ACCEPTED
08-21-00145-CV
EIGHTH COURT OF APPEALS
08-21-00145-CV EL PASO, TEXAS
11/2/2021 2:51 PM
ELIZABETH G. FLORES
CLERK
NO. 08-21-00145-CV
FILED IN
IN THE EIGHTH COURT OF APPEALS8th COURT OF APPEALS
EL PASO, TEXAS
EL PASO, TEXAS
11/2/2021 2:51:42 PM
ELIZABETH G. FLORES
Clerk
SCHNEIDER ELECTRIC USA, INC. d/b/a
SCHNEIDER ELECTRIC,
Appellant
v.
MARIA RAMIREZ,
Appellee
On Appeal from the 327th District Court, El Paso, Texas
Cause No. 2019DCV3145
Judge Linda Yee Chew, presiding
APPELLANT’S OPENING BRIEF
Andrew M. Gould Noemi Lopez
Texas State Bar No. 00792541 Texas State Bar No. 24078881
andrew.gould@wickphillips.com nlopez@raylaw.com
Molly M. Jones
Texas State Bar No. 24100271 RAY, PEÑA, MCCHRISTIAN, PC
molly.jones@wickphillips.com 5822 Cromo Drive
Dana M. Hilzendager El Paso, Texas 79912
Texas State Bar No. 24106099 Telephone: 915.832.7243
dana.hilzendager@wickphillips.com Facsimile: 915.832.7333
WICK PHILLIPS GOULD & ATTORNEYS FOR APPELLANT
MARTIN, LLP SCHNEIDER ELECTRIC USA, INC.
3131 McKinney Avenue, Suite 500 d/b/a SCHNEIDER ELECTRIC
Dallas, Texas 75204
Telephone: 214.692.6200
Facsimile: 214.692.6255
IDENTITY OF PARTIES AND COUNSEL
Appellant: Counsel for Appellant:
Schneider Electric USA, Inc. d/b/a Andrew M. Gould
Schneider Electric Molly M. Jones
Dana M. Hilzendager
WICK PHILLIPS GOULD &
MARTIN, LLP
3131 McKinney Avenue, Suite 500
Dallas, Texas 75204
Noemi Lopez
RAY, PEÑA, MCCHRISTIAN, PC
5822 Cromo Drive
El Paso, Texas 79912
Appellee: Counsel for Appellee:
Maria Ramirez Enrique Chavez, Jr.
Michael R. Anderson
Christine A. Chavez
CHAVEZ LAW FIRM
2101 Stanton Street
El Paso, Texas 79902
Defendant (Trial Court): Counsel for Aerotek, Inc. (Trial
Court):
Aerotek, Inc.
Christine E. Reinhard
Dylan A. Farmer
SCHMOYER REINHARD LLP
8000 IH 10 West, Suite 1600
San Antonio, Texas 78230
i
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ............................................................ i
TABLE OF CONTENTS .......................................................................................... ii
INDEX OF AUTHORITIES.................................................................................... iii
STATEMENT OF THE CASE ..................................................................................1
STATEMENT REGARDING ORAL ARGUMENT ...............................................2
ISSUES PRESENTED...............................................................................................3
STATEMENT OF FACTS ........................................................................................4
SUMMARY OF THE ARGUMENT ........................................................................6
ARGUMENT ............................................................................................................ 7
CONCLUSION AND PRAYER .............................................................................12
APPENDIX ..............................................................................................................13
CERTIFICATE OF SERVICE ................................................................................15
CERTIFICATE OF COMPLIANCE .......................................................................16
ii
INDEX OF AUTHORITIES
Page(s)
Cases
Burton v. Freescale Semiconductor, Inc.,
798 F.3d 222 (5th Cir. 2015) ....................................................................... passim
City of LaPorte v. Barfield,
898 S.W.2d 288 (Tex. 1995) ..............................................................................8, 9
Garza v. Exel Logistics, Inc.,
161 S.W.3d 473 (Tex. 2005) ........................................................................... 9, 10
Mexican Ry. Co. v. Bouchet,
963 S.W.2d 52 (Tex. 1998) .......................................................................... passim
Nanez v. Swift Transportation Corp.,
No. EP-07-CV-361-PRM, 2009 WL 10700191 (W.D. Tex. June 5, 2009) ..........8
Wingfoot Enterprises v. Alvarado,
111 S.W.3d 134 (Tex. 2003) ........................................................................... 7, 10
Statutes
Tex. Lab. C. § 405.001...........................................................................................1, 7
Tex. Lab. C. § 406.002...............................................................................................7
Tex. Lab. C. § 408.001.............................................................................................10
Tex. Rev. Civ. Stat. art. 8307c ...................................................................................8
Rules
Tex. R. App. P. 28.3(e)(1) ........................................................................................ ii
Tex. R. App. P. 9.4(i)(B) .........................................................................................16
iii
STATEMENT OF THE CASE
Nature of the Case Appellee/Plaintiff Maria Ramirez (“Ramirez”) brought a
workers’ compensation discrimination claim under Texas
Labor Code Section 451.001 (“Section 451”) against
Appellant/Defendant Schneider Electric USA, Inc.
(“Schneider Electric”). (CR 47.)
Course of Schneider Electric moved for summary judgment on the
Proceeding
Section 451 claim solely on grounds that it did not provide
Ramirez with workers’ compensation benefits and,
therefore, it could not be liable to her. (CR 85-104; Appx.
Tab 2.) The trial court denied the motion but allowed
Schneider Electric to seek a permissive appeal of the
threshold issue. (CR 1035-37; Appx. Tab 1.) This Court
granted the Petition for Permissive Appeal.
Trial Court Order Amended Order on Motions for Summary Judgment and
on Appeal
Order Granting Schneider Electric’s Motion for Permission
to Appeal (id.)
1
STATEMENT REGARDING ORAL ARGUMENT
Schneider Electric does not request oral argument in this appeal, unless a
panel of Justices assigned to this matter believes it would assist in providing a more
complete understanding of the legal arguments presented in this appeal.
2
ISSUES PRESENTED
Whether Schneider Electric can be liable for Section 451 workers’
compensation discrimination to a temporary worker on assignment who pursued
workers’ compensation benefits through her staffing agency employer and who was
not covered by Schneider Electric’s workers’ compensation coverage?
3
STATEMENT OF FACTS
Schneider Electric maintains a manufacturing facility in El Paso, Texas and
contracts with staffing companies to supplement its workforce with temporary
personnel. (CR 104; Appx. 2C.) Aerotek, Inc. (“Aerotek”), a staffing company,
employed Ramirez and assigned her to provide temporary services at Schneider
Electric’s El Paso facility. (CR 102; Appx. 2B.) Aerotek provides its employees,
including Ramirez, with workers’ compensation coverage. (Id.) Schneider Electric
provides such coverage to its own employees, but not to temporary staff, like
Ramirez. (CR 104; Appx. Tab 2C.)
Ramirez filed a workers’ compensation claim with Aerotek during her
temporary work assignment at Schneider Electric. (CR 102; Appx. 2B.) Due to a
serious safety infraction, Ramirez’s assignment to Schneider Electric ended. (CR
104; Appx. Tab 2C.) Ramirez then brought claims for workers’ compensation
discrimination under Section 451 against Schneider Electric and Aerotek.1 (CR 47.)
The trial court dismissed the claim against Aerotek. (CR 1035-37; Appx. Tab 1.)
Schneider Electric sought summary judgment on the Section 451 claim,
contending it could not be liable to Ramirez under Section 451 since it did not
provide her workers’ compensation coverage. (CR 85-104; Appx. Tab 2.) The trial
1
Ramirez also filed other claims against Aerotek and Schneider Electric. (CR 39-53.) Aerotek
removed the case to the U.S. District Court for the Western District of Texas, but Ramirez’s
Section 451 claims were severed and remanded back to state court. (CR 26-84.)
4
court denied Schneider Electric’s motion. (CR 1035-37; Appx. Tab 1.) The trial
court, however, permitted Schneider Electric to seek an appeal because the question
of its liability under Section 451 to Ramirez—the sole remaining claim in the case—
was a threshold, case-dispositive issue. (Id.) Schneider Electric filed a Petition in
this Court for Permissive Appeal, and the Court granted the Petition. See September
24, 2021 Order.
5
SUMMARY OF THE ARGUMENT
The trial court erred in denying summary judgment in Schneider Electric’s
favor. Schneider Electric cannot be liable to Ramirez under Section 451 as a matter
of law because it did not provide workers’ compensation coverage to her. Mexican
Ry. Co. v. Bouchet, 963 S.W.2d 52, 56 (Tex. 1998) (non-subscribers to workers’
compensation cannot be liable under Section 451 to an injured worker); Burton v.
Freescale Semiconductor, Inc., 798 F.3d 222, 241-43 (5th Cir. 2015). For this
reason, the trial court’s order denying summary judgment should be reversed and
Ramirez’s Section 451 claim against Schneider Electric should be dismissed with
prejudice.
6
ARGUMENT
Schneider Electric has no liability to Ramirez under the anti-discrimination
provisions of the Texas Workers’ Compensation Act (the “Act”) set forth in Section
451 because it does not provide her workers’ compensation coverage under the Act.
The Act generally provides for various benefits to workers and companies
when a company obtains workers’ compensation coverage. Though Texas
encourages employers to elect coverage under the Act, most Texas employers are
not required to provide coverage. Tex. Lab. C. § 406.002; Burton v. Freescale
Semiconductor, Inc., 798 F.3d 222, 241-43 (5th Cir. 2015) (citing Wingfoot
Enterprises v. Alvarado, 111 S.W.3d 134, 142 (Tex. 2003)). Those who carry
workers’ compensation coverage are called “subscribers,” and those who do not are
called “non-subscribers.” See generally, Tex. Mexican Ry. Co. v. Bouchet, 963
S.W.2d 52 (Tex. 1998).
Section 451 of the Act forbids retaliation against employees for filing a
workers’ compensation claim. It provides, in relevant part:
A person may not discharge or in any other manner discriminate against
an employee because the employee has … filed a workers’
compensation claim in good faith ….
Tex. Lab. C. § 405.001(1). The Texas Supreme Court determined in Bouchet that
the Act’s anti-retaliation provision does not apply to non-subscribers. 963 S.W.2d at
56. The court concluded that the word “person” in Section 451 means “subscriber”
7
because the anti-retaliation provision was intended to protect individuals who bring
workers’ compensation claims. And “there can be no doubt that only employees of
subscribers to the Act can bring workers’ compensation claims … [and, thus] only
subscribers can be subject to [Section 451] claims.”2 Id. (emphasis added).
Workers cannot bring Section 451 claims against workers’ compensation non-
subscribers,3 and according to the Fifth Circuit in Burton v. Freescale
Semiconductor, Inc., that conclusion is the same if a company is a non-subscriber as
to all workers (as in Bouchet) or if the company is a non-subscriber as to the plaintiff
(as here and in Burton). 798 F.3d 222, 241-43 (5th Cir. 2015). Indeed, logic dictates
that an entity without an interest in the workers’ compensation claim has no incentive
to retaliate against someone for filing a claim. “Forbidding retaliation against an
employee for seeking monetary benefits under the [Act] presupposes that the
employer provides the employee’s workers’ compensation benefits and therefore has
some stake in the claim.” Id. at 241 (citing Bouchet, 963 S.W.2d at 56 and City of
LaPorte v. Barfield, 898 S.W.2d 288, 293 (Tex. 1995)).
Burton’s analysis of Texas Supreme Court precedent is compelling. There, a
staffing company, Manpower, employed plaintiff and temporarily assigned her to
2
963 S.W.2d at 56-57. Bouchet analyzed the language of Tex. Rev. Civ. Stat. art. 8307c, which
was later re-codified as Section 451. The court found that the same result would be reached under
Section 451.
3
See also Nanez v. Swift Transportation Corp., No. EP-07-CV-361-PRM, 2009 WL 10700191, at
*3 (W.D. Tex. June 5, 2009) (dismissing plaintiff’s Section 451 claim against non-subscriber).
8
Freescale. Id. at 225. Like Aerotek, Ramirez, and Schneider Electric here,
Manpower provided workers’ compensation coverage to plaintiff and other
temporary workers, and Freescale provided such coverage to its permanent
employees. Id. at 242. Following a workplace injury, plaintiff filed a workers’
compensation claim with Manpower; her assignment to Freescale ended soon after.
Id. at 225-26. Plaintiff brought a Section 451 claim against Freescale, even though
Manpower provided her workers’ compensation coverage. The Fifth Circuit held
that plaintiff could not maintain a Section 451 claim against Freescale for several
reasons.4 Id. at 243.
First, the Fifth Circuit noted that the Texas Supreme Court has been
unequivocal that non-subscribers are not subject to Section 451 retaliation claims.
Id. at 242 (citing Bouchet, 963 S.W.2d at 56 and City of LaPorte, 898 S.W.2d at
293). Second, it found that Freescale’s provision of workers’ compensation coverage
to its permanent employees was insufficient to impose liability as to plaintiff, finding
instead that it must provide coverage to the plaintiff to be liable under Section 451.
Burton, 798 F.3d at 242. It did so by relying on rationale from Garza v. Exel
4
In analyzing the plaintiff’s Section 451 claim in Burton, the Fifth Circuit assumed that Manpower
and Freescale were “co-employers” under the Act, in part because earlier in the opinion, the Court
had found that the entities were “joint employers” under the Americans with Disabilities Act. Id.
at 242, n. 21. However, the Fifth Circuit also determined that the co-employer relationship was
irrelevant to the Section 451 claim: “since Freescale is not the ‘subscriber’ responsible for
Burton’s workers’ compensation coverage, the question of employment is beside the point.” Id.
(citing Bouchet, 963 S.W.2d at 56) (emphasis added).
9
Logistics, Inc., 161 S.W.3d 473, 476 (Tex. 2005) and its discussion of the term
“employer” in a separate section of the Act.5 Garza explained that, under the Act, it
is not enough for a company to be an “employer” generally, but that it must have an
employer-employee relationship with the plaintiff. Id. at Burton, 798 F.3d at 242.
Relying on that same reasoning, the Burton court explained that it is not enough for
a defendant to be a subscriber generally but that it is the subscriber relationship with
the plaintiff that is controlling. Burton, 798 F.3d at 242.
Finally, the Fifth Circuit found that treating a workers’ compensation
subscriber less favorably than a non-subscriber undermines the purpose and intent
of the Act. Id. at 243 (citing Wingfoot, 111 S.W.3d at 142). There can be no dispute,
for example, that if Schneider Electric did not subscribe to workers’ compensation
at all, Ramirez would have no Section 451 claim against it. Bouchet, 963 S.W.2d at
56. Therefore, imposing liability upon Schneider Electric because it provides
workers’ compensation to its permanent workforce would fly in the face of the Act’s
goal of encouraging coverage. Burton, 798 F.3d at 243 (citing Wingfoot, 111 S.W.3d
at 142).6 In the end, the Fifth Circuit determined that imposing liability on an entity
5
Garza examines a different provision of the Act, Tex. Lab. C. § 408.001, known as the exclusive
remedy provision, that—unlike Section 451—uses the terms “employer.”
6
“Under [plaintiff’s] approach, despite having no stake in [plaintiff’s] workers’ compensation
claim,” [defendant] would be subject to liability because it made the unrelated and legislatively
‘encourage[d]’ decision to provide coverage for its permanent employees.” Burton, 798 F.3d at
243 (citing Wingfoot, 111 S.W.3d at 142).
10
like Schneider Electric, was “purposeless and cuts against ‘the Act’s decided bias in
favor of employers electing to provide coverage for their employees.’” Id.
Like Burton, this Court should find that an entity must provide workers’
compensation coverage to the plaintiff to be liable to her under Section 451. Nothing
in Section 451, nor any Supreme Court precedent interpreting the statute, suggests
otherwise. Therefore, the trial court erred in denying Schneider Electric’s Motion
for Summary Judgment. The trial court’s decision should be reversed, and judgment
rendered in Schneider Electric’s favor, dismissing Ramirez’s Section 451 claim with
prejudice.
11
CONCLUSION AND PRAYER
Schneider Electric respectfully requests that the Court reverse the trial court’s
denial of Schneider Electric’s Motion for Summary Judgment and render judgment
for Schneider Electric, dismissing Ramirez’s Section 451 claim against Schneider
Electric with prejudice. Schneider Electric further requests any other relief to which
it may be entitled.
12
APPENDIX
Tab 1: Amended Order on Motions for Summary Judgment and Order
Granting Schneider Electric’s Motion for Permission to Appeal
signed on August 10, 2021
Tab 2: Defendant Schneider Electric USA, Inc.’s Electric’s Motion for
Summary Judgment filed September 4, 2020 (“Schneider Electric’s
Summary Judgment Motion”)
Tab 2A: Excerpts of the February 28, 2020 Deposition of Maria Ramirez
(Ex. A to Schneider Electric’s Summary Judgment Motion)
Tab 2B: Declaration of Jason Volker, Director of Financial Operations for
Aerotek, signed September 2, 2020
(Ex. B to Schneider Electric’s Summary Judgment Motion)
Tab 2C: Declaration of Ben Diaz, Human Resources Manager for Schneider
Electric, signed August 25, 2020
(Ex. C to Schneider Electric’s Summary Judgment Motion)
Tab 3: Plaintiff’s Response to Defendant Schneider Electric USA, Inc.’s
Motion for Summary Judgment filed November 30, 2020 (excluding
exhibits)
Tab 4: Schneider Electric’s Reply in Support of its Motion for Summary
Judgment filed December 1, 2020
13
Dated: November 2, 2021 Respectfully submitted,
/s/ Andrew M. Gould
Andrew M. Gould
Texas State Bar No. 00792541
andrew.gould@wickphillips.com
Molly M. Jones
Texas State Bar No. 24100271
molly.jones@wickphillips.com
Dana M. Hilzendager
Texas State Bar No. 24106099
dana.hilzendager@wickphillips.com
WICK PHILLIPS GOULD & MARTIN,
LLP
3131 McKinney Avenue, Suite 500
Dallas, Texas 75204
Telephone: 214.692.6200
Facsimile: 214.692.6255
and
Noemi Lopez
Texas State Bar No. 24078881
nlopez@raylaw.com
RAY, PEÑA, MCCHRISTIAN, PC
5822 Cromo Drive
El Paso, Texas 79912
Telephone: 915.832.7243
Facsimile: 915.832.7333
ATTORNEY FOR APPELLANT
SCHNEIDER ELECTRIC USA, INC.
d/b/a SCHNEIDER ELECTRIC
14
CERTIFICATE OF SERVICE
I hereby certify that on November 2, 2021 a true and correct copy of this brief,
including any and all attachments, was served via electronic service through
eFile.TXCourts.gov on all parties through counsel of record, listed below:
Enrique Chavez, Jr. Christine E. Reinhard
enriquechavezjr@chavezlawpc.com creinhard@sr-llp.com
Michael R. Anderson Dylan A. Farmer
manderson@chavezlawpc.com dfarmer@sr-llp.com
Christine A. Chavez SCHMOYER REINHARD LLP
cachavez@chavezlawpc.com 8000 IH 10 West, Suite 1600
CHAVEZ LAW FIRM San Antonio, Texas 78230
2101 Stanton Street Telephone: 210.447.8033
El Paso, Texas 79902 Facsimile: 210.447.8036
Telephone: 915.351.7772
Facsimile: 915.351.7773
ATTORNEYS FOR APPELLEE ATTORNEYS FOR DEFENDANT
MARIA RAMIREZ (TRIAL COURT)
AEROTEK, INC.
/s/Andrew M. Gould
Andrew M. Gould
15
CERTIFICATE OF COMPLIANCE
I hereby certify that the foregoing response is in compliance with Texas Rule
of Appellate Procedure 9.4(i)(B) because it contains 1,880 words and has been
prepared in a proportionally spaced typeface using Microsoft Word in 14-point
Times New Roman font for text and 12-point Times New Roman for footnotes,
which meets the typeface requirements.
/s/Andrew M. Gould
Andrew M. Gould
16
Tab 1:
El Paso County - 327th District Court Filed 8/12/2021 10:07 AM
Norma Favela Barceleau
District Clerk
El Paso County
2019DCV3145
IN THE 327TH DISTRICT COURT
EL PASO COUNTY, TEXAS
MARIA RAMIREZ, §
§
Plaintiff, §
v. § Cause No. 2019DCV3145
§
AEROTEK, INC. and SCHNEIDER §
ELECTRIC USA, INC. d/b/a §
SCHNEIDER ELECTRIC, §
§
Defendants. §
AMENDED ORDER ON MOTIONS FOR SUMMARY JUDGMENT AND ORDER
GRANTING SCHNEIDER ELECTRIC'S MOTION FOR PERMISSION TO APPEAL
A. ORDER ON DEFENDANTS' MOTIONS FOR SUMMARY JUDGEMENT
On December 1, 2020, the Court heard arguments on Defendant Schneider Electric USA,
Inc. 's Motion for Summary Judgment ("Schneider Electric 's Motion"). On April 8, 2021, the
Court heard arguments on Defendant Aerotek, Inc. 's Traditional & No Evidence Motion for
Summary Judgment ("Aerotek's Motion"). After considering the motions, Plaintiff's responses,
the evidence submitted by the parties, the arguments of counsel, and the relevant case law, the
Court is of the opinion that (I) Schneider Electric's Motion should be DENIED, and (2)
Aerotek's Motion should be GRANTED in its entirety.
It is, therefore, ORDERED, ADJUDGED, and DECREED as follows:
I. Schneider Electric's Motion is DENIED, and it can be liable to Plaintiff under Tex.
Lab. C. § 451.001 ("Chapter 451 ").
2. Aerotek's Motion is GRANTED and Plaintiff's claim for workers' compensation
retaliation under Chapter 451 - the only claim pending against Aerotek before this
Order - Page 1
1035
Court - is hereby fully and finally DISMISSED from this lawsuit WITH
PREJUDICE.
3. Aerotek is awarded and may recover its taxable costs of court as allowed by law.
This judgment for Aerotek does not affect Plaintiff's claim and causes of action against
Schneider Electric, which remain pending before the Court under this cause number.
B. ORDER ON SCHNEIDER ELECTRIC'S MOTION FOR PERMISSION TO
APPEAL ORDER DENYING MOTION FOR SUMMARY JUDGMENT AND FOR
AMENDMENT OF ORDER
On August 4, 2021, the Court considered Defendant Schneider Electric' s Motion for
Permission to Appeal Order Denying Motion for Summary Judgment (the "MSJ Order") and
for Amendment of Order (the "Permissive Appeal Motion"). After considering the
Permissive Appeal Motion, Plaintiffs Response, the arguments of counsel, as well as the
evidence before the Court, the Court hereby GRANTS the Permissive Appeal Motion
pursuant to Texas Civil Practice & Remedies Code Section 51.014(d)(2) and Texas Rule Civil
Procedure 168 and amends the MSJ Order denying Schneider Electric's Motion as follows:
The Court finds that the MSJ Order denying Schneider Electric's Motion involves a
controlling question of law as to which there is a substantial ground for difference of opinion:
whether Schneider Electric can be liable to Plaintiff for workers' compensation discrimination
pursuant to Chapter 451 since Schneider Electric did not provide Plaintiff workers'
compensation coverage but does provide workers' compensation coverage to its direct
employees. Since Plaintiff's claim against Aerotek was dismissed with prejudice, determination
of this issue governs the viability of Plaintiffs sole remaining claim. Resolution of this issue is
difficult given the absence of guiding precedent available to allow this Court and other trial
courts to effectively and efficiently determine this issue. Immediate appeal from this Court's
MSJ Order will materially advance the ultimate termination of the litigation, since determination
Order - Page 2
1036
of this issue would be dispositive of Plaintiffs claim and this case. The Parties and the judicial
system may avoid a full trial on the merits and an appeal based on the propriety of this order. See
Tex. Civ. Prac. & Rem. Code§ 51.014(d)(2); Tex. R. Civ. P. 168.
Signed this /o dayof ~2021.
Order - Page 3
1037
. .. ""
AGREED:
ls/Dylan A. Farmer ls/Andrew M Gould
Christine E. Reinhard Andrew M. Gould
Texas State Bar No. 24013389 Texas State Bar No. 00792541
creinhard@sr-llp.com andrew .gould@wickphi 11 ips.com
Dylan A. Farmer Molly M. Jones
Texas State Bar No. 24093417 Texas State Bar No. 24100271
dfarmer@sr-l lp.com molly.jones@wickphillips.com
Dana M. Hilzendager
SCHMOYER REINHARD LLP Texas State Bar No. 24106099
8000 IH 10 West, Suite 1600 dana.hi lzendager@wickphi Ilips.com
San Antonio, Texas 78230
Telephone: 210.447.8033 WICK PHILLIPS GOULD & MARTIN,
Facsimile: 210.447.8036 LLP
3131 McKinney A venue, Suite I 00
ATTORNEYS FOR DEFENDANT Dallas, Texas 75204
AEROTEK, INC. Telephone: 214.692.6200
Facsimile: 214.692.6255
ATTORNEYS FOR SCHNEIDER
ELECTRIC USA, INC.
Order - Page 4
1038
Tab 2:
El Paso County - 327th District Court Filed 9/4/2020 1 57 PM
Norma Favela Barceleau
District Clerk
El Paso County
2019DCV3145
IN THE 327TH DISTRICT COURT
EL PASO COUNTY, TEXAS
MARIA RAMIREZ, §
§
Plaintiff, §
v. § Cause No. 2019DCV3145
§
AEROTEK, INC. and SCHNEIDER §
ELECTRIC USA, INC. d/b/a §
SCHNEIDER ELECTRIC, §
§
Defendants. §
DEFENDANT SCHNEIDER ELECTRIC USA, INC.'S
MOTION FOR SUMMARY JUDGMENT
Defendant Schneider Electric USA, Inc. d/b/a Schneider Electric ("Schneider Electric")
files this Motion for Traditional Summary Judgment (the "Motion") under Tex. R. Civ. P. 166a(b)
and (i) and Local Rule 3.13 seeking dismissal of Plaintiff Maria Ramirez's ("Plaintiff's" or
"Ramirez's") lone claim against Schneider Electric for workers' compensation discrimination
claim pursuant to Tex. Lab. C. § 451.001("Section451").
I.
INTRODUCTION AND GROUND FOR SUMMARY JUDGMENT
Plaintiff Maria Ramirez was employed by Defendant Aerotek, Inc. ("Aerotek"), a staffing
company, and was assigned to provide temporary services to Schneider Electric. Her assignment
ended in April 2018. She now claims it was because she pursued workers' compensation benefits.
