Court of Appeals of Texas, El Paso.

CITY OF EL PASO, Appellant,

v.

Michael DRAPER, Appellee.

No. 08-99-00435-CV.

|

May 24, 2001.

OPINION

McCLURE.

*1 The City of El Paso appeals from a judgment entered in favor of Michael Draper following a jury trial on Draper’s retaliation claim brought under Tex.Lab.Code Ann. § 451.001 (Vernon 1996). We affirm.

FACTUAL SUMMARY

Michael Draper, a fire suppression technician employed by the El Paso Fire Department, suffered carbon monoxide poisoning at a fire scene on December 10, 1995, when he entered a building without his breathing apparatus. Even though the fire had been extinguished, toxic fumes and smoke remained in the building. As a result of his injuries, Draper filed a workers’ compensation claim. From the outset of reporting his injury, Draper met with substantial resistance from his supervisors and coworkers who did not believe he had suffered a work-related injury. One supervisor called Draper a fraud upon learning of his claimed injury and did not file the appropriate report of injury and other documents in connection with the claim. Draper worked intermittently for more than two and one-half years after his injury. When it finally became apparent to him that he would not be allowed to continue as a productive member of the Fire Department, Draper began utilizing the leave he had accumulated during more than seventeen years of service with the Fire Department with the stated intention to take an early retirement upon the expiration of all of his leave.

Although he eventually received his workers’ compensation benefits, Draper sued the City under Section 451.001 of the Texas Labor Code for discriminating against him in retaliation for pursuing workers’ compensation benefits. He alleged that he had been constructively discharged although he did not plan to formally retire until he had utilized all of his accumulated leave. The jury, finding that the City had constructively discharged or otherwise discriminated against Draper, awarded damages in the amount of $140,000. In addition to attacking the legal sufficiency of the evidence supporting the constructive discharge and retaliation findings, the City asserts that the trial court committed charge error.

LEGAL SUFFICIENCY

In Issues One, Two, and Six, the City challenges the legal sufficiency of the evidence to support the jury’s findings of discrimination, constructive discharge, and causation.

The Standard of Review

A “no evidence” or legal insufficiency point is a question of law which challenges the legal sufficiency of the evidence to support a particular fact-finding. Wyler Industrial Works, Inc. v.. Garcia, 999 S.W.2d 494, 498 (Tex.App.-El Paso 1999, no pet.). As we explained in Wyler, there are two separate “no evidence” claims. Id. at 498-99. When the party having the burden of proof suffers an unfavorable finding, the point of error challenging the legal sufficiency of the evidence should be that the fact or issue was established as “a matter of law.” Where, as here, the party without the burden of proof suffers an unfavorable finding, the challenge on appeal is one of “no evidence to support the finding.” Wyler, 999 S.W.2d at 499. In considering a “no evidence,” or legal insufficiency point, we view the evidence in the light most favorable to the challenged finding and consider only the evidence that tends to support it while disregarding all evidence and inferences to the contrary. Garza v. Alviar, 395 S .W.2d 821, 823 (Tex.1965); Wyler, 999 S.W.2d at 499. If more than a scintilla of evidence exists to support the questioned finding, the “no evidence” point fails. Tseo v. Midland Am. Bank, 893 S.W.2d 23, 25 (Tex.App.-El Paso 1994, writ denied).

The Jury’s Findings

*2 Section 451.001 provides:

A person may not discharge or in any other manner discriminate against an employee because the employee has: (1) filed a workers’ compensation claim in good faith; (2) hired a lawyer to represent the employee in a claim; (3) instituted or caused to be instituted in good faith a proceeding under Subtitle A; or (4) testified or is about to testify in a proceeding under Subtitle A. [Footnote omitted].

Tex.Lab.Code Ann. § 451.001. Consistent with Section 451.001, the trial court submitted to the jury Question One which inquired:

DID THE CITY OF EL PASO constructively discharge or discriminate against MICHAEL DRAPER because he instituted or caused to be instituted a worker’s compensation claim in good faith?

