Cristain v. Hunter Buildings & Manufacturing, L.P.
MEMORANDUM AND OPINION entered DENYING 17 MOTION for Summary Judgment . Docket call remains set for 7/6/17 at 2:00 pm. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4)
United States District Court
Southern District of Texas
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
LUIS ENRIQUE CRISTAIN,
HUNTER BUILDINGS &
June 19, 2017
David J. Bradley, Clerk
CIVIL ACTION NO. H-16-2462
MEMORANDUM AND OPINION
Luis 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.
Docket call will proceed as scheduled on July 6, 2017, at 2:00 p.m. The reasons for the
ruling are explained below.
Hunter 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).
On 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.
Over 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, 2015. (Id.).
Soon 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. 171 at 6; Docket Entry No. 18, Ex. 1 at 3).
Cristain 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.).
Cristain 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).
Cristain 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
The Summary Judgment Standard
“Summary 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).
“Where 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 be denied, regardless of the nonmovant’s response.” United
States v. $92,203.00 in U.S. Currency, 537 F.3d 504, 507 (5th Cir. 2008) (quoting Little v. Liquid
Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam)).
“Once the moving party [meets its initial burden], the nonmoving party must ‘go beyond the
pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and
admissions on file, designate specific facts showing that there is a genuine issue for trial.’” Nola
Spice, 783 F.3d at 536 (quoting LHC Grp., 773 F.3d at 694). The nonmovant must identify specific
evidence in the record and articulate how that evidence supports that party’s claim. Baranowski v.
Hart, 486 F.3d 112, 119 (5th Cir. 2007). “This burden will not be satisfied by ‘some metaphysical
doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only
a scintilla of evidence.’” Boudreaux, 402 F.3d at 540 (quoting Little, 37 F.3d at 1075). In deciding
a summary judgment motion, the court draws all reasonable inferences in the light most favorable
to the nonmoving party. Connors v. Graves, 538 F.3d 373, 376 (5th Cir. 2008); see also Nola Spice,
783 F.3d at 536.
The ADEA Claim
The ADEA states that “[i]t shall be unlawful for an employer . . . to discharge any individual
. . . because of such individual’s age.” 29 U.S.C. § 623(a)(1). “A[n ADEA] plaintiff must prove by
a preponderance of the evidence (which may be direct or circumstantial), that age was the ‘but-for’
cause of the challenged employer decision.” Gross v. FBL Fin. Servs., 557 U.S. 167, 180 (2009).
“. . . ‘[B]ut-for cause’ does not mean ‘sole cause.’” Leal v. McHugh, 731 F.3d 405, 415 (5th Cir.
2013). “[A]n employer may be liable under the ADEA if other factors contributed to its taking the
adverse action, as long as ‘age was the factor that made a difference.’” Id. (quoting Jones v. Okla.
City Pub. Schs., 617 F.3d 1273, 1278 (10th Cir. 2010)).
Age discrimination can be proven through direct or circumstantial evidence. Russell v.
McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000). “Where a plaintiff produces direct
evidence of discrimination, he is ‘entitled to bypass the McDonnell Douglas burden-shifting
framework commonly applied in discrimination cases and proceed directly to the question of
liability.’” Stone v. Par. of E. Baton Rouge, 329 F. App’x 542, 545 (5th Cir. 2009) (quoting Moore
v. U.S. Dep’t of Agric., 55 F.3d 991, 995 (5th Cir. 1995)); see also McDonnell Douglas Corporation
v. Green, 411 U.S. 792, 802 (1973). “Direct evidence is evidence that, if believed, proves the fact
of intentional discrimination without inference or presumption.” Woodhouse v. Magnolia Hosp.,
92 F.3d 248, 252 (5th Cir. 1996). “In such ‘direct evidence’ cases, ‘the burden of proof shifts to the
employer to establish by a preponderance of the evidence that the same decision would have been
made regardless of the forbidden factor.’” Stone, 329 F. App’x at 545 (quoting Fierros v. Tex. Dep’t
of Health, 274 F.3d 187, 192 (5th Cir. 2001)).1
The Supreme Court held in Gross that the burden of persuasion in an ADEA case, unlike
Title VII cases, does not shift to the employer to show that the action would have been taken
regardless of age. Gross, 557 U.S. at 180. Courts disagree on whether Gross applies only to trial
or to summary judgment as well. Compare Jackson v. Cal-Western Packaging Corp., 602 F.3d 374,
If no direct evidence exists, the court uses the familiar burden-shifting framework under
McDonnell Douglas. Jackson, 602 F.3d at 378. Under McDonnell Douglas, a plaintiff alleging
discrimination must first make a prima facie showing. Wesley v. Gen. Drivers, Warehousemen &
Helpers Local 745, 660 F.3d 211, 213 (5th Cir. 2011). A prima facie case of age discrimination is
established if a plaintiff shows that: “(1) he was discharged; (2) he was qualified for the position;
(3) he was within the protected class at the time of discharge; and (4) he was either i) replaced by
someone outside the protected class, ii) replaced by someone younger, or iii) otherwise discharged
because of his age.” Berquist v. Wash. Mut. Bank, 500 F.3d 344, 349 (5th Cir. 2007) (citations
omitted). The burden then shifts to the employer to articulate some legitimate nondiscriminatory
reason for the challenged action. McDonnell Douglas, 411 U.S. at 802; Vaughn v. Woodforest Bank,
665 F.3d 632, 636 (5th Cir. 2011). If the defendant meets the burden of production, the plaintiff
may show that the stated reason was pretextual “either through evidence of disparate treatment or
by showing that the employer’s proffered explanation is false or unworthy of credence.” Jackson,
602 F.3d at 378 (internal quotation marks omitted). “[T]he trier of fact may . . . consider the
evidence establishing the plaintiff’s prima facie case and inferences properly drawn therefrom on
the issue of whether the defendant’s explanation is pretextual[.]” Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 143 (2000) (internal quotation marks and alteration omitted).
378 (5th Cir. 2010) (McDonnell Douglas burden shifting applies for circumstantial agediscrimination evidence post-Gross), with Geiger v. Tower Auto., 579 F.3d 614, 621 (6th Cir. 2009)
(Gross precludes burden-shifting for direct evidence at summary judgment); Mora v. Jackson Mem’l
Found., Inc., 597 F.3d 1201, 1203-04 (11th Cir. 2010) (Gross’s “but-for” test precludes “same
decision” defense). The Fifth Circuit has not decided the question for direct evidence cases.
Because Hunter’s motion in this case fails under either the Gross standard or the less strict Stone
standard, this court does not need to decide the question either.
Workplace comments provide evidence of discrimination if they are: “1) related [to the
protected class of persons of which the plaintiff is a member]; 2) proximate in time to the
[complained-of adverse employment decision]; 3) made by an individual with authority over the
employment decision at issue; and 4) related to the employment decision at issue.” Id. at 546
(quoting Patel v. Midland Mem’l Hosp. & Med. Ctr., 298 F.3d 333, 343-44 (5th Cir. 2002))
(alterations in original). The four-part test applies when comments are offered as direct evidence
of discrimination. See Reed v. Neopost USA, Inc., 701 F.3d 434, 441 (5th Cir. 2012) (citing Brown
v. CSC Logic, Inc., 82 F.3d 651, 655 (5th Cir. 1996), abrogated on other grounds by Reeves, 530
U.S. at 134). Comments that do not meet all of these criteria are “stray remarks” that fail to create
a factual dispute about the employment decision. Patel, 298 F.3d at 343. “Where a plaintiff offers
remarks as circumstantial evidence alongside other alleged discriminatory conduct . . . a plaintiff
need only show (1) discriminatory animus (2) on the part of a person that is either primarily
responsible for the challenged employment action or by a person with influence or leverage over the
relevant decisionmaker.” Reed, 701 F.3d at 441 (citing Laxton v. Gap, 333 F.3d 572, 583 (5th Cir.
Cristain was discharged, he was qualified for the position, and he was over 40 when he was
fired. There is no allegation that he was replaced.2 Cristain has cited as direct evidence of age
discrimination workplace comments, including the comments Edmonds allegedly made on the day
of the injury and the day of the termination, and previous comments by Cristain’s team leader. (See
Docket Entry No. 18, Ex. 2 at 3). Assuming the truth of Cristain’s account for the purpose of this
Hunter stated that it did not replace the position of “Flow Monitor” after Cristain’s
termination because it created that position specifically for him after he was injured. (Docket Entry
No. 18, Ex. 14 at 12).
motion, Edmonds’s statement that Cristain was “old and not worth anything” was not a “stray
remark.” The word “old,” the coincidence in time with the termination, the fact that the speaker had
the authority to and did terminate Cristain, and the fact that the statement allegedly responded to
Cristain’s asking why he was being terminated, all show a causal connection between the comment
and the termination. It is not necessary to determine whether any of the previous alleged comments
are direct evidence of discrimination on their own, or to consider Cristain’s allegations that other
older employees were called names and, in some instances, terminated. (See id.).
Hunter has the burden to show that it would have made the same employment regardless of
Cristain’s age. Hunter has identified and provided evidence of several reasons for the termination:
Cristain’s insubordination towards Edmonds on February 20; his performance problems as a Flow
Monitor; the incidents of his playing on his phone while at work; and the lack of cooperation in the
investigation into the February 5 fall and injury. (Docket Entry No. 18, 10, 19). Edmonds’s
testimony indicates that he was not going to fire Cristain on February 20 until Cristain allegedly
became belligerent. Cristain vigorously disputes that he was either counseled or became belligerent.
(See Docket Entry No. 18, Ex. 1 at 3). As a result, Hunter’s evidence does not show that it would
have fired Cristain based on any of the proferred reasons other than the insubordination, which is
The “same actor” inference does not support a different result. There is a strong inference
that discriminatory motive is not present when the same agent of an employer fires an employee who
had been hired a relatively short time earlier, at close to the same age. See Brown, 82 F.3d at 658
(accepting the “same actor” inference that age discrimination was not the motive behind the
termination of a 58 year old who had been hired at age 54 by the same supervisor). Less than a year
passed between Cristain’s hiring and his firing. But evidence does not show that the person who
made the termination decision, Edmonds, also hired Cristain. Edmonds was the Health, Safety,
Security, and Environmental Manager, not Cristain’s supervisor.
The factual disputes and
inapplicability of the same actor inference preclude granting summary judgment for Hunter on the
basis of the present record.
The Texas Workers’ Compensation Retaliation Claim
Under the Texas Labor Code, “[a] person may not discharge or in any other manner
discriminate against an employee because the employee has . . . filed a worker’s compensation claim
in good faith . . . .” Tex. Lab. Code § 451.001(1). “A prima facie case of retaliation consists of the
following elements: (1) the plaintiff engaged in a protected activity; (2) an adverse employment
action occurred; and (3) there was a causal connection between participation in the protected activity
and the adverse employment decision.” West v. Maintenance Tool and Supply Co., Inc., 89 S.W.3d
96, 105 (Tex. App.—Corpus Christi 2002, no pet.). As with the Age Discrimination in Employment
Act, the plaintiff must show that the discharge would not have occurred when it did “but for” the
filing of the claim, but the plaintiff does not need to show that the filing was the sole reason for the
termination. Lee v. Haynes & Boone, L.L.P., 129 S.W.3d 192, 196 (Tex. App.—Dallas 2004, pet.
denied). Under Texas law,
[c]ircumstantial evidence sufficient to establish a causal link between termination
and filing a compensation claim includes: (1) knowledge of the compensation claim
by those making the decision on termination; (2) expression of a negative attitude
toward 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 Prods. Co. v. Cazarez, 937 S.W.2d 444, 451 (Tex. 1996); See also Kingsaire, Inc. v.
Melendez, 477 S.W.3d 309, 312 (Tex. 2015). “Texas employs a burden shifting analysis for workers
compensation retaliatory discharge claims under section 451.001.” Parker v. Valerus Compression
Servs., LP, 365 S.W.3d 61, 66 (Tex. App.—Houston [1st Dist.] 2011, pet. denied). The McDonnell
Douglas burden-shifting framework applies. Crutcher v. Dallas Indep. Sch. Dist., 410 S.W.3d 487,
493 (Tex. App.—Dallas 2013, no pet.).
The first two elements of Cristain’s prima facie case are undisputed: a workers’
compensation claim was filed on his behalf; and he was subsequently terminated. Hunter disputes
that Cristain has shown the necessary causal link. (Docket Entry No. 17, 17). But the timing— the
termination occurred 15 days after the injury, and only 11 days after the claim filing—the fact that
the employer was obviously aware of the claim—Edmonds filed it for Cristain’s behalf—and the
evidence of Edmonds’s comments on the day of the accident made on the way to the doctor’s office,
all support an inference of retaliatory motive.
Cristain also points to evidence of Hunter’s actions towards other employees who filed
workers’ compensation claims. Between January 2012 and December 2015, 12 other Hunter
employees filed claims for work-related injuries. (Docket Entry No. 18, Ex. 14 at 10). Four of the
13 were terminated within 30 days of injury; eight were terminated within three months; and 10
were terminated within five months. The reasonableness of a causal inference weakens as the time
between injury and termination increases. See, e.g., Burfield v. Brown, Moore & Flint, Inc., 51 F.3d
583, 590 (5th Cir. 1995) (15 to 16 months is too long); Matthews v. City of Houston Fire Dept., 609
F. Supp. 2d 631, 649 (S.D. Tex. 2009) (three years is too long). But taken together, these data
support an inference that Hunter disfavors workers’ compensation claims. Cristain also points to
Hunter’s deviation from its own policy of using a “progressive disciplinary procedure.” (Docket
Entry No. 17, 6). Cristain had not received any disciplinary action before February 2015, when he
was fired within three days of the alleged first disciplinary warning (which Cristain denies
Hunter’s proffered reasons for the termination are Cristain’s insubordination towards
Edmonds, his performance problems, his playing on his phone during work, and his lack of
cooperation in investigating his injury. As noted, the reasons other than the February 20 outburst
are reduced in significance by Edmonds’s statement that on that date, he intended only to reprimand
Cristain until he was insubordinate. Cristain has raised factual disputes as to whether these reasons
are pretextual by disputing that he was insubordinate towards Edmonds, that he was counseled for
performance problems or for playing on his phone, and that he was uncooperative in the
investigation. These disputes, plus the lack of a disciplinary record before February 2015, and
Hunter’s deviation from its own progressive disciplinary procedures, add to the inability to grant
summary judgment on the present record.
Hunter’s motion for summary judgment, (Docket Entry No. 17), is denied. Docket call will
proceed as scheduled on July 6, 2017, at 2:00 p.m. (Docket Entry No. 16).
SIGNED on June 19, 2017, at Houston, Texas.
Lee H. Rosenthal
Chief United States District Judge
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