Opinion
NO. 14-16-00222-CV
06-15-2017
OMAR VALDES, Appellant v. WHATABURGER RESTAURANTS, LLC, Appellee
On Appeal from the 55th District Court Harris County, Texas
Trial Court Cause No. 2015-57179
MEMORANDUM OPINION
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.
Background
Whataburger hired Valdes as a team member in 2013. 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. 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, and "stormed" out of the restaurant while stating that he would not return. Other employees and customers witnessed Valdes's outburst.
Our recitation of the factual background is based on the facts determined by the arbitrator as set forth in the award, which is conclusive on all matters of fact properly submitted to the arbitrator. See Collins v. Tex. Mall, L.P., 297 S.W.3d 409, 415-16 (Tex. App.—Fort Worth 2009, no pet.); Bailey & Williams v. Westfall, 727 S.W.2d 86, 90 (Tex. App.—Dallas 1987, writ ref'd n.r.e.).
The purpose of verifying the cash drawer at the beginning of an employee's shift is to ensure the employee determines the exact amount in the register before transacting business. Thus, the employee bears responsibility for any shortage or overage occurring during his or her shift.
Using profanity on the job also violated Whataburger policy.
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. 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.
The record also does not include a reporter's record of the arbitration proceeding and neither party has stated whether the proceedings were transcribed.
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. ConocoPhillips Co., 674 F.3d 469, 472 (5th Cir. 2012).
Law Applicable to Vacating Arbitration Awards
Review of an arbitration award is "extraordinarily narrow" and "exceedingly deferential." 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).
Amoco D.T. Co. v. Occidental Petroleum Corp., 343 S.W.3d 837, 841 (Tex. App.—Houston [14th Dist.] 2011, pet. denied); Statewide Remodeling, Inc. v. Williams, 244 S.W.3d 564, 568 (Tex. App.—Dallas 2008, no pet.).
Apache Bohai Corp. LDC v. Texaco China BV, 480 F.3d 397, 401 (5th Cir. 2007).
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 exclusive); Rain CII Carbon, 674 F.3d at 472. Section 10(a) of the FAA provides that a trial court may vacate an arbitration award for any one of the following reasons:
(1) where the award was procured by corruption, fraud, or undue means;9 U.S.C. § 10(a)(1)-(4).
(2) where there was evident partiality or corruption in the arbitrators, or either of them;
(3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or
(4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.
A party seeking vacatur under the FAA bears a heavy burden to prove one of these statutorily enumerated grounds, which includes the burden to present a complete record establishing the reason or reasons for vacatur. See Amoco D.T. Co., 343 S.W.3d at 841; Williams, 244 S.W.3d at 568; Anzilotti v. Gene D. Liggin, Inc., 899 S.W.2d 264, 267 (Tex. App.—Houston [14th Dist.] 1995, no writ). Without a record of the arbitration proceedings, for example, we presume adequate support for the arbitration award. Barton v. Fashion Glass & Mirror, Ltd., 321 S.W.3d 641, 645 n.2 (Tex. App.—Houston [14th Dist.] 2010, no pet.); see Jamison & Harris v. Nat'l Loan Inv'rs, 939 S.W.2d 735, 737 (Tex. App.—Houston [14th Dist.] 1997, writ denied); Anzilotti, 899 S.W.2d at 267. More so, we have held that without a complete record of the evidence presented to the arbitrator during the arbitration proceedings, there can be no appellate review of alleged misbehavior by the arbitrator or a failure to hear evidence under the third ground. Jamison & Harris, 939 S.W.2d at 737 ("Without a record of the arbitration proceedings, we are unable to determine what evidence the arbitrator refused to hear or what evidence was offered before the arbitrator."). Even when a complete record of the arbitration proceedings is available on appeal, relief will not necessarily lie when an arbitrator commits an error—even a serious error. See Oxford Health Plans LLC v. Sutter, 133 S. Ct. 2064, 2068 (2013); Stage Stores, 477 S.W.3d at 855. With the above framework in mind, we turn to Valdes's issues.
