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Ford v. Carylon Corporation11/10/2005
ss, if for no other reason that it implies that Ford's failure to respond to the letter caused his actual termination. He has explained in opposition to the summary-judgment motion that, the letter having acknowledged the telephone call from his mother and declaring unconditionally that his subsequent failure to contact the office constituted his voluntary resignation, there was nothing to contest.
We therefore conclude that Ford has made a prima facie showing that his employment was, in fact, terminated; neither his failure to call in to check on the availability of work nor his failure to dispute a letter characterizing his termination as a voluntary resignation constituted a voluntary resignation.
B. Causal Connection
Ford next argues that he demonstrated a causal connection between his filing of a workers' compensation claim and his termination. In order to establish his prima facie case where, as here, no party disputes the existence of an employment relationship or an on-the-job injury and no one disputes that the employer knows that the employee has filed a workers' compensation claim, it is essential that a retaliatory-discharge plaintiff prove that filing his workers' compensation claim was the sole cause of his subsequent discharge. Aldridge, 854 So. 2d at 563. In Aldridge, we first noted that a typical starting point in an analysis of whether the filing of a claim was the sole cause for the discharge is the temporal proximity between the filing of the claim and the termination of employment. 854 So. 2d at 565. Second, looking to the analyses of other states, we made special note of the following factors used by the State of Texas in determining causation:
"'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 policy, 4) discriminatory treatment in comparison to similarly situated employees, 5) sudden changes in an employee's work performance evaluations following a workers' compensation claim, and 6) evidence that the stated reason for the discharge was false.'"
854 So. 2d at 564-65 (quoting Chhim v. University of Houston, 76 S.W.3d 210, 218 (Tex. Ct. App. 2002)).
In this action, Ford was discharged within three months of returning to work, after even fewer days of actual work, because of the number of days between Ford's last working day and the date he received the letter informing him that he had voluntarily "resigned." Thus there was a relatively small period of time between the filing and the firing.
Next, there was testimony before the trial court from Kulbitskas demonstrating that Video typically did not discipline an employee for failing to telephone to check on the availability of work until perhaps after two or three such failures. Despite this, however, Ford was twice given written reprimands for instances where Video claimed he failed to call in on a single day, the first being the second day after he reported back to work, although in both cases Ford asserts (and we must accept as true) that he did notify Video and had satisfactory reasons for his absences. These events clearly evidence Video's failure to adhere to its established discipline policy and allow an inference of Video's eagerness to "write up" Ford. They further indicate the possibility of "sudden changes" in how Ford was evaluated or perhaps even discriminatory treatment in comparison to that afforded other employees.
In addition, soon after returning to work Ford was instructed to again vacuum out a tank, the same work he was performing when he was seriously injured. Ford tol
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