City of University Park v. Van Doren

• Decision Date: 27 November 2001
• Docket Number: No. 05-98-00887-CV.,05-98-00887-CV.
• Citation: 65 S.W.3d 240
• Parties: CITY OF UNIVERSITY PARK, Texas, Appellant, v. Thomas L. VAN DOREN, Appellee.
• Court: Texas Court of Appeals

65 S.W.3d 240

CITY OF UNIVERSITY PARK, Texas, Appellant, v. Thomas L. VAN DOREN, Appellee.

No. 05-98-00887-CV.

Court of Appeals of Texas, Dallas.

November 27, 2001.

Rehearing Overruled January 24, 2002.

Robert E. Hager, Nichols Jackson Dillard, Hager & Smith, LLP, Dallas, for Appellant.

Thomas L. Case, Thomas L. Case & Associates, P.C., Dallas, for Appellee.

Before Justices LAGARDE, MOSELEY, and FITZGERALD.

OPINION

KERRY P. FITZGERALD, Justice.

The City of University Park appeals the judgment rendered against it in favor of Thomas L. Van Doren following a jury trial in this workers' compensation discrimination case. The City brings issues asserting: (a) the evidence is legally insufficient to support the verdict; (b) Van Doren is judicially estopped from recovering for damages suffered after March 31, 1995; and (c) Van Doren cannot recover mental anguish damages. Van Doren brings one cross-issue asserting the trial court erred in refusing to order he be reinstated to his previous position. We resolve the City's issues against it and Van Doren's cross-issue in his favor.

FACTUAL BACKGROUND

Van Doren began working for the City's police department in 1984 in the rank of lieutenant. He was soon promoted to captain overseeing the patrol and administrative lieutenants, Leon Holman and Michael Brock. When the police and fire chief retired, Van Doren became the acting police and fire chief until the City hired the current police and fire chief, Robert Dixon. In about 1988, the City changed the titles, but not the duties, of Van Doren's, Holman's and Brock's positions: Van Doren became the assistant police chief, and Holman and Brock became captains. In 1991, Bob Livingston became the city manager, and he concluded the City had too many administrative employees. Within about six months after his arrival, Livingston determined that the assistant director of each department—the assistant police chief, assistant fire chief, assistant city manager, assistant finance director, and operations manager—were unnecessary positions and that the City should eliminate the positions through attrition.

Van Doren's position of assistant police chief was largely administrative, but he went on patrol occasionally to improve officer morale, to have greater contact with the officers, and to allow patrol supervisors to have some time off. In 1991, while on patrol, Van Doren injured his ankle getting out of a patrol car to subdue a robbery suspect. His condition was initially diagnosed as a sprain, but it did not improve beyond a certain point. Van Doren's injured ankle began to turn out, and this condition grew worse over time. He also suffered swelling and soreness in his ankle. In 1993, the injury was diagnosed as a torn and atrophied ligament. Van Doren's physician recommended a surgery requiring Van Doren to put no weight on the ankle for eight weeks following the surgery. Van Doren filed a workers' compensation claim. Luanne Best Hanford, the City's human resources director, notified the City's workers' compensation insurance carrier that Van Doren's claim was "suspect," and the carrier initially denied Van Doren's claim. After further investigating Van Doren's claim, the carrier concluded that the claim was covered, and it agreed to pay Van Doren workers' compensation benefits.

The City had a policy of providing salary continuation benefits, which is payment of the difference between the workers' compensation benefits and the employee's regular salary, for sixty days following an on-the-job injury. Van Doren requested that he be paid the salary continuation benefits during the first sixty days he would be off work following his surgery. Livingston initially denied Van Doren's request for salary continuation benefits because the City's policy stated the benefits would be paid for the first sixty days following the injury, and two years had passed since Van Doren's injury. However, Van Doren provided evidence that the City had paid another employee salary continuation benefits after the first sixty days. Van Doren also told Livingston that he could not afford the reduction in his pay and, because his duties were largely administrative, he could adequately perform his job from a wheelchair with his leg elevated, provided the City had complied with the Americans with Disabilities Act and had made its offices wheelchair accessible. Rather than make a wheelchair accommodation, Livingston agreed that Van Doren could receive salary continuation benefits.

