Court of Appeals of Texas, Dallas.

Joseph Edward STEVENS, Appellant,

v.

DALLAS MARKET CENTER COMPANY, LTD. d/b/a Infomart and IFM Partnership, Appellee.

No. 05-95-01880-CV.

|

Filed May 1, 1997.

Before Justices OVARD, MORRIS, and JAMES.

OPINION

MORRIS, Justice.

*1 Joseph Edward Stevens appeals a summary judgment granted in favor of the Dallas Market Center Company, Ltd. d/b/a Infomart and IFM Partnership. In five points of error, Stevens contends the trial court erred in granting summary judgment against him on his claim for retaliatory discharge because the Market Center failed to show as a matter of law that: (1) the after-acquired evidence doctrine barred his claims; (2) there was no causal connection between his workers’ compensation claim and his discharge; or (3) he suffered no damages as a result of his discharge. We agree. Accordingly, we reverse the trial court’s judgment and remand the cause for further proceedings.

Factual Background

Stevens was hired by the Market Center in September 1986 to work as a painter. According to Stevens, he was hired without submitting an employment application. When he arrived for his first day of work, his supervisor told him to fill out an application, but “not to worry about it.” In filling out the application, Stevens falsely stated that he had not been convicted of a crime.

In November 1989, Stevens began to suffer health problems caused by exposure to paint fumes. Stevens had developed an allergy to oil-based paints. Due to his health problems, including facial nerve damage, Stevens missed several days of work. According to Stevens, his supervisor ordered him to return to work and told him if he filed a workers’ compensation claim, he would be fired. Stevens returned to work, but continued to suffer problems with paint fumes. It is undisputed that Stevens eventually filed a workers’ compensation claim and was not terminated at that time. There is no evidence in the record, however, indicating when his workers’ compensation claim was filed.

Stevens testified that, due to his condition, he was restricted by his doctors from working around oil-based paints. When Stevens informed his supervisor of this restriction, he was told this was fine. Stevens continued to work using only latex paints.

In October 1991, Stevens received a negative “write up” for not painting some doors with oil-based paint. When Stevens reminded his supervisor of his work restriction, the supervisor allegedly stated that if Stevens would not do the job, “there were a lot of other people who would do it.” Stevens testified that, because of this comment, he tried to work with oil-based paints again, but his allergy continued to be a problem.

Throughout Stevens’s term of employment, he received warnings and poor performance reviews regarding such problems as tardiness, inefficiency, and working on personal projects while on the job. These warnings and reviews occurred both before and after Stevens’s on-the-job injury. Although Stevens’s performance improved for periods of time and his performance reviews reflected this improvement, Stevens would eventually begin incurring reprimands again. Stevens testified he had a problem with tardiness because of personal problems. Stevens further testified, however, that he was never more than five minutes late without calling in.

*2 On December 20, 1991, Stevens informed the Market Center’s director of security that, due to his allergy, he would probably have to seek an employment position away from paint. Approximately an hour later, Stevens reported a fallen telephone pole to the security department. A security officer asked Stevens to show him where the pole had fallen. Afterward Stevens, the security officer, and several other co-workers gathered in a shop area to talk about an up-coming Christmas party and pick numbers for a football pool.

While Stevens and the others were sitting in the shop area, Stevens’s supervisor and the director of security walked in. They asked Stevens to show them the fallen pole. The supervisor then told Stevens to get back to work. According to Stevens, he told his supervisor he had a doctor’s appointment at 1:45 p.m. that day.

At 1:30 p.m., Stevens’s supervisor called Stevens into his office and told him he was being terminated for sleeping on the job. When Stevens said it was a “damn lie,” the supervisor said he was being terminated for using profanity. In its answers to interrogatories, the Market Center stated Stevens was discharged for “failure to be in his workplace at required times, for wasting time and loafing during work hours, and for failing to perform his job duties in a competent and satisfactory manner.” In an affidavit in support of summary judgment, the Market Center’s director of human resources stated that Stevens was terminated “because of his long history of punctuality and work-performance problems” together with the final incident of Stevens being “out of his workplace in violation of supervisory orders….”

Stevens filed suit against the Market Center alleging that his termination was discriminatory and in retaliation for his filing a workers’ compensation claim. The Market Center filed a motion for summary judgment arguing that: (1) Stevens’s claims were barred by the after-acquired evidence doctrine because he lied on his employment application; (2) Stevens suffered no damages as a result of his termination; and (3) there was no “causal link” between Stevens’s workers’ compensation claim and his termination. The trial court granted the motion for summary judgment without stating which ground or grounds it relied upon. This appeal ensued.

