An injury is compensable under the Act if it is sustained by an employee acting in the course and scope of his employment. See TEX. LAB. CODE § 401.011(10). “ ‘Course and scope of employment’ means an activity of any kind or character that has to do with and originates in the work, business, trade, or profession of the employer and that is performed by an employee while engaged in or about the furtherance of the affairs or business of the employer.” TEX. LAB. CODE § 401.011(12); see also Leordeanu v. Am. Prot. Ins. Co., 330 S.W.3d 239, 243–44 (Tex. 2010). “The term includes an activity conducted on the premises of the employer or at other locations.” Id. Relying on what is known as the “continuous coverage” rule, the Texas Supreme Court has “held that the course and scope of employment in cases of overnight travel is broad, extending even beyond the actual act of travel itself to include injuries sustained during ‘down time.’ ” Zurich Am. Ins. Co. v. McVey, 339 S.W.3d 724, 731–32 (Tex. App.—Austin 2011) (citation omitted).

*3 On the other hand, in what has been codified as the “coming and going” rule, an employee’s travel to and from work does not usually fall under the Act’s course-and-scope definition. See TEX. LAB. CODE § 401.011(12)(A); McVey, 339 S.W.3d at 728. This is “because [t]he risks to which employees are exposed while traveling to and from work are shared by society as a whole and do not arise as a result of the work of employers.” SeaBright, 465 S.W.3d at 642 (internal quotation marks and citation omitted). However, an exception arises if “the relationship between the travel and the employment is so close that it can fairly be said that the injury had to do with and originated in the work, business, trade or profession of the employer.” Id. (quoting Shelton v. Standard Ins. Co., 389 S.W.2d 290, 292 (Tex. 1965)). Courts have also held that employees traveling in company vehicles are excepted from the coming and going rule. See McVey, 339 S.W.3d at 729 (“[I]t is also undisputed that [the employee] was traveling in a vehicle that his company provided and paid for ... [c]onsequently, [the employee’s] travel is excepted from the ‘coming and going’ rule.”).

As the district court observed, the circumstances of this case are similar to those set forth in Shelton. 389 S.W.2d 290. There, the petitioner was working out of town and was struck by an automobile while crossing the street between his motel and a restaurant where he was going to have dinner. Id. at 291. In holding that the petitioner was in the course and scope of his employment when he was struck, the Texas Supreme Court reasoned:

Petitioner was on a trip of several days duration for his employer. Food and sleep were necessary if he was to perform the work for which he was hired, and under the terms of his employment contract he was permitted to stop and satisfy these physical needs and was paid the expenses incident thereto. He was not in Dallas by his own choice but was required to be there to do his job ... In these circumstances we are unable to say as a matter of law that his crossing the street to obtain food was not an incident of the employment, or that the injuries he received did not have to do with and originate in the employer’s business.

Id. at 294.

The factual scenario in Shelton is largely indistinguishable from the one here. In both cases, the employees who were working at out-of-town job sites decided to eat dinner at a restaurant off location (as they were permitted by their employers to do) and were subsequently injured while traveling from their lodging accommodations to the restaurant (like Shelton) or from the restaurant to their lodging accommodations (like Glazner). In Shelton, the Texas Supreme Court concluded that this activity was within the course and scope of employment and thus compensable under the workers’ compensation statute. Id. We do the same here. Other Texas courts have drawn similar conclusions under analogous circumstances. See SeaBright, 465 S.W.3d at 645 (holding that employee who was killed while traveling in his company vehicle to an out-of-town worksite was acting in the course and scope of his employment); McVey, 339 S.W.3d at 732, 734 (holding that employee who was killed while traveling in his company vehicle to an out-of-town worksite was in the course and scope of his employment and reasoning that he “was not traveling [out of town] by his own choice but was required to go there to do his job”). Moreover, Texas’s continuous coverage rule supports this analysis since Glazner was an employee working at an out-of-town jobsite when he sustained injuries while traveling during “down time.” See McVey, 339 S.W.3d at 731–32.

For these reasons, we hold that the district court did not err in rendering summary judgment in favor of Caroli on grounds that Plaintiffs-Appellants’ claims are barred by the exclusive remedy provision of the TWCA.³ See TEX. LAB. CODE § 408.001(a).

IV. CONCLUSION

*4 For the foregoing reasons, the district court’s summary judgment is AFFIRMED.

United States Court of Appeals, Fifth Circuit.

AIR EVAC EMS, INCORPORATED, Plaintiff—Appellee,

v.

Kent SULLIVAN, in his Official Capacity as Texas Commissioner of Insurance; Cassie Brown, in her Official Capacity as Texas Commissioner of Workers’ Compensation, Defendants—Appellants,

v.

Texas Mutual Insurance Company; Liberty Mutual Insurance Company; Zenith Insurance Company; Hartford Underwriters Insurance Company; Twin City Fire Insurance Company; Transportation Insurance Company; Valley Forge Insurance Company; Truck Insurance Exchange, Intervenors—Appellants.

No. 18-50722

|

August 4, 2021

Appeal from the United States District Court for the Western District of Texas, USDC No. 1:16-CV-60, Sam Sparks, U.S. District Judge.

Attorneys & Firms

Joshua Lee Fuchs, Jones Day, Houston, TX, Benjamin J. Cassady, Charlotte Taylor, Esq., Jones Day, Washington, DC, Roger James George, Jr., Trial Attorney, George Brothers Kincaid & Horton, L.L.P., for Plaintiff-Appellee.

Lisa Bennett, Assistant Solicitor General, Office of the Attorney General for the State of Texas, Jennifer Settle Jackson, Assistant Attorney General, Office of the Attorney General, Financial Litigation & Charitable Trusts Division, for Defendants-Appellants Kent Sullivan, Texas Commissioner of Insurance, Cassie Brown, Texas Commissioner of Workers’ Compensation.

Matthew Birk Baumgartner, Armbrust & Brown, P.L.L.C., Austin, TX, Paul W. Schlaud, Texas Mutual Insurance Company, Office of the General Counsel Division, Austin, TX, for Intervenor-Appellant Texas Mutual Insurance Company.

Robert F. Josey, Hanna & Plaut, L.L.P., Austin, TX , for Intervenor-Appellant Liberty Mutual Insurance Company.

James Michael Loughlin, Stone Loughlin & Swanson, L.L.P., Austin, TX, for Intervenors-Appellants Zenith Insurance Company, Hartford Underwriters Insurance Company, Twin City Fire Insurance Company, Transportation Insurance Company.

Before Stewart, Clement, and Ho, Circuit Judges.

Opinion

James C. Ho, Circuit Judge:

Air Evac EMS, Inc., is an air ambulance provider that offers medical transport services to a wide variety of patients. That includes patients who are injured at their workplace. The price that Air Evac may charge for such transportation is accordingly subject to conflicting regulatory regimes.

The Texas Workers’ Compensation Act (“TWCA”), Tex. Lab. Code §§ 401.007–419.007, regulates the prices that insurers must pay to providers for various medical services utilized by their beneficiaries. That includes air transport services. But those price restrictions conflict with the federal Airline Deregulation Act (“ADA”), which makes clear that the states “may not enact or enforce a law, regulation, or other provision ... related to a price, route, or service of an air carrier that may provide air transportation under this subpart.” 49 U.S.C. § 41713(b)(1).

The price restrictions are not saved by the McCarran–Ferguson Act. That act makes clear that “[n]o Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance, or which imposes a fee or tax upon such business, unless such Act specifically relates to the business of insurance.” 15 U.S.C. § 1012(b). But the price regulations at issue here do not govern “the business of insurance.” The McCarran–Ferguson Act concerns state efforts to regulate the relationship between insurers and insureds—not between insurers and providers.

We accordingly affirm. In doing so, we agree with our sister courts of appeals, which have unanimously held that the ADA preempts state price caps on air ambulance reimbursements, and that those state price caps are not saved by the McCarran–Ferguson Act. And we disagree with the Texas Supreme Court, which has reached contrary conclusions by a divided vote.

I.

Under the TWCA, employees in Texas receive guaranteed medical care paid for by employer-funded insurance policies, in exchange for relinquishing their common-law workplace injury claims. As part of this regulatory scheme, the TWCA strictly regulates the prices that private insurers must pay health care providers for treating workers injured on the job. See TEX. LAB. CODE § 413.011; 28 TEX. ADMIN. CODE §§ 134.1, 134.203. The TWCA also prohibits providers from engaging in “balance-billing”—that is, they cannot collect any remaining balance from either the employer or employee after an insurer has reimbursed the provider less than the full amount for the services rendered. See Tex. Lab. Code § 413.042(a).

Air Evac contends that these price caps are preempted by the ADA. So it sued various Texas state officials, seeking a declaration that the ADA preempts the TWCA and its regulations, and an injunction barring enforcement of the price caps. Alternatively, Air Evac requested an injunction barring enforcement of the TWCA’s balance-billing prohibition.

Eight insurance companies joined the Texas officials as intervenors to defend Texas law. Together they moved to dismiss the case on various jurisdictional grounds. The district court granted the motion, but we subsequently reversed. See Air Evac EMS, Inc. v. Tex., Dep’t of Ins., Div. of Workers’ Comp., 851 F.3d 507, 510 (5th Cir. 2017).

On remand, the district court granted Air Evac’s motion for summary judgment on its claim that the Texas price caps were preempted by the ADA and not saved by the McCarran–Ferguson Act. See Air Evac EMS, Inc. v. Sullivan, 331 F. Supp. 3d 650, 667 (W.D. Tex. 2018). Consequently, it did not address Air Evac’s alternative balance-billing claim. Id. at 656 n.4. The district court enjoined enforcement of Texas Labor Code § 413.011 and Texas Administrative Code §§ 134.1 and 134.203 as applied to Air Evac. Id. at 664.

Both the State and the eight insurance companies appealed. Following oral argument in this case, the Supreme Court of Texas decided a similar case addressing the same issues. See Tex. Mut. Ins. Co. v. PHI Air Med., LLC, 610 S.W.3d 839 (Tex. 2020), cert. denied, ––– U.S. ––––, ––– S.Ct. ––––, ––– L.Ed.2d ––––, 2021 WL 1602647 (Apr. 26, 2021) (mem.). Contrary to the district court here and our sister courts of appeals that have examined these issues, the Texas Supreme Court held that the TWCA price caps on air ambulance providers are not preempted by federal law. But it did so over a thorough dissent supported by two members of the court. Id. at 865 (Green, J., joined by Hecht, C.J.). Seven members sided with the majority, but for differing reasons—six concluded that the ADA does not preempt the TWCA price caps, id. at 843, while four concluded that the TWCA price caps are saved by the McCarran–Ferguson Act, id. at 856.

We review summary judgment rulings de novo. IberiaBank v. Broussard, 907 F.3d 826, 842 (5th Cir. 2018).

II.

Congress enacted the ADA in 1978, introducing free-market principles to a heavily regulated and stagnating aviation industry. To streamline regulations, avoid a patchwork of state protocols, and “ensure that the States would not undo federal deregulation with regulation of their own,” Congress included an express preemption provision. Morales v. Trans World Airlines, Inc., 504 U.S. 374, 378, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992).

Under the express preemption provision, “[a] State[ ] ... may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier that may provide air transportation under this subpart.” 49 U.S.C. § 41713(b)(1). The Supreme Court has made clear that this express preemption provision “has a ‘broad scope’ ” and “an ‘expansive sweep,’ ” and that the “ordinary meaning of these words ... express a broad pre-emptive purpose.” Morales, 504 U.S. at 383–84, 112 S.Ct. 2031 (citations omitted).

Two of our sister circuits have unanimously held that the ADA preempts price controls on air ambulance services set by state workers’ compensation regulations. See Air Evac EMS, Inc. v. Cheatham, 910 F.3d 751 (4th Cir. 2018); EagleMed LLC v. Cox, 868 F.3d 893 (10th Cir. 2017). We agree.

As a threshold matter, Texas and the insurers urge that we adopt a presumption against preemption when it comes to issues of traditional state law such as workers’ compensation. We need not address that contention here, however, because we do not regard this as a close call—the text of the ADA plainly governs this case. See, e.g., Cheatham, 910 F.3d at 762 n.1 (“[W]e need not enter the great preemption presumption wars here because the text of the preemption provision ... governs the disposition of this case.”).

Under the ADA, a state may not enforce any law or regulation that is (1) “related to a price” of (2) an “air carrier” that (3) may provide air transportation “under this subpart.” 49 U.S.C. § 41713(b)(1). Each of those elements is satisfied here. We address each in turn.

A.

The TWCA regulations in question plainly involve the “price” of air transport services. The ADA defines “price” as “a rate, fare, or charge.” 49 U.S.C. § 40102(a)(39). We see no reason to depart from the ordinary meaning of these terms. The term “price” simply means the “sum of money ... asked or given for something” in return. AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 1038 (1979). See also id. at 1082 (defining “rate” as “a charge or payment calculated in relation to any particular sum or quantity”); id. at 476 (defining “fare” as a “transportation charge”); id. at 226 (defining “charge” as “to set or ask (a given amount) as a price”).

The TWCA regulations plainly govern “price”—namely, the price that Air Evac is allowed to charge Texas workers’ compensation insurers for air ambulance services.

For their part, Texas and the insurers contend that the term “price” applies only to competitive markets—and that “air ambulances do not operate in a market that would dictate the price or rate charged in the absence of government interference.” Under that view, any amount that is determined by a regulator for a particular good or service would not constitute a “price.” That would make terms like “price controls” an oxymoron. Yet the term is ubiquitous in our law. “Consistent usage, as reflected in numerous judicial opinions, can be an authoritative source of common parlance.” Frederking v. Cincinnati Ins. Co., 929 F.3d 195, 198 (5th Cir. 2019) (citing New Prime Inc. v. Oliveira, ––– U.S. ––––, 139 S. Ct. 532, 540, 202 L.Ed.2d 536 (2019)). See, e.g., Yakus v. United States, 321 U.S. 414, 418, 64 S.Ct. 660, 88 L.Ed. 834 (1944) (concerning the constitutionality of the Emergency Price Control Act of January 30, 1942, 56 Stat. 23); United States v. Uni Oil, Inc., 710 F.2d 1078, 1080 (5th Cir. 1983) (concerning federal “price controls” on oil). See also Address to the Nation Outlining a New Economic Policy: “The Challenge of Peace”, PUBLIC PAPERS OF PRESIDENT RICHARD M. NIXON 888 (Aug. 15, 1971) (“I am today ordering a freeze on all prices and wages throughout the United States for a period of 90 days. In addition, I call upon corporations to extend the wage-price freeze to all dividends.”); Exec. Order No. 11,615—Providing for Stabilization of Prices, Rents, Wages, and Salaries, 36 Fed. Reg. 15,727 (Aug. 15, 1971). In response, Texas and the insurers rely on Hodges v. Delta Airlines, Inc., 44 F.3d 334, 336 (5th Cir. 1995) (en banc). But in Hodges we construed the term “service,” not “price,” under the ADA.

In sum, the amount that TWCA rules would allow Air Evac to receive for its air ambulance services falls well within the term “price” under the ADA. Accordingly, those TWCA rules plainly “relate to” price.

As the Supreme Court has observed, the term “related to” under the ADA is broad and indeed “much more broadly worded” than other preemption provisions. Northwest, Inc. v. Ginsberg, 572 U.S. 273, 283, 134 S.Ct. 1422, 188 L.Ed.2d 538 (2014). See also Morales, 504 U.S. at 383–85, 112 S.Ct. 2031. A law “relate[s] to” price under the ADA so long as it has a “connection with or reference to” price or presents a “significant effect” on the price of air services. Morales, 504 U.S. at 384, 388, 112 S.Ct. 2031. See also Buck v. Am. Airlines, Inc., 476 F.3d 29, 34–35 (1st Cir. 2007) (“[T]he ADA preempts both laws that explicitly refer to an airline’s prices and those that have a significant effect upon prices.”); Travel All Over the World, Inc. v. Saudi Arabia, 73 F.3d 1423, 1433 (7th Cir. 1996) (declining to find preemption when plaintiffs’ tort claims neither “expressly refer to airline rates, routes, or services,” nor have a “ ‘forbidden significant [economic] effect’ on airline rates, routes, or services”) (alteration in original).

The TWCA regulations challenged here obviously have a “significant effect” on Air Evac’s prices—they effectively forbid Air Evac from recovering from workers’ compensation insurers the price that they would otherwise charge for air ambulance services. As we have previously noted, the “TWCA’s provisions effectively set a reimbursement rate” on air ambulance services by restricting the amount insurers pay them. Air Evac, 851 F.3d at 514. See also PHI Air Med., 610 S.W.3d at 866 (Green, J., dissenting) (“The TWCA’s reimbursement scheme is related to an air ambulance’s prices because it indirectly limits the amount than an air carrier may charge for its services.”). As the Fourth Circuit put it, “[i]f such actions involving an air carrier are not ‘related to price,’ it is unclear what meaning the phrase would have left.” Cheatham, 910 F.3d at 767–68.

B.

We likewise have little trouble concluding that Air Evac qualifies as an “air carrier.” The ADA defines an “air carrier” as “a citizen of the United States undertaking by any means, directly or indirectly, to provide air transportation.” 49 U.S.C. § 40102(a)(2). Air ambulances transporting patients to hospitals fall squarely within that definition. Courts are agreed on this point. See, e.g., Cheatham, 910 F.3d at 764; Bailey v. Rocky Mountain Holdings, LLC, 889 F.3d 1259, 1266–68 (11th Cir. 2018); Cox, 868 F.3d at 904; Stout v. Med-Trans Corp., 313 F. Supp. 3d 1289, 1294 (N.D. Fla. 2018); Schneberger v. Air Evac EMS, Inc., 2017 WL 1026012, *2 (W.D. Okla. 2017); Valley Med Flight, Inc. v. Dwelle, 171 F. Supp. 3d 930, 933–34 (D.N.D. 2016); Med-Trans. Corp. v. Benton, 581 F. Supp. 2d 721, 732 (E.D.N.C. 2008); PHI Air Med., 610 S.W.3d at 843. As are federal agencies. Air Evac holds a “Part 135” operating certificate from the Federal Aviation Administration (“FAA”) allowing it to “operate as an air carrier and conduct common carriage operations.” ROA.1235. The Department of Transportation (“DOT”) also recognizes Air Evac as an “air carrier” under “Part 298,” which grants it a license to operate as an air taxi. ROA.1239.

Nevertheless, Texas and the insurers insist that air ambulances are not “air carriers” under the ADA because Congress’s purpose in enacting the ADA was to cover only commercial, passenger airlines. But we are governed by the text of the statute. See, e.g., Morales, 504 U.S. at 383, 112 S.Ct. 2031 (“[W]e ... begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose.”) (quotations and citations omitted). Neither Texas nor the insurers have “presented a single textual reason to support the argument that the broad language of the [ADA]’s express preemption provision should not include air-ambulance services.” Cox, 868 F.3d at 904.

C.

Finally, air ambulances “provide air transportation under this subpart”—that is, under subpart II of the amended Federal Aviation Act. 49 U.S.C. § 41713(b)(1). Air ambulance companies hold a registration issued by the Secretary of Transportation and are subject to certain economic regulations under subpart II. 14 C.F.R. pt. 298. That is all that is required under the plain text of § 41713(b)(1).

The State and the insurers argue that Air Evac is not sufficiently subject to subpart II because the Secretary has exempted air ambulances from the general requirement to hold a certificate of public convenience and necessity. But § 41713(b)(1) simply requires air carriers to “provide air transportation” under subpart II—it does not require air carriers to be certified under subpart II. Other courts that have examined this issue have reached the same conclusion. See, e.g., Cheatham, 910 F.3d at 764–65 (agreeing “with Air Evac that the phrase ‘under this subpart’ includes all air carriers regulated by the Secretary of Transportation under subpart II, rather than those specifically certified under the subpart”); Hughes Air Corp. v. Pub. Utils. Comm’n, 644 F.2d 1334, 1338–39 (9th Cir. 1981) (holding that air carriers operating under an exemption still fell within the ADA’s preemption provision). We agree that air ambulance providers like Air Evac provide air transportation under subpart II.

