EDINBURG, Texas -- A Mission firefighter who was fired for bringing a woman into the fire station after hours should get his job back with back pay, an appellate court ruled Thursday.
Alejandro Gonzalez was indefinitely suspended, which is akin to being fired under Civil Service rules, in April 2010. His suspension letter states he broke the rules by allowing a woman into restricted areas of the department after hours and engaging in "inappropriate behavior" with her on Feb. 18, 2010.
Gonzalez appealed the case to a hearing examiner, who is a member of the American Arbitration Association. The hearing examiner determined the testimony of a female employee, who said she saw a woman wearing only a T-Shirt and panties bouncing up and down on Gonzalez's lap, was not credible. Gonzalez also denied those allegations.
The arbitrator ruled the indefinite suspension was too harsh and ordered a 10-day unpaid suspension, allowing Gonzalez to receive back pay for the additional days he missed.
Gonzalez earned $46,930 annually, according to city records.
The city appealed the arbitrator's decision to the court system on the grounds that the independent arbitrator had exceeded his jurisdiction because he ruled on a sexual harassment claim that wasn't a part of the case.
However, the three judge 13th Court of Appeals panel ruled that the hearing examiner did not consider the sexual harassment issue in his decision. They also struck down the city's argument that the arbitrator also overstepped his bounds when he chose to impose a 10-day suspension.
The judges also overruled the city's argument that the hearing examiner broke the law when he accepted Gonzalez's denial of the alleged sexual conduct and dismissed the female employee's account, basing his decision on the facts that she did not immediately leave the room or report the incident despite claiming to be "humiliated and embarrassed." The female employee did not tell management about what happened for another month.
"We're gratified the court affirmed the district court's decision and grateful Mr. Gonzalez will be able to go back to work soon," said Craig Deats, one of Gonzalez's attorneys.
However, city officials still have the option of appealing the decision to the Supreme Court of Texas, but most of them still haven't gotten a chance to go through the decision.
"The city manager and attorneys will present the court's decision to the city council...and we'll go from there," said City Manager Julio Cerda, noting that ultimately it's the elected officials' choice on whether to proceed to a higher court.
Mayor Norberto "Beto" Salinas told The Monitor in February 2011 that the city would take the case to the Texas Supreme Court if necessary. Salinas was not available for comment Friday afternoon.
Copyright 2012 - The Monitor, McAllen, Texas
McClatchy-Tribune News Service
