By: Loyd Willaford and Matt Baker
In Way v. Shawnee Township, a firefighter was demoted and then discharged after complaining of a culture of bigotry and racism in the Fire Department. The firefighter first notified the Fire Chief of the problems in the Department, and was told to drop the issue. However, the problems persisted, and the firefighter continued to complain until he was fired. The U.S. District Court for the Northern District of Ohio denied the Township’s motion to dismiss.
Paul Way was a Platoon Chief for the Shawnee Township Fire Department. He had been an exemplary employee and received several promotions. Way was placed in charge of writing the Department’s new standard operating procedures. He researched workplace discrimination law, and became dismayed by the culture of the Department. Specifically, he decried the frequent use of Nazi salutes, racist remarks, and homophobic slurs. Way notified his superior, Fire Chief Todd Truesdale, that such behavior could be a problem for the Department. Truesdale told him to drop the issue but Way persisted. Eventually, Way was demoted two ranks. He became distressed and took a sick day to see a doctor. The Department fired him allegedly for violation of sick day policy. Way sued the Township for retaliation to his protected free speech.
The Township moved for summary judgement, arguing that, although Way’s speech was of public concern, he did not speak to the public but only to his superiors. The court did not find this argument convincing:
Discriminatory practices and cultural bigotry are “inherently” matters of concern to the community. Defendants appear not to dispute that conclusion. Instead, they contend that because Way made his complaints privately, they necessarily were not matters of concern to the public. That argument misses the mark.
The court held that regardless of who he voiced his concerns to, Way was speaking to a public concern. His speech was not disruptive to the department, as he went through the chain of command. This act (speaking out about bigotry) was the proximate cause of his firing.
The Township also claimed that Truesdale acted under qualified immunity, but because there were genuine issues of material fact in question, such a defense would not be properly granted under summary judgement.
This case illustrates the intersection of First Amendment claims and anti-discrimination laws. Public employers will often argue that internal complaints are not matters of public concern and are, therefore not protected speech. As the Court in this case noted, it is not where the speech takes place that determines whether it is of public concern, but the content of the speech. Complaints about unlawful discrimination within a public entity will necessarily be of public concern. This is because the public expects its government entities to abide by anti-discrimination laws.
This case also illustrates another classic dodge that employer sometime use to try to escape responsibility for discrimination. This is the argument the decision maker did not hear the complaints, so the decision must have been unbiased. The Township’s’ trustees relied on the Chief’s recommendation to fire Way. The Chief is the person who received Way’s complaints. Thus, it was reasonable to believe that the Way’s complaints to the Chief motivated the Chief’s recommendation to fire Way. This is called a cat’s paw theory of liability because the discriminating person is using the decision maker as a “cat’s paw” to accomplish his or her discrimination. The law does not allow employers to escape liability under these circumstances.
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