IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

CARNEY ELDRIDGE, §

 §

Plaintiff, §

 § Civil Action No. 3:04-CV-2073-D

VS. §

 §

AMERICAN RESIDENTIAL SERVICES §

L.L.C. f/k/a RESCUE ROOTER, §

L.L.C., §

 §

Defendant. §

MEMORANDUM OPINION

 AND ORDER 

The court revisits this case to decide whether defendant is

entitled to summary judgment dismissing plaintiff’s retaliation

claim under Tex. Lab. Code Ann. § 451.001 (Vernon 1996). The court

holds that it is.

I

In a memorandum opinion and order filed July 19, 2006, the

court granted summary judgment dismissing, inter alia, the claim of

plaintiff Carney Eldridge (“Eldridge”) against defendant American

Residential Services L.L.C. f/k/a Rescue Rooter, L.L.C. (“ARS”) for

retaliation for filing a claim for workers’ compensation benefits,

in violation of the Texas Workers’ Compensation Act (“TWCA”), Tex.

Lab. Code Ann. § 451.001 (Vernon 1996). See Eldridge v. Am.

Residential Servs. L.L.C., 2006 WL 2035654, at *12 (N.D. Tex. July

19, 2006) (Fitzwater, J.) (“Eldridge I”). Because the court raised

sua sponte one ground on which it relied to dismiss the claim, it

permitted Eldridge to file an additional opposition response.

 

 Case 3:04-cv-02073-D Document 64 Filed 08/10/06 Page 1 of 10 PageID 762
- 2 -

Eldridge has done so, and the court now addresses the claim in

light of his response.

II

In deciding in Eldridge I whether ARS was entitled to summary

judgment dismissing the retaliation claim, the court held that

after Eldridge had established a causal link between his filing a

workers’ compensation claim and ARS’s alleged retaliatory act of

terminating his employment, ARS was obligated to rebut the alleged

discrimination by showing it had a legitimate reason for

terminating him. See id. at 9-10. If ARS met this obligation,

Eldridge was required to present evidence that raised a genuine

issue of material fact that he would not have been discharged but

for his assertion of a workers’ compensation claim. See id. at

*10. 

The court assumed arguendo that Eldridge had adduced

sufficient evidence for a reasonable trier of fact to find that he

was constructively discharged and that he had established the

historical facts that ARS was aware of his workers’ compensation

claim and later terminated him. Id. The court also raised sua

sponte that ARS had produced evidence of a legitimate reason for

terminating his employment: that, due to the nature of his injury,

Eldridge could no longer perform the essential functions of his

Service Technician position. Id. (citing Burfield v. Brown, Moore

& Flint, Inc., 51 F.3d 583, 590 (5th Cir. 1995) (per curiam)). In

 

 Case 3:04-cv-02073-D Document 64 Filed 08/10/06 Page 2 of 10 PageID 763
- 3 -

opposing Eldridge’s claim under the Americans with Disabilities Act

of 1990 (“ADA”), 42 U.S.C. § 12101 et seq., ARS had offered this

legitimate reason for its decision. 

ARS pointed to evidence that an essential function of the

Service Technician position was the ability to lift up to 100

pounds. Eldridge had a 50-pound lifting limitation, and he could

not perform the position without a helper to lift for him. In May

2003 Richard F. Haenke, D.O. (“Dr.Haenke”) had released Eldridge to

return to work with permanent restrictions, which included limiting

his time on his knees and not being required to lift over 50 pounds

regularly. Dr. Haenke also opined that Eldridge was qualified to

perform light duty work, including occasional lifting of 13 pounds,

frequent lifting of seven pounds, and no constant lifting. These

restrictions precluded Eldridge from performing an essential

function of the Service Technician position. Eldridge I, 2006 WL

2035654, at *10. Because the court had raised sua sponte that ARS

had met its burden of rebutting the alleged retaliation by showing

that Eldridge could not perform the essential functions of the

Service Technician position, it permitted Eldridge to file an

opposition response that demonstrates that the claim should not be

dismissed. Id.

The court then turned to the question whether Eldridge had

adduced evidence that would permit a reasonable trier of fact to

find that ARS’s proffered reason was pretextual. It concluded that

 

 Case 3:04-cv-02073-D Document 64 Filed 08/10/06 Page 3 of 10 PageID 764
- 4 -

he had not because, apart from discussing generally the legal

standards that applied to a retaliation claim and to adjudicating

a summary judgment motion, his two-sentence opposition argument was

not supported by the citation of summary judgment evidence. Id. at

*11. Because he relied instead on the assertions of his brief, he

was relegated to unsworn pleadings that did not constitute summary

judgment evidence and were insufficient to withstand summary

judgment. Id. 

