But there is no inconsistency here, and Dworkin's contractual protection distinguishes this case from the cases upon which NMG principally relies for its estoppel argument. See Hurt v. Standard Oil Co., 444 S.W.2d 342 (Tex.Civ.App.-El Paso 1969, no writ) (employee estopped to contend he had not retired where he received substantial retirement benefits); Allen v. Dempster Mill Mfg. Co., 402 S.W.2d 809 (Tex.Civ.App.-Amarillo 1966, writ ref'd n.r.e.) (employee estopped to demand written notice of contract cancellation when he signed notice of his retirement and accepted monthly retirement checks). In both Hurt and Allen, unlike the present case, the employer began with control of the employment relationship.
But if the evidence is undisputed as to the material facts, estoppel may be established as a matter of law. M.R.C.P. 56(c). See Allen v. Dempster Mill Mfg. Co., 402 S.W.2d 809, 810 (Tex.Ct.App.1966) (finding estoppel established as a matter of law because of undisputed record). ¶ 29.
But if the evidence is undisputed as to the material facts, estoppel may be established as a matter of law. M.R.C.P. 56(c). See Allen v. Dempster Mill Mfg. Co., 402 S.W.2d 809, 810 (Tex. Ct. App. 1966) (finding estoppel established as a matter of law because of undisputed record). 27.¶ Bearing in mind that quasi-estoppel "precludes a party from asserting, to another's disadvantage, a right inconsistent with a position it has previously taken," we find none of the material facts related to the inconsistency between Fore's present assertion and its previous actions are disputed.
In support of this contention, Texaco cites two cases holding that once employees have accepted retirement benefits, they are estopped from recovering wages pursuant to implied or express employment contracts. See Hurt v. Standard Oil Co. of Texas, 444 S.W.2d 342 (Tex.Civ.App. 1969, no writ); Allen v. Dempster Mill Mfg. Co., 402 S.W.2d 809 (Tex.Civ.App. 1966, writ ref'd n.r.e.). Texaco cites no cases establishing a waiver or estoppel principle when, as here, an employee brings a discrimination claim against the employer; and no such case emerged after independent research. Accordingly, Texaco's estoppel argument is unavailing.
We disagree. JWLI cites Allen v. Dempster Mill Mfg. Company, 402 S.W.2d 809 (Tex.Civ.App. — Amarillo 1966, writ ref'd n.r.e.), and Hurt v. Standard Oil Company of Texas, 444 S.W.2d 342 (Tex.Civ.App. — El Paso 1969, no writ), as support for its contention that Burden waived the requirement in the contract that Burden be given written notice of termination. These cases are distinguishable.
The severance pay in cash in the sum of $28,040.00 was made pursuant to a voluntary company policy, and not by virtue of any contractual right or legal obligation. We feel that the case of Allen v. Dempster Mill Mfg. Co., Tex.Civ.App., 402 S.W.2d 809 (ref. n.r.e.), is directly in point. There, as here, the appellee pleaded that appellant was estopped to contend he was not retired.