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Click here for the full text of this decision FACTS:United Services Automobile Association (“USAA”) appeals the trial court’s judgment awarding damages to James Steven Brite in an employment discrimination lawsuit. HOLDING:Affirmed. USAA’s first challenge to the trial court’s jurisdiction � based on Brite’s pleading allegation � fails, the court determines. In Bland Ind. Sch. Dist. v. Blue, 34 S.W.3d 547 (Tex. 2000), the Texas Supreme Court appears to have recognized the sufficiency of Brite’s allegation by stating, “The plaintiff’s allegation of damages in excess of jurisdictional limits suffices to show the amount in controversy, even if damages cannot ultimately be proved at all.” USAA pleaded that Brite was engaging in fraudulent and bad faith maneuvering in order to confer jurisdiction on the trial court. Under these circumstances, Brite’s allegations continue to control unless USAA, as the party challenging jurisdiction, proves that Brite’s allegations of the amount in controversy were made fraudulently for the purpose of obtaining jurisdiction. Under the unique posture of this case, with the evidence disputed regarding whether front pay should be awarded, the court holds that the original petition invoked the trial court’s jurisdiction. The fact that the trial court later determined that reinstatement was not feasible and awarded an amount of front pay that exceeded the jurisdictional limits does not defeat the jurisdiction invoked in Brite’s original petition. At the time the original petition was filed, there was a fact question as to whether the actual amount of Brite’s damages was within the jurisdictional limit. USAA argues that there is no evidence supporting the jury’s finding that age was a motivating factor in USAA’s decision to lay off Brite, and that because of this, the award of attorneys’ fees to Brite was erroneous. The jury was presented with undisputed evidence that Brite, age 52, had been working at USAA for 24 years when he was terminated. USAA argues that Frank Thomson, who assumed the Central Region manager position, was older than Brite and that Brite’s supervisors did not know the ages of employees when they made layoff decisions. Conflicting evidence, however, was presented that Brite had been informed that the reason he was terminated was the elimination of his position. The jury was presented with evidence that the employee who assumed Thomson’s position upon Brite’s termination was seven years younger than Brite. Brite presented evidence that this employee possessed far less investigative experience and very little employment management experience. The jury also had before it evidence that the youngest managers in the unit, who had only recently been promoted to their managerial posts, were retained. Further, the jury heard evidence that Kevin Casey, who participated in deciding which managers to layoff, identified two managers approximately nine years younger than Brite as a “new manager” and a “new manager . . . key player for the future.” Legally sufficient evidence supports the jury’s apparent conclusion that a younger person replaced Brite and/or that younger persons were treated more favorably and that the reason provided by USAA for terminating Brite was both false and discriminatory. Brite was nearing the age of retirement. He had worked for USAA for twenty-four years. USAA was aware of these facts. USAA was also aware that, by laying off people before they reached the age of retirement eligibility at 55, it would save considerable costs in the areas of medical and other ongoing retiree benefits. USAA presented evidence concerning the restructuring process and the concern USAA had for its employees. However, the jury also heard evidence from executives that they were unaware of their own salaries or the amounts of their bonuses. This could certainly have called the veracity of the testimony into question. Additionally, the jury learned that, within days of Brite’s termination, USAA offered Brite another lesser position, which it could have transferred Brite into immediately, but chose not to, further supporting the theory that USAA could save on the costs associated with higher paid, long-term employees and retirees. “Given the less than forthcoming answers concerning salary bonus numbers, and USAA’s reasoning for terminating Brite, the jury was within its power to question the veracity of USAA’s evidence, and to conclude that USAA acted with malice.” The court finds that the trial court’s award of front pay is supported by legally and factually sufficient evidence. By answering “No” to Question No. 2 of the jury charge, the jury rejected USAA’s affirmative defense that it would have selected Brite for layoff even if age had not been a motivating factor. USAA contends that the jury’s finding is unsupported and contrary to the evidence. Question No. 2 queried, “Would USAA have laid off James Steven Brite even if age had not been a motivating factor?” A jury’s failure to find a given fact does not need to be supported by legally sufficient evidence, because the jury may believe or disbelieve any witness it chooses, including witnesses presented by the party having the burden of proof. Templeton v. Dreiss, 961 S.W.2d 645, 669 (Tex. App. – San Antonio 1998, pet. denied). USAA contends that the trial court erred in submitting Question No. 1 to the jury, because 1. The trial court improperly instructed the jury on the liability issue; and 2. It contained a biased and inaccurate statement of the law, and therefore failed to fairly present the disputed issue for the jury’s determination. Reading the entire charge in the context of the live pleadings and the evidence presented, the jury could not have found that USAA unlawfully terminated Brite without concluding that in addition to proving the elements of a prima facie case of discrimination, the jury believed that “USAA’s explanation for terminating Mr. Brite [was] false.” The instruction does not appear to have caused an improper judgment. In 1999′s Kolstead v. American Dental Association, the U.S. Supreme Court established an affirmative defense to punitive damages in employment discrimination cases. The court stated that “in the punitive damages context, an employer may not be vicariously liable for the discriminatory employment decisions of managerial agents where the decisions are contrary to the employer’s good faith efforts to comply with Title VII.” USAA argues that the trial court erred in refusing to include an instruction on USAA’s affirmative defense to punitive damages. The court concludes that the trial court did not abuse its discretion in refusing to include an instruction on the affirmative defense. USAA contends the trial court erred in excluding the predetermination letter to Brite from the EEOC, informing Brite that the EEOC intended to issue a determination that there was no evidence of discrimination. The court finds that the court properly exercised its discretion in concluding the probative value of the predetermination letter, because of its very nature of not being a final determination, was substantially outweighed by its prejudicial nature. OPINION:Alma L. Lopez, C.J.; Lopez, C.J., Stone and Duncan, JJ. DISSENT:Sarah B. Duncan, J. “I respectfully dissent. Brite ‘pleaded himself out of court’ when he filed a petition stating that the maximum amount of damages he claimed was $1.6 million. Accordingly, I would reverse the trial court’s judgment and dismiss the cause. Brite would then have sixty days in which to refile his suit in the district court.”

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