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De Leon v. Red Wing Brands of America, Inc.

Court of Appeals of Texas, Fifth District, Dallas

August 28, 2017


         On Appeal from the 162nd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-13-08768-I

          Before Justices Bridges, Myers, and Brown.



         Juan Garza de Leon sued Red Wing Brands of America, Inc., his former employer, for wrongfully discharging him in retaliation for filing a workers' compensation claim and for breach of contract. Following a jury trial, Garza appeals a take-nothing judgment in Red Wing's favor. In five issues, he contends (1) the trial court erred in refusing to instruct the jury on actual, implied, or apparent authority; (2) the trial court erred in excluding evidence supporting his damage model; (3) the trial court erred in granting Red Wing's motion to exclude illegally obtained evidence; (4) the jury's verdict on his retaliation claim was against the great weight and preponderance of the evidence; and (5) the trial court erred by not granting a new trial due to Red Wing's improper jury argument. We affirm.


         Red Wing sells shoes, both in retail stores and via trucks that serve as mobile shoe stores at work sites. In January 2013, Red Wing hired Garza as a sales associate in its Dallas store at $12 per hour. Garza's duties included assisting the senior mobile sales representative. On March 14, 2013, Garza injured his back on the job. He missed a few days of work and returned to work on light duty. Two weeks after the injury, Red Wing terminated Garza's employment. Regional Operations Manager Gregory Bell told Garza he was terminated because of vulgar language.

         After he was fired, Garza sued Red Wing. He alleged Red Wing discharged him in retaliation for filing a workers' compensation claim in good faith. See Tex. Lab. Code Ann. § 451.001 (West 2015). Garza also alleged Red Wing breached a contract between them in two respects: (1) Red Wing promoted him and agreed to increase his pay to $15 per hour, but he was never paid the increased rate, and (2) Red Wing failed to pay him sales commissions he was owed. At trial, Red Wing stipulated that Garza sustained an injury in the course and scope of his employment and that he instituted a workers' compensation claim in good faith. Garza and Red Wing presented conflicting versions of the circumstances surrounding Garza's employment and termination.

         Garza testified that when he started working for Red Wing his pay was $12 per hour plus commissions. Garza stated that the store manager, David Burris, told him the commissions varied depending on the type of shoe and could be as much as 10%. About two weeks after Garza started the job, the position of senior mobile sales representative became available and Garza applied for it. The position paid $15 per hour. Garza testified he believed he was promoted to the senior mobile sales position. He indicated both Burris and Bell told him his position had changed. They told him he was the best candidate for the job. Garza testified he started doing the job of senior mobile sales representative, but Red Wing never paid him at the increased rate of $15 per hour.

         Garza testified that after he was injured, he returned to work on light duty, which included training for the mobile sales representative position on the store computer. One day, he left his email open on the computer and stepped away. When he returned to the computer, he found that Burris's email was open and saw his own name. Garza saw an email written by Burris in which Burris stated he did not believe there was really an injury. Garza printed some of the emails. Bell later talked to Garza about a disciplinary action based on the emails.

         On March 27, 2013, Garza met with Bell and Michele Lommel, a regional director for Red Wing, at a restaurant near the store. Garza said the meeting was about his injury. Lommel indicated management had posted Garza's job position because they needed a healthy work pool. On cross-examination, Garza testified he remembered Lommel speaking with him about getting paperwork related to his medical restrictions turned in on time and about making sure he arrived at job sites on time. After the meeting, Garza returned to the store, but told Bell or Burris his back was hurting again and left to see a doctor. Garza denied making any statements as he walked out the door. The next morning when he returned to work, he met with Bell and Burris. They had been informed Garza made a statement the day before. Garza testified he was not told what the statement was. Bell told Garza his employment was terminated immediately because of vulgar language. Garza denied using any vulgar words.

         Bell testified for Red Wing. He hired Garza as a full-time retail associate. Garza's duties included being a backup driver for the mobile truck, which meant he would sometimes drive the truck on his own. When the senior mobile salesperson resigned, Bell encouraged Garza to apply for the position and Garza did. But, according to Bell, Garza later told him he did not want to be considered for the new position, and Red Wing hired someone else. Bell testified he never promoted Garza to senior mobile sales representative and never told him he was getting a pay raise. Bell also testified that employees who work on the truck are paid a flat 3% commission on items sold off the truck and he never promised Garza that he would make more than a 3% commission.

         Bell testified that on the day after Garza's injury, Red Wing posted a job opening for a full-time sales associate/backup driver. Bell testified he requested the posting a couple of days before Garza injured himself and it was not an attempt to replace Garza. Garza did not want to work on the truck and Bell's intent was to get him back in the store where he wanted to work. Further, Bell testified, "The store was outgrowing us very quickly."

         Bell also testified about disciplinary issues with Garza. Garza showed up late for a few "truck runs." Bell spoke to Garza, but in Bell's view, Garza did not "accept accountability" for being late. Bell further testified that Garza gained access to Burris's personal email and printed out some emails. Garza apologized to Bell, said he destroyed the copies, and told him it happened by mistake, explaining he thought it was his email. Bell doubted Garza's explanation because although Garza had access to two store computers, he could not have used them to access his personal email and Garza did not have a Red Wing email address.

         Bell further testified about the meeting he had with Garza and Lommel, who was Bell's immediate supervisor. Bell testified Garza again was not accountable for his actions. He became aggravated, threatened legal action, and walked out of the meeting. Back at the store, Garza told him he needed to leave because his back was bothering him. Bell told him to go back to the doctor. Bell learned from Burris that as Garza was leaving the store, coworker Amelia Sanchez heard Garza make a comment that upset her. She was asked to write down what Garza said and she did so. Sanchez's note, dated March 27, 2013, was admitted into evidence. In it, she wrote Garza's comment, which was in Spanish. She also provided an English translation of the comment, which was to "kiss his penis." Sanchez felt uncomfortable hearing the comment and was embarrassed to have to repeat it to Bell and Burris. After that, Lommel made the decision to terminate Garza's employment. Bell testified Lommel felt Garza's behavior was not conducive to a productive work environment and was concerned with how Sanchez would feel if she had to continue to work with Garza. ...

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