                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                                NO. 02-16-00489-CV


BELL HELICOPTER TEXTRON,                                                  APPELLANT
INC.

                                           V.

BRIAN BURNETT                                                               APPELLEE

                                        ----------

         FROM THE 153RD DISTRICT COURT OF TARRANT COUNTY
                    TRIAL COURT NO. 153-276130-14

                                        ----------

                                      OPINION

                                        ----------

      The trial court awarded appellee Brian Burnett damages for age

discrimination after appellant Bell Helicopter Textron, Inc. fired him when he was

forty years old. In six issues, Bell Helicopter contends that the evidence is legally

and factually insufficient to support several findings on liability; that the trial court

abused its discretion by awarding Burnett front pay; and that, alternatively, the

labor code caps Burnett’s damages for front pay and for future mental anguish.
We hold that the evidence, although conflicting in some respects, supports the

trial court’s findings on liability and on damages; we decline to second-guess

those findings based on our review of the cold appellate record.          We also

conclude that the labor code does not cap the trial court’s awards for front pay

and for future mental anguish. We therefore affirm the trial court’s judgment.

                                   Background

        Burnett was born in August 1973. He was twenty-two years old in 1996

when he began working for Bell Helicopter—a rotor aircraft business—as a stock

clerk. The stock clerk position required him to pull parts for customers and to

process bills of lading. He worked as a stock clerk for three years before he

became a dispatcher at Bell Helicopter for two years. As a dispatcher, he was

responsible for ensuring that parts reached assemblers on time.

        Burnett later worked in Bell Helicopter’s data release department,

performing clerical work. His main function was to load engineering orders and

drawings into a computer system.       After working in that department for nine

years, he worked in a similar department that was responsible for making

changes to manufacturing plans. He received a fifteen-year service award in

2011.

        In 2012, Burnett obtained a position as a senior manufacturing operations

specialist, his first nonunion job at Bell Helicopter. When he took the position, he

understood that it would be more demanding and that it required different skills

than his union jobs, including enhanced communication skills. The position paid


                                         2
him approximately $47 per hour to oversee the assembly of certain parts and the

transfer of those parts to Bell Helicopter’s representatives in Canada, where the

final assembly of Bell Helicopter’s “412” aircraft—its most profitable helicopter—

occurred. Burnett’s position required him to prepare for and host online meetings

with the Canadian representatives; his job description required him to, among

other    tasks,   prepare   and   deliver   oral   presentations.    The   Canadian

representatives depended on the information from employees in Texas for

planning how the representatives could meet commitments to customers.

        Carisa Kimbro first supervised Burnett in his operations specialist position.

In her first evaluation of Burnett, she described his overall performance as “on

target” and “solid.” She wrote in part,

              Through 2012, Brian has shown great improvement on how he
        manages the 412 program, moving from a more defensive to
        offensive strategy[.] [H]e is becoming better at finding solutions to
        issues earlier and will look for continued improvement in 2013. . . .

                Presentation of information is one of the most important facets
        of this position. In the current environment, conference rooms and a
        directed presentation of program status [are] our major means of
        projecting . . . performance and informing multiple levels of
        management and many customers on our current position. 2013
        should be used to hone the visual presentation of information and
        [to] clearly and concisely present[] the key messages.

               With his prior experience, Brian has a depth of knowledge that
        has aided in his helping train new personnel within the group. We
        will continue to look for Brian to be a major team player . . . .

        In 2012, Rebecca Rosenbaum, who was in her early thirties, began

preparing to replace Kimbro as Burnett’s supervisor. According to Rosenbaum,



                                            3
when she observed Burnett in meetings that year, she concluded that his

“communication was not as crisp or as clear” as other employees and that there

were “significant challenges to his program.”

      During Burnett’s time as an operations specialist, Bell Helicopter’s attempt

to use a new computer system caused significant problems for the entire

company.     Burnett’s department began having daily calls with the Canadian

representatives about the assembly and shipping of transmissions and

gearboxes.    Burnett and Rosenbaum often participated together in the calls.

Also, once a week, Burnett used a PowerPoint presentation to communicate with

the   Canadian   representatives.     The       PowerPoint   presentation   included

information about aircraft parts and about “critical areas that [Burnett] thought

[he] needed to bring to management’s attention.”

      In the first quarter of 2013, Rosenbaum replaced Kimbro. At that time,

Burnett was thirty-nine years old, was balding, and had gray in his beard. In the

spring and summer of 2013, Rosenbaum noticed several problems in Burnett’s

performance. She later explained,

      There were several occasions when he did not turn in deliverables
      on time. His communication in meetings was not at the level that we
      needed to . . . make sure that the audience understood what was
      going on with his program. There was not enough engagement or
      communication with other parties within the plant outside of these
      formal meetings around performance of the programs. . . . There
      wasn’t enough early elevation of issues so that we could prevent
      some of the problems or help problem solve to make better
      decisions to improve the overall performance of the programs that
      he was responsible for.



                                        4
      Rosenbaum had several informal discussions with Burnett about these

concerns. She later testified,

      I always tried to give balanced feedback, but certainly there was
      negative feedback in those meetings . . . .

             So we discussed in detail the areas that needed to be
      improved[.] . . . [T]here was a lot of focus around the need to
      improve communication . . . with myself and leadership within the
      factory, but also communication outside in more formal settings and
      even informal settings with particular customers . . . who were very
      dependent upon the information from our center in order to do their
      own planning and ensure that they could meet their commitments to
      their customers.

      Eventually, Burnett asked Rosenbaum to provide “some relief off the lower

priority programs that [he] had” and “told her if that if somebody could help [him]

with those[,] then [he] could spend more time with the 412 program and help

improve that program.” Rosenbaum responded to his request by giving some of

his work to an older employee so that he could “focus on the communication and

the critical deliverables that were so key to making the programs that he was

responsible for successful.”

      On June 17, 2013, Rosenbaum wrote Burnett a letter that described

problems with his performance. The letter stated that Burnett was not meeting

expectations in two ways:        he was “not completing deliverables on time and

without errors,” and he needed to “improve communication with manufacturing,

assembly, procurement[,] and customers.” Under the subheading relating to not

completing deliverables, the letter referred to a “7:45 Daily Canada Call on 5/16.”




                                          5
Burnett testified that he missed a meeting on that day because he was sick.

Rosenbaum testified,

      We had a daily 7:45 call with . . . Canada, to go over the status of all
      of the key deliverables. We were behind schedule and it was a key
      communication point so that they understood and could plan their
      production schedule.

            As part of this, Mr. Burnett had to provide me daily a status
      update on where all the key deliverables on his program were, and
      on this particular date he did not provide that. I didn’t get any
      information at all and didn’t get anything until a text after the meeting
      was over that he was not coming to work that day.

            ....

            I wrote him up because he didn’t take alternative methods to
      prepare for the meeting.

      Also under the “deliverables” heading, Rosenbaum’s letter described

Burnett’s failure to have an “[e]rror free program review [on] 6/13.” Concerning

this error, according to Burnett, Rosenbaum explained to him that he had made

some font errors on PowerPoint slides and had included unnecessary information

on a slide. Rosenbaum testified regarding that error,

      [T]his particular week in the middle of June, there were a number of
      errors in his program review and on the line of balance, which
      communicates incorrect or less accurate information to the team.

            And, you know, formatting is one piece of that. I think when
      you’re presenting, particularly at that level of the organization, a
      general manager or a VP, formatting is very important. It helps to
      ensure that they’re focused on the right things, and if there is
      formatting or other issues, it’s a distraction and then an executive is
      not taking away the key content that they need to from that
      presentation.