During these disputes with the City over workers' compensation and salary continuation benefits, Van Doren continued to work, and the condition of his ankle worsened. He finally underwent surgery in September 1993. The operation required fusing his ankle and placing screws in the bones. Van Doren's ankle did not heal properly. In late February 1994, Van Doren told Hanford he feared his ankle problem would be permanent and that he might not be able to return to work "on full duty status." Van Doren ultimately underwent a second surgery in February 1994 to remove the screws. In March 1994, shortly after his second surgery, Van Doren wrote Hanford a letter asking her to prepare a retirement, disability, and severance package for him.

During the months Van Doren was away from the office undergoing and recovering from surgery, Holman and Brock took over Van Doren's duties. In late 1993 or early 1994, Livingston discussed with Hanford and Dixon the possibility of eliminating Van Doren's position. When Hanford informed Livingston of Van Doren's possible retirement, Livingston asked Dixon to determine whether the police department could operate without the assistant police chief position. In response to Livingston's request, Dixon asked Holman and Brock if performing Van Doren's duties appreciably increased their workload, and they reported to Dixon that performing Van Doren's duties did not appreciably increase their workload. Dixon had stressed in a performance review from May 1991 that Van Doren's position was "very critical." Nevertheless, in March 1994, Dixon reported to Livingston that the assistant police chief position could be eliminated.

Meanwhile, Van Doren's ankle improved following the second surgery. Van Doren rejected the severance and retirement packages Hanford and Livingston offered him, and he said he wanted to return to work. Van Doren testified that he "could do the assistant chief of police's duties." However, in May 1994, Dixon and Hanford notified Van Doren that his position would be eliminated in the next budget.

In the letter informing Van Doren of the elimination of his position, Hanford referenced the City's Policy for Implementation of a Reduction in Force, which concerned elimination of positions due to budgetary constraints during times of economic recession, and she attached a copy of that policy to the letter. However, at trial, Hanford admitted the policy was not applicable and the City did not follow its provisions.

Hanford also told Van Doren his resume would be kept on file and, for the next twelve months, he would be contacted to apply for any positions with the City for which he might be qualified. Although there were occasional police dispatcher and other vacancies, Hanford did not notify Van Doren about them. Hanford testified she considered Van Doren unqualified for the post of dispatcher because of his high absentee rate and his lack of alertness. Van Doren, however, testified that he was qualified for a number of positions with the City, including dispatcher, that became vacant in the year following the elimination of his position, but he was never contacted by Hanford about them. Dixon testified that Van Doren's presence as a dispatcher in the police headquarters would be deleterious to officer morale. Van Doren stated he could perform the task of the administrative police captain, which was Holman's position at the time.¹ Van Doren asked Dixon to demote him back to captain, with the corresponding salary cut. Dixon could, in turn, demote Holman to lieutenant, and demote one of the lieutenants to an existing police officer opening. Dixon testified he refused to make this series of demotions because it would hurt officer morale. Van Doren unsuccessfully applied for numerous police chief positions in Texas and Arkansas. Van Doren finally found employment as an investigator, but at a reduced salary from his assistant police chief position with the City.

Livingston testified that he submitted a proposed budget to the city council in August 1994. A cover memorandum recommended to the city council that the assistant police chief position be eliminated because it was unnecessary, which would save the City $90,000 per year. On September 14, 1994, the City passed two ordinances implementing the proposed budget and amending the City Pay Plan,² which eliminated Van Doren's position beginning October 1, 1994.³

Throughout the trial, considerable time was devoted to evidence of whether the assistant police chief position was purely administrative or whether the post required an ability to perform police patrol work, and the parties continue to disagree on this issue. Van Doren asserts that patrol is not part of the essential job function.⁴ In October 1990, Dixon answered a "Job Analysis Questionnaire," which inquired, amongst many categories, about the special physical requirements of the assistant police chief position. Dixon answered this query as follows: "Employee must be in good physical condition so as to effect arrest and work long hours if needed. [M]ust have emotional makeup to cope effectively with job stress." In 1992, the City hired a consultant to write job descriptions for the City's positions to comply with the Americans with Disabilities Act. For the physical requirements of the assistant police chief position, the 1992 job description stated, "Ability to sit, stand and transport self from building to building. Ability to attend...