     Case: 13-20572      Document: 00512859801         Page: 1    Date Filed: 12/05/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 13-20572                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
FLOYD L. SAVANT,                                                         December 5, 2014
                                                                           Lyle W. Cayce
              Plaintiff - Appellant                                             Clerk

v.

APM TERMINALS,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:11-CV-1980


Before HIGGINBOTHAM, CLEMENT, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:*
       Floyd L. Savant appeals the district court’s grant of summary judgment
in favor of his employer, Universal Maritime Service Corp. (“Universal
Maritime”), 1 dismissing his claim under the Age Discrimination in




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
       1Universal Maritime claims that Savant erroneously sued “APM Terminals,” the
Appellee named in the case caption. Universal Maritime also does business as APM
Terminals.
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                                        No. 13-20572
Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. For the following reasons,
we AFFIRM.
                            FACTS AND PROCEEDINGS
      Until October 2009, Savant worked as a yard tractor 2 operator at one of
Universal Maritime’s port terminal facilities. Universal Maritime is a member
of the West Gulf Maritime Association (“West Gulf”), a multi-employer trade
association that negotiates and administers multi-employer collective
bargaining agreements with the International Longshoremen’s Association
(“ILA” or the “Union”) and its affiliated local unions. Savant, who was born in
1934, has been a member of the ILA Local No. 24 for over twenty years.
      A      collective    bargaining      agreement       (“CBA”)     governed       Savant’s
employment at Universal Maritime. The South Atlantic and Gulf Coast
District (“SAGC District”) had negotiated this agreement with West Gulf on
behalf of the Union. The CBA states that its grievance procedure and
arbitration “shall be the exclusive remedy with respect to any and all disputes
arising between the Union or any person working under the Agreement . . . and
the Association or any company acting under the Agreement.” In addition to
the CBA, the SAGC District and West Gulf also negotiated a Memorandum of
Understanding (“MOU”) to supplement the CBA’s terms. The MOU states that
“[a]ny complaint that there has been a violation of any employment law, such
as . . . [the] ADEA, . . . shall be resolved solely by the grievance and arbitration
provisions of the collective bargaining agreement.” The MOU also states that
its procedure “shall be a worker’s sole remedy for a violation of any anti-
discrimination or employment law.”
      In October 2009, while Savant was operating a yard tractor, he was
involved in an accident with an over-the-road driver who ran through a stop


      2   A yard tractor is a truck that is used to haul large shipping containers.
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                                      No. 13-20572
sign. Both vehicles were damaged. As required under the applicable
Occupational Safety and Health Administration (“OSHA”) regulations and an
OSHA industry settlement agreement, Universal Maritime referred Savant to
a refresher training and evaluation for operating powered industrial trucks
(“PITs”). See 29 C.F.R. § 1910.178(l)(4)(ii)(B). A PIT operator who does not pass
this evaluation will not be recertified and will not be permitted to operate PIT
equipment until he successfully completes the PIT refresher training. Under
West Gulf’s training policies, a PIT operator who fails the evaluation three
times in one year must wait one year before he will be permitted to attend the
training again.
       Savant attended PIT refresher training three times during the year
following the October 2009 accident, and Universal Maritime contends that he
failed the evaluation each time. As a result, he is no longer allowed to operate
PIT equipment at Universal Maritime. Savant has nevertheless continued
working at Universal Maritime’s facilities in different job classifications,
earning the same hourly rate that he made as a PIT operator. Instead of filing
a grievance through the Union challenging his evaluation results, Savant filed
this lawsuit in federal court, alleging age discrimination in violation of the
ADEA.
       In the district court, Universal Maritime filed a motion for summary
judgment, arguing that Savant lacked standing because he failed to exhaust
the CBA and MOU’s grievance and arbitration procedures. 3 The district court
granted the motion for lack of standing and entered judgment in favor of
Universal Maritime. This appeal timely followed.




