On November 22, 2013, Lisa Luxenburg, filed a petition for writ of mandamus with the Fourteenth Court of Appeals in Houston, Texas (No. 14-13-01050-CV). Ms. Luxenburg who was injured while working for JC Penney originally filed suit in the 334th District Court of Harris County, Texas. Because JC Penney does not carry workers’ compensation insurance, its workers do not receive workers compensation benefits and must seek compensation for their injuries through the court system. Shortly after suit was filed, JC Penney filed a motion to Abate Proceedings and Compel Arbitration asserting that Ms. Luxenburg’s claims must be arbitrated under the Federal Arbitration Act.
Evidence offered at the hearing on August 9, 2013, showed that Ms. Luxenburg’s job duties involved the movement of goods in interstate commerce, a fact which JC Penney did not dispute. Indeed, JC Penney’s Texas Worker Injury Plan specifically states that “The participating Employers are engaged in transactions involving interstate commerce (for example, purchasing goods and services from outside Texas which are shipped to Texas, and providing goods and services to customers from other states) and your employment involves such commerce.” Section 1 of the Federal Arbitration Act specifically excludes workers engaged in the movement of goods in interstate commerce from being forced to arbitrate.
Despite the undisputed evidence, on October 7, 2013, Judge Ken Wise, who was appointed judge of the 334th District Court by Governor Rick Perry, entered an order forcing Ms. Luxenburg to arbitrate her claims. Ms. Luxenburg, who is represented by Sammons & Berry, P.C., filed an appeal requesting that the Court of Appeals reverse the trial court’s order. Ms. Luxenburg and her attorneys cite numerous cases including prior cases from the Fourteenth Court of Appeals which hold that workers engaged in the movement of goods in interstate commerce cannot be forced to arbitration.
Shortly after the appeal was filed, Judge Ken Wise was appointed by Governor Rick Perry to the Court of Appeals. Governor Perry then appointed Grant Dorfman as judge of the 334th District Court. Because of the change in judges, on December 5, 2013, the Fourteenth Court of Appeals entered an order abating the appeal for 30 days to allow the new judge to reconsider the order upon which the appeal is based. On January 8, 2014, the Court of Appeals entered a second order noting that “More than thirty days have passed since the date of the abatement order. The new presiding judge of the 334th District Court has not advised the Court of the action taken on relator’s request. Therefore, the abatement of this case is continued for a period of twenty days, at which time the new presiding judge shall advise the Court of the action taken on relator’s request.” On January 29, 2014, Ms. Luxenburg through her attorneys filed a motion with the Fourteenth Court of Appeals noting that the trial court still had not taken any action and requesting that the Petition for Writ of Mandamus be reinstated.
Because of their ability to delay and possibly avoid liability altogether, many corporations in Texas are refusing to get workers’ compensation insurance coverage and instead are seeking to hide behind the shield of forced arbitration clauses, such as the one relied on by JC Penney in this case. For more information regarding how forced arbitration clauses are being used increasingly by large corporations in Texas to deprive working men and women of their right to trial, go to:
The actual appeal and orders referenced above are available through the following links: