Dennis R. Locklin v. Texas Utilities Electric, Inc., D/B/A T.U. Electric Company

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS, AT AUSTIN NO. 3-91-304-CV DENNIS R. LOCKLIN, APPELLANT vs. TEXAS UTILITIES ELECTRIC, INC., d/b/a T.U. ELECTRIC COMPANY, APPELLEE FROM THE DISTRICT COURT OF BELL COUNTY, 169TH JUDICIAL DISTRICT NO. 125,783-C, HONORABLE STANTON B. PEMBERTON, JUDGE PRESIDING PER CURIAM This is an appeal from a summary judgment in a wrongful discharge case. We will affirm the judgment of the trial court. I.  THE SUMMARY JUDGMENT EVIDENCE A. Factual Background Appellant Dennis R. Locklin brought this action against his former employer Texas Utilities Electric, Inc. (TUEI). On September 3, 1987, Locklin was employed by TUEI as a lineman on a bucket crew supervised by Billy Luker. The crew was assigned the task of splicing a neutral and a primary power line. Locklin was assigned the task of making the connections. TUEI has a safety rule that specifies the procedure to be followed when making the connection. The rule provides, in pertinent part: [The worker] shall avoid placing himself in series with the load, when connecting transformers or jumpers on primary circuits. In these cases, his only protection is his rubber gloves, since the insulated basket offers no protection against his getting in series with the load. Approved hot sticks shall be used to make connections in these situations. Luker told Locklin not to use a hot stick (1) to make the connections. When Locklin attempted to perform the procedure without the hot stick, he placed himself in series with the electric load. TUEI fired Locklin for violating the safety rule and for insubordination based on his placing himself in series against Luker's instructions not to do so. B. Procedural Background In his original petition, Locklin alleged he was wrongfully discharged because: (1) his discharge was in violation of the employment agreement between him and TUEI, created by TUEI's policy manuals and statements and its course of conduct with him; (2) his discharge violated public policy because he was merely following his supervisor's orders when he violated the safety rule; (3) TUEI's negligence in hiring and retaining Luker as a supervisor over him proximately caused Locklin's discharge because TUEI knew or should have known of Luker's bias against him, and of his continual physical and verbal harassment; and (4) his discharge violated TUEI's implied duty of good faith and fair dealing toward him. 1. Motion for Summary Judgment on Wrongful Discharge Claim Based on Breach of Employment Agreement In its motion for summary judgment, TUEI submitted that no genuine issues of material fact existed and it was entitled to summary judgment as a matter of law on Locklin's cause of action for wrongful termination. TUEI alleged that it was entitled to judgment on the breach of contract ground because the claim was barred by the employment-at-will doctrine and the statute of frauds. Specifically, TUEI submitted that the summary-judgment evidence showed that: (1) Locklin was employed for an indefinite period of time and was presumed to be an employee at will; (2) when the relationship is one of employment at will, it may be terminated by either party for any reason or no reason; (3) TUEI's manuals and handbooks did not limit its right to terminate at will; (4) there was no express oral or written representation to Locklin that he would be terminated only "for cause"; and (5) TUEI could terminate Locklin at any time for any reason or no reason, and no cause of action would exist for wrongful termination in violation of an employment agreement. TUEI also submitted that: (1) there was no written employment agreement; (2) the contract Locklin alleged existed was incapable of being performed within one year; and (3) the contract was unenforceable because the statute of frauds provides that an agreement which is not to be performed within one year of its making is unenforceable unless in writing. 2. Motion for Summary Judgment on Wrongful Discharge Claim Based on Violation of Public Policy TUEI submitted that it was entitled to summary judgment on the portion of Locklin's cause of action based on a violation-of-public-policy ground because Locklin's claim that he was "following his supervisor's orders" when he was terminated for violating a safety rule does not come within the only recognized public-policy exception to the at-will-employment doctrine. 3. Motion for Summary Judgment on Wrongful Discharge Claim Based on Negligent Hiring and Breach of Implied Duty Good Faith & Fair Dealing, and Exemplary Damage Claim Regarding Locklin's claim of wrongful termination based on negligent hiring and breach of an implied duty of good faith and fair dealing, and his claim for exemplary damages, TUEI submitted it was entitled to summary judgment because: (1) Locklin's allegations that TUEI was negligent in hiring Luker, who was allegedly biased against him, and allegedly physically and verbally harassed him, failed to state a cause of action for wrongful termination; (2) Texas does not recognize an implied duty of good faith and fair dealing in an employer-employee relationship; and (3) Locklin had not stated a claim upon which exemplary damages could be awarded. TUEI supported its motion for summary judgment with excerpts from Locklin's deposition and answers to interrogatories; the affidavit of TUEI's district manager, W. E. Reeder; and the affidavit of its attorney. 4. Locklin's Response To The Motion for Summary Judgment Locklin filed a response to TUEI's motion for summary judgment, in which he argued for the creation of a public-policy exception to the at-will-employment doctrine where an employee is discharged solely for "accidentally getting himself in series with high voltage after being instructed by his employer not to follow safety procedures designed to prevent such occurrences." Locklin supported his motion with the affidavit of his attorney, with attached exhibits; excerpts from Locklin's deposition and attached exhibits; and excerpts from the depositions of Luker and Earl Zelmer. The trial court granted TUEI's motion for summary judgment without specifying the grounds, ordered that Locklin take nothing, and denied all relief not expressly granted. Locklin appeals from the trial court's judgment. II.  DISCUSSION AND AUTHORITIES A. Summary Judgment Standard of Review The question on appeal is not whether the summary judgment proof raises a fact issue, but whether the summary-judgment proof establishes as a matter of law that there is no genuine issue of material fact exists as to one or more of the essential elements of the plaintiff's cause of action. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970). The movant for summary judgment has the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. In deciding whether there is a disputed material-fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true. This Court must indulge every reasonable inference in favor of the nonmovant and resolve any doubts in his favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). B. Preservation of Error and Scope of Appellate Review 1. Stated Point of Error Waived Locklin made no general assignment that the trial court erred in granting the summary judgment. See Malooly Brothers Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970). In his sole point of error Locklin asserts the trial court erred in granting summary judgment for TUEI because an issue of material fact exists as to whether TUEI terminated him for refusing to obey a supervisor's command to break a safety rule. Locklin's argument in his brief does not address his stated point of error. The brief is dedicated exclusively to arguing for an extension of the public-policy exception to the employment-at-will doctrine to include cases in which an employee is terminated solely for accidentally placing himself in series with high voltage after being instructed by his employer not to follow safety procedures designed to prevent such occurrences. Merely making an unsupported allegation of error without argument or authority constitutes waiver of appellate review. Tex. R. App. Ann. 74(f) (Pamph. 1992). Nevertheless, we have examined the record and Locklin's stated point of error has no support in the record. 2. Courts of Appeal May Not Extend Exceptions To Employment-At-Will Doctrine Based on the argument in the brief, we construe Locklin's point of error as an attack that the trial court erred in failing to extend the public policy exception to the employment-at-will doctrine. See O'Neil v. Mack Trucks, Inc., 542 S.W.2d 112, 114 (Tex. 1976) (rule of liberal construction applies to points in appellant's brief; merits of error will be passed on in light of the statement and arguments). We will overrule the point of error. Under the facts in this cause, this Court is not free to extend the exception to the employment-at-will doctrine to include a case in which an employee is terminated solely for accidentally placing himself in series with high voltage after being instructed by his employer not to follow safety procedures designed to prevent such occurrences. Texas follows the doctrine of employment-at-will, under which employment for an indefinite term may be terminated at-will and without cause. Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483, 489 (Tex. 1991); East Line & R.R.R. Co. v. Scott, 10 S.W. 99, 102 (Tex. 1888). Currently, the only judicially created public-policy exception to the employment-at-will doctrine is for discharge based solely on the refusal to obey an order to perform an illegal act. See Sabine Pilot Service, Inc. v. Hauck, 687 S.W.2d 733, 735 (Tex. 1985); Johnson v. Del Mar Distributing Co., 776 S.W.2d 768, 771 (Tex. App. 1989, writ denied) (Sabine Pilot exception includes an employee who in good faith attempts to find out if the act is illegal); McClendon v. Ingersoll-Rand, 779 S.W.2d 733 (Tex. 1989), rev'd, 111 S.Ct. 478 (1990), vacated on remand, 807 S.W.2d 577 (Tex. 1991) (ERISA preempts cause of action for wrongful discharge grounded on public-policy exception to employment-at-will doctrine when employer terminates employee primarily to avoid paying benefits or contributing to employee pension plan). As a general rule, intermediate appellate courts are not free to create additional exceptions analogous to the very narrow exception created in Sabine Pilot. Jennings v. Minco Technology Labs, Inc., 765 S.W.2d 497, 500-02 (Tex. App. 1989, writ denied). Locklin does not come within the scope of Sabine Pilot or Del Mar Distrib. Co. Nor is this an appropriate case for endorsement of a cause of action pursuant to Winters v. Houston Chronicle Pub. Co., 795 S.W.2d 723, 725-26, n.1 (Tex. 1990) (J. Doggett, concurring) (intermediate courts may enforce a cause of action where employee suffers employer retaliation for exposing, by reporting, activities in the workplace that will have a probable adverse effect on the public). Finally, we are not aware of other public policy as expressed in the state and federal constitutions and statutes, judicial or administrative decisions, rules and regulations or other statements of public policy that would demonstrate that the 'wrongdoing' about which complaint is made contravenes substantial societal concerns. See Winters, 795 S.W.2d at 733. Under these facts, this court is not free to create an additional exception to the employment-at-will doctrine. Winters, 795 S.W.2d at 725-26; Minco, 765 S.W.2d at 500-01. 4. Conclusion For the reasons stated, we overrule Locklin's point of error. The judgment of the trial court is affirmed. [Before Justices Powers, Jones and Kidd] Affirmed Filed: April 15, 1992 [Do Not Publish] 1. A hot stick, also referred to as a mechanical jumper, is a piece of wire with clamps on either end, applied by hand, which allows a lineman to complete a circuit while bypassing the set of bells and air brake switch on which he is working.