Court of Appeals of Texas, Dallas.

Richard GLOVER, Appellant,

v.

SOUTHERN GRAPHIC FINISHERS, INC., Appellee.

No. 05-93-01714-CV.

|

May 10, 1994

Before LAGARDE, BARBER and WHITTINGTON, JJ.

BARBER, Justice.

O P I N I O N

*1 This is an appeal from a summary judgment. Richard Glover brought suit against Southern Graphic Finishers, Inc. (SGFI) alleging wrongful discharge pursuant to article 8307c of the Texas Workers’ Compensation Act¹ and tortious interference by SGFI with Glover’s statutory rights provided by the Texas Workers’ Compensation Act. The trial court granted SGFI’s special exception to the claim for tortious interference with Glover’s statutory rights, and subsequently granted SGFI’s motion for summary judgment on the grounds that Glover did not show a causal connection between his discharge and the filing of the workers’ compensation claim.

On appeal, Glover asserts that the trial court erred in granting summary judgment in SGFI’s favor because: (1) the only ground asserted in SGFI’s summary judgment motion fails to negate any element of Glover’s cause of action under article 8307c of the Texas Workers’ Compensation Act; and (2) SGFI failed to conclusively establish as a matter of law that there is no causal link between Glover’s discharge and his workers’ compensation proceeding.² We reverse the trial court’s judgment and remand this case to the trial court for further proceedings.

FACTUAL AND PROCEDURAL HISTORY

Glover received a work-related injury on August 28, 1990, while employed as plant manager by SGFI. Terry Rayner, the president of SGFI, took Glover to the hospital for treatment of the injury. Rayner filed an employer’s first report of injury with the Texas Workers’ Compensation Commission, dated August 28, 1990. Glover began receiving compensation benefits and medical benefits from SGFI’s workers’ compensation insurance carrier immediately after his injury. Glover returned to work on light duty in October 1990. SGFI discharged Glover on November 15, 1990, about three weeks after Glover returned to work.

Glover filed suit against SGFI, alleging that SGFI discharged Glover in violation of article 8307c. SGFI moved for summary judgment, and the trial court granted SGFI’s motion.

STANDARD OF REVIEW

In reviewing a summary judgment, we apply the following standard:

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

2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non- movant will be taken as true.

*2 3. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor.

Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). Summary judgment is not intended to deprive litigants of their right to a full hearing on the merits of any real issue of material fact. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 931 (1952). The purpose of the summary judgment rule is to eliminate patently unmeritorious claims or untenable defenses. Id. The trial court’s duty is to determine if there are any material fact issues to try, not to weigh the evidence or determine its credibility and try the case on affidavits. Id.

A movant must show its entitlement to summary judgment on the issues expressly presented to the trial court by conclusively proving all essential elements of its cause of action or defense as a matter of law. See Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex. 1972). To show its right to a summary judgment, a defendant must either disprove all elements of the plaintiff’s cause of action as a matter of law or establish all elements of its defense as a matter of law. See Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970). Where the summary judgment order does not specify the grounds on which it is based, we will uphold the order on any ground asserted by the movant that is supported by the evidence. See Rogers v. Ricane Enter., Inc., 772 S.W.2d 76, 79 (Tex. 1989). When a motion for summary judgment asserts specific grounds, summary judgment cannot be upheld on grounds which were not asserted, even if the evidence supports the unasserted grounds. McConnell v. Southside Indep. School Dist., 858 S.W.2d 337, 342 (Tex. 1993).

CAUSAL LINK

In his first point of error, Glover asserts that the trial court erred in granting SGFI’s motion for summary judgment because the only ground asserted by SGFI fails to negate any element of Glover’s cause of action. In his second point of error, Glover contends that the trial court erred in granting SGFI’s motion for summary judgment because SGFI failed to conclusively establish, as a matter of law, that there is no causal link between Glover’s discharge and his workers’ compensation proceeding.

Article 8307c provided:

Section 1. 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.

Act of Apr. 22, 1971, 62nd Leg., R.S., ch. 115, 1971 Tex. Gen. Laws 884, 884-85, repealed by Act of May 12, 1993, 73rd Leg., R.S., ch. 269, § 5(1), 1993 Tex. Gen. Laws 1273, 1273 (current codification at Tex. Lab. Code Ann. §§ 451.001–451.003 (Vernon 1994)). To maintain a cause of action under article 8307, the injured employee must show a causal connection between the workers’ compensation claim and the alleged wrongful discharge. Borden, Inc. v. Guerra, 860 S.W.2d 515, 522 (Tex. App.-Corpus Christi 1993, writ dism’d by agr.). Whether there is a causal connection is a question of fact. See Hunt v. Van Der Horst Corp., 711 S.W.2d 77, 79-80 (Tex. App.-Dallas 1986, no writ); Palmer v. Miller Brewing Co., 852 S.W.2d 57, 61 (Tex. App.-Fort Worth 1993, writ denied).

