Cynthia Goodie v. Madison Barnwell Partnership, Robert Barnwell, Wanda Barnwell, and Cathy Ulmer ( 2014 )

Opinion issued November 25, 2014.
In The
Court of Appeals
For The
First District of Texas
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NO. 01-13-00487-CV
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CYNTHIA GOODIE, Appellant
V.
MADISON BARNWELL PARTNERSHIP, ROBERT BARNWELL,
WANDA BARNWELL, AND CATHY ULMER, Appellees
On Appeal from the 215th District Court
Harris County, Texas
Trial Court Case No. 2010-74865
MEMORANDUM OPINION
A former employee of a small business partnership complained of unfair
wage practices, discrimination, and retaliation in violation of Texas and federal
law. After a bench trial, the trial court ruled in favor of the partnership defendants.
On appeal, the employee contends that the trial court’s judgment must be reversed
because the court denied her right to counsel and due process of law, and it is not
supported by the evidence. We affirm.
Background
Husband and wife Robert and Wanda Barnwell formed the Madison
Barnwell Management Partnership, which owns and operates an apartment
complex in Houston. The Barnwells employed Cynthia Goodie from 2009 until
the partnership terminated her employment in May 2010.
A few weeks before she was fired, Goodie complained to the Equal
Employment Opportunity Commission, charging that the Barnwells had engaged
in wrongful discrimination and retaliation, in violation of Title VII of the Civil
Rights Act of 1964 and the Texas Commission on Human Rights Act (TCHRA).
After her termination, Goodie sued the partnership, the Barnwells individually, and
their daughter, Cathy Ulmer, asserting claims under the TCHRA, unpaid overtime
claims under the federal Fair Labor Standards Act (FLSA), and common-law tort
claims. The TCHRA retaliation claim and the FLSA overtime pay claim remained
for trial, and Goodie tried them to the bench.
The trial court found against Goodie on her claims. Among other findings
of fact and conclusions of law, the trial court determined that the partnership did
not meet the statutory definition of “employer” under either the TCHRA or the
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FLSA. It further concluded that none of the individual defendants met the
definition of “employer” under either statute.
Discussion
Right to Counsel and Due Process
Goodie identifies as issues on appeal that the trial court violated her right to
due process and to counsel, but provides no further briefing for either. Neither the
TCHRA nor the FLSA confers a right to counsel. A trial court has discretion to
appoint counsel to an indigent civil litigant in certain “exceptional cases,” where
“the public and private interests at stake are such that the administration of justice
may best be served by appointing a lawyer to represent an indigent civil litigant.”
Travelers Indem. Co. v. Mayfield, 923 S.W.2d 590, 594 (Tex. 1996). In such a
case, an indigent litigant is presumed to have a right to appointed counsel when
losing the claim might result in the loss of physical liberty. See Lassiter v. Dep’t of
Social Servs., 452 U.S. 18, 25–27, 101 S. Ct. 2153, 2159 (1981). Goodie’s claims,
on their face, do not meet this exceptional standard. See Mayfield, 923 S.W.2d at
594. As a result, the trial court did not err in failing to appoint counsel for Goodie.
Goodie raises a general issue claiming that the trial court deprived her of due
process. Her briefing, however, does not address this issue, and Goodie does not
contend that the outcome of her suit would have been different had the trial court
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proceeded differently. We therefore consider the issue waived. See TEX. R. APP.
P. 33.1.
Employment Claims
Concerning the trial court’s judgment on the merits of her TCHRA and
FLSA claims, Goodie complains that the trial court erred in failing to hold the
defendants liable and award her damages on the facts she presented in support of
those claims. She neglects, however, to address the trial court’s ruling that none of
the defendants met the statutory definitions of “employer,” and, as a result, could
not be held liable. This omission is dispositive of her appeal.
An appellant must attack all independent grounds that fully support an
adverse ruling; if the appellant fails to do so, we must affirm the trial court’s
judgment. Britton v. Tex. Dep’t of Crim. Justice, 95 S.W.3d 676, 682 (Tex.
App.—Houston [1st Dist.] 2002, no pet.). This rule applies equally to pro se
litigants as it does to licensed attorneys. See Valadez v. Avitia, 238 S.W.3d 843,
845 (Tex. App.—El Paso 2007, no pet.). Thus, if an independent ground fully
supports the complained-of judgment, but the appellant does not challenge that
independent ground, then we must accept the validity of the unchallenged
independent ground, rendering any error in another ground challenged on appeal
harmless. Britton, 95 S.W.3d at 682.
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The failure to satisfy the statutory definitions of employer as to any of the
defendants is such an independent ground. A plaintiff must prove that the
defendant is a statutory employer in order to have a right of recovery under the
TCHRA. Miles v. Lee Anderson Co., 339 S.W.3d 738, 742 (Tex. App.—Houston
[1st Dist.] 2011, no pet.). For purposes of the TCHRA, an “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.” TEX. LAB. CODE ANN. § 21.002(8)(A) West
Supp. 2014). “The ‘current year’ refers to the year of the alleged discriminatory or
retaliatory act, not the date of the judgment.” Ancira Enters., Inc. v. Fischer, 178
S.W.3d 82, 88–89 (Tex. App.—Austin 2005, no pet.).
Based on undisputed evidence, the trial court found that the partnership did
not employ 15 or more employees in each of 20 or more calendar weeks in 2009 or
2010. Further, there is no personal liability under the TCHRA against an employer
sued individually, where the employer does not meet the statutory employer
definition. Jenkins v. Guardian Indus. Corp., 16 S.W.3d 431, 439 (Tex. App.—
Waco 2000, pet. denied) (“[S]upervisors and managers are not liable in their
individual capacities for alleged acts of discrimination under the TCHRA.”); City
of Austin v. Gifford, 824 S.W.2d 735, 742 (Tex. App.—Austin 1992, no writ)
(“The [TCHRA] does not create a cause of action against supervisors or individual
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employees.”); see Prather v. Utiliquest, L.L.C., 313 F. Supp. 2d 666, 670 (S.D.
Tex. 2004); see also Grant v. Lone Star Co., 21 F.3d 649, 652 (5th Cir. 1994)
(Only “employers, not individuals acting in their individual capacity who do not
otherwise meet the definition of ‘employers,’ can be liable under [T]itle VII.”).
Similarly, under the FLSA, Goodie was required to prove that each of the
defendants employed at least two persons and was engaged in commerce or the
production of goods for commerce and had annual gross sales of at least $500,000.
See 29 U.S.C. §§ 203, 207(a). Based on the undisputed evidence, the trial court
found that neither the partnership nor any of the other defendants was engaged in
commerce or had gross annual sales of at least $500,000.
Goodie did not address these findings and conclusions, which independently
support the trial court’s take-nothing judgment on Goodie’s TCHRA and FLSA
claims. We therefore decline to consider her other arguments.
Conclusion
We hold that Goodie was not entitled to appointment of counsel. We further
hold that she waived her other challenges to the trial court’s judgment. We
therefore affirm the judgment of the trial court.
Jane Bland
Justice
Panel consists of Chief Justice Radack and Justices Bland and Huddle.
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