Buker v. Howard County

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

Kevin Patrick Buker * 12124 Main Street * Libertytown, Maryland 21791 * * Plaintiff * * v. * Case No. * Howard County * 3430 Court House Drive * JURY TRIAL DEMANDED Ellicott City, Maryland 21043 * * and * * William F. Goddard, III, * Chief of the Howard County Department * Of Fire and Rescue Services * c/o 3430 Court House Drive * Ellicott City, Maryland 21043 * (In his official and personal capacity) * * and * * John Jerome * Assistant Chief of the Howard County * Department of Fire and Rescue Services * c/o 3430 Court House Drive * Ellicott City, Maryland 21043 * (In his official and personal capacity) * * and * * John S. Butler * Deputy Fire Chief of the Howard County * Department of Fire and Rescue Services * c/o 3430 Court House Drive * Ellicott City, Maryland 21043 * (In his official capacity) * * Defendants *

Case 1:13-cv-03046-MJG Document 1 Filed 10/12/13 Page 1 of 11

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CIVIL ACTION COMPLAINT

Plaintiff, Kevin Patrick Buker, by and through his undersigned counsel, now files this

civil rights action in response to unconstitutional employment actions taken by his former

employer, Howard County Department of Fire and Rescue Services. In support of his claims, Mr.

Buker avers the following:

PARTIES

1. Mr. Buker is a citizen of the State of Maryland, and resides at 12124 Main Street

in Libertytown, Maryland.

2. Defendant, Howard County, is a political subdivision of the State of Maryland,

and its administrative offices are located at 3430 Court House Drive Ellicott City, Maryland

(“County”). Howard County Department of Fire and Rescue Services is an agency of the

County.

3. At all times relevant to the present action, Defendant, William F. Goddard, III,

was/is the Chief, Fire Administrator and Director of the Howard County Department of Fire and

Rescue Services, and is being sued in his official and personal capacity for employment actions

he took against Mr. Buker.

4. At all times relevant to the present action, Defendant John Jerome was/is the

Assistant Chief of the Howard County Department of Fire and Rescue Services and is being sued

in his official and personal capacity for actions he took against Mr. Buker.

5. At all times relevant to the present action, Defendant John S. Butler was/is the

Deputy Fire Chief of the Howard County Department of Fire and Rescue Services and is being

sued in his official capacity for the promulgation of an unconstitutional policy.


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JURISDICTION

6. This Honorable Court has jurisdiction over the claims set forth herein pursuant to

28 U.S.C. § 1331.

FACTUAL BACKGROUND

7. Mr. Buker is a 15 year veteran of the Howard County Department of Fire and

Rescue Services having joined the department in 1997, after serving in the United States Marine

Corps from 1989 until 1995.

8. At all times relevant to the present action, Mr. Buker was employed by the

County as a Battalion Chief for the Howard County Department of Fire and Rescue Services.

9. Mr. Buker maintains a Facebook account. The account does not identify Howard

County Department of Fire and Rescue Services as his employer, or otherwise insinuate any

association between him and any Defendant. At all times relevant to this action, Mr. Buker’s

Facebook account identified him as “Kevin Buker,” rather than his full name, “Kevin Patrick

Buker.”

10. Mr. Buker was permitted to make Facebook postings while on duty with the

Howard County Department of Fire and Rescue Services.

11. On Sunday, January 20, 2013, while working a twenty-four (24) hour shift as the

Battalion Chief for the Second Battalion of the Howard County Department of Fire and Rescue

Services, Mr. Buker “posted” a satirical comment concerning assault weapons legislation that

was pending in several jurisdictions in the United States on his Facebook page. The post could

only be viewed by Mr. Buker’s Facebook “friends,” i.e. those individuals selected or approved

by Mr. Buker, not members of the general public. At the time of his posting, Mr. Buker had

approximately four hundred fifty (450) “friends.” Specifically, Mr. Buker stated in his post, “My


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aide had an outstanding idea …. Let’s kill someone with a liberal … then maybe we can get

them outlawed too! Think of the satisfaction of beating a liberal with another liberal … its almost

poetic….”

12. Mr. Buker’s Facebook friends subsequently responded to his initial post.

13. One of Mr. Buker’s Facebook friends, Mark Grutzmacher, responded to the post

stating, “But … was it an ‘[assault] liberal’? Gotta pick a fat one, those are the ‘high capacity’

ones. Oh pick a black one, those are more ‘scary.’ Sorry had to perfect on a [sic] cool idea!”

14. The aforementioned response, when read in its proper context refers to provisions

in assault weapons legislation pending at the time which categorizes weapons by their size,

magazine capacity and/or color.

15. Mr. Grutzmacher was a Howard County Department of Fire and Rescue Services

volunteer who received certain valuable benefits from the County.

