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El Paso Court of Appeals Upholds Workers Comp Retaliation Verdict Despite the Employer's Reliance on a Cause-Neutral Absence Control Policy

Chapter 451 of the Texas Labor Code prohibits an employer from retaliating or discriminating against an employee who files a workers compensation claim. The key issue in many cases under Chapter 451 is whether the employee can prove that the retaliation was due to the workers compensation claim. Employers will often claim that they took various actions for reasons unrelated to the claim.

This was the issue in Kingsaire, Inc. v. Melendez, No. 08-11-00372-CV (Tex. App. -- El Paso 2013). Melendez was injured on the job and was unable to work for an extended period of time. Melendez elected to take workers compensation leave, which is unlimited in duration. However, the employer placed him on FMLA leave, which is limited to twelve weeks. At the end of twelve weeks, the employer terminated Melendez. Melendez sued under Chapter 451 and won a jury verdict. The employer appealed.

The first issue before the El Paso Court of Appeals was whether the employer terminated Melendez pursuant to a cause-neutral absence policy. The court explained that a cause-neutral absence control policy can give rise to a presumption that the termination was not due to the workers compensation claim:

Where an employee who has filed a worker's compensation claim is terminated in strict compliance with a uniformly enforced, cause-neutral absence control policy, the employer is entitled to a presumption that the proximate cause of termination was the policy and not the worker's compensation claim. Non-conclusory proof that the absence control policy does not require discharge or is not uniformly enforced creates a fact issue preventing a court from granting the presumption to the employer. Where an employee's termination is presumed to be the result of an attendance policy, the employee may overcome that presumption and raise a fact issue by providing "some evidence" of retaliatory intent. (Citations omitted).

The employer pointed to a provision in its policies requiring the termination of an employee who failed to return to work after FMLA leave expired. The employer argued that this was a cause-neutral absence control policy that created a presumption that Melendez was not terminated due to the workers compensation claim.

However, Melendez pointed to language in the policies that he contended created a 15-day grace period for the employee to present certification showing that he was able to return to work:

If the employee takes leave on account of a serious medical condition, the employee will be required to present a medical certification of fitness to work before being permitted to return. If an employee fails to provide the medical certification within fifteen days after the conclusion of leave, the employee will be terminated.

Melendez was fired before the 15-day period had expired. The court found that this was sufficient to raise a fact issue with respect to whether the policy was uniformly applied, thus negating the presumption in favor of the employer:

The policy language is not clear and unambiguous. Rather, the questions of whether Appellant's discharge was required, whether the policy created a 15-day grace period, and whether Kings Aire complied with the terms of the policy fall within the "zone of reasonable disagreement," and thus, the province of the jury. Kings Aire argues in the alternative that the fact that Melendez was terminated prior to 15-day medical certification "grace period" after FMLA leave expired is irrelevant, since Melendez would not have been medically fit to return to work at that time anyway. However, termination prior to the 15-day medical certification period may be viewed as proof that Kings Aire did not "uniformly apply" its absence control policy. Here, Melendez provided a plausible construction of the policy language and elicited evidence that he was fired during the 15-day grace period when policy language did not require his termination. As such, the jury was free to draw the inference that Kings Aire was not acting in accordance with the terms of its cause-neutral absence control policy and not entitled to the presumption of legitimacy. (Citations omitted).

The employer also argued that Melendez had failed to prove retaliatory intent. The court summarized the factors that are used to assess retaliatory intent:

Where direct evidence of motive is unavailable, circumstantial factors that the courts may consider in assessing causal linkage and retaliatory intent include temporal proximity of the termination to the date of the injury or claim, employer incentives to refrain from reporting injuries, and the five so-called Continental Coffee factors: (1) knowledge of the worker's compensation claim filing by employer decision-makers; (2) expression of negative attitude toward employee's injuries; (3) failing to adhere to company policies; (4) disparate treatment as between similarly situated employees; or (5) other evidence that the stated reason for discharge was false. No one factor is determinative, and although Melendez is not required to produce "evidence on all five of the Continental Coffee factors" to meet his burden, he must produce "sufficient circumstantial evidence on a majority of these factors." (Citations omitted).

The court concluded that Melendez had met his burden:

We believe that: (1) Villa's knowledge of Melendez's worker's compensation claim; (2) the fact that Kings Aire's policy encourages employees to take time-limited vacation time over indefinite worker's compensation time; (3) the fact that Melendez was apparently placed on FMLA leave in spite of requesting separate worker's compensation time; (4) the fact that Melendez was demoted during leave time; and (5) the fact that the leave policy's language appears to create a 15-day medical certification grace period after FMLA leave lapses are all sufficient to give rise to a permissible inference of retaliation.

The court thus affirmed the judgment in favor of Melendez.

David C. Holmes is a Houston employment lawyer with The Law Offices of David C. Holmes