Office of the Attorney General of Texas v. Laura G. Rodriguez

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

OFFICE OF THE ATTORNEY §
GENERAL OF TEXAS, No. 08-14-00054-CV
§
Appellant, Appeal from the
§
v. County Court at Law No. 6
§
LAURA G. RODRIGUEZ, of El Paso County, Texas
§
Appellee. (TC#2010-1710)
§

OPINION

Laura G. Rodriguez sued her former employer, the Office of the Attorney General of Texas

(OAG), for retaliatory discharge under the Texas Whistleblower Act. See TEX. GOV’T CODE ANN.

§§ 554.001-.010 (West 2012). The trial court rendered judgment on the jury’s verdict and

awarded Rodriguez actual damages and attorney’s fees. The OAG appeals, contending that (1)

the evidence was legally and factually insufficient to support the finding that Rodriguez’

whistleblower report was a “but for” cause of her termination, and (2) Rodriguez failed to mitigate

her damages and was therefore not entitled to an award of “front pay” damages. We affirm.

BACKGROUND

Rodriguez began her career with the OAG Child Support Division (CSD) in El Paso,

beginning in 1982. Over the years, Rodriguez held a variety of positions with the CSD, and was
ultimately promoted in March of 2005 to become the CSD Regional Administrator (RA) over the

entire El Paso Region, known as Region 8. As the RA, Rodriguez was responsible for managing

all 145 employees who worked in the seven offices in the Region, which included offices in El

Paso, Midland, and Odessa. Each office performed a different function and had an office manager

for whom Rodriguez was responsible for directly supervising.

Rodriguez was hired for the RA position by Charles Smith, who at the time was the Deputy

Director of the Child Support Division, working in the OAG’s headquarters office in Austin; as

the Deputy Director, Smith was responsible for overseeing all nine CSD Regions in the State and

was Rodriguez’s immediate supervisor. During her tenure as RA, Smith evaluated Rodriguez’s

performance annually, beginning in September of 2005, and gave her outstanding evaluations for

her performance, until she received her final evaluation in December of 2009. In addition, under

her leadership, Region 8 performed exceptionally well, and was recognized as one of the leading

regions in the State of Texas for output.

The Whistleblower Report

Rodriguez’s whistleblower report centered on an email that her executive assistant, and

long-time friend, Debbie Galindo had sent to Carol King, an OAG benefits specialist, in December

of 2008, requesting that Annika Macias be placed on her insurance as her dependent, stating that

Annika was her then 24-year-old niece who had recently moved into her home. When Rodriguez,

who explained that she and Galindo shared access to each other’s email accounts, viewed the

email, she became concerned that Galindo might be committing insurance fraud, as she had

personal knowledge that Annika was not Galindo’s niece, and that she was instead the girlfriend

2
of Galindo’s son, Christopher Galindo.1 Moreover, Rodriguez was also personally aware that

Annika and Galindo’s son had signed a six-month lease on a house owned by Rodriguez’s sister

in August of 2008, and she therefore did not believe that Annika was residing with Galindo at the

time she sent the email.

Rodriguez, believing that she had a duty to report her suspicion of insurance fraud in

accordance with the OAG’s Fraud Waste and Abuse Prevention Program (FWAPP) policies,

reported the matter to Smith.2 Smith testified that his first reaction to the report was to question

why Rodriguez had been viewing Galindo’s email, advising her that he did not typically look at

other employee’s emails. Smith testified that he thereafter asked Rodriguez not to make a report,

and asked her to instead contact Galindo to seek clarification of what had occurred, despite the

fact that the FWAPP policy manual expressly provides that a reporting employee should not

confront a suspected individual, or conduct any additional investigation on her own.3 Rodriguez

advised Smith that she did not wish to confront Galindo, and that she instead wished to report her

concerns anonymously, as was her right to do under the FWAPP policy manual, which provides

that reporting employees are entitled to confidentiality and to have their identity “protected from

1
Galindo testified at trial that she was aware that as her supervisor, Rodriguez had access to her emails.
2
The OAG’s FWAPP program, formerly known as the Agency Integrity Program, was created in 2004, after then-
Governor Rick Perry issued an executive order in which he asked state agencies to implement programs to prevent
fraud, waste, and abuse in state agencies. The FWAPP policy manual provides that “[a]ny employee who becomes
aware of fraud, waste, or abuse has a responsibility to see that it is properly reported….” The policy manual defines
“fraud” as a “deception made for personal gain,” or “personal benefit,” which includes “a benefit for someone else,
such as a family member [or] friend[.]” The FWAPP policy manual provides that a report may be made to an
appropriate division chief, as well as the OAG’s Ethics Advisor, Director of Human Resources, or the Employee
Ombudsman. Smith acknowledged that, as a division chief, he was an appropriate person to whom to make a report
under the FWAPP policies.
3
The FWAPP policy manual expressly provides a list of acts to “avoid” after reporting a possible FWAPP violation,
which includes contacting the suspected individual to gain additional information, attempting to conduct an
investigation, and discussing the matter with coworkers.

3
disclosure to the extent possible.” Smith, however, testified that he found her reluctance to not

want to confront Galindo to be “odd,” and admittedly questioned her about why she was refusing

to do so. At the time, Rodriguez advised Smith that she did not want the report to interfere with

her working relationship with Galindo, but failed to disclose to Smith that she had a long-time

friendship with Galindo, and that Rodriguez’s sister had been renting a home to Galindo’s son and

Annika.

Although the OAG’s FWAPP policy manual provides that reports made to a division chief,

such as Smith, must be “promptly referred to the [OAG’s] Ethics Advisor,” Smith admittedly did

not report the matter to the Ethics Advisor; instead, on January 5, 2009, Rodriguez made an

anonymous phone call to Henry De La Garza, the agency’s Ethics Advisor, reporting her

suspicions. When De La Garza first received the information, he believed that Galindo may have

committed a crime when she sent her email to King, such as insurance fraud or providing false

information on a government document, and he referred the matter to the OAG’s Criminal

Investigations Division (CID) for review.

The Galindo Investigation

For reasons that are unclear from the record, the CID did not begin its investigation until

approximately three months later, in March of 2009, at which time a CID investigator interviewed

Galindo about her email. During her interview, Galindo admitted that Annika was not her niece,

but was instead her son’s girlfriend. She informed the investigator, however, that she

unintentionally named Annika as her niece, explaining that she had previously enrolled a niece on

her insurance two years earlier when the niece had moved in with her while she was attending

college in El Paso. Based on this information, the investigator concluded that Galindo had

4
provided “false information” in her email to King regarding her relationship to Annika, and that

Annika did “not meet the requirements to be a dependent eligible for enrollment.” The

investigator further noted that Annika had already made a claim on Galindo’s insurance.

When De La Garza received that report in May of 2009, he believed it was “incomplete”

for two reasons. First, he believed the report did not conclusively establish that Galindo was not

entitled to enroll Annika as a dependent “child” on her insurance, correctly believing that if Annika

was under 25 years of age, and had been living with Galindo as her dependent, Galindo could have

enrolled Annika as a dependent child, regardless of whether Annika was her niece or not. Second,

De La Garza believed that Galindo may have unintentionally described Annika as her niece, given

the excuse she provided to the investigator. On May 18, 2009, De La Garza therefore made a

“suggestion” that the CID investigators conduct a second investigation to determine where Annika

had been residing during the relevant time periods, as well as Galindo’s intent in sending her email

to King.

Before that investigation began, however, while Rodriguez and Smith were meeting on an

unrelated matter in late June of that year, the two discussed the status of the CID investigation.

Smith did not, and he therefore made inquiries to De La Garza and to Jo Kirkel, an attorney in the

OAG’s HR division, about the matter, and learned of De La Garza’a concerns that Annika might

have been living with Galindo and could therefore be claimed as her dependent. When Smith

communicated that information to Rodriguez, she advised Smith that she did not believe Annika

was residing with Galindo; Smith thereafter sent a follow-up email to Kirkel on June 30, 2009, to

relay that information to her. On that same day, Kirkel spoke with De La Garza and a CID officer

about the matter, and it was agreed that a second investigation would be initiated.

5
 A second investigator thereafter interviewed Galindo, who again insisted that Annika had

moved into her house in December of 2008 before she sent her email to King. During this

interview, Galindo explained that although Annika and her son had been renting a house from

Rodriguez’s sister during the relevant time period, Annika had moved out of the house, and into

her household with the couple’s young child, because they were having health issues due to a mold

issue in the house, while Christopher stayed behind in the rental house. Galindo also claimed that

she provided Annika with living expenses, including food and gas money, while she was living

with her. The investigator also interviewed Annika and Christopher, both of whom confirmed

Galindo’s version of the events. In addition, the investigator interviewed Rodriguez’s brother-in-

law, who was unable to confirm or deny that Annika had left the residence in December.

Rodriguez was also interviewed during the second investigation, and informed the

investigator that she had no ownership in the house in which Annika and Christopher had been

living, but that she had shown the couple the house on her sister’s behalf in August of 2008 when

they signed their lease, and that she and her husband had communicated with the couple thereafter

about the plumbing problems in the house during the months of November and December of 2008,

after which Rodriguez’s sister and her husband took over responsibility for managing the property.

In addition, Rodriguez testified that she had an arrangement in which Annika and Christopher gave

their rent payment to Galindo, who in turn gave the money to Rodriguez, who then gave it to her

sister. Rodriguez further advised the investigator that although the original rental payment was

set at $700 in the lease, during the last three months of their lease, the couple only paid her sister

$500 a month in rent to “compensate” for the plumbing and consequent mold problems in the

house. And finally, Rodriguez also volunteered to the investigator that she had been renting a

6
home that she and her husband owned to Galindo’s daughter during this same time period.

In July of 2009, the investigator provided De La Garza with a summary of his findings,

and reported that he could not make a conclusive determination regarding Annika’s residence

during the relevant time period, but that he nevertheless believed there was “sufficient evidence”

to demonstrate that Annika could properly be claimed as Galindo’s dependent. However, the

investigator did conclude that Galindo had made a false statement in her email when she stated

that Annika was her niece.

De La Garza interpreted the findings to mean that Galindo had not committed fraud and

had not violated the agency’s FWAPP policies; however, he did conclude that Galindo had made

a false statement in her email to Carol King, when she stated that Annika was her niece; he

conveyed his opinion to Smith, Kirkel, and the OAG’s human resources director, John Poole, by

email dated July 31, 2009.4 Thereafter, Smith made a recommendation to suspend Galindo for

five days, which was approved by Alicia Key, who at the time was the Deputy Attorney General

for Child Support, and was Smith’s immediate supervisor.5

Rodriguez’s Alleged Management Issues

In August of 2009, before Galindo received her suspension, Smith initiated an investigation

into various issues he believed existed with regard to Rodriguez’s performance as the RA for

Region 8. Smith testified that he made this decision in part because he had received two

anonymous letters from Rodriguez’s management staff complaining about her management style.

