Andrade v. City of San Antonio
| Decision Date | 16 January 2001 |
| Docket Number | No. Civ.A. SA99CA1292NN.,Civ.A. SA99CA1292NN. |
| Citation | 143 F.Supp.2d 699 |
| Parties | Samuel ANDRADE, Jr., Plaintiff, v. CITY OF SAN ANTONIO; Robert Ojeda, in his Individual and Official Capacities as Fire Chief; and Alex Briseno, Individually and in his Capacity as City Manager, Defendants. |
| Court | U.S. District Court — Western District of Texas |
Randolph P. Tower, Clemens & Spencer, San Antonio, TX, pro se.
Larry R. Daves, Larry R. Daves & Associates, San Antonio, TX, for Samuel Andrade, Jr.
Lowell F. Denton, Denton & Navarro, San Antonio, TX, for City of San Antonio, Robert Ojeda, Alex Briseno.
ORDER GRANTING, IN PART, AND DENYING, IN PART, DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
In this lawsuit, plaintiff, Samuel Andrade Jr., complains that defendants, the City of San Antonio, Fire Chief Robert Ojeda, and City Manager Alex Briseño (collectively referred to as "the City"), improperly rejected him for appointment to a beginning firefighter position with the San Antonio Fire Department ("S.A.F.D."). Andrade contends that the City's actions, and in particular his initial rejection and eventual termination from employment, constituted national origin discrimination under Title VII, free speech retaliation, in violation of the First Amendment of the United States Constitution, as well as violations of his free speech and due process rights under the Texas Bill Of Rights of the Texas Constitution.1 Upon consent of the parties to proceed on an expedited docket, the case was assigned to me for all purposes, including entry of final judgment, in accordance with 28 U.S.C. § 636(c).
The City has moved for summary judgment on all of Andrade's causes of action.2 Andrade has filed his opposition to the motion.3 In addition, both parties filed replies.4 I set the City's summary judgment motion for oral argument and the same was held on October 26, 2000. Having heard oral arguments by counsel, reviewed the pleadings on file and supporting summary judgment evidence, as well as the applicable case law, it is my opinion that summary judgment should be granted, in part, and denied in part.
Andrade's amended complaint predicates jurisdiction of this court under 42 U.S.C. § 2000e-5(f) & 28 U.S.C. § 1343(4).5 This court also has federal question jurisdiction pursuant to 28 U.S.C. § 1331.
The hiring practices followed by the City in the selection and rejection of firefighters have been the subject of extensive litigation in recent years, in both state and federal courts. Because some of the prior litigation is relevant to the instant lawsuit, it is necessary to discuss it within the factual context of this case.
It is undisputed that the Texas Civil Service Act ("the Act") governs the application procedures for a beginning position with the S.A.F.D.6 According to the statutory provisions in effect at the time of Andrade's application made the basis of this suit, all applicants wishing to become firefighters were required to take a qualifying entrance examination.7 Prior to the entrance exam, applicants are required to select a lottery number in the event of tied scores, and those with military service are given an additional five points.8 After the tests are graded, and any applicable veteran points added, any tied scores are resolved by the lottery numbers.9 The applicants are then placed on the eligibility list in order of rank.10 The list is certified, and for purposes of appointments, is only effective for one year.11 Although the Act sets forth the procedure for the entrance examination and the minimum qualifications needed,12 the S.A.F.D. also has a list of qualification factors and hiring procedures for firefighter applicants.13 The list appears to incorporate state and civil service requirements, as well as contain additional requirements applicable to the hiring process. The list, dated December 2, 1996, was approved by Fire Chief Ojeda.14
According to the S.A.F.D.'s application guidelines, in addition to taking the entrance examination, an applicant is considered suitable for a beginning firefighter position with the S.A.F.D. if he or she meets the following additional requirements: a physical agility test, a physical and mental examination, a background investigation, a screening board interview and a polygraph examination.15 If an applicant fails any one of these requirements, the applicant's file is brought to Fire Chief Ojeda's attention for verification of the results and the applicant is notified in writing that he or she has been automatically disqualified from further consideration. If an applicant is not automatically disqualified during the application process, the applicant is deemed suitable for consideration.16
