West Telemarketing Corp. v. McClure

• Decision Date: 19 October 2006
• Docket Number: No. 08-05-00166-CV.,08-05-00166-CV.
• Citation: 225 S.W.3d 658
• Parties: WEST TELEMARKETING CORPORATION OUTBOUND, Appellant, v. Victoria McCLURE, Appellee.
• Court: Texas Court of Appeals

225 S.W.3d 658

WEST TELEMARKETING CORPORATION OUTBOUND, Appellant, v. Victoria McCLURE, Appellee.

No. 08-05-00166-CV.

Court of Appeals of Texas, El Paso.

October 19, 2006.

Rehearing Overruled November 29, 2006.

Jane M.N. Webre, Scott, Douglass & McConnico, LLP, Austin, for appellant.

John P. Mobbs, El Paso, for appellee.

Before BARAJAS, C.J., McCLURE, and CHEW, JJ.

OPINION

DAVID WELLINGTON CHEW, Justice.

West Telemarketing Corporation Outbound ("West") challenges the trial court's judgment entered after a jury trial awarding Appellee, Victoria McClure, damages for employment discrimination. In seven issues, West contends: (1) the evidence was legally and factually insufficient to support the jury's finding that a discriminatory purpose motivated West to terminate Appellee; (2) the evidence was legally and factually insufficient to support the jury's finding that a discriminatory purpose motivated West to deny Appellee a promotion; (3) the trial court abused its discretion in admitting evidence of stray racial remarks, allegations of unrelated instances of racial discrimination, and hearsay testimony of disparate treatment; (4) the evidence was legally and factually insufficient to support the award of compensatory damages; (5) the evidence was legally and factually insufficient to support an award for past and future lost wages; (6) there is no evidence of malice; and (7) the trial court abused its discretion in awarding attorney's fees. We affirm in part and reverse in part.

Victoria McClure is an African American who began her career with West in November of 1997. Originally, she was employed as a "marketing representative" ("MR") in the El Paso telemarketing facility of West Telemarketing Outbound Corporation. The position of MR for West primarily consisted of employees attempting to sell various products or services over the telephone for companies which had contracted with West for this service.

After working four years as an MR with West, Appellee applied for a promotion as a "team training leader" ("TTL"). After filling out the required paperwork and going through a formal interview process, Appellee was hired as a TTL in March of 2002. It is unclear from the record, but approximately two months after being hired for the TTL position, Appellee sought a promotion to a senior training leader position.

According to her testimony, Appellee sought the position after being asked by the acting site director for West, Chris Moore, if she would be interested in the job. Appellee and Chris Moore approached Buck Zengerle, a branch manager at West, inquiring about the possibility of being considered for the position. Mr. Zengerle dissuaded Appellee from applying for the position by indicating that she would not be considered for the promotion. Appellee never formally applied for the position of senior training leader after her conversation with Buck Zengerle. Another individual, Rusty Treharne, was ultimately hired for the position of senior training leader.

By the end of May, 2002, Appellee voluntarily resigned from the TTL position in order to return to her former position as an MR. Appellee resigned as a result of financial difficulties because the position of MR paid more than the TTL position due to the additional incentives. Shortly after returning to her position as an MR at West, Appellee handled a call for the "AT & T, New York Local inbound project." As a result of this call, Appellee was terminated for making a "fraudulent call." That is, logging a call as a sale when in fact the customer did not want to purchase anything.

Appellee filed suit against West alleging violations of the Texas Labor Code. See TEX.LAB.CODE ANN. §§ 21.051, 21.055 (Vernon 2006). A jury found that discrimination was a motivating factor in West's decision not to promote Appellee and her subsequent termination and that Appellee was entitled to recover actual and exemplary damages. The jury awarded Appellee: (1) back pay in the amount of $72,500; (2) future lost wages and employment benefits in the amount of $50,000; (3) past compensatory damages of $150,000; and (4) exemplary damages in the amount of $250,000. The trial court rendered judgment on the verdict and awarded Appellee $72,500 in back pay, $50,000 in future lost wages and benefits, and $150,000 in past compensatory damages, plus prejudgment interest in the amount of approximately $15,422. The trial court reduced the exemplary damages award to $150,000 and also awarded Appellee attorney's fees of $278,400, legal assistant costs of $2,925, and ordinary costs of $907.

A "no evidence" or legal insufficiency point is a question of law which challenges the legal sufficiency of the evidence to support a particular fact finding. In re Estate of Livingston, 999 S.W.2d 874, 879 (Tex.App.-El Paso 1999, no pet.). When the party without the burden of proof suffers an unfavorable finding, the challenge on appeal is one of "`no evidence to support the finding.'" Id. Consequently, to address West's legal sufficiency/no-evidence challenge, we review the evidence in the light most favorable to the verdict disregarding all contrary evidence that a reasonable jury could have disbelieved. City of Keller v. Wilson, 168 S.W.3d 802, 812 (Tex.2005).

When the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.2004), quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983). However, if the evidence supplies some reasonable basis for differing conclusions by reasonable minds as to the existence of a vital fact, then there is legally sufficient evidence. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.2003). Put another way, if there is more than a scintilla of evidence to support the finding, then there is legally sufficient evidence. See Continental Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996).

In reviewing the factual sufficiency challenges to the jury's findings, we must consider all of the evidence and determine whether the evidence in support of the findings is so weak as to be clearly wrong and manifestly unjust or whether the findings are so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Dow Chemical Company v. Francis, 46 S.W.3d 237, 242 (Tex.2001).

Chapter 21 of the Labor Code provides that it is unlawful for an employer to discriminate against an employee with respect to compensation or the terms, conditions, or privileges of employment because of race, color, disability, religion, sex, national origin, or age. TEX.LAB.CODE ANN. § 21.051. The Texas Legislature modeled Chapter 21 of the Texas Labor Code after federal law for the express purpose of carrying out the policies of Title VII of the Civil Rights Act of 1964 and its subsequent amendments. TEX.LAB.CODE ANN. at § 21.001(1); see Soto v. El Paso Natural Gas Co., 942 S.W.2d 671, 677 (Tex.App.-El Paso 1997, writ denied). Consequently, when reviewing an issue under Chapter 21, we may look at cases involving the state statute as well as cases interpreting the analogous federal provisions in resolving these claims. See Quantum Chemical Corp. v. Toennies, 47 S.W.3d 473, 476 (Tex.2001); Elgaghil v. Tarrant County Junior College, 45 S.W.3d 133, 139 (Tex. App.-Fort Worth 2000, pet. denied).

Under Chapter 21, if a plaintiff claims that an adverse employment decision was taken against her based on race, as here, then she must establish that she: (1) is a member of a protected class; (2) suffered an adverse employment action; and (3) nonprotected class employees were not treated similarly. Jones v. Jefferson County, 15 S.W.3d 206, 209 (Tex.App.-Texarkana 2000, pet. denied). 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).

When discrimination cases have not been fully tried on the merits, we apply the burden-shifting analysis established by the United States Supreme Court. Wal-Mart Stores, Inc., 121 S.W.3d at 739. However, when a discrimination case has been fully tried on the merits, our inquiry does not focus on the burden-shifting analysis. Id. "`We need not parse the evidence into discrete segments corresponding to a prima facie, an articulation of a legitimate, nondiscriminatory reason for the employer's decision, and a showing of pretext.'" Rutherford v. Harris County, Tex., 197 F.3d 173, 181 (5th Cir.1999). Rather, we only determine whether or not there is sufficient evidence to support the jury's ultimate findings. Brown v. Kinney Shoe Corp., 237 F.3d 556, 565 (5th Cir. 2001); Rubinstein v. Adm'rs of Tulane Educ. Fund, 218 F.3d 392, 402-03 (5th Cir.2000); Rutherford, 197 F.3d at 180-81; Wal-Mart Stores, Inc., 121 S.W.3d at 739.

Termination

West's first issue attacks the legal and factual sufficiency of the evidence supporting the jury's verdict that discrimination was a motivating factor in West's decision to terminate Appellee. In this case, we need not determine if Appellee proved that race was a motivating factor in West's decision to terminate her in light of the charge actually submitted to the jury.¹ The charge which was submitted reads:

QUESTION NUMBER ONE

Was race a motivating factor in West Telemarketing Corporation Outbound's decision to terminate Victoria McClure's employment or deny her a promotion?

A `motivating factor' in an employment decision is a reason for making the decision at the time it was made. There may be more than one motivating factor for an employment decision.

A fact may be established by direct evidence or by circumstantial evidence or both. A fact is established by direct evidence when proved by documentary evidence or...