Retaliation Found by Jury to be the Reason Behind a Wrongful Discharge Upheld on Appeal

Recently, the Fourteenth Court of Appeals in Texas upheld a jury’s conclusions that an employer was liable for a wrongful discharge under Title VII of the Civil Rights Act when it fired an employee in retaliation for the employee’s complaints of age discrimination and gender discrimination. The Appellate Court upheld the jury’s award of $150,000 for damages including mental pain and suffering caused by the employer’s treatment of the employee.

This ruling highlights some key concepts of employment retaliation and discrimination law that can be difficult to make sense of for employees and employers who aren’t working with these complex cases every day like the employment law attorneys at Kilgore & Kilgore. For example, this case shows how an employee’s actions can aid the success of a retaliation or discrimination lawsuit in the court system. In this case, the employee filed a complaint of age discrimination and gender discrimination with her employer. Later, she filed a civil rights claim with the Equal Employment Opportunity Commission (EEOC) and with the Texas Workforce Commission (TWC). In other words, the law allows an employee to stand up for her civil rights, even when she isn’t perfect. If a jury or appeals court can conclude from the evidence that an employee reported discrimination clearly enough in lay terms to the employer and legal authorities, and that the employee timely files with the EEOC or TWC to obtain a Notice of Right to Sue, that’s enough to bring a lawsuit for employment discrimination or retaliation.

Do You Have a Strong Case for Employment Discrimination or Retaliation?

Of course, whether an employment discrimination or retaliation lawsuit, once filed, is likely to be successful is another question that can be answered only by an experienced employment law attorney. And just because a jury found in favor of the employee in this case does not mean another jury would reach the same conclusion even in a case with similar facts.

The important thing is to have an experienced employment law attorney evaluate your claim as early as possible to advise you of your rights while you still have time to bring a lawsuit. As this case shows, in Texas, you also must properly report the discrimination or retaliation before you can file a lawsuit. The attorneys at Kilgore & Kilgore have years of experience handling these cases and are available for a free evaluation of the facts of your case. Contact us to get the conversation started by filling out the form and submitted it through our website, just click here Contact Kilgore & Kilgore or call us at 214-969-9099.

Employee Says She Was Fired for Reporting Age Discrimination and Gender Discrimination

The case is Apache Corporation v. Cathryn Davis. Ms. Davis began working for Apache in 2006 as a senior paralegal. The facts suggest that things were going fine until 2010 when, according to Ms. Davis, she began being passed over for promotion and raises because of her age. Younger employees were promoted, and she said she felt mocked by her supervisor when she raised the issue. Davis also observed that women had not received titles or promotions, that Apache allowed a male paralegal to transfer to a business unit with promotional opportunities, that a female employee was replaced by a male, and that only male litigators were hired. Apache later presented evidence that, at the same time, Ms. Davis constantly asked for schedule changes that were contrary to company policy. Apache said she arrived late, took long breaks, left late — and worked overtime without approval — after she had been specifically told not to. Ms. Davis said she needed a flexible schedule in order to drive her daughter to and from college classes. She claimed that the harsh way her supervisor told her to stop working overtime caused her to go into convulsive breathing.

Employee Suffered from Employer Retaliation After She Complained to the Company About Discrimination

The employee said the company had a long history of permitting flex time and argued that its change in policy was deliberately setting her up for failure. She also stated that, from 2010 to 2012, whenever she again raised the possibility of promotion, her supervisor responded with “little jabs” that Ms. Davis couldn’t tolerate. In a later email to Apache, she described her supervisor’s responses as “beat downs” and “intimidation” that caused her “great emotional distress” that ended with her in tears.

In 2012 she filed an internal complaint with Apache, alleging emotionally abusive behavior, age discrimination and “woman discrimination.” As for the “woman discrimination,” she explained that she had “observed and experienced the company’s pervasive negative attitude toward advancing or recognizing the contributions or accomplishments of its female employees.” She stated that, after she submitted this complaint, she was shunned by her supervisor. After an internal investigation, Apache found no evidence of discrimination.

However, allegedly in part based on Davis’s failure to follow company policy regarding overtime and work schedules, in January 2013, Apache fired Ms. Davis. She then filed a complaint with the EEOC, checking the boxes for both retaliation and age discrimination. After Davis received the right to sue letter from the EEOC, she then filed a lawsuit in the trial court, alleging both retaliation and age discrimination.

The Employer Then Retaliated Against the Employee Alleging Discrimination

For purposes of our discussion, the focus of Davis’s lawsuit is her claim that Apache fired her for reporting gender or age discrimination. Reporting discrimination is a protected activity under civil rights law, which encourages employees to come forward and report apparent discrimination. The jury found in favor of Davis on her retaliation claim: the jury found that Apache fired her in retaliation for reporting age or gender discrimination. And, because they believed that her supervisor treated her in an emotionally abusive way, the jury awarded Davis $150,000 for emotional pain and suffering, inconvenience, mental anguish, and loss of enjoyment of life. Also, the jury awarded Davis attorneys’ fees, appellate fees, with prejudgment and post-judgment interest.

The Employer Appealed the Verdict and Argued the Evidence Did Not Justify the Jury’s Verdict

Apache appealed the ruling to the Court of Appeal of Texas in Houston. At first, it might seem surprising that a corporation would appeal an award to a plaintiff of only $150,000. In fact, Apache didn’t even specifically challenge this award. Rather, it generally argued that the jury’s conclusions about the wrongful discharge were not supported by the facts of the case and that the award of attorneys’ fees was improper.

Arguably, the attorneys’ fee award is the key to understanding the appeal. Compare the numbers: $150,000 to Davis for damages and $767,242 in attorney fees. On appeal, it is fair to assume that Apache’s primary goal was to get this huge award of attorneys’ fees reduced. And, it could do so in several ways.

First, in Texas, a plaintiff who is successful in a retaliation lawsuit can be reimbursed for reasonable attorneys’ fees. So, the entire fee award could be called into question if Apache could convince the appeals court that the evidence did not support the jury’s conclusion that Apache fired Davis in retaliation for her civil rights complaint. Second, Apache tried in various ways to argue that the attorneys’ fee award was too high. Apache’s appeal mostly failed. Apache argued that the facts could not support the jury’s conclusions that Ms. Davis reasonably believed she was discriminated against, that she clearly reported the discrimination on time to Apache and the EEOC, and that Apache fired her because she violated company policies.

But here is the most important thing to understand about these arguments on appeal. An appeals court is required to defer to a jury’s findings on the facts of a case unless no reasonable person could reach the same conclusion or, as the court opinions say, unless the jury’s decision on the facts is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. The reason for this, roughly stated, is that our justice system gives great respect to juries of our peers, who are direct witnesses to the live testimony of the parties in the case. We are supposed to trust juries to consider a witness’s demeanor, tone and facial expressions, for example, while testifying. And this puts other evidence — such as emails and written complaints presented in this case — into context. So, unless there is essentially no way a jury could reasonably find a given fact necessary to the jury’s verdict, the appeals court can’t re-decide that fact later. There is no point in Apache arguing, for example, that the evidence more strongly suggests that Davis was fired for violating company policy, if there is some evidence that she was fired in retaliation for her discrimination complaint.

Employer’s Arguments on Appeal Failed the Standard of Review of the Jury’s Conclusions

Given this standard of review of the jury’s conclusions, the appeals court rejected Apache’s arguments. It stated that the jury could reasonably conclude that Davis properly filed an internal complaint alleging both age discrimination and gender discrimination. Similarly, there was enough evidence that she properly filed her EEOC complaint. And, she had also filed a complaint and email response with the Texas Workforce Commission that made her gender discrimination claim clear. And, she included her email to Apache as part of her filing with the EEOC. All this was enough to establish that she properly reported her gender discrimination claim.

Finally, the jury could reasonably conclude that Ms. Davis was fired in retaliation for trying to protect her civil rights — as opposed to being fired for willfully violating Apache’s company policy about scheduling and overtime. The jury found that she did violate the policies, but it reasonably concluded that Apache actually fired her in retaliation for her discrimination complaint based on evidence that:

  • The employee was fired a relatively short time after she filed the complaint.
  • Her supervisor shunned her and reduced her workload right after the complaint.
  • The employer gave several contradictory reasons for firing her, which changed over time.

What This Case Means for Future Employment Discrimination and Retaliation Claims

Some important takeaways from this case include that employees do not have to be perfect to claim legal protection for violation of their civil rights. The jury concluded that Apache could have fired Ms. Davis for misconduct. But, according to the jury, it didn’t. Instead, it fired her for calling Apache out on what she reasonably perceived was age discrimination and gender discrimination.

Second, an employee’s civil rights don’t have to have been violated for an employee to protect herself or himself against retaliation for engaging in protected activity. If an employee reasonably believes he or she has experienced unlawful discrimination at work and reports it to the employer and legal authorities, like the EEOC and the TWC, the employer cannot fire the employee for this whistleblowing behavior.

If you have experienced employment discrimination or retaliation, the employment law attorneys at Kilgore & Kilgore can help you understand your rights and whether the evidence supports a lawsuit. We can also advise you regarding whether you may get your rights vindicated without going to trial by reaching a settlement with your employer. Click here Contact Kilgore & Kilgore to start a free review of the facts of your case. Or, Call us 214-969-9099.

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