Jake A. English v. Dillard Department Stores Inc.

Affirmed and Memorandum Opinion filed November 3, 2005

Affirmed and Memorandum Opinion filed November 3, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00197-CV

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JAKE A. ENGLISH, Appellant

V.

DILLARD DEPARTMENT STORES, INC., Appellee

On Appeal from the 295th District Court

Harris County, Texas

Trial Court Cause No. 02-55432

M E M O R A N D U M   O P I N I O N

Appellant, Jake A. English, appeals the summary judgment granted in favor of appellee, Dillard Department Stores, Inc. (ADillard=s@), on his claim for retaliatory discharge.  In his sole issue on appeal, English claims the trial court erred in granting summary judgment because the evidence demonstrates that his leave of absence did not extend over six months at the time of the termination of his employment with Dillard=s. We affirm. 

On September 25, 1999, English started working for Dillard=s as a delivery driver for its distribution warehouse.  On June 20, 2000, English sustained an on-the-job injury.  English took a ALeave of Absence@ (ALOA@) from his job at Dillard=s. Under Dillard=s LOA policy, the Amaximum length of any such absence is six months, regardless of the reason for the LOA.@ If an employee fails to return to work Aat the end of the 6-month period,@ his employment will be terminated.  On December 22, 2000, Dillard=s terminated English=s employment for failing to return to work from his LOA at the end of the six-month period.

English sued Dillard=s alleging that his termination was in retaliation for filing a workers= compensation claim in violation of the Texas Workers= Compensation Act (the AAct@).^[1]  Dillard=s moved for both traditional and no-evidence summary judgment on English=s retaliatory discharge claim, asserting that it terminated English=s employment pursuant to its neutral LOA policy.  The trial court granted Dillard=s traditional summary judgment. 

To prevail on a motion for summary judgment, a defendant must establish that no material fact issue exists and that it is entitled to judgment as a matter of law.  Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222 (Tex. 1999).  Once the defendant establishes that no genuine issue of material fact exists regarding an element of the plaintiff=s claim, the plaintiff must present competent summary judgment evidence raising a fact issue on that element.  Guest v. Cochran, 993 S.W.2d 397, 401 (Tex. App.CHouston [14th Dist.] 1999, no pet.).  In conducting our review of the summary judgment, we take as true all evidence favorable to the nonmovant, and make all reasonable inferences in the nonmovant=s favor.  KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999).  A defendant, as movant, is entitled to summary judgment if it either disproves at least one essential element of each of the plaintiff=s causes of action or establishes all the elements of an affirmative defense.  American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997). 

The Act prohibits an employer from discharging an employee for filing a workers= compensation claim in good faith.  Tex. Lab. Code Ann. ' 451.001(1).  Section 451.001 is a statutory exception to the common-law employment-at-will doctrine.  Winters v. Houston Chronicle Publ=g Co., 795 S.W.2d 723, 724 n.1 (Tex. 1990). The purpose of the Act is to protect employees entitled to benefits and prevent their discharge because they attempted to collect such benefits.  Carnation Co. v. Borner, 610 S.W.2d 450, 453 (Tex. 1980). 

The elements of a cause of action for retaliatory discharge are (1) an employee, (2) is discharged or discriminated against in any manner, (3) because the employee has filed a workers= compensation claim in good faith, and (4) that Abut for@ the employee=s filing of a workers= compensation claim, the discharge would not have occurred when it did.  Alayon v. Delta Air Lines, Inc., 59 S.W.3d 283, 287 (Tex. App.CWaco 2001, pet. denied).  Thus, the employee must demonstrate that the employer=s action would not have occurred when it did had the employee not filed the workers= compensation claim.  Haggar Clothing Co. v. Hernandez, 164 S.W.3d 386, 388 (Tex. 2005) (per curiam).

As part of his prima facie case, the employee must establish a causal link between the filing of the workers= compensation claim and the discharge.  Wal-Mart Stores, Inc. v. Amos, 79 S.W.3d 178, 186 (Tex. App.CTexarkana 2002, no pet.); Castor v. Laredo Cmty. College, 963 S.W.2d 783, 785 (Tex. App.CSan Antonio 1998, no pet.).  The causal connection may be established by direct or circumstantial evidence.  Polansky v. Southwest Airlines Co., 75 S.W.3d 99, 103 (Tex. App.CSan Antonio 2002, no pet.); Garcia v. Allen, 28 S.W.3d 587, 600 (Tex. App.CCorpus Christi 2000, pet. denied).  Circumstantial evidence that may show the causal link 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 policy, (4) discriminatory treatment in comparison to similarly situated employees, and (5) evidence that the stated reason for the discharge was false.  Continental Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 451 (Tex. 1996); Amos, 79 S.W.3d at 186.  To satisfy this burden, it is not necessary for the employee to show that the sole reason for the discharge was the filing of a workers= compensation claim, but that it was a determining factor in the discharge.  Polansky, 75 S.W.3d at 103; Terry v. Southern Floral Co., 927 S.W.2d 254, 257 (Tex. App.CHouston [1st Dist.] 1996, no writ). 

