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Brown v. CB&I, Inc.

Court of Appeals of Texas, Ninth District, Beaumont

January 16, 2014


Submitted on July 1, 2013

On Appeal from the 172nd District Court Jefferson County, Texas Trial Cause No. E-190, 914

Before McKeithen, C.J., Kreger, and Horton, JJ.



Calvin Brown sued his former employer, CB&I, for unlawful employment practices under the Texas Commission on Human Rights Act ("TCHRA"). See Tex. Lab. Code Ann. § 21.001-.556 (West 2006 & Supp. 2013). Additionally, Brown sued two of his former supervisors, Mike Sossman and Irving Garcia (misnamed as Irving Gatica) for tortious interference and constructive fraud. Finally, in the same suit, Brown also sued a former coworker, Mike Anderson, for intentional infliction of emotional distress.

CB&I, Sossman, and Garcia filed a motion for summary judgment and subsequently, a motion to strike Brown's summary judgment evidence filed in opposition to their motion.[1] The trial court granted both motions. Brown contends the trial court erred in granting Appellees' motion to strike Brown's summary judgment evidence because the motion lacked merit and had not been set for hearing. Brown further contends the trial court erred in granting summary judgment in favor of CB&I, Sossman, and Garcia because material fact issues remain. We affirm the trial court's judgment.

I. Background

Calvin Brown worked for CB&I as a structural welder for approximately two and a half years before he was laid off as part of a reduction in force on January 21, 2010. During certain periods of his employment with CB&I, Sossman and Garcia were Brown's supervisors.

The summary judgment record includes excerpts from Brown's deposition testimony. Brown testified that on July 30, 2007, he witnessed a co-worker, Mike Anderson, intentionally direct sparks from a grinder toward another co-worker. On witnessing this, Brown instructed Anderson to stop because the sparks could strike his coworker in the eye. Brown then climbed to the top of a ladder to fix a weld. When Brown completed the weld, he climbed down, and witnessed a knotted rope, which Brown described in his petition as a "hangman's noose, " fastened to his ladder by a binder clip. Brown admitted that he did not see Anderson tie the rope or place it on his ladder, but he believed that Anderson was responsible because another coworker told him "Anderson had something to do with the noose."

Brown's supervisor had already left the shop by the time Brown discovered the rope, so Brown informed the supervisor in the adjacent workstation and also someone from the safety department about the incident. At the beginning of his shift the next day, Brown reported the incident to his direct supervisor. Brown testified that his supervisor told him he did not think what had happened was right and he was going to investigate the matter. Later that morning, Brown was asked to write a written report about the incident and was then called into a meeting with the plant manager, someone from the safety department, and someone from human resources to discuss the incident. Brown testified that he mentioned the noose in his written report, but the noose was not specifically discussed in the meeting and he never saw it again. Brown left the meeting under the impression that CB&I took his report of the noose seriously. After CB&I's investigation of the incident, the company suspended Anderson from work for three days. Approximately a week after returning from his suspension, Anderson ended his employment with CB&I.

Six months later, CB&I rehired Anderson. Shortly after being rehired, Anderson was placed in the same workstation as Brown. Brown complained to the plant manager, who immediately responded by investigating the situation and ultimately placed Anderson and Brown in separate workstations. Brown testified that the plant manager seemed concerned about the issues Brown reported and never said anything negative, inappropriate, or threatening, but seemed courteous and respectful, and listened to his concerns. Brown acknowledged that during the time he was in the same workstation as Anderson, Anderson did not threaten or make any harassing comments of any kind to him. Anderson was ultimately laid off in the fall of 2009.

Brown testified that sometime in 2009, an altercation occurred between Sossman's brother-in-law, a CB&I employee, and an African American CB&I employee. According to Brown, "someone said that [Sossman's brother-in-law] had called [another employee] the 'N' word[]" and that the African American employee was later terminated because of the altercation. Brown testified that his name was somehow included in this incident, and Sossman and Garcia approached him in his work area and one of them said, "I heard you had called me a racist." Brown denied calling either man a racist but said he did not think it was right for CB&I to fire the African American employee and CB&I should have allowed the investigation to continue. On January 21, 2010, CB&I laid off Brown. After Brown was laid off, he filed this suit.

II. Exclusion of Summary Judgment Evidence

Prominent among Brown's complaints is his contention that the trial court erred in failing to properly consider his summary judgment evidence. In issue three, Brown contends that the trial court erred in striking his summary judgment evidence without an oral hearing. Brown argues that a trial court cannot grant a motion or issue an order on a motion that was not first heard by the trial court. Appellees contend that Brown did not timely appeal the trial court's order striking his summary judgment evidence. Essentially, they argue that Brown limited his appeal by specifically listing in the notice of appeal only his challenge to the trial court's order granting summary judgment.

An appellant is not required to specify issues in a general notice of appeal. See Tex. R. App. P. 25.1(d). Moreover, nothing in Rule 25.1 limits the issues that Brown, having properly invoked our jurisdiction, may raise on appeal. See Anderson v. Long, 118 S.W.3d 806, 809-10 (Tex. App.-Fort Worth 2003, no pet.) (noting the plaintiff whose notice indicated appeal from plea to the jurisdiction could also argue on appeal the summary judgment); see also Gunnerman v. Basic Capital Mgmt. Inc., 106 S.W.3d 821, 824-25 (Tex. App.-Dallas 2003, pet. denied) (citing Rule 25.1 and holding appeal from final judgment encompassed earlier interlocutory orders). We conclude that Brown's ...

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