### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-12-00658- CV

Daniel Valdez, Appellant

v. Rec on Services, Inc., Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 53RD J UDICIAL DI STRICT NO. D-1 -GN-1 0-0 0255 7, H ONO RAB LE RHO NDA HURLEY , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
Appellant Daniel Valdez s ued appellee Recon S ervic es, I nc., his former employ er, alleg ing wrong ful termination in reta liation for his having filed a worke rs’ compensa tion claim.
Recon filed a motion for summary judgme nt, which the trial court g rante d, dismiss ing Valdez’s suit. Valdez appe als, arg

uing tha t fac t issues remained a s to e ach element of his claim and that the trial court ther efor e er

red in g ranting Recon’s motion. We aff irm the trial cour

t’s judgme nt.

F actual and Proc edural Backgroun d Valdez was a “roll-off” truck drive r for Recon, a nd while he was in the course and
scope of his employ

ment on a larg e construction projec t, his truck was str u ck by another vehicle, totalling the other vehicle and rende ring Valdez’s vehicle inopera ble. Shortly afte r the acc ident, two other Recon employ ees, Marc ell Ellison and L alo Pena, arr ived on the scene , and the parties dispute what happene d next. Valdez alleg es t h at E l l i s on initially told him to ride with Pena to a medicalclinic and then asked him to sign a form that was a “re fusal to take a drug test.” Valdez alleg es that

he ref used to sign the form and told Ellison he was not ref using to take a drug test, and that Ellison then g rew upset, took Valdez’s company phone, told him to have his wife come to pick him up, and drove awa

y , leaving him on foot and assuming he had been fired. Recon, on the other hand, alleg es that Valdez refused to take a drug test, despite being cautioned t hat t he refusal would result i n his immediate termination. After Valdez continued to ref use, he was fired and instructed that Recon employ ees could not drive him to his persona l veh i cl e, re q u i ri ng him to call his wife for a ride.
After his wife picked him up, Valdez h ad h er d rive him to an emer g ency room beca use he was having back pain. He did not take a drug test at the emer g ency room. Va l d ez filed for worke rs’
compensa tion benef

its one month lat er , an d Recon’s worke rs’ compensa tion car rier has paid for medical tre atment and wa g e re place ment benef its. Valdez su ed, alleg ing that he was fired in reta liation for having filed for worke rs’
compensa tion benefits. See Tex. L ab. Code § 451.001. Rec on responde d with a no-e vidence and traditional motion for summ ary judgme nt. See Tex

. R

. C i v . P. 166a. Recon asserted that Valdez could not prese nt evidenc e of a causa l link b et we en his filing for worke rs’ compensa tion and his firing . I t further

contende d that it fired Va ldez be cause he violated company policy by ref using to take a post-acc ident drug test and that Valdez could not provide evidenc e showing that Recon’s

rea son for the firing was false. Valdez filed a response and prese nted evidenc e that he arg ued raised issues of fa ct as to eve ry

element of

his claim. The trial court held a hearing and gra nted R econ’ s motion, dis missing Valde z’s claims.

2Appli cable Law
A n o -evide nce motion for summary judgme nt essentially seeks a pre- trial direc ted verdic t, King Ranch, Inc. v. Chapman , 118 S.W .3d 742, 750 (Tex. 2003), and if the opposing party does not pr oduce e vidence raising a g enuine issue of materia l f act in r esponse, the trial court must
g rant the motion, Te x . R. Civ. P . 166a(i). We view the evidenc e in the light most fa vorable to the non-movant and disre g ard c ontrary evidenc e and inf

ere nces. King Ranch , 118 S.W .3d at 751. A per son may

not be fire d or otherw ise discriminated a g ainst if he has filed a g ood
faith worke rs’ compensa tion cl ai m , h i red a lawy er to repr esent him in a worke rs’ compensa tion claim, instit uted a worke rs’ compensa tion proce eding in g ood faith, o r t es t i fied (or is about to testify ) in a worke rs’ compensa tion proce eding

