Court of Appeals of Texas, Houston (1st Dist.).

Thomas P. SWEENEY, Stephen B. Gale, and Paul Gale, Appellants,

v.

The GEON COMPANY, Appellee.

No. 01–00–00315–CV

|

Jan. 17, 2002.

Panel consists of Justices WILSON, TAFT, and PRICE.²

OPINION

DAVIE L. WILSON, Justice.

*1 Appellants, Thomas P. Sweeney, Stephen B. Gale, and Paul Gale, filed suit against appellee, The Geon Company, on several theories: (1) tortious interference with their employment relationship with Brown & Root Industrial Services, Inc.; (2) retaliation pursuant to section 451.001 of the Texas Labor Code; and (3) toxic tort and/or simple negligence.

The trial court granted Geon’s two partial motions for summary judgment, and the parties non-suited other claims. Appellants now challenge the trial court’s granting of Geon’s motions for summary judgment, alleging material issues of fact exist on each of their claims. We affirm.

Facts

The Contract

In July 1989, Brown & Root and Geon entered into a contract in which Brown & Root would provide Geon with maintenance service workers. Appellants were employees of Brown & Root and worked on Geon’s job site under this agreement. Sweeney worked as a heavy equipment operator, operating all types of heavy equipment throughout the Geon plant. Paul Gale worked as an industrial maintenance mechanic and area foreman in the Oxy–Vinyl Unit, ensuring equipment remained operational, and Stephen Gale worked as a maintenance mechanic in the ethylene dichloride (EDC) Unit, Purification Unit, and Cracking Unit, which involved breaking lines, fixing leaks, and replacing valves and lines containing EDC.

At Geon, appellants were part of the “Core” group, which consisted of 80 Brown & Root employees with at least three years experience of working well and safely at Geon. Geon kept the Core employees on call 24 hours a day. Geon gave Core employees paid holidays and bonuses based on performance. Appellants were also included in Geon’s Prime Program, whose members met monthly with Geon plant managers to discuss improving production and safety at the plant.

On a daily basis, Geon personnel supervised and directed appellants’ work. At times, when work was particularly dangerous or unusual, Geon personnel, in person or over a radio from a safe distance, would give step-by-step instructions to appellants until the task was completed. Appellants’ affidavits include examples of Geon’s supervision and direction of their work.

The Claims

While working at Geon, appellants allege they were exposed to toxic chemicals on a daily basis. First, appellants allege the exposure occurred because Geon illegally released toxic chemicals into the air by venting or flaring particularly noxious gases and by-products. After such ventings, Geon employees often washed vehicles in the parking lot to prevent the air-borne chemicals from settling on the cars and ruining the paint.

Second, appellants allege they were exposed to toxic chemicals because of the method in which Geon personnel instructed them to complete their jobs and Geon’s failure to provide appropriate safety measures. While Geon provided fire-retardant clothing (FRC), many of the chemicals appellants worked with could penetrate FRC. Although appellants requested chemically-retardant clothing, Geon instructed them to wear disposable, plastic suits over their FRCs when working with particularly hazardous chemicals. Appellants allege they worked without appropriate safety equipment to prevent inhalation of and contact with toxic chemicals. Appellants allege Geon refused to provide showers and eye-wash stations to treat chemical exposures.

*2 In addition to poor safety measures, appellants allege Geon personnel instructed them to complete jobs in a manner that exposed them to harmful chemicals. While working with heavy machinery, Sweeney alleged odor, soot, or smoke would force him out of his cab, and Sweeney would become coated with a black substance. Working with the Oxy–Vinyl Unit, Paul Gale was exposed to chemicals commonly found in the unit including a catalyst scrub, unknown process chemicals, chromium catalyst, and allyl chloride. Unplugging lines, replacing valves, and containing leaks, Stephen Gale was constantly exposed to EDC and vinyl chloride.

From these exposures, appellants allege they now suffer a variety of illnesses. Sweeney has tumors and spots on his skin and complains of swelling joints, difficulty walking, dizzy spells, shortness of breath, and severe cramping. As a result of his exposure, Paul Gale has had teeth erosion, loss of sleep, skin lesions, moles, other growths, and a burning sensation in his chest. Stephen Gale complains of muscle cramps, burning sensations, chemical burns, tumors, and skin lesions.

After a colleague died from cancer, appellants began to suspect they had been exposed to hazardous chemicals. Appellants requested blood tests and believed they were filing worker’s compensation claims to confirm whether they had been exposed to hazardous chemicals and to receive appropriate medical treatment. All three were terminated from Brown & Root almost immediately. Appellants allege Brown & Root supervisors came to them at the Geon plant while they were working overtime and terminated them. Appellants were told it was best for the company.

