IN THE
TENTH COURT OF APPEALS
No. 10-16-00260-CV
KENNY JONES,
Appellant
v.
NRG TEXAS, LLC,
Appellee
From the 77th District Court
Limestone County, Texas
Trial Court No. 30,721-A
MEMORANDUM OPINION
Kenny Jones filed suit again NRG Texas, LLC for wrongful termination based
upon a claim of workers’ compensation retaliation. The trial court granted summary
judgment in favor of NRG Texas, LLC. We affirm.
Background
Jones began his employment with NRG on March 17, 2008.1 On February 21, 2011,
Jones was replacing the seals on covers in the plant’s ductwork. Jones was instructed to
remove the old seal covers, which are made of steel and weighed about ten to fifteen
pounds, and transport them to the shop for new seals to be installed. As Jones was
removing a seal cover, it slipped from his hand and struck him in the thigh. Jones
informed his crew leader, David Scott, about the injury and the pain he was experiencing.
Scott instructed another worker to take Jones to the locker room and put ice on his thigh.
After putting ice on his thigh, Jones went to the plant’s first aid clinic for treatment.
At the plant’s first aid clinic, Jones saw the plant Safety Leader, Monte Atchley, and told
him about the injury. Atchley instructed Jones to go home for the day. Jones reported
for work the next morning. Jones says that he asked to be assigned to another job that
would not require him to go up and down stairs, but his request was denied. Jones
sought out a Union Steward who escorted Jones to the plant first aid clinic for medical
treatment. On February 23, 2011, Craig Warren, the Operations Manager in Maintenance,
took Jones to the Limestone Medical Clinic Emergency Room for treatment. Jones was
evaluated, and x-rays were taken of his leg. Jones was instructed to take Motrin as need
for pain, and he was released to return to work.
1 There is a dispute over whether Jones’s employer was NRG Texas, LLC or NRG Energy, Inc. We will
refer to Jones’s employer as NRG except where relevant to the argument before us.
Jones v. NRG Texas, LLC Page 2
After returning to work, Jones again asked to be assigned to a position that did not
require him to climb stairs, but his request was denied. Jones had conflicts with his crew
leaders and others after his return. On September 12, 2011, Jones was terminated for
insubordination, and he filed a grievance. The arbitrator ruled in Jones’s favor finding
that Jones should have received progressive discipline, but also finding that Jones did
engage in actionable misconduct. As a condition of his reinstatement, Jones agreed that
“if at any time in the next two years he should engage in insubordinate conduct his
employment may be summarily ended.”
Jones returned to work in October 2012, and he reported to a different crew leader.
Jones was late for work on a few occasions because he did not have reliable
transportation. Jones also returned to work without a valid driver’s license which was a
requirement of his employment. Jones was given time off from work to obtain a driver’s
license, but he did not obtain his license. Jones admitted to driving company trucks on
the property with other employees in the vehicle.
Jones took medical leave from April 1, 2013 until May 15, 2013, due to stress and
anxiety he was experiencing at work and in his personal life. NRG contends that Jones
failed to timely and correctly report his absences from work. His medical leave was
extended until June 15, 2013 when he was released to return to work. NRG suspended
Jones pending an investigation for failing to properly report his absences from work.
Jones v. NRG Texas, LLC Page 3
NRG was also investigating Jones for drawing threatening messages and images on his
toolbox. On June 28, 2013, Jones was terminated.
Summary Judgment
Jones argues in five issues on appeal that the trial court erred in granting NRG’s
no evidence and traditional motion for summary judgment. We review the trial court's
granting of a motion for summary judgment de novo. The movant in a traditional
summary judgment motion must show that there is no genuine issue of material fact and
that he is entitled to judgment as a matter of law. See TEX. R. CIV. P. 166a(c); Nixon v. Mr.
Prop. Mgmt. Co., Inc., 690 S.W.2d 546, 548 (Tex. 1985). The granting of a no-evidence
motion will be sustained when the evidence offered by the non-movant to prove a vital
fact is no more than a mere scintilla. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706,
711 (Tex. 1997). When the trial court does not specify the grounds upon which it ruled,
the summary judgment may be affirmed if any of the grounds stated in the motion is
meritorious. W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005).
