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Cardenas v. Bilfinger Tepsco, Inc.

Court of Appeals of Texas, First District

June 1, 2017


         On Appeal from the 215th District Court Harris County, Texas Trial Court Case No. 2015-06686

          Panel consists of Justices Keyes, Bland, and Huddle.


          Evelyn V. Keyes Justice

         Appellant, Alejandro Cardenas, sued his former employer and appellee, Bilfinger TEPSCO, Inc. ("Bilfinger") for retaliation under the Texas Workers' Compensation Act ("TWCA"), and the trial court rendered summary judgment in favor of Bilfinger. In three issues on appeal, Cardenas argues that the trial court erred in rendering summary judgment because (1) Cardenas presented evidence establishing a prima facie claim of retaliation and demonstrating that Bilfinger's stated reason for his termination was false; (2) Bilfinger's motion for summary judgment was premature; and (3) he did not receive adequate notice of the motion for summary judgment. We conclude that Cardenas failed to raise a genuine issue of material fact on his retaliation claim and that the trial court did not abuse its discretion in ruling on the motion when it did, and, accordingly, we affirm.


         Cardenas, a journeyman electrician, began working for Bilfinger as a contract worker in July 2013 on a project described as the "Pad 5 North Storage Project" ("the Project"). On September 25, 2013, he injured his back on the job while moving heavy machinery. Bilfinger, according to its policy, completed an Employee Injury Report and gave it to Cardenas for his review. Cardenas, the superintendent for the Project, Felipe Narvaez, and other Bilfinger management personnel signed the injury report on September 26, 2013. Cardenas was then placed on light duty and continued to work.

         On October 11, 2013, as part of his ongoing duties to manage the Project's personnel needs, Narvaez met with other Bilfinger managers to discuss continuing "a reduction in force and the laying off of additional electricians and electrician helpers" that had begun the month before. Following this October 11 meeting, Narvaez compiled a list of workers to be laid off as part of Bilfinger's reduction in force on the Project, including Cardenas and "several other electricians and electrician helpers."

         On October 14, 2013, Cardenas retained an attorney to pursue a workers' compensation claim on his behalf. On October 16, 2013, Bilfinger's workers' compensation insurance carrier was notified of Cardenas's workers' compensation claim, and it in turn notified Bilfinger that same day that Cardenas had filed a claim. Bilfinger then filed an official "Employers First Report of Injury or Illness" ("First Report of Injury") with its insurance carrier.

         Bilfinger terminated Cardenas's employment on October 17, 2013. It provided him a preprinted "Termination Statement" filled in with his name and other identifying information and signed by Narvaez and a witness, Vilma Reyes. Under "Reason for Termination, " there was an "X" next to "reduction in force, " although there were several other options listed as well, including "quit" and "sickness or other physical disability." Finally, the form contained the statement, "This is to certify that I have suffered NO injury while working for [Bilfinger] that has not been previously reported, " and it had a blank line for the employee's signature.

          On February 5, 2015, Cardenas filed suit against Bilfinger, alleging that it fired him in retaliation for his filing of a workers' compensation claim in violation of the TWCA. With his petition, Cardenas also filed and served discovery requests.

         On March 3, 2016, Bilfinger notified Cardenas of the oral hearing on its motion for summary judgment, set for April 29, 2016, and stated that Bilfinger "will timely file its Motion for Summary Judgment prior to the hearing as required by the Texas Rules of Procedure."

         On April 6, 2016, Bilfinger filed its traditional and no-evidence motion for summary judgment and served it on Cardenas's counsel electronically. Bilfinger argued in its motion for summary judgment that Cardenas could not establish a prima facie case of workers' compensation retaliation because he could not "show a causal link between his filing of . . . a workers' compensation claim and his termination." Bilfinger also argued that even if Cardenas could establish a prima facie case of retaliation under the TWCA, Bilfinger's own summary judgment evidence "conclusively establishes that it terminated [Cardenas] solely for a legitimate, non-retaliatory reason, that being Bilfinger's implementation of a reduction in force on the Project." Bilfinger asserted that Cardenas could not show that its stated reason for his termination was pretextual.

         Attached as evidence to its motion for summary judgment were affidavits, including the affidavit superintendent Felipe Narvaez; deposition transcripts, including the depositions of Cardenas, the Project's safety supervisor, Mike Taff, and the general foreman for the electricians, Benito Juarez; and other documents.

