COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-246-CV
CHRISTINE JACKSON APPELLANT
V.
FEDEX GROUND PACKAGE APPELLEE
SYSTEM, INC.
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FROM THE 17TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. INTRODUCTION
The trial court granted summary judgment for Appellee FedEx Ground
Package System, Inc. on Appellant Christine Jackson’s claim that she was
discharged in retaliation for filing a worker’s compensation claim. The primary
issue we address in this appeal is whether Jackson met her burden to present
1
… See T EX. R. A PP. P. 47.4.
summary judgment evidence raising a genuine issue of material fact on whether
FedEx’s stated reason for her termination—that she violated the company’s
written policy requiring an employee who sustained an on-the-job injury to
obtain a drug and alcohol screening test at the time of his or her initial medical
treatment—was pretextual or discriminatory. Because, even viewing all of the
summary judgment in the light most favorable to Jackson and engaging in all
reasonable inferences in her favor, no such controverting summary judgment
evidence exists, we will affirm.
II. F ACTUAL AND P ROCEDURAL B ACKGROUND
Jackson, who worked for FedEx, sustained a work-related injury on
Friday, September 16, 2005, when a five-gallon drum slid off the package slide
and injured her back. Later that day, Jackson told her coordinator, Kevin
Bedliner, that she was hurt; he referred Jackson to their supervisor, Eric
Fergerson. According to Jackson, Fergerson told her she did not need to go to
the doctor. He told her to take some ice packs that he provided and to go
home and rest. Fergerson did not give Jackson an authorization for medical
treatment form.
On Monday, September 19, 2005, Jackson went to FedEx and spoke
with Tyrol Lemon, an employee relation manager. Jackson told him that she
had injured her back the previous Friday and needed to seek medical treatment.
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Jackson told Lemon that she was going to K Clinic, and “[h]e didn’t say
anything.” Lemon gave Jackson an authorization for medical treatment and a
drug screening packet. Lemon also provided Jackson with a map and a list of
facilities that conducted drug screenings; some of the facilities listed were open
until 9:00 p.m. Jackson said that Lemon did not give her a time frame for
when she was to complete the drug screening test.
That afternoon, on Monday, September 19, Jackson sought medical
treatment from K Clinic. Jackson, however, did not complete the drug
screening test that day.
The next day, Jackson went to a facility and completed the drug
screening test. She then went back to FedEx and gave Lemon the completed
drug screening paperwork. That afternoon, Lemon called Jackson at home and
asked why she had gone to K Clinic. Jackson said that Lemon “sounded
upset.”
After receiving Jackson’s paperwork, Lemon consulted with two safety
managers to verify that Jackson’s decision to wait a day to take the drug
screening test—that is, to not submit to a drug screening test at the time of her
initial medical treatment—did, in fact, violate FedEx’s drug screening policy. 2
2
… FedEx’s post-injury drug screening policy states:
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Both safety managers indicated that Jackson’s refusal to submit to a drug
screening test concurrently with her initial medical treatment was a violation of
FedEx’s written post-injury drug screening policy. Lemon met with FedEx’s
senior manager of the Fort Worth hub to discuss Jackson’s violation, and they
made the decision to terminate her.
Jackson said that when Lemon terminated her, he told her that she was
being terminated for failing to take the drug test within twenty-four hours.
Because Jackson believed that she was terminated for seeking treatment from
K Clinic instead of the company doctor, she filed suit for wrongful discharge.
FedEx answered. More than a year later, FedEx filed a motion for
summary judgment. As one ground for summary judgment, FedEx argued that
it was entitled to judgment as a matter of law because it conclusively
established a legitimate, nondiscriminatory reason for Jackson’s
Any employee who sustains an on-the-job injury that requires
medical treatment will be required to have a post-injury drug and
alcohol screening. This screening must be administered at the time
of initial medical treatment, but should not preclude immediate
medical attention when warranted.
....
If an employee fails to cooperate, or refuses a post-injury
drug and alcohol screening for any reason, or if the screening
results are altered, substituted or tampered with in any way, the
employee will be terminated. [Emphasis added.]
