     Case: 13-20114       Document: 00512418337         Page: 1     Date Filed: 10/24/2013




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

                                                                            FILED
                                                                         October 24, 2013

                                     No. 13-20114                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



VINCE SCUDIERO; CHRISTEL THORNTON,

                                                  Plaintiffs - Appellees
v.

RADIO ONE OF TEXAS II, L.L.C.,
a subsidiary of Radio One, Incorporated,

                                                  Defendant - Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:12-CV-1088


Before DAVIS, BENAVIDES, and PRADO, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Radio One of Texas II, L.L.C. (“Radio One”) appeals
the district court’s denial of its motion to compel arbitration of racial
discrimination and retaliation claims brought by two of its former employees,
Plaintiffs-Appellees Vince Scudiero and Christel Thornton (“Plaintiffs” or
“Scudiero” and “Thornton”). We AFFIRM.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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      The Plaintiffs filed suit against Radio One in federal district court.
Scudiero alleged that Radio One discriminated against him because of his race
and retaliated against him because of his complaint. Thornton alleged only a
retaliation claim. Radio One filed a motion to dismiss and to compel arbitration.
The magistrate judge issued a recommendation that the district court deny the
motion. Radio One objected to the report, and the district court overruled the
objections and denied the motion. Radio One now appeals.
      Radio One contends that the district court erred in denying its motion to
compel arbitration on the basis that the arbitration agreement was illusory and
thus unenforceable. We review de novo a district court’s ruling on a motion to
compel arbitration. Fleetwood Enterprises, Inc. v. Gaskamp, 280 F.3d 1069, 1073
(5th Cir. 2002). When ruling on a motion to compel arbitration, it must be
determined whether the parties had an agreement to arbitrate. Id. “This
determination depends on two considerations: (1) whether there is a valid
agreement to arbitrate between the parties; and (2) whether the dispute in
question falls within the scope of that arbitration agreement.” Id. When
deciding whether a dispute is within the scope of the arbitration agreement, this
Court resolves ambiguities in favor of arbitration. Id. “However, this federal
policy favoring arbitration does not apply to the determination of whether there
is a valid agreement to arbitrate between the parties; instead [o]rdinary contract
principles determine who is bound.” Id. (citation and internal quotation marks
omitted). It is undisputed that Texas law governs this determination.
      Specifically, Radio One contends that the district court erred in holding
that the two arbitration provisions in the employee handbook were illusory and
thus unenforceable based on a provision in the handbook that expressly provided
that Radio One reserved the right to unilaterally “supersede, modify, or
eliminate existing policies.” Section 10 of the employee handbook is entitled:

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“EMPLOYEE        ACKNOWLEDGMENT              FORM      AND     AGREEMENT         TO
ARBITRATE.”        In pertinent part, it provides that: (1) the employee
acknowledges receipt of the employee handbook; (2) “the information, policies,
and benefits described here are necessarily subject to change”; (3) revised
information may supersede, modify, or eliminate existing policies”; (4) the
employment is “at-will”; and (5) “[a]ny controversy or claim recognized by law
arising out of or relating to this Employee Handbook procedures delineated in
it, or the employment relationship, shall be settled by arbitration in accordance
with the Commercial Arbitration Rules of the American Arbitration Association.”
In addition, section 113 of the employee handbook is entitled: EMPLOYEE
COMPLAINT PROCEDURE.” Section 113 includes an arbitration provision
that is essentially identical to the arbitration provision set forth above in section
10 of the handbook. Both Plaintiffs signed off on both sections 10 and 113 of the
handbook.
      The Texas Supreme Court has held that an “arbitration clause is not
illusory unless one party can avoid its promise to arbitrate by amending the
provision or terminating it altogether.” In re 24R, Inc. 324 S.W.3d 564, 567 (Tex.
2010). In that case, there was an employee manual that provided that the
employer reserved the “right to revoke, change or supplement guidelines at any
time without notice.” Id. The manual also provided that “there are a number
of [employer] policies an applicant needs to understand and agree to before being
employed, such as the Arbitration Policy.” Id. The arbitration agreement was
in an entirely separate document and did not incorporate the employee manual.
Id. at 568. The Court rejected the claim that the arbitration agreement was
illusory, stating that the employee manual “does not impose any contractual
obligations between” the employer and the employee. Id. Further, the Court
explained that “[a]lthough language in the employee manual recognizes the
existence of the arbitration agreement, this does not diminish the validity of the

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arbitration agreement as a stand-alone contract.” Id. The Court also contrasted
that case with one in which the arbitration agreement “required arbitration ‘as
provided in the Handbook,’” and that handbook contained a provision allowing
the employer to unilaterally revise it. Id. (quoting C & H News, Co., 133 S.W.3d
642, 646 (Tex. App. Corpus Christi-Edinburg 2003, orig. proceeding)). Because
the arbitration provision in the other case incorporated the handbook by
reference, the employer could unilaterally revise it, and thus the agreement was
held to be illusory and unenforceable. Id. at 567-68. Applying the above
analysis to the instant case, because the arbitration provision is in the handbook
that contains the language allowing the employer to unilaterally revise the
handbook, the agreement to arbitrate is illusory and unenforceable. In other
words, because the arbitration agreement is not a “stand-alone contract,” the
provision allowing the employer’s unilateral modification of the handbook
includes allowing unilateral modification of the arbitration agreement.” Id. at
568.
        Although Radio One cited the Texas Supreme Court’s holding in In re 24R,
324 S.W.3d 564, before the district court, it does not cite it in its appellate brief.
Instead, it relies upon an intermediate Texas appellate court’s holding. In D.R.
Horton, Inc., v. Brooks, the court held an arbitration agreement was enforceable
and not illusory even though it was set forth in the employee handbook as a
“policy” and that handbook contained a provision that allowed the employer to
“supersede, modify, or eliminate existing policies.” 207 S.W.3d 862, 868 (Tex.
App. — Houston [14th Dist.] 2006, no pet.). Radio One is correct that D.R.
Horton provides support for its argument that its arbitration policy is
enforceable. However, we cannot reconcile the holding in D.R. Horton with the
Texas Supreme Court’s subsequent analysis in In re 24R applying C & H News.1

        1
           In Carey v. 24 Hour Fitness, 669 F.3d 202, 208 n.2 (5th Cir. 2012), the employer
relied on D.R. Horton to support the proposition that giving notice regarding a revision to the

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       Moreover, another Texas intermediate appellate court has interpreted the
Texas Supreme Court’s analysis in line with the district court’s holding in the
instant case. In Weekley Homes, L.P., v. RAO, 336 S.W.3d 413, 420 (Tex. App.
—Dallas 2011, pet. denied), the employee argued that the arbitration provision
contained in the handbook was not binding because the handbook stated that
“policies are not to be interpreted as a promise by the Company that any
particular situation will be handled in the express manner set forth in the text.”
The court cited In re 24R, Inc., 324 S.W.3d at 567–68, for the proposition that an
“employer’s right to unilaterally change personnel policies as stated in an
employee manual did not extend to an arbitration agreement that was a
separate, stand alone contract.” Weekley Homes, L.P., 336 S.W.3d at 420.2 In
contrast, the court noted that the dispute resolution policy before it was
repeatedly referenced as a policy in the handbook and the “broad modification
language makes no distinction between company policies.” Id. at 421. Because
the “plain language of the modification provision gives [the employer] the
unilateral power, at any time, to elect not to enforce any policy or provision” in
the handbook, the court concluded that the promise to arbitrate was illusory and
not an enforceable agreement to arbitrate. Id.




arbitration agreement prevents it from being illusory. We first distinguished D.R. Horton,
noting that the court in D.R. Horton found that the “arbitration agreement was not subject to
the change-in-terms provision.” Id. However, we did not address the merits of the court’s
analysis with respect to whether the change-in-terms provision applied to the arbitration
agreement. We further noted that the language in D.R. Horton stating that a promise to
arbitrate is not illusory if any changes to the agreement are required to be communicated
through official notices was dicta and expressly declined to follow it. Id. (citing D.R. Horton,
207 S.W.3d at 869).
       2
          The court also cited another Texas Supreme Court opinion for the proposition that
an “employee handbook that could be modified at any time, did not render an entirely separate
arbitration agreement unenforceable.” Weekley Homes, L.P., 336 S.W.3d at 420 (citing In re
Polymerica, LLC, 296 S.W.3d 74, 75–76 (Tex. 2009)).

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      We hold that the district court did not err in denying the motion to compel
because the arbitration provision is not a separate, stand-alone contract.
Instead, it is contained in the handbook in which Radio One reserved the right
to unilaterally supersede, modify or eliminate existing policies. Under these
circumstances, Radio One’s promise to arbitrate was illusory and unenforceable.
      The district court’s judgment is AFFIRMED.




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