                                 MEMORANDUM OPINION
                                        No. 04-11-00402-CV

               CITY OF SAN ANTONIO, and its Agent, San Antonio Water System,
                                     Appellant

                                                 v.

                             Albert Kevin MARTIN a/k/a Kevin Martin,
                                            Appellee

                     From the 224th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2008-CI-18763
                             Honorable Richard Price, Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Karen Angelini, Justice
                  Sandee Bryan Marion, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: August 29, 2012

AFFIRMED AS MODIFIED

           This appeal arises from a whistleblower action filed by Albert Kevin Martin against his

former employer, San Antonio Water System and the City of San Antonio (collectively

“SAWS”). After a jury found in favor of Martin and awarded him damages, SAWS appealed to

this court, arguing that (1) the evidence is legally and factually insufficient to prove causation;

and (2) the evidence is legally and factually insufficient to support the jury’s award of

compensatory damages. We find the evidence legally and factually sufficient to prove causation,
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but because we hold there is no evidence to support the jury’s award of compensatory damages,

we modify the judgment to delete all references to compensatory damages. As modified, we

affirm the judgment.

                                         BACKGROUND

       In December 2001, Martin was hired by SAWS to work in its Distributions and

Collections Operations in its Northwest Service Center, and after working at SAWS for only six

months, he was promoted to equipment operator. Martin received excellent work evaluations,

which were admitted into evidence at trial. An evaluation dated May 9, 2002, reflected that

Martin made “sound and informed decisions”; was “very considerate of others within and

outside the organization”; demonstrated “superior skills when performing his job”; made “few

errors and [wa]s very thorough”; and “listen[ed] attentively.” His direct supervisor stated in

Martin’s evaluation that “Mr. Martin is a very good employee to work with.” In an evaluation

dated March 18, 2005, Martin’s supervisor stated that Martin’s performance “achieved

expectations in some categories, and in other categories, he substantially exceed[ed]

expectations.” In his evaluation dated March 9, 2007, Martin’s supervisor, noting that Martin had

“good work ethics,” stated that Martin “needs to think about getting a higher position.”

       At trial, Martin testified that in late 2006, he became concerned with how SAWS was

handling and disposing of pipe that contained asbestos at the Medio Creek site. He believed

SAWS’s practice of crushing the pipes created dust with asbestos particles that was dangerous to

workers and the community. He was also concerned with the manner in which SAWS was

disposing of the pipes at a dump site, which was operating like a landfill. He brought his

concerns to his supervisor, Arnulfo Mesa, but was told that the way in which the SAWS

employees were handling and disposing of the pipes containing asbestos was not dangerous. He



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then took his concerns to Tracy Marlowe, who relayed Martin’s concerns to Will Pickford, a

SAWS safety specialist. Martin gave Pickford pictures of asbestos pipe lying in clear view near

Bandera Road. Pickford told Martin that “things move painfully slow around here,” but that

Martin should not “give up hope” and that “hopefully, it will get looked at.” When Martin saw

nothing happening within SAWS, in January 2007, he made a complaint to the Texas

Commission on Environmental Quality (“TCEQ”). In April 2007, Henry Karnei, who was with

the TCEQ, called Martin and said that SAWS “wanted to get together” with the complainant and

“try to bring this issue to an end.” Karnei asked Martin if he would be willing to give up his

anonymity and meet with SAWS officials. Martin replied that he was concerned SAWS would

retaliate against him for reporting the illegal dump site. In response, Karnei said he would call

Steve Clouse, vice president of SAWS’s Production and Treatment Operations. According to

Martin’s testimony, Clouse responded that the complainant would be protected under the

Whistleblower Act. Thus, Martin gave up his anonymity and on July 30, 2007, Martin met with

TCEQ and SAWS officials, including Clouse; Raymond Perez, a SAWS manager; David

Bascom, a SAWS safety official; and Alan Jones, an investigator with TCEQ. Thus, as of July

30, 2007, upper management of SAWS was aware that Martin was the person who had filed the

complaint with TCEQ. Martin testified that when he expressed his concerns at the July 30, 2007

meeting, he was told by Clouse that “we’ve always done it this way.” Later, in October 2007,

Martin made a second complaint to TCEQ about a SAWS storage yard on O’Connor Road,

stating that asbestos-containing concrete pipe was in a creek bed on the site. Martin continued to

be in contact with TCEQ regarding SAWS’s remediation efforts. Martin testified that after he

gave up his anonymity, he was treated differently at work, and the foremen and his co-workers

stopped talking and interacting with him. After Martin complained to TCEQ, SAWS instituted



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new procedures for handling and disposing of asbestos pipe. According to Martin, there were a

lot of complaints among the foremen and workers about the new procedures, and comments were

made that Martin was the cause of these new procedures. On February 15, 2008, Martin was

placed on administrative leave, and on August 5, 2008, Martin was given a Notice of Proposed

Termination. The reasons given by SAWS for his administrative leave and for his proposed

termination were unrelated to his TCEQ complaint. Instead of being terminated, Martin retired.

He later sued SAWS for constructive discharge in violation of the Whistleblower Act.

       At trial, Alan Jones, an investigator with TCEQ, testified that he was assigned to

investigate the complaint made by Martin. According to Jones, he went to the Medio Creek site

unannounced and met with people who took him to the disposal or fill area. Jones found what

looked to be asbestos-containing concrete pipe in three locations on the site. Thus, Jones testified

he was able to substantiate Martin’s complaint. A notice of violation was issued, and on May 4,

2007, Clouse, SAWS’s vice-president of Production and Treatment Operations, wrote a letter in

response:

       SAWS does not believe a notice of violation is appropriate in this case, as there is
       no storing or disposing of asbestos-cement (AC) pipe or municipal solid waste at
       the Medio Creek Water Recycling Center. We appreciate the opportunity to
       provide you with additional information regarding our efforts and to continue our
       positive work with the Region 13 office. As we mentioned in our February 9,
       2007, letter, the site is used as a location to deposit only appropriate clean fill
       material from SAWS utility work. Prior to the site visit by Mr. Jones of the TCEQ
       staff on February 2, 2007, SAWS had instituted the following materials handling
       improvements to be used in our operations and at the Medio Creek Water
       Recycling Center:

            •   Review and update of AC pipe handling policies and procedures
            •   Use of an approved contractor to ensure proper transportation and disposal
                of AC pipe
            •   Mandatory training of foremen and crews on proper handling and disposal
                of AC pipe
            •   Separation of waste materials from clean fill prior to transportation to the
                Medio Creek facility

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           •   Training of maintenance employees and foremen on proper fill material
               allowed at the site
           •   Routine monitoring of deposited clean fill material at the Medio Creek site
                   o Weekly inspections by the facility manager

       During the visit by Mr. Jones, a member of TCEQ staff, three small fragments of
       alleged AC pipe were observed and collected. Since the visit, SAWS has
       instituted the following additional procedures:

           •   Enhanced monitoring of deposited clean fill material at the Medio Creek
               site
                    o 2-3 inspections/week by the facility manager
                    o 2 inspections/week by the Service Center General Foreman
                    o 2 inspections/month by a SAWS environmental analyst
           •   Relocation of a dumpster and a separate roll-off box at the Medio Creek
               fill site for any unacceptable fill material observed during leveling of clean
               fill or inspections

       SAWS has a robust program to manage waste generated in our system repair
       work and to monitor the Medio Creek site. In direct response to the notice of
       violation, we organized a crew of employees to again walk the site (pictures
       enclosed) looking for possible evidence of waste materials – specifically small
       fragments of AC pipe. Any materials that may be observed at Medio Creek will
       be properly handled and disposed of through our approved contractor. . . . Simply
       stated, SAWS is not using the Medio Creek site to dispose of asbestos pipe or
       municipal solid waste.

Jones testified that he was unhappy with this response and found these statements to be

inaccurate and untruthful. Because the asbestos pipe was exposed, Jones believed there was a

health risk to residences and a nearby school. In December 2007, Jones met with his boss, Henry

Karnei, and Val Ruiz, vice president of SAWS’s Distributions and Collections Operations.

According to Jones, they discussed that TCEQ was going to require remediation of the site.

When asked whether Martin was discussed at the meeting, Jones testified, “My understanding

was that Mr. Martin was being insistent that the matter be addressed. To me, this is something

that once it was in our system, then we had a notice of violation [and] it would get addressed.”

When asked to clarify whether Martin forcing the issue was specifically discussed, Jones

testified that all he could remember was that “Kevin Martin and the allegations were discussed.”

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When Martin made the second complaint regarding the O’Connor road site, Jones inspected it

and again found pieces that looked to be asbestos-containing concrete pipe on the surface.

