Important new Court of Appeals Decision on Retaliatory Discharge and WC
BERNARDINO FRAUSTO, Appellant, v. RC INDUSTRIES, LLC., Appellee, No. 13-23-00194-CV (Tex. App. – Corpus Christi January 11, 2024).
Frausto worked for RCI, an oil field service company, at its oil fields south of Dilley, Texas. Frausto lived in Eagle Pass, Texas. RCI allowed for one of Frausto’s supervisors to pick him up at his home, take him to the work site, and then take him home at the end of the workday because Frausto did not have a vehicle.
On March 23, 2017 Frausto was injured while working for RCI, and his claim was accepted as compensable.
Shortly thereafter, RCI notified Frausto that he would be performing light duty work at RCI’s office in Dilley from 8:00 am to 5:00 pm each workday and should report for his light duty assignment on April 7, 2017. The field crew did not generally travel to the RCI offices either before or after work. Frausto was told that it was his responsibility to provide his own transportation. On April 6, 2017, by text message, Frausto told Hall he would be present at the office the following day at 8:00 am. Frausto did not appear for work on that date. However, he informed Hall that he would be absent. Frausto never worked at RCI again, but he informed Hall of his absences for many of the days that he did not appear at the office. Subsequently, Frausto failed to be present at the officer for light duty work and did not inform Hall of his absences.
On May 2, 2017, Frausto, Hall, and two other RCI employees, Christy Chandler and Desi De La Garza attended a meeting wherein the RCI employees explained that they thought Frausto resigned because he had not appeared for light duty work, and he had not contacted RCI since April 20, 2017. Frausto told them that he had quit because he did not have a ride to work. Frausto signed a separation from employment form stating that he did not report to work for almost one month and that RCI assumed that he quit.
On September 27, 2017, Frausto filed suit against RCI for wrongful termination claiming that RCI had retaliated against him because he filed a workers’ compensation claim pursuant to §451.001 of the Texas Labor Code, and asserted that RCI “discriminated against [him] by refusing to provide him a ride to work after it promised him a ride and gave him a ride every day before he was injured.” The trial court granted RCI’s amended motion for summary judgment, and Frausto appealed.
The Corpus Christi court first noted that “a plaintiff claiming a TWCA retaliation cause of action must make a prima facie showing that the person filed a workers’ compensation claim in good faith “and that there is a causal link between [the] . . . filing of the claim and [the] discharge or other act of discrimination by her employer”, citing Tex. Dep’t of Motor Vehicles v. Bustillos, 630 S.W.3d 316, 330 (Tex. App.-El Paso 2021, no pet.)
The plaintiff establishes a causal link by demonstrating that the termination would not have occurred when it did but for the plaintiff’s filing of the workers’ compensation claim. Id. Once this burden is met, the employer must “rebut the alleged discrimination by offering proof of a legitimate, non-discriminatory reason for its actions.” Id. at 331. “If the employer demonstrates a legitimate, non- discriminatory reason, then the burden shifts back to the employee to produce controverting evidence of a retaliatory motive in order to survive a motion for summary judgment.” Id. The plaintiff satisfies this burden by presenting evidence “that the employer’s asserted reason for the discharge or other adverse employment action was pretextual.” Id. “Summary judgment is proper if the employee fails to produce controverting evidence.” Id.
The court then first sought to determine whether RCI provided proof of a non-discriminatory reason to terminate Frausto. If so, then summary judgment was proper unless Frausto produced controverting evidence showing that the reason was pretextual.
They noted that “[i]t is well-settled in Texas that termination pursuant to the uniform enforcement of a reasonable absence-control policy does not constitute retaliatory discharge.” Citing Tex. Dep’t of Fam. & Protective Servs. v. Parra, 503 S.W.3d 646, 666 (Tex. App.-El Paso 2016, pet. denied).
An HR employee for RCI stated in her affidavit that it was “RCI’s regular course of action and policy” to terminate an employee for violation of the attendance police if that employee did not show up for work without notifying RCI of the absence unless there is a legitimate emergency excuse, or if the employee did “not notify RCI in advance of them not being able to come to work for a non-emergency absence from work.” RCI presented evidence that it is an at-will employer, and Frausto received RCI’s written policy stating that employees must inform RCI of their absence from work. Frausto did not notify RCI of his absences from April 20 until May 2, 2017, which were not due to an emergency. Thus, the court determined RCI showed that it uniformly enforced its absence-control policy.
Further, the court noted that Frausto did not provide any controverting evidence that RCI did not uniformly enforce the absence-control policy or that RCI’s acts were pretextual.
Consequently, the court held that RCI’s termination of Frausto’s employment did not constitute retaliatory discharge as a matter of law, and the trial court’s summary judgment in favor of RCI was affirmed.
FOLIO
