author: BILL VANCE, Justice. TOM GRAY Justice,

text:
    Tommy JENKINS, Appellant, v. GUARDIAN INDUSTRIES CORP. and Charles Hicks, Appellees.
    No. 10-99-028-CV.
    Court of Appeals of Texas, Waco.
    March 22, 2000.

      Amy Grubbs Thomas, Mexia, for appellant.
    Wesley M. Hightower, Karen A. War-dell, Fort Worth, for appellee.
    Before Chief Justice DAVIS, Justice VANCE, and Justice GRAY.
   OPINION

BILL VANCE, Justice.

Tommy Jenkins (Jenkins) sued Guardian Industries Corp. (Guardian), his former employer, and Charles Hicks (Hicks), his former supervisor, for -wrongful termination. Summary Judgment was granted in favor of both Guardian and Hicks. Jenkins appeals, asserting that genuine issues of material fact exist as to (1) whether he was terminated in retaliation for filing a workers’ compensation claim and (2) whether his termination was in violation of the Texas Commission on Human Rights Act (TCHRA). See Tex. Lab.Code Ann. §§ 21.001-506, 451.001-.008 (Vernon 1996 & Supp.1999). We will affirm the summary judgment as to Hicks, reverse it on the retaliation and discrimination claims against Guardian, sever the claims against Guardian, and remand the latter for a trial on the merits.

FACTS

Jenkins was employed by Guardian in 1984 at its glass manufacturing plant in Corsicana. On January 25, 1993, Jenkins injured his knee while working and filed a workers’ compensation claim. Jenkins continued on “light duty” through March of 1993, when he had surgery. From March of 1993 until June of 1994, Jenkins did not work at all and received medical and indemnity benefits from Guardian’s workers’ compensation carrier. His workers’ compensation benefits ceased after sixteen months and, because the long-term disability insurance carrier determined that Jenkins was not totally disabled from working in all occupations, his long-term disability benefits also ceased on August 30, 1994.

In a letter dated August 10, Guardian notified Jenkins that his benefits would cease on August 30 and also informed him that he could continue his health insurance coverage at his own expense for an additional 18 months. On August 18, Jenkins’ doctor signed a release stating that he could “return to full duties.” Jenkins returned to Guardian on August 30 with the release and stated that he was ready to return to work, although he could not bend his knee and, therefore, his abilities were limited. He admitted that his doctor did not really believe he was ready to return to work, but signed the release because he asked for it. Guardian conditionally offered Jenkins a position on the “raw glass production line,” as this was the “only job available.” Jenkins attempted to perform a “return-to-work physical” which tested whether Jenkins could perform the position offered, but he could not pass it. Jenkins indicated that he believed he could perform one of the jobs “in the warehouse,” but he was not offered any position other than the one on the production line. On September 30, Guardian notified Jenkins in writing that their employment relationship was terminated.

STANDARD OF REVIEW

The summary judgment movant bears the burden to prove that no genuine issue of material fact exists and that it is entitled to summary judgment as a matter of law. Tex.R. Civ. P. 166a(c); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex.1985); Delta Air Lines, Inc. v. Norris, 949 S.W.2d 422, 425 (Tex.App.— Waco 1997, writ denied). A defendant-movant must conclusively negate at least one of the elements of the non-movant’s cause of action or conclusively establish every element of an affirmative defense. U.S. Fire Ins. Co. v. Williams, 955 S.W.2d 267, 268 (Tex.1997).

When determining whether a material fact issue exists, we must accept as true all evidence favorable to the non-movant. Nixon, 690 S.W.2d at 548-49; Delta Air Lines, Inc., 949 S.W.2d at 425. We must also resolve all doubts and indulge every reasonable inference in favor of the non-movant. Nixon, 690 S.W.2d at 549; Delta Air Lines, Inc., 949 S.W.2d at 425.

Although some jurisdictions place a burden on the non-movant to present evidence in support of the non-mov-ant’s claim or defense, “we never shift the burden of proof to the non-movant unless and until the movant has ‘establish[ed] his entitlement to a summary judgment on the issues expressly presented to the trial court by conclusively proving all essential elements of his cause of action or defense as a matter of law.’ ” State v. Durham, 860 S.W.2d 63, 68 (Tex.1993) (citing Casso v. Brand, 776 S.W.2d 551 (Tex.1989), quoting City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979)). Thus, when necessary to establish a fact issue, the non-movant must expressly present to the trial court its reasons to avoid summary judgment, and present summary judgment proof. Westland Oil Dev. Corp. v. Gulf Oil Corp., 637 S.W.2d 903, 907 (Tex.1982). A summary judgment may not, however, be based on a weakness of the non-movant’s pleading or proof unless it establishes the absence of a right of action or an insurmountable bar to recovery. Durham, 860 S.W.2d at 68 (citing Swilley v. Hughes, 488 S.W.2d 64, 66-67 (Tex.1972)).

As we will see, because a trial of claims such as these involves shifting burdens of production of evidence, analysis of such claims in the summary judgment context becomes a more complex matter.

RETALIATION CLAIMS

Sections 451.001-.003 of the Texas Labor Code regulate what constitutes a wrongful termination and what must be proven to establish that the termination was in violation of the Workers’ Compensation Act. Tex. Lab.Code Ann. §§ 451.001-.003. They provide:

§ 451.001. Discrimination Against Employees Prohibited

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;
(2) hired a lawyer to represent the employee in a claim;
(3) instituted or caused to be instituted in good faith a proceeding under Subtitle A; or
(4) testified or is about to testify in a proceeding under Subtitle A.

§ 451.002. Remedies; Burden of Proof

(a) A person who violates Section 451.001 is liable for reasonable damages incurred by the employee as a result of the violation.
(b) An employee discharged in violation of Section 451.001 is entitled to reinstatement in the former position of employment.
(c) The burden of proof in a proceeding under this section is on the employee.

§ 451.003. Injunction

A district court may restrain, for cause shown, a violation of Section 451.001.

Id.

Section 451.001 is a statutory exception to the Texas common-law doctrine of employment-at-will. Terry v. Southern Floral Co., 927 S.W.2d 254, 256 (Tex. App. — Houston [1st Dist.] 1996, no writ). The statute is designed to protect employees who are entitled to workers’ compensation benefits from being discharged because they take steps to collect those benefits. Id.

At a trial to recover for damages arising from retaliatory discharge, an employee must prove that “but for” his filing of a workers’ compensation claim, the discharge would not have occurred when it did. Trico Technologies Corp. v. Montiel, 949 S.W.2d 308, 312 (Tex.1997); Continental Coffee Products. Co. v. Cazarez, 937 S.W.2d 444, 450-51 (Tex.1996). The Supreme Court has recognized factors which, if proven by the plaintiff, are considered circumstantial evidence of this causal link. Continental Coffee, 937 S.W.2d at 450-51. These include: (1) knowledge of the compensation claim by those making the decision on termination; (2) expression of a negative attitude toward the employee’s injured condition; (3) failure to adhere to established company policies; (4) discriminatory treatment in comparison to similarly situated employees; and (5) evidence that the stated reason for the discharge was false. Continental Coffee Products. Co. v. Cazarez, 903 S.W.2d 70, 77 (Tex.App. — -Houston [14th Dist.] 1995), aff'd in part- and rev’d in part on other grounds, 937 S.W.2d 444 (Tex.1996); Palmer v. Miller Brewing Co., 852 S.W.2d 57, 61 (Tex.App. — Fort Worth 1993, writ denied); Paragon Hotel Corp. v. Ramirez, 783 S.W.2d 654, 658 (Tex.App. — El Paso 1989, writ denied). The workers’ compensation claim need not be the sole cause of the termination. Continental Coffee, 937 S.W.2d at 450-51; Terry, 927 S.W.2d at 257 (filing the claim was at least a determining factor in the discharge); Department of Human Services v. Hinds, 904 S.W.2d 629, 635-36 (Tex.1995) (the standard of causation in whistleblower and similar cases should be used in employment discrimination cases, i.e., no requirement that the protected conduct of the employee be the sole cause of the discrimination); see also Gorges Foodservice, Inc. v. Huerta, 964 S.W.2d 656, 667 (Tex.App. — Corpus Christi 1998, no pet.).

Once a link between filing the claim and the discharge is established, it is the employer’s burden to rebut the alleged retaliation by showing there was a legitimate reason for the discharge. Terry, 927 S.W.2d at 257. Thereafter, the burden shifts back to the employee to produce controverting evidence of a retaliative motive. See id. The causal conneetion-retal-iative motive may be established by either direct or circumstantial evidence. Texas Division-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 314 (Tex.1994) (per curiam) (motive); Terry, 927 S.W.2d at 257 (causal connection). The employee’s subjective beliefs are, however, no more than conclusions. Texas Division-Tranter, 876 S.W.2d at 314.

DISCRIMINATION CLAIMS

The Texas Commission on Human Rights Act (TCHRA) is codified in chapter 21 of the Labor Code. Tex. Lab.Code Ann. §§ 21.001-405. The TCHRA prohibits an employer from discriminating against an individual with respect to compensation, or the terms, conditions, or privileges of employment because of race, color, disability, religion, sex, national origin, or age. Id. § 21.051. One of the purposes of the TCHRA is the correlation of federal and state law in the area of employment discrimination. See Gold v. Exxon Corp., 960 S.W.2d 378, 380-81 (Tex.App. — Houston [14th Dist.] 1998, no pet.); Rios v. Texas Commerce Bancshares, Inc., 930 S.W.2d 809, 818-19 (Tex.App. — Corpus Christi 1996, writ denied); Farrington v. Sysco Food Servs., Inc., 865 S.W.2d 247, 251 (Tex.App. — Houston [1st Dist.] 1993, writ denied). The Texas Supreme Court has directed Texas courts to seek guidance from federal interpretations of Title VII of the Civil Rights Act of 1964 when construing the TCHRA. See Speer v. Presbyterian Children’s Home & Serv. Agency, 847 S.W.2d 227, 232 (Tex.1993). Accordingly, we may look to federal case law interpreting Title VII in determining the allocation of burdens between the employer and employee when a discrimination claim is tried under the TCHRA. Rios, 930 S.W.2d at 818.

The burdens have been described as:

In order to show a prima facie case of employment discrimination, the plaintiff must show 1) that he was a member of a protected class, 2) that he suffered an adverse employment action, and 3) that non-protected class employees were not treated similarly. Once the plaintiff has established a prima facie case, the burden of production shifts to the employer to articulate legitimate, nondiscriminatory reasons for any allegedly unequal treatment. If legitimate nondiscriminatory reasons are established by the employer, the burden then shifts back to the plaintiff to prove that the employer’s articulated reasons are a pretext for unlawful discrimination. Even though the burden of production shifts, the burden of persuasion remains continuously with the plaintiff.

Id. (citations omitted).

GUARDIAN’S MOTION FOR SUMMARY JUDGMENT

Guardian’s motion for summary judgment was supported by three exhibits: (1) Charles Hicks’ affidavit and its attachments; (2) Jenkins’ deposition and its attachments; and (3) business records of Dr. Kal Schwarts. With respect to the issues now on appeal, the motion asserted three grounds: (1) Hicks could not be held individually hable; (2) Guardian was entitled to summary judgment on the retaliation claim; and (3) it was entitled to summary judgment on the discrimination claim. These assertions were made under the traditional summary-judgment rule, whereby Guardian expressly undertook to negate one element of each of Jenkins’ claims. See U.S. Fire Ins. Co., 955 S.W.2d at 268.

Individual Liability

The first ground pointed out that Hicks’ affidavit established that he was the “Employee Relations Manager” for Guardian and, as such, is not an “employer” under the TCHRA. Citing Stoker v. Furr’s Inc., 813 S.W.2d 719 (Tex.App. — El Paso 1991, writ denied), Hicks urged that because he was not Jenkins’ employer, neither the retaliation claim nor the discrimination claim could be maintained against him.

Retaliation Claim

Concerning the retaliation claim, Guardian first asserted that Jenkins had “not put forth evidence, circumstantial or direct, of [a] retaliatory motive” and that Jenkins had no evidence of a causal link between his filing of the workers’ compensation claim and his discharge. The motion does not urge that Guardian’s summary judgment evidence conclusively negates the causal link.

Guardian next asserts that its reason for discharging Jenkins was legitimate. In this connection, it urges that an employer has the right to terminate an employee after an on-the-job injury if, due to the nature of that injury, the employee can no longer perform the essential functions of his job. Furthermore, it says that it did not have to create a new position or fire other employees to accommodate Jenkins. The summary judgment evidence which, it says, supports this assertion includes Dr. Schwarts’ records which state that Jenkins “does not meet [the] requirements for [return to work]” and Hicks’ affidavit stating that his decision to terminate Jenkins’ employment was based on “his inability to perform the essential job functions of the c-crew lower line position I conditionally offered to him as he was insisting upon an immediate decision regarding his work status.”

Discrimination Claim

Guardian attempts to defeat Jenkins’ discrimination claim by showing that he could not perform the essential functions of the only job open when he wanted to return to work, ie., in the glass production area. It points to Jenkins’ deposition as admitting that he could not perform those functions at the time he wanted to return and to Dr. Schwarts’ medical records as confirming that fact.

It next asserted that Jenkins had produced no evidence that he could perform that job with reasonable accommodation. Finally, it asserted that the decision to terminate his employment was not based solely on his disability.

JENKINS’ RESPONSE

Jenkins’ response to Guardian’s motion urged that the summary judgment evidence created fact issues concerning (a) a retaliatory motive for his discharge and (b) whether Guardian could have “reasonably accommodated” his continued employment. The summary judgment evidence included his own affidavit, letters and statements from various Guardian employees, Hicks’ deposition testimony, Guardian’s answers to requests for admission and interrogatories, and affidavits from his attorney and a former co-worker.

Jenkins pointed out that, on the retaliation claim, he would not have to prove that his discharge resulted solely from his filing the compensation claim and he could establish a “causal connection” using circumstantial evidence and reasonable inferences from the evidence. On the discrimination claim, Jenkins urged that Guardian could not legally discharge him if he was “potentially able to do the job in question.” He asserted that he could, with reasonable accommodation, perform the essential functions of a position in the warehouse at Guardian. “Reasonable accommodation” he says, would have included “job-restructuring, part-time, split shifts or modified work schedules, or reassignment to an open position.” He claimed that the summary judgment evidence shows that he and others had worked “light duty” at Guardian, that temporary workers were occupying some positions that he could fill, and that he had vacation time available that he could use until a position became available.

GUARDIAN’S REPLY TO JENKINS’ RESPONSE

Guardian’s reply to Jenkins’ response first reurged its position on Hicks’ individual liability. On the retaliation claim, it urged that even if Jenkins’ summary judgment evidence asserted a fact issue on retaliatory motive, there was no proof of causation, ie., that he would not have been terminated “but for” his filing the compensation claim. In essence, it contends that the termination due to his inability to perform the duties of the job eliminates his claim for retaliation.

On the discrimination claim, the reply asserts: “It is undisputed that Plaintiff could not perform the essential function of any job at the Corsicana facility.” It then asserts that Jenkins did not produce summary judgment evidence that would create a fact issue concerning reasonable accommodation because none of the accommodations that he suggested were reasonable as a matter of law.

Having stated the summary judgment motions and responses, we begin our consideration of the issues. After disposing of the question of Hick’s personal liability, we will consider Jenkins’ issues in reverse order because the disposition of the discrimination claim has a bearing on the outcome of the retaliation claim.

PERSONAL LIABILITY

Jenkins sued Charles Hicks, Guardian’s Employee Relations Manager, in his individual capacity. However, supervisors and managers are not liable in their individual capacities for alleged acts of discrimination under the TCHRA. DeMoranville v. Specialty Retailers, Inc., 909 S.W.2d 90 (Tex.App. — Houston [14th Dist.] 1995), rev’d on other grounds, 933 S.W.2d 490 (Tex.1996); Benavides v. Moore, 848 S.W.2d 190 (Tex.App. — Corpus Christi 1993, writ denied). Nor can a claim under the Workers’ Compensation Act be brought against one who is not an “employer.” Stoker, 813 S.W.2d at 721-24. Guardian employed both Hicks and Jenkins. Hicks is not an employer. Thus, summary judgment in favor of Hicks was proper on all grounds and will be affirmed.

JENKINS’ DISCRIMINATION CLAIM

Jenkins’ second issue contends that there are genuine issues of material fact concerning his claim of discrimination under the TCHRA. Specifically, he asserts that Guardian ignored its obligation to make a “reasonable accommodation” so that he could perform some job.

The initial question is how to apply the shifting burdens in the summary judgment context. Elements one and two — whether the plaintiff is a member of a protected class and whether he suffered an adverse employment action — are straightforward fact determinations that will be determined to be genuine fact issues or not depending on the summary judgment evidence. The third element — whether non-protected employees were treated differently — is where we consider the burden-shifting approach to be applicable in the context of an employer seeking a summary judgment on the plaintiff-employee’s discrimination claim.

The employer-movant may attempt to show that non-protected employees were treated similarly. If so, the issue may be joined when the employee produces summary judgment evidence that raises a fact issue about how various employees were treated. The employermovant may, however, with or without conceding that the plaintiff was treated differently, advance legitimate, nondiseriminatory reasons for the allegedly unequal treatment. If such a reason is advanced, then the employee may be called upon to produce summary judgment evidence that raises a fact issue about whether the employer’s articulated reasons are a pretext for unlawful discrimination. In either event, we must bear in mind that under our summary judgment practice, the burden of proof never shifts to the non-movant unless and until the movant has established its entitlement to a summary judgment on the issues expressly presented to the trial court. Durham, 860 S.W.2d at 68. With this in mind, we turn to the summary judgment motion and evidence.

When Guardian filed its motion for summary judgment Jenkins had not been called upon to adduce any evidence. Guardian’s summary judgment proof did not attempt to establish that non-protected employees were treated similarly. Instead, it adduced proof that it had a non-diseriminatory reason for terminating Jenkins’ employment, ie. that Jenkins was physically unable to perform the only job available. Assuming this to be so, we examine whether Jenkins met his burden of producing summary judgment evidence that raises a fact issue about whether Guardian’s stated reason for termination is a pretext.

Sections 21.051 and 21.105 of the TCHRA make it an unlawful employment practice for an employer to discharge a disabled person on the basis of a disability when the disability does not impair the individual’s ability to reasonably perform a job. Tex. Lab.Code Ann. §§ 21.051, 21.105 (Vernon 1996); Austin State Hosp. v. Kitchen, 903 S.W.2d 83, 88 (Tex.App.- — Austin 1995, no writ). Thus, the issue is whether Jenkins’ physical condition impairs his ability to reasonably perform a job. Tex. Lab.Code Ann. § 21.105. He may show that he can perform all the essential functions of a job or, by demonstrating that he could be “reasonably accommodated,” he may show that he can “reasonably perform a job.”

Jenkins filed an affidavit in an attempt to show that Guardian’s stated reason for termination is false. He states that, after his injury, he could do jobs “such as [his] old job in the warehouse,” but Guardian would not place him in those positions. Guardian offered him only a position which he could not perform and refused to “accommodate” him in a “light duty” position. He also offered evidence that Guardian had made the decision to terminate him prior to conducting a physical examination to see if he was able to perform the job.

Jenkins asserts that he is able to reasonably perform a job if Guardian will fulfill its obligation to make “reasonable accommodation.” The types of reasonable accommodation which he suggests include: 1) assigning him to light duty work; 2) assigning him to a position occupied by a temporary worker; or 3) allowing him to take vacation time or unpaid leave until a job that he could perform becomes available. In response, Guardian says that the summary judgment evidence shows that Jenkins could not perform any job at the plant, available or not, and that it had no duty to create a position which Jenkins could perform.

Considered in the light most favorable to Jenkins, the record shows that Guardian considered only whether Jenkins could perform the “lower-line” raw glass production position which was available at the time Jenkins wanted to return to work. It is undisputed that this is a hard-labor job. Guardian did not consider whether Jenkins could perform any of the jobs that were being filled by temporary workers. The evidence shows that temporary workers are paid considerably less than full-time Guardian employees and receive no benefits. Guardian said it did not consider placing Jenkins in one of those positions because it would not be “cost-effective.”

The evidence shows that jobs exist in the warehouse at Guardian which are considered “light duty.” In the past, Jenkins and other employees worked on these “light duty” jobs after injuries. Jenkins was not offered a light duty position in the warehouse, but Guardian contends that no such job was available at the time Jenkins wanted to return to work. Furthermore, Guardian asserts that the regular practice is to rotate employees through the warehouse jobs in an effort to minimize the monotony of the job and thereby reduce the risk of injury. Thus, it says, putting Jenkins in one position when he could not perform all the others would have placed a burden on the rotation schedule. However, there is also some evidence that employees were allowed from time to time to refrain from rotating until they were able to perform some of the other jobs. This option was not provided to Jenkins.

The evidence also shows that other injured employees were put on leave to retain their employee status and not lose their accrued benefits until a job which they could perform became available. This option was not given to Jenkins.

Guardian also asserts the “undue hardship” defense provided by section 21.260 of the TCHRA. Id. § 21.260. At a trial, it would bear the burden of proof on its defense. Austin State Hosp., 903 S.W.2d at 91. In the summary judgment context, it bears the burden of conclusively establishing every element of this affirmative defense. See Williams, 955 S.W.2d at 268. Considered in the light most favorable to Jenkins, the summary judgment evidence does not conclusively establish that Guardian would have suffered an undue hardship in allowing Jenkins to take advantage of one of the alternative jobs raised by the summary judgment evidence until he was able to fully perform other jobs. See Austin State Hosp., 903 S.W.2d at 92.

Giving Jenkins the benefit of all inferences and construing the evidence in the light most favorable to him, we find that genuine issues of material fact exist about whether, with reasonable accommodation, Jenkins could have reasonably performed the essential functions of an available job at Guardian. Thus, we find fact issues about whether Jenkins was fired in violation of the TCHRA. We sustain issue two.

JENKINS’ RETALIATION CLAIM

Jenkins’ first issue asserts that a genuine issue of material fact exists on his claim that he was terminated in retaliation for filing a workers’ compensation claim. Again, our initial inquiry in this issue is how to apply the shifting burdens in the summary judgment context. When Guardian filed its motion for summary judgment, Jenkins had not been called upon to produce any evidence concerning Guardian’s motive. Only after Guardian’s summary judgment evidence established a legitimate, non-discriminatory reason for the discharge would Jenkins be required to come forward with summary judgment evidence of a retaliatory motive. See Texas Division-Tranter, 876 S.W.2d at 313-14; Terry, 927 S.W.2d at 256.

Guardian asserts that Jenkins was fired because he cannot perform the only job which was available at the time he wanted to return to work. Thus, it says Jenkins cannot show that his termination would not have occurred but for the filing of a workers’ compensation claim. Its position is essentially that the legitimate reason it gave negates the causal connection between the filing of the claim and the discharge. Because Jenkins had not been called upon to produce evidence at that point, we will begin by assuming that pri-ma facie evidence of a causal link.exists. See Terry, 927 S.W.2d at 257. Thus, we address whether Guardian’s summary-judgment evidence successfully established that it had a legitimate reason to discharge Jenkins.

An employer is permitted to terminate an employee who sustains an on-the-job injury if that employee can no longer perform the essential functions of his job. Trevino v. Kent County, Texas, 936 S.W.2d 488, 493 (Tex.App. — Amarillo 1996, writ denied). It is undisputed that Jenkins could not pass a retum-to-work physical designed to test whether he could perform the essential functions of the particular job offered to him. Furthermore, more than eighteen months passed between Jenkins’ filing of the claim and his discharge. Although he had a release to work, Jenkins told Hicks and others at Guardian that his doctor really did not want him released to work. Jenkins’ treating physician stated that he did not believe Jenkins could perform activities consistent with his former job duties. For purposes of our review, we will assume that Jenkins was required to produce evidence to rebut Guardian’s reason for the discharge.

Thus we arrive at a consideration of whether Jenkins’ summary judgment evidence was sufficient to raise a fact issue about retaliatory motive. He asserts that there is at least circumstantial evidence sufficient to raise a triable issue as to his retaliation claim. As we have noted, circumstantial evidence may be sufficient to establish motive.

Citing the Continental Coffee factors, Jenkins asserts that the following tend to show a retaliatory motive:

1. His employer’s knowledge that he had filed a compensation claim is undisputed because it was involved in the claims process;
2. Hicks’ comment that Guardian had been “good to [Jenkins]” by paying his workers’ compensation benefits;
3. No hearing prior to his termination;
4. Guardian did not give Jenkins the option to be on leave without pay instead of terminating his employment;
5. Guardian’s mention of his COBRA rights in a letter dated August 10, which he says shows that Guardian’s stated reason for termination (inability to pass the return-to-work physical) is false because the return-to-work physical was given after August 10.

Continental Coffee, 937 S.W.2d at 444. He also points to the evidence that his supervisor, Henry Mayer, told other supervisors that Guardian intended to “get rid” of him.

Each of these facts is supported by summary judgment evidence. They are more than Jenkins’ subjective belief that his employer retaliated against him. The opinion in Continental Coffee focuses on the “causal link” rather than the question of whether the employer’s stated reason for firing the employee was false. The ultimate question is whether the evidence of a causal link is so strong as to justify a finding that the employer had a retaliatory motive. As we have stated, a retaliatory motive may be shown by circumstantial evidence. Texas Division-Tranter, 876 S.W.2d at 314. Thus, resolving all doubts and indulging every reasonable inference in Jenkins’ favor, we find that the summary judgment evidence raises fact issues about whether Guardian had a retaliatory motive and Jenkins was fired for filing the workers’ compensation claim. Our decision is reinforced by our earlier conclusion that genuine issues of material fact exist with respect to the discrimination claim. Thus, we reverse the summary judgment denying his retaliation claim. Issue one is sustained.

CONCLUSION

We affirm the summary judgment in favor of Charles Hicks on both of Jenkins’ claims. We reverse the summary judgment granted in favor of Guardian, sever the retaliation and discrimination claims against Guardian, and remand them for a trial on the merits.

Justice GRAY concurring and dissenting.

TOM GRAY Justice,

concurring and dissenting.

The summary judgment evidence establishes certain facts as undisputed. Jenkins worked for Guardian. He was hurt on the job. He was allowed to work on light duty in the warehouse until his first surgery. Under Guardian’s Health Plan Benefits, Jenkins’s employment was deemed terminated when he ceased active work in March 1993. However, his benefits continued under that plan because of his injury. He remained off work and filed for long term disability, which was approved. When he was notified that his long term disability had been approved he was also notified that because he was not totally disabled, those benefits were about to terminate and as a result, his health plan coverage would also terminate. After receiving this notice he returned to his doctor and wanted to be given a release to return to work, “full duties.” He obtained the release. Twelve days later he presented himself at Guardian and wanted to return to work. Guardian reviewed the situation and offered him the only job vacancy subject to his satisfactory completion of a return to work physical. He failed the physical. Having no position vacant that he could perform at that time, Guardian notified Jenkins that they could not return him to work with his current physical restrictions and that he should seek other employment.

Jenkins sued Guardian claiming: (1) that he was discriminated against because of his disability; and (2) that he was terminated in retaliation for having filed a workers compensation claim. Guardian’s response is that he cannot perform the essential functions of the only job available at the time the decision had to be made.

Guardian moved for summary judgment. The trial court granted it. We must decide if the summary judgment proof entitled Guardian to judgment as a matter of law. The majority holds that Jenkins’s controverting evidence raised fact questions that entitled him to a trial on the merits. Because I believe that Guardian’s summary judgment evidence entitled it to judgment as a matter of law, I respectfully dissent.

DISCRIMINATION BECAUSE OF A DISABILITY?

Jenkins has successfully confused the issues on the disability claim by questioning whether he can “reasonably perform a job if Guardian will fulfill its obligation to make ‘reasonable accommodation.’ The types of reasonable accommodation which he suggests include: 1) assigning him to light duty work; 2) assigning him to a position occupied by a temporary worker; or 3) allowing him to take vacation time or unpaid leave until a job that he could perform became available.” Jenkins v. Guardian Industries, Corp., et al., 16 S.W.3d 431, 440 (Tex.App. — Waco, 2000).

Assigning to Light Duty Work

The summary judgment evidence establishes that at times Guardian has temporarily accommodated employees by letting them work light duty. The summary judgment evidence also establishes that Guardian accommodated Jenkins in a similar manner from the time he was injured until the time of his surgery. What the summary judgment evidence also established is that Guardian has not made a permanent light duty position for any employee. The accommodation that Jenkins demands of Guardian is to create a permanent light duty position by altering its system of internal duty rotations, which Guardian has implemented for the safety of its workers. Additionally, the only light duty work in the rotation is in the warehouse and there was no vacant warehouse position at the time Jenkins wanted to be returned to work. Guardian is not required to create a job for Jenkins that he can perform. Foreman v. Babcock & Wilcox Co., 117 F.3d 800, 809 (5 th Cir.), cert. denied, 522 U.S. 1115, 118 S.Ct. 1050, 140 L.Ed.2d 113 (1998) (“An employer is not required to create ‘light duty’ jobs to accommodate.”); Turco v. Hoechst Celanese Chemical Group, Inc., 101 F.3d 1090, 1094 (5th Cir.1996); Champ v. Baltimore County, 884 F.Supp. 991 (D.Md.1995), aff'd, 91 F.3d 129 (4th Cir.1996) (no permanent light duty position required).

Replace a Temporary Worker

Jenkins contends that Guardian should fire a “temporary worker” in the warehouse to create a vacancy that he could then be given. First, Guardian does not have to face the dilemma of firing one worker, temporary or not, to create a position for Jenkins. Foreman, 117 F.3d at 809-810 (“For the accommodation of a reassignment to be reasonable, it is clear that a position must first exist and be vacant.”); White v. York Intern. Corp., 45 F.3d 357, 362 (10th Cir.1995) (“However, the ADA does not require an employer to promote a disabled employee as an accommodation, nor must an employer reassign the employee to an occupied position, nor must the employer create a new position to accommodate the disabled worker.”). To hold otherwise elevates Jenkins above his employee-at-will status to being entitled to displace another worker. Second, even if one of the temporary workers were fired to allow Jenkins an opening, it is undisputed that without permanently altering the job rotation and making the job a permanent light duty position, as discussed above, Jenkins’s disability would prevent him from being able to fulfill the essential functions of the position.

Vacation Time or Unpaid Leave

When Jenkins arrived at Guardian to return to work he presented Guardian with no alternative other than putting him to work. He did not request that he be allowed to take his vacation time to await a possible opening before he was terminated. He did not request to be put on unpaid administrative leave to await a possible opening. He wanted to return to work immediately but was unable to perform the essential functions of the only job that was available at that time. Jenkins’s attempt to raise the “accommodation” only after he has filed suit, when it clearly was not an alternative at the time, should be summarily rejected.

In summary, as a matter of law, the accommodations suggested by Jenkins were not reasonable. The only summary judgment evidence was that there was no accommodation that could be made to allow Jenkins to be able to perform the only job available at the time the decision had to be made.

RETALIATION?

Jenkins relies on these reasons for both the discrimination claim and the retaliation claim. He also submits some additional circumstantial evidence in support of his retaliation claim. None of the evidence contradicts the fact that there is no job at Guardian for which Jenkins could perform the essential functions unless Guardian terminated a temporary worker and created a permanent light duty position in the warehouse specifically for him.

The principle case both parties and the majority rely upon is Continental Coffee Products Co. v. Cazarez, 937 S.W.2d 444 (Tex.1996). Cazarez presented a list of circumstantial evidence to prove the causal connection between the alleged retaliation and her termination. Jenkins and the majority list much of the same type circumstantial evidence to also establish the causal connection. Guardian has not contested Jenkins’s ability to produce some evidence of causal connection. However, Jenkins and the majority also attempt to use the same evidence to establish that the stated reason for discharge is false. This is not proper.

In Continental, the stated reason for firing Cazarez was for violation of the three-day rule (a rule which requires an employee to contact the employer to explain extended absences every three days). The court stated:

If 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 or other conduct protected by section 451.001. Thus, if Continental enforced the rule uniformly, and if Cazarez violated it, then Cazarez could not have been terminated in violation of the Anti-Retaliation Law.

Id. at 451.

According to Continental, Cazarez was terminated because she failed to call in to account for her absence on November 6, 7, and 8 and that she was thus properly fired on the 8th. However, Cazarez introduced evidence to establish that the stated reason for termination was false. She introduced evidence to establish she was fired on the 7th, before the 3 day rule was violated. The court stated; “Crediting Cazarez’s testimony, as we must, there is some evidence that she did not violate the three-day rule.” Id. at 451. This was the evidence Cazarez introduced to raise a fact question on whether the stated reason for termination was false. Evidence which does nothing more than show an improper motive does not raise a fact issue on whether the stated reason for discharge is false. It must be evidence which specifically raises a fact question on whether the reason for termination established by the summary judgment evidence is false. Id., see Texas Division-Tranter, Inc. v. Carrozza, 876 S.W.2d 812, 313-14 (Tex.1994).

Jenkins’s proffered evidence does not raise a fact issue on the essential element of his claim which Guardian refuted as a matter of law. There was no job available on the date of the employment decision that Jenkins could perform, and the only accommodations that Jenkins suggested were not reasonable accommodations because they would amount to firing an employee or worker and creating a permanent light duty position that did not currently exist. To avoid a pointless trial, the trial court granted Guardian the summary judgment to which it was entitled. I would affirm the summary judgment as to Guardian.

I concur in the summary judgment as to Charles Hicks for the reasons expressed by the majority.

      . The Texas Supreme Court's Continental Coffee opinion does not specifically approve the use of these factors. Rather, the Court notes that workers’ compensation-retaliatory discharge cases require proof similar to that required in Whistleblower Act cases, and refers to Texas Department of Human Services v. Hinds, 904 S.W.2d 629 (Tex.1995), in both contexts. Continental Coffee Products. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996). However, the Court noted that the intermediate court of appeals used these factors and did not disapprove. The opinion ultimately relied on these factors. See id. at 452 (evidence that employer’s explanation of termination was false and that employer had negative attitude toward employee's injured condition sufficient to support retaliatory discharge finding). Furthermore, other courts have applied these factors. See, e.g., Gorges Foodservice, Inc. v. Huerta, 964 S.W.2d 656, 665 (Tex.App. — Corpus Christi 1998, no pet.). Therefore, we will also rely on these factors.

      . A fourth assertion, based on the new "no evidence” summary judgment rule, was directed at Jenkins’ claim of intentional infliction of emotion distress. Tex.R. Civ. P. 166a(i). Jenkins dismissed the claim by amending his petition, the summary judgment merely denies all relief, and Jenkins does not assert an issue on appeal concerning this claim.

      . Jenkins’ response also cites Continental Coffee Products, which sets forth the employee's burden. 937 S.W.2d at 450.

      . Furthermore, Jenkins’ brief only addresses the summary judgment in favor of Guardian.

      . Although Jenkins had responded to Guardian’s earlier motion for summary judgment, we must view this amended motion as though it were Guardian’s initial motion for summary judgment.

      . There is some confusion in the record regarding exactly when Jenkins was terminated. Under the benefits plan, he was deemed terminated in March 1993; however, Guardian focused on the date they notified him they could not return him to work. Jenkins claims the decision had already been made when he received the benefits termination letter in early August 1994. At that time Jenkins was receiving disability benefits and had not re-tumed to work so there was apparently no question that he was not capable of performing the essential functions of his job. Otherwise, he would have already obtained a release and returned to work. For purposes of this evaluation, the critical time frame is from when Guardian knew he wanted to return to work until it was specifically determined that he could not perform the essential functions of the available job, and was so notified.

