Jefferson County, Texas v. Donna Davis ( 2015 )

FILED
14-1029
5/13/2015 3:52:28 PM
tex-5272581
SUPREME COURT OF TEXAS
BLAKE A. HAWTHORNE, CLERK
NO. 14-1029
IN THE SUPREME COURT OF TEXAS
JEFFERSON COUNTY, TEXAS,
Petitioner
v.
DONNA DAVIS,
Respondent
ON PETITION FOR REVIEW FROM THE
FOURTEENTH COURT OF APPEALS, HOUSTON, TEXAS
No. 14-13-00663-CV
BRIEF OF PETITIONER
Kathleen Kennedy David Gaultney
Chief Civil Attorney MehaffyWeber, P.C.
State Bar No. 00798314 State Bar No. 07765300
kkennedy@co.jefferson.tx.us davidgaultney@mehaffyweber.com
Office of Criminal District Attorney 823 Congress Avenue, Suite 200
1001 Pearl Street, 3rd Floor Austin, Texas 78701
Beaumont, Texas 77701 (512) 394-3840; Fax: (512) 394-3860
(409) 835-8550; Fax: (409) 784-5893
Patricia Chamblin
Jeremy Stone MehaffyWeber, P.C.
MehaffyWeber, P.C. State Bar No. 04086400
State Bar No. 24013577 patriciachamblin@mehaffyweber.com
jeremystone@mehaffyweber.com P.O. Box 16
500 Dallas, Suite 1200 Beaumont, Texas 77704
Houston, Texas 77002 (409)835-5011; Fax (409) 835-5177
(713) 655-1200; Fax (713) 655-0222
ATTORNEYS FOR PETITIONER
JEFFERSON COUNTY, TEXAS
IDENTITY OF PARTIES AND COUNSEL
Petitioner
Jefferson County, Texas
Represented by:
David Gaultney
MehaffyWeber, P.C.
State Bar No. 07765300
davidgaultney@mehaffyweber.com
823 Congress Avenue, Suite 200
Austin, Texas 78701
Phone: (512) 394-3840
Fax: (512) 394-3860
Patricia Chamblin
MehaffyWeber, P.C.
State Bar No. 04086400
patriciachamblin@mehaffyweber.com
P.O. Box 16
Beaumont, Texas 77704
Phone: (409)835-5011
Fax (409) 835-5177
Jeremy Stone
MehaffyWeber, P.C.
State Bar No. 24013577
jeremystone@mehaffyweber.com
500 Dallas, Suite 1200
Houston, Texas 77002
Phone: (713) 655-1200
Fax (713) 655-0222
ii
Kathleen Kennedy
Chief Civil Attorney
State Bar No. 00798314
kkennedy@co.jefferson.tx.us
Office of Criminal District Attorney
1001 Pearl Street, 3rd Floor
Beaumont, Texas 77701
Phone: (409) 835-8550
Direct: (409)835-8577
Fax: (409)784-5893
Respondent
Donna Davis
Represented by:
Iain G. Simpson
Simpson, PC
Iain@simpsonpc.com
1333 Heights Blvd., Suite 102
Houston, Texas 77008
Phone: (281)989-0742
Fax: (281)596-5960
Larry Watts
Azuwuike “Ike” Okoro Okorafor
Watts & Associates
wattstrial@gmail.com
P. O. Box 2214
Missouri City, TX 77459
Phone: (281) 431-1500
Fax: (281) 431-1298
iii
TABLE OF CONTENTS
Identity of Parties and Counsel .................................................................ii
Table of Contents ..................................................................................... iv
Index of Authorities............................................................................... viii
Statement of the Case .............................................................................. xv
Statement of Jurisdiction ...................................................................... xvii
Issues Presented ................................................................................... xviii
1. The jury found that age was one of several
motivating factors for the termination. Does the
“motivating factor” standard require proof that
age animus was actually responsible for the
termination, that is, proof of causation-in-fact?
Specifically, are retirement comments, statements
nearly a year before the termination, and a
birthday-cake joke legally sufficient evidence that
age was a motivating factor for the termination? ............. xviii
2. Front pay is not mentioned in the statute. Is front
pay recoverable under Chapter 21 of the Labor
Code and, if so, as capped compensatory damages
or as equitable relief? Do the limits on remedies in
the statute determine the extent of the waiver of
governmental immunity to suit? ....................................... xviii
3. Did the Court of Appeals err by holding that the
state statutory cap is an affirmative defense? ................... xviii
4. Did the County’s assertion in issue seven that
Davis is entitled to “back wages and equitable
relief only” – and the separate argument in issue
nine challenging the jury “verdict on damages” as
iv
“outrageous” and the result of a “run-away jury” –
preserve challenges to the award of front pay and
to the excessiveness of the damages? ............................... xviii
5. The County raised issues that were not decided by
the Court of Appeals. TEX. R. APP. P. 53.4.
Davis’s statement concerning a personal debt was
not protected speech. No First Amendment
protected right was violated. No policy, custom,
or practice of the County caused any violation of
Davis’s federally protected rights. Imposing civil
rights liability on the County based on principles
of respondeat superior is improper as a matter of
law. No legally sufficient evidence supports the
jury’s liability findings. The excessive damages
award is “outrageous.” The County asks this
Court to consider these issues and render a take-
nothing judgment on all claims, remand for a new
trial, or remand the cause for consideration of the
remaining issues by the Court of Appeals. .......................... xix
Statement of Facts ..................................................................................... 1
Summary of Argument ............................................................................ 26
Argument ................................................................................................. 28
I. The “motivating factor” standard requires proof
that age animus was responsible for and a legal
cause of the termination. Retirement comments,
statements nearly a year before the termination,
and a birthday-cake joke are not legally sufficient
proof that age was a motivating factor in the
termination............................................................................. 28
v
A. The evidence is legally insufficient to
establish that Davis’s termination was the
result of age discrimination. ......................................... 29
1. No pretext ............................................................ 29
2. No direct evidence .............................................. 33
3. A permissible reason. .......................................... 37
B. The record establishes that the termination
would have occurred in the absence of an
impermissible motivating factor. The
December meeting, not any impermissible
factor, was the cause of the termination. On
this record, damages cannot be awarded
against the County. ....................................................... 42
1. Trial by consent ................................................... 43
2. Cause-in-fact ....................................................... 44
3. Causation in a pretext case .................................. 48
II. Davis was not entitled to recover front pay. ......................... 52
A. Front pay is not recoverable under Chapter
21 of the Texas Labor Code. ........................................ 53
B. If front pay is an available equitable remedy
under Chapter 21, it is not recoverable in
this case as a matter of law........................................... 56
III. Several federal courts and a Kentucky appellate
court have determined that the federal statutory
damages cap is an integral part of the statutory
scheme and is not an affirmative defense that
must be pleaded. The Court of Appeals erred by
vi
holding that the state statutory cap is an
affirmative defense. ............................................................... 59
IV. The Court of Appeals erred in ruling that the
County waived its challenge to the award of front
pay and to the excessiveness of the damage
award. .................................................................................... 63
V. The Court should reverse and render a take-
nothing judgment on all claims or, alternatively,
remand the cause to the Court of Appeals for
consideration of those issues not decided by that
court. ...................................................................................... 65
A. But-for causation .......................................................... 65
1. The Mt. Healthy rule ........................................... 65
2. The retaliation claims .......................................... 67
B. Analysis of First Amendment claims........................... 69
C. Davis’s First Amendment claims ................................. 72
1. Meeting with Commissioner ............................... 72
2. Age or retirement ................................................ 75
3. The transfer ......................................................... 78
4. The debt ............................................................... 81
Prayer ....................................................................................................... 86
Certificate of Compliance ....................................................................... 89
Certificate of Service ............................................................................... 90
Appendix ................................................................................................. 91
vii
INDEX OF AUTHORITIES
Cases
Alexander v. Eads,
392 F.3d 138 (5th Cir. 2004) ..............................................76, 77, 85
Arismendez v. Nightingale Home Health Care, Inc.,
493 F.3d 602 (5th Cir. 2007) .......................................................... 33
AutoZone, Inc. v. Reyes,
272 S.W.3d 588 (Tex. 2008) (per curiam) ...................33, 34, 35, 36
Barth v. Hoffmann-La Roche, Inc.,
No. 05-01-00302-CV, 2002 WL 1225684 (Tex. App.—
Dallas June 6, 2002, no pet.) (not designated for
publication) ..................................................................................... 34
Beattie v. Madison County Sch. Dist.,
254 F.3d 595 (5th Cir. 2001) .................................................... 74, 81
Benningfield v. City of Houston,
157 F3d 369 (5th Cir. 1998) ........................................................... 71
Bostic v. Georgia-Pacific Corporation,
439 S.W.3d 332 (Tex. 2014) ..............................................28, 47, 48
Branton v. City of Dallas,
272 F.3d 730 (5th Cir. 2001) ........................................70, 71, 85, 86
Burnside v. Kaelin,
773 F.3d 624 (5th Cir. 2014) .................................................... 69, 73
Caro v. City of Dallas,
17 F. Supp. 2d 618 (N.D. Tex. 1998)............................................. 75
Chavez v. Brownsville ISD,
135 Fed. Appx. 664 (5th Cir. 2005) ......................................... 71, 85
viii
City of Keller v. Wilson,
168 S.W.3d 802 (Tex. 2005) .................................................... 36, 42
City of San Antonio v. Pollock,
284 S.W.3d 809 (Tex. 2009) .......................................................... 58
Connick v. Myers,
461 U.S. 138 (1983) ................ 37, 39, 41, 70, 71, 72, 74, 75, 76, 85
Core Med., LLC v. Schroeder,
No. 2009-CA-000670-MR, 2010 WL 2867820 (Ky. Ct.
App. July 23, 2010) ........................................................................ 61
Davis v. McKinney,
518 F.3d 304 (5th Cir. 2008) ..............................................40, 41, 86
Estate of Martineau,
203 F3d 904 (5th Cir. 2000) ..................................................... 58, 59
Finch v. Fort Bend I.S.D.,
333 F.3d 555 (5th Cir. 2003) .......................................................... 86
Garcetti v. Ceballos,
547 U.S. 410 (2006) ...........................................................39, 40, 41
Gibson v. Kilpatrick,
773 F.3d 661 (5th Cir. 2014) petition for cert. filed,
(U.S. Mar. 13, 2015)(No. 14-1112) ............................................... 40
Giles v. Gen. Elec. Co.,
245 F.3d 474 (5th Cir. 2002) .................................................... 59, 60
Goss v. Exxon Office Sys. Co.,
747 F.2d 885 (3d Cir. 1984) ........................................................... 56
Graziosi v. City of Greenville Mississippi,
775 F3d 731 (2015) .................................................................. 38, 41
ix
Gross v. FBL Financial Services, Inc.,
557 U.S. 167 (2009) ................................................................. 50, 51
Hartman v. Moore,
547 U.S. 250 (2006) ................................................................. 52, 66
Haynes v. City of Beaumont,
35 S.W.3d 166 (Tex. App.—Texarkana 2000, no pet.) ................. 77
Hoffman-La Roche, Inc. v. Zeltwanger,
69 S.W.3d 634 (Tex. App.—Corpus Christi 2002),
rev’d on other grounds,
144 S.W.3d 438 (Tex. 2004) ................................................... 54, 61
Ingram v. Deere,
288 S.W.3d 886 (Tex. 2009) .......................................................... 44
Jefferson County v. Davis,
No. 14-13-00663, 2014 WL 4262184 (Tex. App.—
Houston [14th Dist.] Aug. 28, 2014, pet filed) ............................... 53
Lane v. Franks,
__U.S. __, 134 S. Ct. 2369 (2014) .................................................. 40
M.D. Anderson Hosp. and Tumor Inst. v. Willrich,
28 S.W.3d 22 (Tex. 2000) (per curiam) ................................... 35, 37
Manbeck v. Austin Indep. Sch. Dist.,
381 S.W.3d 528 (Tex. 2012) .......................................................... 62
McCoy v. City of Shreveport,
492 F.3d 551 (5th Cir. 2007) .......................................................... 29
Mission Consol. Ind. School Dist. v. Garcia,
372 S.W.3d 629 (Tex. 2012) ..............................................29, 61, 62
Mooney v. Lafayette Cnty. Sch. Dist.,
538 Fed. Appx. 447 (5th Cir. 2013) (unpublished) ....................... 66
x
Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,
429 U.S. 274 (1977) ...........................................................46, 52, 66
Navy v. Coll. of the Mainland,
407 S.W.3d 893 (Tex. App.—Houston [14th Dist.]
2013, no pet.) .................................................................................. 68
Niu v. Revcor Molded Prods. Co.,
206 S.W.3d 723 (Tex. App.—Fort Worth 2006, no
pet.) ........................................................................................... 34, 36
Oliver v. Cole Gift Centers., Inc.,
85 F. Supp. 2d 109 (D. Conn. 2000) ........................................ 59, 61
Ortega-Guerin v. City of Phoenix,
No. CV 04-0289-PHX-MHM, 2006 WL 2403511 (D.
Ariz. Aug. 14, 2006)....................................................................... 61
Paris v. Dallas Airmotive, Inc.,
No. Civ.A.3:97CV0208-L, 2001 WL 881278 (N.D.
Tex. July 30, 2001) ................................................................... 60, 61
Perry v. Cohen,
272 S.W.3d 585 (Tex. 2008) .......................................................... 63
Pollard v. E.I. du Pont de Nemours & Co.,
532 U.S. 843 (2001) .....................................................52, 53, 54, 57
Quantum Chem. Corp. v. Toennies,
47 S.W.3d 473 (Tex. 2001) ................................................29, 49, 50
Rankin v. McPherson,
483 U.S. 378 (1987) ................................................................. 70, 76
Reed v. Neopost USA, Inc.,
701 F.3d 434 (5th Cir. 2012) .................................................... 33, 52
Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133 (2000) ....................................................................... 33
xi
Sage St. Assocs. v. Northdale Const. Co.,
863 S.W.2d. 438 (Tex. 1993) ......................................................... 44
San Antonio Water Sys. v. Nicholas,
__ S.W.3d__, No. 13-0966, 2015 WL 1873217 (Tex.
Apr. 24, 2015) .......................................................................... 43, 45
San Antonio Water Sys. v. Nicholas,
441 S.W.3d 382 (Tex. App.—San Antonio 2013), rev’d
on other grounds, __S.W.3d__, No. 13-0966, 2015 WL
1873217 (Tex. Apr. 24, 2015) ........................................................ 54
Scott v. Flowers,
910 F.2d 201 (5th Cir. 1990) .................................................... 66, 69
Shorette v. Rite Aid of Maine,
155 F.3d 8 (1st Cir. 1998) .............................................................. 34
Smith v. Office of Personnel Mgmt.,
778 F.2d 258 (5th Cir. 1985) .................................................... 61, 62
Soto v. LCS Corrections Servs., Inc.,
No. 2:12-CV-130, 2013 WL 4012627 (S.D. Tex. Aug.
5, 2013) ........................................................................................... 60
State v. Lueck,
290 S.W.3d 876 (Tex. 2009) .......................................................... 62
Stotter v. University of Texas at San Antonio,
508 F.3d 812 (5th Cir. 2007) .......................................................... 85
Terrell v. Univ. Texas Sys. Police,
792 F.2d 1360 (5th Cir. 1986) ........................................................ 70
Transcon. Ins. Co. v. Crump,
330 S.W.3d 211 (Tex. 2010) .................................................... 45, 47
xii
Turner v. Perry,
278 S.W.3d 806 (Tex. App.—Houston [14th Dist.]
2009, pet. denied) ........................................................................... 41
Univ. of Houston v. Barth,
403 S.W.3d 851 (Tex. 2013) .......................................................... 62
Univ. of Texas Sw. Med. Ctr. v. Nassar,
__ U.S. __, 133 S. Ct. 2517 (2013) ....................................28, 50, 68
Wal-Mart Stores, Inc. v. Davis,
979 S.W.2d 30 (Tex. App.—Austin 1998, pet. denied) ................ 57
Weeks Marine, Inc. v. Garza,
371 S.W.3d 157 (Tex. 2012) .......................................................... 64
Will. v. Dallas Indep. Sch. Dist.,
480 F.3d 689 (5th Cir. 2007) .................................................... 39, 40
Wilson v. UT Health Center,
973 F2d 1263 (5th Cir. 1992) ......................................................... 72
Statutes
42 U.S.C. § 2000e-5(g)(1) ....................................................................... 55
TEX. GOV’T CODE ANN. § 22.001 ........................................................ xvii
TEX. LAB. CODE ANN. § 21.001 ............................................................. 61
TEX. LAB. CODE ANN. § 21.125 ..................................... 32, 42, 43, 49, 51
TEX. LAB. CODE ANN. § 21.258 ........................................................ 54, 55
TEX. LAB. CODE ANN. § 21.2585 ............................................................ 59
xiii
Rules
TEX. R. APP. P. 38.1 ................................................................................ 63
TEX. R. APP. P. 38.9 ................................................................................ 63
TEX. R. APP. P. 7.1 .................................................................................. 59
TEX. R. CIV. P. 67 .................................................................................... 43
xiv
STATEMENT OF THE CASE
Nature of the Case Donna Davis claimed her employment was
and Parties:
wrongfully terminated by Jefferson County. The
jury found that age was one of several motivating
factors for her termination and found damages in
excess of $1.3 million.
Trial Court: The Honorable Gary Sanderson, 60th District Court,
Jefferson County.
Trial Court’s The trial court signed a judgment, including interest
Disposition:
and attorney fees, awarding over $1.7 million to
Donna Davis.
Court of Appeals: The Fourteenth Court of Appeals: memorandum
opinion by Justice Christopher, joined by Justice
Jamison. Justice McCally dissented concerning
future mental anguish. The Court issued a
supplemental memorandum opinion on denial of
rehearing.
xv
Disposition: The Court of Appeals modified the trial court’s
judgment to eliminate the award of $500,000 for
future mental anguish and affirmed the judgment as
modified. See Jefferson County v. Davis, No. 14-13-
00663-CV, 2014 WL 42621 (Tex. App.—Houston
[14th Dist.] August 28, 2014, pet. filed).
xvi
STATEMENT OF JURISDICTION
The Supreme Court has jurisdiction under Government Code
section 22.001(a)(6) because the Court of Appeals committed an error of
law of such importance to the jurisprudence of the State that it requires
correction. The Court has jurisdiction under Government Code section
22.001(a)(3) because the case involves the construction of a statute,
Chapter 21 of the Labor Code, necessary to a determination of the case.
Governmental immunity to suit is implicated.
xvii
ISSUES PRESENTED
1. The jury found that age was one of several motivating factors for
the termination. Does the “motivating factor” standard require
proof that age animus was actually responsible for the termination,
that is, proof of causation-in-fact? Specifically, are retirement
comments, statements nearly a year before the termination, and a
birthday-cake joke legally sufficient evidence that age was a
motivating factor for the termination?
2. Front pay is not mentioned in the statute. Is front pay recoverable
under Chapter 21 of the Labor Code and, if so, as capped
compensatory damages or as equitable relief? Do the limits on
remedies in the statute determine the extent of the waiver of
governmental immunity to suit?
3. Did the Court of Appeals err by holding that the state statutory cap
is an affirmative defense?
4. Did the County’s assertion in issue seven that Davis is entitled to
“back wages and equitable relief only” – and the separate argument
in issue nine challenging the jury “verdict on damages” as
“outrageous” and the result of a “run-away jury” – preserve
challenges to the award of front pay and to the excessiveness of the
damages?
xviii
5. The County raised issues that were not decided by the Court of
Appeals. TEX. R. APP. P. 53.4. Davis’s statement concerning a
personal debt was not protected speech. No First Amendment
protected right was violated. No policy, custom, or practice of the
County caused any violation of Davis’s federally protected rights.
Imposing civil rights liability on the County based on principles of
respondeat superior is improper as a matter of law. No legally
sufficient evidence supports the jury’s liability findings. The
excessive damages award is “outrageous.” The County asks this
Court to consider these issues and render a take-nothing judgment
on all claims, remand for a new trial, or remand the cause for
consideration of the remaining issues by the Court of Appeals.
xix
STATEMENT OF FACTS
By 2007, the Jefferson County Purchasing Department had a
twenty-year history of turmoil. 1 The most recent crisis involved the
resignation of the Purchasing Agent in early 2007 related to the use of
the County print shop for her personal business;2 she had been reported
by Deb Clark, who was named interim Purchasing Agent after the
resignation.3
Alyce Williams, a Purchasing Department employee, said that
when she started in 1999 she realized it was a very strange atmosphere.4
The office was in turmoil. 5 It involved everyone, including Plaintiff
Donna Davis.6 Williams said there was a lot of discord in the air.7 She
testified that it was always a hindrance to whatever was going on in the
office.8
1
2RR101-102;3RR137.
2
2RR102,104-5;2RR7-8(timing);5RR21(timing);2RR36(under a shadow);2RR58(under a
cloud);2RR59 (early 2007); 5RR13.
3
2RR6-7,59-60;8 RR, Plaintiff’s Ex. 8;3RR328-3239-40;5RR13-15.
4
2RR7.
5
2RR7, 35-36.
6
2RR7.
7
2RR7.
8
2RR8.
When Clark applied to be the permanent Purchasing Agent in
2007,9 Tamara Edwards, another department employee, told Davis that
she supported Clark’s appointment by speaking to Commissioner
Domingue and a District Judge. 10 Edwards asked if Davis was going to
put in a good word with the Purchasing Board.11 Davis did not feel
comfortable talking to the Purchasing Board or the Commissioners
because she did not feel like she really knew them. 12
When Edwards raised the issue again, Davis talked to Alyce
Williams. 13 Davis was concerned that if they did not speak on Clark’s
behalf, Clark might think that they were disloyal and might not trust
them if she became Purchasing Agent. 14
Williams, who attended the same church as Commissioner
Domingue, told Davis that she was going to speak to him. 15 Williams
invited Davis to go with her. 16 They met Domingue at his office before
9
2RR60.
10
5RR21-22.
11
5RR21-22.
12
5RR22.
13
5RR22.
14
5RR22.
15
5RR22-23.
16
5RR22-23.
2
work one day. 17 After exchanging pleasantries, they turned to the
Purchasing Department. 18 In describing the conversation, Williams
testified that they wanted the new Purchasing Agent “to be a person of
character, that the ongoing drama in the department was difficult and we
would like to see someone in charge who was a person of character who
would be a leader.”19 Davis testified that Williams told Domingue they
were hoping the new Purchasing Agent would be a “good leader,”
someone so the “office would be in a better way,” so that things would
“calm down and there wouldn’t be so much turmoil and confusion
leftover from what had been going on.” 20
Domingue interrupted Williams and said that, before they said
whether they liked Clark or not, there was no way Clark was getting the
job.21 He said that there was too much “bad stuff” in Clark’s past. 22 He
said if either of them was Clark’s friend, they would tell Clark to
17
5RR23.
18
5RR23.
19
2RR9.
20
5RR23-24.
21
5RR24.
22
5RR24.
3
withdraw her application.23 Neither Davis nor Williams expressed an
opinion about Clark. 24 Davis testified that she would have said good
things about Clark.25
Neither Davis nor Williams wanted to tell Clark to withdraw her
application.26 About a week later, Williams saw Domingue at church.27
Domingue reiterated that if she was Clark’s friend she should tell her to
withdraw. 28 After this second conversation, Williams told Clark that she
should withdraw her application, 29 and Clark did so. 30 Doug Anderson
was hired as Purchasing Agent in April 2007.31 Clark returned to her job
as Assistant Purchasing Agent.32
Anderson spent twenty years in the Navy and retired in March
2007.33 After he was hired by the County, Anderson spoke to Cary
23
5RR24-25;2RR10.
24
6RR31-33.
25
6RR33.
26
5RR25.
27
5RR26.
28
2RR11;5RR26.
29
2RR11;5RR27.
30
5RR27;2RR11-12;3RR146-47.
31
4RR40-43,72.
32
4RR47.
33
4RR37,40-41,72.
4
Erickson, the County’s Director of Human Resources. 34 Erickson told
Anderson about the various personnel issues that had occurred over the
years. 35 Erickson provided him two large notebooks that Anderson
believed were the official record of the District Attorney’s office
investigations of the Department. 36
On his first day, Anderson met with the Purchasing Board, various
courthouse leaders, and then over a period of several weeks he met
elected officials.37 As he talked to various people, he learned of the
Department’s terrible reputation.38 He was told that he could “blow it
up” and fire all the Department’s employees or try to “play with the
hand that [he] was dealt.” 39 This testimony not only came from
Anderson, but also from Clark, who provided Anderson a list of
employees and her reasons he should not terminate anybody. 40
34
4RR42(director of HR).
35
4RR45-46.
36
4RR45-46.
37
4RR46-47.
38
4RR60.
39
4RR50.
40
3RR44-45;4RR78.
5
Erickson told Anderson that if he was going to fire anyone he
should do it early on.41 Anderson could have fired everyone and started
over with a clean slate, but he did not feel that was best for the County.42
He said: “I tried to play what I was dealt there. I didn’t want to fire
anybody.” 43
On his second day, Anderson met with the staff.44 He testified: “I
introduced myself, explained there would definitely be changes as we
went through here and that I understand that the office had been in
turmoil for roughly 20 years and that was going to stop now, that it was
not gonna be tolerated, that we would not go forward like that.” 45
Anderson conducted one-on-one meetings with the Department
employees. 46 He started with Clark and explained to her that he would
be the liaison with the County and she would run the office. 47
Anderson then began meeting with the other employees. He said
the purpose of the meetings was to learn about the employees, give them
41
4RR50.
42
4RR48.
43
4RR50.
44
4RR46.
45
4RR47.
46
4RR51.
47
4RR54.
6
an opportunity to share any thoughts that they had, and develop a
rapport. 48 He “asked everyone about their age.” 49
Alyce Williams testified that at the individual meetings Anderson
wanted to get to know a little about their background and get to know
them. 50 During her meeting, Williams was asked how long she had been
there and what brought her to Texas.51 She “did a resume for him,” and
he “surmised” that she was a few years older than he. 52 Williams
testified Anderson told her she was old enough to be his older sister.53
She replied, “I guess you are old enough to be my younger brother.”54
When asked at trial how that made her feel, she said that it really “didn’t
really strike [her] at the time.” 55 Anderson asked what she thought he
needed to know about purchasing, and she gave him a letter describing
48
4RR73.
49
4RR72.
50
2RR12.
51
8RR, Plaintiff’s Ex. 1, question 7.
52
8RR, Plaintiff’s Ex. 1, question 7.
53
2RR12.
54
8RR, Plaintiff’s Ex. 1, question 7.
55
2RR13.
7
the problems in the department in the hope that it would help him get the
Department back on track. 56
During Tina Williams’s interview, Anderson asked about her past
jobs, her age, and the year she graduated from high school.57 He also
asked if she was married and her husband’s age.58 He commented that
she had robbed the cradle because she was six years older than her
husband.59 She thought this was an inappropriate comment but also felt
“he was trying to get to know me.” 60
During Davis’s meeting, he said that she was old enough to be his
sister or his oldest sister. 61 He testified he did not mean anything in
particular by the comment—he was trying to say that they were about
the same age and was trying to develop a rapport and get her to talk
about herself.62
56
8RR, Plaintiff’s Ex. 1, question 7;2RR13-14;2RR34.
57
8RR, Plaintiff’s Ex. 3, question 7;2RR75-76.
58
8RR, Plaintiff’s Ex. 3, question 7;2RR75-76.
59
8RR, Plaintiff’s Ex. 3, question 7;2RR75-76.
60
8RR, Plaintiff’s Ex. 3, question 7;2RR75-76.
61
4RR72-73;5RR4.
62
4RR72-73.
8
Davis also recalled that Anderson commented that she was old
enough to retire. 63 Davis testified that she responded: “And I said ‘I’m
not eligible. I’m not old enough. I haven’t been here enough years for
my age and my years of service to equal 75 years, which is the
requirement for retiring.’” 64 In 2007 she would have been eligible to
retire in 2009.65 Alyce Williams testified that Davis told her that she
planned to retire in a few years. 66
Anderson implemented weekly office meetings.67 Davis testified
that in these meetings Anderson referred to Davis’s impending
retirement eligibility. 68 Davis testified she “knew” he was really talking
about her age.69 When asked in written questions if she ever heard
Anderson talk about Davis’s age, co-worker Edwards said: “No.”70
When asked if she heard Anderson speak about Davis’s age, co-worker
63
5RR4-5.
64
5RR5.
65
6RR42-43.
66
2RR38; 8RR, Plaintiff’s Ex. 1, question 4.
67
2RR65(regular);2RR109(weekly).
68
5RR56-57;2RR74.
69
5RR56-57.
70
8RR Defendant’s Ex. 1, question 5.
9
Tina Williams said in her statement: “No, not in front of me.” 71 When
asked if she recalled Anderson talking to Davis about her age at any
time, co-worker Alyce Williams said in her statement: “Not that I can
recall.” 72 Clark, said: “No, I have not heard him talk about her age.” 73
Things changed at the Department. Anderson was in charge and
was a liaison who represented the Department to other departments.74
Clark was more of the day-to-day go-to person.75 Alyce Williams
testified that, having worked for military and civilian employers,
Anderson’s style was more like that of the military, more structured,
formal, with clear-cut duties and responsibilities.76 When asked if
Anderson ran a tight ship, Edwards said that it was different—
sometimes he would close down the office for half a day to clean and
then he would inspect to make sure it was clean.77 He also did not like
the employees playing games at their desks, which they did sometimes. 78
71
8RR Plaintiff’s Ex. 3, question 4;2RR74.
72
8RR Plaintiff’s Ex. 1, question 5.
73
8RR Plaintiff’s Ex. 7, question 2.
74
3RR54;2RR48.
75
2RR48;2RR66.
76
2RR37-38; 2RR82-83.
77
2RR11;2RR82-83.
78
2RR11;2RR82-83
10
At some point, Anderson decided the Department was overstaffed
and he needed to reduce the number of employees.79 By around 3:00
p.m., the staff was not working.80 Sometimes he would let them go
early. 81 Anderson felt that he could reduce the staff by two. 82 He was
hoping to accomplish this over a year or two.83 Possible ways to reduce
staff were to transfer someone, not replace someone who retired, or
delete a position and terminate the person who held the deleted
position.84
Anderson did not intend to reduce the staff by firing someone or
deleting their position.85 His preference was to reduce the staff by
transferring people. 86 Anderson discussed his proposed staff reduction
with Erickson around budget time. 87 Erickson testified that Anderson
“felt like he had too many people in his department, that at the end of the
day, seemed like people were not very busy and he felt like he could get
79
3RR144;4RR59
80
4RR90.
81
2RR111.
82
4RR90-91.
83
4RR93.
84
4RR88-89.
85
4RR92.
86
4RR92.
87
6RR85.
11
rid of one or two people and it would be to the County’s advantage.”88
Erickson suggested that perhaps he should go through a few budget
cycles before making a decision, noting that once a department lost an
employee it was hard to get one back. 89
Anderson continued to believe that the Department was
overstaffed. He did not intend to accomplish staff reduction by firing
anyone. 90 Instead, he started looking for other ways to reduce staff. For
example, he tried to assist one employee move to a higher paying job,
but she did not want to leave. 91
At the same time, Erickson needed to add an H.R. Department
employee to implement a new courthouse security program that required
badges.92 Anderson and Erickson discussed the idea of transferring
someone from Purchasing to H.R.93 Erickson told Anderson that the
only Purchasing Department employee that he would take was Alyce
88
6RR85.
89
6RR85-86.
90
4RR92-93.
91
4RR91-92.
92
6RR86-88.
93
6RR87-88.
12
Williams. 94 Erickson knew Williams from her prior work, and was
familiar with her attention to detail, her knowledge of computers, and
her conscientiousness; he felt she would make an excellent employee. 95
Erickson testified he was the person, not Anderson, who named
Williams as the person to be transferred.96
Anderson spoke with Williams about a possible transfer.97 He told
her the County was going to have a new security position at the
courthouse that involved organizing the program and doing the badges
and he thought she should apply for that position.98 He also explained
that he was downsizing the Department, and she was the only person
that another department would take. 99
Clark, Davis, and Tina Williams did not want Alyce Williams to
leave. 100 While there is no evidence that Anderson decided to transfer
Williams because she was a dwarf or “little person,” in the environment
of the Purchasing Department that became the rumor as the Department
94
6RR87-88.
95
6RR87-88.
96
6RR89.
97
2RR17
98
2RR17.
99
4RR60.
100
3RR115-116; 2RR82.
13
staff sought to reverse Anderson’s decision.101 Alyce Williams did not
believe that her dwarfism was the reason for her transfer.102 She never
heard anything about Anderson allegedly having problems with little
people until after this lawsuit was filed.103
Clark approached Anderson and told him that she did not think it
was a good idea to transfer Alyce Williams. 104 Clark opposed the
transfer because Alyce Williams did all the paperwork and was very
good at her work; Anderson testified Clark told him she opposed the
transfer because she was concerned about the workload.105
Davis testified that when she heard of Williams’s possible transfer,
she went to Clark and asked what she was going to do about it and
volunteered to help.106 She said that Clark declined her offer of
assistance and said that she would handle it.107 Clark never got back in
touch with Davis. 108 Davis never followed up with Clark. 109
101
2RR44-45; 8RR, Plaintiff’s Ex. 3, question1; 8RR, Plaintiff’s Ex. 7, question 1.
102
2RR30; 8RR, Plaintiff’s Ex. 1, question 1; 8RR, Plaintiff’s Ex. 2.
103
2RR44-45.
104
4RR62.
105
3RR151;4RR62.
106
5RR38.
107
5RR38-39.
108
5RR39.
14
One day when Clark was in Commissioner Bo Alfred’s office
discussing another matter, Alfred raised the issue.110 Clark said she was
worried about the workload if Williams was transferred and she did not
feel that transferring Williams was a wise decision. 111 Clark testified
that, during this conversation, Alfred asked if Anderson had a problem
with “little people.”112 Alfred did not tell her who told him that, and she
still does not know. 113 Clark testified that she let Alfred know that
Anderson did not have a problem with little people, but that was a rumor
she constantly heard.114 Alfred said he would look into it.115
Clark subsequently told Tina Williams about the visit to
Commissioner Alfred and said that she went to Alfred because she could
not lose her secretary and “[h]e’s the most radical person I know that
could put a stop to this.” 116 Tina Williams testified Clark told her she
109
6RR53.
110
4RR117;3RR114; 4RR12; 8RR, Plaintiff’s Ex. 7, question 1.
111
3RR114,117.
112
3RR115.
113
4RR12.
114
3RR115-116.
115
3RR134.
116
2RR72; 8RR, Plaintiff’s Ex. 3, question 1.
15
told Alfred that Anderson did not feel comfortable around Alyce
Williams and that he used the “m” [midget] word. 117
Clark, who testified that Anderson had no problems with little
people and that it was absurd to think that he did,118 testified that she
told Tina Williams that Alfred asked whether Anderson was biased
against little people and that she told Alfred that he was not but that she
had heard rumors that he was in the office rumor mill. 119 Tina Williams
testified that after meeting with Commissioner Alfred, Clark told her “I
just sold my soul to the devil,” and “I can’t lose my secretary.” 120 Clark
admitted that she said something like she had “just sold my soul to the
devil.”121
Clark and Tina Williams were worried that word of Clark’s
meeting would get back to Anderson.122 Williams’s husband, Calvin,
worried that his wife would get the blame. 123 The record includes
conflicting testimony about a meeting between Calvin Williams and
117
2RR72; 8RR, Plaintiff’s Ex. 3, question 1.
118
3RR116,160.
119
3RR131.
120
2RR72; 8RR, Plaintiff’s Ex. 3, question 1.
121
3RR132.
122
2RR85-86;3RR135.
123
2RR86(Tina’s testimony);3RR4-8(Calvin Williams);4RR67-71(Anderson).
16
Anderson in a truck in which Williams told (or didn’t tell) Anderson
about Clark’s conversation with Commissioner Alfred about Alyce
Williams and phone calls back and forth between Clark and Tina
Williams and between Tina Williams and her husband, all in an effort to
keep Calvin Williams from telling Anderson about Clark’s meeting with
Alfred. 124
Clark also told Department employee Edwards about the meeting
with Commissioner Bo Alfred.125 Clark never told Edwards why
Williams was being transferred, but Clark told her she went to Alfred
because she didn’t want Alyce to leave, that “we needed that position,”
and she was going to Alfred because he was the most radical person to
stop it.126
Clark was unsuccessful in getting Anderson to change his mind
about Williams’s lateral transfer, and Williams was transferred effective
December 1, 2007.127 Her workload was reassigned. 128 Anderson met
124
3RR5-6;4RR67-68;2RR85-86;3RR134-135.
125
2RR112.
126
2RR112.
127
3RR151;4RR59(date).
128
3RR117.
17
with the Department’s staff, including Alyce Williams, and told them
that Williams was “going to a better place.” 129 He said she was going to
HR and be in charge of the security program. 130 He explained that he, a
District Judge, and Alyce were the only three employees in the entire
County to have the security clearances to make the badges.131
Tension had increased between Clark and Davis related to a loan
that Davis made to Clark in April 2004.132 The $1,265 loan to Clark was
to have been repaid in the fall of 2004.133 But Davis said it wasn’t
repaid. 134 At one point, Tina Williams went to Clark and told her the
reason Davis did not like Clark was because Clark still owed Davis
$300.00.135
Davis claimed she also discussed the loan with Clark because her
husband was “bugging” her about the debt. 136 He would ask Davis when
129
5RR40.
130
5RR41.
131
5RR41.
132
3RR147.
133
4RR15;3RR107-09;5RR42-44.
134
5RR44.
135
3RR147-48.
136
5RR44.
18
Clark was going to pay the balance due.137 Davis would tell Clark, “Deb,
Don said to remember that it was a loan, not a gift.”138 Davis told Clark
that she needed to pay it back because her husband was bugging her
about it.139
Davis’s husband decided he was going to sue Clark for the claimed
balance of $285.00.140 Davis thought if her husband sued Clark, it might
place her job in jeopardy. 141 She thought it best to alert Anderson, and
they had a meeting on December 6, 2007.142 Davis claimed that the sole
purpose of the meeting was to tell Anderson that her husband planned to
sue for the $285.00 that had been past due for over three years. 143 Davis
admitted that, during the meeting, she also told Anderson that Clark was
talking behind his back to people in the Department and maybe even in
the courthouse.144
137
5RR44.
138
5RR44.
139
5RR44.
140
5RR44 -45;3RR170.
141
6RR28.
142
5RR45-47;6RR22-23.
143
6RR24-25.
144
6RR23.
19
According to Anderson, Davis made numerous complaints about
Clark and the last one she mentioned was that Clark owed her $300.145
Davis testified that, during the meeting, Anderson’s demeanor was calm.
He asked her if she had anything else she wanted to say.146
After the meeting with Davis, Anderson talked to Clark, who said
that Anderson “hammered” her pretty hard and told her that this bad
debt should not have been brought into the workplace. 147 He told her to
bring a certified check for $300.00 to work the next day. 148
The next day Anderson met with Clark and Davis. According to
Davis, Anderson handed her a money order for $300.00, had Davis sign
a receipt, and instructed them both never to talk about this again.149
According to Davis, Anderson said: “You are reprehensible. This is the
reason that this department has such a terrible reputation.”150 Davis
145
4RR111.
146
5RR47;6RR26.
147
4RR33.
148
4RR19-20.
149
5RR50-51.
150
5RR51.
20
testified that neither she nor Clark said another word about this and
neither did Anderson.151
Anderson testified he did not believe what Davis told him during
the December meeting, including specifically her criticism of Clark.152
He described Davis’s allegations as upsetting.153
After the meeting, Anderson’s initial thought was that this was not
going to work, and he was going to fire Davis.154 Specifically, he
testified “Donna had come in and leveled a number of accusations
against Deb Clark. And at that point I decided that it was no longer
going to be a worthy working relationship, and I decided to terminate
her at that point.”155 He decided to wait until after the holidays. 156 The
termination was then delayed due to a health issue in Davis’s family in
January and then she was on vacation. March was the earliest time when
she was readily available. 157
151
5RR51.
152
4RR111-112.
153
4RR112.
154
4RR94.
155
4RR58.
156
4RR93-94.
157
4RR93-94.
21
Leading up to Davis’s termination, Anderson was rethinking his
decision and talked with Erickson and the District Attorney’s office.158
He finally decided to terminate her. 159 He accepts responsibility for the
termination and does not blame the District Attorney’s office, the
Purchasing Board, HR, or Clark. 160
Davis was fired on March 3, 2008.161 Anderson testified that if
Davis had not come to his office to talk about Clark she would never
have been fired.162
Clark was not involved in the decision to terminate Davis; that was
Anderson’s decision.163 Clark testified that she told Anderson not to fire
Davis after the $300 was paid.164 Anderson told her that “there would be
no peace in the office.” 165 Clark said that she told Anderson she could
work with Davis.166 She said she never wanted Davis fired—she wanted
158
4RR94-95.
159
4RR95.
160
4RR95-96.
161
3RR64.
162
4RR87.
163
3RR143;4RR76-79.
164
3RR167-68.
165
3RR170.
166
3RR171.
22
things to take their course and she anticipated that in the next few years
Davis would retire. 167
After her termination, Davis filed an EEOC claim alleging that she
was discriminated against due to her sex and age, and in retaliation.168
Department employees were interviewed by an HR employee and signed
sworn statements. 169
Davis sued. A jury awarded her over $1.3 million in damages for
wrongful termination.170 The County appealed, contending essentially
that the evidence was legally insufficient to support the liability findings
and no federally protected rights were violated. 171 The County also
asserted in issue six that the December meeting was a legitimate reason
for terminating Davis, an at-will employee. 172 And the County argued as
part of issue seven that, if the evidence supported the age claim, Davis
could recover “back wages and equitable relief only.” 173 Finally, the
County asserted in issue nine that the damages verdict was so outrageous
167
3RR144.
168
3RR120.
169
8RR, Plaintiff’s Ex. 1,2,3,7,13; 8RR, Defendant’s Ex. 13;6RR74-75.
170
7RR39-40;CR169.
171
Appellant’s Brief, pages 2-3.
172
Appellant’s Brief, page 26.
173
Appellant’s Brief, page 26.
23
it indicated the jury had failed to give the County a fair hearing on the
evidence presented, that the damage verdict was the result of a run-away
jury, and that there was no evidence to support the damages awarded for
future mental anguish.174
The Court of Appeals correctly stated the nature of the case, with
one exception. The County’s explanation for the termination was the
December meeting, and the jury found that Davis’s speaking to
Anderson at that meeting “in regards to the debt owed to her by Deb
Clark” was a “substantial or motivating factor” for the termination. 175
The Court of Appeals did not address the reasons, other than age, the
jury found were substantial or motivating factors.
The Court of Appeals held that legally sufficient evidence
supported the jury’s finding of age discrimination. The Court held that
no evidence supported the jury’s assessment of damages for future
mental anguish and modified the judgment accordingly. On motion for
174
Appellant’s Brief, pages 3, 32-36;CR143.
175
CR131, Question 7D.
24
rehearing, the Court held any other challenge to the award of damages
was waived and the award did not concern immunity to suit.
25
SUMMARY OF ARGUMENT
The jury found several reasons for the termination. 176 One was
age. 177 Another was the reason given by the County: the December
meeting. 178 When the record establishes that the employer would have
terminated the employee in the absence of the impermissible motivating
factor, a court may not award damages. The evidence is legally
insufficient to establish that age animus was responsible for the
termination. Damages should not have been awarded against the County.
Absent a statutory remedy permitting the recovery of the excessive
amounts awarded by the jury, the County retains governmental
immunity. To the extent of the remedies provided in the statute, Chapter
21 of the Labor Code is a limited waiver of governmental immunity to
suit. The statute makes no mention of front pay as a remedy. If
recoverable under the statute, front pay is an equitable remedy based on
a finding – missing here – that reinstatement is not feasible.
Alternatively, any award of compensatory damages should be capped.
176
CR125,127,131.
177
CR125.
178
CR131, Question 7D.
26
All of the remaining claims Davis asserts require proof of but-for
causation. The evidence is legally insufficient to establish that causation.
The evidence establishes she would have been terminated anyway as a
result of the December meeting. The County’s reason for terminating
Davis was a permissible reason under the law. Her statements at the
meeting were not protected speech. Jefferson County requests that the
Court reverse the judgment and render a judgment that Davis take
nothing from Jefferson County.
27
ARGUMENT
I. The “motivating factor” standard requires proof that age
animus was responsible for and a legal cause of the
termination. Retirement comments, statements nearly a
year before the termination, and a birthday-cake joke are
not legally sufficient proof that age was a motivating factor
in the termination.
The evidence does not support the judgment against the County.
The evidence is legally insufficient to support the finding that Davis’s
termination was the result of age discrimination. She was terminated
because of a December meeting that had nothing to do with age.
The jury found several substantial or motivating factors for the
termination, including the County’s explanation: the December
meeting. 179 The Court of Appeals did not address all the findings. The
statutory claim of age discrimination requires proof “that the defendant’s
conduct did in fact cause the plaintiff’s injury.” Univ. of Texas
Southwestern Med. Ctr. v. Nassar, __U.S. __, 133 S. Ct. 2517, 2524
(2013). A causation analysis includes consideration of the existence and
the extent of the effect of another factor in producing the result. See
Bostic v. Georgia-Pacific Corp., 439 S.W.3d 332, 345 (Tex. 2014). A
179
CR125,127,131(Question 7D).
28
take-nothing judgment should be rendered for the County because the
evidence conclusively establishes that age discrimination was not a legal
cause of Davis’s termination.
A. The evidence is legally insufficient to establish that
Davis’s termination was the result of age discrimination.
