Damon L. Alsup v. City of Houston ( 2004 )

Affirmed and Memorandum Opinion filed June 17, 2004

Affirmed and Memorandum Opinion filed June 17, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-03-00489-CV

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DAMON L. ALSUP, Appellant

V.

THE CITY OF HOUSTON, Appellee

On Appeal from the 333^rd District Court

 Harris County, Texas

Trial Court Cause No. 02-56872

M E M O R A N D U M  O P I N I O N

Appellant, Damon L. Alsup, appeals the summary judgment granted in favor of the City of Houston in his appeal to the district court from the final order of the Fire Fighters= Civil Service Commission.  We affirm.

Alsup was employed as a firefighter with the City.  Alsup was also an Army Reservist, and on September 9, 2001, Alsup reported to Fort Bragg, North Carolina to attend a 25-day course for selection to the Army Special Forces.  On September 12, 2001, while Alsup was away, the City posted a notice announcing a promotional examination for the position of Engineer/Operator. The deadline for registration of the exam was October 12, 2001. 

Although Alsup returned to work on October 6, 2001, he was not sent to his home station until October 10, 2001.  Alsup saw the posted promotional exam on October 10, 2001, but failed to register for the exam by the October 12 deadline.  In the past, exceptions to the registration deadline were made frequently. However, Lonnie Vara, Director of Human Resources, issued a directive on October 5, 2001, providing that no exceptions to the registration deadline would be allowed for future police and fire promotional exams.  Alsup was not granted an exception to the October 12, 2001 registration deadline and, therefore, was not allowed to sit for the exam. 

Alsup filed a grievance, complaining that he was not allowed to register for the promotional exam after the registration deadline.  On August 28, 2002, a grievance examiner conducted a Afull and complete evidentiary hearing@ on Alsup=s grievance.  The grievance examiner denied Alsup=s grievance and made the following findings:  (1) the City has the authority to set deadlines for registration for promotional exams and to refuse to allow exceptions to those deadlines; (2) Alsup knew about the exam registration deadline at least two days prior to the deadline; and (3) Alsup failed to register prior to the deadline.

Alsup appealed the grievance examiner=s findings and recommendations to the Firefighters= Civil Service Commission.  The Commission sustained the grievance examiner=s findings and denied Alsup=s request to overturn the grievance examiner=s decision.  Alsup then appealed the Commission=s final order to the district court.  The City moved for summary judgment on Alsup=s appeal of the Commission=s order.  The trial court granted the City=s motion for summary judgment.  Alsup appeals the summary judgment.

As a preliminary matter, the City contends that we do not have jurisdiction because Alsup did not timely file his notice of appeal.  We disagree.  The trial court entered its final judgment on February 28, 2003.  The record reflects that on March 28, 2003, Alsup filed his motion to modify the judgment.  A notice of appeal must be filed within 90 days after the judgment is signed if any party timely files a motion to modify the judgment.  Tex. R. App. P. 26.1(a)(1). Thus, Alsup=s notice of appeal, which was filed on April 28, 2003, was timely. 

Appellant contends the trial court erred in granting summary judgment in favor of the City.  To prevail on a motion for summary judgment, a party must establish that no material fact issue exists and it is entitled to judgment as a matter of law.  Rhone-Poulnec, Inc. v. Steel, 997 S.W.2d 217, 222 (Tex. 1999).  In conducting this review, we take as true all evidence favorable to the nonmovant, and we make all reasonable inferences in the nonmovant=s favor. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). 

A firefighter who is dissatisfied with any commission decision may appeal the decision to district court for trial de novo.  Tex. Loc. Gov=t Code Ann. ' 143.015 (Vernon 1999).  Trial de novo, however, has been interpreted to mean review under the substantial evidence rule.  Firemen=s and Policemen=s Civil Serv. Comm=n v. Brinkmeyer, 662 S.W.2d 953, 955 (Tex. 1984).  In this context, trial de novo means A>a trial to determine only the issues of whether the agency=s rule is free of the taint of any illegality and is reasonably supported by substantial evidence.=@ Id. at 955B56 (quoting Fire Dep=t of City of Fort Worth v. City of Fort Worth, 141 Tex. 505, 217 S.W.2d 664, 666 (1949)).  The trial court must inquire whether the evidence introduced before it shows facts in existence at the time of the administrative decision which reasonably support the decision.  Id. While the trial court must hear and consider evidence to determine whether reasonable support for the administrative order exists, the agency is the primary fact-finding body, and the question to be determined by the trial court is strictly one of law.  Id.  If there is substantial evidence to support the Commission=s order, the courts are bound to follow the discretion of the administrative body. Id. 

