Burfield v. Brown, Moore & Flint, Inc.

United States Court of Appeals,

Fifth Circuit.

No. 94-10795

Summary Calendar.

Don W. BURFIELD, Plaintiff-Appellant,

v.

BROWN, MOORE & FLINT, INC., Defendant-Appellee.

May 10, 1995.

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

Before KING, JOLLY and DeMOSS, Circuit Judges.

PER CURIAM:

Don W. Burfield filed a civil action against Brown, Moore &

Flint, Inc. ("BM & F"), on August 18, 1993, alleging that he was

the victim of employment discrimination in violation of the Age

Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634,

the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12112, and

the Texas Labor Code § 451.001.1 On July 26, 1994, the district

court granted summary judgment in favor of BM & F on the following

grounds: (1) the applicable statute of limitations had run before

Burfield filed his ADEA complaint with the EEOC,2 (2) Burfield's

ADA claim was barred as a matter of law because it arose prior to

1
Texas Revised Civil Statutes article 8307c was repealed and
recodified in §§ 451.001-.003 of the Texas Labor Code, effective
September 1, 1993. This recodification did not change the
substantive law.
2
Burfield does not appeal the granting of summary judgment
on this matter.

1
the Act's effective date, and (3) Burfield failed to establish the

requisite causal connection between his workers' compensation claim

and his discharge from employment. We affirm the district court's

grant of summary judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

BM & F is a food brokerage company that markets dry and frozen

foods to retail operations such as grocery and convenience stores.

Burfield was hired by BM & F on February 22, 1988 as a retail sales

representative, and he held this position throughout his employment

with the company. Burfield was born on August 29, 1945, and he was

over forty years of age at the time his employment with BM & F

began. Burfield has a Bachelor of Arts degree in political science

and public administration, along with a minor in business

administration.

According to job descriptions prepared by BM & F, most

essential functions performed by a retail sales representative

consist of "getting product(s) aligned on grocery store shel(ves)

according to stocking plan or manufacturer's requirements." This

job function is referred to as "merchandising", and it involves

lifting products up on to grocery store shelves, including overhead

lifting. Another essential function of a retail sales

representative is the selling of extra merchandise directly to the

retail store, a function referred to as "surveying."

On March 20, 1991, while working as a retail sales

representative at a Skaggs grocery store in Dallas, Texas, Burfield

allegedly sustained a job-related injury when he was hit in the

2
head and neck area by a box containing multi-roll packages of

toilet paper that was thrown by an employee of Skaggs. Burfield

completed an accident report for Skaggs and allegedly advised his

supervisor at BM & F, Ronald A. Campbell, the Zone Manager, of the

incident. Burfield reports that he asked Campbell if he should

file a workers' compensation claim, to which Campbell allegedly

replied, "Hell, no," and directed Burfield to file the claim with

Skaggs.

Burfield subsequently saw Dr. Scott L. Blumenthal, M.D. for

this injury. He was referred to Dr. Blumenthal by his attorney,

John Wall, Jr. Burfield returned to full-duty work the day

following the incident, but he continued to be treated by Dr.

Blumenthal and his associate, Dr. Kevin Gill, M.D., with

medications, physical therapy sessions and personal fitness

training at a health club.

Burfield received no response following his submission of an

accident report with Skaggs, and he subsequently filed a workers'

compensation claim with BM & F in April of 1991, three to four

weeks after the injury occurred. Burfield claims that upon

approaching Leonard Bara, the controller at BM & F, about filing

the workers' compensation claim, Bara appeared angry and handed

Burfield the claim form in a brusk manner. According to Burfield,

Bara said that he hoped they did not get in trouble for filing this

claim, and a few weeks later, Bara stated to Burfield, "Thanks to

you our rates are about to double."