* * *

Accordingly, we hold that the ADA expressly preempts TWCA reimbursement regulations as applied to air ambulance services.

III.

The TWCA reimbursement regulations are not saved by the McCarran–Ferguson Act. As relevant here, the McCarran–Ferguson Act shields from federal preemption those state laws that are “enacted ... for the purpose of regulating the business of insurance,” unless the federal statute “specifically relates to the business of insurance.” 15 U.S.C. § 1012(b). So the Act “precludes application of a federal statute in [the] face of state law ‘enacted ... for the purpose of regulating the business of insurance,’ if the federal measure does not ‘specifically relat[e] to the business of insurance,’ and ‘would invalidate, impair, or supersede’ the State’s law.” Humana Inc. v. Forsyth, 525 U.S. 299, 307, 119 S.Ct. 710, 142 L.Ed.2d 753 (1999) (alterations in original) (quoting U.S. Dep’t of Treasury v. Fabe, 508 U.S. 491, 501, 113 S.Ct. 2202, 124 L.Ed.2d 449 (1993)).

It is undisputed that the ADA does not “specifically relate to” the business of insurance. So the sole issue is whether the TWCA was enacted “for the purpose of regulating the business of insurance”—that is, if it has the “ ‘end, intention, or aim’ of adjusting, managing, or controlling the business of insurance.” Fabe, 508 U.S. at 505, 113 S.Ct. 2202 (quoting BLACK’S LAW DICTIONARY 1236, 1286 (6th ed. 1990)).

That requires determining whether the challenged provisions of the TWCA regulate “the relationship between the insurance company and the policyholder.” Id. at 501, 113 S.Ct. 2202 (quoting SEC v. Nat’l Sec., Inc., 393 U.S. 453, 460, 89 S.Ct. 564, 21 L.Ed.2d 668 (1969)). The McCarran–Ferguson Act “assure[s] that the activities of insurance companies in dealing with their policyholders would remain subject to state regulation.” Nat’l Sec., 393 U.S. at 460, 89 S.Ct. 564 (emphasis added).

The TWCA regulations at issue here deal with the relationship between insurers and providers—namely, the providers of air ambulance services—and not the relationship between insurers and their beneficiaries. Accordingly, the TWCA regulations are not shielded from federal preemption under the McCarran–Ferguson Act.

A.

In Group Life & Health Insurance Company v. Royal Drug Company, 440 U.S. 205, 99 S.Ct. 1067, 59 L.Ed.2d 261 (1979), the Supreme Court made clear that the “focus” of our inquiry is whether the insurance practice that is the subject of state regulation governs “the relationship between the insurance company and the policyholder.” Id. at 216, 99 S.Ct. 1067 (quoting Nat’l Sec., 393 U.S. at 460, 89 S.Ct. 564). That relationship is “the core of the ‘business of insurance.’ ” Id. at 215, 99 S.Ct. 1067. See also Fabe, 508 U.S. at 493, 113 S.Ct. 2202 (“We hold that the Ohio priority statute escapes preemption to the extent that it protects policyholders.”). In addition, the Court identified two other criteria: “whether the practice has the effect of transferring or spreading a policyholder’s risk,” and “whether the practice is limited to entities within the insurance industry.” Union Lab. Life Ins. Co. v. Pireno, 458 U.S. 119, 129, 102 S.Ct. 3002, 73 L.Ed.2d 647 (1982) (citing Royal Drug, 440 U.S. at 211–12, 215, 231, 99 S.Ct. 1067).

The TWCA regulations fail under all three criteria. See, e.g., PHI Air Med., 610 S.W.3d at 876–77 (Green, J., dissenting) (concluding that the TWCA regulations fail under all three factors identified in Royal Drug and Pireno).

To begin with, the TWCA regulations govern the relationship between insurers and providers, not insurers and insureds. So the regulations do not involve the “business of insurance” under the first criteria.

The Court reached precisely the same conclusion under similar facts in Royal Drug. It held that an insurer’s agreement to reimburse pharmacies for the cost of prescription drugs if the pharmacies offered the drugs to the insurer’s policyholders for $2 did not involve the “business of insurance.” Royal Drug, 440 U.S. at 212–14, 99 S.Ct. 1067. To conclude otherwise would “confuse the obligations of [the insurer] under its insurance policies”—which involved the insurer–insured relationship—“and the agreements between [the insurer] and the participating pharmacies, which serve only to minimize the costs [the insurer] incurs in fulfilling its underwriting obligations.” Id. at 213, 99 S.Ct. 1067. The defining feature of the insurer–insured relationship is the exchange of insurance premiums in order to obtain medical benefits. The particulars of any exchange between insurers and pharmacies are merely ancillary features that are not part of the “business of insurance.” And even though any cost savings might be passed on to policyholders in the form of reduced premiums, individual beneficiaries were “basically unconcerned” with any specific business arrangements between the insurer and the pharmacy, so long as the beneficiaries received the promised benefits. Id. at 214, 99 S.Ct. 1067. As the Court put it, McCarran–Ferguson “exempts the ‘business of insurance’ and not the ‘business of insurance companies.’ ” Id. at 217, 99 S.Ct. 1067. “It is next to impossible to assume that Congress could have thought that agreements (even by insurance companies) which provide for the purchase of goods and services from third parties at a set price are within the meaning of that phrase [i.e. ‘business of insurance’].” Id. at 230, 99 S.Ct. 1067.

By the same logic, the TWCA regulations challenged here likewise do not involve the relationship between the insurer and the insured. As in Royal Drug, the regulations help reduce costs to the workers’ compensation insurance carrier. But employers and employees are “basically unconcerned” with how the insurer structures its payments or how much any single service provider is paid. Id. at 214, 99 S.Ct. 1067. After all, the amount the insurer pays the provider is not a benefit to the insured. In sum, the focus of the TWCA regulations is on the relationship between insurer and provider, not insurer and insured.

The insurers here try to avoid Royal Drug by contending that the TWCA reimbursement cap is “critical to the spreading of risk” by limiting the overall liabilities of insurers. But that argument proves too much. If the insurers are right, then “almost every business decision” would be part of the “business of insurance,” because virtually every business decision has “some impact” on premium amounts and policy issuance. Id. at 216–17, 99 S.Ct. 1067. Yet this is exactly the type of downstream effect that the Supreme Court has placed outside the “business of insurance.” After all, “[s]uch cost-savings arrangements may well be sound business practice, and may well inure ultimately to the benefit of policyholders in the form of lower premiums, but they are not the ‘business of insurance.’ ” Id. at 214, 99 S.Ct. 1067.

The TWCA regulations also fail under the two remaining criteria. Reimbursement arrangements between insurers and providers do not meaningfully affect the allocation of risk between insurer and insured. The arrangement may help limit the insurer’s costs, but it does not substantially affect the transfer of risk from the insured to the insurer. Nor is the subject of the regulations “limited to entities within the insurance industry.” Pireno, 458 U.S. at 129, 102 S.Ct. 3002. Air Evac is an air ambulance company, not an insurance company.

B.

For their part, Texas and the insurers contend that the three criteria set forth in Royal Drug and Pireno apply in cases involving the application of certain enumerated federal antitrust statutes, and have only limited applicability to other federal laws like the ADA. See 15 U.S.C. § 1012(b).

But nothing in the text of the McCarran–Ferguson Act suggests that we should give the term “business of insurance” a different meaning when it comes to applying the Act to other federal statutes like the ADA. “[W]e ‘cannot imagine that “business of insurance” could have two different meanings in the same statutory subsection.’ ” Bailey, 889 F.3d at 1273 n.30 (quoting Blackfeet Nat’l Bank v. Nelson, 171 F.3d 1237, 1246 n.13 (11th Cir. 1999)).

Accordingly, our court has applied the Royal Drug–Pireno framework to federal statutes other than the enumerated antitrust provisions. See Am. Bankers Ins. Co. of Fla. v. Inman, 436 F.3d 490, 493–94 (5th Cir. 2006); Munich Am. Reinsurance Co. v. Crawford, 141 F.3d 585, 590–91 (5th Cir. 1998).

* * *

We hold that the TWCA regulations concerning the reimbursement of air ambulance providers like Air Evac are preempted by the ADA, and are not saved by the McCarran–Ferguson Act. Accordingly, we affirm.

United States Court of Appeals, Fifth Circuit.

SENTINEL INSURANCE COMPANY, LIMITED, Plaintiff-Appellant

v.

Vilma S. ORTIZ; Johnathan Morales; Bryan Y. Ortiz, Defendants-Appellees

No. 19-20605

|

FILED April 30, 2020

Appeal from the United States District Court for the Southern District of Texas, USDC No. 4:19-CV-380

Attorneys & Firms

David L. Brenner, Belinda May Arambula, Burns, Anderson, Jury & Brenner, L.L.P., Austin, TX, for Plaintiff-Appellant

Maitreya Tomlinson, Esq., The Tomlinson Firm, P.L.L.C., Austin, TX, Michael B. Jolly, Houston, TX, Michael Sprain, Houston, TX, for Defendants-Appellees

Before SMITH, GRAVES, and HO, Circuit Judges.

Opinion

PER CURIAM:^*

Sentinel Insurance Company appeals the district court’s grant of summary judgment in favor of the beneficiaries of Mario Morales. Because the district court did not err, we AFFIRM.

FACTS AND PROCEDURAL HISTORY

On December 20, 2016, Mario Morales was struck by an industrial pipe and sustained fatal injuries while working for Womble Company, Inc. Sentinel provided the workers’ compensation and employer liability insurance coverage for Womble. Vilma Ortiz, Johnathan Morales and Bryan Ortiz are Morales’ beneficiaries. Following Morales’ death, there was a dispute between his beneficiaries and Sentinel regarding whether Morales was an employee or an independent contractor for purposes of the Womble policy. The Texas Department of Insurance Division of Workers’ Compensation (DWC) determined that Morales was an independent contractor. The DWC also determined that, because Morales was an independent contractor and not an employee, his beneficiaries were not entitled to death benefits under the Texas Workers’ Compensation Act.

Sentinel filed for judicial review, seeking a declaratory judgment that Morales was an employee. The beneficiaries moved to dismiss for lack of statutory standing. The district court converted the motion to dismiss into a motion for summary judgment and granted it on May 16, 2019. Sentinel subsequently filed this appeal.

STANDARD OF REVIEW

This Court reviews de novo a district court’s grant of summary judgment, viewing all evidence in the light most favorable to the nonmoving party and drawing all reasonable inferences in that party’s favor. Dediol v. Best Chevrolet, Inc., 655 F.3d 435, 439 (5th Cir. 2011). Summary judgment is proper when the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A genuine issue of material fact exists if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Crawford v. Formosa Plastics Corp., 234 F.3d 899, 902 (5th Cir. 2000) (quoting *865 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L.Ed.2d 202 (1986)).

We review issues of standing, which is a jurisdictional prerequisite, de novo. See Crane v. Johnson, 783 F.3d 244, 250 (5th Cir. 2015); see also N.H. Ins. Co. v. Dominguez, 661 F. App’x 267, 269-70 (5th Cir. 2016).

DISCUSSION

Sentinel asserts on appeal that it is aggrieved and has standing to seek judicial review of an adverse workers’ compensation administrative decision in light of the conclusion that it is not liable for workers’ compensation benefits. Specifically, and despite not being responsible for paying the $350,000 in death benefits, Sentinel asserts that it is aggrieved because it may potentially have to reimburse some $36,709.27 in workers’ compensation premiums to Womble at some point in the future.

The beneficiaries counter that Sentinel premises its aggrievement arguments on a non-existent injury or loss. We agree.

Under Texas law, a party may seek judicial review of an administrative remedy if it is “aggrieved” by the final decision. See Tex. Lab. Code Ann. § 410.251. As the district court stated, Texas courts have “prescribe[d] a narrow interpretation” of aggrieved. See Dominguez, 661 F. App’x at 269 (citing Ins. Co. of the State of Penn. v. Orosco, 170 S.W.3d 129, 132–33 (Tex. App.—San Antonio 2005); Just Energy Tex. I Corp. v. Tex. Workforce Comm’n, 472 S.W.3d 437, 441–43 (Tex. App.—Dallas 2015); Tex. Mun. League Intergovernmental Risk Pool v. Burns, 209 S.W.3d 806, 814–15 (Tex. App.—Fort Worth 2006), overruled on other grounds by Tex. Mut. Ins. Co. v. Chicas, 593 S.W.3d 284 (Tex. 2019); In re Tex. Mut. Ins. Co., 331 S.W.3d 70, 77 (Tex. App.—Eastland 2010); Covenant Health Sys. v. Dean Foods Co., No. 07-09-0348-CV, 2011 WL 3717056 at *4 (Tex. App.—Amarillo 2011); see also In re Coho Energy Inc., 395 F.3d 198, 202 (5th Cir. 2004)).

Further, Texas courts have said that “a party is aggrieved by a final decision of the appeals panel if the injury or loss resulting from the final decision is actual and immediate; a possible future injury or loss as a consequence of the panel decision is not sufficient to show an aggrievement.” Orosco, 170 S.W.3d at 133; see also City of San Antonio v. Diehl, 387 S.W.3d 777, 782 (Tex. App.—El Paso 2012) (party not aggrieved where DWC “decision did not require Diehl to pay any money nor did it authorize the City to recoup funds”).

As the district court found in its thorough order, the DWC’s decision addresses only the employment relationship between Womble and Morales. Nothing in the DWC decision requires Sentinel to pay any money or authorizes Womble to recoup any money. Moreover, Sentinel acknowledges that it has not refunded any premiums nor paid any benefits, and cannot establish any actual or immediate injury. Additionally, although Sentinel asserts that the policy will require a refund in the future, it cannot establish that any such possible future injury would be “resulting from the final decision.”

CONCLUSION

For the reasons set out previously herein and by the district court, we conclude that Sentinel failed to establish that it has statutory standing to seek judicial review of the DWC’s decision under Texas law. Thus, the district court did not err in granting summary judgment on the basis of standing. Accordingly, we AFFIRM.

United States Court of Appeals, Fifth Circuit.

Jane MILLIGAN, individually and as Representative of the Estate of Fritz Pierre Poux, Sr., Plaintiff - Appellant

v.

HOME DEPOT USA, INCORPORATED, Defendant - Appellee

No. 19-20670

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Summary Calendar

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FILED April 15, 2020

Attorneys & Firms

Misty Annette Hataway-Cone’, Cone, P.L.L.C., Houston, TX, Joshua Robert Leske, Husain Law & Associates, P.C., Houston, TX, for Plaintiff - Appellant

Jason Ryan Bernhardt, Katie Banks, Winstead, P.C., Houston, TX, for Defendant - Appellee

Before WIENER, HAYNES, and COSTA, Circuit Judges.

Opinion

PER CURIAM:^*

*218 Jane Milligan appeals the district court’s grant of summary judgment for Home Depot U.S.A., Inc. on her common-law negligence claim. For the reasons below, we AFFIRM.

I. Background

Fritz Poux worked as a Home Depot employee and had a history of heart health issues. In 2015, while working at Home Depot’s store in Porter, Texas, Poux submitted a medical accommodations request form completed by his doctor to Home Depot. His doctor noted that due to Poux’s heart issues, Poux should not “work outside in heat” and should “not be required to lift, push or pull over 20 lbs.” His doctor also specifically recommended that Poux not work as a lumber department supervisor, Poux’s position at the time. Poux thereafter worked as a sales associate.

In 2016, Poux suffered a cardiac event. His doctor again noted that it would be in Poux’s “best interest” to do work that did “not require heavy lifting over 30 lbs or exposure to extreme heat.” Poux returned to work about two months after his cardiac event. When he returned, he was transferred to Home Depot’s store in Humble, Texas, and put to work in the lumber department as a sales associate. Two weeks into working at the Humble location, Poux suffered a stroke. He was found in the back part of the store, “[n]ot too far” from two wood saws. According to an employee accident claim worksheet completed after the event, Poux was “cutting lumber” at the time of the incident. Due to complications from the stroke, Poux died in 2018.

Poux’s wife, Milligan, sued Home Depot in Texas state court, raising a claim of negligence under the non-subscriber portion of the Texas Worker’s Compensation Act. Home Depot timely removed the case to federal district court on diversity grounds.¹ Home Depot then moved for summary judgment, arguing that it owed no duty to accommodate Poux’s medical restrictions, that it did not breach any duty owed to Poux, and that its alleged failure to accommodate Poux’s restrictions was not the proximate cause of Poux’s injuries. The district court granted Home Depot’s motion for summary judgment, holding that Milligan failed to meet her burden of showing that Home Depot had a duty to accommodate Poux’s health restrictions or raising a material fact dispute that Home Depot breached its duty to provide a reasonably safe work environment. Milligan timely appealed.

*219 II. Standard of Review

We review a district court’s grant of summary judgment de novo and apply the same standard as the district court. Howell v. Town of Ball, 827 F.3d 515, 521 (5th Cir. 2016). In so doing, “[w]e view all facts and evidence in the light most favorable to the non-moving party.” Ferraro v. Liberty Mut. Fire Ins. Co., 796 F.3d 529, 531 (5th Cir. 2015). Summary judgment is proper when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). “We may affirm for reasons other than those relied upon by the district court.” LLEH, Inc. v. Wichita Cty., 289 F.3d 358, 364 (5th Cir. 2002) (brackets omitted).

III. Discussion

Because Home Depot is a worker’s compensation non-subscriber, Milligan must establish negligence by Home Depot to recover. Werner v. Colwell, 909 S.W.2d 866, 868 (Tex. 1995). To establish negligence, a plaintiff must prove that (1) the defendant had a legal duty, (2) the defendant breached that duty, and (3) damages proximately resulted from that breach. Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006) (per curiam).

Milligan argues that “Home Depot had a duty to exercise ordinary care and abide by Poux’s prior health care accommodations which it had been aware of.” Texas law does impose a duty on employers to “use ordinary care in providing a safe workplace.” Elwood, 197 S.W.3d at 794. But Home Depot argues that this duty does not require employers to accommodate employees’ work restrictions. See generally Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 213 (Tex. 2015) (holding that, despite rules limiting an employer’s use of defenses based upon employee conduct, an employer owes no duty to an employee who was aware of the dangers associated with their job duties).

Assuming arguendo that the duty to provide a safe workplace requires employers to accommodate employees’ health requirements,² we hold that Milligan failed to raise a material fact dispute as to whether Home Depot failed to accommodate Poux’s work restrictions. Milligan argues that Home Depot did not adhere to Poux’s work restrictions because it put Poux to work in the lumber department, which she contends is Home Depot’s most physically strenuous department. While the lumber department does require some strenuous work, Milligan provided no evidence suggesting that Poux was required to do such work. The lumber department supervisor testified that the strenuous aspects of the job are lifting bags of concrete and loading wood into the back of customers’ trucks. But Poux was indoors cutting lumber with a wood saw at the time of his stroke.³ Milligan provided no evidence that cutting lumber with a wood saw contradicted Poux’s doctor’s recommendation that Poux do no work that required using more than twenty to thirty pounds of force.

Even if cutting lumber with a wood saw was outside of Poux’s work restriction, he did not request assistance. Poux’s coworker testified that employees have communication devices that they can use to call for help and that Poux did not use his device for help the day of the incident. An *220 employer is not liable for injury that “results from the actions of [an] employee who voluntarily proceeds to do the work without assistance.” Adams v. Reynolds Tile & Flooring, Inc., 120 S.W.3d 417, 421 (Tex. App.—Houston [14th Dist.] 2003, no pet.).

Milligan also suggests that Poux’s doctor requested that he no longer work in the lumber department. However, no evidence supports that suggestion. The doctor only recommended that Poux no longer work as a supervisor in the lumber department, and Poux was working as a sales associate, not a supervisor. Thus, there is no evidence that Home Depot failed to accommodate Poux’s work restrictions.

Lastly, Milligan claims that Home Depot’s refusal to adhere to Poux’s work restrictions is evident from the employee accident claim worksheet, which noted that “job restrictions” could prevent a reoccurrence of Poux’s accident. But the worksheet did not identify what types of job restrictions could prevent a reoccurrence, nor did it state that Poux’s work restrictions were not being followed. The record does not provide any evidence that Poux was working outside of his doctor’s restrictions. Thus, even if Home Depot had a duty to accommodate Poux’s work restrictions, Poux failed to raise a fact issue supporting the claim that Home Depot breached that duty. AFFIRMED.

United States Court of Appeals, Fifth Circuit.

Kenneth HENRY, Plaintiff - Appellant

v.

SPECTRUM, L.L.C., formerly doing business as Time Warner Cable Texas, L.L.C.; Charter Communications, L.L.C., formerly doing business as Time Warner Cable Texas, L.L.C., Defendants - Appellees

No. 19-10452

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Summary Calendar

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FILED November 21, 2019

*274 Appeal from the United States District Court for the Northern District of Texas, USDC 3:18-CV-1086

Attorneys & Firms

John Edward Wall, Jr., Law Offices of John E. Wall, Jr., Dallas, TX, for Plaintiff-Appellant

Christine Elaine Reinhard, Delilah Lorenz Evans, Esq., Schmoyer Reinhard, L.L.P., San Antonio, TX, Marcia Nelson Jackson, Esq., Wick Phillips Gould & Martin, L.L.P., Dallas, TX, for Defendants-Appellees

Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.

Opinion

PER CURIAM:^*

The plaintiff asserts that when he was fired from his job, his employer had engaged in unlawful discrimination and retaliation under the Americans with Disabilities Act and state law. The district court granted summary judgment in favor of the defendants. We AFFIRM the summary judgment and DISMISS certain parts of the appeal as explained below.

FACTUAL BACKGROUND

From 1992 to 2015, Kenneth Henry worked as a maintenance technician for Time Warner Cable Texas, L.L.C. In May 2015, while driving a company vehicle, he ran a red light. The accident severely injured multiple people. Time Warner has a committee that reviews employee accidents. The committee determined that the severity and avoidable nature of the accident warranted terminating Henry’s employment. As a result, Henry was fired. Henry argues that the accident was due to a diabetic emergency. Consequently, he argues his firing was based on his diabetes and was also in retaliation for filing a workers’ compensation claim.

DISCUSSION

In addition to appealing the final judgment for the defendants, Henry seeks to appeal the district court’s denial of his motion to compel as well as that court’s partial judgment on the pleadings, in which the district court dismissed two of Henry’s claims. The defendants doubt our *275 jurisdiction to review those two earlier rulings.

In analyzing our appellate jurisdiction, we start with the requirement that an appellant designate the orders being appealed. FED. R. APP. P. 3(c)(1)(B). “Where the appellant notices the appeal of a specified judgment only or a part thereof, however, this court has no jurisdiction to review other judgments or issues which are not expressly referred to and which are not impliedly intended for appeal.” C. A. May Marine Supply Co. v. Brunswick Corp., 649 F.2d 1049, 1056 (5th Cir. 1981).

We will have jurisdiction, though, if the notice of appeal refers to an order that was “predicated” on previous orders, and “the several orders and the issues they deal with are for the most part inextricably interrelated.” Cates v. Int’l Tel. & Tel. Corp., 756 F.2d 1161, 1173 n.18 (5th Cir. 1985). In Cates, the defendants convinced the district court to dismiss two of the plaintiffs. Id. at 1168. The court later denied the remaining plaintiff’s motion to vacate the earlier ruling, prohibiting the mention of those dismissed plaintiffs in the next amended complaint. Id. at 1170. Final judgment came several months later. The court dismissed based on the amended complaint’s failure to state a claim; the amended allegations directly related to the actions of the previously dismissed plaintiffs. Id. at 1172. The final order in the case thus was “expressly ... predicated” on the previous two orders. Id. at 1173 n.18.

Henry timely filed his notice of appeal after final judgment. He stated that he was appealing the “Memorandum Opinion and Order granting summary judgment and the judgment in favor of defendants ... entered in this action on March 19, 2019.” Because the notice of appeal specifies only the order of summary judgment, we have jurisdiction to review the other two orders only if they are sufficiently related. The order denying the motion to compel was not factually related to the grant of summary judgment. The summary judgment order also disposed of different claims than the order granting judgment on the pleadings. Because summary judgment was not dependent on the previous two orders, we conclude the orders were not “inextricably interrelated.” Cates, 756 F.2d at 1173 n.18. Accordingly, we have no jurisdiction to review those earlier orders.

The defendants do not argue there is any jurisdictional defect for review of the district court’s determination that the two remaining claims were without merit: discrimination under Section 102(a) of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12112(a), and for retaliation in violation of the state’s workers’ compensation law. We review a district court’s grant of summary judgment de novo. United States v. Lawrence, 276 F.3d 193, 195 (5th Cir. 2001). Summary judgment is proper if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a).

In support of reversal on the ADA discrimination claim, Henry asserts he has presented direct evidence of discrimination. “If the plaintiff produces direct evidence that discriminatory animus played a role in the employer’s adverse employment decision, the burden of persuasion shifts to the defendant who must prove that it would have taken the same action despite any discriminatory animus.” Nall v. BNSF Ry. Co., 917 F.3d 335, 340 (5th Cir. 2019). Henry, though, had no direct evidence of discrimination. Rather, his evidence requires chains of inferences and assumptions to reach the conclusion that Time Warner acted with discriminatory animus. See *276 Rodriguez v. Eli Lilly & Co., 820 F.3d 759, 764–65 (5th Cir. 2016). Thus, he must rely on circumstantial evidence and the McDonnell Douglas burden-shifting framework. Id.

The district court held that Henry established a prima facie case of discrimination through evidence of his disability and his being qualified for his position. The court nonetheless held that the claim failed because Henry did not show that Time Warner’s stated reason for his firing was pretextual.

Henry argues that inconsistencies and his employer’s failure to follow its own protocol show pretext. Henry does identify minor alleged inconsistencies about how he was fired, but he shows no inconsistencies about why he was fired. To succeed, Henry needed to create a fact issue about Time Warner’s motive in firing him. See Rodriguez, 820 F.3d at 765–66. The company’s safety policy explicitly allowed for immediate termination for severe accidents. The undisputed facts indicate that is what happened here.

We need not decide whether Time Warner’s accident review committee reached the best conclusion in determining the accident was severe and avoidable. Instead, we review whether the employer acted in good faith in relying on the investigation, or whether the investigation’s conclusion was used “as pretext for an otherwise discriminatory dismissal.” Waggoner v. City of Garland, 987 F.2d 1160, 1165 (5th Cir. 1993) (ADEA). In a mostly conclusory fashion, Henry asserts that the review committee was wrong in determining that the accident was avoidable. He also cites to his own declaration and a friend’s declaration to support the fact that he was experiencing diabetic symptoms on the date of the accident. Regardless of whether this evidence creates a question of fact as to whether the accident was avoidable, it does not create a question of fact as to whether Time Warner relied reasonably and in good faith on the review committee’s conclusion. Thus, nothing in the record supports that the stated reasons for Henry’s firing were pretextual.

The only meaningful question here is the legal relevance of the possibility that the serious accident was the result of Henry’s diabetes. A somewhat related question was posed in an appeal in which we upheld the termination of the employee when a university “dismissed him because of his work performance and lack of collegiality.” Newberry v. E. Tex. State Univ., 161 F.3d 276, 279 (5th Cir. 1998). The discharged employee presented evidence at trial that he suffered from obsessive-compulsive personality disorder and that any work-performance deficiencies were the result of that condition. Id. at 278. Jurors found that the former employee had no disability, and the district court entered judgment upholding the finding. Id. at 279. On appeal, we held that even when an employer believes that certain conduct may be symptomatic of a disability, termination is still permissible on the “basis of the conduct itself, as long as the collateral assessment of disability plays no role in the decision to dismiss.” Id. at 279–80.

Applying that analysis here, we conclude that Henry had to introduce evidence to create a genuine dispute of material fact that he was fired for reasons related to a qualifying disability. His diabetes was not shown be a factor in the termination regardless of whether it was a factor in causing the accident. Therefore, whether the accident was caused in whole or in part by Henry’s diabetes is not legally relevant to the question of pretext.

Henry raises additional arguments that were not briefed to the district court in support of his discrimination claim. Generally, we do not consider arguments raised *277 for the first time on appeal. See AG Acceptance Corp. v. Veigel, 564 F.3d 695, 701 (5th Cir. 2009). We do not consider those raised by Henry.

The district court also granted summary judgment dismissing Henry’s workers’ compensation retaliation claim under Section 451.001 of the Texas Labor Code. To establish a case of retaliation, a plaintiff must show that he made a workers’ compensation claim that caused him to experience an adverse employment action. Haggar Clothing Co. v. Hernandez, 164 S.W.3d 386, 388 (Tex. 2005). The district court held that Henry failed to establish causation. We agree that there is nothing in the record to support that Time Warner’s stated reason for firing Henry was pretextual and that he would have been treated differently but for his filing for workers’ compensation.

AFFIRMED.

United States Court of Appeals, Fifth Circuit.

EXXON MOBIL CORPORATION, Plaintiff-Appellee,

v.

STARR INDEMNITY & LIABILITY INSURANCE COMPANY; National Union Insurance Company of Pittsburgh, Pennsylvania; The Insurance Company of the State of Pennsylvania, Defendants-Appellants.

