Williams-Pyro, Inc. v. Rhonda Barbour , 408 S.W.3d 467 ( 2013 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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WILLIAMS-PYRO, INC., No. 08-11-00355-CV
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Appellant and Cross-Appellee, Appeal from
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v. 153rd District Court
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RHONDA BARBOUR, of Tarrant County, Texas
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Appellee and Cross-Appellant. (TC # 153-223671-07)
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OPINION
Rhonda Barbour sued her former employer Williams-Pyro, Inc. (WPI) for age
discrimination under the Texas Commission on Human Rights Act. A jury found in favor of
Barbour and awarded her $40,000 in damages for back pay, $10,000 in lost employment
benefits, $100,000 in past compensatory damages, and $100,000 in future compensatory
damages. The trial court determined that the statutory caps required under Texas Labor Code
Section 21.2585(d)(1) should be applied to the jury’s award of damages and rendered judgment
for Barbour in the amount of $120,714, exclusive of attorney’s fees and costs. Based on a prior
agreement between the parties, the trial court then addressed Barbour’s claim for attorney’s fees.
In her claim for attorney’s fees, Barbour asked the court to apply a multiplier to enhance her fee
award. After the hearing, the trial court determined that Barbour was entitled to attorney’s fees
in the amount of $154,335, but concluded that it did not possess the authority under Section
21.259 of the Texas Labor Code to apply a multiplier. The court specifically ruled that if did
have such authority, a 1.5 multiplier was appropriate.
WPI then filed the instant appeal. It challenges the trial court’s judgment, complaining
that: (1) the evidence is legally and factually insufficient to support the jury’s verdict that age
was a motivating factor in WPI’s decision to terminate Barbour, and (2) that the trial court
lacked subject-matter jurisdiction over Barbour’s discrimination case because she failed to fully
exhaust her administrative remedies before filing suit. Barbour also appeals, contending that the
trial court erred by not applying a multiplier to her attorney’s fee award. For the reasons that
follow, we affirm the judgment in its entirety.
FACTUAL SUMMARY
WPI develops and manufactures products for various industries involved in oil and gas
development, fire suppression, aeronautics, and national defense. In 1988, Bob Williams hired
twenty-six year old Rhonda Barbour to work at WPI. Mr. Williams was the co-founder of WPI
and, at the time he hired Barbour, he was also WPI’s president and CEO. When Mr. Williams
hired Barbour he was looking to expand WPI’s business to include a new line of fire
extinguishers or fire suppression devices. He personally trained Barbour to assemble the
products on the new fire extinguisher/suppression line. More specifically, Mr. Williams taught
Barbour to assemble the “charge caps” for WPI’s fire-suppression product known as the
“StoveTop FireStop.” The assembly of the charge caps involved the use of a dangerous and
explosive chemical called lead styphnate. The government considers lead styphnate to be an
explosive and therefore heavily regulates its use. Accordingly, because of the dangers involved,
the charge caps were assembled in a specific room, separated from the rest of WPI’s business.
Dealing with these explosives also required Barbour to possess a special set of skills.
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About a year after Barbour was hired, WPI established a specific assembly line for the
sole purpose of manufacturing the fire suppression devices. The line was referred to as the “pyro
line.” Barbour was the supervisor of the pyro-line and she was responsible for training the new
employees.1
In 1996, Mr. Williams passed away and his wife, Della Williams, took over as President
and CEO of WPI.2 According to Mrs. Williams, handling the lead styphnate was the most
dangerous aspect of WPI’s operation. She also acknowledged that the very existence of the pyro
line depended upon Barbour building the charge caps.
Barbour continued her work assembling charge caps for the fire suppression devices for
her first seventeen years as a WPI employee. James Craig Walters supervised Barbour from
1998 to 2004. He testified that Barbour:
[C]could use some improvement because she is quick to talk about people behind
their back and stir up criticism pools with other employees. I addressed this
problem with her and she said it was from being frustrated but in the end she
agreed to stop.
According to Walters, on Barbour’s 2003 work performance review he specifically noted that
there were improvements he wanted to see. Barbour was good at “repetitive tasks,” but that she
was not good at tasks that involved change. Although Walters did not recall ever giving Barbour
a written warning, he testified that he spoke with her on several occasions regarding her
behavior. He considered these discussions oral reprimands or warnings.
In 2005, the company completed development on a safer alternative to the charge caps,
which did not involve the use of explosives. This new design no longer required Barbour’s
1
Sally Espinoza was also a supervisor on the pyro line. Espinosa testified that Barbour was a good employee and a
hard worker. She also testified that Barbour was easy to get along with and that she never observed any combative
behavior by Barbour.
2
At the time Mrs. Williams took over control and ownership of the company WPI had nine employees. By the time
of trial (May 2011), WPI employed ninety-nine employees.
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specialized skills, nor did it require the assembly to occur in an isolated environment. According
to Mrs. Williams, as the new design was implemented, the old method of using lead styphnate
was phased out. Likewise, Barbour’s position was effectively phased out.
Barbour was then re-assigned to the “connectivity and test systems” (CaTS) assembly
line.3 The CaTS assembly area included both mechanical and electrical assembly. Although
Barbour had previously spent the majority of her time working on the pyro assembly line, she
had worked on both the electrical and mechanical assembly lines from time to time as needed.
Employees in the CaTS assembly area each had work orders, or written instructions, at
their work stations describing the device(s) being assembled. Once a work order was complete,
it was reviewed by the WPI Quality Assurance Department. The Quality Assurance Department
would check each work order and return any orders containing errors.
Tammy Renteria, a CaTS assembly leader, testified that an assembly leader also had a
duty to go from station to station along the CaTS assembly line, double-check each assembler’s
work, and see whether the assemblers had any questions or otherwise needed work orders or
parts for assembly.
When Barbour began working on the CaTS assembly line, her supervisor was Stacy
Chapa. Chapa supervised Barbour from June 2005 to December 2005, during which Barbour
received two positive performance evaluations. The first performance evaluation was signed by
Paul Shiller, WPI’s Operations Manager, and gave Barbour a “good” rating. The second
performance evaluation, signed by Vice President Brent Williams, included the following
comments regarding Barbour’s performance: (1) “tracks and completes assigned work
independently after initial instructions and feedback;” (2) “positive and supportive of the
3
At the time she was re-assigned in 2005, Barbour was 42 years old.
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company’s mission;” (3) “knows the status of tasks the standards for accuracy and quantity;” (4)
“exhibits patience with customers/co-workers;” (5) “maintains courteous and cooperative
relationships with supervisor and co-workers;” and (6) “accepts supervision, change and
feedback.” Based on this evaluation, Barbour received a pay raise. Chapa testified that as of
December 2005, she had worked with Barbour for seventeen years and never had any problems
with her.
Jose “Joe” Montalvo began working at WPI in 2004 as a Quality Inspector. He was later
promoted to supervisor of the Quality Inspection area (or Quality Assurance Department). At
the time Barbour was reassigned to the CaTS assembly line in 2005, Montalvo was the
supervisor in charge of the quality inspection area. In April or May 2006, Montalvo became the
production manager for the CaTS assembly area.4 As production manager, Montalvo also
became Barbour’s direct supervisor.
According to Barbour, in 2005 Montalvo began making age-related comments to her. He
made comments about her gray hair and told her that she was getting old and looking old. He
also suggested that she color her hair, stating that if she were his wife, she would not look like
she did. On occasions when she was in the inventory room and would have to bend over,
Montalvo would tell her that her butt was getting big and that she was looking old. Montalvo
eventually mentioned replacing Barbour with “young Mexican girls.” Barbour said these
comments were made three or four times a week. She also testified that Montalvo’s tone was
serious and that his comments made her scared and sick.
Once Montalvo became her direct supervisor on the CaTS assembly line, he continued to
make comments about her age. At that point, Barbour decided to report the comments to Paul
4
This was the first time Montalvo had been Barbour’s supervisor.
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Shiller, the Operations Manager. According to Barbour, in May or June 2006, she reported
Montalvo’s behavior to Shiller. She told Shiller, in detail, about all of Montalvo’s age-related
comments. Montalvo admitted making some comments related to the color of Barbour’s hair but
said he was only joking.
Shiller acknowledged that Barbour came to him regarding Montalvo’s comments but she
mentioned them casually and never described them with any specificity. Shiller questioned
Montalvo about the comments, but that conversation was the end of the matter. Shiller
acknowledged that under WPI’s policy, a complaint of discrimination should have been reported
to Human Resources for investigation. But admittedly, he never reported the comments to
Human Resources and the claim was not investigated. Sally Espinosa, a former supervisor at
WPI, testified that she heard Montalvo tell Barbour that she was getting too old and fat and that
WPI needed to hire younger girls. Martha Thomas, a CaTS assembly line worker, also testified
regarding Montalvo’s behavior. According to Thomas, things changed when Montalvo became
supervisor of the CaTS assembly line. She believed Montalvo was trying to get her to resign,
which she did in 2008.
Mr. Walters, Barbour’s supervisor from 1998 to 2004, testified that he observed Barbour
interacting with Montalvo but he never heard Montalvo make derogatory comments toward
Barbour.
Mrs. Williams, owner of WPI, testified that she was never informed about Barbour’s
complaints regarding Montalvo. She found the comments offensive and they should have been
reported to the Human Resources Department. According to her, even jokes about age should be
reported to Human Resources. On November 15, 2006, WPI terminated Barbour’s employment.
The only people in the room were Montalvo, Shiller, and Candace Woodard from Human
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Resources. Montalvo did all the talking. Barbour was not given a reason for her termination.
Barbour asked to speak to Mrs. Williams or her son, Brent Williams, but was told by Montalvo
that they “had already been informed.” Montalvo admitted that he never gave Barbour a written
reprimand prior to terminating her. He also admitted that he generally gives an employee an oral
warning and a written reprimand before terminating that employee, and that he had given other
employees written warnings if they had done something “really wrong.” According to
Montalvo, he had orally reprimanded Barbour at some point, but Barbour testified that she never
received a verbal warning while for WPI. No written reprimands appear in Barbour’s file.
PROCEDURAL HISTORY
On December 13, 2006, Barbour filed an administrative complaint with the Texas
Workforce Commission (TWC) alleging age discrimination as the reason for her termination.
TWC forwarded Barbour’s complaint to WPI on December 22, 2006. After investigating
Barbour’s discrimination claims, the TWC issued a Dismissal and Notice of Right to File a Civil
Action.
After her termination, Barbour also applied for unemployment benefits with the TWC.
In January 2007, a telephone hearing was conducted. Montalvo and Human Resources
representative Candace Woodard participated in the telephone hearing on behalf of WPI.
Montalvo stated that Barbour was terminated because of errors on a contact socket order and a
knob order and her scheduling of time on the knob order. This was the first time Barbour had
heard a reason for her termination. According to Barbour, she was never made aware of any
errors with the contact sockets order prior to her termination, or at any time prior to the TWC
hearing. Barbour also testified that she did not make the errors on either the contact socket order
or the chalk knobs work order.
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Valerie Dorsette was Barbour’s co-worker in the CaTS assembly area. Barbour testified
that Dorsette was the assembler on the knob work order and Barbour was only a helper. The
“assembler” on the work order is responsible for confirming that the correct parts have been
provided and for completing the work order. According to Barbour, she had asked Dorsette
whether she confirmed that the knob order was correct, and Dorsette stated that she had.
On April 23, 2007, Barbour filed the instant suit alleging age discrimination. The case
was tried to a jury. The charge instructed the jury to answer three questions. Question 1 asked:
Was age a motivating factor in Williams-Pyro, Inc.’s decision to discharge
Rhonda Barbour?
A ‘motivating factor’ in an employment decision is a reason for making the
decision at the time it was made. There may be more than one motivating factor
for an employment decision.
