In a recent victory for the LGBTQ+ community, the Fourth Circuit Court of Appeals affirmed the dismissal of a former firefighter’s case, after he was terminated from his Fire Captain position following transphobic social media posts.

Martin Misjuns (now a councilmember) was employed as a Fire Captain and paramedic by the City of Lynchburg. In 2021, Misjuns made a number of offensive posts targeting transgender individuals on his personal Facebook page (which did not identify him as a city employee). The Internet did its work, and citizens quickly identified Misjuns as a city employee and made numerous complaints.

After Misjuns got wind of the complaints against him, he quickly went on the offensive, making a meme which spun his posts as only affirming his religious beliefs and asking his followers to sign a petition requesting the Mayor of Lynchburg to “honor her oath of office to protect and defend the Constitution, by protecting First Amendment rights of political speech.”

Misjuns was fired thereafter and brought the suit at hand. He claimed he was wrongfully terminated from the Lynchburg Fire Department for, among other claims, exercising his freedom of speech and in violation of his right to freely exercise his religion. The United States District Court for the Western District of Virginia dismissed all claims in the case. Just last week, the United States Court of Appeals for the Fourth Circuit affirmed that dismissal.

The case hinged on a legal concept called Monell liability – that a municipality only can be held liable for a constitutional violation if the “execution of a policy or custom of the municipality caused the violation.” Misjuns was unable to show that the City should be held liable, as Misjuns could not identify any policy or custom to which the City was acting pursuant. He could point to no other employees who were terminated because of their speech, and a custom cannot be established by one instance alone.

As an employment lawyer, I hear complaints from employees all the time – “I have a first amendment right to say that.” In private practice, the response is always, “Yes you do; however, we are not the government, and the First Amendment does not protect you from the consequences of that speech.” In this case, while the First Amendment was in the picture for this City employee’s hateful speech, it still was not enough to shield him from the City’s decision in response.