Court of Appeals of Texas, Houston (14th Dist.).

Euda Hamilton, Appellant

v.

HARRIS COUNTY HOSPITAL DISTRICT, Appellee

No. 14-95-00204-CV.

|

Aug. 15, 1996.

OPINION

YATES.

*1 Appellant, Euda Hamilton, appeals from a take-nothing judgment in favor of appellee, Harris County Hospital District. In one point of error, Hamilton challenges the denial of her motion for judgment notwithstanding the verdict because the verdict was contrary to established principles of law. We affirm.

On February 15, 1991, Hamilton, a nursing assistant employed by the hospital district, sustained a work-related injury for which she received workers’ compensation benefits. Not long after she returned to work, Hamilton reinjured and exacerbated her previous back injury while performing her regularly assigned duties. Once again, she filed a claim for, and received, workers’ compensation benefits. She also hired an attorney to assist her. On September 3, 1991, approximately ninety days after her second injury, Hamilton’s physician released her to return to work with a lifting restriction of thirty-five pounds. The lifting restriction prohibited Hamilton from performing the duties of a nursing assistant.

While recovering from the second injury, Hamilton spoke with the head nurse in her department about a tentative position in another department, the high risk nursery. Although the position was not classified as “light duty,” Hamilton felt that she could perform all the required functions in spite of her lifting restriction. A few days before her return, however, the nursing director informed Hamilton that she had not told the head nurse that Hamilton could be assigned to the high risk nursery. The director assured Hamilton that she was not saying that Hamilton did not have a job, but instead that the position in the high risk nursery was not a light duty job.

Hamilton reported to the hospital on September 3, 1991 with the release slip to make arrangements for her return. On September 9, 1991, the hospital informed Hamilton that she had been “placed out of service” in conformity with the district’s Injury on Duty policy because her absences exceeded ninety days. The district invited her to reapply for permanent employment once she received a full medical release. Hamilton inquired about a position with the hospital district in January 1992, but did not formally apply for the job.

Hamilton filed suit against the hospital district alleging discrimination and wrongful termination. Following a trial on the merits, the jury returned a verdict in favor of the hospital district. Hamilton filed a Motion for Judgment Notwithstanding the Verdict (JNOV) and a Motion for New Trial, which the trial court denied. Hamilton appeals from the denial of her motion for JNOV.

We review the denial of a motion for JNOV by the same standard used to evaluate the granting of a JNOV. Fenwal, Inc. v. Mencio Security, Inc., 686 S.W.2d 660, 663 (Tex.App.-San Antonio 1985, writ ref’d n.r.e). A trial court properly enters a JNOV when (1) the evidence is conclusive and one party is entitled to judgment as a matter of law; or (2) a legal principle precludes recovery. John Masek Corp. v. Davis, 848 S.W.2d 170, 173 (Tex.App.-Houston [1st Dist.] 1992, writ denied) (citing Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 227 (Tex.1990); Stevenson v. Koutzarov, 795 S.W.2d 313, 319-20 (Tex.App.-Houston [1st Dist.] 1990, writ denied)). To uphold a trial court’s JNOV, an appellate court must determine that no evidence supports the jury’s findings, or the converse, that the evidence establishes an issue as a matter of law, and the jury was not free to make a contrary finding. Id. (citing Exxon Corp. v. Quinn, 726 S.W.2d 17, 19 (Tex.1987). In reviewing a “no evidence” point, an appellate court must consider only the evidence and inferences tending to support the jury’s verdict, and disregard all evidence and inferences to the contrary. Heldenfels Bros., Inc. v. City of Corpus Christi, 832 S.W.2d 39, 41 (Tex.1992); Crockett v. Bell, 909 S.W.2d 70, 73 (Tex.App.-Houston [14th Dist.] 1995, no writ). The jury’s findings must be upheld if there is more than a scintilla of evidence supporting the verdict. Mancorp, 802 S.W.2d at 228. There is more than a scintilla when the evidence creates more than a mere surmise or suspicion of its existence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983).

