Moreno v. Tex. Dep't of Transp., 08–12–00078–CV.

• Decision Date: 18 December 2013
• Docket Number: No. 08–12–00078–CV.,08–12–00078–CV.
• Citation: 440 S.W.3d 889
• Parties: Jerry MORENO, Appellant, v. TEXAS DEPARTMENT OF TRANSPORTATION, Appellee.
• Court: Texas Court of Appeals

440 S.W.3d 889

Jerry MORENO, Appellant

v.TEXAS DEPARTMENT OF TRANSPORTATION, Appellee.

No. 08–12–00078–CV.

Court of Appeals of Texas, El Paso.

Dec. 18, 2013.

Justo Fernandez–Gonzalez, El Paso, for Appellant.

Jerry Moreno, pro se.

Randy Hill, Asst. Atty. Gen., Highway Division, Austin, for Appellee.

Before McCLURE, C. J., RIVERA, and RODRIGUEZ, JJ.

OPINION

YVONNE T. RODRIGUEZ, Justice.

In this wrongful-termination action, Jerry Moreno appeals the trial court's take-nothing judgment in favor of the Texas Department of Transportation (TxDOT). In four issues, Moreno argues the trial court erred in granting a directed verdict on his discrimination and due process claims and in excluding evidence of discrimination. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Moreno was born in Mexico in 1956 and began working for TxDOT in 1988. For fifteen years, Moreno worked under the supervision of an area engineer named Carlos Ahumada. While under Ahumada's supervision, Moreno received good employee evaluations, often exceeding required standards, and was never disciplined for his work performance. When Ahumada retired from TxDOT in August 2003, he was succeeded by Tim Twomey.

Twomey, unlike Ahumada, was critical of Moreno's job performance. Approximately six months after taking over, Twomey removed Moreno from a project and demoted him. Moreno's job performance improved, however, and he was restored to chief construction inspector and assigned to the Traffic Signal Synchronization project in late 2004.

Problems soon arose between Moreno and some of the employees of the project's contractor, Tri–State Electrical. Moreno was accused of, among other things, abusive behavior and unprofessional conduct. These allegations were substantiated in an investigation conducted by a TxDOT internal auditor. In his report dated June 30, 2005, the auditor concluded that Moreno had violated certain department policies and that Moreno's behavior toward crew leaders and workforce was demeaning and patronizing and therefore did “not meet the standards of being congenial and professional.” Although the field office recommended that Moreno be demoted and placed on probation, human resources personnel in Austin recommended that Moreno be terminated because his actions toward the Tri–State employees “[were] so outside the scope, so unprofessional and disrespectful, [that] [TxDOT] could not afford to have him ever do that again.” Moreno was terminated in August 2005, when he was forty-nine years' old, and he was eventually replaced by a thirty-two-year-old Hispanic male named Julian Cereceres.

Moreno filed an internal appeal of his termination. In connection with the appeal, Moreno attended an administrative hearing before a hearing officer. Moreno's internal appeal was denied, as was the charge of discrimination that Moreno filed with the EEOC. Thereafter, Moreno filed this suit against TxDOT, alleging that he was discriminated against on the bases of age and national origin in violation of the Texas Commission on Human Rights Act (TCHRA) and denied due process as guaranteed by Section 19, Article I of the Texas Constitution.

At trial, Moreno could not testify to any particular discriminatory comments, directed at him or others, that he heard while employed at TxDOT. Moreno did testify that another TxDOT employee told him that Twomey was “a racist” and that Twomey did not like him and was going to hurt him, “[i]f not now, later.” When asked if he believed that Twomey was critical of him because Twomey was a racist and hateful of his national origin, Moreno initially testified, “[n]ot of my national origin but with me personally.” Moreno later testified that Twomey treated him badly because Twomey did not like both his personality and national origin. Although Moreno acknowledged that Twomey was responsible for restoring him back to his position of chief inspector and assigning him to the synchronization project, Moreno believed nevertheless that Twomey and the Tri–State employees conspired against him.

EXCLUDING EVIDENCE

We first address Moreno's third issue to determine whether we can appropriately consider the evidence Moreno contends the trial court improperly excluded in our analysis of the remainder of his issues. Moreno argues the trial court erred in excluding evidence proving “that other employees, similarly situated, who were not members of [his] national origin class, and who had engaged in more egregious conduct than [he], were not terminated and were allowed the benefits of progressive discipline.” TxDOT counters that “[Moreno] failed to make a threshold showing that the proffered evidence was admissible.” We agree.

Standard of Review

We review a trial court's decision to exclude evidence for an abuse of discretion. State v. Bristol Hotel Asset Co., 65 S.W.3d 638, 647 (Tex.2001). A trial court abuses its discretion in excluding evidence if it acts arbitrarily or unreasonably or without reference to guiding rules or principles. Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 687 (Tex.2002).

Discussion

Moreno complains specifically of two evidentiary rulings made by the trial court.

1. Disciplinary Records

At trial, Moreno sought to introduce into evidence several records concerning disciplinary action taken by TxDOT against other employees. Moreno argued the records were admissible because TxDOT opened the door to their admissibility by asking him if he had obtained any information substantiating his discrimination claims. TxDOT objected on the following bases:

[Moreno] cannot lay predicate for the admissability [sic] of any of these documents under the current case law and all the cites that are up to 909 clearly specify that the circumstances have to be nearly identical and just this small bit of evidence we have seen, that is not the case and moreover, [Moreno] has no personal knowledge whatsoever of any of the circumstances.

The argument that the door somehow has been opened and all the rules of admissability [sic] have gone by the wayside is not a sustainable argument, Your Honor.

The trial court sustained TxDOT's objection without identifying the basis for its ruling.

Moreno asserts the trial court erred in excluding the records because evidence that is otherwise inadmissible may become admissible when a party opens the door to such evidence by leaving a false impression with the jury that invites the other side to respond.¹ As support for his argument, Moreno relies on Justice Teague's dissent in King v. State, 773 S.W.2d 302 (Tex.Crim.App.1989). In that case, Justice Teague—citing the predecessor to Texas Rule of Evidence 107 —stated:

The concept of an attorney ‘opening the door’ to what would otherwise be inadmissible evidence or testimony on cross-examination is based upon the fact that once the opposing party has opened an inquiry into a particular subject, that party cannot complain when the other party desires to go into the details of that subject.

King, 773 S.W.2d at 307 (J. Teague dissenting). But a party seeking admission of otherwise inadmissible evidence pursuant to Rule 107 must satisfy two threshold requirements.²Crosby v. Minyard Food Stores, Inc., 122 S.W.3d 899, 903 (Tex.App.-Dallas 2003, no pet.). “First, some portion of the matter sought to be ‘completed’ must have actually been introduced into evidence.” Id. at 903. “Merely referring to a statement does not invoke the rule.” Id. “Second, the party seeking to complete the matter must show that the remainder being offered under rule 107 is on the same subject and is necessary to fully understand or explain the matter.”Id.

Moreno did not meet the first requirement for the application of Rule 107. TxDOT did not introduce the disciplinary records into evidence, and the mere allusion to them during Moreno's cross-examination is insufficient to invoke the rule. See Crosby, 122 S.W.3d at 903. Because Moreno failed to meet the first requirement for the application of Rule 107, the trial court did not err in excluding the disciplinary records from evidence. Accordingly, Moreno has not shown that the trial court abused its discretion in denying admission of the records under Rule 107.

2. Deposition Testimony

Moreno also sought to introduce into evidence certain portions of the deposition testimony of Debbie Moore, the then-deputy director of TxDOT's Human Resources Division. In particular, Moreno sought the admission of testimony related to the same disciplinary records previously excluded by the trial court. TxDOT objected on the basis that Moreno had not laid the predicate establishing that Moore was qualified to testify to those records. The trial court agreed, ruling:

Now you have presented a written deposition of ... Moore. She is not present here. She is not able to meet the predicate that is still necessary to introduce these cases that you feel are similarly situated.

Moreno advances two reasons why the trial court erred in so ruling. Neither is persuasive, however.

First, he contends that the deposition testimony was admissible because “TxDOT waived any right to object during ... trial ...” by failing to cross-examine Moore at her deposition and submit objections to the deposition questions. But it was proper for TxDOT to object to the admissibility of Moore's testimony when it was offered at trial. Nat'l Bankers Life Ins. Co. v. Rosson, 400 S.W.2d 366, 370–71 (Tex.Civ.App.-Dallas 1966, writ ref'd n.r.e.) ; City of Magnolia Park v. Crooker, 252 S.W. 341, 342 (Tex.Civ.App.-Beaumont 1923, no writ).

Second, Moreno argues that the deposition testimony was admissible under Texas Rule of Evidence 801(e)(2) as an admission by a party-opponent. But Moreno never raised this argument at trial. Consequently, he failed to preserve it for appellate review. Tex.R.App.P. 33.1 ; Edwards v. Tex. Employment Comm'n, 936 S.W.2d 462, 466 (Tex.App.-Fort Worth 1996, no writ).

Moreno has not shown that the trial court abused its discretion in excluding Moore's deposition testimony from evidence.

Moreno's...