Court of Appeals of Texas, San Antonio.

David MILLER, Appellant/Appellee

v.

MERLIN EXPRESS, INC. and Fairchild Aircraft Co., Inc., Appellee/Appellant.

04-94-00785-CV.

|

Nov. 8, 1995.

Before RICKHOFF, STONE and CARR¹, JJ.

Opinion

CARR

*1 This is an appeal and cross appeal in a wrongful termination of employment suit. David Miller sued his former employer, Merlin Express, Inc., for damages claiming that he was terminated in violation of the Texas Workers’ Compensation Act² which prohibits discrimination against persons who file worker’s compensation claims.

The jury found that Merlin wrongfully terminated Miller and awarded Miller damages of $150,000.00 for past lost wages and benefits, and $10,000.00 for past mental anguish. The trial court struck the $150,000.00 jury award of lost past wages by judgment n.o.v. but rendered judgment for Miller for the past mental anguish damages at $10,000.00 plus interest, from which both parties have brought separate appeals.

After viewing all of the evidence in the record in the light most favorable to the verdict, we conclude that the evidence is legally insufficient to support the jury’s finding of Merlin’s liability for retaliatory discharge. We grant Merlin’s first cross-point and reverse and render a take nothing judgment.

Merlin’s first cross-point contends that there is no evidence to support the jury verdict that Merlin terminated Miller in retaliation for his seeking relief under the Texas Workers’ Compensation Act.

The record reflects that Miller worked as an airline pilot for Merlin for five years prior to receiving an on the job injury on August 21, 1990. Miller filed a worker’s compensation claim and received benefits under that claim.

On August 22, 1990, Merlin placed Miller on a medical leave of absence pursuant to its medical leave policy which provides that any employee will be terminated if they cannot return to work with a doctor’s full duty release at the end of a 26-week period of medical leave absence.

Miller was hospitalized for just over a week after his injury. While there, Bruce Bellg, then Merlin’s Supervisor of Human Resources, contacted Miller to advise him, in Miller’s words, that he needed to “[d]o what the doctors tell you, follow their program, get better, come on back to work.” After his release from the hospital, Miller returned home where he sought treatment from Dr. Arthur Aston of the Louisville Chiropractic Center.

On September 13, 1990, Bellg wrote Dr. Aston asking for an assessment of Miller’s condition and an estimate of when he could return to work. Dr. Aston wrote Bellg two weeks later and explained that Miller had “a Cervical Subluxation Sprain and a Lumbar Subluxation Sprain Complex,” a back injury. Aston estimated that if Miller continued at his rate of improvement he would “be able to return to work sometime in the first 2 weeks of November….”

Miller was not able to return to work in November, as planned. On November 28, 1990, Miller called Merlin’s Chief Pilot, Steve Gnecco, to discuss his condition. Miller told Gnecco that he could “fly the airplane 100 percent.” Nevertheless, he admitted to Gnecco that he could only lift 30 to 35 pounds on a consistent basis, a weight which was well below the 70-pound requirement specified in Merlin’s job description.³ Miller testified that Gnecco specifically reminded him, “Well, you know, you need to come back 100 percent.”

*2 According to Miller, he also mentioned to Gnecco that he was going to seek the advice of an attorney because he believed he could not be fired while he was injured on worker’s compensation. Miller explained that the conversation was not confrontational, and that it was his impression that the conversation went “cold after that remark” about the attorney. Miller elaborated upon his impression:

It wasn’t an outright, you’d better not do that, but the tone of his voice became much more businesslike and formal and then-and then the rigid 26-week policy kicked in, and you’d better get back. And it wasn’t-it wasn’t so much as you’d better not do that, as it was you just get the impression that I’d said something wrong. [emphasis added]

In addition Gnecco and Miller reviewed that portion of the policy stating that he had to provide a physician’s release with no restrictions in order to come back to work.

