Present:      All the Justices

WALTER C. COOLEY
                       OPINION BY JUSTICE LEROY R. HASSELL, SR.
v.   Record No. 981313              April 16, 1999

TYSON FOODS, INC., A NORTH
CAROLINA CORPORATION

           FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                      James B. Wilkinson, Judge

      In this appeal we consider whether a discharged employee

presented sufficient evidence to support a jury's finding that

he was fired by his former employer because he had intended to

file a workers' compensation claim.

      Walter C. Cooley filed a motion for judgment against

Tyson Foods, Inc., and its personnel manager, Leonard Parks.

Cooley, relying upon Code § 65.2-308 * , alleged that he was

terminated solely because he intended to file a claim under

      *
          Code § 65.2-308 states in part:

           "A. No employer or person shall discharge an
      employee solely because the employee intends to file
      or has filed a claim under this title or has
      testified or is about to testify in any proceeding
      under this title. The discharge of a person who has
      filed a fraudulent claim is not a violation of this
      section.
           "B. The employee may bring an action in a
      circuit court having jurisdiction over the employer
      or person who allegedly discharged the employee in
      violation of this section. The court shall have
      jurisdiction, for cause shown, to restrain
      violations and order appropriate relief, including
      actual damages and attorney's fees to successful
      claimants and the rehiring or reinstatement of the
the Virginia Workers' Compensation Act.   Cooley nonsuited his

claim against Parks and at a trial, the jury returned a

verdict in favor of Cooley in the amount of $36,450.   The

circuit court granted Tyson Foods' motion to set aside the

jury's verdict.   The circuit court held that Cooley failed to

prove that he had intended to file a workers' compensation

claim and that Cooley failed to establish that Tyson Foods had

discharged him solely because he had intended to file such

claim.   Cooley appeals.

     Even though the circuit court set aside the jury's

verdict, we accord the recipient of a jury verdict the benefit

of all substantial conflicts in the evidence and all

reasonable inferences which may be drawn therefrom.

Therefore, we will state the facts in the light most favorable

to Cooley, and if there is any credible evidence in the record

which supports the jury's verdict, we will reinstate that

verdict and enter judgment thereon.    Holland v. Shively, 243

Va. 308, 309-10, 415 S.E.2d 222, 223 (1992).

     Cooley had been employed with Tyson Foods for

approximately 29 years.    On August 5, 1996, Dr. Brenda Ray,

Cooley's personal physician, examined him for urological

problems.   During that examination, Cooley asked Dr. Ray to



     employee, with back pay plus interest at the
     judgment rate . . . ."

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examine his back.    According to Cooley, Dr. Ray examined his

back and found nothing wrong with him.

        The next day while working at a Tyson Foods' facility,

Cooley experienced a "bad pain in [his] back" when he tried to

place a cart upon a table while performing his duties as a

maintenance mechanic.    Cooley was transported to the medical

department where Pat Gasque, Tyson Foods' supervising nurse,

obtained his medical history.    While Gasque was completing a

form described as an "injured workers' statement," she asked

Cooley:    "Have you recently or in the past injured yourself

off the job?"    Cooley responded, "no."   Gasque recorded

Cooley's response on the form and Cooley signed it.

        Gasque made arrangements for Cooley to be taken to a

hospital's emergency room because he continued to experience

pain.    After the emergency room personnel treated Cooley, he

returned to Tyson Foods' facility.

        When Cooley arrived at work the next day, Gasque referred

him to Dr. Douglas A. Wayne, a physician who practices

physical medicine and rehabilitation.      Dr. Wayne performed an

evaluation of Cooley and determined that he was experiencing

pain on the left side and back of his body.     Dr. Wayne also

took a medical history from Cooley.

        After conducting this physical examination, Dr. Wayne

decided to contact Dr. Ray to discuss Cooley's medical


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condition.   During a telephone conversation, Dr. Ray informed

Dr. Wayne that Cooley had been to see her on August 5, 1996,

and that he complained about "left side back pains, very

similar" to the conditions that he had described to Dr. Wayne.

Dr. Ray further advised Dr. Wayne that Cooley had informed her

that he hurt his back when he had "been hit hard by some

waves" at a beach on August 4, 1996.    When Dr. Wayne informed

Cooley that Dr. Ray stated that Cooley had been injured on

August 4, Cooley did not respond.    "He didn't say anything."

     Gasque, who had accompanied Cooley to Dr. Wayne's office,

learned that Dr. Ray had treated Cooley for a back injury he

incurred at a beach.   She conveyed this information to Parks,

who suspended Cooley from work and conducted an investigation.

