Court of Appeals of Texas, Houston (1st Dist.).
Carl MASSEY, Appellant,
v.
U-HAUL COMPANY OF TEXAS and Robert Vespa, Appellees.
No. 01-97-01422-CV.
|
Aug. 31, 1999.
Justices COHEN, HEDGES, and TAFT.
OPINION
TAFT.
*1 This appeal stems from an employment dispute. Appellant, Carl Massey, filed suit against appellees U-Haul Company of Texas, his employer, and Robert Vespa, one of Massey’s supervisors. Massey sought to recover damages based upon claims of retaliatory discharge and intentional infliction of emotional distress. The trial court granted summary judgment in favor of U-Haul and Vespa. We address whether the trial court erred when it granted U-Haul and Vespa’s motion for summary judgment as to Massey’s claims for retaliatory discharge, and intentional infliction of emotional distress. We affirm in part and reverse in part.
Facts and Procedural History
In June 1985, U-Haul hired Massey to serve as a customer service representative. In 1992, U-Haul promoted Massey to general manager of its North Shore location. In January 1995, Massey was severely beaten during a robbery of his store. As a result, Massey was hospitalized. During his hospital stay, Massey’s supervisor filed a workers’ compensation claim on behalf of Massey.
In February 1996, approximately 13 months after the robbery, Massey returned to work at U-Haul. When Massey informed his supervisor, Lynn Buck, that he wished to return to work, she explained that there were no general manager positions available at that time. Buck told Massey that the only available opening was as a customer service representative.
The events leading to Massey’s discharge were a series of disputes between Massey and Vespa, the assistant to the president of U-Haul’s marketing company. The confrontations concerned an earring Massey wore while at work. On two occasions, Vespa told Massey to remove the earring. On the first occasion, Massey refused. On the second occasion, Vespa gave Massey the choice of removing the earring or “leaving.” Massey chose to leave and was discharged for insubordination. Massey sued U-Haul and Vespa alleging that U-Haul, through its agent Vespa, had discharged Massey as retaliation for Massey’s filing of a workers’ compensation claim and had intentionally inflicted emotional distress on Massey by demoting him, requiring him to train assistant managers, lying to him, treating him differently than other employees, and discharging him for filing a workers’ compensation claim.
U-Haul and Vespa filed a joint motion for summary judgment alleging they could conclusively negate the causation element of Massey’s retaliatory discharge claim, and the “extreme and outrageous” element of his intentional infliction of emotional distress claim. The trial court granted U-Haul and Vespa’s motion as to both of Massey’s claims.
Standard of Review
When reviewing a trial court’s granting of a defendant’s motion for summary judgment that claims to conclusively negate one of the essential elements of the plaintiff’s cause of action, we apply the usual standard of review. See Randall’s Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995) (“A defendant who conclusively negates at least one of the essential elements of a cause of action is entitled to summary judgment as to that cause of action.”); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985) (stating that we must accept as true evidence favorable to the nonmovant, indulge every reasonable inference in the nonmovant’s favor, and resolve all doubts in the nonmovant’s favor).
Retaliatory Discharge
*2 In Massey’s first point of error, he complains the trial court erred when it granted summary judgment as to his retaliatory discharge cause of action.
A. Applicable Law
Massey sued U-Haul for wrongful discharge pursuant to section 451.001 of the Texas Labor Code. This section provides that an employer may not discharge or in any other manner discriminate against an employee based upon the employee having performed any one of the following activities:
(1) filed a workers’ compensation claim in good faith;
(2) hired a lawyer to represent him in a claim;
(3) instituted or caused to be instituted in good faith a proceeding under Subtitle A; or
(4) have testified or be about to testify in a proceeding under Subtitle A.
Tex.Labor Code Ann. § 451.001 (Vernon 1996). Massey did the first three.
To recover pursuant to section 451.001, one of the elements an employee must prove is that there was a causal connection between the employee’s discharge and the employee’s engaging in conduct protected by section 451.001. Terry v. Southern Floral Co., 927 S.W.2d 254, 257 (Tex.App.-Houston [1st Dist.] 1996, no writ). To prove this causation element, the employee is not required to demonstrate that the filing of the workers’ compensation claim was the sole cause of the discharge. Id. However, the employee must demonstrate that the filing of the claim was at least a determining factor in the discharge. Id. An employee can accomplish this by proving that if the employee had not filed the claim, discharge would not have occurred when it did. Continental Coffee Prods. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996). Circumstantial evidence sufficient to establish a causal link between termination and filing a compensation claim includes:
(1) the persons who made the decision to terminate the employee knew that the employee filed a claim;
(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;
(5) evidence that the stated reason for the discharge was false.
Id. at 451.
