Willie L. Thurman, Plaintiff-appellant, v. Sears, Roebuck & Co., Defendant-appellee, 952 F.2d 128 (5th Cir. 1992)

Appealing the district court's grant of summary judgment in favor of Sears on statute of limitations grounds, Willie L. Thurman, former Sears employee, contends that a fact issue exists as to the actual date of his termination from employment. Finding that Thurman failed to present summary judgment evidence to create a genuine issue of material fact, we affirm.

* Willie L. Thurman began his employment with Sears in November 1977. He worked at Sears' Dallas Merchandise Distribution Center (DMDC) as a manual laborer--both as a "receiver" where he unloaded merchandise from a truck, and as a "merchandise handler" where he moved returned goods for further processing.

The evidence indicates that, beginning in 1985, Thurman suffered a series of job-related injuries. Thurman claims that after each of these injuries, Sears placed him on leave of absence and reinstated him when he demonstrated that he was again able to perform his job duties. In March 1986, Thurman sustained the injury about which he now complains. Following this injury, Sears placed Thurman on a medical leave of absence, and Thurman filed a claim for workers' compensation. Thurman asserts that he was ready to go back to work at Sears in June 1986. Because of restrictions imposed by his doctor, however, Thurman was unable to perform the duties of a heavy merchandise handler and, therefore, Sears assigned him to a job where he swept floors and performed other light duties.

In 1987, Sears began a reorganization of the DMDC workforce and, in April 1987, as part of this reorganization, Sears asked Thurman to voluntarily terminate his employment. Thurman declined and continued as a light merchandise handler until May 1987, when he was informed that his light duty job was eliminated.¹  According to Thurman, Sears informed him at that time that he was being placed on a leave of absence.

Thurman's last day at Sears was May 18, 1987. The next day, Thurman filed a claim for unemployment benefits with the Texas Employment Commission. A few weeks later, on June 5, Thurman executed a release and waiver. On that same date, Thurman signed a document acknowledging that he was placed on leave of absence and that he received a lump-sum payment in consideration for signing these documents.²  Thurman claims that, after recovering fully from his injury, he could once again perform heavy lifting, and therefore, in December 1987, and again in January 1988, Thurman contacted Sears, seeking to be reinstated to his job as a heavy merchandise handler. Sears, however, denied Thurman's request on both occasions and, in May 1988, Thurman received notification from Sears that his leave of absence from Sears expired on May 19, 1988.

On July 17, 1989, Thurman brought suit against Sears in Texas state court, asserting a cause of action under article 8307c of the Texas Revised Civil Statutes. See Tex.Rev.Civ.Stat.Ann. art. 8307c, § 1 (West Supp.1991). Thurman alleged that:

[A]fter Plaintiff recovered from his injuries, and requested on at least two occasions to return to work, Sears refused to reinstate him and continued him on leave of absence. In May of 1988, Sears terminated his employment, ostensibly because his one year's leave of absence had expired. Plaintiff would show that the true reason for his discharge by the Defendant was in retaliation for filing a claim under the Workers' Compensation Act....

Record on Appeal at 7, Willie L. Thurman v. Sears, Roebuck & Co., No. 91-1026 (5th Cir. filed Jan. 23, 1991) (Plaintiff's Original Petition) ["Record on Appeal"].

Sears timely answered the state court lawsuit, raising the statute of limitations as an affirmative defense and, subsequently, removed the case to federal court. Sears filed its initial Motion to Dismiss and Alternative Motion for Summary Judgment, urging three grounds for dismissal of Thurman's lawsuit: (i) Thurman's claim was barred by limitations; (ii) Thurman released all claims against Sears relative to the termination of his employment; and (iii) Thurman's termination was not in retaliation for the filing of the workers' compensation claim.³  The district court denied Sears' motion because it found Thurman had not had time to complete adequate discovery. Sears then filed an Amended Motion to Dismiss and Alternative Motion for Summary Judgment, which, in addition to asserting the defenses of limitations, release and a lack of a causal relationship between Thurman's termination and Thurman's filing of a workers' compensation claim, also asserted that Thurman's claim is preempted by the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001, et seq. (ERISA).⁴  Sears then filed a Supplemental Motion to Dismiss and Alternative Motion For Summary Judgment. The district court granted Sears' Supplemental Motion, concluding Thurman's lawsuit was barred by limitations because Thurman's cause of action accrued on May 18, 1987.⁵  Thurman appeals from that order granting summary judgment.

