Court of Appeals of Texas, Austin.

Bobby H. LUNA, Appellant,

v.

ETHICON, INC., Appellee.

No. 03-97-00264-CV.

|

Jan. 23, 1998.

Before Justices POWERS, ABOUSSIE and B.A. SMITH.

OPINION

John POWERS, Justice.

*1 Bobby H. Luna sued his employer, Ethicon, Inc., for retaliatory discharge under Texas Labor Code section 451.001 (West 1996). He appeals now from a summary judgment that he take nothing by his claim. We will reverse the judgment and remand the cause to the trial court.

THE CONTROVERSY

Luna began working for Ethicon in 1987. Luna’s work-operating machinery that attached surgical needles to strands of suture-required certain repetitive hand and wrist motions. In January 1994, Luna complained to Ethicon’s health department of numbness and pain in his hands. The health department referred Luna to Angelo Physical Therapy, Inc., where Dr. Pascual Mendoza diagnosed the condition as “bilateral DeQuervain’s Syndrome”¹ and recommended that Luna wear splints.

On January 31, 1994, Luna applied for a medical leave of absence. Dr. Vernon Ryan, a San Angelo orthopaedic surgeon to whom Luna had also been referred, verified on Luna’s application for leave of absence that he suffered from DeQuervain’s syndrome and confirmed that “the employee’s condition prohibits [him] from working.” While on leave, Luna applied for and received workers’ compensation benefits.

According to Luna, Dr. Ryan recommended surgery to alleviate the condition. Hoping to avoid surgery, Luna sought a second opinion and was referred to Dr. David Green. Green evaluated Luna on March 8, 1994, and recorded “a suggestion of possible carpal tunnel syndrome.”

Two Ethicon employees-Mary Lou Perez, a company nurse, and Gary Loudamy, Ethicon’s Human Resources Manager-suspected that Luna’s injuries were faked. Loudamy so informed “Kemper Insurance,” Ethicon’s workers’ compensation insurance carrier. As a result, Kemper followed Luna on April 2, 1994, and videotaped his activities while Luna was on medical leave. Kemper’s surveillance videos showed Luna performing a number of everyday activities, including playing softball, carrying firewood, lifting an ice chest or cooler, and playing horseshoes.

Luna returned to light-duty work in May 1994. The light-duty work also involved repetitive, twisting wrist movements and he experienced pain doing even this work. On May 12, 1994, he visited Perez, the company nurse who doubted the legitimacy of his injuries. During the course of this visit, Perez prepared a document that recorded, among other things, that Luna experienced pain while working, and that he “could not hold [this] paper to read it,” could not “perform daily living activities,” and could not “play softball.” Luna signed the document. The parties refer to the document as the “May 12 memo.”²

On May 14, 1994, Luna resumed his medical leave of absence. Kemper followed Luna on May 29 and June 11 and again filmed Luna performing a variety of activities. Kemper contacted Dr. Green and showed him the videotapes. Based apparently on a viewing of the tapes, Dr. Green concluded that Luna suffered from “zero percent impairment” in his upper body, thus impliedly retracting his own earlier diagnosis of possible carpal tunnel syndrome. On August 1, 1994, Loudamy met with Luna to “discuss the insurance claim,” and confronted Luna with the videotapes. Ethicon discharged Luna thereafter.

*2 After extensive testing of nerves in his hands and wrists, Luna’s condition was finally diagnosed as carpal tunnel syndrome. He underwent surgery to improve the condition in his left wrist. Luna’s treating physician swore Luna’s carpal tunnel syndrome is completely consistent with his ability to perform the physical activities shown on the Kemper videotapes because the hand motions involved in the videotaped activities do not necessarily put pressure on the median nerve.

Luna sued Ethicon for retaliatory discrimination in violation of section 451.001 of the Texas Labor Code. Ethicon moved for summary judgment on a single ground: “Ethicon’s summary judgment evidence conclusively establishes the absence of discriminatory intent.” The trial court judgment, rendered on the motion, orders inconsistent relief: (1) that Luna take nothing by his action against Ethicon and (2) that Luna’s action “is dismissed on the merits.” Because no basis appears in the record for the dismissal, we will interpret the judgment as ordering only that Luna take nothing.

DISCUSSION AND HOLDINGS

Section 451.001 of the Texas Labor Code prohibits the discharge of or other discrimination against an employee because he or she files a workers’ compensation claim in good faith. Tex. Labor Code Ann. § 451.001 (West 1996). An employee’s claim need not be the employer’s sole motivation for a discharge; the claim must, however, be such that the discharge would not have occurred when it did absent the claim. Continental Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996).

Ethicon concedes Luna’s claim for workers’ compensation was filed in good faith and his surgery and the resulting award indicate his injury was genuine. To defeat Luna’s claim that he was discharged because he filed a workers’ compensation claim, Ethicon alleged and moved for summary judgment on the ground that he was discharged for dishonesty-a legitimate, non-discriminatory reason. Ethicon was entitled to summary judgment if (1) the summary-judgment documents established as a matter of law that Luna was discharged for such dishonesty and (2) Luna failed to supply summary-judgment documents showing a retaliatory motive. See Texas Division-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 313 (Tex.1994). We conclude the summary-judgment documents fail to establish as a matter of law that Luna was discharged for dishonesty.