In U-Haul and Vespa’s motion for summary judgment, they attacked the causation element of Massey’s cause of action by alleging that Massey could not produce evidence to satisfy any of the five forms of circumstantial evidence of causation that were established in Cazarez, and that therefore Massey could not establish a causal link between his termination and his workers’ compensation claim. By relying on Massey’s lack of evidence, U-Haul and Vespa were asserting the equivalent of a no-evidence motion for summary judgment. However, while U-Haul and Vespa filed their motion on July 28, 1997, the no-evidence summary judgment rule did not become effective until September 1997. See Tex.R.Civ.P. 166a(i). Therefore, their no-evidence assertion was not a proper basis for granting summary judgment. Accordingly, we reject this argument.
*3 U-Haul and Vespa’s second claim was that they conclusively negated Massey’s causation element by establishing a legitimate, nondiscriminatory reason for discharging him. An employer is entitled to summary judgment on an employee’s section 451.001 retaliatory discharge claim if the employer’s summary judgment evidence conclusively negates the employee’s causation element. See Texas Division-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 313-14 (Tex.1994). To negate this element, the employer must establish a legitimate, nondiscriminatory reason for discharging the employee. Id. However, even if an employer produces evidence of a legitimate, nondiscriminatory reason for the employee’s discharge, the employee can still prevent summary judgment by producing evidence controverting the employer’s alleged legitimate, nondiscriminatory reason. Id.
B. U-Haul and Vespa’s Legitimate, Nondiscriminatory Reason for Discharge
In U-Haul and Vespa’s motion for summary judgment, they alleged that Massey’s insubordination provided them with a legitimate, nondiscriminatory reason for discharging Massey: when Massey’s superior, Vespa, ordered Massey to remove his earring, Massey refused. Furthermore, when Vespa gave Massey the option of either removing his earring or leaving, Massey walked away and was immediately discharged for insubordination.
U-Haul relied on testimony by Massey and Vespa. Vespa testified that the “Welcome Aboard Packet” given to employees gave Vespa authority to dictate personal appearance standards, and beginning January 1, 1996, Vespa established a policy forbidding male employees from wearing earrings at work.
On October 15, 1996, Vespa noticed Massey wearing an earring and instructed Massey to remove the earring. Massey testified he refused. On November 1, 1996, Vespa again told Massey to remove the earring. Massey’s deposition testimony reflects the following version of what occurred next:
I said, “Robert, why do I need to take out my earring?” He say [sic], “You either take out the earring or leave?” I say [sic], “Robert, you firing me?” He said, “You either take out the earring or leave.” And I just-for a second I paused. But I got up and I walked out and I stood by the garage. And I come back in and I asked Robert did I need to sign anything, you know, since he was terminating me. And he told me he need [sic] to do this for his paperwork. So I-I left. I went in front and as I was walking out, I heard him tell Mary, “Insubordination.” And I went to tell Lisa that I had been terminated.
We hold that U-Haul and Vespa’s summary judgment evidence was sufficient to establish a legitimate, nondiscriminatory reason for Vespa’s discharging of Massey.
C. Massey’s Response
*4 In Massey’s response, he asserted a genuine issue of fact existed concerning whether Vespa had a legitimate, nondiscriminatory reason for terminating Massey. To support this assertion, Massey presented evidence that before Vespa terminated Massey, Vespa knew Massey had filed a workers’ compensation claim; that U-Haul treated Massey differently after he was injured; that U-Haul did not have a company earring policy, and even if it did, it selectively enforced it against Massey; and that when Vespa discharged Massey, Vespa did not follow U-Haul’s progressive discipline policy, and to cover up this failure, Vespa had Massey’s former supervisors create memorandums concerning Massey’s performance.
1. Vespa’s Knowledge
In U-Haul and Vespa’s motion, they acknowledge it is undisputed that, when Vespa terminated Massey, Vespa knew Massey had filed a workers’ compensation claim.
2. Postinjury Treatment
U-Haul executive Lance Brumfield testified that before Massey was injured, he worked for U-Haul for more than a decade, during which time he was promoted to general manager, was considered a loyal employee who performed above average work, and was the kind of manager U-Haul wanted in its stores. Massey testified that, after he returned from the hospital, U-Haul repeatedly told him that there were no manager positions available, despite the existence of at least 12 openings for managers between February 15 and October 31, 1996. Furthermore, when Massey returned, he was paid a lower wage and was assigned to train other U-Haul employees for general manager positions, despite the fact that in some instances, those other employees had far less experience than Massey and, in other instances they had no experience. After Massey returned from the hospital, he was also paid a lower salary.
3. U-Haul’s Application of Its Earring Policy
Warren Jones, a general manager for U-Haul, testified that when he was a customer service representative, he was counseled by Buck to remove his earring at work. Jones had worn his earring at work for one year before being counseled. Jones was never “written up” for the earring. Buck told Jones that if he wanted to become a manager, he would have to remove his earring, but she said that “it really wasn’t company policy” to do so. Jones was later promoted to general manager. Jones knew of no U-Haul employee who had ever been written up or fired for wearing an earring. Although once Jones became a general manager, he prohibited earrings at his store, he knew of no “specific policy that says we can’t wear an earring.” It is undisputed that there is no such written policy.
