Sanchez v. Johnson & Johnson Medical, Inc.

• Decision Date: 23 June 1993
• Docket Number: No. 08-92-00348-CV,08-92-00348-CV
• Citation: 860 S.W.2d 503
• Parties: Martha SANCHEZ, Appellant, v. JOHNSON & JOHNSON MEDICAL, INC., f/k/a Surgikos, Inc., Appellee.
• Court: Texas Court of Appeals

Page 503

860 S.W.2d 503

Martha SANCHEZ, Appellant, v. JOHNSON & JOHNSON MEDICAL, INC., f/k/a Surgikos, Inc., Appellee.

No. 08-92-00348-CV.

Court of Appeals of Texas,

El Paso.

June 23, 1993.

Rehearing Overruled July 23, 1993.

Steven C. James, Beck & James, P.C., El Paso, for appellant.

Stephen F. Fink and Steven W. Sloan, Thompson & Knight, Dallas, for appellee.

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

OPINION

BARAJAS, Justice.

This is an appeal from the entry of summary judgment and a judgment notwithstanding the verdict in a case alleging wrongful discharge, breach of contract, and fraud. Martha Sanchez, Appellant, brought suit against Johnson & Johnson Medical, Inc., f/k/a Surgikos, Inc., Appellee, under Article 8307c of the Texas Workers' Compensation Act and further alleged claims for breach of contract and fraud when she was not permitted to return to work after being injured on the job. The trial court granted summary judgment in favor of Appellee on the claim of retaliatory discharge. After trial and a jury finding in favor of Appellant on the fraud claim, the trial court granted Appellee's motion for judgment notwithstanding the verdict. We reverse the judgment of the trial court.

I. SUMMARY OF THE EVIDENCE

Martha Sanchez, Appellant, was injured on April 10, 1987 while working for Johnson & Johnson Medical, Inc. f/k/a Surgikos, Inc., Appellee, as a material handler. More than seven months after her date of injury, on November 20, 1987, Richard Gonzalez, the Personnel Manager for Appellee, sent Appellant a letter that stated Appellant had been placed on "indefinite medical lay-off" and that she had "recall rights" under the labor agreement. Appellant understood the letter to mean that she had a right to be recalled to her job and that this right of recall was for an indefinite time.

Nellee Powell, a Personnel Assistant for Appellee, prepared an internal Wage Personnel Change Notice and Status Notification stating that Appellant had been placed on medical "lay-off" effective November 30, 1987. Also on this document, Powell checked the block signifying "Termination." Powell testified that the reason she did so was because, "I regard it as a termination of employment whether it was a lay-off or not. It was a termination of employment." This form was signed by Powell's Requesting Supervisor as well as her Supervisor's Department Manager. Powell additionally sent a form to the Texas Employment Commission indicating that Appellant's employment ended on November 30, 1987.

On March 25, 1988, Appellant was released to light-duty work. She took the release to Appellee, met with Nellee Powell and told her she was ready to come back to work full-time. Powell informed Appellant that no light duty positions were available but that she would be called when one came open. Powell prepared a memorandum of the meeting which reflects as follows:

Employee on lay-off status. Light duty work is not available. Advised employee that if her doctor releases to full duty she will be evaluated by company doctor & if we have any openings which she is eligible for she will be re-called otherwise to remain on lay-off.

Subsequent to this meeting, Appellant continued to call Appellee inquiring about work but was repeatedly told that there were no available positions. Furthermore, Belinda Callejo, an assistant in the Personnel Department, attempted to assure Appellant that no definite decision had been made concerning whether she could or could not come back to work.

In early 1989, Appellant met with Irma Christie, Appellee's Personnel Manager from April of 1988 until October 1989. The record shows that Christie promised Appellant that if she could establish that she had been fully released medically, she could have her job back. Appellant obtained the requested medical release, brought it to Appellee as requested, and was once again promised she would be called.

When Appellant was not contacted, she asked her attorney, Mark Howell, to call Appellee. Howell telephoned the company on March 30, 1989 and spoke with Irma Christie who informed him that Appellant was "standing in line" and since Appellee was expanding its work force, it looked good. Although Appellant was never contacted, the evidence at trial shows that light-duty jobs were in fact available back in March 1988, when Appellant had tried to come back to work. Furthermore, the evidence shows that employees who had been previously laid off for economic reasons, with less seniority than Appellant, had been recalled; and new employees were hired without contacting Appellant. Finally, from the period beginning January 1, 1987 and ending May 1, 1991, only one employee laid off for medical reasons was ever recalled.

