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At a Glance:
Title:
Allen v. Alumax Aluminum Corp.
Date:
February 7, 1992
Citation:
05-91-00750-CV
Status:
Unpublished Opinion

Allen v. Alumax Aluminum Corp.

Court of Appeals of Texas, Dallas.

Paul ALLEN, Appellant,

v.

ALUMAX ALUMINUM CORPORATION, Appellee.

No. 05-91-00750-CV.

|

February 7, 1992.

On Appeal from the 14th District Court Dallas County, Trial Court Cause No. 90-13365-A.

Before BAKER, THOMAS and BURNETT, JJ.

O P I N I O N

BAKER, Justice.

*1 Paul Allen appeals the trial court’s summary judgment for Alumax Aluminum Corporation, his former employer. Allen sued Alumax, claiming that Alumax wrongfully terminated him because he filed a workers’ compensation claim. Allen contends the trial court erred by granting summary judgment on the whole case because Alumax’s summary judgment motion did not address one of his claims. Allen also contends Alumax did not show as a matter of law no causal connection between his filing a workers’ compensation claim and his termination. We reverse in part and affirm in part.

FACTUAL BACKGROUND

Alumax employed Allen in June 1985 to work at its Mesquite, Texas plant. Allen worked at the Alumax Mesquite plant from that time until May 1988. On May 22, 1988, Allen suffered an on-the-job accident. Because of this injury, Allen was unable to perform his employment duties from that date until sometime late in 1989. Allen filed for workers’ compensation benefits. In early June 1988, Alumax received notice that Allen had filed for workers’ compensation benefits.

During his employment at Alumax, Allen was a member of the union. The collective bargaining agreement governed Allen’s conditions of employment with Alumax. One paragraph of the collective bargaining agreement provided:

The employees with less than ten (10) years of plant seniority may remain off the payroll for up to one (1) year and employees with ten (10) years or more plant seniority may remain off the payroll for up to two (2) years before their names will be removed from the plant seniority list.

Allen was an employee with less than ten years’ seniority. On May 23, 1989, Alumax removed Allen’s name from the plant seniority list. Removal from the seniority list effectively terminates the affected employee from his employment with Alumax.

About a month after Alumax terminated him, Allen filed a grievance contending that the applicable provision of the collective bargaining agreement applied only to absences from work due to lay-off. He claimed removing his name from the plant seniority list violated the collective bargaining agreement. Allen’s grievance went to arbitration. The arbitrator held that the collective bargaining agreement did not apply only to absences due to lay-offs and that Alumax’s removal of Allen’s name from the plant seniority list was according to the collective bargaining agreement.

PROCEDURAL HISTORY

Allen sued Alumax for wrongful discharge. Allen’s original petition alleged that Alumax (1) discriminated against him due to his pursuit of statutory rights accorded to him under articles 8306-8307 of the Texas Workers’ Compensation Act1 and (2) tortiously interfered with his statutory rights accorded by the Texas Workers’ Compensation Act.

*2 Alumax moved for summary judgment. Alumax’s motion alleged that “Plaintiff has alleged a state law cause of action for retaliatory discharge or discrimination pursuant to TEX. REV. CIV. STAT. ANN. art. 8307c.” Alumax alleged a right to summary judgment on the ground that Allen could not show a causal link between his filing of his workers’ compensation claim and his discharge. The trial court granted summary judgment for Alumax.

THE APPLICABLE LAW

1. Summary Judgment

A. Standard of Review

The Texas Supreme Court has set the standards we apply in reviewing a trial court’s grant of a summary judgment. As mandated by that court, they are:

(1) The movant for summary judgment has the burden of showing there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.

(2) In deciding whether there is a disputed material fact issue precluding summary judgment, we must take evidence favorable to the nonmovant as true.

(3) We must indulge every reasonable inference in favor of the nonmovant and resolve any facts in its favor.

See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985).

The summary judgment rule does not provide for a trial by deposition or affidavit. The rule provides a method of summarily ending a cause that involves only a question of law and no genuine facts. See Gulbenkian, 252 S.W.2d at 931.

A movant must show its entitlement to summary judgment on the issues expressly presented to the trial court by conclusively proving all essential elements of its cause of action or defense as a matter of law. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979).

To show its right to a summary judgment, the defendant must either disprove an essential element of the plaintiff’s cause of action as a matter of law or establish all elements of this defense as a matter of law. See Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970).

Except to attack the legal sufficiency of the movant’s grounds for summary judgment, the nonmovant must expressly present to the trial court any reason for avoiding the movant’s entitlement to summary judgment, and the nonmovant must present summary judgment proof when necessary to show a fact issue. The nonmovant must expressly present to the trial court in a written answer or response to the motion those issues that would defeat the movant’s right to summary judgment and, failing to do so, may not later assign them as appellate error. See TEX. R. CIV. P. 166a(c).

