Abston v. Levi Strauss & Co.

• Citation: 684 F. Supp. 152
• Decision Date: 06 October 1987
• Docket Number: Civ. A. No. TY-86-240-CA.
• Parties: Patrick K. ABSTON, Plaintiff, v. LEVI STRAUSS & CO., Defendant.
• Court: U.S. District Court — Eastern District of Texas

684 F. Supp. 152

Patrick K. ABSTON, Plaintiff, v. LEVI STRAUSS & CO., Defendant.

Civ. A. No. TY-86-240-CA.

United States District Court, E.D. Texas, Tyler Division.

October 6, 1987.

Curtis B. Stuckey, Nacogdoches, Tex., for plaintiff.

Walter S. Cowger, Dallas, Tex., Joshua Floum, Robert Visas, Tracy Crawford, Ramey, Flock, Hutchins, Jeffus, Crawford & Harper, Tyler, Tex., William J. Carroll, Heller, Ehrman, White & McAuliffe, San Francisco, Cal., for defendant.

ORDER

JUSTICE, Chief Judge.

Before the court is defendant's motion for summary judgment or, in the alternative, for partial summary judgment.

Plaintiff raises three causes of action growing out of his dismissal in 1984, after eleven years of employment with defendant as a sales representative and account manager. Plaintiff's first count alleges that his firing constituted age discrimination, in violation of the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621 et seq. Plaintiff also raises pendent state claims for breach of employment contract, and for intentional or negligent infliction of emotional distress.

In the motion for summary judgment, defendant first argues that plaintiff's pendent state law claims for breach of contract and infliction of emotional distress are preempted by state anti-discrimination laws. Second, defendant moves that the claim for infliction of emotional distress be dismissed because plaintiff has failed to produce evidence sufficient to make out a prima facie case. Third, defendant contends that Texas and not California law applies to the case, and that under Texas law plaintiff was an at-will employee and had no employment contract. Thus, defendant requests that the breach of contract claim be dismissed. Finally, defendant seeks dismissal of the ADEA cause of action on the ground that plaintiff has failed to make out a prima facie case of age discrimination under that statute.

Under Fed.R.Civ.P. 56, a motion for summary judgment should be granted only if, from the pleadings, depositions, and affidavits available to the court, the movant can demonstrate that no genuine issue of material fact exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Erco Industries Limited v. Seaboard Coast Line Railroad Co., 644 F.2d 424, 428 (5th Cir.1981); 10A C. Wright, A. Miller, and M. Kane, Federal Practice and Procedure § 2725 (1983). The case law of this circuit generally cautions against the use of summary judgments in employment discrimination cases, where nebulous questions of motive and intent are often at issue. See, e.g., Thornbrough v. Columbus and Greenville Railroad Co., 760 F.2d 633, 640-41 (5th Cir.1985); Clark v. Tarrant County, 798 F.2d 736, 746 (5th Cir.1986); Jones v. Western Geophysical Company of America, 669 F.2d 280, 283 (5th Cir.1982); Hayden v. First National Bank of Mt. Pleasant, 595 F.2d 994, 997 (5th Cir.1979). Moreover, doubts about the existence of material facts must be resolved in favor of the non-moving party. Harrison v. Byrd, 765 F.2d 501, 504 (5th Cir.1985); Murphy v. Georgia-Pacific Corp., 628 F.2d 862, 866 (5th Cir.1980). However, as the Fifth Circuit recently explained in Slaughter v. All-State Insurance Co., 803 F.2d 857, 860 (5th Cir.1986), the party opposing a motion for summary judgment may not merely rest on the allegations of the complaint, but must point to "specific facts showing that there is a genuine issue for trial," quoting Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986).

I. Choice of Law Applicable to Pendent Claims

The first issue which the court must decide is whether Texas or California law applies to the pendent state claims raised by plaintiff. The plaintiff urges the court to apply California law to the breach of employment contract claim, but Texas law to the claim for infliction of emotional distress. Defendant contends that Texas law should apply to both counts.

A federal court reviewing pendent state law claims must apply the choice of law rules of the forum state in which it is sitting. United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966); Klaxon Company v. Stentor Electric Mfg., Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). Thus, Texas choice of law rules will govern whether Texas or California law applies to plaintiff's pendent claims for breach of contract and emotional distress. System Operations v. Scientific Games Development Corp., 555 F.2d 1131, 1136-37 (3rd Cir. 1977); Austin Elcon Corp. v. Avco Corp., 590 F.Supp. 507, 512 (W.D.Tex.1984).

