Grey Wolf Drilling Company, L.P. v. Rogelio Perez--Appeal from 406th Judicial District Court of Webb County

MEMORANDUM OPINION
No. 04-02-00802-CV
GREY WOLF DRILLING COMPANY, L.P.,
Appellant
v.
Rogelio PEREZ,
Appellee
From the 406th Judicial District Court, Webb County, Texas
Trial Court No. 2001-CVT-000310-D4
Honorable Andres Reyes, Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

Sitting: Alma L. L pez, Chief Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: March 3, 2004

AFFIRMED

Grey Wolf Drilling Company, L.P. ("Grey Wolf") appeals a judgment in favor of Rogelio Perez ("Perez") in a suit involving a claim of retaliatory discharge. On appeal, Grey Wolf raises several issues including the sufficiency of the evidence to support a causal link between Perez's workers' compensation claim and his discharge. We affirm.

Background

Grey Wolf, a drilling company, hired Perez in 1997 as a general floor hand and he was assigned to work on one of their drilling rigs. Approximately two years later, Perez sustained a work injury, and filed a worker's compensation claim. Grey Wolf initially contested the claim, but Perez ultimately received benefits and time off from work. After returning to work, Perez was transferred to a different oil rig where he maintains he was constantly "harassed" by his supervisors and new co-workers. Four months later, Perez was terminated for poor work performance. He then sued Grey Wolf claiming employment discrimination, slander, negligence/gross negligence, breach of contract, fraud, and intentional infliction of emotional distress. The case was tried to the court, and at the conclusion of evidence, the trial court granted Grey Wolf's motions for a directed verdict on all claims except employment discrimination. The trial court found in favor of Perez on his discrimination claim and awarded $114,974.50 as front pay, mental anguish, and actual damages. This appeal resulted.

Retaliatory Discharge Claim

In its second issue, Grey Wolf challenges the legal and factual sufficiency of the evidence to establish a causal link between Perez's workers' compensation claim and his discharge. (1) In a bench trial, we review the trial court's findings of fact and conclusions of law under the traditional legal and factual sufficiency standards. See Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). In a legal sufficiency review, we consider only the evidence and reasonable inferences which tend to support the trial court's findings, while disregarding all evidence and inferences to the contrary. Sherman v. First Nat'l Bank of Center, Tx., 760 S.W.2d 240, 242 (Tex. 1988) (per curiam). In a factual sufficiency review, we give equal weight and consideration to the evidence that both supports and contradicts the court's findings. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). We will set aside the judgment only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. Id.

The Texas Workers' Compensation Act prohibits an employer from discharging an employee merely because the employee files a worker's compensation claim in good faith. See Tex. Lab. Code Ann. 451.001(1) (Vernon 2003). An employee claiming retaliatory discharge bears the burden of demonstrating a causal link between the employee's protected activity and the employer's alleged wrongful termination. Id.; Castor v. Laredo Cmty. College, 963 S.W.2d 783, 785 (Tex. App.--San Antonio 1998, no pet.). For Perez to establish a causal link, he was not required to show that the filing of his workers' compensation claim was the sole reason for his discharge, but only that it was a determining factor. Castor, 963 S.W.2d at 785. The causal connection may be established by either direct or circumstantial evidence and by reasonable inferences arising from such evidence. Id. An employer's retaliatory motive is almost always proved through circumstantial evidence. Texas Animal Health Comm'n v. Garza, 27 S.W.3d 54, 63-64 (Tex. App.--San Antonio 2000, pet. denied). Circumstantial evidence sufficient to establish a causal link between the employee's workers' compensation claim and the employer's termination includes, but is not limited to, the following: (1) knowledge of the workers' 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 policies; (4) discriminatory treatment in comparison to similarly situated employees; and (5) evidence that the stated reason for discharge was false. Continental Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 451 (Tex. 1996). Evidence of every factor is not required to establish the requisite causal connection. Id. at 452; City of University Park v. Van Doren, 65 S.W.3d 240, 250 (Tex. App.--Dallas 2001, pet. denied).

Once a causal link has been established, the burden then shifts to the employer to rebut the alleged discrimination by showing there was a legitimate non-discriminatory reason for the employee's termination. Continental Coffee, 937 S.W.2d at 451; M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 24 (Tex. 2000) (per curium). If the employer is able to rebut the allegation of wrongful discharge, the burden shifts back to the employee to produce controverting evidence that the stated reason for termination was a pretext for discrimination. M.D. Anderson Hosp. & Tumor Inst., 28 S.W.3d at 24.

Here, there was no direct evidence of retaliation; therefore, Perez relied on circumstantial evidence. In viewing the evidence in a light most favorable to the verdict, we hold Perez presented sufficient evidence to withstand a legal sufficiency challenge. Grey Wolf concedes Perez's supervisors were aware of his workers' compensation claim. The evidence also shows that Perez was subjected to negative treatment from his co-workers and supervisors when he returned to work. Perez testified that, after filing his workers' compensation claim, Johnny Gonzales, one of his co-workers, frequently called him "handicapped" and a "vegetable" and told him that he was "injured" and "ain't worth shit." On cross-examination, Gonzales admitted to calling Perez "handicapped" and telling him he was "worthless." Perez also testified that one of his supervisors, Carlos Saldiva, was not only aware of Gonzales' verbal abuse, but laughed at the comments and chose not to reprimand Gonzales for his actions. Moreover, there is evidence that none of Perez's co-workers were subject to the same type of verbal harassment. Accordingly, there is some evidence that a negative attitude was expressed toward Perez's injury.

