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At a Glance:
Title:
Anderson v. Corrugated Services, Inc.
Date:
May 24, 2001
Citation:
3:99–CV–1774D
Status:
Unpublished Opinion

Anderson v. Corrugated Services, Inc.

United States District Court, N.D. Texas, Dallas Division.

Michael ANDERSON, et al., Plaintiffs,

v.

CORRUGATED SERVICES, INC., Defendant.

No. CIV.A. 3:99–CV–1774D.

|

May 24, 2001.

MEMORANDUM OPINION AND ORDER

FITZWATER, District J.

*1 Defendant Corrugated Services LP (“CSI”) terminated the employment of one of its drivers, plaintiff Michael Anderson (“Anderson”), five days after its President personally observed him violate for the second time (after having been counseled once for a similar violation) company policies concerning misuse of company property and geographical restrictions on truck operations. The termination came over seven months after Anderson returned to work from an absence arising from his second workers’ compensation claim as a CSI employee. Anderson sues CSI alleging that it retaliated against him, in violation of Tex. Lab.Code Ann. § 451.001 (Vernon 1996), for filing the workers’ compensation claim. He sues for intentional infliction of emotional distress, contending that CSI described him to a prospective employer as “bad news.” Anderson’s wife, Marie (“Mrs.Anderson”), sues CSI derivatively for loss of consortium. CSI moves for summary judgment.1 A reasonable trier of fact could not find that CSI retaliated against Anderson in violation of § 451.001. As a matter of law, characterizing a former employee as “bad news” does not qualify as extreme and outrageous conduct, which is a necessary element of a claim for intentional infliction of emotional distress. Mrs. Anderson concedes that her claim is derivative of her husband’s. The court therefore grants CSI’s motion for summary judgment and dismisses this action by judgment filed today.

I

The court begins by addressing a threshold issue of subject matter jurisdiction. CSI was sued, and it answered, under the name “Corrugated Services, Inc.” Jurisdiction in this case is predicated on diversity of citizenship. Plaintiffs allege that they are Louisiana citizens and that CSI is a Texas corporation whose principal place of business is located in Texas. See Compl. ¶¶ 1 and 2. CSI moves for summary judgment, however, under the designation “LP” rather than “Inc.” See MSJ at 1. This would suggest that CSI is a limited partnership rather than a corporation. Under Carden v. Arkoma Associates, 494 U.S. 185 (1990), if CSI is a limited partnership and one of its general or limited partners is a Louisiana citizen, this court lacks subject matter jurisdiction. Id. at 195 (holding that in evaluating jurisdiction in case where one party is limited partnership, existence of diversity is determined according to citizenship of each of partnership’s members). Accordingly, within ten calendar days of the date this memorandum opinion and order is filed, CSI must file a written pleading with this court that discloses the citizenship of each general and limited partner (if a partner is a corporation, it must disclose both its states of incorporation and of its principal place of business) or, if it is not a limited partnership, must disclose its proper legal entity (i.e., corporation). If it fails to do so, the court will vacate its judgment for lack of subject matter jurisdiction on the presumption that it lacks such jurisdiction and this case will be subject to dismissal without prejudice.

II

*2 CSI recycles various products and converts them into cardboard. It employs truck drivers to retrieve scrap cardboard and other paper products and deliver them to the CSI facility, which is located just outside downtown Forney, Texas, and to deliver recycled products to CSI customers. Because Forney is a small town, CSI has for several years observed a company policy that forbids its drivers from driving company tractor-trailers into or through the downtown area. CSI company policy also prohibits its personnel from engaging in personal business on company time and from using company equipment to conduct personal business.

Anderson started employment at CSI as a truck driver in April 1992. CSI discharged him in August 1997 on the grounds that he had violated the company’s prohibitions against engaging in personal business on company time, using company equipment to conduct personal business, and driving into or through Forney. Anderson alleges that the real reason CSI terminated him was that he had filed a workers’ compensation claim—his second while a CSI employee—arising from a severely broken ankle that he suffered in January 1997 during the course and scope of his employment at CSI.

