Court of Appeals of Texas,

Houston (1st Dist.).

TEXAS DEPARTMENT OF CORRECTIONS, Appellant,

v.

Fred GIBSON, Appellee.

No. 01-91-00482-CV.

|

June 25, 1992.

Before SAM BASS, MIRABAL and O’CONNOR, JJ.

O P I N I O N

SAM BASS, Justice.

*1 Appellee, Gibson, was employed by Texas Department of Corrections (“TDC”). Gibson brought suit, asserting TDC acted in violation of TEX. REV. CIV. STAT. ANN. art. 8307c (Vernon Pamph. 1992). Gibson recovered $150,000.

We affirm.

Gibson was injured in October 1987. He led a five-member team to a shower area to remove an inmate who was refusing to cooperate with corrections officers. Gibson slipped on a wet floor; one of the other officers fell and landed on him, hurting his neck. Surgery followed, but the injuries never fully healed.

The institutional policy at the time permitted a corrections officer to work on limited duty assignments.

On December 21, 1988, TDC changed its institutional policy, effective January 1, 1989, so that limited duty assignments were no longer available. All corrections officers had to be physically able to perform any assignment to which they could be assigned. Gibson was terminated January 1, 1989.

When determining whether to sustain a “no evidence” point, we must consider only the evidence supporting the jury’s findings and the reasonable inferences which may be drawn from that evidence, disregarding all contrary evidence and inferences. King v. Bauer, 688 S.W.2d 845, 846 (Tex. 1985); K-Mart Corp. Store No. 7441 v. Trotti, 677 S.W.2d 632, 637 (Tex. App.-Houston [1st Dist.] 1984), writ denied per curiam, 686 S.W.2d 593 (Tex. 1985). We sustain a point of error complaining of insufficiency of the evidence only where review of all the evidence, both supportive and to the contrary, indicates that the jury’s finding is so contrary to the great weight and preponderance of the evidence as to be clearly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Glockzin v. Rhea, 760 S.W.2d 665, 666 (Tex. App.-Houston [1st Dist.] 1988, writ denied).

In its first point of error, TDC complains there was no evidence or, in the alternative, insufficient evidence, to support the jury’s finding that TDC terminated Gibson in violation of article 8307c.

Gibson testified supervisory personnel had at one time discussed with him the fact that he had hired an attorney or filed a workers’ compensation claim. When asked about the nature of that discussion, he replied, “Because-because the first-I was trying to go by the way, but consequently they wouldn’t do nothing about it and that’s when I had asked around for a-for actually-for legal advice because of it.” He later testified:

Q: After you find your worker’s compensation claim, Fred, did the attitude around the TDC change regarding you?

A: Yes, sir, because at first, you know, I actually wanted to go through it their was and Lieutenant Bradshaw gave me numbers to dial, you know, and I called some lady named Diane something and she switched me to somebody else and I kept getting the runaround and other people saying I’m going to get messed over and so that’s when I had actually resorted to ask legal matters about it[.]

*2 Once Gibson had initiated steps to institute a workers’ compensation claim, TDC was required to show good cause to support a subsequent decision to terminate him. Mid-South Bottling Co. v. Cigainero, 799 S.W.2d 385, 389 (Tex. App.-Texarkana 1990, no writ).

TDC asserts there was no article 8307c violation because Gibson was terminated in accordance with TDC’s generally applicable new policy under which all corrections officers had to be physically able to perform any assignment to which they could be assigned. Captain Brock testified the reason for the new policy was concern that if a limited duty employee became injured or reinjured on the job, the State might be liable for his injuries. Bradshaw gave testimony consistent with Brock’s, to the effect that the new policy originated at the Darrington Unit and came from the warden there. Bradshaw testified the reason for the new policy was concern for the safety of Gibson and similarly situated employees and for “the safety of the unit.”

The record shows Gibson was hurt on the job with TDC. TDC had a policy that said he could come back to work on limited duty assignment. He did work on such limited duty, and he filed a workers’ compensation claim. Plaintiff’s exhibit 7 was admitted without objection. Lt. Bradshaw testified it was a telex message dated January 18, 1989, from Viki Willard, a personnel clerk at TDC, to “all concerned.” The message stated in pertinent part that Fred Gibson was “terminated-placed on medical leave without pay due to workman’s comp, effective 1/1/89.” (Emphasis added.) TDC changed the policy to preclude limited duty assignment and, when Gibson was unable to obtain a medical release in accordance with the new policy, he was terminated. The jury was told about only two employees who lost their jobs when the new policy went into effect-Gibson and one other man.

TDC may to some extent have decided to fire Gibson out of genuine concern, in light of Gibson’s continuing impairment stemming from his injury, that Gibson was physically unable to do the job of Corrections Officer III without unduly compromising his own safety and the safety of those who worked with him. That concern, if present, still cannot insulate TDC from liability under article 8307c where Gibson’s workers’ compensation claim was also a factor in TDC’s decision to terminate him. Azar Nut Co. v. Caille, 720 S.W.2d 685, 687 (Tex. App.-El Paso 1986), aff’d 734 S.W.2d 667 (Tex. 1987); General Electric Co. v. Kunze, 747 S.W.2d 826, 830 (Tex. App.-Waco 1987, writ denied). The evidence was legally and factually sufficient to support the jury’s finding that it was indeed such a factor. Paragon Hotel Corp. v. Ramirez, 783 S.W.2d 654 (Tex. App.-El Paso 1990, writ denied); see also Hughes Tool Co. v. Richards, 624 S.W.2d 598 (Tex. App.-Houston [14th Dist.] 1981, writ ref’d n.r.e.), cert. denied, 456 U.S. 991 (1982). That Gibson was terminated in accordance with TDC’s new policy has limited probative value with respect to its article 8307c liability; the more appropriate inquiry is whether the employer adhered to established company policies in making its decision. Paragon, 783 S.W.2d at 658.

*3 The record contained evidence from which the jury could have concluded the change in policy originated within the Darrington Unit because of workers’ compensation claims in general or Gibson’s workers’ compensation claim in particular, or both; that what was facially a policy about duty assignments was in reality a policy about workers’ compensation; and that the real motivation for the change in policy was not TDC’s stated rationale, but rather was to facilitate discharge of employees with past or pending claims for workers’ compensation.

The evidence was legally and factually sufficient to make a circumstantial case that TDC terminated Gibson in violation of article 8307c. Paragon, 783 S.W.2d at 658. Direct evidence of the prohibited intent is not typically available, and is not required. Id.

TDC’s first point of error is overruled. Point of error two concerns legal and factual sufficiency of the evidence to support the $150,000 damages. The jury question inquired about loss of wages (past and future); loss of earning capacity; retirement and other employee benefits; and mental anguish, but it neither solicited nor elicited any apportionment of the damages among those several components.

Lt. Bradshaw testified about Gibson’s base pay; hazardous duty pay; longevity pay; overtime pay; and fringe benefits that were available of between $2100 and $2200 per month. The record shows that 24 months had passed between Gibson’s termination and the January 1991 trial.

The foregoing evidence was legally and factually sufficient to sustain a recovery of between $52,800 and $50,400 for loss of past wages. See A.J. Foyt Chevrolet, Inc. v. Jacobs, 578 S.W.2d 445, 447 (Tex. App.-Houston [1st Dist.] 1979, no writ). TDC then had the burden of proving the amount Gibson earned or could have earned during his period of unemployment. Id. Gibson testified after he was terminated by TDC, he had worked 3 to 4 months, making about seven dollars per hour for 35 to 40 hours per week, which supports a reduction of between $3160.50 and $4816; and had worked for a couple of months for 22 to 24 hours per week at five dollars per hour, which supports a further reduction of between $946 and $1548.

The foregoing evidence would support a recovery of as much as $48,693.50 in lost past wages.

Gibson’s medical records indicated Gibson was 30 years old and in good health. There was testimony concerning extensive athletic activity on his part, including competitive boxing. His mother testified he planned to make a career of his job with TDC. Bradshaw testified Gibson was the type of man TDC wanted to make a career out of working for TDC. The jury was permitted to conclude that Gibson would have been able to remain at TDC the remainder of his working life.

TDC correctly points out that there was no expert or lay evidence specifically addressing Gibson’s life expectancy. TDC’s assertion that such evidence was necessary to support the jury’s damage finding is incorrect, however. See Tom Brown Drilling Co. v. Nieman, 418 S.W.2d 337, 343 (Tex. Civ. App.-Eastland 1967, writ ref’d n.r.e.); Rhoden v. Booth, 344 S.W.2d 481, 486 (Tex. Civ. App.-Dallas 1961, writ ref’d n.r.e.). The evidence supports loss of past wages in an amount as much as $48,693.50 over a period of 24 months; that figure represents a rate of loss of past wages of $24,346.75 annually. If that same rate of loss of wages were to continue, the $101,306.50 balance of the $150,000 verdict would compensate Gibson for just a little over four years of lost future wages. The jurors could apply the evidence and conclude that Gibson would continue to live and work as long as the average healthy 30-year-old, and certainly for at least as long as four years. See id.

*4 The evidence was legally and factually sufficient to support an award of $48,693.50 in lost past wages, and at least $101,306.50 in lost future wages. Since the award was not apportioned among the several types of damages sought, it is possible the jury awarded the entire $150,000 award for lost past and future wages.

Gibson’s medical records contain letters from Dr. Gildenberg, the surgeon who treated his injury, to another physician about Gibson’s condition. One, dated April 20, 1989, contains Dr. Gildenberg’s observation “a large factor [in Gibson’s increased physical symptoms] is he has become very frustrated and depressed about being unable to find work, and I fear he will become increasingly depressed about it.” Letters dated November 21, 1989, and March 27, 1990, indicate that Dr. Gildenberg felt Gibson was under an unhealthy degree of stress. One letter indicated a recommendation of a stress management program, while the other reports Gibson had seen another doctor “who discovered a blood pressure of 156/114, and he has been taking antihypertensive medications since.” Dr. Gildenberg’s letter of March 20, 1990, indicates some of that stress may have been due to “the pain and particularly [to] his inability to get back to the body building and very vigorous activity he enjoyed before [his injury].” The evidence of Gibson’s mental anguish exceeds the threshold level of being more than mere “worry, disappointment and anger.” See Ford Sales, Inc. v. Gray, 730 S.W.2d 796, 803 (Tex. App.-Houston [1st Dist.] 1987, no writ). Where, as here, there is no precise legal measure for the recovery of damages, and there is evidence to support an award of damages, considerable discretion is vested in the jury as to the amount assessed. Brazoria County v. Davenport, 780 S.W.2d 827, 831 (Tex. App.-Houston [1st Dist.] 1989, no writ); Adams v. Petrade Intern., Inc., 754 S.W.2d 696, 710 (Tex. App.-Houston [1st Dist.] 1988, no writ). TDC has not shown this discretion was abused.

The jury could validly have awarded a recovery for mental anguish of as much as $101,306.50. We express no opinion about whether the evidence could have supported a greater recovery for mental anguish, because that $100,000-odd threshold is the key to disposition of this point of error.

TDC’s second point of error is overruled. The judgment is affirmed.

DO NOT PUBLISH-TEX. R. APP. P. 90.