Once the employee has established the causal link, the burden then shifts to the employer to establish legitimate nondiscriminatory reason for the discharge.  Lozoya v. Air Sys. Components, Inc., 81 S.W.3d 344, 348 (Tex. App.CEl Paso 2002, no pet.); Castor, 963 S.W.2d at 785.  The burden then shifts back to the employee to produce controverting evidence of a retaliatory motive.  Lozoya, 81 S.W.3d at 348; Garcia, 28 S.W.3d at 600.  The retaliatory motive can be established by direct or circumstantial evidence.  Alayon, 59 S.W.3d at 287. 

Dillard=s did not argue in its motion for summary judgment and does not argue on appeal that English did not establish the causal link.  Therefore, we shall assume a fact issue exists on whether there is a causal link. Lozoya, 81 S.W.3d at 348; Polansky, 75 S.W.3d at 103; Terry, 927 S.W.2d at 257. 

Dillard=s moved for summary judgment on the ground that it discharged English pursuant to its neutral LOA policy.  Dillard=s written LOA policy, which is found in its AAssociate Work Rules, General Policies and Benefits,@ states, in relevant part:

Subject to the location=s Attendance Policy, associates must notify their immediate supervisor and/or Management of any absence as soon as possible before the actual absence.  All absences must be approved before the time off may be taken. Any change in the status or length must be communicated to and approved by Management before the expected return date, or the absence immediately becomes >Unauthorized= and subject to disciplinary action, including discharge.

                                                                   *        * *

2.         Leave of Absences (LOA) B any absence in the categories below that will be over one week in duration must be an approved LOA and entered into the on-line system as such, regardless of whether or not a paid benefit such as vacation or sick leave is used.  The LOA start date is the associate=s Last Day Worked + 1. Associates are eligible for a LOA after completing 6 months employment.  Associates with less than 6 months continuous service are eligible for a maximum of one week=s absence for emergencies only. . . . Any LOA request must be pre-approved before it is authorized.  The following absences are valid candidates for an approved LOA.

                                                                   *        * *

c.         On-The-Job-Injuries covered by Workers= Compensation - (6 months employment eligibility is waived) medical absences for on-the-job-injuries are automatically an Approved LOA, starting the first day of the absence.  However such absences MUST be entered on-line as an LOA and appropriate FMLA/LOA forms given to the associate as soon as possible.

3.         Job Placement Upon Return B the Company will make a concerted effort to place the associate in the same or comparable position in the Company at the same rate of pay, but this cannot be guaranteed for all situations.  The maximum length of any such absence is 6 months, regardless of the reason for the LOA. In addition, the maximum cumulative LOA(s) during any 12 month period starting on the first day of LOA is also 6 months (calculation is the same as for FMLA B a rollng 12-month preceding method).  If the associate cannot return to work at the end of the 6-month period, the associate will be terminated.  Any extensions beyond that period may only be permitted after obtaining advance approval from the Corporate Office. Extensions are limited to associates with 10 or more years service with the Company, medically certified as unable to perform any work for any employer.  All benefits (Vacation/Sick Leave) will be paid as appropriate during the LOA.

4.         Unauthorized Absences B any Absence that is not With Pay, or an Approved and documented Leave of Absence (LOA) will be considered >Unauthorized=. Unauthorized Absences are considered violations of the Associate Work Rules (see #2) and are subject to disciplinary action, including discharge.  Failure to return from an LOA by the >expected return date= and/or Doctor=s release date is also >Unauthorized= and subject to immediate discharge.^[2] 

Thus, Dillard=s LOA policy provides the Amaximum length@ of an employee=s LOA is six months, and the employee will be discharged if he does not return to work at the end of the six-month LOA.  Dillard=s LOA policy provides an extension for employees who have been with Dillard=s for a minimum of ten years. 

Attached to its motion for summary judgment is the affidavit of Ed Auffert, Assistant to the Vice President and General Counsel of Dillard=s, Inc.  In his affidavit, Auffert explains that Dillard=s policy on absences, as found in the AAssociate Work Rules, General Policies and Benefits,@ provides that any employee on leave of absence for more than six months will be terminated.  Auffert further states:

8.         Records reflect that Mr. English was injured in an accident on June 20, 2000 and thereafter was on leave of absence. . . . Since he did not return to work within six months of beginning his leave, he was terminated pursuant to the policy discussed in the preceding paragraph. The Separation Data Form states that the termination, on December 22, 2000, was due to Mr. English=s failure to return from leave of absence.

