COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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RAUL RIVAS, No. 08-14-00010-CV
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Appellant, Appeal from
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v. 41st District Court
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SOUTHWEST KEY PROGRAMS, INC., of El Paso County, Texas
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Appellee. (TC # 2012DCV05932)
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OPINION
This wrongful discharge case asks a presumably simple question: when was Raul Rivas
terminated from his job (or at least when did he know he would be terminated)? Documents
from the Texas Workforce Commission (TWC) suggest he claimed to have been fired on
September 19, 2010, which would make his suit untimely. His affidavit submitted in response to
a motion for summary judgment claims that he was not terminated until September 24, 2010,
which if true, might make his suit timely. The trial court granted summary judgment,
presumably crediting the TWC file entries. Based on the state of the record, we reverse and
remand the case.
FACTUAL SUMMARY
On September 24, 2012, Rivas filed suit against Southwest Key Programs, Inc.
(Southwest Key) under Section 451.001 of the Texas Labor Code. TEX.LAB.CODE ANN. §
451.001 (West 2015). The suit maintained that Rivas was hired in January 2003 and at some
time thereafter was injured on the job. Rivas alleges that in connection with this injury, he filed
and pursued a work injury claim under the Texas Worker’s Compensation Act. He contends that
because he did so, he was discharged from his employment “and/or discriminated against . . . on
or about September 24, 2010.” He also alleges that he suffered from a “hostile work
environment” because of his on the job injury. His pleading is devoid of any specific factual
allegations explaining the basis for these legal theories, but the absence of specific factual
allegations was never raised below.
Southwest Key answered, and shortly thereafter, filed a motion for summary judgment
contending that the suit was barred by the applicable two-year statute of limitations. Southwest
Key proved up three documents that it had received from the TWC appearing to indicate that
Rivas filed a claim for unemployment benefits on September 19, 2010.
About eight months later, Southwest Key filed an Amended Motion for Summary
Judgment, also asserting limitations, but this time supported by the file from the TWC which was
proved up as an official record. That file contains a “Benefits-Initial Claims” report pertaining to
Rivas which shows a “claim date” of September 19, 2010. Another page contains references to
four “Fact Finding Statements.” The first is labeled as occurring at 9:05 a.m. on September 21,
2010 and attributes this statement to Rivas: “I was fired because I was told that I was only to
have 10 children under my supervision. I had 12 children that day and I was told I had not met
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ratio.” Another fact finding statement attributed to Rivas on October 6, 2010 notes that that there
was no time lapse between the “incident” and the “discharge.”
Rivas responded to the amended motion for summary judgment with his own affidavit
that claimed he was injured on the job on April 4, 2010, and was off work until August 24, 2010.
Upon his return, he claims he was subjected to a “negative attitude and hard time” because of the
injury and having filed the claim. He offered no specific details of what this referred to other
than an assistant director told others not to talk to him and he was denied treatment. He also
swore: “I was suspended on or about September 19, 2010, pending an investigation. I was not
fired.” He was called the next day and was told his suspension would be until September 24, and
“I asked Adriana if I was fired, and I was told no.” On September 24, he showed up for work
and was told he was fired. “The day of my termination is September 24, 2010 and I am sure
about it.” Also attached to the response was a payment stub from Liberty Mutual for what
appear to be payments for worker’s compensation benefits.
Southwest Key filed various objections to Rivas’ affidavit. We find nothing in the record
to show those objections were ever ruled upon. The trial court granted the amended motion for
summary judgment on December 18, 2013. Rivas brings three issues on appeal, all of which
contend the trial court erred in granting the summary judgment. In various ways, he contends
there that there is a genuine issue of material of fact as to the accrual date, and when he knew or
should have known of the termination.
STANDARD OF REVIEW
The standard of review for a traditional summary judgment under TEX.R.CIV.P. 166a(c)
is well established. Nixon v. Mr. Property Management Company, Inc., 690 S.W.2d 546, 548
(Tex. 1985). The moving party carries the burden of showing that there is no genuine issue of
material fact and it is entitled to judgment as a matter of law. Diversicare General Partner, Inc.
