ACCEPTED

04-23-00824-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
10/4/2023 3:39 PM

NO. 04-23-00824-CV

FILED IN
4th COURT OF APPEALS
SAN ANTONIO, TEXAS
IN THE COURT OF APPEALS OF TEXAS10/4/2023 3:39:54 PM
MICHAEL A. CRUZ
FOURTH JUDICIAL DISTRICT, SAN ANTONIO, TEXAS Clerk

VICTORY CAPITAL MANAGEMENT, INC.,

Appellant,

vs.

JULIANNE BASS

Appellee.

APPELLANT’S BRIEF

Adam D. Boland
State Bar No. 24045520
[email protected]
Soña Ramirez
State Bar No. 24040330
[email protected]
Charlie Hayes
State Bar No. 24116496
[email protected]
CLARK HILL PLC
2301 Broadway St.
San Antonio, Texas 78215-1157
(210) 250-6000
(210) 250-6100 (facsimile)

Attorneys for Appellant

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 IDENTITY OF PARTIES AND COUNSEL

So this Court may determine disqualification and recusal, Appellant certifies

this as a complete list of the parties and their counsel:

APPELLANT:

Victory Capital Management, Inc. (“Victory Capital”).

COUNSEL FOR APPELLANT VICTORY CAPITAL:

Adam D. Boland
State Bar No. 24045520
[email protected]
Soña Ramirez
State Bar No. 24040330
[email protected]
Charlie Hayes
State Bar No. 24116496
[email protected]
CLARK HILL PLC
2301 Broadway St.
San Antonio, Texas 78215-1157
Tel: (210) 250-6000
Fax: (210) 250-6100

APPELLEE:

Julianne Bass (“Bass”).

COUNSEL FOR APPELLEE BASS:

Thomas J. Crane
State Bar No. 05007320
[email protected]
LAW OFFICE OF THOMAS J. CRANE
900 N.E. Loop 410, Suite D306
San Antonio, Texas 78209
Tel: (210) 736-1110
Fax: (210) 745-4258
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 TABLE OF CONTENTS

Identities of Parties and Counsel............................................................................... ii

Table of Contents ..................................................................................................... iii

Table of Authorities ................................................................................................... v

Statement of the Case............................................................................................. viii

Statement Regarding Oral Argument .................................................................... viii

Issue Presented ..........................................................................................................ix

Statement of Facts ...................................................................................................... 1

Summary of the Argument......................................................................................... 3

Argument and Authorities.......................................................................................... 4

I. Standard of Review ............................................................................... 4

II. Appellee Did Not Plausibly Allege Sexual Harassment,

and Therefore, the EFAA Does Not Apply ........................................... 5

A. There is No Dispute that a Valid Arbitration

Agreeemtn Exists ........................................................................ 5

B. The Ending Forced Arbitration of Sexual Assault

and Sexual Harassment Act ........................................................ 6

C. Sexual Harassment Definition .................................................... 7

D. The EFAA Does Not Apply where the Claimant

Fails to Plausible Plead Sexual Harassment ............................... 8

E. The EFAA Does Not Apply Appellee's Claims ....................... 10

Conclusion and Prayer ............................................................................................. 13

Certificate of Compliance ........................................................................................ 15

Appendix

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 A. Order granting Appellee Julianne Bass’s Motion to Lift Stay and
Reinstate Lawsuit

B. Employment Agreement

C. 9 U.S.C. § 401

D. 9 U.S.C. § 402

E. TEX. LABOR CODE § 21.141

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 TABLE OF AUTHORITIES

CASES

Cantella & Co. v. Goodwin,

924 S.W.2d 943 (Tex. 1996) (orig. proceeding) .................................... 6

Garcia v. Huerta,
340 S.W.3d 864 (Tex. App.—San Antonio 2011, pet. denied).............. 4

Harvill v. Westward Communications, L.L.C.,

433 F.3d 428 (5th Cir. 2005) .................................................................. 8

Holmes v. N. Tex. Health Care Laundry Coop. Ass'n,

304 F. Supp. 3d 525 (N.D. Tex. 2018) ................................................... 8

In re Labatt Food Serv., L.P.,

279 S.W.3d 640 (Tex.2009) (orig. proceeding) ..................................... 4

Marquez v. Voicestream Wireless Corp.,

115 Fed. Appx. 699 (5th Cir. 2004) ................................................. 8, 12

Pennzoil Co. v. Arnold Oil Co., Inc.,

30 S.W.3d 494 (Tex. App. - San Antonio 2000, no pet.) ....................... 5

Pepe v. New York Life Insurance Co.,

2023 WL 1814879 (E.D. La. Feb. 7, 2023) .................................... 10, 13

Pre-Paid Legal Services, Inc. v. Cahill,

786 F.3d 1287 (10th Cir. 2015) .............................................................. 4

Vets Securing Am., Inc. v. Smith,

632 S.W.3d 272
(Tex. App.—Corpus Christi–Edinburg 2021, pet. denied) .................... 4

Wyerick v. Bayou Steel Corp.,

887 F.2d 1271 (5th Cir.1989) ................................................................ 8

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Yost v. Everyrealm, Inc.,
No. 22 CIV. 6549 (PAE)
2023 WL 2224450 (S.D.N.Y. Feb. 24, 2023) ............................ 9, 12, 13

Ysleta Indep. Sch. Dist. v. Monarrez,

177 S.W.3d 915 (Tex. 2005) ................................................................ 12

STATUTES

9 U.S.C. § 401 ................................................................................................. 7

9 U.S.C. § 402 ....................................................................................... 3, 7, 13

29 C.F.R. § 1604.11(a).................................................................................... 8

TEX. CIV. PRAC. & REM. CODE § 51.016 ......................................................... 4

TEX. LABOR CODE § 21.141(2).................................................................. 7, 12

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 STATEMENT OF THE CASE

Appellee Julianne Bass (“Appellee”) sued Victory Capital Management, Inc.

(“Appellant”), her former employer, asserting claims for age and sex/gender

discrimination under Texas Labor Code Sections 21.051 & 21.055. CR.51. During

her employment, Appellee signed a valid arbitration agreement. CR.71-81. On May

26, 2023, Appellant filed an unopposed motion to compel arbitration and stay

Appellee’s lawsuit. CR.20-24. This motion was granted. CR.30. On July 14, 2023,

after not opposing the motion to compel arbitration, Appellant filed her motion to

lift stay and reinstate lawsuit seeking to remove the case from arbitration. CR.25-28.

The motion was granted on August 11, 2023. CR.82-84.

1
CR [Page Number] refers to Clerk’s Record.
RR [Page Number] refers to Reporter’s Record.

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 STATEMENT REGARDING ORAL ARGUMENT

Appellant believes that the Court can resolve this appeal based on the record

and briefing. Appellant, however, is willing to participate in oral argument should

the Court decide that it is necessary or helpful in resolving this matter.

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 ISSUE PRESENTED

Did the trial court err in granting Appellee’s motion to lift stay and reinstate

lawsuit? Specifically, did Appellee adequately plead sexual harassment such that her

claims are governed by the Ending Forced Arbitration of Sexual Assault and Sexual

Harassment Act and not subject to arbitration?

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 STATEMENT OF FACTS

Appellee worked for Appellant and its predecessor entity, USAA, beginning

in 1999. CR.9 & 93. Appellee became the Senior Portfolio Manager and Vice-

President in 2017. CR. 93. In that position, Appellee managed investments held by

USAA members. Id. After Appellant acquired USAA investments, on January 7,

2019, Appellee signed an employment agreement, which included a valid arbitration

provision (hereinafter, the “Arbitration Agreement”). CR.71-81. The Arbitration

Agreement states, in part, as follows:

This Agreement shall be governed by the laws of the State of Texas,

without regard to any conflicts of law principles. All disputes and
claims of any nature that you (or your transferee or estate) may have
against the Company Group arising out of or in any way related to your
employment with the Company Group shall be submitted to and
resolved exclusively by binding arbitration conducted in San Antonio,
Texas (or such other location as the parties thereto may agree) in
accordance with the applicable rules of the American Arbitration
Association then in effect . . .

CR.77.

On June 17, 2022, Appellee filed a Charge of Discrimination (hereinafter, the

“Charge”) against Appellant with the Equal Employment Opportunity Commission

(“EEOC”). CR.41-42. In the Charge, Appellee alleged that her revenue had been cut

in half, her supervisors favored younger workers, she was being set up for failure

because she was removed from managing a certain investment fund, and she was

instructed to help improve the morale of a male colleague. Id. On January 27, 2023,

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Appellee filed her original petition against Appellant alleging age and sex/gender

discrimination. CR.5-16. The original and amended petition asserted generally the

same allegations as the Charge which can be summarized as follows: she was told

by her supervisor in 2017 that she “needed to not be seen as driven or opinionated”

and instead needed to be “really, really nice.” CR.93 at ¶32; she was accused by co-

workers of making unsupported accusations of sexism. CR.94 at ¶37; her supervisor

expected her to speak up at team meetings but did not expect the same of her male

colleagues. CR.94 at ¶38; her supervisor raised his voice at her but never to her male

colleagues. Id.; her supervisor “made a joke about sex harassment regarding a

mandatory training session on sex harassment.” CR.94 at ¶39; a co-worker publicly

disparaged Appellee’s trade advice. CR.94 at ¶41; she was told not to document

problems at work and send the information to her private email address. CR.95 at

¶42; she was removed from a fund that she had managed for years which she believes

set her up to fail. CR.95 at ¶¶44-47; she was forced to apologize to her male

supervisor. CR.95 at ¶48; she was told she was not a team player. CR.96 at ¶49; her

was reduced by half in May of 2022. CR.96-97 at ¶¶52-55; she was told she needed

to help improve the morale of a male colleague. CR.97 at ¶56-57; and she was told

by human resources that she was “too sensitive.” CR.97 at ¶58.2

2
After the Motion to Lift was granted, on August 14, 2023, Appellee filed her First Amended
Petition. CR.89-101. Importantly, Appellee did not materially change her allegations other than to
add a conclusory statement that a supervisor’s joke during sexual harassment training constituted

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 As a result of the Arbitration Agreement, on May 26, 2023, Appellant filed an

unopposed motion to compel arbitration and stay Appellee’s lawsuit, which the

Court granted. CR.20-24 & 30-31. On July 14, 2023, after not opposing the motion

to compel arbitration, Appellee filed her motion to lift stay and reinstate lawsuit

(hereinafter, the “Motion to Lift”) seeking to remove this case from arbitration.

CR.25-29. Appellee argued that the Ending Forced Arbitration of Sexual Assault

and Sexual Harassment Act (“EFAA”) required that her claims be removed from

arbitration. The Motion to Lift was argued, and granted, on August 11, 2023. CR.82-

84. Appellant timely filed its notice of appeal on August 31, 2023. CR.102-104.

SUMMARY OF THE ARGUMENT

The trial court erred in granting Appellee’s Motion to Lift because the EFAA

does not apply to her claims. The EFAA applies only to claims that relate to a sexual

assault or sexual harassment dispute. See 9 U.S.C § 402. Notably, the EFAA does

not apply to allegations that do not plausibly plead sexual assault or harassment.

Appellee undisputedly did not plead a claim for sexual assault. It is also clear that

Appellee did not make a single allegation that would qualify as sexual harassment

under federal or Texas law. Indeed, none of Appellee’s allegations detail any

unwelcome sexual advances, request for a sexual favors, or any other verbal or

sex harassment. CR.94 at ¶39. In any event, and while the First Amended Petition was filed after
the Motion to Lift was granted, as noted above, it does not assert any new allegations. As a result,
considering the First Amended Petition on this appeal is appropriate.

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physical conduct of a sexual nature as is required by both the Texas Labor Code and

Title VII. As a result, the EFAA does not apply and this Court should reverse the

trial court’s August 11, 2023, order, stay the trial court proceedings, and return this

case to binding arbitration.

ARGUMENT AND AUTHORITIES

I. Standard of Review

The August 11, 2023, order granting Appellee’s Motion to Lift constitutes an

order refusing a stay, or alternatively, an order denying Appellee’s motion to compel

arbitration. See Vets Securing Am., Inc. v. Smith, 632 S.W.3d 272, 278 (Tex. App.—

Corpus Christi–Edinburg 2021, pet. denied), reh'g denied (Aug. 9, 2021) (“An order

lifting a previously-imposed stay is considered an order ‘refusing stay’ for purposes

of the FAA) (citing Pre-Paid Legal Services, Inc. v. Cahill, 786 F.3d 1287, 1291

(10th Cir. 2015)). Section 51.016 of the Texas Civil Practice and Remedies Code

allows for an interlocutory appeal of an order denying arbitration. TEX. CIV. PRAC.

& REM. CODE § 51.016; see also Garcia v. Huerta, 340 S.W.3d 864, 868 (Tex.

App.—San Antonio 2011, pet. denied). Courts apply an abuse of discretion standard

of review for interlocutory appeals under this section. In re Labatt Food Serv., L.P.,

279 S.W.3d 640, 643 (Tex.2009) (orig. proceeding); Huerta, 340 S.W.3d at 868-

869. Pursuant to this standard, appellate courts defer to the trial court's factual

determinations if they are supported by evidence but review the trial court's legal

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determinations de novo. Id. Whether an arbitration agreement is enforceable is

subject to de novo review. Id.

Here, the issue here is the enforceability of the arbitration clause and there is

no factual dispute regarding the existence or execution of Agreement. Thus, this

Court should review the trial court’s order granting Appellee’s Motion to Lift under

the de novo standard.3

II. Appellee Did Not Plausibly Allege Sexual Harassment, and, Therefore,
the EFAA Does Not Apply

A. There is No Dispute that a Valid Arbitration Agreement Exists

At the outset, there is no dispute that a valid arbitration agreement exists.

Appellee admitted she signed it and that it was valid in her Motion to Lift. CR.25.

In addition, it is clear that her allegations fall within the scope of the provision.

Namely, if the facts alleged "touch matters," have a "significant relationship" to, are

"inextricably enmeshed" with, and/or are "factually intertwined" with the contract

that is subject to the arbitration agreement, the claim will be arbitrable. Pennzoil Co.

v. Arnold Oil Co., Inc., 30 S.W.3d 494, 498 (Tex. App. - San Antonio 2000, no pet.).

3
Even if the Court determines that the abuse of discretion standard applies to this case, the result
is the same. Specifically, and for the reasons explained in this brief, Appellee’s allegations did not
plausibly plead a claim for sexual harassment such that the EFAA applies. As a result, the trial
court abused its discretion in granting Appellee’s Motion to Lift.

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Both Texas and federal law greatly favor agreements to resolve disputes through

arbitration. Cantella & Co. v. Goodwin, 924 S.W.2d 943, 944 (Tex. 1996) (orig.

proceeding).

Here, Appellee alleged facts supporting causes of action relating to

discrimination and retaliation in relation to her employment based on her age and

sex/gender. CR.5-16 & 89-101. Therefore, the entirety of Appellee’s claims and

factual allegations arise out of the parties’ employment relationship and fall within

the scope of the arbitration agreement. CR.77. In fact, Appellee’s Motion to Lift was

not premised on the fact that the Arbitration Agreement was unenforceable or that

her claims fell outside the scope of the provision. CR.25-29. Instead, Appellee

argued that the EFAA applied and removed her case from arbitration. Id. Appellee’s

argument, however, fails for the reasons explained below.

