Court of Appeals of Texas, Beaumont.

Susan COOPER as Independent Executrix of the Estate of Bill W. Cooper, Appellant,

v.

Aubrey T. RAIFORD, Individually and d/b/a Raiford Buick GMC Trucks, Energy Country Auto Mall, Energy Country Motors, and Energy Country Ford-Lincoln-Mercury, and Highway 69, Inc., Appellees.

No. 09-93-161 CV.

|

Sept. 29, 1994.

OPINION

WALKER.

*1 This appeal results from an underlying lawsuit alleging wrongful termination, intentional infliction of emotional distress, and negligent infliction of emotional distress, wherein Bill Cooper, now deceased, contended by Original Petition that he was an employee of defendants and that on April 23, 1991, defendants terminated Cooper from employment for filing a workers compensation claim. Appellant has not contested the trial court’s dismissal of the negligent infliction of emotional distress claim, therefore, this Court affirms outright, the trial court’s summary judgment in that regard.¹

Subsequent to Mr. Cooper’s filing suit, Mr. Cooper gave his deposition on July 19, 1991. On October 7, 1991, Mr. Cooper died. Thereafter, defendants filed their motion for summary judgment and supplements thereto. On March 26, 1993, plaintiff, now appellant, filed Plaintiff’s Response to Defendants’ Motion for Summary Judgment, attaching thereto the deposition of Mr. Cooper in its entirety.

Appellee now says that appellant’s supplemental response setting forth only eight (8) pages of Mr. Cooper’s deposition somehow restricts appellant’s response only to those matters covered in those selected pages. Again, Mr. Cooper’s entire deposition was before the trial court via plaintiff’s response to defendants’ motion for summary judgment. We find no objection by appellee that plaintiff’s attaching the deposition failed to comply with Tex.R. Civ. P. 166a(d), which requires: “a notice containing specific references”. Plaintiff’s response to defendants’ motion for summary judgment contains the following language: “Plaintiff now submits that the Defendants have failed to meet their burden, and that clear questions of fact remain, as evidenced by the deposition of Bill Cooper, a copy of which is attached hereto, as Exhibit “A” in its entirety.” (Emphasis ours). We conclude that for summary judgment purposes, the trial court had before it the complete deposition of Bill Cooper.

On April 29, 1993, the trial court granted the defendants’ motion for summary judgment effectively dismissing all of plaintiff’s causes of action. This appeal followed.

Appellant brings to this Court only one point of error which contends that the trial court erred in granting defendants’ motion for summary judgment. The order of the trial court does not specify the grounds upon which summary judgment was granted.

Summary judgment for a defendant, disposing of the entire case, is proper only if, as a matter of law, plaintiff could not succeed upon any theories pleaded. Einhorn v. LaChance, 823 S.W.2d 405 (Tex.App.-Houston [1st Dist.] 1992, writ dism’d w.o.j.); Owen Electric Supply, Inc. v. Brite Day Construction, Inc., 821 S.W.2d 283 (Tex.App.-Houston [1st Dist.] 1991, writ denied).

Appellant’s viable theories of recovery below were wrongful termination of employment in violation of Article 8307c of the Texas Workers Compensation Act and intentional infliction of emotional distress. Appellant sought recovery against Aubrey T. Raiford, individually and d/b/a Raiford Buick GMC Trucks, Energy Country Auto Mall, Energy Country Motors, and Energy Country Ford-Lincoln-Mercury, and Highway 69, Inc. Uncontroverted summary judgment evidence through affidavit of Aubrey T. Raiford establishes that at the time Mr. Cooper’s employment was terminated he was an employee of Raiford Buick GMC Trucks only. Appellant failed to raise or produce contrary evidence, therefore we affirm the trial court’s granting of summary judgment in favor of Highway 69, Inc.

*2 Factually, in June 1990, Mr. Cooper, now deceased, suffered injuries when he fell out of a new car sales tower. Subsequently, according to Mr. Cooper’s deposition, Mr. Raiford sought to have Cooper sign a release of his workers compensation claim. Mr. Cooper testified as follows:

Q And did you have any conversation after that with Mr. Raiford about whether or not that was related to what happened to you in Beaumont or what happened to you in Port Arthur? What happened with Mr. Raiford about that?

A Mr. Raiford had found out that I had filed-He had the same workman’s comp company that Heritage had, and they had sent a claim out to Energy Country.

So, Mr. Raiford typed a letter up. He brought it up to the sales tower one day that said I would release Energy Country from any damage that I had received from the fall out of the tower and that I would not file a workman’s comp, you know, through Energy Country and that I would pay for it under my own insurance program, which was a 500-dollar deductible.

And I refused to sign the letter.

Q Was Mr. Raiford upset about that?

A Yes, sir, he was.

Q Explain to the jury what he told you about it, what he said.

A He told me that he just didn’t believe in employees signing for workman’s comp and that he would be very disappointed to employ a manager that would file for workman’s comp working for him.

