Haggar Clothing Co. v. Hernandez

• Decision Date: 21 August 2003
• Docket Number: No. 13-01-009-CV.,13-01-009-CV.
• Citation: 164 S.W.3d 407
• Parties: HAGGAR CLOTHING COMPANY a/k/a Haggar Apparel Company, Appellant, v. Altagracia HERNANDEZ, Appellee.
• Court: Texas Supreme Court

164 S.W.3d 407

HAGGAR CLOTHING COMPANY a/k/a Haggar Apparel Company, Appellant, v. Altagracia HERNANDEZ, Appellee.

No. 13-01-009-CV.

Court of Appeals of Texas, Corpus Christi-Edinburg.

August 21, 2003.

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Jorge C. Rangel, Rangel Law Firm, Corpus Christi, Neil E. Norquest, Chris A. Brisack, Norquest & Brisack, LLP, McAllen, for appellant.

John G. Escamilla, Watts Law Firm, L.L.P., McAllen, Aaron Pena, Jr., Aaron Pena, Jr. & Associates, Edinburg, for appellee.

Before Justices YANEZ, CASTILLO, and DORSEY.¹

MEMORANDUM OPINION

Opinion by Justice YANEZ.

Appellant, Haggar Clothing Company a/k/a Haggar Apparel Company ("Haggar"), appeals a jury verdict finding that it discharged appellee, Altagracia Hernandez, in retaliation for filing a worker's compensation claim. See Tex. Lab.Code Ann. § 451.001 (Vernon 1996). In seven issues, Haggar challenges the legal and factual sufficiency of the evidence supporting the jury's findings of: (1) retaliation; (2) actual malice; (3) punitive damages in the amount of $1,400,000; and (4) actual damages. Haggar also contends: (1) the award of punitive damages is grossly excessive in violation of the excessive fines and due process clauses of the U.S. Constitution (issue four); (2) the trial court erred in admitting certain "other incidents" evidence (issue six); and (3) the jury charge contained errors which entitle Haggar to a new trial. We affirm the trial court's judgment.

The facts of this case are known by the parties, and we do not recite them here. Furthermore, because all issues are well-settled, we issue this memorandum opinion. See Tex.R.App. P. 47.4

Standard of Review

When, as here, the party without the burden of proof challenges the legal sufficiency of the evidence, we will sustain the challenge only if, considering the evidence and inferences in the light most favorable to the finding, there is no more than a scintilla of evidence supporting it. See Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995). If there is more than a scintilla of evidence to support the finding, then the no-evidence challenge fails. Formosa Plastics Corp. USA v. Presidio Eng'rs and Contractors, Inc., 960 S.W.2d 41, 48 (Tex.1998); Hines v. Comm'n for Lawyer Discipline, 28 S.W.3d 697, 701 (Tex.App.-Corpus Christi 2000, no pet.). If the evidence supplies some reasonable basis for differing conclusions by reasonable minds as to the existence of a vital fact, then there is some evidence. See Kindred v. Con/Chem, Inc. 650 S.W.2d 61, 63 (Tex.1983); Hines, 28 S.W.3d at 701. When reviewing a no-evidence point, we consider only the evidence supporting the finding and disregard all evidence to the contrary. State Farm Fire & Cas. Co. v. Simmons, 963 S.W.2d 42, 44 (Tex.1998); Cont'l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996). 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. See Kindred, 650 S.W.2d at 63; Hines, 28 S.W.3d at 701.

In reviewing factual sufficiency issues challenging a jury verdict, we consider and weigh all of the evidence, not just the evidence that supports the verdict. Krishnan v. Ramirez, 42 S.W.3d 205, 211 (Tex.App.-Corpus Christi 2001, pet. denied) (citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986) (per curiam)). We set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996); Krishnan, 42 S.W.3d at 212. The jury, as fact finder, is the judge of the credibility of witnesses and weight to be accorded their testimony. Krishnan, 42 S.W.3d at 212. Because the appellate court is not the fact finder, it may not substitute its own judgment for that of the trier of fact, even if a different answer could be reached on the evidence. Id. The amount of evidence necessary to affirm a judgment is far less than that which is necessary to reverse a judgment. Id. It is particularly within the province of the jury to resolve matters which are necessarily speculative and not subject to precise mathematical calculations, such as physical pain and mental anguish. GreenPoint Credit Corp. v. Perez, 75 S.W.3d 40, 45 (Tex.App.-San Antonio 2002, pet. granted, judgm't vacated w.r.m.); White v. Sullins, 917 S.W.2d 158, 162(Tex.App.-Beaumont 1996, writ denied); Pipgras v. Hart, 832 S.W.2d 360, 365-66 (Tex.App.-Fort Worth 1992, writ denied). When there is conflicting evidence, the jury's verdict is generally regarded as conclusive. Dallas County v. Holmes, 62 S.W.3d 326, 329 (Tex.App.-Dallas 2001, no pet.).

