The Client
A driver who wanted to keep working
Joseph Ball grew up in Richmond, Texas. After a few different jobs, he found his calling behind the wheel of a truck, driving for two lumber companies before joining Alleyton Resource Company in 2008 as a concrete mixer truck driver.
By every measure — including the testimony of Alleyton’s own witnesses at trial — he was the kind of employee a company should want to keep. He earned every available raise. He pushed to learn new equipment, the pump truck, the front loader, and harbored an ambition to one day operate the entire cement plant.
Then, on September 1, 2015, he came to work at 3:00 a.m., moved between job sites, and in the pre-dawn dark stepped in a hole he could not see. He severely injured his leg.
The Law
Texas Labor Code § 451.001
A Texas employer may not discharge or otherwise discriminate against an employee because the employee filed a workers’ compensation claim in good faith, hired a lawyer to represent the employee in a claim, instituted a workers’ compensation proceeding, or testified in one. Workers fired in violation of this statute may recover lost wages, mental anguish damages, and — where the conduct rises to gross negligence or malice — exemplary damages.
Ball filed a workers’ compensation claim and eventually retained a lawyer. He returned to light duty as he healed. On January 15, 2016, his doctor cleared him for full duty with no restrictions.
From that day forward, for ten months, Ball worked through significant pain. He never hid it. He told his supervisors plainly that it hurt, that he was slower than he used to be, but that he was there and he was getting the work done.
I am here; I am going to do what I need to do, as far as providing.
Joseph Ball, Trial Testimony
During those ten months, Alleyton issued Ball no write-ups. No incident reports. No disciplinary actions. Nothing in his personnel file suggested a safety problem or a performance problem. His supervisor admitted at trial that company rules required him to document and report any performance issues — and there was nothing to document.
The Termination
Three days that ended a decade-long career
October 12 – 14, 2016
Oct 12
Ball is filmed by his supervisor at the end of a 15-hour shift, moving a heavy chute slowly. The video is shared up the chain to senior management.
Oct 13
Ball reports a workplace slip-and-fall to Alleyton.
Oct 14 · AM
Alleyton’s safety administrator calls the workers’ compensation carrier. The contemporaneous claims diary records that she asks the carrier to redirect Ball’s file to outside counsel.
Oct 14 · PM
Ball is fired. The company refuses to give him a reason. He records the meeting on his phone.
At the termination meeting — which the jury heard in Ball’s own recording — the HR director told him only that it was “in the company’s best interest.” The safety director told him they were “not allowed to talk about why.” He was promised documentation that would explain. None ever came.
I am still baffled today about the reason.
Joseph Ball, Trial Testimony
The Defense
What Alleyton said happened — and why it almost worked
Every retaliation case turns on the employer’s stated reason for the firing. A defense that sounds plausible to a jury can carry the day even when the truth is otherwise. To win, plaintiff’s counsel has to do two things: understand why the defense is initially credible, and then dismantle it with the employer’s own evidence.
Alleyton’s defense had real surface appeal. Concrete mixer driving is physically demanding work. Ball had been visibly slower since his injury. His supervisor had filmed him at the end of a fifteen-hour shift moving a heavy chute in a way that, on its face, could be characterized as a safety concern. The company had a documented safety program. Standing alone, “we let him go because his post-injury performance created safety risks” is the kind of explanation that gets employers across the finish line in a Section 451.001 case.
The reason it didn’t work here is that Alleyton could not actually deliver on the defense it was selling. The story collapsed under three kinds of pressure.
The Claim
“Ball was terminated for poor job performance.”
The Rebuttal
In the ten months between Ball’s return to full duty and his firing, Alleyton issued zero write-ups, performance improvement plans, or disciplinary actions. The company’s own supervisor admitted on cross-examination that internal rules required documentation of any performance concerns — and that no such documentation existed. An employer that had genuinely been concerned about job performance for ten months would have a paper trail. Alleyton had nothing.
The Claim
“This was about safety, not Ball’s workers’ comp claim.”
The Rebuttal
Alleyton’s witnesses could not agree among themselves on whether the firing was for “performance” or “safety” — and the HR director eventually testified that neither was the real reason. The Vice President of Ready-Mix said it was not a performance termination. The HR director said it was not a safety termination. When the people who fired Ball can’t agree on what they fired him for, the jury is entitled to conclude that the stated reason isn’t the real reason.
The Claim
“The workers’ compensation claim had nothing to do with the timing.”
The Rebuttal
The carrier’s claims diary — Alleyton’s own document, produced from its own files — recorded that on the morning of October 14, 2016, Alleyton’s safety administrator called the adjuster and asked that Ball’s workers’ compensation file be redirected to outside counsel. That afternoon, Ball was fired. An employer concerned about a worker’s performance does not call the comp carrier’s lawyer first. An employer concerned about a worker’s claim does exactly that.
How We Proved Retaliation
The mechanics of a circumstantial case
Workers’ compensation retaliation cases are almost never proved by direct evidence. Employers don’t put retaliatory motive in writing. The Texas Supreme Court in Continental Coffee Products Co. v. Cazarez recognized this reality and held that retaliatory motive can — and usually must — be proved through circumstantial evidence: a stack of facts that, together, allow a reasonable jury to infer what the employer was actually thinking.
The strategic insight is that each piece of circumstantial evidence is weak alone but powerful in combination. The defense will pick at any single fact (“the timing was a coincidence”; “the policy violation was an oversight”; “the witnesses simply remembered things differently”). What the defense cannot do is explain why all of those things happened in this case at this time. That is the work of the case-in-chief: stacking the facts until the only coherent explanation is the one the law forbids.
Mechanism 01
Timing as Evidence
The chronology was not background — it was a central exhibit. Ball worked ten unblemished months. He reported a new on-the-job injury on October 13. The next morning, Alleyton’s safety administrator called the comp carrier to redirect the file to outside counsel. That same afternoon, Ball was fired. Texas courts have long recognized that close temporal proximity between protected activity and termination is itself probative of retaliatory motive. We made the calendar do that work.
Mechanism 02
The Absence of a Paper Trail
In retaliation cases, what an employer didn’t document is often more powerful than what it did. Alleyton’s own policies required progressive discipline and contemporaneous documentation. For ten months, none of that happened with Ball — meaning the company had two choices on the witness stand: admit the policies were ignored, or admit there had been nothing to document. Either answer hurt the defense.
Mechanism 03
The Document the Defendant
Could Not Spin
The carrier’s claims diary was the evidentiary turning point of the case. It was contemporaneous, kept in the ordinary course of business by a third party, and it placed Alleyton’s safety administrator on the phone with the comp adjuster on the day of termination — asking to route Ball’s file to outside counsel. We obtained the diary in discovery, used it to lock down testimony, and put it in front of the jury. When the safety administrator’s recall failed on the witness stand at the precise moment the diary became inconvenient, the jury saw the gap.
Mechanism 04
Witnesses Against
Each Other
The most damaging testimony at trial came not from Ball’s witnesses, but from Alleyton’s. The Vice President of Ready-Mix said the firing was not for performance. The HR director said it was not for safety. The supervisor who filmed Ball said he had “absolutely no involvement” in the termination decision — directly contradicting the safety director, who testified that the supervisor had agreed Ball needed to be fired. We did not have to argue that Alleyton’s story was false. We let Alleyton’s witnesses tell the jury that themselves.
Mechanism 05
The Client’s Own Recording
Ball had recorded the termination meeting on his phone. Alleyton’s HR director described that meeting under oath as “combative.” The recording showed something completely different: a calm man asking, again and again, why he was being fired, and being told the company was “not allowed” to say. Letting the jury measure the corporate witness’s characterization against the client’s actual conduct — in real time — is among the most powerful tools available in employment trial work.
Mechanism 06
The Policy as the
Cross-Examination
Alleyton’s parent company had a written “Safety Related Discipline” policy. We did not need to argue from outside that the company should have done things differently. We made the company’s own safety administrator confirm, on the stand, that the rules required communication, progressive discipline, fair application, and documentation — and then walked her through each requirement Alleyton had violated in firing Ball. An employer’s own policies, used against it, carry weight no expert witness ever could.
The company’s policy versus what the company did
Alleyton’s safety administrator testified that the rules existed in part to confirm an employer was being honest about its reasons for termination, rather than concealing some other action like retaliation. That admission — from the company’s own witness — gave the jury the framework it needed to evaluate the gap between policy and practice.
What the Policy Required
CommunicationTell the employee why he is being terminated.
Progressive DisciplineStep up through warnings before termination.
Fair ApplicationDo not change reasons after the fact.
DocumentationDocument contemporaneously and provide it to the employee.
What Alleyton Actually Did
CommunicationRefused to give Ball any reason at all.
Progressive DisciplineZero warnings or discipline in the prior ten months.
Fair ApplicationWitnesses gave three different reasons.
DocumentationPaperwork completed three days late. Never given to Ball.
The point is not that Alleyton failed at HR best practices — companies can be sloppy without being retaliatory. The point is that the combination of the violated policies, the absent documentation, the contradictory witnesses, the suspicious timing, and the contemporaneous claims diary excluded innocent explanations. By the end of trial, no reasonable account of the firing remained except the one the statute prohibited.
The Verdict
A unanimous jury, in four days
After four days of trial, the jury returned a unanimous verdict for Joseph Ball and found, by clear and convincing evidence, that Alleyton acted with gross negligence — conscious indifference to Ball’s rights, safety, and welfare.
Future lost wages
$675,519
Past physical pain and mental anguish
$100,000
Future physical pain and mental anguish
$16,500
Exemplary (punitive) damages
$750,000
Affirmed on appeal — every dollar
Alleyton, represented by Skadden Arps, appealed to the Fourteenth Court of Appeals on six grounds. On June 3, 2021, the court of appeals unanimously affirmed the verdict in its entirety. The Texas Supreme Court later denied Alleyton’s petition for review. The case is final.
One of the strongest pro-employee workers’ compensation retaliation decisions in the dataset.
Verdict.com · Independent Case Analysis
The Pattern
What this case teaches about retaliation claims
Practitioner Insight
Workers’ compensation retaliation cases are won and lost on documentation, timing, and consistency — not on direct evidence of motive.
Ball v. Alleyton illustrates a recurring fact pattern in Section 451.001 cases. An injured worker is treated as a productive employee until the workers’ compensation claim becomes inconvenient — a new injury report, a benefit review conference, a request to involve counsel. The employer then terminates the worker, often within hours or days of the inconvenient development, and reaches for after-the-fact justifications that the company’s own records do not support.
Texas juries are highly sensitive to three signals that this pattern is in play: (1) a long stretch of unblemished performance immediately preceding termination, (2) close temporal proximity between a protected act and the firing, and (3) internal inconsistency in the employer’s stated reasons. When all three are present — as they were here — circumstantial evidence becomes overwhelming, even without a single document admitting retaliatory motive.
The lesson for injured workers: the absence of a clean explanation for your firing is itself evidence. The lesson for trial counsel: build the case around the gap between what the employer said and what the employer’s own records show. That gap, properly developed, is the case.
Verified Coverage & Citations
Speaking & Teaching on This Case
Recognized by the bar as a teaching case
Ball v. Alleyton has been the subject of continuing legal education presentations to the Texas employment bar — invited talks given by trial counsel after the verdict and appellate affirmance.
Sept 2021
Dallas Bar Association · Labor & Employment Section
“The Anatomy of a Worker’s Compensation Retaliation Trial”
Feb 2021
National Employment Lawyers Association · Houston Chapter (NELA Houston)
“Report from the Battlefield: Observations and Review from Ball v. Alleyton Resources Co.; Handling a Worker’s Compensation Retaliation Claim Through Trial”
Frequently Asked
What Texas workers want to know
Can I be fired for filing a workers’ compensation claim in Texas?
No. Section 451.001 of the Texas Labor Code prohibits employers from discharging or otherwise discriminating against employees because they filed a workers’ compensation claim, hired a lawyer to represent them in a claim, or instituted a workers’ compensation proceeding. Workers fired in violation of this statute may recover lost wages, mental anguish damages, and — in cases of gross negligence or malice — exemplary damages.
What evidence proves a workers’ compensation retaliation claim?
Direct evidence is rare. Most cases are proved through circumstantial evidence under the five-factor framework from Continental Coffee Products Co. v. Cazarez: knowledge of the compensation claim by decision-makers; a negative attitude toward the employee’s injured condition; failure to follow established company policies; discriminatory treatment compared to similarly situated employees; and evidence that the stated reason for discharge was false. Texas courts also commonly consider temporal proximity between the claim and the termination.
How much can I recover in a Texas workers’ comp retaliation case?
Recovery typically includes past lost wages, future lost wages, past and future mental anguish, and in appropriate cases exemplary (punitive) damages. In Ball v. Alleyton, the jury awarded $1,706,187 total, including $750,000 in exemplary damages. Every case is different and outcomes turn on the specific facts.
How long do I have to sue for workers’ comp retaliation in Texas?
Section 451.001 claims are generally subject to a two-year statute of limitations under Texas law. Because deadlines and tolling rules vary based on individual circumstances, anyone considering a claim should consult with an attorney promptly — waiting can cost you the case before it begins.
What if my employer says they fired me for performance reasons?
A pretextual reason for termination is itself evidence of retaliation. Where an employer’s stated reason is shifting, undocumented, inconsistent with the employee’s actual record, or applied differently than to other employees, a jury may infer that the real reason was the protected workers’ compensation activity. The conflicting and shifting explanations Alleyton offered in Ball v. Alleyton were a significant factor in the verdict.
JA
Reviewed By
◆ Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization · Texas Bar No. 24085185 · Invited speaker on this case before NELA Houston (2021) and the Dallas Bar Association Labor & Employment Section (2021)
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A workplace injury should not cost you your job.
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