Ronald Eaves v. CooperHeat-MQS, Inc.--Appeal from 136th District Court of Jefferson County

NUMBER 13-01-256-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

  RONALD EAVES, Appellant,

v.

 COOPERHEAT-MQS, INC.,   Appellee.

___________________________________________________________________

On appeal from the 136th District Court

of Jefferson County, Texas.

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O P I N I O N

Before Justices Dorsey, Ya ez, and Wittig[1]

Opinion by Justice Wittig

Summary judgment was granted in this retaliatory discharge case. Ronald Eaves, appellant, was injured while working for appellee, CooperHeat-MQS, when a pair of pliers fell 161 feet, striking Eaves on his hard hat. Eaves was terminated some months later, about the time he filed a workers= compensation claim. In four issues, Eaves challenges the trial court=s summary judgment. We will affirm in part, and reverse and remand in part.

Background

In April 1998, Eaves was working for CooperHeat at the Mobil Chemical site in Beaumont. An Anderson Scaffolding employee dropped a pair of Klein=s pliers which struck Eaves on his head B fortunately protected by a hard hat. Eaves blacked out momentarily but did not seek medical attention for some time. Eaves alleges he was instructed by CooperHeat to see Anderson=s doctor and that CooperHeat had no doctor. Eaves saw a doctor in June 1998, but continued working until pain prevented him. Sometime in August, Eaves stopped working for CooperHeat, and he was forced to use up his sick and vacation time. Appellant was terminated in February 1999 for alleged Ajob abandonment.@

In December 1998, appellee CooperHeat, first filed an employer=s first notice of injury with the wrong insurance carrier. This error was later corrected. Appellant first filed a claim the same day he was terminated. Other facts will be developed as necessary in our review.

Appellant asserts four issues. He argues the trial court erred in granting summary judgment on the retaliatory discharge claim because: 1.) he raised a genuine issue of fact on each element; 2.) CooperHeat offered no legitimate non-discriminatory reason for the discharge; and 3.) it implicitly found Eaves was unable to work. In his fourth issue, appellant contends the summary judgment was erroneously granted on his conspiracy to defraud and fraud claims against CooperHeat and its employee-manager, Geri Chapman.[2] Because the first three issues are interrelated, we will treat them together.

Standard of Review

We review the trial court's granting of a motion for summary judgment de novo. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994); Texas Commerce Bank Rio Grande Valley v. Correa, 28 S.W.3d 723, 726 (Tex. App. Corpus Christi 2000, pet. denied). Appellee was required to establish that no genuine issue of material fact existed and that judgment should be granted as a matter of law. Tex. R. Civ. P. 166a(c);[3] Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex. 1985). We presume all evidence favorable to appellant to be true, and indulge all reasonable inferences and resolve any doubts in his favor. Id. 548 49

Analysis

The elements of retaliatory discharge are set out in the Labor Code. Tex. Lab. Code Ann. ' 451.001 (Vernon 1996). An employer may not discharge or in any manner discriminate against an employee because the employee has filed a workers= compensation claim in good faith, hired a lawyer to represent him in a claim, instituted in good faith a proceeding under Subtitle A, or testified or be about to testify in a proceeding under Subtitle A. Id. Appellee does not dispute the fact that it, (as employer), filed a notice of injury. Nor does it dispute Eaves filed a workers= compensation claim, in good faith. Rather, the material issue is whether Eaves was fired because of the workers= compensation claim. Both parties cite Texas Division Tranter, Inc. v. Carrozza, 876 S.W.2d 312 (Tex. 1994). There, the employee offered no evidence challenging the employer=s explanation that he was terminated solely for violating the three day absence rule. Id. at 313-314. The Supreme Court held that, absent such controverting evidence, summary judgment was proper, given the employee did not deny he violated the rule. Id. The Supreme Court also instructs us that the standard of causation in whistleblower and retaliatory discharge cases should be that the employee's protected conduct must be such that, without it, the employer's prohibited conduct would not have occurred when it did. Continental Coffee Products Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996).