Analysis
A. Issues
Valdes's brief contains a statement of issues, which includes quotations taken from the statutory text under 9 U.S.C. sections 10(a)(3) and 10(a)(4). For example, Valdes asserts that the arbitrator "engaged in misconduct in effectively refusing to hear evidence pertinent and material"; "engaged in misbehavior by which [Valdes's rights] have been prejudiced"; and "exceeded his powers, or so imperfectly executed them, that a mutual, final, and definite award upon the subject matter submitted was not made." He also asserts that the arbitrator "acted in manifest disregard of the laws governing" the FAA.
To the extent Valdes's brief refers to the statutory grounds for vacatur, however, his references to those sections in his statement of issues are conclusory. A review of the substance of his brief reveals that he is complaining of matters largely falling outside the permissible scope of the trial court's authority to vacate an award, or our appellate review of a confirmation ruling. We can reduce his contentions to three essential categories of argument: (1) evidentiary sufficiency complaints, including that the arbitrator misinterpreted the evidence; (2) discovery complaints based almost exclusively on the premise that the arbitrator refused to compel production of evidence from Whataburger that Valdes could have used to prove his prima facie case of sex discrimination; and (3) procedural complaints, including that the arbitrator refused to postpone the hearing.
We note that we are constrained to interpret Valdes's arguments without the aid of citations to case authority or to the appellate record because Valdes's brief contains no references to either. Valdes represented himself in the arbitration proceedings and has continued to act pro se throughout court proceedings. Though we construe his brief liberally, we do not afford it a more lenient construction than we would a represented party because we hold pro se parties to the same standard as licensed attorneys, and all parties, represented by counsel or not, must comply with all applicable rules of procedure. See Canton-Carter v. Baylor Coll. of Med., 271 S.W.3d 928, 930 (Tex. App.—Houston [14th Dist.] 2008, no pet.). A pro se litigant must properly present his case on appeal; if this were not the rule, pro se litigants would benefit from an unfair advantage over those parties who are represented by counsel. Id. We will not make allowances for or apply different standards because a case is presented by a pro se litigant. Id.
Nafiq v. Nueva Vida Apartments, No. 14-16-00152-CV, 2017 WL 1415832, at *1 (Tex. App.—Houston [14th Dist.] Apr. 18, 2017, no pet. h.) (mem. op., per curiam); see Harkins v. Dever Nursing Home, 999 S.W.2d 571, 573 (Tex. App.—Houston [14th Dist.] 1999, no pet.).
B. We lack authority to review Valdes's non-statutory grounds for vacatur
We begin by rejecting those substantive complaints over which we lack authority, such as Valdes's sufficiency of the evidence arguments. In the absence of a statutory ground to vacate or modify an arbitration award, a reviewing court may not consider other complaints, including the sufficiency of the evidence to support the award. See Venture Cotton Coop. v. Neudorf, No. 14-13-00808-CV, 2014 WL 4557765, at *3 (Tex. App.—Houston [14th Dist.] Sept. 16, 2014, no pet.) (mem. op.); Karaali v. Petroleum Wholesale, L.P., No. 14-11-00577-CV, 2013 WL 6198349, at *7 (Tex. App.—Houston [14th Dist.] Nov. 26, 2013, no pet.); IPCO-G.&C. Joint Venture v. A.B. Chance Co., 65 S.W.3d 252, 256 (Tex. App.—Houston [1st Dist.] 2001, pet. denied); Powell v. Gulf Coast Carriers Inc., 872 S.W.2d 22, 23 (Tex. App.—Houston [14th Dist.] 1994, no writ). A court cannot vacate an award for errors in interpretation of law or findings of fact, or for insufficiency of the evidence. Eljer Mfg., Inc. v. Kowin Dev. Corp., 14 F.3d 1250, 1254 (7th Cir. 1994) (arbitration is not a "junior varsity trial court" system subject to complete de novo review).
