Corral, Elvia v. Levi Strauss & Company

Becker v. State COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

)

ELVIA CORRAL,

) No. 08-01-00506-CV )

Appellant,

) Appeal from )

v.

) County Court at Law No. 4 )

LEVI STRAUSS & COMPANY,

) of El Paso County, Texas )

Appellee.

) (TC# 99-1678)

MEMORANDUM OPINION  

Elvia Corral appeals from a take nothing judgment entered in favor of her former employer Levi Strauss & Company. We affirm.

FACTUAL SUMMARY

Levi Strauss has a policy which provides employees with twelve months of medical leave for those who are medically unable to work. If an employee remains unable to work after the twelve-month period, he or she is terminated from employment. On September 17, 1997, Levi Strauss discharged Corral from employment as a sewing machine operator because she had been absent for approximately twenty-six months due to an on-the-job injury and she could not return to work even with reasonable accommodation.

Corral had been employed as a sewing machine operator for Levi Strauss since 1985. She performed the hang pocket sewing operation which required repetitive movements. In 1988, Corral developed carpal tunnel syndrome in her right hand and she had surgery as a result. She injured her left hand in 1994 but she did not have surgery for that injury. In June of 1996, Corral developed swelling in her right wrist. Corral also had other physical ailments, including high blood pressure, cervical sprain, thoracic sprain, lumbosacral sprain, internal derangement of the right knee, and rotator cuff bursitis of her right shoulder. Three different physicians treated Corral for her work-related injuries: Dr. Jeffrey Keim, Dr. Joseph Neustein, and Dr. Arthur Bieganowski. Dr. Keim and Dr. Bieganowski treated the hand injuries while Dr. Neustein addressed the injuries to her knee, back, and shoulders.

Dr. Bieganowski released Corral to return to work in April of 1997, but with physical restrictions. Dr. Keim also released her to work with physical restrictions. The Return to Work Committee ⁽¹⁾ returned Corral to work in the "hang pocket" operation and accommodated her physical restrictions by placing her on a reduced production quota. She was expected to be back at 100 percent production after five weeks. Corral, however, had substantial difficulty meeting the reduced production quota to the point that she produced no more than 80 percent of her quota after three months back at work. Corral complained to her supervisor that the terminal which recorded her production was inaccurately measuring her work. Inspection of the terminal revealed no defects and Corral's supervisor verified the results by manually counting her production. Corral continued to fall short of her quota even after a new terminal was installed. Other operators who used the new terminal did not report any problems.

On July 14, 1997, Corral became so upset about her reduced production and perceived problems with the terminal that her blood pressure became dangerously elevated at 200/90. This type of hypertensive crisis put Corral at risk of having a stroke so the company nurse recommended that Corral see her doctor immediately. Corral's family picked her up from work and took her to Dr. Natalie Bornstein who had been treating Corral's pre-existing problems with high blood pressure. Because Corral's frustration with her inability to meet her production quota had precipitated the dangerous increase in blood pressure, Levi Strauss would not let Corral return to work until Dr. Bornstein released her. Additionally, Levi Strauss questioned whether Corral could physically perform the job given her inability to return to 100 percent production.

Over the next several months, Corral's doctors provided conflicting reports pertaining to her ability to return to work and the restrictions to be placed on her. On August 5, 1997, Dr. Keim released Corral to return to work but imposed a new physical restriction by precluding Corral from pushing more than twenty pounds at work. Teresa Gallardo, the company nurse and also a member of the Return to Work Committee, believed Corral was not medically able to return to work if she could not push a cart weighing more than twenty pounds because the job required it. On August 28, 1997, Dr. Keim further restricted Corral by requiring her to push or pull no more than ten pounds. Dr. Keim kept these restrictions in place with his note of September 23, 1997. Two days later, Dr. Neustein released Corral to return to work in the hang pocket operation on a limited basis, but unlike Dr. Keim, he did not specify any restrictions. Faced with these conflicting statements, Levi Strauss did not return Corral to work.

