Court of Appeals of Texas, Houston (14th Dist.).

Cadi REECE, Appellant,

v.

WESTPORT TECHNOLOGY CENTER INTERNATIONAL, INC. D/B/A IIT Research Institute, and Richard Drozd, Appellees.

NO. 14-96-00799-CV.

|

May 28, 1998.

Panel consists of YATES, EDELMAN, and O’NEILL, JJ.

OPINION

YATES, Justice.

*1 Cadi Reece appeals from a summary judgment granted in favor of appellees, Westport Technology Center International, Inc. d/b/a IIT Research Institute and Richard Drozd on Reece’s claims of intentional torts and employment discrimination. We affirm the trial court’s judgment.

In 1989, Cadi Reece began employment as a research geoscientist at the Westport Technology Center, owned by British Petroleum. Westport was later acquired by IIT Research Center, Inc. (“IITRI”). Her supervisor was Richard Drozd. Because Reece is hearing impaired, she requested and received several accommodations for her handicap.¹ She also requested permission to bring a hearing dog on the premises. Reece alleged that permission was denied. Reece also alleged that, beginning in 1991, she was subjected to sexual harassment by her supervisor, Richard Drozd.

Reece filed suit claiming employment discrimination, common law assault, and intentional infliction of emotional distress. Appellees subsequently filed a motion for summary judgment claiming Reece’s suit was barred by the doctrine of election of remedies. Specifically, appellees argued that all of Reece’s claims were barred because Reece had previously filed a claim for and obtained workers’ compensation benefits for post-traumatic stress disorder resulting from a sexual assault committed by an unidentified co-worker at a seminar in 1993. The trial court granted appellees’ motion for summary judgment. This appeal followed.

A movant for summary judgment has the burden of showing there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. American Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997). Summary judgment is proper if the defendant establishes all elements of an affirmative defense or disproves at least one element of the plaintiff’s claims. Id.

In points of error one and three, Reece contends the trial court erred in granting summary judgment based on the exclusivity provision of the Texas Worker’s Compensation Act. Reece first contends she could not have sought or received benefits for her emotional injuries because the statute does not allow recovery for such an injury. Furthermore, Reece maintains she did not seek or accept benefits concerning her claims of sexual harassment or discrimination. Finally, Reece argues that the Act does not exempt employers from common law liability for intentional torts.

The exclusivity provision of the Worker’s Compensation Act provides that “[r]ecovery of workers’ compensation benefits is the exclusive remedy of an employee covered by workers’ compensation insurance coverage … against the employer or an agent or employee of the employer for … a work-related injury sustained by the employee.” Tex. Lab.Code Ann. § 408.001 (Vernon 1996). The common law doctrine of election of remedies is an affirmative defense that may bar a person from pursuing two inconsistent remedies. Medina v. Herrera, 927 S.W.2d 597, 600 (Tex.1996). The election doctrine may constitute a bar to relief when: “(1) one successfully exercises an informed choice (2) between two or more remedies, rights, or states of facts (3) which are so inconsistent as to (4) constitute manifest injustice.” Bocanegra v. Aetna Life Ins. Co., 605 S.W.2d 848, 851 (Tex.1980). The doctrine is designed to prevent a party who has obtained a specific form of remedy from obtaining a different and inconsistent remedy for the same wrong. Fina Supply, Inc. v. Abilene Nat’l Bank, 726 S.W.2d 537, 541 (Tex.1987).

*2 Medina v. Herrera, 927 S.W.2d 597, 600 (Tex.1996), contains the supreme court’s most recent explanation of the election of remedies doctrine. In Medina, the supreme court addressed whether a worker could pursue a claim for damages resulting from an intentional tort (assault) after recovering workers’ compensation benefits. 927 S.W.2d at 600. As in our case, the plaintiff in Medina claimed a co-worker committed an intentional tort and that, because the co-worker was acting in the course and scope of employment, the employer was liable. Id. at 601. The court discussed three categories into which an assault by a supervisor must logically fall: (1) the assault is attributable directly to the employer; (2) the assault, although not directly attributable to the employer, was motivated by an employment-related dispute, or (3) the assault was motivated by personal reasons unrelated to the employment. Id. at 601. Because case law has held that the Worker’s Compensation Act provides no coverage for the intentional acts of employers, the court observed that the Act would not cover assaults directly attributable to the employer. Id. (citing Middleton v. Texas Power & Light Co., 108 Tex. 96, 185 S.W. 556 (1916)). The court also noted the Act does not provide coverage under the third category (assaults motivated by purely personal reasons) pursuant to the express statutory exception of Tex. Lab.Code Ann. § 406.032(1)(C) (Vernon 1996). Medina, 927 S.W.2d at 601.

The Act does, however, provide coverage under section 406.031(a) for the second category of assaults (assaults by other employees that are motivated by an employment-related dispute). Id. at 601-02. Because the court found that Medina had received compensation benefits for injuries resulting from the assault, the supreme court determined that Medina’s tort suit against his employer was barred. Id. at 602. Therefore, the court upheld the summary judgment in favor of the employer. Id. at 605.

Reece argues that the doctrine of election of remedies should not apply because the Worker’s Compensation Act does not allow recovery for “repetitious mental traumatic activities.” Case law regarding mental trauma falls into two categories, those that can be classified as accidental injuries and those held to be occupational diseases. Mental trauma can produce an accidental injury that is compensable under the Worker’s Compensation Act if there is proof of a definite time, place, and cause of injury. Brown v. Texas Employers’ Ins. Ass’n, 635 S.W.2d 415, 417 (Tex.1982). If there is no evidence of a particular event causing the injury, benefits under the Worker’s Compensation Act are not available. Id. at 416. A mental condition caused by a gradual buildup of emotional stress over a period of time is only compensable as an occupational disease if it is accompanied by physical force or exertion. Transportation Ins. Co. v. Maksyn, 580 S.W.2d 334, 338 (Tex.1979).

*3 Reece argues that both the harassment and the discrimination claims involve repetitious mental injuries not compensable under the Worker’s Compensation Act. These claims allegedly resulted from a gradual buildup of stress over a period of time and nothing in the record indicates they were accompanied by physical force or exertion. Therefore, they would not be compensable under the Act. If Reece were able to separate the injuries she now claims from those for which she recovered compensation, we would agree with her argument. See Aranda v. Insurance Co. of N. Am., 748 S.W.2d 210, 214 (Tex.1988) (holding that claimant entitled to recover if he can show intentional tort is separate from the compensation claim and produced a separate injury). Instead, for the reasons discussed below, we find that Reece’s suit is barred because she seeks recovery for the same injury for which she previously received worker’s compensation benefits.

In Massey v. Armco Steel Co., 652 S.W.2d 932 (Tex.1983), the supreme court set out the principle that a single injury cannot give rise to a second set of damages. In Massey, the court agreed that an employee may have a claim against his employer under the Worker’s Compensation Act and a claim at common law for intentional tort, but the employer’s intentional act must be separable from the compensation claim and must produce an independent injury. Id. at 933. (emphasis added). The rule in Massey was followed in Nash v. Northland Communications Corp., 806 S.W.2d 952 (Tex.App.-Tyler 1991, writ denied). In Nash, the plaintiff had injured his back while digging a ditch and recovered worker’s compensation for this injury. Id. at 952-53. The plaintiff later filed suit against his employer for discrimination, alleging loss of wage earning capacity, personal injuries and loss of consortium. Id. at 953. The court observed that a plaintiff may seek damages after recovering compensation benefits if the plaintiff establishes the employer’s intentional act was separate from the compensation claim and caused an independent injury. See id. Because the court found that the damages sought for personal injuries “stem solely and inseparably” from the back injury for which plaintiff had already recovered compensation, the court held the personal injury claim was barred. Id.²

In this case, Reece claims that, although the stress disorder resulting from the 1993 assault is the same as the stress disorder caused by the harassment, the intentional acts causing the disorder are separate. In her deposition, included in the summary judgment record, Reece testified that she sought compensation benefits for the same injury, post-traumatic stress disorder, for which she is now seeking damages in this lawsuit.³ Reece agreed that the sexual harassment contributed to this disorder. Further, in her brief to this court, Reece concedes that she is unable to segregate the emotional damages caused by the harassment and those caused by the sexual assault in 1993. Thus, although there is proof that the two acts leading to the stress disorder are independent, the injuries resulting from the two acts are not independent and are incapable of segregation. Whether there is more than one cause contributing to an injury is irrelevant. If there is but one injury and worker’s compensation benefits were recovered for that injury, a subsequent suit based on that injury is barred. See id.

*4 Reece incorrectly contends that case law supports her right to bring a suit for damages under these circumstances. Reece cites Massey v. Armco Steel Co., 652 S.W.2d 932 (Tex.1983), Reed Tool Co. v. Copelin, 610 S.W.2d 736 (Tex.1980), and Middleton v. Texas Power & Light Co., 108 Tex. 96, 185 S.W. 556 (1916) for the proposition that the Worker’s Compensation Act does not exempt employers from common law liability for intentional torts.

