Tommy Jenkins v. Guardian Industries, Corp. and Charles Hicks--Appeal from 13th District Court of Navarro County

IN THE

TENTH COURT OF APPEALS

No. 10-99-028-CV

TOMMY JENKINS,

Appellant

v.

GUARDIAN INDUSTRIES, CORP.

AND CHARLES HICKS,

Appellees

From the 13th District Court

Navarro County, Texas

Trial Court # 95-00-06058-CV

CONCURRING AND DISSENTING OPINION

The summary judgment evidence establishes certain facts as undisputed. Jenkins worked for Guardian. He was hurt on the job. He was allowed to work on light duty in the warehouse until his first surgery. Under Guardian s Health Plan Benefits, Jenkins s employment was deemed terminated when he ceased active work in March 1993. However, his benefits continued under that plan because of his injury. He remained off work and filed for long term disability, which was approved. When he was notified that his long term disability had been approved he was also notified that because he was not totally disabled, those benefits were about to terminate and as a result, his health plan coverage would also terminate. After receiving this notice he returned to his doctor and wanted to be given a release to return to work, full duties. He obtained the release. Twelve days later he presented himself at Guardian and wanted to return to work. Guardian reviewed the situation and offered him the only job vacancy subject to his satisfactory completion of a return to work physical. He failed the physical. Having no position vacant that he could perform at that time, Guardian notified Jenkins that they could not return him to work with his current physical restrictions and that he should seek other employment.

Jenkins sued Guardian claiming: (1) that he was discriminated against because of his disability; and (2) that he was terminated in retaliation for having filed a workers compensation claim. Guardian s response is that he cannot perform the essential functions of the only job available at the time the decision had to be made. //

Guardian moved for summary judgment. The trial court granted it. We must decide if the summary judgment proof entitled Guardian to judgment as a matter of law. The majority holds that Jenkins s controverting evidence raised fact questions that entitled him to a trial on the merits. Because I believe that Guardian s summary judgment evidence entitled it to judgment as a matter of law, I respectfully dissent.

DISCRIMINATION BECAUSE OF A DISABILITY?

Jenkins has successfully confused the issues on the disability claim by questioning whether he can reasonably perform a job if Guardian will fulfill its obligation to make reasonable accommodation. The types of reasonable accommodation which he suggests include: 1) assigning him to light duty work; 2) assigning him to a position occupied by a temporary worker; or 3) allowing him to take vacation time or unpaid leave until a job that he could perform became available. Jenkins v. Guardian Industries, Corp., et al, No. 10-99-028-CV, slip op. at 14 (Tex. App. Waco March 22, 2000).

Assigning to Light Duty Work

The summary judgment evidence establishes that at times Guardian has temporarily accommodated employees by letting them work light duty. The summary judgment evidence also establishes that Guardian accommodated Jenkins in a similar manner from the time he was injured until the time of his surgery. What the summary judgment evidence also established is that Guardian has not made a permanent light duty position for any employee. The accommodation that Jenkins demands of Guardian is to create a permanent light duty position by altering its system of internal duty rotations, which Guardian has implemented for the safety of its workers. Additionally, the only light duty work in the rotation is in the warehouse and there was no vacant warehouse position at the time Jenkins wanted to be returned to work. Guardian is not required to create a job for Jenkins that he can perform. Foreman v. Babcock & Wilcox Co., 117 F.3d 800, 809 (5th Cir.), cert. denied, 118 S. Ct. 1050 (1998) ( An employer is not required to create light duty jobs to accommodate. ); Turco v. Hoescht Celanese Chemical Group, Inc., 101 F.3d 1090, 1094 (5th Cir. 1996); Champ v. Baltimore County, 884 F. Supp. 991 (Md. 1995), aff d, 91 F.3d 129 (4th Cir. 1996) (no permanent light duty position required).

