Michael R. White v. Construction and Trade Tools, Inc. D/B/A the J D Russell Company

AFFIRMED and Opinion Filed November 13, 2024

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-00841-CV

MICHAEL R. WHITE, Appellant
V.
CONSTRUCTION AND TRADE TOOLS, INC.
D/B/A THE J D RUSSELL COMPANY, Appellee

On Appeal from the 471st Judicial District Court
Collin County, Texas
Trial Court Cause No. 471-05098-2021

MEMORANDUM OPINION
Before Justices Reichek, Nowell, and Carlyle
Opinion by Justice Reichek
Following a bench trial, Michael R. White appeals a take-nothing judgment

in his suit against his former employer for wrongful termination in retaliation for

filing a worker’s compensation claim. White contends the evidence is legally and

factually insufficient to support the trial court’s determination that he was not fired

in retaliation for filing a workers’ compensation claim. We affirm.

Background

Construction and Trade Tools Inc. d/b/a the JD Russell Company

manufactures steel landscaping and construction products. White began working for
JD Russell in July 2012 as a forklift mechanic at a plant in Farmersville, Texas. On

February 4, 2019, White was injured on the job, suffering a tear in his right shoulder

that required surgery. He initiated a workers’ compensation proceeding. White’s

doctor released him back to light-duty work on August 8, 2019. JD Russell offered

White a light-duty position as a janitor/custodian beginning August 19, 2019. White

accepted the offer. His wages remained the same as before.

On August 28, 2019, acting Plant Manager Rudy Barrera gave White a verbal

warning for failing to wear his hard hat as required by JD Russell’s safety policy.

The next day, White again failed to wear his hard hat and was given a written

warning. He was cautioned that a third violation could result in disciplinary action

or termination. On August 30, 2019, JD Russell’s Corporate Operations Manager,

Timothy Helzer, observed White working without a hard hat. Helzer instructed

Barrera to terminate White’s employment.

In his original petition, White alleged JD Russell discharged him in violation

of § 451.001 of the Texas Labor Code for filing a workers’ compensation claim in

good faith. After a one-day bench trial on May 15, 2023, the trial court rendered a

take-nothing judgment. The trial judge issued findings of fact and conclusions of

law. Among other things, the judge found that White’s failure to follow safety

policies was the sole reason JD Russell terminated his employment and there was no

credible evidence White was fired for any reason related to his workers’

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compensation claim. White filed a motion for new trial, which was overruled by

operation of law.

In this appeal, White argues the trial court erred in concluding there was no

evidence of workers’ compensation discrimination. He challenges the legal and

factual sufficiency of the evidence to support many of the trial court’s findings.1

Applicable Law

The Texas Labor Code states that “[a] person may not discharge or in any

other manner discriminate against an employee because the employee has . . . filed

a workers’ compensation claim in good faith.” TEX. LAB. CODE ANN. § 451.001(1).

An employer who violates this statute is subject to a retaliation claim, which

constitutes an exception to the traditional doctrine of employment at will in Texas.

Kingsaire, Inc. v. Melendez, 477 S.W.3d 309, 312 (Tex. 2015). To prove a

retaliatory firing, an employee must show that the employer’s prohibited action

“would not have occurred when it did” absent the employee’s protected conduct. Id.

A retaliation plaintiff generally may rely on circumstantial causation evidence, such

as an employer’s expression of a negative attitude toward the employee’s injury, an

employer’s discriminatory treatment of the employee compared with similarly

1
White argues the evidence conclusively establishes that he was fired in retaliation for filing a workers’
compensation claim. But his brief includes the factual sufficiency standard of review, so we construe his
brief to challenge both legal and factual sufficiency.
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situated employees, an employer’s failure to adhere to established company policy,

and evidence that the employer’s stated reason for termination was false. Id.

When reviewing a case tried to the bench where findings of fact and

conclusions of law have been entered, findings of fact have the same force and effect

as jury findings. Buckeye Retirement Co. v. Bank of Am., N.A., 239 S.W.3d 394, 399

(Tex. App.—Dallas 2007, no pet.). When appealing the legal sufficiency of the

evidence supporting an adverse finding on which an appellant had the burden of

proof, he must show the evidence establishes, as a matter of law, all vital facts in

support of the issue. Id. (citing Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241

(Tex. 2001)). We first examine the record for evidence supporting the finding, then

we will examine the entire record to determine if the contrary proposition is

established as a matter of law. Id. When an appellant attacks the factual sufficiency

of an adverse finding, he must demonstrate it is against the great weight and

preponderance of the evidence. Id. We must consider and weigh all of the evidence

and set aside the verdict only if the evidence is so weak or if the finding is so against

the great weight and preponderance of the evidence that it is clearly wrong and

unjust. Id. In a bench trial, the trial court, as factfinder, judges the credibility of the

witnesses, assigns the weight to be given their testimony, and resolves any conflicts

or inconsistencies in the evidence. Id.

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Analysis

JD Russell’s Policy Manual, which White acknowledged receipt of when he

was hired in 2012, provided that employees must observe the safety rules contained

in the company’s General Safety Practices manual. The General Safety Practices

manual required employees to wear personal protective equipment as instructed and

as needed by the job. The safety manual required employees to wear hard hats

“when working in any area where overhead hazards may be present, or as otherwise

required.”

Helzer testified that in 2019 JD Russell’s Farmersville plant was having safety

issues. There had been many accidents in recent years. Since 2018, 19 workers at

the plant had filed workers’ compensation claims. Helzer visited the plant in August

of 2019 to address managerial and safety problems.

In the summer of 2019, before White returned to work, Helzer began to strictly

enforce the hard hat policy. According to Helzer, any employee who was on duty

was required to wear a hard hat at all times. Helzer acknowledged the hard hat policy

changed during White’s absence from work.

When White was cleared to return to work in a light-duty position, JD Russell

created the janitorial job, a position that had not existed before, for him. White

returned to work on August 19, then was out until August 26 on vacation. On August

28, Barrera gave White a verbal warning for his failure to wear a hard hat. Then

after White failed to wear his hard hat on August 29, Barrera gave him a written

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warning. Barrera noted on the warning form, which White signed, that White needed

to be more observant and diligent in following safety protocols as directed. Barrera

further noted that White must wear his safety helmet “at all times while working.”

White was instructed that a third violation could result in disciplinary action and/or

termination.

Helzer was at JD Russell’s corporate office in Arizona on August 30. He has

a large screen in his office with live stream of surveillance cameras from the

Farmersville plant. He was watching the live stream when he saw White walking

around without his hard hat in the main manufacturing area. In that building, there

are many overhead hazards, including cranes and items being moved by forklifts.

Helzer knew White had just been warned verbally and in writing about his failure to

wear a hard hat, and he made the decision to fire him. Helzer testified White was

not terminated because he filed a workers’ compensation claim. He was terminated

for not adhering to safety policies.

As he did at trial, White maintains the stated reason for his termination was a

pretext. He makes many arguments attacking the trial court’s findings. For example,

he argues the new hard hat policy was not communicated to him when he returned

to work. The only paperwork he signed then was his offer to work a light-duty job.

The job description in the offer letter did not include the information about wearing

a hard hat at all times. In addition, White relies on two electronic forms completed

by JD Russell’s human resources personnel that document his termination. These

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documents indicate they were completed before 9:00 a.m. on August 30. Because

White was fired later in the morning, he contends the paperwork proves the decision

to fire him was already made before his third violation. He also contends that

because his new job description excluded “overhead reaching,” he was not able to

put on his hard hat. White further argues that on the day of his verbal warning, he

was not in an area where a hard hat was required.

In challenging the sufficiency of the evidence, White contends the doctrine of

spoliation applies. JD Russell did not keep the video that showed White without his

hard hat. The company’s server retains video for only thirty days. White asserts the

trial court should have applied a presumption that the video was harmful to JD

Russell’s case.

The doctrine of spoliation refers to the improper destruction of evidence

relevant to a case. Buckeye Retirement, 239 S.W.3d at 401. The intentional

destruction or spoliation of evidence relevant to a case may, in the trial court’s

discretion, give rise to a presumption that the destroyed evidence would not have

been favorable to its destroyer. Id. The presumption may be rebutted by a showing

that the evidence was not destroyed with a fraudulent purpose or intent. Id.

White did not timely present his spoliation argument to the trial court. The

record reflects White first mentioned spoliation in his motion for new trial. As a

prerequisite to presenting a complaint for appellate review, the record must show

that the complaint was made to the trial court by a timely request, objection, or

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motion and that the trial court ruled on the request, objection, or motion or refused

to rule. TEX. R. APP. P. 33.1(a). Because he waited until trial was over to request a

spoliation presumption, to the extent White argues on appeal that the trial court erred

in not applying the presumption, he has not preserved such a complaint for our

review. Further, we presume the trial court knew and correctly applied the law

regarding spoliation and determined that if the presumption applied, it was overcome

by the evidence, which included statements from JD Russell employees other than

Helzer who also saw White without his hard hat on August 30. See Buckeye

Retirement, 239 S.W.3d at 402.

White cannot demonstrate that as a matter of law he was fired in retaliation

for his workers’ compensation claim. As factfinder, the trial judge was entitled to

credit the evidence showing White was fired for failing to follow company safety

rules. Company policy required a hard hat when working where overhead hazards

may be present, or “as otherwise required.” In the summer of 2019, JD Russell

began requiring hard hats at all times when on-duty. It is undisputed that White

failed to wear his hard hat three days in a row and was warned after the second

violation that another violation could result in termination.

Further, the trial judge’s findings are not against the great weight and

preponderance of the evidence. All of the challenges White makes to the fact

findings—from whether he was sufficiently notified of the hard hat policy, to the

discrepancies in the time JD Russell documented his termination, to the ultimate

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reason for his termination—were issues for the factfinder to determine. At the time

White returned to work, JD Russell management was taking steps to address safety

concerns at the plant. The record shows that, at the very latest, White was informed

on August 29 in his written warning that he needed to wear a hard hat at all times.

He was seen the next day in the main manufacturing area without one. He himself

acknowledged that he knew before August 30 that he was supposed to wear a hard

hat at work and that he did not wear a hard hat on August 30. The evidence is legally

and factually sufficient to support the trial court’s findings.

We affirm the trial court’s judgment.

/Amanda L. Reichek/
AMANDA L. REICHEK
JUSTICE

230841F.P05

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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

MICHAEL R. WHITE, Appellant On Appeal from the 471st Judicial
District Court, Collin County, Texas
No. 05-23-00841-CV V. Trial Court Cause No. 471-05098-
2021.
CONSTRUCTION AND TRADE Opinion delivered by Justice
TOOLS, INC. D/B/A THE J D Reichek. Justices Nowell and Carlyle
RUSSELL COMPANY, Appellee participating.

In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.

It is ORDERED that appellee CONSTRUCTION AND TRADE TOOLS,
INC. D/B/A THE J D RUSSELL COMPANY recover its costs of this appeal from
appellant MICHAEL R. WHITE.

Judgment entered this 13th day of November, 2024.

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