                                                                                        ACCEPTED
                                                                                    12-14-00155-CV
                                                                       TWELFTH COURT OF APPEALS
                                                                                     TYLER, TEXAS
                                                                               7/9/2015 11:15:24 AM
                                                                                      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
                                                           7/9/2015 11:15:24 AM
                               * * * * *                        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’ REPLY 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
                                          TABLE OF CONTENTS
                                                                                                   Page
TABLE OF CONTENTS..........................................................................................2

TABLE OF AUTHORITIES.....................................................................................3

INTRODUCTION ....................................................................................................4

ARGUMENT AND AUTHORITIES .......................................................................7
  I. LOWE’S ARGUMENT IMPLICITLY DISREGARDS THE STANDARD OF REVIEW
     APPLICABLE TO DIRECTED VERDICTS ...............................................................7
  II. THERE IS MORE THAN A SCINTILLA OF EVIDENCE THAT APPELLANTS’
      WORKERS’ COMPENSATION CLAIMS WERE A CAUSE OF THEIR TERMINATIONS.
      ..........................................................................................................................8
  III. THE LEAVE OF ABSENCE POLICY WAS NOT FOLLOWED; THIS CASE IS FAR
       MORE SIMILAR TO ECHOSTAR THAN THE CASES RELIED ON BY LOWE’S.........18

CONCLUSION .......................................................................................................24

CERTIFICATE OF SERVICE.................................................................................26

CERTIFICATE OF COMPLIANCE .......................................................................26




                                                                                                                             2
                                                 TABLE OF AUTHORITIES
                                                                                                                                                 Page
Cases

Armendariz v. Redcats USA, L.P., 390 S.W.3d 463 (Tex. App. – El Paso 2012, no pet.)...........14

Aust v. Conroe Indep. Sch. Dist., 153 S.W.3d 222 (Tex. App. – Beaumont 2004, no pet.) ..........14

Baptist Memorial Healthcare Sys. v. Casanova, 2 S.W.3d 306 (Tex. App.--San Antonio 1999, pet.
  denied) .............................................................................................................................................. 16

Benners v. Blanks Color Imaging, Inc., 133 S.W.3d 364 (Tex. App. – Dallas 2004, no pet.)..........10

City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) ....................................................................9, 22

Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227 (Tex. 2004) ........................6, 8

Collora v. Navarro, 574 S.W.2d 65 (Tex. 1978) ...................................................................................8

Cont'l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444 (Tex. 1996) .............................................passim

Echostar Satellite, L.L.C. v. Aguilar, 394 S.W.3d 276 (Tex. App. – El Paso 2012, pet. denied)
  .................................................................................................................................................... passim

Haggar Clothing Co. v. Hernandez, 164 S.W.3d 386 (Tex. 2005) ......................................................24

Henson v. Reddin, 358 S.W.3d 428 (Tex.App. – Fort Worth 2012, no pet.)...................................9

Jenkins v. Guardian Indus. Corp., 16 S.W.3d 431 (Tex. App. – Waco 2000, pet. denied) ..............9

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

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.) .....................................................16

Parker v. Valerus Compression Servs., LP, 365 S.W.3d 61 (Tex. App. – Houston [1st Dist. 2011,
  pet. denied)....................................................................................................................................... 24

Texas Division-Tranter, Inc. v. Carrozza, 876 S.W.2d 312 (Tex. 1994) ............................................24

White v. Southwestern Bell Tel. Co., 651 S.W.2d 260 (Tex. 1983) ...................................................6, 8




                                                                                                                                                         3
                                          INTRODUCTION

          There are two glaring infirmities in the argument presented by Lowe’s Home

Centers, Inc. (“Lowe’s”) in its brief to this Court. First, a careful review of the

argument reveals that Lowe’s is fundamentally misunderstanding or misapplying the

standard of review applicable to appellate review of a directed verdict.           Lowe’s

arguments are repeatedly characterized in terms of how the evidence for each of the

Cont’l Coffee factors “weighs” in favor of Lowe’s. However, that is not the standard of

review applicable to the directed verdict in this case. Rather, the Court is tasked with

determining whether there is at least a scintilla of evidence to support the Cont’l Coffee

factors.1

          Framed around the proper scope of this Court’s review of a directed verdict,

the Court’s task is very specific and direct: the Court must determine if there is a

scintilla of evidence to support at least three of the five Cont’l Coffee factors, which is

all that is required under Texas law to demonstrate causation in a workers’

compensation retaliation case. This is not an evidentiary weighing process as Lowe’s

implies. Weighing evidence is for a jury, the trial court’s directed verdict prevented a

jury from weighing the evidence.

