Texas Health and Human Services Commission Texas Department of Assistive and Rehabilitative Services And Commissioner Albert Hawkins, in His Official Capacity Only v. Mary L. Wolfe

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-08-00413-CV

Texas Health and Human Services Commission; Texas Department of Assistive and
Rehabilitative Services; and Commissioner Albert Hawkins, in his Official Capacity only,
Appellants

v.

Mary L. Wolfe, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT
NO. D-1-GN-05-004386, HONORABLE PAUL DAVIS, JUDGE PRESIDING

MEMORANDUM OPINION

Mary Wolfe sued the Texas Health and Human Services Commission, its

Commissioner (Albert Hawkins), and the Texas Department of Assistive and Rehabilitative Services

(collectively, “the State”) for gender-based employment discrimination and retaliation. See Tex.

Lab. Code Ann. §§ 21.051, .055 (West 2006). A jury found that the State improperly considered

gender as a factor in passing over Wolfe for various jobs, but it also found that the State did not

retaliate against Wolfe and would have passed her over for the jobs even without considering gender.

The trial court awarded Wolfe declaratory and injunctive relief and attorney’s fees. See id.

§§ 21.125, .259 (West 2006). The State appeals, arguing that the trial court erred by (1) admitting

into evidence a letter written by the United States Equal Employment Opportunity Commission

(“EEOC”) and (2) awarding Wolfe declaratory and injunctive relief and attorney’s fees. We

1
will affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The Texas legislature reorganized several state social services agencies in 2003 and

2004. It created an umbrella agency, the Health and Human Services Commission (“HHSC”), and

divided it into four departments: the Department of Assistive and Rehabilitative Services (“DARS”),

the Department of State Health Services, the Department of Aging and Disability Services, and the

Department of Family and Protective Services. Each of these departments, in turn, was made up of

one of more former state agencies. DARS was made up of the Texas Rehabilitation Commission,

the Texas Commission for the Blind, Early Childhood Intervention, and the Texas Commission for

the Deaf and Hard of Hearing. The Texas Rehabilitation Commission was the largest of the

agencies comprising DARS, and Mary Wolfe was its interim Commissioner (i.e., head) at the time

DARS was formed.

Albert Hawkins, the Executive Commissioner of HHSC, was tasked with selecting

a Commissioner (i.e., head) for each of the four departments within HHSC. Wolfe applied for the

position of DARS Commissioner and was, according to Hawkins’s trial testimony, the only strong

applicant for the position. Rather than simply hire Wolfe, however, Hawkins solicited an application

from Terry Murphy, the male head of the Texas Commission for the Blind. Hawkins ultimately

selected Murphy to be DARS Commissioner and also selected males to serve as the Commissioners

of the other three HHSC departments.

After Wolfe was passed over for DARS Commissioner, she applied and was passed

over for three other DARS positions: Chief Operating Officer, Deputy Commissioner, and Assistant

2
Commissioner for Rehabilitation Services. Two of these three positions went to males (the Deputy

Commissioner position went to a female). Wolfe was ultimately offered and accepted the position

of DARS Assistant Commissioner for Disability Determination Services.

Wolfe subsequently filed a complaint with the Texas Workforce Commission Civil

Rights Division and the EEOC alleging that she was passed over for the four DARS positions (1) in

retaliation for complaining of perceived discriminatory treatment and (2) because she was female.

The EEOC investigated Wolfe’s complaint and issued a determination letter stating that it found no

support for Wolfe’s retaliation claim but found support for her discrimination claim. Specifically,

the determination letter cited two pieces of evidence that, in the EEOC’s estimation, supported

Wolfe’s discrimination claim: (1) “at least one male selectee for the Commissioner of DARS

position was not better qualified than” Wolfe; and (2) “a comment was made by [Hawkins] that

[HHSC] would be stronger and more likely to succeed if three of the four [department]

Commissioners were male.” The letter concluded that “the evidence does establish a violation

of Title VII [of the federal Civil Rights Act] in that, because of her sex, female, [Wolfe] was denied

a promotion to a DARS Commissioner position.” Consequently, the Texas Workforce

Commission issued Wolfe a right-to-sue letter, see Tex. Lab. Code Ann. § 21.252 (West 2006), and

Wolfe filed suit.

After approximately two years of discovery, the parties went to trial. Before the trial

began, the State filed a motion in limine to exclude the EEOC’s determination letter from evidence.

The court granted the motion but permitted Wolfe to revisit the issue during trial. Wolfe did so and

offered the letter into evidence. The court admitted the letter over the State’s objection.

The jury eventually received a charge that contained four questions: (1) whether

3
gender was a motivating factor in Wolfe being passed over for the DARS positions; (2) whether,

absent gender as a motivating factor, Wolfe would have been passed over for the DARS positions;

(3) whether Wolfe was retaliated against; and (4) what monetary damages would compensate Wolfe

for the discrimination she suffered (if any). The jury found that gender had been a motivating factor

in Wolfe being passed over for the DARS Commissioner position (though not for any other

position). It also found, however, that Wolfe would have been passed over for the Commissioner

position even if gender had not been a motivating factor and that Wolfe was not retaliated against.

Consequently, the jury found that Wolfe was not entitled to damages.

The court entered judgment on the jury’s verdict. It also found that Wolfe was

entitled to (1) declaratory and injunctive relief pursuant to Labor Code section 21.125 and

(2) attorney’s fees pursuant to Labor Code sections 21.125 “and/or” 21.259 “because [Wolfe]

established that her sex (female) was a motivating factor for defendant HHSC’s failure to select her

for the position of DARS Commissioner.” Accordingly, the court’s final judgment declared that

“defendant HHSC violated the plaintiff’s rights under Chapter 21 of the Texas Labor Code, engaged

in unlawful employment discrimination, and considered an illegal factor in not selecting the plaintiff

for the position of DARS Commissioner.” The judgment also enjoined HHSC and Hawkins from

“taking sex into account in future selection decisions for the DARS Commissioner position or for

any other HHSC positions for which [Wolfe] may apply, and . . . from retaliating against [Wolfe].”

Finally the judgment ordered the State to pay Wolfe’s attorney’s fees and costs (including any

appellate fees).

The State filed several post-trial motions that were overruled by operation of law, and

the State then perfected this appeal.

4
 STANDARD OF REVIEW

We review trial court decisions regarding the admission of evidence for abuse of

discretion. City of Brownsville v. Alvarado, 897 S.W.2d 750, 754 (Tex. 1995). A trial court abuses

its discretion if it rules without regard for any guiding rules or principles. Id. Similarly, we review

relief awarded under Labor Code sections 21.125 and 21.259, including declaratory judgments,

injunctions, and attorney’s fees, for abuse of discretion. See Wagner & Brown, Ltd. v. Sheppard,

282 S.W.3d 419, 428-29 (Tex. 2008) (abuse-of-discretion review standard applies to trial court

rulings concerning necessity and propriety of equitable relief); Bocquet v. Herring, 972 S.W.2d 19,

20-21 (Tex. 1998) (where statutes provide court “may” award attorney’s fees, decision to grant or

deny attorney’s fees is discretionary and reviewed on appeal for abuse of discretion); Jones

v. Jefferson County, 15 S.W.3d 206, 213 (Tex. App.—Texarkana 2000, pet. denied) (abuse-of-

discretion review standard applies to injunctions awarded under labor code section 21.125).

DISCUSSION

The State raises three issues on appeal. We will address them in turn.

Whether the Trial Court Erred By Admitting the EEOC Determination Letter

The state argues that the trial court erred by admitting the EEOC determination letter

into evidence. As mentioned above, the State filed a motion in limine to exclude the letter in which

it argued that the letter was “hearsay, irrelevant and any probative value is substantially outweighed

by the danger of unfair prejudice or misleading the jury.” The court granted the motion but permitted

Wolfe to revisit the issue outside the jury’s presence during trial. Wolfe did so, and the following

discussion occurred:

5
THE COURT: Then with respect to the EEOC determination letter, which is
Plaintiff’s Exhibit 74, is it offered?

PLAINTIFF: It is offered, Your Honor.

