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Valdes v. Whataburger Restaurants, LLC

Court of Appeals of Texas, Fourteenth District

June 15, 2017

OMAR VALDES, Appellant

         On Appeal from the 55th District Court Harris County, Texas, Trial Court Cause No. 2015-57179

          Panel consists of Justices Christopher, Busby, and Jewell.



         Appellant Omar Valdes appeals from an order confirming an arbitration award against him on his claims of sex discrimination and retaliation arising from the termination of his employment from appellee, Whataburger Restaurants, LLC. Following his termination, Valdes initiated an arbitration proceeding under the Federal Arbitration Act. The arbitrator rejected his claims on the merits and ruled in Whataburger's favor. Valdes filed a motion to vacate the award, and Whataburger filed a motion to confirm it. The trial court granted Whataburger's motion to confirm and signed a final judgment accordingly. On appeal, Valdes contends the trial court erred in denying his motion to vacate the award. Concluding we lack authority to review some of his challenges and lack an adequate record to rule on others, we affirm the judgment.


         Whataburger hired Valdes as a team member in 2013.[1] His duties included operating the cash register. In March 2014, Valdes began a shift without counting his register's cash drawer. His failure to do so contravened his supervisor's instructions to count the cash drawer before logging into the computer system, which was part of Whataburger's cash-handling policy.[2] Later during his shift, after transacting business with customers, he notified his supervisor that he had not verified his cash drawer at the beginning of his shift. Upon counting the drawer, it was determined to be twenty dollars short. This discrepancy required a written warning to Valdes. As a result, Valdes became upset, yelled an obscenity at his supervisor, [3] and "stormed" out of the restaurant while stating that he would not return. Other employees and customers witnessed Valdes's outburst.

         After learning of Valdes's behavior, the restaurant's general manager decided he wanted to terminate Valdes, but discussed the matter with his area manager before reaching a final determination. The area manager agreed Valdes should be terminated. Whataburger notified Valdes that he was terminated five days after the incident. The restaurant's general manager, who hired Valdes initially, testified that Valdes's gender-male-had nothing to do with the termination decision.

         After filing a complaint with the Equal Employment Opportunity Commission and receiving a right to sue letter, Valdes initiated an arbitration proceeding under the Federal Arbitration Act (the "FAA"). The parties agree that the FAA applies to this dispute. Valdes asserted claims of sex discrimination and retaliation arising out of the decision to terminate his employment. As to the sex discrimination claim, the arbitrator ruled that Valdes failed to prove a prima facie case because he did not present evidence that he was qualified for his position or that female employees situated similarly to him were treated more favorably for similar infractions with respect to both the cash-handling and anti-profanity policies. Regarding the retaliation claim, the arbitrator ruled that, assuming Valdes engaged in a protected activity, Valdes did not show that the decision-makers knew that he had engaged in a protected activity before deciding to terminate his employment. The arbitrator signed an award denying all of Valdes's claims and assessing all costs and expenses of the arbitration proceeding against Whataburger.

         Valdes filed a motion to vacate, modify, and correct the award in district court, and Whataburger filed a motion to confirm. The trial court conducted a hearing on both motions; however, there is no record of that hearing before us.[4]While Valdes filed several documents with the district clerk just prior to the hearing, the record does not show that Valdes offered them into evidence or that the trial court admitted these documents into evidence during the hearing. Whataburger disputes that these documents are properly included as part of the appellate record. Following the hearing, the trial court signed a final judgment confirming the arbitrator's award. Valdes filed a motion to reconsider, which the trial court denied. Valdes appeals, arguing that the trial court should have vacated the award for several reasons, which we discuss below.

         Standard of Review

         We review de novo a trial court's decision to confirm or vacate an arbitration award. D.R. Horton-Tex., Ltd. v. Bernhard, 423 S.W.3d 532, 534 (Tex. App.-Houston [14th Dist.] 2014, pet. denied); Tanox, Inc. v. Akin, Gump, Strauss, Hauer & Feld, L.L.P., 105 S.W.3d 244, 250 (Tex. App.-Houston [14th Dist.] 2003, pet. denied); see also In re Chestnut Energy Partners, Inc., 300 S.W.3d 386, 397 (Tex. App.-Dallas 2009, pet. denied); Rain CII Carbon, LLC v. Conoco Phillips Co., 674 F.3d 469, 472 (5th Cir. 2012).

         Law Applicable to Vacating Arbitration Awards

         Review of an arbitration award is "extraordinarily narrow"[5] and "exceedingly deferential."[6] Arbitration awards have the same effect as a judgment of last resort and, consistent with the deferential and narrow scope of review, we indulge every reasonable presumption in favor of the award and none against it. See CVN Grp., Inc. v. Delgado, 95 S.W.3d 234, 238 (Tex. 2002); Amoco D.T. Co., 343 S.W.3d at 841. We review a challenge to an arbitration award under a "heavy presumption" in favor of confirming the award. Stage Stores, Inc. v. Gunnerson, 477 S.W.3d 848, 855 (Tex. App.-Houston [1st Dist.] 2015, no pet.); see also Cat Charter, LLC v. Schurtenberger, 646 F.3d 836, 842 (11th Cir. 2011); Brook v. Peak Int'l, Ltd., 294 F.3d 668, 672 (5th Cir. 2002).

         Under the FAA, an arbitration award must be confirmed unless it is vacated, modified, or corrected under specifically enumerated statutory grounds. See 9 U.S.C. §§ 9-11; Amoco D.T. Co., 343 S.W.3d at 841. The grounds for which a trial court may vacate an arbitration award are notably limited to those expressly identified in the statute, to the exclusion of all other potential grounds. See Hall St. Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576, 584 (2008) (statutory grounds provided in sections 10 and 11 of the FAA for vacating, modifying, or correcting an arbitration award are ...

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