Court of Appeals of Texas, Beaumont.

Howard SHARP, Appellant,

v.

GENCO INDUSTRIES, INC., Appellee.

No. 09-96-396 CV.

|

May 21, 1998.

Before: WALKER, C.J., BURGESS and STOVER, JJ.

OPINION

PER CURIAM.

*1 Howard Sharp brought suit against his employer, Genco Industries, Inc. (Genco) complaining they fired him for filing a worker’s compensation claim. The trial court granted summary judgment in favor of Genco. Sharp brings one point of error.

Sharp alleges in his sole point of error that: “The trial court erred in granting Appellee’s Motion for Summary Judgment on the basis that there were no disputed issues of material fact concerning the retaliatory discharge of the Appellant in violation of the Texas Labor Code.” Sharp argues there is a fact issue concerning whether or not Genco’s attendance policy was complied with and whether its absence control policy was neutrally applied.

The standard for reviewing summary judgments is well settled. Summary judgment is proper only when the movant establishes there are no genuine issues of material fact and proves he is entitled to judgment as a matter of law. Nixon v. Mr. Property Management, Co., 690 S.W.2d 546, 548 (Tex.1985). Proof favorable to the non-movant will be taken as true, every reasonable inference will be indulged in favor of the non-movant, and any doubts resolved in his favor. Id. at 548-49. A defendant is entitled to summary judgment if it can disprove the plaintiff’s cause of action as pleaded. See SmithKline Beecham Corp. v. Doe, 903 S.W.2d 347, 355 (Tex.1995).

Genco argued in its motion for summary judgment that its evidence established Sharp was terminated pursuant to its neutrally applied absence policy and that there was no causal link between Sharp’s discharge and any of the prohibited actions listed under Tex.Rev.Civ.Stat.Ann. art. 8307c (repealed) (codified without substantive changes at Tex.Lab.Code Ann. § 451.001-.003.¹

An employee asserting a violation of section 451.001 has the burden of demonstrating a causal link between the discharge and the filing of the claim for workers’ compensation benefits. Duhon v. Bone & Joint Physical Therapy Clinics, 947 S.W.2d 316, 319 (Tex.App.-Beaumont 1997, no writ); Terry v. Southern Floral Co., 927 S.W.2d 254, 257 (Tex.App.-Houston [1st Dist.] 1996, no writ); Tex.Lab.Code Ann. § 451.002 (Vernon 1996). This causal connection is an element of the employee’ prima facie case and may be established by direct or circumstantial evidence. Terry, 927 S.W.2d at 257. Circumstantial evidence includes, but is not limited to: (1) knowledge of the compensation claim by those making the decision on termination; (2) expression of a negative attitude toward the employee’s injured condition; (3) failure to adhere to established company policies; (4) discriminatory treatment in comparison to similarly situated employees; and (5) evidence that the stated reason for the discharge was false. Continental Coffee Products v. Cazarez, 937 S.W.2d 444, 451 (Tex.1996).

*2 Once the employee has established the causal link, it is the employer’s burden to rebut the alleged improper termination by showing there was a legitimate reason behind it. Terry, 927 S.W.2d at 257. Thereafter, in order to survive summary judgment, the burden shifts back to the employee to produce controverting evidence of a retaliatory motive. See Texas Division-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 313-14 (Tex.1994).

Sharp, an employee of Genco, sustained a knee injury in the course and scope of his employment on Friday, April 16, 1993. On that same day, Sharp saw a doctor and was given a medical report stating he was “fit for duty.” Sharp was scheduled to return to work on Monday, April 19. He did not report to work and instead went back to the doctor. He was again released with a medical report stating that he was fit for duty but that he should not lift. Sharp still did not return to work. He went to the Genco office to pick up his pay check on Wednesday, April 21. On that day, Sharp delivered to Jill Clement, safety supervisor at Genco, a medical form he received from his doctor dated April 21 which stated that he was scheduled for an MRI in two days. This form did not state that he was unfit for duty or otherwise change or contradict his April 19 medical report. Clement terminated Sharp on April 21. That same day, Sharp told Clement that he was going to see a doctor of his choice.

In his brief, Sharp argues that a fact issue exists as to “whether or not [he] was terminated in retaliation for exercising his rights under the Texas Workers’ Compensation law.” In support of his argument, he urges there are fact disputes in the record, i.e., Sharp alleges he was fired on April 20th and on that date he told Clement that he was going to see a doctor of his choice. He contends that the fact that he was fired before he was absent from work for three days is evidence that Genco did not follow its own absentee policy but instead fired him because he intended to pursue a workers’ compensation claim.

At the outset we note that Sharp also states in his brief that he was fired on April 21, 1993. Additionally, attached to his response to his motion for summary judgment, Sharp states in an affidavit that his employment with Genco terminated on April 21, 1993. In his supplemental response to Genco’s supplemental motion for summary judgment, Sharp attached his deposition testimony wherein he stated he was terminated on Tuesday, April 20, 1993, the day he spoke with Clement and gave her his doctor’s reports and picked up his check. However, Sharp’s deposition testimony indicates his confusion as to the date this transpired. During the deposition he also stated that it was possible that he went back to the doctor on April 21 which may have been the date his conversation with Clement took place and the date he was fired.

As evidence for its motion for summary judgment, Genco produced copies of an Employee Termination Report dated April 21, 1993. Additionally, Genco produced an affidavit from Clement stating that all employees absent from work without prior approval for three days were subject to immediate termination and that Sharp was terminated because he violated this attendance requirement and refused to report to work, even on a limited duty basis, even though his physician had released him to return to work. In her affidavit, Clement stated that after he was injured, Sharp did not report back to work. The record reflects that he came to the Genco office to pick up his check on Wednesday, April 21 and that was the day he was fired for excessive absenteeism. She also stated Sharp returned to the doctor on April 21 and then presented her that day with a form which stated that he was scheduled for an MRI two days later. Sharp stated in his deposition that the day he was fired, he went back to the doctor for the third time and brought the medical form he received that day into Genco, along with his medical report from April 19. Genco’s summary judgment evidence included the doctor’s report for his third doctor visit dated April 21, 1993. Genco’s summary judgment evidence constituted proof that Sharp was fired on April 21 and that he had been absent for three days when Genco fired him.

*3 Genco established a legitimate reason for his termination: he violated their three-day absentee rule. Sharp has not produced controverting evidence of a retaliatory motive for his discharge. He has not produced evidence showing that Genco did not comply with its attendance policy when it fired him or that there was a causal link between his discharge and his filing of a workers’ compensation claim.

Sharp’s sole point of error is overruled. The judgment of the trial court is affirmed.

AFFIRMED.

	Footnotes
1		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; (footnote omitted) or (4) testified or is about to testify in a proceeding under Subtitle A. Tex.Lab.Code Ann. § 451.001 (Vernon 1996).