Kenneth Montgomery v. Valerus Compression Services, LP

Opinion issued July 28, 2011.

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-10-00716-CV

———————————

Kenneth Montgomery , Appellant

V.

Valerus

Compression Services, LP , Appellee

On Appeal from the 412th District Court

Brazoria County, Texas

Trial Court Case No. 51020

MEMORANDUM OPINION

Kenneth

Montgomery sued his employer Valerus Compression Services, L.P., alleging

wrongful termination in retaliation for his filing of a workers’ compensation

claim. The trial court granted Valerus’s

traditional and no-evidence motion for summary judgment. Montgomery contends that the trial court

erred in granting summary judgment because he presented sufficient evidence on

all the elements of retaliation to satisfy a prima facie case, a fact issue

exists on the causation element, and his damage claims are not barred as a

matter of law.

We

affirm.

Background

On March 29, 2007, Montgomery

injured his neck and shoulder on his left side after a fall in the course of

his employment as an assembler in a Valerus manufacturing facility. Valerus documented the accident and its

carrier paid Montgomery worker’s compensation benefits for his injury.

Montgomery saw a doctor three days

after the accident who released him to return to work that day with

restrictions that he not lift, push, pull, reach, climb stairs or ladders. The physician ordered him to keep his

shoulder elevated and apply regular cool compresses. Montgomery saw a second doctor the following

day who released him to work with the additional restrictions that he avoid

grasping and wrist extension. These

restrictions conflicted with the job description for an assembler which

included that the employee must be able to lift 50 pounds periodically and lift

25-35 pounds regularly. Occasionally, an

employee must also be able to bend, squat, climb, twist and reach.

Montgomery sporadically returned to

work on light duty between April 4, 2007 and April 19, 2007. In his affidavit, Montgomery testified that

his light duty included wiring skids and tightening bolts one-handed. When Montgomery complained to his supervisor

that the work hurt his shoulder, his supervisor cursed at him and told him to

go home because “We can’t use you if you can’t do what I want.” Montgomery states that Valerus frequently

sent him home early after he complained.

On April 19, 2007, Montgomery’s

doctor issued a report stating that the injury prevented Montgomery from

returning to work. The report did not

specify restrictions or a projected date to return. An August 2007 medical evaluation by the

insurance carrier’s physician found that Montgomery had reached his maximum

level of medical improvement with a 10% whole person impairment rating. The physician’s report stated that Montgomery

could not perform his previous heavy labor job, but that he had full use of his

right arm and could be retrained for a clerical or otherwise less physical job.

Montgomery

never returned to work after April 19, 2007.

In addition to his workers’ compensation benefits, he received long-term

disability benefits through his insurance coverage with Valerus and applied for

social security disability benefits.

Jim

Nicholson, the newly appointed vice president of human resources for Valerus,

began reviewing the status of employees on extended leave in April 2008. Nicholson testified in his affidavit that his

review took several months and included eight injured employees, four with

workers’ compensation claims and four without workers’ compensation

claims. According to his affidavit,

Valerus placed Montgomery on medical leave after his physician reported on

April 19 that he was physically unable to work.

Nicholson made the decision to terminate all eight employees as a result

of his review and fired Montgomery on April 15, 2008, almost a year after his

doctor reported that his injury prevented him from working. The termination report listed the termination

as “for cause,” and stated that Montgomery was “on leave of absence and unable

to return back to work.” In his

affidavit, Montgomery testified that Valerus never notified him of his

termination or of the opportunity to reapply with the company. He testified that a human resources employee

told him that she forgot to mail the paperwork.

Montgomery

sued Valerus for retaliation alleging that Valerus discriminated against him

and fired him as a result of his workers’ compensation claim. Valerus filed a traditional and no-evidence

motion for summary judgment and asserted that Montgomery could not show a

causal link between his workers’ compensation claim and his termination, prove

that Valerus’s non-discriminatory reason for his termination was false, or

demonstrate Valerus’s retaliatory motive.

It also argued that even if Montgomery could satisfy these requirements

for a retaliation claim, he could not recover lost wages for the time he has

been unable to work or punitive damages without evidence of malice on Valerus’s

part.

