                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-07-00236-CV

EVELYN LITTLE,
                                                             Appellant
v.

TEXAS DEPT. OF CRIMINAL JUSTICE AND
GARY JOHNSON EXECUTIVE DIRECTOR,
                                                             Appellees


                           From the 278th District Court
                              Walker County, Texas
                              Trial Court No. 21,013C


                           MEMORANDUM OPINION


       Evelyn Little appeals from a directed verdict entered against her in an

employment discrimination suit she filed against the Texas Department of Criminal

Justice and Gary Johnson, TDCJ’s Executive Director. See TEX. LAB. CODE ANN. Ch. 21

(Vernon 2006). Little contends that she was not hired for employment on multiple

occasions by TDCJ due to her disability. At the close of Little’s case-in-chief in a jury

trial, the trial court granted a directed verdict against Little and entered a judgment that

Little take nothing on her claims against both TDCJ and Johnson. Because we find that
the trial court did not err by granting the directed verdict and that Little has waived her

complaint about the admission of her prior criminal history, we affirm the judgment of

the trial court.

Procedural History Relevant to This Appeal

        Little filed suit against TDCJ, alleging that they had failed to hire her more than

twenty times from 1995 to 2002 for employment. The trial court initially granted a

motion for summary judgment in favor of TDCJ; however, the summary judgment was

eventually reversed by the Texas Supreme Court as to the issue of whether Little was

disabled, and by our coordinate Court as to the issue of whether Little had raised a fact

question regarding TDCJ’s articulated reasons for not hiring Little and pre-text. See

Little v. Tex. Dep’t of Crim. Justice, 148 S.W.3d 374 (Tex. 2004); Little v. Tex. Dep’t of Crim.

Justice, 177 S.W.3d 324 (Tex. App.—Houston [14th Dist.] 2005, no pet.). The cause was

remanded to the trial court and a jury trial commenced.

        At the close of Little’s case-in-chief, TDCJ made a motion for a directed verdict.

The trial court granted the motion and discharged the jury. The trial court entered a

judgment denying Little’s claims with prejudice.

Directed Verdict

        In reviewing the grant or denial of a directed verdict, we follow the standards for

assessing the legal sufficiency of the evidence. City of Keller v. Wilson, 168 S.W.3d 802,

809-28 (Tex. 2005). We must determine whether there is any evidence of probative force

to raise a fact issue on the question presented. Bostrom Seating, Inc. v. Crane Carrier Co.,

140 S.W.3d 681, 684 (Tex. 2004). We will credit the favorable evidence if reasonable

Little v. TDCJ                                                                           Page 2
jurors could and disregard the contrary evidence unless reasonable jurors could not.

City of Keller, 168 S.W.3d at 827. “A directed verdict is warranted when the evidence is

such that no other verdict can be rendered and the moving party is entitled, as a matter

of law, to judgment.” Byrd v. Delasancha, 195 S.W.3d 834, 836 (Tex. App.—Dallas 2006,

no pet.).    However, if there is any evidence of probative value on any theory of

recovery, a directed verdict is improper and the case must be remanded for the jury to

determine that issue. See Szczepanik v. First S. Trust Co., 883 S.W.2d 648, 649 (Tex. 1994).

Discrimination in Hiring

        In employment discrimination cases that have not been fully tried on the merits,

we apply the burden-shifting analysis established by the United States Supreme Court.

Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex. 2003). When a discrimination

case has been fully tried on its merits, however, “we need not parse the evidence into

discrete segments corresponding to a prima facie case, an articulation of a legitimate,

nondiscriminatory reason for the employer’s decision, and a showing of pretext.”

Rutherford v. Harris County, Tex., 197 F.3d 173, 181 (5th Cir. 1999) (quoting Travis v. Bd. of

Regents, 122 F.3d 259, 263 (5th Cir. 1997)). We instead, determine whether the evidence

is sufficient to support the judgment. See Rutherford, 197 F.3d at 180-81; Canchola, 121

S.W.3d at 739.

