      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-08-00466-CV



                         Texas Department of Public Safety, Appellant

                                                  v.

                                   Thomas Williams, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT
     NO. D-1-GN-05-003758, HONORABLE STEPHEN YELENOSKY, JUDGE PRESIDING



                               MEMORANDUM OPINION


               Appellee Thomas Williams brought suit against the Texas Department of Public

Safety (“the Department”) for discrimination on the basis of race and employment retaliation under

the Texas Commission on Human Rights Act (TCHRA). See Tex. Lab. Code Ann. §§ 21.051-.556

(West 2006 & Supp. 2009). Following trial, the jury found that the Department had retaliated

against Williams for engaging in a protected activity and awarded back pay, front pay, and

compensatory damages for mental anguish. The Department appeals, arguing (1) that the evidence

was insufficient to show that Williams suffered an adverse employment action, (2) that the evidence

was insufficient to support the jury’s awards of front and back pay, and (3) that the court abused its

discretion in admitting the report of an internal affairs investigation prompted by Williams’s

complaints and the letter of determination Williams received from the EEOC. We affirm the

judgment of the trial court.
                                          BACKGROUND

                After serving in the military during Operation Desert Storm and spending two years

as a patrol officer in El Paso, Williams entered the Department’s academy in 1995 and began

working as an officer for the Department in October 1996.1 Williams spent more than four years as

a highway patrol officer in Bayview before being promoted to the rank of sergeant in 2001 and

assigned to the narcotics division in Alpine. During his service, Williams was twice given temporary

assignments on the Governor’s Protective Detail (GPD or “the Detail”), a unit made up of sergeants

tasked with ensuring the personal protection of the Texas First Family and visiting dignitaries. After

making a favorable impression on Governor Rick Perry during his second temporary assignment,

Williams was invited to join GPD by Lieutenant Robert Rodriguez, the Detail leader at that time,

in December 2001. After submitting an application for the position and consenting to a background

check, Williams was formally offered a position with GPD. Williams testified that his reasons for

seeking the position with GPD were both job-related as well as personal. According to Williams,

he had heard about the “excellent benefits” of serving on GPD, including specialized training, the

opportunity to attend dignitary protection school, and “unlimited amounts of overtime.” Further, the

position would allow him be closer to his wife and two children by relocating them to Austin.

(Williams’s family had remained in Houston while he was stationed in Alpine, as Williams stated

that he did not intend to permanently settle in Alpine.)

                 Williams began service with GPD in January 2002 and was permanently assigned

to GPD after completing an initial 90-day probationary period. Williams received positive


       1
           The facts recited herein are taken from the testimony and exhibits admitted at trial.

                                                  2
performance reviews during his first year with GPD. The mid-term assessment of his performance

through June 2002 indicates that Williams “is representing the Department of Public Safety at the

highest levels of both the State and National Governments” and that he “has performed his duties

in a highly professional manner.” The assessment also reflects “[n]o [performance] deficiencies at

this time.” Williams’s full-year performance evaluation at the end of 2002 noted his “highly

professional manner” as well as his “positive attitude,” and also indicates no performance

deficiencies. He also took advantage of the abundant overtime opportunities available with GPD,

earning $16,183 in overtime pay for the year.

               However, by the winter of 2002, Williams had developed concerns about GPD’s

treatment of African-Americans and women. Specifically, Williams testified that African-Americans

and women on GPD were being denied opportunities to accumulate training and overtime. In

addition, Williams observed that qualified African-Americans and women who applied to GPD were

not being hired due to their race or sex.2 Williams voiced his complaints to his immediate

supervisors and to Captain Chris Mashburn of the Department’s Audit Inspection Service, who

conducted an internal investigation. The investigation concluded that GPD “was found to be

operating ineffectively and inefficiently” due to “a lack of adequate supervision.” The report noted

that hiring procedures had been ignored as Rodriguez, “[t]he Detail leader, . . . personally chose




       2
         Williams testified that as of June 2003 there were three African-Americans and one woman
serving with GPD. Since that time, Williams and one other African-American sergeant have left
GPD. As of the start of trial in February 2008, there was one African-American and one woman
among the roughly 25 members serving on the Detail.

                                                 3
prospective Detail agents” “without regard to established policy, review, or criteria.” In the wake

of the investigation, Rodriguez was replaced as Detail leader by Lieutenant David Armistead.

               Williams testified that, after Mashburn’s investigation, his overtime was cut and he

was denied desirable assignments and opportunities for training. In June 2003, Williams sent

two memos to Armistead. The first memo, which was also recorded as an EEO complaint alleging

racial discrimination, summarized complaints of other African-American sergeants on GPD

regarding lack of travel and overtime opportunities. The memo also detailed Williams’s own lack

of assignments involving travel and “body” duty.3 The second memo detailed complaints against

another sergeant on GPD, including allegations that the sergeant had sexually harassed a female

trooper working for the Department.

