Court of Appeals of Texas, Dallas.

Johnny WILLIAMS, Appellant,

v.

GNB BATTERY TECHNOLOGIES f/k/a GNB Incorporated f/k/a GNB Batteries, Inc., Appellee.

No. 05-94-00700-CV.

|

March 30, 1995.

Before KINKEADE, BARBER and WHITHAM¹, JJ.

KINKEADE, Justice.

OPINION

*1 Johnny Williams (“Williams”) appeals a summary judgment entered in favor of GNB Battery Technologies f/k/a GNB Incorporated f/k/a GNB Batteries, Inc., (“GNB”). In three points of error, Williams contends the trial court erred in granting GNB’s motion for summary judgment because (1) GNB produced no evidence that Williams’s workers’ compensation proceeding was not a factor in his termination; (2) there are genuine issues of material fact regarding the existence of a causal connection between Williams’s workers’ compensation proceeding and his termination; and (3) there are genuine issues of material fact regarding whether the application of GNB’s absenteeism policy to Williams violated article 8307c of the Texas Workers’ Compensation Act. We hold that GNB provided sufficient summary judgment evidence to show, as a matter of law, Williams’s workers’ compensation proceeding was not a factor in his termination. Because Williams failed to demonstrate a genuine issue of material fact regarding either the alleged causal connection or the alleged discriminatory application of the absenteeism policy, we affirm the trial court’s judgment.

FACTUAL AND PROCEDURAL HISTORY

GNB has a written no-fault absenteeism policy. The policy’s purpose is to establish consistent procedures for handling absenteeism, as well as to provide an accurate record for settling grievances. A record of absenteeism is established through a progressive discipline demerit system. Employees are assessed demerits for all non-approved types of absences. Employees may receive credit points, which lower their demerit total, based upon their attendance record.

Disciplinary action is assessed on a 12 month rolling cycle. When an employee reaches 80 demerit points he is given a “final” written warning. The 12 month cycle begins on the date the warning is issued. If an employee reaches 80 demerit points a second time during the 12 month period, he is given a second “final” written warning. If an employee reaches 80 demerit points for a third time within the 12 month period, he is subject to termination.

GNB issued Williams his first final written warning on July 31, 1991. Williams was sent a second final written warning November 6, 1991. On April 27, 1992, Williams injured his ankle during the course of his work at GNB. Williams notified his supervisor of his injury and was sent to the company doctor later that day. On July 28, 1992, Williams left work early and reached 80 demerit points for the third time. Williams was issued a third final written warning. GNB terminated Williams on August 12, 1992.

Williams alleges that GNB terminated him in retaliation for his instituting a proceeding under the Texas Workers’ Compensation Act. This Court has held that an employee who has reported an on-the-job injury to his employer and informed the employer of his need to see a doctor, has “instituted a proceeding” for the purposes of article 8307c of the Texas Workers’ Compensation Act. See Hunt v. Van Der Horst Corp., 711 S.W.2d 77, 80 (Tex. App.-Dallas 1986, no writ). GNB responds that it terminated Williams because he received three final written warnings during a 12 month period and was, therefore, subject to termination under the no-fault absenteeism policy. Williams sued GNB for violation of article 8307c of the Texas Workers’ Compensation Act. GNB filed a motion for summary judgment contending that there was no causal link between Williams’s discharge and his on-the-job injury. The trial court granted GNB’s motion.

SUMMARY JUDGMENT STANDARD OF REVIEW

*2 In reviewing the trial court’s ruling on GNB’s motion for summary judgment we apply the following standards:

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.

2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true.

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

See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985); Spencer v. City of Dallas, 819 S.W.2d 612, 615 (Tex. App.-Dallas 1991, writ denied).

To show its right to summary judgment, a defendant, as movant, must either disprove an essential element of the plaintiff’s cause of action as a matter of law or establish all the elements of an affirmative defense as a matter of law. Gibbs v. Gen. Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970). Except to attack the legal sufficiency of the movant’s grounds for summary judgment, the non-movant must expressly present to the trial court in a written answer or response any reason for avoiding the movant’s entitlement to summary judgment. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678-79 (Tex. 1979). The nonmovant must also present specific summary judgment evidence when necessary to show a material fact issue. Id.; Spencer, 819 S.W.2d at 616.

RETALIATORY DISCHARGE

Under article 8307c of the Texas Workers’ Compensation Act, an employee alleging retaliatory discharge must establish a causal link between his discharge and his claim for workers’ compensation. Swearingen v. Owens-Corning Fiberglas Corp., 968 F.2d 559, 562 (5th Cir. 1992); Palmer v. Miller Brewing Co., 852 S.W.2d 57, 61 (Tex. App.-Fort Worth 1993, writ denied); See Act of August 30, 1971, 62nd Leg., R.S., ch. 115, §§ 1 & 2, 1971 Tex. Gen. Laws 884, 884-85 (formerly Tex. Rev. Civ. Stat. Ann. art. 8307c (Vernon Supp. 1992)), repealed by, Act of September 1, 1993, 73rd Leg., R.S., ch. 269, § 5, 1993 Tex. Gen. Laws 1273 (current version at Tex. Lab. Code Ann. § 451.001-.003 (Vernon Pamph. 1995)). The employer may rebut the alleged discrimination by showing a legitimate reason for the discharge. Palmer, 852 S.W.2d at 61. Uniform enforcement of a reasonable absenteeism policy does not constitute retaliatory discharge and does not per se violate article 8307c. Swearingen, 968 F.2d at 564; Palmer, 852 S.W.2d at 62; Texas Division-Tranter, Inc. v. Carrozza, 876 S.W.2d 312 (Tex. 1994). Summary judgment on an 8307c claim is proper when the employee fails to raise a material fact issue in the face of the employer’s enforcement of a reasonable absenteeism policy. See Texas Division-Tranter, Inc., 876 S.W.2d at 314.

In his first point of error, Williams argues that GNB failed to meet its summary judgment burden because GNB produced no evidence that Williams’s workers’ compensation proceeding was not a factor in GNB’s decision to terminate Williams. GNB presented summary judgment evidence including (1) excerpts from Williams’s deposition; (2) the affidavit of Ron Melling, GNB’s human resources manager; (3) Williams’s attendance and demerit accumulation charts; (4) the absenteeism policy; (5) GNB’s Disciplinary Action Report; (6) Williams’s termination letter; and (7) the discharge statement of facts Williams presented to the Texas Employment Commission. Williams stated in his deposition that he understood GNB’s absenteeism policy and knew he was subject to termination if he earned three written warnings within a rolling 12 month period. Williams acknowledged that the sole reason given for his termination was his violation of the absenteeism policy. Furthermore, in both his deposition and statement to the Texas Employment Commission, Williams admitted the true reason for his termination was that he left early on July 28, 1992. These admissions are supported by Williams’s attendance chart, GNB’s Disciplinary Action Report and Williams’s termination letter. All three documents indicate that the sole reason for Williams’s termination was absenteeism. Accordingly, we conclude GNB provided sufficient summary judgment evidence to demonstrate that the sole reason for Williams’s termination was the application of GNB’s no-fault absenteeism policy. We overrule Williams’s first point of error.

*3 In his second point of error, Williams contends there are genuine issues of material fact regarding the existence of a causal connection between his termination and his workers’ compensation proceeding. Circumstantial evidence can prove a causal connection. Palmer, 852 S.W.2d at 61. “Such evidence includes: (1) knowledge of the workers’ compensation claim by those making the determination to terminate; (2) a negative attitude toward the employee’s injured condition; (3) failure to follow company policy when disciplining an employee who made the claim; and (4) discriminatory treatment of this employee when compared to the treatment of other employees with this same disciplinary problem.” Id.

In this case, Melling terminated Williams. It is undisputed Melling knew that Williams had reported an on-the-job injury. However, this fact, standing alone, is insufficient to raise a fact issue regarding a causal connection.

As evidence of GNB’s negative attitude toward Williams’s injury, Williams submitted summary judgment evidence in the form of his own affidavit. According to Williams, GNB displayed a negative attitude because it did not promptly assist Williams in seeking medical treatment, did not allow Williams to be treated by the doctor of his choice, and did not make allowances for Williams’s injury when applying the absenteeism policy. Yet, according to Williams’s affidavit, his supervisor arranged for him to be taken to the doctor as soon as he was informed it was necessary. Williams provides no evidence, but only hearsay and speculation to show that GNB refused to allow Williams to see the doctor of his choice. And Williams provides no evidence that GNB was aware Williams was dissatisfied with the treatment rendered by GNB’s “company” doctors.

As for GNB’s failure to make allowances for Williams’s injury when applying the absenteeism policy, Williams misapplies Palmer. Under Palmer, a causal connection is shown when the employer fails to follow company policy and treats an employee differently than other employees with the same disciplinary problems. Palmer, 852 S.W.2d at 61. Yet, Williams argues that a causal connection is shown in this case because GNB strictly adhered to the absenteeism policy and refused to treat him differently. Williams complains that GNB forced him to report for work. However, Williams’s affidavit shows that Williams was released to work. Williams further complains that GNB refused to excuse William’s tardiness because of his injury. To excuse Williams because of his injury would negate the purpose of a no-fault absenteeism policy.

Williams’s only argument that he was treated differently than other employees is the allegation that GNB “manipulated” the absenteeism policy so as to terminate him. Williams contends that if GNB had measured the twelve month rolling period from the date of the first offense to the date of the third offense (July 24, 1991 to July 28, 1992) or from the date of the first notice to the date of the third notice (July 31, 1991 to August 5, 1992), Williams would not have been subject to termination. This argument fails because under the terms of the absenteeism policy, the 12 month period begins upon the issuance of the first notice. An employee is subject to termination upon the third offense in the twelve month period. In this case, it is undisputed that the first notice and the third offense occurred within the same twelve month period. Williams presented no evidence, therefore, that the absenteeism policy was manipulated to make Williams subject to termination.

*4 Williams’s only other summary judgment evidence of a causal connection is his own testimony that he was terminated in retaliation for having instituted a proceeding under the Texas Workers’ Compensation Act. Subjective beliefs are not competent summary judgment evidence. Texas Division-Tranter, Inc., 876 S.W.2d at 314. Accordingly, we hold that Williams failed to raise a genuine issue of material fact regarding a causal connection. We overrule Williams’s second point of error.

In his third point of error, Williams argues that there are genuine issues of material fact regarding whether the application of GNB’s absenteeism policy to Williams violated article 8307c of the Texas Worker’s Compensation Act. Application of a reasonable absenteeism policy may violate article 8307c if the termination was tainted by the presence of an illegitimate retaliatory motive. Palmer, 852 S.W.2d at 62. First, Williams argues that there is an issue of fact as to whether GNB’s absenteeism policy was uniformly applied. As part of its summary judgment evidence, GNB submitted its absenteeism policy. By its terms, the policy applies to all employees. Williams submitted GNB’s answers to Williams’s interrogatories as part of his own summary judgment evidence. In answer to Interrogatory No. 14, GNB listed several former employees who had sustained on-the-job injuries and were fired due to absenteeism. Williams provided no summary judgment evidence to show that exceptions to the absenteeism policy could be or had been made.

Next, Williams argues that exceptions should have been made for him because he was a ten year employee who had suffered an on-the-job injury and was only days away from the end of the twelve month period when he reached 80 demerits for the third time. Once again, the no-fault absenteeism policy submitted by GNB applied to all employees and Williams provided no summary judgment evidence to contradict the uniform application. The purpose of a no-fault absenteeism policy is to apply to all employees regardless of their individual situations.

Finally, Williams argues that there is a question of fact regarding GNB’s retaliatory motive because GNB forced Williams to report to work despite his injury rather than allowing him to remain off work as recommended by Williams’s personal doctor. According to Williams, if he had been allowed to remain off work due to his injury, he would not have earned demerits during that time. Williams argument is apparently that GNB’s actions were retaliatory because the company gave him the opportunity to be late and receive demerits. As stated above, Williams was released to return to work. Williams produced no summary judgment evidence that he ever requested a leave of absence or that GNB was aware a doctor had recommended he not return to work. Therefore, this circumstantial evidence does not show a retaliatory motive.

Interestingly, Williams also argues that GNB’s retaliatory motive is shown by its refusal to allow him to work during the plant shut down. Rather than allowing him to avoid demerits, Williams characterizes this refusal to allow him to work as a denial of his ability to earn credit points. As part of its summary judgment evidence, GNB submitted Melling’s affidavit. According to Melling, only a limited number of employees work during the plant shutdown and no light duty work is available. Williams, at that time, was only released to light duty work. Furthermore, Williams admitted in his deposition that he did not believe GNB was retaliating against him by denying him work during the shutdown.

*5 We conclude that Williams failed to raise a genuine issue of material fact regarding GNB’s application of its no-fault absenteeism policy. We overrule Williams’s third point of error.

We affirm the trial court’s judgment.

	Footnotes
1		The Honorable Warren Whitham, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.