Bay Area Healthcare Group, Ltd., D/B/A Columbia Bayview Psychiatric Center v. Rayburn, William H. ( 2000 )

NUMBER 13-99-275-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

BAY AREA HEALTHCARE GROUP, LTD.,

D/B/A COLUMBIA BAYVIEW PSYCHIATRIC CENTER

, Appellant,

v.

WILLIAM H. RAYBURN

, Appellee.

___________________________________________________________________

On appeal from the 214th District Court of Nueces County, Texas.

___________________________________________________________________

OPINION ON MOTION FOR REHEARING

Before Chief Justice Seerden and Justices Dorsey and Yañez

Opinion by Chief Justice Seerden

We grant in part Bay Area Healthcare Group Ltd.'s motion for rehearing insofar as it pertains to the issue of back pay. We withdraw our opinion of August 31, 2000, and substitute this opinion in its place. In all other respects, Bay Area's motion for rehearing is denied.

Introduction

The trial court entered judgment on William Rayburn's jury verdict against his former employer, Bay Area Healthcare Group, Ltd., d/b/a Columbia Bayview Psychiatric Center ("Bay Area") for age discrimination under the Texas Commission on Human Rights Act. See Tex. Lab. Code Ann. §§21.001 et. seq. (Vernon 1996 & Supp. 2000). The jury awarded Rayburn $83,000 in back pay, $25,000 in compensatory damages, $50,000 in exemplary damages, and attorney's fees. Bay Area appeals this judgment by four issues. We affirm the judgment as modified.

Background

William H. Rayburn began employment with Bay Area in October of 1994 as director of maintenance at Bayview Psychiatric Center. Rayburn was hired by Irma Underwood, who was Bay Area's chief of support services. At the time, Rayburn was 58 years old; he turned 59 the following month. Rayburn was thus a member of a protected age group. See Tex. Lab. Code Ann. §21.101 (Vernon 1996)(TCHRA's age discrimination provisions apply to individuals forty years of age or older).

Bayview is a hospital for psychiatric or chemically dependent patients, including children, adolescents, and adults. As director of maintenance, Rayburn's duties included general managerial duties, supervising two maintenance employees, as well as performing "hands-on" maintenance work. He further oversaw grounds, pool, and fence maintenance for the hospital. Part of Rayburn's job was to prepare the hospital for inspection by the Joint Commission on Accreditation of Health Care Organizations, scheduled to take place in September of 1995.

Bay Area terminated Rayburn immediately following the inspection in September of 1995, citing poor performance, misrepresentation of facts, and safety concerns. Rayburn offered evidence to dispute these proffered reasons for his termination. Rayburn also testified that Bay Area suggested, prior to his termination, that he was from the "old school," and that he quit because of his age.⁽¹⁾ Moreover, Bay Area has never contended that Rayburn was unqualified for the position by reason of a disability or other occurrence rendering him unfit for the position for which he was hired.

After Rayburn's termination, Bay Area did not hire anyone else with the job title "director of maintenance." At trial, Bay Area alleged that it divided Rayburn's responsibilities between J. C. Hughes, who assumed Rayburn's managerial duties, and Robert Martinez, a maintenance technician, who assumed Rayburn's manual duties.

Martinez, 38 years of age, testified that he took over Rayburn's day-to-day responsibilities, occasionally calling Rayburn for advice about the job. Martinez had worked at Bayview in 1994 and 1995 as a maintenance technician under Rayburn's supervision. Martinez denied taking over Rayburn's specific position, but admitted that he was made a supervisor with a dollar an hour raise, supervising the other maintenance technician that remained, Rey Rivera. According to Martinez, Bay Area told him "You're gonna supervise Rey and you're gonna supervise the hospital, whatever they need." Martinez testified that J. C. Hughes did not provide direct or "on-hand" supervision at Bayview after Rayburn's departure.

Rey Rivera, the other maintenance technician at Bayview, testified that Martinez told him that he was put in charge of Bayview, and that Martinez was taking over as his new boss. According to Rivera, Martinez took over the majority of Rayburn's job responsibilities at Bayview. Rivera testified that Hughes visited Bayview only once or twice a month after Rayburn was terminated.

J. C. Hughes testified that he did all the administrative work for the maintenance department after Rayburn left. He testified that he spoke to Martinez every day, and gave Martinez daily job assignments. Hughes said that he tried to visit Bayview daily until November, then twice a week thereafter.

Rayburn brought suit against Bay Area for age discrimination and defamation. After a four-day trial, the jury found Bay Area did not defame Rayburn, but did find that age was a motivating factor in Bay Area's decision to terminate Rayburn, and awarded damages and attorney's fees. The trial court entered judgment on the verdict, but refused to grant Rayburn additional equitable relief in the form of reinstatement or front pay. By four issues, Bay Area attacks the legal and factual sufficiency of both liability and damage issues

Standards of Review

In considering no evidence or legal sufficiency points of error, we consider only the evidence and inferences from the evidence favorable to the decision of the trier of fact, and disregard all evidence and inferences to the contrary. See State Farm Fire & Cas. Co. v. Simmons, 963 S.W.2d 42, 44 (Tex. 1998); Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995). If more than a scintilla of evidence supports the challenged finding, the no evidence challenge must fail. See General Motors Corp. v. Sanchez, 997 S.W.2d 584, 588 (Tex. 1999); Mayberry v. Texas Dep't of Agric., 948 S.W.2d 312, 316 (Tex.App.--Austin 1997, pet. denied).

In considering a factual sufficiency point, we may not substitute our judgment for that of the trier of fact, but must assess all the evidence and reverse for a new trial only if the challenged finding shocks the conscience, clearly shows bias, or is so against the great weight and preponderance of the evidence as to be manifestly unjust. See Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex. 1998); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

I. Age Discrimination

In its first issue, Bay Area argues that the evidence is not legally or factually sufficient to support the jury's finding that Rayburn's age was a motivating factor in Bay Area's decision to discharge him. Bay Area further disputes the jury's implied finding that Bay Area's articulated reasons for Rayburn's discharge were a pretext for discrimination.

Rayburn brought this action under the Texas Commission on Human Rights Act ("TCHRA"). See Tex. Lab. Code Ann. §21.001 et. seq. (Vernon 1996 & Supp. 2000). The TCHRA was drafted to correlate with federal law; thus, Texas courts look to analogous federal court decisions interpreting parallel provisions of Title VII of the Civil Rights Act of 1964. Tex. Lab. Code Ann. §21.001 (Vernon 1996); see NME Hosps., Inc. v. Rennels, 994 S.W.2d 142, 144 (Tex. 1999); Trico Technologies Corp. v. Rodriguez, 907 S.W.2d 650, 653 (Tex.App.--Corpus Christi 1995, no writ); Farrington v. Sysco Food Svs., Inc., 865 S.W.2d 247, 251 (Tex.App.--Houston [1^st Dist.] 1993, writ denied).

In discrimination cases, Texas courts apply the McDonnell Douglas or Burdine analysis established by the United States Supreme Court. See Reeves v. Sanderson Plumbing Prods., Inc., 120 S. Ct. 2097, 2106 (2000)(discussing McDonnell Douglas Corp. v. Green, 411 U.S. 729, 802-03 (1973) and Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981)); M. D. Anderson Hosp. v. Willrich, 28 S.W.3d 22, 24 (Tex. 2000)(per curiam); Texas Dept. of Human Servs. v. Hinds, 904 S.W.2d 629, 636 (Tex. 1995).

Under this burden-shifting analysis, the plaintiff has the initial burden of proving a prima facie case of discrimination by a preponderance of the evidence. Stanley Stores, Inc. v. Chavana, 909 S.W.2d 554, 559 (Tex.App.­Corpus Christi 1995, writ denied); Adams v. Valley Fed. Credit Union, 848 S.W.2d 182, 186 (Tex.App.­Corpus Christi 1992, writ denied). To make a prima facie case of discrimination: (1) the plaintiff must prove that he was discharged; (2) he was qualified for the position; (3) he was in the protected class at the time of his discharge, and (4) he was replaced by someone outside the protected class, or by someone younger, or otherwise show that he was discharged because of age. Stanley Stores, Inc., 909 S.W.2d at 559; Adams, 848 S.W.2d at 186-87. The "qualification" requirement concerns whether the plaintiff suffered a physical disability, loss of a necessary license, or some other occurrence rendering him unfit for the position for which he was hired. Stanley Stores, 909 S.W.2d at 559; Adams, 848 S.W.2d at 188. When age discrimination is being shown circumstantially through the comparison of a plaintiff's age by comparing his treatment with that of a younger individual, the difference in age between the two must be significant. Hartis v. Mason & Hanger Corp., 7 S.W.3d 700, 705 (Tex.App.--Amarillo 1999, no pet.).

If the plaintiff succeeds in proving a prima facie case, the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the employee's discharge. Stanley Stores, 909 S.W.2d at 560; Adams, 848 S.W.2d at 187-88. If the defendant carries this burden, the plaintiff must then prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were rather a pretext for discrimination. Stanley Stores, 909 S.W.2d at 560; Adams, 848 S.W.2d at 187-88. Despite the shifting burden of proof, the plaintiff at all times retains the ultimate burden of persuading the trier of fact. Stanley Stores, 909 S.W.2d at 560; Adams, 848 S.W.2d at 187-88.

When, as here, a case has been fully tried on its merits, we do not focus on the burden shifting scheme described above. See, e.g., Rubenstein, 218 F.3d at 402. Once the case has been submitted to the jury, the adequacy of a party's showing at any particular stage of the McDonnell Douglas analysis is unimportant. Travis v. Board of Regents of Univ. of Texas, 122 F.3d 259, 263 (5^th Cir. 1997), cert. denied, 118 S. Ct. 1166 (1998). Instead, we inquire whether the record contains legally and factually sufficient evidence to support the jury's ultimate findings. Rutherford v. Harris County, Texas, 197 F.3d 173, 180-81 (5^th Cir.1999); Smith v. Berry Co., 165 F.3d 390, 394 (5^th Cir. 1999). Rayburn most show that Bay Area's purported reasons for terminating him are pretextual and that Bay Area engaged in illegal discrimination by legally and factually sufficient evidence. See Rutherford, 197 F.3d at 180-81; Travis, 112 F.3d at 263.

The record shows that Rayburn was well qualified for his position at Bayview. A former military man, Rayburn had previously worked for Driscoll Children's Foundation Hospital and Memorial Medical Center. At Driscoll, Rayburn served as director of preventive maintenance, and corrected deficiencies identified by the Joint Commission, thus enabling Driscoll to attain accreditation. Between Driscoll and Memorial, Rayburn had served as a director of maintenance through four separate inspections by the Joint Commission.

