IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-11480
Summary Calendar
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SANFORD L. MARSHALL,
Plaintiff-Appellant,
VERSUS
AT&T INCORPORATED,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
(3:94-CV-858-H)
_________________________
June 5, 1997
Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Sanford L. Marshall appeals a summary judgment on his common
law battery and retaliatory discharge claims against AT&T, Inc.
(“AT&T”). Finding no error, we affirm.
I.
*
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should not be published and is not precedent except under the limited circumstances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.
Marshall was employed by AT&T’s Calibration Laboratory as a
technician from 1977 until his discharge in March 1993. Beginning
in early fall 1992 and continuing until his discharge, Marshall
smelled an odor emanating from the laboratory, which odor he
characterized as “the smell of a dead dog.” Although Marshall
remained the sole laboratory member who could detect the smell,
AT&T conducted an analysis of the air-filtration system to no
avail. After Marshall continued to complain, AT&T hired an
independent firm to conduct an air-quality assessment in the
laboratory; again, the assessment revealed that the air quality was
“within accepted government and regulatory guidelines.”
In November 1992, Marshall discerned that the source of the
odor was the perfume worn by a co-worker, Retha Hansen. After
Hansen refused to refrain from wearing the perfume, Marshall began
making comments in her presence about the perfume’s foul smell,
including making faces when he walked past her, saying “phew” and
waving his hand in front of his face as he walked by, making jokes
about her perfume, and wearing a full-face respirator mask when
Hansen would enter the lab.
Marshall was reprimanded by his supervisors both because his
actions were upsetting to Hansen and because they were affecting
negatively his ability to interact with others in the laboratory
and thus perform his job. Various co-workers also reported to
their supervisors that his behavior with respect to Hansen was
2
disrupting the work being performed in the laboratory.
On February 25, 1993, Marshall filed a workers’ compensation
claim seeking remuneration for the adverse health consequences
attendant to his breathing the “dead dog” perfume. On March 11,
1993, Marshall was suspended pending further investigation of his
“disruption of the workforce and continued harassment of [Hansen].”
One month later, Marshall was informed that, effective March 11, he
was discharged for his disruption of the workforce and harassment
of Hansen, as well as for his history of other incidences of
harassment and disruptions. Marshall filed in November 1993 a
claim with the EEOC, alleging that AT&T’s failure to accommodate
his smell disability and its tacit acceptance of other co-workers’
harassment of Marshall constituted discrimination under the
Americans with Disabilities Act (“ADA”).
After receiving a right-to-sue letter from the EEOC, Marshall
filed the instant action alleging various state law torts and two
counts of impermissible retaliatory discharge. The district court
granted summary judgment on all claims.
II.
We review a grant of summary judgment de novo. See Hanks v.
Transcontinental Gas Pipe Line Corp., 953 F.2d 996, 997 (5th Cir.
1992). Summary judgment is appropriate “if the pleadings,
depositions, answers to interrogatories, and admissions on file,
3
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” FED. R. CIV. P. 56(c).
A.
Marshall alleges first that the district court erred in
granting summary judgment on his state law battery claim.
According to Marshall, the chemicals contained in the perfume to
which he has an apparent sensitivity “offensively touched” his
person, thereby stating a claim for battery.
In Texas, a battery is “'the least touching of another person
willfully and in anger, by use of any part of the body of the party
committing the offense.'” Price v. Short, 931 S.W.2d 677, 687
(Tex. App.SSDallas 1996, no writ). Battery requires an offensive
touching only, not an intent to injure. See id. (citing Fisher v.
Carrousel Motor Hotel, Inc., 424 S.W.2d 627, 629-30 (Tex. 1967)).
Marshall has not brought to our attention, nor are we aware
of, any controlling cases that support his theory that the
“offensive touching” of his person by chemical particles emanating
from the perfume of another supports a claim for battery.1 Were we
1
AT&T points us to Leichtman v. WLW Jacor Communications, Inc., 634 N.E.2d
697, 699 (Ohio Ct. App. 1994), as an example of a case that has recognized
tobacco smoke as “particulate matter” that has the physical properties capable
of making contact and thus giving rise to a battery. We reserve comment on the
similarities or differences between tobacco smoke and perfume odors, save to note
that the Leichtman court’s treatment of tobacco smoke as “particulate matter” is
statutory in origin. See id.
