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United States Court of Appeals, Fifth Circuit.



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.



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.


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.


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).


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.”


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.



Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

United States Court of Appeals, Fifth Circuit.

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



No. 19-20670


Summary Calendar


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.



*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.



Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.


We have not yet addressed whether 28 U.S.C. § 1445(c), which precludes removal of claims arising under the worker’s compensation laws of any state, applies when a plaintiff sues a non-subscriber under the Texas Worker’s Compensation Act. See Gomez v. O’Reilly Auto. Stores, Inc., 283 F. Supp. 3d 569, 572 (W.D. Tex. 2017). We do not address this issue here. Improper removal under § 1445(c) is a procedural defect that requires the non-removing party to move for remand within thirty days. Williams v. AC Spark Plugs Div. of Gen. Motors Corp., 2

We do not decide whether an employer’s duty to provide a reasonably safe workplace requires an employer to accommodate an employee’s medical restrictions.


While there is some dispute as to what exactly Poux was doing at the time of his stroke, we view the “facts and evidence in the light most favorable to” Milligan. Ferraro, 796 F.3d at 531.

United States Court of Appeals, Fifth Circuit.

Kenneth HENRY, Plaintiff - Appellant


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


Summary Calendar


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.



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.


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.


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.




Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

United States Court of Appeals, Fifth Circuit.



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


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.



*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.


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


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.



Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.


Ins. Co. of the State of Pa. v. Roberts, 506 S.W.3d 498, 508 (Tex. App.—Houston [1st Dist.] 2016, pet. denied, reh’g of pet. for review filed).


See Ernewayn v. Home Depot U.S.A., Inc., 727 F.3d 369, 370 (5th Cir. 2013).


28 U.S.C. § 1447(d).


Brookshire Bros. Holding, Inc. v. Dayco Prods., Inc., 554 F.3d 595, 600 (5th Cir. 2009); accord Certain Underwriters at Lloyd’s, London v. Warrantech Corp., 461 F.3d 568, 572 (5th Cir. 2006) (“Our inquiry is guided by a clear statement requirement: for a remand order to be reviewable on appeal, the district court must ‘clearly and affirmatively’ state a non-§ 1447(c) ground for remand.”).


28 U.S.C. § 1447(c).


FDIC v. Loyd, 955 F.2d 316, 320-21 (5th Cir. 1992).


28 U.S.C. § 1445(c).


Ernewayn v. Home Depot U.S.A., Inc., 727 F.3d 369, 371 (5th Cir. 2013) (alteration in original) (quoting 398 Fed.Appx. 980, 982 (5th Cir. 2010) (unpublished) (per curiam) ).


Warrantech, 461 F.3d at 573 (quoting Arnold v. State Farm Fire and Cas. Co., 277 F.3d 772, 775 (5th Cir. 2001) ); accord In re Bissonnet Invs. LLC, 320 F.3d 520, 524 (5th Cir. 2003) (“[Section] 1447(d) precludes all review of decisions to remand when based on a perceived lack of subject matter jurisdiction, even if the district court erroneously believes it lacks jurisdiction.”).


See Ernewayn, 727 F.3d at 371.


Tillman v. CSX Transp., Inc., 929 F.2d 1023, 1028 (5th Cir. 1991).

United States Court of Appeals, Fifth Circuit.

Trent S. GRIFFIN, Sr., Plaintiff-Appellant


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


Filed June 6, 2017


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.



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.


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.


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).


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.




Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.


These defendants are Greg Wasson, Jim Reilly, Sr., Chester Stevens, Januari Lewis, Jerry Padilla, Felicia Felton, Jerline Washington, Vanessa Strong, Miranda Martinez, and Daravanh Khanmanivanh.


These defendants are Ryan Brannan, Rod Bordelon, Greg Abbott, Rick Perry, Ken Paxton, Henry Whitman, Jr., Stephen McKenna, Mark Iverson, Andrew Cole, Nicole Bush, Valerie Rivera, and Thomas Hight.


Griffin also alleges that the district court incorrectly interpreted his claims by not considering his allegations of a greater conspiracy by all four groups of defendants. Griffin’s statement appears to be in reference to his claims under 42 U.S.C. § 1985. But that statute does not create any substantive rights and requires a separate violation of Griffin’s rights to support a conspiracy claim. See Miss. Woman’s Med. Clinic v. McMillian, 866 F.2d 788, 794 (5th Cir. 1989). Because the district court found that Griffin failed to plead any violation of his substantive rights, it naturally follows that Griffin failed to plead a conspiracy to violate those rights, and the district court was correct to dismiss this claim.

United States Court of Appeals, Fifth Circuit.

Randy J. AUSTIN, Plaintiff-Appellant


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.



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.

“Texas allows employers to opt out of its workers’ compensation program. Tex. Lab. Code § 406.002(a). ‘But the state makes that choice an unattractive one.’ ” Austin v. Kroger Tex. L.P., Hook v. Morrison Milling Co., 406.033(a); see also Austin, 746 F.3d at 197–98 (noting that the TWC Act “vests employees of non-subscribing employers with the right to sue their employers for work-related injuries or death”). The Code defines “course and scope of employment” broadly, so as to include the performance of

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) (emphasis added). This broad definition of “course and scope of employment” notably does *332 not include any exceptions for routine jobs or tasks performed as part of an employee’s “customary work.” Therefore, under the plain text of the TWC Act, an employee of a nonsubscribing employer may recover damages for personal injuries sustained while performing an activity “that has to do with and originates in the work, business, trade, or profession of the employer,” even if that activity is customary or routine. See id. at §§ 401.011(12) & 406.033(a).

The district court relied on the Supreme Court of Texas’s decisions in Great Atlantic & Pacific Tea Co. v. Evans, 142 Tex. 1, 175 S.W.2d 249 (1943), Werner v. Colwell, 909 S.W.2d 866 (Tex. 1995), and Kroger Co. v. Elwood, 197 S.W.3d 793 (Tex. 2006) to nevertheless conclude that a nonsubscribing employer does not have any duty to protect an employee from injury while engaged in the “customary work” required of someone in that line of employment. But these three cases only stand for the general proposition that an employer cannot be liable for breaching its duty to an employee by merely requiring the employee to perform his usual and customary work with the instrumentalities necessary to safely perform the job. See Elwood, 197 S.W.3d at 794 (“[T]here is no evidence that additional equipment or assistance were needed to perform Elwood’s job safely.”); Werner, 909 S.W.2d at 869 (“[T]here is no evidence that two employees constituted an inadequate work force to do the required loading.”); Evans 175 S.W.2d at 251 (holding that an employer did not breach its duty by requiring a stock boy to perform his customary work in accordance with industry practice and prior performance). Instead, as relevant to this case, because the employer has a duty to provide necessary instrumentalities but not unnecessary instrumentalities, the employee must show that the employer failed to provide instrumentalities to the employee that were necessary for the safe performance of the employee’s customary work. See, e.g., Elwood, 197 S.W.3d at 794–95.

Evans, Werner, and Elwood do not abrogate an employer’s “well-established non-delegable and continuous duty to furnish reasonably safe instrumentalities with which its employees are to work” when the employee is performing his customary job duties. Katy Springs & Mfg., Inc. v. Favalora, 476 S.W.3d 579, 589 (Tex. App.—Houston [14th Dist.] 2015, pet. denied) (citing Farley v. M M Cattle Co., 529 S.W.2d 751, 754 (Tex. 1975), overruled on other grounds, Parker v. Highland Park, Inc., 565 S.W.2d 512 (Tex. 1978)). Moreover, we are unaware of any case or statute saying that nonsubscribing employers are obligated to provide necessary instrumentalities only when their employees are performing irregular tasks. Were we to recognize such a rule, it would lead to absurd results.6 For example, employers of hazardous material removal workers would have no duty to provide masks or hazmat suits to employees removing asbestos, lead-based paint, or even radioactive materials, but would have a duty to provide those same employees with necessary instrumentalities for less hazardous tasks outside the normal scope of their employment.

Whether there is evidence of a breach of such duty is a different matter, but it cannot be, as the district court determined and as Kroger argues on appeal, that there is no duty at all when the employee is engaged in his routine job. See *333 Martinez, 515 S.W.2d at 265 (“The duty of the master is at all times to exercise ordinary care to furnish for the use of the servant safe and suitable machinery and appliances with which the servant is to do his work.” (emphasis added) (quoting Currie v. Mo., Kan. & Tex. Ry. Co., 101 Tex. 478, 108 S.W. 1167, 1169 (1908))); see also Austin, 465 S.W.3d at 216 (“As Austin’s employer, Kroger owed Austin ... the duty to provide [him] with necessary instrumentalities.”). Indeed, specific instrumentalities are surely necessary for the safe performance of ordinary, routine jobs. See, e.g., Martinez, 515 S.W.2d at 264–66 (holding that there was some evidence to support a finding that an employer breached its duty to provide necessary instrumentalities to a welder when it failed to provide the employee with appropriate clamps for a welding job); Kroger Co. v. Milanes, 474 S.W.3d 321, 339 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (affirming judgment that an employer breached its duty to provide necessary instrumentalities to a “meat cutter” when it provided a dull blade to the employee); Springs, 476 S.W.3d at 586, 589 (affirming judgment that an employer breached its duty to provide necessary instrumentalities to a manufacturing employee when it provided a defective manufacturing machine).

We likewise do not agree that an employee’s injuries sustained during the performance of his customary work is unforeseeable as a matter of law when the employer failed to provide necessary instrumentalities to the employee. Under Texas law, “[f]oreseeability means that an actor, as a person of ordinary intelligence, should have anticipated the dangers that his negligent act created for others.” Alcoa, Inc. v. Behringer, 235 S.W.3d 456, 460 (Tex. App.—Dallas 2007, pet denied). Texas courts “have consistently held that foreseeability turns on existence of a general danger, not awareness of the exact sequence of events that produces the harm.” Nabors Well Servs., Ltd. v. Romero, 456 S.W.3d 553, 565 (Tex. 2015) (citing Mellon Mortg. Co. v. Holder, 5 S.W.3d 654, 655 (Tex. 1999) (plurality) (collecting cases)).

The general danger created by failing to provide necessary instrumentalities is obvious to any person of ordinary intelligence, and it is not dependent on whether the employee is performing customary work. Cf. id. (explaining that there is a duty to guard against the risks of driving because “[t]he general danger of driving is obvious to everyone,” and thus foreseeable). If an instrumentality is necessary for the safe performance of an employee’s job, the employee’s risk of suffering injuries related to those safety concerns necessarily increases when the employer fails to provide the necessary instrumentality. See, e.g., Milanes, 474 S.W.3d at 329, 339 (breaching duty to provide necessary instrumentalities when a dull saw blade caused meat to jump and pull an employee’s hand into a band saw and “the probability of meat jumping or rolling increases when the saw’s blade is dull”). Contrary to Kroger’s assertion, under these circumstances, the employer is not reasonable in expecting the work to proceed like every other day without injury, particularly when the necessary instrumentality is normally provided every other day.

Here, Kroger normally provided Spill Magic to Austin to help him clean spills. On the day of his injury, Kroger asked Austin to clean “whatever mess” the annual condenser cleaning created, which included the “brownie oily looking substance” that Austin encountered in the bathroom. Kroger did not, however, provide him with Spill Magic that day to help clean the spill. Assuming the jury finds that Spill Magic is, in fact, a necessary instrumentality for safely cleaning spills, it *334 should have been foreseeable to Kroger that failing to provide Spill Magic would place Austin at risk of a slip and fall. Cf. Austin v. Kroger Texas L.P., 182 F.Supp.3d 633, 642 (N.D. Tex. 2016) (“[A] large, oily spill on the ground is undeniably a hazardous condition. But when an employer provides an employee like Austin with instrumentalities to encounter the condition, the instrumentalities adjust the apparent risk.”).

Because nonsubscribing employers owe their employees a duty to provide necessary instrumentalities to safely perform their customary work, and because it was foreseeable that Austin might slip and fall if Kroger failed to provide him necessary equipment to clean a spill, we conclude that the district court improperly granted summary judgment on this ground.7

C. Issue of Material Fact as to Causation

The final reason the district court granted Kroger’s motion for summary judgment was that it concluded Austin had no evidence to support the element of causation. The district court found that Kroger carried its summary judgment burden as to causation when it alleged that Austin had “no evidence that, more likely than not, Spill Magic would have prevented his fall.” Although Austin provided an expert report on causation to Kroger prior to Kroger filing its “no evidence” summary judgment motion, he did not file the expert report with the district court until he moved for reconsideration of the interlocutory order denying him leave to file a surreply. Austin did not attach any evidence to his response to Kroger’s summary judgment motion or his subsequent motion for leave to file a surreply, opting instead to rely on his own testimony about Spill Magic’s effectiveness as a cleaning agent. The district court rejected Austin’s “opinion testimony” about Spill Magic’s effectiveness, explaining that, “[i]n a case like this one, where there is no medical testimony linking the alleged negligence to the injury,” Austin needed to provide expert testimony to satisfy his burden. Significantly, the district court also refused to consider the “belatedly-submitted expert report” on causation.

Even though Austin submitted that report on causation for the first time in his motion for reconsideration, the expert report was not new to Kroger. Kroger already had the report at the time it filed its “no evidence” summary judgment motion.8 In his motion for reconsideration, Austin explained that his “good-faith reliance on existing case law” led him to believe that, *335 under federal law, Kroger could not rely on a “no evidence” summary judgment motion and thus the burden had not shifted to him to come forward with evidence creating an issue of material fact on causation.9 Austin also seemed to argue that Kroger would not be prejudiced by allowing him to supplement the record with the expert report because (1) Kroger received a copy of the expert report about a week before it filed its motion for summary judgment and (2) Austin would not oppose a surrebuttal, allowing Kroger to have the last word. The district court concluded that “Rule 59(e) demands more than this,” and, in the same memorandum opinion and order granting summary judgment to Kroger, declined to reconsider the interlocutory order denying Austin’s motion to file a surreply.

Austin first maintains that the district court erred when it decided that Kroger successfully shifted the summary judgment burden to Austin to produce evidence on the issue of causation. Specifically, Austin argues that federal law does not allow for “no evidence” summary judgment motions, but instead requires Kroger to point to evidence in the record showing no issue of material fact on causation. Under federal law, however, it has long been the rule that when the nonmovant has the burden of proof at trial, the moving party may make a proper summary judgment motion, thereby shifting the summary judgment burden to the nonmovant, with an allegation that the nonmovant has failed to establish an element essential to that party’s case. See, e.g., Thomas v. Barton Lodge II, Ltd., 174 F.3d 636, 644 (5th Cir. 1999) (“When a moving party alleges that there is an absence of evidence necessary to prove a specific element of a case, the nonmoving party bears the burden of presenting evidence that provides a genuine issue for trial.”) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)); see also Little v. Liquid Air Corp., 37 F.3d 1069, 1075, 1076 n.16 (5th Cir. 1994) (en banc) (noting that the party moving for summary judgment is not required to “negate the elements of the nonmovant’s case,” but may “satisfy [its] burden under Celotex” by “assert[ing the] absence of facts supporting the elements of the plaintiffs’ theory of recovery”). Kroger satisfied its summary judgment burden when it alleged that there was no evidence of causation—an element essential to Austin’s ordinary negligence claim. See W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). Therefore, Austin was required to present causation evidence to survive summary judgment.10

*336 Austin next argues that even if the summary judgment burden shifted to him, the district court also erred when it denied both his motion to file a surreply and his motion for reconsideration. As to Austin’s motion to file a surreply, the district court did not abuse its discretion because Kroger did not raise any new arguments in its reply brief, and Austin did not discuss his expert report on causation. See, e.g., Williams v. Aviall Servs. Inc., 76 Fed.Appx. 534, 535 (5th Cir. 2003). As to Austin’s motion for reconsideration, however, the district court applied Federal Rule of Civil Procedure 59(e) when it should have applied Federal Rule of Civil Procedure 54(b). Rule 54(b) is less stringent than Rule 59(e) and does not “demand more” than what Austin did to warrant reconsideration. The district court therefore abused its discretion by relying on the wrong rule to deny Austin’s motion for reconsideration.

Rule 59(e) governs motions to alter or amend a final judgment; Rule 54(b) allows parties to seek reconsideration of interlocutory orders and authorizes the district court to “revise[ ] at any time” “any order or other decision ... [that] does not end the action,” FED. R. CIV. P. 54(b). Because the district court was not asked to reconsider a judgment, the district court’s denial of Austin’s motion to reconsider its order denying leave to file a surreply should have been considered under Rule 54(b). See Cabral v. Brennan, No. 16-50661, 853 F.3d 763, 766, 2017 WL 1314928, at *2 & n.3 (5th Cir. Apr. 10, 2017) (finding harmless error when the court granted an interlocutory motion for reconsideration after applying the “more exacting” standard of Rule 59 because the losing nonmovant did not “explain how he could have been harmed by the procedural error” of applying a higher burden to the movant).

Under Rule 54(b), “the trial court is free to reconsider and reverse its decision for any reason it deems sufficient, even in the absence of new evidence or an intervening change in or clarification of the substantive law.” Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 185 (5th Cir. 1990) (citing FED. R. CIV. P. 54(b)), abrogated on other grounds, Little, 37 F.3d at 1075 n.14; see also McClung v. Gautreaux, No. 11-263, 2011 WL 4062387, at *1 (M.D. La. Sept. 13, 2011) (“Yet, because the district court is faced on with an interlocutory order, it is free to reconsider its ruling ‘for any reason it deems sufficient, even in the absence of new evidence or an intervening change in or clarification of the substantive law.’ ” (quoting Brown v. Wichita Cty., No. 7:05-cv-108-0, 2011 WL 1562567, at *2 (N.D. Tex. Apr. 26, 2011))). Rule 59(e), however, “serve[s] the narrow purpose of allowing a party to correct manifest errors of law or fact or to present newly discovered evidence,” and it is “an extraordinary remedy that should be used sparingly.” Templet v. HydroChem Inc., 367 F.3d 473, 479 (5th Cir. 2004) (alteration in original) (quoting Waltman v. Int’l Paper Co., 875 F.2d 468, 473 (5th Cir. 1989)).

The D.C. Circuit recently summarized the distinction between Rule 54(b) and Rule 59(e) as follows:

Rule 59(e), understandably, sets a high threshold for parties to raise a new argument for the first time after judgment has already been entered. ... In contrast, *337 Rule 54(b)’s approach to the interlocutory presentation of new arguments as the case evolves can be more flexible, reflecting the “inherent power of the rendering district court to afford such relief from interlocutory judgments as justice requires.”

Cobell v. Jewell, 802 F.3d 12, 25–26 (D.C. Cir. 2015) (internal citations omitted) (quoting Greene v. Union Mutual Life Ins. Co. of Am., 764 F.2d 19, 22 (1st Cir.1985) (Breyer, J.)). The D.C. Circuit held that applying Rule 59(e)’s “strict prohibition” against considering new arguments that could have been raised before the district court’s ruling was “unwarranted” and “of legal consequence” when erroneously applied to interlocutory orders. Id. Similarly, the Fourth Circuit vacated a partial summary judgment order and remanded for reconsideration of a motion to reconsider under Rule 54(b), when the district court erroneously denied the motion for failing to satisfy the requirements of Rule 59(e). Saint Annes Dev. Co. v. Trabich, 443 Fed.Appx. 829, 831–32 (4th Cir. 2011). The Fourth Circuit explained that “[t]he power to reconsider or modify interlocutory rulings ‘is committed to the discretion of the district court,’ and that discretion is not cabined by the ‘heightened standards for reconsideration’ governing final orders.” Id. at 832 (quoting Am. Canoe Ass’n v. Murphy Farms, Inc., 326 F.3d 505, 514–15 (4th Cir. 2003)).

Here, the district court denied Austin’s motion for reconsideration because the expert report “existed at the time he filed that Motion,” and “Rule 59(e) demands more than this.” This explanation evinces a clear reliance on the heightened standard of Rule 59(e) to deny Austin’s motion for reconsideration. Had the district court correctly applied the more flexible Rule 54(b), it would have had the discretion to reconsider the motion for leave to file a surreply in light of both the newly filed expert report and Austin’s equitable arguments, and would not have been constrained by whether the expert report previously existed. See Lavespere, 910 F.2d at 175. Because the district court abused its discretion, we vacate the portion of the district court order finding no material fact issue as to causation and remand for the district court to reconsider Austin’s motion for reconsideration under the more flexible Rule 54(b). Cf. Marlin v. Moody Nat’l Bank, N.A., 533 F.3d 374, 378 (5th Cir. 2008) (vacating sanctions that did not comply with Rule 11 and remanding the case for proceedings consistent with Rule 11); United States v. Thibodeaux, 663 F.2d 520, 522 (5th Cir. Nov. 1981) (vacating the denial of a motion to amend a magistrate order where the district court erroneously applied a deferential appellate review standard and remanding for the district court to apply a less deferential standard); see also Saint Annes, 443 Fed.Appx. at 831–32.

On remand, the district court should construe the procedural rules with a preference toward resolving the case on the merits and avoiding any dismissal based on a technicality. See FED. R. CIV. P. 1 (requiring the Rules to be “construed, administered, and employed by the court ... to secure the just, speedy, and inexpensive determination of every action and proceeding” (emphasis added)); Krupski v. Costa Crociere S. p. A., 560 U.S. 538, 550, 130 S.Ct. 2485, 177 L.Ed.2d 48 (2010) (noting that the Federal Rules of Civil Procedure express a general preference for “resolving disputes on their merits”); Edwards v. Occidental Chem. Corp., 892 F.2d 1442, 1445 (9th Cir. 1990) (“[T]he ‘principal function of procedural rules should be to serve as useful guides to help, not hinder, persons who have a legal right to bring their problems before the courts,’ and ‘decisions on the merits are not to be avoided on the *338 basis of mere technicalities.’ ” (quoting Schiavone v. Fortune, 477 U.S. 21, 27, 106 S.Ct. 2379, 91 L.Ed.2d 18 (1986))). The district court should also weigh the interests of justice when deciding whether to permit a surreply and allow the expert report to supplement the record. See, e.g., La Union del Pueblo Entero v. Fed. Emergency Mgmt. Agency (FEMA), No. 1:08-CV-487, 2016 WL 6915962, at *1 (S.D. Tex. Apr. 12, 2016) (“The Court finds that the interests of justice favor granting Plaintiffs leave to advance the arguments raised in their proposed surreply.”). Given both the expert report’s legal significance as the only competent evidence supporting causation—which is Austin’s only remaining hurdle to surviving summary judgment—and the lack of prejudice to Kroger—which had the report prior to filing its “no evidence” motion for summary judgment and could submit a surrebuttal—the interests of justice seem to weigh in favor of allowing the expert report to supplement the record. We do not decide that issue today, however, but instead leave it to the district court to make the determination in the first instance.


The judgment of the district court is REVERSED IN PART, VACATED IN PART, and REMANDED for further proceedings consistent with this opinion. Kroger had a duty to provide Austin with a necessary instrumentality for the safe performance of his work while he was performing “customary work” and the evidence created a genuine issue of material fact as to whether Spill Magic was a necessary instrumentality. Therefore, we reverse the district court’s judgment on these two issues. Although the district court correctly determined that Kroger shifted the summary judgment burden to Austin on the element of causation, the district court nevertheless abused its discretion when it denied Austin’s motion for reconsideration under Rule 59(e) instead of the more flexible Rule 54(b). In doing so, the district court excluded significant evidence supporting causation. Accordingly, we vacate this portion of the judgment and remand the case to the district court with instructions to (1) apply Rule 54(b) to the motion for reconsideration and (2) weigh the interests of justice when deciding whether to allow supplementation of the record with the earlier-produced but late-filed expert report.



The district court determined that Austin’s testimony about Spill Magic’s efficacy as a cleaning agent was “speculative” and “not enough.” We conclude that a janitor with fifteen years’ experience is competent to testify about the effectiveness of cleaning products and methods. See United States v. Riddle, 103 F.3d 423, 428–29 (5th Cir. 1997) (acknowledging that we have allowed lay witness opinions that required specialized knowledge as long as the opinion is a “straightforward conclusion[ ] from observations informed by his own experience” and is “one that a normal person would form from those perceptions”).


Kroger’s handbook, when used against Kroger, is admissible nonhearsay evidence as a statement by a party opponent. See FED. R. EVID. 801(d)(2).


Austin also contends that the district court should have considered his causation expert’s report in its analysis of the Allsup’s factors. As discussed infra, we conclude that the district court abused its discretion in refusing to consider whether to allow the belated expert report to supplement the record. However, even without considering the expert report, we hold that there was a genuine issue of material fact as to whether Spill Magic was a necessary instrumentality for the safe performance of Austin’s job.


Indeed, the evidence, when viewed in the light most favorable to Austin, suggests that a dry mop was inadequate to clean a spill the size and type of the one Austin encountered in the men’s restroom on the day of his accident. Although Austin testified that the dry mop heads worked, he also testified that they worked “slowly.” Despite spending over thirty minutes cleaning the men’s restroom, and despite going through several dry mop heads, Austin had only cleaned thirty to forty percent of the spill before his accident occurred.


It is undisputed that Kroger is a nonsubscribing employer under the TWC Act.


It would also largely insulate nonsubscribing employers from liability. This effect, in turn, would create perverse incentives encouraging employers to opt-out of the workers compensation program, contrary to the design of the TWC Act. See Austin, 746 F.3d at 197.


Kroger also argues that the Supreme Court of Texas already found that Kroger cannot be liable for Austin’s injuries because he was performing his customary work. This argument is misplaced. The Supreme Court of Texas did not address whether such a customary work exception applies to an employer’s duty to provide necessary instrumentalities. Indeed, it expressly declined to do so. Austin, 465 S.W.3d at 216 n.23. Rather, the court addressed exceptions to premises liability and refused to create an exception to the general premises liability rule that an employer does not have a duty to warn employees of dangers that are open and obvious or already known to the employee. Id. at 213–14. Both this court and the Supreme Court of Texas have made clear that Austin’s necessary instrumentalities claim is independent of his premises liability claim. See Austin, 614 Fed.Appx. at 784; Austin, 465 S.W.3d at 216.


The expert report concluded that “Kroger’s failure to provide Spill Magic and Slip resistant foot wear contributed to or was a cause of Austin’s slip, fall and injuries.” The expert also executed a declaration, which was attached to his report, that explained the key findings of the expert report and concluded that “it is my opinion that Kroger’s failure to provide Austin with ‘Spill Magic’ and/or ‘Shoes for Crews’ was a substantial factor in Austin’s slip, fall, and the injuries that he suffered as a result.”


In Austin’s reply in support of his motion for leave to file a surreply, he quoted the following statement of law from Royal Surplus Lines Insurance Co. v. Brownsville Independent School District as an example of the case law relied upon: “[T]he concept of a ‘no evidence’ summary judgment neither accurately describes federal law nor has any particular import in the vernacular of federal summary judgment procedure.” 404 F.Supp.2d 942, 948 (S.D. Tex. 2005).


Austin contends that our decision in Ashe v. Corley dictates a different outcome here. See 992 F.2d 540 (5th Cir. 1993). In Ashe, we held that the movant “totally failed to satisfy [its] burden as set out in Celotex,” as its motion for summary judgment “failed to raise any factual issues at all, other than in the most conclusory terms. And a mere conclusory statement that the other side has no evidence is not enough to satisfy a movant’s burden.” Id. at 544. Ashe highlights an important distinction—while it is true that a movant cannot support a motion for summary judgment with a conclusory assertion that the nonmovant has no evidence to support his case, a movant may support a motion for summary judgment by pointing out that there is no evidence to support a specific element of the nonmovant’s claim. See Celotex, 477 U.S. at 322–23, 106 S.Ct. 2548. The movant in Ashe did not point to a specific element on which the nonmovant had the burden of proof at trial and allege that there was insufficient evidence to prove that element at trial. Ashe, 992 F.2d at 544 (“The County’s motion for summary judgment failed to point out an absence of proof on any factual issue.”). Because Kroger’s motion did point to a specific element—causation—the burden shifted to Austin to demonstrate that there was a genuine dispute for trial. Thomas, 174 F.3d at 644.

United States Court of Appeals, Fifth Circuit.



State of TEXAS, DEPARTMENT OF INSURANCE, DIVISION OF WORKERS’ COMPENSATION; David Mattax, Texas Commissioner of Insurance, in his official capacity; Ryan Brannan, Texas Commissioner of Workers’ Compensation, in his official capacity, Defendants–Appellees


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, Intervenor Defendants–Appellees

No. 16-51023


FILED March 20, 2017

*510 Appeal from the United States District Court for the Western District of Texas, Sam Sparks, U.S. District Judge

Attorneys & Firms

Joshua Lee Fuchs, Houston, TX, Thomas F. Allen, Jr., Dallas, TX, Jones Day, for Plaintiff–Appellant.

Lisa Bennett, Assistant Solicitor General, Jennifer Settle Jackson, Assistant Attorney General, Office of the Attorney General for the State of Texas, Austin, TX, for Defendants–Appellees.

Matthew Birk Baumgartner, Boyce C. Cabaniss, Esq., Karen Shafrir Vladeck, Graves, Dougherty, Hearon & Moody, P.C., Paul W. Schlaud, Reeves & Brightwell, L.L.P., Austin, TX, for Intervenor Defendant–Appellee Texas Mutual Insurance Company.

Robert F. Josey, David Lawrence Plaut, Esq., Hanna & Plaut, L.L.P., Austin, TX, for Intervenor Defendant–Appellee Liberty Mutual Insurance Company.

James Michael Loughlin, Stone Loughlin & Swanson, L.L.P., Austin, TX, for Intervenor Defendants–Appellees Zenith Insurance Company, Hartford Underwriters Insurance Company, Twin City Fire Insurance Company, Transportation Insurance Company, Valley Forge Insurance Company, Truck Insurance Exchange.

George W. Hicks, Jr., Kirkland & Ellis, L.L.P., George W. Hicks, Jr., Bancroft, P.L.L.C., Washington, DC, for Amicus Curiae Air Methods Corporation.

Before JONES, BARKSDALE, and COSTA, Circuit Judges.



Primarily at issue is whether an air-ambulance company, claiming federal preemption of Texas’ workers’-compensation scheme, satisfies the equitable exception to the Eleventh Amendment, as provided in Ex parte Young, 209 U.S. 123, 155–56, 28 S.Ct. 441, 52 L.Ed. 714 (1908). It does. For this and other reasons, federal jurisdiction exists. Moreover, we decline to abstain under Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). VACATED and REMANDED.


Air Evac EMS, Incorporated, filed this action against, inter alia, the Texas Commissioner *511 of Insurance and the Texas Commissioner of Workers’ Compensation (state defendants), claiming that, as applied to air-ambulance entities, Texas’ workers’-compensation system is federally preempted. Because the Airline Deregulation Act (ADA) expressly preempts all state laws “related to a price, route, or service of an air carrier”, Air Evac maintains Texas may not use state laws to regulate air-ambulance services. 49 U.S.C. § 41713(b)(1).

Air Evac’s air ambulances depart from more than 20 sites in Texas. And, Air Evac holds an assortment of licenses from federal and state regulators, including the United States Department of Transportation, Federal Aviation Administration, and Texas. Being an emergency-transportation service, Air Evac must accept patients regardless of either their ability to pay or the source of their payment. As a result, Air Evac often seeks payment for its services through the Texas Workers’ Compensation Act (TWCA).

TWCA established a state-regulated insurance market, in which Texas licenses private insurers to sell workers’-compensation policies to employers. See Tex. Labor Code §§ 401.001419.007. Two critical features of this framework are relevant to the action at hand: a maximum-reimbursement system; and, a prohibition on “balance billing”. Id. §§ 413.011 (reimbursement guidelines), 413.042 (“A health care provider may not pursue a private claim against a workers’ compensation claimant”).

As for the reimbursement program, TWCA authorizes health-care providers to seek payment directly from workers’-compensation insurers for services provided patients covered by TWCA. Id. § 408.027(a). The insurer then reimburses the health-care provider according to rate guidelines promulgated by the Texas Workers’ Compensation Commission (commission). See id. These rates are generally based on corresponding Medicare rates. An insurer is not allowed to pay more than the maximum-reimbursement rate, regardless of whether the rate satisfies the health-care provider’s billed amount. Id. § 413.011(d).

Therefore, under this system, the initial bill goes to the insurer rather than the patient. Furthermore, the balance-billing prohibition prevents a health-care provider from billing the patient for any portion of the bill in excess of the commission’s rate. Id. § 413.042. If a health-care provider violates this prohibition, TWCA authorizes fines up to “$25,000 per day per occurrence”. Id. § 415.021(a).

If a health-care provider believes it was underpaid, or the commission has not yet set a specific rate, it may dispute the fee with the Texas Department of Insurance, Division of Workers’ Compensation (DWC). See id. § 413.031(a), (c). (Air Evac does not appeal the dismissal of DWC from this action.)

DWC serves as a first-level administrative adjudicator, with the healthcare provider and insurer participating as interested parties. See id. DWC’s decisions are appealable to the State Office of Administrative Hearings (SOAH); SOAH’s decisions, to the Travis County, Texas, district court. See id. § 413.031(k–1); Tex. Gov. Code Ann. § 2001.176. And, an appeal may be taken from a decision by that court. Tex. Gov. Code Ann. § 2001.901.

If the commission has not promulgated a reimbursement rate for a given service, DWC must determine a “fair and reasonable” rate through administrative proceedings. See 28 Tex. Admin. Code § 134.1(e)–(f). In 2002, DWC adopted a rule setting a general reimbursement rate of 125% of the Medicare rate. See id. § 134.203(d).

*512 After adhering to this rule for ten years, numerous air-ambulance companies—including Air Evac—challenged the 125% rate in the state-administrative-dispute system, urging ADA preemption. Initially, DWC stated it believed Texas’ reimbursement guidelines were preempted. In September 2015, however, following an extensive series of administrative hearings, an administrative law judge (ALJ) ruled TWCA’s scheme was not preempted, and found the proper reimbursement rate to be 149% of the Medicare rate.

The lead entity in the administrative proceeding, PHI Air Medical, LLC, appealed the ALJ’s ruling to the Travis County district court. See Tex. Mut. Ins. Co., et al. v. PHI Air Medical, LLC, No. D–1–GN–15–004940 (Tex. 53d Jud. Dist. 15 Dec. 2016). In mid-December 2016, that court ruled: TWCA is not preempted; and, a reimbursement rate of 125% of the Medicare rate is adequate under TWCA. Id. On 31 January 2017, PHI appealed to the court of appeals. In the meantime, hundreds of air-ambulance fee disputes have been held at the SOAH level, pending the outcome of PHI’s judicial proceeding.

Approximately a year earlier, in January 2016, with the state proceeding ongoing, Air Evac filed this action, seeking: a declaratory judgment that ADA preempts TWCA with respect to air-ambulance companies; injunctive relief against enforcement of the maximum-reimbursement-rate system; or, in the alternative, declaratory and injunctive relief against the balance-billing prohibition. The district court granted a joint motion to intervene on behalf of numerous workers’-compensation insurers (insurers). Prior to the discovery conference, Air Evac moved for summary judgment and each defendant moved to dismiss.

The court granted defendants’ Federal Rule of Civil Procedure 12(b)(1) motions to dismiss. Air Evac EMS, Inc. v. Texas, No. 1:16-CV-00060-SS, 2016 WL 4259552, at *9 (W.D. Tex. 11 Aug. 2016). In doing so, it first ruled subject-matter jurisdiction existed, based on Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96 n.14, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983) (ruling preemption claims present a federal question because they rely on interpretation of federal statutes and the Supremacy Clause). Air Evac EMS, 2016 WL 4259552, at *5. The court continued to explain that, although Shaw confers federal-question jurisdiction under 28 U.S.C. 1331, the Supremacy Clause, ADA, and Declaratory Judgment Act do not provide a “private right of action”. Id. at *5–6.

Therefore, in the light of the Eleventh Amendment, the court concluded: in order for this action to proceed, Air Evac must rely on a federal court’s equitable jurisdiction to enjoin state officials under Ex parte Young. Id. at *6. Looking to Ex parte Young’s basic requirements, the court first acknowledged Air Evac: seeks prospective injunctive relief; and claims an ongoing violation of federal law. Id. at *6–7.

The court next considered Okpalobi v. Foster, 244 F.3d 405 (5th Cir. 2001) (en banc), in which the lead, plurality opinion would have required defendants in an Ex parte Young action to, inter alia, “be specially charged with the duty to enforce the statute”, as well as to “be threatening to exercise that duty”. Air Evac EMS, 2016 WL 4259552, at *7 (quoting Okpalobi, 244 F.3d at 414–15). Relying on the duty-to-enforce requirement, the court noted TWCA’s maximum-reimbursement scheme cannot be enforced against Air Evac because it constrains the amount insurers can pay, rather than the amount air-ambulance companies can charge. Id. at *8. Without direct enforcement against the health-care providers, the court concluded, the maximum-reimbursement system does *513 not qualify as the basis for the Ex parte Young exception. Id.

Turning to Air Evac’s alternative challenge to the balance-billing prohibition, the court recognized state defendants are charged with enforcing the provision against entities which violate the rule. Id. The court, however, held: “Air Evac’s claims fail under Young, as Air Evac has failed to show an enforcement proceeding concerning the balance-billing prohibition is imminent, threatened, or even intended”. Id. In doing so, the court specifically rejected Air Evac’s assertion that it need not “expose itself” to liability by violating the balance-billing prohibition in order to test the law’s constitutionality under the Supremacy Clause. Id.

In sum, the court held: despite claiming an ongoing violation of federal law and seeking only prospective relief, Air Evac could not avail itself of the Ex parte Young exception because the maximum-reimbursement system is not directly enforced against Air Evac, and state defendants have not threatened to enforce the balance-billing prohibition. Id. at *9.


For this appeal, our court granted expedited briefing and oral argument. The parties raise four distinct threshold issues: whether Air Evac has Article III standing; whether federal-question jurisdiction exists for this action under 28 U.S.C. § 1331; whether Ex parte Young’s exception applies; and whether, in the light of the above-referenced ongoing state proceedings, we should abstain from exercising otherwise-proper jurisdiction.

A motion to dismiss’ being granted is reviewed de novo, applying the same standard as the district court. E.g., Bennett–Nelson v. La. Bd. of Regents, 431 F.3d 448, 450 n.2 (5th Cir. 2005). And, of course, a federal court must always determine its own jurisdiction; if it decides it is lacking, it may proceed no further. E.g., Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). Consistent with our above-described standard of review, “whether state defendants are entitled to sovereign immunity is likewise reviewed de novo”. Moore v. La. Bd. of Elementary & Secondary Educ., 743 F.3d 959, 962 (5th Cir. 2014) (internal citation omitted).


State defendants’ challenge to Air Evac’s standing is adopted by insurers. Federal standing has three well-known requirements: (1) injury-in-fact; (2) “fairly traceable” causation; and (3) redressability. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). In concluding Air Evac has standing, the court stated:

Air Evac has suffered economic injury given its alleged inability to recover the total amount of its billed charges under the TWCA reimbursement scheme; the causal connection between the scheme and Air Evac’s injury is clear; and if the challenged provisions are indeed preempted, the State Defendants will no longer be able to enforce them. Air Evac has standing to sue.

Air Evac EMS, 2016 WL 4259552, at *4 n.2.

State defendants assert the district court’s analysis is too simplistic, that Air Evac cannot establish causation or redressability. They maintain that, to the extent not being able to recover full-billed charges is an injury, there is no traceability or redressability because TWCA’s reimbursement cap is not directly “enforced” against Air Evac, but against insurers. (As discussed infra, there is significant overlap *514 between standing and Ex parte Young’s applicability.)

Under the above-described three-part test, an injury-in-fact—the first requirement—must be “concrete and particularized” and “actual or imminent”. Lujan, 504 U.S. at 560, 112 S.Ct. 2130. Working in tandem, TWCA’s provisions effectively set a reimbursement rate and prohibit air-ambulance entities from collecting any more than that rate from other sources (i.e., the patient).

Along that line, Ex parte Young was a rate-setting case in which a railroad was not allowed to charge more than the state-mandated rate. 209 U.S. at 127–28, 28 S.Ct. 441. There, the complaint claimed those rates were confiscatory, in violation of the Fourteenth Amendment’s mandate that no State shall “deprive any person of life, liberty, or property, without due process of law”. U.S. Const. amend. XIV, § 1; see Ex parte Young, 209 U.S. at 149–50, 28 S.Ct. 441. Although Air Evac does not contend that collecting 125% of the Medicare rate is confiscatory, capping rates based on a federally-preempted state law (by virtue of the Supremacy Clause) would limit a party’s financial recovery. Thus, prohibiting collection in excess of the maximum-reimbursement rate is a pecuniary injury sufficient to establish injury-in-fact. See, e.g., K.P. v. LeBlanc, 627 F.3d 115, 122 (5th Cir. 2010).

For the second standing requirement, there must be a “fairly traceable” causal connection “between the injury and the conduct complained of”. Lujan, 504 U.S. at 560, 112 S.Ct. 2130. Three of state defendants’ duties are “fairly traceable” to Air Evac’s injury: (1) rate-setting; (2) fee-dispute resolution; and (3) the balance-billing prohibition. For the reasons that follow, collectively, these three instances of commission and DWC conduct are “fairly traceable” to Air Evac’s injury.

First, the commission and DWC set the reimbursement rates insurers are allowed to pay. Although defendants contend this rate-setting is too attenuated to be the cause of Air Evac’s injury, “[t]racing an injury is not the same as seeking its proximate cause”. K.P., 627 F.3d at 123. By setting the reimbursement rates, state defendants initiate the first step in the workers’-compensation-payment process.

Second, state defendants oversee the administrative fee-dispute process. In K.P., described infra, a state regulatory board served as the “initial arbiter[ ]” within a state-funded compensation system. Id. Our court ruled that role “place[d] the Defendants among those who would contribute to Plaintiffs’ harm”. Id. Likewise, state defendants’ oversight of DWC—the “initial arbiter[ ]” of fee-reimbursement disputes—places state defendants among those who cause Air Evac’s injury. Id.

Third, state defendants are charged with enforcing the balance-billing prohibition. Their ability to fine TWCA violators up to $25,000 per violation, per day, prevents Air Evac from seeking additional payment outside of the maximum-reimbursement scheme.

The final of the three standing requirements is that the court be able to structure relief to redress plaintiff’s injury. Plaintiff must show a “favorable decision will relieve a discrete injury to himself”, but not necessarily “that a favorable decision will relieve his every injury”. Larson v. Valente, 456 U.S. 228, 243 n.15, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982) (emphasis in original).

In Okpalobi, defendant state officials (governor and attorney general) were found not to have “any duty or ability to do anything” relating to the statute. 244 F.3d at 427 (emphasis in original). On the other hand, in K.P., defendant board members *515 had “definite responsibilities relating to the application of [the statute]”. 627 F.3d at 124.

Here, state defendants are more akin to the board members in K.P. than the state-wide officials in Okpalobi. As explained above, state defendants wield influence at multiple points in the workers’-compensation reimbursement process. An injunction against their rate setting, fee-dispute resolution, or enforcement of the balance-billing prohibition would remove a “discrete injury” caused by state defendants’ enforcement of TWCA. See Larson, 456 U.S. at 243 n.15, 102 S.Ct. 1673.

In sum, state defendants’ duties concerning the workers’-compensation reimbursement system and balance-billing prohibition cause Air Evac a pecuniary injury that can be redressed with injunctive and declaratory relief. In short, Air Evac has Article III standing.


Next, state defendants (but not insurers) contend federal-question jurisdiction for this action is lacking, based on Armstrong v. Exceptional Child Center, Inc., ––– U.S. ––––, 135 S.Ct. 1378, 1384, 191 L.Ed.2d 471 (2015). State defendants cite Armstrong for the proposition that, in order for federal jurisdiction to exist, plaintiff, at this threshold stage, must nevertheless establish the requirements for injunctive relief.

The district court ruled federal-question jurisdiction existed, based on the Court’s plain statement in Shaw. See Air Evac EMS, 2016 WL 4259552, at *5 (citing Shaw, 463 U.S. at 96 n.14, 103 S.Ct. 2890). The Shaw Court stated: “A plaintiff who seeks injunctive relief from state regulation, on the ground that such regulation is pre-empted by a federal statute which, by virtue of the Supremacy Clause of the Constitution, must prevail, thus presents a federal question which the federal courts have jurisdiction under 28 U.S.C. § 1331 to resolve”. 463 U.S. at 96 n.14, 103 S.Ct. 2890. Because Air Evac’s complaint seeks injunctive relief on the basis that the ADA preempts the TWCA, Shaw confers federal-question jurisdiction. See id.

Despite state defendants’ assertions to the contrary, Armstrong does not modify Shaw’s clear language. Armstrong holds the Supremacy Clause does not create a right to challenge state laws on preemption grounds; rather, the clause “instructs courts what to do when state and federal law clash, but is silent regarding who may enforce federal laws in court”. Armstrong, 135 S.Ct. at 1383. Thus, the Court held: “The ability to sue to enjoin unconstitutional actions by state and federal officers is the creation of courts of equity”, not the Supremacy Clause. Id. at 1384.

In Armstrong, the Court reaffirmed that plaintiffs’ seeking injunctive relief against state officers must satisfy Ex parte Young’s equitable exception. See id. This holding requires Air Evac proceed under Ex parte Young, if at all; but, it does not contradict Shaw’s plain grant of federal-question jurisdiction under Article III and 28 U.S.C. § 1331. See Shaw, 463 U.S. at 96 n.14, 103 S.Ct. 2890.


Having concluded jurisdiction existed, the district court next considered Ex parte Young’s applicability. Air Evac EMS, 2016 WL 4259552, at *6. As noted, Ex parte Young represents an equitable exception to Eleventh Amendment sovereign immunity. 209 U.S. at 155–56, 28 S.Ct. 441. The doctrine allows plaintiff to sue a state official, in his official capacity, in seeking to enjoin enforcement of a state law that conflicts with federal law. See id. at 159–60, 28 S.Ct. 441. It is a threshold *516 question which, therefore, does not consider the merits of an action, focusing instead on whether the complaint makes the requisite claims against proper parties. See id. at 150, 28 S.Ct. 441. Air Evac contends the district court misapplied Ex parte Young’s standard in two ways.

First, Air Evac challenges the court’s concluding the maximum-reimbursement rates are not enforced against Air Evac because TWCA regulates the amount insurers may pay, rather than the amount air-ambulance entities can collect. Air Evac EMS, 2016 WL 4259552, at *8. Air Evac asserts the statute is directly enforced against it every time it either seeks reimbursement through TWCA or disputes a reimbursement amount through DWC’s administrative process.

Second, Air Evac claims the court erred by requiring “initiated [or] threatened enforcement proceedings” in order, under Ex parte Young, to challenge TWCA’s balance-billing prohibition. See id. at *7. Air Evac contends Ex parte Young, instead, requires only a “straightforward inquiry” for whether the complaint seeks prospective equitable relief for an ongoing violation of federal law, citing Verizon Maryland, Inc. v. Public Service Commission of Maryland, 535 U.S. 635, 645, 122 S.Ct. 1753, 152 L.Ed.2d 871 (2002).

State defendants and insurers maintain the court was correct to require direct enforcement against Air Evac for the maximum-reimbursement provisions. Likewise, for the balance-billing prohibition, defendants agree with the court’s concluding there is no imminent or threatened enforcement proceeding sufficient to meet the Ex parte Young exception. In addition to echoing the court’s reasoning, defendants also contend: the dismissal should be affirmed because, inter alia, Air Evac does not meet the traditional requirements for equitable relief; therefore, no injunctive relief can be issued pursuant to the Ex parte Young exception.

Ex parte Young concerned whether a federal court may enjoin a state official from enforcing an unconstitutional state law. 209 U.S. at 126–27, 28 S.Ct. 441. Underlying the issue was a railroad’s seeking an injunction against the Minnesota attorney general, who threatened criminal action and civil fines against any railroad that violated the state commission’s rate-setting order. Id. at 127–28, 28 S.Ct. 441. The railroad asserted, as discussed supra, that the rates amounted to a confiscatory taking, in violation of the Fourteenth Amendment; the attorney general claimed protection from suit under the Eleventh Amendment. See id. at 150, 28 S.Ct. 441.

Addressing the viability of a federal injunction, the Court held:

[I]ndividuals who, as officers of the State, are clothed with some duty in regard to the enforcement of the laws of the state, and who threaten and are about to commence proceedings, either of a civil or criminal nature, to enforce against parties affected an unconstitutional act, violating the Federal Constitution, may be enjoined by a Federal court of equity from such action.

Id. at 155–56, 28 S.Ct. 441. In justifying its holding, the Court avoided the apparent conflict with sovereign immunity by creating a legal “fiction”: a federal court does not violate state sovereignty when it orders a state official to do nothing more than uphold federal law under the Supremacy Clause. Va. Office for Prot. & Advocacy v. Stewart, 563 U.S. 247, 255, 131 S.Ct. 1632, 179 L.Ed.2d 675 (2011); see Ex parte Young, 209 U.S. at 159–60, 28 S.Ct. 441.

Because this legal fiction infringes on state sovereignty, Ex parte Young and its progeny limit the exception. *517 Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 269, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997) (affirming that, in applying Ex parte Young, courts “must ensure that the doctrine of sovereign immunity remains meaningful, while also giving recognition to the need to prevent violations of federal law”); see also Pennhurst State Sch. and Hosp. v. Halderman, 465 U.S. 89, 104–06, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) (limiting Ex parte Young jurisdiction only to violations of the federal Constitution and statutes); Edelman v. Jordan, 415 U.S. 651, 677, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) (limiting Ex parte Young plaintiffs only to prospective relief). Most relevant to the action at hand, Ex parte Young requires defendants have “some connection” to the state law’s enforcement and threaten to exercise that authority. Ex parte Young, 209 U.S. at 157, 28 S.Ct. 441.

This “some connection” requirement is designed to ensure defendant is not merely being sued “as a representative of the state, and thereby attempting to make the state a party”. Id. For example, a state governor with a broad duty to uphold state law is not a proper defendant. See Morris v. Livingston, 739 F.3d 740, 745–46 (5th Cir. 2014).

Despite these restrictions, the Court has reinforced Ex parte Young’s being a “straightforward inquiry” and specifically rejected an approach that would go beyond a threshold analysis. See Coeur d’Alene, 521 U.S. at 296, 117 S.Ct. 2028 (O’Connor, J., concurring in part and in judgment). In Coeur d’Alene, the lead opinion proposed a balancing test, weighing the significance of the federal right, the availability of a state forum, and the importance of the state interest. Id. at 270–80, 117 S.Ct. 2028. Seven justices rejected this approach and agreed with Justice O’Connor’s position that a case-by-case balancing test “unnecessarily recharacterizes and narrows” Ex parte Young. Id. at 291, 117 S.Ct. 2028 (O’Connor, J., concurring in part and in judgment); id. at 298, 117 S.Ct. 2028 (Souter, J., dissenting).

Subsequently, in Verizon, 535 U.S. at 645, 122 S.Ct. 1753 (quoting Coeur d’Alene, 521 U.S. at 296, 117 S.Ct. 2028 (O’Connor, J., concurring in part and in judgment)), a majority of the Court affirmed this principle, stating: “[A] court need only conduct a ‘straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective’ ”. There, a state regulatory commission issued an order interpreting the scope of a private contract, which had been subject to prior commission approval. Id. at 639–40, 122 S.Ct. 1753. Plaintiff’s subsequent federal-court action claimed the commission’s order conflicted with federal law. Id. at 640, 122 S.Ct. 1753.

The Court conducted a “straightforward inquiry” into the pleadings and noted: “We have approved injunction suits against state regulatory commissioners in like contexts”. Id. at 645, 122 S.Ct. 1753 (collecting cases). Thus, the action could proceed against state commissioners for their role in implementing a state regulatory scheme. See id. at 645–48, 122 S.Ct. 1753.

Our court has also considered Ex parte Young’s navigating between state sovereignty and federal supremacy: specifically, how close a relationship is required between the state actor and the claimed unconstitutional act. Compare Okpalobi, 244 F.3d at 413–16 (lead plurality requiring a “special relation” to “threatened enforcement”), with K.P., 627 F.3d at 124 (explicitly declining to follow the Okpalobi plurality’s “special relation” standard). For example, in our en-banc decision in Okpalobi, the Eleventh Amendment question was whether defendants—Louisiana’s governor and attorney general—had a sufficient duty, under Ex parte Young, to enforce *518 a Louisiana statute. See 244 F.3d at 410–11. The statute provided for private actions and unlimited tort liability against doctors who performed abortions. Id. at 409.

The lead opinion interpreted Ex parte Young’s “some connection” language to require a “special relation” or “close connection”. See id. at 413–19 (citing Ex parte Young, 209 U.S. at 157, 28 S.Ct. 441; Fitts v. McGhee, 172 U.S. 516, 529, 19 S.Ct. 269, 43 L.Ed. 535 (1899)). Because the statute provided only for private enforcement by patients (as opposed to state enforcement), and because the governor and attorney general had only a “general duty” to see state laws enforced, the lead opinion held such a tenuous connection was insufficient to invoke Ex parte Young. Okpalobi, 244 F.3d at 423–24.

As noted supra, the Eleventh Amendment analysis in Okpalobi, however, received support only from a plurality of our en banc court; the majority decided the case on standing. See id. at 429 (Higginbotham, J., concurring); id. at 432–33 (Benavides, J., concurring in part and dissenting in part); id. at 441 (Parker, J., dissenting). Subsequently, in K.P., 627 F.3d at 124, our court stated: “Because that part of the [Okpalobi] en banc opinion did not garner majority support, the Eleventh Amendment analysis is not binding precedent”.

The K.P. court considered the same Louisiana abortion statute as had Okpalobi, but in a different context. K.P., 627 F.3d at 119–20, 122. There, plaintiff physicians were members of Louisiana’s patients’-compensation fund, which effectively capped physicians’ liability in medical-malpractice actions. Id. at 119. An oversight board administered the fund by reviewing patient claims and determining coverage. See id. But, when a patient filed a claim asserting abortion-related tort damages, the board relied on the Louisiana abortion statute to exclude the physicians from the fund’s coverage and liability cap. Id. at 120; see La. Rev. Stat. Ann. § 9:2800.12(A), (B)(2), (C)(2) (excluding abortion procedures from the “laws governing medical malpractice or limitations of liability thereof”). Plaintiff physicians’ subsequent federal-court action sought to enjoin the board’s denying them coverage based on the claimed unconstitutional abortion statute. K.P., 627 F.3d at 120.

In its Eleventh Amendment analysis, the K.P. court defined “enforcement” as involving “compulsion or constraint”. Id. at 124. It then held, without adopting the “special relation” standard from Okpalobi, that “the Board’s role starts with deciding whether to have a medical review panel consider abortion claims and ends with deciding whether to pay them. By virtue of these responsibilities, Board members are delegated some enforcement authority”. Id. at 125. Unlike the governor and attorney general in Okpalobi, the board in K.P. took specific action predicated on the abortion statute; this was a sufficient connection to enforcement to trigger the Ex parte Young exception. See id.

As these cases demonstrate, the Ex parte Young analysis can turn on subtle distinctions in the complaint. Ex parte Young and Okpalobi each involved a state attorney general as defendant. In Ex parte Young, the attorney general had authority to enforce the statute at issue, while the Louisiana abortion statute in Okpalobi provided for enforcement through private actions, not public officials.

On the other hand, in Okpalobi and K.P., the same statute was at issue, but defendants in the respective actions provided the determinative distinction. Rather than suing the attorney general and governor, as in Okpalobi, the K.P. plaintiffs sued the state-regulatory-board members, *519 who had a specific means through which to apply the abortion statute. Thus, the Ex parte Young analysis turns on the complaint’s context—including the challenged state law and defendants—to determine whether “the state officer, by virtue of his office, has some connection with the enforcement of the act”. Ex parte Young, 209 U.S. at 157, 28 S.Ct. 441.


Turning to the matter at hand, we must decide whether state defendants have the requisite connection to the enforcement of the maximum-reimbursement system and balance-billing prohibition. In doing so, we bear in mind the Court’s admonition that Ex parte Young presents a “straightforward inquiry” into the complaint’s claims. See Verizon, 535 U.S. at 645, 122 S.Ct. 1753.

First, as the district court noted, Air Evac claims an ongoing violation of federal law and seeks prospective relief. See Air Evac EMS, 2016 WL 4259552, at *7. The complaint claims the ADA expressly preempts the workers’-compensation system with respect to air-ambulance entities and seeks an injunction and declaratory judgment.

Next, we hold state defendants have a sufficient connection to the enforcement of the TWCA through the maximum-reimbursement rates and balance-billing prohibition. The district court was correct to recognize that “enforcement” under the maximum-reimbursement scheme is not the same type of direct enforcement found in Ex parte Young, for instance, where the attorney general threatened civil and criminal prosecution. But, such enforcement is not required. See, e.g., Verizon, 535 U.S. at 645–46, 122 S.Ct. 1753; K.P., 627 F.3d at 124–25. In Verizon, the Court allowed an action against commissioners who ordered specific payments between private parties. 535 U.S. at 645–46, 122 S.Ct. 1753. Likewise, in K.P., the board members’ reliance on the abortion statute to deny liability protection qualified as enforcement. 627 F.3d at 125.

Employing K.P.’s definition of “enforcement” as “compulsion or constraint”, state defendants obviously constrain Air Evac’s ability to collect more than the maximum-reimbursement rate under the TWCA system. Between their rate-setting authority and role in arbitrating fee disputes through the administrative process, state defendants effectively ensure the maximum-reimbursement scheme is enforced from start to finish. Therefore, the district court erred in not considering, for the purpose of Ex parte Young’s being applied, the maximum-reimbursement provision as a means of enforcing TWCA against Air Evac.

The parties debate whether Ex parte Young applies only when there is a threatened or actual proceeding to enforce the challenged state law. We need not resolve that question. To the extent Ex parte Young requires that the state actor “threaten” or “commence” proceedings to enforce the unconstitutional act, state defendants’ pervasive enforcement satisfies that test. See 209 U.S. at 156, 28 S.Ct. 441. In K.P., our court held the prior denial of liability coverage fulfilled the threatened-proceedings requirement; so, too, does state defendants’ enforcement of the 125% air-ambulance-reimbursement rate. See K.P., 627 F.3d at 125.


Having held the Ex parte Young exception applies, we need not engage in a separate analysis of the balance-billing prohibition. As discussed, the district court concluded “Air Evac has failed to show an enforcement proceeding concerning the *520 balance-billing prohibition is imminent, threatened, or even intended”. Air Evac EMS, 2016 WL 4259552, at *8. We note, however, that the balance-billing prohibition works in concert with state defendants’ implementation of the reimbursement system, serving as a backstop against alternative methods of fee collection. State defendants’ pervasive authority to oversee and enforce Texas’ workers’-compensation system satisfies the Ex parte Young exception.


Finally, courts recognize the significant overlap between Article III jurisdiction, Ex parte Young, and equitable relief. See, e.g., NiGen Biotech, L.L.C. v. Paxton, 804 F.3d 389, 394 n.5 (5th Cir. 2015) (equating and distinguishing Ex parte Young’s requirements with the “Article III minimum for standing to request an injunction”). As with most jurisdictional questions, Ex parte Young and standing turn on the specific details in the complaint.

These doctrines are both threshold questions, however, and do not consider the action’s merits. In fact, the Ex parte Young Court acknowledged the underlying action would rely on the Fourteenth Amendment, but noted “a decision of this case does not require an examination or decision of the question whether [the Fourteenth Amendment’s] adoption in any way altered or limited the effect of the [Eleventh] Amendment”. 209 U.S. at 150, 28 S.Ct. 441. In doing so, the Court recognized that its Eleventh Amendment analysis was distinct from any subsequent question on the merits. See id.; see also Verizon, 535 U.S. at 646, 122 S.Ct. 1753 (“But the inquiry into whether suit lies under Ex parte Young does not include an analysis of the merits of the claim.”).

Therefore, having determined Air Evac’s action satisfies the Ex parte Young exception, we need not consider—contrary to defendants’ assertion—whether the requirements for temporary or permanent equitable relief are also satisfied. Doing so is beyond the threshold jurisdictional question posed by Ex parte Young and would consider the availability and scope of any eventual relief.


State defendants’ final contention (adopted by insurers) is that, assuming jurisdiction exists for this action, Colorado River abstention should be invoked in the light of PHI’s proceedings in Texas state court and the administrative system. See Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). Because the district court based dismissal on the Eleventh Amendment, it “decline[d] to consider the propriety of Colorado River abstention”. Air Evac EMS, 2016 WL 4259552, at *9. Discretionary Colorado River abstention may be applied when: a state proceeding is ongoing and is parallel to the federal proceeding; and, extraordinary circumstances caution against exercising concurrent federal jurisdiction. See Colorado River, 424 U.S. at 817–19, 96 S.Ct. 1236.

“Parallel actions” typically involve the same parties, but the identity of the parties is not determinative. See Afr. Methodist Episcopal Church v. Lucien, 756 F.3d 788, 797 (5th Cir. 2014). Instead, a court may “look both to the named parties and to the substance of the claims asserted” to determine whether the state proceeding would be dispositive of a concurrent federal proceeding. Id. If the matters are deemed parallel, the court must engage in a six-factor balancing test, but “with the balance heavily weighted in favor of the exercise of [federal] jurisdiction”. *521 Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 16, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983); see Kelly Inv., Inc. v. Cont’l Common Corp., 315 F.3d 494, 497 (5th Cir. 2002) (listing the Colorado River factors).

For the requisite parallel action, state defendants point to the above-described PHI litigation, which arose out of DWC’s administrative appeals process. As discussed, Air Evac and numerous other air-ambulance entities, in 2012, began challenging reimbursement rates through DWC’s fee-dispute process. The appeals were consolidated; and, after extensive administrative proceedings, an ALJ ruled against ADA preemption. PHI sought judicial review in the Travis County district court; the other air-ambulance matters were held in abeyance pending resolution of that appeal. Shortly after oral argument in our court for the instant appeal, the state court ruled against preemption and found a 125% reimbursement rate adequate. See Tex. Mut. Ins. Co., et al. v. PHI Air Medical, LLC, Cause No. D–1–GN–15–00490 (Tex. 53d Jud. Dist. 15 Dec. 2016). PHI has appealed to Texas’ court of appeals.

Nonetheless, given the differences between the two actions and lack of preclusive effect, we do not consider the PHI state-court proceeding to be “parallel” for the purpose of Colorado River abstention. For example, the parties are different on both sides: neither Air Evac nor state defendants are party to the PHI litigation. In addition, the state proceeding required the adjudicator to determine an adequate reimbursement rate, an issue not before our court. See id. at 2. And, most especially, the exceptional nature of federal abstention cuts in favor of jurisdiction. Accordingly, we decline to abstain.


For the foregoing reasons, the judgment is VACATED, and this matter is REMANDED for further proceedings consistent with this opinion.

United States Court of Appeals,

Fifth Circuit.



TRACTOR SUPPLY COMPANY; Tractor Supply Company of Texas, L.P.; Safety National Casualty Corporation, Defendants–Appellees.

No. 14–51164.


Aug. 25, 2015.

Attorneys & Firms

*160 Sherman Vance Wittie, Esq., Senior Special Counsel, George S. McCall, Sedgwick, L.L.P., Dallas, TX, for Plaintiff–Appellant.

Matt R. Pickelman, Quilling, Selander, Lownds, Winslett & Moser, P.C., Paul A. Bezney, Adkerson, Hauder & Bezney, P.C., Dallas, TX, Matt R. Pickelman, for Defendants–Appellees.

Appeal from the United States District Court for the Western District of Texas, USDC No. 6:13–CV–269.

Before CLEMENT, PRADO, and ELROD, Circuit Judges.



This case stems from injuries Kenneth McGowan sustained while working at a distribution center owned by Tractor Supply Company of Texas, L.P. (TSCLP). While McGowan’s Texas state-court tort suit against TSCLP was pending, Ironshore Specialty Insurance Company, which provides an umbrella policy for TSCLP, commenced an action under the Declaratory Judgment Act (DJA) in federal district court against TSCLP and Safety National, which insures TSCLP against bodily injury to Texas employees. Ironshore sought a declaration that Safety National’s policy covered TSCLP’s liability to McGowan, and that any indemnity owed by Ironshore was in excess of that coverage. After a state court jury found that TSCLP was liable to McGowan for over $8 million in damages, the federal district court dismissed the declaratory judgment action pursuant to its discretion under the DJA. Ironshore appeals that dismissal. We reverse and remand.


Kenneth McGowan, whose workplace injuries occasioned this lawsuit, was hired by Job Link Personnel Services, Incorporated, a staffing company. Job Link assigned McGowan to work at the TSCLP distribution center in Waco, Texas. At the distribution center, a TSCLP employee, Dwight Bledsoe, dropped a pallet onto McGowan, injuring him.

The accident and ensuing litigation implicate numerous insurance policies. Job Link maintained a Texas workers’ compensation policy with Texas Mutual Insurance Company. After the accident, McGowan applied for and received benefits under this plan. At the time of the accident, TSCLP had elected not to subscribe to the Texas workers’ compensation system and instead created an ERISA work-injury *161 benefit plan. TSCLP also obtained a Nonsubscriber Policy from Safety National containing two coverage provisions, one of which is implicated here.1

Under the “Excess Employers’ Liability” provision, Safety National must reimburse TSCLP “for all sums in excess of the Self–Insured Retention as specified in ... the Declarations, which [TSCLP] legally must pay as Bodily Injury Damages to your Employee(s).” (emphasis added). “Employee” is defined as:

(a) a person who is employed in the regular business of, is under the direction and control of, and receives pay by means of a salary, wage or commission directly from, an Employer named ... as a Named Insured, and for whom an Employer files a Form W–2 with the Internal Revenue Service; or (b) a person determined to be a common law Employee of an Employer by a court of competent jurisdiction.... Provided, further, that under no circumstances shall the term Employee include a leased employee, an independent contractor, third-party agent or volunteer.

It is undisputed that Job Link paid McGowan and TSCLP did not file a W–2 with the IRS for him.

TSCLP also held a $25 million Commercial Umbrella Liability Policy from Ironshore. This policy lists, inter alia, the Safety National policy as underlying insurance for the “Texas Employer’s Liability” policy, which applies to bodily injury “arising out of or in the course of the injured employee’s employment by the Insured ... in the State of Texas.” Ironshore alleges that its policy covers only costs in excess of the Safety National policy.

McGowan sued Tractor Supply Company, TSCLP, and Bledsoe in Texas state court,2 alleging, inter alia, that TSCLP was negligent and grossly negligent, and that it is vicariously liable for Bledsoe’s acts. The parties filed cross-motions for summary judgment. Tractor Supply Company and TSCLP argued that TSCLP was McGowan’s statutory employer under the Texas Workers’ Compensation Act (TWCA) and that Tractor Supply Company and TSCLP “are immune from suit due to the exclusive remedy provisions of the [TWCA].”3

McGowan countered with motions for partial summary judgment on the exclusive-remedy defense. He argued that because TSCLP does not maintain workers’ compensation insurance, it is not entitled to the protection of the exclusive-remedy provision. McGowan also argued that the exclusive-remedy defense failed because TSCLP was not McGowan’s employer under the TWCA. The Texas trial court granted McGowan’s motions for partial summary judgment against Tractor Supply Company and TSCLP without explanation.4

The Texas case proceeded to trial. On July 14, 2014, a jury found that TSCLP’s negligence caused McGowan’s injuries and the Texas trial court entered judgment *162 awarding McGowan $8,767,375.81. TSCLP’s appeal of this award is currently pending before Texas’s Tenth Court of Appeals.

In August 2013, Ironshore filed a federal declaratory judgment action in the Western District of Texas against TSCLP and Safety National.5 Ironshore sought declarations that (1) McGowan was an “employee” under the Safety National policy and Texas common law; (2) the state court suit is covered by the Safety National policy; (3) any coverage owed by Ironshore is in excess of coverage afforded by the Safety National policy and other primary insurance policies; and (4) Ironshore has no obligation to pay any of the state court judgment until the Safety National and other primary policies are fully exhausted. TSCLP brought a cross-claim against Safety National for a declaratory judgment on Safety National’s coverage obligations with respect to the McGowan judgment.

Safety National filed a motion to dismiss, which the district court construed as a motion for summary judgment. The parties proceeded to file extensive summary judgment stipulations. Safety National filed a motion for summary judgment subject to its motion to dismiss, arguing the Safety National policy does not cover McGowan’s state court claim. Ironshore filed a response and cross-motion for summary judgment.

On September 17, 2014, after the state court entered final judgment for McGowan, the federal district court, pursuant to its discretion under 28 U.S.C. § 2201(a), declined to exercise jurisdiction over the declaratory judgment action and dismissed Ironshore’s claims against Safety National and TSCLP. Ironshore filed a motion to reconsider or, in the alterative, amend the judgment to make clear that the complaint was dismissed without prejudice. The district court denied the motion to reconsider, but granted the motion to amend. The court, pursuant to the parties’ stipulation, dismissed without prejudice TSCLP’s cross-claim against Safety National.


A district court considering a declaratory judgment action “must engage in a three-step inquiry.” Orix Credit Alliance, Inc. v. Wolfe, 212 F.3d 891, 895 (5th Cir.2000). The “district court must determine: (1) whether the declaratory judgment action is justiciable; (2) whether the court has the authority to grant the declaratory relief; and (3) whether to exercise its discretion to decide or dismiss the action.” Sherwin–Williams Co. v. Holmes Cnty., 343 F.3d 383, 387 (5th Cir.2003). This Court reviews the dismissal of a declaratory judgment action for abuse of discretion. Orix, 212 F.3d at 895.

At issue in this case are the first and third steps; the district court had authority to decide the suit because “diversity jurisdiction [is] present and the Anti–Injunction Act d[oes] not apply because there was no pending state court action between [the plaintiff] and any of the declaratory judgment defendants,” Sherwin–Williams, 343 F.3d at 387–88.

Because we conclude that this case is justiciable, we have jurisdiction under 28 U.S.C. § 1291.

*163 A. Justiciability (Ripeness)

The first step of the Orix inquiry, justiciability, “[t]ypically ... becomes a question of whether an ‘actual controversy’ exists between the parties to the action.” 212 F.3d at 895. Stated differently, “[a] declaratory judgment action is ripe for adjudication only where an ‘actual controversy’ exists.” Id. at 896. “[T]he case or controversy requirement of Article III of the United States Constitution is identical to the actual controversy requirement under the Declaratory Judgment Act.” Texas v. W. Publ’g Co., 882 F.2d 171, 175 (5th Cir.1989), quoted in Orix, 212 F.3d at 896.

This Court has held that “[t]he threat of litigation, if specific and concrete, can indeed establish a controversy upon which declaratory judgment can be based.” Orix, 212 F.3d at 897. Additionally, “[t]he fact that the filing of the lawsuit is contingent upon certain factors does not defeat jurisdiction over a declaratory judgment action.” Id. “However, in determining whether a justiciable controversy exists, a district court must take into account the likelihood that these contingencies will occur.” Id.

The Supreme Court has held that an actual case or controversy existed when an insurer brought a declaratory judgment action regarding its liability to the insured for an underlying state court action while the underlying action was still pending. See Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 271–74, 61 S.Ct. 510, 85 L.Ed. 826 (1941) (“That the complaint in the instant case presents such a controversy is plain.”). We have similarly found an actual controversy under the DJA in an insurer’s suit seeking a declaration that it was not liable for damages in a pending underlying state court action. See AXA Re Prop. & Cas. Ins. Co. v. Day, 162 Fed.Appx. 316, 318–19 (5th Cir.2006) (per curiam) (finding an actual controversy in a declaratory judgment action on commercial-automobile liability insurance coverage when the underlying state wrongful-death action was still pending).

In light of these cases and the fact that McGowan has already obtained a judgment in the Texas court, the instant case presents “a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment,” Md. Cas. Co., 312 U.S. at 273, 61 S.Ct. 510.

Safety National argues that this case is not justiciable because under Texas law indemnity actions are not justiciable until “the underlying suit is concluded.” See Northfield Ins. Co. v. Loving Home Care, Inc., 363 F.3d 523, 529 (5th Cir.2004) (“Generally, Texas law only considers the duty-to-indemnify question justiciable after the underlying suit is concluded....” (citing Farmers Tex. Cnty. Mut. Ins. Co. v. Griffin, 955 S.W.2d 81, 84 (Tex.1997))). The Texas Supreme Court had long held that under the Texas Constitution, “there was no justiciable controversy regarding the insurer’s duty to indemnify before a judgment has been rendered against an insured.” Griffin, 955 S.W.2d at 83. After the Texas Constitution was amended, the Texas Supreme Court recognized an exception to this rule “when the insurer has no duty to defend and the same reasons that negate the duty to defend likewise negate any possibility the insurer will ever have a duty to indemnify.Id. at 84.

The plain language of Griffin forecloses Safety National’s argument. Griffin emphasized that, generally, “there [is] no justiciable controversy regarding the insurer’s duty to indemnify before a judgment has been rendered against an insured.” 955 S.W.2d at 83 (emphasis added); see *164 also id. at 84 (“If ... coverage issues other than the duty to defend are always nonjusticiable, it would be impossible for an insurer to make a good faith effort to fully resolve coverage before a judgment has been rendered in the underlying claim.” (emphasis added)); Collier v. Allstate Cnty. Mut. Ins. Co., 64 S.W.3d 54, 62 (Tex.App.—Fort Worth 2001, no pet.) (“[T]he duty to indemnify only arises after an insured has been adjudicated, whether by judgment or settlement, to be legally responsible for damages in a lawsuit.” (emphasis added) (citing Griffin, 955 S.W.2d at 82–83)). “Judgment” plainly refers to a liability determination at the trial-court level rather than the exhaustion of appellate remedies. Because we conclude that this case is justiciable under Griffin,6 we turn to the third step of the Orix inquiry—the district court’s discretion. Sherwin–Williams Co., 343 F.3d at 387.

B. Discretion

In Wilton v. Seven Falls Co., the Supreme Court held that the discretionary standard of Brillhart v. Excess Insurance Co. of America, 316 U.S. 491, 62 S.Ct. 1173, 86 L.Ed. 1620 (1942), rather than a more stringent test, governs a district court’s decision to hear a declaratory judgment action. 515 U.S. 277, 289–90, 115 S.Ct. 2137, 132 L.Ed.2d 214 (1995). “Under Brillhart, a district court ‘should ascertain whether the questions in controversy between the parties to the federal suit ... can be better settled in the proceeding pending in state court.’ ” Sherwin–Williams, 343 F.3d at 389 (alteration in original) (quoting Brillhart, 316 U.S. at 494, 62 S.Ct. 1173). Although each circuit applies a slightly different formulation of the Brillhart test, “each circuit’s formulation addresses the same three aspects of the analysis”: “the proper allocation of decision-making between state and federal courts”; fairness; and efficiency. Id. at 390–91.

This Court uses the nonexclusive factors listed in St. Paul Insurance Co. v. Trejo, III. CONCLUSION

This case presents an actual controversy for the purposes of the DJA. Moreover, the district court abused its discretion in its application of the Trejo factors. For the foregoing reasons, we REVERSE the district court and REMAND for further proceedings.



Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.


The second coverage provision, “Occupational Injury Benefits,” reimburses TSCLP for benefits paid to its employees under the ERISA benefits plan.


The parties to the federal action stipulated that McGowan’s fifth amended complaint is the operative complaint in the state court action.


See generally 75 Tex. Jur. 3d Workers’ Compensation § 139 (2015) (“Recovery of workers’ compensation benefits is the exclusive remedy of an employee covered by workers’ compensation insurance....”).


The court granted leave for the defendants to file an interlocutory appeal. The Tenth Court of Appeals in Waco denied their request for interlocutory appeal.


Ironshore’s original and first amended complaints also named Tractor Supply Company as a defendant, but the parties stipulated to Tractor Supply Company’s dismissal. Ironshore then filed a second amended complaint that does not name Tractor Supply Company as a party. Tractor Supply Company is a Delaware corporation that serves as the general partner of TSCLP.


Because Safety National’s argument that we lack jurisdiction under Griffin fails, we do not address Ironshore’s argument that Griffin does not affect justiciability under the DJA because it is “merely an application of state prudential justiciability rules,” rather than an Article III requirement.


See infra Part II(B)(7).


See supra Part II(B)(1).


In Agora we also considered the fact that the case “had been pending in federal court for over a year when the district court dismissed it sua sponte.” 149 F.3d at 373.


As noted previously, the district court did not explicitly address this issue.

United States Court of Appeals,

Fifth Circuit.

Nicole BURTON, Plaintiff–Appellant


FREESCALE SEMICONDUCTOR, INCORPORATED; Manpower of Texas, L.P.; Manpower, Incorporated; Transpersonnel, Incorporated, Defendants–Appellees.

No. 14–50944.


Aug. 10, 2015.

Attorneys & Firms

*225 Kell Asher Simon, Attorney (argued), Law Offices of Kell A. Simon, Austin, TX, for Plaintiff–Appellant.

Shafeeqa Watkins Giarratani, Attorney (argued), Adam Troy Schramek, Norton Rose Fulbright US, L.L.P., Austin, TX, for Defendant–Appellee Freescale Semiconductor, Incorporated.

Scott A. Brutocao (argued), Cornell Smith & Mierl, L.L.P., Jamie Richards Whitney, Attorney, Austin, TX, Michael R. Phillips, Esq., Brian Spang, Esq., McGuireWoods, L.L.P., Chicago, IL, for Defendants–Appellees Manpower of Texas, L.P., Manpower, Incorporated and Transpersonnel, Incorporated.

Appeal from the United States District Court for the Western District of Texas.

Before REAVLEY, OWEN, and HIGGINSON, Circuit Judges.


REAVLEY, Circuit Judge:

Plaintiff–Appellant Nicole Burton appeals the district court’s grant of summary judgment in favor of Defendant–Appellees Freescale Semiconductor, Inc. (“Freescale”), Manpower of Texas, L.P., Manpower, Inc., and Transpersonnel, Inc. (collectively, “Manpower”). Burton brought a claim under the Americans with Disabilities Act (the “ADA”) alleging discriminatory termination and a claim under the Texas Labor Code alleging retaliatory termination based on her filing of a workers’ compensation claim. The district court ruled that the defendants had asserted legitimate reasons for terminating Burton and that she failed to make an adequate showing that these reasons were pretextual.

Concluding that the evidence, viewed in Burton’s favor, is sufficient to raise an inference of pretext, we reverse the district court’s grant of summary judgment with respect to Burton’s ADA claim. Burton’s retaliation claim, however, fails as a matter of law because Freescale did not provide Burton’s workers’ compensation coverage and because there is no evidence that Manpower acted with a retaliatory motive.


Freescale is a designer and manufacturer of microchips that relies, in part, on temporary employees provided by Manpower, a staffing agency. Beginning in 2009, Burton worked for Freescale as one such “temp” employee. In 2009 and 2010, Burton received generally positive-to-neutral performance reviews. In 2011, Burton’s fortunes with Freescale turned. First, in January, she broke a wafer, the platform upon which microchips are seated during construction. The incident was reported and documented, and Burton received counselling from a Manpower supervisor, Jerry Rivera. Then, on March 1, Burton inhaled chemical fumes while on the job. Nothing came of the incident initially, but on April 12, she reported chest pains at work and was ultimately attended to by the company medical department and then EMS. Due to heart palpitations, she visited the emergency room on May 9 and 17. In mid-June, Burton came to believe that her health condition was caused by the exposure to fumes. She notified Freescale and then, a day later, Manpower. These reports effected *226 the filing of a workers’ compensation claim.

Roughly two weeks later, in “late June-ish,” Freescale’s Bruce Akroyd decided to terminate Burton. According to Akroyd, a June 28th incident where Burton was caught using the Internet represented the “final” straw.1 Nonetheless, there is conflicting evidence on whether Akroyd actually knew about the Internet incident when he decided to terminate Burton and whether the Internet incident actually postdated the decision to terminate Burton. Akroyd did not directly supervise Burton and relied on reports of underlings in determining she should be terminated. It remains unclear how he reached his decision, when he reached his decision, and upon what basis he reached his decision.

While the decision to terminate Burton’s assignment was made in late June, she was not terminated until late July. The delay between the decision and its implementation was attributable to the need to hire and train her replacement. When the time to actually terminate Burton drew near, Manpower requested supporting documentation from Freescale. Akroyd passed the request to Freescale supervisors, who began generating retrospective “documentation” and (in contrast to previous practices) meticulously cataloging Burton’s every shortcoming. On July 25, Manpower recommended against termination based on the paltry documentation and the recency of Burton’s workers’ compensation claim, but Freescale insisted.

The next day, Rivera and Manpower’s regional director Joleen Dorsey conducted a conference call with Freescale’s Akroyd and HR representative Denise Chefchis to discuss Burton’s firing and establish a “communication plan.” Thereafter, Dorsey instructed Rivera to terminate Burton’s assignment and to inform her it was based on four discrete incidents, at least two of which occurred after the decision to terminate her had already been made.

After her termination, Burton filed a claim with the EEOC, and Manpower and Freescale responded. The companies informed the EEOC that Burton was fired based on the four reasons previously provided to Burton at the time of her termination, this despite the fact that (at least) two of those reasons post-dated the actual termination decision.

Ultimately, Burton sued alleging her termination was discriminatory in violation of the ADA and retaliatory in violation of section 451.001(1) of the Texas Labor Code. The defendants moved separately for summary judgment, and judgment was granted in their favor. Burton now appeals.


“We review a district court’s grant or denial of summary judgment de novo, applying the same standard as the district court.” Robinson v. Orient Marine Co., 505 F.3d 364, 365 (5th Cir.2007). 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 factual “issue is ‘genuine’ if the evidence is sufficient for a reasonable jury to return a verdict for the non-moving party,” and “ ‘material’ if its resolution could affect the outcome of the action.” Burrell v. Dr. Pepper/Seven Up Bottling Grp., Inc., 482 F.3d 408, 411 (5th Cir.2007).



“The ADA prohibits an employer from discriminating against a ‘qualified individual *227 with a disability on the basis of that disability.’ ” E.E.O.C. v. LHC Grp., Inc., 773 F.3d 688, 694 (5th Cir.2014) (quoting 42 U.S.C. § 12112(a)). “When a plaintiff can offer only circumstantial evidence to prove a violation of the ADA, this court applies the McDonnell Douglas burden-shifting framework.” E.E.O.C. v. Chevron Phillips Chem. Co., LP, 570 F.3d 606, 615 (5th Cir.2009). Under this framework, the plaintiff must make a prima facie showing of discrimination. Id. Once the showing is made, a presumption of discrimination arises, and the employer must “articulate a legitimate non-discriminatory reason for the adverse employment action.” See id. The burden then shifts to the plaintiff to show the articulated reason is pretextual. Id.


This case requires us to go through each step of the McDonnell Douglas framework at some length. First, however, we consider the defendants’ threshold arguments that they are not proper defendants. Freescale argues that it was not Burton’s “employer” under the ADA, while Manpower argues it is not liable because Freescale was the driving force behind any discriminatory termination. These arguments fail.


In determining whether Freescale was Burton’s employer under the ADA it is appropriate to apply the “hybrid economic realities/common law control test.”2 See Deal v. State Farm Cnty. Mut. Ins. Co. of Texas, 5 F.3d 117, 118–19 (5th Cir.1993) (quoting Fields v. Hallsville Indep. Sch. Dist., 906 F.2d 1017, 1019 (5th Cir.1990)). “The right to control an employee’s conduct is the most important component of this test,” and we consider “whether the alleged employer has the right to hire and fire the employee, the right to supervise the employee, and the right to set the employee’s work schedule.” Id. at 119. “The economic realities component of our test has focused on whether the alleged employer paid the employee’s salary, withheld taxes, provided benefits, and set the terms and conditions of employment.” Id.

Freescale argues it is not Burton’s employer because it did “not have authority to hire, fire, supervise or directly administer disciplinary procedures” to her. The evidence undermines this assertion. Freescale had the right to demand Burton’s termination from the assignment. Freescale supervised Burton. Complaints against her were made by Freescale personnel, while her nominal Manpower supervisor, Arthur Flores, worked primarily at a different Freescale location and never observed her while she worked. Freescale employees completed performance reviews of Burton’s work. On-the-job corrections and admonishment were delivered by Freescale employees. Most fundamentally, it was Freescale that decided and insisted that Burton be fired. Burton has offered adequate evidence of an employment relationship.

With respect to the economic realities inquiry, Freescale asserts that it “does not handle payroll, withhold taxes, provided [sic ] benefits, workers compensation insurance, or set the terms and conditions of employment for Manpower temps.” These considerations favor Freescale, but on balance and cognizant of our mandate to “emphasize” *228 the common law control test, we find they do not change the outcome. See Juino v. Livingston Parish Fire Dist. No. 5, 717 F.3d 431, 434 (5th Cir.2013). The competing tests are in equipoise, and our emphasis on the common law control test is dispositive.


Manpower argues it cannot be liable for Burton’s termination because Akroyd, a Freescale manager, made the actual decision to terminate her. This argument derives from our framing of the “right to control” inquiry: “which entity made the final decisions regarding employment matters relating to the person claiming discrimination?” Vance v. Union Planters Corp., 279 F.3d 295, 301 (5th Cir.2002) (quoting Skidmore v. Precision Printing & Packaging, Inc., 188 F.3d 606, 617 (5th Cir.1999)). Manpower has already admitted, however, that it was Burton’s employer. The “right to control” test is not implicated, and we will not misread Vance to mean, as Manpower argues, that in cases of joint employment only the individual decisionmaker’s employer is the employer subject to liability under the ADA.

Manpower argues with more force that “merely being a ‘joint employer’ does not automatically impose liability for employment decisions under the ADA.” For this assertion, Manpower cites Whitaker v. Milwaukee County, a recent Seventh Circuit decision. See 772 F.3d 802 (7th Cir.2014). We find Whitaker persuasive and agree with Manpower as to the law.

Other circuits “have held explicitly that establishing a ‘joint employer’ relationship does not create liability in the co-employer for actions taken by the other employer.” Whitaker, 772 F.3d at 811 (citing Torres–Negrón v. Merck & Co., 488 F.3d 34, 41 n. 6 (1st Cir.2007)); Llampallas v. Mini–Circuits, Lab, Inc., 163 F.3d 1236, 1244–45 (11th Cir.1998). In Whitaker, the Seventh Circuit agreed with the First and Eleventh Circuits as well as the EEOC that a joint employer must bear some responsibility for the discriminatory act to be liable for an ADA violation. See id. at 812. The relevant EEOC Enforcement Guide concludes as follows:3

The [staffing] firm is liable if it participates in the client’s discrimination. For example, if the firm honors its client’s request to remove a worker from a job assignment for a discriminatory reason and replace him or her with an individual outside the worker’s protected class, the firm is liable for the discriminatory discharge. The firm also is liable if it knew or should have known about the client’s discrimination and failed to undertake prompt corrective measures within its control.

EEOC, No. 915.002, Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms, at 2260 (1997) (emphasis added).

Like the Seventh Circuit, “[w]e have no reason to depart from the course set by the other circuits and the view expressed by the agency charged with the administration of the statute.”4 *229 Whitaker, 772 F.3d at 812. A staffing agency is liable for the discriminatory conduct of its joint-employer client if it participates in the discrimination, or if it knows or should have known of the client’s discrimination but fails to take corrective measures within its control.5 See id.

Whitaker involved joint employers—Milwaukee County and the State of Wisconsin’s Department of Health Services. Id. at 803. Milwaukee County, however, “had no involvement in” the employment decisions underlying the plaintiff’s claims and “no authority to override those decisions.” Id. Ultimately, the Seventh Circuit found “nothing in the record suggests that the County participated in the alleged discriminatory conduct or failed to take corrective measures within its control.” Id. at 812.

Whitaker is distinguishable with respect to the facts that plainly matter. The undisputed evidence is that Manpower personnel carried out the actual termination. Further, Manpower terminated Burton’s assignment after professing a belief that the termination was legally dubious. In an effort to address what Manpower’s Dorsey labeled a “potential legal risk,” Manpower participated in the creation and execution of a “communication plan” pursuant to which it could reasonably be inferred that both Burton and the EEOC were given false reasons for her termination.

Manpower’s argument that contractually it had “no choice but to comply” with Freescale’s demand that Burton’s assignment be terminated does not alter this analysis. First, a purported contractual obligation to fire an employee on a discriminatory basis is no defense. As an employer, Manpower had an independent obligation to comply with the ADA, and a contractual obligation to discriminate would be unenforceable.6 See Panasonic Co., Div. of Matsushita Elec. Corp. of Am. v. Zinn, 903 F.2d 1039, 1041 (5th Cir.1990). Second, under the contract, Manpower expressly agreed to follow all federal laws, “to comply with the Americans with Disabilities Act,” and to ensure “workers assigned to perform services at Freescale are not deprived of any rights provided for under the ADA.” This obligation to follow the law surely qualifies any obligation to end assignments at the will of the client.7 In re Velazquez, 660 F.3d 893, 897 (5th Cir.2011) (“When interpreting a contract, a court ‘should examine and consider the entire writing in an effort to harmonize *230 and give effect to all the provisions of the contract so that none will be rendered meaningless.’ ” (quoting Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983))).


We now consider whether Burton established a prima facie case of discrimination. Like the district court, we conclude that she carried her burden. Only Freescale argues otherwise.

To make out a prima facie case, a plaintiff in an ADA employment action must show:

(a) she is disabled, has a record of having a disability, or is regarded as disabled, (b) she is qualified for her job, (c) she was subjected to an adverse employment action on account of her disability or the perception of her disability, and (d) she was replaced by or treated less favorably than non-disabled employees.

Chevron Phillips Chem. Co., LP, 570 F.3d at 615.

Here, the only issue is whether Burton was “regarded as” disabled by Freescale. She can prevail by establishing “she has been subjected to an action prohibited under [the ADA] because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.” 42 U.S.C. § 12102(3)(A). “This ‘whether or not’ language was enacted as part of the ADA Amendments Act of 2008 [ (“ADAAA”) ].” Mendoza v. City of Palacios, 962 F.Supp.2d 868, 871 (S.D.Tex.2013). The ADAAA overrules prior authority “requiring a plaintiff to show that the employer regarded him or her as being substantially limited in a major life activity.” Dube v. Texas Health & Human Servs. Comm’n, Case No. SA–11–CV–354–XR, 2012 WL 2397566, at *3 (W.D.Tex. June 25, 2012); see also Neely v. PSEG Texas, Ltd. P’ship, 735 F.3d 242, 245 (5th Cir.2013).

We have not yet determined what it means to be “regarded as” impaired under the ADAAA,8 but section 12102(3)(A) is clear, as is its application here. Burton need only show that her “employer perceived [her] as having an impairment” and that it discriminated against her on that basis. Mendoza, 962 F.Supp.2d at 871. Freescale argues it was “not aware Burton had a disability.” We find no shortage of contrary evidence.

A qualifying “impairment” includes “[a]ny physiological disorder or condition” that affects, among other body systems, respiratory and cardiovascular systems. Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 726 n. 5 (5th Cir.1995) (quoting 29 C.F.R. § 1630.2(h)). Freescale concedes “some evidence was raised showing that Akroyd was aware that Burton had received medical treatment.” That is true and just begins to scratch the surface. Burton reported her job-related injury to Freescale personnel on June 11, 2011. In an e-mail dated the next day, she advised Freescale’s Coy Clydene, “I got an ok from the [emergency room] to come back to work today, [but] I started having palpitations a few hours after we spoke.” *231 Akroyd testified he learned of Burton’s alleged injury in mid-June and “immediately” instructed his staff to “look at it” because it was “important.” A mid-June e-mail between Burton’s supervisors entitled “Nicole Burton (absences)” discussing how to handle a pair of health-related absences backed by doctor’s notes provides further evidence that Freescale had the knowledge necessary to regard Burton as impaired.

Then, when Freescale worked to compile “documentation” justifying its decision to terminate Burton, it collected multiple reports from supervisors explicitly tying complaints about Burton’s conduct to her asserted medical needs. These e-mails extensively discuss Burton’s health condition and reference her need “to sit down for a bit,” “chest pains,” and trouble breathing. This evidence adequately establishes, at least at the summary judgment stage, that Freescale regarded Burton as disabled under the ADAAA.


The burden shifts to Burton’s employers to set forth a legitimate, nondiscriminatory reason for her termination. “[T]o meet its burden of production under McDonnell Douglas, an employer must articulate a nondiscriminatory reason with ‘sufficient clarity to afford the employee a realistic opportunity to show that the reason is pretextual.” Patrick v. Ridge, 394 F.3d 311, 317 (5th Cir.2004) (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 255, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207 (1981)). We have repeatedly held that a charge of “poor work performance” is adequate when coupled with specific examples. See Feist v. Louisiana, Dep’t of Justice, Office of Att’y Gen., 730 F.3d 450, 455 (5th Cir.2013); Medina v. Ramsey Steel Co. Inc., 238 F.3d 674, 684–85 (5th Cir.2001);

Here, the charge is poor work performance. In its brief, Freescale provides the following specific examples:

• In an October 2009 performance review, Burton received critical work assessments arguably amounting to evidence of poor work performance.

• A subsequent performance review indicating Burton had “snapped at” a trainer,” and “tend[ed] to wander out of the work area.”

• In January of 2011, Burton broke a wafer.

• On June 28, 2011, Burton used the Internet while at work.

• As reflected by Burton’s final performance review and in e-mails dated in July, between April and June of 2011, Burton improperly leaned on workstations, failed to keep her nose covered, failed to escalate issues, and failed to proactively complete tasks absent direction.

We “are not to assess the employer’s credibility or the truthfulness of its reason at this stage of the inquiry.” See Patrick, 394 F.3d at 318. Nonetheless, we consider only pre-decision examples of alleged poor work performance. See id. at 318–20.

As the ultimate issue is the employer’s reasoning at the moment the questioned employment decision is made, a justification that could not have motivated the employer’s decision is not evidence that tends to illuminate this ultimate issue and is therefore simply irrelevant at this stage of the inquiry. Especially in the context of this case—the employer’s summary judgment motion to dismiss—such an offering is tantamount to offering no reason at all.

Id. at 319–20 (footnote omitted). In short, “after-acquired knowledge ” cannot be the basis of the decision. Id. at 319 (emphasis added).

*232 The parties argue over Patrick ‘s application to this case. Burton argues that, under Patrick, the charge of “poor performance” is a nonspecific statement that fails to discharge the defendants’ burden under the McDonnell Douglas framework.9 Freescale argues the case “has no application” at all.

Burton’s argument is foreclosed by Medina and Feist, which found an allegation of poor work performance adequate where supported by specific examples. Freescale, however, is wrong to assert that Patrick does not apply. Under Patrick, we must discard any purported reasons for terminating Burton that the decisionmaker uncovered only after reaching the decision to terminate. See id. at 319–20. Thus, post-decision incidents are irrelevant, as are pre-decision incidents unknown to the decisionmaker at the time of the decision. See id. at 319 (rejecting an employer’s attempt to “advance[e] after-acquired knowledge as a justification for its decision”).

It is beyond dispute that Burton’s initial performance reviews predated the decision to terminate her, and the broken wafer was also documented and known prior to the decision. Additionally, there is evidence Akroyd knew of Burton’s unauthorized Internet use when he decided to fire her.10 Indeed, he testified the incident represented the “final” straw.

There is no evidence, however, that the sundry additional complaints were known to Akroyd when he decided to fire Burton. The evidence shows these incidents were uncovered only after Akroyd took steps to retrospectively justify the termination decision. For example, Burton’s first truly poor performance review (which included accusations that she had failed to cover her nose, failed to “take the initiative,” “been found leaning on tools,” and “sometimes leaves the area”) was issued, at the earliest on June 29 but the evidence suggests it was not provided to Akroyd until July 26. Similar accusations were first leveled in e-mails specifically solicited by Akroyd to provide “documentation” justifying his decision.

Freescale attempts to strengthen its position by arguing that the decision to terminate Burton “was reinforced by continuing performance issues while Burton’s replacement was being trained, including Burton’s failing to run a quality check and leaving her machine sitting.” These incidents “could not have motivated” Akroyd’s decision and are “simply irrelevant at this stage of the inquiry.” See Patrick, 394 F.3d at 319. Rather, we “take a snapshot at the moment of the allegedly discriminatory act.”11 See id. at 319–20 (quoting Sabree v. United Bhd. of Carpenters & Joiners Local No. 33, 921 F.2d 396, 404 (1st Cir.1990)).

*233 Our reasoning comports with Nasti v. CIBA Specialty Chemicals, Corp., a case involving two distinct decisions to terminate an employee. See 492 F.3d 589, 593–94 (5th Cir.2007). In that case, the plaintiff’s employer decided “in late 2003” that, based on performance issues, it would release her in January 2004. Id. at 592. “Between the time when [ ] management decided to terminate Nasti in late November 2003 and efforts to arrange a meeting with Nasti in January 2004,” Nasti’s supervisor conducted an investigation into a suspect expense report, concluded Nasti had submitted false documentation, and promptly fired her on that intervening basis. Id. Thus, discovery of the false report served as the basis for a subsequent “separate, independent decision [ ]” to terminate the employee, and we accepted the employer’s assertion that it had fired Nasti for submitting a false report. Id. at 593–94.

Manpower argues that Nasti applies here, but there is no evidence of a “separate, independent” decision to fire Burton based on conduct occurring in July. There is evidence of one decision in late June. Incidents occurring after that single decision are irrelevant.

By asserting Burton was fired based on poor performance and citing specific examples predating the termination decision and known to the decisionmaker at the time of the decision, the defendants have managed to shift the burden back to Burton. Purported examples of post-decision poor performance, however, are not evidence of a legitimate, nondiscriminatory reason for her termination.


Burton must now “produce substantial evidence indicating that the proffered legitimate nondiscriminatory reason is a pretext for discrimination.” Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir.2003). “Evidence is substantial if it is of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions.” Id. at 579 (internal quotations and citations omitted). “An explanation is false or unworthy of credence,” and thus pretextual, “if it is not the real reason for the adverse employment action.” Id. at 578.

An employee seeking to show pretext must rebut each discrete reason proffered by the employer. See Jackson v. Watkins, 619 F.3d 463, 467 (5th Cir.2010). Here, the sole given reason is “poor performance.” The McDonnell Douglas framework has fallen away, “and the issue becomes discrimination vel non.Chevron Phillips Chem. Co., LP, 570 F.3d at 615. We ask whether Burton’s work performance was “the real reason” for her termination. Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 899 (5th Cir.2002).

We begin by revisiting the specific examples of poor performance set forth by Freescale and will then consider Burton’s remaining arguments. See Laxton, 333 F.3d at 580 (first analyzing the employer’s specific alleged justifications, then considering “other evidence that undermines the overall credibility of [the employer’s] proffered justification”).



Performance Reviews. According to Freescale, “in October 2009, Burton’s Freescale manager reported Burton’s poor performance to Manpower: Burton’s ‘attendance [was] below expectations,’ and that ‘[e]arly in the year, [Burton] was counseled for her poor communication with co-workers, she was not being cooperative and was not accepting responsibility *234 for her performance.’ ” (Alterations in original.) Freescale draws on a 2009 performance review for this evidence of poor performance and also relies on Burton’s subsequent performance review, which repeats these same comments verbatim and adds the impressions of a new supervisor, Sharon Honerlah, who noted Burton “snapped at her trainer on one occasion” and “tend[s] to wander.”12 Honerlah concluded she “would rate [Burton] on the border between Meeting and Below Expectations.”

Freescale’s reliance on these performance reviews is facially dubious. As an initial matter, we discard the reference to Burton’s attendance; Burton was not fired for missing work. Further, the criticisms regarding Burton’s attitude and communication are offset by the very next sentence of the review: “Since our dialogue she has made significant improvement in customer focus and communication with her co-workers.” Further, the reviews are arguably generally positive. The reviews state Burton “has great work ethic and desire to learn more,” that she “frequently volunteers” for overtime, and that “[s]he is very flexible, able to move when needed.” In the first review, Burton rated “Exceeds Expectations” on two categories and “Below Expectations” in only one—attendance, which again, is not the reason for her firing. In the second, she scored “Meets Expectations” in every category.

Further, it is hard to swallow Freescale’s reliance on 2009 and 2010 performance reviews for a mid–2011 termination, especially considering that Burton was a temp. We do not doubt the relevance of a poor performance review, even if dated, but under these circumstances, a reasonable juror could certainly look askance at Freescale’s contention that these performance reviews played any role in the determination to fire Burton. This is especially true given that no one at Freescale thought to supply Manpower with the reviews when it requested supporting documentation.


The Broken Wafer. Freescale contends that it based its decision to fire Burton in part on the broken wafer. Burton points out that she worked an additional six months after the incident, meaning it was “clearly not a sufficient justification for her termination.”

To the extent Freescale argues merely that the incident is some evidence of poor performance, we agree. Because the broken wafer was not proffered as an independent basis for termination, however, this single substantiated shortcoming does not doom Burton’s endeavor to show pretext. See Laxton, 333 F.3d at 580 (commencing the pretext analysis by noting the plaintiff had admitted to a pair of company violations).


Unauthorized Use of the Internet. Akroyd testified that Burton’s unauthorized use of the Internet was the “final” straw. Burton concedes that her Freescale supervisor, Patricia Alvarez, genuinely believed she improperly used the Internet (although she testified she was not actually *235 on the Internet). Thus, the dispute is not whether the incident happened or whether it violated company policy. The dispute is whether Burton’s alleged use of the Internet was a “real reason” for her termination. See Sandstad, 309 F.3d at 899. If Akroyd did not actually know about the unauthorized Internet use at the time he decided to fire Burton (or if it had not even happened yet), it was not a true reason for her termination. Patrick, 394 F.3d at 319–20.

There is conflicting evidence with respect to Akroyd’s knowledge at the time of his decision to terminate Burton, and we therefore conclude Burton has cast doubt on her employers’ assertion that unauthorized Internet use was a reason for her termination.

Akroyd first testified that he did not know if Burton’s unauthorized use of the Internet was “one of the things” that motivated his decision. He then testified, however, that he learned of the infraction from Alvarez, verbally, on the day he decided to terminate Burton. Alvarez, however, testified that she never talked to Akroyd about Burton’s performance. She also testified she did not know who made the recommendation to terminate Burton and did not participate in any conversation about terminating Burton’s assignment. Following a break in the deposition, Alvarez then changed her testimony to say she in fact recommended Burton’s termination—but that she believed she did so “slightly before” the June 28th Internet incident, and it was not to Akroyd at all but rather to one “Shawn Stroud,” her “section manager.”

Gee v. Principi is comparable. See 289 F.3d 342 (5th Cir.2002). There, the plaintiff sought to show pretext by showing decisionmaker Lee Gibbs’ “explanation for [the adverse employment action had] been disingenuous and inconsistent.” Id. at 347. We relied on “discrepancies in Gibbs’ own testimony,” his shifting recollections, and conflicting testimony of other witnesses in reversing the district court’s grant of summary judgment. See id. at 347–48.

Here, Alvarez and Akroyd have both told changing stories. Even after changing their stories, the testimony remains in conflict. Even Alvarez’s corrected testimony, if credited, puts Akroyd’s version of events into doubt. The stories are simply irreconcilable. In its brief, Freescale attempts to rehabilitate Akroyd’s testimony but can do no better than to claim that “as the deposition progressed, it is undisputed that Akroyd’s memory was refreshed and he recalled and clarified that the Internet usage” was the final straw. Based on this record, a jury would be entitled to find that either Alvarez, Akroyd, or both lacked credibility. See Laxton, 333 F.3d at 582. Burton has “cast doubt on [Akroyd’s] explanation, thereby enabling a reasonable factfinder to conclude that it was false.”13 Gee, 289 F.3d at 348.

Freescale objects to this parsing of testimony as “creative slicing and dicing.”14 *236 The district court was in accord, reasoning that “[a] person cannot be expected to be able to recall every single detail from two-and-one-half years prior” and rejecting Burton’s “attempts to pick apart each person’s deposition testimony line by line.” Similarly, the district court reconciled Alvarez’s changing testimony by concluding that she changed it because “she wanted her testimony to reflect the correct answer.”

This approach is inconsistent with fundamental rules governing summary judgment. By choosing which testimony to credit and which to discard, “the court improperly ‘weigh[ed] the evidence’ and resolved disputed issues in favor of the moving party.” Tolan v. Cotton, ––– U.S. ––––, 134 S.Ct. 1861, 1866, 188 L.Ed.2d 895 (2014) (per curiam) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986)). While utilization of the McDonnell Douglas framework requires fact-intensive analysis, it does not alter basic summary judgment law, which must control and restrain the inquiry.

Freescale cites Appelbaum v. Milwaukee Metropolitan Sewerage District, a Seventh Circuit decision holding that “[o]ne can reasonably infer pretext from an employer’s shifting or inconsistent explanations for the challenged employment decision.” 340 F.3d 573, 579 (7th Cir.2003). According to Freescale, this case involves no such shifting explanation because “the rationale for ending Burton’s assignment has been consistent with every witness: poor performance.” Freescale also cites Williams v. Columbus Metropolitan Housing Authority, an unpublished Sixth Circuit case that rejected a plaintiff’s attempt to show pretext through the inconsistent testimony of the defendant’s witnesses where the cited inconsistencies had “no bearing” on the adverse employment decision. 90 Fed.Appx. 870, 876–77 (6th Cir.2004).

These cases have no application here. We are not, at present, saying the inconsistency in and of itself raises an inference of pretext; we are saying that there is doubt Akroyd knew of Burton’s Internet use when he made the termination decision. If Akroyd had no such knowledge, proffer of the violation as a reason for her termination is false and therefore necessarily pretextual. See Burrell, 482 F.3d at 412. Thus, unlike in Williams, the testimony here bears upon Akroyd’s explanation for terminating Burton. Burton has successfully raised a fact question regarding whether Akroyd knew of her alleged improper Internet use at the time he decided to fire her.


Post–Decision Additional Reasons. Consistent with Freescale’s argument that post-decision events “reinforced” its decision to terminate Burton’s assignment, Manpower argues that Burton’s post-decision “continued poor performance after the decision was made, but before that decision was reviewed and re-confirmed, does not render the poor performance reason ‘false.’ ” Of course, any continued poor performance does not suggest pretext in any way. Evidence of a sudden and unprecedented campaign to document Burton’s deficiencies and thus justify a decision that had already been made, however, could raise an inference of pretext. See Goudeau v. Nat’l Oilwell Varco, L.P., 793 F.3d 470, 476–77 (5th Cir.2015); Laxton, 333 F.3d at 582.

In Goudeau, a recent age discrimination case, we reversed a grant of summary judgment in favor of a defendant-employer *237 where, among other things, the employer had neglected its own disciplinary policy. See 793 F.3d at 476–77. We then then identified “evidence bear[ing] more directly on pretext than a failure to follow steps in a progressive discipline policy”—the plaintiff’s contention “that the employer manufactured steps in the disciplinary policy by issuing written warnings to paper his file after it had decided to fire him.” Id. In Laxton, we found evidence of discrimination sufficient where “the jury may have reasonably concluded that [Gap supervisors] solicited and exaggerated complaints from Laxton’s assistant managers, issued a Written Warning and a Final Written Warning,” and made “an effort to compile a laundry list of violations to justify a predetermined decision to terminate Laxton.” 333 F.3d at 582.

Here, there is direct evidence that, after deciding to fire Burton, Freescale (with Manpower’s participation) acted to create an exculpatory paper trail. After Manpower’s Rivera asked Akroyd for documentation supporting the decision to terminate Burton’s assignment, Akroyd directly solicited Burton’s supervisors to provide “documentation.” Alvarez responded with an e-mail that begins “Here is what I have on Nicole Burton” and sets forth “a laundry list of violations to justify [the] predetermined decision to terminate” Burton. See id. Further, it appears Burton’s only truly negative performance review was completed and submitted just after the decision to fire her and was provided to Akroyd after he requested documentation.

Notwithstanding the fact that the requested “documentation” postdated the decision to terminate Burton, Manpower accepted it as adequate. Moreover, Manpower’s Dorsey instructed Rivera to tell Burton she was being fired for breaking the wafer, unauthorized use of the Internet, and a pair of “protocol violation[s]” that occurred on July 19 and 25 respectively. Manpower thus relied on the retrospective laundry list of violations Freescale supervisors created at Akroyd’s behest. A fair-minded juror could reasonably conclude this is evidence of pretext.

Indeed, the inference of pretext is stronger here than it was in Laxton and Goudeau. Here, (1) the defendants’ e-mails show direct solicitation of belated “documentation” from Burton’s supervisors, (2) there is evidence that Freescale had previously been lackadaisical about recording and reporting Burton’s alleged deficiencies, and (3) the negative reports generated by the defendants were incorporated into a misleading “communication plan” regarding Burton’s release.


We now consider “evidence that undermines the overall credibility of [the defendants’] proffered justification.” See Laxton, 333 F.3d at 580.


Burton argues that both defendants supplied the EEOC with a misleading explanation regarding her termination and that this constitutes evidence of pretext. We agree.

A jury may view “erroneous statements in [an] EEOC position statement” as “circumstantial evidence of discrimination.” Miller v. Raytheon Co., 716 F.3d 138, 144 (5th Cir.2013). We have also found an employer’s rationale “suspect” where it had “not remained the same” between the time of the EEOC’s investigation and the ultimate litigation. See Burrell, 482 F.3d at 415.

According to Manpower’s EEOC position statement:

*238 The reasons for the termination of the assignment included the following:

• January 2011—broken wafer

• June 28, 2011—unauthorized use of internet

• July 19, 2011—qualification of tools were not being performed

• July 25, 2011—wafer boats were not balanced

(Emphasis added).

According to Freescale’s EEOC position statement, “Freescale asked that Ms. Burton, a demonstrably lower performer, be reassigned by Manpower after multiple incidents of poor performance in 2011, including improper handling of wafers in the fab, internet usage during work hours, and a misprocessing incident immediately before her release.” (Emphasis added.)

Freescale asserts the statements are not misleading because “Defendants found additional performance problems during the month it took to end [Burton’s] assignment,” which were added to the “list of performance deficiencies.” Manpower contends “the Defendants’ EEOC position statements simply reflect the undisputed history of [Burton’s] performance deficiencies.” The district court found the post-decision events to be legitimate “additional” reasons for Burton’s termination.

We have already observed that, as a matter of law, a purported reason for a decision that postdates the actual decision is necessarily illegitimate. Patrick, 394 F.3d at 318. This is true as a matter of law but also as a matter of common sense. A jury would be entitled to find the defendants’ proffer to the EEOC disingenuous and evidence of pretext. See Miller, 716 F.3d at 144. This is especially true given that the asserted post-decision reasons were potentially manufactured during the defendants’ documentation collection effort and especially true given that the letters were perhaps drafted in accordance with the “communication plan” settled upon by the defendants after identifying a “legal risk.”15 Further, Freescale’s statement to the EEOC that it requested Burton’s termination “after ... a misprocessing incident immediately before her release” is flatly untrue.

The stories being told to this court and to the EEOC are also inconsistent. See Burrell, 482 F.3d at 415. Manpower and Freescale peddled Burton’s alleged July deficiencies as reasons for her termination only before discovery uncovered the termination decision had been made in June. Now, Burton’s alleged failings in July are deemphasized and we are presented with dated performance reviews. The shift is not dramatic but, given the circumstances, it is at least some evidence of pretext.

Freescale attempts to distinguish between inconsistent “reasons” and inconsistent “examples of continuous performance problems.” Specifically, Freescale argues:

At no point has Freescale proffered any other reason for releasing Burton besides performance. [citation.] And Burton cites no authority holding an employer must at all times recite the exact same examples of continuous performance problems—especially where the list is lengthy and on-going—in order to legally terminate an employee.

We do not hold that shifting “examples” of poor performances necessarily indicate pretext. Where the “examples” first given have proven illegitimate, however, a jury *239 could reasonably infer that the shift in explanation is significant.

For the reasons given and drawing all reasonable inferences in favor of the nonmovant, we cannot agree with the district court’s conclusion that the defendants provided the EEOC with harmless “additional” reasons. The defendants provided the EEOC with purported “reasons” for Burton’s termination postdating the decision to terminate her. This gives rise to an inference of pretext.


Burton argues that the defendants’ “failure to produce contemporaneous written documentation of performance problems is evidence of pretext” and, relatedly, that their “failure to follow protocol for reporting performance issues lends yet further support to the conclusion that Defendants invented a reason to terminate Ms. Burton.” Freescale argues there is “no evidence” of a “policy stating that all performance deficiencies need to be documented” and contends “Burton rests her argument on generic testimony from witnesses that documentation is important and a good practice.”

We do not know what the term “generic testimony” means,16 but there is plainly evidence of a policy calling for prompt reporting and documentation of poor performance involving Manpower temps. Freescale’s Akroyd testified that “the supervisor[s], if they have any type of concerns with performance or behaviors, they are to contact the Manpower supervisor.... [T]hey give that information to the Manpower supervisor, and the Manpower supervisor documents it.” Manpower’s Dorsey testified to the same effect and that it was Manpower policy to require such documentation. This uncontradicted testimony comes from the defendants’ witnesses and is corroborated by documentary evidence. In a July 25 e-mail to Dorsey and other Manpower personnel, Rivera noted the lack of documentation relating to Burton’s performance. In a July 26 e-mail “recapp [ing]” the defendants’ conference call regarding Burton’s “performance history,” Dorsey stated she had “stress[ed] the importance” of reviewing “OEM”17 reports promptly “so that performance issues can be identified immediately” and thanked the recipient (a Freescale employee) for “also encouraging timely feedback from Freescale supervisors to Manpower.”18

In Laxton, we found a failure to produce “contemporaneous written documentation of any employee complaints, despite testimony that the corporation abides by rigorous record-keeping policies” created an inference that charges of employee *240 complaints were false. 333 F.3d at 580. Similarly, in Evans v. City of Houston, we found a lack of documentation significant where testimony established that such documentation should exist and where the only evidence of an employee’s “alleged ‘checkered’ employment history” consisted of internal memoranda drafted after the plaintiff “engaged in the protected activity and, indeed, after” the adverse employment decision. 246 F.3d 344, 355–56 (5th Cir.2001).

Here, as in Laxton and Evans, we face a lack of contemporaneous documentation coupled with evidence that such documentation should exist. As in Evans, such documentation was created after Burton came within the protections of the ADA and after the termination decision. Under the circumstances, this is additional circumstantial evidence of pretext.

According to Manpower, a lack of documentation is only probative of pretext where the employee challenges whether the incidents in question ever occurred. As Manpower argues, in Laxton, we relied on the suspicious lack of contemporaneous documentation in holding “that the jury could have reasonably found to be false” Gap’s accusation that “employees lodged numerous complaints against Laxton.” 333 F.3d at 580. We agree with Manpower to this limited extent: a lack of contemporaneous documentation, alone, is not evidence of pretext; the employee must also demonstrate why the absence of documentation matters. Otherwise, there would be no basis upon which a jury could infer pretext.

Here, the lack of documentation matters because the defendants charge Burton with a “history of performance problems” but can show only a pair of dated, neutral performance reviews, a single mistake, and (maybe) unauthorized use of the Internet. Their attempt to buttress the charge by compiling documentation after the fact only highlights the relevance of the absent documentation.


Burton argues that “[t]he closeness in time of Ms. Burton’s disclosure of her impairments to her termination is also evidence of pretext.” (Emphasis added.) Freescale answers by claiming that “Burton asserts that temporal proximity alone allows her to survive summary judgment.” (Emphasis added.) According to Manpower, “Burton is unable to cite a Fifth Circuit case holding that ‘temporal proximity ... is evidence of pretext’ because that is not the law.” The defendants have apparently misread Burton’s arguments. Burton argues that temporal proximity matters because she has adduced other significant evidence of pretext. We agree.

“Timing standing alone is not sufficient absent other evidence of pretext.” Boyd v. State Farm Ins. Cos., 158 F.3d 326, 330 (5th Cir.1998). “ ‘[T]he combination of suspicious timing with other significant evidence of pretext, can be sufficient to survive summary judgment.’ ” Evans, 246 F.3d at 356 (quoting Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 409 (5th Cir.1999)).

We have already identified significant evidence of pretext, meaning the only issue now is whether the decision to terminate Burton’s assignment was sufficiently close in time to the employer’s perceived discovery of Burton’s medical condition to raise an inference of pretext. Plainly so. The decision to terminate Burton was made in late June, roughly two weeks after Burton’s mid-June formal report of her health problems.

Citing Rogers v. Bromac Title Services, LLC, 755 F.3d 347, 354 (5th Cir.2014), Manpower further argues that “[w]hatever *241 evidentiary force temporal proximity may have is eviscerated in cases where, as here, the adverse employment action is based on events which occur after the protected activity.”19 Manpower missteps here. We have been told by Freescale that Burton was fired for poor performance dating back to her 2009 performance review and continuing until her unauthorized Internet use—the final straw. Manpower mostly agrees and yet also repeatedly asserts that later events influenced the decision by “confirm[ing]” its propriety—this despite fervent denials of any responsibility for the decision and despite Akroyd’s testimony that later events did not influence his decision. Manpower’s statement that Burton’s termination was “based on events” occurring after her mid-June disclosure of work-related health problems is highly problematic because it is inconsistent with claims she was fired due to a long history of performance problems and for breaking the wafer in January. Only Burton’s unauthorized use of the Internet corresponds with Manpower’s new timeline. On this record, the assertion that Burton was fired “based on events” that occurred after her mid-June disclosure of health problems looks a lot like a shift in rationale constituting further evidence of pretext.20 See Burrell, 482 F.3d at 415.

As we must, we have viewed the evidence in the light most favorable to Burton and drawn all reasonable inferences in her favor. Based on the foregoing survey of the evidence and in compliance with “the Supreme Court’s mandate in Reeves not to substitute our judgment for that of the jury and not to unduly restrict a plaintiff’s circumstantial case of discrimination,” we conclude Burton has produced substantial evidence of pretext. See Russell v. McKinney Hosp. Venture, 235 F.3d 219, 223 n. 4 (5th Cir.2000) (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)).


Because the district court found insubstantial evidence that the reasons proffered by Manpower and Freescale for Burton’s termination were pretextual, it granted summary judgment in their favor as to Burton’s retaliation claim based on section 451.001(1) of the Texas Labor Code (“Section 451.001”). Burton argues that her showing of pretext resurrects the claim. Similarly, Manpower wraps its Section 451.001 arguments into its pretext arguments. Freescale argues Burton failed to establish a prima facie case of retaliation and also that it is an improper defendant as a matter of law. We consider only the second argument.


Texas law prohibits discharge of employees based on the filing of a workers’ compensation *242 claim. Tex. Labor Code Ann. § 451.001(1). “[E]mployers that are nonsubscribers to the Texas Workers’ Compensation Act” may not be sued under Section 451.001. See Texas Mexican Ry. Co. v. Bouchet, 963 S.W.2d 52, 53 (Tex.1998).

Here, both defendants are, generally speaking, subscribers. Manpower provides workers’ compensation for Burton and other temps, while Freescale provides the same for its permanent employees. The Texas Supreme Court has not ruled on whether a plaintiff-employee may bring a Section 451.001 retaliation claim against a joint employer that does not provide her workers’ compensation coverage. Accordingly, we must make an Erie guess. “[O]ur job is to ‘predict’ how the court will rule.” McCaig v. Wells Fargo Bank (Texas), N.A., 788 F.3d 463, 472 (5th Cir.2015).

The Texas Supreme Court has defined the scope of Section 451.001 by its intended protections. See Bouchet, 963 S.W.2d at 56 (“Because the Legislature stated article 8307c was intended to protect ‘persons who bring Workmen’s Compensation claims,’ only subscribers can be subject to article 8307c claims.” (analyzing and applying the predecessor statute to Section 451.001 and later noting the same conclusion would obtain under Section 451.001)). Thus, in Bouchet, the court held “nonsubscribers to the Texas Workers’ Compensation Act” cannot be sued for an alleged violation. Id. at 53. This holding, the court observed, was “consistent with our statement in City of LaPorte v. Barfield, 898 S.W.2d 288, 293 (Tex.1995): ‘Forbidding retaliation against an employee for seeking monetary benefits under the Worker’s Compensation Law presupposes that the employer is a subscriber.’ ” Id. at 56.

Consistent with the rationale underlying Bouchet and by analogy to the term “employer,” we conclude it is not enough to be a subscriber generally. Burton cannot bring a Section 451.001 retaliation claim against a defendant that did not provide her workers’ compensation benefits.

In any given Workers’ Compensation Act case, it is not enough that a plaintiff be an employee generally and a defendant be an employer generally; there must be an employer-employee relationship for these terms to take on meaning. Garza v. Exel Logistics, Inc., 161 S.W.3d 473, 476 (Tex.2005). “[I]t is obvious that an employer of one or more employees is not the employer of every person who is an employee.” Id. To borrow Garza ‘s illustration, “General Motors has more than one employee, but it is not the employer of Ford Motor Company employees, at least not as a general proposition.” Id. Inquiries into whether a given defendant is an “employer” therefore include an individualized component—whether the defendant was an “employer” of the plaintiff-employee.

We predict the Texas Supreme Court would rule the same holds true with respect to the term “subscriber.” Forbidding retaliation against an employee for seeking monetary benefits under the Workers’ Compensation Act presupposes that the employer provides the employee’s workers’ compensation benefits and therefore has some stake in the claim. Cf. Bouchet, 963 S.W.2d at 56; City of LaPorte, 898 S.W.2d at 293.

Burton takes the position that as her “employer” and a workers’ compensation subscriber, generally, Freescale is a proper defendant.21 This approach ignores *243 the rationale of Bouchet, the structure of the Workers’ Compensation Act, and the purpose of Section 451.001.

The Workers’ Compensation Act offers employers the choice of whether to provide workers’ compensation insurance. See Wingfoot Enters. v. Alvarado, 111 S.W.3d 134, 137–38 (Tex.2003). By its structure, employers are “encourage [d]” to choose coverage. See id. at 142. For employers, the primary benefit of obtaining workers’ compensation coverage is the promise of “immunity from suit for most work-related injuries.” Hughes Wood Prods., Inc. v. Wagner, 18 S.W.3d 202, 206 (Tex.2000). This immunity comes in the form of the Workers’ Compensation Act’s proviso that recovery of workers’ compensation benefits “is the exclusive remedy” of employees “covered by workers’ compensation insurance coverage.” Tex. Labor Code Ann. § 408.001.

Consistent with this structure, the Texas Supreme Court has held that employers are only “covered by workers’ compensation insurance coverage” for purposes of the exclusive remedy provision if their workers’ compensation policy covers the injured plaintiff-employee. Garza, 161 S.W.3d at 481. In other words, to claim immunity from a plaintiff-employee’s lawsuit, it is not enough to point to coverage generally; the employer must show coverage as to the injured plaintiff-employee.

The purpose of Section 451.001 is “to protect persons entitled to benefits under the Workers’ Compensation Act and to prevent them from being discharged for filing claims to collect those benefits.” Trico Techs. Corp. v. Montiel, 949 S.W.2d 308, 312 (Tex.1997) (per curiam); see also Kerrville State Hosp. v. Fernandez, 28 S.W.3d 1, 9 (Tex.2000). The provision has no application where its purpose is not implicated—as where the defendant-employer is a nonsubscriber. See Bouchet, 963 S.W.2d at 56

Under Burton’s approach, despite having no stake in Burton’s workers’ compensation claim, Freescale would be subject to liability because it made the unrelated and legislatively “encourage[d]” decision to provide coverage for its permanent employees. See Wingfoot Enters., 111 S.W.3d at 142. Imposition of liability on this basis strikes us as purposeless and cuts against “the Act’s decided bias in favor of employers electing to provide coverage for their employees.” See id. at 140. Moreover, it is inconsistent with reasoning employed in multiple Texas Supreme Court cases including Bouchet, Wingfoot, and Garza. Freescale did not provide workers’ compensation coverage for Burton and is not subject to her Section 451.001 retaliation claim.


To recover under Section 451.001, “an employee must show that the employer’s discriminatory action ‘would not have occurred when it did had the worker’s *244 compensation claim not been filed.’ ” 197 F.3d 777, 780 (5th Cir.1999) (quoting Stevens v. Nat’l Educ. Ctrs., Inc., 990 S.W.2d 374, 380 (Tex.Ct.App.1999)). “This purely factual question centers on the employee’s conduct and the employer’s motivation.” Id.

We have held that there is evidence that Manpower participated in the discriminatory termination of Burton, both by carrying out the actual termination and by participating in any related cover-up. That evidence, however, does not give rise to an inference that Burton was terminated because she filed a workers’ compensation claim. Here, the evidence is that Freescale was the driving force behind Burton’s termination. Manpower terminated Burton’s assignment based on Akroyd’s request and in spite of the workers’ compensation claim. Dorsey testified that she recommended a final warning instead of termination because it would give Burton a chance to improve and also “because of the time, the correlation to Ms. Burton’s worker comp claim.” Contemporaneous e-mails between Freescale and Manpower officials corroborate this claim. No evidence contradicts it.

Burton had “the burden of establishing a causal nexus between [her] filing of a workers’ compensation claim and [her] discharge.” 9 F.3d 383, 386 (5th Cir.1993). She has not carried that burden, and summary judgment was properly granted with respect to the Section 451.001 retaliation claim.


In conclusion, we agree with the retaliation judgment but disagree with the summary judgment of the ADA claim. The judgment is REVERSED in part and AFFIRMED in part. For further proceedings on the ADA claim, the case is REMANDED.



Burton asserts she was not using the Internet, but does not dispute that her Freescale supervisor genuinely believed she had been using the Internet.


Deal and Fields dealt with Title VII and the Age Discrimination in Employment Act rather than the ADA. Nevertheless, “[g]iven the substantial overlap in the analytical framework among the employment discrimination statutes,” the test is applicable. See St. John v. NCI Bldg. Sys., Inc., 537 F.Supp.2d 848, 859 (S.D.Tex.2008).


We have repeatedly consulted the EEOC Compliance Manual when interpreting the ADA. See, e.g., Chevron Phillips Chem. Co., LP, 570 F.3d at 616; Rogers v. Int’l Marine Terminals, Inc., 87 F.3d 755, 759 (5th Cir.1996).


We have held that Freescale and Manpower were joint employers and therefore have no occasion to consider whether they might be a single employer. In Torres–Negrón, the First Circuit found a triable issue as to whether Merck–PR and Merck–Mexico (both subsidiaries of Merck & Co.) were a single employer, meaning the illegal conduct of one could be imputed to the other. 488 F.3d at 41. In a footnote, the First Circuit expressly recognized, as we do today, that “a finding that two companies are an employee’s ‘joint employers’ only affects each employer’s liability to the employee for their own actions, not for each other’s actions.” Id. at 41 n. 6. We have no occasion to adopt or disavow Torres–Negrón but note it is consistent with our holding.


Citing Vance, Manpower urges us to hold that a staffing agency must be “instrumental” in making the decision to terminate the employee. We have already observed that Vance dealt only with the antecedent issue—whether a given defendant is an employer under the ADA. We again reject the invitation to misread Vance and instead hew to the rule adopted by the Seventh Circuit.


The contract is to “be governed by and construed according” to Texas law.


Recall that a staffing agency is liable for discriminatory conduct only if (1) it participated in the discrimination or (2) it knew or should have known about the client’s discrimination and failed to undertake prompt corrective measures within its control. See Whitaker, 772 F.3d at 811–12. Thus, while Manpower’s contract argument fails for the reasons given here, there are any number of scenarios in which the joint-employer client’s unilateral action could violate the ADA but not trigger liability as to the staffing agency. This is not vicarious liability, and a staffing agency with no way of correcting or preventing its client’s discriminatory conduct will not be liable for an ADA violation. Here, we have found there are material fact issues with respect to Manpower’s direct culpability.


In Kemp v. Holder, we held plaintiffs proceeding under the “regarded as” definition “must show either that ‘(1) a covered entity mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities, or (2) a covered entity mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities.’ ” 610 F.3d 231, 237 (5th Cir.2010) (quoting Sutton v. United Air Lines, Inc., 527 U.S. 471, 489, 119 S.Ct. 2139, 2149–50, 144 L.Ed.2d 450 (1999)). The lawsuit in Kemp was filed prior to enactment of the ADAAA but we noted a “claim might fare differently if the ADAAA applied.” Id. at 236.


In Patrick, we rejected as “a rank generalization” an employer’s vague explanation that the plaintiff was not “sufficiently suited” for a certain position. 394 F.3d at 317.


Burton argues that Akroyd did not know of her alleged unauthorized use of the Internet until after he decided to fire her. At this stage of the inquiry, the employer bears “the burden of production, not persuasion,” and the proffered reason is sufficient if supported by admissible evidence. Vaughn v. Woodforest Bank, 665 F.3d 632, 636 (5th Cir.2011). Below, we consider contrary evidence as part of the inquiry into whether the reason given for Burton’s termination was pretextual.


Manpower goes to great lengths to explain what it dubs “Snapshot Theory” and argue that it is merely an “approach [that] makes sense in some cases.” Manpower is incorrect. There is no doctrinally complex “theory” at play here. Patrick stands for the elementary proposition that, by definition, “reasons” must precede and influence the decision in question. An ex post facto reason is no reason at all.


The actual dates of these performance reviews are unclear. In its brief, Freescale tells us that the initial review was conducted October, 2009 and that the second review covers “2010 and early 2011,” but the evidence does not appear to support this latter claim. Honerlah’s comments indicate that the review period did not span a calendar year: she references “Q3” and “10/30” and states her review is based on “4 weeks of performance.” Even if the review period commenced October 30, it would extend only through November.


Freescale attempts to distinguish Gee by asserting “the Court in Gee noted [the] evidence of a glowing review given the plaintiff, which lauded her ‘excellent communication skills,’ and flexibility in accommodating others” and asserts “[n]o evidence of glowing performance reviews is raised by Burton.” This purported distinction has nothing to do with the credibility of Freescale’s witnesses. For what it is worth, we again note that Burton had reviews praising her “great work ethic and desire to learn more,” stating she “frequently volunteers” for overtime, and that “[s]he is very flexible, able to move when needed.” These excerpts are at least as glowing as the snippets quoted in Gee.


Manpower argues, based entirely on its own parsing of Akroyd’s deposition transcript, that there were no inconsistencies. This argument is better suited for a jury and entirely neglects Alvarez’s testimony.


Given that the representations to the EEOC mimic Dorsey’s instructions to Rivera regarding what he should tell Burton while terminating her assignment, and given that Dorsey’s e-mails providing Rivera’s script and noting the “communication plan” were sent within fifteen minutes of each other, such an inference would be reasonable.


Disparaging the evidence is a theme throughout Freescale’s brief. In addition to labelling Burton’s accounts of deposition testimony as “creative slicing and dicing” and writing off the testimony regarding the defendants’ policies as “generic,” Freescale also complained that “Burton attempts to pick apart verbiage used in Manpower’s EEOC Position Statement.” We do not find this sort of dismissive bluster compelling in the slightest.


The acronym OEM appears to refer to the performance reviews completed by Freescale supervisors.


When Burton broke a wafer in January of 2011, the incident was documented by Freescale and reported to Manpower. Manpower then counselled Burton, who never repeated the mistake. This incident appears to have been handled precisely as the evidence suggests each alleged incident should have been handled. Not only does it provide the employer with contemporaneous evidence of employee shortcomings, it also provides the employee with “the chance to explain her conduct or improve it.” Laxton, 333 F.3d at 581.


Rogers does not stand for that stark proposition. The fallacy of the suggested rule is laid bare when one considers a typical race-based discrimination claim where the “protected” status is known at the time of hiring. According to Manpower’s reading of Rogers, plaintiffs in such cases would never be able to point to temporal proximity as additional evidence of discrimination because proffered justifications for terminating or not promoting the plaintiff would, in every case, “occur after the protected activity.” This is not the rule.


Manpower’s version of the story—that the decision to fire Burton was reconfirmed (by who, we are not told) just prior to her termination based in part on incidents occurring in July—would, if supported by evidence, likely create a material factual dispute precluding summary judgment. There simply is no way to analyze the legitimacy of an employer’s proffered reasons to terminate an employee if the basis of the decision is unclear, the timing of the decision is disputed, and the ultimate decisionmaker is unidentified.


“[I]n determining if a general employee of a temporary employment agency is also an employee of a client company for purposes of the Act, [Texas courts] consider traditional indicia, such as the exercise of actual control over the details of the work that gave rise to the injury.” Garza, 161 S.W.3d at 477. Further, “[t]he purposes underlying the Workers’ Compensation Act and its definitions of ‘employer’ and ‘employee’ indicate that the general employer is, and should be, an ‘employer’ of a temporary worker even if a client company directs the details of that employee’s work when the employee is injured.” Wingfoot Enters. v. Alvarado, 111 S.W.3d 134, 143 (Tex.2003). The evidence supporting Burton’s allegations of joint employment under the ADA also supports her claim that Manpower and Freescale were co-employers under the Workers’ Compensation Act. But since Freescale is not the “subscriber ” responsible for Burton’s workers’ compensation coverage, the question of employment is beside the point. See Bouchet, 963 S.W.2d at 56.

United States Court of Appeals,

Fifth Circuit.

Chad McQUAGGE, Plaintiff–Appellant



No. 14–10556.


Feb. 24, 2015.

Attorneys & Firms

*977 Jason Smith, Law Offices of Jason Smith, Fort Worth, TX, for Plaintiff–Appellant.

John W. McChristian, Ray, McChristian & Jeans, P.C., Fort Worth, TX, for Defendant–Appellee.

Appeal from the United States District Court for the Northern District of Texas, USDC No. 4:13–CV–125.

Before JOLLY, WIENER, and CLEMENT, Circuit Judges.



The district court entered summary judgment for Defendant–Appellee Heil Trailer International Company (“Heil Trailer”), concluding that Plaintiff–Appellant Chad McQuagge’s negligence claim was barred under the exclusive remedy provision of the Texas Workers’ Compensation Act (“TWCA”). McQuagge appealed, contending that the record did not establish that he was Heil Trailer’s employee and thus barred from asserting his claim. We affirm.


Heil Trailer is a manufacturing company that constructs specialty transport trailers. Aerotek, Incorporated (“Aerotek”) is a staffing agency that recruits skilled workers to fill temporary positions. Heil Trailer *978 and Aerotek entered into a services agreement (the “Agreement”) by which Aerotek agreed to supply contract employees to Heil Trailer. The Agreement provided that “[i]t shall be [Heil Trailer’s] responsibility to control, manage and supervise the work of the Contract Employees assigned to [Heil Trailer] pursuant to this Agreement.” McQuagge, a skilled welder, joined Aerotek as an employee and shortly thereafter started working for Heil Trailer pursuant to the Agreement. A few months later, McQuagge suffered a severe injury while working at Heil Trailer when he attempted to move a three-thousand pound barrel at the direction of Chris Strunk, a Heil Trailer employee. McQuagge filed for benefits under Aerotek’s workers’ compensation policy; he also filed a state law negligence claim against Heil Trailer in Wise County District Court, Texas. Heil Trailer removed the action to district court based on diversity of citizenship.

Heil Trailer filed a motion for summary judgment, contending that McQuagge’s negligence claim should be dismissed because as an employee covered by workers’ compensation, he was barred from asserting a tort claim against Heil Trailer under the exclusive remedy provision of the TWCA.1 McQuagge countered that he was not Heil Trailer’s employee because Aerotek retained control over his work. Relying on the undisputed evidence that “McQuagge was performing [Heil Trailer’s] work, using [Heil Trailer’s] equipment, [and] under the instruction and supervision of [Heil Trailer’s] employees,” the district court held that McQuagge was Heil Trailer’s employee at the time of injury and barred from asserting a negligence claim against Heil Trailer under the TWCA. McQuagge timely appealed.


We review de novo a district court’s grant of summary judgment, applying the same standard as the district court.2 Summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.3 A court must view all facts in the light most favorable to the non-movant when ruling on a motion for summary judgment.4 When the non-moving party fails to offer proof on an essential element of its case, the court must find that no genuine issue of fact exists and enter summary judgment for the moving party.5

The TWCA provides that workers’ compensation is the “exclusive remedy” for an employee who suffers a work-related injury.6 An “employee” is a person in the service of another under a contract of hire, whether express or implied, or oral or written; an “employer” is “a person who makes a contract of hire, employs one or more employees, and has workers’ compensation insurance coverage.”7 An employer has workers’ compensation insurance *979 coverage if it has either (1) obtained an approved insurance policy, (2) secured the payment of compensation through self-insurance as provided under the TWCA, or (3) obtained coverage provided by a governmental entity.8 The TWCA provides that an employee may not assert common-law negligence claims against an employer unless the employer has elected not to subscribe to workers’ compensation insurance.9

An employee may have more than one employer for purposes of the TWCA.10 When determining whether an employee of a temporary employment agency such as Aerotek is also the employee of the client employer such as Heil Trailer, Texas courts look to “traditional indicia, such as the exercise of actual control over the details of the work that gave rise to the injury.”11 In Garza v. Exel Logistics, Incorporated, the Supreme Court of Texas considered three factors to determine whether a supplied temporary worker qualified as an employee of the client employer at the time of injury: (1) Was the employee working on the client’s premises, (2) did his work further the client’s day-to-day business, and (3) was he acting at the specific direction of the client.12

The district court determined that McQuagge was Heil Trailer’s employee. We agree. Not only did the Agreement assign Heil Trailer responsibility to “control, manage and supervise the work” of temporary workers supplied to it, the undisputed evidence is that McQuagge was working under the supervision of Heil Trailer employees and on Heil Trailer premises at the time of his injury.13 Under Texas law, Heil Trailer exercised sufficient control over the details of McQuagge’s work for McQuagge to qualify as its employee.14

Although McQuagge urges on appeal that the application of the nine-pronged “borrowed servant” test in Brown v. Union Oil Company of California creates a question of material fact, Brown is distinguishable. First, we considered in Brown whether a supplied employee was a borrowed servant for the purposes of tort immunity under the Longshore and Harbor Workers’ Compensation Act, *980 33 U.S.C. § 905(a).15 Brown did not address the “borrowed servant” doctrine under Texas law, which is our task here. Second, assuming arguendo that we were required to apply the nine factors enumerated in Brown, our application of those factors would nevertheless support the conclusion that McQuagge was Heil Trailer’s employee.16 As we emphasized in Brown, the central question is whether the client employer exercised “control” over the work performed that gave rise to the injury.17 Nothing in the record controverts the district court’s conclusion that Heil Trailer controlled the details of McQuagge’s day-to-day work, including the work that he was performing at the time of his injury. Although McQuagge asserts on appeal that the Agreement limited Heil Trailer’s control to welding and reasonably associated activities, foreclosing our consideration of the facts and circumstances of his injury, this contention is not supported by the law.18 The district court correctly determined that McQuagge was Heil Trailer’s employee,19 and that his exclusive remedy against Heil Trailer was for workers’ compensation benefits.20 The judgment of the district court is therefore AFFIRMED.



Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.


It is undisputed that Heil Trailer maintained workers’ compensation insurance.


Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 163 (5th Cir.2006).




Id. at 163–164.


Id. at 164.


Texas Workers’ Compensation Act, TEX. LAB.CODE. ANN. § 408.001(a) (West 2005); see ExxonMobil Corp. v. Kirkendall, 151 S.W.3d 594, 599 (Tex.Ct.App.2004).


TEX. LAB. § 401.012 (employee); id. § 401.011(18) (employer).


Id. § 401.011(44); see also Port Elevator–Brownsville v. Casados, 358 S.W.3d 238, 242 (Tex.2012) (listing three ways that client employers can obtain workers’ compensation insurance).


TEX. LAB. § 408.001(a).


W. Steel Co. v. Altenburg, 206 S.W.3d 121, 123 (Tex.2006).


Garza v. Exel Logistics, Inc., 161 S.W.3d 473, 477 (Tex.2005); see Poyner v. Mitsubishi Power Sys. Ams., Inc., 482 Fed.Appx. 887, 888 (5th Cir.2012) (per curiam) (“To determine whether an employee was a borrowed servant at the time of the accident, Texas courts inquire into which employee had the right to control the employee.”).


Garza, 161 S.W.3d at 477; see Bliss v. NRG Indus., 162 S.W.3d 434, 437 (Tex.Ct.App.2005) (applying three factors considered in Garza ); see also Calvasina v. Wal–Mart Real Estate Bus. Trust, 13

McQuagge confirmed that, while working at Heil Trailer, his actions were under the direction of Heil Trailer supervisors. McQuagge was acting on Heil Trailer employee Chris Strunk’s order to move a barrel at the time of his injury.


See Garza, 161 S.W.3d at 477 (holding that temporary worker was “employee” for purposes of the TWCA because he was working on client company’s premises, his work furthered the client company’s day-to-day business, and the client company issued an order that resulted in his injury).


Brown v. Union Oil Co. of Cal., 984 F.2d 674, 676 (5th Cir.1993) (per curiam).


We observed in Brown that although “[n]o single factor, or combination of them, is determinative ... this court has considered the first factor—control—to be the central factor.” Id.


Id. We reject McQuagge’s contention that, because he was a welder, Heil Trailer did not exercise control over his work. See W. Steel Co., Inc. v. Altenburg, No.13–02–450–CV, 2008 WL 963677, at *2–3 (Tex.Ct.App. Apr. 10, 2008) (rejecting welder’s assertion that he was not an employee of the client company because he brought his own tools and was not under direct supervision of client company employee at the time of injury); see also Garza, 161 S.W.3d at 476–477 (“[W]e consider traditional indicia, such as the exercise of actual control over the details of the work that gave rise to the injury”). Moreover, undisputed evidence that Aerotek controlled McQuagge’s paychecks, human resources functions, and benefits is immaterial to the ultimate question of control under Texas law. Bliss, 162 S.W.3d at 436–437; see Wingfoot Enters. v. Alvarado, 111 S.W.3d 134, 138–39 (Tex.2003) (holding that worker was employee of staffing firm’s client company despite the fact that the staffing firm paid the worker and managed other human resources duties).


McQuagge asserts that “[w]hen there is a contractual provision regarding the extent of control, that provision governs,” and therefore Heil Trailer is precluded from relying on the facts and circumstances of the case. Reply Brief at 2 (citing Castillo v. United States Fire Ins. Co., 953 S.W.2d 470, 473–74 (Tex.Ct.App.1997)). But the appellate court in that case did consider the facts and circumstances, along with the contract, and therefore Castillo does not limit our analysis to the Agreement.


McQuagge asserts two other points in support of his appeal: (1) Because Aerotek was an independent contractor, McQuagge was also an independent contractor; and (2) Heil Trailer falsified work training documents after his injury. McQuagge does not cite any case law that supports his “independent contractor” theory of recovery. Nor does he connect the alleged falsification of records to whether Heil Trailer exercised control over his day-to-day work; if anything, it supports concluding that Heil Trailer controlled his work.


See TEX. LAB. § 408.001(a); Port Elevator–Brownsville, 358 S.W.3d at 243.