Ancira Enterprises, Inc. v. Fischer

• Decision Date: 16 June 2005
• Docket Number: No. 03-03-00498-CV.,03-03-00498-CV.
• Citation: 178 S.W.3d 82
• Parties: ANCIRA ENTERPRISES, INCORPORATED and Ancira GMC Trucks and Motor Homes, Inc., Appellants, v. Frances FISCHER and Law Office of Rique D. Bobbitt,<SMALL><SUP>1</SUP></SMALL> Appellees.
• Court: Texas Supreme Court

178 S.W.3d 82

ANCIRA ENTERPRISES, INCORPORATED and Ancira GMC Trucks and Motor Homes, Inc., Appellants, v. Frances FISCHER and Law Office of Rique D. Bobbitt,¹ Appellees.

No. 03-03-00498-CV.

Court of Appeals of Texas, Austin.

June 16, 2005.

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Cathy J. Sheehan, Les E. Katona, Plunkett & Gibson, Inc., San Antonio, for appellants.

Juan Francisco Lopez Jr., Austin, for appellee Frances Fischer.

Frances Fischer, Temple, pro se.

Charles E. Lance, Cameron, for appellee Law Office of Rique D. Bobbitt.

Before Justices B.A. SMITH, PURYEAR and PEMBERTON.

OPINION

BOB PEMBERTON, Justice.

This is an appeal from a judgment on a jury verdict finding Ancira Enterprises, Incorporated (Ancira Enterprises) and Ancira GMC Trucks and Motor Homes, Inc. (Ancira GMC) liable for retaliatory discharge in violation of the Texas Commission on Human Rights Act (TCHRA). See Tex. Lab.Code Ann. § 21.001-.262 (West 1996 & Supp.2004-05). The judgment further held Ancira GMC and Ancira Enterprises jointly and severally liable to pay appellee, Frances Fischer, back pay, compensatory damages, punitive damages, attorney's fees, and prejudgment and postjudgment interest. See id. §§ 21.2585, .259 (West 1996). On appeal, Ancira Enterprises and Ancira GMC argue that Fischer failed to prove that either entity met the statutory definition of "employer" under the TCHRA and that the evidence was legally insufficient to support the award of punitive damages. Finding sufficient evidence to support both TCHRA liability and punitive damages, we affirm the judgment against Ancira GMC. However, because Fischer failed to adduce legally sufficient evidence that Ancira Enterprises is an employer subject to the TCHRA, we reverse and render a take-nothing judgment in its favor.

BACKGROUND

Ancira Enterprises and Ancira GMC are among several entities under the common ownership of Ernesto Ancira that, collectively, have over 700 employees. Ancira GMC is an automobile dealership. Ancira Enterprises provides certain administrative services, including human resources services, for ten Ancira dealerships including Ancira GMC.

Beginning in 1997, Fischer worked at the Temple location of Ancira GMC. She was employed in the dealership's service department as a "technician flagger," a job that entailed "flagging" on repair orders the time that Ancira GMC's technicians worked on each job and either sending the order back to the repair dispatcher or preliminarily billing the order. The evidence at trial was disputed concerning the subsequent events from which this appeal arose.

Fischer testified that, beginning in 1997, she experienced a hostile work environment because of racial slurs, sexual advances, and sexually explicit comments made by other employees and managers. In February and April 1999, Fischer notified management that certain technicians in the service department were placing their service number on repair orders for work they did not perform, in effect stealing commission from other employees. Soon after reporting this conduct, Fischer testified, she began to be treated worse by management, including getting yelled at and, unlike other employees, being prohibited from listening to radio stations of her choice or lighting scented candles to eliminate offensive odors in the service area. Fischer also recounted that, for a period of time, she and another employee lost their right to take breaks.² Fischer also claimed that other employees often made sexually suggestive comments to Fischer; made comments regarding the race of men that she and her daughter dated; and defaced, in an obscene and racist manner, pictures which were displayed in her office. Fischer repeatedly complained to management, including submitting a written complaint dated September 27, 1999. In response, Fischer recalled, management sometimes attempted to correct the situation, but often did nothing. In contrast, witnesses for appellants testified that Fischer had difficulty getting along with co-workers³ and persistently complained to management regarding a wide range of perceived slights and wrongs.

