                                                                              FILED
                           NOT FOR PUBLICATION                                NOV 03 2011

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


FRED POWELL,                                     No. 10-55167

              Plaintiff - Appellee,              D.C. No. 2:09-cv-00729-VBF-
                                                 VBK
  v.

ANHEUSER-BUSCH INCORPORATED,                     MEMORANDUM*
a Missouri Corporation,

              Defendant - Appellant.


                  Appeal from the United States District Court
                       for the Central District of California
                 Valerie Baker Fairbank, District Judge, Presiding

                     Argued and Submitted October 11, 2011
                              Pasadena, California

Before: LEAVY and WARDLAW, Circuit Judges, and MAHAN, District Judge.**


       Anheuser-Busch, Inc. (“ABI”) appeals the district court’s January 8, 2010,

order granting Fred Powell’s motion for reconsideration of the district court’s June


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable James C. Mahan, United States District Judge for the
District of Nevada, sitting by designation.
29, 2009, order compelling arbitration. We have jurisdiction pursuant to 9 U.S.C.

§ 16(a), and we affirm.

      The Collective Bargaining Agreement (“CBA”) between ABI and Powell’s

union, Teamsters Local Union No. 896 (“Union”), does not “clearly and

unmistakably” require Powell to arbitrate claims of statutory discrimination. See

14 Penn Plaza LLC v. Pyett, 129 S. Ct. 1456, 1474 (2009). Although it is unclear

whether the district court relied on the lack of a clear and unmistakable waiver in

granting Powell’s motion for reconsideration, we may affirm on any basis

supported in the record, “even if it differs from the district court’s rationale.” Van

Asdale v. Int'l Game Tech., 577 F.3d 989, 994 (9th Cir. 2009) (internal quotation

marks omitted).

      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.” Wright v. Universal

Mar. Serv. Corp., 525 U.S. 70, 80 (1998). The CBA here did not explicitly

incorporate Powell’s disability discrimination claims under the California Fair

Employment and Housing Act (“FEHA”). See Cal. Gov’t Code §§ 12940 et seq.

Although CBA Section 41“recognizes” ABI’s duty to comply with FEHA, it is

clearly addressed to a situation where ABI’s compliance with FEHA conflicts with


                                           2
any provision of the CBA. Where the only reasonable accommodation available

conflicts with the CBA, and ABI adopts it anyway, the Union may challenge the

accommodation through the grievance procedure. Section 41 speaks not at all to

the right of an individual employee to litigate a FEHA claim against ABI.

      Moreover, the CBA supplies arbitration procedures only as between ABI

and the Union. The CBA provides no mechanism that would allow an individual

to commence the grievance and arbitration process without the Union’s

participation, as is the case here. Nor is any mechanism provided to resolve

disputes between ABI and an individual employee over the selection of an

arbitrator; the arbitrator selection procedures set forth in Section 32.03 apply only

to ABI and the Union. The CBA’s failure to contain any arbitration procedures

governing the arbitration of Powell’s statutory claim against ABI is the very reason

for the “complete breakdown in the arbitration process” found by the district court.

      AFFIRMED.




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