                                 NO. 12-14-00155-CV

                         IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                      TYLER, TEXAS

BRENDA BREWER, DEANNA                          §      APPEAL FROM THE 3RD
MEADOR, PENNY ADAMS,
AND SABRA CURRY,
APPELLANTS
                                               §      JUDICIAL DISTRICT COURT
V.

LOWE’S HOME CENTERS, INC.,
APPELLEE                                       §      ANDERSON COUNTY, TEXAS

                                 MEMORANDUM OPINION
       Brenda Brewer, Deanna Meador, Penny Adams, and Sabra Curry (collectively
Claimants) appeal the granting of a directed verdict against them. They present two issues on
appeal alleging they presented sufficient evidence of causation and the employer’s stated reason
for discharge was false. We affirm.


                                        BACKGROUND
       Brewer, Meador, Adams, and Curry were each employees at the Lowe’s Home Centers,
Inc.’s Palestine, Texas store. Each claimant suffered an on-the-job injury while working for
Lowe’s and made a corresponding worker’s compensation claim. Following their injuries, each
claimant took an extended personal leave of absence. Each claimant was terminated pursuant to
Lowe’s personal leave policy when her leave extended beyond the number of days permitted by
the policy.
       Claimants sued, alleging Lowe’s retaliated or discriminated against them for having filed
worker’s compensation claims. Lowe’s responded that each claimant was terminated pursuant to
the uniform application of the personal leave policy. Following the presentation of Claimants’
evidence, the trial court granted Lowe’s motion for directed verdict. The trial court found that
Claimants presented no evidence of causation and no evidence to rebut Lowe’s contention that it
had a legitimate reason for discharge. This appeal followed.


                                     RETALIATORY DISCHARGE
        In both of their issues, Claimants allege the trial court erred when it granted Lowe’s
motion for directed verdict. In their first issue, they assert the evidence raises a fact issue
regarding causation. In their second issue, they argue that Lowe’s personal leave of absence
policy was a false pretext for their terminations.
Standard of Review
        A court reviewing the granting of a directed verdict must determine whether there is more
than a scintilla of evidence to raise a fact issue on the challenged elements. Coastal Transp. Co.
v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 233-34 (Tex. 2004). The court must consider
all of the evidence in a light most favorable to the party against whom the verdict was directed
and disregard all contrary evidence and inferences. Id. at 233. If the evidence supporting a
finding rises to a level that would enable reasonable, fair-minded persons to differ in their
conclusions, it constitutes more than a scintilla of evidence. Id. at 234. However, where no
evidence of probative force on an ultimate fact element exists or where the probative force of
evidence is so weak that only a mere surmise or suspicion is raised as to the existence of
essential facts, the trial court has the duty to direct the verdict. Id.
Governing Law
        A directed verdict is proper when (1) a defect in the opponent’s pleadings makes them
insufficient to support a judgment; (2) the evidence conclusively proves a fact that establishes a
party’s right to judgment as a matter of law; or (3) the evidence offered on a cause of action is
insufficient to raise an issue of fact. TEX. R. CIV. P. 268. Generally, a directed verdict in favor
of a defendant may be proper in two situations: (1) when a plaintiff does not present evidence
“raising a fact issue essential to the plaintiff’s right of recovery”; and (2) when a plaintiff “admits
or the evidence conclusively establishes a defense to the plaintiff’s cause of action.” Prudential
Ins. Co. v. Fin. Review Servs., 29 S.W.3d 74, 77 (Tex. 2000).
        The labor code provides that a person may not discharge or discriminate against an
employee because the employee has (1) filed a worker’s compensation claim in good faith; (2)
hired a lawyer to represent the employee in a claim; or (3) instituted or caused to be instituted in