An employee is considered to have been constructively discharged when an employer makes conditions so intolerable that a reasonable person in the employee’s position would have felt compelled to resign.

There may be more than one cause for an employment decision. An employer does not discharge or discriminate against an employee for instituting or causing to be instituted a worker’s compensation claim in good faith if the employer would have engaged in the same conduct toward the employee, if it did, even if the employee had not instituted or caused to be instituted a worker’s compensation claim in good faith.¹

By answering this question affirmatively, the jury found that the City either constructively discharged Draper or discriminated against him because he instituted a workers’ compensation claim. As it must, the City challenges all three aspects of the finding, that is, constructive discharge, discrimination, and causation. However, if the evidence is legally sufficient to establish that the City constructively discharged Draper, then it is unnecessary for us to consider the City’s arguments pertaining to the jury’s finding of discrimination since a finding of constructive discharge is sufficient to establish the discharge element of Section 451.001.² Consequently, we will first consider whether there is more than a scintilla of evidence to support the constructive discharge finding rather than addressing the arguments in the order presented.

Constructive Discharge

In Issue Two, the City attacks the jury’s finding that it constructively discharged Draper. Constructive discharge occurs when an employer makes conditions so intolerable that an employee reasonably feels compelled to resign. Hammond v. Katy Indep. Sch. Dist., 821 S.W.2d 174, 177 (Tex.App.-Houston [14th Dist.] 1991, no writ). To find a constructive discharge, a court must determine whether a reasonable person in the employee’s position would have felt compelled to resign. Id. We examine the conditions imposed, rather than the employer’s state of mind. Id. An employee does not need to prove that an employer subjectively intended to force the employee to resign. Hammond, 821 S.W.2d at 177. While general evidence of mere harassment, without more, is insufficient to establish constructive discharge, evidence which shows a pattern of retaliation and pervasiveness of the employer’s negative attitude has been held sufficient to support such a finding. See Passons, 969 S.W.2d at 564 (cumulative effect of state university’s conduct could have supported jury finding of constructive discharge in assistant dean’s sex discrimination action; dean produced evidence that she was treated more harshly than her male counterparts in connection with alleged improper use of funds, that she was threatened with humiliating criminal and financial sanctions, and that pervasiveness of supervisors’ conduct and attitudes convinced her that she was being forced to leave position).

*3 The City maintains that the jury’s finding of constructive discharge is not supported by the evidence because Draper had not resigned at the time of trial, and further, he had not been at work for two years so there could not be any “intolerable workplace conditions.” At oral argument, the City further asserted that constructive discharge does not exist when a plaintiff takes an early medical retirement because the reason for the discharge is the employee’s medical condition rather than any conditions created by the employer. To the extent the City argues that constructive discharge can only be based upon resignation rather than retirement, we disagree. Although we have found no cases discussing the concept of constructive discharge in facts similar to those at issue here, we believe a finding of constructive discharge is permissible where the evidence shows that the plaintiff has determined that he has no choice but to take an early retirement due to the conditions created by the employer. The key inquiry is whether the employer’s conduct has forced the plaintiff to leave his position before he otherwise would have done so. We also decline to hold under the unique facts of this case that a constructive discharge does not occur until the plaintiff has formally resigned or retired. In this case, Draper had substantial accumulated leave to exhaust before formally retiring. To hold that Draper could not obtain a finding of constructive discharge unless he first exhausted all of his leave and formally retired would impose an unnecessary and unfair requirement.

We are also unpersuaded by the City’s argument that constructive discharge does not exist because Draper’s medical condition is the sole reason for the early retirement. The jury had before it evidence that Draper could have stayed on the City payroll despite his medical condition through the City’s Absence with Pay policy which supplements workers’ compensation. Thus, his medical condition, standing alone, did not compel his retirement. It was for the jury to resolve the fact issues and determine whether or not the evidence supported constructive discharge. Finally, the City’s argument that there could be no constructive discharge since Draper had not been present at work during the two years prior to trial also misses the mark. The issue is not whether the intolerable work conditions exist at the time of trial but rather whether they existed at the time the plaintiff made his decision to not return to work. As will be detailed below, the jury had before it evidence of intolerable work conditions existing at the time Draper made his decision in July of 1997 to leave the Fire Department. The fact that he had a substantial amount of accumulated leave to exhaust before he retired does not preclude a finding of constructive discharge. Further, Draper testified that a pervasive negative attitude towards him still existed at the Fire Department as exhibited to him each time he went to pick up his check at administration.

*4 Viewing the evidence in the light most favorable to the jury’s finding, Draper established that the Fire Department engaged in a pattern of discriminatory conduct beginning with Draper’s report of injury in December of 1995 and extending for more than two and one-half years. Beginning with his initial report of the injury to District Chief Warling, the Fire Department exhibited a negative attitude towards Draper’s claim of an on-the-job injury. Warling had been present at the fire scene and he did not believe Draper could have been injured. At this particular fire, a vehicle caught fire in a residential garage. Draper’s duties included ventilating the house and mopping water inside of the home to prevent further smoke and water damage while another crew extinguished the fire in the garage. Draper compartmentalized smoke in a pantry area by shutting the kitchen door to prevent more smoke from entering the home. The crew in the garage shut another door into the pantry which had the effect of sealing the smoke and fumes in the pantry. Following a break for the firefighters, Warling ordered Draper and his crew to mop the water off of the pantry floors. Unfortunately, Draper did not put on his breathing apparatus before working in the pantry for approximately twenty minutes. By the time they returned to the station, Draper had a severe headache. He did not inform anyone of the headache because firefighters sometimes suffered from headaches after fighting a fire and he believed it would go away. Near the end of his twenty-four hour shift, Draper vomited after eating lunch and he began experiencing the spinning sensation characteristic of vertigo. At that point, he knew that he had been “poisoned” at the fire and he informed Lieutenant Gavin Teague and Captain Ronnie Ruiz. When he called Warling to notify him of the injury, Warling replied, “No way. I was in that room. Nothing happened to me.” Due to his severe headache, nausea, and vertigo, Draper went home. The symptoms did not improve and in fact worsened, but because he could not drive, Draper was unable to see a doctor immediately. Draper finally saw Dr. Shahinian two days later who mistakenly diagnosed an inner ear infection as the cause of his symptoms. Draper was initially absent from work a total of twenty days as a result of this condition but he eventually returned to work in January of 1996.

Because Dr. Shahinian treated only work-related injuries and was not on his HMO, Draper feared that the initial visit would not be paid so he called Roberta Cole, the third party administrator for the City of El Paso. She advised Draper to file the appropriate paperwork as if it were a work-related injury because he had gone to the doctor with a good faith belief that he had suffered an on-the-job injury. In compliance with that advice, Draper filed several reports with Warling, including the employer’s first report of injury, and he informed Warling of what he had been told by Cole. Warling responded by accusing Draper of committing fraud. Several weeks later, Draper began receiving bills for the initial office visit to Dr. Shahinian. He called Cole and questioned her regarding the non-payment. She told him that they had never received the report of injury. Draper also called Pat Diamanti, head of personnel for the City of El Paso, who confirmed that she had not seen a report of injury. When he went back to Chief Warling to find out what had happened to the paperwork, Warling shocked Draper by replying that he had thrown away the supervisor’s report of injury.³ At trial, Warling denied making that statement, but did admit that he did not complete the report because he had been informed that Draper’s injury was not job-related. Under those circumstances, he believed he would be committing fraud if he forwarded the report. Warling also stated that he never received any of the other reports because those go directly from the employee to administration. As a result of Warling’s actions, Draper was forced to reinitiate the reports several months after the injury had occurred. Draper also notified several members in the Fire Department’s chain of command, including Deputy Chief Gregersen, Chief Roberts, Administrative Chief Tarango, and Fire Chief Mehl⁴ that Warling had thrown away his report of injury and other reports and had accused him of fraud but he received no response. Roberts, who was the Fire Department’s Safety Officer, told him in a related conversation that “the City is not going to lie down on this one.” Draper understood Roberts’ comment to mean that he believed Draper was trying to “screw the City” by filing his workers’ compensation claim. Despite Warling’s claim that he had thrown the report away, the supervisor’s report of injury was actually received by Assistant Chief Johns, but he crossed off his signature from the report after signing it, claiming that the report was incomplete. According to Johns, he turned over the report to Gregersen with instructions that it be returned to Warling and completed correctly. Warling, however, never made Draper aware that the report had been returned to him and he did not correct the report and return it back to Johns for his signature. Although Johns did not know of Warling’s comments to Draper at the time, he later learned of these events. Approximately nine months after his injury, a specialist in occupational medicine⁵ determined that Draper had suffered carbon monoxide poisoning in the fire. Despite being shown the report by Draper, Warling’s disbelief continued, exhibited by his comment to Draper, “You better find out what’s really the matter with you because it isn’t the smoke.”

*5 After Draper filed the report of injury, he began to notice a change in attitude towards him exhibited by Johns and others in the chain of command, an attitude which persisted even after it had been established that he had suffered an on-the-job injury. Whereas Johns had always been cordial in the past, Draper noticed that he was now aloof and would not look him in the eye. Warling also avoided contact with him. After Draper returned to duty, Warling often singled out Draper at fire scenes and ridiculed him in front of the other firefighters by reminding Draper to wear his “Scott”⁶ even though his duties did not require him to enter the structure. In mid-1997, while Draper was working light or transitional duty at the administration office, Assistant Chief Tarango prohibited Draper from utilizing the Fire Department’s exercise equipment even though the only restriction placed on Draper by his doctor was that he not drive. Because Draper’s job as a firefighter required him to remain physically fit and to work out for a half hour each day and the Department had refused his request that he become an instructor at the training academy, Draper realized that he would not be allowed to return to work as a productive member of the Fire Department. Consequently, he determined that he would begin to exhaust his accumulated leave before taking an early retirement.

Consistent with the attitude exhibited by Warling and other supervisory personnel towards Draper, other members of the Fire Department began joking about Draper and accusing him of faking his injury. At least one member of the Fire Department directly stated to Draper that nothing was wrong with him and he just wanted to retire early. On one occasion while at the administration office, Draper overheard an individual joke with other Fire Department personnel that Draper was “doing [his] Muhammad [sic] Ali imitation .”⁷ This negative attitude towards Draper’s injury was fostered by numerous members of the Fire Department, including some of its highest ranking officers, and it caused the firefighters to lose confidence in Draper because some firefighters felt they could not depend on him.

In addition to the negative attitude towards Draper’s injury, the Fire Department treated him different than other similarly-situated employees. The Fire Department’s written policy requires members to report any and all on-the-job injuries, illnesses, and exposures, no matter how slight, to their officer, who must make the proper reports and entries. The same policy places the responsibility for obtaining proper medical treatment on the officer receiving the report. While Draper complied with his duty to report his injury, Warling did not make the proper reports nor did he obtain medical attention for Draper. To the contrary, he expressed his disbelief, accused Draper of fraud, and failed to file the report necessary for Draper to obtain benefits.

During the course of his seventeen and a half years with the Fire Department, Draper had never experienced any difficulty with his paycheck becoming lost until after he filed his claim for benefits. On several occasions while on sick leave, Draper would attempt to pick up his paycheck only to be told that it had been sent to a different location. On some occasions, his check would be at the administrative office, while at other times, he had to travel to the training academy or other fire stations to find it. Draper was never reimbursed for two checks which became lost. The problem with his checks did not cease until Draper telephoned Tarango and angrily demanded that the problem be resolved. Other firefighters did not have this same problem.

*6 As another example of discriminatory treatment, Draper was not advised when he had exhausted his sick leave. Ordinarily, a Fire Department employee on sick leave is advised by the personnel department when he is about to exhaust his sick leave so he can substitute vacation or some other form of leave, and thereby continue to be paid. The personnel department did not extend this same courtesy to Draper.

Draper also received a formal written reprimand on June 19, 1996, one month after he filed his second claim for benefits. Fire Chief Mehl reprimanded Draper for not obtaining authorization for a “working out of class” form, and for filing four copies of a certain report rather than five.⁸ Despite receiving Draper’s reports about Warling’s failure to obtain medical treatment for him and file the report of injury, the Fire Department did not reprimand Warling.

As can be seen from the above evidence, supervisory personnel of the Fire Department not only permitted a negative attitude to exist towards Draper and his claim of an injury, they fostered it. Insinuating that Draper is hypersensitive, the City asserts that he produced nothing more than a perceived aloofness on the part of management and that evidence amounting to nothing more than Draper’s own bruised feelings is inadequate to establish intolerable work conditions.⁹ If Draper had produced nothing more than evidence of hurt feelings and offered no evidence of identifiable actions by his employer to create intolerable work conditions, we would agree that the evidence would be insufficient to establish constructive discharge. That is not the case here. When an injured employee is faced with statements of staunch disbelief of his injured condition, accusations of fraud upon filing a report of work-related injury, disposal of the report of injury, the employer’s failure to adhere to its own policies, discriminatory treatment of the employee in comparison with similarly situated employees, and a pervasive negative attitude regarding the employee’s condition, there is more than a scintilla of evidence to support the jury’s finding that a reasonable person in the employee’s position would have felt compelled to resign or retire.

Causation

In Issue One, the City asserts that there is no evidence to support the jury’s finding that it engaged in discriminatory conduct because Draper filed a workers’ compensation claim. Having already found that the evidence supports the constructive discharge finding, it is unnecessary to address the City’s argument regarding the discrimination finding. Therefore, we turn our attention to the question whether Draper offered sufficient evidence to prove causation.

In a retaliation case under Section 451.001, the employee has the burden of establishing a causal connection between the discharge and his claim for workers’ compensation benefits. Wyler, 999 S.W.2d at 500; Urquidi v. Phelps Dodge Refining Corp., 973 S.W.2d 400, 403 (Tex.App.-El Paso 1998, no pet.). While it is unnecessary for the employee to prove that the compensation claim was the sole cause of his discharge or other discriminatory treatment, he must show that without his protected conducted, the employer’s prohibited conduct would not have occurred when it did. Continental Coffee Products Co. v. Cazarez, 937 S.W.2d 444, 450-51 (Tex.1996); Wyler, 999 S.W.2d at 500; Urquidi, 973 S.W.2d at 403. Thus, our task is to determine whether there is more than a scintilla of evidence to show that but for Draper’s filing of a workers’ compensation claim, the City would not have constructively discharged him when it did.

*7 Circumstantial evidence has been recognized as supporting a finding of unlawful discrimination, and it includes:

• the employer’s knowledge of the compensation claim by those making the decision to terminate;

• a negative attitude towards the employee’s injured condition;

• failure to adhere to established company policies;

• discriminatory treatment of the injured employee in comparison to similarly situated employees; and

• providing incentives to refrain from reporting on-the-job injuries.

See Wyler, 999 S.W.2d at 501; Urquidi, 973 S.W.2d 403-04.

Knowledge of the Claim

In the case of constructive discharge, this factor should be modified to inquire whether those persons who perpetuated the intolerable conditions had knowledge of the workers’ compensation claim. The testimony at trial revealed that Fire Chief Mehl, Assistant Chief Johns, and many of their subordinates, including District Chief Warling, Assistant Chief Gregersen, Administrative Chief Tarango, Chief Roberts, and Lieutenant Fernandez, had knowledge of the compensation claim. As we detail elsewhere in the opinion, several of these individuals engaged in conduct and took action which created the conditions forcing Draper’s decision to retire early from the Fire Department.

Negative Attitude

As discussed in connection with the constructive discharge issue, Draper presented substantial evidence of a negative attitude displayed by the Fire Department towards his injured condition. The negative attitude began with his initial report of injury to Warling and it continued throughout the next two and one-half years as Draper attempted to return to work. This negative attitude towards Draper’s injury was fostered by numerous members of the Fire Department, including some of its highest ranking officers, and it resulted in a serious loss of confidence in Draper. Not only did the negative attitude persist during this entire time period, it pervaded all levels of the Fire Department. As one indication of the Fire Department’s increasingly negative attitude towards Draper, Tarango prohibited Draper from using the Fire Department’s equipment to work out even though Draper’s doctor had not restricted him from exercising. Given the family-like relationship of the firefighters and the confidence which they necessarily must have in one another due to the dangerous nature of their job, the jury could have found that such a change of attitude has more significance than in other employment settings.

Failure to Adhere to Established Policy and Discriminatory Treatment of the Injured Employee

Draper also presented evidence that the City failed to adhere to its own policies pertaining to on-the-job injuries and it treated him differently than other similarly situated employees. First, the Fire Department did not adhere to its written policy of obtaining proper medical treatment for an injured employee and it did not make the proper reports of Draper’s injury. To the contrary, Warling expressed his disbelief, accused Draper of fraud when he attempted to file the report, and then conveniently set the report aside after it had been returned to him allegedly for inclusion of missing information.

*8 After reporting his injury and filing his claim, Draper began experiencing different treatment than he had during his previous seventeen and one-half years with the Fire Department. For example, his paychecks became misplaced with increasing frequency even though he had never experienced any difficulty with his paycheck becoming lost and other firefighters did not have this problem. As another example of discriminatory treatment, Draper was not notified when he had exhausted his sick leave so that he could substitute another form of leave and continue to be paid even though the personnel department extended this courtesy to other firefighters on sick leave. Draper also received a formal written reprimand on June 19, 1996, one month after he filed his second claim for benefits, for failing to follow procedure regarding the proper completion of paperwork. The Fire Department never reprimanded Warling for failing to obtain medical treatment for Draper or disposing of his report of injury.

When the above evidence is considered in the light most favorable to the jury’s findings, there is more than a scintilla of evidence to show that but for Draper’s filing of a workers’ compensation claim, the City would not have constructively discharged him. Consequently, the evidence is legally sufficient to support the jury’s finding of causation. For all of these reasons, Issues One, Two, and Six are overruled.

CHARGE ERROR

In Issues Three, Four and Five, the City complains that the trial court did not include an instruction pertaining to causation, did not specifically define what constitutes an adverse employment action, and failed to include the word “workplace” in its instruction regarding constructive discharge. Pursuant to Rule 277 of the Rules of Civil Procedure, the trial court must submit proper instructions and definitions in order to enable the jury to return a verdict. Tex.R.Civ.P. 277; Island Recreational Development Corporation v. Republic of Texas Savings Association, 710 S.W.2d 551, 555 (Tex.1986). An explanatory instruction is proper when it is a correct statement of the law as applicable to the facts. Southwest Airlines Co. v. Jaeger, 867 S.W.2d 824, 834 (Tex.App.-El Paso 1993, writ denied). Further, if an instruction might aid the jury in answering the issues presented to them, or if there is any support in the evidence for an instruction, the instruction is proper. Louisiana-Pacific Corp. v. Knighten, 976 S.W.2d 674, 676 (Tex.1998). Given the trial court’s broad discretion in implementing Rule 277, the refusal to submit requested instructions will be upheld unless the court abused its discretion. See Louisiana-Pacific Corp., 976 S.W.2d at 676; Southwest Airlines, 867 S.W.2d at 834. To constitute an abuse of discretion, we must find that the error in the charge probably caused the rendition of an improper judgment. See Tex.R.App.P. 44.1(a)(1); Magro v. Ragsdale Brothers, Inc., 721 S.W.2d 832, 836 (Tex.1986); Chandler v. Chandler, 842 S.W.2d 829, 834 (Tex.App.-El Paso 1992, writ denied).

The City’s Requested Instruction

*9 The trial court refused to submit the following instruction as requested by the City:

A plaintiff, in order to prove a case of retaliation, must show that: (1) the plaintiff filed a workers’ compensation claim in good faith; (2) an adverse employment action occurred; and (3) there was a causal connection between the filing of the workers’ compensation claim and the adverse employment action.

An ‘employment action’ does not include every decision made by an employer, but only those that directly affect a person’s employment status, such as in hiring, granting leave, discharging, promoting or compensating.

An employee is considered to have been ‘constructively discharged’ when an employer makes the workplace conditions so intolerable that a reasonable person in the employee’s position is compelled to resign. [Citations omitted].

Causation

In Issue Three, the City complains that the trial court failed to submit an instruction regarding causation. The City does not explain how Question One and its accompanying instructions, which track the relevant Texas Pattern Jury Charges,¹⁰ fails to properly instruct the jury regarding causation. The question required the jury to determine whether the City’s constructive discharge or discrimination against Draper occurred because he had filed a workers’ compensation claim in good faith. Further, the trial court’s instruction required the jury to find, in effect, that the constructive discharge or discrimination would not have occurred when it did but for the filing of the workers’ compensation claim. This is a correct statement of the causation standard. Issue Three is overruled.

Definition of Adverse Employment Action

In Issue Four, the City contends that the trial court should have included its definition of “adverse employment action.” We have already found that the evidence is legally sufficient to support the jury’s finding that the City retaliated against Draper by constructively discharging him because he filed a workers’ compensation claim in good faith. That finding would independently support the jury’s affirmative answer to Question One. Even assuming error, the trial court’s refusal to submit this portion of the City’s requested instruction is harmless. See Tex.R.App.P . 44.1(a)(1). Issue Four is overruled.

Failing to Restrict Constructive Discharge to Action Occurring in the Workplace

Finally, in Issue Five, the City argues that the trial court erred in excluding the word “workplace” from its instruction pertaining to constructive discharge, and thus, the jury was free to imagine conditions occurring away from the workplace which compelled Draper to resign. We disagree. The jury was generally instructed to answer the submitted questions based upon the evidence it heard during the trial.¹¹ In the absence of evidence to the contrary, we presume the jury followed the court’s instructions and considered only the evidence properly before it. See Turner, Collie & Braden, Inc. v. Brookhollow, Inc., 642 S.W.2d 160, 167 (Tex.1982); Household Credit Services, Inc. v. Driscol, 989 S.W.2d 72, 96 (Tex.App.-El Paso 1998, pet. denied). Because the instruction required the jury to consider only the intolerable conditions created by the employer, we fail to perceive how the jury could have been misled or confused by the instruction or how it could have answered the question based upon its imaginings of non-workplace conditions created by someone other than the City. Consequently, we find that the trial court did not abuse its discretion in submitting the constructive discharge instruction without inclusion of the word “workplace.”¹² Issue Five is overruled.

*10 Having overruled all six issues presented on appeal, we affirm the judgment of the trial court.

