AFFIRM;     Opinion   issued October 31, 2012




                                                     In The
                                 (Jtinrt uf \ppiatz
                          iftI Iitrirt nf cxa at 3a11w
                                           No. 05-1 1-00618-CV


                                       BRUCE ADAMS, Appellant

                                                       V.

               ONCOR ELECTRIC I)ELIVERY COMPANY, L.LC., Appellee


                        On Appeal from the 11 6
                                              th
                                                 Judicial I)istrict Court
                                     Dallas County, Texas
                             Trial Court Cause No. 10-02339-F


                                                 OPINION
                            Before Justices Morris, Francis, and Murphy
                                     Opinion By Justice Morris

        In this suit for retaliatory discharge. Bruce Adams appeals the trial court’s summary judgment

dismissing his claim against Oncor Electric Delivery Company, L.L.C. Adams brings five issues

arguing that he presented sufficient evidence of a causal connection between his workers’

compensation claim and his termination to preclude summary judgment and his claims were not

barred by the statute of limitations. Because we conclude Oncor conclusively showed that Adams

was discharged pursuant to a reasonable absence control policy and Adams failed to present

sufficient evidence to create a fact   issue,   we affirm the trial court’s judgment.



       Adams began working for Oncor in April 1979 and, by l993, he had achieved the position
osenior troubleshooter. On September I. 2007, Adams was severely injured when he ftll twenty—

live (bet ui’om a utility pole while attempting to restore power to a residential customer. Shortly after

the accident. Queer Oled a workers’ compensation claim on Adams’s behalf

        Adams’s injuries required weeks o [‘hospitalization and multiple surgeries including having

rods installed in his spine. Adams was con IThed to a wheelchair for a substantial period of time but

ultimately progressed to using a walker. l)uring this period, Adams continued to receive his full

salary pursuant to Oncor’s salary continuation policy. The salary continuation policy states that,

subject to Oncor’s approval, an employee who is unable to perform his “essential job duties” due to

illness or injurY may receive his regular base pay for a period of up to six months. The policy further

states. •‘if von reach the end of your salary continuation period and have not returned to work

performing the essential job duties of your position. your employment with [Oncorj terminates on

the date the salary continuation period ends.”

       Adams testified that, as he was recovering from his injuries, he was repeatedly told by his

supervisor. Keith Berry. that he would he taken care of’ and that, when he was able to return to

work, the company would find him a position inside, such as working in dispatch. In December

2007, Adams received a letter from the benefits coordinator at Oncor informing him that his

participation in the salary continuation program would end on February 29, 2008. The letter also

informed him that if he did not return to work performing ‘the essential job duties of [hisj

occupation” by that time. his employment with Oncor would be terminated. Finally, the letter stated

that the termination of his employment would have no effect on his ability to receive long-term

disability payments and set forth the procedure for applying for disability benefits.

       Adams returned to work in a restricted capacity on February 11., 2008 and was given a

temporary position as a dispatcher. Adams testified that he was told by Berry that, if he could work
br ()ncor for forty hours a week in any capacity. he would not have         to   go on long—term disability.

Berry retracted the statement a short time later and told Adams he was mistaken. But Berry also

stated that if Adams continued    to   work   as   a dispatcher “it would look good and demonstrate [his]

willingness and ability to return to work.” Adams began by working lour hours a day in his first

week back and six hours a day in his second week. By the last week of February. Adams was

working eight hours a day. A second letter was sent to Adams in February reiterating that if he did

not return to   performing   the “essential job duties of I his] occupation” before February 29. his

employment status with Oncor would be terminated.

        During the last week of February, Adams met with Lonna Snow, the dispatch supervisor, who

told him that she was going to have a dispatch position opening soon. Snow stated that she had been

watching Adams work and wanted him to submit an application for the position. The position

became available on March 4, 2008, four days after Adamss employment with Oncor was

terminated under Oncor’s salary continuation policy.

        Adams applied for the dispatcher position the day it became available. According to Adams.

Berry indicated to him that he shouldn’t have any problems getting the job. Snow interviewed

Adams and later called him to offer him the position. Snow’s phone call was followed by a letter

formally offering Adams thejob but stating the offer was contingent upon his “successful completion

of a fitness for duty evaluation with Dr. Ryan Razner.”

       Adams met with both Razner and a physical therapist. Adams testified that he passed all of

the tests given to him by the physical therapist and then met with Razner to discuss the accident, his

condition. and his medications. At the time of the meeting, Adams was still taking narcotic pain

medications. When the meeting concluded. Razner stated that he was not going to release Adams

to full duty but. according to Adams. Razner also stated that he would not tell Oncor that Adams was
incapable of perlorming the duties of dispatcher.

        Adams checked regularly with Snow in the following weeks to see if she had received the

fitness fiw duty report from Razner. Alter two months. Snow told Adams that Oncor had complained

to Razners office and informed the doctor that Oncor “need[edj to 1111 this position’ and he had “put

[AdamssJ life on hold.” Two weeks later, Adams received a letter from Snow stating that his fitness

for duty evaluation was not satisfactory and Oncor’s offer of employment was withdrawn.

       On March 1. 2010, Adams filed this suit alleging that Oncor violated section 451.001 of the

Texas Labor Code by wrongfully terminating his employment in retaliation for filing a workers’

compensation claim. Oncor tiled a motion for summary judgment asserting both traditional and no—

evidence grounds. Oncor argued that there was no evidence to show that Adams was terminated

because he filed a workers’ compensation claim and that it had articulated a legitimate, non-

retaliatory reason for Adams’s discharge. Specifically. Oncor contended that Adams was discharged

based on the uniform application of its salary continuation policy. Oncor also argued in the

alternative that Adams’s wrongful termination claim was barred by- the statute of limitations. After

reviewing the evidence and arguments of counsel, the trial court granted Oncor’s motion. Adams

then brought this appeal.

                                                 II.

       Adams raises five issues on appeal. In his first four issues, Adams generally contends that the

trial court erred in granting summary judgment against him because he produced sufficient evidence

of a causal connection between his termination and his workers’ compensation claim. We review the

trial court’s summary judgment de novo. examining the entire record in the light most favorable to

the nonmovant, indulging every reasonable inference in his favor, and resolving any doubt against

the movant. See Kalyanaram v. Univ. of Tex. Sys.. 230 S.W.3d 921, 925 (Tex. App.—Dallas 2007,




                                               -4-
pet. denied). We will affirm a no-evidence summary judgment unless the nonmoving party brings

forth more than a scintilla of probative evidence to raise a genuine issue of material fact on each

challenged element of his cause of action. Id. For a defendant to obtain summary judgment on

traditional grounds, he must either disprove at least one element of the plaintiff’s claim as a matter

of law or conclusively establish all elements of an affirmative defense. let

       Adams brought his claim for wrongful tennination solely under the provisions of section

451.001 of the Texas Isbor Code. Section 451.001 states that an employee may not be discharged

or otherwise discriminated against because he has, in good faith, filed aworkers’ compensation claim.

See Thx. LAB. CODE ANN. §451.001 (West 2006). The discriminatory acts prohibited by the statute

must occur during the period of employment and do not include a later refusal to rehire. See Smith

v. Coffee s Shopfir Boys & Men, Inc., 536 S.W.2d 83,85 (Ta. Civ. App.—Amarillo 1976, no writ).

To prove a retaliatory discharge claim, the employee must show that his discharge would not have

occurred when it did if the employee had not filed a workers’ compensation claim. See Haggar

Clothing Co. v. Hernandez, 164 S.W.3d 386,388 (Tex. 2005). The Texas Supreme Court has held

that ifthe plaintiff’s discharge results from the uniform enforcement ofa reasonable absence control

policy,thereisnoviolationofsection45l.001 asamatteroflaw. See Tat Divislon-Tranter, Inc. v.

Can’ozza, 876 S.W.2d 312,313 (Ta. 1994).

       Oncor moved for summary judgment on the ground that Adams was discharged due to the

uniform application of its salary continuation policy, which includes an absence control plan. The

policy submitted by Oncor as part of its summary judgment evidence states that if an employee

receiving salary continuation benefits does not return to work performing “the essential job duties”

ofhis position within six months ofthe date he begins receiving benefits, hisjob will be terminated.

Oncor also submitted two letters sent to Adams informing him that his employment with the company



                                               -5-
would be terminated as of February 29. 2008 if he did       not return   to work performing the essential

duties of his position by that time. Adams does not dispute that he was unable to perform the

essential job duties ola senior troubleshooter at the end   of   the six—month salary continuation period.