When both legal and factual sufficiency issues are raised, we are required to rule on the legal insufficiency issue first. Glover v. Texas Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex.1981). If we find some evidence to support the verdict, we will then review the claim of factually insufficient evidence. Texas Indus., Inc. v. Vaughan, 919 S.W.2d 798, 801 (Tex.App.-Houston [14th Dist.] 1996, writ denied).

Applicable Law

Section 451.001 of the labor code provides, in pertinent part:

A person may not discharge or in any other manner discriminate against an employee because the employee has:

(1) filed a workers' compensation claim in good faith;

Tex. Labor Code Ann. § 451.001 (Vernon 1996).

An employee has the burden of demonstrating a causal link between the discharge and the filing of a workers' compensation claim. Garcia v. Allen, 28 S.W.3d 587, 600 (Tex.App.-Corpus Christi 2000, pet. denied). In order to recover for retaliatory discharge, an employee must prove that but for the filing of a workers' compensation claim, the discharge would not have occurred when it did. City of Fort Worth v. Zimlich, 29 S.W.3d 62, 67 (Tex.2000);² Cont'l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996). An employee need not show he was fired solely because he filed a workers' compensation claim; however, he must establish that "but for" the filing of the claim, the discharge would not have occurred when it did. Cazarez, 937 S.W.2d at 450. This causal connection is an element of the employee's prima facie case and may be established by direct or circumstantial evidence. Allen, 28 S.W.3d at 600. Circumstantial 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 policy; (4) discriminatory treatment in comparison to similarly situated employees; and (5) evidence that the stated reason for the discharge was false. Id.; see Cazarez, 937 S.W.2d at 451.

Legal and Factual Sufficiency

In its first issue, Haggar contends there is no evidence or insufficient evidence that it terminated Hernandez in retaliation for filing a worker's compensation claim. Haggar argues Hernandez was terminated pursuant to a non-discriminatory and uniformly enforced absence-control policy.

Uniform enforcement of a reasonable absence-control provision does not constitute retaliatory discharge. Cazarez, 937 S.W.2d at 451. An employer who terminates an employee for violating such a rule cannot be liable for retaliatory discharge so long as the rule is uniformly enforced. Id.

We have reviewed the entire sixteen-volume reporter's record in this case. Having conducted a thorough review of the evidence and considering our standard of review, we conclude there is legally and factually sufficient evidence to support the jury's finding of retaliation.³ We overrule Haggar's first issue.

Malice

In its second and third issues, Haggar challenges the legal and factual sufficiency of the evidence supporting the jury's finding of malice and the jury's assessment of punitive damages in the amount of $1,400,000. In its fourth issue, Haggar contends the punitive damage award is grossly excessive.

In order to recover exemplary damages in a workers' compensation retaliation case, a party must prove the employer acted with actual malice, which requires proof of ill will, spite, evil motive, or a specific intent to cause injury to the employee. Zimlich, 29 S.W.3d at 71 (citing Cazarez, 937 S.W.2d at 454) (emphasis added). The jury found that Haggar acted with malice in discharging Hernandez and awarded her $1,400,000 in punitive damages.

Haggar argues that because Hernandez's claim is restricted to retaliatory discharge, the malice inquiry is similarly restricted, as a matter of law, to the discharge and the state of mind of the person who made the termination decision. In support of its argument, Haggar cites Zimlich, 29 S.W.3d at 70-71.

We find the facts in Zimlich distinguishable. In Zimlich, the plaintiff claimed he was discriminated against in violation of the Texas Whistleblower Act⁴ because he reported a violation of law to the appropriate authorities. Id. at 67-68. Zimlich identified three specific adverse employment decisions as evidence of the discrimination. Id. at 68. Zimlich argued that evidence of the discriminatory motives of two other employees should be considered, even though he had not alleged any involvement by those employees in the alleged adverse employment decisions. Id. at 68-70. The Texas Supreme Court declined to consider whether liability for discrimination can be based on a "conduit theory," in which one supervisor makes a recommendation regarding an employee to another innocent supervisor, who acts on that recommendation without exercising any independent judgment. Id. at 70. The Zimlich court noted that it was unnecessary to consider such a "conduit" theory because there was no evidence that the decision-maker identified by...