dissenting.
I respectfully dissent from the Court’s decision not to reconsider the panel’s opinion en banc. See O’Connor v. First Court of Appeals, 837 S.W.2d 94, 97 (Tex.1992). The panel opinion is contrary to well-established Texas law, and the summary judgment should be reversed.
By allowing the panel opinion to stand, the Court today has created the first ever affirmative defense to actions brought under article 8307c. Tex.Rev.Civ.StatAnn. art. 8307c (Vernon Supp.1993). It is a defense that appears nowhere in the statute or the common law of Texas, but has been created whole cloth from federal decisions interpreting an unrelated federal statute and which are of questionable jurisprudential pedigree.
THE AFTER-ACQUIRED EVIDENCE DEFENSE IS INCONSISTENT WITH THE ESTABLISHED LAW OF RETALIATORY DISCHARGE
The purpose of article 8307c is to protect persons who are entitled to benefits under the Workers’ Compensation Act and to prevent them from being discharged by reason of taking steps to collect such benefits. Carnation Co. v. Borner, 610 S.W.2d 450, 453 (Tex.1980); Mid-South Bottling Co. v. Cigainero, 799 S.W.2d 385, 389 (Tex.App.—Texarkana 1990, writ denied). To further this purpose, both Texas and federal courts have held that an injured worker need not prove that he was discharged solely because of his workers’ compensation claim; even if other reasons for discharge exist, the worker may recover if retaliation is also a reason. Jones v. Roadway Express Inc., 931 F.2d 1086, 1090 (5th Cir.1991); 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); Hunt v. VanDerHorst Corp., 711 S.W.2d 77, 79 (Tex.App.—Dallas 1986, no writ).
Thus, under the established law an employer could actually discharge an employee for lying on his employment application, yet still be liable under article 8307c if retaliation for a workers’ compensation claim was an additional reason for the discharge. In contrast, the Court today creates an affirmative defense under which an employer could admit that the discharge was solely in retaliation for a workers’ compensation claim, yet avoid liability merely by showing that it could have used the falsified application as an additional reason if it had known about it. This is in irreconcilable conflict with our Court’s own prior holding in Hunt, and with the holding affirmed by the Texas Supreme Court in Azar Nut. If actually citing a falsified application as a cause for dismissal is not a defense, then neither is the subsequent discovery of a falsified application that “could have been” cited.
THE DEFENSE IS BASED ON A FALSE PREMISE
The after-acquired evidence defense is also inconsistent with well-established Texas law in several other respects. The defense is premised on the view that the employee could not have been injured by the discharge, even if illegal, if the employee would not have been hired in the first instance because of a falsified application. See, e.g., Redd v. Fisher Controls, 814 F.Supp. 547, 551 (W.D.Tex.1992). However, this premise is clearly improper because the presence or absence of injury must be determined by evidence, not assumed as a matter of law. If we cannot assume the absence of injury, then the premise underlying the after-acquired evidence defense must instead assume that the dis*372charge is not the cause of the employee’s injury as a matter of law. Such an assumption, however, amounts to nothing more than an argument that the falsified application was the sole cause of the employee’s injury. This reasoning ignores the well-established rule that an injury may have more than one proximate cause. Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex.1992); see also Hunt, 711 S.W.2d at 79 (there may be more than one cause for discharge). It also ignores the reality that the discharge may have been accomplished with extreme malice, entitling the terminated employee to recover damages for mental anguish and punitive damages. See Paragon Hotel Corp. v. Ramirez, 783 S.W.2d 654, 660 (Tex.App.—El Paso 1989, writ denied); Azar Nut, 734 S.W.2d at 668— 69.
Under such circumstances, Texas law would traditionally treat the employer’s conduct as an intervening and superseding cause of the employee’s mental anguish. Certainly, an employee who obtained employment through false pretenses could not foresee that he would be maliciously fired in retaliation for filing a workers’ compensation claim. See, e.g., Humble Oil & Ref. Co. v. Whitten, 427 S.W.2d 313, 315 (Tex.1968) (in deciding whether intervening force is a superseding cause, consider whether intervening force is a normal result of actor’s negligence and whether intervening force brought about a different kind of harm that would have otherwise resulted from the actor’s negligence); see also Aerospatiale Helicopter Corp. v. Universal Health Servs., 778 S.W.2d 492, 497 (Tex.App.—Dallas 1989, writ denied), cert. denied, 498 U.S. 854, 111 S.Ct. 149, 112 L.Ed.2d 115 (1990) (a prior cause is not a basis for an action where it merely gives rise to the condition or occasion which makes the injury possible).
The injury and causation arguments implicit in the after-acquired evidence defense are further undermined by the Court’s recognition that a falsified application cannot preclude recovery for injuries under the Workers’ Compensation Act. Huffman v. Southern Underwriters, 133 Tex. 354, 361, 128 S.W.2d 4, 7 (1939). If the employee would not have been hired in the first instance because of a falsified application, then it stands to reason that the falsification is as much a cause of the injury that is the basis of the compensation claim as it is of the subsequent discharge. The after-acquired evidence defense cannot be applied to claims under article 8307c without ultimately affecting the employee’s right to recover for injuries under the Workers’ Compensation Act, because the primary purpose of article 8307c is to protect that right of recovery. Carnation Co., 610 S.W.2d at 453. An employer who discovers a falsified application may effectively prevent an employee from filing a workers’ compensation claim by freely threatening a retaliatory discharge.
