Opinion
No. 05-05-00203-CV
Opinion issued January 31, 2006.
On Appeal from the County Court at Law No. 3, Dallas County, Texas, Trial Court Cause No. cc-03-10823-c.
Affirmed.
Before Justices FITZGERALD, LANG-MIERS, and MAZZANT.
MEMORANDUM OPINION
Lemo Coney appeals the trial court's granting TXU Corp.'s motion for summary judgment rendering a take-nothing judgment in his suit for retaliatory discharge for filing a workers' compensation claim. See Tex. Lab. Code Ann. § 451.001 (Vernon 1996). Appellant brings two issues asserting the trial court erred in granting TXU's motion for summary judgment, contending genuine issues of material fact exist. We affirm the trial court's judgment.
TXU moved for a traditional summary judgment. In a traditional motion, the party moving for summary judgment has the burden of showing there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex. 1972). The movant has the burden of proving all essential elements of its cause of action or defense as a matter of law. Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 27 (Tex. 1990). We uphold a summary judgment on any ground supported by the evidence and the pleadings. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989).
"To prove a `retaliatory discharge' claim, the employee must show that the employer's action would not have occurred when it did had the employee's protected conduct-filing a workers' compensation claim-not occurred." Haggar Clothing Co. v. Hernandez, 164 S.W.3d 386, 388 (Tex. 2005); see Cont'l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996). In Haggar Clothing Co., the supreme court acknowledged that the employee presented circumstantial evidence of a causal link between her filing a workers' compensation claim and her termination, including evidence of economic incentives for plant managers and workers not to report on-the-job injuries, as well as threats not to pay the employee's medical bills. Haggar Clothing Co., 164 S.W.3d at 388. The court then stated, "We held in Cazarez, however, that an employer who terminates an employee pursuant to the uniform enforcement of a reasonable absence-control provision will not be liable for retaliatory discharge. The above evidence is thus immaterial if Hernandez's termination was required by the uniform enforcement of Haggar's one-year leave-of-absence policy." Id. (citation omitted, emphasis added).
TXU's absence-control policy was part of its salary-continuation program. That program pays an employee the difference between his regular salary and the workers' compensation benefits. The program continues for a maximum of one year, beginning from the time the employee is unable to perform the "essential job duties." An employee who remains unable to perform the essential job duties after exhausting the twelve months' salary-continuation benefits is terminated. According to the policy, "Eligibility benefits under the salary continuation program will stop when: . . . You reach the end of the 12-month salary continuation period. . . ." Marcus Utley, a TXU Human Resources Representative, testified in his affidavit that "an employee on light duty is eligible for salary continuation because he is not capable of performing the essential functions of his position." In this case, appellant's physician placed him on light-duty beginning October 23, 2000. Thus, under TXU's policy, if appellant did not return to work able to perform his essential job duties twelve months after going on salary continuation, he would be terminated. When appellant was unable to return to work on October 31, 2001, he was terminated.
In the conclusion to his brief, appellant states "he was terminated in April 1997." Nothing in the record shows appellant was terminated before October 2001.
Appellant asserts TXU did not conclusively prove the date he began salary continuation. Appellant asserts the salary continuation should have begun February 21, 2001, which was the last day appellant appeared for work. However, the salary-continuation begins from the time the employee is unable to perform the essential functions of his position, not from the time of his absence from work. Appellant's salary continuation began October 23, 2000 when he was placed on light duty, not February 21 when he stopped working for TXU.
Appellant states in his brief that Gene Alderson, appellant's supervisor, "stated the continuation allegedly began December 1, 2000 and not October 2000." In support of this statement, appellant cites an exhibit to Alderson's affidavit, the Notice of Salary Continuation appellant received on December 1, 2000. As Alderson explained in his supplemental affidavit, the Notice of Salary Continuation
states that Mr. Coney began restricted duty on October 23, 2000. It also states that he was notified that his salary continuation period began. On or about December 1, 2000, I orally told Mr. Coney that his twelve month salary continuation period began on October 23, 2000, when he began restricted duty.
The exhibit attached to the affidavit is consistent with Alderson's description. The exhibit does not show the salary continuation period began in December 2000 instead of October 2000. Appellant argues the evidence shows the salary continuation policy "was not uniformly applied as evidenced by TXU's own admissions that Coney's salary continuation benefits were not signed for until August 2001." In support of this statement, appellant cites to a Request and Agreement signed by appellant and Alderson on August 31, 2001. This document requested salary continuation benefits and authorized TXU to deduct from appellant's pay any salary overpayments resulting from appellant's receipt of workers' compensation benefits. Contrary to appellant's assertion, this document does not state that August 31, 2001 was the beginning of the salary continuation period. Also, attached to Alderson's supplemental affidavit is a nearly identical Request and Agreement signed by appellant and Alderson on December 8, 2000. The only difference in the documents appears to be that the employee was identified as "Lemo Coney, Jr." in the December 2000 document and as "Lemo Coney" in the August 2001 document. Like the August 2001 document, the December 2000 document does not state the date appellant began salary continuation. These documents do not raise a genuine issue of material fact concerning the date appellant's salary continuation benefits began.
