Jenkins v. Guardian Industries Corp.

because a trial of the felo- requested relief Tommy JENKINS, Appellant,

ny offense is barred the dismissal The Code of Crimi- misdemeanor offense. provides nal Procedure State CORP. INDUSTRIES GUARDIAN time as dismiss a criminal action Hicks, Appellees. and Charles long judge presiding the action as the over No. 10-99-028-CV. consents to dismissal. Tex.Code CRiM. (Vernon 1989). It is well

Proc. art. 32.02 Texas, Appeals of Court of cause does settled that the dismissal of a Waco. jury returning from prevent grand not 22, March charging the subsequent indictment Williams, parte Ex same transaction. 911, (Tex.Crim.App.1964). especially

This is so when the dismissal dis-

does not indicate the cause was State, prejudice.”

missed Smith v. “with 381 (Tex.App. —Amarillo pet.). dismissal of the misdemeanor

cause indicate that it was dis does not Therefore, prejudice.” “with

missed subsequent is not a to a

dismissal bar prosecution felony

indictment and Hughes’s

cause. first issue is overruled. Estoppel

Collateral issue,

In second con Hughes his collaterally

tends the State is es-

topped felony from cause. prosecuting

Hughes present argument did not this ap

the district court either his written

plication corpus, arguments for habeas preserved

or his brief. He has Tex.R.App.

complaint for our review. See

P. 33.1. His second issue is overruled.

Conclusion issues, Hughes’s two

Having overruled

we affirm the of the trial court.

Hughes’s Staying Motion for Fur- Order Proceedings During in Trial

ther Court hereby

Pendency Appeal dismissed

moot. Mexia, Thomas, appel-

Amy for Grubbs lant. A. War-

Wesley Hightower, M. Karen Worth, dell, appellee. Fort for DAVIS, Justice Before Chief Justice VANCE, and Justice GRAY. OPINION full could “return to duties.” Jenkins re- turned August to Guardian on 30 with the VANCE, BILL Justice. release and stated that he ready (Jenkins) Tommy Jenkins sued Guard- work, although return to he could not bend (Guardian), ian Corp. Industries former and, therefore, his knee his abilities were (Hicks), employer, and Charles Hicks limited. He that his doctor did admitted supervisor, -wrongful former for termi- really ready believe he was to return Summary granted Judgment nation. work, signed but release because he in favor of both Guardian and Hicks. Jen- conditionally asked it. Guardian of- appeals, asserting genuine kins issues glass fered Jenkins a on the “raw (1) of material fact exist as to whether he line,” production “only job as this was the was terminated retaliation for available.” Jenkins attempted (2) compensation claim workers’ and a physical” “return-to-work which tested whether his termination inwas violation of posi- whether Jenkins could Rights the Texas on Human Commission offered, pass tion but he could not it. Jen- (TCHRA). Act See Tex. Ann. that he Lab.Code kins indicated believed he could (Vernon 21.001-506, §§ 451.001-.008 1996 perform jobs of the “in the ware- one Supp.1999). & affirm We will the sum- house,” any position but he was not offered Hicks, mary judgment as to reverse it on production one on other than the line. the retaliation and discrimination claims 30, September Guardian On notified Jen- Guardian, against against sever the claims kins in that their rela- writing Guardian, and remand latter for a trial tionship was terminated.

on the merits. OF REVIEW

STANDARD summary judgment movant bears FACTS prove genuine the burden to that no issue by in employed Jenkins was Guardian of material fact exists and that it is enti glass manufacturing plant 1984 at its in tled to a of summary judgment as matter 25, 1993, January Corsicana. On Jenkins 166a(c); law. Tex.R. Civ. P. Nixon v. Mr. injured working his knee while and filed Co., Property Management 690 S.W.2d compensation workers’ claim. Lines, 546, (Tex.1985); 548 Delta Air Inc. “light duty” through continued on March Norris, 422, v. (Tex.App.— 949 S.W.2d 425 1993, surgery. of when he had From denied). 1997, A Waco writ defendant- 1994, March of 1993 until June of conclusively negate at least movant must did not at all and received medical work of of one the elements the non-movant’s indemnity and benefits from Guardian’s conclusively cause of action or establish compensation workers’ carrier. His work- every element of an affirmative defense. after ers’ benefits ceased Williams, Fire Ins. Co. v. 955 U.S. and, long-term sixteen months because the (Tex.1997). 267, 268 disability carrier determined insurance determining whether a material When totally from Jenkins was not disabled exists, accept fact issue we must as true all long-term in all working occupations, his evidence favorable to the non-movant. disability August ceased on benefits also Nixon, 548-49; at Delta Air 690 S.W.2d 30, 1994. Lines, Inc., 949 S.W.2d at 425. We must 10, August In a letter dated indulge every all also resolve doubts notified Jenkins that his benefits would reasonable inference favor of the non- and also informed him August cease on 30 Nixon, 549; 690 at Delta movant. that he could continue his health insurance Lines, Inc., at 425. Air 949 S.W.2d coverage expense own for an addi- 18, jurisdictions Although some August tional 18 months. On Jenkins’ pres stating place that he a burden on the non-movant signed doctor a release (2) the em- represent lawyer hired non-mov- support ent claim; in a defense, ployee “we never shift ant’s claim or unless to the non-movant proof (3) of instituted burden caused to be instituted or ‘establish[ed] the movant has and until under Subti- proceeding good faith to a entitlement A; or tle the trial expressly presented issues in a (4) testify about or is testified all essential conclusively proving court A. under Subtitle proceeding or defense of action of his cause elements Remedies; Burden § 451.002. ” Durham, law.’ State v. a matter of as Proof (Tex.1993) (citing Casso 860 S.W.2d (a) who violates Section person A (Tex.1989), Brand, quot v. 776 S.W.2d damages for reasonable 451.001 is liable Basin v. Clear Creek ing City Houston employee result by incurred (Tex.1979)).

