                                                     United States Court of Appeals
                                                              Fifth Circuit
                                                             F I L E D
                     In the                                  April 18, 2006
United States Court of Appeals                         Charles R. Fulbruge III
           for the Fifth Circuit                               Clerk
               _______________

                 m 05-10510
               Summary Calendar
               _______________




HANSON BUILDING MATERIALS AMERICA, INC.,
                 AND
     HANSON AUSTRALIA PTY LIMITED,

                                    Plaintiffs-Appellants,

                    VERSUS

              JOEL PENNINGTON,

                                    Defendant-Appellee.



         _________________________

   Appeal from the United States District Court
       for the Northern District of Texas
              m 3:04-CV-1247-N
     ______________________________
Before SMITH, GARZA, and PRADO,                            tion Agreement’s arbitration provision. The
  Circuit Judges.                                          district court issued an order dismissing and
                                                           compelling arbitration of both claims. The
PER CURIAM:*                                               court determined that Pennington’s counter-
                                                           claim for breach of the Separation Agreement
    Hanson Building Materials, Inc., and Han-              was plainly governed by the Separation Agree-
son Australia PTY Limited (collectively “Han-              ment and therefore subject to arbitration. The
son”) appeal an order compelling arbitration of            court further held that Hanson’s claim under
a lawsuit against Joel Pennington. We affirm.              the tax equalization policy was subject to the
                                                           arbitration provisions of the Separation
                        I.                                 Agreement because the Separation Agreement
   Pennington is a former employee of Han-                 superseded the tax equalization policy. The
son’s. From 1999 to 2001 Pennington was                    court relied on the following language from
stationed in Australia, during which time Han-             paragraph 14 of the Separation Agreement:
son paid Pennington’s foreign income taxes
under a “tax equalization policy.” On termi-                  Employee (Pennington) fully under
nation of his employment with Hanson, Pen-                    stands and acknowledges that this Agree-
nington and Hanson entered into a Confi-                      ment . . . constitutes the full resolution
dential Separation Agreement and Full Settle-                 and satisfaction of all duties and obliga-
ment of Claims (“Separation Agreement”),                      tions owed by the Company (Hanson)
which contained a mandatory arbitration                       and supersedes any other agreement,
clause.1                                                      whether express or implied, regarding the
                                                              terms and conditions of his employment.
   Hanson later sued Pennington under the tax
equalization policy for the return of foreign tax             The parties agree that Pennington’s coun-
refunds that were paid to Pennington. Pen-                 terclaim for breach of the Separation Agree-
nington counterclaimed for breach of the                   ment is subject to arbitration. Hanson con-
Separation Agreement.                                      tends, however, that its claim for the return of
                                                           foreign tax refunds under the tax equalization
   Each party moved for compelled arbitration              policy is not covered by the Separation Agree-
of the claim against it pursuant to the Separa-            ment and therefore is not subject to arbitration.
                                                           Hanson argues that the Separation Agreement
                                                           did not supersede the tax equalization policy.
   *
    Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published                                 II.
and is not precedent except under the limited cir-            We review de novo the district court’s
cumstances set forth in 5TH CIR. R. 47.5.4.                grant of a motion to dismiss and to compel
                                                           arbitration. Pennzoil Exploration & Prod. Co.
   1
      Paragraph 13 of the Separation Agreement             v. Ramco Energy Ltd., 139 F.3d 1061, 1065
states as follows: “In the event of any dispute un-        (5th Cir.1998). “A party cannot be required to
der the provision [sic] of this Agreement other than
                                                           submit to arbitration any dispute which he has
a dispute in which the primary relief sought is an
                                                           not agreed so to submit.” United Steelworkers
equitable remedy such as an injunction, the Parties
shall be required to have the dispute, controversy,
                                                           of Am. v. Warrior & Gulf Nav. Co., 363 U.S.
or claim settled by arbitration . . . .”                   574, 582 (1960). In determining whether the

                                                       2
parties have agreed to arbitrate, we ask
(1) whether a valid agreement to arbitrate be-
tween the parties exists and (2) whether the
dispute in question falls within the scope of
that arbitration agreement. PaineWebber Inc.
v. Chase Manhattan Private Bank (Switzer-
land), 260 F.3d 453, 462 (5th Cir. 2001). “In
doing so, we must bear in mind the strong fed-
eral policy favoring arbitration and resolve any
ambiguity as to the availability of arbitration in
favor of arbitration.” Id.

   The parties agree that the Separation
Agreement contains a valid arbitration clause
covering all disputes under the Separation
Agreement. We must determine, therefore,
whether Hanson’s claim under the tax equal-
ization policy falls under the Separation
Agreement.

    The plain language of paragraph 14 of the
Separation Agreement contains two distinct
agreements. First, the parties agreed that the
Separation Agreement “constitutes the full res-
olution and satisfaction of all duties and ob-
ligations owed by the Company.” Second,
they agreed that the Separation Agreement
“supersedes any other agreement, whether ex-
press or implied, regarding the terms and con-
ditions of his (Pennington’s) employment.”
This second agreement is not somehow sub-
sumed by the first, as argued by Hanson.

   The tax equalization policy is certainly an
“agreement . . . regarding the terms and condi-
tions of [Pennington’s] employment.” There-
fore, it was superseded by the Separation
Agreement. Any dispute now arising under
the tax equalization policy is therefore gov-
erned by the Separation Agreement and sub-
ject to arbitration.

   AFFIRMED.


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