In Re Macy's Texas, Inc. (Tex. 2009),
No. 08-0584 (Tex. Jun. 26, 2009)(per curiam)(arbitration mandamus granted)(employer's motion to
compel arbitration should have been granted in employment-related personal injury case)(dispute over
correct identification of employer in connection with arbitration agreement under the FAA does not defeat
employee's obligation to submit to arbitration even though defendant offered only conclusory affidavit as
to entity names and relationship of different corporations; arb agreement did not specifically identify the
plaintiff's particular employer by name.)
THE GIST: Tomsic offers no explanation why she would agree with anyone other
than her employer on a health-benefits plan or arbitration for on-the-job injuries.
Her suit asserts failure to provide proper equipment and a safe workplace — both
nondelegable duties owed by her employer. See Gen. Elec. Co. v. Moritz, 257 S.W.
3d 211, 215 (Tex. 2008). As Tomsic agreed to arbitrate with her employer and
purported to sue her employer, she cannot avoid arbitration by raising factual
disputes about her employer’s correct legal name.
IN RE MACY'S TEXAS, INC.; from Bexar County; 4th district (04-08-00469-CV, ___ SW3d ___, [per
curiam opinion of the San Antonio Court of Appeals denying mandamus relief] 07-23-08)
stay order issued October 10, 2008, lifted
Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court
conditionally grants the petition for writ of mandamus.
Per Curiam Opinion [3 pgs in pdf]
See Electronic Briefs in IN RE MACY'S TEXAS, INC. (Tex. 2009) } Opinion in pdf (
BLOG POSTS RE: In re Macy's Texas, Inc. (Tex 2009)
Texas Supreme Court Rules on Arbitration of Tort Claims in Employment Contract (Disputing blog by Karl
Bayer)("The Supreme Court of Texas held that a post-injury arbitration acknowledgment agreement is
valid and compelled arbitration of tort claims within the context of an employment contract. . . . Because
this case was decided under the Federal Arbitration Act, and not under the Texas Arbitration Act, post-
injury arbitration agreements don’t have to be signed by each party’s attorneys.")
ID of Party to Arbitration Pact Doesn't Matter, Texas Supremes Hold (Blawgletter® Barry Barnett)
("Something bothers Blawgletter about the decision. It looks sloppy. The defect in our view didn't involve
a question of an "employer's correct legal name." It instead concerned a basic failure to agree on who
the contract binds. The case should have turned on whether the actual defendant also in fact employed
the plaintiff. We concede that the court might have decided the mandamus under the doctrine of
equitable estoppel, which allows non-signatories of arbitration agreements to enforce them. But it didn't.
Sloppy.")
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In Re Macy's, Inc. (Tex. 2009)(per curiam)
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PER CURIAM
Erica Tomsic alleges injury to her back while working as an employee at a Macy’s department store in
April 2007. On May 9, 2007, she signed an “Arbitration Acknowledgment” stating she had “received and
read (or had the opportunity to read) the Summary Plan Description . . . for the Federated Department
Stores, Inc. Injury Benefit Plan for Texas Employees, effective February 1, 2005.”[1] In the one-page
Acknowledgment, she agreed to “immediately report to my supervisor” any accidents involving
employees, customers, or herself. She also acknowledged that the Plan required arbitration of on-the-job
injuries against “the Company.” On page 1 in bold black lettering, the Plan defined “the Company” as
“your particular employer”:
All Texas employees of Federated Department Stores, Inc, Macy’s West, Inc., and Federated Systems
Group, Inc. will be covered by this program. References to the word “Company” in this booklet will mean
your particular employer.
Tomsic nevertheless sued her employer in court, naming Macy’s Texas, Inc. as her employer and the
only defendant. At a hearing on the latter’s motion to compel arbitration, she argued that she was not
employed by any of the entities the Plan expressly named, and offered pay stubs showing she was paid
by “Macy’s South, Paying Agent for Macy’s TX I, L.P.” In response, the defendant presented an affidavit
by an assistant manager for human relations at Tomsic’s store who said he was an employee of “Macy’s
South,” Tomsic was an employee of “Macy’s West,” and that both entities were retail divisions of Macy’s
Inc., formerly known as Federated Department Stores, Inc. The trial court denied the motion to compel
arbitration, and the court of appeals denied mandamus relief. __ S.W.3d __.
We agree with Tomsic that the affidavit alone is insufficient to require relief. While the trademark laws
make it hard to believe Macy’s South or Macy’s West are not affiliated with Macy’s Inc., it was the
defendant’s burden to prove they were. See In re Weekley Homes, L.P., 180 S.W.3d 127, 130 (Tex.
2005). On that issue the affidavit was conclusory rather than conclusive, failing to establish any basis for
the affiant’s knowledge of corporate structure or attach any supporting documents whatsoever. And even
if they were affiliates, treating affiliates as one entity for purposes of arbitration may be inconsistent with
their separate creation. See In re Merrill Lynch Trust Co. FSB, 235 S.W.3d 185, 191 (Tex. 2007).
