Ibarra v. United Parcel Serv.

• Decision Date: 13 September 2012
• Docket Number: No. 11–50714.,11–50714.
• Citation: 695 F.3d 354
• Parties: Amber IBARRA, Plaintiff–Appellant, v. UNITED PARCEL SERVICE, Defendant–Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

695 F.3d 354

Amber IBARRA, Plaintiff–Appellant,

v.UNITED PARCEL SERVICE, Defendant–Appellee.

No. 11–50714.

United States Court of Appeals, Fifth Circuit.

Sept. 13, 2012.

Holly B. Williams (argued), Williams Law Firm, P.C., Brian Carney, Midland, TX, for Plaintiff–Appellant.

John V. Jansonius (argued), Jackson Walker, L.L.P., Heather L. Peckham, Akin Gump Strauss Hauer & Feld, L.L.P., Dallas, TX, for Defendant–Appellee.

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

Before KING, HIGGINBOTHAM and HAYNES, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Amber Ibarra brought a Title VII sex discrimination claim against her former employer. The district court granted summary judgment for Ibarra's employer on the ground that the grievance procedure established in a collective bargaining agreement provided the exclusive remedy for Ibarra's Title VII claim. We vacate the district court's judgment and remand for further proceedings.

I.

Amber Ibarra worked as a package car driver for the United Parcel Service (“UPS”). UPS terminated Ibarra for “recklessness resulting in a serious accident” after she lost control of her van and struck a telephone pole while delivering packages. She received a traffic citation, and the UPS vehicle had to be towed.

Ibarra filed a grievance under her union's collective bargaining agreement (“CBA”) challenging her termination. In her grievance, she claimed that the decision to fire her was unjust but did not allege sex discrimination. According to procedures established in Article 51 of the CBA, Ibarra first had a local hearing, under union representation. Her discharge was upheld at the local hearing. The local hearing was followed by an evidentiary hearing before the Southern Regional Area Parcel Grievance Committee (“SRAPGC”), which unanimously denied her grievance and upheld her termination.¹

Ibarra then filed a charge of sex discrimination with the EEOC. She filed this Title VII action in the district court within ninety days of receiving a right to sue notice. UPS filed three motions for summary judgment.² The first alleged that Ibarra had not timely filed her complaint after receiving her right to sue notice from the EEOC. UPS later withdrew that motion. The second motion argued that UPS was entitled to summary judgment on two grounds: (1) Ibarra engaged in “serious misconduct” that was not discovered by UPS until Ibarra's deposition, and she was “foreclosed from claiming or receiving reinstatement, front pay, or backpay from the date her misconduct was discovered;” and (2) the grievance procedure established in the CBA provided Ibarra's exclusive remedy for her Title VII sex discrimination claim, and Ibarra “failed to exhaust that remedy by failing to assert discrimination by UPS in the grievance process.” UPS's third motion for summary judgment argued there was a lack of evidence supporting Ibarra's claim of sex-based disparate treatment. The district court agreed that Ibarra failed to pursue her exclusive remedy for her Title VII claim and granted summary judgment for UPS on that ground. It did not reach the merits of UPS's other summary judgment motions. Ibarra timely appealed.

II.

We review a grant of summary judgment de novo, applying the same standard as the district court.³ “Summary judgment is proper if the pleadings and evidence show there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.”⁴

III.

On appeal, Ibarra argues that the district court erred in two respects. First, she maintains that the district court erred in its finding that the collective bargaining agreement explicitly provides that statutory discrimination claims are subject to the grievance process. Second, she argues that UPS did not adequately plead the affirmative defense that the CBA provided the exclusive remedy for Ibarra's sex discrimination claim. We agree that the district court erred in its finding that the CBA's Article 51 grievance process is the exclusive remedy for Title VII claims brought by UPS employees like Ibarra, and we do not reach Ibarra's second argument.

A.

The grievance process established in the CBA forms the exclusive remedy for Ibarra's Title VII claim only if the CBA clearly and unmistakably waives Ibarra's right to pursue her Title VII claim in a judicial forum. The question whether the grievance process is Ibarra's exclusive remedy turns on the relationship between the Supreme Court's 1974 decision in Alexander v. Gardner–Denver and its more recent holding in 14 Penn Plaza LLC v. Pyett. In Gardner–Denver,⁵ the Supreme Court held that by resorting to an arbitrator for a discrimination claim brought pursuant to a collective bargaining agreement, an employee did not thereby waive her right to bring a Title VII claim in federal court.⁶ The crux of the Court's decision was its recognition that the employee had separate statutory and contractual rights.⁷ The Court explained: “In submitting his grievance to arbitration, an employee seeks to vindicate his contractual right under a collective-bargaining agreement. By contrast, in filing a lawsuit under Title VII, an employee asserts independent statutory rights accorded by Congress.” ⁸ The Court suggested that “[a]rbitral procedures ... make arbitration a comparatively inappropriate forum for the final resolution of rights created by Title VII.”⁹

Thirty-five years later, the Court in Penn Plaza¹⁰ drained force from Gardner–Denver's statements suggesting that arbitral procedures are inadequate to address statutory discrimination claims.¹¹ Relegating those statements to dicta,¹² the Court did not purport to overrule Gardner–Denver, holding only that “a collective-bargaining agreement that clearly and unmistakably requires union members to arbitrate [Age Discrimination in Employment Act (“ADEA”)] claims is enforceable as a matter of federal law.”¹³ That holding built on the Court's prior decision in Wright v. Universal Maritime Service Corp.,¹⁴ which held that the right to a federal judicial forum for federal employment discrimination claims “is of sufficient importance to be protected against less-than-explicit union waiver in a CBA.”¹⁵

B.

Turning to the CBA in this case, we ask whether it “clearly and unmistakably requires union members” to submit their Title VII claims to the grievance process established by the agreement.¹⁶ An answer requires a close look at two provisions, Article 51 and Article 36. Article 51 describes grievance procedures and defines a grievance as “any controversy, complaint, misunderstanding or dispute arising as to interpretation, application or observance of any of the provisions of this Agreement.” It provides that “any grievance, complaint, or dispute” shall be handled in the manner specified in the Article. The procedures culminate in submission of a grievance to an arbitrator through the Federal Mediation and Conciliation Service, but only if the grievance “cannot be satisfactorily settled by a majority decision of a panel of the [Southern Regional Area Parcel Grievance Committee] and Deadlock Panel.”

Article 36 is a nondiscrimination provision. It states:

The Employer and the Union agree not to discriminate against any individual with respect to hiring, compensation, terms or conditions of employment because of such individual's race, color, religion, sex, sexual orientation, national origin, physical disability[,] veteran status or age in violation of any federal or state law, or engage in any other discriminatory acts prohibited by law, nor will they limit, segregate or classify employees in any way to deprive any individual employees of employment opportunities because of race, color, religion, sex, national origin, physical disability, veteran status or age in violation of any federal or state law, or engage in any other discriminatory acts prohibited by law. This Article also covers employees with a qualified disability under the Americans with Disabilities Act.

Article 36 mentions no specific federal or state statutes and makes no reference to the grievance procedures set forth in Article 51. The CBA contains no express waiver of a judicial forum for claims brought pursuant to Title VII.

A closer look at the controlling Supreme Court precedent confirms that the language of Article 51 and Article 36 is insufficient to waive Ibarra's right to a judicial forum for statutory discrimination claims. The Penn Plaza collective bargaining agreement, which clearly and unmistakably waived union members right to pursue ADEA claims in a judicial forum, included a nondiscrimination provision that expressly provided for the arbitration of claims brought pursuant to the ADEA and other federal statutes.¹⁷ Like Article 36, the Penn Plaza provision stated that the employer would not discriminate against the employee on the basis of any characteristic protected by law.¹⁸ Unlike Article 36, the Penn Plaza provision explicitly incorporated “claims made pursuant to ... the Age Discrimination in Employment Act” and specified that such claims “shall be subject to the [CBA's] grievance and arbitration procedure ... as the sole and exclusive remedy for violations,” cross-referencing the relevant CBA articles.¹⁹ Indeed, the Penn Plaza respondents—who argued that arbitral forums could not adequatelyprotect statutory nondiscrimination rights—had “acknowledged on appeal that the CBA provision requiring arbitration of their federal antidiscrimination statutory claims ‘[was] sufficiently explicit’ in precluding their federal lawsuit.”²⁰

Despite the fact that the nondiscrimination provision in this case does not specifically identify Title VII or state that statutory discrimination claims shall be subject to the Article 51 grievance procedure, UPS argues that the CBA read as a whole waives Ibarra's right to bring her Title VII claim in a judicial forum because the language of Article 36 obligates the company to comply with federal...