Anderson also asserts that after CSI discharged him and while he was seeking employment at Kaplan Trucking (“Kaplan”), CSI told Kaplan that he was “bad news.”

III

CSI moves for summary judgment dismissing Anderson’s retaliation claim on the grounds that he cannot establish a causal link between the filing of the workers’ compensation claim and his discharge and cannot prove that CSI terminated his employment based on a retaliatory motive rather than on the legitimate reason that it has adduced.

A

Section 451.001 provides that a person may not discharge or in any other manner discriminate against an employee 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 Ann. § 451.001 (Vernon 1996).

Texas law follows a type of burden-shifting method for determining whether a plaintiff is entitled to prevail on such a claim. The employee must initially demonstrate a causal link between his discharge and his participation in the protected activity. See Terry v. S. Floral Co., 927 S.W.2d 254, 257 (Tex.App.1996, no writ). He need not show that he was fired solely because he engaged in the protected activity, but he must demonstrate that it was at least a determining factor in the discharge. See id. The causal connection is an element of the employee’s prima facie case and may be established by direct or circumstantial evidence. Id. Once the employee establishes the link, the employer has the burden of rebutting the alleged discrimination by showing there was a legitimate reason behind the discharge. Id. If the employer meets this burden, then to survive summary judgment, the burden shifts back to the employee to produce controverting evidence of a retaliatory motive. Id. At that point, to recover under § 451.001, the employee must show that the discharge would not have occurred when it did but for his assertion of a compensation claim. 174 F.3d 615, 623 (5th Cir.1999). At the summary judgment stage, he need only raise a genuine issue of material fact. See Tutton v. Garland Indep. Sch. Dist., 733 F.Supp. 1113, 1116 (N.D.Tex.1990) (Fitzwater, J.).

B

*3 The court first considers whether Anderson has established the causal link necessary to meet his prima facie burden. CSI appears to contend that Anderson must at this stage demonstrate “but for” causation. See D. Br. at 7 (arguing that to establish causal link, employee must show “but for” filing claim, he would not have been fired). Although anti-retaliation law in general, and Texas law in particular, is not in all respects cogent,2 the court must disagree with CSI’s position. First, Texas does not appear to require “but for” causation as part of the prima facie case. In Palmer v. Miller Brewing Co., 852 S.W.2d 57, 61 (Tex.App.1993, writ denied), for example, the court held that merely showing that the employee had informed his employer of his injury created a fact issue as to whether there was a causal link between the compensation proceeding and the termination. Palmer cited Mid–South Bottling Co. v. Cigainero, 799 S.W.2d 385, 389 (Tex.App.1990, writ denied) (former article 8307c case), in which the court held that once the employee showed that he notified his employer of his injury and that he was terminated, the burden shifted to the employer to establish good cause to support the firing. This court therefore holds that under Texas law, the causal link that an employee must establish at the prima facie stage consists merely of establishing the historical facts that the employer was aware of the protected activity and that the employee was subsequently terminated.

In the present case, the evidence is undisputed that CSI was aware of the workers’ compensation claim arising from Anderson’s January 1997 ankle injury. It has introduced summary judgment evidence that it filed the claim for Anderson, see D.App. 37–38, and that it discharged him in August 1997, id. at 83. Anderson has therefore met his prima facie burden of establishing a causal link between the two.

C

Because Anderson has met this prima facie obligation, CSI has the burden of rebutting the alleged discrimination by showing there was a legitimate reason for discharging him. CSI maintains that it proffered legitimate, non-retaliatory reasons. Anderson does not appear to contest that CSI has met this burden. See Ps. Br. at 5 (arguing that CSI’s explanation is false and pretextual). The court concludes that CSI has met its obligation by adducing evidence that it discharged Anderson for violating company policy. Because it will assist in the analysis that follows, the court will recount in this section of the opinion the evidence that supports CSI’s reasons for terminating Anderson’s employment.

CSI policy prohibits employees from engaging in personal business on company time, using company equipment to conduct personal business, and driving into or through parts of Forney. CSI made Anderson aware of these policies shortly after he commenced employment. The company handbook, a copy of which was provided to him, stated that unauthorized use of company equipment was a violation of company policy and that a policy violation could result in immediate termination.

*4 Anderson received warnings for his conduct in July 1992 (driving company truck carelessly), February 1993 (failing to show for work and to notify anyone of his absence), and December 1994 (driver complaint about his driving). In August 1995, without authorization and after he had already completed his deliveries for the day and clocked out, Anderson drove a CSI truck to a Forney truck stop to purchase a lottery ticket and a drink. CSI’s President and Chairman, Jones Felvey II (“Felvey”), observed him. He was subsequently counseled for using, without authorization, a company truck for personal business.

In March 1995 Anderson had an accident in which he fractured his left rotator cuff. CSI filed a workers’ compensation claim on his behalf. Anderson had surgery for this injury in 1996 and no one from CSI attempted to dissuade him from having the surgery. In January 1997, Anderson was injured again when he broke his ankle while on the job. CSI filed a workers’ compensation claim on his behalf. Anderson was off work until April 14, 1997. No manager told him he should not have filed the claim, and neither his immediate supervisor, Jerry Fox (“Fox”), nor Felvey ever said anything negative about the fact that the claim had been filed.

On August 1, 1997, over seven months after he returned to work, Anderson drove his company tractor-trailer to a bank in downtown Forney to obtain money so that his wife could purchase milk and diapers for their grandson. No CSI supervisor authorized the trip or the use of the vehicle for this purpose. Felvey saw the tractor-trailer being driven to the bank in downtown Forney, observed Anderson park the vehicle, and saw him enter the bank. Subsequently, he spoke to Fox and Howard Carley (“Carley”) about the incident. This was the second time CSI’s President had observed Anderson breach the company’s policy against improper use of company equipment, and CSI was not aware of any employee other than Anderson who had repeatedly violated the policy. CSI discharged Anderson on August 6, 1997.

D

The burden has shifted back to Anderson to introduce evidence that is sufficient for a reasonable trier of fact to find retaliatory motive. At this stage, Anderson must produce proof that would permit a finding of “but for” causation. See Burch, 174 F.3d at 623.3

1

The court must address as a threshold matter Anderson’s contention that, under the Supreme Court’s recent decision in Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000), once he has met his prima facie burden, he need only introduce a scintilla of evidence calling into question the veracity of CSI’s legitimate, non-retaliatory reason for discharging him. See Ps. Br. at 4. The court holds that this generalization about Reeves is incorrect.

While it is true that a plaintiff may meet his burden of proof by establishing “that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination,” Reeves, 530 U.S. at 143 (citation omitted), “[a] mere scintilla of evidence of pretext does not create an issue of material fact in all cases,” Crawford v. Formosa Plastics Corp., 234 F.3d 899, 902–03 (5th Cir.2000) (emphasis added). Rather, a plaintiff must adduce “sufficient evidence to find that the employer’s asserted justification is false.” Id. at 903 (emphasis in original) (quoting Reeves, 530 U.S. at 148). “It is, therefore, possible for a plaintiff’s evidence to permit a tenuous inference of pretext and yet be insufficient to support a reasonable inference of discrimination.” Id. (emphasis added); see also Reeves, 530 U.S. at 148 (noting that summary judgment would be appropriate “if the plaintiff created only a weak issue of fact as to whether the employer’s reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred”). The sufficiency of a plaintiff’s evidence “must be made on a case-by-case basis, depending on the nature, extent, and quality of the evidence[.]” Crawford, 234 F .3d at 903. As the Fifth Circuit pointed out in its recent opinion in Okoye v. The University of Texas Houston Health Science Center, 245 F.3d 507 (5th Cir.2001):

*5 The Supreme Court has also made clear, however, that instances exist where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant’s explanation, no rational factfinder could conclude that the action was discriminatory.

Id. at 514 (internal quotations and brackets deleted). The court therefore declines to hold that Anderson’s prima facie case, combined with a mere scintilla of evidence of pretext, is ipso facto sufficient to withstand summary judgment.

2

The court now turns to Anderson’s attempts to introduce evidence that is sufficient to create a genuine issue of material fact. In opposition to CSI’s evidence of the reasons it terminated his employment, Anderson relies on the factors set out in Palmer, 852 S.W.2d at 61, and like cases for establishing causation by circumstantial evidence. See Ps. Br. at 7, 8, 9, and 14. Palmer holds that circumstantial evidence that is sufficient to prove the causal connection

includes: 1) knowledge of the claim by those making the decision to terminate; 2) a negative attitude toward the employee’s injured condition; 3) failure to follow company policy when disciplining an employee who made a claim; and 4) discriminatory treatment of this employee when compared to the treatment of other employees with this same disciplinary problem.

Id. (citing Paragon Hotel Corp. v. Ramirez, 783 S.W.2d 654, 658 (Tex.App.1989, writ denied)). Anderson also contends that those who terminated him stated false reasons for his discharge. See Ps. Br. at 17.

3

CSI does not dispute Anderson’s evidence that Carley, Fox, and Felvey were the persons who participated in his discharge and that they were aware of his January 1997 workers’ compensation claim. See D. Rep. Br. at 2 (commencing rebuttal of Palmer factors with “negative attitude” element and omitting any reference to “knowledge of the claim” component). The court therefore begins by considering his proof that they expressed a negative attitude about his condition.

Anderson cites various parts of the summary judgment record that concern assignment of tractors to CSI drivers. See Ps. Br. at 8–9. None of this evidence is shown to relate to a negative attitude about Anderson’s injured condition. The record is cited without any explanation or analysis of the significance or probative value of the evidence. See id. Proof that Anderson was not given his own truck, or concerning the assignment of trucks, is not sufficient evidence of a negative attitude about his injury. His proof does not, for example, show how he was treated before his injury. Moreover, his thin analysis does not take into account Fox’s statement that assigning trucks by seniority was only a “general practice” from which he deviated for various reasons. This is not evidence of negative treatment regarding Anderson’s decision to file for workers’ compensation benefits, nor is it negative treatment in the abstract. Cf. Paragon Hotel, 783 S.W.2d at 658 (criticizing company policy that excluded employees who were injured and reported injuries from participating in office contest).

*6 Anderson does cite a statement by Carley concerning the January 1997 incident that led to the broken ankle (while Anderson was rendering aid to another driver he broke his ankle when he slipped on the ice). According to Anderson, Carley characterized the injury as “haste, ... lack of diligence or judgement.” Ps. Br. at 9 (emphasis deleted). Anderson omits the less inculpatory language “miscalculation of conditions,” as well as the general disclaimer at the top of the internal accident reporting document indicating that “[t]his report is intended to help correct problems, not to criticize or penalize employees injured while working.” Ps.App. 59. A reasonable trier of fact could not find that Carley’s statement amounted to anything more than descriptive and constructive language that reflected a generalized concern that employees should act carefully, even when assisting motorists. It could not find from this evidence that Carley and/or CSI had a negative attitude about the fact that Anderson had suffered an on-the-job injury that resulted in a workers’ compensation claim.4 Moreover, a negative attitude about the events leading up to a plaintiff’s injury, such as negligence and a disregard for safety procedures, is not prohibited by the statute; the law only protects one’s status as a workers’ compensation recipient. Cf. Cont’l Coffee Prod. Co. v. Cazarez, 937 S.W.2d 444, 451–52 (Tex.1996) (holding that enforcing legally permitted workplace policies is not probative regarding existence or not of negative attitude regarding workers’ compensation recipient).

4

The court next considers Anderson’s allegation that CSI failed to follow company policy when disciplining him.

Anderson argues that those who terminated his employment did not adhere to company policy because they failed to discipline other drivers who drove through downtown Forney. He also disputes CSI’s definition of what parts of Forney are off limits and points to policy infractions by other employees that did not result in discipline.

Anderson’s evidence is insufficient to raise a genuine issue of material fact unless the CSI personnel who effected his termination knew about others who violated company rules and treated Anderson less favorably. This evidence is only proof of disparate treatment if the company knew about other violators and did not discipline them. See Smith v. Wal–Mart Stores, 891 F.2d 1177, 1180 (5th Cir.1990). Anderson’s evidence would not permit a reasonable trier of fact to make such a finding. Anderson’s observation of CSI trucks driving near his home and through downtown Forney does not reliably indicate that anyone in management—particularly Carley, Fox, and Felvey—witnessed this occur, or that any employee violated the policy a second time after having been counseled about the infraction. There is no evidence in the record that management generally was on the lookout for violations of this policy by monitoring its drivers’ activities in and around Forney. A reasonable finder of fact could not assume or infer that any undocumented violations of company policy similar to Anderson’s were observed and treated more favorably.

*7 It is significant that Anderson twice violated company policy in view of Felvey, CSI’s President. In August 1995 CSI managers counseled Anderson, and in August 1997 he was discharged after violating company policy. This turn of events only suggests that the reason he was caught violating company policy was (from his perspective) unfortunate, and that CSI’s ability to discipline offenders was imperfect, not that he was being retaliated against for his workers’ compensation claim.

Anderson also relies on evidence to challenge CSI’s interpretation of what constituted the parts of Forney that were off limits. This proof does not present a genuine issue of material fact. CSI, as the employer, had a right to interpret the terms of its policy so long as it did not do so in a way that amounted to retaliation for filing a workers’ compensation claim. A disagreement as to the meaning of the boundaries of downtown Forney does not of itself show falsity in the employer’s explanation. Cf. Little v. Republic Ref. Co., 924 F.2d 93, 97 (5th Cir.1991) (“[E]ven an incorrect belief that an employee’s performance is inadequate constitutes a legitimate, non-discriminatory reason. We do not try the validity of good faith beliefs as to an employee’s competence. Motive is the issue.”).

5

With respect to discriminatory treatment of Anderson when compared to the treatment of other employees with the same disciplinary problem, there is no evidence that Anderson was treated differently from similarly-situated individuals. Anderson has not produced proof showing that there were persons in like circumstances. Absent such evidence, a reasonable trier of fact could not assume that similarly-situated individuals were treated more favorably than was Anderson when they engaged in, and were disciplined for, similar repeated instances of violating company rules.

Anderson points the court to Carley’s memorandum to Anderson’s personnel file recounting a meeting that Carley, Fox, and Anderson had following his termination. This document does not permit a reasonable inference that Anderson was treated more harshly than were others who were guilty of similar infractions. Nor does it reveal CSI’s intent to retaliate against Anderson for receiving workers’ compensation. The fact that management admits in the memorandum that it did not refute Anderson’s rationale for breaking the rule does not permit a reasonable inference of retaliation. In particular, his comments would not even permit a reasonable inference that there were CSI employees who were truly similarly situated. A reasonable trier of fact could only find from the context of Carley’s memorandum that he and Fox simply did not want to get into a pointless argument with Anderson regarding the fact that others may have once done something that Anderson did and were not punished to the same extent. Anderson never connects the content of this document to individuals who were treated more favorably than was he. He does not show that the unnamed others who violated the company policy regarding driving through Forney had as many demerits as did he, or that they had been counseled on a prior occasion (and observed by the company President) for using their company truck after “clocking out.” An employer is permitted under Texas law to punish violations of existing policies when they come to light, even if it does so imperfectly or differently than would someone else under similar circumstances.