       Universal Maritime argued in the alternative that, even if Savant had standing, his
       3

ADEA claim nevertheless failed on the merits. The district court did not reach this argument.
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                          STANDARD OF REVIEW
      This court reviews a district court’s grant of summary judgment de novo,
applying the same standards as the district court. Rogers v. Bromac Title
Servs., L.L.C., 755 F.3d 347, 350 (5th Cir. 2014). Summary judgment is
appropriate “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). A genuine issue of material fact exists if “the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding whether
a fact issue exists, courts must view the facts and draw reasonable inferences
in the light most favorable to the nonmoving party. Scott v. Harris, 550 U.S.
372, 378 (2007). This court is “not limited to the district court’s reasons for its
grant of summary judgment and may affirm the district court’s summary
judgment on any ground raised below and supported by the record.” Rogers,
755 F.3d at 350 (internal quotation marks omitted).
                                 DISCUSSION
      The district court held that Savant lacked standing to bring his ADEA
claim in federal court because he had failed to exhaust the grievance and
arbitration remedies under the CBA and MOU. A plaintiff is ordinarily
“required to attempt to exhaust any grievance or arbitration remedies provided
in [a] collective bargaining agreement” before seeking relief in federal court.
See DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 163 (1983); Harris v.
Chem. Leaman Tank Lines, Inc., 437 F.2d 167, 170 & n.3 (5th Cir. 1971). This
principle applies even when a plaintiff is alleging employment discrimination
in violation of a federal statute. In 14 Penn Plaza LLC v. Pyett, the Supreme
Court clarified that, in the absence of statutory language to the contrary, a
union may agree with an employer to submit employees’ statutory claims
exclusively to arbitration or another non-judicial grievance procedure. 556 U.S.
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247, 256–58, 274 (2009). For that agreement to be enforceable, however, the
CBA must “clearly and unmistakably require[] union members to arbitrate.”
Id. at 274. In Penn Plaza, the Court held that this “clear and unmistakable”
standard was satisfied when an anti-discrimination provision explicitly
referenced the ADEA and stated that “[a]ll such claims shall be subject to the
grievance and arbitration procedures . . . as the sole and exclusive remedy for
violations.” Id. at 252, 260.
      This court applied Penn Plaza’s test in Ibarra v. United Parcel Service,
695 F.3d 354 (5th Cir. 2012). The court agreed with other circuits that have
concluded that, “for a waiver of an employee’s right to a judicial forum for
statutory discrimination claims to be clear and unmistakable, the CBA must,
at the very least, identify the specific statutes the agreement purports to
incorporate or include an arbitration clause that explicitly refers to statutory
claims.” Id. at 359–60. In Ibarra, the court concluded that the CBA did not
require an employee to submit her Title VII claim to the grievance process
because the CBA only stated generally that “any controversy, complaint,
misunderstanding or dispute arising as to interpretation, application or
observance of any of the provisions of this Agreement” must be submitted to
the grievance process. Id. at 356–57.
      This dispute therefore turns on whether the district court properly
concluded that there was no genuine issue of fact as to whether the MOU and
the CBA, when read together, clearly and unmistakably waived union
members’ right to a judicial forum for ADEA and other statutory
discrimination claims. When interpreting a collective bargaining agreement,
federal law governs. See Int’l Ass’n of Machinists & Aerospace Workers v.
Masonite Corp., 122 F.3d 228, 231 (5th Cir. 1997); see also Textile Workers
Union v. Lincoln Mills of Ala., 353 U.S. 448, 456–57 (1957). Nevertheless,
“courts may draw upon state rules of contractual interpretation to the extent
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                                 No. 13-20572
that those rules are consistent with federal labor policies.” Nichols v. Alcatel
USA, Inc., 532 F.3d 365, 377 (5th Cir. 2008) (internal quotation marks
omitted). “However, the construction and application of a collective bargaining
agreement’s terms cannot be strictly confined by ordinary principles of contract
law.” United Paperworkers Int’l Union v. Champion Int’l Corp., 908 F.2d 1252,
1256 (5th Cir. 1990). “The provisions of a labor contract may be more readily
expanded by implication than those of contracts memorializing other
transactions.” Id. Moreover, “[w]hen several documents represent one
agreement, all must be construed together in an attempt to discern the intent
of the parties, and the court should attempt to give effect to every contractual
provision.” Id.
      Here, the CBA, by itself, is not clear and unmistakable. It states:
      This grievance procedure and arbitration shall be the exclusive
      remedy with respect to any and all disputes arising between the
      Union or any person working under the Agreement . . . and [West
      Gulf] or any company acting under the Agreement . . . and no other
      remedies shall be utilized, except those remedies specifically
      provided for under this Agreement.


