Court of Appeals of Texas,

Dallas.

Rafael FERRER, Jr., Appellant,

v.

RANDALL’S FOOD & DRUGS, INC. d/b/a Tom Thumb Food & Drugs, Inc. d/b/a Tom Thumb Food Stores d/b/a Tom Thumb Food & Drugs, Appellee.

No. 05-01-00070-CV.

|

May 8, 2002.

Before Justices JAMES, O’NEILL, and FRANCIS.

OPINION

Opinion by Justice JAMES.

*1 Appellant Rafael Ferrer, Jr., sued his former employer, Randall’s Food & Drugs, Inc. d/b/a Tom Thumb Food Stores, for discrimination in violation of the Employee Retirement Income Security Act (ERISA) which resulted in his termination. Tom Thumb moved for summary judgment, which the trial court granted. Ferrer brings seven points of error contending the trial court erred in granting summary judgment. We affirm.

Ferrer was employed by Tom Thumb for almost twenty-eight years. On June 2, 1997, Ferrer injured his thumb on the job. He did not miss any work due to the injury and was cleared by his doctor to work at his usual capacity. On August 5, 1997, Ferrer failed to clock out when he left work to go to a doctor’s appointment related to the thumb injury. The next day, August 6, 1997, Ferrer was questioned by his supervisors regarding his absence the prior day. At the conclusion of the interview, the supervisors informed Ferrer he was terminated for failing to clock out and for leaving his workplace without obtaining permission from his supervisor. In early 1998, Ferrer had surgery to repair his injured thumb. The surgery and all Ferrer’s related medical expenses were paid by Tom Thumb’s self-insurance plan.

On August 5, 1999, Ferrer filed a lawsuit claiming Tom Thumb had wrongfully terminated him in retaliation for filing a workers’ compensation claim in violation of section 451.001 of the labor code. A month later, Tom Thumb filed a no-evidence motion for summary judgment showing it was not a subscriber to the workers’ compensation insurance program in Texas. Before the summary judgment hearing, Ferrer timely amended his petition to add allegations Tom Thumb discriminated against him for exercising his rights under Tom Thumb’s employee benefit plan in violation of 29 U.S.C. section 1140 of ERISA. He alleged Tom Thumb is a fiduciary to him and owed him a fiduciary duty to administer the plan for his benefit in accordance with the plan’s governing documents. Ferrer alleged Tom Thumb breached its fiduciary duties to him. As a result, Ferrer was terminated from his employment, and he was unable to obtain the medical care he required and was “deprived of other benefits under the [p]lan.” He sought damages for lost wages, lost benefits, and attorney fees for violation of ERISA.

Tom Thumb’s original motion for summary judgment was granted; however, Ferrer was subsequently granted a new trial, but only on the newly asserted ERISA claim. After discovery, Tom Thumb filed another motion for summary judgment on Ferrer’s remaining ERISA claim. This motion sought summary judgment pursuant to rules 166a(c) and 166a(i). In its motion, Tom Thumb alleges the uncontroverted evidence establishes Ferrer failed to follow the mandatory appeals process for claims of denial of benefits, and Ferrer was terminated for violation of company rules requiring him to clock out when leaving work and to obtain permission to leave the workplace during regular working hours. Additionally, Tom Thumb asserts there is no evidence it terminated Ferrer in order to interfere with his benefits and the evidence conclusively proves Ferrer received all of the ERISA benefits he was entitled to. The trial court granted summary judgment in favor of Tom Thumb dismissing all of Ferrer’s claims without specifying the grounds for its decision. Ferrer appeals the ERISA summary judgment only.

*2 We review summary judgments under well established standards: (1) the movant must show there is no genuine issue of material fact and that the movant is entitled to a judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding summary judgment, the court must take evidence favorable to the nonmovant as true; and (3) the court must indulge every reasonable inference in favor of the nonmovant and resolve any doubts in the nonmovant’s favor. Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546, 548-49 (Tex.1985). A defendant is entitled to summary judgment if the summary judgment evidence establishes, as a matter of law, that at least one element of a plaintiff’s cause of action cannot be established. Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997). Because the propriety of a summary judgment is a question of law, we review the trial court’s decision de novo. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex.1994). When a trial court’s order granting summary judgment does not specify the ground or grounds upon which the motion was granted, the reviewing court will affirm the judgment if any of the theories advanced in the motion are meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989); Dallas Indep. Sch. Dist. v. Finlan, 27 S.W.3d 220, 226 (Tex.App.-Dallas 2000, pet. denied). To prevail, the appellant must show each of the independent arguments alleged in the motion is insufficient to support summary judgment. Holloway v. Starnes, 840 S.W.2d 14, 18 (Tex.App.-Dallas 1992, writ denied).

The Texas Supreme Court has adopted the burden-shifting analysis established by the U.S. Supreme Court in employment discrimination cases. M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 24 (Tex.2000); see Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142-43, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). In discrimination cases, the summary judgment movant has the burden under rule 166a(c) to prove as a matter of law a legitimate, nondiscriminatory reason for the nonmovant’s termination. Willrich, 28 S.W.3d at 24. In its motion for summary judgment and in its supplemental motion for summary judgment, Tom Thumb stated it terminated Ferrer because he violated company rules requiring employees to clock out when leaving work and for job abandonment. To support its articulated reasons for Ferrer’s termination, Tom Thumb produced its Associate Handbook (handbook), a copy of its Employee Safety Program (the Plan), and the affidavits of Kathleen Bigham, Brian Griesemer, Joe Rios, and Ferrer. The handbook stated failure to clock in and clock out “will result in immediate disciplinary action up to and including termination.” The handbook also stated an employee would be subject to immediate dismissal for “leaving work without permission .” The Plan stated its purpose is to provide medical benefits and wage replacement benefits for employees who sustain certain accidental injuries or death. The administrator of the Plan is the company. An employee who has not been released to return to work by the treating physician is eligible under the Plan for wage replacement benefits for each work day of incapacity until the end of the eligibility period. Also, the Plan provides for an appellate review process before a committee and a board appointed by the company if an employee is denied benefits. Under the Plan all requests for review of a denial of benefits would occur within ninety days after receipt of the claim or “if the claimant shall not be notified … the claim shall be deemed denied.” Bigham, the director of the Plan, stated she neither received an appeal or complaint from Ferrer regarding his rights under the ERISA Plan nor did she consult with either Rios or Griesemer regarding Ferrer’s termination. Rios, Ferrer’s supervisor, stated he reported Ferrer to Griesemer, Ferrer’s warehouse manager, for failing to clock out, leaving work without authorization, and job abandonment.

*3 Tom Thumb’s motion also contained the affidavit of Ferrer. In his affidavit, Ferrer asserted the following:

On or about August 5, 1997, I had an appointment with Dr. Wilcox during my work shift. I notified my lead man, Jose Rios, in advance that I would be leaving to attend this appointment. During my employment with Defendant (based on personal experience and my observation of other employees while I was a supervisor), it was the practice that employees injured on the job did not clock out when attending doctor appointments during scheduled work hours. In accordance with this practice, I did not clock out when I left to attend my August 5, 1997 doctor appointment.

Ferrer filed an additional affidavit in response to Tom Thumb’s motion. In it he stated:

While I was employed at Tom Thumb, Jose Rios often sent me to buy lottery tickets for him and his dinner while on the clock. Rios also left me in charge while he would leave work, even though he was on the clock and would go cash his paycheck … I took several other employees to doctor appointments for work related injuries while they were on the clock. I would take employees that did not have transportation or to serve as an interpreter for the ones who spoke Spanish only. All this was personally observed by me in my 28 years of employment.

The summary judgment proof provided by Tom Thumb in its supplemental motion came from Ferrer’s deposition testimony. Ferrer testified he failed to clock out at 4:30 p.m. when he left for the doctor’s appointment the day before he was terminated and that, in the twenty-eight years he had worked for Tom Thumb, the requirement for clocking out had not applied when an employee left work for medical treatment of a job-related injury. Also, he stated he missed no work as a result of his thumb injury. Ferrer further acknowledged receiving his accrued vacation benefits and wages to the date of his termination and stated he had not applied for any other benefits following his termination.

Exhaustion of Remedies

In his first point of error, Ferrer contends the trial court erred by granting summary judgment because Ferrer met mandatory appeal procedures. Tom Thumb contends Ferrer’s claims should be barred because Ferrer failed to exhaust available administrative remedies by failing to request a review of his denial of benefits prior to commencing suit. We disagree with Tom Thumb.

The purposes of the exhaustion requirement are to minimize the number of frivolous ERISA suits, protect the consistent treatment of benefit claims, provide a nonadversarial dispute resolution process, decrease the time and cost of claims settlement, and provide a clear record of administrative action if litigation should ensue. Hall v. Nat’l Gypsum Co., 105 F.3d 225, 231 (5th Cir.1997). The Fifth Circuit has determined none of these conditions are present in a suit alleging wrongful discharge or interference of benefits under section 510. See Chailland v. Brown & Root, Inc., 45 F.3d 947, 950 (5th Cir.1995). A plaintiff is not required to exhaust administrative remedies prior to commencing an action under ERISA section 510, 29 U.S.C. section 1140.¹ Chailland, 45 F.3d at 950-51. Moreover, to impose the exhaustion requirement in this case would be inappropriate since Tom Thumb’s Plan only references situations involving a denial of claims for benefits rather than providing procedures for the appeal of a wrongful discharge. See Chailland, 45 F.3d at 950-51. Thus, we conclude Tom Thumb was not entitled to summary judgment on this theory of recovery. We sustain Ferrer’s first point of error.

