Houston Firefighter Reinstated Following Procedural Error in Drug Testing

A Houston firefighter who was fired following a positive drug test in 2019, has been ordered reinstated by the Texas Court of Appeals because the city failed to comply with its own procedural requirements to inform him of his right to request a “referee test.”

Firefighter Engineer Pete Cortez was selected for random urinalysis testing in January, 2019. The result was found to be “negative and diluted”, prompting Cortez to be sent for follow-up hair testing. The hair samples tested positive for cocaine, and Cortez was terminated.

Cortez challenged the termination before the Houston Firefighters’ and Police Officers’ Civil Service Commission, but the Commission upheld the department’s decision. Cortez then appealed the commission decision to Harris County District Court.

The city argued that the commission’s decision should be upheld because it was “untainted by any illegality and was supported by substantial evidence.” Cortez argued the commission’s decision was “tainted” by the city’s failure to inform him of his right to have the hair test submitted to an independent lab through a “referee test” process. The “referee test” requirement was imposed by an Executive order issued the Mayor.

The district court ruled in favor of Cortez and ordered him reinstated. The city appealed. In upholding the District Court, the Court of Appeals explained as follows:

  • [W]hen a public employer’s challenged action is arbitrary or capricious, or a clear abuse of authority, then the civil service commission’s ultimate ruling upholding the challenged action is not free from the taint of illegality.
  • Arbitrary, capricious, or illegal acts hence destroy the presumption of validity normally accompanying commission rulings.
  • We turn to whether the Medical Review Officer, after learning the hair sample tested positive for cocaine, was obligated to notify Cortez of his option to obtain a referee test, as Cortez contends.
  • Before he was terminated, Cortez was not notified of an option to request a referee test.
  • Under the Executive Order’s plain text, Dr. Castillo was required to notify Cortez of his right to request a referee test after he verified Cortez’s positive hair test.
  • It is undisputed that Cortez was not told of his right to a referee test, and no referee test was performed.
  • An arbitrary act is one that is taken capriciously or at pleasure, and not according to reason or principle.
  • Cortez proved conclusively the City’s violation of certain civil service rules adopted by the Commission pursuant to statute.
  • The Executive Order applies to all city employees (except elected officials), including the Medical Review Officer.
  • The City’s effective choice to observe some applicable civil service rules but not others falls squarely within the common understanding of the term “arbitrary.”
  • The City’s failure to fully perform all conditions precedent to removal is either clear abuse by the City or constitutes an arbitrary or capricious act.
  • When a city violates a civil service rule that exists to provide procedural safeguards for the charged employee’s benefit, then the ultimate commission decision upholding the city’s suspension is tainted by the city’s arbitrary or illegal action.
  • A city’s failure to consistently enforce or follow civil service rules undermines the presumption of validity normally accompanying commission rulings.
  • Thus, we conclude Cortez established conclusively that the Commission’s result is not free from the taint of illegality
  • The civil service rule the City violated goes to the heart of the determinative question: whether in fact the evidence establishes a drug violation by Cortez.
  • If the Medical Review Officer had informed Cortez of his right to seek such a test, if Cortez had exercised that right, and if the result was negative, then that result may have provided Cortez an additional basis to refute the charge for dismissal.
  • For these reasons, we hold that the City’s failure to comply with its obligation under the Executive Order to notify Cortez of his option to pay for a referee test was arbitrary and thus the ultimate Commission decision upholding the termination is not free from the “taint of illegality.”

Here is a copy of the decision:

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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