YOU’VE BEEN SUED FOR WORKERS’ COMP
RETALIATION NOW WHAT?
In reaction to what was perceived by many to be an “insurance crisis” in the late
1980s to early 1990s, Texas lawmakers undertook significant measures to “reform” the
Texas Workers’ Compensation Act. As a result of those sweeping legislative changes, the
number of workers’ compensation insurance claim lawsuits in Texas was drastically reduced.
Although the legislative overhaul of the Texas workers’ compensation system achieved
many intended results, the legislators did not deem it necessary to modify the statutorily-
created cause of action for so-called “workers’ comp retaliation.” Such lawsuits remain
among the most potentially dangerous and expose unsuspecting employers to large damages
awards. An employer sued for “workers’ comp retaliation may find himself or herself
asking: “Now what?”
I. What Are The Legal Issues?
Workers’ compensation retaliation claims are creatures of statute whose present-day
origins can be traced to Article 8307(c) of the Texas Revised Civil Statutes Annotated.
Article 8307(c) was repealed and replaced, effective September 1, 1993, by Chapter 451 of
the Texas Labor Code. The prohibitions contained in Chapter 451 are the same as those
which existed in Article 8307(c).
A. Texas Labor Code prohibits “discrimination” by private employers.
Texas Labor Code §451.001 prohibits “a person” from discharging or in any
other manner discriminating against an employee because the employee has:
(1) filed a workers’ compensation claim in good faith;
(2) hired a lawyer to represent the employee in a claim;
(3) instituted or caused to be instituted in good faith a proceeding [under
the Texas Workers’ Compensation Act]; or
(4) testified or is about to testify in a proceeding [under the Act].
Because workers’ comp retaliation claims are statutory in nature and scope, the starting point
for analyzing any such claims begins with the following questions:
(1) Did the employer discharge the employee or otherwise discriminate
against the employee in some manner (i.e. treat the employee more
harshly or in a disparate manner as compared to similarly-situated
(2) If so, is there direct or circumstantial evidence suggesting that the
underlying reason was because the employee engaged in (or was
suspected of engaging in) one or more of the four statutorily-
protected activities (i.e. filed a claim, hired a lawyer, instituted a
proceeding for workers’ comp benefits, or testified at a hearing)?
B. State and local government employers.
While the statutory prohibitions of Chapter 451 apply to virtually every
“person” in the private sector, the same can not be said for those who toil in the public
sector. Texas courts interpreting the scope of Chapter 451 and its application to
governmental employers have struggled mightily with respect to the issue of sovereign
immunity. Courts have found that sovereign immunity has been waived with respect to
Chapter 451 for some, but not all, governmental employers. The question of whether or not
a public sector employee may pursue a workers’ comp retaliation lawsuit is largely
determined by the identity of his or her employer. Some are immune from suit, while some
are not. For example, in Clark v. University of Texas Health Science Center, 919 S.W.2d
185, 188 (Tex. App. - Eastland 1996, writ denied) employees of the University of Texas
System were found not covered by the anti-retaliation provisions of Chapter 451. The fact
that some employees are covered by Chapter 451 whereas other public employees are not has
been held not to violate the equal protection provisions of the Constitution. Id.
Many, if not most, of the larger public employers are covered by Chapter 451.
For example, Tex.Lab.Code §504.002(a) provides that Chapter 451 applies to employees of
political subdivisions. Canutillo Indep. School District v. Olivares, 917 S.W.2d 494, 496
(Tex. App. - El Paso 1996, no writ). Likewise, sovereign immunity for municipalities has
been held to have been waived for claims under Chapter 451, although municipalities can not
be held liable for punitive damages and the amount of actual damages recoverable is limited.
City of LaPorte v. Barfield, 898 S.W.2d 288 (Tex. 1995); Kuhl v. City of Garland, 910 S.W.
929 (Tex. 1995).
Employers who voluntarily opt out of the Texas workers compensation
system--i.e. affirmatively notify the Texas Workers’ Compensation Commission that they do
not provide workers’ compensation insurance coverage for their employees--are referred to
as “nonsubscribers.” Beginning in the mid-1980s, during the so-called “insurance crisis,” an
increasing number of Texas employers became “nonsubscribers” to avoid the high cost of
workers’ compensation insurance. Thereafter, Texas courts began to struggle with issue of
whether “nonsubscribers” were subject to liability under Chapter 451. The issue eventually
was resolved by the Texas Supreme Court’s decision in Texas Mexican Railway Co. v.
Bouchet, 963 S.W.2d 52, 55-57 (Tex. 1998), which held that nonsubscribers are not subject
to Chapter 451 actions (because Chapter 451 protects only persons who can file workers’
compensation claims under the Texas Workers’ Compensation Act).
II. What Are The Procedural Issues?
A. Notice of claim and service of process.
A critical inquiry in virtually every workers’ comp retaliation claim is
whether the retaliation claim was filed timely? Chapter 451 does not have its own statute of
limitations; therefore, the two-year statute of limitations for personal injury torts is
applicable. Almazan v. United Services Auto Association, 840 S.W.2d 776 (Tex. App. - San
Antonio 1992, writ denied). The Texas Supreme Court has held that the statute begins to run
when “the employee receives unequivocal notice of his or her termination or when a
reasonable person should have known of his or her termination.” Johnson & Johnson
Medical v. Sanchez, 924 S.W.2d 925, 928 (Tex. 1996) (placing an employee on “indefinite
medical layoff” was insufficient notice of termination); see, also, Thurman v. Sears Roebuck
& Company, 952 F.2d 128, 131 (5th Cir. 1992), reh’g denied 957 F.2d 869 (5th Cir. 1992),
cert. denied, 506 U.S. 845 (1992). The “notice” issue also is important in those cases in
which the plaintiff alleges retaliatory layoff, transfer, demotion, etc. or in cases in which the
plaintiff has alleged a retaliatory “constructive discharge.” In those cases, the courts have
held that the statute of limitations begins to run when the plaintiff has been given actual
notice of his or her layoff, demotion, transfer, rather than when the adverse action actually
occurs. For example, in Davila v. Lockwood, 933 S.W.2d 628 (Tex. App. - Corpus Christi
1996, no writ) the court held that the plaintiff’s cause of action for constructive discharge
due to a hostile work environment accrued when the plaintiff gave his two-week notice that
he was quitting, not when he actually quit his job. The court concluded that the plaintiff
would have had notice of the intolerable working conditions not later than the point at which
the plaintiff felt compelled to resign.
Notably, Chapter 451 does not apply to applicants for employment.
Therefore, an employee who is permanently laid off or terminated from employment can not
resurrect the limitations period by making subsequent requests for rehire. Smith v. Coffee’s
Shop for Boys and Men, Inc., 536 S.W.2d 83, 84 (Tex. App. - Amarillo 1976, no writ)
Likewise, a plaintiff pursuing a Chapter 451 cause of action must plead and prove that he or
she was an employee of the defendant employer at the time of the incident made the basis of
the lawsuit, i.e. independent contractors or former employees may be precluded from
pursuing a workers’ comp retaliation claim. See Anchor Casualty Company v. Hartsfield,
390 S.W.2d 469 (Tex. 1965) (independent contractor not entitled to Chapter 451 protection);
Mayo v. Southern Farm Bureau Casualty Insurance Company, 688 S.W.2d 241 (Tex. App. -
Amarillo 1985, writ refused n.r.e.) (driver of leased truck lacks standing as an employee to
pursue a Chapter 451 claim); Stoker v. Furr’s Inc., 813 S.W.2d 719 (Tex. App. - El Paso
1991, writ denied) (Chapter 451 does not protect job applicants).
B. State v. federal court.
Ordinarily, workers’ comp retaliation suits under Chapter 451 may not be
filed in federal court or removed to federal court, even if the diversity and amount in
controversy requirements are satisfied. See Anderson v. American Airlines, Inc., 2 F.3d 590
reh’g denied 9 F.3d 105 (5th Cir. 1993); Jones v. Roadway Express, Inc., 931 F.2d 1086,
1092 reh’g denied 936 F.2d 789 (5th Cir. 1991). Moreover, at least one court has held that a
Chapter 451 suit can not be removed to federal court even if it is pendent to a federal
question claim. Sherrod v. American Airlines, 132 F.3d 1112 (5th Cir. 1998).
