Coastal Mart, Inc. v. Hernandez

76 S.W.3d 691, 2002 Tex. App. LEXIS 2783, 2002 WL 596838

• Court: Court of Appeals of Texas
• Decided: April 18, 2002
• Docket: 13-00-347-CV
• Status: Published

Opinions

OPINION

Opinion by

Chief Justice VALDEZ.

Alfredo Hernandez, Jr. sued Coastal Mart, Inc. (“Coastal”) for gender-based discrimination under the Texas Commission on Human Rights Act (“TCHRA”) after Coastal terminated him and hired a woman to replace him. See Tex. Lab.Code Ann. §§ 21.001-21.556 (Vernon 1996 & Supp.2002). The jury found for Hernandez, and the trial court entered judgment on the verdict. Through eight issues Coastal challenges: (1-4) the legal and factual sufficiency to support the jury’s findings; (5-6) the legal and factual sufficiency of damages awarded; and (7-8) the attorney’s fees that were awarded. We affirm.

Facts

In July, 1990, Hernandez began work as a cashier in a Coastal Mart Store in Edin-burg. After two months he was promoted to assistant manager and later to store manager. After managing the Edinburg store for two and one-half years he was transferred to manage another store in McAllen. In August, 1994, Robert Flores (“Flores”) became the area sales manager for Hernandez’s area and supervised Hernandez. In early 1995, Flores gave him two awards for his work at the McAllen store.

Prior to Hernandez’s termination, Flores made various assertions concerning his preference for a female to fill Hernandez’s position. Flores also admitted a preference for female managers. Armando Vasquez, a co-worker, overheard similar comments made by Flores. Specifically, he heard Flores comment “how a female could manage the store better.” On other occasions he heard Flores state “how a female could keep the store organized and clean.” Hernandez was terminated on June 15,1995.

Procedural History

On December 11, 1996, Hernandez sued Coastal and Flores for violations of the TCHRA, alleging discrimination based on gender. The jury found that gender was a “motivating factor” in Coastal’s decision to terminate Hernandez and awarded $135,000.00 in compensatory damages. The trial court reduced this figure to $128,000.00 and awarded $41,088.64 in prejudgment interest, and $32,535.25 in attorney’s fees.

Arguments

A. Legal and Factual Sufficiency

Appellant’s first four issues challenge the legal and factual sufficiency of the evidence.

When a party attacks the factual sufficiency of an adverse finding on an issue on which he has the burden of proof, he must demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex.2001). The court of appeals must consider and weigh all of the evidence, and can set aside a verdict only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Id.

When we review a legal sufficiency challenge, we must consider all the evidence in a light favorable to the party in whose favor the verdict was rendered, and every reasonable inference raised by the evidence is to be indulged in that party’s favor. Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex.1998); Hines v. Comm’n for Lawyer Discipline, 28 S.W.3d 697, 701 (Tex.App.-Corpus Christi 2000, no pet.). A legal sufficiency point may only be sustained when the record discloses: (1) a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; and (4) the evidence established conclusively the opposite of the vital fact. Juliette Fowler Homes, Inc. v. Welch Assocs., 793 S.W.2d 660, 666 n. 9 (Tex.1990). If there is more than a scintilla of evidence to support the finding, the legal sufficiency challenge fails. Formosa, 960 S.W.2d at 48; Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex.1987).

The applicable question concerning Coastal’s termination of Hernandez’s employment reads as follows:

Question 1:

Was gender a motivating factor in Coastal Mart, Inc.’s decision to discharge Alfredo Hernandez, Jr.?

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 for an employment decision.

Answer “Yes” or “No.”

Section 21.051 of the Texas Labor Code provides that an “employer commits an unlawful employment practice if because of ... sex ... the employer ... discharges an individual.... ” Tex. Lab.Code Ann. § 21.051(1) (Vernon Supp.2002). An unlawful employment practice is established when the complainant demonstrates that sex was a motivating factor for an employment practice. Tex. Lab.Code Ann. § 21.125(a) (Vernon Supp.2002).

