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Click here for the full text of this decision FACTS:This is an action for a violation of the Anti-Retaliation Law. David Garza was a lineman working for Southwestern Bell Telephone Co. On Thursday, Oct. 10, while working with another lineman, Garza was hit by a bucket. Heated words were exchanged, and the other lineman complained to the “second line” supervisor. The supervisor decided that the two could not work together and ordered Garza and the other lineman to meet the company counselor. After meeting with the second line supervisor, Garza was sent to finish the job he had been working on, assisted by another employee. On Friday and Saturday, Garza’s “first line” supervisor continued to assign Garza other outside work because, he later testified, “[m]y boss [the second line supervisor] had not given me any other direction,” despite their conversation on Thursday. Meanwhile, the other lineman was given work cleaning out trucks. At trial the first line supervisor testified that on the day of the incident he recommended to the second line supervisor that Garza be disqualified from driving or working on outside jobs because “[h]e was either going to end up killing himself or killing his partner or injuring the public.” The following Monday, Garza complained of neck pains. His “first line” supervisor prepared a workers’ compensation injury report form and took Garza to a doctor, who prescribed medication for Garza’s muscle spasms. There was testimony from Wayne Rider, a superior in San Antonio, that the decision to disqualify Garza from driving or working outside, “was made on basically the 20th” and the next day, before Garza’s worker’s compensation claim of injury the following Monday, and “everything that happened after that was just window dressing.” The court notes that this testimony is “somewhat at odds” with other evidence, including several initial reports of the Thursday incident. The first hint in SWBT’s records that Garza would be more severely disciplined came in notations Rider added to the second line supervisor’s “flash report” several days after Garza’s compensation claim. On Nov. 7, Gonzalez sent a report to Rider that was “far different” from an earlier report. Gonzlez alleged that Garza had a history of safety problems and recommended that Garza be given 90 days to find an inside job with the company and that he be removed from his present job assignment. Rider approved the report on the same day. On Nov. 7, the same day Rider approved the supervisor’s second report, Garza applied for a transfer. The following day, the supervisors met with Garza to tell him that, because of his safety record and the Oct. 20 accident, he could no longer work as a lineman or drive a company vehicle. But the very next day, Robles signed off on Garza’s transfer application, giving him a job performance rating of “satisfactory” for safety. Robles testified that he simply copied the ratings from Garza’s last job performance review some months earlier. Amidst these events, and unrelated to them, Garza’s job and the other lineman’s job at SWBT’s Brownsville office were declared to be “surplus” and transferred to Harlingen. On Jan. 31, Garza was terminated. Garza sued SWBT. The jury found actual damages totaling $1,034,108 and assessed exemplary damages of $1,000,000. The trial court rendered judgment against SWBT on the verdict, plus prejudgment interest, for $2,170,841.64. The court of appeals affirmed. HOLDING:The court of appeals’ judgment is reversed insofar as it affirms the award of exemplary damages. The trial court inquired of the jury: “Did [SWBT] disqualify or discharge David Garza from his Outside Plant Technician (OSPT) position because he instituted or caused to be instituted a worker’s compensation claim in good faith?” The court rejects SWBT’s complaint of reversible error in the jury charge. SWBT complains that there was no evidence to support the jury’s finding of liability. SWBT contends that the evidence establishes that it would have disciplined Garza as it did even if he had not filed a compensation claim. The court has “little difficulty rejecting SWBT’s argument that the jury’s liability finding lacks support in the record.” SWBT argues that there was no evidence to support the jury’s finding of actual malice as a predicate to an award of punitive damages. The jury was asked and instructed as follows: “Do you find by clear and convincing evidence that the harm to David Garza resulted from actual malice on the part of [SWBT]?” “Clear and convincing evidence” means the measure or degree of proof that produces a firm belief or conviction of the truth of the allegations sought to be established.” “”Actual malice’ means ill will, spite, evil motive, or purpose to injure another.” Neither SWBT nor Garza objected to this question or these instructions. Both concede that proof of actual malice was required to recover punitive damages for a violation of the Anti-Retaliation Law, that actual malice was correctly defined, that proof was required to be by clear and convincing evidence, and that “clear and convincing evidence was correctly defined.” In assessing the evidence, the court assumes that the portions of the charge just quoted, because they were given without objection, correctly state the law. The court decides that, whenever the standard of proof at trial is elevated, the standard of appellate review must likewise be elevated. Because the “clear and convincing” standard of proof in this case is the same as in In Re: J.F.C., 96 S.W.3d 256 (Tex. 2002), the court follows the procedure outlined there for conducting a no-evidence review. Viewing all of this evidence in the light most favorable to the verdict, the court cannot conclude that a reasonable trier of fact could form a firm belief or conviction that SWBT acted toward Garza with ill will, spite, evil motive or purposeful injury. While there are some indications that it might have done so, there are a great many others that it did not. At most, the record reflects that SWBT mishandled the situation; it does not produce a reasonable conviction that SWBT intended to punish Garza without cause. The court concludes that there is no clear and convincing evidence of actual malice to support an award of punitive damages. OPINION:Hecht, J., delivered the opinion of the court, in which Jefferson, C.J., Owen, Smith, Wainwright, Brister and Medina, JJ., join. CONCURRENCE:O’Neill, J. “Because the Court usurps the factual sufficiency review power that our Constitution reserves to the courts of appeals, I cannot join its opinion. I agree, however, that the judgment awarding punitive damages should be reversed in this case. Under the standard announced in Continental Coffee Products Co. v. Cazarez, 937 S.W.2d 444, 453 (Tex. 1996), I would hold that Garza presented no evidence of actual malice apart from the statutory violation itself. Accordingly, I concur in the Court’s judgment but not its evidentiary analysis.”

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