Opinion filed April 2, 2020




                                    In The


        Eleventh Court of Appeals
                                 __________

                              No. 11-18-00111-CV
                                  __________

                   GARRETT MARTIN, Appellant
                              V.
               FASKEN OIL AND RANCH LTD., Appellee

                 On Appeal from the County Court at Law No. 2
                            Midland County, Texas
                       Trial Court Cause No. CC18845


                      MEMORANDUM OPINION
       This is an appeal from a summary judgment granted in favor of Appellee,
Fasken Oil and Ranch Ltd., in a suit in which Appellant, Garrett Martin, sought to
recover damages for retaliatory discharge under the Texas Workers’ Compensation
Act. See TEX. LAB. CODE ANN. § 451.001 (West 2015). In a single issue, Appellant
argues that the trial court erred when it granted Appellee’s motion for summary
judgment. We affirm.
                                 Background Facts
      In September 2014, Appellant began working for Appellee. As of January
2015, Appellant was working in the pipe yard, which required him to inspect pipes
used for oil production and load them onto storage racks, which were stacked as high
as seven feet or more. By nature of his job position, Appellant was at times required
to help load pipes as large as seventeen inches in diameter and thirty-five feet in
length, which can weigh up to 700 pounds.
      In March 2015, Appellant suffered a non-work-related injury to his knee while
weightlifting. Accordingly, Appellant was placed on leave of absence until he
returned to work in July. Upon his return, Appellant was placed on light duty work
with restrictions from his doctor that prohibited him from climbing or lifting, which
gradually reduced as his injury healed. On Appellant’s first day back at work,
Tommy Taylor, Appellee’s Director of Oil and Gas Development, further instructed
Appellant to comply with the restrictions from his doctor and to refrain from
climbing and lifting.
      On Tuesday, September 15, 2015, Appellant injured his back while he and
two other men were loading pipe onto a forklift. According to Appellant and several
of Appellee’s employees, the forklift operator motioned at Appellant and the two
other men with three fingers, signaling for all three men to lift the pipe onto the
forklift. Nevertheless, Appellant proceeded to lift the pipe by himself over express
objections by his coworkers warning him that he could injure his back by lifting the
pipe alone. Appellant then proceeded to finish his shift without pain but was unable
to get out of bed the next morning.




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      On September 17, Appellant informed Taylor that he had injured his back
while moving a pipe, and Taylor asked Vince Hancock, Appellee’s safety
coordinator, to start an investigation into the cause of Appellant’s injury. Through
Hancock’s investigation, Taylor learned that Appellant had moved the pipe by
himself despite his medical restrictions and the admonitions of his coworkers.
Importantly, Appellant’s e-mail to Taylor, notifying him of the injury, omitted the
fact that Appellant had lifted the pipe by himself—a decision he later admitted was
unsafe.
      After injuring his back, Appellant did not return to work until Monday,
September 21, 2015. When he arrived at work on the 21st, he was instructed to go
meet with Hancock and Jimmy Carlile concerning his injury.            According to
Appellant, both Hancock and Carlile instructed Appellant that they could not tell
him how to handle his injury. Carlile, however, also allegedly told Appellant about
an employee who had injured his hand at work and took care of the medical expenses
himself because he knew he caused his own injury. Appellant took Carlile’s
comments to mean, “[b]asically, do not have a worker’s comp claim.” Later that
afternoon, Appellant decided he wanted to file a workers’ compensation claim,
which Appellee then reported to its insurance carrier.
      The next day, Appellant was observed climbing on top of pipe racks despite
having been told to stay on the ground by more than one individual. On Wednesday,
September 23, 2015, Taylor informed Appellant that he was being terminated in light
of his “unsafe work practices, his inability to follow instructions and his
untruthfulness and lack of candor regarding the details of the incident that occurred
on September 15, 2015.”




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      Appellant filed the current cause of action on July 19, 2016, alleging that
Appellee terminated him for filing a workers’ compensation claim. Appellee later
filed a combined no-evidence and traditional motion for summary judgment, which
the trial court granted. This appeal followed.
                                      Analysis
      On appeal, Appellant argues that the trial court erred when it granted
Appellee’s motion for summary judgment.          We review a summary judgment
de novo. Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 481 (Tex. 2015). In our
review, we take as true all evidence favorable to the nonmovant, indulge every
reasonable inference in favor of the nonmovant, and resolve any doubts in the
nonmovant’s favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.
2005).
      In this case, Appellee asserted both no-evidence and traditional grounds in its
motion for summary judgment. When parties move for summary judgment on both
no-evidence and traditional grounds, we first consider the no-evidence grounds.
Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). If the nonmovant
fails to overcome the no-evidence motion, there is no need to address the challenges
to the traditional motion. Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex.
2013). Accordingly, we first review claims under the no-evidence standard, and any
claims that survive the no-evidence review will then be reviewed under the
traditional standard.
      To defeat a no-evidence motion, the nonmovant must produce evidence
raising a genuine issue of material fact as to the challenged elements. See Ridgway,
135 S.W.3d at 600. A genuine issue of material fact exists if the evidence “rises to
a level that would enable reasonable and fair-minded people to differ in their
conclusions.” Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.


