                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS


 ROSALIO ARELLANO,                               §
                                                                 No. 08-08-00305-CV
                    Appellant,                   §
                                                                    Appeal from the
 v.                                              §
                                                              171st Judicial District Court
                                                 §
 AMERICANOS USA, LLC,                                          of El Paso County, Texas
                                                 §
                    Appellee.                                      (TC# 2007-3771)
                                                 §


                                          OPINION

       Appellant, Rosalio Arellano (“Mr. Arellano”), brought action against Appellee,

Americanos USA, LLC (“Americanos” or “the company”), alleging the company retaliated

against him after he filed a workers’ compensation claim. He now appeals the trial court’s order

granting Americanos’ motion for summary judgment. We reverse the trial court’s judgment and

remand the case to the trial court for further proceedings.

       Mr. Arellano worked primarily as a bus driver for Americanos for more than two and a

half years. In October 2005, he injured his back while stepping off of a bus he was driving from

El Paso, Texas to California. He filed a workers’ compensation claim, and Americanos sent him

to Concentra in California for medical treatment.1 Mr. Arellano continued treatment at

Concentra once back in El Paso, and was put on light duty at work per the doctor’s orders. Later,

a non-Concentra physician treated Mr. Arellano and took him off of work from November 2005



       1
           Concentra is a national healthcare company.
through the end of 2006 for medical reasons. He resumed working as a bus driver for

Americanos in January 2007, and his last day at the company was on December 24, 2007.

       In August 2007, Mr. Arellano filed suit against Americanos, asserting wrongful

termination and discrimination in violation of Section 451.001 of the Texas Workers’

Compensation Act. In February 2008, the trial court entered a discovery control plan and

scheduling order. In August 2008, Americanos filed a traditional motion for summary judgment

and a no-evidence motion for summary judgment.2 Mr. Arellano filed his response to

Americanos’ motions for summary judgment about a month later, and he also filed an objection

to the hearing on these motions on the grounds that the summary judgment deadline had passed

based on the parties’ agreed deadline in their discovery control plan. Americanos then filed its

objections to and a motion to strike Mr. Arellano’s summary judgment evidence, specifically the

affidavit in his response to the company’s motions for summary judgment.

       The trial court held a hearing on Americanos’ motions for summary judgment on

September 23, 2008. At the hearing, the court overruled Mr. Arellano’s objection that the

summary judgment deadline had passed. At the conclusion of the hearing, the court entered an

order granting Americanos’ motion for summary judgment. In October 2008, Mr. Arellano filed

a notice of appeal.

       As an initial matter, we have found Mr. Arrellano’s brief to be seriously lacking in

substantive discussion of facts and authorities to be relied upon which brings it very close to



       2
          In its summary judgment motions, Americanos advanced the following summary
judgment theories: (1) the company did not terminate Mr. Arellano; (2) Mr. Arellano failed to
show a causal connection between the alleged discharge or discriminatory acts and a protected
activity under Chapter 451.

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waiving his complaints. See Jimenez v. Citifinancial Mortg. Co., Inc., 169 S.W.3d 423, 426

(Tex.App.--El Paso 2005, not pet.). Nevertheless, we have looked past those failings and find

that the record before us is sufficient to reach the merits of his appeal.

       In Issue One, Mr. Arellano argues Americanos’ motions for summary judgment violated

the parties’ discovery control plan and scheduling order. Mr. Arellano contends Americanos

should have applied for a leave of court to modify the summary judgment deadline, and the trial

court erred in allowing the summary judgment hearing to proceed thirteen days before trial when

the parties had expressly agreed that the summary judgment deadline was thirty days before trial.

       The trial court’s discovery control plan indicated the “summary judgment deadline” as

thirty days before trial, and it set the trial date as October 6, 2008. Americanos filed its motions

for summary judgment on August 20, 2008, which was more than thirty days before trial. The

court held a hearing on the motions on September 23, 2008. Because Americanos filed its

motions for summary judgment at least thirty days before trial, it did not violate the summary

judgment deadline in the discovery control plan and scheduling order. Issue One is overruled.

       In Issue Two, Mr. Arellano argues Americanos waived its objections to the evidence in

support of his summary judgment response, and that even if the trial court made an implicit

ruling granting the company’s motion to strike his affidavit, the court erred in doing so.

Specifically, Mr. Arellano asserts Americanos waived its objections to his affidavit by failing to

obtain rulings from the trial court on its objections and motion to strike, and that in any case, his

affidavit was not a sham affidavit, as the company claimed.

       Failure to obtain written rulings on objections to summary judgment evidence waives the

issue, unless the record reflects an implicit ruling by the trial court. TEX .R.APP .P. 33.1(a)(2)(A)


                                                  -3-
(trial court must either expressly or implicitly rule on an objection for a complaint to be

preserved for review); Torres v. GSC Enterprises, Inc., 242 S.W.3d 553, 560 (Tex.App--El Paso

2007, no pet.); Strunk v. Belt Line Road Realty, Co., 225 S.W.3d 91, 99 (Tex.App.--El Paso

2005, no pet.). For there to be an implicit ruling, the record must contain something indicating

that the trial court ruled on the objections, other than the mere granting of a motion for summary

judgment. Torres, 242 S.W.3d at 560; Strunk, 225 S.W.3d at 99. In this case, there is no

indication that Americanos’ objection to Mr. Arellano’s affidavit was ruled upon either explicitly

or implicitly.3 As such, the company’s objection is waived, and the objected-to summary

judgment evidence remains a part of the summary judgment record. Accordingly, we may

consider Mr. Arellano’s affidavit in our review of the merits of this appeal.

       In Issues Three and Four, Mr. Arellano argues the trial court erred in granting summary

judgment on either traditional or no-evidence grounds. Because the trial court did not specify the

grounds upon which it granted the motion, we will affirm, if any ground asserted has merit.

Western Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005).

       As with any summary judgment ruling, a traditional summary judgment is subject to de

novo review. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). To

succeed on a traditional motion for summary judgment, the movant must establish that there is no

genuine issue of material fact so that judgment should be granted as a matter of law.

TEX .R.CIV .P. 166a(c); see also Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 846



       3
         The order does not contain any language indicating the trial court reviewed “all
competent summary judgment evidence,” language that has been found adequate to support a
finding the trial court implicitly sustained objections to the appellant’s summary judgment
evidence. See Frazier v. Yu, 987 S.W.2d 607, 610 (Tex.App.--Fort Worth 1999, pet. denied).

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(Tex. 2005). Summary judgment is therefore properly granted if the defendant disproves at least

one essential element of the plaintiff’s cause of action, or establishes all essential elements of an

affirmative defense. See D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002); Shah v.

Moss, 67 S.W.3d 836, 842 (Tex. 2001). If the movant is successful in establishing its right to

judgment as a matter of law, the burden then shifts to the non-movant to produce evidence

raising a genuine issue of material fact. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d

671, 678-79 (Tex. 1979). As in a review under the no-evidence standard, the reviewing court

will take as true all competent evidence favorable to the non-movant, indulge every reasonable

inference, and resolve any doubts in the non-movant’s favor. See Grant, 73 S.W.3d at 215.

Unlike a no-evidence motion however, a traditional motion for summary judgment must stand or

fall on its own merit; there is no right to a traditional summary judgment by default. See City of

Houston, 589 S.W.2d at 678.

       A no-evidence motion for summary judgment is essentially a pretrial motion for directed

verdict. Gray v. Woodville Health Care Center, 225 S.W.3d 613, 616 (Tex.App.--El Paso 2006,

pet. denied). A no-evidence summary judgment movant must specify which essential elements

are devoid of evidentiary support. TEX .R.CIV .P. 166a(i); see also Aguilar v. Morales, 162

S.W.3d 825, 834 (Tex.App.--El Paso 2005, pet. denied). The burden then shifts to the

non-movant to produce summary judgment evidence raising a genuine issue of material fact

regarding each challenged element. Aguilar, 162 S.W.3d at 834. The non-movant meets this

burden, thereby defeating the no-evidence motion, by producing more than a mere scintilla of

evidence in support of each challenged element. See Gray, 225 S.W.3d at 616. A “scintilla” of

evidence rises to the level that enables reasonable minds to differ in the conclusions to be drawn


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therefrom. See King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003).

       A no-evidence motion is properly granted when the non-movant fails to produce proper

summary judgment evidence, or the evidence produced is so weak as to create no more than a

mere surmise or suspicion. See King Ranch, Inc., 118 S.W.3d at 751. On appeal, we conduct a

de novo review of the trial court’s ruling to determine whether or not the non-movant’s evidence

demonstrated that a material fact issue exists on each of the challenged elements. See id. When

conducting such a review, the appellate court must view the evidence in the light most favorable

to the non-movant. See Gray, 225 S.W.3d at 616. When, as here, the trial court fails to specify

which no-evidence ground served as the basis for its ruling, we must review each ground raised

in the motion, and the judgment will be affirmed if any of the theories prove meritorious. Id. at

617.