Appellant filed suit on April 1, 1991 alleging violation of Article 8307c of the Texas Workers' Compensation Act. She later amended her petition to include claims for breach of contract and fraud. Appellee moved for summary judgment as to the 8307c claim, asserting statute of limitations. Appellee also attempted to remove the case to federal court by claiming federal law preempted Appellant's fraud claim. The federal court considered removability and remanded the matter to state court. The state trial court then granted summary judgment on the amended motion on May 29, 1992 as to the Article 8307c claim. Thereafter, the case went to trial on the fraud and breach of contract claims, and the jury returned a verdict in favor of Appellant for $275,000 on the fraud claim. ¹ Appellant sought entry of judgment. In response, Appellee moved for judgment notwithstanding the verdict on several grounds, which motion was granted. Appellant appeals the granting of summary judgment and judgment notwithstanding the verdict in favor of Appellee.

II. DISCUSSION

In Points of Error Nos. One through Six, Appellant complains of the trial court's granting of summary judgment in favor of Appellee on her claim of retaliatory discharge.

The standard of review on appeal is whether the successful movant at the trial level carried its burden of showing that there is no genuine issue of material fact and that a judgment should be granted as a matter of law. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex.1985); Hernandez v. Kasco Ventures Inc., 832 S.W.2d 629, 631 (Tex.App.--El Paso 1992, no writ). Thus, the question on appeal is not whether the summary judgment proof raises fact issues as to required elements of the movant's cause or claim, but whether the summary judgment proof establishes, as a matter of law, that there is no genuine issue of material fact as to one or more elements of the movant's cause or claim. Gibbs v. Gen. Motors Corp., 450 S.W.2d 827, 828 (Tex.1970).

In resolving the issue of whether the movant has carried this burden, all evidence favorable to the non-movant must be taken as true and all reasonable inferences, including any doubts, must be resolved in the non-movant's favor. Nixon, 690 S.W.2d at 548-49; Stoker v. Furr's, Inc., 813 S.W.2d 719, 721 (Tex.App.--El Paso 1991, writ denied). Where the defendants are the movants and they submit summary evidence disproving at least one essential element of each of plaintiff's causes of action, then summary judgment should be granted. Perez, 819 S.W.2d at 471; Bradley v. Quality Service Tank Lines, 659 S.W.2d 33, 34 (Tex.1983); Hernandez v. Kasco Ventures Inc., 832 S.W.2d at 633.

The above standard of review is altered when the movant relies on an affirmative defense to avoid liability. Instead of merely demonstrating the lack of a fact issue as to one element of the non-movants claim, the movant must establish each element of his defense as a matter of law. Munoz v. Gulf Oil Co., 693 S.W.2d 372, 373 (Tex.1984); Republic Bankers Life Insurance Co. v. Wood, 792 S.W.2d 768, 776 (Tex.App.--Fort Worth 1990, writ denied). Thus, when moving for summary judgment based on the running of limitations, the defendant must show that as a matter of law, the suit is barred by limitations. A.C. Collins Ford, Inc. v. Ford Motor Co., 807 S.W.2d 755, 759 (Tex.App.--El Paso 1990, writ denied).

When pursuing an Article 8307c "retaliatory discharge" suit, an aggrieved party has two years within which to institute litigation after the cause of action accrues. Thurman v. Sears Roebuck & Co., 952 F.2d 128, 131 (5th Cir.1992); Almazan v. United Servs. Auto. Ass'n, 840 S.W.2d 776, 780 (Tex.App.--San Antonio 1992, writ denied); Luna v. Frito-Lay, 726 S.W.2d 624, 625 (Tex.App.--Amarillo 1987, no writ); see also Smith v. Coffee's Shop for Boys and Men, 536 S.W.2d 83, 84 (Tex.Civ.App.--Amarillo 1976, no writ). A cause of action accrues under 8307c when facts exist authorizing the employee to seek judicial relief. See Thurman, 952 F.2d at 132; Luna, 726 S.W.2d at 628. In Thurman the Federal Court of Appeals for the Fifth Circuit, recognizing that ambiguities existed "as to the commencement date of the limitations period," held that "the limitations period for a suit for wrongful termination under Article 8307c will commence [i.e., presumably, accrues] when the employee receives unequivocal notice of his termination or when a reasonable person would know of his termination." Thurman, 952 F.2d at 134. Therefore, it was incumbent on Appellee to prove, as a matter of law, the date Appellant received unequivocal notice of her termination or when a reasonable person would have known that he was terminated. Id. at 134.

The summary judgment evidence indicates that Appellant filed suit on April 1, 1991. Based on this date, Appellee contends that its actions, upon which Appellant premises her cause of action, occurred more than two years prior to filing of the suit--i.e., before April 1, 1989. Nevertheless, we find that the record is wholly devoid of any date of "unequivocal termination." On November 20, 1987, a little more than seven months after her injury of ...