A Howard County firefighter can proceed with his wrongful termination lawsuit stemming from his social media posts related to gun-control legislation, a judge ruled Friday in U.S. District Court.
Senior Judge Marvin J. Garbis said Kevin P. Buker’s Facebook posts could be found to be protected speech, unrelated to his employment as a battalion chief for the county’s Department of Rescue and Fire Services.
“He didn’t say he was espousing the department’s view,” Garbis said. “He’s got a plausible position.”
Buker, a 16-year veteran, posted in January on his personal Facebook page criticizing liberal politicians’ support of assault weapons legislation across the country. He repeated an aide’s suggestion that if someone were to use a liberal to beat another liberal to death, perhaps liberals would be outlawed.
Buker’s lawsuit, filed in October, alleged his comment was protected speech because he was a public employee speaking about a matter of public concern.
Cynthia G. Peltzman, a senior assistant solicitor for the county, said Buker’s post was a joke meant for a private group, and therefore an unprotected personal opinion.
“I didn’t LOL,” Garbis said, to laughter in the courtroom. “What’s the joke about? I hate liberals? How is that an employee grievance?”
“I think it’s the way it’s expressed,” Peltzman replied. “There’s no message here. The mode of expression obscures the message.”
“Is there something about the fire department that is liberal in view?” asked Garbis.
“The real issue is insubordination,” Peltzman said.
Peltzman repeatedly said Buker was not fired for his Jan. 20 comment; rather, it was the culmination of multiple incidents.
Two days after the first post, Buker’s supervisor ordered him to remove it. Buker complied, but then posted a message saying that, in Howard County, only liberals have free speech. A volunteer firefighter responded that he would post whatever he wanted to post, and illustrated it with a photo of a woman raising her middle finger. Buker was fired in March, after “liking” the volunteer’s post.
Garbis, though, repeatedly steered the debate back to the initial Facebook post, asking what specific regulation Buker violated that required him to take it down.
“Is the policy, ‘If you say anything the boss doesn’t like, you’re fired?’” Garbis asked.
Peltzman replied Buker was fired “because of all the statements.”
“You have a rank-and-file firefighter saying he will post what he wants and Buker says, ‘I approve that,’” said Peltzman, referring to Buker’s “liking” the comment.
Garbis was unmoved, saying it will be up to the fact-finder to determine which statements are protected speech and which are not.
“I’m having a hard time seeing how a policy justifies telling him to take down [the first] post,” he said.
Lawyers on both sides agreed that Buker’s case should be joined with a similar lawsuit filed by another volunteer firefighter, Mark Grutzmacher, who lost his position for responding to Buker’s original Facebook post — the one about using a liberal to beat another liberal — with his own criticism of gun control legislation.
Grutzmacher responded that the weapon should be an “assault” liberal — preferably a “fat … ‘high capacity’ one,” and that Buker should “pick a black one” because “those are more ‘scary.’” He has denied intending it as a racial remark.
Buker “liked” that comment and posted that it was “too cool.”
Grutzmacher had been a volunteer firefighter and emergency medical technician for 18 years when he was terminated in February.
Both men are asking the court to return them to their positions. They are represented by Edward S. Robson, a Philadelphia-area lawyer who also volunteers as an EMT.
Discovery in the case is scheduled to go through the end of April.