In reports dated October 14, 1997 and December 17, 1997, Dr. Keim stated that Corral could not return to work. In his reports dated January 14, 1998 and February 11, 1998, Dr. Keim noted that Corral needed retraining or retirement. He did not indicate she could return to work until May 5, 1998. At that point, he recommended a "re-entry program" but did not specify any restrictions. Three days later, on May 8, 1998, Dr. Neustein opined that Corral could return to work "as per F.C.E.." ⁽²⁾ On June 5, 1998, Dr. Keim indicated that he would permit Corral to return to work in a re-entry program provided she not lift more than ten pounds. Levi Strauss did not return Corral to work because it could not accommodate this restriction. Given the conflicting reports, Levi Strauss asked both Dr. Keim and Dr. Neustein for clarification. Although Corral had been on medical leave for more than twelve months, the company extended her medical leave while it sought this information.

Nati Reyes, the Prevention, Safety and Health Process Leader at Levi Strauss, wrote to Dr. Neustein and asked whether his May 8, 1998 note referred to the F.C.E. dated February 11, 1997, and if so, whether he believed the F.C.E. to still be valid given the length of time which had passed. Reyes also wrote to Dr. Keim asking what medical improvements Corral had made since Dr. Keim had previously concluded that Corral needed retraining or retirement. Neither doctor immediately replied so Reyes wrote them again the following month. Dr. Keim responded by preparing a Physician Restriction Form on July 14 in which he indicated that Corral should never perform overhead or floor level lifting and should only occasionally push ten pounds or pull five pounds. Dr. Keim also concluded that Corral should not squat, kneel, or climb, and she should not perform movements which required overhead, backward, or sideways reaching. Dr. Neustein did not respond to the request for additional information until August 19, 1998 when his office faxed to Levi Strauss a letter dated July 8, 1998. He believed that the F.C.E. dated February 11, 1997 was still valid, and he was of the opinion that Corral could return to full-time work provided she could abide by the F.C.E.'s stated restrictions. Unlike Dr. Keim, he found that Corral had no difficulty squatting, kneeling, or climbing, and she could perform overhead, backward, and sideways reaching movements. Reyes wrote to Dr. Neustein once again and asked whether he would clarify his opinion in light of the restrictions placed on Corral by Dr. Keim. On September 8, 1998, Dr. Neustein sent a letter to Levi Strauss indicating that Corral could return to full-time work and she could attempt overtime work on a trial basis. He required her to use splints on a permanent basis and she should engage in overhead use of her arms only on an occasional basis.

In order to resolve the conflicting medical opinions expressed by Corral's doctors, Levi Strauss asked Corral whether she would submit to an independent medical examination. Corral initially refused but eventually agreed to be examined by Dr. Brian August. Both Levi Strauss and Corral agreed to be bound by the doctor's findings and Levi Strauss agreed to make every effort to accommodate the restrictions specified by the independent doctor.

Dr. August examined Corral on May 12, 1999 and referred her for a functional capacity evaluation which was completed on July 13, 1999. The functional capacity evaluation was delayed because Corral's blood pressure had been elevated at the time of the original evaluation. Dr. August completed the Physician Restriction Form on August 26, 1999. He concluded that Corral could function in a sedentary level of work activities. He found that she should be able to lift, push, or pull ten pounds on a frequent basis, and could perform squatting and bending activities. He would also restrict her from performing any overhead activities on the right side. Dr. August also concluded that Corral should only occasionally perform fine manipulation, repetitive pinching, and repetitive gripping.

On September 9, 1999, members of the Return to Work Committee, including a union representative, met and discussed whether any of the company's sewing operations could be modified to meet Corral's restrictions. The Committee particularly considered whether Corral could perform the "Serge Back Panels" operation and concluded that she could not perform the job with the restrictions imposed on her by Dr. August. Pursuant to its medical leave policy, Levi Strauss terminated Corral on September 17, 1999 because she had been on medical leave for more than one year.

Corral filed a retaliatory discharge claim against Levi Strauss pursuant to Section 451.001 of the Texas Labor Code. ⁽³⁾ A jury determined that Corral had not proven that Levi Strauss terminated her because she had filed workers' compensation claims. Consequently, the trial court entered a take nothing judgment in favor of Levi Strauss.

RETALIATORY DISCHARGE AS A MATTER OF LAW

In Issue One, Corral challenges the legal sufficiency of the evidence supporting the jury's negative answer to Question No. 1, which asked:

Did LEVI STRAUSS & CO. discharge and/or discriminate against ELVIA CORRAL because she filed a workers' compensation claim in good faith, or hired a lawyer to represent her in a workers' compensation claim, or instituted or caused to be instituted a workers' compensation claim in good faith?

