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                                             OPINION

                                        No. 04-07-00384-CV

                         ALAMO COMMUNITY COLLEGE DISTRICT,
                                 Appellant/Cross-Appellee

                                                  v.

                                       Dr. William MILLER,
                                      Appellee/Cross-Appellant

                      From the 37th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2005-CI-19991
                             Honorable Michael Peden, Judge Presiding

Opinion by:       Catherine Stone, Justice

Sitting:          Alma L. López, Chief Justice
                  Catherine Stone, Justice
                  Sandee Bryan Marion, Justice

Delivered and Filed: October 15, 2008

AFFIRMED

           This case concerns Alamo Community College District’s breach of a settlement agreement

with a tenured San Antonio College professor, Dr. William Miller, following Miller’s termination

from his employment. The trial court awarded Miller $487,237.57 in damages and ordered the

Alamo Community College District (“ACCD”) to reinstate Miller to his position at the college

(“SAC”). Both ACCD and Miller appeal the trial court’s judgment. We affirm the trial court’s

judgment in all respects.
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                                      MILLER ’S TERMINATION

       Miller joined SAC’s faculty in 1965 and eventually became a tenured chemistry professor.

In 1996, when Miller was working in SAC’s Distance Education Department, a female coworker,

Rosario Duque, accused Miller of engaging in inappropriate sexual conduct. Miller’s conduct

caused Duque to feel depressed and miss work, and she decided to report Miller to SAC’s executive

vice president, Robert Zeigler.1 Although Duque reported Miller’s conduct to Ziegler, Duque asked

Zeigler not to confront Miller about her allegations. Zeigler honored Duque’s request, but reassigned

Miller and Duque to positions elsewhere within SAC.

       After Miller was reassigned to SAC’s Chemistry Department, Cynthia Bello, one of Miller’s

female coworkers, accused Miller of engaging in inappropriate sexual behavior in 2001. Bello stated

Miller’s behavior made her miss work because she did not want to have contact with Miller. Bello

reported Miller’s behavior to her superiors, and Ziegler and Vern Loland, SAC’s president at the

time, initiated an investigation into the matter. Upon the conclusion of Ziegler and Loland’s

investigation, Miller was given the opportunity to retire from his position at SAC. When Miller

refused to retire by the deadline provided to him, ACCD terminated Miller for his improper sexual

behavior during the course of his employment.

                                   THE SETTLEMENT AGREEMENT

       Miller filed suit in federal court, alleging ACCD terminated him from SAC without due

process. Miller and ACCD reached a settlement agreement, agreeing that Miller would be given an

opportunity to challenge his dismissal before a faculty hearing panel as required by district policy.

The parties’ agreement provided:



       1
        … Zeigler became SAC’s president in 2002.

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       2. The Faculty Hearing Panel provided for in the ACCD Policy DMB (Local) of the
       Alamo Community College District will . . . hear, consider, and determine the
       challenge of Dr. Miller to his dismissal and will determine whether there was good
       cause for that dismissal pursuant to the panel hearing process detailed in ACCD
       Policy DMB (Local).

       3. The findings and decision of the Faculty Hearing Panel to affirm or deny the
       termination will be forwarded to the Board of Trustees of ACCD for its review.

       4. The Board will review the determination and findings of the panel pursuant to the
       substantial evidence rule as it is applied in Montgomery ISD v. Davis, 34 S.W.3d 559
       (Tex. 2000), and Hale v. Fort Worth ISD, 2002 WL 1377933 (Tex. App.—Austin,
       2002) and Board Policy DMB (Local); the Board will be bound by such Panel
       determination if supported by substantial evidence; the parties agree that the Board
       will be advised by and bound by the determination of retired Texas district judge,
       Judge James Meyers, whether there is substantial evidence to support the Panel
       determination. During its review, the Board may, under its Board Policy DMB
       (Local), return the matter to the Panel for further consideration of issues stated by the
       Board in writing, which require a determination and on which the Panel did not make
       a determination.

       5. It is stipulated that in the event that the Panel determines that Dr. Miller’s
       termination was without good cause and decides that the termination should be
       denied, and that determination is supported by substantial evidence, then Dr. Miller
       will be paid the sum of . . . ($487,237.57) by [ACCD] in full and final settlement of
       his claims within . . . (14) days of the Board concluding that the Panel determination
       is supported by substantial evidence and Dr. Miller will thereupon be reinstated to
       his former position as a tenured professor of chemistry at [SAC].

The agreement also provided that ACCD would pay Miller $150,000 for attorney’s fees and that

Miller would waive his right to sue ACCD for any reason related to his termination, except for a

breach of the parties’ settlement agreement.

                                 THE FACULTY HEARING PANEL

       A faculty hearing panel was convened pursuant to the terms of the parties’ settlement

agreement. Following the testimony of Miller’s accusers, Bello and Duque, the Faculty Hearing

Panel issued its “findings, conclusions, and recommendations concerning the termination of

[Miller].” The Faculty Hearing Panel found problems with the manner in which ACCD handled


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Duque’s and Bello’s complaints. The Faculty Hearing Panel noted ACCD failed to pursue an

investigation of Duque’s complaint after she accused Miller of misconduct and never informed

Miller about Duque’s accusations. With respect to Bello’s complaint, the Faculty Hearing Panel

noted that in cases such as Bello’s, a team of one man and one woman, one of whom must be a

faculty member, is required to carry out the investigation and to prepare a written report regarding

the team’s findings. The Faculty Hearing Panel found that no written report was prepared as to

Bello’s complaint and that ACCD improperly allowed a team consisting of two females, neither of

whom were faculty members, to investigate Bello’s complaint.

         The Faculty Hearing Panel concluded ACCD had failed to follow its own policies in

terminating Miller. The Faculty Hearing Panel also concluded that Miller’s conduct constituted

“inappropriate behavior” in violation of ACCD’s sexual harassment policy (Policy DHA (Local))

because his “actions created hostile and adverse employment environments and caused suffering to

the employees in question.” Although the Faculty Hearing Panel found Miller’s conduct constituted

a violation of ACCD’s sexual harassment policy, it concluded Miller’s actions did not constitute

grounds for termination under such policy or constitute grounds for termination under ACCD’s

tenured faculty termination policy (Policy DMB (Local)).2 Based on its findings and conclusions,

the Faculty Hearing Panel determined there was insufficient cause to terminate Miller. The panel

nevertheless urged “Miller [to] retire immediately.”

         Pursuant to the parties’ settlement agreement, Judge Meyers reviewed the Faculty Hearing

Panel’s findings and determination and concluded the Panel’s findings and determination were

supported by substantial evidence. Upon receiving Judge Meyers’s determination, ACCD’s Board


      2
        … The faculty hearing panel stated Miller’s conduct did not rise to the level of moral turpitude as contemplated
by ACCD’s tenured faculty termination policy.

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of Trustees voted to return Miller’s case to the Faculty Hearing Panel because the Board was

concerned that the Panel did not properly apply ACCD’s sexual harassment policy in reaching its

decision. The Board of Trustees instructed the Faculty Hearing Panel to reassess its application of

ACCD’s sexual harassment policy (Policy DHA (Local)) and to resubmit its recommendation to the

Board.

         In response to the Board of Trustees’s request, the Faculty Hearing Panel reconvened and

voted to stand by its earlier findings and determination. The Faculty Hearing Panel further advised

the Board of Trustees as follows:

         a. Policy DHA (Local), page 2, paragraph 4, states, “If the complaint is against a
         faculty member, the investigative team shall include at least one faculty member.”
         The 2001 team investigating the complaint against Dr. Miller included the ACCD
         Director of Human Resources and another Human Resources employee, neither of
         which was a faculty member.

         b. Policy DHA (Local), page 2, paragraph 4, states, “All teams shall consist of at least
         one male and one female investigator.” The 2001 team investigating the complaint
         against Dr. Miller consisted of two females.

         c. Policy DHA (Local), page 2, paragraph 5, states, “The investigative team shall .
         . . submit a written decision of findings to the appropriate College President or
         Chancellor, or designee.” The committee requested, but was not presented with, a
         written investigative report of [Bello’s] complaint. In fact, no one involved in this
         case was able to determine if the 2001 investigative team even wrote a “decision of
         findings.”

         d. Policy DHA (Local), page 3, paragraph 7, states, “Where the disposition
         recommends an adverse action against an employee, the protections and requirements
         of the ACCD Academic and Freedom and Tenure Policy and the Grievance Policy
         shall apply.” This statement requires that Policy DMB (Local), Termination of
         Employment: Tenure, be followed.

         e. Policy DMB (Local), page 1, states, “Adequate cause for the dismissal of a faculty
         member with tenure shall include professional incompetence, moral turpitude or
         gross neglect of professional responsibilities.” Since Dr. Miller’s professional
         performance was not being challenged, the committee considered the question of
         moral turpitude. While considered reprehensible and definitely not condoned by the


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                                                                                                        04-07-00384-CV

         committee, we concluded that Dr. Miller’s behavior did not rise to the level of moral
         turpitude.

         The Board of Trustees subsequently reviewed all of the Faculty Hearing Panel’s findings and

its final determination. The Board determined that “while the fact findings of the panel at San

Antonio College District are supported by substantial evidence, the panel exceeded the scope of its

authority in determining the issues of College Policy.” The Board of Trustees concluded that

“[w]hen the panel’s fact findings are applied to the proper interpretation of Board-approved College

Policy, then the decision to terminate Dr. Miller should be upheld.”

                                       THE BREACH OF CONTRACT SUIT

         Miller filed suit against ACCD in federal court following the Board of Trustees’s decision

to uphold his termination, for, among other things, breach of the parties’ 2005 settlement agreement.

The district court dismissed Miller’s claims, explaining that Miller’s breach of settlement claim

belonged in state court, while Miller’s other claims were barred by the terms of the parties’

settlement agreement. Miller subsequently refiled his breach of settlement claim against ACCD in

state court, seeking an order of reinstatement, stipulated damages in the amount of $487,237.57, two

years additional salary and benefits, and attorney’s fees.3

         Both Miller and ACCD moved for summary judgment on the issue of whether ACCD had

breached the parties’ 2005 settlement agreement. The trial court granted summary judgment in

Miller’s favor and denied ACCD’s summary judgment motion. Miller next moved for a final

summary judgment. The trial court granted Miller’s motion with respect to his request for



         3
          … The record reveals that after Miller filed his suit in state court, ACCD amended its tenured faculty
termination policy (Policy DMB (Local)) to expressly allow for termination for an act constituting sexual harassment.
Policy DMB (Local) now provides: “Adequate cause for the dismissal of a faculty member with tenure shall include
professional incompetence, moral turpitude, gross neglect of professional responsibilities, and sexual harassment . . . .”

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reinstatement and $487,237.57 in stipulated damages. However, the trial court denied Miller’s

motion with respect to his request for two years additional salary and benefits and attorney’s fees.

The trial court later considered, and granted, ACCD’s motion for summary judgment on Miller’s

attorney fee’s claim.

       The trial court proceeded to conduct a bench trial on Miller’s request for additional salary

and benefits for the 2005-06 and 2006-07 academic years. The trial court awarded Miller zero

damages on his claim, and the court entered a final judgment ordering Miller’s reinstatement and

awarding Miller $487,237.57 in stipulated damages. The trial court issued findings of fact and

conclusions of law following its ruling. Both Miller and ACCD appeal the trial court’s judgment.

                                         ACCD’S APPEAL

       Both parties agree that this is a contract interpretation case concerning the interpretation of

the terms of the parties’ 2005 settlement agreement. ACCD argues on appeal that we must reverse

the district court’s judgment reinstating Miller and awarding him damages because the parties’

settlement agreement authorized ACCD’s Board of Trustees to reject the Faculty Hearing Panel’s

determination and conclude that Miller’s conduct warranted his termination from SAC. According

to ACCD, the parties incorporated case law into their settlement agreement explaining that school

boards are responsible for both interpreting district policy and making the ultimate decision about

whether or not the facts demonstrate a faculty member has violated district policy. By contrast,

Miller argues the parties expressly agreed in their settlement agreement that the Faculty Hearing

Panel would be responsible for both interpreting district policy and deciding whether the facts

demonstrate he violated the policy of ACCD. Miller further claims that, pursuant to the terms of the

parties’ settlement agreement, once Judge Meyers concluded there was substantial evidence to



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support the Panel’s determination to reinstate him, the Board of Trustees was bound to follow the

Faculty Hearing Panel’s decision regardless of the Board’s views on the proper application of district

policy. We agree with Miller.

       We construe settlement agreements according to the rules applicable to contract

interpretation. Cities of Abilene, San Angelo, & Vernon v. Public Util. Comm’n, 146 S.W.3d 742,

747 (Tex. App.—Austin 2004, no pet.). In construing a written contract, we must ascertain and give

effect to the parties’ intentions as expressed in the instrument. J.M. Davidson, Inc. v. Webster,

128 S.W.3d 223, 229 (Tex. 2003). We examine and consider the entire writing and attempt to

harmonize and give effect to all the provisions of the contract by analyzing the provisions with

reference to the whole agreement. Id.

       Although ACCD argues that the terms of the parties’ 2005 settlement agreement vested its

Board of Trustees with the power to decide any policy issues associated with Miller’s termination,

we cannot interpret the settlement agreement in the manner suggested by ACCD because the terms

of the settlement indicate otherwise. As previously noted, the parties’ settlement agreement

provides:

       2. The Faculty Hearing Panel provided for in the ACCD Policy DMB (Local) of the
       Alamo Community College District will . . . hear, consider, and determine the
       challenge of Dr. Miller to his dismissal and will determine whether there was good
       cause for that dismissal pursuant to the panel hearing process detailed in ACCD
       Policy DMB (Local).

       3. The findings and decision of the Faculty Hearing Panel to affirm or deny the
       termination will be forwarded to the Board of Trustees of ACCD for its review.

       4. The Board will review the determination and findings of the panel pursuant to the
       substantial evidence rule as it is applied in Montgomery ISD v. Davis, 34 S.W.3d 559
       (Tex. 2000), and Hale v. Fort Worth ISD, 2002 WL 1377933 (Tex. App.—Austin,
       2002) and Board Policy DMB (Local); the Board will be bound by such Panel
       determination if supported by substantial evidence; the parties agree that the Board


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       will be advised by and bound by the determination of retired Texas district judge,
       Judge James Meyers, whether there is substantial evidence to support the Panel
       determination. During its review, the Board may, under its Board Policy DMB
       (Local), return the matter to the Panel for further consideration of issues stated by the
       Board in writing, which require a determination and on which the Panel did not make
       a determination.

       5. It is stipulated that in the event that the Panel determines that Dr. Miller’s
       termination was without good cause and decides that the termination should be
       denied, and that determination is supported by substantial evidence, then Dr. Miller
       will be paid the sum of . . . ($487,237.57) by [ACCD] in full and final settlement of
       his claims within . . . (14) days of the Board concluding that the Panel determination
       is supported by substantial evidence and Dr. Miller will thereupon be reinstated to
       his former position as a tenured professor of chemistry at [SAC].

The plain terms of the settlement agreement establish that the Faculty Hearing Panel would not only

make factual findings, but would also make a determination about whether to terminate Miller for

a violation of district policy. The parties’ agreement further states that the Board of Trustees agreed

to be bound by such determination if its advisor, Judge Meyers, concluded substantial evidence

supported the Panel’s determination. From the plain language of the parties’ agreement, we must

conclude that the Board of Trustees agreed as part of its settlement with Miller to divest itself of its

right to decide any policy issues associated with Miller’s termination. Thus, once Judge Meyers

concluded the Faculty Hearing Panel’s determination was supported by substantial evidence,

ACCD’s Board of Trustees had no authority to reject the Panel’s decision to reinstate Miller. ACCD

is bound by its agreement as written, and it cannot rewrite the agreement to change its terms. See

Cross Timbers Oil Co. v. Exxon Corp., 22 S.W.3d 24, 26 (Tex. App.—Amarillo 2000, no pet.)