       According to Jones, there was mutual frustration on his and Martin’s part that it was

taking so long to remediate the site. Jones testified that TCEQ has a policy that investigation at

the region level be concluded within six months or be referred to the remediation division in

Austin. Jones stated that “[t]his attempt to resolve the problem . . . exceeded those time frames.”

The case was transferred to Austin, and although Jones made recommendations, his

recommendations were not followed. Instead, Jones testified, the ultimate remediation plan

approved by TCEQ with regard to the Medio Creek site did not require the waste to be removed.

The plan provided for a capping and deed restriction process, which only required the pieces of

pipe to be covered with soil and a deed restriction to be put in place.

       Jones’s boss, Henry Karnei, Jr., the TCEQ waste program manager in charge of the

SAWS investigation, also testified at trial. Karnei testified that with respect to Martin’s

complaint, two violations were issued against SAWS: one for the Medio Creek site and the other

for the O’Connor Road site. After the Medio Creek violation was issued against SAWS, Karnei

testified that based on Jones’s investigation of the Medio Creek site, TCEQ disagreed with

SAWS’s position that no violation had occurred. Karnei testified that when SAWS proposed a

remediation plan, TCEQ rejected it because SAWS was not assessing the entire area, but was

instead looking at only the front third of the site and not the entire three or four acres. According

to Karnei, TCEQ required the entire area to be assessed, which increased the cost of remediation.

Karnei testified that although Martin’s complaint was filed in early 2007, it was not until May of

2010 that SAWS finally created a remediation plan approved by TCEQ.




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       SAWS argued at trial that Martin was not constructively discharged as a result of his

complaint to TCEQ but because of an unrelated email controversy involving pornographic

emails exchanged between SAWS employees. Martin was not involved in this email

investigation, as he did not have a SAWS computer, email, or ability to access SAWS’s

computer system. Martin’s friend, Mark Garcia, was involved and had received a Notice of

Proposed Termination in January 2008, which required him to make a response in three days.

When Garcia went to SAWS to deliver his response to SAWS’s Human Resources

representative, Michele McGervey, Martin testified that he accompanied Garcia for moral

support. According to Martin and Garcia’s testimony, because Garcia was unable to get past

security to deliver his response, Martin took Garcia’s written response past security, gave it to a

SAWS receptionist, and told the receptionist that Garcia was waiting in the lobby. Both Garcia

and Martin testified that McGervey came down to the lobby and spoke with Garcia. Martin did

not speak with McGervey. During her testimony at trial, McGervey claimed that Martin must

have created a disturbance for her to be called down to the lobby, although she had no

recollection of the event.

       On February 11, 2008, an “all-hands meeting” was called at the Northwest Service

Center where Martin worked to discuss the email investigation. Val Ruiz spoke to the employees

about the investigation. Martin asked Ruiz a question during this meeting. Some witnesses

testified that Martin waited until Ruiz asked the employees whether they had any questions, at

which point Martin raised his hand. Ruiz testified that Martin interrupted his presentation. Martin

then asked why SAWS was targeting the “little people” in its investigation and not two general

foremen. Some witnesses testified that Martin called the two foremen, James Stautzenberger and

Arnulfo Mesa, by name. Others testified that Martin pointed in the direction of Stautzenberger



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and Mesa. Martin specifically testified that he raised his hand and asked Ruiz, “Why are they

going after the little guys? How come they’re not going after management?” Martin testified that

Ruiz told him in response, “You have no proof that anyone’s name is on e-mails.” Martin, who

had been given copies of certain emails, testified that he said in response, “Yes, I do. I have

proof that two general foremen’s names, Arnulfo Mesa and James Stautzenberger’s names are on

e-mails.” According to Martin, Ruiz then said, “Gather your information and give them to me.”

Martin testified that he then said, “Well, let’s have a meeting with Dave Chardavoyne, the

president of SAWS, and the vice president, Jerry Bailey, and let’s sit down, and we’ll go over

those e-mails.” According to Martin, Ruiz then said he would set up the meeting. Ruiz also

testified that he told Martin to gather his information and that he would set up a meeting, but

Ruiz disputes the manner in which Martin asked his question. Both Ruiz and Michele McGervey,

SAWS’s Human Resources representative, testified that Martin was rude and inappropriate.

Other witnesses, however, who were also present at the “all-hands meeting,” testified that Martin

did not act inappropriately and that they did not think anything about his conduct.

       Martin testified that in response to Ruiz’s request and on his personal time, he began

accumulating hard copies of the emails from current and former employees off site so that he

could present the emails at the meeting Ruiz had promised to set up. And, on February 15, 2008,

Martin had the emails in his lunch bag on the work site in case he received a call from Ruiz

about the meeting. On that day, he was assigned to a foreman with whom he did not usually

work, Gilbert Zuniga. Zuniga was late to the work site because he had been interviewing at

SAWS for a general foreman’s position. When Zuniga arrived at the work site, one of the other

workers asked Zuniga how his interview went. According to Martin, Zuniga replied, “These guys

ain’t ready for me because if I make general foreman, I’m going to fire a lot of them.” Martin



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testified that Zuniga then mentioned he would “try to get rid of Arnulfo Mesa, because he was

lazy and didn’t do his job as general foreman.” Zuniga then turned and asked Martin, “Hey, do

you really have that information that Val Ruiz asked you about? By the way, I think you’re right

about the little guys getting terminated, because I have some emails with people’s names on

them.” According to Martin, Zuniga specifically said that he had an email with James

Stautzenberger’s name on it. Martin testified that Zuniga then said, “Let me see your proof that

you have for Val Ruiz.” So, they walked to the vehicle and Martin got his lunch bag with the

emails inside. He gave hard copies of the emails to Zuniga who began looking at them. Other

members of the crew approached and saw the emails as Zuniga was holding them. According to

Martin, Zuniga and the other crew members laughed when they saw the pictures in the emails.

Martin testified that he showed Zuniga the emails because Zuniga was his superior and because

Zuniga made him “feel comfortable that he was going to do something about it.” Zuniga handed

the emails back to Martin, and Martin put the emails back into his lunch bag.

       Zuniga testified that he never asked to see the emails and that Martin volunteered them

on his own. Zuniga stated that he found the pictures in the emails to be offensive and told Martin

to put them away. Zuniga then called the Northwest Service Center and told Martin that “they”

wanted to see him in the office. Zuniga drove Martin back to the Northwest Service Center for a

meeting with Gordon Mahan, the director of the Northwest Service Center; Michele McGervey,

the H.R. representative; and Josh Dean, a security officer. Martin was told that he was being

placed on paid administrative leave for showing the emails to Zuniga at the work site. Martin

responded that Zuniga had directed him to do so. On February 20, 2008, Martin again met with

McGervey, Ruiz, and Dean, at which time he gave them copies of the emails. On February 22,

2008, Martin’s lawyer responded to Martin’s being placed on administrative leave, asserting that



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SAWS appeared to be retaliating against Martin for reporting its conduct to TCEQ and that the

stated email reason was a pretext. On August 5, 2008, Martin met with Mahan and McGervey.

He was given a Notice of Proposed Termination, which listed the following grounds:

   •   Willful violation of any company policy or procedure; any deliberate action that is
       extreme in nature and is obviously detrimental to SAWS’s efforts to operate effectively.
   •   Immoral conduct or indecency on company property or while on duty.
   •   Disorderly/obscene or abusive language toward any employee or customer; indifference
       or rudeness toward a customer or fellow employee; any disorderly/antagonistic conduct
       on company premises.
   •   Any act of harassment, sexual, racial or other.
   •   Insubordination or refusing to obey instructions properly issued by a superior in your
       direct chain of command pertaining to your work.

       After hearing all the evidence, the jury found that SAWS had constructively discharged

Martin because Martin had in good faith reported one or more suspected violations of law to

TCEQ. When asked whether SAWS would have constructively discharged Martin “based solely

on information, observation, or evidence that is not related to the fact that Martin made the report

to TCEQ,” the jury answered, “No.” The jury then awarded Martin $40,970.00 in lost wages

sustained in the past; $39,468.00 in lost wages that in reasonable probability will be sustained in

the future; $22,303.76 in lost employment benefits (other than loss of earning) sustained in the

past; and $7,602.92 in lost employment benefits (other than loss of earnings) that will in

reasonable probability be sustained in the future. The jury was also asked to award compensatory

damages, which it was instructed included “emotional pain and suffering, inconvenience, mental

anguish, loss of enjoyment of life, and other non-economic losses.” The jury awarded

$110,334.68 in compensatory damages sustained in the past and $55,172.34 in compensatory

damages that will in reasonable probability be sustained in the future.

