Court of Appeals of Texas,
Rosalio ARELLANO, Appellant,
AMERICANOS USA, LLC, Appellee.
Nov. 29, 2010.
Rehearing Overruled Jan. 26, 2011.
Attorneys & Firms
*328 Byron Calderon, El Paso, TX, for Appellant.
Darryl J. Silvera, Silvera & Associates, Dallas, TX, for Appellee.
Before RIVERA, JJ.
DAVID WELLINGTON CHEW, Chief Justice.
Appellant, Rosalio Arellano (“Mr. Arellano”), brought action against Appellee, Americanos USA, LLC (“Americanos” or “the company”), alleging the company retaliated against him after he filed a workers’ compensation claim. He now appeals the trial court’s order granting Americanos’ motion for summary judgment. We reverse the trial court’s judgment and remand the case to the trial court for further proceedings.
Mr. Arellano worked primarily as a bus driver for Americanos for more than two and a half years. In October 2005, he injured his back while stepping off of a bus he was driving from El Paso, Texas to California. He filed a workers’ compensation claim, and Americanos sent him to Concentra in California for medical treatment.1 Mr. Arellano continued treatment at Concentra once back in El Paso, and was put on light duty at work per the doctor’s orders. Later, a non-Concentra physician treated Mr. Arellano and took him off of work from November 2005 through the end of 2006 for medical reasons. He resumed working as a bus driver for Americanos in January 2007, and his last day at the company was on December 24, 2007.
In August 2007, Mr. Arellano filed suit against Americanos, asserting wrongful termination and discrimination in violation of Section 451.001 of the Texas Workers’ Compensation Act. In February 2008, the trial court entered a discovery control plan and scheduling order. In August 2008, Americanos filed a traditional motion for summary judgment and a no-evidence motion for summary judgment.2 Mr. Arellano filed his response to Americanos’ motions for summary judgment about a month later, and he also filed an objection to the hearing on these motions on the grounds that the summary judgment deadline had passed based on the parties’ agreed deadline in their discovery control plan. Americanos then filed its objections *329 to and a motion to strike Mr. Arellano’s summary judgment evidence, specifically the affidavit in his response to the company’s motions for summary judgment.
The trial court held a hearing on Americanos’ motions for summary judgment on September 23, 2008. At the hearing, the court overruled Mr. Arellano’s objection that the summary judgment deadline had passed. At the conclusion of the hearing, the court entered an order granting Americanos’ motion for summary judgment. In October 2008, Mr. Arellano filed a notice of appeal.
As an initial matter, we have found Mr. Arrellano’s brief to be seriously lacking in substantive discussion of facts and authorities to be relied upon which brings it very close to waiving his complaints. See Jimenez v. Citifinancial Mortg. Co., Inc., 169 S.W.3d 423, 426 (Tex.App.-El Paso 2005, no pet.). Nevertheless, we have looked past those failings and find that the record before us is sufficient to reach the merits of his appeal.
In Issue One, Mr. Arellano argues Americanos’ motions for summary judgment violated the parties’ discovery control plan and scheduling order. Mr. Arellano contends Americanos should have applied for a leave of court to modify the summary judgment deadline, and the trial court erred in allowing the summary judgment hearing to proceed thirteen days before trial when the parties had expressly agreed that the summary judgment deadline was thirty days before trial.
The trial court’s discovery control plan indicated the “summary judgment deadline” as thirty days before trial, and it set the trial date as October 6, 2008. Americanos filed its motions for summary judgment on August 20, 2008, which was more than thirty days before trial. The court held a hearing on the motions on September 23, 2008. Because Americanos filed its motions for summary judgment at least thirty days before trial, it did not violate the summary judgment deadline in the discovery control plan and scheduling order. Issue One is overruled.
In Issue Two, Mr. Arellano argues Americanos waived its objections to the evidence in support of his summary judgment response, and that even if the trial court made an implicit ruling granting the company’s motion to strike his affidavit, the court erred in doing so. Specifically, Mr. Arellano asserts Americanos waived its objections to his affidavit by failing to obtain rulings from the trial court on its objections and motion to strike, and that in any case, his affidavit was not a sham affidavit, as the company claimed.
Failure to obtain written rulings on objections to summary judgment evidence waives the issue, unless the record reflects an implicit ruling by the trial court. Strunk, 225 S.W.3d at 99. In this case, there is no indication that Americanos’ objection to Mr. Arellano’s affidavit was ruled upon either explicitly or implicitly.3 As such, the company’s objection is *330 waived, and the objected-to summary judgment evidence remains a part of the summary judgment record. Accordingly, we may consider Mr. Arellano’s affidavit in our review of the merits of this appeal.
In Issues Three and Four, Mr. Arellano argues the trial court erred in granting summary judgment on either traditional or no-evidence grounds. Because the trial court did not specify the grounds upon which it granted the motion, we will affirm, if any ground asserted has merit. Western Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex.2005).
As with any summary judgment ruling, a traditional summary judgment is subject to de novo review. City of Houston, 589 S.W.2d at 678.
A no-evidence motion for summary judgment is essentially a pretrial motion for directed verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.2003).
A no-evidence motion is properly granted when the non-movant fails to produce proper summary judgment evidence, or the evidence produced is so weak as to create no more than a mere surmise or suspicion. See Id. at 617.
Here, Americanos’ grounds for traditional summary judgment were: (1) the company did not terminate Mr. Arellano; and (2) Mr. Arellano failed to show that there was a causal connection between the alleged discharge or discriminatory acts and a protected activity under Chapter 451. First, Americanos contends it never terminated Mr. Arellano, and that according to Mr. Arellano’s deposition testimony, his injury led him to leave the company. Second, the company asserts that based on Mr. Arellano’s deposition testimony, there was no evidence of a causal link between his workers’ compensation claim and the alleged discrimination or wrongful termination; instead it was Mr. Arellano’s “legitimate personal action” that resulted in the alleged discrimination, and his injury that resulted in his termination.
Chapter 451 of the Texas Labor Code provides: “A person may not discharge or in any other manner discriminate against an employee because the employee has: filed a workers’ compensation claim in good faith,” or otherwise participated in a workers’ compensation claim or suit in specified ways. Lozoya, 81 S.W.3d at 347.
In workers’ compensation retaliation claims, an employee can recover damages for retaliatory discharge under this provision only if he proves that without his filing a workers’ compensation claim, the discharge would not have occurred when it did. Benners v. Blanks Color Imaging, Inc., 133 S.W.3d 364, 369 (Tex.App.-Dallas 2004, no pet.).
So we disagree with Americanos that Mr. Arellano failed to establish the company terminated his position, and that he failed to establish a causal link between his workers’ compensation filing and the alleged discrimination and wrongful termination, when we examine the record in the light most favorable to Mr. Arellano, disregarding all contrary evidence and inferences. See Gray, 225 S.W.3d at 616. According to Mr. Arellano’s affidavit, the company discharged him from his employment after he sustained the work-related injury by ceasing to offer him bus routes to drive, putting him on the work schedule, and communicating with him. He also testified that subsequent to being injured and put on light duty by Concentra, Americanos expressed a negative attitude towards his injured condition by terminating his position as a bus driver and demoting him to a janitorial position. As a result, he earned a lower wage than before, and was subjected to humiliation due to the tasks he had to undertake. Mr. Arellano left the company between November 2005 and the end of 2006 because his personal doctor took him off of work for medical reasons. He resumed work as a bus driver for the company in January 2007, but the company continued to express a negative attitude towards his injured condition and subjected him to discriminatory treatment. For example, Mr. Arellano’s supervisor, Mr. Chavarria, persisted in changing his co-driver instead of allowing him to work with the same individual, which prevented him from “developing ... trust and rapport with [his] team driver.” According to Mr. Arellano, this “was never the case before [his] on-the-job injury,” nor was it the case with other drivers who did not claim for workers’ compensation benefits. Other instances in which Americanos treated Mr. Arellano differently than before his injury and differently from other drivers included assigning him buses that were dirty or had mechanical problems, denying his request to be assigned to a properly functioning bus, denying his request for taking a day off, and assigning him less routes or less desirable routes. Since his injury, Mr. Chavarria told Mr. Arellano that he was a problematic employee, would not respond to his questions, or look directly at Mr. Arellano when Mr. Arellano spoke to him. According to Mr. Arellano, the company ceased offering him bus routes to drive, and ignored his attempts to communicate with its employees after his last day at work. Since then, he had not received workers’ compensation or any medical benefits.
Examining the record in the light most favorable to Mr. Arellano, we determine that there are genuine issues of material fact as to whether Mr. Arellano was discharged or discriminated against for filing a workers’ compensation claim. Moreover, the record reflects that Americanos did not establish all elements of an affirmative defense. Because Americanos failed to establish that there were no genuine issues of material fact as to Mr. Arellano’s retaliation claim, we conclude the trial court *333 erred in granting summary judgment as a matter of law. See Rubio, 185 S.W.3d at 846. We sustain Issue Three.
In Issue Four, Mr. Arellano contends summary judgment was not properly granted under Gray, 225 S.W.3d at 616. We will also sustain Issue Four.
Having determined that none of the grounds advanced for summary judgment have merit, we reverse the trial court’s judgment and remand the case for further proceedings.
Concentra is a national healthcare company.
In its summary judgment motions, Americanos advanced the following summary judgment theories: (1) the company did not terminate Mr. Arellano; (2) Mr. Arellano failed to show a causal connection between the alleged discharge or discriminatory acts and a protected activity under Chapter 451.
The order does not contain any language indicating the trial court reviewed “all competent summary judgment evidence,” language that has been found adequate to support a finding the trial court implicitly sustained objections to the appellant’s summary judgment evidence. See Frazier v. Yu, 987 S.W.2d 607, 610 (Tex.App.-Fort Worth 1999, pet. denied).