Boxer Property Management Corporation v. Teresa R. Dehnel ( 2024 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-22-00336-CV
___________________________
BOXER PROPERTY MANAGEMENT CORPORATION, Appellant and
Appellee
V.
TERESA R. DEHNEL, Appellee and Appellant
On Appeal from the 342nd District Court
Tarrant County, Texas
Trial Court No. 342-320239-20
Before Birdwell, Womack, and Wallach, JJ.
Memorandum Opinion by Justice Birdwell
MEMORANDUM OPINION
I. Introduction
Teresa R. Dehnel sued Boxer Property Management Corporation for age and sex
discrimination and retaliation after Boxer fired her. Eleven of twelve jurors answered
“no” to the discrimination questions but found that Boxer had fired Dehnel in
retaliation for her “opposition to a discriminatory practice”—her discrimination
complaints—and awarded to her $87,000 in back pay, $32,000 in noneconomic
damages, and $250,000 in exemplary damages. The trial court incorporated the jury’s
findings into its judgment and added an award to Dehnel of $173,250 in attorney’s fees,
plus conditional appellate attorney’s fees. Both parties have appealed.
In five issues, Boxer complains that there is legally insufficient evidence to
support the jury’s retaliation finding; that the exemplary-damages award should be
reversed because the verdict was not unanimous; that the back pay award should be
reversed because the evidence established that Dehnel intended to voluntarily quit the
day she was fired; that there is legally insufficient evidence of the nature, duration, or
severity of Dehnel’s mental anguish or any other noneconomic damages; and that
Dehnel’s attorney’s-fee award is unreasonable. In the sole issue in her cross-appeal,
Dehnel asserts that the attorney’s-fee award is insufficient when her evidence supported
an award in the $519,997 to $866,662.50 range.
Because the evidence is legally sufficient to support the jury’s retaliation finding
and noneconomic damages award, and because the parties did not try by consent
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whether Dehnel’s back pay award was precluded, we overrule Boxer’s first, third, and
fourth issues and affirm these portions of the trial court’s judgment. Based on Oscar
Renda Contracting, Inc. v. Bruce, 689 S.W.3d 305 (Tex. 2024), which issued while this case
was pending, we sustain Boxer’s second issue, reverse this portion of the judgment, and
render a take-nothing judgment on exemplary damages. We also sustain Boxer’s fifth
issue, reverse the $173,250 attorney’s-fee award, and remand it for recalculation in light
of the exemplary-damages disposition. Based on our resolution of Boxer’s fifth issue,
we do not reach Dehnel’s sole issue in her cross-appeal.
II. Background
The evidence presented at trial was voluminous. In the interest of brevity, we
will focus on the specific incidents and context that were highlighted during trial,
particularly the A/C incident, Dehnel’s computer and phone problems, the major-client
loss, the office switch, the F-Dex incident, Dehnel’s discrimination complaints, the
MeetingBroker incident, and Dehnel’s termination.
A. Before the A/C incident (April 30, 2018–October 1, 2018)
Dehnel, who had begun a second career in hotel sales in 2008, started working
at Boxer’s Holiday Inn (the hotel)1 on April 30, 2018, when she was in her early fifties.
At that time, Dehnel and her supervisor Cara Hayes, the hotel’s director of sales (DOS),
were the entire sales team because 60% of the hotel’s business came from one client
1
The hotel was in the Intercontinental Hotels Group (IHG) franchise.
3
(an airline) and an additional 10% came from other airlines. At that time, Dehnel and
Hayes engaged in “free selling,” meaning they could sell any market segment, but
Dehnel was hired primarily to “fill in the gap from the airlines” and then to increase
catering-and-event-space sales.
Hayes spent a lot of time working out of state at Boxer’s other properties. She
also ran interference for Dehnel with Bette Gill, Boxer’s sixty-year-old corporate
director of sales, marketing, and revenue management, to whom each hotel’s DOS
reported. Hayes stated that Gill, who died of cancer before trial, had disliked Dehnel,
although Hayes did not know why.
Mike Owen, the hotel’s general manager (GM) since 2014, noted that in the
summer of 2018, Gill, who had been concerned with the hotel’s continuing decline in
food-and-beverage revenue, had some issue with Dehnel over what she was selling or
how much she was selling. To further complicate matters, during this time, Boxer was
trying to sell off the hotel.
According to Owen, Hayes was responsible for providing performance goals to
Dehnel, but Hayes testified that there was nothing specific or in writing as to expected
sales. Carmen Castillo, who became DOS after Hayes, testified that when Hayes was
her supervisor, she never gave Castillo a specific monthly sales goal, but Tammy Levy,
Dehnel’s predecessor, testified that Hayes had given her sales goals.
When Hayes was out of state, Dehnel notified Owen when she had to leave early
for doctor’s appointments, when she needed to look after her mother or her pet, or
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when there was trouble with the hotel’s air conditioning. During that time, their
relationship appeared to be positive—on August 3, 2018, Dehnel emailed Owen to
invite him to join her and Haley Allen, 2 who also worked in the sales office, for lunch.
Dehnel did so again two weeks later. However, things began to change in October 2018.
B. The A/C incident
In an email exchange between 3:15 p.m. and 3:24 p.m. on October 1, 2018,
Dehnel asked Owen about weekend air-conditioning access, stating that it would be
helpful if catering staff could change the temperature upon a guest’s request. Owen
replied, “The engineer on duty needs to have ability,” and Dehnel replied that the
engineer did but that a guest had to wait while catering staff found one. She requested
a key for catering staff, asking, “It is just a key[,] right?” Owen replied, “No. It is access
to website. Have whoever is here have the engineer on duty[’s] [B]oxer phone number.”
Dehnel responded, “They did have it . . . it was the amount of time it took to have it
changed. Trying to avoid future guest frustrations.” This exchange then led to an in-
person disagreement (the A/C incident).
Dehnel testified that she had gone to see Owen because she did not think he had
understood her email. As she tried to explain the problem to him, “he came around his
desk at [her] like he was going to attack [her], but he was screaming at [her] telling [her],
[‘D]on’t . . . question me and don’t give me any lip, do what I’m telling you to do.[’]”
2
Because Haley Allen’s last name is the same as another employee’s first name,
we will refer to her by her first name to avoid confusion.
5
Dehnel said that Haley saw what happened and that Jheromy Jackson, a front desk
supervisor, saw the encounter’s end.
After she calmed down, Dehnel called Hayes and told her about the encounter.
Hayes advised her to contact Boxer’s human resources (HR), but Dehnel declined to
do so, telling Hayes, “I’m not going to do that, it’s a new job, I don’t want to lose my
job.” Dehnel stated that she had been shocked at Owen’s reaction to what was “just an
air-conditioning question.” Hayes described Dehnel as being “very upset” after the A/C
incident.
Haley recalled the incident differently. Haley stated that Dehnel had been angry
about something and “was kind of mumbling under her breath” before she went into
Owen’s office. Haley stated,
Then [Dehnel] sat down in his office, they were talking, and she was
getting mad and they were -- I don’t know. She was, like, raising her voice.
So I could hear more of it, but I wasn’t sure what they were saying. And
then both of them stood up, and then [Owen] went around the desk to
leave on that one side door towards the front office, and then she left on
her -- like the glass door. So she left and then she was pretty mad and went
to her own desk.
Haley testified that Owen had appeared frustrated and annoyed with Dehnel while
Dehnel had “seemed really mad” and that Jackson had not been present.
Jackson, on the other hand, testified that he entered “at the end of it” and saw
Owen come around the corner of his desk and come out of his office towards Dehnel
“very aggressively.” It shocked him because he had never seen Owen behave like that
before, and then Owen said something like “[T]hat’s it, that’s all, I ain’t dealing with
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this anymore.” Jackson said that Dehnel had been shaking and upset and that he stayed
with her while she calmed down. Jackson said that after the A/C incident, Dehnel and
Owen’s relationship “definitely got strained.” Jackson further testified that after the
A/C incident, he heard Owen say on more than one occasion that he would like to
shake the hand of the man who would put up with Dehnel. Dehnel testified that Owen
often said this to her, but she did not identify when.
Based on their continued exchange of messages, however, Owen and Dehnel
were still able to work together after the A/C incident. In January 2019, when Dehnel
asked Owen if she could leave early to see an old friend passing through, he replied,
“[S]ure.” And in February 2019, when she asked him to turn on the air conditioning,
he did so.
Other former employees gave positive testimony about Owen. Kristi Meck, who
worked at the hotel from June 2019 to January 2020, and whose workstation had been
very close to Owen’s, testified that she could hear if Owen had someone in his office
and that she never heard him yell, raise his voice, or scream at anyone in his office.
Levy, Dehnel’s predecessor, testified that she had never seen Owen yell, bully, or treat
women less favorably than men when she worked at the hotel. At the time of the trial,
Levy was working elsewhere as a regional hotel sales director, a position she had secured
with Owen’s recommendation.
Kimberli Adame, who had worked as a front desk agent, testified that she had
never witnessed Owen yell, scream, bully people, or threaten to fire anyone but that she
7
had heard allegations at the time from Dehnel that he was not treating her right and
was yelling at her. Adame stated that she saw Dehnel frequently argue with Owen and
that it struck her as odd because a subordinate was supposed to respect what the
manager said and not scream back at him. Adame said that while she saw Dehnel get
angry or frustrated with Owen once, she never saw Owen become overly heated, angry,
or frustrated or behave disrespectfully toward Dehnel. Adame said that Dehnel’s
frustration stemmed from her removal from the sales office next to Owen and her
placement in the administration office with Karie Harding, a reservation sales
coordinator, at the end of May 2019.
Shelly Campbell, Owen’s direct supervisor and Boxer’s operations director,
testified that she had never seen Owen yell, scream, bully, or belittle Dehnel or anyone
else at the hotel and that she had never heard such a complaint from anyone besides
Dehnel. Harding, however, testified that Owen had some hearing loss and raised his
voice with everyone—women and men, young and old.
C. Ongoing computer and phone problems
Boxer had its own system of internal computer-based communications—Boxer
Central—which was run by its information-technology (IT) team in India; employees
were supposed to use Boxer “cases,” which were like emails with tracking numbers.
Boxer’s IT team had also developed a sales-tracking system, Central Sales, to replace
Delphi, a system that interfaced directly with IHG’s property management system.
Central Sales required separate data entry, and the hotel’s salespeople were supposed to
8
enter their numbers into Central Sales weekly. Hayes was working “on tweaking” some
of Central Sales’s filters when Gill took over the project and ordered Hayes to focus on
sales.
Dehnel experienced frequent computer problems. On August 1, 2018, she
emailed Owen about one, stating,
All my documents files are GONE. I have sent a [Boxer] case to Zang
Pham[, Boxer’s helpdesk operator in Dallas 3] per [Hayes]. I went to open
a[n] email for the Forecast report and my computer both of them went
black. When I got back from lunch all of my documents were gone . . . .
Contracts, everything . . . . I’m freaking. [Hayes] said there is something
going on but I hope [Pham] can fix it. . . . Will you call him since you know
him?
Harding testified about Dehnel’s disappearing documents, stating,
I know that when [Dehnel] put information into the system, it would be
gone, she would lose all of her information. And I sat and watched her do
it. In between five, 10 minutes that I would have here and there, I would
be able to watch her put something in, but she’s like, I don’t know what’s
wrong with my computer. And I know that she put in . . . [Boxer] Cases
. . . for IT to check on her computer, and from -- the IT department said
that she needed a new hard drive because that one she had was too old.
Jackson testified that everyone at the hotel had computer problems but that Dehnel’s
seemed to be consistent and that she “had people in there quite a bit trying to figure
out what was going on.” He also testified that if he had computer problems, his were
fixed that day and that other employees could get a new computer on a day’s notice.
Dehnel described Pham as “a tech guy.”
3
9
In June 2019, a day after Dehnel mentioned more computer problems, Owen
contacted Pham at 7:57 a.m. about her Boxer case on those problems, noting that “[i]t
impacts sales.” Pham informed Owen that Boxer’s server had been upgraded that week,
which had caused some issues. On July 2, 2019, after Owen emailed Dehnel to ask
about a projector, Dehnel told him that she would give it to him if he would call Pham
and ask him to fix her computer.
Dehnel was not the only employee to experience disappearing documents and
other computer problems, but her computer issues were more consistent and not as
frequently resolved. At the beginning of July 2019, in an email to Owen in which Betty
Jean Larson, Boxer’s chief HR officer, was copied, another sales employee, Allen
Shahan, whose employment with the hotel began after Dehnel’s and was terminated
before Dehnel’s, noted, “Oddly enough every trace of the argument we had via email
is missing . . . .”
In addition to computer problems, Dehnel also experienced phone problems,
and both Jackson and Harding testified about problems with Dehnel’s office phone.
The hotel used an old phone switch system, and there were only two people in North
Texas who could repair it; Boxer had a “special deal” with one of them, Harshard Patel.
On August 1, 2019—around a week after her first discrimination complaint—Dehnel
sent Pham a Boxer case about her continued phone and computer issues and then
copied her message into an email to Larson. She noted to Pham that Owen had placed
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two calls “to a Mr. Patel over the past few months” about the phone with no resolution, 4
and that the problem with her computer was that it was outdated and the only solution
was to update it.
Dehnel then sent an email to Larson to let her know that she had copied her on
the message to Pham and to explain that she had sent the message directly to Pham
instead of Owen “in hopes that [she] could receive assistance.” Dehnel stated, “I am a
bit disabled in not having a working office phone, skype, cellular and computer issues.
Although it appears my computer has been working much better as of late, not perfect
but much better—I want to ensure that it will continue to perform.” Dehnel expressed
her confidence that Pham could fix anything but that she was “not sure if he has the
resources he needs to get [her] office phone working.” Larson replied the next morning,
stating, “I’m sure he can get it working. Let me know if you have any difficulties.”
D. Other employees
At the end of December 2018, Hayes gave Dehnel an “exceeds expectations”
performance review for her first six months. Hayes noted that Dehnel needed to
“commit to using [Boxer] cases more frequently to communicate with staff” but also
noted that Dehnel completed high-quality work and was dependable, reliable, and
punctual. She also noted, “[Dehnel] is not afraid to ask questions or to express ideas
and suggestions.” Levy, Dehnel’s predecessor, had not scored as highly on her January–
Owen testified that he became frustrated with Patel’s response time because
4
phone repairs were taking too long.
11
December 2017 performance evaluation, and Hayes had ultimately fired Levy for
sending Boxer’s proprietary budget information to Levy’s personal email address. Hayes
stated that she had been the decisionmaker in Levy’s termination.
Castillo, who had previously worked at the hotel as a front desk agent, was
rehired in January 2019 as a corporate sales manager. Castillo had left the hotel to
become DOS at a nearby Holiday Inn Express for ten or eleven months after obtaining
the required IHG certificate for that position. After speaking with Boxer’s president
Michael Pariza at a Christmas party, Castillo interviewed with Owen and Hayes. Boxer
had hired Dehnel at an annual salary of $48,000; Castillo was rehired at an annual salary
of $54,000. Castillo spoke Spanish, and Dehnel did not.
E. Major-client loss
In April 2019, the month in which Dehnel’s father died, the hotel was notified
that within 30 days, its primary client, Envoy, was going to stop “hard blocking”
(guaranteed payment) of 150 rooms per night in the 243-room hotel—the hotel’s main
revenue source. The next day, Owen requested the sales department’s figures and
forwarded them to Gill, who questioned their accuracy. Gill noted to Owen and Hayes
that the hotel had “fallen extremely short [of] budget for many months now” and that
the budget shortfall’s “major component [was] the lack of sales contribution and
dependency on the airlines to carry the hotel.”
