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USCA1 Opinion
United States Court of Appeals
For the First Circuit
____________________
No. 97-1508
JOSE RAMIREZ-DE-ARELLANO, MARTA SUAREZ DE RAMIREZ DE ARELLANO
AND THE CONJUGAL PARTNERSHIP CONSTITUTED BY THEM,
Plaintiffs, Appellants,
v.
AMERICAN AIRLINES, INC.,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Dominguez, U.S. District Judge] ___________________
____________________
Before
Stahl, Circuit Judge, _____________
Godbold,* Senior Circuit Judge ____________________
and Cyr, Senior Circuit Judge. ____________________
____________________
Carlos A. Del Valle Cruz on brief for appellants. ________________________
Luis D. Ortiz Abreu, Vivian Nunez, and Goldman Antonetti & _____________________ _____________ _____________________
Cordova on brief for appellee. _______
____________________
December 22, 1997
____________________
_____________________
*Of the Eleventh Circuit, sitting by designation.
Stahl, Circuit Judge. Jose Ramirez de Arellano Stahl, Circuit Judge _____
("Ramirez"), together with his wife, child, and conjugal
partnership, appeal from the district court's grant of
summary judgment to American Airlines ("American") in this
wrongful discharge and retaliatory dismissal action brought
primarily under the Fair Labor Standards Act (FLSA) and
Puerto Rico law.1 After carefully reviewing the record and
considering Ramirez's arguments, we conclude that the
district court properly awarded summary judgment to
defendant. We prefer, however, not to rely on that portion
of the district court's order which gave res judicata effect ___ ________
to American's internal grievance procedure. Instead, we
choose to affirm on the grounds that Ramirez was dismissed
for just cause under Puerto Rico law and that Ramirez failed
to set forth sufficient evidence to trigger a presumption of
discrimination or retaliation on the part of American. See ___
Polyplastics, Inc. v. Transconex, Inc., 827 F.2d 859, 860-61 ___________________ ________________
(1st Cir. 1987) (explaining that an appellate court can
affirm on any independent ground made manifest in the
record).
____________________
1. Ramirez's original district court claims included the
FLSA claim for retaliatory dismissal, an age discrimination
claim under Puerto Rico law, claims for wrongful and
retaliatory dismissal under local severance law, and a
defamation claim. Two of these claims are not included in
the present appeal: the age discrimination claim, which
Ramirez voluntarily dismissed, and the defamation claim,
which the district court rejected on grounds of privilege.
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American employed Ramirez from 1984-1997 as a
ticket agent, and, later, as a baggage handler. After two
written performance advisories, American terminated Ramirez,
citing as reasons his failure to follow company time and
attendance procedures and his attempt to circumvent company
rules to his own benefit.
Following his dismissal, Ramirez submitted a
written grievance to American, pursuant to the internal
grievance procedure set forth in the employee handbook.
American upheld the termination and denied Ramirez an appeal
on the basis of tardy application. Ramirez subsequently
filed suit in Puerto Rico district court, and now appeals the
order of summary judgment rejecting the FLSA claim on the
merits and all other claims under the doctrine of res ___
judicata. See Ramirez v. American Airlines Inc., 957 F. ________ ___ _______ _______________________
Supp. 359 (D.P.R. 1997) (equating American's grievance
procedure with a binding arbitration).
We review the award of summary judgment de novo, __ ____
and draw all reasonable inferences in Ramirez's favor.
Grenier v. Vermont Log Bldgs., Inc., 96 F.3d 559, 562 (1st _______ _______ _________________
Cir. 1996). The record is replete with documented
illustrations of Ramirez's performance problems and repeated
failure to follow American's policies and procedures.
Moreover, American had given Ramirez two official advisories
prior to his dismissal. Thus, there can be no basis for
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inferring that American's stated reason for the discharge was
wrongful or pretextual under federal law.
The result is no different under Puerto Rico law,
which provides that an employee is not entitled to statutory
wrongful discharge indemnity if the employee was terminated
for just cause. P.R.Laws Ann.tit 29 185 et seq. __ ____
Under Puerto Rico law, just cause for dismissal
includes repeated violations of the employer's rules and
regulations, provided that, as here, the employee has been
provided with a written copy of the relevant policies and
procedures. See P.R. Laws Ann. tit 29 185b; see also ___ ___ ____
Menzel v. Western Auto Supply Co., 662 F. Supp. 731, 744 ______ _________________________
(D.P.R. 1987), aff'd, 848 F.2d 327 (1st Cir. 1988). As noted _____
above, the record here admits of only one conclusion:
Ramirez's repeated transgressions of company policy and
procedures provided American with just cause for termination.
Summary judgment was, therefore, properly granted to the
defendant.
Although summary judgment was properly awarded, we
have some doubt about the district court's ruling that
American's internal company grievance procedure, set forth in
its employee handbook, is the legal equivalent of binding
arbitration and, therefore, bars judicial resolution of
potential statutory and constitutional claims. As Ramirez
points out, there is little in the way of back and forth
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bargaining between a company and its employees when an
employment handbook is created, making this situation
distinguishable from the arbitration provisions of a
collective bargaining agreement. This is especially so
where, as here, the handbook expressly provides that it is
not a contract between the parties and is subject to
unilateral amendments by American at any time.
Although the district court was correct in noting
the existence of a strong federal policy favoring
arbitration, the threshold question for review must always be
whether the agreement to arbitrate was, indeed, voluntary and
intentional. Mitsubushi Motors Corp. v. Solar Chrysler- ________________________ ________________
Plymouth Inc., 473 U.S. 614, 626 (1985). Given the ______________
apparently unilateral and adhesive nature of American's
employee handbook, we do not embrace the argument that
Ramirez voluntarily waived his right to pursue his claims in
federal court.2
____________________
2. We note that two other Circuits have recently addressed this
issue. In Nelson v. Cyprus Bagdad Copper Corp., 119 F.3d 756 (9th ______ ___________________________
Cir. 1997), the Ninth Circuit held that signing an acknowledgment form
which provided that the employee agrees to "read and understand" a
revised employee handbook did not serve to bind the employee to the
handbook's internal grievance provisions. Id. at 761. The Ninth ___
Circuit reasoned that:
Merely signing the form did not in any way
constitute a 'knowing agreement to arbitrate,' and
thereby to surrender [the employee's] statutory
right [under the ADA] to a judicial forum . . .
Any bargain to waive the right to a judicial forum
for civil rights claims, including those covered
by the ADA, in exchange for employment or
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Moreover, we have strong concerns about the
fundamental fairness of giving preclusive effect to the
particular grievance procedure in this case. Arbitration
proceedings must meet "the minimal requirements of fairness--
adequate notice, a hearing on the evidence, and an impartial
decision by the arbitrator." Sunshine Mining Co. v. United ___________________ ______
Steelworkers, 823 F.2d 1289, 1295 (9th Cir. 1987) (internal ____________
quotations and citations omitted); Bowles Fin. Group, Inc. v. _______________________
Stifel, Nicolaus & Co., Inc., 22 F.3d 1010, 1013 (10th Cir. _____________________________
1994).
First, with respect to notice, we are not convinced
that Ramirez's application for a hearing was appropriately
denied for untimeliness because it appears that American may
____________________
continued employment, must at least be express:
the choice must be explicitly presented to the
employee and the employee must explicitly agree to
waive the specific right in question. Id. at 761- ___
62 (internal quotations and citations omitted).
Similarly, the Eighth Circuit recently instructed that the
absence of such an express waiver precludes a finding that there has
been a knowing agreement. See Patterson v. Tenet Healthcare, Inc., ___ _________ _______________________
113 F.3d 832, 835 (8th Cir. 1997). The Patterson court upheld the _________
employee handbook arbitration provision because the arbitration clause
was both separate and distinct from other provisions in the handbook
and was introduced by the heading, "IMPORTANT! Acknowledgment Form."
Id. Unlike other provisions within the handbook, the arbitration ___
clause used contractual language, such as "I understand" and "I
agree." Id. Moreover, the form was signed by the employee, removed ___
from the handbook, and given to the Human Resources Department to be
stored in the employee's personnel file. Id. It was only because the ___
court deemed these actions in toto sufficient to render the __ ____
arbitration clause "separate and distinct" from the remainder of the
handbook, that the court held that the internal grievance and
arbitration clause constituted an enforceable contract. Id. ___
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have been equally, if not more, to blame for the late filing.
Second, there was no opportunity for discovery. See Hoteles ___ _______
Condado Beach v. Union de Tronquistas Local 901, 763 F.2d 34, _____________ ______________________________
39 (1st Cir. 1985)(instructing that an arbitrator must afford
each party an adequate opportunity to present both evidence
and argument); see also Williams v. Katten, 1996 WL 717447, ___ ____ ________ ______
at *4-5, (N.D. Ill. Dec. 9, 1996) (discussion of the
permissible parameters of limited discovery in an arbitration
proceeding). Third, the decision maker was not a
disinterested party, but rather, an American managerial
employee. See Employers Ins. of Wausau v. National Union ___ _________________________ ______________
Fire Ins. Co., 933 F.2d 1481, 1491 (9th Cir. __________________
1991)(stipulating that fair arbitration proceedings must
include non-biased decisionmakers). Finally, the record
reveals that Ramirez was actually denied any review by a
hearing officer or panel, which, following the district
court's analysis, effectively rendered all of his claims res ___
judicata on the basis of one manager's view.3 ________
____________________
3. This is a distinctly different scenario from Garcia v. ______
American Airlines, Inc., 673 F. Supp. 63 (D.P.R. 1987), the ________________________
case upon which the district court relied for its res ___
judicata ruling. In Garcia, the employee utilized step two of ________ ______
American's grievance procedure and, while represented by
counsel, had an opportunity to appeal his dispute to a
stateside hearing officer. Id. at 66. In contrast, Ramirez ___
was denied any opportunity to present his claims to a hearing
officer (step two) or panel (step three); he simply spoke
with the General Manager, and was denied any further appeal.
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Because American had ample just cause to terminate
Ramirez's employment and Ramirez presented insufficient
evidence to raise an inference of discrimination or
retaliation, we uphold the award of summary judgment to
American.
Affirmed. No costs. Affirmed ________
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Document Info
Docket Number： 97-1508
Filed Date： 12/22/1997
Precedential Status： Precedential
Modified Date： 9/21/2015