Brenda Brewer, Deanna Meador, Penny Adams and Sabra Curry v. Lowe's Home Centers Inc. ( 2015 )

ACCEPTED
12-14-00155-CV
TWELFTH COURT OF APPEALS
TYLER, TEXAS
3/19/2015 1:12:55 PM
CATHY LUSK
CLERK
NO. 12-14-00155-CV
FILED IN
IN THE TEXAS COURT OF APPEALS FOR THE TWELFTH DISTRICT
12th COURT OF APPEALS
TYLER, TEXAS TYLER, TEXAS
3/19/2015 1:12:55 PM
* * * * * CATHY S. LUSK
Clerk
BRENDA BREWER, DEANNA MEADOR, PENNY ADAMS, and SABRA
CURRY
APPELLANTS
V.
LOWE’S HOME CENTERS, INC.,
APPELLEE
* * * * *
On Appeal from the 3rd Judicial District Court
Anderson County, Texas
District Court Cause No. 3-41083
* * * * *
APPELLANTS’ BRIEF
Respectfully submitted,
Matthew R. Pearson Brendan K. McBride
State Bar No. 0078817 State Bar No. 24008900
mpearson@gplawfirm.com Brendan.mcbride@att.net
GRAVELY & PEARSON, LLP THE MCBRIDE LAW FIRM of counsel
425 Soledad, Suite 600 to GRAVELY & PEARSON. LLP
San Antonio, Texas 78205 425 Soledad, Suite 620
(210) 472-1111 Telephone San Antonio, Texas 78205
(210) 472-1110 Facsimile (210) 472-11111 Telephone
(210) 881-6752 Facsimile
ATTORNEYS FOR APPELLANTS
1
IDENTITY OF PARTIES AND COUNSEL
Parties
Brenda Brewer Appellants
Deanna Meador
Penny Adams
Sabra Curry
Appellee
Lowe’s Home Centers, Inc.
Counsel
Matthew Pearson
GRAVELY & PEARSON, LLP
425 Soledad, Suite 600
San Antonio, Texas 78205
(210) 472-1111 Telephone
(210) 472-1110 Facsimile
mpearson@gplawfirm.com Appellate and Trial Counsel for Appellant
Brendan K. McBride
The MCBRIDE LAW FIRM
Of counsel to GRAVELY &
PEARSON, LLP
425 Soledad, Suite 620
San Antonio, Texas 78205
(210) 472-1111 Telephone
(210) 881-6752 Facsimile
Brendan.mcbride@att.net Appellate Counsel for Appellant
Holly Williamson
Jamilah Mensah
Hunton & Williams, LLP
700 Louisiana, Ste. 4200
Houston, Texas77002
(713) 229-5700 Telephone Counsel for Appellee, Lowe’s Home
(713) 229-5750 Facsimile Centers, Inc.
2
TABLE OF CONTENTS
Page
TABLE OF CONTENTS .................................................................................................... 3
TABLE OF AUTHORITIES .............................................................................................. 5
STATEMENT OF THE CASE .......................................................................................... 7
THE RECORD ...................................................................................................................... 8
ISSUES PRESENTED ......................................................................................................... 9
STATEMENT OF FACTS ................................................................................................ 10
Brenda Brewer ...................................................................................................................... 10
Deanna Meador .................................................................................................................... 13
Penny Adams ....................................................................................................................... 15
Sabra Curry ......................................................................................................................... 17
Lowe’s Management Seeks “Lowe’s Next Customers” ........................................................... 19
SUMMARY OF THE ARGUMENT ............................................................................... 25
ARGUMENT AND AUTHORITIES ............................................................................. 28
I. STANDARD OF REVIEW FOR DIRECTED VERDICT ................................................. 28
II. THE EVIDENCE RAISES A GENUINE ISSUE OF FACT AS TO WHETHER
APPELLANTS’ WORKERS’ COMPENSATION CLAIMS WERE A CAUSE OF THEIR
TERMINATIONS. ........................................................................................................... 30
A. The Evidence Shows Lowe’s Management Forced The Employees To Work
Against Their Light Duty Restrictions In Order to Make Them “Lowe’s
Next Customers.” ................................................................................................. 34
1. Knowledge of the Claims ..................................................................................... 35
2. Expression of negative attitude towards injury ..................................................... 36
3
3. Failure to adhere to company policies ................................................................... 37
4. Discriminatory treatment compared to other employees .......................................... 39
B. The Evidence Supports That the Leave of Absence Policy Was A False
Pretext; Policy Was Not Even Followed. .......................................................... 41
PRAYER ............................................................................................................................... 48
CERTIFICATE OF SERVICE .......................................................................................... 50
CERTIFICATE OF COMPLIANCE................................................................................ 50
4
TABLE OF AUTHORITIES
Page
Cases
Armendariz v. Redcats USA, L.P., 390 S.W.3d 463 (Tex. App. – El Paso 2012, no pet.)
............................................................................................................................................. 33
Aust v. Conroe Indep. Sch. Dist., 153 S.W.3d 222 (Tex. App. – Beaumont 2004, no pet.)
............................................................................................................................................. 33
Baptist Memorial Healthcare Sys. v. Casanova, 2 S.W.3d 306 (Tex. App.--San Antonio
1999, pet. denied).............................................................................................................. 41
Benners v. Blanks Color Imaging, Inc., 133 S.W.3d 364 (Tex. App. – Dallas 2004, no pet.)
.................................................................................................................................29, 31, 32
Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227 (Tex. 2004)........ 27, 28
Collora v. Navarro, 574 S.W.2d 65 (Tex. 1978) ................................................................... 27
Cont'l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444 (Tex. 1996) .................................passim
Dallas Cnty. v. Holmes, 62 S.W.3d 326 (Tex. App. – Dallas 2001, no pet.) ..................... 30
Darpino v. T.D.C.J.-I.D., No. 12-03-00021-CV, 2003 Tex. App. LEXIS 10097, 6, 2003
WL 22839250 (Tex. App. – Tyler 2003, no pet.)(mem. op.)....................................... 27
Deveaux v. Compaq Computer Corp., No. 01-95-01104-CV, 1996 Tex. App. LEXIS 4308,
15, 1996 WL 531959 (Tex. App. – Houston [1st Dist.] 1996, no writ) ...................... 44
Echostar Satellite, L.L.C. v. Aguilar, 394 S.W.3d 276 (Tex. App. – El Paso 2012, pet.
denied) .......................................................................................................................... 40, 45
Farlow v. Harris Methodist Fort Worth Hosp., 284 S.W.3d 903 (Tex. App. – Fort Worth
2009, pet. denied).............................................................................................................. 27
Graham v. Atlantic Richfield Co., 848 S.W.2d 747 (Tex. App. – Corpus Christi 1993, writ
denied) ................................................................................................................................ 27
Green v. Lowe’s Home Ctrs., Inc., 199 S.W.3d 514 (Tex. App. – Houston [1st Dist.] 2006,
pet. denied) .................................................................................................................. 31, 32
5
Hertz Equip. Rental Corp. v. Barousse, No. 01-10-00949-CV, 365 S.W.3d 46 (Tex. App. –
Houston [1st Dist.] 2011 pet. denied) ............................................................................. 31
In the Estate of Allen, 301 S.W.3d 923 (Tex. App. – Tyler 2009, orig. proceeding) ...... 28
Jenkins v. Guardian Indus. Corp., 16 S.W.3d 431 (Tex. App. – Waco 2000, pet. denied) 30
Kings Aire, Inc. v. Melendez, 416 S.W.3d 898 (Tex. App. – El Paso 2013, pet. filed)40, 43,
44, 45
Omoro v. Harcourt Brace & Co., No. 05-96-01454-CV, 1999 Tex. App. LEXIS 133, 1999
WL 10388, at *3 (Tex. App. – Dallas 1999, no pet.)(mem. op.) ................................. 41
Parker v. Valerus Compression Servs., LP, 365 S.W.3d 61 (Tex. App. – Houston [1st Dist.