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v. Rubio, 185 S.W.3d 842, 846 (Tex. 2005). Evidence favorable to the non-movant will be taken
as true in deciding whether there is a disputed issue of material fact. Fort Worth Osteopathic
Hospital, Inc. v. Reese, 148 S.W.3d 94, 99 (Tex. 2004); Tranter v. Duemling, 129 S.W.3d 257,
260 (Tex.App.--El Paso 2004, no pet.). All reasonable inferences, including any doubts, must be
resolved in favor of the non-movant. Reese, 148 S.W.3d at 99. We review the grant or denial of
a traditional motion for summary judgment de novo. Valence Operating Company v. Dorsett,
164 S.W.3d 656, 661 (Tex. 2005).
Southwest Key moved for summary judgment on its affirmative defense of limitations
and therefore carried the burden of conclusively establishing that defense. KPMG Peat Marwick
v. Harrison County Housing Finance Corp., 988 S.W.2d 746, 748 (Tex. 1999); Munoz v. Gulf
Oil Co., 693 S.W.2d 372, 373 (Tex. 1984). It was required to conclusively prove when Rivas’
cause of action accrued. Id. An issue is conclusively proven if reasonable minds would
necessarily agree regarding the conclusion to be reached from the evidence. Triton Oil & Gas
Corp. v. Marine Contractors and Supply, Inc., 644 S.W.2d 443, 446 (Tex. 1982).
ACCRUAL DATE FOR SECTION 451.001 CLAIMS
Rivas asserted he was terminated and subjected to a hostile work environment because he
exercised his rights to pursue a work related injury claim, all in violation of Section 451.001. A
wrongful termination claim under Section 451.001 must be filed within two years after the cause
of action accrues. Johnson & Johnson Medical, Inc. v. Sanchez, 924 S.W.2d 925, 927 (Tex.
1995)(interpreting predecessor statute). Such a claim accrues when the worker receives
unequivocal notice of the termination or when a reasonable person should have known of the
termination. Id. at 928.
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A short visit to the facts in Sanchez is instructive. Ms. Sanchez was injured in April 1987
and by November 1987, she was placed on indefinite medical leave with recall rights. Id. She
contended that over the years, she called and was told several times that no jobs were available.
Id. Finally in April 1991, she filed a suit asserting a claim for common law fraud and
discrimination under the predecessor statute to Section 451.001. Id.1 The employer obtained a
summary judgment on the predecessor Section 451.001 claim based on limitations, contending
that the indefinite medical leave in 1987 was the same as a final termination. Id. at 928. The
Texas Supreme Court, however, found that the meaning of an indefinite medical leave under the
company’s policies and collective bargaining agreement was ambiguous. Id. This ambiguity
created a fact issue as to when the employee received unequivocal notice of termination, or a
reasonable person would have believed themselves to have been terminated. Id. at 930.
Sanchez preserved an important facet of existing law by reiterating the holding in
Specialty Retailers, Inc. v. DeMoranville, 933 S.W.2d 490 (Tex. 1996). DeMoranville holds that
an employment discrimination claim accrues when the discrimination occurs, and not when the
effects of that discrimination are felt. Id. at 493. In DeMoranville, the plaintiff took a medical
leave of absence because of stress allegedly caused by a hostile work environment. Id. at 492.
She was told that she would be fired if the leave lasted longer than a year and approximately one
year later, the plaintiff was formally terminated. Id. Because the discriminatory employment
decision occurred with the leave of absence itself, her claim accrued then, and not a year later
when the formal termination ensued. Id. at 493. DeMoranville looked to Delaware State
College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980) which holds that “the
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Act of May 7, 1971, 62nd Leg., R.S., ch. 115, §§ 1-3, 1971 TEX.GEN.LAWS 884-85 (repealed 1993)(current
version at T EX.LAB.C ODE ANN. §§ 451.001-.003).
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proper focus is upon the time of the discriminatory acts, not upon the time at which the
consequences of the acts become most painful.” 449 U.S. at 258, 101 S.Ct. at 504.
But these cases are very fact specific. In Sanchez, the plaintiff avoided summary
judgment because she was not alleging that the earlier indefinite medical layoff in 1987 was the
basis of her claim. The discriminatory event was her termination, the actual date of which was in
dispute. Conversely, the plaintiff in DeMoranville was suing over the decision made a year
before the termination, and which made the actual termination a mere formality. And in
Thurman v. Sears, Roebuck & Co., 952 F.2d 128 (5th Cir. 1992) the claim was found time barred
based on the date that a leave of absence began when other facts, such as the plaintiff filing for
unemployment compensation, and the testimony of two employer witnesses, indicated that the
plaintiff was terminated as of a particular date. Id. at 136.
