Court of Appeals of Texas, Dallas.

Robert Wayne PRZYBYLSKI, Appellant,

v.

OTIS ELEVATOR CO., Appellee.

No. 05-92-02291-CV.

|

January 13, 1994

Before BAKER, MALONEY and WHITTINGTON, JJ.

BAKER, Justice.

O P I N I O N

*1 Przybylski sued Otis Elevator for wrongful discharge under article 8307c of the Workers’ Compensation Act. TEX. REV. CIV. STAT. ANN. art. 8307c (Vernon Supp. 1992) (repealed 1993).¹ Otis moved for summary judgment based on election of remedies and estoppel. The trial court granted Otis’ summary judgment motion. Przybylski contends the trial court erred by granting Otis’ summary judgment motion. Przybylski claims that Otis did not prove each element of estoppel or election of remedies as a matter of law. He also claims that genuine issues of material fact exist about Otis’ defenses of election of remedies and estoppel. We reverse the trial court’s judgment and remand the cause for further proceedings.

FACTUAL BACKGROUND

Przybylski began working for Otis in 1964. He left Otis in 1979 and moved to Dallas. Otis rehired him in May 1979 to work on a maintenance route. In November 1986, Przybylski injured his back at work. He filed a workers’ compensation claim. He received a release from his doctor to return to work in September 1987.

October 1989, Otis discharged Przybylski because of lack of available work. The day after Przybylski’s discharge, a younger man was working Przybylski’s route.

After his discharge, Przybylski filed a sworn age discrimination claim against Otis with the Equal Employment Opportunity Commission and the Texas Commission on Human Rights. In each claim, Przybylski swore Otis discriminated against him because of his age, forty-nine. He did not mention a workers’ compensation claim as a reason Otis discharged him.

In September 1990, Przybylski and Otis negotiated a settlement of the age discrimination charge. Przybylski accepted pay for ninety-two hours of work. In return he agreed not to file a lawsuit on the age discrimination charge. In October 1991, Przybylski filed an article 8307c claim in state court. He claimed Otis discharged him because he filed claims under the Texas Workers’ Compensation Act.

Otis moved for summary judgment asserting the defenses of estoppel and election of remedies. Otis claimed that these doctrines barred Przybylski from claiming Otis discharged him in violation of article 8307c. Otis based its defenses on Przybylski’s sworn statements that Otis discharged him because of his age. Otis also asserted Przybylski elected his remedy when he settled his age discrimination suit. The trial court granted Otis summary judgment.

STANDARD OF REVIEW

The standards we apply in reviewing summary judgment rulings are:

1. The movant has the burden to show no genuine issue of material fact and its entitlement to judgment as a matter of law.

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

3. We indulge every reasonable inference for the nonmovant and resolve any doubts in his favor.

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 is a method of summarily ending a case that involves only a question of law and no genuine fact issues. Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557, 563 (1962). The trial court’s duty is to determine if there are any fact issues to try, not to weigh evidence or determine its credibility. A trial court cannot try the case on affidavits. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 931 (1952).

The purpose of the summary judgment rule is to end claims patently without merit or untenable defenses. If the trial court must resolve factual issues to enter judgment, then the summary judgment is neither authorized nor proper. Starnes v. Holloway, 779 S.W.2d 86, 90 (Tex. App.-Dallas 1989, writ denied). Application of the rule must not deprive litigants of their right to a full hearing on any real fact issue. 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. The movant must conclusively prove all essential elements of its cause of action or defense as a matter of law. Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex. 1972). A movant must expressly present his grounds for summary judgment in his motion. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993).

A nonmovant need not answer or respond to a motion for summary judgment to contend on appeal that the grounds expressly presented by the movant’s motion are not enough, as a matter of law, to support summary judgment. However, the nonmovant may not raise any other issue as grounds for reversal. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979).

DEFENSIVE THEORIES

A. Judicial Estoppel

Under the theory of judicial estoppel, one cannot allege or admit facts in a later proceeding the contrary of which he made under oath in a former proceeding. Long v. Knox, 155 Tex. 581, 291 S.W.2d 292, 295 (1965); Holloway v. Holloway, 671 S.W.2d 51, 59 (Tex. App.-Dallas 1983, writ dism’d).

