By Marjorie Johnson, J.D.
Reversing judgment as a matter of law to an employer at the close of evidence at trial, the Fifth Circuit ruled that a jury should have decided whether an employee who was fired two weeks after suffering a work-related injury proved a causal connection in his claim of workers’ compensation retaliatory discharge under Texas law. In addition to the “stark temporal proximity,” the record suggested that the employer did not follow its progressive discipline policy, gave shifting explanations, and had previously fired employees who filed workers’ compensation claims. There was also evidence that the decisionmaker placed the employee in an “invented” position with no training, engaged in “odd and suffocating behavior,” and made comments indicating his hostility toward the employee’s workers’ compensation claim (Cristain v. Hunter Buildings & Manufacturing, L.P., November 14, 2018, Haynes, C.).
Work-related injury. The employee was hired in August 2014 as a “helper” and his job duties included painting, maintenance, and cleaning. On February 5, 2015, he was injured when a scaffold he was using while cleaning a ceiling collapsed. After the safety manager eventually took him to a doctor, he was diagnosed with a lumbar strain and released to work “as tolerated.”
The manager was not his supervisor and had only seen him once or twice before the accident. Nevertheless, after the injury, he purportedly began to “dominate” the employee’s life. This included quarreling about his request to take the next day off to recover, showing up at his house that Sunday to “check on him,” and insisting on driving him to work and the doctor.
Disciplined in “invented” job. Eight days after the accident, and a few days after the filing of workers’ compensation (WC) paperwork, the manager placed him in a “flow monitor” job. The employee claimed that he was not well-suited for this “invented” position and that it was created so that the manager would become his supervisor. The manager immediately accused him of taking unauthorized breaks. Three days later, he gave him a verbal warning for allegedly failing to pick up paperwork and documented his “unsatisfactory work quality” and “working on personal matters.”
Discharged after two weeks. Meanwhile, the manager concluded that the scaffold accident was the employee’s fault. He called him into a meeting to discuss the matter and ultimately terminated him. While the employee claimed that he was immediately fired, the manager claimed the employee became belligerent and profane at the meeting, leading to the discharge. In any event, the termination occurred 15 days after the accident and 11 days after the employee filed the WC documentation.
The employee denied yelling or cursing at the meeting and his termination notice did not mention any abusive language or prior incidents. Rather, the only boxes checked were for “Violation of Safety Rules” and “Violation of Company Policy/Practices.” Under “Description of the Incident,” the manager wrote that the employee “took it upon himself to utilize a scaffold of which he was not trained or authorized to use” and “failed to perform a job hazard analysis for task assigned.”
Causal connection. The Texas Supreme Court has held that circumstantial evidence sufficient to establish a causal link for purposes of a WC retaliation claim under Texas law includes: (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. A Texas court of appeals has also suggested that temporal proximity may establish a causal connection when the events “are separated by weeks, as opposed to months and years.”
Evidence supports claim. With this legal backdrop, the Fifth Circuit found sufficient evidence of retaliation to support a jury verdict in the employee’s favor. First, there was “stark” temporal proximity as he was fired about two weeks after his injury. It was also undisputed that the decisionmaker—the safety manager—was aware of the WC claim. He also undisputedly failed to follow the progressive discipline policy, which began at step one (a verbal warning) and progressed to step five (termination). It was hotly disputed, however, whether immediate firing might have been justified since the employee denied that he cursed and yelled at the manager. In this regard, the discrepancy between the employee’s termination paperwork and the manager’s testimony was a credibility issue that would be for the jury to assess.
The employee’s showing of causation was also supported by evidence concerning the manager’s “expression of a negative attitude” and dissimilar treatment of “similarly situated” employees. In addition to the manager’s “odd and suffocating behavior,” he repeatedly made statements indicating doubt about whether the employee was actually injured. For example, he referred to the employee’s “supposed injury” and called his physical limitations “self-imposed.” A jury could reasonably infer a negative attitude towards the employee because of his WC claim.
The “similarly situated” employee prong was difficult to determine given the varying reasons for the termination and the fact that the employer controlled the evidence of this issue. At trial, the employee presented evidence of the company’s actions toward other employees who filed WC claims between January 2012 and December 2015. During that time, 11 other employees filed claims for work-related injuries. Two of the 11 were terminated within 30 days of their injury, four others were terminated within 90 days, and one other was terminated within 150 days. Finally, evidence of the company’s shifting explanations for his termination supported the notion that the stated reason for discharge was false.
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