ECHOSTAR SATELLITE L.L.C. and Dish Network Service, L.L.C., Appellants, v. Ray AGUILAR, Appellee.
No. 08-10-00328-CV
Court of Appeals of Texas, El Paso.
Oct. 17, 2012.
Rehearing Overruled Dec. 5, 2012.
394 S.W.3d 276
The fact that the trial court overruled the defendant‘s Batson challenge following questioning of the prosecutor in response to rebuttal argument by defense counsel indicates to me that the trial court satisfied herself that the State‘s concerns about Fortune were justified in light of the court‘s own observations and the answers to her questions both before and during the Batson hearing. Because the State also struck other potential jurors, both black and white, male and female, for similar reasons and seated one of three available black jurors on the jury, and nothing indicates that the trial court was not in a position to evaluate the demeanor and credibility of both the prosecutor and Fortune, I would defer to the trial court‘s ruling. I see absolutely no “exceptional circumstances” that would justify overruling the trial court‘s determination regarding the propriety of the strike based on Fortune‘s demeanor in answering the State‘s questions during voir dire under the circumstances of this case. See Snyder, 552 U.S. at 477, 128 S.Ct. at 1208.
I would overrule appellant‘s third issue, urging his Batson challenge, and I would affirm the judgment of the trial court.
Stewart W. Forbes, Forbes & Forbes, El Paso, TX, for Appellee.
Before MCCLURE, C.J., RIVERA, and ANTCLIFF, JJ.
OPINION
CHRISTOPHER ANTCLIFF, Justice.
Appellants Echostar Satellite L.L.C. and Dish Network Service, L.L.C. (“Appellants“), appeal a jury verdict and judgment rendered in favor of Ray Aguilar (“Aguilar“). Appellants bring five issues: (1) legal and factual insufficiency of Aguilar‘s evidence that Appellants’ uniform application of their absence control policy was a violation of Chapter 451 of the Texas Labor Code; (2) insufficient evidence to support Aguilar‘s claim of retaliation under Chapter 451 of the Texas Labor Code; (3) error by the trial court in giving a constructive discharge instruction in a termination case; (4) error by the trial court in admitting improper and prejudicial character evidence; and (5) insufficient evidence
PROCEDURAL BACKGROUND
Aguilar brought suit for wrongful termination in violation of the Anti-Retaliation Law,
The trial was held on June 21 through June 25, 2010, and the jury rendered a unanimous verdict in Aguilar‘s favor, finding that Appellants terminated him in violation of
FACTUAL BACKGROUND
Aguilar began working for Appellants in February of 2000 as a customer service representative at the company‘s call center in El Paso, Texas. In May of 2004, he was granted a transfer to the installation depot, where he worked as a satellite installer. Aguilar‘s supervisor was Ruben Fragoso (“Fragoso“), who reported to Tommy Rivers (“Rivers“), the manager of the installation department. In November of 2004, Aguilar signed an acknowledgment of his receipt of Appellants’ absence policy, which provided that any employee who failed to call in or show up for work on their scheduled day for three days in a row would be terminated for “job abandonment.” Aguilar testified that he understood it was Appellants’ policy to reprimand and terminate employees under the absence-control policy if employees did not show up for work or call in. At trial, Jeannette Alonzo, Appellants’ senior human resources manager, testified that employees who failed to report to work for three days in a row are terminated for job abandonment. Linda Lucero (“Lucero“), a human resources department representative for the El Paso installation center, testified that Appellants’ “No Call/No Show” policy was applied to all employees across the board, regardless of whether or not the employee had filed a workers’ compensation claim.