There are “two alternative methods of proof” in an age
discrimination case under the state statute. Mission Consol. Ind. School
Dist. v. Garcia, 372 S.W.3d 629, 634 (Tex. 2012). One requires proof of
pretext. See id.; Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 476
(Tex. 2001). The other requires proof of “discriminatory intent via direct
evidence of what the defendant did and said.” Garcia, 372 S.W.3d at
634. The evidence in this case is legally insufficient under either
method.
1. No pretext
Davis’s supervisor, Doug Anderson, testified that he decided to
terminate Davis as a result of the December meeting. 180 That
explanation for the termination was not a pretext for discrimination. See
McCoy v. City of Shreveport, 492 F.3d 551, 557 (5th Cir. 2007). The
180
4RR94.
29
jury did not find that the explanation was false. To the contrary, the jury
found the December meeting to be a true reason for the termination.181
That finding by the jury was correct. Davis testified she thought
her husband’s threatened suit against Clark for failing to repay a
personal loan would place her job in jeopardy.182 That is why she
decided to meet with Anderson in December. 183 Anderson testified that
he did not believe what Davis told him during the December meeting,
including specifically her numerous criticisms of Clark.184 He described
Davis’s allegations as upsetting.185 Davis testified he used a harsher
word: “reprehensible.” 186
Anderson decided to terminate her employment. 187 He decided to
wait until after the holidays.188 The termination was then delayed due to
181
CR131, Question 7D.
182
6RR28.
183
5RR 45-49.
184
4RR111-112.
185
4RR112.
186
5RR51.
187
4RR87, 94-95.
188
4RR93-94.
30
a health issue in Davis’s family in January and then she was on vacation;
March was the earliest time when she was readily available.189
Not only did Anderson testify and the jury find that Davis was
fired as a result of the December meeting, Davis asserted on appeal that
the meeting was a reason for the termination. In Appellee’s Brief in the
Court of Appeals, she cited her testimony concerning the events that
occurred the day after her December meeting with Anderson and then
stated:
Rather than become angry at Clark for an
egregious violation of common sense and basic
management rules, Anderson took out his
wrath on Davis. And, on March 3, 2008, he
fired her. 190
And, again, in response to the County’s motion for rehearing, Davis
acknowledged that the December meeting “was a true reason.”191
The jury found that the December meeting where the disputed debt
was discussed was a substantial or motivating factor for the
189
4RR93-94.
190
Appellee’s Brief, page 9.
191
Response, page 12 (emphasis in Response).
31
termination. 192 The statute provides that “[i]n a complaint in which a
complainant proves a violation under Subsection (a) and a respondent
demonstrates that the respondent would have taken the same action in
the absence of the impermissible motivating factor,” the court “may not
award damages or issue an order requiring an admission, reinstatement,
hiring, promotion, or back pay.” TEX. LAB. CODE ANN. §21.125(b). The
provision assumes that the plaintiff first provides legally sufficient
evidence of an improper motive and “proves a violation.” Here, the
evidence is legally insufficient.
The Court of Appeals rejected the County’s legal sufficiency
challenge. But the court’s causation analysis was wrong. Regardless of
whether Davis and Clark actually could work together or whether
Anderson made a poor management decision, the evidence conclusively
establishes Anderson based his decision on the December meeting. The
jury found the County’s reason was true. The County’s explanation was
not a pretext. Davis did not meet the first method of proof—that of
proving pretext.
192
CR131, Question 7D.
32
2. No direct evidence
Nor did Davis satisfy the second method of proof—proof by direct
evidence. As the Court of Appeals noted, to serve as direct evidence of
discrimination, statements must be close in time to the employment
decision and related to the decision. A defendant’s comments that are
not close in time, or that are not related to the decision, cannot be
considered as direct evidence. AutoZone, Inc. v. Reyes, 272 S.W.3d 588,
592-93 (Tex. 2008) (per curiam).
The Court of Appeals cited Reeves as support for considering
statements made nearly a year before the termination. But Reeves was a
pretext case, not a direct evidence case. See Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 148 (2000). Since Reeves, the Fifth
Circuit continues to apply the same four-part test this Court does “when
a remark is presented as direct evidence of discrimination apart from the
McDonnell Douglas framework.” Arismendez v. Nightingale Home
Health Care, Inc., 493 F.3d 602, 608 n.4 (5th Cir. 2007); see also Reed
v. Neopost USA, Inc., 701 F.3d 434, 442 n.5, 6 (5th Cir. 2012).
33
Statements “may serve as evidence of discrimination only if they
are (1) related to the employee’s protected class, (2) close in time to the
employment decision, (3) made by an individual with authority over the
employment decision, and (4) related to the employment decision at
issue.” AutoZone, Inc., 272 S.W.3d at 593 (emphasis added). The only
direct comments about Davis’s age were at the initial one-on-one
interview when Anderson began his new job as purchasing agent. These
statements are too remote in time to be considered evidence that age was
a motivating factor for the termination nearly a year later. See generally
Niu v. Revcor Molded Prods. Co., 206 S.W.3d 723, 731 (Tex. App.—
Fort Worth 2006, no pet.). As the Court of Appeals suggests, the
statements were not made in the direct context of her termination. The
Court of Appeals erred in considering as evidence statements made
nearly a year before her termination and not related to her termination.
The comments about retirement eligibility do not support the jury’s
finding. See, e.g., Shorette v. Rite Aid of Maine, 155 F.3d 8, 13 (1st Cir.
1998); Barth v. Hoffmann-La Roche, Inc., No. 05-01-00302-CV, 2002
WL 1225684, at *4 (Tex. App.—Dallas June 6, 2002, no pet.) (not
34
designated for publication). Retirement comments occur as a legitimate
part of a workplace environment. Davis was approaching eligibility for
retirement and had discussed retirement with at least one co-worker.193
An employee considering retirement is not discriminated against
because she is treated as considering retirement. A supervisor who
mentions the future retirement of an employee and the availability to that
employee of information at routinely scheduled County meetings
comments on retirement, not age.
Davis testified that she interpreted those repeated comments as
age-related. 194 From their statements, apparently others at the meetings
did not make that assumption. 195 Davis’s subjective interpretation is not
proof, and ambiguous statements indirectly related to age are not direct
evidence. See M.D. Anderson Hosp. and Tumor Inst. v. Willrich, 28
S.W.3d 22, 25 (Tex. 2000) (per curiam); AutoZone, 272 S.W.3d at 592-
93.
193
2RR32:14-20;38:4-13;3RR144:1-4;6RR42-43.
194
5RR56-57.
195
8RR Plaintiff’s Ex. 1, question 5; Plaintiff’s Ex. 3, question 4; Plaintiff’s Ex. 7, question 2;
Defendant’s Ex. 1, question 5.
35
The Court of Appeals cites Alyce Williams’s testimony concerning
Anderson’s first staff meeting. That meeting occurred almost a year
before the termination. See generally Niu, 206 S.W.3d at 731. Tina
Williams’s statement, also cited by the Court of Appeals, does not
indicate the dates of the staff meetings to which the statement refers.196
Her statement does indicate, however, that the comments included
references to information meetings scheduled by the County.197 Those
retirement comments were not related to or shown to be close in time to
the termination decision.198
The Court of Appeals cites a birthday cake joke as an indirect age-
related comment. A reasonable juror would recognize the remark as an
attempt at humor. See City of Keller v. Wilson, 168 S.W.3d 802 (Tex.
2005) (reasonable juror standard); AutoZone, 272 S.W.3d at 592-93.
Davis admits this could be “laughed off as good-natured joking,” but she
saw this as an instance of intolerance coming from Anderson.199 A
196
8RR, Plaintiff’s Ex. 3, question 5.
197
8RR, Plaintiff’s Ex. 3.
198
8RR, Plaintiff’s Ex. 3.
199
Appellee’s Brief, page 6 n.3.
36
subjective belief that a joke relates to a termination decision is not direct
evidence. See Willrich, 28 S.W.3d at 25.
Neither method of proof was satisfied. The evidence is legally
insufficient to support a finding that Davis was terminated due to age
discrimination. The Court should render judgment that Davis recover
nothing on the age claim.
3. A permissible reason
Davis argues the December meeting was not a permissible reason
for the termination and therefore cannot be considered in the analysis of
her age claim. She claims her speech regarding the debt was protected
speech. But it was not. The County did not terminate Davis for an
impermissible reason.
“The inquiry into the protected status of speech is one of law, not
fact.” Connick v. Myers, 461 U.S. 138, 148 n.7 (1983). The December
2007 meeting had nothing to do with public official misconduct. The
United States Supreme Court has explained that “government offices
could not function if every employment decision became a constitutional
matter.” Connick, 461 U.S. at 143. In order for the December meeting to
37
be an impermissible reason for termination, Davis would have had to
prove that (1) she spoke as a citizen rather than as a public employee; (2)
she spoke on a matter of public concern to the community; and (3) her
interest in speaking on the matter of public concern outweighed those of
the County in maintaining efficiency. Graziosi v. City of Greenville
Mississippi, 775 F3d 731, 735 (2015).
Davis met with Anderson in December because her husband
intended to sue Clark for nonpayment of a personal loan and she thought
this would place her job in jeopardy. This was a dispute between two
employees under Anderson’s supervision.200 Anderson testified to other
job-related criticisms Davis made of Clark at the meeting; Davis
admitted raising a job-related criticism of Clark. As addressed further in
issue five, the evidence is legally insufficient to support the jury’s
findings in response to questions four, five, and six that the December
meeting concerned matters of political, social or other concern to the
community, were matters of public concern, were not purely job-related,
and did not disrupt the efficiency of the office. The December meeting
200
5RR45-49
38
did not involve matters of political, social, or other concern to the
community. They involved Anderson’s management responsibilities for
the Department.
The termination was not a violation of the Constitution. The
Supreme Court has explained the matter in this way:
When employee expression cannot be fairly considered as
relating to any matter of political, social, or other concern to
the community, government officials should enjoy wide
latitude in managing their offices, without intrusive oversight
by the judiciary in the name of the First Amendment. Perhaps
the government employer’s dismissal of the worker may not
be fair, but ordinary dismissals from government service
which violate no fixed tenure or applicable statute or
regulation are not subject to judicial review even if the
reasons for the dismissal are alleged to be mistaken or
unreasonable.
Connick, 461 U.S. at 146. The Court has explained that “the First
Amendment does not prohibit managerial discipline based on an
employee’s expressions made pursuant to official responsibilities.”
Garcetti v. Ceballos, 547 U.S. 410, 424 (2006).
Activities “undertaken in the course of performing one’s job,”
therefore, are not protected speech. In Williams v. Dallas Indep. Sch.
39
Dist., 480 F.3d 689, 693 (5th Cir. 2007), the Court analyzed the case-law
and concluded:
These cases, when viewed as a whole, distinguish between
speech that is “the kind of activity engaged in by citizens
who do not work for the government,” Garcetti, 126 S. Ct. at
1962, and activities undertaken in the course of performing
one's job. Activities undertaken in the course of performing
one's job are activities pursuant to official duties. Id. at 1960.
Davis’s statements at the December meeting were not protected by the
First Amendment because “[r]estricting speech that owes its existence to
a public employee's professional responsibilities does not infringe any
liberties the employee might have enjoyed as a private citizen.” Garcetti,
547 U.S. at 421–22; see Lane v. Franks, __U.S. __, 134 S. Ct. 2369, 2379
(2014); Gibson v. Kilpatrick, 773 F.3d 661, 666-70 (5th Cir. 2014)
petition for cert. filed, (U.S. Mar. 13, 2015)(No. 14-1112).
Nor did her statements touch upon a matter of public concern. She
was speaking about a personal loan she had offered to make to her
supervisor and her husband’s soon-to-be-filed lawsuit. These were
purely private concerns. See Davis v. McKinney, 518 F.3d 304, 312 (5th
40
Cir. 2008); Turner v. Perry, 278 S.W.3d 806, 816 (Tex. App.—Houston
[14th Dist.] 2009, pet. denied).
And finally, any interest in expressing the concern was outweighed
by the County's interest in promoting the efficiency of the public
services the County was attempting to perform through its employees in
the Department. See id; see also Graziosi, 775 F3d at 740-41. Anderson
acted within his discretion in concluding that the workplace could not
function as an efficient environment with her continued employment.
The First Amendment does not empower Davis to
“constitutionalize the employee grievance.” Garcetti, 547 U.S. at 420
(quoting Connick, 461 U.S. at 154). Her statements at the December
meeting were not constitutionally protected and her termination as a
result of the meeting was not a constitutional violation. As a matter of
law, the County’s reason for the termination was a permissible reason.
41
B. The record establishes that the termination would have
occurred in the absence of an impermissible motivating
factor. The December meeting, not any impermissible
factor, was the cause of the termination. On this record,
damages cannot be awarded against the County.
A no-evidence review includes a determination of those facts
conclusively established. See City of Keller v. Wilson, 168 S.W.3d 802,
814-15 (Tex. 2005). The record conclusively establishes that Davis was
terminated because of the December meeting and was terminated for
that reason alone. 201
Furthermore, the age-discrimination statute does not anticipate the
recovery of damages when the employer demonstrates the termination
would have occurred in the absence of the impermissible motivating
factor even if age was also a motivating factor. TEX. LAB. CODE ANN.
§21.125(b). Because the record establishes as a matter of law Davis was
terminated for a permissible reason, and would have been terminated for
that reason alone, damages are not recoverable under the statute.
201
4RR87.
42
The County did not plead Section 21.125(b). 202 But that is not
dispositive of the issue of plaintiff’s entitlement to damages on this
record. See TEX. R. CIV. P. 67. Plaintiff requested and obtained a jury
finding that in legal effect establishes she would have been fired for a
permissible reason. The issue was tried by consent. Moreover, as part of
the pretext and causation analysis, the issue concerns the legal
sufficiency of the evidence to support a causal link between age
discrimination and Davis’s entitlement to damages against the County
and implicates the County’s immunity to suit for damages. See generally
San Antonio Water Sys. v. Nicholas, __ S.W.3d__, No. 13-0966, 2015
WL 1873217 (Tex. Apr. 24, 2015) (legal sufficiency review and
immunity to suit). Conclusive evidence is given effect in a legal
sufficiency review. The evidence conclusively establishes the December
meeting was the reason for the termination.
1. Trial by consent
When a plaintiff requests and obtains a jury finding that in legal
effect establishes she would have been terminated in the absence of an
202
4RR87.
43
impermissible motivating factor, the entitlement-to-damages issue has
been tried by consent. See Ingram v. Deere, 288 S.W.3d 886, 893 (Tex.
2009); Sage St. Assocs. v. Northdale Const. Co., 863 S.W.2d. 438, 445-
46 (Tex. 1993). In Ingram, this Court explained that “[w]hen both
parties present evidence on an issue and the issue is developed during
trial without objection, any defects in the pleadings are cured at trial, and
the defects are waived.” Ingram, 288 S.W.3d at 893. The jury verdict
should be given the same effect it would be given had the County
pleaded that Davis was fired as a result of the December meeting. If that
reason is a permissible one, and it is, the County has established that she
would have been terminated anyway for a permissible reason. Under the
circumstances, damages are not recoverable as a remedy whether or not
age was a motivating factor. TEX. LAB. CODE ANN.§ 21.125(b).
2. Cause-in-fact
The jury was instructed that the plaintiff had to prove cause-in-fact
and proximate cause to recover damages. In construing a different
statute, this Court has noted: “we cannot conceive of causal connection
44
analysis without consideration of cause in fact.” Transcon. Ins. Co. v.
Crump, 330 S.W.3d 211, 224 (Tex. 2010).
In the court’s charge, cause-in-fact was defined as meaning that
defendant’s conduct must have played a “substantial part” in causing the
injury, and proximate cause was defined as requiring the damages be
foreseeable. 203 The jury was also instructed that to prove Davis’s speech
was a “substantial or motivating factor” meant that plaintiff must prove
it was “a substantial consideration that made a difference in or
influenced the Defendants’(s’) decisions.”204
The correctness of the jury instructions “ultimately has no bearing
on whether the trial court had jurisdiction.” San Antonio Water Sys.,
2015 WL 1873217, at *5. If the instructions are insufficient as a matter
of law to define cause-in-fact, proximate cause, substantial factor, or
motivating factor, this Court is not bound by how those terms were
defined in the jury charge in a suit against a governmental entity. See id.
“Sovereign immunity can be waived only by statute.” Id.
203
CR123-24.
204
CR123.
45
When specifically asking the jury about age in Question 1, the
court instructed the jury in the charge that “a motivating factor” means
that age was “a reason” for the termination. 205 Otherwise, the court
charge used the terms “substantial” and “motivating” interchangeably.206
Those terms come from Mt. Healthy City Sch. Dist. Bd. of Educ. v.
Doyle, 429 U.S. 274 (1977), a case where, as here, a public employee
claimed retaliation for the exercise of a First Amendment right to free
speech.
The Court in Mt. Healthy held that the plaintiff had the initial
burden “to show that his conduct was constitutionally protected, and that
this conduct was ‘a substantial factor’ or to put it in other words, that it
was a ‘motivating factor’” in the defendant’s decision. Mt. Healthy, 429
U.S. at 287. The burden then shifted to the defendant to show that it
would have made the same decision in the absence of the protected
conduct. Id. Notably, the Supreme Court used “substantial factor” and
“motivating factor” as interchangeable terms. Id. at 287.
205
CR125.
206
CR131.
46
The charge in this case used the terms “substantial” and
“motivating” as though they mean the same thing. 207 And they should.
With her age claim, regardless of remedies available, the plaintiff
initially is required to show that an impermissible reason was a
motivating factor—or in other words, a substantial factor—in the
termination decision. She did not meet her burden. But even if she had,
the December meeting—a permissible reason—was a substantial factor
for the termination.
This Court has defined the term “substantial factor” in other
contexts. In Crump, the Court explained that “substantial” denotes that,
to rise to the level of cause in a legal sense, “the act or event must be
such that reasonable jurors would identify it as being actually
responsible for the ultimate harm.” Crump, 330 S.W.3d at 224. In Bostic,
this Court applied a “substantial factor” test for causation in a
mesothelioma case. Bostic v. Georgia-Pacific Corporation, 439 S.W.3d
332 (Tex. 2014). The Court explained that “[w]hile but for causation is a
core concept in tort law, it yields to the more general substantial factor
207
See, e.g.,CR127,131.
47
causation in situations where proof of but for causation is not practically
possible or such proof otherwise should not be required.” Id. at 344.
Substantial factor and but-for are “overlapping concepts” and
“application of those tests usually lead to the same result.” Id. at 342.
This Court has noted that in some situations an actor’s conduct is not a
but-for cause “because another force would have caused the harm
anyway.” Id. at 345 A “substantial factor” finding means the termination
would have resulted from that factor alone. Id at 345. Because the
evidence conclusively establishes and the jury has found that the
December meeting was a substantial factor—or a motivating factor—
damages are not recoverable in her age claim or, as is addressed further
in issue five, under her other claims. The termination would have
resulted from the December meeting alone.
3. Causation in a pretext case
As part of Davis’s proof in her age claim, in the absence of direct
evidence, she was required to establish that the County’s reason for the
termination was a pretext. But as the County argued in its brief in the
Court of Appeals,
48
It is interesting to note that at the urging of
Plaintiff’s attorney in closing argument the jury
found that the Plaintiff speaking to Doug
Anderson about the debt owed to her by Deb
Clark was a substantial or motivating factor in her
termination. (Jury Question No. 7). There was
absolute agreement in the record as to that fact.
If that speech then is not protected speech, and it
most surely is not, then the jury has agreed to a
legitimately based explanation for the
208
termination of this at-will employee.
In legal effect, the jury’s finding in response to question 7 establishes a
“legitimately based explanation for the termination.” 209
In Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 480 (Tex.
2001), the Court considered the standard of causation in a pretext age
discrimination case under the state statute, Texas Labor Code section
21.125. Stating that “[i]n the absence of meaningful Supreme Court
authority, we therefore enforce the statute’s plain meaning[,]” this Court
held that the “plain meaning of this statute establishes ‘a motivating
factor’ as the plaintiff’s standard of causation in a TCHRA unlawful
employment practice claim, regardless of how many factors influenced
the employment decision.” Id. at 480.
208
Appellant’s Court of Appeals Brief, p. 26.
209
Id.;CR131.
49
After Quantum, the United States Supreme Court wrote on the
issue of causation under federal age discrimination law. In Gross, the
Supreme Court held that “a plaintiff bringing a disparate-treatment claim
pursuant to the ADEA must prove, by a preponderance of the evidence
that age was the ‘but-for’ cause of the challenged adverse employment
action.” Gross v. FBL Financial Services, Inc., 557 U.S. 167, 180
(2009). The Court added: “The burden of persuasion does not shift to the
employer to show that it would have taken the action regardless of age,
even when a plaintiff has produced some evidence that age was one of
the motivating factors in that decision.” Id.
The Court reiterated its holding in Gross in its opinion in Nasser,
stating that “[i]n Gross, the Court concluded that the ADEA requires
proof that the prohibited criterion was the but-for-cause of the prohibited
conduct.” Univ. of Texas Southwestern Medical Center v. Nassar,
__U.S. __, 133 S. Ct. 2517, 2523 (2013). In Nassar, the Court explained
that causation-in-fact is a standard requirement of any tort claim,
including “federal statutory claims of workplace discrimination.” Id. at
2524-25.
50
The Court in Gross noted that a federal age-discrimination claim
proceeds under a different statute than other status-based discrimination
claims. Gross, 557 U.S. at 173-74. Chapter 21 of the Labor Code,
however, governs an age claim in the same manner as it does other
status-based discrimination claims. TEX. LAB. CODE ANN. § 21.125.
The Fifth Circuit has noted that this Court has not revisited the
standard of proof since Gross, and that the law apparently remains
unsettled under Texas law. The Fifth Circuit explained:
In light of Gross, one Texas court of appeals has
noted that Texas law is “unsettled” with respect to
whether or not the “but for” standard applies to
pretext-based age-discrimination claims under the
TCHRA. Hernandez, 350 S.W.3d at 284 (citing
Houchen v. Dallas Morning News, No. 3:08–CV–
1251–L, 2010 WL 1267221, at *11–12 (N. D.
Tex. Apr. 1, 2010)). The Hernandez court
determined that it does not, noting that the
statutory text of the TCHRA, unlike the ADEA,
expressly includes the “motivating factor”
standard. Id. at 285; see Tex. Lab. Code Ann. §
21.125(a). We reached the same conclusion in an
unpublished opinion. Jackson v. Host Int'l, Inc.,
426 Fed. Appx. 215, 219 n. 2 (5th Cir.2011)
(unpublished) (per curiam). Although we note the
issue here, we need not address it because Reed's
evidence fails to create a genuine issue of material
fact under either causation standard.
51
Reed v. Neopost USA, Inc., 701 F.3d 434, 440 n.3 (5th Cir. 2012).
