* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion

should not be published and is not precedent except under the limited circumstances

set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 96-11480

Summary Calendar

_______________

SANFORD L. MARSHALL,

Plaintiff-Appellant,

VERSUS

AT&T INCORPORATED,

Defendant-Appellee.

_________________________

Appeal from the United States District Court

for the Northern District of Texas

(3:94-CV-858-H)

_________________________

June 5, 1997

Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

Sanford L. Marshall appeals a summary judgment on his common

law battery and retaliatory discharge claims against AT&T, Inc.

(“AT&T”). Finding no error, we affirm.

I.
2

Marshall was employed by AT&T’s Calibration Laboratory as a

technician from 1977 until his discharge in March 1993. Beginning

in early fall 1992 and continuing until his discharge, Marshall

smelled an odor emanating from the laboratory, which odor he

characterized as “the smell of a dead dog.” Although Marshall

remained the sole laboratory member who could detect the smell,

AT&T conducted an analysis of the air-filtration system to no

avail. After Marshall continued to complain, AT&T hired an

independent firm to conduct an air-quality assessment in the

laboratory; again, the assessment revealed that the air quality was

“within accepted government and regulatory guidelines.”

In November 1992, Marshall discerned that the source of the

odor was the perfume worn by a co-worker, Retha Hansen. After

Hansen refused to refrain from wearing the perfume, Marshall began

making comments in her presence about the perfume’s foul smell,

including making faces when he walked past her, saying “phew” and

waving his hand in front of his face as he walked by, making jokes

about her perfume, and wearing a full-face respirator mask when

Hansen would enter the lab. 

Marshall was reprimanded by his supervisors both because his

actions were upsetting to Hansen and because they were affecting

negatively his ability to interact with others in the laboratory

and thus perform his job. Various co-workers also reported to

their supervisors that his behavior with respect to Hansen was
3

disrupting the work being performed in the laboratory. 

On February 25, 1993, Marshall filed a workers’ compensation

claim seeking remuneration for the adverse health consequences

attendant to his breathing the “dead dog” perfume. On March 11,

1993, Marshall was suspended pending further investigation of his

“disruption of the workforce and continued harassment of [Hansen].”

One month later, Marshall was informed that, effective March 11, he

was discharged for his disruption of the workforce and harassment

of Hansen, as well as for his history of other incidences of

harassment and disruptions. Marshall filed in November 1993 a

claim with the EEOC, alleging that AT&T’s failure to accommodate

his smell disability and its tacit acceptance of other co-workers’

harassment of Marshall constituted discrimination under the

Americans with Disabilities Act (“ADA”).

After receiving a right-to-sue letter from the EEOC, Marshall

filed the instant action alleging various state law torts and two

counts of impermissible retaliatory discharge. The district court

granted summary judgment on all claims.

II.

We review a grant of summary judgment de novo. See Hanks v.

Transcontinental Gas Pipe Line Corp., 953 F.2d 996, 997 (5th Cir.

1992). Summary judgment is appropriate “if the pleadings,

depositions, answers to interrogatories, and admissions on file,
 

1 AT&T points us to Leichtman v. WLW Jacor Communications, Inc., 634 N.E.2d

697, 699 (Ohio Ct. App. 1994), as an example of a case that has recognized

tobacco smoke as “particulate matter” that has the physical properties capable

of making contact and thus giving rise to a battery. We reserve comment on the

similarities or differences between tobacco smoke and perfume odors, save to note

that the Leichtman court’s treatment of tobacco smoke as “particulate matter” is

statutory in origin. See id.

4

together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled

to a judgment as a matter of law.” FED. R. CIV. P. 56(c).

A.

Marshall alleges first that the district court erred in

granting summary judgment on his state law battery claim.

According to Marshall, the chemicals contained in the perfume to

which he has an apparent sensitivity “offensively touched” his

person, thereby stating a claim for battery.

In Texas, a battery is “'the least touching of another person

willfully and in anger, by use of any part of the body of the party

committing the offense.'” Price v. Short, 931 S.W.2d 677, 687

(Tex. App.SSDallas 1996, no writ). Battery requires an offensive

touching only, not an intent to injure. See id. (citing Fisher v.

Carrousel Motor Hotel, Inc., 424 S.W.2d 627, 629-30 (Tex. 1967)).

