Court of Appeals of Texas, Dallas.

Tarimobowei C. OMORO, Appellant,

v.

HARCOURT BRACE & COMPANY, Appellee.

No. 05-96-01454-CV.

|

Jan. 13, 1999.

Before Justices JAMES, WRIGHT, and MOSELEY.

OPINION

JAMES, J.

*1 Tarimobowei C. Omoro appeals the summary judgment dismissing with prejudice his suit against Harcourt Brace and Company for retaliatory discharge for his filing a workers’ compensation claim. Appellant brings five points of error contending the trial court erred in granting Harcourt’s motion for summary judgment. We overrule appellant’s points of error and affirm the trial court’s judgment.

FACTUAL BACKGROUND

Harcourt is a publisher of school textbooks. Before March 1992, appellant worked in the Picking Department as a “picker” for Harcourt; that is, he pulled books and inventory from the warehouse shelves to fill the orders. In March 1992, Harcourt made appellant a “checker,” which required appellant to check the filled orders against the invoices. In July 1992, appellant hurt his back while checking orders and asked his supervisor to let him return to his job as picker, which was less physically strenuous. His supervisor sent him to the head of the department, Mike McAuliffe. McAuliffe told appellant that he, McAuliffe, was the boss and that if appellant did not want to be a checker then he should quit. Appellant told McAuliffe his problem was his back hurt. McAuliffe told appellant to see the company doctor, and if the doctor said there was nothing wrong with appellant, then McAuliffe would fire appellant. On July 13, 1992, the doctor put appellant on light-duty work that would not require lifting. Appellant worked light duty for a few days, after which Harcourt ran out of light-duty work. From July 16, 1992 until April 18, 1993, appellant did not work.

In January 1993, appellant’s status changed from “workers’ compensation leave” to “long-term disability leave.”

In February 1993, George Brown, a claims agent with Harcourt’s workers’ compensation carrier, told Nechelle Harris, Harcourt’s human resources director, “it was clear to him that Mr. Omoro was not in any hurry to return to work” and appellant’s medical records showed the amount of treatment and therapy appellant received was not necessary.

On April 19, 1993, appellant worked part of one day but was unable to do his job due to the pain in his back. When appellant told the supervisor, Tom Caddy, he had reinjured his back and could not work any more, Caddy told him he should quit because Harcourt was losing money on workers’ compensation claims. Appellant told Caddy he refused to quit because he needed his insurance benefits. Caddy told appellant, “Well, the company needs to go on.”

Appellant underwent an “MRI,” which showed he had a herniated or disrupted disk. Appellant underwent back surgery on September 13, 1993. Appellant’s doctor notified Harcourt that appellant would not be able to return to work until March 1994. Until October 1993, Harcourt kept appellant’s position open for him by using temporary employees.

On October 7, 1993, Caddy sent appellant a letter informing him that “[d]ue to the immediate need to fill your position on a full-time basis and the fact that you are not available, we regret that we can no longer hold your position open beyond October 11, 1993.” On October 13, 1993, Harcourt posted appellant’s position as “available.” Before it could fill the position, Harcourt’s management decided the work level was not sufficient to justify filling the position and imposed a “hiring freeze” for appellant’s position.¹ Harcourt withdrew the posting for appellant’s position.

*2 On March 23, 1994, appellant was able to return to work. The hiring freeze prevented appellant from returning to his old position. Pursuant to the company’s policy for employees returning from long-term disability leave, appellant was placed on unpaid leave of absence for two weeks while the personnel department tried to place appellant within that facility. The only job open and budgeted was one for maintenance mechanic, which appellant was not qualified to fill. Unable to place appellant within that facility, Harcourt terminated appellant on April 8, 1994, giving him two weeks’ severance pay “as per company policy.” The termination letter was signed by Caddy.

