Affirmed and Memorandum Opinion filed March 17, 2005.
In The
Fourteenth Court of Appeals
____________
NO. 14-04-00257-CV
____________
LOUIS CALZADA, JR., Appellant
V.
NAMASCO CORPORATION, Appellee
On Appeal from the 149th District Court
Brazoria County, Texas
Trial Court Cause No. 22566*RM02
M E M O R A N D U M O P I N I O N
Appellant Louis Calzada, Jr. appeals from the trial court’s grant of summary judgment in favor of his former employer, appellee Namasco Corporation. Calzada claims that there are fact issues regarding whether Namasco terminated his employment in retaliation for filing a workers’ compensation claim. We affirm.
Factual and Procedural Background
The undisputed summary judgment evidence establishes the following. Namasco hired Calzada on August 9, 2001 as a warehouseman on the second shift. On November 19, 2001, Calzada suffered an on-the-job injury, and Namasco filed a workers’ compensation claim on Calzada’s behalf. Calzada was released to work modified job duties on December 19, 2001, and Namasco transferred Calzada to the first shift to allow him to perform light duty work. Calzada was released to work full duty without restrictions on October 31, 2002, and he was to return to his regular position on the second shift. Namasco discharged Calzada shortly thereafter, on November 4, 2002. The reason for the discharge is the basis of this lawsuit.
According to Namasco, during 2002, Namasco implemented “Project Focus,” a corporate-wide initiative to reduce operating expenses and increase overall return on capital. This was to be done through a variety of measures, including increasing sales, increasing prices, better inventory management, and minimizing the number of employees and overtime hours worked. Also, the Houston Branch Manager, Mike Regitz, received indications at the end of the third quarter and beginning of the fourth quarter of 2002 that business at the Houston facility would soon take a sharp downturn. Because of Project Focus and the indications of a business downturn, Regitz closely examined how to reduce expenses and operate more efficiently.
When Calzada was released to return to full duty on October 31, 2002, Regitz and Calzada’s supervisor, Curtis Anderson, were studying the second shift ,which was Calzada’s shift, to determine whether to reduce the number of employees. They decided that current business conditions, along with the cost-cutting mandate of Project Focus and the projected business downturn at the Houston facility, justified layoffs. Anderson and Regitz decided to eliminate Calzada’s position because he had the least seniority of any employee on the second shift and because they determined that his position was not essential to the operation of the shift. Eleven more warehouse employees, constituting approximately fifty percent of the Houston warehouse workforce, left the workforce over the next five months. Six of these employees left voluntarily and were not replaced, and five were discharged. Of the discharged employees, Calzada is the only employee to have filed a workers’ compensation claim.
Calzada filed this lawsuit, claiming that he was discharged in retaliation for filing a workers’ compensation claim, which is prohibited by section 451.001 of the Labor Code. See Tex. Lab. Code Ann. § 451.001(1) (Vernon 1996). Namasco moved for summary judgment, asserting that Calzada cannot establish either a causal relationship between filing a workers’ compensation claim and his discharge or a retaliatory motive on the part of Namasco.[1] The trial court granted summary judgment, and Calzada claims in one issue that this was error because there are fact issues precluding summary judgment.
Standard of Review
Namasco filed both a traditional motion for summary judgment and a no‑evidence motion. See Tex. R. Civ. P. 166a(c), (i). Where, as here, the summary judgment does not specify or state the grounds relied on, it will be affirmed on appeal if any of the grounds presented in the motion are meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989).
The standard of review for a traditional motion for summary judgment is whether the successful movant at the trial level carried its burden of showing that there is no genuine issue of material fact and that judgment should be granted as a matter of law. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). A defendant 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). Under this traditional standard, this court must take as true all evidence favorable to the nonmovant and must make all reasonable inferences in the nonmovant’s favor. See id.
We review a no‑evidence summary judgment de novo by construing the record in the light most favorable to the nonmovant and disregarding all contrary evidence and inferences. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). A no‑evidence summary judgment is improperly granted when the respondent brings forth more than a scintilla of probative evidence that raises a genuine issue of material fact. See Tex. R. Civ. P. 166a(i); Coastal Conduit & Ditching, Inc. v. Noram Energy Corp., 29 S.W.3d 282, 284 (Tex. App.— Houston [14th Dist.] 2000, no pet.). Less than a scintilla of evidence exists when the evidence is “so weak as to do no more than create a mere surmise or suspicion” of a fact and the legal effect is that there is no evidence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983).
