Court of Appeals of Texas, Beaumont.

SECURITY FINANCE CORPORATION, Appellant,

v.

Sheila BLAKELY, Appellee.

No. 09-96-295CV.

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Aug. 13, 1998.

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Rehearing Overruled Sept 24, 1998.

Before WALKER, C.J., BURGESS and STOVER, JJ.

OPINION

STOVER.

*1 Appellant Security Finance Corporation (SFC) appeals a verdict in which the jury found that SFC violated the Workers’ Compensation Act¹ in terminating appellee Sheila Blakely (Blakely) and that it did so maliciously. The jury awarded Blakely $173,000 in actual damages, the contested portion of which is $72,000 for future lost wages and $80,000 for past and future mental anguish. Exemplary damages of $200,000 were also awarded.

SFC challenges the verdict with seven points of error. Points one and two challenge the jury’s “malice” finding. Points three, four, and five challenge the sufficiency of the evidence; point six contends the exemplary damage is excessive; and point seven concerns admissibility of evidence.

APPLICABLE LAW

The Texas labor code prohibits an employer from discharging or in any other manner discriminating against an employee because the employe has filed a workers’ compensation claim in good faith. Tex.Lab.Code Ann. § 451.001 (Vernon 1996). In order to succeed on a claimed violation of § 451.001 (often referred to as the Anti-Retaliation statute), the employee must show that without the protected conduct (i.e., reporting of the workers compensation claim), the employer’s prohibited conduct (in this case, termination of employment) would not have occurred when it did. Continental Coffee products Co. v. Cazarez, 937 S.W.2d 444, 450-51 (Tex.1996). This causal connection may be established by direct or circumstantial evidence. Terry v. Southern Floral Co., 927 S.W.2d 254, 257 (Tex.App.-Houston [1st dist.] 1996, no writ). Once the link is established, it is the employer’s burden to rebut the alleged discrimination by showing there was a legitimate reason behind the discharge. Id.

RETALIATORY DISCHARGE

In points of error three, four, and five, SFC challenges the sufficiency of the evidence. In considering a legal insufficiency question, we consider only the evidence and inferences tending to support the jury’s finding and disregard all contrary evidence and inferences. Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 458 (Tex.1992). Anything more than a scintilla of evidence is legally sufficient to support the finding. Continental Coffee, 937 S.W.2d at 450.

A factual sufficiency point requires examination of all the evidence in determining whether the finding in question is so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661-62 (1951). Under this analysis, we are not fact finders. Neither do we pass upon the credibility of witnesses or substitute our judgment for that of the trier of fact, even if there is conflicting evidence upon which a different conclusion could be supported. Clancy v. Zale Corp., 705 S.W.2d 820, 826 (Tex.App.-Dallas 1986, writ ref’d n.r.e.); Martin v. Texas Dental Plans, Inc., 948 S.W.2d 799, 802 (Tex.App.-San Antonio 1997, writ denied).

*2 On January 31, 1992, Blakely sustained a back injury while lifting a computer at work. She reported the injury the next day to her supervisor, Gail Blankenship, and asked if she (Blakely) needed to report it. Blankenship told her it was considered reported. Only if appellee missed work for two weeks would she need to put anything in writing. Between the date of injury and date of termination, Blakely was never asked to complete an accident report, and Blankenship never reported the injury to SFC until April 20, 1992. Blankenship stated she never heard of Blakely’s injury until Blakely’s chiropractor called Blankenship on April 20. Contrary to Blankenship’s testimony, however, is that of employee Sherry Yeamans who testified Blankenship told her on April 10 that Blakely was either ill from her back injury or from a confrontation between the two (Blakely and Blankenship). Blankenship’s failure to report the injury was in direct violation of SFC’s stated company policy of immediate reporting of employees’ on-the-job injuries.

Although her back pain persisted, Blakely continued to work. On February 12, 1992, she went to a doctor who prescribed pain medication and muscle relaxers, which left her nauseous and at times caused her to vomit. On April 10 after Blakely vomited in the bathroom, Blankenship helped her lie down on the floor. While she was ill and lying on the floor, Blankenship gave Blakely a choice of taking a leave of absence or quitting. No mention was made of a workers’ compensation claim although there was testimony Blankenship had been informed of the injury. Blankenship had Blakely sign a request for leave and other documents while she (Blakely) was still on the floor. Once the documents were signed, Blankenship instructed Sherry Yeamans to take Blakely to the emergency room. Blakely testified she was told that, although a new manager would replace her, she could come back as an assistant manager. On the same day, April 10, the office locks were changed.

On April 18, during her leave of absence, Blakely returned to the office to pick up some items. It was then, according to written statements by co-workers Martin Cortines and Sherry Yeamans, that Blakely told them the company did not care about its employees, that Perkins and Blankenship had cursed her, and that Perkins had used the “F” word.

On April 20 the chiropractor whom Blakely had seen for her injury called Blankenship and related information about Blakely’s on-the-job injury. Later the same day, Blakely was terminated. It was also after the chiropractor’s call, but on the same day, that Blankenship solicited the written statements about Blakely from Yeamans and Cortines. According to Yeamans, Blankenship declared she wanted the statements in case SFC was sued.

Reviewing the evidence in the light most favorable to the verdict, we conclude there is some evidence to support the jury’s finding that SFC discharged Blakely when she did because of Blakely’s institution of a workers’ compensation claim. The evidence reveals that Blankenship had never reported the injury even though she had been informed of it on more than one occasion. Indeed, she specifically told Blakely that nothing needed to be put in writing regarding a claim until at least two weeks of work had been missed. Even when Blakely was lying ill on the floor, SFC, through its supervisor Blankenship, gave Blakely only two choices-quit or take a medical leave. No mention was made of a compensation claim for her on-the-job injury. After the chiropractor called on April 20 to discuss the on-the-job injury, then, on the very same day, Blankenship, upon consultation with her supervisor Perkins, terminated Blakely. We conclude the evidence is legally sufficient to support a finding of retaliatory discharge.

*3 We likewise conclude the jury finding is not so against the great weight and preponderance of the evidence as to be manifestly unjust. In looking at all the evidence in the record, we find assertions by supervisors Blankenship and Perkins of Blakely’s substandard job performance. Although there are job evaluations in the record indicating problems with Blakely’s performance, Blakely claims she was informed of only one complaint prior to her termination when she was simply told to “just work the accounts.” Blankenship also alleged Blakely had excessive absences from her job. Between January 31, 1992, the date of the injury, and April 20, Blakely was absent one full day and parts of four other days. Yet company logs reveal another employee was absent more days than Blakely; that employee was not discharged or threatened with discharge. Blankenship further testified that after Blakely left on her leave of absence, she (Blakely) made the derogatory comments about Blankenship, Perkins, and the company. Blakely, on the other hand, testified she never made such remarks to anyone. The evidence being conflicting, we defer to the jury’s determination of the credibility of the witnesses and the weight to be given their testimony.

Our review of all the evidence does not demonstrate the finding of retaliatory discharge is so against the great weight and preponderance of evidence as to be manifestly unjust. We conclude the evidence is factually sufficient to show that without Blakely’s pursuit of the workers compensation claim, Blankenship would not have terminated Blakely when she did. Point of error three is overruled.

LOSS OF WAGES IN THE FUTURE

Point of error four claims the jury award of lost wages in the future is not supported by legally or factually sufficient evidence, “because (1) it is grounded solely upon Blakely’s speculation that she ‘wanted’ to work until age 60 and (2) it ignores Blakely’s admission that she has not sought employment since November 1994.” Generally, when an employee is wrongfully discharged, the employee may recover for all wages past due and for all future promised wages, less what can be earned by reasonable effort in similar employment. W. Pat Crow Forgings, Inc. v. Cazarez, 749 S.W.2d 192, 194-95 (Tex.App.-Fort Worth 1988, writ denied). Loss of earning capacity (or in this case, loss of future wages) that a party will suffer in the future is always uncertain and left largely to the jury’s sound judgment and discretion. McIver v. Gloria, 140 Tex. 566, 169 S.W.2d 710, 712 (Tex.1943); Borden, Inc. v. Guerra, 860 S.W.2d 515, 524 (Tex.App.-Corpus Christi 1993, writ dism’d by agr.). Even so, the verdict must be based on something more than mere conjecture. McIver, 169 S.W.2d at 712. A party need not produce testimony from an expert witness to support a claim for loss of future earning capacity. Id. Neither is proof of life expectancy required to support the claim. Paragon Hotel Corp. v. Ramirez, 783 S.W.2d 654, 661 (Tex.App.-El Paso 1989, writ denied).

*4 A wrongfully discharged employee has a duty to mitigate damages by making a good faith effort to obtain and retain employment. Gulf Consol. Int’l, Inc. v. Murphy, 658 S.W.2d 565, 566 (Tex.1983) (op. on reh’g); Gorges Foodservice, Inc. v. Huerta, 964 S.W.2d 656, 669 (Tex.App.-Corpus Christi 1997, writ withdrawn). Mitigation is a defensive issue upon which SFC bore the burden of proof at trial. Id. Generally, the adequacy of efforts to mitigate are fact questions properly left to the jury. Id.; Pacesetter Corp. v. Barrickman, 885 S.W.2d 256, 263 (Tex.App.-Tyler 1994, no writ).

The record reveals that Blakely, by her own testimony, is able to work. Thirty-four years old at the time of trial, she stated her desire was to work until the age of sixty, a span of some twenty-six years. At SFC, she made $1,000 per month base pay with unspecified sums for a car allowance and bonuses. Blakely further testified that she had repeatedly attempted to find work after her termination and had applied with approximately fifty different employers. Although she found employment for a few weeks at a convenience store, the employer terminated her as soon as he became aware of her compensation claim. According to Blakely, that pattern of rejection repeated itself over and over. In November 1994, she stopped searching for a job. The trial in this case was held in May 1996, some one and a half years after Blakely discontinued her job search.

In reviewing only the evidence supporting the award of future lost wages, we conclude the evidence is legally sufficient to support the award. Viewing all the evidence, we also conclude the jury finding is factually sufficient. Through an instruction in the jury charge, the jury was made aware of the appellee’s “duty to mitigate damages by making a good-faith effort to obtain and retain employment that she is qualified to perform.” The evidence before the jury was that Blakely made repeated attempts to find work but was rebuffed at every turn because of her workers’ compensation claim. Evaluation of the reasonableness of her mitigation efforts was for the jury to decide. The evidence before the jury revealed her yearly pay to be $12,000, though that sum does not include the car allowance and bonuses. The amount which the plaintiff might have earned in the future is always uncertain and must be left largely to the discretion of the jury. McIver, 169 S.W.2d at 712. Since the jury had before it her efforts at mitigation, her monthly salary at SFC, and her stated desire to work twenty-six years, we conclude the evidence is both legally and factually sufficient to support the award for loss of future lost wages. Point of error four is overruled.

MENTAL ANGUISH

In point of error five, appellant claims the evidence is legally and factually insufficient to support the award of mental anguish. In most cases, plaintiffs may not recover mental anguish damages unless they introduce “direct evidence of the nature, duration, and severity of their mental anguish, thus establishing a substantial disruption in plaintiff’s daily routine. Universe Life Ins. Co. v. Giles, 950 S.W.2d 48, 54 (Tex.1997) (quoting Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex.1995)). If there is no direct evidence, mental anguish can also be shown by 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).

*5 Here, appellee testified she was worried all the time and suicidal. She had ulcers. Because she had never been terminated from a job, she felt like a failure. Her stress made her back pain worse. She was taking anti-depressants and sleeping pills and had been to a mental health professional for approximately four weeks. Although she had applied with fifty employers, she could not find a job. She claimed her inability to find work was the result of the prospective employer’s knowledge of her compensation claim.

Clearly, there is evidence of Blakely’s distress, but the question remaining is whether that distress meets the requirements of Parkway and its progeny. In Parkway, the plaintiff testified he was “hot,” “very disturbed.” His wife testified “it’s just not pleasant”… “It was just upsetting, Ray … would become very quiet.” “It caused some friction between us …” “I was just upset that it changed our lifestyle.” Parkway, 901 S.W.2d at 445. The Texas Supreme Court characterized the statements of the plaintiffs as showing anger, frustration, or vexation, but they did not rise to a compensable level. Id. The Court found no direct evidence of the nature, duration, or severity of the mental anguish. In Saenz, the sole evidence of mental anguish was as follows:

I worried about that a lot. My husband was already working two jobs, and I was worried also that we were going to lose our house because when we bought it we had two incomes, and I knew that we couldn’t afford the medical bills that we were going to have.

Saenz, 925 S.W.2d at 614. The Court again concluded that under the Parkway standard a feeling of worry is insufficient to establish mental anguish.

The evidence in the instant case is of a different character than that in Saenz and Parkway. Here, the plaintiff’s testimony-of having undergone four back surgeries as a result of her injury, being suicidal, worrying all the time, having ulcers, taking anti-depressants and sleeping pills, feeling like a failure, and having to undergo treatment by a health care professional-evidences more than worry, vexation, anxiety, embarrassment, or anger. By its very nature, the testimony supports a reasonable inference that SFC’s conduct resulted in a substantial disruption in Blakely’s daily routine.

In awarding mental anguish damages, juries must exercise their discretion, but such discretion is limited. Saenz, 925 S.W.2d at 614. “Juries cannot simply pick a number and put it in the blank. They must find an amount that, in the standard language of the jury charge, ‘would fairly and reasonably compensate’ for the loss.” Id. In reviewing the damage award, the appellate court must ascertain whether the amount awarded is fair and reasonable compensation. Id. We have reviewed the evidence, as set forth above, and find that a reasonable jury could determine $80,000 ($50,000 for past mental anguish and $30,000 for future mental anguish) is fair and reasonable compensation for the mental anguish suffered by Ms. Blakely under the circumstances presented. We, therefore, find the evidence to be both legally and factually sufficient to support the jury’s award for mental anguish. Point of error five is overruled.

MALICE

*6 Appellant contends in point of error one the jury’s malice finding and exemplary damage award are not supported by legally or factually sufficient evidence. The necessary quantum of evidence for a jury to find malice in order to award exemplary damages for violation of § 451.001 was recently addressed by the Texas Supreme Court in Continental Coffee.²

In our jurisdiction, malice may be either actual or implied. Actual malice is characterized by ill-will, spite, evil motive, or purposing the injuring of another. Continental Coffee, 937 S.W.2d at 452. Implied or legal malice, on the other hand, exists when wrongful conduct is intentional and without just cause or excuse. Id. As the court pointed out, the type of malice necessary to support punitive damages varies with the nature of the wrongful act at issue in any given category or particular type of case. Id. at 453. However, in cases involving a violation of § 451.001, actual malice must be shown before punitive damages may be assessed against an employer. Id. at 454.

In our review of the record, we find no evidence meeting the required standard of ill-will, spite, evil motive, or a specific intent to harm. Blakely herself testified Blankenship always treated her well and was concerned about her. Although pointing to certain work deficiencies, the job performance evaluations admitted into evidence reveal no ill-will by Blankenship. They instead offer specific suggestions on areas of needed improvement. Even when Blakely was ill in Blankenship’s office on April 10, Blakely testified Blankenship seemed concerned and told Yeamans to take Blakely to the emergency room. Moreover, we do not find that the earlier recounted evidence establishing the violation of § 451.001 suggests this is the type of “egregious” violation which Continental Coffee requires for a finding of punitive damages. Therefore, we conclude there is no evidence to support the trial court’s finding that SFC acted with malice. Point of error one is sustained.

In point of error six, SFC contends it is entitled to a new trial or remittitur on the exemplary damage award. Because we hold there is no evidence to support a punitive damage award, we need not address point of error six.

Finally, in point of error two, SFC contends the trial court improperly defined the term “malice” in the jury charge. Since we have already concluded there is no evidence to support a malice award, it is not necessary that we address point of error two.

EXCLUSION OF EVIDENCE

In point of error seven, SFC contends the trial court abused its discretion by excluding the written statements of two SFC employees; the statements concerned Blakely’s discharge. Appellee had objected to their admission on the grounds of hearsay. See Tex.R.Civ.Evid. 801(d). SFC claimed the statements were not hearsay because they were offered for a purpose other than to prove the truth of the matter asserted. Specifically, SFC offered them to show Blankenship’s belief in and reliance upon their contents when she made the decision to terminate Blakely. Authority exists providing that communications made or received by a person will often be relevant, not as evidence that the facts are as stated in the communication, but instead as tending to show the knowledge or belief of the person who communicated or received the statement. Chandler v. Chandler, 842 S.W.2d 829, 831 (Tex.App.-El Paso 1992, writ denied).

