Court of Appeals of Texas, Dallas.

David DENINGER, Appellant

v.

VOUGHT AIRCRAFT COMPANY, Appellee.

No. 05-95-00469-CV.

|

April 30, 1996.

Before KINKEADE, JAMES and WRIGHT, JJ.

OPINION

JAMES, Justice.

*1 David Deninger appeals from a summary judgment granted in favor of Vought Aircraft Company. Deninger brought suit against Vought claiming wrongful termination, intentional infliction of emotional distress, and defamation. In a single point of error, Deninger contends the trial court erred in granting Vought’s motion for summary judgment because: (1) his claims are not preempted by section 301 of the Labor Management Relations Act¹; and (2) material fact issues preclude summary judgment. In a single cross-point of error, Vought contends the evidence submitted by Deninger in response to its motion for summary judgment is not competent summary judgment evidence. Because we conclude Deninger’s claims for intentional infliction of emotional distress and defamation are preempted by section 301, and because we conclude there are no material issues of fact about the wrongful discharge claim, we affirm the trial court’s judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Deninger began working for Vought in 1985.² Immediately after his employment with Vought, Deninger joined the United Automobile, Aerospace, and Agricultural Implement Workers of America (UAW), and remained a member throughout his employment at Vought. UAW and Vought negotiated and executed a collective bargaining agreement (CBA) covering the terms and conditions of Deninger’s employment with Vought.

Deninger held several positions with Vought. Deninger changed positions because of an on-going reduction in the workforce and due to medical restrictions for work-related eye and back injuries. Deninger filed workers’ compensation claims for the eye and back injuries, which occurred in May 1989 and July 1991. These claims were settled in August 1992.

During his employment Deninger received numerous disciplinary warnings about his attendance and job performance. Deninger was placed on suspension for several days in 1992 for fighting with a co-worker.

In February 1993, Lynn Manning filed a sexual harassment claim against Deninger. Vought investigated Manning’s complaint. The security investigator and the dignity in the workplace coordinator interviewed several people about the incident; including Manning, Deninger, and other employees from the same work unit. The investigation was delayed for about thirty days because Deninger was out sick.

In late March 1993, Steve Freidlin, Vought’s labor relations representative, met with Vought’s labor relations manager, the dignity in the workplace coordinator, another labor relations representative, and the chairman of the UAW’s grievance committee to determine if action should be taken about Manning’s complaint. They determined that Deninger should be discharged based upon his harassing conduct and his poor work performance. Freidlin testified that Deninger’s workers’ compensation claims were not discussed at the meeting; they determined to discharge Deninger solely because of his harassment of Manning and his poor work performance.

*2 On April 6, 1993, Freidlin, several management and union representatives, and Deninger’s supervisor met with Deninger. Freidlin told Deninger he was being discharged for engaging in sexually harassing behavior.³ Deninger was given a written notice of termination which stated:

You are hereby notified of your termination effective this date for your violation of the Company Code of Conduct. You are being terminated for your violation of Rule # 1 under the Personal Conduct Section, which reads, “any behavior that may be perceived as harassment is prohibited.”

The conduct demonstrated by you on February 23, 1993, involving a female employee, unreasonably interfered with an individual’s work performance and created an intimidating, hostile, and offensive working environment. The actions carried out by you are not conducive to a positive work environment; thus resulting in your termination.

Deninger refused to sign the written notice of termination.

The UAW filed a grievance under the CBA protesting Deninger’s discharge. The UAW later withdrew the grievance, and told Deninger he could appeal the withdrawal. Deninger did not pursue the grievance. Deninger does not complain of the UAW’s representation of him during the grievance process.

Deninger filed suit in State court alleging: (1) he was discharged in retaliation for his workers’ compensation claims; (2) intentional infliction of emotional distress; and (3) defamation. Vought removed the suit to federal court based on preemption under section 301. The federal court determined Vought’s notice of removal was untimely and remanded the case back to state court.