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termination—Jackson’s violation of FedEx’s post-injury drug screening
policy—and because the burden then shifted back to Jackson to produce
summary judgment evidence of a retaliatory motive or that this reason was a
pretext for retaliation, a burden which Jackson could not and did not meet.
Approximately one month later (seven days before the scheduled
summary judgment hearing and eleven days before the trial setting requested
by Jackson), Jackson filed a motion for continuance along with her response
to FedEx’s motion for summary judgment. Jackson’s response to FedEx’s
summary judgment motion claimed that genuine issues of material fact existed
as to whether there was a causal connection between her workers’
compensation claim and her termination, as to whether FedEx had a retaliatory
motive for terminating her, and as to whether FedEx acted with malice in
terminating her.
FedEx filed a reply to Jackson’s response, arguing that Jackson had failed
to controvert FedEx’s legitimate, nondiscriminatory reason for her termination.
FedEx also objected to Jackson’s summary judgment evidence.
The trial court held a hearing on FedEx’s motion for summary judgment
and granted the motion. The trial court thereafter signed an order sustaining
FedEx’s objections to Jackson’s summary judgment evidence. This appeal
followed.
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III. M OTION FOR C ONTINUANCE
In her first issue, Jackson contends that the trial court abused its
discretion by denying her request for a continuance. The basis for the
continuance sought by Jackson on March 29, 2007, was that she needed
additional time to contact ex-FedEx employees contained on a list provided to
her by FedEx on October 11, 2006.
Generally, a party moving for a continuance of a summary judgment
hearing must obtain a ruling on its motion to preserve a complaint for appellate
review. See T EX. R. A PP. P. 33.1; Rangel v. State Bar of Tex., 898 S.W.2d 1,
3 (Tex. App.—San Antonio 1995, no writ). A party may preserve error even
in the absence of a ruling on a motion for continuance if the party objects to the
trial court’s refusal to rule. See T EX . R. A PP. P. 33.1(a)(2)(B); Sw. Country
Enters., Inc. v. Lucky Lady Oil Co., 991 S.W.2d 490, 493 (Tex. App.—Fort
Worth 1999, pet. denied).
Here, Jackson did not obtain a ruling on her motion for continuance and
also failed to request that the hearing on her motion for continuance be
recorded. Absent a record of the continuance hearing, there is no indication
that Jackson objected to the trial court’s failure to rule on her motion for
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continuance. Consequently, Jackson waived any error concerning the trial
court’s failure to grant a continuance of the summary judgment hearing. See
Hornsby v. Alter’s Gem Jewelry, Ltd., No. 09-04-00542-CV, 2005 WL
3073790, at *3 (Tex. App.—Beaumont Nov. 17, 2005, pet. denied) (mem.
op.). For all these reasons, we overrule Jackson’s first issue.
IV. J ACKSON’S S UMMARY J UDGMENT E VIDENCE
In her second issue, Jackson claims that the trial court erred by sustaining
FedEx’s objections to her summary judgment evidence. In her appellate brief,
however, Jackson does not articulate how each of the trial court’s rulings on
FedEx’s objections to her summary judgment evidence are purportedly
erroneous. Instead, she simply globally claims that she “disagrees with all of
the bases alleged by FedEx for its objections” and “contends that the objections
to the deposition testimony of Jackson and her sister are particularly weak.”
Thus, Jackson has waived her complaint that the trial court erred by sustaining
FedEx’s objections to her summary judgment evidence. See, e.g., Cantu v.
Horany, 195 S.W.3d 867, 871 (Tex. App.—Dallas 2006, no pet.) (stating that
appellant waives challenge to evidentiary ruling unless he challenges all possible
grounds for trial court’s ruling sustaining objection).
Nonetheless, for purposes of this appeal, we assume that the trial court
should have considered all of Jackson’s summary judgment evidence; even
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considering all of her evidence and viewing all of the evidence in the light most
favorable to Jackson, as explained below, no evidence exists creating a genuine
issue of material fact that FedEx’s enforcement of its written post-injury drug
screening policy was pretextual or retaliatory. Because Jackson has waived her
second issue complaining that the trial court erred by sustaining FedEx’s
objections to her summary judgment evidence and because we nonetheless
consider all of Jackson’s summary judgment evidence in our analysis, we
overrule her second issue.
