author: SUSAN LARSEN, Justice.

text:
    In re DILLARD DEPARTMENT STORES, INC., Relator.
    No. 08-04-00262-CV.
    Court of Appeals of Texas, El Paso.
    Nov. 24, 2004.

      John P. Mobbs, El Paso, for real party in interest.
    Robert A. Valadez, Shelton & Valadez, Nissa M. Sanders, Crofts & Callaway, P.C., San Antonio, for relator.
    Linda Y. Chew, El Paso, for respondent.
    Before Panel No. 4 BARAJAS, C.J., LARSEN, and McCLURE, JJ.
   OPINION

SUSAN LARSEN, Justice.

Dillard Department Stores, Inc. (Dillard’s) seeks a writ of mandamus to compel its former employee, Delia Garcia, to arbitrate her retaliatory discharge claim. Because Dillard’s failed to establish an agreement to arbitrate, we find 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

Delia Garcia worked at the Dillard’s store in Sunland Park Mall. She was fired after she filed a claim for workers’ compensation benefits. Garcia sued Dillard’s, alleging retaliatory discharge. Dillard’s filed a motion to compel arbitration, stating that it has a mandatory program that requires all disputes related to employment termination to be resolved through binding arbitration. Attached to the motion were affidavits by Yolanda Maese and Scott McMurtrie.

Maese, a sales manager at the Sunland Park store, averred that in August 2000, Dillard’s implemented a “Fairness in Action Program,” which requires that all disputes related to employment termination be submitted to binding arbitration. On August 27, 2000, at 10 a.m., she assisted in conducting a mandatory meeting at which the arbitration program was explained to employees. At the meeting, employees were given information packets that detailed the program.

McMurtrie averred that he was the custodian of records for Dillard’s. Attached to his affidavit were payroll records showing that Garcia was “on the clock” from 9:48 a.m. until 1:06 p.m. on the day of the meeting. Also attached to McMurtrie’s affidavit as Exhibit 1A was the information packet that was distributed at the meeting.

The information packet consists of two documents. The first, entitled “The Dillard’s Fairness in Action Program,” is a six-page summary of the arbitration program. The first page of this document states, “By accepting or continuing employment with Dillard’s, you have agreed to accept the Program known as the Agreement to Arbitrate Certain Claims.” The second document included in the information packet is entitled “Current Associate Agreement to Arbitrate Certain Claims.” The first page of this document is an acknowledgment form that states, “EFFECTIVE August 1, 2000, all employees ... employed at the stores wherein this Agreement has been distributed shall be subject to the RULES OF ARBITRATION ... described below. Employees are deemed to have agreed to the provisions of the RULES by virtue of accepting employment ... and/or continuing employment. ...” Below this statement are signature blocks for the employee and a witness to sign, acknowledging that the employee received a copy of the “Agreement to Arbitrate and Rules of Arbitrate [sic].” The remainder of the document, commencing on page three, is entitled “Rules of Arbitration.” The Rules provide that claims for “Retaliation for filing a protected claim for benefits (such as workers’ compensation)” are covered under the arbitration program.

Garcia filed a response to the motion to compel arbitration. She argued that the motion should be denied because she did not agree to arbitration and because the consideration for the purported agreement was illusory. Attached to the response was an affidavit by Garcia, which supported her argument that she did not agree to arbitration. The affidavit states:

In the fall of 2000 I was presented -with a document by my employer that I was asked to sign. I was presented the document during a sales meeting at which time the arbitration agreement was not explained. I read the document which provided for a short explanation of the program to arbitrate claims against Dillard’s. The document was never explained to me and was not the basis of the meeting I attended when it was presented. I refused to sign the agreement because I did not agree to be bound by terms of the agreement. I was not the only employee who refused to sign the agreement. I was never told or instructed by any employee of Dillard’s that if I continued my employment I would be bound by the terms of any arbitration agreement. I was never presented with a copy of The Dillard’s Fairness in Action Program or Rules of Arbitration which is attached as Exhibit “A” to Defendant’s Motion to Compel Arbitration.

The trial court conducted a hearing on Dillard’s motion to compel. At the hearing, McMurtrie testified that he is the operations manager at the Sunland Park store. He was not at the August 27 employee meeting, but he believed that Garcia attended it because the payroll records showed that she clocked in right before the meeting started at 10 a.m. August 27 was a Sunday, and employees would not normally be on the clock at that time on a Sunday. The store did not open until 12 p'.m. and there would not be any other business to be conducted on Sunday morning before the store opened.

Although he was not at the August 27 meeting, McMurtrie testified regarding how such meetings were typically run. He stated that they would “go over the two documents, the fairness-in-action program and then, of course, the actual arbitration documents.” He testified, “We would give them the fairness-in-action program and also the arbitration packet....” McMur-trie testified that Garcia’s personnel file did not contain a signed copy of the acknowledgment form. In reference to the statement in Garcia’s affidavit that she was “provided a short explanation of the program to arbitrate claims,” McMurtrie testified that the only documents that would have been presented to employees regarding the arbitration program were the two documents that were included in Exhibit 1A to the motion to compel.

McMurtrie acknowledged that the rules for arbitration had been changed at least once since the August 27, 2000 meeting was held and that the employees were not informed of the changes. But he also testified that employees are bound by the rules that were in effect at the time that they were presented with the program.

Maese testified that at the August 27 meeting, employees were given copies of the documents included in Exhibit 1A and were told that by continuing to work for Dillard’s they were effectively agreeing to arbitrate any claims related to termination of employment. She did not recall anyone refusing to sign the acknowledgment form. Like McMurtrie, Maese was not aware of any other reason for Garcia to have been clocked in at 10 a.m. on a Sunday morning other than to attend the meeting. But she did not remember seeing Garcia at the meeting, which over fifty people attended. Also like McMurtrie, she was not aware of any document that would provide a short explanation of the arbitration program other than the documents included in Exhibit 1A.

The trial court denied Dillard’s motion to compel, and this proceeding ensued.

STANDARD OF REVIEW

We may issue a writ of mandamus if: (1) the trial court clearly abused its discretion and (2) there is no other adequate remedy at law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992) (orig. proceeding).

The relator has the burden of establishing that the trial court abused its discretion. Id. at 840. A trial court abuses its discretion when it reaches a decision so arbitrary and unreasonable as to be a clear and prejudicial error of law. Id. With respect to the resolution of factual issues, this means that we may not substitute our judgment for that of the trial court, even if we would have decided the issue differently. Id. at 839-40. Instead, we may not overturn the trial court’s decision unless that court could reasonably have reached only the opposite decision. See id. at 840. With respect to the resolution of legal issues, our review is much less deferential. Id. The trial court has no discretion in determining what the law is or in applying the law to the facts. Id. Therefore, a clear failure by the trial court to analyze or apply the law correctly constitutes an abuse of discretion. Id.

There is no other adequate remedy at law when a trial court improperly denies a motion to compel arbitration under the Federal Arbitration Act. In re Halliburton Co., 80 S.W.3d 566, 573 (Tex.2002), cert. denied, 537 U.S. 1112, 123 S.Ct. 901, 154 L.Ed.2d 785 (2003); Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272-73 (Tex.1992). It is undisputed that Garcia’s employment relationship with Dillard’s involved interstate commerce; therefore, the Federal Arbitration Act applies. See Granite Constr. Co. v. Beaty, 130 S.W.3d 362, 365 (Tex.App.-Beaumont 2004, orig. proceeding); In re Anaheim Angels Baseball Club, Inc., 993 S.W.2d 875, 877-78 (Tex.App.-El Paso 1999, orig. proceeding [mand. denied]); BWI Cos., Inc. v. Beck, 910 S.W.2d 620, 622-23 (Tex.App.-Austin 1995, orig. proceeding [leave denied]).

Discussion

Arbitration is a creature of contract. In re Bunzl USA Inc., 155 S.W.3d 202, 209 (Tex.App.-El Paso 2004, orig. proceeding [mand. denied]). Therefore, a person cannot be compelled to arbitrate a dispute unless she has agreed to do so. Id. Although there is a strong presumption favoring arbitration, this presumption does not arise until the person seeking to compel arbitration proves that a valid arbitration agreement exists. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex.2003); Bunzl, 155 S.W.3d at 209.

In Halliburton, the Texas Supreme Court held that an employer may require an at-will employee to agree to arbitrate employment disputes as a condition of continued employment. See 80 S.W.3d at 572. To establish that an at-will employee agreed to arbitrate employment disputes, the employer must prove that the employee received unequivocal notice of the arbitration program. Id. at 568. An employee has unequivocal notice if she has been informed of the nature of the program and of the certainty of its imposition. Hathaway v. Gen’l Mills, Inc., 711 S.W.2d 227, 229 (Tex.1986). If she continues working after receiving unequivocal notice, the employee is deemed to have agreed to arbitration as a matter of law. Halliburton, 80 S.W.3d at 568. Essentially, the employee has two choices: “accept the [arbitration program] or quit.” Hathaway, 711 S.W.2d at 229; see also Halliburton, 80 S.W.3d at 572 (relying on Hathaway to conclude that it is not unconscionable to premise continued employment on acceptance of an arbitration program).

Dillard’s argues that it proved that Garcia received unequivocal notice of its arbitration program. Maese testified that on August 27, 2000, she conducted a meeting at which she explained the arbitration program to employees, informed the employees that continued employment would constitute acceptance of the arbitration program, and distributed written materials regarding the program. It is undisputed that Garcia was on the clock when the meeting occurred. Both Maese and McMurtrie testified that there would be no reason for Garcia to be on the clock at that time other than to attend the meeting. This evidence supports Dillard’s position. Garcia’s affidavit, however, refutes this evidence.

Although Garcia acknowledged in her affidavit that she attended a meeting at which arbitration was discussed, she stated that the meeting occurred in the fall and that the arbitration program was not the primary focus of the meeting. She was provided with a document that contained “a short explanation of the program to arbitrate claims,” but the document was not explained to her. According to Garcia, no one told her that if she continued working at Dillard’s she would be required to arbitrate disputes regarding termination of her employment. Garcia also denied that she received “The Dillard’s Fairness in Action Program or Rules of Arbitration,” which were attached to Dillard’s motion to compel. Maese and McMurtrie testified that these were the only documents that would have been presented to employees regarding the arbitration program.

Dillard’s argues that Garcia did not specifically deny receiving the acknowledgment form. It further argues that the “short explanation of the program to arbitrate claims” to which Garcia referred in her affidavit must be the acknowledgment form. However, the acknowledgment form and the Rules of Arbitration were two parts of the same document, and Garcia specifically denied receiving the Rules. Dillard’s admitted that Garcia’s personnel file did not contain a signed copy of the acknowledgment form. Combined with Maese’s testimony that she did not remember anyone at the meeting refusing to sign the form, this is some evidence that Garcia did not receive the form. Moreover, Garcia stated that she did not sign the document she was presented with because she did not agree to be bound by its terms, thus indicating that the document she was presented with indicated that it required a signature to be binding. In contrast, the acknowledgment form states that employees are deemed to have agreed to the Rules of Arbitration by virtue of continuing their employment. The signature blocks were on the form merely to acknowledge that the employee had received it, not to manifest assent to arbitration.

From all this evidence, the trial court could have reasonably concluded that Dillard’s failed to carry its burden of establishing that Garcia received unequivocal notice of the arbitration program. Therefore, the court did not abuse its discretion by refusing to compel arbitration.

Conclusion

For the reasons stated herein, the petition for writ of mandamus is denied.


source: Caselaw Access Project

author: BEA ANN SMITH, Justice.

license: Public Domain

text:
    GLOBAL SANTA FE CORPORATION, f/k/a Sante Fe International Corporation, Appellant, v. TEXAS PROPERTY AND CASUALTY INSURANCE GUARANTY ASSOCIATION, Appellee.
    No. 03-03-00659-CV.
    Court of Appeals of Texas, Austin.
    Dec. 2, 2004.

      Jeffrey L. Diamond, Jessica R. Jones, Galloway, Johnson, Tompkins, Burr & Smith, Houston, for appellant.
    Daniel W. Jordan, Jordan, Quinn & Car-mona, Austin, for appellee.
    Before Chief Justice LAW, Justices B.A SMITH and PEMBERTON.
   OPINION

BEA ANN SMITH, Justice.

The issue in this case is whether the phrase “paid on behalf of’ as it is used in article 21.28-C, section 11(b) of the insurance code requires the Texas Property and Casualty Insurance Guaranty Association (the Association) to apportion responsibility among multiple insureds covered under a single insurance policy prior to seeking recoupment from a net worth insured. The Association demanded payment of $300,000 from Global Santa Fe Corp. (Global) based on a contribution the Association made to settle a suit filed against Global after its insurance provider became impaired. When Global refused to pay, the Association filed suit. The trial court granted the Association’s motion for partial summary judgment and ordered Global to pay the Association. On appeal, Global contends that the trial court misconstrued the statute as there was no evidence of how much contribution was paid solely on behalf of Global because the Association failed to properly apportion its contribution among the multiple insureds. We agree with the trial court that the net worth recoupment statute does not require apportionment between multiple insureds.

BACKGROUND

In July 1999, Shane Hancock was injured when his motorcycle was struck by a vehicle driven by Albert Tortolano, an employee of Sphere Supply, Inc. (Sphere). Sphere is a wholly-owned subsidiary of Global. Tortolano’s vehicle was owned by Sphere and was covered by a commercial auto policy issued to Global by Reliance National Indemnity Company (Reliance). Hancock sued Tortolano, Sphere, and Global alleging that they were each liable for his damages from the accident. The Reliance auto policy covered Hancock’s claims.

In October 2001, Reliance was designated an impaired insurer, triggering the Association’s statutory obligation to pay its covered claims. Pedro Dilan, a claims examiner for the Association, determined that Hancock’s claims qualified as a covered claim under the Act and recommended that the Association contribute the maximum of $300,000 towards settlement in exchange for a full and final release of all claims against all of the named defendants. In a letter explaining the Association’s position, Mr. Dilan also advised that the Association would not waive its statutory right to seek net worth recoupment from Global. In October 2002, all parties agreed to a settlement. In all, Mr. Hancock received $800,000-$300,000 from the Association and $500,000 from Global.

In January 2003, the Association made a written demand upon Global for the $300,000 paid on Global’s behalf. Global refused to pay, claiming that the Association’s contribution was not paid solely on Global’s behalf when there were multiple insureds covered under its insurance policy that were named as defendants who also benefitted from the Association’s contributions. Global posited that because the settlement agreement did not apportion exactly how much of the Association’s contribution was paid on behalf of each insured, it was unclear how much, if any, was paid on behalf of Global. Global maintained that the Association could not recover any of its contribution unless it could produce evidence demonstrating what portion of the contribution was paid on behalf of Global.

The Association filed suit. The trial court granted the Association’s motion for partial summary judgment on its declaratory and statutory entitlement claims. The Association then dropped all other claims against Global, and the trial court entered a final judgment. This appeal followed.

STANDARD OF REVIEW

We review the trial court’s summary judgments de novo. See FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex.2000). When reviewing a motion for summary judgment, the court takes the nonmovant’s evidence as true, indulges every reasonable inference in favor of the nonmovant, and resolves all doubts in favor of the nonmovant. M.D. Anderson Hosp. v. Willrich, 28 S.W.3d 22, 23 (Tex.2000) (citing Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985)). Under Texas Rule of Civil Procedure 166a(c), the moving party bears the burden to show that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Haase v. Glazner, 62 S.W.3d 795, 797 (Tex.2001); Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex.1999). We affirm the summary judgment if any of the theories presented to the trial court and preserved for appellate review are meritorious. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex.1996).

DISCUSSION

The Guaranty Act is designed to provide a mechanism for the timely payment of covered claims under certain insurance policies while also providing a partial safety net to policy holders in the event of insurer insolvency. See Tex. Ins.Code Ann. art. 21.28-C, § 2 (West Supp.2004-05). To accomplish this, the Association calculates the amount of funds necessary to pay the covered claims of an impaired insurer and assesses all non-impaired insurers to cover these payments in an amount directly proportional to their percentage of net premiums written for the preceding calendar year. See id. § 8(a-e). In many instances the maximum total assessment will prove insufficient to pay all covered claims of an impaired insurer.

In 1992, the Guaranty Act was significantly overhauled and the net worth re-coupment statute was added as a means of addressing funding gaps inherent in the assessment system. The net worth re-coupment statute was modeled on similar statutes used successfully in other states. See House Ins. Comm., Bill Analysis, Tex. H.B. 62, 72d Leg., 2d C.S. (1992). The wording of the Texas statute was essentially the same as the one found in the Post-Assessment Property and Liability Insurance Guaranty Association Model Act, written by the National Association of Insurance Commissioners (the Commissioners). The Commissioners felt that a net worth recoupment provision provided more funds for those insureds in real need of protection and less for those insureds capable of self-insuring or making wise choices in purchasing insurance. See 1986 NAIC Proc. 1st Qtr., 431 (Guaranty Fund task force suggesting that large corporations are usually better equipped than individual consumers to evaluate financial health of insurance companies). Additionally, the Texas Legislature clearly understood that the net worth recoupment statute deprived large corporations of the Act’s protection. See Senate Econ. Dev. Comm., Bill Analysis, Tex. S.B. 391, 74th Leg., R.S. (1995) (stating that “corporations that paid millions in premiums were suddenly divested of the Act’s protection” as result of net worth recoupment statute).

