Court of Appeals of Texas,

Houston (14th Dist.).

Christopher SHAW, Appellant,

v.

ARRUTH ASSOCIATES, INC., Appellee.

No. 14-95-00894-CV.

|

March 20, 1997.

Panel consists of Chief Justice MURPHY and Justices ANDERSON and O’NEILL.

OPINION

ANDERSON.

*1 This is an appeal from a summary judgment in favor of appellee, Arruth Associates, Inc. (Arruth). In one point of error, appellant, Christopher Shaw (Shaw), contends (a) the trial court erred in granting summary judgment because there was factual proof that Shaw was terminated in violation of the statute prohibiting discrimination against employees who file workers’ compensation claims, See Tex.Rev.Civ. Stat. Ann.. Art. 8307c (Vernon1993);¹ and (b) Arruth failed to prove it was entitled to summary judgment as a matter of law. We affirm.

On March 4, 1993, Shaw was hired as lead maintenance man for an apartment complex managed by Arruth, a real estate management company. On May 5, 1993, Shaw fractured his right heel in the course and scope of his employment. He reported his injury to Arruth, and his workers’ compensation claim was accepted immediately. The day after the injury, Shaw told Arruth he would be off work in accordance with doctor’s orders.

At the time of the accident, Shaw’s salary was $1,354 a month and a free apartment valued at $599 a month. His salary benefits ended on May 6, 1993, and he did not receive a workers’ compensation check until May 28, 1993. When Shaw went on medical leave, the apartment complex was without maintenance personnel, so Arruth posted an advertisement in the Houston Chronicle on May 11, 1993, soliciting applicants to replace Shaw. On May 18, 1993, pursuant to its employees manual rent payment policy, Arruth demanded Shaw pay rent on his apartment. On May 25, 1993, Arruth terminated Shaw’s right of occupancy and demanded he vacate the apartment by May 28, 1993. Arruth also informed Shaw his discretionary leave of absence would cease June 5, 1993, and that he would be terminated that day. In early June, Shaw vacated the apartment, and Arruth turned his name over to the credit bureau for non-payment of rent. Shaw’s doctor released him to work on July 12, 1993.

Shaw claims Arruth fired him because he filed a workers’ compensation claim. Arruth claims it fired Shaw because he refused to comply with the rent payment policies set forth in Arruth’s written personnel manual, a legitimate, non-discriminatory reason.

Arruth’s summary judgment proof included affidavits of supervisory and administrative personnel stating that Shaw’s termination was unrelated to his compensation claim. The proof indicates that Arruth employees who live on properties managed by the company and receive subsidized or free housing as part of their compensation are required to execute a standard Texas Apartment Association lease and an amendment. The lease amendment governs the terms of the employee’s residence on the premises while employed by Arruth. The term of the lease executed by Shaw began on March 18, 1993 and was to extend through the last day of his employment with Arruth. Paragraph 8 of the lease amendment stated that employees who were on an approved leave of absence were to pay rent in accordance with “policies existing as of the date of the leave of absence.”

*2 The policy in effect when Shaw was hired provided that employees with less than one year of service on leave of absence would, for the first seven days of absence, pay the same rent as they paid prior to their absence. After the expiration of seven days, the employee would be obligated to pay full market value for the apartment. During his deposition, Shaw acknowledged that he briefly reviewed Arruth’s employee policy manual in the apartment complex office.

Appellee contends there is no proof of a causal link between Shaw’s discharge and his workers’ compensation claim. A plaintiff does not have to prove that his workers’ compensation claim was the sole cause of his discharge. Santex, Inc. v. Cunningham, 618 S.W.2d 557, 559 (Tex.Civ.App.-Waco 1981, no writ). He must merely establish the “causal connection” between his discharge and the filing of the workers’ compensation claim as an element of his prima facie case. Investment Properties Management, Inc. v. Montes, 821 S.W.2d 691, 694 (Tex.App.-El Paso 1991, no writ). Circumstantial evidence, and the reasonable inferences from such evidence, can prove the causal connection. Paragon Hotel Corp. v. Ramirez, 783 S.W.2d 654, 658 (Tex.App.-El Paso 1989, writ denied). Once the link is established, it is the employer’s burden to rebut the alleged discrimination by showing there was a legitimate reason behind the discharge. Hughes Tool Co. 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, 102 S.Ct. 2272, 73 L.Ed.2d 1286.

Circumstantial evidence sufficient to establish a causal link between termination and filing a compensation claim includes: (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. Palmer v. Miller Brewing Co., 852 S.W.2d 57, 61 (Tex.App.-Fort Worth 1993, writ denied); Montes, 821 S.W.2d at 694-95; Paragon Hotel Corp., 783 S.W.2d at 658.

