## Facts

- Vergie Swearingen was an hourly employee at Owens-Corning Fiberglas Corp. (OCF) in Waxahachie, Texas and was covered by a collective bargaining agreement (CBA).
- On February 28, 1986, Swearingen suffered a work-related injury and sought and received workers’ compensation benefits.
- Swearingen remained off work for medical reasons for approximately four years.
- The CBA contained an absence-control provision stating that an employee would lose seniority rights if off work for twenty-four consecutive months.
- On September 26, 1988, OCF sent Swearingen a letter terminating her effective that day because her medical leave exceeded twenty-four months under the CBA provision.
- In spring 1990, after being medically released to return with restrictions, Swearingen attempted to return to work but had already been terminated.
- Swearingen sued OCF under Texas’s workers’ compensation anti-retaliation statute, Tex. Rev. Civ. Stat. art. 8307c, alleging she was discharged for pursuing workers’ compensation benefits; the district court entered a take-nothing judgment for OCF.

## Issues

1. Whether the Fifth Circuit should certify to the Texas Supreme Court the question of how art. 8307c applies to a discharge pursuant to a CBA absence-control policy after a job-related injury.
2. Whether termination under a facially neutral, collectively bargained absence-control provision constitutes retaliatory discharge under art. 8307c when the absence stems from a compensable injury.
3. Whether Swearingen produced sufficient evidence that her workers’ compensation activity was a determining factor (causal link) in OCF’s decision to terminate her.

## Decision

- The Fifth Circuit declined to certify the issue to the Texas Supreme Court.
- The court affirmed the district court’s take-nothing judgment for OCF.
- The court held Swearingen failed to prove OCF terminated her for a reason prohibited by art. 8307c.
- The court concluded that applying the CBA’s absence-control provision, without evidence of retaliatory motive or pretext, did not violate art. 8307c.

## Legal Principles

- Texas’s workers’ compensation anti-retaliation statute is a narrow exception to employment-at-will and prohibits discharge or discrimination because an employee engages in protected workers’ compensation-related conduct (including filing a claim).
- A plaintiff must establish a causal connection between protected workers’ compensation activity and the adverse employment action; temporal sequence alone is insufficient.
- An employer may defeat a retaliation claim by showing a legitimate, non-retaliatory reason for discharge, including enforcement of a facially neutral absence-control policy.
- Enforcing a uniformly applied, collectively bargained absence-control rule does not, by itself, establish retaliation even if the absence results from a compensable injury.

## Conclusion

The Fifth Circuit held that termination pursuant to a neutral CBA absence-control provision did not violate Texas’s workers’ compensation anti-retaliation statute absent proof that the employee’s protected workers’ compensation activity caused the discharge, and it affirmed judgment for the employer.


Swearingen v. Owens-Corning Fiberglas Corp., 968 F.2d 559 (5th Cir. 1992)