Beaumont Independent School District v. Linda Wortham

• Court: Court of Appeals of Texas
• Decided: September 14, 2006
• Docket: 09-05-00443-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-05-443 CV

BEAUMONT INDEPENDENT SCHOOL DISTRICT, Appellant

V.

LINDA WORTHAM, Appellee

On Appeal from the 172nd District Court

Jefferson County, Texas

Trial Cause No. E-158573

MEMORANDUM OPINION

Linda Wortham sued Beaumont Independent School District (BISD) under the Texas Commission on Human Rights Act (TCHRA) for race discrimination. See Tex. Lab. Code Ann. § 21.051 (Vernon 2006). The jury returned a verdict in Wortham's favor. The trial court's judgment awarded $38,711 for past lost wages, $250,000 for mental anguish damages, $112,637.16 for prejudgment interest, and $151,340 for attorney's fees. BISD raises seven issues on appeal, including an issue attacking the legal and factual sufficiency of the evidence that race was a motivating factor for its decisions. Wortham filed a cross-appeal contesting the amount of interest awarded. We sustain BISD's factual sufficiency challenge and remand the cause for a new trial.

The Statute

Section 21.051 of the Texas Labor Code provides in part that an employer commits an unlawful employment practice if the employer discriminates against an employee based on "race, color, disability, religion, sex, national origin, or age. . . ." See Tex. Lab. Code § 21.051. ⁽¹⁾ Section 21.125(a) of the TCHRA provides that "an unlawful employment practice is established when the complainant demonstrates that race . . . was a motivating factor for an employment practice, even if other factors also motivated the practice, unless race . . . is combined with objective job-related factors to obtain diversity in the employer's work force." Tex. Lab. Code Ann. § 21.125(a) (Vernon 2006). The jury was instructed in this case that a "'motivating factor' in an employment decision is a reason for making the decision at the time it was made. There may be more than one motivating factor. . . ." ⁽²⁾ The defendant may attempt to demonstrate that it would have taken the same action in the absence of the impermissible motivation. See Tex. Lab. Code Ann. § 21.125(b) (Vernon 2006). If the defendant establishes the "same action" defense, the statute restricts the remedies available to the plaintiff. Id.; see also Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003) (Title VII provides a similar affirmative defense for the employer.).

An employer is not liable under the statute for a "careless" decision that does not violate the statute. See Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 740 (Tex. 2003). That is, the question is not whether Wortham should have been promoted earlier based on her qualifications. Rather, the ultimate question under the statute is whether race was a motivating factor in the decisions not to promote her at the time. ⁽³⁾ See id. at 739-40.

The Jury's Finding

Wortham had the burden at trial to demonstrate race was a motivating factor in BISD's decision not to promote her to certain positions for which she applied in 1996 and 1997. See Canchola, 121 S.W.3d at 739 (citing Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 480 (Tex. 2001)). The jury found Wortham met that burden. The jury further found that BISD would not have taken the same action in the absence of racial discrimination.

The Standard of Review

First, BISD contends the evidence is legally insufficient to support the jury's finding that race was a motivating factor. Whether there is any evidence to support a verdict is considered a question of law, not of fact, and so a no-evidence review is referred to as a legal sufficiency review. A legal sufficiency review must credit favorable evidence if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); see also Ysleta Indep. Sch. Dist. v. Monarrez, 177 S.W.3d 915, 917 (Tex. 2005); Canchola, 121 S.W.3d at 739 (citing Bradford v. Vento, 48 S.W.3d 749, 754 (Tex. 2001)). A no-evidence challenge ⁽⁴⁾ fails if more than a scintilla of evidence supports the challenged finding. City of Keller, 168 S.W.3d at 810. Evidence that merely creates a suspicion of the existence of a vital fact is not legally sufficient. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004). If there is no evidence to support a verdict, the appellate court reverses the trial court's judgment and renders a proper judgment. See generally Excel Corp. v. Apodaca, 81 S.W.3d 817, 819, 822 (Tex. 2002). In this case, if no evidence supports the jury's finding, the proper judgment would be that Wortham take nothing in her claim against BISD.

