Affirmed and Memorandum Opinion filed October =
11,=20
2007.
In The
Fourteenth Court=20
of Appeals
____________
NO. 14-07-00213-CV
____________
MONICA=20
JOHNSON, =
Appellant
V.
MOODY=20
INTERNATIONAL, INC., =
Appellee
On Appeal from the =
152nd District Court
Harris County, =
Texas
Trial Court Cause =
No. 2005-73433
M E M O R=20
A N D U M O P I N I O N
This is an=20
appeal from a summary judgment denying Monica Johnson=3Ds claims=20
based on retaliatory discharge for filing a workers=3D =
compensation claim. Moody International, Inc. terminated =
Monica=20
Johnson=3Ds=20
employment on the basis that she failed to comply with the =
attendance=20
provision of the employee handbook. Johnson sued Moody =
contending=20
that Moody had, in fact, fired her in retaliation for filing a=20
workers=3D =
compensation claim. The trial court granted summary judgment =
in=20
favor of Moody. Johnson appeals the summary judgment =
contending that=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
Background
On January=20
17, 2005, Moody hired Johnson to work as a recruiter at its =
Woodlands=20
office. Johnson was given an employee handbook, which states =
specifically that employees are expected to work an eight-hour day =
with=20
one hour for lunch. The handbook expressly addresses the =
lunch hour=20
as follows, AIt is=20
expected that employees utilize the assigned lunch hour for eating =
or=20
personal purposes. Employees are not permitted to work =
through the=20
allotted lunch hour to advance their quitting time.@ =20
Within weeks of beginning employment with Moody, =
Johnson=3Ds=20
immediate supervisor, Ernest Garcia, discussed her tardiness and =
requested=20
that Johnson arrive at work at 8:00 in the morning. Garcia =
explained=20
that Johnson=3Ds=20
tardiness was preventing her from meeting project deadlines. =
In=20
July, 2005, Garcia again reprimanded Johnson for arriving late to=20
work. Johnson explained that during the summer she had to =
rely on=20
her mother for childcare and was unable to arrive at work prior to =
9:00 in=20
the morning. Garcia arranged for Moody to lend Johnson =
$1,400 to pay=20
for additional childcare during the summer break from =
school. =20
On August=20
11, 2005, Johnson fell in the break room and injured her knees, =
hands, and=20
left arm. She reported her injury to Garcia, who requested =
that=20
Johnson complete the appropriate paperwork. Garcia then =
filed a=20
workers=3D =
compensation claim on her behalf. Johnson returned to work =
from her=20
injury on September 28, 2005. Johnson continued to arrive at =
work=20
well after 8:00 in the morning and left early three days a week to =
attend=20
physical therapy. Pat McQuillan, Moody=3Ds senior=20
vice-president of staffing services, held a disciplinary meeting =
with=20
Johnson during the week of October 24, 2005. McQuillan =
explained=20
that Johnson=3Ds work=20
hours were unacceptable. McQuillan wrote a note on=20
Johnson=3Ds time=20
sheet stating that he agreed to pay her for eighty =
hours=3D =
work, but=20
would not continue to do so if Johnson did not work forty hours =
per=20
week. McQuillan asked Johnson to provide him with a schedule =
of=20
hours she could work that would total eight hours per day with one =
hour=20
reserved for lunch, as specified by Moody=3Ds employee=20
handbook.
On October=20
28, 2005, McQuillan sent an email to Johnson stating, AI did not=20
hear from you today as we agreed on the issue of a firm work=20
schedule. This needs to be resolved Monday as we need a full =
eight=20
(8) hour day from you due to the demands of the =
position.@ =20
Johnson responded as follows:
With knowledge and=20
understanding of my rights and responsibilities to my school age =
children=20
and my employer as a single parent, I have explored all possible =
avenues=20
in response to the [previous email].
* * * *=20
*
As far as =
committing to=20
consistent working hours, I can commit 9am to 5am [sic]. =
Committing=20
to an 8:30am arrival would cause excessive tardiness due to my one =
hour=20
commute to and from work and excessive late fees to my sitter =
arriving=20
after 6:00 pm.
