Affirmed and Memorandum Opinion filed June 3 , 2021

.

In The 

## Fourteenth Court of Appeals

NO. 14

- 19

- 00816

- CV

ALLEYTON RESOURCE COMPANY, A/K/A SUMMIT MATERIALS, LLC A/K/A ALLIED CONCRETE MATERIAL , Appellant
V.
JOSEPH BALL , Appellee

On Appeal from the 2 6 8th District Court Fort Bend County, Texas Trial Court Cause No. 17

- DCV

- 241655

MEMORANDUM OPINION After appellee Joseph Ball ’ s employ ment with a ppellant A lleyton Res ource Company, A/K

/A Summit Materials, LLC , A/K/A Allied Concrete Material ( “ Alleyton ” ) was terminated, Ball sued Alleyton, claiming that Alleyton terminated his employ ment in retaliation for filing a worker s ’ compensation clai m. A jury found in Ball ’ s favor and Alleyton appeals from a final judgment signed f ol lowi ng the jury tria l. Find ing no error, we affirm

.2 B A CKGROUN D Alleyton operates a c oncrete business. Appellee Joseph Ball started working for Alleyton in 2008 as a concrete mixer

- truck driver

. According to Henry Perry,
B all ’ s supe rvis or, Ball was a hard worker and a good employee f or Alleyton.
It is un disputed that Ball was injured while working on S eptember 1, 2015. Ball reported his injury to Alleyton and he filed a workers ’ c ompen sa tion cl aim

. Ball a lso hired a n attorney to handle his workers ’ compensation claim. Ball received medical trea tmen t and then workers ’ compensation benefits starting in December 2 015. Ball was then released to return to li ght

- duty work

. Acc ording to B all, he did tickets docu menti ng the deli very of loads of concrete by other drivers

. Ball was release d to re tu rn to full duty w it h no res trictions on January 15, 2016. Although in pain from his work

- related injur y , Ball worked c o nsis tently after his release back to full du ty . Acco rding to Ball, he told his employer that he was hurting as a result of his on
- the

- job injury , b ut he was sho wing up at work and doing his best , because he needed to pr ovide for his famil y

. Ba l l wa s always clear that he was worki ng throu gh the pain , but he could do his job. In January or February of 2016, Stephen Gardner, Alle yton’s S afety
D irector, told Erin Anderson, Alleyton’s D irect or of Human Resourc es , th at Ball “was talking a

bout being in severe pain and having problem s doing his job without assistance; and he asked me what opti ons we might have to be able to help him

ou t.” Anderson testified that, as a result o f thi s conversat ion, she and G ardner
went to a job s ite to talk to Ball

. Anderson t estified that she offered Ball a n unpaid leave of absence or short

- term disability as options. Ball responded that he was not in terested in either option, that he wan ted to keep wo rking because he need e d th e money. In the recorded conve rsation found in Plaintif f’s Exhibit 2, Ball states he asked if Alleyton had any other potential jobs for him, Gardner and Anderson said3

that they would get back to h im , but th ey never d id.

From the date Ball w as r eleased to return to work with out any re s trictions until the dat e he was terminated, Ball did not receive any write

- ups, incident reports, or disciplinary actions. Perr y admitted t hat Al leyton ’ s rules requi red him to document a n y pe rformance issues he observed Ball having , and to then report those issues to the huma n res ources department.
Lisa Thomas worked as Alle yton ’ s Safety Ad ministrator . T homas reported
to Gardner

. Thomas testi fied that she w a s fa miliar with Alleyton’s “safety guideline s, standards, and principles.” Thomas was also familiar with the industry ’ s standards for job site sa fety programs, in clud ing safety

- related discipline , and how an em ployer should treat employees seeki n g wo rkers’ compensation benefits. Thomas identified the safety rules that Alleyton ’ s paren t
company , Summit Materials, expected Alleyton to follo w

. Acc o rdin g to Thomas,
to ensure effecti ve compliance with safety ru les by empl o yees , All e yton ’ s disc ipline pro gram should be : (1) com municat ed, (2) progressi ve, (3) fairly applied, (4) consistently enforced, a nd (5) documented. Thomas agreed that it was important fo r bo th Alleyto n ’ s employees and its supe rvisors to fol low these rules. Thomas testified that the rules she identified a pplied whe ther there was a safety issue , a job perfor mance iss ue , or a di sciplinary issue

. According to Thomas, an employer shou ld tr eat employees wh o fi l e workers ’ compensation claims fairly,

s hould not discrim inate against t hem , and should never retaliate against the m for seeking workers ’ compensation benefits.

T homas also testified that her job required h er to coordina te treatment and
retu r n
- to

- work plans for injured workers. In addition she had to maintain comple te, acc urate, and timel y w orkers ’ compen sation files for each injured employee. Thomas also made re gular reports to Alley ton ’ s sen ior m anagement4

regarding w o rker s ’ c ompensation claims. Thomas served as Alleyton ’ s point of contact with Alleyton ’ s w orkers ’ comp en sation insurance company. Thomas is

re quired to revi ew and maintain any workers ’ compensation fi les so she kno ws what is going on w i th t hat employee ’ s claim. She is a lso resp o n sible for making certain the files are accurate

. Thomas works with the adjust ors at Alleyton ’ s i nsu rance company and she listens to them and respon ds when t hey commu nicat e with her. Thom as then reports that information to Gard ner and others at Alleyton. One of those files was a claims diary for Ball ’ s wo rker ’ s com pe nsation c laim. Gardner agreed that Alleyton ’ s safety rules applied any t ime there was a safet y - rel ated issue, including terminations. Gard ner also agreed that part of the purpose of the rules is to “confirm that an e mployer like Alle yton is bei ng honest about the reason for termination and not attempti ng to conceal some other action lik e ret aliation[.]”
Ball ’ s claims dia ry shows that his workers ’ compen sation attorne y notified Alleyton ’ s insurance adjustor o n Septe mber 20, 2016 that he disagree d with , and would dis pute , the workers ’ c ompensati on doctor ’ s de cision that Ball had r each ed Maximum Medical Improvement an d was f it to return to wo rk without restrictions on September 18, 201 6. Th at same day, the diary shows t hat Thomas c al led the adjustor requesting an u pd a te on Ball ’ s claim. An October 7, 2016 entry in Ball ’ s claims diary reflec t s t hat Ball had rec eived new medical trea tment for his on

- the

job inju ry , and that the new doctor ha d det ermined that Ball had not reached Maximum Me dical Improvem ent and would not do s o un til on or about December 6 , 2016.
On O ctober 11, 2016 , Ba ll ’ s worker ’ s compensation attorney requested a
B enefit R eview C onference ( “ BRC ” ) with the T exas Department of Insu rance, Divis ion of Workers ’ Compens a t i on

. A BRC is the start of formal p roceedi ngs in5

administrative courts addressing workers ’ compensation claims. Ball ’ s attorney notified the agency that his effor ts to resolve Ball ’ s claim with Alleyton ’ s workers ’

co mpensation insu rance company had fa i le d because of a dispute over Ba ll ’ s

r ecovery from his on

- the

- job injury. The adjustor and Thomas then had extens i ve discussions about Ball ’ s r eques t for a BRC on October 14, 2016

. Acco rding to the

a d justo r, Alleyton was ha v ing performance issu es with Ball and was considering termina tin g him

. All eyton w as a s king the adjustor to refer Ball ’ s file to Alleyton ’ s local attorney

. Thomas test i fied that she did not recall any of these di scussions

. On Octob er 12, 2016, Perry , Ball ’ s supervisor, filmed Ball workin g at a jo b site

. One of the video s shows Ball wal king the thre e parts of the mixer truck ’s chu te along the groun d around to the back of th e truck

. The video showed that
B all was mo ving slowly, but Anderson , th e human res ources director , te stified Ball was not terminated because h e did his job slowly. 1 Perry testified that he be l ieved Ball ’ s method of moving the chutes was unsafe because All eyton teach es the drivers to c arry each chute piece on th eir shoulder. Per ry explained that Ball ’ s method was unsafe bec ause if “ he w ould mess a r ound, trip and fall, he would fa ll on th e chute. ” The second video shows Ball rinsing th e concrete off the truck after he had unloaded the concre te

. According to Perry, Ball did not perform this task in the p rop er manner. Perry did not testify that Perry ’ s me thod fo r rins ing down the truck was un safe . Perry instead testified th at Ball ’ s method was too slow because it takes “ away f

rom production. ” In Perry ’ s view, Ball ’ s pace re du ced the number of times he could return to t he plant and reload his truck

. P erry testified that , out of conc e rn t hat Ball could get injured on a jobsite,

1 Ball did not d eny th at he was moving slowly in the video. B a ll explained that he was moving slowly because t he video was made at about 5:00 p.m. , he had started wor king that day
a t a bout three i n the mo r ning , and he was tired

. Ball w ent on to explain tha t h is nor mal work day st arted at 3:00 a.m. and it would end when they finished the work, which coul d be an yw here between 4:00 p .m. and 9:00 p.m.6

he offered h im another job working upstairs as “ a backup bat c h ma n. ” According
to P erry, Ball was not interested in the job b ec ause he could not walk up t he sta irs. Ball testif ied that Perry did not offer him a jo b , but i nstead hinted at one. Ball al so denied rejecting the job because he could n ot walk up the stairs. Ins t ead, according
to B all, he told Perry he w ould have to con sider the wh o le s ituati on , b ut he did not have th e t ime at that point for furth er d iscussion because he was leaving the p lant with another load. At that poi nt, P erry took his video s to Brad Bowman, the Vice President of Ready

- Mix for Al leyton , and Perry ’ s boss

. Perry explained that he did so out of

co ncern tha t Ball was going to hurt himself. According to Perry, Bowman was also con cer

ned that Ball was going to hur t himself. Bowman then dis cussed th e possi bi lity of t erm inating Ball. Per r y denied that he had any involvement in any

me etings , d iscussion s , or decisions relate d to Ball ’ s employment. Bowman to ok Perry ’ s video s to Anderson in h uman resources. Anderson testif ied that she in turn
too k the vi deo s t o Gar dner. Gardner , however, testified that Perry showed him the video s

. Ball reported slipping and falling while on the jo b t wo days after Perry videoed his work. Gard ner inve stigated th e reported fall

. G ardner aske d Ball about seeing a doctor, questioned Ball about the doctors he had been seeing , and the med ications Ball w as taking. Ba ll told G ar dner that he fell, but suffered no injury. Ball then told Gardner that h e was alw ays hu rting on the job as a result of his previous on
- the

-

job injury. When Gardner asked if Ball wanted to see a d octor about the “ re
- aggravation ” of his inj ury , Ball once again denied that he had been injured or aggravate d hi s previous injury whe n he fell that da y.
The Alleyton witnesses durin g the trial each t old different versions of h ow the decisi on was reached to terminate Ball. A nderson te stified that once Perry ’ s7

vide os made their way to the Alleyton of fice, there were vari ous discussion s

c on cerning what to do about Ball. Acco rding to Anderson , there was no one meeting in which everyo ne involved in the termination decision par tic ipated. Anderson test ified that Perry talked to Bowman , B owman tal ked to her , and she talked to G ardner. While Anderson testified the same decision res ulted from each of those conversations, Bowman testified that he, Anderson, and Gar dne r “got back together and talke d about it a little bit; and that’s when we a greed that i t would be bes t t o part ways with Mr. Ball.” According to Bowman, the dec ision to terminat e Ball was a collec tive decision motivated out of concern “ abo ut the safety of Mr. Ball going f

orward. ” Gardner on the o ther ha nd claimed tha t he ultimatel y p ar ticipate d in the termination meeting “[j]ust to be there” and to serve as a witness. Gardne r also testified that Perry agreed Ball needed to b e terminated. Perry , however, testified that he ha d “absolutely no invo lvement” in di scu ss ions concerning whether Ball should be fired. Acco rding to Perry, he did not remember if he was even asked t he question. Perry testified that if there was testimony that he agreed with the decision to terminat e Ball, that w oul d be a false stat ement.
Bowman testified about factors that are w eighed when Alleyton management was deciding whether to ter minate an employee. The only factor Bowman mentioned was “ additional cost on the com pa ny. ” Bowman , howeve r, de nied that costing the company money w as a factor in the decision to terminat e Ball. Bowman also testifi ed to the speed at which ready

- mix loads need to be delivered to a work site. According to Bowman, ready

- mix loa ds are perisha ble

. He explained the general rule of thu mb is that a driver has about 90 minutes to
tra nsport the load to a job site and pour it. Failure to timely deliver a load could result in Alleyton ’ s customer reject in g the load a nd send ing it bac k , forcing Alleyton to replace the loa d at its own cos t. According to Bowman, it costs8

Alleyton about $90.00 an hour, or a $1 .50 a minute, to operate a ready

- mix t ruck

. Gard ner was asked about A lleyton ’ s workers ’ co mp ensation in s ura nc e. Gard ner test ified it is a high

- deduc ti ble plan and he believed the deductible amount is $500,00 0

. He then agreed that , because of that high deductible, the money for Ball ’ s workers ’ c o m

p e nsation medical treatmen t and other benefits was coming
out of Al leyton ’ s pocket. On October 14, 2016, An derson and Gardner termin ated Ball. Anderson testified t ha t Alleyton ’ s ma nagement decided to terminate B all because “ he was unable to perform the esse ntial functions of hi s job. ” An derson further testified that she told Ball “why he was being ter minated at that meeting.” Anderson admitted du ri ng trial that al l she told Ball during the termination meeting was that he was not a “ good f

it. ” An derson charact eriz ed Ball as very “combative,” and
t old the jury “I was not going to spend my afternoon arguing with somebod y that we had decid ed to terminate.”
Ball reco rded the te rmination meeting. The recording was played for the jury during the tr ial. During th e meeting, after he was told that he was bein g fir ed because it was “ i n the best interest of everybody , ” Bal l kept asking for a reason that he was being fired. Gardner and Anderson repe atedly refuse d to exp lain w hy Ball was be ing fired beyond that it was the best thing for Alleyton. Anderson promised that s he w ould try to give Ball documentation explaining the reason for termination at a later time

. A nderson and A lleyton never p rovide d any te rmin at ion document ation to Ball. In add ition, A nde rson did not complete Alleyton ’ s own termination form unti l several days later.
Ball testified that Gardner and Anderson d id not give him a r eason, but simply sai d that they we re t er minating him. Accord ing to Ball, Anderson stated

“ the re is no reason . I t was in their best interest, but there was no reason.” Ball9

also told the jury: “I am still baffled today about the rea son.” Ball tes ti fied tha t Al le yton never g ave hi m any type of documentation or paperwork exp lai n ing why he was termina ted. Ball also testified that , prior to October 14, 2016, Alleyton had not given him any d ocumented “ write

- ups ” rela ted to a ny performanc e or s afety is sue s

. Thomas testified t hat “idea lly,” Ball should have been told on October 14, 2016 wh y he was being terminated. Thomas continued that Alleyton should tell an employee why a disciplinary actio n or te rmination occurred so that there is no mi sunderstanding between the p arties . Tho mas ag reed that honesty w as important, in part , b ecause it protects everyone involved. Thomas , during her trial testimony, could not think of a reason why All eyton w ould not tell an empl oyee who was b eing t erminated for a safety viola tion the reason he or she w as being f ire d

. Thomas ex plained that by “progressive,” the Alleyton rules mean that discipline needs to come in steps. A ccording to T homas , Alleyton expects that when there is a p ro gression or pattern of safet y issu es, they should be documented i n writin g c lose in time to when they occ urred

. She also believ ed it was important for t hose w ri tten documents to be communicated to the emp l oyee. Thoma s agre ed that an e mp l oyer should not, after the fac t, change the reasons f or a termin ation. In her op inion, do ing so would be acting on a pretext a nd dishonest. Additionally, Th omas testified that Alleyton ’ s sa fety rules should not be selectively en forc ed

. Th omas expressed he r view that an employer should nev er use a pretextual reason to fire an employee.
Thomas testified that documentation is important so “ that you have a record to go by” in all discipl inary actions, including ter mina ti o ns. Thomas agreed th at without documentation, there is “really no evidence that [ the dis c iplin ary action] occurred.” Thomas f

urther agreed that the purpose of the communication and10

documenta tion rules was that they were “a way of con fi r min g that everyone is acting h onestly.” Perry agreed t hat emp loyees like Ball deserved honest communication about

reasons for discipline or te rmination. Perry testified t hat an employer should n ever hide its reasons for te rminati ng a n employee , a nd it should never change its reasons for termination after t he fact.
Gardner also agreed that there was no legitimate business r eason for an employe r to hide a termination for job performance is sues causing safety p roblems

. Gardner w as asked whether “progressive discipline, giving verbal warnings, written warnings things like that, would have been appropriate in Mr. Ball’s case?” Gar d n er r eplied tha t it “[m]ay have helped.” But , in the ten mont hs Ball w orked aft er he was released back to full d uty, he was never d isciplined , and no performance issues were documented. Alleyton , o n its “Employee Separation Form , ” checked the box “ Discharge

– Job P erform an ce , ” under th e co lumn “ Involuntary Separati on

. ” There is a blank where co mments could be add ed explaining t he “ final incident, ” bu t that space was left empty . There was also an instruction to “ attach documentat ion if nec essary, ” but n o docu ments were a t tac hed. Ande rson test ified tha t the Employee Separation Form correctly identified the basis for B all’s termination. But , conversely, Bowman testified that Alle yton “ di d not terminate him for p erformanc e reasons.”
Bowman cont i nu ed that j ob performan ce w as no t the rea so n Ball was terminated because “ Mr. Ball did his jo b well. ” Most of the testimony cr i ticizing Ball’s work performance concerned the slow pace at which he worked

. On appe al, Alleyton cites safety as a reaso n for Ball’s terminat ion. Perry and Bo wman did crit ic ize Ball’s handling of the chute in one of Perry ’s videos, but that is the only specific safety prob lem identified by any11

Alleyton witness

. An derson , the per son who actual ly f ir ed Ball, testified that B all was not terminated for safet y reas ons. When asked if anyone at Alleyton told Ball he had been terminated for safety reasons, Anderson spec ifical ly testified that Ball

was not “ terminat ed based on safety reas ons

. ” An de rson then agreed tha t was “not an honest claim t hat th e jury sh oul d even consider.” After he was fired, Ball applied for numerous jobs. In additio n , he talked to numerous people about jobs, sta rt ed a Career Builder a ccount, and a Mons te r
account

. Ball admitted that it w as “ t ough to fi nd a job as a mid

- forties guy looki ng for work

. ” After searching for nearly a year, Ball foun d two part

- time jobs as a bus driver. Ball test ified t hat he is n ow making hal f or less of th e income that he made while working f

or Alleyton.
Ball filed suit a l leging Alleyton violated section 4 51.001 of the Texas Labor Code when it terminated his employment

. See T ex . Lab. Code Ann. § 45 1.001 ( pro hibi t ing a n employer from discharg ing o r otherwise discrim inating against an employee because that employee filed a workers ’ compensation claim in good faith

or instituted o r caused to be instituted in g o od faith a proce edin g under the statute)

. The case w ent to trial before a jury and the jury returned a verdict in B all ’ s favor. The trial court then signed a judgment i n favor of Ball. The judgment or dered that Ball recover from Alleyton (1) $956 ,187.00 in act ual d amages, (2) $750,000 exempl ar y dama ges, ( 3) pre

judgment and post

-

judgment interest, and ( 4 ) taxable
cost s of court. Alleyton filed a M otion for J udgment N otwithstanding the V erdict, for N e w T rial, or for Remitt it ur, which the trial court denied by written order. This

a ppeal followed.

A NALYSIS
I. Sufficient evi dence s upports the ju ry ’ s find ing that Alleyt on violated section 451.001 of the Texas Labo r Code.12

Alleyton argues in its first iss ue that the admissible evidence is fact ua l ly insufficient to su p p ort th e jury ’ s f in ding th at Alleyton terminated Ball because he had insti tuted a pr oceeding under the Texas workers ’ compensation stat ute. 2 In its second issue , Alleyton asserts that the trial co u r t abused its di sc retion when it ad m itted Plaintiff

’ s Exh i b it 4, the cl aims d iary , into evidence over a hear say objection

. B e cause these is sues are related, we address them together.

A. Standard of review In reviewing the factual sufficiency of the ev idence, we must exam ine the entire rec o rd, considering both the evid ence i n fa vo r of, and contra ry to, the challenged findings. See Mar itime O verseas Corp. v. Ellis , 971 S.W.2d 402, 406

– 07 (Tex. 1998); Cain v. Bain , 709 S.W.2d 175, 176 (Tex. 1986). When a party challenges the factual suffici e ncy of the evidence s upp ortin g a fi ndin g for whi ch it did not have the burden of proof, we may set aside th e verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unju st

. Barnhart v. Morales , 459 S.W.3d 7 3 3, 745 (Tex. App.

— Hou ston [14 th Dis t.] 20 15, no pet.)

. When a party attacks the factual s ufficiency of an adverse finding on which it had th e burden of proof, it must demonstrate on appeal that the

2 Alleyton ’ s firs t issue generally asserts tha t i ns uffi cien t e vidence supports t he jury ’ s finding tha t i t term inated Ball in violation of section 451.001 of the Texas Labor Code. It then went on to s pe cifically argue that , while Ball did introduce evidence supporting the j ury ’ s verdict, t h e evidence was “ thin. ” It went on to assert that “ the gre at weight of the evidence demonstrated that Alleyton termina ted Ball ’ s employment for a legitimate business reason: he could no longer safely perform his duties. ” B ased on Alleyton ’ s stated sta nd ard of review , arguments, and r equested relief , we c onc lude Alleyton ’ s first issue is limite d to a factu al suffi ciency chall enge and address it accordi ngly. Even if Alleyton ’ s first issue could be construed as a legal suffic iency challenge , based on the e vidence we have summarized abov e, an d Alleyton ’ s own concession that there is evide nce in the record supporting the verdict, we conclude that the evide nce is leg a lly sufficient

. See Univ. Gen. Hosp. , L.P. v. Prexus Health Co nsultants, LLC , 403 S.W.3d 547, 550 (Tex. App.

— Houston [14 th D ist.] 2013, no pet.) (stati ng that when an appell ant a ttacks the legal sufficiency of an adverse fin ding o n an issue on which it did not have the burden of proof, it must demonstrate on appeal t hat there is no evidence to sup port the adverse finding).13

adverse finding is against the great weight and preponde r ance of the evidence. Dow C h em. Co . v. F

rancis , 4 6 S.W.3d 237, 242 (Tex. 2001). The amou nt of evidence n ecessary to affirm is far less than the amount necessary to reverse a judgme nt. Id. This Court is not a factf inder. Id. (citing Ellis , 971 S.W.2d a t 407 )

. Instead, the jury is the s ole ju dge of the credibility of the witnesses and the w eight
t o affor d their testimony. Id. When presented with conflicting evidence, a jury may believe one witness and disbe lieve others, and it also may resolve incons i stencies in the testi mony of any wi tnes s. McGalliard v. Kuhlmann , 722 S.W.2d 694, 697 ( Te x. 1986); Eure cat U.S., Inc. v. Marklund , 527 S.W.3d 367, 383 (Tex. App.

—

Houston [14th Dist.] 2017, no pet. )

. W e may not , ther efore, pass upon the witnesses’ credib i lity or substitute ou r jud gme nt for tha t of the jury , even if the evidence would also supp ort a differen t result. Eurecat U.S., Inc. , 527 S.W.3d at 3 83. If we determine the evidence is f actually insufficient, we mus t detail the evi dence relevant to the i ssue and state in wha t reg ard the c ontr ar y evidence greatly outweighs the evidence in supp ort of the ver dict; we need not do so when affirming

. Id. at 383

– 84

. W hen hearsay is admitted o ver a n app ropriate objection it has no probative

va lue and should not be considered when evaluating the s uffici ency of the evidence

. Atkinson Gas Co. v. Albrecht , 878 S. W.2d 236, 242 (Tex. A p p.

— Co rpu s Christi 1994, writ denied). We therefore must first res olve Alley ton ’ s second i ssue challenging the trial co urt ’ s admission of Plaintiff ’ s Exh i b it 4, the clai ms d iary , into evidence

. The decision to admit or excl ude evidence l ies within the sound discretion of the trial court. Bay Area Healthcare Grp., Ltd. v. McSha ne , 239 S.W.3d 231, 2 34 (Tex. 2007). A trial court exceeds its discretion if it act s in an arb itra ry or unreasonable man ner or without reference to g uiding rules o r principles. Barnhart , 459 S.W.3d at 742 (citing Bowie Mem’l Hosp. v. Wright , 7914

S.W.3d 48 , 52 (Tex. 2002)). W hen reviewing matters co mmitted to the trial court’s discre t ion , a r eviewi ng c ourt may not substitut e its own judgment for that

o f the trial co urt. Id. Thus, th e question is not whether this c ourt would have admitted the evidence. R ather, an appellate c ourt will uphold the tri al court’s evi dentiary ruling if th e re is an y legi tima te basis for the rulin g, even if that ground

was no t raised in th e trial court. Id . Therefore, we examine all bases for the trial court’s decision that are suggested by the rec ord or urged by the part ies. Id. A party seeking to re v ers e a j udgmen t ba sed on evidentiary err or must prove that the error probably resul ted in rendition of an improper judgment, which usually requires the complaining party to sh ow that the judgment turns on the particular evidence exclu ded or admitted. Id

. To d ete rmine whet her e videntiary

error probably resulted in the rend ition of an im proper judgment, an appellate court reviews the entire record. Id. (citing Interstate North borough P’ship v. Sta te , 66 S.W.3d 213, 220 (Tex. 2001)).

B

. The trial court did not a bus e its disc retion when it a dmitted Plainti ff ’ s Exhibit 4.
All eyton argues i n its second issue that the trial cou rt abused its discretion when it admitted Plaintiff ’ s E xhibit 4, the claims diary , becau se the docu ment was hea rsay and Ball d id not es tab lis h that th e ex hibit was dra fte d by Alleyton ’ s agent. See Tex. R. Evid. 801( e)(2)(D) (providing that a statement is not hearsay if it i s offered a gainst a par ty and it was drafted by an agent or empl oye e of the part y)

. We need not reach the question whe the r the ins uran ce company ad justor who added notes into Plainti ff ’ s Exhibit 4 w as Al leyton ’ s agent because we conclude that the exhibit was admis sible pursuant to Rule 801 ( e)( 2)(B ) , which provi des that a statement is not hearsay i f the statement is off ere d a gainst a par

t y and that pa rty ha s manifested that it had ad op ted or believe d the exhibit was true. See Tex. R.15

Evid. 801(e)(2)( B); Reid Rd. Mun. U til

. Dist. No. 2 v. Spe edy Stop Food Stores, Ltd. , 337 S. W.3d 846, 856 (Tex. 20 11) ( stating rule that “ whe re a party h as u sed a documen t made by a third party in s uch a w ay as amounts to an approval of its contents, such statem e nt may be received against him as an admission by

a doption ” ) (internal q

uo tation omitted).

T he claims diary , Plaintiff ’ s Exhibi t 4 , wa s p roduced d u rin g discovery b y A lleyton

. The claims diary ident ifies Gar dner as the “ Create User. ” Thomas testified that part of her job a s Alleyton ’s safe ty adminis trator was to re view and

ma int ain the workers’ compen sat ion files

. She f urther te stified that it was her “pattern and practi ce to make sure that the claims diary was accurate” as best she could. Thomas trusted the adju stors she worked w ith a nd trusted them to be

acc ur ate in the no tes they en tered into t he c laims diary . In ad dition, Thomas
t estified that she would hav e reported any inaccuracies that she found in the claims diary to the adjustor

. Accor ding to Thomas , A lleyton ke pt the claims di ary as part of its own records regard i ng employee wo rker s ’ comp ensation cla ims and she relied on them to report the st atus of those claims, inclu ding Ball’s claim , to Alleyton ’ s upper management, including Gard ner

. We conclude that Plai ntiff ’ s Exhibit 4 fit s within Rule 801(e)(2) ( B) and is th er efor e not hearsay. See Hern andez v. Z

apata , No. 04

- 19

- 00507

- CV, 2 020 WL 3815932, at * 6 (Tex. App.

— San Antonio July 8, 2020, no pet.) ( m em. op.) ( concluding that because party produced ban k statemen ts and by adoptin g t he bank statem ents as h is own, party m anif

ested an adoption o r belief in their truth)

. We hold t h e tria l court did not abuse its di sc retion when it admitted Plain tiff ’ s Exhibit 4 into evidence over Alleyton ’ s hearsay objectio n. See id. ( “ Th erefore , th e b ank statements are not hea rsay and w er e ad missible as stateme nts by a party opponent. ” ). We overrule Al leyton ’ s second issue.16

C. Factually su fficient evidence supports the jury ’ s fin ding tha t Alleyt on terminated Ball ’ s employ ment because he had institu ted
a proce eding under the wo rker s ’ com p e nsat ion statu e. In it s first issue Alleyton argues that the admis sib le evidence is factually insufficien t to support the jury ’ s finding that it terminated Ball ’ s employment in

re taliation for instituting a proceedi ng under the workers ’ comp ensatio n stat ut e. Alleyton ’ s sufficien cy argument is based , in part, on its contention that Plaintiff ’ s E xhibit 4 , the claims diary, was inadmissible hearsay . We have already rejected Al leyton ’ s hearsay a rgument

. I n addition, when making its suff icie ncy challenge , A ll eyton focus es ex clusively on evidence c ontrary t o the jury ’ s verdic t and ignor es the ev idence s upporting the verd ict

. This, how ever, i s not the standard of review

we are re quired to follow. While we do e xamine all of the evidence in the record,

we are no t permitted to r eweigh the evidence , pas s upon the credibility of the witnesses , or substitute our judgm ent for that of the jury. This is true even if the evidence could s u pport a differen t result. Thom a s v. Uzoka , 290 S.W

. 3d 437, 45 2 (T ex. App.

—

Houst o n [14th Dist.] 200 9, pet. denied). With t his preface, we turn to Alleyton ’ s suff

iciency ch allenge. The Labor Code provides , in pertinent part, that a person may not discharge or discriminate against an emp l oyee because the employee has: (1) filed a worke r s ’ compensation cl aim in good faith; (2) h ired a lawyer to represent the e mployee in a claim; or (3) instituted or caused t o be instituted in good faith a workers ’ compensatio n proceeding. Tex. Lab. Code A n n. § 451.001

. “ An em ployer wh o vi olates this st a t

u te is subject to a retaliation claim, wh ich constitutes an exception to the tra ditional doctrine of employment at w ill fo u nd in Texas law. ” Kingsa ire, Inc. v. Melendez , 477 S.W.3d 309, 312 (Tex. 2015) (i n ternal quotation marks omitted )

. To prove a ret a li atory discharge claim, the employee must show that the employer ’ s action would not have occurred when it did had the empl oyee ’ s17

protected conduct , such as instituting in goo d faith a workers ’ com pen sation proceeding , not occurred. Hag gar Clothing Co. v

. H

e rn andez , 164 S. W.3d 386, 388 (Tex. 2 005 )

. Alleyton argues the evidence is insu fficient because Ball intr oduced no direct evidence that Alleyton retaliated against him in vi olat ion of section 451.001 of t h e Labor Code . Ball was not, howev er , requ ired to p rove his c laim only through direct ev id ence. See Kingsaire, Inc. , 477 S.W.3d at 312 ; Cont ’ l Coffee Prods. Co. v. Cazarez , 937 S.W.2d 444, 4 51 ( Tex. 1996) ( “ Circumstant ial

e vidence , and the reasonable inf ere nces from such evidence, ca n pr ove the c ausal

c on nection. ” )

. Instead, Ball could prove his claim through circumstantial eviden ce

. Kingsaire, Inc. , 477 S.W.3d at 312

. Such circumstantial evidence may include, but is not limited to , an employer ’ s expre ssion of a negative attitude
t owar d the emp loyee ’ s i njury, an em ployer ’ s discriminatory tre atment of the employee compared with si milarly sit uated employees, an employer ’ s failure to adhere to established company policy, and evidence that the employer ’ s st ated reason for termination wa s fa lse. Id. In a dd it ion, clo se timing between the employe e ’s protected activity and th e adverse employment action is also relevant circumstantial evidence of a causal link and a retalia tory m otive. Salas v. Fluor Daniel S ervs. Corp. , 6 16 S.W .3d 137, 1 46 ( Tex. App.

— Housto n [14th Dist .] 2020, pet. filed ). Having reviewed the evidence, we conclude the evidence is factually sufficient to support the jury ’ s finding. In arguing to the contra ry, A lle yton ignores th e evidence in the record supporting the jur y ’ s decision , addres se s each cat egory of circumstantial evi dence independently, and then asks this c ourt to rew eigh the evide nce and believe only their witnesses ’ testimony. This we cannot do. Thomas , 290 S.W

. 3d at 452

.18

Tur ni ng to the r ecord evidence , we begin with the cla im s diary

. The claims diary establishes that , at least by September 20, 2016, Al leyton ’ s worker s ’
compens ation carrier had notified Alleyton , through Thomas , that Ball was di sputing the determination that he was at m aximum medical impr ovement and

r eady to r eturn to w ork without restrictions , and tha t he would request a BRC if a n agree ment had not been worked out by September 16, 2016

. Thomas test ified that she kept Alleyton ’ s upper management , including Gar dner , inform e d of wha t was hap p ening with r egar d to all workers ’ compensation claims. The claims diary also shows there was extensive discussion on October 14, 2016 , the sa me day that Ball

was terminated, regarding the statu s of Ball ’ s workers ’ com pensation claim , Ba ll ’ s noti ce to the workers ’ comp ensat ion carrier that he intended to file a BRC , and A lle yton ’ s desire t o have Ball ’ s claim file tr ansferred to Alleyton ’ s local attorney

. Based on this evidence, the jury could have rea s o n ab ly found that Alley ton w as

a ware , when i t terminated Ball, that Ball planned to i nsti t ute a pro ceeding under the w or kers ’ co mpensation statu te

. See Glass v. Amber, Inc. , No. 01

- 00

- 0 0589

- CV, 20 02 WL 31430097, at * 4 (Tex. App.

— Houston [1st Dist.] Oct

. 31 , 2 002, pet. denied) ( “ Wron gf

ul discharge is a viable cause of action wh en an employee i s fired once he or she had begun taking steps towards ins tituting a pr oce e ding for collecting wor kers ’ comp ensation benefits. ” ). The j ury could have also reasonably deter mined , ba sed on the clai ms diary and Thomas ’ s testimony, that Gardner , Anderson, a n d Bowman knew this information befo re t he y made the decision to terminate Ball. Se e i d. (stating jury could have disb elieved emp loyer ’ s witnesses and in stead beli eved empl oyer kn ew about em p lo yee ’ s workers ’ c ompen sation

c laim before firing hi m )

. Finall y , the jury, based on this evidence, could h ave

reas o nably concluded that termination occurred in c l ose temporal proximity to Ball ’ s decision to request a BRC. See Sala s , 6 1 6 S.W .3d at 146

.19

Other e vide nce in the record establishes th at Alley ton expres sed a n e gative attitude tow a rd Ball and treated Ball differently than other employees. This evidence i ncludes Ball ’ s testimony that A lleyton ’ s drivers routinely helped eac h oth er pe rfor m their tasks

. According to Ball, the other dri vers helped hi m , because he had helped them in the past. According to Ball, Alleyton had encouraged an

“ A

- tea m ” pol icy of being a team and e ncouraging w orkers to help each othe r out. Bu t, P erry testi fied that t he same day he videoed Ba ll working, Pe rry sing led Ball
out and proh ibited the other drivers from helping him. Perry testifi ed that he “ told
everyone they needed to g o on back and perform the ir own job and n ot to help him bec ause he was released to work, so he needed to take care [of] h is own job. ” Perry , di d not testify that Alleyton changed their o verall policy of encouraging other workers to he lp each other out. The jury could also ha v e reasona bly

conc luded that P erry and Gardner demonstrated a negative attitude toward Ba ll when Perry videoed Ball performi ng his job , and Gardner went t o the job site and watched Pe rry “ up an d down ” while Per ry h ose d off his truck. The ju ry als o he ard extensive testimony the jury could have reasonably f ound demonstrated that Alleyton f ailed to adhere to its policies when it terminated Ball. Se e S

w. Bell Tel. Co. v. Garza , 1 64 S.W.3d 607, 617 (Tex. 2004) ( eviden ce th at e mploy er did not fol l o w it s policies supported the jury ’ s finding of a section 451. 001 violation). Several Alleyton witnesses testified that Ball was a good

w orker. They also testified that Alleyton ’ s policies cal led for a progr essiv e approac h to disc iplin in g em ployees with each step of the proc ess documen ted and

comm uni cated to the employee

. The witnesses also testi fied that these procedures applied to all d isc iplinary issues whether they related t o saf ety or jo b perform ance pr o ble ms. The evidence is undisputed that Bal l was n ot “ written

- up ” for any safety or performance issues before o r after his on

- the

- job in jury. Yet, when asked20

about th e reason Ball was terminated, Alleyton ’ s w i tnesses t esti fied he wa s
term inated because he could not safely perform his job.
Th e j ury could also have reasonably determined that Alleyton ’ s stated

reason for terminating Ball was false

. See Cont ’ l Coffee P rods. Co. , 937 S. W.2d at 45 1 (stating th at c ircum s ta ntial evid ence that the purported reason for fi ri ng employee was false can establ ish causal link)

. The jury vi ewed Perry ’ s videos of Ball working and they could have decide d th at he was perfor ming his wo rk safely , if slo wly. In conjunct ion wi th t his evid ence , the jury heard Anderson t estify that Ball w as not terminat e d becau se he w orked slowly

. The jury could have credited this evidence and belie ved that Ball ’ s sl owness was no t the true reason he was fired, but believed it was the econo mic cost associated wit h Ball ’ s slowness that motivated Alleyton ’ s decision in part

. It could also have found, based on
Bowman ’ s and Gardner ’ s testimony that the accumulat ing costs ass ociated w ith Ball ’ s workers ’ c ompen sation claim, which would now includ e the cos t of an
attorn ey, was a motivating fac tor in the decision to terminate. Finally, the jury heard the differing vers i ons of how the de cision to terminate Ball w as reached th a t

w ere told by Alleyton ’ s own w itnesses , which are detail ed a bove , and it also hear d Ball ’ s rec or ding of the termination m eeting . The jury could have r e aso nably discredited the All e yton ’ s witnesses ’ testimony ex p la in ing that B all was terminated because he could not safely per form his j ob and ins tead believed Ba ll was
ter minate d because of his ongoin g workers ’ co mpensation “ issue ” as Anderson intim ated a t th e beg inning of the recorded termination meeting

. While t her e was con flicting evidence in the record on the reason Alleyton terminat ed Ball, the jury was enti tled to believe the test im ony of one wi tness and
not that of ano ther. Barnhart , 459 S.W.3d at 74 7

. It was also emp owered to resol ve any inconsiste ncies i n t he evidence , inclu ding inconsistencies wi thin any21

w itness ’ s testimony. Id. The fa ct that the jur y resolved any c onflicts o r incon s is ten cies in the e vidence against Alleyton d oes not make the evidence factual l y i nsu fficient

. Id. We conclude that the jur y ’ s finding th at Alleyton terminated Ball because he had instituted a pr oceeding under the workers ’ compensation a ct is not so contrary t o the overwhelming weight of the evidence as to be clearly wrong and unj ust

. We overrule Alleyton ’ s first issue.

II

. Sufficient ev i dence supports the jury ’ s implied rejection of Alleyton ’ s mitigation of d amages aff irmative defense

. Question Number 2 of the charge asked the jury to deter mine Ball ’s damages. The ques tion included an instruction that the jury shou ld not include in its “ an swer any amount that you find Joseph Ball coul d have e a rned by exercising

reasona ble diligen ce in seeking o ther employme nt

. ” The jury then found that Ball had su stained $164, 168.00 in past lost wages and , in reasonabl e pr obability , wou ld sustain $675,519.00 i n future lo st wages. Alleyton argues in i ts third issue that the evide nce is legall y and fact ually insuffi cient to support the jury ’ s answer s because Ball failed to mitig ate his damages . We disag r ee

. A. Standard of r eview and appl icable l aw A wrongfully discharged employee has a duty to mitigate damages. Am. West Airlines, Inc. v. Tope , 935 S.W. 2d 908, 915 ( Tex. App.

— El Paso 1996, writ dism ’ d). The doctrine of mitigatio n of damages prevents a party from recovering f or damages tha t could be av oided by reason able ef forts on the part of the plain t iff

. Great Am. Ins. Co. v. North A ustin M un. U til. D ist. , 908 S. W.2d 415, 426 (Tex. 1995). Reason able efforts are th ose that a party can avoid at a trifling expense or with r easonable exer tions. Id. The party asserting th e affirmative defense has the b urden of proving that damages could ha ve b een mitiga ted. See Coo k Composites, Inc. v. Westlake Sty rene Corp. , 15 S.W.3d 124, 135 (Tex. App.

— Houston [14th22

Dist.] 2000, no pet.)

. Here, All eyton, as the party raising mitigat ion of damages as an af f irmativ e defense , bore the burden to prove lack o f diligenc e by Ball and the amount by which the damages w ere increased because of Ball ’ s alle ged failure to mitigate

. Kartsotis v. Bl och , 503 S.W.3 d 506, 522 (Tex. App.

— Dallas 2016, pet. denied). “ Gen erally , t he reasonableness of plai ntiff ’ s expla nation for reje ct ing a job off er, and the adequacy of efforts to mitigate, are fact questions prope rly left to the jury. ” Am. West Airlines, Inc. , 935 S.W .2d at 915

. A party attacking the l egal suffi ciency of the evidenc e supporting an adverse finding on an issu e on which i t had the b urden of proof must demonstrate th at the evidence conclusively e stablishes all vital facts in support of the is sue. Dow Chem

. Co. , 46 S.W.3d at 241

. In conduc ting a legal

- sufficiency review , we consider t he evidence in the l ight most favorab le to the challenged fi nding and indulge every

reason able inference that supports it. Univ. Gen. Ho sp., L.P. , 403 S.W.3d at 550

. The evidence is lega lly sufficient if it w ould enable reasonable and fair

- minded people to reac h the decisio n und er review. Id. at 551. We m ust credit fav orable evide nce if a reasonable trier of fact could, and disregard contrary evidence unless a reasonable trier of fact c ould not. Id. The tr ier of fact is the sole judge o f the witnesses ’ credi bility and th e wei ght to affor d their testimony

. Id.

We rev iew the factual suffic ien cy of the evidence acc ording to the standard of review set fort h above i n section I( A).

B. Lega l ly and factually suff icient e vidence support s the ju ry ’ s determinat ion tha t Ball mitiga te d h is damages.
In m aking its mi tigation ar gum ent Alleyton places much emphasis on (1) Ball ’ s t estimon y that he could not recall applying for another ready

- mix dr iver jo b ; (2) evi dence from its own w itn esses th at Ball , as a t rained ready

- mix driver, coul d have q uickly obtained a comparable jo b with another ready

- mix company ; and ( 3 )23

Ball turned down a dispatcher position a llegedly offered by Alleyton tw o months after All eyt on fired him

. Because Alleyton ignores the evidence s upporti ng the jury ’ s d ama ges determin ation , and the ev idence de monst rating B all ’ s efforts to obt ain employment a fter he was fired , we di sagree.
While Ba ll may not have applied f or ready

- mix driver jobs, the ju ry could have reasonabl y believ ed his ex planat ion for why he did not ap ply for or a ccept a driver pos ition at anoth er ready

- mix company was re asonable . Ball testifie d, and Alleyton witnesses ag reed, that Alleyton offered its d rivers a guaranteed forty

- hou r paid work week, even when the weather pr ev en ted work. Ba ll t estified tha t he investigate d other ready

- mix com panie s a nd his effort s revealed no ne offering a comparable pay guarantee. Ball testified that he did not believ e it was in his family ’ s best e conomic interes t t o accept one of th ose jobs whe re h e might end up working o nly a few hours a week. While Bowman testified Alleyton ’ s compe ti tors did offer a gu aranteed pai d w ork week, the jury could have disb eli eved his testimony and inst ead believed Ball ’ s

. In addition, Alleyton has not cite d any legal authority requir ing that a fir ed employee, in order to mi tigate his damages, m ust apply for the exact same type of job. I n stead, to mitigate damages, a fired

em ployee must make a reasonable e ffort to seek s ubstantiall y similar em pl oyment

. Her tz E qu ip. Rental Co r

p

. v

. Barous se , 365 A.W.3d 46, 58 (Tex. App.

— Houston [1st Dist.] 2011, pet. de nied)

. The jury could have reasonably found tha t Ball , who accepted two co mmercial driver jobs, did so af ter he was fire d.

W e t u r n next to Alley ton ’ s assert ion that Ball alleged rejection of a dispatcher po sit ion at Alleyton establi shes he faile d to mitigate his damages . It is undi s puted that Ball received a text message from an Alle yton phone number statin g: “ How you do ing? Well, I hope. Hey , they got dis patching po sition open

. I don ’ t kno w if you want to give it a shot or not. ” Ba ll testified that he did not24

know w ho at Al leyton , t he company that had recently f i red him, sent the tex t
message

. So, Ball , se eking more inf ormation, texted back “ W hat ’ s up? W h o is this? ” Ball explained that h e be lieved the text might be a pra nk or have be en sent in error , and he want e d clari fication

. Ball testifi ed no one from Alleyt on ever

re sponded to his questions. Ball further testified he was suspic ious because this same company had fire d him for no rea son and wit hout offering a different job

. A lleyton argues Ball ’ s respon se to that text messag e was in adequate. In A lleyton ’ s view , Ball ’ s response equates to reject ing a dispatcher job of fer. We disagree this is the only view the jury could have taken o f this interaction. We conclude the jury could have reasonabl y found th at Ball made a reason able effort in response to the Alleyto n text message

. Am. Wes t Airlines, In c. , 935 S.W.2d at 915 ; Azar Nut Co. v. Caille , 720 S.W.2d 685, 688 (Tex. App

. — El Paso 1 98 6), aff ’ d 734 S.W.2d 667 (Tex. 1987) ( “ There was ev ide nce in the record concerning t he sinc erity of the job offer, and it was pro perly up t o the jury to resolve whethe r or not the A ppellee had

a re asonable explanation for rejecting the job off er. ” )

. Fin al ly, Alle yton minimi zes the e vi dence demonstrating that Ball applied for numerous job s after he was fired and eventu ally accepted two part

- time driving jo bs making hal f or less of his pa y at Alleyton. The jury could have reasonably found that these effor ts by Ball to find other employm ent were suf ficient to mitigate his damages. Am. West Airlin es, Inc. , 935 S.W.2d at 915

. We conc lude the evidence is leg ally and factu ally sufficient to support the jury ’ s implied rejection of Alleyton ’ s mitiga tion of dam ag es affirmative defense

. We ov errule Alleyton ’ s third issue

. III. Sufficient evidenc e suppo rts the jury ’ s e xemplary damages award

. Alleyton asserts in i ts fourth issu e that Ball failed to offer legally sufficient25

pro of that Alleyton acted wit h malice w h en it terminat ed Bal l

. 3 Ball re sponds that under the charge that was submitted to the jury w ithout objection, suffic ient evidence supports the exemplary d amages award ed by the ju ry. We agree with Ball

. Here, Question No. 3 of the charge asked the jury: “ Do you find , by clear and convi nc ing evidence that the harm, if any, to Joseph Ball r esulted from the malice or gros s negligence o f Alleyton Resource Comp an y? ” Question N o. 4

as ked the jury “ What sum of money , if any, should be assess ed a gainst Alleyton Resource Comp any and aw arded to Joseph Ball as exemplary damages, if any, for the co nduct found in response to Question 1 and 3? ” Alleyton did no t object to

e i ther question. We there fore measure the sufficiency of the evidence against the charge actually given to the jury

. Os terberg v. Peca , 12 S.W.3d 31, 55 (Tex. 2000). Alleyt on does recognize this rule whe n, in a footno te, it states t hat the

c harge did inst ruct the jury that gross negligence could support exemplary damages. It then ignores the fact t hat the j ury could have based its exemplary damages award on a finding that Alleyton was gross ly negli gen t wh en it f ired Ball in retaliation for i nitiating in good faith a workers ’ com pen sation proc eeding . We therefore may affirm the jury ’ s exe mplary dama ges award if ther e is sufficient evidence that Alle yton was gro ssly negligent when it terminat ed Ball regardless of whether su fficient evidence su pports a ma lice finding

. See Wal

- Mart Stores, Inc. v. Sturges , 52 S.W.3d 711, 715 (Tex. 2001) ( in a tortious interference with contract case stating that legal sufficienc y analysis must be made “ in light of the jury

3 Al leyton specifically a rgued in its brief that “ Ball failed to offer any evidence th at A lleyton intended to cause or disre garded an injury disti nct from his termination. ” Al leyton
con t in u ed that same a rg ument later in its br ief when it asserted that “ Ball did not submit any evidence of an in dependent harm. ” Finally, Alleyton concluded this issue by stating t hat “ the trial rec ord does not support an award of exemplary damages. ” We constru e this as a cha l lenge to the legal sufficien cy of the evidence s upp orting the jur y ’ s exemplary damages award. Alleyton makes no ch allenge to the actual am ount of exemplary damages awarde d by the jury.26

charge th at the dis trict court ga ve wit hout objection ” ) ; City of Fort Worth v. Zimlich , 29 S.W.3d 62, 71 (Tex. 2000) ( stating t hat when n o object ion was made to jury instruction, evidence to support a finding b as ed on the instruction should be

assesse d “ in li ght of

” the inst ruction given )

. Q uestion No. 3 instructed the jury that
“G ross negligence ” means an act or omission by Alleyton Resource Compan y, 1

. which when viewed objectively from the standp oint of Alle yton Resource Compa n y at the t i me of it s occurrence i nvol v e s an extreme degree of r isk, considering the probability and magnitude of the potential ha rm to others ; and 2 of which Alleyton Resour ce Company h as a ctual , subjective awareness of the risk involve d, but nevertheless proceeds wi th cons c ious indiffere nce to the rights, safety, or welfare of others. In addit ion, the jury was instructed that , in order to fin d Alleyton was grossly negligent, i t must find tha t Alleyton was acting thr o ugh a p ers on employed by Alleyton as a vi ce princ ipal who was a cting in t he course and scop e of employment

. F inally, the jury was instructed that a vice principal includes a

co rporate o fficer, a person wh o has th e authority to employ, direct, a nd discharg e

an Alleyto n employee, or a pe rson cha rged with the mana gement of a department

or divi sion of Alleyton ’ s business.
Ther efore , under the charge given to the jury and our standard of review , the evidence is lega lly sufficient to suppor t exemplary damages if, when considering
t he entir e record, ev id ence exist s that is capable of producing a firm belief or

c onviction that Alleyton acted with gross ne gligence when it retaliated against Ball because h e exercised his right to institute in go od faith a procee ding under the Workers ’ C ompensat ion Act

. See Anci ra Ent erprises, I nc . v. Fi sc her, 178 S.W.3d 82, 93

– 9 4 (Tex. App.

— Austin 2005, no pet.) ( examining sufficiency of the27

evidence supporting exemplary d amages awa rded i n an employment discrimi nation reta liation case). There is no disp ute t hat the Alleyton employees involved in the deci sion to terminate Ball

—

Anderson, Gardner, and Bow m an

— qualify as vice principals as defined in the jury charge. These wi tnesses , along wit h Tho mas , who reporte d directly to Gard ner, testified t o an awaren ess that t erminating an employ e e in

re taliation for instituting in good faith a proce e ding un der the Workers ’ Compensation Act was not only against Alle yton ’ s policies, but also viol ated the law. We con clud e this evidence would enab l e a reasonable juror to infer a firm belief or con viction that Alleyton was subjectively aware that retaliating against Ball for instituting a workers ’ c ompensation proceeding would violate his legal right s , yet it proceeded wi th consc ious in difference t o th at risk, and that r etaliati ng against Ball objectively involved an extreme degree of risk of violating Ball ’ s legal rights. Id. at 95. We conc lude the evidence supporting the exemplary damag es award is legall y sufficient and overru le Alleyton ’ s fourt h issue.

