IN THE
TENTH COURT OF APPEALS
No. 10-96-146-CV
WILLIAM T. "DUB" DRAPER,
Appellant
v.
ROCKETT SPECIAL UTILITY DISTRICT,
Appellee
From the 40th District Court
Ellis County, Texas
Trial Court # 53051
O P I N I O N
Dub Draper filed suit against his former employer, Rockett Special Utility District, for wrongful discharge. Draper alleged that Rockett discharged him in retaliation for filing a worker’s compensation claim in violation of the former article 8307c. Act of April 22, 1971, 62nd Leg., R.S., ch. 115, § 1, 1971 Tex. Gen. Laws 884, (former Tex. Rev. Civ. Stat. Ann. art. 8307c) repealed by Act of May 12, 1993, 73rd Leg., R.S., ch. 269, § 5, 1993 Tex. Gen. Laws 987, 1273 (current version at Tex. Lab. Code Ann. § 451.001 (Vernon 1996)); (hereinafter referred to as “Tex. Rev. Civ. Stat. Ann. art. 8307c”). Draper also alleged that he was wrongfully discharged under a breach of contract theory.
The parties conducted discovery, and the court granted Rockett’s motion for protection and to quash Draper’s first request for admissions. The court ordered Draper to pay Rockett’s attorney’s fees. The court granted Rockett’s motion for summary judgment over Draper’s objections to Rockett’s summary judgment affidavits.
Draper’s first point of error alleges that the court erred in granting Rockett’s motion for summary judgment. In his second point, Draper asserts that the court erred in overruling his objections to Rockett’s summary judgment affidavits. The third point of error urges that the court erred and abused its discretion by imposing discovery sanctions.
FACTUAL BACKGROUND
Draper began working for Rockett as a maintenance foreman on June 15, 1981. His job duties included supervising maintenance crews as they repaired water leaks, laid water lines, and maintained pump stations. While supervising a crew repairing a water line on June 4, 1993, Draper slipped down a ditch and injured his back. Later that evening, Draper’s wife took him to the emergency room. Draper returned to work on Monday and worked the whole week. However, Draper’s back was hurting and he did not return to work after that week. Rockett filed a worker’s compensation claim with its carrier for Draper’s injuries on June 15.
Draper began receiving payments from the worker’s compensation carrier. By letter dated July 30, Rockett stated that Draper would be terminated as an employee effective August 2. The letter stated that employment had been continued under the assumption that the injury would be short term. However, it was now necessary to fill the position.
SUMMARY JUDGMENT
Draper alleges that the court erred by granting Rockett’s motion for summary judgment. The summary judgment disposed of both the retaliatory discharge claim under article 8307c and the wrongful discharge on a breach of contract theory. We must determine whether the summary judgment was proper as to both of these claims.
In a summary judgment proceeding, the movant has the burden to establish that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Nixon v. Mr. Property Mgmt. Co., Inc., 690 S.W.2d 546, 548 (Tex. 1985). All evidence which favors the non-movant is taken as true. Id. at 548-549. Every reasonable inference is indulged and all doubts are resolved in favor of the non-movant. Id. at 549.
RETALIATORY DISCHARGE
Draper alleges that he was terminated in retaliation for filing a worker’s compensation claim for his on-the-job injury. Retaliatory discharge violates article 8307c, which provides as follows:
A person may not discharge or in any manner discriminate against an employee because the employee has:
(1) filed a worker’s compensation claim in good faith. . .
Tex. Rev. Civ. Stat. Ann. Art. 8307c. An employer who violates 8307c is liable for reasonable damages incurred by the employee, and the employee is entitled to reinstatement in the former position of employment. Id.
As a special utility district, Rockett falls under the definition of a political subdivision. Act of December 12, 1989, 71st Leg., 2d C.S., ch. 1, § 15.46, 1989 Tex. Gen. Laws 1, 112, (former Tex. Rev. Civ. Stat. Ann. art. 8309h) repealed by Act of May 12, 1993, 73rd Leg., R.S., ch. 269, § 5, 1993 Tex. Gen. Laws 987, 1273 (current version at Tex. Lab. Code Ann. § 504.001 (Vernon 1996). The Political Subdivisions Law, former article 8309h, waives immunity for defined political subdivisions from liability arising under article 8307c. See City of LaPorte v. Barfield, 898 S.W.2d 288, 299 (Tex. 1995); Act of December 12, 1989, 71st Leg., 2d C.S., ch. 1, § 15.47, 1989 Tex. Gen. Laws 1, 113, (former Tex. Rev. Civ. Stat. Ann. art. 8309h) (repealed 1993); (current version at Tex. Lab. Code Ann. § 504.002 (Vernon 1996); (hereinafter referred to as “Tex. Rev. Civ. Stat. Ann. art. 8309h”).