While Global does not disagree that the net worth recoupment statute was designed to provide a mechanism for the Association to recover from a net worth insured, it contends that the phrase “paid on behalf of’ implies that in a situation where there are multiple insureds covered under a single policy, the Association must prove the exact dollar amount paid on behalf of each insured before seeking re-coupment. Thus, because the settlement agreement here did not apportion exactly how much of the Association’s contribution was paid on behalf of each insured, it was unclear how much, if any, was paid on behalf of Global. Therefore, Global avers that the Association was not entitled to recoupment, and that the summary judgment should have been denied.

Statutory construction is a question of law, which we review de novo. Bragg v. Edwards Aquifer Auth., 71 S.W.3d 729, 734 (Tex.2002). Our goal is to ascertain and give effect to the legislature’s intent for the provision in question. Cont’l Cas. Co. v. Downs, 81 S.W.3d 803, 805 (Tex.2002). In order to ascertain legislative intent, we first look to the plain and common meaning of the words used by the legislature. Tex. Gov’t Code Ann. §§ 311.011, 312.002 (West 1998) (mandating that “words and phrases that have acquired a technical or particular meaning ... shall be construed accordingly” and “if a word is connected with and used with reference to a particular trade or subject matter or is used as a word of art, the word shall have the meaning given by experts in the particular trade, subject matter, or art”); Fitzgerald v. Advanced Spine Fixation Sys., 996 S.W.2d 864, 866 (Tex.1999).

The phrase “paid on behalf of’ in the net worth recoupment statute is a term of art employed by the legislature to refer to a third-party claim. A third-party claim is one in which the insurer, as a representative of an insured, pays a third-party rather than paying the insured directly as it would do in a first-party claim. See Glossary — Common Insurance Terms, available at http:// www.tdi.state.tx.us/con-sumer/glossary.html (defining third-party loss as “a situation involving a person other than the insurer and the insured; i.e., a person making a liability claim against the insured”) (last modified Nov. 1, 2004). Acting on behalf of a person is acting as “a representative of or proxy for” that person. The Random House College Dictionary 122 (Revised ed. 1984). Thus, when an insurer pays a third-party claim, it does so on behalf of the insured.

The phrase “paid on behalf of’ does not refer to the amount of economic benefit an insured receives from the Association’s contribution; it refers to the fact that the Association has paid a covered claim to satisfy the liability of an insured to a third party claimant. Such a claim would have been paid by the insurer if it had remained solvent. Therefore, if the Association pays a covered claim that was filed against multiple insureds covered under a single policy then it does so on behalf of all the insureds. If the legislature intended the phrase to refer to the exact amount of economic benefit an individual insured received as a result of the Association’s contribution, it could have used the language “paid on behalf of that person exclusively.” It did not. We hold that the plain meaning of the phrase “paid on behalf of,” when used in the context of the insurance industry, does not indicate that the Association must apportion a contribution made to settle a single claim among multiple insureds before seeking recoupment from a net worth insured.

In this case, there is one covered claim that involves multiple insureds covered under a single policy. The Association paid $300,000 to Shane Hancock on behalf of all of the insureds to assist in settling the underlying litigation. However, only Global qualifies as a net worth insured from whom the Association could seek recoupment. See Act of May 16, 1995, 74th Leg., R.S., ch. 275, § 1, 1995 Tex. Gen. Laws 2616, 2616. Furthermore, Global was statutorily required to reimburse any amount paid by the Association on Global’s behalf, despite the fact that other, less wealthy insureds also benefitted from the Association’s contribution. See id. The Association properly demonstrated to the trial court that no issue of material fact existed with regard to the meaning of the phrase “paid on behalf of’ and that it was therefore entitled to judgment as a matter of law on its declaratory and statutory entitlement claims. We overrule Global’s contention and affirm the trial court's partial summary judgment.

CONCLUSION

Because we hold that the Association is not required to apportion a payment made on behalf of multiple insureds covered under a single insurance policy in order to seek recoupment from a net worth insured, we affirm the trial court’s judgment.

      . We will refer to article 21.28-C, section 11(b) as the "net worth recoupment statute” throughout this opinion. The net worth re-coupment statute grants to the Association the right to recover the amount of any covered claim paid on behalf of any insured whose net worth exceeds $50,000,000 and whose liability obligations to other persons are satisfied in whole or in part by payments made under the Texas Property and Casualty Insurance Guaranty Act (the Guaranty Act). See Act of May 16, 1995, 74th Leg., R.S., ch. 275, § 1, 1995 Tex. Gen. Laws 2616, 2616. We will refer to an insured who meets this description as a "net worth insured."

      . An insurance provider is impaired if it has been placed in temporary or permanent receivership or liquidation by a court based on a finding of insolvency or it has been placed in conservatorship after the insurance commissioner has determined it to be insolvent. Tex. Ins.Code Ann. art. 21.28-C, § 5(9) (West Supp.2004-05).

      . A "covered claim” is an unpaid claim of an insured or third-party liability claimant that arises out of and is within the coverage and not in excess of the applicable limits of an insurance policy covered by the Act. Tex. Ins.Code Ann. art. 21.28-C, § 5(8) (West Supp.2004-05). An individual covered claim is limited to $300,000. Id.

      .At the time the parties settled, the net worth recoupment statute stated:
      The Association is entitled to recover from the following persons the amount of any covered claim paid on behalf of that person under this Act:
      (1) any insured, other than an insured who is exempt from federal income tax under Section 501(a) of the Internal Revenue Code of 1986 by being described by Section 501(c)(3) of that code, whose net worth on December 31 of the year next preceding the date the insurer becomes an impaired insurer exceeds $50,000,000 and whose liability obligations to other persons under a policy or contract of insurance written, issued, and placed in force after January 1, 1992, are satisfied in whole or in part by payments made under this Act; and
      (2) any person who is an affiliate of the impaired insurer and whose liability obligations and liability obligations to other persons are satisfied in whole or in part by payments made under this Act.
      Act of May 16, 1995, 74th Leg., R.S., ch. 275, § 1, 1995 Tex. Gen. Laws 2616, 2616 (amended 2003) (current version Tex. Ins.Code Ann. art. 21.28-C, § 11(b) (West Supp.2004-05)).

      . Global does not dispute that the Association’s summary judgment evidence demonstrated that its net worth exceeded $50,000,000 on December 31, 2000, or that the settlement agreement satisfied its potential liability obligations to Shane Hancock in whole or in part.

      . Because we hold that Global was statutorily required to reimburse the $300,000 paid by the Association to Shane Hancock on Global’s behalf, we need not reach Global’s remaining issues. See Tex.R.App. P. 47.1 (court must address issues necessary to final disposition of appeal).


author: DAVID PURYEAR, Justice.

text:
    TEXAS DEPARTMENT OF CRIMINAL JUSTICE, Appellant, v. Edward McELYEA, Appellee.
    No. 03-03-00689-CV.
    Court of Appeals of Texas, Austin.
    Dec. 2, 2004.

      Russ W. Harris, Asst. Atty. Gen., Austin, for appellant.
    Douglas D. Turek, The Turek Law Firm, The Woodlands, for appellee.
    Before Chief Justice LAW, Justices PATTERSON and PURYEAR.
   OPINION

DAVID PURYEAR, Justice.

Appellant, Texas Department of Criminal Justice (“TDCJ”), brings this interlocutory appeal from the denial of its plea to the jurisdiction in a case brought by its employee, Edward McElyea, for damages under the Texas Whistleblower Act. Tex. Gov’t Code Ann. §§ 554.001-.009 (West 2004). The TDCJ asserted that McElyea’s filing in the district court was untimely and faded to comply with the Whistleblower Act. The trial court denied the plea to the jurisdiction. The TDCJ argues in two points of error on appeal that: (1) McE-lyea failed to file suit within the statutory time limits, and (2) that failure deprives the trial court of subject matter jurisdiction, making the TDCJ’s plea to the jurisdiction a proper avenue to challenge jurisdiction.

Because the trial court properly determined on the evidence before it that McE-lyea’s filing was timely and the pleadings in plaintiffs petition were sufficient to confer jurisdiction on the trial court, we affirm the order of the trial court denying the plea to the jurisdiction.

Background

McElyea worked for the TDCJ, a state agency, as one of four Multi-Region Administrators from October 1994 to May 2001. In early 2001, McElyea reported violations of Texas law and TDCJ policy and filed written complaints. In May 2001, McElyea learned that the TDCJ would eliminate his position and reorganize the four positions into two. Although he applied, McElyea did not receive either of the two new positions, nor certain other positions he sought.

