Court of Appeals of Texas, El Paso.

Paula THOMPSON, Appellant,

v.

MERCK-MEDCO RX SERVICES OF TEXAS, L.L.C., Appellee.

No. 08-99-00378-CV.

|

July 20, 2000.

Before LARSEN, McCLURE, and CHEW, JJ.

OPINION

CHEW

*1 Appellant, Paula Thompson, sustained an on-the-job injury. She subsequently filed suit alleging she was terminated in retaliation for filing a workers’ compensation claim in violation of the Texas Labor Code. See Tex.Lab.Code Ann. § 451.001, et seq. (Vernon 1996). Appellee filed its Motion for Summary Judgment claiming that Appellant could not establish a causal link between her workers’ compensation claim and her termination and that Appellee established a legitimate, non-discriminatory reason for the discharge. The trial court granted Appellee’s Motion for Summary Judgment. This appeal follows.

The Appellant was injured on the job on March 14, 1995. She was transported to a hospital, was treated by a physician, and was released to return to work. Because Appellant was still in pain the following day, she called Appellee’s Human Resources Manager, Mavonee Jeffries, to let her know she would not be returning to work. Appellant then sought treatment from other doctors and chiropractors. She obtained several authorizations to be off from work, eventually filed a workers’ compensation claim, and received compensation. However, between June 16, 1995 and August 25, 1995, Appellee did not receive written authorization for Appellant to be off work. Appellee then notified Appellant via letter dated August 1, 1995, that her employment was being terminated. Appellant claims she never received the termination letter.

On October 25, 1995, Appellant was released to return to work by her doctor. She called Ms. Jeffries that day to inquire about returning to work. Because Appellee was understaffed, Ms. Jeffries stated that she “was more than willing to give” Appellant a job again as a customer service representative if she was willing to return to work and go through retraining. Appellant claims she was told that no training classes were scheduled at that time. She stated that she called Ms. Jeffries two or three times a week to inquire about training classes and her calls were never returned.

In late November 1995, Appellant again called Ms. Jeffries to inquire about a training class. Ms. Jeffries did not return her call, so Appellant went to Oklahoma to visit her sister. Upon returning from Oklahoma on Monday, December 4, 1995, Appellant received a message from Sherry Hipple, Appellee’s Benefits Administrator, informing her that the training class was beginning on December 5, 1995. Appellant stated the message was left on Friday, December 1, 1995, at 7 p.m. She then called Ms. Hipple, reached her voice mail, and left a message asking for more details about the class. Appellant called Appellee the next morning between 6 and 9, December 5, 1995, leaving several messages for Ms. Jeffries and Ms. Hipple. She claimed her calls were not returned.

Appellant finally spoke with Ms. Hipple on December 8, 1995, and was informed that Appellee understood from her message that she could not attend training that day due to an appointment for a surgical procedure.¹ Appellant was informed that she could not “make up” the missed training day and that no other training sessions were scheduled for the remainder of the year. She later spoke with Ms. Jeffries and was told she needed to provide a note from the doctor verifying the surgery performed on December 5, 1995, or a release from the doctor. Appellant and her husband then met with Ms. Jeffries and two union representatives on December 28, 1995, and was informed that she needed a release from her doctor to return to work. Appellant testified that she did not feel like anything had been resolved after the meeting and she was told by her attorney that she would send Ms. Jeffries a letter.

*2 Appellant received a phone call from Ms. Jeffries and Ms. Hipple in January 1996, in which she was informed that Appellee had not been contacted by her attorney. She then received a letter dated January 8, 1996, informing her that since Appellee had not received the requested documentation and had not heard from her attorney, her employment was terminated. Appellant filed suit on January 8, 1998, alleging she was terminated in retaliation for filing a workers’ compensation claim in violation of the Texas Labor Code. See Tex.Lab.Code Ann. § 451.001, et seq.

