Court of Appeals of Texas, El Paso.

Gerardo GARCIA, Appellant,

v.

WRANGLER, INC., Appellee.

No. 08-98-00255-CV.

|

Aug. 29, 2000.

Before LARSEN, McCLURE, and CHEW, JJ.

OPINION

CHEW

*1 Gerardo Garcia appeals from a summary judgment entered against him in his suit against his former employer, Appellee, Wrangler, Inc. Garcia presents one issue for review before this Court: that the trial court erred in granting Appellee’s motion for summary judgment because it failed to consider the complete language of Appellee’s “Guidelines for Working Together,” which created a genuine issue of fact. We will affirm the judgment of the trial court.

Gerardo Garcia worked for Wrangler, Inc. as an order filler. In November of 1995, he suffered a back injury while at work. He reported the injury to his supervisor the next day, was seen by a physician, and given a three-day rest period. The physician told Garcia he could return to work after the three-day period, but told him to perform light duty work for the next six weeks.

In November of 1996, Garcia reported to his supervisor that he felt ill, and left work on a Wednesday afternoon. Garcia called his supervisor on Thursday and informed him that he still did not feel well. Garcia did not contact his employer again, but showed up for work over a week later, on the following Friday. At that time, Garcia was informed that he was terminated from employment with Wrangler, Inc.

Unlike other final judgments reviewed on appeal, we do not review the summary judgment evidence in the light most favorable to the judgment of the trial court. See Borrego v. City of El Paso, 964 S.W.2d 954, 956 (Tex.App.-El Paso 1998, pet. denied). As explained in Nixon v. Mr. Property Management Co., Inc., 690 S.W .2d 546, 548-49 (Tex.1985), the movant for summary judgment has the burden of showing there is no genuine issue of material fact and that it is entitled to summary judgment as a matter of law. See Tex.R.Civ.P. 166a(c). In deciding whether there is a disputed material fact issue precluding summary judgment, all admissible evidence favorable to the non-movant will be taken as true; every reasonable inference must be indulged in favor of the non-movant, and all doubts resolved in the non-movant’s favor. The movant is required to disprove at least one element of each of the non-movant’s theories of recovery or to plead and conclusively establish an affirmative defense, which defeats the non-movant’s cause of action. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 679 (Tex.1979). The purpose of summary judgment is the elimination of patently unmeritorious claims or untenable defenses; it is not intended to deprive litigants of their right to a full hearing on the merits of any real issue of fact. See Gulbenkian v. Penn., 151 Tex. 412, 416, 252 S.W.2d 929, 931 (1952); Hon. David Hittner & Lynne Liberato, Summary Judgments in Texas, 34 Hous.L.Rev. 1303, 1307 (1998).

Appellant filed suit alleging that he was terminated for filing a Worker’s Compensation claim, which is a violation of the Texas Labor Code. See Tex.Lab.Code Ann. § 451.001 (Vernon 1996). Wrangler, Inc. contended in its motion for summary judgment that it legitimately terminated Garcia for violating “a three-day no call, no show rule,” and for no other reason. Wrangler, Inc. included a copy of its “Guidelines for Working Together,” which explains that an employee may be terminated after a three-day absence without notice, unless the employee has an outstanding record of good attendance. Wrangler, Inc. also attached the affidavit of Jesus Oropeza, the Area Human Resources Manager. He stated in his affidavit that Wrangler, Inc. enforces the three-day no call, no show rule “as to all employees who fail to notify their supervisor of absences for three consecutive days.” Oropeza further stated that in 1995 and 1996, a total of sixteen employees were terminated from employment for violating the three-day, no call no show rule. Of those employees, six, including Gerardo Garcia had previously filed Workers’ Compensation claims. The other ten had not.

*2 In his response to Wrangler, Inc.’s motion, Garcia filed an affidavit stating that he had an outstanding attendance record, and that his supervisor had told him to take as much time as he needed to recover. He further stated that because of his attendance record, he should not have been fired and additionally, that he had one week of vacation time available from which Wrangler, Inc. could have taken his absences. Finally, he states that Wrangler, Inc. should not have fired him because they knew he was missing work due to the back injury he had sustained at work a year earlier.

In Texas Division-Tranter, Inc. v. Carrozza, 876 S.W.2d 312 (Tex.1994), the Supreme Court held that an employer that enforces a uniform termination policy is not liable for an employee’s termination if the employer provides evidence of a non-retaliatory discharge, and the employee fails to provide evidence of retaliation. See Carrozza, 876 S.W.2d at 313-14. Here, as in Carrozza, Wrangler, Inc. provided evidence that shows that Garcia was terminated as part of the uniform enforcement of the three-day, no call, no show rule. Garcia has failed to provide any evidence that would tend to controvert Wrangler, Inc.’s evidence that the motive for his discharge was something other than the enforcement of the policy. In his affidavit, he does not deny that he violated the policy, he simply makes conclusory statements that he had an outstanding attendance record that should have prevented his termination. He further states that Wrangler, Inc. knew he was absent due to his previous injury but provides no evidence to demonstrate that Wrangler, Inc. had this knowledge. These statements are mere conclusions, and are not competent summary judgment that controverts the evidence provided by Wrangler, Inc. which established a non-retaliatory motive for his discharge. See Carrozza, 876 S.W.2d at 314. The trial court did not err in granting summary judgment for Wrangler, Inc. in light of the language contained in the “Guidelines for Working Together.” We affirm the judgment of the trial court.