4
to adopt Marshall’s suggestion, we would be creating a new cause of
action akin to a person-based nuisance theorySSi.e., that the
perfume vapors interfered unreasonably with Marshall’s possessory
interests in his own person. See, e.g., Watson v. Brazos Elec.
Power Coop., 918 S.W.2d 639, 644-45 (Tex. App.SSWaco 1996, writ
denied) (defining the tort of traditional land-based nuisance under
Texas law). We decline to do so.
B.
Marshall next contends that the district court erred in
failing to conclude that he was terminated in violation of
§ 451.001 of the TEX. LABOR CODE (formerly TEX. REV. CIV. STAT. ANN.
art. 8307c (Vernon Supp. 1992)). According to Marshall, he was
fired in retaliation for filing a workers’ compensation claim.
Section 451.001, a statutory exception to Texas’s employment-
at-will doctrine, prohibits an employer from discriminating against
or discharging an employee because he has filed a claim, hired a
lawyer to represent him in a claim, instituted or caused to be
instituted in good faith any proceeding under the Texas Workers’
Compensation Act, or testified or is about to testify in any such
proceeding. See Burfield v. Brown, Moore & Flint, Inc., 51 F.3d
583, 589 (5th Cir. 1995). An employee claiming retaliatory
discharge has the burden of demonstrating that his protected
conduct was such that, without it, the employer’s prohibited
5
conduct would not have occurred when it did. See Continental
Coffee Prods. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996). Thus,
an employer does not discriminate against an employee for filing a
workers’ compensation claim unless the employer’s action would not
have occurred when it did had the claim not been filed. See id.
The employee bears the initial burden of demonstrating the
causal link between the protected activity and his discharge. See
Swearingen v. Owens-Corning Fiberglass Corp., 968 F.2d 559, 562
(5th Cir. 1992). Circumstantial evidence sufficient to establish
a causal link includes (1) knowledge on the part of those making
the termination decision of the claim’s having been filed;
(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 others similarly
situated; and (5) evidence that the proffered reason for the
discharge was false. See Continental, 937 S.W.2d at 451. Once the
employee establishes this causal link, the employer must rebut the
showing of alleged discrimination by proffering a legitimate, non-
discriminatory reason for the discharge. See Swearingen, 968 F.2d
at 562. Where an employer proffers a legitimate, non-
discriminatory reason, and the employee fails to produce any
additional evidence of retaliatory motive, summary judgment is
appropriate. See Texas Division-Tranter, Inc., v. Carrozza,
876 S.W.2d 312, 313 (Tex. 1994).
6
Marshall’s summary judgment evidence supporting his contention
that his filing a workers’ compensation claim was a determining
factor in his discharge is weak at best. First, he asserts that
the temporal nature of his dischargeSSfifteen days after the filing
of his claimSSevinces retaliation. That a discharge post-dates the
filing of a claim by a certain number of days is not sufficient on
its own to demonstrate a retaliatory motive. See, e.g., Worsham
Steel Co. v. Arias, 831 S.W.2d 81, 82 (Tex. App.SSEl Paso 1992, no
writ) (reviewing the temporal nature of the discharge in the light
of other direct evidence supporting the employee’s retaliatory
discharge claim); Chemical Express Carriers, Inc., v. Pina, 819
S.W.2d 585, 590 (Tex. App.SSEl Paso 1991, writ denied) (same).
Second, even assuming arguendo that Marshall has demonstrated
adequately that the AT&T decisionmakers had knowledge of his having
filed a claim at the time they made the discharge decision (which
evidence AT&T attacks as conclusionary), this factor alone does not
establish an employee’s prima facie case of discrimination. See
Hogue v. Blue Bell Creameries, L.P., 922 S.W.2d 566, 571 n.5 (Tex.
App.SSTexarkana 1996, writ denied).