BM & F then submitted an "Employer's First Report of Injury or

3
Illness" to the Texas Worker's Compensation Commission on April 24,

1991. Thereafter, BM & F's workers' compensation insurance

carrier, Northbrook Insurance Company, paid all expenses incurred

by Burfield for his medical treatment.3

Meanwhile, Burfield continued to work for BM & F while

undergoing physical therapy and training sessions prescribed by his

physician. In May or June of 1992, Burfield was transferred to

work under Jim Tweet in the frozen and perishable food division of

BM & F, still in his capacity as a retail sales representative.

Burfield claims that he advised Tweet that he would be attending

physical therapy and training sessions. Burfield continued to

perform his full duties as a retail sales representative under

Tweet without incident until the summer of 1992.

In the spring of 1992, Skaggs was purchased by Albertsons. As

a result, the Skaggs account at BM & F was eliminated and the

retail sales representatives who had been servicing Skaggs

(Burfield and Debbie Kennemer) were reassigned to the Albertsons

account. Since Albertsons performed all purchasing at the

corporate level and did not allow its stores to buy products

directly from retail sales representatives, there was no survey

work to be done at Albertsons and merchandising then accounted for

an even larger portion of Burfield's duties.

3
Burfield later settled with Northbrook and received a lump
sum of $6,000.00, medical benefits for life, and a promise of
impairment income equivalent to 66% of his salary if he should
become unable in the future to perform his job at BM & F due to
his injury. In addition to being compensated by Northbrook,
Burfield initiated litigation against Skaggs.

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 Effective June 1, 1992, BM & F restructured its operations by

combining the frozen food and dry grocery divisions and, as a

result, Burfield was again under the supervision of Ron Campbell.

On this same day, Campbell instructed Burfield, along with other

employees, to construct a large paper display at Albertsons.

Burfield informed Campbell that he would not be able to perform

this task because of his medical restrictions. Campbell was at

this time reportedly unaware of Burfield's restrictions. When he

asked Burfield for more information, Burfield replied "We'll talk

about this at some other time." Burfield does not believe that he

and Campbell ever "finished the conversation." Burfield claims

that Campbell continued to ask him to perform tasks which violated

his restrictions and caused him pain.

Burfield continued to work in his capacity as a retail sales

representative throughout the month of June 1992 without incident.

Burfield alleges, however, that on June 29, 1992, he experienced

neck pain while shelving baby food. He left a voice mail message

with Campbell informing him that he could no longer perform the

essential functions of his position as a retail sales

representative without injuring himself because lifting was "part

of the job out there." Campbell responded by asking Burfield to

bring documentation of his restrictions to the weekly sales meeting

so that he and Burfield could discuss the matter. Burfield met

with Campbell on July 2, 1992, and at that time Burfield provided

Campbell with copies of his medical records. Campbell responded

that he would need to discuss the matter with his supervisor, David

5
Curtis. After this meeting, Burfield worked the remainder of the

week before going on vacation until Monday, July 13, 1992.

On July 14, 1992, Burfield met with Campbell and Curtis. At

this meeting, Burfield again stated that he could no longer perform

the merchandising functions required in his position as a retail

sales representative. He requested that he instead be allowed to

do survey work for Tom Thumb. Campbell and Curtis advised Burfield

that BM & F could not create such a position. They consequently

informed Burfield that BM & F had no retail sales representative

positions that did not involve merchandising, but that Burfield was

welcome to interview for two administrative positions which were

then available. Burfield has indicated that at this time (the July

14, 1992 meeting) he believed he was being discharged from

employment with BM & F.4

On August 17, 1992, Hugh Wilson, Secretary-Treasurer at BM &

F, sent Burfield a letter explaining that since Burfield was unable

to perform his job as a retail sales representative and because

there were no other jobs available that accommodated Burfield's

medical restrictions, he was being placed on an unpaid leave of

absence with continuation of his medical insurance and other

employee benefits until he was able to return to work or until

December 31, 1992, whichever was sooner. Burfield was further

4
In his affidavit, Burfield made the following statements:
"I was then asked to fill out some paperwork which informed me of
why I was being let go, i.e. that there no light duty.... I was
never returned to work at BM & F, and was never offered or
contacted about a job, either with or without reasonable
accommodation, at BM & F after July 14, 1992."

