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At a Glance:
Title:
Armendariz v. Redcats USA, LP
Date:
June 20, 2012
Citation:
390 S.W.3d 463
Status:
Published Opinion

Armendariz v. Redcats USA, LP

Court of Appeals of Texas,

El Paso.

Amanda ARMENDARIZ, Appellant,

v.

REDCATS USA, L.P., Appellee.

No. 08–11–00010–CV.

|

June 20, 2012.

Attorneys & Firms

*465 Roger C. Davie, El Paso, TX, for Appellant.

Bruce A. Griggs, Austin, TX, for Appellee.

Before ANTCLIFF, JJ.

OPINION

CHRISTOPHER ANTCLIFF, Justice.

In this wrongful discharge case, Amanda Armendariz (“Armendariz”) appeals the trial court’s orders granting summary judgment for Redcats USA, L.P. (“Redcats”), entering final judgment for Redcats, and denying her motion for new trial. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Armendariz worked as a telemarketer for Redcats for approximately 16 months, from mid-February 2008 until June 15, 2009. On May 19, 2009, Armendariz informed her supervisor that she was experiencing pain in her hands. As instructed, Armendariz reported her injury to human resources. After stretching exercises proved ineffective, Armendariz saw a physician at a clinic with which Redcats had a contractual relationship. The physician informed *466 Armendariz that she could continue working, which she did. During this time, Armendariz filed a workers’ compensation claim.

In its employee handbook and in a more-detailed separate written attendance policy, Redcats stressed the importance of attendance and punctuality and required its employees to maintain satisfactory attendance as a condition of employment. If an employee was to be absent from or tardy to work, the employee was required to notify his or her department of his or her absence or tardiness before his or her shift began. The written attendance policy provided that attendance infractions included being absent from work, arriving late to work by more than two minutes, and leaving early from work by more than two minutes. Pursuant to the written policy, an attendance infraction was unexcused unless incurred as part of approved leave or if supported by physician’s statement. However, the evidence establishes that Redcats also had an unwritten attendance policy known as the “half-day absence rule.” Pursuant to this policy, an employee’s unscheduled tardiness or partial absence was considered an unexcused attendance infraction, even if supported by a physician’s statement.

Redcats evaluates the performance of its employees on a scale of one to four. A performance rating of one indicated that an employee was not meeting expectations, two that an employee was partially meeting expectations, three that an employee was meeting expectations, and four that an employee was exceeding expectations. Pursuant to the written attendance policy, an employee began the calendar year with an attendance rating of four, and every six months the rating cycle began anew. As an employee incurred attendance infractions, his or her rating decreased. An employee with a rating of one faced the possibility of termination.

At the time that she reported her workplace injury, Armendariz had an attendance rating of one and had already received a final written warning from her supervisor that an additional attendance infraction would result in her termination.1 When, on June 15, 2009, Armendariz arrived to work more than three hours late, she was terminated.

Armendariz filed suit for wrongful discharge. In response, Redcats moved for traditional summary judgment pursuant to *467 Rule 166a(c) and no-evidence summary judgment pursuant to Rule 166a(i). Without identifying the basis or bases for granting relief, the trial court granted summary judgment and entered final judgment for Redcats. Armendariz moved for a new trial, but the trial court denied the motion. This appeal followed.

SUMMARY JUDGMENT STANDARD OF REVIEW

We review a trial court’s summary judgment de novo. Hernandez v. Am. Tel. & Tel. Co., 198 S.W.3d 288, 291 (Tex.App.-El Paso 2006, no pet.).

In conducting our no-evidence summary-judgment review, we “review the evidence presented by the motion and response in the light most favorable to the party against whom the summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not.” Ford Motor Co., 135 S.W.3d at 600.

A party moving for traditional summary judgment bears the burden of showing that no genuine issue of material fact exists and that she is entitled to judgment as a matter of law. Frost Nat. Bank v. Fernandez, 315 S.W.3d 494, 508–09 (Tex.2010).

WRONGFUL DISCHARGE

The Workers’ Compensation Act (Act) prohibits an employer from discharging or discriminating against an employee *468 simply because the employee has filed a workers’ compensation claim in good faith. Id.

Causal Link

In establishing a causal link between her discharge and her workers’ compensation claim, an employee may rely either on direct or circumstantial evidence. Hernandez, 198 S.W.3d at 291.

On appeal, Armendariz argues that she produced evidence sufficient to meet her prima facie burden of establishing a causal link between her discharge and her workers’ compensation claim. Specifically, she contends that she did so by producing circumstantial evidence, as required by Continental Coffee, that: (1) Redcats personnel expressed a negative attitude toward *469 Armendariz’s injured condition; (2) Redcats failed to adhere to its established company policy when it fired her; and (3) Redcats treated an employee similarly situated to her differently than it treated her.

