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Texas Court Upholds Retaliation Verdict Three Years After Protected Activity

Published by on December 6, 2013

The Texas Fourth Court of Appeals affirmed a jury verdict finding that an employee who was terminated due to a job elimination was unlawfully retaliated against in SAWS v. Nicolas, 04-2012-0442, (Oct. 23, 2013).  The interesting fact is that the protected activity relied upon by the Plaintiff occurred three years prior to her termination and […]

The Texas Fourth Court of Appeals affirmed a jury verdict finding that an employee who was terminated due to a job elimination was unlawfully retaliated against in SAWS v. Nicolas, 04-2012-0442, (Oct. 23, 2013).  The interesting fact is that the protected activity relied upon by the Plaintiff occurred three years prior to her termination and was part of an investigation she conducted as a human resources employee.  More after the break.

Deborah Nicolas was a human resources employee for the San Antonio Water System (“SAWS”).   In 2006, a female paralegal complained that the VP of customer service and communications/external relations department had asked her to lunch and that she felt uncomfortable.  The CEO got involved and Nicolas was asked to investigate.  Nicolas and the CEO met with the VP and the CEO told the VP to stop asking out female employees.  Nicolas said in the meeting “[Y]ou need to listen to Dave [the CEO] because what’s he’s telling you is for your own good.”

Three years later, Nicolas was placed in that VP’s chain of command.  Nicolas’ job was eliminated in a company reorganization. Nicolas sued for retaliation, alleging that she engaged in protected activity by agreeing with the CEO.   She claimed that the VP harbored a grudge, then retaliated.

In affirming the judgment for Nicolas, the Fourth Court held that the jury had sufficient evidence to conclude that Nicolas engaged in protected activity and that the three-year gap was not dispositive in concluding that retaliation did not occur.  In fact, according to the Fourth Court, the one-year period in which the VP supervised Nicholas was the relevant time frame (From May 2008 when she started reporting to the VP to May 2009 when she lost her job — not the 2006 time period when the comment was made.

Moreover, Nicolas was awarded $759,007.00 for lost future wages and benefits.  The appeals court concluded that front pay is not subject to the $300,000 damages cap in the TCHRA.

We will be watching for a future appeal in this case.

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