TYSON FOODS, INC.
April 16, 1999
Record No. 981313
WALTER C. COOLEY
TYSON FOODS, INC., A NORTH CAROLINA CORPORATION
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
Present: All the Justices
OPINION BY JUSTICE LEROY R. HASSELL, SR.
In this appeal we consider whether a discharged
employee presented sufficient evidence to support a jury’s
finding that he was fired by his former employer because he had
intended to file a workers’ compensation claim.
Walter C. Cooley filed a motion for judgment
against Tyson Foods, Inc., and its personnel manager, Leonard
Parks. Cooley, relying upon Code Sect. 65.2-308,  alleged that he was terminated solely
because he intended to file a claim under the Virginia Workers’
Compensation Act. Cooley nonsuited his claim against Parks and at
a trial, the jury returned a verdict in favor of Cooley in the
amount of $36,450. The circuit court granted Tyson Foods’ motion
to set aside the jury’s verdict. The circuit court held that
Cooley failed to prove that he had intended to file a workers’
compensation claim and that Cooley failed to establish that Tyson
Foods had discharged him solely because he had intended to file
such claim. Cooley appeals.
Even though the circuit court set aside the
jury’s verdict, we accord the recipient of a jury verdict the
benefit of all substantial conflicts in the evidence and all
reasonable inferences which may be drawn therefrom. Therefore, we
will state the facts in the light most favorable to Cooley, and
if there is any credible evidence in the record which supports
the jury’s verdict, we will reinstate that verdict and enter
judgment thereon. Holland v. Shively, 243 Va. 308,
309-10, 415 S.E.2d 222, 223 (1992).
Cooley had been employed with Tyson Foods for
approximately 29 years. On August 5, 1996, Dr. Brenda Ray,
Cooley’s personal physician, examined him for urological
problems. During that examination, Cooley asked Dr. Ray to
examine his back. According to Cooley, Dr. Ray examined his back
and found nothing wrong with him.
The next day while working at a Tyson Foods’
facility, Cooley experienced a "bad pain in [his] back"
when he tried to place a cart upon a table while performing his
duties as a maintenance mechanic. Cooley was transported to the
medical department where Pat Gasque, Tyson Foods’ supervising
nurse, obtained his medical history. While Gasque was completing
a form described as an "injured workers’ statement,"
she asked Cooley: "Have you recently or in the past injured
yourself off the job?" Cooley responded, "no."
Gasque recorded Cooley’s response on the form and Cooley signed
Gasque made arrangements for Cooley to be taken
to a hospital’s emergency room because he continued to experience
pain. After the emergency room personnel treated Cooley, he
returned to Tyson Foods’ facility.
When Cooley arrived at work the next day,
Gasque referred him to Dr. Douglas A. Wayne, a physician who
practices physical medicine and rehabilitation. Dr. Wayne
performed an evaluation of Cooley and determined that he was
experiencing pain on the left side and back of his body. Dr.
Wayne also took a medical history from Cooley.
After conducting this physical examination, Dr.
Wayne decided to contact Dr. Ray to discuss Cooley’s medical
condition. During a telephone conversation, Dr. Ray informed Dr.
Wayne that Cooley had been to see her on August 5, 1996, and that
he complained about "left side back pains, very
similar" to the conditions that he had described to Dr.
Wayne. Dr. Ray further advised Dr. Wayne that Cooley had informed
her that he hurt his back when he had "been hit hard by some
waves" at a beach on August 4, 1996. When Dr. Wayne informed
Cooley that Dr. Ray stated that Cooley had been injured on August
4, Cooley did not respond. "He didn’t say anything."
Gasque, who had accompanied Cooley to Dr.
Wayne’s office, learned that Dr. Ray had treated Cooley for a
back injury he incurred at a beach. She conveyed this information
to Parks, who suspended Cooley from work and conducted an
investigation. Parks obtained a letter that Dr. Wayne had written
to Gasque which stated, in pertinent part: "After Mr. Cooley
was seen I contacted Dr. Ray to discuss the situation and to see
if she could see him soon. It was at that time that she relayed
that Mr. Cooley had been in her office two days ago complaining
of left side and back pain. He gave her the history that he had
hurt himself at the beach over the weekend and had been hit hard
by waves and had banged his flank and back into the sand."
Parks also obtained Dr. Ray’s notes which
indicate that Cooley had injured his back on August 4, 1996.
