## In t he Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 23

- 00021

- CV

PITTSBURG STEEL , LLC , Appellant

V. ARTHUR PALMER , Appellee

On Appeal from the 76th District Court Camp County, Texas Trial Court No. CV

- 21

- 03650

Before Stevens , C.J., van Cleef and Rambin , JJ. Memorandum Opinion by Chief Justice Stevens2 

### ME MORANDUM OPINION
A rthur Palmer , an employee of Pittsburg Steel, LLC, suffered an injury at work on December 18, 2018. Less than three months later, he was term inated for an allegedly “pre

textual reason in retaliation for initiating the filing of a workers’ compensation claim. ” A C amp County jury agreed with Palmer , determined he was discharged because he had instituted “ a workers’ comp ensation claim in good fa ith , ” and awarded him $27,265.00 in lost wages. A dding prejudgment interest, the trial court entered a final judgment awarding Pa l mer a total of $30, 920.77. On appeal, Pittsburg Steel challenges the legal and factual suffi ciency of the jury’s findings. Because we determine that the jury’s verdict was supported by legally and factually sufficient evidence, we affirm the trial court’s judgment.
I. Standard of Review In resolving a legal sufficiency issue, an appellate cour t determines “whet her the evide nce at trial would enable reasonable and fair

- minded people to reach the verdict under review.” City of Keller v. Wilson , 168 S.W.3d 802, 827 (Tex. 2005); Basley v. Ad oni Holdings,
LLC , 373 S.W.3d 577, 582 ( Tex. App.

— Texarka na 2012, no pet.)

. “In looking at the evidence, we credit favorable evidence if a reasonable jury could and disregard contrary evidence unless a reasonable jury could not.” Petrohawk Props., L.P. v . Jones , 455 S.W.3d 753, 770 (Tex. App.

— Texarkana 2015, p et. dism’d) (citin g City of Kel le r , 168 S.W.3d at 827 ). As we have stated previously, The evidence is legally insufficient if (1) there is a complete absence of evidence of a vital fact; (2) the rules of law or o f evidence bar th e court from giving weight3

to the only evidence offered t o prove a vital fact; (3) there is no more than a mere scintilla of evidence offered to prove a vital fact; or (4) the opposite of the vital fac t is conclusively established by the e vi dence. Id. (ci ting Jelinek v. Casa s , 328 S.W.3d 526, 532 (Tex. 2010)). “More than a scintilla of evidence exists when the evidence reaches a level enabling reasonable and fair

- minded people to differ in their concl usions.” Id. (citing Merrell Dow Phar ms ., Inc. v. Havn er , 953 S.W.2d 706, 711 (Tex. 1997)). “Less than a scint illa of evidence exists when the evidence is ‘so weak as to do no more than create a mere surmise or suspicion’ of a fact.” King Ranch, Inc. v. Chapman , 118 S.W.3d 742, 751 (Tex. 20 03 ) (quoting Kind red v. Con/Chem, Inc

. , 650 S.W.2d 61, 63 (Tex. 1983)).
I n evaluating factual sufficiency, we “ consider

. . . all of the evidence, ” including any evidence contrary to the verdict. Mar. Overseas Corp. v. Ellis , 971 S.W.2d 402, 406

– 07 (Tex. 1998); Pla s - Tex, Inc. v. U.S. Steel Corp

. , 772 S.W.2d 442, 445 (Tex. 1989 ). The ju ry itself “ is the sole judge ” of witness credibility “ and the weight to be given their testimony

. ” McGalliard v. Kuhlmann , 722 S.W.2d 694, 696 (Tex. 1986)

. When a party without the bu rden of pr oof on an issue challenges the fact ual sufficiency of the evidence, the question on appeal is whether the evidence sufficiently supports the jury’s conclusions

. Gooch v. Am. Sling Co. , 902 S.W.2d 181, 184 (Tex. App.

— Fort Worth 1995, no wri t). A s long as there is enough evidence before the jury that re aso nable minds could differ on the meaning of the evidence or the inferences and conclusions to be drawn from the evidence, it will be deemed factually sufficient. We will only sustain a factua l sufficie ncy challenge and “set aside the ve rdict ‘if it is so c ontrary to the4

o verwhelming weight of the evidence as to be clearly wrong and unjust.’” Petrohawk Props.,
L.P. , 455 S.W.3d at 779 (quoting Cain v. Bain , 709 S.W.2d 175, 176 (Tex. 1986) (per curiam)).
II. Sufficient Evidence Supported the Retaliation F indi ng Pittsburg Steel argues that the evidence was legally and factually in sufficient to support the jury’s finding that it discharged Palmer because he filed a workers’ compensation cla im in good faith . We disagree. A. Relevant Law

“ The Texas Labor C ode states in pertinent part that ‘ [a] person may not discharge or in any other manner discriminate against an employee because the employ ee has

. . . filed a workers ’ compensation claim in good faith. ’ ” Kingsaire, Inc. v. Melendez , 477 S .W.3d 309, 312 (T ex. 2015) (alteration s in original) (quoting T EX
. L AB
. C ODE A NN
. § 451.001(1 ) ). “ An employer who violates this statute is subject to a retaliation claim, which constitut es ‘ an exception t o the traditional doctrine of “ employment at will ” found in T exas la w. ’ ” Id. (quo ting Cont’l Coffee Prods. Co. v. Cazarez , 937 S.W.2d 444, 453 (Tex. 1996 )). “T o prove a violation of Section 451.001, it is n ot necessary to show that a workers ’
compe nsation claim was the sole motivation for the termination. ” Echosta r Sate l lite L.L.C. v. Aguilar , 394 S.W.3d 276, 287 (Tex. App.

— El Paso 2012 , pet. denied ) (citing Cazarez , 937 S.W.2d at 45 0 ). Rather, an employee m ust “ prove a causal link between the fil ing of a workers ’ compensation claim and subsequent discharge. ” Met al Ind u s., Inc. of Cal

. v. Farley , 33 S.W.3d 83, 86 (Tex. App.

— Texarkana 2000 , no pet. ) (citing Hogue v. Blue Bell C reameries, L.P

. , 922
S.W .2d 566, 569 (Tex. App.

— Te xarkana 1996, wr it denied ) ). “ The Texas Supreme Court ha s5

established the standard of cau sation for this purpose: the employee ’ s protected conduct must be such that, without it, the employer ’ s prohi bited conduct would not hav e o ccurred when it did. ” Id. (citing Cazarez , 937 S.W.2d at 450). “ Thus, [Palmer] wa s required to prove that, but for h [is]
fili ng of a workers ’ compensation claim, [Pittsburg Steel] would not have fired h [ im] when it did. ” Id

. As we previously stated,
C ircumstantial evidence tha t may show this causal link includes (1) knowledge of the compensation claim by those maki ng the deci sion to terminate; (2) a negative attitude toward the employee ’ s injured conditio n; (3) failure to adhere to established compa ny policies; (4) discriminato ry treatment of the injured employee in comparison to sim ilarly situated employees; and (5 ) evid e nce that the stated reason for discharge was false. Id. (citing Cazarez , 937 S.W.2d at 451 )

. “[S] trong evidence showing the sta ted reason for discharge is f

alse is alone a sufficient basis from which to infer a c ausal link between an employee ’ s w orkers ’ com pensation claim and subsequent discharge. ” Id. at 87; se e Agu ilar , 394 S.W.3d at 287 ; City of Hidalgo v. Wisdo m , No. 13

- 00

- 20 3

- C V, 2001 WL 1002181, at *4 (Tex. App.

— Corpu s Christi

– Edinburg Aug. 31, 2001 , no pe t. ) ( not designated for p ublication ). 1
B. T he E vidence at Trial Wes Bak er, the founder and p resident of Pittsburg Steel, testified that Pittsburg Steel purchased wor ker s’ compensation insurance in 2014 or 2015 to cover its e mployees and th at Palmer started working for Pittsburg Steel in 2 016 in t he “s hear department

. ” Baker said that Palmer reported being injured on the job on December 21 , 2018

.

