Rogelio Salas v. Fluor Daniel Services Corporation

Affirmed in Part and Reversed and Remanded in Part and Majority Opinion
filed December 29, 2020.

In The

Fourteenth Court of Appeals

NO. 14-18-01103-CV

ROGELIO SALAS, Appellant

V.

FLUOR DANIEL SERVICES CORPORATION, Appellee

On Appeal from the 281st District Court
Harris County, Texas
Trial Court Cause No. 2017-31173

MAJORITY OPINION

Rogelio Salas appeals the trial court’s grant of no-evidence and traditional
summary judgment in favor of Fluor Daniel Services Corporation (“Fluor”),
contending in five issues that the trial court erroneously granted summary
judgment on his workers’ compensation retaliatory discharge claim under Texas
Labor Code section 451.001(1) and (3). We affirm in part and reverse and remand
in part.
 BACKGROUND

Salas started working for Fluor in 2015 as a pipefitter at the Chevron Phillips
Chemical Company’s (“CP Chem”) USGC Ethylene construction project. Salas
understood the temporary nature of the project and that Fluor had a reduction of
force policy as the project progressed. Salas also understood that Fluor employees
were provided “workers’ compensation insurance coverage from Property/Casualty
Insurance Company of Hartford through CP Chem’s Owner Controlled Insurance
Program (“OCIP”) to protect [Fluor employees] in the event of work-related
injury.”

On January 9, 2017, while walking to a safety meeting, Salas “stepped on
uneven ground causing his left knee to twist and he fell against a pipe support.”
Salas contacted his foreman and supervisor, Oliver Alanis, about the incident.
Alanis in turn notified Fluor’s safety department and took Salas to the safety
office. The Health, Safety, Environment Department (“HSE”) Supervisor Michael
Fish took Salas to the doctor. According to the Incident Report of January 9, 2017,
Salas “was taken to medical. While at medical[,] he was evaluated, determined to
have no injuries, and no treatment was given.” Salas was released to return to
work. Two days later, Salas again complained of pain after attempting to climb
stairs and was taken to a doctor to be evaluated. The doctor gave him ibuprofen
and released Salas back to work. Salas continued to complain of knee pain and
was assigned to the safety office. He reported to the safety office every day and
“sat there all day” until he was terminated; he did not perform any work during this
time. The Daily First-Aid Records of January 12-13, 2017 state that Salas had left
knee pain and was given ice therapy and ibuprofen. The January 16, 2017 Daily
First-Aid Record states that Salas still had knee pain.

On January 16, 2017, Fish emailed the “Employers First Report of Injury or

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Illness” relating to Salas’s January 9, 2017 injury to CP Chem employees and a
Fluor HSE supervisor. CP Chem sent the same injury report to its insurance
administrator. On January 19, 2017, a claims analyst for CP Chem’s third-party
insurance administrator was assigned to Salas’s workers’ compensation claim and
requested additional information from Fluor about whether Salas had returned to
work and what compensation he was receiving. The next day, Fluor responded,
stating that “Salas has returned back to work at full duty. He is receiving full
wages and hours as before the injury. . . . He is hourly. We do not owe him any
partial benefits. The incident is not a lost time[.] He received treatment at Bayside
Urgent Care.”

Later that day, Fluor placed Salas on its reduction of force list. The list
contained Salas’s name and work position; it stated the date he was chosen for the
reduction of force as January 20, 2017 and time as 2:30 p.m.; it stated the effective
date as January 23, 2017. The list contained three signature rubrics. The first
rubric, “Reviewed by: Human Resources Representative”, was blank. The second
rubric, “Reviewed by: Superintendent/Designee”, was signed by Chris Bennett
(Fluor’s senior construction manager) and by Richard Aycock (Fluor’s general
superintendent who reported to Chris Bennett) on January 20, 2017. The third
rubric, “Reviewed by: Site Manager/Designee”, was blank. According to
Aycock’s deposition testimony, he would be informed by management that a
reduction of force was necessary and that the supervisors in charge of a crew were
expected to decide which employee would be subject to the reduction. He testified
that crew supervisors are trusted to decide which employee is subject to reduction
based on company-established factors. Aycock testified that the supervisor “passes
the name of the individual” and Aycock reviews and approves the reduction
without evaluating the supervisor’s decision. Aycock claimed that Salas’s

3
immediate supervisor Alanis made the decision to lay off Salas.

On January 23, 2017, Alanis notified Salas that he was being terminated.
Senior Human Resources Specialist Adrian Stockton conducted an exit interview
with Salas that same day, and Salas signed an Employee Separation Form, which
stated Salas was being terminated because of a reduction of force. The only other
person who signed the separation form was Stockton. While the project manager’s
signature was required for approval, only “N/A” appears on the form.

On January 26, 2017, Salas hired an attorney, who filed a workers’
compensation claim that same day for Salas’s January 9, 2017 injury. Salas filed
suit in May 2017, alleging a workers’ compensation retaliatory discharge claim
under Texas Labor Code section 451.001 and requesting actual and punitive
damages.

Fluor filed a traditional and no-evidence motion for summary judgment on
Salas’s claim. Fluor argued it is entitled to summary judgment because (1) “there
is no evidence of a causal connection between Salas’ workers’ compensation claim
and his termination”; (2) “there is no evidence that the layoffs at the project were a
mere pretext for retaliation”; and (3) there is no evidence to support an exemplary
damages award for Fluor’s alleged retaliatory discharge. Fluor also argued it was
“independently entitled to summary judgment because Salas was not physically
able to perform the essential functions of his job at the time of his termination.”
Salas filed a summary judgment response, and Fluor filed a reply thereto.

The trial court held an oral hearing on Fluor’s summary judgment motion on
September 28, 2018. After the hearing, Salas filed a “Post-Hearing Brief in
Response to [Fluor]’s Motion for Summary Judgment”, in which he argued that he
“met the standard for a protected act based on Labor Code § 451.001(3)” because
he instituted or caused to be instituted a proceeding under the workers’
4
compensation statute. Salas argued that Fluor “evade[d] the holding” of applicable
caselaw that supported his argument and erroneously argued inapplicable caselaw
to support its summary judgment motion. Fluor filed a response to Salas’s brief,
objecting to the brief as late-filed and asserting that Salas’s cited caselaw in
support of his claim under section 451.001(3) is no longer applicable.

The trial court signed an order granting Fluor’s summary judgment motion
and dismissing Salas’s claim with prejudice on September 28, 2018. Salas filed a
motion for new trial, to which Fluor responded. The motion was overruled by
operation of law, and Salas filed a timely notice of appeal.

ANALYSIS

On appeal, Salas challenges the trial court’s grant of summary judgment in
favor of Fluor on his workers’ compensation retaliatory discharge claim raising
five issues. We address each issue in turn.

