Court of Appeals of Texas, Dallas.

Pat BURANDT, Appellant,

v.

GENERAL CABLE CORPORATION, Appellee.

No. 05-96-01337-CV.

|

Oct. 1, 1998.

Before Justices MALONEY, CHAPMAN, and MORRIS.

OPINION

FRANCES MALONEY, Justice.

*1 Pat Burandt sued General Cable Corporation (Cable) for wrongful termination in retaliation for filing a workers’ compensation claim. The court granted General Cable’s motion for summary judgment. In her sole point of error, Burandt contends that the trial court erred in granting the summary judgment motion. We affirm the trial court’s judgment.

BACKGROUND

Cable employed Burandt as an inventory and shipping coordinator at its Plano, Texas plant. In November of 1994, she fell and injured her knee while at work. She reported this injury to her supervisor, but did not seek medical attention or file a worker’s compensation claim at the time. The following February, she consulted her doctor about the injury. Burandt’s doctor told her not to return to work and sent a work release authorization form to Cable. Cable then reported Burandt’s injury to its worker’s compensation carrier.

On March 4, 1995, while she was on medical leave, Burandt received a letter terminating her employment with Cable. The next day, she received another letter, stating that her termination was part of a reduction in force. Burandt sued Cable for wrongful discharge under section 451.001 of the Texas Labor Code (the Anti-Retaliation Law).

MOVANT’S SUMMARY JUDGMENT EVIDENCE

Cable attached as summary judgment evidence the affidavit testimony from Frank Zorbino, Cable’s vice president of operations, Richard Bennett, the Plano plant manager, and Glen Slavik, Plano shipping department manager. The affidavits contend that Cable terminated Burandt because of a reduction in force at its Plano plant.

Zorbino decided to terminate three salaried employees at the Plano plant as a reduction in force in February 1995. He directed Bennett to eliminate three positions at the Plano plant. Bennett decided one of those three employees would come from Slavik’s department. Slavik determined to eliminate Burandt’s position because the other employees in the department were cross-trained and could easily absorb Burandt’s duties.

NONMOVANT’S SUMMARY JUDGMENT EVIDENCE

Burandt attached the workers’ compensation insurance policy, workers’ compensation claim forms of nine employees that were terminated or laid off within six months after filing claims,¹ a letter confirming separation benefits from an employee not included in the reduction in force, her letter confirming separation benefits, and her letter of termination as summary judgment evidence. Although the affidavits alleged (1) management hostility toward employees who filed worker’s compensation claims, (2) a correlation between Cable’s workers’ compensation insurance policy premiums, and (3) the shipping department employees required overtime, these allegations are not supported by any evidence.

SUMMARY JUDGMENT

In her sole point of error, Burandt contends the trial court erred in granting summary judgment.² Specifically, she argues Cable’s summary judgment affidavits submitted in support of its second motion for summary judgment are deficient. She argues Cable must submit proof her workers’ compensation claim was not a factor in its decision to terminate her. Cable responds that Burandt neither produced any evidence of a causal link between her workers’ compensation claim and her termination nor evidence controverting General Cable’s stated reason for her discharge.

*2 Burandt contends the trial court improperly granted summary judgment because her own summary judgment evidence raised a question of material fact. Specifically, she argues Cable never obtained rulings on objections it raised to portions of her affidavits. Burandt also contends her affidavits, with or without the objected-to portions, demonstrated a causal link between her termination and her workers’ compensation claim and controverted Cable’s stated reason for her discharge.

1. Standard of Review

The standard of review for summary judgment is well established. Tex.R. Civ. P. 166a(c); see McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex.1993); Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 23 (Tex.1990); Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985); Gaines v. Hamman, 163 Tex. 618, 626, 358 S.W.2d 557, 563 (1962); Gulbenkian, 252 S.W.2d at 931; Ross v. Texas One Partnership, 796 S.W.2d 206, 209 (Tex.App.-Dallas 1990), writ denied per curiam, 806 S.W.2d 222 (Tex.1991).

2. Applicable Law

A person may not discharge or discriminate against an employee because the employee has (1) filed a workers’ compensation claim in good faith, (2) hired a lawyer to represent the employee in a workers’ compensation claim, (3) instituted or caused to be instituted in good faith a workers’ compensation proceeding, or (4) testified or is about to testify in a workers’ compensation proceeding. Tex. Lab.Code Ann. § 451.001 (Vernon 1996). Unless one of these four circumstances influenced the employer decision to discharge the employee, that employee cannot prevail on a section 451.001 claim. Terry v. Southern Floral Co., 927 S.W.2d 254, 257 (Tex.App.-Houston [1st Dist.] 1996, no writ). An employee need not show that he or she was fired solely because of the filing of the workers’ compensation claim, but must show that the filing of the claim was at least a determining factor in the discharge. Id.

An employer sued under section 451.001 may obtain summary judgment if the affidavits and other summary judgment evidence shows the workers’ claim was not a determining factor in her discharge. Trevino v. Corrections Corp. of Am., 850 S.W.2d 806, 808 (Tex.App.-El Paso 1993, writ denied). An employer must establish a legitimate, nondiscriminatory reason for the discharge. Terry, 927 S.W.2d at 257. To withstand summary judgment, the employee must produce controverting evidence of a retaliatory motive. See id. An employee’s subjective belief she was discharged because of her participation in workers’ compensation proceedings does not controvert competent summary judgment evidence of a neutral explanation for discharge. See Texas Division-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 314 (Tex.1994).

*3 To be competent summary judgment evidence, affidavits must (1) be made on personal knowledge, (2) set forth facts as would be admissible in evidence, and (3) show affirmatively that the affiant is competent to testify to the matters stated. Tex.R. Civ. P. 166a(f). An interested witness’s uncontroverted affidavit that is clear, positive, direct, otherwise credible, free from contradictions and inconsistencies, and readily controvertible will support a summary judgment. Tex.R. Civ. P. 166a(c).