Because Aerotek, not Schneider Electric, provided such benefits, Plaintiff's claim against
Schneider Electric fails as a matter of law.
SCHNEIDER ELECTRIC'S MOTION FOR SUMMARY JUDGMENT - Page I
85
II.
SUMMARY JUDGMENT EVIDENCE
Schneider Electric's summary judgment evidence, which is attached to this Motion and
incorporated herein by reference as if fully set forth herein, is set forth as follows: 1
Exhibit A- Excerpts of the Feb. 28, 2020 Deposition of Maria Ramirez ("Pl. Dep.")
Exhibit B - Declaration of Jason Volker ("Volker Deel.")
Exhibit C - Declaration of Ben Diaz ("Diaz Deel.")
III.
STATEMENT OF UNDISPUTED FACTS
A. Aerotek, Not Schneider Electric, Provides Workers' Compensation Insurance To Its
Personnel.
1. Schneider Electric maintains a manufacturing facility in El Paso, Texas. Exh. C,
Diaz Deel. ii 2. To supplement its direct workforce, Schneider Electric contracts with staffing
companies, including Aerotek, a global staffing company to supply it with temporary personnel.
Id. at ii 3.
2. The workers provided by Aerotek are employed by it-not by Schneider Electric-
and Aerotek provides its employees with workers' compensation coverage. Exh. B, Volker Deel.
ii 3. Further, Aerotek's workers' compensation policy that applies to individuals working on
assignment at the Schneider Electric El Paso facility does not name Schneider Electric as an
insured. Id.
3. Schneider Electric provides workers' compensation coverage to its own direct
employees, and its coverage does not apply to temporary personnel working on assignment at its
facility employed by Aerotek. Exh. C, Diaz Deel. ii 3.
Schneider Electric respectfully requests the Court take judicial notice of all pleadings and documents that have
been filed with the Court so that those documents do not need to be attached to this Motion.
SCHNEIDER ELECTRIC'S MOTION FOR SUMMARY JUDGMENT - Page 2
86
4. In April 2018, Plaintiff sought workers' compensation benefits through her
employer, Aerotek. Exh. A, Pl. Dep. 69-70 and Pl. Dep. Ex. 3; id. at 174-75 and Pl. Dep. Ex. 12;
Exh. B, Volker Deel. ii 4.
5. Plaintiff's assignment at Schneider Electric ended as a result of her committing a
safety infraction. Exh. C, Diaz Deel. ii 4.
B. Ramirez Files Suit Against Schneider Elecbic and Aerntek
6. On August 21, 2019, Ramirez filed suit in this court against Schneider Electric and
Aerotek, claiming sex discrimination, sexual harassment and retaliation, disability discrimination
and retaliation, and workers' compensation retaliation. See Plaintiff's Original Petition and
Request for Disclosure. Schneider Electric removed the case to federal court, where the Section
451 claim was severed and remanded to this Court. The remaining claims are proceeding against
Aerotek and Schneider Electric in federal court.
IV.
ARGUMENT AND CITATION TO AUTHORITY
A. Summary Judgement Standard
Summary Judgement is proper where there is no genuine issue of material fact, and the
movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). A defendant is entitled
to summary judgment if it "conclusively negates a single essential element of a cause of action or
conclusively establishes an affirmative defense." Armendariz v. Redcats USA, L.P., 390 S.W.3d
463, 467 (Tex. App.-El Paso 2012, no pet.) (citing Frost N at. Bank v. Fernandez, 315 S.W.3d
494, 508-09 (Tex. 2010)). A no-evidence summary judgment motion must be granted where
there has been adequate time for discovery and there is no evidence to establish one or more
essential element of the claim. Tex. R. Civ. P. 166a(i).
SCHNEIDER ELECTRIC'S MOTION FOR SUMMARY JUDGMENT - Page 3
87
B. Schneider Electric Was Never Plaintiff's Workers' Compensation Insurance
Provider And, Consequently, Her Claim Fails As A Matter of Law
The threshold question for Plaintiff's Section 451 claim is whether she has evidence that
Schneider Electric is even subject to Section 451 as to her. As explained below, she does not have
such evidence, and in fact, Schneider Electric cannot be liable to her as a matter of law.
Section 451.001 forbids retaliation against employees for filing a workers' compensation
claim. According to the Texas Supreme Court, the anti-retaliation provisions of the Texas
Workers' Compensation Act (the "Act") "is intended to apply only to employees and employers
who act under the Act." Tex. Mexican Ry. Co. v. Bouchet, 963 S.W.2d 52, 56 (Tex. 1998)
(emphasis added). "Forbidding retaliation against an employee for seeking monetary benefits
under the [Act] presupposes that the employer is a subscriber."2 Id. (citing City of LaPorte v.
Barfield, 898 S.W.2d 288, 293 (Tex. 1995)). Indeed, as the Supreme Court stated, "there can be
no doubt that only employees of subscribers to the Act can bring workers' compensation claims ...
[and] only subscribers can be subject to [Section 451] claims." Bouchet, 963 S.W.2d at 56
(emphasis added). 3
Bouchet makes clear that workers cannot bring Section 451 claims against workers'
compensation non-subscribers. Id. 4 According to the Fifth Circuit m Burton v. Freescale
Semiconductor, Inc., the conclusion is the same if a company is a non-subscriber as to all workers
(as in Bouchet) or ifthe company is a non-subscriber as to the plaintiff(as here). 798 F.3d 222,
241-43 (5th Cir. 2015).
2
Not all employers in Texas are required to subscribe to workers' compensation as set forth in the Act. Tex. Lab. C.
§ 406.002. Those who do are called "subscribers," and those who do not are called "non-subscribers."
3
Bouche/ analyzed the language of Tex. Rev. Civ. Stat. art. 8307c, which was later re-codified as Section 451.001,
but the court found that the same result would be reached under Section 451. 963 S.W.2d at 56.
4
See also Nanez v. Swift Transportation Corp., No. EP-07-CV-361-PRM, 2009 WL 10700191, at *3 (W.D. Tex.
June 5, 2009) (dismissing plaintiffs Section 451 claim against a non-subscriber).
SCHNEIDER ELECTRIC'S MOTION FOR SUMMARY JUDGMENT - Page 4
88
Burton is compelling. There, a Manpower temporary employee on assignment at Freescale
brought a Section 451 claim against Freescale, even though Manpower provider her workers'
compensation coverage-an identical factual situation as here. In Burton, the Fifth Circuit relied
on Texas Supreme Court precedent to find that plaintiff could not maintain a Section 451 claim
against Freescale. Id. at 243. It reasoned, first, that the Texas Supreme Court has been unequivocal
that non-subscriber entities are not subject to Section 451 retaliation claims. Id. at 242 (citing
Bouchet, 963 S.W.2d at 56 and City ofLaPorte, 898 S.W.2d at 293). Then, relying on Garza v.
Exel Logistics, Inc., 161 S.W.3d 473, 476 (Tex. 2005), it found that it is insufficient for an entity
to be a subscriber generally to be subject to Section 451; it must be a subscriber as to the employee
at issue. Burton, 798 F.3d at 242.
Finally, the Burton court explained that treating a workers' compensation subscriber less
favorably than a non-subscriber undermines the purpose and intent of the Act. Id. at 243 (citing
Wingfoot Enterprises v. Alvarado, 111 S.W.3d 134 (Tex. 2003)). There can be no dispute, for
example, that if Schneider Electric did not subscribe to workers' compensation at all, Ramirez
would have no Section 451 claim against it. See Bouchet, 963 S. W.2d at 56. The Act's purpose is
to encourage entities to provide workers' compensation coverage. Therefore, it would fly in the
face of the statutory scheme to find that a subscriber as to its direct personnel, like Schneider
Electric, who "despite having no stake in [Ramirez's] workers' compensation claim," can be
subject to Section 451 claims, while a non-subscriber cannot. Id. at 243. That conclusion,
according to the Fifth Circuit, would defy the Texas Supreme Court decisions in Bouchet,
Wingfoot, and Garza. Id.
SCHNEIDER ELECTRIC'S MOTION FOR SUMMARY JUDGMENT - Page 5
89
v.
CONCLUSION
Schneider Electric did not provide workers' compensation benefits to Plaintiff, so her claim
for workers' compensation retaliation under Section 451 against it fails as a matter oflaw.
For the reasons set forth herein, Schneider Electric respectfully requests that this Court
enter summary judgment in its favor dismissing Ramirez's claim against Schneider Electric and
award it all other remedies to which it may be entitled.
Dated: September 4, 2020 Respectfully submitted,
l s/Andrew M. Gould
Andrew M. Gould
Texas State Bar No. 00792541
andrew.gould@wickphillips.com
Molly M. Jones
Texas State Bar No. 24100271
molly. f ones@w i ckphi lli ps. com
Dana M. Hilzendager
Texas State Bar No. 24106099
dana. hilzendager@wi ckphilli ps. com
WICK PHILLIPS GOULD & MARTIN, LLP
3131 McKinney Avenue, Suite 100
Dallas, Texas 75204
Telephone: 214.692.6200
Facsimile: 214.692.6255
ATTORNEYS FOR SCHNEIDER
ELECTRIC USA, INC.
SCHNEIDER ELECTRIC'S MOTION FOR SUMMARY JUDGMENT - Page 6
90
CERTIFICATE OF SERVICE
Pursuant to the Texas Rules of Civil Procedure, the undersigned attorney of record certifies
that a copy of the foregoing instrument was served upon all counsel of record via the court's
electronic filing system on September 4, 2020.
ls/Andrew M. Gould
Andrew M. Gould
SCHNEIDER ELECTRIC'S MOTION FOR SUMMARY JUDGMENT - Page 7
91
Tab 2A:
EXHIBIT A
92
Maria Ramirez - February 28 , 2020
Page 1
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVI SI ON
MARIA RAMIREZ ,
PLAINTIFF ,
vs . CIVIL ACTION
NO . 3 :1 9- cv - 28 3
AEROTEK , INC., and
SCHNEIDER ELECTRIC USA ,
INC ., d/b/a SCHNEIDER
ELECTRIC ,
DEFENDANTS .
ORAL AND VIDEOTAPED DEPOSITION OF
MARIA RAM I REZ
FE BRUARY 28 , 2020
ORAL AND VIDE OTAPED DEPOSITION OF MARIA RAMIREZ ,
p roduced as a wit ness a t t he i ns t ance of DEFE NDANT
AEROTEK , and du l y sworn , was taken in the above - styled
and numbered c ause on the 28th of February , 2020 , from
9 : 41 a . m. t o 5 : 39 p . m., at the o f fice s o f ACR I nk , LLC ,
22 1 N. Kansas , Su i te 505 , pursuant to the Federal Rules
o f Civil Procedure .
Reported By :
Me l ody C . Jo i ner , CSR
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Maria Ramirez - February 28 , 2020
Page 2
1 APPEARANCES
2 FOR THE PLAINTIFF :
3 Mr . Michael Anderson
CHAVEZ LAW FIRM
4 2101 N. Stanton Street
El Pas o , Texas 79902
5
FOR DEFENDANT AEROTEK:
6
Ms . Christine E . Reinhard
7 SCHMOYER REINHARD , LLP
17806 IH 10 West , Suite 400
8 San Anton i o Texas 78257
9 FOR DEFENDANT SCHNEIDER ELECTRIC :
10 Ms . Molly M. Jones
Mr . Andrew Gould
11 WI CK PHILLIPS GOULD & MARTIN, LLP
3131 McKinney Ave ., Suite 1 00
12 Dallas Texas 75204
13 ALSO PRESENT :
14 Mr . Ben Diaz
Mr . Roger Navarro , Video Technician
15
16
17
18
19
20
21
22
23
24
25
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Mar i a Ramire z February 28 , 2020
19 (Pages 67 to 70)
Page 67 Page 69
1 know, just in general conversation. 1 A. No, ma'am.
2 Q. Did this -- did you sign this document on the 2 Q. Have you told me every conversation you can
3 same day you had the interview? 3 recall about the three-month probationary period you
4 A. Yes. 4 contend Mr. Antuna discussed with you?
5 Q. Did you sign it immediately after you could go 5 A. I don't understand the question.
6 from the interview and into -- 6 Q. Have you told me about every conversation you
7 A. Yeah, because it was like, I need you 7 can recall about that three-month probationary period?
8 yesterday. That's how bad they needed people. And it 8 A. That was it. That -- Mr. Antuna was the one
9 was like, NJ soon as you leave here, go -- I don't know 9 that extended the three-month probationary period.
10 if it was the same day or the next day -- Go sign 10 Q. But you weren't employed by Schneider Electric,
11 paperwork, I need -- they need to run a criminal 11 correct?
12 background, blah, blah, blah, urine, dab, dab, dab, dab, 12 l.VIR. ANDERSON: Objection, calls for legal
13 dah. 13 conclusion.
14 Q. So it was close in time, is the point? 14 Q. (BYMS. JONES) You can answer. You can
15 A. Yes. 15 answer.
16 Q. Before you started working on assignment at 16 A. I was with Aerotek. I went in through Aerotek.
17 Schneider, other than Mr. Antuna, did you discuss the 17 (Exhibit 3 marked.)
18 three-month probationary period with anyone? 18 Q. (BY MS. JONES) Handing you what's been marked
19 A. Yes. Like I said, just in general conversation 19 Exhibit 3. Do you recognize this document?
20 with other employees. You know, it's like, So how long 20 A. Yes.
