‘Quintessential Employee Beef’ Not Protected By First Amendment

Scottie Bagi and Gary Vojtush are firefighters and medics for the City of Parma, Ohio. The Department maintains a Tactical Emergency Medical Specialist (TEMS) unit consisting of specially trained firefighter medics who provide emergency medical support to the city police department’s SWAT team in high-risk situations. In the event of an injury, TEMS unit members treat the police first, then innocent bystanders, then criminals.

In 2011, Bagi drafted a letter expressing his concerns that an upcoming test for assignment to TEMS would not be administered fairly. The letter accused a captain of favoritism in the selection process, and included a picture of the captain and an applicant named Fetter together at a graduation party. Vojtush and other firefighters signed the letter.

An investigation found numerous false allegations in the letter, and the City disciplined both Bagi and Vojtush. Bagi was given a 34-shift suspension, which was reduced in arbitration to eight shifts. The Arbitrator concluded that Bagi did not knowingly make false statements, primarily because he could not believe that Bagi would do so knowing the consequences. Vojtush was given a 13-day suspension, which was reduced in arbitration to two days. All of the other firefighters who signed the letter were suspended for two days.
Bagi and Vojtush filed a federal lawsuit, alleging their discipline was retaliation for their engaging in free speech protected by the First Amendment. A federal appeals court disagreed, and rejected their lawsuit.

The Court found that “speech involves matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community, or when it is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public. In general, speech involves matters of public concern when it involves issues about which information is needed or appropriate to enable the members of society to make informed decisions about the operation of their government. Matters of public concern are to be contrasted with internal personnel disputes or complaints about an employer’s performance.

“This Court has contrasted matters of public concern with ‘the quintessential employee beef: management has acted incompetently.’ If the Court finds that the employee’s personal interest as an employee predominates over any interest he might have as a member of the general public, we are not to intercede.

“Under this test, Bagi’s letter concerned personnel and internal policy issues, not matters of public concern. In essence, Bagi’s letter asserted that the candidates were not treated fairly because a prior test was administered improperly and the upcoming test was likely to be equally unfair because of the Captain supplying answers or study areas to Fetter, a form of personal favoritism. The firefighters did not allege that Fetter was unqualified or that the administration of the 2011 test put the members of the SWAT team or the public at risk; they even stated that Fetter is a good firefighter. Nor did they allege nepotism or corruption.

“Even if the allegations were true, they would not alone show any violation of law because the position was not subject to civil service rules and the Fire Chief had complete discretion in appointing members of the TEMS unit. The letter alleged the quintessential employee beef: management has acted unfairly. This is not a subject of general interest and of value and concern to the public, or one about which information is needed or appropriate to enable the members of society to make informed decisions about the operation of their government. In sum, Bagi’s letter did not discuss matters of public concern and therefore was not protected speech.”

Bagi v. City of Parma, 2017 WL 4857541 (6th Cir. 2017).