Nor may we review Valdes's "manifest disregard of the laws" argument. Based on the Supreme Court's decision in Hall, the Fifth Circuit in Citigroup clarified that "manifest disregard" of the law is not a potential independent non-statutory ground for vacatur under the FAA. Citigroup Glob. Mkts., Inc. v. Bacon, 562 F.3d 349, 358 (5th Cir. 2009); see Casa Del Mar Ass'n, Inc. v. Williams & Thomas, L.P., 476 S.W.3d 96, 100-01 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (holding trial court did not err by denying motion to vacate under the FAA based on the "manifest disregard" doctrine); Petroleum Analyzer Co. LP v. Olstowski, No. 01-09-00076-CV, 2010 WL 2789016, at *11-12 (Tex. App.—Houston [1st Dist.] July 15, 2010, no pet.) (mem. op.); see also Venture Cotton, 2014 WL 4557765, at *3 ("The bases for vacatur in section 10 [of the FAA] are exclusive.").
Valdes's brief mentions the phrase "manifest disregard of the laws" only in passing, and it does not explain, accompanied by argument or authority, how the arbitrator manifestly disregarded the law. Thus, assuming this contention presented a potentially viable ground to vacate an arbitration award, we would conclude Valdes has waived the complaint due to inadequate briefing. See Tex. R. App. P. 38.1(i); see also San Saba Energy L.P. v. Crawford, 171 S.W.3d 323, 338 (Tex. App.—Houston [14th Dist.] 2005, no pet.).
C. Valdes has not proven any statutory grounds for vacatur
It is not our burden to sift through the record when a party's brief contains no record citations. Nonetheless, we have reviewed the record presented to us and find no evidence supporting any of the arguments for vacatur raised in Valdes's motion to vacate and included in his brief on appeal.
Curtis v. Comm'n for Lawyer Discipline, 20 S.W.3d 227, 237 n.2 (Tex. App.—Houston [14th Dist.] 2000, no pet.).
Aside from his evidentiary sufficiency complaints, Valdes's arguments focus substantially on the premise that he lacked adequate discovery to prove his prima facie case. According to Valdes, Whataburger did not produce certain categories of requested documents and the arbitrator refused to compel their production.
Valdes has not explained how the discovery issues he describes in his brief resulted from the arbitrator's "misconduct" or other prejudicial "misbehavior." 9 U.S.C. § 10(a)(3). Courts generally defer to arbitrators on enforcement of procedural matters. Kline v. O'Quinn, 874 S.W.2d 776, 782-83 (Tex. App.—Houston [14th Dist.] 1994, writ denied). Of course, a difference of opinion on the solution to a procedural issue is not "misconduct." Lennox-Inv. Corp. v. Bank of Am., N.A., No. 05-00-01752-CV, 2002 WL 979563, at *5 (Tex. App.—Dallas May 14, 2002, no pet.) (not designated for publication); see also Marshall & Co. v. Duke, 941 F. Supp. 1207, 1211 (N.D. Ga. 1995), aff'd, 114 F.3d 188 (11th Cir. 1997). Valdes does not contend that the arbitrator denied him an opportunity to be heard as to Whataburger's discovery responses; he merely disagrees with the arbitrator's ruling, without arguing that the arbitrator erred or explaining why he believes "misconduct" or "misbehavior" occurred.
