                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


 KINGSAIRE, INC. d/b/a KINGS AIRE,              §
 INC.,                                                          No. 08-11-00372-CV
                                                §
                             Appellant,                         On Appeal from the
                                                §
 v.                                                             327th District Court
                                                §
 JORGE MELENDEZ,                                              of El Paso County, Texas
                                                §
                             Appellee.                         (Cause No. 2009-4709)

                                          OPINION

       Appellant Kingsaire, Inc. d/b/a Kings Aire, Inc. (hereinafter “Kings Aire”) appeals an

adverse jury verdict and judgment in favor of its former employee, Jorge Melendez (hereinafter

“Appellee” or “Melendez”) in a worker’s compensation retaliation and breach of contract suit. In

three issues, Appellant challenges the legal and factual sufficiency of the jury verdict on

retaliation, the legal and factual sufficiency of the damages award for the wrongful termination,

and the trial court’s failure to issue a jury instruction on the issue of an employer’s compliance

with a cause-neutral absence control policy. For the following reasons, we affirm.

                                  STATEMENT OF FACTS

                                      Factual Background

       Melendez began working as a laborer/welder for Kings Aire, a heating, ventilation, and air

conditioning (“HVAC”) company, in 2004. Later that year, he transferred into Kings Aire’s
electrical contracting services department, starting off as a helper and eventually becoming an

apprentice electrician in 2005. Melendez occasionally performed the duties of a journeyman

electrician on certain projects before being promoted to apprentice lead man in March 2009.

       On July 2, 2009, Melendez sustained injuries during demolition work at a job site when a

light fixture fell onto his wrist, severing tendons and lacerating his median nerve. Melendez was

rushed to the hospital and met by Fred Quintana, safety coordinator for Kings Aire, who assisted

Melendez in filing a claim for worker’s compensation. Dr. Robert Chizen of the Concentra

Medical Clinic served as Melendez’s treating physician for worker’s compensation purposes.

Dr. Chizen referred Melendez to Dr. Robert Bell, a hand and wrist specialist with the El Paso

Orthopedic Surgery Group (“EPOSG”) for surgery on July 20, 2009, and subsequent follow-up

treatment. Following surgery, doctors from EPOSG and Concentra restricted Melendez from all

work until September 3, 2010, when Dr. Chizen released him for work with the restriction that he

not lift objects weighing more than three pounds. On October 20, 2010, Dr. Bell again restricted

Melendez from working until January 20, 2011. On January 21, 2011, Dr. Chizen released

Melendez with the note that he be restricted from grasping, squeezing, and wrist flexion or

extension. However, Dr. Bell also signed a return-to-work form for Melendez on October 1, 2009

with the annotation “wife brought husband to doctor’s appt.”

       Kings Aire’s employee manual outlines several distinct types of leave available to

employees. In addition to vacation, they include an undefined amount of worker’s compensation

leave and up to twelve weeks of unpaid health leave under the Family and Medical Leave Act

(“FMLA”), 29 U.S.C.A. §§ 2601–2654 (West 2009 & Supp. 2013). Generally, employees are

limited to three months of total leave before their employment is automatically terminated,


                                               2
although the company reserves the right to authorize leave in excess of three months in certain

circumstances upon the employee’s written request. The medical leave provision of the manual

provides that “[i]f the employee takes leave on account of a serious medical condition, the

employee will be required to present a medical certification of fitness to work before being

permitted to return. If an employee fails to provide the medical certification within fifteen days

after the conclusion of leave, the employee will be terminated.”1

        Kings Aire permits injured employees to use vacation leave instead of receiving income

benefits from worker’s compensation. In fact, Kings Aire’s chief financial officer testified that

regular vacation pay exceeds worker’s compensation benefits.                     However, Melendez filed a

worker’s compensation claim and never elected to use his vacation time. Thereafter, Villa sent

Melendez a letter on July 21, 2009, about three weeks after Melendez’s injury, informing

