Apache Corp. v. Davis

627 S.W.3d 324

APACHE CORPORATION, Petitioner,

v.Cathryn C. DAVIS, Respondent

No. 19-0410

Supreme Court of Texas.

Argued March 23, 2021

OPINION DELIVERED: June 25, 2021

Rehearing Denied September 3, 2021

John W. Griffin Jr., Victoria, Dara S. Smith, for Amici Curiae AARP, AARP Foundation.

John Zavitsanos, Jane Langdell Robinson, Patrick W. Mizell, Houston, Catherine ‘Cathy’ B. Smith, Andrea Cohen, Houston, Timothy C. Shelby, Cameron Byrd, Adam A. Milasincic, Houston, for Petitioner.

Dennis G. Herlong, Houston, Scott David Newar, Beaumont, for Respondent.

Wolfgang P. Hirczy De Mino PhD, Pro Se.

Katrina Patrick, Houston, for Amicus Curiae National Women's Law Center.

Dale Wainwright, Austin, Allison M.P. Stewart, Dallas, for Amicus Curiae The Chamber of Commerce of the U.S.A.

Chief Justice Hecht delivered the opinion of the Court.

In 1995, in Texas Department of Human Services v. Hinds , we held that an employee claiming retaliation must prove that but for his protected conduct, his employer's prohibited conduct "would not have occurred when it did."¹ Just last Term, in Office of Attorney General v. Rodriguez , we emphasized that "[a]n adverse employment action ‘based solely’ on reasons unrelated to [protected conduct] destroys the causal link."² Because evidence of but-for causation is often circumstantial, we have suggested several factors that may be considered in determining whether the standard of proof has been met.³ In this case, we explain the factors' role in applying the causation standard when evidence shows that the employer took action against the employee for a legitimate reason unrelated to the employee's protected conduct. The trial court rendered judgment against petitioner employer on respondent employee's claim of retaliation based on the jury's finding that Petitioner discharged Respondent for complaining in an email of gender discrimination. The court of appeals affirmed.⁴ We conclude that there is no evidence to support the jury's finding that but for Respondent's complaint of gender discrimination in her email, Petitioner would not have terminated her employment when it did. Accordingly, we reverse the court of appeals' judgment and render judgment for Petitioner.

I

A

Petitioner Apache Corp. is a Fortune 500 business engaged in hydrocarbon exploration and production. In 2006, Apache hired Respondent, Cathryn Davis, then 52, for the job of Senior Paralegal in its Houston litigation department. She joined two other paralegals in the department that Apache had hired four or five years earlier. Both were younger women: Laurie Fielder, then 32, also a Senior Paralegal, and Courtney Eldridge, then 27, whose title was Paralegal. A year after Davis' hire, attorney Dominic Ricotta, 42, became head of the department. All parties agree that Davis and Ricotta worked well together for the first few years of his tenure and that Davis received strong performance ratings.

Davis' and Ricotta's relationship began to sour in 2010. That fall, Ricotta announced that Eldridge had been promoted to Senior Paralegal, giving her the same title as Davis, and that E-Discovery Coordinator had been added to Fielder's title. Eldridge's base salary remained lower than Davis'. Fielder's new title reflected e-discovery work that she had already been doing for Apache, and it came with a slight pay bump, raising her base salary to $4,400 above Davis'.

Davis was embarrassed that she did not receive a promotion or additional responsibilities at the same time as the others. In November, Davis approached Ricotta about a promotion for herself. She testified that Ricotta seemed angry with her for asking and responded in a mocking tone that the only way for her to be promoted would be to become a lawyer. Davis further testified that Ricotta told her that he could have an accountant perform some of her work for less pay, such as reconciling outside counsel's legal bills, and that Ricotta threatened to cut her salary. Ricotta has a different view of these conversations. He testified that Davis already held the highest rank of Senior Paralegal and that Fielder's new adjunct title of E-Discovery Coordinator reflected specific expertise that she had developed and that Davis lacked.

Davis turned to an employment lawyer at Apache, David Bernal. She relayed her conversations with Ricotta and complained that she did not understand why she had been passed over for a promotion when she was "old enough to be [Eldridge's and Fielder's] mother" and "had twice as much experience." After their short meeting, Bernal sent Ricotta an email reporting the content of his interaction with Davis. Ultimately, at Davis' request, Legal Research Specialist was added to her Senior Paralegal title, though it did not come with an increase in salary.

