Marie v. Allied Home Mortgage Corp.

United States Court of Appeals
For the First Circuit

No. 04-1403

MARTHA M. MARIE,

Plaintiff, Appellee,

v.

ALLIED HOME MORTGAGE CORP.,

Defendant, Appellant,

JOSEPH THOMPSON,

Defendant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Lynch, Circuit Judge,
Stahl, Senior Circuit Judge,
and Howard, Circuit Judge.

Diane M. Saunders, with whom Danielle Meagher, James M.
Pender, and Morgan, Brown & Joy, LLP, were on brief, for appellant.
Robert M. Mendillo, with whom Mendillo & Ross, LLP, was on
brief, for appellee.

March 16, 2005
 LYNCH, Circuit Judge. This case involving employment

arbitration agreements deals with important issues both for Title

VII law and for the division of labor between courts and

arbitrators after the Supreme Court's decisions in Howsam v. Dean

Witter Reynolds, Inc., 537 U.S. 79 (2002), and Green Tree Fin.

Corp. v. Bazzle, 539 U.S. 444 (2003). The employee concedes that

the Title VII claims involved in this case are arbitrable. See

Rosenberg v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 170 F.3d

1, 10 (1st Cir. 1999). The key issue is whether an employer waives

its contractual right to compel arbitration of a Title VII claim by

not filing for arbitration when the employee initiates an EEOC

complaint, but instead waiting and only moving to compel

arbitration after the employee later files a civil claim in federal

court. We hold here that although the issue of compliance with a

contractual time limit should, in the first instance, be addressed

by the arbitrator, the issue of waiver of the right to arbitrate

due to inconsistent activity in another litigation forum remains an

issue for the court even after the Howsam and Green Tree holdings.

Moreover, on the merits, we hold that an employer does

not waive its right to arbitration by failing to demand arbitration

during the pendency of an EEOC investigation. This confirms in the

light of intervening Supreme Court cases a result this court had

reached earlier on different reasoning. See Brennan v. King, 139

F.3d 258, 263-64 (1st Cir. 1998). Our reasoning rests in part on

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EEOC v. Waffle House, Inc., 534 U.S. 279 (2002), which held that an

employer cannot preclude the EEOC from bringing an enforcement

action based on an employee's complaint by relying on an

arbitration clause between the employer and employee. In light of

Waffle House, a rule forcing the employer to file for arbitration

during the pendency of an EEOC investigation would lead to

wasteful, duplicative proceedings, and we reject such a result. We

hold that the employer in this case has not waived its right to

arbitrate the claims at issue. We reverse the decision of the

district court refusing to stay judicial proceedings and compel

arbitration, and remand.

I.

Allied Home Mortgage Corporation is a Texas corporation

in the business of mortgage banking; it has a branch office in

Woburn, Massachusetts. Martha M. Marie began working for Allied's

Woburn branch on November 1, 2000 as a mortgage loan processor.

Joseph Thompson, a branch manager of Allied's Woburn branch, hired

Marie and was her supervisor. He was Marie's boyfriend at the time

of her hiring. She was to be compensated by receiving fifty

percent of any loan origination fees on all loans she originated.

Marie alleges that Thompson used "undue influence, verbal

abuse, and threats of physical abuse" to divert loan origination

credit from Marie to Thompson, to force Marie to engage in an

"autodialing" scheme in violation of The Telephone Consumer

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Protection Act of 1991, 47 U.S.C. § 227, and to force Marie to pay

for office supplies out of her own pocket. Marie alleges that

Allied knew that some of her origination credit was being diverted

from Marie to Thompson and did nothing.

Marie also alleges that Thompson threw her out of a

stopped car in the winter of 2002 because he was angry with her

work. Finally, she alleges that Thompson physically beat Marie in

June 2002 both because he was angry with her work and because he

thought she was having a sexual affair with another Allied

employee. Marie alleges that Thompson wanted her to have sexual

relations solely with him. Marie never returned to work after the

beating in June -- the company listed her termination date as June

28, 2002. She claims that Allied falsely reported in its personnel

records that she voluntarily quit her position. In July 2002,

Marie sought and obtained an Abuse Prevention Order from a

Massachusetts state court requiring Thompson to stay away from her.

When Marie was hired by Allied on November 1, 2000, she

signed an employment contract that was also signed by Thompson as

Allied's representative. This four-page standard-form agreement

contained an arbitration clause in Article 5.1. The clause states:

Employer and Employee agree to submit to final
and binding arbitration any and all disputes,
claims (whether in tort, contract, statutory,
or otherwise), and disagreements concerning
the interpretation or application of this
Agreement and Employee's employment by
Employer and the termination of this Agreement
and Employee's employment by Employer

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 including the arbitrability of any such
controversy or claim . . . . Arbitration
under this section must be initiated within
sixty days of the action, inaction, or
occurrence about which the party initiating
the arbitration is complaining.

The agreement also stated that any arbitration was to be conducted

under the rules of the American Arbitration Association (AAA).

On April 23, 2003, Marie filed a charge of discrimination

with the Equal Employment Opportunity Commission (EEOC) and with

the Massachusetts Commission Against Discrimination (MCAD) against

Allied and Thompson. The charge alleged sexual discrimination in

violation of Title VII of the Civil Rights Act of 1964 and

applicable state law. The charge, in particular, alleged that

during Marie's employment with Allied, Thompson "physically abused

[her] and verbally abused [her] repeatedly because he thought [she]

was having a sexual affair with another employee, and Thompson

wanted [her] to have sexual relations only with him."

Allied filed a response to this charge on May 22, 2003.

The EEOC issued a Dismissal and Notice of Rights on July 18, 2003,

stating that it had concluded its investigation without finding

that any violation of Title VII occurred. It stated that the

evidence showed that Marie and Thompson lived together and

represented themselves as domestic partners; there was no evidence

that her "consensual relationship" with Thompson was "unwelcome" as

required to be actionable under Title VII. Also, Thompson's

actions were motivated by his personal relationship, not by Marie's

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gender. Finally, the dismissal noted that Marie did not utilize

Allied's existing sexual harassment policy. The dismissal stated

that Marie now had a right to sue Thompson or Allied for sexual

discrimination in federal or state court.

