A Texas appellate court recently affirmed a judgment on a jury verdict of more than $100,000 in favor of a former employee who filed a retaliatory discharge action against the former employer. The employer contended the employee was terminated pursuant to a “uniformly enforced, cause-neutral absence control policy”—the time limit for his FLMA leave had expired. The court acknowledged that where an employee is terminated in strict compliance with such an absence control policy, the employer is entitled to a presumption that the proximate cause of termination was the policy and not the worker's compensation claim. The court observed, however, that three weeks after the employee’s work-related injury, the employer’s CFO unilaterally changed the injured employee’s status from unlimited leave under workers’ compensation to the time-limited leave available under the FMLA. The court observed further that the CFO was clearly aware of the employee’s comp claim and that at some time during the employee’s “absence,” he was also demoted. The court noted further that two days after the CFO changed the employee’s status, he sent the employee a letter telling him to turn in his uniforms. The court held there was sufficient evidence to give rise to a permissible inference of retaliation and because circumstantial evidence rose to the level enabling reasonable people to differ, the appellate court lacked authority to overturn the jury's finding of retaliation.
Reported by Thomas A. Robinson, J.D.
LexisNexis Online Subscribers: Citations below link to Lexis Advance. Bracketed citations link to lexis.com.
See Kingsaire, Inc. v. Melendez, 2013 Tex. App. LEXIS 14354 (Nov. 22, 2013) [2013 Tex. App. LEXIS 14354 (Nov. 22, 2013)]
See generally Larson’s Workers’ Compensation Law, § 104.07 [104.07]
Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law.
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