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

party against whom the verdict was instructed and disregard all contrary evidence and

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

1   Cont'l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996).

                                                                                        4
by the evidence.” Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227,

233-234 (Tex. 2004) (citing White v. Southwestern Bell Tel. Co., 651 S.W.2d 260, 262 (Tex.

1983)). Applying this standard, there was substantial evidence to support – not just

three – but all five of the Cont’l Coffee factors.

       The second infirmity is Lowe’s inability to distinguish the most directly on-

point case cited by either party in their briefing to this Court. The case most similar

to this one is Echostar Satellite, L.L.C. v. Aguilar, 394 S.W.3d 276 (Tex. App. – El Paso

2012, pet. denied), in which the El Paso Court of Appeals found sufficient evidence

of retaliatory motive and causation where a company “deviated from their policies” by

making an employee who had made workers’ compensation claims work against their

light duty restrictions or be fired, and further deviated from their policies by failing to

notify the worker in writing, advising him of the expiration of his leave prior to

terminating his employment.” Id. at 288. Lowe’s briefing does not even address the

Echostar case, despite that it was extensively discussed and block-quoted in Appellants’

brief. Appellants’ Brief at p. 45-46.

       The record evidence here shows that Lowe’s management actually knew these

employees were working on light duty restrictions and had made workers’

compensation claims. There is more than a scintilla of evidence that these same

Lowe’s managers made disparaging and negative remarks not just about workers’

compensation claimants in general, but these four workers in particular, including

testimony from two individuals who were personally present in discussions with those

                                                                                        5
managers and heard such statements. There is more than a scintilla of evidence that

each of the Appellants was worked against their light duty restrictions and threatened

with termination and insulted when they protested – just as in Echostar. There is more

than a scintilla of evidence that Lowe’s managers did not notify the employees that

they had been put on a “personal leave” system with a limited duration – just as in

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

Finally, there is evidence that none of these employees were warned they would be

terminated under the personal leave policy (to which they did not even know they had

been subjected) until after each of them had already been terminated – just as in

Echostar.

       Considering all of the evidence in the light most favorable to Appellants, as the

Court must, there was more than a scintilla of evidence to establish retaliation was the

cause of their terminations and that Lowe’s attempt to rely on its personal leave

policy, which it did not even follow, was a false pretext. Under the proper standard of

review, this evidence must be weighed by a jury. The directed verdict was error and

the judgment must be reversed and remanded for a full trial on the merits.




                                                                                     6
                        ARGUMENT AND AUTHORITIES

I.     LOWE’S ARGUMENT IMPLICITLY DISREGARDS THE STANDARD OF REVIEW
       APPLICABLE TO DIRECTED VERDICTS

       With regard to almost every Cont’l Coffee factor, Lowe’s selectively chooses parts

of the record it believes supports its factual positions and argues that the evidence

“weighs” in favor of Lowe’s. Appellee’s Brief at pp. 26, 28, 31-32 and 34. This is not

a proper legal argument in support of a directed verdict. In the procedural posture in

which this case stands before the Court, this Court’s task is not to weigh evidence that

was never considered by a jury.

       As explained in Appellants’ principal brief, in reviewing 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. (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 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)).

       The standard of review for evidentiary sufficiency does not allow for the

arguments Lowe’s makes here – picking through the record and finding its own

controverting favorable evidence that “weighs” in its favor. Instead, the Court must

credit favorable evidence if reasonable jurors could, and disregard contrary evidence unless


                                                                                         7
reasonable jurors could not. City of Keller v. Wilson, 168 S.W.3d 802, 822, 827 (Tex.

2005)(emphasis added); Henson v. Reddin, 358 S.W.3d 428, 434 (Tex. App. – Fort

Worth 2012, no pet.).

       Under this standard, there was more than a scintilla of evidence to support

more than three of the five Cont’l Coffee factors and to support the conclusion that

Lowe’s attempt to rely on its personal leave policy in terminating Appellants’

employment was a false pretext.