*7 At trial Blankenship testified she terminated Blakely because of insubordinate remarks and absenteeism. For the purpose for which SFC sought to admit the two statements, they are cumulative of evidence already admitted. They contain the same allegations regarding “cuss fights,” use of the “F” word, and insubordinate remarks about the company, all of which came in through other evidence. The exclusion of cumulative evidence is harmless error. Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex.1989); Pitman v. Lightfoot, 937 S.W.2d 496, 518 (Tex.App.-San Antonio 1996, writ denied); see also Tex.R.Civ.Evid. 403. Point of error seven is overruled.

We affirm in part and reverse in part the judgment of the trial court and render judgment that Blakely take nothing on her claim for exemplary damages.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED IN PART.

BURGESS.

DISSENTING OPINION

*7 I respectfully dissent to the majority’s holding that the evidence is legally insufficient as to the jury finding of malice. This determination is to be made under the standard of actual malice set forth in Continental Coffee Products Co. v. Cazarez, 937 S.W.2d 444, 452-55 (Tex.1996), i.e, evidence of ill-will, spite, evil motive or a specific intent to cause injury to the employee. The majority accurately sets out the pertinent facts under their analysis of the sufficiency of the evidence concerning the retaliatory discharge. Yet the majority review of the evidence on this issue seems focused on items favorable to Security Finance. My review of the record reveals the following, which is some evidence or more than a scinitilla, from which the jury could have found ill-will, spite, evil motive or a specific intent to cause injury:

1) Ms. Blakely was told that no injury report should be made until she had lost at least two week’s work,

2) Security Finance did not even make a report of the injury after they were supplied with a physician’s report,

3) Ms. Blakely had a reaction from her medication and, while lying on the floor, was told by the supervisor that Ms. Blakely should either take a two week medical leave or quit,

4) Ms. Blakely was again told that nothing would be put in writing concerning a workers’ compensation claim until she had been off work for two weeks,

5) the Security Finance supervisor filled out a leave of absence request and presented it to Ms. Blakely while she was still on the floor,

6) Ms. Blakely was told she would no longer be the manager, but could return as an assistant manager,

7) Ms. Blakely’s co-worker was told Ms. Blakely would no longer be the manager and would not be returning to work,

8) despite Ms. Blakely being told she could return to work, the locks were changed immediately after she was taken to the hospital,

9) a co-worker felt the action of changing the locks indicated Ms. Blakely had been terminated, since it was normal procedure to change the locks when someone had been terminated,

*8 It is a reasonable inference that from the time of Ms. Blakely’s injury, Security Finance began a course of conduct designed to thwart the protections of the Workers’ Compensation scheme, to mislead Ms. Blakely about the procedures involved and ultimately to punish Ms. Blakely for invoking her rights under the act. I would uphold the jury’s verdict and affirm the exemplary damage award.

	Footnotes
1		The applicable statute is Tex.Rev.Civ.Stat.Ann. art. 8307c (Act of April 20, 1971, 62nd Leg. R.S., ch. 115, 1971 Tex.Gen.Laws 884, repealed by, Act of May 12, 1993, 73rd Leg.R.S., ch. 269, § 5(1), 1993 Tex.Gen.Laws 1273) (current version at Tex.Lab.Code Ann. § 451.001). Section 451.001 became effective September 1, 1993, and is a recodification of art. 8307c, § 1. Since the recodification did not change the substantive law, we will refer to the recodified statute.
2		Although decided after the trial in the instant case and during pendency of this appeal, Continental Coffee nonetheless applies. “A decision of the Supreme Court operates retroactively unless this Court [Texas Supreme Court] exercises its discretion to modify that application.” Bowen v. Aetna Cas. and Sur. Co. 837 S.W.2d 99, 100 (Tex.1992). When the applicable law changes during the pendency of the appeal, a court of appeals must render its decision in light of the change in the law. Blair v. Fletcher, 849 S.W.2d 344, 345 (Tex.1993). There are exceptions to the general rule of retroactive application. Elbaor v. Smith, 845 S.W.2d 240, 250 (Tex.1992). However, because the Supreme Court did not exercise its discretion to modify the application of the general rule of retroactivity in Continental Coffee, we apply the construction of the law therein. Camacho v. Samaniego, 954 S.W.2d 811, 825 (Tex.App.-El Paso 1997, writ denied).