As vacancies arise, the Act mandates that the chief executive "shall appoint the person having the highest grade unless there is a valid reason why the person having the second or third highest grade should be appointed."17 If the person with the second or third highest score is selected over the person with the highest score, the Chief Executive shall state "good and sufficient reasons" for the selection of that person over the one with the highest score.18 This statutory process is referred to as the "rule of three."19 The person appointed must serve a probationary one-year period "after which the person automatically becomes a full fledged civil service employee with full civil service protection."20
In the past, the City has admittedly failed to comply with the statutory "rule of three" provision in that the Fire Chief, and not the Chief Executive who in San Antonio is the City Manager, has been the one selecting or rejecting applicants for beginning positions. In April of 1997, Gina Marie Montemayor, filed a state court lawsuit against the City, challenging this very same practice.21 The state court issued a temporary injunction and Montemayor was placed in the City's Firefighter Training Academy class pending final resolution of her claims.22 Thereafter, the City discontinued the former process and the City Manager as Chief Executive began applying the "rule of three" to all applicants for each academy class since the Montemayor suit was filed, including the academy class made the basis of this suit.
In the instant case, the record shows that Andrade took the entrance examination on August 6, 1996.23 Based on his high score, Andrade was certified as applicant number 87 on the Firefighter Trainee Eligibility List that was processed for the 1997-B training academy class. Andrade was then asked to report to the San Antonio Police Training Academy to undergo a physical fitness test. Upon passing the physical, Andrade received detailed instructions from the Head of Applicant Processing, Lieutenant Hines, as to the remaining steps in the hiring process. Specifically, Andrade was informed that the hiring process consisted of the background investigation, screening board interview, polygraph report, physical exam, psychological exam and the chief's final review.24
Even though his background investigation revealed questionable information concerning a vehicle accident, his college transcript and past employment, he was not automatically disqualified at that stage.25 He also passed the fourth step of the process, namely, the screening board interview.26 Andrade, however, failed the polygraph exam on May 3, 1997.27
According to the summary judgment evidence, Andrade's polygraph results revealed deceptive answers to the following three questions: relevant question no. 3, involving thefts; relevant question no. 8, regarding the commission of a serious undetected crime, and relevant question no 12, concerning any lies or intentional withholding of information in his application with the S.A.F.D.28 The polygraph examiner notified Andrade of his failure to pass the polygraph and allowed him the opportunity to explain his deceptive responses. The examiner also gave Andrade two options: to retake the polygraph exam one final time on the same day to clear his deceptive responses or retake it at a later date with a different examiner. Andrade elected to proceed and retake the polygraph with the same examiner.29 Significantly, Andrade signed a Voluntary Polygraph Statement acknowledging his understanding that if he failed the polygraph exam again, his application would be withdrawn from consideration, and he would have to wait one year to reapply.30 Andrade's second polygraph showed deception in responding to the same questions as his first polygraph. Andrade was unable to offer an explanation for his performance in relation to those questions.31 Further, it appears that Andrade did not object to any of the polygraph questions or to the examiner's conduct during both polygraphs. His only concern at the time was to complete the application process.32
The City contends that due to the changes in the application process implemented in response to the Montemayor suit, the application process for the 1997-B academy class was delayed.33 As a result, despite Andrade's failure to pass the polygraph exam with non-deceptive answers, the City did not immediately request the Civil Service Commission ("the Commission") to remove his name from the eligibility list.34 On September 3, 1997, however, Fire Chief Ojeda formally requested the Commission to remove Andrade's name from the list finding him unsuitable for employment.35 Failing to pass the polygraph exam with non-deceptive answers was only one of the five reasons relied upon by the Fire Chief in petitioning the Commission to remove Andrade from the eligibility list. Other reasons included: unacceptable driving record (vehicle rollover); unacceptable work history; and Andrade's own admissions to initiating an altercation at a night club and of having a bad temper.36
Because the 1996 eligibility list was due to expire, and he was...
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