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Texas Department of Transportation v. Flores

Court of Appeals of Texas, Eighth District, El Paso

May 15, 2019


          Appeal from the 171st District Court of El Paso County, Texas (TC# 2014-DCV1263)

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



         Genaro Flores sued the Texas Department of Transportation (TxDOT), his former employer, for age discrimination under Chapter 21 of the Texas Labor Code. Following a jury trial, the jury found in favor of Flores and the trial court rendered judgment on the jury's verdict. TxDOT challenges the judgment based on (1) whether the trial court had subject matter jurisdiction over this discrimination claim asserted against a governmental employer, and (2) whether the evidence was legally and factually sufficient to support the jury's verdict. We affirm as modified.


         Flores worked for TxDOT as an assistant supervisor assigned to the Maintenance Section of the El Paso office. In 2013, when he was terminated from his employment, Flores was 46 years old. The maintenance section was supervised by Hector Granados, who in turn, was supervised by Tim Twomey, the West El Paso Area Engineer for the West Area Office. As the District Engineer, Bob Bielek supervised Twomey and generally oversaw the El Paso District.

         TxDOT initially hired Flores in 1994 as a "Tech 1," an entry-level position. After years of continuous employment, Flores was promoted to assistant maintenance supervisor in 2004. Flores loved his job and felt proud to be promoted to a position where he supervised more than twenty crew members. In 2011, he was temporarily promoted to maintenance supervisor when the previous supervisor retired, and he performed well. On several occasions, Flores was rated on evaluations as an employee who performed at the exceptional level who frequently exceeded expectations. His record also showed he was never formally disciplined during this period.

         Circumstances changed, however, after Granados was selected as permanent supervisor of the section and Flores began working under his supervision. Soon after his promotion, Granados initiated disciplinary action against Flores for which Flores eventually received a written reprimand based on his alleged failure to meet performance standards and follow TxDOT procedures. Flores received another written reprimand for allegedly taking a TxDOT work truck into New Mexico to visit a bank ATM, which purportedly violated TxDOT's policies regarding out-of-state use of official vehicles for non-state business purposes.

         Following issuance of his second written reprimand, Flores received further disciplinary actions. After additional instances of purported malfeasance, Granados recommended to TxDOT's Human Resources Department that Flores be issued another written reprimand. Human Resources, however, recommended probation-a higher level of discipline-and Flores was in fact placed on probation. In April 2013, Granados disciplined Flores again because Flores allegedly took a TxDOT truck to a local store to purchase supplies for his personal business, which purportedly violated TxDOT's policy on the use of state vehicles for personal activities. After this latest allegation, Granados again submitted disciplinary action paperwork to Human Resources. Although Human Resources and Bielek recommended terminating Flores, Granados claimed that he and Twomey persuaded Bielek not to terminate Flores. Flores was given probation and five days' suspension without pay. Granados additionally issued a formal warning describing policies Flores had purportedly violated and warning that future violations could result in termination.

         On June 25, 2013, a vehicle traveling on a highway struck and killed a TxDOT employee who was working on an exit sign alongside another worker. As a result of this incident, TxDOT held a meeting at which District Engineer Bielek gave a verbal order requiring use of an attenuator[1]whenever TxDOT had "boots on the ground." On July 11, 2013, Flores assigned two teams to pick up litter on highways and ordered another employee to request two attenuators from a contractor, one for each crew. After making these assignments, Flores left the yard to perform his own duties and assumed the two attenuators had been ordered and obtained. Although the contractor only provided one attenuator, Flores was not initially aware. When Flores saw that one of the crews was working without an attenuator, he immediately pulled over and called one of the crew members, Pablo Ramirez, on the radio to ask him about the absence of an attenuator. Up until that time, Flores was not aware that the crew had been working without an attenuator. When Granados overheard Flores calling Ramirez on the radio, Granados called Flores on his cell phone and directed him to return to the office.

         At a meeting held with crew and Granados, Pablo Ramirez admitted it had been his fault that he worked without an attenuator and accepted responsibility for the incident. Nonetheless, Granados filed a report with Human Resources with a recommendation that Flores receive another written reprimand. Human Resources in Austin, however, recommended that Flores be terminated. District Engineer Bielek testified that he eventually made the decision to terminate Flores for the three previous disciplinary actions and because of the attenuator incident. On July 31, 2013, TxDOT issued termination paperwork to Flores signed by Granados and Twomey.

         Flores later testified at trial that he had met with Bielek prior to his termination and told Bielek that Granados was treating him and the "older guys" in his section unfairly. Bielek responded that Flores needed to follow Granados's instructions, and that perhaps it was time for Flores to get another job. Flores also testified that he told a Human Resources representative, Carmela Magallanez-Aguilar, about Granados treating him and other older employees unfairly but she merely responded that Granados and Twomey were his supervisors. Further, another employee, Javier Castillo, made a formal complaint of age discrimination about Granados, but Granados was unaware of the complaint until the time he was deposed and Magallanez-Aguilar, the TxDOT Human Resources representative, was not questioned about Granados's treatment of employees.

         Following his termination, Flores filed a verified charge of discrimination with the Equal Employment Opportunity Commission (EEOC) and the Texas Workforce Commission (TWC), alleging that Granados terminated him because of his age. After both organizations issued notices of his right to sue, Flores sued TxDOT pursuant to Texas Labor Code, Chapter 21, alleging that he was terminated based on his age. TxDOT filed a plea to the jurisdiction and motion for summary judgment, both of which the trial court denied.[2] The jury rendered a verdict in favor of Flores finding that Flores's age was a motivating factor in TxDOT's decision to terminate his employment. Following a hearing on TxDOT's motion for judgment notwithstanding the verdict and Flores's motion for entry of judgment, the court rendered judgment on the jury's verdict. TxDOT subsequently filed a request for findings of fact and conclusions of law and a motion for a new trial, but the trial court did not grant a new trial or file findings or conclusions. This appeal followed.


         TxDOT appeals the trial court's judgment in eight issues, arguing that (1) Flores's case should be dismissed because there is no evidence establishing a prima facie case of age discrimination, and there is no evidence that age was a motivating factor in TxDOT's decision to terminate him; (2) there is insufficient evidence that age was a motivating factor in TxDOT's decision to terminate him; (3) the jury charge contained two erroneous instructions, one of which was an improper "permissive pretext" instruction, and both of which constituted an improper comment on the weight of the evidence; (4) the trial court erred by excluding documents pertaining to Flores's disciplinary actions; (5) the trial court erred by finding reinstatement feasible without entering the requested findings of fact and conclusions of law; (6) the trial court erred by granting reinstatement; (7) the evidence is factually and legally insufficient to sustain the compensatory damages award; and (8) the trial court erred in awarding Flores the right to execute. In the interest of efficiency, we address the issues simultaneously where possible.

         Sufficiency of the Evidence

         Applicable Law

         In its first two issues, TxDOT argues that the trial court lacked jurisdiction over the case because the evidence was legally and factually insufficient to support the judgment. Flores sued TxDOT under the Texas Commission on Human Rights Act (TCHRA). See generally Tex. Lab. Code Ann. §§ 21.051-.556. Among other protections, the TCHRA prohibits an employer from terminating or discriminating against an employee because of the employee's age. Id. § 21.051(1). TCHRA provisions referring to discrimination because of age or on the basis of age apply only to discrimination against an individual 40 years of age or older. Id. § 21.101. Because the Legislature intended to correlate state law with federal law addressing discrimination by enactment of the TCHRA, we may look to federal case law to inform our analysis. Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex. 2003) (citing Tex. Lab. Code Ann. § 21.001); see also Specialty Retailers, Inc. v. DeMoranville, 933 S.W.2d 490, 492 (Tex. 1996). To establish a violation of the TCHRA, the plaintiff must show that he or she was (1) a member of the class protected by the TCHRA; (2) qualified for his or her position; (3) terminated by the employer; and (4) treated less favorably than similarly situated members of the opposing class, such that age was a motivating factor in the decision to terminate the plaintiff. AutoZone, Inc. v. Reyes, 272 S.W.3d 588, 592 (Tex. 2008) (citing Ysleta Indep. Sch. Dist. v. Monarrez, 177 S.W.3d 915, 917 (Tex. 2005)); Canchola, 121 S.W.3d at 739; Moreno v. Texas Dept. of Transp., 440 S.W.3d 889, 895 (Tex. App.-El Paso 2013, pet. denied).

         Texas courts recognize two alternative methods of proof in discriminatory treatment cases. Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 634 (Tex. 2012). The first method involves proving discriminatory intent via direct evidence of what the defendant said and did. Id. Recognizing, however, that motives for terminating employees are often more covert than overt, the Supreme Court of the United States established a second method of proof which employs a burden-shifting framework once a plaintiff establishes a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). Although the precise elements of this showing will vary depending on the allegations, id., the plaintiff's burden at this stage of the case "is not onerous." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). The burden of going forward then shifts to the employer to articulate some legitimate, nondiscriminatory reason for the complained-of action or decision. McDonnell Douglas, 411 U.S. at 802. The offer of a legitimate reason eliminates the presumption of discrimination created by the plaintiff's prima facie showing. Burdine, 450 U.S. at 254. The burden then shifts back to the complainant to show that the employer's stated reason was a pretext for discrimination. McDonnell Douglas, 411 U.S. at 805-07; Burdine, 450 U.S. at 256.