Appellants conducted safety meetings at the installation depot, which took place, depending on workload, twice a week. Meetings were often held in the mornings, before installers began working. At these meetings, Aguilar stated his concern about safety practices and conditions, but received negative reactions from management when he did so. Fragoso testified that Aguilar complained about the extent of overtime required. Fragoso also testified that Aguilar was a “very good installer” and was “the best or one of the best.” Rivers also testified that Aguilar
During the morning of September 14, 2005, a safety meeting was held which, according to Rivers, Aguilar attended. Fragoso and Lucero were also present. Aguilar testified that he did not recall a meeting that morning.3 Rivers stated that the subject of the safety meeting was the proper way to carry the ladders4 assigned to installers.5 According to Rivers and Lucero‘s deposition testimony, Aguilar appeared disgruntled, was shaking his head, saying “this isn‘t fair,” huffing and sighing during the meeting.
Aguilar left the installation depot, resolved several “trouble” calls and proceeded to a customer‘s house to begin an installation. While at the house, he picked up his ladder and a bucket of tools when he felt a “pinch” in his lower back. Aguilar tried to walk it off, but when the pain would not go away, he called in the injury to the installation depot. Rivers called Aguilar and referred him to Appellants’ workers’ compensation doctor. Aguilar was diagnosed with a lumbar strain and was released back to work on the same day, with medical restrictions that included: no repetitive lifting over 10 pounds; no bending greater than zero times per hour; and no pushing and/or pulling over 15 pounds of force. The physician‘s note also indicated that Aguilar would reach maximum medical improvement on October 14, 2005, that he was to receive therapy, and that the treatment was authorized by Rivers.
Aguilar returned to the depot that afternoon and was asked to prepare an incident report by Rivers. The report was signed by Rivers and Aguilar. Rivers told Aguilar to take the next day off and return the following day. Fragoso testified that he felt Aguilar‘s injury was legitimate, and that he was “hundred percent sure” that Aguilar was telling the truth and was not faking the injury. Fragoso further testified that Aguilar should not have been carrying his ladder and tools at the same time because doing so was a violation of company policy. He did not reprimand Aguilar for doing so despite the policy violation being a common way for injuries to occur. Fragoso testified that Aguilar followed all internal procedures relating to his injury. Rivers provided similar testimony.
Aguilar returned to work on “light duty” status in the office of the installation department, answering phones, but not re-
During this time, the workers’ compensation insurance carrier, ESIS, requested additional information from Appellants. Rivers advised ESIS that Aguilar had been upset about the denial of a pay raise following the FSS II exam. ESIS determined that Aguilar had filed his workers’ compensation claim in retaliation for a personnel dispute, and on September 20, 2005, denied the claim. Internal emails indicate that on September 21, 2005, Rivers and Fragoso were included in emails advising that the claim had been denied.
Within a week of his injury, Fragoso and Rivers suggested that Aguilar transfer back to the call center. Eight days after his injury, on September 22, 2005, Fragoso presented Aguilar with a transfer request which Aguilar, Fragoso, and Rivers signed. Aguilar testified that he signed the request, not because it was his idea, but because he felt it was the type of work he could physically do. Fragoso testified that even when a transfer request is signed and approved, a transfer may take three to five months. Aguilar testified he was never contacted regarding the transfer.
The next day, September 23, 2005, Rivers called Aguilar into his office. Rivers told Aguilar that he “had to tell the insurance company about the incident that we had back in July when [Aguilar] didn‘t get [a] pay increase.” Aguilar stated that Rivers told him that he was costing the company too much money and that the workers’ compensation claim was going to be denied because Aguilar was retaliating against the company because he did not get his pay raise. Aguilar panicked and tried to convince Rivers that the accusation was false.
Aguilar stated that during the meeting Rivers became irritated, aggressive and angry toward Aguilar and gave him an ultimatum: “if you can‘t go do installs, then you‘re fired.” Aguilar, feeling panicked, nervous, and afraid, told Rivers he could not do installs because he was injured, but Rivers repeated the ultimatum. Aguilar did not believe he could return to work as an installer without violating the company doctor‘s restrictions and/or possibly injuring himself further.
