America West Airlines, Inc. v. Tope

• Decision Date: 14 November 1996
• Docket Number: No. 08-95-00389-CV,08-95-00389-CV
• Citation: 935 S.W.2d 908
• Parties: AMERICA WEST AIRLINES, INC., Appellant, v. Michael TOPE, Appellee.
• Court: Texas Court of Appeals

Page 908

935 S.W.2d 908

AMERICA WEST AIRLINES, INC., Appellant, v. Michael TOPE, Appellee.

No. 08-95-00389-CV.

Court of Appeals of Texas El Paso.

Nov. 14, 1996.

Rehearing Overruled Dec. 18, 1996.

Eric J. Senske, Dallas, TX, Stacy R. Obenhaus, Gardere & Wynne, Dallas, TX, Dan Hartsfield, Gardere & Wynne, L.L.P., Dallas, TX, for Appellant.

R. Wayne Pritchard, Brandys Carson & Pritchard, P.C., El Paso, TX, for Appellee.

Before LARSEN, McCLURE and CHEW, JJ.

OPINION

LARSEN, Justice

America West Airlines, Inc. appeals from a judgment favoring plaintiff Michael Tope, the airline's former employee, in his suit for discriminatory termination under the Texas Worker's Compensation Act. In seven points of error, America West claims the evidence was neither legally nor factually sufficient to sustain the jury's finding that Tope was discharged in violation of the Texas Worker's Compensation Act, that the evidence established Tope failed to mitigate damages, and that the jury's award for mental anguish damages was without support in the evidence. In a cross-point, Tope urges that the trial court abused its discretion in excluding the testimony of Sylvian Gibson, a clinical social worker who had counseled Tope following his on-the-job injury and discharge. Subject to a voluntary remittitur of future mental anguish damages, we reverse and remand.

FACTS

Michael Tope began working for America West Airlines when he was twenty years old. For several years, he worked as a cross-utilized customer service representative ("CSR") in the airline's Lubbock, Honolulu, and El Paso stations. A CSR works as a ticket agent, gate agent, baggage service agent, operations agent, and ramp agent as assigned. In a small field station such as El Paso, most America West employees are cross-trained and cross-utilized CSRs. Tope disliked the customer contact involved with working the ticket counter, gate, and baggage service, so when a ramp position became available in September 1991, he applied for and received that job. Because he was no longer cross utilized, he accepted a pay reduction with the new assignment.

On November 3, 1991, while handling baggage on the ramp, Tope caught his left hand in the belt loader used to unload luggage from an aircraft. He was seriously injured. His co-workers took him to the hospital where Dr. Lawrence Vierra, an orthopedic surgeon, performed a seven and one-half hour surgery on Tope's hand. Almost immediately, he began extensive physical therapy to regain use of his hand, but in late February 1992, Dr. Vierra informed America West that Tope's injury would still require "at least one to two years for neurologic basic recovery" and that the outlook was "quite guarded" for return to outside ramp work and baggage handling. At that time, Vierra predicted that Tope would be unable to return to any heavy manual occupation, would not be able to expose his hand to cold, and that his eventual level of function would probably be office work.

On April 23, 1992, the El Paso city manager for America West, Staslie Zimmerman, ¹ wrote Tope citing Dr. Vierra's prognosis that Tope was unable to perform the duties of a CSR, and that it would require one to two years for his basic recovery. The letter stated:

Your unavailability leaves the Company no choice but to terminate your employment and this letter is to be considered notice of such action. Until June 1, 1992 you will be permitted to seek other positions within the Company for which you may be qualified and that will allow the restrictions in your physical abilities. I can provide you with openings which are currently available for your consideration. If you are unsuccessful in securing a position within this period the processing of your termination documentation will go forward.

Zimmerman offered to create a non cross-utilized job for Tope as baggage service representative. This job was not time sensitive, did not require rapid keyboard input under pressure, was indoors, and could be structured so it did not require lifting and carrying of luggage. Tope did not want to work baggage service, however, because it involved interacting with irate passengers whose bags had been lost or misrouted. He asked instead that Zimmerman create a job exclusively in operations for him. ² This she declined to do, but suggested that he apply in Phoenix or Las Vegas, large stations where there are dedicated operations positions. Tope did not want to relocate, so he did not apply for jobs outside of El Paso. On May 21, 1992, Zimmerman again wrote Tope, stating that he was suspended from employment with America West pending termination. There was evidence that Tope's termination papers had been prepared long before this, on the same day that the reserves on his compensation claim had been increased to $130,000, making it one of the most expensive compensation claims America West had ever experienced. Tope was formally terminated from America West on June 1, 1992. His doctor released him to return to light duty about one month later.