I. Standard of Review

Where, as here, the trial court’s summary judgment does not state the
grounds for its ruling, we affirm the judgment if any of the grounds advanced is
meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989); see also Muller v.
Stewart Title Guar. Co., 525 S.W.3d 859, 868 (Tex. App.—Houston [14th Dist.]
2017, no pet.). We review a summary judgment de novo. Lujan v. Navistar, Inc.,
555 S.W.3d 79, 84 (Tex. 2018). A party seeking summary judgment may combine
a request for summary judgment under the no-evidence standard with a request
under the traditional summary judgment standard in a single motion. Binur v.
Jacobo, 135 S.W.3d 646, 651 (Tex. 2004); Cardenas v. Bilfinger TEPSCO, Inc.,
527 S.W.3d 391, 398 (Tex. App.—Houston [1st Dist.] 2017, no pet.).

In a no-evidence motion for summary judgment, the movant asserts that

5
there is no evidence of one or more essential elements of the claims for which the
nonmovant bears the burden of proof at trial. See Tex. R. Civ. P. 166a(i); Timpte
Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009); Drake Interiors, Inc. v.
Thomas, 544 S.W.3d 449, 453 (Tex. App.—Houston [14th Dist.] 2018, no pet.).
The trial court must grant the motion unless the nonmovant produces summary
judgment evidence raising a genuine issue of material fact. Tex. R. Civ. P. 166a(i).
The nonmovant is “not required to marshal its proof; its response need only point
out evidence that raises a fact issue on the challenged elements.” Hamilton v.
Wilson, 249 S.W.3d 425, 426 (Tex. 2008) (per curiam) (internal quotation
omitted). A fact issue exists if the nonmovant brings forth evidence that would
enable reasonable and fair-minded jurors to differ in their conclusions. See City of
Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005).

For a traditional summary judgment motion, the movant must demonstrate
that no genuine issues of material fact exist and that the movant is entitled to
judgment as a matter of law. Tex. R. Civ. P. 166a(c); M.D. Anderson Hosp. &
Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000) (per curiam). To be entitled
to traditional summary judgment, a movant must conclusively negate at least one
essential element of each of the nonmovant’s causes of action or conclusively
establish each element of an affirmative defense. Am. Tobacco Co., Inc. v.
Grinnell, 951 S.W.2d 420, 425 (Tex. 1997). “Evidence is conclusive only if
reasonable people could not differ in their conclusions.” City of Keller, 168
S.W.3d at 816. If the movant produces sufficient evidence to establish the right to
summary judgment, the burden shifts to the nonmovant to come forward with
competent controverting evidence raising a genuine issue of material fact. Centeq
Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995); Swoboda v. Ocwen Loan
Servicing, LLC, 579 S.W.3d 628, 632 (Tex. App.—Houston [14th Dist.] 2019, no

6
pet.).

Here, Fluor sought summary judgment on traditional and no-evidence
grounds “and while the burdens vary for the different types of motions, both
parties presented summary judgment evidence.” See Scripps NP Operating, LLC
v. Carter, 573 S.W.3d 781, 790 (Tex. 2019). Thus, the “‘differing burdens are
immaterial and the ultimate issue is whether a fact issue exists.’” Id. (quoting
Neely v. Wilson, 418 S.W.3d 52, 59 (Tex. 2013)). A fact issue exists if there is
more than a scintilla of probative evidence. Neely, 418 S.W.3d at 59. More than a
scintilla of evidence exists when reasonable and fair-minded people could differ in
their conclusions based on the evidence. Remaley v. TA Operating LLC, 561
S.W.3d 675, 678-79 (Tex. App.—Houston [14th Dist.] 2018, pet. denied); see also
Dallas Morning News, Inc. v. Tatum, 554 S.W.3d 614, 625 (Tex. 2018); King
Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). We review the
evidence in the light most favorable to the nonmovant and indulge every
reasonable inference and resolve any doubts against the motion. Scripps NP
Operating, LLC, 573 S.W.3d at 790; City of Keller, 168 S.W.3d at 824.

II. Retaliatory Discharge

A. Applicable Law

Chapter 451 of the Texas Labor Code, also known as the Anti-Retaliation
Law, creates a cause of action against a person who discharges or in any other
manner discriminates 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
proceeding under the Texas Workers’ Compensation Act; or (4) testified or is
about to testify in a proceeding under the Texas Workers’ Compensation Act. Tex.
Labor Code Ann. § 451.001; Travis Cent. Appraisal Dist. v. Norman, 342 S.W.3d
7
54, 55 (Tex. 2011). The Legislature’s purpose in enacting section 451.001 was to
protect persons entitled to benefits under the Workers’ Compensation Act from
being discharged for exercising their statutory rights and seeking to collect those
benefits. In re Poly-Am., L.P., 262 S.W.3d 337, 350 (Tex. 2008) (orig.
proceeding); Parker v. Valerus Compression Servs., LP, 365 S.W.3d 61, 66 (Tex.
App.—Houston [1st Dist.] 2011, pet. denied).

“An employer who violates this statute is subject to a retaliation claim,
which constitutes ‘an exception to the traditional doctrine of employment at will
found in Texas law.’” 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) (citation and internal quotation marks omitted)). To prove a retaliatory
discharge claim, the employee must show that the employer’s prohibited action
would not have occurred when it did had the employee’s protected conduct not
occurred. Haggar Clothing Co. v. Hernandez, 164 S.W.3d 386, 388 (Tex. 2005)
(per curiam); see also Melendez, 477 S.W.3d at 312.

Under Texas’s burden-shifting analysis for workers’ compensation
retaliatory discharge claims under section 451.001, the employee as part of his
prima facie case must first establish a causal link between his termination and the
employee’s protected conduct under section 451.001. See Datar v. Nat’l Oilwell
Varco, L.P., 518 S.W.3d 467, 478-79 (Tex. App.—Houston [1st Dist.] 2017, pet.
denied); Parker, 365 S.W.3d at 66; English v. Dillard Dep’t Stores, Inc., No. 14-
04-00197-CV, 2005 WL 2875006, at *2 (Tex. App.—Houston [14th Dist.] Nov. 3,
2005, no pet.) (mem. op.). The employee does not have to prove that his
participation in the protected conduct was the sole cause of his discharge. Simon v.
Pentair Valves & Controls US LP, No. 14-16-00822-CV, 2018 WL 1542437, at *2
(Tex. App.—Houston [14th Dist.] Mar. 29, 2018, no pet.) (mem. op.); Cardenas,

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527 S.W.3d at 399; see also Cont’l Coffee Prods. Co., 937 S.W.2d at 450.

“Circumstantial evidence, and the reasonable inferences from such evidence,
can prove the causal connection.” Cont’l Coffee Prods. Co., 937 S.W.2d at 450.
Circumstantial evidence sufficient to establish a causal link between the
employee’s termination and his protected conduct includes: (1) knowledge of the
employee’s protected conduct 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. See Melendez, 477 S.W.3d at 312; Cont’l Coffee
Prods. Co., 937 S.W.2d at 451; Simon, 2018 WL 1542437, at *3. Close timing
between the employee’s protected activity and the adverse employment action is
also relevant circumstantial evidence of a causal link and of retaliatory motive.
See Cardenas, 527 S.W.3d at 399; Johnson v. City of Houston, 203 S.W.3d 7, 11
(Tex. App.—Houston [14th Dist.] 2006, pet. denied).

Once the employee establishes a causal link, the burden shifts to the
employer to “rebut the alleged discrimination by showing there was a legitimate
reason behind the discharge.” Cont’l Coffee Prods. Co., 937 S.W.2d at 451;
Simon, 2018 WL 1542437, at *3; see also Cardenas, 527 S.W.3d at 399. If the
employer demonstrates a legitimate, non-discriminatory reason, the burden shifts
back to the employee to produce controverting evidence of a retaliatory motive to
survive a motion for summary judgment. Parker, 365 S.W.3d at 67; see also
Datar, 518 S.W.3d at 479. “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,

9
nondiscriminatory reason.’” Parker, 365 S.W.3d at 67-68; see also Johnson, 203
S.W.3d at 12.

B. Protected Conduct

With these principles and standards in mind, we turn to Salas’s first issue in
which he contends the trial court erroneously granted summary judgment in favor
of Fluor because “he engaged in a protected activity” under section 451.001(1) and
(3).

1. Section 451.001(1)

We begin by determining whether Salas engaged in protected conduct under
section 451.001(1).

Section 451.001(1) states that an employer is prohibited from terminating
an employee “because the employee has filed a workers’ compensation claim in
good faith”, thus requiring the employee to file a claim. See Tex. Lab. Code Ann.
§ 451.001(1) (emphasis added). Section 451.001(1) does not state that an
employer is prohibited from terminating its employee because (1) another
company notified its insurer of the employee’s injury and (2) the insurer assigned a
workers’ compensation claim number for a potential future workers’ compensation
claim. Section 451.001(1) therefore provides no support for Salas’s assertion that
he engaged in protected conduct because CP Chem informed its insurer about
Salas’s injury and the “workers’ compensation insurer assigned a workers’
compensation claim number and contacted Fluor” about Salas’s injury.

We further note that during oral argument, Salas stated the case before us is
“a section 451.001(3) case” and is not really a “section 451.001(1) case” because
he did not file a workers’ compensation claim as required by section 451.001(1).

Contrary to Salas’s assertion, we conclude there is no evidence that “he

10
engaged in a protected activity under § 451.001(1).” Accordingly, we overrule
Salas’s first issue with regard to his contention that the trial court erroneously
granted summary judgment in favor of Fluor because “he engaged in a protected
activity” under section 451.001(1).

2. Section 451.001(3)

In his first issue, Salas also argues the trial court erroneously granted
summary judgment in favor of Fluor because he “provided evidence that he
engaged in a protected act based on Labor Code § 451.001(3).” Salas points to
“the following facts” as evidence: (1) “Salas reported his on-the-job injury to his
employer/supervisor”, (2) “Salas received medical treatment for his injury from the
company doctor”, (3) “[a]fter receiving medical treatment . . . Salas told his
supervisor he could not work in the field”, (4) “[r]ather than work, Fluor required
that . . . Salas work light duty by requiring him to sit on a couch in the safety office
for the next ten days”, (5) “Fluor sent emails on January 9th, 10th, 13th, 16th, and
17th to its employees regarding . . . Salas’s work injury and medical treatment,
including attaching medical records”, (6) “CP Chem reported the injury to the
worker’s compensation carrier”, and (7) “[t]he insurance adjuster[] assigned a
Workers’ Compensation claim number, referred to the injury as a ‘claim,’ and
contacted Fluor.” Salas argues his report of his on-the-job injury constituted
protected conduct under section 451.001(3) because, by reporting his injury, he
instituted or caused to be instituted a proceeding under the Workers’ Compensation
Act as required by the statute.

a. Salas did not waive his claim under section 451.001(3)

Fluor counters that Salas “failed to preserve error on his argument that his
report of his work-related injury constituted protected activity under § 451.001(3)
because he did not timely assert this argument in his Response to F[luor]’s Motion
11
for Summary Judgment.” Fluor claims that “Salas first raised this argument orally
at the hearing on summary judgment and in a ‘Post-Hearing Brief,’ filed shortly
after the hearing.” Salas responds that (1) his “opposition to summary judgment
directly argued that [he] engaged in protected [conduct] under § 451.001, including
specifically citing and quoting § 451.001(3)”, (2) he “also provided direct factual
support for a protected act under § 451.001(3)”, and (3) “even if Salas had not
sufficiently pleaded a protected act under 451.001(3), by arguing the issue at
summary judgment hearing without objection, Fluor agreed to try this issue by
express or implied consent of the parties under TRCP Rule 67.”

We reject Fluor’s waiver argument. First, we note that Salas’s live pleading
does not limit his retaliatory discharge claim to section 451.001(1). In his first
amended petition, Salas pleaded that Fluor “may not” terminate him “because [he]
received an injury on the job and pursued protected activity under Labor Code
Section 451.001.”

Second, Salas did not limit his summary judgment response to section
451.001(1); he cited to and discussed section 451.001(3) and also provided
evidence to support an argument that he engaged in protected conduct under
section 451.001(3). Under a liberal reading of Salas’s response along with his
summary judgment evidence, Salas presented the argument that his report of his
on-the-job injury constituted protected activity under section 451.001(3). See
Richmond v. L.D. Brinkman & Co. (Tex.) Inc., 36 S.W.3d 903, 905 n.2 (Tex.
App.—Dallas 2001, pet. denied) (liberally construing response to summary motion
to include preemption argument although nonmovants did not specifically state the
argument).

Third, Fluor acknowledges in its appellate brief (as well as in its response to
Salas’s post-summary judgment hearing brief) that Salas “raised this argument

12
orally at the hearing on summary judgment.” Although we do not have a transcript
of the oral summary judgment hearing, Fluor admits that the issue of whether
Salas’s report of his on-the-job injury constitutes protected conduct under section
451.001(3) was argued at the hearing. Additionally, the trial court’s summary
judgment order states that the court considered the summary judgment motion, the
summary judgment response, arguments of counsel, and the pleadings on file in
granting summary judgment in favor of Fluor.

We conclude that Salas did not “fail[] to preserve error on his argument that
his report of his work-related injury constituted protected activity under §
451.001(3)”.

b. Salas engaged in protected conduct

We address Salas’s contention that there is evidence he engaged in protected
conduct under section 451.001(3) because he “reported his on-the-job injury to his
employer/supervisor.”

