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Date: 12-04-2015


Case Number: 14-0410

Judge: Eva Guzman


Plaintiff's Attorney: Ryan Blake Gross

Defendant's Attorney: Mary M. Wagner, Frank N. Luccia

Description: In enacting the Family and Medical Leave Act (FMLA), Congress struck a delicate balance to
accommodate “the demands of the workplace” while promoting the “economic security of families.”
29 U.S.C. § 2601(b)(1). Congress ensured employees were entitled “to take reasonable leave for
medical reasons,” but recognized the economic necessity of accommodating “the legitimate interests
of employers.” 29 U.S.C. § 2601(b)(2)-(3). An equilibrium between these counterpoints is achieved
through the FMLA’s limited guarantee of twelve weeks of job-protected leave. On occasion,
workplace injuries may require employees to take medical leave extending beyond the FMLA’s
protections, but employers may nevertheless manage the resulting burdens on their businesses by
enacting and enforcing reasonable leave policies. If an employee remains on leave beyond twelve
weeks, the employee can be terminated when such a policy requires it, even if the employee has
engaged in protected conduct under the Workers’ Compensation Act. Absent evidence proving the
leave policy was applied in a discriminatory manner or the reason for discharge was pretextual, a
retaliatory discharge claim is not viable. See Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444,
450-51 (Tex. 1996). Because no such evidence was introduced here, I join the Court’s opinion and
holding that Melendez failed to carry his burden of proving retaliatory discharge.
I write separately, however, because I believe it is important to clarify which party bears the
burden of proof in a retaliatory discharge case when sufficient evidence exists that termination resulted
from the uniform enforcement of a reasonable leave policy. The burden of persuasion compels the
result in this case. I further note this issue is squarely presented in Kings Aire’s second appellate point,
which complains about the jury charge but is mooted by the Court’s disposition of the first appellate
Though we have not previously stated so, uniform enforcement of a reasonable leave policy
is an inferential rebuttal defense to a retaliatory discharge claim. When an employer produces
evidence that an adverse employment action resulted from uniform enforcement of a reasonable leave
policy, the employee must prove all the requisite elements of retaliation and disprove the employer’s
claim that termination was based on the leave policy. This burden-shifting scheme exists because,
under the Texas Labor Code, the employee bears the burden of proving that a discharge (or other
adverse action) “occurred ‘because’ of the protected activity.” Cazarez, 937 S.W.2d at 450; see TEX.
LABOR CODE §§ 451.001, 451.002(c). To prove causation, the employee must demonstrate “that the
employer’s action would not have occurred when it did had the employee’s protected conduct—filing
a workers’ compensation claim—not occurred.” Haggar Clothing Co. v. Hernandez, 164 S.W.3d 386,
388 (Tex. 2005).
As we explained in Cazarez, even if an employee has engaged in protected conduct, the
employee cannot establish a causal nexus between protected conduct and termination of employment
if termination was required under a leave policy that is both reasonable and uniformly enforced. 937
S.W.2d at 451. In such circumstances, the employee’s protected conduct is necessarily not the “but
for” cause of the employee’s termination. Id. (“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.”). Though we did not explicitly categorize the leave-policy issue as an
inferential rebuttal defense, it naturally follows.
“An inferential rebuttal defense operates to rebut an essential element of the plaintiff’s case by
proof of other facts.” See Dillard v. Tex. Elec. Coop., 157 S.W.3d 429, 430 (Tex. 2005). In contrast,
an affirmative defense enables a defendant to avoid liability even if the plaintiff successfully proves
all the elements of a cause of action. Tex. Beef Cattle Co. v. Green, 921 S.W.2d 203, 210 (Tex. 1996).
Evidence that an employee was terminated based on uniform enforcement of a reasonable leave policy
rebuts the conclusion that the employee was terminated in retaliation for engaging in protected
conduct. It presents a contrary theory of causation. Accordingly, the leave-policy defense illustrates
the “basic characteristic” of an inferential rebuttal defense; “it presents a contrary or inconsistent
theory from the claim relied upon for recovery.” Select Ins. Co. v. Boucher, 561 S.W.2d 474, 477
(Tex. 1978). A leave-policy defense cannot be treated as an affirmative defense because doing so
would impermissibly shift the burden of causation to the defendant in contravention of the retaliatory
discharge statute. See Zorrilla v. Aypco Constr. II, LLC, 469 S.W.3d 143, 156 (Tex. 2015) (“[T]he
hallmark characteristic of [an affirmative defense] is that the burden of proof is on the defendant to
present sufficient evidence to establish the defense and obtain the requisite jury findings.”).
Properly characterizing the leave-policy defense as an inferential rebuttal defense rather than
an affirmative defense has important implications. In the context of this case, at least two exist.
First, it determines the applicable legal-sufficiency standard. In this case, the Court properly
conducts a no-evidence legal-sufficiency review. And, as the Court ably explains, Melendez failed
to prove that his termination did not result from a uniformly enforced, reasonable leave policy.
Although Melendez obtained a favorable jury finding that he was terminated for filing a workers’
compensation claim, the jury’s finding cannot stand because the record bears no evidence of employer
subterfuge nor evidence that the leave policy was inapplicable or applied in a discriminatory manner.
Cf. Cazarez, 937 S.W.2d at 452 (affirming a jury finding because there was some evidence the
employer’s three-day rule did not apply).
Second, because the inferential rebuttal defense is subsumed in the liability question,
disposition of Kings Aire’s first appellate issue answers its second issue—whether the trial court erred
by not submitting a separate question and instruction to the jury on the leave-policy defense.
Inferential rebuttal defenses cannot be submitted to the jury in separate jury questions. TEX. R. CIV.
P. 277. Instead, inferential rebuttal defenses raised by the evidence “must be presented through jury
instructions.” Bed, Bath & Beyond, Inc. v. Urista, 211 S.W.3d 753, 757 (Tex. 2006); see also Lemos
v. Montez, 680 S.W.2d 798, 800 (Tex. 1984). The trial court did not err in refusing to submit a
separate question on Kings Aire’s leave-policy defense.

Outcome: With these additional thoughts, I join the Court’s opinion and judgment.

Plaintiff's Experts:

Defendant's Experts:


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