Court of Appeals of Texas, Dallas.

Onna Lou CLARK, Appellant,

v.

BROWN & WILLIAMSON TOBACCO COMPANY, Appellee.

No. 05-94-01522-CV.

|

July 28, 1995.

Before LAGARDE, MALONEY, and WHITTINGTON, JJ.

OPINION

WHITTINGTON.

*1 In this wrongful termination case, Onna Lou Clark appeals a summary judgment granted in favor of Brown & Williamson Tobacco Company (“B & W”). In two points of error, Clark contends the trial judge erred in granting summary judgment because B & W failed to disprove at least one essential element of Clark’s cause of action. We affirm the trial court’s judgment.

FACTUAL BACKGROUND

Clark worked for B & W as a sales representative. As part of her job, Clark was required to “service” the accounts of certain B & W retail customers. “Servicing” an account includes visiting retail stores, restocking inventory, removing stale products from shelves, and monitoring store displays, shelf space, and product sales. B & W required Clark, as well as all other B & W sales representatives, to track servicing activities by entering certain information in hand-held computers during visits to stores. B & W used the computerized information to generate call reports for each representative.

On April 15, 1991, an uninsured motorist struck Clark from behind while she was calling on customers in her company car. Clark’s former supervisor, George Owens, took Clark to the emergency room where she was treated and released. The following day, Owens notified B & W of Clark’s injury. Clark later retained an attorney and made demand for her injuries under B & W’s uninsured motorist insurance policy. Neither Clark nor her attorney filed a claim for worker’s compensation benefits at that time or at any time thereafter.

During the fall of 1992, B & W received a report detailing unusual call activities for approximately three hundred B & W sales representatives across the country. B & W decided to audit each of these representatives’ accounts to determine whether any of the representatives were falsifying call reports. Under the audit guidelines, if a supervisor determined that an employee had visited a customer but merely delayed entering the call information until later, the employee would receive a written warning. However, if the supervisor discovered an employee had falsely reported a call, i.e., reported information in the computer indicating she had visited a customer when in fact she had not, the supervisor was required to fire the employee.

Clark’s name appeared on the unusual call activity report. Consequently, B & W instructed Clark’s supervisor, James Futrell, to audit her accounts. Futrell began verifying Clark’s report information by personally visiting each of her accounts. Futrell’s audit initially revealed Clark had not timely reported information on several customers. Therefore, in accordance with B & W’s audit policy, Futrell gave Clark a written warning. However, upon completing the audit, Futrell discovered that contrary to the information reflected in Clark’s call report, Clark had not visited several customers.

On November 2, 1992, Futrell discussed the complete audit results with his manager, Gordy Sanders. The two men concluded that Clark had falsified information in her call report. After receiving approval from Sanders and B & W corporate headquarters, Futrell decided to terminate Clark. Several days later, Futrell met with Clark and confronted her with the results of the audit. When Clark failed to give any explanation for the discrepancies in her reports, Futrell fired her.

*2 Clark filed suit for wrongful termination, claiming B & W had fired her in retaliation for instituting a workers’ compensation proceeding in connection with her April 1991 injury. B & W filed a general denial, followed by a motion for summary judgment. In the motion, B & W argued it was entitled to summary judgment because Clark could not, as a matter of law, establish any causal connection between her firing and the exercise of her rights under the workers’ compensation act. In support of the motion, B & W offered copies of Clark’s call reports, Clark’s deposition testimony, and affidavits of various B & W administrative and supervisory personnel. The trial judge held a hearing on B & W’s motion on August 26, 1994. Following the hearing, the trial judge granted B & W’s motion and dismissed Clark’s claims with prejudice. This appeal followed.

SUMMARY JUDGMENT

In reviewing a summary judgment, this Court applies the following standards:

(1) The movant for summary judgment has the burden of showing there is no genuine issue of material fact and it is entitled to judgment as a matter of law.

(2) In deciding whether a disputed material fact issue exists precluding summary judgment, we take evidence favorable to the non-movant as true.

(3) We indulge every reasonable inference in favor of the non-movant and resolve any doubts in its favor.

Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985).

To prevail on summary judgment, a defendant must either (1) disprove at least one element of each of the plaintiff’s theories of recovery or (2) plead and conclusively establish each essential element of an affirmative defense, thereby rebutting the plaintiff’s cause of action. International Union UAW Local 119 v. Johnson Controls, Inc., 813 S.W.2d 558, 563 (Tex. App.-Dallas 1991, writ denied). A matter is conclusively established if ordinary minds could not differ as to the conclusion to be drawn from the evidence. Triton Oil & Gas Corp. v. Marine Contractors & Supply, Inc., 644 S.W.2d 443, 446 (Tex.1982). Once the defendant establishes its right to summary judgment as a matter of law, the burden shifts to the plaintiff to present evidence which raises a genuine issue of material fact, thereby precluding summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979); Muckelroy v. Richardson ISD, 884 S.W.2d 825, 828 (Tex.App.-Dallas 1994, writ denied).

The purpose of the summary judgment rule is not to provide a trial by deposition or affidavit. Rather, the purpose of the rule is to provide a method of summarily ending a case that involves only a question of law or no genuine issue of fact. Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557, 563 (1962). The rule is not intended to deprive litigants of their rights to a full hearing on the merits of any real fact issue. See Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 931 (1952).

