*2 RICKHOFF, Before LOPEZ and *3 ANGELINI, JJ.

OPINION

ANGELINI, Justice. entry appeal judg-

This is an from the appellee wrongful in favor in a termi- ment points appel- nation suit. In three 1) lant contends that the trial court erred refusing appellant to order that be reinstated 2) job; failing in his the trial court erred 3) appellant punitive damages; to award and failure to for men- award anguish against great weight tal and preponderance of the evidence. FACTUAL AND PROCEDURAL

BACKGROUND litigation, appellant, Prior to this Charles Martin, employed typesetter was as a with Plans, appellee, During Texas Dental Inc. employment, appellant began his to suffer Appellant migraine headaches. attrib- utes his headaches to the sub-standard com- puter using monitors he was at Texas Dental. that he his im- testified informed supervisor, the hu- mediate director department, president man resources company computer that the monitors contributing were to his headaches. Howev- er, all three of these individuals testified that appellant any never notified them of work injuries problems comput- related with the fact, appellant’s supervisor er monitors. that appellant testified indicated that his headaches were a result of scar tissue on his brain.

Representatives of Texas Dental testified that, early implemented company computer system new which resulted appellant’s position. Appellant elimination of paying position which he was offered a lower accepted. Appellant alleges position that his reported was eliminated because he had computer working monitors as an unsafe con- Brock, Brock, Occupational Safety Karl B. W. Burl & Health Watkins dition to the Brock, P.C., Antonio, Appellants. days Eight accepting San for Administration. after position, appellant

his new a formal filed — Dallas n.r.e.). complaint Compen- the Texas with Workers’ writ ref 'd sation Commission. He was terminated six presented at trial re evidence days Appellant alleges later. that he was notice garding whether Texas Dental had he the workers’ terminated because filed compensa filed a had workers’ compensation claim. prior con tion claim to his termination was no knowledge contends that it had flicting. Appellant informed testified that he had filed a workers’ claim, supervisor that he would file a Ac- claim the time he terminated. representatives while Texas Dental testified Dental, cording was ter- that no one at Texas Dental knew performance poor minated work and ex- *4 a after had appellant had filed claim until cessive absenteeism. fact, rep been terminated. In Texas Dental Appellant this wrongful filed termination that unaware resentatives testified were jury suit and a on the case tried to appellant compensa that even had workers’ October 1995. The that determined Appellant, complaints. tion related on the appellant Texas had in discharged hand, repeated that he other testified made Compensa- violation Texas of the Workers’ computer complaints regarding the monitors Act; actu- appellant tion that had suffered no supervisor, to his the human di resources willfully damages; al Texas that Dental had rector, company. president and the of the discharged maliciously appellant; or and that $100,000.00 puni- suspicious record a appellant to in also reflects set of was entitled appellant’s point circumstances of view. tive Because the found no shortly Appellant filing a actual trial a was demoted after damages, the court entered take working complaint regarding with the nothing judgment in favor Dental. OSHA of Texas Then, only Dental. six conditions days compensation after he a workers’ filed AND ARGUMENTS AUTHORITIES claim, he Texas Dental was terminated. Liability A. appellant poor claims was terminated error, point appellant In his of con- first However, performance. work the record re- failing tends that trial court in the erred to only that in his new flects had been position reinstate him to his former at Texas prior position for weeks to his termi- two appellant’s Dental. Because reinstatement certainly argued nation. It that two could depends finding liability, point a of we will on enough develop time hardly weeks is first address Texas Dental’s conditional cross performance poor work record. point sufficiency challenging the factual of light conflicting regard- In of evidence the finding supporting the of evidence the ing knowledge appellant’s of Dental’s wrongful discharge. claim close' and the workers’ sufficiency considering

In a factual of the proximity filing time between his point, termination, we assess all must the evidence and and the claim his evidence only challenged trial if reverse for a new the finding sufficient conscience, finding clearly shocks the demon of 451.001 was terminated in violation section bias, against great weight strates is so the Appellee’s of the Texas Code. first Labor preponderance the that it of evidence point conditional cross is overruled. Co., manifestly unjust. Pool v. Ford Motor (Tex.1986); Cain v. S.W.2d B. Reinstatement

Bain, (Tex.1986). 175, 176 Un alleges By first his finders, analysis, der this we are not fact we into his that he is to reinstatement entitled witnesses, pass credibility upon do not position at Texas Dental. Section former judgment we our for that of nor do substitute provides: 451.002 of the Texas Labor Code fact, conflicting trier even if there is (a) person A violates 451.001 conclusion who Section upon evidence which different damages incurred Corp., is hable reasonable supported. Clancy could be v. Zale .for Kunze, by employee clearly plaintiff as a result of the viola- did Therefore, tion. the court seek reinstatement. (b) did not address the issue of whether both employee An discharged in violation of monetary damages reinstatement and would Section 451.001 is entitled to reinstatement plaintiff request- have available position been had employment. the former importantly ed More to this reinstatement. (Vernon 1996). § 451.002 Tex.Lab.Code Ann. case, provides guidance Kunze no as to contends that because the mandatory whether is a reme- reinstatement discharged determined that he had been dy requested when it has been and a viola- position from his at Texas Dental in violation tion of the Labor Code has been affirmative- 451.001, of section he is entitled reinstate- ly found. Appellant affirmatively requested ment. re- pleadings instatement both oral in no law Because there Texas case and written motion. 451.002, guide interpreting us in section Texas Dental contends the remedies plain meaning we must turn to the monetary damages reinstatement and determining meaning statute. of a duplicative. Dental, According to Texas language statute where the of the statute is only elected to submit issue unambiguous, clear and extrinsic aids and *5 monetary damages jury. to the Because statutory inappro rules of construction are did not submit a question re- Motors, Inc., priate. Cail v. Service 660 reinstatement, garding argues Texas Dental (Tex.1983). 814, 815 We must follow now, may only that he after the statute, language the clear and seek that monetary determined he suffered no the legislature intent of the as found in the damages, remedy seek the of reinstatement. plain meaning and common of the words and addressing Texas case law the issue of terms used. Monsanto v. Cornerstones Co. in wrongful discharge reinstatement cases is District, 937, Mun. Util. 865 S.W.2d 939 sparse. Appellant relies on Bullock v. Amo- (Tex.1993). Co., (Tex. 899, co Production 608 S.W.2d 901 provides Section 451.002 that an em 1980) 551, Mingus Wadley, 115 Tex. ployee discharged in violation of the Labor (1926), 285 proposi- S.W. 1087 for the Code, is entitled to recover reasonable dam statutory tion that mandatory remedies are ages and to be reinstated into his former complied and must respects. be with in all position. nothing There is in the statute that while involve statutes created would indicate that reinstatement and mone law, derogation in of the common both of tary damages mutually exclusive reme these cases necessity address the for statuto- fact, provision dies. other than the that ry compliance jurisdiction in order for reasonable, there is no must attach in cases. Neither such case makes disjunctive language governing restrictive or exclusivity mention of the in of remedies Further, the remedies at all. the word “enti jurisdiction in those cases which has been 451.002(b) in tled” reference to section indi satisfied, and, therefore, provides sup- little that part cates there is no discretion on the port appellant’s position. for of the trial court where reinstatement is Kunze, In General Elec. Co. v. sought and violation of the Labor Code has denied), 826 writ — Waco been found. employee discharged court held that an filing Support interpretation gained a workers’ claim is not for this is 451.002(b) required to prerequi compared seek reinstatement as a when section is its VII, being monetary damages site to counterpart. awarded federal Title 42 U.S.C. 2000e-5(g) provides employ § under the statute. Id. at 831. Texas that when language discharged contends that the of Kunze can be ee has been in violation of federal law, may read to mean that reinstatement is an exclu the trial court enter an rein order and, therefore, remedy, sive appellant stating employee position. lost to his former Glitsch, Inc., right F.Supp. to reinstatement when he submitted Jones v. 489 990 added), aff'd., monetary damages jury. (N.D.Tex.1980)(emphasis issue of to the 634 Cir.1980). jury in this case deter- (5th found. Because Federal courts F.2d in viola- appellant that was terminated to mean mined that interpreted the statute have remedy, but affirma- preferred 451.001 and reinstatement tion of section reinstatement, Pruden right. E.E.O.C. v. the trial not an absolute tively requested Ass’n, 763 F.2d Savings Loan tial Federal & failing to order that in court erred (10th Cir.) (noting that whether feder position with to his former be reinstated rein failing in to order al trial court errs first of er- Appellant’s Texas Dental.1 depends on whether reinstatement statement sustained. ror is denied, feasible), cert. U.S. (1985). Had the L.Ed.2d 289 S.Ct. Damages Punitive C. remedy of re legislature intended the in the discretionary, as it is to be instatement error, appellant con- point of In his second only that it system, can conclude federal we failing in trial court erred tends that the discretionary language would have included found punitive damages award the language used statute similar to the that jury in this case determined jury. The Likewise, legis had the the federal statute. of sec- discharged violation appellant was discharged wrongfully intended for lature Code; however, the of the Labor tion 451.001 only one means employees to be limited jury found no actual intent recovery, have effected such it would actions Texas Dental’s that next determined disjunctive limiting or through the use of appellant had been willful discharging language in the statute. malicious, damages in the and found $100,000. jury found Because the amount Dental contends damages, no actual appellant suffered by fail request for reinstatement waived his appellant the not award reinstate the trial court did regarding an issue ing to submit *6 by jury. the damages found feasibility jury. punitive the or its to ment noth of the statute leaves language the clear recovery Section of

