FILED
NOT FOR PUBLICATION
MAY 23 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANGEL SALAS, an individual, No. 14-55748
Plaintiff - Appellant, D.C. No. 2:09-cv-07739-GHK-
AJW
v.
ANHEUSER-BUSCH SALES OF MEMORANDUM*
SOUTH BAY, INC., a business entity,
exact form unknown,
Defendant,
and
ANHEUSER-BUSCH, INC., a business
entity, exact form unknown,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
George H. King, Chief District Judge, Presiding
Argued and Submitted May 3, 2016
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: BYBEE and N.R. SMITH, Circuit Judges, and STEIN,** District Judge.
Angel Salas appeals the district court’s order compelling arbitration of his
claims under California’s Fair Employment and Housing Act (“FEHA”). We have
jurisdiction pursuant to 28 U.S.C. § 1291. We reverse and remand to the district
court for further proceedings.
1. Salas’s case is not moot. “A case becomes moot only when it is impossible
for a court to grant ‘any effectual relief whatever’ to the prevailing party.” Knox v.
Serv. Emps. Int’l Union, Local 1000, 132 S. Ct. 2277, 2287 (2012) (quoting Erie v.
Pap’s A.M., 529 U.S. 277, 287 (2000)). We can still provide Salas with effectual
relief if he prevails on his claim that the district court erred by compelling
arbitration. Cf. Britton v. Co-op Banking Grp., 916 F.2d 1405, 1410 & n.6 (9th
Cir. 1990) (“[T]he possibility of obtaining meaningful relief on appeal is not
eliminated by the intervening event of the conclusion of the trial court proceedings.
If [the defendant] were to prevail in his claim to a right to arbitration, the district
court judgment would be vacated and the parties could proceed to arbitration.”).
Anheuser-Busch argues that Salas’s case is moot because he entered into a
stipulation and other informal agreements whereby he agreed to certain procedural
**
The Honorable Sidney H. Stein, District Judge for the U.S. District
Court for the Southern District of New York, sitting by designation.
2
aspects of arbitration. In making this argument, Anheuser-Busch appears to
assume that Salas’s only objection to arbitrating his case was the lack of certain
procedures and that these subsequent agreements cured whatever objections Salas
had. However, Salas objected to arbitration not because of the lack of certain
procedures, but because he desired to litigate his claims instead. Accordingly,
Salas did not moot his claim by subsequently agreeing to certain arbitration
procedures.1
2. The district court erred by compelling arbitration because the Collective
Bargaining Agreement (“CBA”) between Anheuser-Busch and Salas’s union,
Teamsters Local Union No. 896 (“Union”), does not “clearly and unmistakably”
require Salas to arbitrate his statutory discrimination claims under FEHA. See 14
Penn Plaza LLC v. Pyett, 556 U.S. 247, 273 (2009); Wright v. Universal Mar.
Serv. Corp., 525 U.S. 70, 79–80 (1998). The CBA does not “explicit[ly]
incorporat[e]” Salas’s FEHA claims. See Wright, 525 U.S. at 80. Under the CBA,
the mandatory grievance procedure described in Section 32 is only applicable to
1
We do not address whether Salas waived his objection to the district court’s
order compelling arbitration by failing to object to the confirmation of the
arbitrator’s award in district court. Anheuser-Busch has not raised this argument
on appeal. Instead, Anheuser-Busch only argues that Salas waived any objection
to the arbitrator’s award itself by failing to object to such award before the district
court, a point that Salas does not dispute.
3
FEHA claims when compliance with the CBA conflicts with Anheuser-Busch’s
obligations under . . . FEHA. Further, the CBA provides for arbitration only
between the Union and Anheuser-Busch. It does not address an individual
employee’s right to bring a FEHA claim against Anheuser-Busch.2
REVERSED and REMANDED.
2
Salas’s motions for judicial notice are denied as moot.
4