[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
July 16, 2009
No. 09-10709
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D. C. Docket No. 08-00217-CV-FTM-99-SPC
LUIS JIMENEZ,
individually,
Plaintiff-Appellant,
versus
COLLIER TRANSIT MANAGEMENT, INC.,
a Florida corporation,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(July 16, 2009)
Before BLACK, BARKETT and KRAVITCH, Circuit Judges.
PER CURIAM:
Luis Jimenez appeals the district court’s order granting summary judgment
to Collier Transit Management, Inc. (“Collier”). Jimenez initiated this breach of
collective bargaining agreement action after he was terminated from his
employment on October 17, 2007. Because we agree with the district court that
Jimenez failed to exhaust his remedies as set forth in the collective bargaining
agreement, we affirm.
BACKGROUND
Prior to October 2007, Jimenez worked for Collier as a bus driver and was a
member of Local 500 of the Transport Workers Union of America, AFL-CIO (the
“union”). A collective bargaining agreement (“the agreement”) entered into
between the union and Collier covered Jimenez’s employment at Collier.
The agreement outlines a grievance procedure through which an employee
who believes that he has been discharged without just cause may have his case
reviewed. The agreement’s grievance procedure consists of a two-step process.
Step I states:
The grievance shall be presented to the Company within seven (7)
days of the alleged grievance. The grievance shall be discussed by
the supervisor, the aggrieved employee, and the aggrieved
employee’s steward who shall represent the employee, if the
employee so desires, in an earnest attempt to settle the matter. The
supervisor shall evaluate the grievance or complaint and render a
decision.
2
Step 2 states:
If not settled in Step I, the grievance shall be submitted in writing to
the General Manager within ten (10) days after the Unions’s receipt
of the Step I reply. A meeting between the General Manager, the
aggrieved employee, and the aggrieved employee’s steward who shall
represent the employee if the employee so desires, shall be held
within seven (7) days following the Company’s receipt of the written
grievance. A reply in writing shall be mailed by the General Manager
to the Shop Steward of the Local Union, with a copy to the employee,
no later than five (5) days after the Step II meeting.
Article 9, Section A of the agreement further provides that “[s]hould any
grievance remain unsettled after exhausting the aforementioned [grievance]
procedure, either party hereto shall, if the party desires, demand arbitration . . .
Otherwise the grievance shall be considered settled.”
Additionally, Section D of Article 9 of the agreement provides that certain
rights reserved to management are not subject to arbitration. Article 2 reserves
certain rights to the company “to manage its business” which includes the right “to
discipline and discharge employees for just cause.”
On October 16, 2007, Jimenez was convicted of misdemeanor assault and
battery arising out of a dispute with a neighbor. The next day Jimenez was
discharged from his employment at Collier. Collier informed him that it
characterized his discharge as one done for “just cause.” In a letter dated October
26, 2007, Jimenez’s General Manager at Collier, Elizabeth Suchsland, informed
3
Jimenez that his employment was terminated because (1) the court-imposed
sentence would prevent him from reporting for work and (2) the nature of his
criminal misconduct “call[ed] into question [his] ability to perform as an employee
without exposing members of the riding public . . . to unacceptable risks.” The
letter also thanked Jimenez for “coming to see” Suchsland about his termination.
Jimenez filed suit in the U.S. District Court for the Middle District of
Florida claiming Collier breached the agreement. His amended complaint alleged
that Collier breached the agreement by (1) wrongfully discharging him where the
incident giving rise to his misdemeanor conviction was unrelated to his
employment and (2) failing to provide Jimenez with the right to arbitration.
Specifically, Jimenez alleged that certain provisions of the agreement itself denied
him the right to arbitration given in other provisions. Jimenez asserted that the
language of Article 2 when read together with Section D of Article 9 removes
decisions regarding termination for just cause from the arbitration provision, and
that this language thereby put Collier in breach of the agreement.
