Court of Appeals of Texas, Amarillo.

Derral NOBLE, Appellant,

v.

SOUTHWESTERN PUBLIC SERVICE COMPANY, Appellee.

No. 07-97-0212-CV.

|

Dec. 23, 1998.

Before DODSON, QUINN and REAVIS, JJ.

OPINION

DODSON.

*1 Derral Noble (Noble), appellant, appeals an order granting Southwestern Public Service Company (SPSC), appellee, a directed verdict in Noble’s suit for retaliatory discharge and disability discrimination. Noble contends by eight points of error that the trial court erred in granting the motion for directed verdict as to his two causes of action. We affirm in part and reverse in part.

Derral Noble was employed by SPSC from about 1978 until he was taken off active work status on April 25, 1992. For the majority of that time, Noble held the position of journeyman mechanic or maintenance journeyman. On April 29, 1991, Noble injured his knee. Two or three days later, he consulted with Dr. James Rogers about the injury. In June of 1991, Noble underwent knee surgery. He was released to return to work in September of 1991, but his knee problems persisted. After consulting with Dr. Rogers again, Noble was placed on restricted duty at work. While on restricted duty, Noble was paid his fully salary.

On March 4, 1992, Noble filed a notice of injury and claim for compensation with the Texas Workforce Commission. On March 25, 1992, Dr. Rogers determined that Noble had reached maximum medical improvement (MMI) and had an impairment rating of 10%. SPSC learned of Dr. Roger’s determination on April 20, 1992. On April 25, 1992, SPSC sent Noble home to begin a six month waiting period before he could be eligible for SPSC’s long term disability plan. During those six months, Noble received reduced pay.

Noble filed suit against SPSC asserting a violation of § 8307c Texas Revised Statutes and that SPSC discriminated against him in violation of the Texas Commission on Human Rights Act. When Noble rested at trial, SPSC filed a motion for directed verdict. The court granted the motion on both claims. Noble appealed.

Directed Verdict

The standards of review of a directed verdict case are well established. A party is entitled to a directed verdict when reasonable minds can draw only one conclusion from the evidence. The task of an appellate court in such a case is to determine whether there is any evidence of probative force to raise fact issues on the material questions presented. The reviewing court must consider all the evidence in the light most favorable to the party against whom the verdict was instructed, disregarding all contrary evidence and inferences. When reasonable minds may differ as to the truth of controlling facts, the issue must go to the jury. White v. Southwestern Bell Tel. Co., Inc., 651 S.W.2d 260, 262 (Tex.1983); Collora v. Navarro, 574 S.W.2d 65, 68 (Tex.1978).

Noble’s 8307C Claim

One of the two causes of action asserted by Noble was based on Texas Revised Statutes article 8307c, currently codified at Tex.Labor Code Ann. § 451.001. By his first point of error, Noble contends that the trial court erred in granting a directed verdict on his 8307c claim because the evidence established genuine issues of material fact regarding whether Noble was terminated or otherwise discriminated against because of the workers’ compensation proceeding. It is Noble’s position that there was ample evidence upon which the jury could have found that Noble was terminated or discriminated against because of the compensation claim. Since we conclude that there was circumstantial evidence of a causal relationship between the compensation claim and SPSC’s treatment of Noble, we sustain this point of error.

*2 Noble filed this action under article 8307c of the Texas Revised Civil Statutes. That act provided that:

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 Workers’ Compensation Act, or has testified or is about to testify in such a proceeding. Act of April 20, 1971, 62nd Leg., R.S., ch. 115, 1971 Tex.Gen.Laws 884, amended by Act of May 12, 1993, 73rd Leg., R.S., ch. 269, § 1, 1993 Tex.Gen.Laws 1235 (current version at Tex.Labor Code Ann. § 451.001 (Vernon 1996)).

The purpose of this statute is to protect persons who are entitled to benefits under the workers’ compensation statute and to prevent them from being discharged because they take steps to collect the benefits. Carnation Co. v. Borner, 610 S.W.2d 450, 453 (Tex.1980).

Under article 8307c, the employee has the burden of establishing a causal connection between the termination and his claim for worker’s compensation benefits. Paragon Hotel Corp. v. Ramirez, 783 S.W.2d 654, 658 (Tex.App.-El Paso 1990, writ denied). The standard of causation is that the employee’s protected conduct must be such that, without it, the employer’s prohibited conduct would not have occurred when it did. Continental Coffee Products Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996). Moreover, the employee need not prove that his participation in the protected activity was the sole cause for the adverse employment action. 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).

