In 2012, a Bexar County jury awarded a former SAWS employee $1.6 million in damages in a retaliation lawsuit. Debra Nicholas had opposed possible discrimination by her employer, San Antonio Water System in 2006. Her job was eliminated in 2009. SAWS claimed her job was eliminated as part of a re-organization. But, her job was the only one eliminated. I previously wrote about this jury verdict here. The employer appealed. On appeal, the Fourth Court of Appeals here in San Antonio affirmed the jury verdict. The last large verdict employment case that went to the Fourth Court was overturned entirely. I wrote about that decision also in the same post. But, this time, the appellate court accorded the jury the deference it deserves.
Ms. Nicholas re-applied to SAWS after her position was eliminated. So, she lodged two claims of retaliation, one based on the initial dismissal and one based on her re-application. The jury found in her favor on both claims. SAWS’ principal argument was that three years passed between Ms. Nicholas’ involvement in opposing discrimination and her initial dismissal. SAWS cited numerous cases finding that more than a year between the opposition and the adverse personnel action would not support a presumption of reprisal.
But, as the court noted, those cases involve facts different than this case. In this case, the supervisor, Greg Flores did not have a reasonable opportunity to exact reprisal until two to three years later. The former CEO, David Chardovoyne, testified that some board members did not like Debra Nicholas and might have targeted her, but Greg Flores did not have such an opportunity. And, noted the court, the plaintiff was moved under Greg Flores’ supervision in 2008, at which point she experienced a pattern of harassment form him. She believed Mr. Flores was starting to set her up to fail from the very beginning of her time working for him. At this point, Robert Puente was the CEO. Greg Flores testified that it was Mr. Puente’s decision to terminate Debra Nicholas. The plaintiff was terminated in 2009, just a year after being assigned to work under Greg Flores.
But, noted the court, it may have been the CEO’s decision to terminate the plaintiff. But he did so based on Mr. Flores’ recommendation. And, Ms. Nicholas was the only person to lose her job in the re-organization. Within a few days, the plaintiff sent a letter to SAWS accusing the agency of retaliating against her for her opposition to discrimination in 2006.
After reviewing the testimony from all the major players, the court simply found that there was more than a "scintilla" of evidence to support the jury verdict. The court applied the correct legal standard and viewed the evidence in a light favorable to the verdict, as it should have. The evidence is circumstantial. But, this is a discrimination case. Circumstantial evidence is often the only available evidence in discrimination cases. Yes, Mr. Puente testified he was not influenced by Mr. Flores’ recommendation. But, the jury was entitled to disregard his testimony.
In a lengthy, detailed portion of the decision, the court also affirmed the award of future compensatory pay in the amount of $759,000. The Fourth Court agreed with the lower court that the statutory caps on compensatory damages (i.e., emotional suffering damages) does not apply to future or front pay. This may be the first state decision which reaches that holding under the Texas Commission on Human Rights Act. The court set forth the major decisions on future pay found under Title VII and explained its history.
SAWS will probably appeal to the Texas Supreme Court, which tends to support employers and large corporations. See the report in the Oct. 29, 2013 edition of the San Antonio Express News.
But, on this day, in this state court, the viability of jury trials still lives.