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Texas Revised Civil Statutes article 8307c was repealed and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.
4
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