V. S UMMARY J UDGMENT W AS P ROPER
In her third issue, Jackson contends that the trial court erred by granting
FedEx’s motion for summary judgment.
A. Standard of Review
A defendant who conclusively negates at least one essential element of
a cause of action is entitled to summary judgment on that claim. IHS Cedars
Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W .3d 794, 798 (Tex.
2004); see T EX. R. C IV. P. 166a(b), (c). When reviewing a summary judgment,
we take as true all evidence favorable to the nonmovant, and we indulge every
reasonable inference and resolve any doubts in the nonmovant’s favor. IHS
Cedars Treatment Ctr., 143 S.W.3d at 798.
B. Law Applicable to Retaliatory Discharge Claims
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Section 451.001 of the Texas Labor Code prohibits an employer from
discharging an employee for filing a workers’ compensation claim in good faith.
T EX. L ABOR C ODE A NN. § 451.001 (Vernon 2006). The employee has the initial
burden of demonstrating a causal link between the discharge and the filing of
a workers’ compensation claim. Benners v. Blanks Color Imaging, Inc., 133
S.W.3d 364, 369 (Tex. App.—Dallas 2004, no pet.). The employee must show
that the employer’s action would not have occurred when it did had the
employee’s protected conduct—filing a workers’ compensation claim—not
occurred. Haggar Clothing Co. v. Hernandez, 164 S.W.3d 386, 388 (Tex.
2005); see Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.
1996).
Once the employee establishes a causal link, the employer bears the
burden to rebut the alleged improper termination by showing that a legitimate
reason exists for termination. See Cont’l Coffee Prods. Co., 937 S.W.2d at
450–51. Thereafter, to survive a motion for summary judgment, the burden
shifts back to the employee to produce controverting evidence raising a fact
issue as to a retaliatory motive or nonuniform enforcement of a termination
policy. Id. at 444; McIntyre v. Lockheed Corp., 970 S.W.2d 695, 697 (Tex.
App.—Fort Worth 1998, no pet.).
C. Analysis
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For purposes of our analysis, we will assume that Jackson met her initial
burden of demonstrating a causal link between the discharge and the filing of
a workers’ compensation claim. 3 See, e.g., Benners, 133 S.W.3d at 369.
Consequently, we next examine whether FedEx met its burden to rebut the
alleged improper termination by showing that a legitimate reason existed for
termination. See Cont’l Coffee Prods. Co., 937 S.W.2d at 450-51.
FedEx’s summary judgment evidence establishes that it had a written
post-injury drug screening policy in effect, that the policy required an employee
who sustained an on-the-job injury that required medical treatment to obtain a
drug screening test at the time of the employee’s initial medical treatment, and
that the refusal to comply with the policy would result in termination. FedEx’s
summary judgment evidence showed that Jackson was made aware of this
policy in June 2005 and signed a safety meeting sheet indicating her awareness
of the policy. FedEx also produced summary judgment evidence establishing
that its policies, including its post-injury drug screening policy, were posted on
a website created specifically for package handlers like Jackson and that
3
… Consequently, we do not discuss Jackson’s causal links summary
judgment evidence except to the extent that it overlaps with our subsequent
discussion below concerning whether Jackson met her burden to produce
controverting evidence raising a fact issue as to a retaliatory motive or
nonuniform enforcement of FedEx’s post-injury drug screening policy.
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computers were provided at FedEx’s Fort Worth facility so that package
handlers like Jackson could freely access the policies. The summary judgment
evidence conclusively establishes, and indeed Jackson agrees, that she did not
submit to a post-injury drug screening test at the time she received her initial
medical treatment for her injury.
An employer who terminates an employee for violating a written company
policy or rule cannot be liable for retaliatory discharge as long as the rule is
uniformly enforced. See, e.g., Haggar Clothing Co., 164 S.W.3d at 388
(dealing with enforcement of one-year leave-of-absence policy); Cont’l Coffee
Prods. Co., 937 S.W.2d at 444 (dealing with enforcement of three-day rule
governing employee absences); Santillan v. Wal-Mart, 203 S.W.3d 502, 506
(Tex. App.—El Paso 2006, pet. denied) (dealing with enforcement of
requirement that employment authorization documents be timely renewed).
