

COURT OF APPEALS
EIGHTH DISTRICT OF
TEXAS
EL PASO, TEXAS
 
 



AMANDA ARMENDARIZ,
 
                            Appellant,
 
v.
 
 
REDCATS USA, L.P.,
 
                           
  Appellee.


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§
 
§
 
§
 
§
 
 § 
 


 
No. 08-11-00010-CV
 
Appeal from the
 
County
  Court at Law No. 5 
 
of El
  Paso County, Texas 
 
(TC#2009-3470) 
 



 
O
P I N I O N
            In this wrongful discharge case, Amanda
Armendariz (“Armendariz”) appeals the trial court’s orders granting summary
judgment for Redcats USA, LP (“Redcats”), entering final judgment for Redcats,
and denying her motion for new trial.  We
affirm.
FACTUAL
AND PROCEDURAL BACKGROUND
Armendariz worked as a telemarketer for Redcats
for approximately 16 months, from mid-February 2008 until June 15, 2009.  On May 19, 2009, Armendariz informed her
supervisor that she was experiencing pain in her hands.  As instructed, Armendariz reported her injury
to human resources.  After stretching
exercises proved ineffective, Armendariz saw a physician at a clinic with which
Redcats had a contractual relationship. 
The physician informed Armendariz that she could continue working, which
she did.  During this time, Armendariz
filed a workers’ compensation claim.
In its employee handbook and in a
more-detailed separate written attendance policy, Redcats stressed the
importance of attendance and punctuality and required its employees to maintain
satisfactory attendance as a condition of employment.  If an employee was to be absent from or tardy
to work, the employee was required to notify his or her department of his or
her absence or tardiness before his or her shift began.  The written attendance policy provided that
attendance infractions included being absent from work, arriving late to work
by more than two minutes, and leaving early from work by more than two
minutes.  Pursuant to the written policy,
an attendance infraction was unexcused unless incurred as part of approved
leave or if supported by physician’s statement. 
However, the evidence establishes that Redcats also had an unwritten
attendance policy known as the “half-day absence rule.”  Pursuant to this policy, an employee’s unscheduled
tardiness or partial absence was considered an unexcused attendance infraction,
even if supported by a physician’s statement.
Redcats evaluates the performance of its
employees on a scale of one to four.  A
performance rating of one indicated that an employee was not meeting
expectations, two that an employee was partially meeting expectations, three
that an employee was meeting expectations, and four that an employee was
exceeding expectations.  Pursuant to the
written attendance policy, an employee began the calendar year with an
attendance rating of four, and every six months the rating cycle began
anew.  As an employee incurred attendance
infractions, his or her rating decreased. 
An employee with a rating of one faced the possibility of termination.
At the time that she reported her workplace
injury, Armendariz had an attendance rating of one and had already received a
final written warning from her supervisor that an additional attendance
infraction would result in her termination.[1]  When, on June 15, 2009, Armendariz arrived to
work more than three hours late, she was terminated.
Armendariz filed suit for wrongful
discharge.  In response, Redcats moved
for traditional summary judgment pursuant to Rule 166a(c) and no-evidence
summary judgment pursuant to Rule 166a(i). 
Without identifying the basis or bases for granting relief, the trial
court granted summary judgment and entered final judgment for Redcats.  Armendariz moved for a new trial, but the
trial court denied the motion.  This
appeal followed.
SUMMARY JUDGMENT STANDARD OF REVIEW
We review a trial
court’s summary judgment de novo.  Mann
Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848
(Tex. 2009).  When, as here, the trial
court does not specify the grounds on which it granted summary judgment, the
summary judgment will be affirmed if any of the grounds advanced by the movant
is meritorious.[2]  Western
Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005); Hernandez v. Am. Tel. & Tel. Co., 198 S.W.3d 288, 291
(Tex.App.--El Paso 2006, no pet.).  
In conducting our
no-evidence summary-judgment review, we “review the evidence presented by the
motion and response in the light most favorable to the party against whom the
summary judgment was rendered, crediting evidence favorable to that party if
reasonable jurors could, and disregarding contrary evidence unless reasonable
jurors could not.”  Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009), quoting Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006).  A genuine issue of material fact exists when
more than a scintilla of evidence establishing the existence of the challenged
element is produced.  Ford Motor Co., 135 S.W.3d at 600.  More than a scintilla of evidence exists when
the evidence rises to a level that would enable reasonable and fair-minded
people to differ in their conclusions.  King Ranch, Inc. v. Chapman, 118 S.W.3d
742, 751 (Tex. 2003).  However, less than
a scintilla of evidence exists when the evidence is so weak that it does no
more than create a surmise or a suspicion of a fact.  Id.  When a non-movant presents more than a
scintilla of probative evidence that raises a genuine issue of material fact
regarding each challenged element, a no-evidence summary judgment is improper.  Smith
v. O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009).  On the other hand, when a non-movant fails to
produce more than a scintilla of evidence on an essential element of the claim,
the trial court is required to grant the motion.  Tex.R.Civ.P.
166a(i); Ford Motor Co., 135 S.W.3d
at 600.
A party moving for
traditional summary judgment bears the burden of showing that no genuine issue
of material fact exists and that she is entitled to judgment as a matter of
law.  Tex.R.Civ.P.
166a(c).  To determine if the non-movant
raised a fact issue, we review the evidence in the light most favorable to the
non-movant, crediting favorable evidence if reasonable jurors could do so, and
disregarding contrary evidence unless reasonable jurors could not.  See
Fielding, 289 S.W.3d at 848, citing
City of Keller v. Wilson, 168 S.W.3d
802, 827 (Tex. 2005).  A defendant who
conclusively negates a single essential element of a cause of action or
conclusively establishes an affirmative defense is entitled to summary judgment
on that claim.  Frost Nat. Bank v. Fernandez, 315 S.W.3d 494, 508-09 (Tex. 2010).
WRONGFUL DISCHARGE
The Workers’ Compensation Act (Act) prohibits
an employer from discharging or discriminating against an employee simply
because the employee has filed a workers’ compensation claim in good
faith.  Tex.Lab.Code
Ann. § 451.001 (West 2006); Hernandez,
198 S.W.3d at 291.  An employee bears the
burden to prove that she was discharged
in retaliation for filing a workers’ compensation claim. Tex.Lab.Code Ann. § 451.002(b); Cont’l Coffee Prods. Co. v. Cazarez, 937
S.W.2d 444, 450 (Tex. 1996); Hernandez,
198 S.W.3d at 291.  An
employee satisfies her burden of proof by establishing that she would
not have been discharged “but for” the
filing of the workers’ compensation claim. 
Id.  If the employee is successful in establishing
a causal link between her discharge and the filing of her workers’ compensation
claim, the burden shifts to the employer to establish that its decision to
terminate the employee was based upon the neutral application of a
non-discriminatory legitimate business policy. 
Hernandez, 198 S.W.3d at 291.  If the employer is successful in doing so,
the burden shifts back to the employee to produce controverting evidence of a
retaliatory motive.  Id.  An employee may meet her
burden of producing such controverting evidence by either:  (1) presenting evidence raising a fact issue
on whether the employer’s stated reason was a pretext for a retaliatory action;
or (2) challenging the employer’s summary judgment evidence as failing to prove
as a matter of law that the stated reason was legitimate and
non-discriminatory.  Id.
Causal Link
In establishing a causal link between her
discharge and her workers’ compensation claim, an employee may rely either on
direct or circumstantial evidence.  Hernandez, 198 S.W.3d at 291.  With regard to circumstantial evidence, the
Supreme Court has identified five factors that, if proven by the employee, are
considered evidence of such a causal link. 
Cont’l Coffee, 937 S.W.2d at
450-51.  These five factors, known as the
Continental Coffee factors, are:  (1) knowledge of the compensation claim by
those making the decision to terminate; (2) expression of a negative attitude
toward 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 Prods. Co. v. Cazarez, 903
S.W.2d 70, 77 (Tex.App--Houston [14th Dist.] 1995), aff’d in part and rev’d in part on other
grounds; 937 S.W.2d 444 (Tex. 1996); Hernandez,
198 S.W.3d at 291.
On appeal, Armendariz argues that she
produced evidence sufficient to meet her prima facie burden of establishing a
causal link between her discharge and her workers’ compensation claim.  Specifically, she contends that she did so by
producing circumstantial evidence, as required by Continental Coffee, that:
 (1) the supervisor who fired her knew
about her workers’ compensation claim; and (2) Redcats failed to adhere to its
established company policy when it fired her.[3]  On the other hand, Redcats argues that
Armendariz failed to establish a causal link between her discharge and her workers’
compensation claim.  Specifically,
Redcats contends that Armendariz did not produce any circumstantial evidence,
as required by Continental Coffee,
that:  (1) Redcats personnel expressed a
negative attitude toward Armendariz’s injured condition; (2) Redcats failed to
adhere to its established company policy when it fired her; and (3) Redcats
treated an employee similarly situated to her differently than it treated her.
In her reply brief, Armendariz maintains that
she was not required to have produced evidence on all five of the Continental Coffee factors to have met her
burden in establishing a causal link between her discharge and workplace
injury.  We agree.  However, to meet her burden under Continental Coffee, Armendariz was
required to have produced sufficient circumstantial evidence on a majority of
these factors.  See Aust v. Conroe Indep. Sch. Dist., 153 S.W.3d 222, 229
(Tex.App.--Beaumont 2004, no pet.)(citing to Continental Coffee in support of the appeals court’s conclusion
that the appellant had established a causal link between his discharge and his
injury by “present[ing] circumstantial evidence on most of [the] Continental Coffee factors.”).
1.  Knowledge of the Compensation Claim
            In its brief, Redcats
concedes that Armendariz’s supervisor knew that Armendariz had a workplace
injury when he made the decision to terminate her employment.  The record establishes that not only did
Armendariz testify to her supervisor having such knowledge, but her supervisor
testified to his own knowledge of Armendariz’s injury.  Accordingly, Armendariz produced more than a
scintilla of evidence that her supervisor knew she was injured when she was
fired.
2.  Negative Attitude
As it did in its motion for summary judgment,
