Texas Lieutenant Loses Progressive Discipline Appeal

A Texas lieutenant who was suspended indefinitely for being rude on an emergency run, and who convinced an independent hearing examiner that the penalty violated principles of progressive discipline, has lost his appeal to keep his job.

Fabian Scott Butler, a lieutenant with the Big Spring Fire Department, was suspended indefinitely following a run to the Federal Correction Institute at Big Spring. Lt. Butler was denied access to a patient in a secured area because he did not have his ID with him. According to his notice of indefinite suspension, he was “rude and discourteous to the FCI staff.” (Note: In Texas, an indefinite suspension means termination).

Lt. Butler appealed the punishment to an independent hearing examiner. The hearing examiner ruled that:

• Butler was negligent for not having his ID at the FCI, that this omission caused Butler to be unable to do his duty, and that he was rude and/or derogatory “in some manner.”
• The … incident occurring at FCI was not so extreme that it justified an indefinite suspension.
• Butler’s disciplinary record involve[ed] eleven incidents occurring over approximately a five-year period.
• [O]ut of the previous eleven incidents, Butler was only formally disciplined on two occasions

The hearing examiner then rejected the indefinite suspension as an appropriate “just cause” penalty, concluding:

• Because [Butler] never suffered increasing levels of discipline he was never confronted in a meaningful way to correct his course.

The hearing examiner then reduced Lt. Butler’s penalty to a one-week suspension. In justifying his decision the hearing examiner quoted from a treatise from the National Academy of Arbitrators  entitled “The Common Law of the Workplace.”

• Unless otherwise agreed, discipline for all but the most serious offenses must be imposed in gradually increasing levels.
• The primary objective of discipline is to correct rather than to punish. Thus, for most offenses, employers should use one or more warnings before suspensions, and suspensions before discharge.

The City appealed the ruling to 118th District Court, Howard County, arguing that the arbitrator exceeded his authority by relying upon the National Academy of Arbitrators treatise in reducing the penalty. The trial court agreed, reinstating the indefinite suspension. From that ruling, Lt. Butler appealed to the Eleventh District Court of Appeals of Texas.

From the decision handed down last week:

• When a fire fighter or police officer elects to have his suspension reviewed by an independent third-party hearing examiner, instead of the [civil service] commission, the hearing examiner’s decision is final and binding on all the parties except on the narrow grounds listed in Section 143.057(j).
• One of the permissible grounds for an appeal is that the hearing examiner acted without or exceeded his jurisdiction.
• A hearing examiner exceeds his jurisdiction “when his acts are not authorized by the Act or are contrary to it, or when they invade the policy-setting realm protected by the nondelegation doctrine.”
• “[A] hearing examiner is not authorized to make rules, but must follow those prescribed by the Legislature.”
• Rule 202.0 of the Big Spring Fire Department is entitled “Counseling and Disciplinary Action.”
• As per its stated purpose, the rule’s procedures guide fire department supervisors in dealing with disciplinary problems they may encounter.
• The rule requires that supervisors administer discipline in a “corrective, progressive, and lawful manner.”
• With respect to the “progressive” component, the rule provides as follows:
  • Progressive in that discipline will normally begin with a verbal counseling and, when circumstances of separate or related incidents warrant, proceed to written reprimands then demotion, suspension, or indefinite suspension. An incident of misconduct may require any of these forms of disciplinary action whether or not a lesser form has preceded the action. This will depend on the severity of the offense.
• By its express terms, the fire department rule does not require that a lesser form of disciplinary action must precede the disciplinary action taken.
• However, the hearing examiner determined that the City’s sanction of indefinite suspension was improper because the City had not previously imposed the lesser sanction of a temporary suspension.
• In making this determination, the hearing examiner referred to and followed a “standard” that was contrary to the applicable fire department rule.
• Thus, the hearing officer made a new rule or policy because he followed a standard that differed from the fire department rule.
• Accordingly, the hearing examiner exceeded his jurisdiction.

Here is a copy of the decision: 2018 Butler v. City of Big Spring_ 2018 Tex. App. LEXIS 6275