McElyea pursued a grievance through all three levels of the TDCJ grievance process, claiming that he had suffered adverse employment actions because of his reports of violations of law to appropriate law enforcement authorities. The TDCJ denied the grievance in a letter dated October 8, 2001, which was sent to McElyea’s former address in Huntsville. The TDCJ presented no evidence to show the date it actually mailed the letter. The United States Postal Service forwarded the letter to McElyea’s new address in Waco, where it arrived on October 22, 2001. McElyea filed this suit on November 15, 2001, twenty-four days after receipt of the letter, and thirty-eight days after the date appearing on the letter heading.

The TDCJ filed a plea to the jurisdiction, arguing that the trial court had no subject matter jurisdiction over the 2001 claim because McElyea did not comply with the Whistleblower Act’s thirty-day deadline for filing. See Tex. Gov’t Code Ann. § 554.006(d)(1) (West 2004). The trial court denied the plea to the jurisdiction and the TDCJ filed this interlocutory appeal.

Discussion

The TDCJ’s plea to the jurisdiction challenges the trial court’s authority to determine this cause of action. Bland Indep. Sch. Dist. v. Blue, 84 S.W.3d 547, 554 (Tex.2000). To invoke a court’s authority, a plaintiff must allege facts that affirmatively demonstrate that the court has jurisdiction to hear the cause. Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004); Texas Ass’n of Bus. v. Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993). To prevail on a plea to the jurisdiction, the defendant must show an incurable jurisdictional defect apparent from the face of the pleadings, making it impossible for any amendment of the plaintiffs petition to confer jurisdiction on the trial court. Bybee v. Fireman’s Fund Ins. Co., 160 Tex. 429, 331 S.W.2d 910, 914 (1960); City of San Angelo v. Smith, 69 S.W.3d 303, 305 (Tex.App.-Austin 2002, pet. denied). Courts must consider evidence when necessary to decide jurisdictional issues. Miranda, 133 S.W.3d at 221; Texas Natural Res. Conservation Comm’n v. White, 46 S.W.3d 864, 868 (Tex.2001); Blue, 34 S.W.3d at 554-55. If the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, a trial court rules on the plea to the jurisdiction as a matter of law. Miranda, 133 S.W.3d at 228.

We review the denial of a plea to the jurisdiction de novo. Id.; Texas Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002) (citing Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998)). For purposes of this review, we liberally construe the pleadings in favor of jurisdiction, looking to the plaintiffs intent. Miranda, 133 S.W.3d at 226; Smith, 69 S.W.3d at 306.

This suit is a statutory cause of action against a state agency, and therefore the plaintiff must comply with certain statutory prerequisites in order for the Whistleblower Act’s waiver of sovereign immunity to grant the trial court jurisdiction to hear the case. See Texas Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.1999). A public employee must exhaust the grievance or appeal procedures of the state or local government employer before suing under the Whistleblower Act. Tex. Gov’t Code Ann. § 554.006(a). If the employer does not render a final decision before the 61st day following the employee’s initiation of the process, the employee may terminate the procedures and sue within the time remaining under Section 554.005, or the employee may elect to exhaust the applicable procedures, in which event he must sue, if at all, “not later than the 30th day after the date those procedures are exhausted to obtain relief.” Id. § 554.006(d)(1).

McElyea properly invoked the trial court’s jurisdiction by alleging facts demonstrating that the court had jurisdiction to hear the case. See Miranda, 133 S.W.3d at 226; Air Control Bd., 852 S.W.2d at 446. Specifically, his second amended original petition alleges that all conditions precedent to the suit had occurred, including exhaustion of the TDCJ grievance procedure and filing suit on November 15, less than thirty days after October 22, the date upon which the TDCJ notified him that his grievance was denied. See Tex. Gov’t Code Ann. § 554.006(d)(1). When the TDCJ challenged this jurisdictional fact in the trial court, McElyea substantiated the date of receipt of the letter. See Miranda, 133 S.W.3d at 227 (directing courts to consider relevant evidence submitted by the parties if a plea to the jurisdiction challenges existence of jurisdictional facts).

The TDCJ asserts that this fact does not affirmatively demonstrate that the court has jurisdiction. The TDCJ argues that even though McElyea received the notice on October 22, the cause of action accrued on October 8, the date appearing on the heading of its letter, and therefore McE-lyea’s filing suit on November 15 was eight days too late. The TDCJ argues that, by failing to timely file, McElyea failed to comply with the statutory guidelines that would allow the Whistleblower Act’s waiver of sovereign immunity to apply, leaving the court without jurisdiction.

The statute provides that the thirty-day time period begins to run once the grievance procedures are “exhausted.” Tex. Gov’t Code Ann. § 554.006(d)(1). The TDCJ relies on its own guidelines to determine when its procedures are exhausted. According to the TDCJ grievance policy, the “Step Three response shall be given to the grievant in person or mailed, via certified mail, return receipt requested, to the grievant,” and the decision is “final, and the grievance procedure is complete once the grievance has been responded to at this step.” The TDCJ asserts that this means the procedure is final and complete when the TDCJ personally delivers or mails a copy of the response, not, as McE-lyea argues, when the grievant receives the response. In its brief on appeal, the TDCJ asserts that “[t]he grievance procedure does not make the decision of the responding authority final until such time as the grievant is notified by mail or in person of the decision.”

However, even if mailing starts the thirty-day period, in this case, the TDCJ presented no evidence of when it mailed the letter. Therefore, even assuming that the date of mailing is the date that the grievance process is exhausted, the evidence does not support a finding that the period began on October 8.

The TDCJ does not expressly state that it may “respond to” a grievance, render the process final, and thus begin the running of a grievant’s thirty-day window to sue merely by generating a decision in its offices without notifying the grievant at all. However, the TDCJ does ask us to hold that, as a matter of law, the time period must be counted from October 8, without evidence that the letter was actually mailed on that date. Where we have no reference to the date other than its appearance on the heading of the TDCJ’s letter, such a ruling would allow the TDCJ to declare grievance procedures final (and unilaterally trigger the tolling of the response time) merely by the date on a response letter. This outcome would contradict the TDCJ’s own policy and defeat the intent of the Whistleblower Act. See Feinblatt, 82 S.W.3d at 522 (listing protection of public employees among primary purposes of Whistleblower Act); Castleberry Indep. Sch. Dist. v. Doe, 35 S.W.3d 777, 782 (Tex.App.-Fort Worth 2001, pet. dism’d w.o.j.) (noting that Whistleblower Act’s requirement of invoking grievance procedures was not intended to penalize employees).

Although it is quite possible that the letter denying McElyea’s grievance was mailed on October 8, there is no evidence of that fact, and trial courts must decide jurisdictional questions on the evidence before them. See Miranda, 133 S.W.3d at 226; Blue, 34 S.W.3d at 554-55. In determining when the grievance procedures were exhausted, the trial court was bound to construe the plaintiff’s allegations liberally and in favor of jurisdiction. Miranda, 133 S.W.3d at 226; Smith, 69 S.W.3d at 306. Because the evidence showed a date of filing, November 15, and only one of the two alleged dates of notification, October 22, it did not raise a fact question on the jurisdictional issue, and the trial court did not err in ruling that McElyea complied with the statutory requirement of filing within thirty days. See Miranda, 133 S.W.3d at 228. McElyea complied with the statute and the Whistle-blower Act provided the necessary waiver of sovereign immunity and granted the trial court jurisdiction. See Jones, 8 S.W.3d at 638. Accordingly, we overrule the TDCJ’s points. The court properly denied the TDCJ’s plea to the jurisdiction.

CONCLUSION

The trial court properly decided that there was no incurable defect on the face of plaintiffs pleadings that would deprive it of jurisdiction. We affirm the denial of the TDCJ’s plea to the jurisdiction.

      . In early 2002, the TDCJ also rejected McE-lyea's application for a position as an Internal Affairs Regional Manager. McElyea again proceeded through all three levels of the grievance process, and, after the TDCJ denied the grievance, he amended his petition in this cause to include a complaint stemming from that grievance. The TDCJ does not challenge the trial court’s jurisdiction over the 2002 claim, and we do not decide it.

      . This was the address the TDCJ had on file for McElyea.

      . "Except as provided by Section 554.006, a public employee ... must sue not later than the 90th day after the date on which the alleged violation of this chapter: (1) occurred; or (2) was discovered ...” Tex. Gov’t Code Ann. § 554.005 (West 2004).


author: JOHN HILL, Chief Justice (Retired).

text:
    Julius Gilbert O’NEAL, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 08-03-00026-CR.
    Court of Appeals of Texas, El Paso.
    Dec. 2, 2004.
    Adam L. Seidel, Adam L. Seidel, P.C., Dallas, for Appellant.
    William T. Hill, Dist. Atty. of Dallas County, for State.
    Before Panel No. 5 HILL, C.J. (Retired), McCLURE, and CHEW, JJ.
   MEMORANDUM OPINION

JOHN HILL, Chief Justice (Retired).