21 did you have to stay with the temporary service in order 21 Q. Did you sign it with your electric sig- --
22 to get hired on? Some people would say three months. 22 electronic signature on October 27th, 2017?
23 Some people would say four months. Some people would 23 A. Yes.
24 say a year. Some people would say, I have never gotten 24 Q. And did you read it before you signed it?
25 hired with Schneider. And then some people would say, 25 A. I probably didn't. I just went through the
Pa ge 68 Page 70
1 Oh, yeah, I got hired right away. 1 paperwork as it was being -- it's like, Sign this, sign
2 So it was -- it was just a general 2 that; you need to sign this. I know that I was signing
3 conversation with just -- 3 something on workmen's comp.
4 Q. So it sounds like the feedback you got from 4 Q. And I think we discover -- discussed this
5 other employees is that it varied? 5 before, but you understood that Aerotek was going to be
6 A. It varied -- 6 providing you workers' comp coverage; is that right?
7 Q. It wasn't this three-month -- 7 A. That's what they told me when I got hurt at
8 A. -- yeah, exactly. It was -- it was -- it 8 Schneider.
9 varied. There was employees there that had been 9 Q. Did you have an understanding about workers'
10 employed with Schneider for over --with Aerotek with 10 comp coverage when you started your employment at
11 over like two years. And I'm like, Seriously? It's 11 Aerotek?
12 like, Yeah. And so it was -- 12 A. No.
13 Q. Do you remember -- 13 Q. Did anyone ever tell you that Schneider
14 A . It was information I needed to know. 14 Electric would be providing you with workers'
15 Q. Is that before you started working on 15 compensation coverage?
16 assignment or during your assignment at Schneider? 16 A. Nobody ever told me about workmen's comp
17 A. Oh, no. That was in my assignment. 17 because I've never used it.
18 Q. Do you remember the names of any of those 18 Q. Never used it until the Schneider Electric --
19 individuals you discussed this hiring issue with? 19 A. Correct.
2O A. No, ma'am. I just -- it's just in general 20 Q. -- Aerotekinci dent?
21 conversation that you have with employees when you're 21 A. I've never used this. I've always -- ifl --
22 interested in a position. 22 if I need insurance, I went to the doctor with my health
23 Q. Other than Mr. Antuna, did you have a 23 insurance.
24 conversation with any Schneider Electric managers or 24 Q. But this document is notifying you that Aerotek
25 supervisors about this three-month probationary period? 25 is providing you with workers' compensation coverage, is
_I
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Mar i a Ramire z February 28 , 2020
45 (Pages 171 to 174)
Pa ge 1 7 1 Pa ge 1 73
1 Mr. -- Dr. Garcia? 1 Q. To turn in paperwork. So that's correct, what
2 A. Yes. Yes, ma'am, because she referred me to 2 I just relayed?
3 him. 3 A. (Moving head up and down).
4 Q. And in number 13, do you see which box is 4 Q. When you see her the first time, how long were
5 checked? Will allow employee to return to work with 5 you there talking to her?
6 restrictions identified in Part III, do you see that? 6 A. I don't remember how long we were there. I
7 A. Yes, ma'am. 7 just needed to report the incident, and she told me the
8 Q. So you told me a second ago that you were kept 8 doctor I needed to go see, and according to whatever the
9 off of work, but this appears to allow you to work with 9 doctor said, to come back and give the excuse if I was
10 the restrictions in Part III, doesn't it? 10 going to be able to come back to work.
11 A. Correct. But she didn't let me come back to 11 Q. Was that a long meeting?
12 work. 12 A. No.
13 Q. Who didn't let you come back to work? 13 Q. Did you discuss harassment at that meeting?
14 A. Ms. Flores. She told me, Just go home and rest 14 A. I didn't discuss anything with her. She just
15 your arm. And go see the other doctor, Dr. Klein. 15 sent me to get my arm checked. It was, like, bad.
16 Because they had referred me to Dr. Klein. So goes, 16 Q. And then when you came back, did you go
17 Don't come back to work till I call you and let you know 17 directly from the doctor's office back to Schneider
18 when you can return to work. And I said, Okay. 18 Electric?
19 Q. Did you want to come back to work? 19 A. Uh-huh.
20 A. Yes, ma'am, I did. 20 Q. And how long was that meeting?
21 Q. Did you ask to come back to work? 21 A. I don't know. Probably an hour.
22 A. Yes, ma'am. 22 Q. And what did -- what happened in that meeting?
23 Q. On Ap- -- April 9th, 2018 -- 23 A. I just told her that I needed to come back to
24 A. Yeah. 24 work with restrictions. And she said that she couldn't
25 Q. -- you asked to come back to work? 25 allow me to come back to work with restrictions because
Page 1 7 2 Page 1 7 4
1 A. Because I thought I was going to come back and 1 there was nothing for me to do. Just to go back home
2 do some light duty. 2 until she called me back.
3 Q. You weren't scheduled to work on April 9th, 3 Q. Why did you tell her on Monday that you needed
4 were you? 4 to come back with restrictions when you would have three
5 A. I don't know what day that falls under. 5 more days before you'd even be scheduled to go back?
6 Q. If I told you that -- 6 A. It was the paperwork I needed to tum in.
7 A. Monday. 7 Q. I understand to tum in the paperwork. But why
8 Q. -- the 9th was a Monday, you're not scheduled 8 did you tell her on Monday, I need to come back to work
9 to work-- 9 with restrictions, when you have until Friday when
10 A. No. 10 you're even scheduled? You don't know how you're going
11 Q. -- on Monday, correct? 11 to be feeling. You don't know how the day is going to
12 Did you talk to Ms. Flores after this 12 progress.
13 appointment -- 13 A. I was just following orders and -- I'm just
14 A . Yes. 14 following my doctor's orders. When I got out of
15 Q. -- on April 9th? 15 doctor's, I went back to her office and I gave her her
16 A. Yes. 16 paperwork.
17 Q. What did -- did you talk to her on the phone or 17 Q. You gave her the -- the form that we're --
18 in person? 18 marked as Exhibit 11?
19 A. In person, because I needed to turn in 19 A. Yes.
20 paperwork. 20 (Exhibit 12 marked.)
21 Q. So let me make sure I got this right. You go 21 Q. (BY MS. JONES) Handing you what I've marked as
22 to Schneider Electric to see Ms. Flores, and then you go 22 Exhibit 12. Does this document look familiar?
23 to the doctor, and then you go back to Schneider 23 A. Yes.
24 Electric to see Ms. Flores? 24 Q. Did you complete this document?
25 A. Yes, to turn in paperwork. 25 A. Yes.
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Mar i a Ramire z February 2 8 , 2 020
46 (Pages 175 to 178)
Page 1 75 Pa ge 1 77
1 Q. Is this your handwriting? 1 you that--
2 A. Yes. 2 A. Yes.
3 Q. That's your signature at the bottom? 3 Q. -- in Exhibit 11?
4 A. Yes, ma'am. 4 And you said you told Esther that you want
5 Q. You filled this -- all the information out in 5 to come back to work, right?
6 here, right? 6 A. Yes, I didn't mind coming back to work.
7 A. Yeah, it looks like my writing, my awful 7 Q. So why did you write, No work till release from
8 writing. 8 Dr. Klein?
9 Q. Did you fill this out before or after your 9 A. Because thafs what they told me to put.
10 doctors appointment with -- 10 Q. Who's "they"?
11 A. Incident Information. Date, injury, 4/7 . 11 A. Ifl'm -- ifl'm restricted to come from work
12 Q. So we justlooked at a form in Exhibit 11 from 12 till I got released from Dr. Klein. And Dr. Klein -- I
13 when you went to the doctor. 13 was barely going to go see Dr. Klein. It's -- this is
14 A. Okay. 14 like before -- this is -- this is just like a doctor
15 Q. And that was on April 9th? 15 they send you to see if you're okay. And once the
16 A. Yes. 16 doctor says you're not okay, then this doctor refers you
17 Q. And this form is also dated April 9th? 17 to this doctor. And she told me, Don't come back to
18 A. Yes. 18 work until Dr. Klein releases you.
19 Q. So the question is, did you fill out this form, 19 Q. Are you saying Esther F1ores told you to write
20 Exhibit 12, after you wentto the doctor, as 20 that?
21 exhibited -- as shown in Exhibit 11? 21 A. Yes. That's --that'swhatthatis.
22 A. I don't know when I filled this out, because 22 Q. And you didn't write on here, I want -- that
23 it's -- it says one date on the 7th, and then one date 23 you wanted to come back to work with light duty?
24 on the 9th. 24 A. She told me I couldn't come back to work.
25 Q. It says, Date injury occurred, 417/2018. 25 Q. If you look up in the middle of the form , it
Pa ge 176 Page 1 78
1 A. Okay. 1 says, Have you had the same or similar injury before?
2 Q. Do you see that? 2 And you say , No, perfect bill of health. Is that right?
3 A. Yes. 3 A. Yes.
4 Q. And then date -- I take that to be date of the 4 Q. Is that accurate?
5 form -- that you completed the form on the 9th? 5 A. Yes.
6 A. Okay. 6 Q. And it asks you who you reported the incident
7 Q. Does that seem like it makes sense to you? 7 to, and you said Jesus Estrada, Cesar Hernandez and
8 A. Yes, ma'am. 8 Raphael. Who's Rafael?
9 Q. And if you look at the bottom part, right above 9 A. The nurse.
10 your signature, it says, No work till release from 10 Q. Who does Rafael work for?
11 Dr. Klein. 11 A. Schneider.
12 Do you see that? 12 Q. When did you see Rafael -- or when did you
13 A. Yes, ma'am. 13 communicate with Rafael?
14 Q. Did you write that? 14 A. On the day I reported this incident. I think
15 A. Yeah. Because that's -- I think thafs what 15 it was on the 8th.
16 they told me to do. 16 Q. What did you say to Rafael?
17 Q. What who told you to do? 17 A. The same thing, that I got hurt on the job and
18 A. I couldn't come back to work because I needed 18 I needed to report it.
19 to be released from the doctor. 19 Q. What did Rafael tell you?
20 Q. But you were released from the doctor in 20 A. He told me to see Esther. And Esther sent me
21 Exhibit 11, correct? 21 to the doctor.
22 A. But this is not the same doctor. This is 22 Q. But Esther wasn't there on the 8th, right?
23 another doctor. 23 A. No, I don't think she was. No.
24 Q. I understand. This doctor is telling you 24 Q. Did you talk to Cesar Hernandez on the 8th?
25 you're able to work with restrictions. Didn't he tell 25 A. That's the guy that I told her I reported this
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97
Maria Ramirez - February 28, 2020
Page 275
1 C E R T I F I C A T E
2
3 STATE OF TEXAS
4 COUNTY OF EL PASO
5
6 I, Melody c. Joiner, Certified Shorthand
7 Reporter in and for the State of Texas, hereby certify
B that this transcript is a true record of the testimony
9 given in said proceedings, and that said transcription
10 is done to the best of my ability.
11 Given under my hand and seal of office on this
12 16th day of March, 2019.
13
14
15
~\~~~
16
17 _iLlAJ
c.~n~r-~
Me lody """""""'
18 Certified Shorf+iand Reporter
Of the State of Texas
19 Certification number 5525
Date of expiration of
20 certification: 10/31/22
Firm Registration # 11613
21
22
23
24
25
ph. 915.542.3422 ACR Ink, LLC schedule@acr-ink.com
98
"
Aerotek
Notice 6: NOTICE TO EMPLOYEES CONCERNING WORKERS' COMPENSATION IN TEXAS
[Texas Workers' Compensation Rule 110.101(e)(1)]
COVERAGE: Aerotek, Inc has workers' compensation insurance coverage from ESIS/lndemnity Insurance Company of
North America in the event of work-related injury or occupational disease. This coverage is effective from 11/30/15. Any
injuries or occupational diseases which occur on or after that date will be handled by ESIS/lndemnlty Insurance Company
of North America. An employee or a person acting on the employee's behalf, must notify the employer of an injury or
occupational disease not later than the 30th day after the date on which the injury occurs or the date the employee knew or
should have known of an occupational disease, unless the Texas Department of Insurance, Division of Workers'
Compensation (Division) determines that good cause existed for failure to provide timely notice. Your employer is required
to provide you with coverage information, in writing, when you are hired or whenever the employer becomes, or ceases to
be, covered by workers' compensation insurance.
EMPLOYEE ASSISTANCE: The Division provides free information about how to file a workers' compensation claim.
Division staff will answer any questions you may have about workers' compensation and process any requests for dispute
resolution of a claim. You can obtain this assistance by contacting your local Division field office or by calling 1-800-252-
7031. The Office of Injured Employee Counsel (OIEC) also provides free assistance to injured employees and will explain
your rights and responsibilities under the Workers' Compensation Act. You can obtain OIEC's assistance by contacting an
OIEC customer service representative in your local Division field office or by calling 1-866-EZE·OIEC (1-866-393-6432).
SAFETY VIOLATIONS HOTLINE: The Division has a 24 hour toll-free telephone number for reporting unsafe
conditions in the workplace that may violate occupational health and safety laws. Employers are prohibited by law from
suspending, terminating, or discriminating against any employee because he or she in good faith reports an alleged
occupational health or safety violation. Contact the Division at 1-800-452-9595.
