Opinion
01-21-00511-CV
12-29-2022
IN RE JESUS DE LA CERDA, JR., Relator
Original Proceeding on Petition for Writ of Mandamus
Panel consists of Chief Justice Radack and Justices Landau and Hightower.
MEMORANDUM OPINION
Sarah Beth Landau, Justice
Texas Rule of Civil Procedure 202 allows a court to authorize depositions "to investigate a potential claim or suit." TEX. R. CIV. P. 202.1(b). Jesus De La Cerda, Jr. petitioned under Rule 202 to depose a corporate representative of his former employer, Occidental Petroleum Corporation ("Oxy"), and three Oxy employees for the purpose of investigating potential claims for separation benefits and tortious interference with his contractual right to receive such benefits. Oxy opposed the requested presuit depositions, and, after a hearing, the trial court denied De La Cerda's petition. De La Cerda attempted to appeal and, in the alternative, requested mandamus relief, complaining in three issues that the trial court clearly abused its discretion by denying his Rule 202 petition.
For reasons explained below, De La Cerda's complaints about the trial court's order may not be addressed through his attempted appeal but are subject to review mandamus review, which De La Cerda requests. Accordingly, we treat De La Cerda's appeal as a petition for writ of mandamus. Because De La Cerda has not demonstrated a clear abuse of the trial court's discretion, however, we deny the writ.
The underlying case is In re Jesus De La Cerda, Jr., Cause No. 2020-74375, in the 151st District Court of Harris County, Texas, the Honorable Mike Engelhart presiding.
Background
De La Cerda was a supply chain manager for Anadarko Petroleum Corporation ("Anadarko") when Anadarko was acquired by Oxy in August 2019. De La Cerda resigned his position with Oxy about a year after the acquisition, claiming that his job responsibilities had materially diminished. After resigning, De La Cerda filed a verified Rule 202 petition seeking to investigate a potential claim for separation benefits under Anadarko's Amended and Restated Change of Control Severance Plan ("Plan").
Relevant here, the Plan allows participants to resign their employment and claim separation benefits if they experience a "termination for Good Reason." A "termination for Good Reason" occurs when a participant's "duties and responsibilities as an Employee are materially and adversely diminished in comparison to the duties and responsibilities enjoyed by the [p]articipant immediately prior to the Change of Control." In Article 9, the Plan requires a participant who believes separation benefits should have been but were not paid to "file a claim with the Plan Administrator within six (6) months of the date" his employment terminated or his right to receive those benefits may be lost. Under the heading "Exhaustion of Administrative Remedies," the Plan states:
It is undisputed that Oxy's acquisition of Anadarko qualified as a change of control under the Plan.
Completion of the claims procedures described in Sections 9.2 [notice of claim] and 9.3 [review of claim] is a condition precedent to the commencement of any legal or equitable action in connection with a claim for any benefits under the Plan . . . provided, however, the Plan Administrator may, in its discretion, waive compliance with such claims procedures as a condition precedent to filing of any such action.
According to De La Cerda's petition, his job responsibilities materially and adversely diminished in April 2020, when Oxy took away his responsibility for managing three supply categories-chemicals, contract labor, and rotating equipment-and began excluding him from meetings while instructing another employee whom he supervised, Anna Donahue, to attend in his stead. He estimated that these changes reduced his job responsibilities by 50 percent. In addition, De La Cerda complained that Oxy reduced his authority to enter contracts from $6 million to $5000.
On July 10, De La Cerda submitted a Good Reason Inquiry Form-a form approved by the Plan Administrator to allow participants to ask whether a Good Reason event has occurred without first resigning their employment-to the Health and Welfare Benefits Administrative Committee ("Committee"). De La Cerda did not make a claim for separation benefits using the Article 9 claims procedures.