*3 A summary judgment must stand on its own merits. See TEX. R. CIV. P. 166a.

B. Competency of Summary Judgment Evidence

TEX. R. CIV. P. 166a(c).

2. The Article 8307c Wrongful Termination Claim

A. Allen’s Burden of Proof

In a suit under Hunt v. Van Der Horst Corp., 711 S.W.2d 77, 79 (Tex. App.-Dallas 1986, no writ).

THE PARTIES’ CONTENTIONS

1. Allen’s Contentions

In two points of error, Allen contends that: (1) the trial court erred in rendering summary judgment on the whole case for Alumax because Alumax’s motion for summary judgment did not address his cause of action for tortious interference with his statutory rights accorded by the Texas Workers’ Compensation Act; and (2) Alumax did not conclusively show as a matter of law there was no genuine issue of material fact about lack of a causal connection between Allen’s workers’ compensation claim and his discharge by Alumax.

2. Alumax’s Contentions

Alumax argues that article 8307c is his exclusive remedy. Alumax argues that the trial court found Allen’s original petition stated but one cause of action for retaliatory discharge and correctly applied the Texas law. Therefore, summary judgment on the whole case was proper.

Alumax also argues it did show as a matter of law there was no causal connection between Allen’s termination and his making a workers’ compensation claim. Alumax contends it came forward with competent summary judgment evidence conclusively showing Allen’s termination was not in violation of article 8307c but was under the terms of the collective bargaining agreement. Alumax further argues that Allen did not present summary judgment evidence to raise a fact question about a causal connection.

APPLICATION OF THE LAW TO THE FACTS

1. The Tortious Interference Claim

*4 Alumax’s motion for summary judgment stated that Allen alleged a state law cause of action for retaliatory discharge or discrimination pursuant to article 8307c. Alumax alleged its summary judgment evidence showed as a matter of law that Allen could not show a causal link between his workers’ compensation claim and his discharge. This was the sole ground upon which Alumax sought summary judgment against Allen. Alumax did not address the tortious interference allegation in Allen’s petition. The trial court’s judgment disposed of the entire case.

The trial court may not grant a judgment as a matter of law on a cause of action not addressed in a summary judgment proceeding. TEX. R. CIV. P. 166a(c). The trial court’s award of summary judgment on the whole case was error. We sustain Allen’s first point of error.

2. The 8307c Cause of Action

Alumax’s summary judgment evidence consisted of the affidavit of its Mesquite branch manager and excerpts from Allen’s deposition. The branch manager’s affidavit stated that removal of Allen’s name from the plant’s seniority list and the effective termination of his employment was because he had less than ten years of plant seniority and remained off Alumax’s payroll in excess of one year, not because he had filed a workers’ compensation claim. This affidavit also contained a true and correct copy of the collective bargaining agreement by which Alumax terminated Allen. Alumax also attached a copy of Allen’s grievance report and the arbitrator’s opinion and award.

Alumax attached excerpts from Allen’s deposition testimony. This testimony showed that Allen did not know the reason Alumax took him off the seniority list. He testified he believed he was taken off the list because he filed a workers’ compensation claim and had an attorney. He testified he believed this was so because he never knew anyone else to get fired for being off a certain time and because he could not see any other reason he was taken off the list.

Alumax’s summary judgment proof shows that it followed a collective bargaining agreement procedure in a nondiscriminatory manner when it terminated Allen. Allen asserted in his deposition his subjective belief that Alumax terminated him because he filed a workers’ compensation claim and because he could think of no other reason for his termination. Allen offered no affidavits or other evidence showing how his claim for benefits was a determining factor in his discharge. Some evidence of a causal connection beyond a plaintiff’s subjective belief is required. See Hunt, 711 S.W.2d at 80. Allen made no showing that raised a fact issue about Alumax’s evidence showing no link between the two events.

On appeal, Allen attacks Alumax’s summary judgment evidence. Allen contends the branch manager was an interested witness and that his affidavit was self-serving. Allen argues the affidavit was not in conformity with article 8307c claim. We overrule Allen’s second point of error.

*5 We reverse the trial court’s judgment for further proceedings on the allegations of tortious interference. We affirm the trial court’s judgment on the article 8707c claim.

Do Not Publish

Tex. R. App. P. 90

Footnotes

1

Unless otherwise indicated, all statutory references are to articles 8306-8309 of the Texas Revised Civil Statutes. See TEX. REV. CIV. STAT. ANN. arts. 8306-8309 (Vernon 1967 & Supp. 1992).

End of Document
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