                              Fourth Court of Appeals
                                     San Antonio, Texas
                                MEMORANDUM OPINION
                                          No. 04-13-00142-CV

                                           Joe A. ZUNIGA,
                                               Appellant

                                             v.
The City of San Antonio, Acting by and through its Agent City Public Service Board d/b/a CPS
THE CITY OF SAN ANTONIO, Acting By and Through its Agent City Public Service Board
                                     d/b/a CPS Energy,
                                          Appellee

                     From the 131st Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2011-CI-14216
                          Honorable Cathleen M. Stryker, Judge Presiding

Opinion by:       Rebeca C. Martinez, Justice

Sitting:          Sandee Bryan Marion, Justice
                  Rebeca C. Martinez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: January 8, 2014

AFFIRMED

           Joe A. Zuniga appeals from a summary judgment granted in favor of his former employer,

The City of San Antonio, Acting By and Through its Agent City Public Service Board d/b/a CPS

Energy on Zuniga’s claim for retaliatory discharge. Because Zuniga failed to present more than a

scintilla of evidence that the stated reason for his termination was a pretext for retaliation, we

affirm the judgment of the trial court.
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                                          BACKGROUND

       Zuniga began working for CPS Energy in 1989 as a custodian. He was later promoted to

the position of Journeyman Carpenter. In September 2009, Zuniga made a “lengthy protected

complaint” to CPS Energy Director Brenda Siller regarding ethnic and racial discrimination, and

also raised other complaints regarding the work atmosphere and conduct of his co-workers and

supervisor based on their falsification of timesheets. Ms. Siller investigated the complaints over a

three-month period and found no violations of company policy.

       In February 2010, Zuniga threw a roll of duct tape at a wall while at work. According to

Zuniga, he was frustrated that other employees asked him for supplies after failing to stock their

vehicles with sufficient supplies to complete jobs. Zuniga was accused of throwing the tape at his

foreman, who happened to be in an adjacent elevator. Because of this incident, Zuniga was placed

on decision-making leave.

       Decision-making leave is part of CPS Energy’s Corrective Action Policy, a progressive

discipline policy which includes four steps: coaching, oral reminder, written reminder, and finally,

decision-making leave. “Decision-making leave” is a corrective action whereby the employee is

given a day off to consider the reason for the corrective action, and whether the employee would

like to remain employed with the employer. If the employee decides to remain employed, he must

agree in writing to comply with the employer’s standards of conduct and safety rules, practices,

policies, and performance expectations. The employee is then allowed to return to work “with the

understanding that if a positive change in behavior or work performance does not occur, or if

another problem arises, the employee will be subject to termination.” The decision-making leave

status remains in effect for a period of 12 months.

       According to Zuniga, CPS Energy retaliated against him for filing the September 2009

complaint by immediately placing him on decision-making leave instead of following the
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progressive discipline policy. Zuniga then filed a grievance requesting that the decision-making

leave be changed to an oral or written reminder. CPS Energy management, however, elected to

uphold the decision-making leave.

       On September 23, 2010, Zuniga placed a ladder in the bed of a CPS Energy truck (which

had diamond plate flooring) to see the top of a leaky roof. A CPS Energy safety specialist was in

the area and photographed the ladder in the bed of the truck. Zuniga told the investigative safety

specialist that he had not actually climbed the ladder, and that he had intended to use the ladder to

climb only three feet to see which smoke stack was leaking. Zuniga chose to use the ladder in the

truck bed instead of using a secure, permanently installed ladder in the rear of the building. On

October 5, 2010, Zuniga was notified that his decision-making leave status had been extended an

additional 12 months. Zuniga was warned that his “job [was] in jeopardy, and failure to improve

to acceptable performance levels could result in [his] dismissal.”

       On October 13, 2010, Zuniga filed a complaint with the Equal Employment Opportunity

Commission and the Texas Workforce Commission asserting a complaint of retaliation by CPS

Energy.

       On or about October 22, 2010, Zuniga was injured while using a table saw at work. The

tip of his thumb was cut off, resulting in impairment and disability to his hand. Zuniga alleged

that the injury was caused by a table saw “kick back.” He also alleged that the saw was old and

defective and that no inspections or maintenance had been performed on the saw by the safety

specialist. CPS Energy determined that the accident was preventable and was caused by user error.

Because he committed a safety violation while on decision-making leave status, Ms. Siller made

the final decision to separate Zuniga’s employment.          In her memorandum recommending

termination, Ms. Siller states that “Safety is one [of] CPS Energy’s Core Values” and that



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“Zuniga’s unsafe acts have put himself, and could have put others, at risk.” CPS Energy terminated

Zuniga’s employment on November 23, 2010.

        On August 31, 2011, Zuniga filed suit against CPS Energy under section 451.001 of the

Texas Labor Code alleging that he was discriminated against because he sustained and reported

his on-the-job injury. See TEX. LAB. CODE ANN. § 451.001 (West 2006). On May 3, 2012, Zuniga

filed his Second Amended Petition, wherein he additionally alleged that he was discharged and

discriminated against because he filed an internal complaint of discrimination, and thus sought

redress under Chapter 21 of the Labor Code. See TEX. LAB. CODE ANN. § 21.055 (West 2006).

        CPS Energy subsequently filed a traditional and no-evidence motion for summary

judgment, arguing that Zuniga failed to: (1) exhaust his administrative remedies on his

discrimination claim; (2) timely allege claims of discrimination or retaliation within the 60-day

period prescribed by the Labor Code; (3) establish a prima facie case of discrimination or

retaliation; and (4) refute CPS Energy’s legitimate, nondiscriminatory and non-retaliatory reason

for its decision to terminate Zuniga’s employment, which was that Zuniga was terminated solely

due to his repeated safety and disciplinary infractions. CPS Energy also filed a plea to the

jurisdiction on similar grounds. After a hearing, the motion for summary judgment was denied as

moot as to Zuniga’s Chapter 21 discrimination claims and granted as to Zuniga’s Chapter 21

retaliation claim. 1 Zuniga now appeals, arguing the trial court erred in granting the motion for

summary judgment on his retaliation claim.

                                           STANDARD OF REVIEW

        We review a summary judgment de novo. Mann Frankfort Stein & Lipp Advisors, Inc. v.

Fielding, 289 S.W.3d 844, 848 (Tex. 2009); Provident Life & Accident Ins. Co. v. Knott, 128


1
 The plea to the jurisdiction was granted as to Zuniga’s Chapter 21 discrimination claims and denied as to Zuniga’s
Chapter 21 retaliation claim.

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                                                                                      04-13-00142-CV


S.W.3d 211, 215 (Tex. 2003). We review the evidence presented in 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. See Fielding, 289 S.W.3d at 848; City of Keller v. Wilson, 168

S.W.3d 802, 827 (Tex. 2005).

       The party moving for traditional summary judgment bears the burden of showing no

genuine issue of material fact exists and it is entitled to judgment as a matter of law. TEX. R. CIV.

P. 166a(c); see also Knott, 128 S.W.3d at 216. To prevail as a defendant, the movant must either

conclusively negate at least one essential element of each of the plaintiff’s causes of action or

conclusively establish each element of an affirmative defense that would overcome the plaintiff’s

cause of action. Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997).

       In a no-evidence summary judgment motion, the movant contends there is no evidence of

one or more essential elements of the claims for which the nonmovant would bear the burden of

proof at trial. TEX. R. CIV. P. 166a(i). The trial court must grant the motion unless the nonmovant

produces more than a scintilla of evidence raising a genuine issue of material fact on the challenged

elements. See id.; see also W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). The

nonmoving party is not required to marshal its proof; its response need only point out evidence

that raises a fact issue on the challenged elements. TEX. R. CIV. P. 166a(i); Ronald Holland’s A-

Plus Transmission & Auto., Inc. v. E-Z Mart Stores, Inc., 184 S.W.3d 749, 760 (Tex. App.—San

Antonio 2005, no pet.).

                                            DISCUSSION

       In its no-evidence motion for summary judgment, CPS Energy asserted that Zuniga failed

to establish a prima facie case of retaliation because he presented no evidence of a causal

connection between his alleged protected activity and the termination of his employment. To
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                                                                                      04-13-00142-CV


establish a prima facie case of retaliation, a plaintiff must show that: (1) he engaged in a protected

activity; (2) the employer took an adverse employment action against him; and (3) a causal link

existed between the protected activity and the adverse action. Herbert v. City of Forest Hill, 189

S.W.3d 369, 376 (Tex. App.—Fort Worth 2006, no pet.). CPS Energy specifically alleged that

the lack of temporal proximity between the filing of Zuniga’s internal complaints in 2009 and his

second decision-making leave in October 2010 and his termination in November 2010 precludes

a causal connection.

       Assuming that Zuniga presented more than a scintilla of evidence that a causal link existed

between his internal complaint and his termination, thus establishing a prima facie case of

retaliation, the burden shifted to CPS Energy to articulate a non-retaliatory reason for the adverse

employment action. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973); Hernandez

v. Grey Wolf Drilling, L.P., 350 S.W.3d 281, 286 (Tex. App.—San Antonio 2011, no pet.); McCoy

v. Tex. Instruments, Inc., 183 S.W.3d 548, 554 (Tex. App.—Dallas 2006, no pet.). If the employer

articulates a legitimate, non-retaliatory reason for the adverse employment action, the burden shifts

back to the employee to show that the articulated reasons are pretextual. See Quantum Chem.

Corp. v. Toennies, 47 S.W.3d 473, 482 (Tex. 2001) (stating plaintiffs pursuing claims under the

TCHRA must “show that discrimination was a motivating factor in an adverse employment

decision”); Hernandez, 350 S.W.3d at 284.

       To raise a fact issue on the pretext element of a retaliation claim, the employee must present

evidence proving the reasons stated by the employer were not its true reasons, but were a pretext

for retaliation, or the reasons were not credible. See Reeves v. Sanderson Plumbing Prods., Inc.,

530 U.S. 133, 143 (2000); Crutcher v. Dallas Indep. Sch. Dist., 410 S.W.3d 487, 497 (Tex. App.—

Dallas 2013, no pet.). An employer is entitled to judgment as a matter of law if the record

conclusively establishes some other, non-retaliatory reason for the employer’s decision, or if the
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                                                                                      04-13-00142-CV


plaintiff creates only a weak issue of fact as to whether the employer’s reason was untrue and there

was abundant and uncontroverted independent evidence that no retaliation had occurred. See

Reeves, 530 U.S. at 148. The issue at the pretext stage is not whether the employer made an

erroneous decision; it is whether the decision, even if incorrect, was the real reason for the

employment determination. See Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 899 (5th Cir.

2002). The employer “is entitled to be unreasonable so long as it does not act with discriminatory

animus.” Id. If the employee intends to show the explanation is so unreasonable it must be

pretextual, it is the employee’s burden to proffer evidence creating a fact issue regarding

reasonableness. Id.

       Here, the summary judgment record reflects that CPS Energy claimed it terminated

Zuniga’s employment because he engaged in repeated, unsafe, and dangerous conduct, including:

(1) throwing a roll of duct tape in anger at another employee; (2) dangerously erecting a ladder in

the bed of his truck, and insisting it was safe to do so; (3) using a table saw in an unsafe and

improper manner, such that he put his own safety and that of his coworkers at risk. An employer’s

enforcement of safety policies is a legitimate reason for discharge. See, e.g., Gutierrez v. Contract

Freighters, Inc., No. 04-04-00912-CV, 2006 WL 1328099, at *3 (Tex. App.—San Antonio May

17, 2006, no pet.) (mem. op.) (appellant’s unsatisfactory safety record was legitimate

nondiscriminatory reason for discharge which appellant failed to rebut).