In her reply brief, Armendariz maintains that she was not required to have produced evidence on all five of the Continental Coffee factors.”).

1. Knowledge of the Compensation Claim

In its brief, Redcats concedes that Armendariz’s supervisor knew that Armendariz had a workplace injury when he made the decision to terminate her employment. The record establishes that not only did Armendariz testify to her supervisor having such knowledge, but her supervisor testified to his own knowledge of Armendariz’s injury. Accordingly, Armendariz produced more than a scintilla of evidence that her supervisor knew she was injured when she was fired.

2. Negative Attitude

As it did in its motion for summary judgment, Redcats asserts, on appeal, that Armendariz failed to produce any evidence that Redcats’s personnel expressed a negative attitude toward her injured condition. Armendariz did not address this factor in her response to the motion for summary judgment, nor does she now address it on appeal. The record establishes that Armendariz herself testified that no Redcats employee did or said anything to discourage her from reporting her injury or from filing a workers’ compensation claim. Accordingly, there is no evidence that Redcats personnel exhibited a negative attitude toward Armendariz’s injured condition.

3. Similarly Situated Employees

Again, as it did in its motion for summary judgment, Redcats asserts, on appeal, that Armendariz failed to produce any evidence that Redcats treated a similarly situated employee more favorably than it treated her. Armendariz did not address this factor in her response to the motion for summary judgment, nor does she now address it on appeal. The record establishes that Armendariz herself testified that she was unaware: (1) of any other injured employee; (2) of any other employee who filed a workers’ compensation claim; (3) of any other employee returning to work and continuing to work after the employee reported an injury and filed a workers’ compensation claim; or (4) of any employee that she believed was fired for filing a workers’ compensation claim. Accordingly, there is no evidence that Redcats treated an employee similarly situated to Armendariz more favorably that it treated her.

4. Stated Reason is False

On appeal, neither party addresses whether there is any evidence that the stated reason for Armendariz’s discharge was false. In its motion for summary judgment, Redcats did not raise a no-evidence ground challenging this factor. *470 Rather, Redcats addressed this factor pursuant to its discussion of why it was entitled to summary judgment on traditional grounds. Redcats asserted that Armendariz’s belief that she was discharged not because of her attendance but because she sought a second opinion on her injury was not only subjective, but also belied by her own testimony that Redcats did not discourage her from seeking a second opinion. Rather Redcats informed her that the company’s insurance might not pay for the costs of a second opinion. Armendariz fails to address, much less rebut, Redcats’s assertion in her response to the motion for summary judgment. Pursuant to 937 S.W.2d at 450–51. Because she has failed to carry her burden and the record is silent as to this factor, we can only conclude that there is no evidence that Redcats’s reason for discharging Armendariz was false.

5. Failure to Adhere to Policies

Armendariz argues, on appeal, that she raised a genuine issue of material fact that Redcats failed to adhere to established company policy because the “half-day absence rule” that Redcats relied upon to terminate Armendariz for arriving late to work on June 15, 2009 did not exist. However, the evidence established that, Redcats had an unwritten attendance policy—the “half-day absence rule”—that provided that an employee’s unscheduled tardiness to or partial absence from work was considered an unexcused attendance infraction, even if supported by a physician’s statement.4 The existence of the rule was established by the testimony of Redcats personnel responsible for implementing and administering the company’s attendance policy. Here, there is no dispute that, on June 15, 2009, Armendariz was tardy to work by more than three hours. By then, Armendariz had been operating on a final written warning from her supervisor who had previously informed her that an additional attendance infraction would result in her termination. Armendariz testified that she was tardy to work because she had gone to a health clinic that morning after suffering intense menstrual bleeding that was so severe that she passed out in her bathroom. Regardless of the reason for her tardiness, Armendariz violated the company’s “half-day absence rule,” and her tardiness was therefore unexcused.

Armendariz argues that, even if such a rule existed, it was inapplicable in her case because her tardiness was due to a health emergency, which she maintains was not considered an unexcused absence under Redcats’s attendance policy. In support of her argument, Armendariz refers us to the testimony of the supervisor who discharged her that, in some cases, an emergency might constitute an excused absence. However, the supervisor never testified as to whether a partial-day absence due to a medical emergency might be excused. Moreover, Armendariz herself testified that she never had any discussions with her supervisor about such a scenario. Even when viewed in the light most favorable to Armendariz, this evidence *471 does no more than support a mere suspicion or surmise that Redcats did not adhere to the “half-day absence rule” when discharging Armendariz for her tardiness. As such, it does not rise to a scintilla of evidence, and is therefore equivalent to no-evidence. Accordingly, Armendariz has presented no evidence that Redcats failed to adhere to its company policies when discharging her.

