Court of Appeals of Texas, Dallas.

Fisseha BIHONEGNE, Appellant

v.

CHRYSLER TECHNOLOGIES AIRBORNE SYSTEMS, INC., Appellee.

No. 05-96-02031-CV.

|

Feb. 11, 1999.

Before Justices MALONEY, WRIGHT, and O’NEILL.

OPINION

MICHAEL J. O’NEILL, Justice.

*1 This is a retaliatory discharge case. Appellant Fisseha Bihonegne appeals a take-nothing summary judgment granted for appellee Chrysler Technologies Airborne Systems, Inc. (CTAS). In seven points of error, appellant contends the trial court erred in granting CTAS’s motion for summary judgment. We affirm.

Factual Background

Appellant was employed by CTAS as a sheet-metal mechanic. On October 19, 1992, in the course and scope of his employment with CTAS, appellant suffered a back injury. Appellant’s injury precluded him from working, and he took a medical leave of absence. On March 16,1993, appellant’s doctor released him for light work duty with the restriction that he not lift anything in excess of twenty pounds. However, appellant’s job duties regularly required him to lift in excess of fifty pounds. Because CTAS had no positions appellant could perform with his lifting restriction, he was told to remain home until he was fully released.

On April 1, 1993, CTAS sent appellant a letter informing him that effective November 13, 1992, CTAS had changed its leave of absence policy so that a leave of absence would not extend beyond six months. (CTAS’s prior policy was that a leave of absence would not extend beyond ninety days.) This letter was sent to all employees who were on leave of absence. In the letter, appellant was specifically and expressly told that his leave of absence would not extend beyond October 1, 1993. Thereafter, on July 13, 1993, appellant filed a workers’ compensation claim. On October 1, 1993, CTAS terminated appellant.

Appellant sued CTAS for retaliatory discharge under the workers’ compensation act. See Tex.Lab.Code Ann. § 451.001 (Vernon 1996). CTAS moved for summary judgment asserting it had a legitimate nondiscriminatory reason for terminating appellant. Specifically, it asserted appellant was terminated because of the automatic application of its leave of absence policy. The trial court granted CTAS’s motion for summary judgment. This appeal followed.

Summary Judgment

1. Standard of Review

The standard for reviewing a summary judgment is well established. Summary judgment is proper only when the movant establishes there is no genuine issue of material fact and it is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(c); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant must be taken as true. Nixon, 690 S.W.2d at 548-49. Every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor. Id. A defendant is entitled to summary judgment if it conclusively negates an element of the plaintiff’s cause of action or conclusively establishes all elements of its affirmative defense. See Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 27 (Tex.1990).

2. Retaliatory Discharge

*2 An employer may not terminate or in any other manner discriminate against an employee because the employee has filed a workers’ compensation claim in good faith. See Tex.Lab.Code Ann. § 451.001(1) (Vernon 1996). An employer who has been sued for retaliatory discharge under the workers’ compensation act may obtain summary judgment if it shows there was no causal link between the employee’s workers’ compensation claim and the employee’s termination. Trevino v. Corrections Corp. of Am., 850 S.W.2d 806, 808 (Tex.App.-El Paso 1993, writ denied); see also Hunt v. Van Der Horst Corp., 711 S.W.2d 77, 79-80 (Tex.App.-Dallas 1986, no writ). The employer can meet this burden if it establishes a legitimate nondiscriminatory reason for the discharge. See Texas Division-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 313 (Tex.1994) (per curiam). To avoid summary judgment, the employee must raise a material issue of fact on retaliatory motive. Id.

3. Application

We must first determine whether CTAS presented sufficient summary judgment evidence to establish appellant was terminated for a legitimate nondiscriminatory reason. See Carrozza, 876 S.W.2d at 313. After reviewing the record, we conclude CTAS met this burden by showing appellant was terminated because of CTAS’s leave of absence policy. It is undisputed that at the time of appellant’s termination, CTAS had a policy that no leave of absence would be extended for more than six months. It is also undisputed that appellant was terminated six months after being notified of this policy. Uniform enforcement of a reasonable absence-control provision does not constitute retaliatory discharge. Carrozza, 876 S.W.2d at 313. Because CTAS met its burden to prove a legitimate nondiscriminatory reason for appellant’s discharge, it became appellant’s burden to come forward with summary judgment evidence to raise a material issue of fact that CTAS had a retaliatory motive for terminating him. See Carrozza, 876 S.W.2d at 313.

To show a retaliatory motive, appellant relies primarily on the temporal proximity between the date he filed his workers’ compensation claim and the date he was terminated, a period of seventy-seven days.¹ He asserts this alone is sufficient to raise a fact issue on CTAS’s retaliatory motive. We disagree.

Appellant cites no authority for the proposition that temporal proximity by itself is sufficient to raise a fact issue on retaliatory motive under the workers’ compensation act. Instead, he directs us to cases where temporal proximity, in addition to other facts, was evidence of a retaliatory motive. See Worsham Steel Co. v. Arias, 831 S.W.2d 81, 84 (Tex.App.-El Paso 1992, no writ) (employee terminated a few days after work-related injury coupled with evidence employer had a negative attitude toward workers’ compensation claims generally and employee’s injury specifically); Chemical Express Carriers, Inc. v. Pina, 819 S.W.2d 585, 590 (Tex.App.-El Paso 1991, writ denied)(employee terminated one month after filing claim coupled with evidence that employer told employee that he was being terminated because he filed a “lawsuit”); see also Porterfield v. Galen Hosp. Corp., 948 S.W.2d 916, 919-20 (Tex.App.-San Antonio 1997, writ denied) (employee terminated one week after filing claim coupled with evidence employer had a negative attitude toward the employee’s injury and her claim); Martin v. Texas Dental Plans, Inc., 948 S.W.2d 799, 802 (Tex.App.-San Antonio 1997, writ denied) (employee terminated six days after filing claim coupled with evidence that articulated reason for termination was false).

