Court of Appeals of Texas, Dallas.

Jamie L. PEOPLES, Appellant

v.

DALLAS BAPTIST UNIVERSITY, Appellee.

No. 05-95-00583-CV.

|

May 14, 1996.

Before MALONEY, MORRIS, and HANKINSON, JJ.

OPINION

HANKINSON, Justice.

*1 Jamie L. Peoples appeals a summary judgment granted in favor of Dallas Baptist University (the “University”). In three points of error, Peoples contends the trial court erred in granting summary judgment on her causes of action for wrongful discharge, discharge in violation of the University’s specified procedures, and retaliatory discharge in violation of the Texas Labor Code. We affirm the trial court’s judgment.

BACKGROUND AND PROCEDURAL FACTS

Peoples began working as an employee of the University on February 21, 1990. She worked as a custodial housekeeper at the University’s campus. Her supervisors were Robert Joe Worley, Alvina Worley, and Marvin Rutherford. The position required Peoples’s presence on the job Monday through Friday during the University’s regular business hours. People’s absence from work caused the shifting of employee work schedules, so other employees could complete her assigned tasks.

Peoples injured her knee while working at the University on March 15, 1993. Peoples notified the University of the injury and made a claim for workers’ compensation benefits. Peoples testified in her deposition that sometime in 1990 or 1991 she injured her foot while working. An incident report states that Peoples injured her foot while working on October 30, 1991. Peoples testified that Robert Worley allowed her time to take off from work to go to the doctor for her injury whenever she needed to do so. Only in 1993 when Peoples began seeing the doctor “often [sic] than [Worley] wanted me to, that’s when we started having [a] problem [with me going to the doctor].”

Robert Worley testified in his affidavit that Peoples’s work attendance was erratic and unpredictable. The University spoke to Peoples about excessive absenteeism several times during her tenure. Early in October 1993, Peoples received from Rutherford a written notice about her absenteeism from Rutherford. Rutherford requested Peoples respond in writing with a plan to resolve her attendance problem. Both Robert Worley and Peoples testified that Peoples failed to respond orally or in writing.

Instead, on October 8, 1993, Peoples submitted a written request for leave without pay for October 12, 1993. Rutherford denied the request in writing and requested Peoples review the University’s absence policy he attached to the written denial. Although the University denied her request and Peoples understood she could not take unapproved leave, Peoples was absent from work on October 12, 1993.

The University terminated Peoples on October 14, 1993. Worley testified that the University terminated Peoples’s employment because of her frequent, prolonged and erratic absenteeism, her failure to follow University absence policy, and insubordination to her supervisors. Rutherford testified in his deposition that the University terminated Peoples for insubordination after Rutherford and Worley met with her to talk about her attendance.

Peoples filed this suit and asserted in her amended petition causes of action for: (1) wrongful discharge; (2) discharge in violation of the University’s specified procedures; and (3) retaliatory discrimination in violation of the Texas Labor Code. The University filed a motion and amended motion for summary judgment, contending it was entitled to judgment as a matter of law because: (1) Peoples was an “at-will” employee and had no evidence establishing a contract that negated the “at-will” relationship; (2) no law exists in Texas to support a cause of action for discharge in violation of an employer’s specified procedures; and (3) no evidence exists to establish a causal link between her discharge and her claim for workers’ compensation. The trial court conducted a hearing on the University’s motion and, after considering the evidence and the arguments of counsel, granted the motion on all causes of action without specifying the basis for the ruling. This appeal followed.

STANDARD OF REVIEW

*2 This Court reviews a summary judgment de novo to determine whether a party’s right to prevail is established as a matter of law. See Capitan Enters., Inc. v. Jackson, 903 S.W.2d 772, 775 (Tex.App.-El Paso 1994, writ denied). An appellate court follows well-established procedures when reviewing a summary judgment:

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 summary 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; and

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 for a defendant is proper when the summary judgment evidence negates an essential element of the plaintiff’s cause of action as a matter of law or conclusively establishes all elements of an affirmative defense as a matter of law. See Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 27 (Tex.1990).