IV. The trial court did not abuse its discret ion when it refused to include Alleyton ’ s requested at

- will employment instruction in the jury cha rge. In it s fifth issue Alleyton argues tha t the tr ial court abused its di scretion

w hen it refused to s u

bmit its requested at

- will emp loyment instruction in the jury charge. Alleyton ’ s requested instr uction provided: You are instructed that, when an empl oyee is hired for an indefinite period of ti me, the employment relationship may be te rminated at will by either party. Under t his “at will” rule, the employer may, without liability, discharge the employee for a good reason, a bad reason, or no reason at all. You are further instructed that “Josep h Ball” was an emp loyee at will and that “his employer” coul d discharge him at any time for any reason, so long as that reason did not violate any law. Alleyton asserts the trial court abused its discre tion because the proposed28

instruc tion accura tely states the law, was sup po r ted by the evidence and plead i ngs, and , in A l leyton ’ s view, w as reasonably necessary for the jury to render a proper verdict. A trial court must submit in its charge to the jury al l questions, instructions, and definitions t hat are raised by the pleadi ngs and the evidence. See Tex. R . Civ.
P. 278; E.I. Du Pont de Nemours & Co v. Roye , 447 S.W.3d 48, 56 (Tex. App.

— Houston [14th Dist.] 2014, pet. dism’d) (citing Hyundai Motor Co. v. R odriguez , 995 S.W.2d 661, 663

– 64 (Tex. 1999 ) ). The parties ha ve the rig ht to be judged by a jury proper l y instructed in the la w. Crown Life Ins. Co. v. Casteel , 22 S.W.3d 378, 388 (Tex. 2000). The goal , therefore, is to submit to the jury the is sues for decision logically, simply, clearly, fairl y , correctly, and c ompletely. R oye , 447 S.W.3d at 56. To ac h ieve this goal, trial courts enjoy broad discretion so long as the charge is legally correct. Id. Determining what jury instructions are necessary

an d proper is within the trial court’s discre t ion. Shupe v. Lingafelter , 192 S.W3d
57 7, 579 (Tex. 2006). When submitting the ju ry charge, a trial court is afforded more discretion when submitting instructions than when submitting questions.
Bexar C n ty. Ap praisal Dist. v. Ab do , 399 S.W.3d 248, 257 ( Tex. App.

— San Antonio 2012, no pet.). When a trial court re f uses to submit a reque sted instruction or definit ion, the issue on appeal is w hether the request was reasonably necessary to enable the jury to render a proper verdict. Eurecat U S, Inc. , 527 S.W .3d at 380

. We review that dec ision for an abuse of discreti on. Shupe , 192 S.W.3d at 579. Alleyton asked the court to inc lude the proposed at

- will employment instr uction in the liability qu estion submitt ing Ba ll ’ s section 451.001 retaliation claim to t h e jury. The question at i ss ue tracked the language of the st atute when it

a sked wh ether Alleyton dis crimi nate d against or terminated Ball because he filed a29

workers ’ compen sation claim in good faith, or institut ed , or caused to be i nstituted in good fait h a proceeding under t he Work ers ’ Com pensation Act. See Spenc er v. Eagle Star Ins. C

o

. o f Am. , 876 S.W.2d 154, 157 (Tex. 19 9 4) ( stating that when submitting statutory cause of action, charge s hould track language of the statute as cl osel y as possible). The trial court also in cluded in the question an in st r uction informi n g the jury that “ an employer does not terminate or discrimi nate against an employee for filing a work ers ’ compensation cl aim in good fa ith or institut ing or

ca using to be institu t ed a workers ’ compensation clai m in go od faith , i f the employ er would have terminat ed t he employee when it did even if the employee had not filed work ers ’ compensation cl aim in good faith or institut ing or ca usin g to be instituted a workers ’ compensation c laim in good faith

. ” Liability u n der section 451. 001 of the Workers ’ C ompen sation Act is an exception to the at

- will emp lo yment doctrine. Johnson v. Waxahachie Indep, Sch.
Dist. , 322 S.W.3d 396, 399 (Tex. App.

— Houston [1 4th Dist.] 2010, no pe t.) . As a result, the trial co urt coul d have con cl uded that t he jury question at i ssue already

a dequately addressed Alleyton ’ s right to terminate an employ ee and m ight have conf used the jury by injecting a defini tion of the at

- will d octrine into a case ba sed
on a sta tutory exception to that very same doctrine. Simi lar ly, the trial cour t could have reasonably conclude d that the requested instruction mis stated the law appliable to the facts of the case because the cause of action at is sue was a statutory ex ception to the at

- will do ct rine

. An instructi on that misstate s the law as applicab le to the facts or misl eads the jury is impr oper. Halmos v. Bombardier Aero s pace Corp. , 314 S.W.3d 606, 617 (Tex. App.

— Dallas 201 0, no pet.)

. Accordi ngly, we conclude the trial court did not abuse its d iscretion when it refused Alley ton ’ s proffered in str uc tion. We overrule Alleyton ’ s fifth issue.30

V. Alleyton waived its sixth i ssue . Alleyton alternatively argues in its sixth issue that the damages awarded t o Ball , except f

or hi s past lost wages, are exc essi ve. Alleyt on then cites Rule 46.3 of th e Texas Rules of Appellate Pr ocedure and a single case , which it asserts stands for the proposition th at an ap pellate court may su ggest a remitt itur whe n there is some evid e nc e of dama ges but not enough t o support the full amou nt. A ll eyton ’ s argument is c ontained in a single paragrap h. It offers no explanation as to why they are excessiv e ba sed on t he record evidence and any applicab le legal aut hority

. See Tex. R. App. P. 38.1 (st a ting that a brief must contain a clear and co n cise

ar gument for the conten tions made with appropriate citations to legal authority and to the record). As such, Alleyton ask s this court to search the appellate record f or evidence supporting its co ntention

. B ut, it is an appell ant ’ s burden to discuss his

ass ertions of error, and we have no duty

– or even right

– to perfo rm an independent review of the record and applicable law to determine whether there i s error. Hernandez v. Hernandez , 318 S.W.3d 464 , 466 (Tex. App.

— El Paso 20 10, no pet.); s ee San Saba Energy, L.P. v. Crawford , 171 S.W

. 3d 323, 338 (Tex. App.

— Houston [14th Dist.] 2005, no pet.) (holding that “ parties asserting er ror on appeal still must put forth some speci fic argu ment and analysis sho wing that the record

a nd the la w supports their conten tions ” ). Therefore, even lib erally construing Alleyton ’ s sixth issue, we cannot con clude that i t has adequatel y briefed this is sue. Beca use of t his inadequate b r i efing , Al leyton has waived its s ixth i ssue. See Tex. R. App. P. 38.1 ; San Saba Energy, L.P. , 171 S. W

. 3d at 338

. C O NCLUS I ON Having overrule d Alleyton ’ s issue s on app eal, we affirm the tri al court ’ s fi nal judgment.31 /s/ Jerry Zimmerer Justice

P anel consi sts of Justices Bo urliot, Zimmerer, a nd S pain (Spain, J. concurring without opinion).