Dale L. Johnson v. National Oilwell Varco, LP

Affirmed and Opinion filed December 11, 2018.
In The
Fourteenth Court of Appeals
NO. 14-16-00440-CV
DALE L. JOHNSON, Appellant
V.
NATIONAL OILWELL VARCO, LP, Appellee
On Appeal from the 152nd District Court
Harris County, Texas
Trial Court Cause No. 2013-62983
OPINION
Dale L. Johnson appeals from an adverse jury verdict in his race-
discrimination, employment-termination case against National Oilwell Varco, LP
(“NOV”). In seven issues, Johnson contends that the trial court abused its discretion
in (1) denying his motion for new trial; (2) imposing time limits in the middle of
trial; (3) refusing to charge the jury in keeping with a federal pattern jury instruction;
(4) finding that NOV only negligently, as opposed to intentionally, destroyed video
evidence; (5) failing to order a remedy for destruction of the evidence that would
have restored Johnson’s ability to prove his case; (6) refusing to sanction NOV; and
(7) admitting certain evidence while excluding other evidence. We affirm.
Background
In June 2013, Johnson, who is African-American, was terminated from his
position as a machinist at NOV’s West Little York facility, where he had worked for
almost 23 years. NOV stated that the reason for the termination was a violation of
its “lock-out, tag-out” (LOTO) procedures. On June 6, Johnson was working at his
machine, a Vertical Turning Center or VTC, when a maintenance employee, Henry
Sierra, placed a red tag on the control panel of the machine. The tag stated “Caution
Maintenance in Progress,” and according to NOV, such tags were used to indicate
that a machine should not be operated until the tag was removed or the operator was
told to run the machine by a maintenance employee or supervisor.
At the time, Sierra needed to perform repairs on a conveyor that fed parts into
the VTC. According to Johnson and other witnesses, Sierra only needed to tag the
conveyor to perform the work safely, he did not need to place the tag on the control
panel of the VTC. Tagging just the conveyor would have allowed Johnson to
continue working. Moreover, Johnson and others stated that Sierra should have first
obtained permission from a supervisor before shutting Johnson’s machine down in
this manner. After Sierra placed the tag, Johnson, who was purportedly working on
a rush job, closed the door of his machine and prepared it to begin operating.1 NOV
and its witnesses maintained that this was a serious breach of LOTO rules and a
safety hazard that placed Pablo Amador—a maintenance worker who had begun
working on the conveyor, Sierra, and potentially other employees at risk of injury.
1
Machinists apparently use the phrase “setting the machine” to describe this action.
2
There was considerable disagreement at trial regarding whether Johnson or Sierra
had violated LOTO policy and whether any alleged violation was sufficient to
warrant termination.
Sierra reported Johnson’s alleged LOTO violation to Johnson’s supervisor,
Ian Laing, who, after asking Johnson about the incident, reported it in an email to
the machine shop manager, Kevin Evans. Subsequently, after reviewing written
statements by Sierra and Amador, and purportedly viewing security video of the
incident, Laing (Caucasian), Evans (Asian), and Human Resources Manager Gail
Garcia (Caucasian) agreed that Johnson’s employment should be terminated. The
termination was effective June 13, 2013.
Johnson thereafter filed a charge with the Equal Employment Opportunity
Commission (EEOC) and the present lawsuit, alleging that race was a motivating
factor in his termination. Among other things, Johnson asserted that Sierra, who is
Hispanic, had a history of using a racial epithet towards Johnson, and Evans, who is
Asian, had treated Johnson and another African-American machinist differently than
he treated other non-African-American employees in the machine shop. In a prior
lawsuit, Evans had also been accused of retaliation against an employee who had
made an allegation of discrimination at a previous company where Evans had
worked. Johnson further asserted that Laing also had treated him differently than
Laing did other employees.
Prior to trial, it was revealed that the security video that purportedly showed
the incident that led to Johnson’s termination had been destroyed. As will be
discussed in more detail below, there apparently had either been a problem with
copying the video onto a USB drive or it had been deleted or overwritten after being
copied. As will also be discussed below, the loss of the video was the subject of
multiple attempts at recovery, a spoliation claim by Johnson, and requests for
3
sanctions. The trial court determined that NOV negligently caused the destruction
of the video but declined to find that NOV intentionally destroyed the video. The
trial court therefore declined to give a spoliation instruction to the jury. Although the
trial court ordered NOV to pay for the attempts to recover the video, it did not
otherwise sanction NOV for its conduct, and, in fact, denied all five of Johnson’s
motions for sanctions, as well as one motion for sanctions filed by NOV against
Johnson’s attorney.
Counsel for both sides originally told the judge that they thought the case
could be tried in four days, but when examination of the first witness took longer
than expected, the judge raised the issue of time limits for the remainder of the trial.
The judge expressed concern that one of the jurors had prepaid vacation plans that
would be jeopardized if the trial went longer than initially expected. After
consultation with counsel, Johnson was given 7-8 hours to complete his case, and
NOV was given 6-7 hours to complete its case. Ultimately, the court granted Johnson
additional time to question at least two witnesses, but Johnson did not present all of
the witnesses he had originally listed as testifying.
Also during trial, the court admitted into evidence Johnson’s EEOC charge
against NOV over Johnson’s objection. NOV sought with this evidence to show that
Johnson had changed or supplemented his allegations over time. Contending that
NOV had thus opened the door to such evidence, Johnson sought to introduce
evidence concerning how other employees had been treated by NOV under allegedly
similar circumstances. NOV objected that these comparators were not sufficiently
similar to support admission, and the trial court sustained the objection.
At the close of evidence, the jury was asked, among other things, whether race
was a motivating factor in NOV’s decision to discharge Johnson. The jury charge
included an instruction explaining what constitutes a “motivating factor.” Johnson
4
additionally requested that the charge include a “permissive-pretext” instruction.
The requested instruction was pulled from the Fifth Circuit Pattern Jury Instructions
and would have informed the jury that: “If you find that the reason [NOV] has given
for firing is unworthy of belief, you may, but are not required to, infer that Johnson’s
race was a motivating factor in [NOV]’s decision to terminate him.” The trial court
denied Johnson’s request. The jury then returned a 10-2 verdict favoring NOV, and
the trial court entered final judgment in keeping with the verdict. The trial court
denied Johnson’s motion for new trial.
Discussion
As stated above, Johnson contends that the trial court erred in (1) denying his
motion for new trial; (2) imposing time limits; (3) refusing to instruct the jury on
permissive pretext; (4) failing to find that NOV intentionally destroyed the video;
(5) failing to order a sufficient remedy for the destruction of the video; (6) refusing
to sanction NOV; and (7) admitting the EEOC charge while excluding comparator
evidence. Because Johnson’s first issue merely congregates arguments made under
other issues, we will address that issue last.
