                               NUMBER 13-07-132-CV

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


CINGULAR WIRELESS, L.L.C.,                                                     Appellant,


                                            v.

KENNETH D. LEE, JR.,                                                            Appellee.


                    On appeal from the 404th District Court
                         of Cameron County, Texas.


                          MEMORANDUM OPINION

                    Before Justices Yañez, Garza, and Vela
                    Memorandum Opinion by Justice Vela

       This is an appeal from a judgment entered in favor of appellee, Kenneth D. Lee Jr.,

and against appellant Cingular Wireless, L.L.C. (“Cingular”), in a non jury trial concerning

the alleged wrongful termination of Lee’s employment. The trial court issued findings of

fact and conclusion of law in support of its judgment of $1.6 million dollars. Cingular urges
seven issues on appeal, including challenges to the legal and factual sufficiency of the

evidence, various errors in the damage award, error in allowing the admission of Lee’s

expert witness, and error in refusing to allow appellant a jury trial or an emergency

continuance. We reverse and render.

                                              I. BACKGROUND

A. The Z-Page Litigation and the Alleged Request to Lie

        Ken Lee’s employment with Cingular ended on November 15, 2002. Lee argues

that he was fired from Cingular because he refused to lie in a deposition that occurred

about eleven months earlier, on January 31, 2002, in related litigation involving Cingular

and Z-Page Wireless Communication (“Z-Page”), a former Cingular agent. Conversely,

Cingular argues that Lee was not fired solely for refusing to lie in a deposition; rather, Lee’s

position was eliminated as a result of a major national reorganization having nothing to do

with his conduct at a deposition and, thereafter, he was either not selected for, or failed to

apply for, other available positions.1              Cingular also notes that Lee received poor

evaluations before his departure for missing meetings, sleeping at meetings, and other

unsatisfactory conduct. These allegations were contested by Lee and determined in Lee’s

favor in the trial court’s findings of fact.

        Lee worked for Cingular from July 11, 1988 to November 15, 2002. Initially, he

worked for Southwestern Bell, Cingular’s predecessor, as a director of operations for the

Rio Grande Valley. In that position, he was responsible for all operations in the region and


        1
          Cingular contends that Lee was never asked to lie in his deposition. However, the trial court found
that he was. Cingular’s prim ary argum ent under its first issue is that even if he was asked to lie, it was not
the sole cause of his departure from Cingular and, pursuant to Sabine Pilot v. Hauck, 687 S.W .2d 733 (Tex.
1985), it had to be the sole cause of his firing in order for him to recover.

                                                       2
supervised over 200 employees. He reported to a regional director and vice president.

From May 2000 to October 2000, Lee was the Director of External Distribution for Cingular.

In October 2000, Lee was asked to focus primarily on Z-Page, the largest agent for

Cingular in the Rio Grande Valley. In this position, Lee reported to Judy Allen, who, like

Lee, held a director-level position. At this time, Judy Allen became the Director of Sales

Operations for the Tropical Texas market. There was no evidence of any other incidence

at Cingular where a director reported to another director.2 From October 2000 until

September 2002, Allen reported to Rob Forsyth, the vice president and general manager

of the Greater Texas/South Texas Region. Lee did not directly report to Forsyth.

        Beginning in April 2001, Lee’s sole responsibility was to manage the relationship

with Z-Page. He no longer had any employees directly reporting to him. Although Z-Page

was Cingular’s biggest agent in the Rio Grande Valley, there was trouble brewing between

the two companies based upon a change in the compensation structure for agents. Lee

notified both Allen and Forsyth in July 2001 that Miller, an owner and principal of Z-Page,

had given him a draft contract for the proposed sale of Z-Page to a company called Sol

Telecommunications. During a conference call among Forsyth, Allen and Lee, which was

secretly taped by Lee, the three speculated that Sol Telecommunications might be related

to VoiceStream, a competitor company. This was not good news for Cingular because it

had invested large amounts of money in Z-Page. The severity of, and reasons for, their

concern at this point was debated at trial and seriously contested. The trial court found

that the three were very concerned about Z-Page being sold to a competitor.


        2
         In fact, there was evidence that in Novem ber 2001, Allen proposed the elim ination of Lee’s director-
level position based on budget constraints and the fact that Lee’s m ain custom er had left.