C. Burdens of proof.
To prevail on a workers’ comp retaliation claim under Chapter 451, an
employee must prove that he or she was discharged or received some other adverse treatment
from his employer because the employee (1) filed a workers’ compensation claim in good
faith, or (2) hired a lawyer to represent the employee in a claim, or (3) instituted or caused to
be instituted in good faith a proceeding under the Workers’ Compensation Act, or (4)
testified (or is about to testify) in a workers’ compensation proceeding. Texas Labor Code
§451.001. The employee must demonstrate by direct or circumstantial evidence a causal
connection between the discriminatory or retaliatory act and the employee’s participation in
activities protected by Chapter 451. Continental Coffee Products Company v. Cazarez, 937
S.W. 2d 444 (Tex. 1996); Palmer v. Miller Brewing Company, 852 S.W.2d 57, 61 (Tex.
App. - Fort Worth 1993, writ denied).
A number of Texas courts have liberally applied the burden of proof standards
with respect to the plaintiff’s proof of a causal connection between an adverse action and the
plaintiff’s filing of or participation in the pursuit of a workers’ compensation claim. It is not
necessary, for example, that the worker’s compensation claim for benefits have been the sole
cause for the discharge or discrimination; the plaintiff must show only that without the
claim, the discharge or discrimination would not have occurred. Continental Coffee
Products Company v. Cazarez, 937 S.W. 2d 444, 451 n.3 (Tex. 1996) (uniform enforcement
of reasonable absence-control provision does not constitute a retaliatory discharge).
Likewise, it is not necessary that the employee actually have filed a claim for worker’s
compensation prior to being discharged, it is sufficient if the employee took steps toward
instituting a proceeding, such as informing the employee of his or her injury. Worsham Steel
Company v. Arias, 831 S.W.2d 81, 84 (Tex. App. - El Paso 1992, no writ); Borden, Inc. v.
Guerra, 860 S.W.2d 515, 521 (Tex. App. - Corpus Christi 1993, dis. agr.) (notifying
emploer of injury and completing injury report was sufficient); Southwestern Electric
Power Company v. Martin, 844 S.W.2d 229, 232 (Tex. App. - Texarkana 1992, den.)
(employee’s request for a hearing on his request for a lump-sum settlement of benefits claim
Once the employee establishes the necessary causal connection between his or
her claim for workers’ compensation benefits (or participation in other protected activity)
and the adverse employment action made the basis of the workers’ comp retaliation suit, the
burden shifts to the employer to rebut the alleged discrimination. The employer must show
that there was a legitimate reason for the discharge or other adverse action, which will be
determined on a case-by-case basis. Continental Coffee Products Company v. Cazarez, 937
S.W. 2d 444 (Tex. 1996). Although the ultimate burden of persuasion is on the
plaintiff/employee, the employer must establish a legitimate, non-discriminatory reason for
the discharge or other adverse employment action or otherwise demonstrate that the
employee has failed to produce any evidence of retaliatory motive. Texas Division - Tranter,
Inc. v. Carrozza, 876 S.W.2d 312 (Tex. 1994). Essentially, the decision in Carrozza follows
the standard of proof developed by the federal courts in discrimination and retaliation suits
under Title VII of the Civil Rights Act of 1964. If the employer offers a legitimate business
reason for the discharge or other adverse employment action, then the plaintiff must show
that the employer’s explanation is merely a pretext. See Terry v. Southern Floral Company,
927 S.W.2d 254 (Tex. App. - Houston [1st Dist.] 1996, no writ).
III. What Are The Evidentiary Issues?
A. Direct Evidence.
As is true in most cases involving claims of discrimination or retaliation, one
way in which a plaintiff can demonstrate a causal link between the employee’s actions and
the employer’s motive is to offer direct evidence of a discriminatory or retaliatory motive on
the part of the employer. Most often, that evidence comes in the form of negative comments
or actions by the plaintiff’s supervisors or the persons involved in the decision to terminate
or otherwise take adverse action against the plaintiff. Essentially, the plaintiff demonstrates
by those comments or actions that the employer had hostility toward the injured plaintiff in
particular or the workers’ compensation system in general. See, e.g., Chemical Express
Carriers v. Pina, 819 S.W.2d 585, 590 (Tex. App. - El Paso 1991, writ denied) (supervisor’s
comment that plaintiff would sue the company was direct evidence of discrimination); Van-
Tran Electric Corp. v. Thomas, 708 S.W.2d 527 (Tex. App. - Waco 1986, writ ref’d n.r.e.)
