*1 “each 924(c) firearms § offense [under ]
must linked sufficiently to a separate
drug trafficking offense” order to avoid
violating double jeopardy principles. Privette,
United States v. 947 F.2d (5th Cir.1991).
1262-63 Accordingly, we
vacate the sentences with respect to the 924(c) counts and remand for resentenc
ing. See United Tolliver, States v. 61 F.3d
1189, 1222(5th Cir.1995). ij:
ífc
III. CONCLUSION
We AFFIRM appellants’ convictions their sentences for the drug conspira-
cy offenses. We VACATE the sentences Jones,
of. Baptiste and Parker for firearms
violations and REMAND for resentencing
them on those offenses.
Steven KLUMPE, M. Plaintiff-
Appellant,
IBP, INC., Defendant-Appellee.
No. 01-11008.
United States Court of Appeals,
Fifth Circuit.
4,Oct. *2 illegal. been
Klumpe’s conduct affirm. We
BACKGROUND on-the-job an from arises This matter Amarillo, slaugh- Texas IBP’s accident Escamilla, employee an Chris terhouse. the plant.2 cutter there, a operated hock three- severed cutter April On hand. right from his fingers and-a-half Firm, Law Wood, Wood The H. James son,3 and step Klumpe’s Escamilla (ar- H. McMains Amarillo, TX, Russell Amarillo at IBP’s worked Klumpe also McMains, H. Russell Law Offices gued), accident, Klumpe time of At the plant. DeGuerin Christi, TX, Dick W. Corpus about for at IBP working had Houston, Dickson, & DeGuerin (argued), from graduated since years —ever Plaintiff-Appellant. TX, for position in the was high school—and Ray- Mark (argued), attended M. Cohan Robert trainee. superintendent McElhaney, Steiner, Masur Scott but mond following the accident Escamilla Dallas, TX, Kelly D. Ut- Walker, Jackson supervisor. Wilson, & Berry, Stein Underwood, singer, stat- in Texas’s participate IBP does Defendant-Ap- TX, Amarillo, Johnson, scheme, but compensation utory workers’ pellee. “Workplace plan has its own instead —the Program-Texas” Settlement Injury orientation an
(“WISP”). conducts the benefits regarding employees new PARKER, orientation, KING, Judge, During the Chief Before of WISP. a ELLISON,1 pre- from District employees and reads to Judge, supervisor Circuit given also are Employees script. Judge. pared called plan, summary written Judge: PARKER, Circuit M. ROBERT or “SPD.” description” “summary plan contains the SPD states that script M. Steven Plaintiff-Appellant know you need everything “just about against suit discharge wrongful brought rights your including Program, your Inc., claiming IBP, about employer former receive benefits To responsibilities.” and solely for his refus- was terminated that he “Ac- sign an WISP, workers must jury agreed act. A illegal commit al to According to Waiver.” ceptance punitive compensatory awarded be- agreement “is waiver script, subsequently court damages. claim will your IBP that you and however, tween judgment, take-nothing entered Pro- participation by your settled no evidence there concluding son, adopted legally Klumpe's 3.Escamilla District Judge the Southern 1. District parties refer both Texas, but since sitting by designation. son, too. step we will Klumpe’s cutters") "hy- (or "dedaw cutters 2. Hock the hoofs sever used to scissors” draulic a cow. gram you and that will not sue IBP in civil to secure Escamilla’s waiver. Klumpe ar- Court.” gues that to seek Escamilla’s waiver would have been an illegal act because the SPD Shortly accident, after the Klumpe was and orientation script misrepresent several times asked to secure a waiver *3 benefits provided under WISP. The jury from Escamilla. Each time he refused. agreed and $802,000 awarded Klumpe 15, in 1997, April On Escamilla sued IBP in compensatory damages and $10 in million state court. Sometime lawyer later IBP’s punitive damages. The district court sub- Muncy Ken received a subpoena ordering sequently invited IBP to a file motion for appear Monday, 30, 1997, June judgment as a law, matter of did, which it for deposition testimony related to Escam- and after briefing, the court rendered illa’s suit. The subpoena also ordered take-nothing judgment. Klumpe made a produce “any and all documents timely appeal. which show the crewing guidelines for the hock cutter the time of the incident in
question.”4 Klumpe
DISCUSSION
brought the subpoena
to the attention of
supervisor,
Kurt
In diversity cases,5
apply
we
state
Suther, who told Klumpe not to turnover
substantive law together with the federal
the documents but said that he would rules of procedure. See Ellis v. Weasler
speak with Muncy about the matter. On
Inc.,
Eng’g,
326,
258 F.3d
amended on
the Friday before the deposition, Suther
grounds
other
(5th
Klumpe brought a wrongful discharge overturn the verdict “unless the facts and action IBP, against claiming that the sole point inferences strongly ‘so and over reason for his termination was his refusal whelmingly in the movant’s favor that rea Crewing guidelines 4. op- describe how IBP's IBP is a South corporation Dakota with its trial, erations staffed. At counsel for IBP principal place of business there. stated that “hundreds of thousands of dol- spent lars” are developing guidelines, for that reason IBP does not disclose them. Penal the Texas 32.46 Section contrary not reach jurors
sonable ” which upon only provision v. Code Int'l Omiteck (quoting Id. conclusion.’ Pilot Sabine making his (5th relies Cir. Co., 11 F.3d Clorox to se using deception prohibits It claim.6 1994)). See of a document. the execution cure (Supp.2002). of at-will the rule 32.46 adheres Texas Ann. Code Penal Tex. jury, employment charge under which court’s employment, may appeal, be terminated mirrors term challenged an indefinite is not which Schroeder See cause. commits person without “A says: will It § 32.46. Inc., Works, 813 S.W.2d Iron to defraud if, intent Texas illegal act *4 rule to this exception (Tex.1991). An he, deception, by 489 ... any person harm Pilot in Sabine announced doctrine doc any is the sign or execute to another causes Hauck, 733 687 S.W.2d Service, Inc. v. of interest pecuniary the affecting ument supreme court Texas (Tex.1985), the where an sub act Committing such any person. sue right the employee an at-will gave penalties.” criminal violator jects fired he was when discharge wrongful for aas judgment granting In its order an unlawful