Apache Corporation v. Cathryn C. Davis ( 2019 )

Affirmed in part and reversed in part and Opinion filed April 4, 2019.
In The
Fourteenth Court of Appeals
NO. 14-17-00306-CV
APACHE CORPORATION, Appellant
V.
CATHRYN C. DAVIS, Appellee
On Appeal from the 152nd District Court
Harris County, Texas
Trial Court Cause No. 2014-23898
OPINION
Appellant Apache Corporation appeals a judgment in favor of its former
paralegal, appellee Cathryn C. Davis, on her retaliation claim under Chapter 21 of
the Texas Labor Code. See Tex. Lab. Code § 21.055. A jury found that Davis
filed a complaint of age or gender discrimination with Apache and that Apache
discharged Davis because she filed the complaint. The jury also found that Davis
engaged in misconduct and that Apache would have legitimately discharged her
solely on that basis. The jury awarded Davis no back pay and no future
compensatory damages, but it did award $150,000 in past compensatory damages
for Davis’s emotional pain and suffering and other noneconomic losses related to
the retaliation claim. The parties tried Davis’s claim for attorneys’ fees to the
bench, and the trial court awarded Davis $767,242 in attorneys’ fees plus an
additional $100,000 in conditional appellate fees.
Apache challenges the trial court’s judgment in four issues, arguing there is
legally insufficient evidence that Davis engaged in protected activity, but-for
causation is lacking, the jury charge is erroneous based on Casteel error,1 and the
attorneys’ fees awarded by the trial court are unreasonable and unsupported by
sufficient evidence. After reviewing the record, we conclude legally sufficient
evidence supports the jury’s findings that Davis engaged in a protected activity and
that Apache retaliated against her for making a complaint. Given our disposition
of Apache’s first two issues, we conclude there was no Casteel error. We further
conclude regarding the attorneys’ fees that there is sufficient evidence to support
the award of fees with the exception of a portion of the fees awarded for Dennis
Herlong’s time. As to those fees, we suggest a remittitur as described below. We
affirm in part and reverse in part the trial court’s judgment.
BACKGROUND
Davis began working in Apache’s litigation department in March 2006. At
the time of her hire, Davis was 52 years old and had many years of experience as a
paralegal. Attorney Roxanne Armstrong supervised the department and hired
Davis for the position of Senior Paralegal.2 The department included two other
1
Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378 (Tex. 2000).
2
Apache hired Armstrong in 1991 to start and manage its litigation department. She
remained the head of the litigation department at Apache for approximately fifteen years.
2
female paralegals, Laurie Fielder and Courtney Eldridge, both of whom were
younger than Davis but had been at Apache several years longer. In 2007, Apache
replaced Armstrong with attorney Dominic Ricotta as head of the litigation
department. By all accounts, Davis performed her work well, as reflected in her
performance reviews, and the parties enjoyed a good working relationship for the
next several years.
I. Changes at Apache that led to Davis’s complaint of discrimination
Davis contends that this working relationship changed and Apache began
discriminating against her in July 2010. At that time, Ricotta promoted Eldridge to
Senior Paralegal (the same title as Davis) and gave Fielder, who was already a
Senior Paralegal, the additional title of E-Discovery Coordinator. Fielder had been
handling the e-discovery duties and Ricotta wanted to give her the title to reflect
the additional work that she had been doing, while also giving her a pay increase of
$5,100 to account for the additional work. The $5,100 pay increase was
determined by Human Resources based on a market comparison of what others in
the industry with similar responsibilities earned. After the promotion, Eldridge
continued to earn less money than Davis, but Fielder’s pay increase based on the e-
discovery responsibilities placed her base salary $4,400 per year higher than
Davis’s base salary.
Davis did not receive a promotion or additional responsibilities. Ricotta
stated that Davis, as a Senior Paralegal, already held the highest position available
for a paralegal at Apache. Apache considered Fielder’s position that encompassed
Senior Paralegal and E-Discovery Coordinator to be a hybrid position not
applicable to Davis.3
3
Davis did not have the same e-discovery experience and was not critical of Fielder’s
appointment to the role.
3
In October 2010, Ricotta announced at a litigation department meeting these
promotion and title changes for Eldridge and Fielder. Ricotta did not mention
Davis at the meeting. Davis stated she was embarrassed and surprised at the
announcement because Davis was Ricotta’s right-hand paralegal and had twice as
many years of paralegal experience as Eldridge and Fielder. In early November
2010, Davis attempted to raise the issue of a promotion with Ricotta. When Davis
referenced the promotions for Eldridge and Fielder, Ricotta quickly responded that
Fielder did not get a promotion, merely a title change, and seemed to be angry with
her for asking. A short time later Davis again tried to raise the issue with Ricotta
by asking what promotional opportunities were available for her at Apache. Davis
stated that Ricotta responded in a very mocking tone that the only way she would
get a promotion was to become a lawyer. Davis then brought up the special
research projects and help with reconciling outside legal fees that she had been
performing for Ricotta. According to Davis, Ricotta responded that he could get
an accountant to do that and he could cut her salary. Ricotta denied threatening
Davis regarding her salary.
Davis also spoke with Apache’s employment lawyer, David Bernal. She
believed she had been passed over in receiving a promotion because of her age and
told Bernal that she did not understand why she had been passed over when she
was older than the other paralegals and had twice as much experience.4 Davis
acknowledged that there was no position to which Apache could promote her but
felt Apache should give her an additional title, as it had for Fielder. Around the
same time she spoke with Bernal, Davis also sent an email to Ricotta asking that
Apache provide in-house continuing education programs for paralegals and
4
Davis also felt it unfair that she did not receive a promotion or new title when Eldridge
and Fielder did because Eldridge did not have a college degree and Fielder did not have a legal
assistant certificate, both of which Davis held.
4
consider additional titles for the most experienced paralegals “as an affirmation
that Apache is continually investing in and advancing its valuable and veteran
paralegals.” At trial, Davis stated she was thinking of three other “older”
paralegals with experience similar to hers that she felt should have additional titles:
Mary Heinitz, Regina Broughton-Smith, and Susie Zaccaria. Davis specifically
requested that Apache consider the title “Senior Paralegal and Legal Research
Specialist” for herself. Apache then gave her that title, but it did not come with an
increase in salary.
Davis testified that after the promotions for Eldridge and Fielder and
discussions with Ricotta regarding promotion opportunities for herself, her
working relationship with Ricotta continued to deteriorate. Things felt tense and
she was “walking on eggshells” around him, in contrast to their prior “great
working relationship.” By October 2011, Davis chose to apply for a paralegal
opening in the Apache Corporate Secretary’s office even though the position paid
less than Davis’s current position. A younger employee, Melissa Garcia, was
filling the position on an interim basis and had more corporate experience than
Davis. The Corporate Secretary (a woman the same age as Davis) chose to keep
Garcia in the position and did not hire Davis.
Davis testified about two other incidents regarding Ricotta that occurred
over the next several months. First, Ricotta replaced a retiring legal assistant with
an accountant, who was younger than Davis, to handle the legal fee reconciliation
that both Davis and Ricotta had performed. Second, Ricotta asked Davis to stop
taking service of process papers out of another employee’s tray.5 When she asked
Ricotta why, Ricotta told her it was confusing. Davis viewed this request as
5
The other employee was Ricotta’s legal assistant Terri Caldwell, an African-American
female in her fifties.
5
Ricotta taking responsibilities away from her.
On November 12, 2012, Ricotta sent an email to all personnel in the
litigation department regarding their projected schedules for 2013. Apache had a
policy in effect regarding office hours and scheduling, which provided that
Apache’s official operating hours were 7:30 a.m. to 5:30 p.m. Monday through
Thursday and 7:30 a.m. to 11:30 a.m. on Fridays. Ricotta, who traveled
frequently, had allowed employees to monitor their own schedules and permitted
flexibility in start and end times. Davis utilized the flexible schedule often,
generally working Monday, Wednesday, and Friday beginning at 9:00 or 10:00
a.m. and staying late, often until 9:30 p.m., and Tuesday and Thursday from 9:00
a.m. to 12:30 p.m. and 2:30 p.m. to 8:00 p.m. This schedule allowed Davis to take
extended breaks to transport her college-age daughter to and from her college
campus.6 By mid-November 2012, however, Ricotta had attended a management
conference where he was reminded of the office-hours policy, and he wanted to
make sure his staff had committed to a schedule that complied with the policy.
In Ricotta’s November 12, 2012 email, he reminded the employees of the
normal Apache office hours and asked each person to submit a proposed schedule
for the coming year. He stated in the email that regular business hours were
preferred but he would consider requests to adjust the schedule within reason,
giving as examples 6:30 a.m. to 4:30 p.m. or 8:00 a.m. to 6:00 p.m. Ricotta also
stated that overtime hours would have to be approved in advance.7 Staff members
other than Davis responded to Ricotta’s email with a proposed schedule within
6
Davis’s daughter attended the University of Houston at this point and lived with Davis.
Davis’s daughter had a restricted driver’s license and no vehicle so Davis, with Ricotta’s
approval, had used an extended lunch break to pick up her daughter from school, take her home,
and then return to Apache.
7
Davis consistently worked hundreds of overtime hours per year throughout her time at
Apache.
6
Apache’s general business hours, or with a start time no later than 8:30 a.m., thus
satisfying in Ricotta’s mind the corporate policy outlined in the email.8 Davis
submitted a request based on her current schedule that allowed her to transport her
daughter to and from college classes, asking to continue arriving between 9:00 a.m.
and 10:00 a.m. and staying late.
Ricotta responded by asking Davis to submit a request that kept as many of
her 40 work hours per week within “normal Apache business hours.” Davis then
asked to start each day between 8:30 and 9:00 a.m., while still allowing flexibility
for transporting her daughter to classes on Tuesdays and Thursdays. Apache HR
manager Mark Forbes, whom Ricotta had brought in to help in responding to
Davis’s request, instructed Ricotta that a start time after 8:30 would not be
permitted under the policy and that Davis could not leave during the day to
transport her daughter. Ricotta then told Davis that a 9:00 a.m. start time would
not be within company policy, but that he could approve a schedule for Davis of
8:30 a.m. to 6:30 p.m. with one hour for lunch. Davis sent an email to Ricotta
stating that the group’s success and her own excellent work product was the result
of the previously supported flexible schedules. Davis resubmitted her request to
start between 8:30 a.m. and 9:00 a.m. and stated she was “hopeful that you will
weigh the benefits of allowing me to continue my career at Apache utilizing my
current flexible working arrangement.” Ricotta viewed Davis’s request for the
same proposed schedule he had previously rejected to be insubordination. He also
felt that Davis’s requests for late arrivals, long breaks during the day, and
unusually late departure times were not a reasonable accommodation from the
8
The younger paralegals Fielder and Eldridge both sent compliant schedules in response
to Ricotta’s email, though in practice they repeatedly arrived late to work. Ricotta conceded that
Eldridge did not keep the schedule she proposed and that she “lied on her timesheets.” When
Ricotta later found out about Eldridge arriving late he disciplined her for the late arrivals.
7
company’s general office hours.
Davis also responded to Ricotta’s November 12, 2012 email with questions
regarding the requirement of overtime pre-approval. Because Eldridge and Fielder
took back-to-back maternity leaves in 2012, Davis had incurred a substantial
amount of overtime. Ricotta stated that Davis’s overtime within that same time
period made sense to him because of the maternity leaves. Davis queried whether
the new policy on overtime hours related to cost-cutting issues and stated that she
would be happy to stop working overtime hours immediately, although she hoped
she had earned his trust “to be discerning so that I would not have to ask every
time” when trying to meet a deadline. Ricotta confirmed that the change in
position on overtime related to Apache’s focus on cost control and on Ricotta’s
efforts to allocate work effectively so that no one had too much work. The second
day after this email, Davis, who had not yet changed her schedule, accidentally
worked two hours of overtime without advance approval. She informed Ricotta,
but he did not reprimand her or tell her she had violated a directive.
On Thursday, November 29, 2012, Davis requested vacation time for the
afternoon and following day. That morning, Ricotta asked Davis to perform
research. Davis could not complete the assignment before she was scheduled to
leave for the afternoon and sent Ricotta an email letting him know. In the email,
Davis offered to finish the project in the evening or over the weekend, which
would require overtime. Ricotta responded that Davis should give him what she
had so far, pick up the project the following week, and that overtime for his
research was unnecessary. Davis received Ricotta’s email but felt it would be a
waste of attorney time to give him the research in its current state. She thus
worked through the night, a total of approximately twelve hours of overtime, and
sent him an email with the information on Friday morning. Ricotta replied that
8
Davis should not have worked overtime without his approval, that this was the
second time she worked overtime without prior approval, and that he “expect[ed]
her to follow his instruction regarding overtime without exception.” Davis found
Ricotta’s response extremely upsetting, stating it caused her to go into convulsive
breathing.
Ricotta testified that this overtime incident, coupled with Davis’s failure to
give him a proposed schedule that was within company policy, led him to seriously
contemplate terminating Davis’s employment. Asked to rate where he was in the
decision-making process on a scale of one to ten in favor of termination, Ricotta
stated he was at an eight. Davis testified that in the two years since November
2010 when she attempted to speak with Ricotta about promotional opportunities,
Ricotta continued to give her “little jabs” and she could not live with it anymore.
II. Davis’s complaint of discrimination and Apache’s investigation
Davis spent the weekend drafting an email to Ricotta, Bernal, and Forbes.
The email, sent on December 3, 2012, states in pertinent part as follows:
It is with deep regret that after working for you so loyally for over five
years at Apache Corporation that I must formally claim that you have
created a hostile work environment for me in the Legal Department . .
. . Therefore, I am also hereby reporting this to the Company via our
HR Lawyer, David Bernal, and the Director of HR-North America,
Mark Forbes. In the near future, I will describe certain particular
abusive incidents and provide evidence of emails where you have
belittled and bullied me, especially during the past two weeks, and
almost on a daily basis.
I know that you are aware that your beat downs, intimidation, refusal
to discuss these issues with me, and refusal to discuss issues relative
to career advancement have caused me great emotional distress
because many of our discussions have ended with me in tears, yet you
appeared to be indifferent and never expressed remorse. In fact, as I
told you some months ago, your devastating words to me caused
9
nearly a year of depression and prompted me to seek employment in
the office of the Company’s Corporate Secretary (and elsewhere). . . .
If this doesn’t evoke any empathy from you, perhaps you should
imagine your reaction if your wife or daughter was subjected to
similar offensive behavior.
I believe that in the past few weeks, you have deliberately intensified
your derisive words toward me, have begun setting me up for failure,
and have taken a radical attitude against the long-established flextime
of your team . . . . It seems only a matter of time before you take the
“kill shot.” . . .
. . . I have concluded that you are trying to either drive me out of
Apache or are preparing to dismiss me after setting me up to fail. And
it has not escaped me that you have already taken a few steps to
overcome the void that will exist on our litigation team after you
accomplish my termination and complete your plan to circumvent
legal challenges to the “age discrimination” and “woman
discrimination” components, which violate both Title VII of the Civil
Rights Act of 1964 and the Age Discrimination in Employment Act of
1967. . . . It is the epitome of undeserved hostility and betrayal that
prompts my formal claim.
Please note that although I only briefly touched upon the “woman
discrimination” aspect of my claim, I have observed and experienced
the Company’s pervasive negative attitude toward advancing or
recognizing the contributions or accomplishments of its female
employees. Enough said on that for now; I will elaborate on this issue
when I provide the details to the incidents which I reference herein.
. . . I advise that this offensive conduct is unwelcome and it will no
longer be tolerated by me. Clearly, although you are a brilliant
litigator who has successfully pounded numerous adversaries into the
dust, you must stop the intimidation and sabotage of your loyal
paralegal. However, if you choose to use your power, position, and
legal expertise to make a bigger issue out of this claim, with God’s
grace, I am prepared to take this claim to another level. Please note
that I have done my homework and am well aware that the Company
is automatically liable for harassment by a supervisor that results in a
negative employment action such as termination, failure to promote,
and loss of wages . . . . And it goes almost without saying that you are
10
certainly aware that the law has made it illegal to fire, demote, harass,
or otherwise retaliate against an employee because he/she has
complained about discriminatory practices.
After receiving the email, Bernal responded to Davis and informed her that the
company takes all allegations and complaints of harassment seriously and that it
would open an investigation. Davis testified that after she filed her complaint on
December 3, 2012, Ricotta shunned her, indicated he was angry with her, and
stopped giving her any substantive work.
Apache began its investigation of Davis’s claims, with Bernal interviewing
Davis and other members of the legal department over the next several weeks.
Bernal conceded that Ricotta was his superior and that it could create the
appearance of a conflict of interest for the investigator to be investigating a
subordinate’s claim against his boss, but he felt there was no actual bias. About
three weeks after she sent her December 3, 2012 email, Davis gave Bernal a
document she had prepared entitled Hostile Workforce Timeline. The timeline
began November 12, 2012, with Ricotta’s email requesting schedules for 2013, and
ended on December 19, 2012, with an informal meeting between Bernal and Davis.
It covered the emails between Davis and Ricotta regarding Davis’s proposed and
rejected schedule for 2013 as well as the November 29, 2012 overtime incident.
Davis conceded that the timeline did not have any notes contending she was the
victim of age discrimination. On January 9, 2013, Bernal emailed Davis notice
that he had found no evidence of discrimination and that he was closing the
investigation. Davis thanked Bernal for doing the investigation but stated that she
did not trust Ricotta and wanted to work only with Bernal.
Bernal told Ricotta that he could continue his deliberations regarding
Davis’s employment and do what he thought was “in the best interest of the Legal
Group to ensure a cohesive unit going forward.” Bernal stated he instructed
11
Ricotta he could not in any way retaliate against Davis for filing the complaint.
Bernal also told Ricotta about Davis’s comment that she could no longer trust
Ricotta and wanted to work only with Bernal. When Ricotta asked for Bernal’s
opinion regarding what to do with Davis, Bernal told him he should terminate
Davis’s employment. Ricotta then interviewed the employees in the legal
department to obtain information about Davis’s efforts to “stoke a rebellion” over
the hours policy. Ricotta learned that one of the attorneys preferred not to work
with Davis and that Davis had made some unusual religiously-charged comments.
Bernal told Ricotta that he believed Davis was unstable and that he did not like
working with her.
III. Davis’s termination, EEOC charge, and lawsuit
Ricotta ultimately decided to terminate Davis’s employment and informed
her of this fact on January 25, 2013. The parties disagree on the reasons given for
Davis’s termination. Davis contends Ricotta told her she was being fired for the
reasons of arriving late to work, not doing her work, and working overtime without
approval, which Davis regarded as false reasons. Ricotta contends he discharged
Davis because she failed to turn in a schedule, worked overtime at least twice
without approval, made inappropriate comments in the workplace, and told Bernal
she no longer wished to work with Ricotta.
Davis timely filed a charge of discrimination with the EEOC. In the charge,
Davis checked the boxes for retaliation and age but did not check the box for sex.
She complained of age discrimination and retaliation for filing a good-faith
complaint of age discrimination, but she did not mention gender discrimination or
retaliation for filing a complaint of gender discrimination. After the EEOC issued
a right-to-sue letter, Davis filed this lawsuit asserting claims for age discrimination
and retaliation. She did not pursue a claim for gender discrimination.
12
The trial court submitted several questions to the jury. In Jury Question No.
1, the jury was asked whether age was a motivating factor in Apache’s decision to
discharge Davis, to which the jury responded “no.” In Jury Question No. 3, the
jury was asked whether Davis filed “a complaint of age or gender discrimination”
with Apache on December 3, 2012. The jury was instructed that Davis had to
prove both that: (1) she filed a complaint that put Apache on notice of acts of age
or gender discrimination; and (2) as of December 3, 2012, Davis had a good faith,
objectively reasonable belief that age or gender discrimination occurred based on
circumstances that she observed and reasonably believed. The jury answered
“yes” to Jury Question No. 3. In Jury Question No. 4, the jury was asked whether
Apache discharged Davis because she filed a complaint of age or gender
discrimination on December 3, 2012, to which the jury answered “yes.” In Jury
Question No. 5, the jury was asked whether Davis engaged in misconduct for
which Apache would have legitimately discharged her solely on that basis, to
which the jury answered “yes.”
The jury awarded Davis no damages for back pay, no future compensatory
damages, and $150,000 for past compensatory damages including emotional pain
and suffering, inconvenience, mental anguish, loss of enjoyment of life, and other
noneconomic losses. The parties tried the issue of attorneys’ fees to the bench.
The trial court signed a judgment awarding Davis $150,000 in damages on her
retaliation claim, $767,242 in attorneys’ fees through trial, $100,000 in conditional
appellate fees, and prejudgment and post-judgment interest. This appeal followed.
ANALYSIS
Apache challenges the trial court’s judgment in four issues, arguing the
judgment should be reversed because: (1) there is no evidence Davis engaged in a
protected activity that could support a retaliation claim; (2) there is no evidence
13
retaliation was the but-for cause of Davis’s termination; (3) Davis did not exhaust
her claim of retaliation for making a complaint of gender discrimination and no
evidence supports the jury’s finding she made a protected complaint of gender
discrimination; thus, Jury Question Nos. 3 and 4 commingled a valid theory of
liability with an invalid theory of liability; and (4) the attorneys’ fees awarded were
neither reasonable nor necessary and based on inadmissible and insufficient
evidence. We first address Apache’s issue regarding exhaustion of her claim of
retaliation for making a complaint of gender discrimination because it pertains to
the court’s jurisdiction. See In re City of Dallas, 501 S.W.3d 71, 73 (Tex. 2016)
(orig. proceeding) (per curiam). We then turn to Apache’s remaining issues.
I. Davis exhausted her remedy with regard to her claim of retaliation for
filing a complaint of gender discrimination.
The Labor Code maintains a comprehensive system of administrative review
for claims of unlawful employment practices. See Czerwinski v. Univ. of Tex.
Health Sci. Ctr. at Houston Sch. of Nursing, 116 S.W.3d 119, 122 (Tex. App.—
Houston [14th Dist.] 2002, pet. denied).9 A person claiming to be aggrieved by an
unlawful employment practice in violation of Chapter 21 must exhaust her
administrative remedies before bringing a lawsuit. Waffle House, Inc. v. Williams,
313 S.W.3d 796, 804 (Tex. 2010); Czerwinski, 116 S.W.3d at 121–22. The
exhaustion requirement is a “mandatory prerequisite” to suit in Texas. Schroeder
v. Tex. Iron Works, Inc., 813 S.W.2d 483, 488 (Tex. 1991), overruled on other
grounds by In re United Servs. Auto Ass’n, 307 S.W.3d 299, 310 (Tex. 2010); Sw.
9
Though Chapter 21 of the Labor Code is often referred to as the Texas Commission on
Human Rights Act or TCHRA, see, e.g., Czerwinski, 116 S.W.3d at 121, subsequent legislation
abolished the Texas Commission on Human Rights and transferred those duties to the Texas
Workforce Commission Civil Rights Division. See Act of June 18, 2003, 78th Leg., R.S., ch.
302, § 1, 2003 Tex. Gen. Laws 1279 (codified at Tex. Lab. Code § 21.0015). We thus refer to
the Chapter 21 provisions at issue simply as the Labor Code.
14
Convenience Stores, LLC v. Mora, 560 S.W.3d 362, 400 (Tex. App.—El Paso
2018, no pet.).
To exhaust her remedies, a plaintiff is required to file an administrative
charge with the EEOC or the Texas Workforce Commission. Williams, 313
S.W.3d at 804–05; Mora, 560 S.W.3d at 400. The exhaustion requirement affords
the administrative agency the opportunity to investigate the allegation, informally
eliminate any discrimination, and minimize costly litigation. See Tex. Lab. Code
§§ 21.203, 21.204(a), 21.207(a); Czerwinski, 116 S.W.3d at 121. “In short, unless
and until an employee timely submits her complaint against her employer to the
EEOC or TWC in the form of a charge of discrimination, Texas courts are barred
from adjudicating that complaint.” Mora, 560 S.W.3d at 400; see Tex. Dep’t of
Transp. v. Esters, 343 S.W.3d 226, 231 (Tex. App.—Houston [14th Dist.] 2011, no
pet.) (holding failure to exhaust deprives the trial court of subject-matter
jurisdiction over the unexhausted claims).
We construe the initial charge liberally and “look slightly beyond its four
corners, to its substance rather than its label” in determining whether a claim was
included. City of Sugar Land v. Kaplan, 449 S.W.3d 577, 581–82 (Tex. App.—
Houston [14th Dist.] 2014, no pet.) (citing Pacheco v. Mineta, 448 F.3d 783, 789
(5th Cir. 2006)). Nevertheless, we do not construe the charge to include facts that
were initially omitted. Id. at 582. “A lawsuit under the Act will be limited in
scope to only those claims that were included in a timely administrative charge and
to factually related claims that could reasonably be expected to grow out of the
agency’s investigation of the claims stated in the charge.” Id. In assessing the
claims covered by a charge, the most important element is the factual statement
contained therein, rather than the boxes that are checked on the form. Lopez v.
Tex. State Univ., 368 S.W.3d 695, 702 (Tex. App.—Austin 2012, pet. denied)
15
(citing Sanchez v. Standard Brands, Inc., 431 F.2d 455, 462 (5th Cir. 1970)).
In her EEOC charge, Davis stated that she had been abruptly terminated
from her employment with Apache by Ricotta for no plausible reason. She related
facts regarding the November 12, 2012 scheduling email, her requested
accommodation on the schedule, and allegations that Eldridge and Fielder, who
were younger than her, were treated better. After stating a claim for age
discrimination, Davis asserted her retaliation claim, stating: “When I could no
longer tolerate the discrimination and harassment, I reported my good faith belief
of age discrimination on December 3, 2012 (See attached as Exhibit 1).” She then
stated that, after she reported her belief, Ricotta treated her differently and gave her
no substantive work, that she suffered damages, and that a causal link existed
between her damages and her good faith report of discrimination. Davis checked
the boxes for retaliation and age discrimination but did not check the box for sex
discrimination. There is no mention in Davis’s charge that she had made a
complaint of gender discrimination, no mention of any discriminatory treatment
toward women, and no mention that Apache retaliated against her for making a
complaint of gender discrimination.
Apache argues that Davis made no factual allegation in her EEOC charge
that could reasonably be expected to grow into a claim of retaliation based on a
complaint of gender discrimination. Davis points to the fact that her EEOC charge
cites her December 3, 2012 email, and she urges us to look beyond the four corners
of the charge to the email, as well as to Apache’s response to the EEOC as
evidence that she exhausted her retaliation claim for making a complaint of gender
discrimination. Davis’s EEOC charge did not attach the email, and our record does
not include Apache’s response to the EEOC.
The record does, however, include Defense Exhibit 183, which appears to be
16
an electronic response from Davis to the Texas Workforce Commission. In that
response, Davis responds to a question asking whether something specific
happened that caused her to be fired by stating that she emailed Ricotta on
December 3, 2012, and “claimed age and gender discrimination, and stated that
such conduct would no longer be tolerated by me.” And, at the pretrial hearing on
the motion to dismiss, counsel for Apache stated that the December 3, 2012 email
was attached to Apache’s response to the EEOC. In Patton v. Jacobs Engineering,
the Fifth Circuit permitted a plaintiff to show exhaustion of remedies based on an
intake questionnaire that was filed with his formal charge. 874 F.3d 437, 443 (5th
Cir. 2017). In addition, the defendant’s position statement included a response to
the challenged claim. Id. at 444. The court held that the plaintiff thus triggered
“the investigatory and conciliatory procedures of the EEOC” regarding the
challenged claim. Id. We conclude that the electronic response to the Texas
Workforce Commission and counsel’s statement10 that the email was attached to
Apache’s response is sufficient to show Davis triggered the investigatory and
conciliatory procedures necessary to exhaust her claim of retaliation for making a
claim of gender discrimination.
