APPLE I v. OLIVAS

• Decision Date: 13 May 2010
• Docket Number: No. 08-07-00257-CV.,08-07-00257-CV.
• Citation: 324 S.W.3d 181
• Parties: EL APPLE I, LTD., Appellant, v. Myriam OLIVAS, Appellee.
• Court: Texas Court of Appeals

324 S.W.3d 181

EL APPLE I, LTD., Appellant,

v.Myriam OLIVAS, Appellee.

No. 08-07-00257-CV.

Court of Appeals of Texas,El Paso.

April 21, 2010.

Rehearing Overruled May 13, 2010.

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Joseph L. Hood Jr., Windle, Hood, Alley, Norton, Brittain & Jay, LLP, El Paso, TX, for Appellant.

John P. Mobbs, Attorney at Law, El Paso, TX, for Appellee.

Before CHEW, C.J., RIVERA, J., and MOODY, Judge.

OPINION

DAVID WELLINGTON CHEW, Chief Justice.

This is an employment discrimination and retaliation case. El Apple I, Ltd. appeals from a judgment in favor of its employee, Myriam Olivas. A jury determined Ms. Olivas was the target of illegal retaliatory conduct following her filing of sex discrimination charges against her employer, and awarded her $104,700 in compensatory damages and back pay. The trial court awarded Ms. Olivas $464,000 in attorney's fees, and added conditional attorney's fee awards for post-judgment and appellate proceedings. El Apple raises four issues challenging: the sufficiency of the evidence supporting the jury's retaliation finding; the jury's award of $1,700 for “back-pay;” the trial court's admission of evidence of discrimination of other employees; and several aspects of the attorney's fee award. We affirm as reformed.

Myriam Olivas began working for El Apple I, Ltd., as an assistant manager in one of the company's Applebee's restaurants on August 4, 2001. In October 2001, after completing training at El Apple's Yarborough location, Ms. Olivas was assigned to the Applebee's on George Dieter. During her training, one of Ms. Olivas' supervisors was the Yarborough restaurant's general manager, Mr. Alex Aguirre. At the George Dieter restaurant, Ms. Olivas' supervisor was Mr. Freddy Hernandez. In May 2002, Mr. Hernandez began talking to Ms. Olivas about a possible promotion, and Ms. Olivas began training as an assistant general manager.

In July 2002, Ms. Olivas learned she was pregnant with her first child. She informed Mr. Hernandez about her condition early in August. Over the next few weeks, Ms. Olivas continued to maintain her work schedule which could be up to seventy-five hours per week. On August 7, 2002, Ms. Olivas left her shift at the restaurant and was admitted to the hospital for a possible miscarriage. She notified the restaurant, through another manager, that she would not be able to work her shift on the 8th. Mr. Hernandez left several messages on Ms. Olivas' voicemail indicating his concern that Ms. Olivas was missing her shift that evening. When Ms. Olivas returned to work on the 9th, Mr. Hernandez asked her if she intended to stay with the company through the rest of her pregnancy. Ms. Olivas explained that she intended to keep working, and that she had an appointment to see her doctor to discuss her ongoing symptoms in September. At her appointment, Ms. Olivas' doctor voiced some concerns about fluctuations in Ms. Olivas' blood pressure, but did not put her on any work restrictions. When Ms. Olivas reported back to Mr. Hernandez following her appointment, he informed her that she would need documentation releasing her to work after every appointment for the duration of her pregnancy. There was never any more talk about Ms. Olivas' promotion after her hospitalization.

When Ms. Olivas returned to her doctor in October, they discussed her work schedule and requirements. When she told the doctor she was working up to seventy-five hours per weeks, she expressed concerns about Ms. Olivas not getting enough rest, and restricted her to a forty-hour work week. Ms. Olivas reported the doctor's restriction to Mr. Hernandez, who spoke to Applebee's director of operations, Mr. Butch Gore. Because of her hourly restrictions, the company cut Ms. Olivas' salary by approximately $120 per pay period, a one-fifth reduction. Ms. Olivas contacted Ms. Bea Martinez, the company's contact person for human resource issues, to complain about the pay reduction. Ms. Martinez informed Ms. Olivas that there was no written company policy requiring managers to work fifty or more hours per week to receive a full salary.

