R Construction Company v. Lavorgus Canady

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-25-00053-CV R CONSTRUCTION COMPANY, Appellant v. Lavorgus CANADY, Appellee From the 218th Judicial District Court, Wilson County, Texas Trial Court No. CVW2100490 Honorable Jennifer Dillingham, Judge Presiding Opinion by: Irene Rios, Justice Sitting: Irene Rios, Justice Lori Massey Brissette, Justice Adrian A. Spears II, Justice Delivered and Filed: May 27, 2026 AFFIRMED IN PART; REVERSED AND RENDERED IN PART A jury found appellant R Construction terminated appellee Lavorgus Canady’s employment in retaliation for Canady’s opposition to racial discrimination under the Texas Commission on Human Rights Act (“TCHRA”). In its first nine issues, which we construe as a single issue, R Construction contends the evidence is legally insufficient to support the jury’s retaliation finding. In its tenth and eleventh issues, R Construction argues Canady is not permitted to recover back pay under the TCHRA unless it is accompanied with other equitable relief. In its  04-25-00053-CV twelfth issue, R Construction argues the evidence is legally and factually insufficient to support the award of back pay. In its thirteenth through fifteenth issues, R Construction argues the evidence is legally and factually insufficient to support past and future compensatory damages. In its sixteenth issue, R Construction argues the evidence is legally and factually insufficient to support the award for punitive damages. In its seventeenth issue, R Construction challenges the award of attorney’s fees. We hold the evidence is legally sufficient to support the jury’s finding that Canady was terminated in retaliation for opposing a discriminatory practice and Canady was entitled to recover back pay. We hold the evidence was legally and factually sufficient to support the awards for back pay, past compensatory damages, and punitive damages. However, we hold the evidence is legally insufficient to support the award for future compensatory damages. Accordingly, we reverse the portion of the trial court’s final judgment awarding future compensatory damages. In all other respects, we affirm the trial court’s judgment. BACKGROUND R Construction is a company that services oil rigs. Canady began working for R Construction in November 2018 as a roustabout, which is a general laborer that may be asked to perform a wide range of duties as assigned to service customer’s oil rigs. Eventually Canady was promoted as a leader of a crew of roustabouts. EOG Resources, Inc. (“EOG”) was one of R Construction’s customers. The testimony indicates that EOG was a big customer and R Construction did a lot of work for it. In March 2019, Canady and his crew were assigned to service an EOG oil rig. Canady and the members of his crew were all African American and they were all riding in the truck Canady was driving to the jobsite. When Canady and the crew arrived at the EOG oil rig, Canady rolled down his truck -2-  04-25-00053-CV window to speak with EOG’s mud engineer on the rig. During that conversation EOG’s mud engineer told him: “I guess your boss didn’t tell you guys I thought that you guys wouldn’t make it past the KKK.” Canady replied, “Excuse me?” EOG’s mud engineer then repeated his comment. Canady then rolled up his window and called his supervisor, Dustin Meyer. When Meyer did not answer, Canady told a member of his crew: “Bro, I can’t take it. I’m not going to do it. I refuse to.” Canady began driving the crew back to R Construction’s yard and called “the next higher up” person at the company, Nathan. According to Canady, when he told Nathan what occurred, Nathan chuckled and said: “I can’t believe the guy said that, but I’ll look into it.” When Canady arrived at R Construction’s shop, Meyer invited him into the office to talk. Canady testified Meyer told him to stand down and teach Josh Manley, a white employee, Canady’s job so that he could pose as the supervisor for the EOG mud engineer because R Construction needed to finish the job. 1 Manley had only been on the job for approximately a month and didn’t have the specialized experience and skills for the job that Canady possessed; nevertheless, Manley was instructed to see if the EOG mud engineer had a problem with R Construction in general or if he had a concern with an African American crew. According to Canady, Manley reported to Meyer that the EOG mud engineer was “kind of fishy” and Canady was instructed by Meyer to leave the job site. Canady testified he went home and cried. The next day, Meyer told Canady that he would take care of the issue regarding the EOG mud engineer’s remarks made the previous day. Two weeks later, Canady was dispatched to a different job site where the same EOG mud engineer was working. When Canady discovered the mud engineer who made the KKK remarks was at the site, he left the job and returned to R 1 Canady testified: “[Meyer] told me to take Josh Manley back with me, to stand down and to show Josh my job, that we needed to finish the job and we wanted to figure out [if the EOG mud engineer was] really being a butt or not.” -3-  04-25-00053-CV Construction’s yard. EOG reported that Canady’s crew left the site. When the crew returned to the yard, Nathan pulled Canady aside and asked Canady what he expected Nathan to do. Canady replied: “Do something. . . . [P]ush it to the top.” Nathan told Canady if he pushes Canady’s complaint any further, then R Construction will be losing business with EOG. Canady told Nathan he did not care and did not want to work with the EOG mud engineer. Nathan said he would see what he could do. In the months after Canady reported the EOG mud engineer’s KKK remarks, he was subjected to drug testing and was subjected to disciplinary actions for alleged work violations. Prior to Canady reporting the KKK remarks, he had never received a reprimand for work violations. Meyer fired Canady after the third reprimand. Canady sued R Construction alleging Meyer issued the reprimands as a pretext to fire him in retaliation for opposing the EOG mud engineer’s comments, which he believed to be discriminatory and racially harassing. At trial, R Construction argued Canady was fired because he violated company policy three different times and caused R Construction to lose a client. Canady, of course, argued he was the victim of retaliatory discharge. A jury found in favor of Canady and awarded him $415,000 in back pay, $100,000 in compensatory damages, $50,000 in future compensatory damages, and $750,000 in punitive damages. The trial court remitted the punitive damages to $50,000 in accordance with the statutory cap, awarded attorney’s fees in the amount of $55,297.50, and adopted the remaining damages awarded by the jury in its final judgment. R Construction filed a motion for judgment notwithstanding the verdict arguing there is insufficient evidence to support the jury’s findings. The motion was overruled by operation of law. R Construction appeals. -4-  04-25-00053-CV SUFFICIENCY OF THE EVIDENCE TO SUPPORT RETALIATION CLAIM Canady brought a retaliation claim under section 21.055 of the Texas Commission on Human Rights Act (“TCHRA”). See TEX. LABOR CODE ANN. § 21.055. Under that provision of the TCHRA, an employer commits an unlawful employment practice if the employer retaliates or discriminates against a person who opposes a discriminatory practice. See id. Canady asserted at trial that he was terminated by R Construction because he reported racially discriminatory remarks made by EOG’s mud engineer. To the question of whether R Construction discharged Canady because of his opposition to a discriminatory practice, the jury answered: “Yes.” R Construction presents nine different arguments across its first nine issues supporting its contention that it did not engage in discriminatory practices and did not terminate Canady in retaliation for reporting or opposing the KKK comments made by the EOG mud engineer. Several of R Construction’s issues focus on elements of the McDonnell Douglas burden-shifting framework to show a prima facie case of retaliation under the TCHRA. 2 However, that analysis is only appropriate when the case has not yet been fully tried on the merits. See Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex. 2003) (“In discrimination cases that have not been fully tried on the merits, we apply the burden-shifting analysis established by the United States Supreme Court.” (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–03 (1973))). “But when a discrimination case has been fully tried on its merits, as in this case, a reviewing court does not engage in a burden-shifting analysis.” Canchola, 121 S.W.3d at 739. “Instead, we inquire 2 R Construction also argues the one “offhand” comment by the EOG mud engineer is not protected activity under the TCHRA. But the protected activity was not being subjected to the KKK comment. The protected activity was Canady’s opposition to the comment. See San Antonio Water Sys. v. Nicholas, 461 S.W.3d 131, 137 (Tex. 2015) (“Opposition to a discriminatory practice is a protected activity irrespective of the merits of the underlying discrimination claim.”). “However, to establish an employee opposed a discriminatory practice, the employee must demonstrate a good-faith, reasonable belief that the underlying discriminatory practice violated the TCHRA.” Id. Here, the record clearly shows that Canady was upset by the KKK comments, he immediately reported it to R Construction’s management, and Canady repeatedly pressed the issue when he did not see R Construction address it. Clearly, Canady had a good-faith, reasonable belief that the KKK comment violated the TCHRA. -5-  04-25-00053-CV whether the evidence is legally sufficient to support the jury’s ultimate finding.” Id.; see also Pineda v. United Parcel Servs., Inc., 360 F.3d 483, 487 (5th Cir. 2004) (internal quotation marks omitted) (“When there has been a trial on the merits, the evaluation process is streamlined and we proceed directly to the ultimate question of whether the plaintiff presented enough evidence for a jury to find that discrimination occurred.”). 3 Accordingly, we construe R Construction’s first nine issues as a challenge to the legal sufficiency of the evidence to support the jury’s verdict that R Construction terminated Canady in retaliation for reporting racially discriminatory conduct. 4 When an appellant challenges the legal sufficiency of the evidence on an adverse finding for which the appellant did not have the burden of proof, the appellant must show no evidence exists to support the adverse findings. Eagle Rock Timber, Inc. v. Rock Hard Rental, LLC, 672 S.W.3d 438, 448 (Tex. App.—San Antonio 2023, pet. denied). “We will sustain a legal sufficiency or ‘no-evidence’ challenge if the record shows one of the following: (1) a complete absence of evidence of a vital fact, (2) rules of law or evidence bar the court from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a scintilla, or (4) the evidence establishes conclusively the opposite of a vital fact.” Baker Hughes Oilfield Operations, Inc. v. Williams, 360 S.W.3d 15, 21 (Tex. App.—Houston [1st Dist.] 2011, pet. denied) (citing City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005)). We view the evidence in the light most favorable to the finding, indulging every reasonable inference that would support it while disregarding all contrary evidence that a reasonable factfinder could have disbelieved. Eagle Rock Timber, 672 S.W.3d at 448; see also City of Keller, 3 One of TCHRA’s purposes is to provide for the execution of the policies of Title VII of the Civil Rights Act of 1964. See TEX. LABOR CODE ANN. § 21.001(1); Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 476 (Tex. 2001). “Therefore, analogous federal statutes and the cases interpreting them guide our reading of the TCHRA.” Toennies, 47 S.W.3d at 476. 4 R Construction contends the evidence is insufficient as a matter of law. We construe this as a legal sufficiency challenge. Because R Construction does not assert a factual sufficiency challenge in its brief, we do not review the factual sufficiency of the evidence here. -6-  04-25-00053-CV 168 S.W.3d at 822. “If there is more than a scintilla of evidence to support a finding, it must be upheld.” Eagle Rock Timber, 672 S.W.3d at 448. However, “a jury ‘may not, from meager circumstantial evidence, reasonably infer an ultimate fact, none more probable than another.’” SCI Funeral Servs., LLC v. Moss, No. 02-24-00182-CV, 2025 WL 876782, at *4 (Tex. App.—Fort Worth Mar. 20, 2025, pet. denied) (quoting Williams, 360 S.W.3d at 21). “When the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence.” Williams, 360 S.W.3d at 21 (alteration omitted). A remedy for retaliation under TCHRA “only exists when the evidence establishes that a materially adverse employment action resulted from the employee’s protected activity.” Boxer Prop. Mgmt. Corp. v. Dehnel, No. 02-22-00336-CV, 2024 WL 3282541, at *22 (Tex. App.—Fort Worth July 3, 2024, pet. denied). “An employee claiming retaliation must prove that but for [his] protected conduct, [his] employer’s prohibited conduct would not have occurred when it did.” See id. (citing Apache Corp. v. Davis, 627 S.W.3d 324, 325 (Tex. 2021)). At trial, it was Canady’s burden to prove that he was terminated in retaliation for opposing racially discriminatory conduct at the EOG jobsite. Thus, the question here is whether the evidence is legally sufficient to support the jury’s finding that but for Canady’s opposition to and reporting of racially discriminatory conduct, R Construction would not have terminated Canady when it did. See Davis, 627 S.W.3d at 335, 337 (Tex. 2021); see also Pineda, 360 F.3d at 487 (“We have consistently held that in retaliation cases where the defendant has proffered a nondiscriminatory purpose for the adverse employment action[,] the plaintiff has the burden of proving that ‘but for’ the discriminatory purpose he would not have been terminated.”). “The but-for causation standard prevents ‘an employee who knows that []he is about to be fired for poor performance’ from -7-  04-25-00053-CV profiting off of ‘an unfounded charge of discrimination’ made to protect [him]self from an unrelated employment action.’” Davis, 627 S.W.3d at 335–36 (alterations omitted) (quoting Univ. of Tex. SW. Medical Ctr. v. Nassar, 570 U.S. 338, 358 (2013)). Although not meant to supplant the “but-for” standard, the supreme court has identified factors a reviewing court may consider when determining whether the circumstantial evidence supports a jury’s verdict that but-for engaging in the protected activity, the plaintiff would not have been terminated. Davis, 627 S.W.3d at 336. Those factors, as modified for this case, include: (1) the temporal proximity between the protected activity and the adverse action; (2) knowledge of the protected activity by those making the decision on termination; (3) expression of a negative attitude toward the employee’s engagement in the protected activity; (4) the employer’s failure to adhere to established company policies; (5) discriminatory treatment in comparison to similarly situated employees; and (6) evidence that the stated reason for the discharge was false. Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 790 (Tex. 2018); Davis, 627 S.W.3d at 326 n.3; Dehnel, 2024 WL 3282541, at *23. “An adverse employment action based solely on reasons unrelated to the protected conduct destroys the causal link.” Dehnel, 2024 WL 3282541, at *22 (citing Davis, 627 S.W.3d at 325). And when a defendant employer proffers a permissible explanation for the termination, the plaintiff must offer some evidence that permits the jury to infer that the defendant’s proffered explanation for the plaintiff’s termination was a pretext for retaliation. Pineda, 360 F.3d at 487. The jury “may not simply choose to disbelieve the employer’s explanation in the absence of any evidence showing why it should do so.” Id.; see also Davis, 627 S.W.3d at 335 (“In analyzing what the causal connection between protected activity and an unlawful response must be to establish liability under the [TCHRA], we [previously] reasoned that ‘[a]n employer who has -8-  04-25-00053-CV sufficient sound reasons for discharging an employee should not incur liability merely for disliking the employee for reporting illegal conduct when that dislike played no part in the disputed personnel actions.’” (quoting Tex. Dep’t of Human Servs. v. Hinds, 904 S.W.2d 629. 635 (Tex. 1995))). While this “but-for” causation standard “best protects employees from unlawful retaliation without punishing employers for legitimately sanctioning misconduct or harboring bad motive never acted upon,” an employee is not required to prove that his protected activity “was the sole reason for his employer’s adverse actions.” Davis, 627 S.W.3d at 335 (acknowledging the but-for standard first presented in Hinds did not require an employee to prove that reporting an illegal activity under the Whistleblower Act was the sole reason for termination, and recognizing the same standard applies in cases alleging retaliation for opposing discriminatory practices under section 21.055 of the TCHRA). “Further, an employer is not forbidden from addressing performance issues involving employees who have engaged in protected activity, including following through on known preexisting issues and addressing existing issues that come to light only during subsequent investigation.” Dehnel, 2024 WL 3282541, at *23 (citing Clark, 544 S.W.3d at 791–92). The issue instead “is whether the employer’s perception of the problems—accurate or not—was the real reason for termination.” Clark, 544 S.W.3d at 792. “And context is critical in a legal- sufficiency review because ‘the lack of supporting evidence may not appear until all the evidence is reviewed in context.’” Dehnel, 2024 WL 3282541, at *23 (quoting Clark, 544 S.W.3d at 793). Here, Canady reported the EOG mud engineer’s KKK remarks immediately, and he drove off the EOG jobsite returning to R Construction’s yard. Canady discussed the issue with Meyer in his office with a few other members of R Construction’s management team. 5 It is undisputed 5 Although Canady did speak with Meyer when he returned to R Construction’s yard, it is unclear whether the conversation involving other members of management occurred that day or the next day. -9-  04-25-00053-CV that Meyer sent Canady and his crew back to the EOG jobsite. However, this time, Canady testified he was ordered to “stand down” as the crew leader and let a less-experienced, new, white employee, Josh Manley, pose as the crew leader even though Manley had never been a crew leader before. Once Canady showed Manley what needed to be done, he left the EOG jobsite again. Canady testified Manley, who was previously a subordinate to Canady, was subsequently promoted to a position superior to Canady and was given a raise. 6 According to Canady, Manley was given his position as crew leader after Canady was fired. Canady’s testimony regarding Manley was corroborated by Jeramee Strain, who was another member of Canady’s crew. Meyer acknowledged that R Construction’s company policy was to investigate claims of discrimination or racial harassment and that the policy applied even if the discrimination or harassment came from vendors, customers, or clients. Meyer conceded he had an obligation to investigate the issue and to report it to the company’s human resources department. When asked whether he reported the KKK remarks made by EOG’s mud engineer to human resources, Meyer stated he could not recall. Meyer stated the claim was discussed with Canady and other members of management. According to Meyer, a member of the sales team was supposed to investigate the claim of racial harassment but Meyer was unaware that any formal investigation took place. Meyer also stated he was unaware of any report or documentation of the alleged investigation. Meyer conceded he never spoke with EOG or the mud engineer about the allegations of discrimination and racial harassment. Meyer acknowledged he had a duty to report the allegation to his superiors but stated Canady did not want to push the issue because he was worried R Construction would lose business and Canady was concerned about losing hours to work. Canady vehemently disputed Meyer’s statement that Canady did not want to push the issue. Although Meyer testified he 6 The evidence is disputed on whether Manley was given a temporary, supervisory job to help Meyer out for a month or whether it was a permanent promotion that was later taken away by the owner of the company. - 10 -  04-25-00053-CV interviewed members of Canady’s crew to determine what happened, Brandon Moore, another member of Canady’s crew, disputed this testimony stating he was never interviewed or questioned by Meyer or anyone else at R Construction regarding the incident. The jury heard testimony that Canady complained to several different members of management that he felt like he was being singled-out and discriminated against after he complained about the KKK comment. Canady pointed to Meyer’s order for him to stand down to Manley while he posed as the crew leader. Canady also pointed to Manley’s promotion, albeit temporary, and testified that he told management that he thought he was being subjected to excessive drug testing and was targeted with disciplinary reprimands after he complained about the mud engineer’s KKK remarks. Finally, Canady testified that his hours working as a crew leader were significantly reduced after his complaint. Moore corroborated Canady’s testimony stating he noticed Canady’s hours were reduced after he reported the EOG mud engineer’s KKK comments. The jury was presented with evidence showing Canady’s hours fluctuated based on the jobs R Construction received from its customers and these fluctuations were reflected in Canady’s timesheet before and after Canady complained about the KKK remarks. 7 R Construction presented evidence showing Canady’s hours were not drastically reduced after the complaint. However, Canady testified he had to seek work from another manager within the company doing different work to maintain his hours because Meyer reduced Canady’s workload as a roustabout after he opposed the EOG mud engineer’s 7 Canady’s timesheet showing his weekly hours during the entire duration of his employment with R Construction was admitted into evidence. Canady’s hours from mid-March 2018 through July 2018 shows Canady averaged approximately 66.92 hours per week. Canady’s hours from mid-March 2019 through July 2019 shows Canady averaged approximately 62.26 hours per week. However, Canady pointed out for the jury that his hours from June 2018 through December 2018 averaged approximately 76.58 hours per week. The jury also heard testimony that Canady had to work in a non-supervisory role in a different division of the company to maintain his hours after he complained about the KKK comment. - 11 -  04-25-00053-CV conduct. Canady also stated he was unable to maintain his supervisory role while working for the other manager. At trial, Meyer contended Canady was not fired for his opposition to discrimination; rather, Meyer stated Canady was fired pursuant to R Construction’s progressive disciplinary policy. R Construction presented evidence showing Canady received three different disciplinary reprimands that it claims were the bases to terminate his employment. R Construction’s handbook, which was admitted into evidence, provides that upon the first instance of misconduct, an employee will receive an oral warning. Although the warning is called an oral warning, the handbook states that the employee’s supervisor will discuss the misconduct with the employee and a written “notation regarding the discussion will be made in [the employee’s] personnel record for the sole purpose of documenting the oral warning.” At trial, this was referred to as an oral reprimand or oral warning. Then, the handbook provides that “[u]pon the occurrence of a second infraction,” the employer’s supervisor and an officer of R Construction will discuss the misconduct with the employee and “[a] written [m]emo will be placed in [the employee’s] personnel file in order to keep record of the infraction.” At trial, this was referred to as a written reprimand or a “write-up.” Although not in the handbook, Meyer testified the third step in the progressive disciplinary policy was suspension. Finally, the handbook provides that “[e]mployees who either fail to improve their performance and/or behavior following repeated warning or commit a very serious infraction will be subject to immediate termination.” Notwithstanding the progressive disciplinary policy, the handbook warns that “some acts of misconduct are so severe as to be grounds for immediate termination at” R Construction’s sole discretion and the progressive disciplinary policy does not modify the at-will employment relationship between R Construction and its employees. An oral warning is the lowest level of discipline and termination is the highest level of discipline. - 12 -  04-25-00053-CV R Construction used a form when issuing reprimands. On the form, the supervisor issuing the reprimand can check boxes indicating the reprimand is an oral warning, a written warning, suspension, or termination. The form also has a place for the supervisor to write in the infraction for which the reprimand was being issued. (A) The Safety Meeting The first reprimand R Construction argues justifies Canady’s discharge was issued because Canady missed a safety meeting on June 18, 2019. Canady admitted he missed the safety meeting but testified the meeting occurred on his day off. According to Canady, R Construction had an unwritten policy that employees were not required to attend safety meetings if they were just coming off a long shift or it was their day off. Canady testified R Construction would have multiple safety meetings in the month that covered the same information so everyone could attend the safety meeting during their shift. According to Canady, each employee was only required to attend one safety meeting per month. Canady testified that he and his crew came off a fourteen- hour shift at 5:00 AM the day of the meeting, which was scheduled for 7:00 AM. According to Canady, he was off the day of the meeting and returned the next day to a nine-hour shift. Timesheets were admitted into evidence corroborating Canady’s testimony. Meyer testified the safety meeting was a “stand-down safety meeting” that everyone was required to attend even on their day off. However, his testimony was inconsistent. For example, he could not say whether he had conveyed to Canady’s crew that the meeting was a mandatory “stand-down safety meeting” that should be treated differently than any other safety meeting. Meyer first stated everyone was supposed to attend safety meetings on their days off but then changed his testimony later stating it depends on what time the employee got off their shift. Meyer maintained that Canady was not off on the day of the safety meeting but then couldn’t explain why - 13 -  04-25-00053-CV Canady did not have any hours on his paystub showing he worked the day of the meeting or why Canady’s write up did not state that he failed to show up to work. Although this was Canady’s first infraction with the company, Meyer testified he skipped the oral warning in the progressive disciplinary policy and checked the box stating this was a written reprimand. The reprimand also stated that Canady refused to sign it because Meyer had left it on the bulletin board inside his office before he left town and, when he returned, it was still not signed. Canady disputed Meyer’s testimony that Canady received a written reprimand and stated the reprimand was an oral write-up when it was posted on the bulletin, indicating Meyer may have changed it to a written reprimand sometime later. Canady admitted he refused to sign the reprimand because the safety meeting occurred on his day off and he was not required to attend. Canady asked Meyer why he was written up for missing a safety meeting on his day off. According to Canady, Meyer told him not to worry about the write-up because Meyer realized Canady had just gotten off a long shift before the meeting. (B) The Verbal Altercation The second reprimand was issued because Canady and another coworker, CJ, got into an argument at a customer’s well site on July 21, 2019. The jury heard testimony that CJ was distracted by his phone while he was running an industrial forklift. Canady told CJ to get off his phone while he was operating the forklift, which caused tension between Canady and CJ. At some point, CJ ran the forklift into one of the work trucks and busted out the windshield with the pipe that he was carrying on the forklift. Canady and CJ got into a verbal altercation, and Canady immediately contacted Meyer to report the incident. Meyer told Canady and CJ that they needed to cool down and get it together. He also told Canady to move the work truck so the customer would not see the damage or that an accident had occurred. At some point, Canady reported that - 14 -  04-25-00053-CV he and CJ worked out their issues, everything was okay between them, and they had finished the job. Meyer testified he was not going to write up Canady and CJ so long as the customer did not complain. Several days later, Meyer called Canady and CJ into his office to issue them a reprimand because he alleged the customer complained about their altercation. (C) The RamTex Job R Construction has several yards in Texas from where it operates, and each yard is in a different geographical region. R Construction was hired by a company called RamTex to wash an oil rig in La Grange, Texas. Although La Grange was in the geographical region of R Construction’s Buffalo, Texas yard, Canady’s crew was sent from the Floresville yard to relieve a Buffalo crew that was washing an oil rig in La Grange on July 24, 2019. The third reprimand arose from this job. R Construction was working around the clock to wash this oil rig. The Buffalo crew worked the twelve-hour shift before Canady’s crew arrived and took over again after Canady’s crew completed their twelve-hour shift. The jury heard evidence that this oil rig washing job was very difficult work. The crew was working in temperatures that exceeded 100 degrees and were using power washers that spray hot water to wash oil-based mud off the rig. Meyer testified RamTex later fired R Construction because Canady’s crew was lazy and took too many breaks. However, Meyer acknowledged that OSHA regulations required Canady’s crew to take a break every hour of the twelve-hour shift in those conditions. Meyer