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Freeman v. Occidental Petroleum Corp

United States District Court, S.D. Texas, Houston Division

January 9, 2018



         Pending before the court[1] is Defendants Occidental Petroleum Corporation (“Occidental”) and Oxy Energy Services (collectively, “Defendants”) Motion to Compel Arbitration (Doc. 12). The court has considered the motion, all other relevant filings, and the applicable law. For the reasons set forth below, the court RECOMMENDS that Defendants' motion be GRANTED.

         I. Case Background

         Plaintiff filed this action alleging that Defendants violated Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, [2] the Family Medical Leave Act[3] (“FMLA”), and the Texas Commission on Human Rights Act[4] in the course of her employment and termination.[5]

         Plaintiff commenced working for Occidental as a contract attorney under the Oxy Energy Services Group in March 2010.[6] After one year, Plaintiff was made an employee.[7] Plaintiff took FMLA leave for migraine headaches in August 2015, underwent surgery, and returned to work in November 2015.[8] Plaintiff alleges that she was treated differently after she returned.[9] After a series of perceived slights, Plaintiff complained to human resources on December 17, 2015.[10] The next day, Plaintiff was confronted with accusations of repeated tardiness and unprofessional behavior.[11]Plaintiff was terminated after this meeting.[12]

         Plaintiff filed her charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) and the Texas Workforce Commission on May 2, 2016, and received her right to sue letter from the EEOC on January 26, 2017.[13] Plaintiff filed her complaint with this court on April 25, 2017.[14] On August 16, 2017, Defendants filed the pending motion to compel arbitration.[15] In a hearing the following day, Plaintiff requested an extension to obtain counsel and respond to the motion, and the court gave her until September 27, 2017.[16] Plaintiff never filed a response.

         In the motion to compel arbitration, Defendants contend that Plaintiff consented to arbitration in three separate agreements, signed in 2013, 2014, and 2015.[17] These arbitration provisions were conditions of agreements involving Defendants' Long Term Incentive Awards.[18] The arbitration provisions are as follows:

Arbitration Provisions
Any dispute arising out of or in any way related to the Grantee's employment with the Company, or the termination of that employment will be decided exclusively by final and binding arbitration pursuant to any procedures required by applicable law. To the extent not inconsistent with the applicable law, any arbitration will be submitted to American Arbitration Association (“AAA”) and subject to AAA Employment Arbitration Rules and Mediation Procedures in effect at the time of filing of the demand for arbitration. Only the following claims are excluded from these Terms and Conditions: (1) claims for workers' compensation, unemployment compensation, or state disability benefits, and claims based on any pension or welfare benefit plan the terms of which contain an arbitration or other non-judicial dispute resolution procedure, (2) to the extent permitted by applicable law, claims for provisional remedies to maintain the status quo pending the outcome of arbitration, (3) claims based on compensation award agreements and incentive plans and (4) claims which are not permitted by applicable law to be subject to a binding pre-dispute arbitration agreement.
Any controversy regarding whether a particular dispute is subject to arbitration under this Section shall be decided by the arbitrator.
To the extent required under applicable law, the Grantee's responsibility for payment of the neutral arbitrator's fees and expenses shall be limited to an amount equal to the filing fee that would be required for a state court trial action and the Company shall pay all remaining fees and expenses of the arbitrator. Unless otherwise required under applicable law, the parties shall each pay their pro rata share of the neutral arbitrator's expenses and fees. Any controversy regarding the payment of fees and expenses under this arbitration provision shall be decided by the arbitrator.
The arbitrator may award any form of remedy or relief (including injunctive relief) that would otherwise be available in court. Any award pursuant to said arbitration shall be accompanied by a written opinion of the arbitrator setting forth the reason for the award. The award rendered by the arbitrator shall be conclusive and binding upon the parties hereto, and judgment upon the award may be entered, and enforcement may be sought in, any court of competent jurisdiction. To the extent not inconsistent with applicable laws, the arbitrator will have the authority to hear and grant motions.[19]

         Plaintiff accepted the Long Term Incentive Plan in 2013, 2014, and 2015.[20] These agreements were executed between Plaintiff and Occidential, and Oxy is a subsidiary of Occidental.[21]

         II. Legal Standard

         The Federal Arbitration Act (“FAA”) provides that a “written provision in . . . a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. The FAA allows a party that has entered an arbitration agreement to request an order compelling the parties to proceed with arbitration. 9 U.S.C. § 4. If the court is “satisfied” that an action is subject to an enforceable arbitration provision, the court must “stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement.” 9 U.S.C. § 3.

         The United States Supreme Court has repeatedly affirmed that the FAA established “a liberal federal policy favoring arbitration agreements.” CompuCredit Corp. v. Greenwood, 565 U.S. 95, 98 (2012)(quoting Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983)); see also AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011)(stating that the FAA reflects “both a liberal federal policy favoring arbitration and the fundamental principle that arbitration is a matter of contract.”)(internal quotations and citations omitted).

         Courts perform a two-prong inquiry when determining whether to compel a party to arbitrate: (1) whether the parties agreed to arbitrate, and (2) whether a federal statute or policy overrides the parties' agreement to arbitrate. Dealer Computer ...

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