         Bilfinger's internal "Employee Injury/Illness Report, " completed the day after Cardenas's injury, states that Cardenas was injured when he attempted to manually move a threading machine rather than use proper equipment. Other evidence, including Cardenas's own deposition, showed that he returned to work the day after his injury and that Bilfinger employees checked on Cardenas's well-being and took him to the doctor. Taff, Juarez, and Narvaez stated that around the same time Cardenas was injured and retained an attorney, the Project was nearing completion and Bilfinger began its customary practice of reducing the size of its workforce on the Project. Taff and Juarez testified in their deposition that this was common in the industry, and Taff stated that six or seven of the electrical workers on the Project were terminated for "reduction in force" in the weeks before and after Cardenas's termination. Taff, Juarez, and Narvaez testified that Cardenas was likewise terminated as part of a reduction in force, and they all stated that they were not aware that Cardenas had hired an attorney to pursue a workers' compensation claim at the time Cardenas was terminated. Cardenas stated in his deposition that he never told anyone at Bilfinger about the hiring of the attorney or filing of the claim at the time those things occurred. Cardenas acknowledged that no one at Bilfinger discouraged him from filing the claim or made any negative comments to him about it.

         Narvaez averred that, as the Project superintendent, he was solely responsible for making personnel decisions, including the decision to terminate Cardenas, and that he began attending meetings in September 2013 regarding manpower needs and estimated dates for completion of the Project. The record demonstrated that Bilfinger began to reduce the number of workers, including electricians, at the end of September and in early October. Narvaez averred that on October 11, 2013, he attended another meeting and then compiled a list of more electricians to be laid off as part of Bilfinger's reduction in force, a list that included Cardenas and several other electricians and electrician helpers. Narvaez had no knowledge at the time Bilfinger terminated Cardenas's employment on October 17, 2013, that Cardenas had retained an attorney or filed a workers' compensation claim.

         Cardenas testified in his deposition about his work history, in which he had previously been terminated by a different employer as part of a reduction in the workforce on a project, and he agreed that such terminations were standard in the industry. He testified that he had worked for Bilfinger full time as a journeyman electrician making $30 per hour, often working more than fifty hours a week. He also testified that the only times he missed work was to attend doctor's appointments with the mother of his child. Following his injury, Cardenas testified that he did not ask anyone at Bilfinger what he should do and instead chose to hire an attorney, explaining, "That was when they were getting ready to lay me off. I contacted [the lawyer] to see what should be done about my back injury." Cardenas also testified about a conversation between himself and Juarez in which Juarez told him that he was going to get his hours "cut down to 40 hours." Cardenas did not know if this was related to his injury or to the reduction in workforce.

         Cardenas acknowledged that he never told Narvaez that he was pursuing a workers' compensation claim. Cardenas stated that Narvaez told him he was being fired because "There was [a] reduction, that the job was slowing down, " but he believed the "real reason" he was laid off was his injury. When asked whether he had facts or objective evidence to support his belief, Cardenas answered, "No." Cardenas acknowledged that no one at Bilfinger made any negative comments regarding his injury or his filing of a workers' compensation claim. He received workers' compensation benefits starting in the fall of 2013 and stopped receiving them in October 2015.

         Cardenas objected to Bilfinger's motion for summary judgment, asserting that the motion, filed six weeks before the end of the discovery period, was untimely and that he "did not receive the motions for summary judgment at least 24 days prior to the date of the hearing on the motion." He filed a verified motion for continuance, arguing that the May 20, 2015 discovery deadline established in the agreed docket control order had not expired and that "all discovery has not been completed." Cardenas identified six individuals that he wished to depose "regarding [Bilfinger's] true motives in terminating [him]." He did not provide any other information about these individuals except to say that "[m]ost if not all of these witnesses allegedly no longer work for [Bilfinger] and must be located and served with subpoenas." Cardenas stated in his verified motion that the deposition of Narvaez was scheduled for May 9, 2016, but he provided no other information regarding his discovery efforts.

         Subject to his objections and motion for continuance, Cardenas responded to Bilfinger's motion for summary judgment by arguing that he had established a prima facie retaliation case and had presented some evidence that Bilfinger's stated reason for his termination was false. He averred that his employers at Bilfinger, including Taff and Juarez, were aware of his on-the-job injury the day it happened. Taff took him to the doctor on three occasions, and Bilfinger put him on light duty work. Cardenas also argued that Bilfinger's filing of its First Report of Injury with its insurance carrier demonstrated its knowledge of his claim, ...

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