In re Polymerica, LLC

• Decision Date: 25 November 2008
• Docket Number: No. 08-08-00070-CV.,08-08-00070-CV.
• Citation: 271 S.W.3d 442
• Parties: In re POLYMERICA, LLC d/b/a Global Enterprises, Inc., Relator.
• Court: Texas Court of Appeals

271 S.W.3d 442

In re POLYMERICA, LLC d/b/a Global Enterprises, Inc., Relator.

No. 08-08-00070-CV.

Court of Appeals of Texas, El Paso.

November 25, 2008.

Henry J. Paoli, Scott, Hulse, Marshall, Feuille, Finger & Thurmond, P.C., El Paso, for Relator.

George P. Andritsos, John P. Mobbs, El Paso, for Real Party In Interest.

Before McCLURE, J., CARR, J., and GOMEZ, Judge (sitting by assignment).

OPINION ON PETITION FOR WRIT OF MANDAMUS

KENNETH R. CARR, Justice.

Relator, Polymerica, LLC d/b/a Global Enterprises, Inc. (Global), seeks a writ of mandamus ordering Respondent, the Honorable M. Sue Kurita, Judge of the County Court at Law Number Six of El Paso County, to grant Relator's Motion to Compel Arbitration. Finding an abuse of discretion, we conditionally grant the petition for writ of mandamus in part.

I. FACTUAL AND PROCEDURAL BACKGROUND

Global Enterprises, a manufacturer of plastics and automotive interior products, is based in El Paso. Real Party in Interest, Angelica Soltero, was hired by Global in 1997 to work as a human resources manager. In 2002, Global contracted with dmDickason Staff Leasing Company (Dickason) to manage Global's human resources department. In July of 2002, Dickason required its employees, including Soltero, to sign an employment agreement. Soltero did so. This agreement provided that Soltero became a joint employee of Global and Dickason on July 12, 2002. The employment agreement contained an arbitration clause which provided:

Arbitration. All disputes between you and dmDickason shall be resolved exclusively through arbitration under the Federal Arbitration Act, the American Arbitration Association's National Rules for the Resolution of Employment Disputes, and the dmDickason Dispute Resolution Plan found in this handbook, following this Employment Agreement. The decision of the arbitrator shall be final and binding and may be enforced in any court with jurisdiction. dmDickason will provide you with a copy of the then current Dispute Resolution Plan at any time, on your request reasonably made.

Dickason also distributed a Dispute Resolution Plan, which also contained an arbitration clause that Soltero was required to sign. Once again, she did so. The Dispute Resolution Plan provided, in pertinent parts:

Application. This Plan applies to all disputes between applicants for employment, Employees or former Employees of Company, whether raised during or after employment. This Plan applies to any claim against any successor, representative, agent, employee, officer, director, stockholder, administrator, executor or assignee of Employee or dmDickason (Company).

...

"Covered Dispute" means any legal or equitable claim, demand or controversy between Employee and dmDickason and/or Global Enterprises. Covered Dispute includes all claims based on any statute, regulation, common law tort, contract or alleging violation of any other legal obligation between Employee and dmDickason. Covered Dispute[s] specifically include, but are not limited to, any disputes related to: (a) this Plan; (b) hiring, discharge, promotion, demotion, transfer, reassignment, discipline, evaluation, wages, bonuses, commissions, compensation, benefits, terms and conditions of employment; (c) any employee benefits, including, for example, retirement benefits or savings plans; (d) claims of discrimination, for example, race, sex, national origin, disability, color, age, harassment or retaliation; (e) statutory claims related to employment, including employment discrimination, retaliation or harassment; (f) breach of contract claims; (g) defamation, negligence or other torts; and (h) any other matter based on related to or growing out of the employment relationship. Covered Disputes specifically include, but are not limited to disputes related to: wages, benefits, discrimination, wrongful discharge, sexual harassment, workers' compensation retaliation, Title VII of the Civil Rights Act of 1964, Age Discrimination in Employment Act, Americans with Disabilities Act, 42 U.S.C. § 1981, Fair Labor Standards Act, Family & Medical Leave Act, Employee Retirement Income Security Act, Texas Labor Code, defamation invasion of privacy, punitive damages, or intentional infliction of emotional distress.

"Employee" means any current or former employee who was an employee on or after the effective date of this Plan, together with that person's administrators, executors, heirs and assigns. Employee includes but is not limited to, regular employees, temporary employees, and assigned or leased employees, including Management, and Executives of Company.

The Dispute Resolution Plan also provided:

Arbitration Procedures. [A]ny unresolved dispute involving legally protected rights shall be resolved exclusively through binding arbitration under the Federal Arbitration Act....

In 2003, Global distributed an employee handbook, and required Soltero and all other employees to acknowledge receipt of the handbook. Soltero signed an acknowledgment that she had received the handbook. The handbook provided that:

This Employee Handbook is a revised version of any previous Employee Handbook issued by the Employer. This Handbook supercedes and revokes all prior versions of a Handbook or any memo, bulletin, policy or procedure, on any subject discussed in this Handbook that has been issued prior to the date occurring below....

...

In addition, I understand that this Handbook states Global's policies and practices in effect on the date of this publication. I understand that nothing contained in the Handbook may be construed as creating a promise of future benefits or a binding contract with Global for benefits, or for any other purpose. I also understand that these policies and procedures are continually evaluated and may be amended, modified or terminated at any time.

The following section, entitled "Dispute Resolution and Arbitration," provided:

All disputes between you and dmDickason/Global shall be resolved exclusively through arbitration under the Federal Arbitration Act. All employees are required to sign a Dispute Resolution Plan Agreement, as a condition of employment, during their new employee orientation on the first day of employment dmDickason/Global's Dispute Resolution Plan and Arbitration Agreement is intended to provide a method for solving problems that is fair, prompt and effective. Under this plan, you can bring the same kinds of claims and obtain the same kinds of relief that you could in court. Arbitration provides a way to have a legal dispute quickly heard by a trained person under less formal rules (and for a lot less cost) than would apply in a courtroom.

Your decision to accept employment with Global, or to continue your current employment after the effective date of the Dispute Resolution Plan, will mean that you have agreed to, and are bound by the Plan. All disputes between you and dmDickason, and/or you and Global shall be resolved exclusively through arbitration under the Federal Arbitration Act, the American Arbitration Association's National Rules for the Resolution of Employment Disputes, and dmDickason's dispute resolution plan that is given to all employees during their initial employment orientation with dmDickason. The decision of the arbitrator shall be final and binding and may be enforced in any court of jurisdiction. dmDickason will provide you with new or replacement copies of the then current dispute resolution plan at any time, on your request reasonably made.

In June of 2005, Global began an effort to optimize its El Paso operations and to reduce costs. As part of this initiative, the decision was made to terminate Global's contract with Dickason, and to resume full management responsibility over its Human Resources Department. On December 31, 2005, Global terminated its contract with Dickason. On January 4, 2006, Global terminated Soltero's employment.

On January 31, 2007, Soltero filed a lawsuit against Global, alleging wrongful termination, in part because of her national origin and retaliation resulting from her reports of sexual harassment on the part of the company president, Manuel Gutierrez. She did not sue Dickason. These claims were made under the auspices of the Texas Labor Code, sections 21.001 et seq. Soltero alleged damages proximately caused by Global's actions, to include back pay and benefits, front pay and benefits, compensatory damages in the past and future, reasonable and necessary attorney's fees, exemplary damages, prejudgment and post-judgment interest as allowed by law, cost of Court and other compensatory damages. An award was sought for all the above damages in an amount within the jurisdictional limits of the Court.

As part of the discovery process, Soltero's deposition was taken on October 4, 2007. In her deposition, she stated that she was retaliated against after she filed a complaint against Manny Gutierrez. She did not receive any raises after filing the complaint. She also stated that she was undercut by others regarding her duties as human resources manager. Further, she testified that she did not trust the human resources support person at Dickason, as that individual was allegedly colluding with others to fire people who filed workers' compensation claims. Soltero also stated that she understood that disputes involving the leased employees would be submitted to arbitration. Sometime later, she clarified that statement in a written correction, stating that any claims against Dickason would be submitted to arbitration.

Valerie Scott replaced Soltero as Global's human resources manager. Scott stated that she was unaware of any arbitration agreement after the termination of Global's relationship with Dickason. She agreed that from January 2006 until July 2007, when Global created a new arbitration agreement, there was no arbitration agreement in effect.

In response to the lawsuit, Global filed "Defendants' Motion to Compel Arbitration and Stay...