Jordan v. Johnson Controls, Inc.

• Decision Date: 23 February 1994
• Docket Number: No. 05-93-00132-CV,05-93-00132-CV
• Citation: 881 S.W.2d 363
• Parties: , 9 IER Cases 302 R.C. JORDAN, Appellant, v. JOHNSON CONTROLS, INC., Appellee.
• Court: Texas Court of Appeals

Page 363

881 S.W.2d 363

62 USLW 2580, 9 IER Cases 302

R.C. JORDAN, Appellant, v. JOHNSON CONTROLS, INC., Appellee.

No. 05-93-00132-CV.

Court of Appeals of Texas Dallas.

Feb. 23, 1994 Appellant's Motion for Rehearing Overruled April 11, 1994.

Dale B. Tillery, Dallas, for appellant.

Jonathan C. Wilson, Craig A. McDougal, John DeSteguer, and Dean J. Schaner, Dallas, for appellee.

Before NYE, ¹ C.J., and ASHWORTH ² and WHITHAM, ³ JJ.

OPINION

WARREN WHITHAM, Justice (Retired).

In this wrongful discharge case brought under the Texas Workers' Compensation Act, TEX.REV.CIV.STAT.ANN. art. 8307c (Vernon Supp.1993), the employer-appellee, Johnson Controls, Inc., moved for summary judgment against the employee-appellant, R.C. Jordan, on the ground that, as a matter of law, the after-acquired evidence doctrine bars Jordan's 8307c claim and precludes Jordan from recovery. The trial court granted Johnson Controls' amended motion for summary judgment and dismissed Jordan's claims with prejudice. This appeal presents three issues: first and primary, whether the after-acquired evidence doctrine bars Jordan's 8307c claim; second, whether the after-acquired evidence doctrine is a function of state law and not preempted; and third, whether the trial court erred in considering a summary judgment affidavit. We conclude that: (1) the after-acquired evidence doctrine bars Jordan's 8307c claim; (2) the after-acquired evidence doctrine is a function of state law and is not preempted in the present case; and (3) the trial court properly considered the challenged summary judgment affidavit. Accordingly, we affirm.

The Undisputed Summary Judgment Evidence

Before Johnson Controls hired Jordan, Jordan completed an employment application on which Jordan verified that he had "never been convicted of a felony or other serious crime." Jordan placed his signature on the application directly under the following provision:

I certify this application for employment is complete and accurate to the best of my knowledge and understand that any misstatement or omission of material fact will be sufficient cause for discharge.

Two years later, Jordan was terminated due to repeated violations of Johnson Controls' attendance policy. At the time of Jordan's termination, Johnson Controls did not know of Jordan's fraudulent employment application. After Jordan filed suit for wrongful termination, Johnson Controls learned that, before Jordan was hired, Jordan was convicted of armed robbery and served time in the state penitentiary. Jordan admitted (1) his past criminal record, (2) that he lied on his employment application at Johnson Controls, and (3) that lying on the application constituted grounds for immediate termination. Johnson Controls' company rules specify that falsification of the employment application is grounds for immediate termination. Jordan acknowledged that he received a copy of Johnson Controls' company rules. Johnson Controls would not have hired Jordan had Jordan's falsified application been discovered prior to Jordan receiving an offer of employment or if Jordan had disclosed that he had been convicted of a serious crime such as armed robbery. Johnson Controls would have terminated Jordan when it learned of his falsification. Another employee was promptly terminated by Johnson Controls as soon as Johnson Controls discovered that the employee failed to disclose a prior criminal conviction on his application. Therefore, it is undisputed that (1) Jordan lied on his employment application; (2) Johnson Controls would not have hired Jordan had it known of his falsified application or armed robbery conviction; and (3) Johnson Controls would have terminated him immediately upon discovering that he lied on his application.

The Issues

Jordan's first and second points of error, present the principal issue before us: whether an employee may recover in an 8307c wrongful discharge action when, after discharge, the employer discovers that the employee gained his job through fraud and deceit by lying on his job application regarding a previous criminal conviction and incarceration for armed robbery. Thus, we reach the question whether the after-acquired evidence doctrine bars the employee's claim where the employer either (1) would not have hired the employee, or (2) would have fired the employee had the employer discovered the dishonesty or the criminal record. Jordan's third and fourth points of error raise the issue of whether application of the after-acquired evidence doctrine is a function of state law and is not preempted by the National Labor Relations Act or a collective bargaining agreement. Hence, we reach the question whether the after-acquired evidence doctrine is a function of state law and is not preempted in the present case. Jordan's fifth and final point of error complains of a summary judgment affidavit. Therefore, we reach the question whether the trial court erred in considering the affidavit.