In Barfield, the court determined that the Legislature intended article 8309h and section 504.002 to waive immunity for defined political subdivisions for retaliatory discharge. Barfield, 898 S.W.2d at 299. The Political Subdivisions Law further provides:
Nothing in this Act or the Texas Workers’ Compensation Act shall be construed to authorize causes of action or damages against a political subdivision or employee of a political subdivision beyond the actions and damages authorized by the Texas Tort Claims Act [Chapter 101, Civil Practice and Remedies Code].
Tex. Rev. Civ. Stat. Ann. art. 8309h.
Therefore, a political subdivision is liable for retaliatory discharge claims subject to the “limitations of the Tort Claims Act.” Barfield, 898 S.W.2d at 299; Kuhl v. City of Garland, 910 S.W.2d 929, 931 (Tex. 1995); Cf. Carrillo v. Texas Tech Univ. Health Sciences Ctr., No. 08-96-00316-CV, slip op. at 5, (Tex. App.—El Paso Nov. 21, 1997, n.w.h.) (finding that Political Subdivisions Law waived immunity for defined political subdivisions but not for state agencies). Rockett argues that Draper was required to give notice of his claim under the Tort Claims Act. See Tex. Civ. Prac. & Rem. Code Ann. § 101.101 (Vernon 1997). Rockett argues that the notice requirement is a “limitation of the Tort Claims Act.” The Political Subdivisions Law clearly states that “causes of action and damages” are not authorized beyond the “actions and damages authorized by the Tort Claims Act.” The Kuhl case gives examples of “limitations of the Tort Claims Act” such as the cap on actual damages and the prohibition of punitive damages. See Id. §§ 101.023, 101.024.
We believe the “limitations of the Tort Claims Act” for purposes of the Political Subdivisions Law are the damage limitations set forth in the Tort Claims Act. Therefore, we conclude that the notice requirement is not a “limitation of the Tort Claims Act.” Accordingly, Draper was not required to give notice of his retaliatory discharge claim. Id. § 101.101.
Rockett also argues that the after-acquired evidence doctrine bars Draper’s retaliatory discharge claim. See Jordan v. Johnson Controls, Inc., 881 S.W.2d 363, 369 (Tex. App.—Dallas 1994, writ denied). Rockett alleges that after Draper was terminated it received information that Draper had attempted to sell parts that belonged to Rockett. Rockett contends that this misconduct would have been grounds for immediate termination.
However, the Texas Supreme Court has recently decided that after-acquired evidence does not bar a claim of retaliatory discharge but rather limits the employee’s recovery. See Trico Techs. Corp. v. Montiel, 949 S.W.2d 308, 312 (Tex. 1997). In Trico, the Court held that such misconduct bars reinstatement and actual damages only for the period after the employer discovered the misconduct. Id.
However, Rockett must first establish that Draper actually converted property and that this was grounds for immediate termination. Rockett provided affidavits to support its claim that Draper converted Rockett’s property. Draper’s affidavit stated that he did not convert any of Rockett’s property. Taking Draper’s evidence as true, we find that a fact issue exists regarding this alleged misconduct, which must be resolved by a jury. See Nixon, 690 S.W.2d at 548-549.
Rockett also argues that Draper cannot recover lost wages because he was not able to perform the essential functions of a maintenance foremen. However, we also find that a fact issue exists regarding Draper’s ability to perform the essential functions of a maintenance foreman. Draper provided medical records which show that Draper was cleared to return to limited work six weeks after he was terminated. The medical records also state that Draper would be able to return to full work in December of 1993. Thus, fact issues exist about Draper’s ability to perform the functions of a maintenance foreman.
Because the after-acquired evidence doctrine does not bar the retaliatory discharge claim, Rockett has failed to establish that it is entitled to summary judgment as a matter of law. Id. at 548. Further, material issues of fact exist regarding Draper’s alleged misconduct and his ability to perform the essential functions of a maintenance foreman. Id. Therefore, we find that the court erred in granting a summary judgment on the retaliatory discharge claim.BREACH OF CONTRACT
Draper also alleges that the court erred in granting a summary judgment on his wrongful discharge under a breach of contract theory. Draper argues that Rockett breached its administrative policies by failing to invoke progressive disciplinary procedures before terminating Draper.
