Scott Cerre v. Odfjell Terminals (Houston) LP

NUMBER 13-05-055-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG SCOTT CERRE, Appellant, v. ODFJELL TERMINALS (HOUSTON), LP, Appellee. On appeal from the 281st District Court of Harris County, Texas. MEMORANDUM OPINION Before Justices Hinojosa, Yañez, and Garza Memorandum Opinion by Justice Garza Appellant, Scott Cerre, appeals the summary judgment granted in favor of appellee, Odfjell Terminals (Houston) LP (AOdfjell@), on his claim that Odfjell discharged and discriminated against him in violation of chapter 451 of the Texas Labor Code because he filed a workers= compensation claim after he was injured on the job. See Tex. Lab. Code Ann. ' 451.001 (Vernon 2006). In two issues, Cerre contends that the trial court erred in granting summary judgment in favor of Odfjell on his claims for violation of the Texas Anti‑Retaliation Statute. See id. For the reasons that follow, we affirm the judgment of the trial court. I. Background Odfjell operates a chemical tank terminal located at the entrance of the Houston ship channel. In August 1999, Odfjell hired Cerre as a shore operator/chemical loader to work on rail cars. Cerre was injured on the job on November 16, 2000, when he fell while trying to load a rail car. Cerre reported the injury to his supervisor on the day it occurred. On October 8, 2001, Cerre took a leave of absence from his job at Odfjell. Under Odfjell=s absence-control policy, A[w]hen an employee is absent from work, for any reason, for a period of six (6) continuous months, employment will be terminated.@ On April 8, 2002, Cerre was terminated pursuant to Odfjell=s absence-control policy. Cerre=s termination, however, did not affect his ability to receive workers= compensation benefits. Cerre=s deposition testimony reflects that Cerre continued to receive benefits for the remainder of 2002 and the remainder or most of 2003. Cerre sued Odfjell alleging that he was discharged and discriminated against in violation of chapter 451 of the Texas Labor Code because he filed a workers= compensation claim. See Tex. Lab. Code Ann. ' 451.001. Odfjell filed a no-evidence motion for summary judgment and a traditional motion for summary judgment. Without specifying its grounds, the trial court granted Odfjell=s summary judgment on all of Cerre=s claims. This appeal ensued. II. Applicable Law We review the decision to grant or deny a summary judgment motion de novo. See Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994). Where, as in this case, the trial court does not state the specific grounds upon which the summary judgment was granted, the reviewing court must consider whether any theories set forth in the motion will support a summary judgment. State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993). A summary judgment must be affirmed if any of the theories advanced by the movant are meritorious. Id. Cerre=s claims in this case were brought under section 451.001 of the Texas Labor Code. See Tex. Lab. Code Ann. ' 451.001. The labor code provides, in pertinent part, that a person may not discharge or discriminate against an employee because the employee has filed a workers= compensation claim in good faith. See id. The Workers' Compensation Act is to be liberally construed in favor of the legislative intent to protect workers' compensation claimants. Castro v. U.S. Natural Res., Inc., 880 S.W.2d 62, 65 (Tex. App.BSan Antonio 1994, writ denied). Discrimination is an independent, alternative ground of recovery under the Act. Id. III. Motion for Summary Judgment In its traditional summary judgment motion, Odfjell advanced the following summary judgment theories: (1) Cerre could not establish a prima facie case of retaliation, specifically, that Cerre could not establish any causal connection between his worker's compensation claim and his termination; (2) Odfjell had a valid, non‑discriminatory reason for terminating Cerre=s employment; and (3) assuming Cerre established a prima facie case of discrimination, he could not establish that Odfjell=s reason for termination was a pretext for discrimination. In its no evidence summary judgment motion, Odfjell contended there was no evidence to support Cerre=s claim of retaliation, specifically, that there was no evidence that Odfjell (1) failed to follow its policies in its treatment of Cerre, (2) treated similarly situated employees who did not file workers= compensation claims more favorably, and (3) expressed a negative attitude toward Cerre for filing a workers= compensation claim. In his response to Odfjell=s motion for summary judgment, Cerre first asserted the motion must fail because Odfjell did not address his discrimination claim. He also asserted that there is a question of fact regarding whether the filing of his workers' compensation claim was a determining factor in his termination or the discrimination against him. Cerre further contended that summary judgment would be improper because issues of material fact exist relating to the reasonableness of Odfjell=s reason terminating him. In support of his response, Cerre relied on his deposition testimony and his affidavit detailing the events leading up to his termination. IV. Discrimination Claim In his first issue, Cerre asserts that the trial court erred in granting the summary judgment because Odfjell=s motion for summary judgment ignored his discrimination claim and, instead, addressed only the termination claim.