Texas Firefighter Loses Suit Over Discrimination and Due Process

A McAllen, Texas firefighter who was fired twice and reinstated both times has lost a discrimination and due process lawsuit against his department and fire chief.

Robert Vargus was fired by the McAllen Fire Department in 2011 following an apparatus backing mishap in 2010 that was not properly reported. A hearing officer reduced his termination to a 10-day suspension without pay. He was fired a second time in 2013 because he worked as a substitute teacher while recuperating from an off-the job injury in 2012. A hearing officer ordered him reinstated subject to a five-day suspension.

Last February, Vargus filed suit in federal court against the City of McAllen and Fire Chief Rafael Balderas alleging discrimination and harassment on account of age and disability under Chapter 21 of the Texas Labor Code, and §1983 due process violations (procedural and substantive).

On Monday, US District Court Judge Micaela Alvarez granted the city and Chief Balderas’ motion to dismiss the suit in its entirety. In Judge Alvarez’s own words:

  • Upon review of the complaint and Defendants’ motion, it is clear to the Court that Plaintiff has failed to allege any viable claim for discrimination under Chapter 21 of the Texas Labor Code.
  • Plaintiff makes numerous claims of “hazing,” “harassment,” “retaliatory behaviors,” and “hostile work environment.” Hostile work environment generally entails ongoing harassment, based on the plaintiff’s protected characteristic, so sufficiently severe or pervasive that it has altered the plaintiff’s terms or conditions of employment. Here, however, Plaintiff has not even sufficiently claimed one single isolated incident of discrimination on any protected ground.
  • By way of example, Plaintiff asserts that in 2006, a co-worker once left a work station without Plaintiff, which amounted to “an incident of hazing,” and in 2008, his reputation was “tarnished” when the City refused to reimburse him for certain academic coursework. These isolated events, devoid of any allegations of protected activity or status and not implicating similarly situated employees, adverse employment actions, or impairment in Plaintiff’s terms or conditions of employment, clearly fail under federal pleading standards.
  • As Defendants note, Plaintiff briefly mentions “age” and “disability” on three occasions. Specifically, he claims that during recruit school in 2005, he was “hazed and intentionally stuck in the face” by an unnamed individual and endured a hostile work environment “in the form of questions to his fitness” due to his age. He also claims he suffered discrimination because “Captain Hernandez stated in a memo that he perceived that the Plaintiff is disabled because of the need for counseling was [sic] imposing inconvenient accommodation,” and in 2010, his wife was diagnosed with cervical cancer, which “creat[ed] more stress and ill will among certain members of the Department.” This is the closest Plaintiff comes to a discrimination claim based on disability.
  • However, the Court reiterates that these vague and conclusory allegations do not sufficiently state a claim under the Act.
  • Perhaps more importantly … Plaintiff has failed to properly plead that he exhausted the statutory prerequisites under the Act, and the limitations period to file suit before this Court has clearly lapsed for any of these isolated “discriminatory” incidents.
  • Based on these considerations, the Court finds dismissal of Plaintiff’s claims is warranted. Plaintiff’s Chapter 21 claims are therefore DISMISSED.
  • Plaintiff alleges Defendants violated his due process rights under the Fourteenth Amendment. The Due Process Clause of the Fourteenth Amendment protects individuals against deprivations of life, liberty or property without due process or due course of law.
  • To prevail on a due process claim in the public employment context, a plaintiff must first show that he had a cognizable property interest in his continued employment. Where the plaintiff does not possess a property right, no process is due.
  • Property interests are not created by the Constitution or incidental to public employment; instead, they derive from “state statute, local ordinance or rule, written contract, or mutually explicit understanding enforceable under state law as an implied contract.”
  • Ultimately, whether a property interest exists must be determined by reference to Texas state law.
  • In Texas, an employment relationship is presumed to be at-will unless that relationship has been expressly altered by contract or rules or policies limiting the conditions under which the employee may be terminated.
  • “The hallmark of a property interest ‘is an individual entitlement grounded in state law, which cannot be removed except ‘for cause.’”
  • Here, Plaintiff does not direct the Court to any contract, policy or rule from which an interest in continued employment might stem; however, Defendants do not dispute that Plaintiff has a property interest in his employment pursuant to the Texas Civil Service Act.
  • Even if a property right exists, however, Plaintiff’s claims must fail, as he has failed to allege that he was deprived of his property right without due process of law.
  • In their motion, Defendants contend that (1) Chapter 143 of the Texas Civil Service Act outlines all the due process to which Plaintiff is entitled, and (2) Plaintiff has “plead[ed] himself out of a due process claim” by asserting he was afforded these procedural protections under the Act and that “the due process resulted in the termination being overturned.”
  • In his complaint, Plaintiff expressly alleges that he received notice and a pre-termination hearing where he was provided an opportunity to present his version of the facts, and that he fully availed himself of appellate procedures under the Act before an impartial hearing examiner, which resulted in his reinstatement effective October 28, 2013. The Court finds these procedures constitutionally sufficient, and Plaintiff’s response does not inform the Court what additional process he believes he was entitled to.
  • Similarly in his complaint, Plaintiff failed to identify how any of the afforded procedures were inadequate, merely noting that Chief Balderas was “hostile” and “lacked good faith” and Defendants engaged in “arbitrary and capricious” actions.70 The Court finds these allegations conclusory and contradicted by the facts alleged in Plaintiff’s complaint, and the later avertment implicates substantive, rather than procedural, due process concerns. Thus, particularly in light of the extensive appellate review afforded to Plaintiff, the Court finds Plaintiff has failed to state a claim for a procedural due process violation and will proceed to analyze the substantive due process claim.
  • An employee alleging a substantive due process violation must show that the termination of his employment was “arbitrary and capricious.” That is, he must demonstrate that regardless of the fairness of the procedures implemented by the employer, the decision to terminate him “was made without a rational connection between the known facts and the decision or between the found facts and the evidence.”
  • Proving that the employer’s action was arbitrary and capricious is “a high bar,” requiring the plaintiff to prove that “the abuse of power . . . shocks the conscience.” An allegation that reasonable minds could disagree on the propriety of termination is insufficient.
  • Here, Plaintiff claims that Defendants acted arbitrarily and capriciously by “[1] improperly relying on a prior disciplinary action to support the termination, [2] failing to give the Plaintiff proper notice of potential disciplinary actions and placing allegations, [3] treating the Plaintiff differently than similarly situated [f]irefighters and [4] placing documentation in Plaintiffs ‘G’ file that have been utilized to impact [P]laintiff’s career opportunities without disclosing to [] Plaintiff.”
  • These contentions are too conclusory and speculative and therefore not entitled to the assumption of truth; however, even if considered, they are not so arbitrary and capricious as to shock the conscience.
  • [T]he Court finds that Defendants’ decision to terminate Plaintiff was not so irrational as to constitute abuse of power that shocks the conscience. Thus, Plaintiff’s claim for violations of substantive due process must also fail.

Here is a copy of the ruling: VARGUS v MCALLEN Order on Motion to Dismiss

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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