B. The Ending Forced Arbitration of Sexual Assault and Sexual Harassment

Act

The EFAA amended the FAA and provides:

(a) In general.--Notwithstanding any other provision of this title, at the

election of the person alleging conduct constituting a sexual harassment
dispute or sexual assault dispute, or the named representative of a class
or in a collective action alleging such conduct, no predispute arbitration
agreement or predispute joint-action waiver shall be valid or
enforceable with respect to a case which is filed under Federal, Tribal,
or State law and relates to the sexual assault dispute or the sexual
harassment dispute.

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9 U.S.C § 402(a). In other words, the EFFA allows a claimant to bring a claim for

sexual harassment and sexual assault in court as opposed to mandatory arbitration.

Although the language of the EFAA is broad on its face, existing caselaw and

the policy behind the statute necessitate a narrower reading. Indeed, the EFAA

cannot be interpreted to apply to any attenuated claim involving an allegation of

gender-based conduct. Instead, caselaw interpreting the statute clearly dictates that

only specific claims for sexual harassment or sexual assault fall within the EFAA.

Under the EFAA, sexual assault and harassment are defined as follows:

(3) Sexual assault dispute. --The term “sexual assault dispute” means a
dispute involving a nonconsensual sexual act or sexual contact, as such
terms are defined in section 2246 of title 18 or similar applicable Tribal
or State law, including when the victim lacks capacity to consent.

(4) Sexual harassment dispute. --The term “sexual harassment dispute”

means a dispute relating to conduct that is alleged to constitute sexual
harassment under applicable Federal, Tribal, or State law.

9 U.S.C § 401. Appellee does not assert a claim for sexual assault and conceded as

much in her Motion to Lift and at the hearing regarding the same. RR.6:4-7. Thus,

the only issue on appeal is whether Appellee plausibly pled a claim for sexual

harassment such that the EFAA should apply.

C. Sexual Harassment Definition

Under the Texas Labor Code sexual harassment means “an unwelcome sexual

advance, a request for a sexual favor, or any other verbal or physical conduct of a

sexual nature . . .” TEX. LABOR CODE § 21.141(2).

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 While Appellee did not allege any violation of federal law (such as Title VII)

in her original or amended petition, it is addressed here out of an abundance of

caution. “To establish a sexual harassment claim based on hostile work environment

[under Title VII], the employee must show: (1) that she belongs to a protected class;

(2) that she was subject to unwelcome sexual harassment; (3) that the harassment

was based on sex; (4) that the harassment affected a “term, condition, or privilege”

of employment; and (5) that the employer knew or should have known of the

harassment and failed to take prompt remedial action.” Holmes v. N. Tex. Health

Care Laundry Coop. Ass'n, 304 F. Supp. 3d 525, 542 (N.D. Tex. 2018) (citing

Harvill v. Westward Communications, L.L.C., 433 F.3d 428, 434 (5th Cir. 2005)).

Unwelcome sexual harassment has been defined as “sexual advances, requests for

sexual favors, and other verbal or physical conduct of a sexual nature that is

unwelcome in the sense that it is unsolicited or unincited and is undesirable or

offensive to the employee.” Marquez v. Voicestream Wireless Corp., 115 Fed. Appx.

699, 701 (5th Cir. 2004) (quoting Wyerick v. Bayou Steel Corp., 887 F.2d 1271, 1274

(5th Cir.1989)); see also 29 C.F.R. § 1604.11(a).

D. The EFAA Does Not Apply where the Claimant Fails to Plausible Plead
Sexual Harassment

It does not appear that any Texas appellate courts or the Fifth Circuit have

addressed the issue presented here. However, the case law available from other

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jurisdictions makes clear that the EFAA does not apply to allegations that do not

plausibly plead sexual harassment.

For example, Yost v. Everyrealm, Inc., is directly on point and is the most

substantive decision in this area. No. 22 CIV. 6549 (PAE), 2023 WL 2224450

(S.D.N.Y. Feb. 24, 2023). In Yost, a former employee filed suit against her employer

asserting claims of pay discrimination, sexual harassment, and retaliation, among

others. Id. at *1. These claims were based on offensive jokes and comments that

were made to the plaintiff regarding her bisexuality. Id. at *5. Specifically, the

plaintiff alleged her supervisor thought her bisexuality made her an expert on others’

sexual orientations and the supervisor would often ask the plaintiff about the sexual

orientation and sex life of coworkers using explicit language. Id. The plaintiff argued

that the EFAA applied to her claims. In considering Plaintiff’s argument, the court

stated that a plaintiff seeking protection of the EFAA must “plausibly plead” a claim

for sexual harassment. Id. at *16-18. The court analyzed the plaintiff’s allegations

under New York state and city human rights laws, which, “are more lenient than

those of Title VII.” Id. at *11. Ultimately, the court found the claims did not

plausibly plead sexual harassment because the comments, while crude, were not

directed specifically to plaintiff about her sexual orientation.

Further, while the Fifth Circuit itself has not addressed this issue, courts within

the circuit have followed Yost and endorsed a narrow interpretation of the EFFA.

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Pepe v. New York Life Insurance Co., 2023 WL 1814879 (E.D. La. Feb. 7, 2023). In

Pepe, the plaintiff, a partner at New York Life, alleged that his former employer

electronically surveilled him in violation of Louisiana law and later retaliated against

him for reporting workplace misconduct. Id. at *1. He also alleged that New York

Life attempted to set him up to commit adultery with co-workers. Id. The plaintiff

tried to avoid an arbitration provision and the court considered whether the EFAA

applied. In doing so, the court held that the plaintiff's mere mention of the word

“harassment” alone, without facts supporting a claim of sexual harassment, did not

bring the case within the narrow exception of the EFAA. Id. at *4 n.19.

In sum, the case law available on this subject make clear that the EFAA only

applies to plausibly pled claims for sexual harassment and sexual assault as defined

by the applicable law.

E. The EFAA Does Not Apply Appellee’s Claims

Appellee does not allege any facts to establish a claim for sexual harassment.

Appellee’s relevant allegations can be summarized as follows:

First Amended Petition

 Appellee was told by her supervisor in 2017 that she “needed to not be
seen as driven or opinionated” and instead needed to be “really, really
nice.” CR.93 at ¶32;
 Appellee was accused by co-workers of making accusations of sexism that
were not supported. CR.94 at ¶37;
 Appellee’s supervisor expected her to speak up at team meetings but did
not expect the same of her male colleagues. CR.94 at ¶38;

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  Appellee’s supervisor raised his voice at her but never to her male
colleagues. Id.;
 In 2019 Appellee’s supervisor “made a joke about sex harassment
regarding a mandatory training session on sex harassment.” CR.94 at ¶39;
 A co-worker publicly disparaged Appellee’s trade advice. CR.94 at ¶41;
 Appellee was told not to document problems at work and send the
information to her private email address. CR.95 at ¶42;
 Appellee was removed from a fund that she had managed for years and
placed on a more difficult investment fund which she believes set her up
to fail. CR.95 at ¶¶44-47;
 Appellee was forced to apologize to her male supervisor for questioning
him in public. CR.95 at ¶48;
 Appellee was told she was not a team player. CR.96 at ¶49;
 Appellee’s pay was reduced by half in May of 2022. CR.96-97 at ¶¶52-55;
 Appellee was told she needed to help improve the morale of a male
colleague. CR.97 at ¶56-57;
 P Appellee was told by human resources that she was “too sensitive.”
CR.97 at ¶58; and
 Appellee was fired in November of 2022 after she filed her Charge and
with no final warning. CR.98 at ¶65.

Charge

 Appellee’s revenue had been cut in half. CR.42.

 Appellee’s supervisors favored younger workers. Id.
 Appellee was being set up failure because she was removed from
managing a certain investment fund. Id
 Appellee was instructed to help improve the morale of a male colleague.
Id.