Owen and Gill decided to segment sales and to “flood the sales department, get
people deployed[,] and give them tasks to go after.” However, the record reflects that
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their goals were hampered by the approvals process, which involved Gill, and about
which Dehnel and Hayes both complained, referring to “out-of-house handling” and
“gross[] delay[s] under the current[] restrictions.” Pariza, Boxer’s president, stepped in
at one point to tell Dehnel to “immediately involve [him] if there is business stuck in a
holding pattern somewhere or any fear of losing business.”
In an email at the end of April, Gill expressed her concern to Dehnel and Owen
about the low catering numbers, which were far short of what the hotel needed. Owen
replied, “I am aware. Will take me a week to get my feet on the ground and clock is
ticking on underperformance for all.”
Meanwhile, Brian Hill, IHG’s franchise performance support manager, and
David Brown, another IHG employee, tried to help the hotel with recommendations
and various techniques to improve bookings. At the end of May, Owen was given a
reminder to set up two presentations showcasing the hotel to the IHG Central
Reservations team in Jamaica in August; he decided to send Castillo and Paula Gaitan,
who had returned to the hotel at the same time as Castillo and who was being promoted
to sales.
F. The office switch
On May 28, Owen told Dehnel and Harding to exchange offices with Katrina
Griffin, the assistant GM, and Gaitan. Griffin and Gaitan had worked in the
administration office, where Harding and Dehnel were being relocated from the sales
office. Their computers were moved with them. Owen also sent out an email to all
13
employees about “Changing Times and Roles.” Included in this email was information
about the upcoming business loss and Hayes’s resignation. Owen’s email stated, in
pertinent part,
Everyone is aware that we will see a substantial reduction in airline
business . . . beginning June 1st.
Because of these changes, we must change also. [Hayes] will be
leaving us at the end of this week.[5] . . . The decision has been made for
me to oversee the sales effort for Boxer upon her departure. We are
currently restructuring the sales department and will be adding more staff
to this area. Our goal is to replace our loss in airline business with more
business from all segments. I want to share immediate plans with all of
you:
. . . Owen-Sales. I will be spending the majority of my time at the
hotel, but some at [headquarters] and on sales calls with sales team.
[Griffin]-will be in charge of all hotel operations outside of sales
department. . . .
[Castillo]-will be selling corporate LNR and assist me in running overall
sales team[.] [Emphasis added.]
[Gaitan]-will continue in her current role[] but begin learning sales
from [Castillo.]
[Shahan]-corporate group sales/base business[.]
....
[Dehnel]-will be in charge of catering sales/meeting services[.]
[Harding]-will be learning catering sales/meeting services and
supporting [Dehnel].
Hayes resigned because she was moved from DOS to a position on par with
5
Dehnel and Castillo.
14
I will be having individual conversations with each of you on this
email to explain my expectations during these changes. We will adapt. We
will have fun. We will be successful.
Dehnel replied to all, “Sounds Great! Let’s do this !!!!!”
According to Dehnel, around this time, Owen told her that Griffin, the assistant
GM, would be running the banquet event order (BEO) meetings. Hayes testified that
she did not see Dehnel at two BEO meetings before May 31 and that when she asked
Owen about it, he told her, “This is the way it is, this is how it’s going to be” and that
he “didn’t want any more drama.” Harding testified that before the office switch, when
she had tried to report an HR concern to Owen, he had accused her of starting drama,
and she stated that she had heard him talk about “female drama” all the time. Dehnel
testified that she had overheard Owen tell Shahan “about how he liked to hire younger
women because they were moldable, they didn’t have any opinions[,] and they didn’t
give any lip action.”
Around the same time, Dehnel started seeing a counselor to help with her grief
after her father’s death. In her counseling intake, she stated, as to her job, that she
enjoyed the work but not the “micro managing, the threats to fire staff on a regular
basis.” A few days later, on June 7, Owen sent Dehnel a lunchtime message to see if
she wanted “half of [his] vegan bowl,” and she accepted.
Two weeks later, on the evening of June 21, Dehnel informed Owen that they
needed to discuss her new assignments and workload. She stated,
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We need to have a discussion, please. [Castillo] advised me, just today, 6-
21-2019—that you had said I would be the one to put in their catering
bookings, cases and contracts etc.
There is no way I can manage doing that for two other people as
well as myself and still meet the expectations of prospecting and bookings
of my own. That is triple the work for me, and ½ the work for 2 others. I
am already putting in early mornings, late evenings[,] and weekends.
I would like to meet Monday to review this requirement that I just
found out about today.
A few minutes later, she sent him another email to once more advise him that she had
experienced computer issues and had sent in a Boxer case.
In response to Dehnel’s initial email, Owen told her that he had reviewed the
hotel’s May profit-and-loss statement and that her assignments were part of his
segmentation plan, explaining,
Year to date we are falling 45% short of budget in catering. We are
averaging $4K per month in banquet food. That is $133 a day.
My goal is to have rooms sales managers book rooms and catering
book catering. Rooms will be handing business to you that will help you
make your numbers. It is done to hold individual sales members
accountable for their goals. These are not team goals, they are individual.
We should review why you are putting in all the extra hours, but catering
food is falling so short. . . . I moved [Harding] in with you to learn and
support you, because of her load reduction with Envoy. There has to be
something I am not understanding.
Dehnel replied that Harding was still working full time on Envoy, and she offered to
show Owen “all that is involved from cradle to grave on any one individual booking,”
which she said took an inordinate amount of time, “[u]nless[] the process for all sales
are not the same[,] which then we would need to look at that as well.”
16
Fourteen minutes after that response to Owen’s email, Dehnel sent an addendum
to express her confusion about how bookings were being counted, stating, in pertinent
part, “The last we, or rather I[6] was told it was not an individual goal but a group goal.
All team members need to have clarification on what they are ‘individually’ responsible
for in both bookings and in managing the data of their accounts . . . .”
Owen replied to Dehnel’s “individual goals” email the next morning, reminding
her that she had been hired as a catering manager. He stated,
You were hired as a Catering Manager, so of course your primary
responsibility is for catering revenue. I will take into account lodging revenue you
have booked, but I want to be clear with all sales team members that the expectation is
they achieve revenue in the area they were hired to do so. [Emphasis added.]
He told her that Boxer’s standards applied to everyone equally and stated, “If anyone
on this sales team has an issue with a Boxer Standard for Sales, they should fill out a
case with the issue and forward to me.”
Owen replied to Dehnel’s “cradle-to-grave” email a few minutes later, stating
that he had put Harding in the same office with her so that Harding could provide
support to her, and he reminded Dehnel to put emails about processes and
responsibilities into Boxer cases. Owen stated, “Going forward, if you have any
questions or concerns, place in a case and send to me. It is how the system is designed
to function.”
6
Owen testified that before July 2019, he could sense resistance from Dehnel
from her comments like, “[T]hat’s not how [Hayes] does it.” He stated, “It felt like she
was trying to tell me how we should be doing it . . . .”
17
At the end of June, Dehnel sent to Owen her list of confirmed and expected
business through year’s end, showing one new booking in July and one in September.
Owen testified that, assuming Dehnel’s numbers were correct, absent Dex (discussed
below), her numbers would still have been red flags. He stated that in June 2019, he
told Dehnel several times to get her Central Sales and profit-and-loss numbers up and
to put her information into Central Sales. Dehnel testified that at the end of June, she
was removed or excluded from the daily NETMA7 meetings. She claimed that Owen
told her at first that she could go to the Wednesday NETMA meetings but later told
her that there was no reason for her to go at all. Dehnel stated that without the NETMA
meetings, she did not know what was going on inside the hotel.
On July 10, 2019, the day after the F-Dex incident described below, Owen did
not include Dehnel on an email about a VIP guest from Davaco Corporation that
began, “It is critical that this information is passed along to all of those who
possibly come into contact with this guest.” Owen sent the email about the guest—
who would have a two-week stay—to Griffin, Jackson, Castillo, Gaitan, Harding, and
Meck, as well as the hotel’s restaurant manager, chief maintenance engineer, and
housekeeping manager. 8 Owen’s email contained specific instructions for the guest’s
7
NETMA was an acronym for “Nobody Ever Tells Me Anything.”
8
Owen testified that Dehnel was not included on the email because there was no
catering expectation for the guest’s visit.
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transportation, room service, and housekeeping. He made Castillo the guest’s direct
contact during the stay and stated that he wanted her to join him and the guest for a
breakfast, a dinner, or a drink as they tried to win the Davaco contract.9
Dehnel testified that she had become isolated not only physically in the
administration office but also socially in that if someone went in to talk with her, Griffin
would go in, ask that person to leave, and then ask that person what they had talked
about.
G. The F-Dex Incident
In April 2019, Dehnel worked to book DexYP Media, which had previously been
a hotel client and which sought to book a block of rooms—but no catering or meeting
room rental—for four dates that summer with an anticipated total booking revenue of
$68,400. The Dex proposal was approved in May 2019 after some debate. In the Dex
Boxer case in which Dehnel, Gill, Hayes, and Owen interacted, Campbell, Owen’s
supervisor, added the following note: “We have a standard. The standard should be
followed. . . . If there are any revisions to be made or ANYTHING additional needed
to close this matter, please address accordingly and let’s all move forward please.”
On June 18, 2019, Owen asked Dehnel if Dex had sent its rooming list, and she
replied that she had sent it to him. He asked her to come see him. The same day, at her
counseling appointment during lunch, Dehnel told her counselor that there had been
In a July 25, 2019 email to Pariza, Owen reported that Castillo and Gaitan would
9
be taking the guest to a “nice dinner tonight.”
19
cuts at work “and [that] she could lose her job.” Owen scheduled a “sales blitz” the
following week, but Dehnel advised him that she could not attend it because she had
Dex scheduled June 25–28, as well as a therapy appointment on June 26, and a hotel
client on-site June 27–28. Dehnel commented to him in her email, “Maybe more notice
than a few days would be helpful for future.”
On July 9, Dehnel created a Boxer case to which she attached the rooming list
for Dex’s July 17 and July 22 reservations. When Dex’s room block was dropped
because of a late rooming list, according to Dehnel, Owen went into the office that
Dehnel and Harding shared and said, “F[---] Dex,” and “I don’t care about Dex,” in a
loud and intimidating way (the F-Dex incident).
Harding confirmed the F-Dex incident but said that the dropped-room situation
was resolved within thirty minutes. Owen testified that while he had said “F Dex,” he
did not say it the way Dehnel and Harding said that he did. Dehnel’s counsel stipulated
that Owen had a reason to be very angry and frustrated about the room snafu when he
said, “F Dex.” 10
10
Owen testified that Dex had been a problem client in the past and then again
when Boxer had to write off around $37,000—over half the anticipated contract
amount—when Dex did not fill its block (attrition). Owen asked Dehnel about the
attrition in a Boxer case on September 4. When Dehnel tried to loop Zain Syed, Boxer’s
controller, and Pariza into the discussion a week later, Campbell responded to her,
stating,
Please go see [Owen] right now and discuss any of your concerns. This is
something that does not require [Pariza] nor [Syed] to be involved. These
20
H. Events leading up to Dehnel’s first discrimination complaint
On July 2, 2019, Castillo sent an email to Dehnel and others about a seminar that
she had scheduled for the hotel’s ballroom on July 13. In her reply the next morning,
Dehnel told Castillo that Castillo would have to move part of the seminar because of
double-booking. Dehnel chastised her, stating, “I have been requesting copies of your
[Booking Event Orders] for the 2 meetings you have for the past 3 weeks. . . . It is
imperative that communication and sharing of information is provided to avoid any
potential conflicts.” In an email a few minutes later, Dehnel added that Castillo should
be the one to manage the event because Castillo booked it. Castillo told Dehnel, “I will
take care of my meetings, please do not worry.”
On July 12, Castillo responded to Dehnel’s July 3 email about communication to
reiterate that she would take care of her meetings. Dehnel responded, “Let’s remove
your animosity from the equation and focus on the job(s) at hand. The defensive
responses are completely unnecessary and have no merit as I have done nothing less
than try to help you.” Owen concluded the Dehnel–Castillo email chain by instructing
are standard hotel procedural matters that your [GM] has the ability to
resolve or guide you through. . . .
[Owen] – please take this from here.
Owen responded in the Boxer case that he had met with Dehnel and stated, “There is
no document that shows ‘attrition’ was waived, but according to [Dehnel], that was the
understanding the client had. No attrition has been billed. I will get with [Pariza] to
discuss.”
21
them to not send any more emails to each other over the weekend. He told them, “I
am going to set up a meeting with all 3 of us and have Shelly [Campbell] attend.”
Two days later, Dehnel complained to Owen about Castillo and stated that she
welcomed a meeting with Campbell and had “printed all corresponding documentation
showing [Dehnel’s] well-intended long term efforts to assist [Castillo] in the catering
steps for success.” Dehnel indicated that she wanted to discuss at the meeting her
efforts in reestablishing lost business like Dex and the “mandate to award current and
future lodging bookings to [Castillo]” because it removed sales from her bottom line
and increased Castillo’s. Owen replied that he would arrange a meeting with Campbell
as soon as he could.
On the morning of July 15—the date of the meeting with Campbell—Dehnel
sent Larson a request for a confidential meeting because she was “not comfortable in
further discussion with [her] immediate supervisor due to the history of aggressive
behavior—one in particular being the catalyst for [her] to keep [her] physical distance
from him as much as possible.” Larson replied that she was happy to talk with Dehnel
but would not be available until the end of the week.
A few hours later, just after 3 p.m., Owen emailed Dehnel about Campbell’s
arrival. Dehnel replied, “I requested a meeting with HR before sitting down due to the
nature of what has and is transpiring. I would request a one on one with [Campbell]
22
might serve everyone involved a fair opportunity to discuss their side.” Dehnel
surreptitiously recorded the meeting with Owen and Campbell on her phone. 11
During the meeting, Dehnel “regurgitated . . . everything that had transpired,
[her] concerns and such,” including her perception of Owen as aggressive. She gave
specific examples—the A/C incident and the F-Dex incident—and identified Jackson
and Haley as A/C incident witnesses and Harding as the F-Dex incident witness.
Dehnel also claimed that Owen frequently threatened to fire people. Owen testified
that he learned during the meeting that Dehnel had been upset about switching offices
and said that he had offered to move her back, stating that he told her, “[I]t will be six
people in here, or something like that, but if you want to move back, I’ll move you back
into the office.”
That evening, Dehnel sent Campbell an email containing the emails surrounding
her dispute with Castillo and reiterating her complaints about Owen, stating that she
had tried to stand up for herself at the meeting and noting, “Truth be told, it is grossly
embarrassing for me especially at my age as it all touches on a juvenile[-]type
experience.” On July 16, Campbell thanked Dehnel for her email and told her that she
had passed the information along to HR; she copied Larson on the message.
Along with forwarding Dehnel’s post-meeting email on July 16, Campbell
summarized for Larson her impressions from the meeting, stating,
Although the recording was transcribed, it was not admitted into evidence.
11
23
It was honestly very confusing what [Dehnel] was really upset about.[12]
She claims that “everyone” thinks that [Owen] is aggressive. I asked her
who everyone is, and she said to just ask the front desk. I again asked who
as it wasn’t constructive to just generalize. She finally said ok ask . . .