The day after their termination, appellants were told Brown & Root had instituted a reduction of force (ROF). In the past, Brown & Root’s criteria for an ROF focused on substandard employees when business was slow, and the substandard employees were notified two hours before the end of the day. Appellants argue nothing in their personnel records suggest they were substandard. In fact, Paul Gale attended an ROF supervisor’s meeting in which the ROF employees were discussed. A Geon plant manager testified he attended a Geon/Brown & Root meeting in which the ROF was discussed, including the employees to be terminated. Paul Gale stated in his affidavit that Stephen Gale and Sweeney were terminated at Geon’s request because they complained about chemical exposure, safety procedures, and were “Greenpeacers.” When Paul Gale was terminated, he testified he was told Geon did not want a family member of Stephen Gale’s to remain.

A few months later, Brown & Root rehired Paul Gale and again assigned him to Geon. However, he refused to wash contaminated vehicles following a hazardous chemical spill at the Geon facility until he was assured Geon would report the spill. He was terminated immediately.

Discussion

1. Summary Judgment Standard of Review

Geon presented two motions for summary judgment, challenging all of appellants’ causes of action on both traditional and no-evidence grounds.

*3 To overcome a no-evidence motion for summary judgment, non-movants must present more than a scintilla of probative evidence to raise a genuine issue of material fact on which the non-movant would have the burden of proof at trial. Tex.R. Civ. P. 166a(i); Jones v. Star Houston, Inc., 45 S.W.3d 350, 353 (Tex.App.-Houston [1st Dist.] 2001, no writ). To present more than a scintilla, the evidence must allow “reasonable and fair-minded people to differ in their conclusions,” which is more than evidence that “create[s] a mere surmise or suspicion” of a fact. Fields v. Teamsters Local Union No. 988, 23 S.W.3d 517, 523 (Tex.App.-Houston [1st Dist.] 2000, pet. denied). In a traditional motion for summary judgment, the movant bears the burden to show no genuine issue of material fact exists, and it is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Nixon v.. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985).

On review, we take evidence favorable to the non-movant as true in deciding whether there is a disputed issue of material fact that precludes a summary judgment. Nixon, 690 S.W.2d at 548–49. When a summary judgment disposes of the entire case in favor of the defendant, it is proper only if, as a matter of law, the plaintiffs could not succeed on any pleaded theory. Waddy v. City of Houston, 834 S.W.2d 97, 101 (Tex.App.-Houston [1st Dist.] 1992, writ denied).

2. Tortious Interference

In their first point of error, appellants argue the trial court erred in granting summary judgment because there are genuine issues of material fact regarding whether Geon tortiously interfered with appellants’ employment relationships with Brown & Root.

To establish a claim for tortious interference, plaintiffs must show: (1) a contract, which was the subject of the interference, existed between plaintiffs and a third party, (2) the defendant’s act of interference was willful and intentional; (3) the defendant’s intentional act was a proximate cause of plaintiffs’ damages; and (4) plaintiffs suffered actual damage. Victoria Bank & Trust Co. v.. Brady, 811 S.W.2d 931, 939 (Tex.1991). In its motions for partial summary judgment, Geon challenged the second requirement, arguing appellants had presented no evidence and there was no issue of material fact showing Geon acted willfully and intentionally.¹

On the day they were terminated, appellants were told it was “good for the company,” and appellants testified they believed “the company” meant Geon. From this, appellants inferred they were terminated at Geon’s request. However, appellants’ subjective belief concerning the reasons for their termination, unsupported by other proof, is not competent summary judgment evidence. See Rizkallah v. Conner, 952 S.W.2d 580, 586 (Tex.App.-Houston [1st Dist.] 1997, no writ).

Appellants claim Geon acted willfully and intentionally when it interfered with their employment with Brown & Root, arguing Geon had the opportunity and a motive to interfere, and Brown & Root’s ROF was a pretext. The opportunity to interfere came when a Geon plant supervisor attended the Brown & Root committee meeting where the ROF decisions were made and the individuals to be terminated were discussed. Geon argues its plant management did not know about the ROF or who would be terminated.

*4 The “interference” occurred after Stephen Gale and Sweeney had complained about chemical exposure, safety procedures, and requested blood tests for chemical exposure. In fact, Paul Gale attended a Brown & Root ROF meeting and learned Stephen Gale and Sweeney were terminated at Geon’s request and heard them called “Greenpeacers.”

Taking evidence favorable to appellants as true, we find Geon objected to Brown & Root about appellants’ presence at the Geon facility. Under the contract between Geon and Brown & Root, Geon was entitled to object to employees Brown & Root placed at the Geon plant. However, to survive the motion for summary judgment, appellants had to show Geon interfered and asked Brown & Root to terminate them, not simply place them on a different assignment. There is no evidence, other than appellants’ subjective belief, that Brown & Root terminated their employment for a reason other than a ROF. There is no evidence Geon interfered and required Brown & Root to terminate appellants’ employment.

