REVERSE and REMAND; and Opinion Filed December 29, 2016.




                                       S    In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                    No. 05-15-01449-CV

                       DONALD VIDETICH, Appellant
                                  V.
           TRANSPORT WORKERS UNION OF AMERICA, AFL-CIO, Appellee

                     On Appeal from the 134th Judicial District Court
                                  Dallas County, Texas
                          Trial Court Cause No. DC-14-03751

                            MEMORANDUM OPINION
                          Before Justices Myers, Evans, and Schenck
                                 Opinion by Justice Schenck
       Donald Videtich appeals from the trial court’s grant of summary judgment against him on

his claim for breach of contract against Transport Workers Union of America (“TWU”). He

argues (i) TWU’s Sick Leave & Short-Term Disability Policy (“Disability Policy”) transformed

the at-will status of his employment and guaranteed him short-term disability benefits and

continued employment for twelve months; and (ii) he was not required to seek administrative

remedies to receive short-term disability benefits and continued employment. We reverse and

remand. Because all issues are settled in law, we issue this memorandum opinion. TEX. R. APP.

P. 47.4.

                         FACTUAL AND PROCEDURAL BACKGROUND

       TWU is a national labor organization that represents workers primarily in the railroad,

airline, and bus transportation industries. TWU employed Videtich as its Deputy Director of the
Air Transport Division and as the American Airlines System Coordinator. In February 2012,

TWU revised its Disability Policy to include the following provision under the heading Return to

Work Following Disability Leave: “An employee on sick leave or disability leave will continue

to be an employee with TWU for . . . twelve (12) consecutive months from the last day worked

prior to commencing the leave . . . .” The Disability Policy also included under the heading

General Policy Requirements and Procedures a statement that “[a]n employee receiving TWU-

paid leave under this policy will no longer be eligible to receive such paid leave if for any reason

he/she ceases to be an employee of TWU.”

       In July 2013, Videtich had surgery on his knee and was later diagnosed with necrosis and

nerve damage. According to Videtich, he took sick leave on August 13, 2013, and he began

receiving short-term disability payments from TWU on October 3, 2013. TWU terminated

Videtich’s employment on November 1, 2013.

       Videtich’s attorney sent a demand letter to TWU’s general counsel, asserting Videtich’s

rights to short-term disability payments and continued employment under the Disability Policy.

TWU’s general counsel responded to Videtich’s counsel’s letter, informing him the letter would

be forwarded to the TWU International Secretary Treasurer for submission to the TWU

International Administrative Committee (“IAC”) for review of the decision to terminate

Videtich’s employment and his short-term disability payments.          The IAC issued a written

decision, in which it found (i) Videtich was not eligible for benefits because he had been

terminated, (ii) he was not on sick leave or disability leave when he was dismissed, and (iii) the

Disability Policy did not prevent TWU from terminating an employee, but instead provided an

employee on sick leave or disability leave with the opportunity to return to work for twelve

months following the last day worked after commencement of leave even if the employee had

exhausted the 180 days provided by the Disability Policy for short-term disability benefits. The

                                                –2–
IAC’s decision also advised Videtich of his right to appeal the IAC’s decision to the TWU

International Executive Council (“IEC”).     Videtich did not pursue an appeal of the IAC’s

decision to the IEC.

       Videtich filed suit against TWU and several of its officers for breach of contract, breach

of fiduciary duty, violations of the Texas Property Code, and attorney’s fees. He later amended

his petition to exclude the TWU officers and all claims except for his claim for breach of

contract. TWU filed a traditional motion for summary judgment, arguing Videtich’s suit should

be dismissed on several grounds. The trial court granted TWU’s motion for summary judgment

without specifying which grounds the motion was granted on and entered a final judgment.

                                    STANDARD OF REVIEW

       We review a trial court’s summary judgment de novo. Travelers Ins. Co. v. Joachim, 315

S.W.3d 860, 862 (Tex. 2010). The movant for a traditional summary judgment has the burden of

showing there is no genuine issue of material fact and that it is entitled to summary judgment as

a matter of law. TEX. R. CIV. P. 166a(c). A defendant who conclusively negates at least one of

the essential elements of a cause of action or conclusively establishes an affirmative defense is

entitled to summary judgment. Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex.

2010). In reviewing a summary judgment, we consider the evidence in the light most favorable

to the non-movant and resolve any doubt in the non-movant’s favor. W. Invs., Inc. v. Urena, 162

S.W.3d 547, 550 (Tex. 2005). When, as here, the trial court does not specify the basis for its

summary judgment, the appealing party must show it is error to base it on any ground asserted in

the motion. Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995). We must affirm the

summary judgment if any one of the movant’s theories has merit. Id.




                                              –3–
                                                             DISCUSSION

          TWU raised several grounds in its traditional motion for summary judgment, all of which

Videtich addressed in his briefs on appeal. First, TWU contended Videtich’s employment

relationship with TWU was at-will and that its Disability Policy terms, when harmonized, did not

alter the relationship between the parties. Second, TWU argued Videtich was not eligible for

Disability Policy benefits. Thus, TWU’s termination of Videtich’s employment was lawful and

could not constitute a breach of contract. Third, TWU contended its Disability Policy did not

constitute a bilateral or unilateral contract to guarantee Videtich any benefits once his

employment ceased. Fourth, TWU argued in the alternative that, even assuming a contract had

been formed, Videtich was bound by the “final and binding” decision of the IAC. Fifth, TWU

asserted in the alternative that, even assuming a contract had been formed, Videtich’s claims

were barred because he failed to exhaust available remedies under the TWU Constitution before

filing his lawsuit. 1

I.        At-Will Employment

          Videtich contends TWU’s Disability Policy altered his at-will status by providing for

continued employment for up to twelve months provided he remained disabled. TWU responds

that under Texas law, it is presumed that Videtich had an at-will employment relationship with

TWU and that Videtich failed to prove otherwise. TWU also argues that its Disability Policy

was never intended to alter the parties’ at-will relationship and it was part of an employment

manual that contained prominent and specific at-will disclaimers.



      1
        Additionally, TWU contended in its motion for summary judgment that, to the extent Videtich claimed the Disability Policy was a policy
of insurance or an employee benefit plan not exempt from coverage by the Employee Retirement Income Security Act (“ERISA”), his claims
were completely preempted by ERISA. However, TWU provided no further argument or evidence to establish ERISA’s coverage of the
Disability Policy. The supreme court has held this argument is an affirmative defense on which the employer bears the burden of proof. See
Colorado v. Tyco Valves & Controls, L.P., 432 S.W.3d 885, 889–90 (Tex. 2014). Videtich addressed this argument at the trial court and on
appeal, contending TWU’s policy was not an ERISA plan subject to preemption but failed to cite the record to support his argument. In any
event, because TWU failed to conclusively establish this affirmative defense, we do not consider it as a ground on which to affirm the summary
judgment. See Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010).



                                                                    –4–
       The long-standing rule in Texas provides for employment at will, terminable at any time

by either party, with or without cause, absent an express agreement to the contrary. Fed. Exp.

Corp. v. Dutschmann, 846 S.W.2d 282, 283 (Tex. 1993). In an employment-at-will situation, an

employee handbook or manual does not, of itself, constitute a binding contract for the benefits

and policies stated unless the manual uses language clearly indicating an intent to do so. Parviz-

Khyavi v. Alcon Labs., Inc., 395 S.W.3d 376, 381–82 (Tex. App.—Dallas 2013, pet. denied). An

employee handbook also does not create property interests in stated benefits and policies unless

some specific agreement, statute, or rule creates such an interest. Id. at 382. A disclaimer in an

employee handbook negates any implication that a personnel–procedures manual places a

restriction on the employment-at-will relationship. Dutschmann, 846 S.W.2d at 283.

       In Parviz, the employee relied upon an offer letter and the employer’s handbook entitled

Short-Term Disability Income Program Policy Guideline to argue she and her employer had

entered into a contract under which she was entitled to disability benefits. Parviz, 395 S.W.3d at

379. The offer letter included paragraphs outlining the employee’s initial pay and benefits

package, stated such pay and benefits “may be modified or adjusted during the course of [her]

employment,” and stated “[y]ou will be eligible for all Company benefits normally accorded

employees of similar length of service and status from your first day of employment.” Id.

       Here, the Disability Policy included the following provision under the heading Return to

Work Following Disability Leave: “An employee on sick leave or disability leave will continue

to be an employee with TWU for . . . twelve (12) consecutive months from the last day worked

prior to commencing the leave . . . .” In Parviz, this court noted that “will be eligible” language

suggested no guarantee but that “shall receive” language suggested entitlement to identified

benefits. Parviz, 395 S.W.3d at 381. The language here appears to fall somewhere in between a

non-guarantee and entitlement as those notions are described in Parviz.

                                               –5–
        The Disability Policy also included under the heading General Policy Requirements and

Procedures a statement that “[a]n employee receiving TWU-paid leave under this policy will no

longer be eligible to receive such paid leave if for any reason he/she ceases to be an employee of

TWU.”      We note that the two provisions at issue in the Disability Policy are internally

conflicting.   Videtich argues the “possibly conflicting provisions in the policy” could be

harmonized by reading an implied right of TWU to terminate an employee for just cause. It is

true that when the provisions of a contract appear to conflict, we attempt to harmonize the two

provisions and assume the parties intended every provision to have some effect.             United

Protective Servs., Inc. v. W. Vill. Ltd. P’ship, 180 S.W.3d 430, 432 (Tex. App.—Dallas 2005, no

pet.). However, Videitch’s harmonization ignores the provision’s broad language of “if for any

reason he/she ceases to be an employee.”

        TWU also argues any language in the Disability Policy that appeared to restrict TWU’s

ability to terminate Videtich at will would not be sufficient to do so because the Disability Policy

was contained within an employee manual/handbook that contained specific at-will disclaimers.

But review of the record reveals the Disability Policy was a standalone policy stored with several

others on TWU’s website, not in the same booklet or manual as in Parviz or Dutschmann, nor in

a signed receipt for the handbook as in Dutschmann. See Dutschmann, 846 S.W.2d at 283;

Parviz, 395 S.W.3d at 380. Moreover, the specific at-will disclaimers TWU references in its

arguments are contained within letters written in 2007 and 2008, years before the 2012 revision

to the Disability Policy that is at issue here.

        In view of the patent ambiguity of the Disability Policy and the lack of any explicit

disclaimer, we conclude a fact question exists concerning whether the Disability Policy expressly

modified the employment-at-will relationship. Accordingly, we cannot affirm the trial court’s

summary judgment on this ground.

                                                  –6–
II.    Eligibility for Disability Policy Benefits

       Videtich argues as part of his first issue that he accrued a right to short-term disability

benefits because he was disabled and provided documentation from physicians that he was

unable to work as a result of illness. TWU responds that Videtich met none of the eligibility

requirements to receive short-term disability benefits. TWU contends Videtich was required to

show the following to be eligible: full-time employment, an inability to work as a result of

disability, an application for government disability benefits and assignment of any such benefits

to TWU, remain on Disability Policy sick leave for 50 consecutive days, and not cease to be an

employee of TWU “for any reason.”

