                                                                                         ACCEPTED
                                                                                    12-14-00155-CV
                                                                        TWELFTH COURT OF APPEALS
                                                                                     TYLER, TEXAS
                                                                               3/19/2015 1:12:55 PM
                                                                                       CATHY LUSK
                                                                                             CLERK


                   NO. 12-14-00155-CV
                                                  FILED IN
 IN THE TEXAS COURT OF APPEALS FOR THE TWELFTH   DISTRICT
                                           12th COURT  OF APPEALS
                      TYLER, TEXAS              TYLER, TEXAS
                                                           3/19/2015 1:12:55 PM
                               * * * * *                        CATHY S. LUSK
                                                                    Clerk

BRENDA BREWER, DEANNA MEADOR, PENNY ADAMS, and SABRA
                      CURRY

                                                APPELLANTS

                                   V.

                 LOWE’S HOME CENTERS, INC.,

                                                APPELLEE

                             * * * * *
              On Appeal from the 3rd Judicial District Court
                      Anderson County, Texas
                  District Court Cause No. 3-41083
                             * * * * *

                       APPELLANTS’ BRIEF


                    Respectfully submitted,

   Matthew R. Pearson                   Brendan K. McBride
   State Bar No. 0078817                State Bar No. 24008900
   mpearson@gplawfirm.com               Brendan.mcbride@att.net
   GRAVELY & PEARSON, LLP               THE MCBRIDE LAW FIRM of counsel
   425 Soledad, Suite 600                to GRAVELY & PEARSON. LLP
   San Antonio, Texas 78205             425 Soledad, Suite 620
   (210) 472-1111 Telephone             San Antonio, Texas 78205
   (210) 472-1110 Facsimile             (210) 472-11111 Telephone
                                        (210) 881-6752 Facsimile

                 ATTORNEYS FOR APPELLANTS


                                                                                  1
           IDENTITY OF PARTIES AND COUNSEL


                            Parties
Brenda Brewer                   Appellants
Deanna Meador
Penny Adams
Sabra Curry
                                Appellee

Lowe’s Home Centers, Inc.

                            Counsel

Matthew Pearson
GRAVELY & PEARSON, LLP
425 Soledad, Suite 600
San Antonio, Texas 78205
(210) 472-1111 Telephone
(210) 472-1110 Facsimile
mpearson@gplawfirm.com          Appellate and Trial Counsel for Appellant


Brendan K. McBride
The MCBRIDE LAW FIRM
Of counsel to GRAVELY &
PEARSON, LLP
425 Soledad, Suite 620
San Antonio, Texas 78205
(210) 472-1111 Telephone
(210) 881-6752 Facsimile
Brendan.mcbride@att.net         Appellate Counsel for Appellant


Holly Williamson
Jamilah Mensah
Hunton & Williams, LLP
700 Louisiana, Ste. 4200
Houston, Texas77002
(713) 229-5700 Telephone        Counsel for Appellee, Lowe’s Home
(713) 229-5750 Facsimile        Centers, Inc.

                                                                      2
                                              TABLE OF CONTENTS
                                                                                                                                Page
TABLE OF CONTENTS .................................................................................................... 3
TABLE OF AUTHORITIES .............................................................................................. 5
STATEMENT OF THE CASE .......................................................................................... 7
THE RECORD ...................................................................................................................... 8
ISSUES PRESENTED ......................................................................................................... 9
STATEMENT OF FACTS ................................................................................................ 10
   Brenda Brewer ...................................................................................................................... 10
   Deanna Meador .................................................................................................................... 13
   Penny Adams ....................................................................................................................... 15
   Sabra Curry ......................................................................................................................... 17
   Lowe’s Management Seeks “Lowe’s Next Customers” ........................................................... 19
SUMMARY OF THE ARGUMENT ............................................................................... 25
ARGUMENT AND AUTHORITIES ............................................................................. 28
   I. STANDARD OF REVIEW FOR DIRECTED VERDICT ................................................. 28
   II. THE EVIDENCE RAISES A GENUINE ISSUE OF FACT AS TO WHETHER
       APPELLANTS’ WORKERS’ COMPENSATION CLAIMS WERE A CAUSE OF THEIR
       TERMINATIONS. ........................................................................................................... 30
        A. The Evidence Shows Lowe’s Management Forced The Employees To Work
           Against Their Light Duty Restrictions In Order to Make Them “Lowe’s
           Next Customers.” ................................................................................................. 34
              1. Knowledge of the Claims ..................................................................................... 35
              2. Expression of negative attitude towards injury ..................................................... 36



                                                                                                                                       3
              3. Failure to adhere to company policies ................................................................... 37
              4. Discriminatory treatment compared to other employees .......................................... 39
        B. The Evidence Supports That the Leave of Absence Policy Was A False
           Pretext; Policy Was Not Even Followed. .......................................................... 41
PRAYER ............................................................................................................................... 48
CERTIFICATE OF SERVICE .......................................................................................... 50
CERTIFICATE OF COMPLIANCE................................................................................ 50




                                                                                                                                     4
                                             TABLE OF AUTHORITIES
                                                                                                                                     Page
Cases
Armendariz v. Redcats USA, L.P., 390 S.W.3d 463 (Tex. App. – El Paso 2012, no pet.)
 ............................................................................................................................................. 33
Aust v. Conroe Indep. Sch. Dist., 153 S.W.3d 222 (Tex. App. – Beaumont 2004, no pet.)
 ............................................................................................................................................. 33
Baptist Memorial Healthcare Sys. v. Casanova, 2 S.W.3d 306 (Tex. App.--San Antonio
  1999, pet. denied).............................................................................................................. 41
Benners v. Blanks Color Imaging, Inc., 133 S.W.3d 364 (Tex. App. – Dallas 2004, no pet.)
  .................................................................................................................................29, 31, 32
Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227 (Tex. 2004)........ 27, 28
Collora v. Navarro, 574 S.W.2d 65 (Tex. 1978) ................................................................... 27
Cont'l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444 (Tex. 1996) .................................passim
Dallas Cnty. v. Holmes, 62 S.W.3d 326 (Tex. App. – Dallas 2001, no pet.) ..................... 30
Darpino v. T.D.C.J.-I.D., No. 12-03-00021-CV, 2003 Tex. App. LEXIS 10097, 6, 2003
 WL 22839250 (Tex. App. – Tyler 2003, no pet.)(mem. op.)....................................... 27
Deveaux v. Compaq Computer Corp., No. 01-95-01104-CV, 1996 Tex. App. LEXIS 4308,
 15, 1996 WL 531959 (Tex. App. – Houston [1st Dist.] 1996, no writ) ...................... 44
Echostar Satellite, L.L.C. v. Aguilar, 394 S.W.3d 276 (Tex. App. – El Paso 2012, pet.
  denied) .......................................................................................................................... 40, 45
Farlow v. Harris Methodist Fort Worth Hosp., 284 S.W.3d 903 (Tex. App. – Fort Worth
  2009, pet. denied).............................................................................................................. 27
Graham v. Atlantic Richfield Co., 848 S.W.2d 747 (Tex. App. – Corpus Christi 1993, writ
 denied) ................................................................................................................................ 27
Green v. Lowe’s Home Ctrs., Inc., 199 S.W.3d 514 (Tex. App. – Houston [1st Dist.] 2006,
 pet. denied) .................................................................................................................. 31, 32




