Federal appeals panel refuses to dismiss free-speech retaliation suit

Thursday, August 3, 2000

A federal appeals court has refused to dismiss a First Amendment
lawsuit filed by the president of an Oklahoma firefighters’ union, who alleged
he was demoted after disagreeing with the city manager at a city commission

Anthony Stewart was demoted by the city manager of Kingfisher, Okla.,
Reuben Pulis, in October 1997 after he disputed Pulis’ comments regarding
whether additional emergency medical-technician training would be provided for
the firefighters.

Stewart and Pulis publicly disagreed over whether the firefighters
wanted additional EMT training and whether the EMT training would lead to
greater pay for firefighters. Stewart expressed concern that firefighters would
lose their jobs if they didn’t pass EMT training.

One day after the dispute, Pulis replaced Stewart as shift leader at
the fire department.

Stewart sued in federal court in 1999, alleging that he had been
retaliated against for speaking out against Pulis.

Pulis filed a motion to dismiss the case on qualified-immunity
grounds. In civil rights cases, government officials who are sued are entitled
to qualified immunity if they can show that they did not violate a clearly
established constitutional right.

After the district court refused to dismiss the case, Pulis appealed
to the 10th U.S. Circuit Court of Appeals.

On July 27, a three-judge panel of the 10th Circuit unanimously agreed
with the lower court and refused to dismiss the case, sending it back down to
the lower court.

The panel determined in Stewart v.
that the question boiled down to whether Stewart’s speech
constituted a matter of public, rather than private, concern. The panel decided
that Stewart’s speech was a matter of public importance.

Plaintiffs in First Amendment retaliation cases must clear two
hurdles. They must show that their speech was on a matter of public concern and
that their free-speech interests outweigh the government’s interest in
workplace efficiency.

“The parties do not dispute what Stewart said, but disagree about the
proper legal characterization of the speech,” the panel wrote.

“Although Stewart’s comments were brief, he alleged improper and
unlawful conduct by the City Manager affecting the provision of emergency fire
and ambulance services to the city,” the panel wrote. “The additional evidence
provided by Pulis shows that Stewart’s comments were directed at an issue of
ongoing debate in the community. Stewart was not concerned just about his job,
or even just about union members’ jobs, as defendants maintain.”

Patrick Hunt, one of Stewart’s attorneys, said his client’s “speech
was clearly on a matter of public concern and the demotion was disgraceful.”

The attorney who represented Pulis was out of the office and
unavailable for comment.

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