Answer ‘Yes’ or ‘No’
The jury answered “yes.” Because the jury answered yes to Question 1, the jury was then
instructed to answer Question 2:
Would Williams-Pyro, Inc. have taken the same action inquired about in Question
1 when it did, in the absence of the impermissible motivating factor, if any?
Answer ‘Yes’ or ‘No’
The jury answered “No.” Finally, the jury was asked to award damages based on their liability
determination. In response to Question 3, the jury awarded Barbour $40,000 in damages for
back pay, $10,000 in lost employment benefits, $100,000 in past compensatory damages, and
$100,000 in future compensatory damages. After the jury rendered its verdict, WPI filed a post-
trial plea to the jurisdiction and a motion to dismiss. Barbour also filed a post-trial motion for
attorney’s fees. On July 19, 2011, the trial court held a hearing. The next day, it signed an order
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denying WPI’s plea to the jurisdiction. That same day it also signed its final judgment. The
judgment stated in relevant part:
[A] jury, having been empaneled and sworn to try this cause, and after hearing the
pleadings, evidence, and argument of counsel, and after the trial court read the
Charge of the Court to the jury, the jury did return into open court its verdict, duly
signed by ten jurors, and in response to special issues, definitions and explanatory
instructions submitted to them by the Court in its Charge, which findings as
verdict of the jury were received by the Court and entered into the record and
minutes of the docket of said Court, and the Court heard arguments and evidence
regarding attorneys fees. The Court does hereby enter its Judgment as follows:
1. Plaintiff Barbour is hereby entitled to recover damages from the Defendant
Williams-Pyro, Inc., in the sum of One Hundred and Twenty Thousand and Seven
Hundred Fourteen Dollars and Forty Cents ($120,714.40), which includes. pre-
judgment interest that accrued on the award of past compensatory damages of
Fifty Thousand Dollars ($50,000.00), and past lost wages awarded by the Court in
the amount of Forty Thousand Dollars, ($40,000.00) and past employment
benefits in the amount of Ten Thousand Dollars ($10,000.00) at the rate of Five
percent (5%) per annum, simple interest. Such interest accrued from April 23,
2007, the date on which suit was filed in this cause through June 13, 2011.
2. The Court finds that counsel for the Plaintiff, Jason C.N. Smith and Zoe
Courtney, have reputations for providing highly competent, ethical, and qualified
legal representation of individuals in employment matters such as this case and
that Plaintiff is entitled to recover her reasonable and necessary attorney fees.
The Court awards reasonable and necessary attorney’s fees and orders Defendant
to pay Plaintiff the amount of One Hundred Fifty-Four Thousand Three Hundred
Thirty-Five Dollars ($154,335.00) in attorneys fees through trial, Thirty Thousand
Dollars ($30,000.00) for any appeal to the Court of Appeals in which she prevails,
Twelve Thousand Dollars ($12,000.00) for any Petition filed with the Texas
Supreme Court in which she prevails and Thirty Thousand Dollars ($30,000.00) if
the Texas Supreme Court requests full briefing in which she prevails.
On August 29, 2011, the trial court filed two separate sets of findings of fact and
conclusions of law. One related to its decision denying WPI’s plea to the jurisdiction and motion
to dismiss and the other related to Barbour’s motion for attorney’s fees. WPI then filed a Motion
for Judgment Notwithstanding the Verdict and Alternative Motion for New Trial. On September
26, 2011, the trial court held a hearing to address both motions and on October 19, 2011, the trial
court issued an order denying them in their entirety.
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WPI’s APPEAL
WPI challenges both the factual and legal sufficiency of the evidence to support the
jury’s finding that Barbour’s age was a motivating factor in WPI’s decision to terminate her
employment. It also contends that the court lacks subject matter jurisdiction to hear this case
because Barbour failed to exhaust her administrative remedies before filing suit in district court.
We will begin by addressing WPI’s jurisdictional argument.
Subject Matter Jurisdiction
In Issue Three, WPI argues that Barbour failed to properly exhaust her administrative
remedies before filing the instant suit, thereby depriving the trial court and by extension this
court of subject matter jurisdiction. Under Texas law, the exhaustion of administrative remedies
is a mandatory prerequisite to filing an action under TCHRA, and the failure to exhaust
TCHRA’s administrative remedies deprives the court of subject matter jurisdiction. See
Hoffmann–La Roche, Inc., v. Zeltwanger, 144 S.W.3d 438, 446 (Tex. 2004); City of Waco v.
Lopez, 259 S.W.3d 147, 149, 154 (Tex. 2008). Under TCHRA, the exhaustion of administrative
remedies begins when a party files a charge of discrimination with the Texas Workforce
Commission. See TEX.LAB.CODE ANN. § 21.201 (West 2006); Waffle House, Inc. v. Williams,
313 S.W.3d 796, 804 (Tex. 2010).
Courts construe complaints filed under TCHRA liberally and “look slightly beyond [the]
four corners, to [the] substance rather than [the] label.” Pacheco v. Mineta, 448 F.3d 783, 789
(5th Cir. 2006). That said, the charge must contain a sufficient factual basis to put the employer
on notice of the existence and nature of the charges. Bartosh, 259 S.W.3d at 321, citing Preston
v. Texas Department of Family & Protective Services, 222 F. Appx 353, 356 (5th Cir. 2007)(per
curiam). “The crucial element of a charge of discrimination is the factual statement contained in
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the administrative complaint.” Bartosh v. Sam Houston State University, 259 S.W.3d 317, 321
(Tex.App.--Texarkana 2008, pet. denied), quoting Preston, 222 Fed. Appx. at 356 (internal
quotations omitted). The scope of a suit under TCHRA is limited to the scope of the
investigation that “can reasonably be expected to grow out of the charge of discrimination.”
Pacheco, 448 F.3d at 789, quoting Sanchez v. Standard Brands, Inc., 431 F.2d 455, 463 (5th Cir.
1970)(internal quotations omitted); Bartosh, 259 S.W.3d at 321. If, by looking to either the
factual allegations or the checked boxes, a specific type of discrimination claim could reasonably
be expected to grow out of the allegations in an EEOC charge, then the plaintiff has exhausted
her administrative remedies. See Briggs v. DART Regional Rail Right of Way Co., 2005 WL
3133505 (Nov. 23, 2005 N.D.Tex.). Therefore, Barbour’s claims in the instant suit may only
include those claims stated in her administrative complaint, and factually related claims that
could reasonably be expected to fall within the agency’s investigation of the claims stated in the
charge. Fine v. GAF Chem. Corp., 995 F.2d 576, 578 (5th Cir.1993); University of Texas v.
Poindexter, 306 S.W.3d 798, 810 (Tex.App.--Austin 2009, no pet.); Thomas v. Clayton Williams
Energy, Inc., 2 S.W.3d 734, 738 (Tex.App.--Houston [14th Dist.] 1999, no pet.).
Barbour filed an EEOC claim in December 2006. On her sworn charge of discrimination,
Barbour marked the box for “age” as the type of discrimination alleged. EEOC Form 5
requested the following information: (1) personal harm; (2) reason for adverse action; and (3)
discrimination statement. Barbour completed the “personal harm” section with the following
statement: “I was terminated from my job on 11/15/06.” She also stated on the form that she
was told by WPI that they did not need a reason to terminate her. Finally, as her “discrimination
statement,” Barbour stated that she “believed [she] was terminated because of her age, 44 years
old, in violation of Texas Labor Code, Chapter 21.”
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After denying WPI’s plea to the jurisdiction, the trial court issued findings of fact and
conclusions of law which stated in relevant part:
21. On February 26, 2007, Rhonda Barbour provided additional information to
the Texas Workforce Commission regarding her years of service at Williams-
Pyro, Inc. and her excellent work record.
22. Plaintiff did not allege a hostile work environment claim based on age in her
sworn charge of discrimination.
23. Rhonda Barbour received a Notice of Right to File a Civil Action on
February 27,2007.
On appeal, we must determine whether the allegations in Barbour’s original charge
and/or her subsequent amendment could reasonably give rise to an investigation of her claims of
discrimination based on age. See Pacheco, 448 F.3d at 789; Poindexter, 306 S.W.3d at 810;
Clayton Williams Energy, 2 S.W.3d at 738. As Barbour’s attorney’s pointed out during the plea
to the jurisdiction hearing, a plaintiff does not have to put down every piece of information that
she will eventually use at trial on the EEOC form to sufficiently exhaust administrative remedies
under the statute. Here, Barbour’s EEOC claim alleged sufficient information to put WPI on
notice of her age discrimination claim. We conclude that Barbour exhausted her administrative
remedies and overrule Issue Three.
Sufficiency of the Evidence
In Issue One, WPI complains that the evidence is legally insufficient to prove that age
was a motivating factor in WPI’s decision to terminate Barbour because there is no evidence
that: (1) WPI treated Barbour less favorably than similarly situated WPI employees of the
opposing class; and (2) WPI’s proffered reasons for terminating Barbour were pretext for
discrimination. Appellant also contends that, “Montalvo’s alleged workplace remarks are not
evidence of pretext or that WPI terminated Barbour because of her age.” Alternatively, in Issue
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Two, WPI argues that evidence is factually insufficient to support the finding that Barbour’s age
was a motivating factor in WPI’s decision to terminate Barbour’s employment.
In conducting a legal sufficiency review, we view all evidence in a light most favorable
to the prevailing party, indulging every reasonable inference in favor of the judgment. Bradford
v. Vento, 48 S.W.3d 749, 754 (Tex. 2001). However, if the evidence allows for only one
inference, neither the jurors nor a reviewing court may disregard it. City of Keller v. Wilson, 168
S.W.3d 802, 810 (Tex. 2005); Contreras v. Bennett, 361 S.W.3d 174, 179 (Tex.App.--El Paso
2011, no pet.)(noting same standards). So long as more than a scintilla of evidence supports the
finding below, we will uphold it and the legal sufficiency challenge will fail. Wal-Mart Stores,
Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex. 2003); Burroughs Wellcome Co. v. Crye, 907
S.W.2d 497, 499 (Tex. 1995). Additionally, we must remember that the jurors are the sole
judges of the weight and credibility of witness testimony, and if the evidence at trial would allow
reasonable, fair-minded jurors to differ in their conclusions, then a reviewing court must allow
jurors to do so. City of Keller, 168 S.W.3d at 810; El Paso Independent School District v.
Pabon, 214 S.W.3d 37, 41 (Tex.App.--El Paso 2006, no pet.). Accordingly, so long as evidence
falls within the zone of reasonable disagreement, a reviewing court cannot substitute its own
judgment for that of the trier of fact. City of Keller, 168 S.W.3d at 819; Pabon, 214 S.W.3d at
41.
In a factual sufficiency review, we examine all the evidence in the record, both for and
against the lower court’s findings. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); Newberry
v. Newberry, 351 S.W.3d 552, 555-56 (Tex.App.--El Paso 2011, no pet.). We must consider and
weigh all such evidence in a neutral light. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d
757, 761 (Tex. 2003). We will reverse only if we conclude “that the verdict is so against the
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great weight and preponderance of the evidence as to be manifestly unjust--this, regardless of
whether the record contains some evidence of probative force in support of the verdict.” Id.
Barbour sued WPI under the Texas Commission on Human Rights Act (TCHRA) See
TEX.LAB.CODE ANN. § 21.051. An employer is prohibited from discharging, or in any other way
discriminating against, an employee because of the employee’s age.5 See TEX.LAB.CODE ANN. §
21.051; Canchola, 121 S.W.3d at 739. One of the purposes of TCHRA is to “provide for the
execution of the policies of Title VII of the Civil Rights Act of 1964.” TEX.LAB.CODE ANN. §
21.001(1). In interpreting TCHRA, the Texas Supreme Court has consistently looked to
analogous federal statutes and the cases interpreting them for guidance. See Mission
Consolidated Independent School District v. Garcia, 372 S.W.3d 629, 633-34 (Tex. 2012), citing
Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 476 (Tex. 2001) and NME Hosps., Inc. v.
