Fenley v. Mrs. Baird's Bakeries Inc.

• Decision Date: 02 October 2001
• Docket Number: No. 06-00-00139-CV,06-00-00139-CV
• Citation: 59 S.W.3d 314
• Parties: (Tex.App.-Texarkana 2001) KENNETH C. FENLEY, SR., Appellant v. MRS. BAIRD'S BAKERIES, INC., Appellee
• Court: Texas Court of Appeals

Page 314

59 S.W.3d 314 (Tex.App.-Texarkana 2001)

KENNETH C. FENLEY, SR., Appellant v. MRS. BAIRD'S BAKERIES, INC., Appellee

No. 06-00-00139-CV

Court of Appeals of Texas, Texarkana

Submitted April 2, 2001

Decided October 2, 2001

On Appeal from the 133rd Judicial District Court Harris County, Texas Trial Court No. 199-37798

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Peter Costea, Houston, for appellant.

Clay D. Humphries, Kevin C. Norton, Cantey & Hanger, LLP, Fort Worth, for appellee.

Before Cornelius, C.J., Grant and Ross, JJ.

OPINION

Opinion by Justice Grant

Kenneth C. Fenley, Sr. appeals the trial court's granting of Mrs. Baird's Bakeries, Inc.'s Motion for Summary Judgment in a suit brought under Tex. Lab. Code Ann. § 451.001(1) (Vernon 1996), alleging he was discharged from employment because he had filed a workers' compensation claim in good faith.

The trial court did not specify the grounds on which it granted summary judgment. Fenley raises one issue on appeal, that the trial court erred in granting Mrs. Baird's Motion for Summary Judgment. He will, therefore, be permitted to argue as to all possible grounds upon which summary judgment should have been denied. See Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970).

Fenley's petition alleges that he was discharged and discriminated against because he filed a good-faith workers' compensation claim. He also contends that the alleged policy of Mrs. Baird's under which he was fired had a "disparate impact" on him, which he contends is also sufficient to establish a discriminatory motive, in violation of Section 451.001(1).

The summary judgment proof shows the following:

Fenley was continuously employed at the bakery plant in Houston from August 1984 until July 1997. He was initially employed as a helper, loading pans and loading the ovens. His last job before termination was that of a machine operator, which required that he take pans from a cart, put them on a machine, set up the machine, and run the pans through it. Fenley suffered at least six on-the-job injuries during his period of employment. Some of these injuries required that he miss substantial amounts of work. He filed workers' compensation claims for all of them. In each of these prior instances, he was permitted to return to work and was not terminated as a result. The present litigation involved an elbow injury, which occurred in August 1996 when he fell off of a ladder next to his machine. On October 28, 1996, Mrs. Baird's pointed out to Fenley the history of his prior on-the-job injuries and told him:

Kenneth, it is your responsibility to perform your duties in a safe manner and avoid having accidents. It is also your responsibility to be available for fulltime [sic] unrestricted work and not miss work, especially for extended periods of time.

In the future, further acts of carelessness or your unavailability for fulltime [sic] unrestricted work, action up to and including termination may be taken against you.

In June 1997, Mrs. Baird's, in a memorandum, reminded Fenley that he had missed a considerable amount of work since his last injury. He was asked to provide it with an estimated date as to when he would return to work and whether he anticipated having restrictions on his ability to perform his job. He was given thirty days to either return to work or make satisfactory arrangements, and for his doctor to provide a definite time when Fenley could return to work. Mrs. Baird's terminated Fenley by letter dated July 28, 1997, stating that the termination was effective July 27, 1997, because neither he nor his doctor could supply the company with a date on which Fenley would return to work.

In the affidavit of Jerry Land, human relations manager for Mrs. Baird's Houston plant, submitted by Mrs. Baird's in support of its Motion for Summary Judgment, he states that Fenley was not terminated because he filed workers' compensation claims, but pursuant to its policy limiting the time employees could take leaves of absence to six months. In support of its position that limitations on unexcused absences were part of ongoing company policy, Mrs. Baird's, as summary judgment evidence, submitted copies of letters sent to five different employees terminating them for excessive absences. Four of the five letters were sent to employees who, Land asserts in his affidavit, were not workers' compensation claimants. In his written responses to Mrs. Baird's written interrogatories, Fenley stated that he was finally cleared by his doctor to return to unrestricted work on January 14, 1998. In Fenley's deposition, submitted as summary judgment evidence, he was unable to supply specific facts to support his contention that he was discharged for filing workers' compensation claims. Fenley also stated that he was not aware of the existence of this "policy" at Mrs. Baird's.

