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YOU’VE BEEN SUED FOR WORKERS’ COMP RETALIATION-- NOW WHAT?

In reaction to what was perceived by many to be an “insurance crisis” in the late

1980s to early 1990s, Texas lawmakers undertook significant measures to “reform” the

Texas Workers’ Compensation Act. As a result of those sweeping legislative changes, the

number of workers’ compensation insurance claim lawsuits in Texas was drastically reduced.

Although the legislative overhaul of the Texas workers’ compensation system achieved

many intended results, the legislators did not deem it necessary to modify the statutorily-

created cause of action for so-called “workers’ comp retaliation.” Such lawsuits remain

among the most potentially dangerous and expose unsuspecting employers to large damages

awards. An employer sued for “workers’ comp retaliation may find himself or herself

asking: “Now what?”

I. What Are The Legal Issues?

Workers’ compensation retaliation claims are creatures of statute whose present-day

origins can be traced to Article 8307(c) of the Texas Revised Civil Statutes Annotated.

Article 8307(c) was repealed and replaced, effective September 1, 1993, by Chapter 451 of

the Texas Labor Code. The prohibitions contained in Chapter 451 are the same as those

which existed in Article 8307(c).

A. Texas Labor Code prohibits “discrimination” by private employers.

Texas Labor Code §451.001 prohibits “a person” from discharging or in any

other manner discriminating against an employee because the employee has:

(1) filed a workers’ compensation claim in good faith;

(2) hired a lawyer to represent the employee in a claim;

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(3) instituted or caused to be instituted in good faith a proceeding [under

the Texas Workers’ Compensation Act]; or

(4) testified or is about to testify in a proceeding [under the Act].

Because workers’ comp retaliation claims are statutory in nature and scope, the starting point

for analyzing any such claims begins with the following questions:

(1) Did the employer discharge the employee or otherwise discriminate

against the employee in some manner (i.e. treat the employee more

harshly or in a disparate manner as compared to similarly-situated

employees)?

(2) If so, is there direct or circumstantial evidence suggesting that the

underlying reason was because the employee engaged in (or was

suspected of engaging in) one or more of the four statutorily-

protected activities (i.e. filed a claim, hired a lawyer, instituted a

proceeding for workers’ comp benefits, or testified at a hearing)?

B. State and local government employers.

While the statutory prohibitions of Chapter 451 apply to virtually every

“person” in the private sector, the same can not be said for those who toil in the public

sector. Texas courts interpreting the scope of Chapter 451 and its application to

governmental employers have struggled mightily with respect to the issue of sovereign

immunity. Courts have found that sovereign immunity has been waived with respect to

Chapter 451 for some, but not all, governmental employers. The question of whether or not

a public sector employee may pursue a workers’ comp retaliation lawsuit is largely

determined by the identity of his or her employer. Some are immune from suit, while some

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are not. For example, in Clark v. University of Texas Health Science Center, 919 S.W.2d

185, 188 (Tex. App. - Eastland 1996, writ denied) employees of the University of Texas

System were found not covered by the anti-retaliation provisions of Chapter 451. The fact

that some employees are covered by Chapter 451 whereas other public employees are not has

been held not to violate the equal protection provisions of the Constitution. Id.

Many, if not most, of the larger public employers are covered by Chapter 451.

For example, Tex.Lab.Code §504.002(a) provides that Chapter 451 applies to employees of

political subdivisions. Canutillo Indep. School District v. Olivares, 917 S.W.2d 494, 496

(Tex. App. - El Paso 1996, no writ). Likewise, sovereign immunity for municipalities has

been held to have been waived for claims under Chapter 451, although municipalities can not

be held liable for punitive damages and the amount of actual damages recoverable is limited.

City of LaPorte v. Barfield, 898 S.W.2d 288 (Tex. 1995); Kuhl v. City of Garland, 910 S.W.

929 (Tex. 1995).

C. Nonsubscribers

Employers who voluntarily opt out of the Texas workers compensation

system--i.e. affirmatively notify the Texas Workers’ Compensation Commission that they do

not provide workers’ compensation insurance coverage for their employees--are referred to

as “nonsubscribers.” Beginning in the mid-1980s, during the so-called “insurance crisis,” an

increasing number of Texas employers became “nonsubscribers” to avoid the high cost of

workers’ compensation insurance. Thereafter, Texas courts began to struggle with issue of

whether “nonsubscribers” were subject to liability under Chapter 451. The issue eventually

was resolved by the Texas Supreme Court’s decision in Texas Mexican Railway Co. v.