9.                     As part of my job duties, I send a monthly report to Dillard=s operating locations regarding employees who reach the maximum (six months) leave of absence during that month and thus are to be terminated under Dillard=s policy described above.  In early December, I provided such information to the Post Oak store where Mr. English worked and advised that his maximum return date was December 22, 2000. As he did not return to work, he was terminated pursuant to Dillard=s leave of absence policy.

Dillard=s has provided a legitimate reason for discharging English.  An employer is not liable for retaliatory discharge for discharging an employee pursuant to the uniform enforcement of a reasonable absence-control policy.  Haggar Clothing Co., 164 S.W.3d at 388; Texas Div.-Trantor, Inc. v. Carrozza, 876 S.W.2d 312, 313 (Tex. 1994) (per curiam). 

Because Dillard=s has provided a legitimate reason for the discharge, English bears the burden of coming forth with evidence of a retaliatory motive.  Thus, he must produce evidence that would call into question Dillard=s explanation for his discharge, thereby creating a fact issue about its true motive for discharging him.  See Carrozza, 876 S.W.2d at 314. 

English argues his termination was premature because he had not been on LOA for six months when Dillard=s terminated his employment in violation of its own LOA policy.  Thus, he argues this demonstrates that Dillard=s did not apply its LOA uniformly and that Dillard=s discriminated against him by not affording him the same considerations as similarly situated employees.  The discriminatory application of an absence control policy may provide circumstantial evidence of retaliatory conduct.  Haggar Clothing Co., 164 S.W.3d at 389; see also Cazarez, 937 S.W.2d at 451 (AAn employer who terminates an employee for violating such a rule cannot be liable for retaliatory discharge as long as the rule is uniformly enforced.@).

English contends that Dillard=s could not terminate his employment until December 23, 2000, rather than December 22, because the first day of his LOA did not begin until June 23, 2000, not June 22 (as indicated on the ASeparation Data Form@). In support of this assertion, English relies on his AEmployee Injury Entry@ (attached to his response to the motion for summary judgment) showing that his LOA commenced on June 23, 2000.  Therefore, according to English, because his LOA did not start until June 23, 2000, he was not on LOA over six months when he was terminated on December 22, 2000. 

Assuming that Dillard=s terminated English=s employment one day prior to the end of the six-month period, we fail to see how this raises a fact issue on retaliatory motive.  See Miller v. Merlin Express, Inc., No. 04-94-00785-CV, 1995 WL 654558, at *6 (Tex. App.CSan Antonio Nov. 8, 1995, writ denied) (not designated for publication) (rejecting argument that fact that termination form was dated one day prior to actual date of termination was evidence of retaliatory motive). Moreover, English=s statements that the LOA policy was not applied uniformly are not supported by any evidenceCeither direct or circumstantial, but are merely conclusions.  An employee=s subjective beliefs are merely conclusions and do not raise a fact issue precluding summary judgment in a retaliatory discharge action.  Cazarez, 937 S.W.2d at 451; Carrozza, 876 S.W.2d at 314.^[3] 

To further bolster his position that his employment was terminated prematurely, English asserts that at the time of his injury and when he took his LOA, he had accrued a week of combined sick and vacation leave time.  According to English, the six-month LOA period is exclusive of any other available leave time and employees must exhaust accrued sick and vacation leave before taking any unpaid leave.  However, because English did not raise this argument in response to Dillard=s motion for summary judgment, it is waived and cannot serve as a ground for reversal.  See Tex. R. Civ. P. 166a(c) (AIssues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.@); McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341, 343 (Tex. 1993) (explaining that non-movant in summary judgment proceeding must expressly present any issues he contends defeat movant=s entitlement to summary judgment by written answer or response to motion for summary judgment).

An additional matter we must address is the evidence attached to English=s motion for reconsideration of the trial court=s order granting summary judgment that was not submitted in support of his response to the motion for summary judgment.  Rule 166a(c) of the Texas Rules of Civil Procedure states that summary judgment shall be rendered on the summary judgment evidence on file at the time of the hearing, or filed thereafter and before judgment with permission of the trial court.  Tex. R. Civ. P. 166a(c).  Therefore, we may not consider any evidence filed after the trial court had granted summary judgment.  Gandara v. Novasad, 752 S.W.2d 740, 743 (Tex. App.CCorpus Christi 1988, no writ) (stating appellate court would not consider affidavit that was not filed until after granting of summary judgment); Axcell v. Phillips, 473 S.W.2d 554, 560 (Tex. Civ. App.CHouston [1st Dist.] 1971, writ ref=d n.r.e.) (holding it was not abuse of discretion for trial court to refuse to consider evidence filed after it had granted summary judgment).