Wrongful Termination
Section 451.001 of the Texas Labor Code provides that:
A person may not discharge or in any other manner discriminate against
an employee because the employee has:
(1) filed a workers' compensation claim in good faith;
(2) hired a lawyer to represent the employee in a claim;
Jones v. NRG Texas, LLC Page 4
TEX. LAB. CODE ANN. § 451.001 (West 2015). An employee must prove that “but for” his
filing of a workers’ compensation claim, the termination would not have occurred when
it did. See Continental Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996); Jenkins
v. Guardian Indus. Corp., 16 S.W.3d 431, 435 (Tex.App. – Waco 2000, pet. denied). The
Supreme Court has noted factors which, if proven by the employee, are considered
circumstantial evidence of this "causal link." Continental Coffee, 937 S.W.2d at 450-51.
These include: (1) knowledge of the compensation claim by those making the decision on
termination; (2) expression of a negative attitude toward the employee's injured
condition; (3) failure to adhere to established company policies; (4) discriminatory
treatment in comparison to similarly situated employees; and (5) evidence that the stated
reason for the termination was false. Continental Coffee Prods. Co. v. Cazarez, 903 S.W.2d
70, 77 (Tex. App.—Houston [14th Dist.] 1995), aff'd in part and rev'd in part on other
grounds, 937 S.W.2d 444 (Tex. 1996)).
But, when an employer moves for summary judgment asserting that the
employee's termination was unrelated to his compensation claim, the employee has not
been called on to produce evidence of the employer's motive. Alayon v. Delta Air Lines,
Inc., 59 S.W.3d 283, 288 (Tex. App.—Waco 2001, pet. denied); Jenkins v. Guardian Indus.
Corp., 16 S.W.3d at 441. Only after the employer's summary judgment evidence
establishes a legitimate, non-discriminatory reason for the termination, is the employee
required to come forward with summary judgment evidence of a retaliatory motive, i.e.,
Jones v. NRG Texas, LLC Page 5
the causal link. See Texas Division-Tranter v. Carrozza, 876 S.W.2d 312, 313-14 (Tex.
1994); Alayon, 59 S.W.3d at 288; Jenkins, 16 S.W.3d at 441. See also M.D. Anderson Hosp. &
Tumor Inst. v. Willrich, 28 S.W.3d 22, 24 (Tex. 2000). The ultimate question will be
whether the evidence of a causal link is so strong as to justify a finding that the employer
had a retaliatory motive. Jenkins, 16 S.W.3d at 442.
Employer’s Reasons for Discharge
In the motion for summary judgment, NRG alleged that NRG Texas, LLC was not
Jones’s employer and that NRG Energy, Inc. is his actual employer. NRG contends that
there can be no retaliation between NRG Texas, LLC and Jones because NRG Texas, LLC
did not employ Jones. The workers’ compensation report lists NRG Energy, Inc. as
Jones’s employer. The explanation of benefits lists NRG Energy, Inc. as Jones’s employer
and as the insured. Jones’s current W-2 form states that NRG Energy, Inc. is his employer,
and Jones’s pay stub and earnings statement lists NRG Energy, Inc. as his employer.
NRG also argues in the motion for summary judgment that NRG Energy, Inc.,
Jones’s actual employer, provided legitimate reasons for terminating his employment.
NRG contends that after an investigation, Jones was terminated for insubordination,
arguments with co-workers and threats to co-workers, failure to obtain a valid driver’s
license, and failure to properly report absences from work.
The summary judgment evidence established that Jones did not have a valid
driver’s license as required by his employment. The summary judgment evidence further
Jones v. NRG Texas, LLC Page 6
established that Jones had confrontations with his co-workers and supervisors, and that
he drew the images and statements on his tool box. Jones was late for work on multiple
occasions and was absent from work without properly reporting his absence. NRG
established a legitimate, non-discriminatory reason for terminating Jones.
Causal Link
Jones must show that “but for” his filing of a workers’ compensation claim, the
termination would not have occurred when it did. See Continental Coffee Prods. Co. v.
Cazarez, 937 S.W.2d 444, 450 (Tex. 1996); Jenkins v. Guardian Indus. Corp., 16 S.W.3d 431,
435 (Tex.App. – Waco 2000, pet. denied). Jones filed the workers’ compensation claim in
February of 2011, and he was terminated in June of 2013. Jones’s workers’ compensation
claim for $330 was paid in 2011, and Jones did not miss any work because of the claim.
The two year lapse between the filing of the claim and the termination impedes a finding
of retaliation.
Knowledge
Gary Mechler, the general manager for NRG, stated in his affidavit that it was his
decision to fire Jones. Mechler further stated that his decision was based upon the
investigation report of Human Resources Manager Rebecca Sheets and that he was
unaware Jones had filed a workers’ compensation claim in 2011. Rebecca Sheets also
stated in her affidavit that she was unaware that Jones had ever sought or received
workers’ compensation benefits. This evidence is not controverted.
Jones v. NRG Texas, LLC Page 7
Negative Attitude
Jones alleges that Scott, his crew leader at the time of his injury, and Atchley, the
plant safety leader, made negative comments about his injury. Stray remarks by people
not involved in the termination decision are generally insufficient to show
discrimination. Clevinger v. Fluor Daniel Services Corp., No. 10-11-00288-CV, 2012
Tex.App. LEXIS 3128, (Tex.App. – Waco April 18, 2012, no pet.) (mem.op., not designated
for publication.); Willis v. Nucor Corp., 282 S.W.3d 536, 537 (Tex.App. – Waco 2008, no
pet.). Jones does not provide any evidence that Sheets or Mechler, who made the decision
to fire him, made negative comments concerning the injury or the claim. Clevinger v. Fluor
Daniel Services Corp., No. 10-11-00288-CV, 2012 Tex.App. LEXIS 3128 at *11.
Failure to Adhere to Established Company Policies
Jones argues that NRG failed to follow established company policies by not
applying the progressive discipline policy and also by not following its drug testing
policy. As a condition for reinstatement, Jones signed an acknowledgement that he could
be terminated at any time if he engaged in insubordinate conduct. On August 16, 2011,
Jones was required to take a drug test because his supervisor allegedly observed Jones
with glassy eyes, shakes, agitation, loud speech, and sweating. The record shows that
NRG documented odd behavior from Jones and filled out the reasonable suspicion drug
test form. Jones has not shown a failure to follow company policy.
Jones v. NRG Texas, LLC Page 8
Discriminatory Treatment in Comparison to Similarly Situated Employees
Jones provides examples of other employees who he claims were treated better
than him. “Employees are similarly situated if their circumstances are comparable in all
material respects, including similar standards, supervisors, and conduct.” Ysleta
Independent School District v. Monarrez, 177 S.W.3d 915, 917 (Tex.2005). Most of the
employees cited by Jones held different positions than he did or had different
supervisors. Jones cites one employee who had the same supervisor and position as he
did who completed computer training for another employee and was not terminated.
That conduct is not similarly situated to that of Jones. Jones provided no evidence of
discriminatory treatment for an employee with the same job title and supervisor who was
insubordinate, did not have a valid driver’s license, drew threatening images on a tool
box, and failed to correctly report absences.
Stated Reason for Termination is False
Jones has not provided any evidence that the stated reasons for his termination
were false. Jones admits that he does not have a valid driver’s license. He further admits
altercations with other employees and supervisors and drawing the images on his
toolbox. Jones also admits that he did not comply with attendance rules.
NRG presented evidence of a legitimate non-discriminatory reason for Jones’s
termination. The summary judgment evidence presented by Jones amounts to no
evidence of a retaliatory motive by NRG. We find that the trial court did not err in
Jones v. NRG Texas, LLC Page 9
granting NRG’s no evidence and traditional motion for summary judgment. We overrule
Jones’s five issues on appeal.
Conclusion
We affirm the trial court’s judgment.
AL SCOGGINS
Justice
Before Justice Davis,
Justice Scoggins, and
Judge Fancy Jezek2
Affirmed
Opinion delivered and filed April 26, 2017
[CV06]
2 The Honorable Judge Fancy Jezek, Judge of the 426 th District Court, sitting by assignment of the Chief
Justice of the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 74.003(a) (West 2013).
Jones v. NRG Texas, LLC Page 10
Kenny Jones v. NRG Texas, LLC
Combined Opinion