Bouchet, 963 S.W.2d 52, 55-57 (Tex. 1998), which held that nonsubscribers are not subject

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to Chapter 451 actions (because Chapter 451 protects only persons who can file workers’

compensation claims under the Texas Workers’ Compensation Act).

II. What Are The Procedural Issues?

A. Notice of claim and service of process.

A critical inquiry in virtually every workers’ comp retaliation claim is

whether the retaliation claim was filed timely? Chapter 451 does not have its own statute of

limitations; therefore, the two-year statute of limitations for personal injury torts is

applicable. Almazan v. United Services Auto Association, 840 S.W.2d 776 (Tex. App. - San

Antonio 1992, writ denied). The Texas Supreme Court has held that the statute begins to run

when “the employee receives unequivocal notice of his or her termination or when a

reasonable person should have known of his or her termination.” Johnson & Johnson

Medical v. Sanchez, 924 S.W.2d 925, 928 (Tex. 1996) (placing an employee on “indefinite

medical layoff” was insufficient notice of termination); see, also, Thurman v. Sears Roebuck

& Company, 952 F.2d 128, 131 (5th Cir. 1992), reh’g denied 957 F.2d 869 (5th Cir. 1992),

cert. denied, 506 U.S. 845 (1992). The “notice” issue also is important in those cases in

which the plaintiff alleges retaliatory layoff, transfer, demotion, etc. or in cases in which the

plaintiff has alleged a retaliatory “constructive discharge.” In those cases, the courts have

held that the statute of limitations begins to run when the plaintiff has been given actual

notice of his or her layoff, demotion, transfer, rather than when the adverse action actually

occurs. For example, in Davila v. Lockwood, 933 S.W.2d 628 (Tex. App. - Corpus Christi

1996, no writ) the court held that the plaintiff’s cause of action for constructive discharge

due to a hostile work environment accrued when the plaintiff gave his two-week notice that

he was quitting, not when he actually quit his job. The court concluded that the plaintiff

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would have had notice of the intolerable working conditions not later than the point at which

the plaintiff felt compelled to resign.

Notably, Chapter 451 does not apply to applicants for employment.

Therefore, an employee who is permanently laid off or terminated from employment can not

resurrect the limitations period by making subsequent requests for rehire. Smith v. Coffee’s

Shop for Boys and Men, Inc., 536 S.W.2d 83, 84 (Tex. App. - Amarillo 1976, no writ)

Likewise, a plaintiff pursuing a Chapter 451 cause of action must plead and prove that he or

she was an employee of the defendant employer at the time of the incident made the basis of

the lawsuit, i.e. independent contractors or former employees may be precluded from

pursuing a workers’ comp retaliation claim. See Anchor Casualty Company v. Hartsfield,

390 S.W.2d 469 (Tex. 1965) (independent contractor not entitled to Chapter 451 protection);

Mayo v. Southern Farm Bureau Casualty Insurance Company, 688 S.W.2d 241 (Tex. App. -

Amarillo 1985, writ refused n.r.e.) (driver of leased truck lacks standing as an employee to

pursue a Chapter 451 claim); Stoker v. Furr’s Inc., 813 S.W.2d 719 (Tex. App. - El Paso

1991, writ denied) (Chapter 451 does not protect job applicants).

B. State v. federal court.

Ordinarily, workers’ comp retaliation suits under Chapter 451 may not be

filed in federal court or removed to federal court, even if the diversity and amount in

controversy requirements are satisfied. See Anderson v. American Airlines, Inc., 2 F.3d 590

reh’g denied 9 F.3d 105 (5th Cir. 1993); Jones v. Roadway Express, Inc., 931 F.2d 1086,

1092 reh’g denied 936 F.2d 789 (5th Cir. 1991). Moreover, at least one court has held that a

Chapter 451 suit can not be removed to federal court even if it is pendent to a federal

question claim. Sherrod v. American Airlines, 132 F.3d 1112 (5th Cir. 1998).

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C. Burdens of proof.

To prevail on a workers’ comp retaliation claim under Chapter 451, an

employee must prove that he or she was discharged or received some other adverse treatment

from his employer because the employee (1) filed a workers’ compensation claim in good

faith, or (2) hired a lawyer to represent the employee in a claim, or (3) instituted or caused to

be instituted in good faith a proceeding under the Workers’ Compensation Act, or (4)

testified (or is about to testify) in a workers’ compensation proceeding. Texas Labor Code

§451.001. The employee must demonstrate by direct or circumstantial evidence a causal

connection between the discriminatory or retaliatory act and the employee’s participation in

activities protected by Chapter 451. Continental Coffee Products Company v. Cazarez, 937

S.W. 2d 444 (Tex. 1996); Palmer v. Miller Brewing Company, 852 S.W.2d 57, 61 (Tex.

App. - Fort Worth 1993, writ denied).

A number of Texas courts have liberally applied the burden of proof standards

with respect to the plaintiff’s proof of a causal connection between an adverse action and the

plaintiff’s filing of or participation in the pursuit of a workers’ compensation claim. It is not

necessary, for example, that the worker’s compensation claim for benefits have been the sole

cause for the discharge or discrimination; the plaintiff must show only that without the

claim, the discharge or discrimination would not have occurred. Continental Coffee

Products Company v. Cazarez, 937 S.W. 2d 444, 451 n.3 (Tex. 1996) (uniform enforcement

of reasonable absence-control provision does not constitute a retaliatory discharge).

Likewise, it is not necessary that the employee actually have filed a claim for worker’s

compensation prior to being discharged, it is sufficient if the employee took steps toward

instituting a proceeding, such as informing the employee of his or her injury. Worsham Steel

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Company v. Arias, 831 S.W.2d 81, 84 (Tex. App. - El Paso 1992, no writ); Borden, Inc. v.

Guerra, 860 S.W.2d 515, 521 (Tex. App. - Corpus Christi 1993, dis. agr.) (notifying

employer of injury and completing injury report was sufficient); Southwestern Electric

Power Company v. Martin, 844 S.W.2d 229, 232 (Tex. App. - Texarkana 1992, den.)

(employee’s request for a hearing on his request for a lump-sum settlement of benefits claim

was sufficient).

Once the employee establishes the necessary causal connection between his or

her claim for workers’ compensation benefits (or participation in other protected activity)

and the adverse employment action made the basis of the workers’ comp retaliation suit, the

burden shifts to the employer to rebut the alleged discrimination. The employer must show

that there was a legitimate reason for the discharge or other adverse action, which will be

determined on a case-by-case basis. Continental Coffee Products Company v. Cazarez, 937

S.W. 2d 444 (Tex. 1996). Although the ultimate burden of persuasion is on the

plaintiff/employee, the employer must establish a legitimate, non-discriminatory reason for

the discharge or other adverse employment action or otherwise demonstrate that the

employee has failed to produce any evidence of retaliatory motive. Texas Division - Tranter,

Inc. v. Carrozza, 876 S.W.2d 312 (Tex. 1994). Essentially, the decision in Carrozza follows

the standard of proof developed by the federal courts in discrimination and retaliation suits

under Title VII of the Civil Rights Act of 1964. If the employer offers a legitimate business

reason for the discharge or other adverse employment action, then the plaintiff must show

that the employer’s explanation is merely a pretext. See Terry v. Southern Floral Company,

927 S.W.2d 254 (Tex. App. - Houston [1st Dist.] 1996, no writ).

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III. What Are The Evidentiary Issues?

A. Direct Evidence.

As is true in most cases involving claims of discrimination or retaliation, one

way in which a plaintiff can demonstrate a causal link between the employee’s actions and

the employer’s motive is to offer direct evidence of a discriminatory or retaliatory motive on

the part of the employer. Most often, that evidence comes in the form of negative comments

or actions by the plaintiff’s supervisors or the persons involved in the decision to terminate

or otherwise take adverse action against the plaintiff. Essentially, the plaintiff demonstrates

by those comments or actions that the employer had hostility toward the injured plaintiff in

particular or the workers’ compensation system in general. See, e.g., Chemical Express

Carriers v. Pina, 819 S.W.2d 585, 590 (Tex. App. - El Paso 1991, writ denied) (supervisor’s

comment that plaintiff would sue the company was direct evidence of discrimination); Van-

Tran Electric Corp. v. Thomas, 708 S.W.2d 527 (Tex. App. - Waco 1986, writ ref’d n.r.e.)

(company official telling employee he would make sure employee never got another job was

sufficient direct evidence). See, also, Munoz v. H&M Wholesale, Inc., 926 F.Supp. 596

(S.D. Tex. 1996) (causal link demonstrated by statement that employee was discharged

because the company feared he would re-injure his back and because he should have claimed

his back injury on his personal health insurance rather than filing a workers’ compensation

claim).

