      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                      NO. 03-03-00501-CV



                                 William Paul Serur, Appellant

                                                 v.

Churchill Forge Properties, a/k/a C F Management-Texas; Churchill Forge, Inc.; Churchill
    Forge Management, Inc.; and Churchill Forge Oak Springs Apts., Inc., Appellees




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
         NO. GN202274, HONORABLE PATRICK O. KEEL, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Appellant William Paul Serur brought three claims in district court against Churchill

Forge, his former employer: (1) a retaliatory discharge claim for filing a workers’ compensation

claim; (2) a retaliatory discharge claim for taking leave under the federal Family Medical Leave Act

(FMLA)1; and (3) a breach-of-contract claim on the dispersal of his 401(k) funds. Churchill Forge



       1
          Employers must grant an eligible employee up to a total of twelve work-weeks of unpaid
leave during any twelve-month period for one of the following reasons: for the birth and care of the
newborn child of the employee; for placement with the employee of a son or daughter for adoption
or foster care; to care for an immediate family member (spouse, child, or parent) with a serious
health condition; or, to take medical leave when the employee is unable to work because of a serious
health condition. See Family and Medical Leave Act (FMLA), 29 U.S.C. §§ 2601-2654 (2001).
filed a motion for summary judgment, which the district court granted. This appeal concerns two

issues: the granting of summary judgment in favor of Churchill Forge on all of Serur’s claims and

the overruling of objections made by Serur to some of Churchill Forge’s evidence presented in its

summary-judgment motion. We affirm the judgment of the district court.


                                           BACKGROUND

                Churchill Forge2 is a property management company specializing in apartment homes.

From April 1990 until July 2001, Serur worked as a rehabilitation coordinator specialist for Churchill

Forge, providing maintenance services and construction repair, and renovating properties owned by

Churchill Forge in Austin and San Antonio. Serur claims that, as a result of the exposure to toxic

mold at work, he suffers from tinnitus, skin fungus, fibromyalgia, fibromyositus, cognitive disorder,

vertigo, allergic rhinitis, depression, high blood pressure, and tension anxiety.

                Serur began taking days of sick leave on July 9, 2001, to undergo medical testing.

His physician wrote a letter to Churchill Forge on July 18, stating that Serur was undergoing

evaluation for mold exposure and should not be working. Serur continued to take paid sick leave.

After Serur had used all his sick days, Churchill Forge placed him on paid vacation time. On August

6, Serur’s physician sent another note to Churchill Forge stating that Serur was unable to return to




        2
          When Serur last worked in July 2001 he was employed by CF Management Texas.
Churchill Forge Properties and CF Management Texas are the same business entity. It is unclear
from the record how all of the other Churchill Forge entities are related. Because both parties agree
that they are related and that they are aligned on the issues, we will refer to the appellees collectively
as “Churchill Forge.”

                                                    2
work and that it was unknown when he would be able to return to work in the future. Two days

later, Serur signed an application for workers’ compensation benefits and asked Churchill Forge to

place him on FMLA leave. Churchill Forge sent Serur a letter dated September 27, stating that his

FMLA leave began that day and lasted for twelve weeks. In a follow-up letter on October 18,

Churchill Forge requested that Serur provide medical documentation of his condition. This letter

again reminded Serur of the effective date of his FMLA leave. Serur complied with the records

request, and around that same time he submitted an application for long-term disability benefits.

               Churchill Forge tried to contact Serur by phone on December 19 to discuss the end

of his FMLA leave. It is undisputed that Churchill Forge’s Human Resources Director, Cheryl Mills,

spoke with Serur on the phone on December 21 and informed him that his FMLA leave ended at that

time. Serur suggested that he would not be able to return to work because of his poor health and

expressed concerns over maintaining insurance coverage and receiving long-term disability benefits.

Mills followed up the telephone conversation with a letter dated December 21, reminding Serur that

his FMLA leave expired that day. The letter also requested that Serur get a medical release form

from his doctor before returning back to work. Churchill Forge did not hear from Serur for nineteen

days after the phone call on December 21.

               On January 9, 2002, Cheryl Mills informed Serur by letter that Churchill Forge

considered him terminated because he never reported back to work. On January 23, Serur returned

to Churchill Forge some work-related items, such as his company pager, and submitted his first

COBRA payment to continue his insurance coverage. Serur also requested information on how to

cash-out his 401(k) account. Serur does not contend that he asked for his job back or attempted to

                                                3
return to work. He withdrew his workers’ compensation claim in May 2002. Churchill Forge’s

disability carrier denied his application for long-term disability benefits.3

               Serur filed suit against Churchill Forge on July 15, 2002, alleging that Churchill

Forge fired him in retaliation for filing a workers’ compensation claim or, in the alternative, in

retaliation for going on FMLA leave. See Family and Medical Leave Act (FMLA), 29 U.S.C.

§§ 2601-2654 (2001); Tex. Lab. Code Ann. § 451.001 (West 1996). Serur also brought a breach of

contract action regarding his 401(k) benefits, which he claims were not timely distributed to him

resulting in a loss of some of the benefits. Churchill Forge filed a motion for summary judgment

arguing that there was no evidence of a causal relationship between Serur’s termination and his filing

of a workers’ compensation claim or exercising his FMLA rights and that there were legitimate bases

for his termination. Additionally, Churchill Forge argued that Serur’s breach-of-contract claim failed

because it was preempted by ERISA,4 and further, that it had fully complied with the terms of the

401(k) plan. The district court overruled Serur’s objections to some of Churchill Forge’s summary-




       3
         Although he requested a reconsideration of his claim, he was informed in May 2002 that
the denial had been upheld.
       4
          The Employee Retirement Income Security Act of 1974 (ERISA) is a federal law that sets
minimum standards for most voluntarily established pension and health plans in private industry.
ERISA requires plans to provide participants with plan information including information about plan
features and funding, provides fiduciary responsibilities for those who manage and control plan
assets, requires plans to establish a grievance and appeals procedure for participants to get benefits
from their plans, and gives participants the right to sue for benefits and breaches of fiduciary duty.
See 29 U.S.C. §§ 1001-1461 (2002).

                                                  4
judgment evidence and granted summary judgment in favor of Churchill Forge. This appeal

followed.


                                          DISCUSSION

               Serur presents two issues on appeal. First, he argues that the district court erred in

granting Churchill Forge’s motion for summary judgment. Second, he asserts the trial court erred

in allowing some of Churchill Forge’s summary-judgment evidence. We will address each in turn.



Summary Judgment

               In his first issue, Serur argues that the district court erred in granting Churchill

Forge’s summary-judgment motion.

               For all Serur’s claims, Churchill Forge sought both traditional summary judgment and

no-evidence summary judgment. The standards for reviewing traditional summary judgments are

well established: (1) the movant for summary judgment has the burden of showing that no genuine

issue of material fact exists and that it is entitled to judgment as a matter of law; (2) in deciding

whether there is a disputed material fact issue precluding summary judgment, evidence favorable to

the non-movant will be taken as true; and (3) every reasonable inference must be indulged in favor

of the non-movant and any doubts resolved in its favor. Tex. R. Civ. P. 166a(c); Nixon v. Mr. Prop.

Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). The function of summary judgment is not to

deprive litigants of the right to trial by jury but to eliminate patently unmeritorious claims and

defenses. Swilley v. Hughes, 488 S.W.2d 64, 68 (Tex. 1972). Summary judgment is affirmable on


                                                 5
appeal if any ground asserted in the motion for summary judgment is valid. Cincinnati Life Ins. Co.

v. Cates, 927 S.W.2d 623, 626 (Tex. 1996). Thus, a party moving for summary judgment must

conclusively prove all elements of its cause of action or defense as a matter of law. Tex. R. Civ. P.

166a(c); Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 233 (Tex. 1999); Walker v. Harris, 924

S.W.2d 375, 377 (Tex. 1996).

               A no-evidence summary judgment is properly granted if the non-movant fails to bring

forth more than a scintilla of probative evidence to raise a genuine issue of material fact as to an

essential element of the non-movant’s claim on which the non-movant would have the burden of

proof at trial. See Tex. R. Civ. P. 166a(i); Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706,

711 (Tex. 1997). Thus, a no-evidence summary judgment is essentially a pretrial directed verdict,

and we apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as

we apply in reviewing a directed verdict. Jackson v. Fiesta Mart, 979 S.W.2d 68, 70 (Tex.

App.—Austin 1998, no pet.) (citing Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex. App.—San

Antonio 1998, pet. denied)). Our task is to determine whether the plaintiff has produced any

evidence of probative force to raise fact issues on the material questions presented. See Jackson, 979

S.W.2d at 70. We must consider all the evidence in the light most favorable to the party against

whom the no-evidence summary judgment was rendered, every reasonable inference must be

indulged in favor of the non-movant, and any doubts resolved in its favor. Havner, 953 S.W.2d at

711.

               Where the trial court does not specify the grounds on which summary judgment is

based, we must affirm if any theories advanced in support of summary judgment are meritorious.