On October 14, 2003, Marie filed a civil complaint in

Massachusetts Superior Court, naming Allied and Thompson as

defendants; an amended complaint was filed on November 6, 2003.

The amended complaint named both Allied and Thompson as defendants

for assault and battery and sexual harassment under Title VII of

the Civil Rights Act of 1964, and named Allied for negligent

supervision of Thompson and for breach of contract and unjust

enrichment. Marie asked for money damages and attorney's fees and

costs under Title VII.

Thompson has never been served; Allied was served on

November 20, 2003. Allied removed the action to federal district

court in Massachusetts on December 9, 2003. On December 22, Allied

filed a demand for arbitration with the AAA, within sixty days of

being served. On December 23, 2003, Allied moved to compel

arbitration and to stay the court proceedings; the motion was

opposed by Marie. This motion was denied on January 8, 2004 (the

order was docketed on January 12, 2004), by order stating: "It

being undisputed that the initiation of arbitration proceedings

occurred on December 22, 2003, more than sixty days after the

conclusion of [the] charge proceedings before the [EEOC], the

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demand for arbitration is untimely under Article V of plaintiff's

employment agreement."

Allied did not appeal this order but instead, on January

26, 2004, moved to dismiss Marie's complaint as untimely, or, in

the alternative, to reconsider the denial of the motion to compel

arbitration and stay proceedings under Fed. R. Civ. P. 59(e). This

motion was denied as to each alternative on February 18. The court

considered the contract to be one of adhesion and relied upon the

rule that an "ambiguous provision in an adhesion agreement will be

strictly construed against the party that wrote it." The court

also stated that Allied's argument was based on the premise that

Marie was required to initiate arbitration within sixty days of the

conclusion of the EEOC proceedings if she wanted to pursue her

claims, while Allied had six years (the full limitation period for

contract actions under Massachusetts law) to demand arbitration.

This, the court stated, was inequitable and a "breathtaking"

reading of the contract. The court, citing Martin v. Norwood, 478

N.E.2d 955, 957-58 (Mass. 1985), held that Allied, through its

delay, had "waived" its right to arbitrate the claims and thus the

lawsuit would proceed.

The district court's January 12 and February 18 holdings

relied on two distinct theories for why arbitration should not be

compelled and litigation stayed: (1) Allied's purported failure to

comply with the precise 60-day time limit contained in the

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arbitration provision, as interpreted by the court, and (2)

Allied's waiver of its right to arbitrate due to unreasonable

delay.

Allied filed a notice of appeal to this court on March

12, 2004. The notice appealed the district court's February 18,

2004 order, "insofar as such [o]rder denied Allied's motion for

reconsideration of the denial of Allied's motion to compel

arbitration."

II.

We first examine the complex issue of our jurisdiction in

this case; Marie argues there is none.

Ordinarily, appeals are only permitted from final

judgments of the district court. There are a limited number of

exceptions. See, e.g., Puerto Rico Aqueduct & Sewer Auth. v.

Metcalf & Eddy, Inc., 506 U.S. 139, 142-43 (1993). A few of these

exceptions occur in the arbitration context, as stated in the

Federal Arbitration Act (FAA). See 9 U.S.C. § 16(a). Appeal may

be taken from an interlocutory order of the district court

"refusing a stay of any action" pending arbitration or "denying a

petition . . . to order arbitration to proceed," although no appeal

may be taken from a district court's granting such a stay or

granting a motion to compel arbitration.1 Id. § 16(a)(1), (b).

1
We note that we have no jurisdiction over the motion to
dismiss filed with Allied's motion for reconsideration on January
26, 2004. Allied made no attempt to appeal this determination and,

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 In this case, Allied filed a motion with the district

court to stay court proceedings and compel arbitration; both

requests were denied and these denials were immediately appealable.

But interlocutory appeals, like all other appeals, are governed by

the time limitations identified in Fed. R. App. P. 4(a)(1)(A).

This provision requires a party to file the notice of appeal within

30 days "after the judgment or order appealed from is entered."

Id. This timeliness requirement is jurisdictional. See Griggs v.

Provident Consumer Disc. Co., 459 U.S. 56, 61 (1982) ("It is well

settled that the requirement of a timely notice of appeal is

'mandatory and jurisdictional.'" (quoting Browder v. Dir., Ill.

Dep't of Corr., 434 U.S. 257, 264 (1978))); see also Davignon v.

Clemmey, 322 F.3d 1, 10-11 (1st Cir. 2003) (timely notice of appeal

requirement is jurisdictional although it is not an Article III

requirement).

Rather than appealing immediately, Allied filed a motion

for reconsideration. Allied argues that its filing a motion for

reconsideration within ten days of the initial order tolled the

time for appeal until after the court's ruling on the motion for

more importantly, a denial of a 12(b)(6) motion to dismiss is not
an appealable interlocutory order. Marie argues that Allied has
waived review of the denial of the motion to compel arbitration and
stay proceedings because its initial brief to this court only
discussed the motion to dismiss and not the latter motion. This is
untrue: while Allied's initial brief did erroneously discuss the
order denying the motion to dismiss, it also discussed the denial
of the motion to compel arbitration and stay proceedings.

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reconsideration. Since an appeal was filed within thirty days of

the ruling on the motion for reconsideration, Allied argues that

the appeal is timely.

Allied's position is correct. Allied's motion for

reconsideration stated that its basis was as a motion to alter or

amend the judgment under Fed. R. Civ. P. 59(e); at any rate, we

have held that a motion for reconsideration should be construed as

a motion to alter or amend a judgment under Rule 59(e) where this

is relevant for jurisdictional purposes. See, e.g., United States

v. $23,000 in U.S. Currency, 356 F.3d 157, 165 n.9 (1st Cir. 2004);

Young v. Gordon, 330 F.3d 76, 80 (1st Cir. 2003); In re Sun Pipe

Line Co., 831 F.2d 22, 24 (1st Cir. 1987) ("Notwithstanding that

[appellant] did not denominate any particular rule as the

springboard for its reconsideration motion, it is settled in this

circuit that a motion which asked the court to modify its earlier

disposition of a case because of an allegedly erroneous legal

result is brought under Fed. R. Civ. P. 59(e)."). The motion for

reconsideration filed here must be so construed.2

2
We note that it is very difficult to prevail on a Rule 59(e)
motion. The general rule in this circuit is that the moving party
must "either clearly establish a manifest error of law or must
present newly discovered evidence." Pomerleau v. W. Springfield
Pub. Sch., 362 F.3d 143, 146 n.2 (1st Cir. 2004) (quoting FDIC v.
World Univ. Inc., 978 F.2d 10, 16 (1st Cir. 1992)); see also 11 C.
Wright et al., Federal Practice & Procedure § 2810.1 (2d ed. 1995)
(noting four grounds for granting such a motion: manifest errors of
law or fact, newly discovered or previously unavailable evidence,
manifest injustice, and an intervening change in controlling law).
As well, grants and denials of Rule 59(e) motions are reviewed only

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 The "judgment" that Allied asked the court to "alter or

amend" was the court's January 8, 2004 order denying Allied's

motion to stay proceedings and compel arbitration. Fed. R. Civ. P.

59(e). For purposes of the Federal Rules of Civil Procedure, this

order was a judgment because it was an "order from which an appeal

lies." Fed. R. Civ. P. 54(a); see Abdulwali v. Wash. Metro. Area

Transit Auth., 315 F.3d 302, 303-04 (D.C. Cir. 2003) (order denying

summary judgment based on sovereign immunity was "judgment" for

purposes of Federal Rules of Civil Procedure); Lichtenberg v.

Besicorp Group Inc., 204 F.3d 397, 400-01 (2d Cir. 2000) (same with

respect to order granting a preliminary injunction); Roque-

Rodriquez v. Lema Moya, 926 F.2d 103, 106 (1st Cir. 1991) (same

with respect to order denying summary judgment based on qualified

immunity).

The motion requesting that the January 8 order be altered

or amended was timely filed within ten days of that order.3 Fed.

for abuse of discretion. See Venegas-Hernandez v. Sonolux Records,
370 F.3d 183, 190 (1st Cir. 2004). Allied claimed to have brought
its motion because of a manifest error of law made by the district
court. Even though Allied may have had little chance of prevailing
on its Rule 59(e) motion, the motion still acted to toll the 30-day
appeal period.
3
There was some question about this at oral argument; in
response, Allied submitted a Rule 28(j) letter. The order was
dated January 8, 2004, but it was not entered on the docket until
January 12, 2004. The docketed date is the one used for purposes
of computing filing deadlines. See Roque-Rodriguez, 926 F.2d at
106. The ten day limit is unquestionably met from this latter
date, given that the day the order is handed down, as well as
intermediate weekends and holidays, are not included in the

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R. Civ. P. 59(e). Under Fed. R. App. P. 4(a)(4)(A), certain

motions, if timely filed, can toll the thirty-day appeal period.

A motion under Fed. R. Civ. P. 59(e) to alter or amend the judgment

appears on this list. Fed. R. App. P. 4(a)(4)(A)(iv). A timely

motion to alter or amend a "judgment" that is an appealable

interlocutory order tolls the time for filing a notice of appeal.

See Lichtenberg, 204 F.3d at 400-01; Roque-Rodriguez, 926 F.2d at

106-07; Denley v. Shearson/Am. Express, Inc., 733 F.2d 39, 41 (6th

Cir. 1984). The thirty-day clock restarts after the order denying

the motion to alter or amend the judgment. Fed. R. App. P.

4(a)(4)(A). This order was handed down on February 18, 2004;

Allied filed its notice of appeal on March 12, 2004. The notice of

appeal was thus timely as to the underlying motion to stay

proceedings or compel arbitration.4

calculation. See id. at 106 n.5, 107.
4
Any motion for reconsideration filed after the ten day period
does not toll the time period for appealing the underlying order
that the party is asking to be reconsidered. See, e.g.,
Lichtenberg, 204 F.3d at 401.
As well, at least absent some newly available evidence, law,
or a new stage of the proceedings, orders denying such motions for
reconsideration of an appealable interlocutory order are generally
not themselves appealable. See, e.g., Fisichelli v. Town of
Methuen, 884 F.2d 17, 19 (1st Cir. 1989) (no appellate jurisdiction
over motion to reconsider, raising no newly available facts or
arguments, filed one and a half years after denial of original
motion for qualified immunity); Cozza v. Network Assocs., Inc., 362
F.3d 12, 15 (1st Cir. 2004) (leaving open question of whether
appeals court would have jurisdiction over motion for
reconsideration of order denying stay of proceedings and compelling
arbitration based on newly available evidence); see also Behrens v.
Pelletier, 516 U.S. 299, 306-07 (1996) (allowing appeals of orders

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 Marie argues that, even granting all of this, Allied did

not attempt to appeal the underlying motion to stay proceedings or

compel arbitration, but only the order denying reconsideration,

because its notice of appeal named only the latter order. It is

true that the notice of appeal named only the order denying

Allied's motion for reconsideration as being appealed, and Fed. R.

App. P. 3(c)(1)(B) states that a party should "designate the

judgment, order, or part thereof being appealed." As well, a Rule

59(e) motion is separate from the underlying judgment for purposes

of appeal. Correa v. Cruisers, 298 F.3d 13, 21 n.3 (1st Cir.

2002).

