Court of Appeals of Texas, Dallas.
Janice HOLMES, Appellant,
v.
HEAD START OF GREATER DALLAS, INC., Appellee.
No. 05-99-01934-CV.
|
Dec. 18, 2000.
Before Justices LAGARDE, FITZGERALD AND RICHTER.
OPINION
RICHTER.
*1 Appellant, Janice Homes, filed suit against appellee, Head Start of Greater Dallas, Inc. (“Head Start”), asserting wrongful termination. Specifically, Holmes alleged she was terminated in violation of section 451.001 of the labor code because she filed a worker’s compensation claim. Holmes contends in a single issue that the trial court erred in granting Head Start’s no-evidence summary judgment because a genuine issue of material fact exists. Holmes failed to present evidence that establishes a genuine issue of material fact exists on each essential element of her claim; therefore, we affirm the trial court’s summary judgment in favor of Head Start.
Factual and Procedural Background
Holmes was employed by Head Start of Greater Dallas as a cooking assistant. While working for Head Start, Holmes slipped and fell injuring her neck, back, arm and knee. Holmes sought medical treatment and filed a worker’s compensation claim. Holmes received uncontested worker’s compensation benefits while unable to work due to her injury. On August 29, 1995, Holmes met with the physician caring for her, who released her to return to work immediately. Holmes conveyed this information to Head Start’s personnel director by telephone the same day. Immediately thereafter, Holmes went on vacation. Sometime later, Head Start received a written copy of the medical release. Upon receipt, Head Start telephoned Holmes and left a message on her answering machine informing her to report to work immediately. Holmes did not report to work for more than three days following her release and Head Start began termination procedures against her.
Head Start has a three-day absence control policy in place. The absence control policy states that if an employee does not report to work within three days of the expiration of leave, or release to work by the attending health care provider, that employee will be considered to have abandoned their position. It is undisputed Holmes’ health care provider released her to return to work on August 29, 1995, nor is it in dispute that Holmes failed to return to work within three days of that date. On September 7, 1995, Head Start’s personnel director wrote Holmes a letter informing her that her employment file would reflect her abandonment of her position.
Holmes filed suit alleging wrongful termination in retaliation for her filing of a worker’s compensation claim. Head Start answered and affirmatively pleaded that termination was in accordance with a written absence control policy. Fourteen months after filing its answer, Head Start filed a no-evidence motion for summary judgment pursuant to Texas rule of civil procedure 166a(i). Head Start alleged Holmes provided no evidence to establish a prima facie showing of worker’s compensation retaliation. Specifically, Head Start complained Holmes failed to present any evidence to establish a causal connection between the filing of her worker’s compensation claim and her termination. Holmes answered by attaching exhibits to her response but failed to allege any facts to support her contentions that she was fired because she filed a worker’s compensation claim. The trial court granted Head Start’s no-evidence motion for summary judgment. Holmes appeals claiming a genuine issue of material fact exists.
Standard of Review
*2 A no-evidence motion for summary judgment is essentially the same as a pre-trial motion for instructed verdict; therefore, we apply the same standard of review. Vallance v. Irving C.A.R.E.S., Inc., 14 S.W.3d 833, 836 (Tex.App.-Dallas 2000, no pet.). The granting of a no-evidence summary judgment is improper if the party against whom the summary judgment was granted produced more than a scintilla of evidence raising a genuine issue of material fact as to each element of a claim. Id. at 837 (citing Roth v. FFP Operating Partners, L.P., 994 S.W.2d 190, 195 (Tex.App.-Amarillo 1999, pet. denied)). More than a scintilla of evidence exists if the evidence is such that reasonable and fair-minded people could differ in their conclusions. Merrell Dow Pharms. v. Havner, 953 S.W.2d 706, 711 (Tex.1997), cert. denied 523 U.S. 1119 (1998).
After adequate time for discovery, a party may move for summary judgment without presenting evidence on the ground that there is no evidence of one or more of the essential elements of a claim on which the adverse party has the burden of proof. Tex.R.Civ.P. 166a(i). Unless the respondent produces summary judgment evidence raising a genuine issue of material fact, the court must grant the summary judgment motion. Id.
Wrongful Termination
An employer is prohibited from discharging an employee for filing a worker’s compensation claim in good faith. Tex.Lab.Code Ann. § 451.001 (Vernon Supp.2000). To prevail under section 451.001 of the labor code, Holmes does not have to establish her termination was solely because she filed a worker’s compensation claim, but rather, that her termination would not have occurred when it did absent such a filing. Continental Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996). Circumstantial evidence and reasonable inferences from that evidence can establish the connection between termination and the filing of the worker’s compensation claim. Id . at 451. Circumstantial evidence sufficient to establish the required causal link includes: (1) knowledge of the compensation claim by the person terminating employee; (2) expression of a negative attitude toward the employee’s condition; (3) failure of the employer to adhere to established company policies; (4) discriminatory treatment of the employee compared to other similarly situated employees; (5) evidence the reason provided for the discharge was false. Id. at 451.