Based on the above, it is clear that Appellee has not made a single allegation

that would qualify as sexual harassment under federal or Texas law. None of the

allegations detail any unwelcome sexual advances, request for a sexual favors, or

any other verbal or physical conduct of a sexual nature as is required by both the

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Texas Labor Code and Title VII. TEX. LABOR CODE § 21.141(2); Marquez, 115 Fed.

Appx. at 701.

Instead, Appellee’s allegations amount to sex/gender discrimination which is

far different than sexual harassment. Sex/gender discrimination, as is relevant to this

case, involves treating a woman (i.e. Appellee) different than her male colleagues

with respect to the terms and conditions of the woman’s (i.e. Appellee’s)

employment because of her gender. See Ysleta Indep. Sch. Dist. v. Monarrez, 177

S.W.3d 915, 917 (Tex. 2005) (reciting the elements for sexual harassment). All the

allegations detailed above (such as Appellee being yelled at while her male

colleagues were not and being removed from certain funds) allege only sex/gender

discrimination, which is simply not covered by the EFAA. Tellingly, Appellee

places her claims under a header titled “Age and Sex Discrimination.” CR.98-99.

Moreover, the word “harassment” only appears in one of Appellee’s

allegations in which she claims her supervisor “made a joke about sex harassment

regarding a mandatory training session on sex harassment.” CR.94 at ¶39. However,

the live pleading does not allege that the joke was directed at or about Appellee. Nor

do the allegations state that the joke was somehow an unwelcome sexual advance or

request for sexual favor. Thus, this conclusory statement does not plausibly plead a

claim for sexual harassment. Yost, 2023 WL 2224450, at *16-18.

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 During the hearing on Appellee’s Motion to Lift, the trial court, in making its

decision to grant the motion, appeared to find sexual harassment had been

adequately alleged based on two allegations: (1) that Appellee was instructed to

improve the moral of a male colleague; and (2) Appellee was told that she was not a

team player. RR.15:20-18:3. However, this was error because nothing in Appellee’s

original petition or amended petition—which was filed after the trial court’s ruling—

provided any facts suggesting any of these alleged actions involved unwelcome

sexual advances, request for sexual favors, or verbal of physical conduct of a sexual

nature. Yost, 2023 WL 2224450, at *16-18.

In short, Appellee’s allegations are completely devoid of any facts

establishing that she has asserted a claim for sexual harassment in this case. As the

Pepe court stated, “use of the word ‘harassment’ alone, without supporting legal or

factual allegations, does not bring [the] case within the ambit of 9 U.S.C § 402.”

Pepe, 2023 WL 1814879, at *4 n.19; see also Yost, 2023 WL 2224450, at *16-18

(holding that sexual harassment must be plausibly alleged for the EFAA to apply

and threadbare allegations are insufficient). As a result, the EFAA does not apply

and the trial court erred in granting Appellee’s Motion to Lift.

CONCLUSION AND PRAYER

The trial court erred in granting Appellee’s Motion to Lift. Appellant

respectfully requests that this Court reverse the trial court’s August 11, 2023, order

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granting Appellee’s Motion to Lift Stay and Reinstate Lawsuit and order that

Appellee’s suit be stayed pending binding arbitration pursuant to the Arbitration

Agreement.

Respectfully submitted,

CLARK HILL PLC

2301 Broadway
San Antonio, Texas 78215
Telephone: (210) 250-6000
Facsimile: (210) 250-6100

BY: /s/ Soña Ramirez

ADAM D. BOLAND
Texas Bar No. 24045520
[email protected]
SOÑA RAMIREZ
Texas Bar No. 24040330
[email protected]
CHARLES HAYES
Texas Bar No. 24116496
[email protected]
2301 Broadway St.
San Antonio, Texas 78215
Telephone: (210) 250-6000
Facsimile: (210) 250-6100

ATTORNEYS FOR APPELLANT

VICTORY MANAGEMENT
CAPITAL, INC.

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 CERTIFICATE OF COMPLIANCE

In compliance with Tex. R. App. P. 9.4(i)(2)(B) and 9.4(i)(3), I certify that

the number of words in this document, excluding those matters listed in Rule
9.4(i)(l), which was prepared in Microsoft Word using 14-point time Roman, is
3,493 words.

/s/ Soña Ramirez

SOÑA RAMIREZ

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 CERTIFICATE OF FILING AND SERVICE

I hereby certify that a true and correct copy of the foregoing Brief of Appellee
was serviced via the ProDoc e-Filing system and email on the following counsel of
record on this 4th day of October, 2023:

Thomas J. Crane
State Bar No. 05007320
[email protected]
LAW OFFICE OF THOMAS J.
CRANE
900 N.E. Loop 410, Suite D306
San Antonio, Texas 78209
Tel: (210) 736-1110
Fax: (210) 745-4258

/s/ Soña Ramirez

SOÑA RAMIREZ

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 NO. 04-23-00824-CV

IN THE COURT OF APPEALS OF TEXAS

FOURTH JUDICIAL DISTRICT, SAN ANTONIO, TEXAS

VICTORY CAPITAL MANAGEMENT, INC.,

Appellant,

vs.

JULIANNE BASS

Appellee.

APPENDIX TO APPELLANT’S BRIEF

Document App. CR.

A. Order granting Appellee Julianne Bass’s Motion to 1-3 82-84
Lift Stay and Reinstate Lawsuit
B. Employment Agreement 4-11 71-78
C. 9 U.S.C § 401 12 N/A
D. 9 U.S.C § 402 13 N/A
E. TEX. LABOR CODE § 21.141 14-15 N/A

PAGE 1
273514821
 Declaration of Sona Ramirez

STATE OF TEXAS §
COUNTY OF BEXAR §

My name is Sona Ramirez. My date of birth is April 5, 1976. My address is

2301 Broadway Street, San Antonio, Texas 78215.

I hereby declare under penalty of perjury as follows:

1. I am over eighteen years of age and am fully competent to make this

declaration. I am an attorney licensed by the Supreme Court of Texas and am counsel
for Appellant in this proceeding.

2. The factual statements contained within this declaration are within my

personal knowledge and are true and correct.

3. The copies of trial court order and other documents included in this
Appendix are true and correct copies of these documents.

Executed in Bexar County, Texas, on October 4, 2023.

/s/ Sona Ramirez

Sona Ramirez

PAGE 2
273514821
 Fl
DISTRTCT CLERK
BEAM? '30 TEXAS

23AUGII AM 9: 33
IEPUTY

8¥' '12 '7. I"

Vafiw
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HALF SHEET DOCKET SESSION

Half Sheet Docket Sessionssfor [Dept]
Date: 8/11/2023 12:00:00 AM
3*"
Curt Location: 30004 \
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.. ....» -- .m; 7/9 OAT/WV
'

Cause Nbr: 2023CI01737 6666'66 0666:1109 §I=6rz 131st District Court At 8: 36 AM

...

;
Style: Julianne Bass VS Victory Capital Management, Inc.
Attorney(s) For Case
SONA RAMIREZ THOMASA CRANE

Type 6f M666n 6r Appllcatlon MOTION To SET- HEARING ON M0NTI6N To LIFT STAY AND REINSTATE LAWSUIT
"'TJC

CONFERRINGi ESTIMATE HEARING TIME

AGREED ORDER ASSIGNED COURT Hm- ("W
DROP RECORD TAKEN; ,L
INTERPRETER RESET DATE :
TIME; :6

Hqc'p'lfif—
EcMad-Wn TWMA"
26¢»st &
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/'7C{5f 5646 3'9
DOCUMENT SCANNED AS FILED
'g
App.1
Page 82
 Cause No. 2023-CI-01737

JULIANNE BASS, Plaintiff § 1315' DISTRICT COURT

v. §
BEXAR COUNTY
VICTORY CAPITAL MANAGEMENT, §
INC., Defendant STATE OF TEXAS

ORDER

On this came to be heard Plaintiff' 5 Motion to Lift Stay and Reinstate Lawsuit.

Having heard argument of counsel and reviewed the motion and attachments, it appears
that the motion has merit.

It is therefore:

ORDERED that that the stay in this lawsuit is lifted effective the day of this Order
and this lawsuit is reinstated.
(_(fir
SIGNED AND ENTERED this day of
MW' , 20223

AUG'HZUBWX PRSIDING DISTRICT COURT

Mary Lou Alvarez

Presiding Judge
45th District Court
Bexar County, Tern:

DOCUMENT SCANNED AS FILED

App.2
Page 83
Agreed as to form and substance:

W125?»
Soga Ramirez
Clark Hill
T.S.B. No. 24040330
Attorney for Defendant

Agreed as to form and substance:

Thomas J. Crane
T.S.B. No. 05007320
Attorney for the Plaintiff

App.3
Page 84
 4
VictoryCap tai
January 7, 2019

Julianne Bass
9800 Frederieksbutg Road
San.Antonio, TX. 78288

Dear Julianne,

This letter agreement (this; "Agreemenflis intended to set forth our mutual understanding regarding your
employment with Victory Capital Managernent Inc. ("Victory") from. and after the cloaing:("Closing") of the
acquisition by Victory Capital:I': din gs,:lne. ("Victory Capital") of US.AA Asset Management Company-and
USAA Transfer. Agency Company (collectively referred to as the ."Acquired Companies," and such
acquisition of the Acquired. Corripanies; the "Transaction").

Your employment with Victory as of the 'effective time of the Closing (the "Cohinieneenient
Date") on the. terms expressly provided herein. Upon the Commeneement.Date, this. Agreement, .as. well as
any compensation or benefit plans maintained by the Acquired Companies, Victory or Victory Capital:from
time to time in,which you are. eligible to participate; will represent-the full and 'entire agreement.betWeen yOu
and Victory regarding your employment, and supersede and replace, all prior agreeMents, understanding, or
entitlements.

Function/Title,

VP, Portfolio Manager USAA Investments Franchise, reporting to. John 8pear, CIO .& Head of Fiked Income,
USAA Investments Franchise.

Primary responsibilities will include .your contribution to your team's investment process and investment
performance:for your team's. products. Additionally, you will provide support to the distribUtion and marketing
efforts (both within the USAA Member Channel, as well as Victory's Institutional and InterMediary
Distribution Channels) to .promote the USAA Investinents Franehise products for growth and asset retention.

Without limiting the foregoing, you will devote sufficient business time and attention as is necessary or
appropriate for the perferrnanee of your duties and responsibilities hereunder and shall use your best efforts
and skill in the perforniance of such duties and responsibilities,

Location.

Priniary locationOfSan Antonio •Tekas, This position will require the flexibility to travel for :marketing and
'client servicing putNsPs.

Ease. Salary.

You will be paid your currcnt base salary which as 'of the date of this. Offer letter USAA has indicated is
$255,200 (inclusive of your ExecutiVe Annual Stipend) plus any incremental annual merit increase typically
awarded in February 2019 as part, of the USAA :annual corporate perfOrmance cycle. This .position is an
exempt position, which means you: are not. ligible for overtime' ay under state and federal laws.

App.4
Page 71
Incentive Compensation.

For:the calendar year 2019 only, you will be entitled to receive from. Victory onthe .Bonus Payment Date (as
defined:below) apro rata portion (from., January 20.19 to immediately prior 'to the, Commencement Date) of
.your.201.9 annual incentive bornis. (the "USAA. Bonus") under the USAA Corporate BottUS Phal (the "USAA
Corporate .Ptan"); in an amount 'determined in accordance with the USAA Plan_ based on USA.A's actual
performance. :Victory :intends for USAA, or its affiliates to c0rnmunicate pout target 2019 USAA.Bontis to
'you prior to the: Commencement Date, and your 'actual 2019 USAA Bonus to You as soon as .reasonably
practicable folloWing 11/MA's determination Of such amount. Following the Commencement Date,. you. will
accrue no further amounts under the USAAcorporate.Plan:

For the calendar year 2019 only, you will be eligible to participate inthe Victory' sfanntial cash incentive bonus
program (the "Victory Bonus Plan"). for professional employees,. as in effect from time to time, and will. be
eligible to reeeive incentive.compensation consisting of a performance bonus ("Incentive Compensation").
For the;calendar year` only;the full yearincentiveConipensatiOn target for your position will be $102,211.
Which will be prorated based on-the Conithencement Date. 'The Incentive Compensation target is. not a
guarantee, and your actual Incentive comperisation.entitlement for the calendar year 20;19 will be in an amount
recommended hythe.USAA Investments Chief. nVestment Officer and approved.by Victory's Chief Executive
Officer,. who will have the. right 'to :approve the 'recommendations or emend the allocation. Incentive
Compensation for the calendar year 2019 willbe paid according to the normal incentive payment:schedule, on
or before March 15 of the subsequent calendar year (the "Bonus Payment Date") subject to you being in
Active Working ..Status (defined below) through the. Bonus Payment Date subject to you being in ACtive
Working•:Status (defined below) through the applicable Bonus Payment Date, The, payment of your Incentive
Compensation is subjecttothe terms and, conditions of the:Victory Bonus Pool, your continued employment,
yourindividnal performance, and the investment performance of USAA InvestrrieritS. Incentive Compensation
is paid in. accordance with the Victory Bonus. Pool and Victory's bonus payment practices. and is subject to
Withholding, You will have no further entitlements under the Victory Bonus Plan for the calendar yearS 2020
'and beyond:. Victory reserves:the:right to attend the Victory Bonus. Pboisat 'any time.

For the calendar year 20'M only,..Victory.will cot-kin:tip to make payments-to you under and in accordance with.
the terms of the. USAA Asset Management Company Variable Pay Prograth (the "VPP Prograth"). Ori
cember3 I, 201.9, the VP? Program will terminate,, and you will' have no further entitlements thereunder in
respect of calendar years 2020 and beyond.

Cornaiending an January 1, 2020, you will be entitled' to participate in and receive incentive payments from
the USAA Investinents revenue share pool (the "Revenue. Share Pool"). Your revenue share entitlement will
be in au amount recommended by the USAA Investments Chief Investment Officer and approved by Victory's
Chief Executive Office.

Generally, in order to receive your Incentive Compensation, the USAA. Bonus and any Revenue Share Pool.
Payments in 2020, you must bein an Active Working Status on the Bonus Payment Date, Fbr purposes Of this
offer letter, "Active Working. Status" means that you have not resigned (or given notice of your intention to
resign) or have not been terminated (or been given notice of your termination).

Restricted Stock.

On the Closing. Date, you will be granted an award of restricted shares of Victory Capital's Class B common
stock in an amount equal to $211,000 ("Restricted Stock") pursuant to the terms of the 2018 VCH Equity
Incentive. Plan the ("Equity Plan") and a Restricted StoCk Agreement between you and Victory Capital in
substantially the form provided: to similarly-situated Victory.employees.
Page 12

App.5
Page 72
The vesting schedule established for the Restricted Stock is a three-year schedule, with one-third (1/3) of the
Restricted Stock vesting on each anniversary of the grant date, subject.to your continued employment with
Victory through each respective stated anniversary. The Restricted Stock award will be subject to such other
terms and conditigns.as set forth and evidenced by your Restricted Stock Agreement.

Registration.

The position which you have been offered may require testing and/or registration, including, without lirnitatidn,
favorable determinations of pre-employment background checks, credit checks, qpeStionnaires.and drug tests.
All necessary testing must be completed prior to the Commencement Date,

Paid Time Off.

In addition to holidays observed by Victory, you will be eligible for Flex Paid The Off (r`Flex PTO") benefit
in accordance with the Victory Employee Handbook. Flex PTO empleyees are entitled to take reasonable
amounts of paid time off without havingto draw en a bank of time and without an accrualica.p system. Further
details of the Flex PTO Policy will be prcivided on or prior to the Commencement Date.

Benefits.

During yotir employment, you will be eligible to participate in any and all employee benefit plans, medical
insurance plans, life insurance plans, disability income plariS, 401(k) retirement savings plans, and 'other benefit
plans made available by Victory from time to time to its similarly situated professional. employees generally.
Your participation in Victory benefit plans will be subject to plan terms and generally applicable Victory
policies and applicable law and, in the case of certain plans, to requirements that participating emplOyees
contribute to applicable premium costs. Nothing contained in this Agreement shall be construed, to create any
obligation on the part of Victory to establish any such plan or to maintain the effectiveness of any particular
plan which may be in, effect, from time to time, The. Victory benefits package will be available to you on the.
first day of the first full calendar month following the Commencement Date; Further details of your benefits:
will be discussed prior to the commencement of your employment.

Severance.

In the event of a termination of your employment by Victory without Cause as defined on Appendix A prior
to the first,anniversary of the Commencement.Date, you will be eligible' to.receive such severance benefitS as
determined by Victory that would have been payable in accordance with the applicahle severance plan of.
USAA. Following the first anniversary of the Commencement Date, you will be eligible to receive severance
benefits under the Victory Capital Management Inc, Severance Plan.

Confidentiality.

You shall always preserve as confidential all Confidential Infontation (as defined below) and shall never use
it for your own benefit or for the benefit of Others (other than the for Victory or its affiliates referred to as the
"Company Group") including during your employment by Victory or after the termination thereof You shall
not disclose, discuss, or communicate, through any means, Confidential. Information • to any unauthorized
person, business or corporation including during your employment by Victory or after the termination thereof
You shall use your best efforts and exercise due diligence to protect, to not disclose; and to keep as confidential
all Confidential Information. You understand and acknowledge that the obligations will continue:unless'and
Page I 3

App.6
Page 73
until any such Confidential Information has becOme, through no fault of yours, generally known tothe public,
or you are required by law (after providing Victory with advance notice (to the extent permitted by law) and
an opportunity to contest such reqUireitent) to make disclosure thereof; provided that nothing contained herein
shall preclude good faith reporting and cOoperation With regulatory or legal enforcement authorities or
agencies. For the purposes of this Agreement, "Confidential Information" shall mean any confidential
information accessed by you, while in the employ of Victory with:respect to any of the services, prOductS,
itnprovemerits, formulaS, designs or styles, processes, customers, customer lists, methods of business or any
business practices of the Company Group, the disclosure of which could be damaging to the Company Group;
provided, however, that Confidential Information shall not include any information knovvti generally to the
public (other than as a result of unauthorized disclosure by you or any person with the: assistance, consent or
direption of you) or any information of a type not otherwise considered confidential by persons engaged .in the
same business or a business similar to that conducted by Victory or any information that must be disclosed as
required by law.

In addition, you acknowledge and agree that the investment performance of the accounts managed by the
Company Group is attributable to the efforts of the team of professionals of the Company Group or any
predecessor to any of them, and not to the efforts of any single individual or subset of such team of
professiOnals, and that, therefore, the performance records of the accounts managed by the. Company Group
(or any predecessor to any of them) are and shall be the exclusive property of Victory (and not of any other
person;or persons). Notwithstanding the foregoing; you shall be permitted to verbally discuss the investment
performance of accounts that you advised or otherwise provided services to in connection with future
employment, provided that you may not divulge any information that is not otherwise in the public dotnain,
and you may not use such information in marketing Materials.

YOu understand that .nothing in this Agreerrienti.shall be .construed to prohibit you from reporting possible
.violations..of law or regulation to any governmental agency or regulatory body or making other diSclosures that
are protected underany law or regulation, or from filing a charge with or participating in any investigation or
proceeding conducted by any- governmental agency or regulatory body.

You understand that the. Defend Trade Secrets. Act provides that you may not be herd criminally or civilly
liable under any Federal or state trade secret .law for the.,disclosiire of a trade.seeret that is.made in confidence.
to a FederaI,.state, or local govetriment official, either directly or indirectly, or to 'Attorney,::atid solely for
the purpose of reporting or investigating :a suspected vidlatien of law; or is' made in a complaint or other
.document filed in a lawsuit or other proceeding, if such filing is.made under seal, In the event that you.file. a.
lawsuit fOr retaliation by any member of the. Company Group for-reporting:a:suspected violation. of `law, YoU
may disclose the: trade secret to your .attorney and use the trade secret information in the eolirtproteeding, if
you file any document containing the trade secret under seal and do riot diSelose the trade secret, eiccept
piutuarit to courtorder.

The terms and conditions. Ofthis Agreement are and :Shall he deemed to be confidential, and shall not be
disclosed by you to any person -Or entity without theprier written consent of Victory, except if required by law;.
arid to your accountants, attorneys. and/or immediate:family, provided that to the maximum. extent permitted
by applieable.law, rule, code or regulation, they agree to maintain the confidentiality of this Agreement,

Intellectual Property

By signing this. Agreement, you represent that you have no developinents, original works: of authorship,
improvements; or trade secrets that you can demonstrate were created or owned by you prior to the,
commencement of your employment, which belong solely to you or belong to you jointly with another, that
relate in any way to any of the actual or proposed businesses; products, or research and development of the
Page j 4

App.7
Page 74
-CoMpany. Group, and that are not assigned.to the Company Grouphereunder. Further, you acknowledge and
agree that.you will; without additional, compensation, promptly:make. full written disclosure to. the Company
Group,:and hold. intruSt for the Sole right and benefitafthe Company Group,. all developments, original works
of authorship, inventions, concepts, know-how, improvements, trade secrets, and similar proprietary rights,
whether or not patentable or. registrable under copyright or similar laws, .:which you may solely br jointly
conceive or .develop. or reduce: to practice, 'or have solely or jointly coneeived or developed or reduced to
praatice;:or have. caused_ Or May cause to be conceived or developed pr redneed, to practice, during. the
Assignment Period (as defined. eloW), whether or not.rinring regular.workinghours,provided that they relate
in any way-to any of the: actual orproposed busineSSes,,produCtS; or research arid development-of:the Company
Group (collectively referred to as "Developments.'.'). All.pevelopments made by .you. (solely.or jointly with
others):withinthe scope of and during any period in which you perform.orperfarmalservices for the Company
Group both before and afterthe Commencement: Date. (the "Assignment Period") are "works made for .hire"
(to the greatest extent permitted by ..applicable law) for which you are„ in: part, compensated by: yOur salary;
unless regulated otherwise by laW, but that, in the event :any .such 'Development is deemed not to be a work
made for hire, you hereby assign. to Victory,. or its designee,..all your right, title, and interest throughout the
world in and:to any such Development: If any DeVelopments cannot be assigned, you hereby grant to the
Company Group an exclusive, .assignable, irrevocable, perpetual,. worldwide; Sublicenseable (throUgh. one„or
multiple tier's), royalty-free, unlimited license' to use, make, modify,.sell, offer fOr.sale, reproduce, :distribute,.
oreatederiyative works of, publicly perform, publicly display and digitally perform and display such work in
any media now known or hereafter known. You agree that.dutside the scope of your service, whether during
or after youremployMent with the company group, you will not to (i) modify, "adapt, alter, translate, orcreate
derivative works from any Development constiniting.0 work of authorship or (ii) merge any. Development
constitiiting-a work of authorship with other DeVelopthents. To the extent rights• related to patern ity,integrity,
disclosure and withdrawal (Collectively, "Moral Rights") may not be assignable under apPlicable law and to,
the extent the following is allowed by the laws in the various countries Where Moral Rights exist, you hereby
irrevocably.w.alve such Moral.Rights and consent W. any acticin 'Of the Company GrOupthatwould violate such
,Moral. Rights: in the...absence of such consent.

In, connection with the foregoing; you agree to keep and maintain. adequate arkl ctittent written records of all
Developments made by you (solely or jointly with others) during the Assignincnt Period: The records may be
in the form of notes, sketehes, drawings, flow. charts, electronic data or recordings, and any other format. The.
records will:be available to and remain. the sole property-of the.Comparty Group atall times. You agree nottO
remove such records from Victory's place of busineSs except as expressly permitted by Company Group
policy, which indy; from time to time, be revised at the sole election-of the Company Group for the purpose' f
furthering the business of the. Company -Group. You further agree:that you will assist Victory, or its designee,
at' Victory's expense, :in every way to. secure the rights of the Company Grail) in the DevelOpMents and any
copyrights, patents, tradernarkSi. service marks,.database rights, domain names, mask.work rights, moral rights,
and other intellectual. property rights relating thereto in any and. all countries, including the disclosure to
Victory of all. pertinent information and data with respect :thereto; the. execution of all applications,
ispecifications,:oaths, assignments, recordation% .and 'all other bistruinents.thatViCtory shall deem; necessary in
'order to apply for, obtain, maintain, and transfer sueb rights and in order to assign and convey.to the.Company
Group the:sole and. exclusive right, title, and interestiin.andio such Developments, and any intellectual property
and other proprietary rights relating thereto. You further agree that your obligation to execute or cause to be
executed, when it is:in your power to do so, any such instrument or papers .shall continue after the Assignment
Period until the expiration of the last such intellectual property right to ..expire, in any country of the world;
provided, however, that Victory shall reimburse you. for your. reasonable expenses incurred in connectioti with
carrying out the foregoing obligation: If afterdiligent efforts VictOly is unable because of your:mental at
physical incapacity bfuriavailAbility.fot any other reason to secure your signature to apply fotorto pursue any
application for. any United States or. foreign patents or copyright registrations covering Developments or
original. works atithorShip assigned to Victory' as above, then you hereby irrevocably designate and appoint
Pagel 5

App.8
Page 75
Vietdry.and its duly authorized officers and .agents as your agent and attorney in fact to act for and in your
behalf and stead to execute and file any such applications or records and to do all other lawfully permitted acts
to further the application for, prosecution,, issuance, maintenance, and transfer of letters patent or registrations
thereon with the same legal force and effect as if originally executed by you. By signing this Agreement, you
hereby waive and irrevecably quitelairn to Victory any and all claims; of any nature whatsoever, that you now
or hereafter have for past, present, or future infringement of any and all proprietary rights assigned: to Victory.

Other Acknowledgements.

Bysigning below, you. hereby acknoWledge that during your employment with Victory, you will be subject to,
and Will comply with, the Company Group's standard human resources, compliance, information technology,
media, ethics, blaCkoutiwindow period, and other written employee policies, including but.not lithitedto those
relating to business conduct, and those otherwise set forth in the manuals or: statements of policy of the
Company Group, in each case as in effect from time to time, arid all applicable laws, rules and regulations
imposed by any governmental regulatory authority from time to time. You also represent, warrant and
covenant that as of the date hereof (i) you are not bound by any agreement that conflicts with or preVents or
restricts the full perfOrmance of your dutieS and obligations to Victory and (ii) the execution and delivery of
this Agreement shall not.result in any breach or violation of, or a default under, any existing obligation,
commitment or agreement to which you are subject. You further acknowledge that you have carefully read
this Agreement, that you understand its terms, that you have been given the.opportunity. to obtain advide from
yoUr legal counsel regarding this. Agreernent, and that yoU have entered into this Agreement knowingly and.
Voluntarily and with full knowledge and understanding of the provisions,of this Agreement after being given
the opportunity to consult with your legal counsel. You further representthat, in entering into this Agreement,
you are not relying on any statements: or representations made by any of Victory's directors, officers,
employees or agents which are not expressly set forth herein, and that you are relying only upon your own
judgment and any advice provided by your attorney.

Employment At-Will.

Notwithstanding anything herein .to the contrary, the nature of your empleytrient • at Victory is "at will," as
defined by applicable laW„ meaning 'that either Victory or you May terminate yaw employment at any time,
with or without cause; for any. reason or for no reason and with or without notice (except that you `agree to
provide Victory with not :less than sixty (60) prior written notice :of your intention to resign from your
.employment; which notice period may be-.waived or.acaelerated by Victory in its Sole discretion).

Conditioned on Closing.

This Agreement shall. be conditioned upon the.Closing of the Transaction. In the. event hat the Stock Purchase.
Agreement, dated as of November 64 '201.8, by and among Victory Capital, USAA Investment Corporation
andi for certain limited, purposes, USAA Capital. Corporation (the 'Turehase Agreement") terminates prior
to, the Closing, this. Agreement. shall be void .61.) initio.

Withholding.

Victory may:withhold and deposit ail federal, state; and local ineome and employment taxes that are owed with
respect to all amounts paid or benefits provided to'or for you by the Cornpany Group.

Regulation 409A.

Page I 6

App.9
Page 76
The intent of the parties is that payments and benefits under this offer letter are exempt from Internal Revenue
Code Section 409A and the regulationS and guidance promulgated thereunder (collectively "Code Section
409A"). However, to the extent such payments and benefits under this offer Ietter.are subject to Code Seetion
409A, the intent of the parties, is that payments and benefits under thiS offer letter comply With Code Section
409A and, accordingly, to the maximum extent permitted this offer letter shall be interpreted to be in
compliance therewith. .In no event shall Victory be responsible for any additional taxes or penalties that may
be imposed as a result of failure to comply with Code Section 409A,

Survival.
The proVisions'ih. the confidentiality "section herein shall survive, and remain binding .and. enforceable,.
notwithstanding the termination of this. Agreement,. orthe termination of ymir employment hereunder or any
settlement of the financial rights and ohliptions' arising from your employment. hereunder, to the extent
necessary to. giVe• effect to 'Such proViSiOns.

Counterparts;.Entire.,Agreemetit •

ThiSAgreement may be executed in two or more counterparts, each•of which-shall be deemed to be an original
but ail•of which together shall constitute brie and the same instrument. The eXecution, pfthis,Agreefnent may
be by actual or facsimile .signature: This Agreement constitutes the. entire agreement and • understanding
between Victory and: you with respect to the terms and ,conditions. of your eniployment. and supersedes and
replaces -all. prior .and contemporaneous communications, agreethents•and:Understandings,.wriften or oral, with
respectto the terms and conditions of your employment Forthe-avoidance of doubt, exceptas expressly stated
herein, following the Commencement Date, your partiCipation in USAA's compensation and benefit plans.
shall cease, and you. willbeeligible to participate only in the compensation or benefit plans maintained by the.
Acquired COmpanis, Victory or Victory Capital from time to time, which plans may be amended, suspended'
.or terminated at anytime in accordance with the terms thereof.

Governing Law; Arbitration; JurisdietiOn.

