E.E.O.C. v. Luce, Forward, Hamilton & Scripps

• Citation: 303 F.3d 994
• Decision Date: 03 September 2002
• Docket Number: No. 01-55321.,No. 00-57222.,00-57222.,01-55321.
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v. LUCE, FORWARD, HAMILTON, & SCRIPPS, Defendant-Appellant. Equal Employment Opportunity Commission, Plaintiff-Appellant, v. Luce, Forward, Hamilton, & Scripps, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

303 F.3d 994

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v. LUCE, FORWARD, HAMILTON, & SCRIPPS, Defendant-Appellant.

Equal Employment Opportunity Commission, Plaintiff-Appellant, v. Luce, Forward, Hamilton, & Scripps, Defendant-Appellee.

No. 00-57222.

No. 01-55321.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 1, 2002.

Filed September 3, 2002.

COPYRIGHT MATERIAL OMITTED

Charles A. Bird, Kelly Capen Douglas, Luce, Forward, Hamilton & Scripps LLP, San Diego, CA, for the defendant-appellant-appellee.

Robert F. Walker, Paul, Hastings, Janofsky & Walker LLP, Los Angeles, CA, defendant-appellant-appellee.

Dori K. Bernstein, Equal Employment Opportunity Commission, Washington, DC, for the plaintiff-appellee-appellant.

Appeal from the United States District Court for the Central District of California; Florence Marie Cooper, District Judge, Presiding. D.C. No. CV-00-01322-FMC.

Before PREGERSON and TROTT, Circuit Judges, and FITZGERALD, District Judge.^*

OPINION

TROTT, Circuit Judge.

The law firm Luce, Forward, Hamilton & Scripps LLP ("Luce Forward") refused to hire Donald Scott Lagatree ("Lagatree") as a full-time legal secretary because he would not sign an agreement to arbitrate claims arising from his employment. On behalf of Lagatree, the Equal Employment Opportunity Commission ("EEOC") sued Luce Forward for retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3, the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12203(b), the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 623(d), and the Equal Pay Act of 1963 ("EPA"), 29 U.S.C. § 215(a)(3). The EEOC sought make-whole relief for Lagatree and a permanent injunction forbidding Luce Forward from requiring that employees sign arbitration agreements as a condition of employment.

The district court refused to award make-whole relief and rejected EEOC's request for an injunction based on the ADA, the ADEA, or the EPA. Relying on Duffield v. Robertson Stephens & Co., 144 F.3d 1182 (9th Cir.1998), however, the district court enjoined Luce Forward from requiring applicants to arbitrate Title VII claims and from enforcing existing agreements to arbitrate those claims.

We have jurisdiction over Luce Forward's timely appeal pursuant to 28 U.S.C. § 1291. In Circuit City Stores v. Adams, 532 U.S. 105, 121 S.Ct. 1302, 149 L.Ed.2d 234 (2001), the Supreme Court implicitly overruled Duffield. Accordingly, we reverse the district court and hold that employers may require employees to sign agreements to arbitrate Title VII claims as a condition of their employment. We vacate the district court's permanent injunction against Luce Forward, which relied exclusively on Duffield for the contrary proposition. We additionally reject the EEOC's retaliation theory. Lagatree did not engage in a protected activity when he refused to sign the Luce Forward arbitration agreement, and consequently, Luce Forward did not retaliate by refusing to hire him.

BACKGROUND

Lagatree applied for a position as a full-time legal secretary with Luce Forward in September 1997. Impressed with Lagatree's credentials and experience, Luce Forward extended to him a conditional offer of employment. On his first day of work, Luce Forward presented Lagatree with its standard offer letter, which set forth the terms and conditions of employment. The letter specified Lagatree's salary and benefits. His employment was at-will; "either[he] or the firm [could] terminate [his] employment at any time, with or without cause." The offer letter also included an arbitration provision requiring Lagatree to submit all "claims arising from or related to his employment" to binding arbitration. In its entirety, the Luce Forward arbitration agreement provided:

In the event of any dispute or claim between you and the firm (including employees, partners, agents, successors and assigns), including but not limited to claims arising from or related to your employment or the termination of your employment, we jointly agree to submit all such disputes or claims to confidential binding arbitration, under the Federal Arbitration Act. Any arbitration must be initiated within 180 days after the dispute or claim first arose, and will be heard before a retired State or Federal judge in the county containing the firm office in which you were last employed. The law of the State in which you last worked will apply.

Lagatree objected to the arbitration provision. He told Deborah Sweeney ("Sweeney"), a Luce Forward personnel employee, that he "couldn't sign ... the arbitration agreement" because "it was unfair." In his deposition, Lagatree clarified that he would not sign an arbitration agreement under an at-will employment situation because he believed he needed to keep in place his "civil liberties, including the right to a jury trial and redress of grievances through the government process." Sweeney then went to discuss the matter with Raymond W. Berry ("Berry"), the director of human resources at Luce Forward.

Lagatree worked for Luce Forward for two days without a contract while Luce Forward considered his vigorous objection to the arbitration provision. After those two days, Lagatree met with Berry and Sweeney. Lagatree asked whether Luce Forward "could strike" the arbitration provision from the offer letter. Berry responded that the arbitration agreement was a non-negotiable condition of employment at Luce Forward, and "if [Lagatree] didn't agree to ... signing that clause, then he would not be an employee of the firm." When Lagatree expressed his belief that "he didn't feel that it was right," Berry again "told him that[signing the arbitration provision] was the only way that he could stay — or become an employee of the firm." Initially, Lagatree agreed to sign the arbitration provision, but a short time later Lagatree refused to do so, and consequently, Luce Forward withdrew its job offer. It is undisputed that Luce Forward refused to hire Lagatree only because he would not sign the arbitration provision.

In February 1998, Lagatree sued Luce Forward in Los Angeles Superior Court accusing Luce Forward of wrongfully terminating his employment. Lagatree sought lost wages, damages for emotional distress, and punitive damages. The Superior Court granted Luce Forward's motion to dismiss, holding that Luce Forward did not unlawfully discharge Lagatree when he refused to sign a predispute arbitration agreement as a condition of employment. A California Court of Appeal affirmed, and the California Supreme Court denied review. Lagatree v. Luce, Forward, Hamilton & Scripps, 74 Cal. App.4th 1105, 88 Cal.Rptr.2d 664 (1999), review denied 2000 Cal. LEXIS 262, at *1 (Cal.2000).

While his state court suit was pending, Lagatree filed a complaint with the EEOC, alleging that he was wrongfully terminated for refusing to sign the Luce Forward arbitration provision. The EEOC sued Luce Forward on behalf of Lagatree and in the public interest, arguing that (1) Duffield forbade Luce Forward from requiring Lagatree to sign an arbitration agreement, and (2) by refusing to hire Lagatree, Luce Forward unlawfully retaliated against him for asserting his constitutional right to a jury trial. The EEOC sought make-whole relief for Lagatree, including "rightful place employment," back wages and benefits, and compensatory and punitive damages. The EEOC sought also a permanent injunction forbidding Luce Forward from engaging in unlawful retaliation and ordering Luce Forward to "desist from utilizing mandatory arbitration agreements."

The district court denied any award of damages on behalf of Lagatree. Considering itself bound by Duffield, however, the district court felt it was "required to issue an injunction prohibiting [Luce Forward] from requiring its employees to agree to arbitrate their Title VII claims as a condition of employment and from attempting to enforce any such previously executed agreements." The district court did not issue an injunction forbidding compulsory arbitration of ADA, ADEA or EPA claims. Nor did the district court expressly rule on the EEOC's retaliation theory. Luce Forward timely appealed the district court's injunction. The EEOC cross-appealed, seeking to enjoin Luce Forward from engaging in an "unlawful retaliatory practice by denying employment to any applicant... who refuses to waive his right to participate in statutorily protected [] proceedings."

STANDARD OF REVIEW

We review de novo the district court's grant of summary judgment. Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir.2000) (en banc).

DISCUSSION

I DUFFIELD

An employer may not discriminate against "an employee or applicant for employment because of such individual's race, color, religion, sex, or national origin," 42 U.S.C. § 2000e-2(a)(1) (Title VII), "disability," 42 U.S.C. § 12112(a)(ADA), or "age." 42 U.S.C. § 623(a)(1) (ADEA). The EPA makes it unlawful to pay lower wages on the basis of an employee's sex. 29 U.S.C. § 206(d)(1).

The Civil Rights Act of 1991 ("the Act") strengthened Title VII by making it easier to bring and to prove lawsuits and by expanding the available judicial remedies so that plaintiffs could receive full compensation for injuries resulting from discrimination. H.R. Rep. No. 102-40(I), at 30 (1991), reprinted in 1991 U.S.S.C.A.N. 694, 694-96. The Act also included a "polite bow to the popularity of alternative dispute resolution," as governed by the Federal Arbitration Act ("FAA"), 9 U.S.C. §§ 1-16. Pryner v. Tractor Supply Co., 109 F.3d 354, 363 (7th Cir.1997). Specifically, § 118 of the Act provided that "[w]here appropriate and to the extent authorized by law, the use of alternative means of dispute resolution, including ... arbitration is encouraged to resolve disputes arising under this chapter." Pub. L. No. 102-166, 105 Stat. 1071 § 118 reprinted in notes to 42 U.S.C. § 1981 ("Section 118"); Cf. 42 U.S.C. § 12212 (...