4
In addition, De La Garza testified that upon receiving this report, he became concerned about Rodriguez’s financial
relationship with Galindo, and spoke with Kirkel about that issue. Kirkel informed him that she believed Rodriguez
should be investigated for that relationship, but De La Garza testified that he was not involved in any such
investigation.
5
Smith filled this position when Key retired, and held that position at the time of trial.

7
The first letter had been received in November of 2007 from one of Rodriguez’s staff members,

expressing the opinion that Rodriguez was too controlling and threatening. Smith had admittedly

already spoken to Rodriguez about that letter in January of 2008, and had accepted her explanation

that it was likely from one of her office managers, Erika Picos, who Rodriguez believed was upset

with her because Rodriguez had recently been critical of her performance. 6 Smith also led

Rodriguez to believe that he did not give much credence to anonymous letters, but encouraged

Rodriguez to take steps to address the situation with Picos. Thereafter, Smith provided Rodriguez

with a positive annual evaluation on that issue in September of 2008, commenting positively on

the manner in which Rodriguez handled the situation, noting that it was her first management

challenge of this nature since she took over the RA position in 2005, and that she rose to the

occasion in addressing the issues she faced.

Smith testified that he received a second anonymous letter in July of 2009, claiming that

employees were leaving their employment with Region 8 because of Rodriguez, and that

Rodriguez had been continuing to harass and threaten her staff. In addition, Smith testified that

he had earlier in the year received at least one exit survey from a disgruntled employee, who also

complained about Rodriguez’s employment style. Smith believed that these complaints were

beginning to show a “pattern” of poor management on Rodriguez’s part and testified that this

changed his prior positive opinion about Rodriguez’s abilities to manage the Region.

The August 2009 Investigation Against Rodriguez

Smith testified that he did not personally have time to conduct the investigation, and he

6
As well, Rodriguez suspected that Picos was jealous of her, as Picos had unsuccessfully applied for the RA position
in 2005 when Rodriguez was hired for the job.

8
therefore sent two of his assistant deputy directors, Dalia Perez and Mara Friesen, to meet with the

various office managers in Rodriguez’s region to look into the complaints. After conducting

interviews with Rodriguez’s staff, Perez and Friesen concluded that Rodriguez’s management

team believed she was “overly critical and smothering,” and they no longer had confidence in her

ability to treat them well, or to run the Region. Perez and Friesen met with Rodriguez on August

13 or 14, 2009, to discuss their findings and concerns with her.

During that meeting, they discussed the anonymous complaints that Smith had received

complaining about her management style, and brought up the ongoing conflicts that she had with

Picos and other employees in the region. In addition, they brought up the fact that Rodriguez had

not yet filled an Office Manager position that the Region had in Office 807, which was primarily

tasked with performing case intake, after its office manager, Victor Alba, retired in February of

2009; in particular, they criticized her for allegedly trying to handle the manager duties for that

office on her own after Alba’s retirement while still trying to perform her duties as the RA.

Perez and Friesen also brought up the matter involving the Galindo investigation, and

criticized Rodriguez for her business relationship with Galindo’s family, advising her that they

believed it was inappropriate for her to rent to her employees’ family members. Rodriguez

recalled that when she tried to advise them that her relationship was not inappropriate, Perez and

Friesen appeared to not be listening to her, which prompted her to become emotional and to start

crying. Perez and Friesen thereafter reported back to Smith their negative findings about

Rodriguez’s management style, and their belief that Rodriguez had recently been exercising bad

judgment, particularly with respect to her business relationship with Galindo; in addition, they

reported that Rodriguez became “irrational” when they tried to discuss the impropriety of that

9
relationship with her.

Smith’s Request to have Rodriguez Administer Discipline to Galindo

Shortly thereafter, at Smith’s request, Perez informed Rodriguez that, as Galindo’s

supervisor, she was required to write a disciplinary report against Galindo imposing the five-day

suspension on her, and that she was to personally administer the discipline to Galindo. Rodriguez

followed Perez’s instructions and drafted the requested disciplinary report, which she emailed to

Perez on August 31, 2009. In her email, however, Rodriguez advised Perez that she thought it

was inappropriate for her to be involved in disciplining Galindo, citing the FWAPP’s policy that

a reporting employee should not be “privy to details or other information gathered during an

investigation[.]” In addition, in her email, Rodriguez expressed concern that the agency was not

following its own policy in simply suspending Galindo for what she believed was fraudulent

conduct, pointing out that the agency’s FWAPP policy manual provides that “[t]ermination is the

most probable disciplinary action when fraud or criminal activity is found.” Rodriguez apparently

received no response to the email.

Smith testified that he found it “strange” that she did not want to be involved in the

disciplinary proceedings, as she was Galindo’s supervisor, explaining that he did not believe that

the FWAPP policy manual applied to the situation, in light of the investigator’s finding that no

insurance fraud had occurred.7 Smith further suspected that Rodriguez may have been unwilling

to administer discipline to Galindo due to her conflict of interest and financial ties with Galindo,

7
Key also testified that she found it “odd” that Rodriguez refused to administer discipline to Galindo, as she believed
that Rodriguez had previously administered discipline to her employees in the past. Moreover, Key explained that
she did not consider Rodriguez to be a “whistleblower” at that time, even though Rodriguez had reported potentially
illegal conduct, and even though Key, who was an attorney, professed to be familiar with the Whistleblower Act.

10
and therefore believed that those ties were interfering with her job duties. And finally, he testified

that because Rodriguez had delayed in disclosing her financial ties to Galindo until the second

investigation occurred, he believed this “cast doubt” on the credibility of Rodriguez’s

whistleblower report itself.

Smith’s Request to Demote Rodriguez

During this same general time period in August of 2009, Rodriguez contacted Smith and

told him that she wanted to discipline one of her staff members, Greg Wills, for an issue that Smith

believed Wills had received a written warning about from Rodriguez earlier in the year.8 Smith

believed that this request was improper, as an employee could not receive discipline for an issue

for which he had already received a warning. He therefore concluded that this was another

example of Rodriguez exhibiting poor judgment in her management decisions.

On September 4, 2009, Smith drafted his first written request for Rodriguez’s termination,

which went through several revisions, concluding with a final draft on September 10, 2009.

Smith’s Request for Termination referenced the staff complaints that Smith had received with

regard to Rodriguez’s management style, including the November 2007 anonymous letter; the

August investigation, which revealed that Rodriguez had management issues; Rodriguez’s failure

to timely replace the Office Manager for Office 807 when the former manager, Alba, retired in

February or March of 2009; her attempts to run that office on her own, which he believed interfered

with her ability to perform her RA duties; and Rodriguez’s request to provide additional

disciplinary action to Greg Wills. In addition, the Request for Termination described the Galindo

8
There was evidence, however, that Rodriguez made this request because of additional performance issues that
occurred after the warning was given.

11
investigation at length, and referred to Rodriguez’s request not to administer disciplinary action to

Galindo, which Smith characterized as being “strange.” In the Request, Smith also expressed his

mistaken belief that Rodriguez had leased property to both Galindo’s son and daughter, and

concluded with his opinion that when “managers enter into business relationships with

subordinates and/or their children, it shows a lack of judgment because the arrangement can

compromise their ability to effectively perform all of the duties of their position.”

After reviewing the request for termination, Kirkel advised Smith that she believed

Rodriguez should be demoted rather than terminated, based on the agency’s treatment of a

similarly-situated RA in Dallas, who was demoted rather than terminated for similar performance

issues. Thereafter, on September 17, 2009, Smith made a written Request for Demotion, in which

he stated that Rodriguez’s “management style continues to generate complaints,” and that she had

“failed to make sound decisions and created a conflict of interest which inhibits her ability to fully

discharge her management responsibilities.” Smith attached an “Employee Performance/

Disciplinary Report” to the Request, in which he referred to the complaints he had received about

Rodriguez’s management style during the last three years, as well as the Region’s “high turnover

rate among its management staff.” The report further stated that Smith had made numerous

attempts to counsel Rodriguez about her management issues, and that he had instructed her to

“refrain from personally running offices when management vacancies occur” (apparently referring

to the vacancy in the 807 office), but that Rodriguez’s performance had continued “to fall short.”

The Request concluded with a statement that Rodriguez was being demoted as the “result of [her]

recent actions and a subsequent discovery of a conflict of interest involving one of [her] direct

12
subordinates[.]”9 Key recalled that she approved the Request for Demotion based primarily on

Smith’s concerns about Rodriguez’s management style.

Rodriguez’s “Voluntary” Demotion to the Office Manager Position

On September 22, 2009, Rodriguez sat in on a meeting in her office in El Paso, in which

Smith and Perez administered the five-day suspension to Galindo. After Galindo received her

discipline and left the office, Smith began to speak with Rodriguez about the management

problems he perceived she was having in her role as RA. Rodriguez recalled that Smith advised

her that he was there to remove her as the RA, and that she asked if she could request a “voluntary”

demotion; however, Smith claimed that he never got that far in the conversation before Rodriguez

advised him that she was under a lot of stress both at work and at home, asked if she could take

for a “voluntary” demotion. In any event, Smith agreed to the request for a voluntary demotion,

and initially offered Rodriguez a position as the manager for the call center—an office in which

Rodriguez had previously worked—but Rodriguez asked if she could take the position that had

been left vacant upon Alba’s retirement in Office 807. Because her request was considered

voluntarily, Smith was not required to, and did not, share the demotion memo with her at that time.

The next day, Smith provided Rodriguez with an oral warning regarding the complaints he

had previously received about her, which was memorialized in an Employee Disciplinary Report.

In addition, Smith brought up the “conflict of interest” he believed she had with Galindo, and

cautioned her to avoid business relationships with her employees in the future. At Smith’s

direction, Rodriguez started her position as the Office 807 manager the next day, September 23,

9
We note, however, that at trial, De La Garza testified that because Rodriguez’s relationship was with a family
member and not with the subordinate herself, the relationship did not technically violate any OAG policy in
existence at that time, and did not create a conflict of interest.

13
2009.10

Rodriguez testified that she was unable to focus all of her attention on her new job initially

because she was required to draft annual evaluations for her former staff, and perform other “close

out” tasks with regard to her RA position, which took her through the month of October of 2009.

