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Simon v. Pentair Valves & Controls U.S. LP

Court of Appeals of Texas, Fourteenth District

March 29, 2018

ANTHONY SIMON, Appellant
v.
PENTAIR VALVES & CONTROLS U.S. LP AND KELLY SERVICES, INCORPORATED, Appellees

          On Appeal from the 334th District Court Harris County, Texas Trial Court Cause No. 2015-51477

          Panel consists of Chief Justice Frost and Justices Jamison and Busby.

          MEMORANDUM OPINION

          J. BRETT BUSBY JUSTICE.

         Appellant Anthony Simon challenges the trial court's grant of no-evidence summary judgment to appellees, Pentair Valves & Controls U.S. LP and Kelly Services, Inc., as to Simon's retaliation and intentional-injury claims. Simon contends the trial court erred in granting the summary judgment motions because he produced enough evidence to show that a genuine issue of material fact existed for each claim. We hold the trial court did not err by granting the appellees' no-evidence motions for summary judgment because Simon failed to produce more than a scintilla of evidence as to the elements challenged as insufficient by appellees in their motions. Specifically, we hold Simon failed to produce sufficient evidence for his retaliation claim because he failed to show that his employment was terminated, or that any termination was causally linked to his filing of a workers' compensation claim. Furthermore, as to his intentional-injury claim, we hold that Simon failed to produce evidence that either of the appellees had the requisite intent to injure him. We therefore affirm the trial court's grant of no-evidence summary judgment to both appellees.

         Background

         Pentair Valves & Controls U.S. LP provides flow management solutions to industries around the world. To assist with increases in work flow or particular projects, Pentair frequently utilizes temporary workers. Kelly Services, Inc. is in the business of, among other things, providing temporary workers to its customers. At the time of the events in this case, Kelly Services was providing Pentair with temporary workers. Kelly Services hired Simon in August 2012 and placed him with Pentair in May 2013, as a temporary worker in one of Pentair's warehouse facilities.

         According to medical records and Cheryl Davis, a staffing agent at Kelly Services during the time, Simon became ill and broke out in a skin rash due to what Simon described as contact with contaminated crates in Pentair's warehouse. As a result, Simon filed a workers' compensation claim and was given medical treatment. Simon's treating physician diagnosed him with "contact dermatitis and other eczema" from an "unspecified cause." Simon was prescribed medication and told to have "no contact with other people until all rashes [were dried] out and no more new rash[es] appear[ed]." According to Theresa Borzik, a claims specialist with Kelly Services' workers' compensation insurer, Simon was cleared to return to work on May 17, because Simon had reached "maximum medical improvement." He was cleared by Kelly Services to return to the same work he had been doing before. Simon continued to present himself for follow-up medical appointments, alleging re-exposure, and received additional treatment between May 28 and June 17, 2013, as a result. In June, Simon's treatment ended and he was cleared to return to work with no restrictions; in July, his workers' compensation claim was closed.

         Simon continued to work at Pentair's facility in July and August, where he worked alongside other temporary workers, including Spencer Robertson. In September, Simon alleged he sustained an injury while working and filed another workers' compensation claim; the medical records indicate this injury was a bite on the arm caused by a nonvenomous insect. At this time, Simon was given medicine and restricted to minimal use of his right arm for a few days. A month later, in November, Simon reported another injury. The diagnosis was another nonvenomous insect bite to his arm. The medical report indicated that no medication was needed because Simon had reached "maximum medical improvement." Simon continued to work at Pentair's facility for a few more weeks, at which point he was informed that he would no longer be needed at Pentair. Simon claims he was terminated in December 2013, but both appellees claim he ceased working at Pentair in November 2013, because Pentair's temporary assignment was completed.[1] Kelly Services later placed Simon with another company as a temporary employee, where he remained until June 2014 when he was hired on a permanent basis.

         In September 2015, Simon sued both Pentair and Kelly Services, asserting multiple claims. In response, both appellees filed traditional motions for summary judgment as to Simon's claims based on the exclusive-remedy provision of the Texas Workers' Compensation Act ("TWCA"). After the trial court granted the motions, Simon filed his second and third amended petitions, alleging retaliatory discharge and an intentional tort. Simon disputed the reason for his dismissal from Pentair and contended he was retaliated against because of his workers' compensation claims, in violation of the TWCA. Simon also contended he was intentionally injured by appellees because after his first outbreak, they knew with substantial certainty that he would be injured from continuing to work with moldy crates. As alleged by Simon, appellees forced him to continue working with the crates anyway, causing his illness to worsen to such a degree that he had to be hospitalized.

         Each appellee filed a separate no-evidence motion for summary judgment. As to Simon's retaliation claim, appellees asserted there was no evidence that Simon's employment was (1) terminated or (2) terminated because Simon filed a workers' compensation claim. As to Simon's intentional-tort claim, each of the appellees asserted there was no evidence of any intentional conduct by it. The trial court granted each no-evidence motion for summary judgment as to both of Simon's claims. The trial court also signed orders sustaining objections to Simon's proffered summary judgment evidence. Simon then filed this appeal.

         Analysis

         Simon contends that the trial court erred when it granted both appellees no-evidence summary judgment on his retaliation and intentional-tort claims. We conclude Simon did not meet his burden of presenting more than a scintilla of probative evidence raising a genuine issue of material fact as to the elements challenged by appellees in their summary judgment motions.

         I. Standard of review

         We review summary judgments de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). We take as true all evidence favorable to the nonmovant, indulging every reasonable inference and resolving all doubts in the nonmovant's favor. Dias v. Goodman Mfg. Co., L.P., 214 S.W.3d 672, 675-76 (Tex. App.-Houston [14th Dist.] 2007, pet. denied). A movant may obtain a no-evidence summary judgment if there is no ...


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