3. Application of Law to Facts

a. Affidavits

Burandt contends Cable’s affidavits can not be readily controverted because they involve intent. She then cites Hunt v. Van Der Horst Corp., 711 S.W.2d 77, 79-80 (Tex.App.-Dallas 1986, no writ), for the proposition that summary judgment is not appropriate on the issue of intent. We disagree that this case involves an issue of intent.

In Hunt, the management employees’ affidavits showed that the plant’s general manager intended to terminate Hunt earlier, but changed his mind. The Hunt court observed that interested parties’ affidavits are rarely appropriate on the issue of intent. Id. More importantly, Hunt’s summary judgment evidence controverted the management employees’ statements. Here, Cable’s intent or when it formed that intent to terminate Burandt is not in issue. Rather, the issue is Cable’s reason for terminating Burandt. The management employees’ affidavits showed that Burandt was terminated because of a reduction in force, not because someone previously formed an intent to terminate her.

We conclude the summary judgment affidavits were not deficient. Cable’s evidence showed a legitimate reason to terminate Burandt. Once Cable proved a legitimate reason for Burandt’s discharge, the burden shifted to Burandt to raise controverting evidence.

b. Material Question of Fact

In its second motion for summary judgment, Cable alleged it terminated Burandt because of a reduction in its work force. At the hearing on its second motion for summary judgment, Cable re-urged its objections to Burandt’s summary judgment evidence. Specifically, Cable objected to paragraphs nine, ten, eleven, twelve, and thirteen of Burandt’s affidavit attached to Burandt’s response. It argued these paragraphs were conclusory, speculative, irrelevant, inadmissible hearsay, and not made on Burandt’s personal knowledge.

Burandt relies on her affidavits, with or without the trial court’s ruling, to raise a questions of material fact. We apply the Liedecker rationale to this case. See Dallas Market Center Dev. Co. v. Liedecker, 958 S.W.2d 382, 387 (Tex.1997) (per curiam).³

At the hearing on the second motion for summary judgment, the trial court heard argument on Cable’s objections. The trial court orally sustained Cable’s objections to paragraphs nine, eleven, and twelve (Burandt’s perception of a general feeling of hostility at Cable, Burandt’s reports of conversations of other employees, and reports of Cable’s increased premiums). The court overruled Cable’s objections to paragraphs ten and thirteen (Burandt’s list of names of other terminated employees who had filed claims and her report of another discharged employee’s similar termination letter). The trial court wrote these rulings on the docket sheet, and its order granting summary judgment included language that it had ruled on the Cable’s objections to the summary judgment evidence. Under the Liedecker rule, we conclude the trial court sustained Cable’s objections to paragraphs nine, eleven, and twelve. Burandt’s affidavit, with or without paragraphs nine, eleven, and twelve, do not raise a material question of fact about Cable’s reason for terminating her.

*4 Burandt relies on another employees termination letter to show she was not terminated as part of a reduction in force, but in retaliation for her workers’ compensation claim. Because she received the same type letter as an employee she said was terminated for cause, not for reduction in force, she must have been terminated for filing a workers’ compensation claim. Burandt, however, produced no summary judgment evidence showing why the other employee was terminated.

Additionally, Burandt relies on the list of nine other employees were also terminated within six months of filing workers’ compensation claims. She, however, includes no information on the total number of employees who filed workers’ compensation claims or the total number of employees who were terminated during any relevant period. Without more, the list does not support a connection between filing a workers’ compensation claim and being terminated. The list of employees who were terminated within six months of filing workers’ compensation claims shows only that-they filed claims and were terminated-not that Cable had terminated them because the filed claims.

Burandt’s affidavit also includes Cable’s management personnel discussions of alternative ways to file for insurance after her injury report. She cites no authority, and we have found none, for her argument that these discussions are competent summary judgment evidence of Cable’s hostility to her claim.

Burandt’s summary judgment evidence raised no facts that controverts Cable’s legitimate reason for terminating her. Her subjective belief that Cable terminated her because of her participation in workers’ compensation proceedings does not controvert competent summary judgment evidence of a neutral explanation for discharge. See Carrozza, 876 S.W.2d at 314. The trial court properly granted appellee’s motion for summary judgment. We overrule Burandt’s point of error and affirm the trial court’s summary judgment.

	Footnotes
1		Cable supplied this information to Burandt’s attorney in response to his request for production. Burandt alleges that ten workers were either terminated or laid off, but only nine forms are attached to the summary judgment response.
2		Burandt also contends the factfinder is not required to believe the employer’s stated reason for the discharge. We agree. See Continental Coffee Products Co. v. Cazarez, 903 S.W.2d 70, 79 (Tex.App.-Houston [14th Dist.] 1995), aff’d in part and rev’d on other grounds, 937 S.W.2d 444 (Tex.1996). However, in summary judgment proceedings, the trial court does not weigh the evidence or determine its credibility. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 931 (1952); Ellert v. Lutz, 930 S.W.2d 152, 155 (Tex.App.-Dallas 1996, no writ).
3		Previously, the trial court’s sustaining of an objection to summary judgment evidence had be reduced to writing, signed by the trial court, and entered of record. See Utilities Pipeline Co. v. American Petrofina Marketing, 760 S.W.2d 719, 723 (Tex.App.-Dallas 1988, no writ). Recently, the Texas Supreme Court held that trial court rulings no longer need to be in writing to preserve error. Liedecker, 958 S.W.2d at 387. The supreme court examined the appropriate rule and the trial court’s record and concluded from the record that this Court should have considered the trial court’s action as completed.