Fairfax: The Basketball Incident

Why the Retaliation Finding is So Significant

Shortly after filing a complaint alleging a hostile work environment, including sexual harassment, Magaly Hernandez received a written reprimand for workplace violence and unbecoming conduct. 

The U.S. Fourth District Court of Appeals referred to the activity giving rise to the reprimand as the “basketball incident” saying, “Hernandez, “was involved in a verbal confrontation with a male firefighter during a basketball game at the station (the basketball incident). The disagreement arose after the male firefighter aggressively and repeatedly threw a basketball at an unsteady backboard, disregarding Hernandez’s requests to stop. 

“…the County conducted an investigation and later issued Hernandez a written reprimand for workplace violence and unbecoming conduct. The reprimand stated that during the verbal confrontation, Hernandez exhibited “aggressive” behavior by “challeng[ing] the [male] firefighter verbally,” and by “violating his body space with [her] aggressive head and arm gestures.”

“…we observe that the written reprimand Hernandez received for “workplace violence” and “unbecoming conduct” arose from a verbal disagreement. On its face, the severity of the reprimand appears disproportionate to the brief, non-physical altercation. The County employee who investigated the basketball incident described it as “minor” when compared with other altercations between firefighters that he had investigated in the past.”

The Court went on to find, “that based on the relative severity of the reprimand, its timing, and the other evidence in the record leading up to Hernandez’s protected activity, a reasonable jury could determine that the County retaliated against Hernandez.”

“The County”

It’s fair to ask, as some have, just who is meant when the court says, “the County.”

Of course, that would be anyone and everyone (at least) who signed off on a disciplinary action that was highly suspect on its face.

The Court all but says the Fire Rescue Department (FRD) was out to teach Hernandez a lesson for speaking up and defending her rights.

As horrible as the sexual harassment was, the retaliation claim is certain evidence of a rotting at the core because it implicates managers and leaders in an act with devastating consequences.

They initiated or approved a disciplinary measure that would have significant consequences for Hernandez, despite the fact that it didn’t even pass the laugh test.

They either engaged in retaliatory acts or lack the commonsense to understand the import of their actions; either case is very disconcerting. 

But the responsibility extends beyond that group to others, including IAFF Local 2068, which has failed to speak up aggressively to protest harassment and retaliation in the workplace.

If County Executive Bryan Hill is dis-inclined to have the Local involved in deciding who the next chief will be, perhaps the reason, at least in part, is found there.

In these matters silence equals consent and you don’t get a pass later on because you sat on your hands; that applies to both labor and management.

The very reason for the local union’s existence is to ensure a safe and equitable workplace especially in cases such as this.

(Whether or not Hernandez was a member of the union is not relevant given the need to protect members by speaking out.)

The list of people who shouldn’t be considered as the next chief, (or for any fire chief), includes all those with their fingerprints on the Hernandez affair, that we can say for sure.





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