Court of Appeals of Texas, Houston (1st Dist.).

Raymond HILL, Appellant,

v.

METROPOLITAN TRANSIT AUTHORITY, Appellee.

No. 01-00-00115-CV.

|

Jan. 18, 2001.

Panel consists of TAFT, BRISTER, and JENNINGS, JJ.

OPINION

TAFT.

*1 Appellant, Raymond Hill, challenges a judgment in favor of appellee, Metropolitan Transit Authority (“Metro”). Hill contends the trial court improperly rendered summary judgment in Metro’s favor in his suit for wrongful termination. We review: (1) whether Hill’s termination violated his agreement with Metro; and (2) whether Hill was terminated for a discriminatory reason. We affirm in part, and reverse in part and remand the cause.

Facts

Hill worked as a journeyman mechanic for Metro. In May of 1996, Metro terminated Hill for being absent from work without leave (AWOL). Hill filed a grievance, challenging his termination. On August 6, 1996, Hill and Metro agreed to reinstate Hill on the express condition he would be subject to termination if he were to be AWOL within the 12 month period following his return to work.

Following his return, Hill was scheduled to work the 10:30 pm to 7:00 am shift. On August 18, 1996, Hill arrived at work approximately 30 minutes late, and was counseled by Vince Taylor, his supervisor. Hill claims he aggravated a previous injury on August 19, 1996, and maintains he reported the injury to Taylor, which Taylor denies. On August 20, 1996, Hill was supposed to report to work at 10:30 pm. Hill claims he called Metro at 12:20 am, and informed a co-worker he was going to be in later.¹ After Hill arrived at work at 1:38 am, Taylor told him he was AWOL, and sent him home.

Following Taylor’s advice, Hill returned the following morning and met with Donna La Force, the superintendent. Hill claims he told La Force and several other Metro representatives of his recent injury during the meeting. Metro disputes it received notice of Hill’s injury at that point. Metro terminated Hill on August 23, 1996 because his AWOL violated the agreement he had signed in early August.

On October 30, 1996, following the rejection of a grievance the Transport Workers’ Union filed on his behalf, Hill filed a claim with the Texas Workers’ Compensation Commission (“TWCC”) for the injury he allegedly sustained on August 19, 1996. The TWCC determined Hill first gave notice of his injury to Metro on September 6, 1996.

Hill sued Metro, alleging he was terminated because of the claim he filed with the TWCC. Both Hill and Metro moved for summary judgment. The trial court granted Metro’s motion for summary judgment.

Standard of Review

We review the granting of summary judgment under the usual standard of review. See Nixon v. Mr. Prop. Management Co., 690 S.W.2d 546, 548-49 (Tex.1985).

Breach of Contract

In his first point of error, Hill asserts the trial court erred by granting Metro’s motion for summary judgment because there were genuine issues of material fact. We construe Hill’s argument to mean that, because Hill was merely tardy, rather than AWOL, he should not have been subject to termination under the terms of his agreement with Metro. Consequently, Hill contends Metro breached the employment agreement when it terminated him.

*2 Under the terms of his August 6, 1996 agreement with Metro, Hill would be subject to termination if he was AWOL within the 12-month period following his return to work.² The agreement did not define the term AWOL. Metro admits, however, that its “Employee Performance Code and Work Rules” amounts to a contract between Metro and its hourly employees. Because Hill was an hourly employee when he worked for Metro, we construe the “Employee Performance Code and Work Rules” as the employment contract between Hill and Metro.

In determining whether summary judgment is proper based upon a contract, the trial court must first determine whether the contract is ambiguous. Hussong v. Schwan’s Sales Enter.’s, Inc., 896 S.W .2d 320, 324 (Tex.App.-Houston [1st Dist.] 1995, no writ). If the contract is worded so that it can be given a certain and definite meaning or interpretation, it is not ambiguous; the court will construe the contract as a matter of law. GT & MC, Inc. v. Texas City Ref. Inc., 822 S.W.2d 252, 255-56 (Tex.App.-Houston [1st Dist.] 1991, writ denied). To the contrary, when the contract contains an ambiguity, the granting of a motion for summary judgment is improper because the interpretation of the instrument becomes a fact issue. Coker v. Coker, 650 S.W.2d 391, 394 (Tex.1983). A contract is ambiguous when it is subject to two or more reasonable interpretations. See Columbia Gas Trans. Corp. v. New Ulm Gas, 940 S.W.2d 587, 589 (Tex.1996).

