Texas Workers’ Compensation

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Court of Appeals of Texas,

Dallas.

Pamela Marie DEPRITER, Appellant,

v.

TOM THUMB STORES, INC., Appellee.

No. 05–95–00392–CV.

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May 31, 1996.

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Rehearing Overruled July 23, 1996.

Attorneys & Firms

*628 John E. Wall, Jr., Law Offices of John E. Wall, Jr., Dallas, for Appellant.

Joann N. Wilkins, Burford & Ryburn, L.L.P., Dallas, for Appellee.

Before WRIGHT and HANKINSON, JJ.

OPINION

WRIGHT, Justice.

In a single point of error, appellant asserts the trial court erred in not submitting a proffered jury instruction. We overrule appellant’s point of error and affirm the trial court’s judgment.

BACKGROUND

Appellant was employed by Tom Thumb Stores, Inc. (Tom Thumb) for several years. She injured her back while assisting a customer at the checkout counter. As a consequence of her back injury, appellant had to change job assignments.

Appellant was transferred to accounts payable. Things did not go well in accounts payable, and appellant was terminated.

Appellant brought suit against Tom Thumb asserting she was terminated in whole or in part because of her workers’ compensation claim in violation of article 8307c.1 Tom Thumb denied the allegation and claimed that it fired appellant for reasons unrelated to her compensation claim. The jury rendered a verdict in favor of Tom Thumb.

STANDARD OF REVIEW

We review a trial court’s refusal to submit a jury instruction under an abuse of discretion standard. Weitzul Constr., 849 S.W.2d at 365.

Appellant’s appeal centers on the following jury question:

Did Tom Thumb Stores, Inc. discharge Pamela DePriter in violation of the Texas Workers’ Compensation Act?

The Texas Workers’ Compensation Act provides that no person may discharge an employee because the employee has in good faith filed a claim, hired a lawyer to represent her in a claim, instituted or caused to be instituted in good faith, any proceeding under the Texas Workers’ Compensation Act, or has testified or is about to testify in any such proceeding.

The preceding paragraph applies with equal force to employers who do not carry workers’ compensation insurance as it does to those employers who do carry workers’ compensation insurance.

The jury answered the foregoing question “no.” Appellant asserts the trial court erred in not submitting the following tendered instruction:

You are instructed that a Plaintiff has the burden of establishing a link between her discharge from employment with Defendant and her workers’ compensation proceeding. Plaintiff need not prove her discharge from employment was solely because of a workers’ compensation proceeding, but must prove that her proceeding under the Texas Workers’ Compensation Act was at least a factor in her discharge.

At the charge conference, appellant argued she was entitled to the foregoing instruction because “the case law provides that the Plaintiff need not prove the condition of compensation received was the sole cause, but rather was a cause or a factor of the discharge.” The trial court refused to submit the foregoing instruction by written order.2 The trial court did advise appellant that she could “argue that from the wording of the question itself.”

APPLICABLE LAW

The Texas Rules of Civil Procedure require a trial court to “submit such instructions and definitions as shall be proper to enable the jury to render a verdict.” Castro v. United States Natural Resources, Inc., 880 S.W.2d 62, 65 (Tex.App.—San Antonio 1994, writ denied).

A trial court should submit explanatory instructions when in its sole discretion, it determines that the instructions will help the jury to understand the meaning and effect of the applicable law and presumptions. Security Sav. Ass’n, 755 S.W.2d at 933.

Anything else, no matter how interesting or relevant to the case, which does not aid the jury in answering the issue is not required to be submitted. This is because an explanatory instruction serves only to aid and assist the jury in answering the questions submitted by the court. Therefore, explanatory instructions should be submitted when, in the sole discretion of a trial court, they will help the jury to understand the meaning and effect of the applicable law and presumptions.

*630 European Crossroads’, 910 S.W.2d at 54.

Article 8307c provided in relevant part that:

No person may discharge or in any other manner discriminate against any employee because the employee has in good faith filed a claim, hired a lawyer to represent him in a claim, instituted, or caused to be instituted in good faith, any proceeding under the Texas Workmen’s Compensation Act, or has testified or is about to testify in any such proceeding.

Act of Apr. 22, 1971, 62nd Leg., R.S., ch. 115, § 1, 1971 Tex. Gen. Laws 884, 884, repealed by Act of Sept. 1, 1993, 73rd Leg., R.S., ch. 269, § 5, 1993 Tex. Gen. Laws 1273 (current version codified at Continental Coffee, 903 S.W.2d at 77.

The Texas Supreme Court has elaborated on the standard of causation and the meaning of the word “because” as used in article 8307c and similar statutes.

These arguments persuade us that the standard of causation in whistleblower and similar cases should be that the employee’s protected conduct must be such that, without it, the employer’s prohibited conduct would not have occurred when it did. We think this best protects employees from unlawful retaliation without punishing employers for legitimately sanctioning misconduct or harboring bad motives never acted upon.

Hinds, 904 S.W.2d at 633.

APPLICATION OF LAW TO FACTS

The gravamen of appellant’s argument is that “[t]he question which was submitted to the jury as to DePriter’s burden of proof required a finding that Plaintiff was terminated ‘because’ of her workers’ compensation proceeding.” Appellant argues that the word “because” as used in the charge improperly implied that the workers’ compensation proceeding had to be the sole cause for the termination.

