Coastal Mart, Inc. v. Hernandez

Justice DORSEY.

This case concerns the sufficiency of the evidence to sustain a jury’s verdict that an employer unlawfully discriminated against an employee on the basis of sex. At trial, Coastal’s evidence showed that it had fired Hernandez due to his failure to properly perform the duties and responsibilities required of a Coastal Mart store manager, while Hernandez attempted to show that Coastal’s reasons for the termination were not the real reasons for his discharge and that sex discrimination was the real reason for his discharge. Because I conclude that there is no evidence to support the jury’s finding that sex was a “motivating factor” in Coastal’s decision to terminate Hernandez, I respectfully dissent from the majority’s opinion.

Section 21.125(a) of the Texas Labor Code provides that “an unlawful employment practice is established when the complainant demonstrates that ... sex ... was a motivating factor for an employment practice, even if other factors also motivated the practice_” Tex. Lab.Code Ann. § 21.125(a) (Vernon Supp.2002). The plain meaning of this statute establishes “a motivating factor” as the plaintiffs standard of causation in a Texas Commission on Human Rights Act unlawful employment practice claim, regardless of how many factors influenced the employment decision. Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 480 (Tex.2001).

*700Here the trial court instructed the jury that “ ‘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.” Thus Hernandez established an unlawful employment practice if he demonstrated that sex was a motivating factor in Coastal’s decision to terminate him. Proving the employer’s stated reason for the firing is pretext is ordinarily sufficient to permit the trier of fact to find that the employer was actually motivated by discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147-48, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); Quantum Chem. Corp., 47 S.W.3d at 481-82.

Legal Sufficiency

By issues one through four Coastal challenges the legal and factual sufficiency of the evidence to support the jury’s affirmative answer to question one, which stated, “Was gender a motivating factor in Coastal Mart, Inc.’s decision to discharge Alfredo Hernandez, Jr.?” The majority determined that the evidence was legally and factually sufficient to support the jury’s answer to this question. I disagree.

This Court will sustain a no-evidence point only if there is no more than a scintilla of evidence to prove the existence of a fact. Quantum Chem. Corp., 47 S.W.3d at 481. We review all the evidence in the light most favorable to the verdict and indulge every reasonable inference in favor of the verdict. Merrell Dow Pharms., Inc. v. Hamer, 953 S.W.2d 706, 711 (Tex.1997).

Hernandez introduced evidence showing that Coastal’s area sales manager, Robert Flores, made several remarks, which according to Hernandez, demonstrated sex-based animus in Coastal’s decision to terminate him. These remarks were heard by Reyna Torres, Hernandez himself, and Armando Vasquez.

Torres worked as an assistant manager at the McAllen Coastal Mart store where Hernandez was terminated. Hernandez supervised her at that store. She voluntarily left Coastal in September, 1994, and about a month later, Robert Flores offered her a job as a manager at the McAllen store, but she refused the offer. She testified that on one occasion Flores told her that she was the only one with a pleasant and professional voice on his voice mail.

Hernandez testified that at some point after Flores became his supervisor he overheard Flores tell a Coastal employee that he was spending a lot of time in Brownsville because there was a nice-looking female at one of the stores. Hernandez also testified that on several occasions Flores stated that females could do a better job in keeping the store clean and organized and that he would prefer having more female managers in the store because females do a better job than males. Hernandez stated that Flores made those statements around January and April of 1995. Hernandez was fired on June 15, 1995.

Armando Vasquez began working as a cashier for the McAllen store about mid-May, 1995. He had heard Flores complain that Hernandez did not keep a clean store. On May 30, 1995, Vasquez overheard Flores tell Hernandez about how a female could manage the store better than he could. Thereafter Vasquez heard Flores comment on how messy the store was and how a female could keep the store organized and clean. Vasquez testified that after Hernandez had gotten fired that day, Flores said something like “a woman could keep this store cleaner.” Vasquez also testified that on June 15, 1995, Flores advised him that a female was going to take over the store and she would make the *701store run smoother and better than Hernandez.

A defendant’s stray remarks may constitute sufficient evidence of discrimination if the comments are (1) related to the protected class of persons of which the plaintiff is a member; (2) proximate in time to the complained-of determinations; (3) made by a person with authority over the employment decision at issue; and (4) related to the employment decision at issue. Wal-Mart Stores, Inc., v. Bertrand, 37 S.W.3d 1, 10 (Tex.App.-Tyler 2000, pet. denied). While Flores’ remarks indicating he favored women managers over men satisfied the first three components of that test, they ultimately are not sufficient to show discrimination because the remarks were not related to the specific employment decision at issue in this case; i.e., Flores’ termination of Hernandez. The fact that the remarks were not tied to the alleged discriminatory employment action means they are not sufficient to create an inference that Hernandez’s termination was motivated by sex-based discrimination.