commit refusing solely deter- court law, of matter 735. id. at penalties, carrying criminal act decep- of no evidence there was mined claim, the em whether Pilot In Sabine (if any) would deception or tion have constituted would conduct ployee’s the waiver. sign Escamilla have caused examination requires act illegal said: court the district Specifically, the con prohibits allegedly provision as a must determine The trial court duct. mentioned to elaborate failure [T]he makes provision whether of law matter in con- inconsistencies or the programs id. See offense. a criminal its violation question in do documents tractual that, After J., concurring). (Kilgarlin, 736 deception constitute themselves employee’s whether decides un- prosecution a criminal support would illegal act.” “an been would conduct 32.46 Section Penal Code der Texas Charges-.Business, Texas PatteRn JuRY waiv- if he obtained against (2000 Employment 107.3 PJC & Consumer in this case devoid The record er. jury is ed.). finding, this make To discrep- that those omissions evidence an offense on what constitutes instructed judgment affect likely to ancies were id. at issue. See provision of the this before the case for con responsible plaintiff-employee of a violation elements Essential Court. solely fired he was jury that vincing missing. 32.46 of Section illegal act to commit refusing no evidence that there argues also preponderance do so must was was fired reason that the sole Pilot, S.W.2d 687 See Sabine evidence. release. Escamilla’s get refusal employ- at-will exception the rule of aside, it law law makes we note that Texas 6. As an employees of non- protects the ment which against em- illegal or discriminate to fire retalia- against similar subscribing employers compensation a workers' has filed ployee who Corp., 988 v. Diversitech Watkins tion. See § 451.001 See Tex. Labor claim. Code Ann. apply to non- (1996). does not 440, (Tex.App.-Houston law The same [1st S.W.2d Hence, denied). co-workers pet. Disl.] See Tex. employers, however. subscribing against retalia- protected Klumpe are not Bouchet, like 55- 963 S.W.2d Ry. v.Co. Mex. either. Further, tion (Tex.1998). no common- there is I. Terry Zimmerman. him Zimmerman told that unless the release was signed Escam- rightly conclude that illa’s medical Klumpe was bills go fired for unpaid. not getting Escamil- There First, la’s also release. suggests record Zimmerman had that the stated reason for confrontational Klumpe’s termi- extracting a waiver nation pretext. injured another discussed IBP employee. A supervisor the subpoena week after accident, Klumpe met with Escamilla suit. Having re- apparently Suther to see what the company intended solved objection Suther’s releasing to do for Escamilla. Klumpe testified that subpoenaed documents, Klumpe forwarded Suther threatened to fire him unless he them to his attorney. IBP argues that got Escamilla to sign the waiver.7 Al- toning over the crewing guidelines for the though Suther denied making any threats, plant entire far exceeded the scope the jury could have simply chosen to be- subpoena, which requested only the guide- lieve Klumpe instead. lines related to the hock cutter. But IBP’s Third, the jury could attorney find never told IBP was Klumpe which docu- *5 motivated to get ments bring to to Escamilla’s deposition, the waiver any instead means letting necessary. Klumpe decide for himself evidence what showed that injury was responsive to virtually the subpoena. identical IBP also to Escam- argues that illa’s Klumpe had occurred should have years waited several before. until Monday to Estrada, hand over Andres the like Escamilla, documents. lost three knew, IBP however, fingers that Klumpe while operating a hock cutter. hired an attorney to represent Following him in the incident, Estrada IBP auto- Escamilla suit. In a letter cutters, Blackburn had mated the but later concluded that advised IBP that personnel they should did not work as well as the manual refrain from discussing suit ones and switched back. Unlike Escamil- with Klumpe unless he was present. la, Estrada elected to receive benefits un- Thus, IBP should have known that Klumpe WISP, der thus waiving right to sue. would make available to his own attorney Estrada received a total $77,000— the subpoenaed documents and that he $65,000 for medical expenses, $12,000 and would do so before he was scheduled to be in lost wages. Knowing that the hand- deposed on Monday. Nor should IBP held hock cutters had an established histo- have surprised been to learn that Black- ry of causing severe injury, IBP had an burn copies sent subpoenaed docu- incentive to secure Escamilla’s waiver be- ments to the other attorneys fore he had a chance to sue. The amount required as was to do under the Texas settlement, Escamilla’s as compared to Rules of Civil Procedure. what Estrada got, is evidence of expo- Second, the jury could sure conclude that IBP was facing. so, too, And is the IBP attempted to pressure fact Klumpe into that the company sought out Klumpe getting Escamilla’s waiver. Klumpe get waiver, testi- rather than Escamilla’s fied that immediately after the accident he own supervisor or someone besides a close was met at the hospital by IBP employee relative. Q: [D]id Mr. Suther ever specifically talk A: He told me get that I will that waiver you about the waiver? signed Ior will—I your will fire F— A: Yes. ing ass.... Q: What you? did he tell allow sum, would the record In like- that is 4.) performance Promising in fact was not Klumpe that
to conclude of another judgment docu- to affect ly confidential disclosing for fired actor does that and transaction compelling IBP had ments, and not will or knows perform intend not ag- and waiver get Escamilla’s motive performed.... be incident it. Besides sought gressively § no 32.46 under there convicted crewing guidelines, Thus, be created least dur- have at misconduct must any defendant evidence material illusory prom- IBP, or made impression years’ false Klumpe’s ing at least there given Klumpe argues reason ise. stated, no other orienta- the SPD in which together, facts areas these three Viewing termination. representa- deceptive make script was fired tion could infer no there we If conclude tions.8 waiver. getting for not solely in fact document that either evidence prosecu- misrepresentations, such makes II. 32,46 sustained. § tion under find that jury could Although seeking proof there is unless And refusing to solely for IBP fired un- have release Escamilla’s waiver, is insufficient there Escamilla’s get 32.46, firing IBP’s lawful commit Klumpe would to a rise give try refusing agreed instead had he act illegal ted will examine We claim. Pilot Sabine deception. requires 32.46 Section try. detail. script some orientation SPD “de defined court the district charge, its concerns deception *6 alleged The first include: ception” injured for benefits of lifetime provision or confirming by words 1.) Creating or the SPD contends workers. is fact that of impression a false conduct benefits, WISP but that such promises another of judgment the likely affect strictly lim- under only them provides fact the actor transaction, for only circumstances, and even then ited true; to be not believe de- The SPD weeks. of 401 maximum plan the payments” of “kinds impression false 2.) scribes correct Failing to bene- short-term judg- beginning provides, likely affect fact that is of Disabil- “Temporary is kind transaction, first The fits. in ment of another until provided are which ity Payments,” or con- created previously the actor im- medical maximum reaches conduct, worker and that or by words firmed Pay- “Impairment is Second provement. to be believe not now actor does where in cases ments,” provided are which true; ... [or] time, offense....”). we note same At the script and orientation the SPD 8. Even if instructed was never case juiy in this argues that deceptive, fact law, the liability. Under Texas accomplice is deception. If act to create no did guilty anas the defendant free find jury is not however, correct, still have Klumpe could au instructions court's accomplice unless § violating 32.46 for responsible held the essential include so and to do it thorize See Tex. accomplice. Code Ann Penal finding. making such proof for elements criminally re person is 7.02(a)(2)(1994)("A § (Tex. State, 926 S.W.2d Plata See committed offense sponsible for an Thus, his Sabine sustain Crim.App.1996). acting with intent ... if of another conduct that his prove Klumpe had claim Pilot the of commission or assist promote of have constituted directs, aids, alone conduct solicits, fense, encourages, he § 32.46. fense under person to commit the other attempts to aid the worker has been permanently disabled. pressly permit appeal from the arbitrator’s specific The amount for paid impairment decision. Klumpe argues that IBP does depends on percent “the of impairment to not consider itself bound an arbitrator’s body Third, as a whole.” the SPD decision, and points to a recent example promises “Supplemental Payments,” which in support of his contention. The jury up make for the difference between the heard evidence that former IBP employee worker’s pre-injury and post-injury in- Michael agreed Glover proceed come. SPD does not specify the WISP, but was dissatisfied with IBP’s length of for time which IBP responsible treatment of his claim for benefits. He payments the first three kinds. The sought to have his claim reviewed by (cid:127)& existence of the last category payments, neutral arbitrator in accordance with entitled Payments,” “Lifetime however, in- provisions. WISP’s The arbitrator found dicates that payments other do not Glover, but IBP refused to honor the continue for the life of injured employ- decision, arbitrator’s claiming that the ar- ee. According SPD, to the to receive life- bitrator had exceeded powers.10 time payments injured employee must be “unable to return to any work whatso- The Federal Arbitration Act prerequisite suggests (“FAA”) governs actions to ever”-a a se- enforce an ar vere disability. Six disability categories bitration clause in cases in which the dis qualify for lifetime payments.9 these, For trict court has original jurisdiction. See there no dispute that IBP is bound to One, Bank v. Shumake, N.A. 281 F.3d provide lifetime benefits. It is for the (5th Cir.2002). Act, Under the types other payments the maxi- agreement arbitration is enforceable un outlay mum is 401 weeks. We conclude less “such grounds exist ... for revocation that the SPD is not deceptive in describing of the contract.” § 9 U.S.C. 2. One such the lifetime benefits. ground is where the arbitrator has exceed alleged second ed misrepresentation powers. 10(a)(4). See id. In that regards WISP’s provision. arbitration aggrieved party may petition the The orientation script states that IBP court to vacate award. See id. *7 “bound to honor” the By decision aof contracting “neutral arbitration, for “It pre is arbitrator” regarding injured an sumed employ- that parties intended to relin ee’s coverage under the plan. quish The SPD their right to appeal the merits of makes similar representations. It is un- dispute, not right their appeal to an disputed that neither the SPD nor the arbitration award that resulted from the orientation script nor plan itself ex- arbitrator’s abuse of authority or bias.” plan Section 3.16 of provides: arms, both legs, both or one arm and one (a) Payments Settlement paid leg; shall be until or the death Employee of the for: (6)an[] injury to the resulting skull in (1) total permanent and sight loss of in insanity incurable imbecility. or eyes; both (2) ankle; loss of both feet at or above the 10. Glover succeeded enforcing the arbitra- (3) loss of both hands at above or tor's decision in federal district court. wrist; has taken appeal an judg- that court’s (4) loss of one foot at or above the ankle ment, IBP, Inc., see v. Glover No. 02-10277 and the loss of one hand at or above the (5th Cir.), and argue continues to that the wrist; arbitrator exceeded his authority, Appel- see (5) injury an spine to the that results in Br., passim. lant's permanent complete and paralysis of
286 with- was difficult at IBP Working ability. Greco, F.Supp.2d 6 Scandia, v. Inc. Team Later, Estrada hands. of both use out the can parties (S.D.Ind.1998). The 795, 798 cutter, found but the hock was returned clearly they unless FAA of the out opt
not
to use
physically)
(mentally and
difficult
Roadway
it
See
do so.