                                                                                                                                             5
Hertz Equip. Rental Corp. v. Barousse, No. 01-10-00949-CV, 365 S.W.3d 46 (Tex. App. –
 Houston [1st Dist.] 2011 pet. denied) ............................................................................. 31
In the Estate of Allen, 301 S.W.3d 923 (Tex. App. – Tyler 2009, orig. proceeding) ...... 28
Jenkins v. Guardian Indus. Corp., 16 S.W.3d 431 (Tex. App. – Waco 2000, pet. denied) 30
Kings Aire, Inc. v. Melendez, 416 S.W.3d 898 (Tex. App. – El Paso 2013, pet. filed)40, 43,
  44, 45
Omoro v. Harcourt Brace & Co., No. 05-96-01454-CV, 1999 Tex. App. LEXIS 133, 1999
 WL 10388, at *3 (Tex. App. – Dallas 1999, no pet.)(mem. op.) ................................. 41
Parker v. Valerus Compression Servs., LP, 365 S.W.3d 61 (Tex. App. – Houston [1st Dist.
  2011, pet. denied)..................................................................................................31, 32, 44
Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74 (Tex. 2000) ................. 27
Selgas v. Henderson County Appraisal Dist., No. 12-10-00021-CV, No. 12-10-00050-CV,
  2011 Tex. App. LEXIS 9091, 4, 2011 WL 5593138 (Tex. App. – Tyler 2011, pet.
  denied)(mem. op.) ............................................................................................................. 27
Terry v. S. Floral Co., 927 S.W.2d 254 (Tex. App. – Houston [1st Dist.] 1996, no writ)29,
  44
Tex. Div.-Tranter, Inc. v. Carrozza, 876 S.W.2d 312 (Tex. 1994) ....................................... 32
Tex. Mun. Power Agency v. Pub. Util. Comm'n, 253 S.W.3d 184 (Tex. 2007) ..................... 27
Turner v. Precision Surgical, L.L.C., 274 S.W.3d 245 (Tex. App. – Houston [1st Dist.]
  2008, no pet.)..................................................................................................................... 30
Wal-Mart Stores, Inc. v. Amos, 79 S.W.3d 178 (Tex. App. – Texarkana 2002, no pet.) .. 30
White v. Southwestern Bell Tel. Co., 651 S.W.2d 260 (Tex. 1983) ........................................ 28




                                                                                                                                    6
                 STATEMENT OF THE CASE

Nature of the Case:        This is a workers’ compensation retaliation
                           case arising out of the termination of four
                           employees of Lowe’s Home Centers, Inc.
                           (“Lowe’s), who required the employees to
                           work contrary to their work restrictions,
                           effectively refusing to allow them to come
                           back to work on “light duty” in order to mis-
                           categorize the four employees as taking
                           “personal leave,” and ultimately terminating
                           them under what Lowe’s claims was its
                           “absence control policy.”

Trial Court:               The 3rd Judicial District Court of Anderson
                           County, Hon. Deborah Oaks Evans,
                           presiding.

Trial Court Disposition:   The case was called for trial on March 11,
                           2014. At the close of the plaintiffs’ case-in-
                           chief on March 14, 2014, the trial court
                           granted a directed verdict in favor of Lowe’s
                           and orally rendered judgment that the
                           plaintiffs take nothing. (RR6:98-99, Tab 1;
                           CR6:307) On May 12, 2014, the trial court
                           rendered a take nothing judgment dismissing
                           all of the plaintiffs’ claims against Lowe’s.
                           (CR6:307-309, Tab 2)




                                                                      7
                                    THE RECORD
         The record on appeal consists of a six-volume, Clerk’s Record containing the
pertinent papers filed in the Anderson County District Court proceedings below in
“.pdf”     format.     References   to   the   Clerk’s   Record   will   be   cited      as
“(CR[Volume]:[Page(s)]).”       There is also a seven-volume Reporter’s Record
containing the transcripts of trial and related proceedings before the district court as
well as the exhibits offered into evidence. References to the Reporter’s Record will be
cited as “(RR[Volume]:[Page(s)]).” Some materials are duplicated and attached for the
Court’s convenience in the Appendix to this Brief, and shall be cited to as necessary.




                                                                                      8
                              ISSUES PRESENTED

        Lowe’s moved for directed verdict on the ground that the plaintiffs had not
proven causation and that their claims were precluded because they were terminated
under Lowe’s “absence control policy.” (RR6:89-90) The trial court granted Lowe’s a
directed verdict on Appellants’ claims for workers’ compensation retaliation because
the trial court found there was no evidence of causation. (RR6:99).

Issue One:

      Did the trial court err in granting a directed verdict where there was
      more than a scintilla of evidence on all five of the Cont’l Coffee factors
      from which a jury may infer causation?

      Considering all of the evidence on the record, as this Court must, there
      is more than a scintilla of evidence that the employees’ workers’
      compensation claims were a cause of their terminations. There is
      evidence that Lowe’s deliberately worked employees against restrictions
      to force employees to take additional leave that Lowe’s mis-characterized
      as personal leave without the employees’ request or knowledge, and to
      ultimately justify terminating the claimants’ employment under the false
      pretext of Lowe’s “absence control policy” even though Lowe’s did not
      follow that policy for any of the four employees.

Issue Two:

      Did the trial court err in granting a directed verdict based on Lowe’s
      argument that it was merely enforcing a neutral “absence control policy,”
      where there was more than a scintilla of evidence that Lowe’s did not
      follow the policy with regard to these four employees, there was
      evidence that Lowe’s had a retaliatory motive, and where there was other
      evidence that the absence control policy was a false pretext?




                                                                                   9
                            STATEMENT OF FACTS

      This is a Worker’s Compensation retaliation claim brought under Tex. Lab.

Code §451.001. The four Appellants – Brewer, Adams, Curry and Meador – were all

employed at Lowe’s store in Palestine, Texas.

Brenda Brewer

      Brenda Brewer was hired by Defendant on December 5, 2006 as a sales

associate in the Tools department at the Palestine store. (RR4:104-105; 8:8) On June

12, 2007, Brewer sustained an on-the-job injury while working in the tools

department. She was picking up a heavy vice, one of 33 vices weighing more than 75

pounds each, when she felt her back “pop,” causing her enormous pain and making

her drop to her knees. (RR4:108) Brewer reported the injury to the HR manager,

Janice Hardy, who advised her to sit down for a break to see if the pain would

subside. (RR8:8)    When the pain became unbearable, a co-worker filled out the

injury paperwork, and Brewer went home. (RR4:108; 8:8-10)

      Brewer had no prior back injuries or problems before this on-the-job injury in

June 2007. (RR4:108) She saw a doctor about her back injury and was put on “light

duty” restrictions for work. (RR4:108-110)      On November 19, 2007, Brewer was

offered a new light duty position at the “credit card table” and as “telephone

operator,” not to lift over ten pounds and with hourly stretch breaks – a position that

Brewer accepted. (RR8:17; 4:110) Had Lowe’s allowed Brewer to perform this light

duty work position, she would have been physically able to do the job. (RR4:110)

                                                                                    10
      However, when Brewer got back to work, Lowe’s refused to follow the

restrictions. Rather than stay at the credit card table and phone operator stations,

Lowe’s required her to work as a cashier by the Store Manager Julio Gonzalez and

Operations Manager Nick Boren. (RR4:111) Despite Brewer reminding them that

she was on physical restrictions, Lowe’s managers required her to bend to scan

merchandise and lift heavy items like cabinets out of carts. (RR4:112) Despite her

restricted job as a phone operator, Brewer was then transferred to the back of the

store to work in “receiving” as often as twice a week, where new merchandise arrived

for sale and had to be checked in to the computer. (RR4:112-13) She was told that

she would have to lift heavy items coming off of the trucks as part of her job in

receiving and told she “could seek employment somewhere else” if she could not do

it. (RR4:113)

      On one occasion Brewer’s back was hurting so badly from the work that she

went to the new HR manager who asked to see her limitation sheet. When she

showed it to him, he told her to “get that the blank out of [my] face,” he did not want

to see it. (RR4:114) Brewer was told the same thing by an employee in the receiving

department when she showed him her restrictions – he threw her restrictions back at

her, saying “he didn’t want to see this shit.” (RR4:126) Almost every other day

Brewer was required to work against her restrictions, which worsened her back injury.

(RR4:115) Brewer informed her doctor that she was being required to work against



                                                                                    11
her restrictions, which was documented in her medical records in February 2008.

(RR4:117; 7:258-59)

      In April, Lowe’s offered Brewer a different “light duty” position back in the

Tools department, with the restrictions that she “not lift/carry objects more than 10

lbs.” or work more than six hours per day. (RR8:13) Brewer could have performed

this job as well had Lowe’s followed the restrictions. (RR4:119) Again, Lowe’s

disregarded the restrictions, requiring her to work at the dock climbing tall ladders

while lifting and carrying tools that weighed more than ten pounds. (RR4:121-23)

Lowe’s managers, Gonzalez and Boren, would not allow her to take the short breaks

her physical restrictions required. (RR4:121) When she complained about the work

going beyond her physical restrictions, Boren confronted her in the back of the store

and told her to “cowgirl up” and she could do “the job I told you to do or you can

seek your employment somewhere else.” (RR4:123)

      Brewer continued working in violation of her restrictions culminating in a

second back injury on October 29, 2008, while Brewer was working back in receiving

again, lifting items off of trucks and checking them into the computer. (RR4:129) By

February 2009, Brewer was in so much pain that she was no longer able to physically

work and went on leave. (RR4:130) She saw a neurosurgeon in March 2009 who put

her on more restrictions – not to lift more than 10 lbs., not to work any shift longer

than 6-7 hours, no more than 4 shifts per week, regular breaks every 2 hours and limit

work requiring stooping, bending and twisting or excessive walking. (RR8:16) Brewer

                                                                                   12
showed the revised restrictions to Lowe’s, which was unable to provide any work that

would stay within her physical restrictions. (RR8:131) Brewer remained on leave until

October 31, 2009, when she was informed by Lowe’s that she was being terminated

for exceeding her maximum leave of 240 days. (RR4:132) Brewer received no

warning that Lowe’s would terminate her for exceeding her maximum leave time.

(Id.)

Deanna Meador

        Deanna Meador began working for Lowe’s in December 2004 as a plumbing

specialist. (RR3:30) Meador was eventually promoted to Department Manager for

plumbing and electrical in December 2006. (RR3:35)

        On October 8, 2007 Meador was helping a customer load merchandise onto a

flat cart when she felt a pull in her lower back and a “pop.” (RR3:43) She reported it

to her Zone Manager, Mick Bohem, and filled out a workplace injury report.

(RR3:43-44; 8:195) Meador went to the emergency room for treatment and was put

on “light duty” physical restrictions – she was not to lift anything over 20 lbs, was not

to do work requiring kneeling/squatting, bending/stooping, pushing or pulling heavy

objects or climbing stairs and ladders. (RR3:44-47; 8:200)

        Meador explained that her job as electrical and plumbing department manager

consisted mostly of tracking sales, overseeing and supervising sales staff and filling out

paperwork, and that she could have continued in that position if Lowe’s had allowed

her to have other employees perform the sort of manual labor that was outside her

                                                                                       13
restrictions. (RR3:41-43, 47) However, as with Brewer, Lowe’s managers ignored the

restrictions. Meador was pressured by Gonzalez to work outside her restrictions,

climbing ladders and carrying merchandise. (RR3:49) She overheard Gonzalez telling

Bohem that if she could not do her job then she would need to find other

employment, that she was taking up too many hours they needed elsewhere in the

store and they wished Meador “just would quit.” (RR3:50)

      Operations Manager, Nick Boren, made similar comments to Meador as he had

to Brewer – to “cowgirl up,” – telling her to carry and load freight and that they did

not care what she had to do, she had to get the job done even though they were

requiring her to exceed her restrictions. (RR3:52-53; 4:13-14) Gonzalez likewise

would tell her to load heavy freight and put it away despite her restrictions, even

pressuring her to do it faster even after she reminded him of her light duty work

restrictions. (RR4:11-13) Meador was also often left to load heavy merchandise on

her own, despite requesting assistance. This included 50-pound bags of concrete and

assembled toilets that weighed up to 120 pounds each. (RR4:10-12) On one occasion,

after informing Boren that some of her freight was too heavy for her work

restrictions, Boren informed Meador she had to do it anyway or come by his office

chiding her that she was a “big girl” and she could get it done by herself when she

asked for assistance. (RR4:14) Meador was continually asked to work against her

restrictions. (RR4:17) She reported this to the HR department, but nothing was ever

done about it. (RR:4:16)

                                                                                   14
      Meador continued to be worked against her restrictions by Lowe’s as the

department manager in plumbing and electrical up until Lowe’s demoted her to

“credit coordinator” in June 2009. She was told by the new store manager, Mr.

Hooker, that she could no longer work on the sales floor any longer because of her

physical limitations. (RR4:18-19) That did not stop Lowe’s from making Meador

continue to work beyond her restrictions. (RR4:21) Meador finally took a leave from

work to have back surgery in December 2010. (RR4:22) Three months after the

surgery Meador tried to return to work at Lowe’s and was told by the HR manager

that she could have a position as a phone operator that would fit within her

restrictions. (RR4:24) A week later, Lowe’s HR manager told Meador that she would

not be allowed back to work at all without a full release from her doctor – not even

for light duty work. (Id.)

      On January 30, 2012, Meador received a letter from Lowe’s informing her that

her employment was terminated effective January 16, 2012 because she had exceeded

the permissible 365 days of leave. (RR4:27) Meador received no notice or warning

that she was on a leave that could result in her termination prior to receiving notice

that she was terminated. (RR4:28)

Penny Adams

      Penny Adams began her employment with Lowe’s in December 2006 as a sales

associate in the inside gardening department – selling lawn mowers and other

gardening equipment, fertilizers and pesticides, as well as seasonal and Christmas

                                                                                   15
items. (RR4:179) Over the course of her employment with Lowe’s Adams suffered

three on-the-job injuries. The first was a mild back injury that occurred while she was

unloading a truck in receiving. (RR4:184) This injury did not require her to miss any

work or go on light duty restrictions, but she did have some physical therapy to help

strengthen her back. (RR4:185) In March 2008, Adams was lifting a large plant in the

garden center when she fell onto a cinder block and broke her back. (RR4:186)

      After taking time off from work, she returned with light duty restrictions and

was offered a position that ostensibly complied with her physical restrictions in the

receiving area, with the restriction that she not lift more than 10 pounds and no

kneeling, squatting, bending, stooping, pushing pulling, twisting, or climbing stairs.

(RR4:187; 7:246) As with Brewer and Meador, Lowe’s refused to recognize Adams’s

work restrictions. She was required to bend, twist and kneel and push and pull

merchandise in order to check it in at the receiving dock. (RR4:188) She was regularly

required to lift more than ten pounds. (Id.)

      When Adams reported to supervisors that she was having to work beyond her

physical restrictions she was told to put her “big girl panties on” and pull up her

bootstraps, and “if you’re a liability, you’re going to be the next Lowe’s customer.”

(RR4:191) Adams reported the situation to HR where she was assured they were

getting additional help, which never came. (RR4:191-92)

      A few months later Adams suffered her third on-the-job injury. In July 2008

she re-injured her back while helping to load portable outdoor storage buildings.

                                                                                    16
(RR4:194) She was still supposed to be on light duty at the time because of her prior

injury. (Id.) Yet, despite her additional back injury, Lowe’s continued to require

Adams to work against her restrictions. This included helping customers load heavy

items like fertilizer bags because there was no one else on the sales floor who would

respond to Adams’ requests for assistance with a customer.       (RR4:196) Managers,

including Gonzalez and Boren, would regularly make comments indirectly intended to

pressure Adams into exceeding her restrictions and chiding her to work faster doing

work that she should not have been doing at all. (RR4:197-200)

      By February 2009, Adams back had taken all it could and she took time off

from work to get treatment for scoliosis, which had been made worse by her back

injuries at Lowe’s. (RR4:201) She was notified in October 2009 that her employment

was terminated for exceeding Lowe’s 240-day maximum leave of absence period.

