

Opinion issued July 28, 2011

In The
Court of
Appeals
For The
First District
of Texas
————————————
NO. 01-10-00949-CV
———————————
Hertz Equipment Rental Corporation, Appellant
V.
Kyle
Barousse,
Appellee

 

 
On Appeal from the 113th Judicial District
Harris County, Texas

Trial Court Case No. 2008-56501
 

 
O P I N I O N
Kyle
Barousse, an employee of Hertz Equipment Rental Corporation (Hertz), filed a
worker’s compensation claim after he sustained injuries in a collision that occurred
while he was riding as a passenger in a company vehicle.  Hertz fired Barousse the day he returned from
medical leave for those injuries, and Barousse sued Hertz under section
451.001(1) of the Texas Labor Code, contending that it terminated his employment
in retaliation for filing the worker’s compensation claim.  
After a bench trial, the trial
court entered judgment awarding Barousse $665,000 in compensatory damages and
$100,000 in exemplary damages.  Hertz
challenges the legal and factual sufficiency of the evidence supporting the
trial court’s retaliatory discharge finding and its compensatory and exemplary
damages findings.  Hertz also contends
that the trial court abused its discretion in excluding evidence of Barousse’s
settlement of his personal injury lawsuit.
          We
hold that legally and factually sufficient evidence supports the trial court’s
finding that Hertz violated the Texas workers’ compensation anti-retaliation
statute and the compensatory damages award, but the evidence does not support
the punitive damages award.  We further
hold that the trial court did not abuse its discretion in excluding evidence of
Barousse’s personal injury settlement.  We
therefore vacate the award of punitive damages and affirm the remainder of the
judgment.
Background
Barousse, an eighteen-year employee
of Hertz, held the position of region sales director for the central
region.  While out on a sales call on
September 13, 2006, Barousse sustained serious back injuries after a truck ran
into the company-owned vehicle in which he was riding.  
Barousse initially paid his medical
expenses out-of-pocket because he knew that the company did not want worker’s
compensation claims on its records.  After
trying to work for a few weeks, Barousse found that the injuries prevented him
from continuing as before.  On October 2,
2006, he filed a claim for workers’ compensation and took a month’s leave of
absence.
At that time, Joe Newman had been the
region sales manager and Barousse’s immediate supervisor for approximately
three months.  In Barousse’s absence,
Newman, with the assistance of region human resources manager Regina
Richardson, prepared memoranda to Barousse on October 10 and October 31.  The first, entitled “Unsatisfactory Job
Performance and 90-day Action Plan,” itemized tasks that he felt required
immediate improvement and warned Barousse that he would “be reevaluated on your
performance every 30 days for the next 90 days[,]” warning that, “[i]f the
results of your reevaluation do not show significant improvement, your
employment with [Hertz] will be terminated.”  In the second memo, entitled “Unsatisfactory
Performance,” Newman listed Barousse’s failure to meet numerous job
responsibilities and goals, including monthly goals.  
Shortly after Barousse returned
from medical leave, Newman met with him about his annual performance appraisal.  Newman gave Barousse—who had previously
received average reviews from his prior supervisor—the lowest possible rating
of “unsatisfactory,” meaning that his performance was unacceptable.  The following week, Newman gave Barousse a
written warning for unsatisfactory job performance, listing “several serious
performance transgressions.”  Like the
first October memo, this memo warned that Barousse’s “[f]ailure to show
consistent improvement with the issues listed and improve your performance will
result in further disciplinary action, up to and including termination.”  
          By
November 29, Barousse determined that he could not perform his usual job duties
without experiencing intense pain and went back on workers’ compensation
leave.  This time, Barousse remained on
leave for several months.  
          Meanwhile,
Hertz began an effort to restructure its work force.  Mark Alewel, the regional vice president, led
the Houston regional office in devising a plan. 
By February 2007, Hertz management had identified Barousse as a
candidate for layoff.  Alewel also slated
the region sales director position in the Dallas office, held by Kevin Smith, for
elimination.  As soon as the layoff plans
were finalized in March, Alewel informed Smith that his position had been eliminated
and offered Smith another position within the company, which he accepted.  Three other region sales directors remained
in their positions, and two years later, when their positions also were
eliminated, they were offered and accepted other jobs with Hertz.  Alewel and Newman consulted with human
resources about the timing of Barousse’s layoff and decided to wait to
implement the decision when Barousse received a medical release and returned
from leave.  
In late September 2007, Barousse contacted
Hertz human resources and informed Richardson that he was released to return to
work as of October 1, 2007.  Richardson
asked Barousse to come to the office immediately.  With Newman present, Richardson informed
Barousse that the company had eliminated his job and that he was being laid
off.  Barousse received a severance
packet offering him enhanced severance pay in exchange for a release of
claims.  Barousse declined to sign the
release and filed this suit.  
     In
its final judgment, the trial court ordered Hertz to pay Barousse “compensatory
damages in the sum of $665,000.00 and exemplary damages of $100,000,” with
prejudgment interest on the $54,477.25 attributable to past damages.  Relevant to this appeal, the trial court
entered the following findings of fact and conclusions of law in support of its
judgment:
·       
Barousse was discouraged from filing a valid workers’ compensation claim.
 
·       
Mark Alewel, while acting within the course and scope of his employment
as regional vice president, made the decision to terminate Mr. Barousse.
 
·       
The other four region sales directors were employees similarly situated
to Barousse.  Each of these similarly
situated employees were offered alternate employment within Hertz at the time
they were advised that their positions had been eliminated. 
 
·       
Barousse was not offered alternate employment at the time he was advised
his position was eliminated.
 
·       
Hertz discharged Barousse because he filed a worker’s compensation claim
in good faith, in violation of section 451.001 of the Texas Labor Code.
 
·       
Hertz acted with malice and gross negligence, causing harm to Barousse.
          Hertz
filed a request for additional findings of fact and conclusions of law,
contending that the trial court omitted essential findings to show that the
decisionmakers evinced a specific intent to harm Barousse, namely: (1) that Barousse
was physically able to perform the duties of region sales director at the time
of his discharge; (2) that any alternate jobs paying comparable salaries and
benefits were available at the time of Barousse’s discharge; (3) relating to
the nature, duration, and severity of Barousse’s mental anguish; and (4) to
support the punitive damages award.  The
trial court denied Hertz’s request, and this appeal followed.
Discussion
I.       Legal
and factual sufficiency challenges
A.      Standard of review
Hertz challenges the sufficiency of
the evidence supporting the trial court’s retaliatory discharge finding and the
compensatory and punitive damages awards. 
We review the sufficiency of the evidence supporting a trial court’s challenged
findings of fact by applying the same standards that we use in reviewing the
legal or factual sufficiency of the evidence supporting jury findings.  Catalina
v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994).  When the appellate record includes the
reporter’s record, the trial court’s factual findings, whether express or
implied, are not conclusive and may be challenged for legal and factual
sufficiency of the evidence supporting them.  See Middleton v. Kawasaki Steel Corp., 687
S.W.2d 42, 44 (Tex. App.—Houston [14th Dist.] 1985), writ ref’d n.r.e., 699 S.W.2d 199 (Tex. 1985).  
In a bench trial, the trial court
determines the credibility of the witnesses and the weight to be given their
testimony.  Woods v. Woods, 193 S.W.3d 720, 726 (Tex. App.—Beaumont 2006, pet.
denied); see also City of Keller v.
Wilson, 168 S.W.3d 802, 819 (Tex. 2005). 
In resolving factual disputes, the trial court may believe one witness
and disbelieve others, and it may resolve any inconsistencies in a witness’s
testimony.  McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986).  In making credibility determinations, the
fact-finder “cannot ignore undisputed testimony that is clear, positive,
direct, otherwise credible, free from contradictions and inconsistencies, and
could have been readily controverted.”  City of Keller, 168 S.W.3d at 820.  The fact-finder thus is not “free to believe
testimony that is conclusively negated by undisputed facts.” Id. However, if the fact-finder could
reasonably believe the testimony of one witness or disbelieve the testimony of
another witness, the appellate court “cannot impose [its] own opinions to the
contrary.”  Id. at 819.
An appellant may not challenge a
trial court’s conclusions of law for factual sufficiency, but we may review the
legal conclusions drawn from the facts to determine their correctness.  BMC
Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002).  In an appeal from a bench trial, we review a
trial court’s conclusions of law as legal questions, de novo, and will uphold
them on appeal if the judgment can be sustained on any legal theory supported
by the evidence.  Id.; In re Moers, 104
S.W.3d 609, 611 (Tex. App.—Houston [1st Dist.] 2003, no pet.).  If we determine that a conclusion of law is
erroneous, but that the trial court nevertheless rendered the proper judgment,
the error does not require reversal.  Id.
The test for legal sufficiency is
“whether the evidence at trial would enable reasonable and fair-minded people
to reach the verdict under review.”  City of Keller, 168 S.W.3d at 827.  In making this determination, we credit
favorable evidence if a reasonable fact-finder could, and disregard contrary
evidence unless a reasonable fact-finder could not.  Id.  If the evidence falls within the zone of
reasonable disagreement, then we may not substitute our judgment for that of
the fact-finder.  Id. at 822.  The fact-finder
is the sole judge of the credibility of the witnesses and the weight to give
their testimony.  Id. at 819.  In reviewing a
factual sufficiency challenge, we consider and weigh all of the evidence
supporting and contradicting the challenged finding and set aside the finding
only if the evidence is so weak as to make the finding clearly wrong and
manifestly unjust.  Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); see Plas-Tex, Inc. v. U.S.
Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989).
          B.      Retaliatory discharge
Section 451.001 of the Labor Code
provides that an employer may not discharge or in any other manner discriminate
against an employee because the employee has filed a workers’ compensation
claim in good faith.  Tex. Lab. Code Ann. § 451.001(1)
(West 2006).  The employee bears the burden to show
a causal link between the discharge or discrimination and the filing of a
workers’ compensation claim.  See Russo v. Smith Int’l, Inc., 93
S.W.3d 428 (Tex. App.—Houston [14th Dist.] 2002, pet. denied); see Tex.
Lab. Code Ann. § 451.002(c).  A causal connection is established between a
plaintiff’s protected action and a defendant’s retaliation if, but for the
employee’s action, the adverse employment action would not have occurred when
it did.  Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450–51 (Tex. 1996).
 The employee need not prove that
participation in the protected activity was the sole cause for the adverse
employment action.  Id. at 451 n.3. The causal connection may be established by
circumstantial evidence or by the reasonable inferences drawn from the
evidence.  Id. at 451.  Circumstantial
evidence sufficient to establish a causal link between termination and filing a
workers’ compensation claim includes: (1) knowledge of the compensation claim
by those making the decision on termination; (2) expression of a negative
attitude toward the employee’s injured condition; (3) failure to adhere to
established company policies; (4) discriminatory treatment in comparison to
similarly situated employees; and (5) evidence that the stated reason for the
discharge was false.  Id. 
Hertz challenges the sufficiency of all of these forms of circumstantial
evidence but the first.
1.       Negative attitude toward the employee’s
filing of the claim 
Hertz first contends that Barousse
did not offer legally or factually sufficient evidence of a negative attitude
toward his condition.  Specifically,
Hertz claims that the statements Barousse relies on are merely “stray remarks”
that were unrelated to the layoff decision and thus not evidence of retaliatory
intent.  See M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d
22, 25 (Tex. 2000) (holding that several occasions in which co-workers and one
supervisor used racially derogatory term in jokes, all of which occurred five
years or more before reduction in force in which employee was discharged, were
too remote in time and not made by anyone directly connected with decision, and
thus not enough to raise fact question about whether reason for termination was
pretextual).  
According to Hertz, Newman’s
negative evaluations and disciplinary memoranda criticizing Barousse’s job
performance—prepared within days after
Barousse filed his workers’ compensation claim—do not support a finding that Hertz expressed a negative attitude toward
Barousse’s condition because Newman did not make the decision to discharge
Barousse.  To support this contention,
Hertz relies solely on Newman’s own testimony that he did not make the decision
to terminate Barousse’s employment or eliminate his position.  The trial court was not required to credit Newman’s
self-serving denial, particularly in light of Newman’s equivocal testimony
about the nature of his involvement in meetings concerning the layoff.  See
City of Keller, 168 S.W.3d at 819.
Hertz also discounts the effect of Newman’s
own animus in the ultimate decision to terminate Barousse’s position.  But Hertz did not conclusively prove that
Barousse’s position was eliminated due to restructuring and that the
performance evaluations had nothing to do with the layoff decision.  First, despite the warnings that Barousse’s
work performance was poor enough to subject him to termination if not improved,
Hertz insisted that Barousse’s termination had nothing to do with his
performance.  The record also shows that Hertz
did not tell two other discharged employees its real reasons for terminating
their employment.  The trial court had
reason to discredit Hertz’s proffered reason for discharging Barousse and could
reasonably infer that an intended consequence of Newman’s negative evaluation
of and disciplinary action against Barousse was the termination of his
employment with Hertz.  See Staub v. Proctor Hosp., 562 U.S.
___, 131 S. Ct. 1186, 1194 (2011) (holding “that if a supervisor performs an
act motivated by antimilitary animus that is intended by the supervisor to
cause an adverse employment action, and if that act is a proximate cause of the
ultimate employment action, then the employer is liable under USERRA [the Uniformed
Services Employment and Reemployment Rights Act]”).  The record shows that Alewel, who had
commented with apparent displeasure when he learned about Barousse’s worker’s
compensation claim, was aware of the claim when he made the layoff decision.  
                    2.       Adherence
to established company policies
In contending that the evidence
does not support a conclusion that Hertz deviated from its established policies,
Hertz identifies only the lack of evidence that it deviated from its policies
concerning the timing or implementation of layoff decisions.  Hertz does not, however, address its
deviation from policy in connection with its treatment of Barousse immediately
after he filed his workers’ compensation claim and in handling Barousse’s
discharge.  Newman, who had supervised
Barousse for only three months, evaluated Barousse’s performance on an
appraisal form meant to cover a year, and refused Barousse’s request to add a
written comment even though the form contains space for employee comments and
signature.  Also, precisely because
Barousse was on workers’ compensation leave, the decisionmakers sought guidance
from human resources concerning the timing of Barousse’s termination, both when
they made the layoff decision in early 2007 and again immediately before
Barousse was released to return to work. 
This evidence supports a reasonable inference that their approach in
handling Barousse’s employment following the filing of his workers’ compensation
claim deviated from established company policy. 
The performance review and warnings and the layoff decision were made within
a few months of the date Barousse filed his claim.  The fact that Hertz delayed implementation of
that decision until Barousse was released to return to work does not erase the
significance of the decision’s timing, especially given that Hertz points to the
workers’ compensation claim as the reason for its delay.
                   3.       Treatment in comparison to similarly
situated employees
Hertz also contends that the trial
court could not rely on evidence that Hertz retained or found other positions
for other region sales directors in the central region as proof that Hertz
treated Barousse differently from other similarly situated employees.  “Employees are similarly situated if their
circumstances are comparable in all material respects, including similar
standards, supervisors, and conduct.”  Ysleta Indep. Sch. Dist. v. Monarrez,
177 S.W.3d 915, 917 (Tex. 2005).  
Hertz initially points out that none of the other
region sales directors were located in Houston, where the region sales manager also
worked.  This difference alone is not
enough to render their jobs dissimilar, where they all had the same job duties and
reported to the same manager. See id.
at 917 & n.3 (observing that employee’s conduct need not be identical to
that of another to show that they are similarly situated).  The record contains testimony that the jobs
had comparable responsibilities as well as evidence of a bonus plan identifying
uniform goals for region sales directors. 
The other region sales director whose position was eliminated at the
same time as Barousse’s was not terminated, but received an offer for an
alternate position in the company, which he accepted.  The only material difference shown between
Barousse and this other employee is the fact that Barousse had filed a workers’
compensation claim.  
                   4.       Evidence that the stated reason for
discharge was false
Hertz next claims that Barousse failed to present any evidence
that called into question the veracity of its proffered reason for termination—that
restructuring would improve efficiencies because Newman could perform
Barousse’s former duties as well as his own as region sales manager.  But Hertz’s evidence does not conclusively prove
that Barousse was discharged because of restructuring and not because he filed
a workers’ compensation claim.  The
timing of the termination decision is a fact that the trial court, as fact
finder, was free to consider in arriving at its findings.  Rogers
v. City of Fort Worth, 89 S.W.3d 265, 279 (Tex. App.—Fort Worth 2002, no
pet.).  
Further, Barousse was not required
to present evidence to directly contradict Hertz’s proffered reason for the
elimination of his job.  To satisfy the
burden of proof, Barousse need not have shown that restructuring had nothing to do with Hertz’s decision.  See Tex.
Dep’t of Human Servs. v. Hinds, 904 S.W.2d 629, 634 (Tex. 1995) (holding
that, under Whistleblower Act, employee was not required to show that illegal
motive was sole reason for termination).  Here, immediately after Barousse filed his
claim, Hertz prepared paperwork criticizing Barousse’s performance and, for the
first time in his lengthy tenure, warning him that he was subject to
termination if his performance did not approve. 
Within three months, with Barousse still on medical leave, Hertz
identified him for layoff, then, citing the fact that he was out on workers’
compensation, decided that it would not implement its decision until he
returned.  And, unlike other region sales
directors, Barousse’s employment was terminated without the option of
transferring to another position within the company.  
The evidence suffices to support
the trial court’s conclusion that a reduction in force was not the principal
reason for Barousse’s termination and that, but for his filing of the workers’
compensation claim, Hertz would not have terminated his employment when it did.  See id.
at 636. 
          C.      Compensatory
damages award
In Hertz’s challenges to the
sufficiency of the evidence supporting the damages awards, we are mindful that
the fact-finder has the discretion to award damages within the range of
evidence presented at trial, so long as a rational basis exists for its
calculation.  See ExxonMobil Corp. v. Valence Operating Co., 174 S.W.3d 303, 316
(Tex. App.—Houston [1st Dist.] 2005, pet. denied).  We note that the trial court did not segregate
past lost wages and benefits from future lost wages and benefits in its
findings of fact and conclusions of law, but the judgment awards prejudgment
interest on $54,477.25 in “past damages” of the $665,000.00 total compensatory
damages award.  The trial court’s findings
of fact state that Barousse’s lost earnings were “at least $590,000,” and his
lost benefits were “at least $120,000,” totaling at least $710,000.  In its conclusions of law, however, the trial
court set a lower amount, determining that Barousse “lost earnings and employee
benefits as a result of the retaliatory discharge in the amount of $665,000.00,”
the same figure used in the judgment for the award of compensatory
damages.  
          1.       Mental
anguish
With respect to mental anguish, the
trial court made a finding that Hertz’s termination of Barousse’s employment
“caused painful emotions, wounded pride, shame, despair and public humiliation
to such an extent that it has disrupted Mr. Barousse’s daily routine.”  Yet, the trial court made no finding of fact
or conclusion of law identifying the amount necessary to compensate Barousse
for the mental anguish he suffered.  
To the extent that the judgment can
be read to contain findings of fact inconsistent with those set forth in the
findings of fact and conclusions of law filed after the judgment, “the latter
findings will control for appellate purposes.” 
Tex. R. Civ. P. 299a.  Accordingly, in the absence of a damages
award addressing it, the mental anguish finding is immaterial, and we construe
the judgment as awarding damages only for the $665,000.00 in earnings and
employee benefits that Barousse lost as a result of the retaliatory
discharge.  
2.       Lost wages and benefits
Pointing to the elimination of all
the region sales director positions by 2009, as well as evidence of other
cost-cutting measures, Hertz claims that the evidence does not support the
trial court’s finding that, absent Barousse’s discharge, he would have
continued to receive the same pay and benefits from Hertz for the next twenty
years.  Lost wages and benefits refer to
the actual loss of income caused by the wrongful act from the time of injury to
the time of trial. See Strauss v. Cont’l
Airlines, Inc., 67 S.W.3d 428, 435 (Tex. App.—Houston [14th Dist.] 2002, no
pet.).  The correct measure of damages
for lost wages is the amount of money the employee would have earned had he not
been terminated, less the sum he will earn after termination. See Goodman v. Page, 984 S.W.2d 299, 305
(Tex. App.—Fort Worth 1998, pet. denied). 
In determining future lost wages, a plaintiff is not required to prove
an exact amount, only facts from which the fact-finder can determine the proper
amount.  Metal Indus. of Cal., Inc. v. Farley, 33 SW 3d 83, 88 (Tex. App.—Texarkana
2000, no pet.) (citing Goodman, 984
S.W.2d at 305).  
Hertz does not account for the fact
that the other region sales directors in his region were not laid off but
received offers of other positions within the company when their jobs were
eliminated.  The fact that all accepted
the offers supports an inference that the compensation for the alternate positions
remained more or less the same as the amount they earned as region sales
directors.  Compare Farley, at 33
S.W.3d at 89 (holding that plaintiff’s testimony that she planned to continue
at plant, together with testimony that almost all of company’s employees
maintained employment after premises were leased to another manufacturer,
supported damages award) with Canutillo Indep. Sch. Dist. v. Olivares,
917 S.W.3d 494, 500 (Tex. App.—El Paso 1996, no writ) (holding that evidence of
plaintiff’s last wage rate with defendant and plaintiff’s assertion that he
intended to work until age 65 could not support jury award of $100,000 in future
lost wages where plaintiff’s theory negated possibility of future wages by
assuming that he would be unable to work in future).  Barousse was a longtime nineteen-year employee
of Hertz, a well-established company with an international presence.  According to Barousse’s testimony, before he
made his workers’ compensation claim, he was a loyal employee with no thoughts
of leaving the company.  Barousse presented
evidence of the wages and benefits he earned at Hertz in 2006, his wages and
benefits at Sunstates in 2008 and 2009, and the applicable federal full
retirement age of 67.  Based on this
evidence, the trial court could reasonably infer that Barousse would have
remained at Hertz for his entire working life. 

Hertz also complains that the
evidence does not support an award for lost wages and benefits for
approximately a year following his discharge because the undisputed evidence
shows that Barousse was on medical leave and physically incapable of performing
any work during that time.  The trial
court, however, did not award the maximum amount permitted under its findings
or the evidence.  In awarding prejudgment
interest, the judgment finds $54,477.25 in past damages, but the period between the date Barousse’s
claim accrued and the date of the judgment is more than nineteen months longer
than the time Barousse was on medical leave. 
The amount of the award is within the range of the evidence of and comports
with the trial court’s findings concerning Barousse’s wages and benefits in his
last year at Hertz and the reduced wages and benefits he earned with Sunstates for
those nineteen months.  We therefore hold
that legally and factually sufficient evidence supports the past damages award.


 
          3.       Mitigation
          Hertz
contends that the trial court implicitly rejected Hertz’s failure-to-mitigate
defense, and its decision to do so is against the great weight and
preponderance of the evidence.  According
to Hertz, Barousse should not recover any economic damages because he abandoned
his job search for comparable employment after accepting Sunstates’ offer of
employment in a nonsupervisory position. 

A discharged employee must use
reasonable diligence to mitigate damages by seeking other employment. See Gulf Consol. Int’l, Inc. v. Murphy,
658 S.W.2d 565, 565–66 (Tex. 1983); Gorges
Foodserv., Inc. v. Huerta, 964 S.W.2d 656, 669 (Tex.App.—Corpus Christi
1997, no pet.); Am. West Airlines, Inc.
v. Tope, 935 S.W.2d 908, 915 (Tex. App.—El Paso 1996, writ dism’d as moot).
 Mitigation of damages is ordinarily a
question of fact.  See Hygeia Dairy Co. v. Gonzalez, 994 S.W.2d 220, 224 (Tex. App.—San
Antonio 1999, no pet.).  As the proponent
of the failure-to-mitigate defense, Hertz bore the burden to prove that
Barousse’s efforts to obtain comparable employment were wanting.  See
Tope, 935 S.W.2d at 915.  
The evidence shows that Barousse
began working for Sunstates within a week after he received his medical release
to return to work.  Although not
supervisory, the position Barousse accepted was a sales position in the same
field of his experience.  His income with
Sunstates is less than he earned at Hertz, but it does not present the kind of
stark contrast with his former earnings that would require a finding that he
failed to mitigate his damages.  Compare Alamo Cmty. Coll. Dist. v. Miller,
274 S.W.3d 779, 791 (Tex. App.—San Antonio 2008, no pet.) (upholding trial
court’s denial of lost wages based on failure to mitigate where discharged
employee admitted that he made no attempt to secure another full-time teaching
position at public or private secondary school or institution of higher
education; his only jobs were construction work and part-time teaching work) and Texas
Animal Health Comm’n v. Garza, 27 S.W.3d 54, 61–63 (Tex. App.—San Antonio
2000, pet. denied) (reversing jnov and reinstating jury finding that plaintiff
failed to mitigate where evidence showed that plaintiff, who had been state
brucellosis inspector, held only one unpaid job on parents’ ranch in seven
years between the date of termination and date of trial and vaguely answered
that he had looked “several places” for job) with Tope, 935 S.W.2d at 915 (holding that plaintiff’s rejection of
former employer’s unconditional offer of employment as baggage service agent
was not conclusive proof that plaintiff failed to mitigate where evidence
showed that plaintiff previously accepted pay cut to avoid customer contact,
and baggage service was physically and mentally demanding; mitigation shown by
evidence that plaintiff attended year of school following discharge, ran his