Rennels, 994 S.W.2d 142, 144 (Tex. 1999).
Texas courts follow the approach set forth by the United States Supreme Court and
recognize two alternative methods of proof in discriminatory treatment cases. Mission Consol.
372 S.W.3d at 634, citing Quantum Chem., 47 S.W.3d at 476. Under the first method, a plaintiff
proves discriminatory intent via direct evidence. Mission Consol., 372 S.W.3d at 634. “Direct
evidence is evidence that, if believed, proves the fact of discriminatory animus without inference
5
In its entirety, Section 21.051, titled, “Discrimination by Employer” states:
An employer commits an unlawful employment practice if because of race, color, disability,
religion, sex, national origin, or age the employer:
(1) fails or refuses to hire an individual, discharges an individual, or discriminates in any other
manner against an individual in connection with compensation or the terms, conditions, or
privileges of employment; or
(2) limits, segregates, or classifies an employee or applicant for employment in a manner that
would deprive or tend to deprive an individual of any employment opportunity or adversely affect
in any other manner the status of an employee.
TEX.LAB.CODE ANN. § 21.051.
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or presumption.” Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir. 2002).
However, it is often difficult to prove “forbidden animus” through direct evidence. See Mission
Consol., 372 S.W.3d at 634 (recognizing that: “motives are often more covert than overt, making
direct evidence of forbidden animus hard to come by”) and U.S. Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 716, 103 S. Ct. 1478, 75 L. Ed. 2d 403 (1983)(noting that there
will seldom be an eyewitness who can testify as to the employer’s mental processes and
therefore recognizing the difficultly in using direct evidence to prove the “state of a man’s mind
at a particular time”). In order to ease the burden on discrimination plaintiffs, the court created a
second method of proof. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817,
36 L. Ed. 2d 668 (1973); Mission Consol., 372 S.W.3d at 634. Accordingly, when there is no
direct evidence of discriminatory intent, discrimination can be shown indirectly through a
burden-shifting method of proof. See McDonnell Douglas Corp., 411 U.S. at 801-03; 93 S.Ct. at
1820; Mission Consol., 372 S.W.3d at 634. Under this second method, the plaintiff must first
make a prima facie case showing that the plaintiff: (1) was discharged; (2) was qualified for the
position from which she was discharged; (3) is a member of a protected class; and (4) was either
replaced by someone outside the protected class, replaced by someone younger, or was otherwise
discharged because of her age. McDonnell Douglas Corp., 411 U.S. at 801-03, 93 S.Ct. at 1820.
So long as a plaintiff meets the “minimal” initial burden of establishing a prima facie case of
discrimination, she is entitled to a presumption of discrimination (the “McDonnell Douglas
presumption”). Mission Consol., 372 S.W.3d at 634, citing Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 254, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981) and Canchola, 121
S.W.3d at 739. “Although the precise elements of this showing will vary depending on the
circumstances, the plaintiff’s burden at this stage of the case is not onerous.” Mission Consol.,
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372 S.W.3d at 634, quoting Burdine, 450 U.S. at 253, 101 S. Ct. 1089 (internal quotations
omitted). Once the plaintiff makes a prima facie showing, the burden shifts to the defendant to
demonstrate a legitimate nondiscriminatory purpose for the employment action. McDonnell
Douglas Corp., 411 U.S. at 802-03, 93 S. Ct. 1824. If the defendant meets this burden, then the
plaintiff must prove that the employer’s stated reason for the adverse action was merely pretext
for the real, discriminatory purpose. Id. However, where, as here, the case has been fully tried
on the merits, we do not engage in the burden-shifting analysis. Canchola, 121 S.W.3d at 739;
Claymex Brick and Tile, Inc. v. Garza, 216 S.W.3d 33, 36 (Tex.App.--San Antonio 2006, no
pet.). “Instead, the evaluation process is streamlined and we proceed directly to whether the
plaintiff presented enough evidence for a jury to find that discrimination occurred.” Claymex
Brick and Tile, Inc., 216 S.W.3d at 36, citing Cachola, 121 S.W.3d at 739; see also City of
Austin Police Department v. Brown, 96 S.W.3d 588, 596 (Tex.App.--Austin 2002, pet.
dism’d)(noting that “an affirmative finding will be reviewed on appeal on the basis of whether
the plaintiff produced sufficient evidence for the jury to find discrimination had occurred.”).
Therefore, in addressing WPI’s first two issues, our inquiry is limited to whether the evidence is
legally and/or factually sufficient to support the jury’s finding that age was a motivating factor in
WPI’s decision to terminate Barbour.6 See Canchola, 121 S.W.3d at 739.
A significant portion of WPI’s argument is dedicated to the assertion that Barbour
presented no evidence regarding the treatment of similarly situated employees. It thus contends
that Barbour failed to establish the fourth element of a prima facie case of discrimination. In
support of this argument, WPI relies heavily on the Supreme Court’s opinion in AutoZone, Inc. v.
Reyes, 272 S.W.3d 588 (Tex. 2008)(per curiam).
6
At trial, Barbour bore the burden of establishing discriminatory intent. Canchola, 121 S.W.3d at 739. In other
words, it was Barbour’s burden to prove that her age was a motivating factor in WPI’s decision to terminate her.
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In AutoZone, Salvador Reyes sued his employer, alleging he was fired because of his age
in violation of TCHRA. AutoZone, 272 S.W.3d at 590. Reyes was sixty-two years old when his
employment was terminated. Id. His employer responded alleging that Reyes was fired for
sexually harassing a female coworker. Id. A jury found in favor of Reyes and the Corpus Christi
Court of Appeals affirmed. Id.; see AutoZone, Inc. v. Reyes, 272 S.W.3d 644, 648 (Tex.App.--
Corpus Christi 2006), rev’d, 272 S.W.3d 588 (Tex. 2008)(per curiam). The Texas Supreme
Court agreed with the employer that the evidence supporting the finding that age was a
motivating factor in Reyes’s discharge was legally insufficient and reversed the Court of
Appeals. AutoZone, 272 S.W.3d at 591. WPI focuses on the Supreme Court’s holding in
AutoZone that the evidence failed to establish that the employer subjected the plaintiff to
disparate discipline and “discriminated against [him] by treating him less favorably than
similarly-situated younger employees” who violated the company’s sexual harassment policy.
