Opinion issued March 27, 2003
In The
Court of Appeals
For The
First District of Texas
NO. 01-02-00024-CV
BRENT M. MILLER, Appellant
V.
STOLTHAVEN HOUSTON, INC., Appellee
On Appeal from the 113th District Court
Harris County, Texas
Trial Court Cause No. 2000-28766
MEMORANDUM OPINION
Brent M. Miller, appellant, sued appellee, Stolthaven Houston, Inc., claiming (1) age discrimination under Title VII of the Civil Rights Act; (2) unlawful retaliation under 42 U.S.C. § 2000e-3, and section 21.055 of the Texas Labor Code; (3) intentional infliction of emotional distress; and (4) unlawful retaliation under section 451.001 of the Texas Labor Code. Appellee removed the case to the United States District Court for the Southern District of Texas. The federal district court granted summary judgment for appellee on appellant’s claims and remanded appellant’s “claim for retaliatory termination of employment” under section 451.001 of the Texas Labor Code. Tex. Lab. Code Ann. § 451.001 (Vernon 1996). On October 9, 2001, the trial court granted summary judgment for appellee on appellant’s remaining claim of unlawful retaliation.
Appellant appeals from the grant of summary judgment against him, and, in a single point of error, argues that the trial court erred in granting summary judgment because there still existed genuine issues of material fact as to whether appellant was terminated for unlawful retaliation.
We affirm.
Facts
Appellant began his employment with appellee in 1995. In 1998, appellant was promoted to the position of day gauger and was supervised by Thomas Paul. David Coiley, the terminal manager, supervised Paul. On June 15, 1998, appellant received his first written disciplinary report regarding his use of the time clock. The disciplinary report stated the following:
On several occasions [appellant] has written in start times on his time card that did not reflect actual times of beginning his shift and did not have his time card initialed by a supervisor. His later arrival times into the facility which have been verified by the security computer to the times he has written in vary significantly.
Appellant signed the report and wrote on it that, “this will never happen again . . . I am sorry for being a problem!”
On March 16, 1999, appellant was injured while working and was diagnosed as having a hernia. Appellant reported his injuries to appellee the same day that they occurred. The following day, appellant received his second written disciplinary report. The report stated that appellant had failed to report a broken “Chevron O2 Meter.” Appellant did not sign this second report and checked the box on the report that indicated he disagreed with the report. Appellant wrote a handwritten statement, in which he claimed that he was not at fault for failing to report the broken meter and that the terminal manager, Coiley, was discriminating against him. Appellant did not state why he believed Coiley was discriminating against him.
Following appellant’s injury, he took a leave of absence for approximately six to eight weeks. Thereafter, appellant returned to work and performed light duty assignments for a few weeks before returning to full duty. Appellant stated in his deposition that, after returning to work, he was subjected to derogatory and intimidating remarks by Coiley. Appellant testified that Coiley, in mentioning his previous experience as a captain of a ship, stated that Filipinos who developed hernias were thrown over the side of the ship. Appellant also claimed that, while on light duty, Coiley told him that he was going to become a “lazy bastard.” Appellant further testified that Coiley directed profanity at him on other occasions. Coiley testified in his own deposition that he was previously the captain of a ship that had Filipinos on it, but that he could not recall telling appellant that Filipinos with hernias were thrown over the side. Coiley also testified that he did use profanity at work, but that he could not remember ever directing profanity at appellant.
On September 21, 1999, Appellant received his third written disciplinary report. The report was prepared and signed by Paul and stated that appellant had failed to report a steam leak on a utility line located in his work area. Appellant signed the report, but checked the box to indicate that he disagreed with his supervisor’s assessment. In a follow-up statement, appellant claimed that the leak was in an area where he never had reason to go, and that Coiley had falsely accused him of failing to report it. Appellant did not discuss his injury or his worker’s compensation claim in the follow-up report. In a letter discussing the incident, written by Paul to the EEOC division of the Texas Workforce Commission, Paul stated that, “like [appellant] I feel David Corley [sic] was looking for a reason to get rid of [appellant] because [appellant] had caught [Coiley] in some lies (steam leak and Chevron meter).” Appellant testified in his deposition that he agreed with the letter written by Paul and that he had in fact told Paul he thought Coiley wanted to get rid of him because he had caught Coiley in some lies.
