Court of Appeals of Texas, Austin (3rd Dist.).

Eric Sanchez-Rolon, Appellant

v.

Pactiv, LLC, Appellee

NO. 03-23-00031-CV

|

Filed: December 31, 2024

FROM THE 169TH DISTRICT COURT OF BELL COUNTY

NO. 325013, THE HONORABLE CARI L. STARRITT-BURNETT, JUDGE PRESIDING

Before Chief Justice Byrne, Justices Kelly and Theofanis

MEMORANDUM OPINION

Chari L. Kelly, Justice

*1 Eric Sanchez-Rolon appeals a summary judgment in which the trial court ruled that he take nothing by his suit under the workers’-compensation Anti-Retaliation Law. See Tex. Lab. Code §§ 451.001–.003; Continental Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 445–47, 450 (Tex. 1996) (background concerning Anti-Retaliation Law). Because we conclude both that appellee Pactiv, LLC, his former employer, carried its summary-judgment burden to show a nonretaliatory reason for discharging him from employment and that he did not present evidence raising a genuine issue of material fact on whether the nonretaliatory reason was a mere pretext for a retaliatory motive, we conclude that there is no genuine issue of material fact on the causation element of Sanchez-Rolon’s claim and thus affirm.

BACKGROUND

Sanchez-Rolon was employed as a mechanic at Pactiv’s manufacturing facility in Temple, Texas. His job duties included fixing machines. The Temple facility is a dangerous work environment, so to promote employee safety, Pactiv imposes many rules, policies, and procedures on facility employees. One set of rules is the Critical Safety Rules (CSRs).

The written CSRs Policy says that the CSRs are “rules that, if violated, risk causing serious or life-threatening injury to employees or other individuals or serious damage to property.” The Policy gives the consequence for a violation: “Following an appropriate investigation, a confirmed violation of a [CSR] will result in immediate termination of employment.”

The fourth numbered CSR on the Policy says that employees are forbidden from “[a]llowing any part of a person’s body or clothing to come into contact with, or risk coming into contact with, an ‘in-running’ nip point … , for example, by an employee using emery cloth or wearing unauthorized attire near an ‘in-running’ nip point.”¹ Sanchez-Rolon in February 2019 signed a Spanish translation of the CSRs Policy, acknowledging that he had read and understood the CSRs and affirming that he would comply with them.

He also, in January 2015, had signed an English-language document titled “PACTIV-TEMPLE Critical Safety Rules,” acknowledging that he had read and understood the Temple-facility CSRs and would abide by them. This document’s fourth numbered CSR similarly forbids employees from making “[p]hysical contact with a nip point of any operating equipment such as rollers or conveyors.” Above the numbered CSRs within the document, the document says, “Subject to an appropriate investigation, any violation of the following rules will result in immediate termination of employment,” and below the numbered CSRs, “Although progressive corrective action normally results from a rule violation, some acts, (to include Temple’s Critical Safety Situations), are so serious that employment will be terminated with the first offense.”

*2 On December 22, 2019, Sanchez-Rolon was at the Temple facility and went to fix a large machine, which was equipped with a belt attached to a sprocket all behind a closed panel door. He performed lockout/tagout (LOTO) on the machine, a process by which a machine is deenergized to make it safer for repair work. He made some repairs while the machine was deenergized, but it still did not work properly. So he started troubleshooting the machine with LOTO not applied to it—with the machine reenergized. He opened the panel door behind which the belt was housed and saw that the belt was not moving.

What happened next is described in a written slide-deck presentation created for the Temple facility’s CSR Review committee. The presentation says—and Sanchez-Rolon testified by deposition that these descriptions are accurate—that Sanchez-Rolon “placed his left hand onto the belt to check for tension,” “[a]t this time the line indexed and [his] left thumb was pulled between the belt and the [sprocket] for one complete cycle,” and he “reported the injury to the team leader immediately”—he had lost part of his left thumb. Pactiv’s HR manager filed the workers’-compensation claim for Sanchez-Rolon’s injury.

More specifically about where he touched the belt, the written presentation includes the following captioned picture of another person’s hand touching the same belt near the sprocket:

[The picture appears on the next page.]

Tabular or graphical material not displayable at this time.

When asked about this picture in his deposition, Sanchez-Rolon testified that he touched the belt even closer to the sprocket than where the depicted hand is doing so:

Q. Okay. Moving on to the next page, is this—do these pictures show—looking at the picture on the right-hand side, did you touch the belt where it touches the gear on the top?

A. I’m sorry. Can you repeat the question?

Q. Can you describe on this—on the picture on the right-hand side with the red circle where you touched the belt?

A. I touched the belt right in the same place, but a little bit higher up.

He then testified that “the space between the belt and the sprocket where the belt and sprocket touch is a nip point.”

Pactiv personnel gathered information for an investigation into the incident, beginning the day of the injury. These efforts included the HR manager’s interviewing Sanchez-Rolon and recording his answers verbatim, or nearly so, on a Statement Form. Sanchez-Rolon signed the Statement, affirming that it is true and correct. Pactiv personnel obtained statements from others and took pictures of the machine’s panel, belt, and sprocket. Much of the information obtained by the investigation was put into the written slide-deck presentation.

The committee was made up of Pactiv’s director of environmental health and safety, the Temple facility’s HR director, and the facility manager’s direct supervisor. The committee—after reviewing the information gathered by the investigation, memorialized in the written presentation, and an incident involving another employee—recommended that Sanchez-Rolon be discharged for violating the nip-point CSR. On the committee’s recommendation, Pactiv discharged him, on January 15, 2020.

Sanchez-Rolon sued Pactiv, alleging that it had violated the Anti-Retaliation Law by discharging him “for instituting or causing to be instituted a workers’ compensation claim in good faith” and seeking damages. Pactiv answered and filed a hybrid motion for summary judgment with attached evidence, arguing that Sanchez-Rolon should take nothing by his suit because of the evidence, or lack thereof, relating to the causation element of his claim under the Anti-Retaliation Law. Sanchez-Rolon moved for a partial summary judgment on liability for his claim under the Law and on several of Pactiv’s affirmative defenses, attaching evidence to his motion. After responsive filings with attached evidence from each side on the other’s summary-judgment motion, the trial court denied Sanchez-Rolon’s motion, granted Pactiv’s, and ruled that Sanchez-Rolon take nothing by his suit. He now appeals.

STANDARD OF REVIEW

*3 We review summary judgments de novo. Avila v. United Parcel Serv., Inc., No. 03-18-00233-CV, 2018 WL 4100854, at *3 (Tex. App.—Austin Aug. 29, 2018, pet. denied) (mem. op.). We review the evidence presented in the light most favorable to the party against whom judgment was rendered, crediting evidence favorable to that party if reasonable jurors could do so and disregarding contrary evidence unless reasonable jurors could not do so. Id. We take as true all evidence favorable to that party, and we indulge every reasonable inference and resolve all doubts in that party’s favor. Phillips v. SACHEM, Inc., No. 03-13-00346-CV, 2014 WL 7464035, at *1 (Tex. App.—Austin Dec. 31, 2014, no pet.) (mem. op.).

A party seeking summary judgment may combine in one motion a request for summary judgment under the no-evidence standard and a request under the traditional, matter-of-law standard. See id. at *2; cf. Tex. R. Civ. P. 166a(c), (i). If, as here, the trial court in granting summary judgment does not specify the grounds it relied on, we must uphold the judgment if any of the grounds asserted in the motion and preserved for review are meritorious. Phillips, 2014 WL 7464035, at *1. And when, also as here, both sides move for a summary judgment on the same issues and the court grants one motion and denies the other, we “consider[ ] the summary judgment evidence presented by both sides, determine[ ] all questions presented, and if [we] determine[ ] that the trial court erred, render[ ] the judgment the trial court should have rendered.” Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).

A no-evidence motion for summary judgment is a motion asserting that there is no evidence of one or more essential elements of a claim or defense on which the nonmovant would have the burden of proof at trial. Phillips, 2014 WL 7464035, at *2. A no-evidence summary judgment is essentially a pretrial directed verdict, and we apply the same legal-sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict. Id. A no-evidence summary judgment is properly granted when there is a complete absence of evidence of a vital fact, the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact, the evidence offered to prove a vital fact is no more than a mere scintilla, or the evidence conclusively establishes the opposite of the vital fact. Id. Thus, a no-evidence summary judgment is improperly granted if the nonmovant brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact. Id.

More than a scintilla of evidence exists when the evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Id. “Less than a scintilla of evidence exists when the evidence is ‘so weak as to do no more than create a mere surmise or suspicion’ of a fact.” King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)). “Where circumstantial evidence is relied upon, and the circumstances are equally consistent with either of two facts … , no more than a scintilla of evidence supports a finding.” Continental Coffee Prods., 937 S.W.2d at 450.²

*4 A fact is “material” only if it affects the ultimate outcome of the suit under the governing law. Roper v. CitiMortgage, Inc., No. 03-11-00887-CV, 2013 WL 6465637, at *4 n.4 (Tex. App.—Austin Nov. 27, 2013, pet. denied) (mem. op.). “The materiality determination rests on the substantive law, and only those facts identified by the substantive law to be critical are considered material.” Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex. App.—San Antonio 1998, pet. denied).

As for traditional summary judgment, a defendant is entitled to a summary judgment on a plaintiff’s claim if the defendant establishes that (1) there is no genuine issue as to any material fact and (2) the defendant is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(b), (c); Phillips, 2014 WL 7464035, at *2. As relevant here, the defendant must conclusively negate at least one element of the claim. See Phillips, 2014 WL 7464035, at *2.