Ken Charles, a U-Haul general manager, testified that Vespa twice told him to remove his earring. On both occasions, Charles complied. On one occasion, Vespa told Charles to remove the earring or be fired. Despite these incidents, Charles was promoted to general manager. Like Jones, however, Charles knew of no one who had ever been written up or fired for wearing an earring, and, like Jones, he asserted “it’s not company policy” to avoid wearing earrings, although he tells his employees not to do so.
*5 U-Haul’s president of Houston operations, Lance Brumfield, testified he had never fired anyone for wearing an earring. An office clerk in U-Haul’s downtown Houston office, Jerry Reyna, testified she had never heard of or seen paperwork concerning a written warning or discharge for wearing an earring. This was consistent with Jones’s and Charles’s testimony; they also did not know of any U-Haul who was being given a written warning or discharged for wearing an earring.
4. Progressive Disciplinary Policy and Vespa’s Padding of Massey’s File
Massey attached evidence showing that although U-Haul had a progressive discipline policy, Massey was fired without receiving a written counseling notice for the earring or for the insubordination. Massey asserts that after Vespa terminated Massey, Vespa sought to remedy his failure to follow policy by placing memorandums in Massey’s file, from Massey’s former supervisors.
In December 1996, more than one month after Massey was fired, Mary Dymock, Massey’s former supervisor, wrote a memorandum to Vespa concerning Massey’s performance while under her supervision. Vespa testified he did not recall requesting the memorandum, and was “pretty sure” he had not. However, he did not have an explanation as to why such an evaluation would have been conducted at that late date, unless “someone” requested it.
During the same time period, another one of Massey’s former supervisors, Sharon Harvey, also wrote a memorandum to Vespa concerning Massey’s performance, while under her supervision. In Harvey’s memorandum, she gave a negative evaluation of Massey’s performance. Vespa testified he did not recall requesting this memorandum either. However, Harvey testified that Vespa ordered her to create the memorandum.
Viewing all of the evidence discussed above in the light most favorable to Massey, we conclude Massey raised a genuine issue of fact as to whether insubordination was the true reason why U-Haul, through Vespa, discharged Massey. Therefore, the trial court erred when it granted U-Haul and Vespa summary judgment as to Massey’s claim of retaliatory discharge.
We sustain Massey’s first point of error.
Infliction of Emotional Distress Allegations
In Massey’s second point of error, he complains the trial court erred when it granted summary judgment on his claim of intentional infliction of emotional distress. The elements of a claim of intentional infliction of emotional distress are that the defendant intentionally or recklessly engaged in conduct that was extreme and outrageous, which caused the plaintiff severe emotional distress. Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex.1993). U-Haul and Vespa’s motion attacked the “extreme and outrageous” element of Massey’s claim. Whether a defendant’s conduct rises to the level of extreme and outrageous is a question of law. Natividad v. Alexis, Inc., 875 S.W.2d 695, 699 (Tex.1994).
*6 Massey alleged the following conduct by U-Haul was extreme and outrageous:
(1) it demoted Massey from general manager to customer service representative;
(2) it lied to Massey by telling him he would be “the number one candidate” for a general manager position when one came available, despite the fact that, at that time, U-Haul had openings for general managers at 14 locations;
(3) it treated Massey differently than another general manager, Sharon Harvey, who was hospitalized by holding Harvey’s U-Haul location for three months, while she was on hospital leave, but only holding Massey’s location for two months; and
(4) it discharged Massey based upon his filing of a workers’ compensation claim.
Conduct is extreme and outrageous only if it is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency and be regarded as atrocious and utterly intolerable in a civilized community. Id. U-Haul’s conduct does not rise to this level. Worse conduct is required in the employment setting. See cases collected in Wornick v. Casas, 856 S.W.2d 732, 735-36 (Tex.1993). Discharge alone is insufficient, id. at 735, even if the discharge is illegal. Sebesta v. Kent Electronics Corp., 886 S.W.2d 459, 462-63 (Tex.App.-Houston [1st Dist.] 1994, writ denied). Moreover, in the employment context, a claim for emotional distress will not lie for “mere employment disputes.” Johnson v. Randall’s Food Markets, 869 S.W.2d 390, 397 (Tex.App.-Houston [1st Dist.] 1993), rev’d in part on other grounds, 891 S.W.2d 640 (Tex.1995); accord Johnson v. Merrell Dow Pharm. Inc., 965 F.2d 31, 33 (5th Cir.1992). We conclude the trial court did not err in concluding, as a matter of law, that U-Haul’s conduct did not meet this high and difficult standard.
We overrule Massey’s second point of error.
Conclusion
We affirm the portion of the trial court’s judgment in which it granted summary judgment to U-Haul and Vespa as to Massey’s claim for intentional infliction of emotional distress. We reverse the portion of the trial court’s judgment in which it granted summary judgment to U-Haul and Vespa as to Massey’s claim for retaliatory discharge, and we remand to the trial court that cause of action.