Borden, Inc. v. Guerra

• Decision Date: 30 June 1993
• Docket Number: No. 13-92-025-CV,13-92-025-CV
• Parties: 8 IER Cases 1570 BORDEN, INC. and Jim Guffey, Appellants, v. Arnold GUERRA, Appellee.
• Court: Texas Court of Appeals

Page 515

860 S.W.2d 515

8 IER Cases 1570

BORDEN, INC. and Jim Guffey, Appellants, v. Arnold GUERRA, Appellee.

No. 13-92-025-CV.

Court of Appeals of Texas,

Corpus Christi.

June 30, 1993.

Rehearing Overruled Aug. 31, 1993.

George Almaraz, Almaraz & Canales, McAllen, Rose Marie Glazer, Terence M. Murphy, Jones, Day, Reavis & Pogue, Dallas, for appellants.

Miguel A. Saldana, Brownsville, Ernesto Gamez, Jr., Law Offices of Ernesto Gamez, Jr., Brownsville, Larry Zinn, San Antonio, for appellee.

Before NYE, C.J., and GILBERTO HINOJOSA and FEDERICO G. HINOJOSA, Jr., JJ.

OPINION

GILBERTO HINOJOSA, Justice.

A jury found that appellants, Jim Guffey and Borden, Inc., wrongfully discharged and defrauded appellee, Arnold Guerra. Appellants challenge the jury's finding by thirteen points of error. We affirm the wrongful discharge award and reverse the award based upon fraud.

On September 28, 1988, appellee, twenty-five years of age, fell from his delivery truck and hit his head on the pavement. At the time of this accident, appellee had delivered milk products for Borden, Inc., for one year and five months. The accident occurred at Victoria Elementary School in Brownsville, Texas, at 2:30 p.m. Appellee testified that, when he fell from the truck, a case of milk fell on top of his head while he lay in the parking lot. He estimated that he was unconscious for approximately five minutes. When he awoke, blood issued from his head "like water." He went to the school nurse, who took him to Dr. Lee Dale Jones, his family doctor. Dr. Jones described the wound as a deep abrasion on the back of appellee's scalp, three to five centimeters long. Dr. Jones did not suture appellee's wound, but he cleaned and dressed it, prescribed analgesics, and gave him a tetanus booster.

Dr. Jones testified that Jim Guffey talked by phone to his secretary and approved appellee's treatment as a work-related injury. Guffey, a named defendant in the suit below, was Borden's branch manager for the Rio Grande Valley area. He testified that he completed an accident report for appellee on September 28, 1988, and sent it to the "profit center" in Corpus Christi for processing. The parties stipulated that Borden filed the workers' compensation claim for appellee and that appellee received compensation benefits.

Dr. Jones did not release appellee to work until October 4, 1988. Nonetheless, appellee returned to work immediately. He testified that, on the afternoon of his accident, when he returned to the Borden offices and presented Guffey with the doctor's excuse, Guffey "got mad," scoffed at his injury and the doctor's excuse, and told him to "go load your truck."

Appellee testified that, because he did not feel like working, he paid his friend, Enrique Almendariz, out of his own pocket to help him load and unload his delivery truck. Almendariz testified that appellee worked until 7:00 or 7:30 p.m. on the evening of his injury. The next day, appellee again called Almendariz for help. Almendariz testified that appellee paid him to help on his route two to three days a week for several weeks. Mario Galvan, appellee's supervisor, testified that he rode with appellee off and on for three to four months after the accident and that he never saw Almendariz. Galvan also testified that it would have been against company policy for Almendariz to ride with appellee in his delivery truck.

A memorandum written by Guffey reflects that Guffey sent Galvan with appellee on October 4, 1988, because, when Galvan told appellee that day to drive his route by himself, appellee "said he was still sick with a bad headache and began crying." Guffey testified that appellee worked October 4, 5, 6, and 7, but stopped working October 8, 1988. A payroll order written by Guffey reflects that, after October 8, 1988, appellee did not return to work and went on "lost time workman's compensation." Appellee did not return to work until November 16, 1988. During this time period, he provided work releases from doctors other than Dr. Jones, one of whom eventually approved his return to work on November 16, 1988.

Before appellee returned to work on November 16, 1988, he had never received a complaint from any customers, nor had he been documented by Borden for poor work performance. In fact, five weeks before his accident, appellee was promoted. However, after he returned to work, appellee was documented several times for poor work performance. His supervisor, Mario Galvan, testified that appellee was documented because he received five to six customer complaints. In total, appellee was documented on five days, November 19, 22, and 23, 1988, and again on January 3 and 4, 1989, for failing to keep milk supplies fresh and fully stocked. On January 4, 1989, Borden fired appellee for poor job performance.