Aguilar begged Rivers not to fire him, and fearing for his job asked to speak to Human Resources. Rivers called Debra Pierce (“Pierce“), Appellants’ workers’ compensation coordinator, and placed her on a speaker phone. Rivers told Pierce that Aguilar did not want to return to his regular duties, while Aguilar advised Pierce of the ultimatum. Pierce proposed that Aguilar “could go on leave without pay,” specifically that he could be placed on leave under the Family Medical Leave
Appellants sent a copy of the approved FMLA paperwork to Aguilar via the U.S. mail, and Aguilar testified that he read it. The FMLA leave request form states: “It is the employee‘s responsibility to notify the company prior to the scheduled end of leave in order to coordinate job restoration. Failure to return from leave on scheduled return date may result in termination of employment.” Aguilar testified that he stayed in contact with Appellants by calling and leaving a single message regarding the status of his medical treatment, but that the call was made after business hours and was left on a machine because he was embarrassed and did not want to speak to anyone. Aguilar did not follow-up with a letter, email or fax and did not submit any FMLA extension forms, testifying that he did not know he was required to do so. Lucero testified that she called Aguilar on October 1, 2005 and left him a message requesting notice of his intent to return. Rivers and Fragoso testified that they made several unreturned calls to Aguilar regarding his ability to return to work. Aguilar testified that he did not receive any calls or messages from Appellants while he was on FMLA leave. There is no record of the attempts to contact Aguilar made by Appellants. Aguilar received checks paying out his accrued paid-time off while he was on FMLA leave.
Aguilar obtained assistance from the Workers’ Compensation Commission and was assigned an ombudsman, who set up meetings to prepare for a hearing on Aguilar‘s claim. Aguilar testified that, despite his injury, he had no choice but to look for a temporary job while the workers’ compensation case was resolved.7 Aguilar testified that he obtained employment at Affina in their call center, with the expectation that he would go back to work for Appellants. Aguilar began working for Affina on October 10, 2005, and remained with them for less than a month, then began working at Manpower. Subsequently, he took a job with Honeywell. Aguilar did not disclose his injury on his job application to Affina, and indicated to Honeywell that he worked for Appellants until “10/2005” and was “looking for a better-better opportunity.” Aguilar never returned to work for Appellants.
Approximately three weeks after the expiration of his FMLA leave, Appellants terminated Aguilar for “job abandonment.” The termination paperwork was processed by Rivers, indicating that Aguilar‘s medical leave had expired and that Aguilar had failed to notify Appellants of his employment status.
Appellants’ policy was to notify employees in writing advising them of the expiration of their leave before termination.
At trial, over Appellants’ objection, a former employee named Lawrence Chavez (“Chavez“) testified regarding the absence control policy. Chavez was injured while working as an installer and was terminated for job abandonment. Chavez testified that he disagreed with the diagnosis of the workers’ compensation doctor and that Chavez was afraid to drive his work van. Chavez was terminated April 14, 2005 and testified that he had no personal knowledge of Aguilar‘s injury, claim or any knowledge about Aguilar‘s termination or the decision-making behind it. Chavez‘s testified that he heard Rivers and other supervisors make racial slurs, such as “Lazy Mexican” and call another employee a “pussy” and “worthless.” Chavez also testified that Appellants would “figure out a way” to get rid of injured employees, and that employees were treated like “slaves.”
Following the trial, the jury found that: (1) Appellants discriminated against Aguilar because he filed his workers’ compensation claim in good faith; (2) Aguilar was entitled to lost wages, lost future earnings, and compensatory damages; and (3) that there was clear and convincing evidence that Appellants maliciously harmed Aguilar. Judgment was entered, including exemplary damages (as reduced). Appellants filed a Notice of Appeal on November 2, 2010. On November 16, 2010, the trial court heard Appellants’ motion for judgment notwithstanding the verdict and motion for a new trial, both of which it denied.
