PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CAROL A. BROWN,
Plaintiff-Appellant,

v.
                                                                         No. 96-1912
TRANS WORLD AIRLINES; DONALD
OLDT; TRUDY ROUSCH-HEYWOOD,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CA-96-308)

Argued: July 8, 1997

Decided: October 6, 1997

Before NIEMEYER, MICHAEL, and MOTZ,
Circuit Judges.

_________________________________________________________________

Affirmed in part, reversed in part, and remanded by published opin-
ion. Judge Niemeyer wrote the opinion, in which Judge Michael and
Judge Motz joined.

_________________________________________________________________

COUNSEL

ARGUED: Sandra Martin Rohrstaff, COHEN, DUNN & CURCIO,
P.C., Alexandria, Virginia, for Appellant. Elliot H. Shaller, Washing-
ton, D.C., for Appellees.

_________________________________________________________________
OPINION

NIEMEYER, Circuit Judge:

We are presented with the question of whether a collective bargain-
ing agreement, which is governed by the Railway Labor Act and
which requires arbitration of "disputes between the Union, employee,
and the Company growing out of the interpretation or application of
any of the terms of this Agreement," mandates arbitration of an
employee's claim for sexual harassment and retaliation under Title
VII of the Civil Rights Act of 1964 and for violation of the Family
and Medical Leave Act. Relying on our decision in Austin v. Owens-
Brockway Glass Container, Inc., 78 F.3d 875 (4th Cir.), cert. denied,
117 S. Ct. 432 (1996), the district court concluded that the collective
bargaining agreement mandated arbitration of the employee's claims
and therefore the employee was "precluded from filing suit in this
Court." Because we believe that the district court misapplied Austin
and erroneously interpreted the collective bargaining agreement to
compel the arbitration of statutory claims, we reverse and remand the
Title VII claim for further proceedings. For other reasons, however,
we affirm the district court's dismissal of the claim under the Family
and Medical Leave Act.

I

Carol Brown, a customer service agent in the Trans World Airlines
baggage office at Washington National Airport, filed suit against
Trans World Airlines ("TWA") and two of its supervisory employees,
alleging that she had been sexually harassed and retaliated against for
reporting the harassment, in violation of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seq., and of the Family and Medi-
cal Leave Act, 29 U.S.C. § 2601 et seq. Brown's complaint also
alleged pendent state law claims for unlawful discrimination and
intentional infliction of emotional distress. In her complaint, Brown
alleged that the defendants harassed her through "unwanted touching,
sexually offensive comments, and unwanted personal phone calls."
Brown also alleged that when she complained about the harassment,
her supervisor retaliated against her by ordering her to return to work
or resign. When she did not return to work after several requests to
do so, TWA terminated her employment.

                    2
During her employment, Brown was a member of the International
Association of Machinists and Aerospace Workers (the "Union"),
which had entered into a collective bargaining agreement with TWA.
The collective bargaining agreement, which was governed by the
Railway Labor Act, 45 U.S.C. § 151 et seq., provides in its preamble:

          No employee covered by this Agreement will be interfered
          with, restrained, coerced, or discriminated against by the
          Company, its officers, or agents, because of membership in
          or lawful activity on behalf of the Union, nor shall either the
          Company, its officers, or agents, or the Union, its officers,
          or agents, discriminate against any employee or member on
          account of race, color, creed, religion, sex (sexual
          harassment), age, handicap, national origin, or veteran sta-
          tus including veteran, Vietnam era veteran or special dis-
          abled veteran status. This paragraph reaffirms the long
          standing mutual practice of both of the parties to this Agree-
          ment.

(Emphasis added). The agreement also provides for a contractual dis-
pute resolution procedure. Article 11 establishes a multi-step proce-
dure for grievances, stating that "the procedure for presentation and
adjustment of grievances that may arise between the Company and
the Union with reference to interpretation or application of any provi-
sions of this agreement shall be as set forth below." Article 12 pro-
vides that, following exhaustion of the grievance procedure steps, the
parties are entitled to appeal to a board of arbitrators, "the System
Board of Adjustment," which was created "for the purpose of adjust-
ing and deciding disputes or grievances which may arise under the
terms of this Agreement." It further gives the System Board of
Adjustment jurisdiction "over disputes between the Union, employee,
and the Company growing out of the interpretation or application of
any of the terms of this Agreement," and it declares the decisions of
the System Board of Adjustment to be "final and binding."

Arguing that the collective bargaining agreement required Brown
to submit her claim to the grievance procedure and the System Board
of Adjustment, TWA filed a motion for summary judgment. It main-
tained that the district court lacked subject matter jurisdiction or,
alternatively, that Brown's complaint failed to state a state-law claim

                    3
upon which relief could be granted. In addition, with respect to
Brown's Family and Medical Leave Act claim, TWA contended that
the undisputed facts demonstrated that she had exceeded the maxi-
mum leave time provided by the Act.

The district court agreed with TWA and granted its motion for
summary judgment, requiring that the case be resolved pursuant to the
dispute resolution mechanisms of the collective bargaining agree-
ment. The court also dismissed the individual defendants on the fed-
eral claims and declined to exercise supplemental jurisdiction over the
state claims. In granting TWA's motion, the district court stated:

          Having reviewed the briefs submitted by counsel, the Court
          finds that the Fourth Circuit's opinion in Austin v. Owens-
          Brockway Glass Container, 78 F.3d 875 (4th Cir. 1996)
          controls this case and requires dismissal of the counts
          brought under Title VII and the FMLA. The issues underly-
          ing these counts are directly addressed by the Collective
          Bargaining Agreement ("CBA") which governs the terms
          and conditions of plaintiff's employment with defendant
          Trans World Airlines. The CBA requires arbitration of dis-
          putes which arise from the agreement, and, therefore, the
          plaintiff is precluded from filing suit in this Court.

This appeal followed.

II

Brown argues that the district court erred in relying on our decision
in Austin because Austin was decided under the National Labor Rela-
tions Act, and not the Railway Labor Act. Because the collective bar-
gaining agreement in this case was negotiated under the Railway
Labor Act, she contends that the provisions of that Act and the
Supreme Court's decision in Hawaiian Airlines, Inc. v. Norris, 512
U.S. 246 (1994), require that statutory claims not be submitted to
arbitration for resolution.

TWA argues, on the other hand, that Hawaiian Airlines decided
only when a claim is preempted by the Railway Labor Act and not

                    4
when a statutory claim may be submitted to arbitration. It contends
that the enforcement of arbitration agreements is controlled by the
Supreme Court's decision in Gilmer v. Interstate/Johnson Lane
Corp., 500 U.S. 20 (1991), where the Court held that statutory claims
may be the subject of an enforceable arbitration agreement. Id. at 26.
TWA maintains that our decision in Austin is a proper extension of
Gilmer and controls the disposition of this case.

The Railway Labor Act, which covers the airline industry and, in
particular, the collective bargaining agreement in this case, prescribes
a mandatory arbitral mechanism for the settlement of disputes "grow-
ing out of grievances or out of the interpretation or application of
agreements concerning rates of pay, rules, or working conditions." 45
U.S.C. § 153 First (i). In Hawaiian Airlines, the Supreme Court
defined the scope of that arbitral mechanism, holding that the Railway
Labor Act's mandatory arbitration pertains only to "disputes involv-
ing the application or interpretation of a [collective bargaining agree-
ment]." 512 U.S. at 255. In concluding that the Railway Labor Act
did not preempt claims "independent of the collective bargaining
agreement," the Court permitted a fired airline employee to pursue
independent state law-based rights not to be fired in violation of pub-
lic policy or in retaliation for whistle-blowing. Thus, Hawaiian
Airlines instructs that the Railway Labor Act's arbitral mechanism
does not mandate the arbitration of state-law claims that exist inde-
pendently of the collective bargaining agreement.

Even if statutory claims exist independently of a collective bargain-
ing agreement, however, those claims may be made the subject of an
enforceable arbitration by agreement. In Gilmer, the Court held that
congressional policy favors arbitration and that the arbitral forum is
adequate for resolving statutory claims. The Court concluded that
agreements to arbitrate statutory claims should be enforced unless the
plaintiff demonstrates that Congress intended to preclude the waiver
of a judicial forum for claims under a particular statute, either
expressly or because of inherent incompatibility between the statute's
goals and the arbitral forum. See Gilmer, 500 U.S. at 35 (holding that
nothing in the ADEA indicates a congressional intent to preclude the
arbitration of ADEA claims); see also Shearson/American Express,
Inc. v. McMahon, 482 U.S. 220, 238, 242 (1987) (holding that agree-
ment to arbitrate statutory claims under Securities Exchange Act and

                    5
RICO should be enforced since nothing in those statutes precludes the
arbitration of claims); Mitsubishi Motors Corp. v. Soler Chrysler-
Plymouth, Inc., 473 U.S. 614, 640 (1985) (holding that Sherman Act
claims are arbitrable).