Appellant presents three issues on appeal attacking the granting of summary judgment. In Issue One, Appellant contends the trial court erred in granting Appellee’s Motion for Summary Judgment because Appellant showed there is an issue of genuine fact as to whether there was a causal link between Appellant’s workers’ compensation claim and her termination. In Issue Two, Appellant argues the trial court erred in granting Appellee’s motion for summary judgment because Appellee did not provide a legitimate, non-discriminatory reason for Appellant’s termination. In Issue Three, Appellant maintains the trial court erred in granting Appellee’s motion for summary judgment because Appellee’s reliance on Burch v. City of Nacogdoches, 174 F.3d 615 (5th Cir.1999) is misplaced. We begin with a discussion of the standard of review.

Standard of Review

The standard of review on appeal is whether the successful movant at the trial level carried its burden of showing that there is no genuine issue of material fact and that a judgment should be granted as a matter of law. See Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991); Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 548-49 (Tex.1985); Cortez v. Liberty Mut. Fire Ins. Co., 885 S.W.2d 466, 469 (Tex.App.-El Paso 1994, writ denied). Thus, the question on appeal is not whether the summary judgment proof raises fact issues as to required elements of the movant’s cause or claim, but whether the summary judgment proof establishes, as a matter of law, that there is no genuine issue of material fact as to one or more elements of the movant’s cause or claim. See Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970).

In resolving the issue of whether the movant has carried this burden, all evidence favorable to the nonmovant must be taken as true and all reasonable inferences, including any doubts, must be resolved in the nonmovant’s favor. See Nixon, 690 S.W.2d at 548-49; DeLuna v. Guynes Printing Co. of Texas, Inc., 884 S.W.2d 206, 208 (Tex.App.-El Paso 1994, writ denied). Where the defendants are the movants and they submit summary evidence disproving at least one essential element of each of plaintiff’s causes of action, then summary judgment should be granted. See Perez, 819 S.W.2d at 471; Bradley v. Quality Serv. Tank Lines, 659 S.W.2d 33, 34 (Tex.1983); Cortez, 885 S.W.2d at 469. Furthermore, when a trial court’s order granting summary judgment does not specify the ground or grounds relied on for the ruling, summary judgment will be affirmed on appeal if any of the theories advanced are meritorious. See State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex.1993); Rogers v. Ricane Enter., Inc., 772 S.W.2d 76, 79 (Tex.1989).

*3 This Court has previously held that in a wrongful termination case, the employee has the burden of establishing a causal connection between the termination and his claim for workers’ compensation benefits. See Wyler Indus. Works, Inc. v. Garcia, 999 S.W.2d 494, 500 (Tex.App.-El Paso 1999, no pet.); Urquidi v. Phelps Dodge Refining Corp., 973 S.W.2d 400, 403 (Tex.App.-El Paso 1998, no pet.); Investment Properties Management, Inc. v. Montes, 821 S.W.2d 691, 694 (Tex.App.-El Paso 1991, no writ); Paragon Hotel Corp. v. Ramirez, 783 S.W.2d 654, 658 (Tex.App.-El Paso 1990, writ denied). We also concluded in Montes that the employee need not prove that the compensation claim was the sole cause of the termination; he merely has to show that it contributed to the employer’s decision to terminate him. See Montes, 821 S.W.2d at 694; Mid-South Bottling Co. v. Cigainero, 799 S.W.2d 385, 390 (Tex.App.-Texarkana 1990, writ denied). Agreeing that the plaintiff need not prove that his filing of a workers’ compensation claim was the sole cause of his termination, the Supreme Court has articulated the standard of causation for anti-retaliation cases under Section 451.001 of the Labor Code: The employee’s protected conduct must be such that without it, the employer’s prohibited conduct would not have occurred when it did. See Continental Coffee Products Co. v. Cazarez, 937 S.W.2d 444, 450-51 (Tex.1996). Thus, we must determine whether there is any evidence of probative force to raise a fact issue on the question whether, but for Appellant’s filing of a workers’ compensation claim, Appellee would not have terminated her when it did. See id. Circumstantial evidence that has been recognized as supporting a finding of unlawful discrimination includes:

• the employer’s knowledge of the compensation claim by those making the decision to terminate;

• a negative attitude towards the employee’s injured condition;

• failure to adhere to established company policies;

• discriminatory treatment of the injured employee in comparison to similarly situated employees; and

• providing incentives to refrain from reporting on-the-job injuries.

