Jose Sarabia v. Schlumberger Technology Corporation--Appeal from 111th Judicial District Court of Webb County

MEMORANDUM OPINION

No. 04-06-00105-CV

Jos SARABIA,

Appellant
v.
SCHLUMBERGER TECHNOLOGY CORPORATION,

Appellee

From the 111th Judicial District Court, Webb County, Texas

Trial Court No. 2004-CVQ-000130-D2

Honorable Solomon Casseb, Jr., Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

Sitting: Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Rebecca Simmons, Justice

Delivered and Filed: January 31, 2007

AFFIRMED

Jos Sarabia appeals a take-nothing judgment entered in favor of Schlumberger Technology Corporation, arguing that the trial court's exclusion of a piece of impeachment evidence resulted in a "materially unfair" trial. We affirm the trial court's judgment.

Factual and Procedural Background

Sarabia became employed as a maintenance mechanic technician at Schlumberger's Laredo facility in late 1999. In September 2000, he injured his right knee at work and reported it to his supervisor; Sarabia opted to nurse the injury himself for a while. A month later, Sarabia sought medical attention for his injury and filed a workers' compensation claim. In February 2001, Sarabia received his first annual performance appraisal review, in which his performance for the year 2000 was rated overall "satisfactory." In June 2001, Sarabia had knee surgery and was off work for nearly five months until October 2001. Sarabia's second performance appraisal review, done in February 2002, garnered an overall rating of "unsatisfactory." Soon thereafter, Sarabia was terminated. Sarabia subsequently sued his employer for retaliation under section 451.001 of the Texas Labor Code, alleging that he was fired for asserting his rights under the Texas Workers' Compensation Act. See Tex. Lab. Code Ann. 451.001(1) (Vernon 2006). Schlumberger responded that Sarabia was terminated for a "legitimate, non-discriminatory" reason, namely due to a reduction in its workforce (1)and Sarabia's poor ranking within the maintenance department.

The case was tried to a jury. At trial, Sarabia's supervisor, Servando Ibarra, testified that in the fall of 2001 he was instructed to rank the maintenance department employees in anticipation of layoffs. The only criteria he used to rank his employees was job performance and job skills. Ibarra maintained that he had not relied on prior annual performance evaluations when he ranked Sarabia at the bottom of his department. In response to this testimony, Sarabia sought to introduce into evidence a written interrogatory answer filed by Schlumberger which stated that Schlumberger had considered employee performance evaluations in ranking its employees for termination during the reduction in force. (2)

Sarabia maintained the interrogatory answer was admissible as a prior inconsistent statement by Schlumberger under Rule 613(a) of the Texas Rules of Evidence. Tex. R. Evid. 613(a). Objecting to the admission of the interrogatory answer, Schlumberger argued that Ibarra was not the same corporate representative who signed and verified the interrogatory, and the interrogatory response had been supplemented. See Tex. R. Civ. P. 197.3. The trial court sustained Schlumberger's objection. Ultimately, the jury returned a verdict in favor of Schlumberger, a take nothing judgment was entered, and this appeal followed.

Discussion

To prove his retaliation claim, Sarabia was required to show a causal connection between his workers' compensation claim and his discharge. See Tex. Lab. Code Ann. 451.001; Haggar Clothing Co. v. Hernandez, 164 S.W.3d 386, 388 (Tex. 2005). This causal link may be established through circumstantial evidence, including evidence that the reason for the discharge was false. See Cont'l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 451 (Tex. 1996); Garcia v. Levi Strauss & Co., 85 S.W.3d 362, 367-68 (Tex. App.--El Paso 2002, no pet.). On appeal, Sarabia asserts that Schlumberger's interrogatory response directly contradicted Ibarra's trial testimony, and therefore was admissible to impeach Schlumberger's credibility. Sarabia contends that the significance of the inconsistency between the interrogatory response and Ibarra's testimony at trial is that "if Ibarra had, in fact, used the evaluations as part of his ranking employees for layoff as had originally been sworn to, the only evaluation available for Sarabia at the time the rankings were done was positive and would have called into question the credibility of Schlumberger's 'non-discriminatory' reason for selecting Sarabia." Sarabia maintains this evidence was "critical because Sarabia's complimentary, positive performance evaluation belies Schlumberger's claim that it selected Sarabia for termination because of performance problems." Therefore, the trial court erred when it excluded the prior inconsistent statement "which went to the heart of the matter which the jury was to decide--what was the truth about how Sarabia was selected for termination."