*2 In one point of error, Hamilton asserts the trial court erred in denying her motion for JNOV on her wrongful termination claim because the district’s ninety-day termination policy for employees with compensable work-related injuries is retaliatory as a matter of law. Section 451.001 of the labor code prohibits an employer from discharging or discriminating 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 a proceeding in good faith under the Act; or (4) testified or is about to testify in such proceeding. Tex. Lab.Code Ann. § 451.001 (Vernon 1996).

To prevail on a claim of wrongful termination, an employee must establish a causal link between his discharge and the filing of a workers’ compensation claim. Hughes Tool Company v. Richards, 624 S.W.2d 598, 599 (Tex.Civ.App.-Houston [14th Dist.] 1981, writ ref’d n.r.e), cert. denied, 456 U.S. 991 (1982). Once the employee establishes the causal link, the employer bears the burden to rebut the alleged discrimination by showing a legitimate reason behind the discharge. Id.

Hamilton contends the district’s Injury on Duty policy as set forth in the 1990 Personnel Policies handbook establishes a discriminatory causal link as a matter of law because it provides for automatic termination of employment if an employee could not return to work within three months after sustaining a compensable work-related injury. She further asserts the policy is discriminatory because the district policy permits employees sustaining nonwork-related injuries to take up to 150 days off with reduced salary. In support of this contention, Hamilton cites Trevino v. Corrections Corp. of America, 850 S.W.2d 806, 809 (Tex.App.-El Paso 1993, writ denied). The Trevino court held that a termination letter stating that the employee was being terminated in accordance with corporate policy, which provided for the employee’s termination upon the extension of workers’ compensation beyond a six-month period, established the necessary causal link as a matter of law. Id.

The El Paso Court of Appeals found that the corporate policy was discriminatory because it tied termination directly to maintaining a compensation claim. Id.

Here, as in Trevino, the hospital district informed Hamilton by letter that she was terminated because her absences exceeded the number allowed pursuant to its policy regarding compensable work-related injuries. The district’s policy authorized the hospital to hire a replacement if an employee who sustained a compensable work-related injury was (1) out for more than ninety calendar days; (2) could not return to work three months following the injury; or, (3) the treating physician indicated that the employee could no longer perform the duties for the position. On the other hand, the district provided a short term disability leave up to 150 days for employees sustaining nonwork-related injuries. Like Trevino, the policy in this case facially ties authorized leave and termination with the receipt of workers’ compensation benefits. Thus, Hamilton met her burden of showing a causal link between the district’s policy and her termination.

*3 However, unlike Trevino, the hospital district, in this instance, met its burden to show a legitimate reason for Hamilton’s termination. The record reflects that Hamilton’s physician released her to return to work with a lifting restriction within ninety days of her injury. The lifting restriction meant that Hamilton was no longer able to perform the duties of a nursing assistant, even in the high risk nursery because that position was not classified as light duty. Consequently, Hamilton’s nursing supervisor had no choice but to replace her with someone who could perform the duties of a nurse’s assistant to ensure the continuation of quality patient care. An employer may terminate an employee who can no longer perform the essential functions of his position. Burfield v. Brown, Moore & Flint, Inc., 51 F.3d 583, 590 (5th Cir.1995) (citing Schrader v. Artco Bell Corp., 579 S.W.2d 534, 540 (Tex.Civ.App.-Tyler 1979, writ ref’d n.r.e)).

Although Hamilton could not return to her regular assignment because of the lifting restriction, the record reflects that she could have pursued other positions within the district, as outlined in the Personnel Policies handbook. Hamilton, however, made no attempt to inquire about a different position while she was still employed by the hospital, apart from her inquiry regarding the nursery position. Consequently, when Hamilton’s absences exceeded ninety days, the hospital terminated her employment. We conclude there is more than a scintilla of evidence to support a finding that the hospital district had a legitimate reason to discharge Hamilton.

Because the evidence is legally sufficient to support the jury’s findings, the trial court did not err in denying Hamilton’s motion for JNOV. Accordingly, the judgment of the court below is affirmed.