Julius Gilbert O’Neal, Jr. appeals his convictions by a jury for the offenses of sexual assault and sexual assault of a child, upon his pleas of guilty, after he had initially plead not guilty. The trial court assessed his punishment at 40 years’ confinement in the Texas Department of Corrections, Institutional Division, for his conviction of the offense of sexual assault of a child, and at 20 years’ confinement in the Texas Department of Corrections, Institutional Division, for his conviction of the offense of sexual assault. He contends in two issues that the trial court erred by assessing his sentence without first obtaining a written jury waiver signed by him and that the trial court abused its discretion by failing to vacate his guilty plea to the aggravated sexual assault offense after he asserted his innocence during the sentencing hearing. We affirm.

O’Neal contends in Issue One that the trial court erred in assessing sentence without first obtaining a written jury waiver signed by him. The punishment of a defendant who pleads guilty shall be assessed by a jury, unless the defendant has waived his or her right to trial by jury in accordance with Articles 1.13 or 37.07 of the Texas Code of Criminal Procedure. Tex.Code CRIM. Proc. ANN. art. 26.14. Article 37.07 provides that if a finding of guilty is returned, the defendant may, with the consent of the attorney for the State, change his or her election of one who assesses the punishment. Tex.Code Crim. Proo. Ann. art. 37.07, § 2(b). In this case, O’Neal changed his election of who was to assess punishment from the jury to the trial court. He did so, and the State’s attorney consented to the change. The change was made at the time O’Neal changed his plea from not guilty to guilty, with his understanding that the trial court would instruct the jury to find him guilty of the offenses. We hold that under this circumstance, a written jury waiver was not required because O’Neal waived his right to have the jury assess his punishment, with the consent of the State’s attorney, all in accordance with article 37.07, section 2(b).

O’Neal insists that articles 26.14 and 1.13 of the Texas Code of Criminal Procedure require that his waiver of a jury be in writing. We have already noted that article 26.14 indicates that the waiver must be in accordance with article 1.13 or 37.07. Inasmuch as O’Neal’s waiver was in accordance with article 37.07, section 2(b), the fact that it was not in accordance with article 1.13 is of no consequence, as shown by the wording in article 26.14 that the waiver is to be in accordance with article 1.13 or article 37.07. Tex.Code Crim. Proc. Aostn. art. 26.14. (Emphasis added). We overrule Issue One.

O’Neal urges in Issue Two that the trial court erred by failing to vacate his guilty plea as to the aggravated sexual assault offense after he asserted his innocence during the sentencing hearing. As previously noted, when O’Neal changed his plea from not guilty to guilty, the trial court instructed the jury to find O’Neal guilty, which it did. Subsequently, at his sentencing hearing before the trial court, O’Neal told the court that his involvement with his daughter was done from a fatherly point of view, to aid her with a rash and an “ingrowing” hair. He said he showed her how to masturbate after he told her that her masturbation was extremely excessive and she replied that she did not know how to do it. He insisted that his daughter’s testimony about oral copulation and his having sex with her was a he.

After the jury found O’Neal guilty, the trial court ordered a pre-sentence investigation report and subsequently pronounced O’Neal’s sentence, all as provided in article 37.07, section 3(e) of the Texas Code of Criminal Procedure. Tex.Code Crim. Proc. Ann. art. 37.07, § 3(e). O’Neal asserts that the trial court abused its discretion by not sua sponte vacating his guilty plea when O’Neal asserted his innocence of the offense of sexual assault of a child at the sentencing hearing.

O’Neal never requested that his plea of guilty be withdrawn after his exculpatory statements that he made during the sentencing hearing. The jury that had found him guilty had been discharged. Had O’Neal requested that his guilty plea be withdrawn, the trial court would have been acting within its discretion to deny the request because O’Neal’s request would have been untimely. See DeVary v. State, 615 S.W.2d 739, 740 (Tex.Crim.App.1981). It reasonably follows that where the defendant presents exculpatory evidence at a time when a request for withdrawal of his or her plea would be untimely, the trial court does not have a duty sua sponte to withdraw the defendant’s plea of guilty.

O’Neal principally relies upon the cases of Griffin v. State, 703 S.W.2d 193, 197 (Tex.Crim.App.1986) (op. on reh’g); Rivera v. State, 952 S.W.2d 34, 35 (Tex.App.-San Antonio 1997, no pet.); and Sullivan v. State, 573 S.W.2d 1, 1-3 (Tex.Crim.App.1978). We have examined all of these cases and find that none holds that the trial court has a duty to sua sponte withdraw a defendant’s plea of guilty where exculpatory evidence is presented at a sentencing hearing held after the defendant has plead guilty to a jury and been found guilty by that jury. We overrule Issue Two.

The judgments are affirmed.

HILL, C.J. (Retired) sitting by assignment.


author: RICHARD BARAJAS, Chief Justice.

text:
    UNION PACIFIC RAILROAD COMPANY, Appellant, v. Daniel R. LOA, Appellee.
    No. 08-02-00076-CV.
    Court of Appeals of Texas, El Paso.
    Dec. 2, 2004.

      Joseph L. Hood Jr., Scott, Hulse, Marshall, Feuille, Finger & Thurmond, El Paso, for Appellant.
    Enrique Moreno, Moreno and Fry, El Paso, for Appellee.
    Before Panel No. 3 BARAJAS, C.J., LARSEN, and CHEW, JJ.
   OPINION

RICHARD BARAJAS, Chief Justice.

This is an appeal from a jury verdict in a case arising under the Texas Commission on Human Rights Act (“TCHRA”) and claiming damages for the tort of intentional infliction of emotional distress. The jury awarded $800,000 in compensatory damages, $6,000,000 in punitive damages and $460,000 in attorney’s fees. The trial court entered judgment in the amount of $800,000 compensatory damages, remitted the punitive damages award to $750,000, pursuant to Texas Civil Practice and Remedies Code and $460,000 in attorney’s fees. The Appellant raised six issues on appeal, challenging the legal and factual sufficiency of the evidence to support the jury’s answers to the questions submitted, the amount of damages awarded by the trial court in the final judgment, and the award of attorney’s fees. For the reasons stated, we affirm in part, reform in part, and remand in part.

I. ISSUES SUBMITTED ON APPEAL

Appellant has submitted six issues on appeal. In Issue Nos. One, Two, Three and Four, Appellant complains that the evidence supporting the jury’s answers regarding workplace harassment under the TCHRA, the claimed tort of intentional infliction of emotional distress, the punitive damages award and the compensatory damages award is legally and factually insufficient to support the findings. Issue No. Five asserts that the court committed error by allowing the jury to determine the amount of attorney’s fees recoverable by Appellee and that the evidence is legally and factually insufficient to support the award. Issue No. Six complains that the judgment as entered impermissibly awards Appellee a double recovery, allowing damages under both causes of action asserted below.

II. SUMMARY OF THE EVIDENCE

Appellee, Daniel R. Loa, is employed in the maintenance department of Appellant’s, Union Pacific Railroad Company (“Union Pacific”), locomotive facility in El Paso, Texas. Loa has worked for Union Pacific or its predecessor since 1976, and has been at the El Paso facility since 1989. In 1998, Kevin Goewey became one of Loa’s immediate supervisors. Shortly thereafter, Loa began to experience harassment perpetrated by Goewey. Goewey exhibited hostile and rude behavior, screamed and yelled at Loa and frequently cursed at him. Goewey often called Loa and other Mexiean-American employees “wetbacks,” “beaners,” and “f — ing wetbacks” regularly using derogatory comments such as, “Mexicans aren’t worth anything” and “Mexicans are lazy bums.”

Goewey made these remarks almost daily during the time that Goewey was Loa’s supervisor. In addition, Goewey made various threats regarding Loa’s employment status, including threatening to contact Stephen Slaught, the facility manager, and write Loa up to get rid of him. Loa was afraid of Goewey and feared that Goewey would strike or assault him.

Other Union Pacific employees also experienced problems with Goewey. Several witnesses testified to Goewey’s frequent and regular use of derogatory terms such as “wetback,” “Mexican wetback,” “lazy Mexicans,” “f — ing Mexicans,” and “crazy Mexican wetbacks.” Jose Madrid, a coworker supervised by Goewey, stated that Goewey’s conduct was “a regular everyday thing” and that such comments were made “many times.” Madrid testified that Goewey’s comments and insults occurred throughout 1998. He reported his problems with Goewey to the facility manager, Stephen Slaught, on an almost weekly basis throughout 1998. Slaught assured Madrid that he would talk to Goewey and “take care of it.” Despite Slaught’s assurances, the problems with Goewey continued.

R.C. De La Torre also experienced Goewey’s harassment. In 1998, he was the local chairman of the Fireman and Boiler’s Union and was Loa’s union representative. On one occasion, Goewey asked De La Torre, “why are you Mexicans so lazy?” De La Torre also heard Goewey make derogatory statements about older employees and testified that Goewey seemed to pick on older employees that did not speak English very well or those that “couldn’t defend themselves.” Along with the other local chairmen of the union, De La Torre brought the problems with Goewey to the attention of Slaught prior to December 1998.

The Coalition of Union Chairmans (“the Coalition”) had discussions with Slaught in 1998 in an effort to address problems with supervisors and mistreatment of employees. One of the specific problems the Coalition raised with Slaught was Goew-ey’s use of racial and ethnic slurs. Slaught again promised to talk to Goewey and address the situation. On December 10, 1998 as a result of their frustration due to Union Pacific’s inaction, the Coalition wrote a letter to Slaught signed by all the local union chairmen. The letter specifically addressed Goewey’s use of racial and ethnic slurs and referenced the Coalition’s prior complaints.

Slaught claimed that the letter was the first time he became aware of complaints against Goewey for making racial and ethnic slurs. Slaught met with Goewey in December 1998, to discuss the matters raised in the Coalition’s letter. Goewey was shown a copy of the letter and he responded that “all the allegations were false.” Slaught did not immediately conduct a formal investigation. Slaught did not interview any of the complaining employees and did not attempt to resolve the conflicting statements concerning the racial and ethnic slurs. Slaught decided that Goewey would receive a “manager’s conference letter,” also known as a reprimand, would write a letter of apology, and would be sent to additional training.

The reprimand was for “poor communication skills” and simply stated that Goew-ey needed to improve his communication and supervision skills. Goewey’s letter of apology was addressed to the chairmans of the Coalition. Goewey apologized for “poor supervisory skills” and for being “overzealous,” although he believed that being overzealous was “a good thing.” Finally, Goewey was sent to “delta training,” which he had previously attended. Goew-ey testified that he could not remember if EEO policies were covered in the training, but that the training dealt with “communication skills.”

The Coalition was not satisfied with the way Slaught handled the situation. Expecting that Slaught would have, at a minimum, interviewed the complaining witnesses, the Coalition continued to complain about Goewey and finally demanded a meeting. Slaught failed to attend the meeting, which the Coalition considered further evidence of Slaught’s lack of commitment to addressing the problems. By February 1999, unsatisfied with Union Pacific’s response to Goewey’s conduct, five employees filed complaints with the Equal Employment Opportunity Commission (“EEOC”). Each complaint alleged national origin discrimination and a pattern of continuing discrimination. Union Pacific filed a separate response to each complaint and in each case, concluded that the allegations were unfounded.

After the EEOC complaints were filed, several employees, including Loa, alleged that they experienced retaliation. The workers testified that they had come under increased scrutiny from Goewey and Slaught.

In November 1999, another charge of discrimination based on Goewey’s conduct was filed with the EEOC. Ismael Martinez, who had been interviewed by an EEOC investigator in connection with the previous complaints, filed a complaint. Martinez stated that Goewey had called him an “f-word Puerto Rican.” After speaking with the investigator, Martinez testified that Goewey did not like him and that he (Martinez) was subsequently denied a foreman’s position.

Despite the complaints against him and only three months after their filing, Goew-ey was promoted by Union Pacific to the position of locomotive supervisor. Goewey was given authority over Loa’s supervisor, so he still had some authority over and contact with Loa and the other employees. The employees who had filed complaints felt disbelief, a sense of betrayal, and considered the promotion a “slap in the face.”

In December 1999, Loa filed suit against Union Pacific and Goewey. The petition alleged unlawful discrimination pursuant to Chapter 21 of the Texas Labor Code requesting compensatory and punitive damages and injunctive relief. The petition also included a claim for intentional infliction of emotional distress. The jury found that Loa had been subjected to harassment based on his national origin by Union Pacific. The jury also found that Union Pacific had not exercised reasonable care to prevent and promptly correct any harassing behavior and that Loa had not unreasonably failed to take advantage of preventative or corrective opportunities. The jury found that Goewey had intentionally inflicted severe emotional distress on Loa and that Goewey’s acts were in the scope of his employment and were ratified by Union Pacific. The jury awarded $800,000 in compensatory damages. The jury found that Union Pacific’s conduct was done with malice and that Union Pacific had not made a good faith effort to prevent harassment and awarded $6,000,000 in exemplary damages. Finally, the jury awarded attorney’s fees for trial and in the event of an appeal.

The trial court entered a judgment awarding $800,000 in compensatory damages, but limited the punitive damages to $750,000. The trial court awarded $400,000 for attorney’s fees and a conditional amount for appeal. The court also entered injunctive and equitable relief enjoining Union Pacific and Goewey from further retaliation or discrimination against Loa. Because Goewey had filed for bankruptcy, claims against him were severed. Union Pacific’s Motion for New Trial and Conditional Motion to Modify the Judgment and Motion for Remittitur was overruled by operation of law. This appeal by Union Pacific follows.

III. DISCUSSION

Appellant’s first five issues attack the legal and factual sufficiency of the evidence and the award of attorney’s fees. We begin with a discussion of the legal and factual sufficiency challenges, followed by a discussion of the attorney’s fees issue.

A. Legal and Factual Sufficiency Standard of Review

A “no evidence” or legal insufficiency point is a question of law which challenges the legal sufficiency of the evidence to support a particular fact finding. There are basically two separate “no evidence” claims. When the party having the burden of proof suffers an unfavorable finding, the point of error challenging the legal sufficiency of the evidence should be that the fact or issue was established “as a matter of law.” When the party "without the burden of proof suffers an unfavorable finding, the challenge on appeal is one of “no evidence to support the finding.” See Creative Manufacturing, Inc. v. Unik, 726 S.W.2d 207, 210 (Tex.App.-Fort Worth 1987, no writ). The standard of review requires a determination by the appellate court as to whether, considering only the evidence and inferences that support a factual finding in favor of the party having the burden of proof, in a light most favorable to such findings, and disregarding all evidence and inferences to the contrary, there is any probative evidence which supports the finding. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965); see Terminix Intern., Inc. v. Lucci, 670 S.W.2d 657, 662 (Tex.App.-San Antonio 1984, writ ref'd n.r.e.); see also Dayton Hudson Corp. v. Altus, 715 S.W.2d 670, 672 (Tex.App.Houston [1st Dist.] 1986, writ ref'd n.r.e.). If more than a scintilla of evidence supports the finding, the “no evidence” point fails. Tseo v. Midland Am. Bank, 893 S.W.2d 23, 25 (Tex.App.-El Paso 1994, writ denied); Hallmark v. Hand, 885 S.W.2d 471, 474 (Tex.App.-El Paso 1994, writ denied).

“Insufficient evidence” or factual insufficiency involves a finding that is so against the great weight and preponderance of the evidence as to be manifestly wrong. When the party having the burden of proof complains of an unfavorable finding, the point of error should allege that the findings “are against the great weight and preponderance of the evidence.” The “insufficient evidence” point of error is appropriate only when the party without the burden of proof on an issue complains of the court’s findings. See Neily v. Arron, 724 S.W.2d 908, 912 (Tex.App.-Fort Worth 1987, no writ).

The test for factual insufficiency points is set forth in In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). In reviewing a point of error asserting that a finding is against the great weight and preponderance of the evidence, we must consider all of the evidence, both the evidence which tends to prove the existence of a vital fact, as well as evidence which tends to disprove its existence. It is for the jury to determine the weight to be given to the testimony and to resolve any conflicts in the evidence. Carrasco v. Goatcher, 623 S.W.2d 769, 772 (Tex.App.-El Paso 1981, no writ). The jury’s finding should be sustained if there is some probative evidence to support it and provided it is not against the great weight and preponderance of the evidence. Id. The parlance used by the courts of appeals is that such a finding “shocks the conscience” or that it is “manifestly unjust,” limited by such phrases as “the jury’s determination is usually regarded as conclusive when the evidence is conflicting,” “we cannot substitute our conclusions for those of the jury,” and “it is the province of the jury to pass on the weight or credibility of a witness’s testimony.” Kimsey v. Kimsey, 965 S.W.2d 690, 700 (Tex.App.-El Paso 1998, pet. denied); Beall v. Ditmore, 867 S.W.2d 791, 795 (Tex.App.-El Paso 1993, writ denied). Thus, we cannot substitute our judgment for that of the fact finder even if we find a fact contrary to that found by the jury, provided the jury finding is supported by probative evidence and is not against the great weight and preponderance of the evidence. If, however, the verdict is so contrary to the great weight and preponderance of the evidence as to be manifestly unjust, the point should be sustained.

