Opinion issued December 12, 2002
In The
Court of Appeals
For The
First District of Texas
NO. 01-02-00675-CV
____________
ETHEL MAE PAGE, Appellant
V.
FORT BEND INDEPENDENT SCHOOL DISTRICT, Appellee
On Appeal from the 240th District Court
Fort Bend County, Texas
Trial Court Cause No. 01CV118977
O P I N I O NAppellant, Ethel Mae Page, challenges the trial court’s summary judgment in favor of appellee, Fort Bend Independent School District (FBISD), on her Texas Worker’s Compensation Act claims. In three related points of error, Page contends the trial court erred in granting summary judgment by determining that: (1) Page failed to establish a causal connection between her discharge and her worker’s compensation claim, (2) FBISD had a legitimate reason for discharging Page, and (3) Page failed to produce any evidence of a controverting retaliatory motive. We affirm.
Facts and Procedural Background
On September 18, 1998, Page, a FBISD cafeteria worker, slipped on a french fry and injured her back while working in the Highlands Elementary School cafeteria. Page reported the injury to the FBISD and to the Texas Worker’s Compensation Commission, and she received worker’s compensation benefits. After consulting with her physician, Page was cleared to continue work with restrictions on October 6, 1998. However, on October 13, 1998, Page applied for leave under the Family Medical Leave Act. FBISD, on November 19, 1998, granted Page medical leave and informed her that “use of all leave” was to run “concurrently.” Page then returned to work from December 7 to December 10, 1998, before her doctor excused her again from work. Page made a final effort to work under restricted duty status on January 5, 1999, but on January 13, 1999, she again went on leave and never returned to work.
Page’s medical leave expired in February 1999, and FBISD, in a letter dated March 11, 1999, notified Page that her continuing leave of absence was classified as “Temporary Disability Leave.” Additionally, the letter stated that FBISD required use of temporary disability leave to run “concurrently” with family medical leave and that the maximum length of leave was “180 calendar days.” On May 21, 1999, FBISD informed Page, by letter, that it was terminating her employment “due to exhausted leave absence.”
Standard of Review
The issue on appeal of a summary judgment is whether the movant met its summary judgment burden by establishing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Calvillo v. Gonzalez, 922 S.W.2d 928, 929 (Tex. 1996). The burden of proof is on the movant, and all doubts about the existence of a genuine issue of material fact are resolved against the movant. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999). When a movant has shown that it is entitled to summary judgment, the nonmovant must come forward with evidence or law that precludes the summary judgment. Star-Telegram, Inc. d/b/a Fort Worth Star-Telegram v. Doe, 915 S.W.2d 471, 474 (Tex. 1995).
Retaliatory Discharge
Page claims that the trial court erred in granting summary judgment because she established, under section 451.001 of the Labor Code, that FBISD retaliated against her for filing her worker’s compensation claim. See Tex. Lab. Code Ann. § 451.001. To establish a retaliatory discharge claim under section 451.001, an employee must prove that “but for” her filing of a worker’s compensation claim, the discharge would not have occurred when it did. Trico Techs. Corp. v. Montiel, 949 S.W.2d 308, 312 (Tex. 1997).
An employee asserting a violation of section 451.001 has the initial burden of demonstrating a causal link between the discharge and the filing of the claim for worker’s compensation benefits. Terry v. S. Floral Co., 927 S.W.2d 254, 257 (Tex. App.—Houston [1st Dist.] 1996, no writ). An employer is entitled to summary judgment in a section 451.001 retaliatory discharge action when the employer asserts a legitimate, nondiscriminatory reason for the discharge, and the employee does not produce evidence of a retaliatory motive. Tex. Division-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 313 (Tex. 1994) (per curiam). The Texas Supreme Court has held that an employer who terminates an employee for violating a reasonable absence-control policy, as a nondiscriminatory reason for discharge, cannot be held liable for retaliatory discharge as long as the policy is uniformly enforced. See Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 451 (Tex. 1996); see also Terry, 927 S.W.2d at 256 (holding that even where there is no specific absence-control policy, excessive absences may be legitimate, non-discriminatory reason for termination). Thus, if FBISD enforced its absence-control policy uniformly and Page violated it, then Page’s section 451.001 action would fail as a matter of law. See Cazarez, 937 S.W.2d at 451. An employee may controvert the absence-control policy with evidence of facts and circumstances belying the employer’s neutral explanation and thereby raise a material issue of fact. Carrozza, 876 S.W.2d at 313.
Here, FBISD’s summary judgment evidence included affidavits of supervisory and administrative personnel, stating that Page was terminated solely because she violated FBISD’s180-day absence policy. Page challenges the reasonableness of the policy by arguing that only “work days” should be counted toward the 180-day limitation. However, FBISD’s temporary leave of absence-control policy expressly states that the “maximum length of Temporary Disability Leave is 180 calendar days.” (emphasis added). The policy also expressly states that all leave will run “concurrently.” Thus, Page’s medical leave and her temporary disability leave began on October 13, 1998 and continued until May 17, 1999. Upon her termination on May 21, 1999, Page had exhausted her available leave of 180 calendar days.
Page further contends that a retaliatory motive can be found in the summary judgment evidence. She asserts that FBISD’s labeling her as a “substitute cafeteria worker” in certain documents proves that her job status as a regular employee was downgraded as a result of retaliation. However, the record reveals that Page has mischaracterized the documents upon which she relies. One document, containing the “substitute” description, is a FBISD form used to request a new “substitute” employee to fill Page’s position while Page was on leave.
Additionally, Page contends that FBISD “expressed a negative attitude” toward her impaired condition. She claims that FBISD did not honor the light-duty restrictions placed upon her by her physician, that FBISD’s human resource department refused to accept faxes describing her medical condition, and that FBISD employees were “rude” and “intolerant” toward her. However, the Texas Supreme Court has held that “an employee’s subjective beliefs are no more than conclusions and do not raise a fact issue precluding summary judgment in a retaliatory discharge action under the Worker’s Compensation Law.” Cazarez, 937 S.W.2d at 452 (quoting Carrozza, 876 S.W.2d at 314). Page’s contentions are based solely on her subjective beliefs and do not raise an issue of material fact as to whether her termination was a retaliatory discharge. In addition, Page offered no summary judgment evidence that FBISD’s absence policy was not applied uniformly.
We conclude there is no summary judgment evidence that FBISD’s absence-control policy was unreasonable or that it was not applied uniformly. Page offered no evidence, either circumstantial or direct, to call into question FBISD’s explanation that Page’s termination was due solely to the fact that she exhausted all leave time available to her. Therefore, we hold the trial court did not err in finding that FBISD established its right to judgment as a matter of law based on FBISD’s uniform enforcement of a reasonable absence-control policy. Accordingly, we overrule Page’s three points of error.
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice
Panel consists of Justices Nuchia, Jennings, and Radack.
Do not publish. Tex. R. App. P. 47.