Appellant concedes there is no direct evidence of retaliatory discharge and instead relies upon circumstantial evidence. Some of the circumstantial evidence factors that sufficiently establish a causal link between termination and filing a compensation claim include: (1) knowledge of the compensation claim by those making the decision on termination; (2) expression of a negative attitude toward the employee's injured condition; (3) failure to adhere to established company policies; (4) discriminatory treatment in comparison to similarly situated employees; and (5) evidence that the stated reason for the discharge was false. Id. at 451 (citing Palmer v. Miller Brewing Co., 852 S.W.2d 57, 61 (Tex. App. Fort Worth 1993, writ denied); Investment Properties Management, Inc. v. Montes, 821 S.W.2d 691, 694-95 (Tex. App. El Paso 1991, no writ); Paragon Hotel Corp. v. Ramirez, 783 S.W.2d 654, 658 (Tex. App. El Paso 1989, writ denied)).

Knowledge of the compensation claim was clearly established. Chapman even expressed concerned about the pending claim. Not only was the claim known, but several factors lead to an inference of a negative attitude toward both the claim being filed and Eaves= injured condition. First, appellant was told to file a claim with Anderson rather than CooperHeat. Next, he was sent to his own private physician for the stated reason CooperHeat had no doctor. Even after seeing his own doctor, appellee told Eaves to send the medical bills to Anderson. When that failed, Eaves was told to use group coverage, not workers= compensation. Eight months after the accident, CooperHeat initially filed for worker=s compensation coverage with the wrong carrier, further delaying again the filing for months with the correct carrier. In other words, CooperHeat actively deflected the claim away from its workers= comp carrier, first to Anderson, second to the group carrier, third to the wrong comp carrier, and finally, almost a year later, to the correct comp carrier. Although Eaves avers he checked with CooperHeat on his worker=s compensation status, Geri Chapman continued to insist it was Anderson=s responsibility and he would be receiving benefits soon. Eaves exhausted his sick and vacation time, used up his 401k, but never received any benefits. In fact, the claim was denied, coincidentally, days before his termination.

Appellant further supports his claim circumstantially, by alleging that CooperHeat Awas trying to become certified ISO 9000" and instructed employees it wanted no lost time accidents, or lost work time for on-the-job injuries. Not until after Eaves contacted a lawyer in November 1998, did CooperHeat file the required notice of injury in December 1998. Only through his lawyer did appellant learn his claim was not initially filed with the proper insurance carrier and he that would receive no benefits.

With regard to the third circumstantial element, failure to adhere to company policy, we observe the testimony of Geri Chapman. She relates that Eaves was terminated because of Ajob abandonment.@ This order for termination apparently originated with Chapman=s supervisor, Lori Henderson. Chapman admitted the company was concerned about the workers= compensation claim and could not fire him while it was pending. Upon receiving word the claim was denied, he was terminated for abandonment because it was claimed the office had not heard from appellant in several months. This statement is disputed by Eaves, who, by sworn statement, stated he sent the company multiple medical reports, and that he spoke with the company at different times.

Notably, Chapman admitted it was Steve Wilson, Eaves= supervisor, who was responsible for a determination of abandonment. Yet Chapman=s testimony contradicts this because she maintained Henderson told her to terminate Eaves. Other than his signature on a pre-printed termination form, there is no summary judgment affidavit or other proof from Wilson. Not only is appellee=s claim of a neutral reason for termination unsupported[4] by clear and unequivocal proof as in Carrozza, it is disputed by appellee. The truth of the stated reason for the job abandonment is questioned, not only because the underlying facts are disputed, but also because proof from Eaves= actual supervisor, said to be the decision maker, is absent. Rather, it would appear, the decision was made by a higher-up on grounds that had nothing to do with abandonment.

Finally, CooperHeat=s company policy does not include a Ajob abandonment@provision. Instead, the written policy provides: Aexcessive time off is frowned upon and will result in disciplinary action from a written warning to termination.@ No written warning was given. The policy further provides: AThe company is more sympathetic with someone who is truly sick and out of work for an extended period of time. In these cases, the illness is out of the hands of the individual and the company can plan and take action to get the work done.@ CooperHeat=s action, if not directly contrary to its written policy, again is inferentially contrary to its written policy. This is the precise claim of Eaves C that he was truly sick and thus out of work for an extended period of time.

The record does not indicate what happened to similarly situated employees other than Eaves= statement that all were discouraged from filing claims.