The employee’s burden may be carried by either direct or circumstantial evidence. Palmer v. Miller Brewing Co., 852 S.W.2d 57, 61 (Tex.App.-Fort Worth 1993, writ denied). Circumstantial evidence sufficient to establish the causal link between the termination and filing a compensation claim includes: (1) knowledge of the compensation claim by those making the decision on the termination, (2) expression of a negative attitude toward the employee’s injured condition, (3) failure to adhere to established company policies, (4) discriminatory treatment in comparison to similarly situated employees, (5) evidence that the state reason for the discharge was false. Palmer v. Miller Brewing Co., 852 S.W.2d at 61. Additionally, evidence of incentives to refrain from reporting on the job injuries has been held to constitute circumstantial evidence showing the causal connection. Investment Properties Management, Inc., v. Montes, 821 S.W.2d 691, 694-95 (Tex.App.-El Paso 1991, no writ).

Knowledge of the Compensation Claim

*3 It is undisputed that Noble was injured on April 29, 1991 and that SPSC had knowledge of that injury on that day or immediately thereafter. The record further shows that SPSC had knowledge in March of 1992 that Noble had filed a formal compensation claim. Moreover, the record shows that SPSC learned on or by April 20, 1992 that Noble’s doctor had declared Noble at MMI. Further, there was testimony from Gordon Benson, a Plant Services Supervisor for SPSC in 1992, that SPSC knew that when an injured worker was declared at MMI, a settlement would be forthcoming. Finally, it is uncontroverted that Noble was sent home from work on April 25, 1992, less than two months after he filed a formal compensation claim, and only five days after SPSC learned that he reached MMI.

Knowledge by the employer of the compensation claim does not in itself satisfy the Continental Coffee standard. Urquidi v. Phelps Dodge Refining Corp., No. 08-97-00097-CV, 1998 WL 354035 at *4 (Tex.App.-El Paso July 2, 1998, no pet. h.). Rather, it simply places the employee within the protected class, and must be considered with the other evidence. Id. However, in the matter before us, there was also evidence that SPSC knew of Noble’s situation for almost a year before he filed a formal compensation claim, and that within days of his formal claim, his status was changed from active duty to long term disability. See Southwestern Electric Power Co. v. Martin, 844 S.W.2d 229, 233 (Tex.App.-Texarkana 1992, writ denied)(noting that plaintiff was placed on long term disability at time in close proximity to protected compensation activity).

Under the applicable standards of review on a directed verdict, we must resolve all inferences in favor of the party against whom the verdict was directed. Szczepanik v. First S. Trust Co., 883 S.W.2d 648, 649 (Tex.1994). The close proximity of Noble’s compensation claim and the change in Noble’s status coupled with SPSC’s knowledge of the injury and the claim gives rise to an inference that Noble was forced out of employment because he filed a compensation claim. This inference is strengthened in light of the fact that Noble’s status as an active employee was essentially unchanged for a year after the injury, but that it changed within days of his compensation claim being filed. We conclude that there was evidence of probative value that raised a fact issue as to whether the change in Noble’s status would have occurred when it did without Noble filing a compensation claim. See Continental Coffee Products Co. v. Cazarez, 937 S.W.2d at 450. Accordingly, we sustain Noble’s first point of error.¹

By his second and third points of error, Noble further contends that the trial court erred in granting a directed verdict on his 8307c claim. Because our disposition of his first point of error requires a reversal of that portion of the order directing a verdict against him as to the 8307c action, we need not address his further contentions under these points.²

The Disability Discrimination Action

*4 By his fourth point of error, Noble asserts that the trial court erred in granting a directed verdict as to his claim under the Texas Commission on Human Rights Act because he met all the conditions precedent to filing the disability claim in state court and he properly exhausted his administrative remedies prior to filing suit. SPSC asserted that Noble failed to exhaust his administrative remedies under TCHRA, and that the trial court was consequently without jurisdiction to hear that action. Because we conclude that there was no evidence that Noble exhausted his administrative remedies under the Texas Act, the trial court was without jurisdiction and properly directed the verdict against him as to the disability discrimination claim.

First, we note that the filing of a complaint is a mandatory prerequisite to filing a civil action alleging violations of the TCHRA. Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483, 488 (Tex.1991). Additionally, for the purposes of determining whether a plaintiff has complied with the administrative requirements of the TCHRA, a party is generally not required to file separate federal and state complaints in different agencies. See Price v. Philadelphia American Life Insurance Co., 934 S.W.2d 771 (Tex.App.-Houston [14th Dist.] 1996, no writ). However, under the facts presented in the matter before us, we conclude that Noble has not shown exhaustion of his administrative remedies.