Appellant also argues TXU failed to show uniform enforcement of the absence-control policy. TXU presented evidence showing it terminated three employees who had not filed for workers' compensation benefits and who did not return to work at the expiration of their salary continuation benefits. This evidence establishes uniform enforcement of the absence-control policy.
Appellant next argues that TXU's policies were not properly applied to him because "at the time of the termination, Coney was released for his work-related injury by the carrier's doctor and TXU would not return him to work." In support of this statement, appellant cites to his amended affidavit, which cites to an attached exhibit. That exhibit is a Report of Medical Evaluation dated September 11, 2001, which stated appellant had "reached maximum medical improvement" on that date and that he had "a whole body impairment rating of 8%." Contrary to appellant's assertions, the Report of Medical Evaluation did not purport to release appellant for his work-related injury. Also, appellant testified in his deposition that in October 2001, he could not do his job. Appellant has not raised a genuine issue of material fact concerning his ability to perform his essential job duties at the time of his termination.
Appellant also asserts, "TXU departed from standard company policy because it never gave Coney the proper notice of the alleged leave." Appellant then cites to his objections to TXU's affidavits and exhibits. Appellant does not cite to any evidence of the notice required under the policy or evidence that he did not receive "the proper notice." Appellant has failed to raise a genuine issue of material fact concerning whether TXU followed its policies.
Appellant also argues the existence of other circumstantial evidence that his termination was a result of his filing a workers' compensation claim. That evidence includes the fact that the people who decided to terminate appellant were aware of his workers' compensation claim, the proximity in time between his termination and "after he again received salary continuation," and TXU's negative attitude toward his injury. See Cazarez, 937 S.W.2d at 451 (listing types of circumstantial evidence showing causal connection between workers' compensation claim and termination). These facts, however, are immaterial because TXU established appellant was terminated pursuant to its uniformly enforced absence-control policy. See Haggar Clothing Co., 164 S.W.3d at 388 (circumstantial evidence of causal connection is "immaterial" when employer proves uniform enforcement of absence-control policy).
Appellant cites Palmer v. Miller Brewing Co., 852 S.W.2d 57 (Tex.App.-Fort Worth 1993, writ denied), in support of his argument that circumstantial evidence of retaliation bars a summary judgment for an employer based on uniform enforcement of an absence-control policy. In Palmer, the Fort Worth Court of Appeals was facing an issue of first impression for Texas courts, whether termination pursuant to an absence-control policy that did not exclude absences related to the on-the-job injury violated the Workers' Compensation Act. Id. at 61. The court observed that the Fifth Circuit had addressed the issue and concluded the termination did not violate the retaliatory discharge statute, then article 8307c. Id. at 61-62. Discussing and quoting the Fifth Circuit's opinion, the Fort Worth court stated, "Even so, the [Fifth Circuit] court stated that an employer could violate article 8307c by terminating an employee under an absence control policy if the termination were tainted by the `presence of an illegitimate, retaliatory motive.'" Id. at 62 (quoting Swearingen v. Owens-Corning Fiberglas Corp., 968 F.2d 559, 564 (5th Cir. 1992)). Relying on Palmer, appellant asserts the circumstantial evidence of a causal connection he presented constitutes the "presence of an illegitimate, retaliatory motive" barring summary judgment for TXU. The language on which appellant relies is dicta because, in both Palmer and Swearingen, the employees failed to prove a causal connection. See Swearingen, 968 F.2d at 564; Palmer, 852 S.W.2d at 61. After the issuance of both Swearingen and Palmer, the Texas Supreme Court has clarified the issue and held that circumstantial evidence of a causal connection between an employee's termination and his filing a workers' compensation claim is "immaterial" when the employer establishes the employee's termination was pursuant to a uniformly enforced absence-control policy. See Haggar Clothing Co., 164 S.W.3d at 388.
Appellant also asserts proof of uniform enforcement of absence-control policies does not entitle TXU to summary judgment because, appellant argues, "[t]he fact finder may reject an employer's claim it applied a neutral discharge policy." The case appellant cites, Acme Boot Co. v. Montenegro, 862 S.W.2d 806 (Tex.App.-El Paso 1993, no writ), is distinguishable because it involved evidence that the employer did not apply its policy to the appellant in the same manner that it had applied the policy to other employees. See id. at 809. In this case, the evidence shows TXU uniformly applied its absence-control policy, and there is no evidence that TXU applied the policy differently to appellant than to other employees. The supreme court has held that when an employer proves an employee who had filed a workers' compensation claim was terminated pursuant to a uniformly enforced absence-control policy, the employer "will not be liable for retaliatory discharge" and is entitled to judgment as a matter of law. Haggar Clothing Co., 164 S.W.3d at 388-89; Cazarez, 937 S.W.2d at 451. We conclude TXU met this burden, and appellant has failed to show the existence of genuine issues of material fact. We hold the trial court did not err in granting TXU's motion for summary judgment. We overrule his first and second issues.
We affirm the trial court's judgment.