SUMMARY JUDGMENT

In his points of error, appellant contends the trial court erred in granting Harcourt’s motion for summary judgment. The function of a summary judgment is not to deprive a litigant of its right to a full hearing on the merits of any real issue of fact but is to eliminate patently unmeritorious claims and untenable defenses. Gulbenkian v. Penn, 151 Tex. 412, 416, 252 S.W.2d 929, 931 (1952). The standards for reviewing a motion for summary judgment are:

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.

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); Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984); Wilcox v. St. Mary’s Univ., 531 S.W.2d 589, 592-93 (Tex.1975). The purpose of the summary judgment rule is not to provide either a trial by deposition or a trial by affidavit but to provide a method of summarily terminating a case when it clearly appears that only a question of law is involved and that no genuine issue of material fact remains. Gaines v. Hamman, 163 Tex. 618, 626, 358 S.W.2d 557, 563 (1962). A motion for summary judgment must “stand or fall on the grounds expressly presented in the motion.” McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex.1993).

When the defendant is the movant, summary judgment is proper only if the plaintiff cannot, as a matter of law, succeed upon any theory pleaded. Peirce v. Sheldon Petroleum Co., 589 S.W.2d 849, 852 (Tex.Civ.App.-Amarillo 1979, no writ). Thus, the defendant can prevail by conclusively establishing against the plaintiff at least one factual element of each theory pleaded by the plaintiff, Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970), or by conclusively establishing every factual element of an affirmative defense. Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972). Conversely, the plaintiff can bar summary judgment by presenting evidence that creates a fact question on those elements of the plaintiff’s case under attack by the defendant or on at least one element of each affirmative defense advanced by the defendant. Torres v. Western Cas. & Sur. Co., 457 S.W.2d 50, 52 (Tex.1970); see also Puga v. Donna Fruit Co., 634 S.W.2d 677, 680-81 (Tex.1982). Alternatively, the plaintiff can defeat the motion by conceding that the material facts are undisputed, but convincing the court that the defendant’s legal position is unsound. Estate of Devitt, 758 S.W.2d 601, 602 (Tex.App.-Amarillo 1988, writ denied).

*3 In his first point of error, appellant contends the trial court erred in granting Harcourt’s motion for summary judgment because fact questions exist regarding whether appellant’s workers’ compensation claim was a determining factor in his termination by Harcourt. Section 451.001 of the Texas Labor Code states an employer may not discharge or discriminate against an employee who files a workers’ compensation claim in good faith. See Tex. Lab.Code Ann. § 451.001 (Vernon 1996). In order to recover damages for retaliatory discharge, the employee must prove, but for his filing a workers’ compensation claim, the discharge would not have occurred when it did. See Continental Coffee Prods. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996) (citing Texas Dep’t of Human Servs. v. Hinds, 904 S.W.2d 629, 633-37 (Tex.1995)).

An employer is entitled to summary judgment by proving as a matter of law a legitimate, nondiscriminatory reason for the employee’s discharge. See McIntyre v. Lockheed Corp., 970 S.W.2d 695, 697 (Tex.App.-Fort Worth 1998, no pet.); Palmer v. Miller Brewing Co., 852 S.W.2d 57, 61 (Tex.App.-Fort Worth 1993, writ denied). Thereafter, to survive a motion for summary judgment, the employee must rebut the employer’s summary judgment evidence by producing controverting evidence of a retaliatory motive. See Texas Division-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 313-14 (Tex.1994) (per curiam); McIntyre, 970 S.W.2d at 697. Subjective beliefs are no more than mere conclusions and are not competent summary judgment evidence. See Carrozza, 876 S.W.2d at 314; Castor v. Laredo Community College, 963 S.W.2d 783, 785 (Tex.App.-San Antonio 1998, no pet.).

In its motion for summary judgment, Harcourt proved as a matter of law there was a legitimate, nondiscriminatory reason for appellant’s termination. Harcourt’s legitimate reason was it followed its established policy regarding employees on long-term disability leave. After having been on workers’ compensation and long-term disability leave for twenty months, Harcourt placed appellant on unpaid leave of absence for two weeks while searching for a position for appellant in the facility. Appellant could not return to his previous position in the company because company management had imposed a hiring freeze prohibiting the filling of the position. Of the five unfilled positions, four were subject to the hiring freeze. Appellant was not qualified to fill the remaining position of maintenance mechanic. Pursuant to its policy, Harcourt discharged appellant at the end of his two-week leave of absence when it determined that no position within the facility was available for which appellant was qualified.

