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Click here for the full text of this decision FACTS:Nightingale Home Health Care is in the business of providing oxygen tanks and other medical equipment to homebound patients. In February of 2002, Mariluz Arismendez began working as a customer service representative for Nightingale at its McAllen branch. McCune was the regional manager in charge of operations in Texas. From the time Arismendez began working in 2002 until February 2003, the McAllen branch operated without a branch manager. During that period, Arismendez often reported to Chris Cruz, the Corpus Christi branch manager. In November 2002, Arismendez discovered she was pregnant with her third child. She then discussed maternity leave with James Goldstein, Nightingale’s area manager for south Texas. Nightingale hired Veronica Vela as the McAllen branch manager in February 2003. Arismendez began experiencing lower abdominal pain. On March 24, 2003, she saw her physician, who prescribed bed rest and signed a release that excused her from work until her next appointment on April 7. Arismendez’s husband delivered the note to Vela at the office. McCune granted Arismendez a leave of absence until April 8. During this time, Arismendez stayed at her home in McAllen. Arismendez called Vela on a daily basis for the first week of leave to assist with any questions about her work. Arismendez also asked Vela about the short-term disability policy. Pursuant to this conversation, Jesus Sanchez, Arismendez’s co-worker, brought a disability form to Arismendez. Arismendez’s physician completed the disability form on April 2, 2003. The doctor restricted Arismendez’s physical activity until April 8, 2003. Vela instructed Arismendez’s husband to send the completed form directly to the corporate headquarters, and he complied with her instructions. On April 7, Arismendez had another doctor’s appointment. Her physician ordered two additional weeks of bed rest and signed another release that excused her from work until April 21. Once again, her husband delivered the doctor’s note to Vela at the office. Vela, however, claims that she did not receive this note. During this period of leave, Arismendez’s husband was away from home working on a job site, and Arismendez stayed at her mother’s home in Mexico to obtain help caring for her two young children. Her mother’s home did not have a telephone, but Arismendez called the office at least two times when Vela was out. During one of the calls, Arismendez heard Sanchez radio Vela and ask if she needed anything from Arismendez. Arismendez told Sanchez that she could not be reached by phone because she was staying with her mother in Reynosa, and Sanchez relayed that information to Vela. On April 21, Arismendez had a doctor’s appointment, during which he ordered 15 more days of bed rest and signed another work release. Arismendez attempted to deliver the doctor’s note to Vela at the office. Vela refused to accept the note and told her she had been terminated several weeks ago. The employee separation report was signed by Vela as the supervisor and dated April 8, 2003. The report listed the reasons for the involuntary separation were “excessive sick leave/ job abandonment.” Vela also told Arismendez that although Vela knew it was illegal to fire her because she was pregnant, Vela had a “business to run” and “could not take having a pregnant woman in the office.” On May 6, 2004, Arismendez brought a pregnancy discrimination and wrongful termination suit against Nightingale in Texas state court. Nightingale removed it to federal district court. The jury found in favor of Arismendez, awarding $26,150 in back pay damages, $10,000 in compensatory damages and $1 million in punitive damages. Nightingale objected to the entry of judgment on the plaintiff’s motion, asserting a Texas statutory cap on punitive damages. The district court reduced the punitive damage award to $200,000 pursuant to the statutory cap. Nightingale subsequently renewed its motion for judgment as a matter of law, and the district court granted the motion, entering judgment in favor of Nightingale. Arismendez appealed. HOLDING:Reversed and remanded. The Texas Commission on Human Rights Act (TCHRA), Texas Labor Code �21.001 et seq., prohibits an employer from, among other things, discharging an employee because of her gender. The TCHRA further explains that sex discrimination includes discrimination “because of or on the basis of pregnancy.” Under the Texas statute, the court noted that to establish an unlawful employment practice, Arismendez need only prove that discrimination was “a motivating factor” in the employer’s decision, rather than a “but for” cause as Title VII of the Civil Rights Act of 1964 requires. Nightingale argued that Arismendez failed to establish a prima facie case of discrimination, because she did not present evidence that she was treated less favorably than employees outside her protected class, “non-pregnant employees who missed a comparable amount of work.” But Arismendez argued that the comments Vela made while terminating her constituted direct evidence of discrimination. The court disagreed with the district court’s determination that Vela’s comments were mere stray remarks. Remarks may serve as sufficient evidence of discrimination, the court stated, if the comments are pregnancy related, proximate in time to the terminations, made by an individual with authority over the employment decision at issue and related to the employment decision at issue. The only dispute, the court stated, is whether Vela had the authority to terminate Arismendez. The court found sufficient evidence for a jury to find that Vela exerted influence over the decision to terminate Arismendez. Thus, the court concluded that the remarks made by Vela at the time of Arismendez’s termination served as direct evidence of pregnancy discrimination. In addition, the court found more than a mere scintilla of evidence to support the jury’s verdict that Arismendez’s pregnancy was a motivating factor in the employer’s decision to terminate Arismendez. The court also concluded that Nightingale did not demonstrate that it would have terminated Arismendez in the absence of discriminatory animus. The court also found that the district court correctly applied the cap found in Texas Civil Practice & Remedies Code �41.008 to remit the punitive damage award to $200,000. OPINION:Benavides, J.; Jones, C.J., and Benavides and Stewart, JJ.

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