(RR4:201; 7:252) As with Brewer and Meador, Adams also received no warning that

she was going to be terminated for exceeding the leave of absence period permitted

under Lowe’s policy until after she had already been terminated. (RR4:203)

Sabra Curry

      Sabra Curry also went to work for Lowe’s in December 2006 as a receiving

clerk. (RR5:59) Her job was to unload the trucks at the receiving dock when they

delivered merchandise like paint, tiles, refrigerators, stoves and anything else sold by

Lowe’s and inventory those items as they entered the store. (RR5:60)



                                                                                     17
      Curry suffered a back and knee injury in October 2007, when a broken pallet

tipped over onto her from a forklift while unloading a truck bending her backward

over a tool pallet. (RR5:68) Curry went to see a doctor the next day who put her on

light duty restrictions. (RR5:69) Lowe’s offered Curry a job as an outside garden

sales associate, restricting lifting to 10 pounds and limited bending. (RR5:70; 8:108)

Curry frequently had to help customers load heavy items such as bricks, paving stones

and fertilizer because there were not enough employees to respond to requests for

help and the employee, Jesse, who was supposed to help her would not respond to

requests for assistance. (RR5:71)

      Though she was not expressly told to work against her restrictions, she was

pressured by managers to do so in indirect ways. (Id.) When she complained to

Gonzalez that she could not get help, Gonzalez told her she just had to get the job

done. (RR5:72) Her zone manager would pressure her to go see her doctor about

getting off of light duty so she could get back on the job. (RR5:74) When she

complained to Boren about working beyond her restrictions, he repeated the phrase

that was a fixture among managers at the Palestine store that she should “cowgirl up”

and that she needed to get the work done. (RR5:76)

      As had the others, Curry notified the HR department that she was being

worked against her restrictions, but nothing was ever done about it.         (RR5:76)

Despite her light duty restrictions, Curry was continuously worked contrary to her

restrictions. (RR5:77) By December 2008, Curry was in too much daily pain to

                                                                                   18
continue working and took leave. (RR5:79) She received her termination letter in

August 2009 noting the reason for termination was that she had exceeded the 240-day

maximum leave of absence period. (RR7:85) As with the other three employees,

there was no warning that she would be terminated under the leave of absence policy

prior to her letter of termination. (RR5:79)

Lowe’s Management Seeks “Lowe’s Next Customers”

      It was after her promotion in 2006 that Meador began attending manager

meetings and interacting directly with Palestine store manager Gonzalez after he

arrived around May 2007. (RR3:38-40) Because of this access, she was aware of the

store management’s approach to employees with Worker’s Compensation claims.

      For example, Gonzalez’s catch phrase was that he would find a way to make

injured employees “Lowe’s next customer” – i.e. make them no longer employees.

(RR3:51; 4:29-30) Gonzalez would complain that employees with workers’

compensation injuries and work restrictions were taking up hours needed for other

employees who could work without restrictions.      (RR4:30)   Gonzalez was also

concerned because payments for workers’ compensation benefits would count against

the store’s budgets and that this, in turn, was affecting his bonuses. (RR4:32) He

made these comments several times. (Id.) Several other managers at the Palestine

store made similar comments, including Boren and Bohem. (Id.) Their belief was

that because injured employees were cutting into managers’ bonuses, they should

become “the next Lowe’s customer.” (RR4:33)

                                                                                19
      Indeed, these discussions included the very employees involved in this case.

Meador listened to Gonzalez and Boren specifically discussing Brenda Brewer, saying

that he thought her injuries were exaggerated, she was taking up hours on the

schedule and not getting the job done. (RR4:33-34) Boren said similar things about

Penny Adams – that she was not hurt as badly as she claimed and he was tired of her

complaining and not getting her work done. (RR4:34) Boren, Gonzalez and Bohem

all complained about Sabra Curry, that her workers’ compensation claim was cutting

into their bonuses, she was not hurt as badly as she claimed and that she needed to

stop whining and get her job done. (RR4:35-36)

      These conversations were corroborated by Shelley Tinsley, another Zone

Manager at the Palestine store. Tinsely testified that Gonzalez, Boren and Bohem

would regularly discuss the legitimacy of employee injuries during upper management

meetings. (RR7:23) In these upper management meetings, however, Gonzalez was

less guarded about what was going on at the Palestine store. Tinsely testified that

Gonzalez intentionally moved injured workers around to try to get them to quit.

(RR7:24) Gonzalez complained about workers’ compensation affecting the bottom

line at the store and impacting manager’s bonuses. (RR7:24) He talked about how his

goal was to make employees who had filed for workers’ compensation “Lowe’s next

customers.” (RR7:25) This attitude toward workers’ compensation claimants filtered

into the department manager meetings as well, with managers regularly saying that if

injured workers cannot do their jobs they should be customers. (RR7:26)

                                                                                 20
      Tinsely also testified that discussions in these upper management meetings

often pertained to the four injured employees in this case. For instance, Gonzalez

and other managers questioned whether Brewer’s injury was sustained at Lowe’s and

talked about what could be done to make Brenda Brewer “Lowe’s next customer.”

(RR7:27) They also discussed their doubts that Penny Adams’s injury was sustained at

Lowe’s.   (RR7:28)    Tinsely also testified that she had personal knowledge that

Gonzalez, Boren and Bohem would work Meador beyond her physical restrictions.

(RR7:49) When it came to work beyond her restrictions, they “sent a message that

she needed to do it” and that she could be written up if she did not. (Id.)

Lowe’s Handling of Workers’ Compensation Claims and
The Leave of Absence Policy

      Lowe’s was “self-insured” for workers’ compensation claims. (RR5:203) The

claims were handled through a third party claims administrator, but the benefits were

actually paid by Lowe’s itself. (Id.) The cost of these claims were charged in part to

the local store’s budget. (RR5:211) That, in turn, impacted store managers’ bonuses,

which were on a stair-stepped plan keyed to the store’s success in meeting its

budgetary expectations. (RR:212-213) Even small, additional expenses could make a

significant difference in a manager’s bonuses under this program. (RR5:213-14) In

the case of the Palestine store, where all four of these employees worked, that

particular store had its highest number of workers’ compensation claims affecting its




                                                                                   21
budget in 2007-2008 (RR5:215) – the time period during which these four workers

were being made into Lowe’s next customers.

       Under Lowe’s official workers’ compensation policies and procedures, there

was a program to provide light duty work to injured and transitional employees.

(RR5:205-207) That included, consistent with Texas law, making offers of work to

injured employees to do light duty work consistent with their physical restrictions

placed by the employees’ doctors. (RR5:207)(“The employer will only assign tasks

consistent with the employee’s physical abilities, knowledge and skills and will provide

training if necessary.”)

       The reason for following those restrictions is in part to avoid reinjuring

employees and to facilitate healing from injuries.      (RR5:209)    Lowe’s corporate

representative admitted that working employees against restrictions could aggravate an

employee’s existing injuries. (RR5:209-210)(Q: “if someone deliberately works an

employee against their restrictions, there could be an increase of that employee

aggravating their injury? A: Yes.”)

       Lowe’s Leave of Absence policy provided for a number of reasons an

employee could take leave: because of a workers’ compensation-related injury, Family

Medical Leave, personal leaves, and personal medical leaves. (RR6:6) However,

under Lowe’s policy, there was no limit to the number of days of leave that would be

permitted for an injured employee with a workers’ compensation claim. (RR6:7-9)

However, if Lowe’s re-designates the employee as being on a personal leave instead of

                                                                                     22
a workers’ compensation leave, it then treats the employee as subject to the maximum

number of days allowed under the Leave of Absence policy and terminates those

employees ostensibly for violating the policy. (RR6:9-12)

      Under Lowe’s leave policy, a form has to be filled out either by the employee

or by someone at the store designating that the employee was taking personal leave,

and this would then be coded into Lowe’s computer system. (RR6:13-15) As part of

this process, the store is supposed to work through a personal leave checklist.

