Brown v. Holman, 335 S.W.3d 792 (Tex.App.–Amarillo 2011, nwh)
Non-Subscriber Suit by Employee- Employee sued his employer, which was a non-subscriber to the
worker’s compensation system, alleging that he sustained personal injuries in the course and scope of
his employment. The district court entered a summary judgment for the employer. The court of
appeals sustained the summary judgment holding that the employee’s decision to climb over a fence
with a 65 pound mold was the sole proximate cause of his injuries, and thus, the employer was not
responsible for employee’s injuries.
Note: A review of Texas Labor Code § 406.033 reveals that the defense of sole proximate cause is not
listed as one of ways in which an employer may defend the suit. § ( c ) states that an employer may
defend the action on the ground that the injury was caused by an act of the employee intended to bring
about the injury or while the employee was in a state of intoxication. No other defense is granted but
the courts grafted on the defense of sole proximate cause and have begun to use it in many cases to
defeat employee suits when what these courts are really doing is saying, in effect, that the employee
was guilty of negligence causing his injury. This defense appears to have been ruled out by the law
saying that “it is not a defense that the employee was guilty of contributory negligence”. The waiver of
the defenses by a non-subscriber was legislated in order to encourage employers to subscribe to the
worker’s compensation system and provide penalties if they did not. However, the rulings by the
courts of appeals and the Texas Supreme Court in the last several years would seem to have the
opposite effect by ruling, in many instances, that the employee was the negligent cause of his own
injury. If the employer had worker’s compensation then this defense would not be available. So, it
appears that the Supreme Court and other courts are now rewarding (not discouraging) employers for
not having worker’s compensation.

Nafta Traders, Inc. V. Quinn, 339 S.W.3d 84 (Tex.2011)
Arbitration- Former employee filed a motion to confirm an arbitration award in her favor on her claim
against employer for sex discrimination under the Texas Human Rights Act and sought special
damages. The district court and court of appeals confirmed the award. On review by the Texas
Supreme Court, the Court held that the Texas Arbitration Act (TAA) did not preclude the parties from
agreeing to limit the arbitrator’s authority in a manner that expanded the scope of judicial review and
the Federal Arbitration Act (FAA) did not preempt enforcement of an arbitration agreement that
expanded judicial review. The Court recognized that the U.S. Supreme Court in Hall Associates, LLC
v. Mattel, Inc., 552 U.S. 576 (2008), held that the grounds for vacating or modifying an arbitration
award under the FAA are exclusive and cannot be supplemented by contract. The Texas Supreme
Court stated that the principal question in the Nafta Traders appeal was whether the TAA likewise
precludes an agreement for judicial review of an arbitration award for reversible error, and if not,
whether the FAA preempts enforcement of such agreement. The court held that in the case before
them that neither the TAA or FAA preempted enforcement of such an agreement to expand the scope
of judicial review to allow a review for reversible error. Therefore, based on the arbitration agreement,
the courts could determine whether the arbitrator committed error in his award.

Rockwall Commons Associates, Ltd. v. MRC Mortgage Grantor Trust, 331 S.W.3d 500
(Tex.App.–El Paso 2010, nwh).
Summary Judgment- This is a case involving a summary judgment in a breach of contract case. The
only reason this case is mentioned here is that it is a comprehensive review of the use of summary
judgment affidavits and this is a subject that is constantly arising in employment cases, since 99% of
employment cases face a motion for summary judgment and the use of affidavits. This case is a good
one for your summary judgment case notebook.

Twigland Fashions v. Miller, 335 S.W.3d 206 (Tex.App.–Austin 2010, nwh)
Sexual Harassment- A former female employee filed suit against employer alleging a hostile work
environment theory of gender based job discrimination through a male supervisor’s sexual harassment.
After a trial, the employee was awarded a judgment. On appeal, the court of appeals reversed the
judgment. The court noted that the employee had never complained to anyone above her supervisor
that she had been sexually harassed before her termination. The court reviewed the sexual harassment
law that the alleged harassment must create an environment that must alter a term, condition or
privilege of employment. The harassment must be severe or pervasive in order to create a hostile
abusive working environment. The abusiveness requires “extreme” conduct but not necessarily any
tangible psychological impact on the victim. Rather, abusiveness is said to take a middle path between
making actionable any conduct that is merely offensive and requiring the conduct to cause a tangible
psychological injury. The concept is that sexual harassment rises to a level that is so extreme and
abusive that it deprives the victim of equal opportunity in the workplace. Whether conduct is
sufficiently extreme to create an abusive work environment is to be viewed from both an objective and
subjective standpoint. Whether a work environment is objectively abusive is determined by considering
all the circumstances which may include the frequency of the conduct, its severity, whether it is
physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably
interferes with an employee’s performance. Sexual harassment may give rise to an abusive work
environment through either its objective severity or its pervasiveness, or some combination of both.
The test is disjunctive. An egregious, yet isolated incident can alter the terms, conditions, or privileges
of employment. The inverse is also true, that frequent incidents of harassment, though not severe, can
reach the level of pervasiveness, thereby interfering with the terms, conditions, or privileges of
employment such that a hostile work environment exists. The case discusses cases on both sides of the
issue and is a good review of these “example cases” as to cases that were found to be sexual
harassment and those cases that were not found to be sexual harassment. Ultimately, the court of
appeals found that the harassment of the supervisor in the Miller case was not severe or pervasive
enough to be classified as actionable