	Footnotes
1		Because we overrule the City’s contentions that the trial court committed error in the charge, we measure sufficiency of the evidence by Question One and its related instructions as submitted. See Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex.2000).
2		The constructive discharge doctrine, which originated in unfair labor practice cases, is a legal substitute for the discharge element in discrimination cases under Title VII of the Civil Rights Act of 1964. University of Texas Medical Branch at Galveston v. Hohman, 6 S.W.3d 767 (Tex.App.-Houston [1st Dist.] 1999, pet. dism’d w.o.j.), citing Junior v. Texaco, Inc., 688 F.2d 377, 378 n. 3 (5th Cir.1982). Further, constructive discharge has either expressly or impliedly been found to satisfy the discharge requirement of various other statutes prohibiting the discharge of employees, including Section 451.001. See, e.g., City of Beaumont v. Bouillion, 896 S.W.2d 143, 145 (Tex.1995)(court presumed constructive discharge would violate Texas Whistleblower Act prohibition against “suspension, discharge or discrimination” against an employee for reporting a violation of the law, but ruled against employee on other grounds); University of Texas Medical Branch at Galveston v. Hohman, 6 S.W.3d 767, 773 (Tex.App.-Houston [1st Dist.] 1999, pet. dism’d w.o.j.) (constructive discharge is sufficient to meet the “termination” requirement of the Texas Whistleblower Act); Passons v. University of Texas at Austin, 969 S.W.2d 560, 562 (Tex.App.-Austin 1998, no pet.)(court equated “constructive discharge” with the “discharge” element of Tex.Lab.Code Ann. § 21.051 (Vernon 1996)); Davila v. Lockwood, 933 S.W.2d 628, 630 (Tex.App.-Corpus Christi 1996, no pet.)(court assumed constructive discharge satisfied discharge requirement under § 451.001 prohibiting discharge for filing worker’s compensation claims). See also Nguyen v. Technical & Scientific Application, Inc., 981 S.W.2d 900, 901-02 (Tex.App.-Houston [1st Dist.] 1998, no pet.)(holding that the Sabine Pilot exception to the employment at-will doctrine applies to employees who are constructively discharged for the sole reason that they refuse to commit a crime).
3		As it turned out, Warling had kept the report of injury form. After Draper “hounded” Warling regarding his claim of having thrown away the report, Warling found the report while cleaning out his desk on some later date and turned it over to Draper to help him resolve some questions regarding his workers’ compensation claim.
4		Since the time Draper filed his initial report of injury, the administration of the Fire Department has changed. At the time of trial, Johns was the Fire Chief. When asked to explain the administration of the Fire Department, Chief Johns explained that there are two assistant chiefs below him, Gregersen and McGinty. Gregersen supervises the operations portion of the department which has three chiefs, one for each of the three operational shifts. Those chiefs are Alan Burmis, Roberto Rivera, and Robert Vance. When Draper’s injury occurred and during the next several months, however, Johns was an Assistant Fire Chief to Fire Chief Mehl. Gregersen was a deputy chief in charge of B shift, which is the shift to which Draper was assigned.
5		The diagnosis was made by James M. Madsen, M.D., MPH, of Johns Hopkins University.
6		Firefighters refer to the self-contained breathing apparatus by its brand name, “Scott.”
7		The tasteless comment had apparent reference not only to Draper’s neurological condition but his participation in boxing in years past.
8		Warling initiated the reprimand and it is signed by Gregersen, Johns, and Mehl.
9		At oral argument, counsel for the City asked what an employer could do to control the attitude of its employees regarding another employee’s claim of an on-the-job injury. While an employer may have difficulty controlling the attitude of its rank-and-file employees, an employer can and must control the actions of its highest ranking officers and supervisors or suffer the legal consequences as the City did here. The recitation of evidence pertaining to the negative comments made by non-supervisory personnel is but a small part of the evidence showing the conditions in which Draper had to work after reporting his injury. We find the evidence appropriate to consider in this case because the attitude of the rank-and-file employees is but a reflection of that exhibited by management.
10		See State Bar of Texas, Texas Pattern Jury Charges, PJC 107.9 and 107.10 (2000).
11		The first sentence of the court’s charge states: “This case is submitted to you by asking questions about the facts, which you must decide from the evidence you have heard in this trial.” The trial court also instructed the jury that: “In arriving at your answers, consider only the evidence introduced here under oath and such exhibits, if any, as have been introduced for your consideration under the rulings of the Court, that is, what you have seen and heard in this courtroom together with the law as given you by the Court. In your deliberations, you will not consider or discuss anything that is not represented by the evidence in this case.”
12		Our opinion should not be construed as necessarily agreeing with the City that the definition should always be restricted to conditions existing at the workplace. While it is generally true that the evidence is going to focus on workplace conditions, we are not convinced that a jury would be prohibited from considering evidence of non-workplace conditions in determining the issue of constructive discharge if it is shown that the employer created those conditions.