On=20
November 2, 2005, McQuillan and Garcia met with Johnson to discuss =
her=20
failure to work a full eight-hour day. Johnson refused to =
comply=20
with their requests and was terminated. The termination =
letter=20
stated she was terminated for failing to comply with the =
attendance=20
provision in the employee handbook.
Johnson=20
sued Moody, contending that she was actually fired as retaliation =
for=20
filing a workers=3D =
compensation claim. Moody sought summary judgment on the =
grounds=20
that Johnson produced no evidence or, in the alternative, was =
unable to=20
raise a fact issue showing that (1) there was a causal link =
between her=20
filing a workers=3D =
compensation claim and her termination, (2) Moody=3Ds=20
proffered reason for terminating Johnson was false, and (3) =
Johnson=20
suffered a hostile work environment because she had sought=20
workers=3D =
compensation benefits. The trial court granted summary =
judgment=20
without specifying the grounds on which it relied.
II. =20
Standard of Review
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 under Texas Rule of Civil=20
Procedure 166a(c), the movant has the burden of demonstrating that =
there=20
is no genuine issue of material fact and that it is entitled to =
judgment=20
as a matter of law. Tex. =
R.=20
Civ. P. 166a(c); Am. Tobacco Co. v. Grinnell, 951 =
S.W.2d=20
420, 425 (Tex. 1997).
In a=20
no‑evidence motion for summary judgment under Rule 166a(i), =
the movant=20
represents that there is no evidence of one or more essential =
elements of=20
the claims for which the nonmovant bears the burden of proof at=20
trial. Tex. R. =
Civ.=20
P. 166a(i); Green v. Lowe=3Ds Home=20
Ctrs., Inc., 199=20
S.W.3d 514, 518 (Tex. App.CHouston=20
[1st Dist.] 2006, pet. denied). We must sustain a =
no‑evidence summary=20
judgment when (1) there is a complete absence of evidence of a =
vital fact,=20
(2) the court is barred by rules of law or of evidence from giving =
weight=20
to the only evidence offered to prove a vital fact, (3) the =
evidence=20
offered to prove a vital fact is no more than a mere scintilla, or =
(4) the=20
evidence conclusively establishes the opposite of a vital =
fact. =20
Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 =
(Tex.=20
1997).
III. =20
Summary Judgment Analysis
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=20
employee may establish a link between termination and the filing =
of a=20
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).
Here,=20
Johnson contends she has raised fact issues as to whether (1) the=20
decision-makers had knowledge of her claim, (2) a negative =
attitude toward=20
her injured condition was expressed, and (3) the stated reason for =
the=20
discharge was false. Johnson also contends that the temporal =
proximity between her return to work from her work-related injury =
and her=20
termination is sufficient to create a fact issue concerning a =
causal=20
link.
A. =20
Knowledge of the Workers=3D =
Compensation Claim
It is=20
undisputed that Moody knew about Johnson=3Ds=20
workers=3D =
compensation claim. Moody filed the claim on =
Johnson=3Ds=20
behalf. However, knowledge of a workers=3D =
compensation claim alone does not establish a causal link between =
the=20
alleged discriminatory behavior and the filing of a claim =
sufficient to=20
defeat summary judgment; it is merely a factor to be considered in =
light=20
of the entire record. Green, 199 S.W.3d at =
519.