Rivas also asserts a claim for a hostile work environment, a theory endorsed by this court
in Garcia v. Levi Strauss & Co., 85 S.W.3d 362, 369 (Tex.App.--El Paso 2002, no
pet.)(recognizing hostile workplace theory under Section 451.001). Under Title VII, a hostile-
work-environment claim is generally composed of a series of separate acts that collectively
constitute one “unlawful employment practice.” National R.R. Passenger Corp. v. Morgan, 536
U.S. 101, 115, 122 S.Ct. 2061, 2073, 153 L.Ed2d 106 (2002). For limitation purposes, it does
not matter that some of the specific acts creating the hostile work environment fall outside the
statutory time period, “[p]rovided that an act contributing to the claim occurs within the filing
period . . . . Morgan, 536 U.S. at 117 (while plaintiff cannot recovery for discrete acts of
discrimination or retaliation that occur outside the statutory time period, “behavior alleged
outside the statutory time period, is permissible for the purposes of assessing liability, so long as
an act contributing to that hostile environment takes place within the statutory time period”); City
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of El Paso v. Marquez, 380 S.W.3d 335, 343-44 (Tex.App.--El Paso 2012, no pet.)(recognizing
“continuing violation doctrine” for hostile work environment in National Origin claim); Bartosh
v. Sam Houston State University, 259 S.W.3d 317, 324 (Tex.App.--Texarkana 2008, pet.
denied)(recognizing Morgan principle but finding neither of the events occurring within the
limitation period could be considered harassment); Soto v. El Paso Natural Gas Co., 942 S.W.2d
671, 677 (Tex.App.--El Paso 1997, writ denied)(acts occurring before 180 day or two year
limitations period may be considered as evidence in sexual harassment claim, but not as basis for
legal redress). The termination itself, however, would not qualify as a predicate for the hostile
work environment claim. Bartosh, 259 S.W.3d at 324.
ANALYSIS
The fact specific nature of the cases in this arena is the nub of the problem here. There is
almost no factual development of the claims which were pled below. Rivas alleges only that he
was discharged “and/or discriminated against . . . on or about September 24, 2010” in violation
of the Texas Labor Code. He appends an affidavit to his summary judgment response
contending that he was not terminated until September 24, 2010 and had in fact been told the
opposite prior to that date. It is not even clear to us if the suspension on September 17 is a part
of his claim in this lawsuit. While Southwest Key introduced contrary evidence about when
Rivas was terminated, or at least when he knew he would be terminated, the summary judgment
standard mandates that we must take the non-movant’s evidence as true in deciding whether
there is a disputed issue of material fact. Reese, 148 S.W.3d at 99; Duemling, 129 S.W.3d at
260.
We believe this case is controlled by Randall v. Dallas Power & Light Co., 752 S.W.2d 4
(Tex. 1988) that held a trial court could not pick and choose between seemingly conflicting
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assertions in the summary judgment record. In that case, the plaintiff swore in an affidavit that
the defendant made a representation about a future event; a later deposition elicited testimony
from the plaintiff that he could not recall any promises about future events. Id. at 5. The trial
court granted summary judgment which was affirmed by the court of appeals, based on the
deposition answer. Id. The Texas Supreme Court reversed, finding that there was a fact issue.
Id; see also Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557, 562 (1962)(“If conflicting
inferences may be drawn from the deposition and from the affidavit of the same party, a fact
issue is presented. It is not the purpose of the summary judgment rule to provide either a trial by
deposition or a trial by affidavit, but rather to provide a method of summarily terminating a case
when it clearly appears that only a question of law is involved and that there is no genuine issue
of fact.”); Bastida v. Aznaran, 444 S.W.3d 98, 108 (Tex.App.--Dallas 2014, no pet.)(conflict
between affidavit and response to request for admission created fact issues); Hunicke v.
Seafarers International Union, No. 14-12-00199-CV, 2013 WL 2444634, at *8-9 (Tex.App.--
Houston [14th Dist.] June 4, 2013, pet. denied)(mem. op.)(affidavit created fact issue by
contradicted prior statement in response to earlier motion for summary judgment on statute of
limitations as to when hostile work environment actions took place); Allen v. Roddis Lumber &
Veneer Co., 796 S.W.2d 758, 760 (Tex.App.--Corpus Christi 1990, writ denied)(contradiction
between deposition and affidavit about when plaintiff knew of formaldehyde risk created fact
issue in summary judgment context).2
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Some cases coming after Randall have resolved conflicts between affidavits and prior sworn testimony under the
sham affidavit rule. E.g. Cantu v. Peacher, 53 S.W.3d 5, 10 (Tex.App.--San Antonio 2001, pet. denied); Farroux v.
