Tex. Dep't of Transp. v. Flores

• Decision Date: 15 May 2019
• Docket Number: No. 08-17-00047-CV,08-17-00047-CV
• Citation: 576 S.W.3d 782
• Parties: TEXAS DEPARTMENT OF TRANSPORTATION, Appellant, v. Genaro FLORES, Appellee.
• Court: Texas Court of Appeals

576 S.W.3d 782

TEXAS DEPARTMENT OF TRANSPORTATION, Appellant,

v.Genaro FLORES, Appellee.

No. 08-17-00047-CV

Court of Appeals of Texas, El Paso.

May 15, 2019

ATTORNEY FOR APPELLANT: Hon. Susan Desmarais Bonnen, Assistant Attorney General, Transportation Division, P. O. Box 12548, Capitol Station, Austin, TX 78711-2548.

ATTORNEY FOR APPELLEE: Hon. John P. Mobbs, Attorney at Law, 7170 Westwind Dr., Ste. 201, El Paso, TX 79912.

Before McClure, C.J., Rodriguez, and Palafox, JJ.

OPINION

GINA M. PALAFOX, Justice

Genaro Flores sued the Texas Department of Transportation (TxDOT), his former employer, for age discrimination under Chapter 21 of the Texas Labor Code. Following a jury trial, the jury found in favor of Flores and the trial court rendered judgment on the jury’s verdict. TxDOT challenges the judgment based on (1) whether the trial court had subject matter jurisdiction over this discrimination claim asserted against a governmental employer, and (2) whether the evidence was legally and factually sufficient to support the jury’s verdict. We affirm as modified.

BACKGROUND

Flores worked for TxDOT as an assistant supervisor assigned to the Maintenance Section of the El Paso office. In 2013, when he was terminated from his employment, Flores was 46 years old. The maintenance section was supervised by Hector Granados, who in turn, was supervised by Tim Twomey, the West El Paso Area Engineer for the West Area Office. As the District Engineer, Bob Bielek supervised Twomey and generally oversaw the El Paso District.

TxDOT initially hired Flores in 1994 as a "Tech 1," an entry-level position. After years of continuous employment, Flores was promoted to assistant maintenance supervisor in 2004. Flores loved his job and felt proud to be promoted to a position where he supervised more than twenty crew members. In 2011, he was temporarily promoted to maintenance supervisor when the previous supervisor retired, and he performed well. On several occasions, Flores was rated on evaluations as an employee who performed at the exceptional level who frequently exceeded expectations. His record also showed he was never formally disciplined during this period.

Circumstances changed, however, after Granados was selected as permanent supervisor of the section and Flores began working under his supervision. Soon after his promotion, Granados initiated disciplinary action against Flores for which Flores eventually received a written reprimand based on his alleged failure to meet performance standards and follow TxDOT procedures. Flores received another written reprimand for allegedly taking a TxDOT work truck into New Mexico to visit a bank ATM, which purportedly violated TxDOT’s policies regarding out-of-state use of official vehicles for non-state business purposes.

Following issuance of his second written reprimand, Flores received further disciplinary actions. After additional instances of purported malfeasance, Granados recommended to TxDOT’s Human Resources Department that Flores be issued another written reprimand. Human Resources, however, recommended probation—a higher level of discipline—and Flores was in fact placed on probation. In April 2013, Granados disciplined Flores again because Flores allegedly took a TxDOT truck to a local store to purchase supplies for his personal business, which purportedly violated TxDOT’s policy on the use of state vehicles for personal activities. After this latest allegation, Granados again submitted disciplinary action paperwork to Human Resources. Although Human Resources and Bielek recommended terminating Flores, Granados claimed that he and Twomey persuaded Bielek not to terminate Flores. Flores was given probation and five days' suspension without pay. Granados additionally issued a formal warning describing policies Flores had purportedly violated and warning that future violations could result in termination.

On June 25, 2013, a vehicle traveling on a highway struck and killed a TxDOT employee who was working on an exit sign alongside another worker. As a result of this incident, TxDOT held a meeting at which District Engineer Bielek gave a verbal order requiring use of an attenuator¹ whenever TxDOT had "boots on the ground." On July 11, 2013, Flores assigned two teams to pick up litter on highways and ordered another employee to request two attenuators from a contractor, one for each crew. After making these assignments, Flores left the yard to perform his own duties and assumed the two attenuators had been ordered and obtained. Although the contractor only provided one attenuator, Flores was not initially aware. When Flores saw that one of the crews was working without an attenuator, he immediately pulled over and called one of the crew members, Pablo Ramirez, on the radio to ask him about the absence of an attenuator. Up until that time, Flores was not aware that the crew had been working without an attenuator. When Granados overheard Flores calling Ramirez on the radio, Granados called Flores on his cell phone and directed him to return to the office.

At a meeting held with crew and Granados, Pablo Ramirez admitted it had been his fault that he worked without an attenuator and accepted responsibility for the incident. Nonetheless, Granados filed a report with Human Resources with a recommendation that Flores receive another written reprimand. Human Resources in Austin, however, recommended that Flores be terminated. District Engineer Bielek testified that he eventually made the decision to terminate Flores for the three previous disciplinary actions and because of the attenuator incident. On July 31, 2013, TxDOT issued termination paperwork to Flores signed by Granados and Twomey.

Flores later testified at trial that he had met with Bielek prior to his termination and told Bielek that Granados was treating him and the "older guys" in his section unfairly. Bielek responded that Flores needed to follow Granados’s instructions, and that perhaps it was time for Flores to get another job. Flores also testified that he told a Human Resources representative, Carmela Magallanez-Aguilar, about Granados treating him and other older employees unfairly but she merely responded that Granados and Twomey were his supervisors. Further, another employee, Javier Castillo, made a formal complaint of age discrimination about Granados, but Granados was unaware of the complaint until the time he was deposed and Magallanez-Aguilar, the TxDOT Human Resources representative, was not questioned about Granados’s treatment of employees.

Following his termination, Flores filed a verified charge of discrimination with the Equal Employment Opportunity Commission (EEOC) and the Texas Workforce Commission (TWC), alleging that Granados terminated him because of his age. After both organizations issued notices of his right to sue, Flores sued TxDOT pursuant to Texas Labor Code, Chapter 21, alleging that he was terminated based on his age. TxDOT filed a plea to the jurisdiction and motion for summary judgment, both of which the trial court denied.² The jury rendered a verdict in favor of Flores finding that Flores’s age was a motivating factor in TxDOT’s decision to terminate his employment. Following a hearing on TxDOT’s motion for judgment notwithstanding the verdict and Flores’s motion for entry of judgment, the court rendered judgment on the jury’s verdict. TxDOT subsequently filed a request for findings of fact and conclusions of law and a motion for a new trial, but the trial court did not grant a new trial or file findings or conclusions. This appeal followed.

DISCUSSION

TxDOT appeals the trial court’s judgment in eight issues, arguing that (1) Flores’s case should be dismissed because there is no evidence establishing a prima facie case of age discrimination, and there is no evidence that age was a motivating factor in TxDOT’s decision to terminate him; (2) there is insufficient evidence that age was a motivating factor in TxDOT’s decision to terminate him; (3) the jury charge contained two erroneous instructions, one of which was an improper "permissive pretext" instruction, and both of which constituted an improper comment on the weight of the evidence; (4) the trial court erred by excluding documents pertaining to Flores’s disciplinary actions; (5) the trial court erred by finding reinstatement feasible without entering the requested findings of fact and conclusions of law; (6) the trial court erred by granting reinstatement; (7) the evidence is factually and legally insufficient to sustain the compensatory damages award; and (8) the trial court erred in awarding Flores the right to execute. In the interest of efficiency, we address the issues simultaneously where possible.

Sufficiency of the Evidence

Applicable Law

In its first two issues, TxDOT argues that the trial court lacked jurisdiction over the case because the evidence was legally and factually insufficient to support the judgment. Flores sued TxDOT under the Texas Commission on Human Rights Act (TCHRA). See generally TEX. LAB. CODE ANN. §§ 21.051 –.556. Among other protections, the TCHRA prohibits an employer from terminating or discriminating against an employee because of the employee’s age. Id. § 21.051(1). TCHRA provisions referring to discrimination because of age or on the basis of age apply only to discrimination against an individual 40 years of age or older. Id. § 21.101. Because the Legislature intended to correlate state law with federal law addressing discrimination by enactment of the TCHRA, we may look to federal case law to inform our analysis. Wal-Mart Stores, Inc. v. Canchola , 121 S.W.3d 735, 739 (Tex. 2003) (citing TEX. LAB. CODE ANN. § 21.001 ); see also Specialty Retailers, Inc. v. DeMoranville , 933 S.W.2d 490, 492 (Tex. 1996). To establish a violation of the TCHRA, the plaintiff must show that he or she was (1) a member of the class protected by the TCHRA; (2) qualified for his or her position; (3) terminated by the employer; and (4)...