Green v. Lowe's Home Centers Inc.

The employer's offer of a lighter duty, lower-paying position, in light of the actual accommodations it made to the plaintiff after he returned from his injury, does not create a fact issue regarding whether it expressed a negative attitude toward his injury.

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Click here for the full text of this decision FACTS:Robert Green worked at a Lowe’s in Houston as an appliance salesman. Green was the top salesman in the area, and his job required him not only to interact with customers but also to retrieve the appliances from the storage area and more them from one area to another. In June 2003, Green injured his hand when a refrigerator fell on it. Lowe’s gave Green a Lowe’s credit card to use at the hospital emergency room, and it filed a workers’ compensation claim on Green’s behalf. Lowe’s also granted Green paid medical leave. When Green’s physician released him to work two months later, it was with the restriction that Green could not push, pull, lift, climb, grasp or operate heavy machinery. Though Green returned to his previous position, Lowe’s offered Green a job as a door greeter, which paid 37 percent less than the sales job, to accommodate his physical limitations. The human resources director, Mary Latona, then offered Green the choice of either the door-greeter position or his same sales job � at the same rate of pay � though another person would be hired to perform the physical aspects of the job. Green stayed at his sales job. On Oct. 20, Lowe’s received a call on its anonymous line for reports of harassment that Green had been sexually harassing several female employees. The caller gave specifics of Green’s conduct and stated that some of the people he did this to may not have felt comfortable going public with their allegations because management seemed to favor Green. Latona conducted an investigation into Green’s behavior. She took statements from four women who regularly worked with Green. One said he hugged her against her wishes, made comments about having sex with her or how he would have oral sex with other women. A second woman said Green kissed and hugged her twice each, gave her a massage and invited her out for dinner and drinks; she added that she got a ride once with Green because her car was broken and that she hadn’t heard Green make similar comments to other women. A third woman said Green hugged her very tightly, made comments about the size of his penis and of women’s breasts, and said he was a “pimp” who would pay women to have sex with him. A fourth woman said she had never seen Green hug or kiss anyone, that he had not offered anyone sex for money in her presence and that he seemed like a nice person. Green denied the conduct or said that some of the physical contact was consensual. After the investigation, and based on the zero-tolerance policy for harassment at Lowe’s, Latona fired Green. Green sued Lowe’s claiming Lowe’s fired him in retaliation for filing a workers’ compensation claim; the sexual harassment allegations were a pretext for the wrongful conduct of Lowe’s, he alleged. The trial court granted summary judgment for Lowe’s, and Green appeals. HOLDING:Affirmed. The court addresses Green’s first contention: whether he has established the causal link between his termination and his worker’ compensation claim necessary to establish his prima facie case of discrimination. Though it is undisputed that Lowe’s knew of Green’s workers’ compensation claim, knowledge of that fact does not by itself establish a causal link between the firing and the filing sufficient to defeat summary judgment. Consequently, the court examines whether Green raises a fact issue indicating that the knowledge of Green’s claim led Lowe’s to fire him. The court rejects Green’s argument that Lowe’s exhibited a negative attitude toward him just because it offered him a job as a door greeter, with less pay, when he first returned to work. Seeing as how Green was allowed to remain in his previous position, at the same rate of pay but with fewer duties, Lowe’s made actual accommodations to suit Green after his injury, which does not show a negative attitude toward him. The court also rejects Green’s argument that Lowe’s did not follow its own policy when it investigated the sexual harassment claims against him. The court notes that Green’s behavior, if true, satisfied the company definition of sexual harassment because Green’s behavior was inappropriate and unwanted. The court also notes that Lowe’s did not violate any company policy by not investigating the accusers themselves. The Lowe’s employment guide does not state that an employee who does not immediately report sexual harassment will be investigated or that a failure to report sexual harassment will be grounds for termination. Furthermore, Green presents no evidence that other employees found to have been engaged in sexual harassment after an investigation continued working at Lowe’s despite the findings of the investigation. The court then rejects Green’s argument that he was treated less favorably than similarly situated employees because his accusers were not investigated for not immediately reporting the incidents. The court points out that the accusers are not similarly situated employees. Nor has Green proved that Lowe’s routinely does investigate such accusers. Turning to whether Green rebutted Lowe’s legitimate, nondiscriminatory explanation of sexual harassment by demonstrating that his termination was retaliatory in nature, the court finds Green presents no evidence of Lowe’s awareness of any complaint of harassment before the tip line call; nor does the summary judgment record reveal the dates of the alleged harassment. “Green has failed to present a scintilla of evidence to demonstrate that Lowe’s purported reason for terminating him was false, and Green’s subjective belief regarding the reason for his discharge is insufficient to raise a fact issue.” Finally, the court finds that a fact issue is not created by the temporal proximity between the filing of the workers’ compensation claim and the firing. Four months passed between the two events, and the court holds that four months, without additional information, does not raise a fact issue as to a causal link. OPINION:Bland, J.; Keyes, Alcala and Bland, J.J.

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