We agree with Salas that section 451.001(3) does not require an employee to
actually file a workers’ compensation claim. As contrasted with section
451.001(1), which requires an employee to file a workers’ compensation claim to
constitute protected conduct, section 451.001(3) only requires that an employee
institutes or causes to be instituted a proceeding under the Texas Workers’
Compensation Act in order to engage in protected conduct. See Tex. Labor Code
Ann. § 451.001(1), (3). Several courts of appeals also agree and have held that
section 451.001(3) does not require an employee to actually file a workers’
compensation claim, and that an employee institutes or causes to be instituted a
proceeding under the Texas Workers’ Compensation Act when he informs his

13
employer of his on-the-job injury.1

1
See Hous. Auth. of City of El Paso v. Guerra, 963 S.W.2d 946, 950 (Tex. App.—El
Paso 1998, pet. denied) (“It is not necessary for a worker to have actually filed a workers’
compensation claim to invoke the statutory protection; the worker need only take steps toward
instituting a compensation proceeding to be protected. ‘Informing one’s employer of an on-the-
job injury sufficiently “institutes” a compensation proceeding within the meaning of the law.’”);
Stephens v. Delhi Gas Pipeline Corp., 924 S.W.2d 765, 771-72 (Tex. App.—Texarkana 1996,
writ denied) (same); Heinsohn v. Trans-Con Adjustment Bureau, 939 S.W.2d 793, 795 (Tex.
App.—Fort Worth 1997, writ denied) (“Moreover, when an employer knows an employee is
injured, the employer may not frustrate the purposes of the workers’ compensation law by
discharging the employee before the claim can be filed. Merely by the act of notifying the
employer of the injury, an injured employee takes steps toward ‘instituting a compensation
proceeding’ within the meaning of the statute.”) (internal citations omitted); Palmer v. Miller
Brewing Co., 852 S.W.2d 57, 60-61 (Tex. App.—Fort Worth 1993, writ denied) (Section
451.001 “can be violated even when the employee was fired before filing a claim for
compensation so long as the evidence shows that the employee took steps towards instituting a
compensation proceeding. The act of informing the employer of the injury sufficiently institutes
a compensation proceeding . . . .”) (internal citations omitted); Worsham Steel Co. v. Arias, 831
S.W.2d 81, 84 (Tex. App.—El Paso 1992, no writ) (rejecting argument that “no cause of action
for wrongful discharge exists unless a claim for workers’ compensation has been filed at the time
of discharge” but finding “all that is required to prosecute such a claim is evidence that shows an
employee took steps towards instituting a proceeding” under section 451.001, and informing his
employer of the work-related injury constitutes “an affirmative step toward instituting a
proceeding under” section 451.001); Hunt v. Van Der Horst Corp., 711 S.W.2d 77, 80 (Tex.
App.—Dallas 1986, no writ) (concluding that an employee who informed his supervisor that he
had suffered an injury on the job “instituted a proceeding” under the Workers’ Compensation
Act and, “[t]o hold otherwise would be to reward employers who are particularly adept at
anticipating and quick in firing potential workers’ compensation claimants over those who are
slower to retaliate”); Tex. Steel Co. v. Douglas, 533 S.W.2d 111, 114-16 (Tex. Civ. App.—Fort
Worth 1976, writ ref’d n.r.e.) (concluding that employee did not have to file a workers’
compensation claim because the employee’s case was pleaded “on the theory that the employer
fired him because he had instituted a ‘proceeding under the Workmen’s Compensation Law’”,
and evidence that employee’s superintendent knew of employee’s injury was sufficient to raise a
fact issue on whether employee was fired because he instituted a proceeding under the Workers’
Compensation Act).
We note that several of the courts of appeals cases were decided under former Texas
Revised Civil Statutes Annotated article 8307c, which was repealed and codified in 1993 without
any substantive changes in Texas Labor Code sections 451.001-.003. See supra n.1; see also
Tex. Mexican Ry. Co. v. Bouchet, 963 S.W.2d 52, 57 (Tex. 1998); Cont’l Coffee Prods. Co., 937
S.W.2d at 445; Harris Cty. v. Louvier, 956 S.W.2d 106, 107 n.1 (Tex. App.—Houston [14th
Dist.] 1997, no pet). Therefore, these cases are applicable to the issue before us regarding
section 451.001(3).

14
 There is nothing in the language of section 451.001(3) that requires an
employee to file a workers’ compensation claim. See Tex. Lab. Code Ann. §
451.001(3). If protected conduct under section 451.001(3) required the actual
filing of a workers’ compensation claim, the Legislature would and could have
easily stated so, just as it did in section 451.001(1). If the filing of a claim were
required under both section 451.001(1) and (3), it would make no sense to have
both subsections. The Fort Worth Court of Appeals in Texas Steel Company
recognized this years ago, stating:

If the Legislature’s intention was that the cause of action it
created by Art. 8307c, V.A.T.S., should in all instances only arise in
cases where the employee was fired after he had filed the claim for
compensation provided for in Art. 8307, . . . then the law would be
completely useless and would not accomplish the purpose for which it
was enacted. This is true because all the employer would have to do
in order to avoid the consequences of the statute would be to fire the
injured workman before he filed the claim.
* * *
Under the appellant’s contention advanced in this case there
could be no ‘proceeding under the Workmen’s Compensation Act’
unless the employee had prior thereto filed a claim for compensation
with the Industrial Accident Board. Appellant’s argument appears to
be that the filing of the claim for compensation is the start of the
‘proceeding’ that is referred to in Art. 8307c.
If that contention is correct then the Legislature’s act in
inserting into the statute the words ‘instituted, or caused to be
instituted . . . any proceeding under the Texas Workmen’s
Compensation Act’ would have been nugatory and superfluous
because that situation would have been covered, even if those words
had been left out of the statute completely, by the part of the statute
that creates a cause of action against an employer for firing an
employee because he filed a claim [in now subsection 451.001(1)].
533 S.W.2d at 115-16 (ellipsis in original).

We conclude that an employee need not file a workers’ compensation claim

15
to engage in protected conduct under section 451.001(3); an employee institutes or
causes to be instituted a relevant proceeding under section 451.001(3) when he
informs his employer of his on-the-job injury. See Guerra, 963 S.W.2d at 950;
Stephens, 924 S.W.2d at 771-72; Heinsohn, 939 S.W.2d at 795; Palmer, 852
S.W.2d at 60-61; Worsham Steel Co., 831 S.W.2d at 84; Hunt, 711 S.W.2d at 80;
Tex. Steel Co., 533 S.W.2d at 114-16.2 Here, Salas informed his employer through
his immediate supervisor, Alanis, that he sustained an injury when he twisted his
knee and fell against a pipe support and was taken to the doctor by Fish, a safety
department supervisor.

Therefore, there is sufficient evidence that Salas instituted or caused to be
instituted a proceeding under the Workers’ Compensation Act when he informed
his supervisor of his injury and thus engaged in protected conduct under section
451.001(3). Accordingly, we sustain Salas’s first issue with regard to his argument
that the trial court improperly granted summary judgment because he “engaged in
protected activity” under section 451.001(3).

2
Cf. In re Poly-Am., L.P., 262 S.W.3d at 350 (“The Legislature’s purpose in enacting section
451.001 was to protect persons entitled to benefits under the Act and to prevent them from being
discharged for seeking to collect those benefits. See Tex. Steel Co., 533 S.W.2d 111, 115 (Tex.
Civ. App.—Fort Worth 1976, writ r ref’d n.r.e.). Since recovery of benefits under the Workers’
Compensation Act is the exclusive remedy available to injured employees of subscribing
employers, see Tex. Lab. Code § 408.001(a), the availability of remedies for retaliatory
discharge protects employees’ exercise of their statutory rights to compensation under the Act.
See Padilla v. Carrier Air Conditioning, 67 F.Supp.2d 650, 664 (E.D. Tex. 1999); Mid-South
Bottling Co. v. Cigainero, 799 S.W.2d 385, 389 (Tex. App.—Texarkana 1990, writ denied). In
accordance with these principles, the anti-retaliation provisions of the Act must protect
employees even before they have actually filed a claim, because otherwise ‘the law would be
completely useless and would not accomplish the purpose for which it was enacted . . . . [A]ll
the employer would have to do in order to avoid the consequences of the statute would be to fire
the injured workman before he filed the claim.’ Tex. Steel Co., 533 S.W.2d at 115.”).