B

Apache's official business hours were 7:30 a.m. to 5:30 p.m., Monday through Thursday, and 7:30 a.m. to 11:30 a.m. on Friday. Ricotta traveled frequently and, before the fall of 2012, permitted employees to work flexible schedules and monitor their own hours. Davis took advantage of that flexibility and usually arrived between 9:00 a.m. and 10:00 a.m., staying later into the night. On Tuesdays and Thursdays, she took a midday break for a few hours to drive her daughter to and from college classes. Davis also worked extensive overtime on her own initiative without first obtaining Ricotta's approval.

In November 2012, as a cost-saving measure, Apache directed its department heads to manage employee schedules more proactively and to require them to more closely track Apache's official business hours. On Monday, November 12, Ricotta emailed all litigation-department employees instructing them to submit a proposed 40-hour workweek schedule for 2013. The email stated that "[c]ompany policy controls" and that "[r]egular business hours are preferred" but also that Ricotta would "consider requests to adjust this schedule within reason." The email gave as examples of a reasonable adjustment 6:30 a.m. to 4:30 p.m. or 8:00 a.m. to 6:00 p.m. The email also specified that "[o]vertime by [eligible] employees must be approved by [Ricotta] in advance" and that "[t]he request should be time specific, not project specific." If Ricotta could not be reached, the email advised, the employee's "supervising attorney [could] consider the request and ... keep [Ricotta] apprised." The email asked that scheduling-accommodation requests be sent to Ricotta by Wednesday of that week.

Davis responded by email the same day, stating that she would "like to continue to have the same flexible work schedule that [Ricotta had] supported for several years" and citing as the reason her need to drive her daughter to and from college. Davis acknowledged that Ricotta's "change in ... position on overtime" was likely due to "[c]ompany interests and the current economy" and stated that she would "be glad to stop working over and above regular hours immediately". But, Davis added, she hoped that she had earned Ricotta's trust enough that she "would not have to ask every time" she needed to work "a few extra hours" to meet a deadline.

Later that day, Davis again emailed Ricotta stating that she could not submit a final schedule until her daughter registered for classes for the spring semester. Her best guess, she wrote, was that it would be the same schedule she had been working: "Monday, Wednesday, Friday – usually arriving between 9:00 a.m. and 10:00 a.m. but staying late (quite often until 9:30 p.m.)" and "Tuesday & Thursday – 9:00 a.m. until 12:30 p.m.; then 2:30 p.m. until 8:00 p.m. (however, I was usually staying even later than this)." In response, Ricotta asked Davis to "try to fit as many of the 40 hours as possible inside normal Apache business hours."

Late that night, Davis sent Ricotta a long email about a recent feature in the Houston Chronicle profiling the "100 Best Places to Work in Houston as Chosen by Employees." Davis pointed out that "unfortunately," Apache was not on the paper's list but added that she knew "Apache [had] the potential to make [the] list for 2013 if it would only decide to make that a goal." In several paragraphs, Davis explained how "the ‘best’ places to work seemed to raise the standard on how management show[s] respect to all their employees" by "implement[ing] an employee-centered culture" and "promoting family-friendly flexibility". She opined that "when management ... extends ‘flexibility,’ the appreciation, loyalty, hard work, and innovation of employees skyrocket[ ]". But "the thought that the little flexibility that we need to balance our work and home life is being threatened", she said, "can be very disheartening and actually consume[ ] what would otherwise be very productive time." She closed by telling Ricotta, "we pray for your discernment."

Whether Ricotta responded to Davis' email is unclear. But a few days later, on November 14, Davis sent Ricotta another email stating that "if a 40-hour work week [was] to become [her] new norm, and if [she could] adjust [her] schedule to transport [her] daughter to college on Tuesdays and Thursdays, [she] should be able to start each work day between 8:30 a.m. and 9:00 a.m." At that point, Ricotta contacted Mark Forbes, the manager of Apache's Human Resources Department for North America. On November 15, Forbes emailed Ricotta that it was "time to have a blunt discussion" with Davis and "place a note in her file regarding [her] not following supervisor direction, the expectation that business requirements and schedules be followed, the extra management time required to address her demands and the fragmented work product as a result of [her] working odd hours on an unapproved schedule." Forbes advised Ricotta to "explain that business needs [only] allow[ed] [Ricotta] to approve a schedule that fits [within] the corporate policy"; that Davis' "request for a schedule outside the policy [could not] be supported"; and that Davis therefore could not "leave during the day to transport her...