SCM Management, Inc./Manuela Ortiz v. Ortiz, Manuela/SCM Management, Inc. ( 2002 )

                                                            COURT OF APPEALS

                                                    EIGHTH DISTRICT OF TEXAS

                                                               EL PASO, TEXAS

SCM MANAGEMENT, INC./MANUELA          )

ORTIZ,                                                                 )

                                                                              )            No.  08-00-00114-CV

Appellant/Cross-Appellant,            )

                                                                              )                 Appeal from the

v.                                                                           )

                                                                              )     210th District Court

MANUELA ORTIZ/SCM MANAGEMENT,       )

INC.,                                                                     )     of El Paso County, Texas

                                                                              )

Appellee/Cross-Appellee.              )     (TC# 98-4005)

                                                                              )

O P I N I O N

Appellant/Cross-Appellee SCM Management, Inc. (ASCM@) appeals from the final judgment for Appellee/Cross-Appellant Manuela Ortiz (AOrtiz@).  Ortiz cross-appeals the trial court=s modification of the final judgment. SCM raises five issues:

(1)        Evidence is legally and factually insufficient to find SCM violated Texas Worker=s Compensation Act when Ortiz was discharged;

(2)        the evidence is legally and factually insufficient to support the jury=s award of damages for past and future lost wages;

(3)        Ortiz=s failure to mitigate her damages prevent her recovery of damages for lost wages;

(4)        the evidence is legally and factually insufficient to support the jury=s award of damages for past mental anguish; and

(5)        the evidence is legally and factually insufficient to support the jury=s award of exemplary damages.

Ortiz raises one cross-issue:

(1)        The trial court erred in granting SCM=s motion for judgment notwithstanding the verdict and failing to award exemplary damages.

We affirm.

After Ortiz was discharged from SCM on January 13, 1998, she filed a discrimination complaint against SCM on February 3, 1998 and a worker=s compensation claim around April 1998. Ortiz filed suit against SCM on November 20, 1998 for wrongful discharge in violation of Texas Worker=s Compensation Act (AAct@). Ortiz specifically alleged in her petition that Fawn Shirley, her supervisor, terminated her in retaliation for intending to file a worker=s compensation claim.  Ortiz asserted she had notified Shirley that she had suffered an injury on the job and intended to file a claim for worker=s compensation.

Finding that SCM discharged Ortiz in violation of the Act and that it was done willfully and maliciously, the jury assessed damages at:

$25,000           Past lost wages and benefits

$112,500         Future lost wages and benefits

$25,000           Mental anguish

$200,000         Exemplary damages

SCM filed a motion for judgment notwithstanding the verdict, which the trial court granted in part.  In the final judgment, the trial court excluded the exemplary damages because no evidence supported the finding and awarded Ortiz $162,500 in actual damages plus court costs.

SUMMARY OF THE EVIDENCE

Vivian Fawn Shirley, residential vice president of SCM, testified that SCM was based in San Antonio, Texas and owned two apartment complexes in El Paso:  High Ridge and Chimneys.  Shirley had been with SCM since September 1, 1987, and she had the authority to hire and discharge employees as the top representative of SCM in El Paso.  As a part of her compensation, Shirley resided at High Ridge without rent.

SCM hired Ortiz on March 18, 1985 as a housekeeper, which duties involved manual labor and chemicals to clean and disinfect the apartments, offices, bathrooms, units, and other facilities.  Ortiz noticed around September 1997 that her hands, already deformed when she began working for SCM, began to cause her greater problems. Ortiz=s husband, Rudy, confirmed that she began complaining about her hands in the fall of 1997 and that he could not hold her hand. Ortiz attributed the cause of the injury to the cleaning chemicals, which got on her skin in spite of the rubber gloves she wore during cleaning.

Most people employed at High Ridge were aware Ortiz had problems with her hands.  Also, sometime after August 1997, Ortiz=s co-workers were looking at her hands, and they told her she could do nothing about them.^[1]  Although Shirley denied Ortiz or anyone informed her that Ortiz=s hands were causing her increasing problems in 1997, Shirley said she had always been aware of Ortiz=s condition for as long as she had known Ortiz. Sandra Dominguez, manager of High Ridge from August 1997 to January 1998, disagreed with Shirley=s disclaimer.  Dominguez and the maintenance supervisor, Rosalio Moya, had noticed Ortiz=s hands were getting worse, and Dominguez informed Shirley of the fact, because she thought Ortiz needed medical treatment. Ortiz also said Shirley definitely knew about her hands, because Shirley mentioned it when she went to Shirley=s apartment some time in the summer of 1997 about a delayed paycheck.  At that time, Shirley exclaimed that Ortiz=s fingers were Areally bad@ then stated the only thing Ortiz could do was to just quit.  Ortiz had reported the condition to Moya, who denied receiving a complaint from Ortiz.

SCM=s employee handbook mentioned it had worker=s compensation insurance and, without further elaboration, only directed the employee to report it to a supervisor. Shirley admitted that employees might not know about worker=s compensation but that she was familiar with the filing process and had filed claims for several SCM employees, including herself.  SCM kept track of employees who filed for worker=s compensation, which included Michael Caro, Rosalio Moya, and Leonor Estrada.  Caro had filed five claims from 1990 to 1994.  Rosalio Moya, a current SCM employee, had also filed five claims, variously for a cat-bite and getting hit on the head.  Leonor Estrada filed three claims, the second of which was for a knee injury.  Dominguez said she saw Estrada running after a child and walking normally but then Estrada began limping when she came into the office while on compensation. Shirley wanted Dominguez to document the incident and also plan on secretly videotaping Estrada.

Aggravated by Caro and Estrada taking advantage of the worker=s compensation system, Shirley expressed to Dominguez her determination to not let anyone else do the same.  Dominguez testified that Shirley feared Estrada was coaching Ortiz on how to file a worker=s claim, just as Caro had done for Estrada, and that Ortiz would be the next to file a claim.  Therefore, Shirley instructed Dominguez and Moya to fire Ortiz before she could file.  From that time, Moya began to scrutinize Ortiz=s work, harassing and picking on her. Dominguez however disagreed with Shirley, because she thought Ortiz was a good worker who was always on time and faithfully performed her duties.

Shirley denied deciding to or actually having terminated Ortiz=s employment with SCM on January 13, 1998. Instead, she said she enforced Dominguez=s and Moya=s decision, based on Ortiz=s poor performance at work.  Moya said Shirley did not tell him to warn Ortiz or fire her; instead, it was his and Dominguez=s decision.  In 1997, Ortiz received two written reprimands for improper job performances:  one from Moya on July 30, 1997 and a Alast chance@ warning on December 16, 1997, signed by Dominguez.^[2]  Moya said he noticed Ortiz=s work began to be sloppy in 1997 and he gave her several verbal warnings.  The apartments that Ortiz had cleaned were left dirty, and her co-workers and tenants were complaining.  After the verbal warnings, Moya sent Ortiz to retrain at Chimneys with Consuelo Marquez, a housekeeper at Chimneys. However, Nora Rivas, manager of Chimneys, complained that Ortiz improperly performed by not leaving windows or kitchens clean and failing to dust behind a refrigerator.  Victor Hernandez, assistant maintenance supervisor at High Ridge, said Ortiz=s work performance kept on decreasing in quality over the years until he had to reprimand her.  She would use the kitchen sink or the toilet as a bucket and use the same mop for the bathroom and kitchen floors.  Marquez said she saw Ortiz making several mistakes while she was being retrained. She found problems with the bathroom, toilet, refrigerators, kitchen sink, and windows on the doors that Ortiz had cleaned and had to redo them.

SCM=s employee handbook provided for yearly performance evaluations, but Ortiz only had two performance evaluations during her employment with SCM, which are undated. The performance evaluations did not indicate her job performance was unacceptable, which was a ground for termination.  Ortiz also received two written warnings on her job performance, one in 1993 and another in 1994, which was addressed to both Ortiz and another housekeeper. Nothing else in the record indicates she was performing poorly at work before 1997.

On January 13, 1998, Ortiz was working as usual when Moya told her to go to the office.  Ortiz first saw Dominguez, who said that Shirley wanted to fire her.  Since Shirley was not yet in the office, Ortiz waited to talk to her.  When she came, Shirley merely asked Ortiz what she had to say and stated everything was set already, so Ortiz should drop the keys and hit the road.  Dominguez corroborated Ortiz=s testimony, although Shirley, Moya, and Rivas all testified that Shirley merely asked Ortiz what she could do and also told Ortiz that she would reverse the others= decision if Ortiz would give her a reason.

Other SCM employees filed for worker=s compensation and remained employed at SCM. Moya himself had filed about five claims. Hernandez filed for worker=s compensation on February 9, 1998 and received benefits.  He was not treated badly by anyone working for SCM and was still employed there. Marquez also said she had filed for worker=s compensation and had actually been absent from work while Ortiz was being retrained in 1997.  No one expressed a negative attitude, thereatened, or told Marquez she could not file a claim.  She was still working for Chimneys as a housekeeper.

DISCUSSION

Standard of Review:  Legal and Factual Sufficiency of the Evidence

When reviewing a legal sufficiency challenge, we consider only the evidence and inferences, when viewed in their most favorable light, that tend to support the jury=s finding, and disregard all evidence and inferences to the contrary.  Davis v. City of San Antonio, 752 S.W.2d 518, 522 (Tex. 1988); Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex. 1987).  If such evidence amounts to more than a mere scintilla, or more than a basis for mere surmise or suspicion, then the legal sufficiency challenge fails.  America West Airlines, Inc. v. Tope, 935 S.W.2d 908, 912 (Tex.App.--El Paso 1996, no writ).

When addressing a challenge to the factual sufficiency of the evidence, the reviewing court looks at all the evidence to determine whether the finding is so against the great weight and preponderance of the evidence as to be manifestly unjust.  In re King=s Estate, 244 S.W.2d 660, 661 (Tex. 1951).  We do not substitute our judgment for that of the jury=s and will sustain the jury=s findings if any probative evidence supports the finding.  Galveston Co. Fair & Rodeo, Inc. v. Kauffman, 910 S.W.2d 129, 135 (Tex.App.--El Paso 1995, writ denied).  It is not our province to interfere with the jury=s resolution of the conflicts in the evidence or to weigh the credibility of the witnesses and their testimony.  Reynolds v. Kessler, 669 S.W.2d 801, 807 (Tex.App.--El Paso 1984, no writ).  Generally, a jury=s resolution of the conflicts in the evidence is conclusive.  Clark v. Nat=l Life & Accident Ins. Co., 200 S.W.2d 820, 822 (Tex. 1947).

Violation of the Act

SCM first challenges the evidence was legally and factually insufficient to find retaliatory discharge, because:  (1) Shirley did not know Ortiz had a work-related injury or a worker=s compensation claim; (2) SCM did not have a negative attitude toward Ortiz=s injury when she was allowed to work for SCM for nine years; and (3) Ortiz was discharged for poor work performance.

Texas Labor Code Section 451.001 prevents an employer from discharging or discriminating against an employee for:  (1) filing a worker=s compensation claim in good faith; (2) hiring a lawyer to represent the employee in a claim; (3) instituting or causing to be instituted in good faith a proceeding under Texas Labor Code ' 401.001 et seq.; or (4) testifying in a proceeding under Texas Labor Code ' 401.001 et seq.  Tex.Lab.Code Ann. ' 451.001 (Vernon 1996).  The purpose of the Act is to protect people entitled to receive benefits and to prevent employers from firing them for taking steps to collect the benefits.  Housing Auth. of the City of El Paso v. Guerra, 963 S.W.2d 946, 950 (Tex.App.--El Paso 1998, pet. denied).  The employee need not have actually filed a worker=s compensation claim to invoke the statutory protection.  Guerra, 963 S.W.2d at 950.  Taking steps to institute a compensation proceeding is sufficient. Id.  A>Informing one=s employer of an on‑the‑job injury sufficiently Ainstitutes@ a compensation proceeding within the meaning of the law.=@ Id., quoting Stephens v. Delhi Gas Pipeline Corp., 924 S.W.2d 765, 772 (Tex.App.--Texarkana 1996, writ denied).

An employee claiming wrongful termination must establish there was a causal link between the discharge and the filing of worker=s compensation claim.  Trevino v. Correctins Corp. of Am., 850 S.W.2d 806, 808 (Tex.App.--El Paso 1993, writ denied).  Although the filing of the claim need not be the sole cause of the discharge, the employee=s subjective belief alone will not establish the causal link.  Guerra, 963 S.W.2d at 950.  Once the employee establishes the causal link, by either direct or circumstantial evidence, the burden shifts to the employer to show the employee was discharged for a legitimate reason.  Guerra, 963 S.W.2d at 950; Heinsohn v. Trans-Con Adjustment Bureau, 939 S.W.2d 793, 794 (Tex.App.--Fort Worth 1997, writ denied).  If an employer knows an employee is injured, the employer may not frustrate the purposes of the worker=s compensation law by discharging the employee before the claim can be filed.  Heinsohn, 939 S.W.2d at 795; Mid-South Bottling Co. v. Cigainero, 799 S.W.2d 385, 389 (Tex.App.--Texarkana 1990, writ denied).  This Court has held that evidence is sufficient once it is shown that the worker=s compensation claim contributed to the employer=s decision to discharge the employee.  Guerra, 963 S.W.2d at 950.

It is undisputed that Ortiz told no one she intended to file a worker=s compensation claim and that she had always worked with her deformed hands. Ortiz however testified that the pain in her hands increased in 1997, and she talked about it to co-workers some time around or after August 1997, when Dominguez began working for SCM. Shirley was aware Ortiz had problems with her hands but disclaimed knowing the pain in Ortiz=s hands were increasing.  Ortiz however said that Shirley noted her hands were Areally bad@ in the summer of 1997 and recommended that Ortiz quit.  Ortiz claimed she reported the problem to Moya, and Dominguez said she and Moya had noticed it as well.  Although Moya denied Ortiz ever notified him of her hands, Dominguez said she told Shirley about Ortiz=s condition.  Dominguez further testified that Shirley was disturbed by other employees taking advantage of the worker=s compensation benefits and instructed Dominguez and Moya to discharge Ortiz before she could file a claim.  Shirley and Moya denied Shirley had ever issued such order and asserted Ortiz was fired for poor work performance. Moya, Rivas, Hernandez, and Marquez all said they found apartments dirty after Ortiz cleaned them and that she would use improper cleaning procedure.  Moya, Hernandez, and Marquez had all filed worker=s compensation claims and had never received negative treatment from SCM.

The evidence is both legally and factually sufficient. The jury was free to believe Ortiz=s testimony that she suffered a work-related injury when the pain in her hands started to increase from the chemicals she was using while employed by SCM.^[3]  The condition of Ortiz=s hands was generally known, and there is evidence that Shirley, SCM=s top representative in El Paso, was aware that the condition was worsening, in spite of her testimony to the contrary.  Although the testimony of Dominguez, Shirley, and Moya directly conflicted on SCM=s reason for discharging Ortiz, it was for the jury to resolve the conflicting testimony among Shirley, Moya, Ortiz, and Dominguez, and the verdict indicates they chose to resolve it in Ortiz=s favor, giving more credence to Dominguez=s testimony that Shirley wanted to discharge Ortiz before she could file for worker=s compensation.  A jury could have reasonably concluded from the evidence there was a violation of the Act.  The jury=s verdict is also not so against the preponderance of the evidence to make it manifestly unjust.  We overrule SCM=s first issue.

Damages for Past and Future Lost Wages

Issue Two has been waived, because it was not properly briefed. Rule 38.1(h) states that an appellant=s brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.  Tex.R.App.P. 38.1(h); Leyva v. Leyva, 960 S.W.2d 732, 734 (Tex.App.--El Paso 1997, no writ).  We overrule Issue Two.

In Issue Three, SCM contends that Ortiz=s failure to mitigate her damages by looking for employment precludes any award of damages for past and future lost wages.

A wrongfully discharged employee has a duty to mitigate damages by making a good faith effort to obtain and retain employment.  Gulf Consol. Int=l, Inc. v. Murphy, 658 S.W.2d 565, 566 (Tex. 1983)(Opin. on reh=g). Mitigation is a defensive issue upon which the employer bears the burden of proof in a wrongful termination case. Gulf Consol. Int=l, Inc., 658 S.W.2d at 566.  The adequacy of an employee=s efforts to mitigate and the reasonableness of an employee=s explanation for rejecting a job offer are fact questions properly left to the jury. Azar Nut Co. v. Caille, 720 S.W.2d 685, 687‑88 (Tex. App.‑‑El Paso 1986), affirmed, 734 S.W.2d 667 (Tex. 1987).  If a jury finds for the employee, the employer must demonstrate either that it established as a matter of law the employee=s failure to mitigate, or that the jury=s findings on this issue were so against the great weight and preponderance of the evidence as to be manifestly unjust. Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989).  Since it is undisputed Ortiz did not look for employment subsequent to her discharge, we must decide whether the jury could have found that Ortiz=s reason for not seeking work was reasonable. America West Airlines, Inc., 935 S.W.2d at 915.

Most employment is near-impossible without the usage of hands, and it seems reasonable that Ortiz thought she could no longer work from the pain in her hands and did not look for work.  Ortiz felt she could have continued to work for SCM, had medical treatment been available for her hands.  However, no one at SCM explained how to file a worker=s compensation claim, and she could not have afforded a doctor, because (1) she and her husband did not have insurance and (2) her termination plunged them into financial trouble.  At the time of the trial, she felt even surgery could not have helped, and she did not seek employment, because her hands were useless. Her hands were in such burning pain that she could do nothing with them nor sit in one place and work.  There was testimony that Ortiz could pick up a telephone or a spoon, count money, and clean her house, but she also said she could not iron, shuffle paper, or cook sometimes.

It was for the jury to weigh the evidence and resolve any conflicts, and the verdict shows they chose to give greater credence to Ortiz=s testimony that the injury in her hands reasonably prevented her from seeking employment.  The jury saw Ortiz=s hands and heard from her that she felt she could do nothing, was in pain, and did not wish to work because of her condition.  From the evidence, the jury could have reasonably reached its conclusion, nor is the evidence such that the verdict is manifestly unjust.  SCM=s third issue is overruled.

Damages for Mental Anguish

In Issue Four, SCM attacks the factual sufficiency of the damages for mental anguish. 

To recover damages for mental anguish, a plaintiff must present direct evidence of the nature, duration, and severity of the mental anguish, thus establishing a substantial disruption in the plaintiff=s daily routine, or the evidence of a high degree of mental pain and distress that is more than mere worry, anxiety, vexation, embarrassment, or anger.  Latham v. Castillo, 972 S.W.2d 66, 70 (Tex. 1998). The amount of damages awarded also must be fair and reasonable after a meaningful evidentiary review.  Saenz v. Fid. & Guar. Ins. Underwriters, 925 S.W.2d 607, 614 (Tex. 1996).  Intentional or malicious conduct may be a significant factor in determining whether mental anguish damages are proper.  City of Tyler v. Likes, 962 S.W.2d 489, 495-96 (Tex. 1997). 

The definition of mental anguish is not only Aunwieldy@ but also demands that the reviewing court quantify evidence to fit this model of muddled judicial ambiguity.  This Court has attempted to clarify and give some guidance to the matter in the past by requiring that the evidence shows the plaintiff=s mental anguish is such that it incapacitates him from dealing with certain every day activities.  See Ortiz v. Furr=s Supermarkets, 26 S.W.3d 646, 653 (Tex.App.--El Paso 2000, no pet.); Worsham Steel Co. v. Arias, 831 S.W.2d 81, 86 (Tex.App.--El Paso 1992, no writ).  Mental anguish encompasses Aa mental sensation of pain resulting from >such painful emotions as grief, severe disappointment, indignation, wounded pride, shame, despair or public humiliation or a combination of any of these.=@  Ortiz, 26 S.W.3d at 653, quoting Wal-Mart Stores, Inc. v. Odem, 929 S.W.2d 513, 528 (Tex.App.--San Antonio 1996, writ denied).  The emotional pain may manifest in such a way to prevent the plaintiff from eating, sleeping, working, socially interacting, or carrying on other activities which the plaintiff performed daily before the date of the injury.  Ortiz, 26 S.W.3d at 653. 

Ortiz and her husband Rudy testified on Ortiz=s mental condition and behavior after her discharge.  Rudy said after Ortiz arrived home crying from work after she was terminated, that she was unable to do anything for four months:

Q:        Do you remember that day that Nellie [Ortiz] came home from work and she was fired?

A: Yeah, it was Tuesday around -- she came home around 11:30.  It was real windy and cold.  And that time, I was off.  It was my day off.

And then I opened the door, and she was -- she was trying to open the door, also, and -- but I heard, you know.  And then she was -- I opened the door, and she was there, and she was so depressed and crying and in the cold weather, you know.  She was by -- she was getting home by bus.

And then at that time, I did have a car, but I didn=t have a driver=s license, so I was, you know, afraid to -- to drive all the way from Lincoln to Viscount.  So I didn=t know that -- that it was going to happen.

Q:        And when you saw her at that time, did you talk to her?  Did she talk to you about it and tell you what happened?

A:         Yeah. She -- the only thing that she told me that she was fired.  And then the words her employer used firing her.  She told me that Ms. Fawn told her that just drop the keys and hit the road. Hit the Viscount.

                                                             .                .               .

Q:        Okay. How was she, Rudy, those next few weeks, maybe a month, a month after she was terminated?  How was she to be around at the house?

A:         Well, she was very depressed.  She always crying all the time.  And then the only thing I can do for her, you know, is to calm down, tell her to calm down, you know.  And at that moment, we don=t know what to do.  We don=t know where to run, because I don=t know anything about laws over here.  So I told her to calm down.  And, you know, she hardly ate.  She hardly sleep also.  She got nightmares.

Q:        How long did that last?  How many months did it last?

A:         Well, to be exact, it was about -- about four to five months that I -- that I -- I handled the situation, because I know it was bad.  And besides that, she -- she been telling me that her hands was real burning and pain, such a pain.  And then she hardly do some things around the house also.  And I help her, you know, when it=s in my hand, you know.

Ortiz also testified that she was incapacitated for about two months from worry and depression:

Q:        How did you handle being fired?  What was it like for you in the weeks following your termination?

A:         What did I did at home when I was already terminated?

Q:        Yes.

A:         Oh, I was real -- I couldn=t handle my bills, nothing, my credit cards, everything.  I just lost everything.  I didn=t know what to do for a couple of months.  My husband was just working four hours.  We couldn=t make it.

Q:        And how did that feel for you?

A:         Terrible.  I went down, completely down.

Q:        Okay. Can you explain that a little bit? Were you having problems eating or sleeping?

A:         Yeah, I had problems eating and sleeping.  I was real depressed.  I couldn=t make it.  I didn=t know what to do those months.

There is more than a scintilla of evidence to uphold the jury=s verdict.  Ortiz suffered a substantial disruption in her daily routine:  she was depressed (AI just lost everything.@), suffered sleeplessness and nightmares, and was unable to eat or do anything around the house from two to four months after her discharge.  Here, the testimony established the disruption was caused directly by the loss of her job and subsequent mental pain.  Compare, e.g., Ortiz, 26 S.W.3d at 653-54 (Plaintiff testified he suffered emotional pain and was divorced from his wife, but he did not say the mental pain caused him to be incapable of daily activities and also said his relationships were normal and the divorce was not due to his termination from Furr=s.).

The weight of the evidence is also not so overwhelming as to make the verdict contrary or manifestly unjust, as there was direct evidence of the the nature, duration, and severity of Ortiz=s mental anguish, thus establishing substantial disruption in her daily life.

The evidence is legally and factually sufficient to prove Ortiz had compensable mental anguish.  We also hold the amount of damages was fair and reasonable in the face of the evidence of Ortiz=s mental anguish and the disruption to her daily life caused by it.  Issue Four is overruled.

Exemplary Damages

In Cross-Issue One, Ortiz alleges that the evidence was sufficient to sustain the jury=s award of exemplary damages of $200,000.  SCM contends in Issue Five that the evidence was both legally and factually insufficient to uphold the jury=s verdict on exemplary damages.

A judgment notwithstanding the verdict is reviewable under a Ano evidence@ standard.  Williams v. City of Midland, 932 S.W.2d 679, 682 (Tex.App.--El Paso 1996, no writ).  We view the evidence in the light most favorable to the jury=s finding, considering only the evidence and inferences that support the jury=s finding, and will affirm the judgment if there is no evidence to support it.  Williams, 932 S.W.2d at 682. If there is more than a scintilla of competent evidence to support the jury=s finding, the judgment notwithstanding the verdict should be reversed.  Williams, 932 S.W.2d at 682.

To recover exemplary damages in a suit alleging violation of Texas Labor Code Section 451.001, a plaintiff must prove actual malice. Continental Coffee Prod. Co. v. Cazarez, 937 S.W.2d 444, 454 (Tex. 1996).  Actual malice is shown by evidence of ill-will, spite, or a specific intent to cause injury to the employee.  Continental Coffee Prod. Co., 937 S.W.2d at 454.  Exemplary damages is most appropriate for egregious violations of the statute.  Id. The fact that an act is unlawful is not a ground for an award of exemplary damages.  Id.  Acts warranting exemplary damages are  Awanton and malicious . . . or, as sometimes stated, somewhat . . . criminal or wanton.@  Id.

Shirley knew Ortiz=s hands were deformed and expressed to Ortiz that her hands were Areally bad.@  Dominguez testified that Shirley knew Ortiz=s hands had gotten worse and wanted to circumvent Ortiz filing a worker=s compensation claim by terminating her employment, before Estrada could show Ortiz how to file a claim.  Ortiz affirmed that Shirley advised her the only thing she could do for her bad hands was to quit. Shirley and current SCM employee Moya denied all aspects of Dominguez and Ortiz=s testimony. 

There is less than a scintilla of evidence that Shirley had the specific intent to harm Ortiz when she fired her.  Even considering the evidence in the light supporting the jury=s finding, we infer that Shirley discharged Ortiz to prevent any more expenses resulting from an employee filing a worker=s compensation claim, rather than from any ill-will, spite, or intent to harm Ortiz specifically.  Since the evidence does not support finding of malice, Ortiz=s Cross-Issue One is overruled and SCM=s fifth issue sustained.

The judgment of the trial court is affirmed.

August 22, 2002

DAVID WELLINGTON CHEW, Justice

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

(Do Not Publish)

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^[1] The date is not part of the testimony; however, Ortiz said this happened after Sandra Dominguez, began working there. SCM hired Dominguez in August 1997.

^[2] Dominguez protested that she had not wanted to sign the reprimand but Shirley first typed up the document then forced her into signing it.

^[3] Ortiz suffered an occupational injury, recognized as a theory of recovery in worker=s compensation claims.  Chavis v. Dir., State Worker=s Comp. Div., 924 S.W.2d 439, 443 (Tex.App.BBeaumont 1996, no writ).  An occupational disease:  (1) arises from a gradual and slow onset, not traceable to a definite time, place, and cause; or (2) arises from repeated physical exposure or repeated physical traumas.  Schaefer v. TEIA, 612 S.W.2d 199, 202 (Tex. 1980). Occupational diseases result from a gradual exposure or cumulative development over time, or results from repetitious physical activity.  Cearley v. Royal Globe Ins. Co., 632 S.W.2d 942, 946 (Tex.App.‑‑Fort Worth 1982, no writ).  The meaning of Ainjury@ includes the aggravation of pre‑existing conditions or injuries.  Cooper v. St. Paul Fire & Marine Ins. Co., 985 S.W.2d 614, 618 (Tex.App.--Amarillo 1999, no pet.).