Employment in Texas is terminable at-will by either party, with or without cause, absent an express agreement to the contrary. Federal Express Corp. v. Dutschmann, 846 S.W.2d 282, 283 (Tex. 1993); East Line & R.R.R. Co. v. Scott, 72 Tex. 70, 10 S.W. 99, 102 (1888). An employee can recover for wrongful discharge if it can be proved that the employee and the employer entered into an agreement that specifically provided that the employee would only be terminated for good cause. Loftis v. Town of Highland Park, 893 S.W.2d 154, 155 (Tex. App.—Eastland 1995, no writ); Day & Zimmermann, Inc. v. Hatridge, 831 S.W.2d 65, 68 (Tex. App.—Texarkana 1992, writ denied); Salazar v. Amigos Del Valle, Inc., 754 S.W.2d 410, 413 (Tex. App.—Corpus Christi 1988, no writ); Webber v. M.W. Kellogg Co., 720 S.W.2d 124, 127 (Tex. App.—Houston [14th Dist] 1986, writ ref’d n.r.e.).
Draper argues that the administrative policies constitute an agreement that Draper would only be terminated in accordance with the disciplinary procedures. The administrative policies contain a section entitled “Work Schedule and Policy.” Provisions seven and eight of this section provide:
7. Failure to punch in or out will result in disciplinary action
a. 1st time a verbal reprimand
b. 2nd time a written reprimand
c. 3rd time - will be grounds for dismissal
8. This set of disciplinary action will be enforced on all policies of Rockett S.U.D.
Draper argues that an employee had to be reprimanded three times for the same offense before Rockett could terminate the employee. Draper asserts that these disciplinary provisions circumvent the at-will employment doctrine.
Courts usually find that general statements about employee disciplinary procedures in employment literature such as manuals and handbooks are not sufficient to change the at-will employment relationship except where the literature “specifically and expressly curtails the employer’s right to terminate the employee.” Figueroa v. West, 902 S.W.2d 701, 705 (Tex. App.—El Paso 1995, no writ); Loftis, 893 S.W.2d at 155; McAlister v. Medina Elec. Coop., Inc., 830 S.W.2d 659, 664 (Tex. App.—San Antonio 1992, writ denied); Benoit v. Polystar Gulf Coast, Inc., 728 S.W.2d 403, 406 (Tex. App.—Beaumont 1987, writ ref’d n.r.e.).
The employment literature must restrict the at-will relationship in “a meaningful and special way.” Figueroa, 902 S.W.2d at 705; Stiver v. Texas Instruments, Inc., 750 S.W.2d 843, 846 (Tex. App.—Houston [14th Dist.] 1988, no writ). Employee handbooks must contain a specific contractual term altering at-will status. Figueroa, 902 S.W.2d at 705; See Maus v. National Living Ctrs., Inc., 633 S.W.2d 674, 675 (Tex. App.—Austin 1982, writ ref’d n.r.e.).
The administrative policies in this case do not expressly state that Rockett’s right to terminate has been curtailed in any way. See Figueroa, at 705. The disciplinary procedures only say that a third offense is grounds for dismissal. However, this does not mean that there are not other grounds for dismissal or that termination must be for good cause. The disciplinary procedures do not restrict the at-will employment relationship in a “meaningful and special way.” Id. No contractual term is present in the policies which alters the at-will employment relationship. Id.
Rockett’s administrative policies do not alter the at-will employment relationship. See Federal Express, 846 S.W.2d at 283. Therefore, Draper cannot prevail on his contract claim for wrongful discharge. Accordingly, we find that no issue of material fact exists and Rockett is entitled to summary judgment as a matter of law on Draper’s wrongful discharge claim for breach of contract. See Nixon, 690 S.W.2d at 548. Therefore, we affirm the summary judgment as to Draper’s contract claim.
In his second point of error, Draper asserts that the court erred in overruling his objections to Rockett’s summary judgment affidavits. Having already reversed the summary judgment on the retaliatory discharge claim, we need not consider whether the affidavits were objectionable requiring a reversal on that basis. Further, we have affirmed the summary judgment on the contract claim on the basis of the at-will employment relationship. We do not rely on any of the alleged faulty affidavits in finding that the at-will employment doctrine bars a breach of contract claim. Therefore, we need not address the validity of Rockett’s summary judgment affidavits.
DISCOVERY SANCTIONS
In his third point of error, Draper asserts that the court abused its discretion by imposing discovery sanctions. According to Draper, the court erred in granting Rockett’s motion for protection and to quash and in ordering Draper to pay attorney’s fees.
On December 12, 1995, Draper served Rockett with his first request for admissions which included 651 requests. Rockett filed a motion for protection and to quash Draper’s requests for admissions. In the motion, Rockett stated that Draper abused the discovery process by seeking, or making discovery that was “unreasonably frivolous, oppressive, and harassing.” See Tex. R. Civ. P. 215(3). Rockett alleged that the requests for admissions were served in retaliation for failure to settle the case. Rockett also asserted that the requests for admissions were duplicative and requested information already obtained through deposition testimony.
