Schneider Electric USA, Inc. D/B/A Schneider Electric v. Maria Ramirez

Opinion

ACCEPTED

08-21-00145-CV

EIGHTH COURT OF APPEALS

08-21-00145-CV EL PASO, TEXAS 11/2/2021 2:51 PM

ELIZABETH G. FLORES

CLERK

NO. 08-21-00145-CV

FILED IN

IN THE EIGHTH COURT OF APPEALS8th COURT OF APPEALS EL PASO, TEXAS

EL PASO, TEXAS

11/2/2021 2:51:42 PM

ELIZABETH G. FLORES

Clerk

SCHNEIDER ELECTRIC USA, INC. d/b/a SCHNEIDER ELECTRIC,

Appellant

v.

MARIA RAMIREZ,

Appellee

On Appeal from the 327th District Court, El Paso, Texas Cause No. 2019DCV3145

Judge Linda Yee Chew, presiding

APPELLANT’S OPENING BRIEF

Andrew M. Gould Noemi Lopez Texas State Bar No. 00792541 Texas State Bar No. 24078881 andrew.gould@wickphillips.com nlopez@raylaw.com Molly M. Jones Texas State Bar No. 24100271 RAY, PEÑA, MCCHRISTIAN, PC molly.jones@wickphillips.com 5822 Cromo Drive Dana M. Hilzendager El Paso, Texas 79912 Texas State Bar No. 24106099 Telephone: 915.832.7243 dana.hilzendager@wickphillips.com Facsimile: 915.832.7333

WICK PHILLIPS GOULD & ATTORNEYS FOR APPELLANT MARTIN, LLP SCHNEIDER ELECTRIC USA, INC. 3131 McKinney Avenue, Suite 500 d/b/a SCHNEIDER ELECTRIC Dallas, Texas 75204 Telephone: 214.692.6200 Facsimile: 214.692.6255

IDENTITY OF PARTIES AND COUNSEL Appellant: Counsel for Appellant:

Schneider Electric USA, Inc. d/b/a Andrew M. Gould Schneider Electric Molly M. Jones Dana M. Hilzendager

WICK PHILLIPS GOULD &

MARTIN, LLP

3131 McKinney Avenue, Suite 500 Dallas, Texas 75204

Noemi Lopez

RAY, PEÑA, MCCHRISTIAN, PC 5822 Cromo Drive

El Paso, Texas 79912

Appellee: Counsel for Appellee:

Maria Ramirez Enrique Chavez, Jr.

Michael R. Anderson

Christine A. Chavez

CHAVEZ LAW FIRM

2101 Stanton Street

El Paso, Texas 79902

Defendant (Trial Court): Counsel for Aerotek, Inc. (Trial Court):

Aerotek, Inc.

Christine E. Reinhard

Dylan A. Farmer

SCHMOYER REINHARD LLP

8000 IH 10 West, Suite 1600 San Antonio, Texas 78230

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TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ............................................................ i TABLE OF CONTENTS .......................................................................................... ii INDEX OF AUTHORITIES.................................................................................... iii STATEMENT OF THE CASE ..................................................................................1 STATEMENT REGARDING ORAL ARGUMENT ...............................................2 ISSUES PRESENTED...............................................................................................3 STATEMENT OF FACTS ........................................................................................4 SUMMARY OF THE ARGUMENT ........................................................................6 ARGUMENT ............................................................................................................ 7 CONCLUSION AND PRAYER .............................................................................12 APPENDIX ..............................................................................................................13 CERTIFICATE OF SERVICE ................................................................................15 CERTIFICATE OF COMPLIANCE .......................................................................16

ii

INDEX OF AUTHORITIES

Page(s)

Cases

Burton v. Freescale Semiconductor, Inc., 798 F.3d 222 (5th Cir. 2015) ....................................................................... passim

City of LaPorte v. Barfield, 898 S.W.2d 288 (Tex. 1995) ..............................................................................8, 9

Garza v. Exel Logistics, Inc., 161 S.W.3d 473 (Tex. 2005) ........................................................................... 9, 10

Mexican Ry. Co. v. Bouchet, 963 S.W.2d 52 (Tex. 1998) .......................................................................... passim

Nanez v. Swift Transportation Corp., No. EP-07-CV-361-PRM, 2009 WL 10700191 (W.D. Tex. June 5, 2009) ..........8

Wingfoot Enterprises v. Alvarado, 111 S.W.3d 134 (Tex. 2003) ........................................................................... 7, 10

Statutes

Tex. Lab. C. § 405.001...........................................................................................1, 7 Tex. Lab. C. § 406.002...............................................................................................7 Tex. Lab. C. § 408.001.............................................................................................10 Tex. Rev. Civ. Stat. art. 8307c ...................................................................................8

Rules

Tex. R. App. P. 28.3(e)(1) ........................................................................................ ii Tex. R. App. P. 9.4(i)(B) .........................................................................................16

iii

STATEMENT OF THE CASE

Nature of the Case Appellee/Plaintiff Maria Ramirez (“Ramirez”) brought a workers’ compensation discrimination claim under Texas Labor Code Section 451.001 (“Section 451”) against Appellant/Defendant Schneider Electric USA, Inc.

(“Schneider Electric”). (CR 47.)

Course of Schneider Electric moved for summary judgment on the Proceeding Section 451 claim solely on grounds that it did not provide

Ramirez with workers’ compensation benefits and, therefore, it could not be liable to her. (CR 85-104; Appx.

Tab 2.) The trial court denied the motion but allowed Schneider Electric to seek a permissive appeal of the threshold issue. (CR 1035-37; Appx. Tab 1.) This Court granted the Petition for Permissive Appeal.

Trial Court Order Amended Order on Motions for Summary Judgment and on Appeal Order Granting Schneider Electric’s Motion for Permission

to Appeal (id.)

2

STATEMENT REGARDING ORAL ARGUMENT Schneider Electric does not request oral argument in this appeal, unless a panel of Justices assigned to this matter believes it would assist in providing a more complete understanding of the legal arguments presented in this appeal.

3

ISSUES PRESENTED

Whether Schneider Electric can be liable for Section 451 workers’

compensation discrimination to a temporary worker on assignment who pursued workers’ compensation benefits through her staffing agency employer and who was not covered by Schneider Electric’s workers’ compensation coverage?

4

STATEMENT OF FACTS

Schneider Electric maintains a manufacturing facility in El Paso, Texas and contracts with staffing companies to supplement its workforce with temporary personnel. (CR 104; Appx. 2C.) Aerotek, Inc. (“Aerotek”), a staffing company, employed Ramirez and assigned her to provide temporary services at Schneider Electric’s El Paso facility. (CR 102; Appx. 2B.) Aerotek provides its employees, including Ramirez, with workers’ compensation coverage. (Id.) Schneider Electric provides such coverage to its own employees, but not to temporary staff, like Ramirez. (CR 104; Appx. Tab 2C.)

Ramirez filed a workers’ compensation claim with Aerotek during her temporary work assignment at Schneider Electric. (CR 102; Appx. 2B.) Due to a serious safety infraction, Ramirez’s assignment to Schneider Electric ended. (CR 104; Appx. Tab 2C.) Ramirez then brought claims for workers’ compensation discrimination under Section 451 against Schneider Electric and Aerotek.1 (CR 47.) The trial court dismissed the claim against Aerotek. (CR 1035-37; Appx. Tab 1.)

Schneider Electric sought summary judgment on the Section 451 claim, contending it could not be liable to Ramirez under Section 451 since it did not provide her workers’ compensation coverage. (CR 85-104; Appx. Tab 2.) The trial

1 Ramirez also filed other claims against Aerotek and Schneider Electric. (CR 39-53.) Aerotek removed the case to the U.S. District Court for the Western District of Texas, but Ramirez’s Section 451 claims were severed and remanded back to state court. (CR 26-84.)

5

court denied Schneider Electric’s motion. (CR 1035-37; Appx. Tab 1.) The trial court, however, permitted Schneider Electric to seek an appeal because the question of its liability under Section 451 to Ramirez—the sole remaining claim in the case— was a threshold, case-dispositive issue. (Id.) Schneider Electric filed a Petition in this Court for Permissive Appeal, and the Court granted the Petition. See September 24, 2021 Order.

6

SUMMARY OF THE ARGUMENT

The trial court erred in denying summary judgment in Schneider Electric’s favor. Schneider Electric cannot be liable to Ramirez under Section 451 as a matter of law because it did not provide workers’ compensation coverage to her. Mexican Ry. Co. v. Bouchet, 963 S.W.2d 52, 56 (Tex. 1998) (non-subscribers to workers’ compensation cannot be liable under Section 451 to an injured worker); Burton v. Freescale Semiconductor, Inc., 798 F.3d 222, 241-43 (5th Cir. 2015). For this reason, the trial court’s order denying summary judgment should be reversed and Ramirez’s Section 451 claim against Schneider Electric should be dismissed with prejudice.

7

ARGUMENT

Schneider Electric has no liability to Ramirez under the anti-discrimination provisions of the Texas Workers’ Compensation Act (the “Act”) set forth in Section 451 because it does not provide her workers’ compensation coverage under the Act.

The Act generally provides for various benefits to workers and companies when a company obtains workers’ compensation coverage. Though Texas encourages employers to elect coverage under the Act, most Texas employers are not required to provide coverage. Tex. Lab. C. § 406.002; Burton v. Freescale Semiconductor, Inc., 798 F.3d 222, 241-43 (5th Cir. 2015) (citing Wingfoot Enterprises v. Alvarado, 111 S.W.3d 134, 142 (Tex. 2003)). Those who carry workers’ compensation coverage are called “subscribers,” and those who do not are called “non-subscribers.” See generally, Tex. Mexican Ry. Co. v. Bouchet, 963 S.W.2d 52 (Tex. 1998).

Section 451 of the Act forbids retaliation against employees for filing a workers’ compensation claim. It provides, in relevant part:

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. C. § 405.001(1). The Texas Supreme Court determined in Bouchet that the Act’s anti-retaliation provision does not apply to non-subscribers. 963 S.W.2d at 56. The court concluded that the word “person” in Section 451 means “subscriber”

8

because the anti-retaliation provision was intended to protect individuals who bring workers’ compensation claims. And “there can be no doubt that only employees of subscribers to the Act can bring workers’ compensation claims … [and, thus] only subscribers can be subject to [Section 451] claims.”2 Id. (emphasis added).

Workers cannot bring Section 451 claims against workers’ compensation non-

subscribers,3 and according to the Fifth Circuit in Burton v. Freescale Semiconductor, Inc., that conclusion is the same if a company is a non-subscriber as to all workers (as in Bouchet) or if the company is a non-subscriber as to the plaintiff (as here and in Burton). 798 F.3d 222, 241-43 (5th Cir. 2015). Indeed, logic dictates that an entity without an interest in the workers’ compensation claim has no incentive to retaliate against someone for filing a claim. “Forbidding retaliation against an employee for seeking monetary benefits under the [Act] presupposes that the employer provides the employee’s workers’ compensation benefits and therefore has some stake in the claim.” Id. at 241 (citing Bouchet, 963 S.W.2d at 56 and City of LaPorte v. Barfield, 898 S.W.2d 288, 293 (Tex. 1995)).

Burton’s analysis of Texas Supreme Court precedent is compelling. There, a staffing company, Manpower, employed plaintiff and temporarily assigned her to

2 963 S.W.2d at 56-57. Bouchet analyzed the language of Tex. Rev. Civ. Stat. art. 8307c, which was later re-codified as Section 451. The court found that the same result would be reached under Section 451. 3 See also Nanez v. Swift Transportation Corp., No. EP-07-CV-361-PRM, 2009 WL 10700191, at *3 (W.D. Tex. June 5, 2009) (dismissing plaintiff’s Section 451 claim against non-subscriber).

9

Freescale. Id. at 225. Like Aerotek, Ramirez, and Schneider Electric here, Manpower provided workers’ compensation coverage to plaintiff and other temporary workers, and Freescale provided such coverage to its permanent employees. Id. at 242. Following a workplace injury, plaintiff filed a workers’ compensation claim with Manpower; her assignment to Freescale ended soon after. Id. at 225-26. Plaintiff brought a Section 451 claim against Freescale, even though Manpower provided her workers’ compensation coverage. The Fifth Circuit held that plaintiff could not maintain a Section 451 claim against Freescale for several reasons.4 Id. at 243.

First, the Fifth Circuit noted that the Texas Supreme Court has been unequivocal that non-subscribers are not subject to Section 451 retaliation claims. Id. at 242 (citing Bouchet, 963 S.W.2d at 56 and City of LaPorte, 898 S.W.2d at 293). Second, it found that Freescale’s provision of workers’ compensation coverage to its permanent employees was insufficient to impose liability as to plaintiff, finding instead that it must provide coverage to the plaintiff to be liable under Section 451. Burton, 798 F.3d at 242. It did so by relying on rationale from Garza v. Exel

4 In analyzing the plaintiff’s Section 451 claim in Burton, the Fifth Circuit assumed that Manpower and Freescale were “co-employers” under the Act, in part because earlier in the opinion, the Court had found that the entities were “joint employers” under the Americans with Disabilities Act. Id. at 242, n. 21. However, the Fifth Circuit also determined that the co-employer relationship was irrelevant to the Section 451 claim: “since Freescale is not the ‘subscriber’ responsible for Burton’s workers’ compensation coverage, the question of employment is beside the point.” Id. (citing Bouchet, 963 S.W.2d at 56) (emphasis added).

10

Logistics, Inc., 161 S.W.3d 473, 476 (Tex. 2005) and its discussion of the term “employer” in a separate section of the Act.5 Garza explained that, under the Act, it is not enough for a company to be an “employer” generally, but that it must have an employer-employee relationship with the plaintiff. Id. at Burton, 798 F.3d at 242. Relying on that same reasoning, the Burton court explained that it is not enough for a defendant to be a subscriber generally but that it is the subscriber relationship with the plaintiff that is controlling. Burton, 798 F.3d at 242.

Finally, the Fifth Circuit found that treating a workers’ compensation subscriber less favorably than a non-subscriber undermines the purpose and intent of the Act. Id. at 243 (citing Wingfoot, 111 S.W.3d at 142). There can be no dispute, for example, that if Schneider Electric did not subscribe to workers’ compensation at all, Ramirez would have no Section 451 claim against it. Bouchet, 963 S.W.2d at 56. Therefore, imposing liability upon Schneider Electric because it provides workers’ compensation to its permanent workforce would fly in the face of the Act’s goal of encouraging coverage. Burton, 798 F.3d at 243 (citing Wingfoot, 111 S.W.3d at 142).6 In the end, the Fifth Circuit determined that imposing liability on an entity

5 Garza examines a different provision of the Act, Tex. Lab. C. § 408.001, known as the exclusive remedy provision, that—unlike Section 451—uses the terms “employer.” 6 “Under [plaintiff’s] approach, despite having no stake in [plaintiff’s] workers’ compensation claim,” [defendant] would be subject to liability because it made the unrelated and legislatively ‘encourage[d]’ decision to provide coverage for its permanent employees.” Burton, 798 F.3d at 243 (citing Wingfoot, 111 S.W.3d at 142).

11

like Schneider Electric, was “purposeless and cuts against ‘the Act’s decided bias in favor of employers electing to provide coverage for their employees.’” Id.

Like Burton, this Court should find that an entity must provide workers’

compensation coverage to the plaintiff to be liable to her under Section 451. Nothing in Section 451, nor any Supreme Court precedent interpreting the statute, suggests otherwise. Therefore, the trial court erred in denying Schneider Electric’s Motion for Summary Judgment. The trial court’s decision should be reversed, and judgment rendered in Schneider Electric’s favor, dismissing Ramirez’s Section 451 claim with prejudice.

12

CONCLUSION AND PRAYER

Schneider Electric respectfully requests that the Court reverse the trial court’s denial of Schneider Electric’s Motion for Summary Judgment and render judgment for Schneider Electric, dismissing Ramirez’s Section 451 claim against Schneider Electric with prejudice. Schneider Electric further requests any other relief to which it may be entitled.

13

APPENDIX

Tab 1: Amended Order on Motions for Summary Judgment and Order Granting Schneider Electric’s Motion for Permission to Appeal signed on August 10, 2021

Tab 2: Defendant Schneider Electric USA, Inc.’s Electric’s Motion for Summary Judgment filed September 4, 2020 (“Schneider Electric’s Summary Judgment Motion”)

Tab 2A: Excerpts of the February 28, 2020 Deposition of Maria Ramirez (Ex. A to Schneider Electric’s Summary Judgment Motion)

Tab 2B: Declaration of Jason Volker, Director of Financial Operations for Aerotek, signed September 2, 2020

(Ex. B to Schneider Electric’s Summary Judgment Motion)

Tab 2C: Declaration of Ben Diaz, Human Resources Manager for Schneider Electric, signed August 25, 2020

(Ex. C to Schneider Electric’s Summary Judgment Motion)

Tab 3: Plaintiff’s Response to Defendant Schneider Electric USA, Inc.’s Motion for Summary Judgment filed November 30, 2020 (excluding exhibits)

Tab 4: Schneider Electric’s Reply in Support of its Motion for Summary Judgment filed December 1, 2020

14

Dated: November 2, 2021 Respectfully submitted,

/s/ Andrew M. Gould

Andrew M. Gould

Texas State Bar No. 00792541 andrew.gould@wickphillips.com Molly M. Jones

Texas State Bar No. 24100271 molly.jones@wickphillips.com Dana M. Hilzendager

Texas State Bar No. 24106099 dana.hilzendager@wickphillips.com

WICK PHILLIPS GOULD & MARTIN, LLP

3131 McKinney Avenue, Suite 500 Dallas, Texas 75204

Telephone: 214.692.6200

Facsimile: 214.692.6255

and

Noemi Lopez

Texas State Bar No. 24078881 nlopez@raylaw.com

RAY, PEÑA, MCCHRISTIAN, PC 5822 Cromo Drive

El Paso, Texas 79912

Telephone: 915.832.7243

Facsimile: 915.832.7333

ATTORNEY FOR APPELLANT

SCHNEIDER ELECTRIC USA, INC.

d/b/a SCHNEIDER ELECTRIC

15

CERTIFICATE OF SERVICE

I hereby certify that on November 2, 2021 a true and correct copy of this brief, including any and all attachments, was served via electronic service through eFile.TXCourts.gov on all parties through counsel of record, listed below:

Enrique Chavez, Jr. Christine E. Reinhard enriquechavezjr@chavezlawpc.com creinhard@sr-llp.com Michael R. Anderson Dylan A. Farmer manderson@chavezlawpc.com dfarmer@sr-llp.com Christine A. Chavez SCHMOYER REINHARD LLP cachavez@chavezlawpc.com 8000 IH 10 West, Suite 1600 CHAVEZ LAW FIRM San Antonio, Texas 78230 2101 Stanton Street Telephone: 210.447.8033 El Paso, Texas 79902 Facsimile: 210.447.8036 Telephone: 915.351.7772 Facsimile: 915.351.7773

ATTORNEYS FOR APPELLEE ATTORNEYS FOR DEFENDANT MARIA RAMIREZ (TRIAL COURT)

AEROTEK, INC.

/s/Andrew M. Gould

Andrew M. Gould

16

CERTIFICATE OF COMPLIANCE I hereby certify that the foregoing response is in compliance with Texas Rule of Appellate Procedure 9.4(i)(B) because it contains 1,880 words and has been prepared in a proportionally spaced typeface using Microsoft Word in 14-point Times New Roman font for text and 12-point Times New Roman for footnotes, which meets the typeface requirements.

/s/Andrew M. Gould

Andrew M. Gould

Tab 1:

1035

El Paso County - 327th District Court Filed 8/12/2021 10:07 AM Norma Favela Barceleau

District Clerk

El Paso County

2019DCV3145

IN THE 327TH DISTRICT COURT EL PASO COUNTY, TEXAS

MARIA RAMIREZ, § §

Plaintiff, § v. § Cause No. 2019DCV3145 §

AEROTEK, INC. and SCHNEIDER § ELECTRIC USA, INC. d/b/a § SCHNEIDER ELECTRIC, § §

Defendants. §

AMENDED ORDER ON MOTIONS FOR SUMMARY JUDGMENT AND ORDER GRANTING SCHNEIDER ELECTRIC'S MOTION FOR PERMISSION TO APPEAL

A. ORDER ON DEFENDANTS' MOTIONS FOR SUMMARY JUDGEMENT On December 1, 2020, the Court heard arguments on Defendant Schneider Electric USA, Inc. 's Motion for Summary Judgment ("Schneider Electric 's Motion"). On April 8, 2021, the Court heard arguments on Defendant Aerotek, Inc. 's Traditional & No Evidence Motion for Summary Judgment ("Aerotek's Motion"). After considering the motions, Plaintiff's responses, the evidence submitted by the parties, the arguments of counsel, and the relevant case law, the Court is of the opinion that (I) Schneider Electric's Motion should be DENIED, and (2)

Aerotek's Motion should be GRANTED in its entirety.

It is, therefore, ORDERED, ADJUDGED, and DECREED as follows:

I. Schneider Electric's Motion is DENIED, and it can be liable to Plaintiff under Tex.

Lab. C. § 451.001 ("Chapter 451 ").

2. Aerotek's Motion is GRANTED and Plaintiff's claim for workers' compensation retaliation under Chapter 451 - the only claim pending against Aerotek before this

Order - Page 1

1036

Court - is hereby fully and finally DISMISSED from this lawsuit WITH PREJUDICE.

3. Aerotek is awarded and may recover its taxable costs of court as allowed by law.

This judgment for Aerotek does not affect Plaintiff's claim and causes of action against Schneider Electric, which remain pending before the Court under this cause number.

B. ORDER ON SCHNEIDER ELECTRIC'S MOTION FOR PERMISSION TO APPEAL ORDER DENYING MOTION FOR SUMMARY JUDGMENT AND FOR AMENDMENT OF ORDER

On August 4, 2021, the Court considered Defendant Schneider Electric' s Motion for Permission to Appeal Order Denying Motion for Summary Judgment (the "MSJ Order") and for Amendment of Order (the "Permissive Appeal Motion"). After considering the Permissive Appeal Motion, Plaintiffs Response, the arguments of counsel, as well as the evidence before the Court, the Court hereby GRANTS the Permissive Appeal Motion pursuant to Texas Civil Practice & Remedies Code Section 51.014(d)(2) and Texas Rule Civil Procedure 168 and amends the MSJ Order denying Schneider Electric's Motion as follows:

The Court finds that the MSJ Order denying Schneider Electric's Motion involves a controlling question of law as to which there is a substantial ground for difference of opinion: whether Schneider Electric can be liable to Plaintiff for workers' compensation discrimination pursuant to Chapter 451 since Schneider Electric did not provide Plaintiff workers' compensation coverage but does provide workers' compensation coverage to its direct employees. Since Plaintiff's claim against Aerotek was dismissed with prejudice, determination of this issue governs the viability of Plaintiffs sole remaining claim. Resolution of this issue is difficult given the absence of guiding precedent available to allow this Court and other trial courts to effectively and efficiently determine this issue. Immediate appeal from this Court's MSJ Order will materially advance the ultimate termination of the litigation, since determination

Order - Page 2

1037

of this issue would be dispositive of Plaintiffs claim and this case. The Parties and the judicial system may avoid a full trial on the merits and an appeal based on the propriety of this order. See Tex. Civ. Prac. & Rem. Code§ 51.014(d)(2); Tex. R. Civ. P. 168.

Signed this /o dayof ~2021.

Order - Page 3

1038

. .. ""

AGREED:

ls/Dylan A. Farmer ls/Andrew M Gould Christine E. Reinhard Andrew M. Gould Texas State Bar No. 24013389 Texas State Bar No. 00792541 creinhard@sr-llp.com andrew .gould@wickphi 11 ips.com Dylan A. Farmer Molly M. Jones Texas State Bar No. 24093417 Texas State Bar No. 24100271 dfarmer@sr-l lp.com molly.jones@wickphillips.com Dana M. Hilzendager

SCHMOYER REINHARD LLP Texas State Bar No. 24106099 8000 IH 10 West, Suite 1600 dana.hi lzendager@wickphi Ilips.com San Antonio, Texas 78230 Telephone: 210.447.8033 WICK PHILLIPS GOULD & MARTIN, Facsimile: 210.447.8036 LLP 3131 McKinney A venue, Suite I 00 ATTORNEYS FOR DEFENDANT Dallas, Texas 75204 AEROTEK, INC. Telephone: 214.692.6200 Facsimile: 214.692.6255

ATTORNEYS FOR SCHNEIDER

ELECTRIC USA, INC.

Order - Page 4

Tab 2:

El Paso County - 327th District Court Filed 9/4/2020 1 57 PM Norma Favela Barceleau

District Clerk

El Paso County

2019DCV3145

IN THE 327TH DISTRICT COURT EL PASO COUNTY, TEXAS

MARIA RAMIREZ, § §

Plaintiff, § v. § Cause No. 2019DCV3145 §

AEROTEK, INC. and SCHNEIDER § ELECTRIC USA, INC. d/b/a § SCHNEIDER ELECTRIC, § §

Defendants. §

DEFENDANT SCHNEIDER ELECTRIC USA, INC.'S MOTION FOR SUMMARY JUDGMENT

Defendant Schneider Electric USA, Inc. d/b/a Schneider Electric ("Schneider Electric")

files this Motion for Traditional Summary Judgment (the "Motion") under Tex. R. Civ. P. 166a(b)

and (i) and Local Rule 3.13 seeking dismissal of Plaintiff Maria Ramirez's ("Plaintiff's" or "Ramirez's") lone claim against Schneider Electric for workers' compensation discrimination claim pursuant to Tex. Lab. C. § 451.001("Section451").

I.

INTRODUCTION AND GROUND FOR SUMMARY JUDGMENT

Plaintiff Maria Ramirez was employed by Defendant Aerotek, Inc. ("Aerotek"), a staffing company, and was assigned to provide temporary services to Schneider Electric. Her assignment ended in April 2018. She now claims it was because she pursued workers' compensation benefits.

Because Aerotek, not Schneider Electric, provided such benefits, Plaintiff's claim against Schneider Electric fails as a matter of law.

SCHNEIDER ELECTRIC'S MOTION FOR SUMMARY JUDGMENT - Page I

II.

SUMMARY JUDGMENT EVIDENCE

Schneider Electric's summary judgment evidence, which is attached to this Motion and incorporated herein by reference as if fully set forth herein, is set forth as follows: 1 Exhibit A- Excerpts of the Feb. 28, 2020 Deposition of Maria Ramirez ("Pl. Dep.")

Exhibit B - Declaration of Jason Volker ("Volker Deel.")

Exhibit C - Declaration of Ben Diaz ("Diaz Deel.")

III.

STATEMENT OF UNDISPUTED FACTS

A. Aerotek, Not Schneider Electric, Provides Workers' Compensation Insurance To Its Personnel.

1. Schneider Electric maintains a manufacturing facility in El Paso, Texas. Exh. C, Diaz Deel. ii 2. To supplement its direct workforce, Schneider Electric contracts with staffing companies, including Aerotek, a global staffing company to supply it with temporary personnel. Id. at ii 3.

2. The workers provided by Aerotek are employed by it-not by Schneider Electric-

and Aerotek provides its employees with workers' compensation coverage. Exh. B, Volker Deel.

ii 3. Further, Aerotek's workers' compensation policy that applies to individuals working on assignment at the Schneider Electric El Paso facility does not name Schneider Electric as an

insured. Id.

3. Schneider Electric provides workers' compensation coverage to its own direct employees, and its coverage does not apply to temporary personnel working on assignment at its facility employed by Aerotek. Exh. C, Diaz Deel. ii 3.

Schneider Electric respectfully requests the Court take judicial notice of all pleadings and documents that have been filed with the Court so that those documents do not need to be attached to this Motion.

SCHNEIDER ELECTRIC'S MOTION FOR SUMMARY JUDGMENT - Page 2

87

4. In April 2018, Plaintiff sought workers' compensation benefits through her employer, Aerotek. Exh. A, Pl. Dep. 69-70 and Pl. Dep. Ex. 3; id. at 174-75 and Pl. Dep. Ex. 12;

Exh. B, Volker Deel. ii 4.

5. Plaintiff's assignment at Schneider Electric ended as a result of her committing a

safety infraction. Exh. C, Diaz Deel. ii 4. B. Ramirez Files Suit Against Schneider Elecbic and Aerntek

6. On August 21, 2019, Ramirez filed suit in this court against Schneider Electric and Aerotek, claiming sex discrimination, sexual harassment and retaliation, disability discrimination and retaliation, and workers' compensation retaliation. See Plaintiff's Original Petition and Request for Disclosure. Schneider Electric removed the case to federal court, where the Section 451 claim was severed and remanded to this Court. The remaining claims are proceeding against Aerotek and Schneider Electric in federal court.

IV.

ARGUMENT AND CITATION TO AUTHORITY

A. Summary Judgement Standard Summary Judgement is proper where there is no genuine issue of material fact, and the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). A defendant is entitled to summary judgment if it "conclusively negates a single essential element of a cause of action or conclusively establishes an affirmative defense." Armendariz v. Redcats USA, L.P., 390 S.W.3d 463, 467 (Tex. App.-El Paso 2012, no pet.) (citing Frost N at. Bank v. Fernandez, 315 S.W.3d 494, 508-09 (Tex. 2010)). A no-evidence summary judgment motion must be granted where there has been adequate time for discovery and there is no evidence to establish one or more essential element of the claim. Tex. R. Civ. P. 166a(i).

SCHNEIDER ELECTRIC'S MOTION FOR SUMMARY JUDGMENT - Page 3

B. Schneider Electric Was Never Plaintiff's Workers' Compensation Insurance Provider And, Consequently, Her Claim Fails As A Matter of Law

The threshold question for Plaintiff's Section 451 claim is whether she has evidence that Schneider Electric is even subject to Section 451 as to her. As explained below, she does not have such evidence, and in fact, Schneider Electric cannot be liable to her as a matter of law.

Section 451.001 forbids retaliation against employees for filing a workers' compensation claim. According to the Texas Supreme Court, the anti-retaliation provisions of the Texas Workers' Compensation Act (the "Act") "is intended to apply only to employees and employers who act under the Act." Tex. Mexican Ry. Co. v. Bouchet, 963 S.W.2d 52, 56 (Tex. 1998) (emphasis added). "Forbidding retaliation against an employee for seeking monetary benefits under the [Act] presupposes that the employer is a subscriber."2 Id. (citing City of LaPorte v. Barfield, 898 S.W.2d 288, 293 (Tex. 1995)). Indeed, as the Supreme Court stated, "there can be no doubt that only employees of subscribers to the Act can bring workers' compensation claims ... [and] only subscribers can be subject to [Section 451] claims." Bouchet, 963 S.W.2d at 56 (emphasis added). 3 Bouchet makes clear that workers cannot bring Section 451 claims against workers'

compensation non-subscribers. Id. 4 According to the Fifth Circuit m Burton v. Freescale Semiconductor, Inc., the conclusion is the same if a company is a non-subscriber as to all workers (as in Bouchet) or ifthe company is a non-subscriber as to the plaintiff(as here). 798 F.3d 222, 241-43 (5th Cir. 2015).

2 Not all employers in Texas are required to subscribe to workers' compensation as set forth in the Act. Tex. Lab. C. § 406.002. Those who do are called "subscribers," and those who do not are called "non-subscribers." 3 Bouche/ analyzed the language of Tex. Rev. Civ. Stat. art. 8307c, which was later re-codified as Section 451.001, but the court found that the same result would be reached under Section 451. 963 S.W.2d at 56. 4 See also Nanez v. Swift Transportation Corp., No. EP-07-CV-361-PRM, 2009 WL 10700191, at *3 (W.D. Tex. June 5, 2009) (dismissing plaintiffs Section 451 claim against a non-subscriber).

SCHNEIDER ELECTRIC'S MOTION FOR SUMMARY JUDGMENT - Page 4

Burton is compelling. There, a Manpower temporary employee on assignment at Freescale brought a Section 451 claim against Freescale, even though Manpower provider her workers' compensation coverage-an identical factual situation as here. In Burton, the Fifth Circuit relied on Texas Supreme Court precedent to find that plaintiff could not maintain a Section 451 claim against Freescale. Id. at 243. It reasoned, first, that the Texas Supreme Court has been unequivocal that non-subscriber entities are not subject to Section 451 retaliation claims. Id. at 242 (citing Bouchet, 963 S.W.2d at 56 and City ofLaPorte, 898 S.W.2d at 293). Then, relying on Garza v. Exel Logistics, Inc., 161 S.W.3d 473, 476 (Tex. 2005), it found that it is insufficient for an entity to be a subscriber generally to be subject to Section 451; it must be a subscriber as to the employee at issue. Burton, 798 F.3d at 242.

Finally, the Burton court explained that treating a workers' compensation subscriber less favorably than a non-subscriber undermines the purpose and intent of the Act. Id. at 243 (citing Wingfoot Enterprises v. Alvarado, 111 S.W.3d 134 (Tex. 2003)). There can be no dispute, for example, that if Schneider Electric did not subscribe to workers' compensation at all, Ramirez would have no Section 451 claim against it. See Bouchet, 963 S. W.2d at 56. The Act's purpose is to encourage entities to provide workers' compensation coverage. Therefore, it would fly in the face of the statutory scheme to find that a subscriber as to its direct personnel, like Schneider Electric, who "despite having no stake in [Ramirez's] workers' compensation claim," can be subject to Section 451 claims, while a non-subscriber cannot. Id. at 243. That conclusion, according to the Fifth Circuit, would defy the Texas Supreme Court decisions in Bouchet, Wingfoot, and Garza. Id.

SCHNEIDER ELECTRIC'S MOTION FOR SUMMARY JUDGMENT - Page 5

v.

CONCLUSION

Schneider Electric did not provide workers' compensation benefits to Plaintiff, so her claim for workers' compensation retaliation under Section 451 against it fails as a matter oflaw.

For the reasons set forth herein, Schneider Electric respectfully requests that this Court enter summary judgment in its favor dismissing Ramirez's claim against Schneider Electric and award it all other remedies to which it may be entitled.

Dated: September 4, 2020 Respectfully submitted,

l s/Andrew M. Gould

Andrew M. Gould

Texas State Bar No. 00792541 andrew.gould@wickphillips.com Molly M. Jones

Texas State Bar No. 24100271 molly. f ones@w i ckphi lli ps. com Dana M. Hilzendager

Texas State Bar No. 24106099 dana. hilzendager@wi ckphilli ps. com

WICK PHILLIPS GOULD & MARTIN, LLP 3131 McKinney Avenue, Suite 100 Dallas, Texas 75204

Telephone: 214.692.6200

Facsimile: 214.692.6255

ATTORNEYS FOR SCHNEIDER

ELECTRIC USA, INC.

SCHNEIDER ELECTRIC'S MOTION FOR SUMMARY JUDGMENT - Page 6

CERTIFICATE OF SERVICE

Pursuant to the Texas Rules of Civil Procedure, the undersigned attorney of record certifies that a copy of the foregoing instrument was served upon all counsel of record via the court's electronic filing system on September 4, 2020.

ls/Andrew M. Gould

Andrew M. Gould

SCHNEIDER ELECTRIC'S MOTION FOR SUMMARY JUDGMENT - Page 7

Tab 2A:

EXHIBIT A

Maria Ramirez - February 28 , 2020

Page 1

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS EL PASO DIVI SI ON

MARIA RAMIREZ ,

PLAINTIFF ,

vs . CIVIL ACTION

NO . 3 :1 9- cv - 28 3

AEROTEK , INC., and SCHNEIDER ELECTRIC USA , INC ., d/b/a SCHNEIDER ELECTRIC ,

DEFENDANTS .

ORAL AND VIDEOTAPED DEPOSITION OF MARIA RAM I REZ

FE BRUARY 28 , 2020

ORAL AND VIDE OTAPED DEPOSITION OF MARIA RAMIREZ , p roduced as a wit ness a t t he i ns t ance of DEFE NDANT AEROTEK , and du l y sworn , was taken in the above - styled and numbered c ause on the 28th of February , 2020 , from 9 : 41 a . m. t o 5 : 39 p . m., at the o f fice s o f ACR I nk , LLC , 22 1 N. Kansas , Su i te 505 , pursuant to the Federal Rules o f Civil Procedure .

Reported By :

Me l ody C . Jo i ner , CSR

-

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Maria Ramirez - February 28 , 2020

Page 2

1 APPEARANCES 2 FOR THE PLAINTIFF :

3 Mr . Michael Anderson CHAVEZ LAW FIRM

4 2101 N. Stanton Street El Pas o , Texas 79902

5 FOR DEFENDANT AEROTEK:

6 Ms . Christine E . Reinhard 7 SCHMOYER REINHARD , LLP 17806 IH 10 West , Suite 400 8 San Anton i o Texas 78257 9 FOR DEFENDANT SCHNEIDER ELECTRIC : 10 Ms . Molly M. Jones Mr . Andrew Gould

11 WI CK PHILLIPS GOULD & MARTIN, LLP 3131 McKinney Ave ., Suite 1 00 12 Dallas Texas 75204 13 ALSO PRESENT : 14 Mr . Ben Diaz Mr . Roger Navarro , Video Technician 15

16 17 18 19 20 21

22 23

24 25

-

ph . 915 . 542 . 3422 ACR Ink, LLC schedule@acr-i nk . com

Mar i a Ramire z February 28 , 2020 19 (Pages 67 to 70)

Page 67 Page 69 1 know, just in general conversation. 1 A. No, ma'am.

2 Q. Did this -- did you sign this document on the 2 Q. Have you told me every conversation you can 3 same day you had the interview? 3 recall about the three-month probationary period you 4 A. Yes. 4 contend Mr. Antuna discussed with you?

5 Q. Did you sign it immediately after you could go 5 A. I don't understand the question.

6 from the interview and into -- 6 Q. Have you told me about every conversation you 7 A. Yeah, because it was like, I need you 7 can recall about that three-month probationary period?

8 yesterday. That's how bad they needed people. And it 8 A. That was it. That -- Mr. Antuna was the one 9 was like, NJ soon as you leave here, go -- I don't know 9 that extended the three-month probationary period. 10 if it was the same day or the next day -- Go sign 10 Q. But you weren't employed by Schneider Electric, 11 paperwork, I need -- they need to run a criminal 11 correct? 12 background, blah, blah, blah, urine, dab, dab, dab, dab, 12 l.VIR. ANDERSON: Objection, calls for legal 13 dah. 13 conclusion. 14 Q. So it was close in time, is the point? 14 Q. (BYMS. JONES) You can answer. You can 15 A. Yes. 15 answer. 16 Q. Before you started working on assignment at 16 A. I was with Aerotek. I went in through Aerotek. 17 Schneider, other than Mr. Antuna, did you discuss the 17 (Exhibit 3 marked.) 18 three-month probationary period with anyone? 18 Q. (BY MS. JONES) Handing you what's been marked 19 A. Yes. Like I said, just in general conversation 19 Exhibit 3. Do you recognize this document? 20 with other employees. You know, it's like, So how long 20 A. Yes. 21 did you have to stay with the temporary service in order 21 Q. Did you sign it with your electric sig- -- 22 to get hired on? Some people would say three months. 22 electronic signature on October 27th, 2017? 23 Some people would say four months. Some people would 23 A. Yes. 24 say a year. Some people would say, I have never gotten 24 Q. And did you read it before you signed it? 25 hired with Schneider. And then some people would say, 25 A. I probably didn't. I just went through the

Pa ge 68 Page 70 1 Oh, yeah, I got hired right away. 1 paperwork as it was being -- it's like, Sign this, sign 2 So it was -- it was just a general 2 that; you need to sign this. I know that I was signing 3 conversation with just -- 3 something on workmen's comp.

4 Q. So it sounds like the feedback you got from 4 Q. And I think we discover -- discussed this 5 other employees is that it varied? 5 before, but you understood that Aerotek was going to be 6 A. It varied -- 6 providing you workers' comp coverage; is that right?

7 Q. It wasn't this three-month -- 7 A. That's what they told me when I got hurt at 8 A. -- yeah, exactly. It was -- it was -- it 8 Schneider.

9 varied. There was employees there that had been 9 Q. Did you have an understanding about workers' 10 employed with Schneider for over --with Aerotek with 10 comp coverage when you started your employment at 11 over like two years. And I'm like, Seriously? It's 11 Aerotek? 12 like, Yeah. And so it was -- 12 A. No. 13 Q. Do you remember -- 13 Q. Did anyone ever tell you that Schneider 14 A . It was information I needed to know. 14 Electric would be providing you with workers' 15 Q. Is that before you started working on 15 compensation coverage? 16 assignment or during your assignment at Schneider? 16 A. Nobody ever told me about workmen's comp 17 A. Oh, no. That was in my assignment. 17 because I've never used it. 18 Q. Do you remember the names of any of those 18 Q. Never used it until the Schneider Electric -- 19 individuals you discussed this hiring issue with? 19 A. Correct. 2O A. No, ma'am. I just -- it's just in general 20 Q. -- Aerotekinci dent? 21 conversation that you have with employees when you're 21 A. I've never used this. I've always -- ifl -- 22 interested in a position. 22 if I need insurance, I went to the doctor with my health 23 Q. Other than Mr. Antuna, did you have a 23 insurance. 24 conversation with any Schneider Electric managers or 24 Q. But this document is notifying you that Aerotek 25 supervisors about this three-month probationary period? 25 is providing you with workers' compensation coverage, is _I

ph . 915 . 542 .3 422 ACR In k , LLC schedul e@acr-ink.com

Mar i a Ramire z February 28 , 2020 45 (Pages 171 to 174)

Pa ge 1 7 1 Pa ge 1 73 1 Mr. -- Dr. Garcia? 1 Q. To turn in paperwork. So that's correct, what 2 A. Yes. Yes, ma'am, because she referred me to 2 I just relayed?

3 him. 3 A. (Moving head up and down).

4 Q. And in number 13, do you see which box is 4 Q. When you see her the first time, how long were 5 checked? Will allow employee to return to work with 5 you there talking to her?

6 restrictions identified in Part III, do you see that? 6 A. I don't remember how long we were there. I 7 A. Yes, ma'am. 7 just needed to report the incident, and she told me the 8 Q. So you told me a second ago that you were kept 8 doctor I needed to go see, and according to whatever the 9 off of work, but this appears to allow you to work with 9 doctor said, to come back and give the excuse if I was 10 the restrictions in Part III, doesn't it? 10 going to be able to come back to work. 11 A. Correct. But she didn't let me come back to 11 Q. Was that a long meeting? 12 work. 12 A. No. 13 Q. Who didn't let you come back to work? 13 Q. Did you discuss harassment at that meeting? 14 A. Ms. Flores. She told me, Just go home and rest 14 A. I didn't discuss anything with her. She just 15 your arm. And go see the other doctor, Dr. Klein. 15 sent me to get my arm checked. It was, like, bad. 16 Because they had referred me to Dr. Klein. So goes, 16 Q. And then when you came back, did you go 17 Don't come back to work till I call you and let you know 17 directly from the doctor's office back to Schneider 18 when you can return to work. And I said, Okay. 18 Electric? 19 Q. Did you want to come back to work? 19 A. Uh-huh. 20 A. Yes, ma'am, I did. 20 Q. And how long was that meeting? 21 Q. Did you ask to come back to work? 21 A. I don't know. Probably an hour. 22 A. Yes, ma'am. 22 Q. And what did -- what happened in that meeting? 23 Q. On Ap- -- April 9th, 2018 -- 23 A. I just told her that I needed to come back to 24 A. Yeah. 24 work with restrictions. And she said that she couldn't 25 Q. -- you asked to come back to work? 25 allow me to come back to work with restrictions because

Page 1 7 2 Page 1 7 4 1 A. Because I thought I was going to come back and 1 there was nothing for me to do. Just to go back home 2 do some light duty. 2 until she called me back.

3 Q. You weren't scheduled to work on April 9th, 3 Q. Why did you tell her on Monday that you needed 4 were you? 4 to come back with restrictions when you would have three 5 A. I don't know what day that falls under. 5 more days before you'd even be scheduled to go back?

6 Q. If I told you that -- 6 A. It was the paperwork I needed to tum in.

7 A. Monday. 7 Q. I understand to tum in the paperwork. But why 8 Q. -- the 9th was a Monday, you're not scheduled 8 did you tell her on Monday, I need to come back to work 9 to work-- 9 with restrictions, when you have until Friday when 10 A. No. 10 you're even scheduled? You don't know how you're going 11 Q. -- on Monday, correct? 11 to be feeling. You don't know how the day is going to 12 Did you talk to Ms. Flores after this 12 progress. 13 appointment -- 13 A. I was just following orders and -- I'm just 14 A . Yes. 14 following my doctor's orders. When I got out of 15 Q. -- on April 9th? 15 doctor's, I went back to her office and I gave her her 16 A. Yes. 16 paperwork. 17 Q. What did -- did you talk to her on the phone or 17 Q. You gave her the -- the form that we're -- 18 in person? 18 marked as Exhibit 11? 19 A. In person, because I needed to turn in 19 A. Yes. 20 paperwork. 20 (Exhibit 12 marked.) 21 Q. So let me make sure I got this right. You go 21 Q. (BY MS. JONES) Handing you what I've marked as 22 to Schneider Electric to see Ms. Flores, and then you go 22 Exhibit 12. Does this document look familiar? 23 to the doctor, and then you go back to Schneider 23 A. Yes. 24 Electric to see Ms. Flores? 24 Q. Did you complete this document? 25 A. Yes, to turn in paperwork. 25 A. Yes.

-

ph . 915 . 542 . 3422 ACR In k , LLC schedul e@acr-in k .com

Mar i a Ramire z February 2 8 , 2 020 46 (Pages 175 to 178)

Page 1 75 Pa ge 1 77 1 Q. Is this your handwriting? 1 you that--

2 A. Yes. 2 A. Yes.

3 Q. That's your signature at the bottom? 3 Q. -- in Exhibit 11?

4 A. Yes, ma'am. 4 And you said you told Esther that you want 5 Q. You filled this -- all the information out in 5 to come back to work, right?

6 here, right? 6 A. Yes, I didn't mind coming back to work.

7 A. Yeah, it looks like my writing, my awful 7 Q. So why did you write, No work till release from 8 writing. 8 Dr. Klein?

9 Q. Did you fill this out before or after your 9 A. Because thafs what they told me to put. 10 doctors appointment with -- 10 Q. Who's "they"? 11 A. Incident Information. Date, injury, 4/7 . 11 A. Ifl'm -- ifl'm restricted to come from work 12 Q. So we justlooked at a form in Exhibit 11 from 12 till I got released from Dr. Klein. And Dr. Klein -- I 13 when you went to the doctor. 13 was barely going to go see Dr. Klein. It's -- this is 14 A. Okay. 14 like before -- this is -- this is just like a doctor 15 Q. And that was on April 9th? 15 they send you to see if you're okay. And once the 16 A. Yes. 16 doctor says you're not okay, then this doctor refers you 17 Q. And this form is also dated April 9th? 17 to this doctor. And she told me, Don't come back to 18 A. Yes. 18 work until Dr. Klein releases you. 19 Q. So the question is, did you fill out this form, 19 Q. Are you saying Esther F1ores told you to write 20 Exhibit 12, after you wentto the doctor, as 20 that? 21 exhibited -- as shown in Exhibit 11? 21 A. Yes. That's --that'swhatthatis. 22 A. I don't know when I filled this out, because 22 Q. And you didn't write on here, I want -- that 23 it's -- it says one date on the 7th, and then one date 23 you wanted to come back to work with light duty? 24 on the 9th. 24 A. She told me I couldn't come back to work. 25 Q. It says, Date injury occurred, 417/2018. 25 Q. If you look up in the middle of the form , it

Pa ge 176 Page 1 78 1 A. Okay. 1 says, Have you had the same or similar injury before?

2 Q. Do you see that? 2 And you say , No, perfect bill of health. Is that right?

3 A. Yes. 3 A. Yes.

4 Q. And then date -- I take that to be date of the 4 Q. Is that accurate?

5 form -- that you completed the form on the 9th? 5 A. Yes.

6 A. Okay. 6 Q. And it asks you who you reported the incident 7 Q. Does that seem like it makes sense to you? 7 to, and you said Jesus Estrada, Cesar Hernandez and 8 A. Yes, ma'am. 8 Raphael. Who's Rafael?

9 Q. And if you look at the bottom part, right above 9 A. The nurse. 10 your signature, it says, No work till release from 10 Q. Who does Rafael work for? 11 Dr. Klein. 11 A. Schneider. 12 Do you see that? 12 Q. When did you see Rafael -- or when did you 13 A. Yes, ma'am. 13 communicate with Rafael? 14 Q. Did you write that? 14 A. On the day I reported this incident. I think 15 A. Yeah. Because that's -- I think thafs what 15 it was on the 8th. 16 they told me to do. 16 Q. What did you say to Rafael? 17 Q. What who told you to do? 17 A. The same thing, that I got hurt on the job and 18 A. I couldn't come back to work because I needed 18 I needed to report it. 19 to be released from the doctor. 19 Q. What did Rafael tell you? 20 Q. But you were released from the doctor in 20 A. He told me to see Esther. And Esther sent me 21 Exhibit 11, correct? 21 to the doctor. 22 A. But this is not the same doctor. This is 22 Q. But Esther wasn't there on the 8th, right? 23 another doctor. 23 A. No, I don't think she was. No. 24 Q. I understand. This doctor is telling you 24 Q. Did you talk to Cesar Hernandez on the 8th? 25 you're able to work with restrictions. Didn't he tell 25 A. That's the guy that I told her I reported this

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ph . 915 . 542 .3 422 ACR In k , LLC schedul e@acr-in k .com

Maria Ramirez - February 28, 2020

Page 275

1 C E R T I F I C A T E

2 3 STATE OF TEXAS 4 COUNTY OF EL PASO 5 6 I, Melody c. Joiner, Certified Shorthand 7 Reporter in and for the State of Texas, hereby certify B that this transcript is a true record of the testimony 9 given in said proceedings, and that said transcription 10 is done to the best of my ability. 11 Given under my hand and seal of office on this 12 16th day of March, 2019. 13 14 15

~\~~~

16

17 _iLlAJ c.~n~r-~

Me lody """""""'

18 Certified Shorf+iand Reporter Of the State of Texas

19 Certification number 5525 Date of expiration of

20 certification: 10/31/22 Firm Registration # 11613 21

22 23 24 25

ph. 915.542.3422 ACR Ink, LLC schedule@acr-ink.com

"

Aerotek Notice 6: NOTICE TO EMPLOYEES CONCERNING WORKERS' COMPENSATION IN TEXAS [Texas Workers' Compensation Rule 110.101(e)(1)]

COVERAGE: Aerotek, Inc has workers' compensation insurance coverage from ESIS/lndemnity Insurance Company of North America in the event of work-related injury or occupational disease. This coverage is effective from 11/30/15. Any injuries or occupational diseases which occur on or after that date will be handled by ESIS/lndemnlty Insurance Company of North America. An employee or a person acting on the employee's behalf, must notify the employer of an injury or occupational disease not later than the 30th day after the date on which the injury occurs or the date the employee knew or should have known of an occupational disease, unless the Texas Department of Insurance, Division of Workers' Compensation (Division) determines that good cause existed for failure to provide timely notice. Your employer is required to provide you with coverage information, in writing, when you are hired or whenever the employer becomes, or ceases to be, covered by workers' compensation insurance.

EMPLOYEE ASSISTANCE: The Division provides free information about how to file a workers' compensation claim. Division staff will answer any questions you may have about workers' compensation and process any requests for dispute resolution of a claim. You can obtain this assistance by contacting your local Division field office or by calling 1-800-252- 7031. The Office of Injured Employee Counsel (OIEC) also provides free assistance to injured employees and will explain your rights and responsibilities under the Workers' Compensation Act. You can obtain OIEC's assistance by contacting an OIEC customer service representative in your local Division field office or by calling 1-866-EZE·OIEC (1-866-393-6432).

SAFETY VIOLATIONS HOTLINE: The Division has a 24 hour toll-free telephone number for reporting unsafe conditions in the workplace that may violate occupational health and safety laws. Employers are prohibited by law from suspending, terminating, or discriminating against any employee because he or she in good faith reports an alleged occupational health or safety violation. Contact the Division at 1-800-452-9595.

NOTICE TO NEW EMPLOYEES "You may elect to retain your common law right of action if, no later than five days after you begin employment or within five days after receiving written notice from the employer that the employer has obtained workers' compensation insurance coverage, you notify your employer in writing that you wish to retain your common law r ight to recover damages for personal injury. If you elect to retain your common law right of action, you cannot obtain workers' compensation income or medical benefits if you are injured." Please sign below to confirm that you have been notified and understand the contents of this notification.

Maria L Ramirez (Electronic Signature)

Employee's Signature

Maria L Ramirez Employee's Name

10/26/2017 Date Signed

,

___, I

D·MR-000048

AG Onbouding • 0000986800991955 -Generated: 11/30/2017 11 ·21 AM

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km 7301 Parkway Drive Hanover, MD 21076 800-336-7091 Fax to:-~------

Employee Incident Report Each employee is required to complete this form after experiencing an unintentional worlc related injury. Thit furm is used as official documentation thet lllJl on-the job injmy has occum:d. Please be as specific as possible when completing. Please use Che back of the paper if uccded.PLEASBPRJNTCLEARLY Em lo ee Information:

Bmployee Nao: Home Telephams Number. '/ IJ'"-JOI ~

Client Nmn11:

Have JOU na hlld die-e ot simil•injmy bdVrol' If60, plea. pruvlJ# ~ ojtnjul'y, 4'2tlt uf.itrj&tryandt).JM ofmadlc:al ~ """1Md.

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Did you notify imyoDe at Allegia Gtoilp, Jne; ~die inciidbut?. l/•a. tD whom andwhmdJdyou noi!/Y1

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DolDidJOU~medicaltratmeat? Y orN <Jlye&.pl-"prov/dil. NO. IMdoctar, clbtic.. WasaDrug~pCrlbimed? Y orNifnor, why?

~1and"plitlH1f111111-Dfjii&llUjl~wt1l.....,.,..-n.l/no.·plctlMtndlcat•"'1S"l'/Drt11Jt IJO #1/dnglrCfltmmt) -~ ~ _ D (l. (~!> ~ (ir(l,"4'A DateaodtiineofNmttDaotor's.Aflpointment?

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I hereby certify thatd1ubovc ·~ iim true io the best oi'.ID}':b!Dwlelfse Qr liellef.. I am llWlll1I th_., .lafl' proriclei fuumm peuallics ifIJaicjwjngly ond/or wit,hfrarJdu!ntj.ptc!llwitbhQtd 01.wial ikct or make a&Ise llalmlent on this ptlll}' ~ f01111 ~ anla-1o abblill Wl>rbn' tompriml!ionben.&tt. Additi111ially1 t uridl!llrtlind tluit A)legi!J .0Jo"!!P requ~ that I keep th!!in apprised ofillY mtiilicallwOTt•tJtus at all tfm~· I fUrther tmderstaiJ4 that Aerotolc Will Ir)' to offi:r lmnsilionilt duty anigmn1111b t.O employee$ based Oil p~clribed medii:al l.imifllti.Dllll resullillg .ftvili job !dated ill.juries wbmever p~siibl~. I agieo to.C:O!lllCtmy Atrotek: offico tD ~y1¥itb ~n:qiiat ·

Revised 5-2015

I /;2_

I Ramirez 000077

Tab 2B:

EXHIBITB

102

dotloop s ignature verification: dtlp.us/g60X.eJ09·PdLc

IN THE 327TH DISTRICT COURT EL PASO COUNTY, TEXAS

MARIA RAMIREZ, § §

Plaintiff, § v. § Cause No. 2019DCV3145 §

AEROTEK, INC. and SCHNEIDER § ELECTRIC USA, INC. d/b/a § SCHNEIDER ELECTRIC, § §

Defendants. §

DECLARATION OF JASON VOLKER

1. My name is Jason Andrew Volker, and my address is 15 Silktree Court, Catonsville, MD 21228. I am over 18 years old, and I am competent to make this declaration.

The facts in this declaration are based on my personal knowledge.

2. Aerotek, Inc. is a global staffing company, and it provides temporary contract workers to Schneider Electric at its manufacturing facility in El Paso, Texas. I am currently the Director of Financial Operations for Aerotek, and I have held that position since March 1, 2015.

3. Workers provided by Aerotek to Schneider Electric are employed by Aerotek, and Aerotek provides its employees with workers' compensation coverage. The workers'

compensation policy that covers Aerotek' s employees working on assignment at the Schneider Electric El Paso facility does not name Schneider Electric as an insured.

4. Maria Ramirez, an Aerotek employee, worked on assignment at Schneider Electric's El Paso facility for less than six months in 2017-2018. Ms. Ramirez made a workers'

compensation claim under Aerotek's policy in 2018.

I declare under penalty of perjury that the foregoing is true and correct.

Executed on this 2nd day of September, 2020.

d ot loo p verifi ed

09/02/20 10:04 AM EDT

FZ21·4Y09-RCKR-PUGW

JASON ANDREW VOLKER

Tab 2C:

EXHIBIT C

IN THE 327TH DISTRICT COURT EL PASO COUNTY, TEXAS

MARIA RAMIREZ, § §

Plaintiff, § v. § Cause No. 2019DCV3145 §

AEROTEK, INC. and SCHNEIDER § ELECTRIC USA, INC. d/b/a § SCHNEIDER ELECTRIC, § §

Defendants. §

DECLARATION OF BEN DIAZ

1. My name is Ben Diaz. I am over 18 years old, and I am competent to make this declaration. The facts in this declaration are true and correct and are based on my personal knowledge. I am making this declaration under the penalty of perjury.

2. Schneider Electric maintains a manufacturing facility in El Paso, Texas. I am the Human Resources Manager at Schneider Electric's El Paso facility, a position I have held since February 2018.

3. To supplement its direct workforce, Schneider Electric contracts with staffing companies, including Aerotek, a global staffing company, to supply it with temporary personnel. The workers provided by Aerotek are employed by it-not by Schneider Electric-and Aerotek provides its employees with workers' compensation coverage. Schneider Electric provides workers' compensation coverage to its own direct employees. Its coverage does not apply to temporary personnel working on assignment at its facility employed by Aerotek.

4. Aerotek assigned Maria Ramirez to work at Schneider Electric's El Paso facility for a short period in 2017-2018. Her assignment at Schneider Electric ended as a result of her committing a safety infraction. Because she was an Aerotek employee, Schneider Electric never provided workers' compensation coverage to Ms. Ramirez.

My name is Ben David Diaz, my date of birth is January 26, 1981, and my business address is 1601 Northwestern Drive, El Paso, Texas, 79912, United States. I declare under penalty of perjury that the foregoing is true and correct.

Executed in El Paso County, State of Texas, on the 5:f '"/ <)f- ""

A~, 2020.

BEN DIAZ ~

Tab 3:

El Paso County - 327th District Court Filed 11/30/2020 311 PM Norma Favela Barceleau

District Clerk

El Paso County

2019DCV3145

IN THE 327TH WDICIAL DISTRICT COURT EL PASO COUNTY, TEXAS

MARIA L. RAMIREZ,

Plaintiff,

v. Cause No. 2019-DCV-3145

AEROTEK, INC., and SCHNEIDER ELECTRIC USA, INC.

dba SCHNEIDER ELECTRIC,

Defendants.

PLAINTIFF'S RESPONSE TO

DEFENDANT SCHNEIDER ELECTRIC USA INC.'S l\10TION FOR SUMMARY TUDGMENT

"

TO THE HONORABLE COURT:

Plaintiff Maria Ramirez ("Plaintiff" or "Employee Ramirez") now files this Response to "Defendant Schneider Electric USA, Inc.'s Motion For Summary Judgment" ("Motion") filed by Defendant Schneider Electric USA, Inc. d/b/a Schneider Electric ("Defendant" or "Employer Schneider"), and shows the Court as follows:

I. BOTTOMLINE AUTHORITY Under Texas' black letter law, specifically Texas Labor Code, Section 91.042(c), a staffing agency and its client company arc "cocmploycrs" when either the staffing agency or the client company has a workers' compensation insurance policy covering the staffing agency's employee leased to the client company, and both the staffing agency and the client company are liable to the employee under Texas workers' compensation laws:

For wmkcrs' compensation insurance purposes, a license holder and the license holder's client shall be cocmploycrs. If either a license holder or a client elects to obtain workers'

compensation insurance coverage for covered employees, the client and the license holder arc subject to Sections 406.005, 406.034, 408.001, and 411.032.

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Texas Labor Code §91.042(c); Texas Labor Code §91.001(11) ("'License holder' means a person licensed under this chapter to provide professional employer services."); Brown v. Aztec R~g

Equipment, Inc., 921 S.vV.2d B35 (Tex. App. - Houston [14th] 1996) (holding that for wmkcrs' compensation purposes, a staffing agency and its client company arc co-employers, and the staffing agency's wmkcrs' compensation insurance policy covers the client company). IL LEGAL STANDARD.

A. NO-EVIDEKCE MOTIOK FOR SUM~L\RY jUDGMEKT.

In Texas, summa1y judgments arc disfavored as a means of resolving cases. Ca.1.10 v. Brand, 776 S.vV.2d 551, 556 (Tex. 1989). Prior to a no-evidence motion for summary judgment being filed, there must be an "adequate time for discovc1y." Tex. R. Civ. P. l 66a(i). This "adequate time for discovc1y" standard applies only to no-evidence motions for summary judgment. Tex. R. Civ. P. l 66a(a)-(b), (i). Texas Ruic of Civil Procedure l 66a(i) provides that after adequate time for cliscovcry; tl1c movar1t, \vitl1out 1)rcscr1tir1g summary juclgmcr1t cviclcr1cc may move for summary judgment on the ground that there is no evidence of one or more essential clements of a claim or defense on which an adverse party would have the burden of proof at trial. Tex. R. Civ. P. l 66a(i).

In order to defeat a no-evidence motion for summary judgment, the non-movant must present some evidence raising a genuine issue of material fact supporting each clement contested in the motion. Tex. R. Civ. P. 166a(i); Alack Ti·uck.1, Inc. v. Tamaz, 206 S.vV.3d 572, 5Bl-B2 (Tex. 2006). In presenting its evidence, the nonmovant is not required to marshal its proof; its response need only point out evidence that raises a fact issue on the challenged clements. Tex. R. Civ. P. 166a cmt. -1997; accord]olzn.rnn v. Brewer & Pritchard, PC., 73 S.vV.3d 193, 207 (Tex. 2002). The nonmovant raises a genuine issue of material fact by producing "more than a scintilla of

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evidence" establishing the challenged clements' existence and may use both direct and circumstantial evidence in doing so. Ford ivlotor Co. v. Rid,gwry, 135 S.vV.3d 598, 600-60 I. More than a scintilla exists when the evidence is such that it "would enable reasonable and fair-minded people to differ in their conclusions." Id. at 601 (quoting ivlerrell Dow Pharm., Inc. v. Havner, 953 S.vV.2d 706, 711 (Tex. 1997)). If the nonmovant's evidence provides a basis for conflicting inferences, a fact issue arises. Randall v. Dall. Power & L~glzt Co., 752 S.vV.2d 4, 5 (Tex. 1988) ~)Cr

curiam). l\·1orcovc1; there is a presumption that evidence favorable to the nonmovant will be taken as true, every reasonable inference will be indulged in favor of the nonmovant, and any doubts will be resolved in the nonmovant's favoc }V!xon v. ivfi: ProjJ. i'v~gmt. Co., 690 S.vV.2d 546, 548-49 (Tex. 1985).

B. TRc\DITIOK\L MOTIOK FOR SUM~L\RY jUDGMEKT.

Under a traditional sununary judgment standard, the movant for sununary judgment must first state specifically the grounds for sununary judgment. Tex. R. Civ. P. l 66a(c). l\forcovc1; a defendant who moves for summa1y judgment must disprove at least one clement of each of the plaintiff's causes of action. Cath~y v. Booth, 900 S.vV.2d 339, 341 (Tex. 1995) ~)Cr curium). Therefore, the movant has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Jvixon v. i'vli: ProjJ. i'v~gmt.

Co., 690 S.vV.2d 546, 548-549 (Tex. 1985). Unless tl1c movant's motion and evidence meet this standard, the non-movant is not required to respond to tl1c summa1y judgment motion at all. Rhone-Poulenc v. Steel, 997 S.vV.2d 217, 222-223 (Tex. 1999). In determining whether the movant has carried its burden, all evidence favorable to the non-movant must be taken as true, every reasonable inference must be indulged in favor of the non-movant, and any doubts must be resolved in the non-movant's favoc Jvixon, 690 S.vV.2d at 548-549. Evidence favoring tl1c movant's

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position will not be considered unless it is uncontrovcrtcd. Davi1 v. City of GrajJevine, !BB S.vV.3d 74B (Tex. App. - Fort \Vorth 2006) (citing Great Am. Reserve Ins. Co. v. San Antonio Plumbing SujJjJ/y Co., 391S.\V.2d41, 47 (Tcx.1965)).

III. PLAINTIFF SHO\VS A GENUINE DISPUTE AS TO l\1ATERIAL FACTS REGARDING HER \YORKERS' COMPENSATION RETALIATION CLAIM, AND DEFENDANT CANNOT SHO\V IT IS ENTITLED TO JUDGMENT AS A MATTER OF LA\V.

Under Texas law, "[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. Labor Code §451. 001 (1); Dillard DejJt. Stores v. Hecht, 2 25 S. vV. 3d 109, 116-117 (Tex. App. - El Paso 2005).

"In order to succeed on a claimed violation of Section 451.001, the employee must show that the termination or other discrimination would not have occurred when it did but for the employee's assertion of a compensation claim." Hecht, 225 S.vV.3d at 117 (quoting Continental Griffee Product.1, Co. v. Cazarez, 93 7 S.vV.2d 444, 450-51 (Tex. 1996)).

A. DEFEKn\KT Cc\l\"KOT SHOW IT IS EKTITLED TO jUDGMEKT, BECc\USE PL\IKTIFF SHOWS c\S ,\ l\•L\TTER OF L\W TIL\T EMPLOYERS AEROTEK c\KD SCHKEIDER c\RE PL\IKTIFF'S CO EMPLOYERS UKDER TEXc\S L\BOR CODE§9 l.042 (C)c\KD §91.001(11).

Under Texas statutmy authority, a staffing agency and its client company arc

For wmkcrs' compensation insurance purposes, a license holder and the license holder's client shall be cocmploycrs. If either a license holder or a client elects to obtain workers'

compensation insurance coverage for covered employees, the client and the license holder arc subject to Sections 406.005, 406.034, 408.001, and 411.032.

Texas Labor Code §91.042(c); Texas Labor Code §91.001(11) ("'License holder' means a person licensed under this chapter to provide professional employer services."); Garza v. Excel L1~gi1tic.1, I 00 S.vV.3d 2BO, 2B4 (Tex. App. - Houston [!st] 2002) ("\Vhcn two entities have joint control over an 4 of 27

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employee's work, they arc co-employers.") (citing TVhite v. Liberty F;_ylau Selz. Di1t., BBO S.\V2d 156, 159 (Tex. App. - Texarkana 1994, \vrit denied)).

Additionally, the United States District Court for the \Vcstcrn District of Texas has previously ruled -- when ruling against the same Defendant, Schneider Electric -- that "[w]hcrc a staffing agency supplies \vorkcrs to a client company, the client company may also be held liable where it is found to be a "joint employer" that exerts a sufficient degree of control over the employee." Aferaz v. HJlt Afonagement Co1jJ.) et al., Case 3: 16-cv-OO 155-Frvf, Ecf 74, "Order Denying Schneider Electric Defendants' rvfotion For Summary Judgment And Volt l\fanagcmcnt Corporation's !vfotion For Summary Judgment", p. 7 (\VD. Tex., July 7, 2017) (citing Burton v. Freescale Semiconduct01; Inc., 798 F. 3d 2 22, 228-29 (5th Cir. 2015)). Specifically, the District Court explained:

In order to determine whether the client company meets these criteria, the court applies the "hvbrid economic realities/common lmv control test." The test consists of two component<;: the common law control component and the economic realities component.

The common law control component considers "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." The economic realities component focuses "on whether the alleged employer paid the employee's salary, \Vithhcld ta.xcs, provided benefits, and set the terms and conditions of employment."

[... ]

As the court must "emphasize" the common law control portion of the test, hmvcvc1; Schneider's lack of economic pmvcr over Plaintiff is not dispositivc.

[... ]

Where an entity has the right to supervise an employee for infractions and demand that he he terminated, it constitutes an employer for ADA purposes.

J.\:Jeraz, Case 3:16-cv-00155-FM, Ecf 74, pp. 7-9 (footnotes omitted) (emphasis added).

In the instant case, Co-Defendant Acrotck, Inc. ("Employer Acrotck") is a staffing agency \vhich employs Employee Ramirez, DejJosition rif Aforia Ramirez, 12: 7-B; 51 :20-25 (Exhibit A), and assigns Employee Ramirez to \Vork at Co-Employer Schneider, Ramirez DejJo, 56:3-5 (Ex. A).

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\Vhile Employee Ramirez is assigned to work for Employer Schneider; Employer Schneider trains Employee Ramirez, Ramirez DejJo, 99: 16-100: 14 (Ex. A), Employer Schneider disciplines or recommends discipline against Employee Ramirez, DejJosition 1?f Ben Diaz, 25:2-8; 39: 15-24 (Exhibit l ); (Exhibit B, Acrotck's "Disciplinary Action Report" based on Schneider Elcctric 's recommendation), and Employer Schneider admits, in its interrogatory answers, that it demanded Employee Ramirez be terminated \vhcn it demanded Co-Employer Acrotck staffing agency end Employee Ramirez' assignment to Employer Schneider (Ex. C, Schneider Answer to Interrogatory No. 9) ("Schneider Electric requested that Acrotck end Plaintiff's temporary assignment on April 7, 201B.").

For these reasons, Employee Ramirez shmvs both, that as a matter of lmv under the Texas Labor Code, and alternatively as a genuine question of material fact that Employers Acrotck and Schneider arc Employee Ramirez' co-employers. Texas Labor Code §9 l.042 (c); Garza, 100 S.\V.3d at 284; Hlhite, BBO S.\V.2d at 159. Thus, Employer Schneider cannot prove, conclusively as it must, it is entitled to judgment as a matter of law, and the Court must rightly deny the Motion under these facts. Tex. R. Civ. P. 166a(i); Tamaz, 206 S.\V3d at 581-582; Tex. R. Civ. P. 166a cmt. -199 7; ]ohnrnn , 73 S.\V.3d at 207; Ford Afotor Co. , 135 S.\V.3d at 600-601; Havner, 953 S.\V.2d at 711; Randall, 752 S.\V2d at 5; }/ixon, 690 S.\V.2d at 548-549; Tex. R. Civ. P. 166a(c); Rhone-Poulenc, 997 S.\V.2d at 222-223; Davi1, U3B S.\V.3d 748; Great Am. Reserve Ins. Co. , 391 S.\V.2d at 47.

B. Defendant Cannot Show it is Entitled to Judgment as a l\fattcr of La,v, as Employers Acrotck and Schneider arc Plaintiff's Co-Employers, and Employer Acrotck Has a \Vorkcrs' Compensation Insurance Policy Covering Plaintiff. Therefore Co-Employer Schneider is Liable to Plaintiff Under Tcxa<; \Vorkcrs' Compensation Laws.

Under Texas statutmy authority, for \vorkcrs' compensation purposes, a staffing agency and its client company arc "cocmploycrs", and when either the staffing agency or the client 6 of 27

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company has a \vorkcrs' compensation insurance policy covering the staffing agency's employee leased to the client company, both the staffing agency and the client company arc liable to the employee under Texas workers' compensation lmvs.

For \vorkcrs' compensation insurance purposes, a license holder and the license holder's client shall be cocmploycrs. If either a license holder or a client elects to obtain \Vorkcrs'

compensation insurance coverage for covered employees, the client and the license holder arc subject to Sections 406.005, 406.034, 4013.001, and 411.032.

Texas Labor Code §91.042(c); Texas Labor Code §91.001(11 ) ("'License holder' means a person licensed under this chapter to provide professional employer services."); Texas Labor Code §408. 00 I (a) ("Recovery of \vorkcrs' compensation benefit<; is the exclusive remedy of an employee covered by workers' compensation insurance coverage or a legal beneficiary against the employer or an agent or employee of the employer for the death of or a \vork-relatcd ir~ury sustained by the employee."); Brown v. Aztec R~g Equipment, Inc., 921 S.\V.2d 835 (Tex. App. - Houston [14th] 1996) (holding that for workers' compensation purposes, a staffing agency and its client company arc co-employers, and the staffing agency's \Vorkcrs' compensation insurance policy covers the client company); Garza, I 00 S.\V.3d at 288 (holding that \Vhcn a staffing company has a \Vorkcrs' compensation insurance policy covering an employee the staffing company assigns to work at a client company, a \vorkcrs' compensation claim is the exclusive remedy of the employee against the client company).

Co-Employer Acrotck is a staffing agency \vhich employs Employee Ramirez, Afaria Ramirez De/Jo, 12:7-8; 51:20-25 (Ex. A), and assigns Employee Ramirez to work at Co-Employer Schneider; Ramirez De/Jo, 56:3-5 (Ex. A). Accordingly, for \VOikcrs' compensation purposes, Employers Acrotck and Schneider arc Employee Ramirez' co-employers. Texas Labor Code §9 l.042 (c); Brown, 921 S.\V.2d 835; Garza, 100 S.\V3d at 288.

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Employer Schneider admits 'Aerotek provides its employees with wmkers' compensation coverage." (Motion, p. 2, iJ2). Accordingly, under Texas law, Co-Employers Aerotek and Schneider are liable to Plaintiff under Texas workers' compensation laws, with a wmkers' compensation claim as the exclusive remedy for Employee Ramirez against Employer Sclmeidec Texas Labor Code §9 l.042(c); Brown, 921 S.vV.2d B35; Garza, 100 S.vV.3d at 2BB. As Employee Ramirez' workers' compensation claim is her exclusive remedy against Employer Schneider, Employer Schneider is subject to liability under section 451.001 -- prohibiting Employer Schneider from "discharg[ing] or in any other manner discriminat[ing] against [Employee RamirezJ because [Employee RamirezJ has . . . filed a wmkers' compensation claim in good faith". Tex. Labor Code §451.001(1); Hecht, 225 S.vV.3d at 116-117.

Nevertheless, Employer Schneider ignores Texas statutes, Texas Labor Code §91.042(c), and case law, Brown, 921 S.vV.2d B35; Garza, 100 S.vV.3d at 2BB, and falsely alleges it cannot be held liable for Employee Ramirez' \Yorkers' Compensation Retaliation claim because Employer Schneider's own wmkers' compensation insurance policy did not cover Employee Ramirez. (Motion, p. 6).

For the reasons discussed sujJra, this is not the law in Texas. Texas Labor Code §91.042(c);

Brown, 921 S.vV.2d B35; Garza, 100 S.vV.3d at 2BB.

In support of its position, Employer Schneider cites to a Fifth Circuit case, rather than Texas authority. (Motion, pp. 4-5) (citing Burton v. Freescale Semiconduct01; Inc., 79B F.3d 222, 241-243 (5th Ci1: 2015)). Howeve1; Ewton is inapplicable for several reasons.

First, in Burton, the Fifth Circuit made an "Erie guess" on what decision the Texas Supreme Court would reach. Burton, 79B F.3d at 242. An Erie guess by the Fifth Circuit as to what

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law Texas courts will follow docs not make the decision for Texas courts or establish any binding precedent on Texas state courts. Penrod Drillirzg C01jJ. v. vVilliam.1, 868 S.vV.2d 294, 296 (Tex. 1993) ("\Vhilc Texas courts may certainly draw upon the precedents of the Fifth Circuit, or any other federal or state court, in determining the appropriate federal rule of decision, they arc obl~gated to follow only higher Texas courts and the United States Supreme Court.") (emphasis in original) (citing ivlolzamed v. Exxon C01jJ., 796 S.vV.2d 751, 753-54 (Tex.App. - Houston [14th Dist.] 1990, writ denied); Turner v. PV Int'/ C01jJ., 765 S.vV.2d 455, 470 (Tex.App. - Dallas 1988), writ denied per curiam on other grounds, 778 S.vV.2d 865 (Tex. 1989); Bantow v. State, 742 S.vV.2d 495, 500-0 I ri. 2 (Tex.App. - Austin 1987, writ denied); Summertree Venture III v. Federal Sav. Loan Ins. C01jJ., 742 S.vV.2d 446, 450 (Tex. App. - Houston [14th Dist.] 1987, writ denied)). Accordingly, Burton is not binding precedent on this Court.

Second, Burton misstates Texas law. Specifically, the Fifth Circuit never addresses Texas statutory authority that when a the staffing agency has a workers' compensation insurance policy covering the staffing agency's employee leased to a client company, the client company is liable to the employee under Texas workers' compensation laws.

For workers' compensation insurance purposes, a license holder and the license holder's client shall be cocmploycrs. If either a license holder or a client elects to obtain workers' compensation insurance coverage for covered employees, the client and the license holder are subject to Sections 406.005, 406.034, 408.001, and 411.032.

Texas Labor Code §91.042(c) (emphasis added); Texas Labor Code §408.00l(a) ("Recovery of workers' compensation benefits is the exclusive remedy of an employee covered by workers' compensation insurance coverage or a legal beneficiary against the employer or an agent or employee of the employer for the death of or a work-related injury sustained by the employee.").

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The Fifth Circuit's Burton opinion similady ignores controlling Texas case law in accord with the statute. Brown, 921 S.vV.2d B35 (holding that for wmkcrs' compensation purposes, a staffing agency and its client company arc co-employers, and the staffing agency's wmkcrs' compensation insurance policy covers the client company); Garza, I 00 S.vV.3d at 2BB (holding that when a staffing company has a wmkcrs' compensation insurance policy covering an employee the staffing company assigns to work at a client company, a wmkcrs' compensation claim is the exclusive remedy of the employee against the client company); .1ee also Brown, 921 S.vV.2d at B41-B42 (citing Clzeri:r v. C!zu.1tz, 715 S.vV.2d 742, 743 (Tex. App. - Dallas 1986, no writ); }vfan!zall v. 1U_y.1-R-[fl J\)tex, Inc., B25 S.vV.2d 193, 194 (Tex. App. - Houston [14th Dist.] 1992, writ denied); Gibson v. Grocen SujJjJ/y, Co., Inc., B66 S.vV.2d 757, 759 (Tex. App. - Houston [14th Dist.] 1993, no writ); Pedenon v. AjJjJ/e Corru,gated Packagirzg, Inc., B74 S.vV.2d 135, 136-37 (Tex. App. - Eastland 1994, writ denied); Rodr~guez v. }vfartin LandscajJe }vfana,gement, Inc., BB2 S.vV.2d 602, 603 (Tex. App. - Houston [14th Dist.] 1994, no writ)).

In Pedenon v. AjJjJ/e Corru,gated Packa,gin,g, Inc., B74 S.vV.2d 135 136-37 (Tex.App. - Eastland 1994, writ B42 denied), the plaintiff was employed by Staff Benefits and assigned to Apple. The plaintiff was injured on Apple's premises while under Apple's direction and control. Id. The plaintiff sought and received workers' compensation benefits from Staff Benefits' insurance carric1: The plaintiff tl1cn filed a negligence suit against Apple alleging that even though it had the right to control her work, Apple was not a subscriber under the Act. Id. The trial court granted Apple's motion for summary judgment based on the exclusive remedy provision. Id. The appellate court affirmed, holding that tl1c plaintiff was a "covered employee" of Apple because Apple carried its workers' compensation insurance "tl1rough an arrangement" with Staff Benefits. Id. at 13 7-3B.

Brown, 921 S.vV.2d at B41-B42. Accordingly, as Burton misstates Texas law, it is not binding precedent on this Court. vVilliam.1, B6B S.vV.2d at 296; ivlolzamed, 796 S.vV.2d at 753-54; Turner, 765 S.vV.2d at 470; Bantow, 742 S.vV.2d at 500-0l 1i. 2; Summertree Venture III, 742 S.vV.2d at 450.

For these reasons, Co-Employer Schneider is liable to Employee Ramirez under Texas wmkcrs' compensation laws. Texas Labor Code §9 l.042(c); Brown, 921 S.vV.2d B35; Garza, I 00 I 0 of 27

S.\V.3d at 288; see also Chert)', 715 S.\V.2d at 743; Afanhall, 825 S.\V.2d at 194; Gibson , 866 S.\V.2d at 759; Pedenon, 874 S.\V.2d at 136-137; Rod1~guez, 882 S.\V.2d at 603.

Thus, Employer Schneider cannot prove, conclusively as it must, it is entitled to judgment as a matter of law, and the Court should rightly deny the l\fotion. Tex. R. Civ. P. l 66a(i); Tamaz , 206 S.\V.3d at 581-582; Tex. R. Civ. P. 166a cmt. -1997; Johnson, 73 S.\V.3d at 207; Ford Afotor Co., 135 S.\V.3d at 600-601; Havner, 953 S.\V.2d at 711; Randall, 752 S.\V.2d at 5; }tixon, 690 S.\V.2d at 548-549; Tex. R. Civ. P. 166a(c); Rhone-Poulenc, 997 S.\V.2d at 222-223; Davil', IB8 S.\V.3d 748; Great Am. Reserve Ins. Co., 391 S.\V2d at 47.

C. Defendant Cannot Show it is Entitled to Judgment as a Matter of Law, as Plaintiff Shows a Genuine Question of Material Fact that Defendant Receives Plaintiff's Report of Her \Vorkplacc Injury, and is A,varc of Plaintiff's \Vorkcrs' Compensation Claim.

On or about November 7, 2017, Employer Acrotck hires Employee Ramirez to \Vork at Co-Employer Schneider; and Employer Schneider begins training Employee Ramirez. Ramirez DejJo, 12:7-B; 51:20-25; 56:3-5; 73:13-19; 99:16-100:14 (Ex. A ). Specifically, Employers Acrotck and Schneider hire Employee Ramirez to work in the Quality Control Department. Ramirez DejJo , 79: 10-11 (Ex. A). Employers Acrotck and Schneider know Employee Ramirez has experience as a quality control supervisor: Ramirez DejJo, 43: 14-44: 11; 54: 12-55: lB (Ex. A). At no time during her employment with Schneider and Aerotek, did Schneider and Aerotek issue any write-up for any employment performance deficiency to Employee Ramirez. C01jJorate DejJosition, Horacio Ramirez, 26:22-27:2; 30: 16-22 (Exhibit P).

On April 7, 20 IB, Employer Schneider; specifically through Supervisor Jesus Estrada, is fint made aware of Employee Ramirez' injury when he receives Employee Ramirez' report that she sustains an on-the-job injury. Ramirez DejJo, 133:16-135:15; 151:11-20 (Ex. A ). That same day on April 7, 20 lB Employer Schneider's Senior Manufacturing Supervisor Cesar Hernandez also 11 of 27

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receives Employee Ramirez' report that she sustains an on-the-job injury. Ramirez DejJo, LS I: 11-20 (Ex. A).

Then, on April 8, 20 I B, Employer Schneider's nurse receives Employee Ramirez' report of her on-the-job injury, along with Supervisor Estrada \vhom had received the report the day prior on April 7.RamirezDejJo, 153:1-19; 159:15-21 (Ex.A).

On or about April 8 or 9, 20 IB, Employers Schneider and Aerotek receive notice Employee Ramirez files a workers' compensation ir~UIY report. (Exhibit R, Complete Emergency Care "\Vorkers' Compensation Ir~ury" Report, Ramirez 000068).

On April 9, 201B, Employer Aerotek's Onsite !vfanager Esther Flores receives Employee Ramirez' email reporting her injury. (Exhibit K, Employee Ramirez' April 9, 20 I 8 email to Esther Flores, Ramirez 000076); Ramirez DejJo, 159:22-160:2 (Ex. A ).

Thus, as Employee Ramirez shmvs a genuine question of material fact that Employer Schneider receives Employee Ramirez' report of her workplace injUiy, and is aware of Employee Ramirez' workers' compensation claim, Employer Schneider cannot prove, conclusively as it must, it is entitled to judgment as a matter of law, and the Court should rightly deny the .Motion. Tex. R. Civ. P. 166a(i); Tamaz, 206 S.\V.3d at 581-5132; Tex. R. Civ. P. 166a cmt. -I997;]olm.1on, 73 S.\V.3d at 207; Ford Afotor Co., 135 S.\V.3d at 600-601; Havner, 953 S.\V.2d at 711; Randall, 752 S.\V.2d at 5; Nixon, 690 S.\V.2d at 5413-549; Tex. R. Civ. P. 166a(c); Rhone-Poulenc, 997 S.\V.2d at 222-223; Davil', IBl3 S.\V.3d 7413; Great Am. Re.1erve Ins. Co., 391 S.\V.2d at 47.

D. Defendant Cannot Show it is Entitled to Judgment as a l\fatter of Law, as Plaintiff Shows a Genuine Question of Material Fact that Defendant RetaJiates Against Plaintiff by Terminating Plaintiff at Least in Part for Plaintiff's Reporting an On-the-

Job Injury and Making a \Vorkers' Compensation Claim.

"The first type of prohibited discriminatory behavior identified in the statute [Tex. Labor Code §451.00 !]-discharge-is a classic example of a tangible employment action." Shell~y

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Di1tribution1, Inc. v. Reta, 441 S.\V.3d 715, 719 (Tex. App. - El Paso 2014) (citing Burlir~gton Indu.1trie.1~

Inc. v. Ellerth, 524 U.S. 742, 761, 1lBS.Ct.2257, 2268, 141L.Ed.2d633 (1998)).

"To prove a violation of Section 451.001, it is not necessary to show that a workers' compensation claim was the sole motivation for the termination." Echostar Satellite L.L.C. v. A,guilar, 394 S.\V.3d 276, 287 (Tex. App. - El Paso 2012) (citing Continental Cr?!fee Products Co. v. Cazarez, 937 S.\V2d 444, 450 (Tex. 1996)).

Circumstantial evidence showing a causal link between a termination and the filing of a \vorkcrs' compensation claim includes, but is not limited to:

1. Knowledge of the compensation claim by those making the decision to terminate;

2. Temporal proximity of the termination to the date of the injury or claim;

3. Evidence that the stated reason for the discharge \Vas false; and 4. Failure to adhere to established company policies.

Edw.1tar Satellite LL. C., 394 S.\V.3d at 2B7-2BB.

On April 7, 2018, the same day on which Employee Ramirez \Vas injured at \Vork, hut after Schneider Supervisor Estrada receives Employee Ramirez' report of her injury, Schneider Supervisor Estrada then recruits another Schneider manager, Senior Manufacturing Supervisor Cesar Hernandez, to report that Employee Ramirez was working in a testing booth without her safety gloves on and to recommend to Employer Schneider's Human Resources Manager, Ben Diaz, that Employee Ramirez he terminated. (Exhibit H , "Affidavit of Cesar Hernandez"). Senior l\'1anufacturing Supervisor Hernandez \vholly relics on Supervisor Estrada's recommendation, \Vithout any investigation himself, when he sends an email to Human Resources !vfanagcr Diaz recommending the termination of Employee Ramirez. (Ex. H, Ramirez 000767-000769). Senior

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l\'1anufacturing Supervisor Hernandez later recanted under oath, explaining he "never saw Maria not \Vear her safety gloves" and "it was actually Jesus Estrada and Santiago Segovia who \Vere the ones who told me to put that in my email". (Ex. H, Ramirez 000767). As the cat's paw, Human Resources tvfanagcr Diaz merely docs Supervisor Estrada's bidding \vhcn he directs Employer Acrotck to end Employee Ramirez' assignment -- terminate her. Diaz DejJo , 13: 18-21; 17:16-22; 18:5-7, 10-11; 23:3-10; 4B:3-6, 9-13 (Ex. I); (Ex. H, April 7, 2018 email from Ben Diaz to Esther Flores directing Flores to terminate Employee Ramirez, Ramirez 000768).

On April 20, 201 B, Employer Acrotck's Onsitc M anager Esther Flores terminates Employee R amirez. DejJosition rif &tlzer Flores, 17: 18-20, 22; 18:8-11 (Exhibit]); DejJosition 1if Pri1cilla Petenen, 70: 15-20, 23-25; 71: 12-21 (Exhibit Qj (testifying Acrotck terminates Ramirez at Schneider's request, as Schneider "would not terminate the assignment" of an cmploycc). 1

1. Plaintiff shows a genuine question of material fact that Defendant's employees who knc\v of Plaintiff's report of her workplace injury and her \v01kcr s' compensation claim \Vere the decision makers in Plaintiff's termination.

In the seminal case of Staub v. Proctor Hosp., the United States Supreme Court recognized that "[a]n employer's authority to reward, punish, or dismiss is often allocated among multiple agents. The one who makes the ultimate decision does so on the basis of performance assessments by other supervisors." Staub n Proctor Ho.1/J., 131 S. Ct. 11 B6, 1192-1193 (2011 ) (Scalia, J., discussing the famous cat's pmv analogy and his analysis).

1 Employer Acrotck's Employee Relations Specialist Priscilla Petersen testifies Employer Schneider Electric did not produce any witness statements, video, or write-ups to substantiate the claim that Employee Ramirez removed her safety gloves, except for the claim of Supervisor Estrada. Petenen DejJo , 66:12-14, 16-20; 66:25-67:2, 5; 68:19-21 , 23; 69:11-12, 14-18, 20-23 , 25 (Ex. Qj.

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As the adduced evidence shmvs, Supervisor Estrada falsely accused Employee Ramirez of a safety violation and then recommended her termination and so his discriminatory animus is imputed onto Joint Employers Acrotck and Schneider; even if Supervisor Estrada did not directly make the decision to terminate Employee Ramirez. Staub, 131 S. Ct. at 1194 (holding that if a supervisor performs an act motivated by discriminatory animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable.).

This evidence is important for several rca<;ons. First, it shows that Supervisor Estrada tried to hide the fact that he -- Estrada -- \Vas the one making the false report that Employee Ramirez \Vas not wearing her safety gloves. (Ex. H, Cesar Hernandez Aff.). Second, it shows that Estrada wa<; also trying to hide the fact that he -- Estrada himself -- \vas the one recommending .Maria Ramirez's termination and not Cesar Hernandez. (Ex. H, Cesar Hernandez Aff.). Third, Cesar Hernandez' testimony proves that it is on[y after Employee Ramirez reports her irtjury and disability to E1trada, that Supervisor Estrada recruit<; him -- Cesar Hernandez -- who has no personal knmvlcdgc of the purported policy violation to then make the false rcport2 and to recommend that her assignment be terminated. (Ex. H, Cesar Hernandez Aff.). And Fourth, because Estrada makes this false report and recommendation to terminate mere minutes or hours after Employee Ramirez has made her report, such suffices to shmv a causal connection between her protected activity and the retaliatory discharge. See TVimlwm Steel Co. v. Arias, 831 S.\V.2d 81, 84 (Tex. App. - El Paso 1992, no writ) (finding retaliatory motive \vhcrc employee fired a fnv days follo,ving injury in order to deny employee ability to file claim). Accordingly, pursuant to

2 A<; discussed .1ujJra, Employee Ramirez denies and rcfu tcs that she ever \vorkcd in a testing booth \Vithout her safety gloves on and affirmatively testifies that she ahvays worked with her safety gloves on. Ramirez DejJo, 84:7-16; 107:2-22; 110:11-23; 112:10-14 (Ex. A).

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controlling United States Supreme Court authority, Supervisor Estrada's discriminatory animus is imputed onto Joint Employer Schneider (and Acrotck), even if Supervisor Estrada did not directly make the decision to terminate Employee Ramirez, \vhich termination \Vas effected on April 20, 2018. Staub, 131 S. Ct. at 1194.

For these reasons, Employee Ramirez shmvs a gcnumc question of material fact that Employer Schneider's employees who knew of Employee Ramirez' report of her \vorkplacc injury and her workers' compensation claim were the decision makers in Employee Ramirez' termination. Ec/wstarSatellite L.L.C., 394 S.\V3d at 287.

2. Plaintiff shows a genuine question of material fact regarding the temporal proximity between her date of the injury or workers'

compensation claim and her termination.

In Texas, close timing between an employee's date of the injury or workers' compensation claim and her termination may provide the "causal link" required for a case of retaliation. Echostar Satellite LL. C., 394 S.\V.3d at 288; .1ee, e-.g:, P01terfield v. Galen Hosp. C01jJ., Inc., 948 S.\V.2d 916, 919 (Tex. App. - San Antonio 1997, \vrit denied) (citing Afurwz v. H & Af TV/wle.1ale, Inc., 926 F.Supp. 596, 610 (S. D. Tcx.1996)) (finding retaliatory motive where employee fired within one month of filing workers' compensation claim); vVimlzam Steel Co. v. Arias, 831 S.\V2d Bl, 84 (Tex. App. - El Paso 1992, no writ) (finding retaliatory motive where employee fired a fnv days follmving injury in order to deny employee ability to file claim); Texas DejJt. rif State Health Services v. Rockwood, 46B S.\V.3d 147, 157-1513 (Tex. App. - San Antonio 2015, no pct.) ('\vc hold this temporal proximity of approximately one month to be sufficient to raise a fact issue on the causation clement of Rochvood's retaliatory discharge claim"); Tex. DejJ't 1if Criminal Justice v. Flores, 555 S.\V.3d 656, 668-669 (Tex. App. - El Paso 20 I 8) (holding a five-month time gap between the protected activity and the adverse employment action "raises a fact issue on

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causation vis-a-vis any temporal proximity."). The evidence in the case at bar is even closer because Employers Schneider and Aerotek fired Employee Ramirez is, at most, mere!y less than two weeks after she first reported her \vorker's compensation irtjmy, or as little as several hours after she \Vas irtjured, a<; shO\vn below.

On April 7, 20 IB, Human Resources l\'1anager Diaz, as the cat's paw,:.; directs Employer Aerotek to end Employee Ramirez' assignment -- i.e. terminate her: Diaz DejJo, 13: IB-21; 17:16-22; 1B:5-7, 10-11; 23:3-10; 48:3-6, 9-13 (Ex.!); (Ex. H, April 7, 201B email from Ben Diaz to Esther Flores directing Flores to terminate Employee Ramirez, Ramirez 000768). Staub, 131 S. Ct. at 1194.

On April 20, 2018, Onsite Manager Flores terminates Employee Ramirez, Flores DejJo, 17: 18-20, 22; 18:8-11 (Ex.]); Petenen DejJo, 70: 15-20, 23-25; 71: 12-21 (Ex. Q), a mere thirteen (13) days after receiving notice of Employee Ramirez' on-the-job injury, RamirezDejJo, 133:16-135:15; 151:11-20 (Ex. A).

As the temporal proximity between Employer Aerotek and Employer Schneider's receipt of Employee Ramirez' first report of her on-the-job injury and Aerotek and Schneider's decision to terminate Employee Ramirez is either (1) only hours (less than a day) from Schneider's Estrada-to-Hernandez-to-Diaz request to terminate to Aerotek's Flores or (2) merely thirteen (13) days from the date of Aerotek's pulling of the trigger to terminate, Employee Ramirez sho,vs a genuine question of material fact regarding the temporal proximity bet\veen her date of the injury or \vorkers' compensation claim and her termination. Staub, 131 S. Ct. at 1194; Echostar Satellite L.L. C., 394 S.\V.3d at 288; PortelfiAd, 94B S.\V.2d at 919; J.Uurwz, 926 F. Supp. at 61 O; Arias, 831 S.\V.2d at 84.

:.; Staub v. Proctor Ho.1jJ., 131 S. Ct. 1186, 1192-1193 (2011) (Scalia, J., discussing the famous cat's paw analogy and his analysis).

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3. Plaintiff shows a genuine question of material fact that Defendant's stated reason for Plaintiff's discharge is false and mere pretext.

Employers Acrotck and Schneider allege they terminated Employee Ramirez "because of repeated unsafe conditions where she forgot to put her gloves t\vicc [sic]". (Ex. H, Ramirez 000769). However; Employer Schneider's own Corporate Representative, during the Corporate Representative Deposition, could not identify any alleged violation. Diaz DejJo, 21 :20-22:3 (Ex. 1). Employer Schneider's Corporate Representative admits Employer Schneider did not discipline Employee Ramirez for these alleged, unidentified safety violations, or maintain any record of the alleged safety violations. Diaz DejJo, 39:3-10 (Ex. 1). Employer Schneider then points the finger at Acrotck, claiming this is because EmjJl1tver Aerotek -- as Employee Ramirez' staffing company -- is in charge of any disciplinary actions. Diaz DejJo, 24: 2-25 :H; 39: 11-24 (Ex. l). For its part, Employer Acrotck's Corporate Representative points its finger at Schneider, claiming that it docs not have any record of Employee Ramirez' alleged, "repeated" safety violations, because that it is the responsibility of EmjJlitver Schneider -- as the client company -- to maintain such records. DejJosition 1!f Horacio Ramirez, 27:14-16, IH-21; 29: 22-30: 1, 4-B, 19-22 (Exhibit I'). To wit, Employers Acrotck's and Schneider's "evidence" for shmving Employee Ramirez had engaged in "repeated" safety violations is merely to point at each other for the lack thereof, \vhich is not evidence.

Although Employers Acrotck and Schneider each allege they terminated Employee Ramirez "because of repeated unsafe conditions where she forgot to put her gloves t\vicc [su]" (Ex. H, Ramirez 000769), they cannot, do not, produce ar~y evidence documenting the alleged safety violations for these "repeated unsafe conditions", and instead point at each other as the cause of this cvidcntiary void. Diaz DejJo, 21:20-22:3; 24:2-25:8; 39:3-24 (Ex. l ); Horacio DejJo, 27:14-16, IH-21; 29:22-30:1, 4-H, 19-22 (Ex. I'). Thus, in pointing at each other; Employers lH of 27

Acrotck and Schneider comically expose the truth: these fictitious "safety violations" -- for \vhich there is no proof -- arc mere pretext for covering up their true illegal motivations. Diaz DejJo, 24: 2-25 :8; 39: 11-24 (Ex. I); Horacio DejJo, 27:14-16, 18-21; 29: 22-30: 1, 4-8, 19-22 (Ex. P).

Employee Ramirez denies and refutes that she ever worked in a testing booth without her safety gloves on and affirmatively testifies that she always worked with her safety gloves on. Ramirez DejJo, 84:7-16; 107:2-22; 110:11-23; 112:10-14 (Ex. A).

Q And did you have to wear gloves?

A. Yes, ma'am.

Q And what kind of gloves did you have to wear?

A. \Ve had to \Vear a regular glove, a latex glove, I guess. It would -- like plastic. And then, on top of that, those other gloves \vhcn we \Vere running electricity through the machine.

Q And they're special electric -- electrical-resistant gloves, right?

A. Yes, ma'am.

Ramirez De/Jo, 84:7-16 (Ex. A).

Q Tell me about \vhcn that happened.

A ..Mr: Estrada came in, and I \Vas with the other gentlemen that we \Vere testing the unit.

And when we finished testing the unit -- because I wasn't allowed to actually test the unit myself -- he's like, Okay, we're done. And then you wave your hand to shut off the electricity, right? So everything shuts off automatically:

He \vavcd his hand, shut off the electricity, and we started taking off our gloves.

And Estrada \Vas standing the \vhole time \VC \Vere doing this, and he start<; screaming. He goes, \Vhy arc your gloves off? I'm like, My gloves aren't off. He goes, Your gloves arc off. I go, No, my gloves aren't off. And he's like, Get out of the booth. Okay.

I got out of the booth. He's like, You cannot be in the booth when the electricity is on \vithout your gloves. I'm like, I knmv that. He goes, Your gloves were off. I go, My gloves were not off. And he goes, You knmv \vhat, let's just leave it at that. I'm like, Fine. And that was it.

Ramirez DejJo, 107:2-22 (Ex. A) (emphasis added).

A. There wouldn't he no way I would he in that without gloves. I'm not dumb.

Q Right. I understand.

A. I'm sorry.

Q So that --

A. I wouldn't be in there without my gloves, without my proper -- there \Vas no \vay you could be in there, because even if an electric light \Vould shoot out from the machine, you could get zapped, even \vith gloves or without gloves. You know, that's \vhy

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you had to wear like special clothing, because just in case anything \vould zap in there, something wasn't hooked up right, something was electrical.

Ramirez DejJo, 110: 11-23 (Ex. A ) (emphasis added).

A. No. Actually, \vhen -- when he asked me to get out of the booth, I still had my gloves on. And he goes, You didn't have your gloves on. He goes, You \Vere taking off your gloves. I go, No. He's like, \Ve'll talk about this later; and he walked off Ramirez DejJo, 112: 10-14 (Ex. A) (emphasis added).

Accordingly, given the Texas Supreme Court's affirmation that, in ruling on a summary judgment, all evidence favorable to the non-movant must be taken as true, every reasonable inference must be indulged in favor of the non-movant, and any doubts must be resolved in the non-movant's fav01; }fixon, 690 S.\V.2d at 548-549, Employee Ramirez shO\vs a genuine question of material fact that Employer Schneider's stated reason for Employee Ramirez' discharge is false and mere pretext, Echostar Satellite L.L. C., 394 S.\V.3d at 2B7.

4. Plaintiff shO\vs a genuine question of material fact that Defendant did not adhere to established company policies \vhen terminating Plaintiff.

·Merely assuming m;guendo that Employee Ramirez in fact had one or more safety violations \vhere she did not wear her safety gloves, Supervisor Estrada's testimony shows \vhy Employers Aerotek and Schneider cannot prove a legitimate non-discriminatory reason for their termination of Employee Ramirez, because Defendant<; did not previously follO\v their O\vn policy concerning this termination. Diaz DejJo, 11:11-12:15 (Ex.!); Ramirez DejJo, 115:2-13; 161:23-162:15; 163:25-164:5; IBB:24-IB9:13 (Ex. A ); (Ex. K;; (Ex. D). Texas authority holds that terminating an employee for violating a previously unenforced policy -- or a policy which the defendant employer does not uniformly enforce -- constitutes evidence of pretext, i.e. is evidence that the true reason for termination is not the one stated by the employer but is, rather, more likely an illegal animus. Echostar Satellite L.L.C., 394 S.\V3d at 287.

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Specifically, Employer Schneider's Corporate Representative testifies that had Employee Ramirez -- who \vorkcd in a testing booth and not the \varchousc -- not \vorn her safety gloves, it \vould be grounds for "immediate termination." Diaz DejJo, I I: I I-I 2: I 5 (Ex. I;. Even if Employee Ramirez had prim; "repeated" safety violations, \vhich \vould have been grounds for "immediate termination", Diaz DejJo, I I:I I-I2:I5 (Ex. I;, Employers Acrotck and Schneider did not terminate Employee Ramirez when these alleged, prior safety violations occurred.

Indeed, Employee Relations Specialist Petersen also admits Employers Aerotek and Schneider did not write up, document or discipline Employee Ramirez for any of the alleged previous "repeated" safety violations but instead assigned additional \vork. Petenen DejJo, 6 7: I 7-6B: I 0 (Ex. Q). In Texas, such is evidence of these Employers' illegal animus. Echostar Satellite LL. C, 394 S.\V.3d at 2B 7.

5. Plaintiff shows a genuine question of material fact that Defendant has a "pattern, practice and culture" of engaging in illegal discrimination and retaliation against workers who require an accommodation or temporary leave from work.

This "causal link" bct\vccn Employee Ramirez' date of injury or workers' compensation claim and Employee Schneider's termination of Employee Ramirez, as discussed sujJra, is not the only evidence of an illicit motivating factor in the decision to terminate, hO\vcvcr.

Controlling Texas precedent holds that evidence of discrimination against other employees \vithin the same protected class is evidence of an illegal animus. Specifically, employees who have similarly reported a disability, physical impairment, mcnta.l or emotional impairment, injmy, or work-place injury and \Vere discharged arc evidence of discriminatory intent. Durbin v. Dal-Briar Co1jJ., B7 I S.\V.2d 263, 268-269 (Tex. App. - El Paso I994) (holding the trial court erred by excluding evidence of defendant's termination of other employees, supporting the claim that the employer discriminated and retaliated against the plaintiff as part

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of "a routine practice or policy of discriminating against workers \vho suffered on-the-job injuries, and [the plaintiff] \Vas one victim of that policy."); Haggar Clothir~g Co. v. Hernandez, 164 S.\V.3d 407, 423-425 (Tex. App. - Corpus Christi 2003), rev'd on other grounds, 164 S.\V3d 386 (Tex. 2005) (approving the trial court's admission of "testimony by former [defendant's] employees regarding the company's alleged 'pattern and practice' of discrimination against other employees who had suffered work-related injuries", as "the rules of evidence allmv the admission of evidence of the habit of a person, or of the routine practice of an organization, if the evidence is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.") (citing Tex. R. Evi<L 406).

The testimony of an On-site Coordinator for a staffing company at Schneider; !vfaria G.

Castaneda is important in this regard. Castaneda testifies as to Employer Schneider's discriminatory and retaliatory acts against employees who require an accommodation or temporary leave from work. (Exhibit }v~ Affidavit of Maria Castaneda, p. 2). l\'1s. Castaneda describes Employer Schneider's "pattern, practice and culture'', as follows:

Given my time in this position, I worked on a daily basis \vith Schneider Electric managers, supervisors and Human Resources managers and I am intimately familiar with how Schneider Electric handled and treated their employees, including Schneider Electric's own employees, employees leased from Volt (my employer)

and from other employee leasing companies such as Aerotek, and In-Staff from \vhich Schneider Electric also leased employees. [... ]

Schneider Electric's managers, supervisors and Human Resources l\ 1anagers at 1

the 1600 Northwestern Drive facility, the facility I am familiar with, had a pattern, practice and culture of discriminating and retaliating against employees who were disabled, became disabled, or who were injured at work and filed \v01ker's compensation claims. Indeed, Schneider Electric's HR Managers, managers and supervisors saw themselves as being above the law and believed that they did not have to follow any law against illegal discrimination or illegal retaliation as described bclmv. Needless to say, this belief that Schneider Electric was above the law and that they did not have to follow any law against illegal discrimination or illegal retaliation was not solely limited to disabilities or workers' compensation claimants, but to any

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employee \Vho dared to complain about sexual harassment, sex discrimination, age discrimination, race or ethnic discrimination. This belief turned into a pattern, practice and culture of discriminating and retaliating against their own employees and their leased employees \vho complained of illegal harassment or discrimination, as mentioned above.

(Ex. .N~ Affidavit of l\faria Castaneda, p. 2) (emphasis added). Ms. Castaneda describes Employer Schneider's "pattern, practice and culture", as follo\vs:

The pattern \vas as follows: If an employee was injured at work and filed a workers' compensation claim, or became disabled, or complained of sex, age, race or any ty1)e of illegal discrimination or illegal harassment, Schneider Electric was going to release, that is, end the assignment, terminate, that employee as soon as possible. That was simply, their game plan.

[... ]

Numerous times I was told by Schneider Electric's Safety Manager Fernando Ramirez to terminate employees who had become disabled, or injured, or because of some other illegal reason, including sexual harassment, or sex discrimination, as described above, precisely because Schneider Electric either did not want to provide reasonable accommodations to their disabilities and or injury restrictions, or deal \vith the complaint, despite the fact that they, Safe[t]y Manager Fernando Ramirez and HR Manager Leonarda Ramirez, knew that discrimination and retaliation against disabled employees and \vorker's compensation claimants, and against those who report other illegal conduct, such as sexual harassment, etc. was illegal.

\Vhen I \vould push back, asking them not to "release" or fire a disabled or injured employee, Safety !vfanager Ramirez would shrug his soldiers, and insist that \Ve "release them," that is fire them, because "they did not \Vant them there at Schneider because they \Vere taking up a slot; that they needed an able \Vorking body there and not someone who \vas injured or disabled."

[... ]

This method of operation, of firing employees, retaliating against Volt leased employee[s], Aerotek leased employees and In-Staff leased employees by Schneider Electric was common practice whenever one of these employees was injured at work, or made any type of report or complaint, such as for sexual harassment or sex discrimination, age discrimination, race discrimination, disability discrimination etc. That's just the way Schneider Electric runs its operation here in El Paso under both H.R. Managers Leonarda Ramirez and H.R.

Manager Ben Diaz.

[...]

Numerous times, I had conversations \vith HR tvfanager Ramirez about firing/ terminating/releasing [...] employees who engaged in other legally protected conduct. I \vould tell her not to let these types of employees go or fire them in this way because it \Vas illegal. HR rvfanager R amirez \VOuld say, 'just do it [fire themJ' do what you have to

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do; we' re the customer and you' re the client and \VC want them released." Schneider;

through HR l\'1anagcr Ramirez, other managers, including Fernando Ramirez, and other supervisors \vould just instruct us to let these employees go "due to performance" even though there were NO PREVIOUS \vritc ups in the file about performance. In other words, Schneider Electric would routinely make up false reasons to "release" or fire employees so Schneider Electric's managers didn't have to comply with the law.

(Ex. }v~ Affidavit of Maria Castaneda, pp. 2, 5, 8-9) (emphasis added). Durbin, 871 S.\V.2d at 268-269 (holding the trial court erred by excluding evidence of defendant's termination of other employees, supporting the claim that the employer discriminated and retaliated against the plaintiff as part of "a routine practice or policy of discriminating against \Yorkers who suffered on-the-job ir~urics, and [the plaintifi] \Vas one victim of that policy."). ·Maria Castaneda further describes hO\v Employer Schneider's H.R. Manager Ben Diaz instructs Ms. Castaneda to terminate an employee who requested a reasonable accommodation by falsely claiming the employee lied on her resume:

In approximately the last week of :M arch 201B, a Friday, I had been going back and forth \Vith my HR Manager at Volt - Volt HR ·Manager Sandra Fcrisc- about an employee named Evelyn Gonzalez \vho had a pre-existing disability that \Vas aggravated due to her driving the forklift for Schneider Electric. ... My Volt HR Manager Fcrisc asked me to speak to Schneider Electric's HR Manager Ben Diaz to let him know that \VC \Vere to take her back \Vith restrictions and to find out from him if \VC - Schneider Electric and Volt - were going to accommodate her. Because HR .Manager Ben Diaz was not there I had to speak with Safety ·Manager Fernando Ramirez about accommodating Evelyn Gonzalez's restrictions. Safety l\'1anagcr Fernando R amirez said, "no, \VC can't do it, we can't accommodate her; there's no place to put her:" At that time, I smv HR l\'1anagcr Ben Diaz pass by and I asked him to come into Safety M anager Fernando Ramirez' office to discuss employee Evelyn Gonzalez. I explained to HR Manager Ben Diaz what I had just explained to Safety Manager Fernando Ramirez. At that time, Fernando Ramirez said, "I'm adamant that she is not coming back." ... Ben Diaz then said, "well she [Evelyn Gonzalez] lied. She lied." I asked, "how did she lie." And HR Ben Diaz then said "she lied on her application because the application asked if she could perform her job." I said, the application doesn't say that. I' vc done backgrounds for ADP for about I 0 years and I've never seen it printed that an employer \Vould ask that question. Then HR Ben Diaz says, "maybe you should implement that, you should ask if they arc able to perform the job on the application." I said, okay. \\That else could I have said. HR Ben Diaz, then said, "talk to your HR and let them know that we [Schneider Electric] are not going to accommodate her

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[employee Evelyn Gonzalez] and she needs to be released." As stated above, being "released" means being fired but that's the term that Schneider Electric uses.

(Ex. C, Affidavit of :Maria Castaneda, pp. 6-7) (emphasis added).

This evidence buttresses and piles onto Plaintiffs evidence in this case where Employer Acrotck and Employer Schneider; in particular; make up £1.lsc allegations (of multiple "repeated" violations by Employee Ramirez which arc wholly unsubstantiated by ar~)! prior disciplinary write up, documentation, \Vitncss sta tements, or vidcos)'1 as a pretext to terminate Employee R amirez in retaliation for reporting an on-the-job irtjury and filing a workers' compensation claim. Ramirez DejJo, 84:7-16; 107:2-22; 110:11-23; 112:10-14; 115:2-13; 133:16-135:15; 151:11-20; 153:1-19; 159:15-160:2; 161:23-162:15; 163:25-164:5; 1H8:24-U39:13 (Ex. A ); (Ex. D); (Ex. H ); Diaz DejJo, 11: 11-12: 15; 13: IH-21; 17: 16-22 ; 1H:5-7, 10-11 ; 21:20-22:3; 23:3-10; 24:2-25:8; 39:3-24; 48:3-6 , 9-13 (Ex. l ); Flores DejJo, 17:U3-20, 22; 1H:8-l l (Ex. ]); (Ex. KJ; Horacio DejJo, 27:14-16, 18-21; 29:22-30:1, 4-8, 19-22 (Ex. P); Petenen DejJo, 66:12-14, 16-20; 66:25-67:2 , 5; 67:17-68:10; 68:19-21, 23; 69:11-12 , 14-IB, 20-23, 25; 70:15-20, 23-25; 71:12-21 (Ex. Q); (Ex. R).

Thus, as Employee Ramirez shO\vs a genuine question of material fact that Employer Schneider retaliates against Employee Ramirez by terminating Employee Ramirez at least in part for Employee Ramirez ' reporting an on-the-job irtjury and making a workers' compensation claim, Employer Schneider cannot prove, conclusively as it must, it is entitled to judgment as a matter of la,v, and the Court should rightly deny the !vfotion. Tex. R. Civ. P. l 66a(i); Tamaz, 206 S.\V.3d at 5Hl-5H2; Tex. R. Civ. P. 166a cmt. -1997; ]ohn1on, 73 S.\V3d at 207; Ford J.\ilotor Co. , 135 S.\V.3d at 600-601; Havner, 953 S.\V.2d at 711; Randall, 752 S.\V.2d at 5; }V"ixon, 690 S.\V.2d at

1 A<i discussed .1ujJra, Employee Ramirez denies and rcfu tcs that she ever \vorkcd in a testing booth \Vithout her safety gloves on and affirmatively testifies that she ahvays worked with her safety gloves on. Ramirez DejJo, 84:7-16; 107:2-22; 110:11-23; 112:10-14 (Ex. A ).

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548-549; Tex. R. Civ. P. 166a(c); Rhone-Poulenc, 997 S.\V.2d at 222-223; Davi1, IH8 S.\V.3d 748; Great Am. Reserve Ins. Co., 391 S.\V.2d at 47. IV PRAYER.

For the foregoing reasons, a<; Plaintiff shmvs a genume dispute as to material facts regarding her \Vorkers' Compensation Retaliation claim, and Defendant cannot show it is entitled to judgment a<; a matter of lmv, the Court should rightly deny Defendant's tvfotion in its entiretv.

SIGNED on November 24, 2020.

Respectfully submitted,

Chavez Law Firm

2101 N. Stanton Street

El Paso, Texas 79902

(915) 351-7772

(915) 351-7773 f<

Enrique havez,jr.