Harcourt had followed the same procedure with seven other employees who had been on workers’ compensation and long-term disability leave. Harcourt had been able to find jobs within its facility for six of those employees; the other employee was terminated when no opening was available during the two-week leave of absence period.

*4 Appellant argues the comments of McAuliffe, Brown, and Caddy were evidence of Harcourt’s intent to terminate appellant for filing a workers’ compensation claim. Comments by a supervisor regarding an employee’s filing a workers’ compensation claim are not evidence of the employer’s intent in terminating the employee if the supervisor was not involved in the decision to terminate the employee. See McIntyre, 970 S.W.2d at 698.

McAuliffe’s and Brown’s comments are not evidence of Harcourt’s intent to terminate appellant for filing a workers’ compensation claim because McAuliffe was not employed by Harcourt when appellant was terminated and Brown was never employed by Harcourt. Because neither McAuliffe nor Brown was involved in the decision to terminate appellant, their comments are not evidence of Harcourt’s intent to discharge appellant for filing a workers’ compensation claim. Caddy’s comments do not raise a fact issue of Harcourt’s intent to terminate appellant because, under Harcourt’s policy and due to the hiring freeze, Caddy’s and Harcourt’s actions were consistent with the policy in terminating appellant. Caddy’s comments do not tend to rebut Harcourt’s proof that appellant was discharged pursuant to its long-term disability policy. Nor do they tend to show, but for appellant’s filing the worker’s compensation claim, he would not have been discharged in April 1994.

Appellant argues Harcourt’s “misrepresentations” of his job and his termination raise fact questions regarding the cause of his termination. Appellant argues the effect of the hiring freeze was to prohibit the hiring of new employees. Appellant asserts he should have been allowed to return to his former position because, as he was an employee of the company, he was not subject to the hiring freeze. Appellant misinterprets the evidence concerning the hiring freeze. The hiring freeze prevented the filling of the position by full-time employees, whether new hires or otherwise.² The October 7, 1993 letter signed by Caddy had the effect of removing appellant from his position but leaving him an employee of Harcourt. Harcourt tried to fill the position but was prevented from doing so by the hiring freeze. When appellant returned in March 1994, he could not return to his position because of the hiring freeze. Because appellant was not qualified to fill the only position not subject to the hiring freeze, maintenance mechanic, Harcourt terminated appellant pursuant to its policy.

Appellant argues a fact issue exists regarding whether Harcourt followed its procedure because it did not fill his position and would not let him return to the position. This argument overlooks the fact the position was not filled because Harcourt’s company management, through its hiring freeze, forbade the filling of the position by anyone. Appellant’s argument lacks merit.

Appellant argues Harcourt violated its procedure by not permitting him to interview for the maintenance mechanic post. Harris testified she reviewed appellant’s original job application form, and it did not show he was qualified for the position. Appellant asserts that he, as a college graduate, ought to have been permitted to interview for the position. Appellant presented no evidence he was qualified for the position.³ Appellant does not explain, and we do not perceive, how his status as a college graduate raised a fact question concerning his qualification to fill the post. Appellant’s argument lacks merit.

*5 Appellant argues a fact issue exists on the cause of his termination because Harris did not search for a job in Harcourt’s facilities other than the one in which appellant worked. Harris testified that, at the time, Harcourt did not post job openings at other Harcourt facilities. Appellant did not controvert that evidence, nor does he explain how Harcourt’s failure to look for a job for him in one of its other facilities shows he was discharged for filing a workers’ compensation claim. Appellant’s argument lacks merit.