Holmes established that Head Start’s personnel director and site supervisor knew she filed a worker’s compensation claim. Both parties presented deposition testimony establishing that Holmes informed both the site supervisor and personnel director of her worker’s compensation filing. Both the site supervisor and personnel director also knew of appellant’s injury. After appellant failed to report to work, it was the site supervisor who recommended abandonment proceedings be initiated. The personnel director followed through on those proceedings and ultimately wrote appellant’s letter of termination.
*3 Knowledge of appellant’s workers compensation filing alone, however, is not enough to raise a fact issue as to whether appellant was wrongfully terminated due to the filing of a worker’s compensation claim. Vallance, 14 S.W.3d at 837. This factor must be considered in conjunction with the remaining evidence presented by appellant. Id. In this regard, Holmes asserts Head Start displayed a negative attitude toward her condition. Specifically, Holmes contends the statement that “I could not see how it could have been that involved of an accident” made by the Head Start site supervisor demonstrates a negative attitude toward her condition. However, Holmes states that on several occasions the site supervisor told her, “I really want you to get to feeling better. Just make sure you get yourself feeling better.” Holmes does not present any other evidence Head Start displayed a negative attitude toward her. On the contrary, Holmes stated in deposition testimony that Head Start employees continually encouraged her to get well and to come back to work when she was able. Further, in her deposition testimony Holmes stated that on several occasions, Head Start informed her of its need for her to return to work. Moreover, Holmes presented no evidence Head Start contested the payment of her worker’s compensation benefits in any way. We conclude the site supervisor’s isolated statement questioning the severity of Holmes’ accident is no evidence Head Start displayed a negative attitude toward her.
Holmes further asserts Head Start failed to follow its established company policies because violation of the three day absence policy does not require her termination and Head Start did not provide her with notice of appeal procedures in her letter of termination. Head Start’s abandonment-of-position provision in its company policy demonstrates an intent to treat abandonment as a voluntary action on the part of the employee. If an employee abandons her position by failing to return to work, the employee, not the employer, is deemed to have terminated her employment. Therefore, no express termination provision is required. No evidence Head Start failed to follow its established polices is presented by Holmes’ voluntary abandonment. Holmes correctly states her letter of termination failed to inform her of the appeals procedures provided by Head Start. Any violation of this policy is overcome be the fact that Holmes received notification of the appeal procedures when she read the company policy as indicated by her acknowledgment. Head Start’s minimal violation relating to notice is no-evidence of Head Start’s intent to terminate Holmes because of her filing of a worker’s compensation claim.
Holmes presents no evidence contrasting her treatment to that of other similarly situated employees. In fact, Holmes presents no evidence of any treatment whatsoever she received following her injury or any treatment others received after filing worker’s compensation claims.
*4 Finally, Holmes asserts Head Start’s reason for her discharge is false. Holmes points to a hand written memo by Head Start’s site supervisor recommending abandonment proceedings around August 1, 1995. Holmes asserts because the site supervisor recommended commencement of proceedings prior to Holmes’ release from worker’s compensation leave, the reason for her termination proffered by Head Start is false. Holmes admits in her deposition testimony that her belief is based solely on speculation. The record shows Head Start terminated Holmes on September 7, 1995, some seven business days after she was released to return to work. Holmes’ speculation is no evidence that Head Start’s asserted reason for her termination is false.
In conclusion, Holmes failed to present any evidence to support a causal connection between her worker’s compensation claim and her discharge, or to raise any genuine issue of material fact regarding her claim for retaliatory discharge.
Absence Control Policy
Moreover, Holmes’ claim must fail because as a matter of law Holmes was not terminated for filing a worker’s compensation claim. “Uniform enforcement of a reasonable absence control policy, like the three day rule in this case, does not constitute retaliatory discharge.” Texas Division-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 313 (Tex.1994) (per curiam). If an employee’s termination is required because of violation of a uniformly enforced absence control policy, the termination cannot have occurred because of the filing of a worker’s compensation claim. Continental Coffee Prods., 937 S.W.2d at 451. Under Head Start’s policy, once an employee is released from medical treatment and the three day rule is applied, it is the responsibility of the employee to notify management about her absences. Id. It is not management’s duty to contact the employee. Id. After Holmes’ release on August 29, 1995, it was her duty to contact Head Start and to report to work within three days or notify them of her intent to take other leave permitted under Head Start’s policy. Holmes did not do so. Instead, Holmes went on vacation while waiting for the written release to reach her employer. While, Head Start’s policy provides various provisions permitting an employee to take leave, Holmes must notify Head Start of her intent to avail herself of such leave. She did not do so. Holmes’ termination in accordance with the application of Head Start’s three day absence policy precludes characterization of Holmes’ termination as being in retaliation for filing a workers compensation claim.
We conclude Holmes has failed to establish the existence of an issue of material fact as to whether she was terminated for filing her worker’s compensation claim. Further, Head Start has articulated a legitimate non-discriminatory reason for Holmes’ termination that has not been shown to be false. The trial court correctly granted Head Start’s motion for no-evidence summary judgment.
*5 We affirm the trial court’s judgment.