Soon after Miller’s November 28th telephone conversation, he visited Dr. Knopp at the Crosby Chiropractic Center. Miller testified that he changed doctors in order “to get 100 percent release. So, I changed doctors to see if I could get a 100 percent release.”

On February 1, 1991, Bellg wrote Miller to remind him of the Policy because Miller’s 26-week leave of absence was scheduled to expire February 20th. The letter also reminded him that he was eligible to reapply for employment once he was physically able to perform his pilot duties without restrictions.

Miller testified he received this letter around February 7, 1991. At that time he “felt like they [Merlin] had already made up their minds to fire [him].” He also stated it was his impression that “they had made up their minds that if I came back on the 8th of February, I was going to be fired. If I came back the 20th of February, I was going to be fired. And I took the letter as a threat that, you come back by the 20th or period.”

Miller never could produce a medical release authorizing him to return to work without restrictions before the expiration of the 26-week period under the Policy because, as he himself admitted, he could not meet the 70-pound lifting requirement.⁴

Consequently, in accordance with Merlin’s medical leave policy Miller was terminated on February 20, 1991.

Standard of Review

Miller’s suit for retaliatory discharge is based on Article 8307c of the Texas Revised Civil Statutes. Tex.Rev.Civ.Stat.Ann. art. 8307c (Vernon 1967) (current version at Tex. Lab.Code Ann. § 451.001 (Vernon Supp. Pamph.1994).⁵

The jury’s finding regarding Merlin’s liability cannot be affirmed unless there is “some evidence” to support a causal connection existed between the discharge and the filing for worker’s compensation benefits. Azar Nut Company v. Caille, 734 S.W.2d 667 (Tex.1987); Hughs Tool Company v. Richards, 624 S.W.2d 598 (Tex.Civ.App.-Houston [14th Dist.] 1981, writ ref’d n.r.e.), cert. denied, 456 U.S.1991; In re King’s Estate, 244 S.W.2d 660, 661 (Tex.1951). Facts that merely give rise to Miller’s suspicion, impression or surmise that Merlin violated 8307c do not rise to the level of some evidence. See Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925 (Tex.1993). (“[S]ome suspicion linked to other suspicions produces only more suspicion, which is not the same as some evidence.” citing Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983)). Instead, this “evidence” is no evidence under the familiar scintilla rules. Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex.1987); Kindred, 650 S.W.2d at 63 (holding that a scintilla of evidence exists where the evidence offered to prove a vital fact is so weak as to do no more than to create a mere surmise or suspicion of its existence is no more than a scintilla and, in legal effect, no evidence). The uncorroborated opinion of an employee is not sufficient to constitute some evidence. Id.

Neutral Leave of Absence Policy

*3 Miller first argues that Merlin’s medical leave of absence policy was in and of itself violative of Section 451.001. However, the Texas Supreme Court expressly approves of reasonable and neutrally-enforced leave of absence policies like the one maintained by Merlin in this case. See Texas Division-Tranter Inc. v. Carrozza, 876 S.W.2d 312 (Tex.1994). Miller argues that Merlin’s policy is in and of itself violative of Section 451.001 of the Texas Labor Code because it “did not give consideration to the fact that an injured worker’s injury could take longer than twenty-six (26) weeks to heal. The arbitrary number of the twenty-six weeks discriminates against Miller in and of itself….” Contrary to Miller’s suggestion, however, an employee may be terminated under a reasonable, uniformly-enforced absence control policy even while that employee is receiving worker’s compensation. See id. at 312. In Carrozza, for example, the Texas Supreme Court upheld a summary judgment in favor of an employer that had terminated an employee who was receiving benefits, under a “3-day rule,” which called for the termination of any employee who was absent for three consecutive days without notice or permission. Id. at 313.