II.    THERE IS MORE THAN A SCINTILLA OF EVIDENCE THAT APPELLANTS’
       WORKERS’ COMPENSATION CLAIMS WERE A CAUSE OF THEIR
       TERMINATIONS.
       Since rare is the case where an employer expressly admits a retaliatory motive

for a termination, Texas law permits an employee to 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). Both parties agree that circumstantial evidence of

causation in a retaliation case is determined by considering the factors set forth in

Cont’l Coffee. Those factors are:

       (1) knowledge of the compensation claim by those making the decision
           on termination;

       (2) expression of a negative attitude towards the employee's injured
           condition;

       (3) failure to adhere to established company policies;




                                                                                     8
      (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 v. Blanks Color Imaging, Inc., 133 S.W.3d 364,

369 (Tex. App. – Dallas 2004, no pet.).

      1. Lowe’s managers knew of the claims: Lowe’s plays a bit of a shell game when it

comes to whether local managers were those making the termination decision. While

Lowe’s concedes, as it must, that there was evidence the managers at the Palestine

store were aware that all four employees had made workers’ compensation claims and

knew that all four were back on light duty under Lowe’s workers’ compensation

policies, they claim that the final decision to terminate them under the personal leave

policy was made by someone else at Lowe’s corporate. Lowe’s argument rests on the

false assumption that the retaliation was at the moment the termination letters were

issued rather than when the decision was made at the store level to force the

employees to work against their light duty restrictions and then place them on limited

personal leaves of absence without their approval or knowledge.

      That switch, which happened at the local Palestine store level, made their

terminations inevitable. Essentially, the evidence supports the reasonable inference

that the local store manager knew about the workers’ compensation claims, wanted

these employees to become Lowe’s next customers, and figured out that he could rig

the situation to automatically terminate the four employees by forcing them to stop


                                                                                     9
working by threatening and intimidating them to work against their physical

restrictions and then categorizing them as taking personal leave, triggering a clock that

would guarantee their termination.

      The decision that resulted in their termination was made at the store level, not

by Lowe’s corporate, as Lowe’s argues. The same managers that knew of the claims,

expressed negative attitudes toward them and admitted to wanting to make them

“Lowe’s next customers” are the same managers who took those actions that would

necessarily culminate in all four employees being terminated.           How this was

accomplished, and the record citations for each part of that explanation, is described

in detail on pages 22-25 of Appellants’ principal brief. In sum, however:

    Under Lowe’s leave of absence policies, there was no time limit on leave
     taken by a workers’ compensation claimant, but there was a maximum
     leave established for personal leaves of absence. (RR6:6-9)

    To place someone into the limited personal leave and trigger these
     maximum periods, 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)

    Once the employee is designated at the store level as being on a personal
     leave instead of a workers’ compensation leave, Lowe’s system then
     treats that employee as subject to the maximum number of days allowed
     under the Leave of Absence policy and will automatically terminate
     those employees when they exceed the maximum. (RR6:9-12)

    None of the four Appellants requested to be placed on personal leave.
     (RR6:26-27, 30, 31) None of them were aware that they were subject to
     a maximum period of leave until after they were already terminated,



                                                                                      10
      either, because they did not even receive warning notices before they
      were terminated. (RR4:28, 132, 203; 5:79)

      There is more than a scintilla of evidence that the terminations of these four

employees were carried out using Lowe’s system by its local managers at the store

level. Put another way, the retaliation at issue in this case was working employees

against restrictions so that they could be placed on a conveyor belt toward inevitable

termination without their knowledge or consent. There is no genuine dispute that the

managers who retaliated against Brewer, Meador, Adams and Curry were well aware

that all four employees were on light duty restrictions because they had made workers’

compensation claims.

      The evidence shows the store manager, Gonzalez, and other high-level

managers including Mike Bohem, a Zone Manager, and Nick Boren, the Operations

Manager, knew about and expressed negative attitudes about these four employees

because of their injuries is detailed on pages 35-36 of Appellants’ principal brief.

Thus, there is more than a scintilla of evidence to support the first of the Cont’l Coffee

factors – the managers that took the actions resulting in the terminations of these

employees actually knew that each employee was on workers’ compensation.

      2.     Lowe’s managers expressed a negative attitude. The second factor is also

supported by sufficient evidence. Though Lowe’s points to testimony wherein its

managers deny any retaliatory motive, reviewing the record in the light most favorable

to the Appellants, there is direct evidence that Lowe’s managers at the Palestine store


                                                                                       11
expressed negative attitudes evidencing retaliatory motives toward workers’

compensation claimants, including these four claimants in particular. This evidence is

detailed on pages 35-37, and includes testimony that the store’s general manager and

other managers expressing doubts about the injuries, and wanting to make them

“Lowe’s next customers.” There is also evidence that all four were subjected to

intimidation, threats and insults when they tried to protest that they were being

worked against the light duty restrictions provided under Lowe’s workers’

compensation policies. (RR3:52-53; 4:13-14, 123, 191; 5:76) They were all threatened

with losing their jobs if they protested being worked against the light duty policy.