       On appeal, SAWS argues that the evidence is legally and factually insufficient to support

a causal link between Martin’s report to TCEQ and his constructive discharge. SAWS also


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argues that the evidence is legally and factually insufficient to support the jury’s award of

compensatory damages.

                                      STANDARD OF REVIEW

       When reviewing a jury finding for legal sufficiency, we must credit evidence favorable to

the judgment if a reasonable fact-finder could, disregard contrary evidence unless a reasonable

fact-finder could not, and reverse the fact-finder’s determination only if the evidence presented

in the trial court would not enable a reasonable and fair-minded fact-finder to reach the judgment

under review. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We will sustain legal-

sufficiency challenges only if the record reveals (1) that there is no evidence of a vital fact; (2)

that the court is barred by rules of law or evidence from giving weight to the only evidence

offered to prove a vital fact; (3) that the evidence offered to prove a vital fact is no more than a

mere scintilla; or (4) that the evidence conclusively establishes the opposite of a vital fact. Id. at

810. More than a scintilla of evidence exists if the evidence rises to a level that would enable

reasonable and fair-minded people to differ in their conclusions. Ford Motor Co. v. Ridgway,

135 S.W.3d 598, 601 (Tex. 2004).

       When reviewing a jury finding for factual sufficiency, we consider all the evidence and

set aside the judgment only if it is so contrary to the overwhelming weight of the evidence that it

is clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

       Under either standard of review, we are mindful that the jury as finder of fact is the sole

judge of the credibility of the witnesses and the weight to be given their testimony. McGalliard

v. Kuhlmann, 722 S.W.2d 694, 696 (Tex. 1986). The jury may choose to believe one witness and

disbelieve another, and we must not impose our own opinion to the contrary. City of Keller, 168

S.W.3d at 819.



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                                           CAUSATION

       Pursuant to the Texas Whistleblower Act, a state or local governmental entity is liable for

damages if it suspends, terminates, or takes adverse personnel action against a public employee

who in good faith reports to an appropriate law enforcement authority either the entity’s or

another employee’s violation of law. See TEX. GOV’T CODE ANN. §§ 554.001-.010 (West 2012).

To show causation in a whistleblower case, an employee “must demonstrate that after he or she

reported a violation of the law in good faith to an appropriate law enforcement authority, the

employee suffered discriminatory conduct by his or her employer that would not have occurred

when it did if the employee had not reported the illegal conduct.” City of Fort Worth v. Zimlich,

29 S.W.3d 62, 67 (Tex. 2000) (citing Dep’t of Human Servs. v. Hinds, 904 S.W.2d 629, 633

(Tex. 1995)). The Texas Whistleblower Act does not require that the public employee prove that

his report of illegal conduct was the sole reason for the employer’s adverse personnel action.

Hinds, 904 S.W.2d at 634. “When some evidence exists to support a finding that an adverse

employment decision would not have been taken if the employee did not report the violation, a

jury may infer causation.” City of El Paso v. Parsons, 353 S.W.3d 215, 225-26 (Tex. App.—El

Paso 2011, no pet.) (citing Zimlich, 29 S.W.3d at 68).

       A causal link between the adverse employment action and the employee’s report of the

illegal conduct may be established by circumstantial evidence, including: (1) knowledge of the

report of illegal conduct; (2) expression of a negative attitude toward the employee’s report of

the conduct; (3) failure to adhere to established policies regarding employment decisions; (4)

discriminatory treatment in comparison to similarly-situated employees; and (5) evidence that

the stated reason for the adverse employment action was false. Zimlich, 29 S.W.3d at 69.




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       Here, Martin was given good evaluations until it became known that he was the one who

had made the complaint regarding the asbestos pipes. SAWS argues that “most” of the decision-

makers involved in Martin’s termination did not know Martin had made the complaint to TCEQ.

SAWS states that it is apparent from the record that the decision-makers in this case were

McGervey, the H.R. representative; Ruiz, the relevant vice president; Jerald Bailey, vice

president of Human Resources; Mahan, the director of the Northwest Service Center; and

SAWS’s newly appointed president and CEO, Robert Puente. McGervey investigated Martin’s

alleged misconduct with regard to the emails and then conferred with Ruiz. They recommended

to Bailey that a Notice of Proposed Termination be issued against Martin. In a memo to Puente,

Bailey asked for Puente’s approval to issue the Notice of Proposed Termination because Martin

“was involved in the distribution of sexually explicit material and attempting to interrupt the

company-wide e-mail investigation.” After Puente gave his approval, Mahan signed the Notice

of Proposed Termination.