Finally, Marshall contends that his supervisors’ negative
attitude toward his apparent sensitivity to Hansen’s perfume evince
the requisite connection between his filing a claim and his
discharge. The allegedly incriminating evidence to which Marshall
points includes (1) that he was told by his supervisors not to wear
7
during work an “unsightly” charcoal respirator to filter out the
perfume, but rather to wear a less obtrusive white surgical mask
that AT&T had provided free of charge; (2) that he was instructed
to refrain from complaining to and harassing Hansen regarding her
perfume; (3) that he was “harassed” by other non-supervisory co-
workers who told him that he was upsetting Hansen and that doing so
was unproductive; and (4) that AT&T failed to take additional
actions to accommodate him, including conducting a third air study
in the laboratory, instructing Hansen not to wear her perfume, and
transferring him to another shift (after having already done so
once at his request).2
This evidence demonstrates AT&T’s negative attitude not toward
Marshall’s injured condition, but rather toward the effects of his
condition on his and others’ abilities to perform their jobs
satisfactorily. Marshall was terminated because he had a history
of poor work performance (noted in his evaluations as early as
1984), because he continued to harass Hansen after having been
counseled to stop, and because he was affecting worker morale in
the laboratory. In fact, at a meeting of technicians held on
March 5 (just six days before Marshall’s suspension and
termination), which meeting he refused to attend because of the
2
Marshall makes much of a March 11, 1993, memo in which Betsy Harrod, a
public relations manager, recommends his termination. We disagree with Marshall
that the memo evinces AT&T’s “negative attitude” toward his sensory condition.
To the contrary, it demonstrates that it is the consequences of his
conditionSSi.e., his continued harassment of Hansen and his ill-effect on the
rest of the group’s work productSSthat made his termination necessary.
8
smell, his co-workers reiterated to their supervisor that his
harassment of Hansen and complaints about the smell were disrupting
the work being done in the laboratory and that “they were tired of
having to work with [Marshall] causing so much confusion/trouble.”
Whether Marshall disbelieves AT&T’s proffered reason for his
discharge, AT&T has put forth a legitimate, non-discriminatory
reason that not only is not contradicted by Marshall’s “negative
attitude” evidence but is in fact consistent with it. Marshall’s
“subjective beliefs [to the contrary] are no more than conclusions
and do not raise a fact issue precluding summary judgment in a
retaliatory discharge action under the Workers’ Compensation Law.”
See Continental, 937 S.W.2d at 452 (citation omitted).
C.
Marshall complains that the district court erred in granting
summary judgment on his claim of retaliatory discharge under the
ADA. The factual basis supporting Marshall’s ADA claim is
identical to that underlying his § 451.001 claim above.
To establish a prima facie case of impermissible retaliation,
a plaintiff must prove (1) that he is engaged in an activity
protected under title VII; (2) that an adverse employment action
occurred; and (3) that there is a causal connection between his
participation in the protected activity and the adverse employment
decision. See Equal Employment Opportunity Comm’n v. J.M. Huber
9
Corp., 927 F.2d 1322, 1326 (5th Cir. 1991). Once the prima facie
case is established, the burden shifts to the employer to produce
some legitimate, non-discriminatory reason for the adverse
employment action. See Ray v. Tandem Computers, Inc., 63 F.3d 429,
435 (5th Cir. 1995). If the employer is so successful, the burden
shifts to the plaintiff to prove that the employer’s reasons are
pretextual and that “but for” his participation in the protected
activities, he would not have been subject to the adverse action.
See id.
Because Marshall relies upon the same evidence of retaliation
in support of this claim as he does for the § 451.001 claim above,
we need not repeat our analysis.3 Even assuming arguendo that
Marshall has satisfied his burden of presenting a prima facie case
of retaliatory discharge, AT&T has carried its burden of proffering
a legitimate, non-discriminatory reason for his discharge.
Marshall has failed to put forth any additional evidence to satisfy
his burden of proving that AT&T’s proffered reasons are pretextual
and that, “but for” his filing of a claim with the EEOC, his employ
3
In fact, because Marshall must demonstrate, under title VII, that “but
for” his engaging in a protected activity he would not have been terminated, see
Ray, 63 F.3d at 435, whereas under § 451.001 he need only demonstrate that his
filing a workers’ compensation claim was a “determining factor” only, see
Swearingen, 968 F.2d at 562, Marshall’s inability to prove his § 451.001 claim
based upon identical facts forecloses any possibility of recovery under
title VII.
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with AT&T would not have been terminated.4
AFFIRMED.
4
To the extent that Marshall relies upon the temporal nature of his
termination and his supervisors’ awareness of his smell disability to evince a
causal connection between his termination and his engaging in a protected
activity, we note that such evidence is sufficient to carry his burden to produce
a prima facie case only. See Payne v. McLemore’s Wholesale & Retail Stores,
654 F.2d 1130, 1141 n.13 (5th Cir. Unit A Sept. 1981). Once AT&T proffers its
legitimate, non-discriminatory reason for his discharge, he must then present
additional evidence to demonstrate pretext.
11