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Affirmed and Memorandum Opinion filed = December 11,=20 2007.

 

 

In The

 

Fourteenth=20 Court of Appeals

_______________

 

NO. 14-06-00195-CV

_______________

 

MITZIE COSTELLO, = Appellant

 

V.

 

BANK OF AMERICA, N.A., = Appellee

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On Appeal from the = 129th District=20 Court

Harris County,=20 Texas

Trial Court Cause No.=20 03-36328

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M E M O R A N D = U=20 M   O P I N I O N

This is an=20 appeal from a summary judgment denying Mitzie Costello=3Ds claims=20 based on retaliatory discharge for filing a workers=3D = compensation claim.  Bank of America, N.A. terminated=20 Costello=3Ds=20 employment on the basis that she violated the Bank=3Ds policy=20 against submitting inaccurate time sheets.  Costello contends = the=20 Bank fired her in retaliation for filing a workers=3D = compensation claim.  Costello appeals the summary judgment = claiming=20 she raised fact issues as to whether she established a causal link = between=20 her termination and her workers=3D = compensation claim.  We affirm.

I. =20 Summary Judgment Evidence

The Bank=20 submitted affidavits from Tiffany Glende, a Banking Center Service = Manager=20 and Frederick Buckner, the Bank=3Ds Regional=20 Manager.  The Bank also attached   = Costello=3Ds=20 deposition and the deposition of Tania Brugger, = Costello=3Ds=20 immediate supervisor. Copies of Costello=3Ds time=20 sheets, written warnings regarding inaccuracies in her time = sheets, =20 the workers=3D = compensation file, and a transcript of the hearing before the = Texas=20 Workforce Commission were also included with the Bank=3Ds motion=20 for summary judgment.  In response, Costello submitted her=20 affidavit.  Accordingly, the parties presented the following = summary=20 judgment evidence.

On April=20 4, 2002, Costello worked as a personal banker in a branch of the = Bank.=20 Costello=3Ds=20 supervisor, Tania Brugger, asked her to move some plants inside = the bank=20 building.  While moving the plants, Costello injured her back = and=20 neck.  Costello continued to work until May 9, 2002, when a = physician=20 advised her not to return to work until further notice. =20 However,  Costello returned to work because she wanted to = finish=20 several projects.  She claimed to have endured mistreatment = from her=20 fellow employees and Brugger after returning to work.  When = Costello=20 reported the alleged mistreatment to the Bank=3Ds=20 personnel center, another employee advised her to file a=20 workers=3D = compensation claim.

On May 15,=20 2002, Costello received a written warning regarding attendance and = inaccurate time sheet reporting.  At that time, she was = placed on=20 notice, pursuant to Bank policy, that her job would be in jeopardy = if her=20 attendance and time sheet accuracy did not improve.  On May = 21, 2002,=20 Costello stopped working because of her injury.  She returned = to work=20 September 23, 2002.  Costello=3Ds=20 physician specified that she should not work more than eight hours = per=20 day.  He also required Costello to remain off work on = Wednesdays and=20 Saturdays in order to attend physical therapy appointments. =20 Costello=3Ds hours=20 were changed to accommodate the doctor=3Ds=20 orders.  On September 27 and September 30, Costello was = verbally=20 counseled for inappropriate behavior and time management.  On = September 26, 2002, Brugger sent Costello home early so that = Costello=20 could attend a meeting scheduled for 6:30 that evening without = exceeding=20 eight working hours for the day.  The meeting ended at 7:30, = and all=20 employees left by 7:45.  Brugger and Tiffany Glende stayed a = few=20 minutes later, but left at 8:13 at which time they set the=20 Bank=3Ds=20 alarm.  When Costello submitted her time sheet for September = 26,=20 2002, the record indicated that she had worked until 8:45 = p.m.  After=20 Glende checked with the alarm company, she informed Brugger that = Costello=20 had inaccurately reported her time.  Brugger was leaving on = vacation=20 that day, so she instructed Glende to call Frederick Buckner, the = Regional=20 Manager, and the Bank=3Ds=20 Personnel Center to determine how to handle Costello=3Ds time=20 sheet inaccuracy.

