Court of Appeals of Texas,
Eastland.
SCHEPPS–FOREMOST, INC., Appellant
v.
Alfred HENRY, Appellee.
No. 11–93–293–CV.
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June 1, 1995.
Attorneys & Firms
Mark M. Donheiser, Bruce Griggs and Dennis L. Roossien, Jr., for Schepps-foremost, Inc.
Ben A. Goff and John E. Collins, for Alfred Henry.
OPINION
BOB DICKENSON, Justice.
*1 Alfred Henry is a former employee of Schepps–Foremost, Inc. who attempted to return to work following an injury for which he had been paid workers’ compensation benefits. When the doctor released him, Henry attempted to return to work but was told that no work was available at that time. Schepps–Foremost had hired a replacement worker, and its personnel office told Henry to keep in touch with his foreman to find out when work would be available. The jury found that Schepps–Foremost had wrongfully discharged or discriminated against Henry in violation of TEX.REV.CIV.STAT.ANN. art. 8307c (Vernon 1971).1 Judgment was rendered on the jury’s verdict that Henry recover $80,000 for actual damages plus $150,000 for punitive damages.2 Schepps–Foremost appeals. We reverse and render.
The Jury’s Verdict
Omitting the explanatory instructions and Question No. 4, which was conditionally submitted and not answered, the jury’s verdict reads in full as shown:
(1) Did Schepps–Foremost, Inc. discharge or in any manner discriminate against Alfred Henry in violation of the Texas Workers’ Compensation Act? ANSWER: YES
(2) What sum of money, if any, if now paid in cash, would be the reasonable amount suffered by Alfred Henry as a result of being discriminated against or discharged, or in any other manner discriminated against, if he was, by Schepps–Foremost, Inc.? ANSWER: $80,000.00
(3) Do you find from a preponderance of the evidence that Plaintiff Alfred Henry failed to use reasonable diligence to seek equivalent employment from the time of his discharge by defendant, if any? ANSWER: NO
(5) Did Schepps–Foremost, Inc., act willfully or maliciously in discharging Alfred Henry? ANSWER: YES
(6) What sum of money, if any, do you find should be awarded against the Defendant, Schepps–Foremost, Inc., as punitive damages? ANSWER: $150,000.00
Points of Error
Appellant presents six points of error. Appellant argues in Points 1, 3, and 5 that the trial court erred in submitting Questions 1, 2, and 5 and in denying its motion for judgment notwithstanding the verdict because: there is “no evidence” that Henry was discharged or discriminated against in violation of Article 8307c; there is “no evidence” of lost wages or employment benefits; and there is “no evidence” that it acted willfully or maliciously. Appellant also argues in Points 2, 4, and 6 that there is “factually insufficient evidence” to support the jury’s affirmative answers to Questions 1, 2, and 5. We sustain Points of Error Nos. 1 and 5, holding there is no evidence to support the jury’s answers to Questions 1 and 5. The other points become moot and need not be discussed. TEX.R.APP.P. 90(a).
Right to Hire Replacement Worker
Henry and his lawyer agreed during trial that an employer has the right to hire a replacement worker on an assembly line operation when an assembly-line employee is not able to work because of a job-related injury.
Discrimination
*2 In order to recover damages under Article 8307c, Henry has the burden to prove that he was either discharged or discriminated against because of a workers’ compensation claim. In Palmer v. Miller Brewing Company, 852 S.W.2d 57 at 61 (Tex.App.-Fort Worth 1993, writ den’d), the court stated:
The act of informing the employer of the injury sufficiently institutes a compensation proceeding, and when this action is shown there is a fact question as to whether there is a causal connection between the compensation proceeding and termination. The employee has the burden of establishing this causal link; then the employer must rebut the allegations by showing a legitimate reason for the discharge. (Citations omitted; Emphasis added)
Evidence of Discrimination or Discharge
The jury did not accept the employer’s argument that Henry was not terminated,3 but there is no proof that his compensation claim had anything to do with the fact that he had been replaced while he was unable to work or with the manner in which he was treated when he attempted to return to work. Henry and his wife both thought that he had not been treated fairly, but they failed to connect their beliefs with proof of discriminatory treatment which had a “causal link” to the compensation claim.
The only direct evidence on this point was testimony by employees of Schepps–Foremost, and this evidence must be disregarded under the “no evidence” test stated in Martinez v. Delta Brands, Inc., 515 S.W.2d 263 at 265 (Tex.1974):
When a party asserts that there is no evidence to support jury findings, we must review the evidence in its most favorable light, considering only the evidence and inferences which support the findings, and rejecting the evidence and inferences contrary to the findings.
In order to support the jury’s verdict, Henry points to the form dated August 22, 1990, which Schepps–Foremost filed with the Industrial Accident Board. That form states in pertinent part:
6. Date of Injury 4/10/90
8. Has injured returned to work? yes If so, date and hour 8/20/90
9. Is injured person earning same wages as before injury? see below
Employee received release to return to work effective 8/20/90. Due to the length of recovery time the company was not able to keep his position open.
Henry argues that this form is some evidence of discriminatory treatment under Article 8307c. We disagree. When properly read, it shows that the employee attempted to return to work when the doctor released him but that his position was not open. This was a truthful report which was required by law. It could not properly be used to impose liability under Article 8307c.
Mrs. Henry made notes of the meeting which she and her husband had with the Schepps–Foremost employee when Henry tried to return to work after he was released by the doctor. Those notes are quoted in full as shown:
Friday
Aug 17, 1990
Took Doctor Release Forms—from Dr. Phil Berry & Dr. J Lu gave to Carla in personnel—she advised—work compensation checks would stop—she would send Dr release forms to home office—she advised Pete keep in touch with Dean (at Schepps) also said advised no job openings She said Pete could look for another job. Let them know if found one I (Georgie Henry–Pete’s wife) asked Carla since Pete was hurt on job was it not law that they would have a job for him—she said No—only Liable to send comp. checks.
*3 These notes do not show any discriminatory actions which would impose liability under Article 8307c.
The trial exhibits also show that, after the meeting, Henry sent medical forms to Schepps–Foremost which he used to receive disability benefits under his personal insurance coverage. Henry makes no claim that he made other attempts to return to work until after many months had passed.
This Court’s Ruling
The judgment of the trial court is reversed, and judgment is rendered that Alfred Henry take nothing from Schepps–Foremost, Inc. in connection with the cause of action asserted in this case.
McCLOUD, Chief Justice, Retired, Court of Appeals, Eastland, sitting by assignment pursuant to TEX. GOV’T CODE ANN. § 74.003(b) (Vernon 1988).
WRIGHT, Justice, not participating.
Footnotes |
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1 |
That statute was recodified as Chapter 451 of the TEXAS LABOR CODE, effective September 1, 1993. See TEX. LABOR CODE ANN. §§ 451.001 and 451.002 (Vernon Pamph.1995). |
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2 |
Section 451.002 provides for the recovery of “reasonable damages incurred” and “reinstatement in the former position.” We need not decide if punitive damages can be recovered under this statute. |
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3 |
This was a disputed fact issue. There was evidence that Henry had been placed on “leave” on 4–13–90 and subsequently “separated” on 8–30–90 with the comment: “Inactive-no date when employee will be returning to work.” |
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