II

Because this case is an appeal from summary judgment, we review the record de novo. See Guthrie v. Tifco Industries, 941 F.2d 374, 376 (5th Cir. 1991). Summary judgment is proper if the movant demonstrates the absence of genuine issues of material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). The movant accomplishes this by identifying portions of the record which reveal that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Anderson, 477 U.S. at 250, 106 S. Ct. at 2511. Upon such a showing, the burden is then shifted to the nonmovant, who "must come forward with 'specific facts showing that there is a genuine issue for trial.' " Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986) (emphasis in original), quoting Fed. R. Civ. P. 56(e). We examine the affidavits, pleadings, depositions and answers to interrogatories that were before the trial court to determine whether there is an absence of any genuine issues of material fact. See Randolph v. Laeisz, 896 F.2d 964, 969 (5th Cir. 1990). When "the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.' " Matsushita, 475 U.S. at 586, 106 S. Ct. at 1356 (citation omitted).

III

Thurman appeals the summary judgment in Sears' favor, contending: (a) that a fact issue exists as to the actual date of his termination from employment; (b) that, in the alternative, Sears should be equitably estopped from asserting that the limitations period began before he sought reinstatement in December 1987; and (c) that, if this court finds Thurman was terminated in May 1987, then Sears' refusal to rehire him constitutes "discrimination in any other manner."

* Article 8307c of the Texas Revised Civil Statutes is one of Texas' statutory exceptions to the common-law doctrine of employment-at-will. See Winters v. Houston Chronicle Pub. Co., 795 S.W.2d 723, 724 n. 1 (Tex.1990); see also Azar Nut Co. v. Caille, 734 S.W.2d 667, 669 (Tex.1987) (Spears, J., concurring and dissenting). The statute provides:

No person may discharge or in any other manner discriminate against any employee because the employee has in good faith filed a claim, hired a lawyer to represent him in a claim, instituted or caused to be instituted, in good faith, any proceeding under the Texas Workmen's Compensation Act, or has testified or is about to testify in any such proceeding.

Tex.Rev.Civ.Stat.Ann. art. 8307c, § 1 (West Supp.1991). An aggrieved employee who wishes to file suit under this statute has two years within which to institute litigation after her cause of action accrues. See Luna v. Frito-Lay, 726 S.W.2d 624, 625 (Tex.App.--Amarillo 1987, no writ); see also Smith v. Coffee's Shop for Boys and Men, 536 S.W.2d 83, 84 (Tex.Civ.App.--Amarillo 1976, no writ). Under article 8307c, a cause of action accrues when facts exist authorizing the employee to seek judicial relief. See Luna, 726 S.W.2d at 628.

In Smith v. Coffee's Shop for Boys and Men, the court of appeals found Smith's action under article 8307c barred by limitations.⁶  Smith alleged that Coffee's unlawfully refused to permit her to return to work because she had filed a workers' compensation claim, and she asserted that her cause of action should not be barred by limitations because the last refusal to reinstate employment by Coffee's was within the two-year limitations period. The court disagreed, concluding that "Smith's cause of action under the statute was for discriminatory discharge and not for Coffee's refusal to later re-employ her." Smith, 536 S.W.2d at 85. The Smith court, while it did not expressly articulate a standard to determine when a cause of action accrues under article 8307c, stated that "the acts statutorily condemned are those occurring during the employment, and not afterwards." Id. Therefore, the court determined that Smith's cause of action for discriminatory discharge necessarily accrued, at the latest, when Coffee's asked Smith to return to work and Smith refused and instead went on vacation.

