Acme Boot Co., Inc. v. Montenegro

862 S.W.2d 806, 1993 WL 369276
CourtCourt of Appeals of Texas
DecidedSeptember 22, 1993
Docket08-93-00017-CV
StatusPublished
Cited by10 cases

This text of 862 S.W.2d 806 (Acme Boot Co., Inc. v. Montenegro) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Acme Boot Co., Inc. v. Montenegro, 862 S.W.2d 806, 1993 WL 369276 (Tex. Ct. App. 1993).

Opinion

862 S.W.2d 806 (1993)

ACME BOOT COMPANY, INC., Appellant,
v.
Salvador MONTENEGRO, Appellee.

No. 08-93-00017-CV.

Court of Appeals of Texas, El Paso.

September 22, 1993.

*807 Mark R. Flora, Kemp, Smith, Duncan & Hammond, P.C., El Paso, for appellant.

Mark F. Howell, and Ken Slavin, Brower & Slavin, El Paso, for appellee.

Before KOEHLER, BARAJAS and LARSEN, JJ.

OPINION

LARSEN, Justice.

Employer/defendant Acme Boot Company appeals from a judgment for plaintiff/employee Salvador Montenegro following a jury trial. The jury found that Acme discharged Montenegro for exercising his rights under Texas Workers' Compensation Act, a violation of Tex.Rev.Civ.Stat.Ann. art. 8307c (Vernon Pamph.1993); that the discharge was willful and malicious; and awarded plaintiff $40,000 actual and $100,000 exemplary damages. Acme complains that the evidence does not support the jury's verdict, that the amount of exemplary damages was excessive, and that the trial court should not have assessed prejudgment interest on the award for future damages. We affirm.

FACTS

Salvador Montenegro began learning the bootmaking craft when he was thirteen years old in Juarez, Mexico. In 1981, he started work for Acme Boot Company as a heel laster.[1] Acme has two unincorporated divisions *808 in El Paso: Lucchese, the "Rolls-Royce" of bootmakers, which makes an exclusively handmade product of all-natural materials; and Dan Post Boots, which uses some machine work and synthetics. During the relevant period, Acme housed both divisions in the same building. Montenegro's first job with Acme was in the Dan Post division.

Montenegro was laid off from Dan Post in 1985, and he began working for another bootmaker two weeks later. Dan Post had recommended him to the second company, and it called Montenegro to solicit his employment. Four months later in August 1986, Acme recalled Montenegro to work for its other division, Lucchese. During this period, Montenegro would perform heel seat lasting for Dan Post from time to time, as well as Lucchese.

On October 27, 1987, while trying to keep a boot rack from falling over, Montenegro hurt his back. He was taken to the hospital and stayed off work for two weeks. Although his written work evaluations had been good to excellent before the injury, after returning to work his evaluations suddenly became unsatisfactory. His supervisor gave him a warning on April 4, 1988 for not properly inspecting boots; Montenegro refused to sign the warning because, as a heel seat laster, it was not his job to inspect boots and he did not even see their top side while working on them.

In April 1988, Montenegro took a leave of absence for back surgery stemming from his on-the-job injury. Acme's personnel managers knew plaintiff was entering the hospital, and that he would be off work for about six months to recuperate. The doctors released him to return to work as of November 23, 1988. Montenegro came into the plant November 14 and spoke with Hilda Matthews, a personnel administrator, telling her he would be returning shortly. She told him to come back to work as he normally did. When he returned on November 23, however, Montenegro was told there were no vacancies for him. Matthews said she would call him if Acme had openings in either division. Acme had in fact hired a second heel laster for Lucchese just days before, on November 9, 1988.

Acme has a policy of terminating laid-off employees if they are not recalled within six months. Montenegro was terminated on August 4, 1989, eight months after his release by the doctors, with the notation "Economic Termination/Laid off for 8 months." During this time, Acme hired 49 new employees; 23 at Lucchese and 26 at Dan Post. Montenegro, who had worked in the boot industry all his life, was capable of performing a number of these jobs. Nevertheless, Acme never recalled him.

VIOLATION OF ARTICLE 8307c

The jury here found that Acme Boot Company discharged Salvador Montenegro because he in good faith filed a claim, hired a lawyer to represent him, instituted a proceeding under the Texas Workers' Compensation Act, or intended to testify in a compensation proceeding. This, of course, is prohibited by Texas law. Tex.Rev.Civ.Stat. Ann. art. 8307c, § 1. The evidence in an Article 8307c case need not show that discriminatory motive was the only reason for Montenegro's firing; the evidence is enough if it shows his worker's compensation claim contributed to Acme's decision to terminate him. Worsham Steel Co. v. Arias, 831 S.W.2d 81, 84 (Tex.App.—El Paso 1992, no writ). Plaintiff may show the causal connection by circumstantial evidence and by reasonable inference from such evidence. Investment Properties Management v. De Montes, 821 S.W.2d 691, 694 (Tex.App.—El Paso 1991, no writ); Paragon Hotel Corp. v. Ramirez, 783 S.W.2d 654, 658 (Tex.App.—El Paso 1990, writ denied).

FACTUAL SUFFICIENCY OF THE EVIDENCE

In its first point of error, Acme claims the jury's finding that it violated the worker's compensation laws in discharging Mr. Montenegro is against the overwhelming weight of the evidence, a "factual sufficiency" challenge to the verdict. In reviewing a factual sufficiency challenge, this Court considers *809 and weighs all the evidence presented at trial. Lofton v. Texas Brine Corporation, 720 S.W.2d 804, 805 (Tex.1986). We may set aside a finding only if the finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). This Court is not a fact finder, so we may not pass upon the credibility of the witnesses or substitute our judgment for that of the trier of fact, even if the evidence would clearly support a different result. Clancy v. Zale Corporation, 705 S.W.2d 820, 826 (Tex. App.—Dallas 1986, writ ref'd n.r.e.). Reviewing the evidence under this standard, we find that sufficient evidence supports the verdict.

Acme's position is that Montenegro was discharged after six months under a neutral company layoff policy, because during the time between his doctor's release and his automatic discharge, no jobs were available at Lucchese that Montenegro was qualified to perform.[2] Dan Post, however, had a number of openings that Montenegro was qualified for, including two lasting jobs he had done in the past.

Acme argues that Lucchese and Dan Post were run as entirely autonomous divisions within the company and that hirings within Dan Post were therefore irrelevant to Montenegro's recall as a Lucchese employee. Acme claims that Lucchese's employees never did Dan Post work, Acme never transferred workers between the two divisions, and that laid-off employees of one division were never recalled to the other. We find that, although this was indeed Acme's theory of the case,[3] plaintiff presented ample evidence to the contrary and the jury was free to accept plaintiff's evidence as true, rejecting that of Acme.

For example, Mr. Montenegro testified that he would do heel seat lasting for both Dan Post and Lucchese when Dan Post's machine was broken. After his layoff in 1985 from Dan Post, Montenegro was recalled by Lucchese.

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862 S.W.2d 806, 1993 WL 369276, Counsel Stack Legal Research, https://law.counselstack.com/opinion/acme-boot-co-inc-v-montenegro-texapp-1993.