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Texas Supreme Court rules in employment retaliation case

According to the Texas Supreme Court, an employer did not retaliate against its employee who filed a workers’ comp claim.

In a recent case, the Texas Supreme Court held that an employer did not violate the state’s anti-retaliation law when it fired an employee who had filed a workers’ compensation claim.


In early July 2009, the employee-respondent in the case was injured when a lighting fixture fell on him lacerating his wrist, severing two tendons and his median nerve. A workers’ comp claim was initiated on the same day as the injury and surgery was performed later in the month.

Following twelve weeks of Family and Medical Leave Act (FMLA) protected leave, the employee was not issued a release by his doctor to return to work. In response, the employer fired the employee, encouraging him to apply for available positions when he was medically able to return to work.

The employee subsequently sued the employer for breach of contract and for wrongful termination in retaliation for filing a workers’ compensation claim. A jury found in favor of the employer, as did the court of appeals, and the employer appealed to the Texas Supreme Court.

Employment retaliation claims in Texas

In Texas, an employer is prohibited by law from firing an employee for filing, in good faith, a claim for workers’ compensation. To prove that an employer’s decision to terminate an employee was in retaliation for filing a workers’ comp claim, the employee must prove that the firing would not have taken place when it did if the employee had not filed the claim.

Evidence proving that the employer’s decision to terminate was retaliatory can be circumstantial. For example, according to the court, if an employer is on record making negative statements about the employee’s injury or if there is evidence of discriminatory treatment compared to other employees with similar injury, a finding that the employer’s actions were unlawful can be proper. Also, evidence that the employer failed to follow an established company policy in some respect or evidence that the employer’s stated reason for the termination is not true can be sufficient proof that the employer violated the law.

However, evidence that the employer terminated the employee pursuant to “[u]niform enforcement of a reasonable absence-control [policy]” is evidence that the firing was not retaliatory and therefore not in violation of the law. This is true even if there is circumstantial evidence that the firing was retaliatory. This was true of the case recently before the Supreme Court. In that case, the employer had a policy providing that employees would be terminated after 12 weeks. Because the 12-week policy was enforced uniformly, the evidence supported a finding that the employer’s decision to terminate the employee was not retaliatory.

Contact a Texas employment retaliation lawyer

If an employer takes adverse action up to an including termination, against an employee for reporting workplace issues or filing a workers’ compensation claim in good faith, the employer may have violated Texas law, federal law or both. If you believe your employer has acted unlawfully in dealing with you, call the Law Offices of Kell A. Simon today at 512-898-9019 or reach out online to schedule a free case review.