I believe that I was discriminated based on my age . . . in violation of the Age Discrimination in Employment Act of 1967 [ADEA] and the Texas Commission on Human Rights act, as amended. As the City correctly notes, the letter complaints do not use the phrases “disparate impact” or “facially neutral policy, ” nor any variant thereof. However, the complaints do identify a facially neutral policy—the consolidation of the Airport and Park Police and the Marshall’s service into APD. See Gomes v. Avco Corp., 964 F.2d 1330, 1334–35 (2d Cir. 1992) (concluding that reference to “eight year rule” for employment promotion sufficient to alert EEOC to potential disparate-impact claim). The complaints also identify adverse effects—the Appellees’ loss of seniority, years of service, rank, stipend pay, and overtime. Finally, the complaints at least allude to a resulting age-based disparity—asserting that younger officers with fewer years of service received pay increases, with the implication that older officers with more years of service did not.
Given that all thirty-three of the Appellees’ letter complaints identify the same facially-neutral employment policy that allegedly disproportionally injured older employees, the EEOC would reasonably be expected to investigate this case as both a disparate-treatment and disparate-impact claim. See Gomes, 964 F.2d at 1335 (noting that although EEOC complaints “most naturally support a claim of intentional discrimination, ” facts alleged also support disparate-impact claim). We conclude that the Appellees’ letter complaints sufficiently allege a disparate-impact claim such that they have exhausted their administrative remedies for those claims. See Pacheco, 448 F.3d at 788–89. Thus, the trial court had jurisdiction to hear this case and did not err in denying the City’s plea to the jurisdiction on that basis. We overrule the City’s first appellate issue.
Sufficiency of the evidence
In its second, third, and fifth issues on appeal, the City challenges the legal and factual sufficiency of the evidence to support the trial court’s judgment. Specifically, the City’s second appellate issue asserts that the Appellees failed to make a prima facie case of age-based disparate-impact discrimination. In its third appellate issue, the City argues that it established as a matter of law that its employment decisions were based on reasonable factors other than age. Finally, in its fifth appellate issue, the City claims that there is no evidence to support the trial court’s award of additional overtime pay to Appellees. We address each of these issues in turn.
Standard of review
It is well established that jurors are the sole judge of the credibility of the witnesses and the weight to be given to their testimony. See City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005). Jurors are free to credit one witness’s testimony and disbelieve another’s, and appellate courts cannot overturn a jury’s verdict merely because we might reach a different result. Id. Therefore, to give proper deference to the jury’s role as factfinder, we assume that the jury resolved all conflicts of credibility in favor of its verdict, crediting favorable evidence if a reasonable juror could, and disregarding contrary evidence if a reasonable juror could have disbelieved it. Id.
“In reviewing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the judgment . . . .” AutoZone, Inc. v. Reyes, 272 S.W.3d 588, 592 (Tex. 2008). Evidence is legally insufficient if it would not enable a reasonable and fair-minded person to reach the verdict under review. See City of Keller, 168 at 827. When an appellant challenges the legal sufficiency of the evidence supporting an adverse finding of fact for which the opposing party had the burden of proof, the appellant must demonstrate that there is no evidence, or merely a scintilla of evidence, to support the adverse finding. See id. By contrast, when an appellant attacks the legal sufficiency of an adverse finding on an issue for which he has the burden of proof, he must demonstrate that the evidence establishes that issue as a matter of law. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001) (per curiam).
In a factual-sufficiency review, appellate courts must examine the evidence that both supports and contradicts the jury’s verdict in a neutral light. See id. We still defer to the jury’s implicit determinations of credibility and weight to be given to the evidence. See Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). Therefore, when a party brings a factual-sufficiency challenge to a jury finding for which the party did not have the burden of proof, we consider and weigh all of the evidence and set aside the verdict only if the evidence that supports the finding is so weak as to make the verdict clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Pitts & Collard, L.L.P. v. Schechter, 369 S.W.3d 301, 312 (Tex. App.—Houston [14th Dist.] 2011, no pet.). Similarly, when a party attacks the factual sufficiency of an adverse finding of fact for which he has the burden of proof, he must demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence. Dow Chem., 46 S.W.3d at 242. With these standards in mind, we turn to the City’s sufficiency challenges in this case.
