                            NUMBER 13-07-00573-CV

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


KIMANE PETRILLOSE,                                                        Appellant,

                                          v.

CHRISTUS SPOHN HEALTH SYSTEM
CORPORATION D/B/A CHRISTUS SPOHN
HOSPITAL CORPUS CHRISTI-SOUTH,                                            Appellee.


                  On appeal from the 319th District Court
                        of Nueces County, Texas.


                         MEMORANDUM OPINION

 Before Chief Justice Valdez and Justices Rodriguez and Benavides
            Memorandum Opinion by Justice Rodriguez

      Appellant Kimane Petrillose challenges the summary judgment granted by the trial

court in favor of appellee Christus Spohn Health System Corporation d/b/a Christus Spohn

Hospital Corpus Christi-South (Spohn), which dismissed Petrillose's employment
discrimination and retaliation claims. By five issues, Petrillose argues that the trial court

erred in: (1) granting summary judgment on her disability discrimination claim; (2) granting

summary judgment on her workers' compensation retaliation claim; (3) granting summary

judgment on her claim for lost wages and benefits; (4) granting summary judgment on her

claim for front pay and back pay during the time she was in school; and (5) sustaining

certain objections to summary judgment evidence. We affirm in part and reverse and

remand in part.

                                    I. BACKGROUND

       Petrillose was employed by Spohn as a nuclear medicine technologist. During her

employment with Spohn, Petrillose suffered numerous injuries to her right knee—both on

and off the job—and underwent several surgeries to repair those injuries. On August 10,

2001, Petrillose tore the anterior cruciate ligament (ACL) in her right knee while playing

soccer. She recovered from that injury and returned to work. On December 22, 2001,

while on the job, Petrillose tore her ACL again when a wheelchair she was pushing

suddenly stopped. She filed a workers' compensation claim in connection with that injury

on December 24, 2001. On August 19, 2002, Petrillose reinjured her right knee on the job

when she tripped over a set of x-ray cassettes on the floor of a hospital hallway. She

reported her injury to Spohn the next day. In March 2003, Petrillose underwent surgery to

repair the damage from her August 19, 2002 injury.              She applied for workers'

compensation benefits on March 18, 2003.

       In early January 2004, Petrillose had another surgery on her right knee. She took

Family Medical Leave Act (FMLA) leave from January 7 to February 1, 2004. In a note

from her doctor dated February 2, 2004, Petrillose was released to work with the following

restrictions: no pushing or pulling; no lifting greater than twenty pounds; no climbing or

                                             2
heights; and no kneeling or squatting. Petrillose performed her job with these restrictions

from February 2 to June 28, 2004.

        On June 30, 2004, Petrillose underwent a further knee surgery. Petrillose took

additional FMLA leave following that surgery. On August 9, 2004, Spohn received a work

status report from Petrillose's doctor indicating that Petrillose would be released to work

on August 31, 2004, with, in addition to those from her February 2, 2004 work release, the

following restrictions: no bending or stooping; no twisting; no standing or walking for more

than two hours; no running; no driving or operating heavy equipment; no lifting weights

more than ten pounds; and that she must wear a knee brace at work. Spohn did not

accept this return to work authorization. On August 24, 2004, Petrillose's available FMLA

leave expired. Spohn informed Petrillose that she was eligible to apply for extended

medical leave under Spohn's internal leave of absence policy.

        At the end of August 2004, Petrillose decided to have another knee surgery, after

which her doctor did not authorize her to return to work.1 Petrillose applied for and took an

extended leave of absence during the fall of 2004 following that surgery. On December

1, 2004, the date Petrillose's extended medical leave expired, Spohn terminated

Petrillose's employment. After her termination, Petrillose underwent two further knee

surgeries. During the period of her extended leave and after her termination, Petrillose

applied for and drew social security disability benefits and long-term disability payments

from her private insurer. She also enrolled in college and eventually completed her


        1
           The parties dispute the events that occurred in August 2004 with regard to Petrillose's return to work
authorization. Petrillose contends that, had Spohn not denied her request to return to work with the
restrictions contained in the August 9, 2004 work status update, she would not have elected to have the
additional knee surgery at the end of August 2004 and would have returned to work with the am ended
restrictions. Spohn argues there is no evidence Petrillose would have m ade that decision and that, even if
there was, the additional restrictions im posed by the August 9 update prevented Petrillose from perform ing
the essential functions of her job.

                                                       3
bachelors degree in May 2007. Petrillose was not officially released to work by her doctor

until July 21, 2006.

        Petrillose filed suit against Spohn, claiming that she was discharged because of her

disability and in retaliation for filing a workers' compensation claim. See TEXAS LAB. CODE

ANN . §§ 21.051, 451.001 (Vernon 2006). Spohn filed a no-evidence and traditional motion

for summary judgment arguing that it was entitled to: (1) summary judgment on Petrillose's

disability discrimination claim because she was not a qualified individual with a disability;

(2) summary judgment on Petrillose's retaliation claim because there was no evidence of

a causal link between Petrillose's workers' compensation claims and her termination; (3)

summary judgment on Petrillose's claims for lost wages and benefits for the period when

Petrillose was unable to work; and (4) summary judgment on Petrillose's claims for back

pay and front pay for the period she was in school. Petrillose responded to Spohn's motion

for summary judgment on May 24, 2007.

