UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 97-20148
Summary Calendar
_____________________
FRANCIS F. EMAN-HENSHAW,
Plaintiff-Appellee,
versus
PARK PLAZA HOSPITAL,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(H-95-CV-1320)
_________________________________________________________________
October 20, 1997
Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Park Plaza Hospital appeals the denial of its motion to compel
arbitration of Francis F. Eman-Henshaw’s Title VII claims. We
REVERSE and REMAND.
I.
In 1993, Eman-Henshaw, who was employed at Park Plaza, signed
an agreement to arbitrate “any and all events that arise out of
employment ....” This agreement is contained in the acknowledgment
*
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that this opinion should not be published and is not precedent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.
form for the January 1993 version of Park Plaza’s employee
handbook.
In April 1995, Eman-Henshaw filed this action against Park
Plaza, claiming that, in violation of Title VII, he was denied a
promotion in August 1993 because of sex and national origin
discrimination. (All three applicants were black, Park Plaza
employees; one was a woman; and Eman-Henshaw was the only Nigerian.
The woman received the promotion.) Park Plaza moved to compel
arbitration pursuant to § 4 of the Federal Arbitration Act (FAA),
9 U.S.C. § 4. The district court denied the motion without a
hearing and without otherwise stating any reasons for the denial.
II.
Park Plaza appeals pursuant to 9 U.S.C. § 16(a)(1)(B), which
permits an appeal from an order “denying a petition under [§] 4 ...
to order arbitration to proceed”. It contends that the court erred
by summarily denying its motion to compel arbitration. Eman-
Henshaw responds that the denial should be affirmed because (1) the
FAA does not apply to the arbitration agreement; (2) it is
unenforceable for failure of consideration; and (3) Park Plaza
waived, or is estopped from asserting, its right to arbitration.
We review the denial de novo. Snap-On Tools Corp. v. Mason, 18
F.3d 1261, 1264 (5th Cir. 1994).
A.
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Section 4 of the FAA provides that, when a party petitions the
court to compel arbitration under a written arbitration agreement,
“[t]he court shall hear the parties, and upon being satisfied that
the making of the agreement for arbitration or the failure to
comply therewith is not in issue, the court shall make an order
directing the parties to proceed to arbitration in accordance with
the terms of the agreement.” 9 U.S.C. § 4. The FAA “leaves no
place for the exercise of discretion by a district court” to deny
a party’s motion to compel arbitration when the parties have agreed
to arbitrate their disputes and the disputed issue is within the
reach of the arbitration clause. Dean Witter Reynolds, Inc. v.
Byrd, 470 U.S. 213, 218 (1985). Title VII claims are subject to
arbitration. Rojas v. TK Communications, Inc., 87 F.3d 745, 747-48
(5th Cir. 1996); Alford v. Dean Witter Reynolds, Inc., 939 F.2d
229, 230 (5th Cir. 1991).
Eman-Henshaw contends that the district court had discretion
to deny the motion because § 4 applies only when the party seeking
arbitration files an original judicial proceeding to compel
arbitration, not where, as here, the party files a motion in a
pending action. But, he cites no authority for that
interpretation, and makes no attempt to distinguish cases in which
§ 4 has been invoked through a motion filed by the defendant in a
pending action rather than by an original judicial proceeding.
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See, e.g., Byrd, 470 U.S. at 214-15; Folse v. Richard Wolf Med.
Instruments Corp., 56 F.3d 603, 604-05 (5th Cir. 1995).
B.
The FAA applies to contracts “evidencing a transaction
involving commerce”. 9 U.S.C. § 2. The Supreme Court has held
that this phrase “signals an intent to exercise Congress’s commerce
power to the full.” Allied-Bruce Terminix Cos., Inc. v. Dobson,
513 U.S. 265, 277 (1995). “Commerce” under the FAA is defined
broadly, Atlantic Aviation, Inc. v. EBM Group, Inc., 11 F.3d 1276,
1280 (5th Cir. 1994), and includes all contracts “relating to
interstate commerce”. Mesa Operating Ltd. Partnership v. Louisiana
Intrastate Gas Corp., 797 F.2d 238, 243 (5th Cir. 1986) (internal
quotation marks and citation omitted).
Eman-Henshaw maintains that the FAA is inapplicable because
the record contains no evidence of interstate commerce involvement.
To the contrary, it contains evidence that Park Plaza engages in
interstate business activities such as receiving goods and services
from out-of-state vendors, treating out-of-state patients, and
receiving payment from out-of-state insurance carriers for services
rendered. Eman-Henshaw’s employment as a food service worker at
the hospital facilitates its interstate commerce activities.
Accordingly, the FAA applies.
C.
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Next, Eman-Henshaw asserts that the arbitration agreement is
not binding because the acknowledgment form containing that
agreement provides that no written agreement concerning employment
terms or conditions is valid unless signed by a facility executive
director and senior officer of American Medical International
Hospitals of Texas, Ltd. (AMI), which owned Park Plaza at that
time; and the form contains no such signatures. We disagree. The
acknowledgment was signed by Eman-Henshaw; the fact that it was not
signed by AMI or Park Plaza officials does not preclude Park Plaza
from enforcing it. See Patterson v. Tenet Healthcare, Inc., 113
F.3d 832, 834-35 (8th Cir. 1997) (enforcing arbitration agreement
identical to the one at issue in this case).
D.
Eman-Henshaw maintains that Park Plaza waived its right to
enforce the arbitration agreement, or is estopped to assert that
right, because it refused to arbitrate his grievance. “Waiver will
be found when the party seeking arbitration substantially invokes
the judicial process to the detriment or prejudice of the other
party.” Walker v. J. C. Bradford & Co., 938 F.2d 575, 577 (5th
Cir. 1991) (internal quotation marks and citation omitted). But,
“[w]aiver of arbitration is not a favored finding, and there is a
presumption against it.” Williams v. Cigna Financial Advisors,
Inc., 56 F.3d 656, 661 (5th Cir. 1995) (brackets, internal
quotation marks, and citation omitted). “A party asserting waiver
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... bears a heavy burden of proof in its quest to show that an
opponent has waived a contractual right to arbitrate.” Walker, 938
F.2d at 577.
The employee handbook provides that employees who are
dissatisfied with the internal resolution of their grievances may
use arbitration as the final step in the complaint process and may
“request Alternative Dispute Resolution in writing”. Because Eman-
Henshaw does not claim that he ever requested arbitration of his
grievance, Park Plaza could not have refused to arbitrate it.
Accordingly, Eman-Henshaw has not met his “heavy burden” of showing
that Park Plaza waived its right to arbitration.
E.
Finally, Eman-Henshaw maintains that the agreement to
arbitrate is not enforceable because the consideration for his
promises failed when Park Plaza declined to arbitrate his
grievance. Again, we disagree. In exchange for agreeing to submit
all employment-related disputes to arbitration, Eman-Henshaw
received consideration in the form of continued salary and
employment.
III.
For the foregoing reasons, the order denying the motion to
compel arbitration is REVERSED, and the case is REMANDED for
further proceedings consistent with this opinion. Park Plaza’s
motion to supplement the record is DENIED.
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REVERSED and REMANDED; MOTION DENIED
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