DIANE M. HENSON, Justice.
Appellee Thomas Williams brought suit against the Texas Department of Public Safety ("the Department") for discrimination on the basis of race and employment retaliation under the Texas Commission on Human Rights Act (TCHRA). See Tex. Lab. Code Ann. §§ 21.051-.556 (West 2006 & Supp. 2009). Following trial, the jury found that the Department had retaliated against Williams for engaging in a protected activity and awarded back pay, front pay, and compensatory damages for mental anguish. The Department appeals, arguing (1) that the evidence was insufficient to show that Williams suffered an adverse employment action, (2) that the evidence was insufficient to support the jury's awards of front and back pay, and (3) that the court abused its discretion in admitting the report of an internal affairs investigation prompted by Williams's complaints and the letter of determination Williams received from the EEOC. We affirm the judgment of the trial court.
After serving in the military during Operation Desert Storm and spending two years as a patrol officer in El Paso, Williams entered the Department's academy in 1995 and began working as an officer for the Department in October 1996.
Williams began service with GPD in January 2002 and was permanently assigned to GPD after completing an initial 90-day probationary period. Williams received positive performance reviews during his first year with GPD. The mid-term assessment of his performance through June 2002 indicates that Williams "is representing the Department of Public Safety at the highest levels of both the State and National Governments" and that he "has performed his duties in a highly professional manner." The assessment also reflects "[n]o [performance] deficiencies at this time." Williams's full-year performance evaluation at the end of 2002 noted his "highly professional manner" as well as his "positive attitude," and also indicates no performance deficiencies. He also took advantage of the abundant overtime opportunities available with GPD, earning $16,183 in overtime pay for the year.
However, by the winter of 2002, Williams had developed concerns about GPD's treatment of African-Americans and women. Specifically, Williams testified that African-Americans and women on GPD were being denied opportunities to accumulate training and overtime. In addition, Williams observed that qualified African-Americans and women who applied to GPD were not being hired due to their race or sex.
Williams testified that, after Mashburn's investigation, his overtime was cut and he was denied desirable assignments and opportunities for training. In June 2003, Williams sent two memos to Armistead. The first memo, which was also recorded as an EEO complaint alleging racial discrimination, summarized complaints of other African-American sergeants on GPD regarding lack of travel and overtime opportunities. The memo also detailed Williams's own lack of assignments involving travel and "body" duty.
After Williams submitted his memos, the number of negative write-ups and critiques he received from his supervisors increased dramatically.
In addition, Williams testified that he was given more "midnight" or "graveyard" shifts, shifts that were considered particularly undesirable due to their late hours, after he made his complaints.
On January 7, 2004, Williams was involuntarily transferred back to the narcotics division. Williams was not given a specific reason for the transfer, as he was told only that the move was made "for the betterment of the Department." However, when interviewed by a federal investigator who was considering Williams for a Secret Service position, Armistead indicated that the transfer was made due to "personality conflicts" between Armistead and Williams and because of Williams's filing of "multiple EEO and harassment [complaints] against [Armistead] and members of [GPD]."
After the transfer, Williams filed complaints with the Department's Internal Affairs division and the Equal Employment Opportunity Commission (EEOC). After receiving a right-to-sue letter from the EEOC, Williams brought suit against the Department for racial discrimination and retaliation under the TCHRA. At trial, Williams offered evidence of the impact of his transfer from GPD to the narcotics division. Williams's dress changed, from the jacket and tie he had worn during his time with GPD back to standard police attire, and instead of driving a well-appointed car provided by the government, he drove a less luxurious vehicle. He also testified that travel opportunities with the narcotics department were few and travel pay subject to stringent limits, whereas on GPD opportunities for travel were abundant and travel pay and expenses virtually unlimited. Williams testified that GPD was regarded as an elite and specialized unit within the Department, a contention the Department challenged at trial. Further, while his rank and base pay were unaffected by the transfer, the amount of money he was able to earn in overtime decreased due to lack of opportunity. While Williams made $16,813 in overtime pay in 2002 and $9,346 in 2003, after his transfer from GPD to the narcotics division his overtime pay dipped to $4,669 in 2004, $2,540 in 2005, and $84 in each of 2006 and 2007.
Regarding the precise amount of money lost by Williams due to lack of overtime opportunities after his transfer, Williams presented the testimony of Dr. Robert Glover, who testified regarding the amounts of overtime earned by other GPD employees. Glover testified that the total amount of overtime pay for GPD employees rose each year between 2004 and 2007, with the total overtime paid in 2007 reflecting a 99 percent increase over 2003. Though overtime expenditures essentially doubled during this time period, the number of eligible employees remained relatively stable, increasing only from 20 in 2003 to about 25 in 2008. Glover also examined evidence of the overtime earnings of three GPD members who joined GPD at roughly the same time as Williams. From 2004 to 2007, the low earner in the group earned an average of $20,181 in overtime per year, the middle earner earned an average of $25,381 per year, and the high earner earned an average of $34,214 per year, with a single-year high of $36,389.
At the conclusion of the trial, the jury concluded that the Department had retaliated against Williams for engaging in a protected activity. The jury awarded $128,316 in back pay for the four years and two months between Williams' transfer and the trial in March 2008, an amount translating to a yearly average of $30,192. Williams also recovered $391,485 in front pay and $100,000 for mental anguish in addition to attorneys' fees and costs. This appeal followed.
STANDARD OF REVIEW
When reviewing a finding for legal sufficiency, we must credit evidence favorable to the judgment if a reasonable fact-finder could, disregard contrary evidence unless a reasonable fact-finder could not, and reverse the fact-finder's determination only if the evidence presented in the trial court would not enable a reasonable and fair-minded fact-finder to reach the judgment under review. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We will sustain the appellants' legal-sufficiency challenges if the record reveals: (1) the complete absence of evidence of a vital fact; (2) that the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (3) that the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) that the evidence conclusively establishes the opposite of a vital fact. See id. at 810. More than a scintilla of evidence exists if the evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004).
When considering a factual-sufficiency challenge, we consider all the evidence and set aside the judgment only if it is so contrary to the overwhelming weight of the evidence that it is clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). Under either standard of review, we must be mindful that the jury as finder of fact is the sole judge of the credibility of the witnesses and the weight to be given their testimony. McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex. 1986); Raymond v. Rahme, 78 S.W.3d 552, 556 (Tex. App.-Austin 2002, no pet.). The jury may choose to believe one witness and disbelieve another, and we must not impose our own opinion to the contrary. City of Keller, 168 S.W.3d at 819.
We review a trial court's decision to admit or exclude evidence for abuse of discretion. State v. Bristol Hotel Asset Co., 65 S.W.3d 638, 647 (Tex. 2001). A trial court abuses its discretion in admitting or excluding evidence if it acts without reference to any guiding rules and principles, or if the act complained of is arbitrary and unreasonable. Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 687 (Tex. 2002). We must uphold a trial court's evidentiary ruling if there is any legitimate basis in the record to support it. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). We will not reverse a trial court for an erroneous evidentiary ruling unless the error probably caused the rendition of an improper judgment. See Tex. R. App. P. 44.1; see also Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989). A successful challenge to an evidentiary ruling usually requires the complaining party to show that the judgment turns on the particular evidence excluded or admitted. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753-54 (Tex. 1995).
Adverse Employment Action
In its first issue on appeal, the Department argues that the evidence was legally and factually insufficient to support the trial court's judgment that Williams suffered an adverse employment action. A transfer or reassignment may rise to the level of an adverse employment action. See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (noting that "the EEOC has consistently found `[r]etaliatory work assignments' to be a classic and `widely recognized' example of `forbidden retaliation'").
To support his claim that a reasonable employee would have found the transfer from GPD to narcotics materially adverse, Williams presented evidence that GPD employees have a far greater opportunity to earn overtime pay than officers in the narcotics division. In 2002, his first year with GPD, Williams earned $16,813 in overtime pay. In 2003, Williams earned $9,346 in overtime pay, despite his allegations that his overtime was cut in retaliation for his discrimination and harassment complaints. After Williams was transferred to the narcotics division, his overtime pay fell to $4,669 in 2004, $2,540 in 2005, and $84 in each of 2006 and 2007. Williams also presented evidence that his loss of overtime was due to the lack of availability of overtime in the narcotics division as compared to GPD.
Further, Williams presented evidence that GPD members dress differently, wearing jackets and ties instead of standard police uniforms, and drive nicer government vehicles than their counterparts in other divisions. In terms of the work done by GPD, one fellow GPD member called it the "most important" job in Texas. Not only do GPD personnel protect and develop a close relationship with the Texas First Family, they also come in contact with visiting dignitaries. In addition, GPD members often travel on assignment to locations such as Australia and Mexico and to events such as inaugurations and the Super Bowl while taking advantage of a generous travel expense account during such trips. These opportunities are not available in other divisions of the Department, including the narcotics division.