[Jackson, Harding], and Haley. I haven’t spoken to them yet but will if you
think I should. She brought up that [Owen] jumped up and was aggressive
with her the week she first started. Asked her why she didn’t report it and
she said it was because she didn’t want to lose her job. She said [Castillo]
wasn’t being cooperative and wrote something in red in an email last week.
It is a lot of disconnected incidents. She didn’t send me original
emails but copied them in below. Even in the emails below that she
copied, I really don’t get what was upsetting. Sounds like there are process
issues to work out on site, and sounds like [Owen] can get heated when
he is frustrated, but I have never seen him be aggressive. She very much
painted a victimized picture yesterday[,] but I didn’t see evidence to
support it. She brought up that she had experiences with aggressive men
in her past and that [Owen’s] reactions scared her.
I reinforced that if she has a question for anyone on site or feels
like a system or process is failing, that she should put it in a case and assign
it to [Owen]. She also seemed confused by what an open door policy is. I
told her it meant she could call anyone in HR, me, [Pariza,] etc[.] anytime
if she felt something was not being handled properly.
Owen also emailed Larson, stating,
Last week [Dehnel] got into a disagreement with [Castillo]. . . . In a
conversation with [Dehnel], she began to state that I was also a part of the
problem. She said the following:
• I fire people for no reason[.]
• That when she first started, that I came out from behind my desk
and got in her face and started yelling.
12
Campbell testified that as to Dehnel’s complaints in the meeting, “It seemed to
be a lot of just interpersonal, site-level bickering . . . .” She added that “part of the
problem is the lack of use of [Boxer’s] system. So the information really couldn’t ever
be tracked or even identified to substantiate what [Dehnel] was saying.”
24
• I am physically aggressive toward women.
• She is currently seeing a counselor because of this job[.]
• Boxer has no open-door policy for addressing issues[.]
When she said these things, I told her she was welcome to contact
HR and I would arrange a meeting with her and [Campbell]. [Campbell]
came over yesterday and sat with us both. After an hour, [Dehnel] then
sat with [Castillo] and [m]yself. [Castillo] and [Dehnel] apologized to each
other. [Campbell] told her to contact HR if she feels she has an issue.
My thoughts. [Dehnel] is achieving a little under 50% of her sales
goal. I have dedicated almost all of my time since [Hayes] left to sales.
[13]
[Dehnel] has been resistant to what I am trying to accomplish in the
restructure of the department. About 3 weeks ago she had an encounter
with [Castillo]. . . . I am hopeful our sit down yesterday resolves, but
[Campbell] asked that I email you.
At Dehnel’s July 16 noon counseling appointment, she reported that she had
confronted Owen—her boss—in front of Campbell—his boss—and that she felt good
about how she had handled it but feared retribution and job loss. Dehnel testified,
“Apparently, [Larson] sent the [July 15] information over to [Owen],” and then he called
her into his office on July 16 after lunch “and pretty much gave [her] a good chewing.”
Dehnel stated that Owen told her that if she had a problem, she needed to deal with
him directly and that after that point, Owen “started really coming down on [her,] saying
[her] numbers weren’t where they needed to be.” Owen testified that he did not recall
13
Larson testified that she did not independently investigate Dehnel’s sales goal
and that she had assumed Owen’s information was accurate.
25
when he found out that Dehnel had emailed Larson and did not recall calling Dehnel
into his office the next day and having a conversation with her.
In an email to Larson confirming their upcoming meeting on July 19, Dehnel
told Larson that she wanted “a verbal discussion to start the grievance process as [she]
trust[ed] that [Larson’s] investigation will generate a solution and remove the fear of
retaliation[14] and being singled out currently and in the future.” Dehnel added, “I want
to follow all the necessary[ ]required steps and ensure my paperwork is organized for
easy viewing, back-up, and witnesses in support of my grievance claim.”
I. Dehnel’s first discrimination complaint
The record contains Dehnel’s July 22 follow-up email to Larson after their July
19 meeting, along with Dehnel’s accompanying selection of annotated emails. Dehnel
blamed Owen’s having separated the sales team for the Castillo miscommunication and
thanked Larson “for taking the action needed to find and implement a resolution and
respecting the confidentially [sic] to the possibility of backlash.” She included her June
21 overwork email,15 Owen’s June 22 response about individual goals,16 her June 22
Dehnel testified at trial that the alleged retaliation was only as to Owen’s actions
14
and not as to Gill, Larson, Campbell, Hayes, or Castillo.
In her annotation, Dehnel noted that after Shahan told Owen that he wanted a
15
“secretary-admin” so that he could focus on selling and not data entry, Dehnel had been
advised that Owen planned for her “to do all data input for all the sales team members,
plus [her] own.”
In her annotation, Dehnel complained that Owen had not been counting her
16
lodging bookings and told her that she was failing to “meet ‘her numbers’ (whatever
26
cradle-to-grave email, and Owen’s June 23 response about catering sales as her primary
responsibility. She also asserted that she had not been treated fairly in comparison to
how Owen treated Castillo and Gaitan, allowing them a flexible schedule, and noting
that Castillo “is now the DOS or acting DOS.”17
Dehnel also bulleted the following complaints 18:
• [Owen] moved me away from the Sales team into the administration
room immediately after hearing of [Hayes’s] departure.
o [Owen] has made reference on several occasions that there is no
longer any female drama since [Hayes] left and has [al]luded to
the fact that I create drama just like [Hayes] did. This is
unjustified, not true and unprofessional to continue making
slang remarks about [Hayes] or me.
• I am no longer included or invited to attend any sales meetings.
• I have been removed from attending our daily NETMA meetings . . . .
I was told I could attend on Wednesday afternoon only.
• I am forced to scramble to get information and to give information.
• [Owen] moved [Griffin] and [Gaitan] into the sale[s] office. [Owen]
made the statement that it was easier to mold the younger women than
it was the older ones. I assume this is one of the reasons he moved me.
• [Shahan] was not fired due to lack of productivity—he was fired after
[Owen] called him into his office about some emails [Shahan] had sent
those may now be).” Dehnel further stated that Castillo had advised her “a few weeks
ago” that what she had on the books was not being loaded. And she directed Larson to
Owen’s statement that he would “[t]ake into account the lodging revenue [Dehnel had]
already booked.”
17
At trial, Dehnel testified that after the July 15 meeting, Castillo became her
boss. The record reflects that Castillo was made DOS effective July 31. Owen testified
that promoting Castillo was decided between him, Gill, and IHG’s Brown, whose
approval was required.
18
We have removed Dehnel’s emphases to improve readability.
27
[to Owen] over the weekend.[19] As is the norm, a shouting match
ensued and [Owen] fired [Shahan] for that.
o (1). I am singled out because of my age, as it appears. [Emphasis added.]
o (2) I am a seasoned “older gal” who can have an opinion and
knows the business. I was a DOS and Operations Manager for
12 years—I started in the industry with no experience in sales
or hospitality . . . . but I had a knack and I have been highly
successful. YtY revenue increase for a straight 12 years.
o (3). I believe [Owen] also moved me so that I would not be in
the loop of what IS being offered/executed with the other sales
personnel, that is NOT offered or applied equally for myself or
other staff.
It is my firm belief that [Owen] has been [and] is singling me
out by placing me into a position that is destine[d] to fail at meeting a
bottom[-]line rev[enue] requirement. He can then fire me and/or work
at pushing me to a point where I have no choice but to quit. I have
been dedicated, worked hard and certain[ly] do not deserve this
treatment from him.
Dehnel also complained that her office phone had not worked since the office
switch, causing her to “miss 99% of the business calls that come in,” and she
complained about her slow computer that “forces an extra 2 hours at minimum to [her]
work day.” She stated that Harding had received an additional computer screen in less
than a week after asking Owen for one and that Pham told Dehnel that her computer’s
Shahan’s June 30 email to Owen had the subject line “90 days.” Among other
19
statements in his rambling email, Shahan asked Owen not to degrade him or humiliate
him “with the no bookings.” He told Owen,
I am one of the best sales directors in our industry and I do not need you
to make[ m]e think I can’t sell. . . . I do not understand what is going on
and there is a big chance that one day you will have to answer under oath
about the last 3 months.
Owen forwarded the email to Larson on July 1.
28
hard drive needed to be updated. She concluded the seven-page email by identifying
the A/C incident, witnessed by Haley and Jackson, and an incident involving a
coworker (Lamar)20 who had physically attacked Adame but had kept his job, and then
she stated,
As we discussed in our phone meeting, this is only a portion of what I
have endured. The endless shouting, age discrimination, cursing, threats to
fire me, fire others and physical aggression have/are common place. I
took an opportunity to draw a line with [Owen] on Friday[,] July 12th. I
called his bluff-threat tactic if you will, to call [Campbell] for sit down with
[Owen], [Castillo,] and I. When [Campbell] arrived I spoke candidly and honestly
to her about much of what you and I have reviewed.[21]—[Castillo] was not present
in the meeting. [Emphases added.]
Larson testified that she had reached out to IT after Dehnel’s emails to try to
help with the computer and phone issues and that, to protect both employees, “We
suggested that there always be a witness in the room whenever she met with [Owen],
to have [Griffin] or [Campbell] or someone in the room, so that she would be more
comfortable speaking to [Owen].”
Dehnel testified that between August and September, Owen was neither
respectful nor professional with her and that she was frequently called into his office
for discussions. She stated,
He was usually angry with me about something. He . . . started having
[Griffin] as a witness. They were -- it was very -- I was tired from it. I was
exhausted. It was unnecessary, and it was just like berating me for things
Lamar’s last name was not identified in the record.
20
Dehnel did not specify whether she had mentioned age or gender
21
discrimination to Campbell during that conversation.
29
that just weren’t necessary. And it was embarrassing, it was humiliating.
There’s a glass, people in there can see that I’m being called into his office
on a regular basis. I didn’t like that.
Jackson, whose employment Boxer terminated in October 2019, corroborated her
testimony, stating that during Dehnel’s last two months at the hotel, he frequently saw
her in Owen’s office.
On August 1, Owen and Gill exchanged emails about a new corporate sales
manager’s August 5 start date. Owen asked Gill to think about the following week for
some online training, stating, “I think it is important we do this by the book.[] I want
to emphasize accountability to all. I want [Dehnel] included.”22 Owen assigned a Boxer
case to Dehnel that day with her August budget revenue responsibility. He testified that
after the July 15 meeting, he put in an email proof that he was giving her specific
numbers.23
On August 15, Owen asked Dehnel in a Boxer case to verify that her projected
revenue from August 14 through December 31 was accurate at $21,077. He then sent
Larson an email with a link to that Boxer case. Larson replied to Owen’s email, “Okay,
I looked at it (and I’ve looked at the others you have sent me as well). What is the
22
Dehnel’s August 1 counseling notes do not indicate any work problems.
Instead, they state, “She is dealing with stress from [her father’s] probate case and
dealing with heart issues. Her doctor is aware of the situation and she is being seen by
a cardiologist.” On September 16, Castillo approved Dehnel’s leave request for a
September 19 cardiologist appointment.
23
Dehnel testified that August was the first time she had received a target.
30
problem with this one?” Owen replied that Syed, Boxer’s controller, was asking for sales
pace and that Dehnel’s sales goal “from now until the end of the year is approximately
$81,000. She is showing $21,000 definite. It makes her pace roughly 25% of her goal.
We discuss with [Syed] each month to forecast if the hotel will hit the budgeted
numbers. I am verifying if her numbers are accurate.”
In her response, Dehnel told Owen that her estimated bookings would be
$40,067.37. Owen replied a few minutes later, stating, “Send me the report from the
system where you are getting these numbers.” Dehnel replied that she kept her own
log. Owen then gave Dehnel specific instructions, stating,
I need you to do the following today:
1. Click on “F[ACTS]”, then “Hotel”, then “Active Hotel Opportunity”.
Tell me if you see you[r] name as a sales manager? This is where the
screenshot that I have attached to this case comes from. This is
information that I have to review with [Pariza and Syed] today. You can
see from the attached spreadsheet that you have activity in the system.
You simply follow the same process for putting all information in the
system. If some does not appear, you must place a Boxer Case with the
issue to [Castillo]. Having accurate information in the system is how the
sales team performance is measured.
2. Have you gone back in the system and changed the revenue numbers
for past groups to actual pickup for the numbers you have placed in this
case?
3. I need you to copy me on the case where [Hayes] instructed you to use
a manual system for tracking business the wa[y] you are currently doing.
I’ll need to share this with Corporate when I turn these[] numbers in
today.
Dehnel responded three days later, on August 19, after her approved vacation time.
31
J. Dehnel’s second discrimination complaint
Dehnel sent Larson an email on August 19 with a link to a Boxer case, an account
of her job difficulties, paperwork from the August 15 Boxer case about her projected
revenue, and some of the same emails she had already sent to her: the June 21 overwork
email, the June 22 individual-goals email, and the same age- and gender-discrimination
complaints she had raised in her July 22 email. Dehnel complained,
I wanted to provide the link of correspondence and just a small portion
of information for my file as it is still an uneasy environment and grossly
embarrassing for me but I have continued to do my job at the best level I
can. Please advise if I need to resend this in a Case. I am concerned about
confidential[ity] and [back]lash.
Below is a response to a case from [Owen]. I just want to make sure
it is validated that I have and had always provided my revenue
numbers . . . . I am also attaching a[n] email that [Owen] sent out to the
staff regarding DAVACO but for some reason I was not included or it
did not make it to my inbox or maybe it was inadvertently trashed but I
have looked for it and not able to find it. I only knew of it because it was
tacked up on the wall in the kitchen area.
. . . I took the initiative in the beginning to help [Owen] understand
the system as well as providing to him revenue numbers. I have continued
to do my u[t]most in securing business and accurate data against the daily
struggle of being placed away from the sales team interactions and sales
meetings.[24] [Castillo and Gaitan] have been in Jamaica for the past week
and [Castillo] is having surgery today. [Owen] does not communicate with
me at all except in a few cases (like the one attached) . . . .
In addition, [in] our correspondence on 8/2/2019 you ask[ed] that
I provide an update if I was not able to get resolution. I wasn’t, so I took
the initiative to help myself as best I could as noted below.
24
In August 2019, Dehnel reported to her counselor that she felt isolated at work
and that she had begun looking for a new job.
32
The office phone was never repaired ([Owen] and [Castillo] both
were in the know it was not working). I finally took the initiative to do
what I could for myself and move my work[]station over to [Harding’s]
old desk. I requested and personally informed the front desk and [Gaitan]
to update the extension at that desk so I could hopefully begin to receive
business calls and opportunities once again. . . .
As you know, [Owen] removed my attendance from NETMA and
I have not been included in any Sales Meetings as of today. Even so, I
have continued to take a respect[ful] approach to all that [Castillo] and
[Owen] have request[ed] of me. My data is detailed and always has been.
However, there is always a variance of guessing in what we/I am
supposed to do or not do in not wasting [time] or disturbing [Owen].
Please see one of the emails below stating that 80% of questions can be
asked during NETMA (which I am to attend 1 day a week on Wednesday
afternoons only—not sure when the other daily meetings take place now
or if they even do) the rest can go to him in a “simple email”—this is one
reason I steer away from the cases so as to not upset the apple cart but
again it is a guessing game to do it or not do it.
