Jefferson County, Texas v. Donna Davis

FILED
14-1029
5/13/2015 3:52:28 PM
tex-5272581
SUPREME COURT OF TEXAS
BLAKE A. HAWTHORNE, CLERK

NO. 14-1029
IN THE SUPREME COURT OF TEXAS

JEFFERSON COUNTY, TEXAS,
Petitioner
v.

DONNA DAVIS,
Respondent

ON PETITION FOR REVIEW FROM THE
FOURTEENTH COURT OF APPEALS, HOUSTON, TEXAS
No. 14-13-00663-CV

BRIEF OF PETITIONER

Kathleen Kennedy David Gaultney
Chief Civil Attorney MehaffyWeber, P.C.
State Bar No. 00798314 State Bar No. 07765300
kkennedy@co.jefferson.tx.us davidgaultney@mehaffyweber.com
Office of Criminal District Attorney 823 Congress Avenue, Suite 200
1001 Pearl Street, 3rd Floor Austin, Texas 78701
Beaumont, Texas 77701 (512) 394-3840; Fax: (512) 394-3860
(409) 835-8550; Fax: (409) 784-5893
Patricia Chamblin
Jeremy Stone MehaffyWeber, P.C.
MehaffyWeber, P.C. State Bar No. 04086400
State Bar No. 24013577 patriciachamblin@mehaffyweber.com
jeremystone@mehaffyweber.com P.O. Box 16
500 Dallas, Suite 1200 Beaumont, Texas 77704
Houston, Texas 77002 (409)835-5011; Fax (409) 835-5177
(713) 655-1200; Fax (713) 655-0222
ATTORNEYS FOR PETITIONER
JEFFERSON COUNTY, TEXAS
 IDENTITY OF PARTIES AND COUNSEL

Petitioner

Jefferson County, Texas

Represented by:
David Gaultney
MehaffyWeber, P.C.
State Bar No. 07765300
davidgaultney@mehaffyweber.com
823 Congress Avenue, Suite 200
Austin, Texas 78701
Phone: (512) 394-3840
Fax: (512) 394-3860

Patricia Chamblin
MehaffyWeber, P.C.
State Bar No. 04086400
patriciachamblin@mehaffyweber.com
P.O. Box 16
Beaumont, Texas 77704
Phone: (409)835-5011
Fax (409) 835-5177

Jeremy Stone
MehaffyWeber, P.C.
State Bar No. 24013577
jeremystone@mehaffyweber.com
500 Dallas, Suite 1200
Houston, Texas 77002
Phone: (713) 655-1200
Fax (713) 655-0222

ii
Kathleen Kennedy
Chief Civil Attorney
State Bar No. 00798314
kkennedy@co.jefferson.tx.us
Office of Criminal District Attorney
1001 Pearl Street, 3rd Floor
Beaumont, Texas 77701
Phone: (409) 835-8550
Direct: (409)835-8577
Fax: (409)784-5893

Respondent

Donna Davis

Represented by:
Iain G. Simpson
Simpson, PC
Iain@simpsonpc.com
1333 Heights Blvd., Suite 102
Houston, Texas 77008
Phone: (281)989-0742
Fax: (281)596-5960

Larry Watts
Azuwuike “Ike” Okoro Okorafor
Watts & Associates
wattstrial@gmail.com
P. O. Box 2214
Missouri City, TX 77459
Phone: (281) 431-1500
Fax: (281) 431-1298

iii
 TABLE OF CONTENTS
Identity of Parties and Counsel .................................................................ii
Table of Contents ..................................................................................... iv
Index of Authorities............................................................................... viii
Statement of the Case .............................................................................. xv
Statement of Jurisdiction ...................................................................... xvii
Issues Presented ................................................................................... xviii
1. The jury found that age was one of several
motivating factors for the termination. Does the
“motivating factor” standard require proof that
age animus was actually responsible for the
termination, that is, proof of causation-in-fact?
Specifically, are retirement comments, statements
nearly a year before the termination, and a
birthday-cake joke legally sufficient evidence that
age was a motivating factor for the termination? ............. xviii
2. Front pay is not mentioned in the statute. Is front
pay recoverable under Chapter 21 of the Labor
Code and, if so, as capped compensatory damages
or as equitable relief? Do the limits on remedies in
the statute determine the extent of the waiver of
governmental immunity to suit? ....................................... xviii
3. Did the Court of Appeals err by holding that the
state statutory cap is an affirmative defense? ................... xviii
4. Did the County’s assertion in issue seven that
Davis is entitled to “back wages and equitable
relief only” – and the separate argument in issue
nine challenging the jury “verdict on damages” as

iv
 “outrageous” and the result of a “run-away jury” –
preserve challenges to the award of front pay and
to the excessiveness of the damages? ............................... xviii
5. The County raised issues that were not decided by
the Court of Appeals. TEX. R. APP. P. 53.4.
Davis’s statement concerning a personal debt was
not protected speech. No First Amendment
protected right was violated. No policy, custom,
or practice of the County caused any violation of
Davis’s federally protected rights. Imposing civil
rights liability on the County based on principles
of respondeat superior is improper as a matter of
law. No legally sufficient evidence supports the
jury’s liability findings. The excessive damages
award is “outrageous.” The County asks this
Court to consider these issues and render a take-
nothing judgment on all claims, remand for a new
trial, or remand the cause for consideration of the
remaining issues by the Court of Appeals. .......................... xix
Statement of Facts ..................................................................................... 1
Summary of Argument ............................................................................ 26
Argument ................................................................................................. 28
I. The “motivating factor” standard requires proof
that age animus was responsible for and a legal
cause of the termination. Retirement comments,
statements nearly a year before the termination,
and a birthday-cake joke are not legally sufficient
proof that age was a motivating factor in the
termination............................................................................. 28

v
 A. The evidence is legally insufficient to
establish that Davis’s termination was the
result of age discrimination. ......................................... 29
1. No pretext ............................................................ 29
2. No direct evidence .............................................. 33
3. A permissible reason. .......................................... 37
B. The record establishes that the termination
would have occurred in the absence of an
impermissible motivating factor. The
December meeting, not any impermissible
factor, was the cause of the termination. On
this record, damages cannot be awarded
against the County. ....................................................... 42
1. Trial by consent ................................................... 43
2. Cause-in-fact ....................................................... 44
3. Causation in a pretext case .................................. 48
II. Davis was not entitled to recover front pay. ......................... 52
A. Front pay is not recoverable under Chapter
21 of the Texas Labor Code. ........................................ 53
B. If front pay is an available equitable remedy
under Chapter 21, it is not recoverable in
this case as a matter of law........................................... 56
III. Several federal courts and a Kentucky appellate
court have determined that the federal statutory
damages cap is an integral part of the statutory
scheme and is not an affirmative defense that
must be pleaded. The Court of Appeals erred by

vi
 holding that the state statutory cap is an
affirmative defense. ............................................................... 59
IV. The Court of Appeals erred in ruling that the
County waived its challenge to the award of front
pay and to the excessiveness of the damage
award. .................................................................................... 63
V. The Court should reverse and render a take-
nothing judgment on all claims or, alternatively,
remand the cause to the Court of Appeals for
consideration of those issues not decided by that
court. ...................................................................................... 65
A. But-for causation .......................................................... 65
1. The Mt. Healthy rule ........................................... 65
2. The retaliation claims .......................................... 67
B. Analysis of First Amendment claims........................... 69
C. Davis’s First Amendment claims ................................. 72
1. Meeting with Commissioner ............................... 72
2. Age or retirement ................................................ 75
3. The transfer ......................................................... 78
4. The debt ............................................................... 81
Prayer ....................................................................................................... 86
Certificate of Compliance ....................................................................... 89
Certificate of Service ............................................................................... 90
Appendix ................................................................................................. 91

vii
 INDEX OF AUTHORITIES

Cases
Alexander v. Eads,
392 F.3d 138 (5th Cir. 2004) ..............................................76, 77, 85
Arismendez v. Nightingale Home Health Care, Inc.,
493 F.3d 602 (5th Cir. 2007) .......................................................... 33
AutoZone, Inc. v. Reyes,
272 S.W.3d 588 (Tex. 2008) (per curiam) ...................33, 34, 35, 36
Barth v. Hoffmann-La Roche, Inc.,
No. 05-01-00302-CV, 2002 WL 1225684 (Tex. App.—
Dallas June 6, 2002, no pet.) (not designated for
publication) ..................................................................................... 34
Beattie v. Madison County Sch. Dist.,
254 F.3d 595 (5th Cir. 2001) .................................................... 74, 81
Benningfield v. City of Houston,
157 F3d 369 (5th Cir. 1998) ........................................................... 71
Bostic v. Georgia-Pacific Corporation,
439 S.W.3d 332 (Tex. 2014) ..............................................28, 47, 48
Branton v. City of Dallas,
272 F.3d 730 (5th Cir. 2001) ........................................70, 71, 85, 86
Burnside v. Kaelin,
773 F.3d 624 (5th Cir. 2014) .................................................... 69, 73
Caro v. City of Dallas,
17 F. Supp. 2d 618 (N.D. Tex. 1998)............................................. 75
Chavez v. Brownsville ISD,
135 Fed. Appx. 664 (5th Cir. 2005) ......................................... 71, 85

viii
City of Keller v. Wilson,
168 S.W.3d 802 (Tex. 2005) .................................................... 36, 42
City of San Antonio v. Pollock,
284 S.W.3d 809 (Tex. 2009) .......................................................... 58
Connick v. Myers,
461 U.S. 138 (1983) ................ 37, 39, 41, 70, 71, 72, 74, 75, 76, 85
Core Med., LLC v. Schroeder,
No. 2009-CA-000670-MR, 2010 WL 2867820 (Ky. Ct.
App. July 23, 2010) ........................................................................ 61
Davis v. McKinney,
518 F.3d 304 (5th Cir. 2008) ..............................................40, 41, 86
Estate of Martineau,
203 F3d 904 (5th Cir. 2000) ..................................................... 58, 59
Finch v. Fort Bend I.S.D.,
333 F.3d 555 (5th Cir. 2003) .......................................................... 86
Garcetti v. Ceballos,
547 U.S. 410 (2006) ...........................................................39, 40, 41
Gibson v. Kilpatrick,
773 F.3d 661 (5th Cir. 2014) petition for cert. filed,
(U.S. Mar. 13, 2015)(No. 14-1112) ............................................... 40
Giles v. Gen. Elec. Co.,
245 F.3d 474 (5th Cir. 2002) .................................................... 59, 60
Goss v. Exxon Office Sys. Co.,
747 F.2d 885 (3d Cir. 1984) ........................................................... 56
Graziosi v. City of Greenville Mississippi,
775 F3d 731 (2015) .................................................................. 38, 41

ix
Gross v. FBL Financial Services, Inc.,
557 U.S. 167 (2009) ................................................................. 50, 51
Hartman v. Moore,
547 U.S. 250 (2006) ................................................................. 52, 66
Haynes v. City of Beaumont,
35 S.W.3d 166 (Tex. App.—Texarkana 2000, no pet.) ................. 77
Hoffman-La Roche, Inc. v. Zeltwanger,
69 S.W.3d 634 (Tex. App.—Corpus Christi 2002),
rev’d on other grounds,
144 S.W. 3d 438 (Tex. 2004) ................................................... 54, 61
Ingram v. Deere,
288 S.W.3d 886 (Tex. 2009) .......................................................... 44
Jefferson County v. Davis,
No. 14-13-00663, 2014 WL 4262184 (Tex. App.—
Houston [14th Dist.] Aug. 28, 2014, pet filed) ............................... 53
Lane v. Franks,
__U.S. __, 134 S.Ct. 2369 (2014) .................................................. 40
M.D. Anderson Hosp. and Tumor Inst. v. Willrich,
28 S.W.3d 22 (Tex. 2000) (per curiam) ................................... 35, 37
Manbeck v. Austin Indep. Sch. Dist.,
381 S.W.3d 528 (Tex. 2012) .......................................................... 62
McCoy v. City of Shreveport,
492 F.3d 551 (5th Cir. 2007) .......................................................... 29
Mission Consol. Ind. School Dist. v. Garcia,
372 S.W.3d 629 (Tex. 2012) ..............................................29, 61, 62
Mooney v. Lafayette Cnty. Sch. Dist.,
538 Fed. Appx. 447 (5th Cir. 2013) (unpublished) ....................... 66

x
Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,
429 U.S. 274 (1977) ...........................................................46, 52, 66
Navy v. Coll. of the Mainland,
407 S.W.3d 893 (Tex. App.—Houston [14th Dist.]
2013, no pet.) .................................................................................. 68
Niu v. Revcor Molded Prods. Co.,
206 S.W.3d 723 (Tex. App.—Fort Worth 2006, no
pet.) ........................................................................................... 34, 36
Oliver v. Cole Gift Centers., Inc.,
85 F. Supp. 2d 109 (D. Conn. 2000) ........................................ 59, 61
Ortega-Guerin v. City of Phoenix,
No. CV 04-0289-PHX-MHM, 2006 WL 2403511 (D.
Ariz. Aug. 14, 2006)....................................................................... 61
Paris v. Dallas Airmotive, Inc.,
No. Civ.A.3:97CV0208-L, 2001 WL 881278 (N.D.
Tex. July 30, 2001) ................................................................... 60, 61
Perry v. Cohen,
272 S.W.3d 585 (Tex. 2008) .......................................................... 63
Pollard v. E.I. du Pont de Nemours & Co.,
532 U.S. 843 (2001) .....................................................52, 53, 54, 57
Quantum Chem. Corp. v. Toennies,
47 S.W.3d 473 (Tex. 2001) ................................................29, 49, 50
Rankin v. McPherson,
483 U.S. 378 (1987) ................................................................. 70, 76
Reed v. Neopost USA, Inc.,
701 F.3d 434 (5th Cir. 2012) .................................................... 33, 52
Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133 (2000) ....................................................................... 33

xi
Sage St. Assocs. v. Northdale Const. Co.,
863 S.W.2d. 438 (Tex. 1993) ......................................................... 44
San Antonio Water Sys. v. Nicholas,
__ S.W.3d__, No. 13-0966, 2015 WL 1873217 (Tex.
Apr. 24, 2015) .......................................................................... 43, 45
San Antonio Water Sys. v. Nicholas,
441 S.W.3d 382 (Tex. App.—San Antonio 2013), rev’d
on other grounds, __S.W.3d__, No. 13-0966, 2015 WL
1873217 (Tex. Apr. 24, 2015) ........................................................ 54
Scott v. Flowers,
910 F.2d 201 (5th Cir. 1990) .................................................... 66, 69
Shorette v. Rite Aid of Maine,
155 F.3d 8 (1st Cir. 1998) .............................................................. 34
Smith v. Office of Personnel Mgmt.,
778 F.2d 258 (5th Cir. 1985) .................................................... 61, 62
Soto v. LCS Corrections Servs., Inc.,
No. 2:12-CV-130, 2013 WL 4012627 (S.D. Tex. Aug.
5, 2013) ........................................................................................... 60
State v. Lueck,
290 S.W.3d 876 (Tex. 2009) .......................................................... 62
Stotter v. University of Texas at San Antonio,
508 F.3d 812 (5th Cir. 2007) .......................................................... 85
Terrell v. Univ. Texas Sys. Police,
792 F.2d 1360 (5th Cir. 1986) ........................................................ 70
Transcon. Ins. Co. v. Crump,
330 S.W.3d 211 (Tex. 2010) .................................................... 45, 47

xii
Turner v. Perry,
278 S.W.3d 806 (Tex. App.—Houston [14th Dist.]
2009, pet. denied) ........................................................................... 41
Univ. of Houston v. Barth,
403 S.W.3d 851 (Tex. 2013) .......................................................... 62
Univ. of Texas Sw. Med. Ctr. v. Nassar,
__ U.S. __, 133 S. Ct. 2517 (2013) ....................................28, 50, 68
Wal-Mart Stores, Inc. v. Davis,
979 S.W.2d 30 (Tex. App.—Austin 1998, pet. denied) ................ 57
Weeks Marine, Inc. v. Garza,
371 S.W.3d 157 (Tex. 2012) .......................................................... 64
Williams v. Dallas Indep. Sch. Dist.,
480 F.3d 689 (5th Cir. 2007) .................................................... 39, 40
Wilson v. UT Health Center,
973 F2d 1263 (5th Cir. 1992) ......................................................... 72
Statutes
42 U.S.C. § 2000e-5(g)(1) ....................................................................... 55
TEX. GOV’T CODE ANN. § 22.001 ........................................................ xvii
TEX. LAB. CODE ANN. § 21.001 ............................................................. 61
TEX. LAB. CODE ANN. § 21.125 ..................................... 32, 42, 43, 49, 51
TEX. LAB. CODE ANN. § 21.258 ........................................................ 54, 55
TEX. LAB. CODE ANN. § 21.2585 ............................................................ 59

xiii
Rules
TEX. R. APP. P. 38.1 ................................................................................ 63
TEX. R. APP. P. 38.9 ................................................................................ 63
TEX. R. APP. P. 7.1 .................................................................................. 59
TEX. R. CIV. P. 67 .................................................................................... 43

xiv
 STATEMENT OF THE CASE

Nature of the Case Donna Davis claimed her employment was
and Parties:
wrongfully terminated by Jefferson County. The

jury found that age was one of several motivating

factors for her termination and found damages in

excess of $1.3 million.

Trial Court: The Honorable Gary Sanderson, 60th District Court,

Jefferson County.

Trial Court’s The trial court signed a judgment, including interest
Disposition:
and attorney fees, awarding over $1.7 million to

Donna Davis.

Court of Appeals: The Fourteenth Court of Appeals: memorandum

opinion by Justice Christopher, joined by Justice

Jamison. Justice McCally dissented concerning

future mental anguish. The Court issued a

supplemental memorandum opinion on denial of

rehearing.

xv
Disposition: The Court of Appeals modified the trial court’s

judgment to eliminate the award of $500,000 for

future mental anguish and affirmed the judgment as

modified. See Jefferson County v. Davis, No. 14-13-

00663-CV, 2014 WL 42621 (Tex. App.—Houston

[14th Dist.] August 28, 2014, pet. filed).

xvi
 STATEMENT OF JURISDICTION

The Supreme Court has jurisdiction under Government Code

section 22.001(a)(6) because the Court of Appeals committed an error of

law of such importance to the jurisprudence of the State that it requires

correction. The Court has jurisdiction under Government Code section

22.001(a)(3) because the case involves the construction of a statute,

Chapter 21 of the Labor Code, necessary to a determination of the case.

Governmental immunity to suit is implicated.

xvii
 ISSUES PRESENTED
1. The jury found that age was one of several motivating factors for
the termination. Does the “motivating factor” standard require
proof that age animus was actually responsible for the termination,
that is, proof of causation-in-fact? Specifically, are retirement
comments, statements nearly a year before the termination, and a
birthday-cake joke legally sufficient evidence that age was a
motivating factor for the termination?

2. Front pay is not mentioned in the statute. Is front pay recoverable
under Chapter 21 of the Labor Code and, if so, as capped
compensatory damages or as equitable relief? Do the limits on
remedies in the statute determine the extent of the waiver of
governmental immunity to suit?

3. Did the Court of Appeals err by holding that the state statutory cap
is an affirmative defense?

4. Did the County’s assertion in issue seven that Davis is entitled to
“back wages and equitable relief only” – and the separate argument
in issue nine challenging the jury “verdict on damages” as
“outrageous” and the result of a “run-away jury” – preserve
challenges to the award of front pay and to the excessiveness of the
damages?

xviii
5. The County raised issues that were not decided by the Court of
Appeals. TEX. R. APP. P. 53.4. Davis’s statement concerning a
personal debt was not protected speech. No First Amendment
protected right was violated. No policy, custom, or practice of the
County caused any violation of Davis’s federally protected rights.
Imposing civil rights liability on the County based on principles of
respondeat superior is improper as a matter of law. No legally
sufficient evidence supports the jury’s liability findings. The
excessive damages award is “outrageous.” The County asks this
Court to consider these issues and render a take-nothing judgment
on all claims, remand for a new trial, or remand the cause for
consideration of the remaining issues by the Court of Appeals.

xix
 STATEMENT OF FACTS

By 2007, the Jefferson County Purchasing Department had a

twenty-year history of turmoil. 1 The most recent crisis involved the

resignation of the Purchasing Agent in early 2007 related to the use of

the County print shop for her personal business;2 she had been reported

by Deb Clark, who was named interim Purchasing Agent after the

resignation.3

Alyce Williams, a Purchasing Department employee, said that

when she started in 1999 she realized it was a very strange atmosphere.4

The office was in turmoil. 5 It involved everyone, including Plaintiff

Donna Davis.6 Williams said there was a lot of discord in the air.7 She

testified that it was always a hindrance to whatever was going on in the

office.8

1
2RR101-102;3RR137.
2
2RR102,104-5;2RR7-8(timing);5RR21(timing);2RR36(under a shadow);2RR58(under a
cloud);2RR59 (early 2007); 5RR13.
3
2RR6-7,59-60;8 RR, Plaintiff’s Ex. 8;3RR328-3239-40;5RR13-15.
4
2RR7.
5
2RR7, 35-36.
6
2RR7.
7
2RR7.
8
2RR8.
 When Clark applied to be the permanent Purchasing Agent in

2007,9 Tamara Edwards, another department employee, told Davis that

she supported Clark’s appointment by speaking to Commissioner

Domingue and a District Judge. 10 Edwards asked if Davis was going to

put in a good word with the Purchasing Board.11 Davis did not feel

comfortable talking to the Purchasing Board or the Commissioners

because she did not feel like she really knew them. 12

When Edwards raised the issue again, Davis talked to Alyce

Williams. 13 Davis was concerned that if they did not speak on Clark’s

behalf, Clark might think that they were disloyal and might not trust

them if she became Purchasing Agent. 14

Williams, who attended the same church as Commissioner

Domingue, told Davis that she was going to speak to him. 15 Williams

invited Davis to go with her. 16 They met Domingue at his office before

9
2RR60.
10
5RR21-22.
11
5RR21-22.
12
5RR22.
13
5RR22.
14
5RR22.
15
5RR22-23.
16
5RR22-23.

2
work one day. 17 After exchanging pleasantries, they turned to the

Purchasing Department. 18 In describing the conversation, Williams

testified that they wanted the new Purchasing Agent “to be a person of

character, that the ongoing drama in the department was difficult and we

would like to see someone in charge who was a person of character who

would be a leader.”19 Davis testified that Williams told Domingue they

were hoping the new Purchasing Agent would be a “good leader,”

someone so the “office would be in a better way,” so that things would

“calm down and there wouldn’t be so much turmoil and confusion

leftover from what had been going on.” 20

Domingue interrupted Williams and said that, before they said

whether they liked Clark or not, there was no way Clark was getting the

job.21 He said that there was too much “bad stuff” in Clark’s past. 22 He

said if either of them was Clark’s friend, they would tell Clark to

17
5RR23.
18
5RR23.
19
2RR9.
20
5RR23-24.
21
5RR24.
22
5RR24.

3
withdraw her application.23 Neither Davis nor Williams expressed an

opinion about Clark. 24 Davis testified that she would have said good

things about Clark.25

Neither Davis nor Williams wanted to tell Clark to withdraw her

application.26 About a week later, Williams saw Domingue at church.27

Domingue reiterated that if she was Clark’s friend she should tell her to

withdraw. 28 After this second conversation, Williams told Clark that she

should withdraw her application, 29 and Clark did so. 30 Doug Anderson

was hired as Purchasing Agent in April 2007.31 Clark returned to her job

as Assistant Purchasing Agent.32

Anderson spent twenty years in the Navy and retired in March

2007.33 After he was hired by the County, Anderson spoke to Cary

23
5RR24-25;2RR10.
24
6RR31-33.
25
6RR33.
26
5RR25.
27
5RR26.
28
2RR11;5RR26.
29
2RR11;5RR27.
30
5RR27;2RR11-12;3RR146-47.
31
4RR40-43,72.
32
4RR47.
33
4RR37,40-41,72.

4
Erickson, the County’s Director of Human Resources. 34 Erickson told

Anderson about the various personnel issues that had occurred over the

years. 35 Erickson provided him two large notebooks that Anderson

believed were the official record of the District Attorney’s office

investigations of the Department. 36

On his first day, Anderson met with the Purchasing Board, various

courthouse leaders, and then over a period of several weeks he met

elected officials.37 As he talked to various people, he learned of the

Department’s terrible reputation.38 He was told that he could “blow it

up” and fire all the Department’s employees or try to “play with the

hand that [he] was dealt.” 39 This testimony not only came from

Anderson, but also from Clark, who provided Anderson a list of

employees and her reasons he should not terminate anybody. 40

34
4RR42(director of HR).
35
4RR45-46.
36
4RR45-46.
37
4RR46-47.
38
4RR60.
39
4RR50.
40
3RR44-45;4RR78.

5
 Erickson told Anderson that if he was going to fire anyone he

should do it early on.41 Anderson could have fired everyone and started

over with a clean slate, but he did not feel that was best for the County.42

He said: “I tried to play what I was dealt there. I didn’t want to fire

anybody.” 43

On his second day, Anderson met with the staff.44 He testified: “I

introduced myself, explained there would definitely be changes as we

went through here and that I understand that the office had been in

turmoil for roughly 20 years and that was going to stop now, that it was

not gonna be tolerated, that we would not go forward like that.” 45

Anderson conducted one-on-one meetings with the Department

employees. 46 He started with Clark and explained to her that he would

be the liaison with the County and she would run the office. 47

Anderson then began meeting with the other employees. He said

the purpose of the meetings was to learn about the employees, give them
41
4RR50.
42
4RR48.
43
4RR50.
44
4RR46.
45
4RR47.
46
4RR51.
47
4RR54.

6
an opportunity to share any thoughts that they had, and develop a

rapport. 48 He “asked everyone about their age.” 49

Alyce Williams testified that at the individual meetings Anderson

wanted to get to know a little about their background and get to know

them. 50 During her meeting, Williams was asked how long she had been

there and what brought her to Texas.51 She “did a resume for him,” and

he “surmised” that she was a few years older than he. 52 Williams

testified Anderson told her she was old enough to be his older sister.53

She replied, “I guess you are old enough to be my younger brother.”54

When asked at trial how that made her feel, she said that it really “didn’t

really strike [her] at the time.” 55 Anderson asked what she thought he

needed to know about purchasing, and she gave him a letter describing

48
4RR73.
49
4RR72.
50
2RR12.
51
8RR, Plaintiff’s Ex. 1, question 7.
52
8RR, Plaintiff’s Ex. 1, question 7.
53
2RR12.
54
8RR, Plaintiff’s Ex. 1, question 7.
55
2RR13.

7
the problems in the department in the hope that it would help him get the

Department back on track. 56

During Tina Williams’s interview, Anderson asked about her past

jobs, her age, and the year she graduated from high school.57 He also

asked if she was married and her husband’s age.58 He commented that

she had robbed the cradle because she was six years older than her

husband.59 She thought this was an inappropriate comment but also felt

“he was trying to get to know me.” 60

During Davis’s meeting, he said that she was old enough to be his

sister or his oldest sister. 61 He testified he did not mean anything in

particular by the comment—he was trying to say that they were about

the same age and was trying to develop a rapport and get her to talk

about herself.62

56
8RR, Plaintiff’s Ex. 1, question 7;2RR13-14;2RR34.
57
8RR, Plaintiff’s Ex. 3, question 7;2RR75-76.
58
8RR, Plaintiff’s Ex. 3, question 7;2RR75-76.
59
8RR, Plaintiff’s Ex. 3, question 7;2RR75-76.
60
8RR, Plaintiff’s Ex. 3, question 7;2RR75-76.
61
4RR72-73;5RR4.
62
4RR72-73.

8
 Davis also recalled that Anderson commented that she was old

enough to retire. 63 Davis testified that she responded: “And I said ‘I’m

not eligible. I’m not old enough. I haven’t been here enough years for

my age and my years of service to equal 75 years, which is the

requirement for retiring.’” 64 In 2007 she would have been eligible to

retire in 2009.65 Alyce Williams testified that Davis told her that she

planned to retire in a few years. 66

Anderson implemented weekly office meetings.67 Davis testified

that in these meetings Anderson referred to Davis’s impending

retirement eligibility. 68 Davis testified she “knew” he was really talking

about her age.69 When asked in written questions if she ever heard

Anderson talk about Davis’s age, co-worker Edwards said: “No.”70

When asked if she heard Anderson speak about Davis’s age, co-worker

63
5RR4-5.
64
5RR5.
65
6RR42-43.
66
2RR38; 8RR, Plaintiff’s Ex. 1, question 4.
67
2RR65(regular);2RR109(weekly).
68
5RR56-57;2RR74.
69
5RR56-57.
70
8RR Defendant’s Ex. 1, question 5.

9
Tina Williams said in her statement: “No, not in front of me.” 71 When

asked if she recalled Anderson talking to Davis about her age at any

time, co-worker Alyce Williams said in her statement: “Not that I can

recall.” 72 Clark, said: “No, I have not heard him talk about her age.” 73

Things changed at the Department. Anderson was in charge and

was a liaison who represented the Department to other departments.74

Clark was more of the day-to-day go-to person.75 Alyce Williams

testified that, having worked for military and civilian employers,

Anderson’s style was more like that of the military, more structured,

formal, with clear-cut duties and responsibilities.76 When asked if

Anderson ran a tight ship, Edwards said that it was different—

sometimes he would close down the office for half a day to clean and

then he would inspect to make sure it was clean.77 He also did not like

the employees playing games at their desks, which they did sometimes. 78

71
8RR Plaintiff’s Ex. 3, question 4;2RR74.
72
8RR Plaintiff’s Ex. 1, question 5.
73
8RR Plaintiff’s Ex. 7, question 2.
74
3RR54;2RR48.
75
2RR48;2RR66.
76
2RR37-38; 2RR82-83.
77
2RR11;2RR82-83.
78
2RR11;2RR82-83

10
 At some point, Anderson decided the Department was overstaffed

and he needed to reduce the number of employees.79 By around 3:00

p.m., the staff was not working.80 Sometimes he would let them go

early. 81 Anderson felt that he could reduce the staff by two. 82 He was

hoping to accomplish this over a year or two.83 Possible ways to reduce

staff were to transfer someone, not replace someone who retired, or

delete a position and terminate the person who held the deleted

position.84

Anderson did not intend to reduce the staff by firing someone or

deleting their position.85 His preference was to reduce the staff by

transferring people. 86 Anderson discussed his proposed staff reduction

with Erickson around budget time. 87 Erickson testified that Anderson

“felt like he had too many people in his department, that at the end of the

day, seemed like people were not very busy and he felt like he could get

79
3RR144;4RR59
80
4RR90.
81
2RR111.
82
4RR90-91.
83
4RR93.
84
4RR88-89.
85
4RR92.
86
4RR92.
87
6RR85.

11
rid of one or two people and it would be to the County’s advantage.”88

Erickson suggested that perhaps he should go through a few budget

cycles before making a decision, noting that once a department lost an

employee it was hard to get one back. 89

Anderson continued to believe that the Department was

overstaffed. He did not intend to accomplish staff reduction by firing

anyone. 90 Instead, he started looking for other ways to reduce staff. For

example, he tried to assist one employee move to a higher paying job,

but she did not want to leave. 91

At the same time, Erickson needed to add an H.R. Department

employee to implement a new courthouse security program that required

badges.92 Anderson and Erickson discussed the idea of transferring

someone from Purchasing to H.R.93 Erickson told Anderson that the

only Purchasing Department employee that he would take was Alyce

88
6RR85.
89
6RR85-86.
90
4RR92-93.
91
4RR91-92.
92
6RR86-88.
93
6RR87-88.

12
Williams. 94 Erickson knew Williams from her prior work, and was

familiar with her attention to detail, her knowledge of computers, and

her conscientiousness; he felt she would make an excellent employee. 95

Erickson testified he was the person, not Anderson, who named

Williams as the person to be transferred.96

Anderson spoke with Williams about a possible transfer.97 He told

her the County was going to have a new security position at the

courthouse that involved organizing the program and doing the badges

and he thought she should apply for that position.98 He also explained

that he was downsizing the Department, and she was the only person

that another department would take. 99

Clark, Davis, and Tina Williams did not want Alyce Williams to

leave. 100 While there is no evidence that Anderson decided to transfer

Williams because she was a dwarf or “little person,” in the environment

of the Purchasing Department that became the rumor as the Department
94
6RR87-88.
95
6RR87-88.
96
6RR89.
97
2RR17
98
2RR17.
99
4RR60.
100
3RR115-116; 2RR82.

13
staff sought to reverse Anderson’s decision.101 Alyce Williams did not

believe that her dwarfism was the reason for her transfer.102 She never

heard anything about Anderson allegedly having problems with little

people until after this lawsuit was filed.103

Clark approached Anderson and told him that she did not think it

was a good idea to transfer Alyce Williams. 104 Clark opposed the

transfer because Alyce Williams did all the paperwork and was very

good at her work; Anderson testified Clark told him she opposed the

transfer because she was concerned about the workload.105

Davis testified that when she heard of Williams’s possible transfer,

she went to Clark and asked what she was going to do about it and

volunteered to help.106 She said that Clark declined her offer of

assistance and said that she would handle it.107 Clark never got back in

touch with Davis. 108 Davis never followed up with Clark. 109

101
2RR44-45; 8RR, Plaintiff’s Ex. 3, question1; 8RR, Plaintiff’s Ex. 7, question 1.
102
2RR30; 8RR, Plaintiff’s Ex. 1, question 1; 8RR, Plaintiff’s Ex. 2.
103
2RR44-45.
104
4RR62.
105
3RR151;4RR62.
106
5RR38.
107
5RR38-39.
108
5RR39.

14
 One day when Clark was in Commissioner Bo Alfred’s office

discussing another matter, Alfred raised the issue.110 Clark said she was

worried about the workload if Williams was transferred and she did not

feel that transferring Williams was a wise decision. 111 Clark testified

that, during this conversation, Alfred asked if Anderson had a problem

with “little people.”112 Alfred did not tell her who told him that, and she

still does not know. 113 Clark testified that she let Alfred know that

Anderson did not have a problem with little people, but that was a rumor

she constantly heard.114 Alfred said he would look into it.115

Clark subsequently told Tina Williams about the visit to

Commissioner Alfred and said that she went to Alfred because she could

not lose her secretary and “[h]e’s the most radical person I know that

could put a stop to this.” 116 Tina Williams testified Clark told her she

109
6RR53.
110
4RR117;3RR114; 4RR12; 8RR, Plaintiff’s Ex. 7, question 1.
111
3RR114,117.
112
3RR115.
113
4RR12.
114
3RR115-116.
115
3RR134.
116
2RR72; 8RR, Plaintiff’s Ex. 3, question 1.

15
told Alfred that Anderson did not feel comfortable around Alyce

Williams and that he used the “m” [midget] word. 117

Clark, who testified that Anderson had no problems with little

people and that it was absurd to think that he did,118 testified that she

told Tina Williams that Alfred asked whether Anderson was biased

against little people and that she told Alfred that he was not but that she

had heard rumors that he was in the office rumor mill. 119 Tina Williams

testified that after meeting with Commissioner Alfred, Clark told her “I

just sold my soul to the devil,” and “I can’t lose my secretary.” 120 Clark

admitted that she said something like she had “just sold my soul to the

devil.”121

Clark and Tina Williams were worried that word of Clark’s

meeting would get back to Anderson.122 Williams’s husband, Calvin,

worried that his wife would get the blame. 123 The record includes

conflicting testimony about a meeting between Calvin Williams and
117
2RR72; 8RR, Plaintiff’s Ex. 3, question 1.
118
3RR116,160.
119
3RR131.
120
2RR72; 8RR, Plaintiff’s Ex. 3, question 1.
121
3RR132.
122
2RR85-86;3RR135.
123
2RR86(Tina’s testimony);3RR4-8(Calvin Williams);4RR67-71(Anderson).

16
Anderson in a truck in which Williams told (or didn’t tell) Anderson

about Clark’s conversation with Commissioner Alfred about Alyce

Williams and phone calls back and forth between Clark and Tina

Williams and between Tina Williams and her husband, all in an effort to

keep Calvin Williams from telling Anderson about Clark’s meeting with

Alfred. 124

Clark also told Department employee Edwards about the meeting

with Commissioner Bo Alfred.125 Clark never told Edwards why

Williams was being transferred, but Clark told her she went to Alfred

because she didn’t want Alyce to leave, that “we needed that position,”

and she was going to Alfred because he was the most radical person to

stop it.126

Clark was unsuccessful in getting Anderson to change his mind

about Williams’s lateral transfer, and Williams was transferred effective

December 1, 2007.127 Her workload was reassigned. 128 Anderson met

124
3RR5-6;4RR67-68;2RR85-86;3RR134-135.
125
2RR112.
126
2RR112.
127
3RR151;4RR59(date).
128
3RR117.

17
with the Department’s staff, including Alyce Williams, and told them

that Williams was “going to a better place.” 129 He said she was going to

HR and be in charge of the security program. 130 He explained that he, a

District Judge, and Alyce were the only three employees in the entire

County to have the security clearances to make the badges.131

Tension had increased between Clark and Davis related to a loan

that Davis made to Clark in April 2004.132 The $1,265 loan to Clark was

to have been repaid in the fall of 2004.133 But Davis said it wasn’t

repaid. 134 At one point, Tina Williams went to Clark and told her the

reason Davis did not like Clark was because Clark still owed Davis

$300.00.135

Davis claimed she also discussed the loan with Clark because her

husband was “bugging” her about the debt. 136 He would ask Davis when

129
5RR40.
130
5RR41.
131
5RR41.
132
3RR147.
133
4RR15;3RR107-09;5RR42-44.
134
5RR44.
135
3RR147-48.
136
5RR44.

18
Clark was going to pay the balance due.137 Davis would tell Clark, “Deb,

Don said to remember that it was a loan, not a gift.”138 Davis told Clark

that she needed to pay it back because her husband was bugging her

about it.139

Davis’s husband decided he was going to sue Clark for the claimed

balance of $285.00.140 Davis thought if her husband sued Clark, it might

place her job in jeopardy. 141 She thought it best to alert Anderson, and

they had a meeting on December 6, 2007.142 Davis claimed that the sole

purpose of the meeting was to tell Anderson that her husband planned to

sue for the $285.00 that had been past due for over three years. 143 Davis

admitted that, during the meeting, she also told Anderson that Clark was

talking behind his back to people in the Department and maybe even in

the courthouse.144

137
5RR44.
138
5RR44.
139
5RR44.
140
5RR44 -45;3RR170.
141
6RR28.
142
5RR45-47;6RR22-23.
143
6RR24-25.
144
6RR23.

19
 According to Anderson, Davis made numerous complaints about

Clark and the last one she mentioned was that Clark owed her $300.145

Davis testified that, during the meeting, Anderson’s demeanor was calm.

He asked her if she had anything else she wanted to say.146

After the meeting with Davis, Anderson talked to Clark, who said

that Anderson “hammered” her pretty hard and told her that this bad

debt should not have been brought into the workplace. 147 He told her to

bring a certified check for $300.00 to work the next day. 148

The next day Anderson met with Clark and Davis. According to

Davis, Anderson handed her a money order for $300.00, had Davis sign

a receipt, and instructed them both never to talk about this again.149

According to Davis, Anderson said: “You are reprehensible. This is the

reason that this department has such a terrible reputation.”150 Davis

145
4RR111.
146
5RR47;6RR26.
147
4RR33.
148
4RR19-20.
149
5RR50-51.
150
5RR51.

20
testified that neither she nor Clark said another word about this and

neither did Anderson.151

Anderson testified he did not believe what Davis told him during

the December meeting, including specifically her criticism of Clark.152

He described Davis’s allegations as upsetting.153

After the meeting, Anderson’s initial thought was that this was not

going to work, and he was going to fire Davis.154 Specifically, he

testified “Donna had come in and leveled a number of accusations

against Deb Clark. And at that point I decided that it was no longer

going to be a worthy working relationship, and I decided to terminate

her at that point.”155 He decided to wait until after the holidays. 156 The

termination was then delayed due to a health issue in Davis’s family in

January and then she was on vacation. March was the earliest time when

she was readily available. 157

151
5RR51.
152
4RR111-112.
153
4RR112.
154
4RR94.
155
4RR58.
156
4RR93-94.
157
4RR93-94.

21
 Leading up to Davis’s termination, Anderson was rethinking his

decision and talked with Erickson and the District Attorney’s office.158

He finally decided to terminate her. 159 He accepts responsibility for the

termination and does not blame the District Attorney’s office, the

Purchasing Board, HR, or Clark. 160

Davis was fired on March 3, 2008.161 Anderson testified that if

Davis had not come to his office to talk about Clark she would never

have been fired.162

Clark was not involved in the decision to terminate Davis; that was

Anderson’s decision.163 Clark testified that she told Anderson not to fire

Davis after the $300 was paid.164 Anderson told her that “there would be

no peace in the office.” 165 Clark said that she told Anderson she could

work with Davis.166 She said she never wanted Davis fired—she wanted

158
4RR94-95.
159
4RR95.
160
4RR95-96.
161
3RR64.
162
4RR87.
163
3RR143;4RR76-79.
164
3RR167-68.
165
3RR170.
166
3RR171.

22
things to take their course and she anticipated that in the next few years

Davis would retire. 167

After her termination, Davis filed an EEOC claim alleging that she

was discriminated against due to her sex and age, and in retaliation.168

Department employees were interviewed by an HR employee and signed

sworn statements. 169

Davis sued. A jury awarded her over $1.3 million in damages for

wrongful termination.170 The County appealed, contending essentially

that the evidence was legally insufficient to support the liability findings

and no federally protected rights were violated. 171 The County also

asserted in issue six that the December meeting was a legitimate reason

for terminating Davis, an at-will employee. 172 And the County argued as

part of issue seven that, if the evidence supported the age claim, Davis

could recover “back wages and equitable relief only.” 173 Finally, the

County asserted in issue nine that the damages verdict was so outrageous
167
3RR144.
168
3RR120.
169
8RR, Plaintiff’s Ex. 1,2,3,7,13; 8RR, Defendant’s Ex. 13;6RR74-75.
170
7RR39-40;CR169.
171
Appellant’s Brief, pages 2-3.
172
Appellant’s Brief, page 26.
173
Appellant’s Brief, page 26.

23
it indicated the jury had failed to give the County a fair hearing on the

evidence presented, that the damage verdict was the result of a run-away

jury, and that there was no evidence to support the damages awarded for

future mental anguish.174

The Court of Appeals correctly stated the nature of the case, with

one exception. The County’s explanation for the termination was the

December meeting, and the jury found that Davis’s speaking to

Anderson at that meeting “in regards to the debt owed to her by Deb

Clark” was a “substantial or motivating factor” for the termination. 175

The Court of Appeals did not address the reasons, other than age, the

jury found were substantial or motivating factors.

The Court of Appeals held that legally sufficient evidence

supported the jury’s finding of age discrimination. The Court held that

no evidence supported the jury’s assessment of damages for future

mental anguish and modified the judgment accordingly. On motion for

174
Appellant’s Brief, pages 3, 32-36;CR143.
175
CR131, Question 7D.

24
rehearing, the Court held any other challenge to the award of damages

was waived and the award did not concern immunity to suit.

25
 SUMMARY OF ARGUMENT

The jury found several reasons for the termination. 176 One was

age. 177 Another was the reason given by the County: the December

meeting. 178 When the record establishes that the employer would have

terminated the employee in the absence of the impermissible motivating

factor, a court may not award damages. The evidence is legally

insufficient to establish that age animus was responsible for the

termination. Damages should not have been awarded against the County.

Absent a statutory remedy permitting the recovery of the excessive

amounts awarded by the jury, the County retains governmental

immunity. To the extent of the remedies provided in the statute, Chapter

21 of the Labor Code is a limited waiver of governmental immunity to

suit. The statute makes no mention of front pay as a remedy. If

recoverable under the statute, front pay is an equitable remedy based on

a finding – missing here – that reinstatement is not feasible.

Alternatively, any award of compensatory damages should be capped.

176
CR125,127,131.
177
CR125.
178
CR131, Question 7D.

26
 All of the remaining claims Davis asserts require proof of but-for

causation. The evidence is legally insufficient to establish that causation.

The evidence establishes she would have been terminated anyway as a

result of the December meeting. The County’s reason for terminating

Davis was a permissible reason under the law. Her statements at the

meeting were not protected speech. Jefferson County requests that the

Court reverse the judgment and render a judgment that Davis take

nothing from Jefferson County.

27
 ARGUMENT

I. The “motivating factor” standard requires proof that age
animus was responsible for and a legal cause of the
termination. Retirement comments, statements nearly a
year before the termination, and a birthday-cake joke are
not legally sufficient proof that age was a motivating factor
in the termination.
The evidence does not support the judgment against the County.

The evidence is legally insufficient to support the finding that Davis’s

termination was the result of age discrimination. She was terminated

because of a December meeting that had nothing to do with age.

The jury found several substantial or motivating factors for the

termination, including the County’s explanation: the December

meeting. 179 The Court of Appeals did not address all the findings. The

statutory claim of age discrimination requires proof “that the defendant’s

conduct did in fact cause the plaintiff’s injury.” Univ. of Texas

Southwestern Med. Ctr. v. Nassar, __U.S. __, 133 S. Ct. 2517, 2524

(2013). A causation analysis includes consideration of the existence and

the extent of the effect of another factor in producing the result. See

Bostic v. Georgia-Pacific Corp., 439 S.W.3d 332, 345 (Tex. 2014). A
179
CR125,127,131(Question 7D).

28
take-nothing judgment should be rendered for the County because the

evidence conclusively establishes that age discrimination was not a legal

cause of Davis’s termination.

A. The evidence is legally insufficient to establish that
Davis’s termination was the result of age discrimination.
There are “two alternative methods of proof” in an age

discrimination case under the state statute. Mission Consol. Ind. School

Dist. v. Garcia, 372 S.W.3d 629, 634 (Tex. 2012). One requires proof of

pretext. See id.; Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 476

(Tex. 2001). The other requires proof of “discriminatory intent via direct

evidence of what the defendant did and said.” Garcia, 372 S.W.3d at

634. The evidence in this case is legally insufficient under either

method.

1. No pretext

Davis’s supervisor, Doug Anderson, testified that he decided to

terminate Davis as a result of the December meeting. 180 That

explanation for the termination was not a pretext for discrimination. See

McCoy v. City of Shreveport, 492 F.3d 551, 557 (5th Cir. 2007). The
180
4RR94.

29
jury did not find that the explanation was false. To the contrary, the jury

found the December meeting to be a true reason for the termination.181

That finding by the jury was correct. Davis testified she thought

her husband’s threatened suit against Clark for failing to repay a

personal loan would place her job in jeopardy.182 That is why she

decided to meet with Anderson in December. 183 Anderson testified that

he did not believe what Davis told him during the December meeting,

including specifically her numerous criticisms of Clark.184 He described

Davis’s allegations as upsetting.185 Davis testified he used a harsher

word: “reprehensible.” 186

Anderson decided to terminate her employment. 187 He decided to

wait until after the holidays.188 The termination was then delayed due to

181
CR131, Question 7D.
182
6RR28.
183
5RR 45-49.
184
4RR111-112.
185
4RR112.
186
5RR51.
187
4RR87, 94-95.
188
4RR93-94.

30
a health issue in Davis’s family in January and then she was on vacation;

March was the earliest time when she was readily available.189

Not only did Anderson testify and the jury find that Davis was

fired as a result of the December meeting, Davis asserted on appeal that

the meeting was a reason for the termination. In Appellee’s Brief in the

Court of Appeals, she cited her testimony concerning the events that

occurred the day after her December meeting with Anderson and then

stated:

Rather than become angry at Clark for an
egregious violation of common sense and basic
management rules, Anderson took out his
wrath on Davis. And, on March 3, 2008, he
fired her. 190
And, again, in response to the County’s motion for rehearing, Davis

acknowledged that the December meeting “was a true reason.”191

The jury found that the December meeting where the disputed debt

was discussed was a substantial or motivating factor for the

189
4RR93-94.
190
Appellee’s Brief, page 9.
191
Response, page 12 (emphasis in Response).

31
termination. 192 The statute provides that “[i]n a complaint in which a

complainant proves a violation under Subsection (a) and a respondent

demonstrates that the respondent would have taken the same action in

the absence of the impermissible motivating factor,” the court “may not

award damages or issue an order requiring an admission, reinstatement,

hiring, promotion, or back pay.” TEX. LAB. CODE ANN. §21.125(b). The

provision assumes that the plaintiff first provides legally sufficient

evidence of an improper motive and “proves a violation.” Here, the

evidence is legally insufficient.

The Court of Appeals rejected the County’s legal sufficiency

challenge. But the court’s causation analysis was wrong. Regardless of

whether Davis and Clark actually could work together or whether

Anderson made a poor management decision, the evidence conclusively

establishes Anderson based his decision on the December meeting. The

jury found the County’s reason was true. The County’s explanation was

not a pretext. Davis did not meet the first method of proof—that of

proving pretext.

192
CR131, Question 7D.

32
 2. No direct evidence

Nor did Davis satisfy the second method of proof—proof by direct

evidence. As the Court of Appeals noted, to serve as direct evidence of

discrimination, statements must be close in time to the employment

decision and related to the decision. A defendant’s comments that are

not close in time, or that are not related to the decision, cannot be

considered as direct evidence. AutoZone, Inc. v. Reyes, 272 S.W.3d 588,

592-93 (Tex. 2008) (per curiam).

The Court of Appeals cited Reeves as support for considering

statements made nearly a year before the termination. But Reeves was a

pretext case, not a direct evidence case. See Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 148 (2000). Since Reeves, the Fifth

Circuit continues to apply the same four-part test this Court does “when

a remark is presented as direct evidence of discrimination apart from the

McDonnell Douglas framework.” Arismendez v. Nightingale Home

Health Care, Inc., 493 F.3d 602, 608 n.4 (5th Cir. 2007); see also Reed

v. Neopost USA, Inc., 701 F.3d 434, 442 n.5, 6 (5th Cir. 2012).

33
 Statements “may serve as evidence of discrimination only if they

are (1) related to the employee’s protected class, (2) close in time to the

employment decision, (3) made by an individual with authority over the

employment decision, and (4) related to the employment decision at

issue.” AutoZone, Inc., 272 S.W.3d at 593 (emphasis added). The only

direct comments about Davis’s age were at the initial one-on-one

interview when Anderson began his new job as purchasing agent. These

statements are too remote in time to be considered evidence that age was

a motivating factor for the termination nearly a year later. See generally

Niu v. Revcor Molded Prods. Co., 206 S.W.3d 723, 731 (Tex. App.—

Fort Worth 2006, no pet.). As the Court of Appeals suggests, the

statements were not made in the direct context of her termination. The

Court of Appeals erred in considering as evidence statements made

nearly a year before her termination and not related to her termination.

The comments about retirement eligibility do not support the jury’s

finding. See, e.g., Shorette v. Rite Aid of Maine, 155 F.3d 8, 13 (1st Cir.