On December 29, 1999, appellant received his fourth written disciplinary report. The report stated the following:
[Appellant] you have been observed over a period of time consistently clocking in and out while dressed in your street clothes. It clearly states in the Non-Union Hourly Employee Manual Section 3-2, Paragraph 1(c) that this is not the correct procedure.
The report went on to inform appellant that because he had been caught “milking” the clock for the second time, he would be terminated. Appellant then filed suit.
Standard of Review
The standards for reviewing a motion for summary judgment are as follows: (1) the movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true; and (3) every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in the nonmovant’s favor. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). A defendant is entitled to summary judgment if at least one element of each of the plaintiff’s causes of action is negated as a matter of law. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 476-77 (Tex. 1995). A defendant may also prevail on a motion for summary judgment by conclusively proving all elements of an affirmative defense as a matter of law, such that there is no genuine issue of material fact. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995) (per curiam).
A no-evidence motion for summary judgment is proper when there is complete absence of evidence of a vital fact, or the evidence offered to prove a vital fact is no more than a scintilla, or the evidence conclusively establishes the opposite of the vital fact. Merrell Dow Pharmacy, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).
Discussion
In his sole point of error, appellant argues that the trial court erred in granting summary judgment for appellee because there still existed genuine issues of material fact as to whether appellant was terminated for filing a worker’s compensation claim. Appellant also contends that summary judgment was granted in error because appellee’s motion for summary judgment only addressed appellant’s termination claim, and not appellant’s separate claim of discrimination.
Claims under Section 451.001
As an initial matter, we will discuss appellant’s contention that appellee only addressed appellant’s claim for retaliatory termination, and did not address appellant’s separate claim of discrimination. Appellee argues that appellant pled a single claim under section 451.001, and that claim was for retaliatory termination. Appellee also contends that, even if more than one claim was pled, the federal district court remanded only the claim of retaliatory termination to the trial court. We agree with appellee. Our review of the record indicates that the parties and courts treated appellant’s entire action under section 451.001 as a single claim. The federal district court’s order stated that, “this Court SEVERS the claim for retaliatory termination . . . and REMANDS that claim to the 113th District Court . . . .” (emphasis added). Further, appellant’s own pleadings treat his action under 451.001 as a single claim. Appellant’s pleadings state that, “Plaintiff accordingly asserts a claim against defendant pursuant to the provisions of Tex. Labor Code § 451.001 . . . .” (emphasis added). Accordingly, in holding that appellee’s motion for summary judgment was sufficient in treating appellant’s action under section 451.001 as a single claim, we next determine if there was a genuine issue of material fact as to whether appellee discriminated against appellant because he filed a worker’s compensation claim.
Overview of Section 451.001 Burden-Shifting
Section 451.001 of the Texas Labor Code is a statutory exception to the Texas common law doctrine of employment-at-will. Terry v. S. Floral Co., 927 S.W.2d 254, 256 (Tex. App.—Houston [1st Dist.] 1996, no writ). The statute provides:
A person may not discharge or in any other manner discriminate against an employee because the employee has: (1) filed a worker’s compensation claim in good faith; (2) hired a lawyer to represent the employee in the claim; (3) instituted or caused to be instituted in a good faith proceeding under Subtitle A; or (4) testified or is about to testify in a proceeding under Subtitle A.
Tex. Lab. Code Ann. § 451.001.
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, 927 S.W.2d at 257. The causal link must establish only that the termination would not have occurred when it did if the employee had not filed the worker’s compensation claim. Continental Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996).
