MEMORANDUM OPINION
No. 04-07-00151-CV
Orion Marketing Group, Inc.,
Appellant
v.
Harold R. Morris,
Appellee
From the County Court At Law No. 10, Bexar County, Texas
Trial Court No. 295262
Honorable Timothy Johnson, Judge Presiding
Opinion by: Rebecca Simmons, Justice
Sitting: Catherine Stone, Justice
Karen Angelini, Justice
Rebecca Simmons, Justice
Delivered and Filed: February 20, 2008
AFFIRMED IN PART, REVERSED AND RENDERED IN PART
Appellee Harold R. Morris (“Morris”) filed a lawsuit against his former employer, Orion Marketing Group, Inc. (“Orion”) for retaliation and discrimination. The jury found in favor of Morris and awarded actual, compensatory, and exemplary damages. The main issues on appeal are (1) whether the trial court erred in submitting instructions containing circumstantial evidence factors to the jury and (2) whether the plaintiff met his evidentiary burden for his exemplary damages claim. Because there is no evidence to support the jury’s finding of malice, we reverse, in part, the judgment of the trial court and render judgment that Morris take nothing with regards to his claim for exemplary damages and affirm the remainder of the judgment.
Background
Morris started working at Orion in February of 2001. On April 10, 2003, Morris suffered a work-related accident injuring both of his shoulders. As a result, he was hospitalized for about three weeks and filed a claim for workers’ compensation with the Texas Workforce Commission.
Morris returned to work at Orion in September of 2003, with restrictions from his doctor allowing him to work light duties for about four hours a day. Orion, however, did not return Morris to his prior position as “Quality Assurance Manager” but instead assigned Morris to telephone operator duties. Morris’s pay was reduced. In February of 2004, Morris began working on a full-time basis.
Orion terminated Morris’s employment on June 7, 2004. On May 12, 2006, Morris filed a lawsuit against Orion claiming that he was demoted and terminated because he filed a workers’ compensation claim. The jury found that Orion discharged or discriminated against Morris because he filed a workers’ compensation claim and awarded damages. The jury also found the harm to Morris resulted from malice and awarded exemplary damages. This appeal ensued.
Jury Charge Error
Generally, in issues one and two, Orion claims the trial court erred in submitting Question One to the jury because (1) it fails to track the wording of Section 451.001 of the Texas Labor Code; (2) it exceeds Section 451.001 by instructing the jury on arbitrary points, including providing the jury a list of circumstantial factors leading the jury to make a finding of employment discrimination; and (3) it fails to include the word “and” in the list of circumstantial factors.
Question One of the jury charge states:
D[id] Orion Marketing Group Inc., discharge or discriminate against Harold R. Morris because he filed a workers’ compensation claim, or instituted a workers’ compensation claim in good faith?
Section 451.001 of the Texas Labor Code provides that no person may discharge or in any other manner discriminate against an employee because the employee has instituted or caused to be instituted in good faith any proceeding under the Texas Workers’ Compensation Act.
An employee institutes a worker’s compensation proceeding in good faith when he reports his job related injury to his supervisor.
In determining whether an employee has proved by a preponderance of the evidence that an employer discharged or discriminated against an employee you may consider the following
(a) whether the person terminating the employee had knowledge of his job related injury;[1]
(b) whether a negative attitude was expressed by Orion toward the employee’s injured condition;
(c) whether the employer adhered to establish company policies regarding the employee;
(d) whether the employee experienced discriminatory treatment as compared to other similarly-situated employees;
(e) whether the reason provided by the employer for the employee’s discharge was false.[2]
Assuming, without deciding, the trial court erred in submitting the instructions, we conclude there is no reversible error.
In determining whether an alleged error in submitting instructions to the jury is reversible, “the reviewing court must consider the pleadings of the parties, the evidence presented at trial, and the charge in its entirety.” Island Recreational Dev. Corp. v. Republic of Tex. Sav. Ass’n, 710 S.W.2d 551, 555 (Tex. 1986). The alleged error will constitute reversible error only if it “was reasonably calculated to and probably did cause the rendition of an improper judgment.” Reinhart v. Young, 906 S.W.2d 471, 473 (Tex. 1995). More specifically, in order to constitute reversible error, we must conclude that the instructions in Question One caused the case to be decided differently than it would have been without such instructions. Id.; see Bed, Bath & Beyond, Inc. v. Urista, 211 S.W.3d 753, 759 (Tex. 2006).
