The city of Albuquerque is going to court over a pair of women’s underwear.
It is challenging the reinstatement of a male firefighter it terminated for allegedly stealing underwear from a female colleague and then lying about it.
Mario Montoya successfully appealed his 2018 firing to the city’s personnel board after a hearing officer determined there was not enough evidence to support the claims that led to his discharge.
But the city is fighting the board’s decision to reinstate Montoya, filing a notice of appeal earlier this month in state District Court in Albuquerque.
The city will have to abide by the board’s decision unless the courts overturn it, according to a spokeswoman, who said the city thinks its firing of Montoya was appropriate.
“The City chose to appeal the Personnel Board decision because the City and Albuquerque Fire and Rescue believe the City acted in accordance with its policies and procedures when it terminated Mr. Montoya,” city spokeswoman Jessie Damazyn said in a written statement.
Central to the case is how Montoya, who worked for 11 years with Albuquerque Fire Rescue, had come into possession of the female firefighter’s underwear.
He claimed he found them on the floor of the fire station when nobody else was around and picked them up to save her potential embarrassment, according to personnel board documentation.
She claimed he stole them from her overnight bag.
But after hearings conducted last summer, hearing officer Rita G. Siegel said the charges of theft and dishonesty “are based on management’s opinions, which rest on limited evidence.” She recommended Montoya’s reinstatement with back pay.
The city’s personnel board – an independent arm of appointed members – voted 2-1 in April to accept her determination.
Montoya’s attorney said he made an offer to resolve the case before the appeal but the city rejected it. He declined to give the proposal’s specifics but said Montoya, terminated in April 2018, wants to return to work.
“Could he have done things differently? Of course, he could have,” said Montoya’s attorney, John D’Amato. “(But) under the standards of review, the standards the hearing officer went by, there’s no proof, there’s no evidence (he stole the underwear).”
An AFR spokesman said the department is appealing the personnel board’s decision via “the appropriate avenues” allowed by city ordinance, but could not otherwise comment on the pending litigation.
According to Siegel’s report, Montoya’s wife discovered the underpants in the console of his truck.
She said Montoya told her they belonged to the female firefighter but gave her two different explanations, according to the report: that he found them wedged under a door at the station and that they had been mixed in with his laundry at the station.
He told her he had intended to give them back, but he had to leave the station before she returned.
Montoya’s wife contacted the female firefighter, who told her supervisor that Montoya had stolen her underwear.
The report said Montoya’s wife messaged the female firefighter with a picture of the undergarment and asked, “Anything I should know about?”
The women exchanged several messages discussing how Montoya may have obtained them, with the owner concluding he had lifted them from her belongings, according to the pair’s correspondence included in the report.
“WHAT A (EXPLETIVE) CREEP!!!!!!! He (expletive) took them from my bag!!!!!!!! Well I let my officer know!!” the firefighter wrote.
“Oh god. Now he’s going to lose his freakin' job. I’m sorry you ended up in this crap,” Montoya’s wife responded.
“I’m sorry. I’m sorry but not only is that stealing but that’s just (expletive) weird!!!” the firefighter responded.
Siegel’s report said the female firefighter “believed the item could not have fallen out of the bag because she routinely packs her underwear in the middle of the clothing to ensure it doesn’t fall out.”
But Siegel wrote that the city appeared to conclude Montoya stole the underwear because officials could not identify anyone else who might be culpable, yet nobody could offer an explanation about why he would have taken them. She also wrote that Montoya’s varying explanations to his wife are a private matter and should not factor into city decisions about his honesty.
“The only infractions related to Montoya’s employment which are supported by the record evidence are negligence due to his failure to contact (the female firefighter) in a timely manner and poor judgment in taking (her) underpants from the station,” the report said. “Without more, there is no justification for a finding of just cause for discipline warranting termination.”
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