Redcats asserts, on appeal, that Armendariz failed to produce any evidence that
Redcats’s personnel expressed a negative attitude toward her injured
condition.  Armendariz did not address
this factor in her response to the motion for summary judgment, nor does she
now address it on appeal.  The record
establishes that Armendariz herself testified that no Redcats employee did or
said anything to discourage her from reporting her injury or from filing a workers’
compensation claim.  Accordingly, there
is no evidence that Redcats personnel exhibited a negative attitude toward Armendariz’s
injured condition.
3.  Similarly Situated Employees
Again, as it did in its motion for summary
judgment, Redcats asserts, on appeal, that Armendariz failed to produce any
evidence that Redcats treated a similarly situated employee more favorably than
it treated her.  Armendariz did not
address this factor in her response to the motion for summary judgment, nor does
she now address it on appeal.  The record
establishes that Armendariz herself testified that she was unaware:  (1) of any other injured employee; (2) of any
other employee who filed a workers’ compensation claim; (3) of any other
employee returning to work and continuing to work after the employee reported
an injury and filed a workers’ compensation claim; or (4) of any employee that
she believed was fired for filing a workers’ compensation claim.  Accordingly, there is no evidence that
Redcats treated an employee similarly situated to Armendariz more favorably
that it treated her.
4.  Stated Reason is False
            On appeal, neither party
addresses whether there is any evidence that the stated reason for Armendariz’s
discharge was false.  In its motion for
summary judgment, Redcats did not raise a no-evidence ground challenging this
factor.  Rather, Redcats addressed this factor
pursuant to its discussion of why it was entitled to summary judgment on
traditional grounds.  Redcats asserted
that Armendariz’s belief that she was discharged not because of her attendance
but because she sought a second opinion on her injury was not only subjective,
but also belied by her own testimony that Redcats did not discourage her from
seeking a second opinion.  Rather Redcats
informed her that the company’s insurance might not pay for the costs of a
second opinion.  Armendariz fails to
address, much less rebut, Redcats’s assertion in her response to the motion for
summary judgment.  Pursuant to Continental Coffee, Armendariz, as the
plaintiff, bore the burden to prove that Redcats’s stated reason for
discharging Armendariz because of inadequate attendance was false.  937 S.W.2d at 450-51.  Because she has failed to carry her burden
and the record is silent as to this factor, we can only conclude that there is
no evidence that Redcats’s reason for discharging Armendariz was false.
5.  Failure to Adhere to Policies
Armendariz argues, on appeal, that she raised
a genuine issue of material fact that Redcats failed to adhere to established
company policy because the “half-day absence rule” that Redcats relied upon to
terminate Armendariz for arriving late to work on June 15, 2009 did not
exist.  However, the evidence established
that, Redcats had an unwritten attendance policy – the “half-day absence rule”
– that provided that an employee’s unscheduled tardiness to or partial absence
from work was considered an unexcused attendance infraction, even if supported
by a physician’s statement.[4]  The existence of the rule was established by
the testimony of Redcats personnel responsible for implementing and
administering the company’s attendance policy. 
Here, there is no dispute that, on June 15, 2009, Armendariz was tardy
to work by more than three hours.  By
then, Armendariz had been operating on a final written warning from her
supervisor who had previously informed her that an additional attendance
infraction would result in her termination. 
Armendariz testified that she was tardy to work because she had gone to
a health clinic that morning after suffering intense menstrual bleeding that
was so severe that she passed out in her bathroom.  Regardless of the reason for her tardiness,
Armendariz violated the company’s “half-day absence rule,” and her tardiness
was therefore unexcused.
Armendariz argues that, even if such a rule
existed, it was inapplicable in her case because her tardiness was due to a
health emergency, which she maintains was not considered an unexcused absence
under Redcats’s attendance policy.  In
support of her argument, Armendariz refers us to the testimony of the
supervisor who discharged her that, in some cases, an emergency might
constitute an excused absence.  However, the
supervisor never testified as to whether a partial-day absence due to a medical
emergency might be excused.  Moreover,
Armendariz herself testified that she never had any discussions with her
supervisor about such a scenario.  Even
when viewed in the light most favorable to Armendariz, this evidence does
no more than support a mere suspicion or surmise that Redcats did not adhere to
the “half-day absence rule” when
discharging Armendariz for her tardiness. 
As such, it does not rise to a scintilla of evidence, and is therefore
equivalent to no-evidence.  Accordingly,
Armendariz has presented no evidence that Redcats failed to adhere to its
company policies when discharging her.
Armendariz failed to produce circumstantial
evidence on the majority of the Continental
Coffee factors.  While Armendariz produced
more than a scintilla of evidence that her supervisor knew she had filed a workers’
compensation claim when he fired her, she failed to produce more than a