DISCUSSION
I. Absence Control Policy
Appellants’ first issue alleges there is no evidence of a violation of
On appeal, a legal sufficiency or “no evidence” challenge will be sustained if the party suffering the adverse decision at trial shows: (1) the complete absence of a vital fact; (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a scintilla; or (4) the evidence establishes conclusively the opposite of the vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex.2005); El Paso Independent School District v. Pabon, 214 S.W.3d 37, 41 (Tex.App.-El Paso 2006, no pet.). The jurors are the sole judges of the weight and credibility of witness testimony and if the evidence at trial would allow reasonable, fair-minded jurors to differ in their conclusions, then jurors must be allowed to do so. City of Keller, 168 S.W.3d at 819, 822; Pabon, 214 S.W.3d at 41. When evidence falls within the zone of reasonable disagreement, a reviewing court cannot substitute its own judgment for that of the trier of fact. City of Keller, 168 S.W.3d at 819; Pabon, 214 S.W.3d at 41. However, if the evidence allows for only one inference, neither the jurors nor the reviewing court may disregard it. City of Keller, 168 S.W.3d at 822; Contreras v. Bennett, 361 S.W.3d 174, 179 (Tex.App.-El Paso 2011, no pet.) (noting same standards).
In a factual sufficiency review, we examine all the evidence in the record, both for and against the lower court‘s findings, and reverse only if it is so against the great weight of the evidence as to be clearly wrong and unjust. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996); Newberry v. Newberry, 351 S.W.3d 552, 555-56 (Tex.App.-El Paso 2011, no pet.) (noting same).
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;
(3) instituted or caused to be instituted in good faith a proceeding under Subtitle A; or
(4) testified or is about to testify in a proceeding under Subtitle A.
Employees may recover damages for retaliatory discharge under this provision only if they prove that, absent the filing of a workers’ compensation claim, the discharge would not have occurred when it did. Cont‘l Coffee Products Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996); Urquidi v. Phelps Dodge Refining Corporation, 973 S.W.2d 400, 403 (Tex.App.-El Paso 1998, no pet.).
Appellants argue that Aguilar failed to provide evidence that Appellants’ absence control policy was not uniformly enforced and that as a result, there cannot be a claim under
Uniform enforcement of a reasonable absence-control provision does not constitute retaliatory discharge under
Aguilar, in 2004, acknowledged that he received a copy of Appellants’ absence control policy, that was applicable to all employees. It provided, in relevant part:
If an employee does not call in or show up to work on their scheduled day, it is considered a “No Call/No Show” and counts as an unexcused absence. In the event that there are 3 “No Call/No Shows” in a row, it will be considered job abandonment and the employee will be immediately terminated.
Aguilar‘s FMLA leave was to end on October 14, 2005. Aguilar testified that he called Appellants once during his FMLA leave time and left a message after business hours. Prior to the expiration of his FMLA leave, Aguilar took full-time employment with Affina. Aguilar never returned to Appellants place of employment after he left on September 23, 2005, and he never requested an extension of his FMLA leave. Aguilar had three “No Call/No
Aguilar argues that the absence policy was not uniformly applied, as he should have been terminated following three “no call/no show” unexcused absences after October 14, 2005. In fact, Appellants’ position, as explained by Rivers during his testimony was that employees were automatically terminated after three “no call/no shows” and that there was no discretion in such an action. Appellants conceded that there was no clear reason why Aguilar was not terminated as of October 17, 2005.
As noted above, jurors are the sole judges of the weight and credibility of witness testimony. City of Keller, 168 S.W.3d at 819, 822. More than a scintilla of evidence exists, for the purposes of a legal sufficiency review, where the evidence supporting the finding, as a whole, rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Haggar Clothing Co. v. Hernandez, 164 S.W.3d 386, 388 (Tex.2005). The evidence presented would allow a reasonable and fair-minded jury to find that Appellants failed to uniformly enforce their absence control policy where the testimony was clear that Appellants had no discretion but to automatically terminate Aguilar as of October 17, 2005, but failed to do so for nearly three weeks, with no justification or explanation. Certainly the jury‘s finding is not against the great weight of the evidence presented so as to be clearly wrong or unjust. Ortiz, 917 S.W.2d at 772. Appellants’ first issue is overruled.