[1] He argues that termination and discrimination are independent grounds under section 451.001, both prohibited by that section and both pleaded in his petition. See Tex. Lab. Code Ann. ' 451.001. Cerre asserts that the trial court's order granting Odfjell's motion for summary judgment specifically did so on the basis that Cerre was discharged for violating the company=s absentee policy, thereby addressing only the termination claim. Thus, Cerre contends that the trial court erred in rendering an order dismissing the section 451.001 claim in its entirety. Cerre further asserts that, even if Odfjell=s motion could be construed as having addressed the discrimination claim, a question of fact exists as to whether he was discriminated against for filing a workers' compensation claim in violation of labor code section 451.001. He argues that Odfjell did not present any evidence on the issue of discrimination or attempt to refute the allegation that Cerre was discriminated against for filing a workers' compensation claim. In response, Odfjell suggests that section 451.001 does not provide a separate claim for discrimination. We disagree with Odfjell. See Castro, 880 S.W.2d at 65 (stating that discrimination is an independent, alternative ground of recovery under section 451.001); see also Garcia v. Levi Strauss & Co., 85 S.W.3d 362, 369 (Tex. App.BEl Paso 2002, no pet.) (holding that Aa hostile work environment can, under the right set of circumstances, constitute >other discrimination= within the meaning of section 451"). Nonetheless, Odfjell states that, assuming this Court were to agree with Cerre that discrimination is an independent ground of recovery, Cerre ignores the rulings in Garcia. See Garcia, 85 S.W.3d at 369. Odfjell cites the court=s holding in Garcia which states, Awhile Garcia=s testimony demonstrates several unfriendly incidents related to her status as a worker=s compensation claimant, the evidence as a whole does not create a genuine issue of material fact as to whether Levi Strauss=s conduct was so severe and pervasive that it destroyed her ability to succeed in the workplace.@ Id. at 371. Odfjell goes on to state that Ain this case, the isolated comments allegedly made by unnamed supervisors are not as egregious as those found not actionable by the Garcia court.@ A summary judgment may be upheld on appeal on only those grounds expressly set out in the motion for summary judgment or in an answer or any other response. Tex. R. Civ. P. 166a(c). Grounds may be stated concisely, without detail and argument, but they must be at least listed in the motion. McConnell v. Southside Ind. Sch. Dist., 858 S.W.2d 337, 340 (Tex. 1993). This has been interpreted to mean that when one argues that a claim is not cognizable under a particular statute, this is sufficient to challenge whether a claim has been stated under that statute. Abbott Lab. v. Segura, 907 S.W.2d 503, 508 (Tex. 1995) (Cornyn, J., concurring) (citing McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 340 (Tex. 1993) ("Grounds may be stated concisely, without detail and argument.")). Odfjell=s motion for summary judgment clearly argues that Cerre=s factual allegations do not constitute an actionable claim for discrimination under 451.001. Therefore, we conclude that this is sufficient under the above authorities to place the issue of discrimination before the trial court. We now address the remainder of Cerre's argument that a fact issue remains concerning his claim for discrimination. Both Texas and federal law recognize that an employer can "discriminate" against an employee by creating, or permitting the creation or maintenance of, a hostile work environment because of that employee's sex, race, religion, color, national origin, or disability. See Dillard Dept. Stores, Inc. v. Gonzales, 72 S.W.3d 398, 406 (Tex. App.BEl Paso 2002, pet. ref'd). We believe this reasoning applies equally to the prohibition on otherwise discriminating against workers' compensation claimants. See Garcia, 85 S.W.3d at 370. Thus, a hostile work environment can, under the right set of circumstances, constitute "other discrimination" within the meaning of section 451. See id. at 369. We analyze Cerre's discrimination claim accordingly. Extrapolating from other discrimination law, to establish its right to summary judgment on Cerre=s claim of a hostile work environment, Odfjell must conclusively negate at least one of these five elements: (1) that Cerre belongs to a protected group; (2) that he was subjected to unwelcome harassment; (3) that the harassment was based on his having filed a workers' compensation claim; (4) that the harassment affected a term, condition, or privilege of his employment; or (5) that his employer knew, or should have known, of the harassment and failed to take prompt remedial action. See id. at 370 (citations omitted). If fact questions exist on any of these elements, summary judgment was not warranted. Taken in the light most favorable to Cerre, the record reflects the following evidence. Cerre=s (unnamed) supervisor told him to Asay your back is all right . . . . Do the best you can to keep it off any issue because you ain=t going nowhere with it. You=re going to end up paying for it. You don=t want to file no comp claims.