Standard of Review

We review the trial court's decision to admit or exclude evidence for an abuse of discretion.Tex. Dep't of Transp. v. Able, 35 S.W.3d 608, 617 (Tex. 2000); City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995). An abuse of discretion occurs when the trial court acts without regard to any guiding rules or principles. Alvarado, 897 S.W.2d at 754. If error is found in the admission or exclusion of evidence, we examine the entire record to assess the harm caused by the error. See Cortez v. HCCI-San Antonio, Inc., 131 S.W.3d 113, 119 (Tex. App.--San Antonio 2004), aff'd, 159 S.W.3d 87 (Tex. 2005). We reverse based on the erroneous admission or exclusion of evidence only if the appellant shows error that was calculated to cause and probably did cause the rendition of an improper judgment. Tex. R. App. P. 44.1(a)(1); Alvarado, 897 S.W.2d at 753; Vela v. Wagner & Brown, Ltd., 203 S.W.3d 37, 52 (Tex. App.--San Antonio 2006, no pet.). Accordingly, the appellant must demonstrate that the excluded evidence was both controlling on a material issue and not cumulative of other evidence. Able, 35 S.W.3d at 617; Williams Distrib. Co. v. Franklin, 898 S.W.2d 816, 817 (Tex. 1995). Erroneous evidentiary rulings are usually not harmful unless the case as a whole turns on the particular evidence in question. Alvarado, 897 S.W.2d at 753-54; Sommers v. Concepci n, 20 S.W.3d 27, 41 (Tex. App.--Houston [14th Dist.] 2000, pet. denied). In this instance, we need not decide whether the exclusion of the evidence was improper because even if we assume the trial court erred, we conclude the error was harmless. (3)

Testimony

At trial, Sarabia presented five witnesses, including himself. Sarabia testified that he was an experienced mechanic and had earned at least two pay raises while employed at Schlumberger. His relationship with his supervisor, Ibarra, had been "very nice" during the year 2000, and he had only been written up once, in August 2000, for "horseplay." Regarding his first performance appraisal review, Sarabia testified that although his overall rating was "satisfactory," he received an unsatisfactory rating for "Safety." The rating was due to his knee injury, as evidenced by Ibarra's written comment that "Joe suffered a laceration to his right knee but has had good safety practice since." Sarabia also received an unsatisfactory rating in "Cooperation-Effectiveness With Others." There was no mention of the horseplay write-up in the appraisal review. Sarabia had knee surgery in June 2001 and was out of work for almost five months. Upon returning to work, Sarabia was supposed to be on light duty restriction, but Ibarra did not allow him to perform light duty work. Sarabia testified that his relationship with Ibarra changed upon his return to work in October 2001. Ibarra was "kind of upset" and "very mad." Sarabia recounted two instances in which Ibarra showed anger toward him. First, Ibarra called Sarabia into his office and showed him a scar on his arm. Ibarra said, "You see this? I had [an] injury on the job and I had to have therapy and I almost lost my job because of this." Sarabia felt "threatened" by the encounter and felt that if he continued to see his doctor for therapy he would be fired. Second, when Sarabia showed Ibarra a slip noting his doctor and therapy appointments, Ibarra "got mad" and said, "what do you mean? It's not over yet[?] You're still under therapy[?] I cannot send you to the field anymore."

Sarabia further testified that when Ibarra met with him regarding his second performance appraisal review, on which his overall rating was "unsatisfactory," Ibarra stated that because Sarabia was out of work for five months, "the company lost money," and therefore he was going to have to give Sarabia a "poor or low" rating. On the evaluation, Ibarra commented that "one concern was absenteeism related to [Sarabia's] [lost-time injury] from 200[1] he under wen[t] surgery in 2001." Sarabia stated that when he was terminated a week later, Ibarra did not mention a layoff or a reduction in force, but only stated that Sarabia was being terminated due to his performance.

Ibarra testified that in the fall of 2001 he was told to rank the maintenance employees because "times were getting hard." He consistently denied ever using the performance evaluations to rank his employees, and stated that the only criteria he used in the ranking was job performance and job skills, which included accidents and injuries sustained by employees. He stated that he ranked Sarabia "last" out of "12 or 14" mechanics, even though one employee caused over $10,000 worth of damage to a company vehicle. Ibarra also stated that Sarabia was ranked worse than an employee who had two automobile accidents prior to the rankings. This same employee also had a problem with absenteeism and tardiness, and made many mistakes in his work. Ibarra testified that he did have a concern about Sarabia's absenteeism, which he referenced on the second evaluation. Ibarra also stated that although company policy is to report all on-the-job injuries, he himself had sustained several injuries during his tenure at Schlumberger and did not report them all.

John Roney, Ibarra's supervisor, testified that Schlumberger participated in a safety recognition program which gave financial rewards to accident-free facilities. He acknowledged that injured employees cost the company money. Sarabia also attempted to challenge the theory that Schlumberger was suffering lost profits by questioning Roney about a press release announcing a profitable earnings quarter for Schlumberger. In addition, Bernie Valdez, Schlumberger's quality, health, safety, and environmental coordinator, testified that he directed the company's local safety program, which provided incentives for an accident-free workplace. Valdez also stated that employees, including management, were not disciplined for failing to report on-the-job injuries.

