                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                                                                 F I L E D
                           UNITED STATES COURT OF APPEALS
                                    FIFTH CIRCUIT                                  June 7, 2007

                                                                             Charles R. Fulbruge III
                                                                                     Clerk
                                       _________________

                                           No. 06-20824

                                       (Summary Calendar)
                                       _________________


       FRED M PLEASANT,


                                       Plaintiff-Appellant,

       versus


       HOUSTON WORKS USA,


                                       Defendant-Appellee.




                           Appeal from the United States District Court
                               For the Southern District of Texas
                                         4:06-CV-1562



Before KING, HIGGINBOTHAM, , and GARZA, Circuit Judges.

PER CURIAM:*

       Fred Pleasant (“Pleasant”) filed this suit against his former employer, Houston Works,

USA (“Houston Works”), alleging that Houston Works terminated his employment because


       *
        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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
of his race, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”) and 42

U.S.C. § 1981 (“§ 1981”). Pleasant appeals an order of the district court granting Houston

Works’s motion to compel arbitration and dismissing Pleasant’s complaint. We affirm.

        Houston Works is a non-profit workforce development organization that assists

underprivileged individuals with job placement, continuing education, and vocational training.

Houston Works maintains a mandatory Employment Dispute Resolution Program (the “EDR

Program”) that applies to all of its employees. The EDR Program “incorporates two steps:

(1) Open Door, and (2) Arbitration.” The Open Door step is an informal means of dispute

resolution that encourages the employee to raise any work-related matter, either verbally or

in writing, first with his direct supervisor. If after discussing the problem with his supervisor

the employee still feels that further review is necessary, he is authorized to take his dispute

to the next highest manager or supervisor in his chain of command and, thereafter, to the

Houston Works Human Resource Manager. The EDR Program specifically states that

“Houston Works will not retaliate against any employee for using the Open Door.”

        If Houston Works and the employee are unable to resolve a dispute through the Open

Door process, the EDR Program provides for mandatory arbitration. The arbitration clause

in the EDR Program states as follows:

        Any and all claims, disputes, or controversies arising out of or relating to your
        employment . . . and/or the cessation of your employment must be resoled
        exclusively by final and binding arbitration administered by the American
        Arbitration Association (“AAA”) under its National Rules for Resolution of
        Employment Disputes. All employment related claims against Houston
        Works and its supervisors, managers, employees, agents, representatives,
        officers, and directors . . . must be submitted to arbitration for final and
        binding resolution, including, but not limited to claims for: . . . discrimination
        or harassment on the basis of race, sex, age, national origin, religion,


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       disability, or any other unlawful basis; breach of contract; unlawful retaliation;
       [and] wrongful discharge . . . . Binding arbitration shall be the sole and
       exclusive remedy for the resolution of all such claims.

The EDR Program further explains that if the employee “file[s] a lawsuit arising out of or

related to your employment or cessation of [his] employment, Houston Works will use the

EDR Program in support of its request to a court to dismiss the lawsuit and require [the

employee] instead to participate in arbitration of the dispute.”

       On April 25, 2005, the manager of Houston Works’s Reliant Park location, Dale

Hawn (“Hawn”), hired Pleasant to work as an Employment Counselor. As a condition of his

employment with Houston Works, Pleasant was required to agree to be bound by the EDR

Program. Pleasant received a copy of the EDR Program, which he signed immediately below

the following text:

       Your agreement to the application of the EDR Program to employment
       disputes is a condition of your accepting employment and/or continuing
       employment with Houston Works. . . . Under the EDR Program, both
       Houston Works and you surrender rights to engage in civil litigation and to
       have a trial by a judge and/or jury of any dispute.

       I have read and understand the contents of the EDR Policy.

       On August 15, 2005, Pleasant reported that two men attempted to rob him in the

Houston Works parking lot. As a result of Pleasant’s report, Hawn held an employee meeting

two days later, during which he attempted to review safety issues. According to Hawn,

Pleasant interrupted him and, in an inappropriate and disruptive manner, argued that measures

suggested by Hawn were inadequate. According to Pleasant, when he spoke up at the

meeting to make specific suggestions about improving workplace security, Hawn replied that

he “would gladly accept [Pleasant’s] resignation right then” if Pleasant did not like Hawn’s


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suggestions. Following the meeting, Pleasant lodged with Houston Works’s Employee

Relations Manager, Art Torres (“Torres”), both verbal and written complaints detailing his

safety concerns and asserting that Hawn had refused to provide him with an “Open Door” to

air his concerns. Later that afternoon, Hawn terminated Pleasant’s employment. According

to Hawn, the decision to discharge Pleasant was “based on his poor work performance and

his inappropriate, argumentative, and disruptive conduct both in connection with [an August

9, 2005 customer complaint] and in the August 17, 2005 morning meeting.”