Irma Underwood, who originally hired Rayburn and served as his supervisor until May of 1995 when she resigned, testified that Rayburn always did his job "exceptionally well," and that he was always honest and straightforward. Underwood said that if something needed to be done, Rayburn reported what needed to be done, and usually, had a method for resolving the problem. Underwood testified that Rayburn was constantly working. Underwood's evaluation of Rayburn was exemplary.

In contrast, Bay Area contended that Rayburn's job performance was unsatisfactory. At trial and on appeal, Bay Area provided several different reasons why Rayburn's performance was unacceptable. According to a typewritten document entitled "Disciplinary Counseling . . . Unsatisfactory Job Performance Violation of Safety Requirements," Rayburn was terminated because he "was aware that unauthorized shower heads were being purchased and placed in patient care areas," and "he was aware of the safety hazard this type of shower presents" to psychiatric patients who are determined to inflict bodily harm to themselves. Janie Harwood, chief executive officer of Bay Area, testified that she decided to terminate Harwood because of his poor performance and because he misrepresented facts pertaining to the hospital's physical plant. In her testimony, Harwood also references the "Statement of Conditions" as a separate rationale for terminating Rayburn, however, she does not make a specific complaint regarding that document and Rayburn's performance.

In our analysis, the evidence must reflect that Rayburn showed that these reasons were a pretext for intentional age discrimination. We will address each of these issues in turn.

As noted above, Bay Area contended that Rayburn knew that inappropriate shower heads were being purchased and placed in patient care areas, causing a safety hazard to patients. Under the Joint Commission standards, the hospital was required to have "safety" or flush mount shower heads, or breakaway shower heads, in order to prevent suicidal patients from utilizing the shower heads to hang themselves. Bay Area contended that the evidence showed that: Rayburn refused to replace existing non-compliant showerheads because Bay Area had turned down Rayburn's proposal to expansively remodel the bathrooms; an investigation conducted by Harwood showed that Rayburn continued to order non-compliant showerheads despite knowing of the danger to patients; Rayburn failed to inform the administration of the need for safety shower heads; Rayburn represented that the hospital had safety shower heads, and if not, he would replace them; and that the hospital did not have compliant shower heads at the time of inspection.

In contrast, Irma Underwood, Rayburn's former supervisor, testified that she had previously informed Bay Area of the hazards represented by the shower heads when she submitted Rayburn's proposal to remodel the hospital's bathrooms. She said that Rayburn had replaced the shower heads in the adolescent unit, and that Bay Area had refused to allow her to replace the shower heads in the adult unit. Nevertheless, Underwood testified that she and Rayburn had managed to replace some of the remaining non-compliant shower heads. Underwood further testified that Rayburn did not have the authority to order shower heads; all purchases had to go through administration, except for routine nuts and bolts, and that it was a problem ordering equipment, including safety equipment.

In contrast to Harwood's contention that Rayburn continued to order non-compliant showerheads, Hughes testified that he found compliant shower heads in the hospital's supply room after Rayburn was terminated.

The jury is the sole judge of the credibility of the witnesses, and could have believed Underwood's testimony regarding the shower heads, rather than the testimony of the witnesses for Bay Area. Silcott v. Oglesby, 721 S.W.2d 290, 293 (Tex. 1986); Gorges Foodservice, Inc. v. Huerta, 964 S.W.2d 656, 666 (Tex.App.--Corpus Christi 1997, no writ).

Moreover, the jury may have determined that the issue of the shower heads was of little importance. The Joint Commission gave Bayview a Type II recommendation for failing to have safety shower heads, rather than a more serious Type I recommendation. Rayburn testified that the Joint Commission did not require the replacement of the shower heads because the hospital was moving its physical location. Further, the evidence showed that, after "discovering" the non-compliant showerheads and terminating Rayburn, Bay Area replaced the shower heads in stages rather than totally and immediately. The jury may simply have inferred that Bay Area itself did not consider the issue of great importance, and that this matter was a mere pretext for terminating Rayburn.

In 1995, the Joint Commission required that hospitals submit a "Statement of Conditions," which is a detailed physical description of the hospital, as part of the inspection and accreditation process. Bay Area argued that Rayburn's draft "Statement of Conditions" was inaccurate and misrepresented the physical condition of the hospital, and that Rayburn failed to inform Hughes that the hospital was not built according to blueprints.

In January of 1995, Rayburn completed a draft "Statement of Conditions" by reviewing the hospital blueprints and indicating his answers in pencil. However, the blueprints had not been followed when the hospital was built, therefore, Rayburn's draft Statement was inaccurate because it was based on the blueprints rather than an actual physical inspection of the plant. Rayburn signed the draft, and stored it in his office, thereafter making periodic modifications to the draft.

In August of 1995, Hughes told Rayburn that he was going to hire an independent contractor, W. L. Dick & Associates, to perform a detailed physical inspection of the plant and complete the Statement of Conditions. According to Hughes, Rayburn told him he had prepared a draft Statement and gave the draft to him; according to Rayburn, the draft disappeared from his office sometime prior to the inspection. By this time, Rayburn was aware that the blueprints did not reflect the hospital as built, but he did not so inform Hughes. Harwood was concerned the Rayburn's draft misrepresented the hospital's physical condition.

The jury was free to determine that Rayburn's document was in fact a draft and a work-in-progress, and that Rayburn should not be held responsible for the draft as though it were a completed product. Further, the jury may have considered that Hughes was Rayburn's supervisor and had some responsibility for inspecting the premises and identifying discrepancies between the blueprints and the physical plant. Finally, the jury may have determined that Rayburn did not have the responsibility to complete the Statement of Conditions given that Bay Area had specifically retained W. L. Dick to complete the Statement before Bay Area realized that Rayburn had been working on a draft. The jury may have thus inferred that the problems regarding Rayburn's draft Statement of Conditions were a mere pretext for his termination.

