Appeals Court: Liberty cop fired over bad behavior, not race

Steve Korris Aug. 12, 2010, 7:45am

Former Liberty police detective Hugo Flores lost his job due to his conduct and not his national origin, Ninth District appeals judges ruled on Aug. 5.

In a case that reads like a script for "NYPD Blue," Chief Justice Steve McKeithen and Justices Charles Kreger and Hollis Horton affirmed Liberty County District Judge Chap Cain in rejecting Flores' discrimination claim.

Cain granted summary judgment last year to the city of Liberty, the police department, City Manager Allen Barnes, Police Chief William Griffin and three other officers.

Flores claimed others in the department also behaved inappropriately but did not lose their jobs.

Flores alleged that "he was discriminated against on account of his national origin, Hispanic, and was retaliated against because of his opposition to unlawful employment practices in violation of the Texas Labor Code[.]"

He also alleged that he "pursued his claim under the Whistle Blower Act and under the Sabine Pilot Common Law Rights."

Cain and the Ninth District found scant evidence for that.

Flores joined the police department in 2000, and advanced to detective in 2003. He received his first personnel policy manual on Jan. 31, 2006.

Grounds for disciplinary action, including termination, included fighting, using profane, abusive or threatening language; and misconduct, defined as "[a]ny criminal offense or other conduct, including immoral conduct, which could have an adverse effect on the City or on the confidence of the public in the integrity of the City government or on the relationship of the employee and other employees."

Flores must have failed to read the manual, because court papers state that in February the officer began a six-month long extramarital affair with an administrative employee of the police chief.

Flores and Chip Fairchild had a confrontation over the employee, and Fairchild complained to Chief Griffin. Court papers do not indicate Fairchild's employment position.

Flores told his boss the employee was his girlfriend, and that Fairchild had been flirting with her. No disciplinary action was taken.

After the affair ended, Flores was later suspended for driving to the employee's apartment -- in a police vehicle -- and pounding on her door in a hostile manner, "causing the other residents within the apartment to flee."

In July 2006, a female dispatcher and Officer Sheree Peak each made official written sexual harassment complaints against Flores. Flores claimed the female officer had harassed him.

He said he did not make any sexual advances toward Peak, "like other officers did," but that he "plays" with her in a "different ... more of a derogatory way."

Flores received a substandard performance evaluation from Chief Griffin on Aug. 16, 2006, and was put on a 90-day review.

According court papers, the evaluation stated that Flores tended to be careless, could not be relied on for a consistent quality of work, was sometimes difficult to work with, required extra supervision to finish tasks and rarely anticipated problems.

Complaints against Flores continued throughout the fall of 2006. In September, a credit union complained that Flores failed to adequately pursue a forgery case which led the district attorney to drop prosecution for lack of evidence. In October, a store clerk complained that he was confronted by Flores after Flores' wife said the clerk was "cute."

The last straw for the department came on Nov. 28, when Flores was reprimanded for taking off before his approved time.

On Nov. 30, 2006, Flores was re-evaluated and determined to have failed to meet minimum requirements. He was dismissed from the Liberty police department on Dec. 11, 2006.

Flores filed a lawsuit, claiming retaliation and sought protection under the state Whistleblower Act. He also sought human rights protection.

The officer contended that he established a prima facie case of discrimination by producing evidence of similarly situated employees engaging in much more inappropriate conduct while only he suffered ill consequences.

Flores alleged that three officers engaged in inappropriate conduct: Peak, R.P. Pearson and Kenneth Taylor.

He claimed Peak told him she had sex with Taylor on the hood of a squad car while Taylor was supposed to be training her.

In July 2006, Flores reported to the chief that Peak had falsified her time sheet. Peak eventually resigned from the force.

Pearson allegedly beat a cat to death while working in animal control, but after investigating the department found no evidence of wrongdoing.

In response to Flores' suit, the city of Liberty moved for summary judgment and after a hearing, Judge Cain granted it.

Flores appealed, but the Ninth District agreed with Cain.

"Pearson and Taylor were each alleged to have engaged in a single act of misconduct, while Flores was terminated after a series of incidents and progressive discipline," McKeithen wrote. "Peak and Flores were both accused of multiple infractions, and they both received similar adverse employment actions."

"Flores did not have a good faith belief that he was reporting a violation of law, and the protections of the Whistleblower Act did not come into play," he wrote.

Larry Simmons represented the city of Liberty.

Randy Canche, Scott Breitenwischer, Julie Cain and Lloyd Kelley represented Flores.

Liberty County Trial Cause No. CV0800719
Ninth District Court of Appeals-Beaumont, Cause No. 09-09-00532-CV

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