Three of the last four complaints filed against appellee were filed by Abraham Duran on January 4, 1989, the same day appellee was fired. Duran was appellee's other supervisor. These were the first complaints that Duran had ever documented against appellee. Appellee testified that the first customer complaint against him on November 19, 1988, was not his fault because he had just returned to work and the backdated milk complained of could not have been left by him. Furthermore, the complaint was made by a woman who was a social acquaintance of Galvan.

Appellee testified that as an employee at Borden, Inc., he "felt like a slave." He stated that, in addition to his delivery duties, he had to wash Guffey's car, clean the rest rooms, and mop the offices, both before and after his accident. He said that the other drivers were not required to perform these activities.

Appellee testified that "either Galvan or Duran" told him two or three times that, if he did not file a workers' compensation claim, he would receive $25,000. Galvan testified that he overheard Duran say something about appellee getting $25,000. Duran testified that "someone" called him and said appellee might get $25,000. Duran did not know the identity of the caller, but assumed it was someone from Borden because the voice sounded familiar, and he had "talked to him before." Duran testified that he called appellee to his office about a week before he was fired to tell him about the $25,000. He also testified that he told appellee about the money because he was "excited for him," and not because he intended to dissuade him from filing a workers' compensation claim. Appellee never received the $25,000.

In their first point of error, appellants argue that no evidence supports the jury's finding that appellee filed a workers' compensation claim. It is undisputed that Borden, and not appellee, filed the workers' compensation claim with Liberty Mutual. However, we do not find this fact determinative.

The two subparts to question 1 in the charge of this case inquired whether "Borden, Inc., by and through Jim Guffey" discharged appellee because he a) filed a workers' compensation claim, or b) caused a proceeding to be instituted under the Texas Workers' Compensation Act. ¹ An affirmative finding by the jury on either one of the two subparts supports the trial court's judgment, because the accompanying instruction required an affirmative answer to either a or b to award damages. Therefore, even if there is no evidence that appellee filed a claim, as appellants argue, because appellants do not challenge the jury's finding that appellee "caused a proceeding to be instituted" under the Act, the jury's finding to question 1 is supported by the evidence. We cannot, as the reviewing court, sua sponte review the sufficiency of the evidence of the remaining subpart. See TEX.R.APP.PROC. 74(d).

Moreover, an employee who "caused a proceeding to be instituted under the Workers' Compensation Act" falls within the protection of article 8307c. ² See Texas Steel Co. v. Douglas, 533 S.W.2d 111, 115-16 (Tex.Civ.App.--Fort Worth 1976, writ ref'd n.r.e.). Notifying an employer of an injury and completing a required report of injury is enough to support a finding that an employee had "filed a claim" for workers' compensation. Cigainero, 799 S.W.2d at 389. "To hold otherwise would frustrate the purposes of the Act." Id. In Hunt v. Van Der Horst Corp., 711 S.W.2d 77, 79 (Tex.App.--Dallas 1986, no writ), an employee "instituted a proceeding" under the Act, even though he had not completed an accident report, when he was injured at 2:00 p.m., told his supervisor that he was going to see a doctor because of his injury, and then received a telephone call at 3:30 p.m. informing him that he was fired. The court observed that "[t]o hold otherwise would be to reward employers who are particularly adept at anticipating and quick in firing potential workers' compensation claimants over those who are slower to retaliate." Id. at 80.

Article 8307c unequivocally protects injured employees who merely "caused to be instituted, in good faith, any proceeding under the Texas Workers' Compensation Act...." The Act does not limit protection to employees who personally "filed a claim." An injured employee "caused a proceeding to be instituted" under the Act when, as in this case, the employee reported the injury to the employer and that employer filed a claim on behalf of the injured employee. To insulate an employer from liability for wrongful discharge merely because the employer "benevolently" takes action that the employee would have eventually taken anyway might enable dishonest employers with superior knowledge and resources to side-step the punitive policy considerations underlying 8307c. Appellants' first point of error is overruled.

In their second and third points of error, appellants argue that the evidence is factually and legally insufficient to support a judgment on appellee's wrongful discharge claim. Citing NLRB v. Transp. Mgmt. Corp., 462 U.S. 393, 403-04, 103 S.Ct. 2469, 2475-76, 76 L.Ed.2d 667 (1983), and Mt. Healthy City School Dist. Bd. of...