intent to
their
state
fingers.
cut off
that
machine
the same
F.3d
Kayser,
Inc.
Sys.,
Package
satisfactory
another
having found
C.J.)(Constru Never
Cir.2001)(Becker,
(3d
294-95
quit.
had to
eventually
IBP, he
position
Lehman
v. Shearson
Mastrobuono
ing
52, 115 S.Ct.
Hutton, Inc., 514 U.S.
that
court
the district
with
agree
We
case, we
(1995)).
this
L.Ed.2d
not de-
script were
and orientation
SPD
sought
parties
no evidence
see
informa-
more
failing to include
for
ceptive
differ
under provisions
arbitration
require
program.
duty
restricted
tion about
We therefore
FAA.
than those
ent
part
not
is
duty program
The restricted
case
in Glover’s
appeal
IBP’s
agree-
conclude
anof
product
It was
WISP.
orientation
SPD
make the
union.
the worker’s
IBP and
ment between
deceptive.
script
elects
injured employee
an
or not
Whether
WISP, he must
under
benefits
to receive
allegation
Klumpe’s
turn
Finally, we
within, thirty
position
compatible
find a
Pro-
Duty
“Restricted
IBP’s
regarding
im-
medical
reaching maximum
days of
orientation
to the
According
gram.”
will
position
find
Failure
provement.
assigned
“will be
injured
worker
script,
dis-
for
eligibility
employee’s
not affect
accor-
duty program
restricted
ac-
he refuses
unless
ability payments
assigned
the restrictions
with
dance
in-
employment. WISP
suitable
cept
nothing fur-
says
script
your doctor.”
for
approach
alternative
to be
tended
says
the SPD
program,
this
about
ther
inju-
on-the-job
workers
compensating
duty is
Restricted
it at all.
nothing about
on
duty program,
ries;
the restricted
reach-
employee
injured
until
available
reintegrating
hand, is a means
other
improvement.”
medical
“maximum
es
di-
Neither
workforce.
IBP’s
into
them
days
thirty
has
Thereafter,
employee
em-
or whether
on how
depends
rectly
IBP that
jobaon
bid
find and
the other.
proceeds
ployee
can-
disability.
If
concomitant
employee
position,
find such
notwithstanding,
foregoing
leave, he
on
While
unpaid leave.
on
put
themselves
management
claims
he is
for which
any position
may bid on
orientation
SPD
admitted
If he
available.
becomes
qualified
employees
deceptive
script
one
within
position
a suitable
find
cannot
our
on
Based
misled.
in fact
leave,
employee
being put
year
testimony, we
their
review
own careful
*8
terminated.
will be
merely
example,
Suther, for
agree.
cannot
docu-
of the WISP
none
that
admitted
evidence
trial, Klumpe introduced
At
duty pro-
restricted
discuss
ments
duty program
restricted
showing that
them
make
not
does
that
fact
gram
injured
effect
have a severe
can
—a
that
conceded
also
He
deceptive.
testified
Estrada
Andres
employee.
permit
expressly
not
do
documents
a WISP
him to bid
permit
did
union rules
As
decision.
an arbitrator’s
from
appeal
over other
seniority
had
unless
position
however,
a
shown,
even
already
we
surprisingly,
Not
employees.
qualified
challenged on
be
can
binding arbitration
after
sought
the most
work
light-duty
unless
least
grounds,
narrow
certain
a
strenuous
for more
qualify
To
IBP.
Britt, an
Missy
did
Nor
stated.
otherwise
dis-
about
to lie
position, Estrada
287
nurse,
IBP
or Barbara Lingenfelter, IBP’s
ing the same legal standard used by the
safety manager, admit to knowing of or district court.
v. Stryker Corp., 284
Coffel
making any misrepresentations or
625,
(5th
F.3d
Cir.2002)
630
(citing Flowers
supervisors
their
at IBP encouraged
v. Reg’l
them
S.
