The Seventh Circuit Court of Appeals has upheld the termination of a Chicago firefighter whose public Facebook posts contained racist and offensive comments directed at Black and Asian Americans. The court concluded that the Chicago Fire Department’s interest in maintaining public trust outweighed the firefighter’s First Amendment rights.

The firefighter, Sam Inendino, served with the Chicago Fire Department from 2005 until his termination in June, 2021. He was assigned to Engine 54 in a predominantly Black neighborhood.

Inendino maintained a public Facebook page that prominently identified him as a Chicago firefighter. His profile photograph showed him sitting on the back of a fire apparatus with his son dressed in firefighter gear, and numerous other photographs on the page depicted him in connection with the department.

The matter began when the Chicago Office of Inspector General received complaints from members of the public concerning comments posted by Inendino on Facebook. Quoting from the decision:

• On October 29, 2019, the Chicago Office of Inspector General (“OIG”) received a complaint from a member of the public concerning a Facebook comment made by Inendino in which he told individuals to “take your ass back over the border where ya belong … gotta go I have a real job.”
• Two days later, OIG received a second complaint from a different member of the public regarding another comment Inendino posted on Facebook.
• The complainant had posted on Facebook a video her daughter had filmed showing a Chicago Police Department lieutenant purportedly assaulting her 16-year-old son. Inendino posted a comment on the video, stating that Inendino had to “go to work to pay for all your scumbag kids that you welfare fucks keep having.”

The Inspector General’s Office investigated Inendino’s public Facebook activity and prepared a twenty-seven-page report examining thirteen posts made over several months. According to the report, the posts targeted Black and Asian Americans, both of whom comprise significant portions of the population served by the department. The report also noted that Inendino worked in a predominantly Black neighborhood, concluding:

• Inendino’s racist and offensive Facebook posts show a contempt for the residents of the community he serves.
• Any minority resident of the City, who was exposed to the content on Inendino’s public Facebook page, could reasonably question whether he would deliver the appropriate level of care were they to need his services as an EMT.

The Inspector General recommended termination. Assistant Commissioner of Labor Relations Brian Casey reviewed the report and recommended that Fire Commissioner Annette Nance-Holt adopt that recommendation. Commissioner Nance-Holt agreed, and Inendino was notified that his employment would be terminated.

The termination cited violations of the City’s personnel rules, the Chicago Fire Department Code of Professional Conduct, and the department’s social media policies. Among other provisions, those policies prohibited offensive content based upon race, ethnicity, national origin, religion, sex, and similar protected characteristics, and required members to avoid conduct that would undermine public confidence in the department.

Following his termination, Inendino challenged the discipline through the grievance procedure contained in the collective bargaining agreement. An arbitrator upheld the discharge, finding just cause for termination.

Inendino then filed suit under 42 U.S.C. §1983, alleging that the City had violated his First Amendment rights by terminating him because of his Facebook posts. The federal district court entered summary judgment for the City, concluding that the posts were not protected speech because they did not involve matters of public concern. Alternatively, the district court held that even if the posts did involve matters of public concern, the balancing test established by the U.S. Supreme Court in Pickering v. Board of Education favored the City. Here is our earlier coverage.

On appeal, the Seventh Circuit agreed with the district court’s ultimate conclusion, but not all of its reasoning. Before we discuss the court’s reasoning, let’s quickly review the key analysis in these cases: the Pickering balancing test. Under this test, a public employee’s speech is protected by the First Amendment provided (1) it is made as a private citizen, (2) concerns a matter of public concern, and (3) the employee’s interest “in commenting upon matters of public concern” outweighs the “interests of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”

Because the parties agreed that Inendino was speaking as a private citizen when he posted, the Seventh Circuit did not have to decide that issue. Instead, it focused on the matter of public concern, which the district court used  to uphold the termination.

The appellate court concluded that the district court analyzed the “public concern” issue too narrowly. The Seventh Circuit explained that even offensive, racist, or crude speech may address matters of public concern when it comments on political or social issues. Reviewing the Facebook posts individually, the court concluded that many could reasonably be viewed as expressing opinions about subjects such as Black Lives Matter protests, the death of Breonna Taylor, or then-Chicago Mayor Lori Lightfoot’s handling of public events – each of which could be matters of public concern. For the sake of argument, the court assumed that all thirteen posts involved matters of public concern, and moved on to Pickering’s third prong: the balancing of interests.

Applying the balancing test, the court concluded that the Chicago Fire Department’s interests substantially outweighed Inendino’s First Amendment interests. The court several facts into account. Inendino had intentionally identified himself as a Chicago firefighter on his public Facebook page. His posts were available to anyone who viewed the page. He served as both a firefighter and EMT in a predominantly Black neighborhood whose residents relied upon him for emergency medical care.

The court rejected the City’s argument that the posts created a risk of disruption among coworkers, noting that nearly twenty months had elapsed without workplace complaints after the posts were made. Nevertheless, the court concluded that other considerations were significantly more important. Specifically, it emphasized that Inendino’s comments demonstrated “a deep disrespect for certain racial groups” and “targeted one of the very groups that Inendino was supposed to serve at his assigned station.” [Note: Those who have been through our social media training will recognize this as what we call the fourth prong of Pickering: when speech causes  actual harm or disruption to the mission and functioning of the employer. The court effectively found Inendino’s comments met this requirement, although it did not use those words.]

Quoting from the court:

• Firefighters … occupy a place of immense trust and authority.
• Residents place their faith in firefighters, often without question, because they believe these dedicated public servants will come to their aid without fear or favor.
• By posting disparaging remarks of Black people, Inendino undermined that trust by demonstrating that he, though a firefighter, did not view all residents as equals but rather looked upon certain communities with racial disdain.
• Moreover, his posts not only damaged the public’s view of his willingness to serve all residents equally but also eroded the public’s trust in the CFD as a whole, a trust that is vital to the department’s effectiveness and success.
• To sum up, on one side of the Pickering scale lies Inendino’s interest in uploading the thirteen Facebook posts, which, we assume, addressed matters of public concern.
• On the other side of the scale, we have the racially offensive content of those posts, Inendino’s decision to identify himself prominently as a Chicago firefighter on Facebook, his indiscriminate dissemination of the posts, Inendino’s targeting of groups that his position requires him to protect, and the unique position of community trust that the CFD must maintain to achieve its public safety mandate.
• On balance, we conclude that the City’s interests in ensuring that the CFD succeeds in performing its public safety mission substantially outweigh Inendino’s interest in posting the contested memes and comments on Facebook.

With that, the Seventh Circuit affirmed summary judgment in favor of the City of Chicago.