• if the drug test is confirmed to be positive, he is subject to disciplinary action up to and including discharge. Wilburn checked the box acknowledging his consent and signed the form. He submitted a urine specimen, which tested positive for cocaine metabolite. The lab results, signed by the certifying scientist, were delivered to the MRO.
The policy makes the MRO responsible for receiving drug test reports, reviewing and interpreting lab reports, and speaking with the employee to determine whether some benign, alternative medical explanation accounts for the positive test result. If the MRO determines that a positive test result demonstrates a violation of the policy, the MRO must consult with the relevant department regarding the results and appear, when necessary, to represent the City in any proceeding involving drug testing or results.
After receiving the lab results, the MRO contacted Wilburn on July 26 to determine whether Wilburn had taken any medication that could have yielded the positive test results. Wilburn denied using cocaine and told the MRO that he had been taking an antibiotic. According to the MRO, the antibiotic Wilburn was taking would not have caused a false positive test for cocaine metabolite. The MRO informed Wilburn and the department of the testing results.
Two days later, Wilburn received a relief of duty status letter, signed by the acting fire chief. The letter explained that his relief of duty resulted from "an allegation of misconduct by you on or about July 21, 2010"—the date of the specimen collection—and would continue during the investigation.
The drug detection and deterrence policy provides that, "[i]f the GC/MS confirmatory test is positive, an employee may elect to have a second test performed on the original sample at his/her cost at a laboratory approved by the City." Wilburn requested the second test. In accordance with the policy, the MRO coordinated the retesting.
On August 5th, the second testing confirmed the positive result of the original test. In an August 6th memorandum entitled "Drug Test Result" and addressed to Wilburn, the MRO wrote:
In compliance with the City of Houston Drug Policy on Drug Detection and Deterrence, you participated in a urinalysis test of drugs procedure on 7-21-2010. A split specimen (or aliquot) of that urine collection was forwarded to Quest Diagnostics, Lenexa, KS, for confirmation testing. The result of that confirmation testing has been reported. The [MRO] who has reviewed your confirmation laboratory drug test result has determined that your split specimen (or aliquot) was POSITIVE for Cocaine.
The MRO’s signature appears at the end of the memo.
The policy dictates that "[a]n employee whose drug test result has been confirmed positive by GC/MS and determined to be positive by the MRO shall be indefinitely suspended/terminated." On August 19, the acting fire chief gave Wilburn a signed letter notifying him of the department’s decision to indefinitely suspend Wilburn’s employment and informing him of his right to appeal the decision. Wilburn appealed the decision to the Police Officers and Firefighters’ Civil Service Commission of Houston, which, after an evidentiary hearing, upheld the suspension. Wilburn then sought review in state district court under Chapter 143 of the Texas Local Government Code and the Texas Declaratory Judgment Act. Tex. Local Gov’t Code Ann. § 143.015 (West 2008); Tex. Civ. Prac. & Rem. Code Ann. §§ 37.001–37.009 (West 2008).
Discussion
I. Summary Judgment Standard of Review
We review de novo the trial court’s ruling on a motion for summary judgment. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). Under the traditional standard for summary judgment, the movant has the burden to show that no genuine issue of material fact exists and that the trial court should grant a judgment as a matter of law. Tex.R.Civ.P. 166a(c); KPMG Peat Marwick v. Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant and indulge every reasonable inference and resolve any doubts in the nonmovant’s favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accid. Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003).
Traditional summary judgment is proper only if the movant establishes that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(c). The motion must state the specific grounds relied upon for summary judgment. Id. A plaintiff moving for a traditional summary judgment must conclusively prove all essential elements of its claim. See Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999).
II. Compliance with Government Code Chapter 614
In his motion for summary judgment, Wilburn maintained that he is entitled to have the indefinite suspension reversed and to be reinstated because the City violated Chapter 614 of the Texas Government Code. That chapter mandates that a written copy of a complaint against a fire fighter, signed by the person alleging the misconduct, be served on the fire fighter "within a reasonable time after the complaint is filed." Tex. Gov’t Code Ann. § 614.023(a). In addition, the statute prohibits the indefinite suspension or termination of a fire fighter’s employment unless the complaint is investigated and evidence is found to prove the alleged misconduct. Id. § 614.023(c).
In granting the requested relief, the trial court agreed with Wilburn that the City’s failure to comply with section 614.023 invalidated its disciplinary action against Wilburn. The City contends that the trial court erred in granting summary judgment because its implementation of the policy does not require a signed complaint or an investigation, making Chapter 614 inapplicable.
Leaving aside the question of whether Chapter 614 requires a signed complaint in all circumstances resulting in disciplinary action against employees under its purview, we consider whether Wilburn satisfied his summary judgment burden. Wilburn’s motion relies on the acting fire chief’s responses to the following questions:
Q. Did you or anybody under your command fill out a complaint alleging that Captain Wilburn violated the drug policy?
A. No, sir. Q. Did you conduct an investigation to verify whether the results that the City brought here today are accurate? A. No sir, I did not. The acting fire chief’s responses, however, do not demonstrate whether the City complied with Chapter 614 in its implementation of the policy, which charges the MRO—not the fire chief—with the responsibility to determine whether the urinalysis test results provide a valid basis for disciplinary action. Before Wilburn received the letter of indefinite suspension on August 19, the City had provided him with two signed letters informing him of the complaint giving rise to that disciplinary action: the first from the acting department chief notifying Wilburn that he was on paid suspension pending an investigation of misconduct occurring on or about the date Wilburn provided the urine specimen, and the second from the MRO confirming that testing from both laboratories yielded a positive result for the presence of cocaine metabolite. These letters are some evidence that Wilburn received a copy of a signed complaint "within a reasonable time" after the basis for the complaint arose—that is, when Wilburn provided the sample for random testing under the policy.
The summary judgment evidence also demonstrates that the MRO investigated the veracity and accuracy of the urinalysis test results before the department took any disciplinary action against Wilburn. Before confirming and reporting the positive test results to the department, the MRO questioned Wilburn about whether he had consumed any medication on or before the testing date that could have caused a false positive result. The MRO also testified before the Commission that he has confirmed the chain of custody for samples when warranted. The MRO coordinated the second test, ensuring that the specimen went to a different independent laboratory. The MRO thus complied with the investigatory procedures delineated in the policy. As a result, we hold that Wilburn failed to meet his summary judgment burden to conclusively establish that the City failed to furnish him with a written complaint.
III. Evidence supporting the Commission’s Decision
The City also urges us to reverse the trial court and render judgment affirming the Commission’s decision because substantial evidence supports it. The City, however, did not move for summary judgment in the trial court. "Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal." Tex.R.Civ.P. 166a(c); see also City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 675 (Tex. 1979) (discussing rule).
Conclusion
We hold that Wilburn failed to satisfy his summary judgment burden. We therefore reverse the judgment of the trial court and remand the case for further proceedings.