And I tried to explain to him that it wasn’t a workman’s comp claim against him. It would be against Heritage because it was part of a previous accident and that my back had gone out and my back was noted with the workman’s comp deal.

Q Did you ever threaten or indicate to Mr. Raiford that you were going to file on his workman’s comp?

A No, sir, I didn’t.

Q In fact, to the contrary, did you tell him that you were not filing on his comp, that you felt like it was related to this old injury that you had in the automobile accident?

A I did tell him that, sir. I certainly did.

We are now put to the question of whether the motion for summary judgment of Aubrey T. Raiford, individually and d/b/a Raiford Buick GMC Trucks, exhausted, as a matter of law, all questions relating to Cooper’s claim for wrongful termination and intentional infliction of emotional distress.

The litany common to all summary judgment proceedings on appeal provides that a summary judgment will be affirmed if the summary judgment proof establishes a right thereto as a matter of law. See Landry v. First National Bank in George West, 814 S.W.2d 86 (Tex.App.-Corpus Christi 1991, writ denied). The proper standard for appellate review in summary judgment matters takes favorable to the non-movant as true and indulges every reasonable inference in favor of the non-movant. Nixon v. Mr. Property Management Co., 690 S.W.2d 546 (Tex.1985).

It is clear that as a matter of law Mr. Cooper was an employee of Raiford Buick GMC Trucks. Our present question is whether there exists a question of fact as to appellant’s claim for wrongful discharge and intentional infliction of emotional distress against Aubrey T. Raiford, d/b/a Raiford Buick GMC Trucks.

WRONGFUL DISCHARGE

*3 Tex.Rev.Civ. Stat. Ann. art. 8307c (Vernon Supp.1991)², in effect, prohibits an employer from discharging an employee because the employee has initiated a claim for workers compensation. Article 8307c provides an exception to the Texas At Will Employment Doctrine which provides that either the employer or the employee may terminate the employment relationship at any time for any reason. See Maus v. National Living Centers, Inc., 633 S.W.2d 674 (Tex.App.-Austin 1982, writ ref’d n.r.e.). Article 8307c places the burden of proof for such retaliation claim with the employee. In the trial of an 8307c suit, the plaintiff must establish a causal link between the employee’s claim for workers compensation and his dismissal. See Luna v. Daniel Intern. Corp., 683 S.W.2d 800 (Tex.App.-Corpus Christi 1984, no writ); Hughes Tool Co. v. Richards, 624 S.W.2d 598 (Tex.Civ.App.-Houston [14th Dist.] 1981, writ ref’d n.r.e.), cert. denied, 456 U.S. 991, 73 L.Ed.2d 1286, 102 S.Ct. 2272 (1982).

It is clear that in most cases involving allegations of wrongful discharge for filing workers compensation claims, a plaintiff must seek proof through circumstantial evidence and reasonable inferences generated therefrom. Paragon Hotel Corp. v. Ramirez, 783 S.W.2d 654 (Tex.App.-El Paso 1989, writ denied); Hunt v. Van Der Horst Corp., 711 S.W.2d 77 (Tex.App.-Dallas 1986, no writ). Being aware that successful pursuit of most wrongful discharge cases delves into the motive or motives of an employer for dismissing an employee, Texas courts provide that a plaintiff need only prove that his/her filing of a compensation claim was a reason for the discharge. See Azar Nut Co. v. Caille, 720 S.W.2d 685 (Tex.App.-El Paso 1986), aff’d, 734 S.W.2d 667 (Tex.1987). It is not incumbent upon a plaintiff in wrongful discharge cases to prove that the filing of the claim was the sole cause for the dismissal. See General Electric Co. v. Kunze, 747 S.W.2d 826 (Tex.App.-Waco 1987, writ denied); Santex, Inc. v. Cunningham, 618 S.W.2d 557 (Tex.Civ.App.-Waco 1981, no writ).

Where plaintiff establishes a causal link between the filing of a workers compensation claim and plaintiff employee’s subsequent dismissal, the burden of proof then shifts to the employer to prove a non-retaliatory, non-pretextual motive for the discharge. See Hughes Tool Co., 624 S.W.2d at 599. It then becomes incumbent upon an employer to demonstrate not only that a legitimate reason existed for discharging the employee, but further that the employees filing of a workers compensation claim had no causal relationship to the discharge decision. See Santex, Inc., 618 S.W.2d at 559.

