Termination of Long Beach NY Firefighter Upheld by Federal Court

A career firefighter in a combination fire department in New York who was terminated after an altercation with volunteer firefighters, has lost his federal court lawsuit that alleged a violation of his First Amendment Rights and retaliation. Brian McNamara filed suit in 2016 claiming his termination from the Long Beach Fire Department was connected to his activities as secretary for the Long Beach Professional Firefighters Association, IAFF Local 287 and an article he authored about union “saves” that appeared in Newsweek.

McNamara was terminated for his behavior after a fire department awards dinner on May 10, 2014. His original complaint contended he was verbally and physically assaulted at event and again at a post-event party at the West End firehouse. When he attempted to file a complaint, he was informed he was under investigation, and fired on trumped up charges. Here is earlier coverage of the original allegations.

According the US District Court Judge Denis R. Hurley, the facts tell a different story:

• “[P]laintiff displayed a pattern of misconduct over the course of several years that escalated up through and including the June 2, 2014 charges that led to his discharge, and which form the basis of the instant action
• Indeed, “Plaintiff himself admits to a history of ‘conflicts’ with fellow professional (union) firefighters within the [LBFD]”.
• Defendants contend that Plaintiff began displaying signs of “insubordinate and emotionally-unstable behavior, and had been critiqued or disciplined by his supervisors as a result” on June 10, 2010, and further recites that Plaintiff engaged in such behavior on August 27, 2011 and was issued formal charges and specifications on December 6, 2011.
• Additionally, in March 2013, Plaintiff was charged with off-duty misconduct “after he was arrested and charged with stalking a former co-worker,” John Ritter.
• On May 10, 2014, Plaintiff attended a “Fire Department installation and awards dinner” at The Sands in Lido Beach, New York.
• Plaintiff was initially “excluded from the invitation list, due to his open contempt for the volunteer fire department, and [its] chief, in particular.”
• Plaintiff was ultimately allowed to attend on the condition that he “not embarrass the department.”
• Plaintiff consumed five beers at the awards dinner.
• After dinner, the City provided a bus to transport LBFD members back to Long Beach, including to the “all-volunteer firehouse in Long Beach known as the Indiana (a/k/a ‘West End’) Fire House, where an after-party was scheduled to take place.”
• Plaintiff was not “explicitly invited to this after-party.”
• Plaintiff attempted to board the bus in The Sands parking lot but his “access was blocked by a volunteer firefighter, ex-Chief Rick DiGiacomo (‘DiGiacomo’).”
• Another volunteer firefighter, Captain Jake Jacobi (“Jacobi”), told plaintiff he could not enter the bus.
• A verbal altercation ensued and Jacobi pushed Plaintiff “in the chest ‘but not hard.'”
• “[T]he feuding parties were separated” and Lieutenant Christopher Gromley drove Plaintiff home.
• Once home, Plaintiff changed out of his uniform into plain clothes and placed a digital audio recorder into his pocket.
• Plaintiff walked over to the Indiana Firehouse, “where he knew or reasonably should have known where DiGiacomo and Jacobi would be located.”
• Plaintiff took the audio recorder because of the “‘friction’ between himself and the volunteers earlier in the night, and ‘in case something happened, [he] didn’t want to be ganged up on and a lie be told by five separate volunteers making up the same lie….'”
• Plaintiff entered the “Den” in the Indiana Firehouse and “immediately walked to the location where Jacobi ‘happened to be’ which was at the bar.”
• As Plaintiff confirmed … “[o]nce inside the Indiana Firehouse a verbal altercation (triggered by plaintiff’s presence) quickly spiraled into a physical altercation, which involved plaintiff punching Jacobi in the face.”
• Deputy Fire Chief Joseph Miller, who is also a Nassau County Police Sergeant, witnessed the event and “attempted to prevent the verbal altercation from escalating into a [further] physical altercation by ‘grabbing’ plaintiff and pulling him towards the staircase to exit the Den.”
• A second round of verbal and physical hostilities ensued on the stairway, during which DiGiacomo called Plaintiff a coward and Plaintiff responded “I’m not a coward! I came here and I’m a coward?”
• Plaintiff did not inform anyone that he was recording the events that night.
• Though Plaintiff has not produced the entire audio recording of the incident in this action, he admits that he altered it.

In dealing with McNamara’s First Amendment and retaliation claims, Judge Hurley identified three factors he must establish to prevail:

• his speech or conduct was protected by the First Amendment;
• the defendant took an adverse action against him; and
• there was a causal connection between this adverse action and the protected speech.

According to Judge Hurley, McNamara arguably could not establish item 1, satisfied item 2, but in the end would lose the case because he was unable to establish item 3, causation. Quoting from the decision:

• Plaintiff has failed to meet his burden of showing the existence of a material fact suggesting that his termination was tethered in some substantial measure to either his union membership or otherwise to protected speech.
• He offers no tangible proof of retaliatory animus, and barely anything by way of conclusory assertions.
• As Defendants note, “[a]ll plaintiff offers is his own conjecture that he was generally disliked by the volunteer firefighters … because of his ‘pro-union’ opinions.”
• Furthermore, Plaintiff admits that other union board members who shared his views on staffing were not terminated.
• With respect to a possible temporal connection to indirectly show causation, Plaintiff has not said that the adverse employment actions were taken shortly after he engaged in allegedly protected activity.
• What is clear, however, is that the disciplinary charges were brought within weeks of Plaintiff’s objectively inappropriate behavior on May 10, 2014, the night of the installation awards dinner when he engaged in verbally and physically abusive behavior towards his colleagues.
• Similarly, the decision to terminate Plaintiff came after a thorough hearing at which Plaintiff was afforded the opportunity to present evidence.
• Accordingly, the Court finds that the record is devoid of facts that would permit the conclusion that there is a causal connection between the allegedly protected speech or association and the adverse employment actions.

Here is a copy of the decision: