Paragon Hotel Corp. v. Ramirez, 08-89-00085-CV

• Citation: 783 S.W.2d 654
• Decision Date: 13 December 1989
• Docket Number: No. 08-89-00085-CV,08-89-00085-CV
• Parties: PARAGON HOTEL CORPORATION and Spokane Equities, d/b/a El Paso Airport Hilton, Appellants, v. Lorenzo RAMIREZ, Appellee.
• Court: Court of Appeals of Texas

Page 654

783 S.W.2d 654

PARAGON HOTEL CORPORATION and Spokane Equities, d/b/a El Paso Airport Hilton, Appellants, v. Lorenzo RAMIREZ, Appellee.

No. 08-89-00085-CV.

Court of Appeals of Texas El Paso.

Dec. 13, 1989.

Opinion After Entry of Remittitur Jan. 3, 1990.

Rehearing Overruled Jan. 10, 1990.

R. Wayne Pritchard, Ginnings, Birkelbach, Keith & Delgado, El Paso, for appellants.

Enrique Moreno, Moreno & Fry, El Paso, for appellee.

Before OSBORN, C.J., and FULLER and KOEHLER, JJ.

OPINION

KOEHLER, Justice.

Appellee, Lorenzo Ramirez ("Ramirez"), brought suit for damages for wrongful termination of his employment as a houseman by El Paso Airport Hilton ("Hilton") in violation of Article 8307c of the Texas Workers' Compensation Act. Appellants, owners and operators of the Hilton, appeal from an adverse judgment on a jury verdict for past and future mental anguish, future lost wages and exemplary damages. We reverse and remand, subject to a remittitur.

Prior to his employment at the Hilton, Ramirez had been working at a Holiday Inn under Beverly Russell. When Russell became head of housekeeping and laundry at the Hilton, she asked Ramirez to come to work for her there. He did so in June 1986, at a starting salary of $3.50 an hour. After a probationary period, his salary was raised to $4.00 per hour. On March 26, 1987, Ramirez suffered a compensable work injury to his back as a result of a fall while stripping a bathroom floor. The back injury involved extensive loss of time, off and on, from March through November 1987, and ultimately resulted in a ten percent permanent bodily impairment. He sustained a second injury, this time to his eye, on May 17. The latter injury did not involve lost time and the worker's compensation claim was limited to medical expenses alone. In both instances, the compensation reports and claims were prepared by Hilton's personnel director, Cindy Sieman. Neither claim was questioned by the compensation insurance carrier.

Ramirez was experiencing continuing difficulty with his back and although he attempted several times to resume work, further examinations by his attending physician, Dr. Heydemann, produced notes that he was not to resume work for certain periods of time. Sometime while this was going on, Russell left and Tilly Ochs became Ramirez's supervisor. She was responsible for scheduling his work hours and assignments. He was to deliver any medical excuses from work to her. Ramirez testified that although she accepted these notes and adjusted his schedule, she at times conveyed irritation with his repeated absences for medical reasons. On one occasion, while at work, Ramirez was asked how he was feeling by Sieman. According to his testimony, when he replied that he was not feeling well, she stated that his trouble was "in his head."

By letter dated and delivered on September 15, Ramirez's employer was notified that Ramirez was released to return to work on October 5. At that time, Ochs reassigned him to duty in the laundry, which Appellants summarily characterize as a light duty assignment. Ochs testified that she intended to place him in a less demanding job, although she admitted that certain aspects, loading and unloading wet sheets, involved significant physical effort. Ramirez testified that his hours were also reduced, an assertion challenged by Ochs with support from work schedule documents. He complained about his shortened hours to the Hilton general manager, Rich Cain, who would not talk to him but referred him to Sieman. Cain had been courteous and had talked to him in the past. Ramirez experienced increased pain in his back and was unable to report for work on October 25, a Sunday. He testified that he called the office in advance and told Lisa Schmaltz, an employee who answered the phone, that he was physically unable to come in. Ramirez stated that she told him it was all right as long as he brought in a note from the doctor and she would relay the message to Ochs. Ochs was not on duty at the time. She testified that she received no such message through Schmaltz. The next day, October 26, Ramirez visited Dr. Heydemann who gave him a note that he was unable to work and would be reexamined in two weeks. He took the note to Ochs that day. Ochs testified that: (1) she verbally warned him that he was in violation of the hotel rules for not giving prior notice or absenteeism on October 25 and 26; (2) he did not mention having called Lisa Schmaltz; (3) she told him she would schedule his next shift for November 11, two days beyond the two week period indicated by Dr. Heydemann; and (4) if he still was unable to work then he was to notify the hotel prior to his shift reporting time. Ramirez testified that she simply took the note, but gave no verbal warning and did not tell him when his next shift would be. He did not know when he was supposed to return to work, but assumed that this would be decided after his next examination in two weeks.

