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Click here for the full text of this decision FACTS:Frances Fischer worked for Ancira GMC in Temple flagging repair orders for the service department. She claimed that she was subject to racial slurs, sexual advances and sexually explicitly comments as soon as she began working. Two years later, Fischer notified management that certain service technicians were misreporting certain numbers on their work invoices, which she said amounted to stealing commissions from other employees. Soon after reporting the conduct, Fischer says she was subject to bad treatment by management, treatment different from that given to other employees. She and another employee lost their right to take breaks, her personal pictures were defaced, and she was subjected to inappropriate comments. Fischer repeatedly complained to management, which sometimes tried to fix the problem, and other times allegedly did nothing. On the other hand, co-workers claimed Fischer was hard to get along with and consistently perceived slights and wrongs. Valerie Tackett, Ancira Enterprises’ human resources director, began an investigation into misuse of the corporation’s toll-free number. Fischer and a co-worker , Al Trevino, were suspended for five days in relation to this investigation. The next day, Fischer and the co-worker met with the Texas Commission on Human Rights. Trevino filed a written complaint that day, but Fischer waited another week before filing hers. Trevino was fired Nov. 12, 10 days after he filed his complaint. Fischer was also fired. Ancira Enterprises said that it found excessive unfinished work “hidden” in Fischer’s desk, though Fischer disputed the accusation. Fischer filed suit against Ancira Enterprises under the Texas Human Rights Commission Act for discrimination and retaliation. She also asserted negligent and intentional infliction of emotional distress causes of action. She later added Ancira GMC as a defendant. The jury found that Fischer was employed by both Ancira Enterprises and Ancira GMC and that both entities were liable for retaliating against Fischer in violation of the TCHRA. The jury also found, however, that Fischer had not been sexually harassed. The jury awarded her $30,000 in compensatory damages, and $75,000 in punitive damages. On appeal, Ancira Enterprises and Ancira GMC, both of which are owned by Ernesto Ancira, argue that Fischer did not prove that Ancira Enterprises is an employer subject to the TCHRA. HOLDING:Affirmed in part; reversed and rendered part. The court confirms that for an entity to qualify as an “employer” subject to liability under the TCHRA, it must fall within the statutory definition of employer, and there must be an employment relationship between the parties. The statutory definition of “employer,” includes “a person who is engaged in an industry affecting commerce and who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year.” Furthermore, the “current year” refers to the year of the alleged discriminatory or retaliatory act, not the date of the judgment. Fischer needed to meet these definitions with respect to both Ancira Enterprises and Ancira GMC in 1998 or 1999. The court notes that at trial, Tackett testified that Ancira GMC had between 30 and 35 employees. This does not show, however, that Ancira GMC had the right number of employees for each working day in each of 20 or more calendar weeks during the calendar year of the retaliation or the preceding year. By itself, this would not be enough to establish that Ancira GMC met the statutory definition. The court, however, takes note of additional evidence in the form of testimony, letters, repair orders and more that show at least 18 individual employees who worked for Ancira GMC during the requisite period. Reasonable jurors could conclude from the record that Ancira GMC employed 15 or more employees during the required time period, the court rules. As for Ancira Enterprises, Tackett testified that there were 12 company employees. Only one employee testified unequivocally that she worked for the company. Thus, there was no more than a scintilla of evidence that Ancira Enterprises had 15 or more employees for the required time period. The court rejects Fischer’s argument that Ancira Enterprises and Ancira GMC were a single employer whose employees should be aggregated. The court rules that the single employer theory, “which is akin to alter ego or piercing the corporate veil, was neither pled at trial nor submitted to the jury,” and the argument, therefore, was waived. “Having found legally insufficient evidence to support a deemed finding that Ancira Enterprises had at least fifteen employees for the required time period during 1998 or 1999, we must reverse and render a take-nothing judgment in its favor.” Because, however, legally and factually sufficient evidence supports the deemed finding with regard to Ancira GMC, the court proceeds to review the punitive damages. Noting that Ancira GMC does not challenge the jury’s finding that it retaliated against Fischer, the court notes that retaliation alone is generally insufficient to support an award of punitive damages. There was evidence that Tackett was knowledgeable regarding company anti-discrimination policies and their relationship with underlying law, and that the Team Ancira policy manual expressly prohibited retaliation against employees. This evidence would enable a reasonable juror to infer a firm belief and conviction that Tackett actually was aware of the risk that retaliating against Fischer would violate Fischer’s legal rights, yet proceeded with conscious indifference to that risk, and that retaliating objectively involved an extreme degree of risk of violating Fischer’s legal rights. Punitive damages were supported by the evidence, the court concludes. OPINION:Pemberton, J.; Smith, Puryear and Pemberton, JJ.

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