United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT June 7, 2007
Charles R. Fulbruge III
Clerk
_________________
No. 06-20824
(Summary Calendar)
_________________
FRED M PLEASANT,
Plaintiff-Appellant,
versus
HOUSTON WORKS USA,
Defendant-Appellee.
Appeal from the United States District Court
For the Southern District of Texas
4:06-CV-1562
Before KING, HIGGINBOTHAM, , and GARZA, Circuit Judges.
PER CURIAM:*
Fred Pleasant (“Pleasant”) filed this suit against his former employer, Houston Works,
USA (“Houston Works”), alleging that Houston Works terminated his employment because
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
of his race, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”) and 42
U.S.C. § 1981 (“§ 1981”). Pleasant appeals an order of the district court granting Houston
Works’s motion to compel arbitration and dismissing Pleasant’s complaint. We affirm.
Houston Works is a non-profit workforce development organization that assists
underprivileged individuals with job placement, continuing education, and vocational training.
Houston Works maintains a mandatory Employment Dispute Resolution Program (the “EDR
Program”) that applies to all of its employees. The EDR Program “incorporates two steps:
(1) Open Door, and (2) Arbitration.” The Open Door step is an informal means of dispute
resolution that encourages the employee to raise any work-related matter, either verbally or
in writing, first with his direct supervisor. If after discussing the problem with his supervisor
the employee still feels that further review is necessary, he is authorized to take his dispute
to the next highest manager or supervisor in his chain of command and, thereafter, to the
Houston Works Human Resource Manager. The EDR Program specifically states that
“Houston Works will not retaliate against any employee for using the Open Door.”
If Houston Works and the employee are unable to resolve a dispute through the Open
Door process, the EDR Program provides for mandatory arbitration. The arbitration clause
in the EDR Program states as follows:
Any and all claims, disputes, or controversies arising out of or relating to your
employment . . . and/or the cessation of your employment must be resoled
exclusively by final and binding arbitration administered by the American
Arbitration Association (“AAA”) under its National Rules for Resolution of
Employment Disputes. All employment related claims against Houston
Works and its supervisors, managers, employees, agents, representatives,
officers, and directors . . . must be submitted to arbitration for final and
binding resolution, including, but not limited to claims for: . . . discrimination
or harassment on the basis of race, sex, age, national origin, religion,
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disability, or any other unlawful basis; breach of contract; unlawful retaliation;
[and] wrongful discharge . . . . Binding arbitration shall be the sole and
exclusive remedy for the resolution of all such claims.
The EDR Program further explains that if the employee “file[s] a lawsuit arising out of or
related to your employment or cessation of [his] employment, Houston Works will use the
EDR Program in support of its request to a court to dismiss the lawsuit and require [the
employee] instead to participate in arbitration of the dispute.”
On April 25, 2005, the manager of Houston Works’s Reliant Park location, Dale
Hawn (“Hawn”), hired Pleasant to work as an Employment Counselor. As a condition of his
employment with Houston Works, Pleasant was required to agree to be bound by the EDR
Program. Pleasant received a copy of the EDR Program, which he signed immediately below
the following text:
Your agreement to the application of the EDR Program to employment
disputes is a condition of your accepting employment and/or continuing
employment with Houston Works. . . . Under the EDR Program, both
Houston Works and you surrender rights to engage in civil litigation and to
have a trial by a judge and/or jury of any dispute.
I have read and understand the contents of the EDR Policy.
On August 15, 2005, Pleasant reported that two men attempted to rob him in the
Houston Works parking lot. As a result of Pleasant’s report, Hawn held an employee meeting
two days later, during which he attempted to review safety issues. According to Hawn,
Pleasant interrupted him and, in an inappropriate and disruptive manner, argued that measures
suggested by Hawn were inadequate. According to Pleasant, when he spoke up at the
meeting to make specific suggestions about improving workplace security, Hawn replied that
he “would gladly accept [Pleasant’s] resignation right then” if Pleasant did not like Hawn’s
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suggestions. Following the meeting, Pleasant lodged with Houston Works’s Employee
Relations Manager, Art Torres (“Torres”), both verbal and written complaints detailing his
safety concerns and asserting that Hawn had refused to provide him with an “Open Door” to
air his concerns. Later that afternoon, Hawn terminated Pleasant’s employment. According
to Hawn, the decision to discharge Pleasant was “based on his poor work performance and
his inappropriate, argumentative, and disruptive conduct both in connection with [an August
9, 2005 customer complaint] and in the August 17, 2005 morning meeting.”
Pleasant subsequently filed the present lawsuit, in which he alleges that Houston
Works discharged him because of his race in violation of Title VII and § 1983. Houston
works promptly filed a Motion to Dismiss and Compel Arbitration under the Federal
Arbitration Act (“FAA”), arguing that Pleasant’s claims were subject to the binding
arbitration clause contained in the EDR Program. In response, Pleasant asserted that because
Houston Works failed to provide him with an “Open Door” to air his grievances, as the EDR
Program required, he was excused from performing his obligation to arbitrate. The district
court disagreed, dismissed Pleasant’s complaint, and ordered the case to arbitration. After
the district court denied his motion for reconsideration, Pleasant timely filed a notice of
appeal.
We review a district court’s grant of a motion to compel arbitration de novo. Hadnot
v. Bay, Ltd., 344 F.3d 474, 476 (5th Cir. 2003) (citing Webb v. Investacorp, 89 F.3d 252, 257
(5th Cir. 1996)). “In adjudicating a motion to compel arbitration under the [FAA], courts
generally conduct a two-step inquiry.” Webb, 89 F.3d at 257-58. First, the court must
determine “whether the parties agreed to arbitrate the dispute in question.” Id. at 258
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(citations omitted). “This determination involves two considerations: (1) whether there is a
valid agreement to arbitrate between the parties; and (2) whether the dispute in question falls
within the scope of that arbitration agreement.” Id. If the court finds that the parties agreed
to arbitrate the dispute, the court must then consider “whether legal constraints external to
the parties’ agreement foreclosed the arbitration of those claims.” Id. (internal quotation
marks and citations omitted).1
Pleasant does not dispute that he agreed with Houston Works to arbitrate all disputes
related to his employment, including the discriminatory discharge claims asserted in this
lawsuit. In fact, Pleasant unequivocally concedes that “there is evidence that he executed a
valid arbitration agreement” with Houston Works. Pleasant nevertheless contends that the
arbitration clause is unenforceable due to Houston Works’s alleged breach of its obligations
under the EDR Program. Specifically, Pleasant argues that “[his] obligation to submit any
dispute to binding arbitration was conditioned on [Houston Works] permitting [him] to use
the ‘Open Door’ step without retaliation.” Because Houston Works’s failure to perform its
obligations under the Open Door provision was a material breach of the EDR Program,
Pleasant argues, he should be excused from his agreement to submit the present dispute to
binding arbitration. Houston Works responds that whether the arbitration clause is
unenforceable due to a breach of another provision of the EDR Program is for the arbitrator,
not the court, to decide. We agree.
1
Pleasant concedes in his brief that this case hinges on first step of the Webb inquiry and,
hence, that the court need not address the second step of the inquiry. Moreover, he does not
challenge the arbitrability of Title VII and § 1981 claims generally. See Rojas v. T.K. Commc’ns,
Inc., 87 F.3d 745, 747-48 (5th Cir. 1996) (holding that Title VII claims are subject to mandatory
arbitration agreements).
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“[A]s a matter of substantive federal arbitration law, an arbitration provision is
severable from the remainder of the contract.” Buckeye Check Cashing, Inc. v. Cardegna,
126 S. Ct. 1204, 1209 (2006). Because “[a] federal court can only adjudicate challenges to
‘the making and performance of the agreement to arbitrate,’ not challenges to the
enforceability of the contract as a whole,” Mun. Energy Agency of Miss. v. Big Rivers Elec.
Corp., 804 F.2d 338, 342 (5th Cir. 1986) (quoting Prima Paint Corp. v. Flood & Conklin
Mfg. Co., 87 S. Ct. 1801, 1806 (1967)), challenges to the enforceability of a contract
containing an arbitration clause are determined by the arbitrator, see Cardegna, 126 S. Ct.
at 1210. See also Will-Drill Res., Inc. v. Samson Res., Co., 352 F.3d 211, 218 (5th Cir.
2003) (“[W]here parties have formed an agreement which contains an arbitration clause, any
attempt to dissolve that agreement by having the entire agreement declared voidable or void
is for the arbitrator. Only if the arbitration clause is attacked on an independent basis can the
court decide the dispute; otherwise, general attacks on the agreement are for the arbitrator.”)
(footnotes omitted); accord John B. Goodman Ltd. P’ship v. THF Constr., Inc., 321 F.3d
1094, 1098 (11th Cir. 2003) (per curiam) (“[O]nce the court is satisfied that the parties
actually agreed to arbitrate the dispute, it is for the arbitrator to decide whether the contract
containing the valid agreement to arbitrate is itself enforceable.”).
In this case, there is no dispute that Houston Works and Pleasant executed a valid
agreement to arbitrate all disputes arising out of or relating to Pleasant’s employment.
Accordingly, it is for the arbitrator, not the district court, to decide whether the EDR
Program in which the arbitration clause is embedded is enforceable. If Pleasant wishes to
pursue the argument that Houston Works’s alleged breach of the Open Door provision
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excuses his compliance with the arbitration clause, he must address the argument to the
arbitrator.
Because the parties agreed to arbitrate the discriminatory discharge claims asserted
in this lawsuit, the district court properly granted Houston Works’s motion to dismiss and
compel arbitration. See Alford v. Dean Witter Reynolds, Inc., 975 F.2d 1161, 1164 (5th Cir.
1999) (“Because it determined that all of Alford’s claims were subject to arbitration, the
district court acted within its discretion when it dismissed this case with prejudice.”).
We AFFIRM.
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