Date: 07-13-2017

Case Style: Deborah Brothers v. LQ Management LLC, LQ TX Properties, LLC a/k/a BRE/LQ TX Properties, LLC and LA Quinta, L.L.C.

Case Number: 14-16-00655-CV

Judge: Tracy Christopher

Court: Texas Court of Appeals, Fourteenth District on appeal from the 157th District Court of Harris County

Plaintiff's Attorney: Dax Faubus for Deborah Brothers

Defendant's Attorney: Rebecca M. Rabago, Robin Clay Hoblit and Roberta S. Dohse for LQ Management LLC, LQ TX Properties, LLC a/k/a BRE/LQ TX Properties, LLC and LA Quinta, L.L.C.

Description: This is an appeal from a summary judgment rendered on behalf of an employer in a wrongful-termination suit. The employee argued that her termination was based on the filing of a workers’ compensation claim, but her employer countered that the termination was based on the employee’s violation of a uniformly enforced absenteeism policy. The ultimate issue for this court to decide is whether the employee presented more than a scintilla of evidence to show that
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her termination was not the result of the employer’s absenteeism policy. Because the employee presented no evidence on that point, we conclude that the employer is entitled to judgment as a matter of law. We therefore affirm the trial court’s judgment in favor of the employer.
BACKGROUND
Deborah Brothers worked for La Quinta as a housekeeper. On June 14, 2013, she was mauled at work by a pit bull belonging to one of the hotel’s guests. The pit bull scarred Brothers’s face, damaged her teeth, and lacerated her arms.
After her discharge from the hospital, Brothers was treated by Dr. Carlos Murillo, a plastic surgeon who accepted patients under La Quinta’s workers’ compensation plan. During an office visit on July 24, Dr. Murillo determined that Brothers’s wounds had closed and that a scar revision of her facial injury was possible, depending on future healing.
Brothers expressed a concern to Dr. Murillo about her return to work, which was tentatively scheduled for August 24. Brothers was specifically worried that her facial injury might be exacerbated by an exposure to cleaning chemicals. Dr. Murillo responded that her wound would not be affected by airborne chemicals because the wound had already closed. Dr. Murillo also explained that “it would be impossible for [him] to extend her release based on the facial scar alone.” After the examination, Dr. Murillo submitted a form to the Division of Workers’ Compensation, in which he opined that Brothers’s injury would prevent her from working until August 24.
On the same day as the examination with Brothers, Dr. Murillo received a call from one of La Quinta’s case managers, who inquired about when Brothers could return to work. Even though Dr. Murillo had just recently decided that
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August 24 would be a suitable return date, he told the case manager that Brothers could “probably” return to work as soon as August 6. Dr. Murillo believed that this earlier date might actually be better for Brothers, because he would then know at Brothers’s follow-up appointment “how she reacted at work and how the wound reacted to work.” After his call with the case manager, Dr. Murillo submitted a revised form to the Division of Workers’ Compensation, clearing Brothers to return to work without restrictions on August 6.
Even though Brothers had been cleared to return to work on August 6, La Quinta did not put her back on the work schedule until several weeks later. Before then, on August 15, Brothers met with Dr. Edwin Taegel, an orthopedic surgeon, for the limited purpose of deciding whether Brothers had reached maximum medical improvement. Dr. Taegel found that Brothers had reached maximum medical improvement for some of her injuries, but not for the injury to her face. Dr. Taegel also agreed with Dr. Murillo’s assessment that Brothers was still capable of returning to work as of August 6.
Between August 20 and August 27, a representative from La Quinta’s corporate offices made several attempts to contact Brothers by phone. All of these contacts were unanswered until August 28, when Brothers called back to ask about the status of her workers’ compensation benefits. The representative informed Brothers that coverage decisions are made by the insurance carrier, not by La Quinta. The representative also advised Brothers of records indicating that she had been cleared to return to work.
That same day, on August 28, Brothers revisited Dr. Murillo, who again determined that she was able to return to work.
The general manager of the La Quinta hotel where Brothers had worked reached out to Brothers on August 29 and August 30. On both occasions, the
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general manager called and left a message saying she had been advised that Brothers was able to return to work. Brothers did not respond, nor did she return to work.
On September 4, the general manager mailed a letter to Brothers, saying that if she did not return to work by September 6, the general manager would assume that Brothers had resigned. Brothers called the general manager on September 5, saying that she was unable to return because she was too scared to be on the property. Brothers also requested cross-training for another position.
Brothers never returned to work, and on September 10, La Quinta formally terminated her position.
Brothers then sued La Quinta, alleging that she was wrongfully terminated in retaliation for having submitted a workers’ compensation claim. La Quinta denied that allegation and moved for summary judgment on traditional and no-evidence grounds.
In the traditional portion of its motion, La Quinta argued that the termination was not retaliatory. La Quinta referred to a company policy that stated that any employee who missed two consecutive shifts was subject to termination. La Quinta also argued that the evidence conclusively established that Brothers had violated this policy after she had been cleared to return to work.
In the no-evidence portion of its motion, La Quinta asserted that Brothers could produce no evidence showing that La Quinta’s absenteeism policy had not been uniformly enforced.
In her response, Brothers argued that summary judgment would be improper because the evidence showed that La Quinta had directly interfered with Dr.
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Murillo’s medical judgment by manipulating the date upon which he had cleared Brothers to return to work.
The trial court granted La Quinta’s motion, and this appeal followed.
ANALYSIS
The Texas Workers’ Compensation Act prohibits an employer from discharging an employee for filing a workers’ compensation claim in good faith. See Tex. Lab. Code § 451.001(1). If an employee is wrongfully discharged in violation of the Act, the employee may recover reasonable damages against her employer. Id. § 451.002(a). The burden of proving a violation rests with the employee. Id. § 451.002(c).