Finally, Homer Martinez, a current Schlumberger employee, testified that he was the lead mechanic in the maintenance department during Sarabia's employment. Martinez was injured on the job twice during his employment at Schlumberger. He injured his neck in 1994 and was out of work for about four months. At that time, he had a different supervisor, who "treated him fine." Recently, he sustained a minor back injury. His current supervisor, Ibarra, told him to "get it fixed." Martinez stated that Ibarra is a "hard boss," who is "there for the company." When asked if he had seen or heard Ibarra do anything "inappropriate ethically," Martinez stated that "there's a lot of talk," but he had not actually seen anything inappropriate. Martinez also testified that one to three months after Sarabia was terminated, another mechanic was hired to "replace him," and that there was "a lot" of work to be done in the maintenance department in 2002.

Harm Analysis Sarabia asserts that the exclusion of the interrogatory answer probably caused the rendition of an improper judgment because it would have undermined Schlumberger's position that Sarabia was terminated pursuant to a reduction in force. Specifically, he contends the jury was denied the opportunity to weigh the discrepancy between Schlumberger's interrogatory answer and Ibarra's trial testimony as to the criteria the company used in selecting Sarabia for layoff. We disagree that the exclusion of the interrogatory answer was harmful error. Both Sarabia's first and second annual performance evaluations were admitted into evidence. The first evaluation specifically noted Sarabia's positive attributes such as his "attention to detail," his "accuracy," and his level of experience. (4) Ibarra was extensively cross-examined about the evaluations and the methodology he used for ranking Sarabia last in his department in the fall of 2001. The jury could consider Ibarra's "overall satisfactory" evaluation of Sarabia for the year 2000, along with Ibarra's testimony that in the fall of 2001 he ranked Sarabia last among his employees for layoff purposes because of performance problems. Therefore, the jury was able to compare the relatively complimentary, positive performance evaluation done before Sarabia's knee surgery to Ibarra's low ranking of Sarabia in the fall of 2001 after Sarabia's knee surgery. The record shows the credibility of Schlumberger's proffered "non-discriminatory" reason for selecting Sarabia for layoff was challenged, and the excluded interrogatory answer would have been cumulative of evidence the jury had before it. See Able, 35 S.W.3d at 617-18. From our review of the record, we cannot conclude that the exclusion of the prior inconsistent statement probably resulted in the rendition of an improper judgment. See Alvarado, 897 S.W.2d at 753. Nor did the case as a whole turn on the excluded interrogatory answer. Id. at 753-54; Able, 35 S.W3d at 617. Accordingly, we conclude that the error, if any, in excluding the prior inconsistent statement was harmless. Sarabia's issue is overruled.

Conclusion

The judgment of the trial court is affirmed.

Phylis J. Speedlin, Justice

1. Between September 2001 and April 2002, the Laredo facility reduced its workforce by 26 employees.

2. The question and answer, verified by Schlumberger's personnel manager, Gabriel Alcoser, stated as follows:

Question- "Identify any matrix or tool that was used to identify individuals for lay off at Plaintiff's job location when Plaintiff was laid off."

Answer- "Performance evaluations were used to rank employees assigned to Schlumberger's Oilfield Services, Central U.S. Land Region in Laredo, Texas." (Emphasis added).

3. Sarabia claims that because the reason for his selection for layoff was "contested" and the evidence at trial was "sharply conflicting," we should apply a "materially unfair" harm analysis. See Lorusso v. Members Mut. Ins. Co., 603 S.W.2d 818, 820-21 (Tex. 1980) ("when the trial is contested and the evidence is sharply conflicting, the error results in a materially unfair trial without showing more"); see also Guentzel v. Toyota Motor Corp., 768 S.W.2d 890, 900 (Tex. App--San Antonio 1989, writ denied), rev'd on other grounds by E.I. du Pont de Nemours and Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995); Nix v. H.R. Mgmt. Co., 733 S.W.2d 573, 576 (Tex. App.--San Antonio 1987, writ ref'd n.r.e.). We decline to apply this "relaxed" harmless error standard of review in the instant case. See Wells v. Barrow, 153 S.W.3d 514, 518 (Tex. App.--Amarillo 2004, no pet.) (describing the "materially unfair" harm analysis as a "relaxed" harmless error standard). The standard has primarily been applied in cases involving peremptory strikes. See Lorusso, 603 S.W.2d at 821; Patterson Dental Co. v. Dunn, 592 S.W.2d 914, 921 (Tex. 1979). This case does not involve an error relating to jury selection, but rather deals with the exclusion of impeachment evidence. As such, we apply the standard articulated by the Texas Supreme Court in Alvarado, 897 S.W.2d at 753-54.

4. We note that even the first evaluation of Sarabia's performance was not without flaws. As discussed, Sarabia admitted that he received "unsatisfactory" rankings in two categories.