Thurman v. Sears, Roebuck & Co.

• Citation: 952 F.2d 128
• Decision Date: 30 January 1992
• Docket Number: No. 91-1026,91-1026
• Parties: Willie L. THURMAN, Plaintiff-Appellant, v. SEARS, ROEBUCK & CO., Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 128

952 F.2d 128

Willie L. THURMAN, Plaintiff-Appellant, v. SEARS, ROEBUCK & CO., Defendant-Appellee.

No. 91-1026.

United States Court of Appeals,

Fifth Circuit.

Jan. 30, 1992.

Rehearing and Rehearing En Banc Denied

Feb. 28, 1992.

Allan G. King, Johnson & Gibbs, Dallas, Tex., for plaintiff-appellant.

E. Thomas Bishop, Darryl J. Silvera, Dallas, Tex., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before KING, JOHNSON and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Appealing the district court's grant of summary judgment in favor of Sears on statute of limitations grounds, Willie L. Thurman, former Sears employee, contends that a fact issue exists as to the actual date of his termination from employment. Finding that Thurman failed to present summary judgment evidence to create a genuine issue of material fact, we affirm.

I

Willie L. Thurman began his employment with Sears in November 1977. He worked at Sears' Dallas Merchandise Distribution Center (DMDC) as a manual laborer--both as a "receiver" where he unloaded merchandise from a truck, and as a "merchandise handler" where he moved returned goods for further processing.

The evidence indicates that, beginning in 1985, Thurman suffered a series of job-related injuries. Thurman claims that after each of these injuries, Sears placed him on leave of absence and reinstated him when he demonstrated that he was again able to perform his job duties. In March 1986, Thurman sustained the injury about which he now complains. Following this injury, Sears placed Thurman on a medical leave of absence, and Thurman filed a claim for workers' compensation. Thurman asserts that he was ready to go back to work at Sears in June 1986. Because of restrictions imposed by his doctor, however, Thurman was unable to perform the duties of a heavy merchandise handler and, therefore, Sears assigned him to a job where he swept floors and performed other light duties.

In 1987, Sears began a reorganization of the DMDC workforce and, in April 1987, as part of this reorganization, Sears asked Thurman to voluntarily terminate his employment. Thurman declined and continued as a light merchandise handler until May 1987, when he was informed that his light duty job was eliminated. ¹ According to Thurman, Sears informed him at that time that he was being placed on a leave of absence.

Thurman's last day at Sears was May 18, 1987. The next day, Thurman filed a claim for unemployment benefits with the Texas Employment Commission. A few weeks later, on June 5, Thurman executed a release and waiver. On that same date, Thurman signed a document acknowledging that he was placed on leave of absence and that he received a lump-sum payment in consideration for signing these documents. ² Thurman claims that, after recovering fully from his injury, he could once again perform heavy lifting, and therefore, in December 1987, and again in January 1988, Thurman contacted Sears, seeking to be reinstated to his job as a heavy merchandise handler. Sears, however, denied Thurman's request on both occasions and, in May 1988, Thurman received notification from Sears that his leave of absence from Sears expired on May 19, 1988.

On July 17, 1989, Thurman brought suit against Sears in Texas state court, asserting a cause of action under article 8307c of the Texas Revised Civil Statutes. See Tex.Rev.Civ.Stat.Ann. art. 8307c, § 1 (West Supp.1991). Thurman alleged that:

[A]fter Plaintiff recovered from his injuries, and requested on at least two occasions to return to work, Sears refused to reinstate him and continued him on leave of absence. In May of 1988, Sears terminated his employment, ostensibly because his one year's leave of absence had expired. Plaintiff would show that the true reason for his discharge by the Defendant was in retaliation for filing a claim under the Workers' Compensation Act....

Record on Appeal at 7, Willie L. Thurman v. Sears, Roebuck & Co., No. 91-1026 (5th Cir. filed Jan. 23, 1991) (Plaintiff's Original Petition) ["Record on Appeal"].