At her counseling appointment that day, Dehnel told her counselor that she
continued to be harassed at work, had received no support from HR, and was still
looking for another job. She also discussed with her counselor going to the Equal
Employment Opportunity Commission (EEOC). 25
25
At her September 9 appointment, Dehnel told her counselor that she had made
a plan to change jobs, had taken out a home loan, and planned to take three months off
to train for a real estate license, to “deal with [a] legal case,” and to care for her mother.
Dehnel testified that she had taken out the loan so that she could quit because she had
not found another job and wanted out of the hotel business. At her September 16
appointment, Dehnel told her counselor that the loan had gone through. She also told
her counselor that she was “resigning in 9 days. She has a hard time going to work now
and [Owen] is still yelling, but [she] has more confidence since [she] plans to leave.” In
December 2019, Dehnel filed her EEOC complaint. She filed her original petition in
September 2020, and trial began in February 2022.
33
On September 4, Owen emailed Campbell, stating, “I am suggesting you might
consider yourself accessing [Dehnel’s] email. I am concerned she could be sending
company documents to a personal email account over the past 90 days.” 26 Campbell
forwarded the email to Pariza, stating,
I am going to let [Larson] know [what] I am doing fyi. We have had issues
with [Dehnel] recently and [Larson] was involved.[27] I met with her myself and
observed some concerns. She tends to keep emails and then cut and paste
segments to suit her objectives. She made some claims that I don’t believe
were true. [Emphasis added.]
On September 11, Larson emailed Pham, “Please provide me with the email box
of Teresa Dehnel immediately.” Ten minutes later, Larson received full access to
Dehnel’s email.
K. The MeetingBroker incident
MeetingBroker was a third-party clearinghouse for bookings and requests for
proposals (RFPs). In April 2019, Dehnel noted to Castillo that the standard operating
procedure for a MeetingBroker lead was to “send to [Gill] before a quote/offer can be
made. – (Too much time – will not produce)[.]” In June 2019, Dehnel tried to upload
26
The record shows that Dehnel had been sending to her personal email address
information that included her emails about the Castillo situation in July and the Dex
attrition and MeetingBroker situations in September.
27
In addition to the discrimination complaints, Larson was also involved in
Dehnel’s September 2019 dispute about overtime and personal leave. It is unclear from
the record whether Campbell was aware of the timesheet dispute, so we have not gone
into it.
34
information into MeetingBroker several times without success and complained to
Castillo and Owen.
On July 23, Dehnel received an RFP from MeetingBroker. Castillo attempted to
assign this task to Dehnel on August 1, and Dehnel replied the next morning, “This
request is duplicate work. I proposed this and have been working with [the client] since
July 25th. We are both receiving the same data in [M]eeting[B]roker. . . . It is not
necessary for you to assign to me as I review [M]eeting[B]roker daily.” However,
Dehnel testified that in June or July 2019, Castillo had replaced her as MeetingBroker
administrator.
On August 12, Dehnel sent a Boxer case to Castillo in which she complained
that she was no longer able to access MeetingBroker. Castillo responded two minutes
later, stating, “Let me check, I have not done anything yet because [Gill] is the only
Admin[.]” Four hours later, Castillo asked Dehnel whether she was still experiencing
MeetingBroker issues. The next morning, Dehnel replied to Castillo, stating, “No, I can
pull up the events[,] just not anything new at all coming in.”
On August 27, Castillo asked Dehnel for help with MeetingBroker. Dehnel
replied, “I wonder if mine is even working[;] I haven’t gotten anything since last week.”
Dehnel added a few minutes later, “I have no leads or access to your leads. . . . I wonder
if something isn’t wrong on their end. But if you are receiving and I am not then there
is a[n] issue on my end as well.” Eight minutes later, Castillo told Dehnel, “I already
fixed it[.] I just received one and it was rooms only.”
35
On August 29, Castillo received a new MeetingBroker RFP and forwarded it to
Dehnel. The next day, Dehnel sent a Boxer case to Owen, complaining that she had
not been receiving MeetingBroker leads, stating,
Yesterday [Castillo] inquired if I had responded to a lead you had
distributed. It would now be a few days old and I have not received any
information on said lead.
The Meeting[]Broker Leads are no longer visible to me and my
understanding is the leads are now being routed directly to you to be
redistributed out for handling.
Owen replied that all leads were being sent to sales@boxerresorts.com “of which all
sales managers should be on distribution” and that he would check on it. Dehnel told
him, “I am unable to respond to the RFP sent via email. The RFP is still not showing
up in my Meeting[]Broker account . . . . [N]ot under any titles and nothing under
reassigned.” Castillo subsequently printed out the MeetingBroker RFP for Dehnel and
told her that she would call MeetingBroker.
On September 6, a MeetingBroker account manager emailed Griffin, the hotel’s
assistant GM, to let her know that bids were due within fourteen days for a project with
a final September 20 bid date. Griffin forwarded the email to the overall sales email
address, sales@boxerresorts.com. Griffin told them that Gill had “asked that all RFP
notices be emailed to the generic sales email.”
On September 12, MeetingBroker asked Dehnel for a status update. Dehnel then
emailed Theresa Par at IHG, forwarding to her an error message she had received from
MeetingBroker and stating, “My apologies, but I no longer have direct access to respond
36
to business opportunities. A change . . . was made in the process and the request[s] go
directly to the DOS or GM who then re-distributes to the sales staff or is worked by
the DOS.”
On September 23, Brown from IHG emailed Owen and Castillo to ask for a
groups-and-meetings status update that day. Castillo forwarded Brown’s email to
Dehnel and asked her, “Have you received any of these leads through
Meeting[]Broker?” Dehnel replied, “No, once my direct access was removed, I have no
longer been able to access Meeting[]Broker or receive any notification for RFP’s. You
were going to call Meeting[]Broker a few weeks ago, I think was last we spoke about
it.” She bulleted, “No access to Meeting[]Broker” and “No notification any longer from
Meeting[]Broker” and copied both Owen and Brown.
Castillo replied to Dehnel that Dehnel’s access had not been removed and stated,
“Please let me know what error or message you are getting that says your access has
been denied, I will get it fixed today.” Dehnel responded, “It is the same error as we
looked at together the last time. ‘Access denied’ no access unless you send like you did
the last time. Nothing coming at all for emails.” The next day, Castillo called
MeetingBroker for help, and Dehnel was able to access the system. Owen testified that
Castillo confirmed with MeetingBroker that Dehnel’s access had not been removed and
that MeetingBroker told Castillo that Gill was the only system administrator. Gill, as
the MeetingBroker system administrator, issued passwords and granted or removed
access.
37
L. Dehnel’s termination and its aftermath
On September 24, at 6:15 a.m., Brown emailed Dehnel and Castillo, copied
Owen, and asked, “Why would your Catering Manager not have access?”28 At 9:57 a.m.,
Owen forwarded Brown’s query to Larson and copied Campbell. To that email, Owen
added the following,
I am hopeful we can have the next meeting with [Dehnel]. The email
below is where [Castillo] was asking [her] had she received a lead through
Meeting[]Broker (software IHG uses for leads). Instead of just answering
[Castillo’s] question, [Dehnel] replied and copied . . . Brown of IHG. She
makes the statement that she no longer has access to Meeting[]Broker.
Her access was never restricted or removed.[29]
Here are the issues I am having:
1. Her budgeted revenue since June has been 52k. She has produced 22K.
58% shortfall from budget for last 90 days.
2. I cannot communicate with her because she is argumentative. The times
I have tried having [Griffin] or [Castillo] sit in the meeting, she gets up
and walks out saying she cannot handle this.
3. She sends cases to . . . Pariza without affording her Supervisors of the
opportunity to solve. She is now sending comments to IHG that are not
true.
28
Owen testified that pulling IHG into the internal discussion was significant
because he, Pariza, and Gill had pressured IHG for more help. He noted that Dehnel’s
bringing IHG in “might appear to IHG like we weren’t even doing basic functions.”
Campbell testified that “to have someone from our staff reach out to [IHG] direct
about what is really a site-level, interpersonal system issue, was just very inappropriate
across the line.”
Campbell testified that she would have taken Owen’s word for Dehnel’s access
29
not having been restricted or removed because she could not have known whether
Dehnel could pull up the leads from the system.
38
I believe her actions are to deflect responsibility from her lack of
production.
A minute later, at 9:58 a.m., Campbell replied to Owen and Larson, stating, “Oh
no. That was highly inappropriate. We need to let her go soon. This is becoming very
dysfunctional.”
Larson replied to Campbell’s email at 10:20 a.m., stating, “Let’s try to discuss
today—I would be fine with releasing her[30] as I feel she is a very disruptive employee
and wants to have everything go her way.[31] When it doesn’t, she becomes angry or
accusatory—not a good situation at all.”
At 11:48 a.m., Larson wrote to Campbell, “I talked with [Owen] this morning
[and] . . . [w]e decided to try to have a conference call tomorrow morning and decide
what to do about [Dehnel].” Four minutes later, Campbell replied to Larson and Owen,
“Sure[.]”
On September 25, Dehnel had her counseling appointment at 1 p.m. The
counselor noted,
30
Larson testified that when she received Owen’s email, her understanding of
what he wanted was to meet with her, Campbell, and Dehnel to talk about what was
going on and that between her receipt of his email at 9:57 a.m. and her response at
10:20 a.m., she had received no indication from Owen that he wanted to terminate
Dehnel’s employment.
31
Larson testified that the information she had about Dehnel’s being disruptive
were all the emails Dehnel had sent to her as well as information from Owen and
Campbell.
39
She has got [the] loan money. She has [a] girls[’] trip and then [will] see
friend Tracy. She is planning to get her motorcycle license. Will train to
be realtor. She is giving her notice this week and plans to go without
insurance for a[ ]while until she is employed or can afford to buy it. . . .
She said she was doing well and was ready to terminate now.
At 3:24 p.m., Owen copied Campbell on his email to Larson in which he stated,
“[Griffin] and I terminated [Dehnel]. Once we had done so, she set the attached letter
on my desk.” Dehnel’s letter was dated September 25, and Owen forwarded it to Larson
and Campbell with his email. In the letter, 32 Dehnel stated that she was submitting her
resignation and expressed her disappointment with Boxer’s post-Hayes management,
referencing the “history of repeated bullying, aggression, vilifying staff, singling-out,
[and] blaming staff for spiraling business failures” and their effects, which prevented
“loyal, dedicated, revenue[-]producing employee(s) from doing their job[s].”
At 4:20 p.m., Dehnel sent Larson an email from her personal email address,
entitled “Discharged from Position,” to which she attached the resignation letter she
had given Owen after her termination. In the email, Dehnel stated,
I was discharged from my position today due to “performance” was the
reason given. Of course I know better than that, it was because I stood up
for myself and did the right thing. But non[e]-the-less I have known for
quite some time that I was being singled out and the ultimate goal from
GM was to fire me. But with that, I still implemented my best to do my
job with the small amount of resources that I had been left to me in the
room I was placed in.
My discharge came mid-afternoon today on 9/25/2019 from . . .
Owen and [Griffin]. I am happy to accept and move on from that
32
We have removed Dehnel’s italics and different font sizes for readability.
40
environment. I have attached the letter I had intended on providing to
you and [Owen] at end of day today.
I provided my original to [Owen] after he terminated me.
At 8:35 p.m., Dehnel sent an email from her personal email account to Boxer’s
owners. In this message, she recounted as a “handful of endless episodes that continue
to take place under the current management” the Lamar–Adame attack and Shahan’s
dispute with Bell Helicopter, which had required an apology from Boxer to the City of
Bedford but had not resulted in Shahan’s termination even though he “made no
revenue contribution.” 33 She then complained,34
I was terminated from my position today. The reason given was
performance! However, that is not at all the case. I provided revenue gains
for the hotel from time of my inception . . . . Sir, I was terminated because
I finally had enough and stood up for myself a few month[s] ago. It has
been nothing less than a beat down from that point on.
In her email, Dehnel recounted the A/C incident, her complaint to HR about it, and
the backlash from Owen, listing the following:
• Early on I was placed and left in the HR administrative office away
from the sales team.
• I was no longer included in sales meetings.
• I was no longer permitted to participate in the NETMA meetings
accept [sic] 1 day per week. If I did not have any updates, I was asked
33
Dehnel testified that Shahan had made an accusation of some sort against Bell
Helicopter and that his action had resulted in Boxer’s no longer being allowed to go to
Bell Helicopter but had not resulted in Shahan’s firing. She stated that Shahan was not
terminated for a month and a half later.
34
We have removed Dehnel’s italics and bullet points for readability.
41
to leave the table and go back to my office while the house team stayed
to discuss current business items.
• 3rd party options for booking business were eventually denied for me
to have access to— Mainly being Meeting[]Broker.
• I sat in an office alone with a non-working office phone, computer
issues and a cellular phone that was useless. I used my personal phone
to gain business options.
• The last month I was expected to note my time[;] if 5 minutes late my
pay was to be docked. However, any overtime was not presented as a
wash. I have spent time working from 4:00am . . . to 8:00pm . . . . I
would go home and work remotely to ensure my work was always
current. I always came to work on the weekends and visit with guest[s]
who had bookings and ensure that the event was going well and a good
experience. . . .
. . . . I am relieved that I was terminated today, not angry. I held
strong for a long time, I only wish I could have had a long term business
opportunity with a company I had sought out to work with for a long
time. . . .
She attached the resignation letter she had given Owen, stating that she “had intended
to present [it] at the end of day today 9/25/2019. The GM implemented [her]
termination mid-afternoon instead.”
On October 16, Larson sent an email to Beth Griffin, one of Boxer’s HR
generalists, 35 forwarding Owen’s September 25 email about Dehnel’s termination.
Larson told Beth, “After they termed her, she quit.” Larson sent Beth the email chain
in which Dehnel had copied Brown about lack of MeetingBroker access, and Owen’s
September 24 email about problems with Dehnel. Larson told Beth, “In the email
35
Because this individual has the same last name as another Boxer employee, we
will refer to her by her first name.
42
below, she claims we cut off her access to some IHG site, which was patently false.
Rather, she seemed to have no idea how to correctly use technology.” Larson sent Beth
another email, stating,
I just sent you several emails; read through them and you will get an idea
of what has been going on. She blamed everyone except herself for
anything that went wrong; set herself up as being some kind of bullied
victim in the entire situation. Also, it should be noted that prior to her
leaving, she completely wiped her emails—there is nothing in any of the
folders. I suspected something was going on so got access to email and
found that she was copying her personal email on almost all of her
business emails, including ones to IHG management. She lied about so
many things that eventually it became difficult to determine what was and
was not true. Finally, after she left, she sent a very nasty and vindictive
email about [Owen] and others . . . .
On the same day, Owen also sent Beth a summary, stating,
. . . Pariza decided to put me in charge of the sales department upon
departure of Cara Hayes, effective 06.01.19.
There had been a history of issues between Cara Hayes, Teresa
Dehnel, and Bette Gill regarding standards, procedures, and the use of
Boxer Central Sales that I began to analyze and solve.
My first order of business was to meet with the sales team as a
group and individually to get more detailed knowledge of the issues that
were impacting sales. At this time, I told them any issue they were having
to place in a Boxer Case and forward it to me. From the very beginning, I
got resistance from [Dehnel], telling me that the Boxer Central Sales
System did not work, but not being positive in creating cases to get the
issues solved.[36]
36
Dehnel denied this during her testimony.
43
[Dehnel] was keeping all her work in paper format in a binder.[37] I
again instructed her to put her work in the system or make cases giving
specifics of where she was having issues.