APPLICABLE LAW OF CLAIMS UNDER THE ANTI-RETALIATION LAW

Under the Anti-Retaliation Law, a discharged employee may assert a claim against the former employer if the employer discharged the employee “because the employee has … filed a workers’ compensation claim in good faith [or] instituted or caused to be instituted in good faith a proceeding under” the Texas Workers’ Compensation Act. See Tex. Lab. Code § 451.001(1), (3); Kingsaire, Inc. v. Melendez, 477 S.W.3d 309, 312 (Tex. 2015). To show the necessary causation to support the claim, the employee “must show that the employer’s prohibited action ‘would not have occurred when it did’ absent the employee’s protected conduct.” Kingsaire, 477 S.W.3d at 312 (quoting Continental Coffee Prods., 937 S.W.2d at 450); accord Apache Corp. v. Davis, 627 S.W.3d 324, 335 (Tex. 2021); Texas Dep’t of Hum. Servs. v. Hinds, 904 S.W.2d 629, 637 (Tex. 1995). In making this showing, the employee need not show that the protected conduct was the sole cause of the discharge. See Continental Coffee Prods., 937 S.W.2d at 451 n.3; Phillips, 2014 WL 7464035, at *2. But neither does the claim succeed “simply because the protected conduct makes the employer more certain of the correctness of its decision” to discharge the employee for a lawful reason. Apache, 627 S.W.3d at 335 (quoting Hinds, 904 S.W.2d at 636). The “would not have occurred when it did” standard is but-for causation.³ Id. at 335–36.

To show causation, the employee may rely on circumstantial evidence, and if the employee does so, then proof of the causation element is subject to a burden-shifting framework. See Kingsaire, 477 S.W.3d at 312; Avila, 2018 WL 4100854, at *4; Phillips, 2014 WL 7464035, at *2. Under the framework, employees bear an initial burden of establishing a prima facie causal link between their discharge from employment and their protected conduct, such as their good-faith filing of a workers’-compensation claim. Key v. Lockhart ISD, No. 03-03-00696-CV, 2004 WL 1686153, at *3 (Tex. App.—Austin July 29, 2004, no pet.) (mem. op.). If this burden is met, then the employer must rebut the allegedly retaliatory discharge by showing that there was a legitimate reason for the discharge. Id. If the employer does so, then the burden shifts back to the employee to, at summary judgment, either present evidence raising a genuine issue of material fact on whether the reason for discharge was merely a pretext for a retaliatory motive or challenge the employer’s summary-judgment evidence as failing to prove as a matter of law that the reason given was a legitimate, nondiscriminatory reason. Id. at *3–4.

DISCUSSION

*5 The burden-shifting framework applies here because Sanchez-Rolon relied on circumstantial evidence of retaliation-claim causation, failing to offer any direct evidence.⁴ For purposes of our analysis, we assume that Sanchez-Rolon raised a genuine issue of material fact about whether there is a prima facie causal link between his discharge and his having instituted or having caused to be instituted in good faith a workers’-compensation claim. See id. at *3 (discussing burden-shifting framework).

Still, if Pactiv carried its summary-judgment burden to show a nonretaliatory reason for the discharge and if there was no evidence raising a genuine issue of material fact on whether the nonretaliatory reason was a mere pretext for a retaliatory motive, then Pactiv was entitled to summary judgment. See id. at *4–5 (affirming summary judgment for employer on claim under Anti-Retaliation Law because even though the “evidence raised an issue of material fact as to [employee]’s prima facie showing that he was discharged because he filed a workers’ compensation claim,” employee “failed to present a scintilla of evidence that [employer]’s legitimate reason for [employee]’s discharge was a pretext for a retaliatory motive”).

Sanchez-Rolon on appeal does not appear to contest that Pactiv carried its summary-judgment burden to show a nonretaliatory reason for his discharge. See id. at *3–4 (employee may seek to challenge employer’s entitlement to summary judgment on claim under Anti-Retaliation Law by challenging employer’s summary-judgment evidence as failing to prove as a matter of law that reason given was legitimate, nondiscriminatory reason). Pactiv offered evidence of his violation of the nip-point CSR and of his discharge based on that CSR violation at the recommendation of the CSR Review committee.

Instead, Sanchez-Rolon argues that the evidence raised a genuine issue of material fact about whether the reason for discharge was merely a pretext for a retaliatory motive. See id. (describing this alternative method of challenging summary judgment for employer on claim under Anti-Retaliation Law). He divides his arguments among three broad categories: (1) an assertion about the purportedly undisputed basis for his discharge, (2) arguments relying on evidence about the closeness in time between his protected conduct and his discharge and on evidence under the recognized circumstantial-evidence factors relating to the causation element of retaliation claims, and (3) a series of other purportedly material fact issues to preclude summary judgment.

But Sanchez-Rolon’s arguments do not persuade us. We hold that the trial court properly granted Pactiv’s hybrid motion for summary judgment regarding the causation element of Sanchez-Rolon’s claim because there was no genuine issue of material fact when applying the burden-shifting framework at its final, pretext step.⁵

Assertion about relationship between Sanchez-Rolon’s injury and his discharge

*6 Sanchez-Rolon’s first argument is an assertion about the purported state of the record about the relationship between his injury and his discharge:

[I]t is undisputed that, were it not for Sanchez-Rolon suffering and reporting a serious workplace injury, Pactiv would not have fired him. Pactiv had no reason to fire Sanchez-Rolon before the injury incident, and had the incident not occurred, Sanchez-Rolon would still be working there today. It necessarily follows that Pactiv fired Sanchez-Rolon because of his injury, satisfying the single liability question in a Chapter 451 claim.

Here, it is undisputed that Sanchez-Rolon reported a serious workplace injury and Pactiv fired him at least in part because of it.

At a minimum, the trial court should have denied Pactiv’s no-evidence summary judgment motion because of these undisputed facts.

….