scintilla of evidence as to any of the other four factors.  Armendariz thus failed to produce evidence
raising a genuine issue of material fact that a causal link existed between her
discharge and her workers’ compensation claim. 
Because she failed to do so, Armendariz did not satisfy her burden of
establishing the causal link between her discharge and her workers’
compensation claim.  Accordingly, we need
not address whether Redcats terminated Armendariz based on the neutral
application of a non-discriminatory legitimate business policy.  See
Hernandez, 198 S.W.3d at 291.
Because we have concluded that Armendariz
failed to produce evidence raising a genuine issue of material fact as to at
least one element of her claim – that a causal link existed between her
discharge and her workers’ compensation claim – we hold that the trial court
properly granted Redcats’s no-evidence summary judgment.  Moreover, because Armendariz failed to
produce more than a scintilla of evidence under the standards of Rule 166a(i), there is no need for us to analyze
whether her summary-judgment proof satisfied the less stringent burden set
forth for traditional summary judgment under Rule 166a(c).  Tex.R.Civ.P.
166a(c) & (i); East Hill Marine, Inc.
v. Rinker Boat Co., Inc., 229 S.W.3d 813, 816 (Tex.App.--Fort Worth 2007,
pet. denied).  Issue One is overruled.
NEW
TRIAL
In her second issue, Armendariz argues that
the trial court erred by denying her motion for new trial because she produced newly-discovered
evidence sufficient to raise a genuine issue of material fact as to whether the
“half-day” policy actually existed and whether Redcats adhered to established
company policy when terminating her.  We
disagree.
Rule 320 of the Texas Rules of Civil
Procedure provides, in part, that:  “New
trials may be granted and judgment set aside for good cause, on motion or on
the court’s own motion on such terms as the court shall direct.”  Tex.R.Civ.P.
320.  To obtain a new trial based upon
newly-discovered evidence, a movant must show that:  (1) new evidence has been discovered since
trial; (2) the failure to discover the evidence prior to trial was not because
of lack of due diligence; (3) the evidence is admissible and not merely
cumulative, corroborative, collateral, or impeaching; and (4) the evidence is
so material that it probably would produce a different result if a new trial
were granted.  Jackson v. Van Winkle, 660 S.W.2d 807, 809 (Tex. 1983), overruled on other grounds by Moritz v. Preiss, 121 S.W.3d 715 (Tex. 2003).  Whether a motion for new trial based on
newly-discovered evidence will be granted or refused generally is a matter left
to the sound discretion of the trial court. 
Jackson, 660 S.W.2d at 809.  Accordingly, we review a trial court’s
failure to grant a motion for new trial for an abuse of discretion and indulge
every reasonable presumption in favor of upholding the order.  Id. at
809-10.
Contrary to Armendariz’s assertion, the
newly-discovered evidence did not raise a genuine fact issue about Redcats’s
purported failure to adhere to established company policy when terminating her.
 The newly-discovered evidence that
Armendariz relied upon was an affidavit from a former Redcats’s employee
stating that, when Armendariz was fired, there never was a “half-day” or “full-day”
policy in effect.  According to the
affiant, the actual policy in place then was that an attendance infraction,
whether based on absence or tardiness, was excused if supported by a
physician’s statement.  The obvious purpose
of the affidavit is to impeach the testimony of Redcats’s personnel that Armendariz
was discharged because she violated the company’s “half-day absence rule.”  However, because the affidavit merely impeaches,
it is not new evidence for purposes of a new trial and is insufficient to
warrant a new trial.  Jackson, 660 S.W.2d at 809; Meinen v. Muesse, 72 S.W.2d 931, 932 (Tex.Civ.App.--Austin 1934, no
writ); see Ski River Dev., Inc. v.
McCalla, 167 S.W.3d 121, 132 (Tex.App.--Waco 2005, pet. denied)(newly
discovered evidence alleging that a witness committed perjury was cumulative,
impeaching, and not grounds for a new trial).
Armendariz asserts that the affidavit “stands
in stark contrast to the testimony of [the Redcats personnel]” and “went beyond
mere impeachment” of their testimony.  Evidence
impeaching a witness that is so strong and
convincing and has such probative force showing a state of facts differing from
that to which the witness sought to be impeached testified may
warrant a new trial.  Beeks v. Odom, 70 Tex. 183, 187-89, 7 S.W.
702, 704-05 (1888); Huggins v. Carey,
108 Tex. 358, 363-64, 194 S.W. 133, 135-36 (1917); Houston & T.C. Ry. Co. v. Forsyth, 49 Tex. 171, 178, 1878 WL
9156, *4-5 (1878); Meinen, 72 S.W.2d at
932.  However, the evidence here does not
lend itself to such characterization.  The affidavit, in and of itself, does not rise
beyond mere impeachment such that it establishes the lack of a “half-day” or
“full-day” attendance policy.  It is
simply cumulative impeachment evidence. 
Further, the evidence was not so material that it would probably produce
a different result if a new trial were granted. 
See Jackson, 660 S.W.2d at
809.
We conclude that the trial court did not
abuse its discretion by refusing to grant a new trial based on newly-discovered
evidence.  Armendariz’s second issue is overruled.
CONCLUSION
            Having
overruled both of Armendariz’s issues, we affirm the trial court’s orders granting summary judgment for
Redcats, entering final judgment for Redcats, and denying Armendariz’s motion
for new trial.
June 20, 2012
                                                                                    CHRISTOPHER
ANTCLIFF, Justice
 
