Court of Appeals of Texas, Second District, Fort Worth
BELL HELICOPTER TEXTRON, INC. APPELLANT
BRIAN BURNETT APPELLEE
THE 153RD DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO.
WALKER and PITTMAN, JJ.; CHARLES BLEIL (Senior Justice,
Retired, Sitting by Assignment).
CHARLES BLEIL JUSTICE
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
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.
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.
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
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 . . . .
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."
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."
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.
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.
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."
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.
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
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.
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.
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
to Burnett, Rosenbaum's letter, which he signed,
"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.
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." 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
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.
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."
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.
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."
replace Burnett, Bell Helicopter promoted Candice Sharp,
was twenty-nine years old and had a younger appearance than
Burnett. Regarding the decision to promote Sharp, Rosenbaum
[S]he had a strong educational background. She had both a
bachelor's [degree] and an MBA. 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.
sued Bell Helicopter. He pleaded that Bell Helicopter had
violated section 21.051 of the labor code 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."
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
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.
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.
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. 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.
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."
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 ...