Termination of Georgia Firefighter Upheld

A Georgia firefighter who was terminated in 2017 following an off-duty vehicle accident, has lost his suit to regain his job. Robert Bailey was fired from the Henry County Fire Department following an investigation into an accident that occurred on June 14, 2017.

The circumstances surrounding the accident, and Bailey’s responsibility for it, remain disputed. He claims to have suffered a head injury in the accident causing his memory to be “blurry,” but he insists he was not the driver. Members of his department report that he was uncooperative with them when they arrived on scene. He was charged with DUI, hit and run, and improper lane change.

The county’s handling of the investigation and termination process became a central focus of Bailey’s lawsuit. Quoting from the magistrate’s decision:

  • On July 5, 2017, Plaintiff met with Chief Willis and Deputy Chief Sherwood, at which time he received notice that his employment was terminated effective July 3, 2017.
  • The reasons listed for Plaintiff’s termination were “Offensive conduct or conduct unbecoming an employee of the County on or off duty” and “Failure to cooperate in drug or alcohol testing.”
  • Plaintiff was given instructions on how to appeal his termination.
  • On July 12, 2017, Plaintiff filed an appeal of his termination.
  • An appeal hearing was set for September 25, 2017.
  • Plaintiff appeared with counsel at the appeal hearing.
  • Hobson- Matthews, the County Manager and hearing officer, had previously reversed decisions made by the fire chief but, in this matter, found that evidence supported Plaintiff’s termination.
  • On February 8, 2018, Plaintiff was acquitted of all criminal charges related to the June 2017 incident.

Bailey filed suit against the county and County Manager Hobson-Matthews claiming a violation of his procedural due process rights, violation of his Garrity rights, breach of contract, and negligence. The case was filed in Henry County Superior Court and removed to US District Court by the county. Several of the claims were dismissed, with the due process claims remaining.

The magistrate summarized Baily’s due process claims as follows:

  • Plaintiff alleges that he had a property interest in his continued employment as a firefighter for HCFD and Henry County’s custom and practice dictated that he could be terminated only for cause after an appropriate notice and hearing, which Defendants failed to provide.
  • Plaintiff additionally alleges that Defendants violated his right to due process by: presuming he was guilty; targeting him for termination even though he had not violated any procedures; not giving him a meaningful hearing in front of a neutral arbiter; and not giving him a meaningful opportunity to contest the charges against him before terminating him.

The magistrate agreed that Baily had a cognizable property interest in his continued employment, and that his claims raised sufficient questions of fact relating to whether his rights were violated. However, the magistrate concluded that specific violations of these due process rights were not “clearly established,” and as a result Bailey loses. Quoting from the magistrate’s decision:

  • Plaintiff must show that the right at issue was clearly established at the time of Defendants’ alleged misconduct.
  • The “salient question” is whether the state of the law gave Defendants “fair warning” that their alleged conduct was unconstitutional.
  • The Court “looks only to binding precedent—cases from the United States Supreme Court, the Eleventh Circuit, and the highest court of the state under which the claim arose—to determine whether the right in question was clearly established at the time of the violation.”
  • As mentioned previously, in Loudermill, the Supreme Court held that an individual with a property interest in his employment must be given an opportunity for some kind of hearing before he is terminated.
  • The Court additionally held that the employee was “entitled to oral or written notice of the charges against him, an explanation of the employer’s evidence, and an opportunity to present his side of the story.”
  • The … right to confront hearsay evidence in a post- termination hearing is not clearly established under federal law and that his reliance on a Georgia Court of Appeals decision for that proposition is misguided.
  • Plaintiff fails to provide any support for his assertion that he had a right to a non-biased arbiter at his post-termination hearing. Moreover, the record belies Plaintiff’s assertion that Hobson-Matthews was biased towards him, as the parties agree that Plaintiff and Hobson-Matthews had not met until the appeal hearing, and Plaintiff testified that while he knew of her, he did not believe she knew who he was.
  • Finally, while the parties have not addressed this issue in their briefing, the undersigned notes that Hobson-Matthews’ purported conduct is not relevant to Plaintiff’s procedural due process claim as it relates to his pre-termination hearing. The undisputed facts establish that Hobson-Matthews did not become involved in Plaintiff’s termination until September 25, 2017.
  • Accordingly, no genuine dispute of material fact exists as to her liability in denying Plaintiff a pre-termination hearing, and summary judgment is appropriate as to Hobson-Matthews.

Here is a copy of the magistrate’s decision, which elaborates in more detail about the case.

Judge Leigh Martin May’s ruling issued last week affirmed the magistrates ruling. Here is a copy of that decision.

For those struggling to square this decision with what we know about the basic tenants of due process, it is important to understand how federal courts handle these cases. As a general rule federal courts appear determined to avoid turning every day disagreements in public employment (and else where) into constitutional questions. While we may disagree whether courts should be applying principles such as this in cases such as Bailey’s… the reality is the courts have taken this position.

In this case, Bailey’s allegations – if true and provable – would violate several basic tenants of due process. However, to hold the county liable under a 42 U.S. Code § 1983-based denial of due process, Bailey would have to prove that the county adopted a policy and practice of violating its employees’ due process rights. The court concluded he could no do so. As a result the county was entitled to qualified immunity and could not be held liable EVEN IF BAILEY’S DUE PROCESS RIGHTS WERE VIOLATED.

To hold the county manager liable, Bailey would have to prove that the right she violated was a “clearly established” right. Despite that fact that basic legal principles of due process have been taught in law school for centuries, been on bar examinations for decades, and the subject of numerous court decisions, the court concluded the rights in question were not “clearly established.”

Why I point this out: it would be easy for municipal officials and fire chiefs to glean from this case – and others like it – that employees’ due process rights can be routinely ignored with impunity. In my opinion, that would be a mistake and I am sure the judges and magistrates responsible for these decisions would agree.

None-the-less, when judges and magistrates use their gifted intellectual capabilities to rationalize why someone whose rights may have been violated, do not have a right to have their case heard on the merits, they perpetuate the perception that these rights do not have to be respected. It’s like a game of judicial-keep-away – where courts prevent someone from having the merits of their case heard. The federal courts did the same thing with the Americans with Disabilities Act – to the point judges handed down rulings concluding that amputees and visually impaired individuals were not truly disabled – and therefore not entitled to a jury trial on whether they could perform the essential functions with or without a reasonable accommodation. That federal court debacle/embarrassment caused Congress to have to go back and amend the ADA to address the problem. Congress had to make it crystal clear to federal judges and magistrates: stop playing judicial keep-away with people’s rights.

The same could be said about this case. If the county and the county manager prevail on the merits, then fine. But short-circuiting access to justice in cases such as this diminishes the importance of complying with the law.

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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