State Bar No.: 24001H73

enriquechavezjr@chavezla'''J)C.com Michael R. Anderson

State Bar No.: 24087103

chavezlawfirm +manderson@chavezlmvpc.com Christine A. Chavez

State Bar No.: 24109717

CAChavez@ChavezLawPC.com

Attornq.1for Plaintiff

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CERTIFICATE OF SERVICE

I hereby certify that true and correct copy of the foregoing instrument \Vas e-servcd through the court's e-filing system on November 24, 2020 to Defendant's counsel:

Schmover Reinhard LLP 8000 IH 10 \Vest, Suite 1600 San Antonio, Texas 78230 Telephone: (210) 447-8033 Facsimile: (210) 447-8036 Christine E. Reinhard crcinhard@sr-llp.com Dylan Farmer dfarmcr@sr-llp.com

\Vick Phillips Gould & l\fartin, LLP 3131 McKinney Avenue, Suite 100 Dallas, Texas 75204 Telephone: (214) 692-6200 Facsimile: (214) 692-6255 Andre\v M. Gould andrew.gould@,vickphillips.com Molly M. Jones mollyjones@wickphillips.com Dana M. Hilzendagcr dana.hilzcndager@\vickphillips.com

Ray Pena & McChristian 5822 Cromo Drive El Paso, Texa.s 79912 Telephone: (915) 832-7250 Facsimile: (915) 832-7333 Jefferey \V. McElroy jmcelroy@raylaw.com

Enrique avez,jr.

Michael R. Anderson

Christine A. Chavez

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Tab 4:

El Paso County - 327th District Court Filed 12/1/2020 1123 AM Norma Favela Barceleau

District Clerk

El Paso County

2019DCV3145

IN THE 327TH DISTRICT COURT EL PASO COUNTY, TEXAS

MARIA RAMIREZ, § §

Plaintiff, § v. § Cause No. 2019DCV3145 §

AEROTEK, INC. and SCHNEIDER § ELECTRIC USA, INC. d/b/a § SCHNEIDER ELECTRIC, § §

Defendants. §

DEFENDANT SCHNEIDER ELECTRIC USA, INC.'S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

Plaintiff's Response makes only one argument relevant to Schneider Electric's Motion for Summary Judgment ("MSJ") - that even though Schneider Electric did not provide workers'

compensation coverage to Plaintiff, it could still be liable for Tex. Lab. Code§ 451.011 ("Section 451 ")workers' compensation retaliation because under the Professional Employers Organization Act, Texas Lab. Code Chapter 91 (the "PEO Act"), a client of a Professional Employer Organization ("PEO") is a co-employer for certain workers' compensation purposes. The main flaw in the argument is that Aerotek is not a PEO. As a result, the PEO Act is inapplicable.

Plaintiff's other arguments concern the merits of her claim and are irrelevant to the MSJ.

I.

PLAINTIFF'S RESPONSE FAILS TO REFUTE ANY OF THE UNDISPUTED FACTS

In its MSJ, Schneider Electric spelled out the undisputed, material facts demonstrating summary judgment dismissal is proper. Among them:

(1) Schneider Electric contracts with staffing companies, including Aerotek, a global staffing company, to supply it with temporary personnel,

SCHNEIDER ELECTRIC'S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT - Page I

(2) Schneider Electric provides workers' compensation coverage to its direct employees but does not provide such coverage to temporary workers (including Ramirez), and

(3) Aerotek provides its workers with workers' compensation coverage.

MSJ iii! 1-3. Nothing in Ramirez's Response disputes these statements.

II.

AEROTEK IS NOT A PEO, IS NOT LICENSED AS A PEO, AND IT ONLY SUPPLIES TEMPORARY PERSONNEL TO SCHNEIDER ELECTRIC

As set forth in the MSJ, Section 451 claims - workers' compensation retaliation - can only be lodged against the provider of workers' compensation benefits to a plaintiff. In fact, Texas permits employers to choose to not subscribe to workers' compensation, and those non-subscribing employers cannot be liable under Section 451 because it would make no sense for such an employer to intentionally discriminate against an individual for filing a workers' compensation claim when the entity is not the provider of such benefits. MSJ, p. 4. This was made clear by the Texas Supreme Court in Tex. Mexican Ry. Co. v. Bouchet, 963 S.W.2d 52, 56 (Tex. 1998):

[T]here can be no doubt that only employees of subscribers to the Act can bring workers' compensation claims ... [and] only subscribers can be subject to [Section 451] claims .... Forbidding retaliation against an employee for seeking monetary benefits under the [Act] presupposes that the employer is a subscriber.

Id. (emphasis added) (internal citations omitted).

Plaintiff responds by arguing-without evidence-that Aerotek is a PEO and that its client, Schneider Electric, is necessarily a co-employer based on the PEO Act. Response, pp. 1-2, 4-10. PEOs, however, are different from temporary staffing agencies in that they do not supply labor to worksites. Instead, PEOs co-employ a client's existing permanent workforce. See Tex. Lab. Code § 91.00ll(a) ("A coemployment relationship is intended to be an ongoing relationship rather than a temporary or specific one ... Coemployment is not a joint employment arrangement.").

Plaintiff's argument that the PEO Act applies fails for multiple reasons. First, it 1s undisputed that Aerotek provides only temporary personnel and that Ramirez herself was a

SCHNEIDER ELECTRIC'S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT - Page 2

987

temporary worker on assignment to Schneider Electric. See MSJ, Ex. B, ii 2 and Ex. 3, ii 3. She admitted as much in her deposition. See Response, Exh. A, 64: 18-25. Under the PEO Act, an entity

that provides temporary personnel is expressly excluded from the statute. Tex. Labor Code § 91. 001 (14). The controlling Robles v. Mount Franklin Food, L.L. C. case addresses this exact issue:

The [PEO Act], however, governs organizations that provide "Professional employer services" and excludes "temporary help[.]" Tex. Lab. Code Ann. § 91.001(14)(a). And the "co-employment relationship" means one that "is intended to be an ongoing relationship ratherthan a temporary or specific one[.]" Given the statutory definitions under the [PEO Act], that Chapter (found in Section 91 of the Labor Code) does not apply to Robles's [temporary] employment.

591 S.W.3d 158, 168 (Tex. App.-El Paso 2019, pet. denied).

Second, Texas requires PEOs to secure licensure through the Texas Department of Licensing and Regulation (see Tex. Lab. Code§ 91.001(11)), and its website (tdlr.texas.gov/LicenseSearch/) shows that Aerotek is not licensed in Texas as a PEO. The Court can take judicial notice that Aerotekis not so licensed. Tex. R. Evid. 20l(b). 1 As a whole, Plaintiff's focus on alleged "co-employment" is a red herring, and she fails to cite to any authority involving a Section 451 claim that applies a co-employer analysis. 2

1 Curiously, four times in the Response, Plaintiff sets forth the text of the Tex. Lab. Code § 91.042(c), which states:

For workers' compensation insurance purposes, a license holder and the license holder's client shall be coernployers. If either a license holder or a client elects to obtain workers' compensation insurance coverage for covered employees, the client and the license holder are subject to Sections 406.005, 406.034, 408.001, and411.032.

(emphasis added); see Response, pp. 1, 4, 7, 9. Because that provision does not reference Section 451, it is not clear why Ramirez places such importance on it. The fact that it lists some sections of the Workers' Compensation Act and not others leads to the expressio unius conclusion that the legislature intended to exclude Section 451 from this coemployment concept applicable to PEOs. There is, however, an analogous statutory provision applicable to Schneider Electric and Aerotek It provides in part:

For workers' compensation insurance purposes, if a temporary employment service elects to obtain workers' compensation insurance, the client of the temporary employment service and the temporary employment service are subject to Sections 406.034 and 408.001.

Tex. Lab. Code § 93.004(b) (emphasis added). Here, the legislature removes the coemployer concept, a clear and important difference between PEOs and temporary employment services. 2 Plaintiffs reference to a different concept, joint employment, is likewise inapplicable. In support of her misguided argument, Plaintiff discusses a years-old summary judgment ruling that has no bearing on this case. Response, p. 5. A

SCHNEIDER ELECTRIC'S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT - Page 3

III.

BURTON RELIES ON TEXAS SUPREME COURT PRECEDENT THAT RAMIREZ FAILS TO EVEN ADDRESS

Plaintiff's argument regarding Burton v. Freescale Semiconductor. Inc .. 798 F.3d 222 (5th Cir. 2015) not being controlling (Response, p. 9) misses the point. Schneider Electric does not contend that case is controlling precedent. Instead, it is the Fifth Circuit's logic and reliance upon Texas Supreme Court case law that is compelling. Moreover, Plaintiff's argument might be persuasive if there was a Texas Supreme Court (or even a Court of Appeals) decision that concluded a Section 451 claim could be brought against a temporary staffing company's client. There is none. But there is Burton, a recent Fifth Circuit decision premised on Texas Supreme Court cases to find that the plaintiff could not maintain a Section 451 claim against the client of a temporary staffing agency. Burton, 798 F.3d at 243; see MSJ, pp. 4-5. Its reasoned opinion rests solely on Texas Supreme Court cases and is consistent with the language and the purpose of the statute encouraging workers' compensation coverage. Making an entity like Schneider Electric liable to its staffing company's employee, when a non-subscriber would not be liable, would wholly undermine the statutory scheme. Id. 3 Plaintiff's second argument regarding Burton -that the Fifth Circuit got it wrong because of the PEO Act (Response, p. 9) - is likewise not persuasive. As with the fatal flaw in Plaintiff's main response to the MSJ, Burton did not involve a PEO; it involved a temporary staffing agency. Consequently, the language of the PEO Act is inapplicable.

summary judgment denial in a federal case with different parties and different claims is in no way binding on this Court or applicable to a Section 451 claim.

3 Notably, the plaintiff in Burton made a similar co-employer argument that Plaintiff lodges here, and the Fifth Circuit rejected it. Even having found that defendants were joint employers for the separate disability discrimination claim, the Court found that, with regard to the Section 451 claim, "since Freescale [the staffing company client] is not the 'subscriber' responsible for [plaintiffs] workers' compensation coverage, the question of employment is beside the point." Burton, 798 F.3d at 242, n. 21.

SCHNEIDER ELECTRIC'S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT - Page 4

Plaintiff's next argument - that Burton ignored "controlling" Texas case law - is also not persuasive. Plaintiff cites to several court decisions she claims demonstrate that the PEO Act requires finding a co-employer relationship between Schneider Electric and Aerotek. Id. at 10. All of those cases, however, concern the exclusive remedy of workers' compensation for an on-the- job injury (Tex. Lab. C. § 408) and none are Texas Supreme Court cases (or even El Paso Court of Appeals cases). See Appendix A, Chart of Cases. Schneider Electric does not dispute that if a temporary worker is injured at its worksite, the staffing agency's workers' compensation policy- and not a direct claim against Schneider Electric (or the staffing company) for negligence - is the temporary worker's exclusive remedy forthe injury. See Tex. Lab. Code§ 93.004(b). This would be true regardless of whether Schneider Electric was a subscriber as to its direct employees. See Robles, 591 S.W.3d at 166. That, however, has nothing to do with what is at issue in this lawsuit and, in particular, this MSJ.

IV.

PLAINTIFF'S ARGUMENTS ON THE MERITS ARE IMMATERIAL

As set forth herein, the MSJ focused solely on one ground - that dismissal of Plaintiff's Section 451 claim against Schneider Electric is proper because it was not a subscriber of workers' compensation benefits to temporary Aerotek employee Maria Ramirez. Plaintiff, nonetheless, spends more than half of her 27-page MSJ Response arguing the merits of her Section 451 claim. See Response, pp. 11-27. None of that bears on Schneider Electric' s MSJ. The same is true for the hundreds of pages of exhibits Plaintiff filed with her MSJ Response. 4 The MSJ does not concern the merits of Plaintiff's claim; it concerns only whether a Section 451 claim is viable against an entity that, for the plaintiff, did not provide or subscribe to workers' compensation benefits.

4 It is unclear whether Plaintiffs Response and its voluminous (and unnecessary) exhibits were ever accepted for filing by this Court.

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v.

CONCLUSION

Schneider Electric did not provide workers' compensation benefits to Plaintiff. As a result, based on controlling case law from the Texas Supreme Court, as well as compelling case law addressing the identical issue from the U.S. Fifth Circuit Court of Appeals, her claim for workers' compensation retaliation under Section 451 fails as a matter of law.

For the reasons set forth herein, Schneider Electric respectfully requests that this Court enter summary judgment in its favor, dismissing Ramirez's claim against Schneider Electric, and award it all other remedies to which it may be entitled.

Dated: December 1, 2020 Respectfully submitted,

l s/Andrew M. Gould

Andrew M. Gould

Texas State Bar No. 00792541 andrew.gould@wickphilli ps.com Molly M. Jones

Texas State Bar No. 24100271 molly. fones@wickphillips.com Dana M. Hilzendager

Texas State Bar No. 24106099 dana.hilzendager@wi ckphilli ps. com

WICK PHILLIPS GOULD & MARTIN, LLP 3131 McKinney Avenue, Suite 100 Dallas, Texas 75204

Telephone: 214.692.6200

Facsimile: 214.692.6255

ATTORNEYS FOR SCHNEIDER

ELECTRIC USA, INC.

SCHNEIDER ELECTRIC'S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT - Page 6

CERTIFICATE OF SERVICE

Pursuant to the Texas Rules of Civil Procedure, the undersigned attorney of record certifies that a copy of the foregoing instrument was served upon all counsel of record via the court's electronic filing system on December 1, 2020.

ls/Andrew M. Gould

Andrew M. Gould

SCHNEIDER ELECTRIC'S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT - Page 7

APPENDIX A

Cases Cited in the Response (pp. 10-11) that Plaintiff contends are "controlling" and were "ignored" by the Fifth Circuit in Burton in its analysis of a Section 451 claim

Case Name Court Date Type of Sect. Subsequent Case History case 451

Claim?

Brown v. Aztec Rig Houston 1996 Exclusive No Superseded by Statute as stated Equipment, Inc., (14th) Remedy in Robles v. M aunt Franklin 921 S.W.2d 835 (Tex. Food, LLC, 591S.W.3d158, App. - Houston [14th] 168 (Tex. App.-El Paso 2019, 1996) pet. denied) Garza v. Excel Houston 2002 Exclusive No Overturned in part by Garza v. Logistics, (1st) Remedy Exel Logistics, Inc., 161 100 S.W.3d 280, 284 S.W.3d 473 (Tex. 2005). (Tex. App. - Houston flstl 2002) Marshall v. Toys-R-Us Houston 1992 Exclusive No Superseded by Statute as stated Nytex, Inc., (14th) Remedy in Pederson v. Apple 825 S.W.2d 193, 194 Corrugated Packaging, Inc., (Tex. App. -Houston 874 S. W.2d 135, 138 (Tex. [14th Dist.] 1992, writ App. 1994), writ denied (July denied) 28, 1994) Gibson v. Grocers Houston 1993 Exclusive No Supply, Co., Inc., (14th) Remedy 866 S.W.2d 757, 759 (Tex. App. -Houston [14th Dist.] 1993, no writ) Pederson v. Apple Eastland 1994 Exclusive No Corrugated Packaging, Remedy Inc., 874 S.W.2d 135, 136-37 (Tex. App. - Eastland 1994, writ denied) Rodriguez v. Martin Houston 1994 Exclusive No Landscape (14th) Remedy Management, Inc., 882 S.W.2d 602,603(Tex. App.- Houston [14th Dist.] 1994, no writ) Cherry v. Chustz, Dallas 1986 Exclusive No 715 S.W.2d 742, 743 Remedy (Tex. App. - Dallas 1986, no writ)

Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.

Karen Ferrari on behalf of Andrew Gould Bar No. 00792541 karen.ferrari@wickphillips.com Envelope ID: 58777121 Status as of 11/3/2021 8:46 AM MST

Associated Case Party: Maria Ramirez Name BarNumber Email TimestampSubmitted Status Enrique Chavez, Jr. enriquechavezjr@chavezlawpc.com 11/2/2021 2:51:42 PM SENT Michael RAnderson manderson@chavezlawpc.com 11/2/2021 2:51:42 PM SENT Christine AChavez cachavez@chavezlawpc.com 11/2/2021 2:51:42 PM SENT

Associated Case Party: Schneider Electric USA, Inc. d/b/a Schneider Electric Name BarNumber Email TimestampSubmitted Status Molly Jones molly.jones@wickphillips.com 11/2/2021 2:51:42 PM SENT Andrew Gould andrew.gould@wickphillips.com 11/2/2021 2:51:42 PM SENT Dana Hilzendager dana.hilzendager@wickphillips.com 11/2/2021 2:51:42 PM SENT Noemi Lopez nlopez@raylaw.com 11/2/2021 2:51:42 PM SENT

Case Contacts Name BarNumber Email TimestampSubmitted Status Karen Ferrari karen.ferrari@wickphillips.com 11/2/2021 2:51:42 PM SENT Christine EReinhard creinhard@sr-llp.com 11/2/2021 2:51:42 PM SENT Dylan AFarmer dfarmer@sr-llp.com 11/2/2021 2:51:42 PM SENT