Opinion
No. 04-04-00912-CV
Delivered and Filed: May 17, 2006.
Appeal from the 111th Judicial District Court, Webb County, Texas, Trial Court No. 2003-Cvq-001425-D2, Honorable Raul Vasquez, Judge Presiding.
Affirmed.
Sitting: Sarah B. DUNCAN, Justice, Karen ANGELINI, Justice, Sandee Bryan MARION, Justice.
MEMORANDUM OPINION
Jorge Gutierrez sued Contract Freighters, Inc. for violations of sections 21.051 and 451.001 of the Texas Labor Code. He appeals from the trial court's summary judgment granted in favor of Contract Freighters, Inc. We affirm the judgment of the trial court.
Background
In January 2001, ten years after receiving his commercial driver's license, Gutierrez was hired by Contract Freighters, Inc. ("CFI") as an at-will employee to drive eighteen-wheeler tractor-trailers. During his employment with CFI, he was involved in four separate accidents. On September 13, 2001, Gutierrez backed into another parked tractor-trailer at a docking area and damaged the trailer's left front fender. Two months later, on November 14, 2001, Gutierrez fell backwards from the cab of his tractor-trailer and injured his back. As a result of his back injury, he sought workers' compensation benefits. After he returned to work, Gutierrez was involved in two more accidents. On March 25, 2002, Gutierrez damaged the bumper on his tractor-trailer while attempting to pick up a trailer still attached to the dock. He was reprimanded by CFI and issued a warning of possible discharge if any further accidents occurred. A month later, on April 29, 2002, Gutierrez damaged another tractor-trailer's door while backing into a dock. Gutierrez was fired by CFI; the reason given for his termination was his unsatisfactory safety record and his failure to meet CFI's safety standards.
Believing that he was fired because of his on-the-job injury, Gutierrez brought claims against CFI for violating sections 21.051 and 451.001 of the Labor Code. CFI filed a traditional and no-evidence motion for summary judgment on two grounds. First, CFI argued that Gutierrez's claims pursuant to section 21.051 were barred because he failed to timely exhaust administrative remedies. Second, CFI argued that summary judgment should be granted on Gutierrez's claims under chapter 451, because there was a legitimate, nondiscriminatory reason for Gutierrez's discharge. The trial court granted CFI's motion for summary judgment and entered a take-nothing judgment in favor of CFI. Gutierrez appeals.
Discussion
According to Gutierrez, with respect to his claims under chapter 451, the trial court should not have granted summary judgment because material issues of fact were raised. We review the granting of a summary judgment under the usual standard of review. See Tex. R. Civ. P. 166a(c), (i); Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995) (traditional summary judgment standard); Merrill Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997) (no-evidence summary judgment standard).
Section 451.001 of the Texas Labor Code prohibits an employer discharging or discriminating against an employee in retaliation for filing a workers' compensation claim in good faith. See Tex. Lab. Code Ann. § 451.001(1) (Vernon 2006). An employee must initially show that (1) he filed a claim for workers' compensation benefits in good faith; (2) he suffered an adverse employment action; and (3) there is a causal link between the adverse employment action and the filing of a workers' compensation claim. See Terry v. S. Floral Co., 927 S.W.2d 254, 257 (Tex.App.-Houston [1st] 1996, no writ); see also Benners v. Blanks Color Imaging, Inc., 133 S.W.3d 364, 369 (Tex.App.-Dallas 2004, no pet.). Thus, the employee must demonstrate that the employer's action would not have occurred when it did had the employee not filed the workers' compensation claim. Haggar Clothing Co. v. Hernandez, 164 S.W.3d 386, 388 (Tex. 2005).
If a plaintiff shows a link between the filing of a workers' compensation claim and the employee's discharge, the employer may rebut the alleged retaliation by showing there was a legitimate, nondiscriminatory reason for the discharge. Cont'l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 451 (Tex. 1996). The burden then shifts back to the employee who must, in order to survive a motion for summary judgment, produce controverting evidence of retaliatory motive. Terry, 927 S.W.2d at 257; see Tex. Division-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 313-14 (Tex. 1994). Thus, the employee must produce evidence that would call into question the employer's explanation for his discharge, thereby creating a fact issue about its true motive for discharging him. English v. Dillard Dep't Stores, Inc., No. 14-04-00197-CV, 2005 WL 2875006, at *4 (Tex.App.-Houston [14th Dist.] 2005, no pet.) (citing Carrozza, 876 S.W.2d at 314).
