Mitchell v. John Wiesner, Inc.

923 S.W.2d 262, 1996 Tex. App. LEXIS 2207, 1996 WL 283905

• Court: Court of Appeals of Texas
• Decided: May 30, 1996
• Docket: 09-95-135 CV
• Status: Published

Opinions

OPINION

BURGESS, Justice.

This is a summary judgment case. On February 17,1993, Vicki Mitchell, an employee of John Wiesner, Inc., filed a claim with the Industrial Accident Board alleging she suffered an on-the-job-injury on February 15, 1993.¹ On March 8, 1993, Mitchell was terminated. Mitchell filed suit pursuant to Tex.Rev.Civ.Stat.Ann. art. 8307c (Vernon Supp.1989)² alleging she had been discharged in retaliation for filing a workers’ compensation claim.

Weisner filed a motion for summary judgment raising the after-acquired evidence doctrine and relying upon Jordan v. Johnson Controls, 881 S.W.2d 363 (Tex.App. — Dallas 1994, writ denied).³ Weisner submitted, as summary judgment evidence, a portion of Mitchell’s deposition and the affidavit of Cecile Hanus, Weisner’s business manager. Ms. Hanus’ affidavit stated she was the individual responsible for “hiring and firing certain persons” such as Mitchell, she made the initial determination to employ Mitchell for a 90-day probationary period, the job required a high school diploma, Mitchell’s application claimed she had a high school diploma, Mitchell would not have been hired if Hanus had known Mitchell did not have the diploma, that Mitchell lying on her application was grounds for discharge and she would have been discharged. Mitchell’s deposition established she did not have a high school diploma.

Mitchell filed a response to the motion for summary judgment, with an affidavit from Mitchell, objecting to the deposition evidence because the deposition was not on file and objecting to the Hanus’ affidavit as hearsay, lack of personal knowledge and unsubstantiated opinion, being the affidavit of an interested witness which is not clear, positive, direct credible, free from contradiction and cannot be easily controverted. Further, Mitchell denied the applicability of the after-acquired evidence doctrine. Mitchell’s affidavit alleged Britta [sic] Tarver hired and fired her and verified, as a true and correct copy, the termination letter from Wiesner, signed by Brita Tarver.⁴

Wiesner filed an amended motion for summary judgment which was identical to the original motion except it relied upon the affidavit of Angela McCreery Bacon. Bacon’s affidavit stated she was the former billing clerk of Wiesner during the period in question, she knew the policies and rules of Wies-ner, Mitchell was employed on a standard 90-day probationary period, Mitchell stated in her employment application that she had a high school diploma, the position Mitchell was applying for required a high school diploma, Mitchell would not have been hired if her application had been completed accurately and it was grounds for discharge to submit a falsified application. The trial court granted the amended motion for summary judgment.

Mitchell brings a single point of error: “The trial court erred in granting appellee’s motion for summary judgment.”⁵ Mitchell argues (1) the affirmative defense of after-acquired evidence is not a valid defense of an article 8307c claim and, therefore, Jordan v. Johnson Controls should not be followed and (2) if the after-acquired evidence defense is valid, a fact question exists.

Tex.Rev.Civ.Stat.Ann. art. 8307c has been referred to as the “Anti-Retaliation Law”⁶. The Anti-Retaliation Law’s purpose is to protect persons who are entitled to benefits under the workers’ compensation act and to prevent them from being discharged for having taken steps to collect such benefits. Carnation Co. v. Borner, 610 S.W.2d 450, 453 (Tex.1980). To prove an Anti-Retaliation Law claim, the plaintiff need not show the discharge was solely because of the workers’ compensation claim; even if other reasons for discharge exist, the worker may recover if retaliation is also a reason. Azar Nut Co. v. Caille, 720 S.W.2d 685, 687 (Tex.App. — El Paso 1986), affirmed, 734 S.W.2d 667 (Tex.1987). The opinions of a sister court of appeals are not precedent that bind other courts of appeals, Eubanks v. Mullin, 909 S.W.2d 574 (Tex.App. — Fort Worth 1995, no writ), therefore we are not bound by Jordan v. Johnson Controls7 Nor can we improve on that portion of Chief Justice McGarry’s dissent entitled “The After-acquired Evidence Defense is Inconsistent with the Established Law of Retaliatory Discharge”, Jordan, 881 S.W.2d at 371, and that portion of Justice Chapman’s dissent entitled “Public Policy”, Jordan, 881 S.W.2d at 374. Therefore, we do not adopt the after acquired evidence defense in Texas as it relates to Anti-Retaliation Law claims. The summary judgment is reversed.

REVERSED AND REMANDED.

1 . The Texas Worker’s Compensation Appeals Panel found in favor of Mitchell. The workers' compensation carrier filed suit and the district court granted the carrier an instructed verdict. This court, in an unpublished opinion, reversed and remanded for a new trial. Mitchell v. Service Lloyds Ins. Co., No. 09-94-382 CV (Tex. App. — Beaumont January 25, 1996, application for writ pending).

2 . Now Tex.Lab.Code Ann. § 451.001(1) (Vernon Pamph.1996).

3 . In Jordan, the Dallas Court of Appeals adopted the after-acquired evidence doctrine in article 8307c cases.

4 . The grounds for termination were absenteeism, confrontations with co-workers and substandard work habits.

5 . See Malooly Brothers, Inc. v. Napier, 461 S.W.2d 119 (Tex.1970).

6 . City of LaPorte v. Barfield, 898 S.W.2d 288, 293 (Tex.1995).

7 . One of our sister courts has declined to follow a plurality opinion of the Court of Criminal Appeals. See Hatcher v. State, 916 S.W.2d 643 (Tex.App. — Texarkana 1996, n.w.h.).