          Pleasant subsequently filed the present lawsuit, in which he alleges that Houston

Works discharged him because of his race in violation of Title VII and § 1983. Houston

works promptly filed a Motion to Dismiss and Compel Arbitration under the Federal

Arbitration Act (“FAA”), arguing that Pleasant’s claims were subject to the binding

arbitration clause contained in the EDR Program. In response, Pleasant asserted that because

Houston Works failed to provide him with an “Open Door” to air his grievances, as the EDR

Program required, he was excused from performing his obligation to arbitrate. The district

court disagreed, dismissed Pleasant’s complaint, and ordered the case to arbitration. After

the district court denied his motion for reconsideration, Pleasant timely filed a notice of

appeal.

          We review a district court’s grant of a motion to compel arbitration de novo. Hadnot

v. Bay, Ltd., 344 F.3d 474, 476 (5th Cir. 2003) (citing Webb v. Investacorp, 89 F.3d 252, 257

(5th Cir. 1996)). “In adjudicating a motion to compel arbitration under the [FAA], courts

generally conduct a two-step inquiry.” Webb, 89 F.3d at 257-58. First, the court must

determine “whether the parties agreed to arbitrate the dispute in question.” Id. at 258


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(citations omitted). “This determination involves 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. If the court finds that the parties agreed

to arbitrate the dispute, the court must then consider “whether legal constraints external to

the parties’ agreement foreclosed the arbitration of those claims.” Id. (internal quotation

marks and citations omitted).1

       Pleasant does not dispute that he agreed with Houston Works to arbitrate all disputes

related to his employment, including the discriminatory discharge claims asserted in this

lawsuit. In fact, Pleasant unequivocally concedes that “there is evidence that he executed a

valid arbitration agreement” with Houston Works. Pleasant nevertheless contends that the

arbitration clause is unenforceable due to Houston Works’s alleged breach of its obligations

under the EDR Program. Specifically, Pleasant argues that “[his] obligation to submit any

dispute to binding arbitration was conditioned on [Houston Works] permitting [him] to use

the ‘Open Door’ step without retaliation.” Because Houston Works’s failure to perform its

obligations under the Open Door provision was a material breach of the EDR Program,

Pleasant argues, he should be excused from his agreement to submit the present dispute to

binding arbitration.   Houston Works responds that whether the arbitration clause is

unenforceable due to a breach of another provision of the EDR Program is for the arbitrator,

not the court, to decide. We agree.


       1
          Pleasant concedes in his brief that this case hinges on first step of the Webb inquiry and,
hence, that the court need not address the second step of the inquiry. Moreover, he does not
challenge the arbitrability of Title VII and § 1981 claims generally. See Rojas v. T.K. Commc’ns,
Inc., 87 F.3d 745, 747-48 (5th Cir. 1996) (holding that Title VII claims are subject to mandatory
arbitration agreements).

                                             -5-
        “[A]s a matter of substantive federal arbitration law, an arbitration provision is

severable from the remainder of the contract.” Buckeye Check Cashing, Inc. v. Cardegna,

126 S. Ct. 1204, 1209 (2006). Because “[a] federal court can only adjudicate challenges to

‘the making and performance of the agreement to arbitrate,’ not challenges to the

enforceability of the contract as a whole,” Mun. Energy Agency of Miss. v. Big Rivers Elec.

Corp., 804 F.2d 338, 342 (5th Cir. 1986) (quoting Prima Paint Corp. v. Flood & Conklin

Mfg. Co., 87 S. Ct. 1801, 1806 (1967)), challenges to the enforceability of a contract

containing an arbitration clause are determined by the arbitrator, see Cardegna, 126 S. Ct.

at 1210. See also Will-Drill Res., Inc. v. Samson Res., Co., 352 F.3d 211, 218 (5th Cir.

2003) (“[W]here parties have formed an agreement which contains an arbitration clause, any

attempt to dissolve that agreement by having the entire agreement declared voidable or void

is for the arbitrator. Only if the arbitration clause is attacked on an independent basis can the

court decide the dispute; otherwise, general attacks on the agreement are for the arbitrator.”)

(footnotes omitted); accord John B. Goodman Ltd. P’ship v. THF Constr., Inc., 321 F.3d

1094, 1098 (11th Cir. 2003) (per curiam) (“[O]nce the court is satisfied that the parties

actually agreed to arbitrate the dispute, it is for the arbitrator to decide whether the contract

containing the valid agreement to arbitrate is itself enforceable.”).

        In this case, there is no dispute that Houston Works and Pleasant executed a valid

agreement to arbitrate all disputes arising out of or relating to Pleasant’s employment.

Accordingly, it is for the arbitrator, not the district court, to decide whether the EDR

Program in which the arbitration clause is embedded is enforceable. If Pleasant wishes to

pursue the argument that Houston Works’s alleged breach of the Open Door provision


                                              -6-
excuses his compliance with the arbitration clause, he must address the argument to the

arbitrator.

        Because the parties agreed to arbitrate the discriminatory discharge claims asserted

in this lawsuit, the district court properly granted Houston Works’s motion to dismiss and

compel arbitration. See Alford v. Dean Witter Reynolds, Inc., 975 F.2d 1161, 1164 (5th Cir.

1999) (“Because it determined that all of Alford’s claims were subject to arbitration, the

district court acted within its discretion when it dismissed this case with prejudice.”).

        We AFFIRM.




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