Bay Area points to several other issues to support its defense that Rayburn's performance was inadequate. Bay Area argued that Rayburn failed to seal penetrations despite repeated instruction to do so, yet told Bay Area that he had sealed the penetrations. In order to meet the standards set by the Joint Commission, any holes or penetrations in the hospital's walls would have to be intact or sealed to prevent the migration of smoke or fire throughout the hospital. Bay Area further argues that the draft Statement showed that penetrations had been sealed.

The evidence adduced at trial showed that, after the inspection by W. L. Dick & Associates, Rayburn and the maintenance technicians sealed some or all of the penetrations prior to the inspection by the Joint Commission. Rayburn testified without contradiction that the Joint Inspection did not require remedying such physical deficiencies because the hospital would be moving to a separate physical location. Moreover, Rayburn argued at trial that an "informal" reprimand that he had received regarding the penetrations was fraudulently created after Rayburn's termination. We further note that Rayburn worked long hours during the weeks before the inspection, and the jury may have simply determined that Rayburn did everything within his power to remedy the hospital's deficiencies within the allotted time frame, and that this rationale for terminating Rayburn was a mere pretext.

Bay Area further also argued that Rayburn's job performance was inadequate because he failed to report two fire alarms and an electrical outage at the hospital at the time that they occurred. Evidence showed that the fire alarm went off twice during the month of August, although no fire was involved in either instance, and that the hospital lost electrical power on one occasion for approximately fifty minutes during the latter part of that month. Rayburn did not tell Hughes, the safety officer, about these instances until the safety committee meeting on August 31, 1995.

Rayburn testified that he had not been given instructions to report such events at the time of occurrence, and that he did not have Hughes's home or mobile telephone numbers. Rayburn further testified that it was customary to report such instances at safety meetings. Accordingly, the jury may have inferred that this reason for terminating Rayburn was a mere pretext.

The evidence at trial showed that Bay Area failed to follow its own disciplinary procedures in reprimanding Rayburn and terminating him. Hughes and Tom Harrison, the human resources director, gave Rayburn an "informal" reprimand on September 5, 1995. Although Hughes created a typewritten document pertaining to the informal reprimand, Hughes failed to utilize a form required by Bay Area for disciplinary counseling, and further failed to procure Rayburn's signature on the counseling form as required by Bay Area.

At the counseling session, Rayburn requested that Bay Area furnish him its complaints in writing, yet Hughes and Harrison refused to give him a copy of the reprimand. In fact, Hughes indicated that they would not put a written reprimand in Rayburn's file.

Harrison agreed that proper documentation was very important in the field of nursing, and that written documents are generally initialed, signed, or dated. Harrison conceded that Rayburn's written reprimand was unsigned and undated. Harrison testified that most of the Bay Area managers used a specific disciplinary form with fill-in blanks, but Hughes generally created his own typed reprimand because he felt that the Bay Area form did not provide sufficient space for his comments.

Harrison conceded that they failed to follow the procedures specified in Bay Area's disciplinary notice form by failing to ask Rayburn to review his reprimand, confirm his understanding of it, and sign it, acknowledging notification of the problem. Harrison was "really not sure why it wasn't done, at that point." Harrison admitted that it was particularly important to obtain the employee's signature so that there would be a record of the disciplinary action. Harrison also admitted that he was in charge of the meeting "to make sure that, if we do disciplinary action it's done properly, and that it's given the 'both sides of the story' type thing."

Harrison acknowledged that both the informal reprimand and Rayburn's termination memo lacked the ordinary indicia of memoranda, such as a date, information indicating who it was addressed to and from, and a signature. Harrison said that following the typical memorandum format would have been a better practice, but that Hughes had a habit of failing to do so. In response, Rayburn showed the jury several memoranda from Hughes that were in a typical memorandum format.

Rayburn testified that he was fired because of his age, and that the reason Bay Area gave for his termination was false.

While we agree with Bay Area that there was some evidence that it had a legitimate, non-discriminatory motive for terminating Rayburn, the jury was the sole evaluator of the witnesses' credibility and entitled to resolve conflicts in the testimony as it saw fit. Silcott, 721 S.W.2d at 293; Gorges Foodservice, Inc., 964 S.W.2d at 666. The jury's verdict was supported by more than a scintilla of evidence, and was not so against the great weight and preponderance of the evidence as to be manifestly unjust. Maritime Overseas Corp., 971 S.W.2d at 406-07. We conclude that Rayburn presented legally and factually sufficient evidence to support the jury's finding that Rayburn's age was a motivating factor in Bay Area's decision to discharge him. Bay Area's first issue is overruled.

II. Back Pay Damages

In its second issue, Bay Area argues that the jury's finding of $83,000 in back pay damages is not supported by the evidence. First, Bay Area contends that the evidence is not factually sufficient to support the back pay award because the jury failed to offset the back pay by Rayburn's unemployment compensation and interim earnings. Second, Bay Area argues that the evidence is not legally or factually sufficient to support an award of back pay after December of 1995 because Rayburn's employment would have been terminated when Bayview's campus was closed and the facility relocated. Finally, Bay Area contends that the evidence conclusively establishes, as a matter of law, that Rayburn failed to mitigate his damages after November of 1997 by failing to seek employment after that date.

The trial court has discretion to award back pay as equitable relief in an age discrimination lawsuit. Tex. Lab. Code Ann. §21.258(b)(1) (Vernon 1996). However, in awarding back pay, the court must deduct interim earnings, workers' compensation benefits, and unemployment compensation benefits. Tex. Lab. Code Ann. §21.258(c)(Vernon 1996); Stanley Stores, Inc., 909 S.W.2d at 563.

The jury awarded Rayburn $83,000 in back pay. The jury was instructed that "back pay" is that amount of wages and employment benefits that Rayburn would have earned if he had not been terminated, less any wages, unemployment compensation benefits or workers' compensation benefits he received in the interim. The jury was further instructed to deduct from back pay "the amount of money, if any, that you find William Rayburn could have earned by exercising reasonable diligence in seeking other employment."

A. Offset

Bay Area contends that the jury failed to offset the finding for back pay with Rayburn's interim earnings and unemployment compensation benefits. Bay Area argues that Rayburn's annual salary was $30,000, that he had been terminated three years and one and a half months by the time trial was completed, and that undisputed evidence established interim earnings and unemployment compensation benefits of $23,824.65. Bay Area thus contends that Rayburn was entitled to only $69,925.35 in back pay ($30,000 annually for three years and one and one half months, or $93,750, less $23,824.65).

The right to an offset is an affirmative defense, and the burden of pleading and proving the facts necessary to support an offset is on the party making the assertion. See Brown v. American Transfer & Storage Co., 601 S.W.2d 931, 936 (Tex. 1980), cert. denied, 449 U.S. 1015 (1980). However, as noted previously, in awarding back pay, the court must deduct interim earnings, workers' compensation benefits, and unemployment compensation benefits. Tex. Lab. Code Ann. §21.258(c)(Vernon 1996) (emphasis added); Stanley Stores, Inc., 909 S.W.2d at 563.

Rayburn testified that he made "approximately" $30,000 annually. Rayburn further testified that he worked a substantial amount of overtime, particularly with regard to preparing Bayview for inspection. The record reflects that Rayburn was a salaried employee, but does not reflect whether or not Rayburn received overtime pay or other benefits as a result of overtime work.

Rayburn received a raise from $14.00 per hour to $14.42 per hour during his first year of employment with Bay Area. A jury may rationally conclude that, but for an employer's discrimination, the discharged employee would have received additional raises during the interim before trial. See Mayberry v. Texas Dept. of Agriculture, 948 S.W.2d 312, 317 (Tex.App.--Austin 1997, writ denied). However, the record in the instant case fails to include documentation or testimony establishing whether or not Bay Area gave employees raises during subsequent years, the criteria for any such raises, and the amount of any raises.

The jury has the discretion to award damages within the range of evidence presented at trial, so long as a rational basis exists for its calculation. Id. There is a discrepancy of approximately $13,000 between the jury's award and the figure Bay Area has calculated for back pay. Rayburn argues that this discrepancy is not so great that it cannot be reconciled by allowing for overtime pay or occasional raises during the thirty-seven month period of lost employment. However, the evidence pertaining to Rayburn's alleged overtime or potential raises is so weak that it does no more than create a mere surmise or suspicion about such damages. See Kindred v. Con-Chem., Inc., 640 S.W.2d 61, 63 (Tex. 1983). Therefore, the evidence is no more than a scintilla and cannot survive a legal sufficiency challenge. We conclude that the evidence was sufficient to establish that Rayburn was entitled to $30,000 annually for three years and one and one half months, or $93,750, less $23,824.65 for interim earnings and compensation benefits, or $69,925.35 in back pay. See Tex. Lab. Code Ann. §21.258(c)(Vernon 1996); Stanley Stores, Inc., 909 S.W.2d at 563. We sustain this issue, and modify the judgment to reflect a back pay award of $69,925.35.

B. Termination of Employment

Bay Area argues that the evidence is not sufficient to support an award of back pay after December of 1995 because Rayburn's employment would have been terminated when Bayview was relocated in December of 1995 to the campus of South Texas Rehab Hospital. Rayburn testified that:

So it was a good economic move. So everybody was supposed to gear up to move over to South Texas Rehab Hospital. But Mrs. Harwood made it very obvious that the services of Bayview Hospital, the service departments, which would be Maintenance, Housekeeping and Dietary would be the hardest hit and, probably, would not be moving to the new facility. They would make every opportunity they could to give us resumes, talk to other hospitals and see if they could find other places for us to work.

Rayburn and Hughes had both been told that JoAnn Baker, CEO of South Texas Rehab, would make the decision on who would stay employed and who would be terminated. Rayburn discussed this issue with Hughes:

And Mr. Hughes and I talked and he said, well, if he was as close to retirement as I was, he would just go ahead and retire. But since he wasn't as old as I was, that he needed to work another five or six years. Kind of leave me under the impression, what's he want me to do, quit?

Rayburn testified that these remarks caused him concern because it was "obvious that one of us was not gonna have a job." Rayburn testified that he had applied for the position of chief support of general services at South Texas Rehab. The evidence at trial showed that at least one member of the maintenance department, Martinez, who had less experience and fewer qualifications than Rayburn, survived the merger of the two physical plants.

We find that the foregoing evidence is insufficient to establish that Rayburn would have been terminated in December of 1995. We overrule appellant's second issue.