B. Circumstantial evidence.

In most workers’ comp retaliation cases, the causal link necessary to satisfy

the plaintiff’s burden of proof is established by circumstantial, rather than direct, evidence.

Usually, the employee attempts to prove that the employer had knowledge of the employee’s

injury and/or workers’ compensation claim before making a decision to discharge the

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employee or otherwise take adverse action against him or her. See, e.g., America West

Airlines, Inc. v. Tope, 935 S.W.2d 908, 912-913 (Tex. App. - El Paso 1996, no writ)

(negative attitude toward employee after learning of his injury and failing to follow company

disciplinary policy was sufficient circumstantial evidence of retaliatory motive). Evidence

that the stated reason for the discharge is false may also be relevant, albeit circumstantial,

evidence. Gorges Foodservice, Inc. v. Huerta, 964 S.W.2d 656, 665 (Tex. App. - Corpus

Christi 1997, no pet.). Likewise, sudden changes in an employee’s job performance

evaluations following a worker’s compensation claim have been found to be sufficient

circumstantial evidence of discriminatory motive. Castor v. Laredo Community College,

963 S.W.2d 783, 785 (Tex. App. - San Antonio 1998, no pet.). Finally, the timing of adverse

action against an employee in relation to the date of his or her injury or worker’s

compensation claim may be sufficient to establish a causal connection. Porterfield v. Galean

Hospital Corp., 948 S.W.2d 916 (Tex. App. - San Antonio 1997) (employee fired on the

Monday after compensible claim on the preceding Friday).

Circumstantial evidence has found to be insufficient to establish the necessary

causal link, if that evidence is based solely upon the injured employee’s subjective belief that

he was discharged because of his workers’ compensation claim. Texas Division - Tranter,

Inc. v. Carrozza, 876 S.W.2d 312, 314 (Tex. 1994); Terry v. Southern Floral Company, 927

S.W.2d 254 (Tex. App. - Houston [1st Dist.] 1996, no writ); see, also, Continental Coffee

Products Company v. Cazarez, 903 S.W.2d at 79. The timing of an employee’s discharge

can also work in the employer’s favor and may provide circumstantial evidence that an

employee’s workers’ compensation claim was not the reason for discharge. For example, in

Burfield v. Brown, Moore and Flint, Inc., 51 F.3d 583, 589 (5th Cir. 1995) (a 15-month

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interval between the filing of a workers’ compensation claim and the plaintiff’s discharge

was deemed to be probative evidence of a lack of retaliatory motive. Moreover, if an injured

plaintiff is no longer capable of performing the essential functions of his job due to his work-

related injury, he may be terminated by the employer without liability under Chapter 451.

Id. at 559.

C. Potential defenses.

A commonly-used defense in a workers’ comp retaliation claim is the

employer’s uniform application of a leave of absence policy or an attendance control policy.

While not an affirmative defense per se, a number of courts have accepted the uniform

application of such policies as persuasive evidence that the employer lacked the requisite

retaliatory or discriminatory animus, i.e. the employer’s reason for the discharge or adverse

action was based upon legitimate, non-discriminatory, business reasons. See, e.g.,

Swearingen v. Owens-Corning Fiberglass Corp., 968 F.2d 559 (5th Cir. 1992) (termination

as a result of two-year leave of absence policy upheld); Parham v. Carrier Corp., 9 F.3d 383

(5th Cir. 1993) (two-year leave of absence policy for both work and non-work-related injuries

was upheld); Texas Division - Tranter, Inc. v. Carrozza, 876 S.W.2d 312 (Tex. 1994) (three-

day “no call/no show” policy upheld); Palmer v. Miller Brewing Company, 852 S.W.2d 57

Tex. App. - Fort Worth 1993, writ den.) (termination due to excessive absenteeism policy

upheld).

As noted previously, a claim for discrimination or retaliation under Chapter

451 is governed by a two-year statute of limitations, which begins to run when the cause of

action accrues. Failure of the plaintiff to file suit within the two-year limitations period will

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subject the plaintiff’s claim to a limitations defense. Reeves v. Houston Lighting and Power

Company, 4 S.W.3d 374, 376 (Tex. App. - Houston [1st Dist.] 1999, pet. den.)