Melendez that he had been retroactively placed on FMLA leave instead of worker’s compensation

leave as of July 3, 2009, “in reference to your request.” Melendez denied requesting FMLA leave

at trial, and Villa admitted in his testimony that Kings Aire had elected to place Melendez on

FMLA leave itself. At some point during his leave, Melendez was also demoted from apprentice

lead man to helper. Two days after Villa sent the leave letter, the Kings Aire safety coordinator

called Melendez at home and told him to turn in his Kings Aire uniforms. Return of uniforms is

an event associated with termination under Kings Aire policy. The safety coordinator would only

say that he was relaying the message from Villa and provided no explanation why the uniforms

had to be returned. Villa later testified that Kings Aire had employees on extended leave return

1
  The meaning of this last sentence is disputed by the parties. Kings Aire CFO Villa testified that the fifteen day
certification period applies only where an employee returns prior to the expiration of the twelve-week FMLA leave.
Melendez argues that this provision has the practical effect of establishing a 15-day “grace period” allowing for
employees at the end of their FMLA leave to provide medical certification in order to keep their jobs. We reserve
interpretation of this provision for the Discussion section below.
                                                         3
their uniforms, which were rented from a third party, as standard practice. Melendez complied

with Villa’s instruction.

       Melendez’s twelve weeks of FMLA leave expired on September 24, 2009, and on

September 28, 2009, Kings Aire sent Melendez a letter informing him that his employment had

been terminated effective September 25, 2009. Prior to that point, Melendez had been providing

regular medical documentation to Kings Aire, but stopped providing doctors’ notes after receiving

his termination letter. Villa testified that he was aware of Melendez’s worker’s compensation

claim at the time of termination. Prior to termination, Melendez earned $12.50 an hour during

regular projects for Kings Aire, with supplemental “health and welfare” payments made for

projects worked on Fort Bliss. He also received health insurance, one week paid vacation, and

matching retirement contributions up to three percent of his pay. According to Melendez’s

calculations, he earned an annual salary of approximately $26,000, and accrued $4,652 a year in

benefits. Prior to Melendez’s termination, Kings Aire terminated four other employees upon

expiration of FMLA leave, two of whom had been on leave for worker’s compensation injuries.

Kings Aire also presented evidence that employees who had taken leave due to worker’s

compensation injuries but had returned to work before FMLA leave expired were not terminated.

                                    Procedural Background

       Melendez brought suit for wrongful termination under the Texas Anti-Retaliation Law,

TEX.LAB.CODE. ANN. § 451.001 et seq. (West 2006 & Supp. 2013); breach of contract; liability

under the Sabine Pilot doctrine; attorney’s fees; and exemplary damages. The lower court held a

jury trial from June 14 to June 16, 2011. At trial, the court granted directed verdicts in favor of

Kings Aire on Melendez’s exemplary damages claim and his Sabine Pilot claim but submitted the


                                                4
wrongful termination and breach of contract claims to the jury. On those claims, the jury

rendered verdicts in favor of Melendez and awarded him $6,300 in lost earnings, $91,000 in future

lost earnings, $500 in lost benefits, and $26,754 for future lost benefits. Appellant filed a motion

for judgment notwithstanding the verdict and a motion for new trial that were both denied by

operation of law. Appellant then timely appealed.

                                          DISCUSSION

       Kings Aire brings three issues in this appeal. In Issue One, Kings Aire argues that the trial

evidence was legally and factually insufficient to show that its termination of Melendez was a

retaliatory act stemming from his filing of a worker’s compensation claim and the result of

uniform absence control policy enforcement. In Issue Two, Kings Aire also argues that the trial

evidence was legally and factually insufficient to justify the jury’s damages award for the

wrongful termination.     Finally, in Issue Three, Kings Aire contends that the trial court’s

submission of the Texas Pattern Jury Charge for worker’s compensation retaliation claims without

a special instruction on compliance with a cause-neutral, uniformly enforced absence control

policy constituted reversible error. We address each point in turn.