16. Mr. Grutzmacher has since been terminated by the County for the above-stated

post and has initiated or is about to initiate a separate action in this Court on that basis.

17. Mr. Buker “liked,” a way of acknowledging a post on the Facebook platform, Mr.

Grutzmacher’s comment, and then sent the following reply comment: “Lmfao! Too cool, Mark

Grutzmacher.”1

18. Back and forth comments concerning assault weapons legislation continued for

several hours. These comments were made by Mr. Buker’s other Facebook friends.

19. Although Mr. Buker has never been told how his conversations with his Facebook

friends ever came to the attention of the Howard County Department of Fire and Rescue

Services, said conversations came to the attention of Assistant Chief Jerome.

1 “Lmfao” is internet slang for “laughing my fucking ass off.”


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20. Assistant Chief Jerome, Mr. Buker’s supervisor, ordered Mr. Buker to remove his

original Facebook post regarding assault weapons legislation on January 22, 2013.

21. Mr. Buker complied with Assistant Chief Jerome’s request on January 23, 2013.

22. Mr. Buker made the following post to his Facebook friends when he deleted his

original post regarding assault weapons legislation:

To prevent future ‘butthurt’ and comply with a directive from my supervisor, a recent post (meant entirely in jest) has been deleted. So has the complaining party. If I offend you, feel free to delete me. Or converse with me. I’m not scared or ashamed of my opinions or political leaning, or religion. I’m happy to discuss any of them with you. If [you’re] not man enough to do so, let me know, so I can delete you. That is all. Semper Fi! Carry On. 23. Mr. Buker’s January 23, 2013, post generated further comments among his

Facebook friends. In response to a Facebook friend’s comment that “[a]s long as it isn’t about

the FD, shouldn’t you be able to express your opinions,” Mr. Buker posted the statement:

Unfortunately, not in the current political climate. Howard County, Maryland, and the Federal Government are all Liberal Democrat held at this point in time. Free speech only applies to the liberals, and then only if it After [sic] tis in line with the liberal socialist agenda. County Government recently published a Social media policy, which the Department then published it’s own. It is suitably vague enough that any post is likely to result in disciplinary action, to include this one. All it took was one liberal to complain … sad day. To lose First Amendment rights I fought to [ensure]. Unlike the WIDE majority of Government I serve. 24. Apparently Mr. Buker’s January 23, 2013, Facebook posts inexplicably also came

to the attention of the Howard County Department of Fire and Rescue Services.

25. The Howard County Department of Fire and Rescue Services thereafter moved

Mr. Buker out of field operations on January 25, 2013, pending the results of an internal

investigation.

26. On February 17, 2013, a volunteer firefighter with the Howard County

Department of Fire and Rescue Services posted on the internet a picture of an elderly woman


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with her middle finger extended. Under the picture the volunteer firefighter posted the statement,

“This page, yeah the one you’re looking at, it’s mine. I’ll post whatever the fuck I want.” Above

the picture, the volunteer firefighter posted the statement, “for you Chief.”

27. Mr. Buker “liked” the volunteer firefighter’s February 17, 2013 posting.

28. The Howard County Department of Fire and Rescue Services has never identified

any disruption to the workplace that occurred as a result of any of Mr. Buker’s aforementioned

Facebook activities, or the responses to those activities by third parties, and no such disruptions

occurred.

29. The Howard County Department of Fire and Rescue Services thereafter

completed its investigation into Mr. Buker’s Facebook postings. The County and Chief Goddard

subsequently terminated Mr. Buker’s employment effective March 6, 2013.

30. In two memoranda from Chief Goddard to Mr. Buker, dated February 25, 2013

and March 14, 2013, respectively, Chief Goddard identified sections of General Order 100.21 –

Social Media Guidelines, Section 1.115 of the Howard County Code, the Howard County

Maryland Employee Manual and General Order 100.22 – Code of Conduct that Mr. Buker

supposedly violated. Each of these things was adopted by the County, Chief Goddard and/or

Deputy Chief Butler and was an official policy thereof.

COUNT I VIOLATION OF THE FIRST AMENDMENT TO THE UNITED STATES CONSTITUTION

31. Mr. Buker incorporates herein by reference paragraphs 1 through 30 of this

Complaint as if set forth herein at length.

32. The First Amendment to the United States Constitution bars state action that

infringes upon Free Speech.


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33. Mr. Buker’s Facebook postings at issue, i.e. the ones reviewed above in the

preceding paragraphs of this Complaint, and the ones which caused his termination of

employment, are protected speech under the First Amendment to the United States Constitution

in that they constitute a public employee’s speech on a matter of public concern.

34. General Order 100.21 - Social Media Guidelines as drafted, and as Defendants

applied it to dismiss Mr. Buker, violates the First Amendment in that it bars public employee’s

speech on matters of public concern that does not disrupt the workplace.

