Court of Appeals of Texas, Houston (14th Dist.).

Margaret S. HUBBARD, Appellant

v.

BETHESDA LUTHERAN HOMES AND SERVICES, INC., Appellee.

No. 14-97-00482-CV.

|

April 22, 1999.

Panel consists of Justices YATES, AMIDEI, and FOWLER.

OPINION

YATES, J.

*1 This is an appeal from a summary judgment in a wrongful discharge case. Margaret Hubbard, appellant, filed suit against Bethesda Lutheran Homes & Services, Inc. (“Bethesda”), appellee, claiming Bethesda discharged her in retaliation for filing a workers’ compensation claim. In one point of error, Hubbard contends the trial court erred in granting summary judgment. We affirm.

Bethesda operates care facilities for individuals with mental disabilities in the Houston area. In September 1993, Hubbard worked for Bethesda as a full-time group home assistant and injured her back and hip while at work. As a result of her injury, she was unable to return to work and filed for workers’ compensation benefits. Eight months after Hubbard’s injury, Bethesda sent Hubbard a letter terminating her employment. The letter notified Hubbard that when her doctor released her to full duty she could reapply for a position with Bethesda. The letter stated:

Dear Margaret S. Hubbard:

You have been on worker’s compensation leave since September 22, 1993. Due to the need to fill this position, your employment with Bethesda Lutheran Homes and Services, Inc. has been terminated effective this date [May 5, 1994].

When your doctor releases you to full duty, you may at that time apply for a position that is available.

In August 1994, Hubbard re-applied for the position of group assistant. Bethesda contacted Hubbard’s physician and requested a work release. Hubbard’s physician restricted her to medium-duty with lifting restrictions. As a result of these lifting restrictions, Bethesda did not rehire her. Bethesda claimed Hubbard needed to be free from any lifting, walking, or standing restrictions because the group home assistant position entailed caring for mentally disabled patients, some of whom were not weight bearing.

Hubbard subsequently sued Bethesda alleging she was terminated in retaliation for filing a workers’ compensation claim. Bethesda filed a motion for summary judgment contending that Hubbard was terminated because her position needed to be filled, and she was not rehired after her termination due to the lifting restrictions. The trial court granted Bethesda’s motion.

The following standard for reviewing summary judgments is well-established: 1) the movant must show that no genuine issue of material fact exists and that it is entitled to summary judgment as a matter of law; 2) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true; and 3) every reasonable inference must be resolved in the nonmovant’s favor. See Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997) (citing Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985)). Where, as here, the summary judgment order does not specify the grounds upon which summary judgment was granted, we will affirm the judgment if any of the theories advanced in the motion is meritorious. See State Farm Fire & Casualty Co. v. S.S., 858 S.W.2d 374, 380 (Tex.1993).

*2 The Texas Labor Code prohibits discharging or discriminating against an employee who files a workers’ compensation claim in good faith. See Tex.Lab.Code Ann. § 451.001(1) (Vernon 1996) (originally codified at Tex.Rev.Civ.Stat.Ann. art. 8307c). An employee asserting a violation of section 451.001(1) has the burden of demonstrating a causal link between the discharge and the filing of the claim for workers’ compensation benefits. See Tex.Lab.Code Ann. § 451.002 (Vernon 1996); Terry v. Southern Floral Co., 927 S.W.2d 254, 257 (Tex.App.-Houston [1st Dist.] 1996, no writ). This causal connection is an element of the employee’s prima facie case and may be established by direct or circumstantial evidence. See Terry, 927 S.W.2d at 257. The standard of causation is “the employee’s protected conduct must be such that, without it, the employer’s prohibited conduct would not have occurred when it did.” See Continental Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996). Once the employee establishes a casual link, the employer bears the burden to rebut the alleged improper termination by showing there was a legitimate reason behind the discharge. See id. at 451. If the employer rebuts the alleged improper termination, the burden shifts back to the employee to produce controverting evidence of a retaliatory motive. See Texas Div.-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 314 (Tex.1994).

In the present case, Bethesda moved for summary judgment on the basis that Hubbards termination was the result of a legitimate non-discriminatory reason, the need to adequately staff the group home. Accordingly, the burden shifted to Hubbard to produce evidence of a retaliatory motive.¹

Hubbard argues there is evidence that Bethesda’s stated reason for her discharge was false. As summary judgment proof, Bethesda submitted affidavits of supervisory personnel stating that Hubbard’s termination was unrelated to the filing of a compensation claim; rather, she was terminated solely because the position needed to be filled. Further, they stated she was not rehired when she re-applied because she failed to produce a work release free from weight restrictions.