Orion claims that submitting the instructions was reversible error because the instructions “lowered [Morris’s] burden of proof, and it led the jury to an affirmative answer on the issue of employment discrimination.” Morris’s burden was to establish that his termination would not have occurred when it did if he had not filed his workers’ compensation claim. See Continental Coffee Prods., Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996). There is no dispute that Morris filed a workers’ compensation claim and that his employment was terminated. The issue, here, is one of causation.
In Continental Coffee Prods., Co. v. Cazarez, 937 S.W.2d 444, 451 (Tex. 1996), the supreme court provided a nonexclusive list of factors that could establish the causal link between the filing of a workers’ compensation claim and the employment termination. Specifically, the supreme court stated:
[c]ircumstantial evidence sufficient to establish a causal link between termination and filing a compensation claim includes: (1) knowledge of the compensation claim by those making the decision on termination; (2) expression of a negative attitude toward the employee’s injured condition; (3) failure to adhere to established company policies; (4) discriminatory treatment in comparison to similarly situated employees; and (5) evidence that the stated reasons for the discharge was false.
Id. These are the same factors listed in the instructions. As evidence that the jury relied on these instructions, Orion notes that the jury placed a “yes” next to the first factor, which suggests that it was the only factor the jury relied on. However, the record reveals there is evidence supporting several additional factors.
Linda Seringer, Orion’s Director of Human Resources was aware that Morris had filed a workers’ compensation claim prior to his termination. The termination letter that Seringer provided Morris stated he was being terminated because he had not worked his daily or weekly scheduled hours and his “‘Day Off Request’ form was not signed by [his] supervisor and is not valid.” Seringer’s testimony at trial regarding the Day Off Request form was inconsistent. Seringer testified that “[Morris] wouldn’t have been terminated had this form not come in after he was – after he was back from his vacation.” Seringer also testified that Morris never turned in the Day Off Request form. Both of these statements conflicted with the “Work Separation Details” form, submitted to the Texas Workforce Commission, wherein Seringer stated that Morris gave the form to the company trainer, instead of his manager.
Morris testified that, prior to leaving for vacation, he turned in the Day Off Request form and that a floor manager told him it was approved. He further testified that he had always followed this procedure in requesting days off. Kale Harris, a former employee of Orion, testified that the procedure for requesting time off was to turn in the Day Off Request form to a floor manager, but he was not sure what happened after submitting the form. Harris also testified that, on at least one occasion, he received the Day Off Request form from the floor manager after he returned from his vacation. Harris identified the company trainer, to whom Morris allegedly gave his form, as a floor manager.
Orion’s reasons for terminating Morris’s employment were inconsistent and there is some evidence the alleged reason for termination was pretextual. The record shows that upon Morris’s return to work from his injury, he was demoted and his pay reduced. There was testimony that Orion questioned Morris’s inability to work an eight hour shift. The employee handbook at Orion did not address the procedure for requesting time off. There was testimony that Morris did not receive written warnings, like other employees, prior to his termination. The person terminating Morris had knowledge of his job related injury.
Reviewing the entire record, there is no evidence that the jury inappropriately relied on the questionable instructions or that the jury was confused. Regardless of the instructions, there is evidence to support the trier of fact’s finding that his termination would not have occurred when it did if he had not filed his workers’ compensation claim. Thus, the evidence in this case fails to indicate that the instructions in Question One caused the case to be decided differently than it likely would have been without the instructions. Accordingly, even if the trial court erred in submitting the instructions, the record fails to show that such error constitutes reversible error. See Bed, Bath & Beyond, Inc., 211 S.W.3d at 759 (stating “when considering the entire record in this case, which provides no clear indication that the instruction probably caused the rendition of an improper verdict, we must conclude that the trial court’s submission of the instruction was harmless”). We overrule Orion’s issues number one and two.
Sufficiency of the Evidence
In issue number three, Orion argues that there is no evidence or factually insufficient evidence to support the jury’s finding of malice. Contingent on issue three, Orion asserts that because there is no evidence to support the jury’s finding of malice, the jury’s award of exemplary damages should be disregarded.
