                                                                                ACCEPTED
                                                                            13-15-00194-CV
                                                            THIRTEENTH COURT OF APPEALS
                                                                   CORPUS CHRISTI, TEXAS
                                                                       5/21/2015 2:40:56 PM
                                                                          DORIAN RAMIREZ
                                                                                     CLERK


                   NO. 13-15-00194-CV
                                          FILED IN
            IN THE COURT OF APPEALS
                                  13th COURT OF APPEALS
                               CORPUS CHRISTI/EDINBURG,
 FOR THE THIRTEENTH COURT OF APPEALS     DISTRICT       TEXAS
             CORPUS CHRISTI, TEXAS 5/21/2015 2:40:56 PM
                                               DORIAN E. RAMIREZ
                                                    Clerk
    ONEMAIN FINANCIAL, INC. AND RAUL RINCON,

                                 Appellants,

                            V.

                      AIDA FLORES,

                                  Appellee.

                        **********

Appeal from County Court at Law No. 2, Hidalgo County, Texas
            Trial Court Cause No. CL-14-2498-B


                BRIEF OF APPELLANTS


                           OGLETREE, DEAKINS, NASH
                            SMOAK & STEWART, P.C.
                           Lawrence D. Smith
                           State Bar No. 18638800
                           Adam D. Boland
                           State Bar No. 24045520
                           2700 Weston Centre
                           112 East Pecan Street
                           San Antonio, Texas 78205
                           (210) 354-1300 — Telephone
                           (210) 277-2702 — Facsimile
                           ATTORNEYS FOR APPELLANTS

            ORAL ARGUMENT REQUESTED
                              NO. 13-15-00194-CV

                     IN THE COURT OF APPEALS
          FOR THE THIRTEENTH COURT OF APPEALS DISTRICT
                      CORPUS CHRISTI, TEXAS

             ONEMAIN FINANCIAL, INC. AND RAUL RINCON,

                                              Appellants,

                                        V.

                                 AIDA FLORES,

                                              Appellee.

                                   **********

         Appeal from County Court at Law No. 2, Hidalgo County, Texas
                     Trial Court Cause No. CL-14-2498-B


                           BRIEF OF APPELLANTS


TO THE HONORABLE COURT OF APPEALS:

      Appellants, OneMain Financial, Inc. ("OneMain"), and Raul Rincon,

(hereinafter collectively "Appellants") respectfully submit their Appellants' Brief

appealing the denial by the Trial Court of their Motion to Compel Arbitration.




                                         ii
              IDENTITY OF PARTIES AND THEIR COUNSEL

      The following is a complete list of all parties to the Trial Court's Order, as

well as the names and addresses of all trial and appellate counsel.

Appellants/Defendants:                      Appellants' Counsel:
OneMain Financial, Inc.                     Ogletree, Deakins, Nash, Smoak
                                            & Stewart, P.C.
Raul Rincon                                 Lawrence D. Smith
                                            State Bar No. 18638800
                                            Adam D. Boland
                                            State Bar No. 24045520
                                            2700 Weston Centre
                                            112 East Pecan Street
                                            Telephone: 210.354.1300
                                            Facsimile: 210.277.2702

                                            Defendants' Trial Counsel:
                                            Ogletree, Deakins, Nash, Smoak
                                            & Stewart, P.C.
                                            Lawrence D. Smith
                                            State Bar No. 18638800
                                            Adam D. Boland
                                            State Bar No. 24045520
                                            2700 Weston Centre
                                            112 East Pecan Street
                                            Telephone: 210.354.1300
                                            Facsimile: 210.277.2702

Appellee/Plaintiff:                         Appellee's Counsel:
Aida Flores                                 Carlos E. Hernandez, Jr., P.C.
                                            State Bar No. 00787681
                                            The Law Offices of Carlos E.
                                            Hernandez, Jr., P.C.
                                            200 East Cano Street
                                            Edinburg, Texas 78539
                                            Telephone: 956.386.0900
                                            Facsimile: 956.380.0771



                                          iii
 Plaintiff's Trial Counsel:
 Carlos E. Hernandez, Jr., P.C.
 State Bar No. 00787681
 The Law Offices of Carlos E.
 Hernandez, Jr., P.C.
 200 East Cano Street
 Edinburg, Texas 78539
 Telephone: 956.386.0900
 Facsimile: 956.380.0771




iv
                         TABLE OF CONTENTS

Description                                                             Page

IDENTITY OF PARTIES AND THEIR COUNSEL                                        iii

TABLE OF CONTENTS

TABLE OF AUTHORITIES                                                         vii

STATEMENT OF THE CASE                                                         1

STATEMENT REGARDING ORAL ARGUMENT                                             2

ISSUE PRESENTED                                                               2

STATEMENT OF FACTS                                                            3

SUMMARY OF ARGUMENT                                                           7

ARGUMENT                                                                      8

     ISSUE: Whether the Trial Court Erred in Denying Appellants' Motion to
            Compel Arbitration?                                               8
         A. Standard of Review                                                8
         B. A Strong Presumption in Favor of Arbitration Exists              9
         C. Appellants Established the Existence of a Valid Arbitration
            Agreement                                                        11
         D. Appellee's Claims Fall Within the Scope of the Arbitration
            Agreement                                                        14
         E. Appellee's Arguments Opposing Arbitration are Unfounded          16

CONCLUSION AND PRAYER                                                        24
APPENDIX

1.   Order Denying Defendant's Motion to Compel Arbitration
     and Motion to Stay Litigation                            Tab 1




                                    vi
                                   TABLE OF AUTHORITIES

                                                                     Page(s)

Cases

In re 24R, Inc.,
    324 S.W.3d 564 (Tex. 2010)                                            8

ATT Technologies, Inc. v. Communication Workers of America,
   475 U.S. 643 (1986)                                                   15

Banc One Acceptance Corp. v. Hill,
   367 F.3d 426 (5th Cir. 2004)                                           9

Burlington N.R.R. v. Akpan,
   943 S.W.2d 48 (Tex. App. — Fort Worth 1996, no writ)               11, 14

Burton v. Citigroup,
   No. 3:03-CV-3033-M (N.D. Tex. June 9, 2004)                           13

