Court of Appeals of Texas, El Paso.
Jesus ACUNA, Appellant,
A.O. SMITH CORPORATION d/b/a A.O. Smith Water Products Company, Appellee.
Dec. 20, 2001.
Appeal from the County Court at Law # 7 of El Paso County, Texas, (TC # 98-2454).
Before Panel No. 3 CHEW, JJ.
DAVID WELLINGTON CHEW, Justice.
*1 Appellant Jesus Acuna (“Acuna”) appeals from the trial court’s granting of summary judgment for Appellee A.O. Smith Corporation d/b/a A.O. Smith Water Products Company (“A.O.Smith”). Acuna brings one issue: The trial court erred in granting summary judgment for A.O. Smith.
Acuna was injured in August 1995, while working for A.O. Smith’s quality control and quality assurance department. He reported the injury to the Warehouse Manager Jerry McAnarney, Production Supervisor Charlie Gound, and Safety Director Fred Aragon. He received treatment from a physician, who imposed medical limitations on his work. Acuna then filed his workers’ compensation claim on August 14, 1995.
When Acuna returned to work with the medical limitations, his supervisors not only expressed negative views on his condition but ignored the medical limitations and placed him at his regular work. The QC/QA facilitator Art Montano, Gound, and McAnarney issued and attempted to issue negative performance evaluations for poor job performance twice between August and September 1995. Acuna then reported that he had not been assigned to light duty to Ada Hatten, the supervisor of administrative services, who handled Acuna’s workers’ compensation and human resources issues. Hatten was assured by McAnarney that Acuna’s job complied with his medical release and that he had been assigned light duties, and she asked him to “make sure that anybody else that might be assigning work to Chuy [Acuna] also understands that.”
Aragon also told Acuna that he would not be compensated for the additional therapy and medical treatment when he returned to work in August 1995. Hatten was aware of this statement as well, and she testified that she assured Acuna that he would be compensated for his lost wages while he was under medical treatment. She said that Aragon did not have the authority to represent to or decide on an employee being on compensation while under medical treatment for work-related injuries.
Acuna was referred to a specialist in September 1995, and surgery was performed on his left hand for carpal tunnel syndrome.
From 1995 to 1996, Acuna and Hatten talked monthly about his condition, and she would ask him whether he was coming back to work without telling him of the availability of light-duty positions. Hatten was not responsible for creating or looking for a light duty position. She also said that she did not discuss available positions because he had been unable to perform the lightest duty that had been given to him when he first returned to work in August 1995. After the surgeries had been performed and his physician indicated Acuna had reached maximum medical improvement, Hatten and Acuna did not discuss Acuna’s abilities again because he still had medical restrictions.
*2 On January 13, 1997, A.O. Smith discharged Acuna from its employment stating that his physician had indicated he had reached maximum medical improvement and Acuna had not given A.O. Smith any indication of his intent to return to work. Hatten, who had made the decision to discharge Acuna, stated that since A.O. Smith’s fiscal year was beginning, with no light duty available to accommodate Acuna’s medical restriction, she had to discharge him.
Standard of Review
In reviewing a traditional summary judgment, the moving party has the burden of establishing that no material fact issue exists and it is entitled to judgment as a matter of law. Weiner v. Wasson, 900 S.W.2d 316, 317 (Tex.1995).
TEX.LAB.CODE ANN. § 451.001
TEX.LAB.CODE ANN. § 451.001 expressly prohibits retaliatory termination under the Workers’ Compensation Act:
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.
Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450-51 (Tex .1996). The proof may be by circumstantial evidence, such as:
*3 (1) the employer’s knowledge of the compensation claim by those making the decision to terminate;
(2) a negative attitude towards the employee’s injured condition;
(3) failure to adhere to established company policies;
(4) discriminatory treatment of the injured employee in comparison to similarly situated employees; and
(5) providing incentives to refrain from reporting on-the-job injuries.
Coffee Prods. Co., 937 S.W.2d at 450-51.
Knowledge of a Workers’ Compensation Claim
It is undisputed that A.O. Smith was aware of Acuna’s workers’ compensation claim.
Negative Attitude Toward the Employee
A.O. Smith argues that Acuna never pointed to a specific expression of a negative attitude by A.O. Smith toward his injury and filing of the workers’ compensation claim, and this is not addressed in Acuna’s brief. Acuna asserted that his supervisors at A.O. Smith expressed negative views on his injury. First, when he first reported the injury to Charlie Gound in August or September 1995, Gound said, “ ‘You’re just lazy. If you don’t like it, there’s the door. If you can’t handle the job, there’s the door.’ “ Second, also in August or September 1995, Fred Aragon also stated to Acuna, “ ‘How could you hurt your hands when you don’t do shit anyway?’ “
A.O. Smith points out first that a coworker making a negative comment is not evidence of the employer’s negative attitude toward the injured employee, if the coworker making the comment is not involved in the decision to discharge the injured employee. See McIntyre v. Lockheed Corp., 970 S.W.2d 695, 698 (Tex.App.-Fort Worth 1998, no pet.)(An employer does not express negative attitude toward an injured employee when the negative statement is from a quality assurance director without the power to fire an employee). We have not found and Acuna does not point out in the record an instance where Hatten, who discharged Acuna, made any negative comments or exhibited behavior that expressed a negative attitude toward Acuna based on his claims for workers’ compensation.