Once back in state court, Vought filed a motion for summary judgment based on the following grounds: (1) preemption; (2) failure to exhaust contractual claims under the CBA; (3) the UAW did not breach its duty of fair representation; (4) failure to establish extreme and outrageous conduct or severe emotional distress; (5) the allegedly defamatory statements are true, substantially true, or opinion; (6) the allegedly defamatory statements were made within the scope of a qualified privilege and Deninger cannot prove malice as a matter of law; (7) there was no publication or compelled publication to third parties; and (8) Deninger was discharged for legitimate, non-retaliatory reasons and Deninger cannot establish the reasons were pretextual.

Deninger responded contending his claims were not preempted, and fact issues precluded summary judgment. Vought filed objections and a motion to strike Deninger’s summary judgment evidence. The record does not contain written rulings on Vought’s objections or motion to strike, however, Vought attempted to secure rulings by the trial court on several occasions and filed written objections to the court’s refusal to rule on the objections and motion to strike. The trial court signed an order granting Vought’s motion for summary judgment. The portion of the order submitted to the trial court pertaining to the wrongful discharge claim was stricken. Vought filed a motion to modify, correct, or reform the judgment asking the trial court for a specific ruling on the wrongful discharge claim. Before the trial court made a ruling on Vought’s motion to modify, Deninger appealed. We questioned our jurisdiction over the appeal because of the lack of an express ruling on the wrongful discharge claim. The trial court rescinded the prior order granting the motion for summary judgment, and ordered summary judgment in favor of Vought that plaintiff take nothing on all of plaintiff’s claims. The order does not specify the ground or grounds on which it is based.

SUMMARY JUDGMENT

Standard of Review

*3 The function of summary judgment is not to deprive a litigant of the right to a full hearing on the merits of any real issue of fact but to eliminate patently unmeritorious claims and untenable defenses. See Gulbenkian v. Penn, 252 S.W.2d 929, 931 (Tex.1952). In reviewing a summary-judgment record, this Court applies the following standards:

1. The movant for summary judgment has the burden of showing that 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, evidence favorable to the nonmovant will be taken as true.

3. Every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in his favor.

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

The purpose of the summary-judgment rule is not to provide either a trial by deposition or a trial by affidavit, but to provide a method of summarily terminating a case when it clearly appears that only a question of law is involved and that no genuine issue of fact remains. See Gaines v. Hamman, 358 S.W.2d 557, 563 (Tex.1962). For the defendant, as movant, to prevail on a summary judgment, it must either disprove at least one element of the plaintiff’s theory of recovery or plead and conclusively establish each essential element of an affirmative defense, thereby rebutting the plaintiff’s cause of action. See International Union United Automobile, Aerospace & Agricultrual Implement Workers of Am., Local 119 v. Johnson Controls, Inc., 813 S.W.2d 558, 563 (Tex.App.-Dallas 1991, writ denied) (op. on reh’g). An issue is conclusively established if ordinary minds cannot differ as to the conclusion to be drawn from the evidence. See Triton Oil & Gas Corp. v. Marine Contractors & Supply, Inc., 644 S.W.2d 443, 446 (Tex.1982).

When the motion for summary judgment alleges more than one basis of support, and the order granting summary judgment does not specify the ground or grounds relied on for the ruling, we will affirm the summary judgment if any of the theories advanced are meritorious. Rogers v. Ricane Enter., Inc., 772 S.W.2d 76, 79 (Tex.1989).

PREEMPTION

Deninger contends that the trial court erred in granting Vought’s motion for summary judgment on the affirmative defense of preemption because: (1) Vought did not establish the code of conduct is linked to the CBA; and (2) his claims can be resolved without interpreting the CBA.

The Code of Conduct

Deninger contends there is no summary judgment evidence that shows resolution of the facts of this case require an interpretation of the CBA. Deninger contends that Freidlin’s affidavit does not establish how the facts of this case require interpretation of the CBA, and that Vought did not bring forward summary judgment evidence linking the CBA to the code of conduct. Therefore, Vought failed to establish that section 301 preempts his state law claims.

