Johnson v. Bethesda Lutheran Homes and Services, 01-95-01553-CV

• Decision Date: 05 December 1996
• Docket Number: No. 01-95-01553-CV,01-95-01553-CV
• Citation: 935 S.W.2d 235
• Parties: Ceola D. JOHNSON, Appellant, v. BETHESDA LUTHERAN HOMES AND SERVICES, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 235

935 S.W.2d 235

Ceola D. JOHNSON, Appellant, v. BETHESDA LUTHERAN HOMES AND SERVICES, Appellee.

No. 01-95-01553-CV.

Court of Appeals of Texas Houston (1st Dist.).

Dec. 5, 1996.

Thomas Thurlow, Janine B.H. Gorell, Houston, for Appellant.

Charles F. Fitch, Ben A. Baring, Jr., Houston, for Appellee.

Before PRICE, ¹ WILSON and HEDGES, JJ.

OPINION

PRICE, Justice (Assigned).

Appellant, Ceola D. Johnson, believing her employer, appellee Bethesda Lutheran Homes and Services, fired her because she filed a worker's compensation claim, sued appellee for violating the anti-retaliation law. See City of LaPorte v. Barfield, 898 S.W.2d 288, 293 (Tex.1995); TEX. LABOR CODE ANN. § 451.001 (Vernon 1988)(formerly, TEX.REV.CIV. STAT. ANN. art. 8307c (Vernon 1973)). During appellant's deposition, appellee discovered appellant had been convicted of securing execution of a check by deception, a third degree felony. The conviction was not disclosed on appellant's employment application which asked if she had ever been convicted of a crime. Appellee moved for summary judgment arguing it would not have hired appellant but for her lie regarding her prior criminal history, and accordingly was entitled to summary judgment based on the after-acquired evidence doctrine. Appellant appeals the granting of the motion for summary judgment. We reverse and remand.

To obtain summary judgment, a defendant must either negate at least one element of the plaintiff's theory of recovery, "Moore" Burger, Inc. v. Phillips Petroleum Co., 492 S.W.2d 934, 936 (Tex.1972), or plead and conclusively prove each element of an affirmative defense. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). After the defendant presents evidence entitling it to summary judgment, the burden shifts to the plaintiff to produce evidence creating a fact issue. "Moore" Burger, 492 S.W.2d at 936-37. We consider all evidence favorable to the non-movant as true and indulge reasonable inferences in her favor. MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex.1986).

The Undisputed Facts

The following facts are undisputed:

On May 4, 1989, appellant pled guilty to the third degree felony of securing execution of a check by deception and was placed on probation.

In February 1991, appellant was hired by appellee after signing an employment application that said "the discovery of misrepresentation or omission of facts herein will be cause for immediate dismissal." The application asked: "Have you ever been convicted of any crime?" Appellant answered, "No."

When appellant applied for the job with appellee, she signed a document giving appellee permission to investigate her criminal history; appellee did not verify appellant's criminal history.

On March 20, 1994, appellant was injured within the scope of her employment.

On March 21, 1994, appellant filed a worker's compensation claim.

On May 20, 1994, appellant was fired.

On June 7, 1994, appellant filed suit for violation of the anti-retaliation law.

On November 15, 1994, appellant discovered appellant had a prior felony conviction.

Appellee's employee handbook before appellant was hired provides that "immediate discharge shall result without termination pay for [f]alsifying employment application information."

Appellee's employee handbook amended one year after appellant was hired provides that "immediate discharge may result for [f]alsifying employment application information."

The Disputed Facts

An affidavit of appellee's personnel director, Carolyn Clauter, was offered as summary judgment proof. Clauter stated that appellee would not have hired appellant had appellant disclosed her felony conviction in the employment application or had appellee known of the conviction, and appellee would have immediately terminated appellant had it learned appellant falsified information about her criminal past in the employment application. In response, appellant argues Clauter's statements are conclusory and self-serving, and lacked credibility because nothing indicated how she knew appellant would be fired upon discovery of the prior conviction. Moreover, appellant stated in an affidavit filed as part of her response that she believed her sentence was not a prior conviction, because it was probated.

To establish facts on summary judgment by an interested witness, the testimony must be clear, positive, direct, credible, free from contradiction, and not be easily controverted. TEX.R. CIV. P. 166a(c); Casso v. Brand, 776 S.W.2d 551, 558 (Tex.1989); Font v. Carr, 867 S.W.2d 873, 879 (Tex.App.--Houston [1st Dist.] 1993, no writ); Bankers Commercial Life Ins. Co. v. Scott, 631 S.W.2d 228, 231 (Tex.App.--Tyler 1982, writ ref'd n.r.e.). Clauter is an interested witness because she works for appellee. Her statement that appellee would not have hired appellant had it have known she had a criminal conviction, and would have fired appellant had it discovered the criminal conviction, cannot be easily controverted. Moreover, Clauter's statements are contradicted by the fact that appellee had appellant sign a document giving permission to investigate her criminal history, but chose not to verify appellant's criminal history. Also, appellant's affidavit creates a question as to whether in fact she knew her criminal conviction was in fact a conviction.