B. =20
Negative Attitude Toward Johnson=3Ds=20
Injury
Johnson=20
contends that Garcia told her to stop physical therapy and that =
she was=20
reprimanded for taking time off at the end of the day to attend =
physical=20
therapy appointments. Johnson asserts in her affidavit and =
in her=20
deposition that Garcia told her he wanted her to stop physical =
therapy=20
because she was needed at work. Garcia denies that he told =
Johnson=20
to stop physical therapy, but says he counseled her on coming to =
work on=20
time and working a full day. The summary judgment =
evidence=20
shows that McQuillan was the decision maker in Johnson=3Ds=20
termination. McQuillan received the email in which Johnson =
refused=20
to submit a schedule that would permit her to work full days, and=20
McQuillan made the decision to terminate Johnson. The fact =
that=20
someone who is not involved in the employment decision of which =
the=20
plaintiff complains 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
Garcia=3Ds comments=20
are not relevant to whether the employer exhibited a negative =
attitude=20
toward Johnson=3Ds=20
injury. See Wal-Mart Stores, Inc. v. Amos, 79 S.W.3d =
178, 187=20
(Tex. App.CTexarkana=20
2002, no pet.); see also McFarland v. Goodman Mfg Co.,=20
01-03-00502-CV; 2004 WL 1277572 (Tex. App.CHouston=20
[1st Dist.] 2004, no pet.) (memo. op.) (Statement made to employee =
by his=20
supervisor, AFall=20
asleep, you get fired,@ =
considered stray remark and not competent summary judgment=20
evidence).
Johnson=20
also contends that the note McQuillan wrote on her time sheet =
referenced=20
her absenteeism due to physical therapy appointments. The =
note on=20
the time sheet reads, AAgreed to=20
pay full 80 but that this will no longer be tolerated. Need =
full 40=20
each week.@ =20
When asked about this note in his deposition, McQuillan stated =
that he did=20
not object to Johnson=3Ds=20
attending physical therapy appointments. McQuillan stated =
that his=20
main focus in counseling Johnson was on her arrival times, not her =
departure times. McQuillan testified that the primary =
purpose of the=20
time sheet was to give accurate advice to the payroll department =
as to how=20
much an employee was to be paid. In writing the note, =
McQuillan=20
instructed the payroll department to pay Johnson for eighty=20
hours=3D =
work. He testified that the note reflected that the =
shortfall=20
relating to physical therapy was accepted, but the shortfall =
relating to=20
tardiness was not accepted, and was a continual discussion point =
with=20
Johnson. Nothing in the note written by McQuillan reflects a =
negative attitude toward Johnson=3Ds injury.=20
C. =20
Adherence to Company Policy
Johnson=20
argues that she was not terminated according to the company =
absence=20
control policy, but rather in retaliation for filing a =
workers=3D =
compensation claim. Specifically, Johnson argues that Moody =
was=20
satisfied with her performance prior to her injury, but did not =
counsel=20
her on tardiness or absenteeism until after her injury. The =
summary=20
judgment proof does not support Johnson=3Ds=20
assertion.
The=20
company policy, as stated in the employee handbook, is that =
employees are=20
to work a full eight-hour day with one hour for lunch. The =
handbook=20
specifically requires employees to use the lunch hour to eat or =
for=20
personal purposes and prohibits the use of the lunch hour to =
advance=20
quitting time. Within weeks of beginning employment with =
Moody,=20
Johnson was counseled about tardiness and failure to work an =
eight-hour=20
day. Prior to her injury, Garcia arranged a non-interest =
loan for=20
childcare to enable Johnson to arrive at work on time and work a =
full=20
day. Johnson produced no summary judgment proof that Moody =
failed to=20
adhere to its company policy.
D. =20
Less Favorable Treatment than Similarly Situated =
Employees
Johnson=20
does not contend that she was treated differently than similarly =
situated=20
employees.
E. =20
Stated Reason for Discharge was False
Johnson=20
contends that she raised a fact question regarding whether=20
Moody=3Ds stated=20
reason for discharge was false because (1) she presented evidence =
that she=20
was permitted to arrive at work at 9:00, (2) her work schedule was =
not=20
criticized until after her injury, and (3) it is reasonable to =
infer that=20
the note on her time sheet requesting a full forty-hour week was a =
comment=20
on her absence due to physical therapy.