No-Evidence Summary Judgment

*4 Under its no-evidence motion for summary judgment, Tom Thumb asserts there is no summary judgment evidence that: Ferrer followed the mandatory appeals procedure of the safety program before filing suit; the motivating factor of Tom Thumb’s termination of Ferrer was to interfere with his ERISA benefits; Tom Thumb’s reason for terminating Ferrer is a pretext; Tom Thumb had the subjective intent to interfere with Ferrer’s ERISA benefits when it terminated him; and Ferrer did not receive all ERISA benefits to which he was entitled. Because a no-evidence summary judgment is essentially a pretrial directed verdict, we apply the same legal sufficiency standard of review. Gen. Mills Rest., Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 832-33 (Tex.App.-Dallas 2000, no pet.). Our task is to determine whether the nonmovant produced any evidence of probative value to raise a genuine issue of fact on the material questions presented. Id. at 833. If the nonmovant is unable to produce more than a scintilla of evidence, the trial court must grant the motion. Tex.R. Civ. P. 166a(i).

The party moving for a no-evidence summary judgement must specifically state the element or elements as to which there is no evidence. Tex.R. Civ. P. 166a(i); Dolcefino v. Randolph, 19 S.W.3d 906, 916-17 (Tex.App.-Houston [14th Dist.] 2000, pet. denied). Thus, a motion for summary judgment must stand or fall on the grounds expressly presented in the motion. See McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 342 (Tex.1993); Espalin v. Children’s Med. Ctr. of Dallas, 27 S.W.3d 675, 688 (Tex.App.-Dallas 2000, no pet.). We review the evidence in the light most favorable to the nonmovant and make every reasonable inference and resolve all doubts in favor of the nonmovant. Gen. Mills, 12 S.W.3d at 833. A summary judgment may not be granted on a cause of action not addressed in the summary proceeding. Chessher v. Southwestern Bell Tel. Co., 658 S.W.2d 563, 564 (Tex.1983); Gen. Mills, 12 S.W.3d at 836.

ERISA

To establish a prima facie case of discrimination under section 510 of ERISA, a plaintiff must establish that his employer discriminated or discharged him for exercising any right he is entitled to under an employee benefit plan or for the purpose of interfering with the attainment of any right which he may become entitled under an employee benefit plan. Holtzclaw v. DSC Communications Corp., 255 F.3d 254, 260 (5th Cir.2001); Stafford v. True Temper Sports, 123 F.3d 291, 295 (5th Cir.1997); Rogers v. Int’l Marine Terminals, Inc., 87 F.3d 755, 761 (5th Cir.1996).

In points of errors two, three, four, and five, Ferrer contends the trial court erred because the summary judgment record reflects material facts that Tom Thumb terminated him to interfere with his ERISA benefits; that Tom Thumb’s subjective intent was to interfere with his ERISA benefits; that Tom Thumb terminated Ferrer because he sought ERISA benefits; and Tom Thumb’s articulated reason for terminating Ferrer was a pretext. In response, Tom Thumb argues Ferrer received all the benefits allowed injured employees under the Plan. The Plan provided Ferrer was entitled to medical treatment for the injury, and if his doctor restricted him from returning to the job, he was entitled to wage continuation during the time he was off work. Ferrer agrees Tom Thumb paid all medical expenses arising from his thumb injury including those incurred for surgery several months after Ferrer was terminated. Although Ferrer sought damages for lost wages, he was not eligible for wage continuation because he missed no work as a result of his injury. In deposition testimony submitted in support of Tom Thumb’s supplemental motion for summary judgment, Ferrer testified he had not lost any time from work as a result of his injury. Additionally, the evidence in the record indicates any loss of future wages was merely incidental to the discharge.

*5 Ferrer contends in his third point of error summary judgment was improper because there were material fact issues regarding whether Tom Thumb’s articulated reason for terminating Ferrer was a pretext.

A plaintiff must show employment was terminated because of a specific intent to interfere with ERISA rights in order to prevail under section 510. Holtzclaw, 255 F.3d at 260; Stafford, 123 F.3d at 295; Rogers, 87 F.3d at 761. The plaintiff need not prove the discriminatory reason was the only reason for discharge, but he must show that the loss of benefits was more than an incidental loss from his discharge. Holtzclaw, 255 F.3d at 260; Stafford, 123 F.3d at 295. This inference of discrimination can be proven by circumstantial evidence. Holtzclaw, 255 F.3d at 260; Stafford, 123 F.3d at 295.