Also attached as appendices to English=s myriad briefs in this court are numerous documents that are not part of the appellate record.  The attachment of documents as appendices to appellate briefs is not formal inclusion in the record on appeal and, therefore, and will not be considered on appeal.  Nguyen v. Intertex, Inc., 93 S.W.3d 288, 293 (Tex. App.CHouston [14th Dist.] 2002, no pet.); Mitchison v. Houston Indep. Sch. Dist., 803 S.W.2d 769, 771 (Tex. App.CHouston [14th Dist.] 1991, writ denied); see also Guajardo v. Conwell, 46 S.W.3d 862, 864 (Tex. 2001) (per curiam) (stating court would not consider order not included in clerk=s record). 

Thus, in addition to the summary judgment evidence submitted by Dillard=s in support of its motion for summary judgment, the only other evidence we will consider are the exhibits attached to English=s response to Dillard=s motion for summary judgment, which include (1) ADefendant=s Response to Plaintiff=s Addendum Request for Admissions@ (responses to requests 1B7), dated February 3, 2003, (2) ADefendant=s Responses to Plaintiff=s Second Request for Admissions@ (responses to requests 1B6), dated May 2, 2003, (3) ADillard=s Associate Work Rules, General Policies and Benefits,@ (4) English=s ASeparation Data Form,@ (5) a print out of English=s AEmployee Injury Entry,@ and (6) ADefendant=s Objections and Answers to Plaintiff=s Initial Set of Interrogatories to Defendant@ (responses to interrogatories 1B15), dated April 11, 2003. 

Finally, English has requested that we take judicial notice of various matters and documents purportedly raising fact issues.  Because these matters and documents were either not raised in response to Dillard=s motion for summary judgment or are not part of the appellate record, we deny English=s motion to take judicial notice. 

We conclude that Dillard=s established a legitimate nondiscriminatory reason for English=s discharge.  Because English failed to present any controverting evidence of retaliatory motive for his discharge, the trial court did not did err in granting Dillard=s motion for summary judgment.  English=s sole issue on appeal is overruled.^[4] 

Accordingly, the judgment of the trial court is affirmed. 

/s/      J. Harvey Hudson

Justice

Judgment rendered and Memorandum Opinion filed November 3, 2005.

Panel consists of Justices Yates, Anderson, and Hudson.

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^[1]  See Tex. Lab. Code Ann. ' 451.001 (Vernon 1996). 

^[2]  Emphasis in original. 

^[3]  We note that in APlaintiff=s Traverse to Defendant=s Response to Plaintiff=s Motion for Reconsideration of the Summary Judgment Order,@ English complains that Dillard=s Adenied [his] request@ to produce Adocuments that would have shown that the leave of absence was applied in a discriminatory manner . . .@  Attached to English=s ATraverse,@ is a copy of Dillard=s objection to his request for the production of Aassociates who have been terminated for violating the six (6) month leave of absence policy.@  Rule 193.4 of the Texas Rules of Civil Procedure provides that any party may at any reasonable time request a hearing on an objection to a request for discovery.  Tex. R. Civ. P. 193.4.  The record does not show that English requested a hearing on Dillard=s objection to his request for production or otherwise complained to the trial court of Dillard=s refusal to produce until after the trial court had entered a final judgment.  Moreover, he does not raise any complaint on appeal about the lack of production.  It is well-settled that grounds of error not asserted on appeal are waived.  San Jacinto River Auth. v. Duke, 783 S.W.3d 209, 209B10 (Tex. 1990) (per curiam).

^[4]  In his supplemental original petition, English also brought a cause of action for negligence.  Dillard=s did not move for summary judgment on English=s negligence claim. The trial court, nonetheless, granted summary judgment on that claim, stating, APlaintiff=s claims are DISMISSED WITH PREJUDICE.  This is a final judgment and disposes of all claims of all parties.@  The language of the final summary judgment leaves no doubt that the trial court intended that this be a final and appealable judgment. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 206 (Tex. 2001).  Granting a motion for summary judgment on causes of action not addressed in the motion is reversible error.  Mafrige v. Ross, 866 S.W.2d 590, 591 (Tex. 1993), overruled on other grounds by Lehmann, 39 S.W.3d at 204.  However, English does not complain on appeal of the trial court=s granting of summary judgment on his negligence claim, thereby waiving any error.  See Jacobs v. Satterwhite, 65 S.W.3d 653, 655 (Tex. 2001) (per curiam) (holding appellant waived error when he failed to complain on appeal about the granting of summary judgment on professional negligence claim).