        Spohn filed objections to certain evidence in Petrillose's response to Spohn's motion

for summary judgment. The trial court issued an order granting Spohn's objections and

then entered its final judgment, granting Spohn's motion for summary judgment and

dismissing all of Petrillose's claims.2 However, on the day the judgment was entered,

Petrillose filed a motion to set aside the court's order granting Spohn's objections to

Petrillose's summary judgment evidence. Petrillose then filed a motion for new trial,

making essentially the same arguments she made in her motion to set aside. After hearing

Petrillose's motions, the trial court decided to deny Spohn's hearsay objections but to grant

the remaining objections. The trial court issued an order (1) granting, in part, and denying,


        2
          The trial court did not specify whether it was granting Spohn's m otion for no-evidence sum m ary
judgm ent or m otion for traditional sum m ary judgm ent or both.

                                                    4
in part, Spohn's objections to Petrillose's summary judgment evidence; and (2) re-issuing

its judgment granting Spohn's motion for summary judgment and denying and dismissing

with prejudice all claims by Petrillose. This appeal ensued.

                                     II. DISCUSSION

A. Objections to Evidence

       We first address Petrillose's fifth issue—which challenges the trial court's ruling on

Spohn's objections to certain statements made by Petrillose in her affidavit in response to

the motion for summary judgment—to determine whether we can appropriately consider

that evidence in our analysis of the remainder of Petrillose's issues.

       1. Standard of Review

       We review a trial court's decision to admit or exclude summary judgment evidence

for abuse of discretion. Krishnan v. Law Offices of Preston Henrichson, P.C., 83 S.W.3d

295, 299 (Tex. App.–Corpus Christi 2002, pet. denied). A court abuses its discretion if it

acts arbitrarily or unreasonably or without reference to guiding rules or principles.

Owens-Corning Fiberglass Corp. v. Malone, 972 S.W.2d 35, 43 (Tex.1998). However,

even if the trial court errs by considering improperly admitted evidence at summary

judgment, we will not reverse a trial court's erroneous evidentiary ruling unless the party

requesting reversal can demonstrate that the error probably caused the rendition of an

improper judgment. TEX . R. APP. P. 44.1. A trial court's ruling on evidence is not usually

reversible unless the appellant can demonstrate that the whole case turned on the

particular evidence admitted or excluded. Interstate Northborough P'ship v. State, 66

S.W.3d 213, 220 (Tex. 2001). Moreover, the exclusion of evidence is harmless if the

evidence is merely cumulative of other properly admitted evidence. Id.



                                             5
       2. Analysis

       Petrillose complains that the trial court erred in excluding certain statements from

her affidavit on the basis that she had no personal knowledge of the underlying facts

and/or she was making conclusory statements. "To constitute competent summary

judgment evidence, affidavits must be made on personal knowledge, set forth facts as

would be admissible in evidence and show affirmatively that the affiant is competent to

testify to matters stated therein." Krishnan, 83 S.W.3d at 299 (citing TEX . R. CIV. P.

166a(f)). If an affidavit is offered in opposition to summary judgment, it must set forth facts

rather than legal conclusions. Id. (citing Larson v. Family Violence & Sexual Assault

Prevention Ctr. of S. Tex., 64 S.W.3d 506, 514 n.6 (Tex. App.–Corpus Christi 2001, pet.

denied)). "Statements of subjective belief are no more than conclusions and are not

competent summary judgment evidence." Id. (citing Tex. Div.–Tranter, Inc. v. Carrozza,

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

       Spohn objected to the following statements, among others, in Petrillose's supporting

affidavit as conclusory, speculative, and not based upon personal knowledge: (1) "During

the time I was out on leave in June 2004, the communication with [my supervisor]

essentially ceased. She would not take my phone calls[,] and despite leaving repeated

messages asking to be put back to work, she did not respond to my phone calls"; (2)

"Spohn would not accept me with restrictions"; and (3) "If Spohn had allowed me to return

to work on August 30th[, 2004], my physician would not have taken me off work beginning

August 31st and I would not have undergone manipulation surgery." Petrillose argues that

the statements were based on her personal knowledge and, thus, improperly excluded by

the trial court.



                                              6
              a. "[My supervisor] would not take my phone calls . . . ."

       Spohn argues that this statement implies that Petrillose's supervisor was aware of

each of Petrillose's calls and made a conscious decision not to return the calls. Petrillose

contends that she had personal knowledge that she left messages for her supervisor and

that she did not receive any return phone calls. However, the statement conveys more

than these simple facts. We agree with Spohn that the statement, as a whole, implies that

Petrillose's supervisor was purposefully avoiding Petrillose's phone calls. Petrillose had

no knowledge of her supervisor's intent. In fact, Petrillose had no knowledge that her

messages even reached her supervisor. Accordingly, this statement is not competent

summary judgment evidence because it is both speculative and outside the knowledge of

the affiant, Petrillose. See Krishnan, 83 S.W.3d at 299. We conclude that the trial court

did not abuse its discretion in excluding this statement from evidence. Petrillose's fifth

issue is overruled to the extent it relates to this complained-of statement.

              b. "Spohn would not accept me with restrictions."

       Spohn argues that Petrillose had no personal knowledge as to whether Spohn

would have permitted Petrillose to return to work with restrictions. We agree. To support

this statement, Petrillose offered the following factual statements: "I made phone calls and

sent emails, however my efforts were unsuccessful"; "No one ever responded to my phone

calls and emails"; "They were ignoring me, pushing me off"; "Spohn was trying to get rid

of me, they didn't want me back to work"; "I was specifically told by a recruiter in human

resources not to apply until I had no restrictions." These facts do not establish that

Petrillose had personal knowledge of Spohn's underlying reasons for refusing her return

to work authorization, and the trial court did not abuse its discretion in sustaining Spohn's

objection to the statement. See Krishnan, 83 S.W.3d at 299. And even if those facts did

                                             7
establish Petrillose's personal knowledge and the evidence was improperly excluded, the

trial court's error would not be reversible because the statement was cumulative of other

summary judgment evidence—such as a prior statement in the affidavit that Petrillose was

informed at some point during August 2004 that she could not return to work unless she

did not have any restrictions. See Interstate Northborough P'ship, 66 S.W.3d at 220. We

overrule Petrillose's fifth issue in so far as it relates to her statement that Spohn would not

accept her back to work with restrictions.

              c. "My physician would not have taken me off work . . . ."

       Spohn argues that Petrillose had no knowledge as to whether her doctor would have

released her for work if Spohn had accepted the restrictions in her doctor's August 9, 2004

status update. We agree that Petrillose did not offer a sufficient factual basis to establish

her personal knowledge of her doctor's state of mind. See Krishnan, 83 S.W.3d at 299.

However, we believe that she did have personal knowledge of her own state of mind. See

id. We conclude the trial court erred in excluding the last portion of Petrillose's statement

that she "would not have undergone manipulation surgery" if Spohn had allowed her to

return to work under the restrictions of the August 9, 2004 status update. See id.

Moreover, we conclude that this error is reversible because whether or not Petrillose would

have chosen to return to work in August 2004 rather than undergo another surgery is a

crucial fact issue, without which Petrillose would not have been able to defeat summary

judgment. See Interstate Northborough P'ship, 66 S.W.3d at 220. We, therefore, sustain

Petrillose's fifth issue with regard to her statement that she would not have elected the late

August 2004 surgery if Spohn had allowed her to return to work with restrictions.




                                              8
B. Summary Judgment

       In her first, second, third, and fourth issues, Petrillose complains that the trial court

erred in granting Spohn's motion for summary judgment.

       1. Standard of Review

       We review de novo a trial court's summary judgment decision. Thomann v. Lakes

Reg'l MHMR Ctr., 162 S.W.3d 788, 794 (Tex. App.–Dallas 2005, no pet.). In a traditional

summary judgment, the issue on appeal is whether the movant met the summary judgment

burden by establishing that no genuine issue of material fact exists and that the movant

is entitled to judgment as a matter of law. TEX . R. CIV. P. 166a(c); Johnson v. Hoechst

Celanese Corp., 127 S.W.3d 875, 878 (Tex. App.–Corpus Christi 2004, no pet.). In

reviewing a summary judgment, we accept as true all evidence favorable to the

nonmovant, indulging every reasonable inference and resolving any doubts in the

nonmovant's favor. Davis v. City of Grapevine, 188 S.W.3d 748, 754 (Tex. App.–Fort

Worth 2006, pet. denied) (citing Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661

(Tex. 2005)); Johnson, 127 S.W.3d at 878. A defendant is entitled to summary judgment

if it conclusively negates "at least one essential element of the plaintiff's cause of action."

Johnson, 127 S.W.3d at 878 (citing Am. Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420,

425 (Tex. 1997)). If the movant's summary judgment evidence establishes its right to

judgment as a matter of law, the burden shifts to the nonmovant to produce "competent

controverting evidence raising a genuine issue of material fact with regard to the element

challenged by the defendant." Niu v. Revcor Molded Prods Co., 206 S.W.3d 723, 727

(Tex. App.–Fort Worth 2006, no pet.).




                                               9
      In a no-evidence summary judgment, a party moves for summary judgment on the

ground that there is no evidence of one or more of the essential elements of a claim on

which the adverse party has the burden of proof. TEX . R. CIV. P. 166a(i). The nonmovant

must then present evidence raising a genuine issue of material fact on the challenged

elements. Id. "We review a no-evidence summary judgment under the same standard as

a directed verdict." Thomann, 162 S.W.3d at 795 (citing King Ranch v. Chapman, 118

S.W.3d 742, 750-51 (Tex. 2003)). The record is examined in the light most favorable to

the nonmovant, and we credit evidence favorable to the nonmovant if reasonable jurors

could and disregard contrary evidence unless reasonable jurors could not. Mack Trucks,

Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). Summary judgment is proper if the

nonmovant produces more than a scintilla of probative evidence raising a fact issue. TEX .

