IN THE TENTH COURT OF APPEALS
No. 10-07-00236-CV
EVELYN LITTLE, Appellant v.
TEXAS DEPT. OF CRIMINAL JUSTICE AND GARY JOHNSON EXECUTIVE DIRECTOR, Appellees
From the 278th District Court Walker County, Texas Trial Court No. 21,013C
MEMORANDUM OPINION
Evelyn Little appeals from a directed verdict entered against her in an
employment discrimination suit she filed against the Texas Department of Criminal
Justice and Gary Johnson, TDCJ’s Executive Director. See TEX. LAB. CODE ANN. Ch. 21
(Vernon 2006). Little contends that she was not hired for employment on multiple
occasions by TDCJ due to her disability. At the close of Little’s case-in-chief in a jury
trial, the trial court granted a directed verdict against Little and entered a judgment that
Little take nothing on her claims against both TDCJ and Johnson. Because we find that the trial court did not err by granting the directed verdict and that Little has waived her
complaint about the admission of her prior criminal history, we affirm the judgment of
the trial court.
Procedural History Relevant to This Appeal
Little filed suit against TDCJ, alleging that they had failed to hire her more than
twenty times from 1995 to 2002 for employment. The trial court initially granted a
motion for summary judgment in favor of TDCJ; however, the summary judgment was
eventually reversed by the Texas Supreme Court as to the issue of whether Little was
disabled, and by our coordinate Court as to the issue of whether Little had raised a fact
question regarding TDCJ’s articulated reasons for not hiring Little and pre-text. See
Little v. Tex. Dep’t of Crim. Justice, 148 S.W.3d 374 (Tex. 2004); Little v. Tex. Dep’t of Crim.
Justice, 177 S.W.3d 324 (Tex. App.—Houston [14th Dist.] 2005, no pet.). The cause was
remanded to the trial court and a jury trial commenced.
At the close of Little’s case-in-chief, TDCJ made a motion for a directed verdict.
The trial court granted the motion and discharged the jury. The trial court entered a
judgment denying Little’s claims with prejudice.
Directed Verdict
In reviewing the grant or denial of a directed verdict, we follow the standards for
assessing the legal sufficiency of the evidence. City of Keller v. Wilson, 168 S.W.3d 802,
809-28 (Tex. 2005). We must determine whether there is any evidence of probative force
to raise a fact issue on the question presented. Bostrom Seating, Inc. v. Crane Carrier Co.,
140 S.W.3d 681, 684 (Tex. 2004). We will credit the favorable evidence if reasonable
Little v. TDCJ Page 2 jurors could and disregard the contrary evidence unless reasonable jurors could not.
City of Keller, 168 S.W.3d at 827. “A directed verdict is warranted when the evidence is
such that no other verdict can be rendered and the moving party is entitled, as a matter
of law, to judgment.” Byrd v. Delasancha, 195 S.W.3d 834, 836 (Tex. App.—Dallas 2006,
no pet.). However, if there is any evidence of probative value on any theory of
recovery, a directed verdict is improper and the case must be remanded for the jury to
determine that issue. See Szczepanik v. First S. Trust Co., 883 S.W.2d 648, 649 (Tex. 1994).
Discrimination in Hiring
In employment discrimination cases that have not been fully tried on the merits,
we apply the burden-shifting analysis established by the United States Supreme Court.
Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex. 2003). When a discrimination
case has been fully tried on its merits, however, “we need not parse the evidence into
discrete segments corresponding to a prima facie case, an articulation of a legitimate,
nondiscriminatory reason for the employer’s decision, and a showing of pretext.”
Rutherford v. Harris County, Tex., 197 F.3d 173, 181 (5th Cir. 1999) (quoting Travis v. Bd. of
Regents, 122 F.3d 259, 263 (5th Cir. 1997)). We instead, determine whether the evidence
is sufficient to support the judgment. See Rutherford, 197 F.3d at 180-81; Canchola, 121
S.W.3d at 739.
Under Texas Labor Code section 21.051, an employer commits an unlawful
employment practice if because of a disability, the employer “fails or refuses to hire an
individual, discharges an individual, or discriminates in any other manner against an
individual in connection with compensation or the terms, conditions, or privileges of
Little v. TDCJ Page 3 employment.” TEX. LAB. CODE ANN. § 21.051(1) (Vernon 2006). The Texas Legislature
modeled chapter 21 of the Texas Labor Code after federal law for the express purpose of
carrying out the policies of Title VII of the Civil Rights Act of 1964 and its
subsequent amendments. Id. § 21.001(1); Herbert v. City of Forest Hill, 189 S.W.3d 369,
374 (Tex. App.—Fort Worth 2006, no pet.); Shear Cuts, Inc. v. Littlejohn, 141 S.W.3d 264,
269 (Tex. App.—Fort Worth 2004, no pet.). Consequently, when reviewing an issue
brought under chapter 21, we may look not only to cases involving the state statute, but
also to cases interpreting the analogous federal provisions. Caballero v. Cent. Power &
Light Co., 858 S.W.2d 359, 361 (Tex. 1993); Herbert, 189 S.W.3d at 374-75; Shear Cuts, Inc.,
141 S.W.3d at 269.
In order to establish a prima facie case of discrimination in the context of a denial
of an employment position, Little was required to show that (1) she is a member of a
protected class, (2) she applied for and was qualified for the position, (3) despite her
qualifications, she was rejected, and (4) after she was rejected, the position remained
open and the employer continued to seek applicants with her qualifications. See Romo v.