Rodriguez testified that she realized in November that the office had a significant backlog of

unopened cases, and other cases that had not yet been transferred to the appropriate office. Before

the new RA was hired, she primarily worked with Smith, who made changes in staff to the office,

which Rodriguez believed slowed down the office’s progress and prevented the office from

meeting targeted goals.

Thereafter, when Oneida Duberney, the new RA for the region started in January of 2010,

Duberney made additional changes in procedures in the office, and immediately began making

repeated requests of Rodriguez for information pertaining to the backlog and the number of cases

awaiting to be opened and transferred, assigning one of Rodriguez’s staff members, Jeff Brewer,

to assist her with that task; according to Rodriguez, these changes and constant demands also

hindered her ability to successfully manage the office.

Rodriguez’s Request to Investigate Smith for Retaliation

In the meantime, on December 22, 2009, Rodriguez received her final annual evaluation

for her performance as the RA for the fiscal year ending in September of 2009. The evaluation

generally praised Rodriguez’s knowledge, talent, and abilities, and stated that she exceeded

performance standards in various categories, and that the Region’s performance exceeded

standards in terms of meeting performance goals and measures during the 2009 fiscal year. The

10
Rodriguez suffered a 29.8% salary decrease due to the demotion, with her salary being reduced from $8,925 a
month down to $6,872.25 a month.
14
evaluation also stated that Rodriguez met “Most Standards” with respect to her “Leadership and

Decision Making,” and “Communication” with her staff, but criticized her for her failure to

“connect” with members of her management team “throughout her tenure as the RA.” The

evaluation also stated that during that fiscal year, Smith had “several complaints” about Rodriguez

from management staff, as well as anonymous letters regarding her communication style. The

evaluation further stated that during the “summer months,” Rodriguez had “made a series of

mistakes and missteps,” but did not state what those mistakes or missteps were. And finally, the

evaluation stated she did not meet the standards set forth in the category of “Standards & Ethics,”

stating that “it was revealed during an investigation of another employee,” that Rodriguez had

entered into a “business arrangement” with a subordinate’s family member, which he believed

“cast doubt” on Rodriguez’s “initial complaint” and created a “conflict of interest,” which he

believed kept her from “administering a disciplinary action against the employee.”

Rodriguez prepared a “rebuttal” to the evaluation, which she sent to Smith, as well as to

OAG ombudsman, Grace Meyer, and the OAG’s human resources director, John Poole, on January

3, 2010. In her rebuttal, Rodriguez asserted that Smith had made various false statements in the

evaluation, including his statement that she had management issues “throughout [her] tenure as

the RA,” noting that she had previously received positive evaluations from Smith in this category

in her four prior evaluations as RA. In addition, she argued that she never received any formal

complaints or grievances from her staff during her tenure as RA, and pointed out that she was

never disciplined for any of the listed management issues. Rodriguez also complained that Smith

never specified what “mistakes” or “missteps” she had allegedly made during the summer months

of 2009, and asked for additional information about those matters.

15
 And finally, Rodriguez addressed the fact that Smith had called her credibility into question

in making her report about Galindo’s email, pointing out that she made her report in accordance

with the OAG’s FWAPP policies, and that her relationship with Galindo and/or her family had

nothing to do with her decision to make the report. In addition, she asserted that her request not

to administer disciplinary action to Galindo was not due to any conflict of interest, and was instead

also made in accordance with FWAPP policies that prohibited her from doing so. She concluded

by asserting that she was a valued and respected employee before she made her report about

Galindo, and claimed that she thereafter became a “target” of management; she further asserted

that Smith’s poor evaluation of her constituted “retaliation” for her report of suspected illegal

activity, and she requested a prompt investigation into that matter.11

Rodriguez thereafter sent an email to Poole, dated January 29, 2010, which she copied to

Meyer, expressly requesting that a “fair and prompt investigation be conducted to look into [her]

claim of retaliation” against Smith. Poole thereafter forwarded Rodriguez’s email to Kirkel that

same day, and also sent copies of the email to De La Garza, Meyer, and Smith. Kirkel responded

to Rodriguez by email dated February 16, 2010, stating that she would like to meet with Rodriguez

later that month with regard to her claim of retaliation.

Meanwhile, Rodriguez hired an attorney to assist her with obtaining an investigation into

her claim of retaliation. On February 17, 2010, Rodriguez’s attorney sent a letter to Poole,

explaining that she had been retained to represent Rodriguez regarding “various issues with her

employment, including claims of discrimination and retaliation.” In her letter, Rodriguez’s

11
Smith did not respond directly to Rodriguez’s claim of retaliation or her request for an investigation, and instead,
advised Rodriguez that if she wished to receive additional information with regard to any matters that were contained
in his evaluation, she could do so by contacting the Agency’s Public Information Coordinator, who was responsible
for handling all requests for public information held by the OAG.
16
attorney objected to Kirkel’s offer to meet with Rodriguez about her claim of retaliation, noting

that Kirkel had been involved in the Galindo investigation, which was “the subject of

[Rodriguez’s] current complaints,” and asked that another investigator be assigned to the matter.

On February 19, 2010, Poole referred Rodriguez’s attorney to Grace Meyer, the OAG’s

ombudsman.

The Ombudsman Complaint

On March 11, 2010, Rodriguez’s attorney filed a written complaint on Rodriguez’s behalf

with the Ombudsman, claiming that Smith had discriminated against her and that he had taken

“retaliatory action” after she filed her report about Galindo’s “illegal conduct.” 12 In her

Ombudsman complaint, Rodriguez once again asked that a “full investigation be conducted by an

independent, objective and fair investigator,” into her complaints of retaliation. In addition, as

explained in more detail below, Rodriguez claimed that she was being subjected to “harassment”

by OAG by the new RA, Oneida Duberney, and asked that such harassment “immediately cease

and desist.”13

Rodriguez and her attorney thereafter had a telephone conference with Meyer on March

24, 2010, at which Meyer requested additional documentation of Rodriguez’s claim that she was

being harassed by Duberney. Rodriguez’s attorney provided Meyer with the requested

information on April 2, 2010, which included, among other things, correspondence between

12
The FWAPP manual states that: “Retaliation or harassment against someone who reports a possible FWAPP
violation in good faith will not be tolerated and may lead to disciplinary action. Retaliation or harassment should be
reported immediately to the Director of Human Resources or the Employee Ombudsman.”
13
In addition, Rodriguez’s attorney sent an email to Poole dated March 10, 2010, stating that she was formally
invoking Rodriguez’s right to “applicable appeal or grievance procedures, pursuant to Texas Government Code
§554.006 and any applicable policies of the Office of the Attorney General, to the extent such has not already
occurred…” However, the record does not contain any response from Poole.
17
Rodriguez and Duberney regarding Duberney’s multiple requests for information pertaining to the

backlog that existed in processing cases in Office 807. On March 30, 2010, Meyer emailed

Duberney, asking to speak with her about an “employee situation,” and Duberney agreed to meet

the next day. The record is silent, however, on whether Meyer and Duberney met.

On April 7, 2010, Rodriguez’s attorney emailed Meyer and asked if the OAG intended to

conduct an investigation into Rodriguez’s complaint. On that same day, April 7, 2010, Meyer

issued her decision on Rodriguez’s complaint, stating that her recommendation was that the

“division action” (apparently referring to her demotion) would remain unchanged. She further

expressed her recommendation that Rodriguez should continue to work with Duberney to “resolve

differences that may arise.” Meyer concluded by stating that if Rodriguez was dissatisfied with

her decision, she could request a review from Alicia Key. Meyer’s decision, however, did not

address Rodriguez’s claim that Smith had retaliated against her, or her request for an investigation

of that matter.

Rodriguez’s Termination from the Office Manager Position

The day after Rodriguez filed her Ombudsman complaint with Meyer, Duberney drafted

her first request to terminate Rodriguez, which was dated March 12, 2010. The request went

through several revisions, ending with her final Request for Termination, signed by Duberney and

Morgan on April 7, 2010, and by Smith on April 8, 2010.

In the Request, Duberney listed several reasons for the proposed termination, beginning

with two meetings that Rodriguez had missed; Rodriguez’s failure to adequately address the

various “backlogs” in the office; her failure to meet self-imposed deadlines for addressing the

backlog; and her failure to meet the “seven-day order entry time frame,” imposed by federal law

18
for opening newly-filed cases. Duberney further explained that she had requested information

regarding the number of cases that the office had transferred to other offices in January and

February of 2010, and that she believed Rodriguez had improperly inflated those numbers. In

conclusion, she stated that she was requesting the termination due to Rodriguez’s “continuing

failures to (1) effectively assume managerial responsibilities, (2) follow her RA’s directives, and

(3) adhere to agency policy and procedures are the bases for this request to terminate Ms.

Rodriguez, effective immediately.”

Key testified that she approved the Request for Termination based solely on her review of

the information contained in the Request, and that she did not conduct any independent

investigation. Key testified, however, that she did not know at the time she approved the

termination that Rodriguez had filed a complaint of retaliation against Smith, and acknowledged

that this may have been an important factor for her consideration.14

Rodriguez’s Search for a New Job

After her termination, Rodriguez searched for another job with the State of Texas and/or

El Paso County with comparable pay for over a year and a half after she was terminated, explaining

that she was seeking employment with those governmental entities, as she needed to accrue

additional years with one of those entities in order to fully vest in the State’s retirement system.

However, for a variety of reasons, including the fact that her job skills were highly specialized and

only applicable to the child support field, and the fact that she was required to disclose that she

14
The Request for Termination had a space for Key’s signature, but it was not signed by her. Although Key
admittedly did not sign the Request for Termination, she testified that she reviewed and approved the Request, noting
that, although her approval was necessary to terminate Rodriguez, her signature was not required on the termination
document.
19
had been terminated from the OAG, she was not immediately able to find a comparable position,

and she was instead forced to apply for unemployment benefits.

In October of 2011, Rodriguez applied for a state job at the Texas Tech Clinic, but was

told that she did not have the proper experience for that position. She then began volunteering at

the clinic in order to get the necessary experience, and shortly thereafter was hired by the clinic in

November of 2011 when a position came open; however, the job entailed a significant reduction

in salary from her position as office manager. However, she believed it was necessary to take the

position, so that she could begin accruing her state benefits again. Rodriguez admittedly

discontinued looking for other comparable work after she took that position. Rodriguez, who was

50 years old at the time of trial, further testified that she intended to continue working for the State

for several more years in order to increase the amount of her State annuity, and to pay off the

various debts her family incurred when she was unemployed.

Rodriguez’s Whistleblower Lawsuit

On May 5, 2010, Rodriguez filed her lawsuit against the OAG under the Texas

Whistleblower Act, contending that she was wrongfully demoted from the RA position in

September of 2009 and later wrongfully terminated from the Office Manager position in April of

2010, as the result of her report of Galindo’s misconduct. However, the trial court dismissed the

claim regarding her demotion, as the lawsuit had been filed outside the limitations period for that

claim, and we upheld that dismissal in our 2012 opinion. See Office of Attorney Gen. of Tex. v.

Rodriguez, 420 S.W.3d 99, 101 (Tex.App.--El Paso 2012, no pet.).

Following an eight-day trial on her remaining claim of wrongful termination, the jury found

in response to two separate questions that there was a preponderance of evidence to support a

20
conclusion that Rodriguez’s whistleblower claim was made in good faith and was the cause of her

termination.15 The jury awarded Rodriguez “back pay” in the amount of $260,000, compensatory

damages, including emotional pain and suffering, and other non-economic losses, in the amount

of $100,000, and “front pay” in the amount of $275,000. The trial court entered judgment against

the OAG in accordance with the jury’s verdict, and after the OAG’s motions for judgment

notwithstanding the verdict and for new trial were denied, this appeal followed.

DISCUSSION

The OAG raises two issues on appeal. First, the OAG contends that the evidence

presented at trial was legally and factually insufficient to prove the causation element of

Rodriguez’s wrongful termination lawsuit, claiming that the report was not a “but for” cause of

her termination. Second, the OAG argues that the evidence did not support the jury’s award of

“front pay” damages to Rodriguez, as Rodriguez admittedly stopped looking for comparable work

after accepting the Texas Tech position, and therefore did not mitigate her damages. We disagree

with both arguments.

Standard of Review

In conducting a legal sufficiency or “no evidence” review, we consider all of the evidence

presented at trial in the light most favorable to the jury’s findings and indulge every reasonable

inference that would support them. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005).

Our ultimate objective in conducting this review is to determine “whether the evidence at trial

would enable reasonable and fair-minded jurors to reach the verdict.” Kia Motors Corp. v. Ruiz,

432 S.W.3d 865, 875 (Tex. 2014) (quoting Whirlpool Corp. v. Camacho, 298 S.W.3d 631, 638

As explained below, the OAG appears to concede that Rodriguez’s report falls within the purview of the
15

Whistleblower Act, and its only issue on appeal is that the report was not a “but for” cause of her termination.
21
(Tex. 2009)). In reviewing the record, we “credit favorable evidence if reasonable jurors could,

and disregard contrary evidence unless reasonable jurors could not.” Kia Motors Corp., 432

S.W.3d at 875 (quoting City of Keller, 168 S.W.3d at 827). We will sustain a legal sufficiency

challenge or no evidence point of error when: “(1) the record discloses a complete absence of

evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight

to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is

no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of the vital

fact.” Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998); see also City

of Keller, 168 S.W.3d at 810.

When reviewing the factual sufficiency of the evidence, we consider and weigh all of the

evidence and will “set aside the verdict only if it is so contrary to the overwhelming weight of the

evidence as to be clearly wrong and unjust.” Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986);

Bus. Staffing, Inc. v. Jackson Hot Oil Serv., 401 S.W.3d 224, 235 (Tex.App.--El Paso 2012, pet.

denied). In conducting our review under both the legal and factual sufficiency standards, we are

mindful that the trier of fact is the sole judge of the credibility of the witnesses and the weight to

give their testimony, and recognizing that it is within the trier of fact’s exclusive province to

resolve any conflicts in the evidence. City of Keller, 168 S.W.3d at 819.

CAUSATION UNDER THE WHISTLEBLOWER ACT

The Whistleblower Act prohibits the suspension or termination of “a public employee who

in good faith reports a violation of law by the employing governmental entity or another public

employee to an appropriate law enforcement authority.” TEX. GOV’T CODE ANN. § 554.002.

The Act is intended to “enhance openness in government and compel the State’s compliance with

22
law by protecting those who inform authorities of wrongdoing.” See Bates v. Pecos County, ___

S.W.3d ___, 2017 WL 1164597, at *2–3 (Tex.App.--El Paso Mar. 29, 2017, no pet.) (citing Tex.

Dep’t of Assistive & Rehabilitative Servs. v. Howard, 182 S.W.3d 393, 399 (Tex.App.--Austin

2005, pet. denied)). Governmental immunity is expressly waived under the Act, and therefore, a

governmental entity is liable for damages if the plaintiff establishes a violation of the Act. See

TEX. GOV’T CODE ANN. § 554.0035 (West 2012); City of Fort Worth v. Zimlich, 29 S.W.3d 62, 67

(Tex. 2000); County of El Paso v. Latimer, 431 S.W.3d 844, 848 (Tex.App.--El Paso 2014, no

pet.).

The elements of a whistleblower claim are “(1) that the plaintiff was a public employee,

(2) that the defendant was a state agency or local government, (3) that the plaintiff reported in good

faith a violation of law (4) to an appropriate law enforcement agency, and (5) that the plaintiff's

report was the but-for cause of the defendant’s suspending, firing, or otherwise discriminating

against the plaintiff at the time the defendant took that action.” Moore v. City of Wylie, 319

S.W.3d 778, 783–84 (Tex.App.--El Paso 2010, no pet.) (citing Guillaume v. City of Greenville,

247 S.W.3d 457, 461 (Tex.App.--Dallas 2008, no pet.)); see also Texas Department of Human

Services v. Hinds, 904 S.W.2d 629, 636 (Tex. 1995). A public employee who sues under the

Whistleblower Act has the burden of proof to demonstrate the existence of all elements of the

action, including causation, by a preponderance of the evidence.16 Zimlich, 29 S.W.3d at 67; TEX.

GOV’T CODE ANN. § 554.004(a). The OAG challenges only the causation element of Rodriguez’s

16
While the statute does not explicitly require an employee to prove a causal link between the report and the
subsequent discrimination, the Supreme Court imposed this requirement in Hinds when it held that an employee must
demonstrate all elements of the action, including causation, by a preponderance of the evidence. Hinds, 904 S.W 2d
at 633; see also Zimlich, 29 S.W.3d at 67 (to show causation, a public employee must demonstrate that after he or she
reported a violation of the law in good faith to an appropriate law enforcement authority, the employee suffered
discriminatory conduct by his or her employer that would not have occurred when it did if the employee had not
reported the illegal conduct).
23
case, claiming that Rodriguez did not present sufficient evidence to support the jury’s verdict on

that element.

In order to prove causation under the Whistleblower Act, the plaintiff does not need to

prove that her report of illegal conduct was the sole reason for the employer’s adverse personnel

action against her. See Hinds, 904 S.W.2d at 634; see also Rogers v. City of Fort Worth, 89

S.W.3d 265, 280 (Tex.App.--Fort Worth 2002, no pet.). Instead, the Texas Supreme Court has

announced that the standard of causation in whistleblower and similar cases is that the employer’s

prohibited conduct would not have occurred when it did if the employer had not engaged in the

protected conduct under consideration. Hinds, 904 S.W.2d at 636 (concluding that this standard

“best protects employees from unlawful retaliation without punishing employers for legitimately

sanctioning misconduct or harboring bad motives never acted upon”); see also Nairn v. Killeen

Indep. Sch. Dist., 366 S.W.3d 229, 246 (Tex.App.--El Paso 2012, no pet.) (recognizing that in a

whistleblower case, the plaintiff must establish that “absent the protected activity, the adverse

employment action would not have occurred when it did”); Azar Nut Co. v. Caille, 720 S.W.2d

685, 687–88 (Tex.App.--El Paso 1986), aff’d, 734 S.W.2d 667 (Tex. 1987) (recognizing that a

plaintiff in a wrongful termination lawsuit need not establish that her workers’ compensation claim

was the sole cause of her termination, and instead need only demonstrate that there was a “causal

connection” between her discharge and the claim). We have described this causation standard as

being a “but for” causal nexus requirement. Univ. of Texas at El Paso v. Esparza, 510 S.W.3d

147, 158–59 (Tex.App.--El Paso 2016, no pet.) (apply “but for” standard to plaintiff’s claim under

the Texas Commission on Human Rights Act). Under this standard, the plaintiff need not

establish that the report was a substantial or principal reason for the adverse employment action,

24
and has instead, stated that the Whistleblower Act does not permit a report “to play any role,

however small,” in deciding whether to take adverse action against the employee. Hinds, 904

S.W.2d at 635; see also City of El Paso v. Parsons, 353 S.W.3d 215, 225 (Tex.App.--El Paso 2011,

no pet.). When the record contains some evidence to support a finding that an adverse

employment decision would not have been taken if the employee did not report the violation, a

jury may infer causation. Parsons, 353 S.W.3d at 225-26 (citing Zimlich, 29 S.W.3d at 68; Hinds,

904 S.W.2d at 633). However, a jury cannot infer causation without some evidence to support

the finding. Id. at 226 (citing Zimlich, 29 S.W.3d at 68).

A plaintiff may establish a causal link between the adverse employment action and the

plaintiff’s report of the illegal conduct by circumstantial evidence, which includes evidence of the

following five factors: (1) knowledge of the report of illegal conduct; (2) expression of a negative

attitude toward the employee’s report of the conduct; (3) failure to adhere to established policies

regarding employment decisions; (4) discriminatory treatment in comparison to similarly-situated

employees; and (5) evidence that the stated reason for the adverse employment action was false.

Parsons, 353 S.W.3d at 226 (citing Zimlich, 29 S.W.3d at 69). Although the plaintiff need not

present evidence of all five factors, evidence that an adverse employment action was preceded by

a superior’s negative attitude toward an employee’s report of illegal conduct is not enough,

standing alone, to show a causal connection between the two events. Zimlich, 29 S.W.3d at 69;

see also Parsons, 353 S.W.3d at 226 (recognizing that if one or more factors exists, the court may

affirm the jury’s finding of causation).

We examine each factor separately to determine if Rodriguez presented sufficient evidence

to sustain the jury’s finding of causation.

25
 1. Knowledge of the Whistleblower Report

For a plaintiff to show causation in a suit alleging wrongful termination under the

Whistleblower Act, the plaintiff must show that the person who took the adverse employment

action, i.e., the final decision-maker in the agency, knew of the employee’s report of illegal

conduct. See Zimlich, 29 S.W.3d at 70 (citing Cont'l Coffee Products Co. v. Cazarez, 937 S.W.2d

444, 451–52 (Tex. 1996)); see also Beattie v. Madison County Sch. Dist., 254 F.3d 595, 603–04

(5th Cir. 2001) (because the school board was the final decision-maker in the plaintiff’s

termination, the plaintiff was required to demonstrate that the board knew of the plaintiff’s

protected activity in order to establish causation). This is because it would be illogical to conclude

that an employee was fired because of a report if the final decision-maker did not know the

employee made such the report. Harris County v. Vernagallo, 181 S.W.3d 17, 25 (Tex.App.--

Houston [14th Dist.] 2005, pet. denied) (citing Zimlich, 29 S.W.3d at 70).