In light of certain arguments made by Jordan, we emphasize the role played by the after-acquired evidence doctrine in the present case. The doctrine is not urged by Johnson Controls to justify an alleged unlawful termination of employment. Rather, the doctrine is urged to preclude the former employee from maintaining and recovering on his 8307c claim. Indeed, in spite of his various arguments, we conclude that Jordan must know that the doctrine is not invoked in this appeal to justify termination or discharge. We reach this conclusion because Jordan's brief tells us: "[i]n fact, it is undisputed and both parties agree, that Mr. Jordan was not terminated or discharged because he allegedly 'falsified his employment application'."

The After-Acquired Evidence Bar To Recovery

With facts and issues before us, we turn to consider whether the after-acquired evidence doctrine bars the employee's claim where the employer either would not have hired the employee or would have fired the employee had it discovered the dishonesty or the criminal record.

In his first point of error, Jordan contends that the trial court erred in granting Johnson Controls' amended motion for summary judgment because in Texas when an employer assigns grounds for discharging an employee an employer cannot later justify the termination on grounds that were not made the basis of the employee's termination at the time of the discharge, citing Measday v Kwik-Kopy Corp., 713 F.2d 118, 125-26 (5th Cir.1983). We conclude that Jordan's reliance upon this rule is misplaced. We reach this conclusion because Jordan treats Johnson Controls' reliance upon the after-acquired evidence doctrine as the assertion that Jordan was discharged because he falsified his employment application. Thus, Jordan argues that there is no summary judgment evidence establishing that Jordan was terminated or discharged because he "falsified his employment application." We conclude, however, that Jordan's premise misses the mark as to application of the after-acquired evidence doctrine sought to be made by Johnson Controls. In the present case, Johnson Controls concedes that Jordan was terminated for violation, by Jordan, of Johnson Controls' attendance policy. Johnson Controls does not seek to later justify Jordan's termination on other grounds. Rather, Johnson Controls advances the after-acquired evidence doctrine as precluding former-employee Jordan from maintaining and recovering on his 8307c claim. Hence, we reach a line of cases which Jordan refuses to consider.

Where the employee brings a suit for discriminatory discharge, the after-acquired evidence doctrine bars recovery in a wrongful discharge claim brought by an employee who falsified his employment application even if the falsification was not discovered by the employer until after the discharge. See Summers v. State Farm Mutual Auto Ins. Co., 864 F.2d 700, 708 (10th Cir.1988); Johnson v. Honeywell Info. Sys., Inc., 955 F.2d 409, 415 (6th Cir.1992); Milligan-Jensen v. Michigan Technological Univ., 975 F.2d 302, 304-05 (6th Cir.1992). While after-acquired evidence cannot be said to have been a "cause" for discharge, it is relevant to a claim of "injury," and does itself preclude the grant of any present relief or remedy to the claimant. See Summers, 864 F.2d at 708. In the present case, Johnson Controls advances the doctrine of after-acquired evidence to preclude Jordan's claims and entitlement to relief. Johnson Controls does not maintain that the doctrine of after-acquired evidence, or the actual after-acquired evidence, constitutes grounds for Jordan's discharge. Indeed, as noted above, Jordan concedes that both parties agree Jordan "was not terminated or discharged because he allegedly 'falsified his employment application'." It follows that the trial court did not err in granting Johnson Controls' amended motion for summary judgment and in barring Jordan's 8307c claim for reasons argued in Jordan's first point of error. We overrule Jordan's first point of error.

In his second point of error, Jordan contends that the trial court erred in granting Johnson Controls' amended motion for summary judgment and in creating or recognizing a complete bar to Jordan's 8307c wrongful discharge claim. Jordan supports his contention with two arguments. First, Jordan asserts that the Texas Legislature did not provide for an exception to, or for a complete bar to, an employee's Article 8307c wrongful discharge claim based upon an alleged falsification of an employment application. Second, Jordan maintains that no opinion of the Texas Supreme Court or an appellate court of Texas has judicially recognized such a bar. Johnson Controls concedes that the after-acquired evidence doctrine has not been adopted legislatively or judicially in this State and notes that this is a case of first impression in the Texas state courts.

First, we address the legislature's failure to provide for an after-acquired evidence defense in 8307c actions. We conclude...