Brian McEnery v. City of San Antonio and Chief Charles N. Hood
04-15-00097-CV
| Tex. App. | Oct 30, 2015Background
- Brian McEnery (fire captain) failed the assessment-center portion of the 2010 promotional exam for San Antonio Fire Department District Chief and grieved under the parties’ Collective Bargaining Agreement (CBA).
- McEnery’s grievance and arbitration focused on alleged procedural violations of Tex. Loc. Gov’t Code ch. 143 (e.g., not testing candidates together, oral questions, grading procedures) and relied on Harrison v. City of San Antonio.
- The arbitrator denied McEnery’s grievance; McEnery later sued in federal court over a similar 2009 exam challenge and lost; he then pursued state-court review of the 2010 arbitration award under the CBA’s narrow "substantial evidence / capriciousness" standard.
- At arbitration and in earlier pleadings McEnery did not press separate claims that (1) lack of post‑exam feedback violated Article 9 (Maintenance of Standards) of the CBA, or (2) that he was improperly failed on the tactical exercise — those issues surfaced only in a post‑evidentiary brief in state court.
- The trial court confirmed the arbitration award; defendants argued waiver of the new claims, that the arbitrator’s decision was supported by more than a scintilla of evidence, that prior federal judgment precluded relitigation, that the appeal was moot because McEnery later retook the exam and was promoted, and that the notice of appeal was untimely.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Waiver of new issues (feedback, tactical‑failure claim) | McEnery contends arbitrator’s award lacks support and was capricious based on absence of feedback and misgrading of tactical exercise. | City argues McEnery never grieved these specific issues or framed them for arbitration or pled them in state court, so they are waived. | Court treats these as waived — appellant failed to present them to arbitrator or plead them timely, so review is barred. |
| Whether lack of post‑exam feedback breached Article 9 (Maintenance of Standards) | McEnery: feedback was a longstanding practice/standard and its removal violated CBA and/or chapter 143’s transparency requirement. | City: CBA contains no feedback requirement; assessment center is expressly governed by separate CBA provisions that preempt chapter 143; feedback is post‑test and could not affect results. | Court affirms arbitrator: no CBA or statutory requirement for feedback; no proof feedback was an entrenched, unchangeable standard; arbitrator’s denial sustained. |
| Whether chapter 143 / Harrison invalidate the assessment center process | McEnery: chapter 143 requires transparency; deviations without explicit contractual agreement are unlawful (invoking Harrison). | City: Article 32 and §174.006 allow the parties to set assessment‑center rules that preempt chapter 143; Harrison is distinguishable. | Court (endorsing prior federal ruling) holds CBA and agreed guidelines govern assessment center; chapter 143 does not nullify it. Prior federal judgment also precludes relitigation. |
| Sufficiency of evidence that McEnery failed the tactical exercise | McEnery: his answers were correct and he should not have been failed. | City: assessors’ scores and contemporaneous notes show specific concerns (disorganization, poor eye contact, failure to address containment/rescue), providing more than a scintilla. | Court affirms: assessors’ grading sheets/notes constitute substantial evidence supporting failure; standard of review precludes reweighing. |
| Form of arbitrator’s written decision | McEnery: decision insufficiently specific and failed to address all evidence/issues. | City: CBA requires only a brief written opinion stating issues and decision; arbitrator complied. | Court holds arbitrator complied with CBA’s limited form requirements; no due‑process defect preserved. |
| Mootness and timeliness of appeal | McEnery did not argue mootness below; he pursued appeal. | City: McEnery later retook exam and was promoted (obtaining requested relief); his notice of appeal was untimely because post‑judgment requests did not extend appellate deadline. | Court finds claim moot (relief obtained) and that appellant’s request for findings/motion for new trial did not extend the 30‑day appeal period under the circumstances. |
Key Cases Cited
- Harrison v. City of San Antonio, 695 S.W.2d 271 (Tex. App. — San Antonio 1985) (discusses limits on secret/unauthorized deviations from CBA in promotional procedures)
- Railroad Comm’n of Tex. v. Torch Operating Co., 912 S.W.2d 790 (Tex. 1995) (defines "substantial evidence" as more than scintilla standard)
- CVN Group, Inc. v. Delgado, 95 S.W.3d 234 (Tex. 2002) (policy favoring limited judicial review of arbitration awards)
- In re Edwards Aquifer Auth., 217 S.W.3d 581 (Tex. App. — San Antonio 2006) (review under substantial evidence is a legal question)
- Mireles v. Texas Dep’t of Public Safety, 9 S.W.3d 128 (Tex. 1999) (discusses substantial evidence standard in administrative contexts)