Based on its review of the record, the court also held that a

reasonable trier of fact could not find that ARS had retaliated

against Eldridge for filing a workers’ compensation claim. Id. at

*12. The summary judgment evidence would only enable a reasonable

finding that Eldridge filed a workers’ compensation claim in

October 2002 and began receiving medical care in response, that ARS

approved workers’ compensation leave beginning December 16, 2002

and ending when Eldridge was released by his treating physician,

that Eldridge underwent surgery, a period of recuperation and

physical therapy, and returned to work, and that it was not until

September 2003, almost eleven months after he filed his claim, and

after he had undergone surgery, post-operative care, and

rehabilitation, that ARS discharged him. Id. The court concluded

that a reasonable jury could not find from this evidence that ARS

retaliated against Eldridge for filing the workers’ compensation

claim. Id.

 

 Case 3:04-cv-02073-D Document 64 Filed 08/10/06 Page 4 of 10 PageID 765
1Eldridge does not cite new authorities in his latest

response. The authorities that he appears to rely on in his

original response pertain to an employer’s obligations under the

ADA, not § 451.001. See P. Mar. 13, 2006 Br. 16-19.

- 5 -

III

Eldridge maintains in his response that ARS is not entitled to

summary judgment on his retaliation claim. 

A 

Eldridge argues that Burfield and the Texas case it cites,

Schrader v. Artco Bell Corp., 579 S.W.2d 534 (Tex. App. 1979, writ

ref’d n.r.e.), are distinguishable, because he was never given the

opportunity to show that he could perform the essential functions

of the job he had before his injury. He maintains that ARS

withdrew the agreed-upon reasonable accommodation of allowing him

to demonstrate that he could perform the essential functions of his

job by working on a commission basis with a full-time helper.

Eldridge posits that ARS violated an obligation to engage in good

faith in a flexible, interactive process with a disabled employee

by withdrawing in bad faith the accommodation to which it had

agreed. He also asserts that ARS violated the good faith process

and obligation under § 451.001 to allow him to demonstrate that he

could perform the essential functions of his position.

Eldridge has not cited any authority that holds that, under

Texas law generally or § 451.001 particularly, ARS was obligated to

engage in an interactive process with him.1

 Burfield clearly

 

 Case 3:04-cv-02073-D Document 64 Filed 08/10/06 Page 5 of 10 PageID 766
- 6 -

interprets Texas law to provide that an employer can terminate an

employee who sustains a job-related injury that prevents him from

performing the essential functions of his position. See Burfield,

51 F.3d at 590. Nor could a reasonable trier of fact find that,

even had ARS engaged in such a process and allowed Eldridge to

demonstrate that he could perform the essential functions of his

position, he could have done so. The summary judgment record shows

that an ARS Service Technician——not one who is assisted by a

helper——must be able to lift up to 100 pounds and that Eldridge had

a 50-pound lifting limitation. The gravamen of Eldridge’s case is

that ARS should have accommodated him by allowing him to continue

his employment with the assistance of a helper who could, among

other things, assist him in lifting heavy objects. He has

therefore conceded that he could not by himself perform the

essential functions of his position

B

Eldridge also maintains that he has adduced sufficient

evidence to establish a causal link between his termination and the

filing of his workers’ compensation claim. He urges that this

evidence consists of proof that ARS knew he had filed a workers’

compensation claim, ARS showed a negative attitude toward his

injured condition by withdrawing in bad faith the accommodation to

which it had agreed, and ARS violated company policy and a legal

duty of giving an employee a reasonable opportunity to show he

 

 Case 3:04-cv-02073-D Document 64 Filed 08/10/06 Page 6 of 10 PageID 767
- 7 -

could perform the essential functions of the job with reasonable

accommodation by in bad faith withdrawing the accommodation it had

agreed to extend.

An employee claiming discharge in violation of

§ 451.001 has the burden of at least

demonstrating a causal link between the

discharge and the filing of the claim for

workers’ compensation benefits. While the

employee can meet this burden without showing

that he was fired solely because of the filing

of the workers’ compensation claim, he must

show that the filing of the claim was at least

a determining factor in the discharge.

