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Click here for the full text of this decision FACTS:Johnny Luna began working for Pol-Tex International, owned by Poly-America, as a plant operator, in Oct. 1998. Luna signed an employee handbook, which contained an arbitration clause. This clause was renewed in substance in Dec. 2002. Poly-America terminated Luna on Feb. 11, 2003. Luna felt he had been harassed before he was terminated, and so filed suit against Poly-America under Labor Code 451.001 for discrimination and retaliation. The trial court granted Poly-America’s motion to compel arbitration pursuant to the arbitration clause in the employee handbook. The trial court stayed the litigation in the meantime. Luna filed for a writ a mandamus, arguing individual provisions of the arbitration agreement are unconscionable, and that the entire agreement, when the provisions are taken as a whole, is unconscionable. Luna challenges five parts of the agreement: 1. a fee-splitting provision that caps the employee’s cost at the highest month’s salary of the preceding year; 2. a clause limiting available remedies; 3. a clause limiting discovery; 4. a provision disallowing an arbitrator’s application of a “good cause” standard to employment claims; and 5. making the arbitration agreements binding as to any future claims that the employee could bring, even for disputes arising after the employer-employee relationship had terminated. HOLDING:Writ conditionally granted. The court rejects Luna’s assertion that the fee-splitting provision is per se unconscionable because it could cost him as much as $4,550, which is his highest month’s salary from the prior year. Luna’s argument is based on the holding in In Re: Halliburton Co., 80 S.W.3d 566 (Tex. 2002), which found a $50 fee unconscionable. The court says the argument is based on the faulty logic that if $50 is unconscionable, then a fee that is 91 times great must be unconscionable, too. Instead, noting that other, more expensive fees have been upheld, the court says fee-splitting provisions are assessed on their own merits. Nonetheless, the court agrees that the provision in this case is unconscionable. Luna presented uncontroverted testimony that the arbitration process would cost the maximum capped amount, and that he would not be able to afford it. This places an oppressive burden on Luna. Accordingly, when determining whether the arbitration agreement as a whole was so one-sided as to render it substantively unconscionable, the costs provision weighs heavily toward a finding of substantive unconscionability. In assessing the provision that limits punitive damages and reinstatement remedies, the court disagrees with Luna that limiting remedies is not per se unconscionable. As cases such as Pony Express Courier Corp. v. Morris, 921 S.W.2d 817 (Tex.App. – San Antonio 1996, no pet.), show, Texas law does not require that all statutory remedies be provided in arbitration proceedings. Again, though, the court still finds the provision in this case unconscionable because it undermines the workers’ compensation system. Here, Poly-America is a subscriber to the system, which allows for punitive damages and reinstatement in certain circumstances. In effect, by limiting the remedies, Poly-America is trying to avoid certain provisions of the system while taking advantage of others. The court upholds another portion of that clause that shortens the statute of limitations because it applies equally to both parties. The court then turns to the provision that limits discovery. Luna claims the limitation benefits only Poly-America, but the court disagrees. Three provisions � 1. limiting each side to one deposition; 2. disallowing requests for admissions; and 3. requiring confidentiality on all aspects of arbitration � apply equally to both parties. The provision that limits discovery of Poly-America’s financial information does benefit only Poly-America, but Luna has not shown how his claim for retaliation and discrimination will be prejudiced by his not having access to that information. Consequently, the discovery limitations provision is satisfactory. Reviewing the provision that eliminates the use of the “good cause” standard for analyzing Luna’s termination is not unconscionable where Luna was an at-will employee. The clause does not prohibit the arbitrator from inquiring into the reason for Luna’s termination. The provision extending the arbitration agreement to all future claims is proper, too, the court finds, as it applies equally to both parties. The court then reviews the unconscionability of the agreement as a whole. It is not the number of provisions weighing toward an overall finding of substantive unconscionability that matters as much as the cumulative one-sidedness of the burden that those provisions place on a party, the court finds. “Here, the high cost of arbitration, combined with the limitation of damages and reinstatement in the agreement, essentially deprive Luna of the opportunity to vindicate his claim effectively in the arbitral forum under the Texas Labor Code. Such deprivation is not consistent with the strong legislative policy behind the Worker’s Compensation Act. . . . Although Luna has not shown that any of the other provisions is so one-sided in Poly-America’s favor as to be substantively unconscionable, the one-sidedness of the cost and remedy provisions tend to render the agreement as a whole unconscionable under the facts and circumstances of this case.” The court then finds that the offending provisions cannot be severed from the agreement to save it. OPINION:Taft, J.; Taft, Keyes and Bland, JJ.

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