. Tex. L ab. Code § 451.001. An employ ee alleg ing
wrong ful termination under section 4 5 1

. 0 0 1 b ear s the burden of showing a causa l link betwee n his firing and his filing of a worke rs’ compensa tion claim. Benne rs v. Blanks Color Imaging, Inc. , 133 S.W .3d 364, 369 (Tex. App.—Dallas 2004, no pet.); see Tex. L ab. Code § 451.002(c) (employ ee has burden of proof)

. The plaintiff must show that b u t for the filing of his compensa tion claim, his termination would not have occur red when it did. Continental Coffee Prods. Co. v. Cazarez , 937 S.W .2d 444, 450 (Tex. 1996) (quoting Texas Dep’ t of Human Servs. v. Hinds , 904 S.W .2d 629,
636 (Tex. 1995)); Benne rs , 133 S.W .3d at 369. A causa l link betwee n cl ai m and firing may be established by

circ umstantial evidence showing :
( 1 ) k n o w le d g e o f th e c o mp e n s a ti o n c la im b y th o s e ma

k in g th e d e c is io n o n te r

mi n a ti o n ; (2) expression of a neg ative attitude toward the employ ee’ s injured co n d i tion; (3) failure to adher e to established company policies; (4) discriminatory trea tment in compar ison to simil arly situated employ ees; and (5) evidenc e that the stated rea son for the disc harg e wa s false.

3Benne rs , 133 S.W .3d at 369 (c iting Cazarez , 937 S.W .2d at 451).

Did Valdez Establi sh Th e Re qui red Causal Lin k?
Recon a sserted tha t there w as no evide nce of a causal l ink betwee n Valdez’s filing
of a worke rs’ compensa tion claim and hi s firing

. I t contende d that Valdez could not show any evidenc e that Recon had knowledg e of a compensa tion claim, expressed a neg ative attitude toward his injury , deviated from its established company policies, or trea ted other simil arly situated employ ees differ ently

. Be cause we ag ree t hat there is no evidenc e of a causa l link, starting with whether Recon or its employ ees knew that Valdez was injured or in t en d ed t o fi l e a worke rs’
compensa tion claim, we ag ree that summary judgme nt was prope r. The only evidenc e in t h e re co rd that perta ins to whether Recon knew Valdez was injured or would be seeking worke rs’ c ompensation is as follows:

• Ellison’s deposition testimony that she drove to the s cene afte r Va ldez called to report

the acc ident and that she repe at edly asked Valdez, both on the phone and in person, whether he or any one else was injured. Valdez told her that he was not injured and that one other man’s fac e was bloodied but that the man had ref used trea tment. Elli s on said that when she arr ived on the scene , David Danbe rg , another company ’s job superintende nt who was p re s en t wh en the acc ident occur red, told her he had made Valdez sit down on a cur

b and had g iven him some water

. Ellison aga in asked Va ldez if he was sure he was okay , and he said, “Ye s, I ’m fine,” and, “[Y]es, I ’m okay .” When Pena arr ived at the scene , Valdez g ot into Pena’s air-c onditioned truck, which require d 1 him to climb into a cab high off the g round, and went with Pena to complete some tasks on the job site for betwee n thirty and six ty minutes. Ellison then spoke to Valdez, telling him he had to g o take a drug test. Valdez ref used, despite being cautioned that he would b e fi re d. Ellison spoke by telephone to Ross Bie l, Recon’s opera tions manag er, and informed Bie l that Valdez had been offe red medical car e, althoug h he did not appea r to be injured, and that he had ref used trea tment at the scene and ref used to g o with Ellison

The a ccide nt occur

red la te in the af

ternoon in late June 2010. 1
4to a clinic for a drug test. After Valdez ref used the test ag ain, he was fired, and Ellison told him to clea

n his belong ings out of the truck befor e it was towed awa y and to call his family to come and g et him. Val d ez called his wife and beca use he could not explain exactly wher e he was, he said he would walk to a convenie nce store betwee n one-qua rter and one- half mile aw ay

and mee t her ther e.

