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Bell Helicopter Textron, Inc. v. Burnett

Court of Appeals of Texas, Second District, Fort Worth

June 14, 2018



          PANEL: WALKER and PITTMAN, JJ.; CHARLES BLEIL (Senior Justice, Retired, Sitting by Assignment).



         The trial court awarded appellee Brian Burnett damages for age discrimination after appellant Bell Helicopter Textron, Inc. fired him when he was forty years old. In six issues, Bell Helicopter contends that the evidence is legally and factually insufficient to support several findings on liability; that the trial court abused its discretion by awarding Burnett front pay; and that, alternatively, the labor code caps Burnett's damages for front pay and for future mental anguish. We hold that the evidence, although conflicting in some respects, supports the trial court's findings on liability and on damages; we decline to second-guess those findings based on our review of the cold appellate record. We also conclude that the labor code does not cap the trial court's awards for front pay and for future mental anguish. We therefore affirm the trial court's judgment.


         Burnett was born in August 1973. He was twenty-two years old in 1996 when he began working for Bell Helicopter-a rotor aircraft business-as a stock clerk. The stock clerk position required him to pull parts for customers and to process bills of lading. He worked as a stock clerk for three years before he became a dispatcher at Bell Helicopter for two years. As a dispatcher, he was responsible for ensuring that parts reached assemblers on time.

         Burnett later worked in Bell Helicopter's data release department, performing clerical work. His main function was to load engineering orders and drawings into a computer system. After working in that department for nine years, he worked in a similar department that was responsible for making changes to manufacturing plans. He received a fifteen-year service award in 2011.

         In 2012, Burnett obtained a position as a senior manufacturing operations specialist, his first nonunion job at Bell Helicopter. When he took the position, he understood that it would be more demanding and that it required different skills than his union jobs, including enhanced communication skills. The position paid him approximately $47 per hour to oversee the assembly of certain parts and the transfer of those parts to Bell Helicopter's representatives in Canada, where the final assembly of Bell Helicopter's "412" aircraft-its most profitable helicopter- occurred. Burnett's position required him to prepare for and host online meetings with the Canadian representatives; his job description required him to, among other tasks, prepare and deliver oral presentations. The Canadian representatives depended on the information from employees in Texas for planning how the representatives could meet commitments to customers.

         Carisa Kimbro first supervised Burnett in his operations specialist position. In her first evaluation of Burnett, she described his overall performance as "on target" and "solid." She wrote in part,

Through 2012, Brian has shown great improvement on how he manages the 412 program, moving from a more defensive to offensive strategy[.] [H]e is becoming better at finding solutions to issues earlier and will look for continued improvement in 2013. . . .
Presentation of information is one of the most important facets of this position. In the current environment, conference rooms and a directed presentation of program status [are] our major means of projecting . . . performance and informing multiple levels of management and many customers on our current position. 2013 should be used to hone the visual presentation of information and [to] clearly and concisely present[] the key messages.
With his prior experience, Brian has a depth of knowledge that has aided in his helping train new personnel within the group. We will continue to look for Brian to be a major team player . . . .

         In 2012, Rebecca Rosenbaum, who was in her early thirties, began preparing to replace Kimbro as Burnett's supervisor. According to Rosenbaum, when she observed Burnett in meetings that year, she concluded that his "communication was not as crisp or as clear" as other employees and that there were "significant challenges to his program."

         During Burnett's time as an operations specialist, Bell Helicopter's attempt to use a new computer system caused significant problems for the entire company. Burnett's department began having daily calls with the Canadian representatives about the assembly and shipping of transmissions and gearboxes. Burnett and Rosenbaum often participated together in the calls. Also, once a week, Burnett used a PowerPoint presentation to communicate with the Canadian representatives. The PowerPoint presentation included information about aircraft parts and about "critical areas that [Burnett] thought [he] needed to bring to management's attention."

         In the first quarter of 2013, Rosenbaum replaced Kimbro. At that time, Burnett was thirty-nine years old, was balding, and had gray in his beard. In the spring and summer of 2013, Rosenbaum noticed several problems in Burnett's performance. She later explained,

There were several occasions when he did not turn in deliverables on time. His communication in meetings was not at the level that we needed to . . . make sure that the audience understood what was going on with his program. There was not enough engagement or communication with other parties within the plant outside of these formal meetings around performance of the programs. . . . There wasn't enough early elevation of issues so that we could prevent some of the problems or help problem solve to make better decisions to improve the overall performance of the programs that he was responsible for.

         Rosenbaum had several informal discussions with Burnett about these concerns. She later testified,

I always tried to give balanced feedback, but certainly there was negative feedback in those meetings . . . .
So we discussed in detail the areas that needed to be improved[.] . . . [T]here was a lot of focus around the need to improve communication . . . with myself and leadership within the factory, but also communication outside in more formal settings and even informal settings with particular customers . . . who were very dependent upon the information from our center in order to do their own planning and ensure that they could meet their commitments to their customers.

