Court of Appeals of Texas, Amarillo.

Rosie JEFFERSON, Appellant,

v.

PLAINS COTTON COOPERATIVE ASSOCIATION, Appellee.

No. 07-98-0302-CV.

|

April 25, 2000.

Before BOYD, C.J., and QUINN and JOHNSON, JJ.

OPINION

JOHNSON.

*1 Appellant Rosie Jefferson sued appellee Plains Cotton Cooperative Association (Plains) alleging that she was discharged in retaliation for filing a workers’ compensation claim. Jefferson appeals from a summary judgment entered in favor of Plains. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Jefferson was employed by Plains from August 2, 1976, to September 18, 1995. Plains is a subscriber under the Texas Workers’ Compensation Act.¹ On March 3, 1993, Jefferson suffered a work-related injury to her right shoulder. Jefferson subsequently filed a workers’ compensation claim and continued her employment with Plains. Due to her shoulder injury, Jefferson went on a leave of absence from October 20, 1994, to November 4, 1994. Plains sent a reminder letter, which Jefferson received, regarding its leave-of-absence policy when an employee began or received an extension of a leave of absence. The leave of absence policy provided in part:

Should an employee on a Leave of Absence accept other employment, file for unemployment insurance, or fail to return to work on or before the approved expiration date without obtaining an approved extension, the Company will assume that the employee has voluntarily terminated their services and the employees [sic] name will be removed from the payroll.

Jefferson timely extended her leave twice until November 23, 1994. On November 23, 1994, Jefferson returned to work and performed light duty activities.

Jefferson again went on a leave of absence for her shoulder injury from March 4, 1995, to April 16, 1995. Jefferson timely requested extensions of leave on five occasions,² and Plains ultimately extended her leave to September 17, 1995. Jefferson alleges she visited her doctor on Friday, September 15, and was informed that she would be admitted to a hospital for shoulder surgery on the morning of Monday, September 18. Jefferson claims that after her doctor’s appointment, she drove to the Plains plant to obtain an extended leave of absence, but the plant was locked. Jefferson asserts that later that same evening she attempted to telephone the plant nurse regarding an extension, but was unable to reach anyone. Jefferson also claims that on Saturday, September 16, she telephoned the Plains plant, but either the line was busy, or the line was not answered after it rang several times. Jefferson underwent surgery on her right shoulder on September 18, as scheduled. Plains terminated Jefferson’s employment on September 18, because she did not comply with the company’s leave of absence policy when she failed to request an extension of her leave.

On June 16, 1997, Jefferson filed suit claiming that she was discharged in retaliation for filing her workers’ compensation claim .³ Plains filed a motion for summary judgment on December 2, 1997, then filed an amended motion on March 3, 1998. Jefferson filed a motion for summary judgment on December 29, 1997. The trial court granted Plains’ amended motion for summary judgment without specifying the basis for its ruling, and denied Jefferson’s motion for summary judgment. On appeal Jefferson urges that the trial court erred in granting Plains’ motion for summary judgment, but does not assert that the trial court erred in denying her motion for summary judgment. Thus, we are only required to consider whether the trial court properly rendered summary judgment for Plains. See generally, Truck Ins. Exch. v. E.H. Martin, Inc., 876 S.W.2d 200, 203 (Tex.App.-Waco 1994, writ denied).

*2 Plains moved for a no-evidence summary judgment under Rule 166a(i) as well as a traditional summary judgment under Rule 166a(c). Plains contended in its original and amended motion for summary judgment, and in response to Jefferson’s motion for summary judgment, that Jefferson’s discharge was based on a neutral application of Plains’ leave of absence policy and did not constitute retaliatory discharge. In support of its contention, Plains relies on Texas Division-Tranter, Inc. v. Carrozza, 876 S .W.2d 312 (Tex.1994) (per curiam); Continental Coffee Products Co. v. Cazarez, 937 S.W.2d 444 (Tex.1996); and Terry v. Southern Floral Co., 927 S.W.2d 254 (Tex.App.-Houston [1st Dist.] 1996, no pet.). Plains’ motion for summary judgment further asserted that there was no evidence to support a causal connection between Jefferson’s termination and her filing of a workers’ compensation claim.

In support of its motion for summary judgment, Plains attached the affidavits of several administrative and managerial employees. Each of the affidavits stated in part that Plains terminated all employees who failed to return to work on or before the approved extension date without obtaining an approved extension, regardless of whether the employee filed a workers’ compensation claim. Jefferson contends that (1) the affidavits were not proper summary judgment evidence because the employees were “interested witnesses,” and (2) Plains did not present any competent summary judgment evidence establishing that the leave of absence policy was enforced neutrally throughout the company. Jefferson responded to Plains’ summary judgment motion by asserting that she made a good-faith effort to notify Plains about her need for a leave extension, but was not able to do so because Plains’ telephone system was unreliable. In support of her motion for summary judgment and in response to Plains’ motions for summary judgment, Jefferson attached affidavits which she and her husband executed. Both of the affidavits claim that (1) Jefferson became aware that she would need shoulder surgery on Friday, September 15; (2) Jefferson was aware that she would need to obtain an extension of her leave; and (3) Jefferson made repeated attempts, but was not able to reach anyone at the Plains plant about her leave extension. Jefferson’s husband’s affidavit also asserted that he was formerly employed by Plains and that he had personal knowledge that its telephone system was unreliable.⁴

STANDARD OF REVIEW

A. Traditional Motion for Summary Judgment

To prevail on a motion for summary judgment, a party must conclusively establish the absence of any genuine issue of material fact and that the party is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(c). We review the granting of a summary judgment by the trial court using the standards set out in Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985):

1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.

*3 2. In determining whether there is a disputed issue of material fact precluding summary judgment, evidence favorable to the non-movant will be taken as true.

3. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor.

If the movant for summary judgment is a defendant, in order to be entitled to summary judgment, the movant must disprove at least one of the elements of the non-movant’s cause of action, or, alternatively, the movant must prove each element of an affirmative defense. Randall’s Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995).

The non-movant has the burden to respond to the motion for summary judgment and present to the trial court any issues that would preclude summary judgment. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979). Issues which the non-movant contends preclude the granting of a summary judgment must be expressly presented to the trial court by written answer or other written response to the motion and not by mere reference to summary judgment evidence. McConnell v. Southside Sch. Dist., 858 S.W.2d 337, 341 (Tex.1993). Issues not expressly presented to the trial court in writing shall not be considered on appeal as grounds for reversal. Tex.R.Civ.P. 166a(c). Further, all theories in support of or in opposition to a motion for summary judgment must be presented in writing to the trial court. Casso v. Brand, 776 S.W.2d 551, 553 (Tex.1989).

If the trial court does not specify the basis on which it granted summary judgment, the judgment will be affirmed if any of the grounds in the motion are meritorious. State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex.1993). If the order granting the motion for summary judgment specifies the basis on which the judgment was granted, then the rule that we must affirm the judgment of the trial court if any of the grounds urged for summary judgment are meritorious does not apply. See Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex.1995).

B. No Evidence Motion for Summary Judgment

After adequate time for discovery, a party may move for a summary judgment as to all or any part of a lawsuit on the basis that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. Tex.R.Civ.P. 166a(a),(b),(i). A no-evidence summary judgment is essentially a pretrial directed verdict, and we apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict. Aguirre v. South Texas Blood & Tissue Center, 2 S.W.3d 454, 456 (Tex.App.-San Antonio 1999, pet. denied); Roth v. FFP Operating Partners, L.P., 994 S.W.2d 190, 195 (Tex.App.-Amarillo 1999, pet. denied). We review the evidence in the light most favorable to the respondent against whom the no-evidence summary judgment was rendered, disregarding all contrary evidence and inferences. Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997), cert. denied, ___ U.S. ____, 118 S.Ct. 1799, 140 L.Ed.2d 939 (1998); Roth, 994 S.W.2d at 195. A no-evidence summary judgment is improperly granted if the non-movant presents more than a scintilla of probative evidence to raise a genuine issue of material fact as to the element on which the motion is based. Merrell Dow, 953 S.W.2d at 711; Roth, 994 S.W.2d at 195. More than a scintilla of evidence exists when such evidence rises to a level that would enable reasonable and fair-minded persons to differ in their conclusions. Merrell Dow, 953 S.W.2d at 711; Roth, 994 S.W.2d at 195. Less than a scintilla of evidence exists to support a fact when the evidence is so weak as to do no more than create a mere surmise or suspicion of the fact. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983).

LAW

*4 A plaintiff has the burden to prove an alleged retaliatory discharge occurred because of the protected activity provided for in the Texas Workers’ Compensation Act. Continental Coffee Products Co., 937 S.W.2d at 450; see Tex.Lab.Code Ann. § 451.001 (Vernon 1996). For the discharge to have been retaliatory, the workers’ compensation claim must have been a determining factor in the discharge, although the claim does not have to be shown to have been the sole reason for the discharge. Trevino v. Corrections Corp. of America, 850 S.W.2d 806, 808 (Tex.App.-El Paso 1993, writ denied); Southwestern Elec. Power Co. v. Martin, 844 S.W.2d 229, 232 (Tex.App.-Texarkana 1992, writ denied); Ethicon, Inc. v. Martinez, 835 S.W.2d 826, 833 (Tex.App.-Austin 1992, writ denied).

Either direct or circumstantial evidence may be used in proving the essential element of a causal connection between the discharge and the claim for workers’ compensation benefits. See Continental Coffee Products, 937 S.W.2d at 451. A causal connection might be shown by circumstantial evidence of various factors, including evidence of: (1) knowledge of the workers’ 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. Id. If the employee establishes a causal connection, the employer has the burden to rebut the alleged discrimination by showing there was a legitimate reason for the discharge. Texas Dept. of Human Services v.Hinds, 904 S.W.2d 629, 636-37 (Tex.1995).

ANALYSIS

Although Plains’ employees may have been interested witnesses, summary judgment may be based on the uncontroverted evidence of interested witnesses, so long as the evidence is clear, positive, direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted. Tex.R.Civ.P. 166a(c). The phrase “could have been readily controverted” does not mean that the summary judgment evidence could have been easily and conveniently rebutted. Casso v. Brand, 776 S.W.2d 551, 558 (Tex.1989). Rather, the phrase means that the testimony at issue could have been effectively countered with opposing evidence. Id. Whether Plains applied its leave of absence and termination policy in a neutral manner could have been discovered, at a minimum, through use of appropriate discovery procedures such as relevant interrogatories and requests for production of documents. The affidavits from the Plains’ employees were not improper summary judgment evidence. See Trico Technologies Corp. v. Montiel, 949 S.W.2d 308, 310 (Tex.1997).

Jefferson claims that she had no means to disprove Plains’ affidavits relating to application of its leave of absence policy because Plains did not respond to her additional discovery requests. After Jefferson responded to Plains’ original motion for summary judgment, she sought additional discovery in connection with Plains’ application of the leave of absence policy. Plains objected to portions of the discovery inquiries. After Plains objected to her discovery requests, however, Jefferson did not request a hearing on the objections, Tex.R.Civ.P. 166b(4), or file a motion to compel under Tex.R.Civ.P. 215(1)(b).⁵ See McKinney v. National Union Fire Ins. Co., 772 S.W.2d 72, 75 (Tex.1989). Without having presented her discovery complaint to the trial court and obtained a ruling, Jefferson has not preserved any issue concerning Plains’ objections to her discovery requests for appellate review. Tex.R.App.P. 33.1; See Kramer v. Lewisville Mem’l Hosp., 858 S.W.2d 397, 407 (Tex 1993).

*5 In support of its contention that Jefferson’s discharge does not constitute a retaliatory discharge because it was based on a neutral application of its leave of absence policy, Plains cites Texas Division-Tranter, Inc. v. Carrozza, 876 S.W.2d 312 (Tex.1994) (per curiam); Continental Coffee Products Co. v. Cazarez, 937 S.W.2d 444 (Tex.1996); and Terry v. Southern Floral Co., 927 S.W.2d 254 (Tex.App.-Houston [1st Dist.] 1996, no pet.).

In Carrozza, the plaintiff sued his former employer, alleging that he was discharged in retaliation for filing a workers’ compensation claim. Carrozza missed three consecutive days of work without obtaining permission before continuing his absence. Because Carrozza did not report to work after his leave of absence, Texas Division-Tranter (Tranter) terminated him for violating its “three-day rule” policy. Tranter moved for summary judgment, which was granted. The trial court based its decision on Tranter’s uncontroverted summary judgment evidence reflecting that Carrozza was terminated solely for violating the employer’s three-day rule. Carrozza, 876 S.W.2d at 313. The court observed that Carrozza did not present any evidence contradicting Tranter’s claim; however, he did file an affidavit containing his subjective beliefs as to why he was discharged. The court held that the affidavit was not competent summary judgment evidence. Id. at 314. The court also held that the uniform enforcement of a reasonable absence-control policy does not constitute retaliatory discharge under the Workers’ Compensation Act. Id. at 313.

In Continental Coffee Products, the plaintiff sued her former employer for allegedly discharging her in retaliation for filing a workers’ compensation claim. After taking a leave of absence for several months, Cazarez called Continental to request additional leave because she had the flu and could not return to work because she had not received molded shoe ankle supports. Cazarez did not return to work after her workers’ compensation leave expired. Continental attempted to call her, but was unable to reach her. A Continental employee later visited Cazarez’s home and was informed by her son that she was sick. Later that week, Cazarez was discharged for violating the employer’s “three day no call/no show rule.” Continental Coffee Products, 937 S.W.2d at 447. At trial, a jury found for Cazarez and awarded her actual and punitive damages. On appeal, the Texas Supreme Court noted that Continental’s three-day policy was almost identical to the three-day provision in Carrozza. The court reiterated its Carrozza holding that Continental would not be liable for retaliation under the Texas Workers’ Compensation Act if the termination was due to the uniform enforcement of a reasonable absence policy. Id. at 451-52. However, the court held there was some evidence that Cazarez did not violate the employer’s absence policy and affirmed Cazarez’s award for actual damages. Id. at 452. The court found that there was no evidence of actual malice on the part of Continental to support an award for punitive damages. Id. at 454-55.

*6 In Terry v. Southern Floral Co., Terry also claimed that she was discharged by her employer in retaliation for filing a worker’s compensation claim. Approximately ten months after Terry suffered a back injury and was unable to work, Southern Floral terminated her, but informed her that she would be given first preference for any available openings once she was given a medical release. Southern Floral did not have a specific absence-control policy in effect when Terry was terminated. Southern Floral moved for and was granted summary judgment. Terry’s supervisor stated in her summary judgment affidavit that the Southern Floral sales accounts that Terry was responsible for required more attention. As the company had no indication when Terry would be able to return to work, the supervisor stated that Southern Floral was required to hire a replacement for Terry’s position. Although Southern Floral did not have an absence-control policy, the court determined that Southern Floral’s reason for terminating Terry was legitimate and non-discriminatory. Southern Floral, 927 S.W.2d at 258. Terry countered with her own affidavit and deposition testimony, but the court noted that she did not present evidence contradicting Southern Floral’s claim and held that summary judgment in favor of Southern Floral was proper. Id. at 259.

Plains had an absence-control policy similar to the employers in Carrozza and Continental Coffee Products, in that an employee on any type of leave of absence was required to notify the employer of their continued absence in order to avoid termination. Plains presented uncontroverted summary judgment evidence that its policy was enforced uniformly throughout the company regardless of whether the employee had filed a workers’ compensation claim. Although Jefferson claims she made good-faith attempts to report her absence, Plains’ policy stated in part:

It is the employee’s responsibility to notify his Supervisor of any change in his status while on LOA [leave of absence]. Any employee on LOA must return to work on or before the approved expiration date of the leave, or contact his supervisor and request an extension of the leave (emphasis added).

Jefferson presented no evidence that she was discharged for a reason other than because she failed to comply with Plains’ leave of absence policy. Such a discharge does not constitute a retaliatory discharge under the Workers’ Compensation Act.

The affidavits submitted by Jefferson do not address the issue of whether her discharge was based to any degree on her workers’ compensation claim, or whether Plains neutrally enforced its leave of absence control policy. Jefferson did not raise a material fact issue concerning the neutral enforcement of Plains’ leave of absence policy being the basis for her discharge, nor did she produce evidence raising a material fact issue concerning a causal connection between her discharge and the filing of her workers’ compensation claim. Accordingly, we overrule Jefferson’s sole issue and affirm the judgment of the trial court.

	Footnotes
1		Tex.Lab.Code Ann. Title 5 (Vernon 1996).
2		Jefferson’s employee records reflect the following leave extensions approved by Plains in 1995: 1) April 16 to June 25; 2) June 25 to July 20; 3) July 20 to July 28; 4) July 28 to August 17; and 5) August 17 to September 17.
3		Tex.Lab.Code Ann. § 451.001 (Vernon 1996) provides, in part, that a person may not discharge or in any other manner discriminate against an employee because the employee has filed a workers’ compensation claim in good faith.
4		In support of their original and amended motion for summary judgment, the Plains’ affidavits stated, “The telephones at Plains Cotton are answered 7 days per week, 24 hours each day. At night and on weekends, the security guards answer the telephones and page individuals to notify them of calls.”
5		All cites are to the Texas Rules of Civil Procedure as they existed before January 1, 1999.