Finally, some evidence indicates the stated reason for firing was false. Written policies were not followed. The claim of Ajob abandonment@ came from management, not from Eaves=supervisor. The proof showed Eaves= workers= compensation claim was discouraged at every level, including: sending Eaves to Anderson, sending Eaves to his own doctor, filing with the wrong carrier, late filing, promising benefits that never materialized, and terminating him on the day he filed his claim. While Eaves was claiming he was notifying CooperHeat of his medical condition and treatment, CooperHeat denied hearing from Eaves.

CooperHeat was required to establish that there existed no genuine issue of material fact and that judgment should be granted as a matter of law. Tex. R. Civ. P. 166a; Nixon, 690 S.W.2d at 548. We hold that appellee did not establish its non-discriminatory reason for termination as a matter of law. The underlying facts of abandonment were disputed. We must presume all evidence favorable to Eaves to be true, and must indulge all reasonable inferences and resolve any doubts in his favor.[5] Id. at 548 49; see also Michael, 41 S.W.3d at 752; Duhon v. Bone & Joint Physical Therapy Clinics, 947 S.W.2d 316, 318 (Tex. App.--Beaumont, 1997, no pet.).

In his fourth issue, Eaves attacks the summary judgment on his conspiracy to defraud and fraud claims against CooperHeat. Appellee avers, and we agree, that these common law claims are barred as a matter of law. The gravamen of these claims was CooperHeat=s handling of Eaves workers= compensation claim. Tex.Lab.Code Ann. ' 406.034 requires an employee to make an election that he waives coverage under workers= compensation in order to retain his common law and other statutory claims for damages. The summary judgment proof show no such election by Eaves. Indeed, the very proof that supports one element of Eaves retaliatory discharge cause of action -- the fact that a workers= compensation claim was made -- defeats his common law causes of action for conspiracy to defraud or fraud. Id. Appellant cites no basis in law for him to maintain both a workers= compensation claim and a common law fraud claim against his employer for the same incident. We hold the plain wording of the workers= compensation statute proscribes these common law causes of action. See id.

We affirm the summary judgment on Eaves= common law claims of conspiracy to defraud and fraud as to CooperHeat.[6] We reverse and remand only the portion of the summary judgment addressing Eaves= retaliatory discharge claim against appellee for further proceedings consistent with this opinion.

_____________________________

DON WITTIG

Justice

Do not publish.

Tex. R. App. P.47.3.

Opinion delivered and filed

this 9th day of May, 2002.

[1]Retired Justice Don Wittig assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov=t Code Ann. '74.003 (Vernon 1998).

[2] Chapman is individually named in the claims of conspiracy. However, as appellee points out, appellant only designated for appeal, the final severed summary judgment against CooperHeat. Therefore, we do not directly address any issue as to Chapman and there is only one appellee in this appeal.

[3] Appellant incorrectly states appellee presented a Ano evidence@ motion for summary judgment. Our review in indicates the motion was under the senior rule 166a(c), not the newer Tex. R. Civ. P. 166a(i). In any event, we have held if the motion fails to clearly state under which rule summary judgment is sought, and fails to follow rule 166a(i) precisely by identifying the particular elements in dispute, and attaches evidence that would be appropriate for a traditional motion, it will be treated as a traditional motion for summary judgment. Michael v. Dyke, 41 S.W.3d 746, 752 (Tex. App.- Corpus Christi 2001, no pet.).

[4] Appelleealso filed an affidavit from a vice president that appellant violated company policy which was grounds for termination. Such proof is conclusory and is no evidence. Appellee also argues on appeal that Eaves was unable to work and that was an independent grounds for termination. However, that argument was not made or supported in the motion for summary judgment and thus cannot be a grounds to sustain the judgment on appeal.

[5] In its letter ruling of October 3, 2000, the trial court initially ruled all of appellant=s common law and contract claims were barred by the exclusive remedy provision of the workers= compensation statute. He also correctly ruled that the retaliatory discharge claim did not merit summary judgment. Either the judgment did not correctly reflect the trial court=s ruling or he was persuaded by subsequent rehearing. Neither party informed this court of that aspect of the procedural history. We also note that because appellant did not challenge the trial court=s rulings on contract or other common law claims, those rulings are also affirmed.

[6] See footnote 5.