Pursuant=20 to Bank policy, Glende called Buckner and explained that the Bank = had=20 previously counseled Costello regarding inaccurate time = entries. =20 Buckner recommended that Glende confer with the personnel center = before=20 making a final decision to discharge Costello.  According to=20 Glende=3Ds=20 affidavit, Atime sheet=20 abuse is not tolerated and is subject to immediate=20 termination.@ =20 Glende further stated in her affidavit that during her = conversation with=20 Buckner, neither party discussed Costello=3Ds=20 workers=3D = compensation claim or her injury.  Glende then phoned the = personnel=20 center and explained the time sheet inaccuracy to a human = resources=20 representative.  The human resources representative = recommended that=20 Glende terminate Costello based on the Bank=3Ds policy=20 on time sheet abuse.  Based on Buckner=3Ds and the=20 personnel center=3Ds=20 recommendations and Glende=3Ds own=20 assessment of Costello=3Ds time=20 sheet infraction, Glende decided to discharge Costello.  She = did not=20 consult with Brugger about the decision.  Moreover, Brugger = was not=20 informed until she returned from vacation.

On October=20 11, 2002, Glende and the Bank=3Ds Teller=20 Manager met with Costello and asked for her explanation of the = 8:45 time=20 sheet entry.  Costello initially responded she did not recall = that=20 night, then stated the entry must have been a mistake.  = Glende=20 informed Costello that the Bank had previously warned her that = time sheet=20 inaccuracy was unacceptable and that it was grounds for her = immediate=20 termination.  In her affidavit, Glende stated that when her = decision=20 to discharge Costello was based entirely on the error contained on = her=20 time sheet.  Her workplace injury or claim for = workers=3D = compensation benefits had no bearing on the termination.  = Glende=20 averred that she was unaware of Costello=3Ds=20 workers=3D = compensation claim when she discharged Costello.

Several=20 months later, Costello sued the Bank contending that she was fired = in=20 retaliation for filing a workers=3D = compensation claim.  The Bank filed traditional and = no-evidence=20 motions for summary judgment on the grounds that Costello = presented no=20 evidence of a causal link between the filing of a = workers=3D = compensation claim and her termination, or that the = Bank=3Ds stated=20 reason for discharge was false.  The trial court granted = summary=20 judgment without specifying the grounds for its ruling.

II. =20 Standard of Review and = Applicable = Law

We review=20 a grant of summary judgment under a de novo standard.  = Valence=20 Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. = 2005).  When,=20 as here, the trial court grants summary judgment without = specifying the=20 grounds on which it bases its decision, we must affirm the = judgment if any=20 of the grounds presented by the movant are meritorious.  = FM Props.=20 Operating Co. v. City of Austin, 22 S.W.3d 868, = 872B73 (Tex.=20 2000).  We take as true all evidence favorable to the = nonmovant and=20 indulge every reasonable inference and resolve any doubts in the=20 nonmovant=3Ds=20 favor.  Joe v. Two Thirty Nine Joint Venture, 145 = S.W.3d 150,=20 157 (Tex. 2004).

In a=20 traditional motion for summary judgment, the movant has the burden = of=20 demonstrating that there is no genuine issue of material fact and = that it=20 is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); = Am.=20 Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. = 1997).  If the=20 movant establishes its right to summary judgment, the burden = shifts to the=20 nonmovant to raise a genuine material fact issue sufficient to = defeat=20 summary judgment. See Centeq Realty, Inc. v. = Siegler, 899=20 S.W.2d 195, 197 (Tex. 1995); Lundstrom v. United Servs. Auto.=20 Ass=3Dn.-CIC, 192=20 S.W.3d 78, 84 (Tex. App.CHouston=20 [14th Dist.] 2006, pet. denied).

