Michigan Firefighter’s First Amendment Retaliation Claim Survives

A Michigan firefighter who was fired in 2015 for allegedly falsifying his time sheet, was granted a reprieve by the US 6th Circuit Court of Appeals last Friday, who reversed a trial court decision that would have ended his suit.

Peter Hudson was fired by the Highland Park Fire Department in 2015 after he was accused of claiming extra “Fire Engine Operator” hours on his time sheet. Hudson claimed any misreporting was a mistake, and claimed Fire Chief Derek Hillman sought to retaliate against him for raising concerns about firehouse antics and filing a complaint with OSHA.

As explained in the decision:

• Hudson worked for the Highland Park Fire Department from 2002 to 2015. Over time, he developed a reputation for two things: being an effective firefighter and being outspoken about his Christian faith.
• According to Hudson, the other firefighters had reputations too—for watching pornography in communal spaces and engaging in extra-marital affairs at the fire station.
• All of this created tension. He criticized their behavior, and they responded with disrespectful comments about his religious practices and sexual orientation.
• The back and forth went on for five years.
• For five years, Hudson openly criticized his co-workers’ behavior because he felt it hampered their ability to fight fires.
• Hillman knew about these comments (some concerned his behavior) and tolerated other firefighters’ dereliction of duty (some of them missed calls to respond to fires).
• As time passed, Hudson put his complaints into action.
• A year before his discharge, he filed a complaint with the Occupational Safety and Health Administration, alleging that the firefighters’ cavorting led to deficiencies in the station’s equipment.

After Hudson was fired, and a grievance filed on his behalf went nowhere, he sued the city, Chief Hillman and HR Director Makini Jackson alleging First Amendment retaliation, a violation of Title VII, and a denial of due process. The trial court dismissed the First Amendment retaliation claims, and granted the defendants summary judgment on the remaining claims. Hudson appealed to the 6th Circuit.

In upholding the trial court on all counts EXCEPT the First Amendment retaliation claim, the court concluded that Hudson’s allegations against Chief Hillman COULD… IF PROVEN AT TRIAL … constitute First Amendment Retaliation. As explained by the court:

• Hillman, at some point, told another firefighter that he had grown tired of Hudson’s complaints.
• Hillman eventually found a way to get rid of Hudson: He had falsified his timecard.
• Hillman fired him on that basis, even though he knew another firefighter had done the same thing.
• Hudson tells us why: “[Hillman] objected to Hudson’s religious convictions and wanted to stop Hudson[’s] outspokenness against the immorality of Hillman and the firemen.”
• Considering these allegations as a whole, it’s fair to say that they meet the notice pleading requirements of plausible allegations that Hillman fired Hudson because of his speech.

Here is a copy of the decision:

For the Legal Eagles who take the time to read the case… I know… I know… how can they possibly discuss the First Amendment rights of public employees and not mention Pickering…. I am assuming it is because religion is mixed in with the speech. In other words, it is not a pure speech case, otherwise the city would have a stronger cases applying Pickering. The court did not distinguish the freedom of religion from freedom of speech aspects of Hudson’s claims.