Prima facie case of disparate impact
In its second issue on appeal, the City asserts that the evidence is both legally and factually insufficient to support a prima facie case of age-based disparate-impact discrimination. Specifically, the City argues that (1) the Appellees failed to identify a specific employment practice; (2) the Appellees’ claims impermissibly equate years of service to age discrimination; and (3) the Appellees failed to prove causation because the evidence does not demonstrate a “significant statistical disparity” in employee pay after consolidation. Before addressing each of these claims, we will briefly discuss the elements of a disparate-impact discrimination claim.
The plaintiff has the burden of making a prima facie case of age-based disparate-impact discrimination. See Texas Parks & Wildlife Dep’t v. Dearing, 240 S.W.3d 330, 342 (Tex. App.—Austin 2007, pet. denied). To make a prima facie case, the plaintiff must “(1) isolate and identify the specific employment practice challenged; (2) demonstrate any observed statistical disparity that the practice has on the protected class; and (3) demonstrate a causal link between the identified practice and the demonstrated disparity.” Id. (citing Wards Cove Packing Co. v. Antonio, 490 U.S. 642, 655 (1989)). Plaintiffs must identify a specific employment practice rather than a generalized policy in order “to avoid the result of employers being potentially liable for the myriad of innocent causes that may lead to statistical imbalances.” Meacham v. Knolls Atomic Power Lab., 554 U.S. 84, 100 (2008) (internal quotations omitted).
Appellees identified and challenged the Consolidation Agreement as a specific employment practice. Appellees introduced ample evidence and testimony demonstrating that under the terms of the Consolidation Agreement, PSEM employees could not transfer to APD at a rank higher than that of an APD officer, their salaries were capped at the level of an APD officer with sixteen years of service, and they could include only three years of PSEM service as years of APD service. According to Appellees, these elements of the Consolidation Agreement resulted in the disparate impact alleged. Thus, the Consolidation Agreement is the specific employment practice that the Appellees allege caused the disparate impact. See Gomes, 964 F.2d at1334–35 (concluding that reference to “eight year rule” for employment promotion sufficient to alert EEOC to potential disparate-impact claim).
On appeal, the City asserts that the Consolidation Agreement is too generalized a policy to satisfy the specific-employment-practice requirement. In particular, the City claims that Corn’s analysis of the Consolidation Agreement failed to take into account the benefits all PSEM employees received as a result of their transfer to APD. Furthermore, the City claims that the Appellees’ proposed remedy of completely transferring PSEM rank and years of service to APD would have resulted in higher pay disparities between younger and older officers. However, these issues relate to whether the Appellees have sufficiently proven that the Consolidation Agreement caused a disparate impact, not whether the Consolidation Agreement is a sufficiently specific employment practice. See Meacham, 554 U.S. at 100 (explaining that purpose of specificity requirement is to ensure employers are not liable for myriad of innocent causes that may lead to statistical disparity). Thus, the City’s complaint that the Appellees failed to allege a specific employment practice is without merit. See Loffredo v. Daimler AG, 500 Fed.App’x 491, 498 (6th Cir. 2012) (concluding that securitization of retirement benefits for active employees was specific practice that had disparate impact on older retirees).
The City also asserts that employment practices based on years of service can never form the basis of an age-based disparate-impact claim, and thus the Appellees’ criticism of the Consolidation Agreement fails as a matter of law. We find this argument unpersuasive. The City relies on Hazen Paper Co. v. Biggins, in which the United States Supreme Court held that “there is no disparate treatment under the ADEA when the factor motivating the employer is some feature other than the employee’s age.” 507 U.S. 604, 609 (1993) (emphasis added). In Hazen Paper, the court held that discriminating against an employee on the basis of his years of service—although correlated to age—did not constitute age-based disparate treatment because the decision was not motivated by age. Id. However, as the opinion makes clear, its analysis was strictly limited to disparate-treatment claims, as the court had not yet “decided whether a disparate impact theory of liability is available under the ADEA.” Id.
The United States Supreme Court and this Court have since recognized that a disparate-impact theory of liability is available under the ADEA and Texas law. See Smith v. City of Jackson, 554 U.S. 228, 232 (2005); Dearing, 240 S.W.3d at 351. Given that disparate-impact claims necessarily assert that a facially neutral employment practice adversely affected older employees, it would be wholly illogical to say that employees can never bring a disparate-impact claim when the facially neutral policy relies on factors—like pension status or seniority—that are “empirically correlated with age.” See Hazen Paper, 507 U.S. at 608. An employer like the City is, of course, free to assert the affirmative defense that its use of seniority was a reasonable factor other than age. See Meacham, 554 U.S. at 102 (“[E]mployment criteria that are routinely used may be reasonable despite their adverse impact on older workers as a group.”) (internal quotations omitted). However, there is nothing in the case law to suggest that seniority is always a reasonable factor other than age for all age-based disparate-impact claims, and we decline to adopt such a per se rule.
Finally, the City asserts that Corn’s testimony failed to establish a “significant statistical disparity” between younger and older PSEM employees after their consolidation into APD. Again, the City claims that Corn’s analysis does not take into account various benefits PSEM employees received and improperly includes certain statistical outliers. Furthermore, the City raises statistical arguments—many of which were not made in the trial court—that it claims demonstrates that the disparity in pay after consolidation was either less than Corn claimed or preferable when compared to alternative methods of consolidation.
In disparate-impact cases, after identifying a specific employment practice, “causation must be proved; that is, the plaintiff must offer statistical evidence of a kind and degree sufficient to show that the practice in question has caused the” complained of disparity. Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994–95 (1988). There is no rigid formula for what constitutes a sufficient statistical disparity, but the “statistical disparities must be sufficiently substantial that they raise such an inference of causation.” Id. A plaintiff need not prove causation with scientific certainty; “rather, his or her burden is to prove [causation] by a preponderance of the evidence.” Bazermore v. Friday, 478 U.S. 385, 400 (1986).
In this case, Corn testified that because the Consolidation Agreement stripped PSEM employees of rank and much of their seniority, the average PSEM employee under 40 received a 15.61% pay increase after consolidation, but the average employee over 40 received only a 5.68% increase. This testimony was corroborated, at least in part, by Pearce, the City’s expert. Although Pearce testified that Corn’s analysis improperly included statistical outliers like PSEM officers who made less than the APD minimum, Pearce agreed with Corn that younger PSEM employees received raises that were “9.9 percentage points higher” than their older counterparts. Pearce explained that this 9.9% was the “most relevant number, ” and he continually referred to it as the number that most accurately exemplified the resulting pay disparity between younger and older PSEM employees. Pearce never testified that this figure was a statistically insignificant disparity or that the statistics failed to show that the Consolidation Agreement caused this disparity. In fact, his analysis appears to have assumed that the consolidation was the cause of the disparity in pay rates.
Even assuming for the sake of argument that the jury accepted Pearce’s analysis over Corn’s, the jury could reasonably have concluded that the 9.9 percentage-point difference in raises after the consolidation is sufficiently substantial to raise an inference of causation. See Watson, 487 U.S. at 994–95 (explaining that there is no rigid formula for demonstrating causation). Furthermore, given that the jury returned a verdict in favor of the Appellees, we assume that the jury credited Corn’s testimony over Pearce’s and thus agreed with Corn that the consolidation effectively resulted in younger PSEM employees receiving raises that were three times higher than those of older PSEM employees. Similar statistical disparities have been sufficient to demonstrate a prima facia case of causation. See, e.g., Scales v. J.C. Bradford & Co., 925 F.2d 908 (6th Cir. 1991) (concluding that evidence that males were promoted to broker representative in 2.38 years on average while women were not promoted for 4.75 years was sufficient evidence of causation). Although the City’s complaints about the alleged shortcomings in Corn’s analysis may go to the probative value of his testimony, based on the record as a whole we conclude that there is sufficient statistical evidence from which a jury could reasonably conclude that the Consolidation Agreement caused the disparate impact alleged. See Bazermore, 478 U.S. at 400 (noting that “omission of variables from a regression analysis” may affect opinion’s probative value but not its admissibility); see also McClain v. Lufkin Indus., Inc., 519 F.3d 264, 279–80 (5th Cir. 2008) (same proposition).
Reviewing the evidence in the light most favorable to the jury’s verdict, we find that there is more than a scintilla of evidence from which the jury could reasonably conclude that the Appellees made a prima facie case of age-based disparate-impact discrimination. Thus, the evidence is legally sufficient to support the jury’s finding in favor of the Appellees. See City of Keller, 168 S.W.3d at 827. Similarly, reviewing the evidence in a neutral light, we conclude that the evidence supporting the jury’s finding that the Appellees made a prima facie case of discrimination is not so weak as to clearly make the verdict wrong and manifestly unjust. Therefore, the evidence is also factually sufficient to support the jury’s finding. See Cain, 709 S.W.2d at 176. We overrule the City’s second appellate issue.
Reasonable factor other than age
In its third issue on appeal, the City asserts that the record establishes that the manner in which it placed PSEM employees on the APD pay scale was based on a reasonable factor other than age. Specifically, the City claims that its “goal of ensuring no loss in pay for PSEM officers in transition to [APD] undoubtedly established a reasonable factor other than age . . . .” Thus, according to the City, the evidence is both legally and factually insufficient to support the jury’s finding that the City failed to prove its decision was based on a reasonable factor other than age.
