Texas Firefighter Twice Fired Goes On The Offensive

A Texas firefighter who was fired twice and reinstated both times is suing his fire chief and the department for discrimination and violation of his due process rights.

Robert Vargus was fired by the McAllen Fire Department in 2011 following an apparatus backing mishap in 2010 that was not properly reported. Vargus, who was neither driving nor in-charge, was reinstated when a hearing officer determined he was ordered by his lieutenant not to discuss the incident, and that his only mistake was not admitting what happened when first questioned. His termination was reduced to a 10-day suspension without pay. The city appealed the decision but it was upheld and Vargas returned to duty.

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.

The two terminations led to financial catastrophe for Vargas as he lost his house to foreclosure. The financial problems combined with harassment-related workplace stress contributed to a break-up of his marriage. The complaint alleges a number of specific hazing incidents and patterns of harassment that Vargas was subjected to that started during his training academy days in 2005 and continues to this day.

The 19 page complaint was filed in US District Court for the Southern District of Texas naming the City of McAllen and Fire Chief Rafael Balderas. It alleges violations of the Texas Labor Code due to discrimination and harassment on account of age and disability, and a federal due process violation under 42 U.S.C. §1983.

• The City of McAllen, by and through Defendant’s agent, Fire Chief Balderas acting in his official capacity, intentionally engaged in wrongful acts under color of law. To wit, on or about April 3, 2013 Fire Chief Balderas improperly applied an enhancement from a prior disciplinary action with intent to cause the termination of the Plaintiff.
• The City of McAllen, by and through its agent, Fire Chief Balderas acting in his official capacity, intentionally engaged in wrongful acts with malice or with reckless indifference to the constitutionally-protected rights of Plaintiff. To wit, on or about April 3, 2013, Fire Chief Balderas denied the Plaintiff substantive and procedural due process in violation of the Fifth and/or Fourteenth Amendments to the Constitution by arbitrary and capricious actions in improperly relying on a prior disciplinary action to support the termination, failing to give the Plaintiff proper notice of potential disciplinary actions and placing allegations, treating the Plaintiff differently than similarly situated Firefighters and placing documentation in Plaintiffs “G” file that have been utilized to impact plaintiff’s career opportunities without disclosing to the Plaintiff.
• Fire Chief Balderas and other individuals in the chain of command are liable because they sanctioned the custom, practice and/or policy or procedures of, inter alia, 1) failing to adequately supervise and/or observe their employees and/or officers, 2) failing to provide adequate training in regard to the disciplinary process and requirements for substantive and procedural due process, 3) failing to impose proper and sufficient policies and/or procedures as to the use of the disciplinary process and requirements for substantive and procedural due process, and 4) ignoring the serious need for training and supervision of superior officers with regards to the disciplinary process and requirements for substantive and procedural due process.

Here is a copy of the complaint: 1305VARR_20141219_Complaint – Federal v3

Here are prior stories about FF Vargas.

July 13, 2011

April 7, 2013

October 10, 2013

A special tip-of-the-hat to Fire Lawyer Marc Meyer, formerly with the Houston Fire Department, who is representing FF Vargas.