During a review of [Dehnel’s] past catering numbers, she was
achieving approx. 50% of her goal over the past year. I informed her that
she was now required to achieve budget and that I would give her time to
do so.[38] She became argumentative, and soon after, she sent an email to
[Larson] accusing me of being physically aggressive towards her the
second week she was working for us that she had never reported. I then
informed Shelly Campbell, and [Campbell] met with myself and [Dehnel].
While HR was conducting an investigation, [Campbell] asked me to use
[Castillo] as a witness anytime I needed to meet with [Dehnel], which I began doing. A
couple of times, I attempted to meet with [Dehnel] regarding shortfalls to
her goals; she would get upset and say she was seeing a counselor and
taking medication because of this job. She would walk out of the
meetings.[39] [Emphasis added.]
It became impossible to manage her to the point that I wrote the
September 24th email to [Larson], informing her that I was unable to do
so.[40] In that email, I stated that she had achieved 22k in revenue on a
budget of 52k over the previous 90 days, a 58% shortfall from her budget
sales numbers.
37
Dehnel testified that she had “one tiny binder.” She agreed that Owen had told
her to put her work into the system as an ongoing expectation. Boxer’s handbook
required entries into Central Sales, stating, “No sales efforts may be recorded in any
other format or program.”
38
Dehnel agreed in her testimony that Owen had told her that she was required
to achieve budget but claimed that he never told her what the budget was.
39
Dehnel denied that she had ever walked out of a meeting.
40
Dehnel testified that she did not feel that she had been unmanageable.
44
I began to get calls [from] Brian Hill and David Brown of IHG[,]
questioning her access to tools to do her job. She told them she did not
have access, which was simply untrue.[41]
The bottom line is [Dehnel] never achieved her yearly budgeted
catering revenue the entire time she worked for us. She also never used
our Boxer Central Sales System as designed.[42] She deleted every email
from her Boxer email account.[43] She sowed dissension and gossip with
untruths among staff and management.[44] I repeatedly with [Castillo] as a
witness told her I would do anything I could to make her successful,[45]
but it failed.
M. Additional termination evidence
Campbell, who was 55 years old at the time of the trial, testified that neither age
nor gender discrimination played any role in her decision to terminate Dehnel’s
employment and that the decision was not based on retaliation. To the contrary, she
stated that if she had gotten any sense that Owen or anyone else had been discriminating
against Dehnel, she would “absolutely have put a stop to it.” She stated that if Owen
had wanted to terminate Dehnel but Campbell had not wanted to, she—along with
41
Dehnel denied that it was untrue when she told the IHG personnel that she did
not have MeetingBroker access. Dehnel further testified that she had not thought she
was violating a Boxer rule or policy by copying Brown and that she had been unaware
of events that made it embarrassing for Boxer for Brown to receive that email.
42
In contrast, Hayes testified that there was no ongoing problem with Dehnel’s
use of Central Sales.
43
Dehnel denied that she had deleted every email from her Boxer email account.
44
Dehnel denied Owen’s statement about dissension and gossip.
45
Dehnel testified that to her recollection, she did not recall Owen’s ever telling
her that he would do anything he could to make her successful.
45
Larson, the HR director—would have had the authority to make the decision because
Owen was her subordinate. Campbell stated that Larson, as HR director, had the power
to overrule her and Owen.
Larson testified that Campbell was Owen’s boss and that Owen did not have the
authority to overrule Campbell on a termination decision. Larson testified as follows
about Campbell’s September 24 email:
Q. When you read this statement from Shelly Campbell, what was your
understanding of what she wanted to do?
A. She wanted to end the employment relationship.
Q. Okay. And then what did you want to do in response to her statement?
A. I suggested that we discuss it.
Q. Why?
A. Just to make sure that we were handling it correctly.
Q. All right. Did y’all discuss it?
A. Yes.
Larson did not specifically testify about what she and Campbell discussed.
Larson and Owen both testified that they believed Campbell had initiated the
termination decision. However, during discovery, Dehnel’s counsel propounded the
following interrogatory: “Identify name [and contact information of] . . . each person
involved in the decision to terminate Plaintiff’s employment, and describe each person’s
role in the decision-making process.” Boxer answered the interrogatory as follows:
46
“Mike Owen was the primary person involved in the decision to terminate Dehnel’s
employment with input and involvement by Shelly Campbell and Betty Jean Larson.”
Boxer’s employee-termination policy stated that involuntary termination could
occur for, among other things, “failure to maintain immediate and sustained
performance improvement previously addressed in a Corrective Action Notice,” but
the record contains no Corrective Action Notices. Boxer’s policy also stated that failure
to abide by Boxer’s standards of conduct would make an employee subject “to
discipline and/or immediate discharge” and listed examples, including “[d]isruptive or
unprofessional behavior”; “[d]isclosing confidential Company information”;
“[u]nauthorized use of . . . mail system or other employer-owned equipment”;
“[i]nattention to [d]uties” by ignoring or failing to complete job duties; and
insubordination, which included “[w]illful refusal to comply with the
instruction/direction of a Supervisor,” “[r]efusal to do an assigned job,”
“unprofessional response to a service request,” or “[d]elay in carrying out an
assignment.” Boxer’s policy required a supervisor to contact HR before any termination
“to receive proper guidance” because “of legal issues that could arise.”
Boxer’s confidential-information policy stated that “[t]he misuse, unauthorized
access to, or mishandling of confidential information [which included any information
without prior authorization that might be contrary to the company’s interests] . . . is
strictly prohibited and will subject an employee to . . . discipline up to and including
immediate discharge.” Additionally, Boxer’s offer letter to Dehnel stated that her
47
employment would be “at-will” and could be “terminated by [e]ither party at any time,
for any reason, without further obligation.”
Dehnel testified that the September termination meeting was brief. Griffin told
her that Owen needed to speak with her. She went to Owen’s office, and he told her,
“We’ve made the decision to terminate your employment due to your performance.”
However, Owen agreed at trial that before her July discrimination complaint, he had
told Dehnel that she should not worry about being terminated for being short on the
catering budget.
Jackson testified that when he asked Owen why Dehnel was terminated, Owen
told him that Dehnel had been “stealing files,” and that when Jackson pressed further,
“it was more to the fact that he was in charge and what he said goes and that’s that, you
know.” Campbell testified that to her, there were two items of significance in Dehnel’s
termination: (1) Dehnel’s failure to use internal systems and (2) including IHG on an
internal email.
III. Sufficiency
In its first issue, Boxer contends that Dehnel failed to establish legally sufficient
evidence of causation to support her retaliation claim, and in its fourth issue, Boxer
argues that there is legally insufficient evidence to support her noneconomic-damages
award.
48
A. Standard of review
We may sustain a legal-sufficiency challenge—that is, a no-evidence challenge—
only when (1) the record bears no evidence of a vital fact, (2) the rules of law or of
evidence bar the court from giving weight to the only evidence offered to prove a vital
fact, (3) the evidence offered to prove a vital fact is no more than a mere scintilla, or
(4) the evidence establishes conclusively the opposite of a vital fact. Gunn v. McCoy, 554
S.W.3d 645, 658 (Tex. 2018). In determining whether legally sufficient evidence
supports the challenged finding, we must consider evidence favorable to the finding if
a reasonable factfinder could, and we must disregard contrary evidence unless a
reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651
(Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We indulge “every
reasonable inference deducible from the evidence” in support of the challenged finding.
Gunn, 554 S.W.3d at 658 (quoting Bustamante v. Ponte, 529 S.W.3d 447, 456 (Tex. 2017)).
Anything more than a scintilla of evidence is legally sufficient to support a
finding. Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727–28 (Tex. 2003). More than a
scintilla exists if the evidence rises to a level that would enable reasonable and fair-
minded people to differ in their conclusions. Gunn, 554 S.W.3d at 658. On the other
hand, no more than a scintilla exists when the evidence offered to prove a vital fact is
so weak that it creates no more than a mere surmise or suspicion of its existence.
McAllen Hosps., L.P. v. Lopez, 576 S.W.3d 389, 397 (Tex. 2019); Kindred v. Con/Chem, Inc.,
650 S.W.2d 61, 63 (Tex. 1983).
49
The factfinder is the sole judge of the witnesses’ credibility and the weight to be
given to their testimony. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex.
2003).
B. Retaliation and causation
An employer commits retaliation, an unlawful employment practice, if it
retaliates or discriminates against a person who opposes a discriminatory practice. See
Tex. Lab. Code Ann. § 21.055. A retaliation claim is related to, but distinct from, a
discrimination claim in that it focuses on the employer’s response to an employee’s
protected activity. Alamo Heights ISD v. Clark, 544 S.W.3d 755, 763–64 (Tex. 2018). 46 A
remedy only exists when the evidence establishes that a materially adverse employment
action47 resulted from the employee’s protected activities. Id. at 764. An employee
claiming retaliation must prove that but for her protected conduct, her employer’s
Boxer refers us to In re Parkland Health and Hospital System Litigation, No. 05-17-
46
00670-CV, 2018 WL 2473852, at *10 (Tex. App.—Dallas 2018, no pet.) (mem. op.),
arguing that “[w]hen the final decision maker is in the same protected class as the
employee, there is a presumption that retaliation was not a factor in the decision to
discharge the employee.” But that presumption applies in a discrimination case. See id.(holding that the trial court erred by denying Parkland’s plea to the jurisdiction on the
plaintiff’s discrimination claim because he did not establish a prima facie case of
termination based on discrimination); see also Agoh v. Hyatt Corp., 992 F. Supp. 2d 722,
744 (S.D. Tex. 2014) (“When decision makers are in the same protected class as the
plaintiff, there is a presumption that unlawful discrimination is not a factor in the
discharge.” (emphasis added)).
Termination is a materially adverse employment action. Alamo Heights, 544
47
S.W.3d at 788–89.
50
prohibited conduct would not have occurred when it did. Apache Corp. v. Davis, 627
S.W.3d 324, 325 (Tex. 2021). An adverse employment action based solely on reasons
unrelated to the protected conduct destroys the causal link. Id.; see Scott & White Mem’l
Hosp. v. Thompson, 681 S.W.3d 758, 761–62 (Tex. 2023) (discussing but-for causation
and explaining that for a violation to occur, the protected conduct need not be the
employer’s sole motivation for the adverse action but that it must be such that without
the protected conduct, the adverse action would not have occurred when it did).
In evaluating but-for causation evidence in retaliation cases, we examine all the
circumstances, including temporal proximity between the protected activity—here, the
discrimination complaints that occurred between July 19 and July 22, 2019, and on
August 19, 2019—and the adverse action—the September 25, 2019 firing—as well as
knowledge of the protected activity, expression of a negative attitude toward the
employee’s protected activity, failure to adhere to relevant established company policies,
discriminatory treatment in comparison to similarly situated employees, and evidence
that the employer’s stated reason for the adverse employment action is false. See Apache
Corp., 627 S.W.3d at 325–26 & n.3 (citing Alamo Heights, 544 S.W.3d at 790); see also Off.
of Att’y Gen. v. Rodriguez, 605 S.W.3d 183, 192–93 (Tex. 2020).
Evidence of disparate treatment of other employees’ conduct requires that the
employees’ circumstances be comparable in all material respects. Apache Corp., 627
S.W.3d at 339. To prove disparate discipline, for example, the employee must usually
show that the misconduct for which she was discharged was nearly identical to that
51
engaged in by other employees whom the company retained. Id. The reason for the
“nearly identical” requirement is to prevent a factfinder from determining the relative
seriousness of misconduct without evidence of the employer’s view. Id.
Further, an employer is not forbidden from addressing performance issues
involving employees who have engaged in protected activity, including following
through on known preexisting issues and addressing existing issues that come to light
only during subsequent investigation. Alamo Heights, 544 S.W.3d at 791–92. An
employee’s denials of performance issues are insufficient to create a fact issue as to
causation. Id. at 792. Instead, the “issue is whether the employer’s perception of the
problem—accurate or not—was the real reason for termination.” Id. And context is
critical in a legal-sufficiency review because “the lack of supporting evidence may not
appear until all the evidence is reviewed in context.” Id. at 793 (quoting City of Keller, 168
S.W.3d at 811); City of Haltom City v. Forrest, No. 02-20-00084-CV, 2021 WL 733057, at
*4 (Tex. App.—Fort Worth Feb. 25, 2021, no pet.) (mem. op.) (noting that the
significance of any given act of retaliation will often depend upon the particular
circumstances because “[c]ontext matters”).
Determining but-for causation cannot be a matter of weighing—or worse,
counting—factors that may be helpful in analyzing circumstantial evidence in some
situations. Apache Corp., 627 S.W.3d at 337. In Apache, in considering causation, the
court asked whether there was any evidence to support a jury’s finding that but for the
plaintiff’s one-sentence reference to discrimination in an email, her employer would not
52
have terminated her when it did. Id. The court noted undisputed evidence of the
plaintiff’s insubordination before she sent the email and that both the plaintiff’s and her
supervisor’s testimonies agreed that she was terminated for working unapproved
overtime—an undisputed basis for her termination—meaning that “there could be no
evidence that she would not have been terminated but for her email.” Id. at 337–38.
Further, the company’s human-resources manager had told the plaintiff’s supervisor to
fire her before the plaintiff ever sent her discrimination email. Id. at 328, 338 (observing
that carrying out a previously planned employment decision is no evidence of causation
even if the employment decision was contemplated but not yet definitively determined).
The court stated that the plaintiff’s undisputed conduct gave her employer a legitimate
reason to terminate her for insubordination; her subsequent email only added to her
insubordination. Id. at 339.
Likewise, in Thompson, a nurse complained that she had been terminated for
making a report to Child Protective Services (CPS) under Family Code Section 261.110,
which requires reporting child abuse or neglect. 681 S.W.3d at 759–61. However, she
had already received two written reprimands in 2015 for violating the hospital’s
personal-conduct policy and had committed a third policy violation in May 2016 by
contacting a child’s school nurse and disclosing the child’s protected health information
before she made the CPS report. Id. at 759–60.
On summary judgment, the nurse’s termination report stated that she was
terminated for a policy violation (contacting the school nurse) but also noted that she
53
had made the CPS report. Id. at 763. The court acknowledged that the nurse did not
have to prove that her CPS report was the “sole” reason for her termination, and the
fact that she was terminated for an additional reason would not prevent her from
establishing the necessary causation, but it reiterated that the causation standard’s
“second half require[d] her to prove that the additional reason [policy violation],
standing alone, was insufficient to cause [the hospital] to fire her when it did.” Id. The
nurse failed to do so when her second written reprimand—seven months earlier—had
warned her that a third violation would result in her termination. Id. at 764. That is, the
evidence established that her contact with the school nurse motivated the hospital to
terminate her employment when it did, and she acknowledged that hospital employees
would not be motivated to retaliate against her for making the CPS report. Id. “Without
evidence that she would not have been terminated when she was ‘but for’ the CPS
report, she [could] not establish a violation of Section 261.110.” Id.
To determine, in the first instance,48 whether an adverse employment action was
taken because of retaliation, we focus on the final decisionmaker: “The plaintiff must
show that the final decisionmaker was aware of the plaintiff’s protected activity.” Esker
v. City of Denton, No. 02-17-00003-CV, 2017 WL 4819401, at *5 (Tex. App.—Fort
48
A retaliation claim based on circumstantial evidence is subject to an evidentiary
burden-shifting analysis. See Alamo Heights, 544 S.W.3d at 764 & n.5 (citing McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973)). But when there has been a
trial on the merits, a court can bypass the burden-shifting analysis and proceed to the
ultimate question of whether the plaintiff presented enough evidence for a jury to find
that retaliation occurred. EEOC v. EmCare, Inc., 857 F.3d 678, 683 (5th Cir. 2017).