“[I]t is not surprising that certain employment criteria that are routinely used may be reasonable despite their adverse impact on older workers as a group.” Smith, 554 U.S. at 241. Therefore, both federal and Texas law provide that an employment policy that disparately impacts older workers may not be actionable if the challenged policy is based on a reasonable factor other than age. See id. at 239–40; Dearing, 240 S.W.3d at 355. This Court, relying on federal cases decided before the United States Supreme Court’s decision in Meacham, 554 U.S. at 94, held that a plaintiff has “the ultimate burden of proof to demonstrate that any proffered [reasonable factor other than age] was unreasonable.” Dearing, 240 S.W.3d at 355–56 (citing cases from several federal circuit courts for same proposition). However, we recognize that Meacham, 554 U.S. at 94, expressly overruled those federal cases that formed the basis of our conclusion in Dearing and established that a reasonable factor other than age is an affirmative defense for which the employer has the burden of proof. See Tex. Lab. Code § 21.122(b) (requiring courts to apply judicial interpretation of ADEA to Texas’s standard for burden of proof in age-based discrimination claims). To establish this affirmative defense, the employer has the burden to prove that (1) its decision was based on a factor other than age and (2) that factor is reasonable. Meacham, 554 U.S. at 94. Thus, in order to prevail on appeal, the City must demonstrate that the evidence is legally or factually insufficient to support the jury’s adverse finding on an issue for which the City had the burden of proof. See Dow Chem. Co., 46 S.W.3d at 242 (describing applicable standard of review).
In this case, the City asserts that its policy of ensuring that no PSEM employee’s base salary decreased after consolidation demonstrates that its employment decisions within the Consolidation Agreement were based on reasonable factors other than age. It is undisputed that the City provided all PSEM employees with lump-sum payments to ensure that their salaries were not reduced from their pre-consolidation levels for at least two years. Furthermore, it does not appear that any of the Appellees’ salaries were reduced as a result of the consolidation.
However, the City fails to explain a logical connection between reducing the Appellees’ years of service—thereby adversely affecting their opportunities for promotion and raises—and ensuring that all PSEM employees maintained their current salaries.[4] There is no evidence or testimony in the record to suggest that the reason the Consolidation Agreement stripped PSEM employees of their seniority was to ensure that all PSEM employees did not receive a reduction in pay. At most, the lump-sum payments to PSEM employees were designed to ameliorate some, but not all, of the adverse effects of consolidation. Thus, the jury could have reasonably concluded that the City failed to prove by a preponderance of the evidence that its employment decisions within the Consolidation Agreement were based on reasonable factors other than age.
Considering all of the evidence in the light most favorable to the jury’s verdict, the City has not established as a matter of law that its employment decisions were based on a reasonable factor other than age. Thus, the evidence is legally sufficient to support the jury’s adverse finding on that affirmative defense. See id.; see also Meacham, 554 U.S. at 94. Similarly, considering the evidence in a neutral light, the City has failed to demonstrate that the jury’s finding is against the great weight and preponderance of the evidence. Therefore, the evidence is factually sufficient to support the jury’s adverse finding. See Dow Chem. Co., 46 S.W.3d at 242. We overrule the City’s third appellate issue.
Overtime pay
In its fifth issue on appeal, the City asserts that the evidence is insufficient to support the trial court’s award of damages for overtime pay. Specifically, the City argues that the Appellees did not introduce any evidence relevant to the amount of overtime pay during the liability portion of trial. Thus, according to the City, the evidence is insufficient to support the trial court’s award of overtime damages.
At trial, the issue of damages was submitted to the trial court. There is nothing in the record to suggest that the City objected to this procedure.[5] As the court explained, the evidence concerning how many hours the Appellees worked, how much they were paid for that work, and how much they would have been paid had they transferred their years of service to APD was not in dispute. Thus, as the trial court noted, the amount of damages would be “a matter of math.” During the damages hearing, the Appellees introduced an exhibit titled “Damage Estimates, ” which was a document prepared by Pearce—the City’s own expert. Following the hearing, the trial court entered a final judgment in which it awarded damages for back-pay consistent with the Appellees’ exhibit.