Given the facts of this case, the injury is a necessary precursor to Pactiv’s decision to fire Sanchez-Rolon. Put another way, there is no way here to decouple the injury from the firing reason.

This argument does not support reversal for two reasons. First, much of it relies on a purported set of facts not actionable under the Anti-Retaliation Law. The Law makes a discharge actionable when it comes about “because the employee has: (1) filed a workers’ compensation claim in good faith; (2) hired a lawyer to represent the employee in a claim; (3) instituted or caused to be instituted in good faith a proceeding under [the Texas Workers’ Compensation Act]; or (4) testified or is about to testify in a proceeding” under the Texas Workers’ Compensation Act. Tex. Lab. Code § 451.001. But Sanchez-Rolon’s argument here depends at least somewhat not on any of the statute’s items of protected conduct but on his being injured. The Anti-Retaliation Law—the only basis for Sanchez-Rolon’s suit—does not make actionable a discharge just because the employee was injured.⁶

Second, for those portions of Sanchez-Rolon’s argument that are properly based on conduct protected by the Anti-Retaliation Law, the argument still does not support reversal because it is wrong about the state of the record. It is not undisputed that Pactiv discharged Sanchez-Rolon because of protected conduct—Pactiv very much disputed that notion in its motion for summary judgment and disputes it on appeal. For instance, Pactiv argues that Sanchez-Rolon would have been discharged for violating the nip-point CSR even if he had not been injured. Thus, this first argument from Sanchez-Rolon is unavailing.

Temporal proximity and circumstantial-evidence factors

Sanchez-Rolon’s next arguments rely on evidence about the closeness in time between his protected conduct and discharge and on the recognized circumstantial-evidence factors relating to retaliation-claim causation. We first set forth the applicable law.

*7 Since it issued Continental Coffee Products, the Supreme Court of Texas has used a set of factors for analyzing circumstantial evidence of retaliation causation. Apache, 627 S.W.3d at 336. The factors, however, do not replace the but-for standard for causation—that the employer’s prohibited action would not have occurred when it did absent the employee’s protected conduct. See id.; Kingsaire, 477 S.W.3d at 312. “The factors may be more helpful in some cases and less in others,” and “[s]ome of the factors may actually be a distraction.” Apache, 627 S.W.3d at 336. We have used the factors in summary-judgment cases under the Anti-Retaliation Law. See, e.g., Avila, 2018 WL 4100854, at *9, *11–13; Key, 2004 WL 1686153, at *3–4.

Both Sanchez-Rolon and Pactiv raise questions about where within the burden-shifting framework courts should apply the factors. Neither the Supreme Court of Texas nor our Court has resolved that question. The wording of some Texas opinions suggests that the factors apply only at the initial, causal-link step in the framework. See Tawil v. Cook Child.’s Healthcare Sys., 582 S.W.3d 669, 683 (Tex. App.—Fort Worth 2019, no pet.) (discussing such cases); see, e.g., Serur v. Churchill Forge Props., No. 03-03-00501-CV, 2004 WL 1404141, at *4 (Tex. App.—Austin June 24, 2004, no pet.) (mem. op.). But other opinions apply the factors at the later, pretext step. See, e.g., Avila 2018 WL 4100854, at *9, *11–13. We will apply the factors here in our review of the summary-judgment record at the pretext step as Sanchez-Rolon asks of us because even if we apply them there, he still does not prevail.

As for temporal proximity, we have not been consistent when listing the factors about whether temporal proximity is necessarily one of them. Compare Avila, 2018 WL 4100854, at *9 (is a factor), with Phillips, 2014 WL 7464035, at *3 (absent from factors); Key, 2004 WL 1686153, at *3 (same); Serur, 2004 WL 1404141, at *4 (same). Sanchez-Rolon’s arguments on appeal raise temporal proximity as a concept distinct from the circumstantial-evidence factors, so we will treat temporal proximity the same way. He still does not prevail.

Temporal proximity

Although temporal proximity alone can sometimes establish a prima facie causal link, at the pretext step of the framework, “temporal proximity, standing alone, is not sufficient proof of but for causation.” See Avila, 2018 WL 4100854, at *10, *11. This can be especially true “in light of evidence of” the employer’s particular “legitimate, nondiscriminatory reason for” the discharge. See id. at *11. Pactiv’s legitimate reason for the discharge was, according to the summary-judgment record, that Sanchez-Rolon violated the nip-point CSR by grabbing the belt where he did. That his discharge was close in time to his workers’-compensation claim is no evidence of mere pretext because the discharge and the investigation that led to it were at least equally as close in time to his violation of the nip-point CSR. See Apache, 627 S.W.3d at 336 (“[W]hile a longer delay might support an inference that the email could not have been a but-for cause of her termination, the shorter delay is no evidence that Apache would not have terminated Davis if she had not sent the email, given that evidence of Davis’ prior insubordination is undisputed. Though Davis was terminated shortly after her email, it had still been only a short while since her insubordination.”); Continental Coffee Prods., 937 S.W.2d at 450 (“Where circumstantial evidence is relied upon, and the circumstances are equally consistent with either of two facts … , no more than a scintilla of evidence supports a finding.”). Thus, there was no genuine issue of material fact on causation based solely on the evidence of temporal proximity between his discharge and the instituting of his workers’-compensation proceeding. See Avila, 2018 WL 4100854, at *11.

The circumstantial-evidence factors

*8 The recognized circumstantial-evidence factors are (1) knowledge of the claim by those making the decision on discharge, (2) expression of a negative attitude towards 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. See Kingsaire, 477 S.W.3d at 312; Avila, 2018 WL 4100854, at *9; Serur, 2004 WL 1404141, at *4. For evidence under any of these factors to create a genuine issue of material fact at the pretext step of the framework, the evidence must show an “inconsisten[cy]” in the employer’s stated legitimate reason for the discharge—it must “rebut” the stated reason. See Key, 2004 WL 1686153, at *4.

Under the first, knowledge-of-the-claim factor, it is undisputed that the Pactiv personnel who made the decision to discharge Sanchez-Rolon knew of his workers’-compensation claim. See Avila, 2018 WL 4100854, at *11 (analyzing whether there was any evidence that “any of [employee’s] supervisors had any role in the decision to terminate” employee). Still, we see nothing inconsistent in Pactiv’s stated reason for discharging Sanchez-Rolon in light of those employees’ awareness of his workers’-compensation claim. See Key, 2004 WL 1686153, at *4; see also Apache, 627 S.W.3d at 336 (“The factors may be more helpful in some cases and less in others. Some of the factors may actually be a distraction.”). Pactiv’s HR manager filed Sanchez-Rolon’s claim for him, and “it would seem ‘highly irregular’ for an employer to discriminate against an employee on the basis of a workers'[ ] compensation claim that the employer itself filed.” See Adams v. Oncor Elec. Delivery Co., 385 S.W.3d 678, 684 (Tex. App.—Dallas 2012, no pet.) (quoting Burch v. City of Nacogdoches, 174 F.3d 615, 623 (5th Cir. 1999)) (affirming summary judgment for employer on claim under Anti-Retaliation Law). We conclude that the evidence under this factor does not raise a genuine issue of material fact at the pretext step. See Avila, 2018 WL 4100854, at *11 (“[A]n employer’s knowledge of a workers’ compensation claim, standing alone, does not establish a causal connection” at pretext step.).

Under the second, negative-attitude factor, Sanchez-Rolon points to (1) deposition testimony showing that after his injury Pactiv installed a safety device on the panel door that hides the belt and (2) deposition testimony showing that part of Pactiv’s investigation into what he did—specifically, the interview with the HR manager—took place soon after Sanchez-Rolon returned to work from the hospital. He characterizes this evidence as showing a strategy by Pactiv to pin the blame for his injury on him and take scrutiny away from the machine as it existed before the safety device was installed. But this evidence is equally consistent with the view that he was discharged for violating the nip-point CSR, the confirmed violation of which, Pactiv’s policy is clear, should result in immediate discharge. See Continental Coffee Prods., 937 S.W.2d at 450 (“Where circumstantial evidence is relied upon, and the circumstances are equally consistent with either of two facts … , no more than a scintilla of evidence supports a finding.”); Key, 2004 WL 1686153, at *4 (evidence at pretext step must show inconsistency in employer’s stated legitimate reason for discharge, rebutting that reason). The evidence that he is pointing to does no more than create a mere surmise or suspicion of the corporate strategy that he says existed. See King Ranch, 118 S.W.3d at 751; see also Continental Coffee Prods., 937 S.W.2d at 451–52 (stating that evidence that employer’s employment manager “questioned whether [employee]’s ankle injury might actually have been caused … by wearing improper shoes” was no evidence of causation under negative-attitude factor). It thus raises no genuine issue of material fact at the pretext step.

*9 Under the third factor, failure to adhere to established company policies, Sanchez-Rolon raises three sets of circumstances from the evidence, each of which, he argues, shows that Pactiv did not follow its own policies when investigating and discharging him.

The first comes from deposition testimony showing that he was trained by other mechanics to troubleshoot the machine at issue sometimes while the machine is not deenergized by LOTO. He testified in his deposition that he was trained this way by other mechanics, and Pactiv’s corporate representative testified in his deposition that mechanics may have repaired machines while they were energized. But in general, these circumstances do not show any inconsistency in Pactiv’s proffered reason for discharging Sanchez-Rolon—he was discharged for violating the nip-point CSR regardless of whether he should have conducted any troubleshooting on the machine while it was energized. See Avila, 2018 WL 4100854, at *12 (evidence of circumstance “irrelevant to [employer]’s decision to terminate” employee does not raise fact issue under this factor); Serur, 2004 WL 1404141, at *5 (“[T]he summary-judgment evidence suggests that the extended-leave policy may not have been uniformly applied. However, [employer] also has a three-day absence policy. Because [employee] did not show any evidence regarding the three-day rule, violation of this policy is sufficient to justify the termination.”).

More particularly, Sanchez-Rolon points to the following from his deposition testimony about training from other mechanics to touch energized machines:

Q. Okay. But just to reiterate my question. My question is, is it your testimony today that it’s acceptable at Pactiv to put your hand inside of equipment that’s under power if your hand could come in contact with a hazard when you do so?

….

A. Well, that part about the troubleshooting, well, what I was told was, and this was Bobby and Randy Baker that told me this, if you’re going to do troubleshooting and you don’t have the tools at hand, the machine can be on.