There may be more than one cause for an employment decision. An employer does not discharge an employee for filing a workers' compensation claim in good faith, hiring a lawyer to represent her in a workers' compensation claim, or instituting or causing to be instituted a workers' compensation claim in good faith, if the employer would have discharged the employee when it did even if the employee had not filed a workers' compensation claim in good faith, hired a lawyer to represent her in a workers' compensation claim, or instituted or caused to be instituted a workers' compensation claim in good faith.

Relevant Substantive Law

Corral asserts that she established as a matter of law that Levis Strauss discharged her or otherwise discriminated against her in violation of Chapter 451 of the Texas Labor Code. Section 451.001 provides that:

A person may not discharge or in any manner discriminate against an employee because the employee has:

(1) filed a worker's compensation claim in good faith;

(2) hired a lawyer to represent the employee in a claim;

(3) instituted or caused to be instituted in good faith a proceeding under Subtitle A; or

(4) testified or is about to testify in a proceeding under Subtitle A.

Tex.Lab.Code Ann. § 451.001.

Section 451.001 is a statutory exception to the Texas common-law doctrine of employment-at-will. Lozoya v. Air Systems Components, Inc., 81 S.W.3d 344, 347 (Tex.App.--El Paso 2002, no pet.); Jenkins v. Guardian Industries Corp., 16 S.W.3d 431, 435 (Tex.App.--Waco 2000, pet. denied). The purpose of this statute is to protect persons entitled to benefits under the Workers' Compensation Act and to prevent them from being discharged for filing claims to collect those benefits. Trico Technologies Corp. v. Montiel, 949 S.W.2d 308, 312 (Tex. 1997); Lozoya, 81 S.W.3d at 347. Thus, the section has both remedial and deterrence objectives. Lozoya, 81 S.W.3d at 347. An employee can recover damages for retaliatory discharge under this provision only if she proves that without her filing a workers' compensation claim, the discharge would not have occurred when it did. Continental Coffee Products Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996); Lozoya, 81 S.W.3d at 347. This causal link may be established by direct or circumstantial evidence. Lozoya, 81 S.W.3d at 347. Circumstantial evidence sufficient to establish a causal link between termination and filing a compensation claim includes: (1) knowledge of the compensation claim by those making the decision to terminate; (2) a negative attitude toward the employee's injured condition; (3) failure to adhere to established company policies; (4) discriminatory treatment of the injured employee in comparison to similarly situated employees; and (5) providing incentives to refrain from reporting on-the-job injuries. Id. at 347-48; Wyler Industrial Works, Inc. v. Garcia, 999 S.W.2d 494, 501 (Tex.App.--El Paso 1999, no pet.). Further, proof that the stated reasons for the discharge are false is sufficient to establish that the employee was terminated in violation of Section 451.001. Lozoya, 81 S.W.3d at 348, citing Continental Coffee, 937 S.W.2d at 452. Once the link is established, it is the employer's burden to rebut the alleged discrimination by showing there was a legitimate reason behind the discharge. Lozoya, 81 S.W.3d at 348; Terry v. Southern Floral Co., 927 S.W.2d 254, 257 (Tex.App.--Houston [1st Dist.] 1996, no pet.).

Uniform enforcement of a reasonable absence-control provision does not constitute retaliatory discharge. Lozoya, 81 S.W.3d at 348, citing Continental Coffee, 937 S.W.2d at 451. If an employee's termination is required by the uniform enforcement of a reasonable absentee policy, then it cannot be said that termination would not have occurred when it did but for the employee's assertion of a compensation claim or other conduct protected by Section 451.001. Id. Consequently, an employer who terminates an employee for violating such a rule cannot be liable for retaliatory discharge so long as the rule is uniformly enforced. Id.

Standard of Review

When attacking the legal sufficiency of the evidence to support an adverse finding on an issue for which she had the burden of proof, i.e., challenging the trial court's finding as a matter of law, the appellant must demonstrate on appeal that the evidence conclusively established all the vital facts in support of the issue. Sterner v. Marathon Oil Company, 767 S.W.2d 686, 690 (Tex. 1989); In re Estate of Livingston, 999 S.W.2d 874, 879 (Tex.App.--El Paso 1999, no pet.). A party attempting to overcome an adverse fact finding as a matter of law must surmount two hurdles. Sterner, 767 S.W.2d at 690; Livingston, 999 S.W.2d at 879. First, the record must be examined for evidence that supports the finding, while ignoring all evidence to the contrary. Sterner, 767 S.W.2d at 690; Livingston, 999 S.W.2d at 879. Second, if there is no evidence to support the finding, then, the entire record must be examined to see if the contrary proposition is established as a matter of law. Sterner, 767 S.W.2d at 690; Livingston, 999 S.W.2d at 879. Only if the contrary position is conclusively established will the point of error be sustained. Livingston, 999 S.W.2d at 879-80.

Review of the Evidence

It is undisputed that Levi Strauss has a twelve-month medical leave policy which applies to all employees, not just those who have been injured on the job. Following her 1996 injury and a leave of absence, Corral returned to work in April of 1997. She was initially placed on a reduced production curve which she could not maintain as the requirements became progressively more demanding. Over the next several months, Dr. Keim imposed restrictions on Corral which could not be accommodated by Levi Strauss. On October 14, 1997, Dr. Keim took Corral off of work for the next six months. In July of 1998, Dr. Keim released Corral to return to work but once again he placed restrictions on her which Levi Strauss could not accommodate. Dr. Neustein's evaluation of Corral was inconsistent with that of Dr. Keim even after Levi Strauss sought clarification from both doctors. Consequently, Levi Strauss proposed that Corral be examined by an independent third physician. Dr. Brian August performed that independent evaluation of Corral and determined that she could work albeit with certain restrictions. The Return to Work Committee determined that Corral could not perform any sewing jobs even with reasonable accommodations. Consequently, Levi Strauss discharged Corral pursuant to its medical leave policy because she had been absent more than twenty-six months. This evidence supports the jury's determination that Levi Strauss did not discharge Corral because she engaged in protected conduct. Issue One is overruled.

AGAINST THE GREAT WEIGHT AND PREPONDERANCE CHALLENGE

In Issue Two, Corral contends that the jury's answer to Question No. 1 is against the great weight and preponderance of the evidence. Levi Strauss argues that Corral failed to preserve this issue for review. We agree. Pursuant to Rule 324(b) of the Texas Rules of Civil Procedure, a motion for new trial is a prerequisite to an appellate complaint of factual insufficiency of the evidence to support a jury finding or a complaint that a jury finding is against the overwhelming weight of the evidence. Tex.R.Civ.P. 324(b)(2), (3); El Paso Healthcare System, Ltd. v. Piping Rock Corp., 939 S.W.2d 695, 703 (Tex.App.--El Paso,1997, writ denied). Although Corral filed a motion for new trial, she did not raise an issue asserting that the jury's answer to Question No. 1 is against the great weight and preponderance of the evidence. Accordingly, her complaint is waived.

Issue Two is overruled.

ADMISSION OF EVIDENCE

In Issues Three and Four, Corral complains about the admission of certain evidence at trial. The admission or exclusion of evidence is left to the sound discretion of the trial court. Franco v. Franco, 81 S.W.3d 319, 340-41 (Tex.App.--El Paso 2002, no pet.); Lohmann v. Lohmann, 62 S.W.3d 875, 881 (Tex.App.--El Paso 2001, no pet.). We will not disturb the trial court's ruling absent an abuse of discretion. See Franco, 81 S.W.3d at 340-41. A trial court abuses its discretion only if it acted unreasonably or in an arbitrary manner, without reference to any guiding rules or principles. Butnaru v. Ford Motor Company, 84 S.W.3d 198, 211 (Tex. 2002). Further, errors in admitting evidence will not require reversal unless the error was reasonably calculated to cause and probably did cause rendition of an improper judgment. Tex.R.App.P. 44.1(a)(1); Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989). This standard is met only where the erroneously admitted evidence controlled the judgment. See Gee, 765 S.W.2d at 396.

Evidence of the Union Contract and Findings by UNITE ⁽⁴⁾ and NLRB

Corral first argues that the trial court erred in admitting irrelevant evidence of the union contract and the findings by UNITE and the National Labor Relations Board that Levi Strauss did not violate the union contract when it discharged Corral. The Texas Rules of Evidence defines "relevant evidence" to mean evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Tex.R.Evid. 401. According to Corral, evidence of the union contract, her union grievances pertaining to her discharge, and the findings by UNITE and the NLRB are irrelevant to her suit against Levi Strauss.

Levi Strauss responds that Corral opened the door to admission of the challenged evidence by eliciting evidence that Levi Strauss could have accommodated Corral by displacing another employee to create a position for Corral. During the cross-examination of Levi Strauss's Human Resource Manager, Estela Ortiz, Corral's attorney showed Ortiz the September 17, 1999 discharge letter sent to Corral. The following exchange then occurred:

[Corral's attorney]: This letter of September 17, 1999, Ms. Ortiz, you wrote to Elvia saying that you had made ever [sic] effort, correct? ⁽⁵⁾

[Ortiz]: That's correct.

[Corral's attorney]: Is that correct when you were considering whether you should put her back to work or not? Did you consider moving somebody from a hang pocket operation and putting them elsewhere?

[Ortiz]: You mean pulling them so that I can accommodate them for somebody else?

[Corral's attorney]: Sure.

[Ortiz]: We don't allow pulling people to accommodate somebody else.

[Corral's attorney]: It's your policy not to do that?

[Ortiz]: That's correct.

[Corral's attorney]: That's not something that the law prohibits you from doing. It's your policy to do that.

[Objection sustained.]

[Corral's attorney]: Do you know if it's unlawful to move somebody from one position to another within the plant?

[Ortiz]: It's not unlawful, no.

. . .

[Corral's attorney]: But with respect to Ms. Corral, you made it a point, and it was Levi Strauss' decision not to move somebody from hang pocket position to accommodate her, correct?

[Ortiz]: We could not bump somebody that had been there to accommodate her. That was their job. I couldn't bump other operators.

. . .

[Corral's attorney]: Did Levi Strauss and Company make the decision not to move somebody as a hang pocket operator to a different position to accommodate Ms. Corral?

[Ortiz]: Yes.

In response, Levi Strauss offered evidence that it could not displace another employee without violating the union contract. According to Ortiz, the union contract prohibits Levi Strauss from displacing or "bumping" an employee from his or her operation. The contract provides that an employee with physical limitations may be accommodated into a different operation by reassignment to a "future job vacancy" without engaging in job bidding but it does not provide for the creation of a vacancy by displacing another employee. Levi Strauss also introduced evidence that Corral filed grievances with UNITE and the NLRB regarding her discharge. In the grievance filed with UNITE, Corral argued that she was discharged in violation of the Americans with Disabilities Act and because she had made a complaint to the Equal Employment Opportunity Commission. Corral's grievance filed with the NLRB alleged that Levi Strauss discharged her because she had engaged in union activities. UNITE determined that Levi Strauss had not violated the union contract but had instead complied with the medical leave policy contained in the contract. Following an initial investigation of Corral's complaint, the NLRB refused to issue a complaint or engage in further proceedings.

We agree with Levi Strauss that the union contract and Ortiz's testimony regarding the company's inability to displace another employee without violating the union contract are relevant to rebut Corral's assertion that Levi Strauss could have and should have displaced another employee to accommodate her. Therefore, the trial court did not abuse its discretion in finding this evidence to be relevant. However, Corral's filing of union grievances and the adverse findings by UNITE and the NLRD are not relevant to this same issue. Levi Strauss alternatively argues that Corral's union grievances and the union findings are relevant because they show that she had made inconsistent claims. Because Corral's credibility and her motivations in bringing suit were obviously at issue, we agree that the union grievances and the findings are relevant.

Corral also argues that the trial court abused its discretion in admitting this evidence because its probative value is substantially outweighed by the danger of unfair prejudice and confusion of the jury. See Tex.R.Evid. 403. She claims that the evidence is unfairly prejudicial because it showed the jury that Levi Strauss had no liability for a violation of Section 451. To the contrary, Corral's attorney established through examination of Corral that the union findings did not address whether Levi Strauss discharged Corral because she filed workers' compensation claims. Therefore, any prejudice inherent in the evidence does not substantially outweigh its probative value.

Even if the trial court erred in admitting some or all of this evidence, we conclude that it did not cause the rendition of an improper judgment. The jury had before it substantial evidence that Levi Strauss discharged Corral pursuant to its medical leave policy. Because the allegedly inadmissible evidence did not control the judgment, reversal is not required. Finding no abuse of discretion, we overrule Issue Three.

Other Causes of Action and 1997 Workers' Compensation Claim

In Issue Four, Corral argues that the trial court erred in admitting evidence of Corral's other claims of age discrimination, disability discrimination, and retaliation for filing a claim with the Equal Employment Opportunity Commission. Additionally, she contends that the court should not have admitted evidence that her 1997 Workers' Compensation claim was found not to be a compensable injury. As these arguments raise different issues, we will address them separately.

With the first argument, Corral claims that the court admitted evidence "of Corral's other claims presented previously in federal court." The evidence to which her brief directs the Court, however, is not evidence that Corral presented claims in federal court, but rather that she had made other claims in this case. During cross-examination, counsel for Levi Strauss elicited from Corral that her live pleadings alleged age discrimination, disability discrimination, and discrimination for filing a complaint with the EEOC. The questions were limited to the claims Corral had filed in the instant case, and consequently, the jury heard no evidence that the claims were previously presented in federal court and decided adversely to Corral. Generally, the scope of cross-examination is broad and wide-ranging, and a witness may be examined regarding the subject matter of the litigation, his relationship to the parties, as well as the witness' interest, bias, motives, inclinations, and prejudices. Hogue v. Kroger Store No. 107, 875 S.W.2d 477, 480 (Tex.App.--Houston [1st Dist.] 1994, writ denied); Harrison v. Texas Employers Insurance Association, 747 S.W.2d 494, 498 (Tex.App.-- Beaumont 1988, writ denied). The trial court did not abuse its discretion in permitting Levi Strauss to cross-examine Corral in this manner.

Denial of 1997 Workers' Compensation Claim

Counsel for Levi Strauss also questioned Corral about the determination by the Workers' Compensation Commission that her 1997 injury (the stress-related emotional injury) was not compensable. Corral argues that the evidence should have been excluded because it lacks relevance and its probative value is substantially outweighed by the danger of unfair prejudice. Because Corral only raised a relevance objection in the trial court, we will not address her Rule 403 argument. See Tex.R.App.P. 33.1(a)(1)(A). In order to prosecute a Section 451.001 suit, the plaintiff must prove that she filed the Workers' Compensation claim in good faith. Tex.Lab.Code Ann. § 451.001 ("A person may not discharge or in any other manner discriminate against an employee because the employee has: (1) filed a workers' compensation claim in good faith."). The determination by the Commission that Corral's injury was not compensable is relevant to the good faith element of her claim. Therefore, the trial court did not abuse its discretion in permitting this cross-examination. Issue Four is overruled.

EXCLUSION OF EVIDENCE

In Issue Five, Corral contends that the trial court erred in excluding Plaintiff's Exhibits 77 and 80 which are two letters from Levi Strauss's counsel addressed to Corral's counsel. She argues that the letters constituted evidence of her return to work status in 1998 and 1999 and demonstrates Levi Strauss's discriminatory motive and intent. Because the trial court ultimately admitted Defendant's Exhibit 313, which is a copy of Plaintiff's Exhibit 80, we will only consider whether the trial court erred in excluding Plaintiff's Exhibit 77.

Plaintiff's Exhibit 77 is a letter written by Ruben Robles, counsel for Levi Strauss, addressed to Corral's attorney, Lark Fogel. The letter, dated August 7, 1998, stated as follows:

I am in receipt of your letter dated July 29, 1998 and the enclosed medicals. As you know, Ms. Corral is also being treated by Dr. Joseph Neustein for a different injury than the one referenced in your letter. [Levi Strauss] has previously requested information regarding restrictions from Dr. Neustein, but have not heard from him as of this date. They are contacting him again and sending him a copy of Dr. Kaim's [sic] report. It would not be prudent to attempt to return Ms. Corral to work at this time until we hear from both of her treating doctors who are treating her for different injuries. As soon as the Company has Dr. Neustein's report, we will be able to let you know if [Levi Strauss] will be able to accommodate Ms. Corral with an available position. In the mean time [sic], her leave of absence is extended pending our search for clarification on accommodation.