Initially, the OAG spends much time arguing that Duberney did not know of Rodriguez’s

whistleblower report when she made her initial request to terminate Rodriguez on March 12, 2010,

and that her initial request could not have been not inspired by any retaliatory motives. 17

Rodriguez correctly argues, however, that the OAG’s focus on Duberney is misplaced, as both

parties agree that Duberney had no authority to make the decision to terminate Rodriguez on her

own, and she was therefore not a final decision-maker.

17
The OAG, however, acknowledges that Duberney appears to have learned of the report before she made her final
Request for Termination. The OAG points out, however, that because Duberney initially requested Rodriguez’s
termination at a time when she had no knowledge of the report, thereby establishing that she had no “retaliatory
motive” for requesting the termination. As explained above, however, Duberney was not a final decision-maker and
therefore her motives are irrelevant.
26
 As discussed in more detail below, Rodriguez contends that both Smith and Key were final

decision-makers, who made the ultimate decision to terminate Rodriguez, while the OAG contends

that only Key can be considered as such. While that issue becomes important in determining

whether we can consider Smith’s negative attitude in our analysis, it is unimportant for determining

who had knowledge of the whistleblower report, as the evidence clearly demonstrates—and the

OAG appears to concede—that both Smith and Key had knowledge of the report prior to

Rodriguez’s termination. As explained above, Rodriguez reported her suspicions about Galindo

to Smith in December of 2008, and he was aware of the report she made shortly thereafter to the

Ethics Advisor. In addition, Key testified that although she was aware of the Galindo

investigation as early as January of 2009, she learned that Rodriguez had been responsible for

making the report sometime in the summer of 2009, well before Duberney made the request to

terminate Rodriguez. Therefore, we conclude that this factor weighs in Rodriguez’s favor.

2. The Expression of a Negative Attitude

Similarly, in determining whether an agency expressed a negative attitude toward a

whistleblower report, we must again focus only on the words and conduct of the final decision-

makers who ultimately approved Rodriguez’s termination.18 See, e.g., Vernagallo, 181 S.W.3d

at 28; see also Johnson v. Louisiana, 369 F.3d 826, 831 (5th Cir. 2004) (“only final decision-

makers may be held liable for First Amendment retaliation employment discrimination” under the

Civil Rights Act). As explained above, the OAG argues that we should consider Key to be the

one and only final decision-maker, and that we should therefore only consider whether she

18
As such, we once again find it unnecessary to discuss the OAG’s argument that Duberney did not express a negative
attitude toward the whistleblower report, as she was not a final decision-maker, and therefore, her attitude is not
relevant to our analysis. Vernagallo, 181 S.W.3d at 28 (negative statement made by plaintiff’s immediate supervisor
was irrelevant to the causation analysis where supervisor was not the final decision-maker in plaintiff’s termination).
27
exhibited a negative attitude toward Rodriguez’s report. The OAG contends that there is no

evidence that Key exhibited a negative attitude toward Rodriguez, and that our inquiry should stop

there, as we should not consider Smith’s negative attitude in our analysis. Rodriguez, on the other

hand, argues that we should consider the attitudes of both Smith and Key in our analysis, as they

can both be considered final “decision-makers” who approved her termination. We agree with

Rodriguez on this point.

Although there does not appear to be any bright-line definition for the term “final decision-

maker,” courts have typically identified final decision-makers as those individuals who are

responsible for making the ultimate decision to terminate an employee, in contrast to a lower-level

supervisor who merely had the power to recommend the termination, or who was not otherwise

involved in the actual decision-making process. See, e.g., Howell v. Town of Ball, 827 F.3d 515,

526 (5th Cir. 2016) (holding that an employee who merely made the recommendation to the town’s

board of aldermen to terminate the plaintiff, which in turn was required to vote on the termination,

could not be considered the final decision-maker); see generally City of Fort Worth v. Johnson,

105 S.W.3d 154, 167 (Tex.App.--Waco 2003, no pet.) (recognizing that the proper focus of inquiry

is on the employee who had the “final say” in the plaintiff’s termination decision); see also Wal-

Mart Stores, Inc. v. Bertrand, 37 S.W.3d 1, 10 (Tex.App.--Tyler 2000, pet. denied) (comments

made by others may provide some evidence of discriminatory intent if they are, among other

things, made by individuals with authority over the employment decision); Costello v. Bank of

Am., N.A., No. 14-06-00195-CV, 2007 WL 4303499, at *4 (Tex.App.--Houston [14th Dist.] Dec.

11, 2007, no pet.) (mem. op.) (the fact that an employee who was not involved in the employment

28
decision expressed negative feelings is not evidence that the decision had a discriminatory

motivation).

Further, the Texas Supreme Court has indicated that there may be more than one final

decision-maker who bore responsibility for making an adverse employment action. See generally

Zimlich, 29 S.W.3d at 70 (finding that there was no evidence in the record that the “decision-maker

or decision-makers” knew about an employee’s whistleblower report prior to the adverse

employment decision); Cazarez, 937 S.W.2d at 451 (circumstantial evidence was sufficient to

establish a causal link between plaintiff’s termination and filing a workers’ compensation claim,

where the evidence demonstrated knowledge of the compensation claim by “those making the

decision on termination”); see also Alief Indep. Sch. Dist. v. Perry, 440 S.W.3d 228, 241

(Tex.App.--Houston [14th Dist.] 2013, pet. denied) (where supervisor met with the two employees

who had recommended the plaintiff’s termination, and the three of them came to a joint decision

to terminate, the jury was entitled to infer that they were all final decision-makers for purposes of

terminating the plaintiff).

As explained above, the evidence at trial established that Smith was not the person who

merely recommended or requested Rodriguez’s termination, and that it was instead Duberney who

made the recommendation; moreover, the evidence established that Smith and Key were both

required to, and did give, approval to the request before it could be finalized. In particular, Smith

testified that, as the division chief, he was responsible for providing the “final review and

signature” on all requests for termination that are submitted within his division, and that his

signature was necessary on the paperwork to terminate an employee within his division, and that

he was therefore required to give approval to Rodriguez’s termination before it could be finalized.

29
In addition, Smith expressly testified at trial that he and Key at the time were the “ones who make

the final determination of whether or not a termination occurs.” In fact, even the OAG appears

to concede that the termination could only take place with the approval of both Smith and Key.

As such, we conclude that both Smith and Key may be considered final decision-makers, and that

we may therefore consider Smith’s attitude toward Rodriguez’s whistleblower report in our

analysis.

Smith’s Attitude Toward the Report

The OAG argues that even if we were to consider Smith’s attitude toward Rodriguez’s

report in our analysis, we should conclude that Smith did not express a negative attitude toward

the report. The OAG argues that, to the contrary, Smith “did nothing but support and encourage

Rodriguez to make the report about Galindo,” telling her to contact the OAG Ethics Advisor,

personally passing information along to the investigators in June of 2009 when the Galindo

investigation appeared to have stalled, and personally administering discipline to Galindo based

on Rodriguez’s report.

We note, however, that while conflicting evidence may have been presented, the evidence

supported a reasonable inference that Smith did in fact express a negative attitude toward the

report. First, Smith himself testified that when Rodriguez initially approached him about the

possibility that Galindo’s email constituted insurance fraud, he initially criticized her for reading

Galindo’s emails; he thereafter admittedly asked Rodriguez not to make a report, and asked her to

instead contact Galindo to seek “clarification” of what had occurred, despite the fact that this was

in clear violation of OAG policy.

30
 In addition, as explained above, Smith thereafter admittedly questioned Rodriguez about

why she did not want to confront Galindo about her illegal conduct, testifying that he found this

“odd,” despite the fact that OAG policy expressly provides that the reporting employee should not

confront the suspected individual. Similarly, Smith also questioned Rodriguez about why she

wanted to report the illegal conduct anonymously, despite the fact that OAG policy expressly

provides for the protection of an employee’s confidentiality in making reports. Further, although

the FWAPP policy manual requires a division chief to promptly report the matter to the agency’s

Ethics Advisor, Smith admittedly did not report the matter, and instead, relied on Rodriguez to do

so.

In addition, after the Galindo investigation was complete, Smith appears to have again

encouraged Rodriguez to violate OAG policy, when he asked her to administer discipline to

Galindo. And curiously—even though OAG policy clearly states that a person who reports

potential fraud should not be privy to the investigative results of the report—both Smith and Key

found it “odd” and/or “strange” that Rodriguez did not want to administer the discipline, and Smith

even included this negative expression in his initial September 2009 request to terminate

Rodriguez from her RA position. Moreover, Smith himself testified that he had doubts about the

credibility of her whistleblower report, and even mentioned that he had doubts about the report in

his final evaluation of her, despite the fact that the CID investigation had resulted in a finding that

Galindo had lied in her email, as Rodriguez had suspected.

The OAG argues that Smith’s statements and conduct—even if negative in nature—fall

“far short” of the attitude expressed by other supervisors in cases in which a “retaliatory motive

was found,” citing several cases in which he believes supervisors made much worse comments,

31
and openly expressed their dissatisfaction with an employee’s whistleblower report. See, e.g.,

Zimlich, 29 S.W.3d at 69 (supervisor advised plaintiff was “lucky to have a job at all after the

[whistleblowing] incident”); Tex. Dep’t of Criminal Justice v. McElyea, 239 S.W.3d 842, 856

(Tex.App.--Austin 2007, pet. denied) (supervisor became “very angry” and “red in the face” after

learning of the plaintiff’s whistleblower report, telling another employee that something needed to

be done about the plaintiff, and that the plaintiff needed to “keep his nose out of things not his

business”). We note, however, that most employers would not be so careless as to make such

overtly negative statements after learning of a whistleblower report, nor do not believe that such

obviously egregious statements are required to support a finding of retaliation.