The charge submitted by the trial court tracked the language of Angelo Broadcasting, Inc., 836 S.W.2d at 735. The trial court expressly authorized appellant to elaborate on the standard of causation during closing arguments. However, appellant’s counsel admitted in oral argument before this Court that he did not do so for tactical reasons.

The trial court could have submitted further instructions regarding the word “because.” However, it was not required to do so. See TEX.R. CIV. P. 277. The trial court did not abuse its discretion in declining to submit appellant’s proposed instruction. We overrule appellant’s point of error and affirm the trial court’s judgment.

JAMES, J., dissents.

JAMES, Justice, dissenting.

I respectfully dissent. I agree with the majority that Depriter properly preserved error by submitting a substantially correct jury instruction. However, because I conclude that the trial court should have submitted an instruction on causation to the jury, I would reverse the trial court’s judgment.

PRESERVATION OF ERROR

Depriter’s tendered instruction instructed the jury she had the burden of establishing a link between her discharge and her workers’ compensation proceeding. It also stated Depriter need not prove her discharge from employment was solely because of the workers’ compensation proceeding, but that the proceeding was at least a factor in her discharge. At the charge hearing, Depriter presented the requested instruction, “which deals with the burden of the Plaintiff, the instruction with regard to establishing a causal connection between the discharge and the compensation received.”

Tom Thumb argues the proposed instruction was not substantially correct. Specifically, Tom Thumb contends the proposed instruction decreased Depriter’s burden of proof, as it used the language “link” and “factor,” not “contributing cause.”

The one test for determining if a party has preserved error in the jury charge is whether the party made the trial court aware of the complaint, timely and plainly, and obtained a ruling. See Hinds, 904 S.W.2d at 638.

JURY INSTRUCTION

The majority opinion fails to give adequate weight to the Texas Supreme Court’s analysis in Hinds, which dealt with the refusal of an instruction on the standard of causation in Whistleblower Act cases. See article 8307c.

The Whistleblower Act does not expressly provide a causation standard. Hinds, 904 S.W.2d at 636.

The Hinds court next considered whether the trial court properly charged the jury. The jury received only a broad-form question asking whether the Department of Human Services constructively terminated or otherwise discriminated against Hinds in retaliation for his report. Based upon the common law causation standard it established, the Hinds court held the jury should have received an instruction containing the proper causation standard. Hinds, 904 S.W.2d at 638.

The Texas Supreme Court’s analysis in Hinds involving the Whistleblower Act should be applied to the current case involving article 8307c does not provide a causation standard. The jury charge merely asks the jury to determine whether Tom Thumb discharged Depriter in violation of the Texas Workers’ Compensation Act. Here, as the majority notes, the common law has established a causation standard which is interchangeably described as “causal connection” or “causal link.” The logical conclusion is that the jury should have received an instruction containing the proper causation standard, just as in Hinds.

A trial court is required to “submit such instructions and definitions as shall be proper to enable the jury to render a verdict.” City of Austin, 844 S.W.2d at 794.

Finally, for the reasons discussed above, I disagree with the majority’s express disapproval of the analysis of the Sixth Court of Appeals involving this issue. See Hogue, at 568–69.

I conclude the trial court abused its discretion when it refused to give the jury this instruction. I would reverse the trial court’s judgment.

Footnotes

1

Appellant was terminated on March 16, 1992. Thus, her claim is governed by section 8307c of the Texas Workers’ Compensation Act in effect at that time. See Act of Apr. 22, 1971, 62nd Leg., R.S., ch. 115, § 1, 1971 Tex. Gen. Laws 884, 884, repealed by Act of Sept. 1, 1993, 73rd Leg., R.S., ch. 269, § 5, 1993 Tex. Gen. Laws 1273 (current version codified at TEX. LAB.CODE ANN. § 451.001 (Vernon Pamph.1996)).

2

Tom Thumb asserts appellant has failed to preserve error because the proposed instruction was not substantially correct. We disagree. Appellant’s proposed instruction was sufficient to preserve the complained-of error. See State Dep’t of Highways v. Payne, 838 S.W.2d 235, 241 (Tex.1992) (“There should be but one test for determining if a party has preserved error in the jury charge, and that is whether the party made the trial court aware of the complaint, timely and plainly, and obtained a ruling.”). Appellant’s argument at the charge conference further clarified her objection.

3

We respectfully disagree with the contrary analysis of the Sixth Court of Appeals. See Hogue v. Blue Bell Creameries, L.P., 922 S.W.2d 566, 571 (Tex.App.—Texarkana 1996, n.w.h). In Hogue, the Sixth Court of Appeals concluded that an instruction similar to the one submitted in this case was insufficient and the trial court erred in refusing to elaborate further on the burden of proof. The Sixth Court of Appeals concluded the submitted instruction was erroneous because:

[It] gave the jury no clue as to whether Hogue had to show that this was the only reason for his discharge or, as provided by case law, that this was a factor attributing to the company’s basis for discharging him. Without this guidance, a jury could not determine if Hogue’s discharge was in violation of the Texas Workers’ Compensation Act. Causation was a hidden element in the question to the jury, and the jury was invited to speculate whether this had to be the only factor in the discharge.

Hogue, at 571–72.

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At a Glance:

Title:

Depriter v. Tom Thumb Stores, Inc.

Court:

5th COA – Dallas

Citation:

931 S.W.2d 627

Date:

May 31, 1996

Status:

Published Opinion
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