1998); Barth v. Hoffmann-La Roche, Inc., No. 05-01-00302-CV, 2002

WL 1225684, at *4 (Tex. App.—Dallas June 6, 2002, no pet.) (not

34
designated for publication). Retirement comments occur as a legitimate

part of a workplace environment. Davis was approaching eligibility for

retirement and had discussed retirement with at least one co-worker.193

An employee considering retirement is not discriminated against

because she is treated as considering retirement. A supervisor who

mentions the future retirement of an employee and the availability to that

employee of information at routinely scheduled County meetings

comments on retirement, not age.

Davis testified that she interpreted those repeated comments as

age-related. 194 From their statements, apparently others at the meetings

did not make that assumption. 195 Davis’s subjective interpretation is not

proof, and ambiguous statements indirectly related to age are not direct

evidence. See M.D. Anderson Hosp. and Tumor Inst. v. Willrich, 28

S.W.3d 22, 25 (Tex. 2000) (per curiam); AutoZone, 272 S.W.3d at 592-

93.

193
2RR32:14-20;38:4-13;3RR144:1-4;6RR42-43.
194
5RR56-57.
195
8RR Plaintiff’s Ex. 1, question 5; Plaintiff’s Ex. 3, question 4; Plaintiff’s Ex. 7, question 2;
Defendant’s Ex. 1, question 5.

35
 The Court of Appeals cites Alyce Williams’s testimony concerning

Anderson’s first staff meeting. That meeting occurred almost a year

before the termination. See generally Niu, 206 S.W.3d at 731. Tina

Williams’s statement, also cited by the Court of Appeals, does not

indicate the dates of the staff meetings to which the statement refers.196

Her statement does indicate, however, that the comments included

references to information meetings scheduled by the County.197 Those

retirement comments were not related to or shown to be close in time to

the termination decision.198

The Court of Appeals cites a birthday cake joke as an indirect age-

related comment. A reasonable juror would recognize the remark as an

attempt at humor. See City of Keller v. Wilson, 168 S.W.3d 802 (Tex.

2005) (reasonable juror standard); AutoZone, 272 S.W.3d at 592-93.

Davis admits this could be “laughed off as good-natured joking,” but she

saw this as an instance of intolerance coming from Anderson.199 A

196
8RR, Plaintiff’s Ex. 3, question 5.
197
8RR, Plaintiff’s Ex. 3.
198
8RR, Plaintiff’s Ex. 3.
199
Appellee’s Brief, page 6 n.3.

36
subjective belief that a joke relates to a termination decision is not direct

evidence. See Willrich, 28 S.W.3d at 25.

Neither method of proof was satisfied. The evidence is legally

insufficient to support a finding that Davis was terminated due to age

discrimination. The Court should render judgment that Davis recover

nothing on the age claim.

3. A permissible reason

Davis argues the December meeting was not a permissible reason

for the termination and therefore cannot be considered in the analysis of

her age claim. She claims her speech regarding the debt was protected

speech. But it was not. The County did not terminate Davis for an

impermissible reason.

“The inquiry into the protected status of speech is one of law, not

fact.” Connick v. Myers, 461 U.S. 138, 148 n.7 (1983). The December

2007 meeting had nothing to do with public official misconduct. The

United States Supreme Court has explained that “government offices

could not function if every employment decision became a constitutional

matter.” Connick, 461 U.S. at 143. In order for the December meeting to

37
be an impermissible reason for termination, Davis would have had to

prove that (1) she spoke as a citizen rather than as a public employee; (2)

she spoke on a matter of public concern to the community; and (3) her

interest in speaking on the matter of public concern outweighed those of

the County in maintaining efficiency. Graziosi v. City of Greenville

Mississippi, 775 F3d 731, 735 (2015).

Davis met with Anderson in December because her husband

intended to sue Clark for nonpayment of a personal loan and she thought

this would place her job in jeopardy. This was a dispute between two

employees under Anderson’s supervision.200 Anderson testified to other

job-related criticisms Davis made of Clark at the meeting; Davis

admitted raising a job-related criticism of Clark. As addressed further in

issue five, the evidence is legally insufficient to support the jury’s

findings in response to questions four, five, and six that the December

meeting concerned matters of political, social or other concern to the

community, were matters of public concern, were not purely job-related,

and did not disrupt the efficiency of the office. The December meeting

200
5RR45-49

38
did not involve matters of political, social, or other concern to the

community. They involved Anderson’s management responsibilities for

the Department.

The termination was not a violation of the Constitution. The

Supreme Court has explained the matter in this way:

When employee expression cannot be fairly considered as
relating to any matter of political, social, or other concern to
the community, government officials should enjoy wide
latitude in managing their offices, without intrusive oversight
by the judiciary in the name of the First Amendment. Perhaps
the government employer’s dismissal of the worker may not
be fair, but ordinary dismissals from government service
which violate no fixed tenure or applicable statute or
regulation are not subject to judicial review even if the
reasons for the dismissal are alleged to be mistaken or
unreasonable.
Connick, 461 U.S. at 146. The Court has explained that “the First

Amendment does not prohibit managerial discipline based on an

employee’s expressions made pursuant to official responsibilities.”

Garcetti v. Ceballos, 547 U.S. 410, 424 (2006).

Activities “undertaken in the course of performing one’s job,”

therefore, are not protected speech. In Williams v. Dallas Indep. Sch.

39
Dist., 480 F.3d 689, 693 (5th Cir. 2007), the Court analyzed the case-law

and concluded:

These cases, when viewed as a whole, distinguish between
speech that is “the kind of activity engaged in by citizens
who do not work for the government,” Garcetti, 126 S.Ct. at
1962, and activities undertaken in the course of performing
one's job. Activities undertaken in the course of performing
one's job are activities pursuant to official duties. Id. at 1960.
Davis’s statements at the December meeting were not protected by the

First Amendment because “[r]estricting speech that owes its existence to

a public employee's professional responsibilities does not infringe any

liberties the employee might have enjoyed as a private citizen.” Garcetti,

547 U.S. at 421–22; see Lane v. Franks, __U.S. __, 134 S.Ct. 2369, 2379

(2014); Gibson v. Kilpatrick, 773 F.3d 661, 666-70 (5th Cir. 2014)

petition for cert. filed, (U.S. Mar. 13, 2015)(No. 14-1112).

Nor did her statements touch upon a matter of public concern. She

was speaking about a personal loan she had offered to make to her

supervisor and her husband’s soon-to-be-filed lawsuit. These were

purely private concerns. See Davis v. McKinney, 518 F.3d 304, 312 (5th

40
Cir. 2008); Turner v. Perry, 278 S.W.3d 806, 816 (Tex. App.—Houston

[14th Dist.] 2009, pet. denied).

And finally, any interest in expressing the concern was outweighed

by the County's interest in promoting the efficiency of the public

services the County was attempting to perform through its employees in

the Department. See id; see also Graziosi, 775 F3d at 740-41. Anderson

acted within his discretion in concluding that the workplace could not

function as an efficient environment with her continued employment.

The First Amendment does not empower Davis to

“constitutionalize the employee grievance.” Garcetti, 547 U.S. at 420

(quoting Connick, 461 U.S. at 154). Her statements at the December

meeting were not constitutionally protected and her termination as a

result of the meeting was not a constitutional violation. As a matter of

law, the County’s reason for the termination was a permissible reason.

41
 B. The record establishes that the termination would have
occurred in the absence of an impermissible motivating
factor. The December meeting, not any impermissible
factor, was the cause of the termination. On this record,
damages cannot be awarded against the County.
A no-evidence review includes a determination of those facts

conclusively established. See City of Keller v. Wilson, 168 S.W.3d 802,

814-15 (Tex. 2005). The record conclusively establishes that Davis was

terminated because of the December meeting and was terminated for

that reason alone. 201

Furthermore, the age-discrimination statute does not anticipate the

recovery of damages when the employer demonstrates the termination

would have occurred in the absence of the impermissible motivating

factor even if age was also a motivating factor. TEX. LAB. CODE ANN.

§21.125(b). Because the record establishes as a matter of law Davis was

terminated for a permissible reason, and would have been terminated for

that reason alone, damages are not recoverable under the statute.

201
4RR87.

42
 The County did not plead Section 21.125(b). 202 But that is not

dispositive of the issue of plaintiff’s entitlement to damages on this

record. See TEX. R. CIV. P. 67. Plaintiff requested and obtained a jury

finding that in legal effect establishes she would have been fired for a

permissible reason. The issue was tried by consent. Moreover, as part of

the pretext and causation analysis, the issue concerns the legal

sufficiency of the evidence to support a causal link between age

discrimination and Davis’s entitlement to damages against the County

and implicates the County’s immunity to suit for damages. See generally

San Antonio Water Sys. v. Nicholas, __ S.W.3d__, No. 13-0966, 2015

WL 1873217 (Tex. Apr. 24, 2015) (legal sufficiency review and

immunity to suit). Conclusive evidence is given effect in a legal

sufficiency review. The evidence conclusively establishes the December

meeting was the reason for the termination.

1. Trial by consent

When a plaintiff requests and obtains a jury finding that in legal

effect establishes she would have been terminated in the absence of an
202
4RR87.

43
impermissible motivating factor, the entitlement-to-damages issue has

been tried by consent. See Ingram v. Deere, 288 S.W.3d 886, 893 (Tex.

2009); Sage St. Assocs. v. Northdale Const. Co., 863 S.W.2d. 438, 445-

46 (Tex. 1993). In Ingram, this Court explained that “[w]hen both

parties present evidence on an issue and the issue is developed during

trial without objection, any defects in the pleadings are cured at trial, and

the defects are waived.” Ingram, 288 S.W.3d at 893. The jury verdict

should be given the same effect it would be given had the County

pleaded that Davis was fired as a result of the December meeting. If that

reason is a permissible one, and it is, the County has established that she

would have been terminated anyway for a permissible reason. Under the

circumstances, damages are not recoverable as a remedy whether or not

age was a motivating factor. TEX. LAB. CODE ANN.§ 21.125(b).

2. Cause-in-fact

The jury was instructed that the plaintiff had to prove cause-in-fact

and proximate cause to recover damages. In construing a different

statute, this Court has noted: “we cannot conceive of causal connection

44
analysis without consideration of cause in fact.” Transcon. Ins. Co. v.

Crump, 330 S.W.3d 211, 224 (Tex. 2010).

In the court’s charge, cause-in-fact was defined as meaning that

defendant’s conduct must have played a “substantial part” in causing the

injury, and proximate cause was defined as requiring the damages be

foreseeable. 203 The jury was also instructed that to prove Davis’s speech

was a “substantial or motivating factor” meant that plaintiff must prove

it was “a substantial consideration that made a difference in or

influenced the Defendants’(s’) decisions.”204

The correctness of the jury instructions “ultimately has no bearing

on whether the trial court had jurisdiction.” San Antonio Water Sys.,

2015 WL 1873217, at *5. If the instructions are insufficient as a matter

of law to define cause-in-fact, proximate cause, substantial factor, or

motivating factor, this Court is not bound by how those terms were

defined in the jury charge in a suit against a governmental entity. See id.

“Sovereign immunity can be waived only by statute.” Id.

203
CR123-24.
204
CR123.

45
 When specifically asking the jury about age in Question 1, the

court instructed the jury in the charge that “a motivating factor” means

that age was “a reason” for the termination. 205 Otherwise, the court

charge used the terms “substantial” and “motivating” interchangeably.206

Those terms come from Mt. Healthy City Sch. Dist. Bd. of Educ. v.

Doyle, 429 U.S. 274 (1977), a case where, as here, a public employee

claimed retaliation for the exercise of a First Amendment right to free

speech.

The Court in Mt. Healthy held that the plaintiff had the initial

burden “to show that his conduct was constitutionally protected, and that

this conduct was ‘a substantial factor’ or to put it in other words, that it

was a ‘motivating factor’” in the defendant’s decision. Mt. Healthy, 429

U.S. at 287. The burden then shifted to the defendant to show that it

would have made the same decision in the absence of the protected

conduct. Id. Notably, the Supreme Court used “substantial factor” and

“motivating factor” as interchangeable terms. Id. at 287.

205
CR125.
206
CR131.

46
 The charge in this case used the terms “substantial” and

“motivating” as though they mean the same thing. 207 And they should.

With her age claim, regardless of remedies available, the plaintiff

initially is required to show that an impermissible reason was a

motivating factor—or in other words, a substantial factor—in the

termination decision. She did not meet her burden. But even if she had,

the December meeting—a permissible reason—was a substantial factor

for the termination.

This Court has defined the term “substantial factor” in other

contexts. In Crump, the Court explained that “substantial” denotes that,

to rise to the level of cause in a legal sense, “the act or event must be

such that reasonable jurors would identify it as being actually

responsible for the ultimate harm.” Crump, 330 SW3d at 224. In Bostic,

this Court applied a “substantial factor” test for causation in a

mesothelioma case. Bostic v. Georgia-Pacific Corporation, 439 SW3d

332 (Tex. 2014). The Court explained that “[w]hile but for causation is a

core concept in tort law, it yields to the more general substantial factor

207
See, e.g.,CR127,131.

47
causation in situations where proof of but for causation is not practically

possible or such proof otherwise should not be required.” Id. at 344.

Substantial factor and but-for are “overlapping concepts” and

“application of those tests usually lead to the same result.” Id. at 342.

This Court has noted that in some situations an actor’s conduct is not a

but-for cause “because another force would have caused the harm

anyway.” Id. at 345 A “substantial factor” finding means the termination

would have resulted from that factor alone. Id at 345. Because the

evidence conclusively establishes and the jury has found that the

December meeting was a substantial factor—or a motivating factor—

damages are not recoverable in her age claim or, as is addressed further

in issue five, under her other claims. The termination would have

resulted from the December meeting alone.

3. Causation in a pretext case

As part of Davis’s proof in her age claim, in the absence of direct

evidence, she was required to establish that the County’s reason for the

termination was a pretext. But as the County argued in its brief in the

Court of Appeals,

48
 It is interesting to note that at the urging of
Plaintiff’s attorney in closing argument the jury
found that the Plaintiff speaking to Doug
Anderson about the debt owed to her by Deb
Clark was a substantial or motivating factor in her
termination. (Jury Question No. 7). There was
absolute agreement in the record as to that fact.
If that speech then is not protected speech, and it
most surely is not, then the jury has agreed to a
legitimately based explanation for the
208
termination of this at-will employee.
In legal effect, the jury’s finding in response to question 7 establishes a

“legitimately based explanation for the termination.” 209

In Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 480 (Tex.

2001), the Court considered the standard of causation in a pretext age

discrimination case under the state statute, Texas Labor Code section

21.125. Stating that “[i]n the absence of meaningful Supreme Court

authority, we therefore enforce the statute’s plain meaning[,]” this Court

held that the “plain meaning of this statute establishes ‘a motivating

factor’ as the plaintiff’s standard of causation in a TCHRA unlawful

employment practice claim, regardless of how many factors influenced

the employment decision.” Id. at 480.
208
Appellant’s Court of Appeals Brief, p. 26.
209
Id.;CR131.

49
 After Quantum, the United States Supreme Court wrote on the

issue of causation under federal age discrimination law. In Gross, the

Supreme Court held that “a plaintiff bringing a disparate-treatment claim

pursuant to the ADEA must prove, by a preponderance of the evidence

that age was the ‘but-for’ cause of the challenged adverse employment

action.” Gross v. FBL Financial Services, Inc., 557 U.S. 167, 180

(2009). The Court added: “The burden of persuasion does not shift to the

employer to show that it would have taken the action regardless of age,

even when a plaintiff has produced some evidence that age was one of

the motivating factors in that decision.” Id.

The Court reiterated its holding in Gross in its opinion in Nasser,

stating that “[i]n Gross, the Court concluded that the ADEA requires

proof that the prohibited criterion was the but-for-cause of the prohibited

conduct.” Univ. of Texas Southwestern Medical Center v. Nassar,

__U.S. __, 133 S.Ct. 2517, 2523 (2013). In Nassar, the Court explained

that causation-in-fact is a standard requirement of any tort claim,

including “federal statutory claims of workplace discrimination.” Id. at

2524-25.

50
 The Court in Gross noted that a federal age-discrimination claim

proceeds under a different statute than other status-based discrimination

claims. Gross, 557 U.S. at 173-74. Chapter 21 of the Labor Code,

however, governs an age claim in the same manner as it does other

status-based discrimination claims. TEX. LAB. CODE ANN. § 21.125.

The Fifth Circuit has noted that this Court has not revisited the

standard of proof since Gross, and that the law apparently remains

unsettled under Texas law. The Fifth Circuit explained:

In light of Gross, one Texas court of appeals has
noted that Texas law is “unsettled” with respect to
whether or not the “but for” standard applies to
pretext-based age-discrimination claims under the
TCHRA. Hernandez, 350 S.W.3d at 284 (citing
Houchen v. Dallas Morning News, No. 3:08–CV–
1251–L, 2010 WL 1267221, at *11–12 (N. D.
Tex. Apr. 1, 2010)). The Hernandez court
determined that it does not, noting that the
statutory text of the TCHRA, unlike the ADEA,
expressly includes the “motivating factor”
standard. Id. at 285; see Tex. Lab. Code Ann. §
21.125(a). We reached the same conclusion in an
unpublished opinion. Jackson v. Host Int'l, Inc.,
426 Fed. Appx. 215, 219 n. 2 (5th Cir.2011)
(unpublished) (per curiam). Although we note the
issue here, we need not address it because Reed's
evidence fails to create a genuine issue of material
fact under either causation standard.

51
Reed v. Neopost USA, Inc., 701 F.3d 434, 440 n.3 (5th Cir. 2012).

A reasonable application of the state statute in a pretext case, a

case in which there is no direct evidence of discrimination, would

require that the age discrimination be the but-for cause in the employer’s

decision. But-for causation is, for example, the understood causation

standard in the burden-shifting Mt. Healthy cases. See Hartman v.

Moore, 547 U.S. 250, 260 (2006).

In this case, as in Reed, Plaintiff’s claim fails under either a “but

for” or “motivating factor” causation standard. Furthermore, Davis has

affirmatively established through the jury’s finding in answer to question

7 that she would have been terminated for a permissible reason

regardless of any other factor. Davis is not entitled to a recovery of

damages from Jefferson County.

II. Davis was not entitled to recover front pay.

“[F]ront pay is simply money awarded for lost compensation

during the period between judgment and reinstatement or in lieu of

reinstatement.” Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843,

52
846 (2001). The trial court awarded Davis $356,955 in front pay.210 The

Court of Appeals affirmed that award. That award was erroneous in the

first instance because front pay is not recoverable under Chapter 21 of

the Texas Labor Code.

A. Front pay is not recoverable under Chapter 21 of the
Texas Labor Code.
In rejecting the County’s argument that Davis can recover “back

wages and equitable relief only” and not front pay, the Court of Appeals

cited sections 21.2585(a) and (d) of the Texas Labor Code. Jefferson

County v. Davis, No. 14-13-00663, 2014 WL 4262184 *8 (Tex. App.—

Houston [14th Dist.] Aug. 28, 2014, pet. filed) (memorandum opinion).

That cite suggests that the court of appeals concluded front pay is

recoverable as compensatory damages. That is not the case under federal

law, and other Texas courts of appeals have followed the federal law.

In Pollard, the United States Supreme Court held that under Title

VII front pay does not constitute an element of compensatory damages.

Pollard, 532 U.S. at 852. The Court explained that front pay is

recoverable as equitable relief and “front pay is simply money awarded
210
CR155 (future pecuniary loss and future loss of benefits).

53
for lost compensation during the period between judgment and

reinstatement or in lieu of reinstatement.” Id. at 846.

Subsequently, several Texas courts followed that reasoning and

concluded that future lost earnings awards are not compensatory damage

awards and so are not subject to the caps under the state statute. See,

e.g., San Antonio Water Sys. v. Nicholas, 441 S.W.3d 382, 401-02 (Tex.

App.—San Antonio 2013), rev’d on other grounds, __S.W.3d__, No. 13-

0966, 2015 WL 1873217 (Tex. Apr. 24, 2015); Hoffman-La Roche, Inc.

v. Zeltwanger, 69 S.W.3d 634, 653 (Tex. App.—Corpus Christi 2002),

rev’d on other grounds, 144 S.W. 3d 438 (Tex. 2004). Following federal

authority, Texas courts consider front pay to be equitable relief available

under section 21.258(b) of the Texas Labor Code. Nicholas, 441 S.W.3d

at 404 (citing cases).

But the language of the federal statute construed by the U.S.

Supreme Court differs significantly from the language of the state statute

with respect to equitable relief. The federal statute gives federal courts

broad authority to grant equitable relief, stating that “the court may

enjoin the respondent from engaging in such unlawful employment

54
practice, and order such affirmative action as may be appropriate, which

may include, but is not limited to, reinstatement . . . or any other

equitable relief as the court deems appropriate.” 42 U.S.C. § 2000e-

5(g)(1) (emphasis added).

The Texas statute states that a court may “order additional

equitable relief as may be appropriate,” but then lists the specific types

of “additional equitable relief” available under the statute. TEX. LABOR

CODE ANN. § 21.258(a)(2), (b). Front pay is not included in the list of

additional equitable relief contained in section 21.258. Moreover, unlike

the federal statute, the state statute does not include the phrases “but is

not limited to” and “any other equitable relief.” Compare TEX. LAB.

CODE ANN. § 21.258 with 42 U.S.C. § 2000e-5(g)(1) (2014). If the

Texas Legislature had intended front pay to be recoverable, front pay

would have been listed as one of the remedies available under section

21.258(b), or the Legislature would have included phrases from the

federal statute such as “any other equitable relief” and “but is not limited

to.”

55
 Unlike the federal statute, then, the state statute does not permit the

courts to craft additional equitable relief not listed in the statute. Front

pay is not mentioned in the Texas statute or authorized by the language

of the statute and so any award in this case must be reduced by the

$356,955 awarded as front pay.

B. If front pay is an available equitable remedy under
Chapter 21, it is not recoverable in this case as a matter of
law.
If this Court finds that front pay is an available equitable remedy,

then front pay should be limited to a reasonable period sufficient for a

plaintiff “to reestablish her place in the job market.” Goss v. Exxon

Office Sys. Co., 747 F.2d 885, 889 (3d Cir. 1984) (“[F]ront pay: that is

an award for a reasonable future period required for the victim to

reestablish her rightful place in the job market.”). Front pay is not

recoverable as a matter of law based on the evidence in this case.

The judgment awards damages as though the termination of

Davis’s employment with the County would have prevented her from

ever reestablishing her place in the job market. 211 But that is not

211
CR155

56
supported by the evidence. Davis did not show that she was rendered

permanently unemployable as a result of the termination, and she did not

obtain a finding at trial that reinstatement or reemployment was not

feasible. See Wal-Mart Stores, Inc. v. Davis, 979 S.W.2d 30, 45 (Tex.

App.—Austin 1998, pet. denied) (“To recover front pay, a plaintiff must

show that reinstatement is not feasible as a remedy.”).

The economic damage award is based on the speculative testimony

of Davis’s nephew, who lacked knowledge concerning the retirement

program or salary policies at the County.212 His calculations assume a

guaranteed job through age 65 or 70, allowing the jury to guess how

long Davis would remain employed, though she was an at-will employee

considering retirement; the jury’s use of the age 70 is based on

speculation.213 The witness’s calculations unreasonably assumed no

earnings from any other source of employment. 214 Pollard, 532 U.S. at

849-854.

212
4RR128-130.
213
4RR121-130.
214
4RR121-130;8RR Plaintiff’s Exhibit 14.

57
 Davis’s nephew also assumed annual three percent increases in

salary without checking publicly available data to see what the actual

increase had been historically. 215 At first he offered no testimony on

present value. 216 After cross-examination on the issue, he was called

again the next day by Davis’s counsel, and then testified that the

damages could be reduced to present value using a one percent rate of

return, though he did not check the historical rate of return on

investment and did not modify his damage chart. 217 His opinion is

baseless speculation. Baseless opinions will not support a judgment even

when admitted without objection. See City of San Antonio v. Pollock,

284 S.W.3d 809, 816 (Tex. 2009). The award is not supported by legally

sufficient evidence.

Davis died shortly after the judgment was signed.218

Reinstatement as a remedy does not survive, so logically a claim for

front pay in lieu of reinstatement should not survive. But see generally,

Estate of Martineau, 203 F3d 904, 912-13 (5th Cir. 2000)(referencing
215
4RR126-127;6RR56-57.
216
4RR126-131.
217
6RR56-57; 8RR Plaintiff’s Ex. 14, 17.
218
Appellant’s Brief, page1, n.1.

58
death); see also TEX. R. APP. P. 7.1. But regardless of the survivability

of the remedy, the front pay award in this case is not supported by the

evidence, is excessive and is not appropriate, reasonable, or equitable.

Whether front pay is considered equitable relief or compensatory

damages, on this record the judgment grants a remedy against the

County in excess of that permitted by the statutory waiver of immunity

to suit.

III. Several federal courts and a Kentucky appellate court have
determined that the federal statutory damages cap is an
integral part of the statutory scheme and is not an affirmative
defense that must be pleaded. The Court of Appeals erred by
holding that the state statutory cap is an affirmative defense.

If the Court concludes front pay is recoverable as compensatory

damages, the damages are subject to the $300,000 cap under TEX. LAB.

CODE ANN. § 21.2585 (a), (d). The cap automatically applies because it

is an integral part of the statutory scheme under which Davis sought

damages. See Giles v. Gen. Elec. Co., 245 F.3d 474, 491 n.32 (5th Cir.

2002); Oliver v. Cole Gift Centers., Inc., 85 F. Supp. 2d 109, 111-12 (D.

Conn. 2000).

59
 The Court of Appeals held the County waived the caps and

challenges to the damages by not pleading or arguing the caps or

damage findings before the motion for rehearing. The court cited

opinions by other courts of appeals, and two opinions by this Court, one

distinguishing between immunity to suit and immunity to liability, and

another referring to a damages cap in another statute generally as a

liability limitation.

But the caps and other limitations on remedies in the

discrimination statutes are an integral part of the statutory structure

defining the power of a court to remedy discrimination. Giles, 245 F.3d

at 491 n.32 (5th Cir. 2001). Although not reaching the issue itself, the

Fifth Circuit noted another court had “reasoned persuasively” that the

federal statute’s cap is not an affirmative defense but instead is “an

integral part of the statutory scheme under which the plaintiff sought

damages.” Id. And two federal district courts in Texas have held that the

caps in the federal statute are not affirmative defenses that must be

pleaded. See, e.g., Soto v. LCS Corrections Servs., Inc., No. 2:12-CV-

130, 2013 WL 4012627, at *7 (S.D. Tex. Aug. 5, 2013); Paris v. Dallas

60
Airmotive, Inc., No. Civ.A.3:97CV0208-L, 2001 WL 881278, at *5

(N.D. Tex. July 30, 2001); see also Ortega-Guerin v. City of Phoenix,

No. CV 04-0289-PHX-MHM, 2006 WL 2403511, at *1-2 (D. Ariz.

Aug. 14, 2006) (same); Oliver, 85 F. Supp. 2d at 112 (same); Core Med.,

LLC v. Schroeder, No. 2009-CA-000670-MR, 2010 WL 2867820, at *4-

5 (Ky. Ct. App. July 23, 2010) (unpublished) (same).

The Fifth Circuit has explained also that the federal government

retains sovereign immunity for damages not expressly provided for by

statute. See Smith v. Office of Personnel Mgmt., 778 F.2d 258, 261 (5th

Cir. 1985). Chapter 21 should be applied in a similar way as the federal

statutes. See TEX. LAB. CODE ANN. § 21.001; see also Hoffmann-La

Roche, 144 S.W.3d at 445-46 (Chapter 21 is modeled after federal law

and “federal case law may be cited as authority in cases relating to the

Texas Act”).

Because the caps and equitable relief provided in the statute are

integral parts of the state statutory scheme, they should control the

extent of the waiver of the County’s immunity to suit as well as liability.

See Mission Consol. Ind. School Dist. v. Garcia, 372 S.W.3d 629, 637

61
(Tex. 2012); State v. Lueck, 290 S.W.3d 876, 881 (Tex. 2009). The

elements of a claim against a governmental entity are jurisdictional; the

failure to prove a claim also means the court has no jurisdiction. Univ. of

Houston v. Barth, 403 S.W.3d 851, 854-57 (Tex. 2013); Lueck, 290

S.W.3d at 881 (Tex. 2009). Similarly, the limitations on relief in the

statute should be treated as restricting a court’s jurisdiction or power to

award relief against a governmental entity.

A governmental entity can raise immunity to suit at any time

because it implicates the trial court’s subject matter jurisdiction. Rusk

State Hosp. v. Black, 392 S.W.3d 88, 95 (Tex. 2012); Manbeck v. Austin

Indep. Sch. Dist., 381 S.W.3d 528, 530 (Tex. 2012). The Court of

Appeals erred in ruling the remedy and cap challenges were waived and

in affirming an award of damages other than back wages.

A judgment that grants a remedy against a governmental entity not

expressly provided for by the statute also grants a remedy in excess of

that permitted by the statutory waiver of immunity to suit. See Garcia,

372 S.W.3d at 637; see also Smith, 778 F.2d at 261. If this Court

62
concludes that front pay is recoverable in this case as compensatory

damages, then the compensatory damages must be capped at $300,000.

IV. The Court of Appeals erred in ruling that the County waived
its challenge to the award of front pay and to the excessiveness
of the damage award.
Rule 38.1(f) provides that “[t]he statement of an issue or point will

be treated as covering every subsidiary question that is fairly included.”

TEX. R. APP. P. 38.1(f). Rule 38.9 provides that substantial compliance

with the briefing rules is sufficient, and that the courts of appeals can

require defects be corrected if necessary for a satisfactory submission of

the case. “Appellate briefs are to be construed reasonably, yet liberally,

so that the right to appellate review is not lost by waiver. Simply stated,

appellate courts should reach the merits of an appeal whenever

reasonably possible.” Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008)

(citation omitted). The Court of Appeals correctly determined that

Jefferson County challenged the lack of any evidence to support the

award of $500,000 for future mental anguish, and the Court ruled

correctly that there was no evidence of future mental anguish. Davis,

2014 4262184, at *9.

63
 The County also challenged in issue nine the verdict as outrageous

and excessive, and suggested the verdict was the result of a run-away

jury. 219 The County argued that the “evidence in this case simply fails to

support the award of the jury on which the judgment is based.” 220 The

County argued under issue seven, asserting there was no evidence of

discrimination, that if supported by the evidence the jury’s finding

“would entitle Plaintiff to a recovery of back wages and equitable relief

only.” 221 The Court of Appeals should have considered the challenges

and required additional briefing if necessary. See Weeks Marine, Inc. v.

Garza, 371 S.W.3d 157, 162 (Tex. 2012). If this Court does not render a

take-nothing judgment in favor of the County, the Court should remand

the case to the Court of Appeals for consideration of the challenges to

the excessiveness of the damages and to the entitlement to recovery of

damages.

219
Appellant’s Brief, pages 32-36.
220
Appellant’s Brief, page 36; see also 1CR143.
221
Appellant’s Brief, page 26.

64
V. The Court should reverse and render a take-nothing judgment
on all claims or, alternatively, remand the cause to the Court of
Appeals for consideration of those issues not decided by that
court.

In addition to her age discrimination claim, Davis claimed that the

County retaliated against her for opposing the transfer of Alyce

Williams and for opposing age or retirement comments, and violated her

First Amendment speech rights under the U.S. Constitution in various

ways.

A. But-for causation

Davis’s claims require proof of but-for causation. The evidence is

legally insufficient to support causation on each of her claims. The

evidence establishes her termination would have occurred anyway as a

result of the December meeting alone.

1. The Mt. Healthy rule

No liability can be imposed on an employer in free speech claims

like those asserted here when the employee would have been terminated

anyway. As the Supreme Court has explained:

65
 It may be dishonorable to act with an unconstitutional motive
and perhaps in some instances be unlawful, but action
colored by some degree of bad motive does not amount to a
constitutional tort if that action would have been taken
anyway.
Hartman v. Moore, 547 U.S. 250, 260 (2006). The Mt. Healthy rule is

that a public employee who is terminated for engaging in

constitutionally protected conduct is not entitled to any relief if the

employer would have terminated her anyway. Mt. Healthy City Sch.

Dist. Bd. of Educ., 429 U.S. 274, 285-86 (1977); Scott v. Flowers, 910

F.2d 201, 209 (5th Cir. 1990); Mooney v. Lafayette Cnty. Sch. Dist., 538

Fed. Appx. 447, 455 (5th Cir. 2013) (unpublished). The proof

requirement is but-for causation. Hartman, 547 U.S. at 260.

The evidence is legally insufficient to support the jury findings in

response to question 7 parts A, B, and C.222 The evidence is legally

insufficient to establish that but for the exercise of protected speech she

would not have been terminated. Rather, the evidence conclusively

establishes that she would have been terminated anyway as a result of

222
1CR131

66
the December meeting. The Court should reverse the judgment and

render a take-nothing judgment on all of Davis’s free speech claims.

2. The retaliation claims

In response to Questions 3 and 7C, the jury found Davis was

terminated for opposing the transfer of Alyce Williams. And in response

to question 7B, the jury found she was fired for opposing remarks about

her age or retirement. The findings are not legally sufficient to support a

retaliation claim, and the evidence is legally insufficient to support them.

There is no evidence that the transfer was a discriminatory

practice. Alyce Williams did not think it was, and Erickson explained he

made the decision that Williams would be the employee transferred

because he viewed her as an excellent employee. Rumors and

speculation do not constitute legally sufficient evidence. And the

evidence is legally insufficient to support a retaliation claim for the

reasons explained further in connection with her speech claims.

The evidence is also legally insufficient to prove but-for causation.

“The text, structure, and history of Title VII demonstrate that a plaintiff

making a retaliation claim under § 2000e–3(a) must establish that his or

67
her protected activity was a but-for cause of the alleged adverse action

by the employer.” Nassar, 133 S. Ct. at 2534. That is also the causation

standard under the Texas Labor Code for a retaliation claim. In Navy v.

