Swearingen v. Owens-Corning Fiberglas Corp.

• Decision Date: 19 August 1992
• Docket Number: No. 91-1707,OWENS-CORNING,91-1707
• Citation: 968 F.2d 559
• Parties: 123 Lab.Cas. P 57,110, 7 IER Cases 1221 Vergie SWEARINGEN, Plaintiff-Appellant, v.FIBERGLAS CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 559

968 F.2d 559

123 Lab.Cas. P 57,110, 7 IER Cases 1221

Vergie SWEARINGEN, Plaintiff-Appellant, v. OWENS-CORNING FIBERGLAS CORPORATION, Defendant-Appellee.

No. 91-1707.

United States Court of Appeals Fifth Circuit.

Aug. 19, 1992.

Durwood D. Crawford, Goins, Underfofler, Crawford & London, Dallas, Tex., for plaintiff-appellant.

Michael V. Abcarian and Iwana Rademaekers, Arter & Hadden, Dallas, Tex., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before GOLDBERG, DUHE, and BARKSDALE, Circuit Judges.

GOLDBERG, Circuit Judge:

Man must evolve for all human conflict a method which rejects revenge ... and retaliation.

Martin Luther King, Jr., Speech Accepting the Nobel Peace Prize (Dec. 11, 1964).

This is a retaliatory discharge case. The Texas legislature created a narrow exception to the Texas common law employment-at-will doctrine when it enacted article 8307c of the workers' compensation laws. Tex.Rev.Civ.Stat.Ann. art. 8307c, § 1 (Vernon Supp.1992). Unchanged since its passage in 1971, article 8307c protects employees who file workers' compensation claims, hire attorneys to represent them in workers' compensation claims, assist in filing workers' compensation claims or testify at hearings concerning workers' compensation claims from discrimination by employers. Article 8307c represents a method, in Dr. King's words, for rejecting retaliation by employers against employees claiming the benefits of the workers' compensation system in Texas.

In this appeal, we decide whether an employer that terminates an employee for an excessive absence from work pursuant to an absence control policy after the employee experienced a job-related injury violates article 8307c, the Texas retaliatory discharge statute. We decline to certify the issue involved in this appeal to the Texas Supreme Court. And, because the employee cannot prove that the employer terminated her for one of the four reasons prohibited by the statute, we affirm the district court's entry of judgment for the defendant employer.

I. BACKGROUND

On February 28, 1986, Vergie Swearingen sustained a work-related injury while employed by Owens-Corning Fiberglas Corporation ("OCF") at its plant in Waxahachie, Texas. Swearingen then applied for and received workers' compensation benefits. Swearingen could not return to work for medical reasons for about four years.

As an employee of OCF, Swearingen belonged to the collective bargaining unit represented by the Glass, Pottery, Plastics and Allied Workers International Union ("Union"). The collective bargaining agreement between OCF and the Union contained an "absence control provision," which stated that "[a]n employee will lose seniority rights ... [i]f off work ... twenty-four consecutive months." ¹ On September 26, 1988, the Personnel Manager at OCF wrote Swearingen a letter referencing the absence control provision and terminating Swearingen effective that day because her absence on medical leave exceeded twenty-four months. Swearingen attempted to return to work at OCF in the spring of 1990, after her physician released her to return to work with certain restrictions. Swearingen then discovered that, under the absence control provision of the collective bargaining agreement, she had lost her seniority rights and that OCF had terminated her employment.

Swearingen sued OCF, claiming that OCF retaliated against her for filing a workers' compensation claim in violation of article 8307c. Swearingen moved for partial summary judgment on the issue of liability, urging the district court to hold that 8307c "prohibits termination of an employee for excessive absence when that absence is a result of a work-related injury for which the employee has filed a workers' compensation claim." OCF argued that 8307c did not protect an employee terminated for violating "an absence control policy neutrally applicable to all employees." The district court found no Texas cases resolving the issue, looked to decisions interpreting similar retaliatory discharge statutes in other states and held that 8307c does not prohibit an employer from enforcing a "neutrally applied absence control policy" against a workers' compensation claimant. The court denied Swearingen's motion for summary judgment because significant issues of material fact remained: Whether OCF applied the absence control policy in a discriminatory manner and whether OCF retaliated against Swearingen within the meaning of 8307c.

Swearingen then moved for reconsideration of the court's order on her motion for partial summary judgment or, alternatively, entry of final judgment pursuant to the order. Swearingen urged the court to reconsider its interpretation of article 8307c, admitting that she had no evidence to "prove a discriminatory application of [OCF's absence control] policy against [her]." Alternatively, Swearingen asked the court to enter final judgment. The court denied the motion for rehearing and granted the motion for entry of final judgment, entering a take-nothing judgment against plaintiff Swearingen. Swearingen now appeals. She has filed a motion requesting this Court to certify the issue involved in this appeal to the Texas Supreme Court.