AutoZone, 272 S.W.3d at 593-95. However, this was just a small portion of the Supreme Court’s
decision. WPI ignores the fact that under the very standard used in AutoZone, Barbour presented
sufficient direct evidence of discriminatory animus.
The court’s analysis in AutoZone began by discussing whether remarks made by a store
manager constituted evidence of discrimination. Id. at 593-94. The employer argued that
statements made to a parts service manager by a store manager that the employer intended to get
rid of “the old people” were “stray remarks” made by an individual who was not part of and had
no input into the decision to fire Reyes. Id. at 592. The Supreme Court specifically
acknowledged that “remarks and statements may serve as evidence of discrimination,” if they
are: (1) related to the employee’s protected class, (2) close in time to the employment decision,
(3) made by an individual with authority over the employment decision, and (4) related to the
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employment decision at issue. [Emphasis added]. Id. at 593. The court concluded that the
evidence showed the store manager played no part in, had no leverage over, and exerted no
influence concerning the employer’s investigation or decision to fire the plaintiff.7 Id. The
Supreme Court also determined that no person involved in the investigation or subsequent
termination decision ever spoke to or took a statement from the store manager, that the store
manager “did not work in the store where the sexual harassment allegedly occurred,” that the
store manager had no authority over the plaintiff until the plaintiff was transferred to the
manager’s store while the harassment allegation was being investigated, and that the store
manager testified at the trial that he had no involvement in the investigation or termination
decision. Id. With respect to the store manager’s “get rid of ‘the old people’” statements, the
Supreme Court found no evidence that the manager represented the employer’s motive or intent.8
Id. at 592.
The instant case is distinguishable. There was testimony that Montalvo made comments
to Barbour that she was getting “old,” about her having “gray hair,” and about her “sagging
breasts,” and such comments were clearly related to Barbour’s age, and because Barbour was
over forty, they were related to her “protected class.” Barbour also testified that Montalvo made
these comments “nonstop,” “three or four times a week” and “all the time,” up until her
termination. Since Barbour’s alleged adverse employment action was her termination, these
comments were certainly made in “proximate time to the adverse employment decision.” In
addition, Barbour testified that Montalvo made comments that the company “need[ed] to hire
7
The termination decision was made by a regional manager on the basis of a recommendation made by a company
employee relations specialist who had reviewed written statements obtained from the plaintiff, the coworker that
was allegedly harassed by the plaintiff, and other employees. AutoZone, 272 S.W.3d at 591.
8
The court also noted that at trial the store manager (who no longer worked for the employer) testified that he was
only communicating his personal opinion that the employer was attempting to remove long-time managers who
were not following the employer’s policies. AutoZone, 272 S.W.3d at 592-93.
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young Mexican girls.” Montalvo’s comments regarding Barbour’s age and the need for “young
Mexican girls” is “related to the employment decision at issue.” Therefore, the only remaining
question is whether Montalvo was an individual with authority over the employment decision at
issue - i.e. Barbour’s termination. AutoZone, 272 S.W.3d at 593; Burton v. Carter Bloodcare,
2012 WL 42899, *7 (Tex.App.--Fort Worth Jan. 5, 2012, no pet.). In contrast to AutoZone, there
is sufficient evidence in this case to show that Montalvo possessed leverage over, and exerted
influence over, WPI’s decision to terminate Barbour.
“In determining whether the individual making the remark had authority over the
employment decision, consideration is not limited to statements by the person who officially
made the decision.” AutoZone, 272 S.W.3d at 593, citing Arismendez v. Nightingale Home
Health Care, Inc., 493 F.3d 602, 608 (5th Cir. 2007) and Russell v. McKinney Hosp. Venture,
235 F.3d 219, 226-27 (5th Cir. 2000). Even if the person who made the comments is not the
decision maker, if the evidence shows that person possessed leverage or exerted influence over
the decision-maker, then the discriminatory animus may be imputed to an employer. AutoZone,
272 S.W.3d at 593, citing Russell, 235 F.3d at 226-27.
It is undisputed that Montalvo was WPI’s production manager and that as such, he was
responsible for personnel issues. Montalvo, Paul Shiller, and Candace Woodard were the only
people present when Barbour was terminated. Montalvo was the only one who spoke and the
one who actually informed Barbour she was fired.
There is also sufficient evidence showing that even if Montalvo was not directly
responsible for the decision to terminate Barbour, he influenced the decision. WPI points to
testimony that Della Williams was the one who made the decision to terminate Barbour, and that
since Mrs. Williams was unaware of any comments made by Montalvo, there is no evidence of
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discriminatory intent. But Montalvo himself testified that Mrs. Williams was not involved in the
decision to terminate Barbour. The jury was free to disbelieve the testimony that Mrs. Williams
alone made the termination decision.
Therefore, while a lack of evidence regarding the treatment of similarly situated
employees could prevent Barbour from enjoying the benefit of the prima facie presumption, it
does not preclude the possibility that Barbour presented sufficient direct evidence to show that
age was a motivating factor in WPI’s decision to terminate her. We find that Barbour presented
such direct evidence of discriminatory intent via Montalvo’s comments.9
Here, WPI asserted it Barbour was terminated for multiple reasons. First, WPI points to
evidence that it fired Barbour based on two complaints from Barbour’s “Line Lead,” Tammy
Renteria, that Barbour failed to follow written work orders. In addition, WPI points to the
testimony of Della Williams wherein Ms. Williams stated that Barbour (1) had “missed a lot of
work”; and (2) “had had a lot of conflict with a lot of different employees in the organization.”
However, all of the testimony supporting these contentions was directly contested by Barbour.
As the judges of witness credibility and demeanor, the jury was free to believe or disbelieve the
testimony.