In any event, we cannot discern whether the alleged discovery matters of which Valdes complains in fact occurred, nor can we evaluate them to determine whether Valdes was "denied a fundamentally fair hearing," due to the lack of a record of those proceedings. See Long Lake, Ltd. v. Heinsohn, No. 14-09-00613-CV, 2010 WL 1379979, at *2 (Tex. App.—Houston [14th Dist.] Apr. 8, 2010, no pet.) (mem. op.); see also Goldman v. Buchanan, No. 05-12-00050-CV, 2013 WL 1281744, at *2 (Tex. App.—Dallas Mar. 21, 2013, no pet.) (holding that without complete record of arbitration proceedings, there can be no appellate review of the arbitrator's discovery rulings); cf. Petrobras Am., 2012 WL 1068311 at *12-15 (rejecting argument that arbitrator engaged in misconduct by not affording certain discovery and refusing postponement of hearing; reviewing entire arbitration record). No reporter's record of the arbitration proceedings is before us. Similarly, the record indicates that the trial court heard oral argument on Valdes's motion to vacate the arbitration award, but does not indicate that any evidence or testimony was presented, and no reporter's record exists from the trial court's hearing. We cannot evaluate whether Valdes demonstrated in the trial court that the arbitrator engaged in "misconduct" or other "misbehavior" that would, under the FAA, support vacatur of the award. Without a record, we are to presume that adequate evidence was presented to support the arbitrator's rulings and award. Anzilotti, 899 S.W.2d at 267; Kline, 874 S.W.2d at 783; House Grain Co. v. Obst, 659 S.W.2d 903, 906 (Tex. App.—Corpus Christi 1983, writ ref'd n.r.e.).
Arbitrators are not bound by formal rules of procedure and evidence, and the ultimate question is "'whether a party to arbitration has been denied a fundamentally fair hearing.'" See Petrobras Am., Inc. v. Astra Oil Trading NV, No. 01-11-00073-CV, 2012 WL 1068311, at *13 (Tex. App.—Houston [1st Dist.] Mar. 29, 2012, no pet.) (mem. op.) (quoting Nat'l Post Office v. U.S. Postal Serv, 751 F.2d 834, 841 (6th Cir. 1985)); see also id. ("Thus, the inquiry here is whether Petrobras proved that the Panel's decision not to order further discovery and postpone the arbitration hearing deprived Petrobras of a fair hearing.").
The absence of a record of the arbitration proceedings is not cured by the documents Valdes filed with the district clerk prior to the hearing on his motion to vacate. See Long Lake, 2010 WL 1379979, at *3 (holding lack of arbitration record not cured by appellant's attempt to file documents in trial court accompanied by affidavit).
Likewise, Valdes's complaint that the arbitrator refused to postpone the arbitration hearing requires a record of the arbitration proceedings to enable judicial review. See Henry S. Miller Brokerage, LLC v. Sanders, No. 05-14-01618-CV, 2015 WL 4600218, at *3 (Tex. App.—Dallas July 31, 2015, no pet.) (mem. op.) (concluding record was insufficient to determine whether the arbitrator abused its discretion by refusing continuance); cf. Petrobras Am., 2012 WL 1068311, at *12-15. If the record does not demonstrate error or is silent, the award must be presumed correct. Nafta Traders, Inc. v. Quinn, 339 S.W.3d 84, 102 & n.81 (Tex. 2011); Henry S. Miller, 2015 WL 4600218, at *3.
Finally, to the extent Valdes claims the arbitrator exceeded his powers in such a way as to implicate a potential ground for vacatur under the FAA, we conclude he has inadequately briefed that issue. Tex. R. App. P. 38.1(i). Only Valdes's "issues presented" section suggests that the arbitrator "exceeded his powers," and even there it is mentioned in conclusory fashion. The brief contains no argument, authority, or record citations demonstrating that the arbitrator acted outside the bounds of his power. Conclusory statements unsupported by legal authority do not suffice to meet the requirements of our briefing rules. See Collins v. Walker, 341 S.W.3d 570, 575 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (op. on reh'g). Even construing Valdes's appellate brief liberally, we conclude that he has not briefed this issue adequately. See Tex. R. App. P. 38.1(i); see also San Saba Energy, 171 S.W.3d at 338. Accordingly, Valdes has waived any complaint he may have based on section 10(a)(4). Collins, 341 S.W.3d at 575.
Conclusion
The record does not reflect that Valdes met his burden to prove a statutory ground to vacate the arbitration award. Thus, the trial court had a mandatory duty to confirm it. Finding no error, we affirm the trial court's judgment.
/s/ Kevin Jewell
Justice Panel consists of Justices Christopher, Busby, and Jewell.