Armendariz failed to produce circumstantial evidence on the majority of the Hernandez, 198 S.W.3d at 291.

Because we have concluded that Armendariz failed to produce evidence raising a genuine issue of material fact as to at least one element of her claim—that a causal link existed between her discharge and her workers’ compensation claim—we hold that the trial court properly granted Redcats’s no-evidence summary judgment. Moreover, because Armendariz failed to produce more than a scintilla of evidence under the standards of East Hill Marine, Inc. v. Rinker Boat Co., Inc., 229 S.W.3d 813, 816 (Tex.App.-Fort Worth 2007, pet. denied). Issue One is overruled.

NEW TRIAL

In her second issue, Armendariz argues that the trial court erred by denying her motion for new trial because she produced newly-discovered evidence sufficient to raise a genuine issue of material fact as to whether the “half-day” policy actually existed and whether Redcats adhered to established company policy when terminating her. We disagree.

Id. at 809–10.

*472 Contrary to Armendariz’s assertion, the newly-discovered evidence did not raise a genuine fact issue about Redcats’s purported failure to adhere to established company policy when terminating her. The newly-discovered evidence that Armendariz relied upon was an affidavit from a former Redcats’s employee stating that, when Armendariz was fired, there never was a “half-day” or “full-day” policy in effect. According to the affiant, the actual policy in place then was that an attendance infraction, whether based on absence or tardiness, was excused if supported by a physician’s statement. The obvious purpose of the affidavit is to impeach the testimony of Redcats’s personnel that Armendariz was discharged because she violated the company’s “half-day absence rule.” However, because the affidavit merely impeaches, it is not new evidence for purposes of a new trial and is insufficient to warrant a new trial. Ski River Dev., Inc. v. McCalla, 167 S.W.3d 121, 132 (Tex.App.-Waco 2005, pet. denied) (newly discovered evidence alleging that a witness committed perjury was cumulative, impeaching, and not grounds for a new trial).

Armendariz asserts that the affidavit “stands in stark contrast to the testimony of [the Redcats personnel]” and “went beyond mere impeachment” of their testimony. Evidence impeaching a witness that is so strong and convincing and has such probative force showing a state of facts differing from that to which the witness sought to be impeached testified may warrant a new trial. Jackson, 660 S.W.2d at 809.

We conclude that the trial court did not abuse its discretion by refusing to grant a new trial based on newly-discovered evidence. Armendariz’s second issue is overruled.

CONCLUSION

Having overruled both of Armendariz’s issues, we affirm the trial court’s orders granting summary judgment for Redcats, entering final judgment for Redcats, and denying Armendariz’s motion for new trial.

Footnotes

1

Armendariz concedes that she had a history of unsatisfactory attendance and, although unclear and confusing, the record supports her concession. There is evidence that by May 19, 2009, Armendariz had incurred the following unexcused attendance infractions since she had begun working for Redcats: (1) she was absent from work approximately eleven days and partially absent approximately six half days; (2) she was tardy to work on approximately eleven separate occasions; and (3) she left work early on approximately three separate occasions. There is also evidence that by then, she had received two verbal warnings and one written warning about her attendance. When Armendariz received her written warning, she was informed that any additional attendance infractions would result in a final written warning, and that her failure to improve could result in her termination.

Armendariz asserts that her attendance history before she was terminated on June 15, 2009 is immaterial and emphasizes that she stipulated to being on final notice that any additional unexcused attendance infractions would result in her termination. However, not only does Armendariz’s attendance history provide necessary context, it is relevant in determining whether Redcats discharged Armendariz based on the neutral application of its attendance policy. See Hernandez, 198 S.W.3d at 292–94 (reviewing employee’s entire attendance record in determining whether employer’s stated reason for firing employee was based on unsatisfactory attendance and not on a discriminatory reason).

2

We first review the trial court’s summary judgment under the no-evidence standard of review. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.2004).

3

Armendariz also relies on the “temporal proximity” between her injury and her discharge—approximately one month—as circumstantial evidence of a retaliatory motive behind her discharge. However, temporal proximity is not a Hernandez, 198 S.W.3d at 293–94.

4

As illogical and injudicious as it sounds, an ill Redcats employee would be better off being absent for a full day, rather than a partial day, because absence for the whole day attributable to illness would be excused, so long as supported by a physician’s statement, whereas tardiness or absence for a partial day, regardless of a physician’s statement, was unexcused. We do not address the efficacy of having such an “unwritten” policy or whether such a policy is constitutes a reasonable employment practice.

End of Document
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