Johnson v. Nat'l Oilwell Varco, LP

574 S.W.3d 1

Dale L. JOHNSON, Appellant

v.NATIONAL OILWELL VARCO, LP, Appellee

NO. 14-16-00440-CV

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

Opinion filed December 11, 2018

Rehearing Denied March 12, 2019

Rehearing and Rehearing En Banc Denied March 12, 2019

Victoria Lynn Plante Northington, Houston, TX, for Appellant.

Audrey Calkins, Memphis, TN, John Zavitsanos, Houston, TX, Christopher Moore, New Orleans, LA, for Appellee.

Panel consists of Justices Boyce, Jamison, and Brown.

Martha Hill Jamison, Justice Dale L. Johnson appeals from an adverse jury verdict in his race-discrimination, employment-termination case against National Oilwell Varco, LP ("NOV"). In seven issues, Johnson contends that the trial court abused its discretion in (1) denying his motion for new trial; (2) imposing time limits in the middle of trial; (3) refusing to charge the jury in keeping with a federal pattern jury instruction; (4) finding that NOV only negligently, as opposed to intentionally, destroyed video evidence; (5) failing to order a remedy for destruction of the evidence that would have restored Johnson’s ability to prove his case; (6) refusing to sanction NOV; and (7) admitting certain evidence while excluding other evidence. We affirm.

Background

In June 2013, Johnson, who is African-American, was terminated from his position as a machinist at NOV’s West Little York facility, where he had worked for almost 23 years. NOV stated that the reason for the termination was a violation of its "lock-out, tag-out" (LOTO) procedures. On June 6, Johnson was working at his machine, a Vertical Turning Center or VTC, when a maintenance employee, Henry Sierra, placed a red tag on the control panel of the machine. The tag stated "Caution Maintenance in Progress," and according to NOV, such tags were used to indicate that a machine should not be operated until the tag was removed or the operator was told to run the machine by a maintenance employee or supervisor.

At the time, Sierra needed to perform repairs on a conveyor that fed parts into the VTC. According to Johnson and other witnesses, Sierra only needed to tag the conveyor to perform the work safely, he did not need to place the tag on the control panel of the VTC. Tagging just the conveyor would have allowed Johnson to continue working. Moreover, Johnson and others stated that Sierra should have first obtained permission from a supervisor before shutting Johnson’s machine down in this manner. After Sierra placed the tag, Johnson, who was purportedly working on a rush job, closed the door of his machine and prepared it to begin operating.¹ NOV and its witnesses maintained that this was a serious breach of LOTO rules and a safety hazard that placed Pablo Amador—a maintenance worker who had begun working on the conveyor, Sierra, and potentially other employees at risk of injury. There was considerable disagreement at trial regarding whether Johnson or Sierra had violated LOTO policy and whether any alleged violation was sufficient to warrant termination.

Sierra reported Johnson’s alleged LOTO violation to Johnson’s supervisor, Ian Laing, who, after asking Johnson about the incident, reported it in an email to the machine shop manager, Kevin Evans. Subsequently, after reviewing written statements by Sierra and Amador, and purportedly viewing security video of the incident, Laing (Caucasian), Evans (Asian), and Human Resources Manager Gail Garcia (Caucasian) agreed that Johnson’s employment should be terminated. The termination was effective June 13, 2013.

Johnson thereafter filed a charge with the Equal Employment Opportunity Commission (EEOC) and the present lawsuit, alleging that race was a motivating factor in his termination. Among other things, Johnson asserted that Sierra, who is Hispanic, had a history of using a racial epithet towards Johnson, and Evans, who is Asian, had treated Johnson and another African-American machinist differently than he treated other non-African-American employees in the machine shop. In a prior lawsuit, Evans had also been accused of retaliation against an employee who had made an allegation of discrimination at a previous company where Evans had worked. Johnson further asserted that Laing also had treated him differently than Laing did other employees.

Prior to trial, it was revealed that the security video that purportedly showed the incident that led to Johnson’s termination had been destroyed. As will be discussed in more detail below, there apparently had either been a problem with copying the video onto a USB drive or it had been deleted or overwritten after being copied. As will also be discussed below, the loss of the video was the subject of multiple attempts at recovery, a spoliation claim by Johnson, and requests for sanctions. The trial court determined that NOV negligently caused the destruction of the video but declined to find that NOV intentionally destroyed the video. The trial court therefore declined to give a spoliation instruction to the jury. Although the trial court ordered NOV to pay for the attempts to recover the video, it did not otherwise sanction NOV for its conduct, and, in fact, denied all five of Johnson’s motions for sanctions, as well as one motion for sanctions filed by NOV against Johnson’s attorney.