We hold there are questions of fact as to (1) whether appellee would have hired appellant had she disclosed her prior criminal conviction in her employment application; (2) whether appellee would have fired appellant had it discovered appellant's prior conviction after she was hired; and (3) whether appellant knew her prior criminal conviction was in fact a criminal conviction.

The After-Acquired Evidence Doctrine

These these fact questions are relevant if the after-acquired evidence doctrine applies to anti-retaliation law claims. The doctrine evolved in federal court as a defense to suits brought under Title VII of the Civil Rights Act ² and the Age Discrimination in Employment Act (ADEA), which bar discrimination in employment. See Milligan-Jensen v. Michigan Technological Univ., 975 F.2d 302, 304-05 (6th Cir.1992); Johnson v. Honeywell Info. Sys., Inc., 955 F.2d 409, 415 (6th Cir.1992); Summers v. State Farm Mutual Auto. Ins. Co., 864 F.2d 700, 708 (10th Cir.1988); Kenneth G. Parker, Note, After-Acquired Evidence in Employment Discrimination Cases: A State of Disarray, 72 Texas L.Rev. 403, 417-424 (1994). The doctrine bars an employee suit for discriminatory discharge where the employee falsified her employment application even if the falsification was not discovered by the employer until after discharge. Id. Before McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 115 S.Ct. 879, 130 L.Ed.2d 852 (1995), the federal circuits were split on the issue of the extent of the doctrine's application to Title VII and ADEA claims. Some circuits held that if the employee would not have been hired, or would have been fired, if the employer had known of the resume fraud, the employee suffers no legal damage by being fired and is barred from all recovery. Johnson, 955 F.2d at 415; Summers, 864 F.2d at 708. Other circuits held that the doctrine has no bearing on backpay damages and accordingly, the employee is barred from recovery of backpay from the point at which the employer proves it would have discovered the resume fraud and fired the employee. Wallace v. Dunn Const. Co., 968 F.2d 1174, 1182 (11th Cir.1992). This application of the doctrine bars recovery of prospective remedies, such as reinstatement and front pay. Id. at 1183. Some courts have ended backpay at the time the employer learns of the resume fraud during the litigation. Smith v. General Scanning, Inc., 876 F.2d 1315, 1319 n. 2 (7th Cir.1989). One federal trial court reduced a backpay award by 50% because of the resume fraud. Milligan-Jensen v. Michigan Technological Univ., 767 F.Supp. 1403, 1417 (W.D.Mich.1991). That judgment was reversed on appeal for the Summers ' approach. Milligan-Jensen v. Michigan Technological Univ., 975 F.2d 302, 304 (6th Cir.1992).

The United State Supreme Court resolved the differing approaches of the federal circuits in McKennon. McKennon requires an employer to establish that the wrongdoing of the employee in securing the job was of such severity that the employee would have been terminated on those grounds alone if the employer had known of the wrongdoing at the time of discharge. 513 U.S. at ---- - ----, 115 S.Ct. at 886-87. The McKennon factors go to damages, not outright barring of the claim. Id.

It would be both inequitable and pointless to order the reinstatement of someone the employer would have terminated, and will terminate, in any event and upon lawful grounds.

....

The beginning point in the trial court's formulation of a remedy should be calculation of backpay from the date of the unlawful discharge to the date the new information was discovered.

McKennon, at ----, 115 S.Ct. at 886.

After-Acquired Evidence and the Anti-Retaliation Law

There are three possibilities as to the after-acquired evidence doctrine's application to anti-retaliation law claims: (1) it never applies; (2) it applies as an absolute bar to suit; or (3) it applies as a limitation on damages. If the doctrine never applies to anti-retaliation law claims, the resolution of the questions of fact presented here are irrelevant. If the doctrine applies as an absolute bar to suit, and the trier of fact concludes that appellant knew her probation was a final criminal conviction, and appellee would not have hired appellant had it known of the prior criminal conviction or would have fired appellee had it discovered the prior conviction, appellee is entitled to judgment. If the doctrine applies only as a limitation on damages, and the trier of fact concludes that appellant knew her probation was a final conviction and appellee would not have hired appellant had it known of the prior criminal conviction or would...