In Issue No. One, Appellant argues that the evidence is legally and factually insufficient to support Loa’s claim for workplace harassment under the Act. The jury answered “Yes” to the following questions relating to harassment:

Question No. 1:

Was Daniel Loa subjected to harassment based on his national origin by Union Pacific Railroad Company ?
“Harassment based on national origin” occurred if:
1. Daniel Loa was subjected to ethnic ridicule or insult based on Daniel Loa’s national origin that was unwelcome and undesirable and offensive to Daniel Loa;
2. the harassment complained of altered a term, condition, or privilege of employment; and
3. Union Pacific Railroad Company knew or should have known of the harassment and Union Pacific Railroad Company failed to take prompt, remedial action to eliminate the harassment.
Harassment alters a term, condition, or privilege of employment when a reasonable person would find that the harassment created an abusive working environment. In determining whether an abusive working environment existed, consider the following: the frequency of the conduct; its severity; whether it was physically threatening or humiliating or a mere offensive utterance; and whether it unreasonably interferes with the employee’s work performance.

Question No. 2:

Was Daniel Loa subjected to harassment based on his national origin by Union Pacific Railroad Company ? “Harassment based on national origin” occurred if:
1. Daniel Loa was subjected to ethnic ridicule or insult based on Daniel Loa’s national origin that was unwelcome and undesirable and offensive to Daniel Loa;
2. the harassment complained of altered a term, condition, or privilege of employment; and
3. the conduct was committed by a supervisor who had authority over hiring, advancement, dismissals, discipline, or other employment decisions affecting Daniel Loa.
Harassment alters a term, condition, or privilege of employment when a reasonable person would find that the harassment created an abusive working environment. In determining whether an abusive working environment existed, consider the following: the frequency of the conduct; its severity; whether it was physically threatening or humiliating or a mere offensive utterance; and whether it unreasonably interferes with the employee’s work performance.

First, we examine only the evidence and inferences that support a factual finding in favor of the party having the burden of proof. The jury heard testimony from eight witnesses concerning Goew-ey’s conduct. The following slurs and comments were attributed to Goewey: “wetback,” “Mexican wetback,” “f — ing wetback,” “beaner,” “f — ing Mexican,” “lazy Mexican,” “lazies,” “crazy Mexican wetback,” “f — ing lazy wetback,” “lazy f — ing Mexican,” “God-damned f — ing Mexican,” “God-damned lazy son-of-a-bitch Mexicans,” “God-damned lazy Mexicans,” “Mexicans aren’t worth anything,” “I want to get rid of all of the Mexicans,” “Why are Mexicans so lazy,” and “Mexicans are lazy bums.” The testimony established that Goewey’s conduct was routine, occurring almost daily throughout 1998. There was testimony that Goewey’s conduct was “a regular, everyday thing,” and that he made the comments “many times.” Loa testified that the conduct lasted for most of the time that Goewey was his supervisor.

Goewey also frequently yelled at Loa from a close distance using curse words. Goewey threatened to go to Stephen Slaught, the facility manager, and write Loa up. Goewey threatened to get rid of Loa, stating that he did not need a complaint to get him out of there. Loa was afraid of Goewey and feared that Goewey would strike or assault him. Loa testified that he felt “afraid” and “scared” and that he lost enjoyment in his work.

In examining only the evidence that supports the jury’s findings, we find there is more than a scintilla to support Loa’s claim for workplace harassment under the Act. Union Pacific’s no evidence point fails and this portion of Issue No. One is overruled.

Next, we consider all of the evidence presented, both the evidence which tends to prove the existence of a vital fact, as well as evidence which tends to disprove its existence. Goewey testified that all of the employees were lying. Goewey was shown a copy of the Coalition’s letter and he told Slaught that “all the allegations were false.” The cumulative evidence considered by the jury is legally sufficient to support the verdict rendered. We cannot say that the decision reached by the jury is so against the great weight and preponderance of the evidence as to be manifestly unjust or against the great weight and preponderance of the evidence. Issue No. One is overruled in its entirety.

In Issue No. Two, Appellant asserts that the evidence is legally and factually insufficient to support Loa’s claim for intentional infliction of emotional distress. To recover damages for intentional infliction of emotional distress, a plaintiff must prove: (1) the defendant acted intentionally or recklessly, (2) the conduct was extreme and outrageous, (3) the actions of the defendant caused the plaintiff emotional distress, and (4) the emotional distress suffered was severe. GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605, 611 (Tex.1999); Dillard Department Stores, Inc. v. Gonzales, 72 S.W.3d 398, 404 (Tex.App.-El Paso 2002, pet. denied). Rude behavior does not equate to outrageousness, and behavior is not outrageous simply because it is tortious. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex.1994). “Severe emotional distress” means distress so severe that no reasonable person could be expected to endure it without undergoing unreasonable suffering. Benavides v. Moore, 848 S.W.2d 190,195 (Tex.App.-Corpus Christi 1992, writ denied). Any party seeking recovery for mental anguish, even when advancing a cause of action that does not require the “severe” damages required for intentional infliction of emotional distress, must prove more than “mere worry, anxiety, vexation, embarrassment, or anger.” Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex.1995). However, proof of a physical manifestation of the emotional distress is not required. Krish-nan v. Sepulveda, 916 S.W.2d 478, 487 n. 3 (Tex.1995).

A defendant acts intentionally when he or she either desires to inflict emotional distress or knows that such distress is substantially certain to result from his or her conduct. Tidelands Auto. Club v. Walters, 699 S.W.2d 939, 940-41 (Tex. App.-Beaumont 1985, writ ref'd n.r.e.). A defendant acts recklessly when the defendant “ ‘knows or has reason to know ... of facts which create a high degree of risk of ... harm to another, and deliberately proceeds to act, or fails to act, in conscious disregard of, or indifference to that risk.’ ” Twyman v. Twyman, 855 S.W.2d 619, 624 (Tex.1993); see also Tiller v. McLure, 121 S.W.3d 709 (Tex.2003).

In reviewing Loa’s action for intentional infliction of emotional distress against his employer, we are guided by the Texas Supreme Court case of GTE Southwest v. Bruce, 998 S.W.2d 605 (Tex.1999). There, several employees brought suit against GTE based upon the behavior of their supervisor. Initially, the Supreme Court discussed emotional distress claims in the employment context, adopting a strict approach to emotional distress claims arising in the workplace, explaining that to properly manage a business, an employer must be able to supervise, review, criticize, demote, transfer, and discipline employees, and “[although many of these acts are necessarily unpleasant for the employee, an employer must have latitude to exercise these rights in a permissible way, even though emotional distress results.” Id. at 612. Even where a supervisor abuses a position of power over an employee, the employer will not be liable for mere insults, indignities, or annoyances that are not extreme and outrageous. Id. at 617.

The court nevertheless noted that liability may arise when one in a position of authority engages in repeated or ongoing harassment of employees, where the cumulative quality and quantity of the harassment is extreme and outrageous. When such repeated or ongoing harassment is alleged, the offensive conduct is evaluated as a whole. Id. at 616. The court then observed that it is a question of law for the court, in the first instance, to decide if the defendant’s conduct is so extreme and outrageous as to permit recovery. Id. It found that the conduct complained of by the Bruce plaintiffs was indeed extreme and outrageous. The supervisor’s conduct there included using the harshest, most vulgar obscenities; repeatedly physically and verbally threatening and terrorizing employees; “charging” employees by rushing up to them with balled fists and lowered head, stopping uncomfortably close to them while yelling; pounding fists; flying into a rage because one employee left her purse on a chair and another her umbrella on a filing cabinet; repeatedly threatening to terminate employees without justification; forcing an employee to stand in front of him for as long as thirty minutes while he reviewed papers and talked on the phone; screaming when he discovered a spot on the carpet, forcing an employee to clean spots on her hands and knees; forcing employees to vacuum nightly although GTE employed a janitorial service for that purpose; and forcing an employee to wear a post-it on her shirt that said, “don’t forget your paperwork.” Id. at 613-14. In finding this conduct rose to the level of intentional infliction of emotion distress, the Supreme Court held:

We recognize that, even when an employer or supervisor abuses a position of power over an employee, the employer will not be liable for mere insults, indignities, or annoyances that are not extreme and outrageous. But [the supervisor’s] ongoing acts of harassment, intimidation, and humiliation and his daily obscene and vulgar behavior, which GTE defends as his ‘management style,’ went beyond the bounds of tolerable workplace conduct. The picture painted by the evidence at trial was unmistakable: [the supervisor] greatly exceeded the necessary leeway to supervise, criticize, demote, transfer, and discipline, and created a workplace that was a den of terror for the employees. And the evidence showed that all of [his] abusive conduct was common, not rare. Being purposefully humiliated and intimidated, and being repeatedly put in fear of one’s physical well-being at the hands of a supervisor is more than a mere triviality or annoyance. GTE Southwest, Inc., 998 S.W.2d at 617 [internal citations omitted].

The evidence outlined in Bruce is a far cry from that described here. Reviewing the evidence in a light favorable to Loa, we find that his workplace was not even close to the “den of terror” described in Bruce. Here, Loa did not present evidence of emotional distress that went beyond worry, anxiety, vexation, embarrassment, and anger, and was so severe that no reasonable person could be expected to endure it without unreasonable suffering. Loa suggests that Goewey’s conduct made him feel “awful” and “terrible.” He also testified that he lost the enjoyment of working for his employer. Loa also testified that he felt nervous, “awful” and stressed.

Loa’s wife also testified about the effects of the situation on Loa. She testified that he was withdrawn and no longer happy. Loa did not seek counseling or medical treatment. He had no physical problems or health issues. While it is clear from the record that Goewey’s conduct was certainly rude and obnoxious, it does not rise to the level of creating stress that is so severe that no reasonable person could be expected to endure. See GTE Southwest, Inc., 998 S.W.2d at 611; see generally Benavides, 848 S.W.2d at 195.

While one may assume that Loa suffered some degree of emotional distress as a result of his being subjected to the boorish behavior of Goewey, he did not present any evidence establishing the severity of his distress. Similarly, the testimony that he no longer enjoyed his job provides circumstantial evidence of some emotional distress, but does not necessarily indicate severe emotional distress. Finally, anger, feeling awful, feelings of unhappiness and embarrassment are exactly the kinds of relatively minor emotional distress that the term “severe” is meant to filter out and render non-compensable under this tort. This is simply not a situation beyond all possible bounds of decency, atrocious, and utterly intolerable in a civilized society. Goewey’s behavior, as outlined by Loa, was no doubt inappropriate, annoying, and crude. The insults indignities and annoyances perpetuated by Goewey while in no way appropriate or commendable, did not rise to that high level of atrociousness required to sustain a judgment for intentional infliction of emotional distress. We hold that Appellee’s evidence of severe emotional distress was legally insufficient and sustain Appellant’s Issue No. Two. See, e.g., Gorges Foodservice, Inc. v. Huerta 964 S.W.2d 656, 669 (Tex.App-Corpus Christi 1997, pet. withdrawn); Dillard, 72 S.W.3d at 404-406; see generally Tiller v. McLure 121 S.W.3d 709 (Tex.2003).

We next turn to Appellant’s Issue Nos. Three, Four, Five, and Six, though not in the order presented by Appellant, and review the trial court’s judgment establishing the damages in this case. Issue No. Three challenges the exemplary damages award on legal and factual sufficiency grounds. Issue No. Four complains that the evidence is legally and factually insufficient to support the jury’s award of $800,000 in compensatory damages for mental anguish. Issue No. Five complains of the attorney’s fees award, contending that the trial court committed error by submitting a question to the jury and that the evidence is legally and factually insufficient to support the award. Appellant’s Issue No. Six contends that the actual judgment entered by the Court results in a double recovery to the Appellee by providing compensatory damages of $800,000, $750,000 as punitive damages limited by the statutory cap under the Texas Civil Practice and Remedies Code and attorney’s fees of $400,000 with $60,000 in additional fees contingent upon any appeals pursued.

The cause of action pled by Appellee asserts both a claim for damages under the TCHRA for employment based discrimination creating a hostile work environment and damages for the tort of intentional infliction of emotional distress. The jury found that the evidence established that the Appellant’s work place was a sufficiently hostile environment to award damages to Appellee. The charge instructed the jury that compensatory damages included a claim for damages for “emotional pain and suffering, inconvenience, mental anguish, loss of enjoyment of life and other non-pecuniary losses. The term ‘mental anguish’ implies a relatively high degree of mental pain and distress. It is more than a mere disappointment, anger, resentment or embarrassment, although it may include all of these. It includes a mental sensation of pain resulting from such painful emotions as grief severe disappointment, indignation wounded pride, shame, despair or public humiliation or all of these.”

Mental anguish is an element of damages under both causes of action. Having found that the evidence was sufficient to support the jury’s answers to question number one finding that the Ap-pellee is entitled to recover for workplace harassment under the TCHRA, we also find that the evidence was sufficient to support the jury’s award of compensatory damages in this case. There is ample evidence in the record to find that the Appellee suffered “mental anguish” as defined by the charge. Appellant’s Issue No. Four is overruled.

Having agreed with Appellant, however, that the evidence presented does not rise to the level that supports a claim for damages under the tort of intentional infliction of emotional distress, we must review the trial court’s final judgment for accuracy in its final award. Because the jury question did not segregate the damages awarded, we must affirm the award if the other damages could support the entire award. See, e.g., Wal-Mart Stores, Inc. v. Ard, 991 S.W.2d 518 (Tex.App.-Beaumont 1999, pet. denied).

B. Limitation on Damages

Notwithstanding, the jury’s determination that Appellee was entitled to compensatory damages of $800,000, the TCHRA establishes a limitation on the amount of damages recoverable for a claim based upon misconduct under the act. The Act clearly contemplates a limit of $800,000 for compensatory and punitive damages as a cap. “The sum of the amount of compensatory damages awarded under this section for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses and the amount of punitive damages awarded under this section may not exceed, for each complainant: ... (4) $300,000 in the case of a respondent that has more than 500 employees.” Tex. Lab.Code Ann. § 21.2585 (Vernon Supp.2004). We hold that any damages award for compensatory and punitive damages in this case are limited to a total of $300,000 and reform the trial court’s judgment in conformance herewith.

In its third issue on appeal, Appellant challenges the judgment’s award of exemplary damages raising a legal and factual sufficiency complaint. In cases claiming employment discrimination, the Texas Labor Code limits recovery for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, other nonpecu-niary losses, and punitive damages to a total of $300,000 in the case of a defendant which has more than 500 employees. Tex. Lab.Code AnN. § 21.2585(d)(4) (Vernon 1996 & Supp.2004). The jury awarded $6 million for these elements of damage, and the trial court reduced them to the statutorily mandated amount of $750,000 under the Texas Civil Practice and Remedies Code. The trial court looked to the general exemplary damages statute for guidance. Because we have ruled, however, that the judgment is limited to the claims established by the TCHRA which contemplates a cap of both compensatory and punitive damages and reformed the judgment below in conformance herewith, we do not reach Issue No. Three.

C. Attorney’s Fees

Having ruled that the claim asserted by the Appellee is limited to the damages contemplated by the limitations of the TCHRA, we next consider the attorney’s fee award made in this case and turn to Appellant’s Issue No. Five. The trial court, over objections by Appellant, submitted a question to the jury on the amount of reasonable attorney’s fees to be awarded to Appellee. The jury responded with an award of $400,000 for preparation and trial, and $60,000 for any subsequent appeals. Appellant contends that the question of attorney’s fees was a question for the court to decide. We agree.

The Texas Labor Code provides for an award of attorney’s fees to the prevailing party in a proceeding under the TCHRA, “a court may allow the prevailing party ... a reasonable attorney’s fee as part of the costs.” Tex. Lab.Code Ann. § 21.259(a) (Vernon 1996). This court has recognized that “[t]he court may allow a reasonable attorney’s fee as part of costs.” Dillard, 72 S.W.3d at 412. We agree with the Corpus Christi Court of Appeals that “when a claim is made based on employment discrimination under the Texas Commission on Human Rights Act, attorney’s fees are awarded as part of the costs. Tex. Lab Code Ann. § 21.259(a) (Vernon 1996). The trial court is the proper authority to determine and award costs, including attorney’s fees authorized as costs under Chapter 21 of the Texas Labor Code.” Gorges Foodservice, Inc., 964 S.W.2d at 673; Borg-Warner Protective Services Corp. v. Flores, 955 S.W.2d 861, 870 (Tex.App.-Corpus Christi 1997, no pet.).

Appellant’s Issue No. Five (a) is affirmed and we remand this proceeding to the trial court for the determination of the reasonable attorney’s fees to be awarded to Appellee. We, therefore, do not reach Appellant’s argument regarding the legal and factual sufficiency of the evidence to support the attorney’s fees awarded as raised in Issue No. Five (b).

Having ruled that Appellee is not entitled to recover damages on his intentional infliction of emotional distress claim and having ruled that the only damages recoverable are the compensatory and punitive damages contemplated by the TCHRA, no issue of double recovery remains. We agree that Appellee may only recover the damages allowed by the TCHRA as capped and reform the trial court’s judgment to conform to the statutory cap. Because our final determination only provides an award to Appellee under the TCHRA, no question regarding double recovery remains. Issue No. Six is overruled.

We, therefore, affirm the judgment of the trial court in part, reform the judgment to reflect a cap on damages recoverable in the amount of $300,000 and remand this case to the trial court for further proceedings regarding the issue of the amount of reasonable attorney’s fees to be awarded.

      . Tex. Lab.Code Ann. § 21.001 et seq. (Vernon 1996).

      . Tex. Civ. Prac. & Rem.Code Ann § 41.003 and § 41.008 (Vernon 1997 and Vernon Supp. 2004).

      . Tex. Lab.Code Ann. § 21.001 et seq. (Vernon 1996).