In support of his claim that he was fired in retaliation for his workers’ compensation claim, Shaw offered the following proof: (1) It is undisputed appellee was aware of Shaw’s claim; (2) one of Shaw’s supervisors told him when he filed his workers’ compensation claim, “there goes my bonus.” After Shaw was terminated, Arruth filed a negative report with the credit bureau and contested his claim for unemployment benefits; (3) Arruth’s demand that Shaw pay rent on a previously “free” apartment, which Shaw claims is tantamount to a failure to adhere to established company policies; (4) Arruth’s policy that employees on leave must, after a short grace period, pay market value for their apartments was instituted in January, 1993, shortly before Shaw was hired. Shaw was the first employee to fall under the provision of the employment agreement. Since Shaw’s termination, several employees on leave have been required to pay rent for their apartments. (5) Arguing that he had never been required to pay rent prior to his injury, Shaw contends the timing of Arruth’s demand that he pay rent was unreasonable and retaliatory. It is undisputed that Arruth’s demand for rent and notice of Shaw’s termination predated his first workers’ compensation payment.

*3 In its defense, Arruth claims that its demand for rent was made in accordance with the “rent payment policy” adopted January, 1993. That policy provided that an employee’s leave of absence was at the sole discretion of the property supervisor. After a 30-day period, the employer had the discretion to extend an employee’s leave of absence. The deposition testimony of Julian Ferris, executive vice-president of Arruth, reveals that Arruth was aware of Shaw’s on-the-job injury and workers’ compensation claim. Ferris testified that prior to the injury, Shaw’s work was satisfactory, and, before the accident, there were no plans to terminate his employment. When asked about Arruth’s advertisement for a new maintenance man, Ferris responded that the company owed a duty to its tenants to insure there was maintenance on site. He further explained that if Shaw’s position was not available when he was released to return to work, the company would have attempted to place Shaw at one of its other properties.

After Shaw went on leave, he was given seven days of free rent according to the provisions of the employee manual. On May 18, 1993, five days after the expiration of the free rent period, Ferris notified Shaw in writing of his obligation to pay rent under the terms of the employee manual. Shaw did not contact Ferris, nor did he pay any rent. On May 25, Arruth advised Shaw in writing that it had instituted eviction proceedings, informed him that his leave of absence would not be extended, and terminated him as of June 5, 1993. Ferris also stated that Arruth has uniformly required employees on leave of absence to pay rent. Because none of these employees have refused to pay rent, they have not been discharged.

Appellee contends it terminated Shaw because he refused to pay rent after the expiration of the seven day period, and merely followed its policy in discharging him. If not rebutted by some evidence of a retaliatory motive, uniform enforcement of a reasonable personnel policy does not constitute retaliatory discharge. Texas Division-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 313 (Tex.1994); See also Palmer v. Miller Brewing Co., 852 S.W.2d 57, 62 (Tex.App.-Fort Worth 1993, writ denied). The employee has the burden of proving that instituting a compensation claim was a factor in their termination. Id. The employee’s subjective belief is not enough to support a causal connection. Hughes Tool Co., 624 S.W.2d at 599.

Appellant claims that Arruth failed to prove that it was entitled to summary judgment as a matter of law. We disagree. Although Arruth’s summary judgment proof includes affidavits from interested witnesses, this proof is clear, positive, direct, credible, free from contradictions and inconsistences, and could have been readily controverted. See Tex.R. Civ. P. 166a(c). Shaw failed to provide proof controverting Arruth’s neutral explanation for his termination or raising a material issue of fact. Absent such controverting evidence, summary judgment based on Arruth’s evidence and affidavits was proper. Carr v. Brasher, 776 S.W.2d 567, 571 (Tex.1989).

*4 Shaw also offers an affidavit from Walter Fortenberry, an attorney, in support of his argument that Arruth’s rent payment policy is in violation of article 8307c. Fortenberry’s statement is no more than a conculsory legal opinion. Legal conclusions and opinions made in an affidavit are not competent summary judgment proof and are insufficient to raise a fact issue in response to a motion for summary judgment. Green v. Unauthorized Practice of Law Comm., 883 S.W.2d 293, 297 (Tex.App.-Dallas 1994, no writ).

We find Shaw offered no proof, either circumstantial or direct, which would controvert Arruth’s explanation that his termination was the result of non-discriminatory application of the company’s rent payment policy. We overrule appellant’s point of error and affirm the trial court’s judgment.

(O’NEILL, J., concurs in the result only).

	Footnotes
1		Now codified as Tex. Lab.Code Ann. § 451.001 (Vernon 1996).