NOTICE TO NEW EMPLOYEES "You may elect to retain your common law right of action if, no later than five days
after you begin employment or within five days after receiving written notice from the employer that the employer has
obtained workers' compensation insurance coverage, you notify your employer in writing that you wish to retain your
common law r ight to recover damages for personal injury. If you elect to retain your common law right of action, you cannot
obtain workers' compensation income or medical benefits if you are injured." Please sign below to confirm that you have
been notified and understand the contents of this notification.
Maria L Ramirez (Electronic Signature)
Employee's Signature
Maria L Ramirez
Employee's Name
10/26/2017
Date Signed
,
___, I
D·MR-000048
AG Onbouding • 0000986800991955 -Generated: 11/30/2017 11 ·21 AM
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Employee Incident Report
Each employee is required to complete this form after experiencing an unintentional worlc related injury. Thit furm is used as official
documentation thet lllJl on-the job injmy has occum:d. Please be as specific as possible when completing. Please use Che back of the paper if
uccded.PLEASBPRJNTCLEARLY
Em lo ee Information:
Bmployee Nao: Home Telephams
Number. '/ IJ'"-JOI ~
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wit,hfrarJdu!ntj.ptc!llwitbhQtd 01.wial ikct or make a&Ise llalmlent on this ptlll}' ~ f01111 ~ anla-1o abblill Wl>rbn' tompriml!ionben.&tt. Additi111ially1
t uridl!llrtlind tluit A)legi!J .0Jo"!!P requ~ that I keep th!!in apprised ofillY mtiilicallwOTt•tJtus at all tfm~· I fUrther tmderstaiJ4 that Aerotolc Will Ir)' to offi:r
lmnsilionilt duty anigmn1111b t.O employee$ based Oil p~clribed medii:al l.imifllti.Dllll resullillg .ftvili job !dated ill.juries wbmever p~siibl~. I agieo to.C:O!lllCtmy
Atrotek: offico tD ~y1¥itb ~n:qiiat ·
Revised 5-2015
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I Ramirez 000077
100
Tab 2B:
EXHIBITB
101
dotloop s ignature verification: dtlp.us/g60X.eJ09·PdLc
IN THE 327TH DISTRICT COURT
EL PASO COUNTY, TEXAS
MARIA RAMIREZ, §
§
Plaintiff, §
v. § Cause No. 2019DCV3145
§
AEROTEK, INC. and SCHNEIDER §
ELECTRIC USA, INC. d/b/a §
SCHNEIDER ELECTRIC, §
§
Defendants. §
DECLARATION OF JASON VOLKER
1. My name is Jason Andrew Volker, and my address is 15 Silktree Court,
Catonsville, MD 21228. I am over 18 years old, and I am competent to make this declaration.
The facts in this declaration are based on my personal knowledge.
2. Aerotek, Inc. is a global staffing company, and it provides temporary contract
workers to Schneider Electric at its manufacturing facility in El Paso, Texas. I am currently the
Director of Financial Operations for Aerotek, and I have held that position since March 1, 2015.
3. Workers provided by Aerotek to Schneider Electric are employed by Aerotek, and
Aerotek provides its employees with workers' compensation coverage. The workers'
compensation policy that covers Aerotek' s employees working on assignment at the Schneider
Electric El Paso facility does not name Schneider Electric as an insured.
4. Maria Ramirez, an Aerotek employee, worked on assignment at Schneider
Electric's El Paso facility for less than six months in 2017-2018. Ms. Ramirez made a workers'
compensation claim under Aerotek's policy in 2018.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on this 2nd day of September, 2020.
d ot loo p verifi ed
09/02/20 10:04 AM EDT
FZ21·4Y09-RCKR-PUGW
JASON ANDREW VOLKER
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Tab 2C:
EXHIBIT C
103
IN THE 327TH DISTRICT COURT
EL PASO COUNTY, TEXAS
MARIA RAMIREZ, §
§
Plaintiff, §
v. § Cause No. 2019DCV3145
§
AEROTEK, INC. and SCHNEIDER §
ELECTRIC USA, INC. d/b/a §
SCHNEIDER ELECTRIC, §
§
Defendants. §
DECLARATION OF BEN DIAZ
1. My name is Ben Diaz. I am over 18 years old, and I am competent to make this
declaration. The facts in this declaration are true and correct and are based on my personal
knowledge. I am making this declaration under the penalty of perjury.
2. Schneider Electric maintains a manufacturing facility in El Paso, Texas. I am the
Human Resources Manager at Schneider Electric's El Paso facility, a position I have held since
February 2018.
3. To supplement its direct workforce, Schneider Electric contracts with staffing
companies, including Aerotek, a global staffing company, to supply it with temporary personnel.
The workers provided by Aerotek are employed by it-not by Schneider Electric-and Aerotek
provides its employees with workers' compensation coverage. Schneider Electric provides
workers' compensation coverage to its own direct employees. Its coverage does not apply to
temporary personnel working on assignment at its facility employed by Aerotek.
4. Aerotek assigned Maria Ramirez to work at Schneider Electric's El Paso facility
for a short period in 2017-2018. Her assignment at Schneider Electric ended as a result of her
committing a safety infraction. Because she was an Aerotek employee, Schneider Electric never
provided workers' compensation coverage to Ms. Ramirez.
My name is Ben David Diaz, my date of birth is January 26, 1981, and my business address is
1601 Northwestern Drive, El Paso, Texas, 79912, United States. I declare under penalty of
perjury that the foregoing is true and correct.
Executed in El Paso County, State of Texas, on the 5:f
'"/ <)f- ""
A~, 2020.
BEN DIAZ ~
104
Tab 3:
El Paso County - 327th District Court Filed 11/30/2020 311 PM
Norma Favela Barceleau
District Clerk
El Paso County
2019DCV3145
IN THE 327TH WDICIAL DISTRICT COURT
EL PASO COUNTY, TEXAS
MARIA L. RAMIREZ,
Plaintiff,
v. Cause No. 2019-DCV-3145
AEROTEK, INC., and SCHNEIDER ELECTRIC USA, INC.
dba SCHNEIDER ELECTRIC,
Defendants.
PLAINTIFF'S RESPONSE TO
DEFENDANT SCHNEIDER ELECTRIC USA INC.'S l\10TION FOR SUMMARY
TUDGMENT
"
TO THE HONORABLE COURT:
Plaintiff Maria Ramirez ("Plaintiff" or "Employee Ramirez") now files this Response to
"Defendant Schneider Electric USA, Inc.'s Motion For Summary Judgment" ("Motion") filed by
Defendant Schneider Electric USA, Inc. d/b/a Schneider Electric ("Defendant" or "Employer
Schneider"), and shows the Court as follows:
I. BOTTOMLINE AUTHORITY
Under Texas' black letter law, specifically Texas Labor Code, Section 91.042(c), a staffing
agency and its client company arc "cocmploycrs" when either the staffing agency or the client
company has a workers' compensation insurance policy covering the staffing agency's employee
leased to the client company, and both the staffing agency and the client company are
liable to the employee under Texas workers' compensation laws:
For wmkcrs' compensation insurance purposes, a license holder and the license holder's
client shall be cocmploycrs. If either a license holder or a client elects to obtain workers'
compensation insurance coverage for covered employees, the client and the license holder
arc subject to Sections 406.005, 406.034, 408.001, and 411.032.
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Texas Labor Code §91.042(c); Texas Labor Code §91.001(11) ("'License holder' means a person
licensed under this chapter to provide professional employer services."); Brown v. Aztec R~g
Equipment, Inc., 921 S.vV.2d B35 (Tex. App. - Houston [14th] 1996) (holding that for wmkcrs'
compensation purposes, a staffing agency and its client company arc co-employers, and the
staffing agency's wmkcrs' compensation insurance policy covers the client company).
IL LEGAL STANDARD.
A. NO-EVIDEKCE MOTIOK FOR SUM~L\RY jUDGMEKT.
In Texas, summa1y judgments arc disfavored as a means of resolving cases. Ca.1.10 v. Brand,
776 S.vV.2d 551, 556 (Tex. 1989). Prior to a no-evidence motion for summary judgment being
filed, there must be an "adequate time for discovc1y." Tex. R. Civ. P. l 66a(i). This "adequate time
for discovc1y" standard applies only to no-evidence motions for summary judgment. Tex. R. Civ.
P. l 66a(a)-(b), (i). Texas Ruic of Civil Procedure l 66a(i) provides that after adequate time for
cliscovcry; tl1c movar1t, \vitl1out 1)rcscr1tir1g summary juclgmcr1t cviclcr1cc may move for summary
judgment on the ground that there is no evidence of one or more essential clements of a claim or
defense on which an adverse party would have the burden of proof at trial. Tex. R. Civ. P.
l 66a(i).
In order to defeat a no-evidence motion for summary judgment, the non-movant must
present some evidence raising a genuine issue of material fact supporting each clement contested
in the motion. Tex. R. Civ. P. 166a(i); Alack Ti·uck.1, Inc. v. Tamaz, 206 S.vV.3d 572, 5Bl-B2 (Tex.
2006). In presenting its evidence, the nonmovant is not required to marshal its proof; its response
need only point out evidence that raises a fact issue on the challenged clements. Tex. R. Civ. P.
166a cmt. -1997; accord]olzn.rnn v. Brewer & Pritchard, PC., 73 S.vV.3d 193, 207 (Tex. 2002). The
nonmovant raises a genuine issue of material fact by producing "more than a scintilla of
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evidence" establishing the challenged clements' existence and may use both direct and
circumstantial evidence in doing so. Ford ivlotor Co. v. Rid,gwry, 135 S.vV.3d 598, 600-60 I. More
than a scintilla exists when the evidence is such that it "would enable reasonable and fair-minded
people to differ in their conclusions." Id. at 601 (quoting ivlerrell Dow Pharm., Inc. v. Havner, 953
S.vV.2d 706, 711 (Tex. 1997)). If the nonmovant's evidence provides a basis for conflicting
inferences, a fact issue arises. Randall v. Dall. Power & L~glzt Co., 752 S.vV.2d 4, 5 (Tex. 1988) ~)Cr
curiam). l\·1orcovc1; there is a presumption that evidence favorable to the nonmovant will be taken
as true, every reasonable inference will be indulged in favor of the nonmovant, and any doubts
will be resolved in the nonmovant's favoc }V!xon v. ivfi: ProjJ. i'v~gmt. Co., 690 S.vV.2d 546, 548-49
(Tex. 1985).
B. TRc\DITIOK\L MOTIOK FOR SUM~L\RY jUDGMEKT.
Under a traditional sununary judgment standard, the movant for sununary
judgment must first state specifically the grounds for sununary judgment. Tex. R.
Civ. P. l 66a(c). l\forcovc1; a defendant who moves for summa1y judgment must disprove at least
one clement of each of the plaintiff's causes of action. Cath~y v. Booth, 900 S.vV.2d 339, 341 (Tex.
1995) ~)Cr curium). Therefore, the movant has the burden of showing that there is no genuine
issue of material fact and that it is entitled to judgment as a matter of law. Jvixon v. i'vli: ProjJ. i'v~gmt.
Co., 690 S.vV.2d 546, 548-549 (Tex. 1985). Unless tl1c movant's motion and evidence meet this
standard, the non-movant is not required to respond to tl1c summa1y judgment motion at all.
Rhone-Poulenc v. Steel, 997 S.vV.2d 217, 222-223 (Tex. 1999). In determining whether the movant
has carried its burden, all evidence favorable to the non-movant must be taken as true, every
reasonable inference must be indulged in favor of the non-movant, and any doubts must be
resolved in the non-movant's favoc Jvixon, 690 S.vV.2d at 548-549. Evidence favoring tl1c movant's
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position will not be considered unless it is uncontrovcrtcd. Davi1 v. City of GrajJevine, !BB S.vV.3d
74B (Tex. App. - Fort \Vorth 2006) (citing Great Am. Reserve Ins. Co. v. San Antonio Plumbing SujJjJ/y Co.,
391S.\V.2d41, 47 (Tcx.1965)).
III. PLAINTIFF SHO\VS A GENUINE DISPUTE AS TO l\1ATERIAL FACTS
REGARDING HER \YORKERS' COMPENSATION RETALIATION CLAIM, AND
DEFENDANT CANNOT SHO\V IT IS ENTITLED TO JUDGMENT AS A
MATTER OF LA\V.
Under Texas law, "[a] person may not discharge or in any other manner discriminate
against an employee because the employee has ... filed a workers' compensation claim in good
faith". Tex. Labor Code §451. 001 (1); Dillard DejJt. Stores v. Hecht, 2 25 S. vV. 3d 109, 116-117 (Tex.
App. - El Paso 2005).
"In order to succeed on a claimed violation of Section 451.001, the employee must show
that the termination or other discrimination would not have occurred when it did but for the
employee's assertion of a compensation claim." Hecht, 225 S.vV.3d at 117 (quoting Continental
Griffee Product.1, Co. v. Cazarez, 93 7 S.vV.2d 444, 450-51 (Tex. 1996)).
A. DEFEKn\KT Cc\l\"KOT SHOW IT IS EKTITLED TO jUDGMEKT, BECc\USE PL\IKTIFF
SHOWS c\S ,\ l\•L\TTER OF L\W TIL\T EMPLOYERS AEROTEK c\KD SCHKEIDER c\RE
PL\IKTIFF'S CO EMPLOYERS UKDER TEXc\S L\BOR CODE§9 l.042 (C)c\KD
§91.001(11).
