CA Federal Court Allows Battalion Chief’s First Amendment Retaliation Claim to Proceed Against Fire Chief

A federal district court in California has ruled that a Battalion Chief with the City of Compton Fire Department may proceed to trial on his First Amendment retaliation claim against the Fire Chief, but dismissed his claims against the City and his state law claims against the Chief.

Battalion Chief Luis Hernandez filed suit last year claiming he was retaliated against for speaking publicly at City Council meetings about staffing shortages and concerns regarding the department’s Arson Unit. 

Chief Hernandez, who has been with the department since 2002, was promoted to Captain in 2007 and to Battalion Chief in 2017. Fire Chief Ronerick Simpson promoted him to Battalion Chief and later appointed him to serve as Arson Unit Director. 

In June 2023, Chief Hernandez spoke during a public comment period at a City Council meeting about department understaffing, referencing concerns about service delivery and response times. 

In February 2024, he again addressed the Council, this time discussing the Arson Unit and asking the Council “to please help us get our Arson Unit back.”  He identified himself as a Battalion Chief but was off-duty and out of uniform.

Chief Hernandez alleged that after these appearances he was subjected to retaliation, including internal investigations, notices of deficiency, and ultimately being denied a promotion to Deputy Fire Chief despite being ranked first on the promotional eligibility list. 

As part of that deputy chief promotional process, Chief Simpson interviewed Chief Hernandez and the other candidates, but recommended another officer for the position.  The City Manager approved the recommendation. Chief Hernandez characterized the denial of the promotion as retaliatory in violation of his First Amendment rights.

Both sides filed motions for summary judgment. The court first concluded that under the Pickering Balancing Test, Chief Hernandez’s City Council comments addressed matters of public concern—department staffing and the Arson Unit—and that he spoke as a private citizen, not pursuant to his official duties. Although the subject matter related to his employment, the court emphasized that speaking publicly before the City Council was not part of his job duties as a Battalion Chief.

Oddly, the court did not address the balancing part of the Pickering Balancing Test, instead moving on to the retaliation allegations. The court rejected Chief Hernandez’s reliance on notices of deficiency and internal investigations as adverse actions, finding insufficient evidence that they were designed to chill protected speech.  However, the court concluded that the denial of the Deputy Fire Chief promotion could constitute an adverse action, particularly given Chief Hernandez’s top ranking on the eligibility list. 

While there was no direct evidence of retaliatory intent, the court found sufficient temporal proximity between Chief Hernandez’s protected speech and the promotion decision to allow a reasonable inference of causation. Because material facts were disputed—particularly regarding the reasons for selecting the other chief over Chief Hernandez—the court declined to grant summary judgment in favor of Chief Simpson on the § 1983 First Amendment claim.

The court also rejected Chief Simpson’s qualified immunity argument, noting that it was clearly established that public employers may not retaliate against employees for protected speech, including by denying promotions. 

The court granted summary judgment in favor of the City, concluding there was no evidence of a municipal policy or custom of retaliation sufficient to establish liability under Monell. It also concluded that Chief Simpson was not a final policymaker for purposes of establishing municipal liability, and that the City Manager’s approval of the promotion decision did not amount to ratification of unconstitutional conduct. 

The court granted summary judgment to Chief Simpson on Hernandez’s claims under California Labor Code §§ 1101, 1102, and 1102.5.  As a result, the case will proceed to jury trial against Chief Simpson on Chief Hernandez’s First Amendment retaliation claims.