Daniel Nourse v. Continental Airlines, Inc.--Appeal from 269th District Court of Harris County

No. 04-98-00112-CV
Daniel NOURSE,
Appellant
v.
CONTINENTAL AIRLINES, INC.,
Appellee
From the 269th Judicial District Court, Harris County, Texas
Trial Court No. 95-11327
Honorable John T. Wooldridge, Judge Presiding

Opinion by: Alma L. L pez, Justice

Sitting: Alma L. L pez, Justice

Catherine Stone, Justice

Sarah B. Duncan, Justice

Delivered and Filed: October 14, 1998

AFFIRMED

The question before the Court in this workers' compensation retaliation case is whether the Appellee, Continental Airlines, Inc., violated Texas Labor Code 451.001 by adjusting Appellant's, Daniel Nourse, seniority bid date in accordance with the company's leave of absence policy. Nourse must demonstrate a requisite causal link between his discharge and any of the activities protected under 451.001. Continental Airlines may obtain summary judgment if it sets forth a legitimate, nondiscriminatory reason for its actions and Nourse fails to produce evidence of a retaliatory motive. See Texas Division-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 313 (Tex. 1994). Because Continental demonstrated that the company's leave of absence policy affected all workers, including those who were not engaged in protected activities under 451.001, we affirm.

FACTUAL BACKGROUND

In this workers' compensation retaliation case, Appellant, Daniel Nourse, alleges that Appellee, Continental Airlines, improperly adjusted his bid seniority date in retaliation for his having filed a claim for workers' compensation benefits. Nourse suffered an on the job injury on August 20, 1991, when he was lifting an aircraft bin door. Nourse was off work August 21-23 due to his injury, but he then received a full release to return to work with no restrictions on his ability to perform his job. On August 23, 1991, Nourse was informed that he had been awarded a one-year company-offered leave of absence (COLA) for which he had applied. A COLA is a special unpaid leave of absence program that is offered to active employees by Continental during periods where a reduction in force may be required due to overstaffing or a decline in business needs. Employees are selected for a COLA based upon seniority. The terms of the COLA allow continuing flight benefits, company seniority continues to accrue for all purposes, and an employee may seek full-time employment elsewhere while on leave. COLAs are not available to employees who are on another type of leave.

Nourse began his one-year COLA on September 8, 1991. Shortly after Nourse began his COLA, he was contacted by Scott Wetzel & Associates, the workers' compensation carrier for Continental Airlines. The carrier representative requested that Nourse visit a doctor of his choice to obtain verification of Nourse's full release to duty following his workers' compensation injury. The examining physician prescribed treatment for Nourse and did not give him a release to duty. Nourse began receiving weekly workers' compensation benefits, which continued for 79 weeks. Throughout his approved COLA Nourse maintained limited conversations with his supervisor, informing him of the insurance carrier representative's inquiries about his workers' compensation claim. Nourse, however, failed to mention that he was being paid workers' compensation benefits during his unpaid COLA. Nourse contacted Continental Airlines on September 1, 1992 to discuss his return to work. Nourse was asked to present a full-release doctor's certificate when it was learned that he had received workers' compensation benefits during his entire leave. The full release was not provided until February 1993. However, Nourse contends that his supervisor assured him that during the period of time he was attempting to secure a doctor's return to work release, his absence would be treated as an extension of COLA.

After learning of Nourse receiving workers' compensation monetary benefits throughout his one year COLA, Donna Towle, Senior Human Resources Manager, Joe Stephens, Senior Director of Airport Operations, and Don Thiele, Administrative Supervisor of Terminal Operations, decided that Nourse's COLA should be reclassified as a medical leave for seniority bid date calculation purposes. Nourse's seniority was adjusted per company policy which requires that, when an individual is on leave for occupational injury or illness, the period of absence beyond the first ninety days will not be counted for seniority purposes. Continental Airlines's leave policy applies equally to all employees who cannot perform their regular duties for an extended period of time. The trial court granted summary judgment for Continental Airlines on September 29, 1997.

STANDARD OF REVIEW

The party presenting the motion for summary judgment has the burden of showing that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. See TEX. R. Civ. P. 166a(c); Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex. 1972). In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). Every reasonable inference must be indulged in favor of the nonmovant and any doubts must be resolved in favor of the nonmovant. See id. at 549; Montgomery v. Kennedy, 669 S.W.2d 309, 311 (Tex. 1984).

DISCUSSION

Nourse's first issue is whether the adjustment of his seniority date occurred because of his protected activity. Texas Labor Code 451.001 provides: No person may discharge or in any manner discriminate against any employee because the employee has in good faith [1] filed a claim, [2] hired a lawyer to represent him in a claim, [3] instituted, or caused to be instituted, in good faith, any proceeding under the Texas [Workers'] Compensation Act, or [4] has testified or is about to testify in any such proceeding. See TEX. LABOR CODE ANN. 451.001 (Vernon 1994). Nourse has not demonstrated the required causal link between the protected activity and the retaliation. Nourse contends that Continental adjusted his bid seniority date because of his filing and receiving workers' compensation benefits. Nourse maintains that his seniority was adjusted downward because of his protected activity. Nourse did not submit any documentation or evidence to substantiate his assertion that he had informed his supervisor of his workers' compensation status, thereby verifying his claim that Continental Airlines was aware of his change in status from the beginning of Nourse's COLA. Continental Airlines responds that it maintains an established system of seniority adjustment for all medical leaves of absence, whether or not the medical leaves of absence are work related. Continental Airlines demonstrated this with their submission of Section 9 (Seniority) and Section 13 (Leave of Absence) respectively from their company manual. This was further evidenced by the submission of an affidavit of Donna Towle, Director of Human Resources for Continental Airlines, which reiterates Continental's neutral leave policy regarding seniority adjustment for medical leave, regardless of whether the leave is related to an occupational injury or not. Enforcement of a leave policy that treats medical leave in the same manner regardless of whether the underlying condition is work-related does not violate the Texas Labor Code. See Terry v. Southern Floral Co., 927 S.W.2d 254, 257 (Tex. App.-Houston [1st Dist.] 1996); Texas Division-Tranter, Inc. v. Carrozza, 876 S.W.2d at 313.

Nourse's second issue is whether Continental Airlines's policies preclude an employee from receiving COLA benefits and workers' compensation benefits at the same time. Continental's policies do preclude receiving COLA benefits and workers' compensation benefits simultaneously. The Continental company policy does not treat employees who have been injured at work any less favorably than it treats employees who have been injured away from work. The Appellee's company offered leave of absence (COLA) is not available to employees who are on another type of leave. Employees who have no medical condition, such as those seeking educational and personal leaves, are treated the same in bid seniority adjustment following a leave of absence. Appellee, Continental Airlines, need not grant an employee injured at work a leave of absence until the employee is able to return to work. See Harris v. American Red Cross, 752 F. Supp. 737, 739-740 (W.D. Tex. 1990); Palmer v. Miller Brewing Co., 852 S.W.2d 57, 61 (Tex. App. - Fort Worth 1993, writ denied).

CONCLUSION

Appellant's points of error are overruled. The summary judgment is affirmed.

Alma L. L pez, Justice

DO NOT PUBLISH

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