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

Joyce TAYLOR, Appellant

v.

FIRST BANK, Appellee

No. 14-98-00434-CV.

|

Aug. 19, 1999.

Before ANDERSON, HUDSON, and DRAUGHN.¹

OPINION

ANDERSON, J.

*1 This is an appeal from an order granting summary judgment in favor of First Bank. Joyce Taylor brought a retaliatory discharge claim against First Bank. First Bank filed a motion for summary judgment asserting a legitimate, non-discriminatory purpose for Taylor’s termination, and the trial court granted the motion. Taylor brings one point of error alleging summary judgment was improper because a fact issue exists as to a causal connection between her termination and her filing a workers’ compensation claim. We affirm.

I. Background

First Bank hired Taylor in January 1978. She worked in new accounts until May 6, 1992, when she fell down a flight of stairs at the bank and injured her knee. Taylor filed a workers’ compensation claim the same day. Two years after the accident, Taylor still had not returned to work, and on April 6, 1994, First bank decided to terminate her employment. At the time of her termination, Taylor still had not been released to return to work by her physician. She was not provided a release until March 1996. In April 1996, Taylor filed her suit against First Bank alleging her discharge was the direct result of the filing of her workers’ compensation claim. In its motion for summary judgment, First Bank stated that its decision to terminate Taylor was based not on the fact that she had filed a workers’ compensation claim, but because she had been continuously absent for almost two years, she had not been released by her physician to return to work, and there was no indication that she would return to work in the future.

II. Standard of Review

Summary judgment is proper when a movant establishes there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law. See Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995); Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 548 (Tex.1985). A defendant is entitled to summary judgment if it can disprove at least one element of a plaintiff’s cause of action as a matter of law. See Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991). If the defendant meets this burden, summary judgment is proper unless the plaintiff produces controverting evidence which raises a material fact issue on the element negated by the defendant. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979); Lentino v. Cullen Ctr. Bank & Trust, 919 S.W.2d 743, 745 (Tex.App.-Houston [14 ^th Dist.] 1996, writ denied). In reviewing the granting of a summary judgment motion, we must accept as true evidence in favor of the non-movant, indulging every reasonable inference and resolving all doubts in his or her favor. See Randall’s Food Mkts., Inc., 891 S.W.2d at 644.

III. Analysis

A. Causal Connection

*2 Taylor’s petition claims that she was discharged by First Bank in violation of section 451.001 of the Texas Labor Code for having filed a workers’ compensation claim. See Tex. Lab.Code Ann. § 451.001 (Vernon 1996). Section 451.001, the Anti-Retaliation Law, is a statutory exception to the Texas common-law doctrine of employment at will. See Terry v. Southern Floral, 927 S.W.2d 254, 256 (Tex.App.-Houston [1 ^st Dist.] 1996, no writ). It was enacted to protect employees, entitled to workers’ compensation benefits, from being discharged for attempting to collect such benefits. See Carnation Co. v. Borner, 610 S.W.2d 450, 453 (Tex.1980). The Anti-Retaliation Law states, in part, as follows:

A person may not discharge or in any other manner discriminate against an employee because the employee has:

(1) filed a workers’ compensation claim in good faith.

Tex. Lab.Code Ann. § 451.001 (Vernon 1996).

An employee asserting a violation of section 451.001 has the burden of establishing a causal connection between the discharge and the filing of the claim for workers’ compensation benefits; in other words, without the employee’s protected conduct, the employer’s prohibited conduct would not have occurred when it did. See Continental Coffee Prod. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1997). The plaintiff need not prove the workers’ compensation claim was the sole cause of termination; the claim need only have been a determining factor in the dismissal. See Castor v. Laredo Community College, 963 S.W.2d 783, 785 (Tex.App.-San Antonio 1998, no pet.). Causation may be established by direct and circumstantial evidence and the reasonable inferences drawn from such evidence. See id. Circumstantial evidence includes, but is not limited to: (1) knowledge of the compensation claim by those making the decision on termination; (2) expression of a negative attitude toward the employee’s injured condition; (3) failure to adhere to established company policies; (4) discriminatory treatment in comparison to similarly situated employees; and (5) evidence that the stated reason for the discharge was false. See Continental Coffee Products v. Cazarez, 937 S.W.2d 444, 451 (Tex.1996). Once the employee has established the causal link, the burden shifts to the employer to rebut the alleged improper termination by demonstrating a legitimate reason for the discharge. See Castor, 963 S.W.2d at 785. Thereafter, in order to survive a motion for summary judgment, the employee must produce controverting evidence of a retaliatory motive, thereby raising a material issue of fact. See Texas Division-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 313 (Tex.1994).