At a trial on the merits, Alsup would bear the burden of showing that the Commission=s order was not supported by substantial evidence; however, it is the City=s burden, as movant for summary judgment, to show the Commission=s order was supported by substantial evidence.  Turner v. City of Carrollton Civil Serv. Comm=n, 884 S.W.2d 889, 894 n.4 (Tex. App.CAmarillo 1994, no writ). 

Alsup complains that the City, in violation of Chapter 143 of the Local Government Code, refused to allow him to register after the posted deadline and denied him entry into the Engineer/Operator exam, while allowing another firefighter to take the exam without having registered prior to the posted deadline.  Alsup also complains that Lonnie Vara, Director of the Fire Fighter=s Civil Service Commission of Houston, in violation of the Local Government Code, failed to provide him with a copy of the Civil Service Commission Rules after Alsup requested those rules. 

The Commission has the ability to apply the rules it seeks to adjudicate and determine if it is following the rules.  Lindsey v. Fireman=s & Policeman=s Civil Serv. Comm=n, 980 S.W.2d 233, 236 (Tex. App.CHouston [14th Dist.] 1998, pet. denied).  The Commission further has the authority to interpret any rules it has adopted.  Id. The hearing examiner similarly has the ability to apply the facts to the rules and determine if she is obeying them. Phillips v. City of Houston, 993 S.W.2d 357, 359 (Tex. App.CHouston [14th Dist.] 1999, no pet.); Nuchia v. Tippy, 973 S.W.3d 782, 786 (Tex. App.CTyler 1998, no pet.). 

After conducting a full evidentiary hearing on Alsup=s complaint, the grievance examiner found that even though Alsup had learned of the promotional exam two days prior to the registration deadline, he, nonetheless, had failed to register.  The grievance examiner, explaining her decision, stated:

Accepting as true each and every claim made by Mr. Alsup as to the absence of the test registration notice on the bulletin boards and his inability to get the information needed to prompt him to register prior to the deadline, Mr. Alsup testified that he knew about the deadline two days in advance.  He had two days to register.  Yes, he was very busy on those two days.  But had this test registration been a priority for him, he could have registered. He testified that his Captain would have allowed him to leave the station to register, but that he did not want to ask him because they were understaffed.  This is a noble gesture.  However, Mr. Alsup cannot reasonably expect to prevail in this hearing when he admits that he knew about the impending deadline, but did not request time away from the station to register, and did not register when he was off-duty because he was busy with other work-related matters.  However understandable his reasons, the fact remains that he had time, in spite of his military leave, to register for the exam prior to the deadline and he failed to do so.

Alsup complains that another firefighter, John Englehardt, was allowed to register for the promotional exam after the posted deadline.  At the hearing, Diana Rathjen, manager of the Classified Testing Division, testified that Englehardt=s case involved different circumstances.  Englehardt was indefinitely suspended during the entire time of the posting period, and was not eligible to sign up for the exam. Englehardt was eventually reinstated to full benefits as if he had never been off the City=s payroll effective October 20, 2001.^[1] 

We conclude the City met its burden to show that substantial evidence supported the Commission=s decision.  Therefore, the trial court properly granted summary judgment.  Accordingly, the judgment of the trial court is affirmed.

/s/      J. Harvey Hudson

Justice

Judgment rendered and Memorandum Opinion filed June 17, 2004.

Panel consists of Justices Yates, Anderson, and Hudson.

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^[1]  The City asserts that evidence regarding Englehardt was not presented to the hearing examiner and Alsup cannot present evidence to the district court that was not presented to the hearing examiner.  Contrary to the City=s contention that the hearing examiner did not hear of evidence of Englehardt=s circumstances, such evidence was clearly presented at the hearing. Moreover, the trial court may hear evidence not presented to at the grievance hearing because Athe issue is not whether the regulatory agency actually heard and considered sufficient evidence to support its action, but whether at the time the questioned order was entered there then existed sufficient facts to justify the agency=s order.@ Richardson v. City of Pasadena, 513 S.W.2d 1, 4 (Tex. 1974) (citations omitted); see also Garcia v. City of San Antonio, 427 S.W.2d 947, 949 (Tex. Civ. App.CSan Antonio 1968, writ ref=d n.r.e.) (holding that trial court did not err in admitting evidence which was not formally introduced before Commission because actual evidence heard by agency is not material because parties have opportunity before court to demonstrate that at time order was entered, there were or were not sufficient facts justifying order).