Parker v. Valerus Compression Servs., LP

• Decision Date: 25 August 2011
• Docket Number: No. 01–10–00916–CV.,01–10–00916–CV.
• Citation: 365 S.W.3d 61
• Parties: Donald PARKER, Appellant, v. VALERUS COMPRESSION SERVICES, LP, Appellee.
• Court: Texas Court of Appeals

365 S.W.3d 61

Donald PARKER, Appellant,

v.VALERUS COMPRESSION SERVICES, LP, Appellee.

No. 01–10–00916–CV.

Court of Appeals of Texas,

Houston (1st Dist.).

Aug. 25, 2011.

Savannah Lina Robinson, Law Office of S. Robinson, Danbury, TX, for Appellant.

Fazila Issa, Kerry E. Notestine, Littler Mendelson, P.C., Houston, TX, for Appellee.

Panel consists of Chief Justice RADACK and Justices SHARP and BROWN.

OPINION

HARVEY BROWN, Justice.

Donald Parker sued his employer Valerus Compression Services, LP for wrongful termination and retaliation based on his filing of a workers' compensation claim, among other grounds. Valerus denied Parker's allegations and asserted that it terminated him in accordance with its absentee policy after he spent eight months on medical leave. Valerus filed traditional and no-evidence motions for summary judgment asserting that Parker failed to meet his prima facie burden to show a causal link between his workers' compensation claim and Valerus's actions against him or, alternatively, that he failed to controvert its neutral non-discriminatory reason for terminating him. The trial court granted Valerus's summary judgment motions. Parker contends on appeal that the trial court erred in granting summary judgment because (1) he presented sufficient evidence on all the elements of retaliation to satisfy a prima facie case; (2) a fact issue exists on the causation element; (3) a fact issue exists regarding the “cat's paw” theory of discrimination in the decision to terminate him; and (4) his damage claims are not barred as a matter of law.

We affirm.

Background

Parker worked as a pipe welder in a Valerus manufacturing facility. On June 11, 2007 he injured his back while lifting a barrel containing scrap iron and other industrial trash. The next week, Parker went to Dr. James Shook, an orthopedic surgeon, who recommended that he take over-the-counter pain medications and apply hot and cold compresses to his back as needed. Dr. Shook released Parker to return to work without restrictions. A second doctor released Parker to return to work without restrictions two and a half weeks after the accident.

Parker returned to Dr. Shook almost a month after the accident. At this time, Dr. Shook reiterated that Parker could return to work, but issued restrictions against pushing, pulling, twisting, climbing stairs or ladders, and any lifting or carrying. In response to Parker's restrictions, Valerus assigned him the light duty tasks of only welding “roll-outs,” which Parker described as the easiest part of a welder's job because it does not involve moving around or under the pipe.¹ Parker filed a workers' compensation claim.

Parker saw Dr. Shook again two months after the accident. Dr. Shook reiterated Parker's previous restrictions with additional limitations that he not work more than eight hours, that he not lift more than 10 pounds more than six hours a day, and that he refrain from standing, sitting, kneeling, squatting, walking, squeezing, wrist extension, and reaching. Dr. Shook stated that Parker could return to work in a sedentary capacity and could work on moving machinery or operate a motor vehicle. Dr. Shook also stated that the restrictions should expire in September.

Other employees complained that Parker was given all of the roll-out welding—work that was easier than other welding tasks and, therefore, their jobs were correspondingly more difficult. In response, Valerus assigned Parker to a night-shift position operating a sub-arc welding machine in August, a position that would involve minimal lifting, pulling, or movement under pipes. Parker performed the job for two to three days before informing his supervisor that he could not continue because of his restrictions. Parker met with his supervisor and several other managers on August 20th to discuss his work assignments. He requested a position in the safety office, but was told that was not possible because of personality conflicts. He was also told that he could not continue to perform roll-outs exclusively, as no welder did only roll-outs, and that he would need to accept the sub-arc machine position.² Parker insisted that he could not perform this work, left the meeting, was placed on medical leave, and never returned to work at Valerus.

In February 2008, over eight months after the accident, Dr. Shook issued another report for Parker stating that he could return to work with the limitation that he only work eight hours a day and refrain from squatting, kneeling, bending, stooping, pushing, pulling, or lifting more than 50 pounds or lifting more than 25 pounds frequently. Dr. Shook also stated that Parker had a personal impairment rating of five percent.