also conceded he did not know how many breaks Canady’s crew took during their shift or for how long the breaks lasted. There was a picture admitted into evidence showing R Construction employees taking a break. On cross-examination, Canady’s counsel questioned Meyer about his deposition testimony - 15 -  04-25-00053-CV identifying Canady as one of the employees pictured taking a break. At trial, however, Meyer testified he could not identify the men in the picture. Both men in the picture also wore white hard hats and the jury heard testimony that only Canady wore a white hard hat in his crew, indicating the picture may have been of a different crew. Meyer also contradicted himself at one point when he stated the Buffalo crew had to complete the job, indicating R Construction was not fired from the RamTex job. Meyer’s testimony regarding Canady’s crew’s work ethic was also directly contradicted by Canady and Strain. Strain testified RamTex was upset when Canady’s crew arrived at the jobsite because the Buffalo crew was not making any progress. Canady stated no one from RamTex complained about the work Canady’s crew was doing and they were paid compliments on their work ethic when they first started their shift. Strain corroborated Canady’s account stating Canady’s crew made progress on the oil rig pressure washing job and RamTex employees began giving compliments to Canady’s crew. Strain testified Canady’s crew worked a twelve-hour shift in personal protective equipment and had to take breaks to cool off but he disputed Meyer’s testimony that they were fired for taking too many breaks. Rather, Strain testified RamTex was pleased with the work done by Canady’s crew when they left the jobsite. Meyer told Canady to keep an eye on his phone because they may be sent back to La Grange to finish the job for the Buffalo crew. Canady was subsequently told that RamTex fired R Construction from the job and his crew would not be returning to relieve the Buffalo crew. However, Canady received this news after the Buffalo crew relieved Canady’s crew indicating it was the Buffalo crew’s work and not Canady’s crew that RamTex was displeased with. - 16 -  04-25-00053-CV (D) The Day Canady’s Employment was Terminated On July 26, 2019, Meyer called Canady and CJ into his office to tell them he was issuing a written reprimand for being unprofessional on the jobsite where the forklift incident occurred. Canady said he would sign the reprimand but asked whether CJ would be further disciplined for insubordination and running the forklift into the truck. Meyer then asked CJ to leave and told Canady he was being fired for accumulating too many reprimands, referring to the safety meeting, the verbal altercation, and the RamTex job. That day Meyer issued a written reprimand for the verbal altercation that had occurred five days earlier and a second reprimand stating Canady was fired for “Insubordination—causing company to be terminated from that job[,]” referring to the RamTex job. Application Our review requires us to determine whether there was sufficient evidence for the jury to conclude that but for Canady’s opposition to discriminatory conduct, R Construction would not have fired him when it did. Because Canady relied on circumstantial evidence to prove his case, we review these reprimands and the circumstances surrounding Canady’s discharge by considering the factors mentioned above to determine whether there was sufficient evidence for the jury to conclude those reprimands were issued merely as a pretext to fire Canady in retaliation for his opposition to discrimination. (1) Temporal Proximity Regarding temporal proximity between Canady’s complaint of the EOG mud engineer’s KKK comments and Canady’s discharge, the evidence shows that Canady never received a reprimand before his complaint of racial harassment. It was not until after he opposed what he perceived to be discriminatory conduct that Canady received the three reprimands R Construction - 17 -  04-25-00053-CV contends led to Canady’s termination. Although Canady was not fired until approximately four months after Canady’s first complaint, the jury heard testimony that Canady continued to press the issue with R Construction during that time period. Canady testified every time he complained about R Construction’s inaction to address the EOG mud engineer’s KKK remarks, his hours were reduced or he endured some form of negative reaction from R Construction. The jury also heard testimony that Canady was excessively drug tested in the months following his complaint, and that he was subjected to more monitored drug tests than other employees. When Canady complained the third or fourth time, he testified he was issued the second and third reprimand all at once and immediately terminated. (2) Knowledge of the Protected Activity by Decision Maker It is undisputed that Meyer was Canady’s direct supervisor. Canady immediately complained to Meyer after EOG’s mud engineer made the KKK remarks to Canady’s crew. It is also undisputed that in the months after Canady began complaining about the KKK comments, Meyer issued the three reprimands