This Agreement shall be goVerned :by the laws of the State of Texas, without: regard to: any conflicts of law
principles. All disputes and claims of any nature that you (or your transferee or. state) may have against the
Company Group arising out of or in any, way related to your employment with the Company Group 'shall be
submitted to:and resolved exclusively by binding arbitration conducted in San Antonio, Tex45 (or such other
location as'the parties thereto may agree) in accordance with the applicable rules of the American Arbitration
Association then in effect, and the arbitration shall, be heard and determined by a panel of three arbitrators' in
accordance with such rules (except' that iri the event of any.inconsistency between such rules and this
Agreenient, the provisions of this Agreetnent shall control) The arbitration panel may not modify the.
arbitration rules specified above without the prior written approval of all parties to the arbitration. Within ten
business days after the receipt of a written deniand, each party shall designate one arbitrator, each of whom
shall have experience involving complex business or legal matters, but shall not have any prior, existing or
petential material buSiness relationship with any party to the arbitration. The two arbitrators so designated
shall select, a third arbitrator, who shall preside over the arbitration, shall be similarly qualified as the two
arbitrators and shall have no prior, existing. or potential material business relationship with any party to the
arbitration; pr°Wed that if the two arbitrators are unable to agree upon the selection of such third arbitrator,
such third arbitrator shall be designated in accordance with the arbitration rules referred to, above; The
arbitrators will decide the dispute by majority decision, and the decision shall be rendered in writing and shall
bear the signatures of the arbitrators and the party or parties who shall be charged therewith, or the allocatiOn
of the expenses among the parties in the discretion of the panel. The arbitration:decision shall be rendered as
soon as possible, but, in any event not later than 120 days after the constitution of the arbitration panel. The
arbitration decision shall be final and binding upon all parties to:the arbitration. The parties hereto agree that
Pagel 7

App.10
Page 77
judgment upon any award rendered by the arbitration panel may be entered in the United States District Court
for the WeStern District of TexaS any Texas State court sitting in San Antonio. To the maximum extent
permitted' by law, the parties hereby irrevocably waive any right of appeal from any, judgment rendered upon
any such arbitration award in any such court Notwithstanding the fOregoing„ any party may seek injunctive
relief in any such court.
[Signature Page Follows]

Page 18

App.11
Page 78
§ 401. Definitions, 9 USCA § 401

United States Code Annotated

Title 9. Arbitration (Refs & Annos)
Chapter 4. Arbitration of Disputes Involving Sexual Assault and Sexual Harassment

9 U.S.C.A. § 401

§ 401. Definitions

Effective: March 3, 2022

Currentness

In this chapter:

(1) Predispute arbitration agreement.--The term “predispute arbitration agreement” means any agreement to arbitrate a
dispute that had not yet arisen at the time of the making of the agreement.

(2) Predispute joint-action waiver.--The term “predispute joint-action waiver” means an agreement, whether or not part of
a predispute arbitration agreement, that would prohibit, or waive the right of, one of the parties to the agreement to participate
in a joint, class, or collective action in a judicial, arbitral, administrative, or other forum, concerning a dispute that has not
yet arisen at the time of the making of the agreement.

(3) Sexual assault dispute.--The term “sexual assault dispute” means a dispute involving a nonconsensual sexual act or
sexual contact, as such terms are defined in section 2246 of title 18 or similar applicable Tribal or State law, including when
the victim lacks capacity to consent.

(4) Sexual harassment dispute.--The term “sexual harassment dispute” means a dispute relating to conduct that is alleged
to constitute sexual harassment under applicable Federal, Tribal, or State law.

CREDIT(S)

(Added Pub.L. 117-90, § 2(a), Mar. 3, 2022, 136 Stat. 26.)

9 U.S.C.A. § 401, 9 USCA § 401

Current through P.L.118-13. Some statute sections may be more current, see credits for details.

End of Document © 2023 Thomson Reuters. No claim to original U.S. Government Works.

© 2023 Thomson Reuters. No claim to original U.S. Government Works. App.12 1

§ 402. No validity or enforceability, 9 USCA § 402

United States Code Annotated

Title 9. Arbitration (Refs & Annos)
Chapter 4. Arbitration of Disputes Involving Sexual Assault and Sexual Harassment

9 U.S.C.A. § 402

§ 402. No validity or enforceability

Effective: March 3, 2022

Currentness

(a) In general.--Notwithstanding any other provision of this title, at the election of the person alleging conduct constituting a
sexual harassment dispute or sexual assault dispute, or the named representative of a class or in a collective action alleging such
conduct, no predispute arbitration agreement or predispute joint-action waiver shall be valid or enforceable with respect to a
case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute.

(b) Determination of applicability.--An issue as to whether this chapter applies with respect to a dispute shall be determined
under Federal law. The applicability of this chapter to an agreement to arbitrate and the validity and enforceability of an
agreement to which this chapter applies shall be determined by a court, rather than an arbitrator, irrespective of whether the
party resisting arbitration challenges the arbitration agreement specifically or in conjunction with other terms of the contract
containing such agreement, and irrespective of whether the agreement purports to delegate such determinations to an arbitrator.

CREDIT(S)

(Added Pub.L. 117-90, § 2(a), Mar. 3, 2022, 136 Stat. 27.)

9 U.S.C.A. § 402, 9 USCA § 402

Current through P.L.118-13. Some statute sections may be more current, see credits for details.

End of Document © 2023 Thomson Reuters. No claim to original U.S. Government Works.

© 2023 Thomson Reuters. No claim to original U.S. Government Works. App.13 1

§ 21.141. Definitions, TX LABOR § 21.141

Vernon's Texas Statutes and Codes Annotated

Labor Code (Refs & Annos)
Title 2. Protection of Laborers
Subtitle A. Employment Discrimination
Chapter 21. Employment Discrimination (Refs & Annos)
Subchapter C-1. Sexual Harassment

V.T.C.A., Labor Code § 21.141

§ 21.141. Definitions

Effective: September 1, 2021

Currentness

In this subchapter:

(1) “Employer” means a person who:

(A) employs one or more employees; or

(B) acts directly in the interests of an employer in relation to an employee.

(2) “Sexual harassment” means an unwelcome sexual advance, a request for a sexual favor, or any other verbal or physical
conduct of a sexual nature if:

(A) submission to the advance, request, or conduct is made a term or condition of an individual's employment, either
explicitly or implicitly;

(B) submission to or rejection of the advance, request, or conduct by an individual is used as the basis for a decision
affecting the individual's employment;

(C) the advance, request, or conduct has the purpose or effect of unreasonably interfering with an individual's work
performance; or

(D) the advance, request, or conduct has the purpose or effect of creating an intimidating, hostile, or offensive working
environment.

Credits
Added by Acts 2021, 87th Leg., ch. 172 (S.B. 45), § 1, eff. Sept. 1, 2021.

© 2023 Thomson Reuters. No claim to original U.S. Government Works. App.14 1

§ 21.141. Definitions, TX LABOR § 21.141

V. T. C. A., Labor Code § 21.141, TX LABOR § 21.141

Current through the end of the 2023 Regular and Second Called Sessions of the 88th Legislature.

End of Document © 2023 Thomson Reuters. No claim to original U.S. Government Works.

© 2023 Thomson Reuters. No claim to original U.S. Government Works. App.15 2

 Automated Certificate of eService
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Samantha Jacobs on behalf of Sona Ramirez

Bar No. 24040330
[email protected]
Envelope ID: 80254946
Filing Code Description: Brief Not Requesting Oral Argument
Filing Description: Appellant's Brief
Status as of 10/4/2023 3:46 PM CST

Associated Case Party: Victory Capital Management, Inc.

Name BarNumber Email TimestampSubmitted Status

Adam DBoland [email protected] 10/4/2023 3:39:54 PM SENT

Sona Ramirez [email protected] 10/4/2023 3:39:54 PM SENT

Samantha Jacobs [email protected] 10/4/2023 3:39:54 PM SENT

Charlie Hayes [email protected] 10/4/2023 3:39:54 PM SENT

Cynthia Zamorano [email protected] 10/4/2023 3:39:54 PM SENT

Associated Case Party: Julianne Bass

Name BarNumber Email TimestampSubmitted Status

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Thomas Crane [email protected] 10/4/2023 3:39:54 PM SENT

Christian Sears [email protected] 10/4/2023 3:39:54 PM SENT