(company official telling employee he would make sure employee never got another job was
sufficient direct evidence). See, also, Munoz v. H&M Wholesale, Inc., 926 F.Supp. 596
(S.D. Tex. 1996) (causal link demonstrated by statement that employee was discharged
because the company feared he would re-injure his back and because he should have claimed
his back injury on his personal health insurance rather than filing a workers’ compensation
B. Circumstantial evidence.
In most workers’ comp retaliation cases, the causal link necessary to satisfy
the plaintiff’s burden of proof is established by circumstantial, rather than direct, evidence.
Usually, the employee attempts to prove that the employer had knowledge of the employee’s
injury and/or workers’ compensation claim before making a decision to discharge the
employee or otherwise take adverse action against him or her. See, e.g., America West
Airlines, Inc. v. Tope, 935 S.W.2d 908, 912-913 (Tex. App. - El Paso 1996, no writ)
(negative attitude toward employee after learning of his injury and failing to follow company
disciplinary policy was sufficient circumstantial evidence of retaliatory motive). Evidence
that the stated reason for the discharge is false may also be relevant, albeit circumstantial,
evidence. Gorges Foodservice, Inc. v. Huerta, 964 S.W.2d 656, 665 (Tex. App. - Corpus
Christi 1997, no pet.). Likewise, sudden changes in an employee’s job performance
evaluations following a worker’s compensation claim have been found to be sufficient
circumstantial evidence of discriminatory motive. Castor v. Laredo Community College,
963 S.W.2d 783, 785 (Tex. App. - San Antonio 1998, no pet.). Finally, the timing of adverse
action against an employee in relation to the date of his or her injury or worker’s
compensation claim may be sufficient to establish a causal connection. Porterfield v. Galean
Hospital Corp., 948 S.W.2d 916 (Tex. App. - San Antonio 1997) (employee fired on the
Monday after compensible claim on the preceding Friday).
Circumstantial evidence has found to be insufficient to establish the necessary
causal link, if that evidence is based solely upon the injured employee’s subjective belief that
he was discharged because of his workers’ compensation claim. Texas Division - Tranter,
Inc. v. Carrozza, 876 S.W.2d 312, 314 (Tex. 1994); Terry v. Southern Floral Company, 927
S.W.2d 254 (Tex. App. - Houston [1st Dist.] 1996, no writ); see, also, Continental Coffee
Products Company v. Cazarez, 903 S.W.2d at 79. The timing of an employee’s discharge
can also work in the employer’s favor and may provide circumstantial evidence that an
employee’s workers’ compensation claim was not the reason for discharge. For example, in
Burfield v. Brown, Moore and Flint, Inc., 51 F.3d 583, 589 (5th Cir. 1995) (a 15-month
interval between the filing of a workers’ compensation claim and the plaintiff’s discharge
was deemed to be probative evidence of a lack of retaliatory motive. Moreover, if an injured
plaintiff is no longer capable of performing the essential functions of his job due to his work-
related injury, he may be terminated by the employer without liability under Chapter 451.
Id. at 559.
C. Potential defenses.
A commonly-used defense in a workers’ comp retaliation claim is the
employer’s uniform application of a leave of absence policy or an attendance control policy.
While not an affirmative defense per se, a number of courts have accepted the uniform
application of such policies as persuasive evidence that the employer lacked the requisite
retaliatory or discriminatory animus, i.e. the employer’s reason for the discharge or adverse
action was based upon legitimate, non-discriminatory, business reasons. See, e.g.,
Swearingen v. Owens-Corning Fiberglass Corp., 968 F.2d 559 (5th Cir. 1992) (termination
as a result of two-year leave of absence policy upheld); Parham v. Carrier Corp., 9 F.3d 383
(5th Cir. 1993) (two-year leave of absence policy for both work and non-work-related injuries
was upheld); Texas Division - Tranter, Inc. v. Carrozza, 876 S.W.2d 312 (Tex. 1994) (three-
day “no call/no show” policy upheld); Palmer v. Miller Brewing Company, 852 S.W.2d 57
Tex. App. - Fort Worth 1993, writ den.) (termination due to excessive absenteeism policy
As noted previously, a claim for discrimination or retaliation under Chapter
451 is governed by a two-year statute of limitations, which begins to run when the cause of
action accrues. Failure of the plaintiff to file suit within the two-year limitations period will
subject the plaintiff’s claim to a limitations defense. Reeves v. Houston Lighting and Power
Company, 4 S.W.3d 374, 376 (Tex. App. - Houston [1st Dist.] 1999, pet. den.)