Reece’s argument was addressed by the supreme court in Medina. The Medina court found that, under Middleton and its progeny, an employer’s intentional act is not covered by worker’s compensation. 927 S.W.2d at 600. Therefore, a plaintiff has but one remedy, a common law suit against the employer for the intentional tort. Id. This situation is not present here and was not present in Medina. Reece does not contend the assault was directly attributable to her employer, but that the assault is indirectly attributable to her employer because Drozd was acting in the course and scope of his employment when he committed sexual harassment.⁴ This is similar to the claim made by the plaintiff in Medina, that the employer committed an intentional tort because a co-worker assaulted the plaintiff while in the course and scope of employment. Id. at 599. The plaintiff in Medina accepted worker’s compensation benefits for the injury, and therefore, the court held that the receipt of compensation benefits barred the common law tort suit. Id. at 601-02. This is a reasonable result because it prevents an injured party from seeking a double recovery for the same injury. See Fina Supply, Inc., 726 S.W.2d at 541. In this case, Reece recovered compensation benefits for her injury of post-traumatic stress disorder, the same injury for which she now seeks relief under a tort theory. Therefore, it is reasonable to bar Reece’s attempt to secure a second recovery for the same injury. Accordingly, appellees have met their summary judgment burden of proof that, under the facts of this case, the two remedies are mutually exclusive and inconsistent under the doctrine of election of remedies. See Medina 927 S.W.2d at 601-02. We overrule points of error one and three.

In point of error two, Reece contends IITRI did not meet its summary judgment burden because it did not establish that Reece made an informed choice between two remedies. To show that a plaintiff made an informed choice, there must be proof that the plaintiff made a choice “with a full and clear understanding of the problem, facts, and remedies, essential to the exercise of an intelligent choice.” Bocanegra v. Aetna Life Ins. Co., 605 S.W.2d 848, 852 (Tex.1980); Home Ins. Co. v. Banda, 736 S.W.2d 812, 816 (Tex.App.-San Antonio 1987, writ denied).

*5 In Bocanegra, the court addressed the issue of whether a plaintiff had made an informed choice in seeking compensation benefits. 605 S.W.2d at 852. The plaintiff, Mrs. Bocanegra, had suffered back pain that eventually required surgery. Id. at 849. She filed a claim and recovered compensation benefits on her claim that the injury was work-related. Id. Bocanegra then sued her insurance company to recover the amount of her medical and hospital bills, claiming that the medical expenses resulted from a non-occupational injury. Id. The supreme court upheld Bocanegra’s recovery, finding that Bocanegra lacked the requisite knowledge to bind her to an informed election. Id. at 853-54. The court observed that election of remedies “should not bar a suit when a previous course of action was grounded upon uncertain and undetermined facts.” Id. at 852. Bocanegra’s injury was presumed to be work-related until she had surgery, at which time the doctor advised her that her injury was the result of a pre-existing degenerative disc disease. Id. at 850. Because her injury did not neatly fit within the statutory definition of a compensable injury, the court found it harsh to charge Bocanegra with knowledge of the medical causes of her injury when neither the physicians nor the lawyers in the case possessed such knowledge. Id. at 853.

More recently, the supreme court in Medina found that, because the evidence showed the plaintiff was represented by counsel when he filed his claim for compensation benefits, the plaintiff was charged with knowledge of his remedies. 927 S.W.2d at 603. The court added that it was irrelevant whether the plaintiff knew the extent of his injuries at the time he applied for compensation benefits. Id. The facts in Medina, however, indicate it was clear at all times that there was but one injury, the injury suffered from the assault by Medina’s co-worker. See id. at 599.

Similar to the facts in Medina, Reece knew the cause of her injury, the 1993 sexual assault, when she filed a claim for benefits. Furthermore, at the time she filed this claim, the harassment alleged in the present suit had been ongoing for approximately two years. Certainly, Reece was aware of this harassment at the time she filed a claim for benefits for post-traumatic stress disorder. The record also indicates Reece was represented by counsel at the time she sought compensation benefits. Accordingly, we hold that appellees met their summary judgment burden of showing that Reece made an informed choice of remedies. We overrule point of error two.

*6 Under point of error four, Reece claims the trial court erred in granting summary judgment because the Labor Code does not preclude her discrimination claim. In addition to seeking damages for intentional torts, Reece alleged she could not perform the essential functions of her job without a hearing dog. Appellees claimed summary judgment should be granted because Reece admitted she could perform the essential functions of her job without the accommodations sought in this lawsuit.

