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In re Dillard Department Stores3/3/2005
In this original proceeding, Relators Dillard Department Stores, Inc. and Grizelda Reeder (collectively "Dillard's") seek mandamus relief from an order denying their motion to compel arbitration of a defamation claim by former employee Andrea Martinez. Because Ms. Martinez's defamation claim did not fall within the scope of the arbitration agreement, the trial court did not abuse its discretion in refusing to compel arbitration. We therefore deny the requested writ of mandamus.
FACTUAL AND PROCEDURAL BACKGROUND
Andrea Martinez began her employment with Dillard's in 1983. In November 2002, Ms. Martinez was terminated from her employment with the company. In November 2003, Ms. Martinez filed suit against Dillard's. In her original petition, she alleged that Grizelda Reeder, Dillard's district manager, told the Cielo Vista store manager that she had evidence that Ms. Martinez had been stealing merchandise through fraudulent use of gift cards. Ms. Martinez stated that she and the store manager were terminated based upon two other allegedly false accusations: (1) that she had violated Section 61.06 of the Texas Labor Code by paying her daughter for her services with gift cards; and (2) that she had violated a corporate policy or instruction by allowing a gift card to be credited to an employee's account. She also claimed that immediately after her termination, a rumor began among current and former employees of Dillard's that she had actually been terminated for theft, notwithstanding her innocence of that original charge. Ms. Martinez asserted a cause of action for defamation against Dillard's, Ms. Reeder, and two unnamed defendants.
Dillard's generally denied Ms. Martinez's claims and filed a motion to compel arbitration, stating that Ms. Martinez had signed a form, "AGREEMENT TO ARBITRATE CERTAIN CLAIMS," on August 25, 2000 and that her defamation claim was expressly covered in the Rules of Arbitration. Attached to the motion were Ms. Martinez's signed acknowledgment of receipt of the Agreement to Arbitrate and the Rules of Arbitration and a copy of the Rules of Arbitration, effective "9/17/02," purportedly governing in this case. In her response, Ms. Martinez denied that she agreed to arbitrate her claims as alleged in the Motion and denied that defamation claims were specifically included in any arbitration agreement she voluntarily or knowingly signed. She also denied that the agreement to arbitrate was supported by valid consideration and affirmatively asserted that Dillard's promise to arbitrate any disputes with her was illusory because it had the power to modify and amend the agreement without notice to her.
On April 28, 2004, the trial court conducted a hearing on Dillard's motion to compel. At the hearing, Ms. Martinez's counsel stipulated that she had entered into an agreement to arbitrate in 2000, but it was not the one initially submitted to the court, that is, the "new" Rules of Arbitration dated September 17, 2002. On the day of the hearing, Dillard's filed a supplemental pleading in which it asserted for the first time that it was entitled to arbitration under the agreement in effect in 2000. However, at the hearing, Dillard's introduced into evidence an affidavit from Nanette Savage, the administrative assistance to Dillard's general counsel and records custodian, in which Ms. Savage attested that Exhibit "B," the 2002 Rules of Arbitration, were the arbitration rules that outlined "the arbitration process applicable to all employees of Dillards, Inc. and its affiliates, subsidiaries and limited liability partnerships in effect on the date of Ms. Martinez' termination." Ms. Martinez's counsel argued that Dillard's had judicially admitted, by its p
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