Tex. Dep't of Transp., 48 S.W.3d 265, 270 (Tex. App.—San Antonio 2001, no pet.). In
order to prove causation, Little must establish that her disability “was a motivating
factor for an employment practice, even if other factors also motivated the practice….”
TEX. LAB. CODE ANN. § 21.125(a) (Vernon 2006); Quantum Chem. Corp. v. Toennies, 47
S.W.3d 473, 479-80 (Tex. 2001).
Little complains that the evidence demonstrated that the sole witness that she
called other than herself testified that he considered her disability in determining if she
Little v. TDCJ Page 4 would be able to do the job and that he “falsified interpretation of [Little’s] job
applications.” She does not address the prima facie case elements required. Ronald
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE TENTH COURT OF APPEALS
No. 10-07-00236-CV
EVELYN LITTLE, Appellant v.
TEXAS DEPT. OF CRIMINAL JUSTICE AND GARY JOHNSON EXECUTIVE DIRECTOR, Appellees
From the 278th District Court Walker County, Texas Trial Court No. 21,013C
MEMORANDUM OPINION
Evelyn Little appeals from a directed verdict entered against her in an
employment discrimination suit she filed against the Texas Department of Criminal
Justice and Gary Johnson, TDCJ’s Executive Director. See TEX. LAB. CODE ANN. Ch. 21
(Vernon 2006). Little contends that she was not hired for employment on multiple
occasions by TDCJ due to her disability. At the close of Little’s case-in-chief in a jury
trial, the trial court granted a directed verdict against Little and entered a judgment that
Little take nothing on her claims against both TDCJ and Johnson. Because we find that the trial court did not err by granting the directed verdict and that Little has waived her
complaint about the admission of her prior criminal history, we affirm the judgment of
the trial court.
Procedural History Relevant to This Appeal
Little filed suit against TDCJ, alleging that they had failed to hire her more than
twenty times from 1995 to 2002 for employment. The trial court initially granted a
motion for summary judgment in favor of TDCJ; however, the summary judgment was
eventually reversed by the Texas Supreme Court as to the issue of whether Little was
disabled, and by our coordinate Court as to the issue of whether Little had raised a fact
question regarding TDCJ’s articulated reasons for not hiring Little and pre-text. See
Little v. Tex. Dep’t of Crim. Justice, 148 S.W.3d 374 (Tex. 2004); Little v. Tex. Dep’t of Crim.
Justice, 177 S.W.3d 324 (Tex. App.—Houston [14th Dist.] 2005, no pet.). The cause was
remanded to the trial court and a jury trial commenced.
At the close of Little’s case-in-chief, TDCJ made a motion for a directed verdict.
The trial court granted the motion and discharged the jury. The trial court entered a
judgment denying Little’s claims with prejudice.
Directed Verdict
In reviewing the grant or denial of a directed verdict, we follow the standards for
assessing the legal sufficiency of the evidence. City of Keller v. Wilson, 168 S.W.3d 802,
809-28 (Tex. 2005). We must determine whether there is any evidence of probative force
to raise a fact issue on the question presented. Bostrom Seating, Inc. v. Crane Carrier Co.,
140 S.W.3d 681, 684 (Tex. 2004). We will credit the favorable evidence if reasonable
Little v. TDCJ Page 2 jurors could and disregard the contrary evidence unless reasonable jurors could not.
City of Keller, 168 S.W.3d at 827. “A directed verdict is warranted when the evidence is
such that no other verdict can be rendered and the moving party is entitled, as a matter
of law, to judgment.” Byrd v. Delasancha, 195 S.W.3d 834, 836 (Tex. App.—Dallas 2006,
no pet.). However, if there is any evidence of probative value on any theory of
recovery, a directed verdict is improper and the case must be remanded for the jury to
determine that issue. See Szczepanik v. First S. Trust Co., 883 S.W.2d 648, 649 (Tex. 1994).
Discrimination in Hiring
In employment discrimination cases that have not been fully tried on the merits,
we apply the burden-shifting analysis established by the United States Supreme Court.
Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex. 2003). When a discrimination
case has been fully tried on its merits, however, “we need not parse the evidence into
discrete segments corresponding to a prima facie case, an articulation of a legitimate,
nondiscriminatory reason for the employer’s decision, and a showing of pretext.”