2011, pet. denied)..................................................................................................31, 32, 44
Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74 (Tex. 2000) ................. 27
Selgas v. Henderson County Appraisal Dist., No. 12-10-00021-CV, No. 12-10-00050-CV,
2011 Tex. App. LEXIS 9091, 4, 2011 WL 5593138 (Tex. App. – Tyler 2011, pet.
denied)(mem. op.) ............................................................................................................. 27
Terry v. S. Floral Co., 927 S.W.2d 254 (Tex. App. – Houston [1st Dist.] 1996, no writ)29,
44
Tex. Div.-Tranter, Inc. v. Carrozza, 876 S.W.2d 312 (Tex. 1994) ....................................... 32
Tex. Mun. Power Agency v. Pub. Util. Comm'n, 253 S.W.3d 184 (Tex. 2007) ..................... 27
Turner v. Precision Surgical, L.L.C., 274 S.W.3d 245 (Tex. App. – Houston [1st Dist.]
2008, no pet.)..................................................................................................................... 30
Wal-Mart Stores, Inc. v. Amos, 79 S.W.3d 178 (Tex. App. – Texarkana 2002, no pet.) .. 30
White v. Southwestern Bell Tel. Co., 651 S.W.2d 260 (Tex. 1983) ........................................ 28
6
STATEMENT OF THE CASE
Nature of the Case: This is a workers’ compensation retaliation
case arising out of the termination of four
employees of Lowe’s Home Centers, Inc.
(“Lowe’s), who required the employees to
work contrary to their work restrictions,
effectively refusing to allow them to come
back to work on “light duty” in order to mis-
categorize the four employees as taking
“personal leave,” and ultimately terminating
them under what Lowe’s claims was its
“absence control policy.”
Trial Court: The 3rd Judicial District Court of Anderson
County, Hon. Deborah Oaks Evans,
presiding.
Trial Court Disposition: The case was called for trial on March 11,
2014. At the close of the plaintiffs’ case-in-
chief on March 14, 2014, the trial court
granted a directed verdict in favor of Lowe’s
and orally rendered judgment that the
plaintiffs take nothing. (RR6:98-99, Tab 1;
CR6:307) On May 12, 2014, the trial court
rendered a take nothing judgment dismissing
all of the plaintiffs’ claims against Lowe’s.
(CR6:307-309, Tab 2)
7
THE RECORD
The record on appeal consists of a six-volume, Clerk’s Record containing the
pertinent papers filed in the Anderson County District Court proceedings below in
“.pdf” format. References to the Clerk’s Record will be cited as
“(CR[Volume]:[Page(s)]).” There is also a seven-volume Reporter’s Record
containing the transcripts of trial and related proceedings before the district court as
well as the exhibits offered into evidence. References to the Reporter’s Record will be
cited as “(RR[Volume]:[Page(s)]).” Some materials are duplicated and attached for the
Court’s convenience in the Appendix to this Brief, and shall be cited to as necessary.
8
ISSUES PRESENTED
Lowe’s moved for directed verdict on the ground that the plaintiffs had not
proven causation and that their claims were precluded because they were terminated
under Lowe’s “absence control policy.” (RR6:89-90) The trial court granted Lowe’s a
directed verdict on Appellants’ claims for workers’ compensation retaliation because
the trial court found there was no evidence of causation. (RR6:99).
Issue One:
Did the trial court err in granting a directed verdict where there was
more than a scintilla of evidence on all five of the Cont’l Coffee factors
from which a jury may infer causation?
Considering all of the evidence on the record, as this Court must, there
is more than a scintilla of evidence that the employees’ workers’
compensation claims were a cause of their terminations. There is
evidence that Lowe’s deliberately worked employees against restrictions
to force employees to take additional leave that Lowe’s mis-characterized
as personal leave without the employees’ request or knowledge, and to
ultimately justify terminating the claimants’ employment under the false
pretext of Lowe’s “absence control policy” even though Lowe’s did not
follow that policy for any of the four employees.
Issue Two:
Did the trial court err in granting a directed verdict based on Lowe’s
argument that it was merely enforcing a neutral “absence control policy,”
where there was more than a scintilla of evidence that Lowe’s did not
follow the policy with regard to these four employees, there was
evidence that Lowe’s had a retaliatory motive, and where there was other
evidence that the absence control policy was a false pretext?
9
STATEMENT OF FACTS
This is a Worker’s Compensation retaliation claim brought under Tex. Lab.
Code §451.001. The four Appellants – Brewer, Adams, Curry and Meador – were all
employed at Lowe’s store in Palestine, Texas.
Brenda Brewer
Brenda Brewer was hired by Defendant on December 5, 2006 as a sales
associate in the Tools department at the Palestine store. (RR4:104-105; 8:8) On June
12, 2007, Brewer sustained an on-the-job injury while working in the tools
department. She was picking up a heavy vice, one of 33 vices weighing more than 75
pounds each, when she felt her back “pop,” causing her enormous pain and making
her drop to her knees. (RR4:108) Brewer reported the injury to the HR manager,
Janice Hardy, who advised her to sit down for a break to see if the pain would
subside. (RR8:8) When the pain became unbearable, a co-worker filled out the
injury paperwork, and Brewer went home. (RR4:108; 8:8-10)
Brewer had no prior back injuries or problems before this on-the-job injury in
June 2007. (RR4:108) She saw a doctor about her back injury and was put on “light
duty” restrictions for work. (RR4:108-110) On November 19, 2007, Brewer was
offered a new light duty position at the “credit card table” and as “telephone
operator,” not to lift over ten pounds and with hourly stretch breaks – a position that
Brewer accepted. (RR8:17; 4:110) Had Lowe’s allowed Brewer to perform this light
duty work position, she would have been physically able to do the job. (RR4:110)
10
However, when Brewer got back to work, Lowe’s refused to follow the
restrictions. Rather than stay at the credit card table and phone operator stations,
Lowe’s required her to work as a cashier by the Store Manager Julio Gonzalez and
Operations Manager Nick Boren. (RR4:111) Despite Brewer reminding them that
she was on physical restrictions, Lowe’s managers required her to bend to scan
merchandise and lift heavy items like cabinets out of carts. (RR4:112) Despite her
restricted job as a phone operator, Brewer was then transferred to the back of the
store to work in “receiving” as often as twice a week, where new merchandise arrived
for sale and had to be checked in to the computer. (RR4:112-13) She was told that
she would have to lift heavy items coming off of the trucks as part of her job in
receiving and told she “could seek employment somewhere else” if she could not do
it. (RR4:113)
On one occasion Brewer’s back was hurting so badly from the work that she
went to the new HR manager who asked to see her limitation sheet. When she
showed it to him, he told her to “get that the blank out of [my] face,” he did not want
to see it. (RR4:114) Brewer was told the same thing by an employee in the receiving
department when she showed him her restrictions – he threw her restrictions back at
her, saying “he didn’t want to see this shit.” (RR4:126) Almost every other day
Brewer was required to work against her restrictions, which worsened her back injury.
(RR4:115) Brewer informed her doctor that she was being required to work against
11
her restrictions, which was documented in her medical records in February 2008.
(RR4:117; 7:258-59)
In April, Lowe’s offered Brewer a different “light duty” position back in the
Tools department, with the restrictions that she “not lift/carry objects more than 10
lbs.” or work more than six hours per day. (RR8:13) Brewer could have performed
this job as well had Lowe’s followed the restrictions. (RR4:119) Again, Lowe’s
disregarded the restrictions, requiring her to work at the dock climbing tall ladders
while lifting and carrying tools that weighed more than ten pounds. (RR4:121-23)
Lowe’s managers, Gonzalez and Boren, would not allow her to take the short breaks
her physical restrictions required. (RR4:121) When she complained about the work
going beyond her physical restrictions, Boren confronted her in the back of the store
and told her to “cowgirl up” and she could do “the job I told you to do or you can
seek your employment somewhere else.” (RR4:123)
Brewer continued working in violation of her restrictions culminating in a
second back injury on October 29, 2008, while Brewer was working back in receiving
again, lifting items off of trucks and checking them into the computer. (RR4:129) By
February 2009, Brewer was in so much pain that she was no longer able to physically
work and went on leave. (RR4:130) She saw a neurosurgeon in March 2009 who put
her on more restrictions – not to lift more than 10 lbs., not to work any shift longer
than 6-7 hours, no more than 4 shifts per week, regular breaks every 2 hours and limit
work requiring stooping, bending and twisting or excessive walking. (RR8:16) Brewer
12
showed the revised restrictions to Lowe’s, which was unable to provide any work that
would stay within her physical restrictions. (RR8:131) Brewer remained on leave until
October 31, 2009, when she was informed by Lowe’s that she was being terminated
for exceeding her maximum leave of 240 days. (RR4:132) Brewer received no
warning that Lowe’s would terminate her for exceeding her maximum leave time.
(Id.)
Deanna Meador
Deanna Meador began working for Lowe’s in December 2004 as a plumbing
specialist. (RR3:30) Meador was eventually promoted to Department Manager for
plumbing and electrical in December 2006. (RR3:35)
On October 8, 2007 Meador was helping a customer load merchandise onto a
flat cart when she felt a pull in her lower back and a “pop.” (RR3:43) She reported it
to her Zone Manager, Mick Bohem, and filled out a workplace injury report.
(RR3:43-44; 8:195) Meador went to the emergency room for treatment and was put
on “light duty” physical restrictions – she was not to lift anything over 20 lbs, was not
to do work requiring kneeling/squatting, bending/stooping, pushing or pulling heavy
objects or climbing stairs and ladders. (RR3:44-47; 8:200)
Meador explained that her job as electrical and plumbing department manager
consisted mostly of tracking sales, overseeing and supervising sales staff and filling out
paperwork, and that she could have continued in that position if Lowe’s had allowed
her to have other employees perform the sort of manual labor that was outside her
13
restrictions. (RR3:41-43, 47) However, as with Brewer, Lowe’s managers ignored the
restrictions. Meador was pressured by Gonzalez to work outside her restrictions,
climbing ladders and carrying merchandise. (RR3:49) She overheard Gonzalez telling
Bohem that if she could not do her job then she would need to find other
employment, that she was taking up too many hours they needed elsewhere in the
store and they wished Meador “just would quit.” (RR3:50)
Operations Manager, Nick Boren, made similar comments to Meador as he had
to Brewer – to “cowgirl up,” – telling her to carry and load freight and that they did
not care what she had to do, she had to get the job done even though they were
requiring her to exceed her restrictions. (RR3:52-53; 4:13-14) Gonzalez likewise
would tell her to load heavy freight and put it away despite her restrictions, even
pressuring her to do it faster even after she reminded him of her light duty work
restrictions. (RR4:11-13) Meador was also often left to load heavy merchandise on
her own, despite requesting assistance. This included 50-pound bags of concrete and
assembled toilets that weighed up to 120 pounds each. (RR4:10-12) On one occasion,
after informing Boren that some of her freight was too heavy for her work
restrictions, Boren informed Meador she had to do it anyway or come by his office
chiding her that she was a “big girl” and she could get it done by herself when she
asked for assistance. (RR4:14) Meador was continually asked to work against her
restrictions. (RR4:17) She reported this to the HR department, but nothing was ever
done about it. (RR:4:16)
14
Meador continued to be worked against her restrictions by Lowe’s as the
department manager in plumbing and electrical up until Lowe’s demoted her to
“credit coordinator” in June 2009. She was told by the new store manager, Mr.
Hooker, that she could no longer work on the sales floor any longer because of her
physical limitations. (RR4:18-19) That did not stop Lowe’s from making Meador
continue to work beyond her restrictions. (RR4:21) Meador finally took a leave from
work to have back surgery in December 2010. (RR4:22) Three months after the
surgery Meador tried to return to work at Lowe’s and was told by the HR manager
that she could have a position as a phone operator that would fit within her
restrictions. (RR4:24) A week later, Lowe’s HR manager told Meador that she would
not be allowed back to work at all without a full release from her doctor – not even
for light duty work. (Id.)
On January 30, 2012, Meador received a letter from Lowe’s informing her that
her employment was terminated effective January 16, 2012 because she had exceeded
the permissible 365 days of leave. (RR4:27) Meador received no notice or warning
that she was on a leave that could result in her termination prior to receiving notice
that she was terminated. (RR4:28)
Penny Adams
Penny Adams began her employment with Lowe’s in December 2006 as a sales
associate in the inside gardening department – selling lawn mowers and other
gardening equipment, fertilizers and pesticides, as well as seasonal and Christmas
15
items. (RR4:179) Over the course of her employment with Lowe’s Adams suffered
three on-the-job injuries. The first was a mild back injury that occurred while she was
unloading a truck in receiving. (RR4:184) This injury did not require her to miss any
work or go on light duty restrictions, but she did have some physical therapy to help
strengthen her back. (RR4:185) In March 2008, Adams was lifting a large plant in the
garden center when she fell onto a cinder block and broke her back. (RR4:186)
After taking time off from work, she returned with light duty restrictions and
was offered a position that ostensibly complied with her physical restrictions in the
receiving area, with the restriction that she not lift more than 10 pounds and no
kneeling, squatting, bending, stooping, pushing pulling, twisting, or climbing stairs.
(RR4:187; 7:246) As with Brewer and Meador, Lowe’s refused to recognize Adams’s
work restrictions. She was required to bend, twist and kneel and push and pull
merchandise in order to check it in at the receiving dock. (RR4:188) She was regularly
required to lift more than ten pounds. (Id.)
When Adams reported to supervisors that she was having to work beyond her
physical restrictions she was told to put her “big girl panties on” and pull up her
bootstraps, and “if you’re a liability, you’re going to be the next Lowe’s customer.”
(RR4:191) Adams reported the situation to HR where she was assured they were
getting additional help, which never came. (RR4:191-92)
A few months later Adams suffered her third on-the-job injury. In July 2008
she re-injured her back while helping to load portable outdoor storage buildings.
16
(RR4:194) She was still supposed to be on light duty at the time because of her prior
injury. (Id.) Yet, despite her additional back injury, Lowe’s continued to require
Adams to work against her restrictions. This included helping customers load heavy
items like fertilizer bags because there was no one else on the sales floor who would
respond to Adams’ requests for assistance with a customer. (RR4:196) Managers,
including Gonzalez and Boren, would regularly make comments indirectly intended to
pressure Adams into exceeding her restrictions and chiding her to work faster doing
work that she should not have been doing at all. (RR4:197-200)
By February 2009, Adams back had taken all it could and she took time off
from work to get treatment for scoliosis, which had been made worse by her back
injuries at Lowe’s. (RR4:201) She was notified in October 2009 that her employment
was terminated for exceeding Lowe’s 240-day maximum leave of absence period.