Q. Okay. And did they tell you that you could touch the machine when the machine is on?

A. Yes, it can be touched. Yes.

But he fails to point to the very next deposition question and answer, which is consistent with Pactiv policy that the nip-point CSR should not be violated:

Q. And they—did they tell you that you could touch a part of a machine where there’s a nip point?

A. No.

He also points to his deposition testimony that other mechanics have touched nip points while the machine was energized, naming several who had done so. Yet this testimony does not show any inconsistency in Pactiv’s adherence to its policies: that other mechanics have touched nip points, without more, does not mean that if Pactiv discovered those CSR violations like it discovered Sanchez-Rolon’s, Pactiv failed to then investigate the incident and if the violation were confirmed discharge the violator.

Sanchez-Rolon next relies on one of the numbered CSRs in the Temple-facility CSRs policy. He says that this CSR allows for exceptions for troubleshooting machines even when they are not deenergized by LOTO:

5. By-passing or disabling any safety guard, switch, alarm, safety and/or electrical interlock, emergency stop or other device intended to safeguard machinery, equipment, lift trucks, power tools, etc. from causing injury to personnel. This rule does not apply to those employees authorized to perform set-ups or trouble-shooting provided they follow established alternative safety procedures.

*10 (Emphasis added.) But this exception applies to “[t]his rule”—the fifth numbered Temple CSR. The nip-point CSR, which Sanchez-Rolon violated, was a different rule—the fourth—so this part of the Temple CSRs policy does not show any inconsistency in Pactiv’s actions. See Serur, 2004 WL 1404141, at *5 (“[T]he summary-judgment evidence suggests that the extended-leave policy may not have been uniformly applied. However, [employer] also has a three-day absence policy. Because [employee] did not show any evidence regarding the three-day rule, violation of this policy is sufficient to justify the termination.”).

Finally under this factor, Sanchez-Rolon points out that in the slide-deck presentation to the CSR Review committee, three slides showed signed training records for a different employee named “Erick Sanchez,” not the records for Sanchez-Rolon. This is no evidence of any relevant inconsistency either. Sanchez-Rolon does not argue that he was not trained on the nip-point CSR—the evidence conclusively shows that he was, and he admitted in his deposition that the other mechanics did not tell him that troubleshooting could involve touching nip points. Even if this documentation error in the written presentation shows errors in Pactiv’s process, it still does not show that Pactiv’s explanation for the discharge was a mere pretext. See Apache, 627 S.W.3d at 339 (“In applying a lesser causation standard than but-for, we have stated that it is ‘not sufficient [for the employee] to present evidence that the … investigation was imperfect, incomplete, or arrived at a possibly incorrect conclusion.” (quoting Wal–Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 740 (Tex. 2003) (per curiam))); Jones v. Texas Dep’t of Pub. Safety, No. 03-20-00615-CV, 2022 WL 318585, at *20–21 (Tex. App.—Austin Feb. 3, 2022, no pet.) (mem. op.) (“[A]t the pretext stage the issue is not whether the employer was wrong in its belief or process, but whether the asserted reason for its action was honest. Thus, at the pretext stage [employee] had the burden to present evidence that the [employer]’s asserted reason for the work-from-home order … was not the real reason for the order, i.e., that it was false or incredible.” (internal citations omitted)).

We conclude under the third circumstantial-evidence factor that there was no genuine issue of material fact at the pretext step of the framework.

Under the fourth, discriminatory-treatment factor, “[e]mployees are similarly situated if their circumstances are comparable in all material respects, including similar standards, supervisors, and conduct.” Avila, 2018 WL 4100854, at *13; accord Apache, 627 S.W.3d at 339 (“[E]vidence of disparate treatment of other employees’ conduct requires that the employees’ circumstances be ‘comparable in all material respects.’ ” (quoting Ysleta ISD v. Monarrez, 177 S.W.3d 915, 917 (Tex. 2005) (per curiam))). “This requires the plaintiff to show not only that the employees reported to the same supervisor, engaged in the same conduct, and had the same qualifications, but also show that there were no ‘differentiating or mitigating circumstances as would distinguish … the employer’s treatment of them.’ ” Avila, 2018 WL 4100854, at *13 (quoting Ineichen v. Ameritech, 410 F.3d 956, 960–61 (7th Cir. 2005)). Sanchez-Rolon points to an email chain among the CSR Review committee and other Pactiv personnel. In an email in the chain, Pactiv’s director of environmental health and safety described a different incident in which an employee at Beech Island had come into contact with a nip point but was not discharged:

*11 The [employee] reports that as he was using the flashlight with his right hand, he leaned up with his left hand, bracing his left hand on the cabinet. The [employee] states that he did not realize how close his gloved hand was to the drive and the belt grabbed his gloved hand and rotated one cycle over the belt pulley.

After reviewing this [Beech Island] event and comparing it against the Temple event [involving Sanchez-Rolon], I believe that the Temple event is different.

• The [Beech Island employee] made inadvertent contact with the belt[.]

• [Sanchez-Rolon] purposely grabbed the belt to check for if it was loose or not.

Based on this difference and the facts presented by Temple in their latest CSR [written presentation] …, I support the plant’s recommendation for termination .

