Seventh Circuit Allows Firefighter’s First Amendment and Due Process Case to Go Forward

On May 10, 2010, in Kodish v. Oakbrook Terrace Fire Protection District, the Seventh Circuit held that it was error to grant the defendant’s motion for summary judgment.  The court’s ruling allows the plaintiff’s claims, that he was terminated as a firefighter by the District in retaliation for exercising his First Amendment speech rights and that he had a property right in continued employment, to proceed.  The Plaintiff, Kodish, had been a firefighter for over one year. However, during four of his sixteen months of employment, he was on medical leave.  The applicable Illinois Fire Protection Act provides that the right to continued employment in the absence of just cause for termination attaches only after a firefighter “holds” his position for one year or longer.

The court found that “holding a position” for one year or longer did not require one to perform his job duties without interruption during that period.  Rather, the requirement was satisfied by a “colorable appointment coupled with performance of the duties of the position and remuneration therefor.”  Because Kodish met this standard notwithstanding his period of medical leave and interrupted employment, the court found that he had a property interest in continued employment.

With respect to Kodish’s First Amendment claim, the court found that given circumstantial evidence that the District Chief  had  anti-union animus and the District’s Board did not conduct its own investigation, but instead relied upon the Chief, it was error to hold that there was no genuine question of fact and that the District was entitled to Judgment as a matter of law.

The court’s decision is particularly noteworthy for its in-depth discussion of a public employee’s right to continued employment and its construction of what it means to “hold a position.”

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