Opinion
No. 05-03-00763-CV.
Opinion issued April 1, 2004.
On Appeal from the 193rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. 01-274-L.
Affirmed.
Before Justices JAMES, WRIGHT, and BRIDGES.
MEMORANDUM OPINION
Gary McKee appeals the trial court's granting of summary judgment in favor of Shermco Industries, Inc. in his workers' compensation retaliation claim. McKee argues the court erred because there are genuine issues of material fact regarding the illegitimacy of Shermco's stated reason for terminating McKee's employment, whether he was retaliated against, and whether but for the workers' compensation proceeding, McKee would have been terminated when he was. The facts of this case are well-known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are clearly settled in the law, we issue this memorandum opinion. See Tex.R.App.P. 47.4. We affirm the judgment of the trial court.
We review summary judgment under well-established standards. See Havlen v. McDougall, 22 S.W.3d 343, 345 (Tex. 2000); Gen. Mills Rests., Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 832-33 (Tex. App.-Dallas 2000, no pet.). Shermco moved for summary judgment on two grounds, using a defending party's motion and a no-evidence motion. See Tex. R. Civ. Proc. 166a(b), (i). Under each theory, Shermco contended McKee did not present evidence to show that but for the workers' compensation claim, McKee would not have been terminated when he was.
Section 451.001 of the Texas Labor Code prohibits an employer from discharging an employee for filing a workers' compensation claim in good faith. See Tex. Lab. Code Ann. § 451.001 (Vernon 1996). To prevail on a section 451.001 claim, an employee need not show he was fired solely because of filing the workers' compensation claim. Rather, he must show that "but for" the filing of the claim, the discharge would not have occurred when it did. See Cont'l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450-51 n. 3 (Tex. 1996); Vallance v. Irving C.A.R.E.S., Inc., 14 S.W.3d 833, 837 (Tex. App.-Dallas 2000, no pet.). A no-evidence summary judgment may be upheld when there is evidence sufficient to support the termination for reasons other than filing a worker's compensation claim. See Lee v. Haynes Boone, L.L.P., No. 05-03-00565-CV, 2004 WL 303599, at *3 (Tex. App.-Dallas Feb. 18, 2004, no pet. h.).
Shermco moved for summary judgment on the basis that McKee had no evidence that but for the filing of the claim, the discharge would not have occurred when it did. Here, the summary judgment evidence shows McKee was suspended without pay in December 1998 for mistreatment of coworkers. He received a written warning for his behavior, agreed some of the allegations may be true, and signed the warning. The warning stated he would not "verbally threaten or harass any other Shermco employee. . . ." According to his deposition testimony, when he signed the warning, he understood that if he violated any terms of the write-up, he could be terminated. In February 2000, Shermco employee Roy Hackney reported in an interview with Shermco's human resources manager that McKee treated new employees in a harassing or bothersome way. Owen Wingate, another Shermco employee, testified in his deposition that McKee had been harassing Wingate about being the manager's nephew.
McKee admitted to the complained-of behavior, although he said he was merely "getting [Wingate's] goat" and not "harassing" him. Regardless, he did admit to the behavior; we overrule McKee's first point of error complaining of falsity of the termination reasons. Furthermore, we overrule McKee's second point of error arguing there are fact issues of whether but for the workers' compensation claim, he would not have been terminated. To overcome the no-evidence summary judgment motion, McKee had to produce evidence showing that "but for" the filing of the claim, the discharge would not have occurred. See Lee, 2004 WL 303599, at *3. He failed to do so.
We affirm the trial court's judgment.