16
 C. Causal Link

Next, we address Salas’s second issue, in which he contends that he
presented evidence of a causal link between his protected conduct under section
451.001(3) and his termination. In addressing whether a fact issue exists, we
examine several factors that may establish the existence of a causal link.

1. Decision maker’s knowledge

We begin by determining whether there is evidence that a decision maker at
Fluor had knowledge of Salas’s protected conduct. Salas contends that several
Fluor employees, including superintendent Aycock, testified that Salas’s
supervisor Alanis was the decision maker responsible for placing Salas on the
reduction of force list. Salas argues the evidence shows that Alanis, Aycock, and
“a litany of other Fluor employees” knew he suffered an on-the-job injury but that
Fluor tried to hide and obfuscate the identity of the decision maker responsible for
his termination. Salas also argues that Alanis and Aycock both knew of his injury
but claimed they did not make the decision to place him on the reduction of force
list and terminate him.

The record before us contains conflicting evidence as to who the decision
maker was placing Salas on the reduction of force list. Alanis averred in an
affidavit that he knew of Salas’s work-related injury but did not place Salas on the
reduction of force list. Instead, Alanis swore:

2. My name is Oliver Alanis. I worked for Fluor . . . at the CP
Chem site . . . . In January 2017, I held the position of foreman, and I
was the direct supervisor of Rogelio Salas. On or about January 9,
2017, I learned that Mr. Salas suffered an on-the-job injury. As part
of my job duties, I filled out an incident report statement for this
injury and took Mr. Salas to the doctor for medical treatment.
3. Several weeks later, I was told via paperwork, that Fluor was
ending Mr. Salas’ employment. I did not select or cho[o]se Mr. Salas
17
 to be part of any reduction in force or termination, and I was not a part
of and did not make the decision to end Mr. Salas’ employment or
subject him to any so-called reduction in force. I am not aware who
selected Mr. Salas for termination or a reduction in force. I am also
not aware of the reasons why Mr. Salas, as opposed to another
pipefitter, was selected for termination. I only know that someone
above me at Fluor decided to end Mr. Salas’s employment.
4. In addition, Richard Aycock never told me in January 2017 to
select one of the pipefitters in my crew for a reduction in force.
Instead, I was only told via paperwork that Fl[uo]r was ending Mr.
Salas’s employment. I also did not sign or fill out any reduction of
force paperwork for Mr. Salas.
5. I do not know of any reason why Mr. Salas would be
terminated as opposed to other pipefitters in my crew. Mr. Salas was
a good and hard worker, and if I had been asked to select a pipefitter
from my crew in January 2017 for a reduction in force, I would not
have selected Mr. Salas.
On the other hand, Aycock testified that it was Alanis who decided Salas should be
included on the reduction of force list and that it was Alanis’s responsibility as
crew supervisor to make that decision. Aycock also testified about his limited role
with regard to placing Salas on the reduction of force list and Salas’s subsequent
discharge. According to Aycock, after Alanis decided “on his own” who is subject
to a reduction of force, Aycock reviewed the reduction of force paperwork and
signed off on the form.3

Additionally, Fluor’s corporate representative and senior manager at human
resources, Deborah Bataillon, testified during her deposition that Alanis, Aycock,
and Stockton had the authority to terminate Salas and they decided Salas was
subject to a reduction of force. Despite Bataillon’s testimony that Stockton was a
decision maker, Stockton testified to the contrary. He stated in his deposition that

3
Here, the reduction of force list was signed only by Aycock and his superior Chris
Bennett; it was not signed by Alanis or any other Fluor employees.

18
he was not “part of the decision about who should be laid off”, he had no
“involvement in the decision to lay off” Salas, and he does not know who actually
decided “to make Mr. Salas subject to a layoff.”

Salas also testified at length during his deposition. With regard to who the
decision maker was, Salas testified that Alanis told him on the day he was
terminated that the decision to terminate him “came from up above.” According to
Salas, Alanis told him that Aycock “was the man that ultimately chose to put
[Salas] on the termination list.”

Relying on Aycock’s deposition testimony, Fluor asserted below that Alanis
was the decision maker who put Salas on the reduction of force list. Fluor also
asserted that Aycock was the decision maker approving Salas’s selection for a
reduction of force. At oral argument, Fluor affirmed that, during his deposition
testimony, Aycock did not disclaim that he was a decision maker and that he
decided to terminate Salas based on Alanis’s recommendation.

We conclude that the evidence in the record at least raises a fact issue that
Alanis, Aycock, or both were decision makers in selecting Salas for a reduction of
force; Fluor even acknowledges in its brief that there is “a question of fact
regarding who made the decision to select Salas for layoff.” Therefore, we next
consider whether Alanis and Aycock, identified as decision makers, had
knowledge of Salas’s injury.

Alanis averred in his affidavit (and Fluor does not dispute) that Alanis
learned of Salas’s injury on January 9, 2017, took Salas to get medical treatment,
and even filled out an incident report describing the injury. The record contains
the Supervisor’s Initial Incident Report, in which Alanis described when, where,
and how Salas’s injury occurred on January 9, 2017.

19
 However, although Fluor does not disclaim that Aycock was a decision
maker, Fluor disputes Aycock had any knowledge of Salas’s injury based on
Aycock’s deposition testimony. Fluor argues that Aycock testified he did not
know of Salas’s injury until he was contacted about taking his deposition almost a
year after the decision to terminate Salas was made. Fluor also argues that Salas
incorrectly asserts that his summary judgment exhibit 15 provides evidence of
Aycock’s knowledge.

Salas cites to exhibit 15 which contains a January 9, 2017 email sent by
Fluor employee William Walley to numerous Fluor employees, including Aycock,
attaching the January 9, 2017 Incident Report regarding Salas’s injury. It also
contains emails from January 10, January 13, January 16, and January 17, 2017
from Walley to the same Fluor recipients attaching Fluor’s Daily First-Aid Records
regarding Salas’s injury.

Fluor claims that “emails Aycock was copied on” were not evidence that
Aycock knew Salas suffered an on-the-job injury because the January 9, 2017
Incident Report sent to Aycock via email (1) was not an injury report, (2) was
“prepared for ‘information only,’” (3) identified the “Specific Injury Type” in the
report as “None”, and (4) stated Salas was evaluated and “determined to have no
injuries.” However, the title of the report is not determinative. The Incident
Report specifically states that Salas’s left knee was hurt, that he twisted his left
knee, and that he fell against a pipe support.

