Court of Appeals of Texas,

Houston (1st Dist.).

Gregory STRONG, Appellant,

v.

GROCERS SUPPLY, INC., and Hook-Em Express, Inc., Appellees.

No. 01-92-00899-CV.

|

April 29, 1993.

Before SAM BASS, WILSON and DUNN, JJ.

O P I N I O N

WILSON, Justice.

*1 The appellant, Gregory Strong (Strong), appeals from the trial court’s judgment granting an instructed verdict in favor of the appellees, Grocers Supply, Inc. and Hook-Em Express, Inc. (Grocers Supply). We affirm.

Strong was hired as a truck driver by Grocers Supply on May 23, 1988. On July 25, 1988, Strong broke a mirror and caused scratches on a truck belonging to Grocers Supply while pulling it away from a loading dock, resulting in approximately $200 in damage. On May 29, 1989, Strong was involved in a serious accident while driving a truck for Grocers Supply. Strong’s semi-tractor and trailer flipped over while attempting to exit the freeway around a curve. Strong also sustained physical injuries from the accident. He was hospitalized for a period, and on orders of his physician, was not permitted to return to work before August 28, 1989.

On August 28, 1989, Strong reported back to work. On August 31, Strong was terminated following a meeting of the company’s accident review board which determined that the second accident was preventable.

On October 13, 1989, Strong sued Grocers Supply alleging wrongful termination. At the close of Strong’s presentation of evidence, the trial court granted Grocer Supply’s motion for instructed verdict.

In his sole point of error, Strong contends the trial court erred in rendering an instructed verdict because the evidence presented at trial raised material issues of fact about which reasonable minds would differ.

An instructed verdict is properly granted at the close of a plaintiff’s case if the plaintiff has failed to raise controverted fact issues, and the defendant is thereby entitled to judgment as a matter of law. Shelton v. Swift Motors, Inc., 674 S.W.2d 337, 340 (Tex. App.-San Antonio 1984, writ ref’d n.r.e.). The motion may be granted on the basis that the evidence is insufficient to raise an issue of fact as to one or more fact propositions which must be established for the plaintiff to be entitled to judgment. Ottis v. Haas, 569 S.W.2d 508, 512 (Tex. Civ. App.-Corpus Christi 1978, writ ref’d n.r.e.); Shelton, 674 S.W.2d at 340. In other words, an instructed verdict is appropriate where a plaintiff does not present evidence to establish an essential element of his cause of action.

On appeal from an order granting an instructed verdict, the appellate court must view the evidence in the light most favorable to the party against whom the verdict was granted. Shelton, 674 S.W.2d at 340. Where reasonable minds may differ as to the truth of conflicting facts, an issue is presented for the jury to determine. Id. at 341.

Strong sought to recover damages from Grocers Supply for wrongful termination pursuant to article 8307c of the Texas Revised Civil Statutes, which provides in pertinent part:

No person may discharge or in any other manner discriminate against any employee 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 Workmen’s Compensation Act, or has testified or is about to testify in any such proceedings.

*2 TEX. REV. CIV. STAT. ANN. art. 8307c, § 1 (Vernon Supp. 1993).

The plaintiff in a wrongful termination suit under article 8307c has the burden of establishing a “causal link” between the firing and the employee’s claim for workers’ compensation benefits. Hughes Tool Co. v. Richards, 624 S.W.2d 598, 599 (Tex. App.-Houston [14th Dist.] 1981, writ ref’d n.r.e.), cert. denied, 456 U.S. 991 (1982). Once the link has been established, the employer must rebut the alleged discrimination by showing there was a legitimate reason behind the discharge. Id. Strong contends there was sufficient evidence to present a fact issue as to whether his claim for workers’ compensation claim was a factor in his termination.

Evidence was presented at trial that Strong filed a workers’ compensation claim as a result of his job-related injuries. There was also evidence that Strong hired a lawyer to represent him in connection with his claim. Having reviewed the record, however, we find no evidence to establish a causal link between the prosecution of his workers’ compensation claim and his termination.

Strong contends there is circumstantial evidence in the record to raise a fact issue about whether his filing of a workers’ compensation claim was a factor in his termination. For circumstantial evidence to raise a fact issue, a reasonable person must be led by the evidence to conclude that the existence of the fact is more reasonable than its nonexistence. Smith v. Tennessee Life Ins. Co., 618 S.W.2d 829, 834 (Tex. Civ. App.-Houston [1st Dist.] 1981, no writ). Further, when circumstances are consistent with either of two facts and nothing shows that one is more probable than the other, neither fact can be inferred. Litton Indus. Prod., Inc. v. Gammage, 668 S.W.2d 319, 324 (Tex. 1984). Thus, where the same piece of circumstantial “evidence” equally supports two conflicting inferences, it does not constitute evidence of either inference and neither inference may be drawn by the factfinder.

First, Strong contends there was evidence that Grocers Supply did not follow its established disciplinary procedures in dismissing him. Evidence was presented that Grocers Supply maintained a “Truck Driver Safety Performance Point System.” Active drivers and new hires initially received a five point credit. Thereafter, points would be deducted from a driver’s total if the driver was involved in accidents involving injuries or damage. The number of points deducted depended upon the severity of the accident. Drivers received an additional point at the conclusion of each year they drove without a chargeable accident. Drivers were required to maintain a minimum of one point to continue their employment at Grocers Supply.

Evidence was also presented that Grocers Supply policy was to use an “accident review board,” composed of fellow truck drivers, to determine the “chargeability” of accidents involving its drivers. The board was to be guided in its decisions by the American Trucking Association’s “Guide to Determining Preventability of Accidents.”

*3 Strong’s termination letter states the following:

Mr. Strong, listed below are the dates of chargeable accidents which you have been involved in while employed with Grocers Supply. 7-25-88 and 5-29-89

. . .Mr. Strong, as of August 31, 1989, you do not meet the minimum requirement of Safety Points specified, therefore, you are hereby terminated from The Grocers Supply Company effective immediately.

Strong testified he was not told his employment was subject to the safety point system at the time he was hired. Strong also testified no accident review board was convened to determine whether the earlier July 5, 1988 accident was preventable, and he was not advised that one safety point was deducted from his accrued points because of that accident. We find the fact that no accident review board was convened after Strong’s July 25, 1988 accident is no evidence that his filing of a workers’ compensation claim following his May 29, 1989 accident was a factor in his termination.

An employer’s failure to follow established disciplinary procedures, when combined with other factors, may provide evidence of a causal connection between a workers’ compensation claim and a discharge. See Paragon Hotel Corp. v. Ramirez, 783 S.W.2d 654, 658 (Tex. App.-El Paso 1989, writ denied) (sufficient circumstantial evidence of causation consisting of knowledge of compensation by those making decision on termination, expression of negative attitude toward employee’s injured condition, failure to adhere to established incremental discipline policy, and discriminatory treatment of employee who filed claim compared to other employees who committed similar infractions); Investment Properties Management, Inc., v. Montes, 821 S.W.2d 691, 694-96 (Tex. App.-El Paso 1991, no writ) (sufficient circumstantial evidence of causation where supervisors expressed negative attitude toward employee’s injury and claim, employer failed to timely submit employee’s injury report resulting in delayed benefits, supervisors gave conflicting testimony regarding employee’s injury report and discharge, and supervisor testified plaintiff’s position was filled by a permanent employee during plaintiff’s absence even though employer’s paperwork listed the replacement worker as “temporary”). In the present case, however, the failure to follow established procedures occurred nearly one year before the accident that precipitated the filing of the compensation claim. No evidence was presented that the policy of convening the accident review board was adhered to when other employees were involved in minor accidents, or that employees were regularly informed when points were deducted from their records.

It might be argued that this evidence could create an inference that Grocers Supply deducted the point for Strong’s first accident following his filing of a workers’ compensation claim after the second accident. However, no evidence was presented about how many points were deducted for the second, more serious, accident. Specifically, Strong did not present evidence that the points deducted for the second accident, standing alone, were insufficient to warrant his termination. Thus, an inference cannot be drawn that Grocers Supply improperly deducted a point for the first accident following his second accident as a pretext to enable them to terminate him.

*4 Second, Strong contends the evidence presented at trial that payment of worker’s compensation claims generally tends to increase insurance premiums at Grocers Supply was evidence that he was discriminated against. Strong cites Murray Corp. v. Brooks, 600 S.W.2d 897 (Tex. App.-Tyler 1983, writ ref’d n.r.e.), to support his contention. In that case, testimony was presented that one of the fired employee’s managers admitted that the increased premiums were a consideration in the decision to terminate the employee. Id. at 901. While increased insurance premiums might provide a motivation for an employer to terminate an employee, there is no evidence in the record that such an increased cost was a factor in Grocers Supply’s decision to terminate Strong.

Third, Strong contends the proximity of time between the filing of his claim and his termination demonstrates a causal link between the two events. Strong filed his workers’ compensation claim on July 25, 1989, and was terminated on August 31, 1989. Strong cites Southwestern Electric Power Co. v. Martin, 844 S.W.2d 229 (Tex. App.-Texarkana 1992, writ denied), for the proposition that a court may consider the proximity between the claim and the firing. In that case, the appellate court found the proximity between the plaintiff’s hiring of an attorney and his firing (less than one month), examined in conjunction with the evidence presented, was sufficient to support a jury finding of discrimination. Id. at 234. Strong cites no evidence to support the inference that the timing of his firing was related to his workers’ compensation claim rather than to the accident review board’s finding that his second accident was preventable.

Finally, Strong points to the following testimony by him as evidence that after his injury, his relationship with his supervisors changed:

Q: What was his reaction, if any, to your physical condition?

A: When I advised him what was going on with me, it was like his reactions were–just–it’s hard to describe. They weren’t the normal as to, “Hey, Gregg, how you doing, what’s going on.” They were unusual reactions.

….

Q: Can you tell us how the relationship changed?

A: I felt it, which I think No. 1, I was off work and wasn’t receiving the amount of pay that I was receiving of [sic] while I was working. And they, he had a check in the drawer that they wouldn’t send or advise me I had. Sometimes I would talk to them on the phone straight direct to the point and nonchalant. That changed, and I didn’t know what to think.

Q: At that time did the casual conversations stop?

A: Yes, sir.

Strong cites several cases for the proposition that circumstantial evidence tending to show a change in treatment following a workers’ compensation claim is sufficient to demonstrate a causal link. However, in each of those cases the court found objective evidence of discriminatory treatment. See, e.g., General Elec. Co. v. Kunze, 618 S.W.2d 826, 828 (Tex. App.-Waco 1987, no writ) (employer became visibly upset and stated the employee “could not hire an attorney because that would be the same as suing G.E.,” and after this incident began complaining about everything employee did and wrote first of eight letters in a three month period criticizing employee’s work performance culminating in termination of employee).

*5 In the present case, Strong’s testimony does not point to any objective evidence of discriminatory treatment after he filed his claim, but only displays Strong’s subjective belief that his personal relationship with his supervisors had changed. No testimony was presented that Strong was entitled to receive the same amount of money while not working that he had received while working. Strong did state that “he had a check in the drawer that they wouldn’t send or advise me I had.” But the significance of this statement, if any, or the facts underlying it were not developed through further testimony.

Indeed, Strong admitted that his belief his relationship with his supervisors had changed was subjective and not based on any conduct or statements on their part:

Q: Mr. Gaston [Strong’s supervisor] didn’t tell you were [sic] being terminated because you instituted a workmen’s compensation proceeding, did he?

A: No.

Q: Mr. Gaston didn’t tell you you were being terminated because you hired a lawyer?

A: No, he did not say that.

Q: No one at Grocers Supply has ever told you that, have they?

A: No, sir. No one told me that.

Q: Okay. And there was nothing anyone did to you at Grocers Supply that even lead you to feel they were firing you for those reasons, did they?

A: No, sir.

….

Q: A few minutes ago, when Mr. Thomas was questioning you about your conclusions that you had been terminated from Grocers Supply because you had instituted proceeding under the workmen’s compensation system?

A: Yes, sir.

Q: Was that a subjective conclusion on your part?

A: I do reached it after–yes, sir. The record before us presents meager circumstantial evidence giving rise to inferences which are at least as consistent with the proposition that Grocers Supply terminated Strong for his poor safety record as they are with the proposition that he was terminated for filing a workers’ compensation claim. We find there is no more than a scintilla of evidence to support the conclusion that Strong was terminated for filing a workers’ compensation claim. See Gammage, 668 S.W.2d at 324.

Strong’s sole point of error is overruled, and the judgment of the trial court is affirmed.

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