Datar v. Nat'l Oilwell Varco, L.P.

• Decision Date: 19 January 2017
• Docket Number: NO. 01–15–00541–CV,01–15–00541–CV
• Citation: 518 S.W.3d 467
• Parties: Alborz DATAR, Appellant v. NATIONAL OILWELL VARCO, L.P., Appellee
• Court: Texas Court of Appeals

518 S.W.3d 467

Alborz DATAR, Appellant

v.NATIONAL OILWELL VARCO, L.P., Appellee

NO. 01–15–00541–CV

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued January 19, 2017

Rehearing En Banc Overruled May 16, 2017

Nitin Sud, Sud Law P.C., Bellaire, TX, for appellant.

Christopher E. Moore, Christine M. White, Olgetree, Deakins, Nash, Smoak & Stewart, P.C., New Orleans, LA, for appellee.

Panel consists of Justices Jennings, Keyes, and Brown.

OPINION

Evelyn V. Keyes, Justice

Appellant, Alborz Datar, sued appellee, National Oilwell Varco, L.P. ("NOV"), for various disability discrimination and retaliation claims under the Texas Commission on Human Rights Act ("TCHRA") and the Texas Workers' Compensation Act ("TWCA"). The trial court granted summary judgment in favor of NOV, dismissing all of Datar's claims. Datar argues in three issues on appeal that the trial court erred (1) by granting NOV's traditional motion for summary judgment on his claim that NOV failed to accommodate his disability; (2) by granting NOV's traditional motion for summary judgment on his TCHRA retaliation claims; and (3) by granting NOV's no-evidence and traditional motion for summary judgment on his workers' compensation retaliation claim.

We affirm.

Background

Datar began working as a welder for NOV at its Houston facility in 2008. Also in 2008, Datar was diagnosed with hypertension

, but he continued to work as a welder for NOV and was able to perform all of his duties. As a welder, Datar's duties consisted of welding and preparing welding sites, including rigging, cutting, and grinding metal, and using a forklift to move parts. Datar worked with Jose Fuentes, a welder who was the "lead man" assigned to the day shift. At one time, Datar and Fuentes were friends who would occasionally ride to work together or socialize outside of work. The weld shop supervisor was Jesus Rangel. Datar had positive performance reviews throughout his employment at NOV, and he was given a raise in February 2013.

On May 10, 2013, Datar was injured at work. He reported the incident to NOV's safety department the next day. The Incident Summary prepared by Rangel following Datar's injury and sent to his supervisors described his injury as a "slight pain in [his] lower back," and it stated that Datar "refused medical treatment" and had "minor soreness" in his lower back. A week later, Datar's pain level was the same. Datar visited a doctor on four occasions following his injury. He was diagnosed with a lower-back sprain. He was not prescribed any medication, but he would perform stretches to treat his injury.

Following his visits to the doctor, he was discharged and permitted to work "without restrictions." His workers' compensation work status report, dated May 16, 2013, also stated that he was permitted to return to work without work restrictions. Datar obtained workers' compensation benefits following this injury.

Datar stated that although his back injury made it "harder" to do things like walking, sitting down, and picking things up, "[i]t doesn't prevent it."

On May 13, 2013, Datar filed a complaint against Fuentes, claiming that Fuentes tried to pull down his pants at work during work hours. Datar also complained that Fuentes engaged in other "unprofessional" conduct, namely that on one occasion Fuentes "[struck] an arc with a stick rod in close proximity" to Datar and that on another occasion Fuentes blew hot flux toward him. However, Fuentes' attempt to pull down Datar's pants was the only incident that Datar considered sexual in nature. NOV's human resources department acknowledged his complaint regarding Fuentes' behavior and conducted an investigation.

On May 20, 2013, Datar asked Rangel for time off the following Sunday and Monday, over Memorial Day weekend, "to rest because of his back injury." Rangel refused to grant him the time off. However, Datar subsequently visited an emergency room and called in sick on Sunday, May 26, 2013. Thus, Datar did not work either May 26 or May 27, 2013.

On May 31, 2013, after the investigation into Datar's allegations concluded, human resources personnel informed Datar that NOV could not substantiate his sexual harassment complaint against Fuentes and that Datar had to continue working with Fuentes as his "lead man," i.e., his direct supervisor. NOV indicated that Fuentes was the only lead man on the day shift at that facility. Datar refused to continue working under Fuentes' supervision, telling the human resources personnel that he refused to work with someone that he "did not respect" and that he was uncomfortable working with somebody who had previously harassed him. Human resources informed Datar that he had to report to the lead man and told Datar to take the weekend off to think about whether he "want[ed] to go down this road because [he had] to report to [his] lead man."

On June 3, 2013, Datar returned to the office and attended a second meeting with the human resources department. Human resources personnel told Datar that if he refused to work with Fuentes as his lead man, he was refusing to do his job. Datar explained that he wanted to do his job, just not under Fuentes' supervision as the lead man. Datar also testified in his deposition that he never asked to be transferred, and he stated that he was "not at all" interested in working on the night shift or transferring to a different location. NOV terminated Datar's employment for insubordination. Datar stated in his deposition that if he had agreed to continue working with Fuentes he could "possibly" have kept his job.

Regarding its unofficial progressive discipline policy, NOV's senior human resources manager, Lonny Allchin, testified in a deposition that NOV engages in a progressive discipline practice, consisting of issuing a "verbal warning, [a] written warning, [and a] final warning" prior to taking an adverse action against an employee. Allchin testified that the progressive discipline policy "can" apply to employees who are insubordinate and that such employees "may" get "a verbal or write-up or final warning." However, he also testified that an employee may be terminated for insubordination without applying the progressive discipline practice in "extreme cases." Datar also presented evidence of various written warnings provided to three other employees for behavior including being disruptive, using foul language, not following instructions well, performing substandard work, refusing to complete a project assigned by a manager, and ignoring a direct request to perform a particular task. None of these warnings addressed a circumstance in which an NOV employee refused to work with a particular supervisor, and Datar provided no evidence that any such similarly-situated employee existed.

On February 3, 2014, Datar filed suit against NOV asserting claims for disability discrimination based on NOV's alleged failure to accommodate his disability, retaliation under the TCHRA for Datar's making a sexual harassment complaint, and retaliation under the TWCA.¹

Datar moved for partial summary judgment on the ground that he had a disability and that NOV was aware of his disability.

NOV moved for traditional summary judgment on all three of Datar's claims, and it moved for no-evidence summary judgment on Datar's TWCA retaliation claim.

The trial court granted NOV's motions for summary judgment, and this appeal followed.

Summary Judgment Standard of Review

We review a trial court's ruling on a summary judgment motion de novo. Travelers Ins. Co. v. Joachim , 315 S.W.3d 860, 862 (Tex. 2010). To prevail on a traditional summary judgment motion, the movant bears the burden of proving that no genuine issues of material fact exist and that it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c) ; Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding , 289 S.W.3d 844, 848 (Tex. 2009). A matter is conclusively established if reasonable people could not differ as to the conclusion to be drawn from the evidence. See City of Keller v. Wilson , 168 S.W.3d 802, 816 (Tex. 2005) ; Cleveland v. Taylor , 397 S.W.3d 683, 697 (Tex. App.–Houston [1st Dist.] 2012, pet. denied). If the movant meets its burden, the burden then shifts to the nonmovant to raise a genuine issue of material fact precluding summary judgment. See Centeq Realty, Inc. v. Siegler , 899 S.W.2d 195, 197 (Tex. 1995) ; Goodyear Tire & Rubber Co. v. Mayes , 236 S.W.3d 754, 755 (Tex. 2007) (per curiam) (stating that summary judgment evidence raises fact issues if reasonable and fair-minded jurors could differ in their conclusions in light of all evidence presented).

To determine if the nonmovant raised a fact issue, we review the evidence in the light most favorable to the nonmovant, crediting favorable evidence if reasonable jurors could and disregarding contrary evidence unless reasonable jurors could not. Fielding , 289 S.W.3d at 848 (citing City of Keller , 168 S.W.3d at 827 ); Cleveland , 397 S.W.3d at 697. We indulge every reasonable inference and resolve any doubts in the nonmovant's favor. Sw. Elec. Power Co. v. Grant , 73 S.W.3d 211, 215 (Tex. 2002) (citing Sci. Spectrum, Inc. v. Martinez , 941 S.W.2d 910, 911 (Tex. 1997) ); Cleveland , 397 S.W.3d at 697.

We must affirm a summary judgment order if any of the grounds presented to the trial court are meritorious. Provident Life & Accident Ins. Co. v. Knott , 128 S.W.3d 211, 216 (Tex. 2003) ; Cleveland , 397 S.W.3d at 697.

Reasonable Accommodation Claim

In his first issue, Datar argues that the trial court erred in granting summary judgment on his claim that NOV failed to provide a reasonable accommodation for a known disability.

A. Standard of Review

An employer violates Labor Chapter 21 any time it "fail[s] or refuse[s] to make a reasonable workplace accommodation to a known physical or mental limitation of an otherwise qualified individual with a disability who is an employee. ..." TEX. LAB. CODE ANN. § 21.128(a) (West 2015). Thus, to establish a failure to...