Some employers have successfully argued that §301 of the federal Labor

Management Relations Act (which provides a federal cause of action for the breach of a

collective bargaining agreement) may preempt an employee’s claim under Chapter 451 in

those situations in which the employee’s claim requires the interpretation of the applicable

collective bargaining agreement. Reece v. Houston Lighting and Power Company, 79 F.3d

485, 487 (5th Cir. 1996), cert. denied. 117 S.Ct. 171 (1996); see, also, Johnson v. Alcatel

Network Systems, Inc., 963 F.Supp. 599 (N.D. Tex. 1997). The mere existence of a “just

cause” provision in a collective bargaining agreement may not be sufficient, however, to

preempt a workers’ comp retaliation claim in all instances. If the employee’s claim is

independent of the collective bargaining agreement and does not require an interpretation of

the collective bargaining agreement, courts have held that there is no preemption of the

claim. International Union v. Johnson Controls, Inc., 786 S.W.2d 265 (Tex. 1990).

Courts have held that an employee is not required to exhaust an arbitration

remedy provided in a collective bargaining agreement before filing suit under Chapter 451.

International Union United Auto Aerospace and Agricultural Implement Workers Local 119

v. Johnson Controls, Inc., 813 S.W.2d 558 (Tex. App. - Dallas 1991, writ denied); Bonner v.

Fleming Companies, Inc., 734 S.W.2d 764, 765 (Tex. App. - Fort Worth 1987, writ denied).

However, exhaustion of administrative remedies may be required before suit is filed against

a governmental defendant. See, e.g., Wilmer-Hutchins Independent School District v.

Sullivan, 51 S.W.3d 293, 294 (Tex. 2001).

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As noted previously, sovereign immunity may provide a defense to a claim

under Chapter 451. City of LaPorte v. Barfield, 898 S.W.2d 288 (Tex. 1995) (sovereign

immunity as to municipal governments waived); Harrison County v. Louvier, 956 S.W.2d

106 (Tex. App. - Houston [14th Dist.] 1997) (no waiver of sovereign immunity with respect

to claims against counties for pre-1991 injuries). NOTE: With respect to retaliatory

discharge actions against counties concerning injuries that occurred in 1991 or later, the

claimant must present the claim to the county commissioners’ court before filing suit against

the county, and the county is entitled to have the suit abated (but not dismissed) if the

claimant fails to meet the claim presentation requirement. County of Bexar v. Garcia, 974

S.W.2d 107, 109 (Tex. App. - San Antonio 1998, no pet.). Also, as noted previously, state

agencies may be sued for retaliatory discharge, but damages in such a suit are subject to the

damages caps in the Texas Tort Claims Act. Kerrville State Hospital v. Fernandez, 28

S.W.3d 1, 10 (Tex. 2000), and the defense of official immunity is available only to a

governmental employee sued in his individual capacity. Battin v. Samaniego, 23 S.W.3d

183, 187 (Tex. App. - El Paso, pet. den.)

Finally, although not a defense or complete bar to the filing of a lawsuit, the

doctrine of “after-acquired evidence” may limit the scope of a plaintiff’s recovery in a

Chapter 451 action. The after-acquired evidence doctrine has been adopted in Texas as a

limitation on an employee’s recovery in a retaliatory discharge claim if the employer

establishes that, after the employee was fired, the employer discovered that the employee had

engaged in serious misconduct which would have served as a legitimate basis for discharge

(if the misconduct had been known at the time of the discharge). In such circumstances, the

court may not order reinstatement as a remedy and the employee may not recover actual

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damages for the period after the employer discovered the existence of facts which would

have justified the employee’s termination (i.e. the employee will be entitled to claim back

pay only from the date of the unlawful discharge to the date that the employer discovered the

employee’s misconduct). Trico Technologies Corp. v. Montiel, 949 S.W.2d 308, 312 (Tex.

1997).

IV. What Are The Potential Damages And Remedies?

A. Actual damages.

Section 451.002(b) provides that a successful plaintiff may be entitled to

reinstatement and the payment of “reasonable damages.” A successful plaintiff may be

entitled to recover actual damages, even if reinstatement is not sought as a remedy.

Pacesetter Corp. v. Barrickman, 885 S.W.2d 256, 263 (Tex. App. - Tyler 1994, n.w.h.). In

addition, if reinstatement is awarded, such relief may be inconsistent with an award of future

wage damages for the same period of time--requiring the plaintiff to make an election of

remedies to avoid a double recovery. Martin v. Texas Dental Plans, Inc., 948 S.W.2d 799

(Tex. App. - San Antonio 1997). An employee who seeks reinstatement has the burden of

proving that he or she is physically capable of performing the duties of his or her former job.

Parham v. Carrier Corp., 9 F.3d 383, 389 (5th Cir. 1993). An employee’s subjective belief

or statements that he or she is able to return to work are not sufficient to meet this burden of

proof. Schrader v. Artco Bell Corp., 579 S.W.2d 534 (Tex. App. - Tyler 1979, writ ref’d

n.r.e.). Actual damages include lost wages and benefits (past and future) as measured by the

amount of money which the employee would have earned (or would be expected to earn in

the future) if the employee had not been discharged or discriminated against in violation of

the statute. See Stevens v. National Education Centers, Inc., 990 S.W.2d 374, 378 (Tex.

App. - Houston [14th Dist.] 1999, pet. den.). However, an employee may not be permitted to

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recover damages for an injury for which the employee already has received workers’

compensation benefits. Conex Intern. Corp. v. Cox, 18 S.W.3d 323, 325 (Tex. App. -

Beaumont 2000, pet. den.)

In addition to being entitled to recover out-of-pocket and future monetary

losses, a successful plaintiff in a Chapter 451 suit may be entitled to recover mental anguish

damages upon proof that the plaintiff has experienced a high degree of mental pain and

distress (i.e. more than mere disappointment, anger, resentment, embarrassment, etc.).

Trevino v. Southwestern Bell Telephone Company, 582 S.W.2d 582 (Tex. App. - Corpus

Christi 1979); see, also, Texas Health Enters., Inc. v. Kirkgard, 882 S.W.2d 630, 634 (Tex.

App. - Beaumont 1994, writ denied). The determination of the amount of mental anguish

damages is left to the broad discretion of the jury. Worsham Steel Company v. Arias, 831

S.W.2d 81, 85 (Tex. App. - El Paso 1992, no writ); see, also, Paragon Hotel Corp. v.

Ramirez, 783 S.W.2d 654 (Tex. App. - El Paso 1989, writ denied) ($100,000 jury award

upheld where plaintiff was bedridden at the time of termination, plaintiff’s wife was ill and

pregnant at the time, plaintiff had severe financial stresses at the time, plaintiff had no other

source of income, all of which ultimately led to a break-up of plaintiff’s marriage).

B. Exemplary damages.

Exemplary damages are recoverable in a wrongful discharge suit under

Chapter 451. Azar Nut Company v. Caille, 734 S.W.2d 667, 669 (Tex. 1987). However, a

plaintiff may not recover exemplary damages if he or she fails to prove actual damages.

Martin v. Texas Dental Plans, Inc., 948 S.W.2d 799 (Tex. App. - San Antonio 1997).

Exemplary damages are available only if the employer acted with actual malice. Continental

Coffee Products v. Cazarez, 937 S.W.2d 444, 452 (Tex. 1996). The plaintiff also must show

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that his or her employer had animosity toward the plaintiff personally or desired to injure the

plaintiff; proof that the termination was merely wrongful is insufficient to establish malice.

C&D Robotics, Inc. v. Mann, 47 S.W.3d 194, 201 (Tex. App. - Texarkana 2001, no writ).

Only egregious violations of the law will support an award of exemplary damages. Stevens

v. National Education Centers, Inc., 990 S.W.2d 374, 377 (Tex. App. - Houston [14th Dist.]

1999, pet. den.)

C. Injunctive relief.

Section 451.003 provides that a court may restrain, for cause shown, a

violation of Section 451.001. Although Section 451.003 refers to a district court’s power to

restrain, by injunction, violations of Section 451.001, county courts have been held to have

concurrent subject matter jurisdiction with the district courts over workers’ compensation

retalation claims. Continental Coffee Products Company v. Cazarez, 937 S.W.2d 444 (Tex.

1996).

D. Costs and attorneys’ fees.

Absent a specific statutory authorization or an agreement between the parties

for such a recovery, attorneys’ fees are not considered “reasonable damages suffered by an

employee” and, thus, are not recoverable in a workers’ comp retaliation claim. Holland v.

Wal-Mart Stores, Inc., 1 S.W.3d 91 (Tex. 1999).