       Given that CPS Energy articulated a legitimate non-retaliatory reason for its decision to

discharge Zuniga, the burden shifted to Zuniga to present evidence of pretext. The Supreme Court

of Texas has held that the relevant inquiry at this stage is “not whether the complaints made against

[the employee] were a pretext, but what they were a pretext for.” Wal-Mart Stores, Inc. v.

Canchola, 121 S.W.3d 735, 740 (Tex. 2003) (per curiam) (emphasis in original). In his affidavit

attached to the response to the motion for summary judgment, Zuniga claimed that CPS Energy’s
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explanation for his disciplinary write ups and termination are not worthy of credence. He

specifically averred that the basis for the company’s determination that the table saw incident was

a preventable accident was false, and that, in actuality, the defective table saw caused the accident.

A generalized assertion of falsity, however, is not enough to raise a fact issue as to pretext. See

Crutcher, 410 S.W.3d at 498. Zuniga’s assertion that the table saw investigation arrived at an

incorrect conclusion is also insufficient to raise a genuine issue of material fact as to pretext. See

Jespersen v. Sweetwater Ranch Apartments, 390 S.W.3d 644, 656-57 (Tex. App.—Dallas 2012,

no pet.) (pretext analysis asks whether employer’s description for its reasons for a decision are

honest, not whether they are right). Evidence that an employer’s investigation came to an incorrect

conclusion does not establish an improper motivation behind an adverse employment decision.

Chandler v. CSC Applied Techs., LLC, 376 S.W.3d 802, 818 (Tex. App.—Houston [1st Dist.]

2012, pet. denied) (“Management does not have to make proper decisions, only non-discriminatory

ones.”) (quoting Bryant v. Compass Grp. USA, Inc., 413 F.3d 471, 478 (5th Cir. 2005)). Thus,

even if it is untrue that Zuniga is to blame for the table saw accident, Zuniga still bore the burden

to raise a fact issue from which a jury could infer that CPS Energy terminated him because he filed

an internal complaint. See Reeves, 530 U.S. at 147-49; Canchola, 121 S.W.3d at 740. Zuniga has

not met this burden. See Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981) (the

burden of persuasion that the employer intentionally discriminated against the employee remains

always with the employee).

       Although Zuniga complains that CPS Energy’s reason for terminating his employment was

false, he failed to present any evidence that CPS Energy did not in good faith believe his

unsatisfactory safety record posed a danger to Zuniga and others, but instead used his past safety

violations as a pretext to terminate his employment in retaliation. See Canchola, 121 S.W.3d at

740 (“[I]t is not sufficient for Canchola to present evidence that the harassment investigation was
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imperfect, incomplete, or arrived at a possibly incorrect conclusion. He must show that the reason

proferred by Wal-Mart is false, and that discrimination was the real reason.”) (internal citation

omitted); Chandler, 376 S.W.3d at 822. Zuniga therefore failed to present more than a scintilla of

evidence that the stated reason for his termination was a pretext for retaliation. See Claymex Brick

& Tile, Inc. v. Garza, 216 S.W.3d 33, 37 (Tex. App.—San Antonio 2006, no pet.) (subjective and

speculative beliefs of retaliatory treatment alone are insufficient to overcome motion for summary

judgment); Jespersen, 390 S.W.3d at 656 (same). Thus, even if Zuniga met his burden to establish

a prima facie case of retaliation, the summary judgment evidence shows a legitimate, non-

retaliatory reason for CPS Energy’s employment decision, and Zuniga failed to demonstrate that

this reason was merely pretextual. Accordingly, we cannot conclude that the trial court erred in

granting the no-evidence motion for summary judgment on Zuniga’s retaliation claim.

                                          CONCLUSION

        Based on the foregoing, we overrule Zuniga’s sole issue on appeal and affirm the judgment

of the trial court.



                                                 Rebeca C. Martinez, Justice




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