Employee or independent contractor? Label not controlling.

TI_SpeakSpellDespite a contract between Texas Instruments and Volt, an employment agency, saying that Volt was an independent contractor, the Fifth Court reversed a jury verdict on the issue of whether Udell – a worker supplied by Volt – was an employee for pTexasBarToday_TopTen_Badge_VectorGraphicurposes of workers compensation. Reviewing the record in detail, the Court concluded that “Udell was working on TI’s premises, in furtherance of TI’s day-to-day business, and the detail
s of Udell’s work that gave rise to his injury were directed by TI.” Texas Instruments v. Udell, No. 05-14-01042-CV (Aug. 24, 2016) (mem. op.)

SLAPPed with litigation about litigation

slapp graphicTervita LLC unsuccessfully disputed Sutterfield’s workers compensation claim in a contested hearing; afterwards, Sutterfield sued Tervita for various torts relating to its handling of his claim.  The trial court denied Tervita’s motion to dismiss under the new Texas anti-SLAPP statute.  The Dallas Court of Appeals reversed as to Sutterfield’s claims based on Tervita’s participation in the agency hearing, concluding that those claims were based on Tervita’s exercise of its right to petition.  It otherwise affirmed, concluding that Sutterfield’s claims about a hostile work environment and wrongful discharge “are based on Tervita’s actions and statements outside of the TDI-WC proceeding.”  Tervita LLC v. Sutterfield, No. 05-15-00479-CV (Dec. 18, 2015).

Texas Supreme Court Update: OAG v. Weatherspoon

Last year, we reported on the Dallas Court of Appeals’ decision to affirm the trial court’s denial of the Office of Attorney General’s plea to the jurisdiction in a Whistleblower Act case. Today, the Texas Supreme Court has reversed and rendered, holding that the whistleblower’s report to her superior at OAG was not made to “an appropriate law enforcement authority,” as required by the Whistleblower Act. The plaintiff’s pleadings therefore failed to properly invoke the Act, meaning that OAG’s sovereign immunity was not waived.

Office of the Attorney Gen. v. Weatherspoon, No. 14-0582

Jury Verdict Trumped by Lack of Verified Denial

For 15 years, Steven Anderson was a route driver for Greenville Automatic Gas Co. Anderson quit and went to work for Automatic Propane Gas & Supply, leading Greenville to invoke an employment agreement that it claimed included both a a covenant not to compete and a nonsolicit provision. Anderson and Automatic Propane sued for a declaratory judgment, alleging (after a series of amendments to the pleadings) that Anderson had only signed a shorter contract that contained neither of the terms claimed by Greenville. The jury found that Anderson has not agreed to the terms claimed by Greenville and awarded him approximately $75,000 in attorney fees. The Dallas Court of Appeals reversed, holding that Anderson and Automatic Gas could not dispute the validity of Greenville’s contract because they had failed to timely file a verified pleading denying its validity, as required by TRCP 93. The Court of Appeals also affirmed summary judgment against Greenville on its tort-based counterclaims and remanded the case for further proceedings.

Greenville Automatic Gas Co. v. Automatic Propane Gas & Supply, LLC, No. 05-13-01405-CV

The TCPA Is a Powerful Tool, But Not All-Powerful

The Texas Citizens Participation Act is becoming a powerful tool for disposing of certain types of lawsuits at an early stage of litigation, but an opinion from the Dallas Court of Appeals recognizes two important limits to the TCPA’s scope. Travis Coleman sued his former employer, ExxonMobil Pipeline, and two former supervisors for defamation and related claims. Coleman contended that the defendants had lied about his alleged failure to measure the level of fluid in a chemical holding tank, which led to his dismissal. The trial court denied Exxon’s motion to dismiss under the TCPA, and the Court of Appeals affirmed.

The Court of Appeals first relied on the Texas Supreme Court’s recent holding in Lippincott v. Whisenhunt (4/25/15) to reject Coleman’s argument that the TCPA did not apply because the speech was purely private. Nevertheless, the Court held that the allegedly defamatory statements did not involve a “matter of public concern” because their contents related to Coleman’s private job performance, not health, safety, the environment, or Exxon’s economic interests. The fact that the potential consequences of Coleman’s alleged failure to check the tank included health, safety, environmental, and economic concerns was not enough to transform the statements into a matter of public concern. The Court also rejected Exxon’s argument that the TCPA applied on free association grounds, holding that communications made in the context of free association had to involve some sort of public or citizens’ participation to fall under the TCPA.