1 But “termination pursuant to the ‘[u]niform enforce men t of a reaso nable absence

- control [po licy] . . . does not constitute retaliatory dischar g e.’” M e l e ndez , 477 S.W.3d at 312 (alter atio ns in original) (quoting Cazarez , 9 37 S.W.2d at 451).6

P almer testified that he had no back problem s before his wor k

- related injury. When aske d to describe how the injury occurred, Palmer said, “ I wa s at t he pr ess brake and the forklift driver put my metal on the ground, a pallet, and I bent ove r and picked up probably about four or five sheets , . . . p robably 30 pound s a piece, and when I raised up, my back po pped.” Palmer testif i ed th at the noise was fo l lowed by pain in his lower back that radiated down his left leg. Palmer noti fied a supervis or, Jason Heintz, who helped him walk to the company offi ce . Palmer met with Baker’s wife, Tonya Baker, who was the v ice p reside nt of Pi ttsbu rg St eel. On Tonya ’ s instru ction, Palmer visited the doctor , where an x - ray revealed a bulging d isc. On Decemb er 21, Tonya submitted a report to the worke rs’ c o mpensation insurance carrier stating that Palmer “injured his back while . . . re moving m ateri al fr om rack to tab l e.” The insurance carrier thanked Tonya for the submission and said that a claim professional would review the report

. On Dec ember 26, Pittsb urg Steel received a workers ’ compensation work
status report stating tha t Palmer wa s allowed to return to work with r est rictions, including no kneeling, bending, pushing, p ulling, or twis ting. Baker sa id that it was Pittsb urg Steel ’ s “re sponsibility in leadership to teach all of the superviso rs to accommodate [ i njured] employees” to ensure t hat an employee was not asked t o perform tasks prohibited by their doctor after a n injury. As a result, he s aid , compa ny policy requir ed supervisors to instruct any employee they saw performing tasks beyond the ir r estricti ons to stop performing the task. Accordingly, Baker testi fie d t hat he was “very conf ident” that
Pa lmer’s supervisors, Heintz a nd Roger Smith , would have “done their bes t to accommodate [Palmer’s] restrictions and keep him at wo rk.”7

Palmer testif

ied that he discussed his work restrictions with Heintz , was placed “o n light duty , ” and was mo ved from the shear departme nt to “the mobile home pro duction departme nt.” Smith, the direct supervisor of the mobile home department, testif ied , “ I fee l like [the mobile home department is] just like the other department s, but t o t h em , because I use lighter st u ff and I don’t do as much as the big heavy stuff, I guess they consider [it] a light duty department.”
Palm e r said Pittsb urg Steel did not accommodate his restrictions. Palmer, who was six

foot three, ex plained that t he pa rts he worked o n came in “the standard barrels t hat you might bu rn trash and stuff in,” that each barrel housed anywhere from 1,000 t o 1,500 parts, and th at after the b arrel was half empty, he would have to “bend all the way over

. . . t o the bottom o f the ba rrel ” and “ co me back up” with “ four or five pa rts at a time ” “a ll day long.” The parts would then be placed in a machine, whe re they would be cut to t he customer’s specifications. According to Palmer, the “[p]ain was excr uciating.” Palmer testif ie d th at t her e was “[n]o way possible” “ to reach

. . . the bo ttom of [ the barrel ] without bending or stooping , ” which aggravated his bulgin g disc

. Palmer testified that he o ften complained to Smith “that the bending over i n [to] th e barrels was killing [him]” and th at he wa s not supposed to be b ending. According to Palmer, Smith said he would inform Heintz, but his work “ne ver changed” even t hough he complained “[u]n til the d ay [he] was fired.”
Smith rem embered Palmer complaining “ about grab bi ng parts out of the bar rel.” A s a result, Smith said he put something under the barrel to make it lean or “st arted making sure they put the parts in a t ub so [Palmer] could sit down and just reach for th e parts ,” but Pal mer testifi ed8

that part s were never brought to him in a tu b and we re alw ays in a barrel. Heintz admitted that Palmer’s work restrict ions showed that he was not supposed to bend, stoop, kneel , or squat and that, con tr ary to do ctors’ orders, he was still assigned tasks that required him to do so while working in t he mobi le home department. Heintz knew that Palmer was still required to bend to “pull the parts out of a tub” or barrel.
While w orking i n the mobile hom e d epartment, Palmer was receiving medical treatment. Palmer’s medica l service provid er sent bills to Pitt sbu rg Steel for Palmer’s medical treatment on January 1 0, February 7, and March 7 , 20 19

. Palmer was fired on March 15 , befor e a scheduled
MRI. H is w ri tten exit interview form reflected that Palme r was t erminated , but the comment

sec tion was left b lank.
A fte r his termination, the workers ’ compensation carrier asked Tonya to explain the reason for Palmer’s termination bec ause it “ might have e xpos ure to pay h im [temporary total disability] benefits

. . . dependi ng on the re ason for termination from em ployment

. ” Ton ya responded that “[Palmer] was terminated

. . . due to repeat failure to cut/punch parts right resultin g in e xcess s crap loss. ” S he continued, “ The in stance that resulted in termination was [ the] conti n ued production of 3,800 [wrong] parts .” Tonya said she did not have doc um ent ation “for every instance of this issue,” but attached a February 5, 2018, employee incident r ep or t , which was prior to P almer’s inju ry, stating that Palmer cut 750 piece s of metal too s hort while in the shear depart ment. 2 The incident report said Palm er received three days’ suspension and that a repeated mistake would “[r]esult in [ d ] ismissal.” To ny a added,

2 There was no written documentation of any mistake after Palmer’ s i njury.9

Additionally, we are awar e from interacti on in the co mmun ity that Mr. Palmer has back issues prior to his em ployment wi th Pittsburg S teel. Those is sues were not disclosed to us on employment but as we became aware of t hem [,] we wer e able to ac co mmodate it with the type of work we assigned him. T hat is the prima ry reason he was moved from the shear department o ver to the M obile Home par ts area. ( The parts there in the Mobile Home area typically are much lighter.) Palmer admitted that he had mi scut 750 pieces of metal well befor e his in jury . He was

aw are of company documentation that stated , “ T he procedure fo r verification of hole patterns
req uir e s the operator to check every 10 [] th part against his gauge to ensure that t he part he is making fits to the gaug e.” However, he de nied havi ng any back p roblems before his injury

. In spite of Ton ya ’ s letter justify ing Palmer’ s termination to the workers ’ c ompensation carrier, she testified at trial that she could not re call w he ther anyone from Pittsburg Steel had told her that Palmer had a bad back p rior to his injury. Although Baker claim ed they had moved Palmer “ to the mo bile home area some time wel l p rior to his reported acc ident because of constant complai nts he had about h is back , ” Heintz , who super vised Palmer, testified that he was
not aware t hat Palmer had a bad back before his on

- the

- job injury. As for t he alleged incident that occurred aft er Palm er’s injury, Palmer admitted that he had messed up 3,000 parts over t he course of three day s , but that the in cident had occur red in
Januar y 2019 and that he was assured he would not be fired

. Palmer explained, When I messed up the parts, [Heintz] ca me, [Smith] knew, and [Heintz] looked at the machine and said that [Travi s, Bak er’s son

- in

- law , ] ha d we lded the wro ng part on the mach ine, that I would not be punished or fired for the parts. He told the other superv isor to come down, which is R oy Jenni ngs , for me to show him the parts that I messed up so they could get rid of th e pa rts [,] and I would not be punished.10

According to Palm er, Heint z inspected the cutting machine and said Travis had welded the wrong part into the mac hine and that the inciden t w as n ot his fault. Palmer said that the miscut parts were placed into a rec ycling bin , which he b eliev ed was an effort to hide the mi stake f rom Baker

. Baker testified that t he incident “occurred immediately with term ination,” wh ich re sulted in the lack of paperwor k documenting the 3,000

- part loss

. Smith could not recall whe th er the loss ha ppened in Januar y o r March 2019 “because [they] didn ’t write nothing up at th e time,” but
he believed it occurred close to Palmer ’ s termin ation. Heintz testified th at he w as not aware of the exact date that the 3,000 parts we re alleged ly mis cut by Palmer over the course of three days, but said it wa s withi n the six months of Palmer’s termination

. He later said it was wit hin two to three days of his termin ation

. When as ked whether Pittsburg Steel “ would ha ve internal docume nta tion o f what pa rts [ Palmer had allegedly ] messed up ” in March 2019, Tonya said , “I would think so, yes , ” but no such documentation was ever produc ed. Accordi ng to Heintz, Smith supe rvised three or fo ur people in the mobile home depar tment and sh ould h ave disco v ered the thousand parts that were allegedly miscut on the fir st day and the second thousand allegedly miscut on the second day

. Heintz also said that S mith would have kn own about the miscut part s f irst, that concealing such a mistake woul d cau se Smith to be d isciplined, and that Smith was never disciplined for failing to supervi se Pa lmer’s alleged mistake. Palmer testified tha t neither Smith nor Hein t z w ere disciplined in connection11

with the in cid ent. As a result, Palmer t estified t hat he believe d h e was fi red because of his work injury and the workers’ compensation claim. 3
Ye t, wh en asked if Palmer ’ s workers’ compensation claim co ntributed to his te r m in ation , Baker testified that Pittsburg Steel “ [was no t] e ve n aw are that . . . it was still going on.” 4 Baker also said he did not believe Heintz was aware that Palmer’s claim “wa s stil l goi ng on” at the time
he was fired because Heintz would have gotte n ap proval from Baker to terminate if he was aware of it. T on ya h ad told the worker s ’ compen sation c arrier that she “did not realize [Palmer ’ s] claim was still open” in the same emai l that she used to notify them of Palmer’s termination , and Heintz also te s t i f

ied that he was unaware that the workers ’ compensa tion claim wa s s till open. 5
H owever, Tonya t estified that Palmer had to report to Heintz if he had to miss wor k for
any r eason, t hat Heintz would have known of Palmer’s March 7 visit to the doctor, an d t h a t such request for time off woul d have ale rted Heintz tha t the workers ’ compensation cla im was still
open. Tonya also said that the March 20 19 bill w ou ld have put someone on notic e that Pal mer ’s workers’ compensation claim was still open , and Heintz and S mith both testified that they we re

aware o f Palmer’s l igh t

- duty restri ctio ns when he was fired

. Palmer testified that Heintz knew w he n he missed work to go to doctor appointments , that he went t o the doctor on March 7, that he gave Heintz his work r est r i ction papers on his

3 Palmer testif

ied that, since his termination , he had applied for and received disability f or his back.

4 Heintz denied tha t P a lmer’s workers’ compensation claim contributed to his termination

.
5 Acc ordi ng to Tonya, no one at Pittsburg Steel treated Palmer different ly because he had fi led a workers’ compensation claim.12

re turn, and that Heintz kne w hi s workers ’ c ompensation claim was pending when he was fired on March 15. Baker confirmed that Palmer was able to perform the light dut y at the t ime of his termination and that he was not fired for la ck o f perf ormance. Smith said that “Palmer worked
g o od” and that the “onl y i ssue [they] had was the . . . bad

- punched part s.” When asked to state, in hi s own words, what happened on the day he was fired , Palmer sa id,
I cam e in to work one mor ning. I we nt t o my s tation.

. . . Smith said Jas on Heintz wanted t o talk to me . . . . [ Heintz ] sa id I ha ve to terminate you . I said w hy. He said those parts. I said the parts you s aid you was going to get rid of. That w asn ’ t my f

ault. He said yes. He said it ’ s b i gger than me . So I said you said you was going to ge t rid of them, I wasn ’ t going t o g et fired. And I exited the buildi ng after he told me it was bigger than him

. C. Analysis Pittsburg Steel argues that Palme r was fire d after he miscut pa rts for the se c o nd time. It contends th at, because Palm er was already warned that termination would re sult if he miscut parts again , his termination was not the result of r etaliation. The jur y rejected Pittsburg Steel’s

ar gument, an d we conclude that t he evidence s upp o r ted the jury’s finding s. Direct evid ence of retaliation is rarely available. Fo r t his r eason, i t was not necess ary f or Palmer “ to show that a workers ’ c ompensation claim was the sole motivation for the
ter mination. ” Aguila r , 394 S.W.3 d at 287

. In ste a d , Palmer had to “ prove a causal link b etween the filing of a workers ’ compensation cl aim a nd subsequent discharge. ” Fa rley , 33 S.W.3d
at 86

. Here, (1) kn owledge of Palmer’s workers’ compensation claim by th ose making the
ter minat ion decision, (2) a neg a t ive attitude toward his inj ured condition , (3) failure to adhere to
compa ny policy, (4 ) d iscriminatory trea tment of Pa lmer in comparison to similarly situated13

employees , and (5) evidence that the stated reason fo r dischar g e was false are all categorie s o f “[ c ] ircumstantial evidenc e that may show this causal link.” Id. As fo r the first c ate gory, the jur y hea rd Pittsbur g St eel’s argument that it was unaware of Palmer’s pending workers’ compensation claim but re jected it based on ample evidence indicat ing o therwise. Tonya stated in writing that she was unaware of the pending claim but ad mit ted that the bills received b y the company after Palmer’s March 7 doct or’s visit would have alerted Pittsburg Steel to the ongoing c l aim. Baker opined that Heintz m ust h ave also b een

unaware s ince he would ha ve sought Baker’s approval to f ire someone w ith a pending cl aim but failed to do so before firing Palmer. Yet, both Palmer and Tonya testified that Heintz knew of the c ontinuing workers’ compensation claim becau se h e had to a pprove Palmer ’s time o f f work , alert ing him to the claim. H eintz and Smi th also admitted that they were aware of Palmer’s light duty restrictions when he was fired. From this evidence, the jury could ha ve r e asona bly rejected Pittsburg Steel ’s a r gument that it did not know of Palmer’s pen ding workers’ compensation
clai m when he was fi red on March 15 , just eigh t day s after his last doctor’s visit

. Next, the second category requires analysis of whether Pitt sbur g Stee l had a negative attitude t owa r d Palmer’s back injury . Bake r claimed that P almer was moved to the mobile h ome departmen t b ecause he com plain ed of a bad back before his injury, but both Heintz and Smith testified that Palmer moved departments onl y af ter hi s on - the

-

job inj ury. Tonya wr o t e to the insurance carrier t o claim that Pal mer was known to have undisclos ed back probl ems before his
h ire , but she tes tified that no one from Pittsburg Steel had in formed her that Palmer had a bad back before the acc i dent . Hei ntz also sa id that he was u n aware of any preexisting back issues.14

Although Heint z knew of Palmer’s work restric tions, he adm itt ed that Palme r was required t o violate doctor order s when performing h is tasks in the mobile home department. As a r esult, Palmer te stifie d that , des pit e h is complaints, Pittsburg Steel did no t provide approp riate accommodations for his in jury. From t his evidence, a ratio nal jury co uld conclude that Pittsburg Steel had a n egative attitud e toward Palmer’s injured condit ion. The third catego ry requires an a l y sis of whether Pittsburg Steel failed to ad here to

co mpany policy

. Baker said that company polic y r equired super visor s to instru ct any employee they saw performing a task beyond their r estrictions to stop performing the tas k. The ev idenc e showed th at t h i s company policy was violated because (1) Smith remembered Palmer complaining about “ grabbing parts ou t o f the b ar rel , ” (2) Heintz admitte d that Palmer performed tasks beyond his rest rictions , and (3) Palmer testifie d that his work rest ric tions w ere not

a c commodated

. Baker also testified that Heintz should ha ve sought his approval before terminating an employee w ith a pending workers ’ compensation claim but failed to do so

. 6 From this evidence, the jury could have concluded that Pitts burg Steel fail ed t o adhere to company policy. As for the fourth category, Pittsburg Steel argues that t here was no evidence of discr i min atory treatment of Palmer in comparison to similarly situat ed employees

