Opinion
Civil Action No. SA-06-CA-0497-XR.
December 5, 2006
ORDER
On this date, the Court considered Defendant's motion for summary judgment (docket no. 2), Defendant's motion to strike amended complaint (docket no. 22), Defendant's motion to dismiss (docket no. 23), and Defendant's motion to strike response (docket no. 32).
Background
Plaintiff Gayle Yeoman filed this lawsuit in state court on March 30, 2006. In her Original Petition she stated that she was discharged from her employment on or about March 30, 2004, because her husband made a sexual harassment complaint. Despite this statement, she only alleged a single cause of action for conversion ("Defendant fired Plaintiff without paying her earned and owed compensation. . . ."). On June 2, 2006, she filed a first amended petition in state court. In that pleading she added a "wrongful termination" claim that her firing because her husband made a sex harassment complaint violated Texas law and "smacks squarely in the face against public policy."
Defendant Blackmon Mooring Steamatic of San Antonio ("BMS") removed this case on June 8, 2006 on the basis of federal question jurisdiction. Defendant's Notice of Removal acknowledged that Plaintiff's initial pleading broadly alleged a single claim of conversion, alleging that she was terminated without having been paid thousands of dollars in unpaid wages. However, Defendant asserted that Plaintiff's discovery responses "clarify that her claims seek unpaid overtime compensation from alleged misclassification as an exempt employee and arise under federal law, specifically the Fair Labor Standards Act." On September 25, 2006, the Court found that removal was proper and that it has jurisdiction over this case.
Defendant seeks summary judgment arguing the following: (1) Plaintiff's conversion claim fails as a matter of law; (2) any claim for sexual harassment or retaliation fails because Plaintiff never filed any charge of discrimination with either the Texas Commission on Human Rights or the Equal Employment Opportunity Commission; and (3) any claim under the Fair Labor Standards Act is barred by limitations.
After the filing of the Defendant's motion for summary judgment, Plaintiff filed a second amended petition. In that pleading, Plaintiff continues to assert a claim for conversion ("defendant fired Plaintiff without paying her earned and owed compensation"). In addition, Plaintiff asserts a claim for "wrongful termination." Plaintiff states: "The act of Defendant firing Plaintiff because Mark Yeoman [her husband] made a sexual harassment complaint clearly violates the laws of Texas and smacks squarely in the face against public policy." In the factual background paragraph she states that she was "also fired for not going along with the Defendant's illegal practices. She was asked to do something illegal, she refused and was then fired." In this amended complaint Plaintiff does not allege any cause of action either under the Texas Commission on Human Rights Act nor Title VII.
Conversion Claim
To establish a cause of action for conversion under Texas law, a plaintiff must prove: (1) the plaintiff owned or had possession of the property or entitlement to possession, (2) the defendant unlawfully and without authorization assumed and exercised control over the property to the exclusion of, or inconsistent with, the plaintiff's rights as an owner, (3) the plaintiff demanded return of the property, and (4) the defendant refused to return the property. Burns v. Rochon, 190 S.W.3d 263 (Tex.App. — Houston [1st Dist.] 2006, no pet.).
This dispute is about wage payments that are allegedly owed. This is not a situation in which the Defendant has exercised an unauthorized act of dominion over property in which Plaintiff held legal or equitable title. See O'Toole v. Philips Electronics N. Am. Corp., 2006 WL 3019698 (D.N.J. 2006) (In FLSA case, judgment as a matter of law granted to Defendant as to Plaintiff's conversion claim). In this case to prove the plaintiff owned the property (her wages), Plaintiff must establish that the Defendant violated the Fair Labor Standards Act. Plaintiff fails to raise a fact issue regarding whether any FLSA violation occurred. Accordingly, Plaintiff fails to establish all elements of any FLSA claim or conversion claim and summary judgment is proper.
Wrongful Termination Claim
Plaintiff's amended petition is vague regarding this claim. All parties appear to agree that a Sabine Pilot claim is being asserted.
The Fifth Circuit has recently addressed the elements of a Sabine Pilot case. It stated, in part, as follows:
Texas is an employment-at-will state. The Texas Supreme Court carved a "narrow" exception to the employment-at-will doctrine in Sabine Pilot v. Hauck. There, the Texas Supreme Court held that a terminated employee can recover damages against the former employer if the terminated employee can show that the "sole cause" of her termination was her refusal to perform an illegal act. However, "An employer who discharges an employee both for refusing to perform an illegal act and for a legitimate reason or reasons cannot be liable for wrongful discharge."Fitch v. Reliant Pharmaceuticals, LLC, 2006 WL 2167639 (5th Cir. 2006) (affirming summary judgment for employer).
Further, it should be noted that under Sabine Pilot, an employee may sue for wrongful termination if the sole reason for the termination was that the employee refused to perform an illegal act which would subject the employee to criminal liability. 687 S.W.2d 733, 735 (Tex. 1985); see also Winters v. Houston Chronicle Publg. Co., 795 S.W.2d 723, 724 (Tex. 1990).
