By Erica Shelley Nelson and Jordan L. Jones
In Holbrook v. Lee Cnty., a judge in the U.S. District Court for the Middle District of Florida denied in part the employer, Lee County’s summary judgment motion against a former paramedic’s First Amendment retaliation claim for speaking out about the Employer’s Medicare and Medicaid billing practices.
The Plaintiff, a paramedic, was employed by Lee County as a flight paramedic for approximately two years at the time of her termination. She had expressed concerns that a supervisor “was billing Medicare and Medicaid at rates reserved for services provided by helicopters holding a ‘Part 135’ certification with the Federal Aviation Administration.” The Plaintiff believed, based on her own investigation, that her Employer’s Medstar program helicopter lacked a Part 135 certification. The Plaintiff later brought her finding to management and was subsequently terminated after a series of other events where she spoke out against her Employer’s practices. The Plaintiff argued that “she spoke on matters of public concern in her capacity as a citizen and contends that she would not have been subjected to retaliatory conduct absent her constitutionally protected expression.”
Lee County argued that it is entitled to summary judgment because the Plaintiff was “not speaking as a private citizen or on matters of public concern” and that it had other “significant and substantial justification” for terminating the Plaintiff’s employment that was not related to her alleged speech.
The Court noted that “summary judgment is appropriate only when . . . [it] is satisfied that ‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’” The Court also stated that “[t]he law is well established that a state employee may not be discharged in retaliation for speech protected under the First Amendment.”
In order to establish a claim under the First Amendment, a [P]laintiff must show: “(1) she was speaking as a citizen on a matter of public concern; (2) her interests as a citizen outweighed the interests of the State as an employer; and (3) the speech played a substantial or motivating role in the adverse employment action.”
Further, the Court noted that “to determine if an employee’s speech has constitutional protection” at the outset, it must look at “(1) if the government employee spoke as an employee or citizen and (2) if the speech addressed an issue relating to the mission of the government employer or a matter of public concern.”
Lee County asserted that the Plaintiff was speaking as an employee when she discussed the Part 135 certification because “Lee County could not operate the Medstar division and charge for the helicopter services without the necessary certifications and paramedic participation.”
The court held that after reviewing the record, the “material facts supporting . . . [Lee County’s] argument are disputed. Accordingly, summary judgment is denied as to this category of speech.”
The Court took a very narrow view of what constitutes constitutionally protected speech under the First Amendment. Plaintiff alleged that four instances of speech were protected by the First Amendment. While certainly her speech with regard to the patient care reports, and the employer’s procedures for transporting psychiatric patients is likely unprotected employee speech, her speech with regard to the County’s use of deficient and improper equipment–equipment that is used to transport the public–could very well be a “matter of public concern,” and not simply part of the Plaintiff’s day-to-day job duties. As a result, that particular issue could have been decided differently in another jurisdiction.