 

Section=20 451.001 of the Texas Labor Code prohibits an employer from = discharging an=20 employee for filing a workers=3D = compensation claim in good faith. Tex. Lab. Code Ann. ' 451.001=20 (Vernon 2006).  The employee has the initial burden of = demonstrating=20 a causal link between the discharge and the filing of a=20 workers=3D = compensation claim.  Benners v. Blanks Color Imaging, = Inc.,=20 133 S.W.3d 364, 369 (Tex. App.CDallas=20 2004, no pet.).  The employee need not show he was fired = solely=20 because of filing the workers=3D = compensation claim, but must show that, Abut=20 for@ = the=20 filing of the claim, the discharge would not have occurred. =20 Haggar Clothing Co. v. Hernandez, 164 S.W.3d 386, 386 (Tex. = 2005).

 

Once the=20 employee establishes a causal link, the employer bears the burden = to rebut=20 the alleged improper termination by showing that a legitimate = reason=20 exists for termination. See Cont=3Dl Coffee=20 Prods. Co. v. Cazarez, 937=20 S.W.2d 444, 450B51 (Tex.=20 1996). Thereafter, to survive a motion for summary judgment, the = burden=20 shifts back to the employee to produce controverting evidence = raising a=20 fact issue as to a retaliatory motive. McIntyre v. Lockheed = Corp.,=20 970 S.W.2d 695, 697 (Tex. App.CFort Worth=20 1998, no pet.).  An employee may establish a link between = termination=20 and the filing of a workers=3D = compensation claim through circumstantial evidence or through = reasonable=20 inferences from the evidence.  Cont=3Dl=20 Coffee, 937=20 S.W.2d at 451; Lee v. Haynes & Boone, L.L.P., 129 = S.W.3d 192,=20 196 (Tex. App.CDallas=20 2004, pet. denied).  Circumstantial evidence sufficient to = establish=20 a causal link between termination and filing a workers=3D = compensation claim may include (1) knowledge of the compensation = claim by=20 those making the termination decision; (2) an expression of a = negative=20 attitude toward the employee=3Ds injured=20 condition; (3) a failure to adhere to established company = policies; (4)=20 discriminatory treatment in comparison to similarly situated = employees;=20 and (5) evidence that the stated reason for the discharge was = false. =20 Cont=3Dl=20 Coffee, 937=20 S.W.2d at 451.  In addition, temporal proximity between the = assertion=20 of a protected right and termination may be evidence of a causal=20 connection.  Fields v. Teamsters Local Union No. 988, = 23=20 S.W.3d 517, 529 (Tex. App.CHouston=20 [1st Dist.] 2000, pet. denied). 

 

III. =20 Summary Judgment Analysis

 

Costello=20 contends she has raised fact issues as to whether (1) the = decision-makers=20 had knowledge of her claim, (2) a negative attitude toward her = condition=20 was expressed, and (3) the stated reason for the discharge was=20 false.  Costello also contends the temporal proximity between = her=20 return to work from her injury and her termination is sufficient = to create=20 a fact issue concerning a causal link.  In responding to the=20 Bank=3Ds motion=20 for summary judgment, Costello made the following averments in her = affidavit:

Tonia Brugger was = my=20 immediate supervisor.  After my on the job injury, after I = came back=20 to work in September, 2002, and on more than one occasion Ms. = Brugger told=20 me I was a Awhiner@, [ ].[1] =20 I responded to her that AI=3Dm only just=20 human.@  I did not = state this=20 on deposition and recalled it after the deposition was over.  = Two=20 weeks after I came back I was terminated.  I was an employee = for over=20 twelve years, and had been told on numerous occasions prior to my = on the=20 job injury from Tonia Brugger that I was Awonderful@.  After my = injury I was=20 written up for seven items on May 15, 2002, after my injury.  = Some of=20 these alleged items were prior to my injury.  I was even = written up=20 for time that I missed due to my on the job injury for being out = on 5/09,=20 5/10, 5/13, and 5/14.  (See exhibit No. 1, a write up that I = received=20 from Tonia Brugger on May 15, 2002, less than two months after my = injury=20 on April 4, 2002.)  Tonia Brugger was present when I was = injured on=20 the job on April 4, 2002, and witnessed my injury.  =

Tonia Brugger = allegedly gave=20 this write up to personnel and I was terminated.