Even though Flores seemed to favor women for manager positions, no evidence — circumstantial or otherwise — was presented at trial to show that Flores actually fired Hernandez because he was a man and that he had the intention of replacing him with a woman. In fact, the evidence shows the contrary. When Flores began looking for a replacement for Hernandez, he did not request a female. Rather, he asked the other Coastal area sales managers in the Rio Grande Valley if they knew of anyone who was qualified for the job. Dan Sanchez recommended Yee-nia Milan because she had done an outstanding job managing a training store, and he felt she could manage the McAllen store. The evidence does not show that any manager recommended a male to replace Hernandez; rather, the undisputed evidence showed that Milan was the only person recommended to Flores and that he did not request a female replacement for Hernandez. Any inference of discrimination that may have arisen from the evidence of Flores’ discriminatory attitudes is offset by the evidence showing that Flores, in fact, did not act on his beliefs. Accordingly, given the evidence in the record supporting Hernandez, I conclude that there is no evidence to show that Hernandez’s sex was a motivating factor in Flores’s decision to terminate him. The evidence offered by Hernandez is no more than a mere scintilla and does no more than create a mere surmise or suspicion of a vital fact.

Factual Sufficiency

In reviewing a factual sufficiency point we are required to weigh all of the evidence in the record. See Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996). We may overturn findings only if they are so against the great weight and preponderance of the evidence that they are clearly wrong and unjust. See id. I conclude that there is also factually insufficient evidence to support the verdict.

The evidence showed that in August, 1994, Flores became the area sales manager for the McAllen store and began supervising Hernandez. His initial impression was that Hernandez was a very capable manager who was able to do his job. However his impression changed when he learned that Hernandez was having conflicts with customers, vendors, and a coworker.

These incidents prompted Flores to send a letter to Jerry Godwin, Coastal’s zone vice-president for the Rio Grande Valley, detailing the incidents and recommending that Hernandez be fired because of these problems. Godwin concurred in Flores’ decision to terminate Hernandez.

*702Flores denied that Hernandez’s replacement’s gender played any role in his decision to hiré her. In fact, Flores eventually demoted her, and she ultimately quit. Flores testified specifically that his decision to terminate Hernandez was not in any way based on gender and that, likewise, his decision to hire Milan (Hernandez’s replacement) was in no way based on gender.

Flores terminated Hernandez on June 15,1995. On that day he went to the store and gave Hernandez a separation notice, which showed that “reorganization” was the reason for termination. This notice stated:

As Area Sales Manager for Coastal Mart # 318, I am making a reorganization of the Store Manager position. This decision is based solely on my observations, documented customer complaints and employee concerns transcripts. The following is a list of the areas in which the present manager has demonstrated the lack of skill and/or ability to attain compliance as described by the Coastal Mart Store Manager Job Description and Responsibilities Manual:

The separation notice listed seven areas of concern that led to the termination. At trial, evidence was produced regarding six of the seven “areas of concern” mentioned in the separation notice. Those areas were customer service, employee relations, vendor relations, maintenance of a clean and well-organized facility, response time for promotional signs and displays and daily required bookkeeping. Evidence was presented showing that Hernandez was deficient in all those areas.

The reason for the termination articulated by Coastal was that Hernandez had conflicts with vendors, employees, and customers, that he did not keep his store clean, that he fell behind on his bookkeeping, and that he was late with promotional signs and displays. Hernandez admitted that he had problems with at least two vendors, that he had told a customer, Marcelino Torres,1 “to hell with you,” and that he did fall behind on his daily bookkeeping. Thus, Coastal gave legitimate, nondiscriminatory reasons for terminating Hernandez.

Accordingly I conclude that there is both no evidence and factually insufficient evidence to support the jury’s answer to question one. Coastal has shown that sex was not a motivating factor for the employment decision and has also articulated a legitimate, nondiscriminatory reason for the termination.

I would sustain issues one through four and render judgment that Alfredo Hernandez, Jr., take nothing by his suit against Coastal Mart, Inc.

. Marcelino Torres sent a letter to Robert Flores, Hernandez's supervisor, complaining about Hernandez's conduct. Hernandez later admitted that he had said this remark.