Cantella & Co., Inc. v. Goodwin,
   924 S.W.2d 943 (Tex. 1996)                                             9

Circuit City Stores, Inc. v. Adams,
   532 U.S. 105 (2001)                                                   10

D.R. Horton, Inc. v. Brooks,
   207 S.W.3d 862 (Tex. App. — Houston [14th Dist.] 2006, no pet.)       21

In re Dallas Peterbilt, Ltd., L.L.P.,
    196 S.W.3d. 161 (Tex. 2006)                                       11, 13

De Oliveira v. Citicorp North America, Inc.,
   2012 WL 1831230 (M.D. Fla. May 18, 2012)                              13

Dean Witter Reynolds, Inc. v. Byrd,
   470 U.S. 213 (1985)                                                     9

Delfingen US-Tex., L.P. v. Valenzuela,
   407 S.W.3d 791 (Tex. App. — El Paso 2013, no pet.)                      8

Diggs v. Citigroup, Inc.,
   551 Fed. Appx. 762 (5th Cir. 2014)                                 13, 20

EZ Pawn Corp. v. Mancias,
   934 S.W.2d 87 (Tex. 1996)                                             20




                                             vii
In re FirstMerit Bank, NA.,
    52 S.W.3d 749 (Tex. 2001)                                                  11, 14

In re Fleetwood Homes of Texas, L.P.,
    257 S.W.3d 692 (Tex. 2008)                                                     19

Gonzalez v. Citigroup,
   2011 WL 2148711 (D. Del. May 31, 2011)                                          13

In re Haliburton Co.,
    80 S.W.3d 566 (Tex. 2002)                                                  13, 18

Hartford Life Ins. Co. v. Forman,
   2009 WL 1546924 (Tex. App. — Corpus Christi June 3, 2009, pet. denied)          11

In re Hawthorne Townhomes, LP,
    282 S.W.3d 131 (Tex. App. — Dallas 2009, org. proceeding)                      12

In re Hope Lumber & Supply Co.,
    2008 WL 3984211 (Tex. App. — Corpus Christi Aug. 29, 2008, no pet. h.)     14, 18

Jones v. Fujitsu Network Communications, Inc.,
   81 F.Supp.2d 688 (N.D. Tex. 1999)                                               13

In re Kaplan Higher Education Corp.,
    235 S.W.3d 206 (Tex. 2007)                                                     12

In re Kellogg Brown & Root, Inc.,
    166 S.W.3d 732 (Tex. 2005)                                                     11

Lumuenemo v. Citigroup, Inc.,
   2009 WL 371901 (D. Colo. Feb. 12, 2009)                                     13, 18

Maverick Engineering, Inc. v. Nakkarni,
  2009 WL 1974757 (Tex. App. — Corpus Christi June 5, 2009, no pet.)               12

Merrill Lynch, Pierce, Fenner, and Smith, Inc. v. Longoria,
   783 S.W.2d 229 (Tex. App. — Corpus Christi 1989, no writ)                       15

Minter v. Citifinancial,
   No. 3:02-CV-2264-R (N.D. Tex. Jan. 13, 2003)                                    13

Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth Inc.,
   473 U.S. 614 (1985)                                                             10

Moses H Cone Memorial Hosp. v. Mercury Constr. Corp.,
  460 U.S. 1 (1983)                                                          9, 10, 14




                                             viii
Nabors Wells Servs., Ltd. v. Herrera,
   2009 WL 200987 (Tex. App. - Corpus Christi Jan. 27, 2009, no pet.)           21, 22, 23

OPE Intl LP v. Chet Morrison Contrs., Inc.,
  258 F.3d 443 (5th Cir. 2001)                                                     10, 14

In re Poly-America, L.P.,
    262 S.W.3d 337 (Tex. 2008)                                                         22

In re Prudential Ins. Co. of Am.,
    148 S.W.3d 124 (Tex. 2004)                                                         22

Quinn v. EMC Corp.,
   109 F.Supp.2d 681 (S.D. Tex. 2000)                                                  13

ReadyOne Industries, Inc. v. Flores,
   2014 WL 6982275 (Tex. App. — El Paso Dec. 10 2014, no pet. h.)                      14

Richmont Holdings, Inc., v. Superior Recharge Sys., LLC,
   455 S.W. 3d 573 (Tex. 2014)                                                         19

Smith v. H.E. Butt Grocery Co.,
   18 S.W.3d 910 (Tex. App. — Beaumont 2000, pet. denied)                               9

Southland Corp. v. Keating,
   465 U.S. 1 (1984)                                                                   10

Specialty Healthcare Mgmt., Inc. v. St. Mary Parish Hosp.,
   220 F.3d 650 (5th Cir. 2000)                                                         9

T.O. Stanley Boot Co., Inc. v. Bank of El Paso,
   847 S.W.2d 218 (Tex. 1992)                                                          23

Valero Refining, Inc. v. M/T Lauberhorn,
   813 F.2d 60 (5th Cir. 1987)                                                         11

In re Vesta Ins. Group, Inc.,
    192 S.W.3d 759 (Tex. 2006)                                                     19, 20

Volt Info. Sciences, Inc. v. Bd. of Trustees of Leland Stanford Junior Univ.,
   489 U.S. 468 (1989)                                                                  9

Webb v. Investacorp, Inc.,
  89 F.3d 252 (5th Cir. 1996)                                                          11

Weekley Homes, L.P. v. Rao,
  336 S.W.3d 413 (Tex. App. — Dallas 2011, pet. denied)                                 8




                                                  ix
White-Weld & Co. v. Mosser,
  587 S.W.2d 485 (Tex. Civ. App. — Dallas 1979, writ ref d n.r.e.)    9

Statutes

9 U.S.C. § 1                                                          9

TEX. CIV. PRAC. & REM. CODE § 171.001.                                9

48 C.F.R. § 222.7402                                                 17

Texas Rule of Appellate Procedure 9.4                                26




                                              x
                        STATEMENT OF THE CASE

      On May 30, 2014, Aida Flores ("Appellee" or "Flores") filed the instant

lawsuit alleging that OneMain's termination of her employment constituted

discrimination on the basis of age and disability. (CR 4-15). Further, Appellee

claimed that OneMain subjected her to a hostile work environment based on age

and disability. (CR 4-15). Appellee also alleged claims of libel/slander and

defamation against individual Defendant Raul Rincon ("Rincon"). (CR 4-15).