We further conclude that the retaliation claim for making a complaint of
gender discrimination is factually related to the retaliation for making a complaint
of age discrimination such that the claim could be reasonably expected to grow out
of the investigation. See Pacheco, 448 F.3d at 789; Alief Indep. Sch. Dist. v.
10
We are cognizant of the rule that subject-matter jurisdiction may not be conferred
through a judicial admission where it would not otherwise exist. See In re Crawford & Co., 458
S.W.3d 920, 928 n.7 (Tex. 2015) (per curiam) (orig. proceeding) (noting judicial admission
cannot create subject-matter jurisdiction); see also Fed. Underwriters Exch. v. Pugh, 174 S.W.2d
598, 600 (Tex. 1943) (“Jurisdiction of the subject matter exists by operation of law only, and
cannot be conferred upon any court by consent or waiver.”). We do not interpret counsel’s
statement that the email was attached to its response to the EEOC charge as a judicial admission
creating subject-matter jurisdiction but rather as evidence of an undisputed fact showing
jurisdiction exists.
17
Brantley, 558 S.W.3d 747, 756 (Tex. App.—Houston [14th Dist.] 2018, pet.
denied). The two retaliation claims are based on the same document—Davis’s
December 3, 2012 email—and the same action taken by Apache. Thus, it is
reasonable to expect that the investigation would include retaliation for making the
complaint, whether based on age or gender discrimination. See Brantley, 558
S.W.3d at 756–57 (concluding plaintiff exhausted remedies because charge
included allegations that described generally the complained-of action or
practices).
We overrule the portion of Apache’s third issue arguing Davis failed to
exhaust her administrative remedies.
II. There is sufficient evidence to support the jury’s finding that Davis
engaged in protected activity.
A. Standards of review and applicable law
Apache’s first issue challenges the legal and factual sufficiency of the
evidence that Davis engaged in a protected activity to support her retaliation claim.
In reviewing the legal sufficiency of the evidence we view the evidence in the light
most favorable to the jury’s finding, crediting favorable evidence if a reasonable
fact finder could and disregarding contrary evidence unless a reasonable fact finder
could not. City of Keller v. Wilson, 168 S.W.3d 802, 822, 827 (Tex. 2005);
Houston Methodist San Jacinto Hosp. v. Ford, 483 S.W.3d 588, 591 (Tex. App.—
Houston [14th Dist.] 2015, pet. denied). The jury is the sole judge of the
witnesses’ credibility and the weight to be given their testimony. Wilson, 168
S.W.3d at 819. In reviewing the factual sufficiency of the evidence to support a
jury’s finding, we may set aside the finding only if it is so contrary to the
overwhelming weight of the evidence as to be clearly wrong and unjust. See Mar.
Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998); Nip v. Checkpoint Sys.,
18
Inc., 154 S.W.3d 767, 769 (Tex. App.—Houston [14th Dist.] 2004, no pet.). In
reviewing the factual sufficiency of the evidence, we examine the entire record,
considering the evidence both in favor of and contrary to the challenged finding.
See Ellis, 971 S.W.2d at 406–07; Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
The amount of evidence necessary to affirm is far less than the amount
necessary to reverse a judgment. GTE Mobilnet of S. Tex. Ltd. P’ship v. Pascouet,
61 S.W.3d 599, 616 (Tex. App.—Houston [14th Dist.] 2001, pet. denied). Because
the jury is the sole judge of the credibility of the witnesses and the weight to afford
their testimony, we may not substitute our judgment for that of the trier-of-fact,
even if the evidence would support a different result. Id. at 615–16. If we
conclude the evidence is factually insufficient, we must detail the evidence
relevant to the issue and state in what regard the contrary evidence greatly
outweighs the evidence in support of the challenged finding; we need not do so
when we conclude the evidence is factually sufficient. See Gonzalez v. McAllen
Med. Ctr., Inc., 195 S.W.3d 680, 681 (Tex. 2006) (per curiam).
To prove a violation of the Labor Code based on unlawful retaliation, Davis
must first establish that she engaged in protected activity. San Antonio Water Sys.
v. Nicholas, 461 S.W.3d 131, 137 (Tex. 2015) (elements of retaliation claim are:
(1) plaintiff engaged in an activity protected by the Labor Code (2) an adverse
employment action occurred; and (3) there exists a causal link between the
protected activity and the adverse action). Protected activity consists of, among
other things, “filing an internal complaint, opposing a discriminatory practice, or
making a charge of discrimination with the EEOC.” Alamo Heights Indep. Sch.
Dist. v. Clark, 544 S.W.3d 755, 786 (Tex. 2018). The legislature intended for state
law to correlate with federal law; we may, therefore, look to analogous federal
cases when applying the Labor Code. See Tex. Lab. Code § 21.001; Wal-Mart
19
Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex. 2003). While a burden-
shifting analysis applies in discrimination cases that have not been fully tried on
the merits, where, as in this case, a trial on the merits has occurred, we assess
whether the evidence is legally sufficient to support the jury’s ultimate finding.
Canchola, 121 S.W.3d at 739.
Jury Question No. 3 asked whether Davis filed a complaint of age or gender
discrimination with Apache on December 3, 2012, and the jury answered “yes.”
Jury Question No. 4 asked whether Apache discharged Davis because she filed a
complaint of age or gender discrimination on December 3, 2012. Davis’s
retaliation claim is thus premised upon the complaint made in her December 3,
2012 email.11 Apache argues there is no evidence that Davis engaged in protected
activity because she did not file a complaint of age or gender discrimination on
December 3, 2012, and there is no evidence Davis held an objectively reasonable
good-faith belief that Apache engaged in actionable discrimination.
B. Evidence Davis made a complaint of age and gender discrimination.
To invoke the anti-retaliation protection of the Labor Code, an employee
must oppose conduct the employee reasonably believes is prohibited by the Code.
See Ford, 483 S.W.3d at 591. Magic words are not required, but simply
complaining of “harassment,” “hostile environment,” “discrimination,” or
“bullying” is not sufficient. Alamo Heights, 544 S.W.3d at 786-87. There must be
some indication that the protected class at issue motivated the conduct opposed.
See id.; see also Warrick v. Motiva Enters., L.L.C., No. 14-13-00938-CV, 2014
WL 7405645, at *8 (Tex. App.—Houston [14th Dist.] Dec. 30, 2014, no pet.)
11
The only other activity occurring on December 3, 2012, was an email exchange
between Davis and Bernal, in which Davis asked whether Bernal had kept his notes from an
incident between Davis and Ricotta “some years ago.” The emails do not identify the subject of
the incident.
20
(mem. op.) (email not protected activity because it did not allege treatment was
based on protected characteristic such as race or perceptions of disability); Lee v.
Harris Cty. Hosp. Dist., No. 01-12-00311-CV, 2013 WL 5637049, at *6 (Tex.
App.—Houston [1st Dist.] Oct. 15, 2013, pet. denied) (mem. op.) (general
complaints not protected where they do not provide connection between opposed
behavior and characteristic protected by Labor Code). Details or incidents not
included in the complaint cannot be considered in determining whether the
employee alerted the employer of a reasonable belief that age discrimination had
occurred. See Alamo Heights, 544 S.W.3d at 788.
In Jury Question No. 3, the jury was instructed that, to find Davis made a
complaint of age or gender discrimination, Davis had to prove both: (1) she filed a
complaint that put Apache on notice of acts of age or gender discrimination; and
(2) as of December 3, 2012, Davis had a good faith, objectively reasonable belief
that age or gender discrimination occurred based on circumstances she observed
and reasonably believed. Davis did not object to the instruction to Jury Question
No. 3. In analyzing Apache’s issue, we thus measure the evidence to support the
elements in the charge as given. See Akin, Gump, Strauss, Hauer & Feld, L.L.P. v.
Nat’l Dev. & Research Corp., 299 S.W.3d 106, 112 (Tex. 2009).
Davis’s email complaint is based largely on her assertions that Ricotta
engaged in conduct creating a hostile work environment. She complains at length
regarding Ricotta’s bullying, belittling, and abusive behavior, including claims that
he has engaged in “beat downs” and intimidation and directed derisive words
toward her. Mere complaints of bullying, intimidation, or “beat downs” is not
protected activity as a matter of law; instead, there must be some indication of a
belief stated in the complaint that a protected class, such as age or gender,
motivated the conduct. In Alamo Heights, the Supreme Court of Texas explained:
21
Though the letter characterized Monterrubio’s behavior as
“inappropriate,” “offensive,” “bullying,” “harassment,”
“embarrassing,” “rude” and “intimidating,” a jury could not
reasonably conclude [plaintiff] alerted [defendant] that she thought
Monterrubio was acting out of sexual desire towards her or that her
conduct otherwise constituted sex-based discrimination.
