                                Fourth Court of Appeals
                                        San Antonio, Texas
                                   MEMORANDUM OPINION
                                            No. 04-14-00078-CV

                 RIVER CITY CARE CENTER, INC. d/b/a River City Care Center,
                                     Appellant

                                                        v.

                                               Betty TAYLOR,
                                                   Appellee

                       From the 45th Judicial District Court, Bexar County, Texas
                                    Trial Court No. 2011-CI-15814
                         Honorable Barbara Hanson Nellermoe, Judge Presiding

Opinion by:       Luz Elena D. Chapa, Justice

Sitting:          Rebeca C. Martinez, Justice
                  Patricia O. Alvarez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: June 17, 2015

REVERSED AND RENDERED

           River City Care Center, Inc. appeals the trial court’s judgment, arguing the trial court erred

by awarding Betty Taylor front pay, back pay, and attorney’s fees. 1 We reverse and render

judgment that Taylor take nothing.




1
  Although River City argues the trial court made errors regarding its mitigation defense and awarding pre-judgment
interest, we need not address these issues based on our disposition. See TEX. R. APP. P. 47.1.
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                                           BACKGROUND

       Taylor filed suit against River City, claiming the termination of her employment with River

City was motivated by her age, sexual orientation, and gender, and claiming intentional infliction

of emotional distress. River City denied her allegations and alleged River City would have

terminated her employment regardless of her age.

       The case proceeded to trial solely on Taylor’s age-discrimination claim. The jury first

found River City’s termination of Taylor’s employment was motivated by Taylor’s age. The jury

then found River City would have terminated her employment regardless of her age. The jury was

instructed that if it made those two findings, it should skip and not answer the question regarding

Taylor’s attorney’s fees. The jury followed the instructions and did not answer the question about

Taylor’s attorney’s fees because it found that, although age was a motivating factor in River City’s

termination of Taylor’s employment, River City would have terminated her employment

regardless of her age.

       Following trial, Taylor moved for entry of judgment and requested the trial court award

her equitable relief and attorney’s fees. River City objected to the motion, arguing Taylor did not

plead for equitable relief, equitable relief was statutorily barred, she did not obtain a jury finding

on her attorney’s fees, Taylor was not a “prevailing party,” and she had not segregated her

attorney’s fees. The trial court heard the motions, and then rendered a final judgment awarding

Taylor front pay, back pay, and attorney’s fees. River City now appeals.

                                      STANDARD OF REVIEW

       We review a trial court’s award of front pay, back pay, and attorney’s fees for an abuse of

discretion. El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 761 (Tex. 2012) (attorney’s fees); Tex.

Youth Comm’n v. Koustoubardis, 378 S.W.3d 497, 502 (Tex. App.—Dallas 2012, no pet.) (front

pay); Stanley Stores, Inc. v. Chavana, 909 S.W.2d 554, 563 (Tex. App.—Corpus Christi 1995, pet.
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denied) (back pay). A trial court abuses its discretion when it acts arbitrarily and unreasonably,

without reference to guiding rules or principles, or misapplies the law to the established facts of

the case. Koustoubardis, 378 S.W.3d at 502. We review questions of law, including issues of

statutory construction, de novo. Tucker v. Thomas, 419 S.W.3d 292, 295 (Tex. 2013).

                                    FRONT PAY & BACK PAY

       River City argues the Labor Code prohibits an award of front pay and back pay under the

established facts of this case. Section 21.125 of the Texas Labor Code provides:

       (a) Except as otherwise provided by this chapter, an unlawful employment practice
       is established when the complainant demonstrates that . . . age . . . was a motivating
       factor for an employment practice, . . . even if other factors also motivated the
       practice . . . .

       (b) In a complaint in which a complainant proves a violation under Subsection (a)
       and a respondent demonstrates that the respondent would have taken the same
       action in the absence of the impermissible motivating factor, the court may grant
       declaratory relief, injunctive relief except as otherwise provided by this subsection,
       and attorney’s fees and costs demonstrated to be directly attributable only to the
       pursuit of a complaint under Subsection (a), but may not award damages or issue
       an order requiring an admission, reinstatement, hiring, promotion, or back pay.

TEX. LABOR CODE ANN. § 21.125 (West 2015). The jury found River City would have terminated

Taylor’s employment regardless of her age.

       Taylor responds section 21.258 of the Labor Code permits a trial court to award equitable

relief in the form of back pay. Section 21.258 provides:

       (a) On finding that a respondent engaged in an unlawful employment practice as
       alleged in a complaint, a court may:

               (1) prohibit by injunction the respondent from engaging in an unlawful
               employment practice; and
               (2) order additional equitable relief as may be appropriate.

       (b) Additional equitable relief may include:
              (1) hiring or reinstating with or without back pay;
              ....



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TEX. LABOR CODE ANN. § 21.258 (West 2015). This section applies when the factfinder finds an

employer engaged in an unlawful employment practice. Id. But section 21.125(b) prohibits a back

pay award in cases, such as this one, when the factfinder also finds the employer “would have

taken the same action in the absence of the impermissible motivating factor.” Id. § 21.125(b).

Because Taylor’s construction unnecessarily reads a conflict into the statute, we decline to adopt

it. See TEX. GOV’T CODE ANN. § 311.026 (West 2013) (requiring courts to reconcile conflicts to

give effect to apparently conflicting statutory provisions). Because section 21.215(b) prohibits the

award of back pay under the established facts of this case, the trial court abused its discretion by

awarding Taylor back pay. See Koustoubardis, 378 S.W.3d at 502.

       Section 21.125(b) also prohibits the trial court from ordering several types of equitable

relief, including reinstatement. Id. Front pay is an equitable alternative to reinstatement when a

trial court determines reinstatement is not feasible. Cox & Smith Inc. v. Cook, 974 S.W.2d 217,

227 (Tex. App.—San Antonio 1998, pet. denied). Because section 21.125(b) expressly prohibits

reinstatement, and because front pay is a remedy that may be awarded as an alternative to

reinstatement when it is not feasible, we construe section 21.125(b) as prohibiting an award of

front pay as an equitable alternative to reinstatement under the established facts of this case. See

Tucker, 419 S.W.3d at 295 (“Our primary objective when construing statutes is to give effect to

the Legislature’s intent.”). Because § 21.125(b) prohibits an award of front pay under the

established facts of this case, the trial court abused its discretion by awarding Taylor front pay. See

Koustoubardis, 378 S.W.3d at 502.

                                         ATTORNEY’S FEES

       River City argues Taylor waived her right to recover attorney’s fees by failing to obtain a jury

finding. Chapter 21 of the Labor Code contains two provisions for attorney’s fees in an age

discrimination case. Section 21.259(a) provides, “In a proceeding under this chapter, a court may allow

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the prevailing party, other than the commission, a reasonable attorney’s fee as part of the costs.” TEX.

LABOR CODE ANN. § 21.259(a) (West 2015). Section 21.125(b) provides that when “a respondent

demonstrates that the respondent would have taken the same action in the absence of the

impermissible motivating factor, the court may grant . . . attorney’s fees and costs demonstrated to

be directly attributable only to the pursuit of a complaint under Subsection (a).” Id. § 21.125(b).

         When a party fails to obtain a jury finding on attorney’s fees, and the amount of reasonable

attorney’s fees is disputed, the trial court’s subsequent award of attorney’s fees is an abuse of

discretion. Univ. of Tex. v. Ables, 914 S.W.2d 712, 717 (Tex. App.—Austin 1996, no writ) (citing TEX.

R. CIV. P. 279). Here, the amount of attorney’s fees directly attributable only to the pursuit of a

complaint that age was a motivating factor in Taylor’s termination was disputed. See TEX. LABOR CODE

ANN. § 21.125(b). Taylor did not obtain a jury finding on her attorney’s fees, and River City disputed

the amount of attorney’s fees to which Taylor would be entitled. Therefore, the trial court’s

subsequent award of attorney’s fees was an abuse of discretion. See id. 2

                                                   CONCLUSION

         We reverse the trial court’s judgment and render judgment that Taylor take nothing.

                                                           Luz Elena D. Chapa, Justice




2
  River City argues attorney’s fees are not available under § 21.125(b) because Taylor was not a prevailing party. See
Burgmann Seals America, Inc. v. Cadenhead, 135 S.W.3d 854, 858-861 (Tex. App.—Houston [1st Dist.] 2004, pet.
denied) (holding that plaintiff who does not recover any meaningful relief is not entitled to attorney’s fee award under
sections 21.125 and 21.259). We need not decide whether attorney’s fees are available under § 21.125(b) under the
facts of this case; addressing that issue is not necessary to the disposition of this appeal. See TEX. R. APP. P. 47.1.

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