Parks reviewed medical records that Dr. Wayne and Dr. Ray had
forwarded to him and decided to terminate Cooley’s employment
because he had made a false statement that he had not been
injured "recently or in the past . . . off the
Code Sect. 65.2-308 requires that Cooley
present evidence which establishes that he was terminated solely
because he had intended to file a workers’ compensation claim.
Cooley, relying upon Charlton v. Craddock-Terry Shoe
Corp., 235 Va. 485, 369 S.E.2d 175 (1988), argues that he
presented sufficient evidence to meet this statutory requisite.
Tyson Foods asserts that Cooley failed to establish by a
preponderance of the evidence that he was fired solely because he
intended to file a workers’ compensation claim. We agree with
In Charlton, we considered whether the
evidence supported a jury’s verdict finding that an employee had
been discharged because she had incurred a work-related injury or
disease for which she had intended to file a claim under the
Virginia Workers’ Compensation Act. The plaintiff developed
tendonitis in her right hand caused by the performance of her
assigned duties. The plaintiff received an award of workers’
compensation benefits for lost wages and the cost of medical
treatment. Subsequently, the plaintiff was required to leave work
and seek treatment for pain in the same hand at the emergency
room of a hospital. 235 Va. at 487, 369 S.E.2d at 176.
When the plaintiff returned to work, she was
summoned to a meeting, and the defendant required her to sign a
form which waived her right to claim compensation benefits
related to certain physical conditions. Id. The plaintiff
declined to sign the form because she did not understand it. 235
Va. at 488, 369 S.E.2d at 176. Later, the defendant informed the
plaintiff that if she persisted in her refusal to sign the waiver
form, she would be terminated. The plaintiff signed the form and
delivered it to her employer, who forwarded the form for approval
to the Workers’ Compensation Commission. The plaintiff then
retained counsel who withdrew the waiver, and the Workers’
Compensation Commission advised the defendant that the Commission
would not approve the waiver. Id. The defendant fired the
plaintiff four days before the plaintiff’s attorney had withdrawn
the waiver and six days before the Commission refused to approve
the waiver. 235 Va. at 490, 369 S.E.2d at 177-78.
During cross-examination, the plaintiff stated
that she was fired because she had refused to sign a waiver of
her right to claim workers’ compensation benefits. 235 Va. at
488, 369 S.E.2d at 177. Relying upon this testimony, the
defendant argued that the plaintiff’s evidence showed that she
was not fired solely because she intended to file a workers’
compensation claim and that her refusal to sign the waiver
constituted a separate reason for her dismissal. 235 Va. at
488-89, 369 S.E.2d at 177. Rejecting the defendant’s contentions,
we held that the record in Charlton revealed that the
defendant’s motivation for terminating the plaintiff was a matter
outside the realm of her knowledge and that the evidence when
considered in its entirety supported the jury’s finding that the
plaintiff was discharged solely because she had intended to file
a workers’ compensation claim. 235 Va. at 490, 369 S.E.2d at
177-78. See also Mullins v. Virginia
Lutheran Homes, 253 Va. 116, 119-20, 479 S.E.2d 530, 532-33
Here, unlike Charlton, the evidence of
record reveals that Cooley failed to prove by a preponderance of
the evidence that Tyson Foods fired him solely because he
intended to file a workers’ compensation claim. The evidence of
record clearly establishes that Tyson Foods, which had conducted
a thorough investigation, was entitled to conclude, based upon
the facts it adduced during that investigation, that Cooley had
made a false representation to Tyson Foods. Thus, Tyson Foods had
a legitimate non-pretextual reason to terminate Cooley which
cannot subject Tyson Foods to liability under Code
Accordingly, we will affirm the judgment of the
 Code Sect. 65.2-308 states in
"A. No employer or person shall
discharge an employee solely because the employee intends
to file or has filed a claim under this title or has
testified or is about to testify in any proceeding under
this title. The discharge of a person who has filed a
fraudulent claim is not a violation of this section.
"B. The employee may bring an
action in a circuit court having jurisdiction over the
employer or person who allegedly discharged the employee
in violation of this section. The court shall have
jurisdiction, for cause shown, to restrain violations and
order appropriate relief, including actual damages and
attorney’s fees to successful claimants and the rehiring
or reinstatement of the employee, with back pay plus
interest at the judgment rate . . . ."