*3 In her sole point of error, Taylor argues that because a causal connection between the discharge and the filing of her claim for workers’ compensation benefits exists, summary judgment was improper. Taylor does not challenge on appeal the granting of the summary judgment on the basis that a genuine issue of material fact exists regarding the legitimacy of First Bank’s neutral reason for Taylor’s termination. First Bank did not argue in its motion for summary judgment that Taylor failed to discharge her initial burden of showing a causal link existed between Taylor’s workers’ compensation claim and her termination. Therefore, the trial court did not rely on the absence of a causal link in granting summary judgment, and we will assume that a fact issue exists concerning whether the link exists. See McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 342 (Tex.1993) (approving holding in a court of appeals opinion stating trial court could not have granted summary judgment on grounds not included in the motion, and reviewing court could not uphold the judgment on unstated grounds).

B. Neutral Reason For Termination

However, in its motion for summary judgment, First Bank submitted summary judgment proof showing a legitimate, non-discriminatory basis for terminating Taylor. First Bank attached to its motion, among other summary judgment proof, the affidavit of Gary Karter, Executive Vice-President of First Bank at the time it was made. Mr. Karter stated the reason for the decision to terminate Ms. Taylor was not because she had filed a workers’ compensation claim. He stated she had been absent for almost two years following the date of her injury in May 1992, and at the time of her termination in April 1994, there was no indication she would be able to return to work in the foreseeable future. Mr. Karter’s affidavit also states that the decision to terminate Ms. Taylor’s employment was based solely on those factors.

Further, during Mr. Karter’s oral deposition, excerpts of which were attached to First Bank’s motion for summary judgment, he was asked to describe the events at the meeting where the decision was made to terminate Taylor. He replied that the primary reason for the decision was that it was believed that she was not going to return to work because almost two years had elapsed since her injury. He concluded by saying that the decision was to terminate her leave of absence because it had been too long. Later during the deposition, in response to an inquiry as to whether he had revealed each and every reason that had entered his mind regarding the basis for terminating Ms. Taylor, Mr. Karter responded that it boiled down to the length of time she had been out and that it was not believed she wanted to return.

Where a judgment may rest upon more than one ground, the party aggrieved by the judgment must assign error to each ground or the judgment will be affirmed on the ground to which no complaint is made. See Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex.1970); Fields v. City of Texas City, 864 S.W.2d 66, 68 (Tex.App.-Houston [14 ^th Dist.] 1993, writ denied). Here, the only ground stated in First Bank’s motion for summary judgment is that it was entitled to judgment as a matter of law because it had a legitimate, non-discriminatory reason for terminating Taylor. In Carrozza, the Supreme Court held that summary judgment may be based on the employer’s neutral explanation for the termination, where the employee failed to respond with proof of facts and circumstances contradicting that neutral explanation. See Carrozza, 876 S.W.2d at 314. Therefore, the trial court below was authorized to grant summary judgment on the neutral explanation for Taylor’s termination provided by First Bank in its summary judgment motion.

*4 However, Taylor’s entire brief on appeal is limited to the argument that a fact issue exists regarding the existence of a causal connection between the filing of her workers’ compensation claim and her termination. We have already accepted that a fact issue exists as to that issue. However, in order for this court to be able to reverse the trial court’s judgment in favor of First Bank, it is imperative that Taylor assign error on appeal to a ground for summary judgment presented to the trial court upon which summary judgment could be based. See San Jacinto River Authority v. Duke, 783 S.W.2d 209, 210 (Tex.1990). Grounds of error not asserted by points of error or argument in the court of appeals are waived. See id. A court of appeals may not reverse a trial court’s judgment in the absence of properly assigned error. See id. Indeed, in an appeal from a summary judgment, failure by the appellant to address each theory that might support the trial court’s entry of judgment requires an affirmance. See Tindal v. Jackson Nat’l Life Ins. Co., 837 S.W.2d 795, 801 (Tex.App.-Dallas 1992, no writ).

Further, Taylor’s response to the motion for summary judgment concludes with the following statement summarizing her argument: “Plaintiff has presented competent summary judgment evidence in her response to the motion for summary judgment to establish a prima facie case and a causal link between the discharge and the filing of Plaintiff’s claim for workers’ compensation benefits.” It therefore appears that, in addition to failing to assign error in this court to the neutral reason stated by First Bank for her termination, Taylor also failed to raise that issue before the trial court, thus failing to preserve the issue for appellate review. See Tex.R.App. P. 33.1. Issues not expressly presented to the trial court may not be considered on appeal as grounds for reversal of a summary judgment. See City of Houston, 589 S.W.2d at 675.

Conclusion

Inasmuch as Taylor has failed to bring a point of error challenging a ground upon which judgment could have been based, in addition to failing to preserve error for review by this court regarding the validity of the neutral reason given by First Bank for her termination, we may not sua sponte reverse the trial court’s judgment. See San Jacinto River Authority, 783 S.W.2d at 210 (reversing judgment of court of appeals for sua sponte reversing summary judgment on grounds neither raised in opposition to the motion at the trial court level, nor presented to the court of appeals by brief or argument). Accordingly, we are constrained to overrule Taylor’s sole point of error, and affirm the judgment of the trial court.

	Footnotes
1		Senior Justice Joe L. Draughn sitting by assignment.