Apache Corp. v. Davis

573 S.W.3d 475

APACHE CORPORATION, Appellant

v.Cathryn C. DAVIS, Appellee

NO. 14-17-00306-CV

Court of Appeals of Texas, Houston (14th Dist.).

Substitute Opinion filed April 23, 2019

Adam Milasincic, John Zavitsanos, Timothy Conway Shelby, Cameron Byrd, Jane Langdell Robinson, Houston, TX, for Appellant.

Dennis G. Herlong, Brian Weil Zimmerman, Scott Newar, Houston, TX, for Appellee.

Panel consists of Justices Christopher, Wise, and Hassan.

SUBSTITUTE OPINION

Ken Wise, Justice

Appellant Apache Corporation appeals a judgment in favor of its former paralegal, appellee Cathryn C. Davis, on her retaliation claim under Chapter 21 of the Texas Labor Code. See Tex. Lab. Code § 21.055. A jury found that Davis filed a complaint of age or gender discrimination with Apache and that Apache discharged Davis because she filed the complaint. The jury also found that Davis engaged in misconduct and that Apache would have legitimately discharged her solely on that basis. The jury awarded Davis no back pay and no future compensatory damages, but it did award $ 150,000 in past compensatory damages for Davis's emotional pain and suffering and other noneconomic losses related to the retaliation claim. The parties tried Davis's claim for attorneys' fees to the bench, and the trial court awarded Davis $ 767,242 in attorneys' fees plus an additional $ 100,000 in conditional appellate fees.

Apache challenges the trial court's judgment in four issues, arguing there is legally insufficient evidence that Davis engaged in protected activity, but-for causation is lacking, the jury charge is erroneous based on Casteel error,¹ and the attorneys' fees awarded by the trial court are unreasonable and unsupported by sufficient evidence. After reviewing the record, we conclude legally sufficient evidence supports the jury's findings that Davis engaged in a protected activity and that Apache retaliated against her for making a complaint. Given our disposition of Apache's first two issues, we conclude there was no Casteel error. We further conclude regarding the attorneys' fees that there is sufficient evidence to support the award of fees with the exception of a portion of the fees awarded for Dennis Herlong's time. In our original opinion, we suggested a remittitur as to those fees in the amount of $ 70,626. See Tex. R. App. P. 46.3. Davis has timely filed a remittitur. We therefore modify the trial court's judgment to change the amount of attorneys' fees awarded to $ 696,616, and affirm the judgment as modified.

BACKGROUND

Davis began working in Apache's litigation department in March 2006. At the time of her hire, Davis was 52 years old and had many years of experience as a paralegal. Attorney Roxanne Armstrong supervised the department and hired Davis for the position of Senior Paralegal.² The department included two other female paralegals, Laurie Fielder and Courtney Eldridge, both of whom were younger than Davis but had been at Apache several years longer. In 2007, Apache replaced Armstrong with attorney Dominic Ricotta as head of the litigation department. By all accounts, Davis performed her work well, as reflected in her performance reviews, and the parties enjoyed a good working relationship for the next several years.

I. Changes at Apache that led to Davis's complaint of discrimination

Davis contends that this working relationship changed and Apache began discriminating against her in July 2010. At that time, Ricotta promoted Eldridge to Senior Paralegal (the same title as Davis) and gave Fielder, who was already a Senior Paralegal, the additional title of E-Discovery Coordinator. Fielder had been handling the e-discovery duties and Ricotta wanted to give her the title to reflect the additional work that she had been doing, while also giving her a pay increase of $ 5,100 to account for the additional work. The $ 5,100 pay increase was determined by Human Resources based on a market comparison of what others in the industry with similar responsibilities earned. After the promotion, Eldridge continued to earn less money than Davis, but Fielder's pay increase based on the e-discovery responsibilities placed her base salary $ 4,400 per year higher than Davis's base salary.