See Dow Chem. Co., v. Francis, 46 S.W.3d 237, 242 (Tex. 2001).


                                                  6
    Workers’ Compensation Claim

               The first claim on which Churchill Forge sought summary judgment is the workers’

compensation retaliatory-discharge claim. See Tex. Lab. Code Ann. § 451.001. The district court

did not state whether it was granting summary judgment based on the traditional or the no-evidence

motion. We will begin with a consideration of the no-evidence motion for summary judgment. See

Francis, 46 S.W.3d at 242.

               Section 451 of the Texas Labor Code prohibits an employer from discharging an

employee for filing a workers’ compensation claim in good faith. See Tex. Lab. Code Ann.

§ 451.001. The purpose of this section is to protect persons entitled to benefits under the workers’

compensation act and to prevent them from being discharged for filing claims to collect those

benefits. Trico Tech. Corp. v. Montiel, 949 S.W.2d 308, 312 (Tex. 1997). Thus, the section has both

remedial and deterrence objectives. See id. An employee can recover damages for retaliatory

discharge under this provision only if he proves that without his filing a workers’ compensation

claim, the discharge would not have occurred when it did. Continental Coffee Prods. Co. v. Cazarez,

937 S.W.2d 444, 450 (Tex. 1996).

               In order to make out a prima facie claim for retaliatory discharge under the Texas

Labor Code, the plaintiff must establish that (1) he engaged in a protected activity; (2) an adverse

employment action occurred; and (3) there was a causal connection between participation in the

protected activity and the adverse employment decision. Tex. Lab. Code Ann. § 451.001; West v.

Maintenance Tool & Supply Co., 89 S.W.3d 96, 105 (Tex. App.—Corpus Christi 2002, no pet.).

               It is undisputed that Serur engaged in a protected activity and that an adverse

employment action occurred. See Tex. Lab. Code Ann. § 451.001. Therefore, we must only


                                                 7
consider the question of a causal connection between participation in the protected activity and the

adverse employment decision. See id.; West, 89 S.W.3d at 105.

               The employee has the burden of demonstrating a causal link between the discharge

and the filing of the claim for workers’ compensation benefits. McIntyre v. Lockheed Corp., 970

S.W.2d 695, 697 (Tex. App.—Fort Worth 1998, no pet.); Duhon v. Bone & Joint Physical Therapy

Clinics, 947 S.W.2d 316, 318 (Tex. App.—Beaumont 1997, no writ). This causal connection may

be established by direct or circumstantial evidence. McIntyre, 970 S.W.2d at 697; Duhon, 947

S.W.2d at 319. Once the employee has established the causal link, the employer bears the burden

to rebut the alleged improper termination by showing there was a legitimate reason behind it.

McIntyre, 970 S.W.2d at 697-98; Duhon, 947 S.W.2d at 319. If an employer is able to demonstrate

a legitimate reason for discharge, the employee must produce controverting evidence of a retaliatory

motive. Lozoya v. Air Sys. Components, Inc., 81 S.W.3d 344, 348 (Tex. App.—El Paso 2002, no

pet.). Evidence sufficient to establish a causal link between the filing of a workers’ compensation

claim and termination may include: (i) knowledge of the claim by those making the decision to

terminate; (ii) expression of a negative attitude toward the employee’s injured condition; (iii) failure

to follow company policies; (iv) different treatment in comparison to similarly situated employees;

and (v) evidence that the stated reason for discharge was false. Cazarez, 937 S.W.2d at 451.

               Because Churchill Forge filed a no-evidence motion for summary judgment, the

burden falls on Serur to produce some evidence of probative force to raise a fact issue of a causal

connection. See Havner, 953 S.W.2d at 711. The summary-judgment evidence offered by Serur

establishes that Churchill Forge’s Human Resources Director, Cheryl Mills, knew about Serur’s

workers’ compensation claim during the summer of 2001. Mere knowledge of Serur’s claim does


                                                   8
not, however, establish a causal link between the alleged discriminatory behavior and the filing of

the claim. Rather, it is only one factor to be considered in light of the record as a whole. See

Cazarez, 937 S.W.2d at 451; Lone Star Steel Co. v. Hatten, 104 S.W.3d 323, 327-28 (Tex.

App.—Texarkana 2003, no pet.), Vallance v. Irving C.A.R.E.S., Inc., 14 S.W.3d 833, 837 (Tex.

App.—Dallas 2000, no pet.). Thus, we must consider other factors of the Cazarez test in order to

determine if Serur met his burden. See Hatten, 104 S.W.3d at 327-28.

               In relation to the second factor, an expression of a negative attitude, Serur offered the

deposition testimony of Frank Resnek, the president of Churchill Forge. He testified that after

speaking with Serur about his health conditions, he could tell that Serur “had serious, in my opinion,

emotional problems.” Resnek drew this conclusion after two phone conversations with Serur, who

explained his health problems and his related distress and despair. This evidence does not rise to

the level of an expression of a negative attitude toward Serur’s condition. See Cazarez, 97 S.W.2d

at 452 (employer is authorized to obtain information about applicant’s prior injuries and to contest

alleged on-the-job injuries); but see Wyler Indus. Works, Inc. v. Garcia, 999 S.W.2d 494, 501 (Tex.

App.—El Paso 1999, no pet.) (negative attitude shown by general manager being annoyed and

irritated by employee’s inability to perform light-duty work); Gorges Foodservice, Inc. v. Huerta,

964 S.W.2d 656, 666-67 (Tex. App.—Corpus Christ 1997, pet. withdrawn) (negative attitude shown

by forcing workers’ compensation claimant to suffer humiliation not inflicted on other employees).

Without more, we cannot conclude that Frank Resnek expressed any attitude, negative or positive,

regarding Serur’s condition. See Cazarez, 937 S.W.2d at 452 (employee’s subjective beliefs “are

no more than conclusions” and do not raise fact issue precluding summary judgment). In fact,

Resnek’s lay conclusions correspond to Serur’s medical diagnoses of depression and tension anxiety.


                                                  9
Serur has not produced any summary-judgment evidence in addition to the comments made by

Resnek. Therefore, Serur has not raised a fact issue precluding summary judgment on the second

factor.

                We now turn to the third factor, whether Churchill failed to follow company policies.

The company employee manual expressly provides that absence from work for three consecutive

days without notifying a supervisor will be considered a voluntary resignation. An additional section

provides that an employee’s position will not be held open past the end of the twelve-week

maximum leave period.5 It is undisputed that Serur did not return to work or contact anyone at

Churchill within three days of receiving the letter that notified him his FMLA leave had expired.

Serur’s conduct constituted a violation of Churchill’s three-day rule. In addition, he provided no

evidence regarding different treatment of other employees under the three day rule. Thus, Serur

failed to offer sufficient evidence of the third factor.

                As to the fourth factor, the summary-judgment evidence suggests that the extended-

leave policy may not have been uniformly applied. See Bocalbos v. National W. Life Ins. Co., 162

F.3d 379, 383 (5th Cir. 1998); Cazarez, 937 S.W.2d at 451. However, Churchill Forge also has a

three-day absence policy. Because Serur did not show any evidence regarding the three-day rule,

violation of this policy is sufficient to justify the termination. See Tex. R. Civ. P. 166a(i); Havner,

953 S.W.2d at 711.

                In relation to the fifth factor, the record is unclear on who made the final termination

decision. Serur believes this fact should establish that Churchill Forge’s justification is false. A



          5
         In deposition testimony, Serur acknowledged having a copy of the Churchill Forge
employee’s manual.

                                                   10
plaintiff’s prima facie case, combined with sufficient evidence to find that the employer’s asserted

justification is false, may permit the court to conclude that the employer unlawfully discriminated.

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000). In drawing this conclusion,

it is not enough to disbelieve the employer, but a court must believe the plaintiff’s explanation. Id.

at 147. Frank Resnek’s deposition testimony shows that he did not terminate Serur’s employment

himself but that he understood Serur’s employment ceased because he was too sick to return to work.

Joanie Loughborough, Serur’s supervisor, testified in her deposition that Serur was terminated

because he did not come back to work or contact Churchill Forge at the end of his leave. Cheryl

Mills testified in her deposition and her affidavit that Serur was terminated because he failed to

return to work or contact anyone about returning to work for more than three days after his leave

expired. Serur’s summary-judgment evidence does not raise any issues of fact to suggest that he may

have tried to contact Churchill Forge or return to work within three days of the expiration of his

FMLA leave. Thus, Serur has not offered any evidence to establish that the given reason for

termination is false. See Cazarez, 937 S.W.2d at 451.

               We have considered all of the factors of the Cazarez causality test to determine if

Serur met his burden to show more than a scintilla of probative evidence. See id.; Hatten, 104

S.W.3d at 327-28.      We conclude that Serur failed to meet his burden as to the workers’

compensation claim. Because Churchill Forge filed a no-evidence summary judgment motion and

Serur failed to raise a genuine issue of material fact, the summary judgment stands on those grounds.

