Fire Law Blog Fire Service and Public Safety Legal Issues Blog by Curt Varone
A Texas firefighter accused of bringing a female into the fire station and acting inappropriately has been ordered to be reinstated by Thirteenth Court of Appeals of Texas.
Alejandro Gonzalez was terminated (“indefinitely suspended” in Texas parlance) by the Mission Fire Department in April 2010. The incident allegedly occurred on February 18, 2010, and according to The Monitor, Gonzalez was disciplined for allowing a woman into restricted areas of the station after hours and engaging in “inappropriate behavior”.
Gonzales contested the discipline, and following an evidentiary hearing an arbitrator ruled that he should be reinstated, concluding that eye witness testimony from a female co-worker who claimed to have observed “a woman wearing only a T-Shirt and panties bouncing up and down on Gonzalez’s lap” to be not credible. He was given a 10 day suspension for permitting a female in the station after hours.
The city initially appealed the reinstatement order to District Court arguing the arbitrator exceeding his authority. The District Court upheld the arbitrator’s decision in December 2010, and the city appealed to the 13th Court of Appeals. The Appeals Court agreed with the arbitrator and the District Court that Gonzales should be reinstated with a 10 day suspension.
The city’s only recourse now is to appeal to the Texas Supreme Court.
In the Fire Department Administrative Investigations and Enforcing Discipline program we discuss the importance of a hearing officer making written factual determinations, including assessing the credibility of witnesses. Such a practice is often viewed as going against the “less in more” philosophy (ie. the more you put in the easier it is for an appellate court to pick it apart – so always put in the least amount possible). The “less is more” philosophy is old-school.
The truth is, a well-reasoned written decision that incorporates factual determinations, the weight that certain evidence carries, and the credibility of witnesses, truly can “appeal-proof” a decision from being overturned. This case would certainly seem to be one where the arbitrator’s decision has withstood the scrutiny of two courts.
