Federal Fourth Circuit Holds Firefighter’s Protected Speech Does Not Protect against Unrelated Violations of County Policy

By Anthony Rice

In Minnick v. County of Currituck, the Fourth Circuit Court of Appeals dismissed a firefighter’s First Amendment claim because there was no link between his speech and the “adverse employment action.” Although Firefighter Minnick had attempted to organize a union and had engaged in arguably protected speech by complaining about equipment and safety issues, the court found no proof that his speech was a “substantial factor” in his forced transfer and later discharge.

Minnick was employed as a paid firefighter by the North Carolina Currituck County Fire Department. Minnick’s initial 6 month review found “some small issues with [volunteer] Fire Department members.” Subsequently, Minnick became the subject of multiple personnel incident reports. First, Minnick violated county policy when, without first seeking approval from his supervisors, he arranged for a co-worker to cover his shift. Second, Minnick failed to show up for work. Finally, Minnick arrived an hour and fifteen minutes late for work, out of uniform and not ready to work. The third report also described an incident where Minnick parked his personal vehicle in the no-parking zone for his entire twenty-four-hour shift. During Minnick’s next shift, lasting eighteen hours, he parked the vehicle in the same area the entire time. Both times, Minnick refused to move his car when asked.

Minnick was able to successfully organize a local affiliate of the International Association of Fire Fighters named the Currituck County Professional Fire Fighters and EMS Local 4633; its membership elected Minnick as President. During Minnick’s employment with the County, and his tenure as President of Local 4633, he spoke out concerning safety issues and unsafe practices that he observed at the various stations. 

Minnick contends that his incident reports were retaliation for speaking out about safety concerns. Specifically, he asserts retaliation in the form of (1) a transfer, and (2) the termination of his employment.  On the first of those actions the court found that the transfer was not retaliatory since, according to Minnick’s own testimony, he was “excited” about the Corolla transfer and felt that “the move to Corolla was for the best.” The court found that the termination was also not retaliatory, because it followed four discrete incident reports that were brought about by Minnick’s repeated infractions and numerous complaints about his attitude toward volunteer firefighters. The court held that

the two adverse employment actions Minnick seeks to connect with his free speech claim are not linked by any evidence to his expressions on safety concerns beyond the unremarkable coincidence that Minnick happened to speak at the same time he was violating settled policy. As we explained in Goldstein, to satisfy the third McVey prong, “the protected speech [must be] a substantial factor in the decision to take the allegedly retaliatory action.” Minnick has not pointed to any evidence that his circumscribed discussions of safety concerns could have been a substantial factor in either his transfer to Corolla Station or his termination from employment by the County.

The Court of Appeals concluded:

“The only suggestion that Minnick’s union activities were the bases for any employment actions comes from Minnick’s own conjecture. … Without more, Minnick’s conjecture that adverse employment actions were retaliatory or discriminatory is not sufficient to withstand summary judgment.”