       Here, Americanos’ grounds for traditional summary judgment were: (1) the company did

not terminate Mr. Arellano; and (2) Mr. Arellano failed to show that there was a causal

connection between the alleged discharge or discriminatory acts and a protected activity under

Chapter 451. First, Americanos contends it never terminated Mr. Arellano, and that according to

Mr. Arellano’s deposition testimony, his injury led him to leave the company. Second, the

company asserts that based on Mr. Arellano’s deposition testimony, there was no evidence of a

causal link between his workers’ compensation claim and the alleged discrimination or wrongful

termination; instead it was Mr. Arellano’s “legitimate personal action” that resulted in the alleged

discrimination, and his injury that resulted in his termination.

       Chapter 451 of the Texas Labor Code provides: “A person may not discharge or in any

other manner discriminate against an employee because the employee has: filed a workers’


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compensation claim in good faith,” or otherwise participated in a workers’ compensation claim

or suit in specified ways. TEX .LAB.CODE ANN . § 451.001 (Vernon 2006). Section 451.001 is a

statutory exception to the Texas common-law doctrine of employment-at-will. Lozoya v. Air

Systems Components, Inc., 81 S.W.3d 344, 347 (Tex.App.--El Paso 2002, no pet.); Jenkins v.

Guardian Industries Corp., 16 S.W.3d 431, 435 (Tex.App.--Waco 2000, pet. denied). The

purpose of this statute is to protect persons entitled to benefits under the Workers’ Compensation

Act and to prevent them from being discharged for filing claims to collect those benefits. Trico

Technologies Corp. v. Montiel, 949 S.W.2d 308, 312 (Tex. 1997); Lozoya, 81 S.W.3d at 347.

Thus, the section has both remedial and deterrence objectives. Lozoya, 81 S.W.3d at 347.

       In workers’ compensation retaliation claims, an employee can recover damages for

retaliatory discharge under this provision only if he proves that without his filing a workers’

compensation claim, the discharge would not have occurred when it did. Continental Coffee

Products Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996); Lozoya, 81 S.W.3d at 347. This

causal link may be established by direct or circumstantial evidence. Lozoya, 81 S.W.3d at 347.

Circumstantial evidence sufficient to establish a causal link between termination and filing a

compensation claim includes: (1) knowledge of the compensation claim by those making the

decision to terminate; (2) a negative attitude toward the employee’s injured condition; (3) failure

to adhere to established company policies; (4) discriminatory treatment of the injured employee

in comparison to similarly situated employees; and (5) providing incentives to refrain from

reporting on-the-job injuries. Lozoya, 81 S.W.3d at 347-48; Wyler Industrial Works, Inc. v.

Garcia, 999 S.W.2d 494, 501 (Tex.App.--El Paso 1999, no pet.). Further, proof that the stated

reasons for the discharge are false is sufficient to establish that the employee was terminated in


                                                -7-
violation of Section 451.001. Lozoya, 81 S.W.3d at 348, citing Continental Coffee, 937 S.W.2d

at 452. Once the link is established, it is the employer’s burden to rebut the alleged

discrimination by showing there was a legitimate reason behind the discharge. Lozoya, 81

S.W.3d at 348; Terry v. Southern Floral Co., 927 S.W.2d 254, 257 (Tex.App.--Houston [1st

Dist.] 1996, no pet.). The employee then has the burden to either produce evidence raising a fact

issue on whether the employer’s stated reason was a pretext for retaliatory action, or challenge

the employer’s summary judgment evidence as failing to prove as a matter of law that the stated

reason was legitimate and nondiscriminatory. See Benners v. Blanks Color Imaging, Inc., 133

S.W.3d 364, 369 (Tex.App.--Dallas 2004, no pet.).

       So we disagree with Americanos that Mr. Arellano failed to establish the company

terminated his position, and that he failed to establish a causal link between his workers’

compensation filing and the alleged discrimination and wrongful termination, when we examine

the record in the light most favorable to Mr. Arellano, disregarding all contrary evidence and

inferences. See Gray, 225 S.W.3d at 616. According to Mr. Arellano’s affidavit, the company

discharged him from his employment after he sustained the work-related injury by ceasing to

offer him bus routes to drive, putting him on the work schedule, and communicating with him.