In fact, other courts have held that much more subtle statements and conduct, such as

discouraging a plaintiff from making a report, can be sufficient to support a finding that the

employer expressed a negative attitude toward the report. See Hunt v. Van Der Horst Corp., 711

S.W.2d 77, 80 (Tex.App.--Dallas 1986, no writ) (finding that supervisor’s negative statement to

the effect that worker’s compensation reports cost the company money could support a finding of

a negative attitude toward the filing of worker’s compensation claims); see also Louis v. Mobil

Chemical Co., 254 S.W.3d 602, 609 (Tex.App.--Beaumont 2008, pet. denied) (recognizing that

discouraging an employee from making a worker’s compensation claim can be a factor in

determining whether the employee had a valid retaliation claim); Luna v. Daniel Intern. Corp.,

683 S.W.2d 800, 803 (Tex.App.--Corpus Christi 1984, no writ) (where supervisor expressed

reluctance to fill out “paperwork” regarding plaintiff’s work-related injury and indicated he did

not want company to know about it, the evidence was sufficient to raise a fact issue as to the causal

32
connection between the plaintiff’s discharge and his possible claim for worker’s compensation

benefits).

In the present case, as set forth above, there was evidence from which the jury could have

inferred that Smith had a negative attitude toward the report based on his initial efforts to

discourage Rodriguez from filing her whistleblower report, his view that Rodriguez was acting in

an “odd” or “strange” manner when she insisted that the agency follow its own procedures in

handling the report, and his overt statements questioning her credibility in making the report. As

such, we conclude that this factor weighs in Rodriguez’s favor 19

3. The Failure to Adhere to Established Policies Regarding Employment Decisions

Rodriguez next describes at least three examples of why she believes the OAG did not

follow its own policies in making its employment decisions in her case. First, Rodriguez

complains that Key testified that she admittedly did not review Rodriguez’s past evaluations or

consider her past positive performance in determining whether to demote her from the RA position,

despite her testimony that such information could have been a factor in her decision. Second,

Rodriguez points out that in his request to demote her from the RA position, Smith complained

about management issues that went back at least three years, despite Smith’s own testimony that

the agency did not typically discipline employees for events occurring outside the current

evaluation period. And third, Rodriguez points out Smith mentioned the anonymous complaints

19
In light of our conclusion that Smith was a final decision-maker, and that we can consider his negative attitude in
our analysis, we need not consider the parties’ argument regarding whether Smith’s retaliatory motives could be
imputed to Key under a “conduit” or “cat’s paw” theory of liability, in which the retaliatory motives of a supervisor
recommending termination can be imputed to an innocent supervisor who does not conduct an independent
investigation. See, e.g., Long v. Eastfield College, 88 F.3d 300, 307 (5th Cir. 1996) (concluding that if an innocent
final decision-maker did not conduct his own independent investigation prior to approving the plaintiff’s termination,
and instead merely “rubber stamped” the recommendation of a supervisor with discriminatory motives, those motives
could be imputed to the decision-maker).
33
he had received about Rodriguez’s management style in his request for her demotion, despite

Key’s testimony that the OAG does not typically discipline its employees for anonymous

complaints.

There are at least two problems with Rodriguez’s reliance on these issues. First, all of the

issues pertain to her claim that she was wrongfully demoted from the RA position—a claim that

is no longer before us. Second, Rodriguez has not pointed to any actual policies that the OAG

violated when they demoted her and/or when they terminated her; the testimony that she points to,

at most, establishes that the OAG had a preference for doing things a certain way, but does nothing

to establish an actual policy deviation. See generally Arismendiz v. Univ. of Texas at El Paso,

536 F.Supp. 2d 710, 719 (W.D. Tex. 2008) (plaintiff’s contention that university failed to follow

its policies in disciplining her failed where she presented no evidence of any such policy that was

applicable to her case that the university failed to follow). As such, we find that this factor weighs

in favor of the OAG.

4. Discriminatory Treatment in Comparison to Similarly-Situated Employees

As set forth above, in determining whether an agency engaged in retaliatory conduct, the

plaintiff may present evidence that the agency treated a similarly-situated employee differently

than it did the plaintiff. Ysleta Indep. Sch. Dist. v. Monarrez, 177 S.W.3d 915, 917 (Tex. 2005).

In a variety of contexts, Texas courts have held that, “[e]mployees are similarly situated if their

circumstances are comparable in all material respects, including similar standards, supervisors,

and conduct.” Id. (employment discrimination case); see also Parker v. Valerus Compression

Services, LP, 365 S.W.3d 61, 69 (Tex.App.--Houston [1st Dist.] 2011, pet. denied) (retaliatory

34
discharge for filing worker’s compensation claim); Willis v. Nucor Corp., 282 S.W.3d 536, 553-

54 (Tex.App.--Waco 2008, no pet.) (retaliatory discharge for filing worker’s compensation claim).

Rodriguez contends that Jeff Brewer, who replaced her in October of 2010, as the 807

Office Manager, was a similarly-situated employee who received more favorable treatment than

she did. In particular, Rodriguez contends that under Brewer’s leadership, Office 807 suffered

from similar backlogs and similar failures to meet its targeted deadlines, as the office did under

her leadership, yet the OAG admittedly gave Brewer a grace period in order to address the backlogs

and placed on a corrective action plan—an accommodation not afforded to her—even though he

failed to improve, the OAG did not terminate him as it did her, and instead demoted him to another

position in the agency.

The OAG argues, however, that Brewer cannot be considered a similarly-situated

employee for at least three reasons. First, the OAG contends that despite holding the same job title

that Rodriguez did, Brewer had duties assigned to him that were different from those assigned to

Rodriguez. In particular, the OAG points to Duberney’s testimony that after Rodriguez was

terminated, Office 807 was tasked with the additional responsibility of handling “interstate” cases,

a responsibility which the OAG claims Rodriguez did not have. We note, however, that the

evidence was conflicting on that point, as at least one Office 807 employee, Blanca Madrid,

testified that Office 807 had “started the process” of handling interstate cases prior to the time

Brewer became the office manager, and that the office was already receiving “interstate” cases

while Rodriguez was still the office manager.

Moreover, it is unclear from Duberney’s testimony whether or how Brewer’s duties or

responsibilities changed when the office was given this additional task. In fact, Duberney herself

35
testified that Office 807 was assigned a managing attorney to assist the office with interstate issues

during Brewer’s tenure as office manager, thereby giving the office more manpower than

Rodriguez had during her tenure. More importantly, aside from this one alleged responsibility

that was added to the office, the OAG presented no evidence to suggest that the fundamental

functions and responsibilities of Office 807 changed in any significant way after Rodriguez was

terminated, or that Brewer’s responsibilities as office manager differed in any significant way from

the responsibilities that Rodriguez had.

Second, the OAG points out that Rodriguez and Brewer had different immediate

supervisors when they were disciplined, pointing out that Duberney left the RA position, and was

replaced by another RA who “reviewed Brewer’s conduct,” and made the recommendation to

demote him rather than to terminate him when he failed to meet his targeted goals.

We note, however, that while Brewer may have had a different immediate supervisor, the

record is clear that the same final decision-makers, i.e., Smith, and Key, who made the decision to

approve Rodriguez’s termination, also made the decision to approve Brewer’s demotion.20 We

note that several of our sister courts have followed the standard set forth by the Fifth Circuit, stating

that a plaintiff may establish that another employee is a similarly-situated employee by

demonstrating either that the two employees “shared the same supervisor or had their employment

status determined by the same person[.]” See, e.g., Mitchell v. Texas Dep’t of Criminal Justice,

No. 02-16-00100-CV, 2017 WL 632906, at *3 (Tex.App.--Fort Worth Feb. 16, 2017, no pet.)

(mem. op.) (citing Lee v. Kan. City S. Ry. Co., 574 F.3d 253, 260 (5th Cir. 2009)); see also Texas

20
The record indicates that Smith was the division chief until the week before Rodriguez’s trial in October of 2013,
when Key retired from her position as Director of Child Support, and Smith assumed that position. Although the
record does not clearly indicate when Brewer was demoted, it appears clear that it happened before that transition
took place.
36
State Office of Admin. Hearings v. Birch, No. 04-12-00681-CV, 2013 WL 3874473, at *15

(Tex.App.--San Antonio July 24, 2013, pet. denied) (mem. op.); McKenna v. Baylor Coll. of Med.,

No. 01-15-00090-CV, 2016 WL 1714870, at *6 (Tex.App.--Houston [1st Dist.] Apr. 28, 2016, no

pet.) (mem. op.); Dallas Indep. Sch. Dist. v. Allen, No. 05-16-00537-CV, 2016 WL 7405781, at

*10 (Tex.App.--Dallas Dec. 22, 2016, pet. denied) (mem. op.) (citing Turner v. Kan. City S. Ry.

Co., 675 F.3d 887, 893 (5th Cir. 2012)). In light of the clear importance of the final decision-

maker’s role in determining whether a plaintiff has a valid retaliation case, we believe it is also

appropriate to consider whether the same final decision-makers were involved in disciplining both

the plaintiff and the comparative employee in determining whether the latter can be considered a

similarly-situated employee. Accordingly, since it appears that both Brewer and Rodriguez had

their ultimate fate decided by the same final decision-makers, we conclude that this aspect of the

test is satisfied.

And third, and finally, the OAG argues that Brewer’s misconduct was different than

Rodriguez’s, and that Rodriguez and Brewer had “different faults” that led to different disciplinary

decisions in their cases. We note, however, that the reasons that Rodriguez and Brewer were

disciplined were much more alike than they were different.

As explained above, in her Request for Termination, Duberney focused on the fact that

Rodriguez had a backlog in the office that she was unable to satisfactorily reduce and that the

office was not meeting all of its targeted goals during the seven months that Rodriguez served as

manager. And the OAG admits in its brief that this was the primary reason that Rodriguez was

terminated. Similarly, in an evaluation that Brewer received in June of 2011 for the period

beginning in October of 2010, Brewer was criticized for also failing to satisfactorily reduce the

37
office’s backlog and for failing to meet targeted goals during his first seven months as manager.21

However, as set forth above, rather than terminate Brewer for those deficiencies, as the OAG did

in Rodriguez’s situation, the OAG first granted Brewer a “grace” period in which to address those

deficiencies, and later demoted him to another position in the agency when he failed to meet the

office’s goals. Moreover, although the OAG contends that there was evidence presented at trial

that Brewer was making inroads in tackling the backlog, thereby presumably entitling him to more

favorable treatment than Rodriguez, we note that Rodriguez also presented evidence from an

Office 807 employee, Blanca Madrid, who testified that Rodriguez had also been making strides

in tackling the backlog as well during her short tenure as the office manager. In addition, in at

least one email dated February 1, 2010, sent by Brewer, who at the time was assisting Rodriguez

with responding to requests from Duberney for statistical information pertaining to the backlog,

Brewer indicated that the office was doing a “great job” in reducing certain backlogs. As well,

Duberney herself sent an email to Rodriguez and other office managers on March 24, 2010 (twelve

days after she drafted her initial request to terminate Rodriguez congratulating the managers for

working together in “clearing the order entry backlog” in the office.