Discussion

When a trial court’s order granting summary judgment does not specify the ground or grounds relied on for the ruling, the summary judgment may be affirmed if any of the theories advanced are meritorious. Rogers v. Ricane Enterprises, Inc., 772 S.W.2d 76, 79 (Tex.1989). In this case, each of the three grounds asserted by the Market Center could, if meritorious, support the order of summary judgment independently. In order to succeed on appeal, therefore, Stevens must show why each of the three grounds lacks merit. See Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex.1970) (a summary judgment must stand if it may have been based on a ground not specifically challenged by the appellant).

*3 Stevens first challenges the summary judgment on the basis that it cannot be supported by the after-acquired evidence doctrine. In Jordan v. Johnson Controls, Inc., 881 S.W.2d 363 (Tex.App.-Dallas 1994, writ denied), this Court addressed the application of the after-acquired evidence doctrine to claims for retaliatory discharge under the Workers’ Compensation Act. We concluded that if an employer discovers after terminating an employee that the employee falsified his employment application, this “after-acquired evidence” may bar the employee’s claim for retaliatory discharge. In his second point of error, Stevens asks us to reconsider our decision in Jordan based on a recent opinion by the United States Supreme Court, McKennon v. Nashville Banner Publishing Co., 513 U.S. 352, 115 S.Ct. 879, 130 L.Ed.2d 852 (1995) (after-acquired evidence of wrongdoing that would have resulted in termination does not bar relief under the ADEA in every instance). Such reconsideration is not necessary, however, because we agree with Stevens’s contention under his third point of error that, even under Jordan, the Market Center failed to establish its entitlement to the after-acquired evidence defense as a matter of law.

Under Jordan, the after-acquired evidence doctrine bars a claim for retaliatory discharge brought by an employee who falsified his employment application only where the employer shows either (a) it would not have hired the employee, or (b) it would have fired the employee if it had known about the dishonesty. Jordan, 881 S.W.2d at 369. In this case, Stevens testified he was hired and reported to work before filling out an employment application. It appears, therefore, that the first prong of the Jordan test does not apply.

The Market Center did not present any summary judgment evidence contradicting Stevens’s testimony that he was hired before he submitted his application. The Market Center’s director of human resources testified that the company had a policy against hiring persons with felony records or who falsified information on their employment application. These policies, however, do not show that the decision to hire Stevens was based in any way on the employment application Stevens filled out after he was hired.

The director further testified the company had “withdrawn offers” from other applicants who lied on their applications and had criminal records. The Market Center does not explain the difference between withdrawing an offer and firing an employee, particularly after the employee has reported for work. Without evidence of a difference, it appears to be nothing more than semantics. This testimony, therefore, actually goes to the second prong of the Jordan test: whether the Market Center would have fired Stevens if it had known about his falsified application and criminal record.

*4 In response to the Market Center’s assertion of the after-acquired evidence doctrine, Stevens filed a supplemental petition raising the defenses of waiver and estoppel. Stevens contended the Market Center was aware of his criminal record during his term of employment and, despite this knowledge, continued to employ him. The Market Center bore the burden on summary judgment of disproving this alleged knowledge. If the Market Center was aware of Stevens’s conviction and continued to employ him, it cannot show that Stevens would have been fired for his dishonesty on his employment application. See Jordan, 881 S.W.2d at 369.

The only evidence submitted by the Market Center regarding when it discovered Stevens’s criminal record was the affidavit of the director of human resources. In her affidavit, the director testified she discovered in September 1993 that Stevens had a criminal record which was not reflected in his employment application. While this testimony establishes when the human resources director first knew about Stevens’s dishonesty, it does not conclusively show that the Market Center was unaware of Stevens’s criminal record while Stevens was employed there. Indeed, the Market Center’s security director testified he knew that Stevens had been convicted for marijuana possession. Although the security director did not specify whether he learned about this conviction before or after Stevens was terminated, the Market Center bore the burden of establishing that the “after-acquired evidence” was, in fact, after-acquired. We conclude, therefore, the Market Center failed to meet its burden to show that it lacked knowledge of Stevens’s conviction before his termination and that it would have terminated him if it had known. We sustain Stevens’s third point of error. Because of our disposition of the third point of error, it is unnecessary for us to address Stevens’s second point of error. Tex.R.App.P. 90.

In his fourth point of error, Stevens argues the trial court erred in granting summary judgment on the ground that there was no causal connection between his workers’ compensation claim and his termination. In the Market Center’s motion for summary judgment, it presented evidence that it had a legitimate reason to terminate Stevens. Based on this evidence, the Market Center urged there was no causal link between Stevens’s workers compensation claim and his discharge. After examining this evidence, however, and the evidence presented by Stevens, we conclude a fact issue exists regarding the existence of a causal connection.

