                                 NO. 12-12-00331-CV

                         IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

CURTIS MCCLENDON,                              §      APPEAL FROM THE 159TH
APPELLANT

V.                                             §      JUDICIAL DISTRICT COURT

DEEP EAST TEXAS PROPERTY
MANAGEMENT, LLC,
APPELLEE                                       §      ANGELINA COUNTY, TEXAS

                                 MEMORANDUM OPINION
       Curtis McClendon appeals the trial court’s summary judgment granted in favor of
Appellee Deep East Texas Property Management, LLC (Deep East). In one issue, McClendon
argues that the trial court erred in granting summary judgment in Deep East’s favor. We affirm.


                                        BACKGROUND
       Deep East is a property management company located in Lufkin, Texas, and is owned by
Charles Royston and his wife.     At all times pertinent to this appeal, Deep East had two
employees––McClendon, who was the property manager, and the office manager, May Dessa
Thomas. McClendon’s duties as property manager generally involved maintaining Deep East’s
rental properties.
       On July 26, 2011, McClendon reported to Thomas that he had injured his back while
moving a window air conditioning unit in conjunction with his duties as property manager.
Thomas contacted Royston, who told her to take McClendon to the emergency room. Afterward,
Thomas assisted McClendon in filing a workers’ compensation claim.
       McClendon returned to work several days after his injury under a doctor’s order
restricting him to light duty work.    But since there was no light duty work available for
McClendon to perform, Royston permitted McClendon to take a leave of absence. During this
time, McClendon sought medical treatment and reported to Deep East concerning his condition.
Deep East initially relied on independent contractors to perform the maintenance on the
properties that McClendon ordinarily would perform. But due to the added expense of hiring
these independent contractors and additional maintenance needs that arose during this time, Deep
East hired a new maintenance person to perform McClendon’s job duties and other duties until
he was able to return.
       On September 19, 2011, Royston and McClendon met at a Texas Burger restaurant in
Corrigan, Texas. Royston asked McClendon how he was doing. McClendon answered that he
had finished physical therapy and was waiting on the results of an MRI he had undergone that
morning. Without inquiring further about the prospect of McClendon’s returning to work,
Royston told McClendon that Deep East was terminating his employment because Royston did
not know when he would be able to return to work. In addition, according to McClendon,
Royston stated that he could no longer keep McClendon because “he didn’t know how long he
would be on workman’s comp.”
       On October 14, 2011, McClendon filed the instant suit against Deep East for retaliatory
discharge. Subsequently, Deep East filed both traditional and no evidence motions for summary
judgment. By its traditional motion, Deep East challenged McClendon’s evidence supporting the
element of causation under Texas Labor Code, Section 451.001. In its no evidence motion, Deep
East argued that McClendon lacked evidence to support its position that Deep East’s neutral
reason for terminating McClendon’s employment was untrue. Ultimately, the trial court granted
Deep East’s motions for summary judgment, and this appeal followed.


                                     SUMMARY JUDGMENT
       In his sole issue, McClendon argues that the trial court erred in granting summary
judgment in Deep East’s favor.
Standard of Review
       Because the propriety of summary judgment is a question of law, we review the trial
court’s summary judgment determinations de novo. See Valence Operating Co. v. Dorsett, 164
S.W.3d 656, 661 (Tex. 2005). The standard of review for a traditional summary judgment
motion pursuant to Texas Rule of Civil Procedure 166a(c) is threefold: (1) the movant must
show there is no genuine issue of material fact and he is entitled to judgment as a matter of law;



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(2) in deciding whether there is a disputed, material fact issue precluding summary judgment, the
court must take as true evidence favorable to the nonmovant; and (3) the court must indulge
every reasonable inference from the evidence in favor of the nonmovant and resolve any doubts
in the nonmovant's favor. See TEX. R. CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690
S.W.2d 546, 548–49 (Tex.1985); Palestine Herald-Press Co. v. Zimmer, 257 S.W.3d 504, 508
(Tex. App.–Tyler 2008, pet. denied).
       A defendant moving for summary judgment must either negate at least one essential
element of the nonmovant’s cause of action or prove all essential elements of an affirmative
defense. See Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). We are
not required to ascertain the credibility of affiants or to determine the weight of evidence in the
affidavits, depositions, exhibits and other summary judgment proof. See Gulbenkian v. Penn,
252 S.W.2d 929, 932 (Tex. 1952); Zimmer, 257 S.W.3d at 508. The only question is whether an
issue of material fact is presented. See TEX. R. CIV. P. 166a(c). Once the movant has established
a right to summary judgment, the nonmovant has the burden to respond to the motion for
summary judgment and present to the trial court any issues that would preclude summary
judgment. See, e.g., City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678–79
(Tex. 1979). When a trial court’s order granting summary judgment does not specify the ground
or grounds relied on for the ruling, summary judgment will be affirmed on appeal if any of the
theories advanced are meritorious. State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380
(Tex. 1993).
Workers’ Compensation Retaliation and Burden Shifting
       To support his cause of action for retaliatory discharge, McClendon was required to
demonstrate that his cause of action fell under Texas Labor Code, Section 451.001. See TEX.
LAB. CODE ANN. § 451.001 (West 2006). Section 451.001 states that an employer may not
discharge, or in any other manner discriminate, against an employee because that employee has
filed a workers’ compensation claim in good faith. See id.; Parker v. Valerus Compression
Svcs., LP, 365 S.W.3d 61, 66 (Tex. App.–Houston [1st Dist.] 2011, pet. denied). The purpose of
the statute is to protect a person entitled to workers' compensation benefits from retaliation for
exercising his statutory rights. See Parker, 365 S.W.3d at 66. An employee who shows a
violation of section 451.001 may recover “reasonable damages incurred by the employee as a
result of the violation.” TEX. LAB. CODE ANN. § 451.002 (West 2006).



                                                3
       Texas employs a burden shifting analysis for workers’ compensation retaliatory discharge
claims under section 451.001. Parker, 365 S.W.3d at 66; see, e.g., Benners v. Blanks Color
Imaging, Inc., 133 S.W.3d 364, 369 (Tex. App.–Dallas 2004, no pet.). As part of its prima facie
case, the employee “has the initial burden of demonstrating a causal link between the discharge
and the filing of the claim for workers' compensation benefits.” Terry v. S. Floral Co., 927
S.W.2d 254, 257 (Tex. App.–Houston [1st Dist.] 1996, no writ); see also Cont’l Coffee Prods.
Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996) (applying standard of proof for causation in
whistleblower actions to anti-retaliation claims under workers’ compensation); Wal-Mart Stores,
Inc. v. Amos, 79 S.W.3d 178, 184 (Tex. App.–Texarkana 2002, no pet.) (stating that as “an
element of a prima facie case for retaliatory discharge” employee must “demonstrate the causal
link between the discharge and the filing of the claim”); Dallas Cnty. v. Holmes, 62 S.W.3d 326,
329 (Tex. App.–Dallas 2001, no pet.) (stating that plaintiff must “prove a prima facie case” by
establishing that “he, in good faith, filed a workers' compensation claim, and there exists a causal
connection between the filing of the claim and the discharge or other act of discrimination”).
The employee does not need to show that the workers’ compensation claim was the sole reason
for the employer’s conduct; it is sufficient to demonstrate that but for the filing of the claim, “the
employer’s action would not have occurred when it did had the report not been made.” Cont’l
Coffee, 937 S.W.2d at 450; Parker, 365 S.W.3d at 67; Turner v. Precision Surgical, L.L.C., 274
S.W.3d 245, 252 (Tex. App.–Houston [1st Dist.] 2008, no pet.). In other words, the filing of the
workers’ compensation claim must be a reason for the employer’s adverse employment action,
but not necessarily the only reason. See Parker, 365 S.W.3d at 67.
       An employee may prove the causal link between the adverse employment decision and
the workers’ compensation claim by direct or circumstantial evidence. Jenkins v. Guardian
Indus. Corp., 16 S.W.3d 431, 436 (Tex. App.–Waco 2000, pet. denied).                  Circumstantial
evidence of the causal link includes (1) knowledge of the compensation claim by those making
the decision on termination, (2) expression of a negative attitude towards the employee's injured
condition, (3) failure to adhere to established company policies, (4) discriminatory treatment in
comparison to similarly situated employees, and (5) evidence that the stated reason for the
discharge was false. Cont’l Coffee, 937 S.W.2d at 451; Benners, 133 S.W.3d at 369. Little or
no lapse in time between the plaintiff’s compensation claim and the employer’s adverse
employment action is also circumstantial evidence of a retaliatory motive. Johnson v. City of



                                                  4
Houston, 203 S.W.3d 7, 11 (Tex. App.–Houston [14th Dist.] 2006, pet. denied); see also Green
v. Lowe's Home Ctr., Inc., 199 S.W.3d 514, 519 (Tex. App.–Houston [1st Dist.] 2006, pet.
denied) (stating that temporal proximity between assertion of protected right and termination
may be evidence of causal connection). This evidence is relevant for determining whether a
causal link exists, both in examining whether the employee established a prima facie case and the
ultimate issue of whether the employee proved a retaliatory motive for the adverse employment
action. See, e.g., Hertz Equip. Rental Corp. v. Barousse, 365 S.W.3d 46, 54–57 (Tex. App.–
Houston [1st Dist.] 2011, pet. denied) (reviewing circumstantial evidence identified in
Continental Coffee to determine whether evidence was legally and factually sufficient to support
finding of retaliatory discharge); Green, 199 S.W.3d at 518–523 (reviewing circumstantial
evidence identified in Continental Coffee to determine whether plaintiff established fact issue in
response to summary judgment motion).
       Once the employee establishes a prima facie claim, including a causal link, the burden
shifts to the employer to rebut the alleged discrimination by offering proof of a legitimate,
nondiscriminatory reason for its actions. Green, 199 S.W.3d at 519; Benners, 133 S.W.3d at
369.
       If the employer demonstrates a legitimate, nondiscriminatory reason, then the burden
shifts back to the employee “to produce controverting evidence of a retaliatory motive” in order
to survive a motion for summary judgment.           Green, 199 S.W.3d at 519; see also Tex.
Div.˗Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 314 (Tex. 1994) (employee must controvert
employer’s neutral explanation of employment decision based on direct or circumstantial
evidence). The employee must present evidence that the employer’s asserted reason for the
discharge or other adverse employment action was pretextual or “challenge the employer's
summary judgment evidence as failing to prove as a matter of law that the reason given was a
legitimate, nondiscriminatory reason.” Benners, 133 S.W.3d at 369. Summary judgment is
proper if the employee fails to produce controverting evidence. Parker, 365 S.W.3d at 68;
Terry, 927 S.W.2d at 257 (affirming summary judgment for employer because employee failed
to produce evidence of retaliatory motive to rebut employer’s neutral reason for firing her);
Benners, 133 S.W.3d at 369, 372 (holding summary judgment proper because employee failed
to raise a fact issue on retaliatory motive); Castor v. Laredo Cmty. Coll., 963 S.W.2d 783,




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785˗86 (Tex. App.–San Antonio 1998, no pet.) (holding employee failed to raise fact issue on
retaliatory motive despite indulging all inferences in his favor).
Evidence of Causation
       In its traditional motion for summary judgment, Deep East argued that the summary
judgment evidence establishes that the necessary causal connection to establish discrimination
under section 451.001 does not exist. In his response, McClendon argued that the summary
judgment record contains direct evidence that satisfies the causation element. Specifically,
McClendon contended that his deposition testimony concerning Royston’s use of the term
“workman’s comp.” in conjunction with his terminating McClendon’s employment is direct
evidence of causation sufficient to create a genuine issue of material fact. At his deposition,
McClendon testified as follows:

                 Q. All right. On September the 19th of 2011, you had a meeting with Mr. Royston, is
       that correct?

               A. Yes, sir.

               ....

               Q. How did the conversation come up? How did you know you were supposed to meet?

               A. I had called him after my MRI that morning and let him know that I did take it and
       they would have the results, they told me, within a few days or a week.

                And he called me back around I want to say 11:30, maybe 12:00 or so, and asked me did
       I want to meet for lunch.

               ....

               [Q.] Was the meeting cordial?

               A. Yeah. It was friendly, yeah.

               Q. Any hostility, animosity in the meeting?

               A. No . . . .

               Q. When y’all sat down to talk, who talked first, you or him?

               A. Well, actually, he asked me how things were going and I told him.

               Q. Okay. What did you tell him about how things were going?

               A. I told him about the MRI and that we was finished with the therapy until they come
       back with the MRI results. And - -

               Q. Let me back up. You told him that you had finished with the therapy, correct?



                                                      6
               A. Well - -

               Q. The physical therapy?

               A. Yes, sir. They stopped the therapy after it wasn’t working.

               ....

               Q. All right. So you told Mr. Royston that you were still waiting on the MRI results?

               A. Yes, sir.

               Q. What was said next?

                A. Mr. Royston told me that he had had - - earlier in his years had back problems and on
       a back injury, you didn’t know how long they would be until they healed, or if they ever healed,
       and that he couldn’t hold my position and he couldn’t afford to pay Ronnie whatever he was
       paying him to do construction work or whatever, contractual labor, so he was letting me go and
       giving Ronnie my position, because he did not know when I would be able to come back to work.

               ....

               A. Yes, sir. He said, “You can’t never tell about a back injury. And that’s when he told
       me about his injury and how long he had problems with it. And said that he didn’t know how long
       he could - - it would last, you know, if I would come back to work or not, so he had to do
       something with replacing me at my job.

              And I asked Mr. Royston, I said, “Well, I haven’t even been off two whole months yet,”
       you know, two full months. I said, you know, “We never gave it time to heal.”

                 And then I asked him, I said, “And I’m still under doctor’s care. Do you know that I’m
       still under the doctor’s care?”

               He said, “Yes.”