Some employers have successfully argued that §301 of the federal Labor
Management Relations Act (which provides a federal cause of action for the breach of a
collective bargaining agreement) may preempt an employee’s claim under Chapter 451 in
those situations in which the employee’s claim requires the interpretation of the applicable
collective bargaining agreement. Reece v. Houston Lighting and Power Company, 79 F.3d
485, 487 (5th Cir. 1996), cert. denied. 117 S.Ct. 171 (1996); see, also, Johnson v. Alcatel
Network Systems, Inc., 963 F.Supp. 599 (N.D. Tex. 1997). The mere existence of a “just
cause” provision in a collective bargaining agreement may not be sufficient, however, to
preempt a workers’ comp retaliation claim in all instances. If the employee’s claim is
independent of the collective bargaining agreement and does not require an interpretation of
the collective bargaining agreement, courts have held that there is no preemption of the
claim. International Union v. Johnson Controls, Inc., 786 S.W.2d 265 (Tex. 1990).
Courts have held that an employee is not required to exhaust an arbitration
remedy provided in a collective bargaining agreement before filing suit under Chapter 451.
International Union United Auto Aerospace and Agricultural Implement Workers Local 119
v. Johnson Controls, Inc., 813 S.W.2d 558 (Tex. App. - Dallas 1991, writ denied); Bonner v.
Fleming Companies, Inc., 734 S.W.2d 764, 765 (Tex. App. - Fort Worth 1987, writ denied).
However, exhaustion of administrative remedies may be required before suit is filed against
a governmental defendant. See, e.g., Wilmer-Hutchins Independent School District v.
Sullivan, 51 S.W.3d 293, 294 (Tex. 2001).
As noted previously, sovereign immunity may provide a defense to a claim
under Chapter 451. City of LaPorte v. Barfield, 898 S.W.2d 288 (Tex. 1995) (sovereign
immunity as to municipal governments waived); Harrison County v. Louvier, 956 S.W.2d
106 (Tex. App. - Houston [14th Dist.] 1997) (no waiver of sovereign immunity with respect
to claims against counties for pre-1991 injuries). NOTE: With respect to retaliatory
discharge actions against counties concerning injuries that occurred in 1991 or later, the
claimant must present the claim to the county commissioners’ court before filing suit against
the county, and the county is entitled to have the suit abated (but not dismissed) if the
claimant fails to meet the claim presentation requirement. County of Bexar v. Garcia, 974
S.W.2d 107, 109 (Tex. App. - San Antonio 1998, no pet.). Also, as noted previously, state
agencies may be sued for retaliatory discharge, but damages in such a suit are subject to the
damages caps in the Texas Tort Claims Act. Kerrville State Hospital v. Fernandez, 28
S.W.3d 1, 10 (Tex. 2000), and the defense of official immunity is available only to a
governmental employee sued in his individual capacity. Battin v. Samaniego, 23 S.W.3d
183, 187 (Tex. App. - El Paso, pet. den.)
Finally, although not a defense or complete bar to the filing of a lawsuit, the
doctrine of “after-acquired evidence” may limit the scope of a plaintiff’s recovery in a
Chapter 451 action. The after-acquired evidence doctrine has been adopted in Texas as a
limitation on an employee’s recovery in a retaliatory discharge claim if the employer
establishes that, after the employee was fired, the employer discovered that the employee had
engaged in serious misconduct which would have served as a legitimate basis for discharge
(if the misconduct had been known at the time of the discharge). In such circumstances, the
court may not order reinstatement as a remedy and the employee may not recover actual
damages for the period after the employer discovered the existence of facts which would
have justified the employee’s termination (i.e. the employee will be entitled to claim back
pay only from the date of the unlawful discharge to the date that the employer discovered the
employee’s misconduct). Trico Technologies Corp. v. Montiel, 949 S.W.2d 308, 312 (Tex.
IV. What Are The Potential Damages And Remedies?
A. Actual damages.
Section 451.002(b) provides that a successful plaintiff may be entitled to
reinstatement and the payment of “reasonable damages.” A successful plaintiff may be
entitled to recover actual damages, even if reinstatement is not sought as a remedy.
