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

Joseph LESTER, Jr., Appellant

v.

HOUSTON COCA COLA BOTTLING COMPANY, Appellee

No. C14-90-00567-CV.

|

Sept. 5, 1991.

Before ROBERTSON, SEARS and DRAUGHN, JJ.

OPINION

DRAUGHN, Justice.

*1 Joseph Lester, Jr. appeals from a take-nothing judgment in his wrongful discharge suit against appellee, Houston Bottling Coca Cola Bottling Company [hereinafter Coca Cola]. In a sole point of error, appellant argues that the trial court erred in admitting certain evidence and improperly charged the jury on the substantive law pertaining to wrongful discharge. We affirm.

The record reflects that appellant was employed by Coca Cola as a route salesman. Appellant injured his back on January 7, 1983 and received medical care from a physician recommended by Coca Cola. Over the next eleven months, appellant reinjured his back five times. After one such injury, on November 2, 1983, appellant scheduled an appointment with Dr. Alexander E. Brodsky, an orthopedic surgeon. Brodsky examined appellant on November 4, 1983 and gave him a written form entitled “Back Instructions” which included the line: “work: OK” Brodsky testified, through deposition, that the instruction meant that appellant was free to return to work whenever he felt able and his symptoms permitted. Brodsky also testified that he was unsure whether or not he intended the form to constitute a work release when he filled it out. Appellant had subsequent appointments to see Brodsky on three occasions during the next two weeks, all of which he canceled or missed. During the period he was off, appellant did not present Coca Cola with a doctor’s authorization to return to work or one stating that he was under medical care and needed to remain off from work. When appellant returned to work on November 16, 1983, he was informed by his supervisor, James Mudd, that he needed a doctor’s release. Appellant returned later with the unsigned, undated form entitled “Back Instructions” and informed Mudd that he had obtained the form on the previous day, November 15, 1983. Larry Purcell, another employee of Coca Cola, contacted Brodsky’s office and was told that appellant had not seen the doctor since November 4, 1983 and had not yet been released to work. Appellant returned to Brodsky on November 18, 1983 and was given a work release.

Purcell and Mudd testified that appellant was terminated for violating company policy. Coca Cola’s General Company Rules provide:

Falsification of records or misrepresentation of material information will be grounds for discharge.

Appellant testified that Mudd informed him that the reason for his termination was that he misrepresented the “Back Instructions” form as a work release. Prior to trial, appellant filed a motion in limine seeking an order limiting Coca Cola from presenting any reasons for his termination other than the fact that appellant represented an improper form as a work release. The trial court denied the motion. At trial, Mudd testified that appellant also misrepresented that he had seen Dr. Brodsky on November 15, 1983 and that Brodsky gave him the “Back Instructions” on that date. Purcell, Coca Cola’s Loss Control Manager, testified that appellant’s failure to report to work or contact his department on November 4, 1983, the date of appellant’s first examination by Brodsky, also constituted grounds for termination. Appellant now argues on appeal that the trial court’s failure to grant his motion in limine and the admission at trial of allegedly additional reasons for his termination amounted to reversible error. We disagree.

*2 Appellant brought his action under the Workers’ Compensation Act which provides:

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.

TEX. REV. CIV. STAT. ANN. art. 8307c, Sec. 1 (Vernon Pamph. 1991). The burden of proof under the statute is on the discharged employee. Id. art. 8307c, Sec. 2. Once an employee in a suit under this article has established a causal link between termination and the employee’s claim for workers’ compensation benefits, the employer must rebut the alleged discrimination by showing a legitimate reason for the discharge. Hughes Tool Co. v. Richards, 624 S.W.2d 598, 599 (Tex. Civ. App.– Houston [14th Dist.] 1981, writ ref’d n.r.e.), cert. denied, 456 U.S. 991 (1982). The employee claiming retaliatory discharge does not have to prove that the filing of a workers’ compensation claim was the sole reason for discharge, only that proceedings under the Act were a determining factor behind the employee’s termination. Azar Nut Co. v. Caille, 720 S.W.2d 685, 687 (Tex. App.–El Paso 1986), aff’d, 734 S.W.2d 667 (1987).

Here, appellant testified that, in his opinion, he was discharged for filing a claim; however, the jury remained unconvinced. Indeed, appellant does not even attack the jury’s finding. Rather, appellant limits his appeal to the propriety of the evidence admitted concerning the reasons for his termination. He argues that Texas law does not allow an employer to later proffer a different reason for discharge when an employee has been told he was discharged for a particular reason. See Levy v. Jarrett, 198 S.W. 333 (Tex. Civ. App.–Amarillo 1917, no writ). The trial court refused to give appellant’s requested instruction on the Levy rule and appellant now assigns error to the trial court’s refusal. We disagree and find Levy to be inapplicable here.

Levy involved a dispute between an employee and his employer over sales commissions due at the end of a contract for employment. After the employer learned that the employee was planning to begin a competing business and requested the employee to terminate his contract early, the employee brought suit to collect on sales commissions due at the end of the contract. The employer attempted to defend the suit with allegations of disloyalty, unfaithfulness, disobedience, and failure to properly exercise his employment duties. The Amarillo Court of Appeals held that even if the acts of misconduct, other than the employee’s plan to enter into business for himself, would have justified the employee’s discharge, “they were not made the basis of the termination of the contract and would not affect [the employee’s] right to recover on it, as [the employer] at the time did not treat such acts as being a breach of the contract. . . .” Id. at 335 (emphasis added).

*3 Here, appellant brought an action for retaliatory discharge under the Texas Workers’ Compensation Act, not a breach of contract action. His attempt to tie his discharge to a workers’ compensation claim was unpersuasive to the jury because Coca Cola provided independent reasons for appellant’s termination. Coca Cola’s defense was that appellant violated company policy through misrepresentations to his supervisor as prohibited by the company rules. We find that all of the reasons for discharge proffered by Coca Cola entailed some form of misrepresentation on appellant’s part concerning his visits to and treatment by Dr. Brodsky. Therefore, Coca Cola did not present unrelated, alternate reasons for his termination to the jury as contended by appellant. Consequently, the trial court correctly denied appellant’s motion in limine, overruled appellant’s requested jury charge, and admitted the evidence showing appellant’s misrepresentations. We overrule appellant’s sole point of error.

Coca Cola has requested this court to impose damages on appellant under the Rules of Appellate Procedure. Rule 84 authorizes an appellate court to award a prevailing appellee an amount not to exceed ten times the taxable costs if the court determines that “an appellant has taken an appeal for delay and without sufficient cause. . . .” TEX. R. APP. P. 84. We decline to do so. Although we disagree with appellant’s point of error on appeal, we do not find his arguments to be so incorrect or ineffective as to constitute a frivolous appeal.

Accordingly, we affirm the judgment of the trial court.

Do Not Publish – TEX. R. APP. P. 90.