                                                      3
        Shortly after this conversation, Forsyth contacted Greg Hogue, a former colleague,

who was working for VoiceStream at the time. Forsyth’s conversation with Hogue is at the

crux of the issues that later arose. The evidence is undisputed that Hogue told Forsyth that

he had not heard of any pending purchase of Z-Page. This conversation would later be

important in ensuing litigation involving Z-Page and Cingular, because there was concern

that it could be construed as interference with a competitor.3 Forsyth and the others were

concerned about a possible sale because Cingular had invested more than one million

dollars into Z-Page’s business. Forsyth, Allen and Lee were also concerned because no

one could locate a written contract between Cingular and Z-Page that they believed had

been previously signed by the parties.

        Without notice to Cingular, Z-Page converted its stores from Cingular to Verizon

over the weekend of September 15 and 16, 2001. On September 14, 2001, Z-Page also

sued Cingular for tortious interference with its business relationships with a prospective

buyer. (“the Z-Page litigation”). Forsyth was individually named in the Z-Page litigation on

November 15, 2001. Forsyth, Allen and Lee were all deposed in the Z-Page litigation

between January 16, 2002 and January 31, 2002.

        After Cingular lost the Z-Page account, Lee’s primary account, Lee became

responsible for developing new agents in the Rio Grande Valley. He remained in that

position until his employment ended in November 2002. The evidence showed that he

brought one new agent aboard during this time.




        3
           Z-Page later sued Cingular for tortious interference with business relations. This will be discussed
later in the factual statem ent.

                                                      4
       In November 2001, prior to Lee’s deposition, Lee testified that he had a discussion

with Forsyth at a Cingular planning meeting in San Antonio. Lee testified that Forsyth told

him to forget that Forsyth had any knowledge of the draft Z-Page/Sol Communications

contract and also to forget that Forsyth had spoken with Hogue about the contract.4 Lee

further stated Forsyth told him that if Lee refused to “get this deal done,” he needed to

know if Lee was “mobile” because he might have to “surplus” him.5 Forsyth testified that

he did not have a discussion with Lee about the depositions that were going to take place.

In fact, Forsyth claimed that he had not even been individually sued at the time he saw Lee

at the Cingular meetings in early November 2001. Further, Forsyth was not brought into

the Z-Page litigation until November 15, 2001, which was after the alleged conversation

between Lee and Forsyth occurred. Forsyth testified that he did not instruct, suggest or

encourage Lee to lie in a deposition. Nevertheless, the trial court found as a fact that

Forsyth’s comment to Lee at the early November meeting “constituted a request to commit

perjury, a criminal act under the laws of Texas.”

       Lee also testified that in January 2002, Robert Vitanza, Cingular’s in-house counsel,

told him that he would not be able to help him if he did not take the company position with

regard to whether Forsyth had contacted a competitor. According to Lee, when he asked

Vitanza if he was telling him that he had to lie in the deposition or he would lose his job,

Vitanza told Lee that he knew “exactly what I mean[t].” On the other hand, Vitanza testified

that there was no truth to Lee’s allegations. He stated that he did not tell Lee to lie.



       4
           The draft contract was not, in fact, a genuine offer.

       5
           Surplus is sim ilar to a layoff.

                                                        5
According to Vitanza, everyone knew about Forsyth’s call to Hogue, including Z-Page. It

was no secret. The trial court found as a fact that Vitanza specifically requested Lee to

commit perjury.

       Certain events happened after Z-Page left Cingular that troubled Lee. For instance,

he was sent a “surplus” notice by Allen on February 20, 2002, shortly after his deposition.

Allen told him that it had been sent by accident. In fact, Lee kept his job and was not

discharged at that time. The trial court found as a fact that Allen had intentionally created

the document after Lee refused to commit perjury and that she intended that he ultimately

would be “surplussed.” Thereafter, Lee intervened in the Z-Page litigation on December

23, 2003, alleging that Cingular discharged him for the sole reason that he refused to

perform a criminal act, namely to lie in his first Z-Page deposition at the request of Forsyth

and Vitanza.

B. Project Alliance

       In the late summer and fall of 2002, at the same time that the Z-Page litigation was

going on, Cingular announced a major reorganization plan called Project Alliance. It was

initiated by Cingular’s corporate headquarters. As a result of changes made pursuant to

Project Alliance, 164 Texas employees lost their jobs, including Lee. The trial court made

no finding that Project Alliance was initiated, designed, or implemented because Lee

refused to lie in a deposition. The evidence was uncontroverted that there was a major

reorganization of Cingular at this particular time.

       Project Alliance created an organization based on three sales channels: Retail

Sales, Business Sales, and National Distribution. Director positions, like Lee’s, were

eliminated as part of Project Alliance. It was not alleged, nor did the trial court find, that

                                              6
Cingular eliminated the director positions because Lee was asked to lie in a deposition, but

refused. In fact, Lee testified that he had no reason to believe that there were any director

positions available in the Project Alliance for someone in his position.

       As part of Project Alliance, employees like Lee were considered for other positions

within the organization. The employees were placed in “universes,” which were employee

groupings based upon current job duties, title, and geographic location. Human resources

employees were responsible for placing employees into the correct “universe.” Lee was

placed into three “universes” by the human resources department. Neither Forsyth, Allen

nor Cingular’s attorneys made any decisions with regard to where Lee would be placed.

Lee was not offered a position in any of the “universes” in which he was placed. Allen did

have responsibility for rating Lee pursuant to the dictates of Project Alliance. She rated

him unfavorably in August 2002, which contrasted with his more favorable 2001 rating.

Lee argued that the poor 2002 rating was the result of Forsyth having ordered Allen to

score him low in the ratings for the Project Alliance positions. The trial court found as a

fact that his August 2002 rating was very low solely because he refused to commit perjury

in the January 2002 deposition.

       It is undisputed that Lee did not score well on the evaluations that Allen prepared

solely for placement in Project Alliance. Lee testified that Forsyth made Allen lower his

evaluations or that Forsyth lowered them himself. Both Allen and Forsyth vehemently

denied Forsyth’s involvement in lowering Lee’s rating. The trial court resolved this factual

dispute in favor of Lee, finding it “incredible” that Lee could have received an overall

evaluation of “3.5" in March 2002, yet received only a rating of “2" when he was rated for

Project Alliance in August 2002. It was undisputed that some of the factors included in the

                                             7
ratings for Project Alliance were different from those used for regular evaluation purposes.

       Through Project Alliance, employees who were not selected for a first-round position

could apply for open positions outside the Project Alliance framework. The parties

disputed whether Lee had applied for other positions. Lee testified that he told Judy Allen

he wanted to be considered for an Indirect Account Executive position. Allen testified that

Lee told her he was not willing to “take a step backward”. The trial court found that Allen

prevented Lee from applying for the indirect account executive position by falsely

representing that he was not interested in that position.

       After Lee was passed over for the second round of positions, he received a sixty-

day notice informing him that if he did not obtain another position in the company by

November 15, 2002, by applying for an open job, his employment would end. It is

uncontroverted that Lee was not prevented from seeking other positions during the sixty

day period. The trial court made no finding in this regard. Lee’s employment ended on

November 15, 2002. He was offered, but declined, a separation package.

       After Lee intervened in the Z-Page litigation, the trial court severed Lee’s claims

from the Z-Page case. After a bench trial on Lee’s claim, the trial court entered a judgment

awarding Lee $1.6 million dollars in damages.

                                 II. STANDARD OF REVIEW

       By its first issue, Cingular complains that the evidence is legally insufficient to

support the trial court’s finding that the sole reason for the ending of Lee’s employment

was his purported refusal to lie in his deposition. The trial court’s findings of fact are

subject to review for legal sufficiency under the same standard applicable to a “no

evidence” challenge to a judgment based on a jury verdict. See Cont’l Coffee Prods., Co.

                                             8
v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996). Under this standard, we must review all of

the evidence and credit the evidence that supports the judgment if reasonable jurors could

and disregard contrary evidence unless reasonable jurors could not. City of Keller v.

Wilson,168 S.W.3d 802, 827 (Tex. 2005). In a legal sufficiency review, a court should look

at all the evidence in the light most favorable to the finding to determine whether a

reasonable trier of fact could have formed a firm belief or conviction that its finding was

true. Sw. Bell Tel. Co. v. Garza, 164 S.W.3d 607, 627 (Tex. 2004).

       The trier of fact is the sole judge of witnesses' credibility, and it may choose to

believe one witness over another; a reviewing court may not impose its own opinion to the

contrary. City of Keller, 168 S.W.3d at 819. However, the trier of fact is not free to believe

testimony that is conclusively negated by undisputed facts. Id. at 820. If, after conducting

its legal sufficiency review of the record evidence, a court determines that no reasonable

fact finder could form a firm belief or conviction that the matter that must be proven is true,

then that court must conclude that the evidence is legally insufficient. Sw. Bell Tel.,164

S.W.3d at 627 (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)) (considering legal-

sufficiency review of jury finding–malice–made upon clear and convincing evidence).