*8 Concerning this Palmer factor, Anderson also offers a convoluted account of the truck incident for which he was counseled the first time. Anderson apparently reasons that, because it is possible that he did not clock out before being at the truck stop purchasing lottery tickets, it was unreasonable for Felvey to mark down in his copy file the discrepancy between the time he clocked out and also to assume that he was violating company policy by using his truck for personal business after clocking out. It is notable that, in his brief, Anderson has not directed the court to any explanation of this incident that does not involve his using company property—his truck—for personal business after he had finished working for the day. Even if the company’s directives were vague and Anderson was treated “unfairly” in some sense, he has neither presented any evidence that connects his treatment with his decision to file for workers’ compensation, nor has he shown how others who sought workers’ compensation were also treated unfairly.

Anderson’s evidence concerning this factor consists primarily of subjective and conclusory assertions that he was treated differently and negatively upon returning from his second workers’ compensation leave. He offers no basis for what proper treatment would have been, considering his various violations of company policy. This proof is inadequate to survive summary judgment. See Olabisiomotosho v. City of Houston, 185 F.3d 521, 525 (5th Cir.1999) (holding that conclusory allegations, speculation, and unsubstantiated assertions are not evidence).

6

Anderson also maintains that those who terminated him stated false reasons for his discharge. The evidence in the record, however, would only permit a reasonable trier of fact to find that the events that led to Anderson’s termination were his violations of company policy, not his filing of a workers’ compensation claim.

Anderson admitted in his deposition that he knowingly violated company policy by taking his truck into downtown Forney to go to the bank for personal reasons in August 1997. He also acknowledged that some type of punishment would have been appropriate: “I mean, what’s wrong with suspension or something?” It is not proof of discrimination merely to say that one should have been punished, but was punished more strongly than he expected. He must show that he was punished more severely than were similarly-situated individuals and that he was singled out on the basis of his protected characteristic, in this case, the filing of a workers’ compensation claim. Anderson has not adduced sufficient evidence of such treatment to raise a genuine issue of material fact.

7

It must be remembered that factors like those set out in Palmer and like cases are intended to assist the trier of fact in determining whether an employer acted with a retaliatory motive. See, e.g., Palmer, 852 S.W.2d at 61 (stating that “[c]ircumstantial evidence can prove the causal connection” and listing what “[s]uch evidence includes”). Despite evidence concerning some of the factors, the proof may be so weak that it is insufficient to permit a reasonable finding of retaliation, and thus to warrant a trial.

*9 This is such a case. To find in Anderson’s favor, a jury would have to credit speculative evidence and draw unreasonable inferences from inconsequential inconsistencies in the various managers’ accounts of the events leading up to his termination. The jury would be required to disregard the single, plausible explanation for his discharge: Anderson twice violated a CSI policy that the company President observed and felt strongly about, and did so after he had been counseled following the initial violation. Given that CSI discharged Anderson five days after he was observed violating the company policy but over seven months after he returned to work from workers’ compensation leave, a jury would essentially have to believe that in the months between Anderson’s return to work and his eventual termination, CSI management laid in wait for any infraction to use as a pretext to terminate him. The trier of fact would be obligated to conclude that, for seven months, an employer who was motivated to terminate Anderson because he had filed a workers’ compensation claim and was getting hurt too often, retained him as an employee, with the “risk” that he might get hurt again, merely as a subterfuge to conceal its ultimate intent to fire him. The jury would also be required to conclude that, although members of CSI management harbored certain prejudices against Anderson, they were sufficiently adept at mendacity to keep up their act before, during, and after his termination, never once suggesting that his status as a workers’ compensation beneficiary motivated their decision, nor inadvertently memorializing evidence of such intent in their files. In short, a jury would have to ignore the record evidence, infer management personnel’s intentions without a predicate in the record, and assume that the stated reasons for every negative consequence visited upon Anderson during his employment were in fact not true, despite the lack of contrary evidence.

Accordingly, the court grants summary judgment dismissing Anderson’s retaliation claim.

IV

CSI moves for summary judgment dismissing Anderson’s claim for intentional infliction of emotional distress. Although it does so on several grounds, the court need only consider CSI’s contention that Anderson cannot meet the essential element of outrageous conduct. See D. Br. at 2.

