Mitchell v. John Wiesner, Inc.
Mitchell v. John Wiesner, Inc.
Opinion of the Court
OPINION
This is a summary judgment case. On February 17,1993, Vicki Mitchell, an employee of John Wiesner, Inc., filed a claim with the Industrial Accident Board alleging she suffered an on-the-job-injury on February 15, 1993.
Weisner filed a motion for summary judgment raising the after-acquired evidence doctrine and relying upon Jordan v. Johnson Controls, 881 S.W.2d 363 (Tex.App. — Dallas 1994, writ denied).
Mitchell filed a response to the motion for summary judgment, with an affidavit from Mitchell, objecting to the deposition evidence because the deposition was not on file and
Wiesner filed an amended motion for summary judgment which was identical to the original motion except it relied upon the affidavit of Angela McCreery Bacon. Bacon’s affidavit stated she was the former billing clerk of Wiesner during the period in question, she knew the policies and rules of Wies-ner, Mitchell was employed on a standard 90-day probationary period, Mitchell stated in her employment application that she had a high school diploma, the position Mitchell was applying for required a high school diploma, Mitchell would not have been hired if her application had been completed accurately and it was grounds for discharge to submit a falsified application. The trial court granted the amended motion for summary judgment.
Mitchell brings a single point of error: “The trial court erred in granting appellee’s motion for summary judgment.”
Tex.Rev.Civ.Stat.Ann. art. 8307c has been referred to as the “Anti-Retaliation Law”
REVERSED AND REMANDED.
. The Texas Worker’s Compensation Appeals Panel found in favor of Mitchell. The workers' compensation carrier filed suit and the district court granted the carrier an instructed verdict. This court, in an unpublished opinion, reversed and remanded for a new trial. Mitchell v. Service Lloyds Ins. Co., No. 09-94-382 CV (Tex. App. — Beaumont January 25, 1996, application for writ pending).
. Now Tex.Lab.Code Ann. § 451.001(1) (Vernon Pamph. 1996).
. In Jordan, the Dallas Court of Appeals adopted the after-acquired evidence doctrine in article 8307c cases.
. The grounds for termination were absenteeism, confrontations with co-workers and substandard work habits.
. See Malooly Brothers, Inc. v. Napier, 461 S.W.2d 119 (Tex. 1970).
. City of LaPorte v. Barfield, 898 S.W.2d 288, 293 (Tex. 1995).
. One of our sister courts has declined to follow a plurality opinion of the Court of Criminal Appeals. See Hatcher v. State, 916 S.W.2d 643 (Tex.App. — Texarkana 1996, n.w.h.).
Concurring in Part
dissenting and concurring.
I respectfully dissent to this Court’s refusal to adopt the after-acquired evidence defense as same relates to Anti-Retaliation Law claims.
Our majority agrees with the dissenting opinion in Jordan v. Johnson Controls, Inc., 881 S.W.2d 363, 371 (Tex.App. — Dallas 1994, writ denied), overlooking or failing to recognize numerous authorities, both State and Federal, supportive of the Jordan court’s adoption of the after-acquired evidence doctrine in article 8307c cases.
Something is sadly wrong with protecting job applicants who lie in order to obtain
Justice Chapman’s statement that “It could have investigated him ...” deserves some retort. How does an employer adequately “investigate” a job applicant even with effective consent of the applicant? How can a potential employer adequately check the possible criminal history of an applicant without running afoul of restrictive access to law enforcement data? A trip to the local courthouse for open record search may not reveal the applicant was convicted in forty-nine other states.
I believe Jordan to be good and sound law. Jordan follows Swanson v. American Mfg. Co., 511 S.W.2d 561 (Tex.Civ.App. — Fort Worth 1974, writ ref'd n.r.e.) which is also sound law.
Now, to my reasons for agreeing that remand is proper here. Appellant Mitchell’s employment application stated Mitchell had a high school diploma when, in fact, Mitchell had a high school equivalency diploma, to wit, a G.E.D. With very little effort, appellee, at the time of employment and as a condition of employment, could have requested a copy of appellant’s high school credentials. For whatever reason, appellee was not concerned enough, at the time of employment, to attempt verification. Appellee, now, after the fact of employment and after the fact of job-related injury, attempts to capitalize on a technical misrepresentation.
Unfortunately, it is difficult, if not judicially impossible, to design a hard, fast and static rule relating after-acquired evidence to justifiable discharge. It appears the ends of justice through appropriate due process require a ease by case appraisal, leaving the general rule announced by Jordan in tact.
In weighing these cases, courts should be mindful of McKennon v. Nashville Banner Pub. Co., 513 U.S.-, 115 S.Ct. 879, 130 L.Ed.2d 852 (1995), which requires an employer, seeking to rely on such after-acquired evidence, to first establish that the wrongdoing was of such severity that the employee, in fact, would have been terminated on those grounds alone if the employer had known of such wrongdoing at the time of discharge.
Thus, my dissent and my concurrence.
. See, e.g., Milligan-Jensen v. Michigan Tech. Univ., 975 F.2d 302, 304-305 (6th Cir. 1992), cert. dism'd, 509 U.S. 943, 114 S.Ct. 22, 125 L.Ed.2d 773 (1993); Washington v. Lake County, Ill, 969
. Our majority places heavy reliance upon the dissenting opinions in Jordan. It should be noted that the two dissenting Justices in Jordan were not on the panel assigned to that case. The three assigned Justices were unified in the majority opinion. Also worthy of note, our Texas Supreme Court denied writ in Jordan.
Reference
- Full Case Name
- Vicki MITCHELL, Appellant, v. JOHN WIESNER, INC., Appellee
- Cited By
- 27 cases
- Status
- Published