                     1. Factual and legal sufficiency of the retaliation verdict

       In Issue One, Kings Aire challenges both the factual and legal sufficiency of the jury

verdict for Melendez on his retaliation claim.

       A legal sufficiency challenge posits that as a matter of law, a jury’s verdict cannot be

sustained on the evidence presented for one of four reasons: (1) there is “a complete absence of

evidence of a vital fact;” (2) “the court is barred by rules of law or of evidence from giving weight

to the only evidence offered to prove a vital fact;” (3) there is “no more than a mere scintilla” of


                                                 5
evidence proving a vital fact; or (4) the evidence conclusively establishes the opposite proposition

of a plaintiff’s proffered vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005).

In other words, where a fact finder may draw only one legal conclusion from the evidence

presented, a verdict is legally insufficient when it contravenes that conclusion. Id. at 822.

However, where the existence of facts and their relative weight falls within the “zone of reasonable

disagreement,” the appellate courts are without power to overturn a jury’s verdict for lack of legal

sufficiency.   Id.   We view evidence in the light most favorable to the verdict on a legal

sufficiency challenge, indulging “every reasonable inference” in the verdict’s favor. El Paso

Independent School Dist. v. Pabon, 214 S.W.3d 37, 41 (Tex.App.--El Paso 2006, no pet.).

       By contrast, a factual sufficiency challenge asserts that a neutral review of the record in its

entirety indicates that the jury’s verdict is so contrary to the great weight and preponderance of the

evidence so as to “shock[] the conscience” or be “manifestly unjust.” El Paso Healthcare System,

Ltd. v. Carmona, 160 S.W.3d 267, 274 (Tex.App.--El Paso 2005, pet. granted, vacated pursuant to

settlement). However, “the jury’s determination is usually regarded as conclusive when the

evidence is conflicting,” and “we cannot substitute our conclusions for those of the jury[.]” Id.

       The Texas Anti-Retaliation Law, TEX.LAB.CODE. ANN. § 451.001 et seq., prohibits an

at-will employer from discharging an employee for “fil[ing] a workers’ compensation claim in

good faith[.]” TEX.LAB.CODE ANN. 451.001(1). Courts typically analyze retaliation claims

under a burden-shifting framework. See Echostar Satellite, L.L.C. v. Aguilar, 394 S.W.3d 276,

288 (Tex.App.--El Paso 2012, pet. denied). However, in a factual and legal sufficiency review of

an employment law case tried on the merits, we need only determine whether the evidence is

sufficient “to support the jury’s ultimate finding.” Id. Nevertheless, we briefly set out the


                                                  6
framework to ground our decision conceptually.

       To prevail in a retaliation action, an employee must establish through either direct or

circumstantial evidence that his discharge would not have occurred at the time it did but for his

filing of a worker’s compensation claim. 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.). Retaliation need not be the sole reason motivating factor

behind an employee’s termination to succeed on a retaliation claim, merely a contributing factor.

Cont’l Coffee, 937 S.W.2d at 450. Once the employee has shown a causal link between the

discharge and his worker’s compensation claim, the burden shifts to the employer to provide a

legitimate reason for the termination. Echostar Satellite, 394 S.W.3d at 288. The legitimate

reason is then presumed to be the proximate cause of termination, and the burden again falls on the

employee, who must proffer sufficient evidence of retaliatory intent to establish that retaliation

was the actual proximate cause and that the ostensibly legitimate reason is no more than mere

pretext. Id.

       Kings Aire maintains that the verdict was legally and factually insufficient because it

uniformly enforced its own cause-neutral absence control policy in terminating Melendez, thus

entitling it to a presumption that the proximate cause of Melendez’s discharge was, in fact, the

policy. It further contends that Melendez failed to provide more than a scintilla of evidence

raising fact issues on Kings Aire’s uniform enforcement of the policy or evincing any retaliatory

intent behind Melendez’s termination.