No. 16-20821

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Filed March 26, 2018

Appeals from the United States District Court for the Southern District of Texas, USDC No. 4:15-CV-1555

Attorneys & Firms

Michael Patrick Morris, Danny L. Van Winkle, Counsel, Tekell, Book, Allen & Morris, L.L.P., Houston, TX, William Feldman, Attorney, Haynes & Boone, L.L.P., New York, NY, Lynne Liberato, Haynes & Boone, L.L.P., Houston, TX, Ernest Martin, Jr., Micah Ethan Skidmore, Haynes & Boone, L.L.P., Dallas, TX, for Plaintiff-Appellee

Harold Kemler Watson, Chaffe McCall, L.L.P., Houston, TX, for Defendant-Appellant Starr Indemnity & Liability Insurance Company

Darin Lee Brooks, John Gregory George, Jr., Esq., Kristen W. Kelly, Brian Edward Waters, Gray Reed & McGraw, L.L.P., Houston, TX, for Defendants-Appellants National Union Insurance Company of Pittsburgh, Pennsylvania, Insurance Company of the State of Pennsylvania

Before SMITH, OWEN, and HIGGINSON, Circuit Judges.

Opinion

PER CURIAM:^*

*350 Two employees of an Exxon Mobil Corp. (Exxon) contractor were injured while working at an Exxon refinery. After one of the employees filed suit in Texas state court (Roberts), Exxon impleaded The Insurance Company of the State of Pennsylvania (ICSOP), which insured Exxon’s contractor against workers’ compensation claims, and sought a declaratory judgment that ICSOP had contractually waived its subrogation rights. ICSOP counterclaimed, seeking declaratory and monetary relief for claims related to its subrogation rights. While this suit was pending, Exxon filed another suit in Texas state court (Starr), asserting the same claim against ICSOP as well as claims against Starr Indemnity & Liability Insurance Company (Starr Indemnity), and National Union Insurance Company of Pittsburgh, Pennsylvania (National Union) (collectively, Insurers). The insurance companies attempted to remove Starr to federal court, but because Exxon’s claim against ICSOP arose under Texas workers’ compensation law, 28 U.S.C. § 1445(c) prohibited removal and the federal district court remanded.

The Texas state trial court in Roberts then issued a judgment in favor of Exxon on its impleader claim against ICSOP, after which ICSOP again sought to remove Starr to federal district court. The district court denied Exxon’s subsequent motion to remand, holding that the res judicata effect of the state trial court judgment in Roberts “dissolved” Exxon’s non-removable claim against ICSOP. Approximately one year after this second removal, however, a Texas appellate court reversed the state court’s judgment in Roberts and remanded for further proceedings.¹ The district court reasoned that the state appellate judgment “revived” the non-removable claim and divested the district court of subject matter jurisdiction, and therefore the district court remanded the case to state court.

The Insurers now appeal that remand order. Exxon moves to dismiss for lack of appellate jurisdiction. For the following reasons, we conclude that we lack jurisdiction over the appeal and therefore grant Exxon’s motion to dismiss.

I

The Insurers have the burden of establishing this court’s jurisdiction over this appeal.² Generally, under 28 U.S.C. § 1447(d), “[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise.”³ Appellate review is available only if the district court “clearly and affirmatively” invokes a ground for remand not specified in 28 U.S.C. § 1447(c).⁴ Under § 1447(c), *351 remand is required for lack of subject matter jurisdiction and permitted if the plaintiff makes “[a] motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction ... within 30 days after the filing of the notice of removal.”⁵ Section 1447(d)’s reviewability bar therefore does not apply to cases in which the plaintiff moved for remand, based on a procedural defect in removal, more than thirty days after the filing of the notice of removal.⁶ Under 28 U.S.C. § 1445(c), claims arising under the forum state’s workers’ compensation laws “may not be removed to any district court of the United States,”⁷ but “[a] statutory restriction against removal like the one in § 1445(c) is a defect in removal procedure under § 1447(c),” not a jurisdictional defect.⁸ This court must constrain its threshold jurisdictional review to a determination of “what the district court perceived it was doing, as ‘no matter how erroneous,’ a remand order based on a § 1447(c) ground precludes review on appeal.”⁹

II

The Insurers argue that the district court, despite stating that it “must remand” for lack of subject matter jurisdiction, actually based its remand on the revival of the claim asserted against ICSOP arising under Texas’s workers’ compensation laws. They assert, correctly, that the presence of the revived claim is a procedural defect in removal outside the scope of § 1447(c) because Exxon did not raise it in a remand motion within thirty days of the removal.¹⁰ The Insurers, however, cannot evade the reviewability bar of § 1447(d) by establishing this defect.

In its order, the district court repeatedly invoked its perceived lack of subject matter jurisdiction as the basis for the remand. It is clear that the district court believed the presence of a claim arising under Texas’s workers’ compensation laws deprived it of jurisdiction. Indeed, each passage from the district court’s order to which the Insurers point as a clear and affirmative statement of a non-§ 1447(c) ground in fact expressly invokes that court’s perceived lack of subject matter jurisdiction. This belief, however erroneous, “sufficiently cloaks the remand order in the § 1447(c) absolute immunity from review” and ends the inquiry.¹¹

* * *

For the foregoing reasons, the appeal is DISMISSED for want of jurisdiction.

United States Court of Appeals, Fifth Circuit.

Trent S. GRIFFIN, Sr., Plaintiff-Appellant

v.

AMERICAN ZURICH INSURANCE COMPANY; Walgreens Company; Greg Wasson, Chief Executive Officer; Jim Reilly, Sr., Director Human Resources; Chester Stevens, District Manager; Januari Lewis, Pharmacy Supervisor; Jerry Padilla, Pharmacy Supervisor; Felicia Felton, Store Manager; Jerline Washington, Pharmacy Manager; Vanessa Strong, Store Manager; Miranda Martinez, Pharmacy Technician; Daravanh Khanmanivanh, Pharmacy Technician; Texas Department of Insurance, Division of Workers’ Compensation; Ryan Brannan, Texas Workers’ Compensation Commissioner; Rod Bordelon, in his individual capacity; Greg Abbott, Governor, State of Texas and in his individual capacity; Rick Perry, in his individual capacity; Ken Paxton, Attorney General; Henry Whitman, Jr., Commissioner C.P.S.; Stephen McKenna, Child Support Officer; Mark Iverson, Authorized Agent; Wells Fargo Bank; Andrew Cole, Designated Doctor; Nicole Bush, Market Scheduler; Valerie Rivera, Ombudsman; Thomas Hight, Hearing Officer; Texas Department of Family and Protective Services, Defendants-Appellees

No. 16-10695

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Filed June 6, 2017

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REVISED June 8, 2017

*794 Appeal from the United States District Court for the Northern District of Texas, USDC No. 3:14-CV-2470

Attorneys & Firms

Trent S. Griffin, Sr., Pro Se

Blair Dancy, Cain & Skarnulis, P.L.L.C., Austin, TX, Laura Judith Grabouski, Buchanan Grabouski, L.L.P., Austin, TX, for Defendant-Appellee American Zurich Insurance Company

Buena Vista Lyons, Esq., FordHarrison, L.L.P., Dallas, TX, for Defendants-Appellees Walgreens Company, Greg Wasson, Jim Reilly, Sr., Chester Stevens, Januari Lewis, Jerry Padilla, Felicia Felton, Jerline Washington, Vanessa Strong, Miranda Martinez, Daravanh Khanmanivanh, Nicole Bush

Eric Alan Hudson, Assistant Attorney General, Office of the Attorney General for the State of Texas, Austin, TX, for Defendants-Appellees Texas Department of Insurance, Rod Bordelon, Rick Perry, Greg Abbott, Stephen McKenna, Mark Iverson, Andrew Cole, Thomas Hight, Texas Department of Family and Protective Services, Ken Paxton, Ryan Brannan, Henry Whitman, Jr.

*795 Shayne Daniel Moses, Alyson Cori Halpern, David A. Palmer, Esq., Moses, Palmer & Howell, L.L.P., Fort Worth, TX, for Defendant-Appellee Wells Fargo Bank

Before REAVLEY, HAYNES and COSTA, Circuit Judges.

Opinion

PER CURIAM:^*

Pro se Plaintiff Trent S. Griffin appeals the district court’s dismissal of his claims against various defendants stemming from an alleged conspiracy which resulted in, inter alia, a foreclosure on his home and the garnishment of his veteran’s benefits. We AFFIRM.

I.

Plaintiff Trent S. Griffin, proceeding pro se, initially filed suit to assert claims of violations of his rights, inter alia, under: the First, Fourth, Fifth, Thirteenth, and Fourteenth Amendment rights; Title VII of the Civil Rights Act of 1964; the Americans with Disabilities Act (“ADA”); the Age Discrimination in Employment Act; and 38 U.S.C. § 5301. These claims are made against four groups of defendants: (1) American Zurich Insurance Company; (2) Walgreens Company and various employees (collectively, “Walgreens”);¹ (3) Wells Fargo Bank; and (4) the Texas Department of Insurance, the Texas Department of Family and Protective Services, and various employees of the state of Texas (“State Defendants”).² Griffin’s claims appear to stem from various events, including: (a) a determination by American Zurich concerning an injury suffered during his employment at Walgreens, (b) alleged discrimination, retaliation, harassment, and a hostile work environment during his employment at Walgreens, (c) Wells Fargo’s foreclosure on his house and garnishment of his veteran’s benefits, and (d) some sort of dispute over custody and child care payments ordered by the State Defendants.

Griffin’s complaint generated a flurry of activity, with the defendants filing motions to dismiss, Griffin filing out-of-time amended complaints and motions for summary judgment, and the defendants filing motions to strike in response to these amended complaints. The district court eventually denied most of these motions and re-set the litigation process by ordering Griffin to file a new amended complaint. Once Griffin filed his new amended complaint, American Zurich, Walgreens, and the State Defendants filed a motion to dismiss the amended complaint, while Wells Fargo filed an answer and then subsequently filed a motion to dismiss. The district court individually granted all four motions to dismiss and entered final judgment in favor of each of the groups of defendants. Griffin filed motions for new trials against each of the groups of defendants, which were subsequently denied in an electronic order. Griffin now appeals.

II.

