Court of Appeals of Texas, Dallas.

Sarah THOMAS, Appellant,

v.

YOPLAIT USA, INC. and General Mills, Inc., Appellees.

No. 05-90-00912-CV.

|

September 12, 1991

Before BAKER, BURNETT and WHITTINGTON, JJ.

O P I N I O N

BURNETT, Justice.

*1 Sarah Thomas appeals from an adverse judgment entered in the wrongful discharge suit she brought against her former employer Yoplait USA, Inc. and its parent corporation, General Mills, Inc. (Yoplait). In seven points of error, Thomas asserts that the trial court erred (1) in failing to submit a tendered jury instruction and question, (2) in admitting a memo sent by her supervisor to the production manager, and (3) in entering judgment for Yoplait because the jury’s verdict is against the great weight and preponderance of the evidence. We overrule Thomas’s points of error. We affirm the trial court’s judgment.

FACTS

Yoplait manufactures and packages yogurt. Thomas worked the second shift as part of an assembly line team. This team worked a machine called an ERCA machine. This machine consumes 300 pound rolls of plastic and liding at one end to form the yogurt cups. After the machine fills the cups, it packs them into boxes. As a part of the team work, Thomas loaded the plastic and box forms into the machine as well as performing various clean-up tasks associated with the process. Another function was to move the boxes from one conveyor belt to another where they are sealed with glue or tape, and then placed on pallets by another worker. Yoplait requires shift rotation between team members at one hour increments.

Thomas suffered a back injury while loading a roll of plastic into the machine. Her treating physician excused her from work as a result of this injury. Thomas hired a lawyer and filed a workers’ compensation claim thirty days after the accident.

Thomas returned to work at Yoplait. Yoplait required her to do bending and lifting on the job which aggravated her back injury. Two days after returning to work, her doctor excused her from work again for one week. Her doctor then released Thomas for light duty work again for two weeks. This time, according to Thomas, Yoplait trained her on a new machine that required more bending and lifting than before. Once again, the requirements of work aggravated her back injury. She tried one more time to return on light duty status. Her supervisor informed her that Yoplait had no light duty work available. He told her not to come back unless she could perform her job one hundred percent.

She went into physical therapy for about six weeks. She then returned to work under a full release from her doctor. She testified that the doctor released her to full duty to test her capabilities. She testified that she told this to her supervisor when she returned to work. Tony Kent, the ERCA technician and team leader, rotated Thomas from one position to another. She worked eight minutes at the second position before telling Kent that she could not continue. Kent placed her back at the first position. Her supervisor then came out to the floor and told Thomas to return to the second position. She said she could not resume that position because of her back. Her supervisor told her to return to that position or clock out.

*2 Thomas clocked out. She did not contact Yoplait the next day. She testified that she returned to the doctor to get an excuse from work. Her supervisor sent a memo that night to the production manager detailing the incident. The next day, the supervisor sent another memo to the production manager stating that he received no communication from Thomas about the previous night’s incident. He recommended that Yoplait notify her in writing of her dismissal.

The next morning, Yoplait’s controller sent a telegram to Thomas terminating her employment for “[her] refusal to perform [her] job and other violations of company rules.” The telegram informed Thomas that she could pick up her paycheck that day. She did not protest at that time. She picked up her paycheck the next day. Prior to her termination, Thomas and Yoplait’s insurance carrier received notice of a scheduled prehearing conference on her workers’ compensation claim. Two years later, Thomas brought this wrongful discharge suit under the Texas Workers’ Compensation Act article 8307c.

JURY CHARGE

1. Instruction Request

In her first point of error, Thomas asserts that the trial court erred by refusing to submit to the jury her tendered instruction number two. She requested the following instruction:

“The worker is not required to prove that he/she was discharged or discriminated against solely because of the workers’ compensation claim.”

In a lawsuit under article 8307c, Thomas must show a causal connection between her termination and her claim for workers’ compensation benefits. Hughes Tool Co. v. Richards, 624 S.W.2d 598, 600 (Tex. App.-Houston [14th Dist.] 1981, writ ref’d n.r.e.), cert. denied, 456 U.S. 991. The law does not require Thomas to prove that the workers’ compensation claim was the sole reason for her discharge, but that it was a determining factor. Azar Nut Co. v. Caille, 720 S.W.2d 685, 687 (Tex. App.-El Paso 1986), aff’d, 734 S.W.2d 667.

The trial court’s failure to submit a definition or instruction to the jury is not a ground for reversal unless the complaining party tendered in writing the definition or instruction in substantially correct form. Tex. R. Civ. P. 278. The Azar Nut court approved an instruction that “the claimant did not have to prove that her discharge was solely because of the workers’ compensation claim but that her proceeding under the workers’ compensation act was a determining factor in her discharge.” Azar Nut, 720 S.W.2d at 687. Thomas only submitted part of this instruction to the trial court. Thomas did not submit the instruction in substantially correct form. Azar Nut, 720 S.W.2d at 687; Tex. R. Civ. P. 278. The trial court did not err by refusing Thomas’s tendered instruction number two. We overrule Thomas’s first point of error.

2. Question Request

In her second point of error, Thomas asserts that the trial court erred in refusing to submit her amended requested question number one. Her amended requested question number one stated:

*3 Did Yoplait USA, Inc. and General Mills, Inc. discharge Sarah Thomas, in violation of the Texas Workers’ Compensation Act?

The Texas Workers’ Compensation Act provides that no person may discharge or in any other manner discriminate against any employee, in whole or in part, because the employee has in good faith filed a claim, hired a lawyer to represent him in a claim, instituted, or caused to be instituted in good faith, any proceeding under the Texas Workers’ Compensation Act, or has testified or is about to testify in any such proceeding.”

(emphasis added).

The judge submitted this question without the phrase “in whole or in part”.

In issuing explanatory instructions, the trial court has broad discretion in determining the sufficiency of such explanation. K-Mart Corp. Store No. 7441 v. Trotti, 677 S.W.2d 632, 636 (Tex. App.-Houston [1st Dist.] 1984), ref’d n.r.e., 686 S.W.2d 593 (1985) (per curiam). The law only requires that the trial court explain any legal or technical terms to the jury. We may not substitute our judgment for that of the trial court. Rather, we decide only whether the trial court’s decision was arbitrary or unreasonable. K-Mart, 677 S.W.2d at 636.

In this case, the jury instruction submitted tracked the statute. See Tex. Rev. Civ. Stat. Ann. art. 8307c (Vernon Supp. 1989). Furthermore, this instruction tracked the Texas Pattern Jury Charge. See 2 Texas Pattern Jury Charges 29.01 (State Bar of Texas 1989) (Workers’ Compensation). The trial court did not abuse its discretion by refusing to submit Thomas’s amended requested question number one. We overrule Thomas’s second point of error.

DEFENDANT’S EXHIBIT THREE

In her next four points of error, Thomas asserts that the trial court erred in admitting defendant’s exhibit three. This exhibit is a memo from Thomas’s supervisor to the production manager. It contains statements purportedly made by Tony Kent, Thomas’s team leader on the assembly line. In her third point of error, Thomas asserts that the trial court erred because Yoplait did not identify the “witness” in the memo, Tony Kent, as a person with knowledge of relevant facts. In her fourth point of error, Thomas asserts that the trial court erred because the memo contained inadmissable hearsay. In her fifth and sixth points of error, Thomas asserts that the admission of the memo denied her right to confrontation and cross examination, and so severely prejudiced her case that she did not receive a fair trial.

We assume, without deciding, that the trial court erred by admitting the memo. We examine the entire record to determine whether the testimony that should have been excluded controlled the judgment. See Pittman v. Baladez, 158 Tex. 372, 312 S.W.2d 210, 216 (1958). Thomas must show that the error was reasonably calculated to cause and probably did cause rendition of an improper judgment. Gee v. Liberty Mutual Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989); Tex. R. App. P. 81(b)(1). If the testimony or evidence in question is cumulative of other testimony or evidence that the trial court properly admitted at trial, the error is harmless. See McKinney v. National Union Fire Ins. Co., 772 S.W.2d 72, 76 (Tex. 1989).

*4 The trial court admitted the memo with a limiting instruction to the jury that the memo was not admitted for the truth of the matters asserted therein. The controller testified that he relied on the information in the memo as a basis for his decision to terminate Thomas. Thomas objected to the memo on hearsay grounds. The pertinent part of the memo stated:

Tony Kent, ERCA Tech and team leader, informed me that Sarah said her back still hurt and that she couldn’t keep up... At or about 10:15 P.M., Tony directed a team rotation which would have moved Sarah from S.W.F. to Case Sealer. She refused to make the rotation and did not show up at the Case Sealer position. Tony came to me and informed me of the situation.

(emphasis added)

Before the introduction of the memo, Thomas testified to the events during the shift. She said she told Tony that she was really hurting and could not last for two more minutes at that position. Tony moved her back to the previous position. She testified that her supervisor came out to the floor and told her to go back to the second position. She said she told him that she was hurting real bad and that she had just done that position.

The memo is cumulative of Thomas’s testimony. Any error in admitting the memo is harmless considering Thomas’s own testimony. McKinney, 772 S.W.2d at 76. We overrule Thomas’s third, fourth, fifth and sixth points of error.

FACTUAL SUFFICIENCY OF THE EVIDENCE

In her seventh point of error, Thomas asserts that the trial court erred in entering judgment for Yoplait because the jury’s response to question one was against the great weight and preponderance of the evidence. Jury question one asked:

“Did Yoplait USA, Inc. and General Mills, Inc. discharge Sarah Thomas in violation of the Texas Workers’ Compensation Act?”

The jury, in an 11-to-1 decision, answered no and did not answer the remaining damage issues. When a party claims a jury finding is against the great weight and preponderance of the evidence, we must review all of the evidence. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). We may set aside the verdict only if it is so contrary to the overwhelming weight of the evidence that it is clearly wrong and unjust. See Pool v. Ford Motor Co., 715 S.W.2d 629, 633-34 (Tex. 1986); Dyson v. Olin Corp., 692 S.W.2d 456, 457 (Tex. 1985).

Under article 8307c, Thomas had the burden to establish a causal connection between her termination and her claim for workers’ compensation benefits. Hughes Tool, 624 S.W.2d at 600. The adverse jury answer reflects her failure to carry her burden of proof. The jury, as exclusive trier of the facts, has the sole responsibility to evaluate witnesses, their credibility and the weight of their testimony. Horvath v. Baylor Univ. Medical Center, 704 S.W.2d 866, 869 (Tex. App.-Dallas 1985, no writ). When we consider great weight points complaining of a jury’s failure to find a fact, we should be mindful the party with the burden of proof did not convince the jury by a preponderance of the evidence. We may not substitute our judgment for that of the jury’s although some evidence supports Thomas’s position. The evidence warrants reversal only if the great weight of the evidence supports an affirmative answer. Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex. 1988).

*5 The record reflects a contested trial. The evidence shows that the parties presented conflicting evidence on the main fact issue, namely, the reason for Thomas’s termination. The jury resolved the issue adversely to Thomas. We may not substitute our judgment for that of the jury. We must leave the jury’s decision undisturbed when the evidence conflicts. Harco Nat’l Ins. Co. v. Villanueve, 765 S.W.2d 809, 810 (Tex. App.-Dallas 1988, writ denied). We overrule Thomas’s seventh point of error.

We affirm the trial court’s judgment.

Do Not Publish

Tex. R. App. P. 90