In this case, article 1102 of the Employee Performance Code and Work Rules describes the AWOL procedures:

MAINTENANCE OR SERVICE DEVELOPMENT

When Maintenance or Scheduling employees are going to be absent, they must notify their Supervisor/Foreman or Superintendent that they will be absent and the reason for their absences, at least thirty (30) minutes before their scheduled report time. However, employee [sic] must receive authorization from proper authority to be absent from work, in order to avoid a charge of AWOL.

Hill argues he did not violate article 1102 because he did not intend to be absent from work on August 20, 1996, but was merely tardy. Accordingly, Hill maintains that article 1101-A, dealing with employee tardiness, should apply to his case. Article 1101-A provides:

Tardiness shall subject employee to management counseling or progressive discipline as indicated below. Tardy incidents within a floating twelve (12) month period.

1-4 incidents:	Management counseling.
5th incident:	Reprimand.
6th incident:	3-day suspension.
7th incident:	5-day suspension.
8th incident:	Discharge.

Under this article, an employee is not subject to discharge unless he has been tardy eight times within a 12-month period. Because there is no evidence that the August 20, 1996, was his eighth tardiness incident, Hill argues he should not have been terminated, and that Metro breached their employment agreement by terminating him.

*3 Metro argues that showing up for work more than three hours late is not mere tardiness, but amounts to absence from work. Metro points out that, because of the nature of the work, namely the maintenance of a fleet of buses on a strict schedule, a bus mechanic is considered tardy if he arrives within the first 30 minutes of the shift, i.e., before the work assignments are issued. Moreover, John Franks, Metro’s Director of Preventive Maintenance, testified that a mechanic who arrives three hours late for his shift is normally directed to go home.

We find that both Hill’s and Metro’s interpretation of AWOL are reasonable in light of article 1102 of the Employee Performance Code and Work Rules. Therefore, the interpretation of the term “AWOL” is a fact issue. Moreover, because articles 1101-A and 1102 do not define the distinction between “AWOL” and “tardy,” there is a question of fact regarding the meaning of these terms. See Columbia Gas, 940 S.W.2d at 589. Accordingly, the court erred by concluding Metro did not breach the agreement it had with Hill.

We sustain Hill’s first point of error.

Retaliation

In his second point of error, Hill asserts the trial court erred when it granted Metro’s motion for summary judgment because Metro terminated him in retaliation for his filing a workers’ compensation claim. Invoking section 451 of the Labor Code, Hill argues there is circumstantial evidence to raise a fact issue that Metro terminated him for a discriminatory reason. See Tex.Lab.Code Ann. § 451.001 (Vernon 1996). Although Hill asserts this circumstantial evidence consists of witnesses’ statements, the actions of Metro agents, documents, and the employment contract, he does not articulate how these elements tend to show that Metro fired him for a discriminatory reason.

An employer is entitled to summary judgment in a section 451 retaliatory discharge action when the employer asserts a legitimate, nondiscriminatory reason for the discharge, and the employee does not produce evidence of a retaliatory motive. See Texas Division-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 313 (Tex.1994). In this case, Metro asserts it terminated Hill for violating the agreement under which he was bound not to be AWOL in the 12 months following his August 1996 reinstatement. While we have held there is a fact issue whether Metro violated its contract with Hill, we did find that Metro’s explanation that it terminated Hill for being AWOL was reasonable. Moreover, Hill’s former supervisors submitted affidavits in which they denied having a retaliatory motive for terminating Hill.

Hill did not produce any evidence that Metro had a retaliatory motive when it terminated him. Because the reinstatement agreement permits equally plausible interpretations, Hill’s assertion that he was terminated in violation of the reinstatement agreement does not constitute evidence he was terminated for a retaliatory reason. Hill’s subjective beliefs are no more than conclusions and are not competent summary judgment evidence. See id. at 314. Accordingly, the trial court did not err by concluding Metro terminated Hill for a nondiscriminatory reason.

*4 We overrule Hill’s second point of error.

Conclusion

We affirm the judgment of the trial court in part, and we reverse in part and remand the cause.

	Footnotes
1		Hill claims he first called at 12:10 am, but no one had answered the phone. Metro claims he called at 12:45 am.
2		The Agreement provided that: “In addition, it is understood by the parties that the Grievant [Hill] shall be subject to termination if he is AWOL within the twelve-month period following his return to work.”