To establish this claim, Anderson must prove that (1) CSI acted intentionally or recklessly, (2) its conduct was extreme and outrageous, (3) its actions caused him emotional distress, and (4) the emotional distress was severe. See Twyman v. Twyman, 855 S.W .2d 619, 621 (Tex.1993); see also Stults v. Conoco, Inc., 76 F.3d 651, 658 (5th Cir.1996). Extreme and outrageous conduct is that which is so extreme in degree, or so outrageous in character, as to go beyond all bounds of decency, to be regarded as atrocious, and utterly intolerable in a civilized community. Wornick Co. v. Casas, 856 S.W.2d 732, 734 (Tex.1993); see also Stults, 76 F.3d at 658. “Generally, the case is one in which a recitation of the facts to an average member of the community would lead him to exclaim, ‘Outrageous.” ’ Cantu v. Rocha, 77 F.3d 795, 810 (5th Cir.1996) (quoting Dean v. Ford Motor Credit Co., 885 F.2d 300, 306 (5th Cir.1989)). “It is for the court to determine, in the first instance, whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery.” McKethan v. Texas Farm Bureau, 996 F.2d 734, 742 (5th Cir.1993) (quoting Wornick Co., 856 S.W.2d at 734). Whether a party’s conduct may reasonably be regarded as extreme and outrageous is a question of law. Bradford v. Vento, 48 S.W.3d 749, ___, 2001 WL 421238, *8 (Tex. Apr. 26, 2001). The court holds as a matter of law that characterizing a former employee as “bad news” does not qualify as extreme and outrageous conduct. Therefore, CSI is entitled to summary judgment dismissing this claim.

V

*10 Mrs. Anderson seeks damages for her loss of consortium with her husband. She acknowledges “that for [her] claims to survive, [ ] Anderson’s claims must survive.” Ps. Br. at 2. Accordingly, because Anderson’s claims have been dismissed, Mrs. Anderson’s claim for loss of consortium must also be dismissed.

For the reasons stated, the court grants CSI’s December 1, 2000 motion summary judgment and dismisses this action by judgment filed today.

SO ORDERED.

Footnotes

1

CSI has also filed objections to plaintiffs’ summary judgment in a February 12, 2001 motion. Because the court either has not relied on evidence to which CSI has objected, or the evidence, even if considered, does not affect the court’s decision, the motion is denied as moot.

2

The Supreme Court explained in Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978), the analytical construct on which a prima facie case rests:

The method suggested in McDonnell Douglas [v. Green, 411 U.S. 792 (1973),] ... is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination. A prima facie case under McDonnell Douglas raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.

Id. at 577 (citation omitted). Under this reasoning, it would seem to make more sense to craft a prima facie case around factors that, if proved and unexplained, lead to a presumption of causation rather than to include causation as an element. Because the prima facie burden that applies to a retaliation claim includes causation at both stages, it is necessary to differentiate between the quantum of proof required to satisfy the causal link that is a component of a prima facie case and that which is required to prove retaliatory motive once the employer has produced its legitimate reason for the termination. Otherwise, the evidentiary regime seems somewhat redundant: the employee establishes a causal link, the employer presents evidence of a legitimate reason, and the employee (again) establishes causation. Federal courts applying federal anti-retaliation laws separate the distinct role of causation at the prima facie stage from causation at the persuasion stage by holding that the initial requirement that a plaintiff show a “causal link” is less stringent than the “but for” causation that a jury must find. See Long v. Eastfield College, 88 F.3d 300, 305 n. 4 (5th Cir.1996). It appears that Texas law does so as well in the context of a § 451.001 cause of action.

3

Anderson acknowledges in his brief that he must meet this burden. See Ps. Br. at 2–3.

4

Anderson’s reliance on alleged mistreatment of his rotator cuff injury by the doctor assigned by the company, see Ps. Br. at 9, is not evidence of a negative attitude about his injury absent some evidence that the physician mistreated him at the insistence of the company.

End of Document
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