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Click here for the full text of this decision FACTS:The appellants, Dillard Department Stores Inc. and Dillard’s Texas Operating Partnership d/b/a Dillard’s, appealed a jury verdict in favor of appellee, former Dillard’s sales associate Sabrina Hecht, on her wrongful termination suit. In her suit, Hecht asserted that she had been discriminated against because she had filed a workers’ compensation claim in violation of Texas Labor Code 451.001 or in the alternative, that she was discriminated against in retaliation for exercising her rights under the Family and Medical Leave Act of 1993. After a jury trial, Hecht was awarded back pay, mental anguish damages, medical care in the past and punitive damages. Dillard’s timely filed its appeal. HOLDING:Because the evidence to support the jury’s finding of malice for exemplary damages was legally insufficient, the court reverses that portion of the trial court’s judgment awarding punitive damages. The trial court’s judgment is modified to delete the award of exemplary damages and, as modified, is affirmed. On appeal, Dillard’s raises three issues: legal and factual sufficiency points and jury charge error. Before addressing the legal and factual sufficiency points, the court stated that it must consider Hecht’s objection that Dillard’s did not preserve its factual sufficiency point because it failed to file a motion for new trial. The court pointed out that a motion for new trial is required to complain of factual insufficiency of the evidence to support a jury finding. In this case, the court finds that Dillard’s did not file a motion for new trial and therefore holds that that Dillard’s has failed to preserve its factual sufficiency issues on appeal. As to the legal sufficiency issue, Dillard’s argues that the following evidence presented at trial showed that Dillard’s did not act with the required malice needed for the punitive damages award: 1. Dillard’s insured Hecht received medical attention when management was notified that she had suffered an injury; 2. when Hecht returned to work, Dillard’s placed her on what it considered to be the lightest duty available; 3. Dillard’s accommodated Hecht’s schedule so that she could attend her physical therapy sessions; 4. Dillard’s informed other associates to help Hecht and asked her to ask for help when necessary; and 5. Dillard’s never threatened to terminate Hecht. The court examines the evidence and holds that the evidence does not rise to the level of clear and convincing evidence of malice. Therefore, the court concludes, the grant of punitive damages to Hecht was in error. But the court next notes that because Hecht resigned from her position, her allegation against Dillard’s is one of constructive discharge. Constructive discharge occurs when an employer makes conditions so intolerable that an employee reasonably feels compelled to resign. Viewing the evidence in the light most favorable to the verdict, the court finds evidence of Dillard’s pervasive unwillingness to accommodate Hecht’s request for a light duty despite her complaints of not being able to perform all her job duties. Looking at the work conditions from a reasonable employee’s perspective, the court finds it possible that these conditions were so intolerable that an employee would have felt compelled to resign. Therefore the court overrules Dillard’s issue regarding the legal sufficiency of the evidence and holds that there is more than a scintilla of evidence on the record to support the jury’s finding that a reasonable person in the employee’s position would have felt compelled to resign. As to the jury charge issue, Dillard’s contends that the trial court submitted additional language with the instruction on 451.001, which contained a standard of causation different from that mandated by the Texas Supreme Court. But the court disagrees and finds that the instruction was in line with 451.001 and sufficiently apprised the jury of the correct causation standard. Therefore, the court overrules Dillard’s final issue. OPINION:Chew, J.; Barajas, C.J, McClure, and Chew, JJ.

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