While all of these cases were decided under the Federal Arbitration
Act, in Austin we applied the same principles to collective bargaining
agreements even though such agreements are exempted from the Fed-
eral Arbitration Act, see 9 U.S.C. § 1; Domino Sugar Corp. v. Sugar
Workers Local Union 392, 10 F.3d 1064, 1067 (4th Cir. 1993). In
Austin, we held that an agreement to submit to arbitration an employ-
ee's claims for discrimination under Title VII and the Americans
With Disabilities Act is enforceable and that nothing in either Title
VII or the Americans With Disabilities Act indicated a congressional
purpose to preclude arbitration of claims under those acts. Accord-
ingly, we affirmed the district court's summary judgment that it
lacked subject matter jurisdiction over such claims. See Austin, 78
F.3d at 886; see also O'Neil v. Hilton Head Hosp., 115 F.3d 272, 275
(4th Cir. 1997) (enforcing agreement to arbitrate claims under the
Family and Medical Leave Act). Thus, we are bound to enforce any
legally negotiated arbitration clause that obligates parties to submit
claims under either Title VII of the Civil Rights Act or the Family and
Medical Leave Act to arbitration.

The question of whether a collective bargaining agreement submits
statutory disputes to arbitration is a matter of contract law, and "a
party cannot be required to submit to arbitration any dispute which he
has not agreed so to submit" because "arbitrators derive their author-
ity to resolve disputes only because the parties have agreed in
advance to submit such grievances to arbitration." AT&T Techs., Inc.
v. Communications Workers, 475 U.S. 643, 648-49 (1986) (quoting
Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582
(1960)); see also Alexander v. Gardner-Denver Co., 415 U.S. 36,
53-54 (1974) (discussing scope of arbitrator's authority and conclud-
ing that "the arbitrator has authority to resolve only questions of con-
tractual rights, and this authority remains regardless of whether
certain contractual rights are similar to, or duplicative of, the substan-
tive rights secured by Title VII"). The determination of the arbitration
provision's scope and meaning is for the court to resolve. See AT&T
Techs., 475 U.S. at 649.

                     6
Accordingly, we turn to the language of the collective bargaining
agreement governing Brown's employment, noting that it does
include a prohibition against discrimination "on account of race,
color, creed, religion, sex (sexual harassment), age, handicap, national
origin, or veteran status." Moreover, it commits to arbitration all
grievances that arise "with reference to interpretation or application
of any provision" of the agreement. But while the agreement provides
for arbitration of "disputes between the Union, employee, and the
Company growing out of the interpretation or application of any of
the terms of this Agreement," the agreement does not purport to sub-
mit any noncontract-based dispute or any statutory dispute to arbitra-
tion. In this regard, the language in the agreement before us is
significantly narrower than the language construed in Gilmer, O'Neil,
and Austin.

In Gilmer, as a condition of his employment, the plaintiff entered
into a stockbroker's registration agreement with the New York Stock
Exchange which stated that the plaintiff agreed to arbitrate "any
dispute, claim, or controversy" arising between himself and his
employer "that is required to be arbitrated under the rules, constitu-
tions, or by-laws" of the New York Stock Exchange. The New York
Stock Exchange in turn required arbitration of "any controversy
between a registered representative and any member or member orga-
nization arising out of the employment or termination of employment
of such registered representative." Gilmer , 500 U.S. at 23 (emphasis
added). The parties in Gilmer did not contest that this language was
broad enough to encompass the arbitration of statutory claims for
wrongful discharge under the ADEA, and the Court thus focused
principally on the question of whether such a clause was enforceable.
Accord O'Neil, 115 F.3d at 273 (enforcing arbitration of a claim
under the Family and Medical Leave Act where provision in
employee handbook signed by plaintiff required employee to submit
to binding arbitration "complaints for any and all events that arise out
of employment or termination of employment").

In Austin, we similarly concluded as a matter of contract interpreta-
tion that the plaintiff's claim under the Americans With Disabilities
Act and Title VII of the Civil Rights Act of 1964 were covered by
mandatory grievance procedures of the contract. The collective bar-
gaining agreement in Austin provided that the parties "comply with all

                    7
laws preventing discrimination." It also provided that the agreement
"shall be administered in accordance with the applicable provisions of
the Americans With Disabilities Act," and specified that "any disputes
under this Article as with all other Articles of this Contract shall be
subject to the grievance procedure." We held that this language "spe-
cifically provides for final and binding arbitration on account of . . .
Title VII for the gender claim, and the Disabilities Act for the disabil-
ity claim." Austin, 78 F.3d at 879-80.

