Chapter § 6-49 § 451.002. Remedies; Burden of Proof

• Jurisdiction: United States

6-49 § 451.002. Remedies; Burden of Proof

(a) A person who violates Section 451.001 is liable for reasonable damages incurred by the employee as a result of the violation.

(b) An employee discharged in violation of Section 451.001 is entitled to reinstatement in the former position of employment.

(c) The burden of proof in a proceeding under this section is on the employee.

6-49:1 Commentary

6-49:1.1 Section 451 Claims and Punitive Damages

The issue of punitive damages arises. The Texas Supreme Court has addressed this issue in the context of Section 451 claims, and its analysis is applicable to other employment statutes discussed in this book. Here are the principles to derive from Southwestern Bell Tel. Co. v. Garza, 164 S.W.3d 607 (Tex. 2004).

• A jury finding of discrimination is not the equivalent of a finding of ill-will or malice.
• The standard of proof at trial is one of clear and convincing evidence; accordingly, the standard of appellate review is likewise elevated.
• This standard of appellate review means that an appeals court "should disregard all evidence that a reasonable fact-finder could have disbelieved or found to have been incredible . . . disregarding undisputed facts that do not support the finding could skew the analysis of whether there is clear and convincing evidence."
• In practice, this means that a court should engage in a review of all the evidence, including the undisputed evidence that shows the employer did not act with malice or ill will. By way of example, Garza was disciplined for alleged safety violations, but there was evidence that the employer decided upon this reason a week after the accident, triggering the workers' compensation claim, that the employer's policies did not require the severe punishment he received, and that the other employee in the accident was equally culpable but was not disciplined as severely. All supported the imposition of punitive damages.

But the court looked at undisputed facts mitigating against a finding of malice, including a long history of written warnings issued to Garza for safety violations and that the employer gave Garza an opportunity to look for other positions in the company instead of immediately terminating him. Because of this undisputed—not merely unchallenged—evidence, punitive damages were inappropriate.

A question also arises as to whether an employer should seek bifurcation of liability and punitive damages.

• Transportation Ins. Co. v. Moriel, 879 S.W.2d 10 (Tex.

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