Thus, in light of FedEx’s summary judgment evidence conclusively establishing
that Jackson’s termination decision was based on her failure to comply with its
written post-injury drug screening policy, the burden shifted back to Jackson
to produce controverting evidence raising a fact issue as to a retaliatory motive
or nonuniform enforcement of FedEx’s post-injury drug screening policy. See
Haggar Clothing Co., 164 S.W.3d at 388; Cont’l Coffee Prods. Co., 937
S.W.2d at 444, 450–51; Santillan, 203 S.W.3d at 506.
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In an effort to discharge this burden, Jackson first points out that when
FedEx terminated her, it knew she was pursing a workers’ compensation claim.
The fact that a manager has some knowledge that an employee has filed a
workers’ compensation claim does not, by itself, raise a genuine issue of
material fact. See Santillan, 203 S.W.3d at 507.
Jackson next claims that she produced summary judgment evidence that
FedEx’s stated reason for discharge was false and that FedEx had exhibited a
pattern of discrimination toward employees who filed workers’ compensation
claims. Jackson points to multiple employee lists attached to her summary
judgment response. The problem with these employee lists, however, is that
they do not reflect the specific reason for each termination.4 No affidavit exists
in the summary judgment record explaining these lists, how they were
generated, or how they purportedly show a pattern of nonuniform enforcement
of FedEx’s post-injury drug screening policy. To the contrary, FedEx proffered
summary judgment evidence that only two people—one of whom was
Jackson—had failed to comply with the drug policy and that both had been
terminated. Thus, Jackson’s summary judgment evidence does not raise a
4
… For instance, the code given for Jackson’s termination was “Violation
of Rules.” The employee list contains this same code for approximately ten
employees.
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genuine issue of material fact on whether FedEx did not uniformly enforce its
post-injury drug screening policy.
Jackson also argues that FedEx’s stated reason for her termination was
false because Lemon told her that she was being terminated for failing to take
the drug test within twenty-four hours even though FedEx’s drug policy requires
a post-injury drug screening test be conducted at the time of initial medical
treatment, not within twenty-four hours. Jackson claims she did take the drug
test within twenty-four hours of being told to do so; consequently, FedEx’s
reason for termination is false.
The fact that Jackson took the drug test within twenty-four hours of
when she was told to take it does not make FedEx’s stated reason for her
discharge false. Jackson admitted that she did not complete the drug screening
until the day after she went to K Clinic for her initial medical treatment.
Jackson’s admission shows that she failed to comply with FedEx’s policy on
post-injury drug screening, a policy that she was deemed to have knowledge
of by virtue of her attendance at the safety meeting that covered the drug
policy. Thus, Jackson has failed to meet her summary judgment burden to raise
a genuine issue of material fact as to whether FedEx’s stated reason for her
discharge was false. See id. at 507–08 (holding that employer’s reason for
termination was not false when it initially told employee that she was being
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terminated for failing to provide necessary employment documents in a timely
manner and later reported on employee’s unemployment benefits claim that
employee had been terminated for “misconduct”; employee failed to show that
her “misconduct” was anything other than her failure to file the necessary
employment documents).
We hold that Jackson failed to produce controverting evidence raising a
fact issue as to FedEx’s retaliatory motive or nonuniform enforcement its post-
injury drug screening policy. See Haggar Clothing Co., 164 S.W.3d at 388;
Cont’l Coffee Prods. Co., 937 S.W.2d at 444, 450–51; Santillan, 203 S.W.3d
at 506; see also Jordan v. BAE Automated Sys., No. 05-96-01488-CV, 1998
WL 242413, at *2 (Tex. App.—Dallas May 15, 1998, no pet.) (not designated
for publication) (upholding summary judgment because appellant admitted in
deposition that he was discharged for taking a pain pill without a prescription
in violation of company’s drug policy). Accordingly, we overrule Jackson’s
third issue.
VI. C ONCLUSION
Having overruled Jackson’s three issues, we affirm the trial court’s grant
of summary judgment in favor of FedEx.
SUE WALKER
JUSTICE
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PANEL A: CAYCE, C.J.; HOLMAN and WALKER, JJ.
DELIVERED: April 24, 2008
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