A reasonable application of the state statute in a pretext case, a
case in which there is no direct evidence of discrimination, would
require that the age discrimination be the but-for cause in the employer’s
decision. But-for causation is, for example, the understood causation
standard in the burden-shifting Mt. Healthy cases. See Hartman v.
Moore, 547 U.S. 250, 260 (2006).
In this case, as in Reed, Plaintiff’s claim fails under either a “but
for” or “motivating factor” causation standard. Furthermore, Davis has
affirmatively established through the jury’s finding in answer to question
7 that she would have been terminated for a permissible reason
regardless of any other factor. Davis is not entitled to a recovery of
damages from Jefferson County.
II. Davis was not entitled to recover front pay.
“[F]ront pay is simply money awarded for lost compensation
during the period between judgment and reinstatement or in lieu of
reinstatement.” Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843,
52
846 (2001). The trial court awarded Davis $356,955 in front pay.210 The
Court of Appeals affirmed that award. That award was erroneous in the
first instance because front pay is not recoverable under Chapter 21 of
the Texas Labor Code.
A. Front pay is not recoverable under Chapter 21 of the
Texas Labor Code.
In rejecting the County’s argument that Davis can recover “back
wages and equitable relief only” and not front pay, the Court of Appeals
cited sections 21.2585(a) and (d) of the Texas Labor Code. Jefferson
County v. Davis, No. 14-13-00663, 2014 WL 4262184 *8 (Tex. App.—
Houston [14th Dist.] Aug. 28, 2014, pet. filed) (memorandum opinion).
That cite suggests that the court of appeals concluded front pay is
recoverable as compensatory damages. That is not the case under federal
law, and other Texas courts of appeals have followed the federal law.
In Pollard, the United States Supreme Court held that under Title
VII front pay does not constitute an element of compensatory damages.
Pollard, 532 U.S. at 852. The Court explained that front pay is
recoverable as equitable relief and “front pay is simply money awarded
210
CR155 (future pecuniary loss and future loss of benefits).
53
for lost compensation during the period between judgment and
reinstatement or in lieu of reinstatement.” Id. at 846.
Subsequently, several Texas courts followed that reasoning and
concluded that future lost earnings awards are not compensatory damage
awards and so are not subject to the caps under the state statute. See,
e.g., San Antonio Water Sys. v. Nicholas, 441 S.W.3d 382, 401-02 (Tex.
App.—San Antonio 2013), rev’d on other grounds, __S.W.3d__, No. 13-
0966, 2015 WL 1873217 (Tex. Apr. 24, 2015); Hoffman-La Roche, Inc.
v. Zeltwanger, 69 S.W.3d 634, 653 (Tex. App.—Corpus Christi 2002),
rev’d on other grounds, 144 S.W.3d 438 (Tex. 2004). Following federal
authority, Texas courts consider front pay to be equitable relief available
under section 21.258(b) of the Texas Labor Code. Nicholas, 441 S.W.3d
at 404 (citing cases).
But the language of the federal statute construed by the U.S.
Supreme Court differs significantly from the language of the state statute
with respect to equitable relief. The federal statute gives federal courts
broad authority to grant equitable relief, stating that “the court may
enjoin the respondent from engaging in such unlawful employment
54
practice, and order such affirmative action as may be appropriate, which
may include, but is not limited to, reinstatement . . . or any other
equitable relief as the court deems appropriate.” 42 U.S.C. § 2000e-
5(g)(1) (emphasis added).
The Texas statute states that a court may “order additional
equitable relief as may be appropriate,” but then lists the specific types
of “additional equitable relief” available under the statute. TEX. LABOR
CODE ANN. § 21.258(a)(2), (b). Front pay is not included in the list of
additional equitable relief contained in section 21.258. Moreover, unlike
the federal statute, the state statute does not include the phrases “but is
not limited to” and “any other equitable relief.” Compare TEX. LAB.
CODE ANN. § 21.258 with 42 U.S.C. § 2000e-5(g)(1) (2014). If the
Texas Legislature had intended front pay to be recoverable, front pay
would have been listed as one of the remedies available under section
21.258(b), or the Legislature would have included phrases from the
federal statute such as “any other equitable relief” and “but is not limited
to.”
55
Unlike the federal statute, then, the state statute does not permit the
courts to craft additional equitable relief not listed in the statute. Front
pay is not mentioned in the Texas statute or authorized by the language
of the statute and so any award in this case must be reduced by the
$356,955 awarded as front pay.
B. If front pay is an available equitable remedy under
Chapter 21, it is not recoverable in this case as a matter of
law.
If this Court finds that front pay is an available equitable remedy,
then front pay should be limited to a reasonable period sufficient for a
plaintiff “to reestablish her place in the job market.” Goss v. Exxon
Office Sys. Co., 747 F.2d 885, 889 (3d Cir. 1984) (“[F]ront pay: that is
an award for a reasonable future period required for the victim to
reestablish her rightful place in the job market.”). Front pay is not
recoverable as a matter of law based on the evidence in this case.
The judgment awards damages as though the termination of
Davis’s employment with the County would have prevented her from
ever reestablishing her place in the job market. 211 But that is not
211
CR155
56
supported by the evidence. Davis did not show that she was rendered
permanently unemployable as a result of the termination, and she did not
obtain a finding at trial that reinstatement or reemployment was not
feasible. See Wal-Mart Stores, Inc. v. Davis, 979 S.W.2d 30, 45 (Tex.
App.—Austin 1998, pet. denied) (“To recover front pay, a plaintiff must
show that reinstatement is not feasible as a remedy.”).
The economic damage award is based on the speculative testimony
of Davis’s nephew, who lacked knowledge concerning the retirement
program or salary policies at the County.212 His calculations assume a
guaranteed job through age 65 or 70, allowing the jury to guess how
long Davis would remain employed, though she was an at-will employee
considering retirement; the jury’s use of the age 70 is based on
speculation.213 The witness’s calculations unreasonably assumed no
earnings from any other source of employment. 214 Pollard, 532 U.S. at
849-854.
212
4RR128-130.
213
4RR121-130.
214
4RR121-130;8RR Plaintiff’s Exhibit 14.
57
Davis’s nephew also assumed annual three percent increases in
salary without checking publicly available data to see what the actual
increase had been historically. 215 At first he offered no testimony on
present value. 216 After cross-examination on the issue, he was called
again the next day by Davis’s counsel, and then testified that the
damages could be reduced to present value using a one percent rate of
return, though he did not check the historical rate of return on
investment and did not modify his damage chart. 217 His opinion is
baseless speculation. Baseless opinions will not support a judgment even
when admitted without objection. See City of San Antonio v. Pollock,
284 S.W.3d 809, 816 (Tex. 2009). The award is not supported by legally
sufficient evidence.
Davis died shortly after the judgment was signed.218
Reinstatement as a remedy does not survive, so logically a claim for
front pay in lieu of reinstatement should not survive. But see generally,
Estate of Martineau, 203 F3d 904, 912-13 (5th Cir. 2000)(referencing
215
4RR126-127;6RR56-57.
216
4RR126-131.
217
6RR56-57; 8RR Plaintiff’s Ex. 14, 17.
218
Appellant’s Brief, page1, n.1.
58
death); see also TEX. R. APP. P. 7.1. But regardless of the survivability
of the remedy, the front pay award in this case is not supported by the
evidence, is excessive and is not appropriate, reasonable, or equitable.
Whether front pay is considered equitable relief or compensatory
damages, on this record the judgment grants a remedy against the
County in excess of that permitted by the statutory waiver of immunity
to suit.
III. Several federal courts and a Kentucky appellate court have
determined that the federal statutory damages cap is an
integral part of the statutory scheme and is not an affirmative
defense that must be pleaded. The Court of Appeals erred by
holding that the state statutory cap is an affirmative defense.
If the Court concludes front pay is recoverable as compensatory
damages, the damages are subject to the $300,000 cap under TEX. LAB.
CODE ANN. § 21.2585 (a), (d). The cap automatically applies because it
is an integral part of the statutory scheme under which Davis sought
damages. See Giles v. Gen. Elec. Co., 245 F.3d 474, 491 n.32 (5th Cir.
2002); Oliver v. Cole Gift Centers., Inc., 85 F. Supp. 2d 109, 111-12 (D.
Conn. 2000).
59
The Court of Appeals held the County waived the caps and
challenges to the damages by not pleading or arguing the caps or
damage findings before the motion for rehearing. The court cited
opinions by other courts of appeals, and two opinions by this Court, one
distinguishing between immunity to suit and immunity to liability, and
another referring to a damages cap in another statute generally as a
liability limitation.
But the caps and other limitations on remedies in the
discrimination statutes are an integral part of the statutory structure
defining the power of a court to remedy discrimination. Giles, 245 F.3d
at 491 n.32 (5th Cir. 2001). Although not reaching the issue itself, the
Fifth Circuit noted another court had “reasoned persuasively” that the
federal statute’s cap is not an affirmative defense but instead is “an
integral part of the statutory scheme under which the plaintiff sought
damages.” Id. And two federal district courts in Texas have held that the
caps in the federal statute are not affirmative defenses that must be
pleaded. See, e.g., Soto v. LCS Corrections Servs., Inc., No. 2:12-CV-
130, 2013 WL 4012627, at *7 (S.D. Tex. Aug. 5, 2013); Paris v. Dallas
60
Airmotive, Inc., No. Civ.A.3:97CV0208-L, 2001 WL 881278, at *5
(N.D. Tex. July 30, 2001); see also Ortega-Guerin v. City of Phoenix,
No. CV 04-0289-PHX-MHM, 2006 WL 2403511, at *1-2 (D. Ariz.
Aug. 14, 2006) (same); Oliver, 85 F. Supp. 2d at 112 (same); Core Med.,
LLC v. Schroeder, No. 2009-CA-000670-MR, 2010 WL 2867820, at *4-
5 (Ky. Ct. App. July 23, 2010) (unpublished) (same).
The Fifth Circuit has explained also that the federal government
retains sovereign immunity for damages not expressly provided for by
statute. See Smith v. Office of Personnel Mgmt., 778 F.2d 258, 261 (5th
Cir. 1985). Chapter 21 should be applied in a similar way as the federal
statutes. See TEX. LAB. CODE ANN. § 21.001; see also Hoffmann-La
Roche, 144 S.W.3d at 445-46 (Chapter 21 is modeled after federal law
and “federal case law may be cited as authority in cases relating to the
Texas Act”).
Because the caps and equitable relief provided in the statute are
integral parts of the state statutory scheme, they should control the
extent of the waiver of the County’s immunity to suit as well as liability.
See Mission Consol. Ind. School Dist. v. Garcia, 372 S.W.3d 629, 637
61
(Tex. 2012); State v. Lueck, 290 S.W.3d 876, 881 (Tex. 2009). The
elements of a claim against a governmental entity are jurisdictional; the
failure to prove a claim also means the court has no jurisdiction. Univ. of
Houston v. Barth, 403 S.W.3d 851, 854-57 (Tex. 2013); Lueck, 290
S.W.3d at 881 (Tex. 2009). Similarly, the limitations on relief in the
statute should be treated as restricting a court’s jurisdiction or power to
award relief against a governmental entity.
A governmental entity can raise immunity to suit at any time
because it implicates the trial court’s subject matter jurisdiction. Rusk
State Hosp. v. Black, 392 S.W.3d 88, 95 (Tex. 2012); Manbeck v. Austin
Indep. Sch. Dist., 381 S.W.3d 528, 530 (Tex. 2012). The Court of
Appeals erred in ruling the remedy and cap challenges were waived and
in affirming an award of damages other than back wages.
A judgment that grants a remedy against a governmental entity not
expressly provided for by the statute also grants a remedy in excess of
that permitted by the statutory waiver of immunity to suit. See Garcia,
372 S.W.3d at 637; see also Smith, 778 F.2d at 261. If this Court
62
concludes that front pay is recoverable in this case as compensatory
damages, then the compensatory damages must be capped at $300,000.
IV. The Court of Appeals erred in ruling that the County waived
its challenge to the award of front pay and to the excessiveness
of the damage award.
Rule 38.1(f) provides that “[t]he statement of an issue or point will
be treated as covering every subsidiary question that is fairly included.”
TEX. R. APP. P. 38.1(f). Rule 38.9 provides that substantial compliance
with the briefing rules is sufficient, and that the courts of appeals can
require defects be corrected if necessary for a satisfactory submission of
the case. “Appellate briefs are to be construed reasonably, yet liberally,
so that the right to appellate review is not lost by waiver. Simply stated,
appellate courts should reach the merits of an appeal whenever
reasonably possible.” Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008)
(citation omitted). The Court of Appeals correctly determined that
Jefferson County challenged the lack of any evidence to support the
award of $500,000 for future mental anguish, and the Court ruled
correctly that there was no evidence of future mental anguish. Davis,
2014 4262184, at *9.
63
The County also challenged in issue nine the verdict as outrageous
and excessive, and suggested the verdict was the result of a run-away
jury. 219 The County argued that the “evidence in this case simply fails to
support the award of the jury on which the judgment is based.” 220 The
County argued under issue seven, asserting there was no evidence of
discrimination, that if supported by the evidence the jury’s finding
“would entitle Plaintiff to a recovery of back wages and equitable relief
only.” 221 The Court of Appeals should have considered the challenges
and required additional briefing if necessary. See Weeks Marine, Inc. v.
Garza, 371 S.W.3d 157, 162 (Tex. 2012). If this Court does not render a
take-nothing judgment in favor of the County, the Court should remand
the case to the Court of Appeals for consideration of the challenges to
the excessiveness of the damages and to the entitlement to recovery of
damages.
219
Appellant’s Brief, pages 32-36.
220
Appellant’s Brief, page 36; see also 1CR143.
221
Appellant’s Brief, page 26.
64
V. The Court should reverse and render a take-nothing judgment
on all claims or, alternatively, remand the cause to the Court of
Appeals for consideration of those issues not decided by that
court.
In addition to her age discrimination claim, Davis claimed that the
County retaliated against her for opposing the transfer of Alyce
Williams and for opposing age or retirement comments, and violated her
First Amendment speech rights under the U.S. Constitution in various
ways.
A. But-for causation
Davis’s claims require proof of but-for causation. The evidence is
legally insufficient to support causation on each of her claims. The
evidence establishes her termination would have occurred anyway as a
result of the December meeting alone.
1. The Mt. Healthy rule
No liability can be imposed on an employer in free speech claims
like those asserted here when the employee would have been terminated
anyway. As the Supreme Court has explained:
65
It may be dishonorable to act with an unconstitutional motive
and perhaps in some instances be unlawful, but action
colored by some degree of bad motive does not amount to a
constitutional tort if that action would have been taken
anyway.
Hartman v. Moore, 547 U.S. 250, 260 (2006). The Mt. Healthy rule is
that a public employee who is terminated for engaging in
constitutionally protected conduct is not entitled to any relief if the
employer would have terminated her anyway. Mt. Healthy City Sch.
Dist. Bd. of Educ., 429 U.S. 274, 285-86 (1977); Scott v. Flowers, 910
F.2d 201, 209 (5th Cir. 1990); Mooney v. Lafayette Cnty. Sch. Dist., 538
Fed. Appx. 447, 455 (5th Cir. 2013) (unpublished). The proof
requirement is but-for causation. Hartman, 547 U.S. at 260.
The evidence is legally insufficient to support the jury findings in
response to question 7 parts A, B, and C.222 The evidence is legally
insufficient to establish that but for the exercise of protected speech she
would not have been terminated. Rather, the evidence conclusively
establishes that she would have been terminated anyway as a result of
222
1CR131
66
the December meeting. The Court should reverse the judgment and
render a take-nothing judgment on all of Davis’s free speech claims.
2. The retaliation claims
In response to Questions 3 and 7C, the jury found Davis was
terminated for opposing the transfer of Alyce Williams. And in response
to question 7B, the jury found she was fired for opposing remarks about
her age or retirement. The findings are not legally sufficient to support a
retaliation claim, and the evidence is legally insufficient to support them.
There is no evidence that the transfer was a discriminatory
practice. Alyce Williams did not think it was, and Erickson explained he
made the decision that Williams would be the employee transferred
because he viewed her as an excellent employee. Rumors and
speculation do not constitute legally sufficient evidence. And the
evidence is legally insufficient to support a retaliation claim for the
reasons explained further in connection with her speech claims.
The evidence is also legally insufficient to prove but-for causation.
“The text, structure, and history of Title VII demonstrate that a plaintiff
making a retaliation claim under § 2000e–3(a) must establish that his or
67
her protected activity was a but-for cause of the alleged adverse action
by the employer.” Nassar, 133 S. Ct. at 2534. That is also the causation
standard under the Texas Labor Code for a retaliation claim. In Navy v.
College of the Mainland, the court of appeals explained:
[U]nlike claims for discrimination subject to section
21.125(a), which require just a “motivating factor” causation
standard, retaliation claims under section 21.055 are subject
to the traditional “but for” measure. Ptomey v. Tex. Tech
Univ., 277 S.W.3d 487, 497 & n. 11 (Tex. App. --Amarillo
2009, pet. denied) (relying on Pineda, 360 F.3d at 488–89);
see Univ. of Tex. Sw. Med. Ctr. v. Nassar, ––– U.S. ––––,
133 S. Ct. 2517, 2533, 186 L. Ed. 2d 503 (2013) (discussing
the causation requirement for a retaliation claim brought
under Title VII). In other words, the plaintiff must prove that
he would not have suffered an adverse employment action
“‘but for’ engaging in the protected activity.” Medina v.
Ramsey Steel Co., Inc., 238 F.3d 674, 685 (5th Cir.2001);
Long v. Eastfield College, 88 F.3d 300, 305 n. 4 (5th
Cir.1996) (“[E]ven if a plaintiff's protected conduct is a
substantial element in a defendant's decision to terminate an
employee, no liability for unlawful retaliation arises if the
employee would have been terminated even in the absence of
the protected conduct.”).
Navy v. Coll. of the Mainland, 407 S.W.3d 893, 901 (Tex. App.—
Houston [14th Dist.] 2013, no pet.)
The evidence is legally insufficient to establish that but for her
opposition to the transfer of Alyce Williams, or to age or retirement
68
remarks, she would not have been terminated. Because the record
establishes Davis would have been terminated anyway even in the
absence of any protected speech or conduct, the Court should reverse the
judgment and render a take-nothing judgment on her retaliation claims.
B. Analysis of First Amendment claims
Davis’s free speech claims fail for other reasons as well. “To
establish a First-Amendment, free-speech retaliation claim under § 1983,
a public employee must show that (1) she suffered an adverse
employment action; (2) her speech involved a matter of public concern;
(3) her interest in commenting on matters of public concern outweighed
the defendant’s interest in promoting workplace efficiency; and (4) her
speech was a substantial or motivating factor in the defendant’s adverse
employment action.” Burnside v. Kaelin, 773 F.3d 624, 626 (5th Cir.
2014). And, as discussed above, even if she makes that showing, a
public employee who is terminated for engaging in constitutionally
protected conduct is not entitled to any relief if the employer would have
terminated her anyway. Scott, 910 F.2d at 209.
69
Whether an employee’s speech involves a matter of public concern
and is protected speech is a legal question for the Court to decide.
Rankin v. McPherson, 483 U.S. 378, 386 n.9 (1987). Connick v. Myers,
461, U.S. 138, 148 n.7 (1983). Only “factual disputes as to whether
plaintiff’s protected speech was a substantial or motivating factor in the
adverse employment decision, or whether the employer would have
made the same employment decision in the absence of the protected
speech” are for the jury. Branton v. City of Dallas, 272 F.3d 730, 739
(5th Cir. 2001).
“Matters of public concern are those which can ‘be fairly
considered as relating to any matter of political, societal, or other
concern to the community.’” Id. (quoting Connick, 461 U.S. at 146). The
mere fact that the subject of the speech is one in which the public may
have a great interest is “of little moment.” Terrell v. Univ. Texas Sys.
Police, 792 F.2d 1360, 1362 (5th Cir. 1986). As the Court noted in
Connick, “to presume that all matters which transpire within a
government office are of public concern would mean that virtually every
remark—and certainly every criticism directed at a public official—
70
would plant the seed of a constitutional case.” Connick, 461 U.S. at 149
The Court added: “While as a matter of good judgment, public officials
should be receptive to constructive criticism offered by their employees,
the First Amendment does not require that a public office to be run as a
roundtable for employee complaints over internal affairs.” Id. “[W]hen a
public employee speaks not as a citizen upon matters of public concern,
but instead upon matters only of personal interest, absent the most
unusual circumstances, a federal court is not the appropriate forum in
which to review the wisdom of a personnel decision taken by a public
agency allegedly in reaction to the employee’s behavior.” Id. at 147.
Therefore, “[w]hen an employee speaks purely on a matter of
personal interest, clearly no constitutional protection attaches.” Chavez
v. Brownsville ISD, 135 Fed. Appx. 664, 669 (5th Cir. 2005) (citing
Benningfield v. City of Houston, 157 F3d 369, 375 (5th Cir. 1998)).
Similarly, speech pertaining to internal personnel disputes and working
conditions will not usually involve a public concern. Branton, 272 F.3d
at 739. Speech that consists exclusively of criticisms of the competence
71
of the speaker’s supervisor is not of public concern. Wilson v. UT Health
Center, 973 F2d 1263, 1269 (5th Cir. 1992).
To determine whether an employee’s speech addresses a matter of
public concern, courts examine the content, form, and context of a given
statement. Connick, 461, U.S. at 147-48. This requires an analysis of
each of the four events where she alleged her rights were violated.
C. Davis’s First Amendment claims
Davis alleged four events where she claimed her rights were
violated.
1. Meeting with Commissioner
Davis obtained jury findings that when Davis spoke to
Commissioner Domingue about the appointment of the Purchasing
Agent, she spoke as a citizen on a matter of public concern, the speech
was not purely job-related, the speech did not disrupt the work-place,
and that speech was a substantial or motivating factor in Davis’s
72
termination. 223 The evidence is legally insufficient to support the jury’s
findings.
There is no evidence that Davis’s meeting with Domingue before
Anderson was appointed Purchasing Agent was causally related to
Davis’s termination by Anderson approximately a year later. In Burnside
v. Kaelin, 773 F.3d 624, 629 (5th Cir. 2014), Burnside complained that
his First Amendment rights of freedom of speech and association were
violated when he was fired more than thirteen months after his protected
activities had occurred. Id. The court noted that Burnside’s complaint
alleged no facts linking the two events. The court stated that, “[w]ithout
such facts, we cannot plausibly infer that the termination was causally
related to Burnside’s First-Amendment conduct” and that, “without a
causal link between the termination and Burnside’s protected activities,
there can be no claim of a constitutional violation as a matter of law.” Id.
No evidence connects Davis’s meeting with Domingue before
Anderson was hired with her termination a year later. The meeting
occurred while Clark was serving as Interim Purchasing Agent. There is
223
CR128-31.
73
no evidence that Anderson knew about Davis’s meeting with Domingue
or that the meeting played any role in his decision to terminate her.224
See Beattie v. Madison County Sch. Dist., 254 F.3d 595, 603-05 (5th Cir.