@ Another (unnamed) superintendent told Cerre, Aoh, we hear there ain=t nothing wrong with your back.@ Yet another (unnamed) supervisor mentioned at a meeting, Aas soon as he (Cerre) gets back, we=re going to get him.@ Cerre also testified that a co-worker by the name of Wendell Lewis, told him, Ayou don=t want to file a claim . . . . Man, don=t file a claim. You=re going to get terminated eventually.@ In his deposition testimony, Cerre testified Aafter my work-related injury and pursuance of a workers= compensation claim, I was isolated from my co-workers, singled out for harsh, humiliating treatment and was made to feel degraded and like I was >faking= an injury.@ He further testified that Athis misconduct was humiliating to me and caused me a severe degree of emotional distress.@ Cerre also stated, AOdfjell belittled my injury, and even though, on one hand, some people at Odfjell at times would seem to encourage my medical treatment, on the other hand, the overwhelming weight of comment and conduct by Odfjell=s supervisory personnel towards me was extremely negative against me for pursuing the workers= compensation claim.@ To rise to an actionable level, a hostile environment must be "both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so." Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998); Garcia, 85 S.W.3d at 370. The Supreme Court has made it clear "that conduct must be extreme to amount to a change in the terms and conditions of employment . . . ." Faragher, 524 U.S. at 788. The Supreme Court has held that "'simple teasing,' offhand comments, and isolated incidents unless extremely serious will not amount to discriminatory changes in the 'terms and conditions of employment.'" Id. at 788; Shepherd v. Comptroller of Public Accounts, 168 F.3d 871, 874 (5th Cir. 1999). A hostile work environment is one "so severe and pervasive that it destroys a protected classmember's opportunity to succeed in the workplace." Shepherd, 168 F.3d at 874. To be sufficiently severe or pervasive, the conduct must be "extensive, long‑lasting, unredressed, and uninhibited" and "permeate the plaintiffs' work environment." Indest v. Freeman Decorating, Inc., 164 F.3d 258, 264 (5th Cir. 1999). Conduct that is not severe enough to create a work environment that a reasonable person would find hostile or abusive will not trigger a hostile environment claim. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21‑22 (1993); Garcia v. Schwab, 967 S.W.2d 883, 885 (Tex. App.BCorpus Christi 1998, no pet.). Whether an environment is "hostile" or "abusive" can be determined only by reviewing all the circumstances, which may include the frequency of the conduct, its severity, whether it is physically threatening or humiliating or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris, 510 U.S. at 23; Garcia, 967 S.W.2d at 885‑86. While Cerre=s evidence demonstrates several negative comments related to his status as a workers' compensation claimant, the evidence as a whole does not create a genuine issue of material fact as to whether Odfell=s conduct was so severe and pervasive that it destroyed his ability to succeed in the workplace. See Dillard, 72 S.W.3d at 407 (cumulative effect of offensive behavior bears on determination of work environment; single incidents need not be viewed in isolation); Schwab, 967 S.W.2d at 885. We hold that Odfjell conclusively negated the fourth element of a hostile environment claim, that the harassment affected a term, condition, or privilege of employment. Therefore, we conclude that the trial court properly granted summary judgment on Cerre=s discrimination claim, and we resolve Cerre=s first issue against him. V. Retaliatory Discharge Claim In his second issue, Cerre contends the trial court erred in granting Odfjell=s motion for summary judgment on his claim that Odfjell discharged him in retaliation for his filing a workers= compensation claim under section 451.001. See Tex. Lab. Code Ann. ' 451.001. In its motion for summary judgment, Odfjell asserted that it was entitled to summary judgment because Cerre was fired pursuant to a nondiscriminatory absence-control policy rather than because he filed a workers= compensation claim. To raise a fact issue and preclude summary judgment under Odfjell=s traditional motion for summary judgment, Cerre was required to produce some evidence that but for his filing of a workers compensation claim, his termination would not have occurred when it did. See 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). Odfjell=s policy, which was attached to its motion for summary judgment as summary judgment evidence, states: To assure adequate staffing within our Company, the following absence control policy is in force. When an employee is absent from work, for any reason, for a period of six (6) continuous months, employment will be terminated. Attached to Odfjell=s motion for summary judgment is also the affidavit of Gaylene Webb, Human Resource Manager for Odfjell. In her affidavit, Gaylene explains that Odfjell adopted the absence-control policy in April 1995 and that Cerre was terminated pursuant to the policy.