Marshall has not brought to our attention, nor are we aware

of, any controlling cases that support his theory that the

“offensive touching” of his person by chemical particles emanating

from the perfume of another supports a claim for battery.1 Were we
5

to adopt Marshall’s suggestion, we would be creating a new cause of

action akin to a person-based nuisance theorySSi.e., that the

perfume vapors interfered unreasonably with Marshall’s possessory

interests in his own person. See, e.g., Watson v. Brazos Elec.

Power Coop., 918 S.W.2d 639, 644-45 (Tex. App.SSWaco 1996, writ

denied) (defining the tort of traditional land-based nuisance under

Texas law). We decline to do so. 

B.

Marshall next contends that the district court erred in

failing to conclude that he was terminated in violation of

§ 451.001 of the TEX. LABOR CODE (formerly TEX. REV. CIV. STAT. ANN.

art. 8307c (Vernon Supp. 1992)). According to Marshall, he was

fired in retaliation for filing a workers’ compensation claim.

Section 451.001, a statutory exception to Texas’s employmentat-will doctrine, prohibits an employer from discriminating against

or discharging an employee because he has filed a claim, hired a

lawyer to represent him in a claim, instituted or caused to be

instituted in good faith any proceeding under the Texas Workers’

Compensation Act, or testified or is about to testify in any such

proceeding. See Burfield v. Brown, Moore & Flint, Inc., 51 F.3d

583, 589 (5th Cir. 1995). An employee claiming retaliatory

discharge has the burden of demonstrating that his protected

conduct was such that, without it, the employer’s prohibited
6

conduct would not have occurred when it did. See Continental

Coffee Prods. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996). Thus,

an employer does not discriminate against an employee for filing a

workers’ compensation claim unless the employer’s action would not

have occurred when it did had the claim not been filed. See id.

The employee bears the initial burden of demonstrating the

causal link between the protected activity and his discharge. See

Swearingen v. Owens-Corning Fiberglass Corp., 968 F.2d 559, 562

(5th Cir. 1992). Circumstantial evidence sufficient to establish

a causal link includes (1) knowledge on the part of those making

the termination decision of the claim’s having been filed;

(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 others similarly

situated; and (5) evidence that the proffered reason for the

discharge was false. See Continental, 937 S.W.2d at 451. Once the

employee establishes this causal link, the employer must rebut the

showing of alleged discrimination by proffering a legitimate, nondiscriminatory reason for the discharge. See Swearingen, 968 F.2d

at 562. Where an employer proffers a legitimate, nondiscriminatory reason, and the employee fails to produce any

additional evidence of retaliatory motive, summary judgment is

appropriate. See Texas Division-Tranter, Inc., v. Carrozza,

876 S.W.2d 312, 313 (Tex. 1994).
7

Marshall’s summary judgment evidence supporting his contention

that his filing a workers’ compensation claim was a determining

factor in his discharge is weak at best. First, he asserts that

the temporal nature of his dischargeSSfifteen days after the filing

of his claimSSevinces retaliation. That a discharge post-dates the

filing of a claim by a certain number of days is not sufficient on

its own to demonstrate a retaliatory motive. See, e.g., Worsham

Steel Co. v. Arias, 831 S.W.2d 81, 82 (Tex. App.SSEl Paso 1992, no

writ) (reviewing the temporal nature of the discharge in the light

of other direct evidence supporting the employee’s retaliatory

discharge claim); Chemical Express Carriers, Inc., v. Pina, 819

S.W.2d 585, 590 (Tex. App.SSEl Paso 1991, writ denied) (same).

Second, even assuming arguendo that Marshall has demonstrated

adequately that the AT&T decisionmakers had knowledge of his having

filed a claim at the time they made the discharge decision (which

evidence AT&T attacks as conclusionary), this factor alone does not

establish an employee’s prima facie case of discrimination. See

Hogue v. Blue Bell Creameries, L.P., 922 S.W.2d 566, 571 n.5 (Tex.

App.SSTexarkana 1996, writ denied).

Finally, Marshall contends that his supervisors’ negative

attitude toward his apparent sensitivity to Hansen’s perfume evince

the requisite connection between his filing a claim and his

discharge. The allegedly incriminating evidence to which Marshall

points includes (1) that he was told by his supervisors not to wear
 

2 Marshall makes much of a March 11, 1993, memo in which Betsy Harrod, a

public relations manager, recommends his termination. We disagree with Marshall

that the memo evinces AT&T’s “negative attitude” toward his sensory condition.

To the contrary, it demonstrates that it is the consequences of his

conditionSSi.e., his continued harassment of Hansen and his ill-effect on the

rest of the group’s work productSSthat made his termination necessary.