      . The court went on to discuss other evidence the Court of Appeals improperly relied upon because it was legally justified. Id. at 451-452.


source: Caselaw Access Project

author: DAVIS, Chief Justice. TOM GRAY, Justice,

license: Public Domain

text:
    Stanley J. PEACOCK, Appellant, v. TRAVELERS PROPERTY CASUALTY INSURANCE COMPANY, Appellee.
    Nos. 10-00-037-CV, 10-99-301-CV.
    Court of Appeals of Texas, Waco.
    March 29, 2000.

      Stanley J. Peacock, Farmersville, pro se.
    Brett A. Smith, Kenneth John Lambert, Fletcher & Springer, L.L.P., Dallas, for appellee.
    Before Chief Justice DAVIS Justice VANCE and GRAY.
   MEMORANDUM OPINION

DAVIS, Chief Justice.

Stanley Peacock filed suit pro se against Travelers Property Casualty Insurance Company (“Travelers”) in a Dallas County court. Peacock’s suit alleged breach of an insurance contract, DTPA violations, and unfair claims settlement practices. On Travelers’ motion, the trial court ordered that Peacock’s contract claim be tried separately from his extra-contractual claims. A jury returned a verdict favorable to Travelers on the contract claim. The court signed a judgment in accordance with the verdict on July 9, 1999. Peacock filed a notice of appeal from this interlocutory judgment with the County Clerk of Dallas County on August 9, following the denial of his motion for new trial.

On September 13, the Supreme Court ordered the transfer to this Court of the “next 25 cases ... filed in the Court of Appeals for the Fifth Court of Appeals District, Dallas, Texas, on or after September 1, 1999.” Transfer of Cases from Courts of Appeals, Mise. Docket No. 99-9151 (Tex. Sept. 13, 1999) (order transferring cases among intermediate appellate courts for docket equalization purposes); see also Tex. Gov’t Code Ann. § 73.001 (Vernon 1998). Pursuant to the Supreme Court’s order, the Dallas Court transferred Peacock’s case to this Court on October 1. We docketed Peacock’s case under cause number 10-99-301-CV.

The trial court signed a summary judgment in favor of Travelers on Peacock’s extra-contractual claims on November 18. Peacock filed a notice of appeal from the summary judgment with the county clerk on January 15, 2000, after the court denied his motion for new trial. See Tex.R.App. P. 25.1(a). In an effort to comply with Rule of Appellate Procedure 25.1(e), Peacock filed a copy of his notice of appeal with the Clerk of this Court because he deems his second appeal “an extension of the original” appeal. Id. 25.1(e). We docketed this appeal under cause number 10-00-037-CV.

Because Peacock’s “second appeal” arose after the Supreme Court’s transfer order and concerns a Dallas County judgment, we questioned our jurisdiction and advised the parties by letter dated February 18 that we may dismiss the appeal for want of jurisdiction if no response were filed showing grounds for continuing the appeal. Id. 42.3(a). Travelers responded with a motion to consolidate or dismiss the second appeal because Peacock’s original notice of appeal was premature and should be considered filed as of the date of the “final” judgment in the underlying cause, November 18. Id. 27.1(a). Peacock “is not protesting where this Appeal should be filed as long as he has enough time to prepare it.”

CAUSE NO. 10-99-301-CV

According to Rule of Appellate Procedure 27.1(a), in civil cases “a prematurely filed notice of appeal is effective and deemed filed on the day of, but after, the event that begins the period for perfecting the appeal.” Id. Applying this rule to Peacock’s first notice of appeal, we conclude that such notice of appeal was not effective or deemed to have been filed until November 18. Because the notice of appeal was not effectively filed until November 18, Peacock’s case was not among the “next 25 cases ... filed in the Court of Appeals for the Fifth Court of Appeals District, Dallas, Texas, on or after September 1, 1999,” which the Supreme Court ordered transferred to this Court.

Article V, section 6 of the Texas Constitution provides that the civil jurisdiction of this Court extends to “all cases of which the District Courts or County Courts have original or appellate jurisdiction, under such restrictions and regulations as may be prescribed by law.” Tex. Const, art. V, § 6. The legislature has prescribed that this Court has “appellate jurisdiction of all civil cases within its district.” Tex. Gov’t Code Ann. § 22.220(a) (Vernon 1988). The trial courts of Dallas County do not fall within the Tenth District. See id. § 2.201(f), (k) (Vernon 1988).

Because Peacock’s “first appeal” docketed in this Court under Cause No. 10-99-801-CV was not among the “next 25 cases ... filed in the Court of Appeals for the Fifth Court of Appeals District, Dallas, Texas, on or after September 1, 1999,” which the Supreme Court ordered transferred to this Court and did not arise from a trial court within the Tenth District, we do not have jurisdiction over such appeal.

CAUSE NO. 10-00-037-CV

Peacock filed his second notice of appeal with the county clerk on January 15. Thus, his “second appeal” was not among the “next 25 cases ... filed in the Court of Appeals for the Fifth Court of Appeals District, Dallas, Texas, on or after September 1, 1999,” which the Supreme Court ordered transferred to this Court, nor did it arise from a trial court within the Tenth District. Accordingly, we do not have jurisdiction over Peacock’s second appeal docketed in this Court under Cause No. 10-00-037-CV.

CONCLUSION

By filing his notices of appeal with the county clerk, Peacock may have invoked the appellate jurisdiction of the Fifth Court of Appeals. See Tex.R.App. P. 25.1(b); Tex. Gov’t Code Ann. § 22.201(f). Therefore, we shall promptly forward Peacock’s files to the Fifth Court of Appeals, so it can determine whether and how it wishes to proceed with Peacock’s case.

For these reasons, we dismiss Peacock’s appeals docketed in this Court under Cause Nos. 10-99-301-CV and 10-00-037-CV for want of jurisdiction.

Justice GRAY, concurring.

TOM GRAY, Justice,

concurring.

The legal analysis and conclusions of the majority opinion are correct and accordingly I concur. However, I cannot join the appeal to the Legislature to correct, repair or fix the system used to transfer cases among the courts of appeals for docket equalization and write this concurring opinion to explain. For the reasons stated in my concurring opinion in Simonek, we should not use this forum to call upon the Legislature to do anything. In re Simonek, 3 S.W.3d 285, 289 (Tex.App. — Waco 1999, no pet.) (Gray, J., concurring). It is not our place or privilege to use this office as a special forum from which to call for legislative action.

With these comments, I respectfully concur in the majority opinion.

      . The procedural quagmires present in this case demonstrate yet another of the flaws with the current docket-equalization system. See, e.g., McLendon v. Texas Dep’t of Pub. Safety, 985 S.W.2d 571, 576 n. 6 (Tex.App.— Waco 1998, pet. filed). As the dockets of the intermediate appellate courts in large metropolitan areas continue to burgeon, these flaws will continue to manifest themselves in new and increasingly significant ways. Accordingly, we call on the Legislature to give priority and attention to the task of developing and codifying a more permanent solution to the docket-equalization problem.


author: TOM GRAY, Justice.

text:
    Jimmy Odell LOMAX, Appellant, v. The STATE of Texas, Appellee.
    No. 10-98-101-CR.
    Court of Appeals of Texas, Waco.
    March 29, 2000.
    John E. Hawtrey, Bryan, for appellant.
    Ray Montgomery, Dist. Atty. Leon County, Centerville, Gina M. Debottis, Special Prosecution Unit, Huntsville, for appellee.
    Before Chief Justice DAVIS, Justice VANCE, and Justice GRAY.
   OPINION

TOM GRAY, Justice.

A man was convicted of sexually assaulting his step daughter. His former wife, the mother of the victim, taped a telephone conversation with the man. The tape ran out before the conversation ended. At trial, the former wife was allowed to testify about the unrecorded portion of the conversation. The man complains about the admissibility of the tape and the former wife’s ability to complete the conversation. He also complains about the trial court’s refusal to allow him to introduce character evidence of his former wife. We affirm the trial court’s judgment.

BACKGROUND

Jimmy Odell Lomax was charged with and convicted of the aggravated sexual assault of his step daughter, S.M.G. Denise, Lomax’s ex-wife and the mother of S.M.G., testified concerning S.M.G.’s outcry that Lomax had been engaging in sexual intercourse with her for many years. Denise also testified regarding a tape recording she made of a telephone conversation she had with Lomax following S.M.G.’s outcry. Denise initiated the telephone call, and on tape, Lomax admitted to trying to engage in sexual intercourse with S.M.G. on several occasions. The tape apparently ran out toward the end of the conversation. Lomax’s appeal centers around Denise’s testimony.

Tape RecoRding

In his first issue, Lomax primarily complains that the admission of his tape recorded conversation with Denise was prejudicial because he could not show the remainder of the conversation as allowed under Texas Rules of Evidence 106 and 107.

Lomax filed a motion to determine the admissibility of the tape on the morning of trial. He objected to the introduction of the tape because it was of poor quality and was not a complete recording of his conversation with Denise. He argued that if the tape was admitted, he should be entitled to introduce the whole conversation taped under the doctrine of “optional completeness.” Because the State wanted to discuss the tape during opening statements, the trial court held an admissibility hearing after the jury was impaneled and prior to opening. The trial court listened to the tape, reviewed a transcription of the recording and heard testimony of Denise, the maker of the tape. At the conclusion of the hearing, the trial court decided the tape was admissible.

Applicable Law

The standard of review for a trial court’s ruling under the rules of evidence is abuse of discretion. Angleton v. State, 971 S.W.2d 65, 67 (Tex.Crim.App.1998). Lo-max contends that the tape should not have been admitted because he could not show the complete conversation taped or conversation of the parties involved as per Rules 106 and 107 of the Texas Rules of Evidence. These rules are set out below as follows:

RULE 106. REMAINDER OF OR RELATED WRITINGS OR RECORDED STATEMENTS
When a writing or recorded statement or part thereof is introduced by a party, an adverse party may at that time introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it. “Writing or recorded statement” includes depositions.
RULE 107. RULE OF OPTIONAL COMPLETENESS
When part of an act, declaration, conversation, writing or recorded statement is given in evidence by one party, the whole on the same subject may be inquired into by the other, and any other act, declaration, writing or recorded statement which is necessary to make it fully understood or to explain the same may also be given in evidence, as when a letter is read, all letters on the same subject between the same parties may be given. “Writing or recorded statement” includes depositions.

Tex.R. Evid. 106 & 107.

The rationale behind these rules is that Lomax, as an opponent of the alleged incomplete recording, would be entitled to introduce into evidence the remainder of the recording or conversation to correct any misleading impressions left with the jury by the previously introduced recording. See Washington v. State, 856 S.W.2d 184, 186 (Tex.Crim.App.1993); Simpson v. State, 975 S.W.2d 364, 368 (Tex.App. — Waco 1998, no pét.). Because there was no other recording, he attempts to use these rules as a means to exclude the tape recording. Rules 106 and 107 are not rules of exclusion, but rather rules of admissibility. See Tex.R. Evid. 106 & 107; cf. Jones v. Colley, 820 S.W.2d 863, 866 (Tex.App. — Texarkana 1991, writ denied). If there had been another portion of the tape recording, Lomax would have the ability to admit a complete recording of his conversation with Denise. See Young v. State, 820 S.W.2d 180, 191 (Tex.App.— Dallas 1991, pet. ref d).

Application Of Law To Facts

Lomax never produced a “complete” tape recording or a different portion of the same conversation to be admitted contemporaneously with the tape Denise made. He cannot use Rules 106 and 107 to exclude the tape. Thus, the trial court did not abuse its discretion in admitting the tape.

Lomax alternatively argues that his case presents the need for a revival of the old “reasonable alternative hypothesis” standard of review. He acknowledges that Geesa overruled this standard. Geesa v. State, 820 S.W.2d 154 (Tex.Crim.App.1991). We decline to address this secondary complaint because we are bound, as an intermediate appellate court, to apply the law as interpreted by the Court of Criminal Appeals. Horton v. State, 986 S.W.2d 297, 300 (Tex.App. — Waco 1999, no pet.).

Lomax’s first issue is overruled.

CONVERSATION

Lomax also complains that the trial court erred in allowing Denise to testify to the remainder of the telephone conversation after the tape ran out because it was an improper use by the State of the rule of optional completeness. The Texas Rules of Appellate Procedure provide:

As a prerequisite to presenting a complaint for appellate review, the record must show that:
(1) the complaint was made to the trial court by a timely request, objection, or motion ...

Tex.R.App. P. 33.1(a). Lomax did not object to Denise’s testimony about the remainder of the conversation. He has not preserved his complaint for our review. Id. Lomax’s second issue is overruled.

Character Evidence

In his third issue, Lomax contends that the trial court erred in not allowing proof of Denise’s character by showing that she had participated in her mother’s divorce where similar sexual abuse accusations were made. The question asked of Denise and Lomax’s attorney’s explanation to the trial court are as follows:

Defense: Did— your mother and her husband are divorced, aren’t they? State: Object to the relevance.
Defense: Your Honor, if I may approach the bench.
Court: Come up.
Defense: I’m pursuing this line of questioning, Your Honor. Basically, it goes to motive. Our defense is that this woman had a divorce— using sexual allegations of this child was to get the divorce and her mother had gotten a divorce before on the basis of sexual allegations and abuse to a child, and the mother, her mother did the same thing. And it’s our contention it goes to motive as to why she got the divorce and how these sexual allegations came about with respect to the child.
Court: Objection is sustained.

Lomax presented nothing in his explanation to the trial court to show that Denise had “participated” in her mother’s divorce as he claims in his brief.

The State voiced an objection to the relevance of the question. Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Tex.R. Evid. 401. Evidence that is not relevant is inadmissible. Id. 402. We are not inclined to determine that what Denise’s mother did, without more, is a fact of consequence in Lomax’s trial. Lomax failed to offer an explanation as to why Denise’s mother’s divorce would have any effect on Denise’s motive to testify against Lomax.

Lomax argues in his brief that because Denise “participated” in her mother’s divorce and was the outcry witness in Lomax’s trial, he could reach the divorce issue under Rule 412. Under this rule, evidence of specific instances of an alleged victim’s past sexual behavior is not admissible unless it relates to the motive or bias of the alleged victim. Id. 412(b)(2)(C). Denise was not the alleged victim in the charge against Lomax and the specific instance sought to be introduced was not Denise’s past sexual behavior. The rule does not contemplate its use against outcry witnesses. Lomax cites us to no cases which would allow him to bootstrap his way into character evidence against an outcry witness through Rule 412. We can find no cases as well.

Therefore, the question whether Denise’s mother was divorced is irrelevant and was properly excluded. Lomax’s third issue is overruled.

Conclusion

Having overruled Lomax’s issues on appeal, we affirm the judgment of the trial court.


text:
    In the Matter of the MARRIAGE OF Ralph I. ROBINSON and Lorrie Ann Robinson and in the Interest of M.I.R., a Child.
    No. 10-98-076-CV.
    Court of Appeals of Texas, Waco.
    March 29, 2000.

      Melvin Gray, San Angelo, for appellant.
    Whitney E. Fanning, Waco, for appellee.
    Before Chief Justice DAVIS, Justice VANCE, and Justice GRAY.
   OPINION

TOM GRAY, Justice.

A husband filed for divorce from his wife of six years and sought custody of their only child. The wife responded by petitioning for divorce. She also sought custody of the child. A jury awarded sole managing conservatorship of the child to the father, and the trial court entered that finding in the divorce decree. The mother brings this appeal claiming that the evidence was both legally and factually insufficient to rebut the presumption that joint managing conservatorship is in the best interest of the child. We affirm the judgment.

FACTUAL BACKGROUND

Ralph and Lorrie Robinson were first married in December of 1986. They divorced but remarried in 1991. In 1993, they had a child. Lorrie left Ralph and took the child with her in early 1997. Ralph filed a petition for divorce and asked to be appointed the child’s sole managing conservator. Lorrie answered the petition and countered with her own petition for divorce. She also requested to be appointed the child’s sole managing conservator. No agreement could be reached between the parties, and the issue of conservator-ship was presented to a jury. After a three day trial, the jury determined that Ralph should be appointed sole managing conservator. The court included this finding in its final decree of divorce and granted Ralph sole managing conservatorship of the child. Lorrie brings two issues on appeal.

FACTUAL SUFFICIENCY

In her second issue, Lorrie raises factual sufficiency of the evidence. According to the Texas Rules of Civil Procedure,

A point in a motion for new trial is a prerequisite to the following complaints on appeal:
(2) A complaint of factual insufficiency of the evidence to support a jury finding;
(3) A complaint that a jury finding is against the overwhelming weight of the evidence[.]

Tex.R. Civ. P. 324(b)(2) & (3). Lorrie filed a motion for new trial but did not include a complaint of factual insufficiency of the evidence or that the finding was against the overwhelming weight of the evidence. Therefore, Lome’s second issue is not preserved for our review and accordingly, is overruled.

LEGAL SUFFICIENCY

In her first issue, Lorrie questions whether the evidence is legally sufficient to rebut the statutory presumption in favor of joint managing conservatorship. No-Evidence Issues in Custody Disputes

In a suit affecting the parent-child relationship, a party is entitled to a verdict by the jury on various issues, including, the appointment of a managing conservator or the appointment of joint managing conservators. Tex. Fam.Code Ann. § 105.002(e)(1)(A) & (B) (Vernon Supp. 2000). A trial court may not contravene a jury verdict on these issues. Tex. Fam. Code Ann. § 105.002(d) (Vernon Supp. 2000).

In the face of the language of the statute, the trial court cannot enter a decree that contravenes the verdict of the jury. T.A.B. v. W.L.B., 598 S.W.2d 936, 938 (Tex.Civ.App. — El Paso 1980, writ ref d n.r.e 606 S.W.2d 695). Notwithstanding the trial court’s inability to contravene the jury’s decision on custody disputes, reviewing courts have the authority to consider, and sustain where warranted, properly raised legal sufficiency issues. See In the Interest of Soliz, 671 S.W.2d 644, 648 (Tex.App. — Corpus Christi 1984, no writ); Farnbro v. Fambro, 635 S.W.2d 945, 948 (Tex.App. -Fort Worth 1982, no writ). Contra T.A.B., 598 S.W.2d at 938.

