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Targeted firefighter says he wasn't offended by photographs

By Sonny Long
April 8, 2011 at 7:04 p.m.
Updated April 7, 2011 at 11:08 p.m.


VICTORIA PERSONNEL POLICIES MANUALExamples of sexual harassment from the manual include:

According to the city of Victoria personnel policies manual, "the following conduct is prohibited and individuals engaged in it will be subject to discipline, up to and including termination":

"Engaging in any form of sexual or other harassment"

"Playing pranks, practical jokes, or engaging in horseplay"

"Sexual or discriminatory displays, photographs or publications in any location in the workplace, e.g., any sexually suggestive pictures, cartoons or photographs."

A Victoria firefighter told city officials he was not offended by the provocative photographs placed in his locker by co-workers, according to reports released Friday.

The photographs of nude men, some in suggestive poses, were put in his locker at Victoria Fire Station No. 2.

In a document that is part of the investigation report on the incident, Victoria Human Resources Director Cheryl Marthiljohni writes, "(He) 'was not offended by what happened.' He also stated that he took it as a 'prank' or 'joke' because he and (the two firefighters) would often joke around with each other.

"(He) said he knew who did the joke because (they) were the only ones at the station house and joking around is something that they do. When asked to describe the type of joking that they do, he said they joke around 'like guys do.'"

He crumpled the photos up and threw them in the trash, according to his statement.

Despite his statements, the co-workers were fired by the city. Both had more than five years experience with the Victoria Fire Department.

The Advocate obtained the city reports after filing a Texas Public Information Act request. The firefighters involved in the case have declined to comment.

TWO PRINTERS

The firefighter in Station 2 who printed the photographs from the Internet also accidentally printed them on the Station No. 1 printer.

At Station 1, some of the photographs were placed on a bulletin board, but a captain threw them away and, according to her statement, told firefighters there, "... whoever is doing this needs to stop. This is inappropriate and should not be printed at work."

In her statement, she also said, "While I knew the pictures were wrong and inappropriate, I did not report this to Interim Chief (Roger) Hempel or acting Battalion Chief (Clifton) Bayer as I was not offended by the pictures and I chose to handle it inhouse."

However, the photos printed at Station 1 led to the reporting of the incident.

A lieutenant from Station 1 asked a lieutenant from Station 2 about photos "of what appeared to be homosexual activity" being printed at Station 1.

The lieutenant at Station 2 had seen the firefighter throw away the photographs earlier in the day, but said he did not see them closely and dismissed the incident at the time.

"After thinking about the events that took place throughout the day, I began to place the pieces of the puzzle together," the lieutenant wrote in his statement. "I attempted to pull the photos out of the trash can, however, had to obtain a trash bag since someone had spit tobacco onto the papers."

He reported the incident to Hempel the next day.

INVESTIGATION & TERMINATION

After an internal investigation, Hempel notified both firefighters on March 29 of his "preliminary decision to terminate."

Investigation into both men's computer use revealed which of the two men had accessed the "websites suspected to have provided the inappropriate pictures."

During the investigation, both firefighters admitted their roles in the incident.

Hempel told the firefighter who did not print the photos but helped put them in his co-workers' locker that, "you were an equal, contributing partner in the inappropriate behavior that occurred."

The internal investigation also revealed that a female EMS student rider was in the Fire Station 2 kitchen area when the photographs were taped together and she "had opportunity to view the inappropriate pictures," stated Hempel's termination letter.

In her statement during the investigation, the student said she "did not recall any of the firefighters asking if she was offended when they were putting together the pictures..."

Asked whether she was offended, she said, "Yes, I'm a little offended by what happened."

GRIEVANCE PROCEDURE

Hempel also advised both firefighters that they had five days to file a letter of grievance.

"You are now afforded an opportunity to provide me any information, documentation or other relevant data that you wish to present to me which may bear upon my final decision," he wrote. "The burden is entirely upon you to come forward and present evidence to me. The purpose of this opportunity that I am affording you is to hear from you and not to conduct a formal evidentiary hearing."

The firefighter who printed the photos wrote in his defense that the photographs were printed "in order to have a private communication with a co-worker."

"None of the photos were taken from a website blocked by the city's filtering software and could readily be viewed by anyone in the department - male or female - whatever their sexual preference, who was curious enough or interested in looking at the website. There also was no exposure of genitalia in any picture and none of the images were remotely pornographic," he wrote.

The firefighter also stated that the target of the practical joke was, "amused and did not take offense to any of the images."

"My behavior and work ethic are near flawless," his letter continued.

He also contended that such behavior is typical at the fire department.

"It is customary and traditional in the fire service to play practical jokes and tolerate mild horseplay," he wrote. "Multiple examples of this type of behavior have been documented in many employee files and such behaviors are cemented in firefighting tradition," he stated.

The firefighter who did not print the photos but helped place them in the locker also submitted a grievance letter.

He took full responsibility for his "improper actions" and offered, if retained in the department, to help with "training to reduce the amount of horseplay and practical joking that, for the last five years, has been a routinely accepted part of the job."

He added that his role in the incident was "limited" and the "practical joke was intended to be limited to a single co-worker."

INCONSISTENT PUNISHMENT?

In both men's grievance letters, dated April 4, they noted several incidents of misconduct in the fire department and elsewhere in the city that, according to them, were more egregious than their behavior, but resulted in less severe punishments.

"These examples will illustrate the inconsistency of my punishment compared to worse offenses in recent times," wrote the firefighter who printed the photographs. "The referenced examples reflect that this policy is subjective and the city appears to be utilizing selective enforcement procedures."

The firefighter who did not print the photos also stated, "There are numerous examples of horseplay/practical jokes that violate VFD and city of Victoria policy that have occurred during my employment tenure."

Both men asked to be reinstated.

A day later Hempel responded: "I find no compelling reasons or evidence that would cause me to reverse any decision to terminate your employment with the city of Victoria."

A FINAL APPEAL

Both firefighters have one more avenue of appeal.

According to the city's personnel manual, Step Three in the grievance procedure is an appeal to assistant city manager Bruce Ure, who will then make a recommendation to City Manager Charmelle Garrett, whose decision about their jobs will be final.

Asked whether the firefighters had made that appeal, Communications Director O.C. Garza said, "To protect all parties involved in internal investigations, the city will not comment on individual cases."

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