By: Loyd Willaford Matt Baker
In Frakes v. Elba-Salem Fire Protection District, a volunteer firefighter alleged he had been unlawfully terminated after complaining about perceived violations by the Fire District. He argues that his firing was retaliation for complaints about unlawful behavior, and therefore that his First Amendment right to free speech was violated. The United States Federal Court for the Central District of Illinois found that some of his claims had merit and moved for a jury trial.
Steven Frakes was a volunteer fire fighter for the Elba-Salem Fire Department. He made numerous complaints regarding the conduct of fellow firefighters, the conduct of the fire district as a whole, and the conduct of other individuals involved in the organization. Of particular note were his complaints regarding a fellow firefighter, Ken Vallas, showing up to work intoxicated and a complaint alleging that the Fire District had violated the Illinois Open Meetings Act. Following years of these complaints, Frakes was terminated by the Fire District, which stated that he was a disruptive employee. One of the Fire District Trustees indicated that the Open Meetings Act complaint had a “little bit” to do with his firing.
Following his firing, Frakes sued the Fire District, claiming that his termination had been retaliation for his speech. The Fire District moved for summary judgement, arguing that Frakes’ speech was not protected.
A public employer cannot retaliate against an employee over protected speech. Speech that touches on a matter of public concern is protected, and so long as it does not unduly disrupt the employer, it is allowed. The Court found that two instances of Frakes’ speech qualified as protected speech:
Frakes has shown that two instances of speech were protected, namely his complaints regarding Vallas coming to work while intoxicated and the allegations regarding violation of the Illinois Open Meetings Act. In these instances, Frakes spoke as a citizen addressing topics of “political, social, or other concern to the community.”
While most of Frakes’ complaints did not qualify as protected speech, these two complaints adequately addressed public concern. Accordingly, the court denied the motion for summary judgement and moved to have the issues of fact decided by a jury.
This case is a good example of how a public employer can violate an employee’s First Amendment right to free speech by firing an employee who complains in the workplace. Here, the Fire District admitted that Frakes’ was an “agitator” which strongly suggested that Frakes’ speech was a motivating factor in firing. However, not all workplace speech is protected. Only that speech engaged in as a private citizen which touches on matters of public concern is protected. Most of Frakes’ complaints involved internal Fire District matters, which were not protected speech. However, at least two involved matters of public concern: complaints about allowing a drunk firefighter on the job, and violations of state law. Once Frakes’ established that he had engaged in protected speech, the Fire District was required to demonstrate that restricting Frakes’ speech is outweighed by the interest of the employer in promoting efficiency. The Court ruled that the Fire District’s interest in a cohesive workplace did not outweigh Frakes’ right to speak on these matters. This was enough to send this case to a jury.
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