Phelps Dodge Magnet Wire Company, a division of Phelps Dodge Industries, Inc. v. Jose Gomez--Appeal from 327th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

PHELPS DODGE MAGNET WIRE COMPANY, A DIVISION OF PHELPS DODGE INDUSTRIES, INC.,

Appellant,

v.

JOSE GOMEZ,

Appellee.

No. 08-05-00193-CV

Appeal from the

327th District Court

of El Paso County, Texas

(TC# 2004-2408)

O P I N I O N

This is an interlocutory appeal from the trial court s denial of a motion to compel arbitration. For the reasons stated below, we dismiss the appeal.

I. FACTUAL AND PROCEDURAL BACKGROUND

In July of 1996, Jose Gomez, Appellee, was hired by Phelps Dodge as a mechanic. Appellee only speaks Spanish and during his time with Phelps Dodge, he communicated with his co-workers and human resources personnel in Spanish. According to Appellee, the employee handbook containing Phelps Dodge s arbitration policy was not provided to him in Spanish; he represents that he did not understand the policy, and further, that it was not until he was deposed that he had heard of such policy.

On April 26 or 27, 2002, Appellee sustained a job-related injury and filed a workers compensation claim. On June 27, 2003, he was advised that he was being laid off due to slow work. Phelps Dodge also fired Alfredo Chavelle, // another mechanic who similarly, is also in his sixties and had also filed a workers compensation claim. Believing age and his filing of a workers compensation claim were the motivating factors in his termination, Appellee filed a charge of discrimination with the Equal Employment Opportunity Commission. The EEOC issued a notice of right to sue. Thereafter, Appellee filed suit against Phelps Dodge alleging age discrimination in violation of Texas Labor Code Chapter 21 and retaliatory discharge.

Phelps Dodge filed a Motion to Compel Arbitration claiming Appellee received an employee handbook which described the company s policy of employment dispute resolution. Appellee signed an acknowledgment form stating he received the employee handbook and he also signed an attendance sheet for the information session held by Phelps Dodge regarding the new handbook. According to Phelps Dodge, the company policy provided for resolution of the problem through a company appeal board or professional arbitrator. The trial court denied the motion.

II. DISCUSSION

This Court s opinion in Phelps Dodge Magnet Wire Co. v. Chavelle, No. 08-04-00373-CV, 2005 WL 2402671 (Tex. App.--El Paso Sept. 29, 2005, no pet.) is factually similar and the issues on appeal are substantially identical to the issues brought forth in the case at hand. In that case, we found that the Federal Arbitration Act (FAA) applied and that mandamus was the appropriate method of recourse. See id., at *1. As such, we dismissed the interlocutory appeal for want of jurisdiction. Id. In this case, we defer to our analysis in Chavelle and for the reasons stated in that opinion, we dismiss this interlocutory appeal for want of jurisdiction.

RICHARD BARAJAS, Chief Justice

April 13, 2006

Before Panel No. 5

Barajas, C.J., McClure, and Ables, JJ.

Ables, J., sitting by assignment