EMPLOYMENT LAW

FALL 2011

Brown v. Holman, 335 S.W.3d 792 (Tex. App.—Amarillo 2011)

Non-Subscriber Suit by Employee: An employee sued his employer, which was a non-subscriber to the workers’ compensation system, alleging that he sustained personal injuries in the course and scope of his employment. The district court entered a summary judgment for the employer. Held: It sustained the summary judgment holding that the employee’s decision to climb over a fence with a 65 pound mold was the sole proximate cause of his injuries, and thus, the employer was not responsible for employee’s injuries. Note: A review of Texas Labor Code § 406.033 reveals that the defense of sole proximate cause is not listed as one of ways in which an employer may defend the suit. § ( c ) states that an employer may defend the action on the ground that the injury was caused by an act of the employee intended to bring about the injury or while the employee was in a state of intoxication. No other defense is granted but the courts grafted on the defense of sole proximate cause and have begun to use it in many cases to defeat employee suits when what these courts are really doing is saying, in effect, that the employee was guilty of negligence causing his injury. This defense appears to have been ruled out by the law saying that “it is not a defense that the employee was guilty of contributory negligence”. The waiver of the defenses by a non-subscriber was legislated in order to encourage employers to subscribe to the workers’ compensation system and provide penalties if they did not. However, the rulings by the courts of appeals and the Texas Supreme Court in the last several years would seem to have the opposite effect by ruling, in many instances, that the employee was the negligent cause of his own injury. If the employer had workers’ compensation, then this defense would not be available. So, it appears that the Supreme Court and other courts are now rewarding (not discouraging) employers for not having workers’ compensation.

Nafta Traders, Inc. v. Quinn, 339 S.W.3d 84 (Tex. 2011)

Arbitration: A former employee filed a motion to confirm an arbitration award in her favor on her claim against her employer for sex discrimination under the Texas Human Rights Act and sought special damages. The district court and court of appeals confirmed the award. Held: The Court held that the Texas Arbitration Act (TAA) did not preclude the parties from agreeing to limit the arbitrator’s authority in a manner that expanded the scope of judicial review and the Federal Arbitration Act (FAA) did not preempt enforcement of an arbitration agreement that expanded judicial review. The Court recognized that the U.S. Supreme Court in Hall Associates, LLC v. Mattel, Inc., 552 U.S. 576 (2008), held that the grounds for vacating or modifying an arbitration award under the FAA were exclusive and could not be supplemented by contract. The Texas Supreme Court stated that the principal question in the Nafta Traders appeal was whether the TAA likewise precluded an agreement for judicial review of an arbitration award for reversible error, and if not, whether the FAA preempted enforcement of such agreement. The Court held that in the case before them, that neither the TAA or FAA preempted enforcement of such an agreement to expand the scope of judicial review to allow a review for reversible error. Therefore, based on the arbitration agreement, the courts could determine whether the arbitrator committed error in his award.

Rockwall Commons Associates, Ltd. v. MRC Mortgage Grantor Trust, 331 S.W.3d 500 (Tex. App.—El Paso 2010)

Summary Judgment: This was a case involving a summary judgment in a breach of contract case. The only reason this case is mentioned here is that it is a comprehensive review of the use of summary judgment affidavits and this is a subject that is constantly arising in employment cases, since 99% of employment cases face a motion for summary judgment and the use of affidavits. This case is a good one for your summary judgment case notebook.

Twigland Fashions v. Miller, 335 S.W.3d 206 (Tex. App.—Austin 2010)

Sexual Harassment: A former female employee filed suit against her employer alleging a hostile work environment theory of gender-based job discrimination through a male supervisor’s sexual harassment. After a trial, the employee was awarded a judgment. Held: Reversed. The Court noted that the employee had never complained to anyone above her supervisor that she had been sexually harassed before her termination. The Court reviewed the sexual harassment law that the alleged harassment must create an environment that must alter a term, condition or privilege of employment. The harassment must be severe or pervasive in order to create a hostile abusive working environment. The abusiveness required “extreme” conduct but not necessarily any tangible psychological impact on the victim. Rather, abusiveness was said to take a middle path between making actionable any conduct that was merely offensive and requiring the conduct to cause a tangible psychological injury. The concept was that sexual harassment rose to a level that was so extreme and abusive that it deprived the victim of equal opportunity in the workplace. Whether conduct was sufficiently extreme to create an abusive work environment was to be viewed from both an objective and subjective standpoint. Whether a work environment was objectively abusive was determined by considering all the circumstances which may include the frequency of the conduct, its severity, whether it was physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interfered with an employee’s performance. Sexual harassment may give rise to an abusive work environment through either its objective severity or its pervasiveness, or some combination of both. The test is disjunctive. An egregious, yet isolated incident can alter the terms, conditions, or privileges of employment. The inverse is also true, that frequent incidents of harassment, though not severe, can reach the level of pervasiveness, thereby interfering with the terms, conditions, or privileges of employment such that a hostile work environment exists. Note: The case discussed cases on both sides of the issue and is a good review of these “example cases” as to cases that were found to be sexual harassment and those cases that were not found to be sexual harassment. Ultimately, the court of appeals found that the harassment of the supervisor in the Miller case was not severe or pervasive enough to be classified as actionable.