(RR4:201; 7:252) As with Brewer and Meador, Adams also received no warning that
she was going to be terminated for exceeding the leave of absence period permitted
under Lowe’s policy until after she had already been terminated. (RR4:203)
Sabra Curry
Sabra Curry also went to work for Lowe’s in December 2006 as a receiving
clerk. (RR5:59) Her job was to unload the trucks at the receiving dock when they
delivered merchandise like paint, tiles, refrigerators, stoves and anything else sold by
Lowe’s and inventory those items as they entered the store. (RR5:60)
17
Curry suffered a back and knee injury in October 2007, when a broken pallet
tipped over onto her from a forklift while unloading a truck bending her backward
over a tool pallet. (RR5:68) Curry went to see a doctor the next day who put her on
light duty restrictions. (RR5:69) Lowe’s offered Curry a job as an outside garden
sales associate, restricting lifting to 10 pounds and limited bending. (RR5:70; 8:108)
Curry frequently had to help customers load heavy items such as bricks, paving stones
and fertilizer because there were not enough employees to respond to requests for
help and the employee, Jesse, who was supposed to help her would not respond to
requests for assistance. (RR5:71)
Though she was not expressly told to work against her restrictions, she was
pressured by managers to do so in indirect ways. (Id.) When she complained to
Gonzalez that she could not get help, Gonzalez told her she just had to get the job
done. (RR5:72) Her zone manager would pressure her to go see her doctor about
getting off of light duty so she could get back on the job. (RR5:74) When she
complained to Boren about working beyond her restrictions, he repeated the phrase
that was a fixture among managers at the Palestine store that she should “cowgirl up”
and that she needed to get the work done. (RR5:76)
As had the others, Curry notified the HR department that she was being
worked against her restrictions, but nothing was ever done about it. (RR5:76)
Despite her light duty restrictions, Curry was continuously worked contrary to her
restrictions. (RR5:77) By December 2008, Curry was in too much daily pain to
18
continue working and took leave. (RR5:79) She received her termination letter in
August 2009 noting the reason for termination was that she had exceeded the 240-day
maximum leave of absence period. (RR7:85) As with the other three employees,
there was no warning that she would be terminated under the leave of absence policy
prior to her letter of termination. (RR5:79)
Lowe’s Management Seeks “Lowe’s Next Customers”
It was after her promotion in 2006 that Meador began attending manager
meetings and interacting directly with Palestine store manager Gonzalez after he
arrived around May 2007. (RR3:38-40) Because of this access, she was aware of the
store management’s approach to employees with Worker’s Compensation claims.
For example, Gonzalez’s catch phrase was that he would find a way to make
injured employees “Lowe’s next customer” – i.e. make them no longer employees.
(RR3:51; 4:29-30) Gonzalez would complain that employees with workers’
compensation injuries and work restrictions were taking up hours needed for other
employees who could work without restrictions. (RR4:30) Gonzalez was also
concerned because payments for workers’ compensation benefits would count against
the store’s budgets and that this, in turn, was affecting his bonuses. (RR4:32) He
made these comments several times. (Id.) Several other managers at the Palestine
store made similar comments, including Boren and Bohem. (Id.) Their belief was
that because injured employees were cutting into managers’ bonuses, they should
become “the next Lowe’s customer.” (RR4:33)
19
Indeed, these discussions included the very employees involved in this case.
Meador listened to Gonzalez and Boren specifically discussing Brenda Brewer, saying
that he thought her injuries were exaggerated, she was taking up hours on the
schedule and not getting the job done. (RR4:33-34) Boren said similar things about
Penny Adams – that she was not hurt as badly as she claimed and he was tired of her
complaining and not getting her work done. (RR4:34) Boren, Gonzalez and Bohem
all complained about Sabra Curry, that her workers’ compensation claim was cutting
into their bonuses, she was not hurt as badly as she claimed and that she needed to
stop whining and get her job done. (RR4:35-36)
These conversations were corroborated by Shelley Tinsley, another Zone
Manager at the Palestine store. Tinsely testified that Gonzalez, Boren and Bohem
would regularly discuss the legitimacy of employee injuries during upper management
meetings. (RR7:23) In these upper management meetings, however, Gonzalez was
less guarded about what was going on at the Palestine store. Tinsely testified that
Gonzalez intentionally moved injured workers around to try to get them to quit.
(RR7:24) Gonzalez complained about workers’ compensation affecting the bottom
line at the store and impacting manager’s bonuses. (RR7:24) He talked about how his
goal was to make employees who had filed for workers’ compensation “Lowe’s next
customers.” (RR7:25) This attitude toward workers’ compensation claimants filtered
into the department manager meetings as well, with managers regularly saying that if
injured workers cannot do their jobs they should be customers. (RR7:26)
20
Tinsely also testified that discussions in these upper management meetings
often pertained to the four injured employees in this case. For instance, Gonzalez
and other managers questioned whether Brewer’s injury was sustained at Lowe’s and
talked about what could be done to make Brenda Brewer “Lowe’s next customer.”
(RR7:27) They also discussed their doubts that Penny Adams’s injury was sustained at
Lowe’s. (RR7:28) Tinsely also testified that she had personal knowledge that
Gonzalez, Boren and Bohem would work Meador beyond her physical restrictions.
(RR7:49) When it came to work beyond her restrictions, they “sent a message that
she needed to do it” and that she could be written up if she did not. (Id.)
Lowe’s Handling of Workers’ Compensation Claims and
The Leave of Absence Policy
Lowe’s was “self-insured” for workers’ compensation claims. (RR5:203) The
claims were handled through a third party claims administrator, but the benefits were
actually paid by Lowe’s itself. (Id.) The cost of these claims were charged in part to
the local store’s budget. (RR5:211) That, in turn, impacted store managers’ bonuses,
which were on a stair-stepped plan keyed to the store’s success in meeting its
budgetary expectations. (RR:212-213) Even small, additional expenses could make a
significant difference in a manager’s bonuses under this program. (RR5:213-14) In
the case of the Palestine store, where all four of these employees worked, that
particular store had its highest number of workers’ compensation claims affecting its
21
budget in 2007-2008 (RR5:215) – the time period during which these four workers
were being made into Lowe’s next customers.
Under Lowe’s official workers’ compensation policies and procedures, there
was a program to provide light duty work to injured and transitional employees.
(RR5:205-207) That included, consistent with Texas law, making offers of work to
injured employees to do light duty work consistent with their physical restrictions
placed by the employees’ doctors. (RR5:207)(“The employer will only assign tasks
consistent with the employee’s physical abilities, knowledge and skills and will provide
training if necessary.”)
The reason for following those restrictions is in part to avoid reinjuring
employees and to facilitate healing from injuries. (RR5:209) Lowe’s corporate
representative admitted that working employees against restrictions could aggravate an
employee’s existing injuries. (RR5:209-210)(Q: “if someone deliberately works an
employee against their restrictions, there could be an increase of that employee
aggravating their injury? A: Yes.”)
Lowe’s Leave of Absence policy provided for a number of reasons an
employee could take leave: because of a workers’ compensation-related injury, Family
Medical Leave, personal leaves, and personal medical leaves. (RR6:6) However,
under Lowe’s policy, there was no limit to the number of days of leave that would be
permitted for an injured employee with a workers’ compensation claim. (RR6:7-9)
However, if Lowe’s re-designates the employee as being on a personal leave instead of
22
a workers’ compensation leave, it then treats the employee as subject to the maximum
number of days allowed under the Leave of Absence policy and terminates those
employees ostensibly for violating the policy. (RR6:9-12)
Under Lowe’s leave policy, a form has to be filled out either by the employee
or by someone at the store designating that the employee was taking personal leave,
and this would then be coded into Lowe’s computer system. (RR6:13-15) As part of
this process, the store is supposed to work through a personal leave checklist.
(RR6:17) So an employee taking personal leave would have a personal leave request
form and a personal leave checklist documenting that the leave policy was being
followed. (RR6:18) These would ordinarily be kept in the personnel records for the
employee. (RR6:19) A letter is then sent to the employee from Lowe’s main office in
North Carolina, informing the employee that they have been put on personal leave.
(RR6:20) Under the Leave of Absence Policy, each employee was also to receive a
letter warning specifically that they were nearing the end of the maximum amount of
personal leave under the policy. (RR6:20-21)
For these four employees there were no leave of absence checklists in their
employment records. (RR6:22) Indeed, none of the leave of absence policy was
followed for these employees. For Brewer, there were no requests forms showing a
leave of absence was requested or a screen shot of the data entry when the leave was
started. (RR6:25, 28) When asked how Lowe’s was even able to calculate the start
date for the 240-day personal leave limit under which it terminated Brewer, Lowe’s
23
corporate representative could not answer. (RR6:25) Likewise, there was no request
form for Curry, Meador or Adams, or other documentation showing when they
started on the “personal leave” for which they were ostensibly terminated. (RR6:26-
27, 30, 31) As noted above, none of the employees were given the warning letters
required under the policy either – notifying them that they were about to exceed the
personal leave policy and be terminated. (RR4:28, 132, 203; 5:79)
24
SUMMARY OF THE ARGUMENT
There was far more than a scintilla of evidence that Brewer, Meador, Adams
and Curry were terminated because they had made workers’ compensation claims and
that the non-retaliatory reason offered by Lowe’s was a false pretext. It was therefore
error to grant a directed verdict and deny Appellants a fair opportunity to present
their case to a jury.