On January 10, the Court held a hearing on Rockett’s motion. The court heard counsel’s argument on all 651 of the requests. The court made a ruling on the record on each request. At the conclusion of the hearing, the court granted the motion for protection and to quash and ordered Draper to pay $1,200 in attorney’s fees.
The court signed an order on January 12 which states:
. . . The court after examining the evidence and pleadings on file with this court, and having heard the arguments of counsel finds the totality of Plaintiff’s First Request for Admissions unreasonable, oppressive, harassing and unnecessary and is of the opinion that Defendant’s Motion for Protection and to Quash Plaintiff’s First Request for Admissions should be GRANTED.
The order then awards Rockett $1,200 in attorney’s fees which constitutes Rockett’s time to prepare and argue the motion.
Discovery sanctions cannot be appealed until a final judgment has been rendered. Bodnow Corp. v. City of Hondo, 721 S.W.2d 839, 840 (Tex. 1986). Because the summary judgment rendered against Draper disposed of his two claims and was therefore final, the sanctions are appealable.
The trial court may impose sanctions on any party who abuses the discovery process. Id.; Tex. R. Civ. P. 215(3). Discovery sanctions are within a trial court’s discretion and will only be set aside if the court clearly abused its discretion. Bodnow, 721 S.W.2d at 840. A trial court does not abuse its discretion just because the appellate court would decide the issue in a different way. Southwestern Bell Tel. Co. v. Johnson, 389 S.W.2d 645, 648 (Tex.1965).
“The test for abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court’s action. Rather, it is a question of whether the court acted without reference to any guiding rules and principles.” Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985); Westfall Family Farms, Inc., v. King Ranch, Inc., 852 S.W.2d 587, 590 (Tex. App.—Dallas 1993, writ denied).
Rule 215 guides us in this case:
If the court finds a party is abusing the discovery process in seeking, making or resisting discovery, . . .then the court in which the action is pending may, after notice and hearing, impose any appropriate sanction authorized by paragraphs (1), (2), (3), (4), (5), and (8) of paragraph 2b of this rule.
Tex. R. Civ. P. 215(3). Appropriate sanctions include disallowing further discovery, striking pleadings, and awarding attorney’s fees.
A trial court abuses its discretion if the sanction imposed does not further the purpose of discovery sanctions. Bodnow, 721 S.W.2d at 840. “The legitimate purpose of discovery sanctions are threefold: 1) to secure compliance with discovery rules; 2) to deter other litigants from similar misconduct; and 3) to punish violators.” Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 849 (Tex. 1992); Bodnow, 721 S.W.2d at 840. Further, discovery sanctions must be just under the circumstances. TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991).
Two standards measure whether a discovery sanction is just. Id. First, a direct relationship must exist between the offensive conduct and the sanction imposed. Id. Therefore, a just sanction must be directed toward the abuse and remedy the prejudice caused to the innocent party. Id. Second, the sanction must not be excessive. Id.
In the present case, the court heard argument on all 651 requests. Although sustaining relatively few objections, the court decided that the totality of Draper’s requests for admissions was unreasonable, oppressive, harassing and unnecessary. See Tex. R. Civ. P. 215(3). The court then granted the motion for protection and to quash and ordered Draper to pay attorney’s fees.
The sanctions imposed further the legitimate purpose of discovery sanctions. See Chrysler, 841 S.W.2d at 849. The sanctions of disallowing the requests for admissions and allowing attorney’s fees serve to punish Draper for abusing the discovery process. Id. Further, the sanctions deter other litigants from abusing the process. Id. The sanctions also secure compliance with rule 215(3). Id.
The sanctions imposed are also just. See TransAmerican, 811 S.W.2d at 917. The sanctions are directly related to the offensive conduct. Id. The court found the requests to be an abuse of the discovery process and therefore protected Rockett from answering them. The sanctions are not excessive. Id.
For these reasons, we conclude that the court did not abuse its discretion when it granted Rockett’s motion for protection and ordered Draper to pay attorney’s fees. See Downer, 701 S.W.2d at 241-42. We overrule Draper’s third point of error.
CONCLUSION
We have determined that the trial court erred in granting summary judgment on Draper’s retaliatory discharge claim under former article 8307c but properly granted summary judgment on wrongful termination under a breach of contract theory. We do not rely on the disputed summary judgment affidavits. We also uphold the award of discovery sanctions.
Therefore, we affirm the judgment in part, and reverse the judgment in part. We affirm the judgment denying any recovery on the breach of contract claim and affirm the order granting sanctions. Those claims are severed from the retaliatory discharge claim and are made final. The retaliatory discharge claim is remanded to the trial court for further proceedings consistent with this opinion.
REX D. DAVIS
Chief Justice
Before Chief Justice Davis
Justice Cummings and
Justice Vance
Affirmed in part; reversed and remanded in part
Opinion delivered and filed December 17, 1997
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