While the OAG may be able to point to differences in what occurred under the leadership

of these two employees, this does not dissuade us from finding that their conduct was similar

enough to allow them to be considered similarly-situated employees. As our sister court noted in

Willis, in order to prove discrimination based on disparate discipline, the disciplined and

21
Rodriguez contends that all of her past evaluations were more positive than Brewer’s, including her past evaluations
from her RA position. As the OAG points out, however, her evaluations from her RA position are not relevant to
determining whether the stated reasons for her termination from the Office Manager position were false and/or
pretextual. See generally Herbert v. City of Forest Hill, 189 S.W.3d 369, 376 (Tex.App.--Fort Worth 2006, no pet.)
(finding that evaluations given seven months prior to adverse employment action, stating that plaintiff had adequately
performed his job were not sufficient to establish that the stated reasons for the action were false).
38
undisciplined employees' misconduct must be of “comparable seriousness,” yet the conduct need

not be precisely equivalent. Willis, 282 S.W.3d at 554 (citing McDonald v. Santa Fe Trail Transp.

Co., 427 U.S. 273, 283 n.11, 96 S.Ct. 2574, 49 L.Ed.2d 493 (1976)). We conclude that the

misconduct for which Brewer and Rodriguez were disciplined—failing to clear the offices’

backlog and failing to meet targeted goals—were of comparable seriousness and similar enough

in nature to meet this standard. As the two employees received quite dissimilar treatment for this

same misconduct, we conclude that this factor weighs in Rodriguez’s favor.

5. Evidence that the Stated Reasons for the Adverse Employment Action Were

False

Although Rodriguez concedes that she was terminated primarily due to her allegedly poor

job performance, including the backlogs in the office, she points out that Duberney included

several other reasons in the Request, which she believes were false, or at the least misleading,

painting her as an uncooperative and insubordinate employee. First, Rodriguez points out that

Duberney accused Rodriguez of missing two meetings, including the “regional meeting” on

January 5, 2010 and the Region 8 Managers Meeting on March 10, 2010.22 Rodriguez, however,

points out that she had well-documented medical excuses for missing both of those meetings,

including a doctor’s note that excused her from work from January 4, 2010 to January 7, 2010,

and FMLA leave forms for Rodriguez to be out of the office from March 10 to March 11, 2010 to

assist her elderly mother with a hospital procedure that required an overnight stay. The record

reflects that Duberney, as well as Smith, were both aware of Rodriguez’s first excused absence

before they signed the final Request for Rodriguez’s termination. In fact, in her first draft of her

22
In addition, after she missed the March 10 meeting, Rodriguez sent Duberney a request for a copy of the minutes
so she could review them.
39
request for termination, Duberney referred to the doctor’s note, and intimated that Rodriguez may

have forged the note, despite the fact that she did not question Rodriguez about the validity of the

note at any time prior to her termination. Interestingly, Durberney included no reference to the

doctor’s note in her final Request for Termination when criticizing Rodriguez for missing the

January meeting. In addition, at trial Rodriguez also testified that she told Smith that she was sick

and would be missing the January meeting, and that Smith agreed to pass the information along to

Duberney.

We also note that the record reflects that Duberney was aware of the FMLA leave form,

which excused her from the March meeting, since Duberney personally approved the leave form.

Yet nowhere in her final request for termination does Duberney mention the FMLA leave form

when she criticized Rodriguez for missing that meeting.

Although the OAG does not dispute that Rodriguez had valid, medically excused and

protected reasons for missing the two meetings, the OAG contends that missing the two meetings

was not the primary reason for her termination, and therefore should not be considered in our

analysis. We question, however, why the OAG found it necessary to include those reasons in its

Request if it did not find them to be significant, and if it were not attempting to paint Rodriguez

as an insubordinate employee.

This issue dovetails into the statements made in the Request for Termination indicating

that Rodriguez was being terminated because she had failed to follow her “RA’s directives,” and

because she failed to “adhere to agency policy and procedures,” again painting her as an

uncooperative and defiant employee. We note, however, that the Request did not identify any

directives, policies or procedures that Rodriguez failed to follow. Instead, the Request described

40
numerous occasions on which Duberney asked Rodriguez for information pertaining to the

backlog and her failure to meet targeted goals. With one exception in which Rodriguez briefly

delayed in responding to an email from Duberney, the record indicates that Rodriguez responded

in a timely manner to each and every request made by Duberney, and that she worked diligently

to respond to Duberney’s request for information in a timely manner, beginning in January of 2010

up until she was terminated in April of 2010. While Duberney may not have been satisfied with

the information she received, there was no evidence to indicate that Rodriguez intentionally failed

to follow any directives that Duberney gave her. In fact, in at least two emails, dated February

17, 2010, and March 24, 2010, Duberney thanked Rodriguez for her efforts in responding to her

requests for information, and for working with the other managers in the region to help clear a

portion of the office’s backlog. Moreover, we find it significant that Rodriguez testified that

Duberney never approached her with any concerns that she had regarding whether she was acting

in an insubordinate manner, and never expressed any dissatisfaction with her responses prior to

her termination. As such, the jury could have concluded that the OAG’s statements to the effect

that Duberney had violated Duberney’s “directives” and/or that she failed to follow Agency

policies and procedures were false and misleading.

And finally, we note that the Request for Termination described Rodriguez as having been

the “interim Office Manager” of Office 807 from February through September of 2009, while also

acting as the RA for the Region. This, however, was disputed at trial. While Rodriguez

admittedly did make attempts to assist that office after Alba retired, she testified that she was not

in fact the interim office manager, and there is nothing in the record that indicates otherwise. To

the contrary, Blanca Madrid, who worked in Office 807 at the time, testified that there was no

41
office manager after Alba retired until Rodriguez stepped in as Alba’s formal replacement, and

that managers from other offices were assisting in running the office at various times. We note

that the question of whether Rodriguez served as the “interim office manager” was not

insignificant; if Rodriguez had in fact served as the “interim office manager” for almost seven

months before she formally assumed the position in September, this would have supported a

conclusion that Rodriguez was directly responsible for creating the backlogs in the office that she

claims she inherited that September from Alba. As such, the jury could have concluded that this

statement was false as well.

The OAG would have us overlook all of the above-described statements, and instead

simply focus on the fact that Rodriguez was terminated primarily due to her allegedly poor

performance, i.e., her failure to tackle the office’s backlog and her failure to meet targeted goals.

Further, the OAG claims that Rodriguez has not made any attempt to rebut the claim that she was

performing poorly, and therefore did nothing to establish that the OAG’s reasons were false or

pretextual. We note, however, that Rodriguez did present evidence to rebut the allegation that

she was performing poorly as the office manager; as set forth above, she presented evidence that

the office was making inroads on the backlog under her leadership, despite evidence that both

Smith and Duberney had made changes in the office that she believed had negative impacts on the

office’s performance, and despite the fact that her own performance was hindered by the requests

for information made by Duberney. In addition, Smith himself testified that in March of 2010,

shortly before Rodriguez was terminated, the office was meeting three out of four of its targeted

performance measures. While the question of whether Rodriguez was performing satisfactorily

as the office manager was certainly subject to dispute, the fact remains that the OAG relied on

42
other information in its Request for Termination that was in fact false; as such, we conclude that

this factor weighs in Rodriguez’s favor and supports an inference that the OAG’s primary reason

for terminating her, i.e., her allegedly poor performance, was pretextual in nature.

As we have found the existence of four out of five factors in the test for causation, we

conclude that there was more than a scintilla of evidence to support the jury’s finding that

Rodriguez would not have been terminated when she was, but for her whistleblower report;

therefore, because the jury’s finding is not so contrary to the overwhelming weight of the evidence

as to be clearly wrong and unjust, the evidence is both legally and factually sufficient to support a

finding of causation. See generally Parsons, 353 S.W.3d at 226–27 (citing Zimlich, 29 S.W.3d

at 67; Hinds, 904 S.W.2d at 633). Issue One is overruled.

THE AWARD OF FRONT-PAY DAMAGES

At trial, the jury awarded damages to Rodriguez for both “back pay” and “front pay.” The

OAG has no quarrel with the back-pay award, but challenges the front-pay award, claiming that

Rodriguez failed to mitigate her damages when she took a “relatively low-paying job” in

November of 2011, and admittedly ceased her efforts to look for a job with comparable pay to her

former position as the 807 office manager.23 The OAG contends that this Rodriguez should not

be entitled to any front-pay damages in the absence of evidence that she made an effort to find

comparable work after that time.

The Definition of Front-Pay Damages

23
The OAG points out that the jury’s award of $275,000 in front-pay damages appears to have been based on the
difference in the salary Rodriguez received at her Texas Tech job in comparison to her salary as Office Manager until
the time of her projected reasonable retirement. The OAG does not appear to dispute the jury’s mathematical
calculations in coming up with that figure, nor does the OAG dispute Rodriguez’s decision to not retire. Instead, the
OAG’s sole argument is that she was not entitled to any award of front-pay damages due to her alleged failure to
mitigate her damages by continuing her job search.
43
 As a preliminary matter, we note that a wrongfully discharged employee may be entitled

to both back-pay and front-pay damages. “Back pay” is defined as those lost wages and benefits

that accrue from the date of a wrongful termination through trial. See Dell, Inc. v. Wise, 424

S.W.3d 100, 114 (Tex.App.--Eastland 2013, no pet.) (citing United Servs. Auto. Ass’n. v. Brite,

215 S.W.3d 400, 401 (Tex. 2007); Stanley Stores, Inc. v. Chavana, 909 S.W.2d 554, 563

(Tex.App.--Corpus Christi 1995, writ denied)). Front pay is defined as lost compensation from

trial forward until a reasonable retirement age. See, e.g., Dell, Inc., 424 S.W.3d at 114 (citing

Hansard v. Pepsi–Cola Metro. Bottling Co., 865 F.2d 1461, 1469 (5th Cir. 1989)); see also Tex.

Com’n on Human Rights v. Morrison, 346 S.W.3d 838, 851 (Tex.App.--Austin 2011), rev’d on

other grounds, 381 S.W.3d 533 (Tex. 2012) (front pay is an equitable remedy intended to

compensate a plaintiff for future lost wages and benefits); see generally Pollard v. E.I. du Pont de

Nemours & Co., 532 U.S. 843, 846, 850, 121 S.Ct. 1946, 1948, 1950, 150 L.Ed.2d 62 (2001)

(explaining that front pay is awarded in wrongful termination lawsuits where reinstatement is not

an option to compensate for future lost wages as a means of making plaintiff whole in such cases).

