v.
SALVADOR REYES
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════════════
v.
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On Petition for Review from the
Court of Appeals for the Thirteenth
District of
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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
After receiving Jones’s
recommendation, the
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.
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
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 (
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.
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
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.”
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
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
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