2001). Davis failed to show that the meeting motivated the termination.
Although the jury found that the Domingue meeting involved a
matter of public concern, that was a question for the court, not the jury.
Connick, 461 U.S. at 147 n7. Assuming that Davis’s attendance at a
meeting where someone else (Williams) discussed their desires for the
characteristics of the next Purchasing Agent constituted “speech,” it was
not protected speech. According to all Department personnel, it was
perfectly proper for Department employees to talk to the commissioners,
including Domingue, who was on the Department Board. 225 Davis and
Williams hoped the Board would select a person of character, a leader,
because “the ongoing drama in the department was difficult.”226 They
spoke to their personal interest in eliminating the drama in the
Department and to internal personnel disputes and working conditions;
224
4RR57,87,94-96;6RR103,105-06.
225
2RR9.
226
2RR9.
74
this was not protected speech. Even if Davis had criticized Clark and
was fired for that, the criticism of her supervisor is not protected speech.
See Connick, 461 U.S. at 149; Caro v. City of Dallas, 17 F. Supp. 2d
618, 631 (N.D. Tex. 1998).
Davis claims a violation of her free speech rights when there is no
evidence that Anderson, the person who fired Davis, knew about the
meeting or cared about the meeting when he fired Davis approximately
a year later. The Court should render a take-nothing judgment on this
claim.
2. Age or retirement
Davis obtained findings that when she “opposed the remarks by
Doug Anderson about her age or retirement,” she spoke as a citizen on a
matter of public concern, and not on matters which were purely job-
related, that her speech was not disruptive, and that speech was a
substantial or motivating factor in Davis’s termination. 227 The evidence
is legally insufficient to support the findings. Essentially, this claim
attempts to avoid the proof requirements of an age discrimination claim,
227
CR128-31.
75
but the claim also fails for lack of evidence and as a matter of law. The
speech was not a matter of public concern and any speech about age and
retirement was not the cause of her termination.
Whether the speech involves a matter of public concern and is
protected speech is a legal question for the court to decide. Connick v.
461 U.S. at 147 n7; Rankin v. McPherson, 483 U.S. 378, n. 9(1987). “In
Connick, the Supreme Court taught that ‘when a public employee speaks
. . . as an employee upon matters only of personal interest, absent the
most unusual circumstances, a federal court is not the appropriate forum
in which to review the wisdom of a personnel decision taken by a public
agency allegedly in reaction to the employee’s behavior.’” Alexander v.
Eads, 392 F.3d 138, 142-43 (5th Cir. 2004).
In Eads, several plaintiffs had complained about a promotion
policy. Id. at 143. Their “concerns were voiced only in the form of
questions regarding each officer’s attempt to attain promotion, not about
general promotion policy” and the “form of these questions was clearly
private, as they were not leaked to a reporter or sent to an elected state
official.” Id. Holding that the context of the statements was “completely
76
private,” the court observed that no one could reasonably argue that the
complaints were made in the context of a widespread debate in the
community or would make valuable contributions to public debate. Id;
see also Haynes v. City of Beaumont, 35 S.W.3d 166, 179 (Tex. App.—
Texarkana 2000, no pet.).
Davis’s statements related to a matter of private concern and
involved a one-on-one discussion with Davis’s supervisor and general
discussion in a staff meeting. As in Eads, the statements “were clearly
private, as they were not leaked to a reporter or sent to an elected public
official.” Eads, 392 F.3d at 143. Any comment Davis may have made
was not made “against a backdrop of widespread debate in the
community” nor would they make a “valuable contributions to public
debate.” Id. at 143.
Furthermore, the evidence is legally insufficient to establish that
her termination was due to age, nor is there any evidence she was
terminated because of her opposition to any statement by Anderson
about age or retirement. She was terminated for a specific reason: the
77
December meeting. The Court should render a take-nothing judgment on
this claim.
3. The transfer
Davis obtained findings that, when she “opposed the transfer of
Alyce Williams to Deb Clark because Alyce Williams is a dwarf,” she
spoke as a citizen on a matter of public concern, and not on matters
which were purely job-related, that her speech was not disruptive, and
that speech was a substantial or motivating factor in Davis’s
termination. 228 The evidence is legally insufficient to support the
findings.
Even if Davis’s conversation with Clark is protected speech, these
jury findings do not support a judgment based on a violation of the First
Amendment because there is no evidence that Davis’s conversation with
Clark was a cause of Davis’s termination. Davis’s opposition to
Williams’s transfer was not a cause of her termination as a matter of
law.
228
CR128-31.
78
The jury issue asked whether Davis was terminated due to her
speech in which she “opposed the transfer of Alyce Williams to Deb
Clark because Alyce Williams is a dwarf.” The record reflects only one
conversation between Williams and Clark on this issue.229 Davis
described the conversation this way:
I told her that—I asked her what she was gonna do about it
and I told her that I was willing to do something about it. I
told her I would even do it with her if that is what it would
take. But, she told me no, and she said that she was going to
handle it? 230
Davis testified that Clark told her that Clark did not know who she was
going to see, but at another point Davis testified that Clark said she was
already doing something about it.231 After Clark declined Davis’s offer
of assistance, Davis testified that she left it in Clark’s hands, and Davis
did not get back to her because she knew that Clark had talked to
somebody or was going to talk to somebody. 232 Davis testified that the
only person she complained to was her immediate supervisor, Clark. 233
229
5RR39.
230
5RR38-9.
231
5RR38;6RR51.
232
5RR38-39;6RR51.
233
5RR39;6RR52-53.
79
Davis was not alone in her opposition to the transfer. Clark
opposed the transfer. She told Anderson it was not a good idea because
Alyce Williams handled all the paperwork and did a good job at it.234
Both Clark and Anderson were aware that the entire office staff was
opposed to the transfer. Clark told Anderson that the staff was concerned
about Williams being “fired,” which was the term the staff used for her
transfer. 235 According to Davis, everyone was talking about the transfer,
and Anderson called a meeting to discuss the issue with the staff.236
Everyone in the department was at the meeting, including Alyce
Williams. 237 Anderson explained that Williams was being transferred to
H.R., explained what her job would be, and explained the importance of
her job.238 Anderson did not fire the staff for being concerned about
Williams; instead he talked to them. 239
The opposition that Davis expressed was one conversation in
which she asked Clark what she was going to do about it and
234
3RR151;4RR62.
235
3RR153-54.
236
5RR39-40.
237
5RR40.
238
5RR41.
239
4RR22-23.
80
volunteered to help Clark oppose the transfer. There is no evidence to
support the jury finding that the one conversation had anything to do
with Davis’s termination.
There is no evidence that Anderson knew about the Clark-Davis
conversation about Williams’s transfer before Davis was terminated.
Davis failed to present evidence that her termination was retaliation for
protected speech. Beattie, 254 F.3d at 603-04. The evidence
conclusively establishes that Davis was fired as a result of the December
meeting. The Court should render a take-nothing judgment on this claim.
4. The debt
Davis obtained findings that, “when she spoke to Doug Anderson
in regards to the debt owed to her by Deb Clark” she spoke as a citizen
on a matter of public concern, and not on matters which were purely job-
related, her speech was not disruptive, and that speech was a substantial
or motivating factor in Davis’s termination. 240 The evidence is legally
insufficient to support the jury’s answers to Questions 4D, 5D, and 6D.
The County agrees that the December meeting, in which the debt was
240
CR128-31.
81
discussed, was a substantial or motivating factor in Davis’s
termination. 241 In fact, it was the cause of termination. But the December
conversation between Anderson and Davis was not protected speech.
Davis’s husband told Davis that “it’s not a whole lot of money but
I want my money back and I can get it back in small claims court.”242 He
had the paperwork, and she thought that he really was going to take
Clark to small claims court. 243 Davis decided that she should let
Anderson know.244
Davis’s version is that she told Anderson in the December meeting
that she tried hard to get the money from Clark, that Clark would not pay
it back, that her husband was pressing Davis, and that he was going to
take Clark to small claims court. 245 She recalls telling him that Clark
was talking about Anderson behind his back to people in the Department
241
CR131, Question 7D.
242
5RR44-45.
243
5RR45.
244
5RR46.
245
5RR46-47;6RR24-25.
82
and maybe even to people in the courthouse.246 When the meeting was
over, Anderson said that he would talk to Clark. 247
Anderson testified that Davis came in and leveled a number of
accusations against Clark and that the money was the last thing she
brought up.248 Davis complained that Clark had plotted to have
Anderson fired, that she had conspired against the previous purchasing
agent, that Clark had complained to her subordinates about spending late
hours at the office with Anderson, and that Clark’s husband was jealous
of the number of text messages and late hours at the office. 249 Anderson
testified that the last thing she mentioned was that Clark owed her
$300.250
Anderson testified that he tries very hard not to be angry but that
the conversation was very upsetting.251 Anderson called Clark in that
afternoon and told her that she needed to get a money order for $300 to
246
5RR47;6RR23.
247
6RR27.
248
4RR82,83.
249
4RR111.
250
4RR111.
251
4RR112.
83
repay Davis if she had borrowed the money. 252 She replied, “Yes, sir.”253
Clark testified that she told Anderson that she thought she had repaid
her. 254 At another point, she said she was not sure if she told him that,
explaining that she was being “hammered pretty hard” by Anderson.255
The next day, Anderson met with both Clark and Davis together.256
He gave Davis a money order for $300.00.257 Other than saying that
$300 was too much, Davis said nothing.258 Clark said nothing at all.259
Anderson said, “You are never to speak of this again. Ever.” 260 Davis
testified he looked at her and said, “You are reprehensible.”261 He
added: “This is the reason this department has such a terrible
reputation.”262 Neither Clark nor Davis said another word; they signed
the receipt and left. 263
252
3RR172.
253
3RR172.
254
3RR172.
255
4RR33-34.
256
5RR51.
257
5RR51.
258
5RR51.
259
5RR51.
260
5RR51.
261
5RR51.
262
5RR51.
263
5RR51.
84
Anderson’s initial thought was that this was not going to work and
he decided to fire Davis. 264 He testified that “at that point I decided that
it was no longer going to be a worthy working relationship, and I
decided to terminate her at that point.”265 He waited three months before
terminating her because he did not want to terminate her at Christmas,
then there was a health issue in her family, and then she was on
vacation.266 In response to a question from Davis’s counsel, Anderson
agreed to this statement: “…well, the truth of the matter is if Donna had
never come to your office in December to talk about Deb, you never
would have made the decision to fire Donna.”267
Whether or not Anderson made the right management decision,
what was said in that meeting was not protected speech. When an
employee speaks purely on a matter of personal interest, no
constitutional protection attaches. Connick, 461 U.S. at 147; Chavez,
135 Fed. Appx. at 669; see Eads, 392 F.3d at 143; Stotter v. University
of Texas at San Antonio, 508 F.3d 812, 825-27 (5th Cir. 2007); Branton,
264
4RR94.
265
4RR58.
266
4RR93-94.
267
4RR87.
85
272 F.3d at 739 (“[S]peech pertaining to internal personnel disputes and
working conditions ordinarily will not involve public concern.”); Finch
v. Fort Bend I.S.D., 333 F.3d 555, 563-64 (5th Cir. 2003).
Davis’s statements at the December meeting involved an internal
personnel dispute that was presented only to her department head in a
private meeting, was not against the backdrop of any widespread debate in
the community, and was related to her dispute with Clark about a private
debt. See Davis v. McKinney, 518 F.3d 304, 315 (5th Cir. 2008) (“Speech
related to an employee’s job duties that is directed within the employee’s
chain of command is not protected”). Davis’s speech at the December
meeting was not protected speech. The Court should render a take-nothing
judgment on this claim.
PRAYER
No meritorious cause of action exists for the termination of an at-
will employee as a result of the December meeting. Jefferson County
respectfully requests that the Supreme Court grant this petition for
review and reverse the lower court’s judgment, and:
86
1. Considering all the issues, render judgment that Donna Davis
recover nothing, or that she recover nothing on her age
discrimination claim and remand the cause to the court of
appeals for consideration of the issues not reached by that
court;
2. Alternatively, render judgment that Donna Davis recover no
front pay on her age discrimination claim, or that the
compensatory damages are capped at $300,000, and remand
the cause to the Court of Appeals for consideration of the
issues, including excessiveness, not reached by that court;
3. Alternatively, remand the cause to the court of appeals for
consideration of the front pay and excessiveness of the
award, and the issues not reached by the court;
4. Alternatively, remand the cause to the trial court for a new
trial.
Jefferson County requests all other relief to which it is entitled.
87
Respectfully submitted,
MEHAFFYWEBER, P.C.
By: /s/ David Gaultney
David Gaultney
State Bar No. 07765300
davidgaultney@mehaffyweber.com
MehaffyWeber, P.C.
823 Congress Avenue, Suite 200
Austin, Texas 78701
Phone: (512) 394-3840
Fax: (512) 394-3860
Patricia Chamblin
State Bar No. 04086400
patriciachamblin@mehaffyweber.com
MehaffyWeber, P.C.
2615 Calder, Suite 800
P.O. Box 16
Beaumont, Texas 77704
Phone: 409-835-5011
Fax: 409-835-5177
Jeremy Stone
State Bar No. 24013577
jeremystone@mehaffyweber.com
MehaffyWeber, P.C.
500 Dallas, Suite 1200
Houston, Texas 77002
Phone: (713) 655-1200
Fax: (713) 655-0222
88
Kathleen Kennedy
Chief Civil Attorney
kkennedy@co.jefferson.tx.us
Office of Criminal District Attorney
1001 Pearl Street, 3rd Floor
Beaumont, Texas 77701
Phone: (409) 835-8550
Fax: (409-784-5893
ATTORNEYS FOR PETITIONER
JEFFERSON COUNTY, TEXAS
CERTIFICATE OF COMPLIANCE
This will certify that the foregoing Brief on the Merits complies
with the length requirements of Tex. R. App. P. 9.4(i). The Brief has
14,915 words in the document, not counting the contents excluded by
Rule 9.4(i)(1).
/s/ David Gaultney
89
CERTIFICATE OF SERVICE
I hereby certify by my signature below that a true and correct copy
of this document has been forwarded to the following counsel of record
via electronic filing manager and e-mail on May 13, 2015.
Larry Watts Iain G. Simpson
Azuwuike "Ike" Okoro Okorafor Simpson, PC
Watts & Associates Iain@simpsonpc.com
wattstrial@gmail.com 1333 Heights Blvd., Suite 102
P. O. Box 2214 Houston, Texas 77008
Missouri City, TX 77459
ATTORNEYS FOR
RESPONDENT, DONNA DAVIS
/s/ David Gaultney
90
NO. 14-1029
IN THE SUPREME COURT OF TEXAS
JEFFERSON COUNTY, TEXAS,
Petitioner
v.
DONNA DAVIS,
Respondent
ON PETITION FOR REVIEW FROM THE
FOURTEENTH COURT OF APPEALS, HOUSTON, TEXAS
No. 14-13-00663-CV
INDEX TO APPENDIX
Tab: Description:
A. Final Judgment
B. Jury Charge and Verdict
C. Court of Appeals Majority Opinion
D. Court of Appeals Dissenting Opinion
E. Supplemental Memorandum Opinion of Denial of
Rehearing
F. TEX. LAB. CODE ANN. § 21.125
G. TEX. LAB. CODE ANN. § 21.258
H. TEX. LAB. CODE ANN. § 21.2585
I. 42 U.S.C. § 2000e-5
91
CAUSE NO B-182252
DONNADAVIS, § IN THE DISTRICT COURT
PlaintiH: §
V. § OF JEFFERSON COUNTY
§
JEFFERSON COUNTY, TEXAS, et al. §
Defendant. § 60TH DISTRICT COURT
FINAL JUDGMENT
BE IT REMEMBERED, that on February 25, 2013, this case was called
for trial by jury. Plaintiff, DONNA DAVIS, appeared personally and by her
attorneys, Larry Watts, Ike Okorafor, and Melynda Smith Lombardo and
announced ready for trial. Defendant(s) JEFFERSON COUNTY, DOUG
ANDERSON (personally), and DEBRA CLARK (personally) appeared (and) by
their attorney, Thomas Rugg, and announced ready for trial.
After a jury was impaneled and sworn, evidence and arguments of counsel
were presented. In response to an agreed jury charge and special interrogatories
the jury returned a unanimous verdict on March 4, 2013, which the Court received,
filed, and entered of record. A copy of the questions submitted to the jury and the
jury's findings are attached as Exhibit "A" and incorporated by this reference as if
set forth in full herein.
Therefore, the Court hereby RENDERS final judgment for the Plaintiff,
DONNA DAVIS, against JEFFERSON COUNTY as follows:
Page II
154
Accordingly, the Court orders that Plaintiff recover the following from
Defendant JEFFERSON COUNTY, TEXAS:
1. Actual Damages totaling $1,312,145 and detailed below:
a. Damages for past mental anguish: $50,000
b. Damages for future mental anguish: $500,000
c. Damages for past loss of earning: $258,090
d. Damages for future loss of earning: $318,14 7
e. Damages for past loss of benefits: $147,100
f. Damages for future loss of benefits: $38,808
2. Prejudgment interest on the actual damages herein, in the amount of
$1,312,145, at the rate of 5.00% per annum from March 3, 2008, until the
date ofthis final judgment in the amount of $1,674,666.47 as ofMarch of
2013.
3. Post judgment interest on all of the above at the rate of5.00% per
annum, compounded annually, from the date this final judgment is entered
until all amounts set forth above are paid in full.
4. Reasonable and necessary attorney fees in the amount of$91,908.75 for
the prosecution of this case through to this final judgment.
5. Court cost and expenses totaling $1,867.58
155
6. This final judgment finally disposes of all claims and all parties and is
appealable.
7. The Court orders execution to issue for this judgment.
SIGNED 01 ~ I j .d:?, 2013
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CAUSE NUMBER.B-182252
DONNA DAVIS, § IN THE DISTRICT COURT OF
Plaintiff. §
v. §
§ JEFFERSON COUNTY, TEXAS
JEFFERSON COUNTY, DOUGLAS §
ANDERSON, DEB CLARK, .§
Defendants. § 601h JUDICIAL DISTRICT COURT
CHARGE OF THE COURT
LADIES AND GENTLEMEN OF THE JURY:
This case is submitted to you by asking questions about the facts, which you must decide
:from the evidence you have heard in this trial. You are the sole judges of the credibility of the
witnesses and the weight to be. given their testimony, but in matters of law, you must ·be
· governed by the instructions in this charge. In discharging your responsibility on this jury, you
will observe all the instructions, which previously have been given you. I now shall give you
additional instructions, which you should carefully and strictly follow during your deliberations.
1. Do not let bias, prejudice or sympathy play any part iri. your deliberations.
2. In arriving at your ari.swers, consider only the evidence iJ;J.troduced here under oath
and such exhibitS; if any, as have been introduced for your consideration under .
the rulings of the cOurt -- that is, what you have seen and heard in this courtroom -
- together with the law as given to you by ·the court. In your deliberations, you
will not consider or discuss anything that is not represented by the evidence in this
case.
3. Since every answer that is required by the charge is important, no juror should
·state or consider that any required answer is not important.
4. You must not decide who you think should win, and then try to answer the
questions accordingly. Simply answer the questions, and do not discuss or
concern. yourselves with the effect of your answers.
5: You will not decide the answer to a question by lot Or by drawing straws, or by
any other method of chance. Do not return a quotient verdict. A quotient verdict
means that jurors agree to abide by the. result to be reached by adding together
each juror's figures and dividing by the number of jurors to get an average. Do
not do any trading on yolir answers; that is, one juror should not agree to answer.a
certain question one way, if others will agree to answer another question another
way.
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6. You may render your verdict upon the- vote of ten or mere members of the jury.
The same ten or more of you must agree upon all of the answers made and to the
entire verdict. You will not; therefore, enter into an agreement to be bound by a
majority or any other vote of less than ten jurors. if the verdict and all of the
answers therein are reached by unanimous agreement, the presiding juror· shall
sign the verdict for the entire jury. If any juror disagrees as to any answer made
by the verdict, those jurors who agree to all findings shall.each. sign the verdict.
These instructions are given to you because your conduct iS subject to review the same as
that of the witnesses, parties, attorneys, and the judge. If it ·shoUld be found that you have
disregarded any of these instructions, it will be considered jury misconduct and· it may require
another trial by another jury. If this should occur, all of our time will have been wasted.
A presiding juror or any other person who. observes a violation of the court's instructions
shall immediately warn the one who is violating the same and caution the juror not to do so again.
When words are used in this charge in a sense that varies from the meaning commonly
understood, you are given a proper legal definition. which you are bound to accept in place of
any other meaning.
Answer ''Yes~· or "No" to all questions unless otherwise instructed. A "Yes" answer must
be based on a "preponderance Of the evidence." The term "preponderance of the evidence"
means the greater weight and degree of credible testimony or evidence introduced before you
and admitted in this case. If you do not find that a preponderance of the evidence supports a
"Yes" answer, then answer "No." Whenever a question.requires an answer other than "Yes" or
''No," your answer still must be based on a preponderance of the evidence.
INSTRUCTIONS
Domia Davis claims that the Defendant(s), while acting ''under color of state law,"
intentionally deprived the Plaintiff of rights under the Texas Labor Code and the Constitution of
the United States.
Donna Davis claims that while the Defendant(s) were acting under color of authority of Jefferson
.County, Texas they intentionally violated the Donna DaVis's rights, both statutory and
Constitutional when they allegedly took adverse actions against her in the employment place.
The Plaintiff cl~s that the Defendant(s) discharged Donna Davis from employment because of
the Donna Davis's age, and her good faith opposition to the transfer of-Alyce Williams from the
Purchasing Department in 2007, in claimed violation ofthe Texas Labor Code. Donna Davis
further claims that other motivating reasons for claimed adverse actions taken against her by
Defen.dant(s) were her exercise of the rights of free speech under the First Amendment of the
Constitution of the United States.
A person may sue.for an award of money damages against Jefferson County or anyone who
violates the Texas Labor Code or who intentionally deprives a person "under color" of State law
or custom, ofDonna Davis' rights under the Constitution ofthe United States.
2
158
...
Thus, Donna Davis must prove by preponderance of the evidence each of the following:
1. That the actions of the defendant(s) were "under color" of the authority of Jefferson County,
Texas;
2. That Donna Davis' speech activities were constitutionally "protected" under the First
Amendment;
3. That Donna Davis' exercise of protected First Amendment rights was a substantial or
motivating factor in the Defendant(s) decision to discharge the Plaintiff from employment.
State or Local officials act "under color" of the governmental entity when they act within the
limits oftheir lawful authority. However, they also act ''under color'' of the authority of the State
when they act without lawful authority or beyond the bounds of their lawful authority if their acts
are done while the officials are purporting or pretending to act in the performance of their official
duties. An official acts "under color'' of the state authority if he abuses or misuses a power that
he possesses only because he is an official..