               After Williams submitted his memos, the number of negative write-ups and critiques

he received from his supervisors increased dramatically.4 Williams’s mid-term assessment in

June 2003 (dated September 18, 2003) indicates that he “performs his duties in an acceptable

manner” but notes that he had been involved in a “preventable fleet collision,” which according to

Williams occurred when the door of his vehicle was damaged as he tried to park close to plant

holders made of brick and cement on the grounds of the governor’s mansion.5 Williams was

formally written up for working more than sixteen hours in a 24-hour period in September 2003 and


       3
           Body duty involves “shadowing” the governor in order to provide immediate protection
or alert other GPD sergeants to a change in the governor’s plans.
       4
        The record reflects no negative write-ups or critiques prior to Williams’s sending the
memos to Armistead.
       5
          Williams testified that other GPD sergeants were written up for fleet collisions after more
serious incidents, such as traffic accidents.

                                                 4
for discussing personnel and scheduling matters with the GPD Captain without discussing them first

with Armistead, the GPD Lieutenant, in October 2003. Armistead also kept a file of notes detailing

other of Williams’s activities, including “documenting schedules/travels to cause problems” and

“visiting” other African-American members of the Detail to discuss disparate treatment based on

race. More than ten such notes from the fall of 2003 were admitted into evidence, along with several

pages of notes taken during meetings between Williams and Armistead during which Williams’s

performance was discussed.

               In addition, Williams testified that he was given more “midnight” or “graveyard”

shifts, shifts that were considered particularly undesirable due to their late hours, after he made

his complaints.6 He also testified that his overtime opportunities further decreased. Williams’s

payment records indicate that he made $9,346 in overtime pay in 2003, almost $7,000 less than he

had made in 2002.

               On January 7, 2004, Williams was involuntarily transferred back to the narcotics

division. Williams was not given a specific reason for the transfer, as he was told only that the move

was made “for the betterment of the Department.” However, when interviewed by a federal

investigator who was considering Williams for a Secret Service position, Armistead indicated that

the transfer was made due to “personality conflicts” between Armistead and Williams and because




       6
           According to Williams’s testimony, he received more midnight shifts than other GPD
sergeants, being assigned his third shift of 2003 when roughly nine other sergeants had worked only
one during that year. At one point, Williams was put on midnight duty, running from 10 p.m. to
6 a.m., for fourteen consecutive nights.

                                                  5
of Williams’s filing of “multiple EEO and harassment [complaints] against [Armistead] and

members of [GPD].”

               After the transfer, Williams filed complaints with the Department’s Internal Affairs

division and the Equal Employment Opportunity Commission (EEOC). After receiving a right-to-

sue letter from the EEOC, Williams brought suit against the Department for racial discrimination

and retaliation under the TCHRA. At trial, Williams offered evidence of the impact of his transfer

from GPD to the narcotics division. Williams’s dress changed, from the jacket and tie he had worn

during his time with GPD back to standard police attire, and instead of driving a well-appointed car

provided by the government, he drove a less luxurious vehicle. He also testified that travel

opportunities with the narcotics department were few and travel pay subject to stringent limits,

whereas on GPD opportunities for travel were abundant and travel pay and expenses virtually

unlimited. Williams testified that GPD was regarded as an elite and specialized unit within the

Department, a contention the Department challenged at trial. Further, while his rank and base pay

were unaffected by the transfer, the amount of money he was able to earn in overtime decreased due

to lack of opportunity. While Williams made $16,813 in overtime pay in 2002 and $9,346 in 2003,

after his transfer from GPD to the narcotics division his overtime pay dipped to $4,669 in 2004,

$2,540 in 2005, and $84 in each of 2006 and 2007.

               Regarding the precise amount of money lost by Williams due to lack of overtime

opportunities after his transfer, Williams presented the testimony of Dr. Robert Glover, who testified

regarding the amounts of overtime earned by other GPD employees. Glover testified that the total

amount of overtime pay for GPD employees rose each year between 2004 and 2007, with the total



                                                  6
overtime paid in 2007 reflecting a 99 percent increase over 2003. Though overtime expenditures

essentially doubled during this time period, the number of eligible employees remained relatively

stable, increasing only from 20 in 2003 to about 25 in 2008. Glover also examined evidence of the

overtime earnings of three GPD members who joined GPD at roughly the same time as Williams.

From 2004 to 2007, the low earner in the group earned an average of $20,181 in overtime per year,

the middle earner earned an average of $25,381 per year, and the high earner earned an average of

$34,214 per year, with a single-year high of $36,389.

                At the conclusion of the trial, the jury concluded that the Department had retaliated

against Williams for engaging in a protected activity. The jury awarded $128,316 in back pay for

the four years and two months between Williams’ transfer and the trial in March 2008, an amount

translating to a yearly average of $30,192. Williams also recovered $391,485 in front pay and

$100,000 for mental anguish in addition to attorneys’ fees and costs. This appeal followed.