Physician Servs., 247
229,
F.3d
to do so. At most Britt’s
(5th
testimony
Cir.2001)).
shows 235
“Although our review
that she never elaborated on
novo,
WISP’s
life-
de
... our standard of review with
payment provision
time
or on the restrict-
respect to jury
verdict is especially def
duty
ed
program, that not being
job.
her
erential.” Flowers,
(inter
a contrary conclusion. Id. CONCLUSION Under Federal Rule of Civil Procedure The judgment of the district court is 50, “judgment aas matter of law is proper AFFIRMED.12 after party has fully heard jury on a given issue, [if] there is no ELLISON, District Judge, dissenting: legally sufficient evidentiary basis for a IWhile concur with much of majori- reasonable jury to have found for that ty’s well-written opinion, I dissent on one party with respect to that issue.” Ford v. critical issue. I Specifically, believe the Cimarron Ins. 828, Co. (5th 230 F.3d 830 record does not support the district court’s Cir.2000) (internal quotations omitted) take-nothing judgment which predi- (quoting Foreman v. Babcock & Wilcox cated on the theory that no reasonable Co., 800, (5th 117 F.3d Cir.1997)). jury could have concluded that the act of entertaining a motion, Rule 50 the court securing Escamilla’s release would have must review all of the been a crime. record, and draw all reasonable inferences in favor of the nonmoving party. Ellis v. I. Legal Standard Judgment as a Eng’g, Inc., Weasler (5th 258 F.3d Matter Lawof Cir.2001), amended, (citing Reeves v. This Court properly reviews de novo the Sanderson Prods., Plumbing Inc., 530 district court’s ruling on a motion for judg 133, 150, U.S. 120 S.Ct. 147 L.Ed.2d ment as a matter of (“JMOL”), law (2000)). apply The court may not make 11. The only evidence we found argues also Klumpe's Sabine Pilot employee having admitted to misrepresenta preempted claim is Employee Retire- tions came from Klumpe’s Act, ment Security own testimony. Income punitive and that damages He or, testified that in meeting are unavailable in this case Suther alter- *9 natively, subject following incident, are to a Crow, statutory cap. Escamilla's Hav- James ing determined that supervisor, another there was no evidence told of that IBP deception, we need not points. reach would "f— these just him over we everyone like do Nor need we take up the district court’s else.” deter- (if mination deception that the any) would not have caused to execute the waiver.
288 aof grant court’s district the reverse evi weigh the or
credibility determinations jury the ver- reinstate would determinations, the JMOL “[c]redibility dence, as drawing evidence, dict.2 and the of the weighing the facts inferences legitimate of claim Pilot Sabine Klumpe bases judge.” aof functions, those not
jury Code, Penal Texas of the 32.46 section 2097 150-151, 120 S.Ct. at Reeves, 530 U.S. “a per- that part in relevant states which Inc., Lobby, Liberty Anderson (quoting if, intent an offense commits son 2505, 91 250-51, 106 242, S.Ct. 477 U.S. he, by decep- any person, harmor defraud reviewing Thus, in (1986)). 202 L.Ed.2d or execute sign another ... causes tion must whole, the court aas record the ... or affecting property document any favorable all disregard any person.” of interest pecuniary required not jury that the moving party Klumpe would find that Thus, in order (citing at 337 Ellis, F.3d to believe. had illegal act committed have 2097). 151, 120 S.Ct. Reeves, 530 U.S. release, facts pre- Escamilla’s sought sufficient have been must at trial sented Criteria Pilot The Sabine II. that such to find jury reasonable for a claim, Pilot Sabine to a application In decep- necessarily involved have act would of a matter court determines trial tion. makes issue provision whether law 1997, sec- May amended effective offense, while As a criminal violation its “decep- the definition adopts con tion 32.46 employee’s decides whether jury Code in Texas Penal contained Sa illegal act.” tion” “an been have would duct part: Hauck, 31.01, relevant which states Service, Inc. v. Pilot bine (Tex.1985); Pattern Texas S.W.2d (1) means: “Deception” Jury Charges Business, Em Consumer & - or words (A) confirming creating or ed.). (2000 ma- 107.3 ployment PJC or of law impression a false conduct dis- affirming the rests on opinion jority judg- affect likely to that is fact these the second reversal court’s trict transaction, ment another majority concedes Although the steps. believe actor does and that found reasonably have could true; [or] to be Es- getting for not fired Klumpe was impression false (B) failing to correct release,1 majority affirms camilla’s affect likely to that is or fact of law no there is finding that court’s of another judgment for a basis evidentiary sufficient legally previous- actor transaction, that the Es- seeking jury to find reasonable or by words or created ly “an ille- have been would confirmed release camilla’s conduct, actor that the disagree I tried. act” gal (emphasis true[.] believe now has JMOL of review standard added). I issue. pivotal on this met ver- jury's reinstate Although I would 2. that the majority concedes also punitive dict, the amount review I would pur- IBP’s reasonably decided to more reduce them possibly damages and Klumpe’s termination —the ported reason view of precedent. closely established pre- crewing guidelines of the removal —was unnecessary to feel it I majority's opinion, textual, put pressure on attempted to issue, damages punitive waiver, analyze further obtain Escamilla's n argu- preemption ERISA IBP’s to consider get Escamilla's motivated that IBP dissenting opinion. in this ment necessary. any means release *10 No evidence at trial supported a finding of Safety Department, and is not provided to deception under Texas Penal employees Code unless they request it. The 31.01(1)(B).3 § Under Texas Penal majority Code concludes that no inconsistencies 31.01(1)(A), § however, the jury could have exist between the orientation script, reasonably found SPD, would have and the legal WISP documents, and been guilty of deception had he tried to thus no deception could have occurred. obtain Escamilla’s waiver. Not only claims do I disagree that no inconsisten- requires statute exist, de- cies I but particularly affirmative disagree that ception on Klumpe’s part. The plain a jury reasonable could not have found the meaning statute, however, does not inconsistencies in the materials to be de- contain this requirement. face, On its ceptive such that if Klumpe remained si- merely statute requires “creating or con- lent or encouraged Escamilla to sign the firming by words or (emphasis actions.'” waiver, he would have similarly been de- added). Tex. 31.01(1)(A). § Penal Code ceptive. For a finding of deception po- thus —and The first alleged inconsistency concerns
tential criminal liability by seeking Es- — lifetime payments under WISP. The SPD camilla’s release Klumpe would have had states that “if a covered injury or illness confirm words or actions repre- you leaves unable to return to any work sentations made IBP in the orientation whatsoever, the program provides lifetime script and the Summary Plan Description payments.” The legal WISP document concerning the program, WISP and those states that lifetime payments will only be representations have must actually existed given if the injury fits one of six categories and been known by decep- enumerated in legal document, such as tive. total and permanent loss of sight in both III. IBP’s Deceptions eyes. For injuries other not so enumerat- ed, payment will not exceed 401 weeks.
