Opinion filed April 2, 2020

In The

Eleventh Court of Appeals 

__________

No. 11-18-00111-CV

__________

GARRETT MARTIN, Appellant

V.

FASKEN OIL AND RANCH LTD., Appellee

On Appeal from the County Court at Law No. 2

Midland County, Texas

Trial Court Cause No. CC18845

M E M O R A N D U M O P I N I O N

This is an appeal from a summary judgment granted in favor of Appellee, 

Fasken Oil and Ranch Ltd., in a suit in which Appellant, Garrett Martin, sought to 

recover damages for retaliatory discharge under the Texas Workers’ Compensation 

Act. See TEX. LAB. CODE ANN. § 451.001 (West 2015). In a single issue, Appellant 

argues that the trial court erred when it granted Appellee’s motion for summary 

judgment. We affirm.
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Background Facts

In September 2014, Appellant began working for Appellee. As of January 

2015, Appellant was working in the pipe yard, which required him to inspect pipes 

used for oil production and load them onto storage racks, which were stacked as high 

as seven feet or more. By nature of his job position, Appellant was at times required 

to help load pipes as large as seventeen inches in diameter and thirty-five feet in 

length, which can weigh up to 700 pounds.

In March 2015, Appellant suffered a non-work-related injury to his knee while 

weightlifting. Accordingly, Appellant was placed on leave of absence until he 

returned to work in July. Upon his return, Appellant was placed on light duty work 

with restrictions from his doctor that prohibited him from climbing or lifting, which 

gradually reduced as his injury healed. On Appellant’s first day back at work, 

Tommy Taylor, Appellee’s Director of Oil and Gas Development, further instructed 

Appellant to comply with the restrictions from his doctor and to refrain from 

climbing and lifting.

On Tuesday, September 15, 2015, Appellant injured his back while he and 

two other men were loading pipe onto a forklift. According to Appellant and several 

of Appellee’s employees, the forklift operator motioned at Appellant and the two 

other men with three fingers, signaling for all three men to lift the pipe onto the 

forklift. Nevertheless, Appellant proceeded to lift the pipe by himself over express 

objections by his coworkers warning him that he could injure his back by lifting the 

pipe alone. Appellant then proceeded to finish his shift without pain but was unable 

to get out of bed the next morning.
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On September 17, Appellant informed Taylor that he had injured his back 

while moving a pipe, and Taylor asked Vince Hancock, Appellee’s safety 

coordinator, to start an investigation into the cause of Appellant’s injury. Through 

Hancock’s investigation, Taylor learned that Appellant had moved the pipe by 

himself despite his medical restrictions and the admonitions of his coworkers. 

Importantly, Appellant’s e-mail to Taylor, notifying him of the injury, omitted the 

fact that Appellant had lifted the pipe by himself—a decision he later admitted was 

unsafe.

After injuring his back, Appellant did not return to work until Monday, 

September 21, 2015. When he arrived at work on the 21st, he was instructed to go 

meet with Hancock and Jimmy Carlile concerning his injury. According to 

Appellant, both Hancock and Carlile instructed Appellant that they could not tell 

him how to handle his injury. Carlile, however, also allegedly told Appellant about 

an employee who had injured his hand at work and took care of the medical expenses 

himself because he knew he caused his own injury. Appellant took Carlile’s 

comments to mean, “[b]asically, do not have a worker’s comp claim.” Later that 

afternoon, Appellant decided he wanted to file a workers’ compensation claim, 

which Appellee then reported to its insurance carrier.

The next day, Appellant was observed climbing on top of pipe racks despite 

having been told to stay on the ground by more than one individual. On Wednesday, 

September 23, 2015, Taylor informed Appellant that he was being terminated in light 

of his “unsafe work practices, his inability to follow instructions and his 

untruthfulness and lack of candor regarding the details of the incident that occurred 

on September 15, 2015.”
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Appellant filed the current cause of action on July 19, 2016, alleging that 

Appellee terminated him for filing a workers’ compensation claim. Appellee later 

filed a combined no-evidence and traditional motion for summary judgment, which 

the trial court granted. This appeal followed.

Analysis

On appeal, Appellant argues that the trial court erred when it granted 

Appellee’s motion for summary judgment. We review a summary judgment 

de novo. Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 481 (Tex. 2015). In our 

review, we take as true all evidence favorable to the nonmovant, indulge every 

reasonable inference in favor of the nonmovant, and resolve any doubts in the 

nonmovant’s favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 

2005).

In this case, Appellee asserted both no-evidence and traditional grounds in its 

motion for summary judgment. When parties move for summary judgment on both 

no-evidence and traditional grounds, we first consider the no-evidence grounds. 

Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). If the nonmovant 

fails to overcome the no-evidence motion, there is no need to address the challenges 

to the traditional motion. Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 

2013). Accordingly, we first review claims under the no-evidence standard, and any 

claims that survive the no-evidence review will then be reviewed under the 

traditional standard.

To defeat a no-evidence motion, the nonmovant must produce evidence 

raising a genuine issue of material fact as to the challenged elements. See Ridgway, 

135 S.W.3d at 600. A genuine issue of material fact exists if the evidence “rises to 

a level that would enable reasonable and fair-minded people to differ in their 

conclusions.” Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 
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1997) (quoting Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995)). 

The evidence does not create an issue of material fact if it is “so weak as to do no 

more than create a mere surmise or suspicion” that the fact exists. Kia Motors 

Corp. v. Ruiz, 432 S.W.3d 865, 875 (Tex. 2014) (quoting Ridgway, 135 S.W.3d at 

601).

In this case, Appellee’s no-evidence motion for summary judgment alleged 

that Appellant had not established a causal connection between his termination and 

the filing of his workers’ compensation claim. The motion additionally alleged that 

Appellant had no evidence to rebut Appellee’s evidence that the decision to 

terminate Appellant was non-retaliatory.

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, (3) instituted or caused to be instituted 

in good faith a workers’ compensation proceeding, or (4) testified or is about to 

testify in a workers’ compensation proceeding. LAB. § 451.001. An employer that

violates this statute is subject to a retaliation claim—an exception to the traditional 

“employment at will” doctrine. Kingsaire, Inc. v. Melendez, 477 S.W.3d 309, 312 

(Tex. 2015) (quoting Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 453 

(Tex. 1996)).

To succeed on a retaliation claim, an individual must show that the 

termination would not have occurred when it did apart from the filing of the

employee’s workers’ compensation claim. Id. (citing Cont’l Coffee, 937 S.W.2d at 

450); Echostar Satellite L.L.C. v. Aguilar, 394 S.W.3d 276, 286 (Tex. App.—El Paso 

2012, pet. denied). An employee generally may—and oftentimes must—rely on 
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circumstantial evidence to prove causation. Kingsaire, 477 S.W.3d at 312. Such 

circumstantial evidence may 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 discharge was false.

Cont’l Coffee, 937 S.W.2d at 451. Additionally, the temporal proximity of the 

termination to the date of the injury or claim may also be considered as 

circumstantial evidence of a retaliatory firing. Echostar Satellite, 394 S.W.3d at

288. While no one factor is determinative and a plaintiff need not produce evidence 

on every factor, there must be “sufficient circumstantial evidence on a majority of 

these factors.” Armendariz v. Redcats USA, L.P., 390 S.W.3d 463, 469 (Tex. App.—

El Paso 2012, no pet.).

If the employee is able to establish a causal link between the termination and 

the filing of a workers’ compensation claim, the burden shifts to the employer to 

provide evidence of a non-retaliatory reason for the termination. Terry v. S. Floral 

Co., 927 S.W.2d 254, 257 (Tex. App.—Houston [1st Dist.] 1996, no pet.). If the 

employer is able to provide such evidence, the burden shifts back to the employee 

to produce controverting evidence. Tex. Div.–Tranter, Inc. v. Carrozza, 876 S.W.2d 

312, 314 (Tex. 1994). If the employee fails to produce additional evidence rebutting 

an employer’s evidence of a non-retaliatory termination, the employer is entitled to 

summary judgment. Id.

In this case, Appellant’s claim rests entirely on the fact that he was fired two 

days after he filed his workers’ compensation claim and on his subjective 

interpretation of comments made by Carlile. Temporal proximity alone, however,
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is insufficient to create an issue of fact, and Appellant’s assertion that Carlile did not 

want him to file a workers’ compensation claim is no more than a conclusion and is 

not competent summary judgment evidence. See id.; Willis v. Nucor Corp., 282 

S.W.3d 536, 546 (Tex. App.—Waco 2008, no pet.).

Other than the temporal proximity and the statements of Carlile, Appellant 

himself acknowledged during his deposition that he could not produce sufficient 

circumstantial evidence on a majority of the Continental Coffee factors:

Q. Do you have any personal knowledge as to who made the 

decision to end your employment with Fasken?

A. No, sir.

Q. Do you have any personal knowledge as to who participated 

in making the decision to end your employment?

A. No, sir.

Q. Do you have any personal knowledge of what information 

was provided to the person making the decision to end your 

employment at Fasken?

A. No, sir.

Q. Do you have any personal knowledge of what information 

was relied on by the person making the decision to end your 

employment at Fasken?

A. No, sir.

Q. Can you identify any policies or procedures at Fasken that the 

company didn’t comply with in separating your employment?

A. No, sir.

Q. Did anybody ever express a negative attitude towards your 

injury?

A. No, sir.
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Q. Can you identify any facts for me that cause you to believe 

that the reason Fasken has provided in this lawsuit as to why it separated 

your employment is false, untrue?

A. Facts?

Q. Let me rephrase it for you. Can you identify any facts that 

cause you to believe that the reason Fasken has given for its decision to 

separate your employment in this lawsuit is false?

[APPELLANT’S COUNSEL]: Objection; form.

A. No, I can’t give you any facts.

Q. Can you identify any other employee who did not follow the 

instructions of Tommy Taylor, and who never had a workers’ 

compensation claim at work who wasn’t terminated?

A. No, sir.

Because Appellant failed to produce any summary judgment evidence that would 

call into question Appellee’s non-retaliatory explanation, the trial court did not err 

in granting Appellee’s motion for summary judgment. See Carrozza, 876 S.W.2d 

at 314; Willis, 282 S.W.3d at 555. Accordingly, we overrule Appellant’s sole issue.

This Court’s Ruling

We affirm the judgment of the trial court.

KEITH STRETCHER

JUSTICE

April 2, 2020

Panel consists of: Bailey, C.J.,

Stretcher, J., and Wright, S.C.J.1

Willson, J., not participating.

1

Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, 

sitting by assignment.