Ethicon’s motion for summary judgment did not identify any act of dishonesty on Luna’s part. The motion averred only that Luna was discharged because he violated Ethicon’s “policy prohibiting its associates from making materially dishonest statements to the company.” Loudamy’s affidavit, attached to the motion, identified as follows the allegedly dishonest statement:

I decided to discharge Luna only because I believed, after viewing the video surveillance tapes and reviewing Dr. Green’s expert opinion, that Luna’s May 12 statement was a knowing misrepresentation regarding the nature or severity of his alleged injury.

*3 (emphasis added). In his deposition testimony, Loudamy identified two assertedly dishonest statements he attributed to Luna, both of which were contained in the May 12 memorandum: (1) Luna falsely exaggerated “the nature and severity of his alleged injury;” and (2) Luna falsely claimed he was “unable to do the work” assigned to him.³

Thus, according to Loudamy, Luna’s dishonesty consists in his assertion that the pain in his wrists prevented his doing the work assigned to him at Ethicon, as Luna claimed in the May 12 memorandum. In the memorandum, Luna stated his wrists burned and hurt constantly and the pain worsened when he attempted either his regular work or light-duty work. Luna also stated in the memorandum that he could not “play softball,” “dress himself,” “hold the paper to read it,” and “perform daily living activities.” These expressions are open to different interpretations as to their intended meaning insofar as they relate to the particular wrist motions involved. As stated by Luna’s treating physician, the videotapes showing Luna playing softball and doing other things have no bearing on Luna’s condition because the activities shown therein “are not likely to cause the symptoms that [Luna] has due to other motor activities…. Carrying a cooler doesn’t involve putting your wrists in such a way that you’re going to put pressure on the median nerve.” Even so, Loudamy testified that he did not discharge Luna because he believed Luna dishonest in his statements concerning activities other than work activities.⁴

The issue thus reduces to whether the record shows conclusively that Luna was dishonest when he stated in the May 12 memorandum that the pain in his wrists prevented his doing the work required of him at Ethicon. The asserted dishonesty of this statement is a disputed issue of material fact in the summary-judgment record. On one side are Dr. Green’s opinion, based evidently on his viewing the videotapes, that Luna suffered from no disability at all and the videotapes themselves showing Luna engaged in various activities that involve, in some manner at least, Luna’s wrists. On the other side are Luna’s affidavit and deposition statements that he could not do the assigned work because of wrist pain, the various physicians’ diagnoses of carpel tunnel syndrome and DeQuervain’s syndrome, including Dr. Green’s initial expert opinion, the fact of Luna’s surgery to correct his wrist condition and alleviate the pain, and his treating physician’s expert opinion that the activities shown in the videotapes were not such as to cause the pain in Luna’s wrists that resulted when he attempted to do the work required in his employment at Ethicon.

Because the summary-judgment record is so disputed on the material issue-the sole imputation of dishonesty for which Luna was discharged-Ethicon did not establish as a matter of law that the company discharged Luna for the legitimate, non-discriminatory reason claimed in support of Ethicon’s motion for summary judgment, namely Luna’s claimed dishonesty in asserting that the pain in his wrists prevented his doing the work required by his employment at Ethicon.

*4 We therefore reverse the summary judgment and remand the cause to the trial court.

* * *

	Footnotes
1		DeQuervain’s disease is an inflammation of the sheath of a tendon of the thumb.
2		In the May 12 memorandum, Perez recorded that Luna represented as follows: Both wrists are burning and hurt constantly. [Luna] states pain has worsened since he returned to work on Tuesday, 5/10/94. He told both Dr. Mendoza and Dr. Green that he still had pain, but because there was restricted duty available, Dr. Green, his treating physician, wanted to let him try to return to work. [Luna] has been off since 1-18-94, and states he has not been able to hold the paper to read it, or play softball, and required help to dress himself and perform daily living activities. States he is tired of staying at home since he is unable to do anything. [Luna] states the restricted duty work is easy, but even at 50% quota he is experiencing pain and burning in both wrists. [Luna] states he was wearing bilateral wrist splints since 1-18-94, until most recent appointment with Dr. Green. At present he is wearing tennis elbow braces with little relief.
3		Loudamy: [Luna] claimed a disability or disabilities which indicated [sic] caused him to be unable to do work that was available. Q: What was the disability that he claimed he had? Loudamy: He claimed that he was unable to do a number of regular functions including reading the paper, dressing himself, having those kind[s] of regular activities. Q: All right. Is that why you fired him, for claiming he couldn’t read the paper or dress himself? Loudamy: No…. We fired him because the disabilities that he claimed and the claims that he made that he was unable to do the work were inconsistent with our observations and with the evidence that we had. (emphasis added).
4		See footnote 2, supra.