The Texas Supreme Court has recently established that in all cases, except where a valid choice of law clause exists in a contract, "the law of the state with the most significant relationship to the particular substantive issue will be applied." Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 421 (Tex.1984) (emphasis added). This rule explicitly adopts the approach taken in Section 6 of the Restatement (2nd) of Conflict of Laws. Id.

The defendant argues that since Duncan embraced the Restatement (2nd) approach to choice of law, the present case is governed by Section 196 of the Restatement (2nd). Section 196 concerns choice of law in contracts for services, and indicates that the law of the state where the "services, or a major portion of the services, are rendered" should be applied. During the eleven years plaintiff was employed by defendant, the bulk of his sales territory was in Texas, and most of his sales calls were made within this state. Plaintiff also resided variously in Houston, Amarillo and Dallas during this period, but never outside Texas and certainly never in California. Moreover, although the plaintiff once or twice a year visited the company's headquarters in California for business reasons, these visits were never for sales purposes and the thrust of his duties as a salesperson fell within Texas. Under these facts, then, it appears indisputable that application of Restatement (2d) Section 196 would require that Texas law control the pendent claims.

This court does not agree with defendant, however, that Section 196 of the Restatement (2nd) controls this case. There is no indication either in Duncan or in subsequent Texas cases that the entire Restatement (2nd) of Conflict of Laws—including Section 196—has been adopted in Texas. More precisely, Duncan embraced only the "most significant relationship" approach expressed in Section 6 of the Restatement (2nd). Duncan, supra, 665 S.W. 2d at 420-21, and n. 5; Seth v. Seth, 694 S.W.2d 459, 462-63 (Tex.App.—Ft. Worth 1985, no writ). The Texas Supreme Court implicitly affirmed this conclusion in Total Oilfield Services, Inc. v. Garcia, 711 S.W. 2d 237 (Tex.1986), by approving the application of Texas law on the grounds that the State of Texas had the "most significant relationship" to a wrongful death action involving a Texas resident, employed by a Texas corporation, who was killed while working in Oklahoma. Nowhere in Garcia did the Texas Supreme Court mention Section 196.

Section 6 of the Restatement (2d) specifies several factors to identify which state has the "most significant relationship" to an action. Those factors clearly point to the applicability of Texas law in this case. Most important here are the relevant policies of the forum state and of other states alleged to have an interest in the application of their law to the case. Texas, the forum state, undoubtedly has a strong interest in the application of Texas employment law to its residents and to employment activities which occur within its boundaries, as well as to litigation within its forum. Garcia v. Total Oilfield Services, Inc., 703 S.W.2d 411, 415 (Tex.App.— Amarillo 1986), as modified 711 S.W.2d 237 (Tex.1986). Although California also has an interest in ensuring that its residents are governed by California's own employment rules, this interest is attenuated when the out-of-state activities of a California corporation are concerned. Id. Finally, in regards to those Section 6 factors which point to predictability of outcome and the expectations of the parties, it can hardly be said that a party who has lived and worked in Texas for eleven years, and has brought suit here, would be unfairly surprised to have Texas law apply to him. Thus, the Section 6 test clearly shows that Texas has the most significant relationship to this case.

In short, application of either the "most significant relationship" test or the Section 196 approach to the facts of this case shows that Texas and not California law should govern plaintiff's pendent state law claims, and the court so holds.

II. Preemption

Defendant also asserts that plaintiff's two pendent state law claims are preempted by the Texas Commission on Human Rights Act (TCHRA), Tex.Rev.Civil Stat.Anno. art. 5221k, § 1.01 et seq. This court does not agree.

The TCHRA prohibits, inter alia, employment discrimination on the basis of age, and establishes a mechanism whereby a party alleging such discrimination may seek relief through filing of a complaint with the Texas Commission on Human Rights. See Tex.Rev.Civil Stat.Anno. art. 5221k, sec. 6.01(a). Defendant contends that the TCHRA creates a comprehensive and exclusive remedy for claims of employment discrimination under Texas law, and thus bars any other common law claims founded upon allegations of employment discrimination.¹ Defendant points to plaintiff's pleadings and deposition testimony, to suggest that since age discrimination is the basis of the pendent claims they are preempted under the TCHRA.

The principle that a comprehensive statutory remedy preempts common law causes of action was established in Mingus v. Wadley, 115 Tex. 551, 285 S.W. 1084 (1926). Mingus stated that "where a cause of action and remedy for its enforcement are derived not from the common law but from the statute, the statutory provisions are mandatory and...