Analysis
Section 451.001 of the Labor Code prohibits terminating an employee for filing a workers’ compensation claim in good faith. Tex. Lab. Code Ann. § 451.001(1). The employee has the burden of demonstrating a causal connection between the discharge and his workers’ compensation claim. Benners v. Blanks Color Imaging, Inc., 133 S.W.3d 364, 369 (Tex. App.—Dallas 2004, no pet.); Garcia v. Levi Strauss & Co., 85 S.W.3d 362, 367–68 (Tex. App.—El Paso 2002, no pet.); see also Tex. Lab. Code Ann. § 451.002(c) (Vernon 1996) (“The burden of proof in a proceeding under this section is on the employee.”). The employee need not show that filing a workers’ compensation claim was the sole reason for his discharge. Rather, he must demonstrate that but for filing the claim, the discharge would not have occurred when it did. Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450–51 & n.3 (Tex. 1996); Lee v. Haynes & Boone, L.L.P., 129 S.W.3d 192, 196 (Tex. App.—Dallas 2004, pet. denied); Stevens v. Nat’l Educ. Ctrs., Inc., 990 S.W.2d 374, 380 (Tex. App.—Houston [14th Dist.] 1999), pet. denied, 11 S.W.3d 185 (Tex. 2000).
An employee can establish a causal connection between termination and filing a workers’ compensation claim by direct or circumstantial evidence. Cont’l Coffee, 937 S.W.2d at 451; Benners, 133 S.W.3d at 369. Circumstantial evidence sufficient to establish this causal link may include: (1) knowledge of the compensation claim by those making the termination decision, (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 (quoting lower court opinion); Benners, 133 S.W.3d at 369; see also City of Fort Worth v. Zimlich, 29 S.W.3d 62, 69 (Tex. 2000) (applying this analysis in a claim for retaliation under the Whistleblower Act). Calzada contends he has created a fact issue as to causation by presenting evidence in four of these areas. We examine each in turn.
Knowledge of the Claim: It is undisputed that Anderson and Regitz, the decision makers in this case, were aware that Calzada filed a workers’ compensation claim. However, mere knowledge of the claim does not establish a causal link but is one factor to be considered in light of the remaining evidence. See Lone Star Steel Co. v. Hatten, 104 S.W.3d 323, 327–28 (Tex. App.—Texarkana 2003, no pet.); Vallance v. Irving C.A.R.E.S., Inc., 14 S.W.3d 833, 837 (Tex. App.—Dallas 2000, no pet.).
Negative Attitude: Calzada presented affidavit testimony that a Namasco manager named John Duran repeatedly told him that he “wasn’t hurt that bad.” To be probative of retaliation, negative remarks must have been made by an individual “with authority over the employment decision at issue.” Wal-Mart Stores, Inc. v. Amos, 79 S.W.3d 178, 187 (Tex. App.—Texarkana 2002, no pet.); accord McIntyre v. Lockheed Corp., 970 S.W.2d 695, 698 (Tex. App.—Fort Worth 1998, no pet.) (noting that employee failed to show that negative comments were made by person with “any control whatsoever over [his] fate”); cf. Winters v. Chubb & Son, Inc., 132 S.W.3d 568, 577–78 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (applying same standard in race discrimination context). Namasco’s evidence establishes that Regitz and Anderson, in consultation with human resources, were the sole decision makers in discharging Calzada, and Calzada presented no evidence that Duran played any role whatsoever in the decision. Thus, any negative comments by Duran are no evidence of a causal link between the workers’ compensation claim and Calzada being discharged.
Similarly Situated Employees: Calzada appears to argue that he is similarly situated to the other warehouse employees who were discharged and that he was treated differently because he was discharged first and they were discharged sometime over the next five months. Even assuming that being discharged a few months later than another employee can be considered favorable treatment, Calzada failed to demonstrate that he was similarly situated to those employees. For employees to be similarly situated, their circumstances must be “nearly identical” in all relevant respects. See Winters, 132 S.W.3d at 578; Wyvill v. United Cos. Life Ins. Co., 212 F.3d 296, 304–05 (5th Cir. 2000). Anderson and Regitz chose to eliminate Calzada’s position because he had the least seniority on his shift and because they determined his position was not essential. Calzada presented no evidence regarding relevant circumstances of these other employees, such as their seniority, what shift they worked, or even what jobs they held, much less the importance of their positions. As such, Calzada cannot establish a causal connection based on a comparison to similarly situated employees. See Lee, 129 S.W.3d at 197 (finding insufficient evidence to establish causal connection based on treatment of similarly situated employees when employee “failed to provide any specific information” regarding the alleged comparators); Vallance, 14 S.W.3d at 838 (noting that employee failed to present evidence about comparative importance of alleged similarly situated employee’s job).