Adherence to a Company’s Policy
A.O. Smith contends that Acuna failed to show (1) the company’s failure to adhere to company policy on progressive discipline and (2) the relevance of progressive discipline to Acuna’s dismissal. Acuna stated in his affidavit that A.O. Smith did not follow the company’s policy on progressive discipline in discharging him when the company did not give him oral warnings before issuing written warnings on his work performance. Acuna said the incidents occurred after he had been injured and was receiving medical treatment.
*4 A.O. Smith argues that Hatten, in making the decision to discharge Acuna, did not take into consideration the discipline issue. Rather, Hatten testified during her deposition that she had made the decision based on: (1) Acuna’s reaching maximum medical improvement without being able to return to his regular work; (2) no indication that Acuna could or would return to work; and (3) the beginning of a fiscal year and his case had to be closed (the worker’s compensation carrier was closing out Acuna’s claim). Hatten also testified that A.O. Smith did not have a policy on terminating employees who had been on leave of absence for a certain amount of time.
Acuna has brought forward no evidence to indicate that Hatten considered other factors, such as discipline, in making the decision to discharge him from A.O. Smith’s employment.
Discriminatory Treatment in Comparison to Other Employees in Similar Situation
Neither of the parties have indicated that there were other employees in a similar situation, and Hatten actually testified that this was the first time that she had dealt with an employee in Acuna’s situation.
Evidence that the Stated Reason for the Discharge is False
A.O. Smith gave three reasons for Acuna’s discharge: (1) Acuna had reached maximum medical improvement; (2) Acuna gave no indication he could or would return to his regular position; and (3) the beginning of a new fiscal year.
Maximum Medical Improvement
A.O. Smith points out that the letter discharging Acuna from its employment indicated that one of the reasons for the termination was that he had reached maximum medical improvement. Acuna’s physician had also indicated on August 20, 1996, that he had reached maximum medical improvement. Hatten also testified in her deposition that the termination was due to Acuna having reached maximum medical improvement and unavailability of a positions to accommodate his medical limitations coupled with his inability to do anything more than light duties.
Acuna argues that the termination letter states only that A.O. Smith was aware that his physician had indicated he had reached maximum medical improvement, without specifying Acuna’s inability to perform the essential functions of his regular job or that there were no other positions available to accommodate his injury. He claims that he would have taken a position had one been offered to him, if he was capable of performing.
While Acuna’s arguments have merit, it does not create an issue of fact as to whether his maximum medical improvement was a false reason for discharging him. The termination letter clearly states that A.O. Smith’s awareness of Acuna’s having reached maximum medical improvement contributed to its decision to discharge him.
No Indication of Acuna’s Willingness or Ability to Return to Work
A.O. Smith’s letter discharging Acuna from its employment indicated that the lack of communication on his ability or willingness to return to work was a reason for discharging him. Hatten testified similarly.
*5 Acuna contends however that Hatten’s testimony is conflicting and inconsistent as to the reasons for discharging him in the letter. He testified that Hatten asked him how he was doing and when he would be returning to work and on each occasion he submitted his physician’s report to her. Acuna replied each time that he would return to work after completing medical treatment. Acuna said that he would have accepted a position had he been able to perform it. He also argues that Hatten never inquired as to his ability after his second surgery and could not have reached an informed decision as to whether he could now perform the light duties that he had been incapable of performing before the surgery.
Beginning of the Fiscal Year
Although not stated in the termination letter, Hatten testified that the decision to discharge Acuna was reached at the beginning of the fiscal year, when his claim was being wound up and his case had to reach a closure. During deposition, she explained the significance of the fiscal year:
Q: Why did that enter into the-why was that a reason, that it was the start of a new year? What was the significance of that to you in the termination?
A: I don’t know if there was really much of a significance other than this had been going on for so long, the employee’s condition had not improved, and even though he had reached MMI [maximum medical improvement], he hadn’t given me any indication that he would be coming back at any point in time, and so the decision was made that we would just go ahead and bring it to some kind of closure.
Acuna argued that this statement established that the reasons stated in the letter were not the lone reasons for firing him and there was a causal link between his workers’ compensation claim and discharge. He has not presented evidence that shows falsity of the reasons for discharging him stated in the termination letter.
A.O. Smith’s failure to articulate all of its non-retaliatory reasons for discharging Acuna in the termination letter fails to establish falsity of the reasons stated. Hatten’s testimony provides no basis to conclude that the workers’ compensation claim was the factor for the discharge. In fact, her testimony indicates that the fiscal year was the appropriate time for A.O. Smith to assess the status of the claim. Once it was determined that the workers’ compensation carrier was closing Acuna’s case and that he would not be returning to the position, due to his having reached maximum medical improvement without the ability to resume his regular position, then A.O. Smith made the decision to discharge him. There is no evidence to the contrary.
After considering the evidence, we have not found probative evidence, direct or circumstantial, which raise a fact issue on the question of whether, but for Acuna’s filing of a workers’ compensation claim, A.O. Smith would not have terminated him when it did. The person who had the authority to discharge Acuna at A.O. Smith expressed no negative comments or exhibited negative attitude toward Acuna’s injured condition. A.O. Smith did not fail to adhere to an established policy on Acuna’s discharge, and any failure to adhere to the disciplinary policy did not relate to Acuna’s discharge. Furthermore, the reasons for discharging Acuna from his employment are supported by the evidence, and there is no evidence that the reasons were false. We overrule Acuna’s issue and affirm the judgment of the trial court.