Standard of Review-Summary Judgment

The standard of review of the trial court's granting of a motion for summary judgment is 1) the movant must show that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law; 2) in deciding whether there is a disputed material fact issue precluding summary judgment, the court must take evidence favorable to the nonmovant as true; and 3) the court must indulge every inference in favor of the nonmovant and resolve any doubts in the nonmovant's favor. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985); Castellow v. Swiftex Mfg. Corp., 33 S.W.3d 890, 894 (Tex. App. Austin 2000, no pet.); see Tex. R. Civ. P. 166a(c). When a defendant is the movant for summary judgment, it has the burden to conclusively negate at least one essential element of the plaintiff's cause of action, or conclusively establish each element of an affirmative defense. Kiser v. Original, Inc., 32 S.W.3d 449, 451 (Tex. App. Houston [14th Dist.] 2000, no pet.); Smith v. SCI Mgmt. Corp., 29 S.W.3d 264, 266 (Tex. App. Houston [14th Dist.] 2000, no pet.). Once the defendant produces evidence that entitles it to a summary judgment, the plaintiff must produce evidence that raises a fact issue. Conclusory statements do not constitute such evidence. Butler v. Cont'l Airlines, Inc., 31 S.W.3d 642, 653 (Tex. App. Houston [1st Dist.] 2000, no pet.).

Texas Law Prohibiting Retaliatory Discharge/Discrimination

Tex. Lab. Code Ann. § 451.001 (Vernon 1996) provides:

A person may not discharge or in any other manner discriminate against an employee because the employee has:

(1) filed a workers' compensation claim in good faith;

(2) hired a lawyer to represent the employee in a claim;

(3) instituted or caused to be instituted in good faith a proceeding under Subtitle A; or

(4) testified or is about to testify in a proceeding under Subtitle A.

(Emphasis added.)

This section is a statutory exception to the Texas common-law doctrine of employment at will. Burfield v. Brown, Moore & Flint, Inc., 51 F.3d 583, 589 (5th Cir. 1995). Unless one of the four specific circumstances enumerated was the motivating factor in discharging or discriminating against the employee, that employee cannot prevail on a claim based on this article. Terry v. S. Floral Co., 927 S.W.2d 254, 257 (Tex. App. Houston [1st Dist.] 1996, no writ). In pursuing a claim under Section 451.001, the plaintiff has the burden of establishing a causal connection between the filing of a workers' compensation claim and his or her discharge or other adverse action taken by his or her employer. Piper v. Kimberly-Clark Corp., 970 F. Supp. 566, 574 (E.D. Tex. 1997). The employee may show causation by direct or circumstantial evidence and by the reasonable inferences which may be drawn from such evidence. Burfield, 51 F.3d at 590. Once the causal link is established, the employer may rebut the plaintiff's showing by demonstrating that the discharge was actually for a reason not related to the plaintiff's pursuit of workers' compensation benefits. Piper, 970 F.Supp. at 574.

In order to survive an employer's motion for summary judgment in such a case, the burden then shifts back to the employee to produce controverting evidence of a retaliatory motive. Terry, 927 S.W.2d at 257.

Fenley correctly argues that the employer's state of mind is one of the controlling elements in an employment discrimination suit, an element difficult of direct proof. United States Postal Serv. Bd. of Governors v. Aikens, 406 U.S. 711, 716, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983). When state of mind is such an essential element, it is often not well-suited for disposition by summary judgment because a party's state of mind is inherently a question of fact which turns on credibility, a matter within the province of the fact finder, i.e., the jury. Int'l Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1265 (5th Cir. 1991); see also Hunt v. Cromartie, 526 U.S. 541, 543, 119 S.Ct. 1545, 143 L.Ed.2d 731, 742 (1999). However, summary judgment may be appropriate even in instances where such elusive concepts as motive or intent are at issue, if the nonmoving party rests merely on conclusory allegations, improbable inferences and unsupported speculation. Int'l Shortstop, Inc., 939 F.2d at 1266.

Case law supports Mrs. Baird's argument that an employee's discharge resulting from an employer's uniform application of a reasonable absence-control policy does not constitute a retaliatory discharge. In Texas Div.-Tranter, Inc. v. Carrozza, 876 S.W.2d 312 (Tex. 1994), in response to an employee's action under Section 451.001(1), defendant-employer's summary judgment evidence included affidavits of supervisory and administrative personnel to the effect that plaintiff-employee's termination was prompted by application of a "three-day rule," i.e., mandatory termination of an employee who, without special circumstances, was absent three consecutive days without receiving permission or giving notice. Id. at 313. The affidavits in Carrozza were...