Rather, Adams contends that, because he returned to work at Oncor as a dispatcher before the

expiration of the six month period, Oncor’s salary continuation policy and absence control plan did

not apply to him. We disagree.

        The salary continuation policy states that an employee must return to work performing “the

essential job duties of [hisi position” within six months of beginning to receive benefits to avoid

termination of his employment. Adams’s position with Oncor was that of a senior troubleshooter.

Although Adams was given temporary work as a dispatcher, this did not, by itself, effect a change in

his position with Oncor as is demonstrated by the thct that he was asked to apply for a position as a

dispatcher while working in the job temporarily. Oncor submitted evidence that the job duties ofa

senior troubleshooter included climbing poles and structures, frequently stooping, kneeling,

crouching. and twisting. as well as lifting and carrying weights up to twenty pounds individually and

upto two   hundred pounds with the assistance of other crew members or equipment. Adams conceded

that, after his accident, he was no longer capable of performing the essential functions of a senior

troubleshooter. Because Adams was not capable ofperforming the essential functions of his position

at the end of his salary continuation period. the policy applied to terminate his employment. See e.g.

Coney v. TXU Corp. No. 05-05-00203-CV. 2006 WL 226041 (Tex. App.—Dallas Jan. 13, 2006, pet.

denied) (mem. op.).

       Adams argues that the policy itself contemplates allowing an employee to return to work in

a restricted capacity. In support of this argument, Adams points to a provision of the policy requiring

the employee to promptly provide Oncor with medical documentation of the employee’s ability to




                                                —6—
return to work, including the ability to return to “restricted duty status.” Nothing in the poi icy.

ho\\cvcr, requires Oncor to provide injured employees with restricted or lighter duty vork. The

policy merely requires the affected employee to inform Oncor of his ability to perform such work.

Furthermore, although the policy contemplates that an employee may he able to work in a restricted

capacity during his salary continuation period, this does not change the requirement that, within six

months of the date the salary continuation period begins, the employee must be able to fulfill the

essential functions of the position for which he was employed to he able to retain his employment

with the company. See Id.

       Adams contends that Oncor had an unwritten rule” that if an employee was injured while on

the job. as long as he was not breaking safety rules or under the influence of drugs or alcohol at the

time of the accident, Oncor would allow the employee to return to work in a lighter duty position.

In his deposition, Adams testified that he “heard about” two men who were injured and allowed to

continue working for the company on a permanent basis in less physically demanding positions.

Adams conceded. however, that he had no personal knowledge of the circumstances surrounding their

changes in position and he was not aware of the specifics of their situations. But Adams suggests this

evidence shows that Oncor did not uniformly apply its absence control policy.

       Adams’s testimony that he “heard about” others who were moved to lighter duty positions

rather than being terminated is conclusory absent any personal knowledge of the matters being

testified to. See (‘auroza. 876 S.W.2d at 3 14. Adams provided no evidence to show that the two

employees at issue were moved to lighter duty by Oncor as opposed to being hired for open positions

in lighter duty areas following submission of an application and receipt of a satisfactory fitness for

duty evaluation fi’om a physician. Indeed, Adams testified that he had no knowledge of anyone at the

company who was allowed to remain employed at the end of the salary continuation period when he




                                                —7
could not perlorm the essential   functions of   his position. Accordingly, the   testimony is not sufficient


to raise a fact issue to defeat summary judgment. Id.

        Adams also appears to contend that Oncor violated section 451001 by failing to

accommodate his disabilities with a permanent job translCr to lighter duty work. As stated above.

Oncor’s salary continuation policy requires that an employee be able to perform the essential duties

of his position within six months of the start of the salary continuation period for him to maintain his

employment with the company. To the extent Adams is contending that the application of the policy

to him constitutes a failure by Oncor to accommodate his disabilities, that is not the type of alleged

discrimination addressed by section 451.001. Section 451.001 prohibits only discrimination based

on the filing of a workers’ compensation claim or the institution of a proceeding under the Texas

Workers’ Compensation Act. Nothing in section 451.001 prevents the application of an absence

control policy to an injured employee who can no longer perform the essential duties of his job. See

Garcia v, Allen, 28 S.W.3d 587, 601 (Tex. App.—Corpus Christi 2000, pet. denied). And to the

extent Adams is contending Oncor discriminated against him by failing to hire him for the dispatcher

job, section 451 .001 does not apply to claims for failure to rehire afier an employee has been

terminated. See Smith, 536 S.W.2d at 85.