 

 

 

 

A. =20 Knowledge of the Workers=3D = Compensation Claim

We=20 consider first whether those who decided to discharge Costello = knew about=20 her compensation claim.  Glende and Buckner made the = termination=20 decision on behalf of the Bank.  It is undisputed that = Buckner had no=20 knowledge of Costello=3Ds=20 injury.  Glende stated in her affidavit she did not recall=20 Costello=3Ds leave=20 was due to an injury, nor did she have knowledge regarding=20 Costello=3Ds=20 workers=3D = compensation claim. It is equally undisputed that Brugger had = knowledge of=20 Costello=3Ds injury=20 and her workers=3D = compensation claim, but Brugger did not fire Costello.

Costello=20 argues, however, that Glende=3Ds=20 knowledge of Costello=3Ds injury=20 can be inferred from the circumstances.  In her summary = judgment=20 proof, Costello makes no reference to Glende=3Ds=20 knowledge of her injury or her workers=3D = compensation claim.  Moreover, Costello did not controvert = any of the=20 essential averments in Glende=3Ds=20 affidavit. Costello has failed to meet her summary judgment burden = to show=20 that the decision makers had knowledge of her workers=3D = compensation claim.

B.=20  Negative=20 Attitude Toward Costello=3Ds=20 Injury

Costello=20 contends there is overwhelming evidence that Brugger expressed a = negative=20 attitude toward Costello=3Ds=20 injury.  Brugger, however, was not the decision maker in=20 Costello=3Ds=20 termination.  Glende, Buckner, and the individual from the = personnel=20 center participated in the decision to terminate Costello, and = Glende made=20 the final decision.  The fact that someone who is not = involved in the=20 employment decision expressed negative feelings is not evidence = that the=20 decision had a discriminatory motivation.  Russell v. = McKinney=20 Hosp. Venture, 235 F.3d 219, 229 (5th Cir. 2000).  As = such,=20 Brugger=3Ds attitude=20 is not relevant to whether the employer exhibited a negative = attitude=20 toward Costello=3Ds=20 injury.  See Wal-Mart Stores, Inc. v. Amos, 79 S.W.3d = 178, 187=20 (Tex. App.CTexarkana=20 2002, no pet.).

Costello=20 urges this court to consider the Aconduit,@ = or=20 Acat=3Ds=20 paw,@ = theory=20 adopted by some federal courts in discrimination cases.  = Costello=20 contends that because Brugger expressed a negative attitude toward = Costello=3Ds injury=20 and Brugger informed Glende of her negative attitude, that=20 Brugger=3Ds attitude=20 can be imputed to Glende, the decision maker.  The = courts =20 applying the conduit theory limit it to circumstances in which one = supervisor makes a recommendation regarding an employee to another = innocent supervisor who acts on that recommendation without = conducting any=20 independent judgment.  See Long v. Eastfield College, = 88 F.3d=20 300, 307 (5th Cir.1996) (concluding that if the innocent = supervisor=20 Adid not=20 conduct his own independent investigation, and instead merely = >rubber=20 stamped=3D = the=20 recommendation of [the discriminatory supervisors], the causal = link=20 between [the employees=3D]=20 protected activities and their subsequent terminations would = remain=20 intact.@);=20 Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir.1990)=20 (AIf [the=20 employment board] acted as the conduit of [the = supervisor=3Ds]=20 prejudice-his cat=3Ds-paw-the=20 innocence of its members would not spare the company from=20 liability.@);=20 Azzaro v. County of Allegheny, 110 F.3d 968, = 973B74 (3rd=20 Cir.1997) (finding evidence to support liability when a = discriminating=20 supervisor designed a plan to reorganize a department that had the = effect=20 of terminating the plaintiff, which was approved by others without = independent scrutiny).