College of the Mainland, the court of appeals explained:

[U]nlike claims for discrimination subject to section
21.125(a), which require just a “motivating factor” causation
standard, retaliation claims under section 21.055 are subject
to the traditional “but for” measure. Ptomey v. Tex. Tech
Univ., 277 S.W.3d 487, 497 & n. 11 (Tex. App. --Amarillo
2009, pet. denied) (relying on Pineda, 360 F.3d at 488–89);
see Univ. of Tex. Sw. Med. Ctr. v. Nassar, ––– U.S. ––––,
133 S.Ct. 2517, 2533, 186 L.Ed.2d 503 (2013) (discussing
the causation requirement for a retaliation claim brought
under Title VII). In other words, the plaintiff must prove that
he would not have suffered an adverse employment action
“‘but for’ engaging in the protected activity.” Medina v.
Ramsey Steel Co., Inc., 238 F.3d 674, 685 (5th Cir.2001);
Long v. Eastfield College, 88 F.3d 300, 305 n. 4 (5th
Cir.1996) (“[E]ven if a plaintiff's protected conduct is a
substantial element in a defendant's decision to terminate an
employee, no liability for unlawful retaliation arises if the
employee would have been terminated even in the absence of
the protected conduct.”).
Navy v. Coll. of the Mainland, 407 S.W.3d 893, 901 (Tex. App.—

Houston [14th Dist.] 2013, no pet.)

The evidence is legally insufficient to establish that but for her

opposition to the transfer of Alyce Williams, or to age or retirement

68
remarks, she would not have been terminated. Because the record

establishes Davis would have been terminated anyway even in the

absence of any protected speech or conduct, the Court should reverse the

judgment and render a take-nothing judgment on her retaliation claims.

B. Analysis of First Amendment claims

Davis’s free speech claims fail for other reasons as well. “To

establish a First-Amendment, free-speech retaliation claim under § 1983,

a public employee must show that (1) she suffered an adverse

employment action; (2) her speech involved a matter of public concern;

(3) her interest in commenting on matters of public concern outweighed

the defendant’s interest in promoting workplace efficiency; and (4) her

speech was a substantial or motivating factor in the defendant’s adverse

employment action.” Burnside v. Kaelin, 773 F.3d 624, 626 (5th Cir.

2014). And, as discussed above, even if she makes that showing, a

public employee who is terminated for engaging in constitutionally

protected conduct is not entitled to any relief if the employer would have

terminated her anyway. Scott, 910 F.2d at 209.

69
 Whether an employee’s speech involves a matter of public concern

and is protected speech is a legal question for the Court to decide.

Rankin v. McPherson, 483 U.S. 378, 386 n.9 (1987). Connick v. Myers,

461, U.S. 138, 148 n.7 (1983). Only “factual disputes as to whether

plaintiff’s protected speech was a substantial or motivating factor in the

adverse employment decision, or whether the employer would have

made the same employment decision in the absence of the protected

speech” are for the jury. Branton v. City of Dallas, 272 F.3d 730, 739

(5th Cir. 2001).

“Matters of public concern are those which can ‘be fairly

considered as relating to any matter of political, societal, or other

concern to the community.’” Id. (quoting Connick, 461 U.S. at 146). The

mere fact that the subject of the speech is one in which the public may

have a great interest is “of little moment.” Terrell v. Univ. Texas Sys.

Police, 792 F.2d 1360, 1362 (5th Cir. 1986). As the Court noted in

Connick, “to presume that all matters which transpire within a

government office are of public concern would mean that virtually every

remark—and certainly every criticism directed at a public official—

70
would plant the seed of a constitutional case.” Connick, 461 U.S. at 149

The Court added: “While as a matter of good judgment, public officials

should be receptive to constructive criticism offered by their employees,

the First Amendment does not require that a public office to be run as a

roundtable for employee complaints over internal affairs.” Id. “[W]hen a

public employee speaks not as a citizen upon matters of public concern,

but instead upon matters only of personal interest, absent the most

unusual circumstances, a federal court is not the appropriate forum in

which to review the wisdom of a personnel decision taken by a public

agency allegedly in reaction to the employee’s behavior.” Id. at 147.

Therefore, “[w]hen an employee speaks purely on a matter of

personal interest, clearly no constitutional protection attaches.” Chavez

v. Brownsville ISD, 135 Fed. Appx. 664, 669 (5th Cir. 2005) (citing

Benningfield v. City of Houston, 157 F3d 369, 375 (5th Cir. 1998)).

Similarly, speech pertaining to internal personnel disputes and working

conditions will not usually involve a public concern. Branton, 272 F.3d

at 739. Speech that consists exclusively of criticisms of the competence

71
of the speaker’s supervisor is not of public concern. Wilson v. UT Health

Center, 973 F2d 1263, 1269 (5th Cir. 1992).

To determine whether an employee’s speech addresses a matter of

public concern, courts examine the content, form, and context of a given

statement. Connick, 461, U.S. at 147-48. This requires an analysis of

each of the four events where she alleged her rights were violated.

C. Davis’s First Amendment claims

Davis alleged four events where she claimed her rights were

violated.

1. Meeting with Commissioner

Davis obtained jury findings that when Davis spoke to

Commissioner Domingue about the appointment of the Purchasing

Agent, she spoke as a citizen on a matter of public concern, the speech

was not purely job-related, the speech did not disrupt the work-place,

and that speech was a substantial or motivating factor in Davis’s

72
termination. 223 The evidence is legally insufficient to support the jury’s

findings.

There is no evidence that Davis’s meeting with Domingue before

Anderson was appointed Purchasing Agent was causally related to

Davis’s termination by Anderson approximately a year later. In Burnside

v. Kaelin, 773 F.3d 624, 629 (5th Cir. 2014), Burnside complained that

his First Amendment rights of freedom of speech and association were

violated when he was fired more than thirteen months after his protected

activities had occurred. Id. The court noted that Burnside’s complaint

alleged no facts linking the two events. The court stated that, “[w]ithout

such facts, we cannot plausibly infer that the termination was causally

related to Burnside’s First-Amendment conduct” and that, “without a

causal link between the termination and Burnside’s protected activities,

there can be no claim of a constitutional violation as a matter of law.” Id.

No evidence connects Davis’s meeting with Domingue before

Anderson was hired with her termination a year later. The meeting

occurred while Clark was serving as Interim Purchasing Agent. There is

223
CR128-31.

73
no evidence that Anderson knew about Davis’s meeting with Domingue

or that the meeting played any role in his decision to terminate her.224

See Beattie v. Madison County Sch. Dist., 254 F.3d 595, 603-05 (5th Cir.

2001). Davis failed to show that the meeting motivated the termination.

Although the jury found that the Domingue meeting involved a

matter of public concern, that was a question for the court, not the jury.

Connick, 461 U.S. at 147 n7. Assuming that Davis’s attendance at a

meeting where someone else (Williams) discussed their desires for the

characteristics of the next Purchasing Agent constituted “speech,” it was

not protected speech. According to all Department personnel, it was

perfectly proper for Department employees to talk to the commissioners,

including Domingue, who was on the Department Board. 225 Davis and

Williams hoped the Board would select a person of character, a leader,

because “the ongoing drama in the department was difficult.”226 They

spoke to their personal interest in eliminating the drama in the

Department and to internal personnel disputes and working conditions;

224
4RR57,87,94-96;6RR103,105-06.
225
2RR9.
226
2RR9.

74
this was not protected speech. Even if Davis had criticized Clark and

was fired for that, the criticism of her supervisor is not protected speech.

See Connick, 461 U.S. at 149; Caro v. City of Dallas, 17 F. Supp. 2d

618, 631 (N.D. Tex. 1998).

Davis claims a violation of her free speech rights when there is no

evidence that Anderson, the person who fired Davis, knew about the

meeting or cared about the meeting when he fired Davis approximately

a year later. The Court should render a take-nothing judgment on this

claim.

2. Age or retirement
Davis obtained findings that when she “opposed the remarks by

Doug Anderson about her age or retirement,” she spoke as a citizen on a

matter of public concern, and not on matters which were purely job-

related, that her speech was not disruptive, and that speech was a

substantial or motivating factor in Davis’s termination. 227 The evidence

is legally insufficient to support the findings. Essentially, this claim

attempts to avoid the proof requirements of an age discrimination claim,

227
CR128-31.

75
but the claim also fails for lack of evidence and as a matter of law. The

speech was not a matter of public concern and any speech about age and

retirement was not the cause of her termination.

Whether the speech involves a matter of public concern and is

protected speech is a legal question for the court to decide. Connick v.

461 U.S. at 147 n7; Rankin v. McPherson, 483 U.S. 378, n. 9(1987). “In

Connick, the Supreme Court taught that ‘when a public employee speaks

. . . as an employee upon matters only of personal interest, absent the

most unusual circumstances, a federal court is not the appropriate forum

in which to review the wisdom of a personnel decision taken by a public

agency allegedly in reaction to the employee’s behavior.’” Alexander v.

Eads, 392 F.3d 138, 142-43 (5th Cir. 2004).

In Eads, several plaintiffs had complained about a promotion

policy. Id. at 143. Their “concerns were voiced only in the form of

questions regarding each officer’s attempt to attain promotion, not about

general promotion policy” and the “form of these questions was clearly

private, as they were not leaked to a reporter or sent to an elected state

official.” Id. Holding that the context of the statements was “completely

76
private,” the court observed that no one could reasonably argue that the

complaints were made in the context of a widespread debate in the

community or would make valuable contributions to public debate. Id;

see also Haynes v. City of Beaumont, 35 S.W.3d 166, 179 (Tex. App.—

Texarkana 2000, no pet.).

Davis’s statements related to a matter of private concern and

involved a one-on-one discussion with Davis’s supervisor and general

discussion in a staff meeting. As in Eads, the statements “were clearly

private, as they were not leaked to a reporter or sent to an elected public

official.” Eads, 392 F.3d at 143. Any comment Davis may have made

was not made “against a backdrop of widespread debate in the

community” nor would they make a “valuable contributions to public

debate.” Id. at 143.

Furthermore, the evidence is legally insufficient to establish that

her termination was due to age, nor is there any evidence she was

terminated because of her opposition to any statement by Anderson

about age or retirement. She was terminated for a specific reason: the

77
December meeting. The Court should render a take-nothing judgment on

this claim.

3. The transfer

Davis obtained findings that, when she “opposed the transfer of

Alyce Williams to Deb Clark because Alyce Williams is a dwarf,” she

spoke as a citizen on a matter of public concern, and not on matters

which were purely job-related, that her speech was not disruptive, and

that speech was a substantial or motivating factor in Davis’s

termination. 228 The evidence is legally insufficient to support the

findings.

Even if Davis’s conversation with Clark is protected speech, these

jury findings do not support a judgment based on a violation of the First

Amendment because there is no evidence that Davis’s conversation with

Clark was a cause of Davis’s termination. Davis’s opposition to

Williams’s transfer was not a cause of her termination as a matter of

law.

228
CR128-31.

78
 The jury issue asked whether Davis was terminated due to her

speech in which she “opposed the transfer of Alyce Williams to Deb

Clark because Alyce Williams is a dwarf.” The record reflects only one

conversation between Williams and Clark on this issue.229 Davis

described the conversation this way:

I told her that—I asked her what she was gonna do about it
and I told her that I was willing to do something about it. I
told her I would even do it with her if that is what it would
take. But, she told me no, and she said that she was going to
handle it? 230

Davis testified that Clark told her that Clark did not know who she was

going to see, but at another point Davis testified that Clark said she was

already doing something about it.231 After Clark declined Davis’s offer

of assistance, Davis testified that she left it in Clark’s hands, and Davis

did not get back to her because she knew that Clark had talked to

somebody or was going to talk to somebody. 232 Davis testified that the

only person she complained to was her immediate supervisor, Clark. 233

229
5RR39.
230
5RR38-9.
231
5RR38;6RR51.
232
5RR38-39;6RR51.
233
5RR39;6RR52-53.

79
 Davis was not alone in her opposition to the transfer. Clark

opposed the transfer. She told Anderson it was not a good idea because

Alyce Williams handled all the paperwork and did a good job at it.234

Both Clark and Anderson were aware that the entire office staff was

opposed to the transfer. Clark told Anderson that the staff was concerned

about Williams being “fired,” which was the term the staff used for her

transfer. 235 According to Davis, everyone was talking about the transfer,

and Anderson called a meeting to discuss the issue with the staff.236

Everyone in the department was at the meeting, including Alyce

Williams. 237 Anderson explained that Williams was being transferred to

H.R., explained what her job would be, and explained the importance of

her job.238 Anderson did not fire the staff for being concerned about

Williams; instead he talked to them. 239

The opposition that Davis expressed was one conversation in

which she asked Clark what she was going to do about it and

234
3RR151;4RR62.
235
3RR153-54.
236
5RR39-40.
237
5RR40.
238
5RR41.
239
4RR22-23.

80
volunteered to help Clark oppose the transfer. There is no evidence to

support the jury finding that the one conversation had anything to do

with Davis’s termination.

There is no evidence that Anderson knew about the Clark-Davis

conversation about Williams’s transfer before Davis was terminated.

Davis failed to present evidence that her termination was retaliation for

protected speech. Beattie, 254 F.3d at 603-04. The evidence

conclusively establishes that Davis was fired as a result of the December

meeting. The Court should render a take-nothing judgment on this claim.

4. The debt

Davis obtained findings that, “when she spoke to Doug Anderson

in regards to the debt owed to her by Deb Clark” she spoke as a citizen

on a matter of public concern, and not on matters which were purely job-

related, her speech was not disruptive, and that speech was a substantial

or motivating factor in Davis’s termination. 240 The evidence is legally

insufficient to support the jury’s answers to Questions 4D, 5D, and 6D.

The County agrees that the December meeting, in which the debt was

240
CR128-31.

81
discussed, was a substantial or motivating factor in Davis’s

termination. 241 In fact, it was the cause of termination. But the December

conversation between Anderson and Davis was not protected speech.

Davis’s husband told Davis that “it’s not a whole lot of money but

I want my money back and I can get it back in small claims court.”242 He

had the paperwork, and she thought that he really was going to take

Clark to small claims court. 243 Davis decided that she should let

Anderson know.244

Davis’s version is that she told Anderson in the December meeting

that she tried hard to get the money from Clark, that Clark would not pay

it back, that her husband was pressing Davis, and that he was going to

take Clark to small claims court. 245 She recalls telling him that Clark

was talking about Anderson behind his back to people in the Department

241
CR131, Question 7D.
242
5RR44-45.
243
5RR45.
244
5RR46.
245
5RR46-47;6RR24-25.

82
and maybe even to people in the courthouse.246 When the meeting was

over, Anderson said that he would talk to Clark. 247

Anderson testified that Davis came in and leveled a number of

accusations against Clark and that the money was the last thing she

brought up.248 Davis complained that Clark had plotted to have

Anderson fired, that she had conspired against the previous purchasing

agent, that Clark had complained to her subordinates about spending late

hours at the office with Anderson, and that Clark’s husband was jealous

of the number of text messages and late hours at the office. 249 Anderson

testified that the last thing she mentioned was that Clark owed her

$300.250

Anderson testified that he tries very hard not to be angry but that

the conversation was very upsetting.251 Anderson called Clark in that

afternoon and told her that she needed to get a money order for $300 to

246
5RR47;6RR23.
247
6RR27.
248
4RR82,83.
249
4RR111.
250
4RR111.
251
4RR112.

83
repay Davis if she had borrowed the money. 252 She replied, “Yes, sir.”253

Clark testified that she told Anderson that she thought she had repaid

her. 254 At another point, she said she was not sure if she told him that,

explaining that she was being “hammered pretty hard” by Anderson.255

The next day, Anderson met with both Clark and Davis together.256

He gave Davis a money order for $300.00.257 Other than saying that

$300 was too much, Davis said nothing.258 Clark said nothing at all.259

Anderson said, “You are never to speak of this again. Ever.” 260 Davis

testified he looked at her and said, “You are reprehensible.”261 He

added: “This is the reason this department has such a terrible

reputation.”262 Neither Clark nor Davis said another word; they signed

the receipt and left. 263

252
3RR172.
253
3RR172.
254
3RR172.
255
4RR33-34.
256
5RR51.
257
5RR51.
258
5RR51.
259
5RR51.
260
5RR51.
261
5RR51.
262
5RR51.
263
5RR51.

84
 Anderson’s initial thought was that this was not going to work and

he decided to fire Davis. 264 He testified that “at that point I decided that

it was no longer going to be a worthy working relationship, and I

decided to terminate her at that point.”265 He waited three months before

terminating her because he did not want to terminate her at Christmas,

then there was a health issue in her family, and then she was on

vacation.266 In response to a question from Davis’s counsel, Anderson

agreed to this statement: “…well, the truth of the matter is if Donna had

never come to your office in December to talk about Deb, you never

would have made the decision to fire Donna.”267

Whether or not Anderson made the right management decision,

what was said in that meeting was not protected speech. When an

employee speaks purely on a matter of personal interest, no

constitutional protection attaches. Connick, 461 U.S. at 147; Chavez,

135 Fed. Appx. at 669; see Eads, 392 F.3d at 143; Stotter v. University

of Texas at San Antonio, 508 F.3d 812, 825-27 (5th Cir. 2007); Branton,
264
4RR94.
265
4RR58.
266
4RR93-94.
267
4RR87.

85
 272 F.3d at 739 (“[S]peech pertaining to internal personnel disputes and

working conditions ordinarily will not involve public concern.”); Finch

v. Fort Bend I.S.D., 333 F.3d 555, 563-64 (5th Cir. 2003).