There is also evidence that Grey Wolf failed to adhere to its own written personnel policies and disciplinary procedures. Specifically, Grey Wolf's employment manual sets forth a progressive disciplinary procedure applicable to "all employees." Verbal warnings for perceived poor performance were to be followed by written counseling forms and an opportunity to improve prior to termination. It was undisputed that Perez was not given a written reprimand or placed on probation prior to his termination. Mike Flores, Grey Wolf's personnel safety supervisor, admitted that Grey Wolf did not complete the requisite paperwork on Perez's poor performance, but argued the policy was not practical in the field and only applied to office personnel. Jesse Trbula, another Grey Wolf supervisor, also testified a verbal reprimand is more effective in the field given their work environment. Both men admitted, however, that Grey Wolf had changed its practices since Perez had been fired and now supervisors did document perceived poor performance in the field. Two other Grey Wolf employees, Johnny Gonzalez and Marc Gonzalez, later testified that written counseling forms had been used in the field during the time of Perez's employment.

Furthermore, there is evidence that Grey Wolf's explanation for terminating Perez was false. Perez testified that he was never criticized for poor work performance in the two years prior to his injury. He also testified the harassment started only after he succeeded in his workers' compensation claim against Grey Wolf, despite his more than adequate work performance. He was then terminated for poor work performance four months after he returned to work without ever having received an explanation, oral or written counseling, opportunity to improve, or probation. Perez also points to the fact that Grey Wolf did not contest his claim for unemployment benefits. Thus, Perez presented some controverting evidence that Grey Wolf's claim of poor performance was merely a pretext for discrimination. Accordingly, we overrule Grey Wolf's legal sufficiency challenge.

In viewing the evidence in a neutral light, we also find that Grey Wolf's factual sufficiency challenge must fail. Although there is evidence that foul language was frequently used aboard the rig by all supervisors and employees, Perez's co-workers were not subjected to the same type or degree of verbal abuse he encountered after returning to work from his injury. Furthermore, although Perez had been verbally reprimanded for poor performance, he was never given a written reprimand or probation prior to his termination as required by Grey Wolf's policy. The trial court was charged with weighing the credibility and demeanor of the witnesses in resolving conflicting testimony. The trial court could have reasonably inferred that Perez was terminated, at least in part, as a result of his workers' compensation claim. Therefore, the evidence supporting the court's finding of a causal link is not so weak that it is clearly wrong and manifestly unjust. See Cain, 709 S.W.2d at 176.

Front Pay & Mental Anguish

Grey Wolf also challenges the legal and factual sufficiency of the evidence to support the trial court's award of damages for front pay and mental anguish. "Front pay" refers to future lost earnings, and may be recovered when an employee is discharged because he filed a workers' compensation claim. Wal-Mart Stores v. Davis, 979 S.W.2d 30, 43 (Tex. App.--Austin 1998, pet. denied). An employee may recover future lost wages, retirement, and other benefits which are the result of wrongful discharge and which are ascertainable with reasonable certainty. Carnation Co. v. Borner, 610 S.W.2d 450, 454 (Tex. 1980).

In its findings of fact and conclusions of law, the trial court determined that Perez was entitled to front pay in the amount of $73,820.67. Grey Wolf argues that the award was improper because front pay is only available for such time as Perez could reasonably be expected to have continued working for Grey Wolf. Since Perez admitted he was seeking other employment while still employed by Grey Wolf, it asserts the award of front pay is not supported by the evidence. We disagree.

Perez testified he intended to continue working for Grey Wolf had he not been fired. The court was entitled to believe him. The record establishes that Perez made approximately $35,000 a year at the time of his termination along with insurance benefits and stock options. Perez sought to recover ten years of front pay; the court awarded approximately two years. We find there is legally and factually sufficient evidence in the record to uphold the award of damages for front pay.

Grey Wolf further challenges the court's award of $28,608 in damages for mental anguish. If direct evidence of the nature, duration, and severity of Perez's mental anguish establishes a substantial disruption in his daily routine, we must sustain the award of damages for mental anguish. See Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995); Texas Animal Health Comm'n, 27 S.W.3d at 63. The evidence can be established by the plaintiff's own testimony or by a third party. See Parkway, 901 S.W.2d at 444. Mental anguish is more than mere disappointment, anger, worry, anxiety, resentment, or embarrassment. Wal-Mart Stores, Inc. v. Odem, 929 S.W.2d 513, 528 (Tex. App.--San Antonio 1996, writ denied).

At trial, Perez testified that he suffered from humiliation and despair as a result of Grey Wolf's discriminatory actions. Perez stated that his daily routine was substantially interrupted by severe headaches and vomiting. Moreover, these physical manifestations resulted in weight loss and insomnia. Perez's wife also testified that he was under tremendous stress. Both testified that Perez's termination had a detrimental effect on their children, finances, and marriage. During this time, Perez's wife filed for divorce. We find the evidence is legally and factually sufficient to support the award of damages for mental anguish. See Saenz v. Fidelity & Guar. Ins. Underwriters, 925 S.W.2d 607, 614 (Tex. 1996); Texas Animal Health Comm'n, 27 S.W.3d at 63. Accordingly, we overrule Grey Wolf's final issue and affirm the judgment of the trial court.
Phylis J. Speedlin, Justice

1. In a related argument, Grey Wolf also challenges the admission of David Garcia's expert testimony, asserting he was not timely designated as an expert witness and his testimony was not relevant or reliable. Because we conclude the evidence is sufficient to support the judgment without Garcia's expert testimony, we do not address Grey Wolf's first issue as it is not necessary to our disposition of the appeal. See Tex. R. App. P. 47.1.