Appellant also argues he presented evidence tending to establish a causal connection between his termination and his filing a workers’ compensation claim.⁴ Appellant asserts he presented evidence of all the evidentiary issues listed in Paragon Hotel Corp. v. Ramirez:

(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 with regard to the policy leading to the employee’s discharge; and

(4) discriminatory treatment of the employee in comparison to similarly situated employees.

See Paragon Hotels v. Ramirez, 783 S.W.2d 654, 658 (Tex.App.-El Paso 1989, writ denied); see also Cazarez, 937 S.W.2d at 451. Appellant is correct that Caddy, who signed appellant’s termination letter, had knowledge of appellant’s compensation claim and had expressed a negative attitude toward appellant’s injured condition.⁵ However, in light of Harcourt’s establishing that appellant was discharged pursuant to its long-term disability policy, these fact issues are not material because they do not tend to show, but for appellant’s filing his worker’s compensation claim, he would not have been discharged.

We conclude appellant has not shown a fact issue exists regarding whether appellant would have been discharged but for his filing his workers’ compensation claim. We overrule appellant’s first point of error.

In his second point of error, appellant contends the trial court erred in granting appellant’s motion for summary judgment because Harcourt did not carry its burden of proving appellant’s termination was not caused or motivated by appellant’s filing his workers’ compensation claim. Appellant asserts Harcourt’s motion is based on the insufficiency of appellant’s evidence. We disagree. Harcourt’s motion was based on its proving as a matter of law that appellant’s termination was not caused by appellant’s filing his worker’s compensation claim but was the result of the application of neutral policies concerning employees on long-term disability leave. We overrule appellant’s second point of error.

In his third point of error, appellant contends the trial court erred in considering Harris’s affidavit on the issue of Harcourt’s intent in discharging appellant. Appellant relies on Hunt v. Van Der Horst Corp., 711 S.W.2d 77 (Tex.App.-Dallas 1986, no writ). In Hunt, we stated, “Summary judgment based on affidavits of employees and other interested witnesses is inappropriate on the issue of intent. Indeed, summary judgment is rarely appropriate at all on the issue of intent.” Hunt, 711 S.W.2d at 79 (citation omitted). The Texas Supreme Court, however, implicitly overruled Hunt in Texas Division-Tranter, Inc. v. Carrozza, 876 S.W.2d 312 (Tex.1994) (per curiam). In Carrozza, the supreme court held affidavits of interested witnesses could be used to present evidence of a nonretaliatory reason for termination as long as the affidavits are clear, positive and direct, otherwise credible and free from contradictions and inconsistencies as required by rule of civil procedure 166a(c). See Carrozza, 876 S.W.2d at 313; see also Tex.R. Civ. P. 166a(c); accord Trico Techs. Corp. v. Montiel, 949 S.W.2d 308, 310 (Tex.1997) (per curiam). Appellant did not object at trial and does not argue on appeal that Harris’s affidavit is not clear, positive and direct, otherwise credible and free from contradictions and inconsistencies. We hold the trial court did not err in considering the affidavit. We overrule appellant’s third point of error.

*6 In his fourth point of error, appellant contends the trial court erred in granting summary judgment based upon the length of appellant’s absence during his leave for a work-related injury. The trial court did not state its reasons for granting Harcourt’s motion for summary judgment. Because Harcourt’s other grounds prove its entitlement to summary judgment, the trial court did not need to rely on this ground to grant Harcourt’s motion for summary judgment. Accordingly, we need not address this point of error. See Brooks v. Blue Ridge Ins. Co., 677 S.W.2d 646, 650 (Tex.App.-Amarillo 1984, writ ref’d n.r.e.). We overrule appellant’s fourth point of error.

In his fifth point of error, appellant contends the trial court “erred in placing reliance on [Harcourt’s] absence policy in granting summary judgment.” Appellant argues, “The trial court, in granting [Harcourt]’s motion, stated that [appellant] had the burden of proving that other employees were not discharged in a manner consistent with [appellant] when they returned from work related absences. This is an improper allocation of the burden of proof in a Section 451.001 case.” The trial court did not so “state” by its ruling. Harcourt had the burden of proving that its enforcement of the long-term disability policy against appellant was consistent with its enforcement of the policy against other, similarly situated employees. Only after Harcourt established this fact through Harris’s affidavit did appellant have to produce evidence rebutting Harcourt’s evidence to avoid summary judgment. Appellant’s argument lacks merit.

