Costello v. Bank of America (Tex.App.- Houston [14th Dist.] Dec. 11, 2007)(Seymore)
(employment law discharge, summary judgment for employer affirmed, worker's compensation retaliation
The Bank presented summary judgment proof that Costello was not discharged
because she filed a workers' compensation claim. In refuting the Bank's proof,
Costello failed to present circumstantial evidence showing that (1) those making the
termination decision had knowledge of the workers' compensation claim, (2) the
decision makers expressed a negative attitude toward her injured condition, (3) the
Bank failed to adhere to established company policies, (4) she was treated differently
than similarly situated employees, or (5) the Bank's stated reason for discharge was
false. Accordingly, we hold Costello failed to raise a fact issue supporting a causal
link between her workers' compensation claim and the Bank's decision to terminate
her employment. The judgment of the trial court is affirmed.
AFFIRMED: Opinion by Justice Seymore
Before Justices Anderson, Fowler and Seymore
14-06-00195-CV Mitzie Costello v. Bank of America, N.A.
Appeal from 129th District Court of Harris County (Hon. Grant Dorfman)
M E M O R A N D U M O P I N I O N
This is an appeal from a summary judgment denying Mitzie Costello's claims based on retaliatory discharge
for filing a workers' compensation claim. Bank of America, N.A. terminated Costello's employment on the
basis that she violated the Bank's policy against submitting inaccurate time sheets.
Costello contends the Bank fired her in retaliation for filing a workers' compensation claim. Costello appeals
the summary judgment claiming she raised fact issues as to whether she established a causal link between
her termination and her workers' compensation claim.
I. Summary Judgment Evidence
The Bank submitted affidavits from Tiffany Glende, a Banking Center Service Manager and Frederick
Buckner, the Bank's Regional Manager. The Bank also attached Costello's deposition and the deposition of
Tania Brugger, Costello's immediate supervisor. Copies of Costello's time sheets, written warnings regarding
inaccuracies in her time sheets, the workers' compensation file, and a transcript of the hearing before the
Texas Workforce Commission were also included with the Bank's motion for summary judgment. In response,
Costello submitted her affidavit. Accordingly, the parties presented the following summary judgment
On April 4, 2002, Costello worked as a personal banker in a branch of the Bank. Costello's supervisor, Tania
Brugger, asked her to move some plants inside the bank building. While moving the plants, Costello injured
her back and neck. Costello continued to work until May 9, 2002, when a physician advised her not to return
to work until further notice. However, Costello returned to work because she wanted to finish several
projects. She claimed to have endured mistreatment from her fellow employees and Brugger after returning
to work. When Costello reported the alleged mistreatment to the Bank's personnel center, another employee
advised her to file a workers' compensation claim.
On May 15, 2002, Costello received a written warning regarding attendance and inaccurate time sheet
reporting. At that time, she was placed on notice, pursuant to Bank policy, that her job would be in jeopardy
if her attendance and time sheet accuracy did not improve. On May 21, 2002, Costello stopped working
because of her injury. She returned to work September 23, 2002. Costello's physician specified that she
should not work more than eight hours per day. He also required Costello to remain off work on
Wednesdays and Saturdays in order to attend physical therapy appointments. Costello's hours were
changed to accommodate the doctor's orders. On September 27 and September 30, Costello was verbally
counseled for inappropriate behavior and time management. On September 26, 2002, Brugger sent Costello
home early so that Costello could attend a meeting scheduled for 6:30 that evening without exceeding eight
working hours for the day. The meeting ended at 7:30, and all employees left by 7:45. Brugger and Tiffany
Glende stayed a few minutes later, but left at 8:13 at which time they set the Bank's alarm. When Costello
submitted her time sheet for September 26, 2002, the record indicated that she had worked until 8:45 p.m.
After Glende checked with the alarm company, she informed Brugger that Costello had inaccurately reported
her time. Brugger was leaving on vacation that day, so she instructed Glende to call Frederick Buckner, the
Regional Manager, and the Bank's Personnel Center to determine how to handle Costello's time sheet
Pursuant to Bank policy, Glende called Buckner and explained that the Bank had previously counseled
Costello regarding inaccurate time entries. Buckner recommended that Glende confer with the personnel
center before making a final decision to discharge Costello. According to Glende's affidavit, “time sheet
abuse is not tolerated and is subject to immediate termination.@ Glende further stated in her affidavit that
during her conversation with Buckner, neither party discussed Costello's workers' compensation claim or her
injury. Glende then phoned the personnel center and explained the time sheet inaccuracy to a human
resources representative. The human resources representative recommended that Glende terminate
Costello based on the Bank's policy on time sheet abuse. Based on Buckner's and the personnel center's
recommendations and Glende's own assessment of Costello's time sheet infraction, Glende decided to
discharge Costello. She did not consult with Brugger about the decision. Moreover, Brugger was not
informed until she returned from vacation.
On October 11, 2002, Glende and the Bank's Teller Manager met with Costello and asked for her
explanation of the 8:45 time sheet entry. Costello initially responded she did not recall that night, then stated
the entry must have been a mistake. Glende informed Costello that the Bank had previously warned her that
time sheet inaccuracy was unacceptable and that it was grounds for her immediate termination. In her
affidavit, Glende stated that when her decision to discharge Costello was based entirely on the error
contained on her time sheet. Her workplace injury or claim for workers' compensation benefits had no
bearing on the termination. Glende averred that she was unaware of Costello's workers' compensation claim
when she discharged Costello.
Several months later, Costello sued the Bank contending that she was fired in retaliation for filing a workers'
compensation claim. The Bank filed traditional and no-evidence motions for summary judgment on the
grounds that Costello presented no evidence of a causal link between the filing of a workers' compensation
claim and her termination, or that the Bank's stated reason for discharge was false. The trial court granted
summary judgment without specifying the grounds for its ruling.
II. Standard of Review and Applicable Law
We review a grant of summary judgment under a de novo standard. Valence Operating Co. v. Dorsett, 164
S.W.3d 656, 661 (Tex. 2005). When, as here, the trial court grants summary judgment without specifying the
grounds on which it bases its decision, we must affirm the judgment if any of the grounds presented by the
movant are meritorious. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872-73 (Tex. 2000). We
take as true all evidence favorable to the nonmovant and indulge every reasonable inference and resolve
any doubts in the nonmovant's favor. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex. 2004).
In a traditional motion for summary judgment, the movant has the burden of demonstrating that there is no
genuine issue of material fact and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c);
Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997). If the movant establishes its right to
summary judgment, the burden shifts to the nonmovant to raise a genuine material fact issue sufficient to
defeat summary judgment. See Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995); Lundstrom
v. United Servs. Auto. Ass'n.-CIC, 192 S.W.3d 78, 84 (Tex. App.- Houston [14th Dist.] 2006, pet. denied).
Section 451.001 of the Texas Labor Code prohibits an employer from discharging an employee for filing a
workers' compensation claim in good faith. Tex. Lab. Code Ann. § 451.001 (Vernon 2006). The employee
has the initial burden of demonstrating a causal link between the discharge and the filing of a workers'
compensation claim. Benners v. Blanks Color Imaging, Inc., 133 S.W.3d 364, 369 (Tex. App.- Dallas 2004,
no pet.). The employee need not show he was fired solely because of filing the workers' compensation claim,
but must show that, “but for@ the filing of the claim, the discharge would not have occurred. Haggar Clothing
Co. v. Hernandez, 164 S.W.3d 386, 386 (Tex. 2005).
Once the employee establishes a causal link, the employer bears the burden to rebut the alleged improper
termination by showing that a legitimate reason exists for termination. See Cont'l Coffee Prods. Co. v.
Cazarez, 937 S.W.2d 444, 450-51 (Tex. 1996). Thereafter, to survive a motion for summary judgment, the
burden shifts back to the employee to produce controverting evidence raising a fact issue as to a retaliatory
motive. McIntyre v. Lockheed Corp., 970 S.W.2d 695, 697 (Tex. App.- Fort Worth 1998, no pet.).
An employee may establish a link between termination and the filing of a workers' compensation claim
through circumstantial evidence or through reasonable inferences from the evidence. Cont'l Coffee, 937 S.
W.2d at 451; Lee v. Haynes & Boone, L.L.P., 129 S.W.3d 192, 196 (Tex. App.- Dallas 2004, pet. denied).
Circumstantial evidence sufficient to establish a causal link between termination and filing a workers'
compensation claim may include (1) knowledge of the compensation claim by those making the termination
decision; (2) an expression of a negative attitude toward the employee's injured condition; (3) a failure to
adhere to established company policies; (4) discriminatory treatment in comparison to similarly situated
employees; and (5) evidence that the stated reason for the discharge was false. Cont'l Coffee, 937 S.W.2d
at 451. In addition, temporal proximity between the assertion of a protected right and termination may be
evidence of a causal connection. Fields v. Teamsters Local Union No. 988, 23 S.W.3d 517, 529 (Tex. App.-
Houston [1st Dist.] 2000, pet. denied).
III. Summary Judgment Analysis
Costello contends she has raised fact issues as to whether (1) the decision-makers had knowledge of her
claim, (2) a negative attitude toward her condition was expressed, and (3) the stated reason for the
discharge was false. Costello also contends the temporal proximity between her return to work from her
injury and her termination is sufficient to create a fact issue concerning a causal link. In responding to the
Bank's motion for summary judgment, Costello made the following averments in her affidavit:
Tonia Brugger was my immediate supervisor. After my on the job injury, after I came back to work in
September, 2002, and on more than one occasion Ms. Brugger told me I was a “whiner@, [ ]. I responded
to her that “I'm only just human.@ I did not state this on deposition and recalled it after the deposition was
over. Two weeks after I came back I was terminated. I was an employee for over twelve years, and had been
told on numerous occasions prior to my on the job injury from Tonia Brugger that I was “wonderful@. After
my injury I was written up for seven items on May 15, 2002, after my injury. Some of these alleged items
were prior to my injury. I was even written up for time that I missed due to my on the job injury for being out
on 5/09, 5/10, 5/13, and 5/14. (See exhibit No. 1, a write up that I received from Tonia Brugger on May 15,
2002, less than two months after my injury on April 4, 2002.) Tonia Brugger was present when I was injured
on the job on April 4, 2002, and witnessed my injury.
Tonia Brugger allegedly gave this write up to personnel and I was terminated.
A. Knowledge of the Workers' Compensation Claim
We consider first whether those who decided to discharge Costello knew about her compensation claim.
Glende and Buckner made the termination decision on behalf of the Bank. It is undisputed that Buckner had
no knowledge of Costello's injury. Glende stated in her affidavit she did not recall Costello's leave was due
to an injury, nor did she have knowledge regarding Costello's workers' compensation claim. It is equally
undisputed that Brugger had knowledge of Costello's injury and her workers' compensation claim, but
Brugger did not fire Costello.
Costello argues, however, that Glende's knowledge of Costello's injury can be inferred from the
circumstances. In her summary judgment proof, Costello makes no reference to Glende's knowledge of her
injury or her workers' compensation claim. Moreover, Costello did not controvert any of the essential
averments in Glende's affidavit. Costello has failed to meet her summary judgment burden to show that the
decision makers had knowledge of her workers' compensation claim.
B. Negative Attitude Toward Costello's Injury
Costello contends there is overwhelming evidence that Brugger expressed a negative attitude toward
Costello's injury. Brugger, however, was not the decision maker in Costello's termination. Glende, Buckner,
and the individual from the personnel center participated in the decision to terminate Costello, and Glende
made the final decision. The fact that someone who is not involved in the employment decision expressed
negative feelings is not evidence that the decision had a discriminatory motivation. Russell v. McKinney
Hosp. Venture, 235 F.3d 219, 229 (5th Cir. 2000). As such, Brugger's attitude is not relevant to whether the
employer exhibited a negative attitude toward Costello's injury. See Wal-Mart Stores, Inc. v. Amos, 79 S.W.
3d 178, 187 (Tex. App.- Texarkana 2002, no pet.).
Costello urges this court to consider the “conduit,@ or “cat's paw,@ theory adopted by some federal courts
in discrimination cases. Costello contends that because Brugger expressed a negative attitude toward
Costello's injury and Brugger informed Glende of her negative attitude, that Brugger's attitude can be
imputed to Glende, the decision maker. The courts applying the conduit theory limit it to circumstances in
which one supervisor makes a recommendation regarding an employee to another innocent supervisor who
acts on that recommendation without conducting any independent judgment. See Long v. Eastfield College,
88 F.3d 300, 307 (5th Cir.1996) (concluding that if the innocent supervisor “did not conduct his own
independent investigation, and instead merely 'rubber stamped' the recommendation of [the discriminatory
supervisors], the causal link between [the employees'] protected activities and their subsequent terminations
would remain intact.@); Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir.1990) (“If [the employment board]
acted as the conduit of [the supervisor's] prejudice-his cat's-paw-the innocence of its members would not
spare the company from liability.@); Azzaro v. County of Allegheny, 110 F.3d 968, 973-74 (3rd Cir.1997)
(finding evidence to support liability when a discriminating supervisor designed a plan to reorganize a
department that had the effect of terminating the plaintiff, which was approved by others without independent
The Texas Supreme Court has declined to adopt the conduit theory, and we must follow precedent. See City
of Fort Worth v. Zimlich, 29 S.W.3d 62, 70-71 (Tex. 2000); Harris County v. Vernagallo, 181 S.W.3d 17, 26, n.