Rutherford v. Harris County, Tex., 197 F.3d 173, 181 (5th Cir. 1999) (quoting Travis v. Bd. of
Regents, 122 F.3d 259, 263 (5th Cir. 1997)). We instead, determine whether the evidence
is sufficient to support the judgment. See Rutherford, 197 F.3d at 180-81; Canchola, 121
S.W.3d at 739.
Under Texas Labor Code section 21.051, an employer commits an unlawful
employment practice if because of a disability, the employer “fails or refuses to hire an
individual, discharges an individual, or discriminates in any other manner against an
individual in connection with compensation or the terms, conditions, or privileges of
Little v. TDCJ Page 3 employment.” TEX. LAB. CODE ANN. § 21.051(1) (Vernon 2006). The Texas Legislature
modeled chapter 21 of the Texas Labor Code after federal law for the express purpose of
carrying out the policies of Title VII of the Civil Rights Act of 1964 and its
subsequent amendments. Id. § 21.001(1); Herbert v. City of Forest Hill, 189 S.W.3d 369,
374 (Tex. App.—Fort Worth 2006, no pet.); Shear Cuts, Inc. v. Littlejohn, 141 S.W.3d 264,
269 (Tex. App.—Fort Worth 2004, no pet.). Consequently, when reviewing an issue
brought under chapter 21, we may look not only to cases involving the state statute, but
also to cases interpreting the analogous federal provisions. Caballero v. Cent. Power &
Light Co., 858 S.W.2d 359, 361 (Tex. 1993); Herbert, 189 S.W.3d at 374-75; Shear Cuts, Inc.,
141 S.W.3d at 269.
In order to establish a prima facie case of discrimination in the context of a denial
of an employment position, Little was required to show that (1) she is a member of a
protected class, (2) she applied for and was qualified for the position, (3) despite her
qualifications, she was rejected, and (4) after she was rejected, the position remained
open and the employer continued to seek applicants with her qualifications. See Romo v.
Tex. Dep't of Transp., 48 S.W.3d 265, 270 (Tex. App.—San Antonio 2001, no pet.). In
order to prove causation, Little must establish that her disability “was a motivating
factor for an employment practice, even if other factors also motivated the practice….”
TEX. LAB. CODE ANN. § 21.125(a) (Vernon 2006); Quantum Chem. Corp. v. Toennies, 47
S.W.3d 473, 479-80 (Tex. 2001).
Little complains that the evidence demonstrated that the sole witness that she
called other than herself testified that he considered her disability in determining if she
Little v. TDCJ Page 4 would be able to do the job and that he “falsified interpretation of [Little’s] job
applications.” She does not address the prima facie case elements required. Ronald
Kelly, a former supervisor with TDCJ, testified that he had been involved with several
of Little’s applications and interviews. He admitted to noticing her limp and that he
considered everything that she had put on her applications because it was necessary for
determining who to select. Kelly also testified that he did not consider her disability at
all, and was not allowed to inquire about accommodations until she had been selected
for the position.
However, Little presented no evidence as to whether the position remained open
after her interview and TDCJ continued to seek applicants with her qualifications, or
whether the persons who were ultimately hired for the positions for which she applied
but was not hired were more or less qualified than she was for the specific position for
which she had applied.1 We find that the trial court did not err by granting the motion
for directed verdict and entering judgment against Little. We overrule this issue.
Admission of Prior Convictions
Little complains that the trial court erred by admitting evidence of her prior
convictions pursuant to rules of evidence 404(b) and 609. See TEX. R. EVID. 404(b) & 609.
However, she did not object at any time to the trial court about the admissibility of her
criminal history and in fact, affirmatively stated that she had no objection to the
1 In her response to the motion for summary judgment filed in this action, Little produced significant substantive evidence of her many attempts to be hired by TDCJ, including documentary and deposition evidence. See Little v. Tex. Dep’t of Crim. Justice, 148 S.W.3d 374 (Tex. 2004); Little v. Tex. Dep’t of Crim. Justice, 177 S.W.3d 324 (Tex. App.—Houston [14th Dist.] 2005, no pet.). However, this evidence was not admitted at trial, nor were any of the witnesses called to testify regarding her interviews and qualifications other than Kelly.
Little v. TDCJ Page 5 evidence. To preserve error for review, a litigant must object and state the grounds for
the ruling sought from the trial court with sufficient specificity to make the court aware
of the complaint. See TEX. R. APP. P. 33.1(a)(1)(A). Because Little made no objection to
the trial court, this complaint is not preserved and there is nothing for us to review. See
id. We overrule this issue.
Conclusion
We find that the trial court did not err by granting the motion for directed verdict
and that the complaint regarding Little’s prior convictions was waived. We affirm the
judgment of the trial court.
TOM GRAY Chief Justice
Before Chief Justice Gray, Justice Reyna, and Justice Davis Affirmed Opinion delivered and filed May 12, 2010 [CV06]
Little v. TDCJ Page 6