BRUNNER v. AL ATTAR No. 01-89-00389-CV.
786 S.W.2d 784 (1990)
Janet BRUNNER, Appellant, v. Farouk AL ATTAR, Rima Al Attar, and Apollo Paint & Body, Appellees.
Court of Appeals of Texas, Houston (1st Dist.).
Rehearing Denied March 8, 1990.
Bruce V. Griffiths, Houston, for appellant.
Susan C. Stevenson, Diana V.H. Shelby, Houston, for appellees.
Before SAM BASS, DUNN and O'CONNOR, JJ.
SAM BASS, Justice.
Brunner appeals from a summary judgment for Farouk Al Attar, Rima Al Attar, and Apollo Paint & Body.
Farouk Al Attar and Rima Al Attar are husband and wife, and partners in a general partnership, known as Apollo Paint & Body. Brunner states that Farouk's actions are the basis of this suit, and that Rima and Apollo are vicariously liable. Brunner alleged that Farouk terminated her, because he feared that she would catch and spread the Acquired Immune Deficiency Syndrome (AIDS) to employees. Appellees urged that Brunner was terminated because of her refusal to work during the hours required, her request to be terminated, and her failure, inability and/or refusal to perform the work expected of her.
Brunner stated that she had neither contracted AIDS, nor been infected with the human immunodeficiency virus which causes AIDS.
Appellees moved for summary judgment, alleging that Brunner did not state a cause of action, and could not amend her pleadings to state a cause of action.
Brunner testified by deposition that she was terminated from Apollo Paint & Body because she was a volunteer with the AIDS Foundation. Brunner had told Farouk that
Rima told another supervisor not to let Farouk fire Brunner. In a later discussion, Farouk asked Brunner to reconsider, but she would not. Farouk then said that he would have to fire Brunner.
On February 24, 1989, the trial court granted appellees' motion for summary judgment as to the following claims: (i) wrongful termination, in violation of the public policy of the State of Texas; (ii) retaliatory discharge and violations of her right to free speech and right to freely assemble, under Article I §§ 8 and 27 of the Texas Constitution; and (iii) discrimination because of handicap, in violation of Tex.Rev.Civ.Stat.Ann. art. 5221k (Vernon 1987). The trial court ordered that Brunner's pleadings be stricken as to those claims, as well as her claim for damages. Brunner does not assert that her firing violated her right to free speech and assembly in this appeal.
In reviewing the granting of summary judgment, this Court must accept as true the non-movant's version of the evidence, and make every reasonable inference in favor of the non-movant. Sabine Pilot Service, Inc. v. Hauck, 687 S.W.2d 733, 734 (Tex.1985).
In her first point of error, Brunner asserts that this Court should not permit her to be terminated for performing volunteer work for the AIDS Foundation because her termination violates the public policy exception to the employment-at-will doctrine.
Brunner does not allege that her employment was governed by a contract, or that it was for a definite term. The general rule is that employment for an indefinite term may be terminated at will and without cause. Sabine Pilot Service, Inc. v. Hauck, 687 S.W.2d at 734. In Sabine Pilot, the Texas Supreme Court recognized a very narrow exception to the judicially-created employment-at-will doctrine. Id. at 735. "That narrow exception covers only the discharge of an employee for the sole reason that the employee refused to perform an illegal act." Id. The supreme court stated that where an employee sought to invoke the public policy exception, "it is the plaintiff's burden to prove by a preponderance of the evidence that his discharge was for no reason other than his refusal to perform an illegal act." Id. In McClendon v. Ingersoll-Rand Co., 779 S.W.2d 69, 71 (Tex.1989), the supreme court announced another judicially-created exception to the employment-at-will doctrine, which permits recovery of lost future wages, mental anguish, and punitive damages, where the "plaintiff proves that the principal reason for his termination was the employer's desire to avoid contributing to or paying benefits under the employee's pension fund."
Brunner alleges that she was fired because she refused to quit her volunteer work with the AIDS Foundation; however, she has not alleged that she was terminated for refusing to perform an illegal act, or because her employer wished to avoid paying benefits under her pension fund. Brunner has failed to allege sufficient facts to place her within these two exceptions to the employment-at-will doctrine. See Jennings v. Minco Technology Labs, Inc., 765 S.W.2d 497, 500-502 (Tex.App.—Austin 1989, writ denied) (court refused to create an exception to the doctrine on the grounds of public policy, to enable an employee to obtain declaratory and injunctive relief, restraining employer from administering random
We overrule point of error one.
In her second point of error, Brunner asserts that the trial court erred in holding that her termination was not discrimination "because of handicap" in violation of the Tex.Rev.Civ.Stat.Ann. art. 5221k (Vernon 1987), the version of the statute applicable to this case.
Section 5.01(1) of article 5221k of the Texas Revised Civil Statutes
Tex.Rev.Civ.Stat.Ann. art. 5221k, sec. 5.01(1) (Vernon 1987). The statute also explains the meaning of the phrase "because of handicap":
Tex.Rev.Civ.Stat.Ann. art. 5221k, sec. 1.04(b) (Vernon 1987)
TEX.REV.CIV.Stat.Ann. art. 5221k, sec. 2.01(7)(A) & (B) (Vernon 1987)
In Chevron Corp. v. Redmon, 745 S.W.2d 314, 316 (Tex.1987), the Texas Supreme Court held that a plaintiff seeking to recover under article 5221k must first establish
Because Brunner has not alleged that she was handicapped, we cannot hold that she has established that appellees discriminated against her "because of handicap."
We overrule point of error two.
The judgment is affirmed.
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