McAllen, Texas firefighter Robert Vargas has once again been given his job back by a hearing examiner. Vargas had been given an “indefinite suspension” (the Texas euphemism for termination) last spring for working as a substitute school nurse while on sick leave.
You may recall Vargas was one of three firefighters terminated (given indefinite suspensions) for allegedly trying to conceal an apparatus mishap when their engine backed into a mail box on Halloween, 2010. Vargas, who was neither in command nor driving the apparatus, was reinstated by a hearing examiner in 2011. The indefinite suspension was reduced to a 10 day suspension.
Vargas' most recent case arose in March of 2013 when the department sought to terminate him for having accepted substitute school nurse assignments while he was on sick leave due to an off the job accident in September-October 2012. The department considered the offense to be “aggravated” by Vargas’ previous involvement in the apparatus mishap incident and therefore warranting of termination. He was indefinitely suspended on April 3, 2013.
The discipline was appealed to a hearing examiner who had a different take. First the examiner found that the city had agreed to be limited in its ability to consider Vargas’ 2010 discipline for a one-year period starting January 12, 2012, the date he was officially reinstated.
The hearing examiner rejected the city’s argument that because the sick leave abuse occurred within the one-year limitation it was allowed to consider it. Rather the examiner ruled that the city had until January 12, 2013 to consider the 2010 misconduct, and April 3, 2013, was the operative date they actually considered it because that was the day that Vargas was indefinitely suspended.
Any window of opportunity available to the City to use that incident to demonstrate that Appellant had previously been disciplined for a like or similar offense, therefore, closed on January 12, 2013.
On the specific charges, the examiner concluded that Vargas had made no effort to hide his having worked while off sick and that he only worked a single day. He also pointed out:
As written, the [city’s disciplinary] notice seems to allege that Appellant engaged in this misconduct on a regular and continuing basis for a period of nearly six months, when in fact it was limited to a single day. … [The disciplinary notice] misstates the facts as they were known to the Department supervisors. …
It is true, as Appellant admitted, that he worked as a substitute school nurse on October 5, 2012, while he was on an approved leave of absence. The medical reasons supporting this leave of absence were documented by Appellant’s doctor…
The examiner took issue with the fire chief having served as investigator and as the hearing officer who made the decision to indefinitely suspend Vargas.
For a single responsible official to assume the roles of investigator, fact-finder and decision-maker suggests that the official is merely paying lip service to the due process requirements established by the Supreme Court in Cleveland Board of Education v. Loudermill….
[The examiner] concluded, therefore, that the City effectively deprived Appellant of his rights to due process during the investigation and consideration of the charges against him.
But it was not all one sided.
[Vargas] admits that he worked as a substitute school nurse on October 5, 2012, while he was on the LOA, but he denies that he violated any rules or regulations by doing so. Despite the procedural flaws related to the Notice of Suspension, discussed in detail above, the fact remains that on October 5, 2012, Appellant worked for another employer while he was on a medical leave of absence from the City.
Appellant consistently maintained that he did not intend to commit any type of misconduct, even to the point of testifying at the hearing that neither he nor his Union representatives could find a contractual or statutory provision that he had violated. In view of the clear language of the Contract, his explanations strain credulity. Appellant knew his absence from the Department that day was being charged to sick leave, yet he went to work as a substitute school nurse without notifying the Department or taking any steps to ensure that his absence would not be shown as sick leave for pay purposes. Whatever his intentions may have been, therefore, Appellant’s actions constituted fraudulent use of his sick leave.
In the end the hearing examiner reinstated Vargas subject to a five (5) day unpaid suspension.
Here is a copy of the ruling. Hearing_Examiner's_Award_–_Vargas_v_City_of_McAllen_70_390_00265_13(1)
Lots of lessons for the professional standards investigators out there!!!!