        Finally, Adams contends that he provided sufficient circumstantial evidence of a causal

connection between his termination and his filing a workers’ compensation claim to preclude

summary judgment. Where the employer has established that the employee was terminated pursuant

to a uniformly enforced absence control plan, circumstantial evidence of a causal connection is

immaterial. See Hernandez. 164 S.W.3d at 388. Even if we examine the evidence Adams relies on.

however, we conclude it is insufficient to create a fact issue.

       Adams first points to the fact that Oncor employees were aware of his workers’ compensation




                                                    —8--
claim when they    terminated   his employment. An employers kno\vledge otan employee s workers

compensation claim does not, standing alone, constitute evidence of a causal     connection.   It merely

places the employee in the class ol’ persons protected by section 451 .001 and must he considered

along with other evidence. See Garcia, 28 S.W.3d at 601.

        Adams next states that his supervisors at Oncor demonstrated a negative attitude toward his

injured condition by encouraging him to return to working forty hours per week and erroneously

stating on certain inj ury reports that he lost no time from work and spent less than twenty—four hours

in the hospital. Adams testitied, however, that no one at Oncor gave him any problems about either

his injury or his \vorkers compensation claim. Adams stated that his supervisor encouraged him to

work forty hours a week because ii would help his application for the dispatcher position. And as for

the injury reports. the inaccurate information appears to have had no effect on Adams’s claim for

workers’ compensation. It is undisputed that Oncor tiled the workers’ compensation claim on

Adams’s behalf immediately after he was injured. As has been noted by at least one other court, it

would seem “highly irregular” for an employer to discriminate against an employee on the basis of

a workers’s compensation claim that the employer itselffiled. See Burch v.   City ofNacogdoches,    174

F.3d 615, 623 (5th Cir. 1999).

       Adams points to Oncor’s alleged failure to adhere to its own policies as evidence of a negative

attitude toward his injured condition. In support of this. Adams again contends that Oncor failed to

follow its salary continuation policy when it terminated him despite the fact that he returned to work

as a dispatcher.    As discussed above, however, the policy required Adams to return to work

performing the essential duties of a senior troubleshooter, not a dispatcher, to avoid termination. The

evidence shows that Oncor followed its policy in terminating Adams six months after he began

receiving salary continuation benefits.




                                                —9--
       l3ased on the loregoinu. we conclude Oncor presented sufficient summaryjudgnient evidence

to show that it terminated Adamss employment based on the unilbrm application of a reasonable

absence control policy. We further conclude Adams failed to present sufficient sui mary judgment

evidence to raise a fact issue on his claim. Accordingly, the trial court correctly concluded that

Adams’s termination did not violate section 45 1.001 as a matter of law. See Carrozza. 76 S.W,2d

313. We resolve Adams’s first fuur issues against him. Because we have resolved the first four

issues in Oncors lhvor, it is unnecessary for us to address the arguments presented in Adams’s fifth

issue challenging ()ncors alternative ground for summary judgment.

       We affirm the trial court’s summary judgment.




                                                           CE

I 10618F.P05




                                              —10—
                                Lnurt        tit  Appcul5
                        FiftI! Ditrirt        aif t!ixzu at Oa11ai

                                       JUDGMENT
BRUCE ADAMS. Appellant                                 Appeal from the 6 Judicial District Court
                                                       of Dallas County. Texas. (Tr.Ct.No. 10-
No. 05-1 1-0061 8-CV          V                        02339-F).
                                                       Opinion delivered by Justice Morris,
ONCOR ELECTRIC DELIVERY                                Justices Francis and Murphy participating.
COMPANY, L.LC., Appellee

         In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED. It is ORI)ERED that appellec Oncor Electric Delivery Company, LL.C. recover
its costs of this appeal from appellant Bruce Adams.


Judgment entered October 31. 2012.




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                                                    JOSIZPH BMORRlS
                                                   JEtTlCE
