## Facts

- Janet Brunner worked as an at-will employee for Apollo Paint & Body, a general partnership owned by Farouk and Rima Al Attar.
- Brunner volunteered with a local AIDS organization during nonworking hours and told Farouk it would not interfere with her job.
- Brunner explained that AIDS could not be transmitted through casual contact such as touching, sneezing, or breathing.
- Farouk objected to her continued employment while volunteering, stating concern for the safety of himself, his family, and office workers.
- Farouk urged Brunner to resign; she refused, and after further discussion Farouk terminated her employment.
- Brunner asserted she was fired due to Farouk’s fear she would contract and spread AIDS; the employer asserted performance and scheduling reasons.
- Brunner admitted she did not have AIDS and was not infected with HIV.

## Issues

1. Whether an at-will employee has a wrongful-discharge claim based on public policy when terminated for volunteering with an AIDS organization.
2. Whether Tex. Const. art. I, §§ 8 (speech) and 27 (assembly) create a private cause of action against a private employer for discharge based on protected activity.
3. Whether the employee was “handicapped,” had a record of handicap, or was regarded as handicapped under Tex. Rev. Civ. Stat. art. 5221k, based on an employer’s fear that she might contract AIDS in the future.

## Decision

- The court of appeals affirmed summary judgment for the employer on all claims.
- The court held Texas law did not recognize a public-policy exception covering termination for AIDS-related volunteer work.
- The court held the cited Texas constitutional provisions did not support a claim against private (non-state) actors.
- The court held Brunner failed to show she was within the statutory definition of “handicapped” under art. 5221k.

## Legal Principles

- Texas at-will employment permits termination for any reason unless a recognized exception applies; public-policy exceptions are limited and are not expanded by intermediate appellate courts absent controlling authority.
- The recognized wrongful-discharge public-policy exception applies when an employee is fired solely for refusing to perform an illegal act; termination unrelated to that exception does not state a claim.
- Texas constitutional guarantees of speech and assembly protect against governmental action; absent state action, they do not create a direct wrongful-discharge remedy against a private employer.
- Under art. 5221k, “handicap” requires an actual impairment substantially limiting a major life activity, a record of such impairment, or being regarded as having such an impairment; perceived future risk of contracting a disease, without a present impairment or perceived present impairment, is insufficient.

## Conclusion

The court affirmed summary judgment because Texas law provided no wrongful-discharge remedy for an at-will employee terminated for AIDS-related volunteer activity, the Texas Constitution did not supply a private cause of action against a private employer, and the employee did not meet (and was not perceived as meeting) the statutory definition of “handicapped” under art. 5221k.


Brunner v. Al Attar, 786 S.W.2d 784 (Tex. App.—Houston [1st Dist.] 1990)