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At a Glance:
Brevard Co. v. Smith
May 29, 1997
Unpublished Opinion

Brevard Co. v. Smith

Court of Appeals of Texas, Houston (14th Dist.).



Robert SMITH, Appellee

No. 14-96-00055-CV.


May 29, 1997.

On Appeal from the 23rd District Court Brazoria County, Texas Trial Court Cause No. 92C1290.


YATES, Justice.

*1 This is a wrongful discharge case. A jury found that Brevard Company (“Brevard”) terminated Robert Smith in retaliation for filing a workers’ compensation claim. Brevard raises three points of error challenging the legal and factual sufficiency of the evidence. Smith brings a cross-point complaining the jury charge did not address punitive damages. We affirm the judgment of the trial court.


On February 18, 1991, Brevard hired Smith as an operator for one of Brevard’s several construction projects. On October 25, 1991, Smith injured his back while on the job, and he later filed a workers’ compensation claim. His doctor released him to return to work on March 6, 1992. When Smith presented his medical release to Brevard, Brevard claimed it did not have any work available for him. Smith never performed any work for Brevard after he was released to work by his doctor on March 6, 1992.

The law in effect at the time of Smith’s suit provided the following:

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 proceeding.

Act of May 7, 1971, 62nd Leg., R.S., ch. 115, § 1, 1971 Tex. Gen. Laws 884-85 (originally codified at TEX. LAB.CODE ANN. § 451.002(c) (Vernon 1996)) (“The burden of proof shall be upon the employee.”).

Smith filed suit against Brevard, claiming that Brevard violated article 8307c because it discharged Smith for filing a workers’ compensation claim. The jury agreed and awarded Smith $22,500 in damages.1


In its first point of error, Brevard contends no evidence exists to support the jury’s finding that Smith was discharged on or about March 6, 1992. When deciding a “no evidence” point, the appellate court must consider “only the evidence and inferences tending to support the jury’s finding, viewed most favorably in support of the finding, and disregard all contrary evidence and inferences.” Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 928 (Tex.1993).

When the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is not more than a scintilla and, in legal effect, is no evidence. The test for the application of this no evidence/scintilla rule is that if reasonable minds cannot differ from the conclusion that the evidence offered to support the existence of a vital fact lacks probative force, it will be held to be the legal equivalent of no evidence. However, there is some evidence, more than a scintilla, if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds as to the existence of the vital fact.

*2 Blount v. Bordens, Inc., 910 S.W.2d 931, 933 (Tex.1995) (per curium).

In support of its contention that Smith was not discharged, Brevard points to the following testimony elicited from Smith on cross-examination:

Q. Now, in the court papers that were filed by you [sic] lawyer, it is alleged that you were discharged from your employment. Now, number one, you weren’t discharged, were you?

A. No, sir.

Q. You weren’t discharged, were you?

A. No, sir.

Q. So that’s not correct, is it?

A. That is not correct.

Q. That’s right, that’s not correct.

A. Right.

Q. And then it goes on to say that this discharge that never did happen happened on March 6th of 1992. Now you were not discharged on March 6th of 1992 by Brevard or anybody else, were you?

A. I was told they didn’t have any work for me.

Brevard claims this testimony amounts to an admission by Smith that he was not discharged. However, as the testimony developed, it became clear that Smith believed he was, in fact, discharged:

Q. You weren’t discharged from employment by Brevard on March 6th of 1992.

A. I considered that to be discharged.

Q. What?

A. I considered that discharge, I don’t have any work, that is a discharge.

Q. Well my previous question you said that you never were discharged period.

A. They never give [sic] me a written notice, that’s what you asked me previously, did they ever send me a notice that said I was discharged. I was told they didn’t have any work for me.

This is consistent with Smith’s later testimony that “[N]o one ever said fired, just said we don’t have work for you.... In my own words, I think it is the same thing.” While Brevard correctly maintains that Smith’s own subjective beliefs cannot constitute evidence of discharge, we do not read Smith’s testimony as an admission that he was not discharged.

Having concluded that Smith did not concede the issue of discharge, we now determine whether the record contains some evidence of discharge. Although Brevard contends on appeal that the evidence is legally insufficient to support a discharge, the evidence offered by Brevard at trial on this issue is conflicting. Brevard claimed that it had light duty work available for Smith from the time he was injured (October 1991) until the date of termination claimed by Smith (March 6, 1992). However, on the date Smith presented his work release (March 6, 1992), Brevard did not have work available for him, but it told him it might have work available in a couple of days. Brevard told Smith to contact it at that time. Brevard claims that Smith did not contact the company, and that Brevard’s own attempts to contact Smith failed. Smith’s theory of the case was as follows: although Smith was never specifically informed he was discharged, the fact that Brevard told him no work was available and failed to contact him when work became available was evidence that Smith was effectively discharged.

*3 In support of his theory, Smith testified that Brevard did not offer him a job after he presented his medical release. He left the phone number of his pastor, but no one ever contacted him. His pastor testified that he was not aware of receiving any phone calls on behalf of Smith from Brevard. Smith also testified that he called Brevard a couple days later, as Brevard requested, and that a receptionist told him Brevard did not have any work available. Smith also presented evidence that he was not offered work by Brevard after retaining a lawyer. His lawyer sent a letter to Brevard, demanding that Brevard should re-instate Smith.2 Both Smith and his lawyer testified they never heard from Brevard.

We conclude the record does contain some evidence that Brevard discharged Smith. The evidence supports Smith’s position that although he was never explicitly told he was discharged, Brevard’s actions amounted to a discharge in fact. A rational jury could find that Brevard had discharged Smith on or about March 6, 1992.

Brevard argues that “[t]o hold Brevard liable for discharging Smith under these facts would, in effect, impose an extraordinary duty upon employers of any temporary laborer who comes back after time off for injuries.” Brevard argues that employers must now, as a matter of law, take initiative to track down the employee after obtaining a medical release and then locate the worker through intermediaries to offer him a specific job. We disagree.

The evidence supports Smith’s contention that he made some attempt to contact Brevard after obtaining his release. This is not a case where the employer was unaware of the employee’s release or where the employee made no attempt to contact the employer. Nor does the record clearly show that Smith was only a temporary laborer. Thus, our ruling today does not place an unreasonable burden upon the employer as Brevard contends. Because the evidence in this case was sufficient for a reasonable jury to conclude that Smith was discharged by Brevard, we overrule the first point of error.


In its second point of error, Brevard contends the evidence is legally insufficient to show a causal link between Smith’s discharge and one of the triggering events listed in article 8307c. Brevard argues there is no evidence of (1) a pattern of discrimination, (2) Brevard management discouraging the filing of workers’ compensation claims in this or in other cases, or (3) interference in the compensation proceedings.

It was not necessary for Smith to rely upon the type of evidence pointed to by Brevard. Smith was only required to prove his discharge by Brevard would not have occurred when it did, had Smith not filed the report. Chemical Express Carriers, Inc. v. Pina, 819 S.W.2d 585, 590 (Tex.App.-Tyler 1991, writ denied).

*4 We find evidence suggesting Brevard’s only explanation for Smith’s termination was false, and thus, the evidence is legally sufficient to support causation. See Continental Coffee, 937 S.W.2d at 452 (finding evidence that the employer’s only explanation for the employee’s discharge was false constituted legally sufficient evidence). The record contains some evidence that Brevard made no attempt to contact Smith after Brevard had work available. The cross-examination of Brevard’s superintendent, Don Schuster, concerning Brevard’s reasons for Smith’s termination reveals the following:

Q. On what date did you determine that you did have work for Mr. Smith to perform?

A. I am not sure, I usually-he was in kind of a specialized field so trying to find him a position that, you know, he was qualified in. You know, after I didn’t hear from him in a couple of days I just-well, it’s hard to say, you know, I checked around trying to find a place for all of these people, that’s one thing we try to do is keep employees working.

Q. Okay.

A. We don’t hire people that we don’t plan on staying with us. So I am sure I checked around but I never did hear from him.

Q. Mr. Schuster, to the best of your recollection, when did you find a position of [sic] March 6th of 1992, that Mr. Smith-that you were going to let Mr. Smith go to work at?

A. I feel it was within a couple a days [sic], because that is when I told him to check back the next day or day after.

Q. You told us to tell him to check back with you in a couple of days?

A. Yes.

Q. My question to you: Did you find a position for Mr. Smith to perform?

A. Not in the same place he was working at, no.

Q. That’s not my question, any position for him to work at?

A. Right, we could have put him in different positions.

Q. I know you could have, that’s why we’re here, but did you find him a job to perform?

A. I had a place to put him.

Q. Could you have put him in a number of places the day he came in?

A. No.

Q. So that’s something that came up between March 6th and March the 8th?

A. Yes.

Q. Okay, what was it?

A. We could have put him on scaffolding. We could have put him with insulation.

Q. Those things weren’t available on the 6th but they were on the 8th?

A. You just can’t take a man out there and dump him on a job. You have got to make a position for him.

Q. Okay, you made a position for Mr. Smith on March 8th?

A. Right, we had a place we could put him.

Q. Could and did are two different things.

A. If he didn’t call me back that wasn’t my fault.

Q. Okay, so my question is he didn’t call you back you never found him a position; is that what you are saying?

A. I could have found him a position, but he didn’t call me back.

Q. Mr. Schuster, I am not trying to trick you, just answer my question. Did you find him a position?

A. If he would have called me back I would have had a position for him.

*5 Q. Since he didn’t call you back you didn’t find him a position?

A. Yes, I had a position for him.

Q. Who did you notify about that position?

A. Nobody I don’t guess.

Thus, Schuster’s equivocation about whether a position existed or could have been found a mere two days after Smith was released to work could cause reasonable minds to differ about the reason for Smith’s discharge.

Schuster’s testimony, in conjunction with the evidence presented by Smith supporting his discharge, amounts to some evidence that Brevard’s explanation was false. Brevard claimed that it did not have work available for Smith on March 6, 1992, but that its attempts to contact Smith later when it “could have found him a position” were futile. The jury could have reasonably believed Brevard’s explanation was false because it did not attempt to contact Smith about any available work. The jury may have also believed that work was available, or could have easily been made available, on March 6, but Brevard simply had no intention of providing any work to Smith. Accordingly, we overrule the second point of error.

Factual Sufficiency

In the third point of error, Brevard contends the evidence is factually insufficient to prove either discharge or causation. When conducting a factual insufficiency review, we must consider all of the evidence in the record, including the evidence contrary to the judgment. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986) (per curium).

In this multifarious point of error, Brevard amasses the following evidence in its favor to show that the evidence was insufficient. First, Smith’s superintendent testified that Smith was never discharged and that Brevard never did anything he considered discriminatory against Smith because he filed a workers’ compensation claim. Brevard’s owner testified that if Smith had been terminated, a termination report would have been placed in his file, but no report had been made for Smith. Second, Brevard characterizes Smith as a person who had no intention of working. Smith filed for unemployment compensation five days before he was released by the doctor to return to work. He never checked back with Brevard for work other than his one phone call to the receptionist. Finally, Brevard points to evidence that suggests the company did attempt to get Smith back to work. The owner testified that he attempted to bring Smith back on duty for light work in October 1991. The owner also testified that he was unable to reach Smith to offer him work because Smith did not answer at any of the four phone numbers he had available.

Most of this evidence is not probative. For example, Brevard’s attempts to provide light duty during October 1991 are irrelevant. The jury was asked whether Smith was discharged on or about March 6, 1992, not during October 1991. Nor do the subjective beliefs of Brevard’s superintendent have probative force. See Continental Coffee, 937 S.W.2d at 452.

*6 We conclude the evidence contrary to the jury’s verdict does not outweigh the previously cited evidence supporting the verdict. This conclusion is enhanced by the inconsistencies in the testimony of Brevard’s witnesses. For example, each time Smith pressed the owner of Brevard about his purported attempts to contact Smith, he was unable to verify his attempted contacts. Although he claimed the phone number left by Smith was not valid, he could not produce the phone number from Smith’s file. He also admitted he did not have a copy of any contact between his attorney and Mr. Smith. The owner also made a number of other statements that he admitted he was unable to verify, such as contacting Smith about a job through Brevard’s attorney and notifying the Workers’ Compensation Commission that Smith could work light duty in October of 1991. While there is some evidence to support Brevard’s contentions, we cannot disturb the credibility determination made by the jury. This court is not a fact finder, and we may not pass upon the credibility of the witnesses or substitute our judgment for that of the trier of fact. Cain, 709 S.W.2d at 176. We overrule the third point of error.

Punitive Damages

Although not specifically labeled a cross-point, Smith contends the trial court erred in submitting a charge to the jury without his proposed questions on exemplary damages. Brevard contends that the evidence does not support punitive damages questions and that the proposed questions are not substantially correct.

In Continental Coffee, the Texas Supreme Court held that the employee must show actual malice on the part of the employer before the employer is liable for punitive damages. Id. at 452. Implied or legal malice exists when wrongful conduct is intentional and without just cause or excuse. Id. The Continental Coffee Court reasoned:

By requiring evidence of ill-will, spite, or a specific intent to cause injury to the employee, courts will ensure that only egregious violations of the statute will be subject to punitive awards.

Id. at 454.

We find no evidence in the record to support ill-will, spite, or a specific intent to harm Smith on the part of Brevard. Nor does Smith point to any such evidence other than his claim that Brevard intentionally did not offer Smith work. Indeed, at oral submission, Smith maintained that in every retaliation case, the employer is subject to punitive damages because Brevard’s actions were intentional and without excuse. However, Continental Coffee clearly rejects such an implied malice standard. Id. at 454. We conclude that no evidence in the record supports the submission of a punitive damage issue to the jury, and the trial court did not err in refusing to submit the questions to the jury. We overrule Smith’s point of error.

*7 The judgment of the trial court is affirmed.



Question number one of the jury charge asked, “Did Brevard discharge Robert Smith on or about March 6, 1992?” The jury answered “yes.” The jury also answered “yes” to each of the following sub-questions of question number two: “Did Brevard discharge Robert Smith in violation of the Texas Workers’ Compensation Act because he in good faith-a. has filed a claim? b. has hired a lawyer to represent him in a claim? c. has instituted or caused to be instituted a proceeding under the Texas Workers’ Compensation Act?” The jury awarded $15,000 for lost wages and $7,500 for mental anguish.


While we do not believe the assertions contained in the letter are probative, the fact that Brevard never contacted Smith’s attorney after receiving the letter to notify Smith that work was available has some probative force.

End of Document