"[A]n employer is entitled to summary judgment in a chapter 451 retaliatory discharge action when a legitimate, non-discriminatory reason for the discharge is established and the employee fails to produce evidence of a retaliatory motive." Terry, 927 S.W.2d at 257 (citing Carrozza, 876 S.W.2d at 312-14); Cox v. NextiraOne, 169 S.W.3d 778, 781 (Tex.App.-Dallas 2005, no pet.) (explaining that once burden shifts back to employee, to defeat a motion for summary judgment, an employee must (1) challenge the employer's proof that the reason given for the discharge was a legitimate, nondiscriminatory reason, or (2) present evidence raising a fact issue on whether the reason given for termination was a pretext for the discrimination). Proof that the stated reasons for discharge are false is sufficient to establish a retaliatory motive. See Cazarez, 937 S.W.2d at 452.
For example, in Carrozza, as summary judgment proof, the employer submitted affidavits of supervisory personnel stating that the employee was not terminated because of his workers' compensation claim but because he had violated a company policy dictating "mandatory termination of any employee who, failing special circumstances, is absent three consecutive work days without receiving permission beforehand, or giving notice during those three days." Carrozza, 876 S.W.2d at 313. The supreme court held that uniform application of such a policy was a legitimate non-discriminatory reason for the discharge. Id. Although the employee's affidavit affirmed that he believed in good faith that he had been terminated because he had filed a workers' compensation claim and that there was no other legitimate reason for his termination, the supreme court held that the employee had offered no evidence which would sufficiently challenge the employer's explanation that the termination was the result of the company's non-discriminatory application of its policy. Id. at 314.
Similarly, in Terry, the employer's summary judgment evidence showed that the employee was terminated in compliance with the company's absence-control policy. Terry, 927 S.W.2d at 258. According to the First Court of Appeals, because the employer had produced evidence of a legitimate non-discriminatory reason for the discharge, "[a]bsent controverting evidence belying [the employer]'s neutral explanation, summary judgment based upon [the employer]'s evidence was proper." Id. at 258-59.
Here, CFI produced evidence of a legitimate, non-discriminatory reason for Gutierrez's discharge: his unsatisfactory safety record and his failure to meet CFI's safety standards. Therefore, the burden then shifted to Gutierrez to produce controverting evidence of retaliatory motive. Gutierrez, however, does not contest his safety record. It is undisputed that during his one and a half years of employment with CFI, Gutierrez was involved in four accidents. Instead, in his affidavit, Gutierrez states that because a CFI employee badgered him to come back to work and because he was worried he would lose his job, he came back to work before he was ready. According to Gutierrez, the accidents were a result of him being on pain medication and not being able to physically move properly. While the affidavit is evidence of the reason for the accidents, it does not rebut CFI's legitimate, nondiscriminatory reason for his discharge: his unsatisfactory safety record. See Carrozza, 876 S.W.2d at 314 (affirming summary judgment by reasoning that the employee had "offered no evidence, either circumstantial or direct, which would call into question [the employer]'s explanation that the termination was the result of nondiscriminatory application of [the employer's policy]"); see also Haggar, 164 S.W.3d at 388 (holding that evidence of 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 was immaterial because the employee's termination was required by the uniform enforcement of the employer's one-year leave-of-absence policy, a legitimate nondiscriminatory reason for the employee's discharge). Therefore, the trial court correctly granted summary judgment on Gutierrez's claims under chapter 451.
Gutierrez also claims that CFI "was not entitled to summary judgment as to all of [Gutierrez]'s claims, because [CFI] failed to address or raise issues regarding all of [his] claims." We disagree. Gutierrez's second amended petition raised claims under sections 21.051 and 451.001 of the Labor Code. CFI moved for summary judgment on two grounds: (1) Gutierrez was barred from pursuing any claims under section 21.051 because he failed to exhaust his administrative remedies; and (2) with respect to his claims under section 451.001, he was terminated for a legitimate, nondiscriminatory reason. Thus, CFI's motion attacked all claims brought by Gutierrez.
Section 21.051 of the Labor Code prohibits discrimination by an employer:
An employer commits an unlawful employment practice if because of race, color, disability, religion, sex, national origin, or age the employer:
(1) fails or refuses to hire an individual, discharges an individual, or discriminates in any other manner against an individual in connection with compensation or the terms, conditions, or privileges of employment; or
(2) limits, segregates, or classifies an employee or applicant for employment in a manner that would deprive or tend to deprive an individual of any employment opportunity or adversely affect in any other manner the status of an employee.
Tex. Lab. Code Ann. § 21.051 (Vernon 2006).
To the extent Gutierrez is arguing that CFI's legitimate, nondiscriminatory reason for his termination would not be a reason for all of his claims under chapter 451 to be dismissed, he has inadequately briefed the issue. See Tex.R.App.P. 38.1(h).
On appeal, Gutierrez does not challenge the trial court's dismissal of his chapter 21 claims for failure to his exhaust administrative remedies.
Conclusion
For the reasons stated above, we affirm the judgment of the trial court.