The Department argues that the evidence presented by Williams concerns only his subjective impressions, thereby failing to meet the objective standard set out in Burlington. The evidence that overtime pay is far more plentiful for GPD members than for officers in other divisions, however, is objective in nature. Further, the facts that GPD members dress differently than their counterparts in other divisions, drive more luxurious government vehicles, and have more opportunity to interact with high-ranking officials and travel on assignment provide objective proof of the differences between serving with GPD and serving with other divisions, such as narcotics.
The Department further argues that the transfer was not "equivalent to a demotion." Such analysis, however, relies on the standard used to evaluate adverse employment actions in cases brought under the substantive anti-discrimination provision of Title VII, under which a transfer must amount to an "ultimate employment decision" such as discharge or demotion. See McCoy v. City of Shreveport, 492 F.3d 551, 560 (5th Cir. 2007) (evaluating race and sex discrimination claims under Title VII); see also Alvarado v. Texas Rangers, 492 F.3d 605, 613 (5th Cir. 2007). Post-Burlington, however, the standard used in substantive discrimination cases is not controlling when evaluating retaliation claims. See McCoy, 492 F.3d at 560 (explaining that Burlington altered standard in retaliation context). Instead, the Burlington standard for adverse employment actions in retaliation cases, as set forth by the Supreme Court and adopted in Texas courts, is both "more lenient" and "broader than for [substantive] discrimination, in that such actions are not limited to tangible employment acts," but rather encompass any acts that might dissuade a reasonable worker from making or supporting a charge of discrimination. Johnson v. TCB Constr. Co., 334 Fed. Appx. 666, 671 (5th Cir. 2009) (citing Burlington, 548 U.S. at 67).
Under the Burlington standard, we conclude that the evidence of loss of overtime stemming from the transfer,
Awards of Back Pay and Front Pay
In its second issue on appeal, the Department argues that the evidence to support the jury's awards of back pay and front pay is legally and factually insufficient.
While a legal sufficiency inquiry ends when some evidence to support the award is found, factual sufficiency analysis also examines whether the precise amount of a jury's award is proper. Carrow, 781 S.W.2d at 695. In determining whether the amount of an award is supported by factually sufficient evidence, Texas courts have held that "[t]he jury has the discretion to award damages within the range of evidence presented at trial, so long as a rational basis exists for the jury's calculation." Mayberry v. Texas Dep't of Agric., 948 S.W.2d 312, 317 (Tex. App.-Austin 1997, writ denied).
Back pay compensates an employee for the amount of money the employee would have earned had the prohibited employment action not taken place, minus the amount the employee earned following the prohibited action. See Tex. Lab. Code Ann. § 21.258(c); West Telemarketing Corp. Outbound v. McClure, 225 S.W.3d 658, 668 (Tex. App.-El Paso 2006, pet. granted, judgm't vacated w.r.m.).
In this case, Williams testified that the amount he was able to earn in overtime pay declined precipitously after his transfer from GPD to the narcotics division. As summarized above, Williams earned $16,183 and $9,346 in overtime during his two years with GPD. After his transfer, Williams earned a total of $7,377 in overtime during four years of service with the narcotics division from 2004 through 2007. Williams and others testified that the decline in overtime was not by choice, but rather due to the lack of availability for overtime with the narcotics division (as opposed to the virtually unlimited overtime available to GPD members).
Williams also presented the expert testimony of Glover, who testified that the overall amount of overtime pay available to GPD personnel had not only remained stable but had significantly increased since Williams's departure. These increases in overtime pay occurred despite only a small bump in the number of GPD members, from 20 in 2003 to about 25 in 2008. Consequently, numerous GPD employees who had served at the same time as Williams had seen the amount they personally earned in overtime pay increase in the period following Williams's transfer. Glover also testified about the amounts earned in overtime pay by three GPD members who joined the Detail near the time that Williams did.
The testimony and exhibits offered by Williams at trial provide some evidence of lost wages and also provide a reasonable basis for estimating the proper amount of a back pay award. The evidence presented constitutes more than a scintilla, and consequently the evidence is legally sufficient to support the jury's award of back pay. See Carrow, 781 S.W.2d at 695.
The evidence presented by Williams is also factually sufficient to support the amount of back pay. As noted above, Glover testified about the overtime earnings of three GPD employees who were "similarly situated" to Williams based on when they started serving with GPD.