                    A. Termination under a cause-neutral absence control policy

       Where an employee who has filed a worker’s compensation claim is terminated in strict


                                                7
compliance with a uniformly enforced, cause-neutral absence control policy, the employer is

entitled to a presumption that the proximate cause of termination was the policy and not the

worker’s compensation claim. Cont’l Coffee, 937 S.W.2d at 451; Texas Division–Tranter, Inc. v.

Carrozza, 876 S.W.2d 312, 313 (Tex. 1994); see also Denney v. Dillard Texas Operating Ltd.

Partnership, No. 08-01-00442-CV, 2003 WL 21035409, at *3 (Tex.App.--El Paso May 8, 2003,

pet. dism’d)(mem. op., not designated for publication)(referring to the presumption as “an

affirmative defense”). Non-conclusory proof that the absence control policy does not require

discharge or is not uniformly enforced creates a fact issue preventing a court from granting the

presumption to the employer. Cf. Carrozza, 876 S.W.2d at 313-14 (recognizing in a summary

judgment disposition that evidence contradicting uniform enforcement creates an issue of material

fact); Baptist Memorial Healthcare Sys. v. Casanova, 2 S.W.3d 306, 309 (Tex.App.--San Antonio

1999, pet. denied)(“some evidence” that discharge is not required under the policy creates a fact

issue); Acme Boot Co., Inc. v. Montenegro, 862 S.W.2d 806, 809 (Tex.App.--El Paso 1993, no

writ). Where an employee’s termination is presumed to be the result of an attendance policy, the

employee may overcome that presumption and raise a fact issue by providing “some evidence” of

retaliatory intent. Echostar Satellite, 394 S.W.3d at 288; Lozoya v. Air Systems Components,

Inc., 81 S.W.3d 344, 348 (Tex.App.--El Paso 2002, no pet.); see also Baptist Memorial Healthcare

Sys., 2 S.W.3d at 309; Omoro v. Harcourt Brace & Co., No. 05-96-01454-CV, 1999 WL 10388, at

*3 (Tex.App.--Dallas Jan. 13, 1999, no pet.)(not designated for publication)(employee may raise

fact issue in face of attendance policy compliance by producing competent “evidence of a

retaliatory motive”).

       Here, Kings Aire provided evidence of its absence control policy at trial. Four other


                                               8
employees had been terminated under this policy, including two employees who exhausted their

FMLA leave. Kings Aire also provided evidence that worker’s compensation claimants who

returned to work prior to the expiration of leave had not been fired. However, Melendez presents

alternating theories contending that Kings Aire is not entitled to the absence control presumption

because it failed to comply with its own policy. First, Melendez contends that the jury could have

found that Kings Aire actually fired Melendez on July 23, 2009, approximately two weeks after his

injury, when it asked him to return his uniforms. This termination would have occurred before

Melendez exhausted all his available FMLA leave time. Second, even if the jury found that Kings

Aire terminated Melendez on September 28, 2009, the absence policy’s language triggered a

15-day “grace period” after his FMLA leave expired allowing him to submit medical certification

justifying his continued employment with Kings Aire. Under this theory, Melendez argues that

since the policy did not require termination until after the grace period concluded, he was still an

employee-at-will and thus, his dismissal was proximately caused by his worker’s compensation

claim.

         We find Melendez’s first argument specious at best. As Kings Aire points out, in its brief

turning in uniforms may be associated with a termination, but it was also the company’s standard

practice to return the uniforms that Kings Aire rented from a third party when the employee was

expected to be on extended leave. We question whether reasonable jurors would see a request to

return uniforms as proof of a termination decision, especially when viewed in light of the fact that

Melendez testified he had to return his uniforms on a semi-regular basis for cleaning.