Merlin’s Policy is in some respects different from the 3-day rule in Carrozza. However, in essence, and for purposes of applying the holding enunciated in Carrozza, they are the same. In fact, in Carrozza, the Court relied on a Fifth Circuit case, Parham v. Carrier Corp., 9 F.3d at 383 (5th Cir.1993), which involved a medical leave of absence policy very similar to Merlin’s. There, the court found that the company’s policy placing a cap of twelve months on all medical leaves of absence, whether job related or not, was not violative in and of itself of Article 8307c. Id.

In support of his claim that Section 451.001 provided him safe harbor from termination, Miller cites the case of Trevino v. Corrections Co. of America, 850 S.W.2d 806 (Tex.App.-El Paso 1993, writ denied). There, the employer policy in question provided:

If the workers’ compensation period extends beyond six months, the employee will be terminated and dropped from the payroll. The employee will no longer be carried on the company’s group insurance plan; however, the employee may apply for conversion. Preferential treatment will be given when, with a physician’s approval, the employee is able to return to work, but the employee will not be guaranteed reinstatement.

Id. at 808. In reversing a summary judgment rendered in favor of the employer, the court of appeals noted that the termination policy in question was “tied directly to maintaining a compensation claim for longer than six months (or whatever the period), contrary to the provisions of Article 8307c.” Id. at 809. In so doing, the Trevino court recognized that the test for determining the validity of a termination policy under Section 451.001 is whether the policy is applied neutrally, i.e., irrespective of whether the employee was a worker’s compensation recipient. In this case, Merlin’s Policy clearly is neutral, both on its face and as applied to Miller because Merlin enforced the Policy without regard to whether the underlying reason for the medical leave was an on or off-the-job injury or illness.

*4 Miller argues that Merlin’s policy involved an “arbitrarily set period of time in which he was required to return to work, even though he may still be injured, upon pain of loosing [sic] his job.” As noted by the Trevino court, however, the length of time an employer provides under any given leave of absence policy is irrelevant. As stated by the court, “It is not the six month period that makes the policy bad (it could be for a much shorter period and pass muster). It is bad because the termination is tied directly to maintaining a compensation claim for longer than six months (or whatever the period), contrary to the provisions of Article 8307c.” Id. at 809.

Prior to the court’s decision in Carrozza, several courts had upheld the validity of an employee’s termination under a neutral absence-control policy in the context of an 8307c claim. See, e.g., Parham v. Carrier Corp., 9 F.3d 383 (5th Cir.1993) (interpreting Texas law); Unida v. Levi Strauss & Co., 986 F.2d 970 (5th Cir.1993) (interpreting Texas law); Swearingen v. Owens-Corning Fiberglas Corp., 968 F.2d 559 (5th Cir.1992) (interpreting Texas law); Palmer v. Miller Brewing Co., 852 S.W.2d 57, 61 (Tex.App.-Fort Worth 1993, writ denied). In one such case, cited with approval by the court in Carrozza, the Fort Worth Court of Appeals held that the use of an absence-control policy, which does not excuse compensation-related absences, does not per se violate article 8307c. Palmer, 852 S.W.2d at 61. In Palmer, a former employee argued the causal link necessary for his retaliatory discharge claim was established when Miller Brewing terminated him under its absence control policy while he was taking sick leave for a job-related injury. Id. Specifically, he argued his “injury on the job required his absence from work and as such should have been protected under Article 8307c.” Id. In rejecting this claim, the court noted that the plain language of the worker’s compensation statute did not mandate such result. Id. at 62 (citing Swearingen, 968 F.2d at 559).

An employee may establish liability for retaliatory discharge under an employer’s leave of absence policy only if the policy is not facially neutral or if there is evidence of retaliatory intent other than the employee’s termination under the policy while recovering from a workrelated illness or injury. See Swearingen, 968 F.2d at 563; Palmer, 852 S.W.2d at 62; Trevino v. Corrections Corp. of America, 850 S.W.2d 806 (Tex.App.-El Paso 1993, writ denied) (policy was illegal because it was enforced only against workers’ compensation claimants). In this case, there is no evidence in the record to support the jury’s finding that the Merlin policy was not both facially neutral and neutrally-applied.

