     Case: 11-50714   Document: 00511986234    Page: 1   Date Filed: 09/13/2012




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                  FILED
                                                              September 13, 2012

                                  No. 11-50714                   Lyle W. Cayce
                                                                      Clerk

AMBER IBARRA,

              Plaintiff - Appellant

v.

UNITED PARCEL SERVICE,

              Defendant - Appellee




           Appeal from the United States United States District Court
                        for the Western District of Texas


Before KING, HIGGINBOTHAM, and HAYNES, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
        Amber Ibarra brought a Title VII sex discrimination claim against her
former employer. The district court granted summary judgment for Ibarra’s
employer on the ground that the grievance procedure established in a collective
bargaining agreement provided the exclusive remedy for Ibarra’s Title VII claim.
We vacate the district court’s judgment and remand for further proceedings.
                                        I.
        Amber Ibarra worked as a package car driver for the United Parcel Service
(“UPS”).    UPS terminated Ibarra for “recklessness resulting in a serious
accident” after she lost control of her van and struck a telephone pole while
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                                    No. 11-50714

delivering packages. She received a traffic citation, and the UPS vehicle had to
be towed.
      Ibarra filed a grievance under her union’s collective bargaining agreement
(“CBA”) challenging her termination. In her grievance, she claimed that the
decision to fire her was unjust but did not allege sex discrimination. According
to procedures established in Article 51 of the CBA, Ibarra first had a local
hearing, under union representation. Her discharge was upheld at the local
hearing. The local hearing was followed by an evidentiary hearing before the
Southern Regional Area Parcel Grievance Committee (“SRAPGC”), which
unanimously denied her grievance and upheld her termination.1
      Ibarra then filed a charge of sex discrimination with the EEOC. She filed
this Title VII action in the district court within ninety days of receiving a right
to sue notice. UPS filed three motions for summary judgment.2 The first alleged
that Ibarra had not timely filed her complaint after receiving her right to sue
notice from the EEOC. UPS later withdrew that motion. The second motion
argued that UPS was entitled to summary judgment on two grounds: (1) Ibarra
engaged in “serious misconduct” that was not discovered by UPS until Ibarra’s
deposition, and she was “foreclosed from claiming or receiving reinstatement,
front pay, or backpay from the date her misconduct was discovered;” and (2) the
grievance procedure established in the CBA provided Ibarra’s exclusive remedy
for her Title VII sex discrimination claim, and Ibarra “failed to exhaust that
remedy by failing to assert discrimination by UPS in the grievance process.”
UPS’s third motion for summary judgment argued there was a lack of evidence



      1
         Had the SRAPGC deadlocked, Ibarra’s procedure would have proceeded to the
Southern Region Deadlock Committee, and if the Deadlock Committee deadlocked, to
arbitration.
      2
         UPS apparently filed the separate motions for summary judgment because of page
limits established by LOCAL R. CIV. P. 7(d)(3).

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                                          No. 11-50714

supporting Ibarra’s claim of sex-based disparate treatment. The district court
agreed that Ibarra failed to pursue her exclusive remedy for her Title VII claim
and granted summary judgment for UPS on that ground. It did not reach the
merits of UPS’s other summary judgment motions. Ibarra timely appealed.
                                                II.
      We review a grant of summary judgment de novo, applying the same
standard as the district court.3 “Summary judgment is proper if the pleadings
and evidence show there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law.”4
                                                III.
      On appeal, Ibarra argues that the district court erred in two respects.
First, she maintains that the district court erred in its finding that the collective
bargaining agreement explicitly provides that statutory discrimination claims
are subject to the grievance process. Second, she argues that UPS did not
adequately plead the affirmative defense that the CBA provided the exclusive
remedy for Ibarra’s sex discrimination claim. We agree that the district court
erred in its finding that the CBA’s Article 51 grievance process is the exclusive
remedy for Title VII claims brought by UPS employees like Ibarra, and we do not
reach Ibarra’s second argument.
                                                A.
      The grievance process established in the CBA forms the exclusive remedy
for Ibarra’s Title VII claim only if the CBA clearly and unmistakably waives
Ibarra’s right to pursue her Title VII claim in a judicial forum. The question
whether the grievance process is Ibarra’s exclusive remedy turns on the
relationship between the Supreme Court’s 1974 decision in Alexander v.


      3
          See Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 650 (5th Cir. 2012).
      4
          Id. (citing FED. R. CIV. P. 56(a)).

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                                      No. 11-50714

Gardner-Denver and its more recent holding in 14 Penn Plaza LLC v. Pyett. In
Gardner-Denver,5 the Supreme Court held that by resorting to an arbitrator for
a discrimination claim brought pursuant to a collective bargaining agreement,
an employee did not thereby waive her right to bring a Title VII claim in federal
court.6 The crux of the Court’s decision was its recognition that the employee
had separate statutory and contractual rights.7          The Court explained: “In
submitting his grievance to arbitration, an employee seeks to vindicate his
contractual right under a collective-bargaining agreement. By contrast, in filing
a lawsuit under Title VII, an employee asserts independent statutory rights
accorded by Congress.”8 The Court suggested that “[a]rbitral procedures . . .
make arbitration a comparatively inappropriate forum for the final resolution
of rights created by Title VII.”9
      Thirty-five years later, the Court in Penn Plaza10 drained force from
Gardner-Denver’s statements suggesting that arbitral procedures are inadequate
to address statutory discrimination claims.11 Relegating those statements
to dicta,12 the Court did not purport to overrule Gardner-Denver, holding only
that “a collective-bargaining agreement that clearly and unmistakably requires
union members to arbitrate [Age Discrimination in Employment Act (“ADEA”)]



      5
          415 U.S. 36 (1974).
      6
          Id. at 52.
      7
          See id. at 50.
      8
          Id. at 49-50.
      9
          Id. at 56.
      10
           556 U.S. 249 (2009).
      11
           Id. at 265.
      12
           Id.

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claims is enforceable as a matter of federal law.”13 That holding built on the
Court’s prior decision in Wright v. Universal Maritime Services Corp,14 which
held that the right to a federal judicial forum for federal employment
discrimination claims “is of sufficient importance to be protected against
less-than-explicit union waiver in a CBA.”15
                                              B.
      Turning to the CBA in this case, we ask whether it “clearly and
unmistakably requires union members” to submit their Title VII claims to the
grievance process established by the agreement.16 An answer requires a close
look at two provisions, Article 51 and Article 36. Article 51 describes grievance
procedures and defines a grievance as “any controversy, complaint,
misunderstanding or dispute arising as to interpretation, application or
observance of any of the provisions of this Agreement.” It provides that “any
grievance, complaint, or dispute” shall be handled in the manner specified in the
Article. The procedures culminate in submission of a grievance to an arbitrator
through the Federal Mediation and Conciliation Service, but only if the
grievance “cannot be satisfactorily settled by a majority decision of a panel of the
[Southern Regional Area Parcel Grievance Committee] and Deadlock Panel.”
           Article 36 is a nondiscrimination provision. It states:
      The Employer and the Union agree not to discriminate against any
      individual with respect to hiring, compensation, terms or conditions
      of employment because of such individual’s race, color, religion, sex,
      sexual orientation, national origin, physical disability[,] veteran
      status or age in violation of any federal or state law, or engage in
      any other discriminatory acts prohibited by law, nor will they limit,

      13
           Id. at 274.
      14
           525 U.S. 70 (1998).
      15
           Id. at 80.
      16
           Penn Plaza, 556 U.S. at 252.

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      segregate or classify employees in any way to deprive any individual
      employees of employment opportunities because of race, color,
      religion, sex, national origin, physical disability, veteran status or
      age in violation of any federal or state law, or engage in any other
      discriminatory acts prohibited by law. This Article also covers
      employees with a qualified disability under the Americans with
      Disabilities Act.

Article 36 mentions no specific federal or state statutes and makes no reference
to the grievance procedures set forth in Article 51. The CBA contains no express
waiver of a judicial forum for claims brought pursuant to Title VII.
      A closer look at the controlling Supreme Court precedent confirms that the
language of Article 51 and Article 36 is insufficient to waive Ibarra’s right to a
judicial forum for statutory discrimination claims. The Penn Plaza collective
bargaining agreement, which clearly and unmistakably waived union members
right to pursue ADEA claims in a judicial forum, included a nondiscrimination
provision that expressly provided for the arbitration of claims brought pursuant
to the ADEA and other federal statutes.17 Like Article 36, the Penn Plaza
provision stated that the employer would not discriminate against the employee
on the basis of any characteristic protected by law.18 Unlike Article 36, the Penn
Plaza provision explicitly incorporated “claims made pursuant to . . . the Age
Discrimination in Employment Act” and specified that such claims “shall be
subject to the [CBA’s] grievance and arbitration procedure . . . as the sole and
exclusive remedy for violations,” cross-referencing the relevant CBA articles.19


      17
           See id.
      18
           See id.
      19
           Id. The Penn Plaza nondiscrimination clause read:

      30. NO DISCRIMINATION
      There shall be no discrimination against any present or future employee by
      reason of . . . any characteristic protected by law, including, but not limited to,
      claims made pursuant to Title VII of the Civil Rights Act, the Americans with

