Montemayor v. City of San Antonio Fire Department

985 S.W.2d 549, 1998 Tex. App. LEXIS 7946, 1998 WL 892435
CourtCourt of Appeals of Texas
DecidedDecember 23, 1998
Docket04-98-00218-CV
StatusPublished
Cited by29 cases

This text of 985 S.W.2d 549 (Montemayor v. City of San Antonio Fire Department) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Montemayor v. City of San Antonio Fire Department, 985 S.W.2d 549, 1998 Tex. App. LEXIS 7946, 1998 WL 892435 (Tex. Ct. App. 1998).

Opinions

OPINION

PAUL W. GREEN, Justice.

This appeal questions whether a fire chief has absolute discretion to terminate a probationary fire fighter. We affirm the trial court’s judgment, which holds the fire chief [550]*550has discretion to discharge probationary fire fighters.

Background

Gina Marie Montemayor passed the fire academy test with a high score. She was also interviewed by a board of three high-ranking fire fighters. When Montemayor learned she had failed the interview, she complained to the district fire chief that she was asked inappropriate questions about sex and religion. In response, the fire department gave Montemayor a second interview, which she passed. The fire chief, however, did not select Montemayor for the academy. Instead, he chose candidates with lower test scores.

Montemayor then sued the City of San Antonio, City Manager Alexander Briseño, the San Antonio Fire Department, and Fire Chief Robert Ojeda (collectively, the City) for injunctive relief and for a declaration that the City violated section 143.026 of the Local Government Code. This statutory provision required the city manager to fill opening fire fighter positions with the applicants having the highest test scores. Montemayor alleged she was passed over in retaliation for her complaints about the review board.

The trial court found the City violated section 143.026 and issued a temporary injunction that permitted Montemayor to enter the academy and that enjoined the City from taking any action to prevent her from completing her studies. Montemayor entered the academy, became an employee of the fire department, and completed the course. The fire department, however, alleged her performance was substandard and refused to place her in a fire station with the other academy graduates.

The City filed a motion for summary judgment arguing the fire chief had sole discretion to fire probationary fire fighters. The City also argued that any claim based on retaliation or discrimination was not ripe because Montemayor had not received a right to sue letter from the Equal Employment Opportunity Commission. Finally, the City alleged the temporary injunction was void because Montemayor had failed to post a bond. Montemayor responded to these arguments and also alleged the fire chiefs action was barred by res judicata because he previously reprimanded her. The trial court granted the summary judgment “upholding the exclusive authority of the Fire Chief to terminate the probationary employment of the Plaintiff.”

Standard and Scope of Review

We review a summary judgment de novo. To prevail on summary judgment, the mov-ant must show there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Nixon v. Mr. Property Management, Co., 690 S.W.2d 546, 548-49 (Tex.1985). In deciding whether there is a disputed fact issue precluding summary judgment, evidence favorable to the nonmovant is taken as true. Nixon, 690 S.W.2d at 548-49. Every reasonable inference is indulged in favor of the nonmovant and any doubts resolved in the nonmovant’s favor. Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984).

As the summary judgment indicates, the narrow issue in this appeal is whether the fire chief had discretion to terminate Monte-mayor’s employment. We need not address whether the temporary injunction was void, whether Montemayor’s retaliation claims were ripe, or whether Montemayor raised fact issues about her performance in the academy.1 See State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex.1993) (limiting review of a specific summary judgment). Additionally, we need not address Montema-yor’s complaints raised for the first time at oral argument — whether the judgment was supported by the pleadings or whether the city manager, rather than the fire chief, should terminate probationary fire fighters. See Tex.R.App. P. 38.1(h) (requiring briefs to contain argument); Tindle v. Jackson Nat'l Life Ins. Co., 837 S.W.2d 795, 801 (Tex. App. — Dallas 1992, no pet.) (requiring brief[551]*551ing in addition to a Malooly point2); see also San Jacinto River Auth. v. Duke, 783 S.W.2d 209, 210 (Tex.1990) (prohibiting reversal in the absence of properly assigned error).

The Fire Chiefs Discretion

Montemayor asserts the fire chiefs discretion to terminate probationary fire fighters is limited to good cause, while the City contends the fire chiefs discretion is absolute. We agree with the City.

The Local Government Code characterizes a fire fighter, police officer, or academy trainee as a one-year probationary employee. Tex. Looal Gov’t Code Ann. § 143.027(a) (Vernon 1988). During the probationary period, “the department head shall discharge the [probationary] person and remove the person from the payroll if the person’s appointment was not regular or was not made in accordance with this chapter or the commission rules.” Id. § 143.027(b). Once the probationary employee completes the probationary period, the employee “becomes a full-fledged civil service employee and has full civil service protection.” Id. § 143.027(d).

Until the probationary fire fighter completes the probationary period, the fire fighter serves at the discretion of the fire chief. Wells v. City of Houston, 613 F.Supp. 479, 481 (S.D.Tex.1985), aff'd without opinion, 788 F.2d 1563 (5th Cir.1986); see also Sfair v. City of San Antonio, 274 S.W.2d 581, 583 (Tex.Civ.App. — San Antonio 1955, writ refd n.r.e.) (holding that chiefs decision to discharge probationary employee is final and not appealable). The statute’s directive regarding discharge of employees with “irregular” appointments does not limit the authority of the fire chief to discharge probationary fire fighters. See Garcia v. Garcia, 751 S.W.2d 274, 276 (Tex.App. — San Antonio 1988, no writ) (interpreting similar language from the local rules of the Laredo Civil Service Commission).3 Thus, in this case, the fire chief has discretion to either retain or terminate Montemayor.

Montemayor contends the local collective bargaining contract modifies the terms of the statute. The agreement specifically provides:

Persons enrolled in the initial Fire Academy shall hold the position of Fire Fighter Trainee. As such, he shall be considered a civilian employee and is not a member of the bargaining unit covered by this Agreement nor shall he he subject to any terms of this Agreement or of Chapter US Local Government Code.

(Emphasis added). This provision does not apply to Montemayor because she is no longer enrolled in the fire academy. Even if it did apply, it offers Montemayor no protection beyond that of an at-will employee.

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Bluebook (online)
985 S.W.2d 549, 1998 Tex. App. LEXIS 7946, 1998 WL 892435, Counsel Stack Legal Research, https://law.counselstack.com/opinion/montemayor-v-city-of-san-antonio-fire-department-texapp-1998.