(“[P]arties strike the deal they choose to strike and, thus, voluntarily bind themselves in the manner

they choose. And, that is why parties are bound by their agreement as written.”).

       ACCD asserts its Board of Trustees was authorized to reject the Faculty Hearing Panel’s

determination concerning Miller because Montgomery Independent School District v. Davis,


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34 S.W.3d 559, 560 (Tex. 2000), whose principles it believes were fully incorporated into the

parties’ settlement agreement, holds that school boards are solely responsible for interpreting district

policy and making the ultimate decision about whether a faculty member has violated district policy.

In Davis, the supreme court considered the termination of a public school teacher under Texas

Education Code chapter 21, subchapter F, specifically, section 21.259.4 There, a teacher was

terminated for allegedly violating district policy by failing to maintain an effective working

relationship and good rapport with parents, the community, and colleagues. 34 S.W.3d at 561. The

school district appointed an independent hearing examiner to conduct an evidentiary hearing and

make findings of fact, conclusions of law, and recommendations regarding the teacher’s termination.

Id. The hearing examiner found that there were no grounds for the school district to terminate the

teacher, but after considering the hearing examiner’s findings and determinations, the school district

board made its own evidentiary findings tending to support a conclusion that the teacher had violated

district policy and voted to terminate the teacher. Id. The school board’s decision, which was

affirmed by the Commissioner of Education, was reversed by the trial court. Id. The court of

appeals affirmed the trial court’s judgment. Id. at 562.

         On appeal to the supreme court, the school board argued that it was entitled to make the

ultimate determination as to whether the teacher had failed to maintain effective working

relationships and good rapport because such determination involved interpreting district policy. Id.

at 563. The school board further argued that the board’s statutory powers allowed it to make

additional fact findings. Id. The teacher argued on appeal that the board was bound by the hearing

examiner’s finding that she did not fail to maintain effective relationships or good rapport with


         4
           … It is undisputed by the parties that the provisions of the Education Code discussed in Davis, which refer to
public schools, do not expressly apply to this case.

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parents, the community, and colleagues because such finding was supported by substantial evidence.

Id. at 564. She also argued the board did not have the statutory authority to make additional fact

findings. Id.

        First, the supreme court rejected the school board’s contention that it was authorized to make

additional findings of fact. The court stated that “[i]f a board could find additional facts, resolving

conflicts in the evidence and credibility disputes, it would then be serving as its own factfinder

despite delegating the factfinding role to a hearing examiner, and the process of using an independent

fact-finder would be meaningless.” Id. The court recognized that when a school board reviews the

facts of the case, section 21.259 of the Education Code limits school boards to conducting a

substantial evidence review, id. at 565, which the court stated is “a limited standard of review,

requiring ‘only more than a mere scintilla,’ to support an agency’s determination.” Id. at 566 (citation

omitted).

        Second, the court determined that because school boards retain the authority to make the

ultimate decision of whether the facts demonstrate board policy was violated, school boards may,

under section 21.259 of the Education Code, reject or change a hearing examiner’s conclusions of

law or the examiner’s proposal for relief so long as the board’s decision is supported by substantial

evidence and free from legal error. Id. at 564-66. The court stated:

        We do not suggest that a school board must simply accept an examiner’s
        recommendation; under section 21.259(b)(1), the board may reject or change
        conclusions of law or the proposal for relief. The ability to reject or change
        conclusions of law preserves a school board’s authority and responsibility to interpret
        its policies. The board has the power to apply those policies to the examiners’
        findings and the undisputed evidence by rejecting or changing the examiner’s
        conclusions of law or proposal for relief . . . .We emphasize, however, that while an
        independent factfinder decides the facts under subchapter F [of the Education Code],
        the Board retains the authority to make the ultimate decision of whether the facts
        demonstrate that board policy was violated . . . Because school boards have “the


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       exclusive power and duty to govern and oversee the management of the public
       schools of the district,” TEX . EDUC. CODE ANN . § 11.151(b), under the statutory
       scheme a school board must be the ultimate interpreter of its policy, subject to the
       limits established by the Legislature in its provisions for administrative and judicial
       review.