35. Section 1.115 of the Howard County Code, the portions of the Howard County

Maryland Employee Manual at issue in this case, and General Orders 100.1-100.2, as Defendants

applied them to Mr. Buker, violate the First Amendment in that they bar public employee’s

speech on matters of public concern that does not disrupt the workplace.


Maryland Employee Manual at issue in this case, and General Orders 100.1-100.2, and

Defendants’ application of them, caused Mr. Buker to be deprived of his First Amendment

rights.

37. The Defendants are state actors and/or acting under the color of state law.

38. The County and Chief Goddard have also terminated the employment of Mr.

Grutzmacher and at least one other individual in violation of the First Amendment and pursuant

to County policy.

39. Pursuant to 42 U.S.C. § 1983, a private citizen may bring a private cause of action

against any “person who, under color of any statute, ordinance, regulation, custom, or usage of

an State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen


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of the United States or other person within the jurisdiction thereof the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws ….”

WHEREFORE, Kevin Buker respectfully requests that this Honorable Court grant him

the following relief:

(1). Issuing an affirmative injunction immediately reinstating him to his position

as a Battalion Chief for the Howard County Department of Fire and Rescue Services at the salary

and benefit level he would have achieved but for his improper termination;

(2). Payment of all back salary and benefits from the date of his termination to the

date of his reinstatement with legal interest;

(3). Compensatory damages for mental anguish and distress caused by the

Defendants’ improper/illegal actions;

(4). An award of attorneys’ fees, legal costs, and expert fees in accordance with

42 U.S.C. § 1988; and

(5). Such other relief as the Court deems just and proper.

COUNT II VIOLATION OF THE FIRST AMENDMENT TO THE UNITED STATES CONSTITUTION

40. Mr. Buker incorporates herein by reference paragraphs 1 through 39 of this

Complaint as if set forth herein at length.

41. The First Amendment to the United States Constitution bars state action that

infringes upon an individual’s ability to associate with a group, unless the state actor can

demonstrate that the group has illegal objectives, the individual was aware of the illegal


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objectives and the individual participates in the group with intent to advance the group’s illegal

objectives.

42. Mr. Buker’s Facebook friends that commented on the postings at issue in this case

constitute a “group” for First Amendment purposes.

43. Mr. Buker was not aware of any illegal purposes of the group and none exist.

44. Mr. Buker’s association with the group was protected by the First Amendment.

45. General Order 100.21 - Social Media Guidelines as drafted, and as Defendants

applied it to Mr. Buker, violates the First Amendment in that it bars public employee’s speech on

matters of public concern that does not disrupt the workplace.


Maryland Employee Manual at issue in this case, and General Orders 100.1-100.2, and

Defendants’ application of them, caused Mr. Buker to be deprived of his First Amendment

rights.

47. Defendants terminated Mr. Buker’s employment because of his association with

the group.

WHEREFORE, Kevin Buker respectfully requests that this Honorable Court grant him

the following relief:

(1). Issuing an affirmative injunction immediately reinstating him to his position

as a Battalion Chief for the Howard County Department of Fire and Rescue Services at the salary

and benefit level he would have achieved but for his improper termination;

(2). Payment of all back salary and benefits from the date of his termination to the

date of his reinstatement with legal interest;


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(3). Compensatory damages for mental anguish and distress caused by the

Defendants’ improper/illegal actions;

(4). An award of attorneys’ fees, legal costs, and expert fees in accordance with

42 U.S.C. § 1988; and

(5). Such other relief as the Court deems just and proper.

Respectfully submitted,

LAW OFFICE OF ROBSON & ROBSON LLC:

By: /s/ Edward S. Robson, Esquire Pro Hac Vice Admission (pending 10/12/13)

920 Matsonford Road Conshohocken, PA 19428

Attorney for Plaintiff Kevin Buker (610) 825-3009 (610) 825-2620 (fax) [email protected]

/s/ David G. C. Arnold, Esquire Pro Hac Vice Admission (pending 10/12/13)

920 Matsonford Road Conshohocken, PA 19428

Attorney for Plaintiff Kevin Buker (610) 397-0722 (610) 397-0723 (fax) [email protected] /s/

Howard B. Hoffman, Esquire Attorney at Law

Federal Bar No. 25965 600 Jefferson Plaza, Suite 304 Rockville, Maryland 20852 (301) 251-3752 (301) 251-3753 (fax) [email protected]


mailto:[email protected]



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DEMAND FOR JURY TRIAL The Plaintiff, by his undersigned attorney, hereby demands a jury trial as to all issues triable by a jury. Respectfully submitted, /s/ Edward S. Robson, Esq.


Documents

Buker v. Howard County