(RR6:17) So an employee taking personal leave would have a personal leave request

form and a personal leave checklist documenting that the leave policy was being

followed. (RR6:18) These would ordinarily be kept in the personnel records for the

employee. (RR6:19) A letter is then sent to the employee from Lowe’s main office in

North Carolina, informing the employee that they have been put on personal leave.

(RR6:20) Under the Leave of Absence Policy, each employee was also to receive a

letter warning specifically that they were nearing the end of the maximum amount of

personal leave under the policy. (RR6:20-21)

      For these four employees there were no leave of absence checklists in their

employment records. (RR6:22) Indeed, none of the leave of absence policy was

followed for these employees. For Brewer, there were no requests forms showing a

leave of absence was requested or a screen shot of the data entry when the leave was

started. (RR6:25, 28) When asked how Lowe’s was even able to calculate the start

date for the 240-day personal leave limit under which it terminated Brewer, Lowe’s

                                                                                 23
corporate representative could not answer. (RR6:25) Likewise, there was no request

form for Curry, Meador or Adams, or other documentation showing when they

started on the “personal leave” for which they were ostensibly terminated. (RR6:26-

27, 30, 31) As noted above, none of the employees were given the warning letters

required under the policy either – notifying them that they were about to exceed the

personal leave policy and be terminated. (RR4:28, 132, 203; 5:79)




                                                                                 24
                        SUMMARY OF THE ARGUMENT

       There was far more than a scintilla of evidence that Brewer, Meador, Adams

and Curry were terminated because they had made workers’ compensation claims and

that the non-retaliatory reason offered by Lowe’s was a false pretext. It was therefore

error to grant a directed verdict and deny Appellants a fair opportunity to present

their case to a jury.

       Specifically, there was evidence that Lowe’s management intentionally worked

employees against their light duty restrictions in order to force them into quitting or

taking additional medical leave that would then be improperly classified as personal

leave subject to a the maximum leave policy.

       The evidence showed that the store manager at the Palestine store specifically

intended to move injured employees with work-related injuries into – in his words –

“Lowe’s next customer.” The record further supports that Lowe’s management did

so to take the employees out of the workers’ compensation program where the

payments counted against the store’s budget and impacted the managers’ bonuses and

to free up more hours to give to employees who were not on light duty restrictions.

The effect of working employees against their restrictions and funneling them into

Lowe’s system as though they were on personal leave instead of workers’

compensation related leave was to trigger their termination under the Leave of

Absence policy.



                                                                                    25
      Had they been correctly treated as workers’ compensation claimants and not

worked against their restrictions, all four employees could have continued to perform

the light duty work assignments they were formally offered. They would not have

been forced into taking the additional leave that Lowe’s treated as violating the

maximum days of allowed personal leave – which did not apply to workers’

compensation-related leave.

      This evidence was sufficient to create a genuine issue of material fact on

causation under the factors announced by the Supreme Court of Texas in Cont'l Coffee

Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996). Considering the record as a

whole, as the Court must, there was more than a scintilla of evidence that these four

employees were terminated by Lowe’s because they had made Worker’s

Compensation claims.

      In addition, there was other evidence that Lowe’s proffered reason for their

termination – violation of the Leave of Absence policy – was a false pretext. The

record showed Lowe’s did not even follow that policy with regard to these four

employees. There were no requests forms for personal leave filled out, nor any other

documentation showing why and when these supposed personal leaves were taken.

There were no letters notifying employees that they were now on personal leave.

There were no letters warning employees that they were about to exceed the

permissible leave of absence limits under the policy prior to their terminations.



                                                                                    26
       The evidence of retaliatory intent and false pretext was sufficient to raise a

genuine issue of material fact. It was therefore error to grant a directed verdict. The

trial court’s judgment should be reversed and this case should be remanded to the

district court for a trial on the merits.




                                                                                    27
                       ARGUMENT AND AUTHORITIES

I.    STANDARD OF REVIEW FOR DIRECTED VERDICT

      A trial court’s directed verdict order is reviewed by the Court under a de novo

standard of review. Selgas v. Henderson County Appraisal Dist., No. 12-10-00021-CV,

No. 12-10-00050-CV, 2011 Tex. App. LEXIS 9091, 4, 2011 WL 5593138 (Tex. App.

– Tyler 2011, pet. denied)(mem. op.)(citing Tex. Mun. Power Agency v. Pub. Util. Comm'n,

253 S.W.3d 184, 192 (Tex. 2007)); Darpino v. T.D.C.J.-I.D., No. 12-03-00021-CV, 2003

Tex. App. LEXIS 10097, 6, 2003 WL 22839250 (Tex. App. – Tyler 2003, no

pet.)(mem. op.)(citing Graham v. Atlantic Richfield Co., 848 S.W.2d 747, 750 (Tex. App. –

Corpus Christi 1993, writ denied)).

     A directed verdict is proper only under limited circumstances: (1) when the

evidence is insufficient to raise a material fact issue, or (2) when the evidence

conclusively establishes the right of the movant to judgment or negates the right of

the opponent. See Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77

(Tex. 2000); Farlow v. Harris Methodist Fort Worth Hosp., 284 S.W.3d 903, 919 (Tex.

App. – Fort Worth 2009, pet. denied).

     In reviewing the granting of a directed verdict, the Court must determine

whether there is more than a scintilla of evidence to raise a fact issue on the

challenged elements. See Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d

227, 233-234 (Tex. 2004)(citing Collora v. Navarro, 574 S.W.2d 65, 68 (Tex. 1978)). The

Court must “consider all of the evidence in a light most favorable to the party against

                                                                                       28
whom the verdict was instructed and disregard all contrary evidence and inferences”

and “give the losing party the benefit of all reasonable inferences created by the

evidence.” Coastal Transp. at 233 (citing White v. Southwestern Bell Tel. Co., 651 S.W.2d

260, 262 (Tex. 1983)).

     If the evidence supporting a finding rises to a level that would enable reasonable,

fair minded persons to differ in their conclusions, then more than a scintilla of

evidence exists. In the Estate of Allen, 301 S.W.3d 923, 926-927 (Tex. App. – Tyler

2009, orig. proceeding); see also Coastal Transp. at 234. Less than a scintilla of evidence

exists when the evidence is so weak as to do no more than create a mere surmise or

suspicion of a fact, and the legal effect is that there is no evidence. Id.

     The trial court granted a directed verdict on the ground that there was

insufficient evidence to raise a genuine issue of material fact as to whether the

employees’ filing of their workers’ compensation claims was a cause of their

terminations. (RR6:99) Specifically, the trial court ruled:

     The Court specifically makes a finding that the causal connection hasn’t
     been met. If necessary, on the rebuttal, the Court finds if it’s found that
     cause was established that that’s been rebutted by the employer to show
     that there was a legitimate reason for the discharge and so the directed
     verdict is granted.

(RR6:99, Tab 1).

       Thus, the Court’s review of the directed verdict ruling concerns two related

issues. First, is there more than a scintilla of evidence that the filing of workers’

compensation claims by Appellants was a motivating factor for their termination by

                                                                                        29
Lowe’s.    Second, did Lowe’s conclusively establish that the sole reason for the

termination of the four employees was the absence of leave policy.

       As detailed in the above facts, the evidence shows the employees were pushed

into taking additional leave by Lowe’s managers working them against light duty

restrictions. The personal leave policy was not actually followed leading up to the

terminations.    And the evidence shows management at Lowe’s Palestine store

intended to terminate these employees because their workers’ compensation claims

were affecting managers’ bonuses and using up store hours limited to light duty work.

Reasonable and fair-minded jurors could conclude on this record that Lowe’s

management worked these employees against restrictions as a pretext to terminating

them under Lowe’s absence control policy and thus, the policy was not the true

reason for their terminations.

