Firefighter’s Involvement In Staffing Initiative Protected By First Amendment

Ben Upton was a firefighter for the City of Royal Oak, Michigan. Upton became president of the firefighters’ association in 1996, an office he held until the City terminated his employment.

In the face of the City’s considering substantially reducing firefighter personnel, Upton and the firefighters petitioned in the spring and summer of 2004 to place the manning initiative on the November 2004 ballot. The initiative caused discord between Upton and City officials. On June 8, 2004, during the period when Upton and the firefighters were petitioning for the manning initiative, Upton slipped and fell from a fire truck after fighting a fire. He was admitted to the hospital and diagnosed with shoulder and neck injuries, including acute myofascial cervical strain. From June 8, 2004, Upton was in and out of work, on light duty, sick leave and injury leave.

On April 16, 2005, one of Upton’s neurosurgeons determined that Upton was able to return to work without restriction as of May 4, 2005. Upton did so and worked for several weeks. However, following a check-up on May 31, 2005, the doctor restricted Upton from lifting more than 35 pounds. Upton reported to work the following day but was told to go home.

On June 28, 2005, a City attorney sent a memorandum to the City Manager stating that Upton should be and was offered a police dispatcher position because the City was on weak ground in the workers’ compensation case. The City Manager initially agreed with the attorney’s recommendation, but a day later, withdrew the dispatcher position offer. In November 2005, the City involuntarily retired Upton based on a non-service connected disability.

Upton filed a federal court lawsuit, alleging that the City’s treatment of him was illegal retaliation in response to protected free speech activity – circulating the staffing provisions. A federal appeals court recently allowed Upton’s case to proceed to trial.

The City conceded that Upton’s speech was constitutionally protected and that he suffered an adverse employment action, but argued that Upton failed to present evidence that would support a finding that his speech relating to the ballot initiative was a substantial or motivating factor in the decision to retire him or terminate his employment. In particular, the City argued that there was too much of a “substantial time lapse between the protected speech and the adverse employment action.”

The Court disagreed with the City. The Court noted that “Upton, the president of the firefighter’s union, circulated petitions in support of the manning initiative, which would cause the City charter to be amended and require the City to hire more firefighters. Upton testified on deposition that on or around June 28, 2004, the City Manager called him twice and demanded that Upton pull the manning-initiative petitions back, saying that Upton would regret not having pulled them, that ‘if this goes through, you and the firefighters will end up with a black eye,’ and that ‘this will never end for you.’ Upton testified that the mayor also called him in late June to ask him to pull the petitions. Upton did not pull the petitions and Royal Oak voters approved the firefighters’ manning initiative in November 2004.

“In June 2005, after City managers had conferred and offered Upton a police dispatcher position, the City Manager determined that the offer be withdrawn. Further, at the time that the City applied to the Retirement Board to involuntarily retire Upton in September 2005, three of the four doctors that had examined Upton, including the City’s two doctors that had conducted IMEs, had cleared him to return to work as a firefighter without restriction.

“Viewing the facts and inferences therefrom in a light most favorable to Upton, a reasonable jury could infer that Upton’s political speech and activities in support of the firefighter manning initiative were a substantial or motivating factor in the City’s withdrawal of the offer of the police dispatcher position and in terminating Upton’s employment by retiring him. We are not persuaded by the City’s argument that too much time elapsed between Upton’s protected speech and activities and the City’s adverse actions to support a causal connection between the two. A reasonable jury could conclude based on this evidence that within one and a half months of Upton’s brief return to work in May 2005, the City offered but immediately withdrew the police dispatcher offer, which would have provided Upton benefits and continued his union membership, and then offered him a part-time position with no job security or benefits. A reasonable jury could also conclude that soon after Upton’s physician cleared him to return to work without restrictions on June 30, 2005, the City decided to terminate Upton’s employment by applying to the Retirement Board to involuntarily retire him.”

Upton v. City of Royal Oak, 2012 WL 1662024 (6th Cir. 2012).