THE COURT: What is your objection, [State]?

THE STATE: Your honor, we have objected to that on 402—Rule 402, relevance;
403, prejudice; 802, hearsay; and [602], lack of personal knowledge.

THE COURT: I’m sorry. Lack of personal knowledge?

THE STATE: Correct. The person who prepared the report is not the person—or
who investigated it. The person who signed it did not actually conduct the
investigation.

THE COURT: And—all right. Anything else you want to say about it?

THE STATE: Yes, Your Honor. It’s highly prejudicial because, as we explained
earlier, if this report comes in, then we’ll have to offer evidence that the TWC, the
Texas Workforce Commission, found it [sic] contrary and had to forward the file to
the EEOC. I think we just get way off track of what the issues in this trial are. And
I think we’re suggesting to the jury that somehow this incomplete and conflicting
investigation is relevant to the decisions that they have to make at this trial. Our
position is it is clearly prejudicial under Rule 403 and should not be admitted.

THE COURT: The objections to 402 and [802] are overruled. I’m going to roll the
602 and 403 objections into one because under the case authority the Court is to
consider the prejudicial effect combined with the circumstances of the report and
what the report says . . . .

....

THE COURT: [State], is there anything further on the Court’s consideration of the
admissibility of Exhibit 74?

THE STATE: Yes, Your Honor. On the face of it, on Page 2, at the top, the analysis
. . . is an analysis in violation of Title 7 of the Civil Rights Act, a federal statute. And
as I understand it, there is no claim made in this case for Title 7 violations. So
clearly that’s misleading to the jury. It’s a misrepresentation of why we’re here. And
it would require explanation of which [sic] there are no witnesses identified by either
party who can explain what those differences are or how Mr. Esquivel [the letter’s
author] conducted his investigation, which the file indicates he did not even do it
[himself].

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 On appeal, the State focuses on the following portion of the letter: “evidence

indicates that at least one male selectee for the Commissioner of DARS position was not better

qualified than [Wolfe]. Evidence also indicates a comment was made by [Hawkins] that [HHSC]

would be stronger and more likely to succeed if three of the four [department] Commissioners were

male.” The State asserts that “the ‘evidence’ from which these hearsay conclusions originated was

not identified . . . , and nobody from the EEOC testified or sponsored such exhibit, nor identified a

source for any of the hearsay statements and conclusions made therein.” The State re-urges its Rule

of Evidence 402 (relevance) and 403 (prejudice) arguments on the basis of these assertions.

The State also argues that admitting the letter violated Texas Rule of Evidence 802,

the rule against hearsay, “because [the letter] contains statements by individuals who did not testify

at trial . . . and references evidence of qualifications for the position of DARS Commissioner that

are likewise not identified.” The State argues that this hearsay violation was “especially egregious”

because “Hawkins testified that he never talked personally to any investigator from the EEOC or the

Texas Workforce Commission.” The State also notes that the trial court instructed the jury to

consider the letter “for any purpose,” presumably including the truth of its contents, and not merely

for the purpose of “showing ‘the process of filing a complaint.’” As a result, the State argues, the

letter probably determined the outcome of the case—after all, the jury found the State guilty of

discrimination with regard to the one position (DARS Commissioner) that the letter specifically tied

to a discriminatory statement.1 Finally, the State argues that the letter did not qualify as an exception

1
Again, the letter stated that “[e]vidence also indicates a comment was made by [Hawkins]
that [HHSC] would be stronger and more likely to succeed if three of the four [department]
Commissioners were male.”

7
to the hearsay rule under rule of evidence 803(6) or 803(8) because “it contains statements by

individuals who did not testify at trial and were not subject to cross-examination, and references

evidence of qualifications for the position of DARS Commissioner that are likewise not identified

as an exception to the Hearsay Rule.”

Wolfe responds to the State’s arguments in three ways. First, she contends that the

State has waived some of its arguments because it did not raise them at trial. See Tex. R. App.

P. 33.1(a) (to preserve complaint for appellate review, appellant must raise complaint to trial court

with sufficient specificity to make trial court aware of it). Rather, she claims, the State voiced only

the following objections to the letter’s admission at trial: (1) the person who signed the letter did

not actually conduct the investigation; (2) the State would, if the letter was admitted, be forced to

offer evidence that the Texas Workforce Commission reached conclusions contrary to the EEOC;

and (3) the EEOC conducted its analysis under Title 7 of the federal Civil Rights Act rather than

chapter 21 of the Texas Labor Code.2 Thus, Wolfe argues, the State waived the other arguments that

it raises on appeal.

Second, Wolfe contends that the letter was admissible as a hearsay exception under

rule of evidence 803(8)(C). She argues that “the Fifth Circuit and other courts in Title VII cases

routinely have held that EEOC determinations are admissible under [Federal Rule of Evidence]

803(8)(C).”3 See, e.g., McClure v. Mexia Indep. Sch. Dist., 750 F.2d 396, 400 (5th Cir. 1985);

2
Wolfe fails to mention that the State objected on a fourth basis at trial—that “we’re
suggesting to the jury that somehow this incomplete and conflicting investigation is relevant to the
decisions that they have to make at this trial.”
3
Wolfe correctly notes that (1) Texas courts rely on federal as well as Texas authority in
employment-discrimination cases, see Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 475-76

8
Heyne v. Caruso, 69 F.3d 1475, 1483 (9th Cir. 1995).

Third, Wolfe argues that “[c]ase law establishes that EEOC determinations have high

probative value” and should therefore not be excluded under rule of evidence 403. See Tex. R. Evid.

403 (“Although relevant, evidence may be excluded if its probative value is substantially outweighed

by the danger of unfair prejudice, confusion of the issues, or misleading the jury.”).

Assuming for the sake of analysis that the State preserved its appellate arguments,

we find its arguments unpersuasive. EEOC determination letters are excepted from the hearsay rule

as long as they are trustworthy. See Tex. R. Evid. 803(8)(C) (reports of public agencies setting forth

“factual findings resulting from an investigation made pursuant to authority granted by law” are

excepted from hearsay rule “unless the sources of information or other circumstances indicate lack

of trustworthiness”); McClure, 750 F.2d at 399-400 (EEOC determination letters admissible as

hearsay exception under federal rule of evidence 803(8)(C)); Johnson v. Scott Fetzer Co.,

124 S.W.3d 257, 263 (Tex. App.—Fort Worth 2003, pet. denied) (“EEOC determinations . . . are

generally admissible as evidence in civil proceedings.”). The State suggests that Wolfe’s

determination letter is untrustworthy because it “fail[s] to disclose the identity of the supposed

witness who [heard] the un-attributed statement during a conversation with Commissioner Hawkins

that was the basis for the [gender discrimination] determination.” Determination letters are not

necessarily untrustworthy if they rely on “unattributed” statements, however. See Union Pac. R.R.

Co. v. Kirby Inland Marine, Inc., 296 F.3d 671, 679 (8th Cir. 2002) (“The fact that Coast Guard

(Tex. 2001), and (2) Texas Rule of Evidence 803(8) is substantively identical to Federal Rule of
Evidence 803(8). See McRae v. Echols, 8 S.W.3d 797, 800 (Tex. App.—Waco 2000, pet. denied).

9
investigators relied on hearsay evidence to reach their conclusions does not mean that the preparation

of the report was untrustworthy.”); Moss v. Ole S. Real Estate, Inc., 933 F.2d 1300, 1309-10 (5th Cir.

1991) (“[M]any government reports . . . have to rely in part on hearsay evidence, and the reports are

not generally excluded for this reason.”).

What matters is the methodology behind the report. See Kirby Inland Marine,

296 F.3d at 679 (“When considering whether a report is trustworthy, the court should not consider

whether the report is credible, but rather should consider whether the report is reliable. The Rule 803

trustworthiness requirement, therefore, means that the trial court is to determine primarily whether

the report was compiled or prepared in a way that indicates that its conclusions can be relied upon.”)

(citation and punctuation omitted). The State did not attack the EEOC’s methodology at trial and

does not attack it on appeal.4 Thus, the State has not met its burden to establish that the letter is

untrustworthy. See id. (“The party opposing the admission of the report has the burden of proving

the report’s untrustworthiness.”); Moss, 933 F.2d at 1307-08. We therefore conclude that the trial

court did not err in overruling the State’s hearsay objection to the letter.

Concerning the State’s probity-versus-prejudice argument under rule of evidence 403,

the case law is clear that EEOC determination letters are generally considered highly probative.

4
Indeed, Albert Hawkins testified at trial after the letter was admitted, and the State did not
inquire whether he had made the discriminatory statement attributed to him.

The State did ask Hawkins whether the EEOC interviewed him (which it did not), and that
question may have been intended to suggest that the EEOC’s methodology was questionable, but the
State did not develop or follow up on that suggestion. More importantly, the State did not make a
methodological objection to the letter when the trial court was considering whether to admit the
letter. Nor does the State explicitly attack the methodology underlying the letter on appeal.

10
Indeed, EEOC determination letters are considered “presumptively admissible because they are so

highly probative of discrimination that their probity outweighs any possible prejudice to defendant.”

EEOC v. Manville Sales Corp., 27 F.3d 1089, 1095 (5th Cir. 1994) (citations and quotation omitted).

Notwithstanding this general rule, a trial court may exclude an EEOC letter for lack of probity if the

letter is conclusory. Johnson, 124 S.W.3d at 263 (indicating the court may exclude letter that “does

not outline, even summarily, the evidence upon which it relies for its conclusions”). Similarly, a

court may exclude an EEOC letter that affirmatively states discrimination has occurred, as opposed

to one that states there is “reason to believe” discrimination has occurred, because such affirmative

statements may excessively influence the jury. See Manville Sales, 27 F.3d at 1095.5 Ultimately,

whether an EEOC determination letter’s probity is substantially outweighed by its potential to

prejudice is a matter of discretion for the trial court. See id. Thus, we will not reverse a trial

court decision to admit or exclude a letter so as long as it has a reasonable basis. See City of San

Antonio v. Ytuarte, 229 S.W.3d 318, 321 (Tex. 2007) (per curiam) (“[A]n abuse of discretion is

shown only if the trial court could not have reasonably reached the decision in question.”).

Here, the letter at issue contains an affirmative statement that discrimination occurred.

Thus, it had an elevated potential to prejudice the jury. See Manville Sales, 27 F.3d at 1095. On the

other hand, the letter was not conclusory; it stated the evidence on which the discrimination finding

5
The fact that courts may exclude EEOC letters, however, does not mean that courts abuse
their discretion if they do not exclude them. See Goldsmith v. Bagby Elevator Co., 513 F.3d 1261,
1288-89 (11th Cir. 2008) (court does not abuse discretion in admitting EEOC determination letter
that concerns same discrimination claim as that before the jury, where sufficient evidence is adduced
at trial to place letter in proper context, and court instructs jury as to appropriate use of the letter by
explaining that it is not an adjudication of rights and liabilities).

11
was based. Cf. Johnson, 124 S.W.3d at 263 (letter is conclusory, and therefore non-probative, if it

“does not outline, even summarily, the evidence upon which it relies for its conclusions”).6 Nor was

there any suggestion of other circumstances surrounding the letter that undermined its probity. Cf.

Guerra v. North E. Indep. Sch. Dist., 496 F.3d 415, 419 (5th Cir. 2007) (trial court did not err in

excluding EEOC determination letter because, among other reasons, the letter “was created under

questionable conditions.”). On the whole, then, we cannot conclude that the trial court’s probity-

versus-prejudice calculation was so unreasonable as to represent an abuse of discretion. We overrule

the State’s first issue.

Whether the Trial Court Erred By Granting Declaratory and Injunctive Relief and Attorney’s
Fees Against DARS

The State argues that the trial court’s judgment granted relief against DARS and that

this was error because such relief was not supported by the jury’s findings. Specifically, the State

contends that the jury questions asked only whether HHSC, not DARS, discriminated and retaliated

against Wolfe. See W & F Transp., Inc. v. Wilhelm, 208 S.W.3d 32, 47 (Tex. App.—Houston [14th

Dist.] 2006, no pet.) (judgment is erroneous if it imposes liability on defendant not named in jury

charge). Wolfe did not object to the jury charge as submitted, the State argues, so she waived any

right to relief against DARS. See id. Furthermore, the State argues, because the jury found that no

6
As noted above, the fact that the report relied on hearsay evidence did not necessarily
undermine the letter’s probity. See Moss v. Ole S. Real Estate, Inc., 933 F.2d 1300, 1309-10 (5th
Cir. 1991); EEOC v. Regency Architectural Metals Corp., 896 F. Supp. 260, 263 (D. Conn. 1995)
(“[A]dmissibility of EEOC reasonable cause determinations is within the discretion of the trial court,
depending on the probative value of the information in the determination and the problems of the
inability of defendants to cross-examine the report and the hearsay it may contain.”).

12
retaliation occurred, the court could not properly enjoin DARS (along with the other defendants)

from retaliating against Wolfe in the future.

The State’s argument assumes that the judgment actually awards relief against DARS.

A careful reading of the judgment reveals that it does not do so. The State bases its argument on the

judgment’s injunction section, which states that “. . . the defendants are further enjoined from

retaliating against the plaintiff.” (Emphasis added.) While this clause in isolation may seem to

include DARS, in context it clearly includes only HHSC and Hawkins:

[P]laintiff Mary Wolfe is entitled to a permanent injunction enjoining defendants
HHSC and Executive Commissioner Albert Hawkins from taking sex into account in
future selection decisions for the DARS Commissioner position or for any other
HHSC positions for which she may apply, and . . . the defendants are further enjoined
from retaliating against the plaintiff for filing a charge or bringing a complaint, or as
otherwise prohibited by Texas Labor Code § 21.055.

(Emphasis added.) The use of the word “further” in the second clause indicates that the clause

applies only to defendants who have already been enjoined. Only HHSC and Hawkins had already

been enjoined (in the previous clause). Thus, the second clause cannot apply to DARS. This

interpretation accords with the facts of the case, as the jury found that Wolfe was discriminated

against only with regard to Hawkins’s decision (as HHSC Commissioner) not to hire Wolfe for the

DARS Commissioner position.

Because the judgment does not award Wolfe any relief against DARS, we overrule

the State’s second issue.

13
Whether the Trial Court Erred By Awarding Wolfe Declaratory and Injunctive Relief and
Attorney’s Fees

Finally, the State argues that the trial court erred by awarding Wolfe declaratory and

injunctive relief and attorney’s fees. We will consider each form of relief separately.

Declaratory Relief

The State makes two arguments concerning declaratory relief. First, it argues that

declaratory relief was unwarranted because the jury found that Wolfe was not entitled to damages

and would have been passed over for the DARS Commissioner position even absent gender

discrimination. We find this argument unpersuasive, as the jury also found that the State

discriminated against Wolfe with regard to the DARS Commissioner position. The declaration

entered by the trial court simply reflected the jury’s discrimination finding.7 The State offers no

argument as to why such a declaration is improper.

Second, the State seems to argue that declaratory relief was unwarranted because

“Wolfe never testified of any fear of future retaliation or discrimination.” That fact is clearly

irrelevant, however, to whether the court could properly declare that Wolfe had already suffered

discrimination. The Texas Labor Code provides that “an unlawful employment practice is

established when the complainant demonstrates that race, color, sex, national origin, religion, age,

or disability was a motivating factor for an employment practice, even if other factors also motivated

the practice.” Tex. Lab. Code § 21.125(a) (emphasis added). The Labor Code further provides that

7
Again, the declaration read: “Mary Wolfe is entitled to declaratory relief in the form of a
declaration, hereby issued, that defendant HHSC violated the plaintiff’s rights under Chapter 21 of
the Texas Labor Code, engaged in unlawful employment discrimination, and considered an illegal
factor in not selecting the plaintiff for the position of DARS Commissioner.”

14
when such an unlawful employment practice is established, the complainant is entitled to declaratory

relief in the discretion of the trial court. Id. § 21.125(b). The jury found that sex was a motivating

factor in the State’s decision not to hire Wolfe for the DARS Commissioner position, and the State

has not suggested (much less demonstrated) that the jury’s finding was wrong. Thus, we conclude

that the State has not shown the trial court abused its discretion in granting Wolfe declaratory relief.

See id.

The State’s reply brief contains additional arguments concerning declaratory relief.

We do not consider these arguments because an appellant may not raise new arguments in its reply

brief. See Dallas County v. Gonzales, 183 S.W.3d 94, 104 (Tex. App.—Dallas 2006, pet. denied).

Injunctive Relief

The State makes several arguments concerning Wolfe’s award of injunctive relief.8

First, it reiterates one of the arguments it made against declaratory relief—namely, that injunctive

relief was unwarranted because the jury found that Wolfe was not entitled to damages and would

have been passed over for the DARS Commissioner position even absent gender discrimination.

This argument is once again unavailing because the jury also found that the State discriminated

against Wolfe. The Labor Code explicitly provides for injunctions when a plaintiff has been

discriminated against in the past, even if the plaintiff would have experienced the same adverse

employment decision absent discrimination. See Tex. Lab. Code § 21.125(b). We also note that

8
Again, we review awards of injunctive relief under an abuse-of-discretion standard,
Wagner & Brown, Ltd. v. Sheppard, 282 S.W.3d 419, 428-29 (Tex. 2008), and will not reverse an
injunction unless the trial court granted it without regard for any guiding rules or principles. City
of Brownsville v. Alvarado, 897 S.W.2d 750, 754 (Tex. 1995).

15
federal courts routinely impose injunctions when plaintiffs establish past discrimination. See

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 72 (2006) (“Throughout its history, Title

VII has provided for injunctions to bar like discrimination in the future, an important form of relief.”)

(citation and punctuation omitted).

Second, the State seems to argue that the trial court’s injunction runs afoul of Texas

Labor Code section 21.125(b). That statute prohibits a court from awarding a plaintiff

“reinstatement, hiring, promotion, or back pay” for a discriminatory employment decision if the jury

finds that the plaintiff’s employer would have made the same decision absent a discriminatory

motivation. See Tex. Lab. Code § 21.125(b). The State suggests that “granting the injunctive relief

in this case regarding the future DARS Commissioner position” is “tantamount to a reinstatement,

hiring or promotion, however it might be labeled.” Thus, the State argues, the injunction was an

abuse of discretion.

Once again, the injunction entered by the trial court states:

[P]laintiff Mary Wolfe is entitled to a permanent injunction enjoining defendants
HHSC and Executive Commissioner Albert Hawkins from taking sex into account
in future selection decisions for the DARS Commissioner position or for any other
HHSC positions for which she may apply, and . . . the defendants are further enjoined
from retaliating against the plaintiff for filing a charge or bringing a complaint, or as
otherwise prohibited by Texas Labor Code § 21.055.

This injunction is clearly not “tantamount to a reinstatement, hiring or promotion”; it simply bars

future discrimination or retaliation. Thus, the injunction does not run afoul of Labor Code

section 21.125(b).

Third, the State argues that the trial court’s injunction represented an abuse of

16
discretion because Wolfe presented no evidence that she was likely to be discriminated against in

the future.9 The State contends that “prospective injunctive relief depends upon a showing of the

probability of future discrimination.” The State cites a single, unpublished opinion to support this

proposition: Extendacare Health Sys., Inc. v. Gisch, No. 05-95-00601-CV, 1996 Tex. App. LEXIS

5704, at *17-18 (Tex. App.—Dallas Dec. 16, 1996, writ denied). But Gisch does not in fact say that

prospective injunctive relief depends upon a showing of the probability of future discrimination; it

says that if there is no evidence to suggest that future discrimination will occur, “injunctive relief

may not be necessary to make the plaintiff whole.” Id. (emphasis added). The State offers no other

support for its argument that Wolfe had to demonstrate the probability of future discrimination to

obtain an injunction.

The State makes additional arguments concerning injunctive relief in its reply brief.

We do not consider those arguments because an appellant may not raise new arguments in its reply

brief. See Dallas County, 183 S.W.3d at 104 (appellant not permitted to raise new arguments in

reply brief).

Having concluded that the State’s arguments against injunctive relief lack merit, we

affirm the trial court’s award of injunctive relief.

Attorney’s Fees

Finally, the State argues that the trial court erred by awarding Wolfe attorney’s fees.

It bases this argument on the rule that to obtain attorney’s fees under chapter 21 of the Labor Code,

a plaintiff must have obtained “meaningful relief.” See Burgmann Seals Am., Inc. v. Cadenhead,

9
We note that Wolfe remains an HHSC employee.

17
135 S.W.3d 854, 860-61 (Tex. App.—Houston [1st Dist.] 2004, pet. denied). The State contends

that Wolfe did not obtain meaningful relief because (1) she was awarded no damages and (2) the jury

found that the State would not have hired Wolfe as DARS Commissioner even absent a

discriminatory motivation. The State also contends that Wolfe’s “prospective injunction alone”

“might not be enough” to constitute “meaningful relief.” Finally, the State argues that while

declaratory and injunctive relief “could be meaningful to an aggrieved employee who pleads and

proves that her sex was a motivating factor in an ongoing adverse personnel action” (emphasis

added), Wolfe did not plead and prove such action here. As a result, the State argues, Wolfe’s

declaratory and injunctive relief awards did not justify an award of attorney’s fees.

We find these arguments unpersuasive. First, Labor Code section 21.125(b) explicitly

permits attorney’s fees awards when discrimination is found, even if the respondent would have

taken the same action absent discriminatory motivation. See Tex. Lab. Code § 21.125(b). The

statute permits attorney’s fees in such situations even though it explicitly prohibits damages in them.

See id. In other words, according to the statute’s plain terms, the propriety of an attorney’s fee award

is not undermined when a jury (1) finds that the State would have taken the same action absent

discriminatory motivation and (2) awards no damages.

Second, the State cites no supporting authority for its contention that declaratory and

injunctive relief could only be meaningful for an employee who suffered ongoing adverse personnel

actions.

Third, Texas Supreme Court precedent clearly contradicts the State’s argument that

a “prospective injunction alone” might not justify an award of attorney’s fees. See Southwestern Bell

Mobile Sys., Inc. v. Franco, 971 S.W.2d 52, 56 (Tex. 1998) (award of attorney’s fees is proper under

18
Tex. Lab. Code § 21.259 if plaintiff obtains any equitable relief); see also Cadenhead, 135 S.W.3d

at 861 (Franco governs award of attorney’s fees regardless of “whether [the plaintiff] is seeking

attorney’s fees under [Labor Code] section 21.259 or section 21.125.”) (emphasis added).

Finally, we note that the cases interpreting section 21.125’s federal counterpart,

42 U.S.C.A. § 2000e-5 (West 2003),10 suggest that attorney’s fees should routinely be awarded to

plaintiffs who obtain injunctive relief. See, e.g., Dean v. Riser, 240 F.3d 505, 507-08 (5th Cir.

2001); Walker v. Anderson Elec. Connectors, 944 F.2d 841, 845-46 (11th Cir. 1991).

For all these reasons, we conclude that an award of attorney’s fees was proper—i.e.,

was not an abuse of discretion—under Labor Code section 21.125 because Wolfe obtained equitable

relief in the form of an injunction. We overrule the State’s third issue.

CONCLUSION

The State has failed to demonstrate that the trial court abused its discretion by

(1) admitting Wolfe’s EEOC determination letter into evidence or (2) awarding Wolfe declaratory

and injunctive relief and attorney’s fees. We therefore affirm the judgment.

__________________________________________

David Puryear, Justice

Before Justices Patterson, Puryear and Pemberton

Affirmed

Filed: July 14, 2010

10
See Toennies, 47 S.W.3d at 476 (Tex. Lab. Code § 21.125(b) is “nearly identical” to 42
U.S.C. § 2000e-5(g)(2)(B)).

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