PJC Business

E MPLOYMENT

PJC 107.7

PJC 107.7

Question on After-Acquired Evidence of Employee Misconduct

QUESTION ______ Did Paul Payne engage in misconduct for which Don Davis would have legitimately discharged him solely on that basis? Answer “Yes” or “No.” Answer: _______________ COMMENT When to use. PJC 107.7 should be used if the employer pleads that evidence of the employee’s misconduct, acquired after the employee’s discharge, should limit the employee’s recovery, because the employer either would not have hired or would have terminated the employee on legitimate and lawful grounds had the evidence been dis covered before discharge. The Committee believes that PJC 107.7 is appropriate to submit if after-acquired evidence is pleaded by the defendant in any wrongful dis charge claim. See McKennon v. Nashville Banner Publishing Co. , 513 U.S. 352 (1995) (age discrimination); Trico Technologies Corp. v. Montiel , 949 S.W.2d 308 (Tex. 1997) (per curiam) (workers’ compensation retaliation); Norwood v. Litwin Engineers & Constructors, Inc. , 962 S.W.2d 220 (Tex. App.—Houston [1st Dist.] 1998, pet. denied) (disability discrimination). Broad-form submission. PJC 107.7 is a broad-form question designed to be accompanied by one or more appropriate instructions. Tex. R. Civ. P. 277 requires that “the court shall, whenever feasible, submit the cause upon broad-form questions.” Tex. R. Civ. P. 277; see Thota v. Young , 366 S.W.3d 678, 689 (Tex. 2012) (rule 277’s use of “whenever feasible” mandates broad-form submission in any or every instance in which it is capable of being accomplished). For further discussion, see PJC116.2 regarding broad-form issues and the Casteel doctrine.

315