ing for a to determine. It is well settled 451.002(a) employee receipt is enti of provides that an to damages prerequisite is actual See, a violation damages where v. e.g., to reasonable Nabours exemplary damages. tled Accordingly, Ass’n, Code is found. Savings of the Labor Loan Longview liability the (Tex.1985); of under City once a determination Products 901, 903 made, (Tex. left to fact finder is Berman, 446, Code is the Labor 610 S.W.2d Corp. v. damages might Inc., Visions, what reasonable 1980); Tropical determine v. Newman is Conversely, where reinstatement 713, (Tex.App.—San be. to 721-22 891 S.W.2d An 451.002(b), only the section sought denied); under 1994, Mutual Nationwide writ nio finder is a to the fact question 335, available Holmes, 842 S.W.2d Ins. v. Co. liability is liability. Once denied); of determination writ (Tex.App Antonio . —San found, is to reinstate employee the entitled see also Ann. & Rem.Code Tex Civ.Prac. fact exist. questions of ment. No additional (Vernon (providing that Supp.1994) § 41.004 the Therefore, of an issue to the submission only awarded damages may be “[ejxemplary reinstate propriety the of jury regarding damages are than nominal damages other if futility that the an exercise ment would be case, awarded”). present a Specific to the intended. could not have legislature the work discharge under wrongful suit for act, must re employee 451.002(b) ers’ plain language of section The to he is entitled damages before cover actual unnecessary that it is clearly demonstrates Houston exemplary recover to be submit- of reinstatement for the issue King, 788 S.W.2d Med. Ctr. Instead, Northwest requires jury. the statute to a ted (Tex.App. Dist.] [1st 181-82 requested it has been where reinstatement — Houston writ). no 451.001 has been liability section under case, plaintiff elect the reme- must a recovery In such concerns double 1. We note that plaintiff dy is awarded to receive. which a he wishes in cases in raised wages and also seeks reinstatement. lost future King, liability (citing equitable remedy no in which the found eases however, property has of to which damages; and no actual it went on involved the return assigned); to find malicious conduct and exem value was see also Fillion v. awarded $20,000.00. plary Troy, damages of Id. at 180-81. — Houston n.r.e.) (awarding writ ref'd jury questions regarding [1st Dist.] The court held that punitive damages fair where market value exemplary damages malicious conduct and property ordered to be returned was found legally significant only ques become where by jury). pertaining liability to tions and actual dam ages affirmatively. have been answered Id. case, present In the obtained no at 182. contends that reinstate finding equitable of the value of the relief damages ment is form of actual sufficient to sought punitive on which an award of dam- support recovery punitive damages. ages could be based. While a issue is Therefore, appellant argues that because he reinstatement, necessary to the award of reinstatement, is entitled he is also enti puni- if such relief is to serve as a basis for punitive damages tled to the awarded damages, finding regarding tive an issue and

