Court of Appeals of Texas, Houston (1st Dist.).

Kevin PERKINS, Appellant,

v.

SANDERSON FARMS, INC., Appellee.

No. 01-00-00318-CV.

|

Feb. 8, 2001.

Panel consists of SCHNEIDER, Chief J., and TAFT and BRISTER, JJ.

OPINION

TAFT.

*1 Appellant, Kevin Perkins, sued appellee, Sanderson Farms, Inc., for wrongful termination. Perkins contends the trial court improperly rendered summary judgment in Sanderson Farms’ favor. We review whether Perkins was terminated for a discriminatory reason. We affirm.

Facts

Perkins was a mechanic for Sanderson Farms when he was injured on the job in March 1997. Perkins reported his injuries to Jeff Neblitt, his supervisor. Perkins continued to work after his injury despite complaining of headaches and soreness. In June 1997, Perkins was placed on leave by his physician, Dr. David N. Bailey, so that he could adequately recover from his injury. On July 7, 1997, Perkins signed a “request for leave of absence” indicating that he had received: (1) a Family Medical Leave Act (FMLA) form that was to be completed by his doctor; and (2) notice of Sanderson Farms’ policy on FMLA leave. Dr. Bailey sent Perkins’s progress reports (“Doctor’s Work Status Reports”) to Sanderson Farms approximately every two weeks from June 1997 through March 26, 1998.

On March 26, 1998, Perkins notified Sanderson Farms that he was able to return to work. Sanderson Farms informed Perkins he had been terminated on December 10, 1997 because he had violated its FMLA policy. See 29 U.S.C. § 2612(a) (1999).¹ Specifically, Sanderson Farms maintains that Perkins’s 12-week FMLA leave lasted from June 9, 1997 through September 8, 1997, and was extended until December 10, 1997. Sanderson Farms stated it terminated Perkins because: (1) he had failed to inform Sanderson Farms of his medical condition; and (2) he had not sought an extension of his FMLA leave.

The record contains no evidence that Sanderson Farms informed appellant of his termination until March 26, 1998. Perkins filed suit, alleging Sanderson Farms wrongfully terminated him in retaliation for filing a workers’ compensation claim. Sanderson Farms moved for a no-evidence summary judgment, arguing it terminated Perkins because he violated the company’s absence-control policy by not returning to work before his FMLA leave expired. The trial court granted Sanderson Farms’ motion.

Standard of Review

We review the granting of a no-evidence summary judgment in the light most favorable to the nonmovant, and disregard all contrary evidence and inferences. See Flameout Design & Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex.App.-Houston [1st Dist.] 1999, no pet.). A no-evidence summary judgment is improperly granted if the nonmovant brings forth more than a scintilla of evidence to raise a genuine issue of material fact. See Tex.R.Civ.P. 166a(i); Greathouse v. Alvin Indep. School Dist., 17 S.W.3d 419, 423 (Tex.App.-Houston [1st Dist.] 2000, no pet.).

Retaliation

Perkins presents two issues, which we construe as a single argument challenging the summary judgment rendered in Sanderson Farms’ favor. See Tex.R.App.P. 38.1(e), 38.9. Perkins contends Sanderson Farms used the FMLA as a neutral absence control policy to terminate him in retaliation for his filing a workers’ compensation claim. See Tex.Lab.Code Ann. § 451.001 (Vernon 1996).² Perkins argues there is enough evidence to raise a fact issue that Sanderson Farms terminated him for a discriminatory reason.

*2 An employee asserting a violation of section 451.001 has the initial burden of demonstrating a causal link between the discharge and the filing of the claim for workers’ compensation benefits. Terry v. Southern Floral Co., 927 S.W.2d 254, 257 (Tex.App.-Houston [1st Dist.] 1996, no writ). The burden then shifts to the employer to show a legitimate, nondiscriminatory reason for the discharge. Id. An employer is entitled to summary judgment when such a reason is shown, and the employee does not produce evidence of a retaliatory motive. See Texas Division-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 313 (Tex.1994).