Specifically, there was evidence that Lowe’s management intentionally worked
employees against their light duty restrictions in order to force them into quitting or
taking additional medical leave that would then be improperly classified as personal
leave subject to a the maximum leave policy.
The evidence showed that the store manager at the Palestine store specifically
intended to move injured employees with work-related injuries into – in his words –
“Lowe’s next customer.” The record further supports that Lowe’s management did
so to take the employees out of the workers’ compensation program where the
payments counted against the store’s budget and impacted the managers’ bonuses and
to free up more hours to give to employees who were not on light duty restrictions.
The effect of working employees against their restrictions and funneling them into
Lowe’s system as though they were on personal leave instead of workers’
compensation related leave was to trigger their termination under the Leave of
Absence policy.
25
Had they been correctly treated as workers’ compensation claimants and not
worked against their restrictions, all four employees could have continued to perform
the light duty work assignments they were formally offered. They would not have
been forced into taking the additional leave that Lowe’s treated as violating the
maximum days of allowed personal leave – which did not apply to workers’
compensation-related leave.
This evidence was sufficient to create a genuine issue of material fact on
causation under the factors announced by the Supreme Court of Texas in Cont'l Coffee
Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996). Considering the record as a
whole, as the Court must, there was more than a scintilla of evidence that these four
employees were terminated by Lowe’s because they had made Worker’s
Compensation claims.
In addition, there was other evidence that Lowe’s proffered reason for their
termination – violation of the Leave of Absence policy – was a false pretext. The
record showed Lowe’s did not even follow that policy with regard to these four
employees. There were no requests forms for personal leave filled out, nor any other
documentation showing why and when these supposed personal leaves were taken.
There were no letters notifying employees that they were now on personal leave.
There were no letters warning employees that they were about to exceed the
permissible leave of absence limits under the policy prior to their terminations.
26
The evidence of retaliatory intent and false pretext was sufficient to raise a
genuine issue of material fact. It was therefore error to grant a directed verdict. The
trial court’s judgment should be reversed and this case should be remanded to the
district court for a trial on the merits.
27
ARGUMENT AND AUTHORITIES
I. STANDARD OF REVIEW FOR DIRECTED VERDICT
A trial court’s directed verdict order is reviewed by the Court under a de novo
standard of review. Selgas v. Henderson County Appraisal Dist., No. 12-10-00021-CV,
No. 12-10-00050-CV, 2011 Tex. App. LEXIS 9091, 4, 2011 WL 5593138 (Tex. App.
– Tyler 2011, pet. denied)(mem. op.)(citing Tex. Mun. Power Agency v. Pub. Util. Comm'n,
253 S.W.3d 184, 192 (Tex. 2007)); Darpino v. T.D.C.J.-I.D., No. 12-03-00021-CV, 2003
Tex. App. LEXIS 10097, 6, 2003 WL 22839250 (Tex. App. – Tyler 2003, no
pet.)(mem. op.)(citing Graham v. Atlantic Richfield Co., 848 S.W.2d 747, 750 (Tex. App. –
Corpus Christi 1993, writ denied)).
A directed verdict is proper only under limited circumstances: (1) when the
evidence is insufficient to raise a material fact issue, or (2) when the evidence
conclusively establishes the right of the movant to judgment or negates the right of
the opponent. See Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77
(Tex. 2000); Farlow v. Harris Methodist Fort Worth Hosp., 284 S.W.3d 903, 919 (Tex.
App. – Fort Worth 2009, pet. denied).
In reviewing the granting of a directed verdict, the Court must determine
whether there is more than a scintilla of evidence to raise a fact issue on the
challenged elements. See Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d
227, 233-234 (Tex. 2004)(citing Collora v. Navarro, 574 S.W.2d 65, 68 (Tex. 1978)). The
Court must “consider all of the evidence in a light most favorable to the party against
28
whom the verdict was instructed and disregard all contrary evidence and inferences”
and “give the losing party the benefit of all reasonable inferences created by the
evidence.” Coastal Transp. at 233 (citing White v. Southwestern Bell Tel. Co., 651 S.W.2d
260, 262 (Tex. 1983)).
If the evidence supporting a finding rises to a level that would enable reasonable,
fair minded persons to differ in their conclusions, then more than a scintilla of
evidence exists. In the Estate of Allen, 301 S.W.3d 923, 926-927 (Tex. App. – Tyler
2009, orig. proceeding); see also Coastal Transp. at 234. Less than a scintilla of evidence
exists when the evidence is so weak as to do no more than create a mere surmise or
suspicion of a fact, and the legal effect is that there is no evidence. Id.
The trial court granted a directed verdict on the ground that there was
insufficient evidence to raise a genuine issue of material fact as to whether the
employees’ filing of their workers’ compensation claims was a cause of their
terminations. (RR6:99) Specifically, the trial court ruled:
The Court specifically makes a finding that the causal connection hasn’t
been met. If necessary, on the rebuttal, the Court finds if it’s found that
cause was established that that’s been rebutted by the employer to show
that there was a legitimate reason for the discharge and so the directed
verdict is granted.
(RR6:99, Tab 1).
Thus, the Court’s review of the directed verdict ruling concerns two related
issues. First, is there more than a scintilla of evidence that the filing of workers’
compensation claims by Appellants was a motivating factor for their termination by
29
Lowe’s. Second, did Lowe’s conclusively establish that the sole reason for the
termination of the four employees was the absence of leave policy.
As detailed in the above facts, the evidence shows the employees were pushed
into taking additional leave by Lowe’s managers working them against light duty
restrictions. The personal leave policy was not actually followed leading up to the
terminations. And the evidence shows management at Lowe’s Palestine store
intended to terminate these employees because their workers’ compensation claims
were affecting managers’ bonuses and using up store hours limited to light duty work.
Reasonable and fair-minded jurors could conclude on this record that Lowe’s
management worked these employees against restrictions as a pretext to terminating
them under Lowe’s absence control policy and thus, the policy was not the true
reason for their terminations.
II. THE EVIDENCE RAISES A GENUINE ISSUE OF FACT AS TO WHETHER
APPELLANTS’ WORKERS’ COMPENSATION CLAIMS WERE A CAUSE OF
THEIR TERMINATIONS.
Texas employs a burden shifting analysis for workers compensation retaliatory
discharge claims under section 451.001. See e.g., Benners v. Blanks Color Imaging, Inc., 133
S.W.3d 364, 369 (Tex. App. – Dallas 2004, no pet.). As part of its prima facie case, the
employee “has the initial burden of demonstrating a causal link between the discharge
and the filing of the claim for workers’ Compensation benefits.” Terry v. S. Floral Co.,
927 S.W.2d 254, 256-57 (Tex. App. – Houston [1st Dist.] 1996, no writ); see also Cont'l
Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996) (applying standard of
30
proof for causation in whistleblower actions to anti-retaliation claims under workers’
compensation); Wal-Mart Stores, Inc. v. Amos, 79 S.W.3d 178, 184 (Tex. App. –
Texarkana 2002, no pet.) (stating that as “an element of a prima facie case for retaliatory
discharge” the employee must “demonstrate the causal link between the discharge and
the filing of the claim”); Dallas Cnty. v. Holmes, 62 S.W.3d 326, 329 (Tex. App. – Dallas
2001, no pet.) (a plaintiff proves a prima facie case by establishing that she “in good
faith, filed a workers’ compensation claim, and there exists a causal connection
between the filing of the claim and the discharge or other act of discrimination.”).
An employee does not need to show that the workers’ compensation claim was
the sole reason for the employer’s conduct; it is sufficient to demonstrate that but for
the filing of the claim, “the employer's action would not have occurred when it did
had the report not been made.” Cont'l Coffee, 937 S.W.2d at 450; Turner v. Precision
Surgical, L.L.C., 274 S.W.3d 245, 252 (Tex. App. – Houston [1st Dist.] 2008, no pet.).
