

Opinion issued August 25, 2011.

In The
Court of
Appeals
For The
First District
of Texas
————————————
NO. 01-10-00916-CV
———————————
Donald Parker, Appellant
V.
Valerus
Compression Services, LP, Appellee

 

 
On Appeal from the 239th District Court 
Brazoria County, Texas

Trial Court Case No. 50354
 

 
O P I N I O N
          Donald
Parker sued his employer Valerus Compression Services, LP for wrongful
termination and retaliation based on his filing of a workers’ compensation
claim, among other grounds.  Valerus
denied Parker’s allegations and asserted that it terminated him in accordance
with its absentee policy after he spent eight months on medical leave.  Valerus filed traditional and no-evidence
motions for summary judgment asserting that Parker failed to meet his prima
facie burden to show a causal link between his workers’ compensation claim and
Valerus’s actions against him or, alternatively, that he failed to controvert
its neutral non-discriminatory reason for terminating him.  The trial court granted Valerus’s summary
judgment motions.  Parker contends on
appeal that the trial court erred in granting summary judgment because (1) he
presented sufficient evidence on all the elements of retaliation to satisfy a prima
facie case; (2) a fact issue exists on the causation element; (3) a fact issue
exists regarding the “cat’s paw” theory of discrimination in the decision to
terminate him; and (4) his damage claims are not barred as a matter of law.
          We
affirm.
Background
          Parker
worked as a pipe welder in a Valerus manufacturing facility.  On June 11, 2007 he injured his back while
lifting a barrel containing scrap iron and other industrial trash.  The next week, Parker went to Dr. James
Shook, an orthopedic surgeon, who recommended that he take over-the-counter
pain medications and apply hot and cold compresses to his back as needed.  Dr. Shook released Parker to return to work
without restrictions.  A second doctor
released Parker to return to work without restrictions two and a half weeks
after the accident.  
Parker returned to Dr. Shook almost
a month after the accident.  At this
time, Dr. Shook reiterated that Parker could return to work, but issued
restrictions against pushing, pulling, twisting, climbing stairs or ladders,
and any lifting or carrying.  In response
to Parker’s restrictions, Valerus assigned him the light duty tasks of only
welding “roll-outs,” which Parker described as the easiest part of a welder’s
job because it does not involve moving around or under the pipe.[1]  Parker filed a workers’ compensation claim.  
Parker saw Dr. Shook again two
months after the accident.  Dr. Shook
reiterated Parker’s previous restrictions with additional limitations that he
not work more than eight hours, that he not lift more than 10 pounds more than
six hours a day, and that he refrain from standing, sitting, kneeling,
squatting, walking, squeezing, wrist extension, and reaching.  Dr. Shook stated that Parker could return to
work in a sedentary capacity and could work on moving machinery or operate a
motor vehicle.  Dr. Shook also stated
that the restrictions should expire in September.  
          Other
employees complained that Parker was given all of the roll-out welding—work that was easier than other welding tasks
and, therefore, their jobs were correspondingly more difficult.  In response, Valerus assigned Parker to a
night-shift position operating a sub-arc welding machine in August, a position
that would involve minimal lifting, pulling, or movement under pipes.  Parker performed the job for two to three
days before informing his supervisor that he could not continue because of his
restrictions.  Parker met with his
supervisor and several other managers on August 20th to discuss his work
assignments.  He requested a position in
the safety office, but was told that was not possible because of personality
conflicts.  He was also told that he
could not continue to perform roll-outs exclusively, as no welder did only
roll-outs, and that he would need to accept the sub-arc machine position.[2]  Parker insisted that he could not perform this
work, left the meeting, was placed on medical leave, and never returned to work
at Valerus.  
          In
February 2008, over eight months after the accident, Dr. Shook issued another
report for Parker stating that he could return to work with the limitation that
he only work eight hours a day and refrain from squatting, kneeling, bending,
stooping, pushing, pulling, or lifting more than 50 pounds or lifting more than
25 pounds frequently.  Dr. Shook also
stated that Parker had a personal impairment rating of five percent.  
Jim Nicholson, the newly appointed
vice president of human resources for Valerus, began reviewing the status of employees
on extended leave in April 2008. 
Nicholson testified in his affidavit that his review took several months
and included eight injured employees, four with workers’ compensation claims
and four without workers’ compensation claims. 
Nicholson testified that Parker requested to be placed on medical leave
after trying the sub-arc position for several days.  Nicholson stated that he terminated Parker,
along with the other seven employees on extended medical leave, because the
reports from Parker’s doctor indicated that Parker could not perform the
essential functions of his job and Nicholson saw no evidence that Parker was
likely to return to work in the foreseeable future.  Valerus fired Parker on April 15, 2008,
approximately ten months after the accident and eight months after his last day
on the job.  Parker testified by
deposition that Valerus never informed him that he needed to return to work by
a specific time, that he had been fired, or that he was eligible for
reemployment.  Parker testified that he
later applied for reemployment, but was not given a position.  
          Parker
sued Valerus for workers’ compensation retaliation and discrimination and
retaliation on the basis of age and disability. 
See Tex. Lab. Code Ann. § 451.001 (West 2010) (workers’
compensation retaliation); Tex. Lab.
Code Ann. § 21.051 (West 2006) (age and disability discrimination); Tex. Lab. Code Ann.  § 21.055 (West 2006) (age and
disability retaliation).  Valerus filed a traditional and
no-evidence motion for summary judgment on all claims.  As summary judgment evidence, Valerus relied
on Dr. Shook’s reports indicating Parker’s work restrictions, Nicholson’s