You are instructed as a matter of law that Douglas Anderson III, acted as Jefferson County•s
final authority in personnel actions taken against Donna Davis when acting as Purchasing Agent
for Jefferson County. ' ·
In determining whether the Defendant(s) intentionally violated Donna Davis' First Amendment
a
rights, you must remember that the Plaintiff as a public employee has right to practice freedom
of speech only when not purely related to her job, speaking about matters which concerned the
community, and to the extent that her speech did not unduly interfere with her duties and
responsibilities, or the workplace.
To prove that Donna Davis' speech activities were a substantial or motivating factor in the
Defendant's(s') decision, Donna Davis does not have to prove that those speech activities .were
the only reason the defendants made the decision. Donna Davis need only prove that the speech
activities were a substantial consideration that made a difference in or iirfluenced the
Defendant's(s') decision.
Donna Davis must also prove by a preponderance of the evidence that the act or failure to act by
the Defendant(s) was a cause in fact of the damage Donna Davis suffered. An act or fail"Ure to act
is a cause in fact of an injury or damages if it appears from the evidence that the act or omission
played a substantial part in bringing about or actually causing the injury or damages. Donna
Davis must also prove by a preponderance of the evidence that the act or failure to act by the
Defendant was a proximate cause of the damage Donna Davis suffered. An act or omission is a ·
3.
159
proximate cause of the Donna Davis's injuries or damages if it appears :from the evidence that
the injury or damages was a reasonably foreseeable consequence of the act or omission.
A fact may be established by direct evidence or by circpmstmitial evidence, or both. A
fact is established by direct evidence when proved by documentary evidep.ce, or by witnesses
who saw the act done or heard the words spoken. A fact is established by circumstantial
evidence when it may be fairly and reasonably inferred from other facts proved. ·
4
160
··'
QUESTION NO. l
Was age a motivating factor in Defendant's decision to terminate Donna Davis'
employment?
A "motivating factor'' in an employment decision is a reason for making the decision at
· the time it was made. There may be more than one motivating factor for an employment decision.
An employer may act for a good reason, a bad reason, or any reason at all so long as it is
. not motivated on the basis of age.
~or No.
Answer: Yes
5
161
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Ql]ESTION NO. 2
Was Donna Davis' opposition to Douglas Anderson's transfer of Alyce Williams made in good
faith?
Answer0. "no''.
Answer: Yes
6
162
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QUESTION NO.3
Was Donna Davis' opposition to Douglas Atlderson's transfer of Alyce Williams a motivating
Answer ·e,
factor in Defendant's decision to terminate Donna Davis' employment?
''no".
Answer: _Y~e~s....___
7
163
...
QUESTION NO.4
1. Did Donna Davis speak as a citiZen and not on matters which were purely job-relat~
when she:
A. Spoke to Commissioner Domingue about the appointment of the Purchasing Agent?
Answer@rNo: Ye..s
B. Opposed the remarks by Doug Anderson about her age or retirement?
Answer:f}rNo Ye S
C. Opposed the transfer of Alyce Williams to Deb Clark because Alyce Williams is a dwarf?
Answer{ijrNo: Ves
D. Spoke to Doug Anderson in regards to the debt owed to her by Deb Clark?
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AnswerOr No:
u1es
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QUESTION NO.5
Do you find from a preponderance of the evidence
l. That Donna Davis' comments did not substantially disrupte the efficiency ofthe work
done in purchasing department, when she:
A. Spoke to Commissioner Dorriingue about the appointment of the Purchasing Agenf?
Answe@rNo: Yes
B. Opposed the remarks by Doug Anderson about her age or retirement?
Answer~No: Yes
C. Opposed the transfer of Alyce Williams to Deb Clark because Alyce Williams is a dwarf?
Amwer@r No: ~ e.s
D. Spoke to Doug Anderson :in regards to the debt owed to her by_ Deb Clark?
Answerer No: YtS
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Do you find from a preponderance of the evidence ~r:
1. Donna Davis' speech related to or was on matters of political, social, or other concerns f'
to the community or on a matter ofpublic concern, when she: ~;::
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A. Spoke to Commissioner Domingue about the appointment of the Purchasing Agent? ...
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AnswerQr No: Ye.s ,.t~
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B. Opposed the remarks by Doug Anderson about her age or ~ent? jf':
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Answer:9rNo Yes ~t~
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C. Opposed the transfer ofAlyce Williams to Deb Clark because Alyce Williams is a dwarf? ~-
Answer~ No: y e5 ~-
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.D. Spoke to Doug Anderson in regards to the debt owed to her by Deb Clark?
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QUESTION NO. 7
Do you find from a preponderance of the evidence that Donna Davis' exercise of speech was a
substantial or motivating factor of Donna Davis • terminatio~ when she:·
A. Spoke to Commissioner Domingue about the ~ppointm.ent of the Purchasing Agent?
Answer6or No: Yes
B. Opposed the remarks by Doug Anderson about her age or retirement?
Answer: er No Yes
a
C. Opposed the transfer of Alyce Williams to Deb Clark because Alyce Williams is dwarf?
Answer@r No: Ye..s .
D. Spoke to Doug Anderson in regards to the debt owed to her by Deb Clark?
-QNo= Y~x
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..
. INSTRUCTIONS ON DAMAGES
Compensatory damages are not limited to economic damages and/or expenses that Donna
Davis may have suffered or incurred because ofDefendant•s conduct If Donna Davis wins, she
is also entitled to compensatory damages for the physical injury, pain and suffering, mental
anguish, shock and discomfort that she has suffered because of the defendant's conduct.
You may award compensatory damages only for injuries that Donna Davis proves were
proximately caused by the Defendant's allegedly wrongful conduct. The damageS that you award
must be fair compensation for all of Donna Davis' damages, no more and no less. Damages are
·not allowed as a punishment and cannot be imposed or ·increased to penalize the defendant. You
should not award compensatory damages for speculative injuries, but only for those injuries
which Donna Davis has actually suffered or that she is reasonably likely to suffer in the future.
If you decide to award compensatory damages, you should be guided by &$passionate
common sense. Computing damages may be difficult, but you must not let .that difficulty lead
you to engage in arbitrary guesswork. On the other hand, the law does not require that the
plaintiff prove the amount of his losses with mathematical precision; but only with as much
definiteness and accuracy as the circumstances permit You must use sound discretion in fixing
an award of damages, drawing reasonable inferences where you find them appropriate from the
facts and circumstances in evidence. You. should· consider the following elements of damage, to
the extent you. find them proved by a preponderance of the evidence:
· A. Damages Accrued
If you find for Donna Davis, she is entitled to recover an amount that will fairly compensate her
for any damages she has. suffered to date.
B. Calculation of Futm"e Damages
If you find that Donna Davis is reasonably certain to suffer damages in the future from her
injuries, then you should award her the amount you believe would fairly compensate her for such
future damages.
C. Reduction of Future Damages to· Present Value
An award of future damages necessarily requires that payment be made now for a loss
that Donna Davis will not actually suffer until some future date. If you should find that Donna
Davis is entitled to future damages, including future earnings, then you must determine the
present worth in dollars of such future damages. If you award damages for loss of future earnings,
you must consider two particular factors:
I. You should reduce any. award by· the amount of the expenses proven that Donna Davis would ·.
have incurred in making those earnings; . · ·
2. If you ma:ke an award for future loss of earnings, you must reduce it to present value.
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...
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"Mental anguish", as element of damages, implies relatively high degree of mental.pain
and distress; it is more than mere disappointment. anger, resentment, or embarrassment, although
.it may include all of those, and it includes mental sensations ofpain resulting from such painful
emotions as grief, severe disappointment, indignation, wounded pride, shame, despair and/or
public humiliation.
QUESTION NO. 8
What sum of money, if any, if paid now in cash, do you find from a preponderance of the
evidence would fairly and reasonably compensate Plaintiff for the damages, if any, that resulted
from her termination?
Consider the elements of damages listed below and no others. Consider each element
separately. Do not includ¢ damages for one element in any other element. -Do not include any
amount for interest. Answer in dollars and cents; if any.
(a) Counseling expenses incurred in the past
ANSWER: $__,.Qo:;._.._ __
· (b) Mental anguish in the past.
ANSWER: $ 50 3 000
(c) Mental anguish that in reasonable probability Plaintiff will suffer in the future.
ANSWER: $ 5 (){)1 em
(d) Loss of earnings in the past.
ANSWER: $ ~5$$j090
(e) Loss of eain:ings that in reasonable probability Plaintiff will suffer in the i\lture.
ANSWER: $ 3) ~} /47
· (f) Loss of retirement. health, medical, and life ~urance, and other similar fringe
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(g) Loss of retirement. health, medical, and life insurance, and other similar fringe
benefits that in reasonable probability Plaintiff will suffer in the future.
ANSWER: $ 3~J 208 .
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169
·After you retire to the jwy room, you will select your own presiding juror. The first thing
the presiding juror will do is have this entire charge read aloud and then you will deliberate upon
your answers to the questions asked.
It is the duty of the presiding juror to:
1. Preside during your deliberations;
2. See that your deliberations are conducted in an orderly manner and in accordance
with the instructions in this charge;
3. Write out and hand to the bailiff any comm.unicationa concerning the case that
you desire to have delivered to the judge;
4. Vote on the questions;
5. Write your answers to the questions in the spaces provided; and
6. Certify to your verdict in the space provided for the presiding juror's signature or
obtain the signatures of all the jurors who agree with the verdict if your verdict is
less than urumiinous. · ·
You should not discuss the case with anyone, not even with other members of the jwy,
unless all of you are present and assembled in thejwy room. Should anyone ·attempt to talk to
you about the case before the verdict is retmned, whether at the courthouse, at your home, or
elsewhere, please inform the judge of this fact
When. you have answered all the questions you are required to answer under the
instructions of the judge, and your presiding juror has placed your answers in the spaces
provided and signed the verdict as presiding juror or obtained the signatures, you will inform the
bailiff at the door of the jwy room that you have reached a verdict, and then you will return. to
the courtroom with your verdict ·
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CERTIFICATE
We, the jury, have answered the above and foregoing questions as herein indicated, and
herewith return same to the Court as our verdict (to be signed by the presiding juror, if
unanimous).
(to be signed by those rendering the verdict if non- U1Janimous)
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MAR 0 ~ 2013
CI.Elfl272 S.W.3d 588, 592 (Tex. 2008) (per curiam).
Accordingly, Davis “bore the burden of proving that age was a motivating factor”
2
in the County’s decision to discriminate against her. AutoZone, 272 S.W.3d at
592; see also TEX. LAB. CODE ANN. § 21.125(a) (West 2006) (“[A]n unlawful
employment practice is established when the complainant demonstrates
that . . . age . . . was a motivating factor for an employment practice, even if other
factors also motivated the practice . . . .”).
In the charge, the jury was instructed that “[a] ‘motivating factor’ in an
employment decision is a reason for making the decision at the time it was made.
There may be more than one motivating factor for an employment decision.”
Davis accordingly had to prove that age was a motivating factor for her
termination, not the sole but-for cause. See Quantum Chem. Corp. v. Toennies, 47
S.W.3d 473, 480 (Tex. 2001); see also Wal-Mart Stores, Inc. v. Canchola, 121
S.W.3d 735, 739 (Tex. 2003) (per curiam).
Davis could satisfy her burden of proof in either of two ways. “The first
method, rather straightforward, involves proving discriminatory intent via direct
evidence of what the defendant did and said.” Mission Consol. Indep. Sch. Dist. v.
Garcia, 372 S.W.3d 629, 634 (Tex. 2012). The second method involves a burden-
shifting framework and requires the employee to first prove the elements of a
prima facie case, which is that the employee was “(1) a member of the protected
class under the TCHRA, (2) qualified for his or her employment position,
(3) terminated by the employer, and (4) replaced by someone younger.” Id. at 642.
Satisfying the prima facie case “‘raises an inference of discrimination only because
we presume these acts, if otherwise unexplained, are more likely than not based on
the consideration of impermissible factors.’” Id. at 634 (quoting Furnco Constr.
Corp. v. Waters, 438 U.S. 567, 577, 98 S. Ct. 2943, 2949–50, 57 L. Ed. 2d 957
(1978)). Next, under the second method, if the employer produces evidence of a
“legitimate, non-discriminatory reason for its decision to terminate” the employee,
3
then the employee nonetheless may prevail by proving “that the employer’s stated
reason for the adverse action was a pretext for discrimination.” Quantum Chem.
Corp., 47 S.W.3d at 476.1 Still, an employee may prevail even if the employer’s
“reason, while true, is only one reason, and discrimination was another,
‘motivating,’ factor.” Navy v. Coll. of the Mainland, 407 S.W.3d 893, 899 (Tex.
App.—Houston [14th Dist.] 2013, no pet.).
When reviewing pretext and motivating-factor evidence under the second
method of proof, courts also will consider statements and remarks by the employer
as additional evidence of discrimination. See Laxton v. Gap, Inc., 333 F.3d 572,
583 (5th Cir. 2003); Russell v. McKinney Hosp. Venture, 235 F.3d 219, 225–26
(5th Cir. 2000). 2 “The value of such remarks is dependent upon the content of the
remarks and the speaker.” Russell, 235 F.3d at 225 (citing Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 151–53, 120 S. Ct. 2097, 2111, 147 L. Ed. 2d
105 (2000)). A reviewing court may not ignore comments showing an age-related
animus merely because they were not made in the direct context of termination.
See Reeves, 530 U.S. at 152, 120 S. Ct. at 2111. But the Texas Supreme Court has
held that statements and remarks by the employer “may serve as evidence of
discrimination only if they are (1) related to the employee’s protected class,
(2) close in time to the employment decision, (3) made by an individual with
authority over the employment decision, and (4) related to the employment
decision at issue.” AutoZone, 272 S.W.3d at 593.
1
“Proving the employer’s stated reason for the firing is pretext is ordinarily sufficient to
permit the trier of fact to find that the employer was actually motivated by discrimination.”
Quantum Chem. Corp., 47 S.W.3d at 481–82 (citing Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 147–48, 120 S. Ct. 2097, 2108–09, 147 L. Ed. 2d 105 (2000)).
2
Federal cases are persuasive authority for interpreting the TCHRA. See Garcia, 372
S.W.3d at 633–34.
4
B. Legal-Sufficiency Standard of Review
When analyzing a challenge to the legal sufficiency of the evidence, we
consider the evidence in the light most favorable to the verdict and indulge every
reasonable inference that would support the challenged finding, crediting favorable
evidence if a reasonable factfinder could and disregarding contrary evidence unless
a reasonable factfinder could not. See City of Keller v. Wilson, 168 S.W.3d 802,
823, 827 (Tex. 2005). “Evidence is legally sufficient if it would enable reasonable
and fair-minded people to reach the verdict under review.” Id. at 827.
C. The Evidence
Davis was born in 1950 and began working at the Jefferson County
Purchasing Department in 1993. In April 2007, Douglas Anderson was hired as
the “purchasing agent”—the head of the department. Within a few weeks of taking
over the office, he met with each employee individually. Anderson testified that in
these meetings, he asked each employee his or her age.
Davis testified about her initial meeting with Anderson:
[Anderson] asked me—he started to ask. He said, “How old
are—” and then he said, “When did you graduate?” And I told him.
And then he did the math and said, “Oh my God.” He slid down in
his chair like he was going to slide off his chair. And he said, “You’re
old enough to be”—I thought he was gonna say his mother—but he
said “my oldest sister.”
....
He said, “Why are you still working here?” He said, “You’re
too old to be working.” He said, “You’re too old to be working here.”
And then he said—he asked me how old my husband was and I told
him. At that time I believe he was 59. And he asked me if he still
was working and I said yes, he was, he had worked at a refinery with
the same employer for I believe it was 39 years at that time. And,
again, he was just astounded.
5
He said, “He’s too old to be working. Why is he still working?
Why has he not retired?” Then he asked me why I had not retired yet.
And I said, “I’m not eligible. I’m not old enough. I haven’t
been here enough years for my age and my years of service to equal
75 years, which is the requirement for retiring.”
And he said, “Well, are there no incentives for early
retirement?”
And I said, “Not that I have ever heard of.” I didn’t know of
any.
And he said, “Well, there must be incentives for early
retirement.” He said, “I’m going to look into that and I’m gonna work
on that.”
Davis stated that she told Anderson she did not want to retire. Anderson
then asked her, “What could you possibly see yourself doing here in five years?”
She told him that she enjoyed her job and had not made any plans to retire.
Anderson testified that he did, in fact, speak with Davis during the initial one-on-
one meeting about her age, her husband’s age, and retirement.
Davis testified that she spoke to Deborah Clark about this meeting soon
afterward. Clark was the assistant purchasing agent and second-in-command in the
department. Clark had been Davis’s supervisor for many years. Clark told
Anderson that Davis was going to file a complaint about his comments on Davis’s
age. Anderson testified that around the same time, he asked Clark if he should fire
Davis. Clark told Anderson that she did not want Davis fired.
Davis testified further that Anderson would bring up her retirement and
“senior” status in every full-staff office meeting. She could not say for sure how
often the staff meetings were held—whether they were weekly or every other
week. 3 But Anderson repeatedly said that Davis would “be leaving the office first,
3
Another Purchasing Department employee, Tamara Edwards, testified that there were
weekly office meetings. Clark testified, “We had many staff meetings.”
6
that [she] would be the very first person to go.” Davis testified that Anderson
“would always say, ‘And Donna’s gonna be the next one to go. Donna’s gonna be
leaving soon. Donna will be gone soon. Donna will be the first one to go.”
Anderson testified that he did, in fact, make such a comment about Davis in a staff
meeting.4
Davis testified that Anderson would refer to her as “the senior person” and
say “she’s senior,” even though he knew that there were two other employees who
had been there longer than Davis. She testified, “[H]e would say I was the senior
person. And, so, I knew he was referring to my age, not to my years of service, not
to my experience in the office. He was talking about how old I was.” She
explained, “I didn’t have seniority. I was only the oldest one in there.” She
testified that Anderson would remind her “every chance he got” of how old she
was and that she needed to go and that it was time to retire: “And he reminded the
whole office how old I was and I needed to go and it was time to retire.” Davis
also testified about a comment Anderson made on her birthday in February 2008,
weeks before she was fired: “Mr. Anderson said, ‘It’s a good thing we don’t have
any candles because it would set that cake on fire.’”
Anderson testified that although he discussed Davis’s termination as early as
4
Other witnesses corroborated Davis’s testimony. For example, one Purchasing
Department employee, Tina Williams, provided a written statement, reporting that Anderson
would say in meetings that:
Donna would be retiring soon. Donna would tell him, “I have not made that
decision yet, I will be eligible to retire.” He would chuckle and would say “of
course ma’am.” When the retirement meetings were going on, he asked Donna if
she got her invite. Donna said, “Yes.” He said something like “Don’t miss it, and
make sure you go.”
Another Purchasing Department employee, Alyce Williams (no relation to Tina), testified
that in the first staff meeting, Anderson “said to Donna something to the effect of ‘You must be
about ready to retire’ or ‘we should look in to seeing how you can retire.’” Alyce thought this
comment was “directed at her age.”
7
a few weeks into his tenure in the Purchasing Department, he did not decide to
terminate Davis until the first week of December 2007. He claimed to have
decided to terminate Davis because she asked for a meeting with him and lodged a
number of complaints against Clark. Anderson described those complaints as
follows:
[Davis said] [t]hat Deb Clark had plotted with Commissioner Alfred
to have me fired; that Deb Clark had conspired against the previous
purchasing agent; that Deb Clark had complained to her subordinates
about spending late hours at the office alone with me; that she
complained to her subordinates about late night text messages; that
her husband Mr. Kenny Clark had become jealous of the number of
text messages and late hours at the office. The last thing that she
mentioned was that Deb Clark owed her $300.
Anderson testified that he did not believe the allegations; however, Clark
testified that Anderson told her to get a money order to repay Davis the money. 5
The next day, Anderson called Clark and Davis to his office. According to Davis,
Anderson handed her the money order and said “‘You’re never to speak of this
again. Ever.’ And . . . he looked straight at me and he said, ‘You are
reprehensible. . . . This is the reason this department has such a terrible
reputation.’”
5
Clark testified that she had borrowed $1,265 from Davis, her subordinate. Clark also
testified that she borrowed money from three other coworkers over the years, including from the
prior purchasing agent, whom Clark had reported to the district attorney’s office for using public
resources for a personal business. That purchasing agent resigned as a result of the allegation.
Clark also provided a written statement, stating in part that she told other employees that
“Anderson does not know his job and here is someone else I have to train.”
Further, Tina Williams wrote in her statement that Clark had spoken with Commissioner
Alfred about Anderson transferring another employee, effective December 1, 2007, out of the
Purchasing Department. The transferred employee had dwarfism. Williams wrote that Clark
told Commissioner Alfred that “Mr. Anderson did not feel comfortable around [the transferred
employee] and he uses the ‘m-word.’” Clark clarified that the “m-word” is “midget.”
Davis acknowledged that she talked with Anderson about the personal debt owed by
Clark.
8
Anderson testified that “at that point I decided that it was no longer going to
be a worthy working relationship, and I decided to terminate [Davis].” Clark, on
the other hand, testified that she did not want Davis terminated or disciplined.
Clark stated at trial that she repeatedly told Anderson she did not want Davis
terminated, and that she told him that she and Davis could work together.
According to Clark, Anderson said “there would be no peace in the office,” but
Davis testified that after the December meeting, there was no turmoil between her
and Clark.
Anderson also testified that “virtually all” of the departments Davis served
gave negative reports about her, but no evidence substantiating this testimony was
introduced at trial. Although Anderson named three people whom he said
complained about Davis’s work, only one testified at trial, and that witness denied
that she ever complained about Davis to anyone. Moreover, the County Clerk for
Jefferson County testified that when Anderson asked her about Davis, she told him
that there were no complaints about Davis or problems with her. Clark testified
that she did not receive complaints about Davis, and she did not know if Davis was
ever counseled about her job performance. Davis testified that she had good
working relationships with all the departments she purchased for.
Anderson testified that he did not fire Davis in December because he
“wasn’t gonna terminate anybody prior to Christmas,” and he did not fire her in
January, because “there was a health issue in her family.” He believed that Davis
was on vacation after that, so “March was the earliest time that was really
available.” Anderson fired Davis in March without providing her an explanation.6
Davis testified that she asked Anderson why he was terminating her employment,
6
Anderson gave her the opportunity to resign rather than be terminated. She declined to
resign.
9
and he stated that he would not discuss it with her.
After he fired her, Anderson told a man whom he had supervised in the
Navy to apply for the position. That man was about Anderson’s age and younger
than Davis, and he was hired to replace her. 7
D. Analysis of Age as a Motivating Factor
The County concedes that Davis satisfied the requirements to establish a
prima facie case of age discrimination. The County contends, however, that there
is no evidence “that the reason offered for termination was a pretext for
discrimination or that age discrimination was one of the reasons among many for
the termination.”8 We hold that the evidence is legally sufficient to support the
jury’s finding that age was a motivating factor for the County’s decision to
terminate Davis.
