from the United States District Court for the Southern
District of Texas
HAYNES, HO, and DUNCAN, Circuit Judges.
HAYNES, Circuit Judge
the Texas Labor Code, an employer is prohibited from
retaliating against an employee who files a workers'
compensation claim in good faith. Tex. Lab. Code §
451.001(1). Plaintiff Luis Enrique Cristain, who sustained a
work-related injury and was fired shortly thereafter, filed
suit claiming he was terminated for filing such a claim. He
also claimed age discrimination. The district court denied
defendant Hunter Buildings & Manufacturing, L.P.'s
summary judgment motion, and the case proceeded to trial. The
district court denied Hunter's motion for a judgment as a
matter of law in the middle of Cristain's case in chief.
For reasons unexplained and difficult to discern, the
district court then granted Hunter's renewed motion for
judgment as a matter of law at the close of the evidence on
the retaliation claim, but sent the age discrimination issue
to the jury. The jury returned a verdict for the defense on
that claim, a judgment for the defendant was entered, and a
timely appeal followed. We REVERSE and REMAND the adverse
ruling on the retaliation claim and otherwise AFFIRM.
August 2014, Cristain was hired by Hunter as a
"Helper." His duties included painting,
maintenance, and cleaning. On Thursday, February 5, 2015,
Cristain was assigned to clean a ceiling while standing on a
scaffold. The scaffold collapsed, and Cristain sustained an
injury. Kevin Edmonds, Hunter's Environmental Health and
Safety Manager at the time, eventually took Cristain to a
doctor after allegedly delaying for a period of time. The
doctor diagnosed Cristain with a lumbar strain and released
him to work "as tolerated." Thereafter, Edmonds
began to dominate Cristain's life: he argued with
Cristain's request to take the next day off for recovery
purposes (subsequently relenting), he showed up unannounced
at Cristain's house that Sunday to "check on
him," and he insisted on driving Cristain to both work
and the doctor. Edmonds was not Cristain's supervisor,
had not previously been involved in Cristain's
employment, and had only seen him once or twice before the
days after the accident and a few days after filing the
workers' compensation paperwork, Edmonds offered Cristain
a "Flow Monitor" job, a position Edmonds and the
Outfitting Department created in which Edmonds would become
Cristain's new supervisor. The evidence, taken in the
light most favorable to Cristain, reflects that Cristain was
set up to fail in this invented position for which he
received no training and for which he was not well-suited.
Hunter was unable to produce any forms or reports regarding
Cristain's time as a Flow Monitor, and Edmonds testified
that Hunter had lost them.
had no disciplinary history as a helper. Immediately after
Cristain began his new position, Edmonds claimed that
Cristain was taking numerous unauthorized breaks, an
allegation Cristain denies. Three days later, Edmonds gave
Cristain a verbal warning for allegedly failing to pick up
paperwork for his Flow Monitor job, and documented this and
the alleged incidents from the prior two days. The document
had checked boxes next to "Unsatisfactory Work
Quality" and "Working on Personal Matters."
also investigated the scaffold accident and concluded it was
Cristain's fault. Two weeks after the accident, Edmonds
addressed the scaffold incident with Cristain in a meeting.
Cristain claims he was immediately fired, while Edmonds
contends that Cristain became belligerent and profane,
prompting Edmonds to fire him. Regardless, it is undisputed
Cristain was fired fifteen days after the accident and eleven
days after Edmonds filed the workers' compensation
documentation. Cristain denies yelling or cursing at Edmonds.
The termination document makes no mention of any abusive
language, or even the incidents from the immediately
preceding days. Instead, the only boxes checked off are
"Violation of Safety Rules" and "Violation of
Company Policy/Practices." Under "Description of
the Incident," Edmonds wrote that Cristain "took it
upon himself to utilize a scaffold of which he was not
trained or authorized to use" and "[f]ailed to
perform a job hazard analysis for task assigned." Both
comments refer to the February 5 accident.
review a district court's grant of judgment as a matter
of law de novo. Laxton v. Gap Inc., 333 F.3d 572,
577 (5th Cir. 2003). Judgment as a matter of law is
appropriate where "a reasonable jury would not have a
legally sufficient evidentiary basis to find for the party on
that issue." Kelso v. Butler, 899 F.3d 420, 424
(5th Cir. 2018). The court "must draw all reasonable
inferences in favor of the nonmoving party, and . . . may not
make credibility determinations or weigh the evidence."
Laxton, 333 F.3d at 577 (quoting Russell v.
McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir.
retaliation claim is governed by Texas law. Texas Supreme
Court precedent dictates that factfinders may rely on
circumstantial evidence of retaliation.
Circumstantial 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) (emphasis added). An intermediate Texas
court of appeals has also suggested that "proximity may
establish a causal connection between [the] complaint and the
adverse employment action when . . . they are separated by
weeks, as opposed to months and years." Green v.
Lowe's Home Ctrs. Inc., 199 S.W.3d 514, 522- 23
(Tex. App.-Houston [1st Dist.] 2006, pet. denied)
(alterations in original) (quoting Fields v. Teamsters
Local Union No. 988, 23 S.W.3d 517, 529 (Tex.
App-Houston [1st Dist.] 2000, pet. denied)).
unclear whether the Continental Coffee list
constitutes "elements" or merely
"factors" in the determination of whether
retaliation occurred. The Texas Supreme Court's phrasing
suggests that these are factors, not elements. That said, we
conclude sufficient evidence of retaliation was presented to
support submission to the jury however one views the
Continental Coffee list.
there is stark temporal proximity-Cristain was fired
approximately two weeks after his injury. As for the
Continental Coffee factors, it is undisputed that
the decisionmaker, Edmonds, was aware of the workers'
compensation claim. It is also undisputed that Edmonds did
not follow Hunter's progressive discipline policy, which
began at step one, a verbal warning, and progressed to step
five, termination. It is hotly disputed, however, whether it
was appropriate to fire Cristain without following that
five-step policy (i.e., the parties dispute whether Cristain
cursed and yelled at Edmonds, which might justify an
immediate firing). As far as ...