                              III. THE SABINE PILOT EXCEPTION

       Texas follows the rule of at-will employment, under which employment for an

indefinite term may be terminated at will and without cause. Schroeder v. Texas Iron

Works, Inc., 813 S.W.2d 483, 489 (Tex. 1991). A Texas employer may fire an employee

at will for good cause, bad cause, or no cause at all. Montgomery County Hosp. Dist. v.

Brown, 965 S.W.2d 501, 502 (Tex. 1998). In Sabine Pilot Service, Inc. v. Hauck, the



                                              9
Texas Supreme Court recognized a very narrow exception to the employment-at-will

doctrine: “That narrow exception covers only the discharge of an employee for the sole

reason that the employee refused to perform an illegal act.” 687 S.W.2d 733, 735 (Tex.

1985). The public policy behind the Sabine Pilot exception is to deter violations of criminal

laws. Id.; Ran Ken, Inc. v. Schlapper, 963 S.W.2d 102, 106 (Tex. App.–Austin 1998, pet.

denied).

       Since Sabine Pilot, courts have continued to stress the narrowness of the exception.

 Schlapper, 963 S.W.2d. at 105.        A plaintiff, desiring to establish the Sabine Pilot

exception, has the burden to prove that his discharge was for the sole reason that he

refused to perform an illegal act that he reasonably believed would subject him to criminal

penalties. See Sabine Pilot, 687 S.W.2d at 735; see also Tex. Dep't of Human Servs. v.

Hinds, 904 S.W.2d 629, 633 (Tex. 1995). In Sabine Pilot, the supreme court imposed a

“very strict standard of causation.” Tex. Dept. of Human Servs. v. Hinds, 904 S.W.2d 629,

633 (Tex. 1995); see Sabine Pilot, 687 S.W.2d at 735. If there is any other reason for the

employee's discharge, he cannot meet his burden of proof under Sabine Pilot, even if the

refusal to perform an illegal act was, in fact, one of the reasons for the discharge. See

White v. FCI USA, Inc., 319 F.3d 672, 676-7 (5th Cir. 2003); Bell v. Specialty Packaging

Prods., 925 F. Supp. 475, 477 (W.D. Tex. 1994).

       The Sabine Pilot exception does not apply when the wrongful motivation is a

producing cause rather than the sole reason for the discharge. See Paul v. P.B.-K.B.B.,

Inc., 801 S.W.2d 229, 230 (Tex. App.–Houston [14th Dist.] 1990, writ denied); see also

Fitch v. Reliant Pharm., LLC, No. Civ.A.4:04-CV-615-Y, 2006 WL 325759 at *3 (N.D. Tex.



                                             10
2006) (granting a summary judgment because defendant introduced evidence showing

multiple reasons to fire plaintiff and no evidence that the sole cause for the firing was the

refusal to participate in an illegal program). An employer who discharges an employee

both for refusal to commit an illegal act and for a legitimate reason is not liable for wrongful

termination. Tex. Dept. of Human Servs., 904 S.W.2d at 633.

       Most of the cases interpreting the Sabine Pilot exception have done so strictly. For

instance, in Bell v. Specialty Packaging Products, the court held that the evidence was

clear that at least one reason for the plaintiff’s termination was a reduction in work force.

Id. at 477. The Bell court, applying Texas law, summarily held that the Sabine Pilot claim

failed because the plaintiff’s alleged refusal to perform an illegal act was not the sole

reason for her discharge. Id.; see White v. FCI v. USA, Inc., 319 F.3d at 677 (holding that

defendant’s evidence of an ongoing reduction-in-force and financial difficulties was

unrefuted and that plaintiff failed to make a prima facie case under Sabine Pilot); see also

Laird v. Lockheed Eng’g & Scis. Co., No. 01-98-01140-CV, 2001 WL 301438, at *4 (Tex.

App.–Houston [1st Dist.] Mar. 29, 2001, no pet.) (not designated for publication) (holding

that summary judgment was proper because the summary judgment evidence showed

several factors contributed to the decision to terminate the plaintiff, including a cost

reduction program and the fact the company was downsizing); Enserch Exploration Inc.

v. Thorne, No. 11-98-00070-CV, 2000 WL 34234577, at *5 (Tex. App.–Eastland Jan. 13,

2000, no pet.) (not designated for publication) (reversing and rendering a jury verdict,

holding that in addition to plaintiff failing to establish that he had refused to perform an

illegal act, the evidence showed that plaintiff was discharged in a general reduction-in-force



                                              11
four years after he claimed to have refused to perform an illegal act); cf. Ebasco

Constructors, Inc. v. Rex, 923 S.W.2d 694, 700 (Tex. App.–Corpus Christi 1996, writ

denied) (discussing that plaintiff’s managers prepared a reduction in force evaluation in

plaintiff’s job category and immediately recommended him for discharge and concluding

that there was some evidence to support finding of sole cause).

        In Miller v. Raytheon Aircraft Company, the court upheld a summary judgment

granted in favor of Raytheon on evidence that it had terminated all pilots, including the

plaintiff, due to the creation of a new business and the cessation of another. Miller, 229

S.W.3d 358, 368 (Tex. App.–Houston [1st Dist.] 2007, no pet.); cf. McClellan v. Ritz-

Carlton Hotel Co., 961 S.W.2d 463, 464 (Tex. App.–Houston [1st Dist.] 1997, no pet.)

(holding defendant failed as a matter of law to prove at least one legitimate reason for

terminating plaintiff’s employment).

                                       IV. ANALYSIS

       Cingular argues that the trial court’s judgment should be reversed because the

Sabine Pilot exception does not apply, primarily for the reason that Lee failed to prove that

he was discharged solely because he refused to lie in his disposition. Although almost

each relevant fact was hotly contested with regard to the elements of a Sabine Pilot claim,

we will assume, for purposes of our analysis of this issue only, that the evidence was

sufficient to support Lee’s claim that he was asked to perform an illegal act; namely that

he was asked to lie in his deposition. However, Lee’s burden of proof under this very

narrow exception to the employment-at-will doctrine was to prove by a preponderance of

the evidence that his refusal to lie in his deposition was the sole cause of departure from



                                             12
Cingular.

       The term “sole” is defined as “the one and only, single.” Bryan A. Garner, A

DICTIONARY   OF   MODERN USAGE, 816 (2nd ed. 1995). To prevail, Lee had to prove two

things: (1) his refusal to lie in the deposition was the cause for his departure from Cingular,

and (2) his discharge was for no other reason than his refusal to lie in his deposition.

Sabine Pilot, 687 S.W.2d at 735. While the statement of law is clear, its application seems

less so. For instance, in Bell v. Specialty Packaging Products, the trial court found that the

Sabine Pilot claim failed because “it is clear from the facts that at least one reason for

plaintiff’s termination was the reduction in work force at the plant.” Id. at 477. In Bell, the

mere fact of another reason for discharge was enough to negate the plaintiff’s claim. Id.

Similarly, in White, the Fifth Circuit held that there was unrefuted evidence of an ongoing

reduction-in-force and financial difficulties and affirmed a summary judgment, holding that

the employee did not come within the Sabine Pilot exception of the employment-at-will

doctrine under Texas law. 319 F.3d at 674. Likewise, in Miller, the court determined as

a matter of law in a summary judgment proceeding that the employer established that it

terminated the employee for a reason other than the employee’s refusal to perform illegal

acts. Id. at 367.

       On the other hand, in Morales v. SimuFlite Training Int’l, Inc., the Dallas Court of

Appeals reversed a summary judgment that had been granted in the employer’s favor,

stating that there was more than a scintilla of evidence that genuine issues of material fact

existed regarding whether Morales’s refusal to sign a blank form was the sole reason for

his termination. 132 S.W.2d 603, 609 (Tex. App.–Dallas 2004, pet denied). The Morales



                                              13
court reasoned: “SimuFlite contends that even if there is evidence that Morales was fired

for refusing to sign the FRF–which it denies–his refusal was not the sole cause for his

termination. When juxtaposed, however, to Morales’s testimony the alternative reasons

merely raise a fact issue concerning the reason for his termination.” Id. at 610. The

Morales opinion, however, appears to disregard that the burden to show the sole reason

for discharge is on the employee, not the employer. See also Bowen v. E-Systems, Inc.,

No. 05-95-00821-CV, 1996 WL 499814 at *9 (Tex. App.–Dallas Aug. 29, 1996, writ denied)

(not designated for publication) (holding that summary judgment in favor of employer

should be reversed because a fact issue exists concerning whether employer discharged

employee solely for refusing to change his disposition for rejection of circuit boards or

panels at issue).