Id. at 564-65. The court further explained:

       [A] school board is entitled to adopt, reject, or change a hearing examiner’s
       conclusions of law, and make the ultimate decision of whether to renew a particular
       contract, so long as the school board’s decision is supported by substantial evidence
       and free from legal error. Thus, the label attached, “finding of fact” or “conclusion
       of law,” is not determinative, the focus is on whether the issue determined is
       ultimately one of policy, and if so, whether a school board’s decision is supported by
       substantial evidence and free of erroneous legal conclusions.

Id. at 566 (citations omitted). Upon reviewing the facts, the supreme court determined the school

board’s decision to terminate the teacher was not supported by substantial evidence. Id. at 566-67.

The court thus affirmed the judgment of the court of appeals. Id. at 560.

       Although ACCD argues the parties’ settlement agreement incorporated all of the legal

principles discussed in Davis, we believe it would be unreasonable to read the parties’ settlement

agreement in such a manner. The settlement agreement specifically limits the parties’ reliance on

Davis to its discussion and application of the substantial evidence standard, and includes no language

suggesting the parties intended for Davis’s discussion of subchapter F to apply to Miller’s case. We

cannot interpret the settlement agreement in the manner suggested by ACCD without effectively

nullifying other provisions within the agreement. For example, the provisions within the parties’

settlement agreement stating “the Board will be bound by such panel determination if supported by

substantial evidence” and “the parties agree the Board will be advised by and bound by the

determination of retired Texas district judge, Judge James Meyers, whether there is substantial

evidence to support the panel determination” are rendered meaningless if the Board of Trustees



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retained authority to reject the Faculty Hearing Panel’s determination as claimed by ACCD. The

supreme court has instructed us “to harmonize and give effect to all the provisions of the contract

so that none will be rendered meaningless,” Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983);

therefore, we must reject ACCD’s contention on appeal.

        We likewise reject ACCD’s contention that it would never have consented in the settlement

agreement to relinquish all of its authority regarding policy interpretation and application because

such an agreement would have rendered ACCD’s role meaningless in the review process. We

emphasize that the agreement was in settlement of a federal lawsuit. It is not uncommon in the

context of a settlement for parties to delegate to other entities the role of finding facts and rendering

decisions based upon those facts. That is, in essence, what parties do when they agree to submit

contested cases to mediation or arbitration. In the instant case, ACCD agreed to submit to the

Faculty Hearing Panel the duty to “hear, consider, and determine the challenge of Dr. Miller to his

dismissal . . . .” As an additional safeguard to check the findings and determination of the Faculty

Hearing Panel, the parties agreed that Judge Meyers would review the Panel’s determination for

supporting substantial evidence, and that ACCD would be bound by Judge Meyers’s determination.

In short, the agreement in this case is procedurally similar to an agreement to submit a dispute to

arbitration, with an additional protective layer of review provided by Judge Meyers’s role in the

process. This is the procedural bargain struck by the parties in settling Miller’s federal suit.

Accordingly, we overrule ACCD’s appellate complaint.

                                      MILLER ’S CROSS APPEAL

        In his cross appeal, Miller challenges the trial court’s conclusion that his failure to mitigate

his damages bars him from recovering two additional years of lost wages and benefits. We review



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a trial court’s conclusions of law to determine their correctness based upon the facts. Citizens Nat’l

Bank v. City of Rhome, 201 S.W.3d 254, 256 (Tex. App.—Fort Worth 2006, no pet.). A trial court’s

conclusions of law are reviewed de novo, see State v. Heal, 917 S.W.2d 6, 9 (Tex. 1996), and we will

not reverse them unless they are erroneous as a matter of law. Tex. Dep’t of Public Safety v.

Stockton, 53 S.W.3d 421, 423 (Tex. App.—San Antonio 2001, pet. denied).