For the reasons stated we hold that the Merlin medical leave policy is not in and of itself violative of Section 451.001.

Retaliatory Intent

Outside of Miller’s argument that Merlin’s policy was illegal per se, Miller relies only on his impressions and opinions and suspicions for evidence that Merlin was motivated by retaliatory intent when it terminated him from employment. Miller’s conclusions are legally insufficient to support the jury’s liability finding.

Merlin’s Awareness of Miller’s Previous Claims

*5 In an attempt to establish Merlin’s liability under Section 451.001, Miller points to evidence he had filed two previous compensation claims. In support of this argument, however, Miller points only to the naked fact that representatives of Merlin were aware of Miller’s previous claims and that their compensation premiums might increase as a result. Under the right circumstances, evidence that an employer actually discouraged the filing of compensation claims may be evidence of retaliatory discharge. See e.g., Paragon Hotel Corp. v. Ramirez, 783 S.W.2d 654, 658 (Tex.App.-El Paso 1983, writ denied). Actual discouragement of claims, however, is different from mere knowledge of them and their effect on premiums. We know of no Texas case that has ever based an employer’s liability for retaliatory discharge on mere knowledge of previous claims and we decline to so hold.

Merlin’s Failure to Require Releases Upon His Return From The Two Prior Workers’ Compensation Injuries

As evidence of Merlin’s liability under Section 451.001, Miller relies on the fact that Merlin did not require Miller to submit a release to return to work following his two previous on-the-job injuries, but did require a release after his third injury. This argument is misplaced. Under the policy, Merlin employees are required to submit a release only when they are placed on medical leave. In this case, there is no evidence showing that Miller was ever placed on medical leave for his two previous injuries. Accordingly, the fact that Merlin did not require Miller to submit releases after his first two on-the-job injuries, but did after his third, is not evidence of Merlin’s liability under Section 451.001.

Merlin Contacting Miller’s Treating Physician

Miller also relies on evidence that Merlin deviated from its “normal procedure” by contacting his treating physician shortly after his injury to establish Merlin’s retaliatory intent. Such reliance is misguided. As Bellg explained, Merlin indeed contacted Miller’s doctor, but only after Miller had failed to return to work for some time. Bellg further explained that Merlin typically contacted the injured employer’s physician to determine the projected time of return when, as in Miller’s case, there appeared to be no definite time the employee would return to work. In any event, Merlin had no set policy regarding contact with physicians from which to deviate; each case was handled on an individual basis and according to the particular circumstances involved. Merlin’s contacting of Miller’s treating physician under the circumstances of this case does not give rise to an inference of Merlin’s motive as retaliation.

Merlin’s Reminder Letter

Further, Miller argues the fact that he was “the first person in nine years to receive a letter demanding that he return to work prior to termination” is also evidence of Merlin’s liability under Section 451.001. Miller refers to the February 1, 1990, letter Merlin sent him prior to the expiration of the 26-week period reminding him the policy required that he be able to return to work within that time period or face termination. However, the policy had been in effect less than three (3) years before Bellg sent the letter to Miller’s doctor. In any event, a fair reading of the letter shows it was not sent with the purpose of “demanding” Miller’s return to work; rather, as explained by Bellg, it was simply sent to “make sure that David [Miller] knew about that in writing and what would happen if he didn’t come back to duty after 26 weeks.” The sending of this letter clearly does not give rise to an inference of Merlin’s retaliatory motive.

Miller’s Ability to Return to Work

*6 Miller also claims the evidence shows that “when [he] attempted to return to work he was not permitted to do so even though he would have been able to perform the duties required in his position.” In fact, the evidence conclusively shows just the opposite. As Miller himself acknowledged, his responsibilities as a Merlin pilot were not limited to flying a plane; he was also required to assist in the loading and unloading of cargo. Due to this requirement, his job description specifically noted that he must be able to lift up to 70 pounds on a consistent basis. Miller himself admitted he could not meet this 70 pound lifting requirement. As a consequence, he never could obtain a one hundred percent work release as required by the policy.