C. Failure to Mitigate

A wrongfully discharged employee has a duty to mitigate damages by making a good faith effort to obtain and retain employment. Ford Motor Co. v. Equal Employment Opportunity Comm'n, 458 U.S. 219, 231-34 (1982); Gulf Consol. Int'l Inc. v. Murphy, 658 S.W.2d 565, 566 (Tex. 1983)(opinion on rehearing); Gorges Foodservice, Inc., 964 S.W.2d at 669. Mitigation is a defensive issue upon which Bay Area bore the burden of proof at trial. Texas Animal Health Comm'n v. Garza, 27 S.W.3d 54, 62 (Tex.App.--San Antonio 2000, no pet.); Gorges, 964 S.W.2d at 669. Mitigation of damages is ordinarily a question of fact for the jury. See Hygeia Dairy Co. v. Gonzalez, 994 S.W.2d 220, 224 (Tex.App.--San Antonio 1999, no pet.). The adequacy of an employee's efforts to mitigate and the reasonableness of an employee's explanation for rejecting a job offer are fact questions properly left to the jury. Texas Animal Health Comm'n, 27 S.W.3d at 62; Gorges, 964 S.W.2d at 669; Pacesetter Corp. v. Barrickman, 885 S.W.2d 256, 263 (Tex.App.--Tyler 1994, no writ).

The jury was instructed to subtract wages, unemployment compensation benefits, or workers compensation benefits, and was further instructed to "deduct from back pay the amount of money, if any, that you find William Rayburn could have earned by exercising reasonable diligence in seeking other employment."

After losing his job, Rayburn applied for positions through the unemployment workforce commission and through a veteran's program. He held several different jobs, working at the Naval Air Station--Corpus Christi, at Saratoga Medical Center, and for A-Plus Services. Rayburn was also the owner and proprietor of an antique store, and worked at that establishment continually, although it had lost money off and on over the twenty-nine years he had owned it. Rayburn testified that it is hard for an older individual to find a job.

At the time of trial, Rayburn had last held employment outside of his antique store on July 7, 1997. He had not completed a job application since November of 1997, at which time he was 62 years of age, but testified that he would have continued to investigate any job notifications that he received. We note that there was some evidence that Rayburn lost at least one job opportunity because Bay Area, as Rayburn's former employer, failed to provide requested documentation to Rayburn's prospective employer.

Bay Area contends that Rayburn's failure to complete a job application after November of 1997 conclusively establishes that Rayburn failed to mitigate his damages after that date. However, there was sufficient evidence before the jury from which the jury could infer that Rayburn used reasonable diligence to obtain another job even after this date. The jury heard testimony that it is hard for older people to find employment, and in November of 1997, Rayburn was 62 years of age. Moreover, Rayburn continued to work at his antique store after November 1997. The mere fact that the antique store apparently failed to show a profit after that date is not determinative regarding Rayburn's efforts to mitigate his damages. We overrule appellant's second issue.

III. Compensatory Damages

In its third issue, Bay Area argues that the jury's finding of $25,000 for compensatory damages is not supported by legally or factually sufficient evidence.

Plaintiffs may recover compensatory damages under the Texas Human Rights Act. Tex. Lab. Code Ann. §21.2585(a)(1) (Vernon 1996 & Supp. 2000).⁽²⁾ "Compensatory damages" include "future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses," but may not include back pay, interest on back pay, or other equitable relief authorized under section 21.258(b) of TCHRA. See Tex. Lab. Code Ann. §21.2585(c),(d) (Vernon 1996).

The jury awarded Rayburn $25,000 as compensatory damages. The jury was instructed that compensatory damages include future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary damages. Bay Area argues that Rayburn's evidence fails to rise to the "high degree of mental pain and distress" required to support an award of mental anguish damages, and that there is no evidence to support the award of compensatory damages.

In Parkway Co. v. Woodruff, the Texas Supreme Court held that an award of damages for mental anguish requires evidence of a "high degree of mental pain and distress" that is "more than mere worry, anxiety, vexation, embarrassment, or anger." Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995); see also Stevens v. Nat'l Educ. Ctrs., Inc., 11 S.W.3d 185, 185 (Tex. 2000); Norwest Mtg., Inc. v. Salinas, 999 S.W.2d 846, 862 (Tex.App.--Corpus Christi 1999, pet. denied). An award of mental anguish damages can survive a legal sufficiency challenge when a plaintiff has introduced direct evidence of the nature, duration, and severity of his mental anguish. Parkway, 901 S.W.2d at 444. Such evidence can take the form of the claimant's own testimony. Id.

The jury charge in this matter instructed the jury that:

The term "MENTAL PAIN AND ANGUISH" 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 these. It includes a mental sensation of pain resulting from such painful emotions as grief, severe disappointment, indignation, wounded pride, shame, despair and/or public humiliation.

Rayburn's testimony fairly conveys the nature of his mental anguish. Specifically, Rayburn testified that he was "devastated" during the termination meeting, and that he had never been treated like that in his life. He was further devastated when Bay Area "paraded" him through all of the employees in escorting him from the premises after termination, and when Bay Area told security that if he "came back on the premises to call the police." Rayburn had to inform potential employers that the reason for his discharge was a "trumped up safety charge." He testified that he was worked up, "put back," and hurt.

Rayburn also testified about the duration of his mental anguish. Specifically, Rayburn testified that these feelings continued from the time of his termination through trial.

Finally, Rayburn testified about the severity of his mental anguish. He indicated that he had problems sleeping because he was thinking of the termination, and because he was concerned about its financial aspects. He was unable to share these feelings with his wife, who was terminally ill at the time.