544 S.W.3d at 787. Simply put, “protected opposition must at least alert an
employer to the employee’s reasonable belief that unlawful discrimination is at
issue.” Exxon Mobile Corp. v. Rincones, 520 S.W.3d 572, 586 (Tex. 2017)
(quoting Brown v. United Parcel Serv., Inc., 406 F. App’x 837, 840 (5th Cir. 2010)
(per curiam)). A vague complaint without reference to an unlawful employment
practice does not constitute protected activity. See Davis v. Dallas Indep. Sch.
Dist., 448 F. App’x 485, 493 (5th Cir. 2011) (collecting cases).
We conclude that Davis’s December 3, 2012 email did sufficiently identify
acts of age and gender discrimination to constitute a protected activity under the
standards for legal and factual sufficiency review. Davis expressly references both
“age discrimination” and “woman discrimination” and states that Ricotta has taken
steps to “overcome the void that will exist on our litigation team after you
accomplish my termination,” (i.e. after Ricotta replaces her) “in violation of both
Title VII of the Civil Rights Act of 1964 and the Age Discrimination in
Employment Act of 1967.” While the email does not contain the details of her age
claim, it sufficed to alert Apache of her belief that Ricotta had taken steps that
violated age discrimination laws. See Ganheart v. Brown, 740 F. App’x. 386, 390
(5th Cir. 2018) (per curiam) (complaining of staffing “bias,” circulating email
criticizing discriminatory hiring practices, and expressing concerns regarding equal
and fair treatment were related to race and gender equality in the workplace and
thus protected activity); Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 282
(4th Cir. 2015) (on reh’g. en banc) (explaining employee is protected when
22
opposing conduct employee reasonably believes is in violation of Title VII that is
complete or in progress); cf. Warrick, 2014 WL 7405645, at *8 (concluding email
did not constitute protected activity in part because the email did “not allege that
either her co-worker’s treatment or the alleged bullying against her were based on
a protected characteristic such as race or perceptions of disability”).
With regard to gender, the email states, “I have observed and experienced
the Company’s pervasive negative attitude toward advancing or recognizing the
contributions or accomplishments of its female employees.” Failure to promote
based on gender can be an unlawful employment practice. See Tex. State Office of
Admin. Hearings v. Birch, No. 04-12-00681-CV, 2013 WL 3874473, at *18 (Tex.
App.—San Antonio July 24, 2013, pet. denied) (mem. op.) (complaining about
failure to promote older females was protected activity though employee had no
evidence of causal link). Thus, this sentence was sufficient to put Apache on
notice of Davis’s belief that Apache had engaged in acts of gender discrimination.
Apache argues the December 3, 2012 email is insufficient under Alamo
Heights because Davis does not link any of the acts referenced in the email to
prohibited conduct, and the mere use of buzzwords is insufficient. See Alamo
Heights, 544 S.W.3d at 786–87 (“Magic words are not required to invoke the
TCHRA’s anti-retaliation protection. But complaining only of harassment, hostile
environment, discrimination, or bullying is not enough.” (footnote and internal
quotations omitted)).12 We find Alamo Heights distinguishable on this point
12
See also McNeel v. Citation Oil & Gas Corp., 526 S.W.3d 750, 762 (Tex. App.—
Houston [14th Dist.] 2017, no pet.) (employee complained of offensive comments and behavior
and argued she complained of discrimination but did not specify discriminatory nature of
conduct); Ford, 483 S.W.3d at 593 n.3 (noting “the report must contain sufficient description to
at least alert an employer of what discriminatory practice the employee reasonably believes
occurred. . . . The employee must indicate what alleged discriminatory conduct is at issue.”)
(internal quotation omitted).
23
because Davis did not use mere buzzwords or the simple phrase “discrimination.”
See id. at 787 (employee did not indicate she believed conduct was based on sexual
desire or otherwise constituted sex-based discrimination). Instead, Davis tied her
complaint to a protected class by using the words “age discrimination” and
“woman discrimination.” This was sufficient to alert Apache that Davis was
complaining of acts of age and gender discrimination. See Gonzalez v. Champion
Techs., Inc., 384 S.W.3d 462, 473 (Tex. App.—Houston [14th Dist.] 2012, no pet.)
(concluding complaints of comments made regarding plaintiff’s national origin
were “certainly complaints related to discrimination” and thus protected activity).13
C. There is sufficient evidence of a good faith, objectively reasonable
belief.
Jury Question No. 3 also required Davis to prove that as of December 3,
2012, she “had a good faith, objectively reasonable belief that age or gender
discrimination occurred based on circumstances that she observed and reasonably
believed.” Opposition to a discriminatory practice does not require Davis to
establish the merits of her discrimination claim. See Nicholas, 461 S.W.3d at 137
(“Opposition to a discriminatory practice is a protected activity irrespective of the
13
Throughout her brief, Davis references complaints other than the email that she
contends were protected activity. For instance, she states she made a 2010 discrimination
complaint regarding the promotion and title addition for Eldridge and Fielder, she challenged
Ricotta’s discriminatory refusal to provide her a scheduling accommodation, and she provided
Bernal with more information after her December 3, 2012 email in meetings and through the
Hostile Workforce Timeline that she gave him weeks after the investigation began, which she
describes as oppositional activity under the anti-retaliation law. These activities do not constitute
evidence that she engaged in protected activity for two reasons. First, she did not include these
actions in her December 3, 2012 email, and thus they cannot be considered in determining
whether Davis alerted Apache that her complaint was based on acts of age or gender
discrimination. See Alamo Heights, 544 S.W.3d at 788. Second, Jury Question No. 3 expressly
limited Davis’s claim to a complaint of age discrimination on December 3, 2012. We must
measure the sufficiency of the evidence under the instructions given in the jury charge. See Nat’l
Dev. & Research Corp., 299 S.W.3d at 112. Evidence related to actions taken by Davis before
or after that date cannot support the jury’s finding of a complaint made on December 3, 2012.
24
merits of the underlying discrimination claim.”). But she was required to offer
sufficient evidence that she had a good faith, objectively reasonable belief that the
conduct she reported violated the law. Id. Apache does not challenge whether
Davis subjectively or in good-faith held a belief that age or gender discrimination
occurred. Apache challenges whether the evidence supports a finding that Davis’s
belief was objectively reasonable.
Whether Davis’s belief was objectively reasonable is measured against
existing substantive law describing the parameters of the unlawful conduct. Ford,
483 S.W.3d at 592. In determining whether Davis established an objectively
reasonable belief, we consider only evidence of what Davis knew and was aware
of at the time she made the complaint. See Nicholas, 461 S.W.3d at 137 (“[W]hat
counts is only the conduct that the person opposed, which cannot be more than
what she was aware of.” (quoting Clover v. Total Sys. Servs., Inc., 176 F.3d 1346,
1352 (11th Cir. 1999))); see also Ford, 483 S.W.3d at 592–93.
As discussed previously, Davis reported in her email that Ricotta was
abusive and bullying toward her, and she mentioned discrimination in violation of
the Age Discrimination in Employment Act and Title VII. In her brief, Davis cites
the following evidence to support her belief that age discrimination occurred:
 In July 2010, Ricotta promoted the younger Eldridge and Fielder but
did not promote Davis despite Davis’s superior job performance and
evaluations;
 Ricotta provided Fielder with outside training, yet never provided
outside training to Davis;
 In October 2011, Apache promoted the younger Garcia to the Senior
Paralegal position in the Corporate Secretary’s office rather than
Davis;
 In April 2012, Ricotta stripped Davis of the legal bill reconciliation
duties and gave them to the younger and newly hired Alejandra
25
Bravo;
 In November 2012, Ricotta denied Davis a requested scheduling
accommodation but granted one to the younger Eldridge and Fielder;
 Apache failed to promote other older female Legal Department
employees; and
 Disparate compensation paid to her and Mary Heinitz.
We agree with Apache that the evidence of other employees’ salaries and the
purported accommodation of Eldridge and Fielder’s scheduling requests cannot
support her objectively reasonable belief because Davis conceded at trial that she
did not have any knowledge of other employees’ salary, and she did not know of
the schedules approved for Fielder and Eldridge when she made her complaint.
Only those facts of which she was aware may support a reasonable belief that
discrimination has occurred.14 Nicholas, 461 S.W.3d at 137. Likewise, Apache’s
hiring of Garcia rather than Davis for the Corporate Secretary paralegal role cannot
support a reasonable belief of age discrimination because the role was a lateral
transfer that paid less than Davis’s salary and would have been a demotion. See
Burger v. Cent. Apartment Mgmt., Inc., 168 F.3d 875, 879 (5th Cir. 1999) (holding
as a matter of law that “[r]efusing an employee’s request for a purely lateral
transfer does not qualify as an ultimate employment decision”). No reasonable
14
In its reply brief, Apache argues that Davis may not rely on any evidence or acts that
were not cited in her December 3, 2012 email to show her reasonable belief that discrimination
occurred, citing Nicholas, 461 S.W.3d at 137. We do not view Nicholas as holding that only
those facts cited in the email may be used to determine whether the employee formed a
reasonable belief. While the Nicholas opinion does state “what counts is only the conduct that
the person opposed, which cannot be more than what she was aware of,” the issue in Nicholas
was the employee’s attempt to rely on facts she was not aware of at the time she filed her
complaint—not an attempt to rely on facts not included in the complaint. Id. In assessing
whether an employee had a reasonable belief that discrimination occurred, courts look at the
evidence the employee was aware of, not only the evidence that the employee cited in the
complaint. See Strothers v. City of Laurel, 895 F.3d 317, 328 (4th Cir. 2018) (describing inquiry
as “whether the circumstances known to [plaintiff] at the time of her complaint support a
reasonable belief that a hostile work environment existed or was in progress”).