               And I said, “So, I mean, how am I not being able to keep my job?”

               And that’s when he told me that he couldn’t keep it because he didn’t know how long I
       would be on workman’s comp.


       On appeal, McClendon argues that there could be no reason for Royston to use the words
“workman’s comp.” unless that was the underlying reason for his decision to terminate
McClendon. He further contends that this interpretation is bolstered by the fact that Royston did
not wait to find out the results of the MRI performed on McClendon that morning. Deep East
responds that Royston’s use of these words indicates nothing more than his awareness of the
workers’ compensation claim, but does not amount to evidence of a causal link between
Royston’s decision to terminate McClendon and McClendon’s having filed a claim.




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       We do not consider Royston’s statement in a vacuum. Instead, we consider the statement
in the context of the entirety of the summary judgment record. Having done so, we note that
apart from Royston’s allegedly telling use of the term “workman’s comp.,” there is no other
evidence of record that indicates (1) Deep East or anyone associated with it had any animosity
toward McClendon for his filing a workers’ compensation claim, (2) anyone expressed a
negative attitude towards McClendon’s injured condition, (3) Deep East failed to adhere to
established company policies, or (4) the stated reason for the discharge, i.e., Royston, who had
experience with his own back injury, did not know when McClendon would be able to return to
work, was false.
       To the contrary, the evidence reflects that Royston told Davis to take McClendon to the
emergency room following his accident and that Davis, after McClendon was released from the
emergency room, assisted him in filing a workers’ compensation claim.              According to
McClendon’s own testimony, those associated with Deep East treated him congenially. When
McClendon took leave, Deep East initially hired independent contractors to perform his duties
and incurred greater expense as a result before having to hire another full time maintenance
person to fill in for McClendon during his leave. Finally, McClendon’s testimony concerning
the meeting that culminated in his termination does not reveal any evidence that tends to indicate
that Royston’s use of the term “workman’s comp.” was a revelation of his motivation for
terminating McClendon.      And despite McClendon’s assertions to the contrary, we do not
conclude that Royston’s declining to wait for the results of McClendon’s MRI when McClendon
already had been on leave for nearly two months bolsters McClendon’s interpretation of
Royston’s statement.
       In sum, there is evidence that Royston referred to “workman’s comp.” when he
terminated McClendon’s employment with Deep East.             But Royston’s mere reference to
“worker’s comp.,” without more, does not constitute evidence supporting the existence of a
causal connection between McClendon’s filing the workers’ compensation claim and his
discharge. If anything, Royston’s choice of words establishes no more than his knowledge that
McClendon had filed a workers’ compensation claim. And while knowledge of a workers’
compensation claim is considered as a factor in light of the record as a whole, it does not alone
establish a causal link between the alleged discriminatory behavior and the filing of a claim. See
Courtney v. Nibco, Inc., 152 S.W.3d 640, 644 (Tex. App.–Tyler 2004, no pet.); Lone Star Steel



                                                8
Co. v. Hatten, 104 S.W.3d 323, 327–28 (Tex. App.–Texarkana 2003, no pet.). Therefore, we
hold that the trial court did not err in granting Deep East’s traditional motion for summary
judgment.1 To the extent McClendon’s sole issue pertains to the trial court’s granting of Deep
East’s traditional motion for summary judgment, it is overruled.


                                                    DISPOSITION
         Having overruled McClendon’s sole issue in part, we affirm the trial court’s judgment.

                                                                          SAM GRIFFITH
                                                                             Justice

Opinion delivered March 31, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                    (PUBLISH)




         1
            Because we have held that the trial court did not err in granting Deep East’s traditional motion for
summary judgment on the issue of causation, we do not address whether the trial court erred in granting Deep East’s
no evidence motion for summary judgment regarding whether McClendon presented controverting evidence of a
retaliatory motive. See TEX. R. APP. P. 47.1.


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                                  COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                           MARCH 31, 2014


                                         NO. 12-12-00331-CV


                             CURTIS MCCLENDON,
                                   Appellant
                                      V.
                 DEEP EAST TEXAS PROPERTY MANAGEMENT, LLC,
                                   Appellee


                                Appeal from the 159th District Court
                    of Angelina County, Texas (Tr.Ct.No. CV-00889-11-10)

                      THIS CAUSE came to be heard on the oral arguments, appellate record
and briefs filed herein, and the same being considered, it is the opinion of this court that there
was no error in the judgment.
                      It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that all costs of this appeal are hereby adjudged
against the appellant, CURTIS MCCLENDON, for which execution may issue, and that this
decision be certified to the court below for observance.
                   Sam Griffith, Justice.
                   Panel consisted of Worthen, C.J., Griffith, and Hoyle, J.