At common law, it is an exception to the “At Will Employment Doctrine” to discharge an employee for refusal to commit an illegal act. Sabine Pilot Service, Inc. v. Hauck, 687 S.W.2d 733 (Tex.1985). In our present case, appellant asks this Court to create yet another common law exception to the Employment At Will Doctrine. Appellant recognizes that the present factual circumstances do not fall literally within the exception created by Sabine Pilot but contends that there is sufficient evidence in the record to at least create a fact issue as to whether or not the cancer of Bill Cooper was a causal factor in his termination from employment. Appellant, in support of her request for expanding exception to the “At Will Employment Doctrine” contends that had Mr. Cooper’s termination occurred subsequent to July 26, 1992, the effective date of the Americans With Disabilities Act, 42 U.S.C. § 12101 et. seq., that clearly Mr. Cooper would have had a claim for discrimination under Federal law. Appellant further contends that public policy, underlying the creation adoption and enactment of the Americans With Disabilities Act, looks with disfavor upon an employer discriminating against employees with disabilities, including employees who suffer from cancer.

*4 This Court refuses appellant’s urgings to create yet another exception to the Texas Employment “At Will” Doctrine. Cold-hearted though it may seem and be, our sympathy for Mr. Cooper’s terminal illness must play no part in this Court’s decision. We therefore refuse appellant’s plea for creation of an additional exception to our Employment “At Will” Doctrine.

The evidence before the trial court makes clear that Mr. Cooper received an injury on the job while in the employment of appellant. Mr. Cooper’s deposition clearly represents that he was discouraged with respect to filing a claim under the workers compensation statute. We believe and hold, in viewing the record in its entirety, there exists a genuine issue of material fact as to whether or not Mr. Cooper’s dismissal related back to the filing of his workers compensation claim. Article 8307c requires only that an employee established that “a cause” of termination related to the employees pursuit of benefits under the workers compensation act. Mr. Cooper’s deposition testimony is sufficient to raise a fact issue in this regard requiring a reversal and remand of this appeal for trial on the merits.

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

Appellee contends that summary judgment evidence established as a matter of law that there was no genuine issue of material fact which would allow plaintiff to maintain a cause of action for intentional infliction of emotional distress.

In proving a claim for intentional infliction of emotional distress, a plaintiff is required to preponderate evidence on four elements: (1) that the defendant acted intentionally or recklessly; (2) the conduct was extreme and outrageous; (3) the actions of the defendant caused the plaintiff emotional distress; and, (4) the emotional distress suffered by plaintiff was severe. See Tidelands Auto. Club v. Walters, 699 S.W.2d 939 (Tex.App.-Beaumont 1985, writ ref’d n.r.e.); Havens v. Tomball Community Hospital, 793 S.W.2d 690 (Tex.App.-Houston [1st Dist.] 1990, writ denied).

Texas law is clear that termination of employment in and of itself does not give rise to a claim for intentional infliction of emotional distress. Fiorenza v. First City Bank-Central, 710 F.Supp. 1104 (E.D. Tex.1988); McClendon v. Ingersoll-Rand Company, 757 S.W.2d 816 (Tex.App.-Houston [14th Dist.] 1988), rev’d on other grounds, 779 S.W.2d 69 (Tex.1989); rev’d on other grounds, 498 U.S. 133, 112 L.Ed.2d 474, 111 S.Ct. 478 (1990).

Here we must separate and distinguish appellant’s wrongful discharge claim from her claim for intentional infliction of emotional distress. See Havens, 793 S.W.2d at 692. Such distinction however, should not suggest that intentional infliction of emotional distress claims may not originate out of an employment scenario. See Bushell v. Dean, 781 S.W.2d 652 (Tex.App.-Austin 1989), rev’d on other grounds, 803 S.W.2d 711 (Tex.1991); Dean v. Ford Motor Credit Co., 885 F.2d 300 (5th Cir.1989).

*5 Appellant, in support of her contention that a viable cause of action for intentional infliction of emotional distress exists, relies upon the testimony of Mr. Cooper as provided on pages 53-60 of his deposition. Our review of this proffered testimony leads this Court to the conclusion that appellant’s claim for intentional infliction of emotional distress was properly summarily dismissed by the trial court. Nothing contained in these eight pages of testimony presents evidence of extreme or outrageous conduct. Regarding Mr. Cooper’s dismissal, we recite the following:

[By Plaintiff] So, I went back into Patty’s office; and Mr. Raiford was sitting there. And he looked at me; and he said, Bill, “We are going to have to let you go.”

And I said, “Why?”

And he says, “Well, considering everything, your attitude just hadn’t been right; and you just don’t have the ability to hire good salesmen.”

Q What did you do?

A I said, “Well, thank you very much.”

Whereas the statement “your attitude just hadn’t been right” may be probative to the issue of wrongful discharge under Article 8307c, same falls for short of evidence depicting appellees’ conduct as being extreme or outrageous. We affirm the trial court’s granting of summary judgment as to appellant’s claim for intentional infliction of emotional distress.

AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

	Footnotes
1		Texas does not recognize the tort of negligent infliction of emotional distress. Boyles v. Kerr, 855 S.W.2d 593 (Tex.1993).
2		Repealed Acts 1993, 73rd Leg., ch. 269, § 5(1), 1993 Tex. Gen. Laws 1273 (current version at Tex. Labor Code Ann. § 451.001 (Vernon Pamph.1994)).