HOUSTON – In a ruling made on April 17, the 14th Court of Appeals ruled in favor of a firefighter who brought a lawsuit after being suspended from the fire department.
According to the appeals court, Senior Capt. Steven Dunbar was suspended from the Houston Fire Department for 10 days for an alleged failure to submit a completed medical questionnaire.
Dunbar appealed the suspension to the Firefighters’ & Police Officers’ Civil Service Commission for the City of Houston, the opinion stated.
“The Commission upheld the suspension and Dunbar appealed the ruling by filing a petition against the city of Houston and the Commission in a Harris County district court,” the appeals court said.
Dunbar then appealed the trial court’s orders granting the city and the Commission’s motion for summary judgment and denying Dunbar’s summary judgment motion.
According to the appeals court, Dunbar said the trial court’s rulings were in error because a suspension is void if imposed “later than the 180th day after the date the department discovers or becomes aware of the violation that resulted in the suspension.”
Ruling in Dunbar’s favor, the appeals court said “The evidence conclusively establishes that the Department suspended Dunbar more than 180 days after the acting head of the department was aware of the original violation.”
The appeals court added that “the time for imposing a suspension did not begin again when the department reissued the same order or when a department employee submitted a verified complaint that Dunbar had violated the reissued order.”
Dunbar suffered an in injury in 2012 and was placed on temporary-duty status, the opinion stated.
According to the department’s leaves and absences rules cited by the appeals court, if an injured firefighter is unable to perform full duties due to an injury and is placed on temporary-duty status, the firefighter is required to submit a physician-completed medical questionnaire every 90 days.
Dunbar last submitted a completed medical questionnaire on Jan. 22, 2014, according to the appeals court.
The court also cited the Texas law that says “if the suspension is imposed later than the 180th day after the date the department discovers or becomes aware of the violation, then “[t]he suspension is void and the firefighter or police officer is entitled to the person’s full pay.”
“Dunbar was suspended on April 8, 2015, so the suspension was void for untimeliness only if the department discovered or became aware of the rule violation before Oct. 10, 2014,” the appeals court said.
The parties disagreed about how “the date the department discovers or becomes aware of the violation” is determined, the opinion stated.
Dunbar said the suspension was untimely because the department knew of his failure to return a completed medical questionnaire as early as April 23, 2014.
According to the appeals court, that’s when the department’s human resources specialist emailed Dunbar to remind him that he had been required to return the questionnaire the day before, or as late as Aug. 27, 2014, when an assessment meeting was held to address Dunbar’s failure to comply with the medical questionnaire requirement.
According to the city, the date when the department discovers or becomes aware of a violation is when Staff Services receives a verified complaint.
The city said the department timely suspended Dunbar 162 days after the head of Staff Services received a notarized memorandum from the department’s risk-management office.
The appeals court agreed with Dunbar.
“We conclude that, under the correct reading of the relevant provisions of Chapter 143, Dunbar is correct,” the opinion stated. “The department was aware of the violation not later than August 2014, and thus, his suspension more than 180 days later is void.”