In 1987, in Luna v. Frito-Lay, the court of appeals addressed another appeal involving a lawsuit under article 8307c.⁷  This time, the court articulated a standard designed to isolate the accrual date of a cause of action under article 8307c. The court, holding that causes of action brought under article 8307c are governed by a two-year statute of limitations, concluded that a plaintiff's cause of action accrues when facts authorizing the plaintiff to seek judicial relief are available.⁸  See Luna v. Frito-Lay, 726 S.W.2d 624, 628 (Tex.App.--Amarillo 1987, no writ), citing Williams v. Pure Oil Co., 124 Tex. 341, 78 S.W.2d 929, 931 (1935) (cause of action accrues when facts exist authorizing the assertion of a claim for relief); Lowery v. Juvenal, 559 S.W.2d 119, 121 (Tex.Civ.App.--Amarillo 1977, writ ref'd n.r.e.) (cause of action under former article 5526 accrues and limitations period begins when facts exist authorizing claimant to seek judicial relief).

B

Thurman argues that the facts of Luna are "virtually analogous" to the instant case and suggests that the court found that Luna's cause of action accrued "when the employee was denied reinstatement" and, therefore, Thurman's cause of action should be deemed to have accrued when Sears denied Thurman's December request for reinstatement. While we find the facts of Luna to be similar to those in this case, we believe that Thurman misconstrues the true import of Luna. In Luna, the court did not find the mere denial of Luna's request for reinstatement as the event which gave rise to Luna's cause of action; instead, the court determined that Luna was discharged at the time his request for reinstatement was denied because he was then told that Frito-Lay could not use him anymore and he had been replaced. The court found also that Luna "himself took this to be a discharge because the only other time he spoke with [Frito-Lay] after receiving a full work release was when he returned a telephone call from [Frito-Lay's] bookkeeper." Luna, 726 S.W.2d at 628. Accordingly, because a denial of a request for reinstatement--whether it occurs after a leave of absence or a termination--is not the benchmark by which we determine the accrual date of a cause of action under article 8307c, we must focus on the time when Thurman received notice of his termination. See id. (noting "that accrual of an action for termination of employment under federal statutes occurs when the employee is informed that his employment will be terminated, not when it actually is terminated", citing Delaware State College v. Ricks, 449 U.S. 250, 258-59, 101 S. Ct. 498, 504, 66 L. Ed. 2d 431 (1980)).

C

Although we sit as an Erie court, we follow Luna's suggestion and examine federal case law to determine the accrual date for an action under article 8307c. Thurman also suggests we should follow Luna in that regard, citing Naton v. Bank of Cal., 649 F.2d 691 (9th Cir. 1981); Bonham v. Dresser Indus., 569 F.2d 187 (3d Cir. 1977) cert. denied, 439 U.S. 821, 99 S. Ct. 87, 58 L. Ed. 2d 113 (1978), and argues that an employer's acts or words must "clearly notify" or give "unequivocal notice" to the employee that he is discharged in order for that employee to be informed of the termination and in order for the limitations period to begin under article 8307c.

In Bonham, the Third Circuit addressed an appeal under the ADEA where the plaintiff received notice of his termination and stopped working on October 31 yet continued to receive certain benefits until December 31. The court, examining the date of plaintiff's termination for purposes of determining whether plaintiff filed a charge with the Secretary of Labor within the federal 180-day period, held that "where unequivocal notice of termination and the employee's last day of work coincide, then the alleged unlawful act will be deemed to have occurred on that date, notwithstanding the employee's continued receipt of certain employee benefits such as ... extended insurance coverage." Bonham, 569 F.2d at 191, citing Payne v. Crane Co., 560 F.2d 198, 199 (5th Cir. 1977) (per curiam) (discharge occurs when employer shows, by acts or words, clear intention to dispense with employee's services) (other citations omitted). The Bonham court also expressly disapproved of any rule which focused on an employer's official termination date, reasoning:

a company may use different termination dates for different purposes.... Moreover, we would be wary of any approach which determines the timeliness of an employee's suit against his employer solely on the basis of records which are within the exclusive control of the employer. On the other hand, we would also view with disfavor a rule that penalizes a company for giving an employee periodic severance pay or other extended benefits after the relationship has terminated rather than severing all ties when the employee is let go.