Pacesetter Corp. v. Barrickman, 885 S.W.2d 256, 263 (Tex. App. - Tyler 1994, n.w.h.). In
addition, if reinstatement is awarded, such relief may be inconsistent with an award of future
wage damages for the same period of time--requiring the plaintiff to make an election of
remedies to avoid a double recovery. Martin v. Texas Dental Plans, Inc., 948 S.W.2d 799
(Tex. App. - San Antonio 1997). An employee who seeks reinstatement has the burden of
proving that he or she is physically capable of performing the duties of his or her former job.
Parham v. Carrier Corp., 9 F.3d 383, 389 (5th Cir. 1993). An employee’s subjective belief
or statements that he or she is able to return to work are not sufficient to meet this burden of
proof. Schrader v. Artco Bell Corp., 579 S.W.2d 534 (Tex. App. - Tyler 1979, writ ref’d
n.r.e.). Actual damages include lost wages and benefits (past and future) as measured by the
amount of money which the employee would have earned (or would be expected to earn in
the future) if the employee had not been discharged or discriminated against in violation of
the statute. See Stevens v. National Education Centers, Inc., 990 S.W.2d 374, 378 (Tex.
App. - Houston [14th Dist.] 1999, pet. den.). However, an employee may not be permitted to
recover damages for an injury for which the employee already has received workers’
compensation benefits. Conex Intern. Corp. v. Cox, 18 S.W.3d 323, 325 (Tex. App. -
Beaumont 2000, pet. den.)
In addition to being entitled to recover out-of-pocket and future monetary
losses, a successful plaintiff in a Chapter 451 suit may be entitled to recover mental anguish
damages upon proof that the plaintiff has experienced a high degree of mental pain and
distress (i.e. more than mere disappointment, anger, resentment, embarrassment, etc.).
Trevino v. Southwestern Bell Telephone Company, 582 S.W.2d 582 (Tex. App. - Corpus
Christi 1979); see, also, Texas Health Enters., Inc. v. Kirkgard, 882 S.W.2d 630, 634 (Tex.
App. - Beaumont 1994, writ denied). The determination of the amount of mental anguish
damages is left to the broad discretion of the jury. Worsham Steel Company v. Arias, 831
S.W.2d 81, 85 (Tex. App. - El Paso 1992, no writ); see, also, Paragon Hotel Corp. v.
Ramirez, 783 S.W.2d 654 (Tex. App. - El Paso 1989, writ denied) ($100,000 jury award
upheld where plaintiff was bedridden at the time of termination, plaintiff’s wife was ill and
pregnant at the time, plaintiff had severe financial stresses at the time, plaintiff had no other
source of income, all of which ultimately led to a break-up of plaintiff’s marriage).
B. Exemplary damages.
Exemplary damages are recoverable in a wrongful discharge suit under
Chapter 451. Azar Nut Company v. Caille, 734 S.W.2d 667, 669 (Tex. 1987). However, a
plaintiff may not recover exemplary damages if he or she fails to prove actual damages.
Martin v. Texas Dental Plans, Inc., 948 S.W.2d 799 (Tex. App. - San Antonio 1997).
Exemplary damages are available only if the employer acted with actual malice. Continental
Coffee Products v. Cazarez, 937 S.W.2d 444, 452 (Tex. 1996). The plaintiff also must show
that his or her employer had animosity toward the plaintiff personally or desired to injure the
plaintiff; proof that the termination was merely wrongful is insufficient to establish malice.
C&D Robotics, Inc. v. Mann, 47 S.W.3d 194, 201 (Tex. App. - Texarkana 2001, no writ).
Only egregious violations of the law will support an award of exemplary damages. Stevens
v. National Education Centers, Inc., 990 S.W.2d 374, 377 (Tex. App. - Houston [14th Dist.]
1999, pet. den.)
C. Injunctive relief.
Section 451.003 provides that a court may restrain, for cause shown, a
violation of Section 451.001. Although Section 451.003 refers to a district court’s power to
restrain, by injunction, violations of Section 451.001, county courts have been held to have
concurrent subject matter jurisdiction with the district courts over workers’ compensation
retalation claims. Continental Coffee Products Company v. Cazarez, 937 S.W.2d 444 (Tex.
D. Costs and attorneys’ fees.
Absent a specific statutory authorization or an agreement between the parties
for such a recovery, attorneys’ fees are not considered “reasonable damages suffered by an
employee” and, thus, are not recoverable in a workers’ comp retaliation claim. Holland v.
Wal-Mart Stores, Inc., 1 S.W.3d 91 (Tex. 1999).
