                                  COURT OF APPEALS
                               EIGHTH DISTRICT OF TEXAS
                                    EL PASO, TEXAS


 AMANDA ARMENDARIZ,                            §
                                                               No. 08-11-00010-CV
                            Appellant,         §
                                                                 Appeal from the
 v.                                            §
                                                            County Court at Law No. 5
                                               §
 REDCATS USA, L.P.,                                          of El Paso County, Texas
                                               §
                            Appellee.                            (TC#2009-3470)
                                                §


                                         OPINION

       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


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
                                                        2
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


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
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.


                                                  4
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.


                                                 5
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.


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.
                                                         6
         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


                                                 7
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


                                                 8
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

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.
                                                          9
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


                                                10
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


                                                  11
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).


                                                12
       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.




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