Firefighter’s Failure To Pass Test Does Not Amount To Misconduct

Most unemployment compensation laws in the country, including those in Texas, distinguish between employees who are terminated for “misconduct” and employees who are terminated for other reasons. If the basis for a termination rises to the level of misconduct, the employee is typically not eligible to receive unemployment compensation benefits. A recent case in Texas follows the general trend that failure to pass an employer’s certification test does not amount to misconduct justifying the denial of unemployment compensation benefits.

The case involved Sally Trimble, who began working for the Houston Fire Department in 2004. At the time she was hired, and as a condition of her employment, Trimble was told that she would have to successfully complete firefighter training and demonstrate “skills proficiency.”

On December 22, 2004, Trimble failed to complete the “air pack maze evolution,” which was required to successfully complete the fire training program conducted at Houston Community College. When the instructor requested that Trimble be removed from his class, Trimble met with a deputy chief. The deputy chief told Trimble that she had two options – resign and reapply at a later date or be terminated. Trimble refused to resign and told the deputy chief that she would rather receive unemployment benefits than resign.

Little more than 30 days later, the Fire Chief terminated Trimble “for a failure to complete the air pack maze skills portion of fire training.” Trimble filed a claim for unemployment compensation benefits. When the City rejected the claim, the issue ended up in the Texas Court of Appeals.

The City contended that, by failing to complete the air pack maze test, Trimble violated the Department’s code of conduct, which required her to complete the fire training program. In the eyes of the City, the violation of the Code of Conduct amounted to misconduct.

The Court sided with Trimble. The Court noted that “other jurisdictions have held that a claimant’s failure to pass a certification test required for employment is not misconduct, though a failure to diligently attempt to obtain the required certification may be misconduct. This is not a case in which Trimble failed to attempt to make a good faith effort to pass the fire safety course, including the air pack maze evolution. Indeed, the record shows that she tried on two occasions to pass the test. Trimble also practiced outside her classes in an attempt to improve her performance. Nevertheless, she was unable to pass the test during class and received a grade of incomplete.

“There is evidence that Trimble’s failure to complete the air pack maze evolution was due to either her health issues or claustrophobia. There is no evidence of intent or a careless disregard for the consequences. Her inability to perform her job is not transformed into misconduct simply by labeling it a failure to meet a condition of employment.”

Texas Workforce Commission v. City of Houston, 2008 WL 4670914 (Tex.App. 2008).

This article appears in the January 2009 issue