On appeal, the City does not assert that the trial court erred in admitting the Appellees’ exhibit on damages. Nor does the City assert that the evidence is incompetent or unreliable—indeed, given that the damage estimate was prepared by the City’s expert, the City would be hard-pressed to debate its validity. Instead, the City appears to assert that because the Appellees offered no evidence concerning overtime pay during the liability portion of trial, the trial court should not have considered the issue during the damages hearing.
The City does not cite to, and we have not found, any precedent that supports the proposition that a plaintiff must introduce evidence of damages to the jury during the liability portion of trial when, as here, damages will be decided by the trial court in a separate hearing. See Paradigm Oil, Inc. v. Retamco Operating, Inc., 372 S.W.3d 177, 183–84 (Tex. 2012) (noting that in default judgment, defaulting party is deemed to admit liability and then plaintiff must introduce evidence of non-liquidated damages). Thus, the fact that the Appellees failed to introduce evidence of the amount of overtime pay during the liability portion of trial is irrelevant. At the damages hearing, the Appellees introduced competent evidence on the amount of back pay that they were owed, including overtime. This uncontested evidence is both legally and factually sufficient to support the trial court’s award of damages. The City’s fifth appellate issue is overruled.
Jury instruction on causation
In its fourth issue on appeal, the City asserts that the trial court erred in refusing to give the City’s requested jury instruction on causation. We review a trial court’s decision to submit or refuse to submit a particular jury instruction for an abuse of discretion. In re V.L.K., 24 S.W.3d 338, 341 (Tex. 2000). The trial court has broad discretion to determine necessary and proper jury instructions. Id. A trial court abuses its discretion by acting arbitrarily, unreasonably, or without consideration of guiding principles. Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996); Ganesan v. Vallabhaneni, 96 S.W.3d 345, 350 (Tex. App.—Austin 2002, pet. denied).
In this case, the first question submitted to the jury was “did the City’s decision not to include years of service in setting the pay for PSEM officers have a significantly adverse effect on persons age forty (40) and over?” At trial, the City submitted a proposed jury instruction: “Definition: ‘Significantly adverse is measured by statistical significance.’” The trial court refused to give the City’s requested instruction.
The actual jury instruction given by the trial court tracks the language of the Texas Pattern Jury Charge for age-based disparate-impact discrimination.[6] See State Bar of Texas, Texas Pattern Jury Charges-Employment PJC 107.6 (2012). Neither the pattern jury charge nor any federal or state precedent provides a separate instruction on causation for disparate-impact claims. Therefore, whether the trial court was required to instruct the jury on causation appears to be a question of first impression.
Nevertheless, regardless of whether an instruction on causation is appropriate in a disparate-impact case, we conclude that the trial court did not abuse its discretion in refusing to give the City’s proposed instruction. First, the City’s proposed instruction relates to whether there was a statistically significant disparate impact, not whether the Consolidation Agreement caused the significant disparate impact. See Dearing, 240 S.W.3d at 342 (listing specific employment practice, significant disparate impact, and causation as separate elements of disparate-impact claim). Because the City’s proffered instruction relates to a different element of a disparate-impact claim, it did not inform the trial court that the City was requesting an additional instruction on causation. Thus, it has not preserved the City’s complaint for appeal. See Tex. R. Civ. P. 278 (noting that party seeking instruction must submit instruction in writing to trial court in order to preserve complaint for appeal).
Furthermore, even if the City’s proposed jury instruction could be read to relate to causation, it misstates the standard by which causation is measured. As previously noted, there is no rigid formula for what constitutes a sufficient statistical disparity, but the “statistical disparities must be sufficiently substantial that they raise such an inference of causation.” Watson, 487 U.S. at 994–95. The City’s proffered definition eliminates the majority of this language, and merely asks the jury whether the evidence of a significant disparate impact is “statistically significant.” The City does not cite to, and we have not found, any case that uses the phrase “statistical significance” as a shorthand for the proper test of causation. Given that there is no rigid formula for when statistics demonstrate causation, the trial court could have reasonably concluded that the City’s proffered instruction was not a substantially correct statement of the law. See Tex. R. Civ. P. 278 (requiring requested instruction to correctly state law).
Therefore, we conclude that the trial court did not abuse its discretion in refusing to give the City’s requested jury instruction. See id.; see also McIntyre v. Commission for Lawyer Discipline, 247 S.W.3d 434, 444–45 (Tex. App.—Dallas 2008, pet. denied) (concluding trial court did not err in refusing to give instruction that substantially misstated law). We overrule the city’s fourth appellate issue.
CONCLUSION
Having overruled the City’s five issues on appeal, we affirm the judgment of the trial court.
Affirmed.
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