                    UNITED STATES COURT OF APPEALS
                         For the Fifth Circuit



                             No. 97-30895




                            ANDRE MOUTON,

                                                  Plaintiff-Appellee,

                                versus

      METROPOLITAN LIFE INSURANCE COMPANY; RODNEY SCHMIDT,

                                                  Defendants-Appellants.



             Appeal from the United States District Court
                 for the Western District of Louisiana
                            July 31, 1998
Before WISDOM, KING, and DAVIS, Circuit Judges:
WISDOM, Circuit Judge:

                           I. Introduction


     This case presents a matter of first impression in this Court.


It requires us to decide whether a securities dealer who agreed to


arbitrate “any dispute, claim or controversy that may arise between


[himself] and [his] firm” is compelled to arbitrate his Title VII


discrimination claim against his employer.


     Andre    Mouton   (“Mouton”)   worked   as   a   sales   agent   for
Metropolitan Life Insurance Co. (“Metropolitan”), a member firm of


the National Association of Securities Dealers (“NASD”).             As a


seller of mutual funds, he was required to be licensed by the NASD.


In 1989, he submitted a Uniform Application of Securities Industry


Regulation, also known as a U-4 Registration, to the NASD for the


purpose   of   procuring   a   license.   Under   the   terms   of    the


application, Mouton agreed to:


     arbitrate any dispute, claim or controversy that may arise
     between me and my firm, or a customer, or any other person,
     that is required to be arbitrated under the rules,
     constitutions or by-laws of the [NASD] as may be amended
     from time to time.


At the time Mouton submitted his application, § 1 of the NASD Code


provided, in pertinent part, that arbitration was required for:


     any dispute, claim or controversy arising out of or in
     connection with the business of any member of the
     Association, with the exception of disputes involving the
     insurance business of any member which is also an insurance
     company:

     (2) between or among members and public customers, or
     others.


Section 8 of the Code further provided, in pertinent part, that:


     any dispute, claim or controversy ... between or among
     members and/or associated persons, and/or certain others,

                                    2
     arising in connection with the business of such member(s) or
     in connection with the activities of such associated
     person(s), shall be arbitrated under this Code, at the
     instance of:

     (2) a member against a person associated with a member of a
     person associated with a member against a member.


“Section 1 [of the NASD Code] defines the general universe of


issues that may be arbitrated, and § 8 describes a subset of that


universe that must be arbitrated under the [NASD] Code.”1


     In 1993, the Securities and Exchange Commission amended § 1 of


its NASD rules to provide for:


     the arbitration of any dispute, claim or controversy arising
     out of or in connection with the business of any member of
     the [NASD] or arising out of the employment or termination
     of employment of associated person(s) with any member, with
     the exception of disputes involving the insurance business
     of any member which is also an insurance company.



Mouton did not file a second U-4 Registration after the 1993


amendments to the NASD Code took effect.


     In July 1995, Mouton testified against Metropolitan in a Title


VII sexual harassment action brought by one of his co-workers.   At



     1
       Armijo v. Prudential Insurance Co. of America, 72 F.3d 793,
798 (10th Cir. 1995).

                                 3
the time of his testimony, Mouton was on disability leave stemming


from a work-related accident that occurred in 1994. Mouton alleges


that when he attempted to return to work in 1995, Metropolitan


embarked on a course of unlawful employment action against him in


retaliation for the unfavorable testimony he gave earlier in the


year. This retaliation, says Mouton, culminated in the termination


of his employment in February 1996.    Mouton received a right to sue


letter from the EEOC, and filed his own Title VII complaint against


Metropolitan on December 18, 1996.


     Metropolitan   sought   summary   judgment   under   the   Federal


Arbitration Act2 on the basis that Mouton had entered into a


binding agreement with the NASD to arbitrate all claims arising


from his employment with Metropolitan.     The district court denied


the motion on the ground that a genuine issue of material fact


existed regarding whether the 1989 NASD Code, which, unlike the

     2
       9 U.S.C. § 1 et seq. The Federal Arbitration Act provides
the authority for the enforcement of arbitration clauses as a
matter of federal law. In re Prudential Insurance Co. of America
Sales Practice Litigation, 133 F.3d 225, 230 (3d Cir. 1998).

                                  4
1993 amended version, did not specifically require arbitration of


employment-related disputes, required him to arbitrate his Title


VII claim.      The district court did, however, grant Metropolitan’s


subsequent motion to stay further proceedings pending its appeal of


the denial of its motion for summary judgment.          We hold that Mouton


is   required    to   submit   his   Title   VII   action   to   arbitration.


Metropolitan is therefore entitled to a summary judgment in its


favor.


                               II. Discussion


      We review the denial of summary judgment de novo, applying


the same standard the district court applied.3


          A. Scope of the pre-1993 NASD Arbitration Provisions


      Our first task is to decide whether the pre-1993 NASD Code


required arbitration of employment disputes such as that brought


by Mouton.      If we conclude that it did, we need not decide what




      3
          Blackwell v. Barton, 34 F.3d 298, 301 (5th Cir. 1994).

                                       5
effect, if any, the 1993 amendments to the Code had on Mouton’s


licensing agreement.   The majority of circuits which have


considered this precise issue have concluded that the pre-1993


NASD Code mandated arbitration of employment-related disputes.4


For the following reasons, we side with the plain weight of


authority.


     First, the NASD, itself, has made it abundantly clear that


the pre-1993 Code’s arbitration provisions encompassed


employment-related controversies.    In 1987, it stated that


employment disputes between its members and their registered


representatives, such as securities dealers, were subject to




     4
       See Seus v. John Nuveen & Co., Inc., 1998 WL 294020 (3d Cir.
(Pa.)); Thomas James Associates, Inc. v. Jameson, 102 F.3d 60 (2d
Cir. 1996); Armijo v. Prudential Insurance Co. of America, 72 F.3d
793 (10th Cir. 1995); Kidd v. Equitable Life Assurance Society of
the United States, 32 F.3d 516 (11th Cir. 1994). See also
Association of Investment Brokers v. Securities and Exchange
Commission, 676 F.2d 857, 861 (D.C. Cir. 1982) (NASD rules mandate
arbitration of employer-employee disputes, and did so, to the same
extent, as they do now, before the development of [U-4
forms])(dicta). But see Duffield v. Robertson Stephens & Co., 1998
WL 227469 (9th Cir. (Ca.)); Farrand v. Lutheran Brotherhood, 993
F.2d 1253 (7th Cir. 1993).

                                 6
compulsory arbitration.5    Furthermore, at the time the Code was


amended in 1993, it explained that the inclusion of new language


in § 1 was not intended to broaden the category of matters


subject to compulsory arbitration, but rather to clarify that


employer-employee disputes indeed fell within the ambit of the


Code’s arbitration provisions.6


     Second, “questions of arbitrability must be addressed with a


healthy regard for the federal policy favoring arbitration... The


Arbitration Act establishes that, as a matter of federal law, any


doubts concerning the scope of arbitrable issues should be


resolved in favor of arbitration.”7       We have no doubt that the


pre-1993 Code contemplated that employment-related claims were


subject to mandatory arbitration.        Even if, however, we were to


     5
         52 Fed.Reg. 9232 (1987).
     6
         58 Fed.Reg. 39071 (1993).
     7
       Moses H. Cone Hospital v. Mercury Construction Corp., 460
U.S. 1, 24-25 (1983). See also Rojas v. TK Communications, Inc.,
87 F.3d 745, 747 (5th Cir. 1996) (whenever the scope of an
arbitration clause is in question, the court should construe the
clause in favor of arbitration).

                                     7
acknowledge an that the arbitration provisions at issue were


ambiguous, we would nevertheless be compelled to conclude that


they covered employment-related disputes.     Indeed, “to


acknowledge the ambiguity is to resolve the issue, because all


ambiguities must be resolved in favor of arbitrability.”8


     Third, we have already stated that an arbitration clause


need not speak directly to employment-related disputes for it to


mandate arbitration of Title VII claims.9     In Rojas v. TK


Communications, Inc.,10 we considered whether a radio station


employee was compelled to submit her sexual harassment claim to


arbitration under the terms of her employment contract.        When the


plaintiff executed her contract, she agreed that “any action


contesting the validity of [the contract], the enforcement of its


financial terms, or other disputes [would] be submitted to


     8
          Armijo v. Prudential Insurance Co. of America at 798.
     9
          Rojas v. TK Communications, Inc., 87 F.3d 745 (5th Cir.
1996).
     10
          Id.

                                   8
arbitration.    We held that the “other disputes” language in the


arbitration clause was sufficiently broad to encompass Title VII


claims.11    Even though we did not decide Rojas in the context of


the NASD’s arbitration provisions, its reasoning should apply to


the case at bar.    Mouton agreed to arbitrate “any dispute, claim


or controversy that may arise between [himself] and


[Metropolitan].”    This language, like that at issue in Rojas, is


broad, and, we conclude, is sufficiently broad to encompass Title


VII claims.


                          B. Remaining Issues


     Mouton argues that his claim is not subject to compulsory


arbitration because it falls within § 1's exception for “disputes


involving the insurance business of any member which is also an


insurance company.”     Two circuits have already rejected this




     11
          Id. at 749.

                                   9
argument.12     We reject it, too.   In In re Prudential Insurance


Co. of America Sales Practice Litigation, the Third Circuit held


that the NASD Code reflected “one clear expression of intent --


that employment disputes are subject to arbitration while


intrinsically insurance claims are not.”13      Accordingly, it


concluded that a plaintiff’s retaliation claim, which was wholly


unrelated to Prudential’s insurance business, was subject to


compulsory arbitration.14     Likewise, in Armijo v. Prudential


Insurance Co. of America, the Tenth Circuit dismissed the


plaintiff’s assertion that employment-related controversies


involving insurance companies were ineligible for submission to


arbitration.15     It reasoned:


     Although Prudential is an insurance company, there is


     12
       In re Prudential Insurance Co. of America Sales Practice
Litigation, 133 F.3d 225 (3d Cir. 1998); Armijo v. Prudential
Insurance Co. of America, 72 F.3d 793 (10th Cir. 1995).
     13
          In re Prudential Insurance Co. at 234.
     14
          Id.
     15
          Armijo at 800.

                                     10
     nothing unique about these discrimination claims by
     plaintiffs that involve the insurance business of
     Prudential.... Illegal employment discrimination, if it
     exists, involves an employer’s statutory obligations as an
     employer rather than an insurer.16


We find this line of reasoning particularly persuasive.    Mouton’s


Title VII claims involve Metropolitan’s obligations as an


employer rather than an insurer.    As such, § 1's insurance


business exception is inapposite here.    Furthermore, were we to


conclude otherwise, we would render virtually meaningless any


arbitration agreements between companies involved in the


insurance business and their NASD-licensed employees.    That is,


an expansive reading of the insurance business exception would


deprive a company such as Metropolitan of the benefits of the


arbitration system as embodied within the NASD Code.


     Finally, Mouton argues that he cannot be compelled to


arbitrate his Title VII claim because he did not knowingly and


voluntarily waive his access to a judicial forum.    We implicitly



     16
          Id.

                               11
rejected this argument in Rojas, as has every court that has


concluded that the pre-1993 NASD Code mandated arbitration of


employment-related disputes.    Mouton agreed to arbitrate “any


dispute, claim or controversy that may arise between [himself]


and [Metropolitan]” (emphasis added).   We hold him to that


agreement.


                          III. Conclusion


     For the reasons stated, Mouton is compelled to submit his


Title VII claim to arbitration should he choose to go forward.


The district court’s denial of Metropolitan’s motion for summary


judgment is REVERSED.   We REMAND for further proceedings


consistent with this opinion.




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