Collier filed a motion for summary judgment, arguing that Jimenez was not
entitled to bring a lawsuit because he had not exhausted the grievance procedures
provided in the agreement. Jimenez responded that he had exhausted the
procedures. Jimenez contended that he satisfied Step I by contacting the General
4
Manager “after being fired to dispute and discuss the firing.” Jimenez argued that
this satisfied the requirement that he present his grievance to Collier through his
supervisor when he contacted Suchsland because she had “made herself the ‘go-
to-person’ regarding [Jimenez’s] misdemeanor issue” by writing him a letter of
warning after he was charged with the crime. As for Step II, wherein the
employee is required to submit a written grievance after which a meeting will be
held between the General Manager, the aggrieved employee, and the aggrieved
employee’s steward, Jimenez asserted that he satisfied this requirement by
verbally contacting the General Manager a second time. He argues that this
second contact satisfies Step II because Suchsland’s letter demonstrates that
requesting a meeting would be “futile” as Suchsland had made up her mind to fire
Jimenez in June when he was charged with the misdemeanor.
The district court found that Jimenez had failed to exhaust the agreement’s
grievance procedures and that no exception for futility applied. Accordingly, the
district court granted Collier’s motion for summary judgment. Jimenez appealed.
STANDARD OF REVIEW
“We review the district court’s grant of summary judgment de novo,
applying the same legal standards that bound the district court, and viewing all
facts and reasonable inferences in the light most favorable to the nonmoving
5
party.” Cruz v. Publix Super Markets, Inc., 428 F.3d 1379, 1382 (11th Cir. 2005)
(citation and quotation omitted). Summary judgment is appropriate where “there
is no genuine issue as to any material fact and . . . the moving party is entitled to a
judgment as a matter of law.” Fed. R. Civ. P. 56(c).
DISCUSSION
“An employee seeking a remedy for an alleged breach of the collective-
bargaining agreement between his union and employer must attempt to exhaust
any exclusive grievance and arbitration procedures established by that agreement
before he may maintain a suit against his union or employer under § 301(a) of the
Labor Management Relations Act, 1947, 61 Stat. 156, 29 U.S.C. § 185(a).”
Clayton v. Int’l Union, United Auto., Aerospace, and Agr. Implement Workers of
Am., 451 U.S. 679, 681 (1981) (citing Republic Steel Corp. v. Maddox, 379 U.S.
650, 652-53 (1965)). If he does not exhaust those remedies or does not participate
in arbitration where required under the agreement, the employee may not pursue
relief in the courts. Republic Steel, 379 U.S. at 657-58.
Here, the parties dispute whether Jimenez exhausted his remedies under the
agreement. Jimenez’s main argument is that he was not required to arbitrate the
question of his wrongful termination because the arbitration agreement, under
Article 2 and Section D of Article 9, does not provide for arbitration where
6
management has exercised its right to terminate an employee for just cause.
Although Jimenez couches this argument in language of “futility,” his real
argument is that the arbitration agreement does not actually provide for arbitration
where the management exercises its right to discharge an employee for just cause.
We find no support in the language of the agreement for Jimenez’s strained
reading that claims for wrongful discharge are removed from the grievance and
arbitration requirements. Section C of Article 9 of the agreement states that
grievances for “alleged violations of the Agreement” are subject to the grievance
procedure and arbitration clauses. The only stated cause of action in Jimenez’s
complaint is for breach of the collective bargaining agreement. Jimenez’s claim is
thus clearly covered by the agreement, and Jimenez was required to submit his
claim to the grievance process and arbitration before pursuing a judicial remedy.
Furthermore, the agreement provides in Article 9, Section C that arbitration
shall be used to resolve questions regarding “the interpretation or application of
particular clauses of this Agreement.” Jimenez’s questions about whether the
management rights provision exempts a wrongful discharge claim from the
arbitration requirement should have been raised first through the grievance
procedure. As there is no evidence that Jimenez did so, he cannot circumvent the
agreement by bringing this lawsuit.