         However, we are more amenable to Melendez’s second theory of termination. Melendez

argues that the judgment was factually and legally sufficient because language in Kings Aire’s


                                                 9
leave policy essentially creates a 15-day “grace period” after the expiration of FMLA leave during

which employees must submit documentation that they are fit to work in order to retain their

positions. Since his employment was terminated after exhausting his FMLA leave during the

15-day grace period, Melendez argues that the absence policy cannot have been uniformly applied

as a matter of law. The language in question purportedly creating the grace period is as follows:

       If the employee takes leave on account of a serious medical condition, the
       employee will be required to present a medical certification of fitness to
       work before being permitted to return. If an employee fails to provide the
       medical certification within fifteen days after the conclusion of leave, the
       employee will be terminated.

       Kings Aire insists that the language does not, in fact, create a 15-day grace period. Jose

Villa testified that the policy does not extend FMLA leave beyond twelve weeks, and that another

provision of the policy provides that “[i]n no event can family/medical leave last longer than

twelve weeks.” Kings Aire urges us to read the 15-day medical certification period as applying

only to “an employee returning from a leave before the 12 weeks has expired[.]” In other words,

once an employee returns to work, he must provide Kings Aire with certification of his serious

medical condition within 15 days or face termination.         However, this reading completely

contradicts the first sentence of the paragraph in question, since an “employee will be required to

present a medical certification of fitness to work before being permitted to return.” [Emphasis

added]. Furthermore, the policy cannot be fairly read as requiring a medical certification to return

to work and another one fifteen days later for verification purposes, since when read as a whole,

“the medical certification” referenced in the second sentence appears to refer back to the

antecedent medical certification mentioned in the first sentence.

       The policy language is equally amenable to Melendez’s reading that Kings Aire’s


                                                10
mandatory duty to terminate employment is suspended for fifteen days after the expiration of

FMLA leave pending the employee’s presentment of medical certification to return to work. In

reviewing an absence policy on a factual and legal sufficiency challenge, we need not resort to

formal canons of construction where the “policy is so vague that reasonable people could disagree

about its meaning[.]” Cf. Lozoya, 81 S.W.3d at 349 (assuming policy is vague, plaintiff must still

show evidence of discriminatory intent in an adverse employment action). Even so, we note that

Kings Aire’s reading of the 15-day certification period language is strained and essentially renders

the first sentence of the policy paragraph nugatory. Cf. Meritor Automotive, Inc. v. Ruan Leasing

Co., 44 S.W.3d 86, 90 (Tex. 2001)(noting in statutory construction context that “[w]hen possible,

each sentence, phrase, clause and word [should be] given effect, so that the [text] makes sense as a

cohesive whole”).2 Furthermore, there is no language indicating that Kings Aire reserves the

right to terminate employment during the 15-day medical certification period, only language

unambiguously indicating that it will terminate employment if an employee fails to submit the

appropriate certification after the 15-day period. Likewise, the language is silent on the issue of

whether Appellant needed to undertake affirmative steps prior to expiration of the 15-day

certification period to hold that time period open and prevent his termination.

         The policy language is not clear and unambiguous. Rather, the questions of whether

Appellant’s discharge was required, whether the policy created a 15-day grace period, and whether

Kings Aire complied with the terms of the policy fall within the “zone of reasonable

disagreement,” and thus, the province of the jury. See Echostar Satellite LLC, 394 S.W.3d at 287


2
  We note that the jury’s reading of this language as a 15-day grace period would not render the language limiting
family/medical leave to 12 weeks meaningless. Instead, the jury would have been free to read the grace period not as
an extension of family/medical leave, but rather as a way of suspending the overall termination clock pending medical
certification of fitness to work. This reading would render all parts of the policy meaningful and internally consistent.
                                                          11
(where employee is not fired within the timeframe required by the policy, the jury is free to draw

the inference that the policy was not uniformly applied). Kings Aire argues in the alternative that

the fact that Melendez was terminated prior to 15-day medical certification “grace period” after

FMLA leave expired is irrelevant, since Melendez would not have been medically fit to return to

work at that time anyway. However, termination prior to the 15-day medical certification period

may be viewed as proof that Kings Aire did not “uniformly apply” its absence control policy.

