     Case: 19-20670      Document: 00515383058         Page: 1    Date Filed: 04/15/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                           FILED
                                                                        April 15, 2020
                                    No. 19-20670                       Lyle W. Cayce
                                  Summary Calendar                          Clerk


JANE MILLIGAN, individually and as Representative of the Estate of Fritz
Pierre Poux, Sr.,

               Plaintiff - Appellant

v.

HOME DEPOT USA, INCORPORATED,

               Defendant - Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:17-CV-449


Before WIENER, HAYNES, and COSTA, Circuit Judges.
PER CURIAM:*
       Jane Milligan appeals the district court’s grant of summary judgment
for Home Depot U.S.A., Inc. on her common-law negligence claim. For the
reasons below, we AFFIRM.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                      No. 19-20670
                                 I.    Background
      Fritz Poux worked as a Home Depot employee and had a history of
heart health issues. In 2015, while working at Home Depot’s store in Porter,
Texas, Poux submitted a medical accommodations request form completed by
his doctor to Home Depot. His doctor noted that due to Poux’s heart issues,
Poux should not “work outside in heat” and should “not be required to lift,
push or pull over 20 lbs.” His doctor also specifically recommended that Poux
not work as a lumber department supervisor, Poux’s position at the time.
Poux thereafter worked as a sales associate.
      In 2016, Poux suffered a cardiac event. His doctor again noted that it
would be in Poux’s “best interest” to do work that did “not require heavy
lifting over 30 lbs or exposure to extreme heat.” Poux returned to work about
two months after his cardiac event. When he returned, he was transferred to
Home Depot’s store in Humble, Texas, and put to work in the lumber
department as a sales associate. Two weeks into working at the Humble
location, Poux suffered a stroke. He was found in the back part of the store,
“[n]ot too far” from two wood saws. According to an employee accident claim
worksheet completed after the event, Poux was “cutting lumber” at the time
of the incident. Due to complications from the stroke, Poux died in 2018.
      Poux’s wife, Milligan, sued Home Depot in Texas state court, raising a
claim of negligence under the non-subscriber portion of the Texas Worker’s
Compensation Act. Home Depot timely removed the case to federal district
court on diversity grounds.1 Home Depot then moved for summary judgment,



      1   We have not yet addressed whether 28 U.S.C. § 1445(c), which precludes removal
of claims arising under the worker’s compensation laws of any state, applies when a
plaintiff sues a non-subscriber under the Texas Worker’s Compensation Act. See Gomez v.
O’Reilly Auto. Stores, Inc., 283 F. Supp. 3d 569, 572 (W.D. Tex. 2017). We do not address
this issue here. Improper removal under § 1445(c) is a procedural defect that requires the
non-removing party to move for remand within thirty days. Williams v. AC Spark Plugs
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                                       No. 19-20670
arguing that it owed no duty to accommodate Poux’s medical restrictions,
that it did not breach any duty owed to Poux, and that its alleged failure to
accommodate Poux’s restrictions was not the proximate cause of Poux’s
injuries.   The district court granted Home Depot’s motion for summary
judgment, holding that Milligan failed to meet her burden of showing that
Home Depot had a duty to accommodate Poux’s health restrictions or raising
a material fact dispute that Home Depot breached its duty to provide a
reasonably safe work environment. Milligan timely appealed.
                          II.    Standard of Review
      We review a district court’s grant of summary judgment de novo and
apply the same standard as the district court. Howell v. Town of Ball, 827
F.3d 515, 521 (5th Cir. 2016). In so doing, “[w]e view all facts and evidence in
the light most favorable to the non-moving party.” Ferraro v. Liberty Mut.
Fire Ins. Co., 796 F.3d 529, 531 (5th Cir. 2015). Summary judgment is proper
when “there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). “We may
affirm for reasons other than those relied upon by the district court.” LLEH,
Inc. v. Wichita Cty., 289 F.3d 358, 364 (5th Cir. 2002) (brackets omitted).
                                III.    Discussion
      Because Home Depot is a worker’s compensation non-subscriber,
Milligan must establish negligence by Home Depot to recover.                Werner v.
Colwell, 909 S.W.2d 866, 868 (Tex. 1995). To establish negligence, a plaintiff
must prove that (1) the defendant had a legal duty, (2) the defendant
breached that duty, and (3) damages proximately resulted from that breach.
Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006) (per curiam).