WRONGFUL DISCHARGE AND DISCHARGE IN VIOLATION OF THE UNIVERSITY’S SPECIFIED PROCEDURES

In her first two points of error, Peoples contends the trial court erred in granting the University’s summary judgment on her causes of action for wrongful discharge and discharge in violation of the University’s specified procedures. Specifically, Peoples contends that: (1) the University failed to negate a necessary element of her wrongful discharge claim; and (2) she presented competent evidence that the University did not comply with its written procedural manual involving work-related injuries and sick leave.

To pursue a cause of action for wrongful termination, an employee must establish: (1) that he and his employer have a contract that specifically limits the right to terminate the employment; and (2) that the contract is in writing. See City of Alamo v. Montes, 904 S.W.2d 727, 733 (Tex.App.-Corpus Christi 1995, n.w.h.) (citing Weber v. M.W. Kellogg Co., 720 S.W.2d 124, 128 (Tex.App.-Houston [14th Dist.] 1986, writ ref’d n.r.e.)). Texas law provides that employment is “at-will” with the term of service left to the discretion of the employer or the employee. Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483, 489 (Tex.1991)); see City of Alamo, 904 S.W.2d at 732 (citing Federal Express Corp. v. Dutschmann, 846 S.W.2d 282, 283 (Tex.1993)). Employment for an indefinite term may be terminated at will and without cause. Schroeder, 813 S.W.2d at 489. Thus, an “at-will” employee, one without a written contract expressly limiting the right to terminate the employment, is precluded from bringing an action for wrongful discharge. See Schroeder, 813 S.W.2d at 489; City of Alamo, 904 S.W.2d at 732-33; cf. Winters v. Houston Chronicle Publishing Co., 795 S.W.2d 723, 724 & n. 1 (Tex.1990)(listing numerous statutory exceptions and narrow common law exception to doctrine). Our review of both Peoples’s and the University’s briefs reflects that the parties agree Peoples is an “at-will” employee.¹ Because Peoples’s status as an “at-will” employee precludes her cause of action for wrongful discharge, the trial court did not err in granting summary judgment on this cause of action. See Schroeder, 813 S.W.2d at 489; City of Alamo, 904 S.W.2d at 732-33.

*3 A review of Peoples’s first amended petition reveals that Peoples alleged the University established rules and procedures involving vacation and sick pay and breached those policies and procedures by terminating Peoples for excessive absenteeism. Peoples’s first amended response to the University’s first amended motion for summary judgment opposed summary judgment in part on the ground that the University failed to follow its policy regarding “proper handling of workers’ compensation claims.” Through her cause of action for discharge in violation of the University’s specified procedure, Peoples does nothing more than restate her cause of action for wrongful discharge in terms of specific conduct involving the University’s policies, rules, and procedures. We have concluded Peoples’s “at-will” employment status precludes an action for wrongful discharge. See Schroeder, 813 S.W.2d at 489; City of Alamo, 904 S.W.2d at 732-33. Her “at-will” employment status, therefore, precludes this cause of action as well. The trial court did not err in granting summary judgment on Peoples’s purported cause of action for violation of University procedures. We overrule Peoples’s first and second points of error.

RETALIATORY DISCHARGE

In her third point of error, Peoples contends the trial court erred in granting summary judgment on her retaliatory discharge cause of action. Specifically, Peoples argues that she produced substantial material facts establishing a causal link between her wrongful discharge and her claim for workers’ compensation benefits.

An employee may not be discharged or in any other manner discriminated against by any person because the employee has, among other things, filed a workers’ compensation claim in good faith. Tex. Labor Code Ann. § 451.001 (Vernon Pamph.1996) (formerly Tex.Rev.Civ. Stat. Ann. art. 8307c). In a summary judgment proceeding, the employer, as movant, must establish as a matter of law that the discharge had no causal link to the filing of the employee’s compensation claim. See Texas Division-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 313 (Tex.1994) (per curiam). The employer can meet this burden by showing a legitimate reason for the employee’s discharge. See id. at 313-14. The employee must respond with evidence raising a material issue of fact that her claim for worker’s compensation benefits was a determining factor or causal link in her discharge. See id. Thus, the employee’s evidence must necessarily raise a material issue of fact relating to the employer’s stated legitimate reason. See id.