• Bie l’s deposition t es t i mony that Ellison told him that Valdez “wa s ref using to communicate w ith any

body ” and ha d ref

used t o take a

drug test. Biel spoke to Valdez to clar ify that Valdez was not injured and to remind him that company policy require d an immediate drug test. Bie l said, “I t was a long pause. I believe, to the best of m y knowledg e, he said that he did not think that he could take a drug test. And then I went on to clar ify that if he did not take a drug test, to make sure that he did under stand that he would be terminated. And then I repe ated to ask him ag ain. And he said that he was not g oing to take a drug test.” After he ref used ag ain, Bie l told Valdez that he was fired.

• Pena’s deposition testimony that he arr ived on the scene of the acc ident and immediately

went to see if Valdez neede d help. Pena was asked whether Valdez said he was hurt, and Pena answe red, “No. And I asked him about three times. I offe red him water

. . . . Well, he was there , y ou know. [He] was—ne rvous, almost cr y i n g. I asked him, he was all rig ht? He need something? He needs water ? I tell him, h ey , ev er y t h i n g g onna be all rig ht.” When Pena aske d if he was all rig ht, V aldez “didn’t say nothing. He was, like, just nervous—too nervous.” Valdez did n o t appear to be injured or to have difficulty climbing up into the cab of Pena’s truck, which is “pre tty high. I t’s about 5 fee t. I mean, the floor g ets to y our chest.” E llison asked Pena to drive Valdez to the medical clinic that Recon uses f

or its drug testing, but Va ldez refuse d.

• Valdez’s deposition te stimony in w hich he said that none of the e merg ency responde rs asked if he neede d medical trea tment and that he did not rec all telling any one at the scene that he was injured. Valdez also testified that althoug h Ellison did not ask him if he had been injured, she i nitially told him to g o to a medical clinic wit h Pena, but befor e they could leave , the job supervisor asked Valdez to help “re locate a couple of box es” on the job site. When the supervisor made his reque st, Valdez said, “I ’m kind of, like, wanting to g o to the doctor, but let’s just g et h er done and g et it—ge t it over with,” so he and Pena moved the box es. Valdez then told Pena he wanted to help the wre cker driver who was try ing to load Valdez’s inopera ble vehicle, but “[Pena] say s, ‘No, y ou stay put. Don’t do any

thing.’ Every

body was telling me not to do nothing the whole ti me I was there

. ‘Don’t move. Sit down. Don’t g et up.
. . . Be still .’ I ’m in shock. I ’m in shock. And [P ena] say s, ‘You stay put. Don’t—I ’ll do it. I ’ll take car e of it.’” Asked whether Pena and Danbe rg kept asking him to sit down beca use they believed he might be injured or for any other re as o n , Valdez answe red, “I would think that whene ver there ’s an acc ident, y ou don’t want people up and about, moving around, e specia lly afte r they ’ve been in a n acc ident. . . . That would just be common sense.”

5• Valdez’s deposition testimony in which, in answe r to whether he g ave any indication of being hurt while at the scene , he said, “Other than making fac es like y ou—painful, like (desc riptive sound) and, like, making fac es, that’s about it, probably .” He also said Pena “just wanted t o get m e t o m ed—to t he clinic. He wanted to g et m e to the clini c to g et me trea tment. That’s what he was conce rned about.” Asked whether he knew he had to take a post-acc ident drug test, Valdez said, “I was hurting rea l bad. All I just wanted was trea tment,” and he decide d to seek medical trea tment beca use “something wasn’t fee ling rig ht in my back. I t w as starting to bur n.” Valdez also testified that he had not spoke n to any one at Rec on since the da y of the a ccide nt.