*4 Vought responds that any state law claims challenging disciplinary actions taken pursuant to Vought’s work rules necessarily implicate the terms of the CBA and are preempted. Vought’s summary judgment evidence includes the CBA and the code of conduct. Article II of the CBA states in pertinent part:

In addition to other functions and responsibilities not specifically mentioned in this paragraph, the Company has and will retain the sole right and responsibility to direct the operations of the Company. This includes … responsibility for selecting, hiring, and demoting employees as well as making and applying rules and regulations for production, discipline, efficiency and safety.

The code of conduct contains work rules and guidelines adopted by Vought concerning discipline, efficiency, safety, and production. Policies and procedures promulgated pursuant to a CBA are incorporated as part of the agreement between the company and the union. General Drivers, Warehousemen, & Helpers Local Union 968 v. Sysco Food Serv., Inc., 838 F.2d 794, 796 n. 1 (5th Cir.1988); International Union of Elec. Radio v. Ingram Mfg., 715 F.2d 886, 891 (5th Cir.1983), cert. denied, 466 U.S. 928 (1984). The code of conduct was promulgated by Vought pursuant to Article II of the CBA. Therefore, the code of conduct is incorporated as part of the CBA. Thus, Vought’s summary judgment evidence establishes that if Deninger’s state law claims require interpretation of the code of conduct, his claims require interpretation of the CBA.

Interpretation of the CBA

Applicable Law

Section 301 provides that suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce may be brought in federal court. Section 301 not only provides federal court jurisdiction over controversies involving collective-bargaining agreements, but also authorizes federal courts to fashion a body of federal law for the enforcement of the collective-bargaining agreements. Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 403 (1988). Section 301 intended doctrines of federal labor law to prevail over inconsistent local rules. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 209-10 (1985). Thus, section 301 preempts state law if the resolution of the state law claim depends upon the meaning of a collective-bargaining agreement. Lingle, 486 U.S. at 406.

If proof of the state law claim is substantially dependent upon an interpretation of a collective-bargaining agreement, the claim will be preempted. Allis-Chalmers, 471 U.S. at 209-10. If, however, the state law rights and obligations are independent of the collective-bargaining agreement, section 301 does not preempt state law. Lingle, 486 U.S. at 407. An action for retaliatory discharge for workers’ compensation claims involves questions of state law not requiring interpretation of the collective bargaining agreement. Therefore, it is not preempted by section 301. Lingle 486 U.S. at 407, 413.

Application

1. Wrongful Discharge

*5 Deninger’s wrongful discharge claim is based on article 8307c of the Workers’ Compensation Act which provides:

No person may discharge or in any other manner discriminate against an employee because the employee has in good faith filed a claim, hired a lawyer to represent him in a claim, instituted or caused to be instituted, in good faith, any proceeding under the Texas Workmen’s Compensation Act, or has testified or is about to testify in any such proceedings.

See Act of April 22, 1971, 62nd Leg., R.S., ch. 115 § 1, 1971 Tex. Gen. Laws 884, 884-85, amended by Act of May 11, 1993, 73rd Leg., ch 269, § 1, 1993 Tex. Gen. Laws 987, 1235-36 (current version at Tex. Lab.Code Ann. §§ 451.001-.003 (Vernon pamph.1995)).

Deninger is not required to show that his discharge was solely because of his workers’ compensation claims in order to maintain a successful action under article 8307c. It is necessary to show only that his workers’ compensation claims were a determining factor in his discharge. 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); Hunt v. Van Der Horst Corp., 711 S.W.2d 77, 79 (Tex.App.-Dallas 1986, no writ).