Appellant also argues, “the written policy of [Harcourt] makes no mention of a set period after which the employee will be terminated.” Harcourt’s written policy provided as follows:

The Company will, if possible, reinstate an employee returning from disability leave in his or her former position-or a comparable job, if one is available. The employee may be given a personal leave (without pay), not to exceed two weeks, in order to interview for a position in the Company. This personal leave can be granted only if one or more comparable positions are available and the employee is qualified. The employee must be available for interviewing during the working hours throughout the personal leave period. If neither the former position nor a comparable one is available, … the employee will of necessity be released and be paid severance in accordance with the Company’s stated severance policy. He or she then becomes eligible for unemployment benefits.

(Emphasis added.) This policy clearly provides that the employee is terminated when it is determined there are no positions available for which he is qualified or at the end of any personal leave, which could be up to two weeks. Appellant’s argument lacks merit.

Appellant argues Harcourt failed to follow its long-term disability policy because appellant was not replaced by another employee. As discussed above, appellant was removed from his position on October 7, 1994 because of the necessity to fill the position before budgetary concerns necessitated eliminating the position. Harcourt posted the position, but before it could be filled, Harcourt’s management instituted a hiring freeze, forbidding the position from being filled by anyone, including appellant. This evidence does not raise a fact issue on whether Harcourt followed its policy. We overrule appellant’s fifth point of error.

*7 We hold the trial court did not err in granting Harcourt’s motion for summary judgment. We affirm the trial court’s judgment.

MOSELEY, J., dissenting opinion.

DISSENTING OPINION

*7 An employer is entitled to summary judgment in a Chapter 451 retaliatory discharge claim when a legitimate, nondiscriminatory reason for the discharge is established and the employee fails to produce evidence of a retaliatory motive.¹ I agree with the majority that the employer in this case, appellee Harcourt Brace and Company, established such a legitimate, non-retaliatory motive. However, the majority also concludes, incorrectly in my view, that the employee, appellant Tarimobowei C. Omoro, failed to produce controverting evidence of a retaliatory motive. Therefore, I respectfully dissent.

INTRODUCTION

Omoro sued Harcourt, his former employer, under Section 451.001 of the Texas Labor Code, which prohibits an employer from retaliating against an employee who files a workers’ compensation claim in good faith.² Omoro claimed that Harcourt fired him in retaliation for filing a workers’ compensation claim. Harcourt moved for summary judgment.

SUMMARY JUDGMENT STANDARD

The majority properly recites the standard of review applicable to summary judgments.³ Applying those general principles to retaliatory discharge claims under Section 451.001, an employer is entitled to summary judgment if it proves as a matter of law a legitimate, nondiscriminatory reason for the employee’s discharge.⁴ If an employer presents summary judgment evidence that it discharged the employee for a legitimate, nondiscriminatory reason, the employee must, to survive the motion for summary judgment, rebut the employer’s summary judgment evidence by producing controverting evidence of a retaliatory motive.⁵ Such evidence would create a fact issue as to the employer’s true motive in discharging the employee-an issue to be decided by the finder of fact.

SUMMARY JUDGMENT RECORD

A. Harcourt’s Evidence

In support of its motion for summary judgment, Harcourt presented evidence that Omoro’s discharge resulted from Harcourt’s application of its established policy regarding employees on long-term disability leave. After having been on workers’ compensation and long-term disability leave for twenty months, Harcourt placed Omoro on unpaid leave of absence for two weeks while searching for a position for Omoro in the facility. Omoro could not return to his previous position in the company because company management had imposed a hiring freeze prohibiting the filling of the position. Of the five unfilled positions, four were subject to the hiring freeze. Omoro was not qualified to fill the remaining position of maintenance mechanic. Pursuant to its policy, Harcourt discharged Omoro at the end of his two-week leave of absence when it determined that no position within the facility was available for which he was qualified.