• Valdez’s cla im for worke rs’ c ompensation, dated one month afte r t he accident, stating

that he was injured on the job, that he informed Recon of his injury three day s later, and that Pena, Ellison, and Danbe rg wer e witnesses to the a ccide nt.

Valdez assert s t h at the evidenc e shows Recon knew he was injured and would be filing for worke rs’ compensa tion beca use Ellison told him to ride with Pena to a medical clinic. He further contends that an infere nce can be draw n that he was fired for seeking worke rs’ compensa tion beca use Ellison g rew ang ry when he ref used to sign the form and then i n d i ca t ed he was fired by taking his company phone and leaving him on foot. Howeve r, there is no evidenc e in this rec ord to support Valdez’s asser

ti on that any one from Recon knew he had been injured in the acc ident or would seek w orker s’ compensa tion benefits.

Valdez s ay s Recon was “on noti ce” that he wa s injured because he was “in s hock” and beca use he showed throug h sounds and “ma k i n g fac es” that he was in pain, but there is no evid ence that Valdez showed any signs of shock or that any one at the scene , much less any one associat ed wi t h Recon, saw any indication that he was in pain. He did not rec eive any trea tment from the firef

ighte rs or ambulance personne l who responde d to the acc ident, h e cl i m b ed up into
Pena’s truck and acc ompanied Pena as he finished some work, he started to help the wre cker driver position his inopera

ble vehicle befor e Pena stopped him, and he ag ree d to walk betwee n one-qua rter

6an d o ne-ha lf a mile to meet his wife afte r the acc ident. Fur ther, when he arr ived at t h e m ed i ca l clinic, despit e knowing that company policy require d him to take a post-acc ident drug test, he did
not seek to take one, and there fore he cannot show that Recon’s proff ere d rea son for his firing

—that he did not take a

drug test as re quired—wa s false.
As for Valdez’s asser

tion that knowledg e of his injury is shown by Ellison’s stating
that Valdez should g o to a medical clinic with Pena, Ellison and Pena testified that Valdez was supposed to g o to the clinic for the post-ac cident drug test, not beca use either of them believe d he

was injured. I ndeed, Ellison testified that Valdez repe atedly said he was not hurt, Pena said Valdez

never said he was hurt when asked, and Valdez did not tell any one at the scene that he was hurt. He filed for worke rs’ compensa tion one month later and, al t h o u gh h e s tated in his form that he had informed Recon of his injury three day s afte r t h e acc ident and his firing , he testified that he had

never spoken to any one at Rec on since the da y of the a ccide nt. Valdez di d not produce evidenc e showi ng that at t he ti me he was fired, R econ had knowledg e that he was injured or would be filing f or worke rs’ c ompensation, and it is undisputed
that Valdez did not take a drug test afte r the acc ident. Nor is there any other circ umstantial evidenc e
to support a causa l link betwee n Valdez’s seeking worke rs’ compensa tion and his being fired. See
Benne rs , 133 S.W .3d at 369 (ca usal link may be established by circ umstantial evidenc e of decisionmaker ’s knowledg e of compensa tion claim, employ er’ s neg ative attitude toward injury , violation of
company policies, disparate trea tment of simil arly situated employ ees, or evidenc e that stated rea son for f iring was fa lse).

7Conclusion
On this re cord, there is no evidenc e that, but for Valdez’s seeking worke rs’
compensa tion benef

its, he would not have been fired, an element nece ssary to support an alleg ation
of reta liatory conduct under section 451.001. See Cazarez , 937 S.W .2d at 450-51; Benners , 133
S.W .3d at 369. The trial court did not err in g ranting Recon’s motion for summary judgme nt on the
g rounds that Valdez did not show a causa l connec tion betwee n his filing for worke rs’ compensa tion and his firing . We affir

m the trial court’ s judgme nt.

__________________________________________ David Pury ear , J ustice
Be fore J ustices Pury ear , Pemberton, and Rose
Affir med Filed: Aug ust 20, 2014

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