         In discrimination cases which have not been fully tried on the merits, we apply the burden-shifting analysis established in McDonnell Douglas, 411 U.S. at 802-03; Canchola, 121 S.W.3d at 739 (citations omitted). Where a discrimination case has been fully tried on the merits, however, a reviewing court does not engage in a burden-shifting analysis. Canchola, 121 S.W.3d at 739 (citing Rubinstein v. Adm'rs of the Tulane Educ. Fund, 218 F.3d 392, 402 (5th Cir. 2000)). Instead, we only inquire whether the evidence is legally sufficient to support the jury's ultimate finding. Id. (citing Rutherford v. Harris Cty., Texas, 197 F.3d 173, 180-81 (5th Cir. 1999)). At trial, the burden of proving that age was a motivating factor in the employee's termination belongs to the plaintiff claiming discrimination. See id. (citing Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 480 (Tex. 2001)).

         TxDOT argues in its first issue that there is no evidence that Flores's age was a motivating factor in his termination, and that the case should therefore be dismissed for want of jurisdiction based on TxDOT's sovereign immunity. Sovereign immunity from suit defeats a trial court's subject matter jurisdiction. Texas Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004). Where a jurisdictional challenge under the TCHRA is raised after a trial on the merits, the prima facie case is no longer relevant; instead, we must determine on review whether the evidence is legally sufficient to support the jury's ultimate finding. See San Antonio Water Sys. v. Nicholas, 461 S.W.3d 131, 136 (Tex. 2015); City of Houston v. Sw. Bell Tel. Co., No. 01-16-00734-CV, 2017 WL 3262131, at *2 (Tex. App.-Houston [1st Dist.] Aug. 1, 2017, no pet.) (mem. op., not designated for publication) (citing Prairie View A & M Univ. v. Brooks, 180 S.W.3d 694, 704 (Tex. App.-Houston [14th Dist.] 2005, no pet.)). Because TxDOT challenges the legal and factual sufficiency of the jury's determination that age was a motivating factor in Flores's termination, we consider both the legal sufficiency of TxDOT's immunity together with TxDOT's second issue regarding the legal and factual sufficiency of the jury's determination that age was a motivating factor in Flores's termination.

         Under the legal sufficiency standard, we must credit evidence favorable to the judgment if a reasonable fact finder could, disregard contrary evidence unless a reasonable fact finder could not, and reverse the fact finder's determination only if the evidence presented in the trial court would not enable a reasonable and fair-minded fact finder to reach the judgment under review. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We sustain a legal sufficiency challenge if the record demonstrates (1) the complete absence of a vital fact; (2) that the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (3) that the evidence offered to prove a vital fact is no more than a scintilla; or (4) that the evidence conclusively establishes the opposite of a vital fact. Id. at 810. More than a scintilla of evidence exists if the evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004). When considering a factual sufficiency challenge brought by a party without the burden of proof at trial, we consider all the evidence and set aside the judgment only if it is so contrary to the overwhelming weight of the evidence that it is clearly wrong and unjust. City of El Paso v. Parsons, 353 S.W.3d 215, 225 (Tex. App.-El Paso 2011, no pet.) (citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986)).

         Under either standard, we acknowledge that the jury is the sole judge of the credibility of witnesses and the weight to be given their testimony. Id. (citing McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex. 1986)). The jury may choose to believe one witness and disbelieve another, and we must not impose our opinion to the contrary. Id. (citing City of Keller, 168 S.W.3d at 819). The inferences drawn from the evidence is also within the province of the jury, and thus we must assume that the jurors made all inferences in favor of the verdict if reasonable minds could do so and disregard all other inferences not so drawn. City of Keller, 168 S.W.3d at 820-21. "If the evidence at trial would enable reasonable and fair-minded people to differ in their conclusions, then jurors must be allowed to do so. A reviewing court cannot substitute its judgment for that of the trier-of-fact, so long as the evidence falls within this zone of reasonable disagreement." Id. at 822.


         We now determine whether Flores satisfied his burden at trial to present sufficient evidence to support the jury's finding that age discrimination was a motivating factor in TxDOT's decision to terminate him. See Claymex Brick and Tile, Inc. v. Garza, 216 S.W.3d 33, 36 (Tex. App.-San Antonio 2006, no pet.) (citing City of Austin Police Dep't. v. Brown, 96 S.W.3d 588, 596 (Tex. App.-Austin 2002, pet. dism'd)); Canchola, 121 S.W.3d at 739. The parties do not dispute that Flores met the threshold burden of establishing that he was discharged from employment, though qualified for the job, at a time when he met the age requirement of the protected class. At issue, we must determine whether legally sufficient evidence exists to establish that Flores's age was a motivating factor ...

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