                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                  NO. 2-07-246-CV


CHRISTINE JACKSON                                                 APPELLANT

                                              V.

FEDEX GROUND PACKAGE                                                APPELLEE
SYSTEM, INC.

                                          ------------

            FROM THE 17TH DISTRICT COURT OF TARRANT COUNTY

                                          ------------

                          MEMORANDUM OPINION 1

                                          ------------

                                   I. INTRODUCTION

      The trial court granted summary judgment for Appellee FedEx Ground

Package System, Inc. on Appellant Christine Jackson’s claim that she was

discharged in retaliation for filing a worker’s compensation claim. The primary

issue we address in this appeal is whether Jackson met her burden to present




      1
          … See T EX. R. A PP. P. 47.4.
summary judgment evidence raising a genuine issue of material fact on whether

FedEx’s stated reason for her termination—that she violated the company’s

written policy requiring an employee who sustained an on-the-job injury to

obtain a drug and alcohol screening test at the time of his or her initial medical

treatment—was pretextual or discriminatory. Because, even viewing all of the

summary judgment in the light most favorable to Jackson and engaging in all

reasonable inferences in her favor, no such controverting summary judgment

evidence exists, we will affirm.

                   II. F ACTUAL AND P ROCEDURAL B ACKGROUND

      Jackson, who worked for FedEx, sustained a work-related injury on

Friday, September 16, 2005, when a five-gallon drum slid off the package slide

and injured her back.    Later that day, Jackson told her coordinator, Kevin

Bedliner, that she was hurt; he referred Jackson to their supervisor, Eric

Fergerson. According to Jackson, Fergerson told her she did not need to go to

the doctor. He told her to take some ice packs that he provided and to go

home and rest. Fergerson did not give Jackson an authorization for medical

treatment form.

      On Monday, September 19, 2005, Jackson went to FedEx and spoke

with Tyrol Lemon, an employee relation manager. Jackson told him that she

had injured her back the previous Friday and needed to seek medical treatment.

                                        2
Jackson told Lemon that she was going to K Clinic, and “[h]e didn’t say

anything.” Lemon gave Jackson an authorization for medical treatment and a

drug screening packet. Lemon also provided Jackson with a map and a list of

facilities that conducted drug screenings; some of the facilities listed were open

until 9:00 p.m. Jackson said that Lemon did not give her a time frame for

when she was to complete the drug screening test.

      That afternoon, on Monday, September 19, Jackson sought medical

treatment from K Clinic.       Jackson, however, did not complete the drug

screening test that day.

      The next day, Jackson went to a facility and completed the drug

screening test. She then went back to FedEx and gave Lemon the completed

drug screening paperwork. That afternoon, Lemon called Jackson at home and

asked why she had gone to K Clinic.          Jackson said that Lemon “sounded

upset.”

      After receiving Jackson’s paperwork, Lemon consulted with two safety

managers to verify that Jackson’s decision to wait a day to take the drug

screening test—that is, to not submit to a drug screening test at the time of her

initial medical treatment—did, in fact, violate FedEx’s drug screening policy. 2


      2
          … FedEx’s post-injury drug screening policy states:


                                         3
Both safety managers indicated that Jackson’s refusal to submit to a drug

screening test concurrently with her initial medical treatment was a violation of

FedEx’s written post-injury drug screening policy. Lemon met with FedEx’s

senior manager of the Fort Worth hub to discuss Jackson’s violation, and they

made the decision to terminate her.

      Jackson said that when Lemon terminated her, he told her that she was

being terminated for failing to take the drug test within twenty-four hours.

Because Jackson believed that she was terminated for seeking treatment from

K Clinic instead of the company doctor, she filed suit for wrongful discharge.

      FedEx answered.       More than a year later, FedEx filed a motion for

summary judgment. As one ground for summary judgment, FedEx argued that

it was entitled to judgment as a matter of law because it conclusively

established     a    legitimate,   nondiscriminatory   reason   for   Jackson’s



             Any employee who sustains an on-the-job injury that requires
      medical treatment will be required to have a post-injury drug and
      alcohol screening. This screening must be administered at the time
      of initial medical treatment, but should not preclude immediate
      medical attention when warranted.

              ....

            If an employee fails to cooperate, or refuses a post-injury
      drug and alcohol screening for any reason, or if the screening
      results are altered, substituted or tampered with in any way, the
      employee will be terminated. [Emphasis added.]