We review de novo a district court’s dismissal for either lack of subject matter jurisdiction or failure to state a claim. *796 Ctr. for Biological Diversity, Inc. v. BP Am. Prod. Co., 704 F.3d 413, 421 (5th Cir. 2013). When evaluating a motion to dismiss for failure to state a claim, we accept all well-pleaded facts as true and view those facts in the light most favorable to the plaintiff. Priester v. JP Morgan Chase Bank, N.A., 708 F.3d 667, 672 (5th Cir. 2013). We will deny such a motion if the complaint contains sufficient factual matter which, if accepted as true, states a plausible claim for relief. Id. (citing Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). As for a motion to dismiss for lack of subject matter jurisdiction, a district court can resolve factual disputes “to the extent necessary to determine jurisdiction” and, based upon such facts, we then determine whether the district court correctly applied the law. See Smith v. Reg’l Transit Auth., 756 F.3d 340, 346 (5th Cir. 2014).

Griffin’s appeal also challenges the manner in which the district court handled the various motions filed in his case. The management of a district court’s docket is reviewed for an abuse of discretion. Fin. Acquisition Partners LP v. Blackwell, 440 F.3d 278, 291 (5th Cir. 2006).

III.

Griffin’s sprawling, ninety-seven page appeal attempts to revisit most of the decisions of the district court in dismissing his claims. Our review, however, finds that the order appealed must be affirmed for substantially the same reasons given by the district court. We briefly address the discernable arguments made by Griffin both as to the district court’s general handling of his case and to the specific claims against each group of defendants.

A. The District Court’s Management of Griffin’s Case

Griffin lodges two types of arguments against the district court’s management of his claims. First, Griffin repeatedly argues that, as a pro se plaintiff, the district court was under an obligation to liberally construe his complaints and failed to do so. Griffin is correct on the law, but we conclude that the district court here liberally construed Griffin’s amended complaint. “We hold pro se plaintiffs to a more lenient standard than lawyers when analyzing complaints, but pro se plaintiffs must still plead factual allegations that raise the right to relief above the speculative level.” Chhim v. Univ. of Tex. at Austin, 836 F.3d 467, 469 (5th Cir. 2016) (per curiam), cert. denied, ––– U.S. ––––, 137 S.Ct. 1339, 197 L.Ed.2d 529 (2017). Griffin’s amended complaint, even under a liberal construction, failed to raise anything more than speculative claims. The district court was correct to grant dismissal even granting a liberal interpretation of Griffin’s amended complaint.³

Griffin also argues that the district court abused its discretion in managing his case. Griffin alleges that errors by the district court include: not allowing Griffin to initially amend his complaint, not requiring defendants to respond to his motion for partial summary judgment, not converting motions to dismiss his amended complaint *797 into motions for summary judgment, forcing Griffin to respond to “untimely” motions to dismiss his amended complaint, and ultimately granting these untimely motions. We disagree. The district court did not abuse its discretion when it gave Griffin leave to file an amended complaint. Once filed, that amended complaint rendered all earlier motions, including Griffin’s motion for partial summary judgment, moot. See King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994). Similarly, Griffin’s claims that the motions to dismiss his amended complaint were untimely also fail given his request to refile his amended complaint. The subsequent motions to dismiss were all timely based on this refiling. See FED. R. CIV. P. 12(a)(1)(i). The district court did not abuse its discretion.

B. Claims Against American Zurich

Griffin’s appeal argues that the district court erred when it dismissed his claims against American Zurich based on res judicata. Griffin is incorrect: res judicata bars his claim. We note that Texas, not federal, res judicata applies to Griffin’s claim before the district court, as the preclusive opinion comes from a state court. See Cox v. Nueces Cty., 839 F.3d 418, 421 & n.3 (5th Cir. 2016). But even though the district court incorrectly applied the federal res judicata standard, its analysis nonetheless supports a finding of res judicata under Texas law.

In Texas, res judicata requires: (1) a prior final judgment on the merits by a court of competent jurisdiction; (2) identity of parties or those in privity with them; and (3) a second action based on claims that were raised or could have been raised in the first action. See Cox, 839 F.3d at 421. The district court determined that the parties were identical, that a court of competent jurisdiction rendered a final judgment on the merits, and that Griffin based both actions on the same nucleus of operative facts. These determinations support a conclusion that res judicata barred this claim under Texas law, and we therefore affirm the district court as to Griffin’s claims against American Zurich.

C. Claims Against Walgreens

Griffin’s appeal as to Walgreens appears to only challenge the district court’s determination that his ADA claim failed because he failed to identify any major life activities that are substantially limited by an impairment. Griffin raises no new arguments to this issue, however, and our review of his complaint reveals that his pleadings on this specific point contain no facts about how his impairment affects him major life activities. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Without pleading facts of how his major life activities were limited, Griffin cannot state a sufficient claim to a claim under the ADA. Hale v. King, 642 F.3d 492, 499–501 (5th Cir. 2011) (per curiam). Griffin raises no other issues on appeal as to Walgreens. We therefore hold that the district court correctly dismissed all claims against Walgreens.

D. Claims Against Wells Fargo Bank

Wells Fargo was the only party to file an answer to Griffin’s amended complaint before filing its motion to dismiss. Griffin argues in his appeal that the district court improperly handled Wells Fargo’s motion, but the district court correctly converted the motion to dismiss into a motion for judgment on the pleadings and ruled on that motion. See Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999).

*798 Griffin’s substantive arguments as to Wells Fargo on appeal concern (1) the procedure surrounding Wells Fargo’s placement of child support liens on his accounts and (2) the foreclosure of his home. None of these arguments is persuasive. Griffin provides no law to support his allegations that Wells Fargo was required to provide notice before placing the liens on his accounts, and our review of potentially applicable law reveals that Griffin’s complaint is devoid of factual allegations that could potentially support a claim. As to Griffin’s foreclosure claim, wrongful foreclosure in Texas requires a plaintiff to plead that there was (1) a defect in the foreclosure, (2) a grossly inadequate selling price, and (3) a causal connection between the two. See Villarreal v. Wells Fargo Bank, N.A., 814 F.3d 763, 767–68 (5th Cir. 2016). Assuming arguendo that Griffin’s complaint pleads a defect in the foreclosure, Griffin pleaded neither that the selling price was inadequate nor that the inadequate selling price was caused by that defect. See Martins v. BAC Home Loans Serv., L.P., 722 F.3d 249, 256 (5th Cir. 2013) (per curiam). Accordingly, the district court was correct to grant Wells Fargo judgment on the pleadings on all claims asserted by Griffin.

E. Claims Against State Defendants

Griffin’s appeal as to the State Defendants attacks various aspects of the district court order dismissing his claims on the basis of, inter alia, sovereign immunity, qualified immunity, the Rooker-Feldman doctrine, and Griffin’s failure to state a claim. None of his arguments on appeal is persuasive.

As an initial matter, Griffin offers no response to the district court’s determinations on immunity. We discern no error in the district court’s analysis of this matter. Griffin repeats his claims that, under 38 U.S.C. § 5301, the State Defendants improperly garnished his veteran’s benefits. But the Supreme Court has stated that § 5301 does not protect veteran’s benefits from order or garnishment based on a failure to pay child support. See Rose v. Rose, 481 U.S. 619, 630–34, 107 S.Ct. 2029, 95 L.Ed.2d 599 (1987); see also Mansell v. Mansell, 490 U.S. 581, 587, 109 S.Ct. 2023, 104 L.Ed.2d 675 (1989) (“Because domestic relations are preeminently matters of state law, we have consistently recognized that Congress, when it passes general legislation, rarely intends to displace state authority in this area.”). Griffin’s arguments as to the applicability of the Rooker-Feldman doctrine also ring hollow: Griffin’s complaint merely attempts to challenge a state court decision under the guise of federal claims. See Richard v. Hoechst Celanese Chem. Grp., Inc., 355 F.3d 345, 351–52 (5th Cir. 2003).

As a final matter, Griffin repeatedly argues on appeal that the district court improperly set aside a default against one individual State Defendant, Valerie Rivera. Griffin is incorrect. Rivera was not properly served with Griffin’s original complaint, a fact the district court noted when it granted Griffin leave to amend his complaint. Griffin fails to demonstrate that he served the amended complaint on Rivera: the summons he relies upon for his claim that service to Rivera was completed was returned months before Griffin filed his amended complaint. This summons therefore could not have included the amended complaint. As such, the district court did not err in dismissing all claims against the State Defendants.

AFFIRMED.

United States Court of Appeals, Fifth Circuit.

Randy J. AUSTIN, Plaintiff-Appellant

v.

KROGER TEXAS, L.P., doing business as Kroger Store #209, Defendant-Appellee

No. 16-10502

|

Filed April 14, 2017

*327 Appeal from the United States District Court for the Northern District of Texas, USDC No. 3:11-CV-1169

Attorneys & Firms

Matthew J. Kita, Dallas, TX, for Plaintiff-Appellant

Donna C. Peavler, Bryan Kyle Briscoe, Peavler Group, P.C., Grapevine, TX, Kimberly Paige Harris, Beasley, Hightower & Harris, P.C., Dallas, TX, for Defendant-Appellee

Before WIENER, DENNIS, and HAYNES, Circuit Judges.

Opinion

PER CURIAM:

Randy J. Austin appeals the district court’s (1) denial of his motion to reconsider an order denying leave to file a surreply and (2) grant of summary judgment to Kroger Texas, L.P., on his ordinary negligence/necessary instrumentalities claim. The district court, in one memorandum opinion and order, both denied the motion to reconsider for Austin’s failure to satisfy Federal Rule of Civil Procedure 59(e) and granted summary judgment in favor of Kroger on three independent grounds. For the reasons explained below, we REVERSE in part, VACATE in part, and REMAND the case for further proceedings consistent with this judgment, as more fully explained below.

I. Background

Plaintiff-Appellant Randy J. Austin was a long-time employee of Defendant-Appellee Kroger Texas, L.P., working for the company in various positions since 1997. In 2008, Austin became a “utility clerk” at the Kroger store in Mesquite, Texas. His responsibilities included bagging groceries, consolidating carts, and sweeping, mopping, and cleaning the store’s restrooms.

