Officer terminated for absence control violation, not retaliation

In Texas, an employer can terminate an employee under an absence control policy if the policy is reasonable and is uniformly enforced on all employees.

Case name: Larsen v. Santa Fe Independent School District, No. 14-07-01038-CV (Tex. Ct. App. 07/28/09).

Ruling: The Texas Court of Appeals upheld summary judgment for the school district on an employee's retaliatory termination claim. The court determined the employee did not show he was treated differently than other employees when he was terminated. The court also held that the employee was not required to exhaust administrative remedies before filing a workers' compensation retaliation claim.

Sub-subcontractor's employee not entitled to coverage from contractor (02/25/13)
Cleaner's use of helpers indicates independent contractor status (11/01/12)
Statement made weeks before termination moves claim forward (09/30/11)
Failure to rebut rehab counselor's report boosts driver's claim (04/19/12)
Hospital not subject to penalties for worker's fall in elevator shaft (04/19/12)

What it means: In Texas, an employer can terminate an employee under an absence control policy if the policy is reasonable and is uniformly enforced on all employees. To establish that the policy was not uniformly enforced, a terminated employee must provide competent evidence that he was treated differently than similarly situated employees.

Summary: A police officer who worked for the school district was injured during a training exercise and was unable to return to work. He was terminated based on a school district policy that stated an employee may be terminated if he has expended all of his available leave time and cannot return to work. The police officer filed a retaliatory discharge claim, contending the school district terminated him for filing a workers' compensation claim. The school district argued the officer failed to exhaust his administrative remedies and thus could not bring his retaliation suit. The court rejected the school district's argument. It reasoned that the retaliatory discharge claim did not require the officer to go through the school district's grievance procedure because: 1) it was an action that was not uniquely a local school concern; 2) the officer brought his suit under the Texas Workers' Compensation Act, a law that is "wholly independent" of the state education code; and 3) school employees are not required to exhaust a school district's administrative remedies simply because they are employed by a school district.

The school district maintained that it terminated the officer based on its absence control policy and not in retaliation for filing his claim. In Texas, an employer can terminate an employee under an absence control policy if the policy is reasonable and is uniformly enforced on all employees. To establish that the policy was not uniformly enforced, a terminated employee must provide competent evidence that he was treated differently than similarly situated employees.

The court concluded the officer did not show he was treated differently than other similarly situated employees. The officer argued another employee had absenteeism and personal leave problems but was not terminated. However, the officer failed to show the other employee was unable to return to work after exhausting her available leave time.

Read more at the WORKERSCOMP Forum^TM homepage.

October 1, 2009

Newsletter Sign-up