But in this case the Plan itself stated that “the Company” would mean “your particular employer.” This
definition is certainly nonspecific, but it serves to avoid the kind of disputes about corporate divisions and
affiliates that Tomsic tries to raise here. The FAA contains no requirements for the form or specificity of
arbitration agreements except that they be in writing; it does not even require that they be signed. See 9
U.S.C. § 2; Seawright v. Am. Gen. Fin. Servs., Inc., 507 F.3d 967, 978 (6th Cir. 2007) (citing cases from
the 2nd, 5th, 7th, and 10th Circuits). But in this case the defendant’s affidavit establishes that the
Acknowledgment was signed “For the Company” by an assistant manager at the Macy’s store where
Tomsic worked.
Tomsic offers no explanation why she would agree with anyone other than her employer on a health-
benefits plan or arbitration for on-the-job injuries. Her suit asserts failure to provide proper equipment
and a safe workplace — both nondelegable duties owed by her employer. See Gen. Elec. Co. v. Moritz,
257 S.W.3d 211, 215 (Tex. 2008). As Tomsic agreed to arbitrate with her employer and purported to sue
her employer, she cannot avoid arbitration by raising factual disputes about her employer’s correct legal
name.
Accordingly, without hearing oral argument, Tex. R. App. P. 52.8(c), we conditionally grant the petition for
writ of mandamus and direct the trial court to enter an order compelling arbitration. We are confident the
trial court will comply, and our writ will issue only if it does not.
OPINION DELIVERED: June 26, 2009
[1] The Plan’s effective date predated her injury, even though her Acknowledgment did not. As it is
undisputed that the Plan adopted the Federal Arbitration Act, the limitations on such post-injury
agreements in the Texas Act do not apply. See Tex. Civ. Prac. & Rem. Code § 171.002(c) (prohibiting
post-injury arbitration agreements unless signed by each party’s attorney).
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OPINION OF THE [SAN ANTONIO] COURT OF APPEALS BELOW
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This proceeding arises out of Cause No. 2007-CI-18427, styled Erica Tomsic 1 v. Macy’s Texas, Inc.,
pending
in the 150th Judicial District Court, Bexar County, Texas, the Honorable Gloria Saldaña presiding.
MEMORANDUM OPINION
No. 04-08-00469-CV,
IN RE MACY’S TX I, L.P. and Macy’s Texas, Inc.
Original Mandamus Proceeding1
PER CURIAM
Sitting: Alma L. López, Chief Justice
Sandee Bryan Marion, Justice
Phylis J. Speedlin, Justice
Delivered and Filed: July 23, 2008
PETITION FOR WRIT OF MANDAMUS DENIED
Relators seek mandamus relief from the trial court’s order denying their motion to compel
arbitration. Relators assert that the real-party-in-interest, Erica Tomsic, was a party to the Federated
Department Stores, Inc. Injury Benefit Plan for Texas Employees (the “Plan”) which contained a
binding arbitration provision applicable to the claims asserted in the underlying lawsuit. By its
terms, the Plan applied to “All Texas employees of Federated Department Stores, Inc., Macy’s West,
Inc. and Federated Systems Group, Inc.” From the evidence presented, the trial court did not clearly
abuse its discretion in finding that Tomsic was not a party to the Plan because she was employed by
Macy’s Texas I, L.P. See Verity Solutions, L.L.C. v. TASC, Inc., 2006 WL 488396, at *4 (W.D. Tex.
04-08-00469-CV -2-
Feb. 6, 2006) (denying motion to compel arbitration where arbitration agreement referred only to
parent company of employee not employees of parent company and its affiliates and subsidiaries);
see also In re Merrill Lynch Trust Co. FSB, 235 S.W.3d 185, 191 (Tex. 2007) (holding claims
against affiliates were not subject to arbitration).
At the hearing before the trial court, relators’ attorney argued “that once we show this
acknowledgment [of the Plan] being signed and we show a connection between this and where she
worked, either a general name or a specific name, we have before you a sworn document that
actually proved up and said that Federated underwent a name change and became Macy’s. That’s
all that we’re required to prove.” Relators’ attorney appeared to be arguing that the Plan was
applicable to any Macy’s store employee regardless of the actual corporate identity of the employee’s
employer. As the Texas Supreme Court has noted, however, “corporate affiliates are generally
created to separate the business, liabilities and contracts of each.” In re Merrill Lynch Trust Co.
FSB, 235 S.W.3d at 191. Although relators presented the trial court with an affidavit stating that
Tomsic was an employee of “Macy’s West, a retail division of Macy’s, Inc., formerly known as
Federated Department Stores, Inc.,” Tomsic presented the trial court with her paystubs which were
from “Macy’s South, Paying Agent for Macy’s TXI, LP.” This court may not reconcile disputed
factual matters in mandamus proceedings, and a trial court does not abuse its discretion if it bases
its decision on conflicting evidence and some evidence supports its decision. In re Angelini, 186
S.W.3d 558, 560 (Tex. 2006); In re Drake, 195 S.W.3d 232, 235 (Tex. App.—San Antonio 2006,
mand. denied).
04-08-00469-CV -3-
Therefore, the court is of the opinion that relief should be denied. Relators’ petition for writ of
mandamus and motion for temporary relief are denied. Relators shall pay all costs incurred in this
proceeding.
PER CURIAM