. Even so, Baker testified , “ I believe if [Heintz] had known tha t [ Palmer] was on work restrictions and that
t he injury was no t completely b ehind him, [Heintz] would have brought th at to my attention

ra ther than move forward with the terminati on. ” Accordingly, because Heintz testi fied that he

6 Als o , al tho ugh Tonya be l i e ved that th e loss of 3,000 parts over t he course of three days would have been documented, Pi ttsburg Steel produced no docum entation

.15

knew of the ongoi ng re str i c t ions, the jury could have found that Palmer was treat ed differently
t ha n similarly sit uated employees b ecaus e Baker was no t consu lted before Heintz fired an injured emplo yee. Also , there was evidence that , while P almer and Smith made th e same m ista ke, o n ly Palmer was disciplined. Although S mith w as a super visor, the inci dent could still i nform the jury’s concl usion on th e u ltimate issue. Palmer explained that Baker’s so n - in

- law had mis inst alled a part o n the machine and that, as a resu lt, he was e xpr e s s ly told that he would not be punished for miscutting 3,00 0 parts in January

. Palmer said that the parts were pl aced in the

re cycling bin, which he believed was Heintz and Smith’s effort to hide the inci dent from Baker. No paperwork resu lted from th e i n c i d ent , and Palmer testified that neither Smith nor H eintz were disciplined in connection with it

. Heintz said t hat Smith o nly superv ised three or four people in the mobile h ome department and should have discovered the fi rst thousand part s that were all e g e dly misc ut on the first day and the second tho usan d parts allegedly misc ut on the second day. Heintz also said that Smith would have know n a bout th e miscut parts first , that concealing

suc h a mistake would cause Smith to be disciplined, but that Smi th w a s never d isciplined for failing to supervise Palmer’s all eged mistake. P almer believed that he was termina ted for the incident months late r b ecause of his ongoing workers’ compens ation claim. As for the fifth category, some courts have concluded th at “ s t rong evi dence show ing the stated reason for di scharge is false is alone a sufficient basis from wh ich to i nfer a causal link between an em plo yee ’ s workers ’ compensation claim and subsequent discharge. ” Id. at 87 ; see Aguilar , 394 S.W.3d at 287 ; Wisd o m , 2 0 01 WL 1002181, at *4

. Tonya’s w ritten correspon dence16

to the workers’ compensation carrier stated that, in addition to the m iscut parts, P alm er failed to disclose a preexisting back injury. As recited above, that statement was never veri fied

. Palme r

a l s o testified that he was assured h e would not be d isciplin ed because of the 3,000 miscut part s in
Ja nuary, since the incident was not his fa ult

. Due to (1) the lack of documentation for such a larg e loss, (2) Smith’s testimony that he coul d not r ecall wh e t h er the loss happ en ed in January or March 2019 “becaus e [they] didn’t write nothing up at the time,” and (3) Heintz ’s testimon y that he was not aware of the exact da te that the 3,000 parts we re allegedly miscut , the jury could have believe d Palmer ’s v ers i o n of events.
T he evidence show e d that Palmer su ffered an injury at work, filed a workers’ compensation claim in good faith, and was place d o n doctor restrictions that were not completely
f ollowed despite Palmer’s complaints . After rece iving th ree med i c a l bills and Palmer’ s work restri c tion notice foll owing his March 7 visit , Pittsburg Steel f ired Palmer before a scheduled
MRI

. The jury wa s f

ree to weigh Palmer’s credibility against the cr edibility of Pittsburg Steel’s
witnesses and to reso lve the con f l i cti ng evidence. Viewing the evidence in the light most favorable to P almer, we conclud e that there was m ore than a scint illa of eviden ce to support the jury’s findings of retaliation. Even when viewing the evidence in a neutral light, w e fi nd that the j u ry’ s verdict wa s not so cont r ary to the overw helming weight of the evi dence as to be cl early wrong and unjust. As a resu lt, we find th at legally and factually sufficient evidence suppor ted the jury’s conclusion that Palmer was discharged bec ause he had i n st ituted a work ers’
compensa t ion claim in goo d faith. Consequently, w e overrule Pitts burg Steel’s first point of

error.17

I II . Suffici ent Evidence Supported th e Amount of Lost Wages Awa rded In its second point of error, Pittsburg Steel c hall enges th e a m o u nt of lost wage s awarded.

“ T he proper measur e of lost wages damages f or a violatio n of the Anti

- Retaliation Statute is t he amount the emp loyee would have earne d had [] he not been discha rged in violation of the
statute. ” Farley , 33 S.W.3 d a t 88 ( cit ing T E X
. L AB
. C ODE A N N . § 451.002( a ) ) ; see Hertz Eq uip. Rental Corp. v. Baro usse , 365 S.W .3d 46, 57 (Tex. App.

— Houston [1st Dis t.] 2011 , pet

. de nied ) (“ The correct mea sure of damages for lost wages is the amount of money the employee would have ea rned had he n o t been terminate d, less the s um he will earn af ter termination. ”).
Pa lmer ’ s and Tonya ’s testimony showed that Palmer was pa id $14.00 per ho ur and worked approxima tely forty

- five hours p er week. Palmer ’s testimony and his pay check stubs also showe d tha t a ny time over forty hou rs was compensat ed at the rate of $21.00 per hour. Palmer testified that , after his injury, he had applied to several p lac es to obtain work and “was tryi ng to get on anywhere

. ” He worked for a trash service for thr ee days bu t cou l d not continue bec au se o f his back. As a r esult, Palmer was see king forty

- one w eeks of lost wages from the time he was fired until h e was pl ace d o n disability in January 2020 , w hich he calculated to be $ 27,265.00, including overtime

. 7
On appe al, Pi tt sbu r g Steel argues (1) t hat Pal mer was fully disabled, (2) that there wer e no jobs available to accommodate a fu lly disabled person , and (3) that, as a result, Pa lmer should not hav e been entitled to any lost wages “ [a]fter he testified under o ath in his d epo s i t ion that there was no light duty job at Pittsburg he could have done.” Y et, the testimony a t tr ial showed

7 Pa lmer clar ified that he was not “ try ing to double

- dip and get lost wages . . . and [his] disability

. ”18

that Palmer was on light duty when he was fire d, was not fired becau se he was physically unable perform his jo b , and could hav e con tinued his e mpl o y m ent wit h the pro per accommodation s recommended by his d octors. T he evidence also show ed tha t Palmer did not apply for disability until January 2020. 8
Nex t, Pittsburg Steel complains that the evidence to support los t wages was fact ually insufficien t b e c a use “Palmer’s in consistent and se lf

- serving testimony i s not enough.” Yet,
To nya testified that Palmer made $14.00 per hour and worked forty

- five hours a w eek. This showed t hat Palmer received $560 .00 per week for his regular work week

. Palme r’s p ayc h e c k stubs, in addition to his testi mony, showed that he r eceived $21.00 for over time, which amounted
to $ 105 .00 per week. This fig ure, multiplied by the f ort y - one weeks , equale d the $27,265.00 sought. Als o, Palmer introd uced his paycheck stubs, w hich sh o w e d t hat he had made $ 4, 914 .00 for r egular earnings and $ 8 13 .75 in overtime from January 2, 2019 , to March 2 , 2019

. Palmer’s
average weekly sum from those two months of w ork , $715. 96 , multiplied by the forty

- one weeks he was seeking, was a bove wha t h e ha d a sked for. We find the eviden ce l egally and factu ally sufficient to support the amount of lost wages awarded. As a result, we overrule Pittsburg Steel’s la st point of error.

8 Pitt sburg S t e e l genera ll y cites to Section 18.091(a) of the Texas Civil Practice and Re medies Code, but makes no argument related to that s ection. S ee T EX
. C IV
. P RA C
. & R EM
. C ODE A NN . § 18 .091(a)

.19

IV. Conclusion We affirm the t rial court’s judgment.

Sc ott E. S teve ns C h ief Justice Date Submitted: N ovem ber 13 , 202 3 Date Decided: Dec ember 11 , 2023