Here, Melendez provided a plausible construction of the policy language and elicited evidence that

he was fired during the 15-day grace period when policy language did not require his termination.

As such, the jury was free to draw the inference that Kings Aire was not acting in accordance with

the terms of its cause-neutral absence control policy and not entitled to the presumption of

legitimacy.

                                         B. Retaliatory intent

       The fact that an employer terminated an employee in violation of the terms of a

cause-neutral absence control policy is not enough to uphold a jury award as legally sufficient

under the Texas Worker’s Compensation Act. The aggrieved employee must also show more

than a scintilla of evidence that his employer’s action was caused by his filing a worker’s

compensation claim. See Cont’l Coffee, 937 S.W.2d at 450. “More than a scintilla of evidence

exists 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)(internal citations and quotation marks omitted).

       Where direct evidence of motive is unavailable, circumstantial factors that the courts may

consider in assessing causal linkage and retaliatory intent include temporal proximity of the


                                                12
termination to the date of the injury or claim, Porterfield v. Galen Hosp. Corp., Inc., 948 S.W.2d

916, 919 (Tex.App.--San Antonio 1997, writ denied); Worsham Steel Co. v. Arias, 831 S.W.2d 81,

84 (Tex.App.--El Paso 1992, no writ)(retaliatory motive where employee fired a few days after

injury to prevent employee from filing worker’s compensation claim); employer incentives to

refrain from reporting injuries, America West Airlines, Inc. v. Tope, 935 S.W.2d 908, 913

(Tex.App.--El Paso 1996, writ dism’d as moot); and the five so-called Continental Coffee factors:

(1) knowledge of the worker’s compensation claim filing by employer decision-makers; (2)

expression of negative attitude toward employee’s injuries; (3) failing to adhere to company

policies; (4) disparate treatment as between similarly situated employees; or (5) other evidence

that the stated reason for discharge was false. Cont’l Coffee Prods. Co. v. Cazarez, 903 S.W.2d

70, 77 (Tex.App.--Houston [14th Dist.] 1995), aff’d in part and rev’d in part on other grounds,

937 S.W.2d 444 (Tex. 1996); Wyler Industrial Works, Inc. v. Garcia, 999 S.W.2d 494, 501

(Tex.App.--El Paso 1999, no pet.). No one factor is determinative, and although Melendez is not

required to produce “evidence on all five of the Continental Coffee factors” to meet his burden, he

must produce “sufficient circumstantial evidence on a majority of these factors.” Armendariz v.

Redcats USA, L.P., 390 S.W.3d 463, 466 (Tex.App.--El Paso 2012, no pet.).

       In support of its position, Kings Aire presented evidence that their safety coordinator met

Melendez at the hospital and assisted him in filling out a worker’s compensation claim. The

termination took place about two months after the claim was filed, cutting against a temporal

proximity argument. See, e.g., Porterfield, 948 S.W.2d at 919 (employee fired on Monday

morning after receiving word on Friday that her injury was compensable). However, Melendez

has offered enough proof on a majority of Continental Coffee factors to uphold the verdict’s legal


                                                13
and factual sufficiency. First, Melendez adduced evidence that Villa admitted to knowing about

the worker’s compensation claim at the time the termination decision was made. Garcia, 999

S.W.2d at 501 (recognizing knowledge of the claim as a Continental Coffee factor). Second, as

stated previously, Melendez raised a fact question as to whether Kings Aire fired him in violation

of its own policy during a purported 15-day window after FMLA leave expired, which meets the

“failing to adhere to company policies” prong of Continental Coffee.            Third, Melendez

established “other evidence that the stated reason for discharge was false” – namely, that Kings

Aire’s leave policy favoring more lucrative vacation time over worker’s compensation leave acted

as an incentive program designed to prevent employees from reporting injuries, Tope, 935 S.W.2d

at 913, and that when Melendez refused to take vacation leave, he was placed on FMLA leave

anyway.