                                    STANDARD OF REVIEW

                When reviewing a finding for legal sufficiency, we must credit evidence favorable

to the judgment if a reasonable fact-finder could, disregard contrary evidence unless a reasonable

fact-finder could not, and reverse the fact-finder’s determination only if the evidence presented in

the trial court would not enable a reasonable and fair-minded fact-finder to reach the judgment under

review. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We will sustain the appellants’

legal-sufficiency challenges if the record reveals: (1) the complete absence of evidence of a vital

fact; (2) that the court is barred by rules of law or evidence from giving weight to the only evidence

offered to prove a vital fact; (3) that the evidence offered to prove a vital fact is no more than a mere

                                                   7
scintilla; or (4) that the evidence conclusively establishes the opposite of a vital fact. See id. at 810.

More than a scintilla of evidence exists if the evidence rises to a level that would enable reasonable

and fair-minded people to differ in their conclusions. Ford Motor Co. v. Ridgway, 135 S.W.3d 598,

601 (Tex. 2004).

                When considering a factual-sufficiency challenge, we consider all the evidence and

set aside the judgment only if it is so contrary to the overwhelming weight of the evidence that it is

clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). Under either standard

of review, we must be mindful that the jury as finder of fact is the sole judge of the credibility of the

witnesses and the weight to be given their testimony. McGalliard v. Kuhlmann, 722 S.W.2d 694,

696 (Tex. 1986); Raymond v. Rahme, 78 S.W.3d 552, 556 (Tex. App.—Austin 2002, no pet.). The

jury may choose to believe one witness and disbelieve another, and we must not impose our own

opinion to the contrary. City of Keller, 168 S.W.3d at 819.

                We review a trial court’s decision to admit or exclude evidence for abuse of

discretion. State v. Bristol Hotel Asset Co., 65 S.W.3d 638, 647 (Tex. 2001). A trial court abuses

its discretion in admitting or excluding evidence if it acts without reference to any guiding rules and

principles, or if the act complained of is arbitrary and unreasonable. Carpenter v. Cimarron

Hydrocarbons Corp., 98 S.W.3d 682, 687 (Tex. 2002). We must uphold a trial court’s evidentiary

ruling if there is any legitimate basis in the record to support it. Owens-Corning Fiberglas

Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). We will not reverse a trial court for an erroneous

evidentiary ruling unless the error probably caused the rendition of an improper judgment. See Tex.

R. App. P. 44.1; see also Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989). A



                                                    8
successful challenge to an evidentiary ruling usually requires the complaining party to show that the

judgment turns on the particular evidence excluded or admitted. City of Brownsville v. Alvarado,

897 S.W.2d 750, 753-54 (Tex. 1995).


                                          DISCUSSION

Adverse Employment Action

               In its first issue on appeal, the Department argues that the evidence was legally and

factually insufficient to support the trial court’s judgment that Williams suffered an adverse

employment action. A transfer or reassignment may rise to the level of an adverse employment

action. See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (noting that “the

EEOC has consistently found ‘[r]etaliatory work assignments’ to be a classic and ‘widely

recognized’ example of ‘forbidden retaliation’”).7 To prove that a retaliatory transfer constitutes an

adverse employment action, the “plaintiff must show that a reasonable employee would have found

the challenged action materially adverse, which in this context means it might well have dissuaded

a reasonable worker from making or supporting a charge of discrimination.” Id. (citations and

quotation marks omitted); see also Montgomery County v. Park, 246 S.W.3d 610, 614 (Tex. 2007)

(adopting Burlington standard with appropriate modifications in case involving Texas Whistleblower

Act); Niu v. Revcor Molded Prods. Co., 206 S.W.3d 723, 731 (Tex. App.—Fort Worth 2006, no pet.)

(applying Burlington standard to retaliation claim under TCHRA). The requirement that an action




       7
          Though Burlington deals with Title VII retaliation actions, this Court “may look to federal
civil rights law in interpreting cases brought under the Texas Commission on Human Rights Act.”
Mayberry v. Texas Dep’t of Agric., 948 S.W.2d 312, 315 n.2 (Tex. App.—Austin 1997, writ denied).

                                                  9
be “materially adverse” exists to separate significant from trivial harms, such as “petty slights, minor

annoyances, and simple lack of good manners.” Burlington, 548 U.S. at 68; Niu, 206 S.W.3d at 731.

                To support his claim that a reasonable employee would have found the transfer from

GPD to narcotics materially adverse, Williams presented evidence that GPD employees have a far

greater opportunity to earn overtime pay than officers in the narcotics division. In 2002, his first year

with GPD, Williams earned $16,813 in overtime pay. In 2003, Williams earned $9,346 in overtime

pay, despite his allegations that his overtime was cut in retaliation for his discrimination and

harassment complaints. After Williams was transferred to the narcotics division, his overtime pay

fell to $4,669 in 2004, $2,540 in 2005, and $84 in each of 2006 and 2007. Williams also presented

evidence that his loss of overtime was due to the lack of availability of overtime in the narcotics

division as compared to GPD.

                Further, Williams presented evidence that GPD members dress differently, wearing

jackets and ties instead of standard police uniforms, and drive nicer government vehicles than their

counterparts in other divisions. In terms of the work done by GPD, one fellow GPD member called

it the “most important” job in Texas. Not only do GPD personnel protect and develop a close

relationship with the Texas First Family, they also come in contact with visiting dignitaries. In

addition, GPD members often travel on assignment to locations such as Australia and Mexico and

to events such as inaugurations and the Super Bowl while taking advantage of a generous travel

expense account during such trips. These opportunities are not available in other divisions of the

Department, including the narcotics division.