Johnson=3Ds evidence=20
that she was permitted to arrive at 9:00 in the morning consists =
of her=20
affidavit, deposition testimony, and signed time sheets. In =
her=20
affidavit, Johnson alleged that she had arranged with her =
supervisors to=20
arrive at work at 9:00 in the morning. However, in her =
deposition,=20
Johnson admitted that she had no specific permission to arrive at=20
9:00. Johnson claims that by signing her time sheets =
reflecting a=20
late arrival, Garcia tacitly approved her late arrival time. =
McQuillan testified, however, that the time sheet was a method to =
advise=20
the payroll department on how much to pay an employee. With =
regard=20
to a change in standard hours, the Moody employee handbook states, =
AAll=20
personnel shall work the normal stated hours unless other =
arrangements are=20
approved by the President in writing.@ =20
Garcia=3Ds=20
signature on the time sheets does not meet the handbook =
requirement of=20
written approval by the President.
The=20
summary judgment proof does not support Johnson=3Ds=20
contention that her work schedule was not criticized until after =
her=20
injury. The record contains a copy of the promissory note =
Johnson=20
signed in exchange for the no-interest loan to aid with =
childcare. =20
The date on the note is prior to Johnson=3Ds=20
injury. Johnson admitted that Garcia spoke with her in July, =
2005=20
about her late arrival and that Moody agreed to lend her money to =
help=20
with childcare to enable her to work full days. =
Further,=20
nothing in the record suggests that
the note=20
on Johnson=3Ds time=20
sheet can be inferred to mean anything other than what the plain =
language=20
reflects. The note reflects that Moody agreed to pay Johnson =
for=20
eighty hours=3D =
work even=20
though she had not worked eighty hours, but that Moody would not =
tolerate=20
a less than forty-hour week in the future. =
Johnson=3Ds=20
subjective belief regarding the reason for her discharge is =
insufficient=20
to raise a fact issue. See Tex. Division-Tranter, Inc. v. =
Carrozza, 876 S.W.2d 312, 313B14 (Tex.=20
1994) (summary judgment properly granted when employee did not =
deny he=20
violated absence control rule, but subjectively thought he was =
terminated=20
as retaliation.).
Johnson=20
contends that the timing of her termination, approximately six =
weeks after=20
her return to work from her work-related injury creates a fact =
issue as to=20
whether the stated reason for discharge is false. Contrary =
to=20
Johnson=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 the=20
termination. See Wal-Mart Stores, Inc. v. Amos, 79 =
S.W.3d at=20
178. Moody filed Johnson=3Ds=20
workers=3D =
compensation claim on the date of her injury, August 11, 2005, or =
the day=20
following her injury. Therefore, the relevant time period to =
consider is between August 11 or 12, 2005 and November 2, 2005, a =
period=20
of almost three months.
Although=20
an injury by an employee, followed closely by termination of that=20
employee, is strong evidence the two events are related, such =
circumstance=20
alone is no evidence that the stated reason for the =
employee=3Ds=20
discharge was false. Id. Johnson was not =
terminated=20
until almost three months after she was injured. The record =
reflects=20
that McQuillan and Garcia counseled Johnson on her tardiness, =
unrelated to=20
her injury, several times both before and after she was =
injured. =20
After several counseling sessions regarding her tardiness proved=20
unsuccessful, McQuillan asked Johnson to provide a schedule that =
would=20
permit her to work forty hours per week. Johnson refused to =
submit=20
such a schedule and maintained that she could not arrive at work =
prior to=20
9:00 in the morning. Johnson was not terminated until after =
she=20
refused to provide McQuillan with a schedule that would permit her =
to work=20
forty hours per week. The timing of Johnson=3Ds=20
termination is not evidence that the stated reason for her =
discharge was=20
false.
Conclusion
Johnson=20
failed to raise a fact issue as to the causal link between her=20
workers=3D =
compensation claim and her termination. We affirm the =
judgment of=20
the trial court.
/s/ =20
Adele Hedges
Chief =
Justice
Judgment=20
rendered and Memorandum Opinion filed October 11, 2007.
Panel=20
consists of Chief Justice Hedges and Justices Frost and =
Guzman.
|