Court Rekindles Fire Capt.’s Suspension Feud

PHILADELPHIA (CN) - The 3rd Circuit revived the due process claims of a fire captain who claimed he was wrongfully suspended for not having completed a training course despite 17 years on the job.

Edward Smith, a full-time firefighter in Dunmore, Penn., since 1988, was suspended for eight days in 2005 after his supervisors learned he had not completed a required two-week fire academy training course. The borough council held a hearing on the matter and reinstated Smith, without any loss of pay or seniority, finding he was not required to complete the training because he had sufficient training and experience.

The council's decision came six days after a local newspaper published an article, based on a tip from an unknown source that likely came from within the council, stating that Smith had been suspended for failing to properly complete fire academy training.

Smith sued Dunmore, the borough council, Borough Manager Joseph Loftus and five individual council members for due process, defamation, right of privacy violations, and retaliation. When a council member, Leonard Verrastro, allegedly threatened to block Smith's early retirement because of the suit, Smith added another count of retaliation.

A federal judge dismissed most of Smith's claims, leaving just one retaliation claim against Verrastro and Dunmore to proceed to trial. During the trial, the court dismissed Verrastro as a defendant and threw out the claim for punitive damages. A jury found that Dunmore had retaliated against Smith and awarded nominal damages of $1. The court also ordered Dunmore to grant Smith early retirement and pay a reduced amount of attorney's fees and costs. Smith had requested more than $121,000, but the court awarded just over $22,000.

On appeal, a three-judge panel found that Smith's due process claim should not have been dismissed, but it upheld the rest of the trial court's decision.

Council members had defended their decision to immediately suspend Smith rather than wait for the outcome of a hearing because "they 'ha[d] a duty to protect the town' and 'didn't want it to go out there that we had firemen that weren't qualified' and 'd[id]n't want to get blasted in the paper.'"

The appellate panel rejected the argument, citing their colleagues' decision in 2008 over another Dunmore firefighter who was suspended along with Smith.

In both cases, "press coverage, rather than public safety, may have motivated the suspension," Judge Kent Jordan wrote for the court.

Jordan declined to reopen the defamation charge since the defendants proved immunity.

"The fact that a statement is untrue cannot be a basis for exempting it from an immunity for defamation, as such an exception would swallow the immunity whole," the ruling states.

The court also denied Smith's right to privacy claims, noting public interest in firefighter qualifications, and the claims over Verrastro's personal liability, punitive damages and attorneys' fees.

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