KODISH v. OAKBROOK TERRACE FIRE PROTECTION DISTRICT (May 10, 2010)
Brian Kodish began work as a full-time firefighter and paramedic for Oakbrook Terrace in June of 2003. The Illinois Fire Protection Act prohibits the termination of a firefighter without just cause after the firefighter has "held that position for one year." In March of 2004, Kodish went on leave for a knee surgery. While he was out, he received a letter indicating that the District was going to extend his 12-month probationary period for 90 days. Although the evaluations he had received in his first nine months contained some positive remarks, Kodish was evaluated as "fair" in most categories. He was criticized for a lack of motivation, poor communication skills, and an inability to follow authority. Kodish returned from leave on July 24. On August 11, the District Board decided to terminate his employment. He filed suit against the District under § 1983, alleging a violation of his due process rights. He also alleged that he was fired in retaliation for speaking out on union issues. The district court granted summary judgment to the defendants. Kodish appeals.
In their opinion, Chief Judge Easterbrook and Judges Ripple and Rovner reversed. The Court first addressed the existence of a property right, a prerequisite for the federal due process claim. Of course, Kodish had passed his one-year anniversary before he was fired -- but, because of his four-month leave, he only actually worked a little over ten months. The Court looked to Illinois law to determine whether Kodish was protected. No Illinois court has interpreted the "held that position" language of the Act. The Court looked to Illinois decisions with respect to analogous statutes and concluded that the Illinois Supreme Court would read the plain language of the Act to impose a simple twelve-month employment requirement for the creation of the property interest. The Court rejected defendants' other arguments based on the Illinois Municipal Code and the District’s own Wage and Benefit Policy as either in applicable (in the case of the Code) or not controlling (in the case of the Policy) -- and reversed the district court's conclusion that Kodish had no property interest in continued employment. The Court then addressed Kodish's First Amendment claim. It quickly concluded that Kodish met two of the three requirements of the claim -- that the speech was protected speech and that he suffered a deprivation. In addressing the third requirement -- whether he would have been terminated but for his speech -- the Court reviewed his mixed employment evaluations as well as the evidence of the fire chief's opinion of Kodish's speech. The Court disagreed with the district court's conclusion that the only reasonable conclusion for his discharge was his employment record. Although the Court found that theory "plausible," it also found the alternate theory -- that he was fired for his speech -- one that a reasonable jury could adopt. In concluding that the First Amendment claim should have survived summary judgment, the Court also concluded that Kodish presented sufficient evidence that the fire chief's animus should be attributed to the District under either the "singular influence" or the "motivating factor" test.