Opinion
No. 01-00-00589-CV
Opinion issued August 9, 2001
On Appeal from the 215th District Court, Harris County, Texas, Trial Court Cause No. 98-35367
Panel consists of Chief Justice SCHNEIDER and Justices HEDGES and NUCHIA.
OPINION
Appellant, Harry Glass, III ("Glass"), sued appellee, Amber, Inc. ("Amber"), for worker's compensation retaliation. The jury found Glass was fired "because he filed a workers' compensation claim in good faith," and awarded $63,000.00 in compensatory damages. The jury also found Amber acted "willfully or maliciously" in discharging Glass, and awarded $300,000.00 in exemplary damages. The trial court granted Amber's motion for judgment notwithstanding the verdict. Glass appeals. We affirm in part, and we reverse in part.
The total amount of damages were for lost wages, employment benefits, mental anguish and medical expenses. Glass testified that: (1) he incurred $500 in out of pocket medical expenses; (2) he earned approximately $32,000 a year; (3) he suffered mental anguish; and (4) that he tried to mitigate his damages by applying for electrical drafting positions and going back to school at night.
Factual and Procedural Background
Glass worked at Amber as a journeyman electrician for more than eight years, almost exclusively at the Rohm Haas jobsite. In 1997, Glass sustained several injuries, and testified that:
In May 1997, Glass's feet began hurting from walking on large, uncrushed rocks at the job site. He told Gary Erskine, his supervisor, and then bought new boots and kept working;
In September 1997, Glass's back was injured as he unloaded a 10-foot long, 200 pound solid steel bar from a truck. Glass informed the foreman of his injury, but an injury report was not filled out;
In October 1997, a co-worker slapped Glass hard on the back. The co-worker was 6'3", 275 pounds, and nicknamed "Lurch." The slap jerked Glass forward, causing vibrations in his back. A few days later, Glass began having numbness in his right arm, but he kept working. Glass testified that he needed his job, and kept working in spite of his injuries because of Amber's cash safety incentive program and because he thought he would get better; and On Friday, November 7, 1997, while he was squatting on the ground and cleaning insulators, Glass injured his knees which began to swell.
On the afternoon of November 7, 1997, Glass was informed by Mike Liggett, the general foreman, that he would be transferred to a new jobsite at Lyondale-Citgo beginning Monday, November 10th. Glass requested a reduction in force lay-off so that he would not have to be transferred, but the request was denied.
Over the weekend on November 8th and 9th, Glass's feet and back were hurting and his arm was numb. On Monday, November 10, 1997, Glass testified he called Amber's main office and told Donna Jensen he would not be coming in to work because of his injuries and asked her to inform his new supervisor at the Lyondale-Citgo job site about his absence. Glass testified he did not know or could not remember who his new supervisor was going to be. Ms. Jensen denies that this conversation took place, although she concedes she could not remember every phone call she got two and a half years ago.
Glass also called Sharon Yarbrough in Human Resources on November 10th. Ms. Yarbrough is in charge of payroll checks, personnel files, and worker's compensation claims. Glass told Ms. Yarbrough about his various injuries, informed her he had been hurt on the job, and asked to speak to the Vice President of the company, Weldon Yarbrough, or to Amber's safety director, Larry Gibson. Ms. Yarbrough said they were not there, but promised to discuss the matter with them. Ms. Yarbrough testified that Glass told her he had been slapped by an employee at the job site. However, Ms. Yarbrough emphasized at trial that Glass had never used the words "on-the-job injury." She testified that Amber never received "official notice" that there had been an on-the-job injury until December 2nd.
On November 11th, Glass visited the doctor. He also called the Worker's Compensation Commission. On November 12th, Glass filled out two notices of injury/claims for compensation at the worker's compensation office for the slap on the back and the injury to his knees.
On November 13th, Glass went to Amber's main office to pick up his paycheck. He spoke with Ms. Yarbrough and told her he had seen a doctor because he was in a lot of pain. He also told her that he had filed worker's compensation claims and would be out for a while, but did not want to quit. Glass testified that Ms. Yarbrough told him that she had discussed his injuries with the CEO and safety director and informed Glass he could not take time off because Amber had concluded the injuries were not work-related. Glass told Ms. Yarbrough that he disagreed with this assessment of his injuries. Ms. Yarbrough testified that Glass told her to cash in 40 hours vacation for that week while he recovered.
On November 13th and 14th, after Ms. Yarbrough told Glass his injuries were not work-related, the safety coordinator, Larry Gibson, conducted an investigation as to whether or not Glass suffered an on-the-job injury. Ultimately, Gibson concluded the claim could not be substantiated and was not an on-the-job injury. He got statements from several employees, but did not interview Glass to find out his version of the events. The employee statements indicated that, although no one saw Glass being slapped that day, he had been slapped in the past.
Glass came into the Amber office on November 20th to pick up his vacation pay check and told Ms. Yarbrough he did not want to quit, but was not sure when he could come back to work because of his injuries. Glass had a follow-up doctor visit on November 22nd.
Glass faxed copies of his two worker's compensation claims to the Amber main office on December 2nd. On December 8th and 9th, he filed two more worker's compensation claims for the foot and back injuries. On December 11th, he received letters denying all of his worker's compensation claims. The letters stated that no injury had been reported and that there had been no injury within the course and scope of Glass's employment at Amber.
On December 12, Glass received a final paycheck. That day, Glass wrote a letter to the CEO, Mr. Shrum, indicating that he did not want to quit and that he had on-the-job injuries, which prevented him from returning to work and performing his regular tasks. Glass testified that he wrote the letter to Mr. Shrum because he "thought that they didn't understand or didn't know what was going on." He testified "I thought that maybe other employees were trying to hide the fact that I had reported injuries and so I was trying to find out if they would accept my claims."
In a letter dated December 15th, from Mr. Shrum, typed by Ms. Yarbrough, Amber informed Glass he was "assumed quit" [sic] as of December 1, because they had not "heard from [him] in two weeks." Glass's last evaluation was also enclosed. It was dated December 1st, and listed his job performance and attendance as satisfactory and his attitude as poor. The form was filled out by Ms. Yarbrough. Glass presented evidence that he had received good to excellent evaluations in the past. Close examination of Glass's personnel record shows some evidence of alteration. Near the words "assumed quit," it appears as though the date "12/16/97" has been erased and replaced with "12/1/97." Glass contends the December 15 letter was written in response to his December 12th letter.
Previously, out of 12 evaluations, he received 10 "excellents" and two "goods" for attendance record, and 12 out of 12 "goods" for performance level. He did well at the company and enjoyed working there so much, that he even named his daughter Amber.
Glass wrote another letter to Amber on December 17th and sent it by certified mail. The letter explained that Glass had not quit, and that he had been keeping the company updated regarding his situation, both in person and via the telephone. It stated, "you certainly have heard from me on multiple occasions . . . I have not quit and am not quitting now. However, since you regard my employment as terminated, it appears I have been fired."
On appeal, Amber contends Glass was fired on December 1st because he failed to report to work and failed to contact his supervisor regarding his absences in a manner consistent with their absence policy. Glass has been diagnosed with cervical spondylosis.
However, the termination letter only said the termination was because "no one had heard" from him.
Glass sued Amber for discharging him in retaliation for having made a compensation claim, as prohibited by Texas Labor Code section 451.001. Glass presented evidence and testimony that he was fired for filing worker's compensation claims for these injuries. At trial, Amber's motion for a directed verdict was denied. The jury rendered a verdict favorable to Glass on his worker's compensation retaliation claims, and then the trial court granted a judgment notwithstanding the verdict ("JNOV").
Section 451.001 states: "A person may not discharge or in any manner discriminate against an employee because the employee has . . . filed a worker's compensation claim in good faith. . . ." Tex. Lab. Code Ann. § 451.001 (Vernon 2001). A person who violates section 451.001 is liable for "reasonable damages incurred" by the employee. Tex. Lab. Code Ann. § 451.002 (Vernon 2001). The burden of proof remains on the employee. See id.
In his first issue on appeal, Glass contends that the trial court erred in granting a judgment notwithstanding the verdict because there was legally and factually sufficient evidence to support the jury's findings. In his second issue, Glass urges that the trial court erred because it did not apply the correct legal standard when it failed to consider all evidence in the light most favorable to the jury finding. He asks this Court to reverse and render judgment granting him all damages awarded by the jury. Amber contends the JNOV was proper because Glass failed to establish a causal connection between the filing of the worker's compensation claims and his discharge. See Continental Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450-51 (Tex. 1996) (requiring either direct or circumstantial evidence to establish a link between termination and the filing of the compensation claim).
Analysis A. Standard of Review
A trial court may grant a JNOV if there is no evidence to support the jury finding on the issue of liability. See Brown v. Bank of Galveston, 963 S.W.2d 511, 513 (Tex. 1998). In determining whether or not to uphold the JNOV, we consider the evidence in the light most favorable to the verdict and all reasonable inferences that tend to support it. See id.; Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 227 (Tex. 1990). We only consider the evidence and inferences supporting the jury's answers. See Associated Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 286 (Tex. 1998). If there is more than a scintilla of evidence to support the jury's finding, then the JNOV will be reversed. See Navarette v. Temple Indep. Sch. Dist., 706 S.W.2d 308, 309 (Tex. 1986).
B. Viewing the evidence in the light most favorable to the verdict, was there more than a scintilla of evidence presented to support the jury finding?
We find there was more than a scintilla of evidence to support the jury findings. The evidence shows that Glass called on the first day he was going to be absent, and then kept in touch with the company as evidenced by the November 13th and November 20th in-person visits, as well as letters. Furthermore, after good evaluations for eight years, on the date of firing, Glass received a poor evaluation, filled out by the same person with whom he had been discussing his worker's compensation claim. In addition, Amber employees testified they had not been officially notified of the filed worker's compensation claims until December 2nd. Amber's timing seems too coincidental when it "fired" Glass the day before, on December 1st, but the termination letter was dated two weeks later. The jury could have believed this was timed to avoid a retaliation action because the letter itself was dated December 15th, suggesting Amber backdated the termination.
Amber contends it never received official notice of Glass's worker's compensation claims until December 2nd, and fired Glass the day before. Even so, it conducted an investigation as early as November 13th, and the jury could have chosen to disbelieve Mr. Gibson and believe instead that the company was aware the worker's compensation claim had been filed on November 13th. Or the jury could have believed, with only nine people working in the office, someone would have heard or seen Glass talk to Ms. Yarbrough. Wrongful discharge is a viable cause of action when an employee is fired once he or she has begun taking steps towards instituting a proceeding for collecting worker's compensation benefits. See Worsham Steel Co. v. Arias, 831 S.W.2d 81, 84 (Tex.App.-El Paso 1992, no writ). Instituting a proceeding begins once an employee informs his employer of his on-the-job injury. See id. (citing Hunt v. Van Der Horst Corp., 711 S.W.2d 77, 80 (Tex.App.-Dallas 1986, no writ)).
Thus, it would have been reasonable for a jury to infer that the letter of termination, which said he was being fired because "no one had heard from him in two weeks," was pretextual because Glass had begun taking steps to institute a worker's compensation proceeding. Even though the evidence may be conflicting, the jury is entitled to believe either story. The jury seemed to believe that Mr. Glass acted reasonably. As the sole judge of the credibility of witness testimony, the jury can discount the testimony of any witness. See Skrepnek v. Shearson Lehman Bros., Inc., 889 S.W.2d 578, 579 (Tex.App.-Houston [14th Dist.] 1994, no writ). Because there is more than a scintilla of evidence to support the jury's verdict, we sustain Glass's first issue.
Amber contends the evidence is legally insufficient to establish worker's compensation retaliation, arguing that Glass has not provided the evidence required by the Supreme Court's Continental Coffee decision. 937 S.W.2d at 450 (requiring either direct or circumstantial evidence to establish a link between termination and the filing of the compensation claim). A plaintiff does not have to prove that the termination was "solely because" of a worker's compensation claim. See id. The plaintiff must merely establish, through circumstantial evidence and the reasonable inferences stemming from such evidence, a causal connection between the termination and the filing of the claim. See id. at 451.
A causal link between termination and filing a compensation claim may be established by offering some proof of any of the following: (1) knowledge of the compensation claim by those making the termination decision; (2) a negative attitude expressed toward the employee's injured condition; (3) failure to follow established company policies; (4) discriminatory treatment in comparison to similarly situated employees; or (5) evidence that the stated reason for discharge was false. See id. We find the evidence legally sufficient to support the jury verdict because Glass proved the necessary causal link under Continental Coffee. We discuss each prong in turn.
1. Knowledge of the compensation claim by those making the termination decision
First, there was evidence to suggest the company knew of the worker's compensation claim before the decision to terminate was made. If we view the evidence in the light most favorable to the verdict, Glass informed Ms. Yarbrough he was injured and would need time off on November 10th. Glass faxed copies of the claims to Amber on December 2nd. No particular form or manner of notice of a worker's compensation claim is required. See U.S. Fire Ins. Co. v. Ramos, 863 S.W.2d 534, 538 (Tex.App.-El Paso 1993, writ denied) (finding an employer had actual notice when a worker told his supervisor months earlier that he was having problems breathing and then told his supervisor he had seen a lung specialist).
2. A negative attitude expressed toward the employee's injured condition
There is some evidence of a negative attitude towards Glass after the claims were filed. Glass was given a poor evaluation after filing the claims. Sudden changes in employee evaluations have been considered circumstantial evidence of retaliation. See Castor v. Laredo Community College, 963 S.W.2d 783, 785 (Tex.App.-San Antonio 1998, no pet.). In addition, when Mr. Gibson did the investigation, he never spoke to Glass. Amber cites Urquidi v. Phelps Dodge Ref. Corp., 973 S.W.2d 400, 404 (Tex.App.-El Paso 1998, no pet.), to establish that there was no evidence of retaliation. We do not disagree with Urquidi; however, we find Amber's reliance on the case improper. Urquidi stands for the proposition that an employee's subjective beliefs are not probative of a negative attitude towards injured employees. See id. at 405. In the case before us, Glass's evidence rises above the level of his own subjective belief, as is evidenced by his suddenly poor evaluations.
3. Failure to follow established company policies
The absence policy at Amber required employees who were going to miss work to notify their supervisor before their shift started. A copy of the policy was not given to the employees. The only number listed on the policy to call for absences was the number for the Rohm Haas worksite, but Amber contends that Glass should have notified Lyondell-Citgo of his absences. Glass testified he was scheduled to be transferred from the Rohm Haas worksite for the first time in many years and he did not remember who his new supervisor was going to be at the Lyondell-Citgo site.
However, a copy of the policy was posted on a big board in front of the compound.
However, there was testimony suggesting that the supervisors' names on the various jobsites were common knowledge, and that Glass knew who his next boss would be.
Amber did not uniformly apply its absence policy. The written policy says the employee is to call a supervisor on the first day he will be out. But testimony indicates that there are a variety of interpretations of this policy. Ms. Yarbrough testified that an employee must call in every day. Eddy Cox testified that an employee could either call the front office or his supervisor, and Donna Jensen's testimony confirms this. Ms. Jensen testified workers have called her in the past and she passes such messages on to the supervisor. Mike Ligget testified that the policy was just to call in and let someone at the company know.
Indeed, Glass has followed this policy himself in the past without problems. Glass testified that, in the past, when he needed to have surgery, or was going to be out, he would call the secretary in the office, and the secretary would relay the message to the supervisor without any problem. It was difficult to get in touch with the supervisors because they were often out in the field. Glass's supervisor testified that if an employee had discussed an absence prior to taking leave, one call would be okay, but anything that was not arranged in advance had to be phoned in daily.
We recognize that non-uniform enforcement of a reasonable absence policy does not automatically constitute retaliatory discharge. See Texas Division-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 313 (Tex. 1994); Urquidi, 973 S.W.2d at 405. However, probative evidence was offered suggesting the policy was not uniformly enforced.
4. Discriminatory treatment in comparison to a similarly situated employee .
Glass presented no evidence of discriminatory treatment as compared to a similarly-situated employee. He tried to show that the Amber was more accommodating to a supervisor who suffered from cancer. A cancer patient, however, is not a similarly-situated employee because cancer does not result from an on-the-job injury requiring a worker's compensation claim. Nevertheless, we believe that Glass did present enough evidence to establish the necessary causal link between the termination and the filing of the claim.
5. Evidence that the stated reason for discharge was false .
There is also some evidence that suggests the reason for discharge was false. Ms. Yarbrough admits Glass spoke with her, came in to get paychecks, and told her about his injuries. Despite that, the reason given for termination was that no one had heard from Glass. The timing of the letter was suspicious, given that it was written two weeks after the "official notice" of the claims, but may have been back-dated to a day before the official notice.
6. Incentive to refrain from reporting on-the-job injuries
In addition to the laundry list of Continental Coffee factors, at least one appellate court has held that a company's incentive program designed to encourage employees to refrain from reporting on-the-job injuries may be some circumstantial evidence to support a finding of unlawful termination for filing a worker's compensation claim. Urquidi, 973 S.W.2d at 404. Amber had a safety incentive program, whereby cash was distributed to those workers who had reported no injuries. Amber fails to address this point in its brief.
We note that not all safety incentive programs that encourage workers to follow safety directions should be considered evidence of a causal link between termination and the filing of a compensation claim. We merely recognize that a program that provides rewards for refraining from reporting on-the-job injuries may be some evidence that could be used to support a worker's compensation retaliation action.
Based on the record before us, the evidence is legally sufficient to support a discriminatory reason for Glass's termination. Although some of the evidence may be conflicting, this court is not a fact finder, and we will not substitute our judgment for the jury's, even if the evidence could have supported another result. See Clancy v. Zale Corp., 705 S.W.2d 820, 826 (Tex.App.-Dallas 1986, writ ref'd n.r.e.). After considering the evidence in the light most favorable to the jury verdict and making all reasonable inferences that tend to support it, we find there is more than a scintilla of evidence to support the jury verdict. We reverse the award of the JNOV and render judgment awarding Glass the jury's verdict as to compensatory damages.
C. Exemplary Damages
The jury awarded $300,000 to Glass in punitive damages. To recover punitive damages for worker's compensation retaliation, a plaintiff must prove the employer acted willfully and with actual malice. See Continental Coffee, 937 S.W.2d at 452. Actual malice is characterized by "ill will, spite, evil motive, or purposing the injuring of another." See id. The act must be of a wanton and criminal or malicious nature. See id. at 454. The fact that the act may be unlawful is not enough; only egregious violations of the statute will be subject to punitive awards. See id.
Glass relies on the following evidence to establish actual malice and support the jury's verdict:
1. Amber's safety incentive program offers employees a cash bonus each quarter if no injuries have been reported for that period. Glass views this policy as a disincentive to report injures.
2. Glass testified that Amber did not fill out safety forms when a violation occurred. However, a supervisor testified they always filled out safety forms, and if an injured employee did not feel that Amber had taken appropriate actions, they could have filled out an injury report with Rohm Haas, which had a reputation of being strict about injury reports.
3. In the past when Glass had injured his hand, Amber took Glass to a doctor and asked if it could just pay cash outright for the injury, instead of having to file with their insurance company and risk having the worker's compensation coverage go up. One supervisor testified that Amber's customers and potential customers ask about injury rates, so the company wanted to keep the injury rates low. The CEO of the company also explained that it was good to keep injury rates low, because then worker's compensation insurance stays low.
4. An inference can be made that Amber backdated the termination date to December 1, a day before it received notice of the worker's compensation claims. As evidence of such backdating, there appears to be an alteration of the date of termination on the personnel record.
5. Amber may have violated a provision of the Labor Code with criminal penalties if it knowingly or intentionally made a false or misleading statement or misrepresented or concealed a material fact to its insurance carrier. Amber reported to the insurance carrier that Glass had not reported an injury within 30 days, although Glass had informed Amber of his injuries through Ms. Yarbrough.
6. Amber never contacted Glass at home to hear his side of the story.
Based on this evidence, the jury found that Amber acted maliciously in firing Glass and awarded punitive damages. The question before us is whether there is sufficient evidence of malice to support the jury's award of punitive damages. Even viewing this record in the light most favorable to the jury finding, it does not constitute more than a scintilla to support a finding of actual malice.