B. Quasi Estoppel

Courts developed quasi estoppel as a related concept to equitable and judicial estoppel. This concept prevents a party from retaining a benefit by asserting a position to the disadvantage of another and then asserting a right that is inconsistent with that previous position. Stimpson v. Plano Indep. School Dist., 743 S.W.2d 944, 946 (Tex. App.-Dallas 1997, writ denied); El Paso Nat. Bank v. SW Numismatic Investment Group, 548 S.W.2d 942, 948 (Tex. Civ. App.-El Paso 1977, no writ). The doctrine applies when it would be unconscionable to allow a person to maintain a position inconsistent with one in which he agreed, or of which he accepted a benefit. Steubner Realty 19, Ltd. v. Cravens Road 88, Ltd., 817 S.W.2d 160, 164 (Tex. App.-Houston [14th Dist.] 1991, no writ).

*3 Quasi estoppel does not require the party to make a false representation or that the other party detrimentally rely on the representation. Stimpson, 743 S.W.2d at 946. Unlike judicial estoppel, the party does not have to take the previous position in a judicial proceeding. Stimpson, 743 S.W.2d at 946.

C. Election of Remedies

Election of remedies bars relief when one exercises an informed choice between two or more remedies, rights, or states of facts that are so inconsistent that to allow relief is manifestly unjust. Ramirez v. Pecan Deluxe Candy Co., 839 S.W.2d 101, 106 (Tex. App.-Dallas 1992, writ denied); Bocanegra v. Aetna Life Ins. Co., 605 S.W.2d 848, 851 (Tex. 1980). Election of remedies applies only if the party made the choice with a full and clear understanding of the problem, facts, and remedies essential to the exercise of an intelligent choice. Ramirez, 837 S.W.2d at 106.

THE ISSUE

Przybylski claims his cause of action stems from a single discharge that involved a combination of different motives. He contends these motives included both age discrimination and discrimination under article 8307c. Otis contends Przybylski’s positions are inconsistent and allow a double recovery. Otis argues election of remedies or estoppel bars Przybylski’s suit under article 8307c.

Otis raises judicial estoppel, quasi estoppel, and election of remedies as defenses. Central to these three defensive theories is whether Przybylski’s positions are inconsistent with each other. Inconsistency of the positions is determinative of whether there is a bar to Przybylski’s claims.

NATURE OF PRZYBYLSKI’S CLAIMS

A. Age Discrimination Claim

Under the Age Discrimination in Employment Act of 1967 (ADEA) a party need not show that age discrimination was the sole cause of discharge. Geller v. Markham, 635 F.2d 1027, 1035 (2nd Cir. 1980), cert. denied, 451 U.S. 945 (1981). Where an employer acts out of mixed motives in discharging an employee, the plaintiff must show that age was a determinative factor. A determinative factor is one that made a difference in deciding whether the employer should discharge the employee. Geller, 635 F.2d at 1035; see also Price Waterhouse v. Hopkins, 490 U.S. 228, 241 (1989).

The employer can avoid liability if it can prove that, without the discriminatory factor, it would have reached the same decision about a particular employee. Price Waterhouse, 490 U.S. at 242. The employee can then show that the employer’s neutral reasons are not true reasons but only pretexts. Waggoner v. City of Garland, 987 F.2d 1160, 1164 (5th Cir. 1993).

In Texas, an employee claiming discriminatory termination must file a complaint with the Texas Commission of Human Rights (TCHR). If the commission does not resolve the claim within 180 days, it will issue a notice of right to sue to the employee. See TEX. REV. CIV. STAT. ANN. art. 5221k § 7.01(a) (Vernon 1987) (repealed 1993).² Then the employee can sue the employer for wrongful discharge.

*4 Under the Age Discrimination in Employment Act, an employee must first file charges with the Equal Employment Opportunity Commission (EEOC). If the Commission does not resolve the claim within 180 days, the Commission will issue a notice of right to sue. Then the employee can sue the employer for wrongful discharge. See 42 U.S.C. § 2000e-5(e) (1981) (amended 1993).³

B. Article 8307c Claim

To successfully prosecute an 8307c claim, an employee must prove a causal link between discharge and the filing of the workers’ compensation claim. Trevino v. Corrections Corp. of America, 850 S.W.2d 806, 808 (Tex. App.-El Paso 1993, writ denied). An employee does not have to prove that the discharge was solely because of a workers’ compensation claim. Azar Nut Co. v. Caille, 720 S.W.2d 685, 687 (Tex. App.-El Paso 1986), aff’d 734 S.W.2d 667 (Tex. 1987). To avoid liability, the employer must then show a legitimate reason for discharge. See Palmer v. Miller Brewing Co., 852 S.W.2d 57, 61 (Tex. App.-Fort Worth 1993, writ denied).

