A wrongful termination suit filed by an Ohio firefighter-medic who was dismissed after he conducted a court ordered blood-draw from an impaired driving suspect, will proceed according to a ruling by a UD District Court judge. Mitchell Plunk was terminated from the Chester Township Fire Department following an investigation into an incident that occurred on August 8-9, 2020.
Plunk’s termination was the consequence of the township’s medical director’s decision to deny him the right to practice under his medical license. The case raises an important question relative whether a medical director’s decision to disallow a medic to practice, that in turn results in a public employee’s termination due to the loss of required qualifications, is challengeable as a governmental action.
As explained in the decision, the facts are as follows:
- On August 8, 2020, police, and fire-department units, including Plaintiff Plunk’s EMT team, arrived at a one-car crash.
- The driver refused medical treatment, so the EMT team left.
- After clearing the accident, Paramedic Plunk returned to the fire station. His team then completed two reports: a medical run sheet and a fire-incident report. Fire and paramedic employees complete the fire-incident report for all responded calls.
- Police suspected the driver was intoxicated, but she refused field sobriety tests.
- In the late August 8 or early August 9 hours, investigating officers asked for and received a court-approved search warrant authorizing a blood draw from the woman driver.
- The investigating police officers called the Chester Township station house to seek assistance in carrying out the Court search warrant.
- As the most senior officer on duty, Plaintiff Plunk responded, went to the police station, and took the blood sample directed by the Court search warrant.
- Plunk claims that he obtained the driver’s verbal consent to the procedure.
- After completing the draw, Plunk returned to the station and completed a second fire-incident report.
- He was unsure whether he should file a new medical run sheet or whether he should amend the team’s run sheet from earlier, so he emailed his supervisor for guidance.
- Because the Township started the disciplinary process before Plunk could file or amend his run sheet, no run sheet documented the blood draw.
- Dr. Spaner later claimed that Plunk had not filed a run sheet to conceal the blood draw from his review.
- On August 10, Assistant Fire Chief Karen Moleterno, told Dr. Spaner that Plunk had conducted the search warrant blood draw but that the draw had not received prior approval.
- Dr. Spaner then emailed Plaintiff’s supervisor, Chief John Wargelin, and asked him to “take [Plaintiff] off line immediately.”
On August 11, 2020, Plunk was given the opportunity to resign or be fired. He opted to be fired, at which point his chief told him he was fired. However, on August 17, 2020 he was given a “pre discipline hearing” (attendees of Managing Disciplinary Challenges class will immediately recognize the legal problem this creates) at which he was told he was being terminated because of the medical director’s unwillingness to allow him to continue working.
Then on August 19, 2020 the medical director provided a new set of reasons for his decision in a letter to the fire chief, including numerous allegations that were not presented on either August 11 or 17. Thereafter, the township’s Board of Trustees formally terminated Plunk.
Plunk’s lawsuit alleges the fire department’s discipline process and termination violated his due process rights. The township argued that due process is a limitation on governmental actions, and in this case the action in question was a decision by the medical director who is not part of government.
The court acknowledged the dilemma and ruled in favor of Plunk, reasoning as follows:
- The Fourteenth Amendment’s Due Process Clause prohibits state and local governments from depriving someone of property without due process.
- Courts decide whether state action complied with due process using a two-step test. First, the Court examines whether a plaintiff held a protected property interest. Second, the Court decides whether a state actor violated the property interest without sufficient procedures.
- The Due Process Clause constrains only state action. So, private conduct, “no matter how unfair,” generally does not violate due process.
- Defendant Chester Township indisputably engaged in state action when it fired Plaintiff Plunk.
- Dr. Spaner, however, was not a state employee or agent. Thus, if Defendant and Dr. Spaner made their decisions wholly independently, Dr. Spaner’s private decision to deauthorize Plaintiff would not implicate procedural due process.
- But when private actors act in concert with state actors to violate constitutional rights, the private actors’ conduct becomes state action.
- The record here shows a collaborative decision between Dr. Spaner and Defendant to terminate Plaintiff Plunk. In the days following the blood draw, Defendant’s employees worked closely with Dr. Spaner to decide how they would respond. In his deposition, Dr. Spaner reiterated that he and the Township collectively decided what to do.
- The Court cannot extricate Dr. Spaner’s decision to revoke Plantiff’s permission to practice from Defendant’s decision to fire him.
- Even Defendant’s own brief conflates Dr. Spaner’s permission revocation reasons with Defendant’s reasons for terminating him. Certainly, then, “[f]rom [Plunk’s] perspective, it would have been hard to know who” decided to permanently remove him.
- Because the distinction between Dr. Spaner and the Township all but disappeared, their concerted decision to remove Plaintiff was state action.
The court went on to conclude the township appears to have violated Plunk’s due process rights and that he is entitled to proceed with his case. Here is a copy of the decision: