Court of Appeals of Texas, El Paso.

Mario MARTINEZ, Appellant,

v.

EL PASO TOOL & DIE CO., INC., Appellee.

No. 08-99-00459-CV.

|

Aug. 31, 2000.

OPINION

McCLURE

*1 The question before us in this worker’s compensation retaliation case is whether the employer’s reason for termination is non-discriminatory as a matter of law. Tex.Lab.Code Ann. § 451.001 (Vernon 1996). Mario Martinez appeals from a summary judgment entered in favor of El Paso Tool & Die Co., Inc. (“EPTD”). We affirm.

SUMMARY OF THE EVIDENCE

EPTD is a custom metal stamping company and has been in El Paso for over twenty-five years. It has five different departments: shipping-receiving, tool and die repair, maintenance, production, and the powder paint line. During most of its history, EPTD has had only one eight-hour work shift running from 5:30 a.m. until approximately 3 p.m. Customer orders determine whether overtime help or a second shift is necessary. When work orders increase, overtime is added to extend the first work shift, and in exceptional cases, a second shift is added. When work orders decrease, cutbacks are made. EPTD maintains a core of its own employees; however, when more help is needed it seeks additional workers from temporary staffing agencies.

Martinez originally came to work at EPTD from a temporary agency. In April 1991, EPTD hired Martinez to work as a supervisor in its welding department. He worked there for a number of years before welding work was discontinued. Thereafter, Martinez was given various jobs in many areas of the company. At different times he painted walls, helped in the shipping department, made deliveries and pick ups, and had other smaller jobs. EPTD management indicated that they constantly tried to find work for Martinez.

The record reflects that EPTD issued four written warnings to Martinez during the course of his employment. Three separate warnings admonished his excessive tardiness and poor attendance. One warning ordered him to stop selling burritos and floral arrangements on company time. In the same warning, he was also criticized for his failure to properly supervise welding operations which resulted in rejection of a $1,600 shipment.¹ EPTD admits it had no major complaints about Martinez’s actual work performance other than his chronic tardiness. In fact, EPTD treated Martinez favorably by making loans to him on six different occasions. The loans ranged from $300 to $700, and it is undisputed that he was the only employee to receive loans from the company.

Despite the fact that Martinez denied having filed any worker’s compensation claims in the past, there is evidence that he had filed three claims involving a foot injury, a cut to his hand, and a back injury. When asked whether he remembered filing claims in February 1992, June 1993, or January 1995, he could not recall. On October 31, 1996, Martinez slipped off a stepladder, fell, and injured his knee. At the time, he was painting walls because there was nothing else for him to do. After learning about the injury, EPTD filed a worker’s compensation report. Martinez was unable to work from the date of the injury until November 26, 1996. He returned to work on light duty status on November 27.

*2 At the time of the injury, work orders were high and the company created a second shift to meet the demand for production. When Martinez returned to work, EPTD created a job for him on the second shift. He worked as a “gofer” doing odd jobs, and he also operated a forklift for a few hours. Although demand remained high for a number of months, it had declined by September 1997, and EPTD decided to eliminate the second shift which at that point had existed for about nine months. Approximately twenty to thirty positions were due to be eliminated.

EPTD attempted to consolidate its employees into the first shift and to eliminate as many temporary employees as possible. On September 2, 1997, the president of EPTD, Kurt Stegemann, informed Martinez that his job was being eliminated. He offered Martinez a job on the first shift, told him to walk around and identify another job held by a temporary employee that he would like to have, and suggested he take a few days to think it over. Company officials explained to Martinez that he might receive less pay depending upon which job he accepted. All parties agree that Stegemann made the offer; however, they disagree about what happened next. On one hand, EPTD contends Martinez did not like any of the jobs he was offered, refused to take a new job, and quit. On the other hand, Martinez alleges that he returned to work on September 3 ready to accept a job grinding boxes, but EPTD terminated him without allowing him to accept a job.

It is uncontroverted that the second shift continued to operate for three to four weeks after Martinez was no longer employed. During this time, a press operator drove the forklift when it was needed on the second shift. The second shift was then eliminated and remained inactive for over a year. Toward the end of December 1998, work orders increased and the second shift was reinstituted. It is uncontroverted that EPTD did not employ a separate forklift operator for the newly-created second shift.

In January 1998, Martinez filed suit against EPTD for wrongful termination. On September 22, 1999, the trial court granted summary judgment without specifying its reasons. This appeal follows.

STANDARD OF REVIEW

The standard of review on appeal of a summary judgment is whether the successful movant at the trial level carried its burden of showing that there is no genuine issue of material fact and that judgment should be granted as a matter of law. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991); Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 548 (Tex.1985); Lee v. Levi Strauss & Co., 897 S.W.2d 501, 503 (Tex.App.-El Paso 1995, no writ). Thus, the question on appeal is not whether the summary judgment proof raises fact issues as to required elements of the movant’s cause or claim, but whether the summary judgment proof establishes, as a matter of law, that there is no genuine issue of material fact as to one or more elements of the movant’s cause or claim. Gibbs v. Gen. Motors Corp., 450 S.W.2d 827, 828 (Tex.1970).

*3 In resolving the issue of whether the movant has carried this burden, all evidence favorable to the non-movant must be taken as true and all reasonable inferences, including any doubts, must be resolved in the non-movant’s favor. Nixon, 690 S.W.2d at 548-49; Duran v. Furr’s Supermarkets, Inc., 921 S.W.2d 778, 784 (Tex.App.-El Paso 1996, writ denied). Where the defendants are the movants and they submit summary judgment evidence disproving at least one essential element of each of plaintiff’s causes of action, then summary judgment should be granted. Perez, 819 S.W.2d at 471; Bradley v. Quality Service Tank Lines, 659 S.W.2d 33, 34 (Tex.1983); Lee, 897 S.W.2d at 503-04. Alternatively, the defendant-movant must conclusively establish each essential element of an affirmative defense. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex.1995); Traylor v. Unitedbank Orange, 675 S.W.2d 802, 804 (Tex.App.-Beaumont 1984, writ ref’d n.r.e.). When the summary judgment order does not state the specific grounds on which it was granted, the non-movant on appeal must show that each ground alleged in the motion is insufficient to support the granting of the summary judgment. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989); Duran, 921 S.W.2d at 784; Carlisle v. Philip Morris, Inc., 805 S.W.2d 498, 518 (Tex.App.-Austin 1991, writ denied).

RETALIATORY DISCHARGE

Martinez claims he was discharged by EPTD in violation of Section 451.001 of the Texas Labor Code for having filed a worker’s compensation claim. Section 451.001 is a statutory exception to the Texas common law doctrine of employment-at-will. Terry v. Southern Floral Co., 927 S.W.2d 254, 256 (Tex.App.-Houston [1st Dist.] 1996, no pet.). The purpose of the statute is “to protect persons who are entitled to benefits under the Worker’s Compensation Law and to prevent them from being discharged by reason of taking steps to collect such benefit.” Carnation Co. v. Borner, 610 S .W.2d 450, 453 (Tex.1980). The statute provides:

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;

(2) hired a lawyer to represent the employee in a claim;

(3) instituted or caused to be instituted in good faith a proceeding under Subtitle A; or

(4) testified or is about to testify in a proceeding under Subtitle A.

Tex.Lab.Code Ann. § 451.001. Unless one of the four specific circumstances in the article motivated the employer to discharge the employee, that employee cannot prevail on a claim based on this article. Terry, 927 S.W.2d at 257.

This Court has previously held that in a wrongful termination case, the employee has the burden of establishing a causal connection between the termination and his claim for worker’s compensation benefits. Wyler Industrial Works, Inc. v. Garcia, 999 S.W.2d 494, 500 (Tex.App.-El Paso 1999, no pet.); Urquidi v. Phelps Dodge Refining Corp., 973 S.W.2d 400, 403 (Tex.App.-El Paso 1998, no pet.); Investment Properties Management, Inc. v. Montes, 821 S.W.2d 691, 694 (Tex.App.-El Paso 1991, no writ); Paragon Hotel Corp. v. Ramirez, 783 S.W.2d 654, 658 (Tex.App.-El Paso 1989, writ denied). We also concluded in Montes that the employee need not prove that the compensation claim was the sole cause of the termination; he merely has to show that it contributed to the employer’s decision to terminate him. Montes, 821 S.W.2d at 694; Mid-South Bottling Co. v. Cigainero, 799 S.W.2d 385, 390 (Tex.App.-Texarkana 1990, writ denied). Agreeing that the plaintiff need not prove that his filing of a worker’s compensation claim was the sole cause of his termination, the Supreme Court articulated the standard of causation for anti-retaliation cases under Section 451.001 of the Labor Code: the employee’s protected conduct must be such that, without it, the employer’s prohibited conduct would not have occurred when it did. Continental Coffee Products Co. v. Cazarez, 937 S.W.2d 444, 450-51 (Tex.1996).