       Although SAWS admits that there is some evidence that Bailey and Ruiz were aware

Martin had filed reports with TCEQ, it emphasizes that McGervey, who was “hands on” in the

investigation, testified that she did not know Martin filed a TCEQ complaint. However, there

was evidence that she interviewed employees at the Northwest Service Center about Martin in

April 2007 at a time SAWS general foremen and others at the Northwest Service Center began to

treat Martin differently and openly discuss his filing a claim with TCEQ. Further, in

investigating the alleged misconduct against Martin, there was evidence at trial that McGervey

worked closely with Ruiz, who testified he was “aware as of July 2007 when I met Kevin, that he

was going to do everything he could to push the [asbestos] issue.” There is evidence that Ruiz

attended at least three meetings between SAWS and TCEQ regarding the asbestos issue. Notes



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from these meetings reflect that the following was discussed: (1) “Other locations will be

coming,” including “O’Connor”; (2) “Info request from Kevin could lead to class action

lawsuit”; (3) Martin “will force” Medio Creek to remediation”; (4) “Kevin still calls 2-3

times/week”; (5) “Kevin does not see this moving to NOE – not referring to enforcement”; (6)

“Letter coming on O’Connor – will follow same path”; and (7) “Kevin claims we [SAWS] are

hiding materials.” Additionally, there was evidence that Bailey, vice president of H.R., with

whom McGervey and Ruiz conferred, had received an e-mail from his safety director that

discussed Martin’s complaints to TCEQ. From this evidence, the jury could reasonably conclude

that people involved in making the decision to constructively discharge Martin knew that he had

made a complaint to TCEQ.

       There was also evidence at trial that SAWS at first fought the notice of violations and

denied that the asbestos pipe had been handled and disposed of improperly. There was also

evidence that the remediation process took an extended period of time. Although TCEQ began

its investigation in January 2007, SAWS did not present a remediation plan that was approved by

TCEQ until May 2010. And, as noted, there was evidence that Ruiz attended three meetings

between TCEQ and SAWS where the discussions included that Martin would “force” the Medio

Creek dump site to remediation; that Martin was calling TCEQ two to three times per week; that

Martin had alleged SAWS was hiding its dumped asbestos materials; and that Martin’s

information requests to TCEQ could lead to class action lawsuits. Thus, there was evidence from

which the jury could have reasonably inferred that SAWS was unhappy with Martin having filed

the TCEQ complaint.

       Additionally, there is evidence that it took SAWS a long time to conduct the investigation

into Martin’s alleged misconduct. McGervey testified that the purpose of placing Martin on



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administrative leave in February 2008 was to conduct an investigation into whether Martin had

improperly shown the pornographic emails to Zuniga on February 15, 2008. There was evidence

that although McGervey completed her investigation by March 4, 2008, Martin’s Proposed

Notice of Termination was not issued until five and a half months later. There was also evidence

presented at trial that five other employees who had been placed on administrative leave because

of the email investigation were issued their Notices of Proposed Termination within a few days

of being placed on administrative leave.

       Additionally, there is evidence from which the jury could have reasonably concluded that

SAWS’s stated reasons for Martin’s constructive discharge were pretextual. The Notice of

Proposed Termination stated that Martin accompanied Garcia in January 2008 to SAWS Human

Resources as Garcia’s representative and was disruptive. However, there is evidence in the

record that Martin merely handed Garcia’s letter to a receptionist and sat with Garcia in the

lobby. Martin never spoke to McGervey. Bailey, McGervey’s boss and vice president of H.R.,

testified that there was nothing inappropriate with Martin accompanying Garcia to the lobby for

moral support or carrying Garcia’s written response to the H.R. receptionist.

       The Notice of Proposed Termination also complained of Martin sharing confidential

information concerning the email investigation. However, there was evidence at trial that Martin

was not part of SAWS’s investigative team; that he was asked by Ruiz to collect hard copies of

inappropriate emails; and that the emails were not related to SAWS business and contained no

confidential information about SAWS. Further, there was evidence that McGervey was

improperly imputing actions and statements by other SAWS employees and former SAWS

employees to Martin based on her interview notes. And, with regard to Martin allegedly

interrupting Ruiz at the “all-hands meeting,” there was testimony that Martin was not disruptive



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or rude and that he did not interrupt Ruiz. Bailey testified that Martin’s question about selective

enforcement would be appropriate at an “all-hands meeting” as long as it was “stated correctly.”