The TCHRA is modeled after federal civil rights law. See NME Hosps., Inc. v. Rennets, 994 S.W.2d 142, 144 (Tex.1999). One express purpose of the TCHRA is to “provide for the execution of the policies of Title VII of the Civil Rights Act of 1964 and its subsequent amendments.” Tex. Lab.Code Ann. § 21.001(1) (Vernon Supp 2002). The TCHRA purports to correlate “state law with federal law in the area of discrimination in employment.” Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483, 485 (Tex.1991). Thus, in light of the legislature’s express purpose, we look to analogous federal precedent for guidance when interpreting the Texas Act. See NME Hosps., Inc. v. Rennets, 994 S.W.2d 142, 144 (Tex.1999).

The United States Supreme Court has held that Title VII protects an employee from reverse discrimination, that is, employer discrimination against a member of a historically favored group. McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 280, 96 S.Ct. 2574, 49 L.Ed.2d 493 (1976). An employer’s decision to terminate a person’s employment violates the TCHRA when that decision was based on sex, whether that sex be male or female.

See Martinez v. El Paso County, 710 F.2d 1102, 1105-06 (5th Cir.1983) (discussing Title VII); see also Byers v. Dallas Morning News, Inc., 209 F.Bd 419, 425 (5th Cir.2000) (holding that an employer’s decision to terminate and individual’s employment based on race is a violation of Title VII, regardless of whether that person is white or black).

In review of Coastal Mart’s appeal, the dissent focuses on the McDonnell Douglas burden-shifting scheme. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under that framework, the dissent examines a three step process, in which: (1) the plaintiff proves his prima facie case by a preponderance of the evidence; (2) the defendant rebuts the presumption of intentional discrimination arising from the prima facie case by articulating legitimate, non-discriminatory reasons for the challenged action; and (3) the plaintiff counters by offering evidence that the legitimate, non-discriminatory reasons are really a pretext for discrimination. Casarez v. Burlington Northem/Santa Fe Co., 193 F.3d 334, 337 (5th Cir.1999) (footnote and citations omitted).

However, when a case has been fully tried on its merits, as here, we do not focus on the burden shifting scheme described above. Rubinstein v. Adm’rs of Tulane Educ. Fund, 218 F.3d 392, 402-03 (5th Cir.2000); Rutherford v. Harris County, 197 F.3d 173, 180 (5th Cir.1999). Once the case has been submitted to the jury, “the adequacy of a party’s showing at any particular stage of the McDonnell Douglas ritual is unimportant.” Travis v. Bd. of Regents of Univ. of Texas Sys., 122 F.3d 259, 263 (5th Cir.1997) (quoting Molnar v. Ebasco Constructors, Inc., 986 F.2d 115, 118 (5th Cir.1993)). We need not parse the evidence into discrete segments. Rubinstein, 218 F.3d at 402. “Instead, we inquire whether the record contains sufficient evidence to support the jury’s ultimate findings.” Smith v. Berry Co., 165 F.3d 390, 394 (5th Cir.1999) (citations omitted).

For Hernandez to prevail in this employment discrimination case, he, as a Title VII plaintiff, bears the burden of proving not only that the employer’s “purported reasons for taking an adverse employment action are pretextual, but also that the employer engaged in illegal discrimination.” Travis, 122 F.3d at 263. We review the record to determine whether there is sufficient evidence to permit a reasonable jury to find that Coastal Mart terminated Hernandez’s employment because he is male and that its stated reasons for not doing so are pretextual. See Rutherford, 197 F.3d at 181 (examining the evidence favorably to the verdict so as to determine whether the plaintiff introduced sufficient evidence to permit a reasonable jury to find that the defendant promoted someone else due to their gender); see also Krystek v. Univ. of S. Mississippi, 164 F.3d 251, 256 (5th Cir.1999).

Regarding the evidence introduced at trial, we recognize that a defendant’s stray remarks may be sufficient evidence of discrimination if the comments are: (1) related to the protected class of persons of which the plaintiff is a member; (2) proximate in time to determinations; (3) made by an individual with authority over the employment decision at issue; and (4) related to the employment decision at issue. Wal-Mart Stores, Inc., v. Bertrand, 37 S.W.3d 1, 10 (Tex.App.-Tyler 2000, pet. denied).