II. Retaliation
Appellants next argue that the evidence is insufficient to support Aguilar‘s retaliation claim and that there is insufficient evidence to support the required causal connection between Aguilar‘s workers’ compensation claim and his discharge.
To prove a violation of
In the summary judgment context, once the causal link is established, it is the employer‘s burden to rebut the alleged discrimination by demonstrating there was a legitimate reason for the discharge. Terry v. Southern Floral Co., 927 S.W.2d 254, 257 (Tex.App.-Houston [1st Dist.] 1996, no pet.). If the employer can make such a showing, the burden shifts back to the employee to produce controverting evidence of a retaliatory motive. Terry, 927 S.W.2d at 257, citing Carrozza, 876 S.W.2d at 314; Lozoya v. Air Systems Components, Inc., 81 S.W.3d 344, 347-48 (Tex.App.-El Paso 2002, no pet.)(citing Terry and Carrozza in holding that employee failed to rebut that he was terminated in response to a reasonable absence control-policy).
However, once an employment discrimination case has been fully tried on its merits, appellate courts do not engage in a burden-shifting analysis but instead focus on whether the evidence is legally and factually sufficient to support the jury‘s ultimate finding. See Rutherford v. Harris County, Texas, 197 F.3d 173, 180-81 (5th Cir.1999); Smith v. Berry Co., 165 F.3d 390, 394 (5th Cir.1999); Patterson v. P.H.P. Healthcare Corp., 90 F.3d 927, 933 (5th Cir.1996).
Aguilar must show that but for the filing of his workers’ compensation claim, his termination would not have occurred when it did. See Cont‘l Coffee Prods. Co., 937 S.W.2d at 450. While there may be some evidence that Appellants had other reasons for terminating Aguilar, the jury is the sole evaluator of the witnesses’ credibility and it is entitled to resolve conflicts in the testimony as it sees fit. See Emeritus Corp. v. Blanco, 355 S.W.3d 270, 281 (Tex.App.-El Paso 2011, pet. denied).
In the instant case, several of the Continental Coffee Prods. Co. and Wyler factors are present and establish the initial causal link. For example, there is no question that Appellants had knowledge of the compensation claim and that the people making the decision to terminate were aware of the claim, a factor favoring Aguilar. Aguilar testified that other employees showed a negative attitude towards his condition, while Appellants provided contravening testimony. Appellants deviated from their policies in a number of respects, specifically in that Appellants’ policy is to provide transitional or light duty for injured employees, however after only a few days on light duty, Aguilar was told to either return to his regular duties or be fired. Appellants further deviated from their policies by failing to notify Aguilar in writing, advising him of the expiration of
Aguilar argues that there is evidence that Appellants acted in a discriminatory manner in comparison to other similarly situated employees, however this argument is predicated on the assertion that Appellants contested the workers’ compensation claim. As this Court has noted, the exercise of an employer‘s statutory right to challenge an employee‘s claim of benefit is not evidence of a negative attitude. Lozoya, 81 S.W.3d at 348-49. We find that reasoning applicable to this factor as well, resulting in this factor being, at best, neutral to Aguilar. There is little question that the temporal proximity factor favors Aguilar, as he was injured on September 14, 2005 and was terminated on November 3, 2005.10
Taken as a whole, the Continental Coffee Prods. Co. factors tend to show the existence of a causal connection between the filing of Aguilar‘s workers’ compensation claim and his discharge. We conclude that Aguilar presented legally and factually sufficient evidence to support the jury‘s finding that but for the filing of Aguilar‘s workers’ compensation claim his termination would not have occurred. Appellants’ second issue is overruled.
III. Charge Error
Appellants next argue that the trial court erred by giving a constructive discharge instruction in a termination case.