      Appellants timely filed an Original Answer, asserting a general denial and

the affirmative defense that Appellee's claims must be submitted to binding

arbitration as previously agreed upon by the parties. (CR 19-20). On July 23,

2014, Appellants filed a Motion to Compel Arbitration and Motion to Dismiss

("Motion"). (CR 21-49). On October 6, 2014, Appellee filed her Response to the

Motion. (CR 52-68). Also on October 6, 2014, the Trial Court held a hearing

regarding Appellants' Motion. (CR 51 and TR 1-4).

      At the hearing, Appellants presented evidence that a valid and enforceable

arbitration agreement existed between the parties. (TR 5-7 and CR 21-49).

Appellee argued that the arbitration agreement should not be enforced, but

presented no testimony or evidence. (TR 1-12 and CR 52-68). On October 20,

2014, with Court approval, Appellants' submitted a Reply, including additional

evidence, to Appellee's Response. (TR 4-5 and CR 69-90).



                                       1
       On February 11, 2015, the parties submitted an Agreed Order which the

Trial Court signed granting Appellants' Motion to Compel Arbitration and staying

the current proceedings. (CR 91-93). On April 1, 2015, the Trial Court, with no

notice or other pending motion, issued a new order which reversed its prior

granting of Appellants' Motion to Compel Arbitration. (CR 94). The Order

Denying Defendant's (sic) Motion to Compel Arbitration and Motion to Stay

Litigation' ("Order") was issued without any explanation. (CR 94). Appellants

timely filed their Notice of Appeal challenging the Trial Court's April 1, 2015

Order. (CR 95-96).

               STATEMENT REGARDING ORAL ARGUMENT

       Appellants request oral argument, because they believe it would help to

clarify the legal issues discussed herein and avoid misinterpretations or

misunderstandings of the record.

                                  ISSUE PRESENTED

       The evidence attached to Appellants' Motion and Reply and addressed at the

hearing establish that during her employment with OneMain, Appellee received

notice of the arbitration agreement on multiple occasions, including electronically

on December 17, 2012; that she continued to work for OneMain after receiving

notice; and that her claims in this lawsuit fall within the scope of the arbitration

1 Appellants' original Motion was titled Motion to Compel Arbitration and Motion to Dismiss.
(CR 21).

                                              2
agreement. In her Response and at the hearing, Appellee presented arguments and

assertions that were unsupported by evidence, law or relevant precedent.

Appellee's unjustified arguments do not overcome Appellants' evidence and the

undeniable precedent that confirms that a valid arbitration agreement exists

between the parties and should be enforced. The issue therefore presented is

whether the Trial Court erred in denying Appellants' Motion to Compel

Arbitration.

                          STATEMENT OF FACTS

      On October 29, 1997, a related business entity of OneMain hired Appellee

as a Customer Service Representative. (CR 33). On January 1, 2002, Appellee

was promoted to Senior Customer Service Representative (later renamed Branch

Account Executive). (CR 33). On June 18, 2013, OneMain terminated Appellee.

(CR 33). From June 2006 until the date of her termination, Appellee's District

Manager was Rincon. (CR 33).

      OneMain, a Delaware corporation that provides consumer lending services,

is a subsidiary of Citigroup Inc. (CR 79-87 and 89-90). Citigroup Inc. and its

subsidiaries, including OneMain, maintain an Employment Arbitration Policy

("Arbitration Agreement") that requires U.S. employees to arbitrate employment-

related disputes. (CR 33 and 36-40). OneMain expressly and unambiguously

requires employees to comply with the terms of the Arbitration Agreement as a



                                       3
condition of continued employment. (CR 36-40). The Arbitration Agreement also

provides that continued employment constitutes acceptance of the policy. (CR 36-

40).

       The Arbitration Agreement covers employment-related disputes that arise

between the company, the employee, and other employees. (CR 36-40). The

Arbitration Agreement specifically states that it covers any claims under any state

or federal laws regarding discrimination. (CR 36-40). The Arbitration Agreement

also specifically identifies defamation as an employment-related claim. (CR 36-

40).

       Appellee had specific knowledge of the Arbitration Agreement prior to and

throughout her employment. (CR 45-49). The Arbitration Agreement is attached

as Appendix A to the U.S. Employee Handbook. (CR 33). All U.S. employees

receive a copy of the Handbook and the attached appendix. (CR 33). Appellee

acknowledged receipt of the applicable Handbook in 2002, 2004, and 2006, which

contained a version of the Arbitration Agreement. (CR 33 and 47-49). In 2011

and 2013, Appellee electronically acknowledged receipt of the Handbook and

Arbitration Agreement. (CR 33 and 45-46). The 2013 acknowledgment received

by Appellee, and electronically accepted, expressly stated "[a]ppended to the

Handbook is an Employment Arbitration Policy as well as the "Principles of

Employment" that require you and Citi to submit employment-related disputes to



                                         4
binding arbitration." (CR 45). Appellee's Handbook Acknowledgements were

submitted to the Trial Court as evidence. (CR 45-49).

      Despite Appellee's agreement to arbitrate her claims against Appellants,

Appellee initiated this action on May 30, 2014, asserting claims for age

discrimination, disability discrimination, hostile work environment, and

defamation related to her termination. (CR 4-15). On June 30, 2014, Appellants

filed a timely answer and asserted the affirmative defense that this matter must be

compelled to arbitration due to the parties' entry into a binding arbitration

agreement. (CR 19-20).

      On July 8, 2014, Appellants' counsel forwarded copies of Appellee's

acknowledgments and the Arbitration Agreement to Appellee's counsel and asked

that Appellee voluntarily consent to arbitration; however, on July 21, 2014,

Appellee indicated that she refused to consent to arbitration. (CR 22-23). On July

23, 2014, Appellants filed their Motion to Compel Arbitration and Motion to

Dismiss. (CR 21-49). Attached to the Motion were four exhibits, which included

the Affidavit of Lisette Mejias proving up the attached exhibits as business records

and providing additional information regarding Appellee's employment and the

Arbitration Agreement. (CR 32-34). Further, attached as exhibits were copies of

the Arbitration Agreement, the Principles of Employment, and Appellee's

acknowledgments of having received notice of the Arbitration Agreement. (CR



                                         5
36-49). On October 6, 2014, a little over an hour before the hearing, Appellee filed

her Response to Appellants' Motion. (CR 52-68). No affidavits or evidence were

submitted with Appellee's Response. (CR 52-68).