26
person could believe that the failure to transfer Davis to a lower paying position in
this case was age discrimination.
We do, however, find sufficient evidence to support Davis’s belief of age
discrimination based on the failure to give promotions or additional titles to her
and those whom Davis viewed as the older, or veteran, paralegals. A claim of age
discrimination based on failure to promote requires proof that: (1) the plaintiff is a
member of the protected class; (2) the plaintiff was qualified for a position or
desired employment action; (3) the plaintiff was not promoted or given the desired
employment action; and (4) the position or action was given to someone outside
the protected class. See Blow v. City of San Antonio, 236 F.3d 293, 296 (5th Cir.
2001); see also Dworschak v. Transocean Offshore Deepwater Drilling, Inc., 352
S.W.3d 191, 199 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (listing elements
of age discrimination case based on termination).
Davis testified that she believed she and other veteran paralegals were
discriminated against based on age when she learned of the title change and
promotion for Eldridge and title change for Fielder to E-Discovery Coordinator.
Of course, Davis’s subjective beliefs alone are not sufficient. Nicholas, 461
S.W.3d at 138. There must be evidence that a reasonable person would believe the
failure to grant titles or promote older or veteran paralegals amounted to age
discrimination under the Labor Code. See id. (“Regardless of what Nicholas
subjectively believed about Flores’s conduct, no reasonable person would believe
that a handful of lunch invitations amounted to sexual harassment actionable under
the TCHRA.”). In this case, Davis also testified that she noticed other older
women who had been denied opportunities or had what she thought was a pay cut.
She cited Mary Heinitz, Terrie Caldwell, Tammy Fitch, Regina Broughton-Smith,
and Susie Zaccarria as examples of older women she was thinking of who had not
27
been given certain titles. According to Davis, she and the older paralegals had
more experience and qualifications than Eldridge and Fielder and should also have
been given promotions or title changes.15 Davis also observed Ricotta remove the
legal bill reconciliation responsibilities from her and give them to the younger
Alejandra Bravo. While Davis may be incorrect that Apache discriminated based
on age in failing to give others title changes or promotions or transferring certain
of her duties to a younger person with accounting experience, we cannot say no
reasonable person would have believed it was based on age.
With regard to gender discrimination, we likewise find sufficient evidence
exists to support the jury’s finding that Davis held a reasonable belief gender
discrimination had occurred. In support of her belief Davis cites the following:
 Apache promoted and transferred Albert Tijerina out of the Litigation
Department to a business unit where there were “promotional
opportunities” several years earlier but did not transfer Davis to the
Corporate Secretary paralegal role;
 Apache subjected Davis to a hostile work environment based, at least
in part, on her gender, by refusing to promote her, threatening to cut
her salary, stripping her of substantive job responsibilities, obstructing
her effort to laterally transfer, denying her a scheduling
accommodation, setting her up to fail, and repeatedly berating and
intimidating her;
 Ricotta acted out of “sexist animus” because he knew she was a single
mother and “was powerless to defend herself,” and several years
earlier a paralegal complained to Roxanne Armstrong that Ricotta was
demanding and wanted priority for his work;
 The Apache Legal Department culture “harbored a sexist, demeaning
view of women” based on “sexist epithets” or comments made at trial;
15
Davis was given the title change she requested when Ricotta gave her the title Senior
Paralegal and Legal Research Specialist, but she did not receive any additional compensation
with the title change.
28
 Apache failed to promote and disparately compensated numerous
older female Legal Department employees; and
 Apache replaced Armstrong with Ricotta, a male, and hired only male
attorneys in the litigation department during Davis’s tenure at Apache.
We agree with Apache that the bulk of evidence cited by Davis as support
for her good faith belief in gender discrimination does not support her claim. For
example, the fact that Ricotta knew Davis was a single mother does not suggest
gender animus. Moreover, Davis was not at Apache when Armstrong received the
complaint about Ricotta from another paralegal, nor did she testify she knew about
the complaint. And Davis did not have knowledge of “sexist epithets” or
comments made at trial or knowledge of other employees’ salaries when she made
her complaint on December 3, 2012. As a result, these facts cannot form the basis
of a reasonable belief in gender discrimination. See Nicholas, 461 S.W.3d at 137.
Moreover, at trial Davis attributed most of her complaints regarding the
refusal to promote her, threatening to cut her salary, stripping her of substantive
job responsibilities, obstructing her effort to laterally transfer, denying her a
scheduling accommodation, setting her up to fail, and repeatedly berating and
intimidating her more to age, rather than gender. She stated she believed she had
been passed over in receiving a promotion because of her age and described the
“woman discrimination” concern expressed in her email as a concern that “older
women” were being discriminated against. She did present evidence that she
believed Ricotta’s decision to require adherence to the Apache office hours policy
would have an adverse effect on the mothers in the office.
We conclude that sufficient evidence of an objectively reasonable belief of
gender discrimination exists based on her testimony that she observed other
women who had not received titles or promotions, knew Apache had allowed male
29
paralegal Albert Tijerina to transfer from litigation to a business unit where there
were promotional opportunities, observed Apache replacing Armstrong with a
male (Ricotta), and observed Apache hiring only male litigators for the litigation
department. The Texas Labor Code provides that an employer commits an
unlawful employment practice if because of sex the employer fails or refuses to
hire an individual or discriminates against an individual in connection with
compensation or the terms, conditions, or privileges of employment. Tex. Lab.
Code § 21.051; Ysleta Indep. Sch. Dist. v. Monarrez, 177 S.W.3d 915, 917 (Tex.
2005) (per curiam). Apache accurately points out that Davis did not present
evidence as to whether other women applied for and had better credentials for the
positions filled by men or evidence of other men that were given titles or
promoted. But we conclude this argument goes to the merits of a gender
discrimination claim, rather than whether a reasonable person could believe gender
discrimination had occurred. Davis was not required to prove the merits of her
claim in order to establish a reasonable belief. See Nicholas, 461 S.W.3d at 137.
The evidence is legally and factually sufficient to support the jury’s finding
that Davis filed a complaint of age or gender discrimination. We overrule
Apache’s first issue.
III. There is sufficient evidence of but-for causation.
In its second issue, Apache argues there is legally and factually insufficient
evidence that Davis’s complaint was the but-for cause of Apache’s decision to
terminate her employment. To support her claim of unlawful retaliation under the
Labor Code, Davis must produce evidence of a causal link between her protected
activity and the adverse employment action. See Alamo Heights, 544 S.W.3d at
789. Jury Question No. 4 instructed the jury that Davis had to establish that
without her filing a complaint of age or gender discrimination, her termination
30
would not have occurred when it did. The question further instructed the jury that
there may be more than one cause of an employment decision and that Davis need
not establish her complaint was the sole cause of Apache’s decision.
To determine whether sufficient evidence of but-for causation exists, courts
examine all of the circumstances, including the following factors: temporal
proximity between the protected activity and the adverse action, knowledge of the
protected activity, expression of a negative attitude toward the employee’s
protected activity, failure to adhere to relevant established company policies,
discriminatory treatment in comparison to similarly situated employees, and
evidence the employer’s stated reason is false. Alamo Heights, 544 S.W.3d at 790
(citing City of Fort Worth v. Zimlich, 29 S.W.3d 62, 69 (Tex. 2000)). We thus
examine the evidence under each of these factors.
1. Temporal proximity
Apache terminated Davis’s employment approximately seven weeks after
she filed her complaint. Such close temporal proximity supports an inference of
retaliation. See River Oaks L-M Inc. v. Vinton-Duarte, 469 S.W.3d 213, 228 (Tex.
App.—Houston [14th Dist.] 2015, no pet.). Apache argues that the timing in this
case is at best neutral because Davis conceded in her December 3, 2012 email she
knew Ricotta was planning to fire her and “[c]arrying out a previously planned
employment decision is no evidence of causation.” Alamo Heights, 544 S.W.3d at
790.
Ricotta stated that after Davis repeatedly asked to work a schedule that was
outside company policy and worked overtime the second time without approval
after he told her not to, he was leaning towards terminating her employment.
Davis stated in her December 3, 2012 email that she knew Ricotta was “trying to
either drive me out of Apache or are preparing to dismiss me after setting me up to
31
fail” and referenced Ricotta’s “plan to terminate me without cause” and
“circumvent the law.” In Clark County School District v. Breeden, the Court
explained: “Employers need not suspend previously planned transfers upon
discovery that a Title VII suit has been filed, and their proceeding along lines
previously contemplated, though not yet definitively determined, is no evidence
whatsoever of causality.” 532 U.S. 268, 272 (2001). While the jury could have
believed Ricotta that he was already contemplating firing Davis before she sent her
email due to the scheduling and overtime issues, the jury also could have believed
that he had not planned to do so and instead terminated her employment because
she sent the December 3, 2012 email. The close temporal proximity factor weighs
in favor of the jury’s finding.