Price presents a situation very similar to the matter before us.³ In that case, the plaintiff filed a complaint with the federal Equal Employment Opportunity Commission (EEOC). She produced a transmittal form from the EEOC (EEOC Form 212) to the Texas Commission on Human Rights (TCHR). It was signed by a TCHR representative and returned to the EEOC, and thus acknowledged that it was received by the TCHR. Id. at 772. The Court of Appeals was able to determine that the complaint was timely filed with the TCHR based on the transmittal letter because the letter showed the date it was received by the TCHR. The Houston Court, recognizing the existence of a work sharing agreement between the EEOC and TCHR, concluded that the plaintiff had complied with the requirements of filing the complaint. Id. at 773 (relying in part on Griffin v. City of Dallas, 26 F.3d 610, 612-13 (5th Cir.1989)).

Similarly, in the record before us, Noble’s EEOC Form 5, “Charge of Discrimination,” is titled “Texas Human Rights Commission and EEOC.” However, under the heading “CAUSE OF DISCRIMINATION,” the box for “disability” is marked while the box for “retaliation” is not. Additionally, a box just above Noble’s signature is unmarked; this box requests that the charge be filed with both the EEOC and the state agency. Moreover, unlike the situation in Price, EEOC Form 212 in Noble’s case does not indicate any acknowledgment of receipt by the TCHR. The form is not signed by a TCHR representative and the box acknowledging receipt is not marked. There is no date indicating when the TCHR ever received the document. There is no evidence that the form was ever even sent to TCHR. From this record, we cannot conclude that TCHR ever received the complaint. Thus, even under the holdings expressed in Price and Griffin, we cannot conclude on this record that Noble’s complaint was filed even nominally with the TCHR.

*5 Additionally, SPSC argued on its motion and maintains on appeal that the discrimination charge Noble filed with the EEOC asserts discrimination in violation of the Americans with Disabilities Act (ADA) and not any violation of the TCHRA. The ADA was passed by the U.S. Legislature in 1990. See 42 U.S.C. § 12101 et seq. However, in 1995, the Texas Legislature added a provision to the Labor Code which expressly provided that one of the purposes of the TCHRA was to provide for the execution of the policies embodied in the ADA. See Act of April 21, 1995, 74th Leg., R.S., ch. 76 § 9.01(a) Tex.Gen.Laws 621 (current version at Tex.Labor Code Ann. § 21.001(3)(Vernon 1996)). SPSC contends that Noble’s complaint of discrimination under the ADA did not amount to a complaint of a state law violation that the TCHR had authority to administer.

We note that even before the 1995 addition referring to the ADA was made, the TCHRA prohibited discrimination based on disability. See Act of May 18, 1989, 71st Leg., R.S., ch. 1186 § 1, sec. 1.02(2), 1989 Tex.Gen.Laws 4824. Significantly, the definition of disability under the version of the TCHRA in effect on April 25, 1992 (the date Noble was sent home from work)⁴ very closely parallels the definition of disability under the ADA and the current TCHRA. Compare Act of May 18, 1989, 71st Leg., R.S., ch. 1186 § 1, sec. 1.02(2), 1989 Tex.Gen.Laws 4824 (disability means a mental or physical impairment that substantially limits at least one major life activity or a record of such physical or mental impairment); 42 U.S.C.S. § 12102(2)(1997)(disability means a physical or mental impairment that substantially limits one or more of the major life activities); Tex.Labor Code Ann. § 21.002(6) (Vernon Supp.1998) (disability means a physical or mental impairment that substantially limits at least one major life activity). As a result, while SPSC is technically correct to say that as of April 1992, the Texas law did not list as a purpose for the TCHRA the execution of the policies of the ADA, as a practical matter, the TCHRA addressed discrimination based on physical disabilities. Consequently, to the extent that SPSC argues that the Texas Legislature did not intend the TCHR to execute authority over disability discrimination claims, the argument fails.

However, SPSC specifically asserts that Noble’s charge filed with the EEOC did not allege a violation of the Texas Act, but only a violation of the ADA. As we have discussed, while the TCHRA in 1992 did cover disability discrimination, it is true that the act did not specifically provide as one of its purposes the execution of the policies embodied in the ADA. Consequently, while the federal and state statutes may have overlapped, they were not necessarily in harmony, and the state law did not require the TCHR and Texas courts to look to the ADA as it does now. See Tex.Labor Code Ann. §§ 21.001(3), 21.006 (Vernon 1996).