Although the evidence supports the finding that Glass was terminated for unlawful reasons, there is not enough specific evidence to rise to the wanton and malicious standard articulated in Continental Coffee. See id. All of the evidence Glass relies upon helps to establish that the termination was unlawful; however, there is no additional egregious act upon which to base an award of punitive damages. Substantially more evidence of maliciousness is needed to support an award of punitive damages than is present here; the conduct must be truly egregious. See Stevens v. Nat'l Edu. Ctrs., Inc., 990 S.W.2d 374, 377 (Tex.App.-Houston [14th Dist.] 1999, pet. denied).
For example, exemplary damages have been upheld in a worker's compensation termination case when the company: 1) denied the employee access to a restroom while he was on light duty; 2) refused to discuss the compensation claim with the employee until he fired his attorney; and 3) fired him when a doctor's release was presented allowing him to return to work on full duty. See Gorges Foodservice, Inc. v. Huerta, 964 S.W.2d 656, 674 (Tex.App.-Corpus Christi 1997, pet. dism'd by agr.). In Huerta, there were additional egregious acts directed at the employee personally, independent of the illegal termination that supported an award of punitive damages.
However, under the Continental Coffee standard, specific evidence of malice needs to be present before a company's conduct will rise to the level of egregiousness required to support an award for punitive damages. See, e.g., Stevens, 990 S.W.2d at 377. In Stevens, a jury awarded an employee $2.5 million in punitive damages. The trial court granted a JNOV, and the Fourteenth Court of Appeals affirmed, finding no evidence of egregious conduct. See id. The evidence of malice presented included: 1) a co-worker's testimony that he was ordered by a supervisor to "dig up dirt" against the employee; 2) company executives telling the employee she was "faking her injury"; 3) a supervisor flinging papers across the desk at the employee; and 4) the company never contacting the employee at home or at the hospital. See id.
All the evidence Glass relies on was also used to establish the illegality of the termination. The "heightened conduct necessary for the award of punitive damages in anti-retaliation cases may not be found from the employer's intentional wrongdoing in terminating the employee." See CD Robotics, Inc. v. Mann, No. 06-00-00098-CV, 2001 WL 543430 (Tex.App.-Texarkana, May 24, 2001) (designated for publication). Without additional, different evidence of egregiousness, a jury award of punitive damages must be reversed. See Wal-Mart Stores, Inc. v. Holland, 956 S.W.2d 590, 597 (Tex.App.-Tyler 1997, pet. granted on the issue of attorney's fees) ( rev'd on other grounds, 1 S.W.3d 91 (Tex. 1999)). Thus, we conclude there is no evidence to support the jury's finding of malice, and we reverse the exemplary damages award. We find the trial court did not err in granting a JNOV in favor of Amber as to punitive damages.
D. Appellant's Second Issue
Glass contends the trial judge erred in granting a JNOV because he relied, in part on the following testimony:
The final judgment says "The court hereby disregards the jury verdict. One factor the Court considered in this regard was Mr. Glass's testimony . . . that he did not know which of his several compensation claims was the basis of his termination. Additionally, the Court is persuaded that Glass did not satisfy the standard set out by the Texas Supreme Court in Continental Coffee. Therefore, the Court orders that plaintiff, Harry Glass, III, take nothing by his suit."
AMBER'S ATTORNEY: Okay. Which of these worker's compensation claims are you claiming was the basis for Amber's firing you? Was it the slap on the back that you supposedly incurred in October of 97, your twisted knee in November of 97, your broken feet in May of 97, your back in September of 97 or the exposure to toxic chemicals throughout the course of your employment with Amber?
GLASS: I'm not sure.
AMBER'S ATTORNEY: You don't know?
GLASS: No.
In light of our previous holding that the JNOV was improper, it is not necessary for us to address this issue. However, we feel it is worth noting that, under the Texas Labor Code, it is illegal to fire someone for filing a worker's compensation claim in good faith. Tex. Lab. Code Ann. § 451.001. It is irrelevant if the claim filed is meritorious. In addition, if more than one claim is filed and the worker is terminated in violation of the statute, the Texas Labor Code does not require an injured worker to identify which claim the company relied upon in the illegal termination. As a lay person, the injured worker may not be able answer technically which claim was the basis of his termination, and this should not be held against him.
Conclusion
We reverse the trial court's grant of the JNOV as to compensatory damages, and we remand for entry of judgment on appellant's compensatory damage ($63,000) jury award. In all other respects, we affirm the judgment of the trial court.