Court of Appeals of Texas, San Antonio.
The CITY OF LAREDO, Texas, Appellant,
v.
Jesus G. MOLINA, Appellee.
No. 04-01-00073-CV.
|
Nov. 30, 2001.
From the 111th Judicial District Court, Webb County, Texas, Trial Court No. 96-CVT-001556-D2; Raul Vasquez, Judge Presiding.
TOM RICKHOFF, CATHERINE STONE, and SARAH B. DUNCAN, JJ. (concurring in the judgment only).
Opinion
TOM RICKHOFF, Justice.
*1 The City of Laredo (“the City”) was found liable, after a trial by jury, for discriminating against Jesus Molina (“Molina”) when he filed a workers’ compensation claim. On appeal, the City asserts two points of error. In its first point, the City contends that the evidence in this case is both legally and factually insufficient to support a finding that it discriminated against or discharged Molina in violation of the Texas Workers’ Compensation Act. In its second point, the City asserts that there is legally and factually insufficient evidence to support the jury’s award of past mental anguish damages. We find that because the evidence is sufficient to support the jury’s finding that the City violated the Texas Workers’ Compensation Act, the trial court’s judgment should be affirmed. However, we find the evidence to be legally insufficient to support the award of past mental anguish damages, and we reverse on that issue.
Statement of Facts
On July 6, 1994, Jesus Molina, a sixteen year veteran with the City of Laredo Fire Department, was injured in the line of duty. Although first diagnosed with only burn injuries, subsequent examinations revealed that he suffered from an additional injury to his neck. Two days after the accident, Molina filed an “Employer’s First Report of Injury or Illness” to notify his employer and the Workers’ Compensation Commission of his injuries. Because Molina’s injuries were severe, he was not able to return to work for the next five months.
During these months of rehabilitation, Molina first received medical care from Dr. Jesus Aguirre; however, he was later referred to Dr. A.R. Garza-Vale, for treatment. After an initial evaluation, Dr. Garza-Vale designed a rehabilitation program for Molina, which included traction and ultrasound treatments, and he recommended that Molina undergo back surgery. Molina, however, refused surgery as an option and he again changed his physician to Dr. John H’Lavacik. After seeing Dr. H’Lavacik for approximately two months, the doctor released Molina to return to a light duty position within the fire department.
When Molina returned to work, Deputy Fire Chief R.G. Sepulveda temporarily assigned him to the fire inspector’s office. Approximately a week later, Molina approached Sepulveda to inquire about obtaining a permanent position in that office; Sepulveda, however, informed him that because of his injuries, he could not remain in that position permanently. Molina then went to Fire Chief Mike Perez to pursue his inquiry; and at that time, Perez told him that he needed to submit a report from his doctor, detailing any medical conditions that would impede his ability to fully return to work. Molina eventually obtained a release stating that he could not jump, lift, or “run[ ] hard” and that his “neck problem [would] take time to heal.” After Molina submitted the doctor’s release, Perez took that document to personnel director Florencio Pena, to discuss Molina’s ability to continue employment with the fire department. Following the consultation, Perez informed Molina that the Americans with Disabilities Act (“ADA”) required his retirement. Accordingly, on December 17, 1994, Molina retired, which triggered the receipt of benefits under a retirement package, administered by the Fireman’s Relief and Retirement Fund (“the Retirement Fund”).
*2 Molina later discovered that the ADA did not mandate his retirement and that misrepresentations were made to him regarding his retirement plan and benefits. Seeking a remedy for the City’s actions, Molina filed a lawsuit in state court, which was subsequently removed to federal court. In his complaint, Molina alleged that the City failed to accommodate his disability and forced him to retire because he filed a workers’ compensation claim, in violation of the Americans with Disabilities Act (“ADA”) and the Texas Workers’ Compensation Act (“TWCA”). The federal court granted summary judgment on his ADA claims, and remanded his TWCA claims.
After the remand to state court, a two-day jury trial was held. Following the trial, the jury found that the City had violated the TWCA and it awarded Molina $150,000 in back pay, $275,000 in past mental anguish damages, and $275,000 in future mental anguish damages. After receiving the verdict, the City timely moved for a judgment notwithstanding the verdict. In ruling on that motion, the judge upheld the jury’s verdict, but found that there was “no evidence of probative force to sustain the jury’s finding of damages for future mental anguish,” and that the damages award was “statutorily capped at $250,000.” The City then filed this appeal challenging the legal and factual sufficiency of the jury’s finding of liability and past mental anguish damages.
Standard of Review
We review appellant’s challenge to the legal and factual sufficiency of the evidence under the traditional standards. See Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.1983) (legal sufficiency); Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex.1987) (legal sufficiency); Lofton v. Texas Brine Corp., 720 S.W.2d 804, 805 (Tex.1986) (factual sufficiency); Cain v. Bain, 709 S.W .2d 175, 176 (Tex.1986) (factual sufficiency).
Discussion
A. Jury’s Finding of a Violation of the Texas Workers’ Compensation Act
In its first point of error, the City asserts that the evidence is neither factually nor legally sufficient to support the jury’s finding that it violated the TWCA. More specifically, the City contends that there is no evidence demonstrating that Molina suffered from an adverse employment action. In addition, the City maintains that there is insufficient evidence to establish a causal connection between the alleged adverse job action and the filing of his claim. Indeed, Molina filed his suit relying on the TWCA, which provides that,
[a] person may not discharge or 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.
Tex. Lab.Code Ann. § 451.001(1) (Vernon 1996). The Legislature enacted this law to protect employees who are entitled to benefits under the workers’ compensation law and to prevent employers from firing them for taking steps to collect benefits. Carnation Co. v. Borner, 610 S.W.2d 450, 453 (Tex.1980). An employee claiming discharge or discrimination, in violation of Section 451.001, bears the burden of demonstrating a causal link between the filing of his compensation claim and the alleged wrongful act of discrimination or discharge. Castor v. Laredo Cmty. College, 963 S.W.2d 783, 785 (Tex.App.-San Antonio 1998, no pet.); Borden, Inc. v. Guerra, 860 S.W.2d 515, 522 (Tex.App.-Corpus Christi 1993, writ dism’d by agr.). In particular, a claimant must show that “[his] protected conduct [was] such that, without it, the employer’s prohibited conduct would not have occurred when it did.” Continental Coffee Prods. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996)(quoting Texas Dep’t. of Human Servs. v. Hinds, 904 S.W.2d 629 (Tex.1995)).
Adverse Employment Action
*3 Although the particular practices actionable under Section 451.001 are not detailed in the statute itself, in Burlington Industries, Inc. v. Ellerth the United States Supreme Court defined such conduct, in the context of federal employment discrimination law, noting that,
[a] tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.
Burlington Indus. v. Ellerth, 524 U.S. 742, 760, 118 S.Ct. 2257 (1998). The court also observed that “[a] tangible employment action, in most cases, inflicts direct economic harm.” Id.
In this case, there is evidence to show that Molina was deceived about his retirement option. Molina testified that after he recovered from his injury, he obtained a medical release specifying restrictions on his ability to jump, lift, and run. Molina showed this release to Deputy Chief Sepulveda, who was in charge of determining job assignments, and he asked to be placed permanently in a light duty station. Sepulveda, however, told Molina that because of the extent of his injuries and the doctor’s restrictions, he could not continue as a fire department employee. Molina then went to discuss his situation with Fire Chief Perez. Perez explained that he could not reassign him without first consulting with Florencio Pena, the personnel director of the City. After discussing the issue with Pena, Perez told Molina that the ADA mandated his retirement. Perez informed him, however, that because he was injured on the job, he would receive a full pension. The following day, Molina completed the necessary paperwork for his retirement. Molina explained to the jury, however, that because he was not familiar with the ADA, he did not realize that it did not necessitate his retirement.
In addition, Molina’s testimony shows that there were other firefighters with medical restrictions who were permitted to work in light duty positions for extended periods of time without first obtaining full medical releases. Molina pointed out that Captain Amado Pena twice underwent heart bypass surgery and was unable to continue working in the line of duty, but he was permitted to work as a fire inspector for almost twenty-five years. Molina also testified that Captain Quintanilla, who was not even injured while on the job, was allowed to spend a year or two in light duty before returning to full duty. Further, testimony from Sergio Saavedra, Steven Michael Elliott, and Alejandro Erasmo Quintanilla, other department employees, shows that they were able to obtain modified duty assignments while they recuperated from their on-the-job injuries. Certainly, this evidence supports a finding that Molina could have remained with the fire department, but for the incorrect information he was given regarding his option of retiring. We conclude, therefore, that the evidence is legally sufficient to show that an adverse job action occurred.
*4 However, the City insists that the evidence is factually insufficient. In particular, the City points to evidence which reveals that because of his injury, Molina was no longer physically able to fight fires, a requirement demanded of all fire department staff. Deputy Chief Sepulveda testified that injured firefighters can be assigned to modified or light duty positions, but those employees can only be on modified duty for sixty days, after which they must either return to “injury duty” or take “injury leave.” Sepulveda also stated that although the light duty assignments are less demanding, every employee in the fire department is expected to be able to fight fires when called upon to do so. Further, any injured employee with a temporary assignment is expected to eventually obtain a full release so that he can return to active duty. Finally, although testimony from Saavedra, Elliott, and Quintanilla, shows that they were injured on the job and assigned to a modified duty station for an extended period, they eventually received full medical releases and returned to their regular duties. In this case, however, Molina only received a partial medical release from his chiropractor, which included restrictions on his ability to jump, lift heavy objects, and run. In fact, the testimony from Dr. David Gibson, who treated him in 1995, reveals that even at that time Molina could not be involved in activities that required heavy lifting, jumping, or “sudden jarring motions,” and so he was essentially precluded from pursuing his career as a firefighter.
Here, it is clear that there is conflicting evidence on whether Molina was coerced into retirement or whether his injury and the fire department policy prevented his continued employment as a firefighter. It is within the sole province of the jury, as the trier of fact, to determine the credibility of the witnesses and the weight to be given to their testimony. See Gorges Foodservice, Inc. v. Huerta, 964 S.W.2d 656, 666 (Tex.App.-Corpus Christi 1998, no pet.); Garcia v. Dependable Shell Core Mach., Inc., 783 S.W.2d 246, 248 (Tex.App.-Corpus Christi 1989, no writ). In resolving contradictions and conflicts, the jury may choose to believe all, part, or none of the testimony of any one witness in arriving at the finding it concludes was the most reasonable under the evidence. See Garcia, 783 S.W.2d at 248. We may not substitute our judgment for that of the trier of fact, even though, after reviewing the evidence, we would have reached a different conclusion. See Walter Baxter Seed Co. v. Rivera, 677 S.W.2d 241, 245 (Tex.App.-Corpus Christi 1984, writ ref’d n.r.e.). In this case, the jury certainly could have believed Molina’s testimony that he was coerced into retiring and that the City made misrepresentations regarding his retirement benefits. Further, it cannot be disputed Molina’s retirement resulted in a significant change in his pay and caused him direct economic harm. We conclude the evidence is factually sufficient to support a finding that his forced retirement was an adverse job action. The jury’s finding on this issue will, therefore, not be disturbed.
Causal Link
*5 For Molina to establish a causal link, he is not required to show that the filing of his workers’ compensation claim was the sole reason for the discriminatory act, rather he must establish that it was a determining factor only. Castor, 963 S.W.2d at 785; Investment Props. Mgmt. Inc. v. Montes, 821 S.W.2d 691, 694 (Tex.App.-El Paso 1991, no writ). The causal connection may be established by either direct evidence or circumstantial evidence and those reasonable inferences arising from such evidence. Castor, 963 S.W.2d at 785. Texas courts have recognized several indicia relevant to make a circumstantial showing that a causal link existed between the employee’s protected activity and the employer’s discriminatory act. In particular, a court may consider the following:
(1) knowledge of the compensation claim by those making the decision on termination; (2) expression of a negative attitude toward the employee’s injured condition; (3) failure to adhere to established company policies; (4) discriminatory treatment in comparison to similarly situated employees; and (5) evidence that stated the reason for discharge was false.
Continental Coffee Prods., 937 S.W.2d at 451.
In this case, there is no direct evidence of retaliation and so Molina relied on circumstantial evidence to prove his case. And in viewing the evidence in a light most favorable to the verdict, we believe Molina presented enough circumstantial evidence to withstand a legal sufficiency challenge. In fact, Molina submitted enough evidence to address most of the factors outlined by the Texas Supreme Court in Continental Coffee Products. For example, there is no dispute that the fire department was aware of his workers’ compensation claim. The record shows that as a standard policy, when a firefighter is injured on the job, the department initiates the workers’ compensation process on his behalf. In fact, on July 8, 1994, two days after Molina’s injury, the fire department completed a report documenting his injury, and it was sent to the Texas Workers’ Compensation Commission. In addition, Molina testified that in October 1994, he informed the fire department of his desire to change the treating physician on his workers’ compensation application, and he discussed this change specifically with Deputy Chief Sepulveda. The evidence also shows that Molina received some negative treatment from his supervisor. Molina testified that when he went to Sepulveda, to discuss the change in physicians, the deputy chief apparently did not believe that he had been seriously injured. Sepulveda also criticized his decision to change his physician to a chiropractor and told Molina that the City “did not accept chiropractors.”
Further, there is evidence demonstrating that Molina was treated differently from similarly situated employees. When Molina asked to be permanently assigned to the fire inspector’s office, Sepulveda told him that he could not remain in that position because he had not received a full work release. However, the record shows that Captain Amado Pena was allowed to work as a fire inspector for almost twenty-five years even though his heart condition prevented him from being able to fight fires, and Captain Quintanilla was allowed to spend a year or two in light duty position before returning to his regular position. Further, Saavedra and Elliott testified that they were able to obtain modified duty assignments for several months while they recuperated from their on the job injuries.
*6 Finally, there is evidence that the reason the City gave to Molina requiring his retirement was false. He was also informed that because he was injured on the job, he would receive a particular retirement plan, which included the receipt of a full pension. Molina learned, however, that the ADA did not mandate his retirement, and that he would not receive the benefits he was promised. After becoming aware of this information, Molina complained to the Retirement Fund Committee. At the hearing held to discuss his grievance, Molina testified that he could continue working in the fire department as an inspector, but he was forced to retire because the ADA required him to do so. In response, Deputy Chief Sepulveda told the committee that Molina’s retirement “actually helped the City because they were saving money.” We find, after reviewing the evidence that supports the five factors articulated in Continental Coffee Products, that the trial record provides more than a scintilla of evidence to support the jury’s finding of a causal link between Molina’s workers’ compensation claim and his forced retirement.
Further, in viewing the evidence in a neutral light, we find that there is factually sufficient evidence to support the jury’s finding of causation because there were various testimonial contradictions the jury was entitled to weigh and decide in Molina’s favor. First, there is conflicting evidence relating to Molina’s contention that he was treated differently from the other firefighters when he was not permanently assigned to a light duty position. For example, testimony from Deputy Chief Sepulveda and other employees within the fire department shows that light duty assignments were merely temporary positions. The record also reveals that to be assigned to any position within the Fire Department an employee must have the physical capability of performing the essential duty of a firefighter, which is to fight fires. Moreover, Molina testified that at the time of his retirement, he had not secured a full release from his doctor, he had informed the department that his injury required medical care for the rest of his life, and he was told by one of his doctors that he could never fight fires again.
Second, there is evidence that it was common for fire department employees to file workers’ compensation claims and that no other employee had any difficulty submitting their claims. Saaverda, Elliott, and Quintanilla testified at trial that they previously filed for workers’ compensation, and the fire department never interfered or harassed them for doing so. In fact, Molina himself testified that he had filed two workers’ compensation claims, previous to his July 1994 filing, and that he never had any trouble in pursuing those claims. Molina stated further that even when he applied for compensation in 1994 the department did not interfere with his application.
Third, there is a conflict with Molina’s and Sepulveda’s testimony regarding what he was told about changing his doctor. Although Molina told the jury that Sepulveda expressed a negative attitude towards him regarding his injury, Sepulveda disputes that recollection of the facts. Sepulveda testified that he never told Molina the City would not approve of him seeking treatment from a chiropractor. Rather, he told Molina that if he was in his position, he would try to go to a specialist in San Antonio instead of a chiropractor. Finally, there is some evidence in the record that there is a significant time lapse between the date Molina’s claim was filed, on July 6, 1994, and the date of his retirement, on December 17, 1994.
*7 Despite these contradictions and conflicts of evidence in the record, we find that there is ample circumstantial evidence from which the jury could have reasonably inferred that Molina was forced to retire, at least in part, as a result of the filing of his workers’ compensation claim. We conclude, therefore, that there is factually sufficient evidence of a causal connection between Molina’s compensation claim and his eventual retirement and that the jury’s determination of a causal link is not so weak that it is clearly wrong and manifestly unjust. Accordingly, we overrule the City’s first point of error.
B. Jury’s Award of Mental Anguish Damages
In its second point of error, the City argues that the evidence is legally and factually insufficient to support the jury’s award of past mental anguish damages. Damages for mental anguish may be recovered for a violation of Section 451.001 of the Texas Labor Code. See Tex. Lab.Code Ann. § 451.002(a) (Vernon 1996). The term “mental anguish” implies a high degree of mental pain and distress and can be defined as “sensation of pain resulting from such painful emotions such as grief, severe disappointment, indignation, wounded pride, shame, despair or public humiliation, or a combination of any of these.” Texas Animal Health Comm’n v. Garza, 27 S.W.3d 54, 63 (Tex.App.-San Antonio 2000, no pet.); Automobile Ins. Co. of Hartford, Conn. v. Davila, 805 S.W.2d 897, 906 (Tex.App.-Corpus Christi 1991, writ denied) (citations omitted). Therefore, to recover mental anguish damages, a plaintiff must offer “direct evidence of the nature, duration, and severity of mental anguish, thus establishing a substantial disruption in the plaintiff[‘s] daily routine” or other evidence of “ ‘a high degree of mental pain and distress that is more than mere worry, anxiety, vexation, embarrassment, or anger.’ “ Saenz v. Fidelity & Guar. Ins. Underwriters, 925 S.W.2d 607, 614 (Tex.1996); Parkway Co. v.. Woodruff, 901 S.W.2d 434, 444 (Tex.1995) (quoting J.B. Custom Design & Bldg. v. Clawson, 794 S.W.2d 38, 43 (Tex.App.-Houston [1st Dist.] 1990, no writ)).
To support his claim that he suffered past mental anguish, Molina relies on his testimony and that of his wife. Molina testified that after he retired, he was forced to become the primary care taker for his daughter, and his wife was forced to return to the workforce. According to Molina, when his wife gave birth to their daughter, the plan was for her to stay at home full time. The Molinas, however, abandoned this plan when he retired because his wife was able to earn more money, and it was necessary for him to assume the domestic duties. Next, Mrs. Molina testified about Molina’s mental condition, stating that after her husband’s retirement, he angered “very easily,” and “he was mad” all of the time. She explained that Molina also withdrew from interacting with the family. In particular, Mrs. Molina testified that,
*8 [Molina] took his own bedroom, and there was, well, a separation right there, and to me it was hard because I had a newly born child and a husband that was acting terribly, and-and then he separated himself from us.
Mrs. Molina also told the jury that when she went to Molina’s room one evening, to see why he would not come and sleep in their room, she observed that, “[h]e was just like a little boy, crying. His pillow was all wet. He was just crying like a child.”
This testimony, from both Molina and his wife, clearly shows that he felt anger and frustration because he was forced to retire. However, nowhere in the record is there evidence that Molina sought counseling or medical treatment for his mental distress. Further, there is no evidence that because of his mental anguish, he could not find a job or take care of his daughter. The record simply fails to show that Molina suffered from mental distress on a level severe enough to disrupt his daily routine. Although the testimony provided by Molina and his wife demonstrates that there was some emotional impact on Molina, it fails to show the nature, duration, and severity of the mental pain and distress that he suffered from because of the City’s discriminatory conduct. While the distress and disappointment that Molina experienced should not be minimized, “the loss of [his] job alone cannot be said to be ‘beyond the vicissitudes of daily life.’ “ See Parkway, 901 S.W.2d at 444 n. 10. We find, therefore, that the evidence is legally insufficient to support an award of past mental anguish damages. See Formosa Plastics Corp. v. Presidio Engineers & Contractors, Inc., 960 S.W.2d 41, 48 (Tex.1998); Saenz, 925 S.W.2d at 614. The City’s second point is therefore sustained.
Conclusion
In sum, we find that there is legally and factually sufficient evidence to support the judgment that the City violated the Texas Workers’ Compensation Act, and so the trial court’s finding of liability and its award of $150,000 in back pay is affirmed. However, because there is legally insufficient evidence to support the jury’s award of mental anguish damages, we reverse and render in favor of the City on that issue.