7
Additionally, Jimenez’s argument that he substantially complied with the
grievance procedure fails. Step II clearly requires the submission of a grievance in
writing. Jimenez acknowledges that he did not submit a written grievance, but
argues that verbally contacting Suchsland satisfied that requirement. Nothing in
the agreement implies that substantial compliance will suffice. Furthermore, even
if substantial compliance with Step II was permitted under the agreement, Jimenez
did not submit – nor even attempt to submit – his grievance to arbitration, which is
clearly a part of the grievance process established in the agreement. Thus, he
clearly failed to exhaust his administrative remedies prior to initiating this lawsuit.
Jimenez next argues that it would have been futile to pursue his claim
through the grievance process because Suchsland had clearly made up her mind to
terminate Jimenez. “Futility” provides a proper excuse for failing to exhaust
remedies set forth in a bargaining agreement. Pyles v. United Air Lines, Inc., 79
F.3d 1046, 1053 (11th Cir. 1996) (“[A]n exception to the exhaustion requirement
exists for situations where proceeding with administrative remedies would be
‘wholly futile.’”). The futility exception, however, requires more than that the
grievance procedures be unpromising. “The test for ‘futility’ is not . . . whether
the employees’ claims would succeed, but whether the employees could have
availed themselves of the grievance procedure.” Mason, III v. Continental Group,
8
Inc., 763 F.2d 1219, 1224 (11th Cir. 1985). To claim futility, the “employee may
not simply assert that his use of the grievance procedures would have been futile:
he must ordinarily at least have attempted to use them.” Parham v. Carrier Corp.,
9 F.3d 383, 390-91 (5th Cir. 1992) (citing Vaca v. Sipes, 386 U.S. 171, 184-85
(1967)). Jimenez did not allege that he attempted to invoke the grievance
procedures and that he was denied meaningful relief. Rather, he argues simply
that it would have been unsuccessful because the General Manager had already
made up her mind to fire him and because she had already participated in some
form of meeting, obviating the need for a formal meeting under Step II. This
assertion does not excuse Jimenez for failing to exhaust his remedies or puruse
arbitration as required under the agreement on the basis of futility.
Jimenez also argues that Collier “repudiated” his efforts to go through the
grievance procedures. Jimenez, however, did not raise this argument before the
district court and therefore we will not assess the merits of this assertion. See
Iraola & CIA, S.A. v. Kimberly-Clark Corp., 325 F.3d 1274, 1284-85 (11th Cir.
2003). Jimenez’s citation to two cases that happened to discuss repudiation did
not preserve that argument for review on appeal. Jimenez cited to Larsen v.
AirTran Airways, Inc., 2007 WL 2320592 (M.D. Fla., Aug. 10, 2007) and Durham
Life Ins.Co. v. Evans, 1994 WL 447406 (E.D. Pa. Aug. 19, 1994) in his discussion
9
of futility. The fact that these cases also separately mention repudiation does not
support Jimenez’s contention that he argued the issue of repudiation before the
district court. Although Jimenez’s parenthetical regarding Durham did refer to
repudiation, a brief reference in a parenthetical is insufficient to preserve an
argument. See Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n.6
(11th Cir. 1989) (noting that arguments made in passing on appeal are
“insufficient to present the matter for adjudication”).1
CONCLUSION
Because Jimenez failed to exhaust his administrative remedies under the
operative collective bargaining agreement and did not establish a lawful excuse for
such failure, we AFFIRM the district court’s order granting summary judgment to
Collier.
1
Regardless of whether Jimenez raised a repudiation defense to his failure to exhaust
administrative remedies in the court below, he would not obtain relief through this doctrine. In
order to argue that Collier repudiated the grievance process, he would have to show that he
attempted to utilize those procedures. Redmond v. Dresser Industries, Inc., 734 F.2d 633, 636
(11th Cir. 1984) (“[B]efore [the plaintiff] can assert repudiation of the grievance procedure, he
must first file his grievance.”). As discussed supra, Jimenez never attempted to file a written
grievance or submit his claim to arbitration.
10