Div. of Gen. Motors Corp., 985 F.2d 783, 786 (5th Cir. 1993). Milligan did not move to
remand and therefore waived that right. We thus have jurisdiction regardless of whether
removal was appropriate.
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                                     No. 19-20670
      Milligan argues that “Home Depot had a duty to exercise ordinary care
and abide by Poux’s prior health care accommodations which it had been
aware of.” Texas law does impose a duty on employers to “use ordinary care
in providing a safe workplace.” Elwood, 197 S.W.3d at 794. But Home Depot
argues that this duty does not require employers to accommodate employees’
work restrictions. See generally Austin v. Kroger Tex., L.P., 465 S.W.3d 193,
213 (Tex. 2015) (holding that, despite rules limiting an employer’s use of
defenses based upon employee conduct, an employer owes no duty to an
employee who was aware of the dangers associated with their job duties).
      Assuming arguendo that the duty to provide a safe workplace requires
employers to accommodate employees’ health requirements,2 we hold that
Milligan failed to raise a material fact dispute as to whether Home Depot
failed to accommodate Poux’s work restrictions. Milligan argues that Home
Depot did not adhere to Poux’s work restrictions because it put Poux to work
in the lumber department, which she contends is Home Depot’s most
physically strenuous department. While the lumber department does require
some strenuous work, Milligan provided no evidence suggesting that Poux
was required to do such work. The lumber department supervisor testified
that the strenuous aspects of the job are lifting bags of concrete and loading
wood into the back of customers’ trucks.             But Poux was indoors cutting
lumber with a wood saw at the time of his stroke.3 Milligan provided no
evidence that cutting lumber with a wood saw contradicted Poux’s doctor’s
recommendation that Poux do no work that required using more than twenty
to thirty pounds of force.

      2 We do not decide whether an employer’s duty to provide a reasonably safe
workplace requires an employer to accommodate an employee’s medical restrictions.
      3  While there is some dispute as to what exactly Poux was doing at the time of his
stroke, we view the “facts and evidence in the light most favorable to” Milligan. Ferraro,
796 F.3d at 531.
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                                No. 19-20670
      Even if cutting lumber with a wood saw was outside of Poux’s work
restriction, he did not request assistance.    Poux’s coworker testified that
employees have communication devices that they can use to call for help and
that Poux did not use his device for help the day of the incident. An employer
is not liable for injury that “results from the actions of [an] employee who
voluntarily proceeds to do the work without assistance.” Adams v. Reynolds
Tile & Flooring, Inc., 120 S.W.3d 417, 421 (Tex. App.⎯Houston [14th Dist.]
2003, no pet.).
      Milligan also suggests that Poux’s doctor requested that he no longer
work in the lumber department.        However, no evidence supports that
suggestion. The doctor only recommended that Poux no longer work as a
supervisor in the lumber department, and Poux was working as a sales
associate, not a supervisor. Thus, there is no evidence that Home Depot
failed to accommodate Poux’s work restrictions.
      Lastly, Milligan claims that Home Depot’s refusal to adhere to Poux’s
work restrictions is evident from the employee accident claim worksheet,
which noted that “job restrictions” could prevent a reoccurrence of Poux’s
accident. But the worksheet did not identify what types of job restrictions
could prevent a reoccurrence, nor did it state that Poux’s work restrictions
were not being followed. The record does not provide any evidence that Poux
was working outside of his doctor’s restrictions. Thus, even if Home Depot
had a duty to accommodate Poux’s work restrictions, Poux failed to raise a
fact issue supporting the claim that Home Depot breached that duty.
AFFIRMED.




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