Memphis Firefighter’s Termination for Facebook Post Sent Back to Civil Service

A Memphis firefighter who was terminated for an inappropriate social media post in 2017, will have a chance to have his case reviewed again by the Memphis Civil Service Commission, following a ruling by the Tennessee Court of Appeals. Taurick Boyd, a 19-year veteran of the Memphis Fire Department, claimed he was punished more harshly than similarly situated personnel.

Boyd, an African American, contends that three Caucasian firefighters were disciplined but not terminated for their offensive posts. His post was described in the Court of Appeal’s ruling that quoted from his termination letter as follows:

• On April 26, 2017, you entered a private room on Facebook called Pettyville.
• According to your testimony, this is an adult room where adult humor is shared.
• You stated that you pulled a picture off another Facebook private room that you could not remember the name of.
• This picture displayed a condom displaying a red substance on it that you said represented blood.
• There was a caption under the picture that sated “when girl scouts are better than the cookies.”
• When asked by another person why use a condom you stated “Fuck go Raw.”
• This instantly created a fire storm of negative comments aimed at your posts and comments.

Boyd’s termination was upheld by the Civil Service Commission, who concluded that his disciplinary history differentiated him from the comparison firefighters. He then appealed to the Chancery Court for Shelby County claiming that the Commission failed to fully distinguish him from three similarly situated firefighters who posted even more offensive content, but who were not terminated. The trial court agreed with Boyd, concluding the Commission’s “decision was arbitrary and capricious, and made in violation of Private Boyd’s right to equal protection.”

That prompted the city to appeal to the Tennessee Court of Appeals, claiming the Chancery Court exceeded its discretion. While agreeing that the Chancery Court overstepped its authority, the Court of Appeals remanded the case back to the Chancery Court, concluding as follows;

• Private Boyd maintains that the termination of his employment was arbitrary and capricious and was in violation of his right to equal protection because the MFD failed to follow its rules and imposed discipline disparately among similarly situated employees.
• Specifically, Private Boyd, who is African American, maintains that, while his employment was terminated, other Caucasian employees were not fired although they violated the MFD’s social-media policies in ways similar to Private Boyd.
• An arbitrary and capricious decision is one that is not based on any course of reasoning or exercise of judgment, or one that disregards the facts or circumstances of the case without some basis that would lead a reasonable person to reach the same conclusion.
• A decision unsupported by substantial and material evidence is necessarily arbitrary and capricious.
• Substantial and material evidence is “such relevant evidence as a reasonable mind might accept to support a rational conclusion” and to “furnish a reasonably sound basis for the decision under consideration.”
• Although the disciplinary letter specifies only one of the previous … disciplinary proceedings … the Commissioner held that the other firefighters’ “previous disciplines [were not] as serious as Boyd[‘s].”
• However, the Commissioner failed to explain the basis of his conclusion and did not discuss the other firefighters’ specific disciplinary violations or compare those to Private Boyd’s.
• In short, there is no basis for Commissioner’s finding that “previous disciplines [were not] as serious as Boyd’s.”
• Despite their bad judgment, all the other firefighters cooperated in their respective investigations, conceded that their actions were offensive, issued public apologies, and removed the offensive postings. Private Boyd did all of these things as well.
• In truth, each of these firefighters … posted photos, statements, or memes that were offensive and in clear violation of MFD’s policies.
• These postings caused uproar in the community and resulted in negative press against the MFD.
• Yet, only Private Boyd’s employment was terminated.
• After reviewing the entire record before the Commission, we are concerned that MFD Rule 103.01 was not followed in Private Boyd’s case.
• As set out in context above, MFD Rule 103.01 required the MFD to implement a degree of discipline that was “fair and consistent,” and “progressive in nature unless the offense dictates otherwise.”
• Although the Commissioner’s order notes that “[t]he three firemen to whom Boyd compares himself do not have comparable work histories,” the evidence discussed above shows that [all four] did have similar work histories and similar disciplinary actions.
• MFD Rule 103.01, also requires consideration of “mitigating circumstances”; like [one of the comparators], Private Boyd’s offensive post was made public by a third party.
• The Commissioner did not consider this fact.
• The MFD is further charged with consideration of the “length of service and previous record of the employee.”
• As discussed above, both Private Boyd and [one of the comparators] had previous disciplinary actions, but the Commissioner’s order merely states that “other violations were not minor-sexual in nature nor were previous disciplines as serious as Boyd.”
• However, the Commissioner does not analyze [their] previous disciplinary actions against Private Boyd’s. The Rule also requires consideration of the “[a]ttitude and conduct of the employee throughout the investigation and personal interview.”
• Although Deputy Chief Lock described Private Boyd’s attitude as cavalier and dismissive, it is undisputed that Private Boyd took down the offending post, issued a public apology, and cooperated fully in the investigation—just as [the other comparators] did.
• In short, the Commissioner’s finding that Private Boyd and the other three firefighters are not similarly situated is “[u]nsupported by evidence that is both substantial and material in the light of the entire record.”
• The case is remanded to the trial court for entry of an order vacating the Commission’s decision and remanding to the Commission for further proceedings consistent with this opinion.

Here is a copy of the decision: