Opinion
Civil Action No. 3:99-CV-0538-D
March 11, 2002
MEMORANDUM OPINION AND ORDER
Plaintiff Olen D. Story ("Story") sues defendants Kone, Inc. ("Kone") and Ronald Smythe ("Smythe") seeking to recover on claims arising from an on-the-job injury to his ankle and the termination of his employment. Kone and Smythe move for summary judgment, contending that his unsafe workplace claim is barred as a matter of law under the exclusive remedy provision of the Texas Workers' Compensation Act ("TWCA") and that his retaliatory discharge claim under the Occupational Safety and Health Act ("OSHA") fails as a matter of law because there is no private right of action. For the reasons that follow, the court grants the motion.
Kone is formerly known as Montgomery Kone, Inc., and is so named in the case caption.
Defendants also contend that Smythe cannot be held liable individually because inter alia he had nothing to do with Story's injury. See Ds. Br. at 9-10 n. 10. The court need not consider this ground of their motion.
I
Story contends he suffered a severe injury to his right ankle when he stepped into a concealed hole covered with black polyethylene sheeting at a Kone job site. He maintains that he was injured because the Kone job foreman, John Wagoner ("Wagoner"), negligently failed to inspect the premises for hazards that were inherent in the locations where this protective material is used. Story alleges as his first claim that Kone is liable based on its intentional, willful, and malicious refusal to provide a reasonably safe place for its employees to work, in violation of its common law duty and federal safety and health statutes and regulations. As his second cause of action, Story asserts that Kone terminated him from his duties as a constructor/mechanic based ostensibly on insubordination, when in fact it discharged him in violation of § 11(c)(1) of OSHA, 29 U.S.C. § 660(c)(1), because he exercised his rights and for legally refusing to perform a duty.
Story also asserts other claims in his February 25, 2002 amended and/or supplemental complaint, but he does not request that they be adjudicated in this forum or lawsuit. In their motion for summary judgment, defendants maintain that "Story has dismissed his remaining claims," Ds. Br. at 9, and Story does not contest the assertion in his response. Instead, as do defendants, he treats the remaining claims in the case as the two that are the subject of defendants' motion and that the court addresses today, see P. Resp. at 1-2 (addressing unsafe workplace claim and retaliatory discharge under OSHA).
II
Before turning to the merits, the court must address a procedural matter. Although Story has filed a response to defendants' motion for summary judgment, he separately moves for an extension of time to respond, and he asserts in his summary judgment response that he has requested the court to modify the scheduling order and for a continuance so that he can obtain needed discovery. Defendants do not agree with the reasoning on which Story relies in his motion to request an extension. Because Story is proceeding pro se, however, they do not object to a two-week extension (two weeks from the date of their March 20, 2002 response to Story's motion would have been April 3, 2002).Fed.R.Civ.P. 56(f) authorizes a continuance of a nonmovant's obligation to respond to a motion for summary judgment "[s]hould it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition." The Rule is an essential ingredient of the federal summary judgment scheme and provides a mechanism for dealing with the problem of premature summary judgment motions. Owens v. Estate of Erwin, 968 F. Supp. 320, 322 (N.D. Tex. 1997) (Fitzwater, J.). The continuance authorized by Rule 56(f) is a safe harbor built into the rules so that summary judgment is not granted prematurely. Union City Barge Line Inc. v. Union Carbide Corp., 823 F.2d 129, 136 (5th Cir. 1987). To comply with the Rule, the party opposing summary judgment must file the specified non-evidentiary affidavit, explaining why he cannot oppose the summary judgment motion on the merits. Id. The party may not rely on vague assertions that additional discovery will produce needed, but unspecified, facts, id, but must instead identify a genuine issue of material fact that justifies the continuance pending further discovery, see Woods v. Federal Home Loan Bank Board, 826 F.2d 1400, 1415 (5th Cir. 1987). A party seeking a continuance of a motion for summary judgment must demonstrate why he needs additional discovery and how the additional discovery will create a genuine issue of material fact. Krim v. BancTexas Group, Inc., 989 F.2d 1435, 1442 (5th Cir. 1993). He must show a genuine issue of material fact that requires postponement for discovery, see McCarty v. United States, 929 F.2d 1085, 1088 (5th Cir. 1991), and must present specific facts explaining his inability to make the substantive response required by Rule 56(e), see Solo Serve Corp. v. Westowne Associates, 929 F.2d 160, 167 n. 25 (5th Cir 1991).
Story's motion for extension of time is not, however, typical of a Rule 56(f) request. He does not contend that he needs additional time for discovery or even to formulate a response. Instead, he seeks to cure a substantive defect that defendants have presented as a basis for obtaining summary judgment dismissing his claim under § 11(c)(1) of OSHA on the ground that it is not being prosecuted by the Secretary of Labor ("Secretary"). Story asserts that the Dallas compliance office of OSHA and the Secretary have been made aware of the status of his case and that counsel is now considering the merits of his case and preparing to move for leave to intervene. He requests a continuance of his obligation to respond to defendants' summary judgment motion solely to allow such intervention.