own business, and applied for airline job as soon as he received full release).  Hertz did not present any evidence of other
positions in the job market that have been available since October 2008 for
which Barousse qualified and would have received a higher salary.  Legally and factually sufficient evidence supports
an implicit finding that Barousse made reasonable efforts to seek and maintain
substantially similar employment by promptly returning to work after his
medical release, and by continuing his employment with Sunstates.
          D.      Punitive damages award
          Hertz
next challenges the legal and factual sufficiency of the evidence of the trial
court’s finding of malice underlying its $100,000 punitive damages award.  In order to recover exemplary damages under
section 451.002 of the Labor Code, a plaintiff must prove, by clear and
convincing evidence, that her employer acted willfully and with malice. See Sw.
Bell Tel. Co. v. Garza, 164 S.W.3d 607, 627 (Tex. 2004); Cont’l Coffee Prods. Co. v. Cazarez, 937
S.W.2d 444, 452 (Tex. 1996).  
          We
follow a more stringent standard to review the legal and factual sufficiency of
the evidence when the fact-finder applies the clear and convincing standard of
proof.  See Sw. Bell Tel. Co., 164 S.W.3d at 627.  “[I]n reviewing the legal sufficiency of
evidence to support a finding that must be proved by clear and convincing evidence,
an appellate court must ‛look at all the evidence in the light most
favorable to the finding to determine whether a reasonable trier of fact could
have formed a firm belief or conviction that its finding was true.’”  Romero
v. KPH Consol., Inc., 166 SW 3d 212, 220 (Tex. 2005) (citing Sw. Bell Tel. Co., 164 S.W.3d at 627).
For purposes of Chapter 451 of the
Labor Code, “[a]ctual malice is characterized by ill-will, spite, evil motive,
or purposing the injuring of another.”  Cont’l Coffee, 937 S.W.2d at 452; see Sw. Bell Tel. Co., 164 S.W.3d at 628;
see also Glass v. Amber, Inc., No.
01-00-00589-CV, 2002 WL 31430097, at *8 (Tex. App.—Houston [1st Dist.] Oct. 31,
2002, pet. denied) (mem. op., not designated for publication) (observing that
“[f]iring an employee for filing a workers’ compensation claim in good faith is
always an unseemly act[,]” but actual malice requires showing that employer had
conscious desire to harm employee).  An
employer’s violation of section 451.001, standing alone, does not support an
award of exemplary or punitive damages.  See Sw. Bell Tel. Co., 164 S.W.3d at
627, 629.  Only the most egregious
violations of the statute will be subject to punitive awards.  See id.
Viewed in a light most favorable to
the trial court’s finding, the evidence shows that, after Barousse filed his
workers’ compensation claim, his Hertz supervisors and managers expressed
displeasure about his claim, prepared highly critical evaluations of his job
performance and performance-related warnings threatening termination during his
medical leave, concealed their decision to discharge from him for several
months, and prodded him to obtain a release to return to work, only to
discharge him when he did.  This evidence
supports the finding that Barousse was terminated in unlawful retaliation for
filing a workers’ compensation claim.  It
does not, however, establish a firm belief or conviction that Hertz acted with
malice toward Barousse beyond the level necessary to prove liability under
section 451.001 in the first instance.  Compare Cont’l Coffee, 937 S.W.2d at 452
(concluding that evidence which tended to establish violation of
anti-retaliation statute, including evidence of employer’s doubts of employee’s
injury, was not type of egregious violation for which punitive damages were
appropriate) and Wal-Mart Stores, Inc. v. Holland, 956 S.W.2d 590, 596 (Tex.
App.—Tyler 1997, pet. granted) (holding that substantially more evidence than
evidence regarding manager’s knowledge and anger over employee’s injury,
threats of termination, and employer’s policy of discouraging workers’
compensation claims is required for finding of malice), rev’d on other grounds, 1 S.W.3d
91 (Tex. 1999) (per curiam) with Whole Foods Mkt. Sw. L.P. v. Tijerina,
979 S.W.2d 768, 780 (Tex. App.—Houston [14th Dist.] 1998, pet. denied) (holding
that evidence that employer badgered employee, including not letting her leave
room until she signed false confession to misconduct and then refusing to
listen to her explanation for confession, along with evidence that testimony
that money was factor in employer’s decision to terminate employee, was
sufficient to establish malice) and
Lubbock Cty. v. Strube, 953 S.W.2d 847, 858–60 (Tex. App.—Austin 1997, pet.
denied) (evidence that supervisors ignored employee’s injuries, gave her work
assignments which subjected her to harassment, and threatened to fire her were
sufficient to support finding of malice).  We therefore hold that the trial court erred
in awarding punitive damages. 
II.      Exclusion
of personal injury settlement evidence
          Hertz
brings a single evidentiary complaint that the trial court abused its
discretion in excluding evidence of the amount that Barousse received in the
settlement of his personal injury suit against the third party that caused the
September 2007 car accident.  Specifically,
Hertz contends that the exclusion of that evidence violated the one-satisfaction
rule and probably led to a double recovery for Barousse. 
The one-satisfaction rule applies
when more than multiple defendants commit the same act, or when multiple
defendants commit “technically different acts” that result in the same, single
injury.  AMX Enters., Inc. v. Bank One, N.A., 196 S.W.3d 202, 206 (Tex.
App.—Houston [1st Dist.] 2006, pet. denied) (citing Crown Life Ins. Co. v.
Casteel, 22 S.W.3d
378, 390 (Tex. 2000)).  Under the rule, a plaintiff who has suffered
only one injury, even if based on overlapping and varied theories of liability,
may only recover once, particularly if the evidence supporting each cause of
action is the same.  Buccaneer Homes of Ala., Inc. v. Pelis, 43 S.W.3d 586, 590 (Tex. App.—Houston
[1st Dist.] 2001, no pet.).  
          The
record does not support Hertz’s contention that the one-satisfaction rule
applies here.  Each suit sought damages
for a different injury.  Barousse’s
personal injury suit against the third-party driver arose out of the injuries
he received as a result of the September 2006 accident.  His workers’ compensation retaliation suit,
in contrast, arose out of the adverse employment action Hertz took after Barousse
filed his worker’s compensation claim, specifically, the termination of his
employment in September 2007.  
Hertz failed to tender any evidence
showing that Barousse received any funds in the settlement of his suit against
the driver that would overlap with any damages he sought in his suit against
Hertz.  Based on this record, we hold
that the trial court did not abuse its discretion in excluding evidence of
funds that Barousse received in the settlement of his personal injury suit
against the driver who caused the 2006 accident.  
Conclusion
          We
hold that legally and factually sufficient evidence supports the trial court’s
finding that Hertz violated the Texas workers’ compensation anti-retaliation
statute in terminating Barousse’s employment. 
The evidence is also legally and factually sufficient to support the
award of compensatory damages, but it does not support the punitive damages
award.  We further hold that the trial
court did not abuse its discretion in excluding evidence of Barousse’s personal
injury settlement.  We therefore vacate
the award of punitive damages.  We affirm
the judgment in all other respects.
 
                                                                   Jane
Bland
                                                                   Justice

 
Panel
consists of Justices Jennings, Bland, and Massengale.