He also testified that subsequent to being injured and put on light duty by Concentra, Americanos

expressed a negative attitude towards his injured condition by terminating his position as a bus

driver and demoting him to a janitorial position. As a result, he earned a lower wage than before,

and was subjected to humiliation due to the tasks he had to undertake. Mr. Arellano left the

company between November 2005 and the end of 2006 because his personal doctor took him off

of work for medical reasons. He resumed work as a bus driver for the company in January 2007,


                                                -8-
but the company continued to express a negative attitude towards his injured condition and

subjected him to discriminatory treatment. For example, Mr. Arellano’s supervisor,

Mr. Chavarria, persisted in changing his co-driver instead of allowing him to work with the same

individual, which prevented him from “developing . . . trust and rapport with [his] team driver.”

According to Mr. Arellano, this “was never the case before [his] on-the-job injury,” nor was it

the case with other drivers who did not claim for workers’ compensation benefits. Other

instances in which Americanos treated Mr. Arellano differently than before his injury and

differently from other drivers included assigning him buses that were dirty or had mechanical

problems, denying his request to be assigned to a properly functioning bus, denying his request

for taking a day off, and assigning him less routes or less desirable routes. Since his injury,

Mr. Chavarria told Mr. Arellano that he was a problematic employee, would not respond to his

questions, or look directly at Mr. Arellano when Mr. Arellano spoke to him. According to

Mr. Arellano, the company ceased offering him bus routes to drive, and ignored his attempts to

communicate with its employees after his last day at work. Since then, he had not received

workers’ compensation or any medical benefits.

       Examining the record in the light most favorable to Mr. Arellano, we determine that there

are genuine issues of material fact as to whether Mr. Arellano was discharged or discriminated

against for filing a workers’ compensation claim. Moreover, the record reflects that Americanos

did not establish all elements of an affirmative defense. Because Americanos failed to establish

that there were no genuine issues of material fact as to Mr. Arellano’s retaliation claim, we

conclude the trial court erred in granting summary judgment as a matter of law. See

TEX .R.CIV .P. 166a(c); Rubio, 185 S.W.3d at 846. We sustain Issue Three.


                                                 -9-
       In Issue Four, Mr. Arellano contends summary judgment was not properly granted under

Texas Rule of Civil Procedure 166a(i). In its no-evidence motion for summary judgment,

Americanos argued Mr. Arellano failed to produce any evidence so as to create a genuine issue of

material fact with respect to all of the following elements for Section 451.001 retaliatory

discharge: (1) an employee; (2) who is discharged or discriminated against in any manner; (3)

because the employee has filed a workers’ compensation claim in good faith; and (4) that “but

for” the employee’s filing of a workers’ compensation claim, the discharge would not have

occurred when it did. See TEX .LAB.CODE ANN . § 451.001(1); Cazarez, 937 S.W.2d at 450. We

have already determined that there are genuine issues of material fact as to the second element,

that the company terminated or discriminated against Mr. Arellano, and the fourth element, that

Mr. Arellano’s discharge or discrimination was connected to his filing of a workers’

compensation claim. We also determined that Mr. Arellano met his initial burden on the causal

link, and that Americanos did not meet its burden to show a legitimate reason for the alleged

discharge because the record is devoid of any evidence on this matter. Mr. Arellano’s affidavit

also clearly indicates that Americanos employed him from March 3, 2004 through November 7,

2005, and from January 2007 through December 24, 2007, and that he filed a workers’

compensation claim in good faith after he sustained the injury. Therefore, there are genuine

issues of material fact with respect to these elements as well. As such, there is more than a mere

scintilla of evidence in support of all the elements of Mr. Arellano’s cause of action, and

summary judgment was also not granted properly under Rule 166a(i). See TEX .R.CIV .P. 166a(i);

King Ranch, 118 S.W.3d at 751; Gray, 225 S.W.3d at 616. We will also sustain Issue Four.

       Having determined that none of the grounds advanced for summary judgment have merit,


                                                -10-
we reverse the trial court’s judgment and remand the case for further proceedings.



November 29, 2010
                                              DAVID WELLINGTON CHEW, Chief Justice

Before Chew, C.J., McClure, and Rivera, JJ.




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