The court denies his request for an extension. Story is not contending that, if given more time, he can file a response that will overcome defendants' motion as it relates to his claim under § 11(c)(1) of OSHA. He implicitly concedes that he has no private right of action, and he seeks a delay to permit the proper party to intervene and prosecute the claim. This is not a sufficient basis to obtain an extension of the response deadline.
Additionally, if the Secretary were in fact considering seeking leave to intervene, it is likely that she would have notified the court and at least supported Story's extension request. Even taking as true Story's unsworn assertion that the Secretary is considering intervening, a motion for leave to intervene, even if as of right, would have to be timely filed. See, e.g., Bush v. Viterna, 740 F.2d 350, 354 (5th Cir. 1984) (per curiam) (holding that intervenion as of right requires that each of four requirements be met, including that application for intervention must be timely). A motion to intervene filed now by the Secretary would be untimely. This case has been pending since March 12, 1999 and is set for trial on the court's May 20, 2002 trial docket. Although part of the delay is not attributable to Story personally — some delay resulted from the disbarment proceedings of his attorney that occurred during the pendency of this action — this case is over three years old and needs to be concluded.
See In re Smith, 100 F. Supp.2d 412 (N.D. Tex. 2000) (en banc) (per curiam), aff'd, 275 F.3d 42 (5th Cir. Sept. 26, 2001) (table) (per curiam); In re Smith, 123 F. Supp.2d 351 (N.D. Tex. 2000) (three-judge panel) (per curiam), aff'd, 275 F.3d 42 (5th Cir. Sept. 26, 2001) (table) (per curiam).
Accordingly, because it is doubtful that, even if the Secretary sought leave to intervene, the court would grant the motion, and Story has not otherwise established a sufficient basis for delay and for extending the response deadline, the court denies his motion for extension.
In his summary judgment response, Story makes assertions that are typical of a Rule 56(f) request. See P. Resp. at 2. These contentions are inadequate to justify a continuance, however, for two reasons. First, they are conclusory, vague, and general concerning reasons why he has not been able to obtain needed discovery. Second, the continuance he requests would not, if granted, allow him to establish a genuine issue of material fact, because the court either is not granting defendants summary judgment based on the absence of evidence to support his claims, or Story's own admissions negate the viability of the only facts that would impact the court's decision. As the court will explain, it is in part granting summary judgment based on the unavailability of Story's causes of action as a matter of law. No amount of factual discovery could affect this aspect of the court's ruling. In the one respect that discovery could conceivably make a difference — concerning whether Kone's neglect was substantially certain to cause an injury — Story does not allege that Wagoner believed that the consequences of his conduct were substantially certain to result from his conduct, and he admits in his deposition testimony that Kone did not act intentionally. Rule 56(f) relief is not available where the discovery, if allowed, would not enable the summary judgment nonmovant to obtain evidence that is material.
As defendants point out in their reply brief, "[e]ven if the Court accepts Story's allegations as true — that his injury was caused by Wagoner's negligence — they are still insufficient to defeat summary judgment." Ds. Rep. Br. at 4.
Accordingly, Story's request for Rule 56(f) relief contained in his summary judgment response is denied.
III
Having just discussed Story's retaliatory discharge claim in the context of his motion for extension, the court will address it first, though the parties address it second.
Defendants point out that § 11(c)(1) of OSHA does not provide a private right of action, but confers on the Secretary the exclusive right of enforcement. See George v. Aztec Rental Ctr., Inc., 763 F.2d 184, 186 (5th Cir. 1985) ("We therefore hold that there is no private cause of action under federal law for a private employer's retaliatory discharge of an employee contrary to section 11(c)."). As the court explains above, see supra § II, Story concedes that the Secretary must bring this claim. In his response, he contends that "[s]ince the Department of Labor OSHA is now involved, this claim cannot be dismissed as a matter of law[,]" P. Resp. at 2, that the Secretary "is presently filing to join this case[,]" id. at 6, and that "[a] Motion to Join will be forthcoming[,]" id. But the Secretary has not sought or obtained leave to intervene in this case, and since the court likely would hold that such intervention was untimely, this does not present a valid basis to avoid summary judgment. The court therefore dismisses Story's claim under § 11(c)(1) of OSHA on the ground that he has no private right of action.
IV A
Defendants move for summary judgment dismissing Story's unsafe workplace claim on the ground that the TWCA, Tex. Lab. Code Ann. § 408.001 (Vernon 1996), provides the exclusive remedy and thus bars the claim as a matter of law because Story sought workers' compensation benefits after he injured his ankle. Defendants concede that the TWCA does not exempt employers from common law liability for intentional torts, but they assert that an employee may waive his cause of action for such a tort by seeking workers' compensation benefits. They maintain that when an employee who pursues such benefits alleges that the injury was intentionally inflicted by his employer, he has elected his remedies and is precluded from recovering damages outside the TWCA. Therefore, they reason, because Story elected to pursue workers' compensation benefits for his ankle injury, he has waived his claim for intentional failure to provide a safe workplace. Defendants also contend that Story does not assert that Kone acted intentionally, as that concept is understood under the TWCA.
In his summary judgment response, Story acknowledges that he filed a claim for workers' compensation benefits. See P. Resp. at 4-5.
Story responds that his unsafe workplace claim is not precluded as a matter of law. He argues that the Kane job foreman, Wagoner, was derelict in his duties, chose not to inspect the area in which the hole was concealed by black polyethylene sheeting, and followed rather than preceded employees to gang boxes, and that Kone should have prevented Story's injury by following its own guidelines. He contends the TWCA's exclusive remedy provision does not apply because Wagoner's neglect was substantially certain to cause an injury. Story posits that the TWCA does not exempt employers from common law liability for intentional torts, that an employee does not necessarily waive his cause of action for intentional tort by seeking workers' compensation benefits, and that he has not waived his claim for intentional failure to provide a safe workplace.
B
The TWCA contains an exclusive remedy provision that exempts employers from common law liability for negligence and gross negligence except for exemplary damages in cases involving death. Tex. Labor Code Ann. § 408.001 (Vernon 1996) provides:
(a) Recovery of workers' compensation benefits is the exclusive remedy of an employee covered by workers' compensation insurance coverage or a legal beneficiary against the employer or an agent or employee of the employer for the death of or a work-related injury sustained by the employee.
(b) This section does not prohibit the recovery of exemplary damages by the surviving spouse or heirs of the body of a deceased employee whose death was caused by an intentional act or omission of the employer or by the employer's gross negligence.
(c) In this section, "gross negligence" has the meaning assigned by Section 41.001, Civil Practice and Remedies Code.
Story posits, and defendants concede, that the TWCA does not preclude claims for intentional injuries. See Reed Tool Co. v. Copelin, 689 S.W.2d 404, 406 (Tex. 1985) ("The Texas Workers' Compensation Act is the exclusive remedy for work-related injuries with the exception of intentional injury."). The record, however, does not permit a finding of intentional injury. Some of Story's factual allegations at most state that Wagoner and Kone engaged in willful negligence or willful gross negligence. Willful negligence or willful gross negligence are not intentional injuries that are sufficient to avoid the TWCA. "An injury caused by willful negligence or willful gross negligence is not an intentional injury necessary to avoid the effect of the Workers' Compensation Act." Castleberry v. Goolsby Bldg. Corp., 617 S.W.2d 665, 666 (Tex. 1981). "The fundamental difference between negligent injury, or even grossly negligent injury, and intentional injury is the specific intent to inflict injury." Reed Tool, 689 S.W.2d at 406. An intentional injury means "that "the actor desire[d] to cause consequences of his act, or that he believe[d] that the consequences are substantially certain to result from it." Id. (quoting Restatement (Second) of Torts § 8A (1965)). Although Story contends in his response that Wagoner's neglect was substantially certain to cause an injury, see P. Resp. at 1, which is language that partially falls within Reed Tool and the Restatement, he does not allege that Wagoner believed that the consequences of his conduct were substantially certain to result from his conduct. Moreover, in contrast with the assertions of his summary judgment response, Story testified in his deposition that another company — the subcontractor that sprayed the fireproofing — placed the plastic covering over the hole, see Ds. App. 38. and that the incident was an accident, id. at 39. Story does not assert that Wagoner intended to injure him in connection with his stepping into a concealed hole that was covered with black polyethylene sheeting at a Kone job site. As the Texas Supreme Court said in Reed Tool:
[t]o establish intentional conduct, more than the knowledge and appreciation of risk is necessary; the known danger must cease to become only a foreseeable risk which an ordinary, reasonable, prudent person would avoid (ordinary negligence), and become a substantial certainty.Reed Tool, 689 S.W.2d at 406 (quoting VerBouwens v. Hamm Wood Prods., 334 N.W.2d 874, 876 (S.D. 1983)). A reasonable trier of fact could not find that Kone engaged in conduct that removes Story's claim from the exclusive remedy proviso of the TWCA. Defendants are therefore entitled to summary judgment dismissing this claim with prejudice.
* * *
Accordingly, the court grants defendants' February 28, 2002 motion for summary judgment and dismisses this action by judgment filed today.
SO ORDERED.