Falsity of Reason: Calzada contends that since the other employees discharged as part of Project Focus were not discharged until sometime in the five months after he was, a fact issue exists as to whether he was discharged as part of this layoff.[2] Evidence that the layoffs happened over a few months does not, standing alone, raise a fact issue that Namasco’s reasons for discharging Calzada were false. The undisputed evidence shows that (1) the Project Focus assessment of potential downsizing and other cost-saving measures was ongoing months before Calzada’s termination, (2) at the time he was terminated, the decision makers were focused on evaluating his shift, (3) Calzada had the least seniority of anyone on his shift, and (4) the decision makers determined that Calzada’s position was not essential. Calzada presented no evidence to dispute any of this. Calzada also asserts that Namasco hired another employee, Juan Rodriguez, after he was discharged,[3] which creates a fact issue as to whether Namasco had an economic need to discharge him. We disagree. Namasco’s summary judgment evidence established that Rodriguez was hired as a supervisor. Had Calzada presented evidence that the position Rodriguez was hired for was unnecessary or that Rodriguez replaced Calzada or assumed some of his job duties, that could be probative of retaliation. See Aust v. Conroe Indep. Sch. Dist., __ S.W.3d __, No. 09-04-063 CV, 2004 WL 2964631, at *4 (Tex. App.—Beaumont Dec. 16, 2004, no pet. h.). But the bare allegation that Namasco hired a supervisor at or near the time of Calzada’s termination does not create a fact issue regarding the economic necessity of eliminating Calzada’s position. See Benners, 133 S.W.3d at 371 (discounting employee’s evidence that employer hired new employees during a reduction in force because the new employees performed duties for which the employee was not qualified).
We conclude that Calzada has not met his burden of establishing a causal connection between his filing a workers’ compensation claim and Namasco terminating his employment. Therefore, summary judgment was proper on this basis alone, and we need not determine whether there is fact issue as to Namasco’s retaliatory motive. We overrule Calzada’s issue and affirm the trial court’s judgment.
/s/ Leslie Brock Yates
Justice
Judgment rendered and Memorandum Opinion filed March 17, 2005.
Panel consists of Justices Yates, Anderson, and Hudson.
[1] Calzada included in his petition a claim for punitive damages. Namasco also argued in its summary judgment motion that Calzada’s punitive damages claim should be dismissed because he cannot establish the existence of actual malice, which is necessary to recover punitive damages in an action for retaliation under section 451.001 of the Labor Code. See Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 454 (Tex. 1996). Calzada has not challenged this portion of the summary judgment on appeal.
[2] Calzada also attacks Namasco’s evidence regarding the need for and details of Project Focus because that information is established only from the affidavits of Curtis and Regitz, who are interested witnesses and therefore unreliable. This is an objection to form that must be made to the trial court. Calzada did not make this or any other objection to Namasco’s summary judgment evidence to the trial court, and therefore it is waived. See Choctaw Props., L.L.C. v. Aledo I.S.D., 127 S.W.3d 235, 241 (Tex. App.—Waco 2003, no pet.); Ahumada v. Dow Chem. Co., 992 S.W.2d 555, 562 (Tex. App.—Houston [14th Dist.] 1999, pet. denied). Calzada also asserts that the affidavits offer only bald, conclusory statements and should have been supported with documentary evidence such as financial statements. This objection may be made for the first time on appeal. See Choctaw Props., 127 S.W.3d at 241–42. However, Calzada fails to specify exactly which statements he contends are conclusory and to explain why the factual detail in the affidavits is insufficient. See Stewart v. Sanmina Tex. L.P., __ S.W.3d __, No. 05-03-01688-CV, 2005 WL 341592, at *5 (Tex. App.—Dallas Feb. 14, 2005, no pet. h.). Further, we have reviewed the affidavits and have determined that they contain sufficient factual support and are therefore not conclusory. See Choctaw Props., 127 S.W.3d at 242; Rizkallah v. Conner, 952 S.W.2d 580, 587 (Tex. App.—Houston [1st Dist.] 1997, no writ). Thus, we consider Namasco’s affidavit evidence regarding Project Focus in analyzing Calzada’s claim.
[3] Namasco presented summary judgment evidence that Rodriguez was actually hired before Calzada was discharged and objected that Calzada’s affidavit demonstrated no basis for his personal knowledge of when Rodriguez was hired. Neither the summary judgment order nor any other part of the record indicates that the trial court ruled on this objection; thus, the contested evidence remains part of the summary judgment record. See Wright v. Greenberg, 2 S.W.3d 666, 676 (Tex. App.—Houston [14th Dist.] 1999, pet. denied); see also Aust v. Conroe Indep. Sch. Dist., __ S.W.3d __, No. 09-04-063 CV, 2004 WL 2964631, at *2 (Tex. App.—Beaumont Dec. 16, 2004, no pet. h.) (noting that a Mother Hubbard clause in the final judgment does not overrule objections). However, this factual dispute about exactly when Rodriguez was hired is not material and does not affect our analysis.