Although the Market Center provided extensive evidence of reprimands and warnings issued to Stevens based on his job performance, this evidence does not negate a causal connection as a matter of law. The filing of a workers’ compensation claim need not be the sole motivation for the employer’s termination of an employee in order for the employee to succeed on a retaliatory discharge claim. Continental Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444 (Tex.1996). In this case, Stevens presented evidence that he was told he would be fired if he made a workers’ compensation claim, that he was disciplined for working in accordance with his doctor’s directions, and was given inconsistent reasons for his termination including an apparently false accusation of sleeping on the job. This evidence is sufficient to raise a material issue of fact.

*5 More importantly, we cannot affirm the summary judgment on the ground that there was no causal connection because the Market Center did not present or argue the correct standard of causation in its motion for summary judgment. The Market Center filed its motion for summary judgment on May 11, 1995. Approximately one month later, the Texas Supreme Court issued its opinion in Texas Dep’t of Human Services v. Hinds, 904 S.W.2d 629 (Tex.1995). In Hinds, the court announced that “the standard of causation in whistleblower and similar 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.”¹ Id. at 636 (emphasis added). The Market Center’s motion for summary judgment was heard on September 1, 1995. The Market Center neither amended nor supplemented its motion for summary judgment to apply the Hinds standard to Stevens’s claim for retaliatory discharge. The trial court granted the motion for summary judgment on September 18, 1995.

In December 1996, the supreme court issued an opinion regarding the standard of causation in retaliatory discharge cases. See Continental Coffee, supra. In Continental Coffee, the court made clear that cases for retaliatory discharge under the Workers’ Compensation Act were among those “similar cases” to which the Hinds standard applied. Id. at 450-51. Although the supreme court did not reverse the judgment in Continental Coffee because the wrong causation standard had been applied, the judgment at issue there followed a trial to the court without a jury and there was some evidence to support the finding of causation under either standard. Here, we are reviewing a summary judgment. In a summary judgment proceeding, a movant must show it is entitled to judgment as a matter of law. Necessarily, a movant must rely on and have the court apply the correct standard of causation before the summary judgment proof can establish, as a matter of law, that there is no genuine issue of fact. The Market Center presented and relied on the incorrect standard of causation in its motion for summary judgment. Having relied on the incorrect standard, the Market Center’s evidence is inconclusive to resolve the issue of entitlement to summary judgment under the correct standard.

We sustain Stevens’s fourth point of error. Moreover, we conclude the interests of justice will be best served by allowing the parties, if they choose to do so, to present their respective summary judgment evidence in light of the correct standard of causation announced in Hinds and Continental Coffee.

In his fifth point of error, Stevens argues the trial court erred in concluding that he sustained no damages as a matter of law. In its motion for summary judgment, the Market Center argued that Stevens could not show damages because the evidence proved he was incapable of performing his job. According to the Market Center, because Stevens’s allergies rendered him incapable of working as a painter, he did not suffer any damages as result of being fired from his job as a painter. See Trevino v. Kent County, 936 S.W.2d 488, 493 (Tex.App.-Amarillo 1996, writ requested) (employer is free to deny work to those incapable of performing the job).

*6 Assuming without deciding that the Market Center sufficiently disproved Stevens’s damages for lost wages as a painter, an employee’s recovery for retaliatory discharge is not limited to economic loss alone. See Azar Nut Co. v. Caille, 734 S.W.2d 667, 669 (Tex.1987). An employee may also recover for such damages as mental anguish. Cf. Texas Indus., Inc. v. Vaughan, 919 S.W.2d 798, 801 (Tex.App.-Houston [14th Dist.] 1996, writ denied). Although an employee’s damages may be limited by his inability to perform his original job, the employee need not show that he is capable of performing the duties of the job he had at the time of his injury in order to recover some damages for wrongful discharge. See Schrader v. Artco Bell Corp. 579 S.W.2d 534, 540 (Tex.Civ.App.-Tyler 1979, writ ref’d n.r.e.).

In his petition, Stevens claimed damages for pain, embarrassment, humiliation, and mental anguish. The Market Center’s motion for summary judgment did not attempt to disprove any of these alleged damages. Because the Market Center failed to show that Stevens suffered no damages as a matter of law, we sustain Stevens’s fifth point of error.

Because of our disposition of Stevens’s third, fourth, and fifth points of error, it is unnecessary for us to address his first point of error.² Tex.R.App.P. 90.

We reverse the trial court’s judgment and remand the cause for further proceedings.

	Footnotes
1		Under the Whistleblower Act, it is illegal to terminate an employee for the good faith reporting of a violation of the law. Tex. Gov’t Code Ann. § 554.002 (Vernon 1994 & Supp.1997).
2		In his first point of error, Stevens generally contends the trial court erred in granting the Market Center’s motion for summary judgment. Stevens does not raise any different arguments under this point than are raised under his remaining points of error.