STANDARD OP REVIEW

In reviewing Lome’s legal sufficiency issue, we consider only the evidence and inferences tending to support the jury’s finding, disregarding all contrary evidence and inferences. Continental Coffee Products Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996); see also Robert W. Calvert, “No Evidence” and “Insufficient Evidence" Points of Error, 38 Tex. L. Rev. 361, 364 (1960). Both parties filed petitions for divorce seeking to be appointed sole managing conservator of the child. Thus, each party chose to assume the burden of rebutting the presumption that appointing both parents as joint managing conservators was in the child’s best interest.

In child custody disputes, a rebuttable presumption exists that the appointment of the parents as joint managing conservators is in the best interest of the child. Tex. Fam.Code Ann. § 153.131(b) (Vernon Supp.2000). A rebuttable presumption “shift[s] the burden of producing evidence to the party against whom it operates.” In the Interest of Rodriguez, 940 S.W.2d 265, 271 (Tex.App. — -San Antonio 1997, writ denied) (citing General Motors Corp. v. Saenz, 873 S.W.2d 353, 359 (Tex.1993)). Once that burden is discharged and evidence contradicting the presumption has been offered, the presumption disappears and is not weighed or treated as evidence. General Motors Corp., 873 S.W.2d at 359. The presumption has no effect on the burden of persuasion. Id.; Rodriguez, 940 S.W.2d at 271.

Because this is a legal sufficiency complaint, if there is some evidence that appointing Ralph as the sole managing conservator is in the best interest of the child, the evidence has the effect of:

1) rebutting the statutory presumption that appointing Ralph and Lorrie joint managing conservators is in the child’s best interest; and
2) being legally sufficient to support the jury’s determination.

See Continental Coffee Products Co., 937 S.W.2d at 450.

Applicable Law

If no written agreement concerning joint managing conservatorship is presented to the trial court, the factfinder may appoint the parents joint managing conservators only if the appointment is found to be in the best interest of the child. Tex. Fam.Code Ann. § 153.134(a) (Vernon 1996). In determining the best interest of the child, the fact finder considers the following factors:

(1) whether the physical, psychological, or emotional needs and development of the child will benefit from the appointment of joint managing conservators;
(2) the ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child’s best interest;
(3) whether each parent can encourage and accept a positive relationship between the child and the other parent;
(4) whether both parents participated in child rearing before the filing of the suit;
(5) the geographical proximity of the parents’ residences; and
(6) any other relevant factor.

Id. The Robinsons could not agree on the conservatorship of the child and thus, produced no written agreement to the trial court. The jury was charged on the foregoing factors to be considered in rendering their verdict.

We review the evidence presented at trial to determine if the evidence relevant to these factors was legally sufficient to rebut the statutory presumption in favor of joint managing conservators and to support the jury’s determination that appointing Ralph as sole managing conservator is in the best interest of the child. In the Matter of the Marriage of Bertram, 981 S.W.2d 820, 825 (Tex.App. — Texarkana 1998, no writ.); Martinez v. Molinar, 953 S.W.2d 399, 401 (Tex.App. — El Paso 1997, no writ); Doyle v. Doyle, 955 S.W.2d 478, 480 (Tex.App. — Austin 1997, no writ). As noted above, in a legal sufficiency review, any evidence more than a scintilla is sufficient.

Facts and Factors

As noted previously, neither Ralph nor Lorrie requested in their pleadings to be appointed joint managing conservators. On temporary orders of the trial court, the parties were named joint managing conservators but did not present a written agreement to the trial court before trial. Thus, we review the evidence in light of the factors listed in the Family Code.

Benefits to the Child

Testimony revealed that prior to the trial, the parties each had possession of the child for two weeks at a time. Witnesses testified that the child was withdrawn and did not want to play after returning from his two weeks with Lorrie. One witness characterized the effect on the child if the child lived with Lorrie as worse than a funeral. Being raised by Lorrie, to the witness, would be condemning the child to the life of the homeless.

Shared Decisiorir-Making Ability

Evidence was produced from both parties that they could not share the decision making regarding the child’s best interest. Lorrie never told Ralph that she was leaving him the second time and taking the child with her. She did not allow Ralph to have contact with the child for three to four weeks after she left him. Ralph could not locate Lorrie to serve her with the divorce petition. Both were afraid that if the other parent had the child, their visitation would be severely limited, or nonexistent.

It was discovered after the separation, that the child had speech problems. Ralph knew that Lorrie was going to have the child tested. However, Lorrie did not share the results of the test with him. Paperwork regarding the child was not shared with Ralph to enable him to enroll the child in special education classes for speech therapy. Ralph did not know that Lorrie had already enrolled the child in speech therapy classes where she lived.

The parties could not come to any agreements regarding the child prior to trial. Ralph further testified that Lorrie refused to compromise prior to trial and had not been cooperative at all. He also lamented that by trial, Lorrie had completely stopped sharing any information about the child.

Encourage a Positive Relationship

Although Ralph testified he would encourage a positive relationship between Lome and the child, both parents were suspicious of each other. Neither believed that they would be allowed to participate in the child’s life if the child lived with the other parent. There was ample testimony that the relationship between the parents was abusive. Ralph was physically and emotionally abusive toward Lorrie, and Lorrie was physically abusive toward Ralph.

Child Rearing

Both parents participated in the raising of the child.

Geographical Proximity

Ralph lived in Copperas Cove with his parents, and Lorrie lived in Sterling City with her mother and stepfather. There is no testimony about the distance between the two towns. However, testimony was developed that the town of Brownwood, the half-way point from Sterling City, was 100 to 120 miles away. A reasonable inference from the evidence would be that the parties resided at least 200 miles from each other.

Application

The record establishes that neither Ralph nor Lorrie could share the decision making ability nor could they promote a positive relationship between the child and the other parent. Furthermore, there is evidence that the child will not benefit from joint managing conservatorship and that the parents live too far apart to promote this form of custody. After applying the evidence to the Family Code factors, we conclude there is more than a scintilla of evidence to support the finding that appointing Ralph sole managing conservator was in the best interest of the child thus also rebutting the presumption in favor of appointing the parents as joint managing conservators. Lome’s first issue is overruled.

CONCLUSION

Having resolved all the issues against Lorrie Robinson, we affirm the judgment of the trial court.

      . In refusing a petition for writ of error, the Texas Supreme Court stated that its action was not to be construed as approving the El Paso court’s language that the Family Code prohibited consideration of properly raised 'no evidence’ points. T.A.B. v. W.L.B, 606 S.W.2d 695 (Tex.1980).

        . In this context, we use “some evidence” in its legal, technical meaning. Thus, anything more that a scintilla is some evidence. See Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983). Of course, a scintilla of evidence is the judicial equivalent of no evidence. Transport Ins. Co. v. Faircloth, 898 S.W.2d 269, 282 (Tex.1995).


author: REX D. DAVIS, Chief Justice.

text:
    TEXAS DEPARTMENT OF MENTAL HEALTH AND MENTAL RETARDATION, et al., Appellants, v. Joy PEARCE, Appellee.
    No. 10-99-156-CV.
    Court of Appeals of Texas, Waco.
    March 29, 2000.
    Rehearing Overruled May 10, 2000.

      Ken W. Williford, Fort Worth, Joe Cannon, Cannon & Simmons, Groesbeck, for appellants.
    Kurt Howard Kuhn, Asst. Solicitor Gen., Bridget Lynn McKinley, Asst. Atty. Gen., Austin, for appellee.
    Before Chief Justice DAVIS Justice VANCE and Justice GRAY.
   OPINION

REX D. DAVIS, Chief Justice.

Joy Pearce filed a wrongful death suit against the Department of Mental Health and Mental Retardation (“MHMR”), Mexia State School (the “School”), and certain employees of the School after her adult son Robert, a resident of the School, died from the ingestion of medication prescribed for Sheldon Harris, one of the defendant employees. Robert allegedly removed the medication from the pocket of Harris’s coat after Harris hung it on a hook on Robert’s bedroom door. The court denied a plea to the jurisdiction premised on sovereign immunity, which was filed by MHMR, the School, and the individual defendants other than Harris. These defendants bring this interlocutory appeal from the court’s denial of their plea to the jurisdiction. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(8) (Vernon Supp.2000).

BACKGROUND

According to Pearce’s petition, Harris entered Robert’s bedroom on January 18, 1997 and hung his coat on a hook on the door. He left a bottle of prescription medicine in his coat pocket. Robert found the bottle and ingested between seventy and ninety pills. He died the next day as a result of ingesting the medication.

Pearce filed suit in April 1998. She named as defendants MHMR, the School, Harris, Harris’s immediate supervisor Evelyn Thomas, and the School’s superintendent William Lowry. The Attorney General filed an answer on behalf of all the defendants except Harris. These defendants (collectively, “Appellants”) generally denied the allegations of Pearce’s suit and specifically pleaded sovereign and official immunity as affirmative defenses. Harris filed a general denial.