      On October 6, 2014, the Honorable Jay Palacios held a hearing pursuant to

Appellants' Motion. (TR 1-4). At the hearing, both parties' counsel appeared for

oral argument. (TR 2-4). No live testimony was presented. (TR 4-12).

Appellants' counsel argued the pending Motion and went through the Court's

necessary analysis, including establishing that notice of the Arbitration Agreement

occurred, that Appellee continued to work for OneMain following notice, and that

all of Appellee's claims fell within the scope of the Arbitration Agreement. (TR 5-

7 and 9-11). Appellee's counsel then presented arguments that Appellants did not

establish that a valid Arbitration Agreement existed between the parties, that the

Franken Amendment somehow prevented enforcement of the Arbitration

Agreement, and that the Arbitration Agreement is potentially illusory. (TR 7-9).

      Given that Appellee's Response was not filed until immediately prior to the

hearing, the Trial Court granted Appellants additional time to file a Reply. (CR 4-

5). On October 20, 2014, Appellants filed their Reply disputing Appellee's

allegations and attaching two additional pieces of evidence. (CR 69-90).

Specifically, Appellants' presented evidence confirming that the Franken




                                         6
Amendment did not apply to the Arbitration Agreement and that OneMain was a

subsidiary of Citigroup Inc. (CR 79-90).

      On February 11, 2015, the Honorable Jay Palacios signed an Agreed Order,

submitted by the parties and signed by each parties' counsel, which granted

Appellants' Motion to Compel Arbitration and stayed any further proceedings.

(CR 91-92). On April 1, 2015, however, without any notice and no pending

motion to consider, Judge Palacios signed another Order denying Appellants'

Motion to Compel Arbitration. (CR 94). Appellants' then filed a timely Notice of

Appeal appealing the April 1, 2015 Order denying Appellants' Motion. (CR 95).

                         SUMMARY OF ARGUMENT

      Appellants presented irrefutable evidence establishing that Appellee

received notice of the Arbitration Agreement during her employment, continued to

work after receiving notice, and that her claims fall within the scope of the

Arbitration Agreement. Appellants' evidence undeniably establishes that a valid

and enforceable Arbitration Agreement exists. Therefore, a strong presumption

supporting the enforceability of the Arbitration Agreement exists. Appellee's

conclusory and unsupportable arguments do not overcome this presumption or the

relevant case law applicable to the case at hand. Indeed, Appellee wholly failed to

present any evidence to contradict the clear evidence Appellants presented that the

Arbitration Agreement is valid and enforceable. Therefore, given the relevant



                                           7
precedent in Texas and the strong public policy favoring arbitration agreements,

the evidence presented compels the conclusion that the Trial Court erroneously

denied Appellants' Motion to Compel Arbitration; and that Appellants' Motion to

Compel Arbitration should be granted and the parties should be ordered to

arbitration.

                                     ARGUMENT

I. THE TRIAL COURT ERRED IN DENYING APPELLANTS'
     MOTION TO COMPEL ARBITRATION.

      A.       Standard of Review.

      Under section 51.016 of the Texas Civil Practice and Remedies Code, this

Court should apply an abuse of discretion standard in reviewing this interlocutory

appeal. Weekley Homes, L.P. v. Rao, 336 S.W.3d 413, 418 (Tex. App. — Dallas

2011, pet. denied). Under this standard, the Court of Appeals defers "to the trial

court's factual determinations if they are supported by evidence, but [it] review[s]

the trial court's legal determinations de novo.'" Weekley, 336 S.W.3d at 418 (citing

In re Labatt Food Svc., L.P., 279 S.W.3d 640, 643 (Tex. 2009)); see Delfingen US-

Tex., L.P. v. Valenzuela, 407 S.W.3d 791, 800 (Tex. App. — El Paso 2013, no pet.).

"Whether an arbitration agreement is enforceable is subject to de novo review."

Id. "A trial court that refuses to compel arbitration under a valid and enforceable

arbitration agreement has clearly abused its discretion." In re 24R, Inc., 324




                                         8
S.W.3d 564, 566 (Tex. 2010) (citing In re Haliburton Co., 80 S.W.3d 566, 573

(Tex. 2002)).

      B.      A Strong Presumption in Favor of Arbitration Exists.

      Federal and state policies strongly favor arbitration.              See Dean Witter

Reynolds, Inc. v. Byrd, 470 U.S. 213, 217 (1985); Moses H Cone Memorial Hosp.

v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983) (the Federal Arbitration Act

represents "a liberal federal policy favoring arbitration agreements"); Banc One

Acceptance Corp. v. Hill, 367 F.3d 426, 429 (5th Cir. 2004) ("once a court

determines that an agreement to arbitrate exists, the court must pay careful

attention to the strong federal policy favoring arbitration and must resolve all

ambiguities in favor of arbitration"); Cantella & Co., Inc. v. Goodwin, 924 S.W.2d

943, 944 (Tex. 1996); see also TEx. Civ. PRAC. & REM. CODE § 171.001, et. seq.

       The Federal Arbitration Act2 ("FAA") makes private agreements to submit

disputes to arbitration valid and enforceable and requires courts to enforce

arbitration agreements in the same manner as it enforces all contracts. See 9

U.S.C. § 1, et seq.; Volt Info. Sciences, Inc. v. Bd. of Trustees of Leland Stanford

Junior Univ., 489 U.S. 468, 474 (1989); Specialty Healthcare Mgmt., Inc. v. St.


2
  In the employment context, any employment relationship involving interstate commerce falls
within the coverage of the FAA. White-Weld & Co. v. Mosser, 587 S.W.2d 485, 487 (Tex. Civ.
App. — Dallas 1979, writ ref d n.r.e.). Stated another way, if the employer's business involves
interstate commerce, the FAA applies. Smith v. H.E. Butt Grocery Co., 18 S.W.3d 910, 913
(Tex. App. — Beaumont 2000, pet. denied). In this case, OneMain's business involves interstate
commerce. (CR 33-34). Appellee never claimed otherwise.

                                              9
Mary Parish Hosp., 220 F.3d 650, 654 (5th Cir. 2000). Further, the United States

Supreme Court has held that the FAA may be used to enforce arbitration

agreements between employers and employees that are required as a condition of

employment. See Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 105-107

(2001).

      Additionally, in Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., the

Supreme Court held, "[the FAA] establishes that, as a matter of federal law, any

doubts concerning the scope of arbitrable issues should be resolved in favor of

arbitration, whether the problem at hand is the construction of the contract

language itself or an allegation of waiver, delay, or a like defense to arbitrability."

460 U.S. at 24-25; see also OPE Intl LP v. Chet Morrison Contrs., Inc., 258 F.3d

443, 445 (5th Cir. 2001). Further, "[In enacting the FAA,] Congress declared a

national policy favoring arbitration and withdrew the power of the states to require

a judicial forum for the resolution of claims which the contracting parties agreed to

resolve by arbitration." Southland Corp. v. Keating, 465 U.S. 1, 10 (1984). This

congressional policy "requires that [courts] rigorously enforce agreements to

arbitrate." Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth Inc., 473 U.S.

614, 626 (1985) (citing Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 221

(1985)).




                                          10
      Texas law is consistent with the federal standard. An agreement to arbitrate

in Texas is enforceable under the FAA if: (1) a valid agreement exists; and (2) the

claims raised are within the scope of the agreement. In re Kellogg Brown & Root,

Inc., 166 S.W.3d 732, 737 (Tex. 2005); Hartford Life Ins. Co. v. Forman, 2009

WL 1546924, at *3 (Tex. App. — Corpus Christi June 3, 2009, pet. denied).

"Because state and federal policies continue to favor arbitration, a presumption

exists favoring agreements to arbitrate under the FAA, and courts must resolve any

doubts about an arbitration agreement's scope in favor of arbitration." In re

FirstMerit Bank, NA., 52 S.W.3d 749, 753 (Tex. 2001); see Burlington N.R.R. v.

Akpan, 943 S.W.2d 48, 50 (Tex. App. — Fort Worth 1996, no writ) (finding that

arbitration is strongly favored and noting that Texas courts will "indulge every

reasonable presumption" in favor of arbitration).

      C.    Appellants Established the Existence of a Valid Arbitration
            Agreement.

      Ordinary state law contract principles determine the validity of a written

arbitration agreement. Webb v. Investacorp, Inc., 89 F.3d 252, 258 (5th Cir. 1996);

Valero Refining, Inc. v. M/T Lauberhorn, 813 F.2d 60, 64 (5th Cir. 1987). In

Texas, "[a]n employer may enforce an arbitration agreement entered into during an

at-will employment relationship if the employee received notice of the employer's

arbitration policy and accepted it."    In re Dallas Peterbilt, Ltd., L.L.P., 196

S.W.3d. 161, 162 (Tex. 2006) (an at-will employee that receives notice of the

                                         11
arbitration agreement and continues to work accepts the terms as a matter of law);

see Maverick Engineering, Inc. v. Nakkarni, 2009 WL 1974757, at * 4 (Tex. App.

— Corpus Christi June 5, 2009, no pet.) (if a valid arbitration agreement exists, a

presumption favoring arbitration exists).

      Further, the Texas Supreme Court has held that agents of a signatory to an

arbitration agreement may enforce the agreement even if they themselves are non-

signatories. See In re Kaplan Higher Education Corp., 235 S.W.3d 206, 209-10

(Tex. 2007). Parties to an arbitration agreement may not avoid arbitration by

naming individual agents of the other party to the agreement and suing them in

their individual capacities. In re Hawthorne Townhomes, LP, 282 S.W.3d 131,

139 (Tex. App. — Dallas 2009, org. proceeding) (individual agents of the corporate

entity are entitled to invoke the corporate entity's arbitration agreement when sued

individually).

      It is undisputed that OneMain presented Appellee with the Arbitration

Agreement and that the Agreement provides that all U.S. employees agree to refer

disputes involving employment-related claims between relevant entities and

employees to arbitration for a final and binding resolution. (CR 32-40 and 45-49).

Appellee accepted and consented to be bound by the Arbitration Agreement's

terms on multiple occasions, including with her acknowledgement of the

Agreement in 2013. (CR 45-49). Further, following her receipt of notice of the



                                            12
Arbitration Agreement, Appellee continued to work for OneMain. (CR 32-34).

These facts are undisputed; thus, Texas case law establishes that Appellee's

conduct constitutes acceptance of the Arbitration Agreement as a matter of law.

See Quinn v. EMC Corp., 109 F.Supp.2d 681, 687 (S.D. Tex. 2000); Jones v.

Fujitsu Network Communications, Inc., 81 F.Supp.2d 688, 692 (N.D. Tex. 1999)

("[b]y continuing to work for Defendant after he received notice of the Arbitration

Policy, Plaintiff accepted the arbitration policy as a matter of law."); In re Dallas

Peterbilt, Ltd., L.L.P., 196 S.W.3d at 163; In re Halliburton Co., 80 S.W.3d at 568-

569.

       In fact, prior similar versions of the same Arbitration Agreement that the

company seeks to enforce herein have been upheld by courts applying Texas law.

See Diggs v. Citigroup, Inc., 551 Fed. Appx. 762, 765-66 (5th Cir. 2014); Burton v.

Citigroup, No. 3:03-CV-3033-M (N.D. Tex. June 9, 2004); Minter v. Citifinancial,

No. 3:02-CV-2264-R (N.D. Tex. Jan. 13, 2003); see also De Oliveira v. Citicorp

North America, Inc., 2012 WL 1831230, at * 3 (M.D. Fla. May 18, 2012);

Gonzalez v. Citigroup, 2011 WL 2148711, at * 2 (D. Del. May 31, 2011);

Lumuenemo v. Citigroup, Inc., 2009 WL 371901, at * 7 (D. Colo. Feb. 12, 2009).