*4 Establishing a causal connection is an element of the employee’s prima facie case. Terry, 927 S.W.2d at 257. The connection may be established by direct or circumstantial evidence. Garcia, 999 S.W.2d at 500; Montes, 821 S.W.2d at 694. Circumstantial evidence that has been recognized as supporting a finding of unlawful discrimination includes:

• the employer’s knowledge of the compensation claim by those making the decision to terminate;

• a negative attitude towards the employee’s injured condition;

• failure to adhere to established company policies;

• discriminatory treatment of the injured employee in comparison to similarly situated employees; and

• providing incentives to refrain from reporting on-the-job injuries.

Urquidi, 973 S.W.2d at 403-04; Montes, 821 S.W.2d at 694-95; Paragon, 783 S.W.2d at 658-59; see America West Airlines, Inc. v. Tope, 935 S.W.2d 908, 912-13 (Tex.App.-El Paso 1996, no writ). Once the link is established, it is the employer’s burden to rebut the alleged discrimination by showing there was a legitimate reason behind the discharge. Terry, 927 S.W.2d at 257; Montes, 821 S.W.2d at 694; Hughes Tool Co. v. Richards, 624 S.W.2d 598, 599 (Tex.Civ.App.-Houston [14th Dist.], writ ref’d n.r.e.), cert denied, 456 U.S. 991, 102 S.Ct. 2272, 73 L.Ed.2d 1286 (1982). Thereafter, in order to survive a motion for summary judgment, the burden shifts back to the employee to produce controverting evidence of a retaliatory motive. See Texas Division Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 314 (Tex.1994); Terry, 927 S.W.2d at 257. Proof that the stated reasons for discharge are false is sufficient to establish a retaliatory motive-that the employee was terminated in violation of Section 451.001. See Continental Coffee Products Co., 937 S.W.2d at 452; Garcia, 999 S.W.2d at 501; Terry, 927 S.W.2d at 257; Montes, 821 S.W.2d at 695; Paragon, 783 S.W.2d at 660.

In his sole issue for review, Martinez contends that he produced evidence establishing a genuine issue of material fact as to whether there was a causal connection between his worker’s compensation claim and his discharge by EPTD. In response EPTD argues: (1) there can be no retaliatory discharge claim because Martinez quit; (2) the evidence does not establish a causal link between his worker’s compensation claim and his termination; and (3) there are non-discriminatory reasons for his termination.

Evidence of Discharge

We begin with EPTD’s position that there can be no retaliatory discharge action because Martinez quit. Simply put, the record does not conclusively support this position. By all accounts, Martinez was told his job as forklift operator was being eliminated. He was then offered the option of identifying another job he wanted within the company. EPTD alleges Martinez rejected all the jobs offered to him, called the company requesting his severance checks, and then picked them up from the vice-president. EPTD argues that this conduct indicates Martinez intended to quit rather than take another job. Martinez disputes this version of the events, and has stated in his affidavit that he was terminated before he could accept another job.

*5 From this evidence, we cannot conclude Martinez voluntarily quit. Because there is a genuine issue of material fact as to whether Martinez quit or was terminated, this cannot be a basis for upholding the summary judgment. We now consider whether Martinez established a causal connection between his worker’s compensation claim and his discharge from EPTD.

Causal Connection

Martinez contends he established a causal connection between his worker’s compensation claim and his termination² by producing summary judgment evidence demonstrating that EPTD had knowledge of his worker’s compensation claim and that management expressed a negative attitude toward him. Turning to the record, we must determine whether there is any evidence of probative force raising a genuine issue of material fact on the question of whether, but for his filing of a worker’s compensation claim, EPTD would not have terminated Martinez when it did. See Continental Coffee Products Co., 937 S.W.2d at 450-51; Garcia, 999 S.W.2d at 500-01.

Knowledge of the Claim

The record includes the depositions of Kurt Stegemann, Sal Robles, and Jens Schoemer, respectively, the president, vice-president, and production supervisor of EPTD. Each testified he was aware that Martinez had filed a worker’s compensation claim.