(RR3:50, 52-53; 4:13-14; 5:72) Setting aside Lowe’s erroneous argument that the

Court is to “weigh” evidence in reviewing a directed verdict, there is sufficient

evidence to support the second Cont’l Coffee factor as well.

      3.      Lowe’s failed to follow numerous policies.     The third factor is likewise

supported by more than a scintilla of evidence.            There was evidence of several

substantial failures to abide by established policies. Several of these are detailed

above, including the failure to honor and follow the light duty restrictions provided

under Lowe’s workers’ compensation policy by making the employees work outside

their restrictions and threatening and intimidating them if they protested.

      In addition, the evidence showed Lowe’s failed to document when and why the

employees were switched from workers’ compensation to “personal leave” in the

Lowe’s computer system. For each employee, there should have been a form or

                                                                                      12
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, Lowe’s corporate representative could not explain

how Lowe’s could even calculate the start of the personal leave periods for these

employees since there was no documentation to support when they even started these

supposed “personal leaves.” (RR6:25) None of these employees were ever even aware

they were categorized by Lowe’s as taking personal leave until each received her

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

      There were yet other failures to follow company policy. The evidence shows

Lowe’s had a policy requiring 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) Yet, none of the employees were

aware they had been put on personal leave, or near exceeding the maximum number

of days allowed, until after each was terminated. (RR4:28, 132, 203; 5:79)

      The Court need not even consider the other two factors, as a showing that any

three of them were supported by sufficient evidence to create a fact issue would

require reversal of the directed verdict. 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.). However, even if the Court

                                                                                  13
were unconvinced that there was sufficient evidence of the first three factors, the

record supports the remaining two Cont’l Coffee factors.

      4.     The employees were treated differently from non-claimants. The most direct and

clear evidence of this is the fact that Lowe’s policies required a decision to start

personal leave be documented in Lowe’s system upon request by the employee. None

of the four employees requested that they be placed on personal leave. None of them

knew that they were on personal leave and subject to a maximum number of leave

days until after they were terminated. Lowe’s policies also required notice to be sent

to employees that were ordinarily on personal leave warning them that their leave was

about to expire before they were terminated. Thus, had these been ordinary Lowe’s

employees taking personal leave, they would have requested it, been aware that they

were on it, been aware of how long they had before they would be terminated, and

would have received a warning letter prior to termination to confirm they were about

to exceed the maximum leave.

      The evidence here shows that these employees, all of whom should have been

on workers’ compensation leave after being deliberately worked against their physical

restrictions in violation of Lowe’s workers’ compensation policy, did not request to be

put on personal leave, no personal leave was properly documented in Lowe’s system,

and no warning was sent prior to termination. The record supports that none of

these four women knew they were even subject to the personal leave maximum until



                                                                                        14
after each one’s employment had already been terminated. (RR4:28, 132, 203; 5:79)

There is more than a scintilla of evidence to support the fourth Cont’l Coffee factor.

      5. Stated reason is false. Finally, there is also evidence of the fifth Cont’l Coffee

factor because there is some evidence that Lowe’s stated reason for the termination

was false.     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 Lowe’s leave policy – which otherwise would not have

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

      As explained in Appellants’ principal brief, if 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. 05-96-01454-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”).

      As detailed above, 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

                                                                                         15
been made for each employee, and each 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.

      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

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

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

      Thus, there was evidence that the leave of absence policy was not uniformly

followed. Indeed, the leave of absence policy was not 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. A

reasonable jury could infer Lowe’s reliance on its absence control policy, which would

not apply to workers’ compensation leave because it had no maximum leave period,

                                                                                          16
was a false pretext. Gonzalez’s statements during managers’ meetings that workers’

compensation claims impacted the store budget and his bonuses and intended to

make workers’ compensation claimants into “Lowe’s next customers” also shows

Lowe’s proffered non-discriminatory reason is a false pretext covering a retaliatory

motive.