Id. at 191-92.

Looking to Bonham, the court in Naton v. Bank of Cal., 649 F.2d 691 (9th Cir. 1981), enunciated a rule which isolated the accrual date of a cause of action under the ADEA. In Naton, the plaintiff was notified of his termination and stopped working for his employer on January 17. Naton, however, was officially terminated for administrative purposes on May 2, which was the "effective termination" date entered on his employer's separation report and the date Naton stopped drawing separation pay. In determining the accrual date of his cause of action, the Ninth Circuit held that "when unequivocal notice of termination and the last day of work coincide, the alleged unlawful practice occurs on that date." Naton, 649 F.2d at 695. The court then concluded that those events coincided on January 17, 1985. Id.

We find the Bonham test--"where unequivocal notice of termination and the employee's last day of work coincide, then the alleged unlawful act will be deemed to have occurred on that date"--will serve to eliminate ambiguities as to the commencement date of the limitations period and should be utilized in determining when facts exist authorizing a claimant to seek judicial relief for wrongful termination under article 8307c. Because federal law in this regard is consistent with state law, we hold that the limitations period for a suit for wrongful termination under article 8307c will commence when the employee receives unequivocal notice of his termination or when a reasonable person would know of the termination. See Bonham v. Dresser Indus., 569 F.2d 187, 192 (3d Cir. 1977) cert. denied, 439 U.S. 821, 99 S. Ct. 87, 58 L. Ed. 2d 113 (1978) (test is not entirely subjective and limitations period begins when employee knows or a reasonable person should know that employer has made final decision to terminate him and employee renders no further services).

D

Applying this test to the case before us, we must determine the date on which Thurman received unequivocal notice of his termination or when a reasonable person would have known that he was terminated. Id.

* Thurman argues that he timely filed suit within the two-year limitations period because he was not actually discharged from Sears until December 1987--the time when Sears refused to reinstate him after what Thurman regarded a leave of absence.⁹  Thurman asserts that a leave of absence is not a discharge sufficient to start the running of the statute of limitations since it is not unequivocal notice of a termination. Moreover, Thurman argues, he did not have such unequivocal notice of the discharge until December 1987--the time he sought reinstatement to Sears. For support, Thurman refers to the following: (i) Thurman's own testimony that he was told that he was being placed on leave of absence beginning May 19;¹⁰  (ii) Sears' past practices which, Thurman alleges, led him to believe he would be reinstated following the leave of absence;¹¹  (iii) the fact that no one at Sears told Thurman that he was terminated at any time prior to Sears' refusal to reinstate him;¹²  (iv) a letter dated June 9, 1987, informing Thurman that his leave of absence would expire on May 19, 1988; (v) a Sears' letter received by Thurman in May 1988, which informed Thurman that his leave of absence expired on May 19, 1988; and (vi) the unit closing severance allowance plan which Thurman did not interpret to be notice of his termination.¹³ 

Sears contends that Thurman's claim is barred by the two-year statute of limitations because Thurman knew he was terminated from his employment with Sears on May 18, 1987 when Thurman's job was eliminated pursuant to a reduction in force, or, at the latest, on June 5--the date on which Thurman executed a full release and waiver of claims relative to the termination of his employment with Sears. Sears contends that Thurman's knowledge of his termination on May 18 is well-supported by the evidence in the record, including the following: (i) Thurman ceased working at Sears on May 18; (ii) testimony of Gwen Chandler, Sears Personnel Administrator, that she informed Thurman of his termination from Sears;¹⁴  (iii) testimony of Susan Blanchard, the manager of the department in which Thurman worked, that Thurman was terminated as of May 18; (iv) Thurman's own testimony that he was told as of May 18 that he was no longer employed at Sears;¹⁵  (v) the fact that Thurman filed a claim for unemployment benefits with the Texas Employment Commission on May 19;¹⁶  (vi) the finding made by the Texas Employment Commission;¹⁷  (vii) the release and waiver of all claims related to his employment at Sears which Thurman executed on June 5;¹⁸  (viii) the cash and insurance benefits received by Thurman; (ix) the fact that Sears stopped paying social security tax and withholding income tax on Thurman's behalf as of May 18, 1987;¹⁹  (x) the realities of the reorganization;²⁰  and (xi) the fact that Thurman was administratively listed as being on a leave of absence only so that he could continue receiving certain benefits such as health and life insurance benefits.²¹ 

2

Thurman forcefully argues that because a leave of absence, standing alone, does not sever the employment relationship, it will not start the statute of limitations running on a claim of discriminatory discharge, and therefore, his leave of absence commencing on May 18, 1987 should not be equated to a termination of his employment. We agree. Texas law does not regard a leave of absence as a complete separation from employment. See Chenault v. Otis Eng'g Corp., 423 S.W.2d 377, 383 (Tex.Civ.App.--Corpus Christi 1967, writ ref'd n.r.e.) (citations omitted). Rather, under Texas law, a leave of absence "connotes a continuity of the employment status, during which time performance of the duties of his work by the employee and remuneration by employer and other fringe benefits may be suspended." Id. Therefore, we do not interpret Thurman's "leave of absence,"²²  by itself, to be a discharge from his employment. Nonetheless, having analyzed the acts and words of Thurman and the Sears' representatives, we conclude that the summary judgment evidence proffered by Sears--the testimony of two Sears' representatives, Thurman's deposition testimony, and the representations Thurman made to the Texas Employment Commission--discloses that Thurman knew on May 18, 1987 that he had been discharged.²³  The latest that Thurman received unequivocal notice of his discharge was June 5--the date on which Thurman executed the release and waiver of his claims relative to his termination by Sears. Apart from the testimony set forth in Thurman's Second Affidavit, the only other summary judgment evidence suggesting that Thurman did not know that he was terminated as of May 18 was that Sears administratively listed Thurman as being on a leave of absence.²⁴  We find Bonham persuasive on this point. See Bonham v. Dresser Indus., 569 F.2d 187, 191-192 (3d Cir. 1977), cert. denied, 439 U.S. 821, 99 S. Ct. 87, 58 L. Ed. 2d 113 (1978). (disfavoring rule that penalizes employer for giving employee severance pay or other extended benefits after the employment relationship has terminated); see also Naton v. Bank of Cal., 649 F.2d 691, 695 (9th Cir. 1981) (citing Bonham with approval). We conclude the summary judgment evidence discloses that Thurman stopped working for Sears on May 18, 1987 and that, as of that time, Thurman had unequivocal notice that Sears terminated him.

3

Thurman contends, in the alternative, that the statute of limitations should be equitably tolled until the date on which Sears informed Thurman that he was discharged,²⁵  reasoning that he was entitled to rely on Sears' representations that he was on leave of absence. Sears argues that Thurman's equitable estoppel argument fails because that argument falsely assumes that Thurman was placed on a "medical" leave of absence. Instead, Sears contends, Thurman was, as he was informed, listed administratively on a leave of absence so that he could continue to receive benefits. Having determined that Thurman had unequivocal notice that he was terminated by Sears on May 18, we also find it unnecessary to address this issue.

4

Finally, Thurman argues that Sears' failure to reinstate him constitutes "discrimination in any other manner" and urges this court to find Sears' failure to reinstate him constitutes an independent violation of article 8307c.²⁶  In order to pursue an action under article 8307c, however, there must be a present employer-employee relationship. See Stoker v. Furr's, 813 S.W.2d 719, 724 (Tex.App.--El Paso 1991, writ requested) ("We hold that neither a wrongful discharge suit nor an employment discrimination suit can be brought under Article 8307c in the absence of an existing employer/employee relationship."); see also Smith v. Coffee's Shop for Boys and Men, 536 S.W.2d 83, 85 (Tex.Civ.App.--Amarillo 1977, no writ) ("Thus, clearly, the acts statutorily condemned are those occurring during the employment, and not afterwards."). Because there did not exist an employment relationship between Sears and Thurman in December 1987, Sears' failure to recall Thurman in December 1987 is not actionable under article 8307c.

IV

Accordingly, we AFFIRM.