We review the trial court‘s submission of jury instructions and questions under an abuse of discretion standard. Gutierrez v. People‘s Management of Texas I, Ltd., 277 S.W.3d 72, 77 (Tex. App.-El Paso 2009, pet. denied). “A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles.” Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex.2003). In reviewing jury charges we consider the parties’ pleadings, the evidence presented at trial, and the charge in its entirety. Gutierrez, 277 S.W.3d at 77. Even if there was an abuse of discretion by the trial court, we will reverse only where the error in the jury charge is shown to be harmful. Id. “We may not reverse unless the error, when viewed in light of the totality of the circumstances, amounted to such a denial of the rights of the complaining party as was reasonably calculated [to] and probably did cause rendition of an improper judgment.” Id., citing Braudrick v. Wal-Mart Stores, Inc., 250 S.W.3d 471, 475 (Tex.App.-El Paso 2008, no pet.).
In his petition, Aguilar alleged that Appellants constructively terminated him. The jury charge included the following instruction:
An employee is considered to have been discharged when an employer makes conditions so intolerable that a reasonable person in the employee‘s position would have felt compelled to resign.
Appellants objected to the proposed charge on the record, arguing that Aguilar voluntarily resigned and that no evidence was presented indicating working conditions which forced him to resign. Appellants’ argument is similar to the one made in Passons v. University of Texas at
The record reflects that Aguilar was regarded as a good and competent employee prior to his injury, to the point that he was considered a “very good installer” and was “the best or one of the best.” Following his injury, Aguilar was to be placed on light duty. However, within days of his injury, he was mocked and informed that his injury was costing the department and Appellants money and interfering with the department‘s quota system. Appellant was told that his workers’ compensation claim would be denied and that if he could not do installs, he would be fired. Appellants advised Aguilar that his only option, apart from returning to performing installs, was to go on leave without pay pursuant to FMLA. Aguilar testified that he did not fully understand FMLA leave. Aguilar was the sole source of income for his family, including his three children, and as his workers’ compensation benefits were not being paid, he felt compelled to seek other employment.
Based on the record, we find that a jury could reasonably conclude that Aguilar was constructively terminated based on the conditions created where Aguilar was given no alternative to returning to full duty as an installer, in spite of his light duty restrictions, other than to accept unpaid FMLA leave. We find no error under the Gutierrez analysis stated above. Appellants’ third issue is overruled.
IV. Improper and Prejudicial Character Evidence
Appellants’ fourth argument is that the trial court erred in admitting the testimony of Lawrence Chavez, a former employee who was not employed by Appellants at the time Aguilar was injured. Chavez had no personal knowledge of Aguilar‘s injury, his workers’ compensation claim, or his termination. Prior to the start of the trial, Aguilar had indicated his intent to introduce testimony of four former employees of Appellants in order to show hostility towards employees who filed workers’ compensation claims. Appellants objected to such testimony. Eventually, the trial court excluded testimony of two of the witnesses, and Chavez was the only witness whose testimony was presented.11
Evidentiary matters are within the sound discretion of the trial court. Cunningham v. Hughes & Luce, L.L.P., 312 S.W.3d 62, 70-71 (Tex.App.-El Paso 2010, no pet.). A trial court abuses its discretion when it acts without regard for any guiding rules or principles. Id. Stated differently, the appropriate inquiry is whether the ruling was arbitrary or unreasonable. Id., citing Smithson v. Cessna Aircraft Company, 665 S.W.2d 439, 443 (Tex.1984); Landry v. Travelers Ins. Co., 458 S.W.2d 649, 651 (Tex.1970). We will not reverse a trial court for an
Appellants argue that the admission of Chavez‘s testimony constituted improper character evidence which was unduly prejudicial and should have been excluded. Aguilar contends that the testimony was relevant and admissible to show hostile and discriminatory attitudes towards workers’ compensation claimants by Appellants.12