The University presented Worley’s affidavit and portions of Peoples’s deposition testimony as summary judgment evidence. Peoples’s summary judgment evidence also included portions of her own deposition testimony, as well as portions of the deposition testimony of Rutherford and Alvina Worley. Peoples testified that she received Rutherford’s October 5, 1993 written notice discussing her excessive absenteeism. In that notice, Rutherford requested that Peoples provide him a written response addressing how she intended to resolve her absenteeism problem. Peoples failed to respond orally or in writing.

*4 Instead, Peoples requested leave without pay for October 12, 1993. Rutherford denied her request and personally handed to Peoples the written denial with the University’s attendance policy attached. Because Peoples was leaving for the day and Rutherford had someone with him in his office, she only responded that she had to go to the doctor. Peoples testified she understood the University’s February 1990 policy of granting leave without pay only for an important, compelling reason.

Worley and Rutherford met with Peoples on October 14, 1993. Worley reviewed the University’s attendance policy with Peoples. Worley asked Peoples why she failed to respond to Rutherford’s October 5th notice. Peoples testified she told Worley that she refused to write that she “wouldn’t go to the doctor when they denied me of going [because] it would be wrong to put that down and I know that I was going to the doctor.” Worley asked Peoples why she failed to report to work on October 12th. Peoples testified she told Worley, “whenever I have a doctor’s appointment, I was going to take off.” Worley asked her whether she intended to go to the doctor even if he denied her request. Peoples responded affirmatively and stated that she told Worley she was hurt on the job and would go to the doctor any time she had an appointment.

Peoples admitted that Worley and Rutherford told her that if her injuries were related to an on-the-job injury, then the University would schedule appointments with its doctors and pay for her medical treatment. Peoples refused to allow the University to schedule appointments with other doctors because Parkland Hospital doctors for years had treated her for all her medical needs. Peoples acknowledged that her October 12th appointment was for diabetes testing and not for her on-the-job injury. Peoples understood the University fired her because: (1) she missed too many days going to the doctor; and (2) she missed work on October 12th after the University denied her request for leave without pay. Peoples also testified that Rutherford fired her because she stated she had been injured on the job and would continue to go to the doctor even if her supervisor denied her request for leave from work. Peoples admitted she received medical treatment for conditions other than her work injury when she took leave from work.

Worley testified by affidavit that the University terminated Peoples’s employment because of her frequent, prolonged and erratic absenteeism, her failure to follow University absence policy, and insubordination to her supervisors. Rutherford testified in his deposition that the University terminated Peoples for insubordination after the October 14th meeting called for the purpose of speaking to Peoples about her attendance.

We conclude that this record establishes as a matter of law a legitimate reason for the University’s termination: Peoples’s insubordination to her supervisors. See Carozza, 876 S.W.2d at 313-14. Our review of the record further leads us to conclude Peoples failed to offer any controverting evidence of a causal link between her termination and her claim of injury. Peoples argues that Rutherford’s deposition testimony contradicts Worley’s affidavit testimony that the University terminated her for excessive absenteeism, creating a material fact issue precluding summary judgment. Regardless of the existence of this disputed evidence, we further conclude that termination for excessive absenteeism does not raise a material fact issue establishing the causal link required in a retaliatory discharge claim under the Texas Labor Code: that the University terminated Peoples because she filed a workers’ compensation claim in good faith. Tex. Labor Code Ann. § 451.001; see Carozza, 876 S.W.2d at 313-14.

*5 Because the University established by uncontroverted evidence that it terminated Peoples for a legitimate reason and Peoples offered no causal link evidence, the trial court did not err in granting summary judgment on this cause of action. We overrule Peoples’s third point of error.

We affirm the trial court’s judgment.

	Footnotes
1		Peoples concedes at page 2 of her brief that she “was employed on an ‘at-will’ basis.”