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

Barbara J. SHEPHERD, Appellant

v.

BAKER HUGHES, INC., Baker Hughes Drilling Equipment Co., and Eastman Christensen Co., Appellees

No. 14-96-00917-CV.

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June 19, 1997.

OPINION

YATES, Justice.

*1 Appellant, Barbara J. Shepherd, appeals from a judgment on the jury’s verdict in favor of appellees, Baker Hughes, Inc., Baker Hughes Drilling Equipment Co., and Eastman Christensen Co., in a retaliatory discharge case. In two points of error, Shepherd claims the trial court erred in (1) submitting an improper causation instruction to the jury; and (2) overruling appellant’s Motion for New Trial, based on the submission of an improper causation instruction to the jury. We affirm.

Background

Shepherd was working for Eastman Christensen Co., a Baker Hughes, Inc. company, when she sustained personal injuries on October 21, 1991, in the course of her employment. Shepherd filed a worker’s compensation claim. Subsequently, her employment was terminated on March 2, 1992. On February 24, 1994, Shepherd filed suit alleging that appellees unlawfully discharged her from employment because she filed a claim under the Workers’ Compensation Act, which provides:

Section 1. 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 Workers’ Compensation Act, or has testified or is about to testify in any such proceeding.

Tex. Rev. Civ. Stat. Ann. art. 8307c (codified without substantive changes at Tex. Lab. Code § 451.001).

The case was tried to a jury, which returned a verdict favorable to appellees. On April 1, 1996, in accordance with the jury verdict, the trial court entered a take nothing judgment. On April 29, 1996, Shepherd filed a motion for new trial, which the trial court denied on May 20, 1996.

Although Shepherd timely perfected her appeal, she failed to timely file the statement of facts. On August 16, 1996, Shepherd requested an extension of time to file the statement of facts, which was denied on August 29, 1996. Even though there is no statement of facts on file which may be considered by the court, the court may still consider questions of law, including an erroneous jury charge. Caramanian v. Houston Indep. Sch. Dist., 829 S.W.2d 814, 816 (Tex.App.-Houston [14th Dist.] 1992, no writ) (citing Segrest v. Segrest, 649 S.W.2d 610, 611 (Tex.), cert. denied, 464 U.S. 894, 104 S.Ct. 242, 78 L.Ed.2d 232 (1983)); Krasniqi v. Dallas County Child Protective Servs., 809 S.W.2d 927, 933 (Tex.App.-Dallas 1991, writ denied).

Standard of Causation

Shepherd alleges the trial court erred by submitting an improper charge to the jury because the instruction on causation informed the jury that she had to establish that the filing of a workers’ compensation claim was the sole reason for her discharge, rather than “a determining factor” in her discharge. Shepherd further asserts the trial court erred in denying her motion for new trial, also based on the causation instruction.

*2 The Texas Supreme Court, addressing the Texas Whistleblower Act, articulated the standard of causation for that act and “other similar acts,” including Tex. Lab. Code § 451.001. Department of Human Servs. v. Hinds, 904 S.W.2d 629, 636 (Tex.1995). The supreme court, expressly rejecting the sole causation standard, stated “the employee’s protected conduct must be such that, without it, the employer’s prohibited conduct would not have occurred when it did.” Id. at 634, 636. The Hinds court noted that this standard “best protects employees from unlawful retaliation without punishing employers for legitimately sanctioning misconduct or harboring bad motives never acted upon.” Id. at 636. Applying the above standard, the court enunciated the proper jury instruction:

An employer does not discriminate against an employee for reporting a violation of law, in good faith, to an appropriate law enforcement authority, unless the employer’s action would not have occurred when it did had the report not been made.

Id. at 637.

Recently, the Texas Supreme Court held that the causation standard announced in Hinds is equally applicable to Tex. Lab. Code § 451.001. Continental Coffee Prods. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996). The court further held that an instruction similar to the one announced in Hinds should be given under § 451.001. Id.

The instructions submitted to the jury in this case stated:

Barbara Shepherd has brought this lawsuit under the Texas Worker’s Compensation Act. The Act states that no person may discharge or in 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 Worker Compensation Act, or has testified or is about to testify in any such proceeding.

A constructive discharge occurs when an employer makes conditions so intolerable that a reasonable person in the employee’s position would have felt compelled to resign. The determinative factor is not the employer’s intentions, but the effect of the conditions on a reasonable employee.

Baker Hughes does not violate the Texas Workers’ Compensation Act, unless Barbara Shepherd would not have been discharged but for her filing a worker’s compensation claim.

It is not a violation of the Texas Workers’ Compensation Act if Baker Hughes, Inc. had a legitimate, nondiscriminatory basis for terminating Barbara Shepherd. A legitimate nondiscriminating reason for Baker Hughes’ decision to discharge Barbara Shepherd is any reason or explanation unrelated to Barbara Shepherd’s workers’ compensation claim.

*3 Shepherd objected to this instruction and proposed the following instruction:

To prevail on a claim of wrongful termination as a result of a worker’s compensation injury, the employee must establish a causal link between his or her discharge and his or her filing of a worker’s compensation claim, but the employee is not required to show that the filing of a worker’s compensation claim was the sole cause of his or her termination, but the employee must show that it was a determining factor in the discharge decision.

Moreover, once the employee establishes a causal link between his or her discharge and the filing of a worker’s compensation claim, the burden shifts to the employer to show that the employee was discharged for a legitimate reason.

Shepherd argues she must only show that filing a claim was “a determining factor.” In support of this argument, she cites to a number of Texas and federal cases. These cases, however, predate the two most recent Texas Supreme Court cases specifically addressing this issue.

Shepherd further claims the “but for” language in the charge instructed the jury that she had to show her claim was the sole reason for her discharge. The supreme court observed that the causation standard is the same as the “but for” standard. The Hinds court, comparing other states applying the same causation standard, noted that South Carolina’s statute provides: “no action may be brought under the whistleblower statute unless ‘any previous proceedings have resulted in a find that the employee would not have been disciplined but for the reporting of the alleged wrongdoing.’ ” Id. at 636 (citing S.C. Code Ann. § 827-30(A) (Law. Co-op Supp.1993)) (emphasis added).

We conclude the trial court submitted the proper causation standard in the charge and did not err in denying Shepherd’s motion for new trial. Therefore, we overrule both points of error.

Accordingly, the judgment of the trial court is affirmed.