Clearly, Chavez’ testimony was relevant to the uniform application of Appellants’ absence control policy and to the
We do not find that the admission of Chavez’ testimony probably rendered an improper judgment given that there was a substantial preponderance of both legally and factually sufficient evidence presented at trial to support Aguilar‘s claim of retaliation under
V. Exemplary damages
Appellants’ final issue asserts that the evidence at trial is legally and
The Texas Supreme Court recently discussed the scope of “actual malice” in Safeshred, Inc. v. Martinez, 365 S.W.3d 655 (Tex.2012). The underlying case in Safeshred concerned a Sabine Pilot13 wrongful termination case where the plaintiff sought exemplary damages. The Supreme Court‘s discussion of workers’ compensation retaliation claims for comparison and use in a Sabine Pilot analysis has bearing here. Safeshred, 365 S.W.3d at 660-61. The Supreme Court noted that “willfulness alone cannot also justify a punitive damages award,” and that “more is required.” Id. at 662, citing Cazarez, 937 S.W.2d at 454 (requiring “actual malice“). The Safeshred Court noted that the “‘substantial injury’ referred to ... must be something ‘independent and qualitatively different from the ... compensable harms associated with [the cause of action].‘” Id. at 662 (citation omitted). Examples of this type of malice might be “where the employer circulates false or malicious rumors about the employee before or after the discharge ... or actively interferes with the employee‘s ability to find other employment.” Id. (citations omitted). The Supreme Court noted that “[d]amage to the employee‘s reputation or future employment prospects” was a “qualitatively different injury” than the actual termination, and that “conscious indifference to a risk of that injury” might warrant exemplary damages. Id. at 663. The Court also noted other cases where malice was found when the employer engaged in harassment in connection with a wrongful firing.14 The Court stated that malice may exist where “an employer knows the retaliatory firing is unlawful and does it anyway.” Id. at 663 (citation omitted). The Court held that malice could be shown by evidence that the employer, in firing the employee, “consciously ignored a risk of some additional serious harm, such as interference with his future employment, harassment, or terminating his employ-
Aguilar‘s evidence does not rise to the level of clear and convincing so as to establish that Appellants acted with the requisite ill-will or specific intent to injure Aguilar or consciously ignored a risk of some additional serious harm. Aguilar‘s best evidence of malice comes from the testimony of Chavez, who testified about how Appellants treated him following his injury. However he provided no testimony regarding how Appellants treated Aguilar. See Safeshred, 365 S.W.3d at 660-63. The record reflects that Appellants’ accepted the legitimacy of Aguilar‘s injury, sent him to receive treatment and initially placed him on light duty. While the record shows that both Rivers and Fragoso acknowledged that they knew it was against the law to discriminate against an employee because he filed a workers’ compensation claim, the evidence does not show that Appellants harbored malice or ill-will toward Aguilar personally, or that they undertook actions designed to affect his future employment prospects or his reputation.15 There is no evidence in the record that Appellants had a malicious intent to harm Aguilar when they terminated him, let alone evidence sufficient to meet the requisite heightened standard under Continental Coffee Prods. Co. and Safeshred. While Appellants’ actions “may not have been handled in the best possible and most ideal manner,” (Hecht, 225 S.W.3d at 118), they are not “wanton” nor do they ignore the risk of some other serious harm. See also Stevens v. Nat‘l Educ. Ctrs., Inc., 990 S.W.2d 374, 377 (Tex.App.-Houston [14th Dist.] 1999, pet. denied)(finding insufficient evidence of malice where plaintiff was terminated for unlawful reasons, her supervisors were angry with her about her workers’ compensation injury and doubted its validity, flung papers at her, and disliked her). Appellants’ final issue is sustained.
CONCLUSION
Having overruled Appellants’ first four issues and sustained Appellants’ fifth issue, the judgment of the trial court is affirmed in part and reversed in part. That portion of the judgment awarding exemplary damages is reversed, and we render judgment that Appellee take nothing on his claim for exemplary damages.
CHRISTOPHER ANTCLIFF
JUSTICE