                                         6
      Under the same heading, the letter referred to a “412 Program Review

update for Mike Scruggs 6/14.” With respect to this alleged failure, according to

Burnett, Rosenbaum accused him of failing to complete a program review (a

PowerPoint presentation with “bells and whistles”) but had asked him only to

complete a less-detailed program summary, which he did.              According to

Rosenbaum,

             Mike Scruggs was the VP who the center reported in through.
      And we did regular program reviews for him. And this program
      review was not completed in the way that we had outlined that we
      needed for this review. It was not the first one that we had done for
      him. We changed the format slightly from time to time. But the rest
      of the team was able to deliver the slides, the program review that
      they needed to, and Mr. Burnett’s was insufficient. It didn’t have all
      of the information that was required for that meeting.

      Under the “communication” heading, the letter provided four more alleged

deficiencies: “[p]rioritization based on ship alignment for customer,” “[m]issing

parts on kits—delay for on time start,” “[p]ush Huey II as well as 412 on quills to

meet recovery,” and “[e]mphasis on dates that do not support need or slip.”

Burnett and Rosenbaum later provided testimony about each of these alleged

deficiencies.

      In the letter, Rosenbaum stated that in the next twenty-one days, she

expected Burnett to, among other tasks, make on time and accurate daily reports

to the Canadian representatives; complete, without errors, program reviews;

check in “with assembly . . . to ensure priorities are aligned”; and “[i]ncrease

functionality in Excel including graphs, conditional formatting, formatting, etc.”



                                        7
The letter ended by stating, “This is a written warning to meet expectations for

performance within 21 days or receive additional discipline up to and including

termination.”

      According to Burnett, Rosenbaum’s letter, which he signed,1 “completely

surprised” him. Rosenbaum testified that upon Burnett’s receipt of the letter, he

agreed that he needed to improve in the areas that the letter had described.

Burnett was the only employee to whom Rosenbaum had ever given written

discipline.

      Burnett testified that after he received the letter, he met all of the

expectations, and Rosenbaum told him that he had improved on the areas that

the letter had designated.     But according to Rosenbaum, Burnett’s overall

performance did not improve, and during a conversation that occurred after he

received the letter, he acknowledged to Rosenbaum that he was not meeting her

expectations and that the job was not a “good fit for him.” 2 After Burnett received




      1
       Rosenbaum testified, “Burnett signing the document was, to me, his
agreement with the document.” Rosenbaum testified that she viewed the letter
as a stage within progressive discipline.
      2
       During Burnett’s cross-examination, the following exchange occurred:

             Q. Do you recall telling Ms. Rosenbaum that you didn’t believe
      that the job was a good fit for you?

            A. Not until the -- early August [2013] when she told me that
      things weren’t working out and that I should seek a job somewhere
      else within the company.


                                         8
the letter, Bell Helicopter attempted to find him another job within the company,

but Rosenbaum later testified that “none of the other centers were willing to move

[Burnett] into a position.”

       After giving Burnett the letter, Rosenbaum provided him with a mid-year

evaluation. The evaluation stated in part,

            During the first half of the year Brian’s deliverables often had
      formatting errors and incomplete information. He has worked to
      improve, but continued development of his program review and
      ensuring all end deliverables . . . are included will greatly improve
      the value of this deliverable. Brian needs to work on improving his
      communication around issues that are impacting his program. . . .

             Comments by Brian J Burnett:

              After the format and automated macro changes were made to
      our Program Review slides [i]t took some adjustment and I worked
      . . . on some issues I was having that caused some of the formatting
      issues. There have been improvements made which [have] helped
      to greatly improve the ease of [inputting] data and navigating
      between slides. This has been a challenging year . . . due to all of
      the system changes, labor disruptions, demand volatility, and
      procurement . . . that [have] created many procured parts to start
      late. I have tried hard to give early warning and look to improve
      communication as we work through the many challenges we face on
      a dally basis.

      The evaluation also stated that Burnett had successfully allocated “parts

between his programs,” had “supported legacy spares during the first half of the

year,” had “done [a] great job learning . . . new systems . . . and . . . solving


           Q. So at that time you agreed that the job as senior
      manufacturing operations specialist was not a good fit for you?

            A. It was my opinion after that, after what I had been going
      through with her, yes.


                                        9
issues,” and had “worked hard through a challenging relationship with the

dispatcher supporting his program.” The evaluation cautioned, however, that he

needed to improve “his communication both in tone and frequency.”

      According to Rosenbaum, she decided to fire Burnett in July 2013, when

he was thirty-nine years old. She did not immediately inform him of the decision

because she needed to discuss it with Bell Helicopter’s human resources

department and because Burnett was going on vacation.

      On August 20, 2013, Bell Helicopter officially fired Burnett. He had turned

forty years old sixteen days before his termination. According to Rosenbaum,

she was not aware of Burnett’s age at that time. In a form that Rosenbaum

completed for the termination, she stated that Burnett had “[p]oor communication

skills to management.”

      To replace Burnett, Bell Helicopter promoted Candice Sharp,3 who was

twenty-nine years old and had a younger appearance than Burnett. Regarding

the decision to promote Sharp, Rosenbaum testified,

      [S]he had a strong educational background. She had both a
      bachelor’s [degree] and an MBA.[4] She had also, I believe, just
      received her . . . performance management certificate. She also had
      strong performances on her performance evaluations. She was a
      strong communicator and had worked in the finance organization on

      3
       The record and the parties’ briefs contain different spellings of Sharp’s
name. The reporter’s record refers to her as “Candice Sharp,” and we will use
that spelling.
      4
      Burnett graduated high school and took one business management
course at a junior college.


                                       10
      programs, on the V-22 program at Bell up until that point. And I
      thought she would be an asset to the team.

      Burnett sued Bell Helicopter. He pleaded that Bell Helicopter had violated

section 21.051 of the labor code5 by firing him because of his age. He asked for

an award of damages that included lost wages, lost earning capacity, and mental

anguish. Bell Helicopter answered with a general denial and by pleading several

affirmative defenses, including that it “would have taken the same action in the

absence of the alleged impermissible motivating factor.”

      At a bench trial, Burnett acknowledged that he had made errors on

PowerPoint slides used in his reports to the Canadian representatives.               He

explained that the errors had occurred, in part, because his department had

“other issues going on” and “didn’t have a lot of time to focus on the small details

of a font and formatting, stuff like that.” Burnett also testified that “quite often,” he

saw a younger operations specialist, Greg Isler, make typographical errors on

those presentations without receiving discipline.

      When Burnett’s counsel asked him why he was “here today,” Burnett

responded,

      I’m here because I want to stand up for what I feel is unjust. I don’t
      think that any of the negative documents that are in here accurately
      portray what I gave Bell.




      5
       See Tex. Lab. Code Ann. § 21.051(1) (West 2015). Burnett also pleaded
a claim of racial discrimination, but he nonsuited that claim at trial.


                                           11
            And what I saw out there in the last year of my career made
      me feel that what was happening was older workers being replaced
      with younger people. . . .

              . . . [A]fter I was terminated, I was able to reflect back on the
      last year of my career out there, and I knew what was going on. I
      saw it firsthand. I saw it with my own eyes. And when I found out
      that my position ended up the same way many other positions had
      happened in front of me, I felt like I had to fight. I had to fight
      because it is wrong. I gave my all to that company. I didn’t deserve
      it. And who they replaced me with was not any more qualified than I
      was for that position. And I believe the record shows at the end of
      all this that to be true.

      During Burnett’s cross-examination by Bell Helicopter’s counsel, the

following exchange occurred:

            Q. At any time that [Rosenbaum] was giving you feedback, did
      you think she was doing it because you were 39 years old?

            A. Not because I was 39, no.

Later, Burnett testified that Rosenbaum’s criticism of his performance was

because of his age. He acknowledged that when Rosenbaum gave him written

criticisms of his performance, he was not yet forty years old.            During his

employment at Bell Helicopter, Burnett never told a supervisor that he believed

he was being discriminated against because of his age, and he never filed an

age discrimination complaint with the company’s human resources department.

