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Tawil v. Cook Children's Healthcare System

Court of Appeals of Texas, Second District, Fort Worth

May 30, 2019

Kyle Tawil, Appellant
v.
Cook Children's Healthcare System, Appellee

          On Appeal from the 236th District Court Tarrant County, Texas Trial Court No. 236-291175-17

          Before Kerr, Birdwell, and Bassel, JJ.

          OPINION

          Dabney Bassel Justice.

         I. Introduction

         After Appellant Kyle Tawil's employment as a rehabilitation technician with Appellee Cook Children's Healthcare System ended, Tawil sued, claiming that Cook Children's terminated his employment in retaliation for filing a workers' compensation claim. Cook Children's responded with a combined traditional and no-evidence motion for summary judgment. The trial court granted the motion. Tawil appealed.

         Cook Children's presented a legitimate reason why it terminated Tawil's employment-he repeatedly violated a hospital policy that required him to notify his supervisor if he would not be reporting to work. The summary-judgment record does not raise a fact issue to support Tawil's claim that Cook Children's claimed reason to terminate his employment was a pretext and that it fired him in retaliation for having filed a workers' compensation claim. We affirm.

         II. Procedural and Factual Background

         A. Tawil's suit, Cook Children's summary-judgment grounds, the trial court's ruling, and Tawil's issues on appeal

         Tawil sued Cook Children's raising the single claim that he was discharged because he filed a workers' compensation claim due to an on-the-job injury. He pleaded that Cook Children's actions violated section 451.001 of the Texas Labor Code.

         Cook Children's answered and later filed a combined no-evidence and traditional motion for summary judgment. The motion's no-evidence grounds turned on whether Cook Children's claimed reason for separating Tawil from his employment was pretextual:

• "Defendant is entitled to no-evidence summary judgment because there is no evidence in the record to establish Tawil's [prima facie] case of worker[s'] compensation retaliation because there is no evidence of any of the . . . factors [that establish his employer's stated reason for termination was pretextual]."
• "Further, there is no evidence that Defendant's legitimate, non-retaliatory reasons for termination are pretextual."

         Cook Children's based its traditional summary judgment on similar grounds, asserting that it had a legitimate reason to separate Tawil's employment:

Defendant is also entitled to traditional summary judgment because the facts in the record establish that there is no causal link between Tawil's worker[s'] compensation claim and his termination because the facts negate the . . . factors [reviewed to determine whether the employer's stated reason for termination was a pretext] and because [Cook Children's] terminated Plaintiff for legitimate, non-retaliatory reasons, which were not pretext[, ] and [that] no genuine issue of material fact exists with respect to the reasons for [Cook Children's] decision.

         The trial court granted Cook Children's motion "in all respects" and dismissed all of Tawil's claims with prejudice.

         Tawil challenges the trial court's granting of summary judgment in three issues, contending that (1) he was not terminated "pursuant to a well-established, uniformly applied termination policy," (2) circumstantial evidence establishes the existence of factors showing his termination was a pretext, and (3) the policy that Cook Children's relied on to terminate him "was not in effect during a pending workers' compensation case."

         B. Tawil's employment, injury, medical treatment, and relationship with his supervisors

         In August 2016, Tawil began his employment with Cook Children's as a rehabilitation technician at Cook Children's Rehab-South Forth Worth Clinic. The controversy at issue began with an injury he suffered in mid-November of that year and ended when he was separated from employment a few weeks later on December 6.

         Tawil injured himself moving several heavy items at the clinic. His shoulder was sore for several days afterwards. On November 11, he felt a pop in his shoulder that caused him severe pain.

         After experiencing the pop, Tawil's supervisor instructed him to contact the occupational health department of Cook Children's and to fill out an employee report of his injury. He made contact with occupational health, filled out the required form, and was instructed to see a doctor, which he did. After examining Tawil, the physician prepared a work-status report and placed him on work restrictions that limited his physical activities but that allowed him to return to work. The report did not impose any medication restrictions. Tawil received a prescription for a limited amount of narcotic pain medication, which was apparently refilled once.

         The physician examined Tawil again three days after the initial examination. The physician prepared another work-status report that allowed him to return to work with restrictions on his activities. After the second examination, the physician did not believe that Tawil required narcotic pain medication while working. Another work-status report prepared by the physician approximately two weeks later, a few days before Tawil's separation from employment, placed restrictions on Tawil's work activities but again cleared him to return to work and expressed the physician's belief that Tawil did not need to take narcotic pain medication at work.

         A few days after the initial examination of Tawil's injury, Cook Children's made a "bona fide offer of employment" to Tawil, which offered a temporary modified-duty position to accommodate the restrictions established by his physician. His supervisor stated that she planned to accommodate the restrictions by assigning Tawil limited work activities. After the last documented visit to his physician, Cook Children's made another bona fide offer of employment to Tawil that accommodated the restrictions contained in the later work-status report. Tawil rejected both offers.

         Tawil testified that he continued to take the prescribed narcotic pain medication with the exception of the one day that he returned to work approximately a week after his injury. That day, Tawil left work early because he was in pain. Tawil stated that he did not want to drive and was unable to work while taking the medication. Taking the medication was one of the reasons why Tawil stated he could not work under the restrictions established by his physician.

The written policies of Cook Children's state that an employee may not report to work or perform[] other job duties while under the influence of other drugs, including prescription or over-the-counter drugs, when there is any possibility that such use may adversely affect the employee's ability to safely perform his/her job, or may adversely affect his/her safety or that of patients or other employees.

         And Tawil's supervisor also testified that he would not be allowed to work in her department while under the influence of narcotic pain medication.

         Tawil described what he viewed as the negative attitude of his supervisors toward him because of his claim that he could not work without taking narcotic pain medications. In his deposition, he described the attitude of his main supervisor as being "snappy and stern" during the partial day that he worked after his injury. In addition, she ignored him and was "rude and ugly" in an unspecified way in text messages. He also responded to a question asking who else acted unprofessionally or inappropriately by saying that the clinic lead who oversaw rehabilitation technicians acted in that fashion on the day that he worked. But he did not give any details describing how her behavior was unprofessional or inappropriate.

         Tawil also characterized the attitude of a person with whom he dealt in the occupational health department as aggressive and rude. In Tawil's view, this person wanted him to sign the initial bona fide offer of employment that accommodated the restrictions placed on his job duties by his physician. His complaint focused on her alleged attitude about his refusal to accept the offer of employment and the pain medication that he was prescribed. He stated, "[S]he said that they have a no-narcotics policy and [that] she would not take no for an answer and said that I had to come back or I would be fired." In an affidavit that Tawil filed in support of his response to Cook Children's motion for summary judgment, he stated that the occupational health department representative "kept threatening me that she didn't want me to lose my job and she didn't want me to get fired for simply being out on workers' compensation." The affidavit also described a phone call during which his supervisor and the occupational health department representative were "very stern" in telling him that he was not protected by FMLA and that he was going to lose his job if he did not come back to work.

         C. Communications between Cook Children's and Tawil about his employment, Cook Children's employment policies, Tawil's separation from employment, and Cook Children's enforcement of its attendance policies

         From the beginning of his employment, Tawil understood that if he was going to be absent from work, he was required to notify his supervisor. Further, Tawil acknowledged that when he began working for Cook Children's, he signed an acknowledgement that he would fully abide by Cook Children's handbook of policies and procedures. The summary-judgment record contains a new-hire acknowledgement electronically signed by Tawil.

         Cook Children's maintains an attendance policy with two provisions relevant to this controversy. First is a policy that provides as follows, "No Call - When an employee fails to come in for a scheduled shift and fails to notify [his] supervisor by the start of [his] shift, [he] will be considered a no call for the shift. This will count as three occurrences." Second is a policy that provides, "Job Abandonment - Failure to report to work for two consecutive days without personally notifying supervisor." We will refer to both policies collectively herein as the "No Call-No Show Policy."

         Tawil's supervisor testified that a few days after his injury, she reminded Tawil that he still needed to follow Cook Children's attendance policy:

I sent Tawil a text message on November 17, reminding him that he was still required to follow [Cook Children's] attendance policy[, ] which included calling in each day prior to the start of the shift to advise whether he would be reporting to work or not. . . . I also verbally counseled him on multiple occasions of the need to follow the attendance policy by calling in prior to the start of his shift if he would be absent.

         The text message referred to in the quoted paragraph stated, "Kyle, you still need to follow the PTO / Attendance policy, and notify us of any schedule changes an hour prior to your expected shift[.]" Tawil acknowledged that the supervisor "told [him] on November 17th [that he] needed to follow the attendance policy."

         At some point after the injury, Tawil's supervisor spoke with Tawil by phone and reminded him of the need to follow Cook Children's attendance policy.

         A few days after sending Tawil the text message on November 17, his supervisor sent Tawil a letter dated November 23, which reiterated the need for him to comply with the No Call-No Show Policy and how he had failed to comply in the days after his supervisor's November 17 reminder:

In accordance [with] the attendance policy of Cook Children's Medical Center, each employee is required to notify [his] supervisor if [he is] unable to report to work as scheduled. As of this date, I have not received any notification from you since our last conversation on 11/17/16. Since that time, you were scheduled to work and failed to call or show up on the following dates:
Friday 11/18/16
Monday 11/21/16
Tuesday 11/22/16
Wednesday 11/23/16
The attendance policy states the following: Job Abandonment - Failure to report to work for two consecutive days without personally notifying supervisor will result in administrative review.
Upon receipt of this notice, you have 5 days to notify me of your intent to return to work. If you fail to reply, your silence and failure to comply with the attendance policy will be accepted as your intent to resign your position[, ] and your termination will be processed.
Please contact me at my work number. Please note that my work number has changed. The ...

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