Hubbard’s affidavit attached to her response to Bethesda’s motion stated that (1) she was terminated while on worker’s compensation, (2) Bethesda’s stated reason was false because Bethesda was fully staffed, and (3) she knew of two other employees that were fired while on worker’s compensation for false reasons. However, Hubbard’s assertion that Bethesda was fully staffed and that she knew of others who were fired for false reasons is not evidence that Bethesda did not need to fill the position. These statements are no more than Hubbard’s subjective beliefs, and as such are insufficient to raise a fact issue precluding summary judgment in a retaliatory discharge action. See Carozza, 876 S.W.2d at 314.

*3 Hubbard also contends summary judgment was improper because the trial court relied on the affidavits of Bethesda employees, who were interested witnesses. However, it is well established that summary judgment based on the uncontroverted affidavit of an interested witness is proper if the evidence is clear, positive, direct, otherwise credible, free from contradictions and inconsistencies, and could have been readily controverted. See id.; Republic Nat’l Leasing Corp. v. Schindler, 717 S.W.2d 606, 607 (Tex.1986); see also Tex.R.Civ.P. 166a(c). “Could have been readily controverted” does not mean that the summary judgment evidence could have been easily and conveniently rebutted, but rather indicates that the testimony could have been effectively countered by opposing evidence. See Trico Tech. Corp. v. Montiel, 949 S.W.2d 308, 310 (Tex.1997). Further, the mere fact that an affidavit is self-serving does not necessarily make the evidence an improper basis for summary judgment. See id. We find that Bethesda’s affidavits could have been countered by opposing evidence.² Therefore, they were competent summary judgment evidence.

Hubbard also contends her supplemental response to the motion for summary judgment, which included affidavits of two former employees, created a fact issue precluding summary judgment. The motion for summary judgment was set for submission on January 3, 1997. Hubbard’s supplemental response was not filed until January 8, 1997. Rule 166a(c) of the Texas Rules of Civil Procedure provides that except on leave of court, the adverse party’s response shall be filed no later than seven days prior to the day of the hearing on the motion for summary judgment. See Tex.R.Civ.P. 166a(c). As the rule makes clear, the court has discretion to accept late-filed evidence. See INA of Texas v. Bryant, 686 S.W.2d 614, 615 (Tex.1985). However, if the court allows the late filing, it must affirmatively indicate in the record acceptance of the late filing. See id. If nothing in the record indicates that leave was obtained, we must presume that the trial court did not consider the evidence. See Farmer v. Ben E. Keith Co., 919 S.W.2d 171, 176 (Tex.App.-Fort Worth 1996, no writ) (citing to Goswami v. Metropolitan Sav. & Loan Ass’n, 751 S.W.2d 487, 490 (Tex.1988)). In the instant case, there is nothing in the record indicating that the trial court ever considered the late-filed supplemental response or affidavits. Therefore, although the affidavits appear as part of the appellate transcript, we cannot consider them in this appeal.

Finally, Hubbard argues an opinion from the Attorney General supports a finding that Bethesda’s “legitimate reason” for terminating her violates the anti-retaliation law. See Op. Tex. Att’y Gen. No. JM-227 (1984). The issue addressed in the opinion was whether a state employee could be terminated while on workers’ compensation leave for violating an across the board policy requiring termination of any employee on leave without pay for more than six weeks. See id. The Attorney General concluded that the State is “required to have a legitimate job-related reason, other than a mere leave of absence, before it may terminate an employee who is on leave because of a work related injury.” Id. Thus, this opinion is not relevant to the “legitimate reason” stated by Bethesda, i.e., the need to fill Hubbard’s position. The opinion addresses an absence control policy permitting termination after a certain period of leave, which is not the reason articulated by Bethesda for discharging Hubbard. See id. Furthermore, the Attorney General’s Opinion pre-dates more recent authority, such as, Carrozza and Cazarez, and has been rejected by the Fifth Circuit in Swearingen v. Owens-Corning Fiberglas Corp., 968 F.2d 559, 564 (5th Cir.1992).

*4 In conclusion, we find that Bethesda established a legitimate, non-discriminatory reason for Hubbards discharge and that Hubbard failed to produce controverting evidence of a retaliatory motive. Therefore, summary judgment was proper, and we overrule Hubbard’s sole point of error.

The judgment of the trial court is affirmed.

	Footnotes
1		Because Bethesda’s motion did not attempt to disprove an element of Hubbard’s prima facie case, i.e. the existence of a causal link between her discharge and the filing of her worker’s compensation claim, we will assume for purposes of this appeal that there is a fact issue as to whether the link exists. See Terry, 927 S.W.2d at 257.
2		For example, Bethesda’s affidavits could have been controverted if, in discovery, Hubbard had inquired into when Bethesda filled her position, asked for detailed information on her replacement, or inquired whether anyone else employed as a group assistant was under weight restrictions from a physician. However, Hubbard made no attempt to controvert the affidavits through deposition testimony, interrogatories, or other discovery. See Montiel, 949 S.W.2d at 310.