After the parties conducted some discovery, Appellants filed a “Plea to the Jurisdiction and Motion to Dismiss.” In this pleading, MHMR and the School assert that the Tort Claims Act does not waive their immunity from suit because Robert’s death was not caused by Harris’s “use of tangible personal or real property.” See Tex. Civ. Prac. & Rem.Code Ann. §§ 101.021(2), 101.025(a) (Vernon 1997). In the prayer, Lowry and Thomas request dismissal of Pearce’s claims against them under section 101.106 of the Tort Claims Act. Id. § 101.106 (Vernon 1997). After hearing, the court denied the plea to the jurisdiction/motion to dismiss.

PROPRIETY OF APPELLANTS’ PLEA TO THE JURISDICTION

Pearce argues that a plea to the jurisdiction is not the proper vehicle by which a governmental entity raises a claim of sovereign immunity. She relies on a 1996 decision of this Court and a more recent decision from the Corpus Christi Court to support this claim. See Smith v. State, 92B S.W.2d 244 (Tex.App. — Waco 1996, writ denied) (per curiam); see also Texas Dep’t of Transp. v. Jones, 983 S.W.2d 90 (Tex.App. — Corpus Christi 1998), rev’d, 8 S.W.3d 636 (Tex.1999) (per curiam).

In Smith, we held that “sovereign immunity may not be asserted as a jurisdictional obstacle to the trial court’s power to hear cases against governmental defendants.” Smith, 923 S.W.2d at 245 (quoting Davis v. City of San Antonio, 752 S.W.2d 518, 520 (Tex.1988)). For this reason, we reversed the court’s granting of a plea to the jurisdiction premised in part on a claim of sovereign immunity. Id. at 246. The Corpus Christi Court agreed with us in Jones and affirmed an order denying a plea to the jurisdiction premised entirely on sovereign immunity. Jones, 983 S.W.2d at 91-92.

Recently however, the Supreme Court reversed Jones and expressly disapproved of Smith. Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 639 (Tex.1999) (per curiam). The Court held “that immunity from suit defeats a trial court’s subject matter jurisdiction and thus is properly asserted in a plea to the jurisdiction.” , Id. Accordingly, we conclude that MHMR and the School properly asserted their claim of immunity from suit in their plea to the jurisdiction.

By contrast however, a party may not assert immunity from liability by a plea to the jurisdiction because such immunity “does not affect a court’s jurisdiction to hear a case.” Id. at 638. Lowry and Thomas assert immunity on the basis of section 101.106 of the Tort Claims Act. Tex. Civ. PRAC. & Rem.Code Ann. § 101.106. Section 101.106 provides:

A judgment in an action or a settlement of a claim under this chapter bars any action involving the same subject matter by the claimant against the employee of the governmental unit whose act or omission gave rise to the claim.

Id. The Supreme Court has determined that this provision makes governmental employees “immune from liability” when a plaintiffs claims against the governmental unit by which they are employed are barred by immunity. Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 343-44 (Tex.1998).

Lowry and Thomas improperly asserted their claims of immunity from liability by way of a plea to the jurisdiction because such immunity “does not affect a court’s jurisdiction to hear a case.” Jones, 8 S.W.3d at 638. Accordingly, we will affirm the order denying the plea to the jurisdiction as to Lowry and Thomas.

DEATH CAUSED BY USE OF TANGIBLE PERSONAL PROPERTY

MHMR and the School present a single issue on appeal questioning whether their immunity from suit has been waived by Harris’s alleged conduct. “[Sovereign immunity, unless waived, protects the State of Texas, its agencies and its officials from lawsuits for damages.” Federal Sign v. Texas So. Univ., 951 S.W.2d 401, 405 (Tex.1997). Immunity from suit precludes a suit against the State unless the State consents by statute or legislative resolution. Id.

The legislature has waived the State’s immunity from suit in cases in which liability exists under the terms of the Tort Claims Act. Tex. Civ. Prac. & Rem.Code Ann. § 101.025(a). Pearce relies solely on section 101.021(2) of that act to establish the liability of MHMR and the School in this case. Id. § 101.021(2). If MHMR and the School are liable under this statute, then section 101.025(a) constitutes a legislative waiver of their immunity from suit.

When considering a jurisdictional challenge, we look only to the factual allegations of the plaintiffs petition. See Continental Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 449 (Tex.1996); WISD Taxpayers Ass’n v. Waco Indep. Sch. Dist., 912 S.W.2d 392, 394 (Tex.App.— Waco 1995, no writ). A plaintiff bears the burden of alleging facts which affirmatively demonstrate that the trial court has jurisdiction. Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993); City of El Campo v. Rubio, 980 S.W.2d 943, 945 (Tex.App. — Corpus Christi 1998, pet. dism’d w.o.j.). Because MHMR and the School do not claim that Pearce’s allegations are fraudulent, we must take them as true. See Continental Coffee Prods., 937 S.W.2d at 449; City of Saginaw v. Carter, 996 S.W.2d 1, 3 (Tex. App. — Fort Worth 1999, pet. filed).

To establish liability under the Tort Claims Act, Pearce must show that Robert’s death was caused by Harris’s use of tangible personal or real property. See Tex. Civ. Prac. & Rem.Code Ann. § 101.021(2). The Supreme Court has construed this provision to require that the “death must be proximately caused by the condition or use of tangible property.” Bossley, 968 S.W.2d at 343. To be a proximate cause, a government employee’s use of property must be “a substantial factor in bringing about the injury.” San Antonio State Hosp. v. Koehler, 981 S.W.2d 32, 35 (Tex.App. — San Antonio 1998, pet. denied); City of Waco v. Hester, 805 S.W.2d 807, 814 (Tex.App. — Waco 1990, writ denied). “Property does not cause injury if it does no more than furnish the condition that makes the injury possible.” Bossley, 968 S.W.2d at 343 (citing Union Pump Co. v. Allbritton, 898 S.W.2d 773, 775 (Tex. 1995)).

In Bossley, the plaintiffs’- son Roger was committed to a Dallas County MHMR facility after a failed suicide attempt. He surprised an MHMR technician unlocking an exterior door to go to lunch, “pushed her aside, and fled.” Id. at 340-41. He went to an interstate about one-half mile from the MHMR facility and attempted to hitchhike a ride. As MHMR personnel and police approached him on the roadside, “he leaped into the path of a truck and was killed.” Id. at 341.

The plaintiffs alleged both a use of property — the technician’s unlocking of the outer door — and a condition of property — an unlocked inner, door — as causative events which waived Dallas County MHMR’s immunity. Id. at 343. The Court examined the geographic, temporal, and causal proximity of the use and condition alleged and determined that they “were too attenuated from Roger’s death, to be said to have caused it.” Id. The Court concluded:

The real substance of plaintiffs’ complaint is that Roger’s death was caused, not by the condition or use of property, but by the failure of Hillside’s staff to restrain him once they learned he was still suicidal. The Tort Claims Act does not waive Dallas County MHMR’s immunity from such a complaint.

Id.

In Pearce’s case, the hook on her son’s bedroom door is similar to the unlocked door in Bossley in terms of its causal relationship to her son’s death. The substance of Pearce’s complaint is that Harris left his medicine in Robert’s bedroom. Because the same result would likely have occurred regardless of where in the room Harris left his coat (e.g., on a dresser, on a chair, or even on Robert’s bed), the hook did nothing more than furnish the condition which made the injury possible. See id.; Koehler, 981 S.W.2d at 36. Accordingly, Harris’s use of the hook cannot be said to have proximately caused Robert’s death. Id.

Pearce’s petition does not allege facts which show that Robert’s death was proximately caused by Harris’s use of the hook. Thus, she has failed to demonstrate a waiver of MHMR’s and the School’s immunity from suit under the Tort Claims Act. See Texas Ass’n of Bus., 852 S.W.2d at 446; Rubio, 980 S.W.2d at 945. Accordingly, we sustain the sole issue presented by MHMR and the School.

CONCLUSION

Lowry and Thomas improperly asserted their claim of immunity from liability in a plea to the jurisdiction. To the contrary however, MHMR and the School properly asserted their immunity from suit in the plea to the jurisdiction. Pearce’s petition fails to allege facts which demonstrate that Robert’s death was proximately caused by Harris’s use of any tangible real or personal property. Thus, her pleadings fail to affirmatively demonstrate a waiver of MHMR’s and the School’s immunity from suit under the Tort Claims Act.

For these reasons, we affirm the order denying the plea to the jurisdiction as to Lowry and Thomas. We reverse the order and render judgment that the plea to the jurisdiction is granted as to MHMR and the School.

      . Harris is not a party to this appeal. According to summary judgment evidence in the record, the School terminated Harris’s employment on February 18, 1997 because of "neglect.”

      . Pearce’s petition actually states eight different "use,” "misuse,” or "lack-of-use” allegations. However, the parties focused solely on Harris's alleged use of the door hook in their appellate briefs and at oral argument. Accordingly, we limit our discussion to Harris’s alleged use of the door hook.

      . Actually, they assert their immunity in the plea to the jurisdiction by asking the trial court to dismiss Pearce's claims under section 101.106. However, both sides on appeal treat this assertion as part and parcel of the plea to the jurisdiction. Accordingly, we do likewise.