       There is a fact question as to whether Melendez elected to switch from the indefinite

worker’s compensation leave to the time-limited FMLA leave himself – in which case Kings Aire

properly allowed a cause-neutral absence control “clock” to expire before termination – or whether

Kings Aire switched him to time-limited FMLA leave without his consent for the specific purpose

of retaliating from behind a cause-neutral veil for taking worker’s compensation leave instead of

vacation leave when his injury occurred. The jury could also infer that when Melendez persisted

in filing the claim and taking worker’s compensation time, Kings Aire sought to retaliate against

Melendez by demoting him and placing him on FMLA leave when he requested worker’s

compensation leave in order to run out the clock on his employment.

       We believe that: (1) Villa’s knowledge of Melendez’s worker’s compensation claim; (2)

the fact that Kings Aire’s policy encourages employees to take time-limited vacation time over


                                               14
indefinite worker’s compensation time; (3) the fact that Melendez was apparently placed on

FMLA leave in spite of requesting separate worker’s compensation time; (4) the fact that

Melendez was demoted during leave time; and (5) the fact that the leave policy’s language appears

to create a 15-day medical certification grace period after FMLA leave lapses are all sufficient to

give rise to a permissible inference of retaliation.

       Because the circumstantial evidence supporting the jury’s verdict “rises to a level that

would enable reasonable and fair-minded people to differ in their conclusions,” Hernandez, 164

S.W.3d at 388, we lack the authority to overturn the jury’s finding of retaliation for lack of legal

sufficiency. Further, because the jury’s finding of retaliation does not go against the great weight

and preponderance of the evidence contained in the record as a whole, we cannot disturb the

verdict for factual sufficiency. As such, we uphold the jury’s verdict.

       Issue One is overruled.

                            2. Factual and legal sufficiency of damages

       In Issue Two, Kings Aire contends that the trial evidence is legally and factually

insufficient to support the jury’s damages award for the wrongful termination.

       “[A] jury cannot ‘arbitrarily assess an amount neither authorized nor supported by the

evidence presented at trial.’” West Telemarketing Corp. Outbound v. McClure, 225 S.W.3d 658,

667 (Tex.App.--El Paso 2006, pet. granted, judgm’t vacated w.r.m. pursuant to settlement). If

conflicting evidence creates a “range” or spectrum of possible damages awards “supported by

some evidence,” the jury’s decision within that range is “immune to a legal sufficiency attack.”

Parallax Corp., N.V. v. City of El Paso, 910 S.W.2d 86, 92 (Tex.App.--El Paso 1995, writ denied);

cf. First State Bank v. Keilman, 851 S.W.2d 914, 930 (Tex.App.--Austin 1993, writ denied)(where


                                                  15
the parties presented two different amounts of back-due interest calculated using different

methods, jury may not award amount between those two numbers). “[L]oss of earning capacity

that a plaintiff will suffer in the future is always uncertain and is left largely to the jury’s sound

judgment and discretion,” and generally a jury is justified in awarding any amount of money up to

and including earnings projected through retirement at age 65. See Household Credit Services,

Inc. v. Driscol, 989 S.W.2d 72, 90 (Tex.App.--El Paso 1998, pet. denied). “[W]here there is proof

to support a range of damage options, the mere fact that nothing in the record shows how the jury

arrived at a specific amount is not fatal to the verdict.” McClure, 225 S.W.3d at 667.