                The Department argues that the evidence presented by Williams concerns only his

subjective impressions, thereby failing to meet the objective standard set out in Burlington. The

                                                   10
evidence that overtime pay is far more plentiful for GPD members than for officers in other

divisions, however, is objective in nature. Further, the facts that GPD members dress differently

than their counterparts in other divisions, drive more luxurious government vehicles, and have more

opportunity to interact with high-ranking officials and travel on assignment provide objective proof

of the differences between serving with GPD and serving with other divisions, such as narcotics.

                The Department further argues that the transfer was not “equivalent to a demotion.”

Such analysis, however, relies on the standard used to evaluate adverse employment actions in cases

brought under the substantive anti-discrimination provision of Title VII, under which a transfer must

amount to an “ultimate employment decision” such as discharge or demotion. See McCoy v. City

of Shreveport, 492 F.3d 551, 560 (5th Cir. 2007) (evaluating race and sex discrimination claims

under Title VII); see also Alvarado v. Texas Rangers, 492 F.3d 605, 613 (5th Cir. 2007). Post-

Burlington, however, the standard used in substantive discrimination cases is not controlling when

evaluating retaliation claims. See McCoy, 492 F.3d at 560 (explaining that Burlington altered

standard in retaliation context). Instead, the Burlington standard for adverse employment actions

in retaliation cases, as set forth by the Supreme Court and adopted in Texas courts, is both “more

lenient” and “broader than for [substantive] discrimination, in that such actions are not limited to

tangible employment acts,” but rather encompass any acts that might dissuade a reasonable worker

from making or supporting a charge of discrimination. Johnson v. TCB Constr. Co., 334 Fed. Appx.

666, 671 (5th Cir. 2009) (citing Burlington, 548 U.S. at 67).8


       8
          Factors considered under previous standards may, however, be helpful to the analysis under
Burlington. See 548 U.S. at 71 (considering whether previous “position was objectively considered
a better job” or “required more qualifications, which is an indication of prestige”).

                                                 11
                Under the Burlington standard, we conclude that the evidence of loss of overtime

stemming from the transfer,9 along with the evidence of other unique benefits received by GPD

employees, supports the conclusion that a reasonable employee would have found the challenged

transfer from GPD to the narcotics division materially adverse, such that the employee might well

have been dissuaded from making or supporting a charge of discrimination.10 There is more than

a scintilla of evidence to support such a finding, and the finding is not so contrary to the

overwhelming weight of the evidence that it is clearly wrong and unjust. Accordingly, the evidence

is legally and factually sufficient to show that an adverse employment action occurred. The

Department’s first issue is overruled.

        9
           Numerous federal courts have considered loss of overtime opportunities to constitute or
contribute to a finding of an adverse employment action in the context of retaliation claims, even
under the stricter pre-Burlington standard. See, e.g., Broska v. Henderson, 70 Fed. Appx. 262, 267
(6th Cir. 2003) (“[T]he denial of overtime can constitute an adverse employment action.”);
Lentz v. City of Cleveland, 410 F. Supp. 2d 673, 685 (N.D. Ohio 2006) (“[L]ost opportunities for
overtime and secondary employment constitute adverse employment actions.”); Albright v. City of
Philadelphia, 399 F. Supp. 2d 575, 592 (E.D. Pa. 2005) (discussing “the adverse employment actions
of loss of training and overtime opportunities”); Connolly v. Mitsui O.S.K. Lines, Inc., No. 04-5127,
2009 U.S. Dist. LEXIS 86195, at *21 (D.N.J. Sept. 21, 2009) (noting that claimed “loss of overtime
opportunities . . . would constitute an adverse employment action if true”); Perez v. Consolidated
Edison Corp., No. 02 Civ. 2832, 2006 U.S. Dist. LEXIS 67459, at *38 (S.D.N.Y. Sept. 20, 2006)
(“In this case, a reasonable finder of fact could determine that the loss of shift differential and
overtime pay, the change of work schedule and the change of office location amounted to an adverse
employment action for purposes of plaintiff's retaliation claim.”).
        10
          In fact, other GPD members indicated that Williams’s transfer made them less apt to speak
out about perceived discrimination. In an affidavit taken as part of the administrative inquiry
stemming from Williams’s post-transfer complaint to the Department, Sergeant Richard Farias stated
that though “[t]here are times I see things that do not look right to me . . . I feel that if I were to point
out something that was wrong like that, I would be re-assigned from the Detail, like Thomas
Williams was.” He added, “I respect Thomas for speaking up when things seemed wrong.” In
addition, Roscoe Hughey, who served on GPD with Williams, stated in an affidavit that in the wake
of Williams’s transfer, “[n]ow everyone on the Detail knows they can’t talk about things or voice
an opinion against anything the power group does or they will be asked to leave.”

                                                     12
Awards of Back Pay and Front Pay

               In its second issue on appeal, the Department argues that the evidence to support the

jury’s awards of back pay and front pay is legally and factually insufficient.11 In order for a jury

award to survive a legal sufficiency challenge, “there need only be some evidence that a substantial

loss occurred . . . which affords a reasonable basis for estimating the amount of that loss.”

Carrow v. Bayliner Marine Corp., 781 S.W.2d 691, 695 (Tex. App.—Austin 1989, no writ).

However, “‘evidence corresponding to the precise amount found by the jury is not essential’ in order

to withstand a legal-sufficiency challenge.”       Pleasant v. Bradford, 260 S.W.3d 546, 559

(Tex. App.—Austin 2008, pet. denied); see also City of Austin v. Gifford, 824 S.W.2d 735, 740

(Tex. App.—Austin 1992, no writ) (equating challenge to legal sufficiency of jury’s award of back

pay to “argument . . . that any award of back wages was improper”) (emphasis added).

               While a legal sufficiency inquiry ends when some evidence to support the award is

found, factual sufficiency analysis also examines whether the precise amount of a jury’s award is

proper. Carrow, 781 S.W.2d at 695. In determining whether the amount of an award is supported


       11
           In its appellant’s brief, the Department expressly challenges only the legal sufficiency of
the front and back pay awards. However, the Department’s briefing of the issue includes some
argument regarding the precise amount of the awards, analysis of which is germane to a factual
sufficiency challenge. See Pleasant v. Bradford, 260 S.W.3d 546, 559 (Tex. App.—Austin 2008,
pet. denied) (holding that “[t]he legal sufficiency test is inapplicable” when evaluating precise
amount awarded by jury); Carrow v. Bayliner Marine Corp., 781 S.W.2d 691, 695
(Tex. App.—Austin 1989, no writ) (explaining that when challenging amount of jury award, proper
“remedy on appeal is a point of error asserting factual [not legal] insufficiency or excessiveness of
the verdict”). While the Department’s reply brief does not add new arguments, it explicitly disputes
both the legal and factual sufficiency of the back and front pay awards. Consequently, based on the
arguments put forth in the briefs, we construe the Department’s second issue on appeal as
challenging both the legal and factual sufficiency of the back and front pay awards. See Tex. R. App.
P. 38.9 (explaining that briefing rules are to be construed liberally).

                                                 13
by factually sufficient evidence, Texas courts have held that “[t]he jury has the discretion to award

damages within the range of evidence presented at trial, so long as a rational basis exists for the

jury’s calculation.” Mayberry v. Texas Dep’t of Agric., 948 S.W.2d 312, 317 (Tex. App.—Austin

1997, writ denied).12 So long as a rational basis for the calculation of damages exists, a jury’s

finding will not be disregarded merely because its reasoning in arriving at its figure may be unclear.

Pleasant, 260 S.W.3d at 559; see also Mayberry, 948 S.W.2d at 317 (applying same rationale in

employment context). Where the evidence supports a range of potentially appropriate awards (as

opposed to two or more binary options), Texas courts have found jury awards to be supported by

factually sufficient evidence when they do not “differ greatly from either the top end of the range or

the bottom end.” Mayberry, 948 S.W.2d at 317.


Back Pay

               Back pay compensates an employee for the amount of money the employee would

have earned had the prohibited employment action not taken place, minus the amount the

employee earned following the prohibited action. See Tex. Lab. Code Ann. § 21.258(c); West

Telemarketing Corp. Outbound v. McClure, 225 S.W.3d 658, 668 (Tex. App.—El Paso 2006,

pet. granted, judgm’t vacated w.r.m.).

               In this case, Williams testified that the amount he was able to earn in overtime pay

declined precipitously after his transfer from GPD to the narcotics division. As summarized above,




       12
          We note that Mayberry concerns the legal sufficiency of a back pay award. See
948 S.W.2d at 317. Under the precedent discussed above, however, we consider the evaluation of
the amount awarded by the jury better suited to the factual sufficiency context.

                                                 14
Williams earned $16,183 and $9,346 in overtime during his two years with GPD. After his transfer,

Williams earned a total of $7,377 in overtime during four years of service with the narcotics division

from 2004 through 2007. Williams and others testified that the decline in overtime was not by

choice, but rather due to the lack of availability for overtime with the narcotics division (as opposed

to the virtually unlimited overtime available to GPD members).

               Williams also presented the expert testimony of Glover, who testified that the overall

amount of overtime pay available to GPD personnel had not only remained stable but had

significantly increased since Williams’s departure. These increases in overtime pay occurred despite

only a small bump in the number of GPD members, from 20 in 2003 to about 25 in 2008.

Consequently, numerous GPD employees who had served at the same time as Williams had seen the

amount they personally earned in overtime pay increase in the period following Williams’s transfer.