To prove the causal connection, direct or circumstantial evidence may be used. Jenkins v. Guardian Indus. Corp., 16 S.W.3d 431, 441 (Tex. App.—Waco 2000, pet. denied). Circumstantial evidence can include: (1) knowledge of the compensation claim by those making the decision on termination; (2) expression of a negative attitude towards 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. Id. at 435; Palmer v. Miller Brewing Co., 852 S.W.2d 57, 61 (Tex. App.—Fort Worth 1993, writ denied); 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. Terry, 927 S.W.2d at 257. If the employer shows a legitimate, non-discriminatory reason for the termination, the burden shifts back to the employee to produce controverting evidence of a retaliatory motive. See Texas Division-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 314 (Tex. 1994). If the employee cannot produce controverting evidence of a retaliatory motive, summary judgment against the employee is proper. Id.
Evidence of a Causal Link
In determining if there was evidence of a causal link between appellant’s termination and his filing of a worker’s compensation claim, we will review the circumstances outlined in Jenkins to aid in our analysis of whether appellant showed a causal link between the filing of his worker’s compensation claim and his termination. See 16 S.W.3d at 441.
One indicator of a causal link is whether there was knowledge of the compensation claim by those making the decision on termination. It was Coiley who made the decision to terminate appellant. Coiley is deemed to have been aware of appellant’s worker’s compensation claim if he knew of appellant’s on-the-job injury. Housing Auth v. Guerra, 963, S.W.2d 946, 950 (Tex. App.—El Paso 1998, pet. denied). It is undisputed that Coiley knew of appellant’s occupational injury and that appellant was absent from work because of the injury. Accordingly, Coiley’s knowledge of appellant’s injury and accident is an indicator of a causal link between appellant’s termination and his filing of a worker’s compensation claim.
Another circumstance is whether there was an expression of a negative attitude towards the employee’s injured condition. Appellant testified that, after returning to work, Coiley had told him that Filipinos who developed hernias were thrown over the side of the ship. Appellant’s supervisor, Paul, testified in his deposition that derogatory comments were also made by Coiley towards other workers who had been injured. Because appellant and Paul have testified as to statements by Coiley that indicate a negative attitude towards appellant’s injured condition, we hold that this is also an indicator of a causal link between appellant’s worker’s compensation claim and his termination.
The fourth and fifth circumstances outlined in Jenkins, whether the reason given for termination was false, and whether other similarly situated employees were treated differently, were also used by appellant to show that he was terminated for filing a worker’s compensation claim. Appellant contends that he did not violate company policy by clocking in and out of work in his street clothes, and that other workers who also clocked in and out in their street clothes were not punished for their actions. The employee manual states that, “The employee shall not clock in until they are dressed and ready to begin work and shall clock out at the end of their work day prior to showering and/or changing.” Appellant testified in his deposition that, because his job duties at the beginning and end of the day involve work at his computer, he was not required to wear his fire-retardant uniform, and was, therefore, not in violation of the company policy. Appellant also testified that he had seen other employees clocking in and out dressed their street clothes. In Paul’s deposition, Paul testified that he also witnessed employees clocking in and out while dressed in their street clothes, and that managers had seen them do it. We hold that this is also evidence indicating a causal link between appellant’s termination and his filing of a worker’s compensation claim.
Appellant also presented evidence that two-thirds of employees who initiated worker’s compensation claims seeking indemnity benefits between 1997 and 2001 were also terminated within that same time frame. Our review of the record indicates that six employees sought indemnity benefits and four of those were terminated, but overall, 44 employees filed worker’s compensation claims, and only four of those were later terminated. Appellant has not explained why we should look only at employees who sought indemnity benefits, and appellant has also failed to show what the termination rate is for employees who did not file worker’s compensation claims. Without that information, we cannot determine that appellant’s statistical data indicates a causal link between appellant’s termination and his filing of a worker’s compensation claim.
