Bexar County Eliminated Position of Plaintiff During Appeal

Originally published by Thomas J. Crane.

What happens when an employer affords a right of redress to its employees, but not really? The large counties in Texas have the statutory right to create civil service commissions. The commissions provide a measure of job protection to county employees. In providing these protections,  politics is removed from job issues, in theory. See generally Tex.Loc.Govt. C. Sec. 158.001, et seq. In the case of Guerrero v. Bexar County Civil Service Commission, No. 04-15-00341 (Tex. App. San Antonio), Carmella Guerrero appealed her demotion. She had been the IT Services Manager for Bexar County in 2010, when she was demoted. Her salary went from $80,000 per year to $58,000. She was a 20 year employee at the time. All her performance evaluations are positive. The reasons for the demotion are not explained, but she did receive a new boss shortly before the demotion.

She appealed her demotion to the Civil Service Commission. The Commission consists of three persons appointed by the Bexar County Commissioner’s Court. The Civil Service Commission found in favor of Ms. Guerrero in 2012. They found the demotion to be wrongful. They ordered back pay and reinstatement to her demoted position, not her former position as Services Manager. In 2011, Bexar County eliminated that Services Manager position. They eliminated 15 other positions at the same time. But, the only position which was actually arguably held by anyone was Ms. Guerrero’s position. The other 15 positions were vacant. The Civil Service Commission refused to reinstate her to her former position as Services Manager. The Civil Service Commission shrugged and said they did not have the authority to order Bexar County to create a position.

The Civil Service Commission is appointed by the Commissioner’s Court. One can presume the members would not wish to rock the boat, too much. But, clearly, the employer’s actions looked questionable. In deposition, the former budget Director for the County admitted that his understanding was that Ms. Guerrero’s position was eliminated because she had become a “problem” for the County due to her appeal. In our business, we would consider that “smoking gun” type evidence. Ms. Guerrero appealed to civil district court and won. The Civil Service Commission then appealed the trial court’s decision. Her matter is now on appeal to the Fourth Court of Appeals in San Antonio.

The Civil Service Commission appealed, saying it lacks the authority to order the County to create a position. But, the court has express authority in the statute to order “appropriate relief.” Tex.Loc.Govt.C. Sec. 158.012(c). Surely, appropriate relief would include lost pay into the future. The district court also found that the Civil Service Commission, after finding she had been wrongfully demoted, should have reinstated the Plaintiff to her prior position, not to the demoted position. Indeed. If the employer can “eliminate” a position during an appeal because of that appeal, then there really is no civil service protection.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

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