     Case: 19-40075      Document: 00515128779         Page: 1    Date Filed: 09/23/2019




           IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT


                                    No. 19-40075
                                  Summary Calendar
                                                                     United States Court of Appeals
                                                                              Fifth Circuit

                                                                            FILED
                                                                    September 23, 2019
GILBERT GALAN, JR.,
                                                                       Lyle W. Cayce
                                                                            Clerk
              Plaintiff - Appellant

v.

VALERO SERVICES, INCORPORATED; VALERO ENERGY
CORPORATION,

              Defendants - Appellees



                   Appeal from the United States District Court
                            Southern District of Texas
                             USDC No. 2:17-CV-256


Before WIENER, HAYNES, and COSTA, Circuit Judges.
PER CURIAM:*
       Gilbert Galan, Jr. sued Valero Services, Inc., for failing to pay overtime.
Valero responded by invoking a mandatory arbitration clause covering claims
by its employees. Galan contended that he lacked notice of the arbitration
requirement.      So the district court had a jury decide whether Galan had




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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sufficient notice of the arbitration requirement. The jury found that he did.
We AFFIRM.
                                       I.
      Valero adopted a new workplace dispute resolution program in 2002,
eight years after Galan began working for Valero and fifteen years before his
employment ended. Under that program, called “Dialogue,” Valero required
employees to resolve employment disputes through arbitration.            A Texas
employer may impose mandatory arbitration upon at-will employees as a
condition of future employment if the employees have “unequivocal[]” notice of
the change and continue their employment. See Hathaway v. Gen. Mills, Inc.,
711 S.W.2d 227, 229 (Tex. 1986).
      At trial, Galan testified that he lacked notice of the arbitration
requirement. He admitted that he knew a program called “Dialogue” existed,
but thought it was a program for addressing interpersonal conflict, preventing
workplace violence, or helping depressed employees.
      Valero produced evidence showing that it notified employees about the
arbitration provision in the following ways: it (1) mailed a brochure to all
employees that detailed the Dialogue program and the arbitration
requirement; (2) referred to the Dialogue program in its employee guide, which
was distributed to all employees; (3) posted a description of the program on its
internal website, which employees could access from their home pages by
clicking a link titled “Dialogue Dispute Resolution Program”; and (4) placed
posters describing the program throughout Galan’s workplace.
      After Valero presented its evidence, Galan moved for judgment as a
matter of law, which the district court denied.
      The jury charge asked whether the jury “Valero prove[d] by a
preponderance of the evidence that it gave unequivocal notice to Gilbert Galan,
Jr. of definite changes in employment terms regarding Valero’s Dialogue
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                                 No. 19-40075
program[.]” Galan sought more specificity, objecting to the absence of the word
“arbitration,” but the district court did not add that word. The instructions
elsewhere told the jury that the “sole issue in this trial is whether Defendant[]
Valero . . . notified plaintiff of the arbitration program and its mandatory
nature.” The jury answered “yes” to the special interrogatory asking if Galan
had unequivocal notice.
      Following the verdict, Galan renewed his motion for judgment as a
matter of law and alternatively moved for a new trial. The district court denied
both motions. On appeal, Galan challenges the jury instructions, sufficiency
of the evidence, and refusal to grant him a new trial.
                                       II.
      We review challenged jury instructions for abuse of discretion. United
States v. Wright, 634 F.3d 770, 775 (5th Cir. 2011). Reversal is appropriate if
the district court denied a requested instruction that “(1) was a substantially
correct statement of the law, (2) was not substantially covered in the charge as
a whole, and (3) concerned an important point in the trial such that the failure
to instruct the jury on the issue seriously impaired the defendant’s ability to
present a given defense.” Cooper Indus., Inc. v. Tarmac Roofing Sys. Inc., 276
F.3d 704, 714 (5th Cir. 2002). We read the jury instructions “as a whole and
in conjunction with” the entire charge. Dreiling v. Gen. Elec. Co., 511 F.2d 768,
774 (5th Cir. 1975).
      The district court did not abuse its discretion in declining to mention
“arbitration” in the special interrogatory. Galan’s argument is that the special
interrogatory did not ask the correct question because it inquired only whether
he had unequivocal notice of Valero’s “Dialogue Program”; it did not focus on
notice of the program’s arbitration requirement. His point is that the jury
could have concluded Galan knew about the Dialogue Program as a whole, but
not the part of it requiring arbitration. The problem with this argument is that
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                                 No. 19-40075
the instructions as whole, not to mention the entire trial, made clear that the
disputed issue was notice of the arbitration provision. Eliminating any doubt,
the court told the jury that the “sole issue in this trial is whether Defendant[]
Valero . . . notified plaintiff of the arbitration program and its mandatory
nature.” The court therefore did not abuse its discretion in denying Galan’s
requested modification to the jury question.
                                      III.
      Judgment as a matter of law is appropriate when a reasonable jury could
not find for the nonmovant. FED. R. CIV. P. 50(a). We review a denial of a
motion for judgment as a matter of law de novo. Seibert v. Jackson Cty., 851
F.3d 430, 434−35 (5th Cir. 2017). But as the trial court must do when deciding
such a motion, we view the evidence in the light most favorable to the verdict.
Dresser-Rand Co. v. Virtual Automation Inc., 361 F.3d 831, 838–39 (5th Cir.
2004).
      The record contains ample evidence supporting the jury’s finding that
Galan had unequivocal notice of Valero’s mandatory arbitration program.
Valero produced evidence that it mailed brochures, provided employees access
to guides and websites, and hung posters around Galan’s workplace. Galan’s
argument that there is no direct evidence he received notice via the mailing or
other various methods neglects that a fact may be proven circumstantially and
that the jury determines facts and draws inferences in the face of competing
evidence.
                                      IV.
      Under Texas law, a motion for a new trial should be granted for “good
cause.” TEX. R. CIV. P. 320; In re Bent, 487 S.W.3d 170, 175−78 (Tex. 2016)
(reviewing cases); see also Foradori v. Harris, 523 F.3d 477, 497−98 (5th Cir.
2008) (holding that state law determines whether a motion for a new trial


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should be granted in a diversity action). We review a district court’s denial of
a motion for a new trial for abuse of discretion. Id. at 497.
      Galan asserts the same arguments in seeking a new trial as he does for
reversing the district court’s other rulings.     The court did not abuse its
discretion in declining to grant a new trial based on these unsuccessful claims.
                                      ***
      The judgment is AFFIRMED.




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