6
advised that, although no positions accommodating his restrictions

were currently available, he could continue to contact BM & F to

inquire whether any such positions had become open. On November

16, 1992, Burfield filed a charge of discrimination with the Equal

Employment Opportunity Commission, asserting that BM & F had

discriminated against him in violation of the ADA because he was

denied an accommodation for his disability and was discharged for

"not being able to perform my duties without restrictions."

Burfield further asserted that BM & F had discriminated against him

on the basis of his age in violation of the ADEA by not promoting

him to a marketing position. This claim was based upon specific

promotions and hirings which occurred at BM & F between August of

1988 and April of 1991.

On August 30, 1992, Burfield filed for, and began receiving,

unemployment compensation benefits from the Texas Employment

Commission (TEC). Burfield informed the TEC that he had been

terminated on July 15, 1992 because he sustained a job-related

injury to his neck. In determining Burfield's entitlement to

benefits, the TEC ruled that Burfield was able to work because his

physical condition did not prevent him from performing other work

for which he was qualified and which he could reasonably expect to

obtain. Since March of 1993, Burfield has worked in Dallas as a

paralegal.5

Burfield instituted this civil action on August 18, 1993.

5
Burfield began taking night classes in paralegal studies in
September of 1989. He was awarded his associate's degree in
paralegal studies in May of 1992.

7
Summary judgment was granted in favor of BM & F by the district

court on July 26, 1994. Burfield subsequently brought this appeal,

arguing that he was not effectively terminated by BM & F until

after the effective date of the ADA, and that a reasonable

factfinder could determine that he was a victim of discrimination

in retaliation for filing workers' compensation claims in violation

of Tex.Labor Code § 451.001.

II. STANDARD OF REVIEW

In employment discrimination cases, we review summary

judgments de novo, applying the same standard as the district

court. Waltman v. International Paper Co., 875 F.2d 468, 474 (5th

Cir.1989). First, we consult the applicable law to ascertain the

material factual issues. King v. Chide, 974 F.2d 653, 655-56 (5th

Cir.1992). We then review the evidence bearing on those issues,

viewing the facts and inferences to be drawn therefrom in the light

most favorable to the non-moving party. Lemelle v. Universal Mfg.

Corp., 18 F.3d 1268, 1272 (5th Cir.1994); FDIC v. Dawson, 4 F.3d

1303, 1306 (5th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct.

2673, 129 L.Ed.2d 809 (1994). Summary judgment is proper "if the

pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any, show that there is

no genuine issue as to any material fact and that the moving party

is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).

Under Rule 56(c), the party moving for summary judgment bears

the initial burden of informing the district court of the basis for

its motion and of identifying the portions of the record that it

8
believes demonstrate the absence of a genuine issue of material

fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548,

2552, 91 L.Ed.2d 265 (1986); Norman v. Apache Corp., 19 F.3d 1017,

1023 (5th Cir.1994). A dispute about a material fact is "genuine"

if the evidence is such that a reasonable jury could return a

verdict for the non-moving party. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). If

the moving party meets its burden, the burden shifts to the

non-moving party to establish the existence of a genuine issue for

trial. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574,

585-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986); Norman, 19

F.3d at 1023. The burden on the non-moving party is to do more

than simply show that there is some metaphysical doubt as to the

material facts. Matsushita, 475 U.S. at 586, 106 S.Ct. at 1355.

III. DISCUSSION

A. Burfield's ADA claim

The ADA became effective for most employers and employees on

July 26, 1992. See Pub.L. No. 101-336, Title I, § 108, 104 Stat.

337 (1990). The ADA is not retroactive and it does not apply to

actions allegedly taken prior to the effective date of the Act.

O'Bryant v. City of Midland, 9 F.3d 421 (5th Cir.1993). BM & F

asserts that Burfield was terminated during the meeting with

Campbell and Curtis on July 14, 1992 (twelve days before the

effective date of the ADA), and that consequently his ADA claim is

barred. Burfield argues that a question of material fact exists

regarding the date of his termination because he received a letter

9
from BM & F on August 17, 1992 informing him that he had been

placed on leave of absence effective until December 31, 1992.

Thus, a determination of when Burfield was terminated at BM & F

occurred is crucial in determining whether an ADA cause of action

exists.

The district court, in attempting to resolve this issue,

applied the test which we used in Thurman v. Sears, Roebuck & Co.,

952 F.2d 128 (5th Cir.1992). In Thurman, we held that the

limitations period for a suit for wrongful termination under

article 8307c of the Texas Revised Civil Statutes, the predecessor

to Texas Labor Code § 451.001, see supra note 1, will commence when

the employee receives unequivocal notice of his termination or when

a reasonable person would know of the termination. Id. at 134.6

Burfield attempts to distinguish his case from Thurman

primarily through his contention that the August 17, 1992 letter he

received from BM & F precludes a finding of summary judgment on the

issue of whether he had received unequivocal notice of termination

6
This test was originally promulgated in Bonham v. Dresser
Industries, 569 F.2d 187 (3d Cir.1977), cert. denied, 439 U.S.
821, 99 S.Ct. 87, 58 L.Ed.2d 113 (1978). In addressing an appeal
in an ADEA case, the court held that "where unequivocal notice of
termination and the employee's last day of work coincide, then
the alleged unlawful act will be deemed to have occurred on that
date." This test was later used by the Ninth Circuit in Naton v.
Bank of Cal., 649 F.2d 691 (9th Cir.1981). Looking to Bonham,
the court in Naton enunciated a rule which isolated the accrual
date of a cause of action under the ADEA. The employee in that
case was notified of his termination and stopped working for his
employer on January 17. The employee was officially terminated
for administrative purposes on May 2. In determining the accrual
date of his cause of action, the court held that "when
unequivocal notice of termination and the last day of work
coincide, the alleged unlawful practice occurs on that date."
See Thurman v. Sears, Roebuck & Co., 952 F.2d at 133.

10
on July 14, 1992. He also asserts that BM & F had claimed at

various other times throughout the course of the proceedings that

he was not terminated until December 31, 1992. Burfield admits,

however, that he believed that he was terminated on July 14, 1992,

but he argues that his "feeling [did] not make it so." This

argument fails, however, because a determination of when the cause

of action arises in an ADA case, as in other employment

discrimination contexts, must focus on when the employee receives

unequivocal notice of the facts giving rise to his claim or a

reasonable person would know of the facts giving rise to a claim.

See Thurman, 952 F.2d at 134; Naton, 649 F.2d at 695; Bonham, 569

F.2d at 192. Where, as here, the employee was informed that he was

being terminated—the act alleged to have violated the ADA—on his

last day of actual work and where he understood that he was being

terminated, the cause of action accrues on that day.

We agree with the district court that the August 17, 1992

letter informing Burfield that he had been placed on leave of

absence which would be in effect until December 31, 1992 was at

most a written confirmation of the termination which had occurred

on July 14, 1992 and an explanation of how BM & F would assist

Burfield by providing certain benefits through his placement on

leave of absence for the remainder of the year or until he

commenced employment again with BM & F or some other company. This

court disfavors any rule that would penalize an employer for giving

an employee severance pay or other extended benefits after the

employment relationship has terminated. Thurman, 952 F.2d at 137;

11
Bonham, 569 F.2d at 191-92.

In summary, Burfield has not presented sufficient evidence to

raise a fact question about the date when the alleged

discrimination in violation of the ADA occurred.

B. Burfield's retaliatory discharge claim

Burfield claims that he was terminated in violation of §

451.001 of the Texas Labor Code in retaliation for filing a

workers' compensation claim. Section 451.001 is a statutory

exception to the Texas common law doctrine of employment-at-will.

The statute provides that "[n]o person may discharge or in any

other manner discriminate against an employee because the employee

filed a claim, hired a lawyer to represent [him] 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."

