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Deborah Brothers v. LQ Management LLC

Court of Appeals of Texas, Fourteenth District

July 13, 2017

DEBORAH BROTHERS, Appellant
v.
LQ MANAGEMENT LLC, LQ TX PROPERTIES, LLC A/K/A BRE/LQ TX PROPERTIES, LLC AND LA QUINTA, L.L.C., Appellees

         On Appeal from the 157th District Court Harris County, Texas Trial Court Cause No. 2015-33938

          Panel consists of Justices Christopher, Busby, and Jewell.

          MEMORANDUM OPINION

          Tracy Christopher Justice

         This is 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.

         BACKGROUND

         Deborah 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 arms.

         After 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.

         Brothers 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.

         On the 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 August 6.

         Even 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.

         Between 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.

         That same day, on August 28, Brothers revisited Dr. Murillo, who again determined that she was able to return to work.

         The 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 work.

         On 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 ...


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