The Pipefitter on the Ethylene Project
Our client was a pipefitter — a journeyman tradesman with years on the tools. In 2015 he hired on with Fluor Daniel Services Corporation, the construction services arm of one of the largest engineering firms in the world, to work the USGC Ethylene project for Chevron Phillips Chemical at Cedar Bayou. He understood the project was temporary. He understood there would be reductions in force as the build progressed and crews demobilized. He understood his coverage in the event of injury came through Chevron Phillips’ Owner-Controlled Insurance Program. None of that was a surprise.
What he did not anticipate was that on January 9, 2017, while walking to a routine safety meeting, he would step on uneven ground, twist his left knee, and fall against a pipe support. His foreman took him to the safety office. The Health, Safety and Environment supervisor took him to the doctor. He was evaluated, cleared, given ibuprofen, and sent back to work. Two days later, his knee still hurt. He went back to the doctor. More ibuprofen. Cleared again.
Then he was assigned to the safety office. Not to actually do anything — just to sit there all day, every day, until something else happened. The first-aid records of January 12 and 13 noted left knee pain, ice therapy, ibuprofen. The January 16 record noted he still had knee pain. That same day, the project’s HSE supervisor emailed the Employer’s First Report of Injury or Illness to Chevron Phillips and to a Fluor HSE supervisor. Three days later, the third-party insurance administrator opened the workers’ compensation claim and started asking Fluor questions about whether our client had returned to work.
The next day — January 20, 2017, hours after Fluor responded to the insurance administrator confirming the claim was active — our client’s name was placed on Fluor’s reduction-in-force list. Three days after that, on January 23, the supervisor who had taken him to the safety office told him he was being terminated as part of a reduction in force.
He hired a lawyer three days after that. We filed suit four months later.
Texas Workers’ Compensation Anti-Retaliation
A Texas employer may not discharge or otherwise discriminate against an employee because the employee has, in good faith, filed a workers’ compensation claim, hired a lawyer to represent them in a claim, instituted or caused to be instituted a proceeding under the workers’ compensation statute, or testified in any such proceeding. Where the employer asserts a lawful-looking justification — typically a reduction in force or routine business decision — the plaintiff must produce evidence from which a reasonable jury could conclude the stated reason is pretext.
Fourteen Days, Documented
Most workers’ compensation retaliation cases turn on temporal proximity, but the cases that survive summary judgment combine timing with chain-of-custody evidence. The defense theory in this case was that the layoff was an ordinary business decision unconnected to the injury. The record made that theory very hard to sustain.
“[The supervisor] testified that crew supervisors are trusted to decide which employee is subject to reduction based on company-established factors. Aycock testified that the supervisor ‘passes the name of the individual’ and Aycock reviews and approves the reduction without evaluating the supervisor’s decision.” — Salas v. Fluor Daniel, 616 S.W.3d at 141
Steelmanning Fluor’s Position — and Dismantling It on Appeal
Fluor, represented by experienced employment defense counsel, raised the four arguments any well-resourced corporate defendant raises in a § 451 case. Each had real merit on its face. Each failed on the appellate record.
“This was a routine reduction in force. The Cedar Bayou ethylene project was winding through phases of construction; demobilizations are scheduled and expected; our client knew this when he hired on. The fact that his name happened to appear on a RIF list at the same general time as a workers’ compensation claim was processed is not evidence of retaliation — it is the entirely predictable rhythm of large construction projects.”
The argument has surface plausibility and was the centerpiece of the trial-court ruling. It collapses on the procedural record. The reduction-in-force form had three signature rubrics for review — Human Resources, Superintendent/Designee, and Site Manager/Designee. Two of the three were blank. Only the supervisor with knowledge of the workers’ compensation claim and his immediate general superintendent signed.
The general superintendent admitted at deposition that crew supervisors “pass the name” of the individual to be reduced and that he approves the recommendation without independently evaluating the decision. That is not a routine reduction-in-force process. That is a single decisionmaker — the one person in the chain who knew about the claim — making the call alone, under a paper structure designed to look like layered review.
“There is no evidence the decisionmakers knew about the workers’ compensation claim. Knowledge is a required predicate to retaliation, and the plaintiff cannot prove it. The injury was a minor knee twist, evaluated and cleared by medical. There was no formal claim filed by the employee until after his termination. What the corporate defendants reported to an insurer is not the same as what individual managers in a construction trailer knew.”
This argument runs into its own paper trail. The HSE supervisor who emailed the Employer’s First Report of Injury was the same person who took our client to medical on the day of the accident. The supervisor who made the layoff recommendation was the same person who placed him in the safety office to sit unproductively and who completed the exit interview. The general superintendent who approved the layoff signed the RIF list on January 20 — within hours of the company’s own response confirming the workers’ compensation claim was active.
Texas courts have repeatedly held that direct evidence of subjective knowledge is not required where the procedural and documentary record makes inference of knowledge a reasonable conclusion. A jury could find knowledge here. That is enough to defeat summary judgment.
“Even if everything else were assumed in the plaintiff’s favor, he was not physically able to perform the essential functions of his job at the time of his termination. He had been in the safety office for days. He was not productive. An employer is entitled to terminate an employee who cannot do the work, and that termination is independently lawful regardless of the workers’ compensation claim.”
This argument confuses two different things. The treating physician twice cleared our client to return to work — once on the day of the injury, once two days later. The medical record at no point contained a no-work or restricted-duty determination. The reason he was sitting in the safety office was that Fluor put him there — not because he was medically prohibited from working.
An employer cannot manufacture an “unable to perform” defense by warehousing an injured employee in an unproductive holding pattern and then citing the unproductivity as cause. The Court of Appeals, applying the summary-judgment standard, held a reasonable jury could view the safety-office assignment as part of the same retaliatory pattern, not as an independent ground for termination.
“The temporal proximity between the workers’ compensation paperwork and the termination, standing alone, is not enough to defeat summary judgment. Texas appellate decisions consistently hold that timing alone is insufficient. Without more, this case is a textbook example of the kind of speculation that summary judgment is designed to weed out.”
Correct on the doctrine; wrong on the application. Temporal proximity alone is not enough. Temporal proximity plus chain-of-custody evidence — the supervisor with claim knowledge being the sole substantive decisionmaker, blank signature lines on the RIF list where independent review was supposed to occur, an exit interview signed only by HR with the project manager line marked “N/A,” paperwork filed and acted upon within hours rather than the days a routine review would take — is more than enough.
The Court of Appeals catalogued each of these as evidence raising a fact question. Fluor’s framing of the case as “timing alone” was the trial-court framing. The appellate framing was timing as one piece of a converging documentary record.
Six Mechanisms That Defeated Summary Judgment
Defeating no-evidence summary judgment in a § 451 case requires producing evidence on each challenged element from which a reasonable jury could differ. The defense was that there was no evidence at all. The appellate record showed otherwise — six independent ways.
The Same-Day Layoff List
The reduction-in-force form was timestamped 2:30 p.m. on January 20, 2017 — the same day Fluor confirmed to the third-party insurance administrator that the workers’ compensation claim was active. Not the same week. The same afternoon. That kind of timing demands an explanation; the record provided none.
The Blank Signature Rubrics
The RIF list contained three review rubrics: Human Resources, Superintendent, and Site Manager. The HR rubric was blank. The Site Manager rubric was blank. Only the immediate supervisor with claim knowledge and his general superintendent signed. The form was designed to look like layered review; on this layoff, layered review did not happen.
The Superintendent’s Admission
At deposition, Fluor’s general superintendent admitted that crew supervisors “pass the name” of the employee to be reduced and that he approves without evaluating the supervisor’s decision. That testimony — taken from the defense’s own witness — meant the supervisor with workers’ comp claim knowledge was, in operational reality, the sole substantive decisionmaker.