To dispel the inference of discrimination, the defendant must articulate a nondiscriminatory reason for his actions, thereby shifting the burden back to the plaintiff to prove the reason proffered was a pretext. Reeves, 530 U.S. at 142-43; Stafford, 123 F.3d at 295; McGann v. H.H. Music Co., 946 F.2d 401, 404 (5th Cir.1991). A party against whom summary judgment is sought is not entitled to a trial simply because he has asserted a cause of action to which state of mind is a material element; rather, there must be some indication he can produce the requisite quantum of evidence to enable him to reach the jury with his claim. Dytrt v. Mountain State Tel. & Tel. Co., 921 F.2d 889, 896 (9th Cir.1990).

To support his claim of pretext, Ferrer testified by affidavit he advised Rios he was leaving work to see the doctor. He further testified that in his personal experience and observations, it was long-standing company practice for employees to not clock out when attending a doctor’s appointment related to an on-the-job injury. At the direction of his supervisors, he had personally escorted many employees to doctors for treatment of job-related injuries and had observed they did not clock out before leaving. He also stated Rios, his supervisor, often sent him on personal errands for Rios while on the clock, and that Rios left the work place without clocking out to cash his paycheck. None of the other employees who failed to clock out were disciplined for the same infraction for which Ferrer was terminated.

Ferrer argues this testimony regarding his disparate treatment by Tom Thumb is sufficient circumstantial evidence Tom Thumb’s articulated reason for his termination is a pretext for denying him salary continuation benefits he would have received during his surgery. We disagree.

There is no summary judgment evidence Ferrer or Tom Thumb knew surgery on Ferrer’s injured hand would be required in the future. At the time of his discharge, Ferrer had lost no time from work. It is not disputed he had received all of the medical treatment, including the post-termination surgery, he was entitled to under the Plan. Ferrer’s eligibility for salary or wage continuation was dependent upon his being placed on restricted duty by his doctor. There is nothing in the summary judgment record to support even an inference that Ferrer ever met these requirements. Thus, it is mere speculation to conclude the reason given for Ferrer’s termination was a subterfuge for interfering with any future wage continuation benefits under the Plan.

*6 Ferrer was an at-will employee subject to discharge for any nondiscriminatory reason. Because he failed to present any evidence that Tom Thumb terminated him to interfere with the attainment of any ERISA benefits, we overrule Ferrer’s points of error two, three, four, and five.

In point of error six, Ferrer contends the trial court erred in granting summary judgment because Tom Thumb’s motion did not challenge Ferrer’s claim he was terminated because he sought benefits under ERISA. In point of error seven, he asserts the trial court erred in granting summary judgment. We will address these points of error jointly.

Assuming he established that Tom Thumb’s articulated reasons were pretext, Ferrer had the additional burden to show Tom Thumb terminated him with the specific intent to violate ERISA. See Holtzclaw, 255 F.3d at 260; Stafford, 123 F.3d at 295; Rogers, 87 F.3d at 761. Thus, the burden was on Ferrer to show he was terminated for seeking benefits and to show he was entitled to benefits.

Tom Thumb alleged its sole reason for terminating Ferrer was his violation of company work rules by failing to clock out before leaving work to attend a doctor’s appointment and job abandonment. It is undisputed that both clocking out and prior permission were required by Tom Thumb’s Associate Handbook. Ferrer was terminated over two months after he was injured. It is further undisputed Ferrer received all medical benefits he was entitled to. Ferrer was required to produce some evidence of benefits he was entitled to and did not receive; however, there is no evidence he missed any work due to the injury and no evidence he was entitled to wage continuation. Thus, at best, Ferrer met only one part of the two-part test. Because he has failed to produce any evidence to support the claim that he was terminated for seeking benefits or that he was entitled to any benefits he did not receive, we overrule Ferrer’s sixth and seventh points of error.

Accordingly, we affirm the trial court’s judgment.

	Footnotes
1		The Third, Ninth, and Tenth Circuits also do not require exhaustion for an ERISA section 510 claim. See Zipf v. Am. Tel. & Tel. Co., 799 F.2d 889, 891-94 (3rd Cir.1986); Amaro v. Cont’l Can Co., 724 F.2d 747, 750-52 (9th Cir.1984); Held v. Mfrs. Hanover Leasing Corp., 912 F.2d 1197, 1204-05 (10th Cir.1990).