Sears timely answered the state court lawsuit, raising the statute of limitations as an affirmative defense and, subsequently, removed the case to federal court. Sears filed its initial Motion to Dismiss and Alternative Motion for Summary Judgment, urging three grounds for dismissal of Thurman's lawsuit: (i) Thurman's claim was barred by limitations; (ii) Thurman released all claims against Sears relative to the termination of his employment; and (iii) Thurman's termination was not in retaliation for the filing of the workers' compensation claim. ³ The district court denied Sears' motion because it found Thurman had not had time to complete adequate discovery. Sears then filed an Amended Motion to Dismiss and Alternative Motion for Summary Judgment, which, in addition to asserting the defenses of limitations, release and a lack of a causal relationship between Thurman's termination and Thurman's filing of a workers' compensation claim, also asserted that Thurman's claim is preempted by the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001, et seq. (ERISA). ⁴ Sears then filed a Supplemental Motion to Dismiss and Alternative Motion For Summary Judgment. The district court granted Sears' Supplemental Motion, concluding Thurman's lawsuit was barred by limitations because Thurman's cause of action accrued on May 18, 1987. ⁵ Thurman appeals from that order granting summary judgment.

II

Because this case is an appeal from summary judgment, we review the record de novo. See Guthrie v. Tifco Industries, 941 F.2d 374, 376 (5th Cir.1991). Summary judgment is proper if the movant demonstrates the absence of genuine issues of material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The movant accomplishes this by identifying portions of the record which reveal that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Anderson, 477 U.S. at 250, 106 S.Ct. at 2511. Upon such a showing, the burden is then shifted to the nonmovant, who "must come forward with 'specific facts showing that there is a genuine issue for trial.' " Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (emphasis in original), quoting Fed.R.Civ.P. 56(e). We examine the affidavits, pleadings, depositions and answers to interrogatories that were before the trial court to determine whether there is an absence of any genuine issues of material fact. See Randolph v. Laeisz, 896 F.2d 964, 969 (5th Cir.1990). When "the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.' " Matsushita, 475 U.S. at 586, 106 S.Ct. at 1356 (citation omitted).

III

Thurman appeals the summary judgment in Sears' favor, contending: (a) that a fact issue exists as to the actual date of his termination from employment; (b) that, in the alternative, Sears should be equitably estopped from asserting that the limitations period began before he sought reinstatement in December 1987; and (c) that, if this court finds Thurman was terminated in May 1987, then Sears' refusal to rehire him constitutes "discrimination in any other manner."

A

Article 8307c of the Texas Revised Civil Statutes is one of Texas' statutory exceptions to the common-law doctrine of employment-at-will. See Winters v. Houston Chronicle Pub. Co., 795 S.W.2d 723, 724 n. 1 (Tex.1990); see also Azar Nut Co. v. Caille, 734 S.W.2d 667, 669 (Tex.1987) (Spears, J., concurring and dissenting). The statute provides:

No person may discharge or in any other manner discriminate against any 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 proceeding.

Tex.Rev.Civ.Stat.Ann. art. 8307c, § 1 (West Supp.1991). An aggrieved employee who wishes to file suit under this statute has two years within which to institute litigation after her cause of action accrues. See Luna v. Frito-Lay, 726 S.W.2d 624, 625 (Tex.App.--Amarillo 1987, no writ); see also Smith v. Coffee's Shop for Boys and Men, 536 S.W.2d 83, 84 (Tex.Civ.App.--Amarillo 1976, no writ). Under article 8307c, a cause of action accrues when facts exist authorizing the employee to seek judicial relief. See Luna, 726 S.W.2d at 628.

In Smith v. Coffee's Shop for Boys and Men, the court of appeals found Smith's action under article 8307c barred by limitations. ⁶ Smith alleged that Coffee's unlawfully refused to permit her to return to work because she had filed a workers' compensation claim, and she asserted that her cause of action should not be barred by limitations because the last refusal to reinstate employment by Coffee's was within the two-year limitations period. The court disagreed, concluding that "Smith's cause of action under the statute was for discriminatory discharge and not for Coffee's refusal to later re-employ her." Smith, 536 S.W.2d at 85. The Smith court, while it did not expressly articulate a standard to determine when a cause of action accrues under article 8307c, stated that "the acts statutorily condemned are those occurring during the employment, and not afterwards." Id. Therefore, the court determined that Smith's cause of action for discriminatory discharge necessarily accrued, at the latest, when Coffee's asked Smith to return to work and Smith refused and instead went on vacation.

In 1987, in Luna v. Frito-Lay, the court of appeals addressed another appeal involving a lawsuit under article 8307c. ⁷ This time, the court articulated a standard designed to isolate the accrual date of a cause of...