The trial court submitted to the jury the following definition:
“Malice” means a specific intent by Orion Marketing Group Inc. to cause substantial injury or harm to Harold R. Morris.
This definition differs from the one pronounced in Continental Coffee, 937 S.W.2d at 452. Because there was no objection, however, we review the evidence of malice in light of the submitted definition. City of Fort Worth v. Zimlich, 29 S.W.3d 62, 71 (Tex. 2000). Nonetheless, “an act will not be deemed malicious and so warranting punitive damages, merely because it is unlawful or wrongful.” Continental Coffee, 937 S.W.2d at 454. Thus, we turn to whether there is sufficient evidence to support the jury’s finding that Orion engaged in retaliatory conduct with the intent to cause Morris substantial injury.
A. Standards of Review
When a party, without the burden of proof, challenges the legal sufficiency of the evidence, an appellate court considers all of the evidence in the light most favorable to the prevailing party, indulging every reasonable inference in that party’s favor. Associated Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 285-86 (Tex. 1998); Ned v. E.J. Turner & Co., 11 S.W.3d 407, 408 (Tex. App.—Houston [1st Dist.] 2000, pet. denied). “A corollary to this requirement is that a court should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible. This does not mean that a court must disregard all evidence that does not support the finding.” Southwestern Bell Telephone Co., v. Garza, 164 S.W.3d 607, 627 (Tex. 2004),
If there is more than a scintilla of evidence to support the finding, the appellate court must uphold it. Formosa Plastics Corp. USA v. Presidio Eng’rs and Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998). 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 no more than a scintilla and, in legal effect, is no evidence. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004) (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983)). However, if the evidence supplies some reasonable basis for differing conclusions by reasonable minds as to the existence of a vital fact, then there is legally sufficient evidence. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003).
B. Analysis
There was some evidence that Orion’s reasons for termination were false. Orion gave multiple inconsistent reasons for terminating the employment of Morris, which the jury could have considered as a pretext. In the “Work Separation Details” form to the Texas Workforce Commission, Linda Seringer wrote that Morris missed three days without obtaining permission from his supervisor and she had previously warned Morris that he needed to work his scheduled hours. Yet, other evidence suggested that the warnings Linda gave to Morris were that if he failed to work at least 35 hours a week he would not be able to maintain his health insurance benefits. Linda further wrote that Morris handed the Day Off Request form to a company trainer instead of his manager. At trial, there was testimony that the company trainer was a floor manager. There was also evidence that Morris did not receive a warning prior to termination like other individuals who had not filed a workers’ compensation claim.
In Southwestern Bell Telephone Co., v. Garza, 164 S.W.3d 607 (Tex. 2004), the supreme court addressed whether there was legally sufficient evidence to support the jury’s finding that Southwestern Bell acted with malice in terminating the employment of Garza for filing a workers’ compensation claim. The court noted the following evidence:
• Gonzalez-implied Garza was a bully; told Rider he had long-term problems with Garza and was “fed up” while allowing Garza to return to outside work; went out of his way to see that Garza was punished, even after Garza was no longer under his supervision; distorted Garza’s safety record, blowing small incidents out of proportion, even though Garza continued to be rated as satisfactory on safety two days after discipline was imposed; gave Rider a second report that was a diatribe against Garza;
• Rider-admitted he was personally familiar with Garza, although he had some 500 employees under his supervision, and pressed for having Garza disciplined without a determination that Garza was at fault in the accident with Hernandez; severely disciplined Garza while calling him one of SWBT’s best linemen; faulted Garza’s safety record as a lineman but offered Garza the same work as an independent contractor;
• the discipline imposed on Garza was not required by SWBT policies;
• the union meetings following Garza’s discipline were a sham, or as Rider put it, “window dressing”;
• after discipline was imposed, Garza was assigned demeaning work, humiliating him in front of his co-workers;
• Hernandez was not disciplined.
Id. at 628. The court then reviewed other undisputed evidence that militated against a finding of malice. Id. Despite the recited evidence, the court was unable to conclude that the evidence was sufficient to allow a reasonable trier of fact to form a firm belief or conviction that Southwestern Bell acted toward Garza with malice. Id. Much like in Garza, the acts of Orion show unlawful conduct but do not rise to the level of egregiousness sufficient to support a finding that Orion intended to cause substantial injury or harm to Morris.