ExxonMobil Pipeline Co. v. Coleman, No. 05-14-00188-CV

No Collective Bargaining for Public Employees

The United Food & Commercial Workers Union sought to collectively bargain on behalf of the employees of the Texoma Area Paratransit Systems, a rural transit district. TAPS sued for a declaratory judgment that, as a government subdivision, it was prohibited from collectively bargaining by Chapter 617 of the Texas Government Code. A Grayson County trial court granted summary judgment for TAPS and (more than a year later) awarded its attorney fees. The Dallas Court of Appeals affirmed, rejecting the union’s claim that TAPS’s declaratory judgment action was preempted by federal labor law. Despite 12 years of collective bargaining between TAPS and the union, state law still prohibited collective bargaining with a government entity, and that meant that TAPS was indeed entitled to summary judgment on the issue.

United Food & Commercial Workers Union Local 1000 v. Texoma Area Paratransit Sys., Inc., No. 05-12-01556-CV

Employee’s Assault Claim Preempted by Statute

The Texas Commission on Human Rights Act preempts many employment-related claims in favor of the TCHRA’s own available remedies. In this case, an employee sued her employer, Steak N Shake, for common law assault after her supervisor committed an act of sexual assault. Because the gravamen of the plaintiff’s “unwanted offensive touching” claim was for sexual harassment, the Court of Appeals followed Texas Supreme Court authority in holding that the common law assault claim was preempted by the TCHRA. The Court also rejected the employee’s claim that the claim did not sound in harassment because it involved only a single incident. The Court therefore affirmed summary judgment for the employer.

B.C. v. Steak N Shake Ops., Inc., No 05-14-00649-CV

Age Discrimination Claim Survives Summary Judgment

In this age discrimination employment claim, the Court of Appeals reversed the trial court’s grant of summary judgment for the defendant.  According to the Court, there was conflicting evidence about the defendant’s reason for firing the plaintiff.  Although the defendant claimed that the downturn in the economy forced them to fire the plaintiff, the plaintiff argued that, at the time of his termination, he was working on projects that would have required another year to complete.  This conflict created a sufficient fact issue for the plaintiff to survive summary judgment.

Stillwell v. Halff Assocs., Inc.

Whistleblower Fails to Report Violation of Law

The Texas Whistleblower Act prohibits a governmental entity from taking an adverse personnel action against an employee who in good faith reports a violation of law to an appropriate law enforcement authority. Tex. Gov’t Code § 554.002(a). Those elements are jurisdictional, and a plaintiff who fails to adequately plead facts supporting the claim can have his claim dismissed. The Court of Appeals did just that in an appeal from a $400,000 judgment against the Dallas Independent School District. The plaintiff alleged that he had been terminated for reporting that his supervisor had directed him to perform three gas tests in a single day, which he claimed was unsafe. But the plaintiff’s petition did not allege that any actual violation of law had taken place, just that he had been pressured to do something that might be unsafe. As a result, the employee failed to state a claim in his petition, and the trial court therefore had no jurisdiction over his claim.

Dallas Indep. Sch. Dist. v. Watson, No. 05-12-00254-CV

De Minimis Discrimination

Plaintiff Shabaz Din was born in Pakistan, where he became a doctor and specialized in ophthalmology. After emigrating to the United States in the 1990s, Din took a job training medical assistants with ATI Career Training Center. When the position of Medical Assistants Program Director came open, Din applied for it. ATI chose to go with a doctor of osteopathy instead. That doctor was soon replaced by a different candidate with only a vocational degree, followed by yet another new hire who had not graudated from college. Din filed a complaint with the EEOC, and ATI fired him shortly thereafter. Din sued for national origin discrimination and retaliation, and the jury awarded him damages for back pay, emotional pain and suffering, and punitives.

The Court of Appeals took up several issues in its determination of the case. First, it dismissed Din’s cause of action for retaliation because he had not raised that issue in the underlying administrative proceeding as required by Chapter 21 of the Texas Labor Code (formerly, the Texas Commission on Human Rights Act). As to the damages, the Court held that there was no evidence that Din had suffered any compensible emotional pain and suffering due to the failure to promote, and it therefore vacated that portion of the judgment. The Court did find that there was evidence of back-pay damages, but nowhere near enough to sustain the jury’s award of $83,000, leading to a remand for additional proceedings on both liability and damages for the back-pay issue. Finally, the Court of Appeals reviewed the evidence supporting the jury’s finding of malice or reckless indifference and found it was legally insufficient to support an award of punitive damages. Although there was evidence that the ATI manager had intended to cause Dim “some harm” in denying his promotion, that evidence did not show an intent to cause “substantial injury or harm” because the promotion would have resulted in only a small raise in Dim’s hourly salary.

ATI Enters., Inc. v. Din, No. 05-11-01522-CV