Before McClure, C.J., Rivera, and Antcliff,
JJ. 




[1]
Armendariz concedes that she had a history of
unsatisfactory attendance and, although unclear and confusing, the record
supports her concession.  There is
evidence that by May 19, 2009, Armendariz had incurred the following unexcused
attendance infractions since she had begun working for Redcats:  (1) she was absent from work approximately eleven
days and partially absent approximately six half days; (2) she was tardy to
work on approximately eleven separate occasions; and (3) she left work early on
approximately three separate occasions.  There is also evidence that by then, she had
received two verbal warnings and one written warning about her attendance.  When Armendariz received her written warning,
she was informed that any additional attendance infractions would result in a
final written warning, and that her failure to improve could result in her
termination. 
Armendariz asserts that her attendance history
before she was terminated on June 15, 2009 is immaterial and emphasizes that
she stipulated to being on final notice that any additional unexcused
attendance infractions would result in her termination.  However, not only does Armendariz’s
attendance history provide necessary context, it is relevant in determining
whether Redcats discharged Armendariz based on the neutral application of its
attendance policy.  See Hernandez,
198 S.W.3d at 292-94 (reviewing employee’s entire attendance record in
determining whether employer’s stated reason for firing employee was based on
unsatisfactory attendance and not on a discriminatory reason).
 


[2]
We first review the trial court’s summary judgment under the no-evidence
standard of review.  Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).


[3]
Armendariz also relies on the “temporal proximity” between her injury and her
discharge – approximately one month – as circumstantial evidence of a
retaliatory motive behind her discharge. 
However, temporal proximity is not a Continental
Coffee factor and, standing alone, is insufficient to establish a causal
link.  Hernandez, 198 S.W.3d at 293-94.


[4]
As illogical and injudicious as it
sounds, an ill Redcats employee would be better off being absent for a full
day, rather than a partial day, because absence for the whole day attributable
to illness would be excused, so long as supported by a physician’s statement,
whereas tardiness or absence for a partial day, regardless of a physician’s
statement, was unexcused.  We do not
address the efficacy of having such an “unwritten” policy or whether such a
policy is constitutes a reasonable employment practice.