Deninger does not dispute that the CBA prohibits sexual harassment. He contends that his discharge for sexual harassment was a pretext, and that he was not discharged solely for legitimate, non-retaliatory reasons. He contends that he was discharged at least in part because of his workers’ compensation claims. Because discharge in retaliation for workers’ compensation claims does not have to be the sole reason for discharge, to address his state law claim for wrongful discharge we must determine only if Deninger’s workers’ compensation claims were a determining factor in his discharge. We need not determine whether Deninger’s discharge for sexual harassment was lawful or unlawful. Thus, Deninger’s claim of retaliatory discharge does not require us to interpret the CBA and section 301 does not preempt Deninger’s claim for wrongful discharge based on retaliation. See Lingle, 486 U.S. at 407.

2. Intentional Infliction of Emotional Distress

Deninger’s claim for intentional infliction of emotional distress is based on his allegations of Vought’s “long term conduct” toward Deninger including: (1) monitoring his actions more strictly than other workers; (2) his supervisors’ hostility toward Deninger; (3) his supervisors being “out to get him;” (4) job assignments which left him in dangerous situations; and (5) the sexual harassment claim was factually weak and unsupported and Vought still went ahead with his termination. In response, Vought contends that because Deninger challenges the strength of the sexual harassment claim, we must interpret the CBA. We agree with Vought.

The National Labor Relations Act does not protect outrageous conduct, threats, and intimidation leading to damages for intentional infliction of emotional distress. Regardless of whether conduct is lawful or unlawful under federal statutes, there is no federal protection for conduct which is so outrageous that no reasonable man in a civilized society should be expected to endure it. Farmer v. United Brotherhood of Carpenters & Joiners of Am., Local 25, 430 U.S. 290, 301 (1977). If the tort claim is premised on the abusive manner in which discrimination is accomplished or threatened, rather than a function of the actual or threatened discrimination itself, then the tort is not preempted. Farmer, 430 U.S. at 305.

*6 Deninger’s claim for intentional infliction of emotional distress is premised, at least in part, on Vought’s decision to proceed with termination even though the sexual harassment claim was poorly investigated and factually weak. Thus, his complaint implicates whether Vought was entitled to terminate him for sexual harassment. This is not a claim about the manner in which Vought accomplished discrimination toward him, it is about the discrimination itself. Because we must interpret the rules of conduct, and thus the CBA, to determine whether Vought was entitled to discharge Deninger, section 301 preempts Deninger’s intentional infliction of emotional distress claim.

3. Defamation

In his petition, Deninger contends that Vought defamed him by accusing him of sexually harassing a fellow employee because “he did not do what Vought alleged.” In addition, Deninger contends he was terminated for creating a hostile environment and this information was published to workers. Lastly, he contends he was forced to self-publish the defamatory reason for his discharge during a job interview at Bell Helicopter.

Deninger’s claims for defamation are premised, at least in part, on the falseness of the sexual harassment claim. Because Deninger complains that the termination itself constitutes defamation, his defamation claims are essentially an attack on the falsity of the sexual harassment claim. Therefore, Deninger’s defamation claim is premised on the lawfulness of his termination for sexual harassment, a claim which is not independent of the collective-bargaining agreement. We conclude Deninger’s claim for defamation is substantially dependent upon an interpretation of the rules of proscribed employee conduct, and thus the CBA. Therefore, section 301 preempts Deninger’s claim for defamation. See Lingle, 486 U.S. at 407.

RETALIATORY DISCHARGE

Applicable Law

As previously noted, Deninger bases his claim for retaliatory discharge on article 8307c of the Workers’ Compensation Act which provides a cause of action for an employee who has been discharged by his employer in retaliation for asserting his rights under the workers’ compensation statute. Deninger is not required to show that his discharge was solely because of his workers’ compensation claims in order to maintain a successful action under article 8307c. It is necessary only to show that his workers’ compensation claims were a determining factor in his discharge. Azar Nut Co., 720 S.W.2d at 687; Hunt, 711 S.W.2d at 79.

