Court of Appeals of Texas, Fourth District, San Antonio
From the County Court at Law, Starr County, Texas Trial Court No. CC-08-135 Honorable Romero Molina, Judge Presiding
Sitting: Karen Angelini, Justice Marialyn Barnard, Justice Rebeca C. Martinez, Justice
Rebeca C. Martinez, Justice
Jose Luis Pena appeals from a summary judgment granted in favor of his former employer, Starr County, on Pena's claims for retaliatory discharge, discrimination, and violation of the Family Medical Leave Act. We affirm in part, and reverse and remand in part.
Pena was hired as an animal control officer by Starr County on September 20, 2000. On September 12, 2005, Pena was unloading a mosquito sprayer at work when he injured his back. Treatment of the back sprain required injections and physical therapy. Pena filed a workers' compensation claim. Pena returned to work on January 30, 2006. Pena's physician restricted him to "light duty" work upon his return. The County Attorney, Victor Canales, told Pena that there were no light duty positions available in Starr County, but that they would make an exception for him because grant money had been awarded to fund Pena's position. Canales told Pena to go ahead and "try his best." Canales wanted Pena to sign a document stating that if Pena were to reinjure himself, the County would not be liable. After "much controversy with the employer regarding a light duty program, " Pena was released to work with a modified "medium duty" program (25-30 pound lifting restriction).
The County requested that Pena undergo an Independent Medical Evaluation-Impairment Rating examination. Dr. Gumaro Garza conducted the exam on March 26, 2006. Pena described his back pain as a "mild discomfort" and felt his condition had improved since the date of injury. Dr. Garza reviewed Pena's medical records and physically examined Pena. Dr. Garza diagnosed Pena with "lumbar syndrome with right paravertebral muscle spasm" and determined that as a result of Pena's on-the-job injury, he qualified for a 5% whole-person impairment. Dr. Garza further certified that Pena had reached Maximum Medical Improvement, as his condition was stable and unlikely to change with additional treatment.
While undergoing treatment for his back injury, it was discovered that Pena had an abdominal aortic aneurysm and suffered from severe peripheral vascular disease. Pena's physician recommended that he undergo surgery in Houston to correct this life-threatening condition, and informed him that he would miss about a week of work. The surgery took place on July 12, 2006. Pena arranged with the County to be off work until July 19, 2006.
The surgery, however, turned out to be more complicated than originally thought. Pena was hospitalized for almost a week. Pena's cardiologist signed a letter stating that Pena could not return to work for 90 days. Pena immediately called the County to inform them that he would be unable to return to work on July 20, 2006 as originally planned. Pena's daughter, Kristina, hand-delivered the doctor's letter to Elsa,  a secretary at the County Attorney's Office. Pena's daughter asked Elsa whether any more documentation was needed, and she replied no, stating that she would see to it that Pena's leave was taken care of. At all times during his recuperation, either Pena, his daughter, or his wife kept the County informed as to Pena's medical condition.
On September 18, 2006, Pena received a letter from Starr County notifying him that as of August 18, 2006, his services were no longer required and informing him that his termination with Starr County was immediate. Pena was 58 years old at the time of his termination.
On October 28, 2007, Pena filed a lawsuit against the County alleging retaliation and discrimination based on age and disability. In the petition, Pena affirmatively averred that he had not alleged any federal cause of action. Almost three years later, on September 28, 2010, Pena amended his petition to add a claim for violations of the Family Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA). Pena sought damages for lost earnings and mental anguish, as well as attorney's fees and exemplary damages.
The County moved for summary judgment on both traditional and no-evidence grounds. Pena filed a response. The trial court granted summary judgment in favor of the County on all of Pena's claims. Pena now appeals.
Standard of Review
We review a summary judgment de novo. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). We review the evidence presented in the motion and response in the light most favorable to the party against whom the summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. See Fielding, 289 S.W.3d at 848; City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).
The party moving for traditional summary judgment bears the burden of showing no genuine issue of material fact exists and it is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(c); see also Knott, 128 S.W.3d at 216. To prevail as a defendant, the movant must either conclusively negate at least one essential element of each of the plaintiff's causes of action or conclusively establish each element of an affirmative defense that would overcome the plaintiff's cause of action. Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997).
In a no-evidence summary judgment motion, the movant contends there is no evidence of one or more essential elements of the claims for which the nonmovant would bear the burden of proof at trial. Tex.R.Civ.P. 166a(i). The trial court must grant the motion unless the nonmovant produces more than a scintilla of evidence raising a genuine issue of material fact on the challenged elements. See id.; see also W. Invs. Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). The nonmoving party is not required to marshal its ...