527 S.W.3d 391
Tex. App.2017Background
- Cardenas, a journeyman electrician on a Bilfinger project, injured his back on September 25, 2013, was placed on light duty, and returned to work the next day.
- Bilfinger supervisors reduced project staffing in late Sept./Oct. 2013; superintendent Narvaez compiled layoff lists on October 11 that included Cardenas.
- Cardenas retained an attorney on October 14, 2013; Bilfinger’s insurer was notified and Bilfinger filed a First Report of Injury on October 16; Bilfinger terminated Cardenas for “reduction in force” on October 17.
- Cardenas sued for retaliation under the Texas Workers’ Compensation Act, claiming termination was caused by his filing/hiring counsel; Bilfinger moved for traditional and no-evidence summary judgment.
- Summary-judgment evidence included affidavits and depositions showing (1) Narvaez decided layoffs before Cardenas retained counsel and did not know of any claim, and (2) several electricians were laid off around the same time for reduction in force.
- The trial court granted Bilfinger’s motion; the court of appeals affirmed, finding Cardenas failed to raise a genuine fact issue on causal link and that the trial court properly denied continuance/notice claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Cardenas established a prima facie TWCA retaliation claim (causal link) | Cardenas argued temporal proximity, the First Report filed the day before termination, prior knowledge of injury by supervisors, reduced hours, and pattern evidence established causation or pretext | Bilfinger argued decisionmaker (Narvaez) did not know of any claim when he decided layoffs (decision made Oct 11), multiple layoffs occurred for legitimate reduction-in-force reasons, and plaintiff offered only speculation | Held: Affirmed for Bilfinger — Cardenas failed to raise a fact issue on causation or pretext; evidence showed layoffs were decided before plaintiff retained counsel |
| Whether the summary-judgment motion was premature because discovery was incomplete | Cardenas argued discovery deadline had not run and he needed depositions of six former employees to show motive | Bilfinger argued plaintiff had over a year for discovery, received ample discovery, and cannot rely on conclusory assertions without showing diligence or materiality | Held: Denial of continuance not an abuse of discretion — plaintiff did not adequately describe evidence sought or show diligence |
| Whether plaintiff received adequate notice of the summary-judgment hearing | Cardenas contended he did not receive the motion 24 days before hearing | Bilfinger showed notice of the hearing plus service of the motion more than 21 days before the hearing as required by Rule 166a(c) | Held: Adequate notice — Bilfinger complied with 21-day service rule; 24-day assertion incorrect |
| Whether evidence of other employees’ terminations created a pattern supporting pretext | Cardenas pointed to termination notices and First Reports for four employees (2007–2011) who were terminated after injury reports | Bilfinger noted no evidence those employees filed claims, nor that they were similarly situated; evidence was conclusory and insufficient | Held: Insufficient — plaintiff failed to show similarity or probative pattern; conclusory allegations do not defeat summary judgment |
Key Cases Cited
- Travelers Ins. Co. v. Joachim, 315 S.W.3d 860 (Tex. 2010) (summary-judgment standard and de novo review)
- Melendez, 477 S.W.3d 309 (Tex. 2015) (TWCA retaliation causation and circumstantial-evidence framework)
- Parker v. Valerus Compression Servs., LP, 365 S.W.3d 61 (Tex. App.—Houston [1st Dist.] 2011) (but-for timing test and examples of circumstantial evidence of retaliatory motive)
- Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640 (Tex. 1996) (party opposing summary judgment must seek continuance by affidavit/verified motion when further discovery is needed)
- Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150 (Tex. 2004) (factors for reviewing denial of continuance and discretion analysis)