Gilbert v. Donahoe

• Decision Date: 30 April 2014
• Docket Number: No. 13–40328.,13–40328.
• Citation: 751 F.3d 303
• Parties: Sandra Kay GILBERT, Plaintiff–Appellant, v. Patrick R. DONAHOE, Postmaster General, United States Postal Service, Defendant–Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

751 F.3d 303

Sandra Kay GILBERT, Plaintiff–Appellant,

v.Patrick R. DONAHOE, Postmaster General, United States Postal Service, Defendant–Appellee.

No. 13–40328.

United States Court of Appeals,Fifth Circuit.

April 30, 2014.

Rebecca L. Fisher, Attorney, Rebecca L. Fisher & Associates, Waco, TX, for Plaintiff–Appellant.

Robert Austin Wells, Esq., Assistant U.S. Attorney, U.S. Attorney's Office, Tyler, TX, for Defendant–Appellee.

Appeal from the United States District Court for the Eastern District of Texas.

Before REAVLEY, PRADO, and OWEN, Circuit Judges.

PRISCILLA R. OWEN, Circuit Judge:

Sandra Kay Gilbert appeals the district court's dismissal of her complaint for lack of subject matter jurisdiction. We conclude that the collective bargaining agreement between the union of which Gilbert was a member and the United States Postal Service did not clearly and unmistakably require Gilbert to resolve claims arising under the Family and Medical Leave Act through arbitration. However, we agree with the district court that the agreement's incorporation of the Rehabilitation Act was sufficiently clear and unmistakable to waive Gilbert's right to bring claims under that statute in federal court. We further conclude that Gilbert no longer has standing to seek injunctive relief, since she has retired. Accordingly, we affirm in part, reverse in part, and remand.

I

Plaintiff Sandra Kay Gilbert is a former employee of the United States Postal Service (USPS), and this case arises out of events that occurred during her employment. Following a “due process” interview regarding her practice of taking leave during USPS's busy seasons, Gilbert initiated an Equal Employment Opportunity (EEO) complaint, alleging that the interview constituted age and disability discrimination. Shortly thereafter, Gilbert sought paid sick leave in order to care for her husband (the first leave request). USPS temporarily denied Gilbert's claim. Although she was eventually granted paid leave, Gilbert filed an internal grievance with USPS according to the terms set forth in the collective bargaining agreement (CBA) between the American Postal Workers Union (Union) and USPS. She also amended her EEO complaint, claiming that the interview and the temporary denial of paid leave constituted retaliation. USPS's regional postmaster denied Gilbert's grievance, finding that management had acted in accordance with its handbooks and the CBA. USPS's EEO Services Analyst also dismissed Gilbert's complaint on the ground that the allegations of discrimination were moot and that Gilbert had failed to state a claim.

After these decisions were issued, Gilbert filed suit against Patrick R. Donahoe, in his capacity as USPS Postmaster General. Gilbert alleged that USPS interfered with her rights under the Family and Medical Leave Act (FMLA). Concurrently, the Union, acting on Gilbert's behalf, appealed the local postmaster's dismissal of Gilbert's grievance to an arbitrator, in accordance with the procedures in the CBA. Gilbert also appealed the EEO decision to the Equal Employment Opportunity Commission (EEOC). The EEOC dismissed the appeal, however, because Gilbert had filed suit.

Donahoe moved to dismiss Gilbert's lawsuit on the ground that the district court lacked subject matter jurisdiction. Donahoe reasoned that, because the CBA provides that its mandatory grievance procedure is the exclusive method of resolving claims under the FMLA, Gilbert could not bring her claims in federal court. While Donahoe's motion was pending, another leave dispute arose. Gilbert sought paid sick leave for two days and presented a physician's note to her supervisor (the second leave request). Finding the note insufficiently specific under the terms of the CBA, Gilbert's supervisor designated her absence as “leave without pay.”

After this incident, Gilbert amended her complaint to add claims under the Rehabilitation Act. Donahoe then filed an amended motion to dismiss, asserting the same jurisdictional arguments as before and additionally contending that Gilbert had failed to state a claim for which relief could be granted. The district court ordered the parties to conduct discovery prior to ruling on Donahoe's motion to dismiss. Following discovery, Donahoe filed another amended motion to dismiss, or alternatively, for summary judgment. This motion offered various grounds for dismissal and summary judgment, but did not re-assert the initial argument that the CBA's grievance procedure deprived the court of subject matter jurisdiction. Nonetheless, the district court issued a Notice of Intent to Dismiss, requesting that the parties brief the issue of whether the CBA precluded subject matter jurisdiction. Following briefing, the district court dismissed the case for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). The court concluded that the CBA contains a mandatory grievance procedure and clearly and unmistakably requires Gilbert to resolve her statutory claims through that procedure.