We conclude that the foregoing evidence is legally sufficient to find that Rayburn suffered mental anguish, and that the jury's award is not unsupported by the evidence or against the great weight and preponderance of the evidence. Moreover, we note that the jury may or may not have awarded the full $25,000 for mental anguish, or may have awarded some amount for future pecuniary losses. It would be improper for us to speculate on how the jury divided its award among the various elements of damages. See Hernandez v. American Appliance Mfg. Corp., 827 S.W.2d 383, 389 (Tex.App.--Corpus Christi 1992, writ denied).

A challenge to a multi-element damages award should address all of the elements and show that the evidence is insufficient to support the damages award considering all of the elements. Price v. Short, 931 S.W.2d 677, 688 (Tex.App.­Dallas 1996, no writ); Greater Houston Transp. Co. v. Zrubeck, 850 S.W.2d 579, 589 (Tex.App.­Corpus Christi 1993, writ denied).

While Bay Area argues that there was no evidence of mental anguish, Bay Area does not address evidence pertaining to future pecuniary loss or other nonpecuniary damages. We therefore cannot further analyze Bay Area's challenge regarding Rayburn's compensatory damages because this would entail speculation about how the jury divided its award among the various elements comprising compensatory damages. See Thomas v. Oldham, 895 S.W.2d 352, 359-60 (Tex. 1995).

Appellant's third issue is overruled.

IV. Malice or Reckless Disregard

In its fourth issue, Bay Area argues that the jury's findings that it acted with malice or reckless disregard and that Rayburn was entitled to $50,000 in punitive damages are not supported by legally or factually sufficient evidence. Bay Area argues that it did not act with malice or reckless indifference, and further argues that the case should be remanded to the trial court for further proceedings and a new trial in light of Kolstad v. American Dental Ass'n, 527 U.S. 526 (1999).

The Texas Human Rights Act allows recovery of punitive damages when the evidence demonstrates that the defendant engaged in a discriminatory practice "with malice or with reckless indifference to the state-protected rights of an aggrieved individual." Tex. Lab. Code Ann. §21.2585(b) (Vernon 1996 & Supp. 2000).

A. Sufficiency of the Evidence

In this case, the jury found by clear and convincing evidence that Bay Area acted with malice or reckless indifference. Malice was defined as

a specific intent to cause substantial injury to Rayburn, or an act or omission which, when viewed objectively from the standpoint of defendants at the time of its occurrence, involved an extreme degree of risk, considering the probability and magnitude of the potential harm to others, and of which defendants had actual, subjective, awareness of the risk involved, but nevertheless proceeded with conscious indifference to the rights, safety, or welfare of others.

The jury was instructed that exemplary damages were an amount that could be awarded as a penalty or by way of punishment, and that factors to be considered in awarding exemplary damages, if any, were the nature of the wrong, the character of the conduct involved, the degree of culpability of the wrongdoer, the situation and sensibilities of the parties concerned, the extent to which such conduct offends a public sense of justice and propriety, and the net worth of Bay Area. The jury awarded Rayburn $50,000 in exemplary damages.

A court of appeals confronted with a challenge to the factual sufficiency of an exemplary damages award must detail the relevant evidence explaining why the evidence supports or does not support the award in light of the Kraus factors. Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 31 (Tex. 1994).

Sufficient evidence was presented to show that Bay Area's wrongful acts of discrimination against Rayburn were done with malice or reckless indifference. The jury heard evidence that Rayburn worked late most evenings during the weeks preceding the inspection by the Joint Commission, and worked until midnight for several consecutive nights to help Bay Area receive accreditation, yet Bay Area terminated Rayburn during the employees' celebration immediately after the hospital received accreditation. Although there was no evidence that Rayburn presented any threat to the hospital or its employees, the jury heard evidence that Hughes and Harrison escorted Rayburn to his office to pack his belongings, and then escorted him from the premises, instructing a security guard to call the police if Rayburn attempted to return. The jury heard evidence that Bay Area violated its own procedures by refusing to give Rayburn documentation about his "informal reprimand," yet demanded that he respond to the reprimand in writing. Evidence was adduced that Bay Area refused to allow Rayburn to respond to the charges against him. Rayburn introduced evidence that Bay Area failed to follow several other internal policies and procedures for Rayburn's disciplinary counseling and eventual termination. Further, there was some evidence from which the jury could have inferred that Bay Area fabricated documentation pertaining to Rayburn's discharge.

Finally, we note that the evidence adduced at trial was sufficient to support the jury's implicit finding that Bay Area's purported reasons for claiming Rayburn to be incompetent were disingenuous at best. For instance, the evidence established that Bay Area initially refused to pay for the installation of safety showerheads, yet ostensibly terminated Rayburn for his failure to install these showerheads. Further, despite Rayburn's termination on the alleged grounds that Rayburn endangered patients by failing to install compliant showerheads, Bay Area did not act with any great urgency in completing the installation of compliant showerheads.

