In the decision of Apache Corp. v. Davis, 573 S.W.3d 475 (Tex.App. Hou. 2019), the court of appeals affirmed a jury verdict in favor of Cathryn Davis, a former paralegal at Apache Corporation. The jury found she had complained about gender discrimination and then suffered reprisal because of that opposition. The jury awarded her $150,000 in past compensatory damages. I previously wrote about that decision here. Apache appealed that decision. At first, the Texas Supreme Court denied the company’s petition for review. The company then filed a request for rehearing. In March, the Texas Supreme Court granted the petition for rehearing, a very rare event.
Now, Justice Hecht has written an opinion which overrules the court of appeals decision and takes away the jury verdict. In the case of Apache Corp. v. Davis, No. 19-0410 (Tex. 2021), the justice found that there was insufficient evidence to support the jury decision. The court establishes that the standard of proof for a retaliation case is the but-for standard. The court noted that Davis was fired 8 weeks after her lengthy email complaining about discrimination. But, said the court, that does not mean she was not fired for some other reason. Side note: yes, but a jury believed otherwise.
The court points to instances of insubordination by Ms. Davis. Yet, the court of appeals looked at the same evidence. It found that one supervisor viewed her suggested work schedule as insubordination. But, otherwise, said the court of appeals, her tardies were comparable to mis-conduct by other co-workers.
But, Justice Hecht saw the evidence differently. He said Ms. Davis was guilty of numerous acts of insubordination, because she “repeatedly” refused to submit a work schedule in line with Apache policies. Here, the judge is talking about Ms. Davis’ request to continue what she had been doing for months, arriving after 9:00 a.m. She wanted to continue taking her daughter to school before work. She would then stay late to make up the time. Justice Hecht describes her repeated insubordination as “undisputed.” Yet, obviously, the court of appeals and the jury did indeed dispute whether Dacvis’ desired work schedule amounted to insubordination. Just because one supervisor says it is insubordination does not make it so, especially after she has complained about discrimination. Too, nothing in the Supreme Court decision or the court of appeals decision indicates Ms. Davis refused to submit a schedule showing an earlier start time more than once. It is not clear how Justice Hecht arrived at “repeated” instances of refusing to submit a work schedule.
The judge also reaches the remarkable conclusion, that two paralegals who falsified time cards but were not fired, were not comparable employees. Davis had argued that the paralegals had committed a much more serious offense, falsifying time cards and had not been fired. The judge said this was not comparable conduct. The jury could not look at that and conclude Davis was fired for something less serious. The two paralegals had arrived late several times, but changed their time cards to show they had arrived on time. Yet, they were not fired. The court of appeals also had considered that issue and found that a jury could indeed conclude that falsifying time records was less serious than not turning in a schedule with an earlier start time.
At this point, the opinion becomes rather nonsensical. Most decisions finding that employee discipline is not comparable do so because the employees work for different supervisors or in different departments. Even if we accept the theory that some company-wide discipline is not comparable, the thinking is that supervisors are accused of discrimination. So, if the supervisor in question applies different discipline for white or brown employees, then that would be relevant. If they are different supervisors in different departments, that thinking goes, then different discipline is not relevant.
But, here, Justice Hecht is saying something very few courts have ever said before, that to be comparable, the different employees must be accused of the same offense. Usually courts focus on offenses which are of comparable seriousness for offenses which are similar, not the same. See, e.g., Graham v Long Island RR, 230 F.3d 34, 40 (2d Cir. 2000); McDonnell Douglas Corp. v. Green, 411 U.S. 792, at 804, 93 S.Ct. 1817 (1973) (“Especially relevant” to a showing of pretext “would be evidence that white employees involved in acts against petitioner of comparable seriousness . . . were nevertheless retained or rehired”).
It is very rare for different employees to be accused of the exact same offense. Discrimination cases are never that neat and tidy. But, more importantly, requiring that the different employees be accused of the very same transgression begs the question. The question is does the supervisor apply different discipline based on impermissible factors? That is a classic fact question suited to a jury. A judge applies the law, not social standards. Justice Hecht has exceeded his mandate as a judge. A jury should determine what discipline is relevant.
It appears Judge Hecht is weighing the evidence to arrive at a particular result. See the decision here. It does not help with the optics that the largest non-Republican party contributor to Justice Hecht’s campaign in 2020 was the Vinson & Elkins PAC. Vinson & Elkins represents Apache Corporation in this lawsuit. See Justice Hecht campaign contributions here.