Further, there was undisputed evidence that Orion did not act with malice and we cannot disregard that evidence. Id. at 629 (stating that “the standard of review requires that we credit evidence the jury could have believed without disregarding undisputed evidence”). Linda Seringer and her husband, Joe Seringer, visited Morris in the hospital. Orion filed the workers’ compensation claim for Morris. After Morris returned to full-time duties, Orion offered flexible hours so that he could meet his required forty hour work week.
As additional evidence of malice, Morris refers to emails he received from Deborah Costello-Miller, an employee of Orion. Costello-Miller was a “tele-services representative” with Orion and corresponded with Morris after his termination. In one of these emails, dated June 14, 2004, Costello-Miller, in relevant part, states: “I wanted to tell you that they were just looking for a way to get rid of you because you cost [L]inda money for your injury but there’s no way to prove it.”[3] Costello- Miller’s statement expresses a suspicion that Morris was fired because he filed a workers’ compensation claim. None of Costello-Miller’s emails or testimony explained the basis for her conclusion. Costello-Miller’s statement constitutes no more than her subjective belief and unsupported conclusion. If the evidence does no more than create a mere surmise or suspicion of fact, less than a scintilla of evidence exists. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003); see Southwestern Bell Telephone Co., v. Garza, 164 S.W.3d 607, 621 (Tex. 2004) (stating “evidence which does no more than create a mere surmise or suspicion cannot prove the truth of an allegation”). Costello-Miller’s statements are no evidence that Orion terminated Morris’s employment because he filed a workers’ compensation claim much less that Orion did so with malice. See Baptist Mem’l Healthcare Sys. v. Casanova, 2 S.W.3d 306, 309-10 (Tex. App.—San Antonio 1999, pet. denied) (disregarding as no evidence the witnesses’ testimony that the employer did not apply its leave of absence policy uniformly because the testimony was “no more than their subjective beliefs and unsupported conclusions”). Thus, Morris’s reliance on Costello’s email as some evidence of malice is misplaced.
Morris also notes as evidence of malice that Michael Seringer, Vice-President of Operations at Orion, threatened to file a countersuit against him and his attorney. However, this conduct occurred after the alleged retaliation and thus cannot serve as evidence that Orion engaged in retaliatory conduct with intent to cause substantial harm. As a result, the jury could not have relied on Seringer’s threat to infer a specific intent by Orion Marketing Group Inc. to cause substantial injury or harm to Morris.
The jury found that Orion terminated Morris’s employment in violation of Section 451.001. However, a violation of this statute is not enough to support an exemplary damages award. See Continental Coffee, 937 S.W.2d at 453-54. The record contains legally insufficient evidence to produce, in the mind of the trier of fact, a firm belief or conviction that the harm suffered by Morris resulted from malice. Therefore, Orion’s issues numbers three and four, relating to the sufficiency of the evidence and the award of exemplary damages, are sustained.
Conclusion
Orion failed to establish that the trial court’s actions, in submitting the instructions to Question One, constitute reversible error. The evidence to support the jury’s finding of malice for exemplary damages was legally insufficient. Accordingly, we reverse the trial court’s judgment in part and render a take-nothing judgment as to Morris’s claim for exemplary damages.[4] In all other respects, the trial court’s judgment is affirmed.
Rebecca Simmons, Justice
[1] The jury apparently noted a “Yes” at the end of subsection (a) of Question One.
[2] These factors were established in Continental Coffee Products Company v. Cazarez, 937 S.W.2d 444, 451 (Tex. 1996), as circumstantial evidence of the causal link between the plaintiff’s workers’ compensation claim filing and his employment termination.
[3] Notably, Costello-Miller testified that this email was from her but she did not write this statement. Costello-Miller did not elaborate on the content of the email.
[4] On appeal, Morris claims that Orion would be solely entitled to a remand for a new trial because it first challenged the legal sufficiency of the evidence in its motion for new trial. However, the record reveals that Orion filed a motion for judgment notwithstanding the verdict challenging the legal sufficiency of the evidence two days prior to filing a motion for new trial. Both the motion for judgment notwithstanding the verdict and the motion for new trial were denied by the trial court.