EDWARD YBARRA v. H. B. ZACHRY COMPANY--Appeal from 135th District Court of Victoria County

NUMBER 13-01-801-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI-EDINBURG

EDWARD YBARRA ,   Appellant,

v.

H. B. ZACHARY COMPANY, Appellee,

On appeal from the 135th District Court

of Victoria County, Texas.

O P I N I O N

Before Chief Justice Valdez and Justices Dorsey and Rodriguez

Opinion by Chief Justice Valdez

Appellant, Edward Ybarra (Ybarra), appeals the trial court=s granting of a motion for directed verdict in favor of appellee, H. B. Zachry Co. (Zachry). Ybarra argues that the trial court erred in granting the directed judgment. We affirm.

Facts

Ybarra worked off an on for Zachry from the mid 1970's to his last layoff in June of 1998. During this period of time, Ybarra was periodically laid off due to reductions in forces and subsequently rehired as an employee of Zachry when new projects arose. Ybarra= projects ranged from painting and insulating to working as a multi-craftsman. After each layoff Ybarra would wait 90 days or Akeep applying or going up there and just wait for them to call back,@ each time refiling an application for employment. In June of 1997, during the last period of his employment, Ybarra suffered from a Afume incident@ which caused him to have trouble breathing. He subsequently filed a workers= compensation claim in August 1997. Ybarra, along with other members of his crew were laid off in June of 1998. Following his last layoff, Zachary did not recall Ybarra for employment. Ybarra argues that Zachry=s failure to recall his employment was retaliation against him because he filed a workers= compensation claim.

Ybarra then filed suit against Zachry. The case was called to trial on October 1, 2001, and a jury was impaneled. During voir dire, Ybarra=s counsel stated that Zachry retaliated against Ybarra by not hiring him after a reduction in force. After voir dire, Zachary filed an oral motion in limine contending Ybarra=s claim for wrongful recall did not state a cause of action, and any evidence of failure to rehire after his termination should not be permitted. The trial court allowed Ybarra to make a bill of exception and show what its proffered evidence would be. The trial court then granted Zachry=s motion for directed verdict.

Analysis

In reviewing a directed verdict, we examine the evidence in the light most favorable to the person suffering an adverse judgment. S.V. v. R.V., 933 S.W.2d 1, 8 (Tex. 1996). A directed verdict is appropriate when reasonable minds can draw only one conclusion from the evidence. Villareal v. Art Inst. of Houston, 20 S.W.3d 792, 795 (Tex. App.BCorpus Christi 2000, no pet.) (citing Collora v. Navarro, 574 S.W.2d 65, 68 (Tex. 1978)). Where the plaintiff fails to present evidence in support of a fact essential to her right to recover or where a defense against the plaintiff=s cause of action is conclusively proved or admitted, a directed verdict for the defendant is proper. Villegas v. Griffin Indus., 975 S.W.2d 745, 749 (Tex. App.BCorpus Christi 1998, pet. denied) When reasonable minds may differ as to the truth of controlling facts, the issue must go to the jury. Id. When no evidence of probative force on an ultimate fact element exists the trial court has the duty to instruct the verdict. Villareal, 20 S.W.3d at 796. The reviewing court may affirm a directed verdict even if the trial court=s rational for granting the directed verdict is erroneous, provided it can be supported on another basis. Kelly v. Diocese of Corpus Christi, 832 S.W.2d 88, 90 (Tex. App.BCorpus Christi 1992, writ dism=d w.o.j.).

Section 451.001 of the Texas Labor Code, the statute relied upon by Ybarra as a cause of action, provides:

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;

(2) hired a lawyer to represent the employee in a claim . . .

Tex. Lab. Code Ann. ' 451.001 (Vernon Supp. 2002).

A claim under the Workers= Compensation Act cannot be brought against one who is not an Aemployer@ within the meaning of the act. Jenkins v. Guardian Indus., 16 S.W.3d 431, 439 (Tex. App.BWaco 2000, pet. denied). Unless otherwise specified, an employer is a Aperson who makes a contract of hire, employs one or more employees, and has workers= compensation insurance coverage.@ Tex. Lab. Code Ann. ' 401.011 (18) (Vernon Supp. 2002). The judgment signed by the trial court states in pertinent part:

Plaintiff was not seeking to prove that Plaintiff was wrongfully terminated or that his termination constituted retaliation, but that he was contending that he had been retaliated against by reason of the fact that he was not recalled following a lay off and reduction in force, while the other employees were so recalled.

In Smith v. Coffee=s Shop for Boys and Men, Inc., 536 S.W.2d 83, 84-85 (Tex. App.BAmarillo 1976, no writ) the appellate court considered a case in which an ex-employee brought a claim under the predecessor to section 451.001 for failure to rehire. Although this case was ultimately decided on other grounds,[1] we find the analysis informative on whether an ex-employee has a cause of action for failure to rehire. Id. at 84.

Smith was a salaried tailor at the coffee shop from 1969-1972. Id. She suffered an ankle injury while in the course and scope of her employment. Id. Smith filed a claim for workers= compensation benefits that was subsequently settled in October of 1972. Id. After Smith was advised by her physician that she was physically able to return to work, her employer asked her to return to work immediately, but she took a two week vacation, the time which she had accrued prior to her injury. Id. Coffee=s hired a part-time, and then a full-time, replacement. Id. At the expiration of Smith=s vacation she made requests for permission to return to work. Id. Her requests were refused. Id.

Notwithstanding the statute of limitations analysis, the appellate court reasoned that the Aacts statutorily condemned are those occurring during the employment, and not afterwards.@ Smith, 536 S.W.2d at 85. The Court further opined that the applicable statute concerned discriminatory discharge and not refusal to later re-employ. Id.

We find this analysis informative under the current applicable statute. Under the Texas Workers= Compensation Act, we recognize that employees may file claims for discriminatory discharge. Tex. Lab. Code Ann. ' 451.001 (Vernon Supp. 2002). We do not, however, read that statute to include an additional cause of action for failure to rehire. As such, we find that no evidence of probative force on an ultimate fact element exists. Villareal, 20 S.W.3d at 796. Accordingly the trial court did not err in granting Zachry=s motion for a directed verdict.

Appellants sole point of error is overruled. The judgment of the trial court is therefore affirmed.

ROGELIO VALDEZ

Chief Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed

this 27th day of June, 2002.

[1] The appellate court held that the plaintiff=s statutory cause of action for retaliation was barred by the two year statute of limitations. Smith v. Coffee=s Shop for Boys and Men, Inc., 536 S.W.2d 83, 84 (Tex. App.BAmarillo 1976, no writ)