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Click here for the full text of this decision FACTS: Granite Construction Co. challenges the denial of its motion to compel arbitration of a wrongful discharge claim pursued by Milton Beaty in the 1st District Court of Jasper County. Granite filed a petition for writ of mandamus, asking this court to direct the trial court to vacate the order denying the motion to compel and to enter an order compelling the parties to proceed to arbitration under the Federal Arbitration Act, and contemporaneously pursued an interlocutory appeal under the Texas Arbitration Act. Granite initiated an Employee Dispute Resolution Program in 1995. The EDRP requires employee disputes that are not resolved through Granite’s internal process to be submitted to the American Arbitration Association for either mediation or arbitration. Beaty continued to work for Granite after the effective date of the EDRP. He sustained an on-the-job injury in 1996 and received workers’ compensation benefits and medical treatment pursuant to workers’ compensation. Beaty did not return to the job after receiving a doctor’s release for light duty work because he was not willing to give up the workers’ compensation benefits he was receiving. He resigned several months later and in 1999 sued Granite for wrongful termination. HOLDING: The appeal is dismissed for lack of jurisdiction. The petition for writ of mandamus is conditionally granted. Beaty resides in Texas. Granite is a California corporation with branch offices in four states, and operations nationwide. Granite’s operations include construction of bridges and highways. Beaty was working as construction superintendent on a bridge construction project when he sustained the on-the-job injury. In light of these facts, the court concludes that Beaty’s employment contract with Granite relates to interstate commerce and the alleged arbitration agreement is subject to the FAA. It follows that the TAA does not govern the arbitration agreement and this court therefore lacks jurisdiction over the interlocutory appeal. Beaty continued to work for Granite after the relator established the dispute resolution program. Beaty argued that Granite failed to prove that he personally received the documents, but Granite offered evidence that it mailed the documents to Beaty at his home address, and there is no evidence in the record that Beaty did not receive them. The Texas Supreme Court held that an arbitration agreement existed between the parties in a case with a dispute resolution program established in a similar manner. In Re: Halliburton Co., 80 S.W.3d 566 (Tex. 2002), cert. denied, Myers v. Halliburton Co., 537 U.S. 1112 (2003). This, too, “is not a case in which the written notice was contradicted by other written or oral communications between the employer and the employee.” Beaty did not challenge the consideration for the agreement or suggest that the arbitration agreement was supported by an illusory promise. The court concludes that an arbitration agreement existed between the parties. Beaty’s wrongful discharge claim falls within the scope of the arbitration agreement. OPINION: McKeithen, C.J.; McKeithen, C.J., Burgess and Gaultney, JJ. DISSENT: Burgess, J. “I respectfully dissent. I do not believe mandamus, No. 09-03-532 CV, lies in this instance, but interlocutory appeal is the correct vehicle. Mandamus will lie only if this dispute is subject to the Federal Arbitration Act rather than the Texas Arbitration Act. The majority notes Beaty “argues that the TAA applies because his employment was wholly within the State of Texas, and his cause of action arose in this state and involves construction of a state statute.” Not only does Beaty make those arguments, they are fact. Yet the majority concludes “Beaty’s employment contract with Granite relates to interstate commerce” based upon the following facts: “Granite is a California corporation with branch offices in four states, and operations nationwide. Granite’s operations include construction of bridges and highways. Beaty was working as construction superintendent on a bridge construction project when he sustained the on-the-job injury.” These facts relating to interstate commerce are as tenuous as those in In Re: Nasr, 50 S.W.3d 23 (Tex. App. � Beaumont 2001)(orig. proceeding) (Burgess, J. dissenting). The majority should reject the mandamus in this instance and overrule Nasr.”

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