As discussed the majority opinion, new IBP employees receive booklet con- While majority concludes that taining a summary of benefits, WISP language concerning being “unable to re- called the Summary Plan Description turn any work whatsoever” ais prereq- (“SPD”) at orientation. The script read by uisite that suggests a severe disability, the an IBP supervisor at that orientation six disability categories listed in the WISP states the SPD you just “tells about materials are not particu- exhaustive. everything you need to lar, know about all but one of the six categories cover [WISP], including your rights and respon- only physical injuries. The sixth category However, sibilities.” the WISP legal docu- does cover injuries “to skull resulting ment contains a longer and more detailed insanity incurable or imbecility,” but explanation of WISP benefits. The WISP there are a wide range of other work- legal kept document is in IBP’s Health and related Alnesses could person leave un- majority’s opinion correctly states making State, finding.’’ such a Plata v. possibly faced liability S.W.2d 304 (Tex.Crim.App.1996). While under the 31.01(1)(B) Texas Penal § Code such an instruction would have benefited deception definition of had Klumpe by in- providing an alternative basis accomplice structed on liability. Under Texas liability statute, criminal under the as dis- law, however, “the free to find the dispositive cussed above it is not issue guilty defendant accomplice as an unless the liability as accomplicity required is not court’s instructions authorize it to so and 31.01(1)(A). Tex. Penal Code include the essential of proof (1)(A). elements 31.01
290 and can exceptions of any mention whatsoever. any work —IBP to to return
able decisions.5 arbitration appeal does exam- for depression, clinical Debilitating “Re- injury the the of concerns deception result the The final might well ple, employees New Duty defi- suffered, Program.” would and it stricted that job, on the injured that, are they if told importantly, More covered. nitely not be re- “to the employee assign that will IBP the SPD that find jury could a reasonable with in accordance duty program stricted regard. in this deceptive by your doctor.” assigned restrictions the inconsistency con- alleged second deadlines The includes However, program the un- during of arbitration or- binding nature employees the cerns to the disclosed not employ- the orienta- to IBP’s once According example, For der WISP. ientation. improve- “maximum medical Program the of reaches terms “by the ee script, tion to days thirty has ment,” employee the the supervised to and as submitted meet will that plant job within the find Labor, IBP of Department States United treating by the imposed restrictions the deci- arbitrator’s the honor to bound is find cannot employee the If physician. that *12 testified that no one with an injury such as sentations to be corrected. Estrada and Escamilla’s would sign the waiver if he Glover gave anecdotal testimony concern- were aware of the misrepresentations ing the Restricted Duty Program, both him, made to and of the actual benefits relating their experiences that the pro- available under WISP and the restricted gram did not function as stated in the duty program. This evidence presented orientation script or the SPD. Glover also sufficient to support an in- testified that IBP appealed the arbitrator’s ference that Escamilla would not have decision in case, his something he did not signed a waiver if the benefits available believe was a possibility according to the under WISP and the restricted duty pro- materials he had received. Finally, Suther gram fully had been and accurately pre- admitted in his testimony that employees sented to him. were misled during orientation.7
Moreover, Klumpe presented evidence
IV. The Property Interests at
that,
Stake .
at trial
IBP did not correct the incon-
sistencies between the
pre-
information
An offense under section 32.46 is not
sented to new employees at orientation
complete
until
document that would af
and the actual benefits available to them fect property or a pecuniary interest
under WISP and the restricted duty pro-
executed.
State,
Goldstein v.
803 S.W.2d
gram. For example, IBP employee Missy 777, 789 (Tex.App.
1991,
'd)
pet. ref
— Dallas
Britt testified that she was the
person
first
(citing
State,
Mills v.
