AFFIRM; Opinion Filed March 10, 2014.
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-12-01102-CV
RONALD KINABREW, Appellant V. INERGY PROPANE, LLC, Appellee
On Appeal from the 422nd Judicial District Court Kaufman County, Texas Trial Court Cause No. 83260-422
MEMORANDUM OPINION Before Justices Moseley, Lang, and Brown Opinion by Justice Brown
Ronald Kinabrew sued Inergy Propane, LLC for retaliatory discharge after he was
terminated from his position as a route manager at Inergy. Kinabrew maintains his termination
constituted retaliation for filing a workers’ compensation claim. For its part, however, Inergy
characterizes the termination as a routine application of the company’s leave-of-absence policy.
Inergy sought and obtained summary judgment, which resulted in dismissal of Kinabrew’s claim.
Kinabrew appealed. We affirm.
BACKGROUND
Kinabrew’s position as a route manager involved delivering propane to commercial and
residential customers in a service area. On January 4, 2010, Kinabrew suffered an injury to his
back while lifting a sixty-pound propane container onto a forklift. He reported the injury to his supervisor, who instructed Kinabrew to see a doctor. His doctor placed him on restricted duty
with instructions for follow-up visits.
Kinabrew previously had strained his lower back while on the job in April 2009. On that
occasion, his doctor placed him on restricted duty for a period of five days, during which
Kinabrew performed light duty at the office. That injury was resolved within a week, and he was
able to return to work without any limitations. Kinabrew inquired about performing light duty
after his second injury but was told by his supervisor that no light duty was available. Inergy
provides light duty for employees who have been injured on the job, but there is no written
policy for doing so. Due to the physical nature of the job, however, Inergy has only a limited
amount of light duty activities available for those employees. Available light duty generally
consists of taking care of the office, answering phones, and collecting payments from customers.
Kinabrew worked out of Inergy’s Kaufman office, which had just three employees, two of which
were route managers. Kinabrew’s workers’ compensation case manager noted on a job analysis
form that Kinabrew’s position as a route manager could not be temporarily or permanently
modified to accommodate his injury.
Inergy’s Employee Handbook included its policies for leaves of absence under the
Family Medical Leave Act (FMLA) and other discretionary leaves of absence. Under the FMLA
provision, an employee may take up to twelve weeks of job protected leave due to the
employee’s “serious health condition that makes the Employee unable to perform his/her job.”
A discretionary leave of absence may be given to employees who are not eligible for FMLA
leave or “if the request for leave is not for an FMLA-qualifying reason.” Generally, a leave of
absence must be approved by Inergy and may be granted for periods of up to twelve weeks. But
no leave “may be extended for a longer period,” except where required by applicable law, and
–2– “termination will result if an Employee on leave does not return to work within twelve (12)
weeks from the first day of the absence which is the subject of the leave.”
Sheila Searcy, Inergy’s senior human resources generalist located in the company’s
Kansas City office, informed Kinabrew by letter dated April 7, 2010 that company records
indicated Kinabrew’s leave, which began on January 5, 2010, had exceeded the maximum
twelve-week leave granted to employees and as a result, the company had made a decision to
terminate his employment. Searcy also informed Kinabrew that he was eligible to reapply for
employment if a position became available. During his leave, Inergy kept Kinabrew’s position
as a route manager open, and Inergy’s carrier paid Kinabrew workers’ compensation benefits for
his injury. Kinabrew had been under a doctor’s care and attending physical therapy since the
time of his injury. Throughout that time, he had been complaining about having spasms and pain
in his back. He admitted that he would not have been able to perform the duties of a route
manager as of the date of his termination. According to his medical records, Kinabrew did not
reach his maximum level of improvement until May 18, 2010, over a month after he was
terminated. He stated he was not released to return to work without restrictions until June 2010.
A year after his termination, Kinabrew sued Inergy, contending he was discharged or
discriminated against for filing a workers’ compensation claim in violation of chapter 451 of the
labor code. See TEX. LAB. CODE ANN. §§ 451.001–.003 (West 2006). He alleged he was entitled
to recover his lost future earnings and benefits as well as exemplary damages because his harm
was the result of Inergy’s actual malice. Inergy denied his claim, filed special exceptions to
Kinabrew’s claim for exemplary damages, and asserted, among other defenses, that its actions
were taken for non-discriminatory and non-retaliatory reasons.
Inergy also moved for summary judgment, arguing that Kinabrew could not establish the
essential elements of his claim. In particular, Inergy argued Kinabrew could not establish a
–3– causal link between his January 2010 filing of a workers’ compensation claim and his April 2010
termination because Kinabrew “can only speculate regarding the bases of his termination.” It
further asserted that there was no chapter 451 violation because Kinabrew’s termination was
based on the company’s neutral application of its leave-of-absence policy. Inergy maintained
Kinabrew was not treated differently from other Inergy employees regarding absences beyond
the twelve weeks granted under the policy. Inergy supported its summary-judgment motion with
excerpts from Kinabrew’s deposition, his responses to Inergy’s requests for admissions and
interrogatories, and the May 2010 medical evaluation. It also relied on the affidavit of Searcy
and related exhibits, including the employee handbook, the April 2010 termination letter, and an
e-mail regarding other employees who had been terminated for exceeding the maximum time
allowed for leave under the policy.
Kinabrew argued in response that the summary-judgment evidence establishes material
fact issues regarding “the causal connection issue, the illegitimacy of [Inergy’s] stated reason for
termination and that [Kinabrew] was unlawfully terminated.” He also objected to certain
paragraphs in Searcy’s affidavit and the e-mail related to other terminated employees based on
hearsay and because the employee names were redacted. He attached as summary-judgment
evidence his affidavit, deposition excerpts from Inergy’s regional vice president and division
president, his workers’ compensation status report, various medical reports, an e-mail from
Searcy to the division president about terminating Kinabrew, an April 2010 letter related to his
workers’ compensation claim, and the May 2010 medical evaluation. In a supplemental
response, he added excerpts from the deposition of his former supervisor, arguing that it was
apparent Inergy’s absence policy was “clearly not neutral.” Inergy filed objections to certain
paragraphs in Kinabrew’s affidavit, the deposition excerpts attached to the first response, and the
medical reports from various doctors.
–4– The trial court granted Inergy’s motion for summary judgment without specifying the
basis for its ruling and dismissed Kinabrew’s claim. The trial court did not rule on either party’s
objections to the summary-judgment evidence, and neither party raises an issue related to the
summary-judgment evidence on appeal. Consequently, the evidence submitted by the parties
remains part of the summary-judgment proof and will be considered on appeal. See Mitchell v.
Baylor Univ. Med. Ctr., 109 S.W.3d 838, 842 (Tex. App.—Dallas 2003, no pet.) (“Evidence that
has been objected to remains part of the summary judgment proof unless an order sustaining the
objection is reduced to writing, signed, and entered of record.”); see also Duncan-Hubert v.
Mitchell, 310 S.W.3d 92, 100 (Tex. App.—Dallas 2010, pet. denied) (concluding that mere
granting of summary-judgment motion was not implicit ruling on movant’s objections to non-
movant’s summary-judgment evidence).
DISCUSSION
Kinabrew raises five issues on appeal. In his first four issues, he challenges the summary
judgment, arguing summary judgment for Inergy was improper because he presented sufficient
evidence of a causal connection between his workers’ compensation claim and his termination.
He contends in his fifth issue that the trial court erred in concluding he failed to set forth
evidence that he was entitled to mental anguish damages.
Standard of Review
We review the trial court’s summary judgment under a de novo standard of review. Mid-
Century Ins. Co. of Tex. v. Ademaj, 243 S.W.3d 618, 621 (Tex. 2007); Adams v. Oncor Elec.
Delivery Co., L.L.C., 385 S.W.3d 678, 681 (Tex. App.—Dallas 2012, no pet.). When reviewing
a traditional summary judgment granted in favor of the defendant, we determine whether the
defendant conclusively disproved at least one element of the plaintiff’s claim or conclusively
proved every element of an affirmative defense. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420,
–5– 425 (Tex. 1997). A matter is conclusively established if ordinary minds cannot differ as to the
conclusion to be drawn from the evidence. Holloway v. Dekkers, 380 S.W.3d 315, 320 (Tex.
App.—Dallas 2012, no pet.). The movant has the burden of showing that no genuine issue of
material fact exists and that it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c);
Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796, 800 (Tex. 1994). In deciding whether a
disputed material fact issue exists precluding summary judgment, we must take evidence
favorable to the non-movant as true, and we must indulge every reasonable inference and resolve
any doubts in favor of the non-movant. Sysco Food Servs., 890 S.W.2d at 800; Adams, 385
S.W.3d at 681. When, as here, the trial court’s order granting summary judgment does not
specify the basis for the ruling, we will affirm the summary judgment if any of the theories
presented to the trial court are meritorious. Provident Life & Accident Ins. Co. v. Knott, 128
S.W.3d 211, 216 (Tex. 2003).
Applicable Law
Kinabrew brought his claim for wrongful termination or retaliatory discharge under
section 451.001 of the labor code. See Tex. Div.-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 313
(Tex. 1994) (per curiam) (referring to claims under section 451.001 as “retaliatory discharge”
claims). That section prohibits an employer from discharging or otherwise discriminating
against an employee for filing a workers’ compensation claim in good faith. TEX. LAB. CODE
ANN. § 451.001(1). Kinabrew bears the initial burden of establishing a prima facie case of
retaliatory discharge, which includes demonstrating a causal link between the discharge and the
filing of his workers’ compensation claim. Benners v. Blanks Color Imaging, Inc., 133 S.W.3d
364, 369 (Tex. App.—Dallas 2004, no pet.). That is, Kinabrew must show that Inergy’s action
“would not have occurred when it did had [Kinabrew’s] protected conduct—filing a workers’
compensation claim—not occurred.” Haggar Clothing Co. v. Hernandez, 164 S.W.3d 386, 388
–6– (Tex. 2005) (per curiam); Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450–51 (Tex.
1996). Kinabrew may establish the required causal link by direct or circumstantial evidence.
Benners, 133 S.W.3d at 369; Parker v. Valerus Compression Servs., LP, 365 S.W.3d 61, 67
(Tex. App.—Houston [1st Dist.] 2011, pet. denied).
Once Kinabrew meets his burden, the burden shifts to Inergy to rebut the alleged
improper termination by offering proof that a legitimate, non-discriminatory reason for the
termination exists. Benners, 133 S.W.3d at 369. If Inergy presents summary-judgment evidence
that the termination was for a legitimate, non-discriminatory reason, Kinabrew must, to survive
the motion for summary judgment, rebut Inergy’s summary-judgment evidence by either
producing controverting evidence raising a fact issue on whether the reason for termination was a
pretext for discrimination or challenging Inergy’s summary-judgment evidence as failing to
prove as a matter of law that the reason given was a legitimate, non-discriminatory reason. Id.
Summary judgment for Inergy is proper if Kinabrew fails to produce controverting evidence.
Carrozza, 876 S.W.2d at 314.
Analysis
Kinabrew contends the trial court erred in granting summary judgment for Inergy because
he “set forth clear evidence of a causal connection” between his filing of a workers’
compensation claim and his termination and claims there are material fact issues regarding
Inergy’s legitimate, non-discriminatory reason for his termination—the uniform application of
its leave-of-absence policy. Inergy responds that Kinabrew cannot establish a causal link
because Kinabrew’s claim is based on speculation. It also maintains Kinabrew failed to present
controverting evidence that it did not adhere to its neutral leave policy. For purposes of our
analysis, we will assume, without deciding, that Kinabrew presented sufficient evidence to
–7– satisfy his prima facie burden and turn to the summary-judgment evidence related to Inergy’s
non-discriminatory reason for the termination.
Inergy argued it was entitled to summary judgment on the ground that Kinabrew was
terminated not because he filed a workers’ compensation claim, but because his absence from
work exceeded the number of weeks allowed under its neutral leave-of-absence policy.
Generally, an employer who terminates an employee for violating a reasonable absence-control
provision will not be liable for retaliatory discharge “as long as the rule is uniformly enforced.”
Cont’l Coffee Prods., 937 S.W.2d at 451; see also Haggar Clothing Co., 164 S.W.3d at 388
(“[A]n employer who terminates an employee pursuant to the uniform enforcement of a
reasonable absence-control provision will not be liable for retaliatory discharge.”); Carrozza,
876 S.W.2d at 313 (employer’s uniform enforcement of reasonable absence-control policy does
not constitute retaliatory discharge). That is because “[i]f 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 . . . .” Cont’l Coffee Prods., 937 S.W.2d at 451. Thus, if Inergy enforced its
leave policy uniformly, and if Kinabrew violated it, then Kinabrew could not have been
terminated in violation of section 451.001. Id.
As part of its summary-judgment evidence, Inergy attached to Searcy’s affidavit a copy
of its Employee Handbook, which included the company’s leave-of-absence policy. Searcy, who
was responsible for overseeing the leave policy, testified that under the policy, an employee may
take up to twelve weeks of job-protected leave within the calendar year for any family and
medical leave to which he is entitled by law. She stated that Inergy’s “Discretionary Leave of
Absence” policy further clarifies that a leave of absence may be granted for periods of up to
twelve weeks. And “[e]xcept where required by law applicable law, no leave may be extended
–8– for a longer period, and termination will result if an Employee on leave does not return to work
within twelve (12) weeks form the day of the absence which is the subject of the leave.”
(Emphasis in original). She explained that Inergy’s leave policy is a neutral policy because it
applies to absences regardless of whether the absence is related to a workers’ compensation
claim or for other matters that may qualify for leave under Inergy’s policies.
Searcy also testified that Kinabrew was on leave for an injury, his leave exceeded the
twelve weeks allowed for leave under Inergy’s policy, and he was separated from Inergy because
of this violation. She added that Kinabrew “was not the only person terminated for exceeding
the leave policy.” She said Inergy terminated six other employees around the same time due to
their absences in excess of twelve weeks. She attached to her affidavit (1) the April 2010
termination letter she drafted and sent to Kinabrew, which explained that he was being
terminated because his absence had exceeded the maximum leave time of twelve weeks allowed
under the policy, (2) a “Payroll Change Form” that stated the reason for termination was because
Kinabrew “exceed[ed] the maximum leave amount per the company handbook,” and (3) an
internal e-mail from Inergy’s benefits analyst and the COBRA team, which listed the seven
employees (including Kinabrew) that had been terminated “for exceeding the maximum time
allowed to be out on leave.” Searcy stated that the names and other information for the
employees listed in the e-mail were redacted for privacy reasons. In the termination letter,
Searcy invited Kinabrew to re-apply for a position when one became available.
Inergy’s summary-judgment evidence also included excerpts from Kinabrew’s deposition
and his responses to Inergy’s requests for admissions. Kinabrew testified that after he received
the termination letter, he called Searcy, who “told [him] that [Inergy] could terminate [him] after
12 weeks had passed from the date of the injury.” He agreed he had been absent from work for
more than twelve weeks and that Inergy had kept his position open for the duration of his leave.
–9– Inergy submitted evidence that the job duties of a route manager included climbing in and out of
the vehicle between 60-120 times per day, stooping and bending, frequently reaching, sitting,
standing, and walking as well as pulling a hose with a force that may exceed 150 pounds. The
position could not be temporarily or permanently modified. Kinabrew conceded that, as of April
6, 2010, he was unable to fulfill the requirements of his job. Kinabrew’s medical records
showed he did not achieve maximum improvement until May 2010, and he stated he “was
released to return to work without restrictions on or about June 2010.”
Kinabrew further testified that although he believed someone wanted to terminate him
because he filed a workers’ compensation claim, he admitted his claim was based on feeling and
speculation. And he knew of no employee who was on leave and spent more than twelve weeks
away from work. He did not know who made the decision to terminate him. Nor did he have
any evidence of why he was terminated other than the reason stated in the letter. Significantly,
Kinabrew stated he knew of no reason why Inergy’s leave policy should not apply to him.
Kinabrew argues there are material fact issues regarding whether his termination was
tainted with a discriminatory motive because there is “no confirmation from [Inergy] that the
policy was in fact uniformly or neutrally applied” and “no evidence from [Inergy] that the
decision to terminate [him] was not motivated by [his] workers’ compensation claim.” To
survive the summary-judgment motion, however, it was Kinabrew’s burden to rebut Inergy’s
summary-judgment evidence by producing controverting evidence of a retaliatory motive or
establish that Inergy’s leave policy was not uniformly enforced. Haggar Clothing Co., 164
S.W.3d at 388–89; Parker, 365 S.W.3d at 68; Benners, 133 S.W.3d at 372. This burden required
Kinabrew to provide competent evidence that Inergy applied the leave policy differently to
similarly situated employees. Parker, 365 S.W.3d at 68; Larsen v. Santa Fe Indep. Sch. Dist.,
296 S.W.3d 118, 132 (Tex. App.—Houston [14th Dist.] 2009, pet. denied). “‘Employees are
–10– similarly situated if their circumstances are comparable in all material respects, including similar
standards, supervisors, and conduct.’” Parker, 365 S.W.3d at 69 (quoting Ysleta Indep. Sch.
Dist. v. Monarrez, 177 S.W.3d 915, 917 (Tex. 2005) (per curiam)). Such evidence would create
a fact issue as to Inergy’s true motive in discharging him.
Kinabrew generally relies on his affidavit testimony to support his argument that there
are fact issues regarding Inergy’s reason for terminating him. But he does not identify any
specific facts or statements in his affidavit that demonstrate Inergy did not uniformly apply its
leave-of-absence policy. In particular, he does not identify any other employees that were
treated differently in comparison to him to demonstrate Inergy’s alleged unequal treatment of
them under its policy. Nor does he refute (1) his deposition testimony in which he testified he
knew of no employee who was on leave and spent more than twelve weeks away from work or
(2) Searcy’s testimony that Kinabrew was one of seven employees terminated around the same
time for exceeding the time allowed under the leave policy. Kinabrew did not object to Searcy’s
statement regarding the other employees or raise an issue related to the statement on appeal.
The evidence Kinabrew attached to his response to Inergy’s motion similarly does not
controvert Inergy’s contention it uniformly applied its leave policy. Kinabrew attached the
deposition of Inergy’s division president, Mark Anderle, who testified that the recommendation
to terminate Kinabrew because his “time was up” came from Inergy’s Kansas City office.
Anderle said he received an e-mail asking him if he had any objections to Kinabrew’s
termination, and he replied that he knew of nothing that would prevent it. Anderle added that it
was “just normal practice.” While he did not know of any employees who had been away from
work longer than twelve weeks for a non-work-related injury, Anderle said “[i]t’s in the policy
that after that time period, [the employee is] terminated.” Kinabrew included the e-mail
referenced in Anderle’s deposition as part of his summary-judgment evidence. The e-mail was
–11– from Searcy, who wrote that she “ran the monthly reports of employees who have exceeded the
maximum amount of time that they can be off per our company handbook” and Kinabrew had
been off since January 5, 2010, which “exceeds the amount of time he is allowed” per the leave
policy. She asked Anderle if he had any objection to her sending Kinabrew a termination letter.
Kinabrew suggests that Inergy’s assertion that it uniformly applied its neutral leave
policy was “fabricated” because the company provided him with light duty following his 2009
back injury but “refused to provide him light duty work after his 2010 injury.” He claims the
“only logical conclusion” for this refusal is that once Inergy “became aware of the severity of
Kinabrew’s 2010 injury they wanted to avoid paying Kinabrew’s workers’ compensation
benefits which they did.” He contends that none of Inergy’s witnesses ever stated why light duty
“evaporated” and maintains there is a fact issue on why he was not provided light duty. Anderle
testified, however, that Inergy “sometimes” offers light duty activities to employees injured on
the job but that he has not seen a written policy requiring light duty. Inergy’s regional vice
president, Jay McClung, testified that Inergy may provide light duty to an injured employee “if it
is available.” He explained that because Inergy’s business is “seasonal,” the availability of light
duty depended on the time of year, with light duty positions “more likely” available in the
summer months because “[t]here’s not as much going on.” McClung also explained that
employees on restricted duty could fill in for other employees who are on vacation. He said that
for an office with just three people, the availability of light duty would be seasonal and
“[g]enerally between October and March nobody is taking vacations.” Kinabrew was injured in
January 2010. Kinabrew’s former supervisor, Timothy Hartweck, testified that there was a “very
limited amount of restricted duty” available due to the physical nature of the job. Kinabrew says
that his 2010 injury was a “more severe injury” and admitted that he could not perform the
position of a route manager at the time of his termination.
