Hennigan v. LP. Petroleum Co., Inc.

(3) determining what amount of hold just,

medical restitution is the eviden- tiary standard reasonable and neces-

sary expenses; medical conviction, (4) affirm the but reform the probation conditions of to delete the payment of restitution to insurance

carrier. my colleagues Since reach other conclu- sions, respectfully dissent. HENNIGAN, Appellant,

Lois Ann COMPANY, INC., I.P. PETROLEUM Company, and GCO Minerals Inc., Appellees. No. 09-92-032 CV. Texas, Appeals Court of Beaumont. Jan. Rehearing Denied Feb. Turkel, Orange, appel- Ellis for

Richard lant. Houston, Jordan, appellees.

Kevin M. for WALKER, C.J., and Before BURGESS, JJ. BROOKSHIRE

OPINION

BURGESS, Justice. summary judgment appeal. is a

This Hennigan Ann sued I.P. Petroleum Lois Compa- Company, Inc. GCO Minerals ny, Inc. for intentional infliction of emotion- distress, “negligent al in- conspiracy, civil anguish” discrim- fliction of mental and sex under the Texas on Hu- ination Commission alleged Rights wrongful Act. The man in connection with the termi- acts occurred Hennigan’s employment as a nation Lois security/gate guard at I.P. Petroleum. Appellees summary judg- filed motion granted ment. The trial court the motion nothing judgment. Ap- take entered a pellant points six of error. raises security guard at the

Lois worked gate field. Her to the I.P. Petroleum oil Hennigan Aldon was also a securi- husband ty guard there. Lois filed for divorce and restraining temporary order obtained going from about which restrained Aldon place employment, and which also Lois’ servants, and “agents, Aldon’s restrained persons active employees, and those participation with them who concert by per- receive actual notice of order Appellant’s service or otherwise.” sonal August terminated employment was after Aldon was served with day restraining temporary order. urges one “the Point of error plaintiff’s claim sex support that An em is not time barred”. discharging an prohibited from ployer is gender. Tex.Rev. on the basis of employee (Vernon 5221k, art. 5.01 Civ.Stat.Ann. Q. [By Appellees Hennigan Are Supp.1992). claimed Counsel Defendants]: timely complaint you jury you file a sworn with trying failed to to tell Rights. filing you the Texas Commission Human retaliation for the di- the document They produced asserted vorce? complaint filed with the the sworn Commis [By Hennigan]: I think A. Lois so. 12,1990, March than sion. It is dated more So, Q. terminated you weren’t because days after the occurrence. As the woman, you’re simply you a because summary seeking judgment movant for filed divorce? defense, ground an affirmative it was A. Do what now? to as a upon appellees establish incumbent terminated, Q. in your You not were complaint law that no was filed matter of mind, you are a woman. because You day period. The March 12 within the 180 simply you were because filed terminated

complaint Complaint”. titled “Amended for divorce? complaint, an amended there Since it is A. Yes. complaint, least original or at must be duty to the movants had establish This is admission she was not termi- original complaint. Appellees there was no gender. nated on the This admis- basis original not argue complaint did negates an element of her sion essential requirements Arti comply with all of the action, entitling appellees cause of to sum- cle 5221k. This is not sufficient to estab summary mary judgment judg- unless summary right judgment to lish a a fact issue. ment evidence raised Henni- rule, general law. As a com matter of gan repudiated in claims she stays running suit of the mencement of response for to the motion regardless limitation de statute of of how includes judgment. The affidavit the fol- may presented, so fectively the cause lowing statements: an amendment relates back to the time very 1. for [Counsel defendants] original. filing Speck, of the Curtis v. upset, aggravating and had me so I did (Tex.Civ.App. — Galveston he not realize what was ask- completely 'd). summary judgment writ ref The ing saying. or what was original not reveal the record does date they 2. real reasons fired me filed Texas complaint was with the Com another They wanted man several. Rights. Appellees Human mission on also, they to job, in the wanted hurt burden, their initial that is to failed to meet divorce. me because I filed for right as establish a me, got together to hurt The men Property Nixon v. matter of law. Mr. get in retaliation for the rid of me (Tex.1985); Management, 690 S.W.2d 546 replace an excuse to divorce and to have Although appellant has Tex.R.Civ.P. 166a. with me a man. error, summary judg for the motion shown for 4. When [counsel defendants] ground an alternate ment contained question “You were not asked me the Thus, re summary judgment. we must mind, terminated, you because your may two point of error before we view terminated sim- are a woman. You were the error consider whether raised divorce,” I was ply you because filed . error point of error one reversible aspect legal my thinking of the answer, put my trying to into just two “the

Point of error contends they thought had own what I done plaintiffs claim for sex words support me for all the They nor to me. above was not abandoned I am a woman. The reasons and because for sum by plaintiff.” motion waived question very in the genu “simply” word urged there was no mary judgment responding confusing, and I had trouble material fact on an essential issue of ine question to it. was worded such action for element of it discrimination, way confusing, tricked upon deposi to be based sex me. testimony, as follows: tion husband; (4) They persecuted me and fired me from her the conduct was outrageous husband and I am a because her woman. discharge agents appellees conspired 2, 3, and 5 are eoncluso- Statements A her. review

ry opinion. Appellees object statements Hennigan complains record reveals that ground. legal ed on that A conclusion only of fact of termination and an affidavit is insufficient to raise an issue therefor, motivation not the manner response of fact in a motion sum terminated. The con- which was record mary judgment. Corp., Mercer v. Daoran independent tains no conduct termi- S.W.2d 580 Statements employment, nation of and no evidence that place deposition testimony was affected in an extreme termination previous ad context do not refute her outrageous and manner. Diamond See conclusory beyond mission assertion Marketing v. Refining Shamrock and Co. “they me ... I am because a woman.” Mendez, (1992). 844 of S.W.2d 198 Point Summary judgment proper was three error is overruled. negates summary judgment evidence appellant’s sex an element of discrimina urges Point error the trial of four Points tion action. of error one and two granting summary judgment erred in court are overruled. negligent action on her cause of for inflic of There is no tion emotional distress. of “the argues Point error three recognized negligent in separate tort for support facts a cause of action for inten employ fliction of emotional distress in the tional infliction of emotional distress which Conaway ment context. v. Data Control solely is not based on alone.” termination (5th Cir.1992), Corp., 955 F.2d 358 cert. express contrary, Absent an contract to the — -, denied, 186, 121 U.S. 113 S.Ct. employer an has the dis right absolute (1992); L.Ed.2d 131 v. McAlister Medina charge employee with or without cause. Inc., (Tex. Co-op., 830 659 Elec. S.W.2d Scott, East Line R.R.R. v. 72 Tex. & Co. 1992, denied). App. Antonio writ On — San 70, (1888). 10 99 is an S.W. Where there 2, 1992, Supreme December the Texas intentional infliction of emotional distress absolutely negligent in Court eliminated independent discharge of the em fliction of emotional distress as a cause of ployee the fact the conduct ancil Kerr, Tex.Sup.Ct.J. v. Boyles 36 lary employment to the is no termination of 353277, (December 2, 231, 1992). 1992 WL defense for such conduct. Casas v. Wor four is Point error overruled. Co., (Tex.App nick 818 S.W.2d 466 . —Cor pus granted). Christi writ In order five contends Point error cause of support to assert a action intentional “the cause action distress, Hennigan In conspiracy”. infliction of emotional order to assert civil (1) appellees conspiracy, must acted intentional for civil Henni- show: cause action (2) ly recklessly; gan or the conduct ex must there was a combination of show (3) outrageous; appellees’ accomplish ac un persons treme two or more distress, appellant purpose, accomplish or to a lawful tions caused emotional lawful (4) purpose suffered unlawful means. Carroll v. the emotional distress Chevrolet, Inc., severe. Auto Timmers 592 S.W.2d 922 appellant was Tidelands actionable, Walters, (Tex. a civil con To be Club n.r.e.). wrongs spiracy writ ref’d must consist would App. — Beaumont conspirators (1) appellees’ actions actionable indi Hennigan argues: retaliatory vidually. International Bankers Ins. nature because she Life (Tex. Holloway, had the divorce S.W.2d discharged until she Co. v. husband; (2) 1963). in grant court did not err upon her trial petition served discrimination; (3) Hennigan’s judgment dis ing summary sex termination was ap- did and distress claims. Since outrageous because she crimination conduct was em nothing wrong pellees to her were entitled with reference claims, underlying they are likewise support received little no ployer and she Action summary judgment on the over- Other Causes entitled to five is arching conspiracy. Point of error pleadings, Appellant, by proper stated overruled. action an intentional inflic- majority emotional distress. The tion of “Did the of error six states: Point (1) Appellant must states that show mo granting trial court err in defendants’ or reck- appellees intentionally acted summary judgment where tion for (2) extreme lessly; the conduct was fact genuine issues of material facts show (3) appellees’ outrageous; entitled to still to exist?” To be appellant emotional dis- actions caused case, appellees judgment on the whole tress, (j) the emotional distress prove must as a matter of law no by appellant was severe. suffered majority of material fact exists as to one or Appel- misplaced has the burden. of each of more elements as a matter of law that lees have to show Elec causes of action. American Medical her cor- one or more of these elements of tronics, Korn, (Tex. Inc. v. totally rectly pleaded causes of action denied). Summary App. writ as a matter of law. absent — Dallas proper as to each of is, course, relying correct in The Court pleaded. Point of error six is over theories Supreme Court upon very the recent Texas judgment is affirmed. ruled. The Kerr, Tex.Sup.Ct.J. Boyles case of 2, 1992), (December 1992 WL 353277 AFFIRMED. clearly any cause of ac- which eviscerated solely negligent on tion based infliction BROOKSHIRE, Justice, dissenting. emotional distress. a sex case. Basi- This is concerning ap- As material facts to the rights if cally is crucial to feminist this suit on a civil pellant’s cause of action based not the entire feminist movement. misplaced conspiracy, I think the has Court pro- in a the burden majority appellant The hold that made forcing plain- ceeding. majority is admission that she was not terminated prove tiff her case. This is error. deference, I gender. With the basis of My follow. dissent. reasons Appellant’s Deposition summary judgment was A motion for party, if a litigation, In the course of summary The motion for granted below. defendant, gives plaintiff or testimo- either adversely appellant on judgment ruled ny deposition in a which is not consistent pleaded by her. several causes action perhaps contradictory to the with and exploded all Appellees have not party of that same at the sworn causes of merits, a fact issue is raised to trial on by jury or the bench. major complaints her was discrim- be determined One of deposition testimony and Appellant appellant’s con- The gender. ination based upon appellant’s response and her affidavit rights infringed tends that her view, my raise response, contained in the Rights on Human Commission issue of a material fact. pleaded wrongful acts were Act. The with the termi- have occurred connection conclusive, party an admission of a To be employment as a nation of the clear, unequivocal, free from must be security/gate guard. doubt, knowingly understandably and and The declarant by made the declarant. employed at relevant Appellant was fully appreciated must have under- security guard gate at the of an times question Appellant involved. did stood the IP employer was Petroleum. oil field. Her deposition question. not so understand conceded, prohibited employer, it is is An employee on the that we must take as true discharging an basis It is axiomatic from im- It is art. 5221k the affidavit of the non-movant. of sex. Tex.Rev.Civ.Stat.Ann. look at the entire (Vernon portant also for us to Supp.1992). 5.01 § summary guard upon people it three on the at record insofar as trenches shifts appel- states that the judgment proof. gate. A crucial document exists The document by a replaced lant was man. Since we the record before us. In document (as non-movant’s evidence as interpret the doc- must take the appellant states evidence, correct, ument) my illegally being was true and under oath she necessary least shows opinion, at discriminated violation amended, appellant Rights 42 reasonable inference that Civil Act of (West 1981), seq. budgetary 2000e due to not laid due to cut- U.S.C. et was off sex, by a being actually replaced of a then backs but was female. She Thus, employee guard gate. their male at the important certain facts and states inference of sex chronology. discrimination shown. She She was hired on March Appellant’s in the Conflict hour; earning per per- was she was $5.00 Testimony Own satisfactorily job, per- forming on her Remembering this is a satisfactorily forming gate her duties aas realizing judgment proceeding and guard. person No other was laid due off which in there an affidavit cutbacks; actually budgetary she was destroys judgment practice the conclusive- by a replaced says male. She the excuse— testimony, it deposition should ness budget- firing the reason —for appellant be stressed swore necessary ary By a inference cutbacks. upset very very implication, a reasonable this cer- in which the attor- aggravating manner appellant tainly raised an issue that deposition. ney questioning her at gender. terminated because of her A male what he swore that she did realize She immediately replaced her. asking In this really about. affida- my parts In there are critical of the view vit, the employer she raises the appellant’s affidavit that are much more job. wanted a man the She further than mere conclusions. She stated wanted to have employer stated that the job man in her another was wanted on replace her with a man. an excuse to place, and the movants wanted to have and the Whether we believe this affidavit replace to her a Im- excuse with man. proof prof- summary judgment other portantly, there is a document the record by simply is not de- fered the non-movant a entitled “Letter Recommendation”. appellant’s We must take af- terminative. appellant This had letter stated being Appel- true and correct. fidavits as Co., in the of IP employ been Petroleum genuine issue of lant’s raises Inc., 20, 1989, ei- from about March until material facts on sex discrimination. September ther August or 1989. She Hamman, 163 Tex. Gaines regularly on The sched- worked schedule. (1962). eight a day, days ule was hours a seven Evidence, a new wit- Under the Rules week, day with occasional off. concerning an ulti- give testimony can ness completely Her work had been satisfacto- Rule 704 mate issue. Tex.R.Civ.Evid. difficulty perform- had no ry and she had opinion testimony in the form of an permits ing job. onerous The letter of recom- her objectionable simply is not and same termi- mendation stated the reason for an ultimate issue. it embraces because “lay-off cut- budgetary nation due to quali- by exists There also an affidavit backs”. But no reduction the number are at- fied affiant that the exhibits that place. letter guards part took This are appellant to the affidavit of the tached directly by contradicted and true correct. situation. concerning lay-off affidavit personal Appellant that she had before us swore There exists another document knowledge that are set out although plaintiff facts which reveals that and that alleged budgetary response cut- her affidavit of was laid off due to “Mr. working true and correct. She swore: backs, still are employer complies with Tex.R.Civ. me Her affidavit aggravating and had very Jordan was give non-expert she could Evid. 701. As what completely realize upset, I did not so perceptions. on factual opinions based saying.” I Mr. asking or what was he was I have opposing attorney. was the Jordan appeal is cast an unusu- Although this Jordan; doing he was of Mr. no criticism opinion posture, the Court’s procedural al swore this raises issues. She job; his to the feminist interest is of watershed man on practical another remedies employers that her wanted movement and to on Human by under the Commission to termination available job which relates dispute of this Rights Act. The resolution sex. She fur- of her discrimination because appellate level is im- at this intermediate later in her affidavit: ther swore the women of Texas portant pivotal and all the above reasons They fired me for rights of all Texans to the civil The word I a woman. and because am may discrimi- especially to those who be very con- question in the “simply” gender. Ap- of their nated because responding I trouble fusing, and had day in court. should have her pellant in such a question was worded it. The rights of her pleaded a violation She it tricked confusing, way as to with in concert acted defendants me. deny her attempt in an her husband me and me They persecuted Const, 13. She rights art. Tex. woman, added) (emphasis I am a were en- that the defendants pleaded also ex- deposition answer has been Since deny her her conspiracy to gaged in a civil of a away, purposes least for plained at rights. She has constitutional civil and these an- proceeding, of the various the conduct pleaded that binding upon conspiracy her. which simply not a civil swers are defendants was legal justifica- gotten and without was malicious repeatedly She swore per- conspiratorial acts were tion and the an excuse would of and terminated so rid the intent to carried out with formed and Directly with man. replace exist consequences necessary injure and intend- inference reasonable conspiracy civil oppression. The of this raises the issue of ment that her and unlawfully discharge also to was sex. because of employment. deprive her of defined as be- conspiracy may be A civil the Facts Rendition Her Shorthand of wrongful a to enter into ing agreement affidavit draws reading of her entire A manner; also in a tortious proceed to act or giving a that she was me to the conclusion by act committed must exist some there facts, a short- of the or rendition shorthand or parties to advance more of the one or Roy Ray, rendering the facts. hand of 2 R. implement the or to pursue conspiracy the Texas Law of appellees and Criminal The agreement. Evidence Civil conspiratorial affida- (rev.1980). According to her 1397 law the a matter of negated as have not vit, that she was appellant swore conspiracy. when the for civil cause of action was a fired because she terminated Filing the Claim The Timeliness not woman; her statement is it is clear that of She guesswork. mere solely on grounded on the contention defend The defendants clearly contradicted the that forth facts set claim of sexual reduction was to be a theory that there appellant, the late and that filed too of in the number I effect, and a reduction of court. force herself out testified appel- Her effect economies. disagree in order to counts. guards on both would employ- the realistic rationally on is based shows affidavit lant’s 12, August helpful is the affiant and ment was terminated perception of joba completely properly and is of a fact issue filled out determination She the dated record referral complaint of the determination service helpful to certainly 14, August exists. material fact or not a whether disposing the defendant acknowledgement receipt mary judgment for There is an of only proper Au- entire this claim for discrimination dated of the case is if if 1989, 21, not by Carolyn plaintiff who is could gust one Jones as a matter lawof upon pleaded. any an EEO officer. The the theories succeed notification form of 428, Burns, re- complaint has been 656 S.W.2d Delgado states v. here, notifi- appropriate (Tex.1983). this rec- Certainly ferred acknowledgement specifically ord, cation and have not a matter of the defendants August complaint refers to the dated plaintiff not suc- proved that the could law complaint certain- 1989. Her initial of any any theories or one of the ceed complaint certi- In this ly timely that she numerous causes actions filed. and affirmed as to all the information fied pleadings. We pleaded by her live has being and accu- contained therein as true Bums, supra: from quote Delgado made the form complaint upon rate. Her from appeal The issue on state by appropriate is furnished estab judgment whether movant Hence, complaint not agency. lished as a matter of law his entitlement only timely promptly filed. filed but by conclusively certification, place opine, Her took the genuine material proving no issue of any since it was on oath affirmation his cause action or facts exists as to to her the state the form furnished City Houston v. Clear defense. agency. The of a act can- absence notarial Authority, Basin Creek held her. How the state not be can (Tex.1979); v. General Motors Gibbs require lay-woman, agency this unskilled (Tex. Corporation, 450 S.W.2d law, go the niceties and subtleties 1970); 166-A. Tex.R.Civ.P. notary public when the form before Corpora Gibbs v. Motors See General furnished, place no such a agency has tion, Gibbs Hence, appellees’ major notarial act? first summary judg that a movant holds Appellees not defense is not valid. have as a mat proceeding ment must establish as a matter of law that her com- shown genuine of law that there is no ter timely. plaint was not filed more of essential fact as one or person title The name and the plaintiff’s of action. elements complaint Rita originally receiving the course, applies rule to each And Laughlin, Supervisor. Employment pleaded separate cause action that is record, apparent From the it is plaintiff. entire negat- simply provides no that the defendants have rule itself that there must be necessary any at least element of fact and ed one issue as to material pleaded pre- of action moving party prove numerous causes must plaintiff. sented matter of is entitled to party light In the dis Tex.R.Civ.P. 166a. of law defendants move for A defendant or who below, there is an it is clear that cussion of judgment have the burden actual, fact as to the material materi showing as matter of law that no appellant’s employment to whether the as plaintiffs issue of fact exists al of sex discrimina was terminated because County of Arnold v. cause action. Nat. Texas, Inc., Bellair, Aviall Inc. v. tion. Co., 165, of 166- Fire 725 S.W.2d Mut. Ins. 1991, (Tex.App. — Dallas (Tex.1987). The defendant-movant 167 denied), definitely We point. writ accomplish the defendant’s may quote: showing that judgment evidence law plaintiff’s negate Aviall must as matter least one element of at of Bell elements each of action has been es one or more action or causes prevail plaintiff. s causes action conclusively air' tablished each LaChance, on a 405 matter law v. 828 S.W.2d Einhorn defense v. Rosas causes writ Bellair’s (Tex.App. Dist.] [1st — Houston Store, 518 S.W.2d Food w.o.j.). importantly, most a sum- Buddies dism. But (Tex.1975); Corp. v. Adam Dante (Tex.1972).

Sharpe, added) (emphasis any And doubts in the matter must be resolved favor of non-movant. See Mr. Property Management, Nixon v. S.W.2d 546 KUCZAJ, Appellant, Keith Thomas Texas, Appellee. The STATE of No. 2-91-185-CR. Texas, Appeals Court Fort Worth. 3, 1993. Feb.

Case Details

Case Name: Hennigan v. LP. Petroleum Co., Inc.

Court Name: Court of Appeals of Texas

Date Published: Jan 28, 1993

Citation: 848 S.W.2d 276

Docket Number: 09-92-032 CV

Court Abbreviation: Tex. App.