54
Worth Oct. 26, 2017, no pet.) (mem. op.); see Rodriguez, 605 S.W.3d at 193 (explaining
that in determining causation, the court focuses on those with authority in the decision-
making process that resulted in the adverse employment action and whether there is
evidence that the decisionmaker acted with a retaliatory motive). This is because if the
employer is unaware of the employee’s protected activity at the time of the adverse
employment action, the employer could not have retaliated against the employee based
on that conduct. Esker, 2017 WL 4819401, at *5 (stating that there was no evidence that
the final decisionmaker was aware of the plaintiff’s complaints to HR at the time the
adverse employment decision was made, as conceded by the plaintiff in her deposition
testimony and unsworn declaration). Evidence of one decisionmaker’s improper motive
cannot be imputed to all decisionmakers—or to the final employment decision—
without evidence that the improper motive influenced the final decision. Rodriguez, 605
S.W.3d at 193.
Further, an employee’s complaining only of “harassment,” “hostile
environment,” or “bullying” is not enough. Alamo Heights, 544 S.W.3d at 786–87. There
must be some actual indication of an improper motivation to put the decisionmaker on
notice. Id. at 787 (stating that the principal could not have been reasonably alerted that
the coach was acting out of sex-based discrimination from plaintiff’s letter to the
principal characterizing the coach’s behavior as “inappropriate,” “offensive,”
“bullying,” “harassment,” “embarrassing,” “rude,” and “intimidating”). Likewise,
calling a plaintiff a “troublemaker,” a “cry baby,” or a “spoiled child” is not the sort of
55
behavior that constitutes a materially adverse employment action when it is unclear
whether the statements refer to a discrimination complaint or some other workplace
issue. Brown v. Advoc. S. Suburban Hosp., 700 F.3d 1101, 1107–08 (7th Cir. 2012) (listing
as not materially adverse mild epithets, staring and yelling, the “silent treatment,” and
incivility at meetings such as eye-rolling and commenting behind the plaintiff’s back).
However, if the final decisionmaker merely “rubber stamps” another’s
recommendation to terminate employment, the causal link between the allegedly
retaliatory intent and the subsequent termination may remain intact. See Long v. Eastfield
Coll., 88 F.3d 300, 307 (5th Cir. 1996) (describing “cat’s paw” linking supervisor’s
allegedly retaliatory intent); see also Zamora v. City of Houston, 798 F.3d 326, 331–32 (5th
Cir. 2015) (explaining that under a cat’s paw theory, the plaintiff must establish that the
person with a retaliatory motive somehow influenced the decisionmaker to take the
retaliatory action). Evidence of generalized discussions between a decisionmaker and
someone with knowledge of the plaintiff’s protected activity creates only a speculative
inference regarding the decisionmaker’s awareness. EmCare, Inc., 857 F.3d at 683.
1. The parties’ arguments
Boxer argues that Dehnel failed to establish causation because she failed to
establish that Campbell knew about Dehnel’s discrimination claims or that Campbell’s
decision to terminate was based on any retaliatory intent. Boxer claims that, at most,
“Campbell was aware that Dehnel had merely complained that Owen was a poor
manager,” that such an allegation is legally insufficient to support her retaliation claim,
56
and that Dehnel’s testimony that she did not blame Campbell for retaliation made the
evidence legally insufficient to support the jury’s finding.
Dehnel responds that Boxer’s argument is “based on two fictions: (1) that
Campbell was the sole decision maker; and (2) that Campbell knew nothing about
Dehnel’s complaints of discrimination,” and she argues that “there is no real need to
focus solely on Campbell’s knowledge and intent” or on Dehnel’s own testimony about
who discriminated and retaliated (i.e., only Owen) because it does not make all the other
evidence vanish.
Dehnel refers us to jury question 3 and points out that the jury was not asked to
decide if a lone decisionmaker knew about the discrimination complaints but rather
whether Boxer would have terminated her but for her opposition to Boxer’s
discriminatory practices. Dehnel contends that based on jury question 3’s wording, the
knowledge and motive of any Boxer employee was relevant and may have been weighed
by the jury. Jury question 3 asked,
Did Boxer Property Management Company discharge Teresa R. Dehnel
because of Teresa R. Dehnel’s opposition to a discriminatory practice?
Teresa R. Dehnel must establish that without her opposition to a
discriminatory practice, if any, her discharge would not have occurred
when it did. There may be more than one cause for an employment
decision. Teresa R. Dehnel need not establish that her opposition to a
discriminatory practice, if any, was the sole cause of her discharge, if any.
If you do not believe the reason Boxer Property Management Company
has given for discharge, you may, but are not required to, infer that Boxer
Property Management Company would not have discharged Teresa R. Dehnel
but for her opposition to a discriminatory practice. [Emphases added.]
57
Answer “Yes” or “No.”
Answer: Yes.
Because Boxer did not object to this instruction, we must measure the evidentiary
sufficiency in light of it. See Green v. Dall. Cnty. Schs., 537 S.W.3d 501, 506 (Tex. 2017).
Dehnel also refers us to EmCare, Inc., 857 F.3d at 683–85,49 and to the following
evidence the jury heard about who decided to terminate her employment:
• Boxer’s interrogatory stating that Owen was the primary person involved in the
decision, with input and involvement by Campbell and Larson.
• Larson’s testimony that Campbell made the decision and that she and Owen were
involved in Campbell’s decision.
• Campbell’s testimony about when Boxer made the decision, i.e., after Campbell,
Owen, and Larson had talked about it.
Dehnel further argues that there is evidence supporting an inference that Campbell
knew about her discrimination complaints, especially because Campbell never denied
49
In EmCare, the EEOC sued EmCare after EmCare terminated three employees,
including Luke Trahan. 857 F.3d at 680. A jury found that EmCare had terminated
Trahan in retaliation for complaining about workplace sexual harassment. Id. On
appeal, EmCare contended that the EEOC had failed to present sufficient evidence of
a causal link between Trahan’s protected activity and termination because there was no
evidence that the individual who decided to terminate him was aware that he had
engaged in the protected activity. Id. at 683. But the evidence of the decisionmaker’s
awareness of Trahan’s protected activity was based on “an abundance of conflicting
testimony,” allowing the jury to find that the decisionmaker was aware of Trahan’s
complaints, that the justification for firing Trahan was pretextual, and that more than
one decisionmaker was involved in the termination. Id. at 684–85.
58
knowing about them, and that the causation element is satisfied under the “cat’s paw”
analysis.
2. Analysis
We begin with the decisionmaker, see Esker, 2017 WL 4819401, at *5, about
which there was disputed testimony, allowing the jury to determine who—for Boxer—
ultimately made the decision: Campbell, Larson, Owen, or some combination thereof,
influenced by Owen’s various reports about Dehnel that neither Campbell nor Larson
independently verified. Cf. Tex. Health & Human Servs. Comm’n v. Jackson, No. 02-22-
00203-CV, 2023 WL 2325189, at *4 (Tex. App.—Fort Worth Mar. 2, 2023, pet. denied)
(mem. op.) (“It was undisputed that Salter made the final decision to terminate
Jackson.”). The record reflects that Dehnel made her discrimination complaints to
Larson, who testified that to protect both Owen and Dehnel, “We suggested that there
always be a witness in the room whenever she met with [Owen], to have [Griffin] or
[Campbell] or someone in the room . . . .” [Emphasis added.] In his October 16
summary to HR, Owen stated, “While HR was conducting an investigation, [Campbell] asked
me to use . . . Castillo as a witness anytime I needed to meet with [Dehnel], which I began
doing.” [Emphasis added.] Owen’s October 16 statement illustrates Campbell’s
awareness of both the HR investigation and its basis before the termination decision.
Cf. EmCare, Inc., 857 F.3d at 683 (stating evidence of generalized discussions creates
only a speculative inference of the decisionmaker’s awareness). And although Campbell
testified that she would have put a stop to any discrimination against Dehnel by Owen
59
if she had gotten any sense of it, the jury could have chosen to disbelieve her. See Golden
Eagle Archery, 116 S.W.3d at 761. This factor weighs in favor of the jury’s causation
finding.
As to temporal proximity, Boxer fired Dehnel on September 25, almost
immediately after she sent her September 23 message to IHG, just over two months
after she made her first discrimination complaint about Owen to Larson between July
19 and July 22, and just over a month after she renewed her discrimination complaint
about Owen to Larson on August 19. See Alamo Heights, 544 S.W.3d at 790 (noting that
temporal proximity is relevant to causation when it is “very close” and that an eight-
month gap between an EEOC charge and the termination recommendation was “so
long as to be of little, if any, probative value”); see also Allen v. U.S. Postal Serv., 63 F.4th
292, 305 (5th Cir. 2023) (stating that six-month gap between protected activity and
termination was too long but that seven-week gap was not); Besser v. Tex. Gen. Land Off.,
834 F. App’x 876, 885 (5th Cir. 2020) (“We conclude that two and one-half months
between the protected activity and the adverse employment decision, standing alone, is
not within the ‘very close’ proximity that is necessary to establish causation.”); Esparza
v. Univ. of Tex. at El Paso, 677 S.W.3d 115, 126 (Tex. App.—El Paso 2023, no pet.)
(stating that temporal proximity between a protected act and an adverse employment
action may suffice as evidence of a causal connection when the acts are separated by
weeks, as opposed to months or years). This factor weighs in favor of the jury’s
causation finding.
60
While the record may reflect various negative attitudes toward Dehnel generally
by Larson, Campbell, Owen, and others (e.g., Gill), it is less clear whether their specific
attitudes involved her protected activity (the discrimination complaints) or were related
to her general performance or attitude. However, the jury could have reasonably
determined that Larson’s statement that Dehnel “becomes angry or accusatory”
referred to Dehnel’s discrimination complaints and to Larson’s negative attitude about
them. See Golden Eagle Archery, 116 S.W.3d at 761. This factor weighs in favor of the
jury’s causation finding.
Regarding the failure to adhere to relevant established company policies, Boxer
had fired a salesperson (Shahan) a month or so before Dehnel’s termination without
following its verbal/written disciplinary procedure and Hayes, a supervisor, had fired
Dehnel’s predecessor Levy. Dehnel’s offer letter from Boxer and the Boxer handbook
showed that the progressive-disciplinary procedure—while favored—did not have to
be followed in all circumstances. See Jackson, 2023 WL 2325189, at *6 (“The dispositive
issue on [the employer’s-failure-to-adhere-to-established-company-policies] factor is
not whether an employer engaged in any activity against their own policies; rather, []we
must ask whether an employer terminated an employee against its own policies.[]”
(citation omitted)). However, although Boxer had various reasons under its employee-
termination policy that the record would have supported for Dehnel’s termination,
including sending company emails to her personal email and releasing confidential
company information to IHG, Owen cited her performance as the primary reason for
61
termination despite having told Dehnel before her discrimination complaints that he
would take her lodging revenue into account and without having issued any corrective
action notices. Cf. Thompson, 681 S.W.3d at 759–60 (noting that nurse had received two
written reprimands before her third policy violation and that her second written
reprimand had warned her that a third would result in termination); Alamo Heights, 544
S.W.3d at 792 (referencing the employer’s perception of the problem as the “real”
reason for termination).
We also note that, unlike in Apache, the parties’ evidence did not agree as to why
Dehnel was terminated and that her termination occurred after she made her
discrimination complaints. Cf. 627 S.W.3d at 328, 337–38. Jackson testified that when
he asked Owen why Dehnel was terminated, Owen told him that Dehnel had been
“stealing files.” After Jackson pressed Owen, however, Jackson concluded that “it was
more to the fact that he was in charge and what he said goes.” Owen told Dehnel she
was terminated for performance, while Campbell testified that Dehnel’s termination
was based on her failure to use internal systems and for including IHG on the internal
email.
Additionally, the record shows that although many Boxer employees experienced
computer problems, Dehnel’s were not remedied as quickly as others, and her phone
problems were never remedied. The jury could have inferred that Boxer set Dehnel up
to fail after her discrimination complaints by continuing to fail to resolve problems she
had experienced since at least August 2018 and then using performance as an excuse to
62
retaliate by firing her, particularly considering her exceeds-expectations performance
review before Owen became her supervisor. See Jackson, 2023 WL 2325189, at *6 (noting
that “evidence that an employer is ‘pleased with an employee’s work performance
supports a finding of pretext when that evidence contradicts the reason given by the
employer of poor performance’” (quoting Bell Helicopter Textron, Inc. v. Burnett, 552
S.W.3d 901, 916–17 (Tex. App.—Fort Worth 2018, pet. denied)); see also Allen, 63 F.4th
at 306 (recounting plaintiff’s evidence that her supervisors had set her up for failure by
obstructing her efforts to succeed at her job, including denying her necessary tools, and
that her employer did not document the performance deficiencies that it relied on as a
basis for her termination). This factor weighs in favor of causation.
As to discriminatory treatment in comparison to similarly situated employees,
although Dehnel argued disparate treatment based on sex and age, the nonunanimous
jury did not find either. The record reflects that Castillo was hired at a higher salary than
Dehnel but also possessed more qualifications apart from Dehnel’s overall sales
experience: Castillo had the IHG certificate required to become DOS and she spoke
Spanish, both of which were valuable to Boxer. The other sales employee, Shahan—
who Boxer terminated before Dehnel, also without following the progressive-discipline
policy—had more in common with Dehnel, but it is unclear from the record if he made
a discrimination complaint before his termination. Cf. Jackson, 2023 WL 2325189, at *6
(noting that employees are similarly situated only if their circumstances are comparable
in all material respects, including similar standards, supervisors, and conduct, and if they
63
also were terminated or suffered an adverse employment action after making their
complaint). This factor appears to be neutral.
Based on all of the above, and in light of the jury charge and our standard of
review, see Gunn, 554 S.W.3d at 658; Marathon Corp., 106 S.W.3d at 727–28, we conclude
that there is legally sufficient evidence to support the jury’s causation finding. We
overrule Boxer’s first issue.
C. Noneconomic damages
In its fourth issue, Boxer complains that there is legally insufficient evidence of
the nature, duration, and severity of Dehnel’s mental anguish or of any other
noneconomic damages to support the jury’s $32,000 award. Boxer argues, “Given that
she was going to quit voluntarily . . . a few minutes later, no reasonable juror could find
mental anguish associated with this termination of employment.” Dehnel responds that
the evidence is legally sufficient to support compensatory damages, including her
mental-anguish damages, and that Boxer waived any complaint about the remaining
compensatory damages by failing to address them.
Mental-anguish damages are neither punitive nor exemplary but rather are
compensatory. 50 Gregory v. Chohan, 670 S.W.3d 546, 551 (Tex. 2023). As the supreme
court has recently noted, “Assigning a dollar value to non-financial, emotional injuries
The jury awarded $32,000 to Dehnel for “[c]ompensatory damages in the past,
50
which include emotional pain and suffering, inconvenience, mental anguish, loss of
enjoyment of life, and other noneconomic losses.” See Tex. Lab. Code Ann. § 21.2585.
64
such as mental anguish . . . will never be a matter of mathematical precision.” Id. at 550.
