Oscar Gonzalez v. H & H Meat Products Company, Inc.

Gonzalez v. H&H Meat Products NUMBER 13-02-00048-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG OSCAR GONZALEZ, Appellant, v. H&H MEAT PRODUCTS COMPANY, INC., Appellee. On appeal from the 332nd District Court of Hidalgo County, Texas. MEMORANDUM OPINION Before Justices Hinojosa, Yañez, and Castillo Opinion by Justice Hinojosa Appellant, Oscar Gonzalez, appeals from the trial court's order granting the motion for summary judgment of appellee, H&H Meat Products Company, Inc. ("H&H"), on appellant's claims for workers' compensation retaliatory discharge and intentional infliction of emotional distress. In two issues, appellant contends the trial court erred in granting the motion for summary judgment. We affirm. As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here. See Tex. R. App. P. 47.4. A. Summary Judgment We review the granting of a traditional motion for summary judgment de novo. See Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994); Tex. Commerce Bank Rio Grande Valley v. Correa, 28 S.W.3d 723, 726 (Tex. App.-Corpus Christi 2000, pet. denied). To prevail, the moving party has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991). In deciding whether there is a genuine issue of material fact, evidence favorable to the nonmovant will be taken as true, and all reasonable inferences made, and all doubts resolved, in its favor. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997). Summary judgment is proper if the movant disproves at least one element of each of the plaintiff's claims or affirmatively establishes each element of an affirmative defense to each claim. Id. When, as here, a trial court's order granting a motion for summary judgment does not specify the ground or grounds relied on for its ruling, the appellate court will affirm the summary judgment if any of the theories advanced are meritorious. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001); Boren v. Bullen, 972 S.W.2d 863, 865 (Tex. App.-Corpus Christi 1998, no pet.). B. Retaliatory Discharge Claim In his first issue, appellant contends the trial court erred in granting H & H's motion for summary judgment on his claim that H&H discharged him in retaliation for his filing a workers' compensation claim under section 451 of the Texas Labor Code. See Tex. Lab. Code Ann. § 451.001 (Vernon 1996). In its motion for summary judgment, H&H asserted it was entitled to summary judgment because appellant failed to establish a causal link between his discharge and the filing of his workers' compensation claim. H&H argued it provided legitimate, non-discriminatory reasons for terminating appellant. Appellant contends that summary judgment was improper because the evidence raised genuine issues of material fact concerning H&H's motive in discharging him after he filed a workers' compensation claim. Section 451.001 of the labor code provides: A person may not discharge or in any other manner discriminate against an employee because the employee has: filed a workers' compensation claim in good faith; hired a lawyer to represent the employee in a claim; instituted or caused to be instituted in good faith a proceeding under Subtitle A; or testified or is about to testify in a proceeding under Subtitle A. Id. The burden of proof is on the employee to demonstrate the causal link between the discharge and the filing of a workers' compensation claim, an element of his prima facie case for retaliatory discharge. Tex. Lab. Code Ann. § 451.002(c) (Vernon 1996); West v. Maint. Tool & Supply Co., Inc., 89 S.W.3d 96, 105 (Tex. App.-Corpus Christi 2002, no pet.); Garcia v. Allen, 28 S.W.3d 587, 600 (Tex. App.-Corpus Christi 2000, pet. denied). The employee must prove that but for the filing of the workers' compensation claim the discharge would not have occurred when it did. City of Fort Worth v. Zimlich, 29 S.W.3d 62, 67 (Tex. 2000); (1) Cont'l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996). An employee can meet his burden without showing that he was discriminated against solely because of the filing of a workers' compensation claim; however, he must show that the filing of the claim was at least a determining factor in the discriminatory conduct. West, 89 S.W.2d at 105; Terry v. S. Floral Co., 927 S.W.2d 254, 257 (Tex. App.-Houston [1st Dist.] 1996, no writ). This causal connection may be established by direct or circumstantial evidence and by reasonable inferences arising from it. Allen, 28 S.W.3d at 600. Circumstantial evidence sufficient to establish a causal link between termination and filing a compensation claim includes: (1) knowledge of the compensation claim by those making the decision on termination; (2) expression of a negative attitude toward 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. Cazarez, 937 S.W.2d at 450-51; Allen, 28 S.W.3d at 600; Gorges Foodservice, Inc. v. Huerta, 964 S.W.2d 656, 665 (Tex. App.