Burfield, 51 F.3d at 589-90 (citing, inter alia, Pope v. MCI

Telecomms. Corp., 937 F.2d 258, 265 (5th Cir. 1991)). For the

reasons explained in Eldridge I, Eldridge has not pointed to

evidence that would permit a reasonable trier of fact to find in

his favor, i.e., that the filing of the claim was at least a

determining factor in ARS’s decision to terminate his employment.

According to the summary judgment record, Eldridge filed a

workers’ compensation claim in October 2002. Eldridge I, 2006 WL

WL 2035654, at *12. He began receiving medical care in response,

and ARS approved workers’ compensation leave for him beginning

December 16, 2002 and ending when he was released by his treating

physician. Eldridge underwent surgery, a period of recuperation

and physical therapy, and returned to work. ARS never took adverse

action against him during this period; instead, it approved medical

care for his injury. It was not until September 2003, almost

 

 Case 3:04-cv-02073-D Document 64 Filed 08/10/06 Page 7 of 10 PageID 768
2

See Burfield, 51 F.3d at 590 (noting that Texas courts

frequently look to temporal proximity between protected activity

and adverse employment action for circumstantial evidence of

retaliatory motive, and holding that long period of time (15 to 16

months before termination) that elapsed between filing of claim and

termination militated against finding of retaliation).

3This assertion exceeds the scope of the argument he presented

in his initial responsive brief. There he relied only on his

termination as the basis for his § 451.001 claim. See P. Mar. 13,

2006 Br. 21 (contending that “[i]n the instant case, the fact is

that Eldridge filed a workers’ compensation claim, and while he was

on workers’ compensation, ARS arbitrarily terminated Eldridge

without explanation, withdrawing his reasonable accommodation.

This should be sufficient to send this issue to trial.”). The

court will assume arguendo that Eldridge did not waive this new

argument and that the court should allow him to present it.

- 8 -

eleven months after he filed his claim,2 and after he had undergone

surgery, post-operative care, and rehabilitation, and returned to

work with physician-ordered restrictions that prevented him from

performing all the essential functions of his position as a Service

Technician, that ARS discharged him. Id. A reasonable trier of

fact could not find from this evidence that ARS retaliated against

Eldridge for filing the workers’ compensation claim. Id.

C

Eldridge also maintains for the first time that ARS violated

§ 451.001 by withdrawing the opportunity for him to demonstrate

that he could perform the essential functions of his job after a

work-related injury.3 For the reasons explained supra at § III(B),

a reasonable trier of fact could not find that his filing the

workers’ compensation claim was a determining factor in ARS’s

decision to withdraw this opportunity. A reasonable trier of fact

 

 Case 3:04-cv-02073-D Document 64 Filed 08/10/06 Page 8 of 10 PageID 769
4

It was not until July 2003 that ARS advised him that it was

not willing to accommodate his disability because it felt doing so

imposed a hardship. See Eldridge I, 2006 WL 2035654, at *2. The

court will use the June date because it arguably benefits Eldridge

as the nonmovant.

- 9 -

would be required to disregard the fact that, after Eldridge filed

the claim in October 2002, ARS took no adverse action against him.

Instead, it approved workers’ compensation leave for him beginning

December 16, 2002 and ending when he was released by his treating

physician. During the periods when he underwent surgery,

recuperated, and underwent physical therapy, ARS took no adverse

action but instead approved medical care for his injury. It was

not until June 2003, after Eldridge had returned to work with

physician-ordered restrictions that prevented him from performing

all the essential functions of his position as a Service

Technician, that ARS informed him it would not allow him to work on

commission with a helper.4 A reasonable trier of fact could not

find based on this evidence that the filing of his workers’

compensation claim in October 2002 claim was a determining factor

in ARS’s decision in June 2003 to withdraw the opportunity for

Eldridge to demonstrate that he could perform the essential

functions of the Service Technician job.

* * *

Accordingly, having considered Eldridge’s response, the court

holds that ARS is entitled to summary judgment dismissing his

retaliation claim under § 451.001. The court enters judgment in

 

 Case 3:04-cv-02073-D Document 64 Filed 08/10/06 Page 9 of 10 PageID 770
- 10 -

favor of ARS dismissing this case with prejudice for the reasons

set out in Eldridge I and this memorandum opinion and order.

SO ORDERED. 

August 10, 2006.

_________________________________

SIDNEY A. FITZWATER

UNITED STATES DISTRICT JUDGE

 

 Case 3:04-cv-02073-D Document 64 Filed 08/10/06 Page 10 of 10 PageID 771