The Texas Labor Code provides that it is an unlawful employment practice for an employer “to fail or refuse to make a reasonable workplace accommodation to a known physical or mental limitation of an otherwise qualified individual with a disability who is an employee or applicant for employment, unless the [employer] demonstrates that the accommodation would impose an undue hardship on the operation of the business of the [employer].” Tex. Lab.Code Ann. § 21.128(a) (Vernon 1996). The burden of proof is on the employee to show that reasonable accommodations were possible that would enable her to perform the “essential functions” of her position. See Austin State Hosp. v. Kitchen, 903 S.W.2d 83, 92 (Tex.App.-Austin 1995, no writ). There is no need to consider whether the employer made reasonable accommodations if the employee is able to perform the essential functions of her job without the accommodations. See Chandler v. City of Dallas, 2 F.3d 1385, 1393-94 (5 ^th Cir.1993), cert. denied, 511 U.S. 1011, 114 S.Ct. 1386, 128 L.Ed.2d 61 (1994).⁵

The accommodation Reece sought was permission to utilize a hearing dog in the workplace. Reece alleged she requested permission on more than one occasion and that these requests were denied. In her deposition, Reece testified that she received no reprimands or poor evaluations due to the lack of a hearing dog. Reece further testified she was able to perform the essential functions of her job without the hearing dog. Reece added, however, that she could have done a better job with the dog.

This proof is sufficient to show that Reece did not require the accommodation of a hearing dog to perform the essential functions of her job. Accordingly, we find the trial court properly granted summary judgment in favor of appellees on Reece’s claim of discrimination. We overrule point of error four.

We affirm the trial court’s judgment.

	Footnotes
1		The company provided Reece with the following: (1) a strobe light in her laboratory to flash if the fire alarm sounded; (2) a vibrating pager to signal both a fire alarm and an incoming telephone call; (3) a TTY telephone; (4) and assistance, if necessary, from other personnel at meetings.
2		Like Reece, the plaintiff in Nash argued that the holding in Mitchell v. Aetna Casualty and Surety Company, 722 S.W.2d 522 (Tex.App.-Beaumont 1987, writ ref’d n.r.e.) states the controlling case law and permits recovery in this situation. We agree with the Nash court that the Mitchell plaintiff sought damages in a federal civil rights suit that were different than the personal injuries for which she sought worker’s compensation benefits. See id. at 954. Thus, the multiple, separable injuries in Mitchell distinguish it from Nash and from the instant case.
3		When asked if the workers’ compensation benefits were sought to compensate the injury for which she seeks redress in this lawsuit, Reece answered, “Only with regards to the PTSD [post-traumatic stress disorder].”
4		In response to Reece’s allegations that Drozd committed assault and intentional infliction of emotional distress while he was acting within the course and scope of employment, appellees argue the alleged sexual harassment was motivated by a personal dispute, rather than an employment-related dispute. Apparently, appellees are asserting that the trial court should have found, as a matter of law, that Drozd was not acting within the course and scope of employment. If Drozd was not acting within the course and scope of employment when he committed the alleged intentional torts, worker’s compensation benefits would not be available under section 406.032(1)(C) of the Worker’s Compensation Act. If workers’ compensation benefits are unavailable as a remedy, Reece cannot be barred from seeking a remedy under common law theories. See Medina, 927 S.W.2d at 601. Therefore, Reece could seek damages against Drozd individually. If, on the other hand, Drozd was acting within the course and scope of employment when the alleged harassment occurred, worker’s compensation benefits are available. See id. Therefore, Reece’s earlier receipt of compensation benefits would bar Reece’s tort suit against Drozd. We need not address this argument for two reasons. First, appellees did not raise this argument in the trial court. See Wright v. Gunderson, 956 S.W.2d 43, 46 (Tex.App.-Houston [14 th Dist.] 1996, no writ). Second, because we have already held that Reece’s recovery of compensation benefits bars her suit for damages against IITRI, the issue whether Drozd was or was not acting in the course of employment is irrelevant. Neither an affirmative nor a negative answer to this issue would enable Reece to seek damages against IITRI in this case. The answer to this question would affect Reece’s ability to seek damages against Drozd. See Medina, 927 S.W.2d at 602. However, Reece did not sue Drozd individually. Drozd was included as a defendant only in connection with Reece’s respondeat superior claim against IITRI.
5		Texas courts look to federal precedent in construing the disability portions of the Texas Labor Code because the provisions regarding failure to accommodate derive from the Americans with Disabilities Act. See Austin, 903 S.W.2d at 87-88.