         Eventually, Burnett asked Rosenbaum to provide "some relief off the lower priority programs that [he] had" and "told her if that if somebody could help [him] with those[, ] then [he] could spend more time with the 412 program and help improve that program." Rosenbaum responded to his request by giving some of his work to an older employee so that he could "focus on the communication and the critical deliverables that were so key to making the programs that he was responsible for successful."

         On June 17, 2013, Rosenbaum wrote Burnett a letter that described problems with his performance. The letter stated that Burnett was not meeting expectations in two ways: he was "not completing deliverables on time and without errors, " and he needed to "improve communication with manufacturing, assembly, procurement[, ] and customers." Under the subheading relating to not completing deliverables, the letter referred to a "7:45 Daily Canada Call on 5/16." Burnett testified that he missed a meeting on that day because he was sick. Rosenbaum testified,

We had a daily 7:45 call with . . . Canada, to go over the status of all of the key deliverables. We were behind schedule and it was a key communication point so that they understood and could plan their production schedule.
As part of this, Mr. Burnett had to provide me daily a status update on where all the key deliverables on his program were, and on this particular date he did not provide that. I didn't get any information at all and didn't get anything until a text after the meeting was over that he was not coming to work that day.
I wrote him up because he didn't take alternative methods to prepare for the meeting.

         Also under the "deliverables" heading, Rosenbaum's letter described Burnett's failure to have an "[e]rror free program review [on] 6/13." Concerning this error, according to Burnett, Rosenbaum explained to him that he had made some font errors on PowerPoint slides and had included unnecessary information on a slide. Rosenbaum testified regarding that error,

[T]his particular week in the middle of June, there were a number of errors in his program review and on the line of balance, which communicates incorrect or less accurate information to the team.
And, you know, formatting is one piece of that. I think when you're presenting, particularly at that level of the organization, a general manager or a VP, formatting is very important. It helps to ensure that they're focused on the right things, and if there is formatting or other issues, it's a distraction and then an executive is not taking away the key content that they need to from that presentation.

         Under the same heading, the letter referred to a "412 Program Review update for Mike Scruggs 6/14." With respect to this alleged failure, according to Burnett, Rosenbaum accused him of failing to complete a program review (a PowerPoint presentation with "bells and whistles") but had asked him only to complete a less-detailed program summary, which he did. According to Rosenbaum,

Mike Scruggs was the VP who the center reported in through. And we did regular program reviews for him. And this program review was not completed in the way that we had outlined that we needed for this review. It was not the first one that we had done for him. We changed the format slightly from time to time. But the rest of the team was able to deliver the slides, the program review that they needed to, and Mr. Burnett's was insufficient. It didn't have all of the information that was required for that meeting.

         Under the "communication" heading, the letter provided four more alleged deficiencies: "[p]rioritization based on ship alignment for customer, " "[m]issing parts on kits-delay for on time start, " "[p]ush Huey II as well as 412 on quills to meet recovery, " and "[e]mphasis on dates that do not support need or slip." Burnett and Rosenbaum later provided testimony about each of these alleged deficiencies.

         In the letter, Rosenbaum stated that in the next twenty-one days, she expected Burnett to, among other tasks, make on time and accurate daily reports to the Canadian representatives; complete, without errors, program reviews; check in "with assembly . . . to ensure priorities are aligned"; and "[i]ncrease functionality in Excel including graphs, conditional formatting, formatting, etc." The letter ended by stating, "This is a written warning to meet expectations for performance within 21 days or receive additional discipline up to and including termination."

         According to Burnett, Rosenbaum's letter, which he signed, [1] "completely surprised" him. Rosenbaum testified that upon Burnett's receipt of the letter, he agreed that he needed to improve in the areas that the letter had described. Burnett was the only employee to whom Rosenbaum had ever given written discipline.

         Burnett testified that after he received the letter, he met all of the expectations, and Rosenbaum told him that he had improved on the areas that the letter had designated. But according to Rosenbaum, Burnett's overall performance did not improve, and during a conversation that occurred after he received the letter, he acknowledged to Rosenbaum that he was not meeting her expectations and that the job was not a "good fit for him."[2] After Burnett received the letter, Bell Helicopter attempted to find him another job within the company, but Rosenbaum later testified that "none of the other centers were willing to move [Burnett] into a position."

         After giving Burnett the letter, Rosenbaum provided him with a mid-year evaluation. The evaluation stated in part,

During the first half of the year Brian's deliverables often had formatting errors and incomplete information. He has worked to improve, but continued development of his program review and ensuring all end deliverables . . . are included will greatly improve the value of this deliverable. Brian needs to work on improving his communication around issues that are impacting his program. . . .
Comments by Brian J Burnett:
After the format and automated macro changes were made to our Program Review slides [i]t took some adjustment and I worked . . . on some issues I was having that caused some of the formatting issues. There have been improvements made which [have] helped to greatly improve the ease of [inputting] data and navigating between slides. This has been a challenging year . . . due to all of the system changes, labor disruptions, demand volatility, and procurement . . . that [have] created many procured parts to start late. I have tried hard to give early warning and look to improve communication as we work through the many challenges we face on a dally basis.

         The evaluation also stated that Burnett had successfully allocated "parts between his programs, " had "supported legacy spares during the first half of the year, " had "done [a] great job learning . . . new systems . . . and . . . solving issues, " and had "worked hard through a challenging relationship with the dispatcher supporting his program." The evaluation cautioned, however, that he needed to improve "his communication both in tone and frequency."

         According to Rosenbaum, she decided to fire Burnett in July 2013, when he was thirty-nine years old. She did not immediately inform him of the decision because she needed to discuss it with Bell Helicopter's human resources department and because Burnett was going on vacation.

         On August 20, 2013, Bell Helicopter officially fired Burnett. He had turned forty years old sixteen days before his termination. According to Rosenbaum, she was not aware of Burnett's age at that time. In a form that Rosenbaum completed for the termination, she stated that Burnett had "[p]oor communication skills to management."

         To replace Burnett, Bell Helicopter promoted Candice Sharp, [3] who was twenty-nine years old and had a younger appearance than Burnett. Regarding the decision to promote Sharp, Rosenbaum testified,

[S]he had a strong educational background. She had both a bachelor's [degree] and an MBA.[4] She had also, I believe, just received her . . . performance management certificate. She also had strong performances on her performance evaluations. She was a strong communicator and had worked in the finance organization on programs, on the V-22 program at Bell up until that point. And I thought she would be an asset to the team.

         Burnett sued Bell Helicopter. He pleaded that Bell Helicopter had violated section 21.051 of the labor code[5] by firing him because of his age. He asked for an award of damages that included lost wages, lost earning capacity, and mental anguish. Bell Helicopter answered with a general denial and by pleading several affirmative defenses, including that it "would have taken the same action in the absence of the alleged impermissible motivating factor."

         At a bench trial, Burnett acknowledged that he had made errors on PowerPoint slides used in his reports to the Canadian representatives. He explained that the errors had occurred, in part, because his department had "other issues going on" and "didn't have a lot of time to focus on the small details of a font and formatting, stuff like that." Burnett also testified that "quite often, " he saw a younger operations specialist, Greg Isler, make typographical errors on those presentations without receiving discipline.

         When Burnett's counsel asked him why he was "here today, " Burnett responded,

I'm here because I want to stand up for what I feel is unjust. I don't think that any of the negative documents that are in here accurately portray what I gave Bell.
And what I saw out there in the last year of my career made me feel that what was happening was older workers being replaced with younger people. . . .
. . . [A]fter I was terminated, I was able to reflect back on the last year of my career out there, and I knew what was going on. I saw it firsthand. I saw it with my own eyes. And when I found out that my position ended up the same way many other positions had happened in front of me, I felt like I had to fight. I had to fight because it is wrong. I gave my all to that company. I didn't deserve it. And who they replaced me with was not any more qualified than I was for that position. And I believe the record shows at the end of all this that to be true.
During Burnett's cross-examination by Bell Helicopter's counsel, the following exchange occurred:
Q. At any time that [Rosenbaum] was giving you feedback, did you think she was doing it because you were 39 years old?
A. Not because I was 39, no.

         Later, Burnett testified that Rosenbaum's criticism of his performance was because of his age. He acknowledged that when Rosenbaum gave him written criticisms of his performance, he was not yet forty years old. During his employment at Bell Helicopter, Burnett never told a supervisor that he believed he was being discriminated against because of his age, and he never filed an age discrimination complaint with the company's human resources department.

         Russell Creamer, who had worked closely with Burnett, testified on Burnett's behalf. According to Creamer, Burnett was professional, prepared, respectful, and hard-working. Creamer testified that Rosenbaum "popp[ed] the whip" with Burnett. He explained that Rosenbaum spoke unprofessionally to Burnett and that younger employees received different, more respectful treatment.[6] Creamer believed that Burnett's age factored into Rosenbaum's decision to fire him. He also testified that Sharp, Burnett's replacement, had a significantly-younger appearance than Burnett.

         Creamer testified that he had noticed a trend of Bell Helicopter "trying to get rid of older people and bring in the newer, younger people." He explained that there were "lots more" Bell Helicopter employees in their twenties and thirties than there had been three or four years prior. Creamer testified that Bell Helicopter had engaged in "several layoffs and . . . several voluntary separation packages . . . to get rid of some of the older people and bring in the young." He explained, "I've never seen [Bell Helicopter] lay off the younger people that they replace the older people with."

         In Rosenbaum's testimony, she expressly denied that she had ever hired or fired anyone because of age. She testified that in her supervisory role at Bell Helicopter, she had hired an operations specialist who was in his mid-forties because she believed he would "do an excellent job in the role." She also testified that other operations specialists that she supervised at Bell Helicopter were in their late thirties, forties, and fifties, and that she never disciplined any of ...

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