And, there was evidence that Martin did not state his question in a rude or inappropriate manner.

With regard to Martin showing the emails to Zuniga at the work site, Martin testified that Zuniga

asked to see the emails and that Martin only complied with his superior’s request. Further,

Martin testified that he had the emails in his possession before the “all-hands meeting” because

he knew the email investigation was going to be discussed at the meeting and that he later had

them in his possession at the job site because he was waiting for Ruiz to call the meeting with

other SAWS management. Thus, there was evidence from which the jury could have reasonably

concluded that SAWS’s stated reasons for Martin’s constructive discharge were pretextual.

       SAWS also argues that the lapse in time between Martin’s filing of his complaint with

TCEQ and the issuance of the Notice of Proposed Termination makes any inference of causation

unreasonable. Martin filed his first complaint with TCEQ in January 2007. Ruiz learned Martin

was the complainant in July 2007. And Martin filed his second complaint in October 2007.

SAWS emphasizes that Martin’s Notice of Proposed Termination was not issued until August 5,

2008. However, there was evidence presented at trial from which the jury could have reasonably

inferred that the reason Martin’s Notice of Proposed Termination was not issued until August

2008 was because SAWS was trying to place some distance between the termination of Martin’s

employment and Martin’s filing of the TCEQ complaint. As noted, there was evidence from

which the jury could have reasonably concluded that SAWS’s stated reasons for Martin’s

termination were pretextual and that SAWS was unhappy with Martin filing the TCEQ

complaint. Moreover, there was also evidence presented by SAWS at trial that one of the reasons

it took so long to issue Martin’s Notice of Proposed Termination was because Puente had been



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newly appointed as CEO and was busy with learning his new position. Thus, we cannot conclude

that the lapse in time between Martin’s filing of his complaint with TCEQ and the issuance of

the Notice of Proposed Termination makes any inference of causation unreasonable. We hold

that the evidence is legally sufficient to support causation.

       SAWS also argues that the evidence is factually insufficient to support “the finding that,

but for Martin’s reports to TCEQ, SAWS would not have issued the Notice of Proposed

Termination to him when it did.” SAWS argues that the “only evidence even potentially linking

the Notice of Proposed Termination to Martin’s TCEQ reports is the fact that Ruiz and Bailey

were aware that those reports had been made.” As noted above, there is much more evidence in

the record to support the jury’s finding of causation. SAWS also argues that the evidence is

factually insufficient to support the finding that “SAWS would not have issued the Notice of

Proposed Termination to Martin based solely on information, observation, or evidence that was

not related to Martin’s reports to TCEQ.” SAWS argues that the overwhelming weight of the

evidence in this case demonstrates that SAWS would have issued a Notice of Proposed

Termination to Martin for reasons unrelated to his reports to TCEQ. We note that much of the

evidence in this case was disputed. But, it was the jury’s role as fact-finder to judge the

credibility of the witnesses presented at trial and the weight to be given their testimony. See

McGalliard, 722 S.W.2d at 696. In considering all the evidence, we cannot say that the jury’s

finding of causation is so contrary to the overwhelming weight of the evidence that it is clearly

wrong and unjust. Cain, 709 S.W.2d at 176. We therefore hold that the evidence is factually

sufficient to support causation.




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                                    COMPENSATORY DAMAGES

       SAWS argues that the evidence is legally and factually insufficient to support the jury’s

award of past and future compensatory damages. The jury was asked to determine the amount of

damages that would fairly and reasonably compensate Martin for his damages that resulted from

SAWS’s issuance of the Notice of Proposed Termination. The charge defined compensatory

damages as including “emotional pain and suffering, inconvenience, mental anguish, loss of

enjoyment of life, and other non-economic losses.” The jury awarded Martin $110,334.68 for

past compensatory damages and $55,172.34 for future compensatory damages. “Generally, an

award of mental anguish damages must be supported by direct evidence that the nature, duration,

and severity of mental anguish was sufficient to cause, and caused, either a substantial disruption

in the plaintiff’s daily routine or a high degree of mental pain and distress.” Service Corp. Int’l v.