In this case, by contrast, instead of mandating arbitration of all
employment-related disputes or, more specifically, of statutory dis-
putes, the collective bargaining agreement submits to arbitration only
disputes that "grow out of the interpretation or application of any of
the terms of this Agreement." Thus the distinction between the lan-
guage before us and the language in Gilmer, O'Neil, and Austin, dis-
tinguishes those cases. See Martin Marietta Corp. v. Maryland
Comm'n on Human Relations, 38 F.3d 1392, 1402 (4th Cir. 1994)
(distinguishing Gilmer on grounds that arbitration clause in Gilmer
utilized "broad mandatory language" which "provided that Gilmer
must arbitrate `any dispute, claim or controversy' arising with his
employer," while agreement's arbitration clause in case before it was
"more narrow, as it [was] written in permissive terms and encom-
passe[d] only grievances that involve[d] `interpretation or application'
of CBA provisions"). Nothing in our holding precludes the parties
from agreeing to arbitrate all disputes arising out of the employment
relationship by which they would be agreeing to arbitrate not only
contract-based disputes but also disputes based on statutory and com-
mon law. To do so, they would not need to mention in their agree-
ment that a statute was the source of a dispute committed to
arbitration as long as it were made clear that their agreement is suffi-
ciently broad to include the arbitration of such disputes.

While it is true that the collective bargaining agreement in this case
prohibits conduct similar to that prohibited by Title VII and by the
Family and Medical Leave Act, none of the substantive provisions in
the agreement reaches beyond the agreement to cover disputes arising
under these laws. Thus, in interpreting the contract, there is no indica-
tion that the arbitrator would be bound to follow their interpretations.
The defendants nevertheless argue that the anti-discrimination provi-
sions in the collective bargaining agreement in this case incorporate,

                     8
sub silentio, an obligation to adhere to statutory anti-discrimination
provisions.

Although the anti-discrimination language of Brown's collective
bargaining agreement prohibits many of the types of discrimination
covered by existing laws, it cannot be said to be congruent with them.
For example, the contractual provision prohibits discrimination, but it
does not prohibit retaliation because of the enforcement of the anti-
discrimination provision. Yet retaliation is the basis for a separate
cause of action under Title VII and one that Brown seeks to vindicate
in this case.

In addition to the lack of congruence between the actions prohib-
ited by the collective bargaining agreement and those prohibited by
statute, we reject an interpretation that obliterates the distinction
between statutory and contractual claims based on a commonality of
underlying facts. The possibility that the facts underlying Brown's
claims of statutory violation might also give rise to a claim for breach
of the anti-discrimination provision of the collective bargaining agree-
ment is not itself sufficient to subsume Brown's statutory claims into
the contract's arbitration clause or otherwise transform the statutory
claims into an unpleaded breach of contract action. The Supreme
Court has more than once held that factual similarity between claims
does not create identity for purposes of a requirement for arbitration:

          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. 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.

Alexander, 415 U.S. at 49-50. Similarly, in Hawaiian Airlines, the
Court held that the fact that a public law analysis might involve atten-
tion to the same factual considerations as a contractual determination
did not render the two dependent for purposes of determining whether
the public law claim involved interpretation or application of a collec-
tive bargaining agreement. See 512 U.S. at 261-62.

                    9
Thus, although the facts that make out a Title VII claim might well
also make out a breach of contract claim under the contractual anti-
discrimination provision in this case, the statutory right remains fully
independent. The collective bargaining agreement has neither incor-
porated the statutory duties into its substantive provisions by refer-
ence nor made the statutory claim into one involving application of
the contract. Accordingly, we conclude that the parties to this contract
did not in fact agree to submit Brown's statutory claims to the arbitral
forum.

III

In its motion for summary judgment, TWA also presented undis-
puted facts to support its contention that Brown did not have a claim
under the Family and Medical Leave Act. It notes on appeal that
Brown conceded that she had taken leave in excess of that required
to be given by the Act and that the uncontested facts show that Brown
never submitted medical documentation of her illness, as the Act per-
mits employers to require. See 29 U.S.C.§ 2613(b). Because Brown
failed to present evidence creating a genuine dispute of material fact
on her entitlement to relief under the Family and Medical Leave Act,
we affirm the district court's grant of summary judgment as to that
count. Although the district court did not find it necessary to rule on
this ground because it dismissed the case for arbitration, we may nev-
ertheless affirm the grant of summary judgment on any ground sup-
ported by the record. See Bowling v. Wellmore Coal Corp., 114 F.3d
458, 460 (4th Cir. 1997).

For the foregoing reasons, we reverse the summary judgment with
respect to Brown's Title VII claims and affirm with respect to her
Family and Medical Leave Act claims.

AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED FOR FURTHER PROCEEDINGS

                    10