      Russell Creamer, who had worked closely with Burnett, testified on

Burnett’s behalf.   According to Creamer, Burnett was professional, prepared,

respectful, and hard-working. Creamer testified that Rosenbaum “popp[ed] the

whip” with Burnett.   He explained that Rosenbaum spoke unprofessionally to



                                         12
Burnett and that younger employees received different, more respectful

treatment.6   Creamer believed that Burnett’s age factored into Rosenbaum’s

decision to fire him. He also testified that Sharp, Burnett’s replacement, had a

significantly-younger appearance than Burnett.

      Creamer testified that he had noticed a trend of Bell Helicopter “trying to

get rid of older people and bring in the newer, younger people.” He explained

that there were “lots more” Bell Helicopter employees in their twenties and thirties

than there had been three or four years prior.           Creamer testified that Bell

Helicopter had engaged in “several layoffs and . . . several voluntary separation

packages . . . to get rid of some of the older people and bring in the young.” He

explained, “I’ve never seen [Bell Helicopter] lay off the younger people that they

replace the older people with.”

      In Rosenbaum’s testimony, she expressly denied that she had ever hired

or fired anyone because of age. She testified that in her supervisory role at Bell

Helicopter, she had hired an operations specialist who was in his mid-forties

because she believed he would “do an excellent job in the role.”             She also

testified that other operations specialists that she supervised at Bell Helicopter

were in their late thirties, forties, and fifties, and that she never disciplined any of

those employees. Rosenbaum testified that no employee other than Burnett had

ever accused her of any form of discrimination.

      6
      Creamer testified that he also saw Rosenbaum speaking rudely to other
employees.


                                          13
      Sharp, who no longer worked for Bell Helicopter at the time of the trial,

testified that a “very important” part of her job as an operations specialist was to

have good communication skills. She explained,

      I had to deal with everybody from a VP down to a dispatcher on the
      floor. I had to be able to communicate at all levels and at the level
      that would be expected for that type of employee. I would
      communicate from 6:00 a.m. until 5:00 or whenever I felt like my job
      was done.

      After the trial, the trial court sent a letter to the parties to inform them of its

ruling for Burnett.7 After the parties filed various posttrial documents, the trial

court8 signed a final judgment.         The court awarded Burnett damages of


      7
        Bell Helicopter devotes a significant portion of its argument to its assertion
that language in the trial court’s letter ruling does not rationally support its
findings and its judgment. But the letter ruling is not “competent evidence of the
trial court’s basis for judgment.” Cherokee Water Co. v. Gregg Cty. Appraisal
Dist., 801 S.W.2d 872, 878 (Tex. 1990); Burgess v. Denton Cty., 359 S.W.3d
351, 359 n.37 (Tex. App.—Fort Worth 2012, no pet.) (citing Cherokee Water and
concluding that a trial court’s prejudgment letter to the parties stating the basis
for judgment did not constitute findings of fact or conclusions of law); see AIMS
ATM, LLC v. Sanip Enters., No. 01-13-00155-CV, 2014 WL 810839, at *1 n.1
(Tex. App.—Houston [1st Dist.] Feb. 27, 2014, no pet.) (mem. op.) (“Explanatory
letters from the trial court preceding a judgment do not impact the standard or
scope of our appellate review.”). Thus, we decline to analyze whether the
rationale that the trial court expressed in its letter supports its judgment. But see
In re Estate of Miller, 446 S.W.3d 445, 452 (Tex. App.—Tyler 2014, no pet.)
(relying on language in a letter as expressing a trial court’s findings and
conclusions when the court did not file formal findings of fact and conclusions of
law).
      8
        During the course of the proceedings below, this case was transferred
from the 153rd District Court to the 48th District Court and then back to the 153rd
District Court. The presiding judge of the 153rd District Court conducted the
bench trial; the presiding judge of the 48th District Court signed the judgment;
and the presiding judge of the 153rd District Court ruled on postjudgment
matters, including issuing findings of fact and conclusions of law.


                                          14
$864,420.51. The court also awarded him $50,200 in attorney’s fees incurred in

the trial court, additional sums for conditional appellate attorney’s fees, and

costs. The court entered the following findings of fact and conclusions of law,

among other findings and conclusions:

                              FINDINGS OF FACT

           1. Plaintiff was forty (40) years old when he was terminated by
      Defendant. Plaintiff had gray in his beard and hair.

            2. Plaintiff was employed by Defendant for over seventeen
      (17) years.      During his 17[-]year employment, Plaintiff was
      repeatedly praised for his work, often promoted, and his last annual
      performance evaluation rated his work as “on target, solid
      performance.”

            3. Plaintiff’s supervisor was Rebecca Rosenbaum. Rebecca
      Rosenbaum was thirty-two (32) years old. Rebecca Rosenbaum
      had recently replaced [Plaintiff’s] prior supervisor and had little
      experience in operations management. Rebecca Rosenbaum made
      the decision to terminate Plaintiff.

            4. Defendant replaced Plaintiff with an employee who was
      twenty-nine (29) years old.

            5. Plaintiff’s age was a motivating factor in Defendant’s
      termination of Plaintiff.

           6. Defendant would not have terminated Plaintiff when it did
      absent the age[-]motivating factor.

           7. Defendant’s stated reason for terminating Plaintiff was a
      mere pretext for unlawful age discrimination.

            8. Defendant failed to follow its policies in the discipline and
      termination of Plaintiff.

             9. Plaintiff’s co-worker Richard Creamer[,] who worked next to
      Plaintiff[,] testified that in his opinion, Rebecca Rosenbaum
      terminated Plaintiff due to his age.



                                        15
            ....

                             CONCLUSIONS OF LAW

             1. Defendant terminated Plaintiff because of his age in
      violation of [section] 21.051 of the Texas Labor Code.

      After unsuccessfully moving for a new trial, Bell Helicopter brought this

appeal.

                   The Sufficiency of the Evidence on Liability

      In its first four issues, Bell Helicopter argues that the evidence is legally or

factually insufficient to support findings that undergird the trial court’s age-

discrimination conclusion.    Bell Helicopter challenges the sufficiency of the

evidence to show that age was a motivating factor in Burnett’s termination; that

Bell Helicopter’s stated reason for terminating Burnett was a pretext for unlawful

discrimination; that Bell Helicopter would not have terminated Burnett without an

age-related motivation; and that Rosenbaum “took [into] account” a statement by

Bell Helicopter’s CEO, John Garrison, that he wanted the company to hire “fresh

faces right out of college.” We will consider these challenged findings, including

the sufficiency of the evidence to support them, together.

      Bell Helicopter argues that Burnett was “ultimately terminated because of

his poor communication skills and poor weekly presentations to management”

and that there is “no probative evidence that age had anything to do with . . .

Rosenbaum’s [termination] decision.”      Burnett contends that Bell Helicopter’s

arguments depend upon “disputed evidence that disregards the basis for the trial



                                         16
court’s judgment.” He asserts that this is the “classic case in which the factfinder

must resolve disputed facts after . . . evaluating the truth of competing versions of

events.”

Standards of review

      We may sustain a legal sufficiency challenge only when the record

discloses a complete absence of evidence of a vital fact, the court is barred by

rules of law or of evidence from giving weight to the only evidence offered to

prove a vital fact, the evidence offered to prove a vital fact is no more than a

mere scintilla, or the evidence establishes conclusively the opposite of a vital

fact. Ford Motor Co. v. Castillo, 444 S.W.3d 616, 620 (Tex. 2014) (op. on reh’g);

Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998), cert.

denied, 526 U.S. 1040 (1999). In determining whether there is legally sufficient

evidence to support a finding, we must consider evidence favorable to the finding

if a reasonable factfinder could and disregard evidence contrary to the finding

unless a reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas,

228 S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807,

827 (Tex. 2005).

      Anything more than a scintilla of evidence is legally sufficient to support the

finding. Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996).

But when the evidence offered to prove a vital fact is so weak as to do no more

than create a mere surmise or suspicion of its existence, the evidence is no more

than a scintilla and, in legal effect, is no evidence. King Ranch, Inc. v. Chapman,


                                         17
118 S.W.3d 742, 751 (Tex. 2003), cert. denied, 541 U.S. 1030 (2004) (citing

Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).            More than a

scintilla of evidence exists if the evidence furnishes some reasonable basis for

differing conclusions by reasonable minds about the existence of a vital fact.

Rocor Int’l, Inc. v. Nat’l Union Fire Ins. Co., 77 S.W.3d 253, 262 (Tex. 2002).

      Any ultimate fact may be proved by circumstantial evidence. Russell v.

Russell, 865 S.W.2d 929, 933 (Tex. 1993).              A fact is established by

circumstantial evidence when the fact may be fairly and reasonably inferred from

other facts proved in the case. Id.

      When reviewing an assertion that the evidence is factually insufficient to

support a finding, we set aside the finding only if, after considering and weighing

all of the evidence in the record pertinent to that finding, we determine that the

credible evidence supporting the finding is so weak, or so contrary to the

overwhelming weight of all the evidence, that the answer should be set aside and

a new trial ordered. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986)

(op. on reh’g); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Garza v. Alviar,

395 S.W.2d 821, 823 (Tex. 1965).

      In a bench trial, “the trial court, as fact finder, is the sole judge of the

credibility of the witnesses.    The trial court may take into account all the

surrounding facts and circumstances in connection with the testimony of each

witness and accept or reject all or any part of that testimony.” Shear Cuts, Inc. v.

Littlejohn, 141 S.W.3d 264, 270–71 (Tex. App.—Fort Worth 2004, no pet.)


                                        18
(citation omitted); see also Scott v. Christian Methodist Episcopal Church,

No. 02-10-00434-CV, 2012 WL 42991, at *2 (Tex. App.—Fort Worth Jan. 5,

2012, no pet.) (mem. op.) (explaining that unlike a factfinder, an appellate court

does not witness “the demeanor of those testifying—their voice inflections, body

movements, pauses in speech, and other overall visual and verbal cues—which

can affect the [factfinder’s] determination of the veracity of their testimonies”).

Liability for age discrimination under chapter 21 of the labor code

      The Legislature enacted chapter 21 of the labor code to “secure for

persons in this state . . . freedom from discrimination in certain employment

transactions.”9 Tex. Lab. Code Ann. § 21.001(4) (West 2015). Under chapter

21, an employer commits an unlawful employment practice by discharging an

employee because of age.         Id. § 21.051(1).     The provisions of chapter 21

prohibiting discrimination because of age “apply only to discrimination against an

individual 40 years of age or older.”      Id. § 21.101 (West 2015); see Mission

Consol. ISD v. Garcia, 372 S.W.3d 629, 638 n.54 (Tex. 2012) (“Under both state

and federal law, the protected class for age discrimination claims consists of

those 40 years of age and older.”). A discharge is unlawful if the plaintiff proves

that age was a “motivating factor,” even if other factors also motivated the

      9
        The Legislature intends to correlate state law with federal law in
employment discrimination cases; thus, we may rely on federal decisions to
interpret and apply chapter 21. Burton v. Carter BloodCare, No. 02-11-00003-
CV, 2012 WL 42899, at *5 n.7 (Tex. App.—Fort Worth Jan. 5, 2012, no pet.)
(mem. op.); see Cox v. Waste Mgmt. of Tex., Inc., 300 S.W.3d 424, 432 (Tex.
App.—Fort Worth 2009, pet. denied).


                                          19
discharge. Tex. Lab. Code Ann. § 21.125(a) (West 2015). Upon finding that an

employer discriminated against an employee under chapter 21, a court may

generally award the employee damages, attorney’s fees, and costs.              Id.

§§ 21.2585(a)(1), .259(a) (West 2015). But see id. § 21.125(b) (stating that if an

employer demonstrates that it would have taken the same action in the absence

of the impermissible motivating factor, the court may grant declaratory and

injunctive relief along with attorney’s fees but may not award damages).

      In chapter 21 discrimination cases that have not been tried on the merits,

we apply a burden-shifting analysis. See Wal-Mart Stores, Inc. v. Canchola, 121

S.W.3d 735, 739 (Tex. 2003). First, the plaintiff must prove a prima facie case of

discrimination. Burton, 2012 WL 42899, at *6. The prima facie case includes

four elements that Burnett established:    he was in the protected class (meaning

that he was at least forty years old), he was discharged while in the protected

class, he was qualified for the position from which he was discharged, and he

was replaced by someone younger. Mission Consol. ISD, 372 S.W.3d at 642;

see also Reeves v. Sanderson Plumbing Products, 530 U.S. 133, 142, 120 S. Ct.

2097, 2106 (2000). If the plaintiff proves a prima facie case, the defendant must

show a nondiscriminatory reason for the employment decision, and the plaintiff

must then show that the defendant’s reason was a pretext for unlawful

discrimination. Burton, 2012 WL 42899, at *6.

      But when, as here, a discrimination case has been fully litigated, we do not

use the burden-shifting analysis. Wal-Mart Stores, 121 S.W.3d at 739. Instead,


                                          20
we ask “whether the evidence is . . . sufficient to support the [factfinder’s] ultimate

finding” that unlawful discrimination was a motivating factor for the employment

decision. See id.; see also Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473,

480 (Tex. 2001) (emphasizing that “‘a motivating factor’ is the correct standard of

causation for the plaintiff in all [chapter 21] unlawful employment practice

claims”).

      Even in a fully-litigated case, however, the factfinder still considers the

credibility of the employer’s reasons for termination and whether those reasons

were a pretext for unlawful discrimination. See Wal-Mart Stores, 121 S.W.3d at

739–40 (emphasizing that a plaintiff must show that the reason for termination

proffered by the employer was false and that discrimination was the real reason);

Elgaghil v. Tarrant Cty. Junior Coll., 45 S.W.3d 133, 140 (Tex. App.—Fort Worth

2000, pet. denied) (stating the same). Direct or circumstantial evidence may

prove discrimination. Harris Cty. Hosp. Dist. v. Parker, 484 S.W.3d 182, 196

(Tex. App.—Houston [14th Dist.] 2015, no pet.); see Reeves, 530 U.S. at 141,

120 S. Ct. at 2105 (noting that there will seldom be testimony concerning an

employer’s mental processes); Mission Consol., 372 S.W.3d at 634 (explaining

that discriminatory “motives are often more covert than overt”); Coll. of the

Mainland v. Glover, 436 S.W.3d 384, 392 (Tex. App.—Houston [14th Dist.] 2014,

pet. denied) (recognizing that direct evidence of discrimination is rare).

      In its fifth and sixth findings of fact, the trial court found that Burnett’s age

motivated Bell Helicopter’s termination decision and that Bell Helicopter would


                                          21
not have terminated him “absent the age[-]motivating factor.”        In its seventh

finding of fact, the trial court found that Bell Helicopter’s proffered reason for

terminating Burnett’s employment was a pretext for unlawful discrimination.

Defending these findings, Burnett asserts that the evidence shows a lack of

credibility in the basis for termination proffered by Bell Helicopter. See Reeves,

530 U.S. at 143–47, 120 S. Ct. at 2106–08 (explaining that a plaintiff may show

intentional discrimination by proving that an employer’s reasons for termination

were unworthy of credence).

      We agree that in its role as the sole judge of the witnesses’ credibility, the

trial court could have found that Bell Helicopter’s basis for terminating Burnett

was not credible and that this lack of credibility served as proof of an age-

discriminatory motive for the termination. Rosenbaum testified that Burnett did

not communicate as crisply or as clearly as other employees. She explained that

he had poor interaction with other employees and that his “communication in

meetings was not at the level that [Bell Helicopter] needed to . . . make sure that

the audience understood what was going on with his program.” She testified that

before firing Burnett, she had talked with him about his need to improve

communication in formal and informal settings.

      With regard to the specific problems with Burnett’s performance that she

included in his written discipline letter, Rosenbaum testified that (1) on one

occasion, he had failed to provide a status update for use in a meeting with the

Canadian representatives; (2) on a day in June 2013, he had made a “number of


                                        22
errors in his program review and on the line of balance, which communicates

incorrect or less accurate information to the team”; (3) on another day in June

2013, he had failed to complete a program review in the way she had requested;

(4) he had failed to properly prioritize the delivery of certain aircraft parts over

others; (5) he had failed to ensure that there were no “gaps” in kits of parts

needed to build gearboxes; and (6) he needed to be more proactive in finding

solutions to problems within manufacturing that caused assembly delays.           In

sum, Rosenbaum testified that she terminated Burnett’s employment “because

his performance did not meet expectations and he was not performing at the

same level as his colleagues who were doing similar work.”

      Burnett testified, however, that before Rosenbaum began supervising him,

Kimbro had evaluated him as having an “on target” and “solid” performance, and

she had written that he would be considered a “major team player” in the future

at Bell Helicopter. Although Kimbro’s 2012 evaluation stated that Burnett should

use 2013 to “hone visual presentation of information and clearly and concisely

present[] the key messages,” it nonetheless expressed her overall approval of his

performance, reciting that each day, he was “learning something new and getting

stronger in his position.”    Evidence that an employer is “pleased with an

employee’s work performance supports a finding of pretext when that evidence

contradicts the reason given by the employer of poor performance.” Dell, Inc. v.

Wise, 424 S.W.3d 100, 112 (Tex. App.—Eastland 2013, no pet.).




                                        23
       Burnett also testified that many of his department’s problems in ensuring

that it collected parts necessary for assembling gearboxes stemmed from Bell

Helicopter’s switch to a new computer program in 2013. He provided testimony

about each of Rosenbaum’s alleged concerns with his performance detailed

above and explained how the concerns were misplaced, beyond his control, or

insignificant.   He also testified that after receiving Rosenbaum’s letter, he

performed all of the tasks that she had sought his improvement on, and she told

him that he had improved his performance.

       After hearing all of this evidence, the trial court rejected Bell Helicopter’s

proffered reasons for terminating Burnett’s employment as a “mere pretext for

unlawful age discrimination.” The evidence does not persuade us to second-

guess that finding. See Laxton v. Gap Inc., 333 F.3d 572, 585 (5th Cir. 2003)

(“[T]he parties presented the jury with two competing versions of [the employee’s]

termination. . . . It is the province of the [factfinder] to judge the credibility of

witnesses and resolve conflicts in the evidence, and we will not second-guess its

rejection of [the employer’s] proffered justification.”).

       Moreover, Burnett testified that to the extent that he deficiently performed

his job functions, Isler, a younger employee,10 had similar deficiencies without


       10
         Burnett initially testified that Isler was “quite a bit younger” than he was;
he described Isler as being in his “early thirties.” He later testified, in responding
to a representation by Bell Helicopter’s counsel, that he had no reason to doubt
that Isler was two years younger than he was, although he stated that Isler had a
“baby face.” Rosenbaum testified that when she supervised Isler, he was in his
late thirties. The trial court could have resolved these testimonial conflicts in

                                           24
receiving discipline. See Kaplan v. City of Sugar Land, 525 S.W.3d 297, 308

(Tex. App.—Houston [14th Dist.] 2017, no pet.) (explaining that a plaintiff may

establish that an employer’s proffered reason for an employment action is

pretextual “by showing that the employer treated the plaintiff more harshly than

other similarly situated employees for nearly identical conduct”); see also Lee v.

Kan. City S. Ry. Co., 574 F.3d 253, 260 (5th Cir. 2009) (stating that compared

employment actions will be deemed to have been taken under nearly identical

circumstances when employees held the same job or responsibilities, shared the

same supervisor or had employment status determined by same person, and had

essentially comparable violation histories); Agoh v. Hyatt Corp., 992 F. Supp. 2d

722, 737 (S.D. Tex. 2014) (stating that one way to show that a defendant’s

proffered ground for termination is not credible is through “a disparate treatment

theory using comparators”).     Burnett testified that Isler was “responsible for

commercial aircraft as well as . . . the similar programs that [Burnett] had.” He

explained, “[Isler] and I worked . . . side by side physically and our programs

were very much alike. . . .”

      In describing the kinds of errors that he and Isler made, Burnett testified,

      From one day to the next, there may be a date that’s wrong. Just a
      date of the presentation, you know, just as simple as that. It may be
      when you go in -- we did meetings once a week for these
      PowerPoint slides. We’re both guilty of not updating that next
      week’s date. It showed last week’s date, you know, stuff like that.

favor of Burnett’s original assertion that Isler was substantially younger than he
was. See Shear Cuts, Inc., 141 S.W.3d at 270–71.


                                        25
      So it wasn’t anything that affected the manufacturing process or the
      schedule, but we were both, you know, guilty of that. You know,
      those things that I was being written up for were very similar.

Later, Burnett testified,

      [Isler] was under the same constraints that I was. Many of his
      programs were delayed on time starts.         There were errors,
      formatting and typographical errors, on his program slides. They
      were no different than mine. And he was treated better than I was.

             ....

             I worked right next to him 12 to 14 hours a day, and he was
      treated differently than I was. He wasn’t hounded like I was. . . .
      [T]here were numerous occasions after the write-up that
      [Rosenbaum] would come out of her office and come physically
      running up to me and show me a date and a transmission and tell
      me, [“]This has got to go today. This has got to go today, no matter
      what.[”] And all the weeks leading up to that point, and to that day,
      every day that I would report on my parts, it clearly showed that we
      were still short parts for this transmission. And even if we had all the
      parts, it would take, at a minimum, three days to complete the
      transmission. . . .

            She would come to me [and say], [“]This has got to go today,
      no exceptions.[”]

            [“][Rosenbaum], the transmission is not even in assembly yet.
      We’re missing parts. It can’t go today.[”]

            And I would speak to her just like that. And, [“]I don’t care.
      Find a way.[”] And she’d storm off.

           Greg Isler, sitting 2 feet away from me, many of his
      assemblies were in the same arena. They were short parts. They
      were promised two days ago. And they’re not even in assembly.
      That was being -- I was being treated differently. That same
      product, that same transmission I was getting unjustly beat up on
      when he wasn’t.

             ....




                                        26
             . . . [T]here were occasions that [Rosenbaum] would discuss
      with [Isler] certain things that needed to be done on his program, but
      not to the degree that she did with me.

Burnett also explained that Rosenbaum chose Isler to attend training that Burnett

told her he wanted to go to.

      From Burnett’s testimony disputing his alleged deficiencies and describing

Isler’s more favorable treatment, the trial court could have reasonably concluded

that Bell Helicopter’s grounds for his termination were not credible. See Wal-

Mart Stores, 121 S.W.3d at 739–40; Elgaghil, 45 S.W.3d at 140. And from this

evidence, the trial court could have found that the real reason for the termination

was age discrimination. See Reeves, 530 U.S. at 147, 120 S. Ct. at 2108 (“[I]t is

permissible for the trier of fact to infer the ultimate fact of discrimination from the

falsity of the employer’s explanation [of the grounds for termination].” (emphasis

omitted)).

      Further, Russell Creamer, who was employed at Bell Helicopter during

Burnett’s tenure and at the time of trial, testified that he worked closely with

Burnett and had “quite a bit of interaction” with him;11 that Burnett was a good,

professional, and resourceful employee; that he watched Rosenbaum supervise

and direct Burnett; that Rosenbaum acted more respectfully with younger

employees than with older employees; that Bell Helicopter’s trend in nonunion

positions was “trying to get rid of older people and bring in the newer, younger

      11
       More specifically, Creamer testified that on a daily basis, he and Burnett
worked together to obtain aircraft parts.


                                          27
people”; and that Bell Helicopter tended to lay off older employees before laying

off younger employees. From these facts, Creamer concluded that Rosenbaum

terminated Burnett’s employment because of his age.              Creamer’s opinion

testimony, which tethered to his first-hand observations of Burnett, of

Rosenbaum, and of Bell Helicopter’s hiring and firing practices, further supports

the trial court’s age-motivation findings.12 See Haun v. Ideal Indus., 81 F.3d 541,

548 (5th Cir. 1996) (holding that in an age discrimination case, a plaintiff’s

coworker’s testimony that the employer was “phasing out older workers” was

admissible to prove discrimination); Hansard v. Pepsi-Cola Metro. Bottling Co.,

865 F.2d 1461, 1465 (5th Cir.) (relying on a coworker’s opinion of an employer’s

age motivation for the plaintiff’s termination because even though the coworker

did not have “knowledge of the circumstances leading to . . . termination,” the

coworker’s opinion “rested on his experience” with the employer), cert. denied,

493 U.S. 842 (1989); see also Tex. R. Evid. 701 (permitting lay witness opinion

testimony when the testimony is rationally based on the witness’s perception and

is helpful to determining a fact in issue); Gossett v. Okla. ex rel. Bd. of Regents

      12
        Bell Helicopter relies on Lind v. UNC, Inc. to argue that Creamer’s
testimony is not probative of discrimination. 36 F. Supp. 2d 350, 359 (N.D. Tex.
1999).    But there, two of the three coworkers who opined about age
discrimination against the plaintiff were not employees at the time of the plaintiff’s
termination, and none of the three coworkers demonstrated “requisite personal
knowledge” supporting their opinions. Id. We therefore conclude that Lind is
distinguishable. See id.; see also Armendariz v. Pinkerton Tobacco Co., 58 F.3d
144, 153 (5th Cir. 1995) (holding that a coworker’s opinion of discrimination
against the plaintiff was not probative when the coworker admitted that the
opinion was “only conjecture”), cert. denied, 516 U.S. 1047 (1996).


                                         28
for Langston Univ., 245 F.3d 1172, 1178–80 (10th Cir. 2001) (citing Hansard and

reaching a similar conclusion).13

      We recognize that the record contains evidence—in addition to Bell

Helicopter’s proffered age-neutral termination justification, which the trial court

rejected—that weighs against the trial court’s challenged findings and conclusion

on age discrimination.    For example, Burnett testified that he never told any

supervisor that he was being discriminated against because of age while

employed at Bell Helicopter and never filed an age-discrimination complaint.

Also, the evidence showed that Rosenbaum did not discipline or terminate

supervised employees who were older than Burnett.           We cannot conclude,

however, that in balancing this and other evidence weighing against a finding of

      13
         To prove discriminatory animus, Burnett also relies on evidence showing
that Bell Helicopter’s CEO, John Garrison, wanted to bring new college
graduates into the company. We do not rely on this evidence in reaching our
holding that the remaining evidence is sufficient to support the trial court’s
conclusion of law on discrimination and its judgment. Thus, we decline to
address Bell Helicopter’s argument that the evidence is insufficient to support the
trial court’s tenth finding of fact, which relates to Garrison’s statement about
hiring new college graduates, and we overrule his third issue. See Tex. R. App.
P. 47.1 (“The court of appeals must hand down a written opinion that is as brief
as practicable but that addresses every issue raised and necessary to final
disposition of the appeal.”); Mehan v. WAMCO XXVIII, Ltd., 138 S.W.3d 415, 419
n.4 (Tex. App.—Fort Worth 2004, no pet.) (declining to address the sufficiency of
evidence to prove a finding of fact when other findings supported challenged
conclusions of law).

       We also do not predicate our holding on Burnett’s narrative response
(which we have quoted above) to his counsel’s question about why he had sued
Bell Helicopter; we recognize that an employee’s subjective belief of
discrimination, standing alone, cannot support a claim under chapter 21. Herbert
v. City of Forest Hill, 189 S.W.3d 369, 375 (Tex. App.—Fort Worth 2006, no pet.).


                                        29
discriminatory animus, the trial court unreasonably gave more weight to the

evidence and inferences supporting age discrimination, which we have discussed

above. See Robertson v. Robertson, 323 S.W.2d 938, 942 (Tex. 1959) (stating

that the factfinder has the “sole right to weigh the evidence” and that an appellate

court may not “substitute its findings and conclusions for that of the [factfinder]”).

      Finally, we recognize that if, as the dissenting opinion proposes, the law

does not allow for an employer’s acts that occur before an employee turns forty

years old to serve as circumstantial evidence of discriminatory animus for

termination that occurs after the employee turns forty, Burnett’s age

discrimination claim could not succeed. As the dissenting opinion states, all of

the circumstantial evidence that Burnett relies on to show discriminatory animus

relates to facts that occurred before he turned forty. But we do not read the

applicable provisions of the labor code as narrowly as the dissenting opinion,

which would appear to hold that the employee must prove that the employer

discriminated against the employee because the employee was over forty.

Rather, construing the labor code’s provisions together with federal decisional

authority, we conclude that an employee must show that the employer

discriminated “because of . . . age” and that the employee was at least forty when

the ultimate act of discrimination—the termination—occurred.           See Tex. Lab.

Code Ann. §§ 21.051, 21.101; O’Connor v. Consol. Coin Caterers Corp., 517

U.S. 308, 312, 116 S. Ct. 1307, 1310 (1996) (explaining that federal law “does

not ban discrimination against employees because they are aged 40 or older; it


                                          30
bans discrimination against employees because of their age, but limits the

protected class to those who are 40 or older”); Charles v. D.C. Dep’t of Youth

Rehab. Servs., 690 F. App’x 14, 16 (D.C. Cir. 2017) (explaining that the

“prohibited act of discrimination occurs when a decision to terminate is made

final, is communicated to the employee, and is no longer subject to

reconsideration”); Brown v. Northside Hosp., 311 F. App’x 217, 222 (11th Cir.

2009) (explaining that federal law “prohibits an employer from discriminating

against a person who is forty or older on the basis of age”).

      For all of these reasons, applying the standards of review articulated

above, we hold that the evidence is legally and factually sufficient to support the

trial court’s challenged age-discrimination liability findings—its fifth, sixth, and

seventh findings of fact. See Ford Motor Co., 444 S.W.3d at 620; Pool, 715

S.W.2d at 635; Cain, 709 S.W.2d at 176. We overrule Bell Helicopter’s first,

second, and fourth issues.

                                    Damages

      In its fifth issue, Bell Helicopter argues that the trial court erred by

awarding Burnett $565,563.87 for “lost wages in the future,” otherwise known as

front pay. Bell Helicopter contends that (1) the trial court could not award front

pay because Burnett did not prove that reinstatement to his position at Bell

Helicopter was not feasible; and (2) even if Burnett proved that reinstatement

was not feasible, he did not present competent evidence proving an amount of




                                        31
front pay. In its sixth issue, Bell Helicopter argues that any damages for front pay

and for future mental anguish were subject to a statutory cap.

Front pay

      “Front pay” is a wrongfully-discharged plaintiff’s compensation for future

lost wages and benefits.     Office of the Att’y Gen. of Tex. v. Rodriguez, 535

S.W.3d 54, 83 (Tex. App.—El Paso 2017, pet. filed); Dell, Inc., 424 S.W.3d at

114. A front pay award serves to make victims of discrimination “whole in cases

where the factfinder can reasonably predict that the plaintiff has no reasonable

prospect of obtaining comparable alternative employment.” Whittlesey v. Union

Carbide Corp., 742 F.2d 724, 729 (2d Cir. 1984).