The filing of the Workers compensation claim must be a reason for the employer’s
adverse employment action, but not necessarily the reason.
An employee may prove the causal link between the adverse employment
decision and the workers compensation claim by direct or circumstantial evidence.
Jenkins v. Guardian Indus. Corp., 16 S.W.3d 431, 436 (Tex. App. – Waco 2000, pet.
denied). Circumstantial evidence of the causal link includes:
(1) knowledge of the compensation claim by those making the decision
on termination;
31
(2) expression of a negative attitude towards 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; Benners, 133 S.W.3d at 369.
This type of circumstantial evidence is relevant to determining whether a causal
link exists, both in examining whether the employee established a prima facie case and
the ultimate issue of whether the employee proved a retaliatory motive for the adverse
employment action. See generally Hertz Equip. Rental Corp. v. Barousse, No. 01-10-00949-
CV, 365 S.W.3d 46 (Tex. App. – Houston [1st Dist.] 2011 pet. denied) (reviewing
circumstantial evidence identified in Cont'l Coffee to determine whether evidence was
legally and factually sufficient to support finding of retaliatory discharge); see also
Parker v. Valerus Compression Servs., LP, 365 S.W.3d 61, 66-68 (Tex. App. – Houston [1st
Dist. 2011, pet. denied)(citing Green v. Lowe’s Home Ctrs., Inc., 199 S.W.3d 514, 51-23
(Tex. App. – Houston [1st Dist.] 2006, pet. denied) (reviewing circumstantial evidence
under Cont'l Coffee to determine whether plaintiff established fact issue in response to
summary judgment motion)).
Once the employee establishes a prima facie claim, including a causal link, the
burden shifts to the employer to rebut the alleged discrimination by offering proof of
a legitimate, non-discriminatory reason for its actions. Green, 199 S.W.3d at 519;
32
Benners, 133 S.W.3d at 369. If the employer demonstrates a legitimate, non-
discriminatory reason, then the burden shifts back to the employee “to produce
controverting evidence of a retaliatory motive.” Green, 199 S.W.3d at 519. As noted
above, however, often the same circumstantial evidence that establishes the
employee’s prima facie case will also create a fact issue as to the truthfulness of the
employer’s proffered non-discriminatory reason. Green, Parker, supra.; see also Tex.
Div.-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 314 (Tex. 1994) (employee must
controvert employer’s neutral explanation of employment decision based on direct or
circumstantial evidence). The employee must present evidence that the employer’s
asserted reason for the discharge or other adverse employment action was pretextual
or challenge the employer's evidence as “failing to prove as a matter of law that the
reason given was a legitimate, nondiscriminatory reason.” Benners, 133 S.W.3d at 369.
Applying these standards to the evidence on this record, there was more than a
scintilla of evidence to raise a genuine issue of material fact that the good faith
workers’ compensation claims were a cause of the termination of these four
employees, and that the Leave of Absence policy was not only not followed for these
employees, but was part of a scheme intended to force light duty employees into
either quitting or into what Lowe’s would categorize as personal leave by working
them against their restrictions. This case should have been decided by a jury.
33
A. The Evidence Shows Lowe’s Management Forced The
Employees To Work Against Their Light Duty Restrictions In
Order to Make Them “Lowe’s Next Customers.”
As explained above, causation can be proven by circumstantial evidence,
including the five factors identified by the Texas Supreme Court in Cont’l Coffee as
circumstantial evidence of causation. A claimant need not produce evidence of all
five of these factors, but can create a fact issue by showing there was evidence of at
least three of the five factors. Armendariz v. Redcats USA, L.P., 390 S.W.3d 463, 469
(Tex. App. – El Paso 2012, no pet.); Aust v. Conroe Indep. Sch. Dist., 153 S.W.3d 222,
229 (Tex. App. – Beaumont 2004, no pet.) (the court concluded the employee had
established a causal link between his discharge and his injury by “present[ing]
circumstantial evidence on “most of [the] Continental Coffee factors.”). This record
contains evidence of all five factors. There was definitely a fact issue regarding
causation that should have been submitted to a jury.
At the outset, it is important to clarify the precise nature of the retaliation
alleged in this case. This is not purely an allegation that the employees were directly
fired for making Worker’s Compensation claims. Rather, the evidence shows that all
four employees were systematically worked against their light duty restrictions, forcing
them to take personal or medical leave because they were unable to perform the work
they were being made to perform in violation of their physical restrictions. Thus, in
considering when the retaliation occurred, and by whom, the Court should consider
34
the knowledge, statements and actions of the managers at the Palestine store, which is
where the actual retaliation occurred.
1. Knowledge of the Claims
First, the record shows that managers were well aware that these four
employees had made workers’ compensation claims. As detailed above, there were
two witnesses present at Lowe’s management meetings who heard the store manager,
Gonzalez, and other high-level managers including Mike Bohem, a Zone Manager,
and Nick Boren, the Operations Manager, not only specifically discussing these four
employees’ workers’ compensation claims, but doing so in negative terms –
expressing doubts that they were really injured and plans to make them “Lowe’s next
customers.” (RR4:33-34; 7:27-28)
According to Tinsley (also a Zone Manager), these managers – and particularly
Gonzalez – frequently discussed their displeasure with the fact that these employees
were on workers’ compensation because of the impact these employees’ claims and
light duty statuses were having on the store budget and, hence, these managers’
personal bonuses. (RR7:24-28) Meador, a Department Manager, was also privy to
numerous instances in which Gonzalez expressed similar sentiments that the workers’
compensation claims were impacting his bonuses. (RR4:32-36) In particular,
Gonzalez explained to Meador that Brewer light duty status was taking hours away
from non-restricted employees to whom he would rather give those hours and that he
wished Brewer would quit. (RR3:50) This is echoed in Tinsley’s testimony, where she
35
explained that Gonzalez would move the injured employees around in order to get
them to quit. (RR7:24)
In addition, all four employees testified that they told managers – specifically
Gonzalez Boren and Bohem – that they were being worked against their restrictions.
(RR3:49-50; 4:121-24, 191-92; 5:72-73) All four testified that they complained about
being worked beyond restrictions and were all belittled for complaining, and
pressured to continue to do the work against their restrictions by Gonzalez, Boren
and Bohem. (RR3:49-52; 4:12-15, 121-123, 194-200) Indeed, it was frequently these
very managers who were knowingly pushing these employees to work against their
physical restrictions. (Id.)
There was definitely evidence that the managers responsible for working these
employees against their light duty restrictions to force them into taking personal leave
were well aware that these employees had made workers’ compensation claims.
2. Expression of negative attitude towards injury
There was also more than a scintilla of evidence of the second Cont’l Coffee
factor –managers expressed a negative attitude toward the claimants’ injuries.
Specifically, Tinsley testified that the Palestine store managers discussed these four
employees in particular during store manager meetings, expressing doubts about the
severity of their injuries, doubts about whether they needed to be on light duty, and
negative attitudes about workers’ compensation claims in general because it impacted
managers’ bonuses. (RR7:24-28)
36
This is also evident in statements by Gonzalez to Meador that he was going to
make them “Lowe’s next customers” and that he thought having light duty employees
around cut into hours he needed to budget for non-restricted employees. (RR3:48-51)
It was also consistently shown in the evidence that when these employees, all of
whom were on light duty restrictions – complained that they were being worked
against their restrictions they were belittled and told to “cowgirl up,” put on their “big
girl panties” and other demeaning statements. (RR3:52-53; 4:13-14, 123, 191; 5:76)
They were also threatened directly and indirectly with losing their jobs if they
refused to do work beyond their restrictions. (RR3:50, 52-53; 4:13-14; 5:72)
According to Tinsely, managers often repeated Gonzalez’s catch-phrase that if injured
employees could not do the work, they should be “Lowe’s next customer.” (RR7:25-
26)
Thus, there is evidence to support the second Cont’l Coffee factor as well. The
managers at Lowe’s Palestine store regularly expressed negative attitudes about these
employees’ injuries and their status as workers’ compensation claimants, including a
hope that they could be made to quit or otherwise turned into “Lowe’s next
customers.”