Under Texas statutmy authority, a staffing agency and its client company arc
For wmkcrs' compensation insurance purposes, a license holder and the license holder's
client shall be cocmploycrs. If either a license holder or a client elects to obtain workers'
compensation insurance coverage for covered employees, the client and the license holder
arc subject to Sections 406.005, 406.034, 408.001, and 411.032.
Texas Labor Code §91.042(c); Texas Labor Code §91.001(11) ("'License holder' means a person
licensed under this chapter to provide professional employer services."); Garza v. Excel L1~gi1tic.1, I 00
S.vV.3d 2BO, 2B4 (Tex. App. - Houston [!st] 2002) ("\Vhcn two entities have joint control over an
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employee's work, they arc co-employers.") (citing TVhite v. Liberty F;_ylau Selz. Di1t., BBO S.\V2d 156,
159 (Tex. App. - Texarkana 1994, \vrit denied)).
Additionally, the United States District Court for the \Vcstcrn District of Texas has
previously ruled -- when ruling against the same Defendant, Schneider Electric -- that
"[w]hcrc a staffing agency supplies \vorkcrs to a client company, the client company may also be
held liable where it is found to be a "joint employer" that exerts a sufficient degree of
control over the employee." Aferaz v. HJlt Afonagement Co1jJ.) et al., Case 3: 16-cv-OO 155-Frvf, Ecf
74, "Order Denying Schneider Electric Defendants' rvfotion For Summary Judgment And Volt
l\fanagcmcnt Corporation's !vfotion For Summary Judgment", p. 7 (\VD. Tex., July 7, 2017)
(citing Burton v. Freescale Semiconduct01; Inc., 798 F. 3d 2 22, 228-29 (5th Cir. 2015)). Specifically, the
District Court explained:
In order to determine whether the client company meets these criteria, the court applies
the "hvbrid economic realities/common lmv control test." The test consists of two
component<;: the common law control component and the economic realities component.
The common law control component considers "whether the alleged
employer has the right to hire and fire the employee, the right to supervise
the employee, and the right to set the employee's work schedule." The
economic realities component focuses "on whether the alleged employer paid the
employee's salary, \Vithhcld ta.xcs, provided benefits, and set the terms and conditions of
employment."
[... ]
As the court must "emphasize" the common law control portion of the test,
hmvcvc1; Schneider's lack of economic pmvcr over Plaintiff is not dispositivc.
[... ]
Where an entity has the right to supervise an employee for infractions and
demand that he he terminated, it constitutes an employer for ADA
purposes.
J.\:Jeraz, Case 3:16-cv-00155-FM, Ecf 74, pp. 7-9 (footnotes omitted) (emphasis added).
In the instant case, Co-Defendant Acrotck, Inc. ("Employer Acrotck") is a staffing agency
\vhich employs Employee Ramirez, DejJosition rif Aforia Ramirez, 12: 7-B; 51 :20-25 (Exhibit A), and
assigns Employee Ramirez to \Vork at Co-Employer Schneider, Ramirez DejJo, 56:3-5 (Ex. A).
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\Vhile Employee Ramirez is assigned to work for Employer Schneider; Employer Schneider
trains Employee Ramirez, Ramirez DejJo, 99: 16-100: 14 (Ex. A), Employer Schneider
disciplines or recommends discipline against Employee Ramirez, DejJosition 1?f Ben
Diaz, 25:2-8; 39: 15-24 (Exhibit l ); (Exhibit B, Acrotck's "Disciplinary Action Report" based on
Schneider Elcctric 's recommendation), and Employer Schneider admits, in its
interrogatory answers, that it demanded Employee Ramirez be terminated \vhcn it
demanded Co-Employer Acrotck staffing agency end Employee Ramirez' assignment to
Employer Schneider (Ex. C, Schneider Answer to Interrogatory No. 9) ("Schneider Electric
requested that Acrotck end Plaintiff's temporary assignment on April 7, 201B.").
For these reasons, Employee Ramirez shmvs both, that as a matter of lmv under the Texas
Labor Code, and alternatively as a genuine question of material fact that Employers Acrotck and
Schneider arc Employee Ramirez' co-employers. Texas Labor Code §9 l.042 (c); Garza, 100
S.\V.3d at 284; Hlhite, BBO S.\V.2d at 159. Thus, Employer Schneider cannot prove, conclusively
as it must, it is entitled to judgment as a matter of law, and the Court must rightly deny the
Motion under these facts. Tex. R. Civ. P. 166a(i); Tamaz, 206 S.\V3d at 581-582; Tex. R. Civ. P.
166a cmt. -199 7; ]ohnrnn , 73 S.\V.3d at 207; Ford Afotor Co. , 135 S.\V.3d at 600-601; Havner, 953
S.\V.2d at 711; Randall, 752 S.\V2d at 5; }/ixon, 690 S.\V.2d at 548-549; Tex. R. Civ. P. 166a(c);
Rhone-Poulenc, 997 S.\V.2d at 222-223; Davi1, U3B S.\V.3d 748; Great Am. Reserve Ins. Co. , 391 S.\V.2d
at 47.
B. Defendant Cannot Show it is Entitled to Judgment as a l\fattcr of La,v, as Employers
Acrotck and Schneider arc Plaintiff's Co-Employers, and Employer Acrotck Has a
\Vorkcrs' Compensation Insurance Policy Covering Plaintiff. Therefore Co-Employer
Schneider is Liable to Plaintiff Under Tcxa<; \Vorkcrs' Compensation Laws.
Under Texas statutmy authority, for \vorkcrs' compensation purposes, a staffing agency
and its client company arc "cocmploycrs", and when either the staffing agency or the client
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company has a \vorkcrs' compensation insurance policy covering the staffing agency's employee
leased to the client company, both the staffing agency and the client company arc liable to the
employee under Texas workers' compensation lmvs.
For \vorkcrs' compensation insurance purposes, a license holder and the license holder's
client shall be cocmploycrs. If either a license holder or a client elects to obtain \Vorkcrs'
compensation insurance coverage for covered employees, the client and the license holder
arc subject to Sections 406.005, 406.034, 4013.001, and 411.032.
Texas Labor Code §91.042(c); Texas Labor Code §91.001(11 ) ("'License holder' means a person
licensed under this chapter to provide professional employer services."); Texas Labor Code
§408. 00 I (a) ("Recovery of \vorkcrs' compensation benefit<; is the exclusive remedy of an employee
covered by workers' compensation insurance coverage or a legal beneficiary against the employer
or an agent or employee of the employer for the death of or a \vork-relatcd ir~ury sustained by
the employee."); Brown v. Aztec R~g Equipment, Inc., 921 S.\V.2d 835 (Tex. App. - Houston [14th]
1996) (holding that for workers' compensation purposes, a staffing agency and its client company
arc co-employers, and the staffing agency's \Vorkcrs' compensation insurance policy covers the
client company); Garza, I 00 S.\V.3d at 288 (holding that \Vhcn a staffing company has a \Vorkcrs'
compensation insurance policy covering an employee the staffing company assigns to work at a
client company, a \vorkcrs' compensation claim is the exclusive remedy of the employee against
the client company).
Co-Employer Acrotck is a staffing agency \vhich employs Employee Ramirez, Afaria
Ramirez De/Jo, 12:7-8; 51:20-25 (Ex. A), and assigns Employee Ramirez to work at Co-Employer
Schneider; Ramirez De/Jo, 56:3-5 (Ex. A). Accordingly, for \VOikcrs' compensation purposes,
Employers Acrotck and Schneider arc Employee Ramirez' co-employers. Texas Labor Code
§9 l.042 (c); Brown, 921 S.\V.2d 835; Garza, 100 S.\V3d at 288.
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Employer Schneider admits 'Aerotek provides its employees with wmkers' compensation
coverage." (Motion, p. 2, iJ2). Accordingly, under Texas law, Co-Employers Aerotek and
Schneider are liable to Plaintiff under Texas workers' compensation laws, with a
wmkers' compensation claim as the exclusive remedy for Employee Ramirez against Employer
Sclmeidec Texas Labor Code §9 l.042(c); Brown, 921 S.vV.2d B35; Garza, 100 S.vV.3d at 2BB. As
Employee Ramirez' workers' compensation claim is her exclusive remedy against
Employer Schneider, Employer Schneider is subject to liability under section
451.001 -- prohibiting Employer Schneider from "discharg[ing] or in any other manner
discriminat[ing] against [Employee RamirezJ because [Employee RamirezJ has . . . filed a
wmkers' compensation claim in good faith". Tex. Labor Code §451.001(1); Hecht, 225 S.vV.3d at
116-117.
Nevertheless, Employer Schneider ignores Texas statutes, Texas Labor Code §91.042(c),
and case law, Brown, 921 S.vV.2d B35; Garza, 100 S.vV.3d at 2BB, and falsely alleges it cannot be
held liable for Employee Ramirez' \Yorkers' Compensation Retaliation claim because Employer
Schneider's own wmkers' compensation insurance policy did not cover Employee Ramirez.
(Motion, p. 6).
For the reasons discussed sujJra, this is not the law in Texas. Texas Labor Code §91.042(c);
Brown, 921 S.vV.2d B35; Garza, 100 S.vV.3d at 2BB.
In support of its position, Employer Schneider cites to a Fifth Circuit case, rather than
Texas authority. (Motion, pp. 4-5) (citing Burton v. Freescale Semiconduct01; Inc., 79B F.3d 222, 241-243
(5th Ci1: 2015)). Howeve1; Ewton is inapplicable for several reasons.
First, in Burton, the Fifth Circuit made an "Erie guess" on what decision the Texas
Supreme Court would reach. Burton, 79B F.3d at 242. An Erie guess by the Fifth Circuit as to what
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law Texas courts will follow docs not make the decision for Texas courts or establish any binding
precedent on Texas state courts. Penrod Drillirzg C01jJ. v. vVilliam.1, 868 S.vV.2d 294, 296 (Tex. 1993)
("\Vhilc Texas courts may certainly draw upon the precedents of the Fifth Circuit, or any other
federal or state court, in determining the appropriate federal rule of decision, they arc obl~gated to
follow only higher Texas courts and the United States Supreme Court.") (emphasis in original)
(citing ivlolzamed v. Exxon C01jJ., 796 S.vV.2d 751, 753-54 (Tex.App. - Houston [14th Dist.] 1990,
writ denied); Turner v. PV Int'/ C01jJ., 765 S.vV.2d 455, 470 (Tex.App. - Dallas 1988), writ denied
per curiam on other grounds, 778 S.vV.2d 865 (Tex. 1989); Bantow v. State, 742 S.vV.2d 495,
500-0 I ri. 2 (Tex.App. - Austin 1987, writ denied); Summertree Venture III v. Federal Sav. Loan Ins.
C01jJ., 742 S.vV.2d 446, 450 (Tex. App. - Houston [14th Dist.] 1987, writ denied)). Accordingly,
Burton is not binding precedent on this Court.
Second, Burton misstates Texas law. Specifically, the Fifth Circuit never addresses Texas
statutory authority that when a the staffing agency has a workers' compensation insurance policy
covering the staffing agency's employee leased to a client company, the client company is liable to
the employee under Texas workers' compensation laws.
For workers' compensation insurance purposes, a license holder and the license holder's
client shall be cocmploycrs. If either a license holder or a client elects to obtain
workers' compensation insurance coverage for covered employees, the
client and the license holder are subject to Sections 406.005, 406.034, 408.001,
and 411.032.
Texas Labor Code §91.042(c) (emphasis added); Texas Labor Code §408.00l(a) ("Recovery of
workers' compensation benefits is the exclusive remedy of an employee covered by workers'
compensation insurance coverage or a legal beneficiary against the employer or an agent or
employee of the employer for the death of or a work-related injury sustained by the employee.").
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The Fifth Circuit's Burton opinion similady ignores controlling Texas case law in accord
with the statute. Brown, 921 S.vV.2d B35 (holding that for wmkcrs' compensation purposes, a
staffing agency and its client company arc co-employers, and the staffing agency's wmkcrs'
compensation insurance policy covers the client company); Garza, I 00 S.vV.3d at 2BB (holding
that when a staffing company has a wmkcrs' compensation insurance policy covering an
employee the staffing company assigns to work at a client company, a wmkcrs' compensation
claim is the exclusive remedy of the employee against the client company); .1ee also Brown, 921
S.vV.2d at B41-B42 (citing Clzeri:r v. C!zu.1tz, 715 S.vV.2d 742, 743 (Tex. App. - Dallas 1986, no
writ); }vfan!zall v. 1U_y.1-R-[fl J\)tex, Inc., B25 S.vV.2d 193, 194 (Tex. App. - Houston [14th Dist.]
1992, writ denied); Gibson v. Grocen SujJjJ/y, Co., Inc., B66 S.vV.2d 757, 759 (Tex. App. - Houston
[14th Dist.] 1993, no writ); Pedenon v. AjJjJ/e Corru,gated Packagirzg, Inc., B74 S.vV.2d 135, 136-37 (Tex.
App. - Eastland 1994, writ denied); Rodr~guez v. }vfartin LandscajJe }vfana,gement, Inc., BB2 S.vV.2d
602, 603 (Tex. App. - Houston [14th Dist.] 1994, no writ)).
In Pedenon v. AjJjJ/e Corru,gated Packa,gin,g, Inc., B74 S.vV.2d 135 136-37 (Tex.App. - Eastland
1994, writ B42 denied), the plaintiff was employed by Staff Benefits and assigned to
Apple. The plaintiff was injured on Apple's premises while under Apple's direction and
control. Id. The plaintiff sought and received workers' compensation benefits from Staff
Benefits' insurance carric1: The plaintiff tl1cn filed a negligence suit against Apple alleging
that even though it had the right to control her work, Apple was not a subscriber under
the Act. Id. The trial court granted Apple's motion for summary judgment based on the
exclusive remedy provision. Id. The appellate court affirmed, holding that tl1c plaintiff
was a "covered employee" of Apple because Apple carried its workers' compensation
insurance "tl1rough an arrangement" with Staff Benefits. Id. at 13 7-3B.
Brown, 921 S.vV.2d at B41-B42. Accordingly, as Burton misstates Texas law, it is not binding
precedent on this Court. vVilliam.1, B6B S.vV.2d at 296; ivlolzamed, 796 S.vV.2d at 753-54; Turner,
765 S.vV.2d at 470; Bantow, 742 S.vV.2d at 500-0l 1i. 2; Summertree Venture III, 742 S.vV.2d at 450.
For these reasons, Co-Employer Schneider is liable to Employee Ramirez under Texas
wmkcrs' compensation laws. Texas Labor Code §9 l.042(c); Brown, 921 S.vV.2d B35; Garza, I 00
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116
S.\V.3d at 288; see also Chert)', 715 S.\V.2d at 743; Afanhall, 825 S.\V.2d at 194; Gibson , 866 S.\V.2d
at 759; Pedenon, 874 S.\V.2d at 136-137; Rod1~guez, 882 S.\V.2d at 603.
Thus, Employer Schneider cannot prove, conclusively as it must, it is entitled to judgment
as a matter of law, and the Court should rightly deny the l\fotion. Tex. R. Civ. P. l 66a(i); Tamaz ,
206 S.\V.3d at 581-582; Tex. R. Civ. P. 166a cmt. -1997; Johnson, 73 S.\V.3d at 207; Ford Afotor
Co., 135 S.\V.3d at 600-601; Havner, 953 S.\V.2d at 711; Randall, 752 S.\V.2d at 5; }tixon, 690
S.\V.2d at 548-549; Tex. R. Civ. P. 166a(c); Rhone-Poulenc, 997 S.\V.2d at 222-223; Davil', IB8
S.\V.3d 748; Great Am. Reserve Ins. Co., 391 S.\V2d at 47.
C. Defendant Cannot Show it is Entitled to Judgment as a Matter of Law, as Plaintiff
Shows a Genuine Question of Material Fact that Defendant Receives Plaintiff's
Report of Her \Vorkplacc Injury, and is A,varc of Plaintiff's \Vorkcrs' Compensation
Claim.
On or about November 7, 2017, Employer Acrotck hires Employee Ramirez to \Vork at
Co-Employer Schneider; and Employer Schneider begins training Employee Ramirez. Ramirez
DejJo, 12:7-B; 51:20-25; 56:3-5; 73:13-19; 99:16-100:14 (Ex. A ). Specifically, Employers Acrotck
and Schneider hire Employee Ramirez to work in the Quality Control Department. Ramirez DejJo ,
79: 10-11 (Ex. A). Employers Acrotck and Schneider know Employee Ramirez has experience as a
quality control supervisor: Ramirez DejJo, 43: 14-44: 11; 54: 12-55: lB (Ex. A). At no time during
her employment with Schneider and Aerotek, did Schneider and Aerotek issue any
write-up for any employment performance deficiency to Employee Ramirez.
C01jJorate DejJosition, Horacio Ramirez, 26:22-27:2; 30: 16-22 (Exhibit P).
On April 7, 20 IB, Employer Schneider; specifically through Supervisor Jesus Estrada, is
fint made aware of Employee Ramirez' injury when he receives Employee Ramirez' report that
she sustains an on-the-job injury. Ramirez DejJo, 133:16-135:15; 151:11-20 (Ex. A ). That same day
on April 7, 20 lB Employer Schneider's Senior Manufacturing Supervisor Cesar Hernandez also
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receives Employee Ramirez' report that she sustains an on-the-job injury. Ramirez DejJo, LS I: 11-20
(Ex. A).
Then, on April 8, 20 I B, Employer Schneider's nurse receives Employee Ramirez' report
of her on-the-job injury, along with Supervisor Estrada \vhom had received the report the day
prior on April 7.RamirezDejJo, 153:1-19; 159:15-21 (Ex.A).
On or about April 8 or 9, 20 IB, Employers Schneider and Aerotek receive notice
Employee Ramirez files a workers' compensation ir~UIY report. (Exhibit R, Complete Emergency
Care "\Vorkers' Compensation Ir~ury" Report, Ramirez 000068).
On April 9, 201B, Employer Aerotek's Onsite !vfanager Esther Flores receives Employee
Ramirez' email reporting her injury. (Exhibit K, Employee Ramirez' April 9, 20 I 8 email to Esther
Flores, Ramirez 000076); Ramirez DejJo, 159:22-160:2 (Ex. A ).
Thus, as Employee Ramirez shmvs a genuine question of material fact that Employer
Schneider receives Employee Ramirez' report of her workplace injUiy, and is aware of Employee
Ramirez' workers' compensation claim, Employer Schneider cannot prove, conclusively as it
must, it is entitled to judgment as a matter of law, and the Court should rightly deny the .Motion.
Tex. R. Civ. P. 166a(i); Tamaz, 206 S.\V.3d at 581-5132; Tex. R. Civ. P. 166a cmt. -I997;]olm.1on,
73 S.\V.3d at 207; Ford Afotor Co., 135 S.\V.3d at 600-601; Havner, 953 S.\V.2d at 711; Randall, 752
S.\V.2d at 5; Nixon, 690 S.\V.2d at 5413-549; Tex. R. Civ. P. 166a(c); Rhone-Poulenc, 997 S.\V.2d at
222-223; Davil', IBl3 S.\V.3d 7413; Great Am. Re.1erve Ins. Co., 391 S.\V.2d at 47.
D. Defendant Cannot Show it is Entitled to Judgment as a l\fatter of Law, as Plaintiff
Shows a Genuine Question of Material Fact that Defendant RetaJiates Against
Plaintiff by Terminating Plaintiff at Least in Part for Plaintiff's Reporting an On-the-
Job Injury and Making a \Vorkers' Compensation Claim.
"The first type of prohibited discriminatory behavior identified in the statute [Tex. Labor
Code §451.00 !]-discharge-is a classic example of a tangible employment action." Shell~y
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Di1tribution1, Inc. v. Reta, 441 S.\V.3d 715, 719 (Tex. App. - El Paso 2014) (citing Burlir~gton Indu.1trie.1~
Inc. v. Ellerth, 524 U.S. 742, 761, 1lBS.Ct.2257, 2268, 141L.Ed.2d633 (1998)).
"To prove a violation of Section 451.001, it is not necessary to show that a
workers' compensation claim was the sole motivation for the termination." Echostar
Satellite L.L.C. v. A,guilar, 394 S.\V.3d 276, 287 (Tex. App. - El Paso 2012) (citing Continental Cr?!fee
Products Co. v. Cazarez, 937 S.\V2d 444, 450 (Tex. 1996)).
Circumstantial evidence showing a causal link between a termination and the filing of a
\vorkcrs' compensation claim includes, but is not limited to:
1. Knowledge of the compensation claim by those making the decision to terminate;
2. Temporal proximity of the termination to the date of the injury or claim;
3. Evidence that the stated reason for the discharge \Vas false; and
4. Failure to adhere to established company policies.
Edw.1tar Satellite LL. C., 394 S.\V.3d at 2B7-2BB.
On April 7, 2018, the same day on which Employee Ramirez \Vas injured at \Vork, hut
after Schneider Supervisor Estrada receives Employee Ramirez' report of her
injury, Schneider Supervisor Estrada then recruits another Schneider manager,
Senior Manufacturing Supervisor Cesar Hernandez, to report that Employee
Ramirez was working in a testing booth without her safety gloves on and to
recommend to Employer Schneider's Human Resources Manager, Ben Diaz, that
Employee Ramirez he terminated. (Exhibit H , "Affidavit of Cesar Hernandez"). Senior
l\'1anufacturing Supervisor Hernandez \vholly relics on Supervisor Estrada's recommendation,
\Vithout any investigation himself, when he sends an email to Human Resources !vfanagcr Diaz
recommending the termination of Employee Ramirez. (Ex. H, Ramirez 000767-000769). Senior
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l\'1anufacturing Supervisor Hernandez later recanted under oath, explaining he "never saw
Maria not \Vear her safety gloves" and "it was actually Jesus Estrada and Santiago Segovia who
\Vere the ones who told me to put that in my email". (Ex. H, Ramirez 000767). As the cat's paw,
Human Resources tvfanagcr Diaz merely docs Supervisor Estrada's bidding \vhcn he directs
Employer Acrotck to end Employee Ramirez' assignment -- terminate her. Diaz DejJo , 13: 18-21;
17:16-22; 18:5-7, 10-11; 23:3-10; 4B:3-6, 9-13 (Ex. I); (Ex. H, April 7, 2018 email from Ben Diaz
to Esther Flores directing Flores to terminate Employee Ramirez, Ramirez 000768).
On April 20, 201 B, Employer Acrotck's Onsitc M anager Esther Flores terminates
Employee R amirez. DejJosition rif &tlzer Flores, 17: 18-20, 22; 18:8-11 (Exhibit]); DejJosition 1if Pri1cilla
Petenen, 70: 15-20, 23-25; 71: 12-21 (Exhibit Qj (testifying Acrotck terminates Ramirez at
Schneider's request, as Schneider "would not terminate the assignment" of an cmploycc). 1
1. Plaintiff shows a genuine question of material fact that Defendant's employees who
knc\v of Plaintiff's report of her workplace injury and her \v01kcr s' compensation
claim \Vere the decision makers in Plaintiff's termination.
In the seminal case of Staub v. Proctor Hosp., the United States Supreme Court
recognized that "[a]n employer's authority to reward, punish, or dismiss is often
allocated among multiple agents. The one who makes the ultimate decision does
so on the basis of performance assessments by other supervisors." Staub n Proctor
Ho.1/J., 131 S. Ct. 11 B6, 1192-1193 (2011 ) (Scalia, J., discussing the famous cat's pmv analogy and
his analysis).
1 Employer Acrotck's Employee Relations Specialist Priscilla Petersen testifies Employer
Schneider Electric did not produce any witness statements, video, or write-ups to
substantiate the claim that Employee Ramirez removed her safety gloves, except
for the claim of Supervisor Estrada. Petenen DejJo , 66:12-14, 16-20; 66:25-67:2, 5;
68:19-21 , 23; 69:11-12, 14-18, 20-23 , 25 (Ex. Qj.
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As the adduced evidence shmvs, Supervisor Estrada falsely accused Employee Ramirez of
a safety violation and then recommended her termination and so his discriminatory animus is
imputed onto Joint Employers Acrotck and Schneider; even if Supervisor Estrada did not directly
make the decision to terminate Employee Ramirez. Staub, 131 S. Ct. at 1194 (holding that if a
supervisor performs an act motivated by discriminatory animus that is intended by the supervisor
to cause an adverse employment action, and if that act is a proximate cause of the ultimate
employment action, then the employer is liable.).
This evidence is important for several rca<;ons. First, it shows that Supervisor Estrada
tried to hide the fact that he -- Estrada -- \Vas the one making the false report that Employee
Ramirez \Vas not wearing her safety gloves. (Ex. H, Cesar Hernandez Aff.). Second, it shows that
Estrada wa<; also trying to hide the fact that he -- Estrada himself -- \vas the one recommending
.Maria Ramirez's termination and not Cesar Hernandez. (Ex. H, Cesar Hernandez Aff.). Third,
Cesar Hernandez' testimony proves that it is on[y after Employee Ramirez reports her irtjury and
disability to E1trada, that Supervisor Estrada recruit<; him -- Cesar Hernandez -- who has no
personal knmvlcdgc of the purported policy violation to then make the false rcport2 and to
recommend that her assignment be terminated. (Ex. H, Cesar Hernandez Aff.). And Fourth,
because Estrada makes this false report and recommendation to terminate mere minutes or hours
after Employee Ramirez has made her report, such suffices to shmv a causal connection between
her protected activity and the retaliatory discharge. See TVimlwm Steel Co. v. Arias, 831 S.\V.2d 81,
84 (Tex. App. - El Paso 1992, no writ) (finding retaliatory motive \vhcrc employee fired a fnv days
follo,ving injury in order to deny employee ability to file claim). Accordingly, pursuant to
2 A<; discussed .1ujJra, Employee Ramirez denies and rcfu tcs that she ever \vorkcd in a testing booth
\Vithout her safety gloves on and affirmatively testifies that she ahvays worked with her safety
gloves on. Ramirez DejJo, 84:7-16; 107:2-22; 110:11-23; 112:10-14 (Ex. A).
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controlling United States Supreme Court authority, Supervisor Estrada's discriminatory animus is
imputed onto Joint Employer Schneider (and Acrotck), even if Supervisor Estrada did not
directly make the decision to terminate Employee Ramirez, \vhich termination \Vas effected on
April 20, 2018. Staub, 131 S. Ct. at 1194.
For these reasons, Employee Ramirez shmvs a gcnumc question of material fact that
Employer Schneider's employees who knew of Employee Ramirez' report of her \vorkplacc
injury and her workers' compensation claim were the decision makers in Employee Ramirez'
termination. Ec/wstarSatellite L.L.C., 394 S.\V3d at 287.
2. Plaintiff shows a genuine question of material fact regarding the
temporal proximity between her date of the injury or workers'
compensation claim and her termination.
In Texas, close timing between an employee's date of the injury or workers' compensation
claim and her termination may provide the "causal link" required for a case of retaliation.
Echostar Satellite LL. C., 394 S.\V.3d at 288; .1ee, e-.g:, P01terfield v. Galen Hosp. C01jJ., Inc., 948 S.\V.2d
916, 919 (Tex. App. - San Antonio 1997, \vrit denied) (citing Afurwz v. H & Af TV/wle.1ale, Inc., 926
F.Supp. 596, 610 (S. D. Tcx.1996)) (finding retaliatory motive where employee fired within one
month of filing workers' compensation claim); vVimlzam Steel Co. v. Arias, 831 S.\V2d Bl, 84 (Tex.
App. - El Paso 1992, no writ) (finding retaliatory motive where employee fired a fnv days
follmving injury in order to deny employee ability to file claim); Texas DejJt. rif State Health Services v.
Rockwood, 46B S.\V.3d 147, 157-1513 (Tex. App. - San Antonio 2015, no pct.) ('\vc hold this
temporal proximity of approximately one month to be sufficient to raise a fact issue on the
causation clement of Rochvood's retaliatory discharge claim"); Tex. DejJ't 1if Criminal Justice v.
Flores, 555 S.\V.3d 656, 668-669 (Tex. App. - El Paso 20 I 8) (holding a five-month time gap
between the protected activity and the adverse employment action "raises a fact issue on
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causation vis-a-vis any temporal proximity."). The evidence in the case at bar is even closer
because Employers Schneider and Aerotek fired Employee Ramirez is, at most, mere!y less than two
weeks after she first reported her \vorker's compensation irtjmy, or as little as several hours after
she \Vas irtjured, a<; shO\vn below.
On April 7, 20 IB, Human Resources l\'1anager Diaz, as the cat's paw,:.; directs Employer
Aerotek to end Employee Ramirez' assignment -- i.e. terminate her: Diaz DejJo, 13: IB-21;
17:16-22; 1B:5-7, 10-11; 23:3-10; 48:3-6, 9-13 (Ex.!); (Ex. H, April 7, 201B email from Ben Diaz
to Esther Flores directing Flores to terminate Employee Ramirez, Ramirez 000768). Staub, 131 S.
Ct. at 1194.
On April 20, 2018, Onsite Manager Flores terminates Employee Ramirez,
Flores DejJo, 17: 18-20, 22; 18:8-11 (Ex.]); Petenen DejJo, 70: 15-20, 23-25; 71: 12-21 (Ex. Q), a mere
thirteen (13) days after receiving notice of Employee Ramirez' on-the-job injury,
RamirezDejJo, 133:16-135:15; 151:11-20 (Ex. A).
As the temporal proximity between Employer Aerotek and Employer Schneider's receipt
of Employee Ramirez' first report of her on-the-job injury and Aerotek and Schneider's decision
to terminate Employee Ramirez is either (1) only hours (less than a day) from Schneider's
Estrada-to-Hernandez-to-Diaz request to terminate to Aerotek's Flores or (2) merely thirteen (13)
days from the date of Aerotek's pulling of the trigger to terminate, Employee Ramirez sho,vs a
genuine question of material fact regarding the temporal proximity bet\veen her date of the
injury or \vorkers' compensation claim and her termination. Staub, 131 S. Ct. at 1194; Echostar
Satellite L.L. C., 394 S.\V.3d at 288; PortelfiAd, 94B S.\V.2d at 919; J.Uurwz, 926 F. Supp. at 61 O; Arias,
831 S.\V.2d at 84.
:.; Staub v. Proctor Ho.1jJ., 131 S. Ct. 1186, 1192-1193 (2011) (Scalia, J., discussing the famous cat's
paw analogy and his analysis).
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3. Plaintiff shows a genuine question of material fact that Defendant's stated reason for
Plaintiff's discharge is false and mere pretext.
Employers Acrotck and Schneider allege they terminated Employee Ramirez "because of
repeated unsafe conditions where she forgot to put her gloves t\vicc [sic]". (Ex. H, Ramirez
000769). However; Employer Schneider's own Corporate Representative, during the
Corporate Representative Deposition, could not identify any alleged violation. Diaz
DejJo, 21 :20-22:3 (Ex. 1). Employer Schneider's Corporate Representative admits Employer
Schneider did not discipline Employee Ramirez for these alleged, unidentified safety violations,
or maintain any record of the alleged safety violations. Diaz DejJo, 39:3-10 (Ex. 1). Employer
Schneider then points the finger at Acrotck, claiming this is because EmjJl1tver Aerotek -- as
Employee Ramirez' staffing company -- is in charge of any disciplinary actions. Diaz DejJo,
24: 2-25 :H; 39: 11-24 (Ex. l). For its part, Employer Acrotck's Corporate Representative points its
finger at Schneider, claiming that it docs not have any record of Employee Ramirez' alleged,
"repeated" safety violations, because that it is the responsibility of EmjJlitver Schneider -- as the client
company -- to maintain such records. DejJosition 1!f Horacio Ramirez, 27:14-16, IH-21; 29: 22-30: 1,
4-B, 19-22 (Exhibit I'). To wit, Employers Acrotck's and Schneider's "evidence" for shmving
Employee Ramirez had engaged in "repeated" safety violations is merely to point at each other
for the lack thereof, \vhich is not evidence.
Although Employers Acrotck and Schneider each allege they terminated Employee
Ramirez "because of repeated unsafe conditions where she forgot to put her gloves t\vicc [su]"
(Ex. H, Ramirez 000769), they cannot, do not, produce ar~y evidence documenting the alleged
safety violations for these "repeated unsafe conditions", and instead point at each other as the
cause of this cvidcntiary void. Diaz DejJo, 21:20-22:3; 24:2-25:8; 39:3-24 (Ex. l ); Horacio DejJo,
27:14-16, IH-21; 29:22-30:1, 4-H, 19-22 (Ex. I'). Thus, in pointing at each other; Employers
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Acrotck and Schneider comically expose the truth: these fictitious "safety violations" -- for
\vhich there is no proof -- arc mere pretext for covering up their true illegal motivations. Diaz
DejJo, 24: 2-25 :8; 39: 11-24 (Ex. I); Horacio DejJo, 27:14-16, 18-21; 29: 22-30: 1, 4-8, 19-22 (Ex. P).
Employee Ramirez denies and refutes that she ever worked in a testing
booth without her safety gloves on and affirmatively testifies that she always
worked with her safety gloves on. Ramirez DejJo, 84:7-16; 107:2-22; 110:11-23; 112:10-14
(Ex. A).
Q And did you have to wear gloves?
A. Yes, ma'am.
Q And what kind of gloves did you have to wear?
A. \Ve had to \Vear a regular glove, a latex glove, I guess. It would -- like plastic. And then,
on top of that, those other gloves \vhcn we \Vere running electricity through the machine.
Q And they're special electric -- electrical-resistant gloves, right?
A. Yes, ma'am.
Ramirez De/Jo, 84:7-16 (Ex. A).
Q Tell me about \vhcn that happened.
A ..Mr: Estrada came in, and I \Vas with the other gentlemen that we \Vere testing the unit.
And when we finished testing the unit -- because I wasn't allowed to actually test the unit
myself -- he's like, Okay, we're done. And then you wave your hand to shut off the
electricity, right? So everything shuts off automatically:
He \vavcd his hand, shut off the electricity, and we started taking off our gloves.
And Estrada \Vas standing the \vhole time \VC \Vere doing this, and he start<; screaming. He
goes, \Vhy arc your gloves off? I'm like, My gloves aren't off. He goes, Your gloves
arc off. I go, No, my gloves aren't off. And he's like, Get out of the booth. Okay.
I got out of the booth. He's like, You cannot be in the booth when the electricity is
on \vithout your gloves. I'm like, I knmv that. He goes, Your gloves were off. I go, My
gloves were not off. And he goes, You knmv \vhat, let's just leave it at that. I'm like,
Fine. And that was it.
Ramirez DejJo, 107:2-22 (Ex. A) (emphasis added).
A. There wouldn't he no way I would he in that without gloves. I'm not
dumb.
Q Right. I understand.
A. I'm sorry.
Q So that --
A. I wouldn't be in there without my gloves, without my proper -- there \Vas no
\vay you could be in there, because even if an electric light \Vould shoot out from the
machine, you could get zapped, even \vith gloves or without gloves. You know, that's \vhy
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you had to wear like special clothing, because just in case anything \vould zap in there,
something wasn't hooked up right, something was electrical.
Ramirez DejJo, 110: 11-23 (Ex. A ) (emphasis added).
A. No. Actually, \vhen -- when he asked me to get out of the booth, I still had my
gloves on. And he goes, You didn't have your gloves on. He goes, You \Vere taking off
your gloves. I go, No. He's like, \Ve'll talk about this later; and he walked off
Ramirez DejJo, 112: 10-14 (Ex. A) (emphasis added).
Accordingly, given the Texas Supreme Court's affirmation that, in ruling on a summary
judgment, all evidence favorable to the non-movant must be taken as true, every reasonable
inference must be indulged in favor of the non-movant, and any doubts must be resolved in the
non-movant's fav01; }fixon, 690 S.\V.2d at 548-549, Employee Ramirez shO\vs a genuine question
of material fact that Employer Schneider's stated reason for Employee Ramirez' discharge is false
and mere pretext, Echostar Satellite L.L. C., 394 S.\V.3d at 2B7.
4. Plaintiff shO\vs a genuine question of material fact that Defendant did not adhere to
established company policies \vhen terminating Plaintiff.
·Merely assuming m;guendo that Employee Ramirez in fact had one or more safety
violations \vhere she did not wear her safety gloves, Supervisor Estrada's testimony shows \vhy
Employers Aerotek and Schneider cannot prove a legitimate non-discriminatory reason for their
termination of Employee Ramirez, because Defendant<; did not previously follO\v their O\vn
policy concerning this termination. Diaz DejJo, 11:11-12:15 (Ex.!); Ramirez DejJo, 115:2-13;
161:23-162:15; 163:25-164:5; IBB:24-IB9:13 (Ex. A ); (Ex. K;; (Ex. D). Texas authority holds
that terminating an employee for violating a previously unenforced policy -- or a
policy which the defendant employer does not uniformly enforce -- constitutes
evidence of pretext, i.e. is evidence that the true reason for termination is not the
one stated by the employer but is, rather, more likely an illegal animus. Echostar
Satellite L.L.C., 394 S.\V3d at 287.
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Specifically, Employer Schneider's Corporate Representative testifies that had Employee
Ramirez -- who \vorkcd in a testing booth and not the \varchousc -- not \vorn her safety gloves, it
\vould be grounds for "immediate termination." Diaz DejJo, I I: I I-I 2: I 5 (Ex. I;. Even if Employee
Ramirez had prim; "repeated" safety violations, \vhich \vould have been grounds for "immediate
termination", Diaz DejJo, I I:I I-I2:I5 (Ex. I;, Employers Acrotck and Schneider did not terminate
Employee Ramirez when these alleged, prior safety violations occurred.
Indeed, Employee Relations Specialist Petersen also admits Employers Aerotek and
Schneider did not write up, document or discipline Employee Ramirez for any of
the alleged previous "repeated" safety violations but instead assigned additional \vork.
Petenen DejJo, 6 7: I 7-6B: I 0 (Ex. Q). In Texas, such is evidence of these Employers' illegal animus.
Echostar Satellite LL. C, 394 S.\V.3d at 2B 7.
5. Plaintiff shows a genuine question of material fact that Defendant has a "pattern,
practice and culture" of engaging in illegal discrimination and retaliation against
workers who require an accommodation or temporary leave from work.
This "causal link" bct\vccn Employee Ramirez' date of injury or workers' compensation
claim and Employee Schneider's termination of Employee Ramirez, as discussed sujJra, is not the
only evidence of an illicit motivating factor in the decision to terminate, hO\vcvcr.
Controlling Texas precedent holds that evidence of discrimination against other
employees \vithin the same protected class is evidence of an illegal animus. Specifically,
employees who have similarly reported a disability, physical impairment, mcnta.l or emotional
impairment, injmy, or work-place injury and \Vere discharged arc evidence of discriminatory
intent. Durbin v. Dal-Briar Co1jJ., B7 I S.\V.2d 263, 268-269 (Tex. App. - El Paso I994) (holding the
trial court erred by excluding evidence of defendant's termination of other employees,
supporting the claim that the employer discriminated and retaliated against the plaintiff as part
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of "a routine practice or policy of discriminating against workers \vho suffered on-the-job
injuries, and [the plaintiff] \Vas one victim of that policy."); Haggar Clothir~g Co. v. Hernandez, 164
S.\V.3d 407, 423-425 (Tex. App. - Corpus Christi 2003), rev'd on other grounds, 164 S.\V3d 386
(Tex. 2005) (approving the trial court's admission of "testimony by former [defendant's]
employees regarding the company's alleged 'pattern and practice' of discrimination against other
employees who had suffered work-related injuries", as "the rules of evidence allmv the admission
of evidence of the habit of a person, or of the routine practice of an organization, if the
evidence is relevant to prove that the conduct of the person or organization on a particular
occasion was in conformity with the habit or routine practice.") (citing Tex. R. Evi