A. Using the FMLA as the Neutral Absence Control Policy

In an attempt to establish the “causal link” in this case, Perkins claims that, after he notified Sanderson Farms of his injuries and filed a workers’ compensation claim, Sanderson Farms “surreptitiously” placed him on leave under the FMLA, and eventually used the FMLA to terminate him. Perkins notes, however, that “chapter 451” of the Texas Workers’ Compensation Act provides a minimum of 104 weeks to an injured worker, whereas the FMLA provides 12 weeks of unpaid leave in any 12-month period. Perkins further contends the workers’ compensation leave does not end when the FMLA leave expires, and uses this fact to assert that Sanderson Farms limited Perkins’s leave in this manner.³ Perkins concludes that Sanderson Farms did not discharge him under a “neutral absence control policy,” and, therefore, had a retaliatory motive.

First, the Texas Workers’ Compensation Act does not support Perkins’s contention. Article 451 nowhere states that an injured worker is entitled to benefits for a minimum of 104 weeks.⁴ Tex.Lab.Code Ann. § 451.001 et seq. (Vernon Supp.2001). Therefore, we reject Perkins’s assertion that the Workers’ Compensation Act provides benefits to an injured worker such as himself for a minimum of 104 weeks. Moreover, Perkins offers no supporting authority when he asserts that Texas courts have held that the shortest absence control period is six months.

B. No Evidence

Perkins does not offer any evidence showing that Sanderson Farms “surreptitiously” placed him on FMLA leave, or that it used the FMLA to terminate him. On the contrary, the record reflects that Sanderson Farms did not act surreptitiously because Perkins knew he was placed on FMLA leave when he signed Sanderson Farms’ “Request for Vacation or Leave of Absence” form. This form clearly indicates he was placed on FMLA leave. Consequently, Perkins’s assertions are merely his subjective beliefs, and do not constitute summary judgment evidence. See Carrozza, 876 S.W.2d at 314.

Perkins further asserts that: (1) Sanderson Farms did not notify Perkins of his termination in December of 1997, even though Dr. Bailey had been sending Perkins’s status reports to Sanderson Farms before his termination; (2) Sanderson Farms did not inform Perkins it had terminated him until March of 1998, even though it was receiving Perkins’s status reports after it terminated him; and (3) there is no evidence that Sanderson Farm gave Perkins any termination paperwork, such as a “Consolidated Omnibus Budget Reconciliation Act” (“COBRA”) documentation.

*3 These facts do not constitute evidence of a retaliatory motive because, even if true, they occurred after Perkins was terminated, and could not constitute the reason for his discharge. Although it is generally possible that an employer’s actions after terminating an employee may show pre-existing retaliatory motives, Perkins has not offered any evidence to connect his termination to Sanderson Farms’ failure to notify him of his termination between December 1997, and March 1998. Therefore, Perkins has not established the causal link between his discharge and his filing of a workers’ compensation claim. See Terry, 927 S.W.2d at 259. Accordingly, the trial court did not err by rendering judgment in Sanderson Farms’ favor.

We overrule Perkins’s sole point of error.

Conclusion

We affirm the judgment of the trial court.

	Footnotes
1		Article 2612(a) provides: Subject to section 2613 of this title, an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period for one or more of the following: … (D) Because of a serious health condition that makes the employee unable to perform the functions of the position of such employee. 29 U.S.C. § 2612(a) (1999).
2		Article 451.001 provides: A person may not discharge or in any other manner discriminate against an employee because the employee has: (1) filed a workers’ compensation claim in good faith…. Tex.Lab.Code Ann. § 451.001(1) (Vernon 1996).
3		Perkins apparently relies on an opinion letter published by the Wage Hour Division of the U.S. Department of Labor to support this proposition. See FMLA-43 Opinion Letter, [21 Wages-Hours] Lab. Rel. Rep. (BNA) 99:3038 (Aug. 24, 1994). The letter, however, merely states that “the law does not prohibit [an] employee’s FMLA 12-week leave entitlement from running concurrently with other leaves of absence….” Id. at 99:3039. Thus, Perkins’s reliance on this letter is misplaced.
4		It is article 401.011that contains a reference to the 104-week period: “Maximum medical improvement” means the earlier of: (A) the earliest date after which, based on reasonable medical probability, further material recovery from or lasting improvement to an injury can no longer reasonably be anticipated; (B) the expiration of 104 weeks from the date on which income benefits begin to accrue; …. Tex.Lab.Code Ann. § 401.011(30)(A)-(B) (Vernon Supp.2001).