The damages awarded for a noneconomic injury must be “the result of a rational effort,
grounded in the evidence, to compensate the plaintiff for the injury.” Id. Thus, there must
be evidence both of the “existence of compensable mental anguish” and “evidence to
justify the amount awarded.” Id. at 551. As to both existence and amount, 51 there must
be evidence of the mental anguish’s nature, duration, and severity. Id. at 554, 557.
The mental anguish must have been such that it caused a substantial disruption
in the plaintiff’s daily routine or a high degree of mental pain and distress. Id. at 555
(quoting Bentley, 94 S.W.3d at 606). In some cases, for example, there may be direct
evidence supporting quantification of an amount of damages, such as evidence of the
likely financial consequences of severe emotional disruption in the plaintiff’s life, or
evidence that some amount of money would enable the plaintiff to better deal with grief
or to restore her emotional health. Id. at 560.
“The presence or absence of pain, either physical or mental, is an inherently
subjective question.” Stone v. Christiansen, No. 02-22-00450-CV, 2023 WL 5766076, at
51
As to justifying the amount, in Bentley v. Bunton, for example, the supreme court
struck a $7 million award because although the record left no doubt that the plaintiff
had suffered mental anguish as a result of the defendants’ defamatory statements, his
testimony that the ordeal had “cost him time, deprived him of sleep, caused him
embarrassment in the community in which he had spent almost all of his life, [and]
disrupted his family,” and his friends’ testimony about his depression and the
impugning of his honor and integrity, was “no evidence that [he] suffered mental
anguish damages in the amount of $7 million, more than forty times the amount
awarded him for damage to his reputation.” 94 S.W.3d 561, 606–07 (Tex. 2002).
65
*6 (Tex. App.—Fort Worth Sept. 7, 2023, no pet.) (mem. op.) (quoting Gen. Motors Corp.
v. Burry, 203 S.W.3d 514, 551 (Tex. App.—Fort Worth 2006, pet. denied) (op. on reh’g)).
A jury has wide latitude in determining the appropriate amount of damages for such
injuries, and the plaintiff’s credibility is central to such claims. Id. at *6–7. Mental
anguish includes the mental sensation of pain resulting from such emotions as grief,
severe disappointment, indignation, wounded pride, shame, despair, and public
humiliation, and recovery is warranted when the plaintiff’s mental pain has risen to such
a level that it has rendered her incapable of dealing with certain everyday activities like
eating, sleeping, working, and socially interacting. Katy Springs & Mfg., Inc. v. Favalora,
476 S.W.3d 579, 595 (Tex. App.—Houston [14th Dist.] 2015, pet. denied). There are
no magic words to establish mental anguish. Id.A plaintiff’s testimony alone can suffice to prove mental anguish, although
corroborating evidence from a spouse or friend can be helpful in determining
evidentiary sufficiency. Bearden v. LeClair, No. 02-20-00177-CV, 2022 WL 3273598, at
*18 (Tex. App.—Fort Worth Aug. 11, 2022, no pet.) (mem. op.). When a claimant fails
to present direct evidence of the nature, duration, or severity of her anguish, we apply
traditional “no evidence” standards to determine whether the record reveals any
evidence of “a high degree of mental pain and distress” that is “more than mere worry,
anxiety, vexation, embarrassment, or anger” to support any award of damages. Parkway
Co. v. Woodruff, 901 S.W.2d 434, 444–45 (Tex. 1995) (noting that qualifying events
supporting an inference that injury was accompanied by mental anguish have shown “a
66
threat to one’s physical safety or reputation or involved the death of, or serious injury
to, a family member”); 52 see Bearden, 2022 WL 3273598, at *18 (“The record must
provide either direct evidence of the nature, duration, and severity of a plaintiff’s mental
anguish, thus establishing a substantial disruption in his daily routine, or evidence of a
high degree of mental pain and distress that exceeds mere worry, anxiety, vexation,
embarrassment, or anger.”).53 Generalized, conclusory descriptions of how an event
affected a person are insufficient evidence upon which to base mental-anguish damages.
52
In Parkway, the plaintiffs bought a home in 1981 that was flooded by a nearby
developer’s activities in 1983, 1986, 1987, and 1989. 901 S.W.2d at 436–37. The court
of appeals deleted their mental anguish damages award. Id. at 438. After performing a
historical overview of that area of law, id. at 442–44, the supreme court agreed with the
deletion because although the evidence showed that the plaintiffs “felt anger,
frustration, or vexation,” it did not support the conclusion that those emotions rose to
a compensable level. Id. at 445.
53
In Bearden, the plaintiff sued for malicious prosecution and defamation after the
dismissal of a felony-theft indictment that his former clients had collaborated to procure
against him. 2022 WL 3273598, at *1. The plaintiff testified that in the weeks after his
indictment and arrest, he experienced dry heaving, diarrhea, frightening involuntary
muscle twitches, sleeplessness, and anxiety so intense that he sought medical help. Id.
at *18. He saw a counselor for over a year, described himself as an emotional “wreck,”
and contemplated suicide. Id. He characterized the situation as causing him a high
degree of mental pain and stress that he had never before experienced. Id. His pastor
testified that he made daily welfare calls after the plaintiff brought up suicide. Id. at *19.
We concluded that there was sufficient evidence of compensable mental anguish before
turning to the amount of damages, noting that the jury’s $500,000 past-mental-anguish-
damages award for malicious prosecution had been reduced in the judgment to
$485,000, which the defendant challenged as excessive. Id. We concluded that in light
of the evidence, the award was not excessive, noting that the plaintiff had “faced losing
his liberty for up to two years—730 days, 17,520 hours, more than one million
minutes—for a crime that both [the defendant] and he knew he did not commit.” Id. at
*20–21.
67
Miller v. Watkins, No. 02-20-00165-CV, 2021 WL 924843, at *19 (Tex. App.—Fort
Worth Mar. 11, 2021, no pet.) (mem. op.) (quoting Anderson v. Durant, 550 S.W.3d 605,
619 (Tex. 2018)).
Descriptions sufficient to sustain a mental-anguish finding have included
testimony about treatment for anxiety and depression, losing time with family and
friends and other substantial impacts on family relationships, and changes in demeanor
and sleep. Id. at *20 (referencing Bentley, 94 S.W.3d at 606–07, 619–20); see also Bennett v.
Grant, 525 S.W.3d 642, 648–49 (Tex. 2017) (holding evidence sufficient to support high
degree of mental pain and distress when plaintiff’s daily routine was substantially
disrupted to the extent that he was afraid to leave his house, his demeanor changed
significantly, and he experienced headaches, a weak stomach, a loss of appetite, and
sleep deprivation).
For example, in Anderson, a defamation case, the plaintiff testified about the
impact on his family relationships, that he had developed paranoia and anxiety during
the “two-year nightmare trying to get [his] life back and [his] reputation back,” and that
he had experienced trouble sleeping, eating, and focusing, along with worry about his
family’s future and his “30-year career that had been slandered all over town.” 550
S.W.3d at 620 (“Anderson’s testimony is some evidence he suffered compensable
mental anguish.”); Rogers v. City of Fort Worth, 89 S.W.3d 265, 283–84 (Tex. App.—Fort
Worth 2002, no pet.) (“[T]he [legally and factually sufficient mental-anguish] evidence
shows that Rogers was ‘devastated’ over being fired, became extremely depressed, and
68
lost all motivation. In addition, his sleep pattern was completely disrupted . . . [and he]
also became extremely irritable, so that his wife could not even have a conversation
with him.”); see also Tex. Dep’t of Transp. v. Flores, 576 S.W.3d 782, 801 (Tex. App.—El
Paso 2019, pet. denied) (holding evidence was sufficient to support mental-anguish
award when plaintiff testified that his termination was “devastating” to him, that he had
lost his “pride,” “dignity,” and self-image, that he had been dedicated to his job for over
twenty years and proud of his performance ratings and reviews, and that the loss of his
job had “broken” him).
Boxer refers us to Saenz v. Fidelity & Guaranty Insurance Underwriters, 925 S.W.2d
607 (Tex. 1996), to support its argument that there is legally insufficient evidence to
support Dehnel’s award. The plaintiff in that case sued her employer’s worker’s
compensation carrier and adjuster for wrongfully inducing her to settle her claim. Id. at
608. The supreme court held that there was no evidence that the plaintiff had suffered
mental anguish when the only evidence in the record was the following question and
the plaintiff’s answer:
Q[.] Can you tell the jury what it is that you were concerned about . . . this
lifetime medical benefits and who was going to wind up paying for the
lifetime medical benefits that you were told you were going to incur?
A[.] I worried about that a lot. My husband was already working
two jobs, and I was worried also that we were going to lose our house
because when we bought it we had two incomes, and I knew that we
couldn’t afford the medical bills that we were going to have.
69
Id. at 614. The court held that the plaintiff’s concern about future medical expenses did
not rise to the level of compensable mental anguish. Id. (stating that proving worry,
anxiety, vexation, and anger is insufficient without proving that the distress “involved
more than these emotions”).
Dehnel gave the following testimony about mental anguish during her attorney’s
direct examination.
Q. . . . Did you experience any mental anguish as a result of the conduct
you were alleging was unlawful?
A. Yes, I did.
Q. Describe it for me.
A. Depression, embarrassment, humiliation, anxiety.
Q. That’s not going to cut it. You’ve got to tell me, give me -- you
know, explain an event or something that you can describe, you know,
with a little -- an example or detail.
A. As -- can you rephrase the question? I’m not really sure I
understand.
Q. I’m asking you if you had mental anguish, to describe it, but not
just to use a word or two --
A. Uh-huh.
Q. -- to narrate, you know, a couple of examples for me.
A. Depression, sleeping all of the time, not going out and spending
time just doing the normal things that you do in life. I just didn’t want to
leave the house. . . .
....
70
Q. . . . [T]o be terminated and feel -- I mean, obviously you feel it
was not a right decision.
A. Correct.
Q. How did that feel?
A. Gosh, just almost like a betrayal, very unfair. I didn’t understand.
I didn’t understand why it was like that, why it happened the way that it
-- it just -- why they had to go that direction, or [Owen] did.
Q. And did you get any closure back from HR or Campbell
responding to you when you tried to go to them for concerns and help?
A. No, I did not.
Q. How did that feel?
A. Abandonment kind of, like I was shunned, if you will, that this
is the leper, if that makes since.
Q. Okay.
A. Stay away from her.
Q. Is there anything else you want to say on that topic?
A. It was -- it was difficult all the way around. It just created a lot
of -- more depression and my ability to just want to be able to get out and
do things, I did not want to do anything. I was very upset. It was difficult,
it was humiliating.
Dehnel also testified that after Boxer fired her—on September 25, 2019, not
quite half a year before COVID-19 arrived in Texas —she lacked health insurance and
that this was a concern for her during her months of unemployment. She was unable
to pay some of her out-of-pocket medical expenses after she sustained an injury and so
was unable to have all the recommended treatments and therapies; she also had a
71
preexisting condition called Sjogren’s Syndrome,54 and before the termination, Dehnel
was seeing a cardiologist. After the COVID-19 pandemic arrived in Texas, she worried
about getting sick without health insurance. Despite looking for a new job before and
after Boxer fired her, Dehnel was out of work from the end of September 2019 until
sometime between May and August 2021. Dehnel’s mother, who was ill and relied on
Dehnel for care, lived with Dehnel before and after Boxer terminated her.
During cross-examination, Dehnel acknowledged that she had experienced some
stress before her termination from her father’s death and the ensuing probate litigation
and that she had started seeing a therapist in early June 2019 to work out her depression
and grief. Boxer’s counsel asked her, “How was the stress from your father’s death and
the probate litigation any different or separate from the stress you’re alleging in this
lawsuit? Can you distinguish the two at all?” Dehnel replied, “They are different types
of stress. Each one is different, so I can’t say, um, if one created more than the other
or not.”
Dehnel described that when she still worked at Boxer, she was “always worried
about what was going to happen,” and it was “[u]sually tears before [she] got there and
tears when [she] left, but [she] still kept going.” In addition to the hotel’s loss of its
major client, Boxer had also put the hotel up for sale, adding to employees’ uncertainty.
Although not defined at trial, Sjogren’s Syndrome is an inflammatory disorder
54
with symptoms of dry eyes and dry mouth. Minn. Mining & Mfg. Co. v. Atterbury, 978
S.W.2d 183, 192 (Tex. App.—Texarkana 1998, pet. denied).
72
In early September 2019, Dehnel took out a loan against her home so that she would
be able to continue to care for her mother while looking for another job.
“[W]hether to award damages and how much is uniquely within the factfinder’s
discretion.” Golden Eagle Archery, 116 S.W.3d at 772. It is clear from the record that
Dehnel had an abundance of stressors in her life before her termination—her father’s
death, the ensuing probate litigation, her mother’s illness and her role as caregiver,
health issues, and her work environment after Hayes left Boxer—and that her stress
changed after her termination to reflect the additional concerns of the unemployed as
well as her depression, embarrassment, and humiliation stemming from being fired.
Specifically, Dehnel testified that after Boxer fired her, she was depressed, experienced
changes to her sleep, and stopped doing her normal daily activities.
The jury had the benefit of observing Dehnel as she testified about her
experience and mental anguish and from that observation could assess her emotional
demeanor, gain some insight into the severity of her suffering, and determine her
credibility on the question of compensatory damages. See Stone, 2023 WL 5766076, at
*6 (noting that the presence or absence of mental pain is inherently subjective and up
to the jury); Katy Springs, 476 S.W.3d at 595 (stating that mental-anguish recovery is
warranted when the plaintiff’s mental pain has risen to such a level that it has rendered
her incapable of dealing with certain everyday activities). And, as Dehnel points out, the
jury awarded $32,000 to her based not only on her emotional pain and suffering and
mental anguish but also for her inconvenience, her loss of enjoyment of life, and “other
73
noneconomic losses,” and Boxer does not specifically challenge or discuss these other
items. Cf. Tex. R. App. P. 38.1(i).
Based on this record, because the jury could have reasonably found that Dehnel
had suffered some mental anguish that was more than “mere worry, anxiety, vexation,
embarrassment, or anger,” in addition to her inconvenience, her loss of enjoyment of
life, and “other noneconomic losses” in its award, we overrule Boxer’s fourth issue.
IV. Back Pay
In its third issue, Boxer contends that Dehnel’s $87,000 back pay award was
erroneous because she had intended to quit the day she was fired. Dehnel responds that
Boxer’s back pay argument is an affirmative defense that Boxer failed to plead or prove
and that Boxer thereby failed to preserve this complaint. Boxer replies that Dehnel’s
intended resignation is not an affirmative defense but that, if it is, it was tried by
consent. 55
55
Both parties make additional arguments, but based on our resolution here, we
need not reach them. See Tex. R. App. P. 47.1. Further, in its reply brief, for the first
time, Boxer complains about the back pay calculation. Because Boxer did not raise this
argument in its opening brief, we will not consider it. See Kadow v. MAA, Watermark,
No. 02-22-00038-CV, 2022 WL 17841131, at *5 n.4 (Tex. App.—Fort Worth Dec. 22,
2022, no pet.) (mem. op.) (stating that the court could not consider additional issues
appellant raised “for the first time in her reply brief” and that such issues were not
preserved for review); Lorant v. 2016 Parkview Condos. Dev. LLC, No. 02-22-00032-CV,
2022 WL 16845110, at *4 n.11 (Tex. App.—Fort Worth Nov. 10, 2022, no pet.) (mem.
op.) (“Arguments may not be raised for the first time in a reply brief.”); see also Tex. R.