Auth., 589 S.W.2d the violation. a fact necessary to establish when (b) in violation discharged An expressly issue, must the non-movant to rein- is entitled 451.001 of Section trial court its reasons to the present of em- in the former statement present summary judgment, avoid ployment. Oil summary judgment proof. Westland (c) proceeding in a The burden Corp., Corp. Dev. Oil Gulf employee. is on the this section under (Tex.1982). 903, summary judgment A 907 however, not, a weakness may be based on Injunction § 451.003. un or pleading non-movant’s of the restrain, cause may for A district court right of it the absence of

less establishes shown, of 451.001. a violation Section recov an insurmountable bar to action or Id. Durham, (citing at 68 ery. 860 S.W.2d statutory ex 64, is a 66-67 451.001 Hughes, v. 488 S.W.2d Section Swilley doctrine common-law (Tex.1972)). ception to the Texas Terry v. Southern employment-at-will. see, trial of claims because a As we will (Tex. Co., 254, 256 927 S.W.2d Floral shifting these involves burdens such as writ). 1996, no Dist.] [1st App.—Houston evidence, analysis of such production protect em designed The statute context in the claims workers’ com are entitled to who ployees complex matter. becomes a more discharged being from benefits pensation those steps to collect they take because RETALIATION CLAIMS Id. benefits. La- of the Texas 451.001-.003 Sections damages for a trial to recover At constitutes regulate what bor Code em retaliatory discharge, an arising from and what must be

wrongful termination that “but for” prove must ployee termination proven to establish claim, the dis compensation of a workers’ Compen- in of the Workers’ violation when not have occurred charge would §§ 451.001- Act. Tex. Lab.Code sation Montiel, Ann. Technologies Corp. v. did. Trico They provide: .003. (Tex.1997); 308, Continen 312 949 S.W.2d Cazarez, 937 v. Products. Co. tal Coffee Against § Discrimination 451.001. (Tex.1996). 444, The Su 450-51 S.W.2d Employees Prohibited which, factors recognized has Court preme in discharge or may not person A are considered plaintiff, by if proven an against manner discriminate link. this causal evidence of circumstantial has: employee because 450-51. Coffee, 937 S.W.2d Continental (1) the com knowledge of These include: (1)filed claim compensation a workers’ making the deci those by claim pensation faith; good 436 (2) termination;

