Court of Appeals of Texas, Beaumont.

James W. WRIGHT, Appellant

v.

LOUISIANA PACIFIC CORPORATION, Appellee.

No. 09-92-294 CV.

|

May 12, 1994.

Before WALKER, C.J., and BROOKSHIRE and BURGESS, JJ.

OPINION

BROOKSHIRE.

*1 An appeal from the granting of a summary judgment. The summary judgment was adverse to appellant, Wright.

The appellant alleged wrongful discharge from his employment. The wrongful discharge, it was alleged, resulted from retaliation for the appellant’s making a claim under the Texas Workers’ Compensation Law, Tex.Rev.Civ. Stat. Ann. art. 8306 et seq. Appellant contends that his termination of employment is in violation of the statutory prohibition against such retaliatory action. See Tex.Rev.Civ. Stat. Ann. art. 8307(c).

This appeal then and the underlying suit is based on Tex.Rev.Civ. Stat. Ann. art. 8307(c) (Vernon Supp.1993). Louisiana Pacific argues that there was no genuine issue of material fact in existence to give vitality to Wright’s cause of action.

When defendant moves for a summary judgment, that defendant has the burden of showing, as a matter of law, that no genuine issue of material fact is in existence as to the non-movant’s cause of action. See Griffin v. Rowden, 654 S.W.2d 435 (Tex.1983). This burden may be discharged when the defendant is able to disprove at least one essential element of the plaintiff’s cause of action. See and compare Rosas v. Buddies Food Store, 518 S.W.2d 534 (Tex.1975).

Essential to the plaintiff’s cause of action is the establishment of a causal connection between the termination and the employee’s claim for Workers’ Compensation Benefits. Hughes Tool Co. v. Richards, 624 S.W.2d 598 (Tex.Civ.App.-Houston [14th Dist.] 1981, writ ref’d n.r.e.), cert. denied, 456 U.S. 991, 102 S.Ct. 2272, 73 L.Ed.2d 1286 (1982).

An affidavit of a Mr. Ingram of Louisiana Pacific meeting the requirements of summary judgment proof tends to demonstrate that the appellant was terminated for one reason and one reason only. That sole reason was appellant’s failure to clean and keep clean the interior, as well as the exterior, of parts of a truck that was used by him in his work. This affiant (Mr. Ingram) also swore that a part of his duties as a manager of a terminal included severing and terminating employees for clear violations of company policies and company rules.

The movant had a firm policy that had been established since about 1979 whereby the employees of the movant were required to both wash and clean the interior and exterior of the trucks that the employees used. The affiant of the movant terminated the appellant on November 27, 1989. Ingram swore that prior to the termination of Wright on November 27, 1989, he did not have any knowledge that Wright had either claimed in the past or was claiming an on-the-job injury. It is not perceived that the non-movant denies the charged violations of company policy as to his truck-but appellant states someone else committed the violation.

The appellant made a lengthy response. A part of the response is a handwritten note by Arlyss A. Wright dated June 15, 1992. This handwritten note was made approximately two and a half years after the termination of employment. Ms. Wright stated she personally called Mr. Ingram on November 20, 1989 and notified him that her husband James was going to the doctor for his head injury that her husband had received at the Lufkin plant. There is no mention of any decision to make a claim for compensation.

*2 Visiting a doctor is not equivalent to the filing of a Workers’ Compensation Claim. Ms. Wright’s handwritten statement does not state that his termination was due to the filing of a future claim for compensation. The operative part of Arlyss A. Wright’s statement is hearsay and fails the test of the standard of summary judgment proof. Rule 166a(c)(f). The handwritten statement fails to establish that Arlyss A. Wright could identify the voice of Ingram. The non-movant failed to properly demonstrate who the recipient of the alleged phone call was or what his authority was to receive same. Importantly, the handwritten statement makes no reference to a claim for compensation either in being or to be filed in the future. The handwritten statement is clearly without necessary predicates.

The other exhibits attached to the non-movant’s response are hearsay as to the movant; they are not competent evidence. Tex.R. Civ. Evid. 803(6), 902(10). Under this record, Arlyss A. Wright was not shown to have been competent to identify Ingram by telephone nor was she competent to know his scope of authority. Indeed, she does not attempt to do so. Rule 166a(f).

The appellant complains of the overruling of a motion for continuance. By well established decisional authorities, the denying of a motion for continuance lies within the broad discretion of the trial court. No error is shown as to the motion for continuance.

Up to this point, we have reviewed only a portion of the summary proof, which portion was stressed by Louisiana Pacific. However, on July 7, 1992, the non-movant himself, James W. Wright, filed an affidavit. The hearing on the motion for summary judgment was held on July 31, 1992. The order granting the motion for summary judgment was dated August 19, 1992.

The affidavit of the appellant is lengthy and in considerable detail. We attempt to summarize this affidavit as follows:

On or about October 3, 1989, appellant was an employee of Louisiana Pacific Corporation. His capacity was a driver of tractor/trailers. He was assigned a certain Mack truck. On October 3, 1989, he swore that he was injured by being hit by a gate that had not been secured by the guard who opened it. This event took place at an old loading dock in the rear of the Lufkin plant. The gate swung into the side of trailer and caught a certain winch which was used to secure the load on the trailer being driven by appellant. Appellant backed up to relieve any bind involving the gate-but was unsuccessful. The appellant then swore he got between the trailer and the gate to push it away.

As the gate swung back, the affidavit states the gate hit appellant an knocked him into the trailer causing his head to strike a winch. The blow knocked appellant semi-conscious; profuse bleeding resulted from the injury to his head. Two other Louisiana Pacific employees on the old loading dock came to his aid. They carried him to the office of the Lufkin plant of Louisiana Pacific. A secretary there finally controlled the bleeding by applying some type of jelly dressing.

*3 He was told to pull around to the front of the office to receive paperwork before returning to New Waverly, Texas. Appellant swears that he was dizzy and disoriented at the time. He drove towards New Waverly. But before he arrived there, he had to pull the tractor trailer over to the side of the road. He passed out due to loss of blood resulting from the accident or blow to his head. It became dark. He finally came to and proceeded to check his load and continued into New Waverly. He stated he was covered with blood from head to foot.

He reported this incident to the guard at the terminal. He told the guard what had happened. Later that week he asked the same guard if he would be a witness since the appellant swears that Delton Ingram refused to listen to appellant about the accident. Then, around October 10, 1989, he tried to talk to the Safety Department. The Safety Department advised appellant that this was strictly Delton’s responsibility. The guard was afraid to say anything because he would be fired. Appellant swears that Delton Ingram had him change his log book relating to the accident. By this time, the appellant was getting dizzy and losing perception as to distance and losing sight, especially in his right eye.

The affidavit further states that a neighbor of the appellant had him call an attorney and appellant contacted Ms. Linda Cryer who agreed to represent appellant and Cryer did in fact, according to the affidavit, file a compensation claim. However, appellant continued to work as he had two boys in school and did not want to take a cut in pay. His family was in a bind. Appellant swears that he kept his truck clean as required. He again swore that Delton Ingram would have no contact with him. The affidavit states that Delton acted toward appellant as if Delton was trying to find a reason to fire him.

On November 17, 1989, appellant took a load of lumber to Corpus Christi. It started to rain. When he arrived in the vicinity of Victoria, he got out to cover his load with a tarp. After removing the tarps from the rack, he became dizzy. Two other drivers stopped to help him. The load was tarped and tied down. Appellant had to rest for two hours. But he was okay to drive into Corpus Christi on time. He then stated that he went to get his boys and go back to New Waverly to wash the truck and trailer. That was Saturday, November 18, 1989. Appellant reaffirms that with help the truck was washed and the trailer was washed. The windows were washed and were spotless.

Then on November 20, 1989, he reached Willis, Texas. He was then unable to drive. He notified a certain guard of his condition. The affiant made a tentative appointment with a Dr. Williams for November 21, 1989. The doctor’s receptionist took all the information about the facts of the matter and attempted to verify the injury through the company as having the status of a Workers’ Compensation claim and case. But, the doctor’s office and secretary advised that Louisiana Pacific would not give them (the doctor and his secretary) an okay. The doctor’s appointment was reset later for Tuesday, November 28, 1989. By this time appellant’s condition was that he was losing his equilibrium even to walk and had a terrific headache. He also avows that he had permission to be off for a week after his truck had been cleaned and was in a spotless condition.

*4 He finally returned to Louisiana Pacific’s facility of New Waverly about 5:30 a.m. on Monday, November 27, 1989. He was still in no condition to drive the truck but he noticed that his truck, No. 8126, was filthy. It was dirty. The cab had chicken bones and garbage and aluminum foil all over the floor. The truck actually had an odor; it stunk. Nevertheless, he tried to check the tractor. It was low on fuel. He got in line to be refueled. He stated that a load ticket showed that his tractor trailer, No. 8126, had been driven 545 miles since he parked it on November 18, when it was washed and cleaned and spotless.

According to the affidavit of Wright, Mr. Delton Ingram showed up for work about 6:20 a.m. It was alleged but sworn to that Delton said something like you are fired and get your s— out of your truck and get off the yard. Wright removed his personal affects from the truck. His log book was not there. The affiant swore that he tried to contact the main office of Louisiana Pacific in Conroe, Texas, as well as the plant manager at New Waverly, but he could not succeed. Then, on November 28, he went to Dr. Williams’ Office. He was examined. The doctor stated that Louisiana Pacific refused to pay for treatment. Wright was advised that he needed X-Rays and treatment requiring a cash payment of $270 right then. He did not have the funds.

Under the summary judgment practice which is a peculiar proceeding and harsh in nature, we must take as true-whether we believe it or not-the affidavit and the summary judgment proof proffered by the non-movant. We must also consider as favorable to the non-movant any reasonable inferences to be drawn from appellant’s summary judgment proof. Again, it should be stressed that it is not for us to pass upon the credibility of the affidavit of Wright. We must take it as being true and correct. We must take as true and correct all of the favorable and reasonable inferences from the non-movant’s proof.

In view of his affidavit and in view of the language allegedly used by Ingram and in view of the guard’s position and the physician’s position and in view of the sworn statement that the truck was left spotless-but after Wright took a week off with permission-then the truck was extremely dirty, filthy, and actually stunk, we do find that a genuine issue of a material fact has been raised.

At this intermediate appellate level we perceive that summary judgments are to be reviewed de novo in accordance with the following standards: 1) the movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law; 2) in deciding whether or not there is a disputed material fact issue precluding summary judgment, the evidence favorable to the nonmovant will be taken as true and must be taken as true; and every reasonable inference must be indulged in favor of the non-movant and any doubts existing must be resolved in favor of the non-movant. Nixon v. Mr. Property Management, 690 S.W.2d 546 (Tex.1985); Turboff v. Gertner, Aron & Ledet, Inv., 763 S.W.2d 827 (Tex.App.-Houston [14th Dist.] 1988, writ denied).

*5 In addition, the usual presumption that the judgment below is correct simply does not apply in this appeal. See Montgomery v. Kennedy, 669 S.W.2d 309 (Tex.1984). Appellant raises the inference, under well-established rules, that his truck had been put into a filthy, stinking condition by someone other than the appellant. Hence, he raises the issue that that was not the sole reason for his termination. Louisiana Pacific’s position is based on the proposition that the filthy truck was the sole reason for the termination.

We think the law applicable, being art. 8307(c) provides in general that no person may discharge or in any manner discriminate against an employee because the employee has in good faith filed a compensation claim, hired a lawyer to represent him in a claim, or instituted or caused to be instituted, in good faith, any proceeding under the Texas Workers’ Compensation Act or has testified or is about to testify in any such proceeding.

Thus, we think by inference that the non-movant has shown a causal connection between his Workers’ Compensation claim and his termination even if the claim were not the only reason that he was terminated. See Hunt v. Van Der Horst Corp., 711 S.W.2d 77 (Tex.App.-Dallas 1986, no writ). In this summary judgment proceeding under decisional controlling authority, we are constrained to hold that at least a genuine issue of a material fact was raised and that fact issue is on the question of whether the appellant was fired because he had instituted a proceeding or a claim under the Workers’ Compensation Act. See Texas Steel Co. v. Douglas, 533 S.W.2d 111 (Tex.Civ.App.-Fort Worth 1976, writ ref’d n.r.e.). See Tex.Rev.Civ. Stat. Ann. art. 8307(c) (Vernon Supp.1993).

The question of whether an employee’s Workers’ Compensation Claim was at least a factor in the employer’s decision to terminate the worker presented a factual question which disallowed a summary judgment adverse to the worker. The question of the causal connection between the Workers’ Compensation Claim and his termination is a fact question.

In view of the detailed, lengthy affidavit of the non-movant, we must conclude that Louisiana Pacific’s evidence fails to entitle it to a summary judgment is a matter of law. Resolving the doubts against the movant and resolving the reasonable inferences in favor of the non-movant, we determine that the inferences raise the issue that the decision of the employer to terminate appellant was at least in part because appellant filed a Workers’ Compensation Claim. Judgment reversed, cause remanded for trial on the merits.

REVERSED AND REMANDED.