Rehearing and Rehearing En Banc Denied February 28, 1992.
EMILIO M. GARZA, Circuit Judge:
Appealing the district court's grant of summary judgment in favor of Sears on statute of limitations grounds, Willie L. Thurman, former Sears employee, contends that a fact issue exists as to the actual date of his termination from employment. Finding that Thurman failed to present summary judgment evidence to create a genuine issue of material fact, we affirm.
Willie L. Thurman began his employment with Sears in November 1977. He worked at Sears' Dallas Merchandise Distribution Center (DMDC) as a manual laborer — both as a "receiver" where he unloaded merchandise from a truck, and as a "merchandise handler" where he moved returned goods for further processing.
The evidence indicates that, beginning in 1985, Thurman suffered a series of job-related injuries. Thurman claims that after each of these injuries, Sears placed him on leave of absence and reinstated him when he demonstrated that he was again able to perform his job duties. In March 1986, Thurman sustained the injury about which he now complains. Following this injury, Sears placed Thurman on a medical leave of absence, and Thurman filed a claim for workers' compensation. Thurman asserts that he was ready to go back to work at Sears in June 1986. Because of restrictions imposed by his doctor, however, Thurman was unable to perform the duties of a heavy merchandise handler and, therefore, Sears assigned him to a job where he swept floors and performed other light duties.
In 1987, Sears began a reorganization of the DMDC workforce and, in April 1987, as part of this reorganization, Sears asked Thurman to voluntarily terminate his employment. Thurman declined and continued as a light merchandise handler until May 1987, when he was informed that his light duty job was eliminated.
Thurman's last day at Sears was May 18, 1987. The next day, Thurman filed a claim for unemployment benefits with the Texas Employment Commission. A few weeks later, on June 5, Thurman executed a release and waiver. On that same date, Thurman signed a document acknowledging that he was placed on leave of absence and that he received a lump-sum payment in consideration for signing these documents.
On July 17, 1989, Thurman brought suit against Sears in Texas state court, asserting a cause of action under article 8307c of the Texas Revised Civil Statutes. See Tex. Rev.Civ.Stat.Ann. art. 8307c, § 1 (West Supp.1991). Thurman alleged that:
Record on Appeal at 7, Willie L. Thurman v. Sears, Roebuck & Co., No. 91-1026 (5th Cir. filed Jan. 23, 1991) (Plaintiff's Original Petition) ["Record on Appeal"].
Sears timely answered the state court lawsuit, raising the statute of limitations as an affirmative defense and, subsequently, removed the case to federal court. Sears filed its initial Motion to Dismiss and Alternative Motion for Summary Judgment, urging three grounds for dismissal of Thurman's lawsuit: (i) Thurman's claim was barred by limitations; (ii) Thurman released all claims against Sears relative to the termination of his employment; and (iii) Thurman's termination was not in retaliation for the filing of the workers' compensation claim.
Because this case is an appeal from summary judgment, we review the record de novo. See Guthrie v. Tifco Industries, 941 F.2d 374, 376 (5th Cir.1991). Summary judgment is proper if the movant demonstrates the absence of genuine issues of material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The movant accomplishes this by identifying portions of the record which reveal that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Anderson, 477 U.S. at 250, 106 S.Ct. at 2511. Upon such a showing, the burden is then shifted to the nonmovant, who "must come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (emphasis in original), quoting Fed.R.Civ.P. 56(e). We examine the affidavits, pleadings, depositions and answers to interrogatories that were before the trial court to determine whether there is an absence of any genuine issues of material fact. See Randolph v. Laeisz, 896 F.2d 964, 969 (5th Cir.1990). When "the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'" Matsushita, 475 U.S. at 586, 106 S.Ct. at 1356 (citation omitted).
Thurman appeals the summary judgment in Sears' favor, contending: (a) that a fact issue exists as to the actual date of his termination from employment; (b) that, in the alternative, Sears should be equitably estopped from asserting that the limitations period began before he sought reinstatement in December 1987; and (c) that, if this court finds Thurman was terminated in May 1987, then Sears' refusal to rehire him constitutes "discrimination in any other manner."