WORKERS’ COMPENSATION ACT

*3 In her first point of error, Clark contends the trial judge erred in granting summary judgment because B & W failed to meet its burden on summary judgment. Specifically, Clark contends B & W failed to establish that Clark could not, as a matter of law, establish a causal connection between her termination and her initiation of a workers’ compensation claim. We disagree.

Article 8307c of the Texas Workers’ Compensation Act provides:

No person may discharge or in any other manner discriminate against any employee because the employee has in good faith filed a claim, hired a lawyer to represent him in a claim, instituted, or caused to be instituted, in good faith, any proceeding under the Texas Workmen’s Compensation Act, or has testified or is about to testify in any such proceeding.

See Act of April 22, 1971, 62nd Leg., R.S., ch. 115, § 1, 1971 Tex. Gen. Laws 884, 884-85, amended by Act of May 11, 1993, 73rd Leg., R.S., ch. 269, § 1, 1993 Tex. Gen. Laws 987, 1235-36 (current version at Tex. Lab.Code Ann. §§ 451.001-.003 (Vernon pamph.1995)). Thus, article 8307c provides a cause of action for an employee who has been discharged by her employer for asserting her rights under the workers’ compensation statute.

An employer who has been sued under article 8307c for wrongfully discharging an employee may obtain summary judgment if it shows, by appropriate summary judgment evidence, that there was no causal link between the employee’s compensation claim and the employee’s termination. Trevino v. Corrections Corp. of America, 850 S.W.2d 806, 808 (Tex.App.-El Paso 1993, writ denied); see Hunt v. Van Der Horst Corp., 711 S.W.2d 77, 79 (Tex.App.-Dallas 1986, no writ). The defending employer is entitled to summary judgment if it establishes a legitimate, non-discriminatory reason for the discharge, and the employee fails to produce any evidence of retaliatory motive. Texas Division-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 313 (Tex.1994).

Although Clark contends B & W failed to disprove the “causal connection” element of her cause of action, we disagree. B & W’s summary judgment evidence includes affidavits of various supervisory and administrative personnel. In those affidavits, B & W’s representatives specifically stated that (1) Clark’s termination was unrelated to her initiation of a workers’ compensation claim, and (2) she was terminated solely for falsifying her call reports.

In his affidavit, Clark’s supervisor, Futrell stated he audited Clark’s accounts by B & W management because she was one of the representatives with suspicious call activity. During the audit, Futrell discovered at least four instances of calls reported but not made. When Clark gave no explanation for the discrepancies, Futrell fired her. Futrell stated his decision to fire Clark was based solely on her falsification of call reports, and that he was not aware of her 1991 injury until after the decision to fire her had been made.

*4 Karen Shultz, director of marketing and sales finance, stated in her affidavit that approximately three hundred sales representatives nationwide were audited for unusual call activity. Shultz explained that company policy called for terminating any representative who reported having called on a customer when, in fact, she had not.¹ According to Shultz’s affidavit, twenty-two sales representatives were fired for falsifying call reports.

Although Clark contends she presented a “plethora” of evidence to support her claim, we disagree. Clark offered no evidence that would call into question B & W’s reason for her termination. Although Clark presented her brother’s affidavit in which he claims to have been threatened with termination by B & W for his absences following work-related injuries, these statements do not address Clark’s termination, nor do they expressly refute B & W’s non-discriminatory reason for Clark’s discharge. Clark could have controverted B & W’s summary judgment proof by evidence of facts and circumstances belying the company’s neutral explanation, thereby raising a material issue of fact. Instead, Clark merely denied having falsified any reports. This statement, without more, is insufficient to raise a fact issue. See Carrozza, 876 S.W.2d at 314; see also Moore v. Eli Lilly & Co., 990 F.2d 812, 815 (5th Cir.) (holding summary judgment proof must consist of more than “mere refutation of the employer’s legitimate nondiscriminatory reason”), cert. denied, 114 S.Ct. 467 (1993).

Because B & W established its right to summary judgment by disproving the causal connection element of Clark’s workers’ compensation retaliatory discharge claim and Clark’s evidence failed to raise a fact issue on this point, we conclude the trial judge properly granted B & W’s motion for summary judgment. We overrule Clark’s first point of error.

In her second point of error, Clark contends the trial judge erred in granting summary judgment because B & W failed to prove she was not entitled to recover punitive damages for wrongful termination. In light of our disposition of Clark’s first point of error, we find it unnecessary to address this point of error. See Tex.R.App. P. 90(a).

We affirm the trial court’s judgment.

	Footnotes
1		As part of its summary judgment evidence, B & W included Clark’s deposition in which she identified and discussed a portion of B & W’s policy manual entitled “Time Reporting and Compensation.” Under the heading “Accuracy in Reporting,” the policy states “[a]ny deliberate misrepresentation of the use of company funds or property, of activities performed, or of time engaged in company business is considered an act of dishonesty and constitutes cause for termination of employment.” When asked whether she was aware of that policy, Clark replied: “Yes … [t]hey hammer it into you on a daily basis, so … you heard it probably pretty much every day.”