On November 10, Ramirez was examined by Dr. Heydemann and was given another note indicating that he would be unable to return to work until further notice, with another examination scheduled in one month. He did not call in or report for duty on November 11. On November 12, he arrived at 9:27 a.m. and delivered the latest note. Ochs accepted the note without comment and Ramirez left. Ochs testified that she took the note to Sieman and recommended dismissal, based upon the October 25 failure to report, as well as the events of November 11 and 12. Sieman concurred and drafted a termination letter, which Ochs signed. The letter, sent by certified mail, arrived on November 13. Ramirez was confined to bed at the time and the mailman had to deliver the letter to the bedroom for his signature. Ramirez's wife had to translate the letter from English to Spanish. At the time, Ramirez's wife was seven or eight months pregnant, and the couple had no other source of income. The termination was very distressing, forced the couple to borrow money from relatives and raised the specter of divorce. Their child was subsequently born in February 1988. At approximately the same time, Ramirez was released to return to work. He obtained a temporary job for six weeks in May and June, installing glass at $6.00 per hour in a new shopping center. At the time of the trial in November 1988, he had obtained a part-time job as a busboy at the Holiday Inn where he had previously worked, with a salary of $3.35 per hour. He was still on probationary employment and did not know if he would obtain either permanent or full-time status.

The jury concluded in answers to special issues that the filing of the worker's compensation claim was a reason for the termination and awarded compensatory damages as follows: past lost wages, $3,610.00; past mental anguish, $100,000.00; future lost wages, $62,400.00; and future mental anguish, $200,000.00. Upon the further finding that the Appellants acted willfully and maliciously, the jury awarded $200,000.00 in exemplary damages. Only the amount of past lost wages is not contested on this appeal.

Appellants bring sixteen points of error, most of which present legal and factual insufficiency challenges to the jury's findings and awards. In reviewing the legal sufficiency, or "no evidence," challenge, this Court must examine only that evidence and reasonable inferences therefrom which, viewed in the most favorable light, support the verdict. If such evidence amounts to more than a scintilla, that is more than a basis for mere surmise or suspicion, then the legal sufficiency challenge must fail. Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex.1987); Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983). The factual sufficiency challenge is evaluated by reviewing all of the 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 the evaluation, the appellate court may not simply substitute its judgment for that of the fact finder in the lower court, particularly with regard to assessing the credibility of the witnesses. Clancy v. Zale Corporation, 705 S.W.2d 820, 826 (Tex.App.--Dallas 1986, writ ref'd n.r.e.).

In this case, the evidentiary review of Question No. 1, wherein the jury found that the filing of a worker's compensation claim by Ramirez was a cause or reason why he was discharged, entails a determination of the adequacy of Ramirez' proof of a causal link between the termination and the filing of the claim. Azar Nut Company v. Caille, 720 S.W.2d 685, 687 (Tex.App.--El Paso 1986), aff'd, 734 S.W.2d 667 (Tex.1987). Appellants' cited authority, without exception, contrasts the evidence in this case with cases affirmed on the basis of direct evidence of such causal connection. This is of little help in assessing the evidence in a case, such as this, involving circumstantial evidence. The proof in a wrongful termination case need not be direct. Circumstantial evidence and reasonable inferences from the evidence may provide adequate support for the jury's affirmative finding. Hunt v. Van Der Horst Corporation, 711 S.W.2d 77, 80 (Tex.App.--Dallas 1986, no writ); Luna v. Daniel International Corp., 683 S.W.2d 800, 803 (Tex.App.--Corpus Christi 1984, no writ); Santex, Inc. v. Cunningham, 618 S.W.2d 557, 560 (Tex.Civ.App.--Waco 1981, no writ); Murray Corporation of Maryland v. Brooks, 600 S.W.2d 897, 903 (Tex.Civ.App.--Tyler 1980, writ ref'd n.r.e.).

The evidence in this case is sufficient to withstand both the legal and factual insufficiency challenges. Such evidence consists of: (1) knowledge of the compensation claim by those making the decision on termination; (2) expression of a negative attitude toward Ramirez's injured condition; (3) failure to adhere to established company policies with regard to progressive disciplinary action; and (4)...