City of Austin Police Dept. v. Brown

• Decision Date: 19 December 2002
• Docket Number: No. 03-99-00878-CV.,03-99-00878-CV.
• Parties: The CITY OF AUSTIN POLICE DEPARTMENT, Appellant, v. Arthur BROWN; Ron Blackmore; Edwin Booth; Janis Dickerson; Karen Duncan; Gary Duty; Robert Allen Hasselman; David Koschel; George Moxley; Paul Okruhlik; Michael Rech; Jeff Rodman; and John Walenta, Appellees.
• Court: Texas Court of Appeals

Page 588

96 S.W.3d 588

The CITY OF AUSTIN POLICE DEPARTMENT, Appellant, v. Arthur BROWN; Ron Blackmore; Edwin Booth; Janis Dickerson; Karen Duncan; Gary Duty; Robert Allen Hasselman; David Koschel; George Moxley; Paul Okruhlik; Michael Rech; Jeff Rodman; and John Walenta, Appellees.

No. 03-99-00878-CV.

Court of Appeals of Texas, Austin.

December 19, 2002.

Rehearing Overruled February 27, 2003.

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Michael P. Maslanka, Theresa M. Gergen, Goodwin Gruber LLP, Dallas, Philip Durst, Wiseman, Durst, Owen & Colvin, P.C., Austin, for appellant.

Jefferson K. Brim, III, Richard L. Arnett, Brim, Arnett & Robinett, P.C., Austin, for appellees.

Before Chief Justice ABOUSSIE, Justices B.A. SMITH and PATTERSON.

MARILYN ABOUSSIE, Chief Justice.

A jury found for appellees, thirteen current and former Austin Police Department officers, on their age discrimination claims against appellant, the City of Austin Police Department ("APD"), based upon APD's decision to institute a policy that the jury determined to be a seniority system APD adopted for the purpose of intentional age discrimination. The jury awarded damages, and the court rendered judgment and, in a later hearing, awarded appellees attorney's fees. APD appeals the trial court's judgment. We will reverse the judgment of the trial court and remand for a new trial.

BACKGROUND

Austin police officers typically serve as patrol officers or in specialized assignments. Although specialized assignments entail some of the same duties as patrol duty, they often have a specific focus and include assignments to the warrants divisions, D.A.R.E. (Drug Abuse Resistance Education) unit, canine unit, traffic unit, motorcycle unit, horse-mounted unit, narcotics unit, and criminal intelligence unit. Whether an officer serves as a patrol officer or in a specialized assignment, he or she has identical rank, pay classifications, job benefits, and promotional opportunities.

In 1979, APD adopted the first of several policies governing how an officer could apply for a specialized assignment, the criteria for serving in a specialized assignment, how long an officer could hold such an assignment before being required to rotate back to patrol duty, and how long an officer had to serve on patrol duty before becoming eligible to apply for another specialized assignment. The initial APD policy allowed an officer to serve for three years in a specialized assignment but required officers to return to patrol duty for twelve months before becoming eligible for another specialized assignment. Later that year, APD amended the policy by granting the APD division commander discretion to retain senior officers in a specialized assignment beyond the three year period based on job performance.

In 1990, APD again amended its specialized assignment policy, allowing an officer to apply for an extension of a specialized assignment when a transfer would not be in the best interest of the department. The 1990 amendments also implemented an annual review of officer performance, after which a reviewing commander had discretion to reassign an officer in a specialized assignment to patrol or retain the officer in the special assignment.

By the mid-1990s, extensions of police officers' specialized assignments were frequent; consequently, officers were holding their respective assignments longer, resulting in fewer opportunities for other officers to rotate into specialized assignments. In 1993, Assistant Chief Ray Sanders requested a committee be formed to modify APD's specialized assignment policy. Sanders appointed Commander Cecil Huff as chairman of the committee and indicated that he wanted the committee to ensure that the selection process for specialized assignments was fair and to review the appeals process for officers who were not selected.

The committee produced a draft of a new policy but could not reach a consensus on how long an officer could stay in a specialized assignment before being required to transfer. Dissatisfied with the draft because it contained no such time limits, Sanders met with the committee to discuss the policy; still, it reached no consensus on time limits. Finally, Huff formed a second committee comprised of different members. The second committee produced another draft. APD executive staff considered the second committee's recommendations and created General Order 712 ("Policy 712"). Policy 712 imposed a five year cap on specialized assignments, removed any discretion which might extend an officer's assignment beyond five years, and established a rotation policy requiring officers who had served in a specialized assignment to return to patrol duty for at least three years before serving in another specialized assignment. The policy provided that the most tenured personnel would be rotated first. Policy 712 took effect in February 1994.

After APD adopted Policy 712, twenty-two plaintiffs brought suit claiming age discrimination. Eight plaintiffs were non suited, and an additional plaintiff was dismissed by agreement. When the trial commenced, the thirteen remaining plaintiffs proceeded on their claim of direct and intentional age discrimination resulting from APD's adoption of Policy 712. They further asserted at trial that the assignment and transfer policy in effect constituted a seniority system. Two of the thirteen plaintiffs also asserted retaliation claims. The plaintiffs alleged that the transfer policy had a disparate impact on them but did not pursue that claim at trial.

A jury found for all thirteen plaintiffs on the theory of age discrimination and against the two plaintiffs who alleged retaliation. At the conclusion of the jury trial, the trial court held a hearing, received evidence, and awarded attorney's fees to the prevailing parties.

APD appeals the trial court's judgment, contending that appellees failed to prove an essential element of their claim entitling them to judgment, arguing that there is legally or factually insufficient evidence to support the jury's finding that the adoption of Policy 712 constituted intentional age discrimination, and asserting that the award of damages and attorney's fees was improper.

DISCUSSION

In its first issue, APD argues that the district court erred by rendering judgment for appellees because they failed to obtain a jury finding that they suffered any "adverse employment action" at the hands of APD, focusing on appellees' complaints of unwanted transfers under Policy 712. APD objected to the omission of this element at trial, preserving the issue for appeal, and requests that we reverse and render judgment on behalf of APD. APD relies upon the McDonnell Douglas method of proof in support of its position. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). In the alternative, APD requests that we remand the cause for a new trial on the basis that, even if found, evidence that the policy required transfer and lateral rotation is legally and factually insufficient to prove that the officers suffered any adverse employment action through application of the policy.

Standards of Review

We review a district court's submission of controlling issues de novo. Continental Cas. Co. v. Street, 379 S.W.2d 648, 651 (Tex.1964); see also W. Wendell Hall, Standards of Review in Texas, 34 St. Mary's L.J. 1, 124 (2002) ("[W]hen the complaint alleges that an element of a theory has been omitted in the questions or instructions — either because the court believed that it was established as a matter of law or an element of the theory of recovery was omitted — the appropriate standard of review should be de novo.") (citing State Dep't of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 240-41 (Tex.1992)).

To bring a legal sufficiency challenge, the appellant must demonstrate that there is no evidence to support the adverse finding. We must assess all the evidence in the light most favorable to the prevailing party, indulging every reasonable inference in favor of the judgment. Associated Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 285-86 (Tex.1998). We will uphold the finding if more than a scintilla of evidence supports it. Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995). When reviewing a factual sufficiency challenge to a matter on which the prevailing party had the burden of proof, we may reverse the judgment only if the challenged finding shocks the conscience or clearly shows bias, or if the favorable evidence is so weak as to make the judgment clearly wrong and manifestly unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986); Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986).

Jury Questions

The jury was asked to answer the following questions:

Question No. 1: Was the City of Austin's Police Department's decision to adopt General Order No. 712, a decision to adopt a seniority system to intentionally discriminate on the basis of age?

To establish an intent to discriminate the plaintiffs must have proved that any reason given by the City of Austin's Police Department for the decision to adopt General Order No. 712 was a subterfuge, a pretext or cover up and that illegal age discrimination was the true reason for the decision to adopt General Order No. 712.

Answer: Yes

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Question No. 3: As to each of the plaintiffs named below, do you find that the Austin Police Department would have adopted General Order No. 712 even if age discrimination had not been an impermissible motivating factor?

Answer: No [as to each named plaintiff]

Question No. 4: What sum of money, if any, if paid now in cash, would fairly and reasonably compensate each officer named below for damages, if any, that resulted from the discrimination you found under Question No. 1....? Consider the elements of damages listed below and none other ... Compensatory damages [defined, including emotional pain, inconvenience, mental anguish,...