8

during work an “unsightly” charcoal respirator to filter out the

perfume, but rather to wear a less obtrusive white surgical mask

that AT&T had provided free of charge; (2) that he was instructed

to refrain from complaining to and harassing Hansen regarding her

perfume; (3) that he was “harassed” by other non-supervisory coworkers who told him that he was upsetting Hansen and that doing so

was unproductive; and (4) that AT&T failed to take additional

actions to accommodate him, including conducting a third air study

in the laboratory, instructing Hansen not to wear her perfume, and

transferring him to another shift (after having already done so

once at his request).2

This evidence demonstrates AT&T’s negative attitude not toward

Marshall’s injured condition, but rather toward the effects of his

condition on his and others’ abilities to perform their jobs

satisfactorily. Marshall was terminated because he had a history

of poor work performance (noted in his evaluations as early as

1984), because he continued to harass Hansen after having been

counseled to stop, and because he was affecting worker morale in

the laboratory. In fact, at a meeting of technicians held on

March 5 (just six days before Marshall’s suspension and

termination), which meeting he refused to attend because of the
9

smell, his co-workers reiterated to their supervisor that his

harassment of Hansen and complaints about the smell were disrupting

the work being done in the laboratory and that “they were tired of

having to work with [Marshall] causing so much confusion/trouble.”

Whether Marshall disbelieves AT&T’s proffered reason for his

discharge, AT&T has put forth a legitimate, non-discriminatory

reason that not only is not contradicted by Marshall’s “negative

attitude” evidence but is in fact consistent with it. Marshall’s

“subjective beliefs [to the contrary] are no more than conclusions

and do not raise a fact issue precluding summary judgment in a

retaliatory discharge action under the Workers’ Compensation Law.”

See Continental, 937 S.W.2d at 452 (citation omitted).

C.

Marshall complains that the district court erred in granting

summary judgment on his claim of retaliatory discharge under the

ADA. The factual basis supporting Marshall’s ADA claim is

identical to that underlying his § 451.001 claim above.

To establish a prima facie case of impermissible retaliation,

a plaintiff must prove (1) that he is engaged in an activity

protected under title VII; (2) that an adverse employment action

occurred; and (3) that there is a causal connection between his

participation in the protected activity and the adverse employment

decision. See Equal Employment Opportunity Comm’n v. J.M. Huber
 

3 In fact, because Marshall must demonstrate, under title VII, that “but

for” his engaging in a protected activity he would not have been terminated, see

Ray, 63 F.3d at 435, whereas under § 451.001 he need only demonstrate that his

filing a workers’ compensation claim was a “determining factor” only, see

Swearingen, 968 F.2d at 562, Marshall’s inability to prove his § 451.001 claim

based upon identical facts forecloses any possibility of recovery under

title VII.

10

Corp., 927 F.2d 1322, 1326 (5th Cir. 1991). Once the prima facie

case is established, the burden shifts to the employer to produce

some legitimate, non-discriminatory reason for the adverse

employment action. See Ray v. Tandem Computers, Inc., 63 F.3d 429,

435 (5th Cir. 1995). If the employer is so successful, the burden

shifts to the plaintiff to prove that the employer’s reasons are

pretextual and that “but for” his participation in the protected

activities, he would not have been subject to the adverse action.

See id.

Because Marshall relies upon the same evidence of retaliation

in support of this claim as he does for the § 451.001 claim above,

we need not repeat our analysis.3 Even assuming arguendo that

Marshall has satisfied his burden of presenting a prima facie case

of retaliatory discharge, AT&T has carried its burden of proffering

a legitimate, non-discriminatory reason for his discharge.

Marshall has failed to put forth any additional evidence to satisfy

his burden of proving that AT&T’s proffered reasons are pretextual

and that, “but for” his filing of a claim with the EEOC, his employ
 

4 To the extent that Marshall relies upon the temporal nature of his

termination and his supervisors’ awareness of his smell disability to evince a

causal connection between his termination and his engaging in a protected

activity, we note that such evidence is sufficient to carry his burden to produce

a prima facie case only. See Payne v. McLemore’s Wholesale & Retail Stores,

654 F.2d 1130, 1141 n.13 (5th Cir. Unit A Sept. 1981). Once AT&T proffers its

legitimate, non-discriminatory reason for his discharge, he must then present

additional evidence to demonstrate pretext. 

11

with AT&T would not have been terminated.4

AFFIRMED.