      We review a factfinder’s equitable award of front pay for an abuse of

discretion.   River City Care Ctr. v. Taylor, No. 04-14-00078-CV, 2015 WL

3773362, at *1 (Tex. App.—San Antonio June 17, 2015, pet. denied) (mem. op.);

Tex. Youth Comm’n v. Koustoubardis, 378 S.W.3d 497, 502 (Tex. App.—Dallas

2012, no pet.). A trial court abuses its discretion if it acts arbitrarily and without

reference to guiding rules or principles. Koustoubardis, 378 S.W.3d at 502. The

factfinder has wide latitude in determining front pay issues.        Rodriguez, 535

S.W.3d at 83.

      Feasibility of reinstatement

      Front pay is an equitable alternative only when reinstatement is not

feasible. Taylor, 2015 WL 3773362, at *2; see Wal-Mart Stores, Inc. v. Davis,

979 S.W.2d 30, 45 (Tex. App.—Austin 1998, pet. denied). The employee bears


                                         32
the burden of showing that reinstatement is not feasible. Hansard, 865 F.2d at

1469–70.

      Reinstatement is “by far the preferred remedy.”           Palasota v. Haggar

Clothing Co., 499 F.3d 474, 489 (5th Cir. 2007); see Roush v. KFC Nat’l Mgmt.

Co., 10 F.3d 392, 398 (6th Cir. 1993) (stating that reinstatement is the

“presumptively favored equitable remedy” and should be granted “in the ordinary

case”), cert. denied, 513 U.S. 808 (1994). But reinstatement may not be feasible

when practicalities such as the unavailability of a position for reinstatement, the

displacement of a current employee, or the plaintiff’s career change make

reinstatement unavailable or when excessive hostility or animosity exists

between the parties.     See Palasota, 499 F.3d at 489; Thorne v. City of El

Segundo, 802 F.2d 1131, 1137 (9th Cir. 1986).

      We conclude that the trial court did not abuse its discretion by implicitly

finding14 that Burnett’s reinstatement to a position at Bell Helicopter was not

feasible. See Woodhouse v. Magnolia Hosp., 92 F.3d 248, 257 (5th Cir. 1996)

      14
          We recognize that a trial court should ordinarily articulate its reasons for
awarding front pay in lieu of reinstatement. Giles v. Gen. Elec. Co., 245 F.3d
474, 489 n.27 (5th Cir. 2001). But in the trial court, Bell Helicopter did not object
to the lack of a finding on the feasibility of reinstatement, and on appeal, it does
not contest the trial court’s award of front pay on the ground that the court did not
make an explicit finding concerning the feasibility of reinstatement. We cannot
reverse a trial court’s judgment on unpreserved or unassigned error. See Pat
Baker Co. v. Wilson, 971 S.W.2d 447, 450 (Tex. 1998); see also Jackson v. Host
Int’l, Inc., 426 F. App’x 215, 224 (5th Cir. 2011) (“For the first time on appeal,
Host argues that the district court erred when it made no express finding on
reinstatement. Since Host did not make this argument to the district court, it is
waived.”).


                                         33
(“A district court’s decision whether to reinstate or award front pay is reviewed

only for an abuse of discretion.”).       The evidence shows that following the

termination of Burnett’s employment, he became significantly distressed and

anxious. He testified, “I just felt empty inside. I was confused. I was in shock. I

was scared . . . about my financial future. . . . I couldn’t sleep . . . . I didn’t know

what to do. . . . [I]t took me a while to . . . pull myself together.” While Burnett’s

testimony in this regard does not necessarily reflect continuing animosity or

hostility between the parties,15 the trial court could have reasonably relied on the

testimony to find that reinstating Burnett to a position at Bell Helicopter was

impractical and unrealistic. See Pollard v. E.I. du Pont de Nemours & Co., 532

U.S. 843, 846, 121 S. Ct. 1946, 1948 (2001) (explaining that an employee’s

reinstatement may not be “viable because of . . . psychological injuries suffered

by the plaintiff as a result of the discrimination”); U.S. E.E.O.C. v. W&O, Inc., 213

F.3d 600, 619 (11th Cir. 2000) (explaining that in deciding whether to compel

reinstatement, a trial court may consider whether the plaintiff’s termination of

employment harmed his emotional well-being).

      Furthermore, Burnett testified that after Bell Helicopter terminated his

employment, he looked for similar employment before passing an insurance

license examination and agreeing to join his wife’s insurance agency. The trial

court could have reasonably relied on Burnett’s career change to find that

      15
        As Bell Helicopter emphasizes, Rosenbaum no longer works for Bell
Helicopter in Texas.


                                          34
reinstatement with Bell Helicopter was not feasible. See Palasota, 499 F.3d at

489.

       We conclude that the trial court did not abuse its discretion by implicitly

finding that Burnett’s reinstatement with Bell Helicopter was not feasible. See

Woodhouse, 92 F.3d at 257. We overrule Bell Helicopter’s fifth issue to the

extent that it argues otherwise.

       The amount of front pay

       Bell Helicopter next argues that no competent evidence established a

proper amount of front pay.        Because of the speculative nature of front-pay

damages, a plaintiff is not required to prove an exact amount of future lost wages

but only facts from which a factfinder may determine a proper amount.

Rodriguez, 535 S.W.3d at 83; see Dell, Inc., 424 S.W.3d at 114 (“Front-pay

calculations are inherently speculative because of their prospective nature and

are arrived at through intelligent guesswork.”). An award of front pay does not

depend on the introduction of expert testimony. Franchina v. City of Providence,

881 F.3d 32, 59–60 (1st Cir. 2018). We will uphold the award when there is

some evidence that a substantial loss occurred and there is a reasonable basis

for estimating the amount of the loss. Dell, Inc., 424 S.W.3d at 114; see Traxler

v. Multnomah Cty., 596 F.3d 1007, 1014 (9th Cir. 2010) (explaining that an award

of front pay is not an abuse of discretion merely because “reasonable minds

might disagree regarding the amount”).




                                          35
      “Absent evidence to the contrary, it should be assumed that an illegally

discharged employee would have continued working for the employer until

retirement.” Dell, Inc., 424 S.W.3d at 114. Factors that a court may use in

determining an amount of front pay include the length of 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 other non-

discriminatory factors which could validly affect the employer/employee

relationship. Downey v. Strain, 510 F.3d 534, 544 (5th Cir. 2007)

      Bell Helicopter’s argument concerning the amount of front pay that the trial

court awarded focuses on whether the court properly admitted Plaintiff’s Exhibit

12, a summary of Burnett’s lost wages, and if so, whether that exhibit adequately

supported the trial court’s award. Indeed, Bell Helicopter asserts that Plaintiff’s

Exhibit 12 is the “only arguable” evidence supporting an award of front pay. The

exhibit states in part,

            Mr. Burnett’s hourly rate at Bell was $48.54. Mr. Burnett was
      terminated on August 20, 2013. . . .

             ....

             Mr. Burnett’s total net lost wages in the past are $204,312.00
      (lost wages less unemployment and other wages). . . .

             From January, 1, 2016 Mr. Burnett will continue to have lost
      wages in the amount of at least $76,000 a year until age 67, totaling
      $1,824,000 before reduced for present value. When this amount of
      future lost wages is reduced for present value over 24 years at a 5%
      discount rate the total future lost wages equals $565,563.87.




                                        36
      Bell Helicopter argues that the trial court erred by admitting this exhibit

over its hearsay objection.16 Bell Helicopter contends that because the exhibit

“should have been excluded . . . and there [is] no other evidence in the record

regarding front pay, there is . . . insufficient evidence to support the trial court’s

award.”

      We disagree with Bell Helicopter’s foundational premise that Plaintiff’s

Exhibit 12 is the only evidence that the trial court could have relied on to

determine Burnett’s future lost wages. Without objection, the trial court admitted

Plaintiff’s Exhibit 13 and Plaintiff’s Exhibit 14, which comprised Burnett’s W-2

earnings statements for 2011 and 2012 (complete years of employment with Bell

Helicopter), 2013 (a year of partial employment with Bell Helicopter), and 2014

(the first full year after his termination). Those exhibits show that in 2011, Burnett

earned $111,219.89 in gross pay from Bell Helicopter; that in 2012, he earned

$104,027.53; that in 2013, although terminated in August, he earned $73,985.89;

and that in 2014, he earned only $9,611.76 from his wife’s insurance agency.

      From this evidence, the trial court could have reasonably found that

Burnett, who was forty-two years old at the time of the trial and who had




      16
         In response to Bell Helicopter’s hearsay objection to Plaintiff’s Exhibit 12,
the trial court admitted the exhibit as a summary of voluminous records. See
Tex. R. Evid. 1006 (“The proponent may use a summary, chart, or calculation to
prove the content of voluminous writings, recordings, or photographs that cannot
be conveniently examined in court.”).


                                         37
attempted but failed to obtain comparable alternative employment,17 would suffer

a substantial loss of income until a reasonable retirement age resulting from his

termination.18 See Dell, Inc., 424 S.W.3d at 114; see also Tex. Dep’t of Pub.

Safety v. Williams, No. 03-08-00466-CV, 2010 WL 797145, at *9 (Tex. App.—

Austin Feb. 19, 2010, no pet.) (mem. op.) (affirming an award of $391,485 in

front pay and explaining that a factfinder could have reasonably found that the

plaintiff would have remained with the employer for eighteen years, until the end

of his career). Furthermore, the trial court could have reasonably relied on the

W-2 forms to estimate the amount of the loss. See Dell, Inc., 424 S.W.3d at 114;

see also Reneau v. Wayne Griffin & Sons, Inc., 945 F.2d 869, 870 (5th Cir. 1991)

(holding that evidence of what the plaintiff earned before and after her

termination justified an award of front pay). And even assuming an increase from

Burnett’s 2014 earnings in future years, the trial court could have rationally

determined that given the wide disparity between what Burnett earned before

and after his termination, over the course of time until he reached retirement, he



       The trial court admitted documents that proved Burnett’s numerous
      17

attempts to find comparable employment.
      18
          We conclude that the evidence does not overcome the presumption that
if Rosenbaum had not terminated him, Burnett would have continued working at
Bell Helicopter until his retirement. See Dell, Inc., 424 S.W.3d at 114. Burnett
worked for Bell Helicopter for seventeen years, and his father and his uncle had
each worked for Bell Helicopter for over thirty years before retiring. Cf.
Cummings v. Standard Register Co., 265 F.3d 56, 66 (1st Cir. 2001) (upholding
an award of front pay until the plaintiff’s estimated retirement age when the
plaintiff was a seventeen-year employee of the defendant).


                                       38
would be damaged to an extent that approximates the court’s $565,563.87 award

(as discounted for present value).19

       In accordance with the trial court’s wide latitude in determining an

inherently speculative amount of front pay—see Dell, Inc., 424 S.W.3d at 114—

we conclude that the trial court did not abuse its discretion by awarding Burnett

$565,563.87. See Williams, 2010 WL 797145, at *10 (“[T]he evaluation of the

[evidentiary] sufficiency of a front pay award does not hinge on whether the

[factfinder’s]   calculations   involved   some     speculation,    but   whether    the

[factfinder’s] award is supported by more than a scintilla of evidence and falls

within the range of options presented at trial.”). Thus, without opining about

whether the trial court abused its discretion by admitting Plaintiff’s Exhibit 12, we

overrule the remaining part of Bell Helicopter’s fifth issue in which it complains

about the amount of front pay damages. See Tex. R. App. P. 47.1.

Statutory cap

       Finally, in its sixth issue, Bell Helicopter argues, as it did in the trial court,

that the damages for front pay and for future mental anguish were subject to a


       19
        Although we do not decide whether the trial court abused its discretion by
admitting Plaintiff’s Exhibit 12, the calculation described in that exhibit provides
an example of how the trial court could have used Burnett’s pay disparity (before
and after his termination) established by his W-2 forms to formulate its award of
front pay.

      We note that a factfinder may discount future damages to a present value
without the introduction of evidence on that subject. Missouri Pac. R. Co. v.
Kimbrell, 334 S.W.2d 283, 286–87 (Tex. 1960).


                                           39
cumulative $300,000 cap. Bell Helicopter relies on section 21.2585 of the labor

code, which states in part,

             (a) On finding that a respondent engaged in an unlawful
      intentional employment practice as alleged in a complaint, a court
      may, as provided by this section, award:

                    (1) compensatory damages; and

                    (2) punitive damages.

            ....

             (d) The sum of the amount of compensatory damages
      awarded under this section for future pecuniary losses, emotional
      pain, suffering, inconvenience, mental anguish, loss of enjoyment of
      life, and other nonpecuniary losses and the amount of punitive
      damages awarded under this section may not exceed, for each
      complainant:

                    ....

                  (4) $300,000 in the case of a respondent that has
            more than 500 employees.

Tex. Lab. Code Ann. § 21.2585(a), (d)(4) (emphasis added).

      The trial court awarded Burnett $565,563.87 for “lost wages in the future”

and $10,000 for “mental anguish damages in the future”; Bell Helicopter

contends that these awards are subject to the $300,000 cap under section

21.2585(d)(4).     Burnett argues that the $565,563.87 front pay award, an

equitable remedy, does not constitute “compensatory damages” subject to the

cap. Federal and state authority supports Burnett’s position.

      In Pollard, the Supreme Court, construing a federal statute akin to section

21.2585, held that front pay was not an element of compensatory damages



                                       40
subject to the federal statute’s cap.    532 U.S. at 848, 121 S. Ct. at 1949

(interpreting 42 U.S.C. § 1981a(b)(3) (2012) and concluding that front pay was

not subject to that subsection’s cap even though in “the abstract, front pay could

be considered compensation for ‘future pecuniary losses’”).

      Texas courts have consistently relied on Pollard to conclude that front pay

awarded under chapter 21 of the labor code does not comprise “compensatory

damages” subject to section 21.2585(d)’s cap. See San Antonio Water Sys. v.

Nicholas, 441 S.W.3d 382, 404 (Tex. App.—San Antonio 2013) (“[B]ecause front

pay is a form of equitable relief, it is not limited by the statutory cap on

compensatory damages.”), rev’d on other grounds, 461 S.W.3d 131 (Tex. 2015);

Hoffman-La Roche, Inc. v. Zeltwanger, 69 S.W.3d 634, 653 (Tex. App.—Corpus

Christi 2002), rev’d on other grounds, 144 S.W.3d 438 (Tex. 2004); see also City

of Houston v. Levingston, 221 S.W.3d 204, 234 (Tex. App.—Houston [1st Dist.]

2006, no pet.) (relying on Pollard to hold that front pay was not subject to a

statutory cap for “compensatory damages” under the Texas Whistleblower Act).

      We agree with the conclusions reached in these cases and with the

reasoning supporting the conclusions. We hold that the trial court’s award of

front pay was not subject to section 21.2585(d)’s cap and that the awards of front

pay and future mental anguish, considered cumulatively, are not capped at

$300,000. See Tex. Lab. Code Ann. § 21.2585(d)(4); Nicholas, 441 S.W.3d at

404. We overrule Bell Helicopter’s sixth issue.




                                        41
                                  Conclusion

      Having overruled all of Bell Helicopter’s six issues, we affirm the trial

court’s judgment.



                                                /s/ Charles Bleil
                                                CHARLES BLEIL
                                                JUSTICE

PANEL: WALKER and PITTMAN, JJ.; CHARLES BLEIL (Senior Justice,
Retired, Sitting by Assignment).

PITTMAN, J., filed a dissenting opinion.

DELIVERED: June 14, 2018




                                       42
