Former fire captain again denied jobless benefits over comments about ‘gay porn’

A former captain with the Des Moines Fire Department has again been denied jobless benefits after being fired for online comments suggesting a colleague had an interest in gay pornography.

State records indicate David Bernal last worked for the city on June 16, 2023, when he was fired. He had worked for the Fire Department for more than 30 years. The records indicate that in 2021, while serving as a captain, Bernal was demoted from that position to the position of fire engineer due to a series of actions the city found to be in violation of the policies dealing with ethics, violence prevention and business conduct.

At the time, Bernal was given a “last chance warning” as part of his discipline. The warning stated in part that “it is important for you to understand that any further violation of the City of Des Moines workplace policies, including of any type of retaliation towards any members of the fire department, or the City of Des Moines, will subject you to immediate termination.”

Bernal subsequently regained his position as captain and was working in that capacity on June 2, 2023, when he read a Facebook post of a medic who worked at the same fire station. The post included photos of the medic, who had recently traded shifts with another medic, with a group of children.

Bernal allegedly posted a response to the Facebook pictures with the comment, “Next time pick someone less fascinated with gay porn to trade with.”

Bernal was subsequently fired by the city. At a hearing where he sought to collect unemployment benefits, Bernal testified that his Facebook comment represented banter that he and his “brothers” at the fire station engaged, and said the comment was not meant to be disparaging toward any party, including gays.

In September, an administrative law judge rejected that claim, saying the evidence indicated it was “intended to be insulting,” adding that it portrayed the fire department in an unfavorable light. Bernal was denied benefits, and appealed that decision to the Iowa Employment Appeal Board.

The board recently upheld the judge’s decision, writing that there was little question that Bernal “was on notice” that comments of the kind he made were forbidden.

“It hardly seems necessary to observe that any person in authority commenting on the sexual conduct of a subordinate is inappropriate,” the board said in its decision. “Even more so for a fire captain on work time.”