        Under Texas Labor Code section 21.051, an employer commits an unlawful

employment practice if because of a disability, the employer “fails or refuses to hire an

individual, discharges an individual, or discriminates in any other manner against an

individual in connection with compensation or the terms, conditions, or privileges of

Little v. TDCJ                                                                          Page 3
employment.” TEX. LAB. CODE ANN. § 21.051(1) (Vernon 2006). The Texas Legislature

modeled chapter 21 of the Texas Labor Code after federal law for the express purpose of

carrying out the policies of Title VII of the Civil Rights Act of 1964 and its

subsequent amendments. Id. § 21.001(1); Herbert v. City of Forest Hill, 189 S.W.3d 369,

374 (Tex. App.—Fort Worth 2006, no pet.); Shear Cuts, Inc. v. Littlejohn, 141 S.W.3d 264,

269 (Tex. App.—Fort Worth 2004, no pet.). Consequently, when reviewing an issue

brought under chapter 21, we may look not only to cases involving the state statute, but

also to cases interpreting the analogous federal provisions. Caballero v. Cent. Power &

Light Co., 858 S.W.2d 359, 361 (Tex. 1993); Herbert, 189 S.W.3d at 374-75; Shear Cuts, Inc.,

141 S.W.3d at 269.

        In order to establish a prima facie case of discrimination in the context of a denial

of an employment position, Little was required to show that (1) she is a member of a

protected class, (2) she applied for and was qualified for the position, (3) despite her

qualifications, she was rejected, and (4) after she was rejected, the position remained

open and the employer continued to seek applicants with her qualifications. See Romo v.

Tex. Dep't of Transp., 48 S.W.3d 265, 270 (Tex. App.—San Antonio 2001, no pet.). In

order to prove causation, Little must establish that her disability “was a motivating

factor for an employment practice, even if other factors also motivated the practice….”

TEX. LAB. CODE ANN. § 21.125(a) (Vernon 2006); Quantum Chem. Corp. v. Toennies, 47

S.W.3d 473, 479-80 (Tex. 2001).

        Little complains that the evidence demonstrated that the sole witness that she

called other than herself testified that he considered her disability in determining if she

Little v. TDCJ                                                                         Page 4
would be able to do the job and that he “falsified interpretation of [Little’s] job

applications.” She does not address the prima facie case elements required. Ronald

Kelly, a former supervisor with TDCJ, testified that he had been involved with several

of Little’s applications and interviews. He admitted to noticing her limp and that he

considered everything that she had put on her applications because it was necessary for

determining who to select. Kelly also testified that he did not consider her disability at

all, and was not allowed to inquire about accommodations until she had been selected

for the position.

        However, Little presented no evidence as to whether the position remained open

after her interview and TDCJ continued to seek applicants with her qualifications, or

whether the persons who were ultimately hired for the positions for which she applied

but was not hired were more or less qualified than she was for the specific position for

which she had applied.1 We find that the trial court did not err by granting the motion

for directed verdict and entering judgment against Little. We overrule this issue.

Admission of Prior Convictions

        Little complains that the trial court erred by admitting evidence of her prior

convictions pursuant to rules of evidence 404(b) and 609. See TEX. R. EVID. 404(b) & 609.

However, she did not object at any time to the trial court about the admissibility of her

criminal history and in fact, affirmatively stated that she had no objection to the

1 In her response to the motion for summary judgment filed in this action, Little produced significant
substantive evidence of her many attempts to be hired by TDCJ, including documentary and deposition
evidence. See Little v. Tex. Dep’t of Crim. Justice, 148 S.W.3d 374 (Tex. 2004); Little v. Tex. Dep’t of Crim.
Justice, 177 S.W.3d 324 (Tex. App.—Houston [14th Dist.] 2005, no pet.). However, this evidence was not
admitted at trial, nor were any of the witnesses called to testify regarding her interviews and
qualifications other than Kelly.

Little v. TDCJ                                                                                         Page 5
evidence. To preserve error for review, a litigant must object and state the grounds for

the ruling sought from the trial court with sufficient specificity to make the court aware

of the complaint. See TEX. R. APP. P. 33.1(a)(1)(A). Because Little made no objection to

the trial court, this complaint is not preserved and there is nothing for us to review. See

id. We overrule this issue.

Conclusion

        We find that the trial court did not err by granting the motion for directed verdict

and that the complaint regarding Little’s prior convictions was waived. We affirm the

judgment of the trial court.


                                           TOM GRAY
                                           Chief Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed May 12, 2010
[CV06]




Little v. TDCJ                                                                        Page 6