Replace a Temporary Worker

Jenkins contends that Guardian should fire a temporary worker in the warehouse to create a vacancy that he could then be given. First, Guardian does not have to face the dilemma of firing one worker, temporary or not, to create a position for Jenkins. Foreman, 117 F.3d at 809-810 ( For the accommodation of a reassignment to be reasonable, it is clear that a position must first exist and be vacant. ); White v. York Intern. Corp., 45 F.3d 357, 362 (10th Cir. 1995) ( However, the ADA does not require an employer to promote a disabled employee as an accommodation, nor must an employer reassign the employee to an occupied position, nor must the employer create a new position to accommodate the disabled worker. ). To hold otherwise elevates Jenkins above his employee-at-will status to being entitled to displace another worker. Second, even if one of the temporary workers were fired to allow Jenkins an opening, it is undisputed that without permanently altering the job rotation and making the job a permanent light duty position, as discussed above, Jenkins s disability would prevent him from being able to fulfill the essential functions of the position.

Vacation Time or Unpaid Leave

When Jenkins arrived at Guardian to return to work he presented Guardian with no alternative other than putting him to work. He did not request that he be allowed to take his vacation time to await a possible opening before he was terminated. He did not request to be put on unpaid administrative leave to await a possible opening. He wanted to return to work immediately but was unable to perform the essential functions of the only job that was available at that time. Jenkins s attempt to raise the accommodation only after he has filed suit, when it clearly was not an alternative at the time, should be summarily rejected.

In summary, as a matter of law, the accommodations suggested by Jenkins were not reasonable. The only summary judgment evidence was that there was no accommodation that could be made to allow Jenkins to be able to perform the only job available at the time the decision had to be made.

RETALIATION?

Jenkins relies on these reasons for both the discrimination claim and the retaliation claim. He also submits some additional circumstantial evidence in support of his retaliation claim. None of the evidence contradicts the fact that there is no job at Guardian for which Jenkins could perform the essential functions unless Guardian terminated a temporary worker and created a permanent light duty position in the warehouse specifically for him.

The principle case both parties and the majority rely upon is Continental Coffee. Continental Coffee Products Co. v. Cazarez, 937 S.W.2d 444 (Tex. 1996). Cazarez presented a list of circumstantial evidence to prove the causal connection between the alleged retaliation and her termination. Jenkins and the majority list much of the same type circumstantial evidence to also establish the causal connection. Guardian has not contested Jenkins s ability to produce some evidence of causal connection. However, Jenkins and the majority also attempt to use the same evidence to establish that the stated reason for discharge is false. This is not proper.

In Continental, the stated reason for firing Cazarez was for violation of the three-day rule (a rule which requires an employee to contact the employer to explain extended absences every three days). The court stated:

If an employee s termination is required by the uniform enforcement of a reasonable absentee policy, then 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. Thus, if Continental enforced the rule uniformly, and if Cazarez violated it, then Cazarez could not have been terminated in violation of the Anti-Retaliation Law.

Id. at 451.

According to Continental, Cazarez was terminated because she failed to call in to account for her absence on November 6, 7, and 8 and that she was thus properly fired on the 8th. However, Cazarez introduced evidence to establish that the stated reason for termination was false. She introduced evidence to establish she was fired on the 7th, before the 3 day rule was violated. The court stated; Crediting Cazarez s testimony, as we must, there is some evidence that she did not violate the three-day rule. Id. at 451. // This was the evidence Cazarez introduced to raise a fact question on whether the stated reason for termination was false. Evidence which does nothing more than show an improper motive does not raise a fact issue on whether the stated reason for discharge is false. It must be evidence which specifically raises a fact question on whether the reason for termination established by the summary judgment evidence is false. Id., see Texas Division-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 313-14 (Tex. 1994).

Jenkins s proffered evidence does not raise a fact issue on the essential element of his claim which Guardian refuted as a matter of law. There was no job available on the date of the employment decision that Jenkins could perform, and the only accommodations that Jenkins suggested were not reasonable accommodations because they would amount to firing an employee or worker and creating a permanent light duty position that did not currently exist. To avoid a pointless trial, the trial court granted Guardian the summary judgment to which it was entitled. I would affirm the summary judgment as to Guardian.

I concur in the summary judgment as to Charles Hicks for the reasons expressed by the majority.

TOM GRAY

Justice

Concurring and dissenting opinion delivered and filed March 22, 2000

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