As summary judgment evidence,

Valerus relied on a job description for an assembler, the August 2007

evaluation stating he had a permanent impairment rating at 10%, and several

reports from Montgomery’s doctors detailing his injury and restrictions. Nicholson testified in his affidavit that he

made his decision to terminate Montgomery based on the doctors’ reports,

Valerus’s leave of absence policy, and Montgomery’s extended absence from work

for more than three months. He concluded

that the medical records indicated that Montgomery was unlikely to return to

work in the foreseeable future.

Nicholson testified that Montgomery was not fired because of his

workers’ compensation claim.

Valerus provided two versions of

the employee handbook as summary judgment evidence. Both state Valerus’s policy to evaluate

extended leave at any time or at least every six months. [1] The handbooks state that Valerus provides

qualifying employees with 12 weeks of leave.

After 12 weeks, the employee may be terminated.

Montgomery responded to Valerus’s

summary judgment motion and asserted that he satisfied the requirements to show

a prima facie case of workers’ compensation retaliation and that he raised a

fact issue that Valerus’s stated reason for the termination was pretextual. As summary judgment evidence, Montgomery

relied on his deposition and affidavit testimony in which he stated he could

have continued to perform assembly work with the accommodation of a helper

because he rarely had to lift heavy objects.

He also testified to verbal harassment by his supervisors.

The trial court granted Valerus’s

motion for summary judgment. Montgomery

timely filed this appeal.

Standard of Review

We review a trial court’s summary judgment de novo. Travelers Ins. Co. v. Joachim , 315 S.W.3d 860, 862 (Tex. 2010) . If a trial court grants summary judgment

without specifying the grounds for granting the motion, we must uphold the

trial court’s judgment if any of the grounds are meritorious. Beverick

v. Koch Power, Inc. , 186 S.W.3d 145, 148 (Tex. App.—Houston [1st Dist.]

2005, pet. denied). The motion must state the specific

grounds relied upon for summary judgment.

See Tex. R. Civ. P. 166a(c), (i); Timpte Indus., Inc. v. Gish , 286 S.W.3d 306, 310 (Tex. 2009) . When

reviewing a summary judgment motion, we must (1) take as true all evidence

favorable to the nonmovant, and (2) indulge every reasonable inference and

resolve any doubts in the nonmovant’s favor.

Valence Operating Co. v. Dorsett , 164 S.W.3d 656, 661 (Tex. 2005); Provident Life Accid. Ins.

Co. v. Knott , 128 S.W.3d

211, 215 (Tex. 2003).

A party seeking summary judgment may combine in a single motion a request

for summary judgment under the no-evidence standard with a request under the

traditional summary judgment standard. Binur v. Jacobo , 135 S.W.3d 646, 650

(Tex. 2004). When a

party has filed both a traditional and no-evidence summary judgment motion and

the order does not specify which motion was granted, we typically first review

the propriety of the summary judgment under the no-evidence standard. See Tex. R. Civ. P. 166a(i); s ee

Ford Motor Co. v. Ridgway ,

135 S.W.3d 598, 600 (Tex. 2004). If the

no-evidence summary judgment was properly granted, we need not reach arguments

under the traditional motion for summary judgment. See Mack Trucks, Inc. v. Tamez , 206 S.W.3d 572, 600 (Tex. 2006).

To prevail on a no-evidence motion for summary judgment, the

movant must establish that there is no evidence to support an essential element

of the nonmovant’s claim on which the nonmovant would have the burden of proof

at trial. See Tex. R. Civ. P.

166a(i); Hahn v. Love , 321 S.W.3d

517 , 523–24 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). The burden then shifts to the nonmovant to

present evidence raising a genuine issue of material fact as to each of the

elements specified in the motion. Mack

Trucks , 206 S.W.3d at 582 ; Hahn , 321 S.W.3d at 524 .

In a traditional summary judgment

motion, the movant has

the burden to show that no genuine issue of material fact exists and that the

trial court should grant judgment as a matter of law. Tex.

R. Civ. P. 166a(c); KPMG Peat Marwick v. Harrison Cnty. Hous. Fin.

Corp. , 988 S.W.2d 746, 748

(Tex. 1999). A defendant moving for

traditional summary judgment must conclusively negate at least one essential

element of each of the plaintiff’s causes of action or conclusively establish

each element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez , 941 S.W.2d 910, 911 (Tex.

1997).

Workers’ Compensation Retaliation

In his sole issue on appeal,

Montgomery contends the trial court erred in granting Valerus’s traditional and

no-evidence summary judgment motion. He

asserts that summary judgment was improper because he presented sufficient

evidence on all the elements of retaliation to satisfy his prima facie case, a

fact issue exists on causation despite Valerus’s non-discriminatory reason for

its actions, and Valerus did not negate his damage claims as a matter of

law.

A. Retaliation

& Burden Shifting

Labor

Code section 451.001 states that an employer may not discharge, or in any other

manner discriminate, against an employee because that employee has filed a

workers’ compensation claim in good faith.

See Tex. Lab. Code Ann. § 451.001 (West 2010); Terry v. S. Floral Co. , 927 S.W.2d 254 ,

256–57 (Tex. App.—Houston [1st Dist.] 1996, no writ). The purpose of the statute is to protect a

person entitled to workers’ compensation benefits from retaliation for

exercising their statutory rights. See Terry , 927 S.W.2d at 256 . An employee who shows a violation of section

451.001 may recover “reasonable damages incurred by the employee as a result of

the violation.” Tex. Lab. Code Ann. § 451.002 (West 2010).

“An employee asserting a violation

of section 451.001 has the initial burden of demonstrating a causal link

between the discharge and the filing of the claim for workers’ compensation

benefits.” Terry , 927 S.W.2d at 257 .

The employee does not need to show that the workers’ compensation claim

was the sole reason for the employer’s conduct, only that but for the filing of

the claim, “the employer’s action would not have occurred when it did had the

report not been made.” Cont’l Coffee Prod. Co. v. Cazarez , 937

S.W.2d 444, 450 (Tex. 1996) (applying standard of proof for causation in

whistleblower actions to anti-retaliation claims under workers’ compensation); Turner v. Precision Surgical, L.L.C. ,

274 S.W.3d 245, 252 (Tex. App.—Houston [1st Dist.] 2008, no pet.); Terry , 927 S.W.2d at 257 . An employee may prove the causal link by

direct or circumstantial evidence. Jenkins v. Guardian Indus. Corp. , 16

S.W.3d 431, 441 (Tex. App.—Waco 2000, pet. denied). Circumstantial evidence of the causal link

includes:

(1) knowledge of the compensation claim by those making the

decision on termination; (2) expression of a negative attitude towards the

employee’s injured condition; (3) failure to adhere to established company

policies; (4) discriminatory treatment in comparison to similarly situated

employees; and (5) evidence that the stated reason for the discharge was false.

Cont’l

Coffee Prod. , 937 S.W.2d at 451 ; Benners v. Blanks Color Imaging, Inc. , 133 S.W.3d 364, 369 (Tex.

App.—Dallas 2004, no pet.).

Once

the employee establishes the causal link, the burden shifts to the employer to

rebut the alleged discrimination by showing a legitimate, non-discriminatory

reason for its actions. Terry , 927 S.W.2d at 257 . If the employer demonstrates a legitimate,

non-discriminatory reason, then the burden shifts back to the employee “to

produce controverting evidence of a retaliatory motive.” Id.

(citing Tex. Div.-Tranter, Inc. v.

Carrozza , 876 S.W.2d 312, 314 (Tex. 1994)).

Summary judgment is proper if the employee fails to produce

controverting evidence. Id. (affirming summary judgment for employer

because employee failed to produce evidence of retaliatory motive to rebut

employer’s neutral reason for firing her); Benners ,

133 S.W.3d at 369, 372 (holding summary judgment proper because employee failed

to raise a fact issue on retaliatory motive); Castor v. Laredo Cmty. Coll. , 963 S.W.2d 783 , 785­–86 (Tex.

App.—San Antonio 1998, no pet.) (holding employee failed to raise fact issue on

retaliatory motive despite indulging all inferences in his favor).

B.

Uniform Absentee Policy

Montgomery

maintains that he raised a fact issue on causation sufficient to show a causal

link and to negate Valerus’s alleged non-discriminatory reason for his

termination. “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 . . .

.” Cont’l

Coffee Prod. , 937 S.W.2d at 451 . In

other words, summary judgment is proper if the employee’s absence exceeded the

employer’s leave of absence policy and the employer enforced the policy

uniformly. See id. ; Larsen v. Santa Fe

Indep. Sch. Dist. , 296 S.W.3d 118, 132 (Tex. App.—Houston [14th Dist.]

2009, pet. denied) (holding summary judgment proper because employee did not

controvert employer’s summary judgment evidence by showing employer applied

absence policy differently to similarly situated employees); Hardy v. AAA Cooper Transp., Inc. , No.

01-02-00872-CV, 2003 WL 22451367 , at *3 (Tex. App.—Houston [1st Dist.] Sept.

11, 2003, no pet.) (same); Page v. Fort

Bend Indep. Sch. Dist. , No. 01-02-00675-CV, 2002 WL 31771439 , at *2–3 (Tex.

App.—Houston [1st Dist.] Dec. 12, 2002, no pet.) (holding summary judgment

proper because there was no evidence that absence policy was not uniformly

applied despite employees allegations that employer expressed negative attitude

towards her impairment by refusing to honor light-duty restrictions and

rudeness of fellow employees).

Montgomery

had the burden to show that Valerus would not have terminated him but for his

filing a workers’ compensation claim. See Cont’l Coffee Prod. , 937 S.W.2d at

450 ; Terry , 927 S.W.2d at 257 . The absence policy in Valerus’s employee

handbook provides, “If, for any reason, a leave of absence continues beyond a

three (3) month period, the individual’s employment status may be terminated

unless such termination would be a violation of any applicable federal, state

or local law.” [2] Montgomery failed to demonstrate that Valerus

did not uniformly apply its leave of absence policy. He did not identify a single Valerus employee

on extended leave of absence who had not filed a worker’s compensation claim

but had been retained by Valerus.

Montgomery relies on his affidavit testimony that a “similarly situated

employee would be an uninjured Assembler.

A similarly situated employee would not be given work that was

inconsistent with his physical limitations or that would slow or hamper his

recovery.” Montgomery also relies on his

deposition testimony in which he identified two employees, one unnamed and one

referred to only as “Mike,” as on a leave of absence for non-work related

injuries. But the record does not

indicate what happened to these employees, if they were terminated, how long

they had been on leave without termination, or how Valerus treated Montgomery

differently. Montgomery’s references in

his affidavit and deposition do not identify similarly situated employees to

demonstrate that Valerus did not uniformly apply its absence policy. See

Haggar Clothing Co. v. Hernandez , 164

S.W.3d 386 , 388–89 (Tex. 2005) (holding employee’s controverting evidence no

more than a scintilla because similarly situated employee too different from

plaintiff employee because terminated two years after plaintiff, never received

salary while on leave like plaintiff did, and never returned to work); Benners , 133 S.W.3d at 372 (stating

employee failed to controvert employers non-discriminatory reason because

failed to produce evidence that other employees were treated differently in job

assignments and overtime); Larsen ,

296 S.W.3d at 132 (holding summary judgment proper where employee presented no

evidence of similarly situated employees treated differently from plaintiff).

Further, the record supports

Valerus’s contention that it uniformly applied its absence policy. Nicholson testified in his affidavit that his

review resulted in the firing of eight employees on leave, but that four of

those employees had filed workers’ compensation claims and four had not. He then went on to list 12 employees who had

filed workers’ compensation claims and then returned to work. Montgomery does not refute this evidence nor

does he identify any other employees to demonstrate Valerus’s alleged unequal

treatment of them under its policy.

Based on this record, Montgomery did not raise a fact issue on whether

Valerus applied its absence policy in a discriminatory manner. See

Hardy , 2003 WL 22451367 , at *3 (holding employee did not controvert

employer’s non-discriminatory reason because no evidence of any other employees

absent for more than a year and not terminated). Cf.

Cont’l Coffee Prod. , 937 S.W.2d at

451–52 (holding employer did not uniformly apply absence policy stating that

employer may fire employee if she has not reported to work in three days

because employee presented some evidence that she reported to employer within

three days of termination).