Viewing the evidence favorably to the verdict, we hold that Hernandez introduced sufficient evidence to support the verdict. The record demonstrates a plethora of evidence regarding gender discrimination. First, Hernandez testified that he overheard Flores, the district manager who terminated Hernandez’s employment, state that a female would keep the store cleaner and better organized. Second, Hernandez testified that Flores stated that he preferred having more female managers because females did a better job than males. Third, Armando Vasquez testified that he overheard Flores state that a female could manage the store better than he could. Fourth, testimony was admitted showing that Flores made comments that he was spending a lot of time in Brownsville because there was a nice-looking female at one of the stores. Fifth, evidence was introduced at trial showing Flores’s comments that he preferred a woman for the job and his subsequent replacement of Hernandez’s position with a woman. Sixth, the record contains a separation notice in which Flores writes that the failure to maintain “a clean and organized office and facility” was a basis for termination.

These remarks regarding a woman’s preferable performance directly correspond with Flores’s decision to terminate Hernandez. They were made in light of Flores’s written remarks in the separation agreement and were done so in proximate time to the determination to terminate Hernandez’s employment. We further recognize that they were made by Flores, a person with the ability to affect Hernandez’s employment status.

Accordingly, this evidence supports a holding that Flores’s remarks were not merely remote assertions but rather, were related to Flores’s decision to terminate Hernandez’s employment. In light of this evidence, we hold that “reasonable persons could differ in their interpretation of the evidence, and the facts and reasonable inferences would permit reasonable jurors” to find in Hernandez’s favor. See Rutherford, 197 F.3d at 182. As such, we hold that there is more than a scintilla of evidence to support the jury’s findings. Formosa, 960 S.W.2d at 48; Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex.1987). We further hold that the evidence is not so weak nor are the jury’s findings so against the great weight and preponderance of the evidence that they are clearly wrong and unjust. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex.2001).

We further overrule Coastal’s contention that it should have been granted a motion for judgment as a matter law. We do so in light of our overruling its legal sufficiency argument. This is because “a motion for judgment as a matter of law ... in an action tried by jury is a challenge to the legal sufficiency of the evidence supporting the jury’s verdict.” Rubinstein, 218 F.3d at 402-03. We also overrule Coastal’s remaining contentions arguing about the amount of evidence presented concerning other non-discriminatory reasons for Hernandez’s termination.

Coastal points to evidence showing non-pretextual reasons for Hernandez’s termination; namely, concerns with bookkeeping, customer relations, vendor relations, employee relations, and reporting. This evidence, although insightful, is not controlling in this situation since our primary inquiry concerns “whether the record contains sufficient evidence to support the jury’s ultimate findings.” Smith v. Berry Co., 165 F.3d 390, 394 (5th Cir.1999). As we have overruled appellant’s sufficiency of the evidence challenges and its remaining contentions, appellant’s first four points of error are overruled.

B. Damages

Coastal’s fifth and sixth points of error contest the damages awarded for back pay. Coastal’s main contention argues that there is insufficient evidence to support the back pay Hernandez was awarded because he failed to mitigate damages when he voluntarily left his employment at Wal-Mart, to assist in the care of an ill brother. They further argue that Hernandez’s claim that he was unable to find unemployment after his position at Wal-Mart is “not credible.”¹

We review determinations of whether a claimant used reasonable diligence in attaining and maintaining substantially similar employment as a finding of fact, reversible only if clearly erroneous. Rhodes v. Guiberson Oil Tools, 82 F.3d 615, 621 (5th Cir.1996); see also NME Hosps., Inc. v. Rennels, 994 S.W.2d 142, 144 (Tex.1999). (opining that we look to analogous federal precedent for guidance when interpreting the Texas Act). As such, if the trial court’s findings are plausible in light of the evidence presented, we may not reverse its decision even if we would have reached a different conclusion. Anderson v. Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). A wrongfully discharged employee has a duty to mitigate damages by making a good faith effort to obtain and retain employment. Ford Motor Co. v. Equal Employment Opportunity Comm’n, 458 U.S. 219, 231-34, 102 S.Ct. 3057, 73 L.Ed.2d 721 (1982). Mitigation is a defensive issue upon which Coastal bore the burden of proof at trial. Id. Generally, the reasonableness of plaintiff’s explanation for rejecting a job offer, and the adequacy of efforts to mitigate are fact questions properly left to the jury. Id.

