Labor & Employment Law Daily Wrap Up, PUBLIC EMPLOYEES—4th Cir.: Fire captain, terminated after social media posts disparaged transgender people, cannot revive claims, (Jun 6, 2025)

By Todd Harrison, J.D.

He failed to adequately plead Monell liability, which he acknowledged was the linchpin for his claims against the city.

Affirming a district court’s dismissal of a mix of constitutional, statutory and common-law claims brought by a former fire captain against the City of Lynchburg, the Fourth Circuit determined that the fire chief who terminated the fire captain’s employment was not a person with final policymaking authority, and that the fire captain’s single instance of termination was insufficient to show the city had engaged in a persistent and widespread practice. As to his claim for breach of contract, the court explained that Virginia is an at-will employment state, and an employee handbook does not constitute a contract, especially when the handbook itself reiterated that employees are considered to be at-will and that the handbook was not a contract (Misjuns v. City of Lynchburg, No. 24-1782 (4th Cir. June 5, 2025)).

The plaintiff in this case was employed as a fire captain and paramedic by the City of Lynchburg. He also served as a union representative and was the Ward 1 Chair for the Lynchburg Republican City Committee.

Facebook posts. On January 26, 2021, the fire captain posted four cartoons to his Facebook page depicting offensive stereotypes of transgender women in bathrooms and participating in sports. A public outcry soon followed.

In response, the fire captain posted a meme to his Facebook page on February 1, 2021, stating, “In the beginning, God created Adam & Eve. Adam could never be a Madam. Eve could never become Steve. Anyone who tells you otherwise defies the one true God. Threatening anyone for believing & saying this is most likely a hate crime.”

“Interrogations.” On March 25, 2021, the fire captain received a letter from the fire chief ordering him to attend an “interrogation” on March 29 to discuss several citizen complaints regarding the Facebook posts. On May 10, the fire chief suspended the fire captain. A second “interrogation” took place on August 2. Ultimately, on October 18, the fire captain was informed by the fire chief that his employment was being terminated.

Lawsuit. Subsequently, the fire captain filed suit against the city and several individual named defendants, asserting claims for breach of contract against the city, violations of the First and Fourteenth Amendments against all defendants, and a Section 1985 conspiracy claim as well as a wrongful termination claim against the individual defendants in their official capacities.

After a briefing on the city’s motion to dismiss, the parties agreed that the claims against the individual named defendants should be dismissed as duplicative. The district court then dismissed all the claims in their entirety. This appeal followed.

Monell liability. First, the court considered the fire captain’s constitutional claims against the city. To hold a municipality liable for a constitutional violation under Section 1983, a plaintiff must show that the execution of a policy or custom of the municipality caused the violation, otherwise referred to as Monell liability. The fire captain contended that he had pleaded facts sufficient to establish Monell liability under a decision made by a person with final policymaking authority, and a persistent and widespread practice. The court addressed each argument in turn.

Policymaking authority. As for a decision made by a person with final policymaking authority, the fire captain argued that he had plainly established that the fire chief had the authority to fire him and did so. However, the court explained that having the authority to make personnel decisions does not necessarily confer final policymaking authority.

Further, the fire captain never alleged any facts to plausibly support that the fire chief had final policymaking authority. In fact, he demonstrated the opposite, stating that the mayor, vice mayor, and the city manager were “charged with handling personnel matters and enforcing the laws and policies of the City.” He also alleged that the fire chief took actions in response to instructions from one or more of these city officials.

“If an official’s acts are subject to review or supervision by a municipal policymaker, as appears to be the case here, that official does not have final policymaking authority,” said the court, concluding that the fact that the fire chief had the authority to terminate the fire captain did not equate to final policymaking authority sufficient to plead Monell liability.

Widespread practice? Next, the court considered the fire captain’s argument that he had pleaded facts sufficient to show that a practice is so persistent and widespread as to constitute a custom or usage with the force of law. To support this claim, the fire captain pointed to numerous emails between city officials and community activists that occurred in the wake of his Facebook posts.

For example, he contended that the city manager’s comments to one activist that “this is not the sort of culture that the City intends to create or support” had clearly evinced a city ‘policy or custom.’ He argued the same for similar emails sent between the mayor and another activist. However, the court explained that the fire captain had failed to identify exactly what policy or custom these emails were meant to express. “They certainly do not show a policy or custom of terminating employees with whose speech the City disagrees,” said the court.

The only facts that the fire captain alleged concerned his own termination, the court continued, and a custom cannot be established by proof of a single violation. Instead, numerous particular instances of unconstitutional conduct are required to establish a custom or practice. Accordingly, the court found that the fire captain had failed to plead Monell liability through allegations of a persistent and widespread practice.

According to the fire captain, Monell was the linchpin of his case against the city. Because the court found that he had failed to adequately plead Monell liability to enable him to sue the city for constitutional violations, it affirmed the district court’s dismissal of his constitutional claims.

Breach of contract. Turning to the fire captain’s claim for breach of contract, he alleged that the city’s employee handbook constituted a binding contract. The court was not persuaded.

Virginia is an at-will employment state. Although employee handbooks can confer contractual rights and alter what would otherwise be at-will employment, the handbook in this instance expressly mentioned at-will employment and expressly stated that it was not a contract.

“We would be hard-pressed to find something clearer,” said the court. As such, it affirmed the district court’s dismissal of this claim as the fire captain failed to adequately plead the existence of a contract.

Conspiracy. With regard to the fire captain’s claim for conspiracy to deprive him of his civil rights under Section 1985, this claim was brought against the individually named defendants. Because those claims had been dismissed by the parties’ agreement, the court found that this claim failed.

Wrongful termination. Finally, the fire captain alleged a claim for wrongful termination against the individual named defendants. This claim too failed for the same reason as the conspiracy claim.

The case is No. 24-1782.

Judge: Gregory, R.

Attorneys: Richard D. Boyer (Integrity Law Group) for Martin Misjuns. Jennifer Royer (Royer Law Firm) for City of Lynchburg.

Companies: City of Lynchburg

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