Montgomery

contends that he raised a fact issue that the employment policy was not the

sole reason for his termination. He

relies on evidence of Valerus’s alleged failure to follow its policies, its

treatment of other injured workers, the use of inappropriate jobs to force him

to leave work, and a negative attitude and discriminatory conduct towards him

before he was fired. Montgomery asserts

that Valerus did not uniformly apply its leave of absence policy because it

failed to notify him of the need to return to work, of his termination, or that

he could reapply after his termination. [3] Further, Valerus did not request periodic

reports on his condition. Valerus does

not refute that it informed Montgomery of his termination for the first time

when he contacted human resources to ask why his benefits had been

terminated. Nothing in the record,

however, indicates that Valerus’s policy created a duty to inform Montgomery of

the need to return to work or of the opportunity to reapply after termination

beyond the notice supplied in the handbook.

Moreover, Montgomery did not explain how a post-termination failure to

advise him of his termination evidences an intent to discriminate in the

termination itself. Valerus’s policy did

not recognize any further obligation to request reports on Montgomery’s

condition nor did Montgomery present evidence demonstrating his condition had

improved. Nicholson in his affidavit

testified that his termination decision was based on statements by Montgomery’s

doctor refusing to return him to work and by his 10% permanent impairment.

Montgomery’s allegations of

negative attitude and discrimination in his work assignments by his employer

before his termination are not alone sufficient to raise a fact issue on the

motive of Nicholson’s termination decision.

The employee in Page v. Fort Bend

Independent School District alleged that her employer “‘expressed a

negative attitude’ towards her impaired condition,” did not honor her doctor’s

light-duty restrictions, refused to accept faxes regarding her medical

condition, and that her employer’s representatives were “rude” and “intolerant”

towards her. Page , 2002 WL 31771439 ,

at *2. This court stated that her

“contentions are based solely on her subjective beliefs and do not raise an

issue of material fact as to whether her termination was retaliatory

discharge.” Id. (citing Cont’l Coffee

Prod. , 937 S.W.2d at 452 ).

Therefore, summary judgment was proper because the employee presented no

evidence that her employer failed to uniformly apply the absence policy. Id.

at 3.

Montgomery raises almost identical

contentions that Valerus’s employees were hostile towards his disability and that

Valerus refused to comply with his light-duty restrictions. As in Page ,

Montgomery’s subjective beliefs that his employer was hostile and had a

negative attitude are not sufficient to raise a fact issue on Valerus’s

application of its absence policy. See Cont’l Coffee Prod. , 937 S.W.2d at

452 ; Page , 2002 WL 31771439 , at *3.

Further, the specific comments here were directed at Montgomery’s

inability to perform the work assigned, not his workers’ compensation

claim. Montgomery’s allegation of

discrimination with regard to his work assignments similarly fails without

evidence of Valerus’s different treatment of similarly situated employees. See Hardy ,

2003 WL 22451367 , at *3.

We

hold Montgomery did not raise a fact issue on whether Valerus failed to uniformly

apply its absence policy. Therefore, the

trial court properly granted summary judgment on his retaliation claim. Because we find summary judgment to be proper

on one ground raised by Valerus in its summary judgment motion, we need not

address Montgomery’s remaining arguments regarding damages. See Beverick ,

186 S.W.3d at 148 .

Conclusion

We

affirm the judgment of the trial court.

Harvey

Brown

Justice

Panel consists of Chief Justice Radack and Justices Sharp and Brown.

[1]

Valerus hired Montgomery in

January 26, 2006, at which time he signed an acknowledgment that he read the

employee handbook and understood that he was an at-will employee. The record contains two different versions of

the handbook. One copy is dated April

10, 2006. The second version is undated,

but Nicholson attached the version to show he followed Valerus’s leave of

absence policy in firing Montgomery in 2008.

[2]

The quoted language is from

Valerus’s 2006 version of the handbook but is substantially the same as the

later version. Additional language

appears in the later, undated version relied on by Nicholson in his affidavit

including “Employees for whom the Company has information that they are not

likely to return to work in the future may be terminated unless prohibited

under applicable federal, state or local law.”

The differences between the versions of the handbook are immaterial to

our analysis.

[3]

Montgomery also asserts that

Valerus failed to follow policy because Nicholson fired him outside of the

chain of supervision. Montgomery does

not identify any policy by Valerus that would prevent the vice president of

human resources from terminating employees on extended leave. Conversely, Montgomery contends in his reply

brief that Nicholson acted as the “cat’s paw,” or merely as a conduit for the

discriminatory motives of other Valerus employees. Montgomery, however, supplied no evidence to

demonstrate Nicholson acted as an instrument of another’s discriminatory intent.