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1997) (quoting Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995)).
The evidence does not create an issue of material fact if it is “so weak as to do no
more than create a mere surmise or suspicion” that the fact exists. Kia Motors
Corp. v. Ruiz, 432 S.W.3d 865, 875 (Tex. 2014) (quoting Ridgway, 135 S.W.3d at
601).
        In this case, Appellee’s no-evidence motion for summary judgment alleged
that Appellant had not established a causal connection between his termination and
the filing of his workers’ compensation claim. The motion additionally alleged that
Appellant had no evidence to rebut Appellee’s evidence that the decision to
terminate Appellant was non-retaliatory.
        Section 451.001 of the Texas Labor Code provides that a person may not
discharge or in any other manner discriminate against an employee because the
employee has (1) filed a workers’ compensation claim in good faith, (2) hired a
lawyer to represent the employee in a claim, (3) instituted or caused to be instituted
in good faith a workers’ compensation proceeding, or (4) testified or is about to
testify in a workers’ compensation proceeding. LAB. § 451.001. An employer that
violates this statute is subject to a retaliation claim—an exception to the traditional
“employment at will” doctrine. Kingsaire, Inc. v. Melendez, 477 S.W.3d 309, 312
(Tex. 2015) (quoting Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 453
(Tex. 1996)).
        To succeed on a retaliation claim, an individual must show that the
termination would not have occurred when it did apart from the filing of the
employee’s workers’ compensation claim. Id. (citing Cont’l Coffee, 937 S.W.2d at
450); Echostar Satellite L.L.C. v. Aguilar, 394 S.W.3d 276, 286 (Tex. App.—El Paso
2012, pet. denied). An employee generally may—and oftentimes must—rely on




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circumstantial evidence to prove causation. Kingsaire, 477 S.W.3d at 312. Such
circumstantial evidence may include:
      (1) knowledge of the compensation claim by those making the decision
      on termination; (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, 937 S.W.2d at 451. Additionally, the temporal proximity of the
termination to the date of the injury or claim may also be considered as
circumstantial evidence of a retaliatory firing. Echostar Satellite, 394 S.W.3d at
288. While no one factor is determinative and a plaintiff need not produce evidence
on every factor, there must be “sufficient circumstantial evidence on a majority of
these factors.” Armendariz v. Redcats USA, L.P., 390 S.W.3d 463, 469 (Tex. App.—
El Paso 2012, no pet.).
      If the employee is able to establish a causal link between the termination and
the filing of a workers’ compensation claim, the burden shifts to the employer to
provide evidence of a non-retaliatory reason for the termination. Terry v. S. Floral
Co., 927 S.W.2d 254, 257 (Tex. App.—Houston [1st Dist.] 1996, no pet.). If the
employer is able to provide such evidence, the burden shifts back to the employee
to produce controverting evidence. Tex. Div.–Tranter, Inc. v. Carrozza, 876 S.W.2d
312, 314 (Tex. 1994). If the employee fails to produce additional evidence rebutting
an employer’s evidence of a non-retaliatory termination, the employer is entitled to
summary judgment. Id.
      In this case, Appellant’s claim rests entirely on the fact that he was fired two
days after he filed his workers’ compensation claim and on his subjective
interpretation of comments made by Carlile. Temporal proximity alone, however,



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is insufficient to create an issue of fact, and Appellant’s assertion that Carlile did not
want him to file a workers’ compensation claim is no more than a conclusion and is
not competent summary judgment evidence. See id.; Willis v. Nucor Corp., 282
S.W.3d 536, 546 (Tex. App.—Waco 2008, no pet.).
      Other than the temporal proximity and the statements of Carlile, Appellant
himself acknowledged during his deposition that he could not produce sufficient
circumstantial evidence on a majority of the Continental Coffee factors:
            Q. Do you have any personal knowledge as to who made the
      decision to end your employment with Fasken?
             A. No, sir.
            Q. Do you have any personal knowledge as to who participated
      in making the decision to end your employment?
             A. No, sir.
           Q. Do you have any personal knowledge of what information
      was provided to the person making the decision to end your
      employment at Fasken?
             A. No, sir.
           Q. Do you have any personal knowledge of what information
      was relied on by the person making the decision to end your
      employment at Fasken?
             A. No, sir.
           Q. Can you identify any policies or procedures at Fasken that the
      company didn’t comply with in separating your employment?
             A. No, sir.
            Q. Did anybody ever express a negative attitude towards your
      injury?
             A. No, sir.




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               Q. Can you identify any facts for me that cause you to believe
        that the reason Fasken has provided in this lawsuit as to why it separated
        your employment is false, untrue?
                A. Facts?
              Q. Let me rephrase it for you. Can you identify any facts that
        cause you to believe that the reason Fasken has given for its decision to
        separate your employment in this lawsuit is false?
                [APPELLANT’S COUNSEL]: Objection; form.
                A. No, I can’t give you any facts.
               Q. Can you identify any other employee who did not follow the
        instructions of Tommy Taylor, and who never had a workers’
        compensation claim at work who wasn’t terminated?
                A. No, sir.
Because Appellant failed to produce any summary judgment evidence that would
call into question Appellee’s non-retaliatory explanation, the trial court did not err
in granting Appellee’s motion for summary judgment. See Carrozza, 876 S.W.2d
at 314; Willis, 282 S.W.3d at 555. Accordingly, we overrule Appellant’s sole issue.
                                         This Court’s Ruling
        We affirm the judgment of the trial court.


                                                                   KEITH STRETCHER
                                                                   JUSTICE
April 2, 2020
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.1
Willson, J., not participating.

        1
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.



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