IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Nos. 01-40057 and 01-40462
Summary Calendar
RONALD G. DODDS,
Plaintiff-Appellant,
versus
HALLIBURTON ENERGY SERVICES, INC.
Defendant-Appellee.
LUIS PICOT,
Plaintiff-Counter
Defendant-Appellant,
versus
HALLIBURTON ENERGY SERVICES, INC.
Defendant-Counter
Claimant–Appellee.
Appeals from the United States District Court
For the Southern District of Texas
(V-00-CV-71 & V-00-CV-96)
August 29, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
*
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should not be published and is not precedent except under the limited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.
Ronald Dodds and Luis Picot appeal the district court’s
dismissal and order to compel arbitration of their claims under the
Age Discrimination in Employment Act (ADEA).1 We have jurisdiction
as this is an appeal from a “final decision with respect to an
arbitration.”2 Because Appellants’ claims cannot succeed under
controlling precedents of this Court and Texas law, we affirm.
I
Luis Picot and Ronald Dodds were both employed at the
Victoria, Texas facility of Halliburton Energy Services
(“Halliburton”). Both were terminated shortly before their
pensions would have vested. Picot was 56 years old when he was
terminated; Dodds was 50. The same year that they were terminated,
Halliburton adopted the “Halliburton Dispute Resolution Program”
(DRP) for handling employee grievances and disputes. Halliburton
sent notice and details of the DRP to its employees and indicated
that employees who continued to work at Halliburton after the DRP’s
effective date of January 1, 1998, would have accepted the DRP,
which required all legal claims against Halliburton to be resolved
through its procedures.
Picot and Dodds, after their respective terminations, filed
suit under the ADEA, claiming that they were terminated in order to
avoid the vesting of their pensions with Halliburton. The district
1
29 U.S.C. § 626 et seq.
2
9 U.S.C. § 16(a)(3). See Green Tree Fin. Corp.–Ala. v. Randolph, 531
U.S. 79, 85-87 (2000).
2
court in both cases granted Halliburton’s motion to compel
arbitration and dismissed the claim.
II
We review a district court’s order to compel arbitration de
novo.3
Appellants first argue that the DRP represents a “waiver”
of their age discrimination claims and does not satisfy the Older
Worker’s Benefit Protection Act’s (OWBPA) requirements for such a
waiver. The OWBPA provides that “[a]n individual may not waive
any right or claim under this chapter unless the waiver is
knowing and voluntary.”4 The OWBPA then delineates the “minimum”
requirements of such a waiver including, among other things, that
such a waiver be in writing, that it be between the individual
and the employer, and that it specifically refer to rights or
claims arising under the ADEA.5 Halliburton’s notice with
respect to the DRP does not comply with all of these requirements
of the OWBPA.6
3
Local 1351 Int’l Longshoremen’s Ass’n v. Sea-Land Serv., Inc., 214 F.3d
566, 569 (5th Cir. 2000).
4
29 U.S.C. § 626(f)(1).
5
Id.
6
The notice, for example, did not “advise [employees] in writing to
consult with counsel.” 29 U.S.C. § 626(f)(1)(E). Halliburton remarks that
notice of the DRP complied with some of the OWBPA’s requirements, but the plain
text and the Court’s decision in Oubre v. Entergy Operations, Inc., 522 U.S. 422
(1998), require strict compliance.
3
This Court, in Williams v. CIGNA Financial Advisors, Inc.,7
previously determined that the OWBPA’s requirement of knowing and
voluntary waiver does not apply to arbitration agreements but
instead is directed at severance agreements and releases.8 Thus,
under Williams, the DRP is not subject to the requirements of the
OWBPA and Appellants must pursue their remedies through the DRP.
Appellants argue, however, that Williams has been
effectively overruled by the Supreme Court’s decision in Oubre v.
Entergy Operations, Inc.9 In Oubre, the Court considered an
employee’s severance agreement releasing all claims against her
employer, including ADEA claims. The Court held that despite the
fact that the plaintiff had accepted severance payments, waiver
of ADEA claims required strict compliance with the requirements
of the OWBPA.