Even without a clear and unequivocal statement in the Incident Report that
Salas suffered an injury, the documents provide sufficient information that Salas
suffered an on-the-job injury. Beginning with the January 9, 2017 Daily First-Aid
Record sent to Aycock, it states under the “Nature and Cause of Injury” rubric:
“Slip/Trip, Left knee pain”, and under the “Treatment Administered/Disposition”

20
rubric: “Very minor”. The January 12, 2017 Daily First-Aid Record provides
under the “Nature and Cause of Injury” rubric: “Slip/Trip, Left knee pain”, and
under the “Treatment Administered/Disposition” rubric: “Ice 20min x 3 per day,
Iprin 400mg”4. The January 13, 2017 Daily First-Aid Record provides under the
“Nature and Cause of Injury” rubric: “Slip/Trip, Left knee pain”, and under the
“Treatment Administered/Disposition” rubric: “Iprin 400mg, Ice Therapy x 20
minutes”. The January 16, 2017 Daily First-Aid Record states under the “Nature
and Cause of Injury” rubric: “Slip/Trip, Left knee pain”, and under the “Treatment
Administered/Disposition” rubric: “Eval at Occ Health”.

Fluor does not dispute that Aycock received the Incident Report and the four
Daily First-Aid Records via email. Because these documents show that Salas
suffered an injury and received medical treatment for it, we reject Fluor’s
contention that Salas failed to produce evidence of Aycock’s knowledge of Salas’s
injury. Instead, we conclude the documents Aycock received via email constitute
sufficient evidence to raise a fact issue regarding whether Aycock had knowledge
of Salas’s injury at the time Salas was placed on the reduction of force list and
terminated.

We conclude the record contains sufficient evidence to raise a fact issue as
to whether Alanis and/or Aycock were decision makers and had knowledge of
Salas’s on-the-job injury at the time Salas was placed on the reduction of force list
and terminated.

2. Timing

Salas also contends that the timing of his termination is evidence of a causal
link between his protected conduct and Fluor’s adverse employment action.

4
Ibuprofen is the generic name for Iprin. See https://www.drugs.com/cons/i-prin.html.

21
 Salas informed Alanis of his injury shortly after it happened the morning of
January 9, 2017. Aycock received information regarding Salas’s injury on January
9, 10, 13, 16 and 17. Salas was placed on the reduction of force list on January 20,
2017, and terminated three days later. The lapse of time between Salas informing
Fluor that he suffered an injury and Fluor’s adverse employment action is merely
11 days. This is a short time. “Close timing between an employee’s protected
activity and the adverse action can provide the causal connection required for a
prima facie case.” Johnson, 203 S.W.3d at 11; see also Cardenas, 527 S.W.3d at
399.

3. Company policy and difference in treatment

Salas asserts that Fluor violated its company policy because he was placed
on the reduction of force list without consideration of the six factors Fluor required
the decision maker in charge of selecting employees for reduction of force to
evaluate in making the selection. In support of his assertion, Salas points to
Bataillon’s deposition testimony stating that Alanis (as Salas’s supervisor) selected
Salas for a reduction of force and, in making his decision, was required to evaluate
company-prescribed factors before selecting Salas. Salas also points to Alanis’s
affidavit in which he averred that he “did not select or cho[o]se Mr. Salas to be part
of any reduction in force or termination, and I was not a part of and did not make
the decision to end Mr. Salas’ employment or subject him to any so-called
reduction in force.” Salas asserts that the evidence shows Fluor violated its policy
because Alanis “never selected Salas for termination, much less reviewed the
factors for a reduction in force.”

In the trial court, Fluor claimed that Aycock instructed Alanis as the crew
supervisor to select an employee for reduction of force using six specific factors.
Aycock testified that Alanis was the supervisor who made the decision to place

22
Salas on the reduction of force list. He testified that supervisors are required to use
“several factors” in deciding whom to select for a reduction of force. Aycock
testified he does not “evaluate any of the factors or the basis for [a supervisor]
reaching that decision” but trusts his supervisors, including Alanis, to make the
decision to select an employee for a reduction of force. Bataillon also testified that
Alanis selected Salas for a reduction of force and, in making his decision, Alanis
was required to evaluate six factors before selecting Salas.

After claiming that Alanis was the decision maker who selected Salas for a
reduction of force and who was required and expected to consider six factors in
making his decision, Fluor cannot now claim that Alanis’s affidavit is not
competent evidence simply because Alanis (1) controverted Aycock’s and
Bataillon’s testimony and (2) averred that he never selected or was part of the
decision to select Salas for a reduction of force. Fluor cannot claim that Alanis
was the decision maker and considered required factors in reaching his decision
and simultaneously claim Alanis was not the decision maker who could not
“competently testify as to whether or not the six factors were reviewed or
considered when Salas was selected” and thus whether Fluor adhered to its
policies.

We also note that Salas’s Employee Separation Form does not contain all
required signatures for approval. The form provides in capitalized, bold letters that
approval and signatures are required from “Project Management” and “Human
Resources”. However, only Stockton signed the form in the rubric provided for
“Human Resources”; the rubric for “Project Management” states “N/A”.

Salas also argues that Fluor treated him “different[ly] from other employees
because the proper chain of command at Fluor did not sign and review the
‘reduction of force’ form for Salas.” Salas argues that “Fluor required a human

23
resources representative, the site manager, and the superintendent to sign and
review the reduction of force forms.” According to Salas, “every other reduction
of force form in the month of January — the entirety of the scope of the forms
produced in this lawsuit — included signatures from the three supervisors in the
chain of command” while Salas’s form was only signed by a superintendent.

Eight reduction of force forms listed over 30 employees for the month of
January 2017 and Salas correctly states that every other form (besides his) was
signed by a Human Resources Representative, Superintendent/Designee, and Site
Manager/Designee. Nonetheless, Fluor argues that the lack of signatures on
Salas’s form is not evidence he was treated differently because Bataillon “simply
confirmed” that the reduction of force form “selecting Salas for layoff was not
signed by a human resources representative or site manager”, but she did not
“attest that any F[luor] policy or procedure required all three signatures.”
However, Bataillon did more than “simply confirm” the lack of two other
signatures; she confirmed that “Salas’ [form] was different than the other
employees who are laid off.”

The reduction of force list form specifically states: “Human Resources (HR)
must review this document prior to final approvals. List must be received by HR
no later than 12:30 noon the day before the scheduled ROF. Failure to do so may
delay processing the ROF. Deviations from this format or changes in dates, times,
or names must also be reviewed by HR and Site Manager/Designee. Factors
considered in layoffs may include, but are not limited to: expertise, project
need/remaining scope of work, performance, attendance, discipline, and training.”
This language provides some evidence that approval of a reduction of force
selection is required by signatures on every form. Salas’s form is different than the
other reduction of force forms. It is the only form lacking all three signatures; it is

24
only signed by Aycock and Bennett in the superintendent space.

Fluor also contends that Salas cannot show “he was treated differently than
all other employees terminated in the month of January whose Reduction in Force
forms contained three signatures” because he failed to present evidence that the
other employees were similarly situated. Fluor contends that “[g]iven that these
employees were on a different crew, had a different supervisor, held different
positions, and had different physical capabilities, Salas failed to sufficiently
demonstrate that he was similarly situated to these employees.” However, this
argument is unpersuasive. First, there were several employees who actually held
the same position as Salas. Second, the number of signatures on the reduction of
force forms is not dependent on or specific to an employee’s position, capabilities,
crew, or supervisor. There is nothing to suggest that employees working in
different positions, on different crews, or under different supervisors would receive
something other than all three signatures on their reduction of force forms.
Additionally, based on the form’s language, each employee placed on the reduction
of force list for layoff is selected using the same factors listed on the form.
Therefore, employees are selected based on the same criteria and are comparable
for purposes of a reduction of force.

We conclude there is some evidence in the record showing that Fluor
violated its company policies and treated Salas differently than other employees
who were placed on the reduction of force list and terminated.

4. Negative attitude

Salas does not assert that anyone at Fluor expressed a negative attitude
toward him after he reported his injury, nor does the record contain any evidence
of a negative attitude by any Fluor employee.

25
 5. False reason for termination

Lastly, Salas contends there is substantial evidence that Fluor’s proffered
reason for his termination was false. Salas contends that, although Fluor identified
Alanis, Aycock, and Stockton (via Bataillon’s deposition testimony) “as
responsible for the ‘reduction in force’”, a “careful review of the process” shows
that “Alanis had the sole discretion and authority to terminate” Salas. In that
regard, Salas points out that (1) Stockton testified he was not part of the decision to
select employees for a reduction of force; (2) Aycock testified that Alanis selected
Salas for a reduction of force and Aycock only signed off on the form without an
independent review; and (3) Bataillon testified (a) she does not know why Alanis
selected Salas for a reduction of force and (b) only Alanis knows why he selected
Salas. According to Salas, Alanis’s affidavit testimony (stating he neither selected
nor had any part in the decision to select Salas for a reduction of force) constitutes
evidence that Fluor’s assertion Salas was terminated because Alanis selected him
for a reduction of force is false.

We cannot agree with Fluor that the evidence is undisputed and “clearly
established that Salas was terminated as part of ongoing” reductions of force.
Instead, we agree with Salas that there is evidence in the record supporting Salas’s
contention that the reason Fluor provided for his termination is false.

First, considering Fluor asserted that Alanis chose Salas for a reduction of
force after Aycock instructed Alanis to select employees and provide names of the
selected employees, Fluor cannot now claim Alanis’s affidavit constitutes no
evidence because Alanis averred he was not the decision maker. Fluor cannot
claim Alanis was the decision maker who selected Salas for a reduction of force
per Aycock’s instruction to select an employee from his crew while also claiming
Alanis’s affidavit cannot refute Salas was terminated because of a reduction of

26
force because Alanis (according to his affidavit) did not select Salas and has no
knowledge why Salas was terminated.

In his affidavit, Alanis stated (1) he was told “via paperwork” that Fluor was
terminating Salas and he “did not sign or fill out any reduction of force paperwork
for” Salas; (2) he did not select and was not part of the decision to select Salas for
a reduction of force or termination; (3) he did not know who chose Salas and “only
know[s] that someone above [him] at Fluor decided to end Mr. Salas’
employment”; and (4) Aycock never told Alanis in January 2017 to select a
pipefitter on his crew for a reduction of force. Thus, Alanis’s affidavit controverts
Fluor’s contention that (1) Aycock instructed Alanis to select a pipefitter on his
crew for reduction of force and provide him with the name of the selected
employee; (2) Alanis selected Salas for a reduction of force and gave Aycock
Salas’s name; and (3) Aycock “reviewed and approved Salas’s selection for layoff
as part of a reduction in force”.

Second, even if Salas admitted during his deposition testimony that there
were “constant” reductions of force (as Fluor contends), this alleged “admission” is
not “undisputed evidence” that Salas was terminated because of a reduction of
force. Third, contrary to Fluor’s assertion, evidence that other pipefitters were
terminated due to a reduction of force does not translate to “undisputed evidence”
that Salas was terminated for that same reason. Also, Fluor has not pointed to
evidence that any of these employees were injured and not working at the time
they were approved for a reduction of force.

Fourth, Fluor’s contention that Salas’s signature on his Employee Separation
Form is “undisputed evidence” that he was terminated because of a reduction of
force is unpersuasive. Salas testified that before signing the Employee Separation
Form, he told Stockton he “didn’t understand why [he] was being laid off if [he]

27
was still getting medical treatment or . . . still had to go to the doctor.” Salas also
testified he asked Stockton where the employee comment section was on the
separation form, but Stockton told him the form does not have a comment section:

Q. Okay. And what do you recall Mr. Stockton saying in terms of
any conversation between you and he? You said you asked him about
employee comments?
A. Yes. I had told him that this separation form normally comes
with any employee comments on the bottom before you sign the name
or under the name, and he said these forms didn’t come with that. I
said, “Every other form that I’ve seen, most of the other forms come
with any comments done by the person signing to contradict or
contest what’s going on.”
Q. Okay. And what, if any, response did he make to that
statement?
A. Like he said, this form doesn’t have that section.
Salas’s testimony provides some evidence that he did not “acknowledge” or agree
he was being terminated as part of a reduction of force.

Fifth, Fluor claims “Salas’s prior written statements made under oath to the
Texas Workforce Commission when he was applying for unemployment benefits
in which he stated the reason for the end of his employment was for a layoff” is
undisputed evidence he was terminated because of a reduction of force. However,
Fluor’s citation to the record does not contain the alleged written statements by
Salas, and we have not located a document containing these alleged statements in
the record.

After reviewing all relevant factors, we conclude there is summary-judgment
evidence that raises an issue of material fact with regard to whether there is a
causal link between Salas’s protected conduct under section 451.001(3) and his
termination. The trial court erred in concluding to the contrary, and therefore we
sustain Salas’s second issue.

28
 D. Legitimate Reason for Termination and Pretext

In his third issue, Salas argues that he has “directly disputed [Fluor]’s
claimed legitimate reason for termination.” He argues that Alanis’s affidavit
refutes Fluor’s assertion that Salas was terminated because Alanis selected him for
a reduction of force. Fluor counters that it “conclusively established that Salas was
terminated for a legitimate, non-retaliatory reason wholly unrelated to Salas’s
reporting of his on-the-job injury” and that Alanis’s affidavit creates no “triable
issue of fact”.

Based on the record before us, we agree that there is evidence Fluor
terminated Salas for a legitimate, non-discriminatory reason — namely a reduction
of force. However, Fluor did not conclusively prove its stated legitimate reason
because Salas presented evidence that the stated reason is false or a pretext.