Denny's Restaurants, Inc., 962 S.W.2d 108, 111 (Tex.App.--Houston [1st Dist.] 1997, no pet.). This court has also
applied the sham affidavit doctrine. See Fred Loya Ins. Agency, Inc. v. Cohen, 446 S.W.3d 913, 927 (Tex.App.--
El Paso 2014, pet. denied)(affirming trial court’s finding that particular claim in affidavit contradicted earlier
deposition testimony on whether term of agreement was definite or indefinite). The doctrine has been applied
outside of the pure affidavit verse deposition context. Herrera v. CTS Corp., 183 F.Supp.2d 921, 929 (S.D.Tex.
2002)(plaintiff's affidavit which conflicted with sworn statements in application for Social Security Disability
Insurance). It has been applied in the specific context of an affidavit attempting to create a fact issue for limitations
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Thus we are left with an affidavit that appears to conflict with an entry in an official
record of the TWC. We are perhaps more inclined to apply Randall in this context because the
TWC record does not contain any sworn statement from Rivas, nor is there a sponsoring witness
to explain the meaning of all the entries on the record.
Southwest Key also argues that the summary judgment can be sustained based on the
holding of Specialty Retailers, Inc. v. DeMoranville that the final date for termination does not
always control the accrual date. It argues that the suspension on September 17, in conjunction
with the admissions by Rivas in the TWC file, are sufficient to defeat any fact issue. Our
concern with this reasoning returns back to the sparse record before us, and the affidavit filed by
Rivas. In the affidavit, he states, “I was suspended on or about September 19, 2010, pending an
investigation. I was not fired. I was called on September 20, 2010 by Adrian Saenz. I was told
that my suspension that my suspension [sic] would be until the 24th of September. I asked
Adriana if I was fired, and I was told no.” It is not clear to us how the suspension itself relates, if
at all, to the claimed discrimination. There is at least a fact issue on this record as to whether the
suspension is tied to the termination decision or not.
The amended motion for summary judgment did not specifically address the hostile work
environment claim. See Chessher v. Southwestern Bell Telephone Co., 658 S.W.2d 563 (Tex.
1983)(summary judgment motion must address every claim raised to obtain dismissal of all
claims). But neither did the Rivas’ response take issue with that omission, and neither party on
appeal addresses in any significant way the hostile work environment claim. Perhaps this is
purposes in a wrongful discharge suit. Thurman v. Sears, Roebuck & Co., 952 F.2d 128, 136 n.23 (5th Cir.
1992)(applying sham affidavit rule in dispute over when plaintiff was told he was terminated). But we cannot
consider its application here because the sham affidavit rule is an attack on the form of the affidavit, and not its
substance, such that it must be first addressed by the trial court. Hogan v. J. Higgins Trucking, Inc., 197 S.W.3d
879, 883 (Tex.App.--Dallas 2006, no pet.); Wolfe v. Devon Energy Production Co., LP, 382 S.W.3d 434, 454-53
(Tex.App.--Waco 2012, pet. denied); David F. Johnson , Joseph P. Regan, The Competency of the Sham Affidavit as
Summary Judgment Proof in Texas, 40 St. Mary’s L.J. 205, 259 (2008).
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understandable given that the claim comprises a single sentence in the Original Petition, and as
noted above, Rivas would be required to prove a distinct action other than the termination, that
occurred on September 24, 2010, which was part of the hostile work environment claim.
Morgan, 536 U.S. at 117, 104, 122 S.Ct. at 2068. Inasmuch as we reverse the summary
judgment on the termination claim, we also reverse as to the hostile work environment claim
because Southwest Key failed to prove that there was no genuine issue of material fact that no
event took place on September 24, 2010 germane to the hostile work environment claim.
Based on the record before us, we sustain Issues One, Two, and Three to the extent that
there is a genuine issue of material fact on the date of accrual for the termination and hostile
work environment claim. We reverse and remand for further proceedings.
November 3, 2015
ANN CRAWFORD McCLURE, Chief Justice
Before McClure, C.J., Rodriguez, J., and Chew, C.J. (Senior)
Chew, C.J. (Senior), sitting by assignment
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