1. Direct Evidence of Age as a Motivating Factor
Davis presented direct evidence of a discriminatory animus based on
Anderson’s statements and remarks. Anderson was “an individual with authority
over the employment decision” who made statements “related to the employee’s
protected class” (i.e., age). See AutoZone, 272 S.W.3d at 593. But were these
statements “close in time to” and “related to” the employment decision at issue?
See id. Anderson’s statements in the one-on-one meeting that Davis was “too old
to be working here” and should retire were made nearly a year before her
termination. See Jackson v. Cal-W. Packaging Corp., 602 F.3d 374, 380–81 (5th
Cir. 2010) (holding that evidence of a comment made almost a year before
7
Anderson resigned a few months later; Davis’s replacement resigned four months after
that. Clark became the purchasing agent.
8
The County identified no cases in which the authoring court concluded that the evidence
before it was legally insufficient to support a finding that age was a motivating factor for an
adverse employment action.
10
termination was insufficient to raise a genuine issue of material fact as to pretext);
Auguster v. Vermilion Parish Sch. Bd., 249 F.3d 400, 405 (5th Cir. 2001) (holding
that where a comment about the school having problems in the past with black
coaches was made nearly a year before the non-renewal of the employee’s teaching
contract and the comment was “insignificant in comparison to the evidence of [the
employee’s] unfitness as a teacher,” it was insufficient to establish discrimination).
Unlike the plaintiffs in Jackson and Auguster, however, Davis presented
evidence that Anderson considered firing Davis around the same time that he made
the comments in the one-on-one meeting. He also told Davis that she was “too old
to be working” and should retire, which directly related to her non-employment
with the County. We cannot ignore “‘the potentially damning nature’ of
[Anderson’s] age-related comments” merely because they might not have been
made in the direct context of her termination; to do so would be to fail to draw all
reasonable inferences in favor of the jury’s verdict. See Reeves, 530 U.S. at 152,
120 S. Ct. at 2111 (explaining that the court of appeals erred by ignoring “critical
evidence” of comments by a direct supervisor that the employee “was so old [he]
must have come over on the Mayflower” and “was too damn old to do [his] job”;
such evidence supported the jury’s verdict that age was a motivating factor for the
employee’s termination).
A comment such as “you’re too old to be working here” is a direct and
unambiguous statement that would allow a reasonable jury to conclude that age
was an impermissible factor in the decision to terminate Davis. Compare Russo v.
Smith Int’l, Inc., 93 S.W.3d 428, 439 (Tex. App.—Houston [14th Dist.] 2002, pet.
denied) (concluding that a human-resource manager’s notes listing employees’
ages was not probative of the employer’s intent to discriminate, because for an
age-based comment to be probative, “it must be direct and unambiguous, allowing
11
a reasonable jury to conclude without inferences or presumptions that age was an
impermissible factor in the decision to terminate the employee”), with Rachid v.
Jack In The Box, Inc., 376 F.3d 305, 315–16 (5th Cir. 2004) (holding that a rational
factfinder could conclude that age played a role in the employer’s decision to
terminate the employee when the supervisor made numerous ageist comments,
such as telling the employee “you’re too old” and suggesting the employee was
“probably in bed or he’s sleeping by [now] because of his age” (alterations in
original)), and Ostrowski v. Atl. Mut. Ins. Cos., 968 F.2d 171, 183 (2d Cir. 1992)
(noting the “ample” evidence of age discrimination when the employer told the
terminated employee he should not have hired other older employees who “should
have been, or should have remained, retired,” and the employer suggested there
was “no way [a 60-year-old employee] can contribute” or that a 64-year-old
employee could be “superior”); see also Thornbrough v. Columbus & Greenville
R.R. Co., 760 F.2d 633, 638 (5th Cir. 1985) (discussing the usual lack of direct
evidence in an employment-discrimination case because “[e]mployers are rarely so
cooperative as to . . . inform a dismissed employee candidly that he is too old for
the job”), abrogated on other grounds by St. Mary’s Honor Ctr. v. Hicks, 509 U.S.
502, 512–13, 113 S. Ct. 2742, 2750, 125 L. Ed. 2d 407 (1993).
Further, Davis testified that Anderson remarked at every staff meeting—as
often as every week—that Davis was retiring soon, was the next person to go, and
was “senior,” although he knew that she did not intend to retire and was senior
only in age and not experience. These comments suggest a link between Davis’s
age and her lack of continued employment with the County. Anderson also made
at least one indirect age-related comment (about her birthday cake catching fire)
several weeks before her termination. Frequent references to Davis’s age support
an inference of age discrimination. See Ezell v. Potter, 400 F.3d 1041, 1051 (7th
12
Cir. 2005) (noting that there was direct evidence of age discrimination where two
supervisors expressed a desire to replace older workers with younger workers, and
one supervisor “frequently made disparaging remarks about older workers, referred
often to [the employee’s] gray hair and beard, commented on his slowness and
suggested that because of his speed, he should consider another line of work”);
Russell, 235 F.3d at 226 (explaining that a supervisor’s frequent reference to the
employee as “old bitch” supported the jury’s verdict that the employer had
discriminatory motivations; “[t]hat [the employer] did not explicitly remark to [the
employee], ‘I do not like you because you are old,’ does not render [the
employee’s] evidence infirm.”); Buckley v. Hosp. Corp. of Am., Inc., 758 F.2d
1525, 1530 (11th Cir. 1985) (reasoning that there was “substantial direct evidence”
of discriminatory intent because the supervisor expressed surprise at the longevity
of staff members, indicated that the employer needed “new blood” and that he
intended to recruit younger employees, and commented on the employee’s
“advanced age” as a factor causing her stress); Williams-Pyro, Inc. v. Barbour, 408
S.W.3d 467, 480 (Tex. App.—El Paso 2013, pet. filed) (holding that there was
legally sufficient direct evidence that age was a motivating factor in termination
where the manager made comments “nonstop,” “three or four times a week,” and
“all the time” that the employee was “old” and had “gray hair” and “sagging
breasts”); see also Hansard v. Pepsi-Cola Metro. Bottling Co., 865 F.2d 1461,
1466 (5th Cir. 1989) (“Indirect references to an employee’s age can support an
inference of age discrimination.”), cited in Machinchick v. PB Power, Inc., 398
F.3d 345, 353 & n.25 (5th Cir. 2005) (further noting that examples of such indirect
age-related comments are “that an employee needed to look ‘sharp’ if he were
going to seek a new job, and that he was unwilling and unable to ‘adapt’ to
change” (quoting Rachid, 376 F.3d at 315)).
13
Based on the direct evidence of what Anderson said and did, reasonable and
fair-minded people could have found that age was a motivating factor in Davis’s
termination.
2. Pretext and Additional Evidence
Davis also adduced evidence that the County’s proffered reason for
termination was a pretext for discrimination. Regarding the reason offered for
termination, the County contends on appeal that Davis’s complaints about Clark
“clearly justified [Anderson’s] conclusion . . . that there was ‘no longer going to be
a worthy working relationship.’” 9
But Clark testified that she informed Anderson that she and Davis could
work together, and she repeatedly told him that she did not want Davis fired.
Davis similarly testified that there was no turmoil between Clark and her. And
finally, considering the three-month delay in firing Davis after she complained
about Clark, along with evidence that Anderson had wanted to fire Davis several
weeks into his tenure, the jury could have believed that Davis’s complaint about
Clark was not Anderson’s sole motive for firing Davis. See City of Keller, 168
S.W.3d at 819 (“Jurors are the sole judges of the credibility of the witnesses and
the weight to give their testimony. They may choose to believe one witness and
disbelieve another.”).
When the evidence of pretext is considered in light of Anderson’s repeated
references to Davis’s age—which were made in the context of Davis’s lack of
future employment with the County—a reasonable jury could have inferred that
9
On appeal, the County does not suggest that Davis’s job performance generally was a
reason for her termination. Regardless, the testimony at trial from employees in other
departments and employees in the Purchasing Department, and the meager evidence of poor
work performance in general, would have enabled the jury to conclude that Davis’s job
performance was not the sole motivating factor for her termination.
14
Anderson intended to make Davis “the next one to go” at least in part because of
her “senior” age. See Knight v. Auto Zone, Inc., 494 F.3d 727, 730–31, 736 (8th
Cir. 2007) (holding that there was legally sufficient evidence of age discrimination,
because although the employer argued that the employee was terminated for
engaging in verbally abusive behavior, the employee offered evidence that his
work performance had been strong; that the manager documented no complaints
about the employee’s behavior before initiating an investigation; and that the
manager repeatedly made negative age-related comments, such as referring to the
employee as “old man” and “old fart” and telling the employee he was “too old to
do his job”); Fisher v. Pharmacia & Upjohn, 225 F.3d 915, 922–23 (8th Cir. 2000)
(holding that a factfinder could conclude that age was a determinative factor
because even stray remarks, such as referring to the employee as “the old guy” and
saying “[w]e need to get rid of the old guys,” gave rise to an inference of
discrimination when considered in conjunction with the prima facie case and
evidence of pretext); see also Quantum Chem. Corp., 47 S.W.3d at 481–82
(“Proving the employer’s stated reason for the firing is pretext is ordinarily
sufficient to permit the trier of fact to find that the employer was actually
motivated by discrimination.”).
On this record, the jury reasonably could have rejected the County’s
explanation for Davis’s termination and concluded that Anderson’s decision to
terminate her employment was motivated in part by Davis’s age. We therefore
overrule the County’s seventh issue.
II. SECTION 1983 FREE SPEECH
In its first six issues and eighth issue, the County contends the evidence is
legally insufficient to support the jury’s various findings related to Davis’s Section
1983 claim based on the exercise of her First Amendment right to free speech.
15
Neither party has briefed the question of whether we must consider the sufficiency
of the evidence for this claim if we conclude there is legally sufficient evidence of
age discrimination, as we concluded above.
Ordinarily, when a “judgment rests on multiple theories of recovery and one
theory is valid, an appellate court need not address other theories.” Barbarawi v.
Ahmad, No. 14-07-00790-CV, 2008 WL 2261433, at *4 n.2 (Tex. App.—Houston
[14th Dist.] May 27, 2008, no pet.) (mem. op.); accord Harrison v. J.W. Nelson
Transp., Inc., No. 14-09-00273-CV, 2010 WL 4013534, at *3 (Tex. App.—
Houston [14th Dist.] Oct. 14, 2010, no pet.) (mem. op.) (declining to address
negligence claims because the breach-of-warranty claim fully supported the
damages and attorney’s fees awarded). However, in its seventh issue (regarding
age discrimination), the County contends that Davis’s age-discrimination claim, “if
supported by the evidence, would entitle [Davis] to a recovery of back wages and
equitable relief only.” For this proposition, the County cites a case interpreting the
federal Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C.
§ 626 (2012). See generally Lorillard v. Pons, 434 U.S. 575, 98 S. Ct. 866, 55 L.
Ed. 2d 40 (1978).10
But Davis did not sue for a violation of the ADEA. She claimed a violation
of the TCHRA, which authorizes recovery of each category of damages assessed
by the jury. 11 See TEX. LAB. CODE ANN. § 21.2585(a), (d) (West 2006) (providing
10
The damages assessed by the jury include some elements that are not recoverable under
the ADEA, such as mental anguish. See Comm’r of Internal Revenue v. Schleier, 515 U.S. 323,
326, 115 S. Ct. 2159, 2162, 132 L. Ed. 2d 294 (1995) (“[T]he Courts of Appeals have
unanimously held . . . that the ADEA does not permit a separate recovery of compensatory
damages for pain and suffering or emotional distress.”).
11
The jury awarded damages as follows:
(1) Counseling expenses incurred in the past: $0.
(2) Mental anguish in the past: $50,000.
16
that damages for an unlawful intentional employment practice include
compensatory damages such as “future pecuniary losses, emotional pain, suffering,
inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary
losses”); id. § 21.259 (authorizing recovery of attorney’s fees); Edwards v. Aaron
Rents, Inc., 482 F. Supp. 2d 803, 816, 819 (W.D. Tex. 2006) (noting that TCHRA
allows for recovery of back pay, front pay, and compensatory damages such as
mental anguish). Because Davis successfully asserted a cause of action for which
these damages are available, it is unnecessary for us to address the County’s issues
numbered one through six and eight.
III. FUTURE MENTAL ANGUISH
The County’s ninth issue is stated as follows: “The verdict of the jury as to
damages is so outrageous that it indicates that they failed to give the Defendant a
fair hearing of the evidence it presented.” Under the argument section of its brief,
however, the County also contends, “There simply is a complete void in the
evidence that would, by inference, or otherwise, lead to such an extraordinary
award. . . . Appellant does contest the legal sufficiency of the evidence on
damages. There is no evidence at all of future mental anguish.” We therefore
understand the County to challenge both the legal and factual sufficiency of the
(3) Mental Anguish that in reasonable probability Plaintiff will suffer in the future:
$500,000.
(4) Loss of earnings in the past: $258,090.
(5) Loss of earnings that in reasonable probability Plaintiff will suffer in the future:
$318,147.
(6) Loss of retirement, health, medical, and life insurance, and other similar fringe
benefits in the past: $143,100.
(7) Loss of retirement, health, medical, and life insurance, and other similar fringe
benefits that in reasonable probability Plaintiff will suffer in the future: $38,808.
The trial court also awarded $91,908.75 in attorney’s fees and $1,867.58 in court costs
and expenses, as well as pre- and post-judgment interest.
17
evidence supporting the jury’s finding that $500,000 would fairly and reasonably
compensate Davis for the mental anguish that, in reasonable probability, she will
suffer in the future as a result of the termination of her employment.12
Where, as here, there were no objections to the jury charge, we measure the
sufficiency of the evidence by the charge as submitted. Romero v. KPH Consol.,
Inc., 166 S.W.3d 212, 221 & n.30 (Tex. 2005). In the charge, “mental anguish”
was defined as follows:
“Mental anguish”, as [an] element of damages, implies [a] relatively
high degree of mental pain and distress; it is more than mere
disappointment, anger, resentment, or embarrassment, although it may
include all of those, and it includes mental sensations of pain resulting
from such painful emotions as grief, severe disappointment,
indignation, wounded pride, shame, despair, and/or public
humiliation.
See Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995) (stating the test
for proof of mental anguish). Regarding future mental anguish, the jury was
instructed to find the amount that would fairly and reasonably compensate Davis
for mental anguish “that in reasonable probability [she] will suffer in the future” as
a result of her termination. See Adams v. YMCA of San Antonio, 265 S.W.3d 915,
917 (Tex. 2008) (per curiam) (holding that an award for future mental anguish
must be supported by evidence demonstrating a reasonable probability that the
claimant will suffer compensable mental anguish in the future). But there is no
12
Our dissenting colleague would hold that the County waived this issue by failing to cite
to the record, but when an appellant contends that there is “a complete absence of evidence” on
an essential element, there is nothing specific to cite, and the appellate court must review the
entire record. See City of Arlington v. State Farm Lloyds, 145 S.W.3d 165, 167–68 (Tex. 2004)
(per curiam). The County argued that the evidence of future mental anguish “is a complete void”
and that “[t]here is no evidence at all of future mental anguish.” We accordingly have reviewed
the entire record, and the County is right: there is no such evidence, and thus, there was nothing
to cite. Although the dissent also points out that the County did not identify the standard of
review, this is not required by the Texas Rules of Appellate Procedure.
18
evidence that there is a reasonable probability that Davis will suffer a relatively
high degree of mental pain and distress in the future as a result of her termination.
Davis testified only about mental anguish she had suffered in the past. She
was asked how she felt (1) when being escorted to her desk to remove her things,
(2) when she spoke with one of the county commissioners immediately after
leaving the office on the day she was terminated, and (3) when she left her
attorney’s office the next day after consulting him about her termination. Davis
then was asked how she spent the next few days or month. That exchange was as
follows:
Q: So, what happened? How did you spend the next few days not
going to work? I don’t know. Month? How long? What did
you do?
A: I was—I stayed in my house. I stayed in the house. I just
wouldn’t go outside. I didn’t want to go anywhere. I was
mortified at being fired. Just it hurt me. It really hurt me really
bad because I love my job. I did a good job. . . . I felt really
injured. I felt hurt. I was sick. I was really sick at home.
Every time the phone would ring or if someone called to talk to
me about it or someone wanted to come over and visit with me
about it, I got sick to my stomach. I had intestinal problems. I
had to go to my doctor and get medication for it.
....
Q: And did she give you medication?
A: She did. I had to get some medication for my colon. And I had
something—I think it’s called Ativan I got a generic of it. So, I
don’t know the real name. I don’t know.
Q: What was that for?
A: That was a sedative sort of medicine.
Q: And did there come a time when you went and saw another
doctor?
A: Yes, I did. I saw . . . a psychiatrist here in Beaumont.
19
Q: Why did you go to a psychiatrist?
A: I couldn’t sleep at night. I didn’t want to go anywhere. I was
embarrassed. I cried all the time. I cried all the time. I cried at
night. I cried during the day. I just cried all the time. I couldn't
sleep at night. I mean, my husband and I, we—he had bought
this—a camp in Louisiana on a river, on a creek. I—I couldn’t
go there. I couldn’t be—I couldn’t be away from my house. I
just couldn’t go somewhere. I couldn’t leave the house because
I just felt horrible. I don’t know how to explain it. I felt really
bad all the time. I was depressed really. I was depressed. My
husband said I had to go because he couldn’t stand it any more
because he didn’t like what was happening to me.
Davis was not asked if she continues to have intestinal problems or insomnia, and
she did not testify that she is still under a doctor’s care or has a continuing need to
take medication. Although there is evidence that Davis suffered “grief, severe
disappointment, indignation, wounded pride, shame, despair, and/or public
humiliation” at one time, all of her testimony about mental anguish was presented
in the past tense. Not only is there no evidence that there is a reasonable
probability that Davis will suffer compensable mental anguish in the future, there
is not even any evidence that she was continuing to experience mental anguish at
the time of trial.
We sustain the County’s ninth issue.
20
IV. CONCLUSION
Although we have overruled each of the County’s issues concerning liability
and the scope of available relief, we agree that there is no evidence of future
mental anguish. We accordingly modify the judgment to eliminate the award of
$500,000 for future mental anguish, and affirm the judgment as modified.
/s/ Tracy Christopher
Justice
Panel consists of Justices Christopher, Jamison, and McCally (McCally, J.,
dissenting).
21
Affirmed as Modified and Majority and Dissenting Memorandum Opinions
filed August 28, 2014.
In The
Fourteenth Court of Appeals
NO. 14-13-00663-CV
JEFFERSON COUNTY, TEXAS, Appellant
V.
DONNA DAVIS, Appellee
On Appeal from the 60th District Court
Jefferson County, Texas
Trial Court Cause No. B-182,252
DISSENTING MEMORANDUM OPINION
Assuming, as the majority concludes, that Issue No. 9 of the County’s brief
raises a legal- or factual-sufficiency point of error regarding future mental anguish
damages, I agree with Davis that we should not reach the issue because of the
County’s briefing waiver. 1 Therefore, I would affirm the trial court’s judgment in
1
The County’s first eight issues begin with the statement, “There is no evidence . . . .”
Issue No. 9 complains about a “‘run-away’ jury” and states: “The verdict of the jury as to
its entirety. Because the majority reaches Issue No. 9 and reverses on that basis, I
respectfully dissent.
Through her appellee’s brief, Davis urges that the County’s wholesale
failure to cite to the record waives any sufficiency challenge to damages. Davis
notes that the only category of damages attacked by the County is future mental
anguish damages. By its nature, evidence of future mental anguish is speculative.
Therefore, we call upon the jury to evaluate non-speculative evidence and draw
reasonable inferences about the future. Here, the County does not challenge the
sufficiency of the evidence supporting past mental anguish damages. I believe the
County, as appellant, has committed textbook briefing waiver by failing to cite to
or otherwise analyze why the unchallenged evidence underpinning the past mental
anguish element does not in any way support future mental anguish damages or
does not support the amount awarded.
When an appellant’s brief fails to “contain a clear and concise argument for
the contentions made, with appropriate citations to authorities and to the record,”
Tex. R. App. P. 38.1(i), then Rule 38.9 affords the appellate court two choices:
(1) deem the appellant’s issue waived; or (2) exercise discretion to allow
amendment or rebriefing. Fredonia State Bank v. Gen. Am. Life Ins. Co., 881
S.W.2d 279, 284 (Tex. 1994) (noting the “settled rule that an appellate court has
some discretion to choose between deeming a point waived and allowing
amendment or rebriefing”); Rendleman v. Clarke, 909 S.W.2d 56, 59 (Tex. App.—
Houston [14th Dist.] 1995, writ dism’d) (same). We construe briefs liberally,
expect substantial compliance, and “may” require a brief to be amended,
supplemented, or redrawn for formal defects, and we “may” require additional
damages is so outrageous that it indicates that they failed to give the Defendant a fair hearing of
the evidence it presented.”
2
briefing for substantive defects. Tex. R. App. 38.9. The rule does not afford an
appellate court discretion to ignore or forgive briefing deficiencies and address the
merits of an appellant’s point of error that does not comply with this rule.
I do not endorse a cavalier application of briefing waiver. For example, an
appellant’s bare statement that there is “no evidence” does not waive a legal
sufficiency point when the facts on appeal are undisputed and the gravamen of the
sufficiency point is a question of law that the appellant has amply supported with
citations to relevant authorities. See City of Arlington v. State Farm Lloyds, 145
S.W.3d 165, 167–68 (Tex. 2004). Similarly, an appellant does not waive the point
when the appellant cites to all of the material facts in a statement of facts and
merely fails to repeat the citations in its analysis. See id. at 167. I completely
agree that the Supreme Court rejects bright-line briefing waiver under these
circumstances. See id. at 167–68.
However, the Supreme Court also embraces briefing waiver where an
appellant fails to cite to the record to support a no-evidence argument that the
evidence is so weak as to do no more than create a mere surmise or suspicion—
when there is no more than a mere scintilla of evidence. See id. at 167 (citing
Robert W. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error,
38 Tex. L. Rev. 361, 363 (1960)). Thus, citation to the record is required “when
the vital fact must be inferred from other relevant facts and circumstances which
are proved.” See Calvert, supra, at 363.
Here, the County suggests that Davis’s evidence would not enable the jury to
reach such an “outrageous award” of future mental anguish damages, which is “so
excessive that the jury must have been dominated by passion or prejudice and
could not have fairly weighed disputed evidence on the liability issue.” But, the
amount of a party’s future mental anguish damages is one of those “vital facts” that
3
may be inferred from other circumstantial evidence. See Saenz v. Fid. & Guar.
Ins. Underwriters, 925 S.W.2d 607, 614 (Tex. 1996) (direct evidence not always
required). Texas law permits jurors to make a reasonable inference that a party
will suffer future mental anguish damages. Adams v. YMCA of San Antonio, 265
S.W.3d 915, 918 (Tex. 2008); see Wichita Cnty. v. Hart, 892 S.W.2d 912, 927
(Tex. App.—Austin 1994) (jury could infer future mental anguish damages from
past and present mental anguish when the terminated employee had not been
reinstated; distinguishing case where the employee had been reinstated), rev’d on
other grounds, 917 S.W.2d 779 (Tex. 1996).