Glover also testified about the amounts earned in overtime pay by three GPD members who joined

the Detail near the time that Williams did.13




       13
           The Department argues that this Court should not consider the testimony of Glover in
determining whether Williams offered legally sufficient evidence to support his back pay award.
Specifically, the Department states that the “totality of Glover’s testimony is speculative and just the
type of evidence the Texas Supreme Court has found to be irrelevant and not probative of any fact
for which it is offered.” The Department cites Coastal Transp. Co. v. Crown Central Petroleum
Corp. for the proposition that the “bare opinions alone” of an expert are not considered “competent
testimony.” 136 S.W.3d 227, 232 (Tex. 2004). However, Glover’s testimony that overall overtime
had increased since Williams departed and his testimony that the overtime pay of several members
had increased since Williams departed are based on the Department’s own payroll records. While
the Department may disagree with the conclusions that may be drawn from such data, the proposition
that Glover’s testimony is “bare opinion” is not supported by the record. Further, even without the
testimony of Glover, the testimony of Williams and the exhibits demonstrating Williams’s reduction
in overtime pay provide sufficient evidence for the jury to assign some value to the employee’s lost
compensation.

                                                  15
               The testimony and exhibits offered by Williams at trial provide some evidence of lost

wages and also provide a reasonable basis for estimating the proper amount of a back pay award.

The evidence presented constitutes more than a scintilla, and consequently the evidence is legally

sufficient to support the jury’s award of back pay. See Carrow, 781 S.W.2d at 695.

               The evidence presented by Williams is also factually sufficient to support the amount

of back pay. As noted above, Glover testified about the overtime earnings of three GPD employees

who were “similarly situated” to Williams based on when they started serving with GPD.14 The high

earner among these, Wayne Wallace, started one month before Williams on GPD, also as a sergeant.

Wallace earned $16,447 in overtime on GPD in 2002, compared to Williams’s $16,813. Wallace

had more experience with the Department before starting with GPD and was promoted to lieutenant

in 2003. Though the Department argues that the differences between the careers of Wallace and

Williams prevent the consideration of Wallace as a similarly situated employee, the evidence

presented to the jury would enable a reasonable finder of fact to conclude that the two were similarly

situated for the purposes of calculating overtime back pay.

               During the period from 2004 to 2007, Wallace earned an average of $34,214 per year,

with a single-year high of $36,389.         Wallace’s single-year high, when prorated for the

roughly 50 months that elapsed between January 7, 2004 (when Williams was reassigned) and


       14
          Federal courts evaluating awards of overtime under the Back Pay Act, 5 U.S.C. § 5596
(2000), have approved awards “based either upon an employee’s prior overtime experience or . . .
upon the overtime experience of similarly situated employees.” Naekel v. Department of Transp.,
850 F.2d 682, 684 (Fed. Cir. 1988) (noting that “[t]his formula appears to be fair and apt”). In
determining whether employees are similarly situated in terms of overtime opportunities, relevant
considerations include seniority, skill level, shift worked, and position held. Ball v. United States
Postal Serv., 53 Fed. Appx. 910, 912 (Fed. Cir. 2002).

                                                 16
February 25, 2008 (when the case went to trial), supports an award of up to $151,621 in back pay.

See West Telemarketing, 225 S.W.3d at 668 (explaining that, in determining award for 128 weeks

of back pay, “[t]he jury could have based lost earnings on Appellee’s highest weekly earnings

statement”). When this figure is reduced to account for the $7,377 in overtime that Williams earned

during that time period, the upper end of the range drops to $144,244. See id. (subtracting offsets

to determine upper end of range of options). The jury’s award of $128,316 falls comfortably below

this number. Accordingly, we conclude that the evidence supports a range of potential awards and

the jury’s actual award is within the range of options presented at trial. As the result is not so

contrary to the overwhelming weight of the evidence that it is clearly wrong and unjust, the jury’s

award of back pay is supported by factually sufficient evidence.


Front Pay

               The Department also challenges the legal and, as construed by this Court, factual

sufficiency of the jury’s award of front pay. Front pay is awarded to compensate the plaintiff for

future lost wages and benefits. Giles v. General Elec. Co., 245 F.3d 474, 489 n.27 (5th Cir. 2001).

While reinstatement is generally preferable to an award of front pay, front pay may be

awarded in lieu of reinstatement, especially when reinstatement is not a feasible option.15 See

Hansard v. Pepsi-Cola Metro. Bottling Co., Inc., 865 F.2d 1461, 1470 (5th Cir. 1989); Wal-Mart

Stores, Inc., v. Davis, 979 S.W.2d 30, 45 (Tex. App.—Austin 1998, pet denied). The federal courts

have identified numerous factors to be considered when awarding front pay, including the length of


       15
           At a hearing on motion for judgment before the trial court, the parties agreed that
reinstatement would not be appropriate given the facts and circumstances of this case.

                                                17
prior employment, the permanency of the position held, the nature of the work, the age and physical

condition of the employee, possible consolidation of jobs, and the myriad other non-discriminatory

factors which could validly affect the employer/employee relationship. Downey v. Strain, 510 F.3d

534, 544 (5th Cir. 2007).

