Wal-Mart Stores, Inc. v. Amos

• Decision Date: 24 May 2002
• Docket Number: No. 06-01-00108-CV.,06-01-00108-CV.
• Citation: 79 S.W.3d 178
• Parties: WAL-MART STORES, INC., Appellant, v. Scottie D. AMOS, Appellee.
• Court: Texas Court of Appeals

79 S.W.3d 178

WAL-MART STORES, INC., Appellant, v. Scottie D. AMOS, Appellee.

No. 06-01-00108-CV.

Court of Appeals of Texas, Texarkana.

Submitted April 4, 2002.

Decided May 24, 2002.

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Ronald D. Gray, Geary, Porter & Donovan, PC, Addison, for appellant.

Ned A. Stewart, Jr., Autrey & Autrey & Stewart, Texarkana, for appellee.

Before CORNELIUS, C.J., GRANT and ROSS, JJ.

OPINION

Opinion by Justice ROSS.

Wal-Mart Stores, Inc. appeals the jury's finding that it is guilty of the retaliatory discharge of Scottie Amos for filing a worker's compensation claim, in violation of the Workers' Compensation Act. TEX. LAB.CODE ANN. § 451.001 (Vernon 1996). The trial court rendered judgment on the jury's verdict, awarding Amos $129,160.00 in damages, plus prejudgment and postjudgment interest. Wal-Mart filed a motion for judgment notwithstanding the verdict and an alternative motion for new trial, which the trial court denied.

Wal-Mart contends: (1) there is no evidence, or insufficient evidence, to support the jury's finding that Wal-Mart discharged Amos because of her worker's compensation claim; (2) there is no evidence, or insufficient evidence, to support the jury's finding of $88,000.00 in future damages; and (3) there is no evidence, or insufficient evidence, to support the jury's finding of $41,160.00 in past damages.

Amos was employed by Wal-Mart as an in-store loss prevention associate from 1993 to 1999. A loss prevention associate's duties primarily involve observing and apprehending shoplifters. On April 27, 1999, Amos helped the police apprehend a customer. A scuffle ensued during this incident, and Amos suffered an injury to her shoulder and wrist. Later that day, Amos filed with the Wal-Mart personnel office a worker's compensation request for medical care. She then missed seven days of work and returned May 4, 1999. Although on "light duty," Amos performed all tasks associated with her job without difficulty, including apprehending shoplifters.

Sometime in April 1999, Amos told her supervisor, Lawrence Ashford, of an incident where she had almost been caught by a customer while spying on the customer with a mirror while the customer was in a fitting room. Ashford admonished Amos that Wal-Mart did not condone such practices and that she should never do this again.

On May 13, 1999, Ashford learned of another incident involving Amos. On this date, Lori Bramlett, also a Wal-Mart employee, informed Ashford that she (Bramlett) went into the store restroom, and while seated in the stall, looked up and saw Amos looking over the partition at her. Amos had stood on the toilet in the adjacent stall to peer over the partition. Amos admitted this incident occurred, but explained that she was told a shoplifting suspect had entered the restroom and that she peered over the partition to determine the stall into which the suspect had gone. According to Amos, this incident occurred in February 1999. Bramlett contends it occurred later than February, but was unable to remember the exact date. It is uncontested that Ashford did not learn of the incident until May 1999 and that he understood the incident had recently occurred.

After investigating the restroom incident, Ashford decided to terminate Amos. Although approval of such termination by the store manager, Linda Tosh, was not required, Ashford consulted with Tosh, and she agreed with his decision. On May 17, 1999, Amos was terminated for "Serious Inappriate [sic] Conduct." Tosh was present when Ashford terminated Amos, and Tosh signed the exit interview form as a witness.

Amos' injury deteriorated, and Joseph Greenspan, M.D., began treating her about a year after her injury. Greenspan testified Amos could only "perform vocational tasks involving observation or walking around. Certainly nothing involving manual dexterity or bimanual movements." Amos testified she applied for some jobs, but potential employers "won't accommodate my arm and any kind of stipulations to my light duty or anything." Amos testified she is unable to perform convenience store work or clerical work.

Section 451.001 of the Texas Labor Code provides that "[a] person may not discharge or in any other manner discriminate against an employee because the employee has ... filed a workers' compensation claim in good faith." TEX. LAB.CODE ANN. § 451.001(1). The burden of proof is on the employee to demonstrate the causal link between the discharge and the filing of the claim, an element of a prima facie case for retaliatory discharge. TEX. LAB. CODE ANN. § 451.002(c) (Vernon 1996); see Garcia v. Allen, 28 S.W.3d 587, 600 (Tex. App.-Corpus Christi 2000, pet. denied). The employee must prove that, but for the filing of the worker's compensation claim, the discharge would not have occurred when it did. See City of Fort Worth v. Zimlich, 29 S.W.3d 62, 67 (Tex.2000);¹ Cont'l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996). An employee can meet this burden without showing discrimination occurred against the employee solely because of the filing of a worker's compensation claim; however, the employee must show the filing of the claim was at least a determining factor in the discriminatory conduct. Terry v. S. Floral Co., 927 S.W.2d 254, 257 (Tex.App.-Houston [1st Dist.] 1996, no writ); see Gorges Foodservice, Inc. v. Huerta, 964 S.W.2d 656, 665-66 (Tex.App.-Corpus Christi 1997, no pet.). This causal connection may be established by direct or circumstantial evidence and by reasonable inferences arising from such evidence. See Garcia, 28 S.W.3d at 600. An employee cannot prevail on a claim of retaliatory discharge if the employer can establish that the reason for the employee's discharge or other adverse treatment was not due to the employee's filing of a worker's compensation claim, but rather due to a neutrally-applied policy. Fenley v. Mrs. Baird's Bakeries, Inc., 59 S.W.3d 314, 321 (Tex.App.-Texarkana 2001, pet. denied).

Wal-Mart contends the limited circumstantial evidence submitted by Amos does not rise to the level of being more than the scintilla of evidence required to prove a prima facie case. It also contends that all the evidence, considered as a whole, shows by a great weight and preponderance of the evidence that no retaliatory discharge occurred. Wal-Mart contends Amos was fired because she violated Wal-Mart policy in looking over the restroom stall, not because she filed a worker's compensation claim.

When there is an absence or mere scintilla of evidence to support a jury's findings, a no-evidence point should be sustained. Provident Am. Ins. Co. v. Castaneda, 988 S.W.2d 189, 206 (Tex.1998). Appellate courts reviewing no-evidence complaints may consider only the evidence and inferences that tend to support the finding and must disregard all contrary evidence and inferences. Cazarez, 937 S.W.2d at 450; Brown v. Edwards Transfer Co., 764 S.W.2d 220, 223 (Tex.1988); Holley v. Adams, 544 S.W.2d 367, 370 (Tex.1976). Anything more than a "scintilla of evidence" is legally sufficient to support the jury's finding. Cazarez, 937 S.W.2d at 450. To be more than a scintilla, the evidence must rise "to a level that would enable reasonable and fair-minded people to differ in their conclusions." Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex.1994).

"Where circumstantial evidence is relied upon, and the circumstances are equally consistent with either of two facts, however, no more than a scintilla of evidence supports a finding and a `no evidence' point must be sustained." Cazarez, 937 S.W.2d at 450; see also Litton. Indus. Prods., Inc. v. Gammage, 668 S.W.2d 319, 324 (Tex.1984). When the evidence offered to prove a 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. C & D Robotics, Inc. v. Mann, 47 S.W.3d 194, 197-98 (Tex.App.-Texarkana 2001, no pet.).

"The equal inference rule provides that a jury may not reasonably infer an ultimate fact from meager circumstantial evidence `which could give rise to any number of inferences, none more probable than another.'" Lozano v. Lozano, 52 S.W.3d 141, 148 (Tex.2001); see also Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387, 392 (Tex.1997). When circumstantial evidence is relied on for proof of a fact, "the evidence must establish that it is more likely than not" the fact exists. Cf. Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex.1998) (a slip and fall case). The circumstantial evidence must show more than the "possibility" of the fact. Id.

In reviewing a point of error claiming the evidence is factually insufficient to support the jury's answer to a question, the appellate court considers all of the evidence, including evidence contrary to the jury's verdict. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex.1989); Southwestern Elec. Power Co. v. Martin, 844 S.W.2d 229, 233 (Tex.App.-Texarkana 1992, writ denied). The appellate court then determines "whether the verdict is so against the great weight and preponderance of the evidence as to be manifestly wrong or unjust." Mann, 47 S.W.3d at 199 (citing Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996), and Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986)). In reviewing all the evidence, the appellate court "may not interfere with the jury's resolution of conflicts in the evidence." Mann, 47 S.W.3d at 199.

Where both legal (or no evidence) and factual sufficiency grounds are raised, we consider the no-evidence point first "to determine whether there is any probative evidence to support the jury's verdict." Id. at 197 (citing Glover v. Tex. Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex.1981)).

LEGAL SUFFICIENCY

There is no question in this case that Amos filed a worker's compensation claim. Wal-Mart's first issue is there is no evidence to support the...