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Indeed, the Penn Plaza respondents – who argued that arbitral forums could not
adequately protect statutory nondiscrimination rights – had “acknowledged on
appeal that the CBA provision requiring arbitration of their federal
antidiscrimination statutory claims ‘[was] sufficiently explicit’ in precluding
their federal lawsuit.”20
       Despite the fact that the nondiscrimination provision in this case does not
specifically identify Title VII or state that statutory discrimination claims shall
be subject to the Article 51 grievance procedure, UPS argues that the CBA read
as a whole waives Ibarra’s right to bring her Title VII claim in a judicial forum
because the language of Article 36 obligates the company to comply with federal
and state employment discrimination laws.21 Essentially, UPS reasons that by
making the nondiscrimination rights guaranteed by the CBA coterminous with
those under federal and state law, Article 36 brings Title VII claims within the
scope of the controversies, complaints, and disputes that must be resolved via




       Disabilities Act, the Age Discrimination in Employment Act, the New York
       State Human Rights Law, the New York City Human Rights Code, . . . or any
       other similar laws, rules, or regulations. All such claims shall be subject to the
       grievance and arbitration procedure (Articles V and VI) as the sole and
       exclusive remedy for violations. Arbitrators shall apply appropriate law in
       rendering decisions based upon claims of discrimination.

Id. (alteration in original) (citation and quotation marks omitted).
       20
            Id. at 272.
       21
           At oral argument, UPS for the first time suggested that the Article 51 does not
establish the grievance procedure as an exclusive remedy, that the CBA merely imposes an
exhaustion requirement, and that we need not decide whether Article 51 waives Ibarra’s right
to a judicial forum. This argument is dubious, and in fact conflicts with the position UPS has
taken throughout the litigation. Regardless, we do not consider arguments not included in a
party’s briefs. See, e.g., United States v. Ogle, 415 F.3d 382, 383 (5th Cir. 2005) (“Our cases
make it clear that an argument not raised in appellant’s original brief as required by FED. R.
APP. P. 28 is waived.”).

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the grievance procedures set forth in Article 51. In the words of the Tenth
Circuit, such reasoning requires a “logical jump.”22
       Under Gardner-Denver, an employee’s statutory and contractual rights
remain independent even if “the contours of the CBA’s antidiscrimination
protections [are] defined by reference to federal law.”23             Thus, in Mathews v.
Denver Newspaper Agency LLP, the Tenth Circuit rejected a district court’s
finding that an arbitration provision covering disputes regarding the contract
applied to an employee’s statutory discrimination claims merely because “actions
or omissions that would otherwise constitute statutory violations [were] also
violations of [the] agreement.”24 Like this case, Mathews involved a collective
bargaining agreement that prohibited discrimination on various bases “in
accordance with and as required by applicable state and federal laws.”25 The
Tenth Circuit found that, even read in conjunction with the agreement’s
nondiscrimination         provision,    a   requirement       that    disputes      regarding
“interpretation, application, or construction of the contract” be resolved through
arbitration was not sufficient to waive an employee’s right to a judicial forum for
his statutory discrimination claims, explaining that “unionized employees . . .
subjected to discriminatory treatment hold two similar claims, one based in
statute, and one based in contract.”26 The Tenth Circuit reasoned that to waive
employees’ rights to pursue statutory discrimination claims in a judicial forum,


       22
         Mathews v. Denver Newspaper Agency LLP, No. 09-1233, 2011 U.S. App. LEXIS
11454, at *15 (10th Cir. Mar. 16, 2011) (revised opinion on grant of panel rehearing).
       23
         Id. at *16 (citing Gardner-Denver, 415 U.S. 36, 54 (1974); see also Gardner-Denver,
415 U.S. at 50 (“The distinctly separate nature of these contractual and statutory rights is not
vitiated merely because both were violated as a result of the same factual occurrence.”).
       24
            Mathews, 2011 U.S. App. LEXIS 11454, at *16.
       25
            Id. at *4.
       26
            Id. at *17.