Tex. R. Civ. P. 166a(i). We affirm the judgment of the district court granting summary judgment

for Churchill Forge on Serur’s alleged retaliatory discharge for filing a workers’ compensation claim.




                                                 11
    Family Medical Leave Act Claim

               Serur’s second cause of action was a FMLA retaliatory-discharge claim. To establish

a prima facie case for retaliation under the FMLA, the plaintiff must show that: (1) he is protected

under the FMLA; (2) he suffered an adverse employment decision; and (3) he either was treated less

favorably than an employee who had not requested leave or the adverse decision was made because

of the plaintiff’s request for leave. Bocalbos, 162 F.3d at 383 (5th Cir. 1998). If the plaintiff

succeeds in making a prima facie case, the burden shifts to the employer to provide a legitimate

nonretaliatory reason for the termination. Id. Once the employer has done so, the plaintiff must

show that the reason is a pretext for retaliation. Id.

               The requirements for establishing a retaliatory discharge claim under the FMLA,

therefore, are similar to those for establishing a workers’ compensation retaliatory discharge claim

under chapter 451 of the Texas Labor Code. Compare Bocalbos, 162 F.3d at 383 (test for FMLA

retaliatory discharge claim), with West, 89 S.W.3d at 105 (test for Texas workers’ compensation

retaliatory discharge claim). The third prong of an FMLA claim allows a plaintiff to show either that

he was treated less favorably than another employee or that the adverse decision was made because

of the plaintiff’s request for leave. Bocalbos, 162 F.3d at 383. Because these factors are part of what

we consider when determining a “causal link,” we conclude that the tests for retaliatory discharge

under the FMLA and under workers’ compensation are functionally equivalent. Compare Bocalbos,

162 F.3d at 383, with Cazarez, 937 S.W.2d at 451. Our discussion of the workers’ compensation

claim compels us to find that Serur failed his burden to produce some evidence in support of this

claim. Thus, we also affirm the district court’s grant of summary judgment in favor of Churchill

Forge on Serur’s retaliatory discharge claim under the FMLA.


                                                  12
    Breach-of-Contract Claim

               Finally, Serur seeks to overturn the grant of summary judgment on the breach-of-

contract claim. In particular, Serur argues that Churchill Forge delayed in paying him his 401(k)

benefits when requested. During the time period of the delay, the value of his account decreased,

and he thus seeks the difference in the value of his account between the time he requested a

disbursement and the date of actual disbursement. Churchill Forge argued in its motion for summary

judgment that it disbursed his funds in accordance with the ninety-day provisions of the 401(k)

Adoption Agreement.

               In this issue, Serur only challenges the use of Mills’s deposition testimony as not

being the best evidence of the Adoption Agreement. He does not argue on appeal that Churchill

Forge violated the Adoption Agreement. However, before the summary-judgment hearing and

without objection from Serur, Churchill Forge supplemented its motion with a second affidavit from

Mills and a copy of the Adoption Agreement. A review of the Adoption Agreement reveals that it

does not provide for a specific time for the disbursement of 401(k) funds, and the 401(k) plan itself

allows for a disbursement within ninety days of request if the Adoption Agreement does not provide

for a different time period. It is undisputed that Churchill Forge disbursed the funds within 90 days

of Serur’s request. Thus, the district court did not err in granting Churchill Forge’s motion for

summary judgment on this claim. Tex. R. Civ. P. 166a(c).

               We have found that Serur did not meet his burden to show more than a scintilla of

probative evidence regarding his workers’ compensation and FMLA retaliatory-discharge claims.

In addition, we have found no genuine issue of material fact in support of his breach of contract

claim. We overrule Serur’s first issue.


                                                 13
Objections to Summary-Judgment Evidence

                In Serur’s second issue, he objects to statements contained in eleven of Churchill

Forge’s summary-judgment exhibits as inadmissible hearsay. First, in relation to his retaliatory

discharge claims, we have affirmed the grant of summary judgment on no-evidence grounds, and we

have not considered the objected-to evidence. Second, in relation to Serur’s breach-of-contract

claim, we have only relied on the unchallenged evidence of the 401(k) plan and the Adoption

Agreement. Serur does not present any evidence to contradict their terms. We overrule Serur’s

second issue.


                                          CONCLUSION

                Because we overrule Serur’s issues on appeal, we affirm the order of the district court

granting summary judgment in favor of Churchill Forge on all claims.




                                               W. Kenneth Law, Chief Justice

Before Chief Justice Law, Justices Patterson and Puryear

Affirmed

Filed: June 24, 2004




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