Texas Appeals Court Overturns Ruling in Fort Worth Discipline Case

A Texas Appellate Court has reversed a ruling by a hearing examiner that reinstated a Fort Worth firefighter, because she considered evidence outside of the record. The facts and the procedural setting will take a bit to explain, but are important to understanding the ruling.

Fort Worth firefighter Shea O’Neill got into an off-duty altercation with a retiree at a college football scrimmage. At the time O’Neill has his twin sons (age 7) and a friend (age 8), with him. As explained in the decision:

  • James Woods, a retiree in his late 70s, and his wife were also at the scrimmage.
  • The Woodses claimed that the children were blocking their view of the game; eventually, Woods stood up, approached the boys, and shouted and cursed at them.
  • O’Neill stepped in and confronted Woods.
  • O’Neill then struck Woods with his left hand, and Woods fell to his knees.
  • Woods sustained facial injuries, several cracked and broken teeth, and a bloody nose.
  • After learning about and investigating the incident, the fire chief found that O’Neill had violated several fire-department rules and regulations and indefinitely suspended him (that is, terminated his employment) in July 2015.
  • Among other findings, the chief found by a preponderance of the evidence that O’Neill “sucker punched” Woods while Woods was seated; O’Neill’s hitting Woods was unjustified; O’Neill hit Woods hard enough to bloody his nose and “chip and crack” his teeth; the strike left Woods with a swollen face, headaches, memory loss, and medical and dental costs; and O’Neill was untruthful during the investigation in claiming that he struck Woods to defend the children.

O’Neill appealed under Civil Service Act, which allows him to choose between going before the civil service commission, or an independent hearing examiner. O’Neill selected the latter. As explained by the Court of Appeals:

  • In May 2017, she issued a 45-page decision in which she found that the evidence did not “support findings or conclusions that it was more probable than not that [O’Neill] received due process in the [Fort Worth Fire Department] Professional Standards investigation or that he was untruthful in his statements to Professional Standards.”
  • She further found that the evidence did not support the fire chief’s conclusions that O’Neill was untruthful in claiming that “the physical contact was in the defense of his children”; that O’Neill struck Woods after Woods sat down and looked away; and that the “slap” was of sufficient force to knock Woods to his knees or cause Woods’s injuries.
  • Based on her findings, the hearing examiner granted O’Neill’s appeal and reinstated him with back pay and benefits.

The city appealed the hearing examiner’s ruling to the 342nd District Court for Tarrant County, claiming the hearing examiner considered evidence not in the record, and lacked the authority to order reinstatement to remedy a perceived due process violation. Specifically, the city argued that the hearing examiner conducted “independent Internet research on the side effects of aspirin and Lipitor, both of which Woods testified to taking daily. According to the hearing examiner’s research, both medications can cause ‘unusual bleeding,’ and Lipitor can ‘specifically cause nosebleed.’” The district court upheld the hearing examiner’s ruling, prompting the city to appeal to the Court of Appeals.

Looking at the court’s analysis:

  • The City’s argument hinges on a single sentence in the “Testimony at the Appeal Hearing” section of the hearing examiner’s opinion: “Woods admitted that he took aspirin every day, as well as Lipitor, both of which may cause unusual bleeding; Lipitor may also specifically cause nosebleed. See PubMed Health, www.ncbi.nim.nih.gov/pubmedhealth/blog/2015/US National Library of Medicine, side effects of these medications.”
  • The City contends that the hearing examiner’s Internet research suggests that she determined that the medication—as opposed to O’Neill’s striking Woods—could have caused the bleeding.
  • This conclusion, the City argues, undergirded the hearing examiner’s final determination that O’Neill’s striking Woods was defensive rather than offensive.
  • The hearing examiner ultimately concluded that the slap was defensive and that the evidence did not support the fire chief’s finding that the slap’s force knocked Woods to his knees and caused his injuries.
  • In reaching these conclusions, the examiner determined in the “Analysis” section of her opinion that Woods was standing when O’Neill struck him with a backhanded slap, which the examiner determined was a defensive move, not a “straight-on, in the face ‘sucker punch’ as the [c]hief concluded.”
  • The examiner went on to state that “[t]he form of the slap” supported O’Neill’s claim that he was trying to “remove his children from potential harm” and that a backhanded slap with O’Neill’s injured left arm was “compelling evidence” that the slap was a “defensive measure.”
  • The examiner goes on to conclude that it was “highly improbable” that the slap cracked or broke Woods’s teeth. She further concluded that it was “more probable than not that Woods’s injuries were minor.”
  • After falling to his knees, Woods was immediately back on his feet and threatening O’Neill.
  • Woods had only a “slight nosebleed,” bruising to the left side of his face, and no noticeable swelling. He was able to stand for 30 minutes while waiting for the ambulance.
  • Woods’s injuries were triaged in the emergency room three hours later, and he had no broken bones or brain trauma.
  • He was discharged without treatment for swelling and without pain medication.
  • In her “Analysis” section, the hearing examiner does not mention the medication-side-effects evidence.
  • Even so, we conclude that based on this evidence, the hearing examiner could well have attributed Woods’s bleeding to a cause other than O’Neill’s slap, which could have in turn influenced her determination that O’Neill administered a defensive slap and not an offensive “sucker punch.”
  • A fact issue thus exists about whether the side-effects evidence led the hearing examiner to decide that the evidence overall did not support the fire chief’s findings and conclusions.
  • Accordingly, whether the hearing examiner’s opinion was procured through evidence outside the hearing contrary to the Civil Service Act presents a fact question, and the trial court thus erred by granting O’Neill’s plea to the jurisdiction on the City’s procured-by-unlawful-means claim.
  • We thus sustain this part of the City’s sole issue

The Court of Appeals rejected the city’s argument that the hearing examiner exceeded her authority to order O’Neill reinstated, and remanded the case back to Tarrant County District Court. Here is a copy of the decision:

For those who have been through the Managing Disciplinary Challenges in the Fire Service program, you will recall we discuss the importance of limiting the adjudication decision to evidence in the record. We focus on that from the due process perspective because if the adjudicator relies upon evidence not in the record, it may be a violation of the accused employee’s due process rights. In this case, due process was NOT an issue because O’Neill’s due process rights were not violated by the hearing officer’s use of non-record evidence. It was the city that was aggrieved and it could not argue a due process violation. Instead, the city argued that relying upon evidence outside the record was improper under the Civil Service Act.

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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