The Texas=20 Supreme Court has declined to adopt the conduit theory, and we = must follow=20 precedent.  See City of Fort Worth v. Zimlich, 29 = S.W.3d 62,=20 70B71 (Tex.=20 2000); Harris County v. Vernagallo, 181 S.W.3d 17, 26, n.15 = (Tex.=20 App.CHouston=20 [14th Dist.] 2005, pet. denied).   In addition,=20 Glende=3Ds actions=20 do not fit the conduit theory as typically applied.  She was = not an=20 innocent supervisor who acted on the recommendation of one with a = negative=20 attitude.  She initially  consulted with Buckner, then = she=20 conferred with the Bank personnel center before determining what = action to=20 take concerning Costello.  Glende did not discharge Costello = on the=20 basis of Brugger=3Ds=20 recommendation.  Accordingly, we conclude that Costello = failed to=20 meet her summary judgment burden to establish that she was = discharged by=20 personnel who manifested a negative attitude toward her=20 workers=3D = compensation claim.

C. =20 Adherence to Company Policy

Costello=20 contends she was not terminated according to the company policy on = time=20 sheet abuse, but rather in retaliation for filing a = workers=3D = compensation claim.  Specifically, Costello references=20 Brugger=3Ds=20 deposition testimony that the Bank=3Ds policy=20 on time sheet abuse Adepended=20 on the situation.@ =20 However, Costello did not raise this issue in her response to the = motion=20 for summary judgment, nor did she present any evidence that the = Bank did=20 not adhere to its policy. 

D. =20 Less = Favorable Treatment than Similarly Situated = Employees

Costello=20 does not contend she was treated differently than similarly = situated=20 employees.

E. =20 Stated Reason for Discharge was False

Costello=20 contends she raised a fact issue regarding whether the = Bank=3Ds stated=20 reason for discharge was false because (1) the termination process = was=20 triggered by Brugger and was Adependent=20 on her bias and false allegations,@ = and (2)=20 she was terminated shortly after returning to work.  Costello = has=20 failed to present any evidence that Brugger Atriggered@ = the=20 termination process, or that Brugger participated in any manner in = the=20 termination decision.

Further,=20 the timing of Costello=3Ds=20 termination does not raise a fact issue with regard to the truth = of the=20 stated reason for discharge.  Costello contends that the = timing of=20 her termination, less than one month after her return to work from = her=20 injury, creates a fact issue as to whether the stated reason for = discharge=20 is false.  Contrary to Costello=3Ds=20 assertion, the relevant time period to be considered is the time = between=20 the protected activityBin this=20 case, the filing of the workers=3D = compensation claimBand=20 termination.  See Wal-Mart Stores, Inc., 79 S.W.3d at=20 178.  The Bank filed Costello=3Ds=20 workers=3D = compensation claim no later than May 21, 2002.  Costello was=20 terminated on October 11, 2002.  Therefore, the relevant time = period=20 is between May 21, 2002 and October 11, 2002.  =

Although=20 an injury to an employee, followed closely by termination of that=20 employee, is strong evidence the two events are related, such = circumstance=20 alone does not constitute evidence that the stated reason for the=20 employee=3Ds=20 discharge was false.  Id.  In this case, Costello = was not=20 terminated until at least four months after she filed her=20 workers=3D = compensation claim, and more than five months after she was = injured. =20 Pursuant to the Bank=3Ds policy,=20 she was terminated after the second time sheet = violation.