This evidence is sufficient to allow the jury to assess the nature of the wrong, the character of the conduct, and the degree of culpability of the wrongdoer. See Alamo Nat'l Bank v. Kraus, 616 S.W.2d 908, 910 (Tex. 1981). This evidence was also sufficient to allow the jury to evaluate the situation and sensibilities of the parties concerned by establishing that Bay Area was a corporation with a substantial net worth and Rayburn was an individual nearing retirement age, who would have difficulties obtaining another job given the fact that he had ostensibly been discharged for endangering patients. See id. Based on all of this evidence, we are reluctant to substitute our sense of a "public sense of justice and propriety" for that of the jury. See id. However, we will say that the jury could have determined that the facts of this case were substantially offensive to a public sense of justice and propriety. Cf. id. We conclude that the exemplary damages award of $50,000 was supported by evidence, and was not so against the great weight and preponderance of the evidence as to be manifestly unjust, and was supported by more than a scintilla of evidence.

We hold that legally and factually sufficient evidence was presented to show that Bay Area's actions were done with malice or reckless indifference.

B. Change in Law

Bay Area argues that this case should be remanded to the trial court for further proceedings and a new trial in light of the recent United States Supreme Court decision in Kolstad v. American Dental Ass'n, 527 U.S. 526 (1999). In Kolstad, the court held that "an employer may not be vicariously liable for the discriminatory employment decisions of managerial agents where these decisions are contrary to the employer's 'good faith efforts to comply with Title VII.'" Kolstad, 119 S.Ct. at 2129. This good faith defense is designed to "avoid undermining the objectives underlying Title VII"; the statute's primary objective is a prophylactic one"--"not to provide redress but to avoid harm." Id. Because Kolstad was decided more than six months after the trial of this cause, Bay Area did not plead this affirmative defense, nor did it adduce evidence pertaining to this issue.

Supreme Court decisions apply retroactively and prospectively to all cases on direct appeal whenever applied to the litigants before the Court. Harper v. Virginia Dept. of Taxation, 509 U.S. 86, 97 (1993). Nevertheless, this Court disagrees that a new trial is warranted in light of Kolstad. See Wal-Mart Stores, Inc. v. Itz, 21 S.W.3d 456, 479 (Tex.App.--Austin 2000, pet. filed); Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 188 F.3d 278, 283-84 (5^th Cir. 1999); Kimbrough v. Loma Linda Dev., 183 F.3d 782 (8^th Cir. 1999). We do not find that Kolstad represented such a sudden shift in the law as to require a new trial in the interests of fairness. In this regard, we note that there was some authority similar to Kolstad prior to the trial of this matter, and that good faith is generally utilized as the natural converse to malice or reckless indifference in defending a claim for punitive damages. We further note that Bay Area introduced evidence at trial regarding its employment of other older employees.

In light of our holding, we do not find it necessary to reach the issue of whether this Court has the authority to remand the case to the trial court in light of a change in the applicable law during the pendency of the appeal. See Blair v. Fletcher, 849 S.W.2d 344, 345 (Tex. 1993)(per curiam); compare Tex. R. App. P. 60.2(f)(granting the supreme court the authority to vacate the lower court's judgment and remand the case for further proceedings in light of changes in the law) with Tex. R. App. P. 43.2, 43.3 (allowing remand when trial court's judgment is vacated, when necessary for further proceedings, or the interests of justice require).

We overrule Bay Area's fourth issue.

Front Pay

In his sole cross-point, Rayburn argues that the trial court abused its discretion by awarding Rayburn neither front pay or reinstatement. The TCHRA authorizes reinstatement, and Texas courts have previously found that an award of front pay is a legitimate exercise of the trial court's equity powers under the Act. Tex. Lab. Code Ann. §21.258 (Vernon 1996); see Wal-Mart Stores v. Davis, 979 S.W.2d 30, 44 (Tex.App.--Austin 1998, pet. denied); Stanley Stores, 909 S.W.2d at 561-62.

While some courts have held that an award of either front pay or reinstatement is necessary to make the claimant whole, other courts have analyzed the issue differently. Compare, e.g., United States EEOC v. W & O, Inc., 213 F.3d 600 (11^th Cir. 2000)(in addition to back pay, prevailing Title VII plaintiffs are presumptively entitled to either reinstatement or front pay); with Tennes v. Massachusetts, 944 F.2d 372, 381 (7^th Cir. 1991)(neither reinstatement nor front pay are mandatory relief for a prevailing plaintiff under the ADEA). The parties have not cited, and we have not found, any cases addressing this conflict under Texas law. Nevertheless, we need not address this issue.

Under the Texas Rules of Appellate Procedure, a party must perfect its own independent appeal as a prerequisite to seeking relief from the judgment. See Tex. R. App. P. 25.1(c). Rayburn failed to perfect appeal, and consequently this issue is consequently not properly before the Court.

Conclusion

We affirm the trial court's judgment as to compensatory damages, exemplary damages, and attorney's fees. We modify the trial court's judgment regarding back pay: Rayburn shall recover $69,925.35 for back pay. As modified, we affirm the judgment.

ROBERT J. SEERDEN, Chief Justice

Do not publish

.

Tex. R. App. P. 47.3.

Opinion on Motion for Rehearing delivered

and filed this 28th day of December, 2000.

1. Mere "stray remarks" are typically insufficient to show discrimination; however, these remarks provide some evidence of discriminatory intent because they were (1) related to the protected class of persons of which the plaintiff is a member; (2) proximate in time to the termination; (3) made by individuals with authority over the employment decision; and (4) related to the employment decision at issue. See Rubenstein v. Adminstrators of the Tulane Educ. Fund, 218 F.3d 392, 400-01 (5^th Cir. 2000).

2. This section of the TCHRA was amended in 1999; however, the 1999 amendments do not affect section 21.2585 as applied to the instant case. See Tex. Lab. Code Ann. §21.2585 and historical note (Vernon Supp. 2000)