Appeal from the 157th District Court Harris County, Texas
Trial Court Cause No. 2015-33938
consists of Justices Christopher, Busby, and Jewell.
an appeal from a summary judgment rendered on behalf of an
employer in a wrongful-termination suit. The employee argued
that her termination was based on the filing of a
workers' compensation claim, but her employer countered
that the termination was based on the employee's
violation of a uniformly enforced absenteeism policy. The
ultimate issue for this court to decide is whether the
employee presented more than a scintilla of evidence to show
that her termination was not the result of the employer's
absenteeism policy. Because the employee presented no
evidence on that point, we conclude that the employer is
entitled to judgment as a matter of law. We therefore affirm
the trial court's judgment in favor of the employer.
Brothers worked for La Quinta as a housekeeper. On June 14,
2013, she was mauled at work by a pit bull belonging to one
of the hotel's guests. The pit bull scarred
Brothers's face, damaged her teeth, and lacerated her
her discharge from the hospital, Brothers was treated by Dr.
Carlos Murillo, a plastic surgeon who accepted patients under
La Quinta's workers' compensation plan. During an
office visit on July 24, Dr. Murillo determined that
Brothers's wounds had closed and that a scar revision of
her facial injury was possible, depending on future healing.
expressed a concern to Dr. Murillo about her return to work,
which was tentatively scheduled for August 24. Brothers was
specifically worried that her facial injury might be
exacerbated by an exposure to cleaning chemicals. Dr. Murillo
responded that her wound would not be affected by airborne
chemicals because the wound had already closed. Dr. Murillo
also explained that "it would be impossible for [him] to
extend her release based on the facial scar alone."
After the examination, Dr. Murillo submitted a form to the
Division of Workers' Compensation, in which he opined
that Brothers's injury would prevent her from working
until August 24.
same day as the examination with Brothers, Dr. Murillo
received a call from one of La Quinta's case managers,
who inquired about when Brothers could return to work. Even
though Dr. Murillo had just recently decided that August 24
would be a suitable return date, he told the case manager
that Brothers could "probably" return to work as
soon as August 6. Dr. Murillo believed that this earlier date
might actually be better for Brothers, because he would then
know at Brothers's follow-up appointment "how she
reacted at work and how the wound reacted to work."
After his call with the case manager, Dr. Murillo submitted a
revised form to the Division of Workers' Compensation,
clearing Brothers to return to work without restrictions on
though Brothers had been cleared to return to work on August
6, La Quinta did not put her back on the work schedule until
several weeks later. Before then, on August 15, Brothers met
with Dr. Edwin Taegel, an orthopedic surgeon, for the limited
purpose of deciding whether Brothers had reached maximum
medical improvement. Dr. Taegel found that Brothers had
reached maximum medical improvement for some of her injuries,
but not for the injury to her face. Dr. Taegel also agreed
with Dr. Murillo's assessment that Brothers was still
capable of returning to work as of August 6.
August 20 and August 27, a representative from La
Quinta's corporate offices made several attempts to
contact Brothers by phone. All of these contacts were
unanswered until August 28, when Brothers called back to ask
about the status of her workers' compensation benefits.
The representative informed Brothers that coverage decisions
are made by the insurance carrier, not by La Quinta. The
representative also advised Brothers of records indicating
that she had been cleared to return to work.
same day, on August 28, Brothers revisited Dr. Murillo, who
again determined that she was able to return to work.
general manager of the La Quinta hotel where Brothers had
worked reached out to Brothers on August 29 and August 30. On
both occasions, the general manager called and left a message
saying she had been advised that Brothers was able to return
to work. Brothers did not respond, nor did she return to
September 4, the general manager mailed a letter to Brothers,
saying that if she did not return to work by September 6, the
general manager would assume that Brothers had resigned.
Brothers called the general manager on September 5, saying
that she was unable to return because she was too scared ...