An employer who has been sued under article 8307c for wrongfully discharging an employee may obtain summary judgment if it shows, by appropriate summary judgment evidence, that there was no causal link between the employee’s compensation claim and the employee’s termination. Trevino v. Corrections Corp. of Am., 850 S.W.2d 806, 808 (Tex.App.-El Paso 1993, writ denied); see Hunt, 711 S.W.2d at 79. The defending employer is entitled to summary judgment if it establishes a legitimate, non-discriminatory reason for the discharge, and the employee fails to produce any evidence of retaliatory motive. Texas Division-Trantor, Inc. v. Carrozza, 876 S.W.2d 312, 313 (Tex.1994). The mere subjective belief of an employee that he was discharged because of his participation in workers’ compensation proceedings is not sufficient to controvert competent summary judgment evidence of a neutral explanation for discharge. Trantor, 876 S.W.2d at 313-14.

Application

*7 Deninger contends that Vought is not entitled to summary judgment on his wrongful discharge claim because he raised a fact issue about the reasons for his discharge. Deninger contends that his summary judgment evidence shows that his “discharge was pretextual because the investigation did not justify the termination and the animus was due at least in part to Deninger’s going to medical for work related injuries.” Deninger relies on: (1) the weakness of the evidence about the sexual harassment claim; (2) an entry on Deninger’s clinic records that Freidlin called about Deninger’s excessive time in medical; and (3) that Vought was “out to get” Deninger.⁴

Vought contends it established its right to summary judgment by disproving the causal connection element of Deninger’s workers’ compensation retaliatory discharge claim and Deninger failed to raise a fact issue on this point. Vought relies on Freidlin’s affidavit to show a neutral explanation for the discharge. In his affidavit, Freidlin testified that in late March 1993, he met with Vought’s labor relations manager, the dignity in the workplace coordinator, another labor relations representative, and the chairman of the UAW’s grievance committee to determine what action should be taken about Deninger. They determined that Deninger should be discharged based upon his harassing conduct and his poor work performance. Freidlin testified that at no time were Deninger’s workers’ compensation claims discussed, and the claims were not considered in the determination to discharge Deninger. Freidlin testified Deninger was discharged based solely on his harassment of Manning and his poor performance record.

We conclude Deninger’s summary judgment evidence completely fails to link his discharge to his workers’ compensation claims. The weakness of the evidence supporting the sexual harassment claim merely attacks the validity of Vought’s stated reason for discharge, it does not in any way implicate retaliation for workers’ compensation claims. Nor does the fact that supervisors at Vought were “out to get” Deninger implicate workers’ compensation claims. There is no summary judgment evidence suggesting that the reason the supervisors disliked Deninger was because of his workers’ compensation claims. Concern about Deninger’s “excessive time in medical” does not constitute evidence that Vought’s motivation in discharging him was linked to displeasure about workers’ compensation claims. Displeasure with medical restrictions or time away from work is not the same as displeasure with filing workers’ compensation claims. We conclude Deninger failed to raise a fact issue on the causal connection element of his workers’ compensation retaliatory discharge claim. Thus, the trial court properly granted Vought’s motion for summary judgment. We overrule Deninger’s sole point of error.

Accordingly, we affirm the trial court’s judgment.

	Footnotes
1		29 U.S.C.A. 185(a) (West 1978). For convenience, all future references will be to section 301.
2		Deninger began his employment at LTV Aerospace and Defense Company, the predecessor to Vought Aircraft Company. We will refer to LTV and Vought collectively as “Vought.”
3		In his affidavit, Freidlin claims he told Deninger he was being discharged for sexually harassing behavior and poor work performance. Deninger’s deposition and affidavit state he was told only of the sexually harassing behavior.
4		Even assuming all of Deninger’s summary judgment evidence was competent, we conclude it is insufficient to raise an issue of material fact, thus we need not address Vought’s cross-point of error one. See Tex.R.App. P. 90.