We conclude that the evidence presented would allow a reasonable and fair-minded jury
to find that Barbour’s age was a motivating factor in WPI’s decision to terminate her. Likewise,
the jury’s finding cannot be said to be so against the great weight of the evidence as to be clearly
wrong or unjust. Issues One and Two are overruled.
9
We acknowledge that the fact Barbour presented direct evidence of discriminatory intent did not automatically
require a verdict in her favor. “[T]he existence of direct evidence only shifted the burdens of production and
persuasion to [WPI] to show that it would have made the same employment decision regardless of [Barbour’s] age.”
See Brown, 96 S.W.3d at 599 n.5, citing Price Waterhouse v. Hopkins, 490 U.S. 228, 244-45, 109 S. Ct. 1775, 104
L. Ed. 2d 268 (1989). Based on the jury’s verdict, they failed to find that WPI would have done so.
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BARBOUR’S CROSS APPEAL
We now turn to Barbour’s cross-appeal. In a single issue, Barbour argues that the trial
court erred by concluding that it lacked authority to enhance the amount of attorney’s fees
awarded to Barbour.
The parties agreed (pretrial) that, whatever the outcome, the trial court would determine
the attorney’s fee award. After the jury returned its verdict in favor of Barbour, Barbour filed a
Motion for Attorney’s Fees. In her motion, Barbour requested that the trial court award
attorneys’ fees through trial and post-verdict proceedings, as well as appellate attorney fees.
Barbour also requested an enhancement of the base fee for both trial fees and any appellate fees.
Specifically, Barbour requested that the trial court apply a multiplier of two (2) in determining
reasonable attorneys’ fees. WPI filed a response and objections to Barbour’s motion.
On July 19, 2011, the trial court held a hearing on attorney’s fees. The following day, the
trial court issued its judgment awarding Barbour “reasonable and necessary attorney’s fees” in
the amount of $154,335. WPI requested findings of fact and conclusions of law. The trial
court’s findings of fact included findings that: (1) Barbour’s attorneys spent a total of 545 hours
and 45 minutes on Barbour’s case (through the jury trial and post-verdict hearings and briefings);
and (2) 514 hours and 45 minutes was a reasonable and necessary amount of hours. The trial
court also found the reasonable hourly rates for Barbour’s attorneys were: (1) $300 per hour for
Jason Smith; (2) $300 an hour for Zoe Courtney; and (3) $200 an hour for John Brender. The
trial court then stated a number of findings detailing the qualifications of the attorneys.
Following such statements, the court, in finding of fact number 32, stated:
The Court finds that Rhonda Barbour’s reasonable and necessary attorneys’ fees
through the trial of this case and for post verdict hearings and briefing
are One Hundred Fifty-Four Thousand Three Hundred Thirty-Five Dollars
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($154,335.00).10
In its conclusions of law, the trial court specifically stated that Barbour should recover attorneys’
fees in the amount of $154,335. On appeal, Barbour challenges only the trial court’s final
conclusion of law stating:
The Court concludes that it is not authorized to utilize a multiplier in awarding
attorneys’ fees under Chapter 21.259, but finds that a 1.5 multiplier would be
appropriate if an appellate court concludes otherwise.
Barbour argues that the trial court erred as a matter of law by concluding that it did not have the
authority under Texas Labor Code Section 21.259 to apply a multiplier to enhance the amount of
attorney’s fees in an age discrimination case. Accordingly, Barbour asks us to render judgment
applying a 1.5 multiplier to the attorneys’ fee award.
Standard of Review
We review challenges to a trial court’s conclusions of law de novo. Hitzelberger v.
Samedan Oil Corp., 948 S.W.2d 497, 503 (Tex.App.--Waco 1997, pet. denied); Piazza v. City of
Granger, 909 S.W.2d 529 (Tex.App.--Austin 1995, no writ.).
Applicable Law
Under Section 21.259(a) of the Texas Labor Code, a prevailing party is entitled to
recover reasonable attorney’s fees as “part of the costs.” See TEX.LAB.CODE ANN. §21.259(a).
In a suit brought under Texas law, the method of assessing and awarding attorney fees is
governed by Texas procedural rules. State v. Anderson Courier Service, 222 S.W.3d 62, 67
(Tex.App.--Austin 2005, pet. denied); Dillard Department Stores, Inc. v. Gonzales, 72 S.W.3d
398, 413 (Tex.App.--El Paso 2002, pet. denied). For suits brought under Section 21.259(a) of
10
In its final three findings of fact (numbers 33-35), the trial court found: (1) should Barbour prevail on appeal,
reasonable and necessary attorney’s fees would be $30,000; (2) if the matter is further appealed by petition of review
to the Supreme Court, reasonable and necessary attorneys’ fees would be $12,000; and (3) if the Supreme Court
grants Barbour’s petition for review, reasonable and necessary attorneys’ fees would be an additional $30,000, “in
the event she should prevail.”
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TCHRA, Texas courts have adopted the “lodestar” method for calculating the amount of fees to
award.11 See, e.g., Dillard Department Stores, Inc. v. Gonzales, 72 S.W.3d 398, 412 (Tex.App.--
El Paso 2002, pet. denied); West Telemarketing Corporation Outbound v. McClure, 225 S.W.3d
658, 675-76 (Tex.App.--El Paso 2006, pet. granted, judgm’t vacated w.r.m.).
In El Apple I, Ltd. v. Olivas, 370 S.W.3d 757 (Tex. 2012), the Texas Supreme Court
explained that determining what constitutes a reasonable fee under the lodestar method is a two-
step process. El Apple I, Ltd, 370 S.W.3d at 759. In step one, the court determines the
reasonable number of hours spent by counsel on the case and a reasonable hourly rate for the
work performed. Id. The court then multiplies the number of hours reasonably expended by the
reasonable hourly rate to arrive at the lodestar. Id. In step two, the court considers whether
certain factors merit an upward or downward adjustment of the lodestar in order to reach a
reasonable fee award. Id.