       The record contains evidence from Videtich regarding his ability to work, application for

government disability benefits, and length of sick leave. Videtich provided letters from his

chiropractor and physician regarding his injuries and their recommendations that he continue in

an off-work status until further notice. TWU points to evidence of Videtich’s continued activity

during the period he claims he was unable to work, including an affidavit from Videtich’s

supervisor, as well as reports, emails, and letters written by Videtich during the time he claimed

to be unable to work. However, TWU does not point us to any definition of the phrase “unable

to work” to support the notion—for summary judgment purposes at least—that responding to

email, signing letters, or taking phone calls made Videtich able to work.

       As for the requirement Videtich apply for government disability benefits, Videtich’s

affidavit indicates he applied for and received Social Security disability benefits, although he

does not state when he applied for the benefits. Videtich’s affidavit also indicates he began

taking sick leave August 14, 2013, and that TWU began paying him STD benefits on October 3,

2013, which addresses the requirement he be on Disability Policy sick leave for 50 consecutive

days. Considering the evidence in the light most favorable to Videtich, as our posture obliges us


                                                –7–
to do, there are fact issues regarding (1) whether Videtich was unable to work, (2) whether he

timely applied for government disability benefits and assigned them to TWU, and (3) whether he

was on paid sick leave for 50 consecutive days and thus eligible to receive short-term disability

benefits. See Urena, 162 S.W.3d at 550.

       Finally, TWU does not dispute Videtich was a full-time employee, but does point to

evidence in the record of Videtich’s termination to support its assertion Videtich could no longer

be eligible to receive short-term disability benefits once his employment ceased “for any reason.”

As discussed above, the Disability Policy provides under the heading General Policy

Requirements and Procedures a statement that “[a]n employee receiving TWU-paid leave under

this policy will no longer be eligible to receive such paid leave if for any reason he/she ceases to

be an employee of TWU.” We have already concluded above that the two provisions at issue in

the Disability Policy are ambiguous. Given this ambiguity and the fact issues above, we cannot

conclude the trial court properly granted summary judgment on this ground.

III.   Bilateral or Unilateral Contract for Benefits

       TWU contends that no contract could be formed here because the alleged promise of

benefits is illusory because it is contingent on a continued at-will employment relationship.

TWU also contends no unilateral contract was formed because the alleged promise to limit

TWU’s ability to terminate the at-will relationship is not an offer Videtich actually accepted by

performance as he was not eligible for short-term disability benefits.        Videtich argues the

elements of a bilateral contract are present in this case because he and TWU made mutual

promises: Videtich agreed to provide services in exchange for TWU’s agreement not to

terminate his employment while on disability. He contends that once he became disabled, he

was no longer an employee at will and was guaranteed to remain as an employee for a year for

purposes of receiving benefits. In the alternative, he argues the Disability Policy was a unilateral


                                                –8–
contract promising Videtich short-term disability benefits and a year of continued employment,

which Videtich accepted by performing services for TWU.

       An enforceable bilateral contract is one in which there are mutual promises between two

parties to the contract, each party being both a promisor and a promisee. Vanegas v. Am. Energy

Servs., 302 S.W.3d 299, 302 (Tex. 2009). A unilateral contract, on the other hand, is created by

the promisor promising a benefit if the promisee performs. Id. The unilateral contract becomes

enforceable only when the promisee performs. Id. While Videtich argues that once he became

disabled, he was no longer an at-will employee, the policy provides an employee must meet

certain requirements to be eligible to receive short-term disability benefits. Accordingly, to form

a bilateral contract, Videtich would have needed to both be an employee and meet the Disability

Policy’s eligibility requirements in exchange for TWU’s promise to provide those benefits. As

we discussed above, there are remaining fact questions as to whether Videtich was eligible to

receive short-term disability benefits.   Thus, here, too, is a fact issue of whether Videtich

performed his promise to form a bilateral contract or actually accepted TWU’s offer by

performance to form a unilateral contract.       Accordingly, we cannot affirm the summary

judgment on this ground.