Parks obtained a letter that Dr. Wayne had written to Gasque

which stated, in pertinent part:     "After Mr. Cooley was seen I

contacted Dr. Ray to discuss the situation and to see if she

could see him soon.    It was at that time that she relayed that

Mr. Cooley had been in her office two days ago complaining of

left side and back pain.   He gave her the history that he had

hurt himself at the beach over the weekend and had been hit

hard by waves and had banged his flank and back into the

sand."

     Parks also obtained Dr. Ray's notes which indicate that

Cooley had injured his back on August 4, 1996.    Parks reviewed


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medical records that Dr. Wayne and Dr. Ray had forwarded to

him and decided to terminate Cooley's employment because he

had made a false statement that he had not been injured

"recently or in the past . . . off the job."

     Code § 65.2-308 requires that Cooley present evidence

which establishes that he was terminated solely because he had

intended to file a workers' compensation claim.   Cooley,

relying upon Charlton v. Craddock-Terry Shoe Corp., 235 Va.

485, 369 S.E.2d 175 (1988), argues that he presented

sufficient evidence to meet this statutory requisite.   Tyson

Foods asserts that Cooley failed to establish by a

preponderance of the evidence that he was fired solely because

he intended to file a workers' compensation claim.   We agree

with Tyson Foods.

     In Charlton, we considered whether the evidence supported

a jury's verdict finding that an employee had been discharged

because she had incurred a work-related injury or disease for

which she had intended to file a claim under the Virginia

Workers' Compensation Act.   The plaintiff developed tendonitis

in her right hand caused by the performance of her assigned

duties.   The plaintiff received an award of workers'

compensation benefits for lost wages and the cost of medical

treatment.   Subsequently, the plaintiff was required to leave

work and seek treatment for pain in the same hand at the


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emergency room of a hospital.   235 Va. at 487, 369 S.E.2d at

176.

       When the plaintiff returned to work, she was summoned to

a meeting, and the defendant required her to sign a form which

waived her right to claim compensation benefits related to

certain physical conditions.    Id.   The plaintiff declined to

sign the form because she did not understand it.    235 Va. at

488, 369 S.E.2d at 176.   Later, the defendant informed the

plaintiff that if she persisted in her refusal to sign the

waiver form, she would be terminated.    The plaintiff signed

the form and delivered it to her employer, who forwarded the

form for approval to the Workers' Compensation Commission.

The plaintiff then retained counsel who withdrew the waiver,

and the Workers' Compensation Commission advised the defendant

that the Commission would not approve the waiver.     Id.   The

defendant fired the plaintiff four days before the plaintiff's

attorney had withdrawn the waiver and six days before the

Commission refused to approve the waiver.    235 Va. at 490, 369

S.E.2d at 177-78.

       During cross-examination, the plaintiff stated that she

was fired because she had refused to sign a waiver of her

right to claim workers' compensation benefits.    235 Va. at

488, 369 S.E.2d at 177.   Relying upon this testimony, the

defendant argued that the plaintiff's evidence showed that she


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was not fired solely because she intended to file a workers'

compensation claim and that her refusal to sign the waiver

constituted a separate reason for her dismissal.   235 Va. at

488-89, 369 S.E.2d at 177.   Rejecting the defendant's

contentions, we held that the record in Charlton revealed that

the defendant's motivation for terminating the plaintiff was a

matter outside the realm of her knowledge and that the

evidence when considered in its entirety supported the jury's

finding that the plaintiff was discharged solely because she

had intended to file a workers' compensation claim.   235 Va.

at 490, 369 S.E.2d at 177-78.    See also Mullins v. Virginia

Lutheran Homes, 253 Va. 116, 119-20, 479 S.E.2d 530, 532-33

(1997).

     Here, unlike Charlton, the evidence of record reveals

that Cooley failed to prove by a preponderance of the evidence

that Tyson Foods fired him solely because he intended to file

a workers' compensation claim.   The evidence of record clearly

establishes that Tyson Foods, which had conducted a thorough

investigation, was entitled to conclude, based upon the facts

it adduced during that investigation, that Cooley had made a

false representation to Tyson Foods.   Thus, Tyson Foods had a

legitimate non-pretextual reason to terminate Cooley which

cannot subject Tyson Foods to liability under Code § 65.2-308.




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     Accordingly, we will affirm the judgment of the circuit

court.

                                                      Affirmed.




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