Texas Judiciary Online - HTML Opinion

^{^[1]} Appellees assert that neither = Daigle,=20 Jenkins, nor Clark had any responsibility regarding the = investigation of=20 appellees or their eventual discipline. While appellees make = a valid=20 point regarding Daigle, their assertions regarding Jenkins and = Clark are=20 supported by misleading quotations from Jones=3Ds trial testimony. This includes = quotation=20 of a question asked by appellees=3D trial counsel as opposed to = Jones=3Ds actual testimony, which was to some = degree at=20 odds with the question. As noted above, Jones testified that = Jenkins=20 aided the audit department with their investigation; Jones further = testified that Jenkins made a subsequent presentation on the = matter to=20 Daniel Sanders, President of Exxon Mobil Chemical Company. = Regarding=20 Clark, Jones testified that as his boss, Clark Ahad to agree to my = recommendation@ and Awould take responsibility for = that.@ Jones further defended = Daigle=3Ds participation in the meeting on the = grounds of=20 promoting consistency and fairness in discipline across the=20 corporation.

Appellees additionally assert that the = PowerPoint=20 presentation prepared for the September 23 teleconference was = subsequently=20 sent by email to at least five additional people within the = company. =20 Plaintiff=3Ds Exhibit 93 contains two emails, one by = Jones and=20 one by Clark, transmitting an attached document entitled = AEducational Matching Gift = Case@ to participants in the September 23 = meeting as=20 well as five other recipients within Exxon. Again, Jones = defended=20 the participation of others within Exxon on the grounds of = promoting=20 consistency and fairness in discipline across the=20 corporation.

^{^[2]} We note at the outset that in the = charge,=20 the court authorized the jury to award damages Aif any, that resulted from such=20 statements.@ Thus, the court did not limit = damages to=20 those caused by excessive publication of the = statements. =20 While Texas law has surprisingly little to offer on this topic, = the=20 court=3Ds charge clearly runs counter to the = Restatement=20 in this regard. See Restatement = (Second) of Torts=20 ' 599, cmt. b = (AThe effect of abuse = of a=20 conditional privilege is to make the publisher of the defamation = subject=20 to liability for the abuse. If the harm done by the abuse is = severable, and can be distinguished from the harm done by a part = of the=20 publisher=3Ds conduct that = would properly=20 be privileged, he is subject to liability only for the excess of = harm=20 resulting from his abuse.@). Nevertheless, neither party raises = any=20 issues related to this aspect of the charge.

^{^[3]} Exceptions to the general rule = include=20 terminations based on unlawful discrimination and retaliatory = terminations=20 violative of the Texas Whistleblower Act. = Tex,.Gov=3Dt Code '' 554.001‑.010 (Texas Whistblower = Act);=20 Tex. = Lab. Code=20 '' 21.051-.556 (Texas = Commission on Human Rights Act).

^{^[4]} Based on their defamation = finding, the jury=20 awarded economic damages to appellees for lost income and lost = employment=20 benefits suffered in the past and likely to be sustained in the=20 future. As will be discussed in the next section of the = opinion,=20 there is no evidence in the record to suggest that these damages = were=20 caused by any Exxon conduct other than the termination of=20 appellees.

^{^[5]} Furthermore, there is no evidence = that any=20 Exxon employee who heard or saw the September 23 or October 23=20 presentations published the substance of the presentations outside = the=20 company.

^{^[6]} Thus, the situation before us is = distinctly=20 different from cases wherein a plaintiff alleges two alternative = but not=20 legally prohibited causes of action such as design = defect and=20 breach of warranty in the products liability context. In that situation, a plaintiff = can recover=20 under one cause of action (assuming he or she can muster the = requisite=20 proof) without violating a prohibition against the other = claim. =20 Here, recovery of lost wages and employment benefits due to = termination=20 violates the at-will employment doctrine.

^{^[7]} Levy testified that he calculated = lost=20 earnings and benefits only for Hines because he determined that = Everett=20 suffered Ano economic damages@ of the types he was asked to=20 calculate.

^{^[8]} Interestingly, the jury found = that the=20 termination letters given to appellees were not defamatory. = It=20 should also be noted that any reasons for the terminations told = directly=20 to appellees (although they certainly may have caused mental = anguish) were=20 not necessarily defamatory, as defamation requires publication to = a third=20 party. See Granada Biosciences, Inc. v. Forbes, Inc., = 49=20 S.W.3d 610, 618 (Tex. App.CHouston [14th Dist.] 2001),=20 rev=3Dd on other grounds, 124 S.W.3d 167 (Tex. = 2003).

^{^[9]} For example, Hines testified that = being=20 fired was Adevastating@ and life changing, and that looking for = work and=20 starting over was Ahorrible.@ He further said that telling his = children=20 that he had been terminated was Ajust awful . . . just = horrible,@ that he found it hard to leave Houston, = and that=20 when he saw the December 1 letter (sent by Exxon to current and = former=20 employees who contributed to Graceland), it was like Abeing called a liar and cheat all over=20 again.@ Debra Hines testified that she = could tell=20 from her husband=3Ds voice that he was devastated at being = terminated=20 and he was stunned that Exxon would not have talked to him and=20 investigated the facts. She also said it was hard for him to = tell=20 the children.

Everett testified that he was in a state = of=20 disbelief and shock when he learned of his termination and that he = could=20 not sleep that night. He said that receiving the December 1 = letter=20 was Aextremely upsetting.@ Rosemary Everett testified that = her husband=20 was devastated when he lost his job for what he felt was unfair = reasons=20 and that it was a hardship to move. Additionally, Peter = Knorr,=20 Everett=3Ds immediate supervisor at Exxon, = testified that=20 when he told Everett about the termination, A[t]here was some emotional outburst . . = . . He=20 seemed more angry than shaken.@ There was also testimony from = several=20 witnesses that recipients of the December 1 letter would have = known that=20 it referenced appellees.

^{^[10]} Examples of the more general = evidence in=20 the record includes: Hines=3D testimony that he felt his good name = was still=20 tainted and the fact that Exxon had not retracted anything meant = he was=20 still being called a cheater; Debra Hines testimony regarding the=20 importance to her husband of having a Agood name,@ that the allegations almost led to = depression,=20 and that he was affected by the knowledge that he could not clear = his=20 name; Everett=3Ds testimony that he had been proud to = work for=20 Exxon; and Rosemary Everett=3Ds testimony that her husband=3Ds Agood name was smeared@ and that the time after he was = terminated was=20 emotionally and financially stressful.

^{^[11]} As discussed in the background = section=20 above, the presentations in question were given to small groups = comprised=20 mostly of upper management personnel. Although the evidence = suggests=20 the possibility that the Powerpoint file used during the September = 23=20 presentation was subsequently transmitted to five other Exxon = employees=20 via email, there is no evidence that either appellee learned of = the=20 occurrence or the substance of either presentation.

Appellees additionally speculate that = the=20 presentations may have been even more widely distributed based on = the fact=20 that in his testimony, Charlie Jones refused to completely rule = out the=20 possibility that some of the people to whom he distributed the=20 presentations may have then distributed the presentations to = others. =20 However, the absence of evidence that such redistribution did not = occur=20 does not constitute evidence that it did occur. Furthermore, = Jones=20 and others testified that the documents were handled pursuant to = Exxon=20 protocol intended to limit distribution of sensitive=20 materials.

^{^[12]} Because our holdings on issues = three and=20 four are dispositive of Exxon=3Ds appeal in its favor, we need not = address=20 Exxon=3Ds remaining three = issues.

^{^[13]} In their brief, appellees make no = specific=20 arguments regarding the level of proof offered by Exxon that no=20 discrimination had occurred. See = Reeves, 530 U.S. at 148;=20 Winters, 132 S.W.3d at 576; Russo, 93 S.W.3d at=20 439.

^{^[14]} In support of their assertion, = appellees=20 cite Laxton v. Gap Inc., 333 F.3d 572 (5th Circ. 2003), in = which,=20 the appellees assert, the Fifth Circuit held: Athe fact that the employer never gave = the=20 plaintiff a chance to explain her conduct or improve was = sufficient to=20 demonstrate pretext.@ We do not read the opinion so=20 narrowly. In reversing a summary judgment favoring the = employer in a=20 sex discrimination case, the Fifth Circuit pointed out that the = reasons=20 provided for the termination included demonstrably false = allegations in=20 addition to allegations of conduct that was Aarguably authorized@ by the company. The court further = noted=20 that the strength of the employee=3Ds prima facie case of sex discrimination = (which=20 included evidence of her capabilities for the job as well as = evidence of=20 her supervisor=3Ds displeasure at her pregnancy) = supported the case=20 for pretext, concluding that all of these factors together were = sufficient=20 to raise a fact issue. Additionally, Laxton is=20 distinguishable from the present case because in Laxton, = the=20 reasons for termination were primarily that she had made poor = management=20 decisions (something that could be improved upon); whereas here, = Exxon=20 alleged that appellees knowingly violated company policies and = thereby=20 received a personal benefit. The very nature of the = allegations are=20 completely different (alleged performance failures versus = allegedly=20 scheming against the company=3Ds interests).

^* Former Justice Frank C. Price = sitting by=20 = assignment.