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an arbitration provision must “expressly grant[] the arbitrator authority to
decide statutory claims.”27 Other courts have expressed similar views.28
       UPS’s argument that the CBA includes an enforceable waiver of Ibarra’s
right to a judicial forum for her Title VII claim relies heavily on a single Fourth
Circuit decision, Austin v. Owens-Brockway Glass Container, Inc.29 In Austin,
Article 38 of the collective bargaining agreement stated: “The Company and the
Union will comply with all laws preventing discrimination against any employee
because of race, color, religion, sex, national origin, age, handicap, or veteran
status.”30 It also stated: “Any disputes under this Article as with all other
Articles of this Contract shall be subject to the grievance procedure.”31 The
Fourth Circuit held that these CBA provisions waived the plaintiff’s right to
pursue her statutory discrimination claims in a judicial forum because the
agreement “specifically list[ed] gender and disability discrimination as claims
that are subject to arbitration” and the “voluntary agreement [was] consistent
with” Title VII and the ADA.32



       27
            Id. (citing Penn Plaza, 129 S. Ct. at 1469, 556 U.S. at 264; Wright, 525 U.S. at 70-80).
       28
           See Cavallaro v. UMass Mem. Healthcare, Inc., 678 F.3d 1, 7 & n.7 (1st Cir. 2012)
(“[S]everal Supreme Court cases indicate that, at least where federal statutory claims are
concerned, an arbitration clause [in a collective bargaining agreement] can waive a judicial
forum . . . only if such waiver is ‘clear and unmistakable.’ . . . A broadly-worded arbitration
clause . . . will not suffice; rather something closer to specific enumeration of statutory claims
to be arbitrated is required.” (citations omitted)); Powell v. Anheuser-Busch Inc., No. 04-71994,
2011 U.S. App. LEXIS 22322, at *2-*3 (9th Cir. Nov. 3, 2011) (unpublished) (“We will not
interpret a CBA to waive an individual employee’s right to litigate statutory discrimination
claims unless the CBA waiver ‘explicit[ly] incorporat[es] . . . statutory antidiscrimination
requirements.’” (citation omitted)).
       29
            78 F.3d 875 (4th Cir. 1996).
       30
            Id. at 879.
       31
            Id. at 879-80.
       32
            Id. at 885.

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       Setting aside factual distinctions between the two cases, the Fourth
Circuit’s holding in Austin is unpersuasive here. Austin was decided in 1996,
before the Supreme Court issued its opinion in Wright,33 which endorsed the
“clear and unmistakable” standard later applied by the Court in Penn Plaza.34
Since Wright, the Fourth Circuit has moved away from Austin and held that
when the union and employer use “broad but nonspecific language” in an
arbitration clause, the collective bargaining agreement will only bind employees
to arbitrate statutory claims if the parties “include an ‘explicit incorporation of
statutory antidiscrimination requirements’ elsewhere in the contract.”35 This is
a strict standard and one which the CBA in this case would not satisfy – “a
simple agreement not to engage in acts violative of [a particular federal] statute
(which, it bears noting, would be significantly more explicit than [a] vague
reference to acts prohibited by ‘law’ . . . ) will not suffice.”36 In the Fourth Circuit
and elsewhere, courts 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.37 The CBA in this case does neither.

       33
            Wright v. Universal Maritime Servs. Corp., 525 U.S. 70 (1998).
       34
            See id. at 82 & n.2; Penn Plaza, 556 U.S. at 274.
       35
         Carson v. Giant Food, Inc. 175 F.3d 325, 331-32 (4th Cir. 1999) (quoting Wright, 525
U.S. at 80).
       36
            Brown v. ABF Freight Systems, Inc., 183 F.3d 319, 322 (4th Cir. 1999).
       37
         See Carson, 175 F.3d at 331-32; Quint v. A.E. Staley Mfg. Co., 172 F.3d 1, 9 (1st Cir.
1999); Bratten v. SSI Servs., Inc., 185 F.3d 625, 631 (6th Cir. 1999) (“[P]ost-Wright courts
appear to be in agreement that a statute must specifically be mentioned in a CBA for it to even
approach Wright’s ‘clear and unmistakable’ standard.”). Compare Mathews v. Denver
Newspaper Agency LLP, 2011 U.S. App. LEXIS 11454, at *15-*17 (10th Cir. Mar. 16, 2011),
with Safrit v. Cone Mills Corp., 248 F.3d 306, 307-08 (4th Cir. 2001) (finding that Section XX
of a collective bargaining agreement provided a clear an unmistakable waiver of the

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                                        No. 11-50714
                                              IV.
       Because the CBA does not clearly and unmistakably waive a union
member’s right to bring a Title VII claim in a federal judicial forum, the district
court erred when it concluded that the CBA required Ibarra to submit her Title
VII claim to the Article 51 grievance process. We VACATE the district court’s
grant of summary judgment for UPS and REMAND the case for further
proceedings consistent with this opinion.




employee’s right to pursue her Title VII claim in a judicial form because the section stated that
the parties “would ‘abide by all the requirements of Title VII’ and that ‘unresolved grievances
arising under this Section are the proper subjects for arbitration’”).

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