Negative Attitude

Martinez stated in his affidavit that his co-workers and management personnel ridiculed his injury and mockingly called him a “Bernie” or told him not to be a “Bernie.” The name “Bernie” was a parochial term for someone who was clumsy and originated from a former worker who sustained a compensable injury to his eye. The worker was eventually terminated. Martinez claimed that the term was used to disparage him.

Schoemer testified that he might have heard someone call Martinez a “Bernie,” however, he could not recall any particular instance. He did not know if Robles had ever used the term and Robles denied ever doing so. Stegemann knew nothing about the references to “Bernie,” and would have stopped any name-calling had he known about it. He admitted that it would have been inappropriate for Robles to call Martinez a “Bernie.”

It is clear that management personnel knew about Martinez’s worker’s compensation claim. We conclude there is a factual dispute as to whether EPTD management personnel called Martinez a “Bernie,” and whether by doing so they expressed a negative attitude toward him. There is some evidence establishing a causal connection between Martinez’s compensation claim and his termination.

We pause to respond to EPTD’s argument that the evidence conclusively establishes that there is no causal connection. We agree that there is considerable evidence reflecting that it treated Martinez favorably by continuing to find work for him after his welding job was discontinued; by continuing to employ him despite his chronic tardiness; by taking no action based on his three previous worker’s compensation claims; by loaning him money; by accommodating his injury when he returned to work; by employing him on the second shift for nine months after he returned to work; and by offering him a job on the first shift when the second shift was scheduled to be eliminated. Nevertheless, upon review of summary judgment, we do not sit as fact finders to resolve the weight and credibility of the evidence. We merely decide whether summary judgment is appropriate because there are no genuine issues of material fact. See Nixon, 690 S.W.2d at 548; Lee, 897 S.W.2d at 503. Here, Martinez has produced some evidence of a causal connection. Summary judgment would be inappropriate if granted on this basis.

Legitimate Reason for Discharge

*6 Next, we address whether EPTD articulated a legitimate non-discriminatory reason for the discharge. The Texas Supreme Court has determined that an employer is entitled to summary judgment in a Chapter 451 retaliatory discharge action when a legitimate, non-discriminatory reason for the discharge is established and the employee fails to produce evidence of a retaliatory motive. See Carrozza, 876 S.W.2d at 312-14. In Carrozza, the employee/plaintiff was injured on the job and received compensation benefits and medical leave. Id. at 313. The employee did not report to work the day he was scheduled to return and did not inform the employer that he would not be reporting to work as scheduled. Carrozza, 876 S.W.2d at 313. As a consequence, he was terminated pursuant to an absence-control policy in the company’s collective bargaining agreement. Id.

As summary judgment proof, the employer submitted affidavits of supervisory personnel stating that the employee’s termination was unrelated to his compensation claim; rather, he was terminated solely for violating a company policy dictating “mandatory termination of any employee who, failing special circumstances, is absent three consecutive work days without receiving permission beforehand, or giving notice during those three days.” Id. The Court decided that uniform enforcement of a reasonable absence-control provision was a “legitimate, non-discriminatory reason for the discharge,” and did not constitute retaliation. Id. Although the employee recited in his own affidavit that he believed in good faith that he was terminated because he filed a worker’s compensation claim, and that there was no other legitimate reason for his termination, the Court concluded that the employee offered no evidence which would sufficiently challenge the employer’s explanation that the termination was the result of non-discriminatory application of the company’s absence-control policy. Id. at 314; see also Terry, 927 S.W.2d at 257-58.

Here, EPTD has advanced two reasons for Martinez’s discharge: there was no need for a second shift forklift operator and the entire second shift was eliminated. Schoemer testified that a second shift forklift operator was unnecessary. He explained that the forklift was used only fifteen minutes out of every hour during the second shift and that Martinez did various other jobs when the forklift was not needed. Robles related that during the second shift, the forklift was only needed to load the presses but that during the first shift, the forklift was needed to move inventory, to accept and deliver shipments, and to load the presses. EPTD decided a second shift forklift operator was unnecessary and that a press operator could operate the forklift when it was needed. After Martinez was discharged, and during the last days of the second shift, a press operator drove the forklift when it was needed. Three to four weeks after the discharge, the second shift was completely eliminated and remained inactive for over a year. When the second shift was revived, there was no separate position for forklift driver.

*7 Based on the summary judgment evidence, we conclude that there is no genuine issue of material fact regarding EPTD’s articulated reasons for terminating Martinez and we conclude as a matter of law that the reasons given constitute legitimate non-discriminatory reasons for discharge. Absent evidence controverting EPTD’s neutral explanation, summary judgment was proper.