affidavit, and the policies outlined in Valerus’s employee handbooks.  It also relied on Parker’s deposition
testimony.  
The trial court granted summary
judgment on all claims.  Parker appealed
the trial court’s judgment on his workers’ compensation retaliation claim under
Labor Code section 451.001.  He did not
appeal his remaining claims for age and disability discrimination and
retaliation.
Standard of Review
We review a trial court’s summary judgment de novo.  Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010).  If a trial court grants summary judgment
without specifying the grounds for granting the motion, we must uphold the
trial court’s judgment if any of the grounds are meritorious.  Beverick
v. Koch Power, Inc., 186 S.W.3d 145, 148 (Tex. App.—Houston [1st Dist.]
2005, pet. denied).  The motion must state the specific
grounds relied upon for summary judgment. 
See Tex. R. Civ. P. 166a(c), (i); Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009).  When
reviewing a summary judgment motion, we must (1) take as true all evidence
favorable to the nonmovant and (2) indulge every reasonable inference and
resolve any doubts in the nonmovant’s favor. 
Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life &
Accident Ins. Co. v. Knott,
128 S.W.3d 211, 215 (Tex. 2003).  
A party seeking summary judgment may combine in a single motion a request
for summary judgment under the no-evidence standard with a request under the
traditional summary judgment standard.  Binur v. Jacobo, 135 S.W.3d 646, 650
(Tex. 2004).  When a
party has filed both a traditional and no-evidence summary judgment motion and
the order does not specify which motion was granted, we typically first review
the propriety of the summary judgment under the no-evidence standard.  See Tex. R. Civ. P. 166a(i); see
Ford Motor Co. v. Ridgway,
135 S.W.3d 598, 600 (Tex. 2004).  If the
no-evidence summary judgment was properly granted, we need not reach arguments
under the traditional motion for summary judgment.  See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 576–77 (Tex. 2006).  
To prevail on a no-evidence motion for summary judgment, the
movant must establish that there is no evidence to support an essential element
of the nonmovant’s claim on which the nonmovant would have the burden of proof
at trial.  See Tex. R. Civ. P.
166a(i); Hahn v. Love, 321 S.W.3d
517, 523–24 (Tex. App.—Houston [1st Dist.] 2009, pet. denied).  The burden then shifts to the nonmovant to
present evidence raising a genuine issue of material fact as to each of the
elements specified in the motion.  Mack
Trucks, 206 S.W.3d at 582; Hahn, 321 S.W.3d at 524.
In a traditional summary judgment
motion, the movant has
the burden to show that no genuine issue of material fact exists and that the
trial court should grant judgment as a matter of law.  Tex.
R. Civ. P. 166a(c); KPMG Peat Marwick v. Harrison Cnty. Hous. Fin.
Corp., 988 S.W.2d 746, 748
(Tex. 1999).  A defendant moving for
traditional summary judgment must 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.   Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.
1997).  
Workers’ Compensation Retaliation
In his sole issue on appeal, Parker
contends the trial court erred in granting Valerus’s traditional and
no-evidence summary judgment motions.  He
asserts that summary judgment was improper because (1) he presented sufficient evidence
on all the elements of retaliation to satisfy a prima facie case; (2) a fact
issue exists on the causation element; (3) a fact issue exists regarding the
“cat’s paw” theory of discrimination in the decision to terminate him; and (4)
his damage claims are not barred as a matter of law.
A.      Retaliation
& Burden Shifting
          Labor
Code section 451.001 states that an employer may not discharge, or in any other
manner discriminate, against an employee because that employee has filed a
workers’ compensation claim in good faith. 
See Tex. Lab. Code Ann. § 451.001; Terry v. S. Floral Co., 927 S.W.2d 254, 256–57 (Tex. App.—Houston
[1st Dist.] 1996, no writ); Montgomery v.
Valerus Compression Servs., L.P., No. 01-10-00716-CV, 2011 WL 3240829, at
*3 (Tex. App.—Houston [1st Dist.] July 28, 2011, no pet. h.).  The purpose of the statute is to protect a
person entitled to workers’ compensation benefits from retaliation for
exercising their statutory rights.  See Terry, 927 S.W.2d at 256.  An employee who shows a violation of section
451.001 may recover “reasonable damages incurred by the employee as a result of
the violation.”  Tex. Lab. Code Ann. § 451.002 (West 2010).
Texas employs a burden shifting
analysis for workers compensation retaliatory discharge claims under section
451.001.  See, e.g., Benners v. Blanks Color Imaging, Inc., 133 S.W.3d 364, 369 (Tex. App.—Dallas
2004, no pet.).  As part of
its prima facie case, the employee “has the initial burden of demonstrating a
causal link between the discharge and the filing of the claim for workers’
compensation benefits.”  Terry, 927 S.W.2d at 257.  See
also Cont’l Coffee Prods. Co. v.
Cazarez, 937 S.W.2d 444, 450 (Tex. 1996) (applying standard of proof for
causation in whistleblower actions to anti-retaliation claims under workers’
compensation); Wal-Mart
Stores, Inc. v. Amos,
79 S.W.3d 178, 184 (Tex. App.—Texarkana 2002, no pet.) (stating that as “an
element of a prima facie case for retaliatory discharge” the employee
must “demonstrate the causal link between the discharge and the filing of the
claim”); Dallas Cnty. v. Holmes, 62 S.W.3d 326, 329 (Tex. App.—Dallas
2001, no pet.) (stating that plaintiff must “prove a prima facie case” by
establishing that “he, in good faith, filed a workers’ compensation claim, and
there exists a causal connection between the filing of the claim and the discharge
or other act of discrimination.”).  The
employee does not need to show that the workers’ compensation claim was the
sole reason for the employer’s conduct; it is sufficient to demonstrate that
but for the filing of the claim, “the employer’s action would not have occurred
when it did had the report not been made.” 
Cont’l Coffee, 937 S.W.2d at
450; Turner v. Precision Surgical, L.L.C.,
274 S.W.3d 245, 252 (Tex. App.—Houston [1st Dist.] 2008, no pet.).  In other words, the filing of the workers
compensation claim must be a reason for the employer’s adverse employment
action, but not necessarily the reason.   