       Here, the Trial Court did not make any findings of fact, either oral or

written. (CR 94 and TR 4-12). The underlying Order simply indicates that the

Motion is denied, but does not identify the rationale for the decision. Further,



                                         13
Appellee has not presented one shred of evidence to contest that notice and

acceptance have occurred. Thus, the record establishes that Appellants have

satisfied their burden, based on the presented evidence, that a valid Arbitration

Agreement exists between the parties. See ReadyOne Industries, Inc. v. Flores,

2014 WL 6982275, at * 3 (Tex. App. — El Paso Dec. 10 2014, no pet. h.) (exhibits

and authenticated affidavit satisfied initial burden regarding existence of valid

agreement).

      D.      Appellee's Claims Fall Within the Scope of the Arbitration
              Agreement

      As the Supreme Court stated in Moses H. Cone Mem. Hosp. "as a matter of

federal law, any doubts concerning the scope of arbitrable issues should be

resolved in favor of arbitration." 460 U.S. at 24-25; see also OPE Int'l LP, 258

F.3d at 445; In re FirstMerit Bank, NA., 52 S.W.3d at 753; In re Hope Lumber &

Supply Co., 2008 WL 3984211, at * 3 (Tex. App. — Corpus Christi Aug. 29, 2008,

no pet. h.) ("[a]ny doubts concerning the scope of arbitrable issues should be

resolved in favor of arbitration."); Akpan, 943 S.W.2d at 50 (arbitration is strongly

favored and noting that Texas courts will "indulge every reasonable presumption"

in favor of arbitration).

      Here, the Arbitration Agreement covers Appellee's claims. (CR 36-40).

Appellee's Original Petition includes claims for age discrimination, disability

discrimination, hostile work environment and defamation related to her

                                         14
termination.    (CR 4-18). Appellee's claims inarguably arise out of her

employment relationship with OneMain and fall within the express written scope

of the Arbitration Agreement. (CR 36-40).

      To the extent Appellee contends otherwise, she bears the burden to show

that her claims fall outside the scope of the arbitration policy. Merrill Lynch,

Pierce, Fenner, and Smith, Inc. v. Longoria, 783 S.W.2d 229, 231 (Tex. App. —

Corpus Christi 1989, no writ). The United States Supreme Court has held that in

"the absence of any express provision excluding a particular grievance from

arbitration, we think only the most forceful evidence of a purpose to exclude the

claim from arbitration can prevail." ATT Technologies, Inc. v. Communication

Workers of America, 475 U.S. 643, 650 (1986) (citing United Steelworkers of

America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 584 (1960)). Not only

is there a complete absence of "forceful evidence" negating the application of the

Arbitration Agreement to Appellee's claims, there is no evidence that even

remotely negates its application to her claims. As a result, Appellee's claims are

covered by the Arbitration Agreement. Because the Arbitration Agreement is valid

and Appellee's claims fall within the scope of the policy, the Trial Court abused its

discretion in not compelling arbitration.




                                            15
      E.      Appellee's Arguments Opposing Arbitration are Unfounded.

       Appellee asserts that the Arbitration Agreement is unenforceable on the

grounds that Appellants did not establish that an Arbitration Agreement existed

between the parties, that the Franken Amendment somehow prevented

enforcement of the Arbitration Agreement, that the Arbitration Agreement is

potentially illusory, and a laundry list of other unjustified assertions. (CR 52-68

and TR 7-9). Appellee's arguments are neither supported by Texas case law nor

evidence.

       1. OneMain Financial, Inc. is a subsidiary of Citigroup Inc., thus, the
          Arbitration Agreement exists between the parties.
       Appellee argues that her Arbitration Agreement is with Citigroup Inc. and

not OneMain, the subsidiary from which she received the Agreement and for

whom she worked. (CR 52-68). The language of the Agreement expressly states

that the Agreement relates to the employee, Appellee, and Citigroup Inc., its

subsidiaries, and affiliates. (CR 36). OneMain Financial, Inc. is a subsidiary of

Citigroup Inc. (CR 79-873 and 89-90). Indeed, Appellee has presented no

evidence to contradict Appellants evidence. Appellee's unfounded assertion that

OneMain is not a subsidiary is insufficient to negate the existence of an

enforceable Arbitration Agreement between the parties.



3The exhibit submitted to the Trial Court is a document filed with Citigroup Inc.'s 2013 10-K.
This document is a public record and filed with the Securities and Exchange Commission.


                                             16
      2. The Franken Amendment is wholly inapplicable.

      Although not asserted in Appellee's Response, at the hearing on this matter,

Appellee's counsel stated that the Franken Amendment may apply to this matter.

(TR 7-9). The Franken Amendment restricts the use of arbitration agreements by

federal contractors with contracts in excess of $1 million with the Department of

Defense. 48 C.F.R. § 222.7402. The Amendment further is limited to cover only

claims asserted under Title VII or torts related to or arising out of sexual assault or

harassment. 48 C.F.R. § 222.7402. OneMain is not a federal contractor and does

not have or maintain any contracts with the Department of Defense, thus, the

Franken Amendment is inapplicable. (CR 89-90). More importantly, Appellee

asserts only claims for harassment and discrimination under the Texas Commission

on Human Rights Act, and defamation against Rincon. (CR 4-18). Therefore, the

claims asserted by Appellee do not even fall under the scope of claims coved by

the Franken Amendment. Thus, this argument is frivolous and not supported at all

by relevant law or the pleadings.

      3. The Arbitration Agreement is not illusory.

      Appellee summarily alleged that the Arbitration Agreement is illusory. (CR

52-68). After citing a few cases concerning illusory agreements, Appellee

presented no further argument or analysis in her Response concerning this position.




                                          17
(CR 52-68). A plain review of the Arbitration Agreement, however, clearly shows

it is not illusory.

       In In re Halliburton Co., the Texas Supreme Court reviewed an arbitration

agreement that contained very similar terms and conditions as the Arbitration

Agreement in this matter. 80 S.W.3d 566, 568-69 (Tex. 2002). The Texas

Supreme Court, in analyzing whether the agreement was illusory, held that the

agreement, including its terms and conditions, was not illusory because the

employer could not avoid its promise to arbitrate because the employer could not

avoid its obligation without providing notice of a change to the agreement. Id. at

569-70. Thus, any changes were prospective.            Id.   Here, the Arbitration

Agreement is not illusory because OneMain has no right to unilaterally amend or

revoke the Agreement without providing 30 days' notice of the changes. (CR 36-

40); see In re Halliburton, 80 S.W.3d at 568-70; In re Hope Lumber & Supply Co.,

2008 WL 3984211, at * 4; see also Lumuenemo, 2009 WL 371901, at * 6 (holding

that a similar version of the arbitration agreement at issue in this case was not

illusory). Appellee's argument that the Agreement is illusory fails.

       4. Any assertion of waiver fails because Appellee did not establish that
          Appellants substantially invoked the judicial process to her
          detriment.
       Appellee alleges that Appellants waived the Arbitration Agreement in her

Response, but she fails to detail how waiver allegedly occurred. (CR 64-66).



                                         18
Nevertheless, Appellee has failed to establish that Appellants waived the

Arbitration Agreement by substantially invoking the judicial process to her

prejudice. In re Fleetwood Homes of Texas, L.P., 257 S.W.3d 692, 694 (Tex.

2008); see Richmont Holdings, Inc., v. Superior Recharge Sys., LLC, 455 S.W. 3d

573, 576 (Tex. 2014) (no waiver occurred when defendant filed separate lawsuit

against plaintiff in another county, moved to transfer venue, and engaged in

minimal discovery). There is a strong presumption against waiver under the

Federal Arbitration Act. In re Vesta Ins. Group, Inc., 192 S.W.3d 759, 763 (Tex.

2006). A party does not waive its right to arbitrate merely by delay. Id. Instead,

the party arguing waiver must establish that any delay resulted in prejudice. In re

Fleetwood Homes of Texas, L.P., 257 S.W.3d at 694. Appellee makes no

argument on how Appellants have allegedly waived the Agreement or how she is

prejudiced, but simply cites inapplicable cases on the subject matter. (CR 52-68).

      Appellee filed suit on May 30, 2014, and Appellants filed a timely answer

on June 30, 2014, asserting the affirmative defense that Appellee's claims are

subject to a binding Arbitration Agreement. (CR 4 and 19-20). On July 8, 2014,

Appellants sent Appellee notice of her acknowledgments and the Arbitration

Agreement and attempted to move this matter to arbitration informally. (CR 22-

23). After receiving notice of Appellee's refusal to consent to arbitration,

Appellants filed their Motion to Compel Arbitration and Motion to Dismiss on July



                                        19
23, 2014. (CR 21). Appellee has also propounded discovery upon Appellants,

which Appellants have opposed given that the parties are not in the proper forum.

On these facts, Appellee's waiver argument fails as a matter of law. See In re

Vesta Ins. Group, Inc., 192 S.W.3d at 763 (no waiver where case litigated in court

for 2 years, over $200,000.00 in fees expended during discovery, four depositions

were noticed and one set of requests for production issued); EZ Pawn Corp. v.

Mancias, 934 S.W.2d 87, 90 (Tex. 1996) (filing an answer, sending written

discovery, noticing a deposition, discussing a docket control order and agreeing to

postpone trial did not constitute waiver). Given the relevant facts of this case,

Appellee's assertion of waiver is unsupportable.

      5. Appellee has failed to establish unconscionability as a defense.

      Appellee presented vague arguments of unconscionability in her Response,

but fails to provide any evidence in support of those allegations. (CR 52-68).

Furthermore, review of applicable case law demonstrates that the Arbitration

Agreement is not unconscionable. See Diggs, 551 Fed. Appx. at 765-66 (the Fifth

Circuit confirmed that a similar version of the arbitration agreement at issue herein

was not unconscionable, and that a valid and enforceable arbitration agreement

existed between the parties).

      First, while Appellee references several cases concerning arbitration fees,

she does not argue or present evidence that she would incur excessive arbitration



                                         20
costs in this matter that would render the Arbitration Agreement unconscionable.

(CR 52-68). Alternatively, the Arbitration Agreement expressly states that the

company will pay all filling fees, hearing fees, and arbitrator fees. (CR 36-40). In

fact, Appellee admits that Appellants will bear the costs typically shared by the

parties. (CR 61); see D.R. Horton, Inc. v. Brooks, 207 S.W.3d 862, 870 (Tex. App.

— Houston [14th Dist.] 2006, no pet.) (finding the plaintiff's unconscionability

argument moot because the employer agreed to pay all the costs associated with

arbitration of their dispute); see also Nabors Wells Servs., Ltd. v. Herrera, 2009

WL 200987, at *6 (Tex. App. - Corpus Christi Jan. 27, 2009, no pet.) ("because the

record contains no specific evidence that Herrera would actually be charged

excessive arbitration fees, there is legally insufficient evidence that the arbitration

agreement is unconscionable based on excessive costs."). Thus, Appellee's

argument is wholly inappropriate because the fees are borne by OneMain. (CR 36-

40).

       Appellee also erroneously contends that the Arbitration Agreement deprives

her of an equivalent and accessible forum to adjudicate her claims and is therefore

unconscionable and unenforceable. (CR 62-64). The Corpus Christi Court of

Appeals previously rejected this particular argument from Appellee's counsel. See

Nabors Wells Servs., Ltd., 2009 WL 200987, at *6-7. Further, Appellee's assertion

finds no support in Texas case law because the Arbitration Agreement does not



                                          21
limit Appellee's ability to pursue any statutory or common law rights or any

remedies available under the law. Id. "An arbitration agreement covering statutory

claims is valid so long as 'the arbitration agreement does not waive substantive

rights and remedies of the statute and the arbitration procedures are fair so that the

employee may effectively vindicate his statutory rights.'" In re Poly-America,

L.P., 262 S.W.3d 337, 352 (Tex. 2008) (citing In re Haliburton, 80 S.W.3d at 572).

"'By agreeing to arbitrate a statutory claim, a party does not forgo the substantive

rights afforded by the statute; it only submits to their resolution in an arbitral,

rather than a judicial, forum."' Id.