3. Failure to adhere to company policies
There is abundant evidence of the third factor. Not only was there substantial
evidence that managers at the Palestine store failed to abide by Lowe’s light duty
provisions under its workers’ compensation policy, but that Lowe’s also failed to
37
abide by its “absence control policy” – the purported “neutral” policy under which
these employees were ostensibly terminated.1
With regard to the first policy, the record showed that these employees were
systematically worked against their restrictions after having been given light duty work
assignments under Lowe’s workers’ compensation policy. For instance, Brewer was
offered a job as an operator and at the credit card desk, which she accepted and could
have performed with her injuries, but was promptly moved to receiving, where she
was made to lift, turn and move heavy items beyond her restrictions. (RR4:112-116)
Nothing was done in response to her complaint that she was made to work beyond
her restrictions. On one occasion, Brewer had her light duty restriction form thrown
back at her when she tried to explain her restrictions. (RR4:126)
Lowe’s then moved Brewer to the loading dock where she again was worked
consistently beyond her physical restrictions. (RR4:122-23) When she complained
about the work going beyond her physical restrictions, Boren confronted her in the
back of the store and told her to “cowgirl up” and she could do the “the job I told
you to do or you can seek your employment somewhere else.” (RR4:123) This is
consistent with Tinsley’s testimony that Gonzalez’s plan was to move injured
employees around to make them quit. (RR7:24)
1
The evidence of the violation of Lowe’s absence control policy is addressed separately in Section B,
infra.
38
As detailed above, all four of these employees were regularly worked beyond
their light duty restrictions and were derided, pressured and ignored when they tried
to complain. This was definitely in violation of Lowe’s workers’ compensation policy.
Lowe’s corporate representative at trial testified that the light duty policy was in effect
for Worker’s Compensation claimants with physical restrictions, and was to be
honored and respected by managers to prevent employees from suffering additional
injuries or slowing down their healing from prior injuries. (RR5:205-210)
4. Discriminatory treatment compared to other employees
There is also evidence that these employees were treated differently than other
employees because they had made workers’ compensation claims and were subject to
light duty restrictions under Lowe’s workers’ compensation policy. Lowe’s testified
that light duty was made available to both workers’ compensation claimants with
medical restrictions and to other employees who were injured from non-work-related
injuries and “transitional employees.” (RR5:205-207) Under the light duty policy,
Lowe’s managers were only supposed to assign employees tasks that fit within their
physical limitations, knowledge and skills. (RR5:207)(“The employer will only assign
tasks consistent with the employee’s physical abilities, knowledge and skills and will
provide training if necessary.”)
However, the evidence here was that Gonzalez and his management team were
displeased with the effect of the workers’ compensation claims on the store budget
and their managers’ bonuses, and sought to move the employees around to make
39
them quit. (RR7:24-28) There was abundant evidence – detailed above – that these
employees were systematically worked against their physical and light duty restrictions.
The reason for this was because an employee that was not on leave due to an injury
involving workers’ compensation was subject to the maximum leave requirement
under the policy, but there was no limit to the number of leave days an employee
could take because of a workers’ compensation-related injury. (RR6:7-9) Thus, given
testimony that Gonzalez sought to move employees around to make them quit, was
negative about these employees’ injuries, consistently worked them against
restrictions, a reasonable jury could infer discriminatory treatment. These employees
were specifically targeted to be worked against restrictions to force them to take leave
from work that could then be categorized as “personal” leave subject to the absence
control policy and terminated under that policy as a pretext. This is even more
apparent when the Court considers how the absence control policy was actually
applied to these four employees, which is addressed in the next section.
At this point, the Court should already find there was error in granting a
directed verdict based on causation and Lowe’s proffered non-discriminatory reason.
There is sufficient evidence of the first four of the five Cont’l Coffee factors – and
therefore enough circumstantial evidence to establish both that the terminations of
these four employees were caused by their making of workers’ compensation claims,
and that they were deliberately worked against their light duty restrictions in violation
of Lowe’s workers’ compensation policy either to get them to quit, or to force them
40
into taking what Lowe’s could ostensibly categorize as personal leave in order to fire
them under the false pretext that they were applying a neutral absence control policy.
That alone is enough to require this Court to reverse the directed verdict and
remand this case for a new trial. However, there is also critical evidence of the other
Cont’l Coffee factor – Lowe’s proffered explanation is not the true reason.
B. The Evidence Supports That the Leave of Absence Policy Was
A False Pretext; Policy Was Not Even Followed.
The final factor under Cont’l Coffee is whether the stated reason for the
discharge is false. As with the other four factors, there is more than a scintilla of
evidence that these four employees were fired because they made workers’
compensation claims independent of the purportedly neutral application of Lowe’s
absence control policy. Rather, the evidence shows Lowe’s managers mis-categorized
workers’ compensation claimants as though they were taking “personal” leave to
trigger the maximum leave provision of the policy – which otherwise would not have
applied if Lowe’s treated them as workers’ compensation claimants they actually were.
Where an employee’s termination is claimed to be the result of an attendance
policy, the employee raises a fact issue by providing some evidence of retaliatory
intent. Kings Aire, Inc. v. Melendez, 416 S.W.3d 898 (Tex. App. – El Paso 2013, pet.
filed); Echostar Satellite, L.L.C. v. Aguilar, 394 S.W.3d 276, 288 (Tex. App. – El Paso
2012, pet. denied); see also Baptist Memorial Healthcare Sys. v. Casanova, 2 S.W.3d 306, 309
(Tex. App.--San Antonio 1999, pet. denied); Omoro v. Harcourt Brace & Co., No. 05-96-
41
01454-CV, 1999 Tex. App. LEXIS 133, 1999 WL 10388, at *3 (Tex. App. – Dallas
1999, no pet.)(mem. op.)(employee may raise fact issue in face of attendance policy
compliance by producing competent “evidence of a retaliatory motive”).
To begin with, the absence control policy was not even followed as to these
four employees. For each employee, there should have been a form or computer
screen capture in their employee file showing that a request for personal leave had
been made for each employee. Yet there were no forms for any of these four
employees. (RR6:26-28, 30, 31) Each employee’s personnel file should have also had
a leave of absence checklist if this had been the start of a personal leave – yet there
were none. (RR6:22)
In fact, since there was no documentation showing when and why these
supposed personal leaves were initiated, Lowe’s was unable to demonstrate how it
could even calculate whether the maximum leave time had been exceeded. When
asked how Lowe’s was even able to calculate the start date for the 240-day personal
leave limit under which it purportedly terminated Brewer, Lowe’s corporate
representative could not answer. (RR6:25)
There should also have been warning letters to each employee that went out
prior to exceeding the personal leave maximum had these employees actually been
properly subjected to the personal leave policy. (RR6:20-21) There were none –
indeed none of the four workers knew they had been categorized as being on personal
42
leave subject to a maximum number of days until they each received their letter of
termination. (RR4:28, 132, 203; 5:79)
The leave of absence policy was not even followed by Lowe’s with regard to
these four employees. In fact, it does not even appear that any part of it was followed
other than issuing termination letters to set up the pretext that these employees were
fired for taking too much personal leave instead of being fired for making workers’
compensation claims.
This evidence not only further supports the third Cont’l Coffee factor – failure to
abide by set policies – but it also supports the fifth factor – Lowe’s stated reason for
the termination of these employees was false. If the neutral application of the absence
control policy were the actual reason for the termination of Brewer, Meador, Adams
and Curry, then the evidence would show Lowe’s actually followed that policy. The
evidence shows exactly the opposite.