       In Texas, a wrongfully discharged employee must exercise reasonable diligence to mitigate

damages by pursuing other employment, Gorges Foodservice, Inc. v. Huerta, 964 S.W.2d 656, 669

(Tex. App.—Corpus Christi 1997, pet. withdrawn), or else the employee is barred from recovering

those losses that could have been avoided. Pinson v. Red Arrow Freight Lines, Inc., 801 S.W.2d

14, 15 (Tex. App.—Austin 1990, no writ). The duty to mitigate damages arises only if it can be done

with “‘trifling expense or with reasonable exertions.’” Gunn Infiniti, Inc. v. O’Byrne, 996 S.W.2d

854, 857 (Tex. 1999) (quoting Walker v. Salt Flat Water Co., 128 Tex. 140, 96 S.W.2d 231, 232

(1936)). The burden is on the defendant to show that an employee did not use ordinary care in

reducing or avoiding his damages. Hygeia Dairy Co. v. Gonzalez, 994 S.W.2d 220, 224 (Tex.

App.—San Antonio 1999, no pet.).

       Here, the record from the bench trial on Miller’s claim for additional lost wages and benefits

shows that while Miller was prepared to return to work following the Faculty Hearing Panel’s

decision, ACCD did not allow him to return to work. As a result of ACCD’s decision not to

reinstate him, Miller lost wages and benefits for the 2005-06 and 2006-07 academic years. The

record shows that had ACCD allowed Miller to return to work, he would have received $123,708

in wages and benefits for the 2005-06 academic year and $128,834 in wages and benefits for the

2006-07 academic year.



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         At trial, Miller admitted that following the Board of Trustee’s decision, he made no attempt

to secure a teaching position substantially similar to the one he held at SAC. He did testify,

however, that he searched the classified ads for teaching positions following his termination. Miller

stated that he earned $12,582.70 working for a friend’s construction company during the 2005-06

academic year. Miller further testified Schreiner University contacted him to teach part-time during

the 2006-07 academic year and that he earned $13,333.00 through such employment.

         Miller’s employment expert, Merrill Jones, testified that allegations of sexual harassment

would be a “major red flag” to a prospective employer. Jones stated that an allegation of sexual

harassment is “very stigmatizing” because employers generally take “a zero tolerance to sexual

harassment.” He noted colleges will typically search the internet for information about a potential

employee. Jones stated that when he searched the internet for information on Miller, reports of

Miller’s sexual harassment were readily available.

         Zeigler also testified at trial. Zeigler testified that an allegation of sexual harassment would

be a “red flag” if he were considering a job applicant. He testified that an allegation of sexual

harassment is a “serious charge,” and that Miller’s termination for sexual harassment “would make

employment difficult” for him. Zeigler agreed that Miller’s termination for sexual harassment

“substantially foreclosed other comparable employment opportunities” for Miller.5

         Following a bench trial, the trial court denied Miller’s claim for two years of additional

wages and benefits. The court entered the following findings of fact and conclusions of law in

support of its ruling:




          5
            … The Director of Human Resources also agreed at trial that Miller’s termination for sexual harassment would
likely foreclose employment opportunities for M iller.

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                                Findings of Fact

2.    From the time of his termination in the spring of 2001 until the time of trial,
      Miller made no effort to seek employment substantially similar to his position
      with ACCD.

3.    In Miller’s case, substantially similar employment would have included a
      teaching position at a public or private secondary school or institution of
      higher education.

4.    With an exception noted below, Miller’s only employment since the spring
      of 2001 has consisted of jobs building retaining walls and boat docks,
      sodding yards, moving equipment, and building bathrooms.

                                       ***

6.    This employment was not actively sought by Miller, but was offered to him
      without substantial effort on his part.

7.    This employment was not substantially similar to Miller’s job with ACCD.

8.    In August 2006, Miller began teaching part-time at Schreiner University.

9.    Miller did not seek this position; the university contacted him.

10.   In light of its part-time nature, this employment was not substantially similar
      to Miller’s job with ACCD.

11.   Miller has failed to exercise reasonable diligence to seek and maintain
      employment substantially similar to his job with ACCD.

