Dunbar v. City of Hous.

557 S.W.3d 745
CourtCourt of Appeals of Texas
DecidedApril 17, 2018
DocketNO. 14-17-00156-CV
StatusPublished
Cited by2 cases

This text of 557 S.W.3d 745 (Dunbar v. City of Hous.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dunbar v. City of Hous., 557 S.W.3d 745 (Tex. Ct. App. 2018).

Opinion

Tracy Christopher, Justice *747After Senior Captain Steven Dunbar was suspended from the Houston Fire Department ("the Department") for ten days for failure to obey an order to submit a completed medical questionnaire, Dunbar appealed the suspension to the Firefighters' & Police Officers' Civil Service Commission for the City of Houston ("the Commission"). 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. He now appeals the trial court's orders granting the City and the Commission's motion for summary judgment and denying Dunbar's summary-judgment motion.

In the dispositive issue before us, Dunbar argues that 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." TEX. LOC. GOV'T CODE ANN. § 143.117(d)(2) (West 2008). 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, and as a matter of law, 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. See id. § 143.117(b).

We accordingly reverse and render judgment in Dunbar's favor.

I. BACKGROUND

Steven Dunbar, a senior captain with the Houston Fire Department ("the Department"), sustained a work-related injury in 2003 and eventually was released to full duty. While off duty in 2012, Dunbar sustained another injury that was found to be related to his 2003 injury.

As a result of the second injury, Dunbar was placed on temporary-duty status. The Department's "Leaves and Absences" Rules specify that 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 ninety days. Dunbar last submitted a completed medical questionnaire on January 22, 2014.

A. Campbell's April 2014 Order

On April 4, 2014, his superior officer Assistant Fire Chief Lisa Campbell ordered Dunbar to submit a completed medical questionnaire to the Department's risk-management office by April 22, 2014. Dunbar did not do so. Oussaphea Chea, the Department's human-resources specialist responsible for "ensuring that [the Department] has all the necessary paperwork and documentation for an injured employee," emailed Dunbar the day after the deadline passed to remind him that the medical questionnaire had not been returned. Dunbar responded that he had sent his medical documentation to a physician, but the doctor refused to take his case. Dunbar copied Lydia Henn in the Department's risk-management office on his response.

The Department took no further action until August 13, 2014, when Acting Fire Chief Richard Galvan advised Dunbar in writing that the Department would conduct an "Assessment Meeting" on August 27, 2014, "to discuss the medical questionnaire that remains outstanding."

*748B. Campbell's August 2014 Order

After the assessment meeting, Campbell again ordered Dunbar in writing to submit a completed medical questionnaire to the Department's risk-management office. Campbell's August 27, 2014, order is identical to her April 4, 2014, order except that the original deadline of April 22, 2014 to return the completed questionnaire has been changed to September 27, 2014. Once again, Dunbar failed to comply and informed the Department that he was not able to locate a physician that would treat him.

C. Henn's Complaint

On October 14, 2014, Henn sent Campbell a memorandum reporting Dunbar's failure to comply with Campbell's August 27, 2014 order to submit a completed medical questionnaire. Two weeks later, Henn signed and notarized the memorandum and submitted it to "Staff Services" for the Department's Internal Affairs Unit to investigate.

D. Administrative Proceedings

The Department did not suspend Dunbar for noncompliance with a superior's order until April 8, 2015, when Fire Chief Terry Garrison suspended Dunbar for ten days without pay. Dunbar appealed the decision to the Commission, which found that the charges against him were true and constituted a sufficient basis or just cause for the suspension.

E. The Civil Suit

Dunbar filed a civil suit against the City and the Commission to set aside the suspension.1 Because the interests of the City and the Commission are aligned, we will include the Commission in our references to "the City."

Dunbar pleaded that his suspension was wrongful because (1) he was suspended more than 180 days after the City knew or should have known of the infraction; (2) to the best of his ability, he obeyed the order to submit a completed medical questionnaire but no physician would treat him; (3) the suspension caused him monetary loss as well as loss of liberty in that "his freedom of employment was hindered"; and (4) "[t]he discipline and medical separation ... constitute[d] double jeopardy." Dunbar sought reinstatement to his former position with no time or pay lost due to the suspension. He also asked to have his record cleared of the violation. The City filed a plea to the jurisdiction in which it asserted that Dunbar had not argued before the Commission that the suspension was untimely or constituted double jeopardy, and thus, he failed to exhaust administrative remedies as to those claims. According to Dunbar, there was an evidentiary hearing on the plea to the jurisdiction, but no record of the hearing is before us. The record does show, however, that the trial court denied the jurisdictional plea regarding the timeliness of the suspension and granted it as to the "double jeopardy" claim.

Dunbar moved for traditional summary judgment on the ground that he was suspended outside the statutorily-mandated 180-day deadline for the Department to impose a suspension. After the trial court denied the motion, the City filed its own traditional motion for summary judgment in which it argued that the Commission's order sustaining Dunbar's suspension was reasonably supported by the evidence.

In his summary-judgment response, Dunbar again argued that (1) the discipline was issued "later than the 180th day after the date the department discovers or becomes *749aware of the civil service rule violation" in contravention of Texas Local Government Code section 143.117(b) ; and (2) to the best of his ability, he obeyed Campbell's admittedly just order to timely submit a completed medical questionnaire, but he was unable to locate a treating physician. Dunbar also conceded in his response that the "[d]ouble jeopardy doctrine has no applicability to this cause."

The trial court granted the City's summary-judgment motion, and Dunbar now appeals both the granting of that motion and the denial of his own.

II. STANDARD OF REVIEW

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Bluebook (online)
557 S.W.3d 745, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dunbar-v-city-of-hous-texapp-2018.