sion on expression of a tive. See id. The causal conneetion-retal- negative employee’s attitude toward the iative motive be established either (3) condition; injured failure to adhere to direct or circumstantial evidence. Texas (4) company policies; established discrimi Division-Tranter, Carrozza, v. Inc. 876 natory in comparison (Tex.1994) treatment 312, curiam) similar (per S.W.2d 314 (5) ly employees; situated (motive); (causal Terry, 927 S.W.2d at 257 the stated reason the discharge connection). employee’s subjective was false. Continental Products. are, however, beliefs no more than conclu- Coffee Cazarez, (Tex. 70, Co. v. 77 Division-Tranter, sions. Texas 876 1995), App. [14th Dist.] at 314. S.W.2d —-Houston aff'd part- part grounds, and rev’d in on other (Tex.1996); 937 S.W.2d 444 Palmer v. Mil DISCRIMINATION CLAIMS (Tex. Co., 57, Brewing ler 852 61 S.W.2d The Texas Commission on Human App. 1993, denied); Worth writ —Fort (TCHRA) Act Rights is codified in chapter Ramirez, Paragon Corp. Hotel 783 21 of the Labor Code. Tex. Lab.Code Ann. 654, (Tex.App. 658 Paso —El §§ 21.001-405. The prohibits TCHRA an denied).1 writ The workers’ discriminating against from claim need be the sole cause of the compensation, individual with respect or Coffee, termination. Continental terms, conditions, or privileges of em 450-51; S.W.2d at Terry, 927 S.W.2d at race, color, ployment because of disability, (filing the claim was at least a deter sex, religion, origin, age. national or Id. mining factor in the discharge); Depart § purposes 21.051. One of the Hinds, ment Human Services v. TCHRA is the correlation of federal (Tex.1995) (the 635-36 stan state law the area of dis dard of causation in whistleblower and crimination. Corp., See Gold v. Exxon similar cases should in employ be used 378, (Tex.App. S.W.2d 380-81 —Houston i.e., cases, ment require discrimination no 1998, pet.); [14th Dist.] no Rios v. Texas ment that the protected conduct of the Bancshares, Inc., Commerce 930 S.W.2d employee be the sole cause of the discrimi 809, (Tex.App. Corpus 818-19 Christi — nation); Foodservice, Gorges see also Inc. 1996, denied); Farrington Sysco writ v. Huerta, (Tex. 656, v. 964 S.W.2d 667 Servs., Inc., 247, Food 251 865 S.W.2d 1998, App. Corpus pet.). Christi no — 1993, (Tex.App. writ [1st Dist.] —Houston denied). Once a link filing Supreme between the The Texas Court has established, claim discharge and the it is directed Texas courts to seek guidance employer’s the burden to alleged interpretations rebut the from federal Title of VII of by showing legiti retaliation there was a the Rights Civil Act of 1964 when constru mate discharge. Terry, ing reason for the 927 Speer Presbyteri the TCHRA. See v. Thereafter, S.W.2d at 257. the Agency, burden an Children’s Home & Serv. 847 (Tex.1993). employee 227, shifts back to produce the to 232 Accordingly, controverting evidence of a retaliative mo- we look to interpret federal case law Supreme disapprove. 1. The opinion Texas Court's Continental tors and did not The opinion specifically approve ultimately does not relied on these factors. See id. at Coffee Rather, (evidence the use employer’s explanation of these factors. the Court 452 of compensation-retaliatory notes that workers’ employer termination was false and that had discharge require negative employee's injured cases similar to that attitude toward cases, required support retaliatory Act Whistleblower re- condition sufficient Furthermore, Department discharge finding). fers to Texas Human Services of Hinds, See, (Tex.1995), applied e.g., v. 904 S.W.2d 629 courts have these factors. Foodservice, Huerta, Gorges both contexts. Continental Products. Inc. 964 Coffee Cazarez, 444, (Tex. 656, (Tex.App. Corpus Co. v. 937 S.W.2d Christi — However, Therefore, 1996). pet.). rely the Court noted that the no we will also appeals intermediate court of used these fac- on these factors. claims. of each element of Jenkins’ the allocation one determining Title VII ing Co., at 268. Ins. Fire 955 S.W.2d and em See U.S. employer burdens between the of claim is tried a discrimination ployee when Liability Individual Rios, the TCHRA. 930 S.W.2d under out that Hicks’ ground pointed first “Em- the that he was established affidavit as: The burdens have been described Manager” for Guardian ployee Relations to show facie case prima In order under and, such, “employer” is not an discrimination, employment plaintiff the Inc., Citing Furr’s Stoker v. the TCHRA. 1) that of a must show he was a member (Tex.App. Paso —El 2) class, that he suffered protected denied), urged Hicks that because writ 3) action, and adverse the employer, neither not Jenkins’ class not non-protected employees claim nor the discrimination retaliation similarly. has plaintiff treated Once the him. against be maintained claim could case, prima the bur- established facie Retaliation Claim employer the production shifts to den claim, Guard- Concerning retaliation legitimate, articulate nondiscriminato- put “not had ian first asserted unequal ry allegedly reasons direct, evidence, circumstantial or forth If legitimate nondiscrimina- treatment. retaliatory motive” and that Jenkins [a] tory reasons are the em- established link evidence of a causal between had no the burden then ployer, shifts back workers’ plaintiff prove employer’s that the does discharge. The motion claim and his reasons for un- pretext articulated are a summary judg- urge that Guardian’s though lawful discrimination. Even negates the conclusively ment shifts, production burden of the burden causal link. continuously with persuasion remains plaintiff. reason for next asserts that its omitted). (citations Id. In legitimate. discharging connection, urges that an this

GUARDIAN’S MOTION FOR employee right terminate an has SUMMARY JUDGMENT if, on-the-job due to injury after an judg- injury, can Guardian’s motion for nature of (1) functions of supported the essential by longer perform ment was three exhibits: Furthermore, it that did job. says Hicks’ and its attach- it Charles affidavit (2) ments; fire position its at- to create new or deposition Jenkins’ and not have (3) tachments; of Dr. to Jenkins. employees and records accommodate business which, judgment it summary to the issues respect Kal Schwarts. With Dr. this includes says, supports three assertion appeal, now on motion asserted (1) that Hicks indi- records which state Jenkins grounds: could not be held Schwarts’ (2) hable; [re- meet for vidually requirements [the] Guardian was entitled “does not stating and summary judgment the retaliation turn to Hicks’ affidavit work]” to (3) terminate em- claim; it was that his decision Jenkins’ and entitled inability to claim.2 was based on “his judgment ployment on the discrimination job under the tra- the essential functions perform These assertions made conditionally rule, whereby position line I summary-judgment c-crew lower ditional insisting upon as he negate to him expressly undertook offered Guardian assertion, amending petition, "no the new 2. A fourth based on rule, relief, summary judgment was di- evidence” does not merely all and Jenkins denies Jenkins’ intentional inflic- rected at claim of concerning appeal this an issue on assert Civ. P. emotion tion of distress. claim. Tex.R. 166a(i). by claim Jenkins dismissed the regarding immediate decision his work sta- in the position functions of a warehouse at tus.” Guardian. “Reasonable accommodation” “job-restruc- says, would have included Discrimination Claim turing, part-time, split shifts or modified attempts Guardian to defeat Jenkins’ schedules, reassignment work or to an discrimination claim showing that he open position.” He claimed that sum- perform could not the essential functions mary judgment evidence shows that he job of the only open when he wanted to “light duty” and others had worked work, ie., return to glass production Guardian, temporary workers were area. It points to Jenkins’ deposition as fill, that he could occupying positions some admitting that he could not perform those vacation time and that he had available functions at the time he wanted to return position that he could use until became and to Dr. Schwarts’ medical records as available. confirming that fact. It next asserted that pro- Jenkins had REPLY TO GUARDIAN’S JENKINS’ duced no evidence that he could RESPONSE job with reasonable accommodation. response reply Guardian’s to Jenkins’ Finally, it asserted that the decision to reurged first on Hicks’ individ- its terminate his was not based claim, it liability. ual the retaliation On solely on his disability. summary judg- urged that if even Jenkins’ ment a fact issue on evidence asserted JENKINS’ RESPONSE motive, retaliatory was no there response Jenkins’ to Guardian’s motion causation, ie., that he would not have been urged that evi- filing compen- terminated for” his “but (a) dence created concerning fact issues essence, sation claim. In contends (b) retaliatory discharge motive for his inability the termination per- due to his whether Guardian could have “reasonably form the duties of the eliminates his accommodated” employment. his continued claim for retaliation. The summary judgment evidence included claim, reply On the discrimination affidavit, his own letters and statements undisputed asserts: “It that Plaintiff from various employees, Hicks’ could the essential function deposition testimony, Guardian’s answers any job facility.” It at the then Corsicana requests interrogato- admission and produce asserts that did not sum- ries, attorney affidavits from his and a mary create judgment evidence that would former co-worker. concerning a fact accom- issue reasonable that, pointed out on the retalia- modation none of the accommoda- because claim, tion he would not prove have to suggested tions that he were reasonable as his discharge solely resulted from his a matter of law. the compensation claim and he could es- using Having summary tablish “causal connection” circum- judgment stated the stantial evidence and reasonable begin inferences motions and we our con- responses, from the disposing evidence.3 On the discrimination sideration of of the issues. After claim, urged question liability, that Guardian could the personal of Hick’s we not him legally discharge “poten- if he was in will consider Jenkins’ issues reverse or- tially job able to do the in question.” disposition He der because the of the discrimi- could, asserted that he with bearing reasonable nation claim has a on the outcome accommodation, perform the the essential retaliation claim. response