However, when determining what is actually being

appealed, we have been liberal. See Chamorro v. Puerto Rican Cars,

Inc., 304 F.3d 1, 3-4 (1st Cir. 2002). We look to the appellant's

intent on the record as a whole and at whether the appellee has

been misled by the appellant's unclear notice. See Foman v. Davis,

denying qualified immunity both at motion to dismiss stage and at
summary judgment stage); Oblix, Inc. v. Winiecki, 374 F.3d 488, 490
(7th Cir. 2004) (allowing jurisdiction over motion to reconsider
filed more than ten days after order denying motion to compel
arbitration, where judge invited reconsideration in order to
consider new case law). Such a denial of a motion for
reconsideration is not another denial on the merits of the
immediately appealable underlying motion. The Fisichelli court
stressed that this rule was "virtually essential to orderly
judicial management," since interlocutory motions to reconsider are
not in the Federal Rules and therefore can be brought at any point
in a proceeding, and as many times as a movant wishes. Fisichelli,
884 F.2d at 19. "[A] dilatory defendant would receive not only his
allotted bite at the apple, but an invitation to gnaw at will."
Id.

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371 U.S. 178, 181-82 (1962) ("It is . . . entirely contrary to the

spirit of the Federal Rules of Civil Procedure for decisions on the

merits to be avoided on the basis of . . . mere technicalities.");

Young v. Gordon, 330 F.3d 76, 80-81 (1st Cir. 2003); Zukowski v.

St. Lukes Home Care Program, 326 F.3d 278, 283 n.4 (1st Cir. 2003)

(notice of appeal may be read to include denial of underlying

motion, and not simply denial of motion for reconsideration, when

it "can be fairly inferred from the notice" that appellant intended

to appeal the underlying motion (quoting Aybar v. Crispin-Reyes,

118 F.3d 10, 15 n.5 (1st Cir. 1997))); Correa, 298 F.3d at 21 n.3

(briefs as well as notice of appeal can be consulted during this

process); Chamorro, 304 F.3d at 3-4. Here, based on our review of

the notice of appeal as well as the briefs, Allied manifested an

intent, however awkwardly phrased, to appeal the underlying order

denying the motion to stay proceedings and compel arbitration as

well as the later denial of the Rule 59(e) motion.5

We will exercise jurisdiction to review the district

court's initial order denying Allied's motion to stay proceedings

and compel arbitration. We turn now to the merits.

5
Marie should not have been misled by Allied's notice of
appeal, but it is true that her initial brief focused on the
jurisdictional issue and touched on the merits only in a single
footnote. Any possible prejudice was vitiated by this court's
order of January 18, 2005, which granted Marie fourteen days to
file an additional brief on the merits; such a brief was filed by
Marie on February 1, 2005. Another order of this court on February
9 granted Allied seven days to file a brief responding to Marie's
new brief; such a brief was filed by Allied on February 16.

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 III.

Given the nature of the issues in this case, the primary

of which is waiver, our review of the district court's denial of a

motion to compel arbitration and stay judicial proceedings is de

novo. In re Citigroup, Inc., 376 F.3d 23, 25-26 (1st Cir. 2004)

(review of waiver issue, fact finding aside, is de novo); InterGen

N.V. v. Grina, 344 F.3d 134, 141 (1st Cir. 2003); KKW Enters., Inc.

v. Gloria Jean's Gourmet Coffees Franchising Corp., 184 F.3d 42, 48

(1st Cir. 1999).

A. Who decides each issue: court or arbitrator?

The initial question is whether the court or the

arbitrator is empowered to decide the issues of (1) waiver of

Allied's right to arbitrate, and (2) compliance with the 60-day

contractual provision.6 We begin by considering relevant precedent

in this area.

It does not resolve these division of labor issues merely

to note that they are usually, ultimately, matters of contract

interpretation. See Green Tree Fin. Corp. v. Bazzle, 539 U.S. 444,

451-52 (2003) (plurality opinion); First Options of Chicago, Inc.

v. Kaplan, 514 U.S. 938, 943 (1995). Certain presumptions have

6
Of course, it was not until plaintiff filed her amended
complaint and served Allied on November 20, 2003 that Allied was on
notice of Marie's non-Title VII claims: assault and battery,
negligent supervision, breach of contract, and unjust enrichment.
There is no question that Allied made its demand for arbitration as
to those claims within 60 days of its first notice of the claims.

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been constructed to aid in the resolution of these issues of

division of responsibility; these presumptions generally hold "in

the absence of clear and unmistakable evidence to the contrary."

See Green Tree, 539 U.S. at 452 (alterations, internal quotation

marks, and citation omitted). These presumptions operate within

the underlying framework that "any doubts concerning the scope of

arbitrable issues should be resolved in favor of arbitration,"

given the pro-arbitration policy of the Federal Arbitration Act.

Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-

25 (1983).

The Supreme Court has most recently treated the issue of

how these presumptions operate in Howsam v. Dean Witter Reynolds,

Inc., 537 U.S. 79 (2002), and Green Tree, 539 U.S. at 444, where

much of the Court's precedent in this area was consolidated and

simplified. In Howsam, the Court held that the issue of whether an

arbitration claim was barred by a six-year limitations period

embedded in the arbitration rules under which the parties had

agreed to arbitrate was an issue for the arbitrator, and not for

the court. Howsam, 537 U.S. at 85-86. The Court noted that at

least two sorts of questions were presumptively for the court to

decide: (1) "whether the parties are bound by a given arbitration

clause," and (2) "whether a concededly binding arbitration clause

applied to a particular type of controversy." Id. at 84. Many

other types of claims, including even some "gateway questions" that

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might dispose of the entire claim, are presumptively left to the

arbitrator. See id. at 84-85. This category includes "procedural

questions which grow out of the dispute and bear on its final

disposition." Id. at 84 (internal quotation marks omitted). This

distinction has employed the rough rubric that procedural issues,

even if potentially dispositive, are left to the arbitrator;

substantive questions about the kind of disputes intended for

arbitration are reserved for the court, absent clear and

unmistakable evidence to the contrary.7

In Green Tree, the Court held that whether an arbitration

agreement allowed for class arbitration was likewise an issue of

contract interpretation for the arbitrator rather than the judge.

Green Tree, 539 U.S. at 452-53. The Court reaffirmed the basic

framework of presumptions described in Howsam and held that the

issue here, which went to "what kind of arbitration proceeding the

parties agreed to" rather than "whether they agreed to arbitrate a

matter," was presumptively for the arbitrator. Id. at 452.

7
The general rule, which the Supreme Court culled from the
Revised Uniform Arbitration Act ("RUAA") (which in turn was based
on trends and reasoning embodied in judicial precedent), was that
an "arbitrator shall decide whether a condition precedent to
arbitrability has been fulfilled"; "in the absence of an agreement
to the contrary, issues of substantive arbitrability . . . are for
a court to decide and issues of procedural arbitrability, i.e.,
whether prerequisites such as time limits, notice, laches,
estoppel, and other conditions precedent to an obligation to
arbitrate have been met, are for the arbitrators to decide." Id.
at 85 (quoting RUAA § 6(c) & cmt. 2, 7 U.L.A. 12-13 (Supp. 2002)
(internal quotation marks omitted) (emphasis in Howsam)).

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 The Court in both Howsam and Green Tree also stressed

issues of comparative expertise. In the face of contractual

silence, courts should presume that parties intend to give their

disputes to the most able decisionmaker on a given issue, both for

contractual and public policy reasons. Howsam, 537 U.S. at 85.

The Howsam Court stated that the arbitrators were presumptively

more expert in interpreting their own limitations rule, id., while

the Green Tree Court noted that the class arbitration issue raised

questions of "contract interpretation and arbitration procedures,"

both of which an arbitrator was "well suited to answer," Green

Tree, 539 U.S. at 453.

This circuit has had only two opportunities to consider

the impact of Howsam and Green Tree on the division of issues

between the court and the arbitrator. In Shaw's Supermarkets, Inc.

v. United Food & Commercial Workers Union, 321 F.3d 251 (1st Cir.

2003), we held that the question of whether three grievances being

arbitrated separately should be consolidated into a single

arbitration was a "procedural matter" that was presumptively for

the arbitrator. Id. at 254. In Richard C. Young & Co. v.

Leventhal, 389 F.3d 1 (1st Cir. 2004), we held that a forum-

selection clause in an arbitration agreement was likewise for the

arbitrator, as a "procedural question." Id. at 4-5.

The district court's holding in its two orders

necessarily relied on two distinct points: (1) that Allied's demand

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for arbitration was untimely because it failed to abide by the

sixty-day limitations period specified in the contract itself, and

(2) that Allied waived its right to arbitration by not filing for

arbitration during and after the EEOC proceeding. We address these

two points in turn, finding that the contractual timeliness issue

is for the arbitrator but that the issue of waiver by conduct is

for the court.

Contractual Time Limitation

The arbitration clause in the contract at issue states:

"Arbitration under this section must be initiated within sixty days

of the action, inaction, or occurrence about which the party

initiating the arbitration is complaining." The district court's

conclusion that Allied's motion to stay proceedings was untimely

rested, in part, on interpretation of this language. The court

held that Allied had only sixty days from the conclusion of the

EEOC proceedings in which to demand arbitration. We hold that the

court erred in itself interpreting the contractual time limit

clause and applying it to Allied.

Under Howsam, which itself dealt with a time limit

provision, this is the sort of procedural prerequisite that is

presumed to be for the arbitrator. See Howsam, 537 U.S. at 84-85;

see also John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 556-

59 (1964) (issue of whether party failed to abide by procedural

prerequisites to arbitration, including requirement that notice of

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any grievance be given within four weeks, was for arbitrator and

not court). While the time limit in Howsam was in the arbitrator's

own rules rather than in the contract itself, this makes no

difference.8 The arbitrator might be expected to have comparative

expertise in determining the meaning of these sorts of contractual

limitations provisions in light of the background norms in this

employment area. And as in Wiley, consideration of this kind of

procedural provision may entangle the court in issues that go

properly to the merits of the dispute, which are for the

arbitrator. See Wiley, 376 U.S. at 557. The presumption that the

time limitation clause is for the arbitrator is not overcome by any

of the language in the contract.

Judicially Found Waiver

The court's holding also rested implicitly on broader

notions of judicially implied waiver. The argument for waiver in

this case is essentially that Allied's participation in the EEOC

proceedings initiated by Marie without Allied having demanded

arbitration during or after those proceedings constituted conduct

8
Indeed, the rule that contractual limitations were
presumptively for the arbitrator was the clear majority rule even
before Howsam and Green Tree. See, e.g., Shearson Lehman Hutton,
Inc. v. Wagoner, 944 F.2d 114, 121 (2d Cir. 1991) ("[W]e stated
emphatically that any limitations defense--whether stemming from
the arbitration agreement, arbitration association rule, or state
statute--is an issue to be addressed by the arbitrators."); 2 I. R.
Macneil et al., Federal Arbitration Law §§ 21.2.1.2, 21.2.2 (1994)
("[G]enerally the effect of an express time limit for arbitration
will be decided by the arbitrators.").

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inconsistent with the future desire to arbitrate its claims. See,

e.g., Menorah Ins. Co. v. INX Reinsurance Corp., 72 F.3d 218, 220-

21 (1st Cir. 1995); 2 I. R. Macneil et al., Federal Arbitration Law

§ 21.3.1 (1994). This court has a long history of deciding such

waiver claims itself; invariably, these cases involve the inquiry

into whether, by choosing or allowing the litigation of its claims

before a court rather than an arbitrator, a party has waived its

right to arbitrate. See, e.g., Creative Solutions Group, Inc. v.

Pentzer Corp., 252 F.3d 28, 32-34 (1st Cir. 2001); Navieros Inter-

Americanos, S.A. v. M/V Vasilia Express, 120 F.3d 304, 316 (1st

Cir. 1997); Menorah, 72 F.3d at 221-22; Sevinor v. Merrill Lynch,

Pierce, Fenner & Smith, Inc., 807 F.2d 16, 19 (1st Cir. 1986);

Jones Motor Co. v. Chauffeurs, Teamsters & Helpers Local Union No.