I. Time Limits
In his second issue, Johnson contends that the trial court erred in imposing
time limits on the presentation of evidence. Johnson’s main complaints are that the
limits were imposed after trial had already begun and to preserve a juror’s prepaid
vacation. We conclude that Johnson failed to preserve his complaints in the trial
court and, even if Johnson had preserved the issue, the trial court did not abuse its
discretion by imposing time limits under the circumstances.
A. Governing Law
Pursuant to Texas Rule of Evidence 611, trial courts “should exercise
5
reasonable control over the mode and order of interrogating witnesses and presenting
evidence so as to: (1) make those procedures effective for determining the truth; (2)
avoid wasting time; and (3) protect witnesses from harassment or undue
embarrassment.” Tex. R. Evid. 611(a). Moreover, every trial court has the inherent
power to control the disposition of the cases on its docket “with economy of time
and effort for itself, for counsel, and for litigants.” Hoggett v. Brown, 971 S.W.2d
472, 495 (Tex. App.—Houston [14th Dist.] 1997, pet. denied) (quoting Landis v. N.
Am. Co., 299 U.S. 248, 254 (1936)). “How this can best be done calls for the exercise
of judgment, which must weigh competing interests and maintain an even balance.”
Metzger v. Sebek, 892 S.W.2d 20, 38 (Tex. App.—Houston [1st Dist.] 1994, writ
denied) (quoting Landis, 299 U.S. at 254–55). Accordingly, the trial court’s inherent
power, together with applicable rules of procedure and evidence, accord trial courts
broad, but not unfettered, discretion in managing trials. State v. Gaylor Inv. Tr.
P’ship, 322 S.W.3d 814, 819 (Tex. App.—Houston [14th Dist.] 2010, no pet.);
Hoggett, 971 S.W.2d at 495; Metzger, 892 S.W.2d at 38.
B. Additional Background
Prior to the start of trial, counsel for both sides represented to the trial judge
that the case would take four days to try. On the basis of these representations, the
judge allowed someone to serve on the jury who had a prepaid vacation scheduled
that would allow for five to five-and-a-half days of testimony plus another day for
deliberations.2 Although the judge disqualified other potential jurors due to time
conflicts, he stated that he would not disqualify that particular potential juror because
2
The record on appeal does not include the voir dire examination of the jury panel or
related proceedings, but the trial judge related the pertinent facts during later discussions, and
counsel either agreed with or did not note any inaccuracies in the judge’s recounting. We presume
that the missing portions of the record would support the trial court’s judgment. See, e.g., Aduli v.
Aduli, 368 S.W.3d 805, 819 (Tex. App.—Houston [14th Dist.] 2012, no pet.).
6
counsel had represented that the trial would be over in time for the potential juror to
leave on his vacation. No one asked the potential juror when his vacation would end.
Johnson’s counsel did not object to the potential juror, and he was placed on the jury.
By the end of the first day of testimony, examination of the first witness
(Johnson himself) was taking considerably longer than expected, in part due to the
number of bench conferences that were being requested. The judge expressed
concern that the trial would not be completed by the time the juror needed to leave
for vacation and also noted that “I think everybody in this courtroom wants to get
this over with for a lot of different reasons but not the least of which [is] the
stress . . . litigation has on people.” NOV’s counsel stated that he also had a conflict
if the case went longer than anticipated.
The judge therefore discussed with counsel for both sides how to get the case
tried within the budgeted time. Together, counsel and the judge went through the
estimated time needed for the examination of each of the expected remaining
witnesses. Johnson’s counsel stated that she respected the court’s “right to pare down
the case” and actively participated in the discussion. When the estimates exceeded
the available time, the judge suggested four possibilities: impose time limits on
testimony, declare a mistrial, proceed with 11 jurors, or pause the trial while the juror
was on vacation. Both sides staunchly agreed that they did not want a mistrial. The
judge, however, indicated that the court may not have enough time to complete the
case if the examination of witnesses continued to exceed time estimates. NOV’s
counsel offered ways he could pare down his case, and he offered to accept less time
than Johnson, so long as the time limitations were strictly enforced. The judge
dismissed counsel for the day, telling Johnson’s counsel to return the next day with
ideas on how she could pare down her case. The court again indicated that he would
have to consider a mistrial if the case could not be completed in the time allotted.
7
The next day, after the completion of Johnson’s testimony, the judge began
the discussion concerning time by stating that he was “probably” going to impose
time limits, allotting 7-8 hours for Johnson to finish his examination of witnesses,
and 6-7 hours for NOV.3 Johnson’s counsel then stated her only express objection
to time limits: “for the record, I’m opposed to the time limit.” The trial judge
requested useable, equitable alternatives, and Johnson’s counsel suggested NOV
could concede the amount of attorney’s fees Johnson would be awarded if Johnson
succeeded on the merits. When NOV’s counsel responded by suggesting that, if
necessary, the amount of attorney’s fees could be tried to the bench after the jury
returned its verdict, Johnson’s counsel stated that she was about to propose the same
thing.
The following exchange then occurred:
THE COURT: [Johnson’s counsel], do you agree to try the attorney’s
fees, in the event you are the prevailing . . . party[,] to the Court after
the jury has rendered a Verdict?
[Johnson’s Counsel]: Yes.
THE COURT: Thank you. . . . Tell me what else you think is a more
equitable situation. What else would you do in this situation? What’s
your suggestion?
[Johnson’s Counsel]: We’ve already shaved off an hour.
THE COURT: No. I think we shaved off two hours. I legitimately think
we’ve shaved off two hours. The question here is can you shave—if
there—if I say there are 15 hours of trial time to be divvied up and I do
eight to the Plaintiff and seven to the Defendant, that, by the way,
includes whatever is left on Mr. Johnson, which, by the way, I think
y’all have had enough from Mr. Johnson.
3
As indicated, the time limits were imposed after Johnson had testified over two days. The
limits also did not include the parties’ opening or closing arguments or voir dire of the jury panel.
8
[NOV’s Counsel]: Oh, I’ve got 15 minutes, your Honor.
THE COURT: And that’s—and that’s about it.
[NOV’s Counsel]: Yes, sir.
THE COURT: And, in fact, I would say that we need to get finished
with Mr. Johnson in 30 minutes in on Monday.
[NOV’s Counsel]: I have 15.
[Johnson’s Counsel]: 15 for the Plaintiff and 15 for the Defendant.
[NOV’s Counsel]: Fine. You can hold me to it, Judge.
THE COURT: You good with that, [Johnson’s counsel]?
[Johnson’s Counsel]: Yes. I am trying to be good with it.
THE COURT: It makes you become very efficient. So, here’s what I’m
going to do: I’m going to proceed with the thought that we have 15
hours of trial time on Monday and Tuesday.
The trial judge then mentioned speaking to the jury about taking shorter breaks and
the discussion ended.
Thereafter, the subject of time limitations came up sporadically as the court
reminded counsel that they were running out of time or needed to stick to the most
pertinent questions. On at least two occasions, the judge honored Johnson’s
counsel’s request for additional time to question a witness. On appeal, Johnson
complains that he was unable to put on five of his twenty listed witnesses and had to
cut short the examination of several others.
C. Failure to Preserve Complaint
To preserve a complaint for appellate review, a party must make a timely and
sufficiently specific request, objection, or motion stating the specific grounds for the
desired ruling if they are not apparent from the context. Tex. R. App. P. 33.1(a).
9
Failure to make a timely, specific objection to time limits imposed by a trial court
waives any error. Schwartz v. Forest Pharmaceuticals, Inc., 127 S.W.3d 118, 126–
27 (Tex. App.—Houston [1st Dist.] 2003, pet. denied).
Although Johnson’s counsel at one point stated that she was “opposed to the
time limit,” she did not cite any legal basis for this objection. To the contrary,
counsel had already agreed that the court had the “right to pare down the case.” More
importantly, after stating her opposition, counsel appeared to agree that trying
attorney’s fees to the bench would cut sufficient testimony to enable the trial to
conclude in the time allotted. Johnson does not point to any place in the record where
counsel renewed her objection or attempted to present a witness that the trial court
did not permit. It is also worth noting that counsel did not complain when the juror—
whose vacation schedule was the primary time constraint—was placed on the jury.
Accordingly, Johnson did not preserve his complaint regarding the trial court’s
imposition of time limits. See, e.g., Zurita v. SVH-1 Partners, Ltd., No. 03-10-00650-
CV, 2011 WL 6118573, at *11–12 (Tex. App.—Austin Dec. 8, 2011, pet. denied)
(holding party waived complaint regarding time limits imposed mid-trial by failing
to make a timely, specific objection); State v. Reina, 218 S.W.3d 247, 254 (Tex.
App.—Houston [14th Dist.] 2007, no pet.) (same).
D. No Abuse of Discretion
Additionally, even if Johnson had preserved his complaint regarding the time
limitations, the trial court did not abuse its discretion under the circumstances. As
set forth above, when examination of the first witness went considerably longer than
expected, the trial judge found himself in a difficult position. Based on the parties’
mutual representation that the trial would take approximately four days, the judge
had allowed a juror on the jury who had a prepaid vacation scheduled to commence
at a time that would allow for approximately five to five-and-a-half days of
10
testimony plus time for deliberations. Neither side had objected to putting that juror
on the jury. The judge therefore discussed the issue of time with the attorneys,
working diligently to determine how much time was still needed and how the
presentation of evidence could be pared down to fit the time available.
Although the juror’s vacation schedule appears to have been the main catalyst
for the trial judge’s concern, the judge also indicated that it was in everyone’s interest
to complete the proceedings efficiently, and NOV’s counsel stated that he also had
a conflict if the trial continued past the time allotted. Moreover, Johnson’s counsel
acknowledged that making the juror miss his prepaid vacation would not be a good
idea, as it might make him angry.
In hindsight, Johnson urges that the court should have more strongly
considered pausing the trial and then reconvening after the juror returned from
vacation, but counsel did not urge this remedy during trial. The trial judge may also
have considered the inconvenience and disruption that pausing the trial before
completion would likely have caused to the court itself, the parties, and the jurors.
See Hoggett, 971 S.W.2d at 495 (explaining that a trial court has inherent power to
control the disposition of cases on its docket “with economy of time and effort”);
see also Reina, 218 S.W.3d at 255 (noting, in holding trial judge did not err in
refusing to grant party more time to examine witness, the judge considered the effect
that an extension would have on jurors). The judge indicated that if the case was
going to take much longer to try, it would have to be moved six months further down
the court’s docket, presumably because the docket was crowded with other matters.
These factors may have led the judge to choose the option of time limits rather than
pausing and later reconvening the trial. And regardless, the availability of another
option alone does not mean that the judge abused his discretion in imposing time
limits.
11
Johnson additionally emphasizes that the time limits were imposed after the
trial had already begun; however, he does not cite any authority suggesting this was
improper. As happened here, the pace of a trial—and the resulting need for time
limits—may only become apparent after a trial has begun. See, e.g., Walker v.
Hitchcock I.S.D., No. 01-11-00797-CV, 2013 WL 3771302, at *7 (Tex. App.—
Houston [1st Dist.] July 16, 2013, no pet.) (holding trial court did not abuse its
discretion in imposing time limits mid-trial).
The record demonstrates that the judge acted with diligence and fairness in
considering the options and dividing the remaining time, even giving Johnson an
hour longer to present his case than NOV received and further extending that time
when Johnson requested additional time to examine two of the witnesses. See
Metzger, 892 S.W.2d at 38 (stating that a judge must exercise his or her judgment in
managing trials while weighing competing interests and maintaining an even
balance). Under the circumstances presented, the trial court’s decision to impose
time limits during trial was not arbitrary, unreasonable, or without reference to
guiding principles. See Gaylor Inv., 322 S.W.3d at 816, 819. Accordingly, the trial
court did not abuse its discretion, and we overrule Johnson’s second issue.
II. Permissive Pretext Instruction
In his third issue, Johnson contends that the trial court erred in refusing to
include a permissive-pretext instruction in the jury charge. Question 1 of the charge
read as follows:
QUESTION 1
Was race a motivating factor in Defendant’s decision to discharge
Plaintiff?
A “motivating factor” in an employment decision is a reason for making
the decision at the time it was made. There may be more than one
motivating factor for an employment decision.
12
In addition to the “motivating factor” instruction, which was included, Johnson
requested a permissive-pretext instruction that read: “If you find that the reason
Defendant has given for firing is unworthy of belief, you may, but are not required
to, infer that Plaintiff’s race was a motivating factor in Defendant’s decision to
terminate him.” Johnson asserts that because the claim submitted in Question 1 was
under federal law, the permissive-pretext instruction was required pursuant to
precedent of the Fifth Circuit Court of Appeals and the Fifth Circuit Pattern Jury
Instructions.
A. Standards of Review
A trial court has considerable discretion in determining which jury
instructions are necessary and proper in a particular case. In re V.L.K., 24 S.W.3d
338, 341 (Tex. 2000). We therefore review a trial court’s refusal to submit a
particular instruction for an abuse of discretion. Id. A jury should not be burdened
with surplus instructions, even those that accurately state the law. Arocha v. State
Farm Mut. Auto. Ins. Co., 203 S.W.3d 443, 445 (Tex. App.–Houston [14th Dist.]
2006, no pet.). When a trial court refuses to submit a requested instruction, the
question on appeal is whether the request was reasonably necessary to enable the
jury to render a proper verdict. See Tex. R. Civ. P. 277 & 278; Tex. Workers’ Comp.
Ins. Fund v. Mandlbauer, 34 S.W.3d 909, 911 (Tex. 2000). We may reverse and
remand based on jury-charge error only if it was reasonably calculated and probably
did cause the rendition of an improper judgment, considering the pleadings, the
evidence presented at trial, and the charge in its entirety. See Tex. R. App. P.
44.1(a)(1); Island Recreational Dev. Corp. v. Republic of Tex. Sav. Ass’n, 710
S.W.2d 551, 555 (Tex. 1986).
B. Johnson’s Authority Is Not Controlling
In support of his position, Johnson principally relies upon the Fifth Circuit’s
13
opinion in Ratliff v. City of Gainesville, Tex., 256 F.3d 355 (5th Cir. 2001). As an
intermediate Texas court of appeals, we are not bound to follow precedent from the
Fifth Circuit even on matters of federal law. See Penrod Drilling Corp. v. Williams,
868 S.W.2d 294, 296 (Tex. 1993). We may consider Fifth Circuit opinions as
persuasive authority but are only bound to follow precedent on federal matters from
the United States and Texas supreme courts. Id. Neither supreme court has stated an
opinion on whether a permissive-pretext instruction is necessary in a Title VII
discrimination case. Moreover, as will be discussed below, the federal circuits have
split on this issue, and a subsequent panel of the Fifth Circuit has disagreed with the
Ratliff panel regarding whether the instruction is required. See Kanida v. Gulf Coast
Med. Pers. LP, 363 F.3d 568, 574-77 (5th Cir. 2004) (noting split among circuits,
disagreeing with Ratliff, following it anyway as precedential, but holding any error
in failing to instruct the jury was harmless); see also Estrada v. City of San Antonio,
452 F. App’x 573, 575 (5th Cir. 2011) (following both Ratliff and Kanida).
Johnson’s citation to the Fifth Circuit Pattern Jury Instructions is equally
unavailing. The pattern instructions do not have the force of law and need not be
followed even by federal district courts within the Fifth Circuit’s jurisdiction. See
United States v. Porter, 542 F.3d 1088, 1097 (5th Cir. 2008); United States v.
Williams, 20 F.3d 125, 132 (5th Cir. 1994).
C. Issue of First Impression
As this is an issue of first impression in our court, we now examine authority
both holding the instruction is required and concluding that the instruction is not
required. In Ratliff, the case Johnson relies upon, a panel of the Fifth Circuit
concluded that a permissive-pretext instruction was required by extension of
principles set forth by the United States Supreme Court in Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133 (2000). In Reeves, the Court clarified the
14
legal burden of production a Title VII discrimination plaintiff must meet in order to
have his or her case go to a jury, explaining that “a plaintiff’s prima facie case [of
discrimination], combined with sufficient evidence to find that the employer’s
asserted justification is false, may permit the trier of fact to conclude that the
employer unlawfully discriminated.” 530 U.S. at 146-48.
Concerned that in the absence of a permissive-pretext instruction, jury
deliberations would “depend on whether the jurors are smart enough or intuitive
enough to realize that inferences of discrimination may be drawn from the evidence
establishing plaintiff’s prima facie case and the pretextual nature of the employer’s
proffered reasons for its actions,” the panel in Ratliff concluded that “[i]t does not
denigrate the intelligence of our jurors to suggest that they need some instruction in
the permissibility of drawing that inference.” 256 F.3d at 361 n.7 (quoting Smith v.
Borough of Wilkinsburg, 147 F.3d 272, 281 (3d Cir.1998)).
In Kanida, a subsequent panel of the Fifth Circuit criticized the Ratliff panel’s
extension of Reeves and conclusion that an instruction was necessary on five
grounds. 147 F.3d at 574-77. First, Reeves only addressed the proper analysis in
directed verdict and summary judgment cases and not in jury trials. Second, nothing
in Reeves indicates an intention to change what a plaintiff must ultimately prove,
i.e., that the adverse employment action was motivated by actual discriminatory
intent.4 Third, a jury may make numerous inferences from the evidence and requiring
a specific instruction on just one permissible inference risks confusing the jury.
Fourth, the jury in Kanida received proper instructions regarding the ultimate legal
question and that it was permitted to draw reasonable inferences justified by the
4
As the Fifth Circuit recognized in both Ratliff and Kanida, the permissive-pretext
instruction is “only an evidentiary instruction, and to prevail employees must prove that the
employer’s actions were taken because of the prohibited motivation.” Kanida, 363 F.3d at 573
(citing Ratliff, 256 F.3d at 359 n.3).
15
evidence. And fifth, the plaintiff in Kanida was free to argue that actual
discriminatory intent was the proper inference to draw from evidence that the
employer’s purported reasons for its actions were mere pretext.5
Other federal circuits have split on this question, taking similar positions to
those found in either Ratliff or Kanida. Compare Townsend v. Lumbermens Mut.
Cas. Co., 294 F.3d 1232 (10th Cir. 2002), Smith v. Borough of Wilkinsburg, 147
F.3d 272 (3d Cir. 1998), and Cabrera v. Jakabovitz, 24 F.3d 372 (2d Cir. 1994)
(holding permissive-pretext instruction is required), with Browning v. United States,
567 F.3d 1038, 1041 (9th Cir. 2009), Conroy v. Abraham Chevrolet–Tampa, Inc.,
375 F.3d 1228 (11th Cir. 2004), Moore v. Robertson Fire Prot. Dist., 249 F.3d 786
(8th Cir. 2001), Fite v. Digital Equip. Corp., 232 F.3d 3 (1st Cir. 2000), and Gehring
v. Case Corp., 43 F.3d 340 (7th Cir. 1994) (holding or suggesting a permissive-
pretext instruction is not required). The one other Texas court of appeals to address
the issue has concluded that the instruction is not required. See Collie v. IBEX
Staffing Sols., Inc., No. 04-14-00269-CV, 2015 WL 1094825, at *3-4 (Tex. App.—
San Antonio March 11, 2015, no pet.) (mem. op.) (tracking the reasoning in Kanida).
We join our sister court. Under Texas law, even instructions that are proper
statements of the law are not required, and a failure to include a requested instruction
constitutes reversible error only when the instruction in question was reasonably
necessary to enable the jury to render a proper verdict. See Tex. R. Civ. P. 277 &
278; Mandlbauer, 34 S.W.3d at 911; Arocha, 203 S.W.3d at 445. We agree with the
panel in Kanida that the United States Supreme Court’s analysis in Reeves does not
5
As mentioned above, the Kanida panel found itself bound by the precedent in Ratliff that
the instruction was required; it therefore followed Ratliff while calling for en banc consideration
of the issue. See Kanida, 363 F.3d at 574-77. The Kanida panel went on to hold, however, that the
trial court’s error in not including the permissive-pretext instruction was harmless. Id. at 578. As
stated, we are not bound by Fifth Circuit precedent. See Penrod Drilling, 868 S.W.2d at 296.
16
mandate or suggest that a permissive-pretext instruction should be given. Kanida,
147 F.3d at 574-76. As in Kanida, the jury here was properly instructed both
regarding Johnson’s ultimate burden and the jury’s own ability to draw reasonable
inferences from the evidence. Id. at 577. Johnson was also able to and did explain to
the jury in closing argument how it could infer discriminatory intent from the
evidence. See id. Under the circumstances, the trial judge may have reasonably
concluded that including a permissive-pretext instruction could have caused juror
confusion regarding what inferences should or should not be drawn from the
evidence. See id. at 576. Such a specific instruction was not reasonably necessary
for the jury to render a proper verdict. Consequently, the trial judge did not abuse
his discretion. In re V.L.K., 24 S.W.3d at 341.
We overrule Johnson’s third issue.
III. Destruction of Video Evidence
In his fourth issue, Johnson asserts that the trial court abused its discretion in
determining that NOV only negligently, as opposed to intentionally, destroyed the
video evidence that purportedly showed the incident that led to Johnson’s
termination. In issue five, Johnson contends that the trial court erred in failing to
order a remedy for destruction of the video that would have restored Johnson’s
ability to prove his case. After a hearing on spoliation, the trial court determined that
NOV negligently destroyed the video, or allowed it to be destroyed, and ordered the
parties not to discuss the video, but the court refused to give the jury an instruction
on spoliation.
A. Law on Spoliation
It is a fundamental tenet of our legal system that trials should be decided on
the merits, but when one party destroys evidence or permits evidence to be
17
destroyed, this can make fair presentation of the merits difficult. Brookshire Bros. v.
Aldridge, 438 S.W.3d 9, 13, 16 (Tex. 2014). Conversely, the imposition of severe
sanctions can shift the focus of a case from the merits to the gravity of the spoliating
party’s improper conduct. Id. at 13. A spoliation jury instruction—which informs
the jury that it must presume that the missing evidence would have harmed the
spoliating party’s position—is a severe sanction. Id. at 13, 22. Indeed, the “very
purpose” of the spoliation instruction is to “nudge or tilt the jury toward a finding
adverse to the alleged spoliator.” Id. at 17 (quoting Wal-Mart Stores, Inc. v. Johnson,
106 S.W.3d 718, 724 (Tex. 2003)). Accordingly, a spoliation instruction is
warranted only when (1) the spoliating party acted with specific intent to conceal
discoverable evidence and a less severe remedy would be insufficient to reduce the
prejudice to the nonspoliating party or (2) the spoliating party negligently failed to
preserve evidence and the nonspoliating party has thereby been deprived of any
meaningful ability to present a claim or defense. Id at 14.
Whether a party spoliated evidence and whether a particular remedy is
appropriate are questions of law for the trial court. Id. at 14, 20. We review the trial
court’s determinations on these issues under an abuse of discretion standard. Id. at
27.
To hold that a party spoliated evidence, a trial court must find that the party
had a duty to preserve the evidence and intentionally or negligently breached that
duty. Id. at 14. Any remedy imposed for spoliation must have a direct relationship
with the offensive conduct and the offender and be no more severe than necessary
to satisfy its legitimate purpose. See id. at 21. The purpose of any sanction for
spoliation is “to impose an appropriate remedy so that the parties are restored to a
rough approximation of what their positions would have been were the evidence
available.” Id. at 18 (citing Wal–Mart Stores, 106 S.W.3d at 721).
18
When the proper standard of review is abuse of discretion, challenges to the
sufficiency of the evidence are not independent grounds for reversal but instead are
factors to be considered in determining whether the trial court abused its discretion.
In re J.R.P., 526 S.W.3d 770, 777 (Tex. App.—Houston [14th Dist.] 2017, no pet.).
Evidence is legally sufficient if it would enable reasonable and fair-minded people
to reach the decision under review. Id. Evidence is factually sufficient if it is not so
contrary to the overwhelming weight of the evidence as to be clearly wrong and
unjust. Id. The factfinder is the sole judge of the witnesses’ credibility and the weight
to be given their testimony, and we may not interfere with the factfinder’s resolution
of conflicts in the evidence. Id.
After assessing the sufficiency of the evidence, we determine whether, based
on the evidence, the trial court made a reasonable decision. Id. We will affirm the
decision unless it is arbitrary or unreasonable or without reference to guiding rules
or principles. Id.
B. Additional Background
At a hearing on Johnson’s motion for a spoliation instruction, the trial court
heard from six witnesses regarding the loss of the video. Garcia, Evans, and another
NOV employee, Harvey Sterling, viewed the video from a security system server.
Sterling’s description of the video largely matched a timeline of the video that Garcia
had emailed to Laing on the same day that she viewed the video. Evans stated that
he considered the video cumulative of statements made by Johnson, Sierra, and
Amador.
According to Sterling, after Garcia asked him to make a copy of the video, he
gave the camera technician a USB drive on which to make a copy, and the technician
returned the USB drive on the same day. Sterling stored the USB drive in an
unlocked file cabinet, but Garcia never retrieved or otherwise obtained it. After
19
Johnson filed his EEOC charge, Sterling retrieved the USB drive but was unable to
get the video to play.6 Sterling then asked an NOV IT employee, Jonathan
McDonald, to see if he could pull the video data file from the drive.7 McDonald
testified that although he believed he was able to recover the data file, it was not
playable. He then sent the USB drive to two data recovery companies that were also
unable to recover a playable video file. The server on which the video was originally
recorded was set to delete files automatically after a period of time, so the original
data was no longer available by this time.
According to Johnson, when he requested the video in September 2014, NOV
initially responded just that the video was “unavailable” but then subsequently
clarified that it had been overwritten after 21 days. Johnson further asserts that NOV
did not reveal the existence of the USB drive until Johnson deposed Sterling.8
Johnson thereafter made the USB drive the subject of both a motion for sanctions
and a motion to compel. The trial court denied the sanctions motion but compelled
NOV to produce information regarding the video and the USB drive. At this point,
NOV produced a CD with files allegedly recovered from the USB drive but not a
playable version of the video.
Johnson’s IT expert, Carlos Townsend, testified that he was able to recover
even more files from the USB drive. Townsend testified that he “pretty much” was
6
Garcia acknowledged that there had been intermittent problems copying videos from that
particular server.
7
As Johnson notes, there appears to be some discrepancy in the color or colors of the USB
drive as described by Sterling and McDonald, although in his testimony at the hearing, McDonald
stated that he really did not remember the color.
8
Johnson does not provide citation to the voluminous record for many of his assertions.
Furthermore, some of the provided citations are not to relevant portions of the record. See, e.g.,
Univ. Gen. Hosp., LP v. Prexus Health Consultants, LLC, 403 S.W.3d 547, 557 n.6 (Tex. App.—
Houston [14th Dist.] 2013, no pet.) (explaining that appellate court is not required to make an
independent search of a voluminous record for evidence supporting a party’s position).