       Melendez calculated that he earned a salary of $26,000 a year and accrued $4,652 in annual

benefits. He requested $312,000 in lost wages and $56,000 in lost benefits, which amount to

thirteen years of projected work for Kings Aire prior to the accident. Kings Aire requested the

jury to award Melendez nothing. The jury awarded Melendez $91,000 in future lost earnings,

$26,754 in lost future benefits other than earnings, $6,300 in lost current earnings, and $500 in lost

current benefits. Overall, the jury’s award represents about 3.5 years of lost wages and nearly six

years of lost benefits. Although we cannot determine why the jury chose to multiply the lost

future earnings and lost future benefits amounts by different lengths of time, those amounts fell

within the permissible range of options available to the jury. As such, the jury’s award of

damages is legally sufficient. Further, we do not find that the jury’s award goes against the great

weight and preponderance of the evidence, rendering it factually sufficient. We uphold the

damages assessed against Kings Aire.

       Issue Two is overruled.

                                        3. Jury charge error


                                                 16
       In Issue Three, Kings Aire contends that the trial court committed reversible error when it

failed to issue a specific charge on Kings Aire’s compliance with an absence control policy. The

trial court submitted the following charge, modeled after the Texas Pattern Jury Charge, State Bar

of Tex., Texas Pattern Jury Charges – Business-Consumer-Insurance-Employment, PJC 107.5

(2012), to the jury:

       Did Kings Aire discharge Jorge Melendez because he filed a worker’s
       compensation claim in good faith?

               There may be more than one cause for an employment decision.
       An employer does not discharge an employee for filing or causing to be
       instituted a worker’s compensation claim in good faith if the employer
       would have discharged the employee when he did even if the employee had
       not filed or caused to be instituted a worker’s compensation claim in good
       faith.

       Kings Aire proposed, and the trial court rejected, the following supplemental charge:

       If Kings Aire terminated Jorge Melendez pursuant to the uniform enforcement of a
       reasonable leave of absence policy, then Mr. Melendez can not prove that his
       termination would not have occurred when it did but for the filing of his workers
       [sic] compensation claim.

       Kings Aire also requested this question: “Was Mr. Jorge Melendez’s termination required

by the uniform application of a reasonable leave of absence policy?” The trial court also denied

inclusion of this question in the charge.

       This Court reviews jury charge errors in two parts. First, the appellant must establish that

the trial court abused its discretion by failing to grant the charge.      Gutierrez v. People’s

Management of Texas I, Ltd., 277 S.W.3d 72, 77 (Tex.App.--El Paso 2009, pet. denied). Second,

if trial court did abuse its discretion, we review the record as a whole to determine whether the

appellant suffered actual harm. 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

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party as was reasonably calculated [to] and probably did cause rendition of an improper

judgment.” Gutierrez, 277 S.W.3d at 77, citing Braudrick v. Wal–Mart Stores, Inc., 250 S.W.3d

471, 475 (Tex.App.--El Paso 2008, no pet.)(internal quotation marks omitted).

       We have previously rejected the notion that failure to grant a supplemental instruction on

uniform enforcement of absence control policies constitutes an abuse of discretion. See, e.g.,

Housing Authority of City of El Paso v. Guerra, 963. S.W.2d 946, 953-54 (Tex.App.--El Paso

1998, pet. denied). Texas Pattern Jury Charge 107.5 “adequately advised the jury of the factual

issues to be considered[.]” Dallas County v. Holmes, 62 S.W.3d 326, 332-33 (Tex.App.--Dallas

2001, no pet.). “[T]he jury need not and should not be burdened with surplus instructions, even if

they are proper statements of the law.” Dallas County, 62 S.W.3d at 332.

       Thus, we do not find that the trial court abused its discretion by “act[ing] 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). Instead, the trial court complied with prior precedent from this

Court and our sister circuits by not burdening the jury with surplus information. The jury charge

was adequate, and the trial court did not commit error.

       Issue Three is overruled. We affirm the trial court’s judgment.



November 22, 2013
                                              YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rivera, and Rodriguez, JJ.




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