Montes, 821 S.W.2d at 694-95; Paragon, 783 S.W.2d at 658-59; see America West Airlines, Inc. v. Tope, 935 S.W.2d 908, 912-13 (Tex.App.-El Paso 1996, no writ). Further, proof that the stated reasons for discharge are false is sufficient to establish that the employee was terminated in violation of Section 451.001. See Continental Coffee Products, Co., 937 S.W.2d at 452; Paragon, 783 S.W.2d at 660.

It is undisputed that Appellee had knowledge of Appellant’s claim, as Appellee filed the claim on her behalf. As this Court has stated previously, this fact alone does not establish a causal connection between Appellant’s workers’ compensation claim and discharge. See Urquidi, 973 S.W.2d at 402. It merely places Appellant within the protected class and must be considered along with the remaining evidence. See id.

*4 Appellant claims that Ms. Jeffries’ attitude toward her changed after the filing of the compensation claim, that Karla Cox, Appellee’s insurance claims representative, was harassing her, and that Amy Hafner, the Rehabilitation Case Manager with Appellee’s insurance carrier, was disrespectful. However, the evidence showed that Appellee was willing to make modifications within reason to assist Appellant in returning to work. Appellee also offered four hour shifts to facilitate Appellant’s return to work. The evidence also showed that Ms. Cox sent Appellant a letter wishing her a speedy recovery and coordinated her benefit payments. Yet, Appellant still believed that she was being harassed by Ms. Cox. Further, Appellant told Ms. Hafner not to contact her anymore, despite the fact that it was Ms. Hafner’s job to handle Appellant’s rehabilitation and assist in her return to work. Appellant stated that she did not like the “tone” of voice Ms. Hafner used when speaking to her. Finally, Appellant admitted in her deposition that no one employed by Appellee, including Ms. Jeffries, ever tried to discourage her from filing a workers’ compensation claim. Appellant testified that no one told her, either directly or indirectly, that she would be fired if she filed a claim. Appellant also admitted that Ms. Jeffries never said anything negative to her about her injury.

Appellant testified in her deposition that she was unaware of any internal policy that Appellee violated in her termination. Appellant argues on appeal that Appellee attempted to justify its termination based on its attendance policy. However, Appellee has maintained that Appellant was terminated for failing to provide medical documentation which would excuse her absence from the training session. If Appellee was going to fire Appellant for violation of the attendance policy, it certainly would have done so during the time she was absent without authorization, March 15, 1995, April 1-3, 1995, April 25, 1995, May 3-11, 1995, May 15-June 6, 1995, and June 16-August 25, 1995, rather than wait ten months to do so. Finally, Appellant testified in her deposition that she had no evidence that she was treated any differently than any other similarly situated employees.

In examining the evidence in the light most favorable to Appellant, we fail to find any evidence of probative force to raise a fact issue on the question whether, but for Appellant’s filing of a workers’ compensation claim, Appellee would not have terminated her when it did. Since Appellant has failed in her burden of establishing a causal connection between the termination and her claim for workers’ compensation benefits, we do not reach Issues Two and Three. We affirm the judgment of the trial court.

	Footnotes
1		Appellant had a dentist appointment scheduled for the morning of December 5, 1995, and alluded to a “day surgical procedure” in one of her messages to Appellee. However, she did not make it to the appointment and the procedure was not performed that day.