      The Arbitration Agreement in this case only requires the parties to submit

claims within the scope of its coverage to binding arbitration. (CR 36-40). The

Agreement does not eliminate any claims, causes of actions, or available damages.

(CR 36-40). Thus, Appellee's claim that the Agreement deprives her of an

equivalent and accessible forum fails, and the Agreement cannot be found

unenforceable on that basis.

      Despite unequivocal Texas case law on this issue, Appellee also maintains

that the Arbitration Agreement is unconscionable because it deprives her of her

right to a jury trial. Texas law does not prohibit a party from contractually waiving

its constitutional right to a trial by jury. In re Prudential Ins. Co. of Am., 148




                                          22
S.W.3d 124, 132-33 (Tex. 2004). For this reason, again Appellee's argument is

unsupportable as a matter of law.

      6. Appellee has failed to establish indefiniteness as a defense.

      Appellee presents no recognizable argument or precedent in her Response

that would support her assertion that the Arbitration Agreement is unenforceable

for alleged indefiniteness. (CR 61). The Texas Supreme Court has held that a

contract need only be sufficiently definite in its material terms so that a court can

understand what the parties agreed to. See T.O. Stanley Boot Co., Inc. v. Bank of

El Paso, 847 S.W.2d 218, 221 (Tex. 1992). If evidence of all material terms of a

contract is introduced, the contract is enforceable and will not fail for

indefiniteness. Id. at 222. In reviewing an arbitration agreement, the Corpus

Christi Court of Appeals found an arbitration agreement sufficiently definite as to

its material terms when it identified the scope of the claims required to be

submitted to arbitration, the parties bound by the agreement, the organization

responsible for administering the arbitration and the applicable rules. See Nabors

Wells Servs., Ltd., 2009 WL 200987, at *5.

      Appellee claims that the Agreement is indefinite in regards to the procedures

to be used in conducting the arbitration, who will pay the arbitrator, rules of

discovery, and whether the proceedings will be of record. (CR 61-62). The

Agreement, however, expressly covers each of these alleged deficiencies. (CR 36-



                                         23
40). In fact, the Arbitration Agreement goes into extensive details on these terms

and several additional terms, including: initiation of proceedings; appointment of

arbitrator(s); vacancies; proceedings; stenographic record; discovery; prehearing

motions; evidence; fees and expenses; awards; enforcement of awards; expenses

and fees; and additional terms. (CR 36-40). Therefore, Appellee's argument that

the Arbitration Agreement is unenforceable due to indefiniteness fails as a matter

of law.

                         CONCLUSION AND PRAYER

      WHEREFORE, PREMISES CONSIDERED, Appellants respectfully pray

that this Honorable Court determine that the Trial Court abused its discretion and

erred in denying their Motion to Compel Arbitration, reverse the Trial Court's

Order, render an order compelling submission of this matter to arbitration pursuant

to the terms of the Arbitration Agreement, and stay the underlying proceeding until

the arbitration proceedings are completed. Appellants pray for such other and

further relief, at law or in equity, to which they may be entitled.




                                          24
Respectfully submitted,



/s/ Lawrence D. Smith
Lawrence D. Smith
State Bar No. 18638800
Larry.Smith@ogletreedeakins.com
Adam D. Boland
State Bar No. 24045520
Adam.Boland@ogletreedeakins.com
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
112 E. Pecan Street
2700 Weston Centre
San Antonio, Texas 78205
210.354.1300 — Telephone
210.277.2702 — Facsimile

ATTORNEYS FOR APPELLANTS
ONEMAIN FINANCIAL, INC. AND RAUL
RINCON




        25
                            CERTIFICATE OF SERVICE

      On this 21st day of May 2015, I electronically transmitted the foregoing
pleading, using the electronic filing system, which will transmit a Notice of
Electronic Filing to the following counsel of record:

                        Carlos E. Hernandez, Jr., P.C.
                The Law Offices of Carlos E. Hernandez, Jr., P.C.
                             200 East Cano Street
                           Edinburg, Texas 78539
                         carlos.hernandezjr@att.net


                                          /s/ Lawrence D. Smith
                                          Lawrence D. Smith
                                          Adam D. Boland


                     CERTIFICATE OF COMPLIANCE

       I hereby certify that I have reviewed the foregoing brief and concluded that
the factual statements in the brief are supported by competent evidence included in
the record. I further certify that the foregoing brief complies with Texas Rule of
Appellate Procedure 9.4, and contains 5,158 words.


                                      /s/ Lawrence D. Smith
                                      Lawrence D. Smith / Adam D. Boland



                                                                           21230297.1




                                        26
TAB 1
Accepted by: Alma Navarro                                                                                           Electronically Submitted
                                                                                                                      10/6/2014 11:47:43 AM
                                                                                                                Hidalgo County Clerks Office




                                                    CAUSE NO. CL-14-2498-B

           AIDA FLORES,                                                            IN COUNTY COURT
                 Plaintiff,

            vs.                                                                    AT LAW NO. 2

            ONEMAIN FINANCIAL, INC.
            and RAUL RINCON,
                  Defendants                                                       HIDALGO COUNTY, TEXAS


                    ORDER DENYING DEFENDANT'S MOTION TO COMPEL ARBITRATION
                                AND MOTION TO STAY LITIGATION



                       On this day, came to be heard DEFENDANT'S MOTION TO COMPEL ARBITRATION

            AND MOTION TO STAY LITIGATION. The Court, having considered the Motion and Plaintiff's

            Response, is of the opinion that Defendant's Motion is without merit and therefore should be

            DENIED.

                      IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that DEFENDANT' S

            MOTION TO COMPEL ARBITRATION AND MOTION TO STAY LITIGATION is hereby

            DENIED.

                                                                          2015
                      SIGNED the 1            day of APRIL               , 2044.




                                                                                   PRESID


                  cc: Carlos E. Hernandez, Jr., The Law Offices of Carlos E. Hernandez, Jr., P.C., 200 E. Cano St., Edinburg,
                      Texas 78539-4510 E-mail: hernandezirlawfirm@yahoo.com

                      Lawrence D. Smith, OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C., 2700 Weston Centre,
                      112 E. Pecan Street, San Antonio, Texas 78205 E-mail: larry.smithRogletreedeakins.com




                                                                                                                                94