Two weeks later, the Committee responded that the circumstances De La Cerda described were not a Good Reason event. In its letter to De La Cerda, the Committee stated that it had "confirmed the facts of [his] situation with David Adams and Andrew Kershaw," Oxy employees, and concluded that De La Cerda's "duties and responsibilities ha[d] remained unchanged." The Committee attributed any reduction in De La Cerda's responsibilities to "economic issues in the oil industry." The Committee instructed De La Cerda:
Your submission of the Good Reason Inquiry Form was an opportunity for you to have your situation evaluated as to whether you experienced a Good Reason event under the [] Plan prior to filing a formal claim under the [] Plan. If you believe that your circumstances constituted a Good Reason event, you have the option, in your complete discretion, of filing a formal claim for benefits as a Claimant under Section 9.2 of the [] Plan.
Two days later, De La Cerda resigned from Oxy. He subsequently filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC"), alleging that Oxy had discriminated against him based on race, color, national origin, and age, and also retaliated against him after he filed an internal complaint challenging the termination of "[three] minority and experienced contractors on [his] team." The attachments to the EEOC complaint included an email from De La Cerda to Oxy in which he further alleged that Adams and Kershaw had retaliated against him by "report[ing] inaccuracies in response to [his] Good Reason Inquiry Form," resulting in the "initial denial of [his] benefits per [the Plan.]" De La Cerda claimed that Oxy's discriminatory and retaliatory actions violated Title VII of the Civil Rights Act of 1964 ("Title VII") and Chapter 21 of the Texas Labor Code ("Chapter 21").
See 42 U.S.C. §§ 2000e to 2000e-17; TEX. LAB. CODE §§ 21.001-.556.
In his Rule 202 petition, De La Cerda requested presuit depositions of:
• an Oxy corporate representative 11 topics "for the purpose[] of investigating whether [De La Cerda] has a claim under the [Plan]";
• Donahue regarding "any meetings she participated in without [his] involvement" and "any directives given to her from any supervisor without [his] knowledge or involvement";
• Adams regarding "the reduction of [De La Cerda's] job duties and the resulting direction given to [] Donahue to essentially replace him"; and
• Kershaw regarding "the reduction of [De La Cerda's] authority level" from $6 million to $5000.
Although De La Cerda's petition stated that the requested deposition of a corporate representative was to investigate his claim for separation benefits, the anticipated deposition topics included the results of any investigation related to his complaint of racial discrimination.
De La Cerda also requested the production of documents related to the 11 topics identified for the corporate representative deposition.
The petition asserted that this presuit discovery would allow De La Cerda to "investigate and elicit information regarding the availability of severance benefits and/or the tortious interference with those benefits by [] Adams and/or [] Kershaw." Further, the petition stated, "If suit is filed, it would be against Oxy and Anadarko."
Oxy objected to the requested depositions. Oxy argued that the petition should be denied because De La Cerda was attempting to use Rule 202 as "an end-run around his obligations to exhaust administrative remedies" under the Plan, Title VII, and Chapter 21. Oxy also objected that De La Cerda had not shown that the likely benefit of the requested discovery outweighed the burden or expense of the procedure and that he was requesting discovery "far broader" than what he would otherwise be able to obtain in his anticipated suit.
The trial court conducted an evidentiary hearing. Despite the statement in his petition that he anticipated a suit against Oxy or Anadarko, De La Cerda argued at the hearing that the claim he sought to investigate in the presuit depositions was a claim for tortious interference against Adams and Kershaw. De La Cerda testified that, at the time of the hearing, he had not filed a "formal claim" for separation benefits under the Plan procedures but was still within the time for doing so. He agreed that he requested the presuit discovery "for purposes of severance benefits" and expressed his opinion that because the Committee had already rejected his Good Reason position, any claim he filed would be rejected unless he obtained supporting evidence. He estimated $700,000 in damages for Adams's and Kershaw's alleged tortious interference with his contractual right to receive separation benefits.
The trial court denied De La Cerda's Rule 202 petition and issued findings of fact and conclusions of law. The pertinent fact findings include that:
4.... [De La Cerda] ha[d] not filed a claim for benefits under [the Plan], which is governed by the Employment Retirement Income Security Act ("ERISA").
5.... [De La Cerda] must exhaust his administrative remedies under the Plan before attempting to bring suit to recover ERISA benefits.
6.... [De La Cerda] ha[d] not completed the administrative process with the [EEOC] and/or Texas Workforce Commission ("TWC") as to his Charge of Discrimination.
7.... [De La Cerda] must exhaust his administrative remedies with the EEOC and/or TWC before attempting to bring suit for any damages.
8. Even if [De La Cerda] had exhausted his administrative remedies, based on the evidence submitted, [he] seeks routine discovery that is contrary to the purpose of Rule 202.
9. Even if [De La Cerda] had exhausted his administrative remedies, based on the evidence submitted, [he] has not satisfied
his burden [to show] that the requested discovery is necessary to prevent a failure or delay of justice in an anticipated suit, or that the likely benefit of allowing [him] to seek the discovery to investigate a potential claim outweighs the burden o[r] expense of the procedure.
10.Even if [De La Cerda] had exhausted his administrative remedies, the discovery he seeks is not limited to the same as if the anticipated suit or potential claim had been filed.
In addition, the trial court stated a number of legal conclusions, including that a Rule 202 petitioner is required to exhaust administrative remedies before seeking presuit discovery; that the petitioner bears the burden to prove that "the likely benefit of allowing [him] to take the requested deposition to investigate a potential claim outweighs the burden or expense of the procedure"; that presuit discovery under Rule 202 is not "intended for routine use" and, consequently, courts must carefully supervise such discovery to prevent abuse of the rule; and that Rule 202 restricts discovery in depositions to "the same as if the anticipated suit or potential claim had been filed" and is not intended to be used as a means for obtaining otherwise unattainable discovery.
Appeal or Mandamus
De La Cerda appealed the trial court's order denying his Rule 202 petition and, in the alternative, requested that we treat his appeal as a petition for writ of mandamus if we conclude the order is not appealable. Accordingly, we must first determine whether De La Cerda's complaints are appropriately addressed through an appeal or through a petition for writ of mandamus.
In general, absent a statute providing otherwise, our appellate jurisdiction in civil cases is limited to final judgments. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). And as to the finality of presuit deposition orders, the Texas Supreme Court has determined:
Presuit deposition orders are appealable only if sought from someone against whom suit is not anticipated; when sought from an anticipated defendant (as here), such orders have been considered ancillary to the subsequent suit, and thus neither final nor appealable.In re Jorden, 249 S.W.3d 416, 419 (Tex. 2008) (orig. proceeding) (emphasis in original and internal footnotes omitted); see also Caress v. Fortier, 576 S.W.3d 778, 781 (Tex. App.-Houston [1st Dist.] 2019, pet. denied) ("[A]n order granting or denying a request for deposition of a person against whom suit is contemplated is not appealable."). However, "[a]n improper order under Rule 202 may be set aside by mandamus." In re Wolfe, 341 S.W.3d 932, 933 (Tex. 2011) (orig. proceeding) (per curiam); In re Bailey-Newell, 439 S.W.3d 428, 431 (Tex. App.-Houston [1st Dist.] 2014, orig. proceeding) (noting that mandamus review of presuit deposition order is appropriate).
Here, De La Cerda requested the deposition of Oxy's corporate representative and three Oxy employees. In his petition and at the hearing, De La Cerda identified Oxy and two of its employees, Adams and Kershaw, as potential defendants in an anticipated suit related to a denial of separation benefits under the Plan. De La Cerda thus sought discovery from anticipated defendants, and the trial court's order denying the requested discovery is ancillary to that possible suit and neither final nor appealable. See In re Jorden, 249 S.W.3d at 419.
Although we would normally dismiss this appeal for want of jurisdiction, De La Cerda has requested that we consider the improper appeal as a petition for writ of mandamus. Because De La Cerda specifically requests mandamus relief in his brief and because judicial economy militates against requiring De La Cerda to file a separate original proceeding, we treat his appeal as a petition for writ of mandamus. See CMHHomes v. Perez, 340 S.W.3d 444, 453-54 (Tex. 2011) (orig. proceeding) (instructing court of appeals to treat appeal as petition for writ of mandamus on remand because party specifically requested mandamus relief and judicial efficiency favored that treatment); Jones v. Brelsford, 390 S.W.3d 486, 497 n.7 (Tex. App.- Houston [1st Dist.] 2012, no pet.) ("[I]n an appropriate case, we may treat an appeal as a petition for writ of mandamus."); see also In re Heaven Sent Floor Care, No. 05-16-00628-CV, 2017 WL 462352, at *1 n.1 (Tex. App.-Dallas Jan. 30, 2017, orig. proceeding) (mem. op.) (treating appeal from order denying rule 202 petition as petition for writ of mandamus).
Rule 202Because we have concluded the trial court's order denying De La Cerda's Rule 202 petition is subject to mandamus review, we turn our focus to whether De La Cerda has shown a clear abuse of trial court's discretion. See In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex. 2004) (orig. proceeding) (petitioner seeking mandamus relief must show that trial court clearly abused its discretion). In his third issue, De La Cerda argues the denial of his petition was an abuse of discretion because he established that the benefit of allowing the presuit discovery outweighed the burden or expense of the procedure. We disagree.
A. Standard of review
In the context of an original proceeding, in determining whether the trial court abused its discretion in resolving factual matters or matters committed to its discretion, we may not substitute our judgment for that of the trial court and may not disturb the trial court's decision unless it is shown to be arbitrary and unreasonable. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding). Consequently, to show an abuse of discretion as to factual or discretionary matters, the relator must establish that the trial court could reasonably have reached only one decision. Id. at 840. However, our review of the trial court's determination of the legal principles controlling its ruling is less deferential because a trial court has no discretion in determining what the law is or applying the law to the facts. Id. A clear failure by the trial court to analyze or apply the law correctly constitutes an abuse of discretion. Id.
B. No abuse of discretion
Relevant here, Rule 202 authorizes presuit depositions to investigate a potential claim or suit. Tex.R.Civ.P. 202.1(b). But Rule 202 depositions are not intended for routine use. In re Jorden, 249 S.W.3d at 423 (noting practical and due process problems with demanding discovery from someone before telling them what the issues are). To prevent abuse of the rule, courts must "strictly limit and carefully supervise" presuit discovery. In re Wolfe, 341 S.W.3d at 933. Before a trial court can order a deposition under Rule 202, the petitioner must demonstrate and the trial court must find that "(1) allowing the petitioner to take the requested deposition may prevent a failure or delay of justice in an anticipated suit[,] or (2) the likely benefit of allowing the petitioner to take the requested deposition to investigate a potential claim outweighs the burden or expense of the procedure." TEX. R. CIV. P. 202.4(a); see also In re Bailey-Newell, 439 S.W.3d at 431.
Here, De La Cerda requested presuit discovery on the second basis, i.e., that the likely benefit discovery outweighed its burden or expense. See TEX. R. CIV. P. 202.4(a)(2). De La Cerda argues that the trial court's finding that he failed to make that showing was an abuse of discretion because the evidence compelled the opposite finding. In support, De La Cerda cites the Committee's response to his Good Reason Inquiry Form, stating the Committee's conclusion that De La Cerda's job responsibilities had not changed since Oxy acquired Anadarko, and his own belief that the Committee would not change its position without additional evidence because it had repeatedly refused another employee "in [a] similar situation." In other words, De La Cerda asserts the presuit discovery would improve the odds of Oxy providing separation benefits under the Plan, which, in turn, might eliminate the need for any claim against Oxy or Adams and Kershaw or at least reduce the damages resulting from Adams's and Kershaw's alleged tortious interference.
In this regard, De La Cerda claims his petition for presuit discovery is similar to the one granted in In re City of Tatum, 578 S.W.3d 203 (Tex. App.-Tyler 2019, orig. proceeding). There, the petitioner sought the depositions of a police chief and records custodian and the production of related documents for the purpose of investigating a potential claim against a police officer for sexual assault. Id. at 205206. She alleged that the likely benefit of being allowed to take the depositions to investigate her potential claim outweighed the burden or expense of the procedure, and that the information was essential to deciding the proper forum for further action. Id. at 206. At the hearing on her petition, the petitioner's counsel testified that the discovery would help determine whether to file a Section 1983 claim in federal court or pursue state law causes of action. Counsel explained that, with respect to a Section 1983 claim, "conducting presuit depositions would eliminate the lengthy process and expense associated with determining qualified immunity, thereby avoiding a waste of judicial resources, and possibly eliminating the claim altogether if there is no basis for it." Id. at 211. Counsel also testified about the significant expense of qualified immunity litigation. Id. And regarding the potential state law claims, counsel explained that conducting presuit depositions would help determine which parties to sue, considering the Texas Tort Claims Act's election-of-remedies requirement. Id. at 206-207, 211. The appellate court concluded that counsel's testimony supported the trial court's finding that the likely benefit of the requested discovery outweighed the burden or expense of the procedure, and thus the trial court did not abuse its discretion by granting the Rule 202 petition. Id. at 211. The court also noted that the burden or expense would be minimal because the police chief was also the custodian of records. Id.