Fluor heavily relied on Aycock’s deposition in which he testified that (1) he
instructed Alanis that reductions needed to be made to the pipefitter workforce
according to senior management; (2) Alanis selected Salas for layoff based on
specific factors mandated by Fluor; (3) Alanis placed Salas on the reduction of
force list selected for layoff on January 20, 2017; and (4) Aycock reviewed and
approved Alanis’s decision to include Salas on the reduction of force list. But
Salas presented evidence refuting Aycock’s testimony. Salas presented Alanis’s
affidavit which, contrary to Fluor’s assertion, raises a fact issue regarding whether
Fluor’s stated reason for Salas’s termination is false.

Alanis’s affidavit completely contradicts Aycock’s testimony5 that Alanis
selected Salas for a reduction of force and layoff because Alanis testified (1)
5
It also contradicts Bataillon’s testimony because she claimed that Alanis selected Salas
for a reduction of force and layoff based on Fluor-mandated factors, and this decision was later
approved by Aycock.

29
Aycock never told him in January 2017 to select a pipefitter on his crew for a
reduction of force; (2) he did not select and was not part of the decision to select
Salas for a reduction of force or termination; (3) he “did not sign or fill out any
reduction of force paperwork for” Salas; (4) he did not know who chose Salas and
“only know[s] that someone above [him] at Fluor decided to end Mr. Salas’
employment”; and (5) he was told “via paperwork” that Fluor was terminating
Salas. Moreover, Alanis averred that Salas was a “good and hard worker, and if
[Alanis] had been asked to select a pipefitter from [his] crew in January 2017 for a
reduction in force, [he] would not have selected Mr. Salas.”

We also note that the lapse of time between Salas informing Fluor that he
suffered an injury and Fluor’s adverse employment action is merely 11 days.
There is evidence that Aycock learned of Salas’s work-related injury shortly after
it happened and thus knew of the injury when he approved Salas’s termination.
See Cardenas, 527 S.W.3d at 399 (a small time lapse between employee’s
protected conduct and employer’s adverse employment action is circumstantial
evidence of a retaliatory motive); Parker, 365 S.W.3d at 67 (same).

We conclude there is some evidence that Fluor’s stated reason for Salas’s
termination is false or a pretext. Therefore, the trial court erred in determining that
Fluor conclusively established it terminated Salas for a legitimate, non-
discriminatory reason, and that Salas did not produce controverting evidence. See
Cont’l Coffee Prods. Co., 937 S.W.2d at 451-52. Accordingly, we sustain Salas’s
third issue.

E. Work Performance

Salas argues in his fourth issue that summary judgment on his retaliatory
discharge claim was also erroneously granted because Fluor’s authorities do not
support its contention that it properly terminated Salas based on his inability to
30
perform his work. Salas also argues that Fluor “never alleged that it fired Mr.
Salas because he was unable to perform his job” and “cannot now use this basis as
a justification for its retaliation.” Fluor responds that it was entitled to summary
judgment as a matter of law because “Texas courts have consistently held in the
context of workers’ compensation retaliation cases that ‘an employer may
terminate an employee who sustains a job related injury if it ultimately appears
that, due to the nature of the injury, the employee can no longer perform the
essential functions of his position.’”

The cases Fluor relied on in the trial court and now on appeal do not support
its argument that Salas’s termination was proper because he could not perform his
work when Fluor did not terminate him for that reason. In each of the cases Fluor
cites, the employer terminated its employee for the stated reason that the employee
could not perform his job. See Phillips v. SACHEM, Inc., No. 03-13-00346-CV,
2014 WL 7464035, at *5 (Tex. App.—Austin Dec. 31, 2014, no pet.) (mem. op.)
(“In this case, there is no dispute that SACHEM’s proffered reason for terminating
Phillips was that he was unable to work at the time he was terminated.”); Love v.
Geo Grp., Inc., No. 04-12-00231-CV, 2013 WL 1223870, at *1, *5 (Tex. App.—
San Antonio Mar. 27, 2013, no pet.) (mem. op.) (employer’s human resources
representative stated, “My decision [to terminate Mr. Love] was based on the
information I received from his physician and Mr. Love’s inability to meet
minimum job responsibilities and physical requirements of being a detention
officer”) (brackets in original); Clevinger v. Fluor Daniel Servs. Corp., No. 10-11-
00288-CV, 2012 WL 1366575, at *3 (Tex. App.—Waco Apr. 18, 2012, no pet.)
(mem. op.) (Clevinger was terminated because he could not perform his job); Tri-
Cty. Elec. Co-op., Inc. v. Tidwell, 859 S.W.2d 109, 111-12 (Tex. App.—Fort
Worth 1993, writ denied) (“evidence shows that Tidwell was kept on the payroll

31
for approximately two years before he was terminated, and then only when he was
not able to obtain a full medical release[;] Tidwell’s termination was due to his
inability to obtain a full medical release and return to work”).

Here, Fluor never stated nor in any way implied that it terminated Salas
because he was unable to perform his job. Fluor was not entitled to summary
judgment on the basis that it properly terminated Salas because he was unable to
perform his work, and the trial court erroneously granted summary judgment on
that basis. Accordingly, we sustain Salas’s fourth issue.

III. Punitive Damages

Salas contends in his fifth and final issue that he “provided sufficient
evidence of exemplary damages related to his termination and discrimination.”
Salas claims he presented evidence that Fluor “fraudulently alleged it terminated
him based on a reduction of force” and did so with the intent to harm him.

Before an employee may recover punitive damages from an employer for a
violation of the Anti-Retaliation Law, he must prove actual malice by clear and
convincing evidence. See Sw. Bell Tel. Co. v. Garza, 164 S.W.3d 607, 628-29
(Tex. 2004); Cont’l Coffee Prods. Co., 937 S.W.2d at 452-54. For purposes of
chapter 451, actual malice means “ill-will, spite, evil motive, or purposeful injury.”
See Sw. Bell Tel. Co., 164 S.W.3d at 628; Cont’l Coffee Prods. Co., 937 S.W.2d at
452, 454. “By requiring evidence of ill-will, spite, or a specific intent to cause
injury to the employee, courts will ensure that only egregious violations of the
statute will be subject to punitive awards.” Cont’l Coffee Prods. Co., 937 S.W.2d
at 454.

Salas has not directed us to any evidence that raises a fact issue on whether
Fluor acted with actual malice in this case, and our review of the record has not

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revealed any such evidence. An employer’s violation of section 451.001 alone
does not support an award of punitive damages. Id. at 453; Hertz Equip. Rental
Corp. v. Barousse, 365 S.W.3d 46, 60 (Tex. App.—Houston [1st Dist.] 2011, pet.
denied). Because there is no evidence of actual malice, we conclude the trial court
correctly granted summary judgment on Salas’s punitive damages claim.
Accordingly, we overrule Salas’s fifth issue.

CONCLUSION

We affirm the trial court’s summary judgment with respect to Salas’s
retaliatory discharge claim under Texas Labor Code section 451.001(1) and Salas’s
punitive damages claim. We reverse the trial court’s summary judgment regarding
Salas’s retaliatory discharge claim under Texas Labor Code section 451.001(3) and
remand that claim to the trial court for proceedings consistent with this opinion.

/s/ Meagan Hassan
Justice

Panel consists of Justices Christopher, Bourliot, and Hassan (Christopher, J.
concurring in result only).

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