Court of Appeals of Texas, Dallas.

Michael JONES, Appellant

v.

The CITY OF MCKINNEY, Texas, Appellee

No. 05-94-00720-CV

|

March 20, 1995

Before BAKER, LAGARDE, and CHAPMAN, JJ.

Opinion

PER CURIAM

*1 Jones sued the City for wrongful discharge under article 8307(c) of the Texas Workers’ Compensation Act. The trial court ordered that Jones take nothing, because the City had sovereign immunity. Jones contends the trial court erred in finding the City immune. We disagree. We affirm the trial court’s judgment.

FACTS AND PROCEDURAL BACKGROUND

The City employed Jones as a fire fighter. Jones injured his back while on the job. He filed and settled a workers’ compensation claim. Later, the City offered Jones a job as a dispatcher. However, Jones refused this position, because his doctor declared him permanently disabled, and he was physically unable to perform a dispatcher’s duties. The City then fired Jones. After his discharge, Jones’s doctor declared him no longer disabled and able to perform the duties of a fire fighter. However, another doctor determined Jones had a permanent weak link in his back that increased his risk of reinjury. The City declined to reinstate Jones as a fire fighter.

Later, Jones sued the City, claiming violation of article 8307(c) of the Texas Workers’ Compensation Act. Specifically, Jones maintained that the City fired him because he filed a workers’ compensation claim. He also contended that he could perform the duties of a fire fighter and sought reinstatement.

At trial, the jury concluded Jones’s discharge was retaliatory. The jury awarded Jones $100,000 for mental anguish and $16,000 for lost wages. The jury also determined Jones could not perform the duties of a fire fighter at the time of his discharge. The trial court ordered a remittitur of the $16,000 because Jones already recovered lost wages in his workers’ compensation settlement. The trial court then set aside the jury’s verdict on the grounds of sovereign immunity. The trial court granted the City a take-nothing judgment.

JONES’S CONTENTIONS

Jones contends the trial court erred in finding the City sovereignly immune. Jones maintains that the court erred in ordering the remittitur. He further claims there is no evidence, or insufficient evidence, to support the finding that he cannot perform the duties of a fire fighter.

APPLICABLE LAW

This Court, in Classen v. Irving Health Care System, 868 S.W.2d 815, 821 (Tex. App.-Dallas 1993, writ requested), recognized sovereign immunity as an affirmative defense to an article 8307(c) wrongful discharge claim. See Classen, 868 S.W.2d at 821. However, appellant requests we reconsider our decision in Classen. Appellant urges that we adopt the holding of Barfield v. City of LaPorte, 849 S.W.2d 842, 846 (Tex. App.-Texarkana 1993, writ granted), which concludes that sovereign immunity is not a defense to an article 8307(c) claim. See Barfield, 849 S.W.2d at 846. We decline to do so.

CONCLUSION

Following our decision in Classen, we conclude that the City is sovereignly immune from Jones’s article 8307(c) claim. See Classen, 868 S.W.2d at 821. We overrule point of error one.

*2 The disposition of point of error one makes it unnecessary for us to consider Jones’s remaining points. Nor do we need to consider the City’s seven crosspoints of error.

We affirm the trial court’s judgment.

Chapman, J., dissenting

*2 I respectfully dissent for the reasons I stated in Classen v. Irving Healthcare System, 868 S.W.2d 815, 822 (Tex. App.-Dallas 1993, writ requested) (Chapman, J., dissenting), which agreed with the holding in Barfield v. City of LaPorte, 849 S.W.2d 842 (Tex. App.-Texarkana 1993, writ granted).