                                                     2
good faith a worker’s compensation proceeding. TEX. LAB. CODE ANN. § 451.001(1)-(3) (West
2006). To prove a retaliatory discharge claim, the employee must show that the employer’s
action would not have occurred when it did but for the filing of the worker’s compensation
claim. Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996). However,
uniform enforcement of a reasonable absence control policy does not constitute retaliatory
discharge. See Tex. Div.-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 313 (Tex. 1994) (per
curiam). An employer who terminates an employee for violating such a policy cannot be liable
for retaliatory discharge as long as the policy is uniformly enforced. Cont’l Coffee, 937 S.W.2d
at 451. If an employer’s termination is required by the uniform enforcement of a reasonable
absentee policy, it cannot be the case that termination would not have occurred when it did but
for the employee’s assertion of a compensation claim or other conduct protected by section
451.001. Id.
        To establish that a reasonable absence control policy was not uniformly enforced, a
terminated employee must provide competent evidence that she was similarly situated to other
employees who received preferential treatment under the policy. Larsen v. Santa Fe Indep.
Sch. Dist., 296 S.W.3d 118, 131 (Tex. App.—Houston [14th Dist.] 2009, pet. denied).
Circumstantial evidence of causation is immaterial if the claimants’ terminations were required
by the uniform enforcement of the personal leave policy. Haggar Clothing Co. v. Hernandez,
164 S.W.3d 386, 388 (Tex. 2005).
Analysis
        Claimants alleged that after their respective injuries, the store’s management forced each
of them to perform work that violated their doctors’ light-duty restrictions. This, they contended,
was an attempt to force them to quit or take additional medical leave. When they went on leave,
Claimants asserted, Lowe’s improperly classified the leave as personal leave to trigger their
termination under the personal leave policy.
        According to Lowe’s personal leave policy, “Employees who cannot return to work
within 240 days of any leave, or combination of leaves, will be terminated, except where
prohibited by law.”1 The evidence shows that Lowe’s home office in North Carolina determines
whether or when an employee has exceeded the allowable time for leave, and a computer at the

        1
         Pursuant to the personal leave policy in effect at the time Brewer, Curry, and Adams were terminated, the
maximum amount of leave permitted was 240 days. Prior to Meador’s termination, the policy was revised to extend
the maximum amount of leave to 365 days.


                                                        3
home office automatically generates any termination letter arising as a result of the absence
control policy. Lowe’s store’s management is not involved in the decision to terminate an
employee for exceeding the allowable leave. Each of the claimants received one of these
computer-generated letters terminating her employment.
       Claimants failed to provide any evidence of the personal leave policy’s being applied
differently to a similarly situated employee. See Larsen, 296 S.W.3d at 131. Therefore, they
failed to show that Lowe’s personal leave policy was not uniformly enforced. Claimants argued,
however, that the policy was not followed and implicitly assert that noncompliance is sufficient
to show retaliatory discharge. But even if we assume that Claimants’ implicit argument is a
correct statement of the law, we cannot conclude that they have shown Lowe’s failed to follow
the policy.
       Claimants contended the personal leave policy required that their personnel files contain
forms or computer screen shots showing an election for personal leave, as well as leave of
absence checklists and warning letters when they were nearing the limit of allowable leave.
However, Claimants brought forth no evidence that these items were required to be placed in
their personnel files. In fact, the only evidence relevant to this issue is that the forms were
recommended and not required. Claimants also contend they were each misclassified as being
on personal leave when they should have been on limitless worker’s compensation leave. But
there is no evidence supporting this assertion. Each claimant admitted that she was not paid
worker’s compensation benefits while she was on leave. In addition, none of the claimants
disputes the date she went on leave, that she could not return to work, or that she exceeded the
number of days allowed under the personal leave policy.
       In sum, Claimants failed to show that Lowe’s personal leave policy was not uniformly
enforced. See Larsen, 296 S.W.3d at 131. Consequently, they have not shown that the policy
was a false pretext for their terminations. See Cont’l Coffee, 937 S.W.2d at 451. Therefore, we
hold that the trial court did not err in granting Lowe’s motion for directed verdict. Claimants’
second issue is overruled. Because we have overruled Claimants’ second issue, we need not
address their first issue regarding causation. See Hernandez, 164 S.W.3d at 388.


                                         DISPOSITION
       Having overruled Claimants’ second issue, we affirm the trial court’s judgment.



                                               4
                                                               GREG NEELEY
                                                                  Justice

Opinion delivered October 14, 2015.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                                   (PUBLISH)



                                                          5
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                          OCTOBER 14, 2015


                                         NO. 12-14-00155-CV


   BRENDA BREWER, DEANNA MEADOR, PENNY ADAMS AND SABRA CURRY,
                             Appellants
                                V.
                    LOWE’S HOME CENTERS, INC.,
                             Appellee


                                  Appeal from the 3rd District Court
                          of Anderson County, Texas (Tr.Ct.No. 3-41083)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that all costs of this appeal are hereby adjudged
against the Appellants, BRENDA BREWER, DEANNA MEADOR, PENNY ADAMS AND
SABRA CURRY, for which execution may issue, and that this decision be certified to the court
below for observance.
                    Greg Neeley, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