633 of N.H., 671 F.2d 38, 42-44 (1st Cir. 1982). Further, in

Menorah and Jones Motor Co., we held explicitly that the issue of

waiver, at least where the alleged waiver was due to litigation-

related activity, was presumptively for the judge and not the

arbitrator. See Menorah, 72 F.3d at 222; Jones Motor Co., 671 F.2d

at 43. This was in accord with the overwhelming weight of pre-

Howsam authority, which held that waiver due to litigation conduct

was generally for the court and not for the arbitrator. See

generally 2 I. R. Macneil et al., Federal Arbitration Law § 21.3

(1994).

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 Few courts have had occasion to consider the impact of

Howsam and Green Tree on the doctrine of waiver of arbitration by

conduct, and they have disagreed. The Eight Circuit has held, with

little discussion, that Howsam and Green Tree indicate that waiver

is now presumptively an issue for the arbitrator, and not for the

courts, at least where the conduct allegedly constituting waiver is

due to litigation in some other court. See Nat'l Am. Ins. Co. v.

Transamerica Occidental Life Ins. Co., 328 F.3d 462, 466 (8th Cir.

2003); see also Bellevue Drug Co. v. Advance PCS, 333 F. Supp. 2d

318, 324 (E.D. Pa. 2004) (relying on Howsam for the proposition

that "it appears that . . . the issue of whether the defendant, by

litigating in this Court the present case, has waived the right to

demand arbitration should properly be presented in the first

instance to the arbitrator"). The Transamerica court cited to

language in Howsam stating that "the presumption is that the

arbitrator should decide 'allegation[s] of waiver, delay, or a like

defense to arbitrability.'" Howsam, 537 U.S. at 84 (quoting Moses

H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25

(1983) (alteration in Howsam)).

By contrast, a panel of the Fifth Circuit has held that

the issue of waiver by conduct is for the court, and not for the

arbitrator, in situations where the alleged waiver occurred due to

conduct before the district court. See Tristar Fin. Ins. Agency,

Inc. v. Equicredit Corp. of Am., 97 Fed. Appx. 462, 464 (5th Cir.

-22-
2004); see also Carbajal v. Household Bank, FSB, No. 00-C-0626,

2003 WL 22159473, at *9 (N.D. Ill. Sept. 18, 2003). This was

particularly so given the court's comparative expertise. See

Tristar, 97 Fed. Appx. at 464.

In a stream of recent cases, the First Circuit has

continued to decide waiver questions due to litigation-related

activities without discussing the impact of Howsam, most likely

because no party raised the issue. See In re Citigroup, Inc., 376

F.3d 23, 26-29 (1st Cir. 2004); Rankin v. Allstate Ins. Co., 336

F.3d 8, 12-14 (1st Cir. 2003); Restoration Pres. Masonry, Inc. v.

Grove Europe Ltd., 325 F.3d 54, 60-62 (1st Cir. 2003). It has been

raised here.

We start our analysis of whether waiver by conduct in

this context is a decision for the court or for the arbitrator by

noting that textually under the FAA, a court is only permitted to

stay a court action pending arbitration if "the applicant for the

stay is not in default in proceeding with such arbitration." 9

U.S.C. § 3 (emphasis added). A "default" has generally been viewed

by courts as including a "waiver." See, e.g., Patten Grading &

Paving, Inc. v. Skanska USA Building, Inc., 380 F.3d 200, 204-05

(4th Cir. 2004); Ivax Corp. v. B. Braun of Am., Inc., 286 F.3d

1309, 1316 n.17 (11th Cir. 2002); MicroStrategy, Inc. v. Lauricia,

268 F.3d 244, 249 (4th Cir. 2001); County of Middlesex v. Gevyn

Constr. Corp., 450 F.2d 53, 56 n.2 (1st Cir. 1971) (only waiver due

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to the pursuit of legal remedy inconsistent with arbitration is a

"default" under 9 U.S.C. § 3). This language would seem to place

a statutory command on courts, in cases where a stay is sought, to

decide the waiver issue themselves. It is true that the same

language does not appear in section 4, the section dealing with

attempts to compel arbitration, 9 U.S.C. § 4, but the Supreme Court

has cautioned us to interpret sections 3 and 4 of the FAA together.

See Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395,

403-04 (1967); see also Doctor's Assocs., Inc. v. Distajo, 66 F.3d

438, 456-57 (2d Cir. 1995). At any rate, Allied is moving for a

stay of Marie's lawsuit against it under section 3.

Howsam also relies heavily on the Revised Uniform

Arbitration Act of 2000 ("RUAA"). The RUAA, in turn, as quoted by

the Howsam Court, establishes that procedural issues are generally

for the arbitrator and substantive issues generally for the court.

See RUAA § 6, cmt. 2, 7 U.L.A. 14-15 (Supp. 2004). Another comment

in the same section of the RUAA treats waiver as an issue for the

court: "Waiver is one area where courts, rather than arbitrators,

often make the decision as to enforceability of an arbitration

clause." RUAA § 6, cmt. 5, 7 U.L.A. 16 (Supp. 2004).

As expressed in the commentary to the RUAA and elsewhere,

there are important policy reasons why a court and not an

arbitrator should decide waiver issues, at least where the waiver

-- as has generally been true in our cases -- is due to litigation-

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related activity. Where the alleged waiver arises out of conduct

within the very same litigation in which the party attempts to

compel arbitration or stay proceedings, then the district court has

power to control the course of proceedings before it and to correct

abuses of those proceedings. See Jones Motor Co., 671 F.2d at 43;

Doctor's Assocs., 66 F.3d at 456 & n.12.

Also, the comparative expertise considerations stressed

in Howsam and Green Tree argue for judges to decide this issue.

See Howsam, 537 U.S. at 85; Green Tree, 539 U.S. at 452-53. Judges

are well-trained to recognize abusive forum shopping. See Tristar,

97 Fed. Appx. at 464; Bell v. Cendant Corp., 293 F.3d 563, 569 (2d.

Cir. 2002); Jones Motor Co., 671 F.2d at 43. As well, the inquiry

heavily implicates "judicial procedures," which Green Tree suggests

should be an important factor in presuming that an issue is for the

court. See Green Tree, 539 U.S. at 452-53 (emphasis added).