      Finally, Tinsley’s testimony that Gonzalez would move injured employees

around in order to make them “quit” (RR7:24) is direct evidence that they were not

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

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 workers’ compensation 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. There was both direct and circumstantial

evidence that a retaliatory motive was a cause of these employees’ terminations. In

fact, as explained in the next section, there is quite a bit more evidence in this case

than was found sufficient in either Kings Aire or Echostar.




                                                                                    17
   III.   THE LEAVE OF ABSENCE POLICY WAS NOT FOLLOWED; THIS
          CASE IS FAR MORE SIMILAR TO ECHOSTAR THAN THE CASES
          RELIED ON BY LOWE’S.

      The facts of this case make the retaliatory motive even more clear than in

either, Kings Aire or Echostar, where both courts found sufficient evidence that an

ostensibly neutral absence control policy was rebutted by evidence of a retaliatory

motive and failure to follow the policy. Lowe’s attempts to distinguish Kings Aire rely

on its mistaken arguments about the record evidence in this case, and minor factual

distinctions that make no meaningful difference. For instance, Lowe’s argues the

employer in Kings Aire knew about the claims but the managers responsible for the

termination here did not. However, as explained above, this is based on Lowe’s

misleading argument that the managers at the Palestine store were not responsible for

categorizing these employees as being on personal leave without their knowledge in

order to trigger the personal leave policy and terminate them.

      In Kings Aire 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. As here, the amount of leave would have been unlimited had the

employee been treated as taking workers’ compensation-related leave. Finding that

record presented 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:

                                                                                    18
      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.

Id. The court affirmed the jury’s verdict in favor of the employee, finding it was

supported by sufficient evidence. Id.

      Contrary to Lowe’s arguments distinguishing Kings Aire, the facts here are far

more clear than those in Kings Aire. Here, in addition to evidence that the employer

switched the employee to a limited category of leave without the employees’

knowledge, the record also supports:

    Lowe’s deliberately worked these employees beyond their light duty
     restrictions to force them into taking leaves of absence;

    Lowe’s store manager, Gonzalez, stated that he did this in order to make
     injured employees “quit,” that he resented the effect these injured
     employees had on the store’s budget, and that he sought to make them
     “Lowe’s next customer”;

    Other managers engaged in a pattern of bullying, intimidation and
     threats when the employees attempted to protect themselves by
     protesting they were on physical work restrictions;

    After they had been worked against restrictions long enough that they
     could no longer perform their work, without the employees’ request or
     knowledge, Lowe’s categorized all four employees as taking “personal
     leave” instead of what should have been unlimited workers’
     compensation leave, thereby triggering a time clock they were unaware
     was ticking until after they received notice that their employment was
     terminated;



                                                                                 19
    Lowe’s followed almost none of the policy requirements for a
     termination that would have been accomplished through a “neutral”
     leave policy, including failure to document the start of the leave, failure
     to create a leave checklist, failure to notify the employees they were even
     on limited personal leave, and failure to issue warning letters prior to
     termination apprising these employees that they were about to exceed
     the maximum leave policy.

If anything, this case much more readily and obviously raises evidence of a valid

retaliation claim than the facts of Kings Aire.

       The facts of Echostar, which Lowe’s does not even attempt to distinguish (or

even mention in its brief) are even more similar to this case.   There, the employee,

Aguilar, was a satellite installer who suffered a work-related injury and made a

workers’ compensation claim.        He returned to work on “light duty” answering

phones, but within a few days his managers and others began “mocking his injury.”

Id., 394 S.W.3d at 283. The evidence included statements by Aguilar’s manager that

his workplace injury “created a negative financial impact” on the company, was

“costing money” and “disrupting” the installation department’s “quota system.” Id.

Aguilar was then threatened by his manager that if he could not do installation work,

he would be fired. Id. He was offered the choice of going on FMLA instead, which

he accepted because his manager would not allow him to continue on light duty. Id.

Three weeks after the conclusion of his FMLA leave period, Aguilar was terminated.

Id. at 284.

       Affirming the jury’s verdict for Aguilar, the court found there was sufficient

evidence that a retaliatory motive was a contributing cause of Aguilar’s termination –

                                                                                   20
applying the same legal sufficiency standards applicable to a directed verdict. Id. at 287

(citing City of Keller).   Relying on the Cont’l Coffee factors as the standard for

circumstantial evidence in such cases, the court concluded:

       In the instant case, several of the Cont’l Coffee Prods. Co. and Wyler 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. at 288. Although the court found no evidence of disparate treatment of non-

injured employees (the fourth factor), the court still concluded the Cont’l Coffee factors

were supported by enough evidence in the factors described above to support the

jury’s finding that a retaliatory motive was the cause of Aguilar’s termination. Id.