Second, BISD argues the evidence is factually insufficient to support the jury's finding that race was a motivating factor. Article V, section 6 of the Texas Constitution states that decisions of courts of appeals are conclusive on all questions of fact. See Tex. Const. art. V, § 6(a). A factual sufficiency challenge differs from a legal sufficiency challenge both in the standard of review the appellate court applies and in the remedy sought. In a factual sufficiency issue, the reviewing court weighs all the evidence for and against the jury's finding and sets aside the verdict if the supporting evidence is so weak, or the evidence to the contrary is so overwhelming, that it is clear the finding is wrong and manifestly unjust. See Dyson v. Olin Corp., 692 S.W.2d 456, 457 (Tex. 1985); Western Atlas Int'l, Inc. v. Wilson, 930 S.W.2d 782, 784 (Tex. App.--Tyler 1996, writ denied); see also Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965). This standard of review assures the right to trial by jury remains inviolate and assures appellate court review of fact questions, both of which, in the words of the Texas Supreme Court, "have peacefully co-existed for almost one hundred and fifty years, and are thoroughly rooted in our constitution and judicial system." Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 652 (Tex. 1988). As part of the appellate jurisdiction over factual matters, the courts of appeals weigh countervailing evidence. See Tex. Const. art. V, § 6(a); Pool v. Ford Motor Co., 715 S.W.2d 629, 633-35 (Tex. 1986). An appellate court must sustain a factual sufficiency issue and remand the case for a new trial if the evidence, though amounting to more than a scintilla, is nonetheless too weak. See generally Vickery v. Vickery, 999 S.W.2d 342, 376 (Tex. 1999). While appellate courts are required to reverse a verdict that is not supported by sufficient evidence, a court of appeals may not then proceed to determine the facts. Remand, rather than rendition, is proper in that context. See generally Bay, Inc. v. Ramos, 139 S.W.3d 322, 330-31 (Tex. App.--San Antonio 2004, pet. denied); see also Pool, 715 S.W.2d at 632-35. If the evidence in the trial record is factually insufficient, a new trial must be granted.

The Trial Record

Wortham began her employment as an elementary school teacher in the early 1980s. Subsequently, she obtained master's degrees in School Administration (1989) and in Counseling and Development (1995). The State Board for Educator Certification certified her in those fields. For a time, Wortham worked as a counselor in private practice "on the side." In 1988, she began teaching at Amelia Elementary School. She also was involved in student extra-curricular programs. Wortham was the "technology lead teacher" at Amelia Elementary and the technology liaison between the campus and the district, and she has written curricula for BISD. When she filed her complaint with the TCHR in 1997, ⁽⁵⁾ she had been teaching for fourteen to fifteen years.

From 1996 to 1997, Wortham applied with BISD for over twenty counselor and assistant principal positions and one curriculum coordinator position. As we understand her brief, she challenges ten of those employment decisions. In her brief to this Court, Wortham asserts "she was treated in a disparate manner than African-American employees in that she was denied promotional opportunities because of her race, Caucasian." Wortham argues race is a motivating factor in BISD's promotion policies, and she says "[t]he decisions to place lesser qualified individuals in those positions at those campuses comports with Dr. Thomas' philosophy of finding the applicant who is the 'best fit' by considering race and culture of the student population to be served and the applicant."

BISD's written policy states that race shall not be used in hiring or promotion decisions. Wortham argues the testimony of Dr. Carrol Thomas, BISD's superintendent, reveals that race is a motivating factor in employment decisions and race was a motivating factor in the challenged decisions. In his letter responding to Wortham's Level 3 Grievance, Dr. Thomas stated BISD was looking for the "best fit" in personnel placement. In his testimony presented at trial, Dr. Thomas explained "best-fit" and his approach to hiring and promotion as follows:

Q. [Wortham's Attorney]: . . . Would you tell me what "best fit" means in your mind?

A. [Dr. Thomas]: "Best fit" means the person who would probably be able to do the best job at the particular campus or place, or whatever. It's just like Carrol Thomas. I think I'm an excellent fit for Beaumont Independent School District. I think I'd be a terrible fit if I was superintendent of Vidor. I just wouldn't fit there. I mean, it just wouldn't make -

Q. You used the example that you wouldn't be a good fit for Vidor. Why wouldn't you be a good fit for Vidor?

A. Because I have not had many experiences in working with a population similar to that at Vidor as much as I've had working with the population here in Beaumont.