722
411,
S.W.2d
416
generally
who
would consult
with
in-
(Tex.Crim.App.1986)). The terms “prop
jured worker about signing the waiver.
erty” and “pecuniary interest” are
de
Britt also testified that she did not discuss
fined under
32.46,-
section
and therefore
any of the differences between actual ben-
are to be given
plain
their
and ordinary
.
provided
efits
and the orientation informa- meanings Goldstein,
to work at IBP after his injury, specifically as false if IBP was seeking to vacate arbitra- a result the time deadlines and placement tor's decision in the Glover which the limitations of IBP's duty program. restricted record reflects as true. experience Estrada’s under WISP and the re- Code See Penal Tex. successful. waiver
IBP, therefore his Sabine meets 31.01(1)(A). Klumpe irrespective “property,” affected that IBP showed only if he Pilot burden Further- lawsuit. any such outcome viola- criminal to commit him required outcome where more, in a situation showing job; a keep order tion in Escam- speculative just as lawsuit *13 that belief good-faith had a Klumpe that ante, a ex suit viewed injury personal illa’s constitute would conduct required the that even found has court appellate Texas not suffice.8 law will of criminal violation individu- an liability affects legal potential Corp., WL Enserch v. Williams con- justify toas so interest pecuniary al’s 2000). Jan. (Tex.App.-Dallas, at *3 document of a securing execution viction of holding facts stipulated court’s The Id. the Contrary to deception. by of devoid support is to this case sufficient in record therefore that “[t]he alone discrep- waiv- or executing the omissions those finding that that jury’s the of judgment the proper- affect likely Escamilla’s to affected were have ancies er would Court,” to this interest, required as before in the case Escamilla pecuniary ty and/or support to 32.46. sufficient of section the evidence a violation constitute Es- Klumpe, by that, if asked inference Jury’s the Supporting Evidence The waiver V. the signed have would camilla by made Verdict misrepresentations on reliance who person testimony of IBP.9 action cause Pilot a Sabine Because re- is document relevant signed unconsummated involve always will 82.46. section a violation prove to quired Escamilla what about testimony crime, any State, at 74. 681 S.W.2d Smith have he done, why would and have would who, on based person of another testimony sign him to it, Klumpe asked had done to competent is knowledge, personal his speculative. be inevitably would waiver sig- of mind of state testify about de- to intent Moreover, with the if done a con- support to sufficient nor, legally Klumpe any attempt deception, fraud case, instant In the Id. viction. Escamilla’s secure made have would have inferred reasonably could have sub- would waiver signature Es- knowledge personal had liability, wheth- to criminal jected injury, of mind after state camilla’s ultimately proved attempt or not er Q: gone to Chris you had if you believe Do standard Pilot Sabine 8. Because we sign the waiver asked him one, employer require did i.e. objective signed it? would have face ter- a crime commit employee to the mination, have. would Sure A: through running suggestion testimony its Klumpe's context In the opin- court's the district pleadings IBP’s necessitate does entirety, statement this tainted somehow Klumpe's claim is ion that would have Escamilla an inference loyalty his true motivation his because misrep- irrespective of waiver, signed the prosecution, or criminal fear stepson, not him, simply allegedly made resentations inference factual such Even if irrelevant. so. to do him stepfather asked his because However, jury's verdict consistent were light fa- most viewed in when Court, by the considered thus seem it does Klumpe’s vorable refusing to subjective motivation Klumpe’s having previous- indicate, misrepresentations not affect signature Escamilla's obtain others, simply ly made claim. Pilot Sabine silence— to maintain have would misrepresentations knowing —and exchange following upon form signed cites the itself stepfather. by his to do so asked being the record: Escamilla was Klumpe’s stepson. Klumpe la would have relinquished his right testified that no one with Escamilla’s inju- seek damages for future lost af- earnings ry would have signed the if waiver ter maximum medical improvement if he benefits actually available under WISP could not secure placement within the and the restricted duty program had been program’s time limitations. Escamilla had known to that person, Escamilla, and that not been informed of those time limita- having had the available benefits misrepre- tions, and did not understand how they him, sented to would have signed the waiv- might have affected the amount of his er if Klumpe had asked him to do so. future lost earnings. Accordingly, IBP’s Furthermore, the inconsistencies misrepresentations be- about the benefit actu- tween the orientation materials and actual ally available under the Restricted Duty plan benefits adduced by Klumpe are suffi- Program reasonably could be believed to *14 ciently material to support an inference of have a direct impact on Escamilla’s will- reliance. Although the availability life- ingness to sign the -waiver. time benefits for total permanent disability arguably would not have influenced Es- VI. The Roles Jurors and Judges camilla’s decision regarding the waiver due to the nature of injury,10 his In conclusion, whether arbi- the evidence presented at tration would have been if trial binding any does not meet the standard for a dispute over Escamilla’s benefits Rather, JMOL. jury had enough legal- WISP is arose an issue that cuts across all ly sufficient evidentiary support to reason- injuries. covered jury The reasonably ably find in Klumpe’s favor. Assessing could have inferred that an individual with credibility and making factual determina- an injury as serious as Escamilla’s would tions are uniquely within the province of have found this latter fact material to his the jury. jury The hears and sees wit- decision whether to accept WISP benefits. nesses and evidence first hand —a privilege addition, that is forever lost based on when trial Thus, Estrada’s ends. testimo- ny when the regarding his experience