–12– Kinabrew contends that if Inergy “had adhered to the policy of providing restricted
activity the twelve weeks would never have expired on the day it did.” He further contends
Inergy’s evidence regarding light duty was inconsistent and contradictory, calling it “an ever
moving target.” Yet he presents no evidence that a light duty position existed or was available at
any time between January 5, 2010 and the time of his termination in April 2010. He also does
not identify any other evidence showing that other employees received light duty around the
same time yet he was refused light duty work. No Inergy employee testified that the company
had a light-duty policy, and Kinabrew acknowledged in his deposition that he did not know
whether the company was obligated to provide light duty for his second injury. In the absence of
any policy or practice to the contrary, Inergy’s refusal to create a light duty position for
Kinabrew “does not give rise to an inference of discrimination or retaliation.” Urquidi v. Phelps
Dodge Ref. Corp., 973 S.W.2d 400, 405 (Tex. App.—El Paso 1998, no pet.).
Kinabrew finally argues that Inergy’s policy was not a neutral policy, asserting that “[b]y
definition,” the policy is “neither neutral nor uniform because it is ‘discretionary.’” Under the
terms of the policy, however, a “discretionary” leave of absence is one that the company may
provide if an employee is not eligible for FMLA leave or if a request for leave is not for an
FMLA-qualifying reason. Searcy testified that the policy was neutral because Inergy applied the
provisions of the policy to any type of matter that qualified for leave. Kinabrew does not refute
Searcy’s testimony or present evidence to show that Inergy otherwise departed from its leave
policy. “In a situation where the discharge policy was drawn in such a manner only to apply to
employees filing workers’ compensation claims, or if it could be shown that the policy was
enforced only against employees filing workers’ compensation claims, this would be a logical
inference that there was not a neutral application of a company policy” and would indicate an
unlawful discharge under section 451.001. Fenley v. Mrs. Baird’s Bakeries, Inc., 59 S.W.3d
–13– 314, 326 (Tex. App.—Texarkana 2001, pet. denied). But no such policy or practice has been
shown here.
Based on the record before us, Inergy presented sufficient summary-judgment evidence
to show that it terminated Kinabrew because his absence from work exceeded the number of
weeks allowed under its neutral leave-of-absence policy. And because Kinabrew has not
established that the leave policy was enforced differently with regard to a similarly situated
employee, he did not carry his burden to produce evidence controverting Inergy’s evidence
establishing its entitlement to summary judgment. See Carrozza, 876 S.W.2d at 313–14. We
therefore conclude the trial court properly granted summary judgment on Kinabrew’s retaliatory
discharge claim. We overrule Kinabrew’s first issue in which he generally asserted the trial
court erred in granting summary judgment for Inergy.
Based on our resolution of his first issue, it is unnecessary for us to address Kinabrew’s
three additional issues in which he challenges the trial court’s summary judgment and contends
he “set forth clear evidence” of a causal connection or his final issue in which he contests the
trial court’s conclusion related to his entitlement to mental anguish damages. See TEX. R. APP. P.
47.1. Accordingly, we affirm the trial court’s order granting summary judgment for Inergy.
/Ada Brown/ ADA BROWN JUSTICE
121102F.P05
–14– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
RONALD KINABREW, Appellant On Appeal from the 422nd Judicial District Court, Kaufman County, Texas No. 05-12-01102-CV V. Trial Court Cause No. 83260-422. Opinion delivered by Justice Brown. INERGY PROPANE, LLC, Appellee Justices Moseley and Lang participating.
In accordance with this Court’s opinion of this date, the trial court’s order granting appellee Inergy Propane, LLC’s motion for summary judgment is AFFIRMED.
It is ORDERED that appellee Inergy Propane, LLC recover its costs of this appeal from appellant Ronald Kinabrew.
Judgment entered this 10th day of March, 2014.
–15–