Texas BC Alleges ADA and GINA Retaliation

A battalion chief with the San Antonio Fire Department has filed suit claiming that city has failed to comply with an Equal Employment Opportunity Commission Conciliation Agreement related to medical examinations and retaliated against him for his role in filing complaints with the EEOC. Battalion Chief Brian McEnery filed suit today in US District Court for the Western District of Texas.

Chief McEnery’s EEOC complaints go back to 2011, and pertain to parts of the city’s medical surveillance program that he claimed violated the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act. The EEOC agreed resulting in a Conciliation Agreement between the San Antonio Fire Department and the EEOC on September 29, 2022.

The agreement required the city to submit an agreement-compliant policy for medical testing going forward. The city failed to do so, and after Chief McEnery was sent for a medical exam that did not comply with EEOC requirements he again complained. Shortly after informing the department he would again be filing a new complaint with the EEOC, he was sent for a random drug test under highly questionable circumstances.

Quoting from the complaint:

• On March 26, 2023, McEnery was ordered to submit to a drug test.
• On that day, a specimen collection technician arrived to administer a random drug test on McEnery. McEnery had his supervisor sign off as a witness on the drug testing order.
• Although the order was given to McEnery on March 26, 2023, it was dated December 7, 2022.
• McEnery told the technician and his supervisor that the drug test policy allowed for a firefighter to go to their own doctor to have a separate test taken as long as that test was done within four hours. 
• McEnery asked how he was supposed to do that when the technician came to collect the sample at 5:40 pm on a Sunday. 
• It was effectively impossible for McEnery to exercise his rights under the program.

Besides the harassment, Chief McEnery claims has been repeatedly passed over for promotion to assistant chief since he filed the original complaint in 2011, in favor of “substantially less qualified individuals.”

The suit alleges violations of the ADA, the Texas Labor Code, GINA, and retaliation.

Here is a copy of the complaint: