Billy Joe Watts v. BHP Billiton Petroleum (Americas) Inc.

Affirmed and Opinion filed September 19, 2006 Affirmed and Opinion filed September 19, 2006. In The Fourteenth Court of Appeals ____________ NO. 14-05-00480-CV ____________ BILLY JOE WATTS, Appellant V. BHP BILLITON PETROLEUM (AMERICAS), INC., Appellee On Appeal from the 61st District Court Harris County, Texas Trial Court Cause No. 02-62918 M E M O R A N D U M   O P I N I O N Appellant, Billy Joe Watts, appeals from a take-nothing judgment. Watts sued appellee, BHP Billiton Petroleum (Americas), Inc. (BHP), alleging age discrimination when appellee failed to hire Watts as a site facilities construction manager. The jury found that age was a motivating factor in appellee=s failure to hire; it also found that appellee acted with malice. In spite of these findings, the jury found that Watts suffered no actual damages, but then awarded punitive damages in the amount of $750,000.00. Because the jury did not award any actual damages, however, the trial court refused to award Watts the punitive damages. In three issues, Watts attacks the take-nothing judgment. In his first and second issues, Watts contends the evidence was both legally and factually insufficient to support the jury=s finding of no damages. In his third issue, Watts argues the jury=s findings of age discrimination, malice, and punitive damages are in irreconcilable conflict with its finding of no actual damages. We affirm. Factual and Procedural Background In 2002, Billy Joe Watts met with a friend of his, Mike Pauche. The two worked on projects whose goals were to develop, fabricate, and deploy oil platforms in various bodies of water around the world. Having worked together on a project in the past, the two began discussing their current assignments. Pauche informed Watts that he was currently working on a project off the coast of Trinidad and Tobago called the Angostura Project, and asked if Watts would be interested in working on that project as well. Watts expressed interest, and Pauche informed him that Peter Johnson was the person to contact regarding a possible position as the site facilities construction managerCthe role Watts had performed on a previous project with Pauche. After several attempts to contact Johnson, Watts finally talked to him on the telephone on March 25, 2002. Johnson inquired as to Watts=s age, and was not encouraged to learn that Watts was 69 years old at the time. Johnson told Watts that he could not entrust such an important job as site facilities construction manager to someone of Watts=s age. Johnson then reiterated the point in an email to Watts later that day. Although Watts found another job with Mustang Engineering on April 12, 2002, he filed a complaint with the Equal Employment Opportunity Commission (EEOC). After the EEOC did not determine BHP was liable, Watts commenced this lawsuit. At trial, BHP introduced much evidence and testimony regarding the three phases for a platform construction project: (1) engineering and conceptual design; (2) fabrication; and (3) installation. In the first phaseConce oil has been foundCengineers design the platform necessary to extract the oil. The focus of this phase is to determine whether it would be profitable to build and deploy the platform considering issues such as the cost of the platform versus the amount of oil to be harvested. Not until the board of directors has seen all of the information from the first phase does it approve funding to actually fabricate and then install the platform. BHP also introduced evidence that a site facilities construction managerCas the name would implyCoversees the fabrication of the platform. Thus, until the board of directors releases funds for construction, there is no site facilities construction manager position to fill. According to testimony, it was not until 2003 that the board had approved the plans for the Angostura Project, and thus the position Watts was seeking became available. At that time, Johnson was no longer working on the Angostura Project, and the site facilities construction manager position was filled by Reginald Picou on April 14, 2003. Picou had worked with one of the engineers on the project, Chuck Willis, in the past and so was specially sought out to fill the position.[1] In May 2003, Watts left the position he had obtained the previous year with Mustang Engineering. Watts claimed damages for two periods of time. The first was May 25, 2002Cthe date of Johnson=s statement and emailCuntil April 12, 2002Cthe date when Mustang Engineering hired Watts. The second time period was April 14, 2003Cthe date Picou was hiredCuntil May 2003Cthe date when Watts left Mustang Engineering. According to Watts, at minimum he was due damages for the full amount Picou received ($72 an hour plus per diem) for the first period because he had not yet secured alternate employment; he also claims he is due the difference between his hourly rate at Mustang Engineering of $45 an hour and Picou=s rate and per diem at BHP as damages for the second period. Watts=s expert calculated damages in the amount of approximately $427,000; however, those damages included all phases of the project and time periods other than the two listed above. BHP contended below that there could be no actual damages for the first time period because no position existed for Watts to fill; there also could be no damages for the second time period because Watts had mitigated his damages fully. According to evidence, Picou consistently commanded a higher rate than Watts had ever earned. Additionally, Watts received benefits through his employment at Mustang Engineering, whereas Picou did not at BHP. Thus, there were no damages for the second time period. The jury evidently agreed, and awarded no actual damages. Arguing that the verdict cannot stand, Watts raises three issues. In two, he contends the evidence was legally and factually insufficient to support the jury=s finding. In the third, he argues the jury=s answers are in irreconcilable conflict because the jury found age discrimination, malice, and awarded punitive damages. We affirm. Analysis I. Sufficiency of the Evidence Watts raises two issues regarding the sufficiency of the evidence. In his first, he argues the jury=s finding of no actual damages was Aso against the great weight and preponderance of the evidence as to be manifestly unjust and inadequate as a matter of law.@ In his second, Watts contends Athere is no evidence supporting the jury=s finding of zero damages and Watts proved his damages as a matter of law.@ Stated differently, Watts contends in his first issue that the evidence is factually insufficient, and in his second that it is legally insufficient. We will address Watts=s legal sufficiency issue first, then turn to his factual sufficiency argument. A. Legal Sufficiency When conducting a legal sufficiencyCor no evidenceCreview, we view the evidence in the light favorable to the verdict, crediting favorable evidence if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex. 2005). A party attacking an adverse finding on an issue on which she had the burden of proof must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of the issue. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001) (per curiam). We must examine first the record for evidence supporting the finding while ignoring all contrary evidence. Id. If there is no evidence to support the finding, then we will examine the entire record to determine if the contrary proposition is established as a matter of law. Id. We will not reverse unless the contrary proposition is conclusively established. Id. Watts cannot meet this burden. BHP introduced ample evidence supporting the jury=s finding. According to the evidence, no job existed during the first period of timeCthe time of unemployment.[2] Without an available job, there could be no salary to pay anyone. Therefore, even had BHP determined it would hire Watts, the work and pay would not have begun until 2003. Because this evidence supports the jury=s finding, we will not turn our attention to contrary evidence. See id. However, we must now determine if the evidence was legally sufficient to support the jury=s finding of no damages in light of the pay difference between Picou and Watts during the second period. Several witnesses testified concerning Picou=s rate per hour and per diem. Unquestionably, Picou=s hourly rate was greater than Watts=s. However, two significant facts militate against Watts=s position and support the jury=s finding. First, Picou consistently received compensation at a higher rate than Watts and, therefore, the evidence supports a finding that Watts would not have received the same rate as Picou. Second, Picou received no benefits while working for BHP, whereas Watts received benefits at Mustang Engineering. No evidence was introduced regarding the value of the benefits to prove whether or not Watts truly made less than Picou; thus, the jury could have determined that there was no actual difference in compensation. Under either formulation or interpretation of the evidence, the jury had sufficient evidence to support its finding of no damages, whether considering the first or second periods of time, or both. We overrule this issue. B. Factual Sufficiency Watts also raises a challenge to the factual sufficiency of the evidence supporting the jury=s award of no actual damages. When a party had the burden of proof at trial on an issue, and raises a factual sufficiency challenge to an adverse finding on that issue, we must consider and weigh all of the evidence. Id. at 242. We will set the verdict aside only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Id. Of course, in conducting our review, we may not merely substitute our judgment for that of the jury. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). The jury is the sole judge of witness credibility and the weight to be given to a witness=s testimony. As above, Watts cannot overcome this burden and we will not set aside the jury=s verdict. We have discussed already the evidence supporting the jury=s verdict. We will now discuss the contrary evidence and then determine whether the evidence as a whole was factually insufficient to support the verdict. As an initial matter, we hold that the evidence supporting the verdict was not so weak to make the verdict clearly wrong and unjust. The evidence concerning the time line of the project and Picou=s typical wages was not seriously disputed, and it was corroborated throughout the trial. However, Watts introduced some evidence to support his contentions, which we now examine. Watts relies chiefly on the testimony of his expertCan economist. The expert=s testimony placed total damages at approximately $427,000. However, those damages included all three phases of the project. As the testimony indicated, Watts sought a position that would exist in the second phase of the project, with the potential to carry forward into the third phase. Yet the expert included categories in his report to discuss damages for each of the phases. BHP did not produce any controverting expert testimony regarding damages. Thus, according to Watts, the jury had no other evidence to consider on the issue of damages and could not have found zero damages. We disagree. The jury considered the evidence and reached two conclusions: (1) there was no job during the first period for which Watts sought damages; and (2) Watts fully mitigated his damages for the second period. No expert testimony was necessary to support these findings. The only evidence that a job actually existed during the first period was the implication that Mike Pauche would not have directed Watts to seek a position if it did not exist. Yet Watts never produced any evidenceCother than suppositionCthat there was a job. Rather, the evidence consistently indicated that the position did not become available until 2003Ca year after Watts was rejected. Therefore, the jury could conclude without the aid of expert testimony that without a job, there could be no salary, and thus no basis to award damages for the first period of time. Watts=s expert also concluded that BHP valued the site facilities construction manager position at the rate it paid Picou. Therefore, Watts was due the difference between his pay on the job he took at Mustang Engineering to mitigate his damages, and Picou=s rate at BHP. This conclusion was based on the basic economic theory that the market will pay what it can bear for any good or service. However, what Watts did not prove was that the market will always choose to pay the highest price it will bear. In other words, there are timesCas BHP testimony indicated was the situation here with PicouCwhen a buyer will choose to pay a premium for a particular good or service due to quality. Additionally, Watts=s expert did not testify that a buyer will automatically offer to pay the highest price it can bear if it can purchase the same good or service for less. The testimony was consistent in that Picou regularly commanded a higher income than Watts on any particular project for very similar work. According to testimony, the reason was Picou=s connection with certain workers on projects, his certifications, reputation, and his ability to negotiate for high pay. BHP=s witnesses also testified that given a range of possible pay for someone like Watts or Picou, there is a sliding scale; Picou consistently earned at the top of the scale, and Watts did not. BHP=s choice to pay a premium for a particular professional does not mean that Watts is entitled to the difference in pay. The evidence was sufficient to support a finding that Watts would not have received Picou=s rate, even if hired. However, there is another foundation for the jury=s finding. BHP hired Picou as an independent contractor. He received no benefits. Conversely, Watts received benefits at Mustang Engineering. There was no evidence regarding the value of those benefits. BHP questioned Watts=s expert regarding the value of the benefits. The expert had not taken the benefits into account and, as a result, could not determine the extent of mitigation. The jury could conclude from this evidence that Watts had mitigated his damages fully by receiving a form of compensation Picou did not receive. In summary, the evidence was factually sufficient to support the jury=s finding of no actual damages. As to the first period, the evidence was sufficient to prove that no job existed and thus there could be no damages. Concerning the second period, the jury had sufficient evidence to determine that Watts had mitigated his damages fully, either because he could not command Picou=s rate, or because his benefits leveled out any disparity. The evidence on each of these points was not so weak and the finding was not so against the great weight and preponderance of the evidence that the verdict was clearly wrong and unjust. We overrule this issue. II. No Conflict in the Jury=s Answers Taking a different tack, Watts argues that the jury=s answers finding age discrimination, malice, and awarding punitive damages are in irreconcilable conflict with its finding of no actual damages for the first period. Simply put, Watts contends that if a jury finds age discrimination, there must have been a job in existence at the time. We disagree. The case law does not so readily support Watts=s position as he supposes; we find the jury=s answers are reconcilable. We note first that a finding favorable to a party on liability does not render a conflict with a finding of zero damages. See Cooper v. Lyon Fin. Services, Inc., 65 S.W.3d 197, 204 n.5 (Tex. App.CHouston [14th Dist.] 2001, no pet.); Am. Recreational Markets Gen. Agency, Inc. v. Hawkins, 846 S.W.2d 476, 478 (Tex. App.CHouston [14th Dist.] 1993, no writ). However, we must also turn our attention to Watts=s argument that the jury=s findings established as a matter of law that a job existed at the time of rejection, and so damages necessarily were due for the first period. Watts relies on certain cases stating that a prima facie case of discrimination may be proven by demonstrating (1) that complainant belongs to the protected class, (2) she applied and was qualified for a job for which the employer was seeking applicants, (3) despite her qualifications, she was rejected, and (4) after her rejection, the position remained open and the employer continued to seek applicants from persons of complainant=s qualifications. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Another formulation of a prima facie case is (1) complainant is a member of the protected class, (2) she applied and was qualified for a position for which the employer was accepting applications, (3) despite her qualifications, she was rejected, and (4) the position remained open or was filled by another person outside of her protected class. Equal Employment Opportunity Commission v. Joe=s Stone Crabs, Inc., 296 F.3d 1265, 1273 (11th Cir. 2002). Although both of these formulationsCwhich are nearly identicalCindicate that the employer must have been accepting applications, neither carries a presumption of when work would begin. Stated differently, it is logical that an employer would seek applicants in advance of a hiring need. Thus, as was argued in this case, an applicant could be rejected for a job that would not begin for some period of time, and still have no damages because she had begun another job within that period of time; she would have mitigated her damages even though a hiring decision was made on an improper basis such as age. Additionally, it is axiomatic that if there is no job, there can be no damages. See, e.g., Swint v. Pullman-Standard, 539 F.2d 77, 103 (5th Cir. 1976) (stating that a defendant may avoid liability by either showing there were no vacancies to fill, or that the discriminatee seeking back pay could not have been assigned to that position because of the unavailability of vacancies she was able to fill); Marshall v. Airpax Electronics, Inc., 595 F.2d 1043, 1045 (5th Cir. 1979) (holding that a finding of no vacancies would support a finding that there was no entitlement to back pay). Here, the jury could have determined that BHP informed Watts that it would never hire him due to his age while at the same time determining that there was no current vacancy for him to fill. Stated differently, the jury could have found that BHP preemptively refused to hire Watts because of his age, even though the position would not become available for a year. By the time the job became available, Watts had mitigated his damages, and so there was no relief to grant for actual damages. The jury=s answers are not irreconcilable, rather they are consistent with the evidence. We overrule Watts=s final issue. Conclusion Having overruled each of appellant=s three issues, we affirm the judgment of the trial court. /s/ Wanda McKee Fowler Justice Judgment rendered and Memorandum Opinion filed September 19, 2006. Panel consists of Justices Hudson, Fowler, and Seymore. [1] Although not addressed in either party=s brief, we note that Picou also falls into the class of persons age discrimination laws protect. [2] Watts argues that the jury=s findings in the other questions necessarily mean that there was a job available in March 2002, when Johnson rejected Watts. For reasons we explain below concerning Watts=s third issue, we disagree.