V. How Can Retaliation Claims Be Avoided?

A. Restricted duty policies.

So-called “light duty” policies can, if administered correctly, serve as a

valuable tool in limiting or preventing workers’ comp retaliation claims. Such policies can

demonstrate and employer’s willingness to accommodate an injured employee’s work-

related restrictions. Without the availability of such “light duty,” an employer’s only other

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option in many instances may be to layoff or discharge the injured employee, thereby setting

the stage for an employee to claim that his or her workers’ compensation claim was the

reason for the layoff or discharge. If employer does establish a “light duty” policy, the

employer should create the light duty position for a limited amount of time and should

inform the returning employee that the light duty assignment is temporary in nature. In

determining the extent to which such light duty positions will be made available, the

employer should obtain input from the injured employee’s doctor regarding whether or not

the employee’s physical limitations will permit the employee to perform the essential

functions of the light duty position. Upon return to work, the injured employee should be

monitored to determine whether or not he or she is able to satisfactorily perform the work

required and to determine whether or not the employee is attempting to work beyond the

restrictions imposed by the employee’s doctor. The employee’s supervisor should be

cautioned against asking the employee to exceed the agreed upon work restrictions and

further should be cautioned against making any negative comments about the employee’s

limited ability to work.

B. Attendance policies.

As noted previously, attendance policies and neutral leave of absence policies

can serve as a legitimtae non-discriminatory basis for discharge or taking other action

perceived by an employee as adverse. Texas Division - Tranter, Inc. v. Carrozza, 876

S.W.2d 312 (Tex. 1994). The key to utilizing such policies as a defense to a Chapter 451

claim is the uniform and neutral application of the policy, i.e. the policy should be applied

the same to all employees.

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The policy should make clear that if any employee does not return to work

within the maximum leave of absence, or if the employee fails to call in or show up for work

for a consecutive number of days, then the employee will be subject to automatic termination

from employment. The policy also should set forth the circumstances and requirements for

an employee’s return to work after a leave of absence, such as being required to submit to a

return-to-work physical examination after an extended leave of absence or being able to

return to the employee’s former job (even though the employee has been replaced during his

or her absence). The policy also should require periodic obligations on the part of the

employee to keep the employer informed of his or her status and expected dates of treatment

or return to work. Likewise, the policy also should provide a procedure whereby an

employee is required to submit a written request to extend a leave of absence if warranted or

necessitated by the circumstances. Finally, a leave of absence policy which affords an

employee the opportunity to reapply--if termination occurred under the leave of absence

policy while the employee was otherwise in good standing--tends to show that an employer

does not have animosity toward injured workers.

C. Documentation of performance problems.

Observed job performance deficiencies should be documented as they occur

and corrective action taken immediately thereafter. If an employer discharges an employee

because of a chronic performance or absenteeism problem shortly after an employee has filed

a claim for workers’ compensation, an inference may be created that the true motivation for

the employer’s action was workers’ comp retaliation. If an employer has become lax in

documenting and correcting performance or attendance problems prior to a workers’

compensation claim being filed, the employer may find it difficult if not impossible to

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terminate the offending employee after notice of a workers’ compensation claim has been

submitted. Being able to demonstrate that the employee’s job performance or attendance has

been deficient in various respects prior to the employee’s workers’ compensation claim may

prove to be the key evidence in a workers’ comp retaliation case.

It is necessary, when documenting workers’ compensation claims, that all

related records be kept separate from an employee’s personnel file. The employee’s

supervisor should not be involved in administering the employee’s workers’ compensation

claim, although it is advisable to notify the supervisor that the claim exists (to prevent the

supervisor from being tempted to make negative comments about the employee’s claim).

Likewise, the supervisor’s compensation should not be dependent upon such cost-saving

measures as the reduction of on-the-job injuries. Similarly, supervisors should be instructed

not to engage in their own independent investigations of the employee’s worker’s

compensation claim or to offer opinions to others regarding the bona fides of the employee’s

claim. Such circumstantial evidence often forms the basis of an employee’s workers’ comp

retaliation claim and sometimes can be difficult to rebut.

YOU’VE BEEN SUED FOR WORKERS’ COMPRETALIATION-- NOW WHAT?

by

Gary L. IngramJACKSON WALKER L.L.P.901 Main Street, Suite 6000

Dallas, Texas 75202(214) 953-6104

and

JACKSON WALKER L.L.P.301 Commerce Street, Suite 2400

Fort Worth, Texas 76102(817) 334-7245

gingram@jw.com

c. 2002