Fireman alleges retaliation because of political beliefs

Where a Lynchburg fireman alleged that city officials investigated and disciplined him because of his speech on a political issue, he plausibly alleged a First Amendment retaliation claim.

Background

Martin Misjuns contends that he was subjected to a pattern of intimidation and harassment by the Lynchburg fire department’s superior officers and was arbitrarily and capriciously denied training necessary to be promoted within the department. Further, he asserts that defendants conspired to subject him to adverse employment actions because of his political and religious speech. Defendants have filed a motion to dismiss.

First Amendment

Plaintiff alleges that the individual defendants directed the fire chief to investigate the complaints that plaintiff’s posts related to the Equality Act were transphobic. Further, plaintiff attached to his complaint email communications between the individual defendants and between the individual defendants and the citizen complainants.

The court concludes that these exhibits support the likelihood that individual defendants took employment action against plaintiff or otherwise directed or interfered with such actions. Taking the facts alleged in the light most favorable to plaintiff, plaintiff’s allegations sufficiently demonstrate, based on the close proximity in time between when the emails were sent and when the city-sanctioned investigation into citizen complaints occurred, that city officials disciplined plaintiff based on his protected speech. And taking the facts alleged in the light most favorable to plaintiff, the court concludes that plaintiff has sufficiently alleged that defendants’ retaliatory actions against him were due to religious beliefs, not just political beliefs.

Equal protection

“[T]o survive a motion to dismiss an equal protection claim, a plaintiff must plead sufficient facts to demonstrate plausibly that he was treated differently from others who were similarly situated and that the unequal treatment was the result of discriminatory animus.” Here, the claim fails because plaintiff has failed to allege facts establishing that he and Wormser were similarly situated.

Though both plaintiff and Wormser were city employees, they occupy different titles and positions. Further, they were not involved in the same activity — Wormser did not post political or religious memes on social media, and plaintiff did not participate in a public event in uniform. Nor are there any allegations that Wormser was the subject of multiple citizen and/or employee complaints, as was plaintiff. As plaintiff and Wormser were not similarly situated, plaintiff’s equal protection claim will be dismissed.

Conspiracy

Plaintiff claims that the individual defendants conspired to deprive him of his civil rights. But the individual defendants, as agents of the city acting in their official capacities, cannot conspire with one another unless doing so to engage in activity contrary to the city’s wishes, directive or policy.

Because the individual defendants are entitled to intracorporate immunity for the actions plaintiff asserts they took in furtherance of a conspiracy to deprive him of his civil rights, plaintiff’s conspiracy claim will be dismissed. And even if plaintiff were correct that intracorporate immunity is inapplicable to this case, plaintiff fails to allege sufficient facts to bring a plausible claim under 42 U.S.C. § 1985.

Wrongful termination

In arguing that defendants wrongfully terminated him, plaintiff claims that they “violated Virginia statutory policy ‘enabling the exercise of an employee’s statutorily created right’” as expressed in Virginia Code § 15.2-1512.2, and that they “violated a public policy ‘clearly expressed in the statute’ in Section 15.2-1512.2.” Because he fails to allege what public policy is “clearly expressed” in that statute or how the individual defendants violated it, his claim fails.

Municipal liability

Liability only attaches to the municipality directly in cases where the municipality causes the deprivation “through an official policy or custom.” But plaintiff has alleged no facts indicating that the city acted through an express policy, through decisions of persons with final policymaking officer, through any omission manifesting deliberate indifference to the rights of citizens, or through a practice so persistent and widespread as to constitute a custom or usage with the force of law.

Breach of contract

Plaintiff alleges that the city’s employee handbook constitutes a binding contract between him as an employee and defendants as his employers. But this handbook expressly disclaims representing any contractual rights, defining the nature of the relationship between the city and its employees.

Defendants’ motion to dismiss granted in part, denied in part.

Misjuns v. Lynchburg Fire Department, Case No. 6:21-cv-25, April 20, 2023. WDVA at Lynchburg (Moon). VLW 023-3-209. 25 pp.