Court of Appeals of Texas, Dallas.
Gloria BOYD, Appellant,
HOME HEALTH FIRST and Visiting Nurse Association, Appellees.
Feb. 2, 2001.
On Appeal from the 134th Judicial District Court, Dallas County, Texas, Trial Court Cause No. DV98-09350-G.
Before JAMES, JJ.
*1 Gloria Boyd appeals the trial court’s summary judgment in favor of Home Health First (HHF) and Visiting Nurse Association (VNA). In a single issue, Boyd claims the trial judge erred in granting summary judgment because fact issues exist. We reverse in part and affirm in part the trial court’s judgment.
Boyd injured her lower back on July 29, 1996 while attempting to lift a patient into a wheelchair at the patient’s home. She reported her injury and was given a “light-duty” assignment. Several months later, in a letter dated December 9, 1996, Boyd was informed that her employer would “no longer be able to provide modified duty as a means of employment.” The letter stated she could consult “Human Resources or [her] supervisor about additional job opportunities within Home Health First or any of [its] member organizations.” Boyd did not inquire about other positions within HHF and was subsequently terminated.
On December 9, 1998, Boyd sued HHF and VNA. In her petition, she alleged she was employed by both HHF and VNA and that she was terminated for filing a workers’ compensation claim. HHF and VNA filed an answer, generally denying Boyd’s claims. In addition, VNA denied being liable in the capacity in which it was sued. HHF and VNA then filed a motion for summary judgment, alleging each was entitled to judgment as a matter of law because (i) VNA was not Boyd’s employer and (ii) HHF did not terminate Boyd for filing a workers’ compensation claim. The trial judge agreed and granted summary judgment in favor of VNA and HHF. This appeal followed.
SUMMARY JUDGMENT STANDARD
The standards for reviewing summary judgment under rule 166a(c) are well established. See Muckelroy v. Richardson Indep. Sch. Dist., 884 S.W.2d 825, 828 (Tex.App.-Dallas 1994, writ denied).
Boyd first contends the trial judge erred in granting summary judgment because fact issues exist regarding whether Boyd was employed by VNA. Although HHF and VNA both claim Boyd was employed only by HHF on the date of her injury and thereafter, Boyd claims her summary judgment evidence creates a fact issue, thereby precluding summary judgment. We agree with Boyd.
*2 HHF and VNA filed a joint motion for summary judgment in which they alleged that, on the date of her injury, Boyd worked for HHF, not VNA. To support this claim, they attached the affidavit of Don Richardson, a VNA vice-president. Richardson testified that although Boyd had worked for VNA before July 1, 1996, after that date, (i) Boyd was not employed by and did not work for VNA, (ii) VNA did not have the right to control or have control over the employment of Boyd, and (iii) HHF had the right to control Boyd and her employment. They also attached the affidavit of Linda Mason, formerly Linda Bilbo (Bilbo), who testified Boyd worked for HHF at the time of her injury.
Although Richardson’s affidavit states Boyd was not employed by VNA, Boyd filed a response to the summary judgment motion, attaching a copy of the December 9, 1996 letter. The letter informed Boyd she would no longer be provided “modified duty as a means of employment ... after January 31, 1997.” The letterhead reads, “VNA Visiting Nurse Association.” The letter is signed by Jan Newitts and is copied to “Linda Bilbo, Director Risk Management” and “Don Richardson, Vice President, Human Resources.” Because the letter raises fact issues on whether Boyd was employed by VNA, we conclude the trial judge erred in granting summary judgment for VNA. We sustain Boyd’s issue to the extent it challenges the summary judgment granted in favor of VNA.
WORKERS’ COMPENSATION CLAIM
Next, Boyd argues the trial judge erred in granting summary judgment in favor of HHF because HHF terminated her for filing a workers’ compensation claim. We disagree.
Section 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;
(2) hired a lawyer to represent the employee in a claim;
(3) instituted or caused to be instituted in good faith a proceeding under Subtitle A; or
(4) testified or is about to testify in a proceeding under Subtitle A.
Jenkins v. Guardian Indus. Corp., 16 S.W.3d 431, 441 (Tex.App.-Waco 2000, no pet.).
*3 Although Boyd contends her summary judgment evidence establishes HHF’s reasons for terminating her were false and that HHF did not have a restricted duty policy, we cannot agree. In the motion for summary judgment, HHF articulated a nondiscriminatory reason for terminating Boyd and offered evidence regarding the company’s “restricted duty policy.” Bilbo discussed the policy in her affidavit:
[HHF] has a policy that, if a person is unable to fill a position because of her injury, illness[,] or disability, that position is kept open for six (6) months pending the injured or disabled person’s ability to return to the position. The position held by Gloria Boyd with [HHF] at the time of the alleged workers’ compensation accident on July 29, 1996, remained open pending her return for six (6) months. When Ms. Boyd indicated to [HHF] that she was physically unable to return to such position ... the letter [was] sent to Ms. Boyd explaining the position of [HHF] ... From the time of Ms. Boyd’s alleged July 29, 1996, on-the-job accident, Ms. Boyd was provided light-duty work by [HHF] at the same rate of pay and for the same number of hours as the job she held prior to and on July 29, 1996. Neither Ms. Boyd’s pay nor her hours were cut or modified in any way between July 29, 1996, and December 6, 1996.
Bilbo testified HHF did not take an adverse employment action against Boyd, and that Boyd did not follow up with HHF to obtain other employment within HHF after December 9, 1996. Bilbo also testified, “At no time has any workers’ compensation claim ever made or filed by or on behalf of Gloria Boyd ever been considered by [HHF] as to any employment action taken by HHF as to Ms. Boyd.”
In response, Boyd argued HHF exhibited a negative attitude toward her and that its nondiscriminatory reason for terminating her was pretense. Boyd attached a copy of the Texas Workers’ Compensation Commission injury report that Bilbo completed as evidence that HHF illegally terminated her. Although the report shows knowledge of Boyd’s compensation claim by “those making the decision on termination,” that fact alone is not sufficient to raise a fact issue concerning termination for filing a workers’ compensation claim. See Vallance, 14 S.W.3d at 838 (appellant’s subjective beliefs are no more than conclusions and are therefore not competent summary judgment evidence). Moreover, that she was unaware of HHF’s policy does not raise a fact issue on whether she was fired for filing a workers’ compensation claim.
In this case, HHF’s summary judgment evidence sets out a nondiscriminatory reason for terminating Boyd. The burden then shifted to Boyd to come forward with evidence raising a fact issue. Boyd’s summary judgment evidence does not establish or raise a fact issue that but for the filing of her workers’ compensation claim, Boyd’s termination would not have occurred when it did. Rather, the evidence shows that HHF terminated Boyd because, due to the nature of her injury, she was no longer able to perform the essential functions of her position with HHF. Because Boyd failed to show the existence of evidence creating a fact issue on whether she was terminated for filing a workers’ compensation claim, the trial judge did not err in granting HHF summary judgment. We overrule Boyd’s issue to the extent she challenges the summary judgment in favor of HHF.
*4 We reverse that portion of the trial court’s judgment granting VNA summary judgment and remand for further proceedings. We affirm that portion of the trial court’s judgment granting HHF summary judgment.