Court of Appeals of Texas, Dallas.

John JORDAN, Appellant,

v.

BAE AUTOMATED SYSTEM, Appellee.

No. 05-96-01488-CV.

|

May 15, 1998.

Before MALONEY, MOSELEY and ROACH, JJ.

OPINION

MOSELEY, Justice.

*1 Appellant John Jordan sued BAE Automated System, alleging retaliatory discharge because appellant filed a workers’ compensation claim.¹ Both appellant and BAE filed motions for summary judgment. The trial court granted BAE’s motion for summary judgment and denied appellant’s motion. In two points of error, appellant argues the trial court erred in granting BAE’s motion for summary judgment. We conclude appellant’s points of error are without merit. Therefore, we affirm the trial court’s judgment and issue this opinion.²

A motion for summary judgment will be upheld if the defendant disproves as a matter of law an element of the plaintiff’s cause of action.³ A motion for summary judgment may be supported by deposition transcripts that show that there is no genuine issue of material fact, and that the movant is entitled to judgment as a matter of law on the issues expressly set out in the motion, answer, or other response.⁴ When we review a summary judgment, we accept as true evidence in favor of the nonmovant, indulging every reasonable inference and resolving all doubts in favor of the nonmovant.⁵

Appellant was injured in an on-the-job accident. That night, he took a pain pill that had been prescribed for his wife. BAE’s drug policy prohibited employees from using or consuming illegal drugs. Further, BAE’s drug policy stated that taking a drug prescribed for someone else was illegal and violated the drug policy. The next day, appellant reported the injury to his supervisor and told the supervisor that he had taken one of his wife’s pills. Appellant took a drug test required of all employees injured in on-the-job accidents, and the test confirmed appellant had taken the pill. BAE discharged appellant, stating that appellant violated BAE’s drug policy by taking pain medication prescribed for another person.

Appellant sued BAE, pleading retaliatory discharge as his sole cause of action. By statute, a person may not discharge or otherwise discriminate against an employee because the employee has filed a workers’ compensation claim in good faith.⁶ Thus, to prevail on a motion for summary judgment, BAE had to prove as a matter of law that its discharge of appellant was not retaliatory, that is, that it did not take retaliatory action against appellant because he filed a workers’ compensation claim.⁷ (Although BAE states that there is no indication in the record that appellant filed a workers’ compensation claim, BAE assumes that appellant instituted a proceeding or took some other action protected by the labor code.⁸ Appellant and BAE acknowledge that appellant did not lose time from work.)

Appellant admitted in his deposition that he lost his job because he took a pain pill without a prescription and that taking a pain pill without a prescription violated BAE’s policy. BAE filed appellant’s deposition with the court in support of its motion for summary judgment. Thus, BAE established as a matter of law by competent summary judgment evidence that it terminated appellant for taking a pain pill prescribed for someone else, a violation of BAE’s drug policy, and not because appellant filed a workers’ compensation claim in good faith.

*2 In his first point of error, appellant contends the trial court erred in granting BAE’s motion for summary judgment because BAE’s drug policy is per se discriminatory because it singled out persons who have work-related injuries and required them to submit to a drug test. Whether an employer’s policy discriminates against an employee is not an element of a retaliatory discharge cause of action and is thus not an element that BAE had to disprove as a matter of law in order to prevail on a motion for summary judgment. We overrule appellant’s first point of error.

In his second point of error, appellant contends the trial court erred in granting BAE’s motion for summary judgment because BAE failed to negate that appellant’s workers’ compensation claim was not a factor in appellant’s termination. Appellant argues the affidavit of Jo Ann Marchant, BAE human resources coordinator, did not state the basis of her personal knowledge of the reasons for appellant’s termination and was incompetent summary judgment evidence. Assuming, without deciding, that Marchant’s affidavit was incompetent, the record still supports the trial court’s action. In appellant’s deposition, which is competent summary judgment evidence, he admitted he was discharged because he took a pain pill without a prescription in violation of BAE’s drug policy. We overrule appellant’s second point of error.

Appellant also argues that medical records and other attachments to Marchant’s affidavit were not authenticated. Appellant objected to these attachments in his response to BAE’s motion for summary judgment but failed to obtain a written ruling, signed and entered of record, sustaining his objections.⁹ Thus, appellant has failed to preserve his complaint for review.

Having overruled appellant’s two points of error, we affirm the trial court’s judgment.

	Footnotes
1		See Tex. Lab.Code Ann. § 451.001(1) (Vernon 1996).
2		See Tex.R.App.P. 47.1.
3		Tex.R. Civ. P. 166a(b); see Cathey v. Booth, 900 S.W.2d 339, 441 (Tex.1995) (per curiam).
4		Tex.R. Civ. P. 166a(c).
5		Cathey, 900 S.W.2d at 441 (citing Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985)).
6		Tex. Lab.Code Ann. § 451.001(1) (Vernon 1996).
7		See Texas Division-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 313-14 (Tex.1994) (per curiam).
8		See Tex. Lab.Code Ann. § 451.001(3) (Vernon 1996).
9		See Giese v. NCNB Texas Forney Banking Ctr., 881 S.W.2d 776, 782 (Tex.App.-Dallas 1994, no writ).