The Court, however, did not address pre-dispute waivers in
Oubre. Moreover, the Court clearly focused on waivers of
substantive rights guaranteed by the ADEA, not procedural rights,
7
56 F.3d 656 (5th Cir. 1995) (Higginbotham, J.).
8
Id. at 660-61 (“We recognize that Congress, through the OWBPA, has
protected terminated employees who waive their substantive rights under ADEA in
exchange for a more favorable severance package; however, we find no clear
indication that Congress was likewise concerned with protecting employees who
agree to arbitrate claims that may arise during the course of their
employment.”). The First and Third Circuits have agreed with this approach. See
Rosenberg v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 170 F.3d 1, 12-13 (1st
Cir. 1999); Seus v. John Nuveen & Co., 146 F.3d 175, 181-82 (3d Cir. 1998). But
see Duffield v. Robertson Stephenson & Co., 144 F.3d 1182, 1190 n. 4 (9th Cir.
1998) (remarking that “current ADEA claims may require different treatment” from
those arising before the enactment of the OWBPA).
9
522 U.S. 422 (1998).
4
holding that “[t]he statutory command is clear: An employee ‘may
not waive’ an ADEA claim unless the waiver or release satisfies
the OWBPA's requirements.”10 As the First Circuit has noted, to
the extent that Oubre bears on this question, it suggests by use
of the term “claims” that the waiver provisions of the OWBPA
apply only to substantive rights.11 “By agreeing to arbitrate a
statutory claim, a party does not forgo the substantive rights
afforded by the statute; it only submits to their resolution in
an arbitral, rather than a judicial, forum.... We must assume
that if Congress intended the substantive protection afforded by
a given statute to include protection against waiver of the right
to a judicial forum, that intention will be deducible from text
or legislative history.”12 In Williams we found no evidence of
Congressional intent to include the right to a judicial forum in
the waiver protections provided by the OWBPA. Oubre does not
affect that conclusion.
Additionally, to interpret the OWBPA to apply to the
procedural right to a jury trial would mean that we must hold
that OWBPA prohibits pre-dispute arbitration agreements
10
Id. at 426-27 (emphasis added).
11
Rosenberg, 170 F.3d at 13.
12
Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614,
628 (1985). See also Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 29
(1991) (“Congress ... did not explicitly preclude arbitration ... in [the
OWBPA]....”).
5
altogether, as we noted in Williams.13 Again, Appellants must
demonstrate that Congress clearly intended such a result, and
they have not.14
III
Appellants’ remaining arguments consist of doomed state law
claims that the arbitration agreement is void for lack of
consideration and as unconscionable. We agree with the district
court that the DRP agreement is supported by consideration—the
mutual promise to arbitrate—and that Halliburton’s promise is not
illusory because amendment or termination of the agreement by
Halliburton requires a 10 day advance notice to be given.15 The
defendant’s assertion that the arbitration agreement is
unconscionable is similarly without merit.16
IV
For the foregoing reasons, the judgment of the district
court is AFFIRMED.
13
Williams, 56 F.3d at 661. This is because under the OWBPA an employee
cannot “waive rights or claims that may arise after the date the waiver is
executed.” 29 U.S.C. § 626(f)(1)(C).
14
Williams, 56 F.3d at 661, citing Gilmer, 500 U.S. at 26 (placing burden
of showing that “Congress intended to preclude a waiver of a judicial forum for
ADEA claims” on party seeking to avoid arbitration).
15
See In re Alamo Lumber Company, 23 S.W.3d 577 (Tex. App.–San Antonio
2000) (holding that arbitration agreement was supported by consideration of
mutual promise to arbitrate claims). Cf. J.M. Davidson, Inc. v. Webster, No. 13-
00-626-CV, 2001 WL 587037 (Tex. App.–Corpus Christi May 31, 2001) (holding
arbitration agreement void for lack of consideration where employer reserved
right to unilaterally abolish or change personnel policy without notice).
16
See In re Oakwood Mobile Homes, Inc., 987 S.W.2d 571 (Tex. 1999)
(holding that arbitration agreement was not unconscionable because of unequal
bargaining power between parties).
6
7