An employee may 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).  Circumstantial evidence of the causal link
includes:
(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; (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,
133 S.W.3d at 369.  Little or no lapse in time between the plaintiff’s compensation
claim and the employer’s adverse employment action is also circumstantial
evidence of a retaliatory motive.  Johnson v. City of Houston, 203 S.W.3d
7, 11 (Tex. App.—Houston [14th Dist.] 2006, pet. denied). 
See also Green v. Lowe’s Home Ctr.,Inc., 199 S.W.3d
514, 519 (Tex. App.—Houston [1st Dist.] 2006, pet. denied) (stating that temporal proximity between assertion of a protected right and
termination may be evidence of a causal connection).  This evidence is relevant for determining whether a causal
link exists, both in examining whether the employee established a prima facie
case and the ultimate issue of whether the employee proved a retaliatory motive
for the adverse employment action. See
generally Hertz Equip. Rental Corp. v. Barousse, No. 01-10-00949-CV, 2011 WL
3207793, at *4–7 (Tex. App.—Houston [1st Dist.] July 28, 2011, no pet. h.)
(reviewing circumstantial evidence identified in Cont’l Coffee to determine whether evidence was legally and
factually sufficient to support finding of retaliatory discharge); Green, 199 S.W.3d at 518–523  (reviewing circumstantial evidence identified
in Cont’l Coffee to determine whether
plaintiff established fact issue in response to summary judgment motion). 
          Once
the employee establishes a prima facie claim, including a causal link, the
burden shifts to the employer to rebut the alleged discrimination by offering
proof of a legitimate, non-discriminatory reason for its actions.  Green,
199 S.W.3d at 519; Benners, 133
S.W.3d at 369.
If the employer demonstrates a legitimate, non-discriminatory reason,
then the burden shifts back to the employee “to produce controverting evidence
of a retaliatory motive” in order to survive a motion for summary
judgment.  Green, 199 S.W.3d at 519.  See also Tex.
Div.-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 314 (Tex. 1994) (employee
must controvert employer’s neutral explanation of employment decision based on
direct or circumstantial evidence).  The
employee must present evidence that the employer’s asserted reason for the
discharge or other adverse employment action was pretextual or “challenge the
employer’s summary judgment evidence as failing to prove as a matter of law
that the reason given was a legitimate, nondiscriminatory reason.”  Benners, 133 S.W.3d at 369.  Summary judgment is proper if the employee fails to
produce controverting evidence.  Terry, 927 S.W.2d at 257 (affirming summary judgment for
employer because employee failed to produce evidence of retaliatory motive to
rebut employer’s neutral reason for firing her); Benners, 133 S.W.3d at 369, 372 (holding summary judgment proper
because employee failed to raise a fact issue on retaliatory motive); Castor v. Laredo Cmty. Coll., 963 S.W.2d
783, 785­–86 (Tex. App.—San Antonio 1998, no pet.) (holding employee failed to
raise fact issue on retaliatory motive despite indulging all inferences in his
favor).
B.       Treatment
in Comparison to Similarly Situated Employees
          Parker
maintains that he raised a fact issue on causation sufficient to show a causal
link and to negate Valerus’s non-discriminatory reason for his termination, the
uniform application of its absentee policy. 
Valerus disputes that Parker presented sufficient evidence to establish
the causal link necessary to establish his prima facie case, and further
contends that Parker’s evidence fails to controvert its neutral reason.  We will assume without deciding that Parker
presented sufficient evidence to satisfy his prima facie burden and turn to his
evidence to negate Valerus’s non-discriminatory reason.  
          While
courts generally examine the six pieces of circumstantial evidence listed above
to determine if a fact issue exists on the causal link, the focus is narrower
in workers’ compensation retaliation claims arising from enforcement of leave
policies.  When
an employer provides proof that it terminates an employee pursuant to a
uniformly applied leave of absence policy, a terminated employee must provide
competent evidence that the employer treated him differently from similarly
situated employees in order to survive a summary judgment motion.  See Haggar Clothing Co. v. Hernandez, 164 S.W.3d 386, 388–89 (Tex. 2005)
(per curiam); Larsen v. Santa Fe Indep. Sch. Dist., 296 S.W.3d 118, 131
(Tex. App.—Houston [14th Dist.] 2009, pet. denied). “If an
employee’s termination is required by the uniform enforcement of a reasonable
absentee policy, then it cannot be the case that termination would not have
occurred when it did but for the employee’s assertion of a compensation claim .
. . .”  Cont’l Coffee, 937 S.W.2d at 451. 
See also Cavender v. Houston
Distrib. Co., 176 S.W.3d 71, 72–73 (Tex. App.—Houston [1st Dist.] 2004,
pet. denied); Alonso v. Stanley Works,
Inc., 111 S.W.3d 850, 852 (Tex. App.—Dallas 2003, no pet.).  Summary judgment on a workers’ compensation
retaliation claim is proper if the employee’s absence from work exceeded the
employer’s leave policy and the employer enforced the policy uniformly.  See Cont’l
Coffee, 937 S.W.2d at 451; Montgomery,
2011 WL 3240829, at *4 (citing cases stating summary judgment properly granted
when employee unable to controvert evidence of employer’s uniform application
of leave of absence policy).  In none of
these cases did the courts review the other pieces of circumstantial evidence
to determine whether a fact issue existed. 

          Valerus
presented evidence of its leave of absence policy through its employee
handbooks and the Nicholson’s affidavit. 
Both indicate that Valerus may terminate an employee on extended leave
if the employee remains absent more than three months.  Nicholson testified in his affidavit that he
began reviewing all employees on extended leave shortly after his appointment
of as vice-president of human resources. 
His review resulted in the firing of eight employees on leave, including
Parker.  Four of those employees filed
workers’ compensation claims but four did not. 
He also identified 12 employees who had filed workers’ compensation
claims and then returned to work.    
Parker identifies two employees who
he claims were similarly situated but treated differently by Valerus.  “Employees are similarly situated if their circumstances are
comparable in all material respects, including similar standards,
supervisors, and conduct.”  Ysleta
Indep. Sch. Dist. v. Monarrez, 177 S.W.3d 915, 917 (Tex. 2005).  Parker testified in his deposition
that two installers in their early-twenties were injured on the job, placed on
light duty, and assigned tasks that Parker described as “piddly stuff.”  He could not provide any more detail as to
the names or light duty assignments of these employees, but he described their
injuries as “on the job” and “recordable incidents.”  Nothing in the record indicates whether these
employees filed workers’ compensation claims. 
Parker also does not describe their job duties sufficiently to show that
they performed similar tasks to his before their injuries.  The record also does not indicate the
duration or extent of their light duty assignments.  
Parker has not identified “a single
Valerus employee on extended leave of absence who had not filed a workers’
compensation claim but had been retained by Valerus.”  Parker’s conclusory statements about the treatment of other employees
are insufficient to raise a fact issue.  See Larsen,
296 S.W.3d at 131.  Therefore,
he has not presented any evidence of a similarly situated employee to rebut
Valerus’s non-discriminatory reason for his termination.[3]  See
Cavender, 176 S.W.3d at 73.
Conclusion
We hold Parker did not raise a fact issue on whether he was discharged
for making a workers’ compensation claim. 
Therefore, the trial court properly granted summary judgment on his
workers’ compensation retaliation claim. 
Because we find summary judgment to be proper on one ground raised by
Valerus in its summary judgment motion, we need not address Parker’s remaining
arguments regarding the cat’s paw theory of liability or damages.  See Montgomery,
2011 WL 3240829, at *7; Beverick,
186 S.W.3d at 148.  We affirm the
judgment of the trial court.  
 
