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Moreno v. Texas Department of Transportation

Court of Appeals of Texas, Eighth District, El Paso

December 18, 2013

JERRY MORENO, Appellant,

Page 890

Appeal from the 205th Judicial District Court of El Paso County, Texas. (TC# 2006-4096).

Before McClure, C.J., Rivera, and Rodriguez, JJ.



Page 891

In this wrongful-termination action, Jerry Moreno appeals the trial court's take-nothing judgment in favor of the Texas Department of Transportation (TxDOT). In four issues, Moreno argues the trial court erred in granting a directed verdict on his discrimination and due process claims and in excluding evidence of discrimination. We affirm.


Moreno was born in Mexico in 1956 and began working for TxDOT in 1988. For fifteen years, Moreno worked under the supervision of an area engineer named Carlos Ahumada. While under Ahumada's supervision, Moreno received good employee evaluations, often exceeding required standards, and was never disciplined for his work performance. When Ahumada retired from TxDOT in August 2003, he was succeeded by Tim Twomey.

Twomey, unlike Ahumada, was critical of Moreno's job performance. Approximately six months after taking over, Twomey removed Moreno from a project and demoted him. Moreno's job performance improved, however, and he was restored to chief construction inspector and assigned to the Traffic Signal Synchronization project in late 2004.

Problems soon arose between Moreno and some of the employees of the project's

Page 892

contractor, Tri-State Electrical. Moreno was accused of, among other things, abusive behavior and unprofessional conduct. These allegations were substantiated in an investigation conducted by a TxDOT internal auditor. In his report dated June 30, 2005, the auditor concluded that Moreno had violated certain department policies and that Moreno's behavior toward crew leaders and workforce was demeaning and patronizing and therefore did " not meet the standards of being congenial and professional." Although the field office recommended that Moreno be demoted and placed on probation, human resources personnel in Austin recommended that Moreno be terminated because his actions toward the Tri-State employees " [were] so outside the scope, so unprofessional and disrespectful, [that] [TxDOT] could not afford to have him ever do that again." Moreno was terminated in August 2005, when he was forty-nine years' old, and he was eventually replaced by a thirty-two-year-old Hispanic male named Julian Cereceres.

Moreno filed an internal appeal of his termination. In connection with the appeal, Moreno attended an administrative hearing before a hearing officer. Moreno's internal appeal was denied, as was the charge of discrimination that Moreno filed with the EEOC. Thereafter, Moreno filed this suit against TxDOT, alleging that he was discriminated against on the bases of age and national origin in violation of the Texas Commission on Human Rights Act (TCHRA) and denied due process as guaranteed by Section 19, Article I of the Texas Constitution.

At trial, Moreno could not testify to any particular discriminatory comments, directed at him or others, that he heard while employed at TxDOT. Moreno did testify that another TxDOT employee told him that Twomey was " a racist" and that Twomey did not like him and was going to hurt him, " [i]f not now, later." When asked if he believed that Twomey was critical of him because Twomey was a racist and hateful of his national origin, Moreno initially testified, " [n]ot of my national origin but with me personally." Moreno later testified that Twomey treated him badly because Twomey did not like both his personality and national origin. Although Moreno acknowledged that Twomey was responsible for restoring him back to his position of chief inspector and assigning him to the synchronization project, Moreno believed nevertheless that Twomey and the Tri-State employees conspired against him.


We first address Moreno's third issue to determine whether we can appropriately consider the evidence Moreno contends the trial court improperly excluded in our analysis of the remainder of his issues. Moreno argues the trial court erred in excluding evidence proving " that other employees, similarly situated, who were not members of [his] national origin class, and who had engaged in more egregious conduct than [he], were not terminated and were allowed the benefits of progressive discipline." TxDOT counters that " [Moreno] failed to make a threshold showing that the proffered evidence was admissible." We agree.

Standard of Review

We review a trial court's decision to exclude evidence for an abuse of discretion. State v. Bristol Hotel Asset Co., 65 S.W.3d 638, 647 (Tex. 2001). A trial court abuses its discretion in excluding evidence if it acts arbitrarily or unreasonably or without reference to guiding rules or principles. Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 687 (Tex. 2002).

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Moreno complains specifically of two evidentiary rulings made by the trial court.

1. Disciplinary Records

At trial, Moreno sought to introduce into evidence several records concerning disciplinary action taken by TxDOT against other employees. Moreno argued the records were admissible because TxDOT opened the door to their admissibility by asking him if he had obtained any information ...

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