App. P. 38.3 (stating that the appellate court may consider and decide the case before a
reply brief is filed).
74
In its original answer to Dehnel’s lawsuit, Boxer made a general denial and raised
several affirmative defenses—including failure to mitigate—but it did not raise
Dehnel’s anticipated voluntary departure. See Gaddy v. Abex Corp., 884 F.2d 312, 318
(7th Cir. 1989) (stating that failure to mitigate is affirmative defense); Davalos v. Jacobsen
Div. of Textron, Inc., 11 F. Supp. 2d 1012, 1019 (E.D. Wis. 1998) (same); see also Allen v.
Int’l Truck & Engine Corp., No. 1:02-CV-00902-RLY-MJD, 2017 WL 1382610, at *5
(S.D. Ind. Apr. 18, 2017) (“[J]ust as with the affirmative defense of failure to mitigate,
an employer must bear the burden of proving that a back pay offset for a period of
disability is appropriate.”).
Dehnel points out that Boxer’s argument here is one that would allow it to avoid
the back pay damages. See Tex. R. Civ. P. 94 (listing “any other matter constituting an
avoidance or affirmative defense”). “If an affirmative defense or avoidance is not
expressly pleaded, the party cannot rely on the defense as a bar to liability.” Zorrilla v.
Aypco Constr. II, LLC, 469 S.W.3d 143, 155 (Tex. 2015); see MAN Engines & Components,
Inc. v. Shows, 434 S.W.3d 132, 136 (Tex. 2014) (discussing purpose of Rule 94 as a rule
of fairness that requires the defendant to identify affirmative defenses involving facts
distinct from the elements of the plaintiff’s claim so that the plaintiff may reasonably
prepare to rebut or explain them). Because an affirmative defense raises additional
issues of fact, Rule 94 demands that it appear in a pretrial pleading. MAN Engines, 434
S.W.3d at 137.
75
In her original petition, Dehnel alleged that she had been terminated based on
sex, on age, and in retaliation for her discrimination complaints. A decision to quit
before being fired might therefore—as argued by Boxer—bar an award of back pay
damages. See, e.g., E.E.O.C. v. Ilona of Hung., Inc., 108 F.3d 1569, 1572, 1579 (7th Cir.
1997) (op. on reh’g) (reversing back pay award where evidence “uncontrovertibly”
showed that employee planned to quit her job before she was fired in violation of Title
VII). 56 That is, Boxer’s argument shares the common characteristics of an affirmative
defense—an independent reason to bar recovery made not in defense but in avoidance
by “seek[ing] to add another ingredient to the mix that would defeat the [plaintiff’s]
claim.” MAN Engines, 434 S.W.3d at 136–37 (explaining that because an affirmative
56
Boxer cites the following constructive-discharge cases to support a related
argument that back pay is not available to Dehnel—Mallinson-Montague v. Pocrnick, 224
F.3d 1224, 1236–37 (10th Cir. 2000), Thorne v. City of El Segundo, 802 F.2d 1131, 1134
(9th Cir. 1986), Derr v. Gulf Oil Corp., 796 F.2d 340, 341–42 (10th Cir. 1986), and Odima
v. Westin Tucson Hotel, 53 F.3d 1484, 1495 (9th Cir. 1995)—but Dehnel was fired before
she could resign, unlike the plaintiffs in Mallinson-Montague and Derr, and she did not
complain about the denial of the opportunity for a career change, unlike the plaintiffs
in Thorne and Odima. In Derr, the Tenth Circuit explained that the no-back-pay-without-
constructive-discharge rule was based on the theory that an employee who quits (a
voluntary job departure) cannot secure back pay unless his employer constructively
discharged him. 796 F.2d at 342. That is, the plaintiff’s decision to quit and her ensuing
loss of wages cannot be properly attributed to her employer without her employer’s
having made working conditions so intolerable as to have resulted in a constructive
discharge. Id. at 344 (“[T]he question on which constructive discharge cases turn is
simply whether the employer by its illegal discriminatory acts has made working
conditions so difficult that a reasonable person in the employee’s position would feel
compelled to resign.”). This is unlike a case in which the plaintiff is actually terminated.
See, e.g., Palasota v. Haggar Clothing Co., 499 F.3d 474, 483 (5th Cir. 2007) (“Undisputedly
then, Palasota was entitled to back pay based on the accrual of his economic damage
during the period from his termination to the date of the trial.” (emphasis added)).
76
defense presents a situation where a plaintiff cannot recover even if her claims are true
because of some other fact that the defendant has pleaded as a bar, Rule 94 “demands
that it appear in a pretrial pleading”). We conclude that Boxer should have raised—but
did not raise—Dehnel’s having planned to quit as an affirmative defense. If the matter
was not tried by consent, then Boxer has waived this complaint. Cf. Pulliam v. Tallapoosa
Cnty. Jail, 185 F.3d 1182, 1184–87 (11th Cir. 1999) (holding mixed-motives affirmative
defense was sufficiently included in federal pretrial order, which gave the plaintiff
notice).
Rule of Civil Procedure 67 provides that if an issue not raised by the pleadings is
tried by the parties’ express or implied consent, it “shall be treated in all respects as if
[it] had been raised in the pleadings.” Tex. R. Civ. P. 67. To determine whether an issue
was tried by consent, we examine the record not for evidence of the issue, but rather
for evidence of trial of the issue. In re J.R., No. 02-23-00071-CV, 2024 WL 191211, at *6
(Tex. App.—Fort Worth Jan. 18, 2024, pet. denied) (mem. op.) (quoting In re A.B.H.,
266 S.W.3d 596, 600 (Tex. App.—Fort Worth 2008, no pet.) (op. on reh’g)). Trial by
consent is a doctrine that is only intended to cover the exceptional case in which it
clearly appears from the record as a whole that the parties tried the unpleaded issue; it
is not intended to establish a general rule of practice and should be applied with care.
Id.Boxer directs us to Dehnel’s direct testimony during which she discussed having
told her counselor about her plan to take out a loan because she had not yet found
77
another job and “just wanted out of the hotel business” and having told her counselor
on September 25 that her loan had come in and that she was “ready to terminate now.”
Boxer also directs us to Dehnel’s agreeing with her counsel during her trial testimony
that she had planned to quit on September 25 but that she had been terminated “a
couple of hours before [she] had planned on handing in [her letter of] resignation” and
that after she was terminated, she put her resignation letter on Owen’s desk and said,
“I was going to quit anyways.” Boxer directs us to her testimony that she tried to find
another job after she was terminated because she had not sufficiently researched getting
a real estate license and it “just wasn’t an option at that time” and that she eventually
found work at another hotel six to nine months before trial.
Boxer also directs us to Dehnel’s cross-examination testimony during which she
testified as follows:
• When asked if she told her counselor on September 25 that she was going to quit
on the day that she was actually discharged, Dehnel replied, “That is correct.”
• When asked if her plan on September 25 had been to quit, have a girls’ trip, see a
friend, get a motorcycle license, and train to become a realtor, Dehnel replied,
“Those were goals that I had set for myself, as my therapist told me I should,” and
she agreed that she had put the plan into motion to try to get herself “back together.”
Dehnel clarified that she had “probably made the decision to go on a girls’ trip longer
than before that because [they had] it once a year.”
• Regarding her September 9 counseling notes, Dehnel agreed that she had made a
plan to change her job because she “needed to change [her] job.”
• Regarding her September 16 counseling notes, Dehnel agreed that she told her
counselor that the loan had come in and that she was resigning in nine days, i.e.,
September 25.
78
“[A]n issue is not tried by consent merely because evidence regarding it is
admitted.” Bos v. Smith, 556 S.W.3d 293, 306–07 (Tex. 2018). And the doctrine of trial
by consent does not apply when the evidence of an unpleaded matter is relevant to the
pleaded issues because it would not be calculated to elicit an objection. Id. at 307. While
the above may have been some evidence that Dehnel planned to quit her job, it was
equally probative of why she felt pressure to quit and the context leading up to her
termination. See id. (holding no trial by consent as to defamation claim when
grandparent’s statements to DFPS were relevant to other issues in the trial). The jury
was entitled to weigh this evidence, judge Dehnel’s credibility, and decide whether to
award back pay as equitable relief, i.e., “that amount of wages and employment benefits
that [she] would have earned if she had not been subjected to [Boxer’s] unlawful
conduct less any wages, unemployment compensation or workers’ compensation
benefits she received in the interim.” The jury instruction defined “employment
benefits” to include monetary losses incurred as a result of the loss of health, life, dental,
or similar insurance coverage. The jury decided to award $87,000 in back pay to Dehnel.
See Tex. Lab. Code Ann. § 21.258(a)–(c).
Further, the record reflects that on February 22, 2022, seven days before
Dehnel’s testimony above, Boxer submitted a proposed jury charge question on
whether Dehnel had intended to quit around the time she was discharged. That
instruction was not included in the charge, and Boxer did not object to its omission
during the charge conference. See Tex. R. Civ. P. 274 (“Any complaint as to a question,
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definition, or instruction, on account of any . . . omission, or fault in pleading, is waived
unless specifically included in the objections.”). Based on this record, Dehnel’s plan to
quit as an affirmative defense was not tried by consent. We overrule Boxer’s third issue
without reaching its remaining arguments. See Tex. R. App. P. 47.1.
V. Exemplary Damages
In its second issue, Boxer argues that the trial court erred by entering an
exemplary-damages award without a unanimous verdict.
The controversial charge provisions are as follows:
Answer the following question only if you unanimously answered “Yes” to Question
No. 1 [age discrimination], Question No. 2 [sex discrimination] or Question
No. 3 [retaliation]. Otherwise, do not answer the following question.
To answer “Yes” to the following question, your answer must be unanimous.
You may answer “No” to the following question upon a vote of ten or more jurors.
Otherwise, you must not answer the following question.
QUESTION NO. 5:
Do you find by clear and convincing evidence that Boxer Property
Management Company engaged in the discriminatory practice that you
found in either Question No. 1, Question No. 2 or Question No. 3, with
malice or with reckless indifference to the right of Teresa R. Dehnel to be
free from such practices?
....
Answer “Yes” or “No.”
Answer: Yes.
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The instructions for signing the verdict certificate stated:
1. Unless otherwise instructed, you may answer the questions on a vote of
10 jurors. The same 10 jurors must agree on every answer in the charge.
This means you may not have one group of 10 jurors agree on one answer
and a different group of 10 jurors agree on another answer.
2. If 10 jurors agree on every answer, those 10 jurors sign the
verdict.
If 11 jurors agree on every answer, those 11 jurors sign the verdict.
If all 12 of you agree on every answer, you are unanimous and only
the presiding juror signs the verdict.
3. All jurors should deliberate on every question. You may end up
with all 12 of you agreeing on some answers, while only 10 or 11 of you
agree on other answers. But when you sign the verdict, only those 10 who
agree on every answer will sign the verdict.
The verdict certificate presented three options: a unanimous verdict, a
nonunanimous verdict of 11, and a nonunanimous verdict of 10. The verdict form is
checked by, “Our verdict is not unanimous. Eleven of us have agreed to each and every
answer and have signed the certificate below.” 57 Eleven jurors signed the certificate. On
the record, the presiding juror agreed with the trial court’s statements, “[Y]ou were not
unanimous, right?” and “11 of you agreed?” Neither party asked to poll the jurors to
57
Although Rule 226a has an optional instruction if a charge requires some
unanimity and an additional certificate to be “[u]sed when some questions require
unanimous answers” to certify that the jury was unanimous in answering particular
questions and that all of the jurors agreed to each of the answers, the optional
instruction and additional certificate were not used here. See Tex. R. Civ. P. 226a.
81
clarify the answers before the trial court released them. Cf. Tex. R. Civ. P. 294 (stating
that any party shall have the right to have the jury polled).
Based on Oscar Renda, which presented the same unanimity problem, Boxer is
entitled to prevail on this issue because “the statutory burden to obtain unanimous
findings belongs to the party seeking exemplary damages, [and] that party must ensure
that the charge asks questions that satisfy this requirement.” 689 S.W.3d at 312–13. The
burden to secure a unanimous verdict is on the plaintiff and may not be shifted. Id. at
307. And “[b]ecause the plaintiff bears the burden to secure unanimity, it is the plaintiff
who must seek clarification to the extent that it asserts that the divided verdict
inaccurately reflects the jury’s vote as to a particular question.” Id. at 311. That is,
Dehnel had the burden to provide the correct jury charge on the exemplary-damages
question, to object to the charge’s deficiencies before submission, and to request further
deliberations before the jury was discharged.58 See generally id. at 307, 311–13. Because
she did not do so, we sustain Boxer’s second issue.
58
In her appellee’s brief and in a post-submission letter brief, Dehnel refers us to
a juror’s post-verdict sworn declaration that she attached to her response to Boxer’s
motion for JNOV. In the declaration, the juror purports to explain his vote that made
the verdict nonunanimous. But Rule of Civil Procedure 327(b) prevents us from
considering this declaration. See Tex. R. Civ. P. 327(b) (precluding testimony about “any
matter or statement occurring during the course of the jury’s deliberations or to the
effect of anything upon . . . [a] juror’s mind or emotions as influencing him to asset to
or dissent from the verdict concerning his mental processes in connection therewith”
except for any outside improper influence).
82
VI. Attorney’s Fees
Boxer’s fifth issue and Dehnel’s cross-issue pertain to her attorney’s-fee award.
In its fifth issue, Boxer argues that Dehnel cannot recover attorney’s fees because
she is not entitled to recover on any of her claims and because the award is
unreasonable, conditioning its argument on our reversal of both Dehnel’s $250,000
exemplary-damages award and her $87,000 back pay award. In her single cross-issue,
Dehnel argues that the trial court abused its discretion by awarding an amount of
attorney’s fees that was too low when compared to her evidence.
As set out above in our analysis, Dehnel was entitled to recover on her retaliation
claim, and we have not reversed her back pay award. However, based on the divided
jury verdict, she was not entitled to the $250,000 exemplary-damages award. We sustain
Boxer’s fifth issue and remand the attorney’s-fee issue to the trial court for
recalculation. 59 In light of this disposition, Dehnel’s cross-issue on the amount of her
attorney’s-fee award is no longer ripe for our review. Accordingly, we do not reach the
merits of her cross-issue. See Tex. R. App. P. 47.1.
59
In its findings of fact and conclusions of law and in its amended findings of
fact and conclusions of law on attorney’s fees, the trial court recited that it had
considered—among other things—“the amount involved and the results obtained.” See
generally Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 498–502
(Tex. 2019); Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997)
(op. on reh’g). It is unclear whether the trial court included the $250,000 exemplary-
damages award in its calculation of the lodestar and in determining that an enhancement
was not appropriate. See Rohrmoos, 578 S.W.3d at 500–02.
83
VII. Conclusion
Having sustained Boxer’s second and fifth issues, we reverse the portion of the
judgment awarding $250,000 in exemplary damages and render a take-nothing judgment
on exemplary damages. We also reverse the $173,250 attorney’s-fee award and remand
the attorney’s-fee issue to the trial court for recalculation. Having overruled Boxer’s
first, third, and fourth issues, we affirm the remainder of the trial court’s judgment.
/s/ Wade Birdwell
Wade Birdwell
Justice
Delivered: July 3, 2024
84