Due to the somewhat speculative nature of front-pay damages, courts have held that a plaintiff is

not required to prove the exact amount of future lost wages, but only facts from which the jury can

determine the proper amount. See Goodman v. Page, 984 S.W.2d 299, 305 (Tex.App.--Fort Worth

1998, pet. denied) (citing McIver v. Gloria, 140 Tex. 566, 169 S.W.2d 710, 712–13 (1943)). In

addition, the trier of fact is afforded wide latitude in determining front-pay issues. Dell, Inc., 424

S.W.3d at 114 (citing Sellers v. Delgado Coll., 781 F.2d 503, 505 (5th Cir. 1986)).

In the present case, the jury was properly instructed that back pay includes the amount of

wages and employment benefits that Rodriguez would have earned in the past had she not been

44
subjected to her employer’s unlawful conduct, less any wages, unemployment compensation

benefits that she received in the interim. The jury was also properly instructed that “front pay” is

the amount of wages and employment benefits that Rodriguez “would have earned in the future if

she had not been terminated on April 8, 2010 less any wages and employment benefits she could

reasonably earn through reasonable effort.”24 The OAG does not challenge the jury instruction,

but contends that there was no evidence to support the conclusion that she used reasonable efforts

to seek comparable work after she took the position at Texas Tech, or in other words, she failed to

mitigate her damages after taking that position.

The Plaintiff’s Duty to Mitigate Damages

The general rule as to mitigation of damages in breach of employment suits is that the

discharged employee must use reasonable diligence to mitigate damages by seeking other

employment. Gulf Consol. Intern., Inc. v. Murphy, 658 S.W.2d 565, 566 (Tex. 1983); see also

Am. W. Airlines, Inc. v. Tope, 935 S.W.2d 908, 915 (Tex.App.--El Paso 1996, writ dism’d as moot)

(a wrongfully discharged employee has a duty to mitigate damages by making a good faith effort

to obtain and retain employment). This obligation includes looking for employment that is

substantially equivalent to the job from which the plaintiff was discharged. Hertz Equip. Rental

Corp. v. Barousse, 365 S.W.3d 46, 58–59 (Tex.App.--Houston [1st Dist.] 2011, pet. denied) (citing

Alamo Cmty. Coll. Dist. v. Miller, 274 S.W.3d 779, 791 (Tex.App.--San Antonio 2008, no pet.).

In a wrongful discharge case, mitigation is a defensive issue upon which the defendant

bears the burden of proof at trial. Tope, 935 S.W.2d at 915; see also Murphy, 658 S.W.2d at 566;

Miller, 274 S.W.3d at 788 (citing Hygeia Dairy Co. v. Gonzalez, 994 S.W.2d 220, 224 (Tex.App.

24
The OAG did not object to this instruction, nor does it contend on appeal that it was given in error.
45
--San Antonio 1999, no pet.)). Therefore, as the proponent of the failure-to-mitigate defense, the

defendant bears the burden of proving that the plaintiff’s efforts to obtain comparable employment

were wanting. See Hertz Equip. Rental Corp., 365 S.W.3d at 59 (citing Tope, 935 S.W.2d at 915).

Once the plaintiff presents evidence that he used reasonable efforts to obtain employment, the

defendant must present evidence that substantially similar positions were available for which the

plaintiff was qualified, but failed to apply. See Barousse, 365 S.W.3d at 59; see also Smith v. AS

Am., Inc., 227 F.Supp.3d 1039, 1042-45 (W.D. Mo. 2016) (once a plaintiff has presented evidence

that they engaged in reasonable diligence in his job search, the burden shifts to the defendant to

show the availability of comparable positions for which the plaintiff was eligible but did not

apply); see also Ballard v. El Dorado Tire Co., 512 F.2d 901, 905-906 (5th Cir. 1975) (recognizing

the “universal rule” that a defendant in a wrongful termination lawsuit has the burden of proving

that similar employment opportunities were available to the plaintiff for which he failed to apply).

However, if the defendant establishes that the plaintiff did not make reasonable efforts to obtain

work, the employer does not also have to establish the availability of substantially equivalent

employment. See, e.g., Quint v. A.E. Staley Mfg. Co., 172 F.3d 1, 15–16 (1st Cir. 1999) (other

courts addressing the issue have uniformly relieved the defendant-employer of the burden to prove

the availability of substantially equivalent jobs in the relevant geographic area once it has been

shown that the former employee made no effort to secure suitable employment) (internal citations

omitted)); see also Sellers v. Delgado College, 902 F.2d 1189, 1193 (5th Cir. 1990) (once the

“employer proves that an employee has not made reasonable efforts to obtain work, the employer

does not also have to establish the availability of substantially equivalent employment”).

46
 Mitigation of damages is ordinarily a question of fact for the jury to decide. Tope, 935

S.W.2d at 915 (generally, the reasonableness of plaintiff's actions and efforts to mitigate, are fact

questions properly left to the jury); see also Azar Nut Co. v. Caille, 720 S.W.2d 685, 687–88

(Tex.App.--El Paso 1986), aff’d, 734 S.W.2d 667 (Tex. 1987) (it was up to the jury to decide

whether the plaintiff acted reasonably in refusing a job offer from the defendant’s affiliate

company after her termination). When a jury awards damages in a wrongful discharge case, the

defendant has the “difficult task” of demonstrating that it established as a matter of law that the

plaintiff failed to mitigate his damages, or that the jury’s findings on this issue were so against the

great weight and preponderance of the evidence as to be manifestly unjust. Tope, 935 S.W.2d at

915 (citing Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989)).

The OAG did not Meet its Burden of Establishing a Failure to Mitigate

In the present case, the OAG concedes that Rodriguez exercised reasonable diligence in

seeking comparable employment prior to taking her lower-paying job at Texas Tech, but finds it

significant that Rodriguez admittedly stopped searching for comparable employment after she took

that position. The OAG argues that Rodriguez’s decision to take that position and to thereafter

cease looking for work absolved them of the duty to present evidence that comparable positions

were available for which Rodriguez was qualified but failed to apply after that time.

In support of its argument, the OAG relies first on West v. Nabors Drilling USA, Inc., 330

F.3d 379, 393 (5th Cir. 2003). In West, the plaintiff, who had been a supervisor at a drilling

company did not formally apply for any comparable positions after his termination, but did call

his former employer on several occasions in an attempt to be rehired by the company. Id. at 393-

94. The court held that the jury could have reasonably found from this evidence that the plaintiff

47
mitigated his damages by seeking to be rehired. Id. at 394. However, the court found it

significant that the plaintiff thereafter took a much lower-paying non-supervisory job driving a

truck at an hourly wage, and made no effort to seek comparable work after that time. Id. The

court therefore concluded that he had not mitigated his damages after that time, and was therefore

not entitled to receive any back-pay damages after the date on which he took the lower paying job,

noting that a plaintiff may not “simply abandon his job search and continue to recover back pay.”

Id. at 393 (citing Hansard v. Pepsi-Cola Metropolitan Bottling Co., 865 F.2d 1461,1468 (5th Cir.

1989)).

Although the Court in West appears to have absolved the defendant of the need to present

evidence that there were comparable jobs available for which the plaintiff did not apply once he

ceased his job search, other courts addressing the issue have concluded that when a plaintiff

initially engages in a lengthy and diligent search for comparable employment, but later takes a

lower-paying job after the search becomes futile, the defendant must still present evidence that the

plaintiff could have, but did not, apply for comparable jobs within her geographic region. Thus,

in a similar situation, our sister court considered a similar situation in which a plaintiff took a lower

paying job after his termination, and concluded that this was sufficient to demonstrate that the

plaintiff satisfactorily mitigated his damages, where the defendant presented no evidence that there

were other positions available in the job market with higher pay after he accepted that position, for

which the plaintiff was qualified and could have applied. See Barousse 365 S.W.3d at 59. Other

courts addressing the issue have arrived at similar conclusions. See, e.g., Smith, 227 F.Supp.3d

at 1041-45 (plaintiff was entitled to damages award where he applied for hundreds of comparable

jobs over a two-year period of time, but eventually stopped searching and eventually obtained a

48
lower-paying job, where defendant presented no evidence to show the availability of comparable

positions for which the plaintiff was eligible but did not apply); see also Denesha v. Farmers Ins.

Exch., 161 F.3d 491, 502 (8th Cir. 1998) (trial court properly limited award of front-pay damages

to plaintiff); Sellers v. Delgado College, 902 F.2d 1189, 1194-95 (5th Cir. 1990) (trial court

properly denied front-pay damages to plaintiff where she failed to actively seek comparable

employment following her termination, and later resigned from a lower paying but permanent

position).

We also note that several courts have held that where a plaintiff has engaged in a diligent,

but unsuccessful, job search for a reasonable period of time, a plaintiff may be relieved of the duty

to continue looking for a comparable job and may instead accept steady employment, albeit at a

lower-paying job, where the evidence indicates that it would be futile for the plaintiff to continue

the job search. See, e.g., Brady v. Thurston Motor Lines, Inc., 753 F.2d 1269, 1275 (4th Cir.

1985) (holding that plaintiff was entitled to discontinue his job search, where he had engaged in a

year-long job search following his termination, which proved futile, and thereafter accepted a

lower-paying steady job with regular wages); see also Conn v. Am. Nat'l Red Cross, 149 F.Supp.3d

136, 153–54 (D.D.C. 2016) (denying motion for summary judgment in a wrongful termination

case, where a genuine dispute of fact existed as to whether plaintiff was entitled to abandon her

eight-month job search proved futile).

In the present case, the only evidence presented on the issue of damages came from

Rodriguez’s testimony that she engaged in an 18-month long search for a comparable job that

proved to be futile, after which she took the lower-paying job at Texas Tech, in order to get back

on track with her State pension and to begin paying back the debts she and her family had accrued

49
during the time she was unemployed. If the OAG had wished to prove that Rodriguez was not

acting in good faith in taking this position, or that it would not have been futile for her to continue

her job search, the OAG could have presented evidence that there were in fact comparable jobs

available to Rodriguez for which she failed to apply during the relevant time period. However,

the OAG presented no evidence of the availability of positions either before or after she took the

Texas Tech position, and we therefore conclude that the OAG failed to meet its burden of

establishing that Rodriguez did not mitigate her damages. Issue Two is overruled.

CONCLUSION

We affirm the trial court’s judgment in its entirety.

YVONNE T. RODRIGUEZ, Justice
October 16, 2017

Before Rodriguez, J., Hughes, J., and Larsen, J. (Senior Judge)
Hughes, J., not participating
Larsen, J. (Senior Judge), sitting by assignment

50