*3 Glover’s original petition alleged that he was discriminated against due to his pursuit of the statutory rights provided by articles 8306 and 8307 of the Texas Workers’ Compensation Act (Act). Glover further alleged that SGFI discharged him in violation of article 8307c of the Act.

SGFI moved for summary judgment on the grounds that the summary judgment evidence showed there is no causal connection between SGFI’s decision to terminate Glover’s employment and Glover’s claim for workers’ compensation benefits. SGFI alleged:

The undisputed summary judgment evidence establishes that Plaintiff did not hire an attorney or file a workers’ compensation claim with regard to his alleged injury until after SGFI terminated his employment. Moreover, Plaintiff did not confer with any SGFI management personnel regarding the retention of an attorney or the filing of a workers’ compensation claim for his termination. Thus, no material issue of fact exists regarding a causal connection between SGFI’s decision to discharge Plaintiff and Plaintiff’s claim for workers’ compensation benefits. (citations to record omitted).

SGFI urged the foregoing specific facts as its basis for summary judgment in that Glover failed to show a causal connection between the institution of the proceeding and his termination. The undisputed facts reflect that the claim was instituted before termination when Glover’s employer was notified of Glover’s injury and notice of injury was filed. See Hunt, 711 S.W.2d at 80 (workers’ compensation proceeding instituted for purposes of article 8307c when employee informs employer of on-the-job injury and that employee is going home and going to see doctor). The specific grounds alleged by SGFI did not negate Glover’s cause of action. Therefore, summary judgment was improper.

On appeal, SGFI contends generally that Glover failed to establish a causal connection between his workers’ compensation proceeding and his termination. Even if SGFI’s motion for summary judgment generally alleges that Glover did not show a causal connection, we conclude that summary judgment was improper. Glover may maintain an action under article 8307c if there is a causal connection between his workers’ compensation claim and his termination even if this were not the only reason he was fired. Hunt, 711 S.W.2d at 79; see also Mid–South Bottling Co. v. Cigainero, 799 S.W.2d 385, 390 (Tex. App.- – Texarkana 1990, writ denied). Proof of causation may be established by direct or circumstantial evidence and the reasonable inferences drawn from that evidence. Palmer, 852 S.W.2d at 61; Borden, Inc., 860 S.W.2d at 522. Evidence of discriminatory discharge may include:

1) knowledge of the claim by those making the decision to terminate;

2) a negative attitude toward the employee’s injured condition;

3) failure to follow company policy when disciplining an employee who made a claim; and

4) discriminatory treatment of this employee when compared to the treatment of other employees.

*4 Palmer, 852 S.W.2d at 61.

Glover presented the following summary judgment evidence showing a causal connection between the institution of his workers’ compensation claim and his discharge: Glover was injured on the job on August 28, 1990. SGFI was aware that a workers’ compensation proceeding had been instituted. SGFI’s president was unhappy about Glover’s injury affecting the operation of the business, called Glover on several occasions to pressure him into returning to work, and wanted Glover to reschedule therapy appointments so as not to interfere with the workday. Glover was promoted about one year prior to his injury, and received a pay raise sometime before his injury. After his injury, Glover was disciplined differently than other employees, and was not given the opportunity to conform to the expectations of SGFI’s president. Steve Stevenson, SGFI’s sole stockholder, did not conduct interviews with the employees of SGFI to evaluate Glover’s performance until after Glover was injured.

We take Glover’s evidence as true and indulge every inference in his favor. Nixon, 690 S.W.2d at 548-49. Viewing the evidence in this light, we conclude that SGFI did not meet its summary judgment burden of showing there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. The trial court erred in granting SGFI’s motion for summary judgment. We sustain Glover’s first and second points of error.

We reverse the trial court’s summary judgment and remand this case to the trial court for further proceedings.

	Footnotes
1		Act of Apr. 22, 1971, 62nd Leg., R.S., ch. 115, 1971 Tex. Gen. Laws 884, 884-85, repealed by Act of May 12, 1993, 73rd Leg., R.S., ch. 269, § 5(1), 1993 Tex. Gen. Laws 1273, 1273 (current codification at Tex. Lab. Code Ann. §§ 451.001-451.003 (Vernon 1994)). For purposes of this opinion, we will refer to the prior statute as article 8307c.
2		In his brief, Glover also raised two points of error concerning the trial court’s sustaining SGFI’s special exception and dismissing Glover’s claim regarding tortious interference with his statutory rights. However, during oral argument, Glover’s counsel withdrew those points of error. Therefore, we will not address them.