               In this case, the jury heard evidence that Williams was thirty-eight years old and in

good physical condition. It heard that Williams had been a career law-enforcement officer after

serving in the military, though he had held several different posts (including stints with the El Paso

police and the highway patrol and narcotics divisions of the Department) during his approximately

fifteen years working in law enforcement. It heard evidence that some GPD sergeants spend their

entire careers with GPD, some staying on the Detail for more than fifteen years. The jury heard

Williams’s own testimony that he had sought the position with GPD in order to relocate his wife and

children to Austin and maintain close proximity to them, and that he had intended to finish his career

with the Department, which in his view meant working at GPD for “at least another 18 years.” The

jury also heard evidence that Williams had applied for a job with the federal Secret Service in the

fall of 2004, when he was still a GPD member.16 As summarized above, the jury heard evidence that




       16
           The Department points to this application to support its argument that Williams did not
intend to stay at the Department for the remainder of his career. However, the fact that Williams
applied for a Secret Service job more than three years prior to trial does not necessarily lead to the
conclusion that, at the time of trial, Williams did not intent to remain at the Department until
retirement. Indeed, the fact that he was not hired by the Secret Service—potentially in part due to
Armistead’s negative recommendation—might lead to the conclusion that, with fewer career options,
he would be more likely to remain with the Department than had he never applied to work for the
Secret Service.

                                                 18
Williams had earned GPD overtime pay of $16,183 in 2003 and $9,346 in 2004, and that similarly

situated employees earned up to $36,389 in overtime pay in a single year.

                After hearing this evidence, the jury awarded Williams $391,485 in front pay. Under

the legal sufficiency standard, there is more than a scintilla of evidence to support an award of front

pay as well as a reasonable basis for calculating the proper amount. The jury could have concluded

that Williams would have remained with GPD until the end of his career. See West Telemarketing,

225 S.W.3d at 668-69 (noting that employee “had testified that she had intended to continue working

for [employer] until her retirement” and that “[t]he jury was entitled to believe her”). Further, the

evidence of Williams’s loss of overtime and the overtime earnings of other GPD employees provides

a reasonable basis for the jury to calculate damages. See Pleasant, 260 S.W.3d at 559. Accordingly,

the Department’s challenge to the legal sufficiency of the jury’s award of front pay fails.

                In addition, the amount of front pay awarded was within the range of options

presented at trial, and is thereby supported by factually sufficient evidence. In this case, the evidence

presented at trial supports a range of awards. See id. Based on Williams’s testimony, the jury could

have concluded that Williams would remain with the Department until the end of his career in

18 years. The jury could also have concluded that, based on Wallace’s overtime earnings, Williams

would have earned up to $36,389 in overtime per year for the 18 years until his retirement, numbers

that would support an award ranging up to $655,002.17 See West Telemarketing, 225 S.W.3d at 668-


        17
          We note that Williams’s front pay award is likewise supported by the overtime earned by
the other two GPD sergeants identified as “similarly situated.” The middle earner in the group,
Robert Pena, had a single-year high of $26,754 in overtime earnings, which over 18 years would
support an award of $481,572, while the low earner in the group, Shannon O’Neil, had a single-year
high of $22,972, which would support an award of $413,496.

                                                   19
69 (relying on highest earnings statement to determine range of awards). The jury’s award falls well

within this range, and the result is not so contrary to the overwhelming weight of the evidence that

it is clearly wrong and unjust.

                The Department, however, argues that the award of front pay is impermissibly

speculative. Such an argument overlooks the fact that courts have consistently held that “[f]ront pay

can only be calculated through intelligent guesswork” and have recognized front pay’s “speculative

character by according wide latitude in its determination.” Downey, 510 F.3d at 544 (quotation

marks omitted). Accordingly, the evaluation of the legal and factual sufficiency of a front pay award

does not hinge on whether the jury’s calculations involved some speculation, but whether the jury’s

award is supported by more than a scintilla of evidence and falls within the range of options

presented at trial. As our analysis indicates that the front pay award in this case meets these criteria,

we conclude that the award is supported by the evidence.

                As the awards of back and front pay are supported by legally and factually sufficient

evidence, the Department’s second issue on appeal is overruled.


Admissibility of Evidence

                In its third issue on appeal, the Department argues that the trial court abused its

discretion by admitting the report of the Department’s internal investigation of sexual harassment

and the determination letter Williams received from the EEOC. “Relevant evidence” means

evidence having any tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be without the evidence.

Tex. R. Evid. 401; Reliance Steel & Aluminum Co. v. Sevcik, 267 S.W.3d 867, 871 n.8 (Tex. 2008).

                                                   20
Trial courts may exclude relevant evidence if its probative value is substantially outweighed by its

prejudicial effect. Tex. R. Evid. 403; State v. Malone Serv. Co., 829 S.W.2d 763, 767 (Tex. 1992).

We uphold the trial court’s evidentiary ruling if there is any legitimate basis for the ruling, Owens-

Corning, 972 S.W.2d at 43, and will not reverse a trial court for an erroneous evidentiary ruling

unless the error probably caused the rendition of an improper judgment. McCraw v. Maris,

828 S.W.2d 756, 757 (Tex. 1992).


The Internal Affairs Investigation

                The Department argues that the trial court abused its discretion by admitting the

report of the Department’s internal investigation initiated by Williams’s memo detailing the sexual

harassment of a female Department trooper by a GPD sergeant. The Department contends that the

report was not relevant to Williams’s retaliation or discrimination claims. However, as the

Department admits, the report provides evidence that Williams engaged in a protected activity, a

necessary element for a retaliation claim under the TCHRA. See Mayberry, 948 S.W.2d at 315.