                                         4
termination—Jackson’s     violation   of FedEx’s   post-injury   drug   screening

policy—and because the burden then shifted back to Jackson to produce

summary judgment evidence of a retaliatory motive or that this reason was a

pretext for retaliation, a burden which Jackson could not and did not meet.

      Approximately one month later (seven days before the scheduled

summary judgment hearing and eleven days before the trial setting requested

by Jackson), Jackson filed a motion for continuance along with her response

to FedEx’s motion for summary judgment.        Jackson’s response to FedEx’s

summary judgment motion claimed that genuine issues of material fact existed

as to whether there was a causal connection between her workers’

compensation claim and her termination, as to whether FedEx had a retaliatory

motive for terminating her, and as to whether FedEx acted with malice in

terminating her.

      FedEx filed a reply to Jackson’s response, arguing that Jackson had failed

to controvert FedEx’s legitimate, nondiscriminatory reason for her termination.

FedEx also objected to Jackson’s summary judgment evidence.

      The trial court held a hearing on FedEx’s motion for summary judgment

and granted the motion. The trial court thereafter signed an order sustaining

FedEx’s objections to Jackson’s summary judgment evidence.          This appeal

followed.

                                        5
                           III. M OTION FOR C ONTINUANCE

      In her first issue, Jackson contends that the trial court abused its

discretion by denying her request for a continuance.           The basis for the

continuance sought by Jackson on March 29, 2007, was that she needed

additional time to contact ex-FedEx employees contained on a list provided to

her by FedEx on October 11, 2006.

      Generally, a party moving for a continuance of a summary judgment

hearing must obtain a ruling on its motion to preserve a complaint for appellate

review. See T EX. R. A PP. P. 33.1; Rangel v. State Bar of Tex., 898 S.W.2d 1,

3 (Tex. App.—San Antonio 1995, no writ). A party may preserve error even

in the absence of a ruling on a motion for continuance if the party objects to the

trial court’s refusal to rule.   See T EX . R. A PP. P. 33.1(a)(2)(B); Sw. Country

Enters., Inc. v. Lucky Lady Oil Co., 991 S.W.2d 490, 493 (Tex. App.—Fort

Worth 1999, pet. denied).

       Here, Jackson did not obtain a ruling on her motion for continuance and

also failed to request that the hearing on her motion for continuance be

recorded. Absent a record of the continuance hearing, there is no indication

that Jackson objected to the trial court’s failure to rule on her motion for

                                         6
continuance.     Consequently, Jackson waived any error concerning the trial

court’s failure to grant a continuance of the summary judgment hearing. See

Hornsby v. Alter’s Gem Jewelry, Ltd., No. 09-04-00542-CV, 2005 WL

3073790, at *3 (Tex. App.—Beaumont Nov. 17, 2005, pet. denied) (mem.

op.).   For all these reasons, we overrule Jackson’s first issue.

                   IV. J ACKSON’S S UMMARY J UDGMENT E VIDENCE

        In her second issue, Jackson claims that the trial court erred by sustaining

FedEx’s objections to her summary judgment evidence. In her appellate brief,

however, Jackson does not articulate how each of the trial court’s rulings on

FedEx’s objections to her summary judgment evidence are purportedly

erroneous. Instead, she simply globally claims that she “disagrees with all of

the bases alleged by FedEx for its objections” and “contends that the objections

to the deposition testimony of Jackson and her sister are particularly weak.”

Thus, Jackson has waived her complaint that the trial court erred by sustaining

FedEx’s objections to her summary judgment evidence. See, e.g., Cantu v.

Horany, 195 S.W.3d 867, 871 (Tex. App.—Dallas 2006, no pet.) (stating that

appellant waives challenge to evidentiary ruling unless he challenges all possible

grounds for trial court’s ruling sustaining objection).

        Nonetheless, for purposes of this appeal, we assume that the trial court

should have considered all of Jackson’s summary judgment evidence; even

                                          7
considering all of her evidence and viewing all of the evidence in the light most

favorable to Jackson, as explained below, no evidence exists creating a genuine

issue of material fact that FedEx’s enforcement of its written post-injury drug

screening policy was pretextual or retaliatory. Because Jackson has waived her

second issue complaining that the trial court erred by sustaining FedEx’s

objections to her summary judgment evidence and because we nonetheless

consider all of Jackson’s summary judgment evidence in our analysis, we

overrule her second issue.

