On December 4, 2015, the Texas Supreme Court vacated a jury verdict in favor of a former employee who had alleged workers’ compensation retaliation, rendering judgment in favor of the employer and finding that the employee had not presented evidence that his termination had resulted from anything other than the uniform enforcement of a neutral absence control policy. The court found that plaintiff Jorge Melendez had failed to present any evidence to support his allegations that the absence policy of his former employer, Kings Aire, had not been uniformly enforced, that his discharge had not been required by such uniform enforcement, or that Kings Aire’s stated reason for discharging Melendez was false. Accordingly, the evidence was legally insufficient to support the jury’s verdict. Kingsaire, Inc. d/b/a Kings Aire, Inc. v. Melendez, No. 14-006 (December 4, 2015).
Melendez sustained an on-the-job injury on July 2, 2009. Kings Aire placed Melendez on leave pursuant to the Family and Medical Leave Act (FMLA) beginning on July 3, 2009. Melendez’s 12 weeks of FMLA leave expired on September 24, 2009, and as of that date, he had not been released to return to work. Kings Aire notified Melendez on September 28, 2009, that he had exhausted his FMLA leave and that his employment had been terminated on September 25, 2009, pursuant to the company’s absence control policy.
Section 451.001(1) of the Texas Labor Code provides that,
A person may not discharge or in any other manner discriminate against an employee because the employee has:
(1) filed a workers’ compensation claim in good faith.
Under Texas Supreme Court precedent (detailed in a 1996 case), the Kingsaire court noted that in order to establish a claim of retaliation, a plaintiff must show that the “employer’s prohibited action ‘would not have occurred when it did’ absent the employee’s protected conduct.”
While a plaintiff may generally rely on circumstantial evidence to prove unlawful motive, such circumstantial evidence is largely “immaterial” if the plaintiff’s discharge was required by the uniform enforcement of a neutral absence control policy. In such a case, an employer should prevail even if there is evidence that it pressured managers to minimize workers’ compensation claims.
Melendez’s Discharge and Kings Aire’s Absence Policy
Kings Aire discharged Melendez pursuant to the following policy:
A leave of absence may be granted for any reason acceptable to Kings Aire or required by law…. Except as discussed below or required by law, a leave generally may not exceed three months, and an employee who fails to return to work within three months of the leave of absence will be terminated.
Kings Aire presented evidence that it discharged four other employees pursuant to this policy, two of whom, like Melendez, had been out due to workers’ compensation injuries, and two of whom had been on leave due to personal illnesses unrelated to on-the-job injuries. Kings Aire also presented evidence that several employees suffered work-related injuries, filed workers’ compensation claims, and returned to work without incident because they were able to return in 12 weeks or sooner.
In response, Melendez cited Kings Aire’s FMLA policy, which provided that an employee would be discharged if he or she failed to provide a medical certification of fitness within 15 days after the conclusion of the leave. Melendez was not afforded this grace period, he said, and so his discharge the day after his leave expired was inconsistent with Kings Aire’s own policy. Kings Aire disputed this interpretation, arguing that the FMLA policy had to be read in conjunction with the company’s absence control policy, under which employees received the 15-day grace period only if they had not yet exhausted 12 weeks of leave.
“[E]ven assuming reasonable people could disagree about the policy’s meaning,” the court wrote, “the plaintiff made no showing that it was applied inconsistently and thus provided no evidence that the stated reason for termination was false.” Thus, the court reasoned,
Barring unusual circumstances, when an employer terminates an employee consistent with the employer’s uniform enforcement of its leave policy, even when an alternative interpretation of the policy would not require termination, that uniform enforcement is no evidence that an employee’s termination “would not have occurred when it did but for the employee’s assertion of a compensation claim or other conduct protected by section 451.001.”
The lesson for Texas employers is that their policies must clearly state the outer limit on leaves, and they must be vigilant to enforce that limit in all cases. Any evidence of exceptions being made to a leave policy will destroy the effectiveness of the defense and may even provide factual support to the plaintiff’s claim of retaliation. As the Texas Supreme Court noted in Melendez, had Kings Aire allowed Melendez the 15-day grace period, it would have been a departure from Kings Aire’s uniform enforcement of its absence control policy.
To be sure, there is a tension in the law that can prove challenging for employers that must also be mindful of their duty to provide reasonable accommodation under the Americans with Disabilities Act (ADA). The U.S. Equal Employment Opportunity Commission (EEOC) has taken the position that inflexible leave-of-absence policies may violate the ADA, as the granting of leave may, in some instances, constitute a reasonable accommodation.
Consequently, any absence control policy should include language to the effect of: “If the employee is unable to return to work at the end of the maximum leave period, his or her employment will be terminated if it is determined that the employee cannot perform the essential functions of his or her job with or without reasonable accommodation.” This determination should be made only after engaging in the interactive process to satisfy the EEOC’s interpretation of the ADA’s accommodation obligation.