20
able to view at least a portion of all of the video files on the USB drive except for
the video of the incident that precipitated Johnson’s termination.9 He further stated
that he found it “quite odd” that the USB drive appeared to be blank before recovery
software was used on it. He indicated that typically after deletion, information would
still be visible on the drive. On cross-examination by NOV’s counsel, Townsend
acknowledged that there was no indication that various ways to intentionally remove
data had been used on the USB drive, including use of a wiping tool, renaming the
file, reformatting, or putting a magnet next to the drive. He further acknowledged
that multiple files had been copied to the USB drive over a period of time.
As stated above, the trial court found that NOV negligently destroyed the
video and ordered the parties not to discuss the video but refused to find that the
destruction was intentional and refused to give the jury an instruction on spoliation
as Johnson requested.
C. Negligent Destruction
We first turn to Johnson’s complaint that the trial court abused its discretion
in determining that NOV’s destruction of the video was only negligent and not
intentional. Although Johnson appears to concede that there is no direct evidence
that NOV intentionally destroyed the video, he insists that the trial court should have
inferred intent from the circumstances.10 See Tex. First Nat’l Bank v. Ng, 167 S.W.3d
842, 853 (Tex. App.—Houston [14th Dist.] 2005, judgm’t vacated w.r.m.) (“Intent
may certainly be proven by circumstantial evidence.”). Johnson specifically alleges
9
The file name included a date and time identification code that was from the same date
and time as the incident.
10
Johnson also asserts that the trial court erred in failing to consider the entire record in
making its spoliation determination, citing Mercedes-Benz USA, LLC v. Carduco, Inc., No. 13-13-
00296-CV, 2016 WL 1274535, at *26 (Tex. App.—Corpus Christi Mar. 31, 2016, pet. filed) (mem.
op.). However, he does not cite any place in the record suggesting the trial court failed to consider
the entire record, and NOV denies that this occurred.
21
that the record shows that NOV: (1) delayed revealing the existence of the USB
drive, (2) made inconsistent statements regarding the contents of the USB drive, and
(3) failed to keep the USB drive safe and permitted other employees to use it for
other purposes. Johnson further relies on other alleged conduct by NOV or its
counsel in supposedly lying about having produced all human resources documents
relating to the case, defying the trial court’s order to choose a neutral computer
forensics company relating to a search of NOV databases on another matter (see
below), and the allegedly unexplained relationship between NOV’s counsel and the
selected forensics company in another case.
The trial court could well have considered all of these matters. But the court
may also have found the testimony of the NOV employee-witnesses credible. See In
re J.R.P., 526 S.W.3d at 777; see also Siddiqui v. Fancy Bites, LLC, 504 S.W.3d
349, 371 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) (“Intent is a fact
question uniquely within the realm of the trier of fact because it so depends upon the
credibility of the witnesses and the weight to be given to their testimony.” (quoting
Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432, 434 (Tex. 1986))). Even if the
judge believed NOV delayed, concealed, and obfuscated after litigation began, it
does not mean that the judge also had to conclude that the employees were lying
about what happened with the USB drive. As set forth above, evidence supports the
conclusions that the security server on which the video was originally kept
automatically deleted the video before Johnson filed his EEOC charge, and an
attempt was made to copy the video onto a USB drive but either the transfer process
was unsuccessful (the server apparently had a history of such problems) or the video
file was subsequently lost as the USB drive was reused multiple times. Although
Johnson’s IT expert, Townsend, found it “odd” that the USB drive appeared blank
when viewed without the use of recovery software, he did not expand on whether
22
this suggested foul play of any sort, and he agreed that there was no evidence that a
number of ways to intentionally destroy data on a USB drive had been utilized.
Based on the available evidence, the trial court reasonably concluded that the
destruction of the video was due to NOV’s negligence and was not intentional. The
evidence indicates that NOV did not do enough to keep the video file protected, but
the evidence does not mandate a finding of intentional destruction. Accordingly, we
overrule Johnson’s fourth issue.
D. Spoliation Remedy
Johnson additionally argues that even if the trial court properly found that
NOV only negligently destroyed the video, the court abused its discretion in not
granting a remedy for spoliation that would have effectively returned him to the
position that he would have been in had spoliation not occurred. See Brookshire
Bros., 438 S.W.3d at 18. Johnson asserts the trial court should have imposed three
additional remedies that it did not, i.e., the court should have: (1) awarded Johnson
his attorney’s fees, costs, and expenses relating to spoliation; (2) given a spoliation
instruction to the jury based on the finding of negligent destruction by NOV; and (3)
told the jury that NOV claimed that it had the video but then deleted it without saying
whether such destruction was intentional or negligent. For the following reasons, we
conclude that none of Johnson’s arguments have merit.
As the court in Brookshire Brothers emphasized, a trial court has broad
discretion in fashioning an appropriate remedy for spoliation, and such remedy could
certainly include an award of attorney’s fees, costs, and expenses to the
nonspoliating party. 438 S.W.3d at 14, 21. Johnson, however, addresses this
potential remedy in only half of one sentence in his brief. He offers neither any
particular argument nor any citation to the record in support of this proposed remedy.
See Tex. R. App. P. 38.1(i) (requiring that an appellant’s brief must contain a “clear
23
and concise argument for the contentions made, with appropriate citations to
authorities and to the record”). Specifically, Johnson does not assert that he
established what amount of fees, costs, and expenses were attributable to the
spoliation issue, and he offers no citation to any such proof in the record.
Accordingly, Johnson has waived this argument on appeal. See, e.g., Bruce v.
Cauthen, 515 S.W.3d 495, 512 (Tex. App.—Houston [14th Dist.] 2017, pet. denied);
Thomas v. Olympus/Nelson Prop. Mgmt., 148 S.W.3d 395, 401 (Tex. App.—
Houston [14th Dist.] 2004, no pet.).11
Next, Johnson is correct that in Brookshire Brothers, the supreme court
indicated that a spoliation instruction might be warranted when the spoliating party
negligently failed to preserve evidence and the nonspoliating party has thereby been
deprived of any meaningful ability to present a claim or defense. 438 S.W.3d at 14.
The court cautioned, however, that this would be a rather rare circumstance. Id.
Undoubtedly, the video would have been an important piece of evidence in this case,
as it reportedly showed the incident for which Johnson was ostensibly terminated.
We cannot say, however, that the trial court abused its discretion in determining that
the absence of the video deprived Johnson of any meaningful ability to present his
case.