On the morning of July 27, 2009, other employees of the Kroger store at which Austin worked performed an annual cleaning of the store’s condenser units, housed on the roof, or “mezzanine level,” of the building. This process involved Kroger employees power-washing the condensers, which resulted in a “brownie oily looking substance” leaking through the store’s ventilation ducts and creating spills in both the men’s and women’s restrooms. Austin’s supervisor directed him to clean up “whatever mess” the condenser cleaning made. Austin had never worked on a day when the condensers had been power-washed and was, therefore, unfamiliar with the liquid he was to clean up.

Kroger’s safety handbook recommends that store management make certain that a cleaning product called “Spill Magic” is adequately supplied at all times. Spill Magic is a powdery absorbent that allows a liquid spill to be cleaned with a broom and dustpan. Normally, Austin’s utility cart, which Kroger provided, included Spill Magic. On the day the store cleaned its condenser units, however, Kroger did not have any Spill Magic available for Austin to use. Austin instead attempted to clean *328 up the liquid with a dry mop. He successfully cleaned a small puddle in the women’s restroom and then proceeded to clean the men’s restroom, where the brownish liquid covered about eighty percent of the floor. Austin placed “wet floor” signs around the area and carefully took “baby steps” as he moved throughout the spill. After successfully cleaning thirty to forty percent of the spill in the men’s restroom, Austin slipped in the remaining liquid and fell, fracturing his femur and dislocating his hip. As a result of his injuries, Austin spent nine months in the hospital and underwent six surgeries, leaving his left leg two inches shorter than his right leg.

Austin originally filed the underlying lawsuit against Kroger in June 2011 in state court, seeking damages for the injuries that he suffered as a result of his slip and fall. He alleged causes of action against Kroger for premises liability, gross negligence, and ordinary negligence. In support of his ordinary negligence claim, Austin alleged two different theories of liability: Kroger had (1) engaged in negligent activities and (2) failed to provide Austin a “necessary instrumentality” to perform his job safely—specifically, Spill Magic.

Kroger removed the case to federal district court, and this court ultimately affirmed the district court’s grant of summary judgment on Austin’s premises liability, gross negligence, and ordinary negligence/negligent activities claims. However, because the district court failed to consider Austin’s ordinary negligence/necessary instrumentalities claim, we remanded the case to that court so that it could consider that claim in the first instance. See Austin v. Kroger Texas, L.P., 614 Fed.Appx. 784 (5th Cir. 2015).

Following our remand, Kroger moved for summary judgment on Austin’s ordinary negligence/necessary instrumentalities claim. After the close of summary judgment briefing, but before summary judgment was granted, Austin moved for reconsideration of his previously denied motion for leave to file a surreply. Attached to that motion was an expert report on causation, which Austin claimed would establish a material issue of fact as to causation. Although the expert report was first filed with the district court in Austin’s motion for reconsideration, it had previously been provided to Kroger about a week before Kroger filed its summary judgment motion. A few weeks after Austin moved for reconsideration, the district court—in the same memorandum opinion and order—both denied Austin’s motion for reconsideration and granted Kroger’s motion for summary judgment. Austin timely appealed both rulings.

II. Standard of Review

This court reviews de novo a district court’s grant of summary judgment, applying the same standard as the district court. Ford Motor Co. v. Tex. Dep’t of Transp., 264 F.3d 493, 498 (5th Cir. 2001). Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). “A genuine issue of material fact exists when the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Gates v. Tex. Dep’t of Protective & Regulatory Servs., 537 F.3d 404, 417 (5th Cir. 2008) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). “The court need consider only the cited materials, but it may consider other materials in the record.” FED. R. CIV. P. 56(c)(3). All evidence is viewed in the light most favorable to the nonmoving party and all reasonable inferences *329 are drawn in that party’s favor. Crawford v. Formosa Plastics Corp., La., 234 F.3d 899, 902 (5th Cir. 2000).

This court reviews the district court’s denial of a motion for reconsideration for an abuse of discretion. Calpetco 1981 v. Marshall Exploration, Inc., 989 F.2d 1408, 1414 (5th Cir. 1993). “A trial court abuses its discretion when its ruling is based on an erroneous view of the law or a clearly erroneous assessment of the evidence.” United States v. Yanez Sosa, 513 F.3d 194, 200 (5th Cir. 2008) (quoting United States v. Ragsdale, 426 F.3d 765, 774 (5th Cir. 2005)).

III. Discussion

The district court articulated three independent grounds for granting Kroger’s summary judgment motion on Austin’s ordinary negligence/necessary instrumentalities claim: (1) Kroger had no duty to provide Spill Magic because Austin failed to create a genuine issue of material fact as to whether Spill Magic was a necessary instrumentality; (2) Kroger had no duty to provide Austin with a necessary instrumentality while he was performing “customary work”; and (3) Austin failed to create a genuine issue of material fact as to whether Kroger’s failure to provide Spill Magic caused his injuries. The district court also denied Austin’s motion for reconsideration because it failed to satisfy the requirements of Federal Rule of Civil Procedure 59(e). We address each ground for summary judgment in turn, and discuss the denial of Austin’s motion for reconsideration within the discussion on causation.

A. Issue of Material Fact as to Whether Spill Magic was a Necessary Instrumentality

The district court first concluded that Kroger did not owe Austin a duty to provide Spill Magic because Austin’s evidence did not create a material fact issue about whether Spill Magic was necessary for the safe performance of his job. Because there is a genuine issue of material fact as to whether Spill Magic was necessary to the safe performance of Austin’s job, summary judgment was not appropriate on this ground.

Under Texas law, an employer has a duty to “provide needed safety equipment” to employees. Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006); see also Martinez v. Delta Brands, Inc., 515 S.W.2d 263, 265 (Tex. 1974) (“[T]he employer [has a duty] to furnish equipment adequate to enable an employee safely to do a job[.]”). However, employers have “no duty to provide equipment or assistance that is unnecessary to the job’s safe performance.” Elwood, 197 S.W.3d at 795.

In Allsup’s Convenience Stores, Inc. v. Warren, a Texas Court of Appeals considered several factors relevant to determining that an instrumentality was not necessary for the safe performance of an employee’s job: (1) the employee had never requested the instrumentality in question; (2) the employee had not complained that the task she was performing was unsafe; (3) the employee had safely performed the task in the past without injury; (4) there was no evidence that the instrumentality “was commonly used in, or had been established by industry standards or customs as a safety measure for” her job; (5) there was no evidence that “a reasonably prudent employer would have provided such instrumentality”; and (6) there was no medical evidence that the instrumentality would have prevented the employee’s injury. 934 S.W.2d 433, 438 (Tex. App.—Amarillo 1996, writ denied). Here, the district court applied those factors and determined that there was no evidence from *330 which a reasonable jury could conclude that Spill Magic was a necessary instrumentality for the safe performance of Austin’s job.

Applying the Allsup’s factors, we hold that there is a material fact issue as to whether Spill Magic was a necessary instrumentality, specifically pertaining to the fourth and fifth Allsup’s factors. See id. Austin testified that whenever he “arrived at a wet spill that had oil or water on the ground,” he would use Spill Magic to clean up the mess. Austin also testified that Spill Magic is “effective”¹ when cleaning spills and that it was customarily provided by Kroger for Austin to use. The store manager at the time of Austin’s injury admitted that Spill Magic was an important part of the safety practice at the store. There was also record evidence that Kroger’s handbook instructed store management to “make certain that the Spill Magic Spill Response Stations [were] adequately supplied at all times” and available in numerous places throughout the store, in part because Kroger believed that Spill Magic reduced the likelihood of slip and falls by 25%.² This evidence, when viewed in the light most favorable to Austin, creates genuine issues of material fact as to whether (1) “the instrumentality was commonly used ... as a safety measure” and (2) “a reasonably prudent employer would have provided such instrumentality.”³ See id.

Kroger places undue emphasis on the fact that, immediately before the accident, Austin had successfully cleaned a spill of the same type of liquid in the women’s restroom with a dry mop. Kroger argues that this evidence demonstrates that a dry mop was adequate to safely clean this type of spill, and therefore Spill Magic was unnecessary. However, the fact that Austin had successfully cleaned a much smaller spill in the women’s restroom with a dry mop does not conclusively demonstrate that Spill Magic was not necessary for Austin to safely clean a much larger and more serious spill in the men’s restroom.⁴

In sum, when we view the evidence in the light most favorable to Austin, there is a genuine issue of material fact as to whether Spill Magic was a necessary instrumentality *331 for the safe performance of Austin’s job. Therefore, summary judgment on this ground was inappropriate.

B. Duty to Provide Necessary Instrumentalities for an Employee’s Customary Work

The district court next determined that an employer does not have a duty to protect an employee from injury when the employee is engaged in the “customary work” of someone in that line of employment. Moreover, the district court concluded that an employee’s injuries sustained during the performance of his customary work are unforeseeable as a matter of law. Accordingly, after finding that Austin’s injuries occurred during the performance of his customary work, the district court concluded that Kroger could not be liable for Austin’s injuries.

Under Texas law, “[t]he existence of a legal duty is a question of law for the court to decide from the facts surrounding the occurrence in question.” Military Highway Water Supply Corp. v. Morin, 156 S.W.3d 569, 572 (Tex. 2005) (alteration in original) (quoting City of McAllen v. De La Garza, 898 S.W.2d 809, 810 (Tex. 1995)). When determining whether a defendant is under a legal duty, “foreseeability of the risk ‘is the foremost and dominant consideration.’ ” City of Waco v. Kirwan, 298 S.W.3d 618, 624 (Tex. 2009) (quoting Greater Hous. Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990)). There is no question that, under Texas law, an employer is under a general duty to provide its employees with necessary instrumentalities to safely perform their work. Austin v. Kroger Texas, L.P., 465 S.W.3d 193, 215 (Tex. 2015) (“Austin’s instrumentalities claim invokes ... the duty to furnish reasonably safe equipment necessary for performance of the job.”). The only question here is whether the scope of that duty extends to an employee’s customary work. Because we conclude that (1) employees may recover for injuries sustained during their customary work when their employers do not subscribe to the Texas Workers’ Compensation (“TWC”) Act and fail to provide necessary instrumentalities, and (2) Austin’s slip and fall would be a foreseeable consequence of failing to provide necessary equipment to safely cleanup spills, summary judgment is not appropriate on this ground.