In a case that’s troubling for Texas employers but exciting for employees, the Fourth Court of Appeals in San Antonio affirmed a big payday judgment for a plaintiff in a retaliation case under the Texas Commission on Human Rights Act (TCHRA). It is troubling because the facts are mundane.
The Oct. 23 opinion in San Antonio Water System v. Nicholas tells the story: A female paralegal for the San Antonio Water System mentioned to the company GC that the vice president of customer service and communications/external relations department had asked her to lunch and she felt uncomfortable. The CEO got involved, human resources employee (and later plaintiff) Debra Nicholas was asked to investigate, and she and the CEO met with the VP. The CEO told the VP to stop asking out female employees and Nicholas chimed in, “[Y]ou need to listen to Dave [the CEO] because what's he's telling you is for your own good.” Fast-forward three years. Nicolas is placed in that very same VP’s chain of command, and she’s let go in a company reorganization.
Can you guess what happened next? That's right: she sued for retaliation, alleging that she engaged in protected activity by agreeing with the CEO and the VP harbored a grudge, then struck back when he had the chance—because, apparently, revenge is a dish best served cold.
In affirming the judgment for Nicolas, the Fourth Court held:
- The jury had sufficient evidence to conclude that Nicolas engaged in protected activity;
- The three-year gap was not legally dispositive in concluding that retaliation did not occur; and
- The one-year period in which the VP supervised Nicholas was the relevant time frame, namely, May 2008 when she started reporting to the VP to May 2009 when she lost her job. (The comment from Nicholas to the VP occurred in early 2006).
The good news just kept rolling in for the plaintiff. The opinion states that Nicholas was awarded $759,007.00 for lost future wages and benefits.(It is not clear from the opinion why the jury made this determination which, as an equitable one, should be made by the court.) The appeals court concluded that front pay is not subject to the $300,000 damages cap in the TCHRA.
I'll bet a vodka martini that the Texas Supreme Court will accept this case. The blog will keep you posted.