In setting forth this process, the court acknowledged and accepted the presumption that
the lodestar produces a reasonable fee. El Apple I, Ltd., 370 S.W.3d at 759. However, it
recognized that “exceptional circumstances may justify enhancements to the base lodestar” Id.
In other words, once the base lodestar has been calculated, a court may raise or lower the
lodestar amount if certain relevant factors indicate an adjustment is necessary.
The relevant factors the court may consider in determining whether an adjustment is
11
The remedies provided under TCHRA mirror those available under those available in federal employment
discrimination law. Compare TEX.LAB.CODE ANN. §§ 21.258, 21.2585, 21.259(a) with 42 U.S.C. §§ 1981a, 2000e-
5(g), 2000e-5(k). As noted above, one purpose of TCHRA is to harmonize state and federal employment
discrimination law. TEX.LAB.CODE ANN. § 21.001(1). Therefore, while state procedural rules govern the
determination of attorney’s fees in a suit brought under state law, Texas courts have looked to federal law in
applying Section 21.259(a) of TCHRA. See, e.g., Southwestern Bell Mobile Sys., Inc. v. Franco, 971 S.W.2d 52,
55-56 (Tex. 1998); Burgmann Seals America, Inc. v. Cadenhead, 135 S.W.3d 854, 860-61 (Tex.App.--Houston [1st
Dist.] 2004, pet. denied); Elgaghil v. Tarrant County Junior College, 45 S.W.3d 133, 144-45 (Tex.App.--Fort Worth
2000, pet. denied). Federal courts use the lodestar method in awarding attorney’s fees. See, e.g., Dillard
Departmentt Stores, Inc. v. Gonzales, 72 S.W.3d 398, 412 (Tex.App.--El Paso 2002, pet. denied); West
Telemarketing Corp. Outbound, 225 S.W.3d at 675-76.
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necessary are found in the Texas Disciplinary Rules of Professional Conduct. Such factors
include: (1) the time and labor required, the novelty and difficulty of the questions involved, and
the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the
client, that the acceptance of the particular employment will preclude other employment by the
lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount
involved and the results obtained; (5) the time limitations imposed by the client or by the
circumstances; (6) the nature and length of the professional relationship with the client; (7) the
experience, reputation, and ability of the lawyer or lawyers performing the services; and (8)
whether the fee is fixed or contingent on results obtained or uncertainty of collection before the
legal services have been rendered. El Apple I, Ltd., 370 S.W.3d at 761.
These factors mirror those set out by the Fifth Circuit in Johnson v. Georgia Highway
Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974), overruled on other grounds by Blanchard v.
Bergeron, 489 U.S. 87, 109 S. Ct. 939, 103 L. Ed. 2d 67 (1989). In Johnson, the Fifth Circuit
explained that the lodestar may not be adjusted due to a Johnson factor if that factor was already
considered in determining the base lodestar amount. Johnson, 488 S.W.2d at 717-19; see also
Dillard Department Stores, Inc., 72 S.W.3d at 412 (noting that if some of the Johnson factors are
accounted for in the lodestar amount, they should not be considered when making adjustments).
In addition, the United States Supreme Court has explained that while a lodestar may be
adjusted, such adjustments are appropriate only in “rare circumstances.” Perdue v. Kenny A, 559
U.S. 542, 130 S. Ct. 1662, 1673, 176 L. Ed. 2d 494 (2010). The court went on to state that the
“lodestar figure [already] includes most, if not all, of the relevant factors constituting a
‘reasonable’ attorney’s fee.” Id.
In calculating attorney’s fees under lodestar, the party applying for the award bears “the
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burden of documenting the hours expended on the litigation and the value of those hours.” See
El Apple I., 370 S.W.3d at 761, citing Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S. Ct. 1933,
76 L. Ed. 2d 40 (1983). Generally, an attorney meets this burden by providing documentation
evidencing the time expended on the case and reasonable hourly rates. In calculating an award,
the trial court should obtain sufficient information to make a meaningful evaluation of the
application for attorney’s fees, and should exclude charges for duplicative, excessive, or
inadequately documented work. Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir. 1993). Generally,
the award of attorney’s fees is within the trial court’s sound discretion. See El Apple I., 370
S.W.3d at 761, citing Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 881 (Tex.
1990)(per curiam).
Analysis
Barbour does not specifically challenge the trial court’s judgment awarding “reasonable
and necessary” attorney’s fees in the amount of $154,335, nor does she challenge the trial court’s
findings of fact that such amount is “reasonable and necessary.” She does not argue that the trial
court abused its discretion in calculating the amount of the award, or otherwise assert a challenge
to the sufficiency of the evidence supporting the trial court’s award. Instead, she contends that
the trial court erred as a matter of law by concluding that it was not authorized to utilize a
multiplier in awarding attorney’s fees under Section 21.259. Barbour relies on the Texas
Supreme Court’s decision in El Apple I and argues that it confirms that the trial court below
erred in concluding that it was not authorized to utilize a multiplier.
While El Apple acknowledges that a multiplier may be applied to the lodestar amount in
cases filed under the Texas Labor Code, it specified that only “exceptional circumstances may
justify enhancements to the base lodestar.” El Apple I, Ltd., 370 S.W.3d at 760. To justify
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adjusting the lodestar figure, the court must rely on factors such as the complexity of the case,
the skill of the attorney, whether the fee is contingent, and the novelty of the issues raised. The
problem here is that the findings of fact indicate that the trial court relied on each one of these
factors in determining the lodestar. Barbour does not point to any additional evidence indicating
exceptional circumstances existed which would warrant utilization of a multiplier. Likewise, we
do not find any indication that Barbour’s counsel ever identified which factors supported the use
of a multiplier, separate and distinct from those use to calculate the base lodestar.
The trial court specifically and repeatedly referred to the fees awarded as “reasonable and
necessary.” Under Texas law, that is all the trial court is authorized to award. Finding no error,
we overrule Barbour’s sole point and affirm the judgment.
March 20, 2013
ANN CRAWFORD McCLURE, Chief Justice
Before McClure, C.J., Rivera, and Antcliff, JJ.
Antcliff, J., not participating
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