Dickerson v. New Centry Energies

*Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
October 3, 2003
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
No. 02-11002
ROBERT D. DICKERSON,
Plaintiff-Appellant, Cross-Appellee,
versus
NEW CENTURY ENERGIES,
Defendant-Appellee, Cross-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
(2:98-CV-408)
Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Robert D. Dickerson was an employee of Southwestern Public
Service Company (SPS) before it merged with New Century Energies
(NCE). Pre-merger, Dickerson entered into an employment agreement
with SPS; it is undisputed that NCE must perform under it.
For the bench trial at issue, findings of fact are reviewed
for clear error; conclusions of law, de novo. E.g., Kona Tech.
Corp. v. S. Pac. Transp. Co., 225 F.3d 595, 601 (5th Cir. 2000).

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As hereinafter discussed, and essentially for the reasons given by
the district court, there was no reversible error.
For starters, concerning NCE’s cross-appeal, the agreement is
not governed by ERISA.
The agreement provided that Dickerson’s base salary increases
would be “substantially consistent” with those awarded other key
employees “in the ordinary course of business”. Dickerson claims
he did not receive increases as were provided to other such
employees, namely Helton. First, NCE’s counsel’s closing argument
statements regarding whether Helton’s raises were in the ordinary
course of business did not constitute a judicial admission: the
statements were not a clear concession; they did not prejudice how
the case was litigated. Second, the district court did not clearly
err in finding that Helton’s raise was not in the ordinary course
of business, given that Helton changed positions within the company
and assumed substantially more responsibility. Finally, the
district court did not clearly err in finding that Dickerson should
have received a raise of 12.5 percent, followed by one of 17.78
percent, the same percentages as key employee Wilks.
For the contention that the district court erred in
calculating damages for the incentive portion of the agreement,
that portion provided that compensation and benefits to Dickerson
be, in the aggregate, at least as favorable as the most favorable
compensation provided other key employees. The district court did

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not clearly err in excluding the stock option awards provided
Helton, because there was no requirement that the benefits to
employees be equal or even similar. Moreover, the district court
did not clearly err in finding that Dickerson was entitled to stock
options based on the same percentage as used for key employee
Ridings, because he had a position similar to Dickerson.
AFFIRMED

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