(Formatting altered; emphasis in original.) This email shows why the Beech Island employee’s circumstances were not comparable in all material respects with Sanchez-Rolon’s. See id. The mitigating circumstance, see id., of inadvertent contact with the nip point differentiates the two cases. See Apache, 627 S.W.3d at 339 (“[T]o prove disparate discipline, the employee must usually show ‘that the misconduct for which [she] was discharged was nearly identical to that engaged in by [other] employee[s] whom [the company] retained.’ ” (quoting court of appeals’ quotation of Ysleta ISD, 177 S.W.3d at 917)). And even if Pactiv got it wrong about whether Sanchez-Rolon had intentionally touched the nip point, such an error in its investigation is not evidence of pretext. See Apache, 627 S.W.3d at 339; Jones, 2022 WL 318585, at *20–21. There was thus no genuine issue of material fact at the pretext step of the framework under this fourth circumstantial-evidence factor.

Under the final circumstantial-evidence factor, evidence that the stated reason for the discharge was false, Sanchez-Rolon reraises the purported corporate strategy identified above. He argues that Pactiv’s installing a safety device on the machine after his injury “raises a question of fact as to the true reason for Pactiv’s termination: was Sanchez-Rolon terminated because he violated a CSR or did Pactiv fire him to shift the blame for its own safety failure?” We reject that argument for the same reasons we did above.

In all, Sanchez-Rolon failed to raise a genuine issue of material fact at the pretext step of the analytical framework for the causation element of his retaliation claim when viewed through the lens of the recognized circumstantial-evidence factors.

Series of other purportedly material fact issues

Sanchez-Rolon’s final arguments raise a series of other purported material fact disputes that he says should have precluded summary judgment. He first argues that there is a fact issue about whether he sufficiently understood English. Even if so, such a fact issue is not material here. See Roper, 2013 WL 6465637, at *4 n.4 (fact is “material” only if it affects ultimate outcome of suit under governing law); Moore, 981 S.W.2d at 269 (“The materiality determination rests on the substantive law, and only those facts identified by the substantive law to be critical are considered material.”). The summary-judgment record conclusively shows that he violated the nip-point CSR and was discharged for that violation regardless of whether, for example, he fully understood the HR manager’s questions during their interview about the incident. Sanchez-Rolon had signed a Spanish-language translation of the CSRs Policy, acknowledging that he had read and understood the CSRs and affirming that he would comply with them. And his deposition—in which he admitted the facts establishing his violation of the nip-point CSR—was conducted with the aid of a Spanish interpreter. Thus, Sanchez-Rolon’s full understanding of English is not a material issue precluding summary judgment here.

*12 Next, he argues that there are fact issues arising out of his having been given morphine not long before the HR manager interviewed him and whether he told her that he was on morphine. These matters are not material issues either—the summary-judgment record conclusively shows that he violated the nip-point CSR and was discharged for that violation regardless of whether, for example, he fully understood the HR manager’s questions during her interview of him about the incident. See Roper, 2013 WL 6465637, at *4 n.4; Moore, 981 S.W.2d at 269. His deposition testimony and the slide-deck presentation conclusively establish the facts of his violation of the nip-point CSR.

He next argues, as above, from the erroneous employee training records in the written presentation. That circumstance does not raise a material fact issue at the pretext step, for the reasons we gave above. See Apache, 627 S.W.3d at 339; Jones, 2022 WL 318585, at *20–21.

The next argument also concerns his interview with the HR manager, from which she prepared the Statement of his answers. He signed that Statement, affirming its accuracy, and in it, he admitted having made a mistake by putting his hand on the belt:

Normally if you were going to put your hand in there, would you [sic] lock it out again. My mistake was to put my hand. But normally we look to check to see if the belt was on or off, but I made a mistake to put my hand to check to see if it was loose.

Then in his deposition, he testified that the “mistake” characterization was inaccurate yet admitted that he touched the belt:

Q. Okay. And paragraph 26 says: Normally, if you were going to put your hand in there, would you lock it out again? My mistake was to put my hand. But normally we look to check to see if the belt was on or off. But I made a mistake to put my hand to check to see if it was loose. But I touched it because it wasn’t running. And I walked around and the chain never ran. So when I opened the door and it wasn’t running, but I touched it and it made another cycle. Do you see that?

A. Yes, I do see it.

Q. And is paragraph 26 accurate?

A. No, it’s not accurate.

Q. What is inaccurate about paragraph 26?

A. The part where it says that I made a mistake.

Q. Okay. So did you—you reached in and touched the belt, correct?

A. Yes. I did touched it, yes.

Q. And before I get into that, is—does paragraph 26 accurately reflect what you told Pactiv employees when this statement was being put together?

A. I’m sorry. Can you repeat?

Q. Who were you speaking with at Pactiv when this statement was being put together?

A. With Andrew and that one—the lady from human resources, Courtney.

Q. Is that Andrew Lilly?

A. Correct.

Q. And was—and is that Courtney Davis?

A. Yes, correct.

Q. So does paragraph 26 accurately reflect what you told Andrew Lilly and Courtney Davis?

A. The paragraph says that I put my hand, but at no point I made a mistake.

Q. But—but did you tell Andrew Lilly and Courtney Davis what paragraph 26 says, that it was a mistake to put your hand on the belt?