       The court also found that the employer’s failure to follow the FMLA leave

policy created a fact issue as to whether the enforcement of the leave policy was a

“neutral” explanation for the termination. Specifically, the court found that since the

employer had not followed the FMLA termination policy as to Aguilar himself, which

would have required his termination after 3 days of absence, there was sufficient

evidence that the policy was not uniformly enforced. Id. at 286-87.



                                                                                        21
      All of these facts – and more – are present in this case. The store-level

management in Palestine where these employees were mis-designated as taking

personal leave without their knowledge were well aware that all four employees had

made workers’ compensation claims and were on light duty restrictions under Lowe’s

workers’ compensation policy.        There is abundant evidence that Lowe’s store

management had a negative attitude toward the workers and their injuries, including

evidence of a deliberate plan by Gonzalez to move injured employees around to

different jobs to try to make them quit, threats of termination, intimidation and insults

and similar conduct far more severe than that detailed in Echostar. As in Echostar,

Lowe’s had a policy of providing light duty work to workers’ compensation claimants,

but refused to honor the light duty, threatening the employees with termination unless

they worked against their light duty restrictions.

      Finally, just like the employer in Echostar, there is evidence Lowe’s did not

uniformly apply or follow its personal leave policy. Thus, there was evidence that the

personal leave policy was not uniformly applied – and specifically not uniformly

applied as to these four employees, who were put on limited personal leaves of

absence without requesting it, without being notified of it, without it being

documented in their personnel records and without advance written warning that they

would be terminated for exceeding the maximum leave allowed under the policy.

      Even beyond the facts of Echostar, this case shows that workers’ compensation

claimants were treated differently than regular employees by moving them around to

                                                                                      22
make them quit and by placing them on personal leaves without their request or

knowledge. Moreover, in Echostar at least the employee, Aguilar, was aware he had

been placed on FMLA leave with a limited duration. Here, the evidence is that these

employees were completely unaware they had been categorized as taking limited

personal leave until after they were already terminated.

      Tellingly, Lowe’s brief does not even mention the Echostar case. The only

meaningful distinction that could be drawn between this case and Echostar is that the

evidence supporting the Cont’l Coffee factors and the deviations from the supposed

uniform policy is even more extensive here than it was in Echostar. By contrast, the

cases relied on by Lowe’s are easily distinguishable. In none of those cases - Texas

Division-Tranter, Inc. v. Carrozza, 876 S.W.2d 312 (Tex. 1994), Parker v. Valerus

Compression Servs., LP, 365 S.W.3d 61 (Tex. App. – Houston [1st Dist. 2011, pet.

denied) or Haggar Clothing Co. v. Hernandez, 164 S.W.3d 386 (Tex. 2005) – did the

evidence show that individuals were targeted because of their workers’ compensation

claims in order to be put on limited personal leaves without their knowledge as in this

case and Kings Aire. In none of those cases did the evidence show that the supposedly

neutral policy was not even followed. Rather, as in Echostar and Kings Aire, this case

involves evidence raising a genuine issue of fact establishing that the policy was not

uniformly applied, was not followed and was a false pretext to conceal a retaliatory

motive. Indeed, this case involves direct evidence of that retaliatory motive in the

form of statements by the store manager that he intended to move light duty

                                                                                    23
employees around the store in order to make them quit. As detailed extensively in the

discussion of the fact in Appellants’ principal brief (pp. 10-19), that is precisely was

Lowe’s management did to all four of these women.

       Because there was more than a scintilla of evidence to support most of the

Cont’l Coffee factors and evidence that the “personal leave” policy was not uniformly

applied or followed, there is factually and legally sufficient evidence that a retaliatory

motive was a contributing cause of the terminations of Brenda Brewer, Sabra Curry,

Deanna Meador and Penny Adams.

                                    CONCLUSION

       A reasonable jury could conclude both (1) that the making of workers’

compensation claims in good faith was a cause of the terminations of Brewer,

Meador, Adams and Curry, and (2) that Lowe’s stated alternative reason was false. It

was error to direct a verdict for Lowe’s. The judgment should be reversed and this

case should be remanded to the trial court for trial to a jury.



                                                 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


                                                                                       24
      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




                                   25
                            CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the foregoing document has been
forwarded on this 9th day of July, 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 5,341.




                                                 Brendan K. McBride




                                                                                         26