Appellants assert Brown & Root’s ROF was a pretext created to conceal the manner in which Geon caused their termination. There is no evidence Brown & Root did not act of its own accord to terminate appellants’ employment.

Geon has met its burden to show no genuine issue of material fact exists, and it is entitled to judgment as a matter of law. We overrule appellants’ first point of error.

3. Toxic Tort/Negligence Claims

In point of error three, appellants argue the trial court erred in granting summary judgment on their toxic tort/negligence claims because there are genuine issues of material fact regarding whether: (1) Geon owed a duty to them; (2) Geon was negligent in exposing them to toxic chemicals; (3) there was a causal link between their injuries and the chemical exposure; and (4) the toxic tort/negligence claims were barred by the statute of limitations.

To establish a cause of action based on toxic tort or negligence, plaintiffs must show the defendant owed a duty to plaintiffs, the defendant breached the duty, and the breach proximately caused damages to plaintiffs. Northwest Mall, Inc. v. Lubri–Lon Int’l, Inc., 681 S.W.2d 797, 802 (Tex.App.-Houston [1st Dist.] 1984, writ ref’d n.r.e.). Geon argued in its motions for partial summary judgment that appellants did not show the existence of a duty and a causal link, and, in addition, the statute of limitations barred appellants’ claims. Appellants did not offer evidence of causation in response to Geon’s no-evidence challenge.

Causation in toxic tort cases is discussed in terms of general and specific causation. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 714 (Tex.1997). “General causation” is whether a substance is capable of causing a particular injury in the general population, and “specific causation” is whether a substance caused a particular individual’s injuries. Id. Where causation is not readily ascertainable from general experience and common sense, proving causation requires expert testimony. Lenger v. Physician’s Gen. Hosp. Inc., 455 S.W.2d 703, 708 (Tex.1970).

*5 Through Material Data Safety Sheets and other product warning literature, appellants provided information concerning the general dangers of various toxic chemicals, including EDC, chromium catalyst, VCM, and allyl chloride that cause cancer, burns, and other injuries. Appellants allege their exposure caused them to suffer tooth loss, skin lesions, tumors, growths, dizziness, swollen joints, and breathing problems. However, appellants presented no evidence that the alleged exposure caused the specific, complained of injuries.

Because causation of injuries from exposure to toxic chemicals is not readily ascertainable from general experience and common sense, appellants have not presented more than a scintilla of probative evidence to raise a genuine issue of material fact on specific causation. We overrule point of error three.

4. Wrongful Discharge

In point of error two, appellants argue the trial court erred in granting summary judgment because there were genuine issues of material fact regarding whether Geon may be liable to them under the Texas Labor Code section 451.001.

To bring a challenge for wrongful discharge under section 451.001 of the Texas Labor Code, plaintiffs must fall into one of the four statutorily required circumstances, and an employer-employee relationship must exist. Tex. Lab.Code Ann. § 451.001(1) (Vernon Supp.2002); Stewart v. Littlefield, 982 S.W.2d 133, 137 (Tex.App.-Houston [1st Dist.] 1998, no writ). In its motion for partial summary judgment, Geon challenged the existence of an employer-employee relationship. However, we need not make a determination of the employment status.

Under section 451.001 of the Texas Labor Code, a claim of retaliation cannot be brought against an employer that does not subscribe to the Texas Worker’s Compensation Act (“the Act”). Texas Mexican Ry. Co. v. Bouchet, 963 S.W.2d 52, 56 (Tex.1998). This is true even when a plaintiff brings his claim under the Act and not a similar federal cause of action. Watkins v. Diversitech Corp., 988 S.W.2d 440, 441 (Tex.App.-Houston [1st Dist.] 1999, pet. denied). The only evidence appellants presented was found in their affidavits showing they filed or attempted to file worker’s compensation claims. However, appellants presented no evidence that Geon subscribed to a policy which covered the injuries appellants sustained during their assignment at Geon. In contrast, Geon presented the Maintenance Agreement (“the contract”) into which Brown & Root and Geon entered. The contract provided, in part, that Brown & Root, and not Geon, subscribed to worker’s compensation insurance for Brown & Root employees assigned to the Geon facility. Because there is no evidence Geon is a subscriber, appellants cannot maintain a cause of action against Geon for retaliation.

We overrule point of error two.

Conclusion

We affirm the judgment.

	Footnotes
2		The Honorable Frank C. Price, former Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.
1		On appeal, Geon also argues appellants did not have an employment contract with Brown & Root because they were at-will employees. However, this argument is not properly before us because a motion for summary judgment must stand or fall on the grounds expressly presented in the motion. McConnell v. Southside Indep. School Dist., 858 S.W.2d 337, 341 (Tex.1993).