2. Knowledge of the protected activity
This factor weighs in favor of the jury’s finding. It is undisputed that Davis
directed her email complaint to Ricotta and that he knew about her complaint at the
time he decided to terminate her employment.
3. Expression of a negative attitude toward the protected activity
This factor also weighs in favor of the jury’s finding because there was
evidence that Ricotta displayed a negative attitude toward Davis following the
December 3, 2012 email. Davis testified that, after she sent the email, Ricotta
“shunned her,” did not give her any more substantive work, and one time slammed
a door near her office, which she interpreted as anger directed towards her. While
Ricotta denied expressing a negative attitude, stating instead that he had been
instructed to minimize his contact with Davis during the investigation, and denied
slamming the door, the jury was free to believe Davis’s testimony and find that
Ricotta expressed a negative attitude toward Davis for filing her complaint. See
City of Keller, 168 S.W.3d at 819 (“[Jurors] may choose to believe one witness and
32
disbelieve another.”); Jefferson Cty. v. Davis, No. 14-13-00663-CV, 2014 WL
4262184, at *7 (Tex. App.—Houston [14th Dist.] Aug. 28, 2014, pet. denied)
(mem. op.).
4. Failure to adhere to relevant established company policies
This factor weighs against the jury’s finding because there was no evidence
that Apache violated a company policy. While Davis argues that Apache violated
its progressive discipline policy by deciding to terminate Davis rather than counsel
or discipline her, there was no written discipline policy in evidence and Apache’s
director of human resources testified that Apache did not require progressive
discipline before terminating an employee’s employment. Instead, Apache’s
policy is to allow the supervisor to decide. In the absence of an internal policy
requiring progressive discipline, there is no evidence that Apache violated any
established company policies. See Okpere v. Nat’l Oilwell Varco, L.P., 524
S.W.3d 818, 832 (Tex. App.—Houston [14th Dist.] 2017, pet. denied).
5. Discriminatory treatment in comparison to similarly situated employees
Davis argues that Apache disparately disciplined Davis as compared to
Eldridge and Fielder. Specifically, she argues Apache took no disciplinary action
against the “far more insubordinate Eldridge and Fielder” who violated the office
hours policy by arriving late and lying on their timesheets. Apache argues that
Davis failed to produce any evidence that it treated her differently in comparison to
similarly situated employees because she did not show Eldridge and Fielder
committed the same misconduct as Davis—that is, Eldridge and Fielder did not
defy orders to stop working overtime and did not refuse to submit a compliant
schedule.
To show discriminatory treatment in comparison to similarly situated
33
employees, Davis had to show that the “circumstances are comparable in all
material respects, including similar standards, supervisors, and conduct.” Alamo
Heights, 544 S.W.3d at 791. To prove disparate discipline, the employee must
usually show “that the misconduct for which [he] was discharged was nearly
identical to that engaged in by a [female] employee whom [the company]
retained.” Monarrez, 177 S.W.3d at 917 (alteration in original) (quoting Smith v.
Wal-Mart Stores, Inc., 891 F.2d 1177, 1180 (5th Cir. 1990)). While we agree that
arriving late to work and not noting it on the timesheets is different than Davis’s
conduct, we conclude the jury could find that falsifying timesheets is more serious
than not submitting a compliant schedule or working overtime when told not to,
yet Davis was disciplined more harshly. Cf. Monarrez, 177 S.W.3d at 917
(employee did not establish disparate discipline where the comparators engaged in
less serious conduct than the discharged employee). This factor weighs in favor of
the jury’s finding of but-for causation.
6. Evidence the employer’s stated reason for termination is false
Apache argues that Davis failed to rebut two reasons for her termination: (1)
that she defied orders to stop working overtime; and (2) she refused to submit a
compliant schedule. We have held that an employee “must rebut each
nondiscriminatory reason articulated by the employer” to show but-for causation.
Kaplan v. City of Sugar Land, 525 S.W.3d 297, 308 (Tex. App.—Houston [14th
Dist.] 2017, no pet.). Moreover, simply disputing or denying that the employee
engaged in the proffered reasons for the discharge is insufficient to create a fact
issue as to causation. See id.; see also Alamo Heights, 544 S.W.3d at 792 (“Clark
denies nearly all of these performance issues, but such denials are insufficient to
create a fact issue as to causation. The issue is whether the employer’s perception
of the problems—accurate or not—was the real reason for termination.”).
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Davis argues that the reasons given for her discharge were proven untrue
because, on the overtime, Ricotta “set her up to fail by over-working her and
failing to provide her support” and on the compliant schedule issue, she requested
an accommodation which Ricotta denied though he accommodated Eldridge and
Fielder. Davis provides no record support for her argument that Ricotta set her up
to fail regarding the overtime. Regarding the schedule accommodation, the record
does not support Davis’s claim. Ricotta allowed accommodations of start-times
that were “within reason.” Ricotta told Davis he could accommodate a start time
for her of 8:30 a.m., but that her requested 9:00 a.m. was too far outside of
Apache’s normal office hours. The accommodations given to Eldridge and Fielder
were both within the 8:30 a.m. start time.
Davis also argues that evidence of pretext is found in the fact that Ricotta
proffered different reasons to Davis for her termination than those he testified to at
trial. We agree. Davis testified that Ricotta told her during the termination
meeting on January 25, 2013, that she was being fired for arriving late, working
overtime without approval, and not doing her work. Ricotta testified that he
discharged Davis because she failed to turn in a compliant schedule, worked
overtime at least twice without approval, made inappropriate comments in the
workplace, and told Bernal she no longer wished to work with Ricotta. Ricotta
expressly denied telling Davis she was being terminated for arriving late to work16
or for creating more work for other paralegals. We conclude the conflicting
evidence of the reasons given for termination is some evidence of pretext. The
jury could have believed Davis and disbelieved Ricotta regarding the reasons he
gave Davis at her termination and concluded that Apache’s reasons for the
16
Davis’s badge swipe records show that from December 2, 2012 to December 31, 2012,
Davis arrived most days between 9:00 a.m. and 10:00 a.m. and beginning in January 2013 when
the new work hours policy was to take effect, Davis arrived most days before 9:00 a.m.
35
termination thus changed over time, creating a fact issue on pretext. See Caldwell
v. KHOU-TV, 850 F.3d 237, 242–43 (5th Cir. 2017).17 This factor weighs in favor
of the jury’s finding.
While not all factors courts use to assess evidence of but-for causation
support Davis’s claim, the factors of timing, knowledge of the complaint by the
decision-maker, evidence of a negative attitude by Ricotta towards Davis after she
filed her complaint, and evidence the employer’s stated reasons for termination
changed over time support the jury’s finding. Considering all the circumstances,
we conclude that the evidence is legally and factually sufficient to support the
jury’s finding.
We overrule Apache’s second issue.
IV. There is no Casteel error.
In its third issue, Apache argues the judgment must be reversed and the case
remanded for a new trial on the basis of jury charge error under Crown Life
Insurance Co. v. Casteel, 22 S.W.3d 378 (Tex. 2000). Apache specifically
contends that Jury Question Nos. 3 and 4 contained an invalid theory of recovery
because they allowed the jury to find that Apache retaliated against Davis for filing
a claim of gender discrimination when Davis failed to exhaust her remedy on that
claim and failed to present evidence she filed a protected complaint of gender
discrimination. Apache objected to the jury charge on these grounds, thus
17
Davis proffers a number of other factors for the court to consider in assessing evidence
of but-for causation, including her claim that there were errors or untruths in Apache’s EEOC
statement, that Apache conducted a bad-faith investigation, and that Apache terminated Davis for
“stoking a rebellion” against Apache’s office hours policy. While some of these reasons may
have cast doubt on witness credibility, other reasons are not evidence of pretext for causation in
this case. See, e.g., Canchola, 121 S.W.3d at 740 (rejecting as evidence of pretext claim that
investigation was “inadequate and one-sided”). We do not address these reasons in detail
because they either do not support causation or because they would not change our analysis.
36
preserving error.
Given our conclusions above that Davis exhausted her administrative
remedy on her claim of retaliation for making a complaint of gender discrimination
and presented evidence of a protected complaint of gender discrimination, we
conclude Jury Question Nos. 3 and 4 did not contain an invalid theory of recovery.
We overrule Apache’s third issue.
V. There is sufficient evidence to support the attorneys’ fees awarded to
Davis, except for Herlong’s fees.
In its fourth issue, Apache challenges the legal and factual sufficiency of the
evidence to support the trial court’s award of $767,242 in attorneys’ fees to Davis.
Apache argues three main bases in support of its challenge: (1) the award of fees is
grossly disproportionate to the results obtained; (2) fees for one of the attorneys,
Dennis Herlong, are not substantiated by the record because the trial court awarded
fees for more hours than Herlong billed and the hours Herlong did bill are not
sufficiently detailed; and (3) the fee award was influenced by improper admission
of Apache’s attorneys’ fees. We agree with Apache regarding the award of fees to
Herlong.
A. Standards of review and applicable law
We review a trial court’s judgment awarding attorneys’ fees for an abuse of
discretion. Fort Worth Transp. Auth. v. Rodriguez, 547 S.W.3d 830, 850 (Tex.
