Court of Appeals of Texas, Eighth District, El Paso
from the 171st District Court of El Paso County, Texas (TC#
McClure, C.J., Rodriguez, and Palafox, JJ.
M. PALAFOX, JUSTICE.
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.
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.
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.
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
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.
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 attenuatorwhenever 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.
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
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.
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. 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.
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.
of the Evidence
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).
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.
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)).
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.
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)).
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.
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 ...