 
 
 
Harvey Brown
                                                                   Justice

 
Panel consists of Chief Justice
Radack and Justices Sharp and Brown.




[1]
          Parker testified that roll-outs
are “small pieces of pipe that you stand right there and you roll them
out.  You don’t have to bend.  You don’t have to squat.  You don’t have to do anything but roll them
out.  They don’t weigh more than 25, 30
pounds, max.” 


[2]           Parker agreed in his deposition that
no employee performed roll-outs full-time. 


[3]           We also note that Parker denied in his
deposition testimony that he was terminated or discriminated against because of
his workers’ compensation claim.  He
instead focused on his age discrimination claim.  In the deposition, Valerus asked Parker,
“[O]ne of the claims that you have in this lawsuit is that Valerus treated you
badly for filing a workers’ compensation claim. 
Do you agree?”  Parker responded,
“I never said they treated me badly for drawing a workman’s comp claim because
they never discussed it with me.  So I
disagree.”  He also testified that he did
not notice a negative attitude or that he had been treated differently after
his injury.  Again, he focused on his age
discrimination claim.  Throughout his
deposition, Parker stated that younger employees were treated differently and
that the only time anyone at Valerus had been rude or made jokes about him was
to call him an “old man.”  This evidence
further supports the trial court’s decision to grant summary judgment on his
workers’ compensation retaliation claim. 