Davis did not receive a promotion or additional responsibilities. Ricotta stated that Davis, as a Senior Paralegal, already held the highest position available for a paralegal at Apache. Apache considered Fielder's position that encompassed Senior Paralegal and E-Discovery Coordinator to be a hybrid position not applicable to Davis.³

In October 2010, Ricotta announced at a litigation department meeting these promotion and title changes for Eldridge and Fielder. Ricotta did not mention Davis at the meeting. Davis stated she was embarrassed and surprised at the announcement because Davis was Ricotta's right-hand paralegal and had twice as many years of paralegal experience as Eldridge and Fielder. In early November 2010, Davis attempted to raise the issue of a promotion with Ricotta. When Davis referenced the promotions for Eldridge and Fielder, Ricotta quickly responded that Fielder did not get a promotion, merely a title change, and seemed to be angry with her for asking. A short time later Davis again tried to raise the issue with Ricotta by asking what promotional opportunities were available for her at Apache. Davis stated that Ricotta responded in a very mocking tone that the only way she would get a promotion was to become a lawyer. Davis then brought up the special research projects and help with reconciling outside legal fees that she had been performing for Ricotta. According to Davis, Ricotta responded that he could get an accountant to do that and he could cut her salary. Ricotta denied threatening Davis regarding her salary.

Davis also spoke with Apache's employment lawyer, David Bernal. She believed she had been passed over in receiving a promotion because of her age and told Bernal that she did not understand why she had been passed over when she was older than the other paralegals and had twice as much experience.⁴ Davis acknowledged that there was no position to which Apache could promote her but felt Apache should give her an additional title, as it had for Fielder. Around the same time she spoke with Bernal, Davis also sent an email to Ricotta asking that Apache provide in-house continuing education programs for paralegals and consider additional titles for the most experienced paralegals "as an affirmation that Apache is continually investing in and advancing its valuable and veteran paralegals." At trial, Davis stated she was thinking of three other "older" paralegals with experience similar to hers that she felt should have additional titles: Mary Heinitz, Regina Broughton-Smith, and Susie Zaccaria. Davis specifically requested that Apache consider the title "Senior Paralegal and Legal Research Specialist" for herself. Apache then gave her that title, but it did not come with an increase in salary.

Davis testified that after the promotions for Eldridge and Fielder and discussions with Ricotta regarding promotion opportunities for herself, her working relationship with Ricotta continued to deteriorate. Things felt tense and she was "walking on eggshells" around him, in contrast to their prior "great working relationship." By October 2011, Davis chose to apply for a paralegal opening in the Apache Corporate Secretary's office even though the position paid less than Davis's current position. A younger employee, Melissa Garcia, was filling the position on an interim basis and had more corporate experience than Davis. The Corporate Secretary (a woman the same age as Davis) chose to keep Garcia in the position and did not hire Davis.

Davis testified about two other incidents regarding Ricotta that occurred over the next several months. First, Ricotta replaced a retiring legal assistant with an accountant, who was younger than Davis, to handle the legal fee reconciliation that both Davis and Ricotta had performed. Second, Ricotta asked Davis to stop taking service of process papers out of another employee's tray.⁵ When she asked Ricotta why, Ricotta told her it was confusing. Davis viewed this request as Ricotta taking responsibilities away from her.

On November 12, 2012, Ricotta sent an email to all personnel in the litigation department regarding their projected schedules for 2013. Apache had a policy in effect regarding office hours and scheduling, which provided that Apache's official operating 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 Fridays. Ricotta, who traveled frequently, had allowed employees to monitor their own schedules and permitted flexibility in start and end times. Davis utilized the flexible schedule often, generally working Monday, Wednesday, and Friday beginning at 9:00 or 10:00 a.m. and staying late, often until 9:30 p.m., and Tuesday and Thursday from 9:00 a.m. to 12:30 p.m. and 2:30 p.m. to 8:00 p.m. This schedule allowed Davis to take extended breaks to transport her college-age daughter to and from her college campus.⁶ By mid-November 2012, however, Ricotta had attended a management conference where he was reminded of the office-hours policy, and he wanted to make sure his staff had committed to a schedule that complied with the policy.

In Ricotta's November 12, 2012 email, he reminded the employees of the normal Apache office hours and asked each person to submit a proposed schedule for the coming year. He stated in the email that regular business hours were preferred but he would consider requests to adjust the schedule within reason, giving as examples 6:30 a.m. to 4:30 p.m. or 8:00 a.m. to 6:00 p.m. Ricotta also stated that overtime hours would have to be approved in advance.⁷ Staff members other than Davis responded to Ricotta's email with a proposed schedule within Apache's general business hours, or with a start time no later than 8:30 a.m., thus satisfying in Ricotta's mind the corporate...