Like the CBA in Ibarra, the CBA governing Savant’s employment does not
specifically identify the ADEA, and it does not state that statutory
discrimination claims are subject to its grievance and arbitration procedures.
Therefore, the CBA alone cannot bar Savant from filing suit under the ADEA.
      The MOU, however, is clear and unmistakable. It states: “Any complaint
that there has been a violation of any employment law, such as . . . [the]
ADEA, . . . shall be resolved solely by the grievance and arbitration provisions
of the collective bargaining agreement.” The MOU further clarifies that its
procedure “shall be a worker’s sole remedy for a violation of any anti-
discrimination or employment law.” Although Penn Plaza and Ibarra only
addressed the clarity of arbitration clauses in CBAs, Savant has not
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                                       No. 13-20572
articulated a reason not to extend the rule from those cases to clauses in an
MOU or other agreement that is binding on the union and the employer. In
other words, for an arbitration agreement to be enforceable as to statutory
claims, either the CBA or an ancillary agreement binding the union and the
employer must satisfy the “clear and unmistakable” rule. See Anglin v. Ceres
Gulf Inc., 503 F. App’x 254, 255 (5th Cir. 2012) (noting that if an MOU between
the union and employer bound the employee, the employee would not have
been able to bring her statutory claims in federal court because “[t]he MOU
specifically identifie[d] Title VII” and indicated that “complaints brought under
that statute are subject to the CBA’s grievance and arbitration provisions”).
Therefore, here, given the MOU’s explicit references to the ADEA and other
statutory discrimination claims, the district court properly concluded that the
MOU satisfies the Ibarra requirement.
       On appeal, Savant argues that the district court erred because the MOU
was voluntary, but not binding on the Union. First, Savant emphasizes that
West Gulf and the Union never signed the MOU. This fact, however, is not
dispositive. “An employer can in writing obligate itself to follow portions of a
collective bargaining agreement without signing the collective bargaining
agreement itself.” D.E.W., Inc. v. Local 93, Laborers’ Int’l Union, 957 F.2d 196,
201 (5th Cir. 1992); see also NLRB v. Beckham, Inc., 564 F.2d 190, 194 (5th
Cir. 1977) (“Once an agreement has been reached, . . . it is an unfair labor
practice for a party to refuse to sign the written contract.”). 4 Indeed, a CBA



       4  Our sister circuits have reached similar conclusions. See, e.g., Bricklayers Local 21
of Ill. Apprenticeship & Training Program v. Banner Restoration, Inc., 385 F.3d 761, 767 (7th
Cir. 2004) (“[A] signature to a collective bargaining agreement is not a prerequisite to finding
an employer bound to that agreement.”); Brown v. C. Volante Corp., 194 F.3d 351, 352, 354–
56 (2d Cir. 1999) (holding that the conduct of an employer who did not sign two CBAs, but
paid contributions and wages at the rates agreed to in the agreements, manifested an intent
to adopt the unsigned agreements); Trs. of Wyo. Laborers Health & Welfare Plan v. Morgen
& Oswood Constr. Co. of Wyo., 850 F.2d 613, 622 (10th Cir. 1988) (concluding that the parties
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                                     No. 13-20572
need not even be reduced to writing. “Instead, what is required is conduct
manifesting an intention to abide by the terms of an agreement.” NLRB v.
Haberman Constr. Co., 641 F.2d 351, 356 (5th Cir. 1981).
      The evidence in the record supports the district court’s conclusion that
the parties intended to be bound by the MOU. First, with no objection from
Savant’s counsel, Savant admitted at his deposition that the MOU was an
agreement between his local union and West Gulf on how statutory
discrimination claims would be resolved. He also admitted that he had
authorized the Union to enter into these types of agreements on his behalf.
Universal Maritime also submitted an affidavit from the current president of
West Gulf stating that the MOU procedures had been applied to the ILA locals
and have been used since at least 2004. Indeed, the former president of West
Gulf had sent the unions a letter confirming that the local unions would be
bound by the MOU, and there is no evidence in the record that Savant’s local
union tendered an objection to that letter. Next, legal representatives of West
Gulf, the SAGC District, and ILA Local No. 24 (Savant’s local union) gave a
presentation in May 2008 about the MOU’s grievance and arbitration
procedure, describing it as “a worker’s sole remedy for any violation of anti-
discrimination laws.” Finally, at least four grievance reports were filed
between July 2008 and April 2011 by ILA locals, including one from Savant’s
local union, adjudicating discrimination claims using the MOU’s grievance and
arbitration procedures.




