Bouchet v. Texas Mexican Ry. Co.

• Decision Date: 10 January 1996
• Docket Number: No. 04-93-00421-CV,04-93-00421-CV
• Citation: 915 S.W.2d 107
• Parties: Lawrence P. BOUCHET, Appellant/Appellee, v. The TEXAS MEXICAN RAILWAY COMPANY, Appellee/Appellant.
• Court: Texas Court of Appeals

Page 107

915 S.W.2d 107

Lawrence P. BOUCHET, Appellant/Appellee, v. The TEXAS MEXICAN RAILWAY COMPANY, Appellee/Appellant.

No. 04-93-00421-CV.

Court of Appeals of Texas San Antonio.

Jan. 10, 1996.

Rehearing Overruled Feb. 12, 1996.

Robert E. Valdez, Linda Daniels, Robert E. Valdez, P.C., San Antonio, for Appellant.

Guy H. Allison, Leonard Bucklin, Rose Rivera Vela, Allison & Huerta, Corpus Christi, Donato D. Ramos, Person, Whitworth, Ramos, Borchers & Morales, Laredo, for Appellee.

Before CHAPA, C.J., and HARDBERGER and PEEPLES, JJ. ¹

OPINION

HARDBERGER, Justice.

The first issue in this appeal is whether a wrongful discrimination question pursuant to Labor Code Sec. 451.001 (formerly Article 8307c of the Texas Workers' Compensation Act) can be given in a case arising under the FELA. The second issue is, if the jury question is procedurally proper, was the discrimination proven as a matter of law, or in the alternative, was there sufficient evidence to uphold the jury's finding of no discrimination. The appellant has limited this appeal pursuant to Texas Rule of Appellate Procedure 40(a)(4) to these issues. The Railroad files a cross-point contesting the rectitude of giving a wrongful discrimination question to the jury.

Facts

Bouchet was injured on June 29, 1987 while in the course and scope of his employment with the Texas-Mexican Railway Company (Railroad). He timely reported the injury, but continued to work without missing time but with some back complaints. Eventually though in January of 1990, he had to have back surgery. It was the policy of the railroad to provide certain benefits to employees injured in an on-the-job accident. These included a salary continuation, paying the medical bills and travel expenses from Laredo to San Antonio to see the appropriate medical specialists. The Railroad did so in this case until Bouchet filed a lawsuit on December 23, 1991 under the Federal Employers Liability Act (FELA) for personal injuries. After the filing of the lawsuit, the Railroad stopped the salary continuation and stopped paying the travel expenses for Bouchet to see his doctors in San Antonio. Interestingly, the Railroad continued to pay all medical expenses though. On September 4, 1992, Bouchet amended his complaint and asserted that the Railroad had violated Labor Code § 451.001 by terminating company provided benefits after he filed the FELA lawsuit.

After a trial on the merits, the jury found that Bouchet was injured in the course and scope of employment. The jury also found that Bouchet was 80% responsible for his injury; the remaining 20% of fault being assigned to the Railroad. The court submitted a jury issue on violation of Labor Code § 451.001 over the Railroad's objection. The jury found no violation of the Labor Code provision. Bouchet appeals from the trial court's failure to find as a matter of law that the Railroad violated the wrongful discrimination statute. The Railroad's response is that the issue cannot be considered in an FELA claim, and even if it could, the jury found against Bouchet. Section 451.001

and FELA

The first issue to be determined is whether a Labor Code § 451.001 question on wrongful discrimination is proper in an FELA case. The Railroad alleges that it is not.

The wrongful discrimination statute provides in part:

A person may not discharge or in any other manner discriminate against an employee because the employee has:

(1) filed a workers' compensation claim in good faith;

(2) hired a lawyer to represent the employee in a claim;

(3) instituted, or caused to be instituted in good faith a proceeding under Subtitle A; or

(4) testified, or is about to testify in a proceeding under Subtitle A.

TEX.LAB.CODE ANN. § 451.001 (Vernon Supp.1995) (former law at TEX.REV.CIV.STAT.ANN. art. 8307c, § 1).

Article 8307c was enacted in 1971 to give protection to workers, who were sometimes discriminated against, for exercising their rights under the Texas Workmen's Compensation Act. This discrimination most often happened when the injured worker made a claim, or hired an attorney, or instituted a proceeding to recover damages for his/her injury. The legislature, through Art. 8307c, said that "a person ... may not discriminate against an employee" for doing these things. In 1989 the legislature completely rewrote the workers compensation laws of Texas in its S.B. 1. S.B. 1, Acts of the 71st Legislature, 2nd called sess., 1989.