II. ARTICLE 8307c

Summary judgment is appropriate only if no genuine issue exists over any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); see International Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1263 (5th Cir.1991) (citation omitted), cert. denied, --- U.S. ----, 112 S.Ct. 936, 117 L.Ed.2d 107 (1992). In reviewing a summary judgment decision, the court of appeals employs this same standard used by the district court. Swearingen does not argue that any genuine issue of material fact precluded summary judgment, but, rather, that the district court erroneously interpreted article 8307c as justifying judgment for the defendant as a matter of law. This Court reviews " 'de novo a district court's determination of state law' without deference to the district court." Jones v. Roadway Express, Inc., 931 F.2d 1086, 1088 (5th Cir.1991) (denying petition for rehearing) (quoting Salve Regina College v. Russell, --- U.S. ----, ----, 111 S.Ct. 1217, 1221, 113 L.Ed.2d 190 (1991)). Our task in this appeal focuses on whether the undisputed facts entitled defendant OCF to judgment as a matter of law. We hold that the district court correctly applied the relevant state law, article 8307c, to the undisputed facts.

Article 8307c is a statutory exception to the Texas common law employment-at-will doctrine. Thurman v. Sears, Roebuck & Co., 952 F.2d 128, 131 (5th Cir.1992) (citing Winters v. Houston Chronicle Publishing Co., 795 S.W.2d 723, 724 n. 1 (Tex.1990)). The statute provides that

[n]o person may discharge or in any other manner discriminate against any employee because the employee has in good faith filed a claim, hired a lawyer to represent [her] in a claim, instituted, or caused to be instituted, in good faith, any proceeding under the Texas Workmen's Compensation Act, or has testified or is about to testify in any such proceeding. ²

Tex.Rev.Civ.Stat.Ann. art. 8307c, § 1 (Vernon Supp.1992). Through article 8307c, the Texas legislature generally expressed " 'the state's public policy of protecting its important interest in insuring that its work[ers'] compensation law can function to the benefit of its intended beneficiaries employees, without coercion or unjust treatment from their employers as a result of exercising their rights under that law.' " Roadway Express, 931 F.2d at 1090 (quoting Carnation Co. v. Borner, 588 S.W.2d 814, 819 (Tex.Civ.App.--Houston [14th Dist.] 1979), aff'd, 610 S.W.2d 450 (Tex.1980)); see Harris v. American Red Cross, 752 F.Supp. 737, 739 (W.D.Tex.1990) (quoting Carnation, 610 S.W.2d at 453).

The employee bears the initial burden of establishing a causal link between the "discharge and [the] claim for workers' compensation." Roadway Express, 931 F.2d at 1090 (citing Hughes Tool Co. v. Richards, 624 S.W.2d 598, 599 (Tex.Civ.App.--Houston [14th Dist.] 1981, writ ref'd n.r.e.), cert. denied, 456 U.S. 991, 102 S.Ct. 2272, 73 L.Ed.2d 1286 (1982)); Azar Nut Co. v. Caille, 720 S.W.2d 685, 687 (Tex.App.--El Paso 1986), aff'd, 734 S.W.2d 667 (Tex.1987); see Tex.Rev.Civ.Stat.Ann. art. 8307c, § 2 (placing burden of proof on the employee). The employee only needs to prove that the workers' compensation claim represented a "determining factor" in the discharge, not that the employer discharged her solely because of the claim. Roadway Express, 931 F.2d at 1090 (citing Azar Nut, 720 S.W.2d at 687). Retaliation, then, only needs to be "a reason" for discharge to permit an employee to recover under 8307c. Id.; Hunt v. Van Der Horst Corp., 711 S.W.2d 77, 79 (Tex.App.--Dallas 1986, no writ); see also Santex, Inc. v. Cunningham, 618 S.W.2d 557, 559 (Tex.Civ.App.--Waco 1981, no writ) ("even if there are other reasons," an employer cannot use the filing of a workers' compensation claim "as a reason to discharge or otherwise discriminate against an employee"). Once the employee establishes the causal link, "the employer must rebut [the alleged discrimination] by showing a legitimate reason for the discharge." Roadway Express, 931 F.2d at 1090 (citing Hughes, 624 S.W.2d at 599).

Appellant Swearingen argues that the district court erred in interpreting 8307c and urges this Court to construe the statute more broadly than did the district court. No Texas courts have confronted the issue we decide today. Swearingen argues that Texas courts generally give article 8307c a broad meaning. Moreover, Swearingen contends that the district court should have followed state court decisions holding that application of similar absence control policies violated the other states' retaliatory discharge statutes; these holdings parallel the Texas Attorney General's opinion of article 8307c and, to Swearingen,...