Article 8307c of the Texas Revised Civil Statutes is one of Texas' statutory exceptions to the common-law doctrine of employment-at-will. See Winters v. Houston Chronicle Pub. Co., 795 S.W.2d 723, 724 n. 1 (Tex.1990); see also Azar Nut Co. v. Caille, 734 S.W.2d 667, 669 (Tex.1987) (Spears, J., concurring and dissenting). The statute provides:
Tex.Rev.Civ.Stat.Ann. art. 8307c, § 1 (West Supp.1991). An aggrieved employee who wishes to file suit under this statute has two years within which to institute litigation after her cause of action accrues. See Luna v. Frito-Lay, 726 S.W.2d 624, 625 (Tex.App. — Amarillo 1987, no writ); see also Smith v. Coffee's Shop for Boys and Men, 536 S.W.2d 83, 84 (Tex.Civ.App. — Amarillo 1976, no writ). Under article
In Smith v. Coffee's Shop for Boys and Men, the court of appeals found Smith's action under article 8307c barred by limitations.
In 1987, in Luna v. Frito-Lay, the court of appeals addressed another appeal involving a lawsuit under article 8307c.
Thurman argues that the facts of Luna are "virtually analogous" to the instant case and suggests that the court found that Luna's cause of action accrued "when the employee was denied reinstatement" and, therefore, Thurman's cause of action should be deemed to have accrued when Sears denied Thurman's December request for reinstatement. While we find the facts of Luna to be similar to those in this case, we believe that Thurman misconstrues the true import of Luna. In Luna, the court did not find the mere denial of Luna's request for reinstatement as the
Although we sit as an Erie court, we follow Luna's suggestion and examine federal case law to determine the accrual date for an action under article 8307c. Thurman also suggests we should follow Luna in that regard, citing Naton v. Bank of Cal., 649 F.2d 691 (9th Cir.1981); Bonham v. Dresser Indus., 569 F.2d 187 (3d Cir.1977) cert. denied, 439 U.S. 821, 99 S.Ct. 87, 58 L.Ed.2d 113 (1978), and argues that an employer's acts or words must "clearly notify" or give "unequivocal notice" to the employee that he is discharged in order for that employee to be informed of the termination and in order for the limitations period to begin under article 8307c.
In Bonham, the Third Circuit addressed an appeal under the ADEA where the plaintiff received notice of his termination and stopped working on October 31 yet continued to receive certain benefits until December 31. The court, examining the date of plaintiff's termination for purposes of determining whether plaintiff filed a charge with the Secretary of Labor within the federal 180-day period, held that "where unequivocal notice of termination and the employee's last day of work coincide, then the alleged unlawful act will be deemed to have occurred on that date, not-withstanding the employee's continued receipt of certain employee benefits such as ... extended insurance coverage." Bonham, 569 F.2d at 191, citing Payne v. Crane Co., 560 F.2d 198, 199 (5th Cir.1977) (per curiam) (discharge occurs when employer shows, by acts or words, clear intention to dispense with employee's services) (other citations omitted). The Bonham court also expressly disapproved of any rule which focused on an employer's official termination date, reasoning:
Id. at 191-92.
Looking to Bonham, the court in Naton v. Bank of Cal., 649 F.2d 691 (9th Cir. 1981), enunciated a rule which isolated the accrual date of a cause of action under the ADEA. In Naton, the plaintiff was notified of his termination and stopped working for his employer on January 17. Naton, however, was officially terminated for administrative purposes on May 2, which was the "effective termination" date entered on his employer's separation report and the date Naton stopped drawing separation pay. In determining the accrual date of his cause of action, the Ninth Circuit held that "when unequivocal notice of termination and the last day of work coincide, the alleged unlawful practice occurs on that date." Naton, 649 F.2d at 695.