S.B. 1 does not contain a wrongful discrimination clause, nor was 8307c rewritten. It remained intact, and was expressly deleted from the bill that did pass and moved to the Labor Code as Section 451.001. Most authorities since that time conclude that the wrongful discrimination statute, § 451.001 is no longer tied to the workers' compensation scheme or statute, but is a separate cause of action. "Discharging an employee for filing a workers' compensation claim is an independent statutory wrong. Rather than being part of a workers' compensation claim, a retaliatory discharge action arises from acts by an employer in the labor-management relation." Chatman v. Saks Fifth Avenue of Texas, Inc., 762 F.Supp. 152, 154 (S.D.Tex.1991).

Chatman also points out that, while federal courts are divided over whether to characterize a retaliatory discharge claim as falling under the workers' compensation laws of the State, "The Western District of Texas also has held that retaliatory discharge claims do not arise under the workers' compensation laws of Texas...." Id. "A retaliatory discharge claim differs procedurally and substantively from a workers' compensation claim ... A claim for benefits is filed with the Texas Workers' Compensation Commission, while a claim for retaliatory discharge is brought against the employer for her having filed the claim for benefits." Id. at 155.

If § 451.001 is not tied to the Workers' Compensation Act, then it applies to subscribing employers and non-subscribing employers alike. There is no philosophical or rational reason to prohibit retaliatory wrongful discrimination by a subscribing employer, but to let all other employers discriminate with impunity. The wrong is the same and the injury to the employee is the same.

Our Supreme Court has not ruled on whether employees of non-subscribers are protected by § 451.001, but it has pointed to a court of appeals opinion where the writ was denied which held that 451.001 applies to subscribers and non-subscribers alike. "We have assumed because we need not decide in this case, that employees of non-subscribers are protected by section 451.001. One court of appeals has suggested they are. Hodge v. BSB Invs, Inc., 783 S.W.2d 310, 312-13 (Tex.App.--Dallas 1990, writ denied)." Gunn Chevrolet v. Hinerman, 898 S.W.2d 817, 819 (Tex.1995).

The Hodge opinion, referred to by the Supreme Court, is squarely on point: "The use of the broad term "person" by the legislature indicates a purposeful intent not to limit the statute to any one class of employers ... We conclude that article 8307c applies equally to employees of subscribers and nonsubscribers." Hodge, 783 S.W.2d at 312-13.

Section 451.001 is written in broad terms. It says in pertinent part, (emphasis supplied): "A person may not discharge or in any other manner discriminate against an employee ..." The language does not limit the class of employers that may not discharge or discriminate. The Railroad's construction of this statute would have the court impliedly add the words to "A person" to say "unless the suit is being brought under federal statute." Whether looking at the literal language, or the policy behind the anti-discrimination statute, such an interpretation is not justified. The idea is to protect all injured employees from discrimination because they were hurt or chose to seek legal redress for their injuries.

It has already been held that the anti-discrimination statute applies to subscriber and non-subscriber alike. See Hodge, 783 S.W.2d at 313. That would seem to be all employers in much the same way that it can be said that the world may be divided into those that play the fiddle and those that do not. It is this court's belief that subscriber and non-subscriber describes all employers, even when the injured employee seeks redress under a federal statute.

Granted a federal statute, such as this, may preempt all state law. If the FELA had an express preemption clause, or even if it impliedly preempted section 451.001, we would have no hesitation to so find. Federal law may supersede state law in three ways. First, Congress may explicitly state its intent to preempt in the language of the statute itself. Second, preemption may be implied when the federal law is so pervasive that there is no room for state law. Third, state law is preempted if it conflicts with federal law. If it is impossible to comply with both laws, it conflicts. Moore v. Brunswick, 889 S.W.2d 246, 247-48 (Tex.1994). As this court has recently stated: "Preemption by the federal government is a serious inroad into the right of a state to make its own law, whether it be legislative enactment or common law. Therefore the preemption cases are interlaid with admonitions against an overeagerness to find preemption." Alvarado v. Hyundai Motor Co., 908 S.W.2d 243, 245 (Tex.App.--San Antonio 1995). We find no preemption, either express or implied, dealing with remedies for prohibited discrimination. We also find no conflict between federal and state law designed to prohibit discrimination against injured workers.

The rest of Section 451.001 describes what acts are covered under the anti-discrimination umbrella applying to all persons. An injured worker may not be discriminated against because the employee has: (1) filed a workers' compensation claim in good faith; (2) hired a lawyer to represent the employee in a claim; (3) instituted or caused to be instituted in good faith under Subtitle A; or (4) testified or is about to testify in a...