During the period from 2004 to 2007, Wallace earned an average of $34,214 per year, with a single-year high of $36,389. Wallace's single-year high, when prorated for the roughly 50 months that elapsed between January 7, 2004 (when Williams was reassigned) and February 25, 2008 (when the case went to trial), supports an award of up to $151,621 in back pay. See West Telemarketing, 225 S.W.3d at 668 (explaining that, in determining award for 128 weeks of back pay, "[t]he jury could have based lost earnings on Appellee's highest weekly earnings statement"). When this figure is reduced to account for the $7,377 in overtime that Williams earned during that time period, the upper end of the range drops to $144,244. See id. (subtracting offsets to determine upper end of range of options). The jury's award of $128,316 falls comfortably below this number. Accordingly, we conclude that the evidence supports a range of potential awards and the jury's actual award is within the range of options presented at trial. As the result is not so contrary to the overwhelming weight of the evidence that it is clearly wrong and unjust, the jury's award of back pay is supported by factually sufficient evidence.
The Department also challenges the legal and, as construed by this Court, factual sufficiency of the jury's award of front pay. Front pay is awarded to compensate the plaintiff for future lost wages and benefits. Giles v. General Elec. Co., 245 F.3d 474, 489 n.27 (5th Cir. 2001). While reinstatement is generally preferable to an award of front pay, front pay may be awarded in lieu of reinstatement, especially when reinstatement is not a feasible option.
In this case, the jury heard evidence that Williams was thirty-eight years old and in good physical condition. It heard that Williams had been a career law-enforcement officer after serving in the military, though he had held several different posts (including stints with the El Paso police and the highway patrol and narcotics divisions of the Department) during his approximately fifteen years working in law enforcement. It heard evidence that some GPD sergeants spend their entire careers with GPD, some staying on the Detail for more than fifteen years. The jury heard Williams's own testimony that he had sought the position with GPD in order to relocate his wife and children to Austin and maintain close proximity to them, and that he had intended to finish his career with the Department, which in his view meant working at GPD for "at least another 18 years." The jury also heard evidence that Williams had applied for a job with the federal Secret Service in the fall of 2004, when he was still a GPD member.
After hearing this evidence, the jury awarded Williams $391,485 in front pay. Under the legal sufficiency standard, there is more than a scintilla of evidence to support an award of front pay as well as a reasonable basis for calculating the proper amount. The jury could have concluded that Williams would have remained with GPD until the end of his career. See West Telemarketing, 225 S.W.3d at 668-69 (noting that employee "had testified that she had intended to continue working for [employer] until her retirement" and that "[t]he jury was entitled to believe her"). Further, the evidence of Williams's loss of overtime and the overtime earnings of other GPD employees provides a reasonable basis for the jury to calculate damages. See Pleasant, 260 S.W.3d at 559. Accordingly, the Department's challenge to the legal sufficiency of the jury's award of front pay fails.
In addition, the amount of front pay awarded was within the range of options presented at trial, and is thereby supported by factually sufficient evidence. In this case, the evidence presented at trial supports a range of awards. See id. Based on Williams's testimony, the jury could have concluded that Williams would remain with the Department until the end of his career in 18 years. The jury could also have concluded that, based on Wallace's overtime earnings, Williams would have earned up to $36,389 in overtime per year for the 18 years until his retirement, numbers that would support an award ranging up to $655,002.
The Department, however, argues that the award of front pay is impermissibly speculative. Such an argument overlooks the fact that courts have consistently held that "[f]ront pay can only be calculated through intelligent guesswork" and have recognized front pay's "speculative character by according wide latitude in its determination." Downey, 510 F.3d at 544 (quotation marks omitted). Accordingly, the evaluation of the legal and factual sufficiency of a front pay award does not hinge on whether the jury's calculations involved some speculation, but whether the jury's award is supported by more than a scintilla of evidence and falls within the range of options presented at trial. As our analysis indicates that the front pay award in this case meets these criteria, we conclude that the award is supported by the evidence.
As the awards of back and front pay are supported by legally and factually sufficient evidence, the Department's second issue on appeal is overruled.
Admissibility of Evidence
In its third issue on appeal, the Department argues that the trial court abused its discretion by admitting the report of the Department's internal investigation of sexual harassment and the determination letter Williams received from the EEOC. "Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Tex. R. Evid. 401; Reliance Steel & Aluminum Co. v. Sevcik, 267 S.W.3d 867, 871 n.8 (Tex. 2008). Trial courts may exclude relevant evidence if its probative value is substantially outweighed by its prejudicial effect. Tex. R. Evid. 403; State v. Malone Serv. Co., 829 S.W.2d 763, 767 (Tex. 1992). We uphold the trial court's evidentiary ruling if there is any legitimate basis for the ruling, Owens-Corning, 972 S.W.2d at 43, and will not reverse a trial court for an erroneous evidentiary ruling unless the error probably caused the rendition of an improper judgment. McCraw v. Maris, 828 S.W.2d 756, 757 (Tex. 1992).
