TX Examiner: Reinstate FF Accused of Hitting Elderly Man
A state examiner has ruled for the reinstatement of Fort Worth firefighter Shea O’Neill, who was fired after being accused of hitting an elderly man. The examiner says his suspension and termination violated his right to due process.
June 7–FORT WORTH, TX — A state hearing examiner has ruled that a Fort Worth firefighter who was fired after being accused of hitting an elderly man during a TCU football scrimmage should be reinstated, saying the city’s investigation into the 2015 incident ignored key evidence and violated his rights.
The city disagrees and wants a judge to block his return to work.
Shea O’Neill, 44, should be allowed to go back on duty with back pay — minus earnings from any job he’s held since his suspension began in July 2015 — and have benefits and seniority restored, the hearing examiner, AlmaLee Guttshall, ordered May 24.
O’Neill "did not receive reasonable or appropriate due process," Guttshall wrote, saying that "the facts and allegations were not fully investigated." At one point in her 45-page ruling, she accuses the Fort Worth Fire Department of conducting a "kangaroo court" when deciding to give O’Neill an indefinite suspension.
"The total and seemingly intentional failure of (Fort Worth Fire Department) Professional Standards to afford (O’Neill) his due process rights is sufficient on its own to grant the appeal and overturn the indefinite suspension entirely," Guttshall wrote.
But O’Neill has not yet been allowed to return to work. Instead, the city filed a lawsuit in Tarrant County civil court Friday, asking state District Judge Michael Wallach to uphold O’Neill’s indefinite suspension, claiming that Guttshall "exceeded her jurisdiction" in her ruling.
"We disagree with the hearing officer. … We do not believe we infringed on the due process rights of O’Neill," Assistant City Manager Valerie Washington said. "We respect the hearing officer but we want to move forward with our appeal rights as well."
O’Neill called the arbitrator’s ruling "fantastic news" but was disappointed that the city went to court to appeal the decision stemming from a December 2016 civil service commission hearing.
"Now that we get a ruling and some justice, the city is going dig up something bogus and drag us into court one more time," O’Neill said. "The whole thing is shameful."
The attorneys representing O’Neill described the city’s appeal as being without factual or legal merit and the relief requested from the court is not permitted by law.
"In our opinion, the city should simply follow the final and binding arbitration decision," Matt Bachop, one of O’Neill’s attorneys in Austin, said in an email to the Star-Telegram.
Last year, O’Neill went on trial for injury to the elderly, a first-degree felony punishable by a maximum sentence of life in prison. But a jury in June 2016 deadlocked and the judge declared a mistrial.
O’Neill was accused of being involved in a heated and, by some accounts, violent confrontation with 78-year-old James Woods during a TCU football scrimmage in April 2015.
James Woods and his wife, Patsy, were sitting in the disabled-only section near the 45-yard line. They complained that they were being pestered by three children — one of them a girl — who were standing on the handrail blocking their view, according to the hearing examiner’s report.
Patsy Woods said she tried to get the children to move, at one time tapping them with a rolled-up souvenir poster, but eventually gave up, Guttshall’s report said.
O’Neill doesn’t deny that "out of reflex" he used the palm of his hand to defend his children from James Woods’ "violent rage."
O’Neill, who was seated behind the Woods, was with his twin boys, then 7 years old, and their friend, who was 8. In the last 10 minutes of the scrimmage, his boys stood at the railing, blocking the Woods’ view. James Woods reportedly stood up and yelled at the children to get out of the way.
O’Neill told James Woods not to yell at or discipline his children, to which the elderly man reportedly replied:" I will say whatever the f— I want," according to the hearing examiner’s report.
James Woods then says that he "suddenly saw stars and a flash of light" and that his whole face went numb, the report states. Woods eventually was treated for a bloody nose, several damaged teeth and facial bruising.
O’Neill says that Patsy Woods grabbed the jersey of the one of children and pulled him toward her as her husband stood there yelling, the report states. O’Neill said he then stepped in and doesn’t deny that "out of reflex" he used the palm of his hand to defend his children from James Woods’ "violent rage."
TCU police investigated the incident and took statements from multiple witnesses. The fire department relied on the school’s investigation in deciding to put him on indefinite suspension in July 2015.
Guttshall criticized the fire department for relying solely on the TCU investigation even as differing accounts emerged. She particularly found it vexing that none of the witnesses were interviewed by an internal affairs investigator, resulting in the "kangaroo court," the report states.
"No other witnesses, again in particular the Woodses, were subjected to such intense examination or investigation. They simply gave statements; no one questioned them or pursued the inconsistencies in their stories," Guttshall wrote. It was only after O’Neill was suspended that one of the witnesses was contacted.
Those interviews might have helped clear up whether Woods was still standing or sitting when the confrontation occurred. If he was standing, it was reasonable for O’Neill to perceive that Woods was a threat to his children. Witnesses said Woods was standing up, while he has said he was seated.
Furthermore, the injuries reported by Woods show that it was impossible for him to have been sitting at the time of contact, Guttshall said, with one witness saying that he did not believe the slap O’Neill gave Woods carried that much force. "It is highly improbable that the slap cracked and/or broke his teeth," she said.
Instead, the evidence indicates that when Woods was slapped, he lost his balance, fell into his seat and slipped to the ground, hitting his face or chin on the rail, causing his facial and dental injuries. Woods’ nosebleed may have been caused by the aspirin he took every day, as well as Lipitor, which can cause "unusual bleeding," Guttshall said. O’Neill contends Woods probably slipped and fell while yelling at him.
The city has the burden of proving that its findings are "more likely or more probable than not," Guttshall wrote. "In this case, the City cannot meet that burden."
In its lawsuit, the city argues that Guttshall was wrong to include the information about the medications Woods was taking, since it wasn’t raised at the hearing and the city didn’t have a chance to respond. And, if Guttshall thought there was an error in due process, she exceeded her authority by reinstating O’Neill.
Fort Worth Fire Chief Rudolph Jackson said he regrets the hearing examiner’s decision but declined to talk about the facts of the case. As far as doing a more complete investigation, Jackson said his department decided to "trust" that the information it received from the TCU police was valid.
"Whenever there is a case, you evaluate what you could have done differently," Jackson said. "I would say that you always evaluate yourself to make corrections."
O’Neill said he hoped the examiner’s ruling would be the end of a two-year nightmare.
Besides dealing with the allegations in this case — which also led to a criminal trial — he had to answer questions about his 2013 arrest for a fatal stabbing in Arkansas of a 23-year-old man near Hot Springs. Investigators later determined that O’Neill was the target of a robbery attempt and had acted in self-defense and an internal affairs investigation was dropped.
O’Neill said his kids have been bullied and forced out of a private school. He said he’s had to live off savings and a cashed-in retirement account while being out of work.
"It would have been nice to have a meeting and say, ‘Wow, we messed up …’ " O’Neill said. "But instead they come up with an appeal to hide their actions."
Max B. Baker: 817-390-7714, @MaxbakerBB
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