A. Yes.

Fact issue or not about whether to characterize his actions as a mistake, the summary-judgment record conclusively shows that his touching the belt where he did violated the nip-point CSR. His argument about the “mistake” characterization thus raises no material fact issue.

His next argument is to reraise the evidence showing that other mechanics trained him that he could troubleshoot machines at times while the machine was not deenergized by LOTO. We reject this argument for the same reasons given above, including that the evidence does not show any inconsistency in Pactiv’s explanation for discharging him. See Avila, 2018 WL 4100854, at *12 (evidence of circumstance “irrelevant to [employer]’s decision to terminate” employee does not raise fact issue); Serur, 2004 WL 1404141, at *5 (“[T]he summary-judgment evidence suggests that the extended-leave policy may not have been uniformly applied. However, [employer] also has a three-day absence policy. Because [employee] did not show any evidence regarding the three-day rule, violation of this policy is sufficient to justify the termination.”).

*13 Sanchez-Rolon next asserts a fact issue arising from his deposition testimony that he did not give the Statement freely because, he testified, “on that day, the safety supervisor and Phil Darby and Frank Parker told me that due to company protocol, I have to give them that statement on that date.” Whether the Statement was freely given is not material—the summary-judgment record conclusively establishes the facts of the violation of the nip-point CSR, and this testimony does not rebut Pactiv’s proffered reason for the discharge at the pretext step.

Finally, Sanchez-Rolon points to the dangerous work environment of the Temple facility and to Pactiv’s installing the safety device after his injury. But these circumstances do not rebut Pactiv’s reason for the discharge. Rather than rebut the explanation that Pactiv was enforcing its nip-point CSR, the evidence of the dangerous work environment confirms why that CSR exists and is enforced. See Key, 2004 WL 1686153, at *4 (“[T]he fact that the spending cuts that eliminated [employee]’s position were successful in balancing [employer]’s budget does not rebut [employer]’s stated purpose for making the cut; rather it confirms it.”). And the installation of the safety device is equally consistent with Pactiv’s proffered reason for the discharge. See Continental Coffee Prods., 937 S.W.2d at 450 (“Where circumstantial evidence is relied upon, and the circumstances are equally consistent with either of two facts … , no more than a scintilla of evidence supports a finding.”); Key, 2004 WL 1686153, at *4 (evidence at pretext step must show inconsistency in employer’s stated legitimate reason for discharge, rebutting that reason).

In all, we conclude that in response to Pactiv’s motion for summary judgment, Sanchez-Rolon failed to raise a genuine issue of material fact on the causation element of his claim at the pretext step of the framework. Pactiv was thus entitled to judgment as a matter of law on his sole claim. We need not reach any other issue raised by the parties. See Tex. R. App. P. 47.1.

CONCLUSION

We affirm the trial court’s summary judgment.

Affirmed

Footnotes

1Pactiv’s counsel told the trial court that a nip point is “an area on the machine where you can get caught, either your clothes or your finger or your hand or any part of your body could get caught in this area.”

2See also Kingsaire, Inc. v. Melendez, 477 S.W.3d 309, 313 (Tex. 2015) (“[A] jury may not reasonably infer an ultimate fact from meager circumstantial evidence which could give rise to any number of inferences, none more probable than another.” (quoting Hancock v. Variyam, 400 S.W.3d 59, 70–71 (Tex. 2013))).

3In Apache Corp. v. Davis, the Supreme Court of Texas explained the contours of retaliation-claim causation, see 627 S.W.3d 324, 325–26, 334–39 (Tex. 2021), and its explanation applies to Sanchez-Rolon’s claim under the Anti-Retaliation Law. The Apache explanation spells out what the causation standard announced in Texas Department of Human Services v. Hinds entails. See id. (discussing and applying Texas Dep’t of Hum. Servs. v. Hinds, 904 S.W.2d 629, 631–36 (Tex. 1995)). Hinds‘s causation standard applies to claims under the Anti-Retaliation Law. See id. at 336; Continental Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996).

4See, e.g., Trevino v. Corrections Corp. of Am., 850 S.W.2d 806, 808–09 (Tex. App.—El Paso 1993, writ denied) (direct evidence of retaliation causation in form of letter stating that employee was discharged for maintaining workers’-compensation claim for over six months).

5See Tawil v. Cook Child.’s Healthcare Sys., 582 S.W.3d 669, 686 (Tex. App.—Fort Worth 2019, no pet.) (“Though [employer] filed both a no-evidence and a traditional motion for summary judgment, we will not segregate our review to address the unique burdens associated with each type of motion…. [I]n reviewing a hybrid motion in which both parties brought forth summary-judgment evidence, the differing burdens are immaterial, and the ultimate issue is whether fact issues exist. Thus, our approach will be to review the full summary-judgment record to determine whether fact issues exist.” (internal citation omitted)).

6It is left to other law to make discharges for injuries actionable or not. See, e.g., Tex. Lab. Code §§ 21.002(6) (defining “disability” to include “a mental or physical impairment that substantially limits at least one major life activity … , a record of such an impairment, or being regarded as having such an impairment”), 21.051(1) (prohibiting discharge based on disability).