Davis’s statements at the December meeting involved an internal

personnel dispute that was presented only to her department head in a

private meeting, was not against the backdrop of any widespread debate in

the community, and was related to her dispute with Clark about a private

debt. See Davis v. McKinney, 518 F.3d 304, 315 (5th Cir. 2008) (“Speech

related to an employee’s job duties that is directed within the employee’s

chain of command is not protected”). Davis’s speech at the December

meeting was not protected speech. The Court should render a take-nothing

judgment on this claim.

PRAYER

No meritorious cause of action exists for the termination of an at-

will employee as a result of the December meeting. Jefferson County

respectfully requests that the Supreme Court grant this petition for

review and reverse the lower court’s judgment, and:

86
1. Considering all the issues, render judgment that Donna Davis

recover nothing, or that she recover nothing on her age

discrimination claim and remand the cause to the court of

appeals for consideration of the issues not reached by that

court;

2. Alternatively, render judgment that Donna Davis recover no

front pay on her age discrimination claim, or that the

compensatory damages are capped at $300,000, and remand

the cause to the Court of Appeals for consideration of the

issues, including excessiveness, not reached by that court;

3. Alternatively, remand the cause to the court of appeals for

consideration of the front pay and excessiveness of the

award, and the issues not reached by the court;

4. Alternatively, remand the cause to the trial court for a new

trial.

Jefferson County requests all other relief to which it is entitled.

87
Respectfully submitted,

MEHAFFYWEBER, P.C.

By: /s/ David Gaultney
David Gaultney
State Bar No. 07765300
davidgaultney@mehaffyweber.com
MehaffyWeber, P.C.
823 Congress Avenue, Suite 200
Austin, Texas 78701
Phone: (512) 394-3840
Fax: (512) 394-3860

Patricia Chamblin
State Bar No. 04086400
patriciachamblin@mehaffyweber.com
MehaffyWeber, P.C.
2615 Calder, Suite 800
P.O. Box 16
Beaumont, Texas 77704
Phone: 409-835-5011
Fax: 409-835-5177

Jeremy Stone
State Bar No. 24013577
jeremystone@mehaffyweber.com
MehaffyWeber, P.C.
500 Dallas, Suite 1200
Houston, Texas 77002
Phone: (713) 655-1200
Fax: (713) 655-0222

88
 Kathleen Kennedy
Chief Civil Attorney
kkennedy@co.jefferson.tx.us
Office of Criminal District Attorney
1001 Pearl Street, 3rd Floor
Beaumont, Texas 77701
Phone: (409) 835-8550
Fax: (409-784-5893

ATTORNEYS FOR PETITIONER
JEFFERSON COUNTY, TEXAS

CERTIFICATE OF COMPLIANCE

This will certify that the foregoing Brief on the Merits complies
with the length requirements of Tex. R. App. P. 9.4(i). The Brief has
14,915 words in the document, not counting the contents excluded by
Rule 9.4(i)(1).
/s/ David Gaultney

89
 CERTIFICATE OF SERVICE

I hereby certify by my signature below that a true and correct copy
of this document has been forwarded to the following counsel of record
via electronic filing manager and e-mail on May 13, 2015.

Larry Watts Iain G. Simpson
Azuwuike "Ike" Okoro Okorafor Simpson, PC
Watts & Associates Iain@simpsonpc.com
wattstrial@gmail.com 1333 Heights Blvd., Suite 102
P. O. Box 2214 Houston, Texas 77008
Missouri City, TX 77459

ATTORNEYS FOR
RESPONDENT, DONNA DAVIS

/s/ David Gaultney

90
 NO. 14-1029
IN THE SUPREME COURT OF TEXAS

JEFFERSON COUNTY, TEXAS,
Petitioner
v.

DONNA DAVIS,
Respondent

ON PETITION FOR REVIEW FROM THE
FOURTEENTH COURT OF APPEALS, HOUSTON, TEXAS
No. 14-13-00663-CV

INDEX TO APPENDIX

Tab: Description:

A. Final Judgment
B. Jury Charge and Verdict
C. Court of Appeals Majority Opinion
D. Court of Appeals Dissenting Opinion
E. Supplemental Memorandum Opinion of Denial of
Rehearing
F. TEX. LAB. CODE ANN. § 21.125
G. TEX. LAB. CODE ANN. § 21.258
H. TEX. LAB. CODE ANN. § 21.2585
I. 42 U.S.C. § 2000e-5

91
 CAUSE NO B-182252

DONNADAVIS, § IN THE DISTRICT COURT
PlaintiH: §
V. § OF JEFFERSON COUNTY
§
JEFFERSON COUNTY, TEXAS, et al. §
Defendant. § 60TH DISTRICT COURT

FINAL JUDGMENT

BE IT REMEMBERED, that on February 25, 2013, this case was called

for trial by jury. Plaintiff, DONNA DAVIS, appeared personally and by her

attorneys, Larry Watts, Ike Okorafor, and Melynda Smith Lombardo and

announced ready for trial. Defendant(s) JEFFERSON COUNTY, DOUG

ANDERSON (personally), and DEBRA CLARK (personally) appeared (and) by

their attorney, Thomas Rugg, and announced ready for trial.

After a jury was impaneled and sworn, evidence and arguments of counsel

were presented. In response to an agreed jury charge and special interrogatories

the jury returned a unanimous verdict on March 4, 2013, which the Court received,

filed, and entered of record. A copy of the questions submitted to the jury and the

jury's findings are attached as Exhibit "A" and incorporated by this reference as if

set forth in full herein.

Therefore, the Court hereby RENDERS final judgment for the Plaintiff,

DONNA DAVIS, against JEFFERSON COUNTY as follows:

Page II

154
 Accordingly, the Court orders that Plaintiff recover the following from

Defendant JEFFERSON COUNTY, TEXAS:

1. Actual Damages totaling $1,312,145 and detailed below:

a. Damages for past mental anguish: $50,000

b. Damages for future mental anguish: $500,000

c. Damages for past loss of earning: $258,090

d. Damages for future loss of earning: $318,14 7

e. Damages for past loss of benefits: $147,100

f. Damages for future loss of benefits: $38,808

2. Prejudgment interest on the actual damages herein, in the amount of

$1,312,145, at the rate of 5.00% per annum from March 3, 2008, until the

date ofthis final judgment in the amount of $1,674,666.47 as ofMarch of

2013.

3. Post judgment interest on all of the above at the rate of5.00% per

annum, compounded annually, from the date this final judgment is entered

until all amounts set forth above are paid in full.

4. Reasonable and necessary attorney fees in the amount of$91,908.75 for

the prosecution of this case through to this final judgment.

5. Court cost and expenses totaling $1,867.58

155
 6. This final judgment finally disposes of all claims and all parties and is

appealable.

7. The Court orders execution to issue for this judgment.

SIGNED 01 ~ I j .d:?, 2013

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CAUSE NUMBER.B-182252

DONNA DAVIS, § IN THE DISTRICT COURT OF
Plaintiff. §
v. §
§ JEFFERSON COUNTY, TEXAS
JEFFERSON COUNTY, DOUGLAS §
ANDERSON, DEB CLARK, .§
Defendants. § 601h JUDICIAL DISTRICT COURT

CHARGE OF THE COURT

LADIES AND GENTLEMEN OF THE JURY:

This case is submitted to you by asking questions about the facts, which you must decide
:from the evidence you have heard in this trial. You are the sole judges of the credibility of the
witnesses and the weight to be. given their testimony, but in matters of law, you must ·be
· governed by the instructions in this charge. In discharging your responsibility on this jury, you
will observe all the instructions, which previously have been given you. I now shall give you
additional instructions, which you should carefully and strictly follow during your deliberations.

1. Do not let bias, prejudice or sympathy play any part iri. your deliberations.

2. In arriving at your ari.swers, consider only the evidence iJ;J.troduced here under oath
and such exhibitS; if any, as have been introduced for your consideration under .
the rulings of the cOurt -- that is, what you have seen and heard in this courtroom -
- together with the law as given to you by ·the court. In your deliberations, you
will not consider or discuss anything that is not represented by the evidence in this
case.

3. Since every answer that is required by the charge is important, no juror should
·state or consider that any required answer is not important.

4. You must not decide who you think should win, and then try to answer the
questions accordingly. Simply answer the questions, and do not discuss or
concern. yourselves with the effect of your answers.

5: You will not decide the answer to a question by lot Or by drawing straws, or by
any other method of chance. Do not return a quotient verdict. A quotient verdict
means that jurors agree to abide by the. result to be reached by adding together
each juror's figures and dividing by the number of jurors to get an average. Do
not do any trading on yolir answers; that is, one juror should not agree to answer.a
certain question one way, if others will agree to answer another question another
way.

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6. You may render your verdict upon the- vote of ten or mere members of the jury.
The same ten or more of you must agree upon all of the answers made and to the
entire verdict. You will not; therefore, enter into an agreement to be bound by a
majority or any other vote of less than ten jurors. if the verdict and all of the
answers therein are reached by unanimous agreement, the presiding juror· shall
sign the verdict for the entire jury. If any juror disagrees as to any answer made
by the verdict, those jurors who agree to all findings shall.each. sign the verdict.

These instructions are given to you because your conduct iS subject to review the same as
that of the witnesses, parties, attorneys, and the judge. If it ·shoUld be found that you have
disregarded any of these instructions, it will be considered jury misconduct and· it may require
another trial by another jury. If this should occur, all of our time will have been wasted.
A presiding juror or any other person who. observes a violation of the court's instructions
shall immediately warn the one who is violating the same and caution the juror not to do so again.

When words are used in this charge in a sense that varies from the meaning commonly
understood, you are given a proper legal definition. which you are bound to accept in place of
any other meaning.

Answer ''Yes~· or "No" to all questions unless otherwise instructed. A "Yes" answer must
be based on a "preponderance Of the evidence." The term "preponderance of the evidence"
means the greater weight and degree of credible testimony or evidence introduced before you
and admitted in this case. If you do not find that a preponderance of the evidence supports a
"Yes" answer, then answer "No." Whenever a question.requires an answer other than "Yes" or
''No," your answer still must be based on a preponderance of the evidence.

INSTRUCTIONS

Domia Davis claims that the Defendant(s), while acting ''under color of state law,"
intentionally deprived the Plaintiff of rights under the Texas Labor Code and the Constitution of
the United States.

Donna Davis claims that while the Defendant(s) were acting under color of authority of Jefferson
.County, Texas they intentionally violated the Donna DaVis's rights, both statutory and
Constitutional when they allegedly took adverse actions against her in the employment place.
The Plaintiff cl~s that the Defendant(s) discharged Donna Davis from employment because of
the Donna Davis's age, and her good faith opposition to the transfer of-Alyce Williams from the
Purchasing Department in 2007, in claimed violation ofthe Texas Labor Code. Donna Davis
further claims that other motivating reasons for claimed adverse actions taken against her by
Defen.dant(s) were her exercise of the rights of free speech under the First Amendment of the
Constitution of the United States.

A person may sue.for an award of money damages against Jefferson County or anyone who
violates the Texas Labor Code or who intentionally deprives a person "under color" of State law
or custom, ofDonna Davis' rights under the Constitution ofthe United States.

2

158
...
Thus, Donna Davis must prove by preponderance of the evidence each of the following:

1. That the actions of the defendant(s) were "under color" of the authority of Jefferson County,
Texas;

2. That Donna Davis' speech activities were constitutionally "protected" under the First
Amendment;

3. That Donna Davis' exercise of protected First Amendment rights was a substantial or
motivating factor in the Defendant(s) decision to discharge the Plaintiff from employment.

State or Local officials act "under color" of the governmental entity when they act within the
limits oftheir lawful authority. However, they also act ''under color'' of the authority of the State
when they act without lawful authority or beyond the bounds of their lawful authority if their acts
are done while the officials are purporting or pretending to act in the performance of their official
duties. An official acts "under color'' of the state authority if he abuses or misuses a power that
he possesses only because he is an official..

You are instructed as a matter of law that Douglas Anderson III, acted as Jefferson County•s
final authority in personnel actions taken against Donna Davis when acting as Purchasing Agent
for Jefferson County. ' ·

In determining whether the Defendant(s) intentionally violated Donna Davis' First Amendment
a
rights, you must remember that the Plaintiff as a public employee has right to practice freedom
of speech only when not purely related to her job, speaking about matters which concerned the
community, and to the extent that her speech did not unduly interfere with her duties and
responsibilities, or the workplace.

To prove that Donna Davis' speech activities were a substantial or motivating factor in the
Defendant's(s') decision, Donna Davis does not have to prove that those speech activities .were
the only reason the defendants made the decision. Donna Davis need only prove that the speech
activities were a substantial consideration that made a difference in or iirfluenced the
Defendant's(s') decision.

Donna Davis must also prove by a preponderance of the evidence that the act or failure to act by
the Defendant(s) was a cause in fact of the damage Donna Davis suffered. An act or fail"Ure to act
is a cause in fact of an injury or damages if it appears from the evidence that the act or omission
played a substantial part in bringing about or actually causing the injury or damages. Donna
Davis must also prove by a preponderance of the evidence that the act or failure to act by the
Defendant was a proximate cause of the damage Donna Davis suffered. An act or omission is a ·

3.

159
proximate cause of the Donna Davis's injuries or damages if it appears :from the evidence that
the injury or damages was a reasonably foreseeable consequence of the act or omission.

A fact may be established by direct evidence or by circpmstmitial evidence, or both. A
fact is established by direct evidence when proved by documentary evidep.ce, or by witnesses
who saw the act done or heard the words spoken. A fact is established by circumstantial
evidence when it may be fairly and reasonably inferred from other facts proved. ·

4

160
··'

QUESTION NO. l

Was age a motivating factor in Defendant's decision to terminate Donna Davis'
employment?

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.

An employer may act for a good reason, a bad reason, or any reason at all so long as it is
. not motivated on the basis of age.

~or No.
Answer: Yes

5

161
...

Ql]ESTION NO. 2

Was Donna Davis' opposition to Douglas Anderson's transfer of Alyce Williams made in good
faith?

Answer0. "no''.
Answer: Yes

6

162
..
QUESTION NO.3

Was Donna Davis' opposition to Douglas Atlderson's transfer of Alyce Williams a motivating

Answer ·e,
factor in Defendant's decision to terminate Donna Davis' employment?

''no".

Answer: _Y~e~s....___

7

163
...

QUESTION NO.4

1. Did Donna Davis speak as a citiZen and not on matters which were purely job-relat~
when she:

A. Spoke to Commissioner Domingue about the appointment of the Purchasing Agent?

Answer@rNo: Ye..s
B. Opposed the remarks by Doug Anderson about her age or retirement?

Answer:f}rNo Ye S
C. Opposed the transfer of Alyce Williams to Deb Clark because Alyce Williams is a dwarf?

Answer{ijrNo: Ves
D. Spoke to Doug Anderson in regards to the debt owed to her by Deb Clark?
.U
AnswerOr No:
u1es

8

164
......

QUESTION NO.5

Do you find from a preponderance of the evidence

l. That Donna Davis' comments did not substantially disrupte the efficiency ofthe work
done in purchasing department, when she:

A. Spoke to Commissioner Dorriingue about the appointment of the Purchasing Agenf?

Answe@rNo: Yes
B. Opposed the remarks by Doug Anderson about her age or retirement?

Answer~No: Yes

C. Opposed the transfer of Alyce Williams to Deb Clark because Alyce Williams is a dwarf?

Amwer@r No: ~ e.s

D. Spoke to Doug Anderson :in regards to the debt owed to her by_ Deb Clark?

Answerer No: YtS

9

165
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Do you find from a preponderance of the evidence ~r:
1. Donna Davis' speech related to or was on matters of political, social, or other concerns f'
to the community or on a matter ofpublic concern, when she: ~;::

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A. Spoke to Commissioner Domingue about the appointment of the Purchasing Agent? ...
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B. Opposed the remarks by Doug Anderson about her age or ~ent? jf':
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C. Opposed the transfer ofAlyce Williams to Deb Clark because Alyce Williams is a dwarf? ~-

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.D. Spoke to Doug Anderson in regards to the debt owed to her by Deb Clark?
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QUESTION NO. 7

Do you find from a preponderance of the evidence that Donna Davis' exercise of speech was a
substantial or motivating factor of Donna Davis • terminatio~ when she:·

A. Spoke to Commissioner Domingue about the ~ppointm.ent of the Purchasing Agent?

Answer6or No: Yes
B. Opposed the remarks by Doug Anderson about her age or retirement?

Answer: er No Yes
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C. Opposed the transfer of Alyce Williams to Deb Clark because Alyce Williams is dwarf?

Answer@r No: Ye..s .
D. Spoke to Doug Anderson in regards to the debt owed to her by Deb Clark?

-QNo= Y~x

11

167
..

. INSTRUCTIONS ON DAMAGES

Compensatory damages are not limited to economic damages and/or expenses that Donna
Davis may have suffered or incurred because ofDefendant•s conduct If Donna Davis wins, she
is also entitled to compensatory damages for the physical injury, pain and suffering, mental
anguish, shock and discomfort that she has suffered because of the defendant's conduct.

You may award compensatory damages only for injuries that Donna Davis proves were
proximately caused by the Defendant's allegedly wrongful conduct. The damageS that you award
must be fair compensation for all of Donna Davis' damages, no more and no less. Damages are
·not allowed as a punishment and cannot be imposed or ·increased to penalize the defendant. You
should not award compensatory damages for speculative injuries, but only for those injuries
which Donna Davis has actually suffered or that she is reasonably likely to suffer in the future.