                      V. S UMMARY J UDGMENT W AS P ROPER

      In her third issue, Jackson contends that the trial court erred by granting

FedEx’s motion for summary judgment.

      A.    Standard of Review

      A defendant who conclusively negates at least one essential element of

a cause of action is entitled to summary judgment on that claim. IHS Cedars

Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W .3d 794, 798 (Tex.

2004); see T EX. R. C IV. P. 166a(b), (c). When reviewing a summary judgment,

we take as true all evidence favorable to the nonmovant, and we indulge every

reasonable inference and resolve any doubts in the nonmovant’s favor. IHS

Cedars Treatment Ctr., 143 S.W.3d at 798.

      B.    Law Applicable to Retaliatory Discharge Claims

                                       8
      Section 451.001 of the Texas Labor Code prohibits an employer from

discharging an employee for filing a workers’ compensation claim in good faith.

T EX. L ABOR C ODE A NN. § 451.001 (Vernon 2006). The employee has the initial

burden of demonstrating a causal link between the discharge and the filing of

a workers’ compensation claim. Benners v. Blanks Color Imaging, Inc., 133

S.W.3d 364, 369 (Tex. App.—Dallas 2004, no pet.). The employee must show

that the employer’s action would not have occurred when it did had the

employee’s protected conduct—filing a workers’ compensation claim—not

occurred. Haggar Clothing Co. v. Hernandez, 164 S.W.3d 386, 388 (Tex.

2005); see Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.

1996).

      Once the employee establishes a causal link, the employer bears the

burden to rebut the alleged improper termination by showing that a legitimate

reason exists for termination. See Cont’l Coffee Prods. Co., 937 S.W.2d at

450–51. Thereafter, to survive a motion for summary judgment, the burden

shifts back to the employee to produce controverting evidence raising a fact

issue as to a retaliatory motive or nonuniform enforcement of a termination

policy. Id. at 444; McIntyre v. Lockheed Corp., 970 S.W.2d 695, 697 (Tex.

App.—Fort Worth 1998, no pet.).

      C.    Analysis

                                      9
      For purposes of our analysis, we will assume that Jackson met her initial

burden of demonstrating a causal link between the discharge and the filing of

a workers’ compensation claim. 3     See, e.g., Benners, 133 S.W.3d at 369.

Consequently, we next examine whether FedEx met its burden to rebut the

alleged improper termination by showing that a legitimate reason existed for

termination. See Cont’l Coffee Prods. Co., 937 S.W.2d at 450-51.

      FedEx’s summary judgment evidence establishes that it had a written

post-injury drug screening policy in effect, that the policy required an employee

who sustained an on-the-job injury that required medical treatment to obtain a

drug screening test at the time of the employee’s initial medical treatment, and

that the refusal to comply with the policy would result in termination. FedEx’s

summary judgment evidence showed that Jackson was made aware of this

policy in June 2005 and signed a safety meeting sheet indicating her awareness

of the policy. FedEx also produced summary judgment evidence establishing

that its policies, including its post-injury drug screening policy, were posted on

a website created specifically for package handlers like Jackson and that




      3
      … Consequently, we do not discuss Jackson’s causal links summary
judgment evidence except to the extent that it overlaps with our subsequent
discussion below concerning whether Jackson met her burden to produce
controverting evidence raising a fact issue as to a retaliatory motive or
nonuniform enforcement of FedEx’s post-injury drug screening policy.

                                       10
computers were provided at FedEx’s Fort Worth facility so that package

handlers like Jackson could freely access the policies. The summary judgment

evidence conclusively establishes, and indeed Jackson agrees, that she did not

submit to a post-injury drug screening test at the time she received her initial

medical treatment for her injury.

      An employer who terminates an employee for violating a written company

policy or rule cannot be liable for retaliatory discharge as long as the rule is

uniformly enforced.    See, e.g., Haggar Clothing Co., 164 S.W.3d at 388

(dealing with enforcement of one-year leave-of-absence policy); Cont’l Coffee

Prods. Co., 937 S.W.2d at 444 (dealing with enforcement of three-day rule

governing employee absences); Santillan v. Wal-Mart, 203 S.W.3d 502, 506

(Tex. App.—El Paso 2006, pet. denied) (dealing with enforcement of

requirement that employment authorization documents be timely renewed).

Thus, in light of FedEx’s summary judgment evidence conclusively establishing

that Jackson’s termination decision was based on her failure to comply with its

written post-injury drug screening policy, the burden shifted back to Jackson

to produce controverting evidence raising a fact issue as to a retaliatory motive

or nonuniform enforcement of FedEx’s post-injury drug screening policy. See

Haggar Clothing Co., 164 S.W.3d at 388; Cont’l Coffee Prods. Co., 937

S.W.2d at 444, 450–51; Santillan, 203 S.W.3d at 506.

                                       11
      In an effort to discharge this burden, Jackson first points out that when

FedEx terminated her, it knew she was pursing a workers’ compensation claim.

The fact that a manager has some knowledge that an employee has filed a

workers’ compensation claim does not, by itself, raise a genuine issue of

material fact. See Santillan, 203 S.W.3d at 507.

      Jackson next claims that she produced summary judgment evidence that

FedEx’s stated reason for discharge was false and that FedEx had exhibited a

pattern of discrimination toward employees who filed workers’ compensation

claims. Jackson points to multiple employee lists attached to her summary

judgment response. The problem with these employee lists, however, is that

they do not reflect the specific reason for each termination.4 No affidavit exists

in the summary judgment record explaining these lists, how they were

generated, or how they purportedly show a pattern of nonuniform enforcement

of FedEx’s post-injury drug screening policy. To the contrary, FedEx proffered

summary judgment evidence that only two people—one of whom was

Jackson—had failed to comply with the drug policy and that both had been

terminated. Thus, Jackson’s summary judgment evidence does not raise a




      4
       … For instance, the code given for Jackson’s termination was “Violation
of Rules.” The employee list contains this same code for approximately ten
employees.

                                       12
genuine issue of material fact on whether FedEx did not uniformly enforce its

post-injury drug screening policy.

      Jackson also argues that FedEx’s stated reason for her termination was

false because Lemon told her that she was being terminated for failing to take

the drug test within twenty-four hours even though FedEx’s drug policy requires

a post-injury drug screening test be conducted at the time of initial medical

treatment, not within twenty-four hours. Jackson claims she did take the drug

test within twenty-four hours of being told to do so; consequently, FedEx’s

reason for termination is false.

      The fact that Jackson took the drug test within twenty-four hours of

when she was told to take it does not make FedEx’s stated reason for her

discharge false. Jackson admitted that she did not complete the drug screening

until the day after she went to K Clinic for her initial medical treatment.

Jackson’s admission shows that she failed to comply with FedEx’s policy on

post-injury drug screening, a policy that she was deemed to have knowledge

of by virtue of her attendance at the safety meeting that covered the drug

policy. Thus, Jackson has failed to meet her summary judgment burden to raise

a genuine issue of material fact as to whether FedEx’s stated reason for her

discharge was false. See id. at 507–08 (holding that employer’s reason for

termination was not false when it initially told employee that she was being

                                      13
terminated for failing to provide necessary employment documents in a timely

manner and later reported on employee’s unemployment benefits claim that

employee had been terminated for “misconduct”; employee failed to show that

her “misconduct” was anything other than her failure to file the necessary

employment documents).

      We hold that Jackson failed to produce controverting evidence raising a

fact issue as to FedEx’s retaliatory motive or nonuniform enforcement its post-

injury drug screening policy. See Haggar Clothing Co., 164 S.W.3d at 388;

Cont’l Coffee Prods. Co., 937 S.W.2d at 444, 450–51; Santillan, 203 S.W.3d

at 506; see also Jordan v. BAE Automated Sys., No. 05-96-01488-CV, 1998

WL 242413, at *2 (Tex. App.—Dallas May 15, 1998, no pet.) (not designated

for publication) (upholding summary judgment because appellant admitted in

deposition that he was discharged for taking a pain pill without a prescription

in violation of company’s drug policy). Accordingly, we overrule Jackson’s

third issue.

                               VI. C ONCLUSION

      Having overruled Jackson’s three issues, we affirm the trial court’s grant

of summary judgment in favor of FedEx.




                                                 SUE WALKER
                                                 JUSTICE

                                      14
PANEL A:   CAYCE, C.J.; HOLMAN and WALKER, JJ.

DELIVERED: April 24, 2008




                                15