12.   Miller has failed to prove that he could not have secured other employment
      through reasonable diligence.

13.   Miller has failed to prove the amounts he might have earned through the
      exercise of reasonable diligence.

                                       ***

                              Conclusions of Law

1.    A terminated employee has a duty, for a reasonable time after his discharge,
      to seek and accept employment substantially similar to his previous job.



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       2.     After a reasonable time and a reasonable and diligent effort, a terminated
              employee who has been unable to obtain substantially similar employment
              has a duty to seek and accept any work for which he is qualified.

       3.     If a terminated employee fails to exercise reasonable diligence to mitigate his
              damages, any amounts he might have earned through such diligence must be
              offset against the damages resulting from his termination.

       4.     Once a terminated employee’s failure to exercise reasonable diligence has
              been established by the employer, the burden shifts to the employee to show
              the amounts he could have earned through the exercise of reasonable
              diligence.

       5.     Miller’s failure to exercise reasonable diligence and his failure to prove
              whether he could have obtained other employment through the exercise of
              reasonable diligence and the amounts he could have earned through such
              exercise constitute a failure to mitigate damages, which bars his recovery of
              damages beyond the stipulated damage[s] set forth in the parties’ Settlement
              Agreement dated April 13, 2005.

       Miller requested additional findings of fact and amended conclusions of law from the trial

court. The trial court made the following additional findings of fact and amended conclusions of

law:

                                  Additional Findings of Fact

       1.     The newspaper articles reporting that Dr. Miller had been terminated by
              ACCD based on allegations of sexual harassment made any attempts by Dr.
              Miller to seek same or similar employment virtually impossible.

       2.     ACCD’s termination of Dr. Miller based on allegations of sexual harassment
              and the publicity of the sexual harassment allegations has foreclosed other
              comparable employment opportunities for Dr. Miller.

       3.     If ACCD had reinstated Dr. Miller for the 2005-2006 academic year, which
              includes summer employment, Dr. Miller’s salary and benefits would have
              totaled $123,708.49.

       4.     If ACCD had reinstated Dr. Miller for the 2006-2007 academic year, which
              includes summer employment, Dr. Miller’s salary and benefits would have
              totaled $128,833.75.



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                                                ***

                                 Amended Conclusions of Law

       1.      Because failure to mitigate is an affirmative defense, the employer bears the
               burden of proving lack of diligence on the part of the employee and the
               amount by which the employee’s damages were increased by his failure to
               mitigate.

       2.      The general rule as to the correct measure of damages for wrongful discharge
               of an employee is the present cash value of the contract to the employee if it
               had not been breached, less any amounts that the employee should, through
               the exercise of reasonable diligence, have been able to earn through other
               employment.

       After reviewing the fact findings and conclusions of law made by the trial court, we believe

the trial court correctly concluded that Miller cannot recover additional lost wages and benefits for

the 2005-06 and 2006-07 academic years due to his failure to mitigate his damages. The trial court

recognized that Miller was obligated to “seek and accept any work for which he [wa]s qualified”

once it was determined that he could not secure employment substantially similar to his position with

SAC. See Kramer v. Wolf Cigar Stores Co., 99 Tex. 597, 91 S.W. 775, 777 (1906) (holding

terminated employee has a duty, at least for a reasonable time after his or her discharge, to seek

employment comparable to his or her previous job; however, after that time, employee is obligated

to seek and accept any work for which he or she is qualified). Although the trial court found Miller

took positions working construction and teaching part-time, the court determined Miller nonetheless

failed to exercise reasonable diligence following his termination. The record supports the trial

court’s conclusion, as the record indicates that Miller did not actively seek any employment

opportunities following his termination from SAC. The record shows Miller’s friend gave him his

position working construction, while Schreiner University contacted him about its open part-time

teaching position. Given Miller’s lack of reasonable diligence to secure other employment for which


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he was fit following his termination from SAC, we cannot say the trial court’s conclusion that Miller

failed to mitigate his damages is erroneous as a matter of law. Miller’s cross issue is therefore

overruled.

                                           CONCLUSION

       Based on the foregoing, we affirm the trial court’s judgment in all respects.



                                                       Catherine Stone, Justice




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