II.    THE EVIDENCE RAISES A GENUINE ISSUE OF FACT AS TO WHETHER
       APPELLANTS’ WORKERS’ COMPENSATION CLAIMS WERE A CAUSE OF
       THEIR TERMINATIONS.
       Texas employs a burden shifting analysis for workers compensation retaliatory

discharge claims under section 451.001. 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, 256-57 (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


                                                                                         30
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” the 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.) (a plaintiff proves a prima facie case by establishing that she “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.”).

      An 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; Turner v. Precision

Surgical, L.L.C., 274 S.W.3d 245, 252 (Tex. App. – Houston [1st Dist.] 2008, no pet.).

The filing of the Workers compensation claim must be a reason for the employer’s

adverse employment action, but not necessarily the reason.

      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;


                                                                                        31
      (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.

      This type of circumstantial evidence is relevant to 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 generally Hertz Equip. Rental Corp. v. Barousse, No. 01-10-00949-

CV, 365 S.W.3d 46 (Tex. App. – Houston [1st Dist.] 2011 pet. denied) (reviewing

circumstantial evidence identified in Cont'l Coffee to determine whether evidence was

legally and factually sufficient to support finding of retaliatory discharge); see also

Parker v. Valerus Compression Servs., LP, 365 S.W.3d 61, 66-68 (Tex. App. – Houston [1st

Dist. 2011, pet. denied)(citing Green v. Lowe’s Home Ctrs., Inc., 199 S.W.3d 514, 51-23

(Tex. App. – Houston [1st Dist.] 2006, pet. denied) (reviewing circumstantial evidence

under Cont'l 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, non-discriminatory reason for its actions. Green, 199 S.W.3d at 519;

                                                                                     32
Benners, 133 S.W.3d at 369.      If the employer demonstrates a legitimate, non-

discriminatory reason, then the burden shifts back to the employee “to produce

controverting evidence of a retaliatory motive.” Green, 199 S.W.3d at 519. As noted

above, however, often the same circumstantial evidence that establishes the

employee’s prima facie case will also create a fact issue as to the truthfulness of the

employer’s proffered non-discriminatory reason. Green, Parker, supra.; 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 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.

      Applying these standards to the evidence on this record, there was more than a

scintilla of evidence to raise a genuine issue of material fact that the good faith

workers’ compensation claims were a cause of the termination of these four

employees, and that the Leave of Absence policy was not only not followed for these

employees, but was part of a scheme intended to force light duty employees into

either quitting or into what Lowe’s would categorize as personal leave by working

them against their restrictions. This case should have been decided by a jury.




                                                                                    33
      A. The Evidence Shows Lowe’s Management Forced The
         Employees To Work Against Their Light Duty Restrictions In
         Order to Make Them “Lowe’s Next Customers.”

      As explained above, causation can be proven by circumstantial evidence,

including the five factors identified by the Texas Supreme Court in Cont’l Coffee as

circumstantial evidence of causation. A claimant need not produce evidence of all

five of these factors, but can create a fact issue by showing there was evidence of at

least three of the five factors. Armendariz v. Redcats USA, L.P., 390 S.W.3d 463, 469

(Tex. App. – El Paso 2012, no pet.); Aust v. Conroe Indep. Sch. Dist., 153 S.W.3d 222,

229 (Tex. App. – Beaumont 2004, no pet.) (the court concluded the employee had

established a causal link between his discharge and his injury by “present[ing]

circumstantial evidence on “most of [the] Continental Coffee factors.”). This record

contains evidence of all five factors. There was definitely a fact issue regarding

causation that should have been submitted to a jury.

      At the outset, it is important to clarify the precise nature of the retaliation

alleged in this case. This is not purely an allegation that the employees were directly

fired for making Worker’s Compensation claims. Rather, the evidence shows that all

four employees were systematically worked against their light duty restrictions, forcing

them to take personal or medical leave because they were unable to perform the work

they were being made to perform in violation of their physical restrictions. Thus, in

considering when the retaliation occurred, and by whom, the Court should consider

                                                                                     34
the knowledge, statements and actions of the managers at the Palestine store, which is

where the actual retaliation occurred.

      1. Knowledge of the Claims

      First, the record shows that managers were well aware that these four

employees had made workers’ compensation claims. As detailed above, there were

two witnesses present at Lowe’s management meetings who heard the store manager,

Gonzalez, and other high-level managers including Mike Bohem, a Zone Manager,

and Nick Boren, the Operations Manager, not only specifically discussing these four

employees’ workers’ compensation claims, but doing so in negative terms –

expressing doubts that they were really injured and plans to make them “Lowe’s next

customers.” (RR4:33-34; 7:27-28)

      According to Tinsley (also a Zone Manager), these managers – and particularly

Gonzalez – frequently discussed their displeasure with the fact that these employees

were on workers’ compensation because of the impact these employees’ claims and

light duty statuses were having on the store budget and, hence, these managers’

personal bonuses. (RR7:24-28) Meador, a Department Manager, was also privy to

numerous instances in which Gonzalez expressed similar sentiments that the workers’

compensation claims were impacting his bonuses.          (RR4:32-36)    In particular,

Gonzalez explained to Meador that Brewer light duty status was taking hours away

from non-restricted employees to whom he would rather give those hours and that he

wished Brewer would quit. (RR3:50) This is echoed in Tinsley’s testimony, where she

                                                                                   35
explained that Gonzalez would move the injured employees around in order to get

them to quit. (RR7:24)

       In addition, all four employees testified that they told managers – specifically

Gonzalez Boren and Bohem – that they were being worked against their restrictions.

(RR3:49-50; 4:121-24, 191-92; 5:72-73) All four testified that they complained about

being worked beyond restrictions and were all belittled for complaining, and

pressured to continue to do the work against their restrictions by Gonzalez, Boren

and Bohem. (RR3:49-52; 4:12-15, 121-123, 194-200) Indeed, it was frequently these

very managers who were knowingly pushing these employees to work against their

physical restrictions. (Id.)

       There was definitely evidence that the managers responsible for working these

employees against their light duty restrictions to force them into taking personal leave

were well aware that these employees had made workers’ compensation claims.

       2. Expression of negative attitude towards injury

       There was also more than a scintilla of evidence of the second Cont’l Coffee

factor –managers expressed a negative attitude toward the claimants’ injuries.

Specifically, Tinsley testified that the Palestine store managers discussed these four

employees in particular during store manager meetings, expressing doubts about the

severity of their injuries, doubts about whether they needed to be on light duty, and

negative attitudes about workers’ compensation claims in general because it impacted

managers’ bonuses. (RR7:24-28)

                                                                                     36
      This is also evident in statements by Gonzalez to Meador that he was going to

make them “Lowe’s next customers” and that he thought having light duty employees

around cut into hours he needed to budget for non-restricted employees. (RR3:48-51)

It was also consistently shown in the evidence that when these employees, all of

whom were on light duty restrictions – complained that they were being worked

against their restrictions they were belittled and told to “cowgirl up,” put on their “big

girl panties” and other demeaning statements. (RR3:52-53; 4:13-14, 123, 191; 5:76)

      They were also threatened directly and indirectly with losing their jobs if they

refused to do work beyond their restrictions.          (RR3:50, 52-53; 4:13-14; 5:72)

According to Tinsely, managers often repeated Gonzalez’s catch-phrase that if injured

employees could not do the work, they should be “Lowe’s next customer.” (RR7:25-

26)

      Thus, there is evidence to support the second Cont’l Coffee factor as well. The

managers at Lowe’s Palestine store regularly expressed negative attitudes about these

employees’ injuries and their status as workers’ compensation claimants, including a

hope that they could be made to quit or otherwise turned into “Lowe’s next

customers.”