Q. [Wortham's Attorney]: The personal experiences that you discussed concerning fits for employees, does race play a part in those personal experiences?

A. I think -- I think race would cause you to . . . get a certain experience level versus another, but it's not the only criteria.

Q. Have you ever stated that children on a particular campus would be best served by having administrators of their own culture?

A. No.

Q. Do you believe that to be true?

A. I think -- I think -- I think that's more true than not.

Q. Have you ever had discussions with your assistant superintendents about the issue of whether children on a particular campus would be best served by someone of their own culture?

A. Not to my knowledge, but . . . I've had plenty of conversations with staff and all about having -- being sure that you have a perfect fit -- or you have a good fit to the persons that you bring in, and that you have people that can meet and communicate with your community, communicate with your students, as well, teachers and people who can recruit students to your campus and everything else along that way.

Q. And your experience as a person and your culture plays a part in whether you will fit in a particular job?

A. I think your culture has a lot -- would play a part in you getting experience that would assist you in being successful in certain jobs.

Q. Have you had discussions with the board concerning the percentages of blacks or whites in the employment ranks at Beaumont Independent School District?

A. And I would say yes, when we got here, that concern has been discussed with me.

Q. And what was the concern?

A. The concern was the lack of blacks and the fact of the matter that -- were African-Americans being promoted.

Q. Did the board give you any direction to deal with the problem?

Q. Were you ever given any instructions that "We would" -- or comments made that "We would like to see the percentage of black employees be commensurate with the percentage of black students"?

A. I don't think that's ever come from the board. I think we had a -- what, the EEOC, or some kind of committee to come down here and saying that we need -- the comment or suggestion was we need to have more African-American employees.

Dr. Hubert Monroe, BISD's executive director of personnel, also testified as follows concerning promotions within the district:

Q. [Wortham's Attorney]: Have you ever had conversations with anyone regarding the need to promote minorities since Dr. Thomas has been the superintendent at B.I.S.D.?

A. [Dr. Monroe]. Yes. We had a civil rights review . . . about a year and a half ago. I'm not sure about the year on that. But it's been since he's been here. And the concern was that B.I.S.D. does not have enough minorities . . . on the board here in the district. And albeit . . . they were complimentary . . . in our efforts to try and move in that direction.

. . . .

Q. Okay. Would you agree that a child's education experience is enriched by associating daily with administrators of other races.

A. I think it can be.

Q. Would you say that B.I.S.D. has made a concerted effort to recruit more heavily at what are traditionally black universities within the past several years?

A. Are we interested in increasing the number of minorities in the district? Yes.

Dr. Harold Steward, former principal of Amelia Elementary where Wortham taught, testified as follows:

Q. [Wortham's Attorney]: Have you ever heard any B.I.S.D. administrator make comments regarding the need to promote more minorities?

A. [Dr. Steward]: To promote more minorities? I'm not in a position to hear those kinds of statements.

Q. So, you've never heard anyone at B.I.S.D. make comments along those lines?

A. The B.I.S.D. has said, "Evaluate and review your ethnic relationships, ratios and hire the best qualified person."

Q. Okay. And who at B.I.S.D. said that there was a need to review the ethnic ratios?

A. They might not have used those exact terms. The personnel director says always look at your -- your -- your student population, look at your staff population.

Terry Ingram, assistant superintendent for BISD and former West Brook High School

principal, testified as follows:

Q. [BISD's Attorney]. Mr. Ingram, are you aware of a state-wide effort for more recruitment of minority teachers?

A. [Ingram]. I am.

Q. When you hear the phrase "recruitment of minority hires," what does that mean to you?

A. Well, for me, it's saying -- normally it would be teaching positions. We're trying to get more African-American teachers, more Asian teachers, more Hispanic teachers into our district. Because we have an increase in the Hispanic population in our district, and we feel like that students can relate to those teachers a little bit better.

Q. But does that have anything to do with the way -- did that have anything to do with the lack of promotion or the reasons that you chose not to promote Linda Wortham?

A. No, it did not.

Four current or former principals, Lynn Cummins, Sybil Comeaux, Anita Watson, and Ingram indicated they were familiar with the "best fit" or "good fit" terminology. When asked at trial whether he had ever been told by Dr. Thomas "to hire a white person or a black person to fill a certain position," Ingram testified, "No, I have not." "I basically have tried to hire who the best candidate is for the job. It did not matter what race." He stated, "On my campus I've never addressed race as a best fit." Anita Watson, BISD's director of special education and former Amelia Elementary principal, testified Dr. Thomas's definition of "best fit" refers to the person who is going to work as a team player and who will bring success for the students on that campus. Watson testified she was never told "to do a best fit." Comeaux testified she has "never been instructed to hire any particular race. Our instructions are to get the best person for the job."

BISD argues Wortham did not demonstrate race was a motivating factor, because the school principals were the ones actually making the relevant employment decisions, and the principals indicated they did not consider race in making their promotion recommendations to Dr. Thomas. In its brief, BISD does not refer to or explain Dr. Thomas's testimony concerning race as a criteria, although Wortham relied on this testimony in jury argument and in her brief to this Court. BISD does not argue that its hiring and promotion policies represent a plan reasonably designed to end discriminatory school practices or a plan to incorporate work force diversity programs. See Tex. Lab. Code Ann. §§ 21.114, 21.121, 21.125(a) (Vernon 2006); see generally Grutter v. Bollinger, 539 U.S. 306, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003); Gratz v. Bollinger, 539 U.S. 244, 268-69, 123 S.Ct. 2411, 156 L.Ed.2d 257 (2003). Terry Ingram, assistant superintendent, testified the District's attempt to hire more minority teachers had nothing to do with the decision not to promote Linda Wortham.

Dr. Thomas explained the procedure for staffing decisions. Once BISD's personnel office screens the applicants and eliminates those not meeting the posting requirements, a school principal seeking to fill the position ultimately interviews the applicants. The process may also involve the Campus Education Improvement Committee in conjunction with the principal. Once the applicants complete the interview process, the principal makes a recommendation to the superintendent, who then makes a recommendation to the Board. The Board hires based upon the superintendent's recommendation. Under the process Dr. Thomas described, an applicant does not generally receive Dr. Thomas's consideration without first receiving the principal's recommendation.

Although the Board makes the final hiring determination after receiving Dr. Thomas's recommendation, Dr. Thomas testified the Board had never rejected any of his recommendations. Evidence was presented that the superintendent, not a principal, is the final authority in hiring and promoting decisions. A principal's recommendation goes to Dr. Thomas for his approval or rejection. As Dr. Steward explained in his response to Wortham's grievance, "It is not in the principal's job description nor is the authority granted for him to hire personnel for the Beaumont Independent School District." Cummins, former Vincent Middle School principal, testified the "superintendent has the final authority" regarding the placement of persons in counselor or assistant principal positions.

In addition to alleging BISD had a race-motivated promotion policy that was applied in a discriminatory manner to restrict her opportunities, Wortham also asserts her qualifications were superior to those of other applicants promoted instead of her. This evidence, she argues, is further proof race was a motivating factor in the decisions not to promote her. Her certifications at the time of the employment decisions were the following: Mid-management Administrator (grades PK - 12); Counselor (grades PK - 12); Elementary self-contained (grades 1 - 8); Elementary history (grades 1 - 8); and Kindergarten (grades PK - KG). Wortham presented evidence of her performance evaluations conducted from 1998 to 2003. Her ratings were either "proficient" or the top rating, "exceeds expectations," with the majority of the entries being "proficient"; the reviewers' comments were positive. None of the performance evaluations noted any problem with her performance.

The author of one of those evaluations was Dr. Steward, Wortham's former supervising principal. Dr. Steward testified Wortham was an outstanding teacher, and he thought she would make a "great" counselor. He stated, "She had good evaluations as a teacher." He testified he could place emotionally disturbed children in her classes, because with her private counseling experience, he felt she was the most qualified teacher to work with them. Regarding suggestions that Wortham did "not [get] along" with parents, Dr. Steward testified that "for the most part [he] found that all teachers get crossed one way or another with a parent[,]" and he attributed conflicts among the teachers themselves to personality issues. He further testified, "Ms. Wortham is a great teacher. Those other teachers are great teachers. They didn't always see things eye to eye." Dr. Steward indicated he never spoke to Wortham about a problem with patience, though he may have mentioned it to Dr. Monroe, BISD's personnel director. Steward indicated he did not find the patience issue to be of any great significance. He encouraged Wortham to apply for promotions in the District.

Wortham emphasized at trial that her certifications were permanent, not temporary. Of the employment decisions she challenged, six applicants had temporary certifications, and one had no certification in the field. Dr. Thomas explained temporary certification as follows:

The temporary certification is when TEA states that this person is certified and they're given this person five years to operate in that job. You know, and then after five years, if that person hasn't completely met -- or met all the requirements, then, that person can no longer function in that job.

Wortham explained that "[a]fter you have completed all the course work, then you sit for a state exam that you have to pass to get fully certified. . . . [Y]ou have a time period where you have to complete this stuff, and if you don't complete it within that time period, then your temporary certification will lapse."

Dr. Monroe, executive director of personnel, explained there is no temporary certification available for a counselor's position. As to an assistant principal's position, he testified he would prefer to have someone "fully certified" if all other things were equal. Terry Ingram, BISD assistant superintendent, explained temporary certification means the paperwork is completed, and the candidate is waiting to take the test. Sybil Comeaux, director of personnel for BISD, explained that those with temporary certification are certified and able to do the job, and the State Board of Education considers them certified. Both Comeaux and Ingram testified they had recommended promotions for white applicants holding temporary certificates. Ingram further explained that there was a time in "'94, '95," "when there was a lack of candidates, state wide, in certified people. So, as long as they were working toward it and had their hours, they would employ them."

BISD argues race played no part in the challenged employment decisions. ⁽⁶⁾ In a letter addressed to Wortham, Dr. Thomas indicated he discussed Wortham's "patience, cooperative spirit and attitude" with her at the December 1997 Level 3 grievance hearing. He testified that some BISD principals told him Wortham had not been promoted because of "attitude, personality, behaviors and those types of things." Of the principals Thomas named as sources of this information, only Ingram testified at trial, and he had not had any personal experience with Wortham.

Anita Watson, principal at Amelia Elementary from 1998 to 2004, testified Wortham demonstrated "inappropriate behaviors" at the end of the 2004 school year. Watson explained that at the conclusion of an ARD meeting, a parent stated her child was fearful of Wortham, and Wortham became "very upset[.]" Watson told Wortham that she "had to be able to address situations like that in a calm manner." Watson testified two parents requested the removal of their children from Wortham's class during the 2003-2004 school year. Three teachers complained they could not keep up with Wortham's pace in technology instruction. Watson thought Wortham lacked patience with their slowness in grasping the skills. Another teacher had difficulty accepting the change in Wortham's roles from teacher to counselor in 2004. Wortham explained the teacher was not following the testing guidelines and was unhappy about being required to do so. Apparently one teacher was in favor of using corporal punishment on emotionally disturbed children, and Wortham felt that alternate methods of punishment would be more effective. According to Watson, Wortham's problem was with "people skills." However, Watson agreed it is fairly common to receive complaints concerning teachers because teaching is a stressful occupation. Watson also testified that Wortham was an excellent teacher on whom she could count for extra-duty service or help. Wortham's asserted deficiencies, as testified to by Dr. Thomas and Ms. Watson, apparently occurred after the challenged employment decisions.

