District Fire Chief’s grievance moot after later promotion

Brian McEnery v. City of San Antonio and Chief Charles N. Hood, 04-15-00097-CV (Tex. App. – San Antonio, June 1, 2016).

This is an appeal from a trial court’s order confirming an arbitration award that denied McEnery’s grievance against the City of San Antonio. The court determined the matter was moot.

McEnery took a civil service promotional exam for district chief which consisted of a written exam and practical exam. McEnery passed the written examination but only part of the practical. McEnery filed a grievance, alleging the assessment center portion of the exam was not given in accordance with Chapters 143 and 174 of the Texas Local Government Code and the collective bargaining agreement (“CBA”). Thereafter, McEnery’s grievance was arbitrated and the arbitrator denied McEnery’s relief, finding “there was no convincing evidence or testimony that the test given was faulty or flawed…” McEnery then filed suit. After a bench trial, the trial court rendered judgment denying all of McEnery’s relief.

The San Antonio Court of Appeals held a case is moot when a court’s action on the matter would not have any practical legal effect on the controversy. McEnery asked the trial court to vacate the arbitration award and order the City to permit him to retake the assessment center portion of the exam. However, it is undisputed McEnery was promoted to district chief during the pendency of this suit.    McEnery’s case no longer presents a live controversy as a result of his promotion. McEnery argued his promotion to district chief does not moot the appeal because his request to allow his colleagues to retake the exam and his request for back pay are still pending and justiciable.  However, a review of the record demonstrated neither were sought by McEnery during arbitration. Those were added in the litigation. The limited scope of the judicial review does not permit such relief. The case is therefore moot.

If you would like to read this opinion click here. Panel: Justice Angelini, Justice Barnard, Justice Chapa. Memorandum Opinion by Justice Barnard. The attorneys listed for McEnery are Floyd Contreras
Ronald Prince. The attorney listed for the City is Deborah Lynne Klein.

Leave a Comment