Appellate Employment Win for SMSM-Austin


August 27, 2014

On August 20, Texas’ Third Court of Appeals in Austin affirmed SMSM client Recon Services’ motion for summary judgment in an employment retaliation case.

Recon Services, Inc. employed the plaintiff as a roll-off truck driver until he was involved in a car wreck within the scope of his employment. Shortly after the wreck, Recon officials arrived at the scene and asked the plaintiff to take a drug test, which was consistent with Recon’s written company policy. Plaintiff denied being injured at the scene and refused to take the drug test. He was not treated by EMS, and all eye witnesses testified that he was not visibly injured in the accident. However, because he refused to take the drug test, he was terminated on the spot. Plaintiff later brought suit claiming he was in fact injured in the accident and Recon had terminated him in retaliation for filing a good faith claim for workers’ compensation.

Texas law on this issue was unfavorable to Recon because it holds that mere knowledge of a worker’s injury is sufficient to put an employer on notice of a potential workers’ compensation claim even before the claim is formally filed. However, no Texas appellate court had ever addressed the issue of whether knowledge of an accident alone—regardless of whether the employee was actually injured in the accident—was sufficient to warrant statutory protection from termination. The Third Court of Appeals agreed with our argument that an accident alone is not sufficient to impute knowledge of an injury onto an employer in this context.

After several depositions and written discovery, JR Skrabanek drafted and briefed Recon’s MSJ with former Segal McCambridge partner Shelly Masters.  The MSJ was granted by the trial court, and Skrabanek and Masters then briefed the appeal before the Third Court of Appeals.  The result is a solid win for SMSM and its client.

The court’s opinion can be found here.