At the time Robles wrote the letter, Corral had already sued Levi Strauss for discriminatory treatment under Section 451.001. The letter pertained to the Company's efforts to obtain clarification from Corral's treating physicians about her ability to return to work and the restrictions imposed on her. As detailed above in the factual summary, Dr. Keim and Dr. Neustein had provided conflicting information to Levi Strauss. Corral was terminated by Levi Strauss more than a year later and she amended her pleadings to allege discriminatory discharge.

Corral offered Plaintiff's Exhibit 77 for the express purpose of proving that Levi Strauss had no intention of allowing Corral to return to work but instead engaged in delay tactics until it could find a way to discharge her. ⁽⁶⁾ Thus, Corral sought to prove Levi Strauss's motives through the letter written by its attorney. Levi Strauss objected to admission of this evidence on the ground that Robles would have been required to testify in order required to explain his intent when he wrote Plaintiff's Exhibit 77, and in turn, he would have been required to withdraw from representation of Levi Strauss in the middle of trial. See Tex.Disciplinary R.Prof'l Conduct 3.08, reprinted in Tex.Gov't Code Ann., tit. 2, subtit. G app. A (Vernon 1998)(prohibiting a lawyer from continuing employment as an advocate before a tribunal in a contemplated or pending adjudicatory proceeding if the lawyer knows or believes that the lawyer is or may be a witness necessary to establish an essential fact on behalf of the lawyer's client). The trial court sustained Levi Strauss's objections to admission of the letter.

We find no abuse of discretion in the exclusion of this evidence as it was cumulative of substantial evidence already admitted showing Levi Strauss's attempts to obtain clarification from Corral's doctors and the resulting delay. See Tex.R.Evid. 403. Thus, Corral had evidence from which she could argue that Levi Strauss intentionally delayed her return to work in order to build a case against her. Issue Five is overruled.

In Issue Six, Corral contends that the cumulative effect of the errors alleged in her first five issues resulted in an improper verdict. A reviewing court may reverse a lower-court judgment under the cumulative-error doctrine when the record shows a number of instances of error, "no one instance being sufficient to call for a reversal, yet all the instances taken together may do so." The University of Texas at Austin v. Hinton, 822 S.W.2d 197, 205 (Tex.App.--Austin 1991, no writ), quoting Sproles Motor Freight Lines, Inc. v. Long, 140 Tex. 494, 168 S.W.2d 642, 645 (1943). As we have found no error committed by the trial court, the cumulative error doctrine does not apply. See Hinton, 822 S.W.2d at 205. Accordingly, Issue Six is overruled. Having overruled Issues One through Six, we affirm the judgment of the trial court.

October 2, 2003

ANN CRAWFORD McCLURE, Justice

Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.

1. This committee is composed of representatives from various departments at Levi Strauss, including the Human Resources Department; Nursing Department; Prevention, Safety and Health Department; and Production Department. In 1999, a union representative was added to the committee. The committee met weekly to evaluate the physical requirements of a particular job with each employee's medical restrictions in order to determine whether accommodations could be made and the employee returned to work without violating medical restrictions.

2.

F.C.E. refers to Functional Capacity Evaluation.

3.

Tex.Lab.Code Ann. § 451.001 (Vernon 1996).

4.

UNITE is an acronym for Union of Needletrades, Industrial and Textile Employees, AFL-CIO.

5. The letter stated: "We have made every effort, but are unable to accommodate your physical restrictions. Therefore, we regret to inform you that we have no alternative but to terminate your employment with Levi Strauss & Co., effective immediately. Please note that an employee who is unable to return to work after a year with or without accommodation is eligible to apply for employment with the company, if and when we are hiring. We hope you understand our decision and wish you the best in all of your endeavors. Please feel free to call me with any questions."

6.

At oral argument, Corral's attorney criticized Levi Strauss for not firing Corral sooner. He remarked that Levi Strauss did not uniformly enforce the medical leave policy because it did not fire Corral immediately upon the expiration of twelve months, but instead extended her leave for several more months while the company "built its case" against her. While it is true that Dr. August's report supports Levi Strauss's conclusion that Corral could not return to work, it is also true that Levi Strauss would have been required to put Corral back to work if Dr. August had placed less onerous restrictions on Corral.