2018). A prevailing party in a retaliation claim under the Labor Code may recover
a “reasonable attorney’s fee as part of the costs.” Tex. Lab. Code § 21.259. Courts
utilize the lodestar method when determining a reasonable fee under the statute.
See El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 760 (Tex. 2012); River Oaks L-M
Inc., 469 S.W.3d at 232.
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The lodestar method for proving attorneys’ fees requires an assessment of
the evidence of hours worked for each attorney multiplied by their respective
hourly rates to determine the total fee. See Long v. Griffin, 442 S.W.3d 253, 255
(Tex. 2014). A party using the lodestar method must offer evidence of the time
expended on particular tasks. See id. at 254–55. The evidence must be sufficiently
specific to allow the fact finder to determine the amount of time spent on each
particular task and to decide whether that length of time was reasonable. El Apple
I, 370 S.W.3d at 763. “A meaningful review of the hours claimed is particularly
important because the usual incentive to charge only reasonable attorney’s fees is
absent when fees are paid by the opposing party.” Id. at 762.
B. The total fees awarded is not grossly disproportionate.
Apache first argues the fee award is grossly disproportionate to the result
obtained because the award is five times greater than the actual damages recovered
and nineteen times more than the $40,000 in incremental value Davis obtained
from the jury as compared to the $110,000 Apache offered to settle before trial.
We conclude that the trial court acted within its broad discretion given the nature
of this particular litigation.
Although this is a single-plaintiff employment dispute, the evidence
presented to the trial court included a significant number of hours expended by
Davis’s attorneys in litigating the case for over two years. The record reveals that
both sides engaged in contentious litigation conduct. During the course of the
litigation, Davis filed nine motions to compel, deposed eleven witnesses, defended
six depositions, participated in mediation, and prepared numerous pleadings and
briefing. The parties tried the case to a jury for over two weeks. We afford
considerable deference to the trial court’s determination regarding whether
counsel’s claimed hours are excessive, redundant, or unreasonable in light of the
38
record as the trial court “possesses a superior understanding of the case and the
factual matters involved.” Id. at 763–64. The trial court witnessed the vast bulk of
the conduct engaged in by both sides and was in the best position to determine
whether the hours claimed were reasonable.
Apache also argues that the fee award in this case is complicated by Davis’s
failure to segregate her fees between the unsuccessful discrimination claim and the
successful retaliation claim. The trial court expressly found in its findings of fact
and conclusions of law that the legal work her attorneys performed on her
unsuccessful age discrimination claim advanced her successful retaliation claim
because the facts related to both claims were inextricably intertwined. We agree
with the trial court. “[T]he need to segregate attorney’s fees is a question of law,
while the extent to which certain claims can or cannot be segregated is a mixed
question of law and fact.” CA Partners v. Spears, 274 S.W.3d 51, 81 (Tex. App.—
Houston [14th Dist.] 2008, pet. denied). If discrete legal services advance both a
recoverable and unrecoverable claim such that they are inextricably intertwined,
the fees need not be segregated. Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d
299, 313–14 (Tex. 2006).
Newar testified that to prove the retaliation claim Davis had to establish a
good faith belief that age discrimination had occurred and that the two claims were
inextricably intertwined. Counsel for Apache also agreed as a general rule that “in
order to further a retaliation claim it is important to at least substantiate that there
was a good-faith basis of discrimination.” An attorney’s testimony that discrete
legal services are related to or intertwined with the claim for which fees were
permitted can support a trial court’s award of fees. See River Oaks L-M, 469
S.W.3d at 234; Sentinel Integrity Solutions, Inc. v. Mistras Group, Inc., 414
S.W.3d 911, 930 (Tex. App.—Houston [1st Dist.] 2013, pet. denied). Newar also
39
testified that he would discount the fees requested by five percent to account for
the unsuccessful claim. The trial court reduced fees for Newar by $100,375 from
the amount stated in his invoice, a reduction of just over fifteen percent. See Tony
Gullo Motors, 212 S.W.3d at 314 (noting as an example that an opinion stating that
ninety-five percent of drafting time would have been necessary even without the
unsuccessful claim would have been sufficient).
C. The evidence of Herlong’s fees is legally insufficient.
We agree with Apache that the fees awarded for Herlong’s work are not
supported by the evidence. The trial court awarded $132,750 for Herlong’s fees.
This fee represented 265.50 hours of work. Invoices of Herlong’s fees, however,
document only 163 hours of work. Herlong did testify that he incurred $132,750
in fees but did not bill all of his time. He explained that his role was to be co-
counsel to Newar, that he attended some depositions and hearings, and that he
engaged in trial preparation. His testimony did not provide any evidence of how
much time he spent on each task nor a description for the fact finder to determine
that the amount of time spent was reasonable. Herlong discussed the fee factors
generally, but “generalities about tasks performed provide insufficient information
for the fact finder to meaningfully review whether the tasks and hours were
reasonable and necessary under the lodestar method.” Long, 442 S.W.3d at 255;
Hong v. Havey, 551 S.W.3d 875, 893 (Tex. App.—Houston [14th Dist.] 2018, no
pet.). A trial court’s fee award cannot be based on evidence that fails to describe
tasks and allocate hours spent on those tasks.18 See Hong, 551 S.W.3d at 893.
Herlong’s invoice is also largely unsupportive of the request for his fees.
18
Apache does not challenge the sufficiency of the descriptions of services provided by
attorneys Gardner, Newar, or Zimmerman, and we accordingly express no opinion regarding
whether those descriptions were sufficient to support the trial court’s fee determination.
40
The majority of the descriptions on Herlong’s invoice contain very little detail
regarding the work performed, including, for example, statements of “meeting with
client and Scott Newar” or “attend Amazon hearing.” Herlong did include in his
fee statements notations of time for attending trial and attending hearings, events
and activities that both the trial court and counsel for Apache would have been able
to witness. See City of Laredo v. Montano, 414 S.W.3d 731, 737 (Tex. 2013) (per
curiam) (noting as support for amount awarded for trial attendance the fact that
opponent witnesses, at least in part, the services provided by counsel). Thus, the
trial court did have sufficient evidence to determine the reasonableness of a portion
of the fees awarded for Herlong’s time.
We conclude that there is legally insufficient evidence to support the trial
court’s total award of $767,242 in fees because it includes $132,750 for Herlong’s
time and that amount is not supported. Although we ordinarily render judgment
when we sustain a no evidence issue, when there is some evidence of damages,
though not enough to support the full amount, we may suggest a remittitur. See
Akin, Gump, Strauss, Hauer & Feld, 299 S.W.3d at 124; see also Range v. Calvary
Christian Fellowship, 530 S.W.3d 818, 840 (Tex. App.—Houston [14th Dist.]
2017, pet. denied). We do so here. Because the evidence supports fees for 124
hours of Herlong’s time documented in his invoice at the rate of $500 per hour,
resulting in fees in the amount of $62,124, but not in the amount of $132,750 as
awarded by the trial court, we suggest a remittitur of $70,626. If Davis accepts our
suggestion of remittitur, we will modify the trial court’s judgment accordingly and
affirm as modified. Otherwise, we will reverse that portion of the trial court’s
judgment awarding attorneys’ fees to Davis and remand to the trial court for a new
trial on attorneys’ fees.
41
D. Alleged improper admission of Apache’s attorneys’ fees
Apache argues that the trial court improperly admitted evidence of Apache’s
attorneys’ fees and that it influenced the trial court’s fee award. Citing In re
National Lloyds Insurance Co., Apache states evidence of an opposing party’s fees
lack genuine probative value as a comparator for a requesting party’s fees and
should not be considered by the fact finder. 532 S.W.3d 794, 812 (Tex. 2017)
(orig. proceeding); see also Range, 530 S.W.3d at 840 (noting “evidence of one
side’s reasonable and necessary attorneys’ fees is not evidence of the opposing
side’s reasonable attorneys’ fees”). Apache accurately sets forth the rule stated in
In re National Lloyds, but we find no evidence in the record that the trial court in
fact relied on Apache’s fees in making its award. The findings of fact and
conclusions of law make no reference to Apache’s fees, nor do we find evidence in
the record of the trial court mentioning Apache’s fees as a basis for its ruling. As
discussed above, the trial court had sufficient evidence to support its award of fees
from invoices and testimony provided by Newar and Herlong, with the exception
of portions of Herlong’s fees. As a result, we conclude that Apache has not
established the trial court was improperly influenced by the admission of evidence
of Apache’s attorneys’ fees.
We sustain in part and overrule in part Apache’s fourth issue.
CONCLUSION
Having overruled Apache’s four issues on appeal in whole or in part, we
affirm in part and reverse in part the trial court’s judgment. With regard to the
award of attorneys’ fees, we suggest a remittitur in the amount of $70,626. If
Davis accepts the suggestion of remittitur by filing a remittitur within twenty days
from the date of this opinion, we will modify the trial court’s judgment accordingly
and affirm the judgment as modified. If Davis does not accept our suggestion of
42
remittitur, we will reverse the trial court’s judgment in part and remand for a new
trial on attorneys’ fees. We affirm the remainder of the trial court’s judgment.
/s/ Ken Wise
Justice
Panel consists of Justices Christopher, Wise, and Hassan.
43