      3. Failure to adhere to company policies

      There is abundant evidence of the third factor. Not only was there substantial

evidence that managers at the Palestine store failed to abide by Lowe’s light duty

provisions under its workers’ compensation policy, but that Lowe’s also failed to

                                                                                       37
abide by its “absence control policy” – the purported “neutral” policy under which

these employees were ostensibly terminated.1

       With regard to the first policy, the record showed that these employees were

systematically worked against their restrictions after having been given light duty work

assignments under Lowe’s workers’ compensation policy. For instance, Brewer was

offered a job as an operator and at the credit card desk, which she accepted and could

have performed with her injuries, but was promptly moved to receiving, where she

was made to lift, turn and move heavy items beyond her restrictions. (RR4:112-116)

Nothing was done in response to her complaint that she was made to work beyond

her restrictions. On one occasion, Brewer had her light duty restriction form thrown

back at her when she tried to explain her restrictions. (RR4:126)

       Lowe’s then moved Brewer to the loading dock where she again was worked

consistently beyond her physical restrictions. (RR4:122-23) When she complained

about the work going beyond her physical restrictions, Boren confronted her in the

back of the store and told her to “cowgirl up” and she could do the “the job I told

you to do or you can seek your employment somewhere else.” (RR4:123) This is

consistent with Tinsley’s testimony that Gonzalez’s plan was to move injured

employees around to make them quit. (RR7:24)




1
  The evidence of the violation of Lowe’s absence control policy is addressed separately in Section B,
infra.

                                                                                                   38
      As detailed above, all four of these employees were regularly worked beyond

their light duty restrictions and were derided, pressured and ignored when they tried

to complain. This was definitely in violation of Lowe’s workers’ compensation policy.

Lowe’s corporate representative at trial testified that the light duty policy was in effect

for Worker’s Compensation claimants with physical restrictions, and was to be

honored and respected by managers to prevent employees from suffering additional

injuries or slowing down their healing from prior injuries. (RR5:205-210)

      4. Discriminatory treatment compared to other employees

      There is also evidence that these employees were treated differently than other

employees because they had made workers’ compensation claims and were subject to

light duty restrictions under Lowe’s workers’ compensation policy. Lowe’s testified

that light duty was made available to both workers’ compensation claimants with

medical restrictions and to other employees who were injured from non-work-related

injuries and “transitional employees.” (RR5:205-207) Under the light duty policy,

Lowe’s managers were only supposed to assign employees tasks that fit within their

physical limitations, knowledge and skills. (RR5:207)(“The employer will only assign

tasks consistent with the employee’s physical abilities, knowledge and skills and will

provide training if necessary.”)

      However, the evidence here was that Gonzalez and his management team were

displeased with the effect of the workers’ compensation claims on the store budget

and their managers’ bonuses, and sought to move the employees around to make

                                                                                        39
them quit. (RR7:24-28) There was abundant evidence – detailed above – that these

employees were systematically worked against their physical and light duty restrictions.

The reason for this was because an employee that was not on leave due to an injury

involving workers’ compensation was subject to the maximum leave requirement

under the policy, but there was no limit to the number of leave days an employee

could take because of a workers’ compensation-related injury. (RR6:7-9) Thus, given

testimony that Gonzalez sought to move employees around to make them quit, was

negative about these employees’ injuries, consistently worked them against

restrictions, a reasonable jury could infer discriminatory treatment. These employees

were specifically targeted to be worked against restrictions to force them to take leave

from work that could then be categorized as “personal” leave subject to the absence

control policy and terminated under that policy as a pretext. This is even more

apparent when the Court considers how the absence control policy was actually

applied to these four employees, which is addressed in the next section.

      At this point, the Court should already find there was error in granting a

directed verdict based on causation and Lowe’s proffered non-discriminatory reason.

There is sufficient evidence of the first four of the five Cont’l Coffee factors – and

therefore enough circumstantial evidence to establish both that the terminations of

these four employees were caused by their making of workers’ compensation claims,

and that they were deliberately worked against their light duty restrictions in violation

of Lowe’s workers’ compensation policy either to get them to quit, or to force them

                                                                                      40
into taking what Lowe’s could ostensibly categorize as personal leave in order to fire

them under the false pretext that they were applying a neutral absence control policy.

       That alone is enough to require this Court to reverse the directed verdict and

remand this case for a new trial. However, there is also critical evidence of the other

Cont’l Coffee factor – Lowe’s proffered explanation is not the true reason.

       B. The Evidence Supports That the Leave of Absence Policy Was
          A False Pretext; Policy Was Not Even Followed.

       The final factor under Cont’l Coffee is whether the stated reason for the

discharge is false. As with the other four factors, there is more than a scintilla of

evidence that these four employees were fired because they made workers’

compensation claims independent of the purportedly neutral application of Lowe’s

absence control policy. Rather, the evidence shows Lowe’s managers mis-categorized

workers’ compensation claimants as though they were taking “personal” leave to

trigger the maximum leave provision of the policy – which otherwise would not have

applied if Lowe’s treated them as workers’ compensation claimants they actually were.

       Where an employee’s termination is claimed to be the result of an attendance

policy, the employee raises a fact issue by providing some evidence of retaliatory

intent. Kings Aire, Inc. v. Melendez, 416 S.W.3d 898 (Tex. App. – El Paso 2013, pet.

filed); Echostar Satellite, L.L.C. v. Aguilar, 394 S.W.3d 276, 288 (Tex. App. – El Paso

2012, pet. denied); see also Baptist Memorial Healthcare Sys. v. Casanova, 2 S.W.3d 306, 309

(Tex. App.--San Antonio 1999, pet. denied); Omoro v. Harcourt Brace & Co., No. 05-96-


                                                                                         41
01454-CV, 1999 Tex. App. LEXIS 133, 1999 WL 10388, at *3 (Tex. App. – Dallas

1999, no pet.)(mem. op.)(employee may raise fact issue in face of attendance policy

compliance by producing competent “evidence of a retaliatory motive”).

      To begin with, the absence control policy was not even followed as to these

four employees. For each employee, there should have been a form or computer

screen capture in their employee file showing that a request for personal leave had

been made for each employee. Yet there were no forms for any of these four

employees. (RR6:26-28, 30, 31) Each employee’s personnel file should have also had

a leave of absence checklist if this had been the start of a personal leave – yet there

were none. (RR6:22)

      In fact, since there was no documentation showing when and why these

supposed personal leaves were initiated, Lowe’s was unable to demonstrate how it

could even calculate whether the maximum leave time had been exceeded. When

asked how Lowe’s was even able to calculate the start date for the 240-day personal

leave limit under which it purportedly terminated Brewer, Lowe’s corporate

representative could not answer. (RR6:25)

      There should also have been warning letters to each employee that went out

prior to exceeding the personal leave maximum had these employees actually been

properly subjected to the personal leave policy. (RR6:20-21) There were none –

indeed none of the four workers knew they had been categorized as being on personal



                                                                                    42
leave subject to a maximum number of days until they each received their letter of

termination. (RR4:28, 132, 203; 5:79)

      The leave of absence policy was not even followed by Lowe’s with regard to

these four employees. In fact, it does not even appear that any part of it was followed

other than issuing termination letters to set up the pretext that these employees were

fired for taking too much personal leave instead of being fired for making workers’

compensation claims.

      This evidence not only further supports the third Cont’l Coffee factor – failure to

abide by set policies – but it also supports the fifth factor – Lowe’s stated reason for

the termination of these employees was false. If the neutral application of the absence

control policy were the actual reason for the termination of Brewer, Meador, Adams

and Curry, then the evidence would show Lowe’s actually followed that policy. The

evidence shows exactly the opposite.

      There is abundant evidence detailed above from which a reasonable jury could

infer Lowe’s absence control policy was a false pretext. Gonzalez’s statements during

managers’ meetings that workers’ compensation claims impacted the store budget and

his bonuses and intent to make workers’ compensation claimants into “Lowe’s next

customers” also shows Lowe’s proffered non-discriminatory reason is a false pretext.

Likewise, Tinsley’s testimony that Gonzalez would move injured employees around in

order to make them “quit” also supports the reasonable inference that they were not

actually terminated for taking too much personal leave, but were terminated because

                                                                                      43
they were workers’ compensation claimants whose claims and light duty status were

impacting managers’ bonuses.

      In sum, a reasonable jury, had it been allowed to deliberate on this record,

could have concluded that Lowe’s managers in Palestine deliberately moved these

four employees around, working them against their light duty restrictions in violation

of Lowe’s policy in order to get them to quit or force them to take time off from

work that Lowe’s would then categorize as “personal” leave subject to the leave of

absence policy.

      This is precisely the sort of situation the court found sufficient to support a

jury’s verdict against an employer in Kings Aire. There, the employer re-categorized

the employee from the unlimited workers’ compensation leave to a limited FMLA

leave, then terminated the employee ostensibly for violating the amount of leave that

would be available for FMLA. Id., 416 S.W.3d at 910. There, as here, the record

showed that the amount of leave had the employee been treated as taking comp-

related leave was unlimited. Finding a genuine issue of material fact as to whether the

employee requested to be put on FMLA leave or whether the employer did it without

the employee’s consent, the court concluded:

      There is a fact question as to whether Melendez elected to switch from
      the indefinite worker's compensation leave to the time-limited FMLA
      leave himself — in which case Kings Aire properly allowed a cause-
      neutral absence control “clock” to expire before termination — or
      whether Kings Aire switched him to time-limited FMLA leave without
      his consent for the specific purpose of retaliating from behind a cause-
      neutral veil.

                                                                                    44
Id. The court affirmed the jury’s verdict in favor of the employee. Id.

        Here, the evidence shows that Lowe’s deliberately worked these employees

beyond their light duty restrictions to force them into taking leaves of absence, and

then, without the employees’ request or knowledge, categorized all four employees as

taking personal leave instead of what should have been unlimited workers’

compensation leave.

        The cases relied on by Lowe’s involving neutral absence of leave policies are all

easily distinguishable.2 None of those cases involve direct evidence of discriminatory

intent, like Gonzalez’s statement that he sought to make workers’ compensation

claimants into Lowe’s next customers. None of those cases involved evidence that

workers were moved around and worked against their restrictions to get them to quit

or take additional leave. None of those cases involve evidence that workers were

offered light duty assignments according to a company policy put then were insulted,

belittled, pressured and threatened when they complained that they were being

worked beyond their light duty assignments and against their physicians’ restrictions.

None of those cases involve evidence that the workers were categorized as taking

personal leave without their knowledge or consent. Finally, none of those cases

involve evidence that the absence control policy was not even followed.


2
 E.g. Parker, 365 S.W.3d at 66-68; Terry, 927 S.W.2d at 256-57; Deveaux v. Compaq Computer Corp., No. 01-95-
01104-CV, 1996 Tex. App. LEXIS 4308, 15, 1996 WL 531959 (Tex. App. – Houston [1st Dist.] 1996, no writ)(not
designated for publication);


                                                                                                          45
       This is far more evidence of retaliatory motive and false pretext in the

application of an absence control policy than the courts found sufficient in either

Kings Aire or Echostar, supra. The Echostar opinion is particularly instructive, given

certain key facts it shares with this case:

       In the instant case, several of the Continental Coffee . . . factors are present
       and establish the initial causal link. For example, there is no question that
       Appellants had knowledge of the compensation claim and that the
       people making the decision to terminate were aware of the claim, a
       factor favoring Aguilar. Aguilar testified that other employees showed a
       negative attitude towards his condition, while Appellants provided
       contravening testimony. Appellants deviated from their policies in a
       number of respects, specifically in that Appellants’ policy is to provide
       transitional or light duty for injured employees, however after only a few
       days on light duty, Aguilar was told to either return to his regular duties
       or be fired. Appellants further deviated from their policies by failing to
       notify Aguilar in writing, advising him of the expiration of his leave prior
       to terminating his employment.

Id., 394 S.W.3d at 288-89.

       Here, in addition to all of these same facts being present, the record also shows

that workers’ compensation claimants at the Palestine store: were specifically worked

against their light duty restrictions; were derided, belittled and pressured when they

complained and asked for their restrictions to be followed; were threatened with

termination when they complained; were the target of a plan to make them quit

because their injuries were costing store managers their bonuses; and never requested

personal leave (nor were they ever told they were on limited personal leave until it was

too late).



                                                                                          46
      A reasonable jury could conclude both that the making of their workers’

compensation claims was a cause of their terminations and that Lowe’s stated

alternative reason was false. It was error to direct a verdict for Lowe’s.




                                                                             47
                                        PRAYER

       Appellants presented more than a scintilla of evidence supporting most, if not

all, of the Cont’l Coffee factors by which causation can be proven in retaliation cases.

There was evidence that Lowe’s managers knew of the claims. There was evidence

these managers expressed a negative attitude toward the injuries and claims and

specifically intended to make these employees quit because managers were losing

bonuses.    Lowe’s management failed to adhere to several company policies –

including a complete failure to abide by the absence control policy that was offered as

the non-retaliatory reason for the discharge of the four employees and failure to

recognize or follow Lowe’s light duty policy for workers’ compensation claimants.

Lowe’s management singled out workers’ compensation claimants on light duty to

work them beyond their light duty restrictions to force employees into taking leave

from work that Lowe’s would then categorize as personal leave instead of workers’

compensation-related leave.

       There was far more than a mere scintilla of evidence in this case to show

causation, retaliatory motive and false pretext. This case should be resolved by a jury.

It was error to grant a directed verdict.

       Appellants respectfully pray that this Court reverse the judgment of the district

court and remand this case for a new trial on the merits. Appellants further request

any other relief as the Court deems just and proper, including costs for this appeal.



                                                                                        48
Respectfully submitted,

GRAVELY & PEARSON, LLP
425 Soledad, Suite 600
San Antonio, Texas 78205
Telephone: (210) 472-1111
Facsimile: (210) 472-1110

By:
      Matthew R. Pearson
      State Bar No. 00788173

And

THE MCBRIDE LAW FIRM, of counsel
 to GRAVELY & PEARSON, LLP
425 Soledad, Suite 620
San Antonio, Texas 78205
Telephone: (210) 472-1111
Facsimile: (210) 881-6752


By:
      Brendan K. McBride
      State Bar No. 24008900

ATTORNEYS FOR
APPELLANTS, BRENDA
BREWER, DEANNA
MEADOR, PENNY ADAMS, and
SABRA CURRY




                                   49
                            CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the foregoing document has been
forwarded on this 19th day of March, 2015 via electronic service through Texas.gov on
Appellee’s counsel of record:

       Holly Williamson
       Jamilah Mensah
       Hunton & Williams, LLP


                                                 Brendan K. McBride

                        CERTIFICATE OF COMPLIANCE

       I hereby certify that this brief is in compliance with the rules governing the length
of briefs prepared by electronic means. The brief was prepared using Microsoft Word
2010. According to the software used to prepare this brief, the total word count,
including footnotes, but not including those sections excluded by rule, is 9,490.




                                                 Brendan K. McBride




                                                                                         50
                                    NO. 12-14-00155-CV
     IN THE TEXAS COURT OF APPEALS FOR THE TWELFTH DISTRICT
                          TYLER, TEXAS

                                                     * * * * *

  BRENDA BREWER, DEANNA MEADOR, PENNY ADAMS, and SABRA
                        CURRY

                                                                             APPELLANTS

                                                           V.

                                 LOWE’S HOME CENTERS, INC.,

                                                                              APPELLEE

                                            * * * * *
                             On Appeal from the 3rd Judicial District Court
                                     Anderson County, Texas
                                 District Court Cause No. 3-41083
                                            * * * * *


                  APPELLANTS’ APPENDIX TO BRIEF
    ______________________________________________________________


                                                                                                                    TAB

Transcript of Oral Ruling on Motion for Directed Verdict (RR6:98-99) ....................... 1

Trial Court’s Final Judgment (CR6:307-309) ...................................................................... 2

Notice of Appeal (CR6:316-317) .......................................................................................... 3




                                                                                                                       51
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TAB 2
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