The Internal Affairs Investigation
The Department argues that the trial court abused its discretion by admitting the report of the Department's internal investigation initiated by Williams's memo detailing the sexual harassment of a female Department trooper by a GPD sergeant. The Department contends that the report was not relevant to Williams's retaliation or discrimination claims. However, as the Department admits, the report provides evidence that Williams engaged in a protected activity, a necessary element for a retaliation claim under the TCHRA. See Mayberry, 948 S.W.2d at 315.
In addition, such reports may be "extremely relevant" as to the credibility of the person making the complaint and may also shed light on whether the reasons given by the employer for retaliatory action were pretextual. See Busby v. City of Orlando, 931 F.2d 764, 785 (11th Cir. 1991) (reversing trial court's decision not to admit internal affairs report as abuse of discretion). In this case, the internal affairs report corroborated the details of the sexual harassment complaint that Williams had made based on his conversation with a Department trooper. According to Williams, the trooper had told him that a GPD sergeant had made inappropriate sexual remarks to her. The Department's internal affairs report, which contains statements by the trooper herself, confirms that Williams accurately related the details of his conversation with the trooper when making his complaint. Further, the trooper's statements in the internal affairs report indicate that Armistead was mistaken when, according to his own notes, he informed one of Williams's supervisors that the trooper had indicated that she never made statements about sexual harassment to Williams.
Consequently, as the report showed both that Williams engaged in a protected activity and that Williams had been truthful when relating the trooper's experience—and had not fabricated the allegations, as suggested by Armistead's notes—we conclude that the trial court did not abuse its discretion in admitting the report into evidence.
The EEOC Determination Letter
The Department also argues that the EEOC determination letter admitted by the trial court was substantially more prejudicial than probative and therefore should not have been admitted into evidence. "EEOC determinations and findings of fact, although not binding on the trier of fact, are generally admissible as evidence in civil proceedings as probative of a claim of employment discrimination." Johnson v. Scott Fetzer Co., 124 S.W.3d 257, 263 (Tex. App.-Fort Worth 2003, pet. denied) (citing Lindsey v. Prive Corp., 161 F.3d 886, 894 (5th Cir. 1998)). Indeed, EEOC determinations are considered "presumptively admissible because they are so highly probative of discrimination that their probity outweighs any possible prejudice to defendant." EEOC v. Manville Sales Corp., 27 F.3d 1089, 1095 (5th Cir. 1994) (quoting McClure v. Mexia Indep. Sch. Dist., 750 F.2d 396, 400 (5th Cir. 1985) (citations and punctuation marks omitted)). A trial court may, however, exclude an EEOC letter that is so conclusory that it possesses very little probative value. Johnson, 124 S.W.3d at 263 (indicating the court may exclude letter that "does not outline, even summarily, the evidence upon which it relies for its conclusions").
In this case, the EEOC's determination letter summarizes its investigation into Williams's claims of discrimination and retaliation. While it includes little evidence of discrimination, the letter also states that "the Commission is unable to conclude that Charging Party was discriminated against because of his race, Black." The letter goes into much greater detail regarding Williams's retaliation claim, specifying the complaints Williams made to GPD and Williams's subsequent treatment by GPD before concluding that, "[b]ased on these analyses, it appears more likely than not that Charging Party was given a negative evaluation and removed from the Governor's Protective Detail in retaliation."
Though the Department contends that the letter was "untrustworthy and one-sided," our review of the contents of the letter indicates that the EEOC exhibited care and diligence in evaluating Williams's claims and provided evidence for its determination that Williams was likely the victim of retaliation. Consequently, we do not find the letter to be conclusory or lacking in probative value. See Johnson, 124 S.W.3d at 263 (explaining that conclusory letters should not be admitted). As the EEOC's determination letter was probative of Williams's retaliation claim without undue prejudice to the Department, we conclude that the trial court did not abuse its discretion in admitting the letter.
As the trial court did not abuse its discretion in admitting the internal affairs report or the EEOC determination letter, the Department's third point of error is overruled.
Because we find no reversible error, we affirm the judgment of the trial court.