[2] The Texas Supreme Court has held that the uniform enforcement of a reasonable absence-control policy does not constitute retaliatory discharge. See Haggar Clothing Co., 164 S.W.3d at 388; Cazarez, 937 S.W.2d at 450 (stating that an employer who terminates an employee pursuant to the uniform enforcement of a reasonable absence‑control provision will not be liable for retaliatory discharge); Tex. Div.-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 313 (Tex. 1994). If an employee=s discharge is required by the uniform enforcement of a reasonable absence-control policy, it cannot be shown that the employee=s termination would not have occurred when it did but for the employee=s assertion of a workers compensation claim. See Haggar Clothing Co., 164 S.W.3d at 388; Cazarez, 937 S.W.2d at 450; Carrozza, 876 S.W.2d at 313. When an employer produces evidence that the absence-control policy has been uniformly enforced, resulting in the employee=s termination, then no violation of the anti-retaliation statute is shown. See Fenley v. Mrs. Baird=s Bakeries, Inc., 59 S.W.3d 314, 320 (Tex. App.BTexarkana 2001, pet. denied).[3] Cerre produced the following evidence to rebut Odfjell=s reason for his discharge: (1) his affidavit, and (2) his deposition testimony. The gist of Cerre=s rebuttal argument consists of allegations that Odfjell failed to (1) provide evidence of a legitimate nondiscriminatory reason for his discharge, and (2) present conclusive evidence establishing the Areasonableness@ of its policy. Odfjell presented a legitimate nondiscriminatory reason for Cerre=s discharge. Thus, we need not address Cerre=s first contention. The only other argument presented by Cerre involves his assertion that Odfjell has a burden to demonstrate Awith case law@ its clear entitlement to summary judgment on the Areasonableness@ of its policy. Cerre=s concern appears to be that he believes the absence-control policy is unreasonable when applied to individuals who are absent from work due to injuries received on the job. However, Cerre ignores the fact that Texas courts have upheld the application of absence-control policies in other cases where the employees were on leave due to work-related injuries. See Haggar Clothing Co., 164 S.W.3d at 388; Cazarez, 937 S.W.2d at 450; Carrozza, 876 S.W.2d at 313; Cavender v. Houston Distrib. Co., Inc., 176 S.W.3d 71, 72-73 (Tex. App.BHouston [1st Dist.] 2004, pet. denied) (stating A[n]othing in the supreme court's opinions in Cazarez and Carrozza indicates that the court would limit its holding to absence‑control provisions outside workers' compensation leave.@); Alonso v. Stanley Works, Inc., 111 S.W.3d 850, 852 (Tex. App.B Dallas 2003, no pet.). Cerre=s contention that the absence-control policy is not reasonable is not supported by any evidenceBeither direct or circumstantial. An employee=s subjective beliefs are merely conclusions and do not raise a fact issue precluding summary judgment in a retaliatory discharge action. See Casarez, 937 S.W.2d at 451; Carrozza, 876 S.W.2d at 314.[4] We conclude that the summary judgment evidence produced by Cerre did not raise a fact issue regarding Odfjell=s articulated reason for terminating his employment. Cerre presented no evidence showing that his employment was terminated because he filed a workers= compensation claim against Odfjell or even that the claim was a determining factor in his termination. Accordingly, we hold the trial court did not err in granting Odfjell=s motion for summary judgment on Cerre=s retaliatory discharge claim. Cerre=s second issue is overruled. Accordingly, we affirm the judgment of the trial court. _______________________ DORI CONTRERAS GARZA, Justice Memorandum Opinion delivered and filed this the 11th day of May, 2006. [1] Cerre=s claim for discrimination is based on comments allegedly made by unnamed supervisors concerning his injury and his filing a workers= compensation claim. [2] Cerre=s deposition testimony reflects that he received a copy of the employee handbook containing the absence-control policy when he started working at Odfjell. [3] Cerre does not contend the policy is not uniformly enforced. His testimony acknowledges that he is aware of one other woman who was terminated pursuant to the policy and that he is unaware of any other employee who was absent for six months and was not terminated. [4] Cerre also argues that the existence of other circumstantial evidence supports his claim that his termination was a result of his filing a workers' compensation claim. That evidence includes that Odfjell supervisors were aware of his workers' compensation claim and Odfjell=s negative attitude toward his injury. These facts, however, are immaterial because Odfjell established Cerre was terminated pursuant to its uniformly enforced absence‑control policy. See Haggar Clothing Co. v. Hernandez, 164 S.W.3d 386, 388 (Tex. 2005) (circumstantial evidence of causal connection is "immaterial" when employer proves uniform enforcement of absence‑control policy).