In October 1999, Valerie Tackett, human resources director for Ancira Enterprises, began an investigation into the potential misuse of Ancira's toll-free telephone number. On November 1, 1999, after the investigation was complete, Fischer and co-worker Al Trevino were suspended without pay for five days.⁴ The next day, November 2, Fischer and Trevino traveled to Austin and met with a representative of the Texas Commission on Human Rights (TCHR). Trevino filed a written complaint with TCHR that day. Although Fischer verbally complained to the TCHR representative on November 2, she did not file a written complaint until November 10. The TCHR was required by statute to notify the employer of these written complaints within ten days. See Tex. Lab.Code Ann. § 21.201 (West 1996). Trevino and Fischer were both fired on November 12, 1999, exactly the tenth day after Trevino had filed his complaint. Appellants argued that Fischer was fired because, while she was suspended, an excessive amount of unfinished work was found "hidden" in her desk. Fischer testified that no one had ever complained that she had an excess backlog of back work orders, and that when she left on November 1, her work was caught up to her satisfaction.⁵

On August 16, 2000, Fischer filed suit against Ancira Enterprises, alleging discrimination and retaliation under the TCHRA and negligent and intentional infliction of emotional distress. On January 17, 2003, Fischer amended her petition to name Ancira GMC as a defendant. The case was tried to a jury, who found that Fischer was "employed by" both Ancira Enterprises and Ancira GMC, and that both entities were liable for retaliating against Fischer in violation of the TCHRA, but that Fischer had not been sexually harassed. Fischer was awarded back pay, compensatory damages in the amount of $30,000, punitive damages in the amount of $75,000, attorney's fees, and prejudgment and postjudgment interest. This appeal ensued.

DISCUSSION

Ancira Enterprises and Ancira GMC present two narrow issues on appeal. In the first, they argue that Fischer failed to prove that either entity met the statutory definition of "employer" against whom Fischer could assert a claim under the TCHRA. In their second issue, Ancira Enterprises and Ancira GMC contend that there was legally insufficient evidence of malice necessary to support liability for punitive damages.

Standard of review

In reviewing the legal sufficiency of the evidence, we view the evidence in the light favorable to the verdict, crediting favorable evidence if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex.2005). There is legally insufficient evidence or "no evidence" of a vital fact when (a) there is a complete absence of evidence of a vital fact; (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; or (d) the evidence conclusively establishes the opposite of the vital fact. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706 711 (Tex.1997); Patlyek v. Brittain, 149 S.W.3d 781, 785 (Tex.App.-Austin 2004, pet. denied). More than a scintilla of evidence exists when the evidence supporting the finding, as a whole, "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Havner, 953 S.W.2d at 711 (quoting Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995)). If the evidence is so weak as to do no more than create a mere surmise or suspicion of its existence, its legal effect is that it is no evidence. Haynes & Boone v. Bowser Bouldin, Ltd., 896 S.W.2d 179, 183 (Tex.1995).

In reviewing a factual insufficiency point, we consider, weigh, and examine all the evidence presented at trial. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex.1989). We set aside a finding for factual insufficiency only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986) (per curiam).

In reviewing a claim that evidence is legally insufficient under the clear and convincing standard applicable to the punitive damages award in this case, we look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. Diamond Shamrock Ref. Co. v. Hall, No. 02-0566, 168 S.W.3d 164, 170 (Tex.2005) (quoting Southwestern Bell Tel. Co. v. Garza, 164 S.W.3d 607, 609 (Tex.2004)); see In re J.F.C., 96 S.W.3d 256, 264-68 (Tex.2002); see also City of Keller, 168 S.W.3d at 816. We assume that the fact-finder resolved disputed facts in favor of its finding if a reasonable fact-finder could do so, and disregard all evidence that a reasonable fact-finder could have disbelieved or found to have been incredible. See Hall, 168 S.W.3d at 170 (quoting In re J.F.C., 96 S.W.3d at 266). The evidence is legally insufficient if no reasonable fact-finder could form a firm belief or conviction that the employer(s) acted with malice. See id.

Employer status under the TCHRA

Under the TCHRA, an employee may sue an "employer" who retaliates or discriminates against him/her for opposing a discriminatory practice; making or filing a charge; filing a complaint; or testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing. See Tex. Lab.Code Ann. § 21.055 (West 1996). In creating this remedy, the legislature intended to correlate state law with federal law in employment discrimination cases. See Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex.2003); see also Tex. Lab.Code Ann. §...