An employer can win a claim if they can show they would have fired the employee even if the employee had been discriminated against. This is know as the “Same Decision Defense”
In the case of River Oaks L-M. Inc. v. Vinton-Duarte, ___ S.W.3d ___, 2015 WL 3618950 (Tex. App.—Houston [14th Dist.] 2015) the employer claimed that even if the employee was fired after she reported sexual harassment, they would have fired her anyway because she stole merchandise from the company. The jury after hearing the evidence concluded that the employee’s termination was motivated by the employer’s retaliatory intent, and that the employer had failed to prove it would have terminated the employee despite her reporting the sexual harassment. In this case HR did not take her claim of sexual harassment seriously but instead, it began a thorough investigation of the employee for questionable transactions she had handled. At trial, the evidence showed that the employer had not discharged other employees who had taken merchandise. The Court therefore held that the jury reasonably believed that the retaliation and not the misconduct, was the reason for her termination.
As a side note there are caps on the amount of damages in retaliation cases such as this. The Court held that the caps are on a per employee basis and not on a per claim basis. This means that the one cap (for large employers it is $300,000.00) applies on a per employee basis even if the employer is guilty of more than one claim (for example sexual harassment and retaliation).
As an El Paso, Texas employment lawyer I often see employees who are fired after they report discrimination. Some employers in their investigation try and dig up as much dirt on the employee as possible to justify their termination. However as this case shows; juries are not apt to buy such claims if their is good evidence of discrimination and retaliation. Even if the employee lost their unemployment claim that does not mean that the employee cannot still sue for discrimination and retaliation. It is important that employees subject to work place retaliation and wrongful discharge in El Paso, Texas and Las Cruces, New Mexico seek out a competent employment lawyer to guide them through the process and prosecute their claim for damages.