Court of Appeals of Texas, Dallas.

Elmer INGRAM, Appellant

v.

TEXAS INDUSTRIES, INC., Appellee

05-94-01625-CV.

|

Aug. 25, 1995.

Before BAKER, KINKEADE and JAMES, JJ.

OPINION

KINKEADE

*1 Elmer Ingram appeals a summary judgment entered in favor of Texas Industries, Inc. (“TXI”) in this retaliatory discharge case. In three points of error, Ingram contends the trial court erred in granting TXI’s motion for summary judgment because: (1) he presented evidence of a causal connection between his workers’ compensation claim and his termination; (2) the judgment was based on controverted, self-affirming affidavits; and (3) TXI failed to show there were no genuine issues of material fact. Because we conclude there are genuine issues of material fact, we reverse the summary judgment and remand the case for further proceedings.

FACTS

Elmer Ingram incurred an on-the-job injury while employed with TXI. Ingram reported his injury to TXI and began losing time from work on January 31, 1991. Ingram’s employment was terminated on July 31, 1991. The reason given by TXI for the termination was that Ingram’s medical leave had extended beyond the six month period allowed under TXI’s leave of absence policy. Ingram filed suit against TXI alleging that it had violated article 8307c of the Texas Workers’ Compensation Act.

TXI filed a motion for summary judgment arguing that its neutral application of a reasonable absence control policy did not violate article 8307c. Ingram responded that fact issues remained regarding whether his workers’ compensation claim was a factor in his termination. The trial court granted TXI’s motion.

APPLICABLE LAW

This courts standard of review of a summary judgment is well established. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 679 (Tex.1979). When an appellant claims material fact issues exist precluding summary judgment, we must simply review the summary judgment evidence to determine whether the summary judgment proof establishes as a matter of law that there is no genuine issue of material fact. Olguin v. Metzger Dairies, Inc., 884 S.W.2d 518, 519 (Tex.App.-Dallas 1994, writ dism’d by agr.).

CONCLUSION

We have reviewed the summary judgment evidence in light of the applicable standard of review and conclude that summary judgment was not proper as a matter of law because the summary judgment evidence submitted by Ingram raised fact issues regarding whether Ingram’s workers’ compensation claim was a factor in his termination and whether his termination under the leave-of-absence policy was tainted by the presence of an illegitimate, retaliatory motive. See Palmer v. Miller Brewing Co., 852 S.W.2d 57, 62 (Tex.App.-Fort Worth 1993, writ denied). We, therefore, sustain Ingram’s first and third points of error and do not address his second point of error.

We reverse the trial court’s judgment and remand the case for further proceedings.

BAKER, J., concurs in the result only without an opinion.