Davis v. Fisk Elec. Co., 14-04-00790-CV.
| Decision Date | 12 January 2006 |
| Docket Number | No. 14-04-00790-CV.,14-04-00790-CV. |
| Citation | 187 S.W.3d 570 |
| Parties | Donald DAVIS, Appellant v. FISK ELECTRIC COMPANY, Fisk Technologies, and Fisk Management Inc., Appellees. |
| Court | Texas Court of Appeals |
Renuka Vinchurkar Jain, Houston, for appellants.
Kyle Wayne Sanders, J. Cary Gray, Houston, for appellees.
Panel consists of Chief Justice HEDGES and Justices YATES and ANDERSON.
Appellant Donald Davis sued appellees Fisk Electric Company, Fisk Technologies, and Fisk Management Inc. ("Fisk") for wrongful termination, alleging that his termination was based on race. A jury found that race was not a motivating factor in Davis's termination. In five issues, Davis complains that (1) the trial court erred in overruling Davis's objections to Fisk's peremptory strikes on the basis that they were exercised in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), (2-3) the evidence is legally and factually insufficient to support the verdict, (4) the trial court erred in four of its evidentiary rulings, and (5) the trial court erred in denying Davis's post-trial motion for sanctions based on discovery violations. We affirm.
Fisk is in the business of installing cable for construction projects. Davis worked on Fisk projects for several years as a union employee until he accepted an entry-level management position with Fisk in August 2000. Fisk undertook a project at Goodson Middle School ("Goodson"), which was scheduled for completion by June 4, 2001. Harry Stein was the project manager for this and several other Fisk projects, and Davis was assigned to be the assistant project manager. Because of demands on his time from the other projects, Stein was unable to closely monitor the work at Goodson, and so Davis, who had only one project, was placed in charge in Stein's absence.
By all accounts, the Goodson project turned out to be a total disaster. The project was mismanaged, over budget, behind schedule, and rife with errors, resulting in costly and time-consuming repairs. Fisk ended up going $40,000 over budget on this $100,000 project. In mid-May 2001, Stein learned there were problems with Goodson and became concerned that the project could not be completed on time. Consequently, Stein went for help to Charles Blanton and Matt Kenjura, two assistant vice presidents for Fisk, who had not previously been involved with Goodson. Kenjura asked Blanton and Stein to further investigate, and soon thereafter they walked through the project. After the walk-through, Blanton called the project "the biggest travesty [he had] ever witnessed in the data cabling business." Stein agreed with Blanton's assessment and, according to Blanton, asked for a new assistant project manager. Davis was relocated to the office to handle paperwork and was terminated about three weeks later. The project foreman, George Thomas, who, like Davis, is African-American, was terminated as well. Stein, who is caucasian, was reprimanded.
Davis was given a termination letter detailing the problems with the Goodson project that led to his termination. Davis claimed he was not responsible for any of the project's deficiencies. Instead, he blamed Thomas for not properly monitoring the daily progress of the job and Stein for not providing the manpower and other assistance Davis claims he needed. Davis concluded that his termination was racially motivated and, after filing a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"), sued Fisk for race discrimination under the Texas Commission on Human Rights Act ("TCHRA"), TEX. LAB.CODE ANN. § 21.051 (Vernon 1996), and 42 U.S.C. § 1981 (2000).1
Before the trial court entered its final judgment, Davis filed a post-trial motion for sanctions, alleging that Davis had learned for the first time during trial that Fisk had falsified some of its discovery responses. The trial court entered its final judgment on May 21, 2004 and then signed a separate order denying Davis's motion for sanctions on June 24, 2004. Davis appeals from both of these orders.
In his second and third issues, Davis challenges the legal and factual sufficiency of the evidence to support the jury's verdict. When a party attacks the legal sufficiency of the evidence supporting an adverse finding as to an issue on which it has the burden of proof, the party must demonstrate on appeal that the evidences establishes, as a matter of law, all vital facts in support of the issue. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex.2001). In making this determination, we examine the record for evidence that supports the finding, while ignoring all evidence to the contrary. Id. We will sustain the challenge only if the contrary proposition is conclusively established. Id.
