Saenz v. Southern Union Gas Co., 08-95-00170-CV

• Court: Texas Court of Appeals
• Writing for the Court: Before BARAJAS; LARSEN
• Citation: Saenz v. Southern Union Gas Co., 916 S.W.2d 703 (Tex. App. 1996)
• Decision Date: 15 February 1996
• Docket Number: No. 08-95-00170-CV,08-95-00170-CV
• Parties: Alfonso SAENZ, Appellant, v. SOUTHERN UNION GAS COMPANY, Appellee.

Page 703

916 S.W.2d 703

Alfonso SAENZ, Appellant, v. SOUTHERN UNION GAS COMPANY, Appellee.

No. 08-95-00170-CV.

Court of Appeals of Texas El Paso.

Feb. 15, 1996.

Rehearing Overruled March 13, 1996.

Mike Milligan, El Paso, for Appellant.

John Landrum Foster, Minton, Burton, Foster & Collins, Austin, for Appellee.

Before BARAJAS, C.J., and LARSEN and McCLURE, JJ.

OPINION

LARSEN, Justice.

In this appeal, Alfonso Saenz challenges the trial court's summary judgment favoring his former employer, Southern Union Gas Company (SUG). Finding that the trial court erred in granting summary judgment without requiring SUG to first file special exceptions and allowing plaintiff the opportunity to amend, we reverse and remand for further proceedings.

FACTS

Alfonso Saenz was employed by SUG for thirty-one years. On April 6, 1988, he sustained an on-the-job back injury. As a crew member in the construction and maintenance department, it was Saenz's main duty to operate a backhoe. He received worker's compensation benefits for the first six months after the injury and worked on an irregular basis during the two years following. After settling his compensation claim in early 1990, Saenz contacted Betty Martin, the Personnel and Safety Coordinator for SUG, about returning to work. Saenz could not return to his former position without accommodation because his medical limitations would not permit him to perform the job's physical requirements. He asked repeatedly that SUG give him a light duty job or make other accommodations that would permit him to return to work. SUG made no accommodations, but informed Saenz he would be considered for other positions when his medical condition improved or a job for which he was qualified became available. He has never been offered another position with his former employer.

After Saenz's initial efforts to return to work were unsuccessful, his attorney informed SUG that if they fired Saenz, he would file suit alleging discrimination under TEX.REV.CIV.STAT.ANN. art. 8307c (now TEX.LABOR CODE ANN. § 451.001 (Vernon Pamph.1996) as well as raise discrimination claims on the basis of age, national origin, and disability under applicable state and federal statutes. When SUG did not comply with Saenz's requests to accommodate his limitations, he filed this suit, which claimed that "[a] significant motivating factor underlying [SUG's] conduct ... was a desire to discharge and otherwise discriminate against Plaintiff because he notified Defendant that he had sustained a compensable injury...."

SUMMARY JUDGMENT SHOULD NOT ISSUE ON DEFECTIVE PLEADINGS

SUG's motion for summary judgment alleged that Saenz has not stated an actionable claim; Saenz counters that he has alleged discrimination, prohibited under the labor code. SUG's motion for summary judgment states one ground only:

The Defendant is entitled to judgment as a matter of law because the Plaintiff fails to allege a cause of action recognized at law. In Plaintiff's admissions and in Plaintiff's Original Petition, ... the Plaintiff alleges that the Defendant breached its duty to consider reasonable accommodations that would have enabled Plaintiff to continue working. Defendant would show that it has no such duty. Although there are accommodation requirements under the Americans With Disabilities Act and/or the Texas Commission on Human Rights Act, Plaintiff has not pursued remedies under those Acts. Further, no accommodation requirement is imposed upon Texas employers by the Workers' Compensation Act. Lastly, the common law imposes no accommodation requirement upon Texas employers. Therefore, Plaintiff seeks to impose a duty upon the Defendant that does not exist at law.

SUG made no attempt to file special exceptions to plaintiff's pleading before filing its motion for summary judgment. Neither did the trial court give Saenz the opportunity to amend his claim before dismissing the suit. Saenz asserts on appeal that he has made out a valid cause of action under the labor code. He claims SUG "otherwise discriminated" against him by refusing to provide accommodation for his physical limitations, while it made special accommodation for workers with disabling conditions not caused by on-the-job injuries. SUG counters that Saenz has allowed admissions to be deemed against him, establishing SUG's right to judgment as a matter of law.

Saenz asserts...