3. Jenkins’ also cites Continental burden. 937 S.W.2d at 450. Cof- Products, employee's which sets forth the fee

439 dis- plaintiff-employee’s the judgment on PERSONAL LIABILITY claim. crimination Hicks, Jenkins sued Charles Manager, Employee Relations Guardian’s at employer-movant may The However, in su capacity. his individual employ non-protected to show that tempt liable pervisors managers are not so, If the is similarly. were treated ees alleged acts capacities individual for their joined may be when sue under De the TCHRA. discrimination evidence produces summary judgment Inc., Retailers, 909 Specialty Moranville how various a fact issue about that raises (Tex.App. Dist.] [14th 90 S.W.2d —Houston employer The employees treated. 1995), grounds, rev’d on S.W.2d however, without may, with or movant Moore, (Tex.1996); Benavides v. plaintiff treated conceding (Tex.App. Corpus Christi — nondis differently, legitimate, advance denied). under Nor can a claim writ un allegedly eriminatory reasons for the Compensation Act be the Workers’ If is ad such a reason equal treatment. an “em brought against one who is not vanced, employee may be called then Stoker, 813 at 721-24. ployer.” evi summary judgment produce upon and Jen employed both Hicks about wheth dence that raises fact issue is an employer. kins. Hicks not are employer’s articulated reasons er the summary judgment in of Hicks was favor In unlawful discrimination. pretext aff grounds on all and will be proper event, we must mind either bear irmed.4 summary judgment practice, our under proof to the never shifts burden movant unless and until the non-movant CLAIM JENKINS’ DISCRIMINATION its to a sum has established entitlement Jenkins’ second issue contends expressly mary judgment the issues genuine are material that there issues of Durham, presented to the trial court. concerning fact claim of discrimination mind, we at 68. With this he as Specifically, under the TCHRA. motion summary judgment to the turn ignored obligation serts that Guardian its evidence. to make a “reasonable accommodation” so motion for sum- Guardian filed its When job. that he could some had been mary judgment not question apply initial evidence.5 upon is how called adduce did proof shifting summary judgment judgment burdens in the Guardian’s attempt non-protected one to establish that context. Elements and two—whether not In- similarly. protected employees is a were treated plaintiff member of stead, it had a non- an adverse it adduced class and whether suffered terminating Jen- straightforward diseriminatory reason for employment action—are employment, ie. that Jenkins fact will be deter- kins’ determinations that only unable to genuine physically be fact issues or mined to so, ex- Assuming we evi- this to be available. depending his burden non- amine Jenkins met The third element —whether whether dence. differ- protected employees producing were treated raises a fact issue about whether we the burden- ently where consider —is reason for termination in the stated

shifting approach applicable be Guardian’s summary employer seeking pretext. a a context of an Furthermore, though only view this amended motion

4. Jenkins’ addresses we must brief favor of Guardian. the in for it were Guardian’s initial motion judgment. Although responded Jenkins had to Guard- summary judgment, motion ian’s earlier perform produc-

Sections 21.051 and 21.105 of the glass “lower-line” raw TCHRA make it an unlawful tion position which was available practice discharge for an to a to work. time Jenkins wanted to return It person disabled disability basis of a job. hard-labor undisputed is that this is a disability when the impair does not the Guardian did not consider whether Jenkins ability reasonably perform individual’s to a jobs could perform of the were 21.051, job. §§ 21.105 being by temporary filled workers. The Tex. Ann. Lab.Code (Vernon 1996); Hosp. Austin State temporary evidence shows that workers Kitchen, (Tex.App.- paid considerably are than less full-time — 1995, writ). Thus, Austin no the issue is employees Guardian and receive bene- whether physical Jenkins’ condition im fits. it did not Guardian said consider pairs ability reasonably to perform a placing positions Jenkins in of those one job. § 21.105. He Tex. because it would not be “cost-effective.” Lab.Code Ann. perform show he can all the essential jobs in The evidence shows that exist or, job functions of a by demonstrating are con- warehouse at Guardian which that he could “reasonably be accommodat In “light duty.” past, sidered ed,” may show that he can “reasonably and worked on these employees perform job.” a injuries. “light duty” jobs after Jenkins filed an attempt affidavit light duty position not offered a to show that Guardian’s stated reason for warehouse, contends that no but Guardian that, termination is false. He states after job such at the time Jenkins was available injury, jobs he could do “such as [his] Furthermore, wanted to return to work. job warehouse,” old but Guardian regular practice Guardian asserts that the him place positions. would in those to employees through rotate the ware- only position Guardian offered him a which jobs house in an effort to minimize the he could not “ac- perform refused to monotony job thereby reduce “light commodate” him in a duty” position. injury. says, putting the risk of He also offered evidence that Guardian position Jenkins in one when he could not had made the decision to terminate him perform all the placed others would have prior conducting physical to examination burden on the schedule. Howev- rotation job. to see if he was perform able to er, that em- there is also some evidence Jenkins asserts he is able reason- ployees from time to time were allowed ably perform joba will fulfill Guardian they until were able rotating if refrain from obligation its to make “reasonable accom- jobs. perform the other This some of types modation.” The ac- reasonable option provided to was not Jenkins. suggests commodation which he include: in- The evidence that other also shows 1) 2) work; assigning light duty him to jured on leave to re- employees put him a assigning position occupied by not lose tain their status and 3) worker; temporary allowing or him to job their accrued until a which benefits take vacation leave until a unpaid time or they could became available. that he could avail- becomes option given This was not to Jenkins. response, says able. In that the summary judgment evidence shows that the “undue Guardian also asserts perform any job Jenkins could not at the by section hardship” provided defense not, plant, available or and that it had no § 21.260 of the Id. 21.260. At TCHRA. duty to create a which Jenkins trial, it would bear the burden perform. could Hosp., 903 its defense. Austin State light

Considered in the most favorable at 91. In the Jenkins, context, conclusively the record shows that Guardian it bears the burden of only every this affirma- establishing considered whether Jenkins could element of

Adi Williams, not been charge. Jenkins had tive 955 S.W.2d at Because defense. See in light upon most favor- at that produce Considered the called to evidence Jenkins, summary judgment the pri- able to that begin by assuming point, we will conclusively evidence does establish of a link.exists. ma facie evidence causal that would an un- Guardian have suffered Thus, at 257. we Terry, See due in to take hardship allowing Jenkins summary- address whether Guardian’s jobs alternative advantage of one the established judgment successfully evidence summary judgment raised the evidence discharge to legitimate that it a reason had to fully perform until he was able Jenkins. jobs. Hosp., Austin State S.W.2d See is to ter permitted An at 92. who an on- employee minate an sustains of all Giving Jenkins the benefit infer- can the-job injury if that in the construing ences and the evidence perform the essential functions of longer him, find light most favorable to we Texas, job. County, his Trevino v. Kent genuine issues of fact exist material about 493 (Tex.App. —Amarillo accommodation, whether, with reasonable denied). It is undisputed writ reasonably performed have Jenkins could pass could not a retum-to-work Jenkins job the essential functions of available to test he physical designed whether could Thus, at fact Guardian. we find issues par the perform essential functions of the in whether fired viola- about Jenkins was job Furthermore, ticular to him. offered tion of the TCHRA. sustain issue two. We eighteen passed be more than months

JENKINS’ RETALIATION CLAIM filing tween Jenkins’ of the claim his discharge. Although he a release to had

Jenkins’ first issue asserts that work, and others at Jenkins told Hicks genuine a issue fact material exists really did not Guardian that doctor his claim that he was retalia terminated want to Jenkins’ him released work. tion filing compensation workers’ treating stated that he did not physician our Again, inquiry claim. initial in this apply could activities shifting issue is how to believe Jenkins burdens summary For judgment job context. consistent with his former duties. When review, filed its purposes Guardian motion for of our we will assume judgment, Jenkins had not been called evi required produce to Jenkins upon produce concerning to dence to reason for the rebut Guardian’s Only Guardian’s motive. after Guardian’s discharge. evidence established a Thus arrive at consideration we

legitimate, non-discriminatory reason for evi- summary judgment whether Jenkins’ would discharge required Jenkins be dence to a fact issue was sufficient raise with come forward retaliatory about motive. asserts that He a retaliatory evidence of motive. See Texas there is at least circumstantial evidence ivision-Tranter, D 313- raise a triable issue as sufficient to 14; Terry, 927 S.W.2d at 256. noted, cir- we retaliation claim. As have asserts that Jenkins was fired cumstantial evidence be sufficient to only he cannot because establish motive. which was available at the time wanted factors, Citing Continental Coffee says it return work. following that the tend asserts cannot show that his termination would not retaliatory show motive: of a occurred but for the work- have that he employer’s knowledge 1. His ers’ claim. Its is compensation claim had filed it essentially legitimate reason involved undisputed because was gave negates the causal connection be- process; filing of claim and the dis- the claims tween the 2. Hicks’ comment that Guardian had CONCLUSION “good by been paying [Jenkins]” We affirm the summary judgment benefits;

his compensation workers’ favor of Charles Hicks on both of Jenkins’ summary claims. We reverse the judg- 3. hearing prior termination; No to his granted Guardian, ment in favor of sever 4. give Guardian did not Jenkins the the retaliation and discrimination claims option to be on pay leave without Guardian, against and remand them for a instead of terminating employ- his trial on the merits.