Johnson does not dispute that during the incident in question, he closed the
doors to his machine and set the machine after Sierra placed the tag on the machine’s
control panel. This is indeed what Garcia and Sterling said that the video showed
11
Although not referenced by Johnson, it appears that he filed a post-judgment motion for
attorney’s fees, expenses, and costs relating to the spoliation issue and his fifth motion for
sanctions (discussed below). The motion and attached documentation generally does not
differentiate between fees related to spoliation and fees related to other items covered in the fifth
sanctions motion. Moreover, Johnson offers no explanation as to why this motion should be
considered timely. Regardless, Johnson has not properly presented his argument on appeal. See
Bruce, 515 S.W.3d at 512; Thomas, 148 S.W.3d at 401.
24
and is what NOV claims was a LOTO violation. With one exception, the key
disputes in this case were not so much about what happened but whether Johnson’s
conduct amounted to a LOTO violation, whether the alleged violation was serious
enough to merit termination, and whether race was a motivating factor in Johnson’s
termination. The one point of disagreement regarding the incident that Johnson
references and the video may have helped resolve concerned whether Sierra pressed
the stop button on Johnson’s control panel when he placed the tag on the panel.
Sierra claimed that he pressed the button and that this deenergized the machine.
Johnson testified that Sierra did not press the button and that, even if he had, it would
not have deenergized the machine. While we do not know whether the video would
have resolved this factual dispute, it certainly would have been preferable for the
jury to be able to see it. However, as noted, Johnson’s case did not turn on resolution
of that one dispute. Accordingly, the trial court did not abuse its discretion in
refusing to give the spoliation instruction in light of its determination that NOV
negligently spoliated the evidence.
Lastly, Johnson argues that the trial court should have, in the absence of a
spoliation instruction, informed the jury that NOV claimed it had a video that
supported its reason for terminating Johnson but also claimed that the video was
deleted. Johnson suggests that this information could have been imparted without
referencing whether the destruction of the video was intentional. This approach
would have essentially left it up to the jury to determine whether spoliation occurred
and what to make of the video’s destruction. The court in Brookshire Brothers,
however, clearly rejected such an approach when it emphasized that “the trial court,
rather than the jury, must determine whether a party spoliated evidence and, if so,
impose the appropriate remedy.” Id. at 20.
Finding no merit in any of Johnson’s arguments concerning other potential
25
spoliation remedies, we overrule his fifth issue.
IV. Sanctions
In his sixth issue, Johnson contends that the trial court erred in refusing to
sanction NOV and its counsel for allegedly disobeying court orders, lying about the
reasons they failed to comply, and concealing documents and data. We review a trial
court’s decision to grant or deny sanctions for an abuse of discretion. See Am. Flood
Research, Inc. v. Jones, 192 S.W.3d 581, 583 (Tex. 2006) (per curiam); Clark v.
Bres, 217 S.W.3d 501, 515 (Tex. App.—Houston [14th Dist.] 2006, pet. denied).
When reviewing matters committed to the discretion of a trial court, we may not
substitute our judgment for that of the court below. Bowie Mem’l Hosp. v. Wright,
79 S.W.3d 48, 52 (Tex. 2002) (per curiam). Rather, our review is limited to deciding
whether the trial court acted arbitrarily, unreasonably, or without reference to
guiding rules or principles. Am. Flood Research, 192 S.W.3d at 583. A trial court
does not abuse its discretion if it bases its decision on conflicting evidence and some
evidence supports its decision. Unifund CCR Partners v. Villa, 299 S.W.3d 92, 97
(Tex. 2009) (per curiam). The party moving for sanctions bears the burden of
overcoming the presumption that pleadings and other papers are filed in good faith.
See id.
A. The Motions
Johnson specifically references his first, fourth, and fifth motions for
sanctions, although it is not entirely clear whether he is arguing on appeal that the
trial court should have granted one, more, or all of these motions. Johnson’s first
motion for sanctions involved, among other things, NOV’s failure to produce a
written progressive discipline policy. Johnson requested the policy in discovery, but
NOV claimed that it did not exist, despite the fact that Evans mentioned that he had
received written “guidelines” in 2013 and Garcia stated that she thought they had a
26
written policy. In response to the motion, NOV continued to deny the document’s
existence. Although it is not clear whether the trial court expressly denied the
motion, it is clear that the trial court did not grant the motion.
Johnson’s fourth motion primarily concerned NOV’s failure to produce an
employee handbook referencing a progressive discipline policy.12 Johnson asserted
that he had discovered such a handbook in his own possession and recalled that it
had been issued to him in 2008. NOV responded to this motion by asserting that it
did not have such a policy and that the handbook Johnson discovered was not an
NOV document. In support, NOV presented a declaration from its Vice President of
Human Resources stating NOV had not had a “corporate-sponsored” handbook in
place since at least 2007.
The trial court deferred a ruling on the fourth motion in order for a search of
NOV’s computer databases to be conducted by an outside IT firm, paid for by NOV.
After Johnson rejected NOV’s first two suggestions, NOV mentioned a firm based
in Dallas called Stroz-Frieberg that NOV’s counsel stated he had just learned about.
Johnson neither agreed to nor rejected this firm on the record. The list of search
terms was to be prepared by the outside firm, added to by Johnson, and then
approved by the court before the search was performed. NOV subsequently reported
to the trial court that the search conducted by Stroz-Frieberg found 13,552
documents matching various search terms and that it was producing 24 of those
documents as responsive to discovery requests, but no progressive discipline policy
was uncovered. NOV additionally stated that the total cost of the project was at least
$50,000. The trial court refused to allow NOV to use any of the newly discovered
12
Johnson’s second motion for sanctions concerned emails that NOV allegedly failed to
produce. Johnson’s third motion concerned the spoliation claims discussed in a previous section
of this opinion.
27
documents at trial but otherwise denied Johnson’s fourth motion for sanctions.
Johnson’s fifth motion concerned in relevant part whether NOV’s counsel
followed the trial court’s instructions regarding the database search. Johnson alleged
that his counsel did not agree to NOV using Stroz-Friedberg to conduct the search,
and therefore, NOV violated the trial court’s directives by using that firm. Johnson
additionally alleged that NOV’s counsel lied to the court in claiming that Johnson’s
counsel had agreed to using Stroz-Friedberg. In the motion, Johnson requested death
penalty sanctions or, in the alternative, $50,000. NOV denied the allegations in the
fifth motion. During a hearing on the motion, the trial judge stated that the search
was not conducted as directed by the court but reserved action on the motion. The
trial court ultimately did not impose any sanctions against NOV.
B. Analysis
Johnson’s briefing on this issue reads as a litany of complaints, but it falls
short of explaining why the trial court abused its discretion in declining to sanction
NOV or its counsel. All three motions in question concerned NOV’s failure to
produce documents pertaining to a progressive discipline policy that NOV insists it
did not have or follow. Johnson cites to vague references to such a policy by two
NOV employees or former employees, Evans and Garcia, and to Johnson’s assertion
that he found such a policy in his own possession. NOV countered with a declaration
from its human resources vice president who maintained that NOV did not have such
a policy in place at the time of the incident that led to Johnson’s termination.