Accordingly, under Texas statutory law at the time Noble was sent home from work, in order to file an action in Texas state court under the TCHRA for disability discrimination, he was required to exhaust his administrative remedies with the TCHR before he could file suit. See Schroeder v. Texas Iron Works, Inc., 813 S.W.2d at 488. It is true that the EEOC had authority to investigate ADA claims in 1992. However, since the TCHRA was not at that time intended to harmonize the policies embodied in the ADA and the TCHRA, Noble cannot assume or rely on a work sharing agreement between the state and federal agency to show that he exhausted his administrative remedies under state law by filing a disability discrimination claim with the EEOC.

*6 In that regard, SPSC is correct in its assertion that there is no evidence in the record that TCHR conducted an investigation under the state law. Even if we assumed that the charge filed with the EEOC was forwarded and filed with the TCHR (despite the lack of evidence to that end), there is no indication that TCHR conducted its own investigation under state law. The record does contain a notice of right to sue sent to Noble from the EEOC, but there is no similar release from the TCHR. Considering that the EEOC Form 5 (the discrimination charge) was not designated to be forwarded to the state agency and that the EEOC Form 212 (the transmittal letter) shows no verification that the TCHR received the complaint, there is nothing in this record to show that Noble ever filed a claim with the state agency. Likewise, there is no evidence that TCHR ever investigated the claim or released Noble to file a civil suit. Thus, we must conclude that Noble failed to exhaust his administrative remedies under the TCHRA as required by law and the trial court was therefore without jurisdiction to hear the disability discrimination suit. Thus, the court properly granted a directed verdict as to the disability discrimination action. Accordingly, we overrule Noble’s fourth point of error.

Because the trial court had no jurisdiction over the disability discrimination action, we need not reach Noble’s additional points of error as to that action. Noble’s fifth, sixth, seventh, and eighth points of error are overruled.

In sum, we sustain Noble’s first point of error, and overrule his fourth point of error. Our disposition of these two points makes it unnecessary to reach his remaining points of error. Accordingly, the trial court’s judgment directing a take-nothing verdict against Noble on his 8307c action is reversed. The action is severed and remanded to the trial court for further proceedings consistent with this opinion. That portion of the judgment directing a take-nothing verdict against Noble on his disability discrimination action is affirmed.

	Footnotes
1		We do not intimate by our disposition of this point of error that the jury should rule one way or the other on Noble’s 8307c action. We merely conclude that there was conflicting evidence of a probative nature on the issue of the cause of the change in Noble’s status and that the issue should have gone to the jury. See White v. Southwestern Bell Tel. Co., Inc., 651 S.W.2d at 262.
2		In its motion for directed verdict, SPSC also relied on Burfield v. Brown, Moore, & Flint, Inc., 51 F.3d 583 (5th Cir.1995). There, the Fifth Circuit stated that “[i]n Texas, an employer is permitted to terminate an employee who sustains a job-related injury if it ultimately appears that, due to the nature of the injury, the employee can no longer perform the essential functions of his position.” Id. at 590. In coming to this conclusion, the Court relied on Schrader v. Artco Bell Corp., 579 S.W.2d 534, 540 (Tex.Civ.App.-Tyler 1979, writ ref’d n.r.e.). We note that in Schrader, the Tyler Court stated that the burden was on the plaintiff who was seeking reinstatement as a remedy for retaliatory discharge to show that he was physically able to perform the duties of his job. Id. at 540. While we do not necessarily take issue with the Fifth Circuit’s statement, the authority cited in Burfield does not directly support the proposition. Moreover, we are reminded that a plaintiff asserting a violation of 8307c is not required to show that retaliation was the sole cause for the change in status or termination, but merely a cause. See Continental Coffee Products v. Cazarez, 937 S.W.2d at 451 n. 3. Thus, in the matter before us, if SPSC terminated Noble because he (1) could not perform his job functions and (2) he filed a compensation claim, then there would be a violation of the statute.
3		We note that Price is slightly different on its facts from the case before us. Price involved a charge of race and sex discrimination. The TCHRA provided at that time, as it does today, that one of its purposes was to provide for the execution of the policies of Title VII of the Civil Rights Act of 1964 and its amendments. Title VII of the Civil Rights Act prohibits discrimination on the basis of race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a). In the matter before us, Noble was claiming disability discrimination under the Americans With Disabilities Act (ADA). As we shall explain, at the time of the alleged discrimination, the statutory purposes of the TCHRA did not include execution of the policies of the ADA.
4		Noble’s EEOC complaint charges that the disability discrimination occurred when he was medically retired by SPSC on November 1, 1992. Even using this latest date asserted by Noble, the same statute applies.