R. CIV. P. 166a(i). "A party produces more than a scintilla of evidence if the evidence

allows reasonable and fair-minded people to differ in their conclusions." Id.

      When the trial court fails to indicate its basis for granting summary judgment, the

appellant "'must show it is error to base it on any ground asserted in the motion.'"

Johnson, 127 S.W.3d at 878 (quoting Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473

(Tex. 1995)). We will affirm the summary judgment if any of the movant's grounds is

meritorious. Id.

      2. Disability Discrimination

      By her first issue, Petrillose challenges the trial court's granting Spohn's motion for

summary judgment on her disability discrimination claim. Specifically, Petrillose argues

that she was able to perform the essential functions of her job with reasonable

accommodations and that Spohn refused to make such accommodations for her.



                                            10
       Under the Texas Labor Code, an employer cannot discriminate against an employee

with regard to compensation or the terms, conditions, or privileges of employment because

of race, color, disability, religion, sex, national origin, or age. TEX . LAB. CODE ANN . §

21.051. Because "one purpose of chapter 21 of the labor code" is to execute the policies

of the Americans with Disabilities Act, we look to analogous federal law in reviewing a claim

for disability discrimination under Texas law. Thomann, 162 S.W.3d at 795-96 (citing

Haggar Apparel Co. v. Leal, 154 S.W.3d 98, 100 (Tex. 2004)). "Accordingly, Texas courts

follow federal precedent for guidance when interpreting chapter 21." Davis, 188 S.W.3d

at 757.

       To prevail on a disability discrimination claim, the plaintiff must generally prove that

(1) she has a disability, (2) she is qualified for the job, and (3) an adverse employment

action was taken because of her disability. Burch v. City of Nacogdoches, 174 F.3d 615,

619 (5th Cir. 1999). Here, Spohn did not dispute that Petrillose had a disability and

suffered an adverse employment action; Spohn argued solely that Petrillose was not a

qualified individual with a disability. Thus, the only relevant inquiry for this Court is whether

Petrillose was qualified for her job.

       Section 21.105 of the labor code provides that employers can only be held liable for

"discrimination because of or on the basis of a physical or mental condition that does not

impair an individual's ability to reasonably perform a job." TEX . LAB. CODE ANN . § 21.105

(Vernon 2006). Accordingly, Petrillose had the burden to prove she could reasonably

perform, or was "otherwise qualified" for, her job. Ketcher v. Wal-Mart Stores, Inc., 122 F.

Supp. 2d 747, 755 (S.D. Tex. 2000). Petrillose can prove she was otherwise qualified for

her job by showing that (1) she could perform all essential job functions without

accommodations, or (2) with some reasonable accommodation by Spohn, she could have

                                               11
performed the job. Id.; see Davis, 188 S.W.3d at 758 (holding that a plaintiff establishes

her prima facie case based on her employer's failure to provide reasonable

accommodation by proving that, with reasonable accommodations, she could perform the

essential functions of her job and that the employer refused to make those

accommodations).

       It is undisputed that Petrillose worked from February through June 2004 with the

following restrictions enunciated in her February 2, 2002 doctor's note: no pushing or

pulling; no lifting weights more than twenty pounds; no climbing or heights; and no kneeling

or squatting. Spohn does not controvert that Petrillose also received positive employment

evaluations during this period. It is further undisputed that Spohn refused to allow

Petrillose to return to work in August 2004 after Petrillose's doctor presented Spohn with

an updated list of restrictions after Petrillose's June 30, 2004 surgery.

       In her response to Spohn's motion for summary judgment, and now on appeal,

Petrillose contends that the restrictions imposed by the August 9, 2004 doctor's note were

the same or similar to the restrictions under which she worked from February through June

2004. Petrillose presented evidence in her summary judgment response that the August

9, 2004 status update sent by her doctor to Spohn added the following restrictions to the

list from the February 2, 2004 note: no bending or stooping; no twisting; no running; no

walking or standing for more than two hours at a time; no driving or operating heavy

equipment; and that Petrillose must wear a knee brace at all times. Petrillose also

attached to her summary judgment response an April 29, 2004 email from the Spohn

human resources director stating that Petrillose was "for the most part, performing the

essential functions of [her] job" with the restrictions of no bending, stooping, pushing,

pulling, and lifting. Evidence was adduced showing that, as part of the accommodations

                                             12
being made during the February to June 2004 time period, other hospital employees

helped Petrillose transport and lift patients. Moreover, in her affidavit in response to

Spohn's motion for summary judgment, Petrillose avers that she would not have

undergone the late August 2004 surgery if Spohn had permitted her to return to work under

the restrictions from the August 9 status update.3

        Spohn argues that the additional restrictions imposed in the August 9, 2009 status

update prevented Petrillose from being able to perform the essential functions of her job;

Spohn contends that the type of activities prohibited by the August 9 status update (e.g.

bending and stooping, pushing and pulling, twisting, walking, and standing) were frequent

and essential aspects of Petrillose's job.                 And Spohn disagrees that the evidence

demonstrates a history of similar accommodation for those restrictions, instead insisting

that the added restrictions transformed the earlier accommodations into an unreasonable

burden. However, we cannot draw that conclusion. The relevant inquiry is not whether the

August 9, 2004 restrictions prevented Petrillose from performing her job, in general.4

Rather, the crucial question is whether the restrictions prevented Petrillose from performing

the essential functions of her job with or without reasonable accommodations by Spohn.