Shortly after the dismissal, Gilbert retired from USPS. Nonetheless, she timely appealed the court's order. In his brief, Donahoe states that he is “abandon[ing] the specific grounds underlying the [district court's] dismissal.” He contends, however, that this court should affirm the dismissal because subject matter jurisdiction is lacking for other reasons, Gilbert has failed to state a claim, and there is no genuine dispute as to a material fact.

II

We have held that a district court lacks subject matter jurisdiction over a case and should dismiss it pursuant to Federal Rule of Civil Procedure 12(b)(1) when the parties' dispute is subject to binding arbitration.¹ We review such a dismissal “de novo, using the same standard as the district court.” ² Under that standard, “[t]he burden of proof for a 12(b)(1) motion to dismiss is on the party asserting jurisdiction.” ³ In order to bear that burden, the party “must prove by a preponderance of the evidence that the court has jurisdiction based on the complaint and evidence.” ⁴ However, “a motion to dismiss for lack of subject matter jurisdiction should be granted only if it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle plaintiff to relief.” ⁵ Although Donahoe has abandoned the view that the CBA deprives the district court of jurisdiction, we must examine the issue, since parties may not agree to confer subject matter jurisdiction that Congress has withheld, and an appellee's concession is not binding on this court.⁶

III

In 14 Penn Plaza LLC v. Pyett,⁷ the Supreme Court held that, in the absence of statutory language to the contrary, a union may agree with an employer to submit employees' statutory claims exclusively to arbitration or another non-judicial grievance procedure.⁸ In order for that agreement to be enforceable, however, the CBA must “clearly and unmistakably require [ ] union members” to submit their statutory claims to those procedures. ⁹ In Penn Plaza, for instance, the CBA contained the following clause:

There shall be no discrimination against any present or future employee by reason of race, creed, ... or any other characteristic protected by law, including, but not limited to, claims made pursuant to ... the Age Discrimination in Employment Act [ADEA], the New York State Human Rights Law, ... or any other similar laws, rules, or regulations. All such claims shall be subject to the grievance and arbitration procedures ... as the sole and exclusive remedy for violations.¹⁰The Supreme Court determined that this provision was likely sufficiently clear and unmistakable to bar employees from bringing their ADEA and state-law claims in federal court.¹¹ In reaching this conclusion, the Court distinguished the provision from those at issue in prior cases. ¹² In Alexander v. Gardner–Denver Co.,¹³ for instance, the CBA provided a grievance procedure for all “ ‘differences aris[ing] between the Company and the Union as to the meaning and application of the provisions of this Agreement’ and ‘any trouble aris[ing] in the plant.’ ” ¹⁴ Similarly, in Barrentine v. Arkansas–Best Freight System, Inc.,¹⁵ the CBA provided:

[T]here shall be no strikes, lockouts, tieups, or legal proceedings without first using all possible means of settlement as provided for in this Agreement and in the National Agreement, if applicable, of any controversy which might arise. Disputes shall first be taken up between the Employer and the Local Union involved. Failing adjustment by these parties, [the dispute shall be resolved by a State or Multiple State Committee].¹⁶

Reviewing these cases, the Penn Plaza Court held that these provisions “did not expressly reference the statutory claim at issue” and therefore did not prevent the employees from bringing those claims in federal court. ¹⁷

The Court also implicitly concluded that the arbitration provision was distinct from that at issue in Wright v. Universal Maritime Service Corp.¹⁸ The CBA in that case provided that “[m]atters under dispute which cannot be promptly settled between the Local and an individual Employer shall ... be referred” to a specific grievance process and that “[t]he Union agrees that this Agreement is intended to cover all matters affecting wages, hours, and other terms and conditions of employment....” ¹⁹ Holding that these provisions did not bar employees from bringing claims under the Americans with Disabilities Act (ADA) in federal court, Wright observed, “[The CBA's] arbitration clause is very general, providing for arbitration of ‘[m]atters under dispute’ which could be understood to mean matters in dispute under the contract. And the remainder of the contract contains no explicit incorporation of statutory antidiscrimination requirements.” ²⁰

We applied Penn Plaza 's “clear and unmistakable” test in Ibarra v. United Parcel Service.²¹ In that case, one provision of the CBA provided that “any...