Retaliatory Motive

Martinez contends he has raised a genuine issue of material fact as to whether the reasons articulated for his discharge are false. He points to the fact that another employee filled his position as forklift operator after he was discharged, and to the fact that EPTD lied when it offered him the chance to choose another job.

Position of Forklift Operator was Eliminated

Martinez directs us to evidence in the record showing that Douglas Spencer assumed the second shift forklift duties after Martinez was discharged. He insists this is proof that his position was not eliminated. He also draws our attention to Schoemer’s admission that Martinez was a better forklift operator than Spencer, and that Spencer was later terminated for carelessly driving the forklift. From this evidence, he concludes that he was replaced by a less qualified employee who had filed no worker’s compensation claims and that there was no need for EPTD to reassign him since his position continued to exist. He asks us to infer that the attempted reassignment was nothing more than a ruse to hide EPTD’s retaliatory motive. We disagree.

The fact that Spencer operated the forklift after Martinez was discharged is not inconsistent with EPTD’s decision to discharge Martinez. The record supports EPTD’s articulated reason for the discharge-that it was in the process of downsizing its operation. The uncontroverted evidence reveals management realized that it had too many employees and that it did not need a separate forklift operator for the second shift. It is uncontroverted that Spencer was a press operator, that he continued to work primarily as a press operator, and that he operated the forklift only when it was needed. Furthermore, EPTD terminated the entire second shift some three to four weeks after Martinez was discharged.

Martinez suggests that the mere fact that the second shift continued to operate for this three or four week period supports his claim that the reason given for his discharge was false. The legitimacy of EPTD’s reasons for discharging Martinez is bolstered by evidence that management informed employees about the downsizing. Schoemer testified that second shift employees were verbally told about the elimination of their shift. Although Schoemer did not know whether Martinez was present at the employee meeting, Martinez admitted in his deposition that Stegemann told him he could keep working for three weeks until he found another job.

Q: What did Mr. Stegemann tell you?

A: After our-we talked?

Q: You said that Mr. Stegemann told you that you could have any other position within the company. I’m asking, what did he tell you specifically?

*8 A: To look around for something and then-so I could be there about three weeks; he’ll give me an extra three weeks so I can look for another job.

Q: Three weeks to do what?

A. He’ll give me something to do for-at least he’ll let me stay three more weeks so I could look for some other job.

Simply stated, Martinez was told that his job was being eliminated, that he could choose another job on the first shift, or keep working for another three weeks until he found another job outside of the company.

Finally, it is undisputed that when the second shift was reinstituted a year later, EPTD did not employ anyone as a second shift forklift operator because the position was still unnecessary. The fact that Spencer operated the forklift during the waning days of the second shift is not probative evidence that EPTD had a retaliatory motive when it discharged Martinez.

Evidence of Bad Faith by EPTD?

Next, we consider Martinez’s contention that the stated reasons for his discharge are false because EPTD lied to him. He claims that EPTD’s offer to reassign him to the first shift was made in bad faith because EPTD never intended to reassign him. Plainly stated, there is no evidence which establishes any bad faith on the part of EPTD. The only evidence of bad faith comes from Martinez’s subjective beliefs about EPTD’s motives. An employee’s subjective beliefs are no more than conclusions and are not competent summary judgment evidence. See Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex.1984); Carrozza, 876 S.W.2d at 314; Terry, 927 S.W.2d at 259.

CONCLUSION

It is uncontroverted that EPTD suffered a decline in demand for production, had more employees than it needed to meet the demand, and decided that it did not need a separate forklift operator during the second shift, or even a second shift at all. The second shift was shut down three to four weeks after Martinez was discharged, and twenty to thirty workers lost their jobs. We conclude Martinez has failed to produce evidence of a retaliatory motive to rebut a non-discriminatory reason for his termination. The trial court properly granted summary judgment. See Carrozza, 876 S.W.2d at 314; Terry, 927 S.W.2d at 257; Montes, 821 S.W.2d at 694-95. We overrule Appellant’s sole issue and affirm the judgment of the trial court.

	Footnotes
1		These employment problems occurred three years prior to the work-related injury which forms the basis of this suit.
2		Taking as true all evidence favorable to Martinez and resolving all inferences in his favor, as we must, we will refer to his departure from EPTD as a “termination” or “discharge.”