                In addition, such reports may be “extremely relevant” as to the credibility of the

person making the complaint and may also shed light on whether the reasons given by the employer

for retaliatory action were pretextual. See Busby v. City of Orlando, 931 F.2d 764, 785 (11th Cir.

1991) (reversing trial court’s decision not to admit internal affairs report as abuse of discretion). In

this case, the internal affairs report corroborated the details of the sexual harassment complaint that

Williams had made based on his conversation with a Department trooper. According to Williams,

the trooper had told him that a GPD sergeant had made inappropriate sexual remarks to her. The

Department’s internal affairs report, which contains statements by the trooper herself, confirms that

                                                  21
Williams accurately related the details of his conversation with the trooper when making his

complaint. Further, the trooper’s statements in the internal affairs report indicate that Armistead was

mistaken when, according to his own notes, he informed one of Williams’s supervisors that the

trooper had indicated that she never made statements about sexual harassment to Williams.

               Consequently, as the report showed both that Williams engaged in a protected activity

and that Williams had been truthful when relating the trooper’s experience—and had not fabricated

the allegations, as suggested by Armistead’s notes—we conclude that the trial court did not abuse

its discretion in admitting the report into evidence.18


The EEOC Determination Letter

               The Department also argues that the EEOC determination letter admitted by the trial

court was substantially more prejudicial than probative and therefore should not have been admitted

into evidence. “EEOC determinations and findings of fact, although not binding on the trier of fact,

are generally admissible as evidence in civil proceedings as probative of a claim of employment

discrimination.” Johnson v. Scott Fetzer Co., 124 S.W.3d 257, 263 (Tex. App.—Fort Worth 2003,

pet. denied) (citing Lindsey v. Prive Corp., 161 F.3d 886, 894 (5th Cir. 1998)). Indeed, EEOC

determinations are considered “presumptively admissible because they are so highly probative of

discrimination that their probity outweighs any possible prejudice to defendant.” EEOC v. Manville


       18
           Even if the report were inadmissible, the Department recognizes that it must show that the
admission of the evidence “probably caused the rendition of an improper judgment.” Tex. R. App.
P. 44.(a)(1); McCraw v. Maris, 828 S.W.2d 756, 757 (Tex. 1992). Though the Department contends
that it was forced to try a “mini-trial” on the sexual harassment complaint, it points to only twenty
pages—out of a roughly 1900-page trial transcript—on which the sexual harassment complaint was
discussed.

                                                  22
Sales Corp., 27 F.3d 1089, 1095 (5th Cir. 1994) (quoting McClure v. Mexia Indep. Sch. Dist.,

750 F.2d 396, 400 (5th Cir. 1985) (citations and punctuation marks omitted)). A trial court may,

however, exclude an EEOC letter that is so conclusory that it possesses very little probative value.

Johnson, 124 S.W.3d at 263 (indicating the court may exclude letter that “does not outline, even

summarily, the evidence upon which it relies for its conclusions”).

                In this case, the EEOC’s determination letter summarizes its investigation into

Williams’s claims of discrimination and retaliation.        While it includes little evidence of

discrimination, the letter also states that “the Commission is unable to conclude that Charging Party

was discriminated against because of his race, Black.” The letter goes into much greater detail

regarding Williams’s retaliation claim, specifying the complaints Williams made to GPD and

Williams’s subsequent treatment by GPD before concluding that, “[b]ased on these analyses, it

appears more likely than not that Charging Party was given a negative evaluation and removed from

the Governor’s Protective Detail in retaliation.”

                Though the Department contends that the letter was “untrustworthy and one-sided,”

our review of the contents of the letter indicates that the EEOC exhibited care and diligence in

evaluating Williams’s claims and provided evidence for its determination that Williams was likely

the victim of retaliation. Consequently, we do not find the letter to be conclusory or lacking in

probative value. See Johnson, 124 S.W.3d at 263 (explaining that conclusory letters should not be

admitted). As the EEOC’s determination letter was probative of Williams’s retaliation claim without

undue prejudice to the Department, we conclude that the trial court did not abuse its discretion in

admitting the letter.



                                                 23
               As the trial court did not abuse its discretion in admitting the internal affairs report

or the EEOC determination letter, the Department’s third point of error is overruled.19



                                         CONCLUSION

               Because we find no reversible error, we affirm the judgment of the trial court.




                                               __________________________________________

                                               Diane M. Henson, Justice

Before Chief Justice Jones, Justices Waldrop and Henson

Affirmed

Filed: February 19, 2010




       19
            In its original brief, the Department included an additional issue on appeal arguing that
the trial court incorrectly charged the jury. As the Department withdrew the issue as waived in its
reply brief, we do not address it here.

                                                 24