In its motion to dismiss, Defendant argues that Plaintiff has complained in her amended petition that she was fired for two reasons. Plaintiff states: "The act of Defendant firing Plaintiff because Mark Yeoman [her husband] made a sexual harassment complaint clearly violates the laws of Texas and smacks squarely in the face against public policy." In the factual background paragraph she states that she was "also fired for not going along with the Defendant's illegal practices. She was asked to do something illegal, she refused and was then fired." In addition, Defendant has submitted Plaintiff's answers to interrogatory no. 2 wherein Plaintiff states: "I feel that my termination from BMS was solely for the reason that my husband Mark Yeoman filed a sexual harassment complaint with his supervisor." See Docket no. 29. Plaintiff responds in an affidavit as follows: "After some investigation both on my own, and through counsel I have determined that I was fired for not going along with BMS' illegal and fraudulent practices, which seems to be a common theme for BMS. There are too many illegal practices committed by BMS to mention in this affidavit, but example is the time I was asked by Brock Myers to add an invoice from Hill Country Cleaners in the Havana job, not changing the current line item in the estimate and to complete the line item (take in the revenue). The difference of the line item was . . . $239.34 overcharged to the customer. . . ."
The Fifth Circuit, other federal district courts, and Texas courts have refused to extend Sabine Pilot claims. Under Sabine Pilot an employee may sue for wrongful termination if the sole reason for the termination was that the employee refused to perform an illegal act which would subject the employee to criminal liability. In interpreting Sabine Pilot the courts have refused to extend its protection to plaintiffs who did not refuse to perform an illegal act. See White v. FCI USA, Inc., 319 F.3d 672, 677 (5th Cir. 2003) (granting summary judgment when evidence showed plaintiff did not refuse to commit the illegal acts; "FCI submitted evidence, in the form of numerous falsified NAFTA Certificates of Origin bearing White's signature, that White did not refuse to commit the unlawful acts."); Boyce v. Bank of Am. Technology Operations, Inc., 2004 WL 2545015 (N.D. Tex. 2004) ("Further, even assuming the actions constituted a theft, Boyce never refused to participate. She ate the lunch and raised no objection at the time, and, although she inquired about reimbursing the Bank, there is no evidence Boyce ever did so. . . . Because Boyce fails to make a prima facie case under Sabine Pilot, the Court GRANTS the Bank's Motion on Boyce's Sabine Pilot claim regarding the lunch at Dakota's."); Roberson v. Corp. For Economic Development Of Harris County, Inc., 2004 WL 2366937 (Tex.App.-Houston [1 Dist.] 2004, no pet.) ("Based on Roberson's own testimony, she raises no genuine issue of material fact regarding whether the CEDHC asked her to commit an illegal act."); Dyson v. Amerigroup Texas, Inc., 2003 WL 22682278 (Tex.App.-Houston [1 Dist.] 2003, no pet.) ("If mere delivery of the paycheck to a department manager was the "illegal act" to be performed, Dyson did not refuse to do it. She delivered the Johnson paycheck to Duncan, as instructed by Ellington.").
Because Defendant's motion to dismiss relies upon material outside the pleadings, the Court has converted the motion into a motion for summary judgment. Plaintiff has failed to raise an issue of material fact with regard to her Sabine Pilot claim. Specifically, Plaintiff has failed to raise a fact issue as to whether she was discharged for refusing to perform an illegal act which would subject her to criminal liability. Accordingly, summary judgment is granted in favor of the Defendant as to this claim.
See docket no. 31.
Defendant also raised a statute of limitations argument asserting that a Sabine Pilot claim is subject to a two-year limitations period. It argues that Plaintiff was discharged March 30, 2004, but that a Sabine Pilot claim was not asserted until the filing of the second amended petition on October 5, 2006. This theory is misplaced, however, because the Sabine Pilot claim for limitations purposes "relates back" to the filing of the original petition of March 30, 2006. See Fed.R.Civ.P. 15(c)(2). See also Moore v. Baylor Health Care System, 2004 WL 884436 (N.D. Tex. 2004).
Conclusion
Defendant's motion for summary judgment (docket no. 2) is GRANTED, in part, as to Plaintiff's conversion claim and any FLSA claim. The Court finds that Plaintiff has not alleged any TCHR or Title VII claims in her amended petition and therefore such claims have been waived. Defendant's motion to strike amended complaint (docket no. 22) is DENIED. Defendant's motion to dismiss (docket no. 23) has been converted into a motion for summary judgment and accordingly summary judgment is GRANTED as to Plaintiff's Sabine Pilot claim. Defendant's motion to strike response (docket no. 32) is dismissed as moot.Inasmuch as this Order disposes of all claims in this case, the Clerk is directed to enter a judgment that Plaintiff take nothing and that Defendant recover its costs.
It is so ORDERED.