See Ketcher, 122 F. Supp. 2d at 755.




         3
            Having previously concluded that this statem ent was im properly excluded by the trial court, we now
properly consider this evidence in our analysis of Petrillose's first issue. See Krishnan v. Law Offices of
Preston Henrichson, P.C., 83 S.W .3d 295, 300, 303 (Tex. App.–Corpus Christi 2002, pet. denied) (reversing
trial court's exclusion of certain sum m ary judgm ent evidence and then considering evidence previously
excluded by the trial court in its analysis of plaintiff's sum m ary judgm ent issue).

        4
           Spohn contends that, because Petrillose was never released to work by her doctor after her June
30, 2004 surgery, Petrillose was, as a m atter of law, unqualified for her job. In isolation, this fact seem s to
favor sum m ary judgm ent. However, in em phasizing this fact, Spohn ignores the evidence adduced by
Petrillose contesting the events of August 2004, evidence which creates a fact issue regarding Spohn's
decision to deny Petrillose accom m odation that m ay or m ay not have been substantially sim ilar to the
accom m odation it granted Petrillose from February through June 2004.

                                                      13
         Petrillose's evidence raised fact issues regarding (1) the similarities between the

restrictions observed by Petrillose in February through June 2004 and the restrictions in

the August 9, 2004 status update; and (2) whether the accommodations made during the

earlier part of 2004 would have sufficed to alleviate the problems raised by the August 9

restrictions.     This evidence is particularly compelling in light of Petrillose's affidavit

testimony that she would have returned to work had Spohn not refused her August 2004

work authorization with the attendant restrictions.

         As a result, we conclude that Petrillose has come forward with more than a scintilla

of evidence that she was otherwise qualified for her job, i.e. that she would have been able

to perform the essential functions of her job under the new restrictions from the August 9,

2004 doctor's note. See TEX . R. CIV. P. 166a(i). Moreover, we conclude that Petrillose's

evidence, viewed in the light most favorable to her, creates a genuine issue of material fact

as to whether she was otherwise qualified for her job and that Spohn failed to conclusively

negate this element of Petrillose's claim as a matter of law.5 See TEX . R. CIV. P. 166a(c);

Johnson, 127 S.W.3d at 878.

         Spohn argues that Petrillose is estopped from proving that she was qualified for her

job because of inconsistent statements Petrillose made in her applications for Social


        5
            Spohn also argues Petrillose failed to present evidence of pretext or intentional discrim ination to
refute Spohn's legitim ate, nondiscrim inatory reason for her term ination, that it had adm inistratively term inated
her em ploym ent when she exhausted all of her available m edical leave. Spohn contends that after it proferred
its nondiscrim inatory reason, Petrillose was obliged to com e forward with probative evidence that Spohn's
reason was false and that discrim ination was the true reason behind her term ination, citing Reeves v.
Sanderson Plumbing Prods., 530 U.S. 133, 143, 147-48 (2000). However, Spohn incorrectly applies this
particular burden-shifting fram ework to Petrillose's first issue— the burden-shifting test does not apply to
claim s that an em ployer has failed to m ake reasonable accom m odations. See Davis v. City of Grapevine,
188 S.W .3d 748, 758-59 (Tex. App.–Fort W orth 2006, pet. denied). In such a claim , "the em ployee has the
burden to show that the em ployer failed to im plem ent a reasonable accom m odation, and the em ployer can
defend by showing a business necessity or undue burden." Id. at 758. Here, Spohn does not prove that the
requested accom m odations would im pose an undue burden. Petrillose, thus, succeeded in creating a
genuine issue of m aterial fact by providing evidence that Spohn rejected accom m odations sim ilar to those
that it had previously accepted.

                                                        14
Security Disability Insurance (SSDI) and long-term disability insurance from her private

insurance carrier. In Cleveland v. Policy Management Systems Corporation, the United

States Supreme Court held that a disability discrimination plaintiff who has filed an earlier

claim for SSDI benefits "cannot simply ignore the apparent contradiction" between the

sworn statement that she was "unable to work" made in her SSDI application and the

contention that she is an otherwise qualified individual for purposes of her disability

discrimination claim. 526 U.S. 795, 806 (1999). In such a situation, the plaintiff must offer

"an explanation of any apparent inconsistency . . . sufficient to warrant a reasonable juror's

concluding that, assuming the truth of, or the plaintiff's good-faith belief in the earlier

statement, the plaintiff could nonetheless perform the essential functions of her job, with

or without reasonable accommodation." Id. at 807. Importantly, the court cautioned that

an SSDI application does not automatically estop a plaintiff from pursuing a claim for

disability discrimination. Id. at 805-06. The court reasoned that a disability discrimination

"suit claiming that the plaintiff can perform her job with reasonable accommodation may

well prove consistent with an SSDI claim that the plaintiff could not perform her own job (or

other jobs) without it." Id. at 803.