In Parham v. Carrier Corp., 9 F.3d at 383, the plaintiff also claimed to have established the nexus between his discharge and the filing of his claim for the reason that he could have returned to work. Id. at 388. In reversing a judgment in favor of the plaintiff, the Fifth Circuit noted that in support of his claim, the plaintiff “point[ed] only to his own self-serving testimony that he obtained similar employment at McDonald’s after he was fired from Carrier, and that he believed he could do everything physically necessary to work at Carrier.” Id. at 389. Similarly, in the present case, Miller’s own self-serving claim that he could return to work is simply insufficient to raise an inference that Merlin terminated him in violation of Section 451.001.

Merlin’s Knowledge of Miller’s Compensation Claim

Miller also argues that Merlin was “well aware” he was on medical leave due to an onthe-job injury. Merlin does not contest that it knew of Miller’s injury and that he intended to file a worker’s compensation claim. Miller testified, that Merlin even assisted him in filing his worker’s compensation claim.

Mere knowledge, standing alone, however, is insufficient to establish the requisite nexus between termination and any of the four circumstances outlined in Section 451.001. See e.g., Ramirez, 783 S.W.2d at 658. Thus, Merlin’s mere knowledge of Miller’s claim creates no more than a surmise or suspicion that Merlin’s termination might have been motivated by a retaliatory intent and is insufficient as a matter of law to support the jury’s finding of Merlin’s liability under Section 451.001.

Merlin’s Preparation of Miller’s Termination Notice One Day Prior to His Termination Date

Miller also argues Merlin’s termination form, which is dated one day prior to the actual date of termination, is evidence of Merlin’s retaliatory motive. This argument is specious. The fact that Merlin prepared the termination form in advance of Miller’s termination date under the policy in the event Miller failed to report to work with the proper release does not give rise to an inference that Miller was terminated for one of the four circumstances set forth in Section 451.001.

For the reasons stated, we hold that the other “evidence” offered by Miller to establish Merlin’s liability, as outlined above, whether considered alone or together, was so weak as to create nothing more than a surmise or suspicion that they were related to his termination.

*7 Merlin’s first cross-point is granted and we thus need not address Miller’s points nor Merlin’s remaining cross-points.

Judgment is reversed and rendered as a take nothing judgment.

	Footnotes
1		Assigned to this case by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov’t Code Ann. § 74.003(b) (Vernon 1988).
2		Tex.Rev.Civ.Stat.Ann. art. §§ 8307c (Vernon 1967) (current version at Tex. Lab.Code Ann. § 451.001 (Vernon Supp. Pamph.1994).)
3		Because Merlin provides cargo services for United Parcel Service, Inc., it requires its pilots to manage the weight distribution of the planes as well as assist in the loading and unloading of cargo.
4		In fact, the evidence shows that Miller was unable to perform the duties required of him as a pilot for Merlin months after his termination. For instance, on April 3, 1991, he visited the Crosby Chiropractic Clinic, noting that when he bent over his back would “explode.” Moreover, in a June 25, 1991, visit to the chiropractor he noted: Not being able to sit down on the floor and play with my children is not acceptable. Pain from turning my head for looking for traffic, especially in an airplane could be fatal, if cause me to stop.
5		Miller’s burden of proof at trial was to prove some evidence of a causal link between his termination and one of the four protected activities set forth in § 451.001: A person may not discharge or in any other way discriminate against an employee because the employee has: (1) filed a worker’s 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 [the Worker’s Compensation Act]; or (4) testified or is about to testify in a proceeding under [the Worker’s Compensation Act]. Texas Lab.Code Ann. § 451.001 (Vernon Pamph.1994); see also Hunt v. Van Der Horst Corp., 711 S.W.2d 77, 80 (Tex.App.-Dallas 1986, no writ).