Counsel for both sides originally told the judge that they thought the case could be tried in four days, but when examination of the first witness took longer than expected, the judge raised the issue of time limits for the remainder of the trial. The judge expressed concern that one of the jurors had prepaid vacation plans that would be jeopardized if the trial went longer than initially expected. After consultation with counsel, Johnson was given 7-8 hours to complete his case, and NOV was given 6-7 hours to complete its case. Ultimately, the court granted Johnson additional time to question at least two witnesses, but Johnson did not present all of the witnesses he had originally listed as testifying.

Also during trial, the court admitted into evidence Johnson’s EEOC charge against NOV over Johnson’s objection. NOV sought with this evidence to show that Johnson had changed or supplemented his allegations over time. Contending that NOV had thus opened the door to such evidence, Johnson sought to introduce evidence concerning how other employees had been treated by NOV under allegedly similar circumstances. NOV objected that these comparators were not sufficiently similar to support admission, and the trial court sustained the objection.

At the close of evidence, the jury was asked, among other things, whether race was a motivating factor in NOV’s decision to discharge Johnson. The jury charge included an instruction explaining what constitutes a "motivating factor." Johnson additionally requested that the charge include a "permissive-pretext" instruction. The requested instruction was pulled from the Fifth Circuit Pattern Jury Instructions and would have informed the jury that: "If you find that the reason [NOV] has given for firing is unworthy of belief, you may, but are not required to, infer that Johnson’s race was a motivating factor in [NOV]’s decision to terminate him." The trial court denied Johnson’s request. The jury then returned a 10-2 verdict favoring NOV, and the trial court entered final judgment in keeping with the verdict. The trial court denied Johnson’s motion for new trial.

Discussion

As stated above, Johnson contends that the trial court erred in (1) denying his motion for new trial; (2) imposing time limits; (3) refusing to instruct the jury on permissive pretext; (4) failing to find that NOV intentionally destroyed the video; (5) failing to order a sufficient remedy for the destruction of the video; (6) refusing to sanction NOV; and (7) admitting the EEOC charge while excluding comparator evidence. Because Johnson’s first issue merely congregates arguments made under other issues, we will address that issue last.

I. Time Limits

In his second issue, Johnson contends that the trial court erred in imposing time limits on the presentation of evidence. Johnson’s main complaints are that the limits were imposed after trial had already begun and to preserve a juror’s prepaid vacation. We conclude that Johnson failed to preserve his complaints in the trial court and, even if Johnson had preserved the issue, the trial court did not abuse its discretion by imposing time limits under the circumstances.

A. Governing Law

Pursuant to Texas Rule of Evidence 611, trial courts "should exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to: (1) make those procedures effective for determining the truth; (2) avoid wasting time; and (3) protect witnesses from harassment or undue embarrassment." Tex. R. Evid. 611(a). Moreover, every trial court has the inherent power to control the disposition of the cases on its docket "with economy of time and effort for itself, for counsel, and for litigants." Hoggett v. Brown , 971 S.W.2d 472, 495 (Tex. App.—Houston [14th Dist.] 1997, pet. denied) (quoting Landis v. N. Am. Co. , 299 U.S. 248, 254, 57 S.Ct. 163, 81 L.Ed. 153 (1936) ). "How this can best be done calls for the exercise of judgment, which must weigh competing interests and maintain an even balance." Metzger v. Sebek , 892 S.W.2d 20, 38 (Tex. App.—Houston [1st Dist.] 1994, writ denied) (quoting Landis , 299 U.S. at 254–55, 57 S.Ct. 163 ). Accordingly, the trial court’s inherent power, together with applicable rules of procedure and evidence, accord trial courts broad, but not unfettered, discretion in managing trials. State v. Gaylor Inv. Tr. P’ship , 322 S.W.3d 814, 819 (Tex. App.—Houston [14th Dist.] 2010, no pet.) ; Hoggett , 971 S.W.2d at 495 ; Metzger , 892 S.W.2d at 38.

B. Additional Background

Prior to the start of trial, counsel for both sides represented to the trial judge that the case would take four days to try. On the basis of these representations, the judge...