Autozone, Inc. v. Reyes, No. 07-0773 (Tex. Dec. 5, 2008)(per curiam) (age discrimination suit,
judgment for employee reversed, take-nothing judgment rendered)
AUTOZONE, INC. v. SALVADOR REYES; from Cameron County; 13th district (13-03-00338-CV, ___ SW3d
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing
oral argument, the Court reverses the court of appeals' judgment and renders judgment.
Per Curiam Opinion
Autozone Inc. v. Reyes (Tex. 2008)
After he was discharged from his job at AutoZone, Inc., sixty-two-year-old Salvador Reyes sued AutoZone for
age discrimination. AutoZone contended Reyes was discharged because he sexually harassed a female co-
worker. The jury found for Reyes, and the trial court entered judgment on the verdict. The court of appeals
determined that statements made by an AutoZone employee not involved in or connected with Reyes’s
discharge and evidence of discipline meted out to other employees for sexual harassment comprised legally
sufficient evidence to support the finding of age discrimination. ___ S.W.3d ___.
We disagree. We reverse and render.
During the relevant time involved in this case, AutoZone’s employment policy specifically addressed sexual
harassment. It stated, in part, that
AutoZone won’t tolerate sexual harassment or harassment of any nature. Such conduct, or encouraging or
condoning such conduct, may result in immediate termination.
. . . .
Sexual harassment includes unwelcome verbal, nonverbal or physical sexual advances.
. . . .
Any AutoZoner who receives a complaint or becomes aware of a sexual harassment situation should report
the allegation to management immediately.
Irma Knowles, an AutoZone employee, told a co-worker about actions by Reyes that arguably violated
AutoZone’s sexual harassment policy after the co-worker inquired into Reyes’s behavior. Reyes was a parts
service manager in the same AutoZone store where Knowles worked. Knowles’s co-worker reported the
situation to an AutoZone manager. The regional manager initiated an investigation and temporarily
reassigned Reyes from the store where Knowles worked. As part of its investigation, AutoZone assigned a
loss prevention manager, Ken Knecht, to take written statements from Knowles, Reyes, and other involved
employees. According to Knowles’s written statement, Reyes hugged her, tried to kiss her, held her hand, and
asked her for dates on various occasions. She said that when Reyes took those actions she would pull away
from him and call him a “dirty old man.” In her written statement, Knowles also said that Jim Alvarado, another
parts service manager in the store where Knowles worked, leaned against her on numerous occasions, but
she did not state that she pulled away from him or verbally responded to him as she did with Reyes. She
related that she did not report any of the occurrences with Reyes or Alvarado because she was a “single
parent” and was “afraid for my job.” In his written statement, Reyes admitted that he engaged in some of the
alleged behavior and acknowledged that he should not hug, touch, or kiss another employee. Alvarado
denied Knowles’s allegations in his written statement. Knecht forwarded the statements and results of his
investigation to AutoZone management in Memphis, Tennessee. There they were reviewed by employee
relations specialist Melody Jones. Based on the investigation report, Jones recommended that Reyes be
After receiving Jones’s recommendation, the San Antonio regional manager discharged Reyes for violating
AutoZone’s sexual harassment policy. The discharge documents reflected that Reyes was not eligible for
rehire. Alvarado was not discharged. Jones recommended his transfer to a different store be made
permanent so he and Knowles would no longer be working together. Alvarado quit the day after Reyes was
Reyes sued AutoZone for age discrimination. The jury found that Reyes’s age was a motivating factor in
AutoZone’s decision “to discriminate against or discharge” Reyes. AutoZone appealed, arguing among other
matters that the evidence was legally insufficient to support the finding.
The court of appeals affirmed. ___ S.W.3d ___. The court of appeals concluded that the following evidence
was legally sufficient to support the finding of discrimination: (1) statements made to Alvarado by Jesse
Villarreal, manager of the store to which Reyes and Alvarado were assigned after AutoZone initiated its
investigation, to the effect that AutoZone intended to get rid of “the old people,” and (2) evidence that some
younger employees who violated AutoZone’s sexual harassment policy either were not fired or were eligible
for rehire with “provision” or “reservation” notations on their records. Id. at ___.
In this Court, AutoZone continues to challenge, as one of its issues, the legal sufficiency of the evidence to
support the finding that age was a motivating factor in Reyes’s discharge or that he was discriminated against
in any way.
In reviewing for legal sufficiency of the evidence, we consider the evidence in the light most favorable to the
verdict, disregarding all contrary evidence that a reasonable jury could have disbelieved. City of Keller v.
Wilson, 168 S.W.3d 802, 827 (Tex. 2005). Even though the evidence is viewed in the light most favorable to
the verdict, it cannot be considered in isolated bits and pieces divorced from its surroundings; it must be
viewed in its proper context with other evidence. Id.
Under the Texas Commission on Human Rights Act (the Act), an employer may not discriminate against or
discharge an employee based on “race, color, disability, religion, sex, national origin, or age.” Tex. Lab. Code
§ 21.051. By adopting the Act, the Legislature “intended to correlate state law with federal law in employment
discrimination cases.” Ysleta Indep. Sch. Dist. v. Monarrez, 177 S.W.3d 915, 917 (Tex. 2005) (quoting Wal-
Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex. 2003)). Therefore, we look to federal law to
interpret the Act’s provisions. Id.; Wal-Mart, 121 S.W.3d at 739; Quantum Chem. Corp. v. Toennies, 47 S.W.
3d 473, 476 (Tex. 2001); M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 24 (Tex. 2000). To
establish a violation of the Act, a plaintiff must show that he or she was (1) a member of the class protected by
the Act, (2) qualified for his or her employment position, (3) terminated by the employer, and (4) treated less
favorably than similarly situated members of the opposing class. Monarrez, 177 S.W.3d at 917; see Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000). In this case, Reyes bore the burden of proving
that age was a motivating factor in a decision by AutoZone to discriminate against him. Wal-Mart, 121 S.W.3d
at 739; Quantum Chem., 47 S.W.3d at 480.
AutoZone first argues that Villarreal’s comments to Alvarado that Reyes was terminated because AutoZone
was trying to get rid of “the old people” have no evidentiary value. AutoZone urges that the comments were
both stray remarks and made by a person who did not take part in and had no input into the ultimate decision
to discharge Reyes. Reyes, on the other hand, contends that Villarreal’s statements were direct evidence of
AutoZone’s intent to discharge employees based on considerations of age.
We have held that stray remarks are insufficient to establish discrimination and statements made remotely in
time by someone not directly connected with termination decisions do not raise a fact issue about the reason
for termination. See M.D. Anderson, 28 S.W.3d at 25; see also Arismendez v. Nightingale Home Health Care,
Inc., 493 F.3d 602, 607-08 (5th Cir. 2007); Elgaghil v. Tarrant County Junior Coll., 45 S.W.3d 133, 140 (Tex.
App.—Fort Worth 2000, pet. denied). Statements and remarks may serve as evidence of discrimination only if
they are (1) related to the employee’s protected class, (2) close in time to the employment decision, (3) made
by an individual with authority over the employment decision, and (4) related to the employment decision at
issue. Arismendez, 493 F.3d at 608. In determining whether the individual making the remark had authority
over the employment decision, consideration is not limited to statements by the person who officially made the
decision. Id. at 608; Russell v. McKinney Hosp. Venture, 235 F.3d 219, 226-27 (5th Cir. 2000). Discriminatory
animus by a person other than the decision-maker may be imputed to an employer if evidence indicates that
the person in question possessed leverage or exerted influence over the decision-maker. Russell, 235 F.3d
In this case, the evidence showed that Villarreal neither played any part in AutoZone’s investigation or
decision to discharge Reyes, nor did he possess any leverage over or exert any influence over the
investigation or decision. The undisputed evidence is that Rene Munoz, the San Antonio regional manager,
made the decision to terminate Reyes after Jones, an AutoZone employee relations specialist in Tennessee,
recommended the action after she reviewed the written statements taken by Knecht. There is no evidence
that Knecht or any other person involved in the investigation or decision ever took a statement from or spoke
with Villarreal. Further, Villarreal did not work in the store where the sexual harassment allegedly occurred,
and he was not part of the management team that investigated and made the decision to discharge Reyes.
Although Villarreal was a store manager, he had no authority over Reyes until AutoZone transferred Reyes
and Alvarado to his store after the incidents with Knowles had occurred and the investigation was underway.
Villarreal, who no longer worked for AutoZone, testified at trial and denied having any connection with or
knowledge of the investigation or decision to discharge Reyes.
Reyes argues that Villarreal’s statements have evidentiary weight because Villarreal had no personal
discriminatory animus but merely conveyed to Alvarado his knowledge of AutoZone’s reason for terminating
Reyes. But there is no evidence that Villarreal had a basis on which to represent AutoZone’s motive or intent
as to Reyes’s discharge. Regardless of whether Villarreal’s statements were an expression of what he thought
to be AutoZone’s purpose, there was no evidence that Villarreal was involved in, had leverage over, or knew
or was in a position to know whether Reyes’s age was a motivating reason for the discharge. As to Villarreal’s
statements about AutoZone getting rid of “the old people,” Villarreal testified at trial that he intended to
convey only his personal opinion that AutoZone was trying to rid itself of long-time managers who had become
too lax and were not adhering to AutoZone’s policies. Alvarado, who like Villarreal no longer worked for
AutoZone, testified that he understood Villarreal’s statements to refer to the length of time employees had
been with AutoZone, not the employees’ age. When considered in context, as they must be, see City of Keller,
168 S.W.3d at 827, Villarreal’s statements are not evidence that age was a motivating factor in any of
AutoZone’s decisions as to Reyes.
We next address AutoZone’s assertion that Reyes’s ineligibility for rehire was not evidence that it
discriminated against Reyes by treating him less favorably than similarly-situated younger employees. To
prove discrimination based on disparate discipline, “the disciplined and undisciplined employees’ misconduct
must be of ‘comparable seriousness.’” Monarrez, 177 S.W.3d at 917. The situations and conduct of the
employees in question must be “nearly identical.” Id. at 917-18. Employees with different responsibilities,
supervisors, capabilities, work rule violations, or disciplinary records are not considered to be “nearly
identical.” See id. at 917; see also Okoye v. Univ. of Tex. Houston Health Sci. Ctr., 245 F.3d 507, 514-15 (5th
Cir. 2001). The situations and conduct of employees is not nearly identical “when the difference between the
plaintiff’s conduct and that of those alleged to be similarly situated accounts for the difference in treatment
received from the employer.” Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 221 (5th Cir. 2001).
Reyes argues that the record reflects three instances in which AutoZone’s discipline of younger employees
differed from and was less onerous than his. First, Reyes references evidence that Alvarado, Reyes’s
younger co-worker, was only permanently transferred to another store while Reyes was discharged. Alvarado’
s circumstances, however, were not “nearly identical” to Reyes’s. Knowles’s written statement that AutoZone
considered in reaching its decision as to Reyes stated that Reyes held her hands, hugged her, attempted to
kiss her, and asked her for dates. Reyes stated that he sometimes held or grabbed Knowles’s hand, hugged
her, and kissed her; that he knew he should not hug, touch, or kiss another employee; and that although he
believed he did not intentionally harass anyone, he was probably “too friendly, not with some but with all my
fellow employees, male and female.” On the other hand, as to Alvarado, Knowles’s written statement only said
that he occasionally leaned against her, and Alvarado categorically denied the allegation. During the
investigation, the co-worker who reported Reyes’s actions to management and who encouraged Knowles to
report the incidents stated that Knowles informed him that Reyes kissed her but not that Alvarado touched or
leaned against her. Jones, who recommended Reyes’s termination, testified at trial that her recommendation
was based on his written statement admitting to actions that constituted sexual harassment and admitting he
recognized the actions were inappropriate. Jones testified that she did not recommend discharging Alvarado
because in his written investigation statement, he denied committing the alleged actions and there was
nothing to substantiate them. The evidence as to Reyes’s and Alvarado’s circumstances does not rise to the
level that, viewed in the light most favorable to the judgment, a reasonable jury could find the circumstances
were “nearly identical” for the purposes of establishing discrimination based upon disparate discipline.
Next, Reyes argues that AutoZone treated Elroy Harrison, a forty-year-old AutoZone employee, differently
than Reyes although their situations were similar. According to Reyes, AutoZone gave Harrison a warning
after his first reported incident, while Reyes was discharged. However, the evidence showed that Harrison’s
first incident and warning did not involve sexual harassment—it involved a non-sexual negative comment
about a co-worker in front of a customer. Harrison was later discharged for an act of sexual harassment, but
the incident for which he received the warning was not in the same category of conduct for which Reyes was
discharged. See Perez v. Tex. Dep’t of Criminal Justice, Inst. Div., 395 F.3d 206, 213 (5th Cir. 2004) (holding
that in order for circumstances to be nearly identical, the misconduct itself must be nearly identical). Thus,
evidence as to Harrison’s circumstances was not probative of discrimination against Reyes based upon
Finally, Reyes argues that there was evidence younger employees who committed sexual harassment
remained eligible for rehire after termination, while he did not. Under AutoZone’s termination procedures, a
store manager completes a payroll termination report that includes a question as to whether the employee is
eligible for rehire. Three such termination reports indicated that employees younger than Reyes who had
been terminated for sexual harassment remained eligible to be rehired while Reyes did not. Reyes argues
that the reports show a trend of disparate discipline based upon age. We disagree.
Between 1999 and 2001, AutoZone terminated twenty-three employees for sexual harassment; seventeen
were under the age of forty. Evidence that the termination reports of three of the seventeen employees
indicated they were eligible for rehire was not probative evidence that AutoZone treated younger employees
who committed sexual harassment differently than Reyes was treated. First, fourteen of the seventeen were
not eligible for rehire. Second, the reports were not completed by the same official or in the same office as
Reyes’s termination report. Two were completed by store managers in Ohio and one by a store manager in
New Mexico. See Monarrez, 177 S.W.3d at 917 (noting that the circumstances must be “comparable in all
material respects, including similar standards, supervisors, and conduct”). Third, Munoz explained at trial that
the termination reports are prepared for payroll purposes only and are many times completed by managers
who have no knowledge of the reason for termination. As to the three employees Reyes claims were eligible
for rehire, there was no evidence about the position or level of knowledge of the persons who completed the
reports. Finally, AutoZone supervisors testified without contradiction that it is AutoZone’s policy not to rehire
any employee who has been terminated for sexual harassment, and there was no evidence that AutoZone
has ever done so, regardless of whether the termination reports reflected eligibility for rehire. In sum, Reyes
presented no evidence under which a reasonable jury could find that AutoZone treated him less favorably
than any other employee who had violated its sexual harassment policy.