APPLICATION OF LAW TO THE FACTS

Przybylski first contends there is no judicial estoppel because the EEOC settlement was not a judicial proceeding. We disagree. A quasi judicial proceeding by an administrative agency is a judicial proceeding for purposes of judicial estoppel. See Callanan Road Improvement Co. v. United States, 345 U.S. 507, 513 (1953); Czajkowski v. City of Chicago, Ill., 810 F.Supp. 1428, 1435 (N.D. Ill. 1992); Zapata Gulf Marine Corp. v. Puerto Rico Maritime Shipping Auth., 731 F.Supp. 747, 750 (E.D. La. 1990).

The determinative issue raised by Przybylski is whether Otis proved as a matter of law that Przybylski’s positions are inconsistent with each other. Judicial estoppel, quasi estoppel, and election of remedies all require that the two positions taken by the other party are inconsistent. Otis’ burden on summary judgment was to prove all elements of its defensive theories as a matter of law. If Otis did not prove as a matter of law that the two positions were inconsistent, then the trial court erroneously granted the summary judgment.

Otis supported its summary judgment motion with excerpts from Przybylski’s deposition, his sworn statement to the EEOC and TCHR, a grievance filed with his union about Otis discharging him, letters sent to Otis for Przybylski, letters about other employment opportunities at Otis, and the negotiated settlement agreement. In his deposition, Przybylski admits that he knew he was going to bring the article 8307c suit when he settled his age discrimination claim against Otis.

Otis points out that Przybylski never raised his filing of workers’ compensation claims as a reason for his discharge. Otis concludes Przybylski’s statements that Otis discharged him because of his age bar him from bringing the 8307c claim.

*5 Otis’ summary judgment evidence does not prove as a matter of law that Otis discharged Przybylski solely because of his age. Additionally, Otis’ summary judgment evidence does not prove as a matter of law that Przybylski claimed the sole reason for his discharge was his age.

We conclude that Przybylski’s age discrimination claim and his article 8307c claim are not inconsistent. More than one reason can motivate an employer when discharging an employee. Geller, 635 F.2d at 1035; Azar Nut Co., 720 S.W.2d at 687. Under either ADEA or article 8307c an employee does not have to show the particular discrimination is the sole cause for the discharge. Geller, 635 F.2d at 1035; Azar Nut Co., 720 S.W.2d at 687.

Claiming age discrimination and retaliation for filing a workers’ compensation claim are not inconsistent legal positions. Otis did not carry its burden to prove all essential elements of its defensive theories as a matter of law. The trial court erred in granting Otis’ summary judgment motion. We sustain Przybylski’s points of error two and four.

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

	Footnotes
1		TEX. REV. CIV. STAT. ANN. art. 8307c (Vernon Supp. 1992) was repealed and recodified in the Texas Labor Code, 1993, 73rd Leg., R.S., ch. 269, § 1, 1993 Tex. Sess. Law Serv. 7 (Vernon), effective September 1, 1993. Sections 451.001-.003 of the Texas Labor Code contain the provisions of article 8307c. The recodification did not change the substantive law.
2		Repealed by Acts 1993, 73rd Leg., R.S., ch. 269, § 5(1), 1993, Tex. Sess. Law Serv. 7 (Vernon), effective September 1, 1993. Provisions of article 5221k dealing with the requirement of receipt of a notice to sue before a plaintiff can file a civil suit is recodified without substantive changes in section 21.252 of the Texas Labor Code.
3		Congress amended 42 U.S.C. § 2000e-5(e) effective September 1, 1993. The portion of 42 U.S.C. § 2000e-5(e) about notices of right to sue was moved to 29 C.F.R. § 1601.28 (1993) (EEOC regulations). There is no substantive change to the provisions.