The “N/A” on the Separation Form
The Employee Separation Form required a project manager’s signature for approval. On this separation, the project manager line read “N/A.” The only signatures on the form were our client’s and the HR specialist’s. Standard process called for sign-off the form did not receive — small evidence on its own, but consistent with every other layer of review that didn’t happen.
The Safety-Office Warehousing
Between the injury and the termination, our client was assigned to the safety office to “sit there all day.” He performed no work — not because medical restrictions required it, but because Fluor placed him there. That decision turned a productive employee into an unproductive one and then served as the predicate for the “unable to perform essential functions” defense. A jury could see that pattern as engineered, not coincidental.
The Continuity of Decisionmakers
The same supervisor who took our client to medical on the day of the injury, who watched him sit in the safety office, who recommended him for the RIF list, was the supervisor who told him on January 23 that he was terminated. One person, present at every step, with full knowledge of the workers’ comp claim. That continuity is the chain of custody summary judgment cannot defeat.
What Fluor’s RIF Procedure Required, and What Happened
Large construction contractors maintain layered reduction-in-force procedures precisely so that no single decisionmaker can cause a discriminatory termination. The procedure on paper exists to protect the employer from liability. When the procedure on paper is not followed, that gap is itself evidence.
Three layers of independent review.
The reduction-in-force form contained signature rubrics for Human Resources, Superintendent or Designee, and Site Manager or Designee — three independent reviewers, each presumably charged with evaluating whether the proposed termination complied with company policy and applicable law before it was executed.
The Employee Separation Form required a Project Manager signature for approval before any termination became final.
One supervisor with knowledge. One rubber stamp.
Human Resources rubric: blank. Site Manager rubric: blank. Project Manager line on separation form: “N/A.” Only the immediate supervisor — the person who knew about the workers’ compensation claim — and his general superintendent signed. The general superintendent admitted at deposition that he did not evaluate the supervisor’s recommendation.
The procedure that was supposed to protect against single-decisionmaker discrimination was, in this case, a single decisionmaker with a paper structure draped over the top.
“Salas understood the temporary nature of the project and that Fluor had a reduction of force policy as the project progressed. […] Later that day, Fluor placed Salas on its reduction of force list.” — Salas v. Fluor Daniel, 616 S.W.3d at 141
Trial Court to Texas Supreme Court
Texas employment cases that reach the Court of Appeals on summary judgment rarely produce reversals. The procedural arc of this case — trial court win for the defendant, appellate reversal, denial of further review by the Texas Supreme Court — is the proof that the appellate work moved the needle. The published opinion stands.
What This Case Teaches Practitioners
Texas § 451 cases are not won by disproving the employer’s stated reason. They are won by exposing the chain of custody on the firing decision.
Every well-resourced Texas employer defending a workers’ compensation retaliation case will offer a facially lawful explanation: a reduction in force, a project-end demobilization, a performance issue, an inability to perform essential functions. Plaintiffs who try to win by attacking the stated reason head-on — proving the project wasn’t actually winding down, proving the employee was actually performing — typically lose. The reasons are usually plausible enough on their face to survive direct attack.
The case is won by reframing the question. Not “was the stated reason real?” but “who actually made the decision, and what did that person know?” In Salas, the answer was that a single supervisor with full knowledge of the workers’ compensation claim recommended the termination, and every layer of review above him was either blank, marked “N/A,” or — by the general superintendent’s own admission — a rubber stamp without independent evaluation. The procedure on paper looked like layered review. The procedure in practice was one person with one motive making the call.
That reframing requires three pieces of evidence at the summary-judgment stage: temporal proximity tight enough that coincidence becomes implausible (a same-day timestamp helps); a documentary record showing the procedural protections that were supposed to apply did not apply on this termination (blank signature lines, missing approvals, departures from normal practice); and deposition testimony from the people above the recommending supervisor admitting they did not independently evaluate. When all three converge, summary judgment is not appropriate as a matter of Texas law. The published Salas opinion now stands as authority for that proposition.