The County necessarily contends that the jury could not make a reasonable
inference from the unchallenged evidence of past mental anguish that Davis’s past
mental anguish would continue in the future. But, the County does no more to
support that contention than mention the words “no evidence.”
Therefore, I view the County’s briefing of its ninth issue regarding future
mental anguish damages as deficient to an extent that liberal construction cannot
repair. Within its ninth issue, the County does not provide a single citation to any
part of the 640-page transcript of trial testimony, which includes testimony from
the plaintiff, the plaintiff’s co-workers, and the plaintiff’s damages expert who was
also a close relative. The County does not provide a single citation to any one of
the 200 pages of exhibits. And, the County does not refer to any of the record
citations within the statement of facts, perhaps because all such citations pertain to
the merits of liability. The County presents no analysis of how the evidence
adduced in this five-day trial—including the unchallenged evidence of past mental
anguish—when viewed under the appropriate standard of review,2 amounts to
2
The County does not provide the standard of review for legal or factually sufficiency.
Nor does the county cite any cases addressing the sufficiency of the evidence for future mental
anguish damages.
4
insufficient evidence or no evidence of future mental anguish damages.
Because Davis urged briefing waiver on this point, the County had ample
opportunity to rebrief its ninth issue but did not. Because the County failed to
rebrief, I would deem the County’s ninth issue waived. See Rendleman, 909
S.W.2d at 59 (deeming the appellant’s sufficiency issue waived because the
appellant failed to cite to the record; declining to exercise discretion to allow
rebriefing because the appellant failed to rebrief during the seven months since the
appellee’s brief had been filed).
Accordingly, I respectfully dissent.
/s/ Sharon McCally
Justice
Panel consists of Justices Christopher, Jamison, and McCally. (Christopher, J.,
Majority).
5
Supplemental Memorandum Opinion on Denial of Rehearing filed October
30, 2014.
In The
Fourteenth Court of Appeals
NO. 14-13-00663-CV
JEFFERSON COUNTY, TEXAS, Appellant
V.
DONNA DAVIS, Appellee
On Appeal from the 60th District Court
Jefferson County, Texas
Trial Court Cause No. B-182,252
SUPPLEMENTAL MEMORANDUM OPINION
ON DENIAL OF REHEARING
Although we deny the parties’ respective motions for rehearing, we issue
this supplemental memorandum opinion to briefly address a jurisdictional
argument raised by the County.
In its motion for rehearing, the County attempts to challenge damage
findings other than the assessment of damages for future mental anguish. Because
future mental anguish was the only damage finding that was even arguably
challenged in the County’s brief, its challenge to the other damage findings are
waived. See Cajun Constructors, Inc. v. Velasco Drainage Dist., 380 S.W.3d 819,
821 n.1 (Tex. App.—Houston [14th Dist.] 2012, pet. denied) (sub. op.); Harris
County v. Nagel, 349 S.W.3d 769, 790 (Tex. App.—Houston [14th Dist.] 2011,
pet. denied) (sub. op.).
The County contends, however, that if the award of front pay constitutes
compensable damages, then that award is subject to a $300,000 damages cap. The
County further asserts that “the front pay issue implicates subject matter
jurisdiction,” and suggests that we properly can consider its application whenever
the issue is raised. See Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440,
443–44 (Tex. 1993) (“Subject matter jurisdiction is never presumed and cannot be
waived.”).
The County is mistaken in asserting that we can consider this argument. The
damages cap concerns immunity from liability, not immunity from suit; thus,
contrary to the County’s argument, a damages cap does not affect subject-matter
jurisdiction. It instead is an affirmative defense that is waived if not pleaded. See
Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999) (per curiam); Tex.
Comm’n on Human Rights v. Morrison, 346 S.W.3d 838, 850 (Tex. App.—Austin
2011), rev’d on other grounds, 381 S.W.3d 533 (Tex. 2012) (per curiam); O’Dell
v. Wright, 320 S.W.3d 505, 515–16 (Tex. App.—Fort Worth 2010, pet. denied);
Shoreline, Inc. v. Hisel, 115 S.W.3d 21, 25 (Tex. App.—Corpus Christi 2003, pet.
denied); see also Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 896–97,
904 (Tex. 2000) (determining that a damages cap was adequately raised in
plaintiff’s pleading and referring to such a “liability limitation” as an affirmative
defense).
2
Because the damages cap was neither pleaded nor argued before now, the
arguments concerning its application are waived.
/s/ Tracy Christopher
Justice
Panel consists of Justices Christopher, Jamison, and McCally.
3
§ 21.125. Clarifying Prohibition Against Impermissible..., TX LABOR § 21.125
Vernon's Texas Statutes and Codes Annotated
Labor Code (Refs & Annos)
Title 2. Protection of Laborers
Subtitle A. Employment Discrimination
Chapter 21. Employment Discrimination (Refs & Annos)
Subchapter C. Application; Exceptions
V.T.C.A., Labor Code § 21.125
§ 21.125. Clarifying Prohibition Against Impermissible Consideration of Race,
Color, Sex, National Origin, Religion, Age, or Disability in Employment Practices
Currentness
(a) Except as otherwise provided by this chapter, an unlawful employment practice is established when the complainant
demonstrates that race, color, sex, national origin, religion, age, or disability was a motivating factor for an employment practice,
even if other factors also motivated the practice, unless race, color, sex, national origin, religion, age, or disability is combined
with objective job-related factors to attain diversity in the employer's work force.
(b) In a complaint in which a complainant proves a violation under Subsection (a) and a respondent demonstrates that the
respondent would have taken the same action in the absence of the impermissible motivating factor, the court may grant
declaratory relief, injunctive relief except as otherwise provided by this subsection, and attorney's fees and costs demonstrated
to be directly attributable only to the pursuit of a complaint under Subsection (a), but may not award damages or issue an order
requiring an admission, reinstatement, hiring, promotion, or back pay.
Credits
Added by Acts 1995, 74th Leg., ch. 76, § 9.05(a), eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 1126, § 1, eff.
Sept. 1, 1997.
Notes of Decisions (31)
V. T. C. A., Labor Code § 21.125, TX LABOR § 21.125
Current through the end of the 2013 Third Called Session of the 83rd Legislature
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
§ 21.258. Injunction; Equitable Relief, TX LABOR § 21.258
Vernon's Texas Statutes and Codes Annotated
Labor Code (Refs & Annos)
Title 2. Protection of Laborers
Subtitle A. Employment Discrimination
Chapter 21. Employment Discrimination (Refs & Annos)
Subchapter F. Judicial Enforcement
V.T.C.A., Labor Code § 21.258
§ 21.258. Injunction; Equitable Relief
Currentness
(a) On finding that a respondent engaged in an unlawful employment practice as alleged in a complaint, a court may:
(1) prohibit by injunction the respondent from engaging in an unlawful employment practice; and
(2) order additional equitable relief as may be appropriate.
(b) Additional equitable relief may include:
(1) hiring or reinstating with or without back pay;
(2) upgrading an employee with or without pay;
(3) admitting to or restoring union membership;
(4) admitting to or participating in a guidance program, apprenticeship, or on-the-job training or other training or retraining
program, using objective job-related criteria in admitting an individual to a program;
(5) reporting on the manner of compliance with the terms of a final order issued under this chapter; and
(6) paying court costs.
(c) Liability under a back pay award may not accrue for a date more than two years before the date a complaint is filed with
the commission. Interim earnings, workers' compensation benefits, and unemployment compensation benefits received operate
to reduce the back pay otherwise allowable.
Credits
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
§ 21.258. Injunction; Equitable Relief, TX LABOR § 21.258
Notes of Decisions (31)
V. T. C. A., Labor Code § 21.258, TX LABOR § 21.258
Current through the end of the 2013 Third Called Session of the 83rd Legislature
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
§ 21.2585. Compensatory and Punitive Damages, TX LABOR § 21.2585
Vernon's Texas Statutes and Codes Annotated
Labor Code (Refs & Annos)
Title 2. Protection of Laborers
Subtitle A. Employment Discrimination
Chapter 21. Employment Discrimination (Refs & Annos)
Subchapter F. Judicial Enforcement
V.T.C.A., Labor Code § 21.2585
§ 21.2585. Compensatory and Punitive Damages
Currentness
(a) On finding that a respondent engaged in an unlawful intentional employment practice as alleged in a complaint, a court
may, as provided by this section, award:
(1) compensatory damages; and
(2) punitive damages.
(b) A complainant may recover punitive damages against a respondent, other than a respondent that is a governmental entity, if
the complainant demonstrates that the respondent engaged in a discriminatory practice with malice or with reckless indifference
to the state-protected rights of an aggrieved individual.
(c) Compensatory damages awarded under this section may not include:
(1) back pay;
(2) interest on back pay; or
(3) other relief authorized under Section 21.258(b).
(d) The sum of the amount of compensatory damages awarded under this section for future pecuniary losses, emotional pain,
suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses and the amount of punitive
damages awarded under this section may not exceed, for each complainant:
(1) $50,000 in the case of a respondent that has fewer than 101 employees;
(2) $100,000 in the case of a respondent that has more than 100 and fewer than 201 employees;
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
§ 21.2585. Compensatory and Punitive Damages, TX LABOR § 21.2585
(3) $200,000 in the case of a respondent that has more than 200 and fewer than 501 employees; and
(4) $300,000 in the case of a respondent that has more than 500 employees.
(e) For the purposes of Subsection (d), in determining the number of employees of a respondent, the requisite number of
employees must be employed by the respondent for each of 20 or more calendar weeks in the current or preceding calendar year.
Credits
Added by Acts 1995, 74th Leg., ch. 76, § 9.07(b), eff. Sept. 1, 1995. Amended by Acts 1999, 76th Leg., ch. 872, § 13, eff.
Sept. 1, 1999.
Notes of Decisions (90)
V. T. C. A., Labor Code § 21.2585, TX LABOR § 21.2585
Current through the end of the 2013 Third Called Session of the 83rd Legislature
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
§ 2000e-5. Enforcement provisions, 42 USCA § 2000e-5
United States Code Annotated
Title 42. The Public Health and Welfare
Chapter 21. Civil Rights (Refs & Annos)
Subchapter VI. Equal Employment Opportunities (Refs & Annos)
42 U.S.C.A. § 2000e-5
§ 2000e-5. Enforcement provisions
Currentness

(a) Power of Commission to prevent unlawful employment practices
The Commission is empowered, as hereinafter provided, to prevent any person from engaging in any unlawful employment
practice as set forth in section 2000e-2 or 2000e-3 of this title.
(b) Charges by persons aggrieved or member of Commission of unlawful employment practices by employers, etc.; filing;
allegations; notice to respondent; contents of notice; investigation by Commission; contents of charges; prohibition on disclosure
of charges; determination of reasonable cause; conference, conciliation, and persuasion for elimination of unlawful practices;
prohibition on disclosure of informal endeavors to end unlawful practices; use of evidence in subsequent proceedings; penalties
for disclosure of information; time for determination of reasonable cause
Whenever a charge is filed by or on behalf of a person claiming to be aggrieved, or by a member of the Commission, alleging that
an employer, employment agency, labor organization, or joint labor-management committee controlling apprenticeship or other
training or retraining, including on-the-job training programs, has engaged in an unlawful employment practice, the Commission
shall serve a notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice) on
such employer, employment agency, labor organization, or joint labor-management committee (hereinafter referred to as the
“respondent”) within ten days, and shall make an investigation thereof. Charges shall be in writing under oath or affirmation
and shall contain such information and be in such form as the Commission requires. Charges shall not be made public by the
Commission. If the Commission determines after such investigation that there is not reasonable cause to believe that the charge
is true, it shall dismiss the charge and promptly notify the person claiming to be aggrieved and the respondent of its action. In
determining whether reasonable cause exists, the Commission shall accord substantial weight to final findings and orders made
by State or local authorities in proceedings commenced under State or local law pursuant to the requirements of subsections
(c) and (d) of this section. If the Commission determines after such investigation that there is reasonable cause to believe that
the charge is true, the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal
methods of conference, conciliation, and persuasion. Nothing said or done during and as a part of such informal endeavors
may be made public by the Commission, its officers or employees, or used as evidence in a subsequent proceeding without the
written consent of the persons concerned. Any person who makes public information in violation of this subsection shall be
fined not more than $1,000 or imprisoned for not more than one year, or both. The Commission shall make its determination
on reasonable cause as promptly as possible and, so far as practicable, not later than one hundred and twenty days from the
filing of the charge or, where applicable under subsection (c) or (d) of this section, from the date upon which the Commission
is authorized to take action with respect to the charge.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
§ 2000e-5. Enforcement provisions, 42 USCA § 2000e-5
(c) State or local enforcement proceedings; notification of State or local authority; time for filing charges with Commission;
commencement of proceedings
In the case of an alleged unlawful employment practice occurring in a State, or political subdivision of a State, which has a State
or local law prohibiting the unlawful employment practice alleged and establishing or authorizing a State or local authority to
grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof,
no charge may be filed under subsection (a) 1 of this section by the person aggrieved before the expiration of sixty days after
proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated, provided
that such sixty-day period shall be extended to one hundred and twenty days during the first year after the effective date of
such State or local law. If any requirement for the commencement of such proceedings is imposed by a State or local authority
other than a requirement of the filing of a written and signed statement of the facts upon which the proceeding is based, the
proceeding shall be deemed to have been commenced for the purposes of this subsection at the time such statement is sent by
registered mail to the appropriate State or local authority.
(d) State or local enforcement proceedings; notification of State or local authority; time for action on charges by Commission
In the case of any charge filed by a member of the Commission alleging an unlawful employment practice occurring in a State
or political subdivision of a State which has a State or local law prohibiting the practice alleged and establishing or authorizing
a State or local authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon
receiving notice thereof, the Commission shall, before taking any action with respect to such charge, notify the appropriate
State or local officials and, upon request, afford them a reasonable time, but not less than sixty days (provided that such sixty-
day period shall be extended to one hundred and twenty days during the first year after the effective day of such State or local
law), unless a shorter period is requested, to act under such State or local law to remedy the practice alleged.
(e) Time for filing charges; time for service of notice of charge on respondent; filing of charge by Commission with State or
local agency; seniority system
(1) A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice
occurred and notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice)
shall be served upon the person against whom such charge is made within ten days thereafter, except that in a case of an unlawful
employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency
with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving
notice thereof, such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged
unlawful employment practice occurred, or within thirty days after receiving notice that the State or local agency has terminated
the proceedings under the State or local law, whichever is earlier, and a copy of such charge shall be filed by the Commission
with the State or local agency.
(2) For purposes of this section, an unlawful employment practice occurs, with respect to a seniority system that has been
adopted for an intentionally discriminatory purpose in violation of this subchapter (whether or not that discriminatory purpose
is apparent on the face of the seniority provision), when the seniority system is adopted, when an individual becomes subject to
the seniority system, or when a person aggrieved is injured by the application of the seniority system or provision of the system.
(3)(A) For purposes of this section, an unlawful employment practice occurs, with respect to discrimination in compensation
in violation of this subchapter, when a discriminatory compensation decision or other practice is adopted, when an individual
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
§ 2000e-5. Enforcement provisions, 42 USCA § 2000e-5
becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application
of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid,
resulting in whole or in part from such a decision or other practice.
(B) In addition to any relief authorized by section 1981a of this title, liability may accrue and an aggrieved person may obtain
relief as provided in subsection (g)(1), including recovery of back pay for up to two years preceding the filing of the charge,
where the unlawful employment practices that have occurred during the charge filing period are similar or related to unlawful
employment practices with regard to discrimination in compensation that occurred outside the time for filing a charge.
(f) Civil action by Commission, Attorney General, or person aggrieved; preconditions; procedure; appointment of attorney;
payment of fees, costs, or security; intervention; stay of Federal proceedings; action for appropriate temporary or preliminary
relief pending final disposition of charge; jurisdiction and venue of United States courts; designation of judge to hear and
determine case; assignment of case for hearing; expedition of case; appointment of master
(1) If within thirty days after a charge is filed with the Commission or within thirty days after expiration of any period
of reference under subsection (c) or (d) of this section, the Commission has been unable to secure from the respondent a
conciliation agreement acceptable to the Commission, the Commission may bring a civil action against any respondent not
a government, governmental agency, or political subdivision named in the charge. In the case of a respondent which is a
government, governmental agency, or political subdivision, if the Commission has been unable to secure from the respondent
a conciliation agreement acceptable to the Commission, the Commission shall take no further action and shall refer the case
to the Attorney General who may bring a civil action against such respondent in the appropriate United States district court.
The person or persons aggrieved shall have the right to intervene in a civil action brought by the Commission or the Attorney
General in a case involving a government, governmental agency, or political subdivision. If a charge filed with the Commission
pursuant to subsection (b) of this section is dismissed by the Commission, or if within one hundred and eighty days from the
filing of such charge or the expiration of any period of reference under subsection (c) or (d) of this section, whichever is later,
the Commission has not filed a civil action under this section or the Attorney General has not filed a civil action in a case
involving a government, governmental agency, or political subdivision, or the Commission has not entered into a conciliation
agreement to which the person aggrieved is a party, the Commission, or the Attorney General in a case involving a government,
governmental agency, or political subdivision, shall so notify the person aggrieved and within ninety days after the giving of
such notice a civil action may be brought against the respondent named in the charge (A) by the person claiming to be aggrieved
or (B) if such charge was filed by a member of the Commission, by any person whom the charge alleges was aggrieved by the
alleged unlawful employment practice. Upon application by the complainant and in such circumstances as the court may deem
just, the court may appoint an attorney for such complainant and may authorize the commencement of the action without the
payment of fees, costs, or security. Upon timely application, the court may, in its discretion, permit the Commission, or the
Attorney General in a case involving a government, governmental agency, or political subdivision, to intervene in such civil
action upon certification that the case is of general public importance. Upon request, the court may, in its discretion, stay further
proceedings for not more than sixty days pending the termination of State or local proceedings described in subsection (c) or
(d) of this section or further efforts of the Commission to obtain voluntary compliance.
(2) Whenever a charge is filed with the Commission and the Commission concludes on the basis of a preliminary investigation
that prompt judicial action is necessary to carry out the purposes of this Act, the Commission, or the Attorney General in a
case involving a government, governmental agency, or political subdivision, may bring an action for appropriate temporary or
preliminary relief pending final disposition of such charge. Any temporary restraining order or other order granting preliminary
or temporary relief shall be issued in accordance with rule 65 of the Federal Rules of Civil Procedure. It shall be the duty of
a court having jurisdiction over proceedings under this section to assign cases for hearing at the earliest practicable date and
to cause such cases to be in every way expedited.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3
§ 2000e-5. Enforcement provisions, 42 USCA § 2000e-5
(3) Each United States district court and each United States court of a place subject to the jurisdiction of the United States shall
have jurisdiction of actions brought under this subchapter. Such an action may be brought in any judicial district in the State in
which the unlawful employment practice is alleged to have been committed, in the judicial district in which the employment
records relevant to such practice are maintained and administered, or in the judicial district in which the aggrieved person would
have worked but for the alleged unlawful employment practice, but if the respondent is not found within any such district, such
an action may be brought within the judicial district in which the respondent has his principal office. For purposes of sections
1404 and 1406 of Title 28, the judicial district in which the respondent has his principal office shall in all cases be considered
a district in which the action might have been brought.
(4) It shall be the duty of the chief judge of the district (or in his absence, the acting chief judge) in which the case is pending
immediately to designate a judge in such district to hear and determine the case. In the event that no judge in the district is
available to hear and determine the case, the chief judge of the district, or the acting chief judge, as the case may be, shall certify
this fact to the chief judge of the circuit (or in his absence, the acting chief judge) who shall then designate a district or circuit
judge of the circuit to hear and determine the case.
(5) It shall be the duty of the judge designated pursuant to this subsection to assign the case for hearing at the earliest practicable
date and to cause the case to be in every way expedited. If such judge has not scheduled the case for trial within one hundred
and twenty days after issue has been joined, that judge may appoint a master pursuant to rule 53 of the Federal Rules of Civil
Procedure.
(g) Injunctions; appropriate affirmative action; equitable relief; accrual of back pay; reduction of back pay; limitations on
judicial orders
(1) If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment
practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice,
and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of
employees, with or without back pay (payable by the employer, employment agency, or labor organization, as the case may
be, responsible for the unlawful employment practice), or any other equitable relief as the court deems appropriate. Back pay
liability shall not accrue from a date more than two years prior to the filing of a charge with the Commission. Interim earnings
or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back
pay otherwise allowable.
(2)(A) No order of the court shall require the admission or reinstatement of an individual as a member of a union, or the hiring,
reinstatement, or promotion of an individual as an employee, or the payment to him of any back pay, if such individual was
refused admission, suspended, or expelled, or was refused employment or advancement or was suspended or discharged for any
reason other than discrimination on account of race, color, religion, sex, or national origin or in violation of section 2000e-3(a)
of this title.
(B) On a claim in which an individual proves a violation under section 2000e-2(m) of this title and a respondent demonstrates
that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court--
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4
§ 2000e-5. Enforcement provisions, 42 USCA § 2000e-5
(i) may grant declaratory relief, injunctive relief (except as provided in clause (ii)), and attorney's fees and costs demonstrated
to be directly attributable only to the pursuit of a claim under section 2000e-2(m) of this title; and
(ii) shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment,
described in subparagraph (A).
(h) Provisions of chapter 6 of Title 29 not applicable to civil actions for prevention of unlawful practices
The provisions of chapter 6 of Title 29 shall not apply with respect to civil actions brought under this section.
(i) Proceedings by Commission to compel compliance with judicial orders
In any case in which an employer, employment agency, or labor organization fails to comply with an order of a court issued in
a civil action brought under this section, the Commission may commence proceedings to compel compliance with such order.
(j) Appeals
Any civil action brought under this section and any proceedings brought under subsection (i) of this section shall be subject to
appeal as provided in sections 1291 and 1292, Title 28.
(k) Attorney's fee; liability of Commission and United States for costs
In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party, other than the
Commission or the United States, a reasonable attorney's fee (including expert fees) as part of the costs, and the Commission
and the United States shall be liable for costs the same as a private person.
CREDIT(S)
(Pub.L. 88-352, Title VII, § 706, July 2, 1964, 78 Stat. 259; Pub.L. 92-261, § 4, Mar. 24, 1972, 86 Stat. 104; Pub.L. 102-166,
Title I, §§ 107(b), 112, 113(b), Nov. 21, 1991, 105 Stat. 1075, 1078, 1079; Pub.L. 111-2, § 3, Jan. 29, 2009, 123 Stat. 5.)
Notes of Decisions (2308)
Footnotes
1 So in original. Probably should be subsection “(b)”.
42 U.S.C.A. § 2000e-5, 42 USCA § 2000e-5
Current through P.L. 113-296 approved 12-19-2014
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5