       In Johnson v. Hoechst Celanese Corporation, this Court directly addressed

Cleveland and the estoppel issue in the context of an application for long-term disability

benefits from a private insurer. Johnson v. Hoechst Celanese Corp., 127 S.W.3d 875,

880-82 (Tex. App.–Corpus Christi 2004, no pet.). In Johnson, we held that, merely

because she represented in her application for privately insured long-term disability

benefits that she was "totally disabled and unable to work," a plaintiff was not estopped

from asserting that she could work with reasonable accommodation but was discriminated



                                             15
against on the basis of disability because her employer refused her request for

accommodation. Id.

       Here, Petrillose applied for long-term disability benefits from her private insurer in

September 2004; she applied for SSDI benefits later in the fall of 2004.                Any

representations made on these applications proceeded Spohn's decision to deny

Petrillose's return to work authorization. In other words, at the time Spohn determined that

Petrillose could not return to work under the restrictions from her doctor's August 9, 2004

status update, Petrillose had not yet made any declarations regarding her total inability to

work. We conclude that Cleveland's estoppel doctrine does not apply to the facts of this

case. Petrillose produced evidence that she would have returned to work under the

restrictions from the August 9 status update and would not have elected the surgery she

underwent at the end of August if Spohn had allowed her to return to work accommodated

by those restrictions. Having made that decision in light of Spohn's rejection of her return

to work authorization, Petrillose then applied for long-term disability benefits to guarantee

some sort of income after the late August 2004 surgery. We refuse to foreclose this option

to plaintiffs. If we were to do so, potential plaintiffs would be prevented from seeking

disability benefits to which they are entitled after an employer has engaged in allegedly

discriminatory conduct in order to shield their future claim from this estoppel defense. We

conclude that such a result would not promote the rationale of Cleveland, which expressly

declined to erect absolute barriers to disability discrimination plaintiffs who had afforded

themselves of the opportunity to maintain their incomes even in the face of possible

discrimination. See Cleveland, 526 U.S. at 802-03.

       Petrillose's first issue is sustained.


                                                16
       3. Retaliation

       By her second issue, Petrillose argues that the trial court erred in awarding summary

judgment to Spohn on her workers' compensation retaliation claim. Petrillose contends

that Spohn did not disprove, as a matter of law, a causal connection between her workers'

compensation claims and her termination.

       Under the Texas Labor Code, an employer may not discharge an employee for filing

a good faith workers' compensation claim. TEX . LAB. CODE ANN . § 451.001(1). In response

to an employer's motion for summary judgment, the employee plaintiff must make a prima

facie case of retaliation by demonstrating a causal link between her termination and the

filing of a workers' compensation claim. Garcia v. Allen, 28 S.W.3d 587, 600 (Tex.

App.–Corpus Christi 2000, pet. denied). The employee need not prove that retaliation was

the sole cause of her termination. Green v. Lowe's Home Ctrs., Inc., 199 S.W.3d 514, 518

(Tex. App.–Houston [1st Dist.] 2006, pet. denied). Rather, "[she] must show that, 'but for'

the filing of the claim, the discharge would not have occurred when it did." Id. (quoting

Haggar Clothing Co. v. Hernandez, 164 S.W.3d 386, 386 (Tex. 2005)). The causal link

"may be established by direct or circumstantial evidence." Garcia, 28 S.W.3d at 600.

"Circumstantial evidence sufficient to establish a causal link between termination and filing

a compensation claim 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 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 Prods. v. Cazarez, 937 S.W.2d 444, 451 (Tex. 1996).




                                             17
        If the employee meets her prima facie burden to establish the causal connection,

the burden then shifts to the employer to "rebut the alleged improper termination by

showing there was a legitimate reason behind it."6 Garcia, 28 S.W.2d at 600 (citing

McIntyre v. Lockheed Corp., 970 S.W.2d 695, 697-98 (Tex. App.–Fort Worth 1998, no

pet.)). Once the employer makes such a showing, to survive the motion for summary

judgment, the burden shifts back to the employee to produce controverting evidence

raising a fact issue as to a retaliatory motive. Id. Long time periods between the claim for

benefits and the termination "'militate[] against a finding of retaliation.'" Burch, 174 F.3d

at 623 (quoting Burfield v. Brown, Moore & Flint, Inc., 51 F.3d 583, 590 (5th Cir. 1995))

(concluding that a 15-16 month period between the filing of the claim and discharge weighs

against the existence of retaliatory motive); see Tri-County Elec. Coop., Inc. v. Tidwell, 859

S.W.2d 109, 112 (Tex. App.–Fort Worth 1993, writ denied) (finding no inference of

retaliatory motive where employee plaintiff remained on the employer's payroll for two

years after the filing of his workers' compensation claim).                     Moreover, absent other

competent evidence of retaliation, an employee's subjective beliefs and impressions will

not suffice to prove retaliatory motive. Burch, 174 F.3d at 623 (citing Tex. Div.–Tranter,

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

        Petrillose contends that there is circumstantial evidence sufficient to establish a

prima facie causal connection between her workers' compensation filings and termination.