BISD presented the testimony of nine principals ⁽⁷⁾ to explain the 1996-97 employment decisions regarding Wortham. Wortham challenged the employment decisions of at least four of the nine, as well as those of principals BISD did not call as witnesses. Lynn Cummins, former Vincent Middle School principal, testified he did not know the applicant he recommended did not have either a temporary or permanent certificate in counseling. He explained that BISD's personnel office screens the applicants and sends the principals only the applications of persons who are certified. Cummins testified he recommended the candidate because she had taught his son, and Cummins knew her as a parent and fellow teacher. Describing her as a "very good fit" for the campus, Cummins maintained race played no part in his decision. He testified, "The prior counselor was a white female, and I had no preconceived desire for a black or white." Cummins stated, "What I was looking for was the person who would best meet the needs of my students in that diverse population, and would also be a good team player with my faculty."

Sybil Comeaux interviewed Wortham for counselor and assistant principal positions at Central High School. Comeaux testified she had never been instructed to hire any particular race. "Our instructions are to get the best person for the job." She testified BISD promoted white candidates with temporary certificates. Although Comeaux "felt [Wortham] was knowledgeable, . . . she still didn't present to me what I thought would be a good fit for the particular job to be assigned." Comeaux testified Wortham "came across" as feeling the students were "beneath" her and "she was probably being sent to save them, or something." Comeaux recommended an applicant of the same race as Wortham who was the "best fit" for the counselor position. Wortham did not challenge that promotion. Neither did Wortham challenge the promotion of an African-American applicant who had twenty-four years of teaching experience and was certified for the assistant principal's position. Wortham is not complaining of the positions at Central High School for which Ms. Comeaux interviewed her.

David Dunivant, former co-principal at Ozen High School, interviewed Wortham for positions at Ozen, but he did not remember any specifics about her interviews. Dunivant indicated he is not particularly impressed with an applicant who presents with a "proficient," rather than "exceeds expectations," rating. He testified BISD has never given him a directive to hire administrators of a certain race. He stated, "[W]e hired the individuals we hired based on their qualifications, and they were the best candidates for those jobs at that time." Dunivant testified race did not play a part in any of his hiring decisions for Ozen High School. Wortham is not complaining about his employment decisions.

Ava Colbert, principal at Homer Drive Elementary, interviewed Wortham for the assistant principal's job at Homer. Wortham does not challenge Colbert's employment decisions. Colbert recommended a white applicant who had worked at Homer as a curriculum coordinator, knew the staff and makeup of the community, and who had "great rapport with all of our teachers and staff members and parents." For another counselor position, Ms. Colbert recommended an African-American applicant who was recommended by her principal and had twenty-five years of teaching experience. Colbert testified the applicant's race had nothing to do with Colbert's recommendation of her for the counselor position. Colbert explained BISD had never told her to hire someone of a certain race.

Terry Ingram considered Wortham for two counselors' positions and an assistant principal's job at West Brook. He stated, "Ms. Wortham is a very good interview, as most people who interview are." Ingram stressed that the ability to "fit into the team" is an important attribute for any applicant. "[W]hen you interview, you're not just looking at qualifications, you're looking at how are they going to fit in with the team." He testified she had no secondary-level experience. Further, Ingram testified Wortham's performance evaluations, with predominantly "proficient" ratings, may not have measured up to the standard he wanted on his staff. Ingram indicated he had heard Wortham had possibly lost her temper with co-workers or with students and parents, but Ingram testified he never had any personal experience with Wortham that would indicate to him she would be a bad employee or bad counselor.

Tom Ammons, former principal of Austin Middle School, testified he interviewed Wortham for an assistant principal's position. He recalled that he was looking for someone with secondary-level experience. The applicant he recommended was African-American. She had been teaching for approximately nineteen years, had secondary-level experience, and was certified. He testified he did not recommend Wortham, because he felt experience with middle school behavior was important, and a person with elementary experience would not be equipped to deal with middle school discipline problems. Ammons indicated race was not a factor.

Clarence Francois, retired principal of French Elementary, testified he recommended promotion of an African-American applicant with a temporary certificate. Francois testified that the applicant for the assistant principal's job was a very experienced fourth grade teacher on his staff. "[S]he was real good with students, parents; and also she and I were able to get along. We had the same philosophy towards education. And she was a hard worker. And that is why I hired her." Francois testified he did not base his decision on race, and BISD never instructed him to hire on that basis.

Dr. Shirley Bonton, former principal at Pietzsch-MacArthur Elementary, testified she did not consider race when she recommended the promotion of an African-American applicant instead of Wortham. The candidate was certified, but she had no counseling experience. Wortham was certified, had twice the teaching experience, and had worked in private counseling. Although Dr. Bonton did not remember the specifics of the interview with Wortham, Bonton testified she considered "[e]xperience, communication skills, [and] problem-solving skills" in making employment recommendations. Dr. Bonton testified no supervisor in BISD had ever instructed her to consider race.

Wortham also challenged three other positions. One was an assistant principal's job at South Park Middle School. She testified the applicant recommended was an African-American who possessed a temporary certificate. Wortham testified this applicant's temporary certificate in mid-management "has lapsed, and now he has a temporary Assistant Principals certification." Wortham stated, "So he was not fully certified; still is not." Another challenged position was the assistant principal's job at Pietzsch-MacArthur Elementary. Rather than recommending Wortham for the position, the principal selected an African-American with a temporary certification; Wortham indicated this applicant's temporary certification lapsed in October 2003. With respect to another assistant principal's position at Lucas Elementary, Wortham testified an African-American applicant, who held a temporary certification and less teaching experience (three to five years), was recommended over Wortham.

Legal Sufficiency

In determining whether there is any evidence to support the jury's finding, an appellate court credits evidence which supports the finding if a reasonable and fair-minded jury could, and must disregard all contrary evidence that a reasonable and fair-minded jury could have disregarded. City of Keller, 168 S.W.3d at 827. A reasonable and fair-minded jury could infer from Dr. Thomas's testimony that race was one factor he considered in personnel placement decisions. As previously noted, BISD does not argue that his approach was part of a plan to end discriminatory school practices or to incorporate work force diversity programs. Furthermore, the jury heard testimony that BISD's attempt to hire minorities had nothing to do with the decisions not to promote Wortham.

There is evidence Dr. Thomas was, as a practical matter, the final authority in hiring and promoting. Dr. Thomas testified the Board had always approved his decisions. There is also evidence the principals made the initial selection of those to promote, and without that initial recommendation, a candidate generally would not reach Dr. Thomas for his approval or rejection. Some principals knew of Dr. Thomas's approach, although their interpretation of his policy differed from Dr. Thomas's stated explanation. Dr. Steward, a former BISD principal, testified BISD had, in substance, instructed him to evaluate ethnic relationships and ratios on his campus and hire the best-qualified person.

Wortham argues she was more qualified than some of those promoted instead of her; she had permanent certifications, while some applicants had only temporary certifications. There is evidence in the record that a temporary certification will lapse unless the applicant passes a test within a specified period of time, and the temporary certificates of two of the applicants promoted instead of Wortham did lapse. Dr. Monroe testified that he would prefer to have someone fully certified, if all other things are equal.

In her brief, Wortham challenges "the pervasive nature of the racial discrimination occasioned upon her[.]" Although she states that "direct evidence of racial animus is rare in employment claims," she maintains she presented such evidence through the testimony of Dr. Thomas, Dr. Monroe, and Dr. Steward. As detailed above, there is more than a scintilla of evidence supporting the jury's finding, though the supporting evidence seems particularly weak with respect to the principals' recommendation decisions. Under the legal sufficiency standard, BISD's argument that the jury finding has no evidentiary support must be rejected. See City of Keller, 168 S.W.3d at 827-28 (standard of review for legal sufficiency). BISD's no-evidence challenge is overruled.

Factual Sufficiency

BISD also argues the evidence supporting the "race-as-a-motivating factor" finding is factually insufficient. Under the standard of review for factual sufficiency, an appellate court weighs all the evidence in the trial record, and must weigh in the balance the evidence that conflicts with the jury's finding as well as the evidence supporting the finding. An appellate court views all the evidence for and against the jury's finding, and must set aside the verdict if the supporting evidence is so weak, or the evidence supporting the finding is so against the great weight and preponderance of the evidence, that the finding is clearly wrong and unjust. See Dyson, 692 S.W.2d at 457; Western Atlas Int'l, Inc., 930 S.W.2d at 784; see also Garza, 395 S.W.2d at 823.