If you decide to award compensatory damages, you should be guided by &$passionate
common sense. Computing damages may be difficult, but you must not let .that difficulty lead
you to engage in arbitrary guesswork. On the other hand, the law does not require that the
plaintiff prove the amount of his losses with mathematical precision; but only with as much
definiteness and accuracy as the circumstances permit You must use sound discretion in fixing
an award of damages, drawing reasonable inferences where you find them appropriate from the
facts and circumstances in evidence. You. should· consider the following elements of damage, to
the extent you. find them proved by a preponderance of the evidence:

· A. Damages Accrued
If you find for Donna Davis, she is entitled to recover an amount that will fairly compensate her
for any damages she has. suffered to date.

B. Calculation of Futm"e Damages
If you find that Donna Davis is reasonably certain to suffer damages in the future from her
injuries, then you should award her the amount you believe would fairly compensate her for such
future damages.

C. Reduction of Future Damages to· Present Value

An award of future damages necessarily requires that payment be made now for a loss
that Donna Davis will not actually suffer until some future date. If you should find that Donna
Davis is entitled to future damages, including future earnings, then you must determine the
present worth in dollars of such future damages. If you award damages for loss of future earnings,
you must consider two particular factors:

I. You should reduce any. award by· the amount of the expenses proven that Donna Davis would ·.
have incurred in making those earnings; . · ·

2. If you ma:ke an award for future loss of earnings, you must reduce it to present value.

12

168
 ...
....
"Mental anguish", as element of damages, implies relatively high degree of mental.pain
and distress; it is more than mere disappointment. anger, resentment, or embarrassment, although
.it may include all of those, and it includes mental sensations ofpain resulting from such painful
emotions as grief, severe disappointment, indignation, wounded pride, shame, despair and/or
public humiliation.

QUESTION NO. 8

What sum of money, if any, if paid now in cash, do you find from a preponderance of the
evidence would fairly and reasonably compensate Plaintiff for the damages, if any, that resulted
from her termination?

Consider the elements of damages listed below and no others. Consider each element
separately. Do not includ¢ damages for one element in any other element. -Do not include any
amount for interest. Answer in dollars and cents; if any.

(a) Counseling expenses incurred in the past

ANSWER: $__,.Qo:;._.._ __
· (b) Mental anguish in the past.

ANSWER: $ 50 3 000
(c) Mental anguish that in reasonable probability Plaintiff will suffer in the future.

ANSWER: $ 5 (){)1 em
(d) Loss of earnings in the past.

ANSWER: $ ~5$$j090
(e) Loss of eain:ings that in reasonable probability Plaintiff will suffer in the i\lture.

ANSWER: $ 3) ~} /47
· (f) Loss of retirement. health, medical, and life ~urance, and other similar fringe

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(g) Loss of retirement. health, medical, and life insurance, and other similar fringe
benefits that in reasonable probability Plaintiff will suffer in the future.

ANSWER: $ 3~J 208 .
13

169
 ·After you retire to the jwy room, you will select your own presiding juror. The first thing
the presiding juror will do is have this entire charge read aloud and then you will deliberate upon
your answers to the questions asked.

It is the duty of the presiding juror to:

1. Preside during your deliberations;

2. See that your deliberations are conducted in an orderly manner and in accordance
with the instructions in this charge;

3. Write out and hand to the bailiff any comm.unicationa concerning the case that
you desire to have delivered to the judge;

4. Vote on the questions;

5. Write your answers to the questions in the spaces provided; and

6. Certify to your verdict in the space provided for the presiding juror's signature or
obtain the signatures of all the jurors who agree with the verdict if your verdict is
less than urumiinous. · ·

You should not discuss the case with anyone, not even with other members of the jwy,
unless all of you are present and assembled in thejwy room. Should anyone ·attempt to talk to
you about the case before the verdict is retmned, whether at the courthouse, at your home, or
elsewhere, please inform the judge of this fact

When. you have answered all the questions you are required to answer under the
instructions of the judge, and your presiding juror has placed your answers in the spaces
provided and signed the verdict as presiding juror or obtained the signatures, you will inform the
bailiff at the door of the jwy room that you have reached a verdict, and then you will return. to
the courtroom with your verdict ·

14

170
..
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CERTIFICATE

We, the jury, have answered the above and foregoing questions as herein indicated, and

herewith return same to the Court as our verdict (to be signed by the presiding juror, if

unanimous).

(to be signed by those rendering the verdict if non- U1Janimous)

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MAR 0 ~ 2013
CI.Elfl

(a) Power of Commission to prevent unlawful employment practices

The Commission is empowered, as hereinafter provided, to prevent any person from engaging in any unlawful employment
practice as set forth in section 2000e-2 or 2000e-3 of this title.

(b) Charges by persons aggrieved or member of Commission of unlawful employment practices by employers, etc.; filing;
allegations; notice to respondent; contents of notice; investigation by Commission; contents of charges; prohibition on disclosure
of charges; determination of reasonable cause; conference, conciliation, and persuasion for elimination of unlawful practices;
prohibition on disclosure of informal endeavors to end unlawful practices; use of evidence in subsequent proceedings; penalties
for disclosure of information; time for determination of reasonable cause

Whenever a charge is filed by or on behalf of a person claiming to be aggrieved, or by a member of the Commission, alleging that
an employer, employment agency, labor organization, or joint labor-management committee controlling apprenticeship or other
training or retraining, including on-the-job training programs, has engaged in an unlawful employment practice, the Commission
shall serve a notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice) on
such employer, employment agency, labor organization, or joint labor-management committee (hereinafter referred to as the
“respondent”) within ten days, and shall make an investigation thereof. Charges shall be in writing under oath or affirmation
and shall contain such information and be in such form as the Commission requires. Charges shall not be made public by the
Commission. If the Commission determines after such investigation that there is not reasonable cause to believe that the charge
is true, it shall dismiss the charge and promptly notify the person claiming to be aggrieved and the respondent of its action. In
determining whether reasonable cause exists, the Commission shall accord substantial weight to final findings and orders made
by State or local authorities in proceedings commenced under State or local law pursuant to the requirements of subsections
(c) and (d) of this section. If the Commission determines after such investigation that there is reasonable cause to believe that
the charge is true, the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal
methods of conference, conciliation, and persuasion. Nothing said or done during and as a part of such informal endeavors
may be made public by the Commission, its officers or employees, or used as evidence in a subsequent proceeding without the
written consent of the persons concerned. Any person who makes public information in violation of this subsection shall be
fined not more than $1,000 or imprisoned for not more than one year, or both. The Commission shall make its determination
on reasonable cause as promptly as possible and, so far as practicable, not later than one hundred and twenty days from the
filing of the charge or, where applicable under subsection (c) or (d) of this section, from the date upon which the Commission
is authorized to take action with respect to the charge.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
§ 2000e-5. Enforcement provisions, 42 USCA § 2000e-5

(c) State or local enforcement proceedings; notification of State or local authority; time for filing charges with Commission;
commencement of proceedings

In the case of an alleged unlawful employment practice occurring in a State, or political subdivision of a State, which has a State
or local law prohibiting the unlawful employment practice alleged and establishing or authorizing a State or local authority to
grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof,
no charge may be filed under subsection (a) 1 of this section by the person aggrieved before the expiration of sixty days after
proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated, provided
that such sixty-day period shall be extended to one hundred and twenty days during the first year after the effective date of
such State or local law. If any requirement for the commencement of such proceedings is imposed by a State or local authority
other than a requirement of the filing of a written and signed statement of the facts upon which the proceeding is based, the
proceeding shall be deemed to have been commenced for the purposes of this subsection at the time such statement is sent by
registered mail to the appropriate State or local authority.

(d) State or local enforcement proceedings; notification of State or local authority; time for action on charges by Commission

In the case of any charge filed by a member of the Commission alleging an unlawful employment practice occurring in a State
or political subdivision of a State which has a State or local law prohibiting the practice alleged and establishing or authorizing
a State or local authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon
receiving notice thereof, the Commission shall, before taking any action with respect to such charge, notify the appropriate
State or local officials and, upon request, afford them a reasonable time, but not less than sixty days (provided that such sixty-
day period shall be extended to one hundred and twenty days during the first year after the effective day of such State or local
law), unless a shorter period is requested, to act under such State or local law to remedy the practice alleged.

(e) Time for filing charges; time for service of notice of charge on respondent; filing of charge by Commission with State or
local agency; seniority system

(1) A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice
occurred and notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice)
shall be served upon the person against whom such charge is made within ten days thereafter, except that in a case of an unlawful
employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency
with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving
notice thereof, such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged
unlawful employment practice occurred, or within thirty days after receiving notice that the State or local agency has terminated
the proceedings under the State or local law, whichever is earlier, and a copy of such charge shall be filed by the Commission
with the State or local agency.

(2) For purposes of this section, an unlawful employment practice occurs, with respect to a seniority system that has been
adopted for an intentionally discriminatory purpose in violation of this subchapter (whether or not that discriminatory purpose
is apparent on the face of the seniority provision), when the seniority system is adopted, when an individual becomes subject to
the seniority system, or when a person aggrieved is injured by the application of the seniority system or provision of the system.

(3)(A) For purposes of this section, an unlawful employment practice occurs, with respect to discrimination in compensation
in violation of this subchapter, when a discriminatory compensation decision or other practice is adopted, when an individual

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
§ 2000e-5. Enforcement provisions, 42 USCA § 2000e-5

becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application
of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid,
resulting in whole or in part from such a decision or other practice.

(B) In addition to any relief authorized by section 1981a of this title, liability may accrue and an aggrieved person may obtain
relief as provided in subsection (g)(1), including recovery of back pay for up to two years preceding the filing of the charge,
where the unlawful employment practices that have occurred during the charge filing period are similar or related to unlawful
employment practices with regard to discrimination in compensation that occurred outside the time for filing a charge.

(f) Civil action by Commission, Attorney General, or person aggrieved; preconditions; procedure; appointment of attorney;
payment of fees, costs, or security; intervention; stay of Federal proceedings; action for appropriate temporary or preliminary
relief pending final disposition of charge; jurisdiction and venue of United States courts; designation of judge to hear and
determine case; assignment of case for hearing; expedition of case; appointment of master

(1) If within thirty days after a charge is filed with the Commission or within thirty days after expiration of any period
of reference under subsection (c) or (d) of this section, the Commission has been unable to secure from the respondent a
conciliation agreement acceptable to the Commission, the Commission may bring a civil action against any respondent not
a government, governmental agency, or political subdivision named in the charge. In the case of a respondent which is a
government, governmental agency, or political subdivision, if the Commission has been unable to secure from the respondent
a conciliation agreement acceptable to the Commission, the Commission shall take no further action and shall refer the case
to the Attorney General who may bring a civil action against such respondent in the appropriate United States district court.
The person or persons aggrieved shall have the right to intervene in a civil action brought by the Commission or the Attorney
General in a case involving a government, governmental agency, or political subdivision. If a charge filed with the Commission
pursuant to subsection (b) of this section is dismissed by the Commission, or if within one hundred and eighty days from the
filing of such charge or the expiration of any period of reference under subsection (c) or (d) of this section, whichever is later,
the Commission has not filed a civil action under this section or the Attorney General has not filed a civil action in a case
involving a government, governmental agency, or political subdivision, or the Commission has not entered into a conciliation
agreement to which the person aggrieved is a party, the Commission, or the Attorney General in a case involving a government,
governmental agency, or political subdivision, shall so notify the person aggrieved and within ninety days after the giving of
such notice a civil action may be brought against the respondent named in the charge (A) by the person claiming to be aggrieved
or (B) if such charge was filed by a member of the Commission, by any person whom the charge alleges was aggrieved by the
alleged unlawful employment practice. Upon application by the complainant and in such circumstances as the court may deem
just, the court may appoint an attorney for such complainant and may authorize the commencement of the action without the
payment of fees, costs, or security. Upon timely application, the court may, in its discretion, permit the Commission, or the
Attorney General in a case involving a government, governmental agency, or political subdivision, to intervene in such civil
action upon certification that the case is of general public importance. Upon request, the court may, in its discretion, stay further
proceedings for not more than sixty days pending the termination of State or local proceedings described in subsection (c) or
(d) of this section or further efforts of the Commission to obtain voluntary compliance.

(2) Whenever a charge is filed with the Commission and the Commission concludes on the basis of a preliminary investigation
that prompt judicial action is necessary to carry out the purposes of this Act, the Commission, or the Attorney General in a
case involving a government, governmental agency, or political subdivision, may bring an action for appropriate temporary or
preliminary relief pending final disposition of such charge. Any temporary restraining order or other order granting preliminary
or temporary relief shall be issued in accordance with rule 65 of the Federal Rules of Civil Procedure. It shall be the duty of
a court having jurisdiction over proceedings under this section to assign cases for hearing at the earliest practicable date and
to cause such cases to be in every way expedited.

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§ 2000e-5. Enforcement provisions, 42 USCA § 2000e-5

(3) Each United States district court and each United States court of a place subject to the jurisdiction of the United States shall
have jurisdiction of actions brought under this subchapter. Such an action may be brought in any judicial district in the State in
which the unlawful employment practice is alleged to have been committed, in the judicial district in which the employment
records relevant to such practice are maintained and administered, or in the judicial district in which the aggrieved person would
have worked but for the alleged unlawful employment practice, but if the respondent is not found within any such district, such
an action may be brought within the judicial district in which the respondent has his principal office. For purposes of sections
1404 and 1406 of Title 28, the judicial district in which the respondent has his principal office shall in all cases be considered
a district in which the action might have been brought.

(4) It shall be the duty of the chief judge of the district (or in his absence, the acting chief judge) in which the case is pending
immediately to designate a judge in such district to hear and determine the case. In the event that no judge in the district is
available to hear and determine the case, the chief judge of the district, or the acting chief judge, as the case may be, shall certify
this fact to the chief judge of the circuit (or in his absence, the acting chief judge) who shall then designate a district or circuit
judge of the circuit to hear and determine the case.

(5) It shall be the duty of the judge designated pursuant to this subsection to assign the case for hearing at the earliest practicable
date and to cause the case to be in every way expedited. If such judge has not scheduled the case for trial within one hundred
and twenty days after issue has been joined, that judge may appoint a master pursuant to rule 53 of the Federal Rules of Civil
Procedure.

(g) Injunctions; appropriate affirmative action; equitable relief; accrual of back pay; reduction of back pay; limitations on
judicial orders

(1) If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment
practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice,
and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of
employees, with or without back pay (payable by the employer, employment agency, or labor organization, as the case may
be, responsible for the unlawful employment practice), or any other equitable relief as the court deems appropriate. Back pay
liability shall not accrue from a date more than two years prior to the filing of a charge with the Commission. Interim earnings
or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back
pay otherwise allowable.

(2)(A) No order of the court shall require the admission or reinstatement of an individual as a member of a union, or the hiring,
reinstatement, or promotion of an individual as an employee, or the payment to him of any back pay, if such individual was
refused admission, suspended, or expelled, or was refused employment or advancement or was suspended or discharged for any
reason other than discrimination on account of race, color, religion, sex, or national origin or in violation of section 2000e-3(a)
of this title.

(B) On a claim in which an individual proves a violation under section 2000e-2(m) of this title and a respondent demonstrates
that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court--

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§ 2000e-5. Enforcement provisions, 42 USCA § 2000e-5

(i) may grant declaratory relief, injunctive relief (except as provided in clause (ii)), and attorney's fees and costs demonstrated
to be directly attributable only to the pursuit of a claim under section 2000e-2(m) of this title; and

(ii) shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment,
described in subparagraph (A).

(h) Provisions of chapter 6 of Title 29 not applicable to civil actions for prevention of unlawful practices

The provisions of chapter 6 of Title 29 shall not apply with respect to civil actions brought under this section.

(i) Proceedings by Commission to compel compliance with judicial orders

In any case in which an employer, employment agency, or labor organization fails to comply with an order of a court issued in
a civil action brought under this section, the Commission may commence proceedings to compel compliance with such order.

(j) Appeals

Any civil action brought under this section and any proceedings brought under subsection (i) of this section shall be subject to
appeal as provided in sections 1291 and 1292, Title 28.

(k) Attorney's fee; liability of Commission and United States for costs

In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party, other than the
Commission or the United States, a reasonable attorney's fee (including expert fees) as part of the costs, and the Commission
and the United States shall be liable for costs the same as a private person.

CREDIT(S)
(Pub.L. 88-352, Title VII, § 706, July 2, 1964, 78 Stat. 259; Pub.L. 92-261, § 4, Mar. 24, 1972, 86 Stat. 104; Pub.L. 102-166,
Title I, §§ 107(b), 112, 113(b), Nov. 21, 1991, 105 Stat. 1075, 1078, 1079; Pub.L. 111-2, § 3, Jan. 29, 2009, 123 Stat. 5.)

Notes of Decisions (2308)

Footnotes
1 So in original. Probably should be subsection “(b)”.
42 U.S.C.A. § 2000e-5, 42 USCA § 2000e-5
Current through P.L. 113-296 approved 12-19-2014

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

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