After reviewing appellant’s summary judgment evidence, we conclude that, even without consideration of appellant’s statistical data, appellant has presented some circumstantial evidence establishing a prima facie case of retaliatory termination. Coiley’s knowledge of appellant’s injury, testimony of Coiley’s negative attitude towards appellant’s injured condition, and some evidence of disparate treatment and of potential fabrication of the reason for appellant’s termination, establish a causal link between appellant’s termination and the appellant’s filing of a worker’s compensation claim. Accordingly, we will now determine if appellee provided a legitimate reason for appellant’s termination that is unrelated to appellant’s filing of a worker’s compensation claim. See Terry, 927 S.W.2d at 257.
Legitimate Reason for Termination
Appellee argues that the evidence shows that appellant was fired for reasons other than appellant’s filing of a worker’s compensation claim. Appellee contends that appellant was terminated for violating company policy, and, if there was any discrimination that appellant suffered from Coiley, it stemmed from a personal dispute between the two of them, and was not related to appellant’s filing of a worker’s compensation claim.
At Coiley’s deposition, he testified that appellant was terminated for “milking” the clock, and that appellant was the only employee that he had seen violating the clock policy. Further, at appellant’s deposition, appellant answered “yes” to the appellee’s question of if, “after having read [the company policy], would you conclude that clocking-in in your street clothes was against company policy?”
In support of appellee’s claim that appellant and Coiley had a personal dispute, appellee produced a letter written by Paul to the Texas Workforce Commission that stated that, “like [appellant] I feel David Corley [sic] was looking for a reason to get rid of [appellant] because [appellant] had caught [Coiley] in some lies (steam leak and Chevron meter).” At appellant’s deposition, appellant agreed with the substance of the letter. The dialogue was as follows:
Q:You agree with what was stated in the letter?
A:Yes.
. . . .
Q:Did you indicate to [Paul] that you had thought that [Coiley] wanted to get rid of you because he was trying to cover up these two incidents?
A:Yes.
. . . .
Q:We have the letter here. It says “Like [appellant] I feel,” and it states this reason. In your opinion does that capture your feeling of the matter?
Attorney:Objection. Vague and ambiguous.
A:Yeah. I think it’s clear.
After reviewing the summary judgment evidence, we hold that appellee provided evidence that appellant’s termination was not related to appellant’s filing of a worker’s compensation claim. Appellant had already received a disciplinary report for “milking” the clock before he was injured, and Coiley provided testimony that appellant was terminated because he had “milked” the clock for the second time, and that he had not disciplined others for violating the clock policy because he was not aware of any other violations. Appellee’s evidence of appellant’s testimony that Coiley “got rid of him” because he had caught Coiley in some lies is also evidence that appellant was fired for reasons other than his filing of a worker’s compensation claim. Having determined that appellee provided evidence that appellant was terminated for reasons other than his filing of a worker’s compensation claim, we now determine whether summary judgment was properly granted.
Propriety of Summary Judgment
When the employer provides evidence of a legitimate reason for the employee’s termination, summary judgment is appropriate for the employer unless the employee produces evidence of a retaliatory motive. Terry, 927 S.W.2d at 257. In this case, while appellant testified that Coiley had told him that Filipinos with hernias were thrown off of his ship, appellant has established, through his own testimony at his deposition, that the “discrimination,” suffered by appellant at the hands of Coiley resulted from a dispute not related to appellant’s filing of a worker’s compensation claim. Appellee asked appellant in appellant’s deposition if Paul’s letter captured appellant’s “feeling of the matter.” Paul’s letter had stated that he thought Coiley was looking for a reason to fire appellant because appellant had caught him in some lies. Appellant responded to the question by saying, “Yeah. I think it’s clear.” We do not pass judgment on whether Coiley’s conduct was immoral or otherwise unlawful, but we hold that, because appellant unambiguously testified that Coiley’s discrimination against him resulted from a dispute between the two of them not related to appellant’s filing of worker’s compensation claim, Coiley’s conduct did not constitute unlawful retaliation under section 451.001. Accordingly, we hold that the trial court did not err in granting summary judgment for appellee.
We overrule appellant’s sole point of error.
Conclusion
We affirm the trial court’s judgment.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Nuchia and Hanks.