Court of Appeals of Texas,

Dallas.

Rosie A. LYNCH, Appellant,

v.

BANK OF AMERICA, Appellee.

No. 05-01-01535-CV.

|

July 2, 2002.

Before Justices WHITTINGTON, FRANCIS, and BRIDGES.

OPINION

Opinion By Justice BRIDGES.

*1 Rosie A. Lynch appeals the trial court’s summary judgment in favor of Bank of America on Lynch’s wrongful termination claims. In a single issue, Lynch argues the trial court erred in granting the bank’s motion for summary judgment. We affirm the trial court’s judgment.

In July 1988, Lynch was hired as a teller at the Oak Cliff branch of Republic Bank. Lynch understood that she could quit her job at any time, and the bank could terminate her employment at any time. Republic Bank later merged with NCNB Bank, which merged with Nationsbank of Texas, which eventually merged with appellee, Bank of America. In December 1996, Lynch fell and was injured at the bank where she worked. Lynch underwent surgery, filed a worker’s compensation claim, and eventually returned to work. In April 1999, the bank, then known as NationsBank, merged with Bank of America. On February 7, 2000, Lynch was discharged, and she filed suit alleging she was discharged in retaliation for filing a worker’s compensation claim. The trial court granted the bank’s no-evidence motion for summary judgment, and this appeal followed.

In her single issue, Lynch argues the trial court erred in granting the bank’s motion for summary judgment. Specifically, Lynch asserts she was the only person discharged as part of alleged “downsizing” at the bank, and the bank’s stated reasons for the discharge were pretextual.

A no-evidence motion for summary judgment asserts that there is no evidence of one or more essential elements of a claim upon which the opposing party would have the burden of proof at trial. See Two Thirty Nine Joint Venture v. Joe, 60 S.W.3d 896, 904 (Tex.App.-Dallas 2001, pet. filed). A no-evidence summary judgment is essentially a pretrial directed verdict to which we apply the same legal sufficiency standard of review. Id. Although the nonmoving party is not required to marshal its proof, it must present evidence that raises a genuine issue of material fact on the challenged elements. Id. A no-evidence summary judgment is properly granted if the nonmovant fails to bring forth more than a scintilla of probative evidence to raise a genuine issue of material fact on the challenged elements. Id. In determining whether the nonmovant has met its burden, we review the evidence in the light most favorable to the nonmovant and resolve all doubts in its favor. Id.

A person may not discharge or in any other manner discriminate against an employee because the employee has filed a worker’s compensation claim in good faith. Tex. Lab.Code Ann. § 451.001 (Vernon 1996). To prevail on a retaliatory discharge claim, an employee must establish a causal connection or link between his compensation claim and his discharge. City of Univ. Park v. Van Doren, 65 S.W.3d 240, 248 (Tex.App.-Dallas 2001, no pet.). Circumstantial evidence, and the reasonable inferences from such evidence, can prove the causal connection. Cont’l Coffee Prods. v.. Cazarez, 937 S.W.2d 444, 451 (Tex.1996). The appropriate standard of causation is that the employee’s protected conduct must be such that, without it, the employer’s prohibited conduct would not have occurred when it did. Id. Once the link is established, it is the employer’s burden to rebut the alleged discrimination by showing there was a legitimate reason behind the discharge. Id.

*2 Circumstantial evidence sufficient to establish a causal link between termination and filing a compensation claim includes: (1) knowledge of the compensation claim by those making the decision on termination; (2) expression of a negative attitude toward the employee’s injured condition; (3) failure to adhere to established company policies; (4) discriminatory treatment in comparison to similarly situated employees; (5) evidence that the stated reason for the discharge was false. Id.

Lynch argues the bank manager, Beverly Johnson, knew of Lynch’s injury and compensation claim and had a negative attitude toward Lynch’s injured condition. Specifically, Johnson made negative comments eight or nine times when Lynch had to take time off to go to the doctor. According to Lynch, it was not the custom at branch banks such as the Oak Cliff branch for branch managers like Johnson to hire or fire employees. Instead, the customer service manager customarily performed that function. However, in Lynch’s case, Johnson fired Lynch on the first business day after the bank’s customer service manager left to have some minor surgery. Finally, Lynch argues no other employees at the Oak Cliff branch were fired as a result of “downsizing.”

The record indicates Lynch admitted in deposition testimony that she did not dispute that she was the least experienced employee in the customer service department and had the least tenure. In fact, Lynch knew that the customer service department was being eliminated, and Johnson told her of the department’s elimination when she fired Lynch. Lynch called regarding two other positions, a teller support position and a position with customer service in a bank downtown. Lynch was told there was a freeze on hiring and that they had some displaced employees that had first priority to get available positions. Lynch did not submit any written applications. Lynch asked Johnson about a position within the bank, and Johnson told her she had no idea but Lynch could look on her own.

Johnson testified that her manager, Tyrus Sanders, directed her to cut three full-time equivalent employees in January 2000. As part of the reduction, Johnson transferred two bank tellers to other banking centers and fired Lynch. Approximately fifty full-time equivalent employees were eliminated in the South Dallas region in 2000, and the bank eliminated its customer service departments in nearly all of its banking centers in the Dallas area. At the time Johnson fired Lynch, Johnson said the bank was eliminating positions, and only teller positions were available. However, Lynch could not be a teller because of her restrictions and injuries and the lifting and reaching that were part of a teller’s duties. Lynch asked if she could help with proof work and running checks, which would not entail reaching and making change. Johnson told Lynch she already had an employee doing that. Under these circumstances, we cannot conclude Lynch’s filing of a worker’s compensation claim was such that, without it, the bank’s termination of her employment would not have occurred when it did. Accordingly, we overrule Lynch’s single issue.

*3 We affirm the trial court’s judgment.