Moreover, the search of NOV’s databases by an outside IT firm found no such
policy. The trial court was therefore within its authority to conclude that no such
policy existed. See Unifund CCR Partners, 299 S.W.3d at 97; In re J.R.P., 526
S.W.3d at 777. If no such policy existed, there was no basis to sanction NOV for
failure to produce such a policy.
28
That leaves Johnson’s complaint that NOV failed to follow the procedures
laid out by the trial court for the search of the databases. Indeed, the trial judge
expressed frustration with this failure during the hearing on the fifth motion for
sanctions. The judge also, however, expressed frustration with the “bickering” and
“sniping” in the case from counsel for both sides. NOV filed its own motion for
sanctions, complaining about Johnson’s counsel’s conduct during Johnson’s
deposition. The trial court ultimately did not sanction either side.
Based on the status updates NOV provided and the description of the search
NOV offered at the sanctions hearing, the trial judge may have been satisfied with
the outcome of the search and the search terms and methods used. The judge
reasonably could have concluded that sanctions were not warranted because no
progressive discipline policy was uncovered after NOV spent a reported $50,000 or
more searching for one. Based on the record before us, we cannot say that these
conclusions were arbitrary, unreasonable, or undertaken without reference to
guiding rules or principles. See Am. Flood Research, 192 S.W.3d at 583.
Accordingly, we overrule Johnson’s sixth issue.13
V. Evidentiary Rulings
Lastly, under issue seven, Johnson challenges the trial court’s admission of
certain evidence and exclusion of other evidence. We review a trial court’s rulings
on the admission or exclusion of evidence for an abuse of discretion. See Brookshire
Bros., 438 S.W.3d at 27. The complaining party must demonstrate that the judgment
13
Johnson also points out that in his motion for new trial, he asserted that there was a
preexisting connection between NOV’s counsel and Stroz-Frieberg in that executives of Stroz-
Frieberg supposedly had “family ties with the Apache Corporation,” which was also a client of
NOV’s counsel. Johnson, however, does not cite any evidence establishing the alleged family
connection or whether NOV’s counsel was aware of any such connection. In its briefing, NOV
denies the alleged connection exists.
29
turns on the particular evidence that was excluded or admitted. Hooper v. Chittaluru,
222 S.W.3d 103, 107 (Tex. App.—Houston [14th Dist.] 2006, pet. denied). We will
not reverse a judgment based on an erroneous evidentiary ruling when the evidence
in question was cumulative or not controlling on a material issue dispositive to the
case. See id.
Johnson specifically argues that the trial court should not have admitted into
evidence the EEOC charge that he filed against NOV. NOV apparently introduced
this evidence to suggest that Johnson’s allegations had changed or evolved over
time. Additionally, Johnson argues that the trial court should have permitted him to
introduce evidence of other incidents at NOV involving other employees who were
not terminated for alleged safety violations. For the following reasons, we are unable
to consider the merits of either of these assertions.
A. The EEOC Charge
In his brief, Johnson suggests that the EEOC charge was inadmissible for three
reasons: (1) affidavits are not generally admissible as evidence in a contested trial,
citing Roberts v. Mullen, 446 S.W.2d 86 (Tex. Civ. App.—Dallas 1969, writ ref’d
n.r.e.) and Stephens v. City of Reno, 342 S.W.3d 249, 253 (Tex. App.—Texarkana
2011, no pet.)14; (2) the charge contained hearsay; and (3) the charge “included
employees NOV claimed were not proper comparators to Johnson.” Johnson,
however, does not cite where in the record he made any of these objections in the
trial court.
When NOV first moved to admit the EEOC charge into evidence, the trial
judge asked Johnson’s counsel for her objection. Counsel responded only that “[i]t’s
14
Johnson’s EEOC complaint included a notarized statement by Johnson, but it was not an
affidavit per se.
30
not admissible under the Rules of Evidence. It’s never admitted in employment
cases.” Apart from these general pronouncements, counsel did not offer any specific
legal or other basis for her objection.15 The trial judge, however, deferred his ruling
on the charge’s admissibility until the next day. When the issue was again raised, the
judge asked Johnson’s counsel whether she had any authority suggesting that the
charge was inadmissible and whether she had had a chance to review the authority
NOV provided, i.e., Wawarosky v. Fast Group Houston Inc., No. 01-13-00466-CV,
2015 WL 730819, at *5 (Tex. App.—Houston [1st Dist.] Feb. 17, 2015, no pet.)
(mem. op.) (holding EEOC charge was admissible as a public record under Tex. R.
Evid 803(8)). Counsel stated that she did not have any authority and had not read the
case provided by NOV. She made no further objection, and the judge admitted the
charge.
As stated above, to preserve an issue for appellate review, a party must make
a timely request, objection, or motion stating the specific grounds for the desired
ruling if they are not apparent from the context. Tex. R. App. P. 33.1(a). Johnson’s
counsel’s general statement that the EEOC charge was inadmissible did not preserve
any complaint for our review. See, e.g., In re A.A., No. 01-13-00542-CV, 2013 WL
6569922, at *17 (Tex. App.—Houston [1st Dist.] Dec. 12, 2013, pet. denied) (mem.
op.); Lege v. Jones, 919 S.W.2d 870, 874 (Tex. App.—Houston [14th Dist.] 1996,
no pet.). Accordingly, we do not address the merits of Johnson’s arguments on
appeal.
B. Evidence of Comparators
Regarding the fifteen exhibits Johnson contends the trial court erred in
excluding, Johnson acknowledges that these exhibits are not in the record. In a
15
Counsel specifically told the trial judge: “It’s not hearsay.”
31
footnote in his initial brief, Johnson states that he “will supplement with an appendix
that includes these exhibits in his Reply Brief.” Although Johnson subsequently filed
a reply brief, it did not have an appendix. And, even if it did, we cannot consider
documents attached to a brief that are not part of the appellate record. See In re
Marriage of Farmer, No. 14-17-00077-CV, 2018 WL 2247380, at *2 (Tex. App.—
Houston [14th Dist.] May 17, 2018, pet. denied) (mem. op.); In re C.C.E., 530
S.W.3d 314, 317, n.1 (Tex. App.—Houston [14th Dist.] 2017, no pet.). Accordingly,
Johnson has presented nothing to review in regards to the fifteen exhibits. See, e.g.,
Melendez v. Exxon Corp., 998 S.W.2d 266, 278 (Tex. App. 1999) (“The burden is
on the complaining party to present a sufficient record to the appellate court to show
error requiring reversal.”).
We overrule Johnson’s seventh issue.
Conclusion
Having overruled each of Johnson’s underlying substantive issues, we also
overrule his first issue concerning denial of his motion for new trial based on the
same arguments.
We affirm the trial court’s judgment.
/s/ Martha Hill Jamison
Justice
Panel consists of Justices Boyce, Jamison, and Brown.
32