The principals testified that race was not a factor in any of their promotion recommendations to Dr. Thomas. Generally, a principal, not Dr. Thomas, made the initial recommendation of a candidate for promotion, and without a principal's recommendation, Dr. Thomas did not consider an applicant. Though some principals had heard of Dr. Thomas's approach, they testified BISD never told them to hire or not hire a person of a certain race. The principals testified they looked for the person with the best qualifications. There is evidence in the record of some reasons the principals chose applicants other than Wortham. Those reasons include the choice of someone with middle school experience for a middle school position; the choice of one candidate who had taught the principal's child, so the principal knew the candidate personally; and the choice of someone who was already on staff on the principal's campus and shared his educational philosophy. BISD argues there is some testimony in the record suggesting Wortham lacked sufficient "people skills" or was impatient, though this testimony apparently concerned events occurring after the challenged employment decisions. The District has promoted Wortham to a counselor position.

The evidence indicates a person with temporary certification is recognized by the Texas Education Agency and BISD as certified and qualified to hold a job in that field for a prescribed period of time. Ingram testified that the permanent certification requirement was more relaxed in earlier years. The record also includes evidence that BISD hired, without regard to race, applicants who had temporary certifications during the time frame at issue. In her brief to this Court, Wortham identifies more than twenty positions she applied for and was denied, and she identifies ten of those positions as being filled by white applicants. She does not challenge those ten decisions.

In the factual sufficiency review, all the evidence is weighed, both for and against the jury's finding. The great weight of the testimony by all of the principals -- that race played no role in their decisions not to recommend Wortham and that their decisions were based on other considerations -- undercuts any significance of the superintendent's testimony. The evidence reveals that the superintendent generally did not make a promotion decision unless a principal had first made a recommendation to promote a candidate. Without additional proof, it does not necessarily follow from the superintendent's testimony that the principals violated BISD's written policy that race shall not be considered. Because of the insufficiency of the evidence linking race as a motivating factor to any of the ten specific challenged employment decisions, the jury finding on this trial record must be set aside.

BISD's factual sufficiency issue is sustained. We need not address the remaining issues as they would result in no greater relief than a new trial. The judgment is reversed, and the cause is remanded to the trial court for further proceedings.

REVERSED AND REMANDED.

_________________________________ DAVID GAULTNEY

Justice

Submitted on June 29, 2006

Opinion Delivered September 14, 2006

Before Gaultney, Kreger, and Horton, JJ.

1. Because one of the purposes of the Act is to promote federal civil rights policy under Title VII, Texas courts look to both Texas cases and analogous federal precedent for guidance. Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 476 (Tex. 2001).

2. Appellant does not challenge this definition.

3.

In 2004, six years after she filed suit, BISD promoted Wortham to a counselor position at Amelia Elementary School.

4.

In a discrimination case fully tried on the merits, the reviewing court does not engage in a McDonnell Douglas burden-shifting analysis, but inquires whether the evidence is legally sufficient to support the jury's ultimate finding. Canchola, 121 S.W.3d at 739; see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

5. See Wortham v. Beaumont Indep. Sch. Dist., No. 07-02-0017-CV, 2002 Tex. App. LEXIS 8302, at *6 (Tex. App.--Amarillo Nov. 21, 2002, no pet.) (not designated for publication).

6. BISD also asserts the evidence is legally and factually insufficient to show Wortham was "clearly more qualified" than those who received promotions. However, Wortham is not required to make this showing to establish an unlawful employment practice. See Little v. Tex. Dep't of Criminal Justice, 177 S.W.3d 624, 632-33 (Tex. App.--Houston [1st Dist. 2005, no pet.) (citing Julian v. City of Houston, 314 F.3d 721, 728 (5th Cir. 2002)). (Although pointing to clearly superior qualifications is one permissible way to show intentional discrimination, a plaintiff is not required to make this showing); but see Odom v. Frank, 3 F.3d 839, 845-46 (5th Cir. 1993) .

7. Some now have other BISD administrative positions.