IV. =20 Conclusion

The trial=20 court did not err in granting the Bank=3Ds motion=20 for summary judgment.  As the employee, Costello bears the = initial=20 burden to raise a fact issue demonstrating a causal link between = the=20 discharge and the filing of a workers=3D = compensation claim.  The Bank presented summary judgment = proof that=20 Costello was not discharged because she filed a = workers=3D = compensation claim.  In refuting the Bank=3Ds proof,=20 Costello failed to present circumstantial evidence showing that = (1) those=20 making the termination decision had knowledge of the = workers=3D = compensation claim, (2) the decision makers expressed a negative = attitude=20 toward her injured condition, (3) the Bank failed to adhere to = established=20 company policies, (4) she was treated differently than similarly = situated=20 employees, or (5) the Bank=3Ds stated=20 reason for discharge was false.  Accordingly, we hold = Costello failed=20 to raise a fact issue supporting a causal link between her=20 workers=3D = compensation claim and the Bank=3Ds decision=20 to terminate her employment.[2] =20 The judgment of the trial court is affirmed.

 

 

/s/       =20 Charles W. Seymore

Justice

 

Judgment rendered and Memorandum Opinion = filed=20 December 11, 2007.

Panel consists of Justices Anderson, = Fowler, and=20 Seymore.


[1]  On a motion from = the Bank,=20 the trial court ordered the phrase, Aobviously referring = to my on=20 the job injury and expressing a negative attitude toward my=20 injury@ struck from the=20 affidavit.

[2]  Because we find the trial court = properly=20 granted the Bank=3Ds traditional motion for summary = judgment, we need=20 not address the no-evidence=20 motion.

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FONT-SIZE: 10pt; VERTICAL-ALIGN: top; COLOR: white; = FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; BACKGROUND-COLOR: red } .buttonUnused { PADDING-RIGHT: 1pt; PADDING-LEFT: 1pt; FONT-WEIGHT: normal; FONT-SIZE: = 9pt; PADDING-BOTTOM: 1pt; MARGIN: 1pt; COLOR: #fff5d7; PADDING-TOP: 1pt; = BACKGROUND-COLOR: #576a9d; font-face: Tahoma, Arial, Helvetica, = sans-serif } .buttonTanUnused { PADDING-RIGHT: 1pt; PADDING-LEFT: 1pt; FONT-WEIGHT: normal; FONT-SIZE: = 9pt; PADDING-BOTTOM: 1pt; MARGIN: 1pt; COLOR: #576a9d; PADDING-TOP: 1pt; = BACKGROUND-COLOR: #fff5d7; font-face: Tahoma, Arial, Helvetica, = sans-serif } .TextLargeBlue { FONT-WEIGHT: bold; FONT-SIZE: 12pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, = sans-serif; TEXT-ALIGN: left } .DocketHeaderTitle { FONT-WEIGHT: bold; FONT-SIZE: 14pt; COLOR: black; LINE-HEIGHT: normal; = FONT-FAMILY: Tahoma, Arial, ' Helvetica', sans-serif; TEXT-ALIGN: center } .TextLargeBlack { FONT-WEIGHT: bold; FONT-SIZE: 11pt; COLOR: black; LINE-HEIGHT: normal; = FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-ALIGN: left } .TextLargeBlackcenter { FONT-WEIGHT: bold; FONT-SIZE: 11pt; COLOR: black; LINE-HEIGHT: normal; = FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-ALIGN: center } .TextBlue { FONT-WEIGHT: normal; FONT-SIZE: 10pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif } A.TextBlue { FONT-WEIGHT: normal; FONT-SIZE: 10pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-DECORATION: none } .TextRed { FONT-WEIGHT: normal; FONT-SIZE: 12pt; COLOR: red; LINE-HEIGHT: normal; = FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif } .TextHidenGray { FONT-SIZE: 0pt; COLOR: #ebebe1; LINE-HEIGHT: normal; FONT-FAMILY: = Tahoma, Arial, Helvetica, sans-serif; TEXT-ALIGN: left } .Time { FONT-WEIGHT: bold; FONT-SIZE: 10px; COLOR: red; LINE-HEIGHT: 4em; = FONT-FAMILY: Arial, Helvetica, sans-serif; TEXT-ALIGN: center } ------=_NextPart_000_0000_01C83C36.DC239880--