Guerra, 348 S.W.3d 221, 231 (Tex. 2011); See Parkway Co. v. Woodruff, 901 S.W.2d 434, 444

(Tex. 1995). We must examine whether the record contains any evidence of a high degree of

mental pain and distress that is more than mere worry, anxiety, vexation, embarrassment, or

anger. Parkway, 901 S.W.2d at 444; see Lefton v. Griffith, 136 S.W.3d 271, 279 (Tex. App.—

San Antonio 2004, no pet.) (explaining that evidence a plaintiff “was unable to sleep, was

depressed, and suffered from anxiety” does not rise to the level of compensable mental anguish

as defined by Texas law). Here, Karnei and Jones testified that Martin was “worried” about

being terminated because he filed a complaint with TCEQ. During his testimony, Martin was

asked the following with respect to compensatory damages:

       Q:     Now, you were dealing with SAWS for – since January of 2007, and even
       before that in relation to your asbestos concerns. We had some testimony from
       Mr. Karnei and Mr. Jones about your concerns about your position as SAWS.
       What kind of effect did that have on you?

       A:      As far as emotional?

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                                                                                    04-11-00402-CV


       Q:      Well, you tell me.

       A:   Well, it was strenuous. It was depressing, because I was trying to get
       SAWS to do the right thing.

Martin also testified that the stress made him “always bitter,” that it “somewhat” disrupted his

social interaction with his family; that he lost a lot of friends at SAWS because they did not want

to be seen talking to him; and that he “had headaches.” This evidence does not rise to the level of

compensable mental anguish. See Lefton, 136 S.W.3d at 279.

       The only other evidence in support of compensatory damages is Martin’s testimony that

he suffered from chest pains. According to Martin, the chest pains were at first believed to be a

mild heart attack but it was later determine that he had not suffered from a heart attack, but

something “closely related to one.” SAWS argues that there is no evidence establishing any

causal connection between these symptoms and any wrongful conduct by SAWS. SAWS

emphasizes that there was no medical evidence in the record to establish such a causal

connection and that Martin was not qualified to do so. Martin responds that his lay testimony is

sufficient to establish a causal link because non expert evidence can be sufficient to support a

finding of causation where the occurrence and condition are such that the general experience and

common sense of lay persons are sufficient to evaluate the conditions and whether they were

probably caused by the event. In Jelinek v. Casas, 328 S.W.3d 526, 533 (Tex. 2010), the Texas

Supreme Court explained that lay testimony can establish causation “in those cases in which

general experience and common sense will enable a layman to determine, with reasonable

probability, the causal relationship between the event and the condition.” However, it noted that

the “general rule has long been that expert testimony is necessary to establish causation as to

medical conditions outside the common knowledge and experience of jurors.” Id. We disagree

with Martin that a causal relationship between something “closely related” to a heart attack and

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SAWS’s wrongful conduct is within the general experience and common sense of a layman.

Moreover, even if lay testimony could establish such a causal link, here, Martin’s testimony did

not make such a connection:

       Q:      And where was this in the – in the scheme of things, as far as the stress
       level associated with your asbestos activities?

       A:      The dates?

       Q:      Well, if you know the dates, that would be fine.

       A:      Well, around 2008. And that’s when I was first going to the VA, and then
       I believe in 2009, I went to a private doctor, Dr. Donavan.

       Q:      Okay. Did you have any other issues, stress related issues? How did it
       affect your family life?

       A:    Well, always bitter, and me and my wife [weren’t] getting along too good.
       You know, we made it work, but – and my daughter too.

       Q:     Okay. What did the stress cause you as far as your relationship with your
       daughter and your wife?

       A:      Well, we’re a close family. We do everything together. My daughter is in
       the AAU basketball. She’s really gifted. We do a lot of training. We go out of
       state together. And she’s – she’s at 13 been verbally committed to one school, and
       that’s quite an accomplishment. And to have me always on her, it was hard.

We therefore hold that the evidence is legally insufficient to support the jury’s award of

compensatory damages.

                                          CONCLUSION

       We find the evidence legally and factually sufficient to prove causation; however,

because there was no evidence to support an award of compensatory damages, we modify the

trial court’s judgment to delete all references to past or future compensatory damages. As

modified, we affirm the judgment of the trial court.

                                                        Karen Angelini, Justice



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