IV.    “Final and Binding” Decision of the IAC

       Videtich argues he was not required to seek any administrative remedies in response to

TWU’s ground that Videtich was bound by the “final and binding” decision of the IAC. TWU

responds Videtich submitted this dispute to the IAC and thus bound himself to the finality of the

IAC’s decision.

       The Disability Policy provides under the heading of General Policy Requirements and

Procedures as follows.

       Questions or disputes regarding issues pertaining to or application of this Sick
       Leave and Short-Term Disability Policy may be presented by a TWU employee to
                                               –9–
       the International Administrative Committee for resolution by submitting the
       question or issue to the Office of the International Secretary Treasurer. The
       decision of the IAC is final and binding on all parties involved.

Videtich asserts that the Disability Policy provides for a permissive—not a mandatory—appeal

to the IAC and that he sent his demand letter to TWU’s general counsel, not to TWU’s secretary

treasurer for resolution before the IAC.

       We note that the plain language of the Disability Policy indicates Videtich was permitted

to present his dispute to the IAC, but he had to do so by submitting the dispute to the secretary

treasurer. The record contains Videtich’s demand letter to TWU’s general counsel, not to the

secretary treasurer, and the general counsel’s response informing Videtich that his letter would

be forwarded to the secretary treasurer for submission to the IAC. Thus, there is, at a minimum,

a fact issue as to whether Videtich submitted or consented to the submission of his dispute to the

secretary treasurer. We cannot affirm the summary judgment on this ground.

V.     Exhaustion of Available Remedies

       TWU contends that Videtich failed to exhaust available remedies under the TWU

Constitution before filing his lawsuit. Videtich argues the TWU Constitution expressly applies

to members and that the language of its provision for appeals makes it clear the appeals process

is for disputes among members. He avers that his complaints are in regards to his rights as an

employee of TWU, not as a member.

       TWU responds that Videtich was contractually required to exhaust internal TWU

Constitutional appeals with respect to TWU’s denial of his request for short-term disability

benefits prior to filing this lawsuit. TWU argues Videtich was required to comply with the

exhaustion of remedies provision because Videtich was appointed, or hired, pursuant to the

TWU Constitution by a previous International President and because through his oath of

membership to TWU, Videtich contractually agreed to abide by the TWU Constitution.


                                              –10–
       Article V of the TWU Constitution provides that the International President “shall have

the authority to appoint, direct, suspend or remove such organizers and representatives as he/she

may deem necessary, and fix their compensation . . . .” Article XXIII of the TWU Constitution

provides that “[a]ny member . . . aggrieved by any action, inaction, ruling, interpretation or

decision of the International Union or of any International officer shall exhaust all available

remedies provided by this Constitution before filing any legal proceeding concerning the matter

in any court or other forum against the International Union . . . .” Article IV of the TWU

Constitution defines “officers” to include the International President and the members of the

IAC. Article IX, which sets forth the duties and powers of the IAC, provides that “[a]ny action

or decision of the International Administrative Committee, and any practice or procedure

established or prescribed by the International Administrative Committee, may be reversed or

modified by the International Executive Committee or by the International Convention.”

       The record contains affidavits and appointment letters to establish Videtich was

appointed, or hired, by the then-International President. Record evidence establishes that the

International President and the IAC decided to make reductions in staff employees, that the IAC

instructed TWU Air Transportation Division Director Gary Drummond to terminate Videtich’s

TWU employment, and that Director Drummond did notify Videtich that he was released from

his employment.

       However, Videtich argues Article XXII of the TWU Constitution, which addresses

appeals, makes clear that the appeals process relates to disputes among TWU members, and that

Article XXIII makes no mention of resolution of disputes concerning employee compensation or

benefits. Section 1 of Article XXII provides for the appointment of a Committee on Appeals,

which “shall have the power to decide all appeals from Local Unions and their members in any

matter relating to the application of this Constitution or the By-Laws of the Local Union.”

                                              –11–
Section 2 provides that “[a]ny member in good standing may, after exhausting available

remedies in his/her Local Union, appeal to the International Union . . . .”

       Whether a contract is ambiguous is a question of law for the court. J.M. Davidson, Inc. v.

Webster, 128 S.W.3d 223, 229 (Tex. 2003). A contract is not ambiguous if it can be given a

definite or certain legal meaning. Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 940

S.W.2d 587, 589 (Tex. 1996). When construing a written contract, the primary concern of the

court is to ascertain the true intentions of the parties as expressed in the instrument. Webster,

128 S.W.3d at 229. A contract, however, is ambiguous when its meaning is uncertain and

doubtful or when it is reasonably susceptible to more than one meaning. Coker v. Coker, 650

S.W.2d 391, 393 (Tex. 1983). When the provisions of a contract appear to conflict, we will

attempt to harmonize the two provisions and assume the parties intended every provision to have

some effect. United Protective Services, Inc. v. W. Vill. Ltd. P’ship, 180 S.W.3d 430, 432 (Tex.

App.—Dallas 2005, no pet.). If we are unable to harmonize the provisions and give effect to all

clauses, and the contract is susceptible to more than one reasonable interpretation, we will find

the contract is ambiguous. Id.

       When a contract contains an ambiguity, the granting of a motion for summary judgment

is improper because the interpretation of the instrument becomes a fact issue. Coker, 650

S.W.2d at 394 (concluding an agreement was ambiguous on its own motion and reversing the

trial court’s grant of summary judgment). A court may conclude that a contract is ambiguous

even in the absence of such a pleading by either party. Hackberry Creek Country Club, Inc. v.

Hackberry Creek Home Owners Ass’n, 205 S.W.3d 46, 56 (Tex. App.—Dallas 2006, pet.

denied).

       We note that the provisions of the TWU Constitution requiring exhaustion of remedies

and appeals from the IAC are broad, encompassing “any action, inaction, ruling, interpretation or

                                               –12–
decision of the International Union or of any International officer” and “[a]ny action or decision

of the International Administrative Committee,” respectively. In contrast, the appeals provision

addresses disputes regarding TWU’s Constitution or a local union’s by-laws and discusses

“available remedies in [a member’s] Local Union.” It is unclear on this record whether the

exhaustion of remedies provision was meant to apply to employment disputes, such as the

application and effect of the Disability Policy, when the appeals process appears to apply only to

disputes regarding TWU’s Constitution or a local union’s by-laws. Thus, TWU’s Constitution is

susceptible of more than one reasonable interpretation.           We therefore conclude TWU’s

Constitution is ambiguous and the parties’ intent regarding the issue of whether Videtich was

required to exhaust all available remedies before filing this suit is a fact issue to be resolved by

the trier of fact. We cannot affirm on this ground of the summary judgment.

                                           CONCLUSION

       We reverse the trial court’s order granting summary judgment in favor of TWU and

remand this case to the trial court for further proceedings consistent with this opinion.




                                                    /David J. Schenck/
                                                    DAVID J. SCHENCK
                                                    JUSTICE


151449F.P05




                                               –13–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

DONALD VIDETICH, Appellant                          On Appeal from the 134th Judicial District
                                                    Court, Dallas County, Texas
No. 05-15-01449-CV         V.                       Trial Court Cause No. DC-14-03751-G.
                                                    Opinion delivered by Justice Schenck,
TRANSPORT WORKERS UNION OF                          Justices Myers and Evans participating.
AMERICA, AFL-CIO, Appellee

        In accordance with this Court’s opinion of this date, the judgment of the trial court is
REVERSED and this cause is REMANDED to the trial court for further proceedings consistent
with this opinion.

       It is ORDERED that appellant DONALD VIDETICH recover his costs of this appeal
from appellee TRANSPORT WORKERS UNION OF AMERICA, AFL-CIO.


Judgment entered this 29th day of December, 2016.




                                             –14–