Jim Nicholson, the newly appointed vice president of human resources for Valerus, began reviewing the status of employees on extended leave in April 2008. Nicholson testified in his affidavit that his review took several months and included eight injured employees, four with workers' compensation claims and four without workers' compensation claims. Nicholson testified that Parker requested to be placed on medical leave after trying the sub-arc position for several days. Nicholson stated that he terminated Parker, along with the other seven employees on extended medical leave, because the reports from Parker's doctor indicated that Parker could not perform the essential functions of his job and Nicholson saw no evidence that Parker was likely to return to work in the foreseeable future. Valerus fired Parker on April 15, 2008, approximately ten months after the accident and eight months after his last day on the job. Parker testified by deposition that Valerus never informed him that he needed to return to work by a specific time, that he had been fired, or that he was eligible for reemployment. Parker testified that he later applied for reemployment, but was not given a position.

Parker sued Valerus for workers' compensation retaliation and discrimination and retaliation on the basis of age and disability. SeeTex. Lab.Code Ann. § 451.001 (West 2010) (workers' compensation retaliation); Tex. Lab.Code Ann. § 21.051 (West 2006) (age and disability discrimination); Tex. Lab.Code Ann. § 21.055 (West 2006) (age and disability retaliation). Valerus filed a traditional and no-evidence motion for summary judgment on all claims. As summary judgment evidence, Valerus relied on Dr. Shook's reports indicating Parker's work restrictions, Nicholson's affidavit, and the policies outlined in Valerus's employee handbooks. It also relied on Parker's deposition testimony.

The trial court granted summary judgment on all claims. Parker appealed the trial court's judgment on his workers' compensation retaliation claim under Labor Code section 451.001. He did not appeal his remaining claims for age and disability discrimination and retaliation.

Standard of Review

We review a trial court's summary judgment de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex.2010). If a trial court grants summary judgment without specifying the grounds for granting the motion, we must uphold the trial court's judgment if any of the grounds are meritorious. Beverick v. Koch Power, Inc., 186 S.W.3d 145, 148 (Tex.App.-Houston [1st Dist.] 2005, pet. denied). The motion must state the specific grounds relied upon for summary judgment. SeeTex.R. Civ. P. 166a(c), (i); Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex.2009). When reviewing a summary judgment motion, we must (1) take as true all evidence favorable to the nonmovant and (2) indulge every reasonable inference and resolve any doubts in the nonmovant's favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003).

A party seeking summary judgment may combine in a single motion a request for summary judgment under the no-evidence standard with a request under the traditional summary judgment standard. Binur v. Jacobo, 135 S.W.3d 646, 650 (Tex.2004). When a party has filed both a traditional and no-evidence summary judgment motion and the order does not specify which motion was granted, we typically first review the propriety of the summary judgment under the no-evidence standard. SeeTex.R. Civ. P. 166a(i); see Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.2004). If the no-evidence summary judgment was properly granted, we need not reach arguments under the traditional motion for summary judgment. See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 576–77 (Tex.2006).

To prevail on a no-evidence motion for summary judgment, the movant must establish that there is no evidence to support an essential element of the nonmovant's claim on which the nonmovant would have the burden of proof at trial. SeeTex.R. Civ. P. 166a(i); Hahn v. Love, 321 S.W.3d 517, 523–24 (Tex.App.-Houston [1st Dist.] 2009, pet. denied). The burden then shifts to the nonmovant to present evidence raising a genuine issue of material fact as to each of the elements specified in the motion. Mack Trucks, 206 S.W.3d at 582;Hahn, 321 S.W.3d at 524.

In a traditional summary judgment motion, the movant has the burden to show that no genuine issue of material fact exists and that the trial court should grant judgment as a matter of law. Tex.R. Civ. P. 166a(c); KPMG Peat Marwick v. Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999). A defendant moving for traditional summary judgment must conclusively negate at least one essential element of each of the plaintiff's causes of action or conclusively establish each element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997).

Workers' Compensation Retaliation

In his sole issue on appeal, Parker contends the trial court erred in granting Valerus's traditional and no-evidence summary judgment motions. He asserts that summary judgment was improper because (1) he presented sufficient evidence on all the...