Swearingen v. Owens-Corning Fiberglas Corp., 968 F.2d 559, 561 (5th

Cir.1992). Unless one of the four specific circumstances in the

article motivated the employer in discharging or discriminating

against the employee, that employee cannot prevail on a claim based

on this article. Id. at 563.

An employee claiming discharge in violation of § 451.001 has

the burden of at least demonstrating a causal link between the

discharge and the filing of the claim for workers' compensation

benefits. While the employee can meet this burden without showing

that he was fired solely because of the filing of the workers'

compensation claim, he must show that the filing of the claim was

12
at least a determining factor in the discharge. Pope v. MCI

Telecommunications Corp., 937 F.2d 258, 265 (5th Cir.1991); see

also Azar Nut Co. v. Caille, 720 S.W.2d 685, 687 (Tex.App.—El Paso

1986), aff'd, 734 S.W.2d 667 (Texas 1987) (noting that an employee

did not have to prove that her discharge was solely because of the

filing of her workers' compensation claim). The employee may show

causation by direct evidence or by circumstantial evidence, and by

the reasonable inferences which may be drawn from such evidence.

Investment Properties Management v. Montes, 821 S.W.2d 691, 694

(Tex.App.—El Paso 1991, no writ). The employer must rebut by

showing a legitimate reason for the discharge. Jones v. Roadway

Exp., Inc., 931 F.2d 1086, 1090 (5th Cir.1991).

Burfield's argument relies on statements made by Ron Campbell

in March of 1991 and on statements made by Leonard Bara in April of

1991 regarding his filing of a workers' compensation claim.7

Burfield argues that these statements indicate BM & F's "clear

anger" with his claim. Assuming that this "clear anger" did indeed

exist, these statements were made approximately fifteen to sixteen

months before Burfield was terminated by BM & F. While the length

of time between these statements and the termination is not the

determining factor, Texas courts have frequently looked at the

temporal proximity between the protected activity and the adverse

7
Burfield refers to Campbell's alleged response of "Hell,
no" when asked if Burfield should file a claim for workers'
compensation on March 20, 1991 (the date of his injury), and to
Leonard Bara's alleged response to Burfield's request to fill out
the claim approximately 3-4 weeks later. Burfield also refers to
Bara's alleged statement to him a few weeks later that "Thanks to
you our rates are about to double."

13
employment action for circumstantial evidence of retaliatory

motive. See, e.g. Worsham Steel Co. v. Arias, 831 S.W.2d 81, 82

(Tex.App.—El Paso 1992, no writ) (finding a retaliatory motive

where an employer terminated an employee a few days after injury

specifically to deny employee the opportunity to file a claim);

Chemical Express Carriers, Inc. v. Pina, 819 S.W.2d 585, 590

(Tex.App.—El Paso 1991, writ denied) (finding a retaliatory motive

where discharge occurred only one month after a compensation claim

was filed). In this case, the long time period between the

workers' compensation claim and the discharge militates against a

finding of retaliation.

BM & F asserts that Burfield was terminated because he was no

longer able to perform essential functions of his job as a retail

sales representative, and because there were no "light duty"

positions available at that time. In Texas, an employer is

permitted to terminate an employee who sustains a job-related

injury if it ultimately appears that, due to the nature of the

injury, the employee can no longer perform the essential functions

of his position. Schrader v. Artco Bell Corp., 579 S.W.2d 534, 540

(Tex.Civ.App.—Tyler 1979, writ ref'd n.r.e.) (employer not

obligated to reinstate a worker who could not lift over 50 pounds

after an injury and still had the same pain which caused him to

file the workers' compensation claim). Burfield does not deny that

he was unable to perform certain essential functions of the

position as a retail sales representative, and accordingly under

Texas law BM & F was allowed to terminate him.

14
 Burfield has not presented evidence which shows a causal

connection between the termination and his filing for workers'

compensation benefits. The district court's grant of summary

judgment was correct on this issue.

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the district court's

granting of summary judgment for BM & F.

15