ment; Justice GRAY concurring and 5. Guardian’s mention of his COBRA dissenting. rights in a letter dated August Justice, TOM concurring GRAY and says which he shows that Guardian’s dissenting. (inabil- stated reason for termination summary judgment evidence estab- ity to pass the physi- return-to-work undisputed. lishes certain facts as cal) is false because the return-to- worked for He Guardian. was hurt on the physical given work after Au- job. He light duty was allowed to work on gust 10. in the warehouse until his surgery. first Coffee, Continental 937 S.W.2d at 444. He Benefits, Under Guardian’s Health Plan points also to the evidence that super- Jenkins’s was deemed termi- visor, Henry Mayer, nated supervisors told other when he ceased active work However, March that 1993. his benefits Guardian intended to contin- “get rid” of him. ued plan under that injury. because Each by of these facts is supported sum- He remained off work long and filed for mary judgment They evidence. are more term disability, was approved. which subjective than Jenkins’ belief that his em- When he was notified that his long term ployer against retaliated opinion him. The disability had approved been he was also in Continental focuses on the “caus- Coffee notified totally that he was not because al link” question rather than the of wheth- disabled, those benefits about to ter- employer’s er the firing stated reason for result, minate and as a plan his health the employee was false. The ultimate coverage would also terminate. After re- question is whether the evidence of a caus- ceiving this notice he returned his doc- al link strong justify is so as to a finding tor and given wanted to be release to a retaliatory had motive. work, return to “full duties.” He obtained stated, As we retaliatory have motive days release. Twelve present- later he by be shown circumstantial evidence. ed himself at Guardian and wanted to re- Division-Tranter, Texas 876 S.W.2d at turn to work. Guardian reviewed the situ- Thus, resolving only job all in- ation and offered him vacancy doubts and subject dulging every satisfactory completion to his of a reasonable inference in Jen- return favor, physical. to work He failed the kins’ we find physical. Having vacant that judgment evidence raises fact issues about time, he could at that whether a retaliatory Guardian had motive they notified could not return Jenkins was fired for the work- him physical to work with his current re- compensation ers’ claim. Our decision is strictions and that he should seek other reinforced our earlier conclusion employment. genuine issues of material fact exist with respect to the (1) discrimination claim. claiming: Jenkins sued Guardian we judgment deny- reverse the against that he was discriminated because ing (2) his retaliation claim. Issue one is sus- disability; of his that he termi- tained. nated in having retaliation filed injured he was manner the time claim. lar from Guardian’s workers surgery. What the until the time of his es- response is that he cannot also estab summary judgment evidence only job sential functions of the available not made a has lished that Guardian had to made.1 at the the decision be time duty position for em permanent light summary judgment. Guardian moved for that The Jenkins ployee. accommodation de- granted The trial court it. We must perma a of is to create demands Guardian summary judgment proof cide if enti- altering by light duty position its nent judgment as a tled Guardian to matter rotations, duty which system of internal majority holds that law. The Jenkins’s safety implemented for Guardian has controverting ques- raised fact evidence Additionally, only light of workers. its him to a on the tions that entitled trial inis the ware duty work in the rotation that merits. Because I believe Guardian’s and no vacant warehouse house there was to summary judgment evidence entitled to wanted be position at the time Jenkins law, I is not judgment respectfully a matter of returned to work. Guardian re job for that he quired to create a Jenkins dissent. Babcock & perform. can Foreman v. Wil (5 Co., 800, Cir.), 117 809 th cert. cox F.3d BECAUSE DISCRIMINATION 1050, denied, 1115, 522 118 S.Ct. 140 U.S. A DISABILITY? OF (1998) (“An employer is not L.Ed.2d 113 jobs to required ‘light duty’ ac create successfully Jenkins has confused the commodate.”); Turco v. Hoechst Celanese disability by issues claim question 1090, Inc., 101 F.3d 1094 Group, Chemical ing “reasonably can a whether he (5th Cir.1996); Champ v. Baltimore Coun job if fulfill its obligation Guardian will (D.Md.1995), aff'd, 91 ty, F.Supp. 884 991 make ‘reasonable accommodation.’ The (4th Cir.1996) (no permanent 129 F.3d types of accommodation which reasonable duty position required). light 1) he him to suggests assigning include: 2) work; light duty assigning Replace Temporary him to a a Worker worker; position occupied by a temporary that should Jenkins contends Guardian 3) allowing or him to take time or vacation a the ware- “temporary fire worker” unpaid until a leave he could that he could vacancy house to create a perform became available.” Jenkins v. First, does given. then be not Guardian Industries, al., Corp., Guardian et 16 firing to face one have the dilemma 2000). (Tex.App. Waco, 440 not, worker, posi- temporary or to create — Foreman, 117 F.3d tion Jenkins. Light Duty Assigning to Work (“For of a 809-810 the accommodation The summary judgment evidence estab reasonable, it is reassignment to be clear tempo lishes times Guardian that at has position first exist be must rarily employees letting vacant.”); Corp., accommodated v. York Intern. 45 White Cir.1995) (10th (“However, light duty. them The work F.3d employer require also the ADA does not establishes as an accom- promote in a disabled Guardian accommodated Jenkins simi apparently tumed to there was in the re- work so There is some confusion record capable perform- question garding exactly that he was when Jenkins terminated. job. ing wise, of his plan, ter- the essential functions Other- benefits he was deemed Under the 1993; however, already obtained a he would have re- March minated in purposes to work. For they they lease and returned on the date notified him focused evaluation, frame is from this the critical time return him to work. Jenkins claims could not wanted to already when return had been made when he Guardian knew decision specifically determined work until it was termination in ear- received the benefits letter perform the essential functions ly time he could not August 1994. At that job, and was so notified. disability re- of the available receiving benefits had not modation, nor employer reassign must an temporary terminated a worker and creat- the employee occupied to an position, nor permanent light duty ed a position in the must the create new specifically warehouse for him. worker.”). accommodate the disabled To principle parties case both and the hold otherwise elevates Jenkins above his majority rely upon is Continental Coffee employee-at-will to being status entitled to Cazarez, Products Co. v. displace Second, another worker. even if (Tex.1996). presented Cazarez a list of one of temporary workers were fired prove circumstantial evidence to the causal to allow an opening, undisput- it is alleged connection between the retaliation ed that without permanently altering the and her termination. Jenkins and the ma- job making job perma- rotation and the a jority list much of same type the circum- nent light duty position, as discussed stantial evidence to also establish the caus- above, disability Jenkins’s prevent would al connection. Guardian has contested him fulfill being from able to the essential produce ability Jenkins’s some evidence position. functions of the However, causal connection. Unpaid Vacation Time or Leave majority and the attempt also to use the When Jenkins arrived at Guardian to same evidence to establish the stated return presented to work he Guardian with discharge reason for is false. This is not putting alternative other than him to proper. request work. He did not that he be Continental, In the stated reason for allowed to take his vacation time to await a firing Cazarez was for violation the possible opening before he was terminated. (a three-day requires rule rule which an He request put did not unpaid be on employee to contact the to ex- possible administrative leave to await a plain every days). extended three absences opening. He wanted to return to work The court stated: immediately but was to perform unable the only job essential functions the that was an employee’s required If termination is available at attempt that time. Jenkins’s by the uniform enforcement of reason- to raise the only “accommodation” after he policy, able absentee then it cannot be suit, clearly has filed when it was not an the case that termination would not have time, alternative at the should be summari- employ- occurred when it did for the but rejected. ly claim ee’s assertion of or summary, law, In as a matter of the protected by section conduct suggested by accommodations 451.001. if enforced Continental were not The only summary reasonable. uniformly, the rule and if Cazarez violat- judgment evidence was that there was no it, ed then Cazarez could not have been accommodation that could be made to al- terminated of the Anti-Re- in violation low only Jenkins to be able to taliation Law.

job available at the time the decision had Id. at 451. to be made. Continental,

According to Cazarez was RETALIATION? terminated because she failed to call in to 6, 7, Jenkins relies on these both reasons for account for her absence on November properly the discrimination claim and the retaliation and 8 and was thus fired that she However, claim. He also submits some additional the 8th. Cazarez introduced on support circumstantial evidence in of his the stated evidence to establish that rea retaliation claim. None of the evidence son for termination was false. She intro contradicts the fact that there is no establish she was fired duced evidence to 7th, which day Guardian for Jenkins could the 3 rule was before stated; the essential functions “Crediting unless Guardian violated. The court must, there is testimony, as we Cazarez’s PEACOCK, Appellant, Stanley J. evidence that she did not violate

some Id. at 451.2 This was three-day rule.” a fact introduced evidence Cazarez to raise CASUALTY TRAVELERS PROPERTY on reason question whether stated COMPANY, Appellee. INSURANCE which termination was false. Evidence nothing improper 10-00-037-CV, than show does more 10-99-301-CV. Nos. motive does not raise fact issue Texas, Appeals Court of discharge reason for whether stated Waco. specifi It must be evidence which false. cally question raises fact on whether March for termination established reason Id., false. judgment evidence is Division-Tranter, v. Car

see Texas Inc.

rozza, (Tex.1994). 313-14 not proffered

Jenkins’s evidence does

raise fact essential element issue as a

of his claim which Guardian refuted avail-

matter law. There deci-

able date of the perform,

sion that Jenkins could and the

only sug- accommodations

gested not reasonable accommoda- they firing

tions because would amount to creating a or worker and duty

permanent light position that did trial,

currently pointless To avoid a exist. granted

the trial court Guardian the sum- judgment

mary to which it was entitled.

I affirm as judgment would

to Guardian.

I concur in expressed

Charles Hicks for the reasons

by majority. legally justified. Id. at 451- discuss because it

2. The court went on to upon Appeals improperly the Court of relied

Case Details

Case Name: Jenkins v. Guardian Industries Corp.

Court Name: Court of Appeals of Texas

Date Published: Mar 22, 2000

Citation: 16 S.W.3d 431

Docket Number: 10-99-028-CV

Court Abbreviation: Tex. App.