At trial, evidence concerning mitigation was presented by both sides. Coastal’s expert witness testified that a person in Hernandez’s position should have been able to find a job within a week and a half at most, and that he should have been able to obtain an equivalent position with equivalent earning potential within a year and a half. Hernandez testified concerning his efforts to obtain employment and retain employment following his discharge until trial. He testified that he tried unsuccessfully to find a job the entire time he was unemployed.

After reviewing the record, we hold that there was no clear error in finding that Hernandez made a reasonable effort to mitigate damages and hold that the jury’s findings were plausible in fight of the evidence presented. Anderson, 470 U.S. at 573-74, 105 S.Ct. 1504. Regarding Coastal’s argument that Hernandez’s testimony was “not credible,” we hold that such conflicts in credibility are matters for the jury, and as such we will not disturb those findings. Ford, 458 U.S. at 231-34, 102 S.Ct. 3057.

Appellant’s fifth and sixth points of error are overruled.

C. Attorney’s Fees

Coastal through its seventh and eighth issues challenges the attorney’s fees that were awarded because (1) they were awarded despite Hernandez’s failure to submit an issue for fees and (2) Hernandez failed to timely disclose witnesses as to attorney’s fees.

Coastal argues that the trial judge erred in making a finding on attorney’s fees because the award of attorney’s fees is an issue that must be submitted to a jury. However, when a claim is made based on employment discrimination under the Texas Commission on Human Rights Act, attorney’s fees may be awarded as part of the cost. Tex. Lab.Code Ann. § 21.259(a) (Vernon Supp.2002) (providing that “a court may allow the prevailing party, other than the commission, a reasonable attorney’s fees as part of the costs”); Gorges Foodservice, Inc. v. Huerta, 964 S.W.2d 656, 673 (Tex.App.-Corpus Christi 1997, no pet.). Furthermore, the trial court is the proper authority to determine and award costs, including attorney’s fees authorized as costs under Chapter 21 of the Texas Labor Code. Gorges, 964 S.W.2d at 673; Borg-Wamer Protective Servs. Corp. v. Flores, 955 S.W.2d 861, 870 (Tex.App.-Corpus Christi 1997, no pet.).

Accordingly, we hold that the trial court did not err in awarding attorneys to the prevailing party in this suit.

Coastal’s final complaint argues that the award of attorney’s fees is erroneous because Hernandez’s expert’s were untimely designated and as such there is no evidence to support the award of such fees. They argue that Hernandez’s disclosure of experts to testify regarding attorney fees on June 18, 1999, was untimely because the trial was set for July 7,1999.

This analysis fails to take into account the fact that the trial date was reset. When the trial setting is rescheduled, a party may supplement its answers to discovery. See, e.g., Texas Tech Univ. Health Sciences Ctr. v. Apodaca, 876 S.W.2d 402, 410 (Tex.App.-El Paso 1994, writ denied). Under Texas Rule of Civil Procedure 195.2, “a party must designate experts ... by the later of the following two dates: 30 days after the request is served, or (a) with regard to all experts testifying for a party seeking affirmative relief, 90 days before the end of the discovery period.” Tex.R. Civ. P. 195.2. This trial began in October 1999, and Hernandez responded to Coastal’s requests for disclosure on June 17, 1999. Thus Hernandez’s response was given in compliance with the 90 day rule and as such comported with rule 195.2.

Appellant’s final two points of error are overruled.

We affirm the judgment of the trial court.

Dissenting opinion by Justice DORSEY.

Dissenting Opinion by

1 . While Coastal's heading for this point of error challenges the legal and factual sufficiency of the damages awarded, the argument in the brief addresses only the issue of mitigation with no references to the record concerning any other arguments. As such we will only address the issue of mitigation of damages. Tex.R.App. P. 38.1(h)