15 (Tex. App.- Houston [14th Dist.] 2005, pet. denied). In addition, Glende's actions do not fit the conduit
theory as typically applied. She was not an innocent supervisor who acted on the recommendation of one
with a negative attitude. She initially consulted with Buckner, then she conferred with the Bank personnel
center before determining what action to take concerning Costello. Glende did not discharge Costello on the
basis of Brugger's recommendation. Accordingly, we conclude that Costello failed to meet her summary
judgment burden to establish that she was discharged by personnel who manifested a negative attitude
toward her workers' compensation claim.
C. Adherence to Company Policy
Costello contends she was not terminated according to the company policy on time sheet abuse, but rather
in retaliation for filing a workers' compensation claim. Specifically, Costello references Brugger's deposition
testimony that the Bank's policy on time sheet abuse “depended on the situation.@ However, Costello did
not raise this issue in her response to the motion for summary judgment, nor did she present any evidence
that the Bank did not adhere to its policy.
D. Less Favorable Treatment than Similarly Situated Employees
Costello does not contend she was treated differently than similarly situated employees.
E. Stated Reason for Discharge was False
Costello contends she raised a fact issue regarding whether the Bank's stated reason for discharge was
false because (1) the termination process was triggered by Brugger and was “dependent on her bias and
false allegations,@ and (2) she was terminated shortly after returning to work. Costello has failed to present
any evidence that Brugger “triggered@ the termination process, or that Brugger participated in any manner
in the termination decision.
Further, the timing of Costello's termination does not raise a fact issue with regard to the truth of the stated
reason for discharge. Costello contends that the timing of her termination, less than one month after her
return to work from her injury, creates a fact issue as to whether the stated reason for discharge is false.
Contrary to Costello's assertion, the relevant time period to be considered is the time between the protected
activity - in this case, the filing of the workers' compensation claim - and termination. See Wal-Mart Stores,
Inc., 79 S.W.3d at 178. The Bank filed Costello's workers' compensation claim no later than May 21, 2002.
Costello was terminated on October 11, 2002. Therefore, the relevant time period is between May 21, 2002
and October 11, 2002.
Although an injury to an employee, followed closely by termination of that employee, is strong evidence the
two events are related, such circumstance alone does not constitute evidence that the stated reason for the
employee's discharge was false. Id. In this case, Costello was not terminated until at least four months after
she filed her workers' compensation claim, and more than five months after she was injured. Pursuant to the
Bank's policy, she was terminated after the second time sheet violation.
The trial court did not err in granting the Bank's motion for summary judgment. As the employee, Costello
bears the initial burden to raise a fact issue demonstrating a causal link between the discharge and the filing
of a workers' compensation claim. The Bank presented summary judgment proof that Costello was not
discharged because she filed a workers' compensation claim. In refuting the Bank's proof, Costello failed to
present circumstantial evidence showing that (1) those making the termination decision had knowledge of the
workers' compensation claim, (2) the decision makers expressed a negative attitude toward her injured
condition, (3) the Bank failed to adhere to established company policies, (4) she was treated differently than
similarly situated employees, or (5) the Bank's stated reason for discharge was false. Accordingly, we hold
Costello failed to raise a fact issue supporting a causal link between her workers' compensation claim and
the Bank's decision to terminate her employment. The judgment of the trial court is affirmed.
/s/ Charles W. Seymore
Judgment rendered and Memorandum Opinion filed December 11, 2007.
Panel consists of Justices Anderson, Fowler, and Seymore.
 On a motion from the Bank, the trial court ordered the phrase, “obviously referring to my on the job injury and expressing a
negative attitude toward my injury” struck from the affidavit.
 Because we find the trial court properly granted the Bank's traditional motion for summary judgment, we need not address
the no-evidence motion.