There is abundant evidence detailed above from which a reasonable jury could
infer Lowe’s absence control policy was a false pretext. Gonzalez’s statements during
managers’ meetings that workers’ compensation claims impacted the store budget and
his bonuses and intent to make workers’ compensation claimants into “Lowe’s next
customers” also shows Lowe’s proffered non-discriminatory reason is a false pretext.
Likewise, Tinsley’s testimony that Gonzalez would move injured employees around in
order to make them “quit” also supports the reasonable inference that they were not
actually terminated for taking too much personal leave, but were terminated because
43
they were workers’ compensation claimants whose claims and light duty status were
impacting managers’ bonuses.
In sum, a reasonable jury, had it been allowed to deliberate on this record,
could have concluded that Lowe’s managers in Palestine deliberately moved these
four employees around, working them against their light duty restrictions in violation
of Lowe’s policy in order to get them to quit or force them to take time off from
work that Lowe’s would then categorize as “personal” leave subject to the leave of
absence policy.
This is precisely the sort of situation the court found sufficient to support a
jury’s verdict against an employer in Kings Aire. There, the employer re-categorized
the employee from the unlimited workers’ compensation leave to a limited FMLA
leave, then terminated the employee ostensibly for violating the amount of leave that
would be available for FMLA. Id., 416 S.W.3d at 910. There, as here, the record
showed that the amount of leave had the employee been treated as taking comp-
related leave was unlimited. Finding a genuine issue of material fact as to whether the
employee requested to be put on FMLA leave or whether the employer did it without
the employee’s consent, the court concluded:
There is a fact question as to whether Melendez elected to switch from
the indefinite worker's compensation leave to the time-limited FMLA
leave himself — in which case Kings Aire properly allowed a cause-
neutral absence control “clock” to expire before termination — or
whether Kings Aire switched him to time-limited FMLA leave without
his consent for the specific purpose of retaliating from behind a cause-
neutral veil.
44
Id. The court affirmed the jury’s verdict in favor of the employee. Id.
Here, the evidence shows that Lowe’s deliberately worked these employees
beyond their light duty restrictions to force them into taking leaves of absence, and
then, without the employees’ request or knowledge, categorized all four employees as
taking personal leave instead of what should have been unlimited workers’
compensation leave.
The cases relied on by Lowe’s involving neutral absence of leave policies are all
easily distinguishable.2 None of those cases involve direct evidence of discriminatory
intent, like Gonzalez’s statement that he sought to make workers’ compensation
claimants into Lowe’s next customers. None of those cases involved evidence that
workers were moved around and worked against their restrictions to get them to quit
or take additional leave. None of those cases involve evidence that workers were
offered light duty assignments according to a company policy put then were insulted,
belittled, pressured and threatened when they complained that they were being
worked beyond their light duty assignments and against their physicians’ restrictions.
None of those cases involve evidence that the workers were categorized as taking
personal leave without their knowledge or consent. Finally, none of those cases
involve evidence that the absence control policy was not even followed.
2
E.g. Parker, 365 S.W.3d at 66-68; Terry, 927 S.W.2d at 256-57; Deveaux v. Compaq Computer Corp., No. 01-95-
01104-CV, 1996 Tex. App. LEXIS 4308, 15, 1996 WL 531959 (Tex. App. – Houston [1st Dist.] 1996, no writ)(not
designated for publication);
45
This is far more evidence of retaliatory motive and false pretext in the
application of an absence control policy than the courts found sufficient in either
Kings Aire or Echostar, supra. The Echostar opinion is particularly instructive, given
certain key facts it shares with this case:
In the instant case, several of the Continental Coffee . . . factors are present
and establish the initial causal link. For example, there is no question that
Appellants had knowledge of the compensation claim and that the
people making the decision to terminate were aware of the claim, a
factor favoring Aguilar. Aguilar testified that other employees showed a
negative attitude towards his condition, while Appellants provided
contravening testimony. Appellants deviated from their policies in a
number of respects, specifically in that Appellants’ policy is to provide
transitional or light duty for injured employees, however after only a few
days on light duty, Aguilar was told to either return to his regular duties
or be fired. Appellants further deviated from their policies by failing to
notify Aguilar in writing, advising him of the expiration of his leave prior
to terminating his employment.
Id., 394 S.W.3d at 288-89.
Here, in addition to all of these same facts being present, the record also shows
that workers’ compensation claimants at the Palestine store: were specifically worked
against their light duty restrictions; were derided, belittled and pressured when they
complained and asked for their restrictions to be followed; were threatened with
termination when they complained; were the target of a plan to make them quit
because their injuries were costing store managers their bonuses; and never requested
personal leave (nor were they ever told they were on limited personal leave until it was
too late).
46
A reasonable jury could conclude both that the making of their workers’
compensation claims was a cause of their terminations and that Lowe’s stated
alternative reason was false. It was error to direct a verdict for Lowe’s.
47
PRAYER
Appellants presented more than a scintilla of evidence supporting most, if not
all, of the Cont’l Coffee factors by which causation can be proven in retaliation cases.
There was evidence that Lowe’s managers knew of the claims. There was evidence
these managers expressed a negative attitude toward the injuries and claims and
specifically intended to make these employees quit because managers were losing
bonuses. Lowe’s management failed to adhere to several company policies –
including a complete failure to abide by the absence control policy that was offered as
the non-retaliatory reason for the discharge of the four employees and failure to
recognize or follow Lowe’s light duty policy for workers’ compensation claimants.
Lowe’s management singled out workers’ compensation claimants on light duty to
work them beyond their light duty restrictions to force employees into taking leave
from work that Lowe’s would then categorize as personal leave instead of workers’
compensation-related leave.
There was far more than a mere scintilla of evidence in this case to show
causation, retaliatory motive and false pretext. This case should be resolved by a jury.
It was error to grant a directed verdict.
Appellants respectfully pray that this Court reverse the judgment of the district
court and remand this case for a new trial on the merits. Appellants further request
any other relief as the Court deems just and proper, including costs for this appeal.
48
Respectfully submitted,
GRAVELY & PEARSON, LLP
425 Soledad, Suite 600
San Antonio, Texas 78205
Telephone: (210) 472-1111
Facsimile: (210) 472-1110
By:
Matthew R. Pearson
State Bar No. 00788173
And
THE MCBRIDE LAW FIRM, of counsel
to GRAVELY & PEARSON, LLP
425 Soledad, Suite 620
San Antonio, Texas 78205
Telephone: (210) 472-1111
Facsimile: (210) 881-6752
By:
Brendan K. McBride
State Bar No. 24008900
ATTORNEYS FOR
APPELLANTS, BRENDA
BREWER, DEANNA
MEADOR, PENNY ADAMS, and
SABRA CURRY
49
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document has been
forwarded on this 19th day of March, 2015 via electronic service through Texas.gov on
Appellee’s counsel of record:
Holly Williamson
Jamilah Mensah
Hunton & Williams, LLP
Brendan K. McBride
CERTIFICATE OF COMPLIANCE
I hereby certify that this brief is in compliance with the rules governing the length
of briefs prepared by electronic means. The brief was prepared using Microsoft Word
2010. According to the software used to prepare this brief, the total word count,
including footnotes, but not including those sections excluded by rule, is 9,490.
Brendan K. McBride
50
NO. 12-14-00155-CV
IN THE TEXAS COURT OF APPEALS FOR THE TWELFTH DISTRICT
TYLER, TEXAS
* * * * *
BRENDA BREWER, DEANNA MEADOR, PENNY ADAMS, and SABRA
CURRY
APPELLANTS
V.
LOWE’S HOME CENTERS, INC.,
APPELLEE
* * * * *
On Appeal from the 3rd Judicial District Court
Anderson County, Texas
District Court Cause No. 3-41083
* * * * *
APPELLANTS’ APPENDIX TO BRIEF
______________________________________________________________
TAB
Transcript of Oral Ruling on Motion for Directed Verdict (RR6:98-99) ....................... 1
Trial Court’s Final Judgment (CR6:307-309) ...................................................................... 2
Notice of Appeal (CR6:316-317) .......................................................................................... 3
51
TAB 1
TAB 2



TAB 3