When a party attacks the factual sufficiency of the evidence supporting an adverse finding as to an issue on which it has the burden of proof, the party must demonstrate on appeal that the finding is against the great weight and preponderance of the evidence. Id. at 242. In conducting a factual sufficiency review, we consider and weigh all the evidence and can set aside the 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 or unjust. Id. The trier of fact is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. GTE Mobilnet of S. Tex. Ltd. P'ship v. Pascouet, 61 S.W.3d 599, 615-16 (Tex.App.-Houston [14th Dist.] 2001, pet. denied). We may not substitute our own judgment for that of the trier of fact, even if we would reach a different answer on the evidence. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998).
In a race discrimination case under the TCHRA, it is the employee's burden to prove race was "a motivating factor" in the employer's decision to terminate. Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex.2003). The jury found that Davis had not met this burden. Davis alleges the evidence is insufficient to support a finding that race was not a motivating factor in his termination, pointing primarily to evidence that (1) Blanton, whom he contends was the decision maker, used a racial epithet in close temporal proximity to the termination decision and (2) Fisk's reason for terminating him was false.
Davis contends that Blanton is a racist who decided to terminate him because of his race and then took steps to conceal his racism and make the reasons for Davis's termination appear legitimate. At trial, Stein testified that after he and Blanton returned from walking through the project and witnessing its vast problems, Blanton said he was going to terminate Davis. In response, Stein told Blanton that the problems at Goodson were his fault, not Davis's, and that if anyone deserved termination, it was Stein. Stein, who had apparently previously been accused of racism after terminating a minority employee, warned Blanton that since he did not have grounds for termination and since Davis was African-American, Davis might complain to the EEOC if Blanton terminated him. Stein said that Blanton referred to Davis as a "n____" and said Davis would be terminated, although Stein could not recall the exact statement. Davis also introduced evidence that Blanton used racial slurs outside the workplace.
According to Davis, after Stein warned Blanton that he did not have grounds for terminating Davis, Blanton removed Davis from the project and then spent the next three weeks building a case to terminate Davis and covering for his discrimination. Stein testified that Blanton wrote Davis's termination letter in which he detailed the problems at Goodson. According to Stein, Blanton said he was also giving Stein a detailed disciplinary letter only to appear fair if Davis filed an EEOC complaint. Similarly, Stein claimed that Blanton rehired George Thomas, the African-American project foreman, only to appear fair if Davis contacted the EEOC. Davis, Stein, and Elliott Avery, a senior project manager and chief estimator for Fisk, testified that Davis was not responsible for the failures at Goodson and that Davis did what he could in his limited capacity as assistant project manager to make the project successful. Davis contends that Blanton actually made the project worse before his termination by assigning Raymond Garcia, a project supervisor, to Goodson and allowing Garcia to run up over $18,000 in labor costs over one weekend when the project was already over ninety percent complete. According to Davis, this evidence establishes as a matter of law that Fisk's reason for terminating him was false and that race was a motivating factor, or at least that the jury's finding to the contrary was against the great weight and preponderance of the evidence.
Fisk presented evidence disputing Davis's account of his termination. According to Blanton, Stein requested a new assistant project manager after the walk-through revealed the extensive problems at Goodson, which Stein blamed largely on Davis. Blanton and Kenjura testified that Kenjura agreed to deal with the Goodson situation because Kenjura had hired Davis. Kenjura transferred Davis from working at the project site to doing paperwork in the office. Kenjura asked Garcia to gather more information on the status of Goodson, and they concluded that the project was not over ninety percent complete, as Davis had represented, but closer to sixty or seventy percent complete, and the project deadline was only a few weeks away. Kenjura authorized Garcia to bring in extra help and work extensively over one weekend in an attempt to put the project back on track. According to...
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