Weeks v. Harden Mfg. Corp.

Decision Date22 May 2002
Docket NumberNo. 01-16638.,01-16638.
Citation291 F.3d 1307
PartiesAnthony WEEKS, Charles Willingham, Melissa Frye, Angela Gable, Jarir Jackson, Plaintiffs-Appellees, v. HARDEN MANUFACTURING CORP., Defendant-Appellant.
CourtU.S. Court of Appeals — Eleventh Circuit

Jonathan B. Lowe, Lowe, Mobley & Lowe, Haleyville, AL, Susan Salonimer Wagner, Frank S. James, III, Berkowitz, Lefkovits, Isom & Kushner, Birmingham, AL, for Defendant-Appellant.

Rocco Calamusa, Jr., Brian M. Clark, Dennis George Pantazis, Gordon, Silberman, Wiggins & Childs, P.C., Birmingham, AL, for Plaintiffs-Appellees.

Ann Elizabeth Reesman, McGuiness, Norris & Williams, LLP, Washington, DC, for Equal Advisory Council and Chamber of Commerce of U.S., Amici Curiae.

Appeal from the United States District Court for the Northern District of Alabama.

Before CARNES and FAY, Circuit Judges, and MARTIN*, District Judge.

MARTIN, District Judge:

In this interlocutory appeal of a retaliatory discharge case, the court is asked to determine whether an employee's refusal to agree to a compulsory arbitration provision regarding employment discrimination claims constitutes protected activity for the purposes of alleging a prima facie case of retaliation. We find that it does not. We therefore vacate in part the district court's order and remand for further proceedings consistent with this opinion.


The appellant, Harden Manufacturing Corporation ("Harden"), employed the appellees, Anthony Weeks, Charles Willingham, Melissa Frye, Angela Gable and Jarir Jackson (hereinafter "plaintiffs") at its facility in Haleyville, Alabama. On January 8, 1999, Harden issued new employee handbooks to the plaintiffs which included an arbitration provision. The arbitration provision mandated that all claims by a Harden employee arising out of his/her employment must be resolved through arbitration, including all "Title VII claims or actions, and all actions based upon any form of discrimination."1 Harden required all of its employees to agree to the arbitration provision as a condition of continued employment. The plaintiffs refused to agree to the new arbitration policy, and Harden terminated their employment on January 14, 1999.

After timely filing charges with the Equal Employment Opportunity Commission ("EEOC"), the plaintiffs filed suit on June 30, 2000 in the Northern District of Alabama. The complaint included five counts for relief, including claims for retaliation under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-3, the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 623(d), and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12203. Harden thereafter moved for judgment on the pleadings or in the alternative for summary judgment on all counts. In its motion, Harden admitted that it terminated the plaintiffs for refusing to sign the arbitration provision. However, Harden argued that the plaintiffs did not engage in statutorily protected conduct because they could not have reasonably believed that the mandatory arbitration provision was an unlawful employment practice. Based upon this, Harden took the position that the plaintiffs had failed to establish a prima facie case of retaliation.

The district court considered the motion as one for summary judgment and granted summary judgment to Harden on all claims except for the retaliation claims under the various employment discrimination statutes. The district court found that although the arbitration provision may have been lawful, the plaintiffs reasonably, albeit mistakenly, believed that the arbitration provision was unenforceable. The court therefore held that plaintiffs' refusal to sign the arbitration policy was protected activity and the discharge of the plaintiffs constituted actionable retaliation. In finding that the plaintiffs had a reasonable belief that arbitration provisions were unenforceable, the district court relied on the Ninth Circuit's decision in Duffield v. Robertson Stephens & Co., 144 F.3d 1182 (9th Cir.1998) and the EEOC's position that such provisions violate public policy. See EEOC Notice No. 915.002, Policy Statement on Mandatory Binding Arbitration of Employment Discrimination Disputes as a Condition of Employment (July 10, 1997). Harden thereafter moved to certify the issue for interlocutory appeal pursuant to 28 U.S.C. § 1292(b), which the district court granted. We granted the petition for review.


We review the district court's grant or denial of a motion for summary judgment de novo, viewing the record and drawing all reasonable inferences in the light most favorable to the non-moving party. See Patton v. Triad Guar. Ins. Corp., 277 F.3d 1294, 1296 (11th Cir.2002). The sole issue in this appeal is whether the plaintiffs had a reasonable belief that Harden engaged in an unlawful employment practice by requiring the plaintiffs to sign the agreement to arbitrate.

It is well established in this circuit that to successfully allege a prima facie retaliation claim under either Title VII, the ADEA or the ADA, a plaintiff must show that (1) she engaged in statutorily protected expression; (2) she suffered an adverse employment action; and (3) the adverse action was causally related to the protected expression. See Pipkins v. City of Temple Terrace, Fla., 267 F.3d 1197, 1201 (11th Cir.2001); Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1260 (11th Cir.2001); Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1454 (11th Cir.1998). The first element is the only one in dispute in this case.

To establish that a plaintiff engaged in statutorily protected expression, we have held that a plaintiff must show that she "had a good faith, reasonable belief that the employer was engaged in unlawful employment practices." Little v. United Tech., Carrier Transicold Div., 103 F.3d 956, 960 (11th Cir.1997) (citing Rollins v. State of Fla. Dept. of Law Enforcement, 868 F.2d 397, 400 (11th Cir.1989)). In Little, this standard was succinctly described as follows:

It is critical to emphasize that a plaintiff's burden under this standard has both a subjective and an objective component. A plaintiff must not only show that he subjectively (that is, in good faith) believed that his employer was engaged in unlawful employment practices, but also that his belief was objectively reasonable in light of the facts and record presented. It thus is not enough for a plaintiff to allege that his belief in this regard was honest and bona fide; the allegations and record must also indicate that the belief, though perhaps mistaken, was objectively reasonable.


Harden does not contest that the plaintiffs subjectively believed that Harden was engaged in an unlawful employment practice by requiring arbitration of employment discrimination claims. Rather, Harden contends that the plaintiffs did not have an objectively reasonable belief that the mandatory arbitration agreement was an unlawful employment practice. This is so, according to Harden, because such provisions have been unequivocally approved by the Supreme Court in Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991) and Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 121 S.Ct. 1302, 149 L.Ed.2d 234 (2001), by Congress through the Civil Rights Act of 1991, and by this circuit in Bender v. A.G. Edwards & Sons, Inc., 971 F.2d 698 (11th Cir.1992). The plaintiffs respond that although authority existed which approved arbitration provisions at the time the plaintiffs refused to sign the arbitration provision, sufficient contrary authority also existed at the time, such as the Ninth Circuit's decision in Duffield and EEOC policy statements, to give the plaintiffs a reasonable belief that Harden's conduct was unlawful. We agree with Harden that the plaintiffs' belief that Harden was engaged in an unlawful employment practice by requiring the arbitration of employment discrimination claims was not objectively reasonable.

Although previously disfavored by the courts, arbitration agreements to resolve disputes between parties have now received near universal approval. See, e.g., Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626-27, 105 S.Ct. 3346, 3354, 87 L.Ed.2d 444 (1985) ("[W]e are well past the time when judicial suspicion of the desirability of arbitration and of the competence of arbitral tribunals inhibited the development of arbitration as an alternative means of dispute resolution."). Congress demonstrated its approval of arbitration by enacting the Federal Arbitration Act ("FAA") in 1925. The FAA's purpose was to reverse the longstanding judicial hostility to arbitration agreements that had existed at English common law and had been adopted by American courts, and to place agreements to arbitrate on the same footing as other contracts. See Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 219-220, and n. 6, 105 S.Ct. 1238, 1241-1242, and n. 6, 84 L.Ed.2d 158 (1985); Scherk v. Alberto-Culver Co., 417 U.S. 506, 510 n. 4, 94 S.Ct. 2449, 2453 n. 4, 41 L.Ed.2d 270 (1974). Its primary substantive provision states that "[a] written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2.

Courts have consistently found that claims arising under federal statutes may be the subject of arbitration agreements and are enforceable under the FAA. See Mitsubishi, 473 U.S. at 628, 105 S.Ct. at 3354 ("By agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather than a judicial, forum."). Similarly, arbitration...

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