We find the Bonham test — "where unequivocal notice of termination and the employee's last day of work coincide, then the alleged unlawful act will be deemed to have occurred on that date" — will serve to eliminate ambiguities as to the commencement date of the limitations period and should be utilized in determining when facts exist authorizing a claimant to seek judicial relief for wrongful termination under article 8307c. Because federal law in this regard is consistent with state law, we hold that the limitations period for a suit for wrongful termination under article 8307c will commence when the employee receives unequivocal notice of his termination or when a reasonable person would know of the termination. See Bonham v. Dresser Indus., 569 F.2d 187, 192 (3d Cir.1977) cert. denied, 439 U.S. 821, 99 S.Ct. 87, 58 L.Ed.2d 113 (1978) (test is not entirely subjective and limitations period begins when employee knows or a reasonable person should know that employer has made final decision to terminate him and employee renders no further services).
Applying this test to the case before us, we must determine the date on which Thurman received unequivocal notice of his termination or when a reasonable person would have known that he was terminated. Id.
Thurman argues that he timely filed suit within the two-year limitations period because he was not actually discharged from Sears until December 1987 — the time when Sears refused to reinstate him after what Thurman regarded a leave of absence.
Sears contends that Thurman's claim is barred by the two-year statute of limitations because Thurman knew he was terminated from his employment with Sears on May 18, 1987 when Thurman's job was eliminated pursuant to a reduction in force, or, at the latest, on June 5 — the date on which Thurman executed a full release and waiver of claims relative to the termination of his employment with Sears. Sears contends that Thurman's knowledge of his termination on May 18 is well-supported by the evidence in the record, including the following: (i) Thurman ceased working at Sears on May 18; (ii) testimony of Gwen Chandler, Sears Personnel Administrator, that she informed Thurman of his termination from Sears;
Thurman forcefully argues that because a leave of absence, standing alone, does not sever the employment relationship, it will not start the statute of limitations running on a claim of discriminatory discharge, and therefore, his leave of absence commencing on May 18, 1987 should not be equated to a termination of his employment. We agree. Texas law does not regard a leave of absence as a complete separation from employment. See Chenault v. Otis Eng'g Corp., 423 S.W.2d 377, 383 (Tex.Civ.App. — Corpus Christi 1967, writ ref'd n.r.e.) (citations omitted). Rather, under Texas law, a leave of absence "connotes a continuity of the employment status, during which time performance of the duties of his work by the employee and remuneration by employer and other fringe benefits may be suspended." Id. Therefore, we do not interpret Thurman's "leave of absence,"
Thurman contends, in the alternative, that the statute of limitations should be equitably tolled until the date on which Sears informed Thurman that he was discharged,
Finally, Thurman argues that Sears' failure to reinstate him constitutes "discrimination in any other manner" and urges this court to find Sears' failure to reinstate him constitutes an independent violation of article 8307c.
Accordingly, we AFFIRM.
Record on Appeal at 606 (Memorandum Opinion and Order).
Appellee's Record Excerpts at tab 10, Willie L. Thurman v. Sears, Roebuck & Co., No. 91-1026 (5th Cir. filed April 1, 1991) (Supplemental Affidavit of Gwen Chandler) ["Appellee's Record Excerpts"]; Appellee's Record Excerpts at tab 7 (Affidavit of Gwen Chandler).
Q: On May 18th, you no longer had any job duties at Sears; correct?
* * * * * *
Q: Who was it that told you that as of May 18, 1987 you were not employed or you didn't have a job at Sears?
A: Susan Blanchard. Appellee's Record Excerpts at tab 11 (Deposition of Willie L. Thurman).
Appellant's Record Excerpts at tab 19 (Notice to Employer of Claim for Unemployment Insurance). Thurman, however, argues this statement is inconclusive for two reasons: (i) being off payroll is not synonymous with a "discharge" and (ii) a leave of absence is consistent with "being off the payroll."
Q: On May 18th, you no longer had any job duties at Sears; correct?
Q: Who was it that told you that as of May 18, 1987, you were not employed or you didn't have a job at Sears?
A: Susan Blanchard.