Further, the procedural waiver issue is not likely to be

intertwined with the merits of the dispute. See RUAA § 6 cmt. 5,

7 U.L.A. 16 (Supp. 2004); see also Wiley, 376 U.S. at 557-58; Prima

Paint Corp., 388 U.S. at 403-04.

Finally, sending waiver claims to the arbitrator would be

exceptionally inefficient. A waiver defense is raised by one party

to a lawsuit in response to another party's motion to compel

arbitration or stay judicial proceedings on the basis of an

arbitration agreement signed by the parties. If the arbitrator

-25-
were to find that the defendant had waived its right to arbitrate,

then the case would inevitably end up back before the district

court with the plaintiff again pressing his claims. The case would

have bounced back and forth between tribunals without making any

progress. See 2 I. R. Macneil et al., Federal Arbitration Law §

21.3 (1994); RUAA § 6 cmt. 5, 7 U.L.A. 16 (Supp. 2004).

This is different in kind from the arbitrator's normal

resolution of a gateway issue: normally, the resolution of such an

issue would bar not only arbitration but any sort of litigation on

the issues by either side. Thus, allowing courts to decide waiver

issues -- at least when due to litigation-related activity --

furthers a key purpose of the FAA: to permit speedy resolution of

disputes. See, e.g., Dean Witter Reynolds, Inc. v. Byrd, 470 U.S.

213, 218-20 (1985); Moses H. Cone Mem'l Hosp., 460 U.S. at 22-23;

see also Menorah Ins. Co., 72 F.3d at 222 (observing in context of

international, non-FAA arbitration case that "[a]rbitration clauses

were not meant to be another weapon in the arsenal for imposing

delay and costs in the dispute resolution process"). Moreover, the

Howsam and Green Tree rules exist partly "to avoid . . . delay."

Shaw's Supermarkets, Inc., 321 F.3d at 255. We hold that the

Supreme Court in Howsam and Green Tree did not intend to disturb

the traditional rule that waiver by conduct, at least where due to

-26-
litigation-related activity, is presumptively an issue for the

court.9

The waiver here is somewhat unusual in that the claim is

of litigation activity before the EEOC that is inconsistent with a

right to arbitrate, as opposed to activity before a court. But

this makes no difference. Courts are still well suited to

determine the sort of forum-shopping and procedural issues that are

likely to arise in litigation before the EEOC, and sending the

waiver issue to the arbitrator would still be inefficient. The

proper presumption in this case is that the waiver issue is for the

court and not the arbitrator.

Allied, seeking reversal on any available ground, argues

that this presumption is overcome because of specific language in

the arbitration agreement. There is no merit to Allied's

contention.10 A shifting of the issue to the arbitrator will only

be found where there is "clear and unmistakable evidence" of such

an intent in the arbitration agreement. No such evidence exists

9
The conduct allegedly constituting waiver in a given case
could conceivably be non-litigation-related, although in practice
virtually all cases have involved litigation-related waiver. We do
not here discuss the proper presumptive division of labor as
between courts and arbitrators for non-litigation-related waiver
claims or for other doctrines that are sometimes (erroneously)
referred to as waiver, such as laches.
10
We are not sure that waiver can, in all cases, be contracted
away from the court's competence at all. The "default" language in
Section 3 of the FAA, which as we noted includes waiver, perhaps
gives courts a duty, which cannot be shifted by contract between
the parties, to determine whether waiver has occurred.

-27-
here. First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944

(1995) (quoting AT&T Techs., Inc. v. Communications Workers of Am.,

475 U.S. 643, 649 (1986) (alterations omitted)). The standard in

First Options is meant to be a high one, and the normal

presumptions in favor of arbitration do not apply. See, e.g.,

Coady v Ashcraft & Gerel, 223 F.3d 1, 9-10 (1st Cir. 2000).

Allied focuses on the following language in the

agreement: "Employer and employee agree to submit to final and

binding arbitration any and all disputes, claims (whether in tort,

contract, statutory, or otherwise), and disagreements concerning

the interpretation or application of this Agreement . . . including

the arbitrability of any such controversy or claim . . . ."

(emphasis added). Specifically, Allied focuses on the clause

stating that questions of "arbitrability" are for the arbitrator.

"Arbitrability" itself encompasses a variety of possible meanings,

but the most obvious meaning focuses on certain substantive issues,

and particularly the question of whether a particular kind of

dispute at issue falls within the scope of the arbitration clause.

Most cases that discuss arbitrability focus on these substantive

issues. See, e.g., First Options, 514 U.S. at 942; AT&T, 475 U.S.

at 645; Coady, 223 F.3d at 9; see also Johnson v. Polaris Sales,

Inc., 257 F. Supp. 2d 300, 308-09 (D. Me. 2003) (interpreting

"arbitrability" language in arbitration agreement to throw issues

of substantive scope to the arbitrator); 1 Domke on Commercial

-28-
Arbitration § 15 (3d ed. 2003) (discussing arbitrability question

as an issue of the scope of the arbitration agreement). The

context of the agreement suggests that this sort of substantive

meaning is intended for the term "arbitrability" here; the

reference to "arbitrability" is surrounded by references to which

types of claims should be arbitrated and which should not be. We

cannot say that the use of the term here evinces a clear and

unmistakable intent to have waiver issues decided by the

arbitrator. There are no references to waiver or similar terms

anywhere in the arbitration agreement. Neither party should be

forced to arbitrate the issue of waiver by conduct without a

clearer indication in the agreement that they have agreed to do so.

The issue of who would decide such a question is an "arcane" one

that employees are unlikely to have considered unless clearly

spelled out by the employer. See First Options, 514 U.S. at 945.

We hold that the question of waiver of Allied's right to

arbitrate due to its participation in EEOC proceedings is properly

for the judge, and we turn now to the merits of that question.

B. Waiver due to EEOC proceedings

Marie urges us to find waiver both from the fact that

Allied failed to file for arbitration during the pendency of the

EEOC investigation and from the fact that it failed to file for

arbitration after the EEOC proceeding had concluded with the EEOC's

finding of no violation but before Marie had brought her private

-29-
civil suit in federal district court. At least two elements of

waiver by conduct that this circuit has identified are (1) undue

delay in bringing arbitration that is inconsistent with the desire

to arbitrate and (2) prejudice to the other party from that delay.

