Texas Commission on Human Rights Act

Clients and potential clients often ask me at some point what is the value of his/her case? What little they know of its value is colored by the ubiquitous Personal Injury lawyer ads. Or, sometimes, their knowledge is influenced by what some brother-in-law knows, or thinks he knows. So, some clients, a small percentage, expect wealth and riches.

Employment cases are not car wreck cases. The employment discrimination statutes provide for specific types of damages. Title VII and the Texas law equivalent, Texas Commission on Human Rights Act, provide for lost pay and benefits, compensatory damages, punitive damages and costs of prosecuting the lawsuit which includes attorney’s fees. There is nothing more. There is not, for example, such a thing as an award for the value of the home you lost or the divorce the job loss caused. Those sorts of losses do help show emotional suffering. But, no, there will be no dollar for dollar award regarding a lost home. I wish there were. The judge cannot award anything not allowed by statute.

Lost pay and benefits include more than may meet the eye. It includes lost pay of course. It includes all lost benefits. So, save that COBRA letter that records the dollar amount paid by the employer for your medical insurance. You need a record of what the employer paid for your insurance, not for what you paid.

Lost benefits include retirement benefits. Terminations involve different calculations than failure to promote. Lost promotions or raises can affect how much a 401K would grow. Some workers can “guesstimate” how much their retirement would have grown if they had received a particular step increase. If the client cannot make an estimate, then an economist may be necessary.

Lost bonuses count. Of course, the employer will claim bonuses are never guaranteed. They may even point to policies which provide bonuses are never certain and depend on financial success each fiscal year. But, if the actual practice suggests that bonuses are likely and that failure to pay a bonus may have been motivated by discriminatory animus, then there will be a fact issue regarding bonuses. If there is a factual issue, then the issue should be be decided by a judge or jury.

Arriving at an amount for compensatory damages is complicated. Compensatory damages describes damages intended to compensate a person for emotional suffering. There is no simple way to measure emotional suffering. The actual amount to be awarded is up to a jury. Most juries do not award anything for emotional suffering.

Punitive damages are even more rare than emotional suffering type damages.

Of course, all these amounts are subject to caps. Title VII and the the TCHR Act are capped at various levels based on number of employees. The highest cap is $300,000. So, even the largest employer in the country will never see a larger award than $300,000 in compensatory damages.

Once in a blue moon, we might see a jury award a million dollars for compensatory damages. But, that amount will be reduced by a judge to the appropriate cap level.

But, no matter how small, surely it is better that an errant employer pay something for violating the law and causing so much harm.

A frequent issue in discrimination cases concerns when does the time for filing a complaint start? The answer can be complicated when a teacher, for example, is notified her contract will not be renewed the next school year. Do her six months to file start when she is told she will not be re-hired, or does it start at the end of the school year, when the decision takes effect? In Reyes v. San Felipe Del Rio Consolidated ISD, No. 14-17-00488, 2018 WL 1176487 (Tex.App. San Antonio 3/7/2018), the Court said the time to file started when the school district board told the teacher it had accepted the Superintendent’s proposal to terminate her employment.

Situations involving public school teachers are particularly confusing, because they are entitled to a hearing before the school board. Before a teacher’s termination becomes final, she can ask for a hearing before the school board. Ms. Reyes had such a hearing. She lost, as do most teachers. She was the told by letter dated Jan. 18, 2012 that her employment would be terminated. According to the letter, her employment was terminated effective Jan. 11, 2012. She then filed her charge of discrimination on May 23, 2012. She later filed suit. The district filed a plea to the jurisdiction, which is comparable to a motion to dismiss. It is based on the pleadings. The district argued that she had missed her deadline to file her charge. The district argued that her deadline started not in January, 2012, but in August, 2011 whene was first told the board had accepted the Superintendent’s recommendation that she be terminated.

The court looked at the Texas Education Code which explains the appeal process for public school teachers. The court found that under the Texas Commission on Human Rights Act, Tex. Lab.C. Sec. 21.202, the key event occurred when a decision was made, not when that decision took effect. The focus of the statute, said the court, is on the unlawful decision. So, her six months started in August, 2011, not in January, 2012. And, the court affirmed the dismissal of her case. See the decision here.

Ouch. The plaintiff made a rational decision to look to the result of her hearing before the school board. And, she lost because she relied on the wrong event. She might have the possibility of filing in federal court. But, because she filed her charge some ten months after August, 2011, that possibility would also would be problematic.

There are some theories of law that some courts and most defense lawyers rely on to undermine otherwise good discrimination cases. One of those theories is the “stray remarks” doctrine. In general, the stray remarks doctrine holds that some remarks by management are so remote from the adverse personnel action that they are not relevant. Such remarks are said to be “stray.” I find some of these cases to be result oriented. They are produced by judges who seem to be looking for ways to dismiss a discrimination case. After all, if a remark is truly “stray,” does not that pertain more to the weight of the evidence than to its admissibility? If Jim Bob made a racial remark 20 years ago, does not that still have some relevance, however small?

The decision in Goudeau v. National Oilwell Varco, LP, No. 14-20241 (5th Cir. 7/16/2015) helps clear up some of the confusion regarding the stray remarks doctrine. As recently as 2000, the Fifth Circuit warned that the stray remarks doctrine must be viewed “cautiously.” Russell v. McKinney Hospital Venture, 235 F.3d 219, 229 (5th Cir. 2000). In 2012, the Fifth Circuit acknowledged that the circuit’s application of the doctrine has been “somewhat messy.” Reed v. Neopost USA, Inc., 701 F.3d 434, 441, n.5 (5th Cir. 2012). Goudeau attempts to clear up some of that mess. It finds that there are two different situations in which the doctrine would apply. First, the doctrine would apply to a case in which the plaintiff alleges pure direct evidence and in which the McDonnell-Douglas burden shifting paradigm does not apply. In such situations, said the Goudeau court, the stray remarks doctrine would apply. The remark must connect closely to the termination itself in time and to the person who effected the termination.

Second, the doctrine would also apply to cases in which the evidence is circumstantial. Most discrimination cases are based on circumstantial evidence, noted the court. In this second situation, the courts will look at alleged remarks under a “more flexible” standard. To be relevant as part of a circumstantial evidence case, the comments must show: 1) discriminatory animus, 2) on the part of the person that is either primarily responsible for the challenged employment action or by a person with influence or leverage over the relevant decision maker. Goodeau, p. 7 (slip opinion). So, as in this case, the supervisor made comments about the “old farts” working there and asked about the age of two older employees. The supervisor later fired two of the three “old farts.” These comments, said the panel, serve as part of circumstantial evidence case. Such remarks are relevant at the prima facie stage. These remarks along with the doubts about the written warnings serve as evidence of pretext. The higher court reversed the district court’s summary judgment regarding the claim of age based discrimination.

Too, one has to wonder how a district court could grant summary judgment when there are comments like “old farts” made by supervisory officials.

In the legal business, lawsuits are governed by deadlines referred to as “statutes of limitation.”  A lawsuit must be filed within the applicable statute of limitation.  A suit based on personal injury must be filed within two years of the act complained of.  If the last day of the two year period falls on a weekend or a holiday, then the statute of limitations period is extended until the next business day.  A lawsuit based on the state statute which prohibits discrimination must be filed within two years.  This statute is known as the Texas Commission on Human Rights Act.

A suit based on defamation, libel or slander must be filed within one year of the act complained about.  A suit based on breach of an oral contract must be filed within two years of the alleged breach.  Suit on a written contract must be filed within four years of the alleged breach.

Of course, there are many exceptions to these statutes of limitation.  If you have questions, you should speak with a qualified lawyer.

In many ways, the deck is stacked against the discrimination victims. Most folks who believe they have been subjected to discrimination put off seeing a lawyer. Many, a great many folks go directly to the EEOC, trusting in the federal government. The EEOC means well, but it is over-worked and under-staffed. Many EEOC workers are simply poorly trained. Consider the case that occurs every so often: the plaintiff files a charge with the EEOC. The EEOC will occasionally take a very long time with a case. If the EEOC allows a case to sit at the EEOC for over two years, the case will go beyond the statute of limitations. That is, the case will go beyond the time limit in which to file a state lawsuit of discrimination.

If that case concerns disability discrimination, the plaintiff is in serious trouble. The U.S. Supreme Court has held that the state agencies cannot be sued under Title VII or under the Americans with Disabilities Act. The statute of limitation to file under the state version of the ADA is two years. The deadline to file suit under the Texas Commission on Human Rights Act is two years. So, if the EEOC issues a right-to-sue letter after the two years has already passed, the plaintiff in effect cannot sue for disability discrimination.

If the plaintiff attempts to file suit, the employer will file a motion to dismiss. The judge will grant the motion to dismiss saying the plaintiff should have contacted a lawyer. But, wait. Many folks believe that seeing a lawyer should be a last resort. . . .  Oh well.

So, yes, in many ways, the deck is stacked against the average employee who has suffered discrimination.

Lawsuits are tricky. They must be filed within a certain deadline, known as "statutes of limitation."  If a person misses the statute of limitation without a very, very good reason, that person cannot file the lawsuit. Statutes of limitations are very important. A suit based on personal injury must be filed within two years of the act complained of. If a person is in a car wreck, that person must file a lawsuit within two years of the car wreck. 

If the last day of the two year period falls on a weekend or a holiday, then the statute of limitations period is extended until the next business day. A lawsuit based on the state statute which prohibits discrimination must be filed within two years. This statute is known as the Texas Commission on Human Rights Act. 

A suit based on defamation, libel or slander must be filed within one year of the act complained about. A suit based on breach of an oral contract must be filed within two years of the alleged breach. Suit on a written contract must be filed within four years of the alleged breach. 

Of course, there are many exceptions to these statutes of limitation. If you have questions, you should speak with a qualified lawyer. 

Last August, Gov. Rick Perry vetoed a statute that would have amended the state version of Title VII the way Congress amended Title VII to allow women to sue for discrimination in their pay. See my posts here. The state version of Title VII is known as the Texas Commission on Human Rights Act.  This is the state statute that prohibits discrimination based on gender. 

There is no good reason not to amend the TCHRA as Title VII was amended. Since its inception, the TCHRA has always tracked the wording of Title VII. State case law has long been based on federal case law regarding Title VII. We learned later that Gov. Perry was influenced by lobbyists when he vetoed the proposed statute.  

Now, the San Antonio Express News has referred to a lawsuit where such an amendment would have made a difference.  In a lawsuit by a professor against Prairie View A&M, the plaintiff sued on the basis of discrimination in her pay. She claimed she was paid less than male co-workers performing the same work. Her lawsuit, however, was based on the TCHRA. The Texas Supreme Court ruled against the professor. The decision by the Texas Supreme Court specifically said the court cannot legislate changes in the TCHRA.  If the state legislature wanted to amend the TCHRA, it should do so via the legislative branch, not the judicial branch. See San Antonio Express News report

Yes, indeed.  That is what the backers of the bill said when Gov. Perry vetoed their bill with no warning. 

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. 

Nancy Norman has filed suit against her former employer, Ebbay Halliday Realtors, Inc., in Dallas district court for discrimination based on her disability. She filed suit under the Texas Commission on Human Rights Act., the Texas equivalent of Title VII of the Civil Rights Act.  See Texas Lawyer report.  Ms. Norman was fired after ten years of employment and 37 days after disclosing her diagnosis, inverse psoriasis, a skin disorder.  Ms. Norman’s doctor told her to wear shorts to work and change once she arrived at work.  Her disorder involves a painful red rash made worse by friction and perspiration.  Her doctor warned her against overheating. The employee told her office administrator about the diagnosis and what the doctor prescribed.

She arrived to work wearing shorts. The office manager, Don Davis immediately told her she cannot wear shorts to work. During the following week, Mr. Davis allegedly exhibited hostility toward Ms. Norman. He then issued her a disciplinary write-up for dressing improperly for work and general incompetence. When Ms. Norman tried again to explain to him her need to wear shorts to work, he cut her off and said he did not care about her medical issues.  Ms. Norman says she had received letters of commendation in the past. 

Ms. Norman then failed to attend a shower for a co-worker during lunch.  Mr. Davis complained about that omission and sent her home.  He called her at home later that day and fired her. 

It sounds like a good case for the employee. The employer will surely defend on the basis that Ms. Norman was not a productive employee and had other issues. But, if Ms. Norman truly has a write-up for dressing improperly at work after she had been diagnosed, the employer’s actions will appear retaliatory.  Mr. Davis will undoubtedly deny his statements. But, the verifiable evidence will be strong enough that many jury members may accept the plaintiff’s version of events. This is a case which the employer should settle. 

And, requiring attendance at a function during non-working hours?  A possible violation of the Fair Labor Standards Act?  The employer has some problems in this lawsuit. 

Sigh, our Texas Supreme Court is at it again.  In a recent decision, the Court conflated personal injury claims with sexual harassment and other froms of discrimination.  See Waffle House, Inc. v. Williams.  The Court found that claims based on assault and negligent supervision are preempted by the Texas Commission on Human Rights Act.  The TCHRA is the state version of Title VII of the Civil Rights Act of 1964.  The TCHRA prohibits discrimination based on sex, race, national origin and other classifications.  The Court found that the TCHRA provided the exclusive remedy for all conduct related to discrimination.  Formerly, tort claims or personal injury claims would be in addition to, not in lieu of discrimination claims.  

As the dissent points out, this means that if Joe repeatedly slams Mary up against the wall at work, then Mary can sue Joe for assault and battery.  But, if Joe also gropes Mary while repeatedly slamming her against the wall, then Mary can only sue for discrimination.  One major difference is that the TCHRA is limited to $300,000 in emotional damages and punitive damages. But, a claim based on assault and battery would have limited or no dollar limit.  See dissent.  

The $300,000 cap suffices for many claims.  The $300,000 cap applies to the largest employers.  It includes punitive damages and compensatory damages.  Compensatory damages are intended to compensate a victim for emotional suffering.  But, the cap is not enough for some claims.  For example, would $300,000 be enough in a discrimination case also involving rape? Money never truly compensates for the worst abuses.  But, $300,000 would not be enough damages for some cases.  In the case of Jones v. KBR, the victim was raped repeatedly and then confined in Iraq by her employer.  Would $300,000 be enough for the Jones case?

Or, if the employer has less than 100 employees, the punitive damages and compensatory damages would be capped at $50,000.  Would $50,000 suffice for the worst claims involving rape or assault?

The ruling suggests judicial activism.  The issue was not even addressed by the parties.  The Supreme Court refers to a tangential reference by the employer before the lower court.  But, the issue was not presented before the Supreme Court itself.  

The TCHRA is supposed to track the federal equivalent, Title VII, but this ruling directly contradicts Title VII precedent. 

And, ultimately, in this case, the jury had awarded $3.46 million in punitive damages.  The trial court then converted that award into an award of $425,000 for past compensatory damages and $425,000 in punitive damages, due the cap for personal injury claims.  The Texas Supreme Court once against trumps a jury decision.