Tope went back to school for a time following his termination from America West. He then bought a small business, a Postal Annex, which he had just sold at the time of trial. Once he had received a full release from Dr. Vierra, he applied for work with Southwest Airlines. He was not working at the time of trial.

STANDARD OF REVIEW

America West challenges the legal and factual sufficiency of the evidence supporting the jury's liability findings and damage awards. When reviewing a legal sufficiency challenge, we consider only the evidence and inferences, when viewed in their most favorable light, that tend to support the jury's finding, and disregard all evidence and inferences to the contrary. Davis v. City of San Antonio, 752 S.W.2d 518, 522 (Tex.1988); Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex.1987). If such evidence amounts to more than a mere scintilla, that is more than a basis for mere surmise or suspicion, then the legal sufficiency challenge fails. Sherman v. First Nat'l Bank in Center, Texas, 760 S.W.2d 240, 242 (Tex.1988); Stafford, 726 S.W.2d at 16; Paragon Hotel Corp. v. Ramirez, 783 S.W.2d 654, 657 (Tex.App.--El Paso 1989, writ denied).

We evaluate a factual sufficiency challenge by reviewing all evidence and reasonable inferences therefrom and should be sustained only if the verdict is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). In making this evaluation, we may not simply substitute our judgment for that of the fact finder in the lower court, particularly with regard to assessing the credibility of the witnesses. Paragon, 783 S.W.2d at 658.

Plaintiff's cross-point involves the exclusion of expert testimony, which we review for abuse of discretion. E.I. du Pont de Nemours and Co., Inc. v. Robinson, 923 S.W.2d 549, 558 (Tex.1995). The test for abuse of discretion is not whether in the opinion of this court, the facts present an appropriate case for the trial court's action, nor whether this court would have ruled differently. Id. at 558; Loftin v. Martin, 776 S.W.2d 145, 146 (Tex.1989); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986). Rather, the test is whether the trial court acted without reference to any guiding rules or principles. Id.; Downer, 701 S.W.2d 238, 241-42.

Evidence of Discriminatory Conduct

The jury in this case found that America West discharged Michael Tope in violation of the Texas Worker's Compensation Act ("the Act"). ³ To prevail in a claim of wrongful termination under the Act, the employee must establish a causal link between the discharge and the employee's invocation of rights under the Act. Trevino v. Corrections Corp. of America, 850 S.W.2d 806, 808 (Tex.App.--El Paso 1993, writ denied). Plaintiff may show the causal connection by circumstantial evidence and by reasonable inferences arising from it. Acme Boot Co., Inc. v. Montenegro, 862 S.W.2d 806, 808 (Tex.App.--El Paso 1993, no writ). Circumstantial evidence that has been recognized as supporting a finding of unlawful discrimination includes: (1) the employer's knowledge of the compensation claim by those making the decision to terminate; (2) a negative attitude towards the employee's injured condition; (3) failure to follow company policy in disciplining the employee; (4) discriminatory treatment of the injured employee compared to other employees with the same disciplinary problems; and (5) providing incentives to refrain from reporting on-the-job injuries. See Paragon, 783 S.W.2d at 658-59. Plaintiff need not show that the compensation claim was the sole cause of the termination; evidence is sufficient if it shows the claim was a contributing factor in the employer's decision to discharge the employee. Investment Properties Management, Inc. v. Montes, 821 S.W.2d 691, 694 (Tex.App.--El Paso 1991, no writ); Azar Nut Co. v. Caille, 720 S.W.2d 685, 687 (Tex.App.--El Paso 1986), aff'd, 734 S.W.2d 667 (Tex.1987). Once the plaintiff has established a causal link, the burden shifts to the employer to show a legitimate reason for the discharge. Trevino, 850 S.W.2d at 808.

America West first contends that the evidence is factually and legally insufficient to support judgment for Tope because Tope did not prove a causal connection between his compensation claim and his discharge. America West maintains that the evidence establishes that Tope was discharged because he was physically unable to return to his job as ramp agent, he refused the job as baggage service agent which was offered to him and which would meet his physical restrictions, and he would not seek a position that would accommodate his restrictions at any other America West field station. That was certainly America West's theory at trial, but the jury having rejected it, we must review the evidence through the...