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Johnston v. Del Mar Distrib. Co. - 776 S.W.2d 768 (Tex. App. 1989)


The Texas Supreme Court, recognizing the need to amend the employment-at-will doctrine, invoked its judicial authority to create a very narrow common law exception to the doctrine. The court held that public policy, as expressed in the laws of this state and the United States which carry criminal penalties, requires a very narrow exception to the employment-at-will doctrine, the narrow exception covers only the discharge of an employee for the sole reason that the employee refused to perform an illegal act. 


During the summer of 1987, appellant, Nancy Johnston, was employed by the appellee Del Mar Distributing Co., Inc. As a part of her duties, she was required to prepare shipping documents for goods being sent from Del Mar's warehouse located in Corpus Christi, Texas to other cities in Texas. One day, Del Mar instructed Johnston to package a semi-automatic weapon (for delivery to a grocery store in Brownsville, Texas) and to label the contents of the package as "fishing gear." Ultimately, the package was to be given to United Parcel Service for shipping. Johnston was required to sign her name to the shipping documents; therefore, she was concerned that her actions might be in violation of some firearm regulation or a regulation of the United Postal Service. Accordingly, she sought the advice of the United States Treasury Department Bureau of Alcohol, Tobacco & Firearms (hereinafter referred to as "the Bureau"). A few days after she contacted the Bureau, Johnston was fired. Thereafter, Johnston brought suit for wrongful termination alleging that her employment was terminated solely in retaliation for contacting the Bureau. In its motion for summary judgment, Del Mar admitted the facts ascertained by Johnston; however, it contended that notwithstanding that fact, cause of action was barred by the employment-at-will doctrine. Specifically, Del Mar asserted that since Johnston’s employment was for an indefinite amount of time, she was an employee-at-will and thus, Del Mar had the absolute right to terminate her employment for any reason or no reason at all. The district court ruled in favor of Del Mar and granted its motion for summary judgment, ruling that Johnston’s claim for wrongful termination failed to state a cause of action.


Did Johnston’s claim for wrongful termination fail to state a cause of action, thereby, justifying the district court’s grant of summary judgment in favor of Del Mar?




The appellate court determined that a fact issue existed in the case at bar, and thus, the trial court should not have granted the summary judgment. The appellate court held that because Texas law provided that an employee had a cause of action where she was fired for refusing to perform an illegal act, it followed that Johnston stated a cause of action where she alleged that she was fired for simply inquiring into whether or not she was committing illegal acts.

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