-Corpus Christi 1997, no pet.). Once an employee has established the causal link, the employer bears the burden to rebut the allegation of retaliatory discharge by showing there was a legitimate reason behind the termination. Allen, 28 S.W.2d at 600. Thereafter, to survive the employer's motion for summary judgment, the burden shifts back to the employee to produce controverting evidence of a retaliatory motive. Id. Assuming appellant alleged a prima facie case of retaliatory discharge, the burden was on H&H, as the summary judgment movant, to prove a legitimate, nondiscriminatory reason for appellant's termination. See M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 24 (Tex. 2000). In its motion for summary judgment, H&H asserted that it terminated appellant because he: (1) violated H&H's three-day, absence-control policy; and (2) refused to accept the only light-duty position available in H&H's warehouse. As summary judgment proof, H&H submitted affidavits and deposition testimony of supervisory personnel stating that appellant's termination was unrelated to his workers' compensation claim; rather, he was terminated for violating the company's three-day, absence-control policy, and he refused the only light-duty position available at the time. H&H also submitted a copy of the pertinent pages of its employee handbook relating to the three-day, absence-control policy. Compliance with an absence-control policy has been held to be a legitimate non-discriminatory reason for discharge. See Tex. Division-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 313 (Tex. 1994); Terry, 927 S.W.2d at 258-59. We conclude that H&H's summary judgment evidence established that it had a legitimate, nondiscriminatory reason for terminating appellant. Once H&H established a legitimate, nondiscriminatory reason, appellant had the burden to show that a fact issue existed that the company's reasons for terminating him were retaliatory. See Willrich, 28 S.W.3d at 24. Appellant could respond by presenting evidence raising a fact issue on retaliatory motive or by challenging H&H's summary judgment evidence as failing to prove, as a matter of law, that the company had a legitimate nondiscriminatory reason for his termination. See id. In his response to H&H's motion for summary judgment, appellant did assert that the proffered reason for his termination was false. However, mere allegations in responsive pleadings are not competent summary judgment evidence. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979); Terry, 927 S.W.2d at 259. Appellant produced the following evidence to rebut H&H's reason for his discharge: (1) a letter from appellant's treating physician, indicating appellant was advised to return to light duty work on April 27, 1990, but that appellant and his wife were "unwilling" and indicated they were going to get a second opinion; (2) a letter from H&H's personnel director, informing appellant of his option to continue group health insurance coverage; (3) personnel notes indicating appellant's attorney telephoned H&H's personnel director on May 15, 1990, and was informed H&H did not have a position for appellant, and that appellant had refused the light-duty position offered on May 11, 1990; and (4) an excerpt from appellant's deposition testimony regarding his May 11th meeting with supervisory personnel at H&H. We conclude that the summary judgment evidence produced by appellant did not rebut H&H's articulated reason for terminating his employment. Appellant produced no evidence showing that his employment was terminated because he filed a workers' compensation claim against the company or even that the claim was a determining factor in his termination. Appellant failed to produce controverting evidence of H&H's retaliatory motive. Accordingly, we hold that the trial court did not err in granting H&H's motion for summary judgment on appellant's retaliatory discharge claim. Appellant's first issue is overruled. C. Intentional Infliction of Emotional Distress claim In his second issue, appellant contends the trial court erred in granting H&H's motion for summary judgment on his claim for intentional infliction of emotional distress. However, nowhere in his response to H&H's motion for summary judgment does appellant present any argument or evidence regarding this issue. Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal. See Tex. R. Civ. P. 166a(c). Because this issue was not preserved for appellate review, it is overruled. (2) We affirm the trial court's order granting H&H's motion for summary judgment. FEDERICO G. HINOJOSA Justice Opinion delivered and filed this the 21st day of August, 2003. 1. The Zimlich case involves a whistle blower claim. City of Fort Worth v. Zimlich, 29 S.W.2d 62, 67 (Tex. 2000). However, the causation nexus required in that case is applicable to section 451.001 cases. See Cont'l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996); Tex. Dep't of Human Servs. v. Hinds, 904 S.W.2d 629, 635-36 (Tex. 1995); Gorges Foodservice, Inc. v. Huerta, 964 S.W.2d 656, 667 (Tex. App.-Corpus Christi 1997, no pet.). 2. We note that the wrongful conduct appellant claims caused his emotional distress is H&H's alleged wrongful discharge, and H&H met its burden on summary judgment to show that appellant was not entitled to recover for wrongful discharge. Thus, appellant cannot, as a matter of law, recover on his claim for intentional infliction of emotional distress resulting from the termination. See Vasquez v. Ritchey, 973 S.W.2d 406, 408 (Tex. App.-Corpus Christi 1998), pet. granted, judgm't vacated w.r.m., 986 S.W.2d 611 (Tex. 1999) (per curiam).