THE DEFENSE CANNOT BE PROVEN AS A MATTER OF LAW
The defense adopted today by the Court also raises the question of whether an employer may prove, as a matter of law, what it “would have done had it known” about the falsified application. In my view, an employer could not establish this element conclusively for purposes of summary judgment because it is inherently speculative. Even if an employer could show that it had refused to hire 100 consecutive applicants under a written policy of not hiring anyone who falsified an application, it would still require an inference to conclude that the employer would have treated the next applicant in the same fashion. Under Texas law, inferences may not be drawn in favor of the summary judgment movant. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). In contrast, the summary judgment burden imposed in the federal courts would require the employee, as plaintiff, to affirmatively raise a fact issue on what the employer would have done. See Celotex Corp. v. Catrett, 477 U.S. 317, 321-25, 106 S.Ct. 2548, 2551-54, 91 L.Ed.2d 265 (1986). A defense that would entitle an employer to summary judgment in federal court may not meet the standard for summary judgment under Texas law.
The inquiry into what an employer would have done if it had known about a falsified application may be further complicated by other factors, such as whether the falsifica*373tion was intentional or by mistake, whether the falsity was material, and whether the employer needed to hire someone immediately. In this case, the affidavit of Roy Hernandez clearly creates a fact issue as to whether Johnson Controls could have fired Jordan for his falsified application because the requirements of a collective bargaining agreement might have prevented the termination. At the same time, a jury should be entitled to disbelieve Don Wilson’s subjective opinion as to what he “would have done” about hiring or firing Jordan. Whether Wilson would have been motivated to fire (or not to hire) Jordan under a hypothetical scenario is clearly not a question that should be resolved by summary judgment. See Garcia v. John Hancock Variable Life Ins., 859 S.W.2d 427, 431 (Tex.App.—San Antonio 1998, no writ) (unlikely that issue of subjective intent could be established as a matter of law).
IS AFTER-ACQUIRED EVIDENCE AN EQUITABLE DEFENSE?
The cases that have recognized the after-acquired evidence defense all involve a federal employment discrimination statute that expressly invokes the trial court’s power to grant equitable relief, 42 U.S.C. § 2000e-5(g); see, e.g., Summers v. State Farm Mut. Auto Ins. Co., 864 F.2d 700 (10th Cir.1988). Seen in this context, the after-acquired evidence defense resembles an application of the equitable doctrine of unclean hands, which creates an automatic bar to equitable claims. Wynne v. Fischer, 809 S.W.2d 264, 267 (Tex.App.—Dallas 1991, writ denied). The defense could perhaps be justified on this basis more than it could on the demonstrably false ground that the employee “could have no damages.” However, such reasoning would make it singularly inapplicable to article 8307c, which does not invoke the trial court’s broad equitable powers.
The after-acquired evidence defense should not be justified on equitable grounds because it has been criticized for being particularly inequitable. As one court has said:
The Summers rule [the after-acquired evidence defense] does not encourage employers to eliminate discrimination. Rather, it invites employers to establish ludicrously low thresholds for “legitimate” termination and to devote fewer resources to preventing discrimination because Summers gives them the option to escape all liability by rummaging through an unlawfully-discharged employee’s background for flaws and then manufacturing a “legitimate” reason for the discharge that fits the flaws in the employee’s background. Even more troubling is the incentive to “sandbag.” Summers encourages an employer with a proclivity for unlawful motives to hire a woman — despite knowledge of a legitimate reason that would normally cause the employer not to employ her — to destroy any evidence of such knowledge, to pay her less on the basis of her gender, to sexually harass her until she protests, to discharge her, and to “discover” the legitimate motive dining the ensuing litigation, thus escaping any liability for the unlawful treatment of the erstwhile employee.
Wallace v. Dunn Constr. Co., 968 F.2d 1174, 1180-81 (11th Cir.1992). Much of the same could be said for the defense’s effect on workers’ compensation claims. The defense will undermine the legislature’s effort to eliminate retaliatory discharges and may actually encourage unlawful behavior by employers who know that a falsified application is their ace in the hole.
Finally, it must be noted that the equitable goals underlying this new defense may be adequately served under the present law. If a falsified application is proven to be the sole reason for discharge, then the employer is not liable under article 8307c. Swanson v. American Mfg. Co., 511 S.W.2d 561 (Tex.Civ. App.—Fort Worth 1974, writ refd n.r.e.). If the falsified application is not the sole reason for discharge, or if it is discovered after discharge, it should still be admissible to reduce damages for lost future wages on the theory that the employee would have eventually been discharged for a proper reason. See Wallace, 968 F.2d at 1181-84. If the falsified application caused the employer to incur damages by hiring an unqualified person, the employer could file a counterclaim for fraud. The damages in such a counterclaim might be enough to more than offset the employee’s claim under article 8307c. On *374the other hand, the falsified application may have caused the employer no harm because, for example, the employee may have a record of superior performance. Simply stated, it should be left to the jury to decide which party has suffered the greater harm, and this Court should not dictate by fiat that the employee “could have no damages” when the evidence might suggest otherwise.
ROSENBERG, J., joins the dissent.