United States District Court, S.D. Texas, Houston Division
Rosenthal Chief United States District Judge.
Enrique Cristain sued his former employer, Hunter Buildings
& Manufacturing, LP, alleging that it violated the Age
Discrimination in Employment Act and the antiretaliation
provisions of the Texas Workers' Compensation Act when it
terminated him two weeks after he was injured on the job.
Hunter moved for summary judgment, and Cristain responded.
(Docket Entry Nos. 17, 18). Based on the parties' motion
and response, the record, and the applicable law,
Hunter's motion for summary judgment is denied.
call will proceed as scheduled on July 6, 2017, at 2:00 p.m.
The reasons for the ruling are explained below.
Buildings is a Houston-based company that designs and builds
modular blast-resistant buildings. (Docket Entry No. 17 at
2). Hunter hired Cristain in August 2014 as a
“Helper” in the Outfitting Department.
(Id.) His duties were primarily manual labor.
(Id.) Cristain was 55 years old when hired; the next
oldest worker on his work team was approximately 42. (Docket
Entry No. 18, Ex. 2 at 3).
February 5, 2015, Cristain was working in an unfinished
modular building on a six-foot high scaffold when the
scaffold fell out from under him. (Docket Entry No. 17 at 3).
According to Cristain, the scaffold hit him on the leg and
lower back as it fell. (Docket Entry No. 18 at 8). A coworker
contacted Kevin Edmonds, Hunter's Health, Safety,
Security, and Environmental Manager, after the incident.
(Id. at 8-9). Edmonds found that Cristain was not
bleeding or unconscious and took him to a doctor with whom
Hunter had an account for any occupational injuries.
(Id.). The doctor diagnosed a lumbar strain, with no
need for physical restrictions. (Docket Entry No. 18, Ex. 8
at 2). Cristain asked that he be allowed to stay home the
following day, a Friday. (Docket Entry No. 17, 4). Edmonds
initially suggested that Cristain could come to work and
perform some limited duties, but after repeated requests
allowed him the day off. (Id.) Edmonds went to
Cristain's home on February 8, a Sunday, to check on him,
and drove him to work the following morning. (Id.).
Edmonds filed a claim with Hunter's workers'
compensation carrier that day, February 9, after Cristain
again asked permission to go home to recover from his pain.
(Id. at 4-5).
the following weeks, Edmonds continued to take Cristain to
follow-up medical appointments. (Docket Entry No. 17 at 5).
On February 13, 2015, Edmonds offered Cristain a
modified-duty position of “Flow Monitor.”
(Id.). Hunter specifically created the position to
accommodate Cristain during his recovery. (Id.). The
new duties were more ministerial in nature, including
monitoring and documenting manufacturing projects and
communicating the progress on them to the supervisor.
(Id.). Cristain started these duties on February 16,
after starting his new position, Cristain received several
disciplinary actions. On February 17, 2015, Edmonds
reprimanded Cristain after finding him playing on his cell
phone in the break room while he was not on a break.
(Id. at 8). When this happened again on February 18,
Edmonds said that he would put a written warning in
Cristain's file. (Id.). On February 19, Edmonds
reprimanded Cristain for failing to pick up the paperwork for
his Flow Monitor job. (Docket Entry No. 17-1 at 5-6). Edmonds
documented this and the previous incidents in an
“Employee Warning Notice.” (Docket Entry No.
17-2, Ex. G at 17). Cristain denied that he was ever
counseled about being on his phone or for failing to pick up
paperwork. (Docket Entry No. 17-1 at 6; Docket Entry No. 18,
Ex. 1 at 3).
was terminated on February 20, 2015. (Docket Entry No. 17 at
8-9). The parties offer divergent accounts of what happened
that day. Edmonds asserted that he had recently received the
results of Hunter's investigation into the February 5
scaffold accident. (Id. at 7). The report stated
that Cristain had violated Hunter's safety rules by using
the scaffold without taking the required training or
completing a safety analysis. (Id.). Edmonds
intended to discipline Cristain about these safety
violations. (Id. at 9). Before calling him into his
office, Edmonds prepared another Employee Warning Notice,
leaving blank the sections for “Employee Statement,
” “Action Taken, ” and the signature lines.
(Id.). He intended to mark the box for
“Warning.” (Id.). According to Edmonds,
Cristain “became very defensive, loud and
aggressive” when told that he was being disciplined.
(Docket Entry No. 17-1 at 7). He “yelled at [Edmonds]
and called [him] a ‘bitch.'” (Id.).
Edmonds testified that he decided to fire Cristain based on
this outburst. (Id.). He marked the box for
“Dismissal” in the “Action Taken”
section of the Employee Warning Notice. (Id.). When
Cristain refused to sign the form, the Human Resources
Manager signed instead. (Id.).
alleged that Edmonds had made comments about his age in the
weeks leading up to his termination. (Docket Entry No. 18,
Ex. 1 at 3). Cristain specifically alleged that while Edmonds
was driving him to the doctor on February 5, immediately
after the fall, Edmonds said that he “was only hurting
because [he] was old . . . and that [he] wasn't getting
better because [he] was old.” (Id.). According
to Cristain, when he went into Edmonds's office on
February 20, he was handed a form marked
“dismissal” and told to sign it. (Id.).
When he asked why, Edmonds told him that he “was old
and not worth anything and that [he] had five minutes to
leave or he would call the police.” (Id.).
Cristain denied being abusive and using the term
“bitch.” (Id.). Edmonds denied calling
Cristain an “old man, ” saying that he was
“useless, ” or making similar age-based comments.
(Docket Entry No. 17-1 at 8).
filed a charge with the Equal Employment Opportunity
Commission and the Fair Employment Practices Agency in July
2015. (Docket Entry No. 18, Ex. 2 at 2). He received a notice
of right to sue letter in May 2016 and filed this suit in
August 2016. Discovery and this motion followed.
Summary Judgment Standard
judgment is required when ‘the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.'”
Trent v. Wade, 776 F.3d 368, 376 (5th Cir. 2015)
(quoting Fed.R.Civ.P. 56(a)). “A genuine dispute of
material fact exists when the ‘evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.'” Nola Spice Designs, LLC v. Haydel
Enters., Inc., 783 F.3d 527, 536 (5th Cir. 2015)
(quoting Anderson v. Liberty Lobby, 477 U.S. 242,
248 (1986)). “The moving party ‘bears the initial
responsibility of informing the district court of the basis
for its motion, and identifying those portions of [the
record] which it believes demonstrate the absence of a
genuine issue of material fact.'” Id.
(quoting EEOC v. LHC Grp., Inc., 773 F.3d 688, 694
(5th Cir. 2014)); see also Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986).
the non-movant bears the burden of proof at trial, the movant
may merely point to the absence of evidence and thereby shift
to the non-movant the burden of demonstrating by competent
summary judgment proof that there is an issue of material
fact warranting trial.” Id. (quotation marks
omitted); see also Celotex, 477 U.S. at 325.
Although the party moving for summary judgment must
demonstrate the absence of a genuine issue of material fact,
it does not need to negate the elements of the
nonmovant's case. Boudreaux v. Swift Transp.
Co., 402 F.3d 536, 540 (5th Cir. 2005). “A fact is
‘material' if its resolution in favor of one party
might affect the outcome of the lawsuit under governing
law.” Sossamon v. Lone Star State of Texas,
560 F.3d 316, 326 (5th Cir. 2009) (quotation omitted).
“If the moving party fails to meet [its] initial
burden, the motion [for summary judgment] must ...