majority with writes that “the only Re- stricted Duty Program, we found of jury also IBP employee could have inferred having misrepresentations admitted to misrepresentation regarding that program came from Klumpe’s would (a have been own testimony”11 material to proposition Escamilla’s I reject), decision. The ma- it fails explain why jority opinion counters that Klumpe’s the Restricted testimony would not be sufficient Duty Program separate WISP, from the for the jury. jury can reasonably and that signing the waiver is not an decide believe, who to and who to disbe- agreement to participate in restricted lieve. If judges are willing to set aside duty. byBut signing waiver, Escamil- jury verdicts as readily as was done in this 10. For example, despite the severity of Estra- vided complete document, WISP it is injury, da's almost identical to the one suf- conceivable that experience Estrada's Escamilla, fered he did return to work. have lead question Escamilla to ability Further testimony by revealed, Estrada how- find work injury. after such an ever, that he had to eventually terminate his employment with IBP because of inability testified that meeting in his to find suitable work there following inju- following Suther injury, Escamilla’s James ry. Thus, although the availability of lifetime Crow, supervisor, another IBP told
benefits permanent for total disability argu- that IBP "f— just him over like we do ably would not have influenced Escamilla un- everyone else.” der the definition of qualifying injuries pro- civil rationale entire prac- At a attenuated. sharply system America, STATES UNITED longer be no can level, judges trial
tical Plaintiff-Appellee, jurors that —al- explaining credible a significant comes their service though families, and them, their cost personal SNOW, Defendant- Larry Gilbert they contribution co-workers—the their Appellant. indispensable. make is ill-suited peculiarly case is This 01-20129. No. place opinions their substitute judges Appeals, Court States United aside can leave verdict. We jurors’ Circuit. Fifth listened fact moment deliberated testimony and days of nine 4, 2002. Oct. dis- likewise can day. We more for one were jurors all fact obvious count Haden, Stern Bowen L. Julia Katherine wit- of the the demeanor judge able to Attys., Turner, Asst. U.S. Lee and James opportunity and then nesses Plaintiff-Appellee. Houston, TX, for key point reactions. their compare *15 Def., II, Pub. Dahlin, Fed. an em- E. Roland Whether fundamental. more even Timothy Wil- Ling and employee specific Margaret Christina of explanation ployer’s Defenders, Pub. Crooks, Fed. something Asst. deceptive liam is or benefits Defendant-Appellant. TX, Houston, and by men determined be should the communi- chosen are who women who occurred and conduct
inty which expe- diverse and relevant
likely have em- explanations receiving in
riences trying subsequently and benefits SU- ployment THE FROM REMAND ON words, other benefits. those to realize THE UNITED OF COURT PREME for which is one determination such a STATES Con- appropriate. quintessentially jury is inappro- uniquely group versely, any if and DAVIS, BENAVIDES Before determination, sure- such to make priate STEWART, Judges. Circuit enjoy who judges III federal Article it is ly luxury of unheard almost otherwise THE COURT: BY benefits employee and job tenure lifetime faith by the full are backed the United which many of Supreme Court States, States. United credit of the v. United States, in Snow by order — L.Ed.2d U.S.-, 122 S.Ct. only disturbed should verdict jury’s A writ for a petition appellant’s granted of JMOL requirements stringent when in judgment certiorari, vacated met decidedly not They are met. further us for it to remanded dis- respectfully I Accordingly, this case. v. Free light court’s consideration Ashcroft reverse sent, 234, 122 S.Ct. Coalition, 535 U.S. Speech verdict. and reinstate decision (2002). 1389, 152 L.Ed.2d remand- decisions prior our
Considering to us returned were two cases ing notes opinion majority sion.” the then thirty-day period, within job Federal the of power governing the twelve-month on a placed is employee right Act, retain parties Arbitration em- If the pay. without of absence leave that results award an arbitration appeal that twelve- job find a within cannot ployee authority or abuse of the arbitrator’s terminated. is employee period, month com- in Glover case bias, as was Program Duty Restricted Whole the of evidence anecdotal presented plaint WISP, nonetheless Klumpe part Team at trial. misrepresentation this concerning the trial evidence presented Greco, F.Supp.2d Scandia, Inc. demonstrated adequately program Nevertheless, IBP an (S.D.Ind.1998). full disclosure provide failure IBP’s Crow, testi- James employee, managerial evidence, combined This its terms. documents IBP in that nowhere fied inconsistencies, was discussed above the deci- appeal IBP can it state reasonably to enough clearly I Nor could do so. if it decides to sion oc- have deception would conclude of the my in review any reference find re- Escamilla’s sought curred Court.4 to this submitted documents given the information because lease the arbitra- an abuse Whether prog-am the WISP concerning employee’s in Glover’s authority existed mis- Duty Program tor’s the Restricted and Thus, mere- concerning Glover in order trial testimony deceptive. leading signature, provided Escamilla’s ly illustrated secure the benefits that, despite “confirm” had to to find sufficient about remaining silent program bound IBP is telling employees worked.6 really the program how decision—without arbitrator’s honor of statement kind This decision. arbitrator's the orientation included 4. These documents the list only adds to script orientation SPD, legal docu- the WISP script, deter- have used jury could of evidence ment. script were orientation mining SPD and script states fact, the orientation deceptive. process neutral appeal [to "because program af- how order illustrate attorney’s ser- 6.In simple, fairly arbitrator] injury, sustained employee who fected an you want unless usually not needed vice testimony Andres presented Klumpe Estrada, attorney would help of an one.” hire who suffered employee an IBP appealed an if certainly be needed almost