       Here, the evidence was uncontroverted that Project Alliance eliminated both the job

title and job function that Lee held in the organization. The position he had previously held

no longer existed at Cingular. Lee agreed that there were no director positions available

after Project Alliance was implemented. Cingular presented uncontroverted evidence of

at least one other reason that explained Lee’s separation from employment—namely, that

his job no longer existed under Project Alliance. Lee urges that his ability to get other

positions with Cingular after the reallocations made in Project Alliance occurred was made

impossible or severely compromised because of the poor ratings he received from Allen

and that those low ratings occurred solely because Lee refused to lie in a deposition. That

is a different issue from the issue of whether he was fired solely because he refused to lie

in his deposition.



                                             14
       Although Lee doesn’t argue expansion of Sabine Pilot, what Lee asks this Court to

do is either disregard unrefuted evidence of another cause for his separation from Cingular

or extend the exception in Sabine Pilot to allow an employee to recover when an employer

declines to place an employee in another position after a reorganization because the

employee has previously refused to commit an illegal act. Under City of Keller, “undisputed

contrary evidence becomes conclusive (and thus cannot be disregarded) when it concerns

physical facts that cannot be denied.” City of Keller, 168 S.W.3d at 815; see also Augillard

v. Madura, 257 S.W.3d 494, 501 (Tex. App.–Austin 2008, no pet.)

       Here, Lee does not challenge Cingular’s decision to conduct Project Alliance, nor

does he challenge or refute the elimination of his director-level title and function. He does

not urge that he was placed in the incorrect “universes” for job placement in Project

Alliance. He remained with Cingular for almost one year after his deposition took place.

The elimination of his position as a result of Project Alliance was undisputedly one reason

Lee did not keep his job. There was a restructuring and a reduction-in-force. Lee also did

not apply for any positions outside Project Alliance.

       The trial court was not free to disregard undisputed controverting evidence

establishing that Lee’s purported refusal to lie in his deposition was not the sole cause of

his departure form Cingular. Further, based on the consistent refusal to expand the Sabine

Pilot exception, we cannot do so here. See, e.g., Fite v. Cherokee Water Co., 6 S.W.3d

337, 342 (Tex. App.–Texarkana 1999, no pet.) (refusing to expand Sabine Pilot to statutes

that have no penalties); Mayfield v. Lockheed Eng’g & Scis. Co., 970 S.W.2d 185 (Tex.

App.–Houston [14th Dist.] 1989, pet. denied) (stating2 that there is no cause of action for



                                             15
employees in the private sector who are terminated for reporting illegal activity).6                          We

sustain issue one.

                                              V. CONCLUSION

        Having determined that the trial court erred in disregarding uncontradicted evidence

that Lee’s alleged refusal to lie in his deposition was not the sole cause for his leaving

Cingular, we reverse the judgment of the trial court and render judgment that the plaintiff

take nothing.




                                                                 ROSE VELA
                                                                 Justice


Memorandum Opinion delivered and
filed this 2nd day of April, 2009.




        6
          W e note that the Sabine Pilot exception to the em ploym ent-at-will doctrine is very narrowly applied
and does not serve as a blanket prohibition on bad faith practices by em ployers in personnel decisions. For
exam ple, under Sabine Pilot and its progeny, an em ployer m ay lawfully base a decision to term inate an
em ployee predom inantly on that em ployee’s refusal to com m it an illegal act, as long as there is any additional
non-illegal reason that contributes to the decision to term inate. Here, the court found as fact that “it becam e
clear soon after Lee testified in his deposition that Allen intended that Lee ultim ately be surplussed from
[Cingular].” Thus, Cingular m ay have form ed the intent to term inate Lee based on his refusal to lie in
deposition. However, C ingular did not actually effectuate Lee’s term ination until Project Alliance was
im plem ented. Given the fact that over 100 em ployees were let go in Texas alone as a result of Project
Alliance, it would have been extrem ely difficult for Lee to show that this reorganization was not a factor that
contributed, in however sm all a part, to Cingular’s decision to term inate him . Therefore, even if Cingular
intended to term inate Lee because of his failure to lie in deposition, Project Alliance gave Cingular the
additional non-illegal reason for term ination that is necessary under Sabine Pilot to avoid liability.

                                                       16
