PARKER PERRET; PATRICIA PENN PIERRE AS EXECUTRIX OF THE ESTATE OF MELVIN PIERRE, SR., DECEASED, Plaintiffs - Appellants Cross-Appellees
NATIONWIDE MUTUAL INSURANCE COMPANY, Defendant - Appellee Cross-Appellant
Appeals from the United States District Court for the Eastern District of Texas.
For PARKER PERRET, PATRICIA PENN PIERRE, Executrix of the Estate of Melvin Pierre, Sr., Deceased, Plaintiffs - Appellants Cross-Appellees: Brendan K. McBride, McBride Law Firm, San Antonio, TX; Matthew Raymond Pearson, Esq., Gravely & Pearson, L.L.P., San Antonio, TX.
For NATIONWIDE MUTUAL INSURANCE COMPANY, Defendant - Appellee Cross-Appellant: Lori Michelle Carr, Attorney, Terah J. Moxley, Estes Okon Thorne & Carr, P.L.L.C., Dallas, TX.
Before KING, GRAVES, and HIGGINSON, Circuit Judges.
JAMES E. GRAVES, JR., Circuit Judge:
A jury found that Nationwide Mutual Insurance Company (" Nationwide" ) constructively discharged Parker Perret because of his age, and constructively discharged Melvin Pierre, Sr. because of his age and race, in violation of the Texas Commission on Human Rights Act (" TCHRA" ). Because we find insufficient evidence to support the verdict of constructive discharge, we reverse.
I. Factual and Procedural Background
Perret and Pierre (collectively " Plaintiffs" ) were insurance sales managers employed at Nationwide, and worked for the same supervisor, Brian McCulloch. They were the two oldest managers in their region, and Pierre was the only African-American manager in the region. At trial, Plaintiffs produced evidence showing that although they were at or near the top of their region in sales, in November 2009 they were placed on coaching plans. Plaintiffs contended that the coaching plans were based on minor or trivial performance issues, included vague and subjective criteria that were impossible to meet, and did not comply with company policies regarding such plans. Perret and Pierre became suspicious that the purpose of the coaching plans was to lead to termination. Nationwide contended that the plans were based on performance deficiencies.
On April 22, 2010, McCulloch notified Perret that due to his failure to improve in accordance with the coaching plan, he was being placed on a Performance Improvement Plan (" PIP" ), which Perret testified was the final stage in Nationwide's process for terminating employees. Perret qualified for a sales bonus for meeting his first quarter sales goals, but Nationwide withheld Perret's bonus because he was on a PIP. Perret resigned on May 24, 2010. Similarly, Pierre was placed on a PIP around April 2010. Almost immediately after being placed on the PIP, Pierre took
medical leave. After being on leave for over two months, Pierre resigned on July 3, 2010. Because Pierre's resignation would adversely impact the disability payments Pierre was receiving, McCulloch testified that he asked Pierre to rescind his resignation, but Pierre declined to do so.
Plaintiffs separately filed lawsuits against Nationwide under the TCHRA. Nationwide removed the suits to federal court. The district court joined the two cases for trial. Perret contended at trial that his coaching plan and PIP were pretexts for age discrimination and that Nationwide singled him out for termination because he was one of the two oldest managers in the region. Pierre contended that his coaching plan and PIP were pretexts for age and race discrimination and that Nationwide singled him out for termination because he was one of the two oldest managers and the only African-American manager in the region, although he conceded at trial that he was treated identically to Perret, who is white. The jury found that Nationwide constructively discharged Perret because of his age, and constructively discharged Pierre because of his age and race. However, the jury also found that Nationwide proved it would have placed Perret and Pierre on coaching plans and PIPs even if it had not considered age or race. This mixed motives verdict precluded Plaintiffs from receiving monetary damages under Texas law. See Texas Labor Code § 21.125(b). The district court denied Nationwide's motion for judgment as a matter of law, awarded costs to Plaintiffs, and denied Plaintiffs' motion for attorneys' fees.
Perret and Pierre appeal, and challenge the district court's limitation of the testimony of a previous Nationwide employee and the district court's denial of attorneys' fees. Nationwide cross-appeals, and challenges the district ...