The employee need not establish that her discharge was based solely on the filing of her workers’ compensation claim, but she must show that the filing of her claim was at least a determining factor in the discharge. See Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 451 n.3 (Tex. 1996) (“The report need not be the employer’s sole motivation, but it must be such that without it the discriminatory conduct would not have occurred when it did.”). Once the employee establishes this causal link, the burden shifts to the employer to establish a legitimate, nondiscriminatory reason for the discharge. Id. at 451. If the employer can provide such a reason, then the burden shifts back to the employee to produce controverting evidence of a retaliatory motive. See Tex. Division-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 313–14 (Tex. 1994) (per curiam).
Without conceding that Brothers could actually establish a causal link between the filing of her workers’ compensation claim and her discharge, La Quinta moved for a traditional summary judgment, arguing that the discharge was not retaliatory as a matter of law.
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As the movant for a traditional summary judgment, La Quinta had 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. See Tex. R. Civ. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). A movant is entitled to summary judgment only if it conclusively establishes every essential element of its claim or defense as a matter of law. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). When deciding whether the movant has met this burden, we consider all of the evidence in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if a reasonable factfinder could, and disregarding contrary evidence unless a reasonable factfinder could not. See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006).
La Quinta argued that it discharged Brothers because Brothers had violated a uniformly enforced absenteeism policy, not because Brothers had filed a workers’ compensation claim. Absent controverting evidence, the “uniform enforcement of a reasonable absence-control provision . . . does not constitute retaliatory discharge.” See Carrozza, 876 S.W.2d at 313–14. “If an employee’s termination is required by the uniform enforcement of a reasonable absentee policy, then it cannot be the case that termination would not have occurred when it did but for the employee’s assertion of a compensation claim or other conduct protected by section 451.001.” Cazarez, 937 S.W.2d at 451.
La Quinta attached to its motion an employee handbook, which established that La Quinta had an absenteeism policy. That policy provided as follows:
Failure to report (no-call/no-show)
If you fail to report to work, it will be considered a “no-call/no-show.” Similarly, if you fail to notify your immediate supervisor at least two hours in advance of your scheduled shift that you will be absent from
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work, it will be considered a “no-call/no-show.” Should either occur for two consecutive scheduled days, the Company will consider you to have voluntarily quit.
Two instances of “no-call/no-show” during a rolling 12-month period will result in termination of employment. However, during the first 90 days of employment, one instance of “no-call/no-show” will result in termination of employment.
La Quinta also produced summary-judgment evidence showing that Brothers had missed consecutive days of work after she had been cleared to return to work. For example, La Quinta’s general manager attested by affidavit that she had reached out to Brothers about returning to work. The general manager attested that she left voicemail messages with Brothers on August 29 and August 30, after two different doctors had decided that Brothers could return to work.
The general manager also attested that she had sent Brothers a letter on September 4, advising Brothers that if she did not return to work by September 6, then the general manager would assume that Brothers had resigned. The general manager attested that Brothers never returned to work, and Brothers produced no evidence disputing either that point or the existence of La Quinta’s absenteeism policy. Thus, La Quinta conclusively established a legitimate, nondiscriminatory reason for discharging Brothers, which shifted the burden back to Brothers to produce controverting evidence of a retaliatory motive.
La Quinta moved for summary judgment on that point as well, asserting that Brothers could produce no evidence that La Quinta’s absenteeism policy was not uniformly enforced.
In a no-evidence motion for summary judgment, the movant (here, La Quinta) represents that there is no evidence of one or more essential elements of the claims for which the nonmovant (here, Brothers) bears the burden of proof at trial. See Tex. R. Civ. P. 166a(i); Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310
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(Tex. 2009). The burden then shifts to the nonmovant to present evidence raising a genuine issue of material fact as to the elements specified in the motion. See Mack Trucks, 206 S.W.3d at 582. We will sustain a no-evidence summary judgment when (1) there is a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence conclusively establishes the opposite of the vital fact. See City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005).
Brothers did not present any evidence that La Quinta’s absenteeism policy was not uniformly enforced. In her response, Brothers merely argued that La Quinta was not entitled to summary judgment because La Quinta had “coerc[ed]” and “manipulat[ed]” Dr. Murillo into changing the date on which Brothers could return to work from August 24 to August 6. This argument is unpersuasive for two reasons.
First, Brothers was not terminated for failing to return to work between August 6 and August 24. The evidence shows that La Quinta did not even attempt to put Brothers back on the work schedule until after August 28.
Second, even when viewed in the light most favorable to Brothers, the evidence of “coercion” and “manipulation” supports, at most, a causal link between Brothers’s filing of a workers’ compensation claim and her termination. This evidence is “immaterial” to the extent that Brothers’s termination was required by the uniform enforcement of La Quinta’s absenteeism policy. See Haggar Clothing Co. v. Hernandez, 164 S.W.3d 386, 388 (Tex. 2005) (per curiam) (evidence that plant managers were under economic pressure to minimize workers’ compensation claims was “immaterial” and did not negate evidence that the
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employee’s termination was the result of a uniformly enforced absenteeism policy).
Because Brothers presented no evidence that La Quinta did not uniformly enforce its absenteeism policy, we conclude that La Quinta established that it is entitled to judgment as a matter of law.

Outcome: The trial court’s judgment is affirmed.

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