V. How Can Retaliation Claims Be Avoided?
A. Restricted duty policies.
So-called “light duty” policies can, if administered correctly, serve as a
valuable tool in limiting or preventing workers’ comp retaliation claims. Such policies can
demonstrate and employer’s willingness to accommodate an injured employee’s work-
related restrictions. Without the availability of such “light duty,” an employer’s only other
option in many instances may be to layoff or discharge the injured employee, thereby setting
the stage for an employee to claim that his or her workers’ compensation claim was the
reason for the layoff or discharge. If employer does establish a “light duty” policy, the
employer should create the light duty position for a limited amount of time and should
inform the returning employee that the light duty assignment is temporary in nature. In
determining the extent to which such light duty positions will be made available, the
employer should obtain input from the injured employee’s doctor regarding whether or not
the employee’s physical limitations will permit the employee to perform the essential
functions of the light duty position. Upon return to work, the injured employee should be
monitored to determine whether or not he or she is able to satisfactorily perform the work
required and to determine whether or not the employee is attempting to work beyond the
restrictions imposed by the employee’s doctor. The employee’s supervisor should be
cautioned against asking the employee to exceed the agreed upon work restrictions and
further should be cautioned against making any negative comments about the employee’s
limited ability to work.
B. Attendance policies.
As noted previously, attendance policies and neutral leave of absence policies
can serve as a legitimtae non-discriminatory basis for discharge or taking other action
perceived by an employee as adverse. Texas Division - Tranter, Inc. v. Carrozza, 876
S.W.2d 312 (Tex. 1994). The key to utilizing such policies as a defense to a Chapter 451
claim is the uniform and neutral application of the policy, i.e. the policy should be applied
the same to all employees.
The policy should make clear that if any employee does not return to work
within the maximum leave of absence, or if the employee fails to call in or show up for work
for a consecutive number of days, then the employee will be subject to automatic termination
from employment. The policy also should set forth the circumstances and requirements for
an employee’s return to work after a leave of absence, such as being required to submit to a
return-to-work physical examination after an extended leave of absence or being able to
return to the employee’s former job (even though the employee has been replaced during his
or her absence). The policy also should require periodic obligations on the part of the
employee to keep the employer informed of his or her status and expected dates of treatment
or return to work. Likewise, the policy also should provide a procedure whereby an
employee is required to submit a written request to extend a leave of absence if warranted or
necessitated by the circumstances. Finally, a leave of absence policy which affords an
employee the opportunity to reapply--if termination occurred under the leave of absence
policy while the employee was otherwise in good standing--tends to show that an employer
does not have animosity toward injured workers.
C. Documentation of performance problems.
Observed job performance deficiencies should be documented as they occur
and corrective action taken immediately thereafter. If an employer discharges an employee
because of a chronic performance or absenteeism problem shortly after an employee has filed
a claim for workers’ compensation, an inference may be created that the true motivation for
the employer’s action was workers’ comp retaliation. If an employer has become lax in
documenting and correcting performance or attendance problems prior to a workers’
compensation claim being filed, the employer may find it difficult if not impossible to
terminate the offending employee after notice of a workers’ compensation claim has been
submitted. Being able to demonstrate that the employee’s job performance or attendance has
been deficient in various respects prior to the employee’s workers’ compensation claim may
prove to be the key evidence in a workers’ comp retaliation case.
It is necessary, when documenting workers’ compensation claims, that all
related records be kept separate from an employee’s personnel file. The employee’s
supervisor should not be involved in administering the employee’s workers’ compensation
claim, although it is advisable to notify the supervisor that the claim exists (to prevent the
supervisor from being tempted to make negative comments about the employee’s claim).
Likewise, the supervisor’s compensation should not be dependent upon such cost-saving
measures as the reduction of on-the-job injuries. Similarly, supervisors should be instructed
not to engage in their own independent investigations of the employee’s worker’s
compensation claim or to offer opinions to others regarding the bona fides of the employee’s
claim. Such circumstantial evidence often forms the basis of an employee’s workers’ comp
retaliation claim and sometimes can be difficult to rebut.
YOU’VE BEEN SUED FOR WORKERS’ COMP
RETALIATION NOW WHAT?
Gary L. Ingram
JACKSON WALKER L.L.P.
901 Main Street, Suite 6000
Dallas, Texas 75202
JACKSON WALKER L.L.P.
301 Commerce Street, Suite 2400
Fort Worth, Texas 76102