Harcourt had followed the same procedure with seven other employees who had been on workers’ compensation and long-term disability leave. Harcourt had been able to find jobs within its facility for six of those employees; the other employee was terminated when no opening was available during the two-week leave of absence period.

*8 Thus, Harcourt presented evidence that it discharged Omoro for a legitimate, nondiscriminatory reason. To survive summary judgment, Omoro must rebut Harcourt’s summary judgment evidence by producing controverting evidence of a retaliatory motive. We therefore review Omoro’s evidence to determine if it creates a fact question on the issue of Harcourt’s true motive for terminating him.

B. Omoro’s Evidence

Omoro points to several portions of the record as constituting evidence of a retaliatory motive on the part of Harcourt. Specifically, Omoro contends the statements of Mike McAuliffe, George Brown, Nechelle Harris, and Tom Caddy, as well as claimed misrepresentations regarding Harcourt’s hiring freeze and actions in declining to interview and place him in the open position of maintenance mechanic, raise a fact issue as to whether Harcourt terminated him in retaliation for filing a workers’ compensation claim. As indicated by the analysis below, I agree with the majority with respect to the statements of McAuliffe and Brown and the evidence regarding the hiring freeze and the refusal to employ Omoro as a maintenance mechanic. However, I believe the statements of Harris and Caddy create a fact question regarding Harcourt’s motive in terminating Omoro.

1. Mike McAuliffe

When Omoro hurt his back in July 1992, he asked his supervisor for a less strenuous job, and was told to report to the head of the department, Mike McAuliffe. McAuliffe told Omoro that he, McAuliffe, was the boss and that if Omoro did not want to do the work he was assigned then he should quit. Omoro told McAuliffe his problem was his back hurt. McAuliffe told Omoro to see the company doctor, and said if the doctor found there was nothing wrong with his back, then McAuliffe would fire him.

I agree with the majority that McAuliffe’s statements are not evidence of a retaliatory motive by Harcourt. Omoro alleges Harcourt violated Section 451.001 only by terminating him. Although McAuliffe was Harcourt’s employee when he made his statements to Omoro, he did not work for Harcourt at the time Omoro was terminated. Neither is there any evidence that McAuliffe influenced Harcourt’s decision to terminate Omoro.

2. George Brown

In February 1993, George Brown, a claims agent with Harcourt’s workers’ compensation carrier, told Nechelle Harris, Harcourt’s human resources director, that “it was clear to him that … Omoro was not in any hurry to return to work” and that Omoro’s medical records showed that the amount of treatment and therapy he received was not necessary.

Brown was never employed by Harcourt, and there is no evidence his statement influenced Harcourt’s decision to terminate Omoro. Thus, I agree with the majority that Brown’s statements are not evidence of a retaliatory motive by Harcourt.

3. Nechelle Harris

Within days of Brown’s statement to Harris, Harris passed along Brown’s statement to Tom Caddy, Omoro’s then-current supervisor at Harcourt, and added her own emphasis by underlining the word “not” in the above-quoted portion Brown’s statement. Harris’s affidavit states that she was the Harcourt employee who decided to terminate Omoro.

*9 In my opinion, Harris’s statement to Caddy constitutes some evidence that Harcourt’s termination of Omoro may have been motivated by his filing and pursuit of his workers’ compensation claim. The majority opinion ignores this statement altogether.

4. Tom Caddy

Shortly after Harris’s statement to Caddy, Caddy made his own comments to Omoro. In April 1993, Omoro returned to work part of one day but was unable to do his job due to his back pain. He told Caddy, his supervisor, that he had reinjured his back and could not work. Caddy then told Omoro he should quit because Harcourt was losing money on workers’ compensation claims. Omoro declined to do so, stating that he needed his insurance benefits. Caddy then told Omoro, “Well, the company needs to go on.”

