IN RE POLYMERICA, LLC D/B/A GLOBAL ENTERPRISES, INC. (Other)

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State: Texas

Court: Supreme Court

Docket No: 08-1064

Case Date: 10/23/2009

Judge: for writ of mandamus and direct the trial court to compel arbitration as to all

Preview:IN RE POLYMERICA, LLC D/B/A GLOBAL
ENTERPRISES, INC. (Other)
IN THE SUPREME COURT OF TEXAS
No. 08-1064
In re Polymerica, LLC d/b/a Global Enterprises, Inc.,
Relator
On Petition for Writ of Mandamus
PER CURIAM
Polymerica, L.L.C. d/b/a Global Enterprises, Inc. ( Global ) seeks a writ of mandamus ordering the trial court to grant
its motion to compel arbitration. Global, an El Paso-based manufacturer of plastics, hired Angelica Soltero in 1998. In
2002, Global contracted with dmDickason Staff Leasing Company ( Dickason ) to manage Global s human resources
department. Soltero signed a Dispute Resolution Plan, which appl[ies] to any disputes between dmDickason/Global
Enterprises and any applicant for employment, employee or former employee, including legal claims such as
discrimination, wrongful discharge or harassment. The Plan includes a four-step process for resolving disputes, the
fourth of which requires binding arbitration under the Federal Arbitration Act. The Plan notes that it is a condition of
employment and of continued employment and that employment or continued employment after the effective date of
this Plan constitutes consent by the Employee to be bound by this Plan.
Subsequently, Global distributed an employee handbook and required Soltero and all other employees to acknowledge
its receipt. The acknowledgment recites that the handbook takes precedence over, supercedes, and revokes any
previous memo, bulletin, policy or procedure issued prior to [July 6, 2003], by Global Enterprises on any subject
discussed in the Handbook. The handbook includes a section on arbitration, which provides, in pertinent part:
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.
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
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dmDickason.
On December 31, 2005, Global ended its operating agreement with Dickason and resumed full management of its
human resources department. Five days later, Global terminated Soltero.
Soltero sued Global under chapter 21 of the Texas Labor Code alleging wrongful termination based on her national
origin as well as retaliation for reporting alleged sexual harassment. The trial court denied Global s motion to compel
arbitration. Global sought mandamus relief, which the court of appeals granted in part. 271 S.W.3d 442. The court of
appeals held that Soltero s claims arising before Global and Dickason ended their relationship must be arbitrated, but
that those arising after Global and Dickason s operating agreement ended should not. Id. at 449. Soltero then nonsuited
any claim arising before January 1, 2006 and alleged that, because her termination occurred after the Global/Dickason
agreement ended, none of her claims were subject to arbitration. The trial court agreed, concluding that all of [Soltero
s] claims in this suit arise from the wrongful termination occurring after the operating agreement between Global and
Dickason ended. The trial court lifted the previously ordered stay and placed the case on the trial docket. Global asks
us to order the trial court to compel arbitration as to all of Soltero s claims and to stay the proceedings pending
arbitration.
Soltero concedes that she signed the Dispute Resolution Plan and the 2003 Handbook, but she argues that the
Handbook s statement revoking prior versions nullifies the Dispute Resolution Plan. That Handbook provision,
however, does not cover contracts like the Plan s arbitration agreement. We also note that the Handbook and the
Dispute Resolution Plan were intended to work in tandem. 227 S.W.3d at 448 ( We fail to see how the handbook
nullifies the arbitration agreements; rather, it appears to reference them. ); see also J.M. Davidson, Inc. v. Webster, 128
S.W.3d 223, 229 (Tex. 2003). If the 2003 Handbook s discussion of arbitration eliminated the Dispute Resolution Plan,
the Handbook s discussion of and multiple references to the Plan would be meaningless. See Davidson, 128 S.W.3d at
229.
Soltero also asserts that the Dispute Resolution Plan is illusory because the 2003 Handbook could be modified at any
time. See id. at 230 n.2 (noting that most courts . . . have held that, if a party retains the unilateral, unrestricted right to
terminate the arbitration agreement, it is illusory ). But the Dispute Resolution Plan has its own termination provision,
which requires notice to employees and applies prospectively only. Because Global cannot avoid its promise to
arbitrate by amending the provision or terminating it altogether, In re Halliburton Co., 80 S.W.3d 566, 570 (Tex. 2002),
the Dispute Resolution Plan is not illusory.
Next, Soltero contends that because only Dickason, not Global, was a party to the Dispute Resolution Plan, Global
may not enforce the Plan s terms. Global counters that even though it did not sign the Plan, it can enforce Dickason s
agreement with Soltero under the equitable theory of direct-benefits estoppel. We need not address direct-benefits
estoppel, however, because both Global and Soltero were parties to the Plan. The Plan notes that it will apply to any
disputes between dmDickason/Global Enterprises and any applicant for employment, employee or former employee. It
also defines covered dispute as including any claim, demand, or controversy between Employee and dmDickason
and/or Global Enterprises. Although the Plan is signed only by Soltero and Dickason, we have never held that the
employer must sign the arbitration agreement before it may insist on arbitrating a dispute with its employee. [N]either
the FAA nor Texas law requires that arbitration clauses be signed, so long as they are written and agreed to by the
parties. In re AdvancePCS Health, L.P., 172 S.W.3d 603, 606 n.5 (Tex. 2005) (noting, however, that Texas Arbitration
Act requires signatures for contracts of less than $50,000 or personal injury claims); see also In re Macy s Tex., Inc.,
291 S.W.3d 418, 418 (Tex. 2009) (per curiam) (observing that [t]he FAA contains no requirements for the form or
specificity of arbitration agreements except that they be in writing; it does not even require that they be signed );
Halliburton, 80 S.W.3d at 569 (holding arbitration clause was accepted by continued employment). And while the Plan
provides that it covers disputes involving former employees of the company, defined as dmDickason Staff Leasing
Company, Inc. together with its subsidiaries, parent companies, affiliates, officers, directors, employees, agents,
representatives, shareholders and assigns, it also states that it applies to any disputes between dmDickason/Global
Enterprises and any . . . former employee. See In re D. Wilson Construction Co., 196 S.W.3d 774, 782 (Tex. 2006)
(observing that we resolve doubts as to the scope of the agreements in favor of coverage ); In re FirstMerit Bank, 52
S.W.3d 749, 753 (noting that courts must resolve any doubts about an arbitration agreement s scope in favor of
arbitration ).
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The court of appeals held that Global could not enforce the arbitration agreements for those claims arising from the
alleged wrongful termination occurring after the operating agreement between Global and Dickason ended. 271
S.W.3d at 449. The court relied on In re Neutral Posture, Inc., 135 S.W.3d 725, 730 (Tex. App. Houston [1st Dist.]
2003, no pet.), to explain why claims post-dating the operating agreement must be tried rather than arbitrated, but we
find Neutral Posture to be distinguishable. The arbitration agreement there included a condition stating that the parties
must resolve disputes via arbitration only during a set five-year period, and the claim at issue was filed after the
expiration of that period. Id. There is no such time limitation in the Dispute Resolution Plan, nor is there a condition
that the Global and Dickason relationship must be in existence for either to enforce the Plan. Soltero s agreement to
arbitrate survives the dissolution of that relationship, and the Dispute Resolution Plan explicitly covers former
employees like Soltero.
The court of appeals also noted that Global s former human resources manager, Valerie Scott, was unaware of any
arbitration agreement after the termination of Global s relationship with Dickason, and [s]he agreed that from January
2006 until July 2007, when Global created a new arbitration agreement, there was no arbitration agreement in effect.
271 S.W.3d at 446-47. But Scott s testimony is ambiguous on this point. She testified that she never even thought
about [whether the 2002 agreement] was still in effect after the relationship between Global and Dickason ended.
When asked whether Global employees were covered by an arbitration agreement in 2006, she answered that [t]here
was not an arbitration agreement that we that was created by Global Enterprises and that she was unaware of any other
arbitration agreement that might have applied to Global s employees. Even if Scott had testified that no arbitration
agreement was in effect, her statements could not alter the effect of the unambiguous agreement. See In re Dillard s
Dep t Stores, Inc., 186 S.W.3d 514, 515 (Tex. 2006) (noting that [t]he objective intent as expressed in the agreement
controls the construction of an unambiguous contract, not a party s after-the-fact conduct ); Davidson, 128 S.W.3d at
229 ( In construing this agreement, we first determine whether it is possible to enforce the contract as written, without
resort to parol evidence. ).
Soltero s promise to arbitrate includes her claims against Global. Mandamus relief is appropriate when a party is
forced to trial despite an enforceable agreement to arbitrate. In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 462 (Tex.
2008). Accordingly, without hearing oral argument, TEX. R. APP. P. 52.8(c), we conditionally grant Global s petition
for writ of mandamus and direct the trial court to compel arbitration as to all of Soltero s claims and stay the
proceedings pending arbitration. We are confident the trial court will comply, and our writ will issue only if it does not.
Opinion Delivered: October 23, 2009
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