We conclude that the evidence is legally insufficient to support the jury finding that age was a motivating
factor in any action AutoZone took as to Reyes. We sustain AutoZone’s first issue. Sustaining AutoZone’s
issue challenging the legal sufficiency of the evidence requires us to reverse and render judgment for
AutoZone, so we do not address AutoZone’s remaining issues. Without hearing oral argument, we reverse the
court of appeals’ judgment and render judgment that Reyes take nothing. See Tex. R. App. P. 59.1.
OPINION DELIVERED: December 5, 2008
Autozone, Inc. v. Reyes, No. 13-03-00338-CV, ___ SW3d ___, Dec. 29, 2006, pet. granted)
Before Justices Hinojosa, Yañez, and Garza
Memorandum Opinion by Justice Garza
Appellee, Salvador Reyes, sued his former employer, AutoZone, Inc., for age discrimination after his
employment was terminated. Tex. Lab. Code Ann. § 21.051 (Vernon 2006). According to AutoZone, Reyes
was discharged for violating the company's sexual harassment policy. A jury found in favor of Reyes and
awarded him $61,440 in back pay, $211,800 in compensatory damages, and $1,500,000 in exemplary
damages. The trial court found the award of $1,773,240 in damages awarded by the jury exceeded the
statutory limits imposed by law, found that Reyes was not entitled to front pay, and reduced the award to
$300,000 in damages, $39,615 in attorney's fees and costs in the amount of $2,966.76. The judgment of the
trial court is modified to reduce the award of back pay and to delete the award of punitive damages.
Otherwise the judgment is affirmed as modified.
Reyes was employed by AutoZone in January of 1984. Reyes began his employment as a counter person and
worked his way up to parts service manager. In March of 2000, AutoZone employee Irma Knowles filed sexual
harassment complaints against Reyes and another employee, Jim Alvarado. The investigation of both
complaints resulted in the discharge of Reyes and the transfer of Alvarado. Reyes conceded that he would
greet Knowles and other male and female co-workers with a "beso y abrazo" (kiss and hug) as is customary in
South Texas, but denied sexually harassing her. Reyes was 62 years old at the time of the discharge.
I. Legal Sufficiency
In its first issue, AutoZone argues that the evidence is legally insufficient to support the jury's finding that
Reyes' age was a motivating factor in its decision to discharge him. AutoZone maintains that Reyes was
discharged because he admitted to violating the company's sexual harassment policy.
Standard of Review
In conducting a legal sufficiency review, we "view the evidence in the light most favorable to the verdict,
crediting favorable evidence if reasonable jurors could, and disregarding contrary evidence unless
reasonable jurors could not." City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); Ysleta Indep. Sch.
Dist. v. Monarrez, 177 S.W.3d 915, 917 (Tex. 2005); Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739
(Tex. 2003). A no-evidence challenge fails if more than a scintilla of evidence supports the challenged finding.
City of Keller, 168 S.W.3d at 810; Canchola, 121 S.W.3d at 739. More than a scintilla of evidence exists if the
evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.
Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004) (citing Merrell Dow Pharm., Inc. v. Havner, 953
S.W.2d 706, 711 (Tex. 1997)). Evidence that creates a mere surmise or suspicion of the existence of a vital
fact is not legally sufficient. Id. (citing Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)). A no-
evidence point must be sustained only when the record presents one of the following situations: (1) 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. City of
Keller, 168 S.W.3d at 810 (citations omitted).
We emphasize that jurors are the sole judges of the credibility of the witnesses and the weight to be given
their testimony. Id. at 819. When there is conflicting evidence, it is the province of the jury to resolve such
conflicts. Id. at 820. If conflicting inferences can be drawn from the evidence, we assume jurors made all
inferences in favor of their verdict if reasonable minds could, and disregard all other inferences. Id. at 821.
But if the evidence allows only one inference, we may not disregard it. See id. Thus, so long as the evidence
falls within a zone of reasonable disagreement, we cannot substitute our judgment for that of the trier-of-fact.
Id. at 822.
Section 21.051 of the Texas Labor Code, a provision of the Texas Commission on Human Rights Act
(TCHRA), prohibits an employer from discharging or in any other way discriminating against an employee
because of the employee's age. See Tex. Lab. Code Ann. § 21.051. (1) In discrimination cases that have not
been fully tried on the merits, Texas courts apply the burden-shifting analysis established by the United States
Supreme Court. See Canchola, 121 S.W.3d at 739 (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.
S. 133, 142-43 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-07 (1993); Tex. Dep't of Cmty.
Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03
(1973); M.D. Anderson Hosp. v. Willrich, 28 S.W.3d 22, 24 (Tex. 2000)). Under this burden-shifting analysis,
the plaintiff has the initial burden of proving a prima facie case of discrimination by a preponderance of the
evidence. Stanley Stores Inc. v. Chavana, 909 S.W.2d 554, 559 (Tex. App.-Corpus Christi 1995, writ denied).
(2) Discrimination can by proven by direct or circumstantial evidence. Quantum Chem. Corp. v. Toennies, 47
S.W.3d 473, 476 (Tex. 2001); Garcia v. Allen, 28 S.W.3d 587, 600 (Tex. App.-Corpus Christi 2000, pet.
However, when, as here, a discrimination case has been fully tried on its merits a reviewing court does not
engage in a burden-shifting analysis. See Wal-Mart Stores, Inc., v. Canchola, 121 S.W.3d 735, 739 (Tex.
2003) (citing Rubinstein v. Adm'rs of the Tulane Educ. Fund, 218 F.3d 392, 402 (5th Cir. 2000); City of Austin
Police Dep't v. Brown, 96 S.W.3d 588, 599 n.4 (Tex. App.-Austin 2002, pet. dism'd); see also Travis v. Board
of Regents of Univ. of Texas, 122 F.3d 259, 263 (5th Cir. 1997). (3) Instead, the evaluation process is
streamlined and we proceed directly to whether the plaintiff submitted legally sufficient evidence to support
the jury's ultimate finding. Wal-Mart Stores, Inc., 121 S.W.3d at 739 (citing Rutherford v. Harris County, Texas,
197 F.3d 173, 180-81 (5th Cir. 1999) (stating "We need not parse the evidence into discrete segments
corresponding to a prima facie, an articulation of a legitimate, nondiscriminatory reason for the employer's
decision, and a showing of pretext.")); see also City of Austin Police Dep't., 96 S.W.3d at 596 (stating "an
affirmative finding will be reviewed on appeal on the basis of whether the plaintiff produced sufficient evidence
for the jury to find discrimination had occurred."). At trial, it was Reyes' burden to prove that age was a
motivating factor in AutoZone's decision to discriminate against or discharge him. See Canchola, 121 S.W.3d
at 739; Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 480 (Tex. 2001) (stating that a motivating factor
is the standard of causation regardless of how many factors influenced the employment decision); see also
Rutherford, 197 F.3d at 180-81.
Thus, in discussing AutoZone's first issue, we inquire whether the evidence is legally sufficient to support the
jury's finding that age was a motivating factor in AutoZone's decision to discriminate against or discharge
Reyes. Wal-Mart Stores, Inc., 121 S.W.3d at 739.
Reyes gave the following testimony as his reasons for believing that he was discharged because of his age.
Co-workers, Alvarado and Guadalupe Garcia made comments such as "you are getting too old" and "you
need to be faster." Reyes felt pressured because of his inability to stay up to date with the increasingly
difficult computer programs. Alvarado told Reyes that Jesse Villarreal, a manager at AutoZone, stated that
Reyes had been discharged due to his age. AutoZone gave preferential treatment to younger employees by
not firing them after similar complaints were lodged against them. For instance, Alvarado, who was younger
than Reyes, was not discharged as a result of Knowles' sexual harassment complaint, simply because
Alvarado denied harassing Knowles. Additionally, three employees, a female in her twenties (Anne Beaty), a
male in his twenties (Alex Parga), and a male in his thirties (John Parrack), who were discharged due to
violations of AutoZone's sexual harassment policy were made eligible for rehire with "provision" or "with
reservation" while Reyes was not. In addition, a forty-year-old San Antonio employee (Elroy Harrison), who
was discharged for violating AutoZone's sexual harassment policy, was first given a reprimand for the "same
type of behavior," then upon the employee's continued violation, was discharged.
Jim Alvarado, a manager at the store for a period of two to three months, testified that Villarreal told him that
Reyes, the oldest employee at the store, had been terminated because of his age. After learning Reyes had
been terminated, Alvarado approached Villarreal to turn in his keys and told Villarreal that he preferred
quitting to being fired for sexual harassment. Villarreal responded by stating "whoever needs to be punished
has been punished. AutoZone is just trying to get rid of the old people." Alvarado explained that Villarreal
elaborated that the "old ones" have a certain way of working and that AutoZone was trying to make changes.
Alvarado also testified that although Knowles had launched a sexual harassment complaint against him, he
was not terminated.
Regarding AutoZone's sexual harassment training, Alvarado testified it was not sexual harassment when a
male and a female employee greeted each other with a hug or handshake and that it was not against policy to
greet each other with a hug or peck on the cheek unless it was clear that it was unwelcome. He testified that
everyone at the store greeted each other in one of these manners, even management, and that Knowles
always seemed to welcome the contact with Reyes and would at times initiate contact herself.
On cross-examination, Alvarado testified that he understood Villarreal's comment- "AutoZone is just trying to
get rid of the old people"- to mean that AutoZone was getting rid of all the old people that had been with the
company for a long time. Alvarado also informed the jury that according to AutoZone policy, an employee who
files a false sexual harassment claim will be disciplined or terminated. Although Knowles falsely accused him
of sexual harassment, no action was taken against her. Instead, Knowles' request to transfer to another store
was granted, a transfer that had previously been denied.
Jesse Villarreal, who was one of Reyes' managers at AutoZone, testified that when he commented to Alvarado
that AutoZone was getting rid of old people, he meant "old management" and that management changes were
needed because some managers were "too lax" and "had a tendency to bend the rules." In support of his
contention, Villarreal mentioned two AutoZone managers who were terminated for policy violations, both of
whom were in their early to mid-30s and had been managers for thirteen or fourteen years.
Guadalupe Garcia, an AutoZone sales person, testified that he was the one who reported Knowles' sexual
harassment concerns to assistant manager Edmundo Morales. Garcia testified that on March 10, Knowles told
him that she was upset with Alvarado because he did not let her leave work early that day even though her
babysitter had quit. Alvarado did not allow Knowles to leave because the store would be understaffed. Garcia
then commented to Knowles that he had seen Reyes lean toward her and asked her how she felt about it.
Knowles responded that she felt uncomfortable, but that she did not characterize it as sexual harassment.
Garcia also testified that he had never seen Reyes hug, kiss, or sexually harass anyone. He acknowledged
that although Knowles initially told him that Reyes had kissed her, she testified at trial that Reyes did not kiss
her. Garcia further testified that it is not uncommon for him to greet his ex-wife, also an AutoZone employee,
with a "peck" on the cheek when he visits the store where she is employed. He testified that no one ever
informed him that greeting each other with a kiss or "peck" constitutes sexual harassment.
Ken Knecht, AutoZone's Regional Loss Prevention Manager, testified that he interviewed and obtained
statements from Knowles, Alvarado, Reyes, Garcia, and Julia Araujo. Knecht submitted the statements to
Melody Jones Deener, an AutoZone Relations Specialist located at AutoZone's corporate headquarters in
Tennessee. Deener and Rene Munoz, an AutoZone Regional Manager, both testified that they recommended
Reyes' discharge because Reyes acknowledged that he had engaged in conduct which violated AutoZone's
sexual harassment policy. Deener further testified that an employee who is terminated for sexual harassment
is not eligible for rehire.
We conclude that Alvarado's testimony, that Villarreal stated that AutoZone terminated Reyes due to his age,
is direct evidence that age was a motivating factor in AutoZone's decision to discharge Reyes. See Garcia v.
Allen, 28 S.W.3d 587, 600 (Tex. App.-Corpus Christi 2000, pet. denied) (stating that direct evidence may
demonstrate that the given reason for the discharge was false). AutoZone argues, as it did at trial, that
Villarreal's reference to "old people" refers to the time or experience as a manager and not to age. However,
even assuming such reference could have carried that connotation; the statements themselves do not reveal
such an alternative meaning, and the jury clearly found otherwise. See City of Austin Police Dep't v. Brown, 96
S.W.3d 588, 596 (Tex. App.-Austin 2002, pet. dism'd) (concluding that the statements "We need to move
some of these older officers out and give these younger guys a chance at these jobs," "We want to get you
old guys out of there and get some young guys in," and "We're trying to get rid of you old guys," are direct
evidence of age as a motivating factor despite appellant's claim that the comments referred to "time" or
"experience" as opposed to age); see also Celanese Ltd. v. Skarbanek, 2005 Tex. App. LEXIS 8875 at *8
(Tex. App.-Corpus Christi 2005, no pet.) (finding legally sufficient evidence of wrongful termination where
employee testified that a nurse employed by appellant informed him that part of the reason for his termination
was the fact that he filed a workers' compensation claim despite nurse denying making such statement at
trial). We remain mindful that it is the province of the jury to resolve conflicts in evidence, to draw whatever
inferences it may from conflicting inferences, and to judge the credibility of the witnesses. See City of Keller,
168 S.W.3d at 819-21.
We further conclude that Reyes' evidence that younger employees who also violated the sexual harassment
policy either were not fired or were made eligible for rehire with "provision" or "reservations" is some evidence
that AutoZone discriminated against Reyes due to his age. See Ysleta Indep. Sch. Dist. v. Monarrez, 177 S.W.
3d 915, 917 (Tex. 2005) (providing "[t]o prove discrimination based on disparate discipline, the disciplined
and undisciplined employees' misconduct must be of 'comparable seriousness.' Although 'precise equivalence
in culpability between employees is not the ultimate question,' to prove discrimination, the plaintiff must usually
show 'that the misconduct for which [he] was discharged was nearly identical to that engaged in by [other]
employee[s] whom [AutoZone] [retained or treated differently].'"). Here, the employees that were treated
differently all violated AutoZone's sexual harassment policy, however, they were treated more favorably than
Reyes. Thus, by not retaining or making Reyes eligible for rehire, AutoZone discriminated against him in
connection with a term, condition, or privilege of employment. See Tex. Lab. Code Ann. § 21.051.
We agree AutoZone presented evidence that it had a legitimate, non-discriminatory motive for terminating
Reyes, namely the admitted violation of the sexual harassment policy. However, Reyes testified that he never
thought his "friendly" manner of greeting Knowles was a violation of the sexual harassment policy. The jury
was the sole evaluator of the witnesses' credibility and entitled to resolve conflicts in the testimony as it saw fit.
Id. Viewing the evidence presented in the record in the light most favorable to the verdict and disregarding all
contrary evidence that a reasonable jury could have disbelieved, we conclude that the evidence was legally
sufficient to support the jury's finding that Reyes' age was a motivating factor in AutoZone's decision to
terminate him. See id.; Canchola, 121 S.W.3d at 739; Quantum Chem. Corp., 47 S.W.3d at 480. AutoZone's
first issue is overruled.
II. Jury Question Number One
By its second issue, AutoZone contends the court committed harmful error when it allowed the jury to find
liability against AutoZone for either discriminating against or discharging Reyes in the same question because
the question improperly commingled valid and invalid liability grounds. Harris County v. Smith, 96 S.W.3d 230
(Tex. 2002); Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378 (Tex. 2000).
Question number one of the court's charge asked: "Was age a motivating factor in AutoZone's decision to
discriminate against or discharge Plaintiff Reyes?" The jury answered "yes."
AutoZone complains that the pleadings and the evidence at trial do not support the alternative theory of
recovery that Reyes was discriminated against as a result of his age. AutoZone maintains that the case was
only about whether age was a motivating factor in its decision to discharge Reyes.
In the court's charge conference, AutoZone objected as follows:
MR. HUGHES: Now, in connection with Question No. 1, of course, we object that there is no evidence of any
unlawful discrimination evidence that age was a motivating factor in the decision to terminate.
Second, we object to the inclusion of the phrase "or discriminate." In Question No. 1 there is no pleading or
any - - and there is no evidence of any unlawful activity other than terminating Mr. Reyes from his
employment. That's the only form of discrimination showed [sic] by the evidence. We ask that it be stricken for
Also, that there is no instruction exactly defining it for the, that's it [sic] vague, and allows the jury to wonder
about and determine what kind of discrimination he might have suffered other than losing his job. And
because there is no pleading in evidence and it shouldn't be in there, we also have the problem that if the jury
answers the question yes, we won't know whether they found it because they terminated him or on the basis
of some form of discrimination.
AutoZone then tendered its Request No. 4, a proposed instruction. The trial court denied the requested
As discussed in the legal sufficiency analysis above, Reyes plead and presented evidence that he was also
discriminated against and the jury was asked to consider evidence that he was treated differently than
younger employees that violated the sexual harassment policy. Accordingly, the jury could have properly
based its decision on the evidence of discharge or discrimination or both. Because both grounds were
supported by evidence and were properly submitted there was no improper commingling of valid and invalid
AutoZone also complains that inclusion of the term "discriminate against," without more, allowed the jury to
find liability based on a ground that was not properly limited or legally defined. In this regard, AutoZone
argues that §21.051 of the Texas Labor Code permits liability for discrimination "in connection with
compensation or the terms, conditions, or privileges of employment." Tex. Labor Code Ann. §21.051. At trial,
AutoZone objected on the grounds that the charge failed to include an "instruction exactly defining it."
AutoZone concedes in its post submission brief that Texas Rule of Civil Procedure 278 sets out error
preservation for objecting to a charge. If one complains about a definition or instruction, the complaining party
must submit a draft instruction in writing and get a ruling. Appellant's Post Submission Brief p.8. Here,
AutoZone's proposed instruction did not contain a definition for "discriminate against." Failure to submit a
definition or instruction shall not be deemed a ground for reversal of the judgment unless a substantially
correct definition or instruction has been requested in writing and tendered by the party complaining of the
judgment." Tex. R. Civ. P. 278. To preserve error, the complaining party must tender a written request to the
trial court for submission of the instruction, which is in substantially correct wording. Gerdes v. Kannamer, 155
S.W.3d 523, 534 (Tex. App.-Corpus Christi 2004, pet. denied). A ruling is also required to preserve error.
Sears, Roebuck & Co. v. Abell, 157 S.W.3d 886, 892 (Tex. App.-El Paso 2005, pet. denied). Accordingly,
AutoZone failed to preserve error. Appellant's second issue is overruled.
III. Back Pay
By its third issue, AutoZone argues that there is no evidence supporting the jury's award of $61,440 in back
pay. AutoZone contends the evidence is insufficient to support the back pay award because the jury failed to
offset the back pay by the amount of Reyes' unemployment compensation and interim earnings.
AutoZone provides that Reyes would have earned $53,376 if he had been employed at AutoZone from the
time of his discharge (April 2000) until the date of the jury's verdict (December 2002). However, during this
period, Reyes earned $32,323 from unemployment and other employment. AutoZone contends the jury failed
to offset the finding for back pay with Reyes' interim earnings and unemployment compensation. As such,
AutoZone contends Reyes only established a maximum back pay loss in the amount of $21,053.
In awarding back pay, the court must deduct any interim earnings, workers' compensation benefits, and
unemployment compensation benefits. Tex. Lab. Code Ann. §21.258(c) (Vernon 2006); Stanley Stores, Inc. v.
Chavana, 909 S.W.2d 554, 563 (Tex. App.-Corpus Christi 1995, writ denied). The jury was instructed that
"back pay" is that amount of wages and employment benefits that Reyes would have earned if he had not
been subjected to his employer's unlawful conduct, less any wages, unemployment compensation benefits, or
workers' compensation benefits he received in the interim. Reyes concedes that the evidence showed that his
wages from the date of discharge to the date of the jury's verdict would have been "approximately $53,000."
However, he claims the evidence demonstrated he "also had the opportunity to work overtime." Thus, "[o]
vertime pay would have substantially increased the amount that Reyes would have received from AutoZone."
In addition, Reyes claims he had various fringe benefits such as medical insurance, the option to purchase
company stock, and vacation and sick leave that the jury could have considered in reaching an award. He
contends, without citing to authority, that although the value of these benefits is not expressly stated in the
record "the jury certainly has the discretion to assign a reasonable figure to these common benefits, given
[his] salary." Reyes testified that he "sometimes" had the opportunity to work overtime and that he received a
raise every year at AutoZone and he explained that the $19,000 per year he was making at the time of his
discharge did not include raises. Further, as it relates to employment benefits, AutoZone made health
insurance available but Reyes had to pay for it himself. He was entitled to four weeks of paid vacation (at
about $365 a week) and received five days of sick leave a year. AutoZone offered stock options which he
would buy and sell, making money off them. Although AutoZone offered a 401(k) plan, he was not enrolled in
Reyes cites to Mayberry v. Texas Dep't of Agriculture, 948 S.W.2d 312, 317 (Tex. App.-Austin 1997, writ
denied), City of Houston v. Harris County Outdoor Adv. Ass'n, 879 S.W.2d 322, 334 (Tex. App.-Houston [14th
Dist.] 1994, writ denied), and First State Bank v. Keilman, 851 S.W.2d 914, 930 (Tex. App.-Austin 1993, writ
denied) for the proposition that a jury has the discretion to award damages within a range of evidence
presented at trial, so long as a rational basis exists for the jury's calculation. While these cases stand for this
proposition, the cases only lend credence to awards which are reasonable based on a range of damages
presented at trial and supported by the evidence. See Mayberry, 948 S.W.2d at 317; City of Houston, 879 S.
W.2d at 334; Keilman, 851 S.W.2d at 930. The evidence in the present case, as the parties concede,
supports an award of back pay loss in the amount of $53,376. However, Reyes' testimony that he sometimes
worked overtime, received a raise every year, was entitled to four weeks paid vacation, and received five days
of sick leave a year, provides a rational basis for the jury to assign a reasonable value to these benefits in
reaching its entire award of $61,440. However, it is apparent that the jury failed to offset its award with Reyes'
interim earnings and unemployment compensation benefits. Therefore, we conclude the evidence was
sufficient to establish that Reyes was entitled to $61,440 in back pay, less $ 32,323 for interim earnings and
compensation benefits, or $29,117 in back pay. See Tex. Lab. Code Ann. §21.258(c). We sustain this issue
as it relates to offsetting interim earnings and unemployment benefits, and modify the judgment to reflect a
back pay award of $29,117.
IV. Compensatory Damages
In its fourth issue, AutoZone argues that the jury's award of $211,840 in compensatory damages is not
supported by the evidence and alternatively argues that the award should be reduced.
Plaintiffs may recover compensatory damages under the Texas Commission on Human Rights Act (TCHRA).
Tex. Lab. Code Ann. § 21.2585(a)(1) (Vernon 2006). Compensatory damages include future pecuniary
losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other
nonpecuniary losses, but may not include back pay, interest on back pay, or other equitable relief authorized
under section 21.258(b). See id. §21.2585(c), (d).
Jury question number two asked, "What sum of money, if any, if paid now in cash, do you find from a
preponderance of the evidence would reasonably and adequately compensate SALVADOR REYES for
damages sustained from such conduct?" The jury was instructed that compensatory damages include future
pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and
other nonpecuniary damages. See id.
Specifically, AutoZone focuses on the mental anguish component of the award. AutoZone argues that Reyes'
evidence fails to rise to the high degree of mental pain and distress required to support an award of mental
anguish damages. AutoZone contends that Reyes' evidence merely establishes that Reyes "developed a
rash, was upset over losing his job, was embarrassed about this, and that he drank to excess for a period of
time." AutoZone asserts that these alleged emotional injuries are insufficient to justify an award for mental
anguish and that they are no more than "mere worry, anxiety, vexation, embarrassment, or anger." See Saenz
v. Fidelity Guar. Ins. Underwriters, 925 S.W.2d 608, 614 (Tex. 1996); Parkway Co. v. Woodruff, 901 S.W.2d
434, 444 (Tex. 1995).
In addressing mental anguish, we are guided by the Texas Supreme Court's decision in Saenz. See Saenz,
925 S.W.2d at 614. In Saenz, the court reaffirmed Parkway, and found that mental anguish damages could
not be awarded without either "'direct evidence of the nature, duration, or severity of [plaintiffs'] anguish, thus
establishing a substantial disruption in the plaintiffs' daily routine, or other evidence of a high degree of
mental pain and distress' that is 'more than mere worry, anxiety, vexation, embarrassment, or anger.'" Id.
(citing Parkway, 901 S.W.2d at 444). Such evidence can take the form of the claimant's own testimony.
Parkway, 901 S.W.2d at 444. Additionally, there must be some evidence to justify the amount actually
awarded. Saenz, 925 S.W.2d at 614. While the Saenz court acknowledged that juries should be given some
measure of discretion in finding damages, it made clear that a jury's discretion was not unlimited. See id.
Reyes' testimony fairly conveys the nature of his mental anguish. Reyes had worked at AutoZone for fifteen
years. Losing his job made him very "depressed, sad, angry," caused him to become more "reserved with the
family," and caused him to begin drinking excessively. He testified "when you lose your job when you are 62
years old, you kind of think, '[w]ell, who is going to hire me again?' I was afraid of not finding a job locally. I
was afraid of the future. I thought I had let my family down." At the time of his termination he was the only one
working in his household. About two weeks after he was fired, he developed a rash that was "like scabs all
over my body." Reyes visited a doctor in Matamoros, Mexico who told him that the rash was actually psoriasis
and that "the main cause was stress, very stressed, emotional stress." Reyes stated there is no cure for the
psoriasis. At the time of trial, Reyes still had a rash on his ankles and experienced flare-ups from time to time.
Reyes also testified that he was having trouble sleeping. Reyes began working at O'Reilly's about a month
and a half after he was discharged at AutoZone and testified that finding a job at O'Reilly's helped him with his
mental state and he "put [his] life together . . . ." His position at O'Reilly's was as a salesperson or
counterman, which is the lowest rank, unlike his prior position at AutoZone which was managerial. He
explained that in applying at O'Reilly's he had to inform the supervisor that he was terminated from AutoZone
because he was falsely accused of sexual harassment. When asked if he was embarrassed to tell the
supervisor about the sexual harassment allegation, Reyes responded, "I had to be honest with him."
Reyes' wife, Victoria, testified that after Reyes was terminated "he was taking [sic] from the family." He started
having trouble sleeping, he also started drinking and getting sick. She would tell Reyes that he was drinking
too much and he would explain that he would drink so that he could sleep. Reyes visited a doctor in
Matamoros after he developed a rash on his body and the doctor asked if there had been a death in the
family or depression. Her relationship with Reyes suffered after he was discharged because he was very
upset and started drinking. Their youngest daughter lived with them at the time of Reyes' discharge. Although
Reyes was able to get a job pretty quickly, things did not get back to normal because Reyes had to start all
over at the age of 62.
We conclude the foregoing evidence is legally sufficient to find that Reyes suffered mental anguish, and the
jury's award is not unsupported by the evidence or against the great weight and preponderance of the
evidence. Moreover, we note that the jury may or may not have awarded the full $211,840 for mental anguish,
or may have awarded some amount for the other types of compensatory damages included in the definition
given to the jury. It would be improper for us to speculate on how the jury divided its award among the various
types of compensatory damages. See Hernandez v. American Appliance Mfg. Corp., 827 S.W.2d 383, 389
(Tex. App.-Corpus Christi 1992, writ denied).
To successfully challenge a multi-element damage award on appeal, the appellant must address all of the
elements and illustrate why the evidence is insufficient to support the entire award. Golden Eagle Archery Inc.
v. Jackson, 116 S.W.3d 757, 771 (Tex. 2003); Norfolk Southern Rwy. Co. v. Bailey, 92 S.W.3d 577, 583-84
(Tex. App.-Austin 2002, no pet.); Brookshire Bros., Inc. v. Lewis, 997 S.W.2d 908, 921-22 (Tex. App.-
Beaumont 1999, pet. denied); Price v. Short, 931 S.W.2d 677, 688 (Tex. App.-Dallas 1996, no writ).
While AutoZone argues that there was no evidence of mental anguish, AutoZone failed to address the
evidence pertaining to the other types of compensatory damages. We therefore cannot further analyze
AutoZone's challenge regarding compensatory damages because this would entail speculation about how the
jury divided its award among the various types of compensatory damages. See Thomas v. Oldham, 895 S.W.
3d 352, 359-60 (Tex. 1995).
V. Jury Question Number Two
By its fifth issue, AutoZone contends the trial court improperly submitted jury question number two to the jury.
Jury question number two reads:
What sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence would
reasonably and adequately compensate SALVADOR REYES for damages sustained from such conduct?
Consider the elements of damages listed below and none other. Consider each element separately. Do not
include damages for one element in any other element. Do not include interest on any amount of damages
you may find.
Do not include in your answer any amount that you find SALVADOR REYES could have earned by exercising
reasonable diligence in seeking other employment.
Answer separately, in dollars and cents for damages, if any.
a. Back pay.
"Back pay" is that amount of wages and employment benefits that Salvador Reyes would have earned if he
had not been subjected to his employer's unlawful conduct less any wages, unemployment compensation
benefits or workers' compensation benefits he received in the interim.
"Employment benefits" include sick-leave pay, vacation pay, profit-sharing benefits, stock options, pension
fund benefits, monetary losses incurred as a result of the loss of health, life, dental or similar insurance
b. Compensatory damages.
"Compensatory damages" include future pecuniary losses, emotional pain, suffering, inconvenience, mental
anguish, loss of enjoyment of life, and other nonpecuniary damages. Do not include back pay or interest in
calculating damages, if any.
As a sub-point in its fifth issue, AutoZone contends the trial court erred in submitting the question of back pay
to the jury because "only the judge, not the jury, may award equitable relief such as back pay." In support of
this argument, AutoZone cites to Texas Labor Code section 21.258 and Caballero v. Central Power & Light
Co., 858 S.W.2d 359, 361 (Tex. 1993). See Tex. Lab. Code Ann. § 21.258. AutoZone contends that, pursuant
to section 21.258, "the court may, among other things, order such additional equitable relief, including back
pay, as may be appropriate." (5) The relevant language in section 21.258 provides that the trial court may
order additional equitable relief as may be appropriate, and specifies that additional equitable relief may
include "hiring or reinstating with or without back pay." Id. § 21.258 (a)(2), (b)(1). While section 21.258 makes
the award of additional equitable relief in the form of "hiring or reinstating with or without back pay" a matter
left up to the trial court's discretion, it neither expressly or implicitly provides that back pay can only be
awarded by the trial court. (6)
In an attempt to construe section 21.258 as providing that back pay can only be awarded by the trial court,
AutoZone cites to the supreme court's decision in Caballero. See Caballero, 858 S.W.2d at 360-61. However,
AutoZone's reliance is misplaced. While Caballero does provide that equitable relief under the TCHRA is to be
determined by the trial court, it does not provide that back pay can only be awarded by the trial court. See id.
(holding that "when properly requested, jury trials are appropriate for finding the ultimate issues of fact under
the TCHRA, but not for fashioning appropriate equitable relief."). Further, the corresponding jury charge,
Texas Pattern Jury Charge 110.30, clearly contemplates that the issue of back pay be submitted to the jury.
See Comm. On Pattern Jury Charges, 1 State Bar of Texas, Texas Pattern Jury Charges-Business,
Consumer, Employment PJC 110.30 (2002) (providing charge for question on back pay). In addition, we note
that the issue of back pay has consistently been submitted to juries. See Hoffmann-La Roche, Inc. v.
Zeltwanger, 144 S.W.3d 438, 442 (Tex. 2004); U.S. Auto. Ass'n v. Brite, 161 S.W.3d 566, 575 (Tex. App.-San
Antonio 2005, pet. filed); Ancira Enters. v. Fischer, 178 S.W.3d 82, 92 n.13 (Tex. App. -Austin 2005, no pet.);
see also Claymex Brick & Tile, Inc. v. Garza, 2006 Tex. App. LEXIS 7417 (Tex. App.-Corpus Christi 2006, no
pet.); W. Telemarketing Corp. Outbound v. McClure, No. 2006 Tex. App. LEXIS 9404 (Tex. App.-El Paso
2006, no pet.). Accordingly, we find AutoZone's contention without merit and conclude that a jury may award
back pay. We overrule AutoZone's fifth issue as it relates to whether the jury could award back pay.
As a second sub-point in its fifth issue, AutoZone claims a new trial is required because valid and invalid
damage elements were commingled in broad-form submission in question 2a. See Harris County v. Smith, 96
S.W.3d 230, 234 (Tex. 2003); Tex. R. Civ. P. 277. (7)
Specifically, AutoZone contends the trial court erred in submitting jury question 2a in broad-form because
Reyes only proved losses as a result of his vacation pay and sick leave pay but did not prove loss as a result
of profit-sharing benefits, stock options, pension fund benefits, or monetary losses incurred as a result of the
loss of health, life, dental or similar insurance coverage. Thus, AutoZone argues, these elements were
improperly submitted to the jury without any evidentiary support.
AutoZone lodged the following objection to question 2a:
We further would object to the question in that it asks about any submission on employment benefits. That
there is no evidence of employment benefits that he lost such as vacation pay, profit sharing, stock options,
pension, insurance benefits, et cetera. There is no evidence of that or that would help the jury calculate an
amount, even if there was some evidence that he lost it. There is no evidence to help them determine any
amount whatsoever. And because it's all submitted together, we won't know how much the jury has awarded
for each and, therefore, it prevents me from being able to show reversible error on that point.
The trial court has a duty to submit only those questions, instructions, and definitions raised by the pleadings
and the evidence. See Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex. 1992); see also Tex. R. Civ. P. 278.
However, broad-form submission cannot be used to put before the jury issues that have no basis in the law or
the evidence. Harris County v. Smith, 96 S.W.3d 230, 236 (Tex. 2002); Crown Life Ins. Co. v. Casteel, 22 S.W.
3d 378, 388-89 (Tex. 2000). (8)
Although AutoZone couches its objection and complaint on appeal as one challenging the sufficiency of the
evidence of different elements of back pay and asks this Court to conduct an analysis in light of Harris
County, AutoZone is in reality taking issue with the definition of the types of back pay, specifically
"employment benefits." AutoZone contends the definition of "employment benefits" should have been modified
to only include those types of employments benefits which were supported by the evidence.
The trial court has considerable discretion in framing a jury charge and is given wide latitude to determine the
propriety of explanatory instructions and definitions. H.E. Butt Grocery Co. v. Bilotto, 985 S.W.2d 22, 23 (Tex.
1998); Redwine v. AAA Life Ins. Co., 852 S.W.2d 10, 14 (Tex. App.-Dallas 1993, no writ). In submitting
definitions to assist the jury, the trial court has even more discretion as long as the definition is itself
reasonably clear in performing its function. Harris v. Harris, 765 S.W.2d 798, 801 (Tex. App.-Houston [14th
Dist.] 1989, writ denied); see Columbia Rio Grande Reg'l Healthcare, L.P. v. Hawley, 188 S.W.3d 838, 863
(Tex. App.-Corpus Christi 2006, pet. filed); Grenier v. Joe Camp, Inc., 900 S.W.2d 848, 850 (Tex. App.-
Corpus Christi 1995, no writ). Accordingly, we review the court's rulings under an abuse of discretion
standard. Hiroms v. Scheffey, 76 S.W.3d 486, 487 (Tex. App.-Houston [14th Dist.] 2002, no pet.). A trial court
abuses its discretion if it acts without regard to any guiding rules or principles. Id.; Texas Dep't of Human
Servs. v. E.B., 802 S.W.2d 647, 649 (Tex. 1990).
The only function of an explanatory instruction or definition in the charge is to aid and assist the jury in
answering the issues submitted. Harris, 765 S.W.2d at 801. The definition given by the trial court tracks the
language of the recommended definition provided by section 110.30 of the Texas Pattern Jury Charges.
Definitions shall be given as necessary to enable jurors to understand legal words or phrases used so that
they may properly answer the special issues and render a verdict in the case. Id. (citations omitted). The test
of the sufficiency of a definition is its reasonable clarity in performing this function. Id. (citations omitted).
To show reversible error, appellant must demonstrate harm from the definition complained of. Id. While
AutoZone speculates confusion as to whether the jury based its verdict on a type of employment benefit
allegedly not supported by evidence, there was no showing of such confusion as demonstrated by the jury's
answers. Id. Thus, the court did not commit reversible error in submitting the definition as it did. We overrule
AutoZone's second sub-issue.
In a third sub-issue, AutoZone challenges jury question 2b's definition of "compensatory damages" which lists
"future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life,
and other nonpecuniary damages" as types of compensatory relief available. Again, AutoZone claims Reyes'
evidence failed to support submission of "future pecuniary losses, inconvenience, nonpecuniary damages, or
loss of enjoyment of life" as types of compensatory damages. The definition of compensatory damages
submitted in question 2b also tracks the language of pattern jury charge 110.30. As we stated above, in
submitting a definition, a trial court has "even more discretion as long as the definition is itself reasonably
clear in performing its function." See Harris, 765 S.W.2d at 801; see also Hawley, 188 S.W.3d at 863; Grenier,
900 S.W.2d at 850. AutoZone again speculates confusion as to whether the jury based its verdict on a type of
compensatory damage allegedly not supported by evidence. However, there was no showing of such
confusion as demonstrated by the jury's answers. Id. Thus, the court did not commit reversible error in
submitting the definition as it did. We overrule AutoZone's third sub-issue. AutoZone's fifth issue is thus
overruled in its entirety.
VI. Punitive Damages
In its sixth issue, AutoZone contends the evidence is insufficient to support the jury's award of punitive
damages. Punitive damages may be awarded if the employer acted with malice or reckless indifference to the
state-protected rights of the employee. Tex. Lab. Code Ann. § 21.2585. The standard for recovery of
exemplary damages is by clear and convincing evidence. Tex. Civ. Prac. & Rem. Code Ann. § 41.003 (Vernon
As evidence in support of the punitive damages award, Reyes argues that "AutoZone upper management was
well aware of the fact that federal law requires them not to discriminate on the basis of age . . . . Yet, despite
their acknowledgment of the applicability of the state and federal age discrimination laws, AutoZone set about
on a course of action which constituted a pattern and practice of discriminating against older employees, by
treating them more harshly than younger employees." At most, Reyes' contention only demonstrates that
AutoZone discriminated against him. However, more than mere discrimination is required to authorize punitive
damages. Kolstad v. Am. Dental Assoc., 527 U.S.526, 534 (1999). After reviewing the record, we conclude
there is no evidence of malice or reckless indifference to justify the imposition of punitive damages.
Accordingly, we sustain AutoZone's sixth issue. (9)
The judgment of the trial court is MODIFIED to reduce the award of back pay and to delete the award of
punitive damages. Otherwise the judgment is AFFIRMED AS MODIFIED.
DORI CONTRERAS GARZA,
Justice Federico Hinojosa not participating.
Memorandum Opinion delivered and filed this the 29th day of December, 2006.
1. When reviewing an issue under chapter 21, we may look to cases involving the state statute as well as
cases interpreting the analogous federal provisions in resolving these claims. Quantum Chem. Corp. v.
Toennies, 47 S.W.3d 473, 476 (Tex. 2001); M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 24
2. To make a prima facie case of age discrimination "a plaintiff must show that '(1) he was discharged; (2) he
was qualified for the position; (3) he was within the protected class at the time of discharge; and (4) he was
either i) replaced by someone outside the protected class, ii) replaced by someone younger, or iii) otherwise
discharged because of his age.'" Palasota v. Haggar Clothing Co., 342 F.3d 569, 576 (5th Cir. 2003) (quoting
Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 957 (5th Cir. 1993)).
3. Once the case has been submitted to the jury, the adequacy of a party's showing at any particular stage of
the McDonnell Douglas analysis is unimportant. Travis v. Board of Regents of Univ. of Texas, 122 F.3d 259,
263 (5th Cir. 1997). "The question of whether a plaintiff made out a prima facie case of discrimination has no
place in a jury room." City of Austin Police Dep't v. Brown, 96 S.W.3d 588, 596-97 (Tex. App.-Austin 2002,
pet. dism'd) (citing Walther v. Lone Star Gas Co., 952 F.2d 119, 122 (5th Cir. 1992)).
4. Jury question two tracks the language found in the corresponding Texas Pattern Jury Charge. See Comm.
On Pattern Jury Charges, 1 State Bar of Texas, Texas Pattern Jury Charges-Business, Consumer,
Employment PJC 110.30 (2002).
5. We note that AutoZone's brief cites to section 21.2585 of the labor code which relates to compensatory
damages, instead of section 21.258 which is the section relating to equitable relief.
6. We also note that in allowing the trial court to award equitable relief in the form of "hiring or reinstating with
or without back pay" the statute did not necessarily intend that the back pay itself be considered a form of
equitable relief. See Tex. Lab. Code Ann. § 21.258 (Vernon 2006). Moreover, equitable relief consists of
nonmonetary relief, such as an injunction or specific performance. See Black's Law Dictionary 1038 (7th ed.
2000). Back pay is not equitable relief.
7. When a damages question mixes valid and invalid elements of damages in a single, broad-form submission
and the defendant adequately and correctly objected, harmful error occurs because the appellate court
cannot determine whether the jury based its verdict on an invalid or improperly submitted damage element.
See Harris County v. Smith, 96 S.W.3d 230, 234 (Tex. 2003); Tex. R. App. P. 61.1(b); see also Crown Life Ins.
Co. v. Casteel, 22 S.W.3d 378, 388 (Tex. 2000) (finding harmful error where single liability question mixed
valid and invalid theories of recovery and defendant properly objected).
8. AutoZone does not contend there was insufficient evidence to support the submission of the issue of back
pay to the jury, as a matter of fact, it concedes that Reyes proved loss of wages, vacation pay, and sick leave
pay. As it relates to compensatory damages, AutoZone also does not challenge the submission of the
question on compensatory damages to the jury. In fact, AutoZone concedes Reyes presented some evidence
of pain and suffering. Thus, whether the trial court properly submitted the questions themselves is not before
9. Given our disposition of this issue, we need not address AutoZone's two remaining issues which relate to
punitive damages. Tex. R. App. P. 47.1.