Although Harcourt’s summary judgment evidence states that Harris was the Harcourt employee who decided to terminate Omoro, Caddy was the Harcourt employee who signed Omoro’s termination notice.

In my opinion, Caddy’s statement to Omoro also constitutes some evidence that Harcourt’s termination of Omoro may have been motivated by his filing and pursuit of his workers’ compensation claim.

The majority acknowledges Caddy’s statement, but concludes it does not raise a fact issue of Harcourt’s intent to terminate Omoro “because, under Harcourt’s policy and due to the hiring freeze, Caddy and Harcourt had no choice but to terminate [Omoro].” Reaching this conclusion requires the majority, in my view, to weigh Harcourt’s evidence regarding its alleged reason for terminating Omoro against the evidence of Caddy’s statement. This is contrary to the standard of review applicable to summary judgments in general.⁶

5. Evidence of misrepresentations

Additionally, Omoro contends that the evidence regarding Harcourt’s purported hiring freeze and their actions in declining to interview and place him in the open position of maintenance mechanic constitute some evidence of retaliatory motive. I agree with the majority’s analysis and conclusion that this evidence does not raise a fact issue as to retaliatory motive.

CONCLUSION

In my opinion, Harris’s statement to Caddy and Caddy’s statement to Omoro both constitute some evidence that Harcourt’s termination of Omoro was motivated by his filing and pursuit of his workers’ compensation claim and are sufficient to create a fact issue as to Harcourt’s true motive in discharging him-an issue that should be decided by the finder of fact. Because Omoro thus produced controverting evidence of a retaliatory motive that rebutted Harcourt’s summary judgment evidence, I would sustain Omoro’s first point of error, reverse the judgment of the trial court and remand the case for a factual determination of Omoro’s claim.

	Footnotes
1		Four other positions were also subject to the hiring freeze.
2		Appellant cites to pages 22-28 and 61-67 of Harris’s deposition in support of his argument that, as a current full-time employee, the hiring freeze did not apply to him. Harris testified, “[T]he need to fill his [appellant’s] position was put on hold because of the hiring freeze. We were told that we could not fill any positions.” This testimony does not restrict the prohibition on filling the positions to new employees. Harris also testified: Q. So the managerial decision was not to hire full-time employees to those jobs, but just to continue using temporaries; is that correct? A. Yes. We were able to use temporaries. This testimony appears to be the evidence appellant relies on in his argument that the hiring freeze meant only new employees could not be hired. The question was multifarious consisting of two parts: (1) “the managerial decision was not to hire full-time employees to those jobs”; and (2) the managerial decision was “just to continue using temporaries.” Harris’s answer indicates she answered only the second part of the question and did not answer the first part. Even if Harris’s answer of “Yes” applied to the first part of the question, the answer does not indicate a current full-time employee could have filled one of the positions subject to the hiring freeze. We conclude the cited portions of Harris’s affidavit and deposition do not raise a fact question of whether the hiring freeze prevented appellant from filling his old position.
3		Included in Harcourt’s summary judgment proof was the job description for the maintenance mechanic position. A college degree was not a requirement for the position.
4		Appellant presented this argument under his fifth point of error; however, it is more appropriate to his first point of error.
5		Appellant also argues that Harcourt “failed to follow established company policy with regard to the discharging of [appellant].” However, appellant does not explain in this argument how Harcourt failed to follow its policy. Harcourt presented uncontroverted evidence that it followed its policy regarding employees on long-term disability leave.
1		Texas Division-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 314 (Tex.1994) (per curiam).
2		See Tex. Lab.Code Ann. § 451.001 (Vernon 1996).
3		See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985).
4		See McIntyre v. Lockheed Corp., 970 S.W.2d 695, 697 (Tex.App.-Fort Worth 1998, no pet.); Palmer v. Miller Brewing Co., 852 S.W.2d 57, 61 (Tex.App.-Fort Worth 1993, writ denied).
5		See Carrozza, 876 S.W.2d at 313-14; McIntyre, 970 S.W.2d at 697.
6		See Nixon, 690 S.W.2d at 548-49.