It is undisputed that Spohn had knowledge of her claims. Petrillose produced evidence



        6
            Although we previously concluded that a burden-shifting analytical fram ework does not apply to
Petrillose's claim that Spohn failed to m ake reasonable accom m odations, a burden-shifting analysis is proper
for Petrillose's workers' com pensation retaliation claim . See Garcia v. Allen, 28 S.W .3d 587, 600 (Tex.
App.–Corpus Christi 2000, pet. denied).

                                                     18
that her supervisor made sarcastic remarks to her when Petrillose reported her August 19,

2002 injury.7 The record also contains evidence that Spohn hired a temporary replacement

for Petrillose in late July 2004, and that the replacement was made a permanent employee

on September 17, 2004. Petrillose produced evidence that Spohn retained another injured

employee who, because she was confined to a wheelchair, had more severe restrictions

that Petrillose. Finally, Petrillose asserts that, while at work at the hospital, she heard

general comments by other employees that Spohn "always find[s] a way to get rid" of

employees who are injured on the job.

        Despite the foregoing circumstantial evidence, we cannot conclude that Petrillose

demonstrated a causal link between her filing for workers' compensation benefits and her

termination. First, Spohn's knowledge of the filings, alone, is not sufficient to establish a

causal link. See Green, 199 S.W.3d at 519. Next, absent evidence of the negative

attitude of Spohn employees who actually make termination decisions, we do not find that

the sarcastic comments of Petrillose's supervisor on one occasion prove any animosity on

the part of Spohn against injured employees. See M.D. Anderson Hosp. & Tumor Inst. v.

Willrich, 28 S.W.3d 22, 25 (Tex. 2000) (noting that stray remarks that were remote in time

from the challenged termination and were made by someone not directly involved with the

termination decision are not competent summary judgment evidence). Neither can we

conclude that Petrillose was discriminated against in comparison to similarly situated

employees. Petrillose produced evidence of one other injured employee who had been

transferred to a different position as an accommodation for her confinement to a


         7
            Petrillose produced no evidence that her supervisor was involved in the decision to term inate
Petrillose's em ploym ent or had the general authority to m ake term ination decisions. See Autozone v. Reyes,
272 S.W .3d 588, 592-93 (Tex. 2008).

                                                     19
wheelchair. However, the evidence does not show that Petrillose was similarly situated to

that employee because, unlike the relatively active nature of Petrillose's position, the

position to which the other injured employee was transferred was almost entirely sedentary.

See Autozone v. Reyes, 272 S.W.3d 588, 594 (Tex. 2008) (holding that the situation of the

compared employees must be "nearly identical," i.e. "[e]mployees with different

responsibilities, supervisors, capabilities, work rule violations, or disciplinary records" are

not similarly situated) (internal citations omitted); see also Williams v. Corpus Christi Indep.

Sch. Dist., No. 13-04-00455-CV, 2006 WL 2022502, at *7 n.3 (Tex. App.–Corpus Christi

July 20, 2006, pet. denied) (applying the "nearly identical" standard in the context of a

workers' compensation retaliation claim).

       Furthermore, we conclude that the temporary, and eventually permanent,

employment of another nuclear medical technologist did not violate Spohn's internal

policies and is, thus, not circumstantial evidence of a causal link. As part of her response

to Spohn's motion for summary judgment, Petrillose produced a copy of Spohn's leave-of-

absence policy. The policy expressly provides that employees who have exhausted their

leave available under the Family Medical Leave Act (FMLA) and who then take extended

medical leave "are not guaranteed reinstatement to work or placement in their former or

alternate job position." Petrillose does not dispute that she exhausted her FMLA leave on

August 24, 2004. As such, Spohn acted according to its policy when it permanently hired

another nuclear medical technologist to replace Petrillose on September 17, 2004.

       Moreover, Spohn was well within its rights to hire a temporary employee to cover

Petrillose's duties while she was out for surgery in July 2004. In her brief to this Court,

Petrillose contends that "Spohn replaced [her]" with another nuclear medical technologist


                                              20
in late July 2004; however, Petrillose does not acknowledge the distinction between a

temporary employee and permanent replacement. Although Spohn was not permitted to

fill Petrillose's position, as per its leave of absence policy, before the expiration of her

FMLA leave, we cannot conclude that Spohn was not entitled to engage temporary, flexible

assistance while Petrillose was out for surgery. Petrillose does not dispute that only she

and her supervisor were qualified to perform the duties of the nuclear medical technologist

position.   It is also uncontroverted that Petrillose's supervisor had numerous duties

independent of any assistance she provided to the technologist. Under the facts of this

case—where an employer is faced with the lengthy absence of an employee who is, if not

solely responsible for, one of only two people who can perform a particular job—we refuse

to tie employers hands and, therefore, decline to conclude that Spohn was not allowed to

hire a temporary employee to perform Petrillose's duties while she was out on medical

leave. In sum, based on the foregoing, we conclude that Petrillose has not made a prima

facie causal connection between her termination and workers' compensation claims, i.e.

that "but for" her workers' compensation filings Spohn would not have terminated her

employment when it did. See Garcia, 28 S.W.2d at 600; Green 199 S.W.3d at 518.

       And even if we were to conclude that Petrillose established a prima facie case of

retaliation, Spohn met its burden in this summary judgment proceeding to show that it had

a legitimate, nondiscriminatory reason for Petrillose's termination. See id. Spohn proffered

evidence that Petrillose was terminated because she had exhausted all leave available to

her under Spohn's employment policy, and as a result, Spohn administratively terminated

her employment on December 1, 2004. In response to this nondiscriminatory reason,

Petrillose did not produce sufficiently controverting evidence of retaliatory motive. Although


                                             21
Spohn admittedly had knowledge of Petrillose's filings, nearly three years elapsed between

Petrillose's first filing on December 24, 2001 and her termination on December 1, 2004.

This long period of time negates any inference that Petrillose's termination was in

retaliation for her workers' compensation filings.      See Tidwell, 859 S.W.2d at 112.

Additionally, Petrillose's assertion, based on overheard conversations, that Spohn looks

for ways to terminate injured employees is nothing more than a generalized impression or

belief. This sort of subjective speculation is insufficient to support Petrillose's contention

of retaliatory motive. See Burch, 174 F.3d at 623. Petrillose did not produce sufficient

controverting evidence of retaliatory motive to refute Spohn's legitimate, nondiscriminatory

reason for her discharge. See Garcia, 28 S.W.2d at 600.

       We, therefore, conclude that the trial court did not err in granting no-evidence and

traditional summary judgment in favor of Spohn on Petrillose's claims for workers'

compensation retaliation. Petrillose did not produce more than a scintilla of evidence of

the elements of her claim. See TEX . R. CIV. P. 166a(i). And Spohn conclusively proved

that Petrillose could not establish all elements of her retaliation claim and that, therefore,

it was entitled to summary judgment as a matter of law. See TEX . R. CIV. P. 166a(c).

Petrillose's second issue is overruled.

       4. Lost Wages and Benefits; Front and Back Pay

       In her third and fourth issues, Petrillose argues that the trial erred in awarding Spohn

summary judgment on her claims for lost wages and benefits between June 24, 2004 and

July 21, 2006, and front and back pay for the time Petrillose was enrolled in school. She

urges that, because Spohn could have reasonably accommodated her limitations and

because she would have returned to work in August 2004 if reasonable accommodations


                                             22
had been offered, there is a genuine issue of material fact and Spohn has not established

as a matter of law that Petrillose was unable to work during this time period and that she

would have voluntarily chosen to return to school. We agree.

       Lost wage damages are properly measured as the amount of money an employee

would have earned had she not been illegally terminated, less the amount she did earn

after her termination. West Telemarketing Corp. Outbound v. McClure, 225 S.W.3d 658,

(Tex. App.–El Paso 2006, pet. granted, judgm't vacated w.r.m.) (citing TEX . LAB. CODE ANN .

§ 21.258(c) (Vernon 2006)). Spohn argues that, because Petrillose was physically unable

to work from June 29, 2004 to June 21, 2006, she cannot show that she suffered any lost

wages. Spohn also contends that Petrillose failed to mitigate her damages when she

enrolled in school to finish her bachelor's degree and should, thus, be precluded from

recovering a double benefit, i.e. both front and back pay and her future earning potential

as a result of her degree. However, as previously discussed, Petrillose produced evidence

creating a fact issue as to whether she would have, in August 2004, returned to work and

not undergone further knee surgery if Spohn had permitted her to return to work under the

restrictions from her doctor's August 9, 2004 status update. This evidence could prove

that, absent Spohn's allegedly discriminatory action, Petrillose would have continued in her

job for those years instead of electing further surgeries and enrolling in school. Based on

that evidence, reasonable and fair-minded jurors could differ in their conclusions as to

whether Petrillose suffered damages as a result of her discriminatory termination. We

conclude that there remains a material issue of fact regarding Petrillose's damages. See

TEX . R. CIV. P. 166a(c). Petrillose's third and fourth issues are sustained.




                                            23
                                   III. CONCLUSION

      The final judgment is affirmed in so far as it grants summary judgment on

Petrillose's claim for retaliation. We reverse and remand the portions of the judgment

granting summary judgment on Petrillose's claims for disability discrimination, lost wages

and benefits, and front and back pay.



                                                   NELDA V. RODRIGUEZ
                                                   Justice

Memorandum Opinion delivered and
filed this 20th day of August, 2009.




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