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At a Glance:
Cavender v. Houston Distributing Co., Inc.
July 1, 2004
176 S.W.3d 71
1st COA – Houston
Published Opinion

Cavender v. Houston Distributing Co., Inc.

Court of Appeals of Texas,

Houston (1st Dist.).

Joseph Earl CAVENDER, Appellant,



No. 01–03–00753–CV.


July 1, 2004.

Attorneys & Firms

*72 Dawn F. Lin, Law Offices of Lin & Associates, Houston, TX, for Appellant.

R. Michael Moore, Houston, TX, for Appellee.

Panel consists of Justices HIGLEY.


SAM NUCHIA, Justice.

Appellant, Joseph Earl Cavender, sued appellee, Houston Distributing Company, Inc., for wrongful termination of his employment in violation of section 451.001 of the Texas Labor Code. A jury found in favor of appellee, and the trial court rendered judgment that appellant take nothing. We affirm.


Appellant was injured in the course and scope of his employment with appellee and filed a workers’ compensation claim. Appellant began his leave due to his injury on August 10, 2000 and was released by his physician to return to work on October 21, 2001. During appellant’s employment with appellee, it was appellee’s policy to discharge an employee who had missed more than 180 consecutive days of work. Consistent with this policy, appellee terminated appellant’s employment on June 22, 2001 for having missed more than 180 consecutive days of work. Appellant then sued appellee for wrongful termination for filing a workers’ compensation claim.

The case was tried to a jury. In the court’s charge, the jury was asked,

Did Houston Distributing Company, Inc. discharge Joseph Earl Cavender because he filed a worker’s compensation claim in good faith?

There may be more than one cause for an employment decision. An employer does not discharge an employee for filing a worker’s compensation claim in good faith if the employer would have discharged the employee when it did even if the employee had not filed a worker’s compensation claim in good faith.

Answer “Yes” or “No.”

The jury answered “No.” The trial court rendered a take-nothing judgment against appellant and in favor of appellee.


Appellant presents a single issue on appeal: “Houston Distributing Company, Inc. violated Joseph Earl Cavender’s rights, under Section 451.001 provides in pertinent part:

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....

TEX. LABOR CODE ANN. § 451.001 (Vernon 1996). Appellant reasons as follows: appellant was discharged for having missed more than 180 consecutive days from work; the only reason appellant missed more than 180 consecutive days from work was that he was on workers’ compensation leave due to his injury; therefore, appellant was discharged because he applied for workers’ compensation benefits. Appellant’s reasoning is not supported by Texas case law.

The Supreme Court of Texas has held that “[u]niform enforcement of a reasonable *73 absence-control provision ... does not constitute retaliatory discharge.” Id. at 313–14.

Appellant cites Id. at 446, 451. Appellant interprets these statements as legal rulings of the court. They are not. Rather, they further explain the three-day rule as applied by the employer, Continental. Nevertheless, based on his incorrect premise, appellant argues that “it appears that the Court would follow the opinion of the Attorney General of Texas1 and the holdings of other jurisdictions2 that an employer cannot terminate an employee for the sole reason that the employee misses time from work while on worker’s compensation leave.” Appellant cites no Texas cases to support his argument.

Nothing in the supreme court’s opinions in 876 S.W.2d at 313.

We overrule appellant’s sole issue and affirm the judgment of the trial court.



Appellant is apparently referring to Attorney General Opinion No. JM–227, issued on November 7, 1984, in which the attorney general stated that a state agency may not terminate its employees who are on workers’ compensation leave based on a policy that automatically terminates any employee who is absent more than six weeks. Tex. Division–Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 313 (Tex.1994).


Appellant cites Ohio, Kansas, Maine, and California decisions to support his position that an employer cannot terminate an employee for being absent from work while on workers’ compensation leave. See Judson Steel Corp. v. Workers’ Comp. Appeals Bd., 22 Cal.3d 658, 150 Cal.Rptr. 250, 586 P.2d 564 (1978).

End of Document