jury. Appellant maintains that the value of necessary. the value of the reinstatement proven by reinstatement was uncontradicted Nabours, (stating 700 S.W.2d at 905 Cf. $160,- evidence at trial excess of plaintiffs if had not so limited the 000.00. damages, damage finding consideration of supporting punitive damages might have testimony to which refers made). Appellant’s point been second er- in support damages, submitted of actual ror is Accordingly, overruled. we do not support reinstatement, not in of the value of appellee’s points reach conditional cross and, importantly, rejected by more it was punitive error regarding damage findings jury. Even in damages cases where actual jury. recoverable, are not it necessary is still allege, prove, jury findings and secure on the Anguish Damages D. Mental existence and amount damage actual suf- appel In his third ficient to an award of dam- lant Nabours, jerry’s contends that the failure to age. find (emphasis S.W.2d at 903 added). anguish contrary for mental Assuming, for argument, the sake of overwhelming weight of the evidence. that reinstatement ais form of actual dam- *7 anguish compensable injury Mental is a ages, even if did introduce evidence damages may pro which be The reinstatement, of awarded. the value of he to failed awarding injury cess of damages for such an jury finding secure a that support would an is anguish difficult because mental consti punitive damages. award of subjective, non-peeuniary tutes a loss. Appellant alternatively argues that rein- Therefore, anguish damages mental are with equitable remedy statement is an which does jurors in the discretion of the who are best preclude recovery punitive not of dam- determine, by referring to suited to their ages. It is true that Texas courts will not experiences, degree own to which deny punitive damages because an action is plaintiff compensable has suffered mental an equitable legal. rather than Id. at 905. Garrard, guish. Hosp. St. Elizabeth v. 730 However, punitive damages must bear a rea- 649, (Tex.1987), 654 S.W.2d overruled on oth proportion damages sonable to actual wheth- (1993); grounds, er 855 S.W.2d 593 see GAB sought monetary er are in relation to Services, Moore, Business Inc. v. 829 S.W.2d damages equitable relief. Alamo Nat’l 345, 1992, (Tex.App. 350 no — Texarkana Kraus, (Tex. 908, Bank v. 910 writ); City Ingleside Kneuper, v. of 1981). punitive In the in eases which dam- (Tex.App. writ S.W.2d — Austin ages equitable have been awarded incident to denied). relief, a assigned fact finder has a concrete equitable value to the by appellant relief awarded suffi- The evidence submitted support cient to support anguish award of dam- claim of his for mental Nabours, ages. testimony, testimony See S.W.2d at 904 n. 3 consisted of his of wife, subjective a treating the records of his We must note the nature of and psychiatrist, question Dr. mental and the discre anguish Jimenez. Dr. Jimenez’s wide diagnosed appellant given juries determining ques tion such records indicate that he to Arias, disorder, epi- “major depressive single with tions. See Steel Co. Worsham stress; sode, psychotic, secondary job Paso no non to - El writ) of pain agoraphobia secondary (finding that a award disorder within unreviewable). stress; virtually job job anguish for mental is leading to severe to stress standard, supports Under such a the record Dr. records problems.” current Jimenez’s jury’s finding anguish. Ap no mental reported difficulty the of indicate that pellant’s point of error is overruled. third crying spells, a sense sleeping, of worthless- drive, helplessness, ness a loss of and and sex portion judgment the trial court’s feelings guilt and shame. him- awarding monetary damages is appellant no experienced great self testified that he judgment deny- portion affirmed. The of the thoughts sense suicidal after of loss and had ing appellant’s motion for reinstatement is job Appel- he lost his with Dental. ap- rendered judgment reversed and appellant’s lant’s wife testified that loss of his pellant position be reinstated to he held job problems resulted marital between the Plans, at Texas Inc. on date that two of them. he was terminated. certainly sup- this evidence would While RICKHOFF, J., concurs. port anguish, finding of mental when it is record, light of the it is considered entire Justice, RICKHOFF, concurring. finding also of no sufficient example why just This the latest case First, Dr. rec- anguish. mental Jimenez’s Supreme the Texas Court should revisit the appellant’s complaints ords and indicate very juries basic issue of whether should him symptoms, conveyed by appellant as their in civil advised the effect of answers Dr. as observed Jimenez himself. cases. Dr. no knowledge Jimenez had direct law, appellant’s symptoms making juries cause when Under current civil Additionally, Dr. rec- of their his notes. Jimenez’s allowed know the effect answers. school, speak “job ords stress” in refer- Tex.R.Civ.P. 277. Since law I have largely prohibition dichotomy, as an odd poor working ence about viewed this to the conditions only jurisdiction complained, considering are the which not in reference we sentencing in complete allows criminal cases. to his termination. Thus, jurors we resolve most ask life’s also Dr. records reflect that Jimenez’s cases, in criminal but in civil difficult issues depression treated for had been knowing we the effect cases shield them job. symptoms prior similar to the loss of his issues, of their answers to the submitted *8 however, Appellant, said that not he had integrity apparently distrusting their and de- psychiatric past. treatment in the received meaning intelligence. their evidence, conflicting this the face of clearly thought jury Here Texas Den- jury question appellant’s was entitled engaged reprehensible conduct their tal credibility. could also deter- have Yet, $100,000 award of predisposed to de- mined law because were not told Further, pression. exten- testified damages in or- requires to find actual them sively migraine about his severe headaches punitive damages, der to an award resulting seizure He did disorder. completely the will of this thwarted. job, this illness to the loss of his attribute but, appellate working It an intermediate poor not for again, to the conditions applied precedent. consistently court alter Dental. The could have deter- require in-depth an appellant’s an- would much of mental Such alteration mined that illness, implications of analysis his and resolution guish not from stemmed beyond this case. With these change such a termination. comments, join majority few additional I

opinion. J.F., Jr.,

In the Matter of A Minor. No. 04-96-00012-CV. Texas, Appeals Court of San Antonio. April 1997. Rehearing May Overruled 1997.