Section 101.106 of the Texas Tort Claims Act requires a plaintiff to make an irrevocable election of whether to sue a governmental unit or an individual employee of the governmental unit; she may not sue both. See TEX. CIV. PRAC. &REM. CODE §§ 101.106(a)-(b), (e).
City of Tatum is not persuasive authority for De La Cerda's contention that the trial court abused its discretion here. Unlike the City of Tatum petitioner, De La Cerda did not present evidence tying the requested presuit discovery to threshold jurisdictional questions or elicit testimony on the consequence or burden of litigating those questions absent the discovery. His primary evidence of the discovery's likely benefit is his own supposition that Oxy may grant separation benefits it had not yet denied. And, unlike our colleagues in Tyler, we cannot say that the burden of the presuit discovery requested by De La Cerda would be only minimal. The trial court had before it De La Cerda's petition seeking the deposition of not one but four witnesses. He sought to depose Oxy's corporate representative on 11 topics, many of which contained multiple subparts and at least one of which related to alleged discriminatory or retaliatory employment practices and not De La Cerda's anticipated claims for separation benefits or tortious interference with his contractual right to receive such benefits.
In addition, De La Cerda sought production of documents on the same topics. Some examples of these topics include "[a]ll meetings, request for proposals/quotes, bids, agreements/contracts entered into or negotiated by [Oxy's] Corporate [Supply Chain Management] team" in the categories of "Chemicals," "Contract/Consulting Labor," and "Rotating Equipment" from April 30, 2020 to October 1, 2020." De La Cerda specified that the requested information should identify:
a. All meetings and negotiations held regarding any requests for proposals/quotes, bids, agreements/contracts identified;
b. All attendees and participants at any of the meetings identified . . .;
c. All bid summaries, clarifications, and/or tabulations for any of the responsive proposals/quotes, bids, agreements/contracts identified;
d. All decision summaries for any of the responsive proposals/quotes, bids, agreements/contracts identified;
e. All requests for quotes/proposals for any of the responsive proposals/quotes, bids, agreements/contracts identified; and
f. All requests for approvals/award recommendations for any of the responsive proposals/quotes, bids, agreements/contracts identified.
De La Cerda also sought information on the "authority level and scope of work" for Anadarko or Oxy supply chain managers in multiple business units.
Considering the quantum of the requested discovery alongside the undisputed evidence that De La Cerda had not yet filed a claim for separation benefits under the Plan, meaning the burden and expense of the requested discovery would apply even before the action potentially giving rise to the anticipated claims had occurred, we cannot say the trial court's finding on the benefits-versus-burden inquiry was arbitrary or unreasonable. See TEX. R. CIV. P. 202.4(A)(2); see also Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002) (trial court does not abuse its discretion if some evidence reasonably supports court's decision); Walker, 827 S.W.2d at 840 (relator must establish that trial court could reasonably have reached only one decision). We therefore hold that De La Cerda has not shown a clear abuse of discretion by the trial court, and we resolve his third issue against him.
Considering our disposition of issue three, we do not reach De La Cerda's first and second issues challenging the alternative bases for the denial of his Rule 202 petition. See TEX. R. APP. P. 47.1. Nor do we resolve the parties' disagreement about whether De La Cerda adequately challenged one of the alternative bases for the trial court's order in his opening brief. See id.
Conclusion
For the reasons stated herein, we deny mandamus relief from the trial court's order denying De La Cerda's Rule 202 petition.