Ms. Olivas' schedule continued to be more than forty hours per week, but she was working less hours than she had prior to her pregnancy. When her paycheck continued to reflect a one-fifth pay cut she called Ms. Martinez a second time. Again, Ms. Martinez indicated that the company did not have a written policy requiring managers to work over fifty hours per week to receive their full salaries. Ms. Martinez informed Ms. Olivas that if she felt she was being discriminated against, she could contact the Texas Workforce Commission or the Equal Employment Opportunity Commission and file a complaint. Ms. Olivas filed her first complaint with the Texas Human Rights Commission and the EEOC on November 19, 2002, charging her employer with discrimination based on her sex and because of her pregnancy.

From November 2002 until March 2003, just before the end of her pregnancy, Ms. Olivas was often scheduled for closing shifts, which required her to be at work from late afternoon until between midnight and three a.m. During November and December, Ms. Olivas was scheduled to close more often than any other manager at the George Dieter restaurant. On several occasions, she was scheduled to work more than forty hours per week, and on other occasions, although she was scheduled for less than forty hours, the closing shifts required her to work beyond the hours scheduled.

During the week of November 11 through December 8, 2002, Ms. Olivas worked forty-eight hours, in part because she was called in to cover shifts for Mr. Hernandez who took time off to care for his wife who had suffered a miscarriage. On December 11, Ms. Olivas worked her third closing shift in as many days, pursuant to her schedule. The next week, Mr. Hernandez issued a written employee warning to Ms. Olivas, alleging that she did not perform a safety check in the kitchen to make sure the pilot lights on the stove were turned off, and as a result the entire restaurant smelled like gas the next morning. The warning also reported that at the end of the night, the kitchen was not cleaned satisfactorily, and that trash was not emptied properly. Ms. Olivas filed her second discrimination complaint to the Texas Human Rights Commission and the EEOC on March 27, 2003. In the second complaint, Ms. Olivas alleged her employer had retaliated following the first complaint by scheduling her to work more than forty hours per week despite her doctor's orders, by cutting her salary, and by singling her our for disciplinary action.

In March 2003, Ms. Olivas began nine-weeks of maternity leave and returned to work in May 2003. When she called Mr. Hernandez to ask to be put back on the schedule, he informed her that she would be working at the restaurant at the intersection of Yarborough and Interstate 10. Mr. Aguirre was Ms. Olivas' supervisor at the Yarborough location. Initially, she was assigned to work exclusively in the kitchen and was scheduled to open the restaurant. One of the responsibilities of the opening manager is to do a “freezer-pull,” which requires the assigned manager to pull all of the day's supplies and move them into the cooler or other areas in the kitchen. While she was performing this task, Ms. Olivas experienced sharp pains in her breasts on two occasions. After she reported the pain to her doctor, the doctor faxed El Apple a note prohibiting Ms. Olivas from working in the freezer. The following day, she was scheduled for more work in the freezer, but when she approached her supervisor about her doctor's restrictions, another manager informed her that the company had contacted the physician and that Ms. Olivas was now only restricted from being in the freezer for more than three to five minutes, and was required to wear a jacket. El Apple did not have Ms. Olivas' permission to contact her doctor.

Ms. Olivas continued to work exclusively in the restaurant's kitchen for the next three months. None of the other managers were specifically assigned to the kitchen, or any other area in the restaurant. When she complained about being prohibited from the front of the restaurant, Mr. Aguirre told Ms. Olivas that she was too negative, and did not have a proper rapport with the other employees or customers to work outside the kitchen. When Mr. Aguirre was promoted to Area Director, and Mr. Hernandez took his place as general manager at the Yarborough location, Ms. Olivas began being assigned to duties outside the kitchen. Still, whenever Mr. Aguirre visited the store, Ms. Olivas would be ordered back to the kitchen despite her assigned location for the shift. Ms. Olivas filed her third discrimination complaint on June 25, 2003, alleging that by excluding her from all areas of the restaurant but the kitchen, and that by contacting her doctor about her breast pain without her permission, her employer and supervisors continued to retaliate against her for her previous reports.

Between May and October 2003, Ms. Olivas worked in what she described as a “hostile” environment at Applebee's. She felt that her superiors worked insidiously to undermine her capabilities to the staff and that she had been singled out for reprimands on occasions when she had not done anything wrong. On November 1, 2003, Mr. Hernandez issued a written warning against Ms. Olivas, indicating she was being sent home without pay because she had approached another manager, who was in the restaurant as a customer with family members, about her ongoing issues with her supervisors. When Mr. Aguirre and Mr. Hernandez approached Ms. Olivas with the write-up about the incident, she refused to sign the document. After she refused to sign the first reprimand, Mr. Hernandez wrote her up a second time for refusing to sign the first reprimand. When Ms. Olivas refused to sign the second reprimand, Mr. Aguirre escorted her...