had reached an agreement even though the Union had not yet signed a “Laborers Compliance
Agreement”); NLRB v. Deauville Hotel, 751 F.2d 1562, 1569 n.10 (11th Cir. 1985) (“The[] act
of signing [the CBA] was nothing more than ministerial.”).
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                                    No. 13-20572
      Resisting the conclusion that the MOU is binding on the parties, Savant
contends that the Union rejected the MOU. 5 Savant, however, fails to cite any
evidence in the summary judgment record that supports this assertion. For
one, there is no indication in the record that the Union’s constitution, bylaws,
or rules and regulations required the Union to submit proposed agreements or
MOUs to the union membership for approval. Without such a requirement, the
Union could have agreed to the MOU without ever consulting the local unions
and union membership. See O’Neill v. Air Line Pilots Ass’n, Int’l, 886 F.2d 1438,
1447 (5th Cir. 1989) (“The [Labor Management Reporting Disclosure Act, 29
U.S.C. § 411(a)(1),] does not require submission of proposed agreements or any
segments thereof to the membership; nor grant members the right to vote on
negotiating, executing and approving contracts.”), rev’d on other grounds, 499
U.S. 65 (1991); see also White v. White Rose Food, 237 F.3d 174, 182 (2d Cir.
2001) (“Federal labor law does not require rank-and-file ratification of
employer-union agreements. Such ratification is required only if the union’s
constitution or by-laws or the agreement itself so provides.” (citations
omitted)). Moreover, in his application for membership in the Union, Savant
signed a statement agreeing to “ratify and approve any collective bargaining
agreement entered into on [his] behalf by the Union.”
      Finally, finding no support in the summary judgment record of this
lawsuit, Savant relies instead on this court’s unpublished opinion in Anglin v.
Ceres Gulf Inc. In Anglin, the court considered a similar set of characters—the
ILA, the SAGC District, and West Gulf—and the same CBA and MOU. 503 F.
App’x at 254–55. Martha Anglin, the plaintiff, had filed a Title VII lawsuit
against her employer and West Gulf, and West Gulf, in turn, similarly argued


      5In an interrogatory response, Savant also claimed that “[t]here are not any
memoranda of agreement or understanding that has [sic] been approved by the union and its
members.”
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                                       No. 13-20572
that Anglin was required to pursue her discrimination claim through the
grievance and arbitration procedure. Id. at 255. Savant argues that Anglin
“established” that “the union has rejected the MOU.” But that is a
mischaracterization of the court’s holding: Anglin reversed the grant of
summary judgment against Anglin because “[t]here remain[ed] a factual
question as to whether [the MOU] is binding on Anglin.” Id. As the court
explained, Anglin’s uncontroverted testimony was that “the MOU was rejected
by local union members.” Id. Anglin, however, belonged to a different ILA local
union (Local No. 1351) than the local union that represents Savant (Local No.
24). Id. at 254. Therefore, Anglin’s testimony about Local No. 1351’s rejection
of the MOU does not create a genuine issue of fact as to whether Savant’s Local
No. 24 rejected or approved the MOU. 6 And as discussed above, the summary
judgment record in this case supports the district court’s conclusion that the
MOU bound Savant’s local union.
       Having resolved that the parties in this case have a valid agreement to
arbitrate Savant’s ADEA claim, the court concludes that the arbitration
provisions in the CBA and MOU must be enforced. Because Savant did not
exhaust the CBA’s grievance procedures, he lacks standing to pursue his
ADEA claim in federal court. The court therefore will not address the merits
of his age discrimination claim.
                                     CONCLUSION
       For the foregoing reasons, we AFFIRM the district court’s grant of
summary judgment in favor of Universal Maritime.



       6 Savant’s reliance on an affidavit from Martha Anglin that he filed in his own lawsuit
is similarly misplaced because it discusses Anglin’s local union, not Savant’s. Moreover, the
district court struck the Anglin affidavit, and Savant does not challenge the district court’s
ruling on the motion to strike on appeal. See St. Paul Mercury Ins. Co. v. Williamson, 224
F.3d 425, 445 (5th Cir. 2000) (“Generally, we deem abandoned those issues not presented and
argued in an appellant’s initial brief . . . .”).
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