*3 Here, CTAS terminated appellant almost a year after the work-related injury and over two months after he filed his claim. There was no evidence of any animus against appellant regarding his injury or the workers’ compensation claim. To the contrary, appellant stated that Linda,² the CTAS representative responsible for workers’ compensation benefits, always treated him well and made no negative statements to him. Furthermore, CTAS notified appellant clearly and unequivocally before he filed his claim that his leave of absence would not extend beyond October 1, 1993. We conclude the decision to terminate appellant and its timing were not motivated by appellant’s claim. Thus, any temporal proximity shown did not raise a fact issue on retaliatory motive.

In reaching our decision, we necessarily reject appellant’s assertion that fact issues exist whenever an employee is terminated less than ninety days after filing a claim. To support this contention, appellant relies on a provision of the whistleblower statute which creates a rebuttable presumption that an employee was terminated for making a report if the employee was terminated ninety days after making the report. See Tex.Gov’t.Code Ann. § 554.004 (Vernon Supp.1999). He asserts that because temporal proximity in a whistleblower case gives rise to a presumption of causation, it should automatically give rise to an inference of causation in a workers’ compensation case. We disagree. The legislature elected to provide for the presumption in the whistleblower statute and not in the workers’ compensation act. Because we presume every word excluded from a statute was excluded for a reason, the presumption appellant relies on is not applicable and cannot be used to raise a fact issue. See Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 659 (Tex.1995). Nor can we logically conclude that an automatic inference of causation exists whenever an employee is discharged less than ninety days after filing a claim. Instead, we determine whether a reasonable inference arises by reviewing each case on its own facts. As noted above, no such reasonable inference exists under the facts of this case.

Appellant also asserts fact issues exist on whether CTAS had a retaliatory motive because before he filed his claim, Linda told him he could return to work when he was fully released. Thus, he suggests that Linda’s statements showed that CTAS’s leave of absence policy did not apply to him and that invoking the policy was a pretext for terminating him. Again, we disagree. The summary judgment evidence shows that when appellant attempted to return to work on a partial release, Linda told him there was no light duty work and to come back when he was fully released. Contrary to appellant’s suggestion, Linda’s statement does not show CTAS’s leave of absence policy would not apply to appellant.³

Finally, appellant asserts that CTAS’s failure to provide summary judgment evidence from Jerry Wall, the person who signed his termination letter, creates an inference against CTAS and thus raises a fact issue on retaliatory motive. Competent summary judgment evidence, including the deposition testimony of Morris Hanchey, showed that CTAS terminated appellant for violating CTAS’s leave of absence policy. Hanchey authorized appellant’s termination and was Wall’s supervisor. Appellant does not dispute that Hanchey was competent to testify to the reasons for his termination.

*4 Appellant relies on several cases which state a party’s failure to produce evidence within his control raises a presumption that the evidence would be adverse. See John Deere Co. v. May, 773 S.W.2d 369, 377 (Tex.App.-Waco 1989, writ denied); Edwards v. Shell Oil Co., 611 S.W.2d 904, 907 (Tex.Civ.App.-Eastland 1981, writ ref’d n.r.e.); Texas Power & Light Co. v. Walker, 559 S.W.2d 403, 406 (Tex.Civ.App.-Texarkana 1977, no writ); Dunn Bros. Pipe Line Contractors v. Caldwell, 224 S.W.2d 765, 767 (Tex.Civ.App.-Galveston 1949, no writ). These were not, however, summary judgment cases. Appellant directs us to no case in which such an inference raised a fact issue for purposes of summary judgment. The absence of evidence that could have been produced by the movant is not evidence and will not create a fact issue for the nonmovant.

We conclude CTAS provided a legitimate nondiscriminatory reason to terminate appellant. After carefully reviewing the record, we find no summary judgment evidence which would suggest hostility toward appellant’s injury or his workers’ compensation claim or a retaliatory motive. See Carrozza, 876 S.W.2d at 313. Consequently, the trial court properly granted CTAS’s motion for summary judgment. We overrule appellant’s seven points of error and affirm the trial court’s judgment.

	Footnotes
1		At trial, CTAS objected to appellant’s summary judgment evidence. The trial court did not rule on CTAS’s objections. Therefore, appellant asserts CTAS waived any defects in form contained in the summary judgment evidence. See Giese v. NCNB Tex. Forney Banking Ctr., 881 S.W.2d 776, 782 (Tex.App.-Dallas 1994, no writ). We agree. Therefore, we will consider appellant’s summary judgment evidence irrespective of any defects in form. See id.
2		At his deposition, appellant indicated he did not know “Linda’s” last name. Her last name is spelled various ways in the record including Pavlik, Pollack, and Pawvlik. We will refer to her simply as “Linda.”
3		Although not argued in his brief as a ground for reversal, appellant suggested during oral argument that the stated reason for termination was pretextual because: (1) appellant was not terminated under the former policy ninety days after he began his leave, and (2) he was not terminated six months from the effective date of the change in policy. At the time of the change in policy, appellant’s leave had not exceeded ninety days. Therefore, there is nothing suspicious in CTAS’s failure to terminate appellant under the former policy. Nor is there a reasonable inference of a retaliatory motive from CTAS’s decision to terminate employees on a leave of absence six months from the date they were notified of the new policy, rather than six months from the date of the effective change in policy. This decision, if anything, benefitted appellant. Furthermore, appellant was informed of the change in policy and how it would apply to him before he filed his workers’ compensation claim. Consequently, there is no reasonable inference of a retaliatory motive from the manner in which CTAS applied the new policy.