See Rankin v. Allstate Ins. Co., 336 F.3d 8, 12 (1st Cir. 2003);

Menorah, 72 F.3d at 221-22. Since, in this case, there was no

undue delay, we need not reach the prejudice issue.

The argument that waiver occurred during the pendency of

the EEOC proceedings runs contrary to circuit precedent. Brennan

v. King, 139 F.3d 258, 263-64 (1st Cir. 1998), found no waiver

where an employer failed to raise its right to arbitrate with the

EEOC during the pendency of EEOC proceedings. As well, since

Brennan, the Supreme Court has held that an employer cannot stop

the EEOC, a third party, from bringing a public enforcement action

against an employer by invoking an arbitration agreement between

the employer and the relevant employee. See EEOC v. Waffle House,

Inc., 534 U.S. 279, 297-98 (2002). The EEOC is a nonparty to the

arbitration agreement and therefore cannot be bound by it. See id.

at 294. The same logic applies to a preliminary EEOC

investigation, which also cannot be halted by an arbitration

agreement between the complaining employee and her employer.

If the EEOC's investigation of an employer cannot be

stopped by invoking an arbitration agreement, then forcing the

employee and employer to begin an arbitration proceeding during the

-30-
pendency of that investigation will automatically result in two

adjudications involving the same issue at the same time: (1) the

EEOC investigation of the employer at the employee's urging and (2)

the arbitration between the employer and the employee that the

employer initiated. This is quite inefficient.11 Further, the EEOC

investigation might definitively resolve the claim: the employee

might receive a notice that the EEOC did not wish to start an

enforcement action, along with a rationale for this decision and a

right to sue letter, and determine that she did not want to sue

after all. That was not Marie's reaction to her letter, but it may

well be the reaction of many employees. And if this were the

reaction, then there would be no need for employer-employee

arbitration at all.

Thus, forcing employers to bring arbitration during the

pendency of EEOC investigations is a waste of resources and is

contrary to the general purposes of the FAA.12 See, e.g., Dean

Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 218-20 (1985); Sink v.

11
This is true even if one party sought to stay the arbitration
pending EEOC proceedings, forcing the expenditure of resources to
obtain a stay and running a risk that the other party will oppose
or that the arbitrator will decline the stay.
12
We note as well that there is little risk of abusive forum
shopping by the employer in this kind of situation. Since, under
Waffle House, the EEOC cannot be stopped from investigating and
litigating against the employer by virtue of an arbitration clause,
even if the employer initiates arbitration only when things turn
badly for it before the EEOC, the EEOC will not be hindered in its
pursuit of the employer.

-31-
Aden Enters., 352 F.3d 1197, 1201 (9th Cir. 2003). It is also

contrary to the scheme established in the federal employment

discrimination statutes, which generally is designed to avoid

inefficient, duplicative proceedings. See 42 U.S.C. § 2000e-

5(f)(1) (employee's private civil lawsuit against employer may only

be filed after EEOC has investigated and issued a right to sue

letter; no private civil lawsuit may be initiated during the 180-

day period allotted for EEOC investigations or after the EEOC has

decided to bring a public enforcement action); see also Gilmer v.

Interstate/Johnson Lane Corp., 500 U.S. 20, 27 (1991) (explaining

similar scheme under 29 U.S.C. § 626, the Age Discrimination in

Employment Act).13

We reaffirm that an employer cannot waive its right to

arbitration by failing to raise the arbitration defense with the

EEOC or by failing to initiate arbitration during the pendency of

the EEOC proceedings. The employer's failure to initiate

arbitration during the pendency of such proceedings merely reflects

a desire to avoid inefficiency and is not action inconsistent with

a desire to arbitrate. Our holding here is in accord with the few

cases elsewhere to discuss this issue. See, e.g., Brown v. ITT

Consumer Fin. Corp., 211 F.3d 1217, 1222-23 (11th Cir. 2000);

13
We say nothing here about whether or when an employer has a
right to initiate an arbitration during the course of an EEOC
investigation. We hold only that an employer should not be forced
to file for arbitration during an EEOC investigation by finding a
waiver of its right to arbitrate if it does not make such a filing.

-32-
Gonzalez v. GE Group Adm'rs, Inc., 321 F. Supp. 2d 165, 171-72 (D.

Mass. 2004).

The same considerations apply after an EEOC investigation

has concluded with a finding of no violation. We will not force

the employer to make a wasteful, preemptive decision to arbitrate

when it has no idea whether a dispute will still exist. As the

Brown court stated, in general there is no need for the non-

complaining party, the employer, to make a "pre-suit demand for

arbitration." Brown, 211 F.3d at 1223.

Marie has rightly made no claim here that Allied's

actions after Marie's lawsuit was filed constitute waiver of

Allied's right to arbitrate. The motion to compel arbitration and

stay proceedings was made in a reasonably prompt fashion after the

lawsuit began.

IV.

The decision of the district court is reversed, and the

case is remanded for proceedings consistent with this opinion.

Since Allied has not waived its right to arbitrate, the issue of

timeliness under the sixty-day contractual provision is for the

arbitrator, and Marie has raised no other issues on appeal,14 an

14
Marie has made no argument, for example, that the substantive
scope of the arbitration provision between her and Allied does not
include all of the claims that she has raised. In fact, in her
appellate brief on the merits, Marie concedes that all claims that
she has raised to the district court are within the substantive
scope of the arbitration clause.

-33-
order should enter compelling arbitration of all claims that Marie

has raised and either staying or dismissing Marie's judicial

proceedings in conformance with the FAA. See Bercovitch v. Baldwin

Sch., Inc., 133 F.3d 141, 156 & n.21 (1st Cir. 1998) ("[A] court

may dismiss, rather than stay, a case [under 9 U.S.C. § 3] when all

of the issues before the court are arbitrable.").

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