Alford v. Dean Witter Reynolds, Inc.

905 F.2d 104, 1990 U.S. App. LEXIS 11471, 54 Empl. Prac. Dec. (CCH) 40,061, 53 Fair Empl. Prac. Cas. (BNA) 529, 1990 WL 84624
CourtCourt of Appeals for the Fifth Circuit
DecidedJuly 11, 1990
DocketNo. 89-2599
StatusPublished
Cited by24 cases

This text of 905 F.2d 104 (Alford v. Dean Witter Reynolds, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Alford v. Dean Witter Reynolds, Inc., 905 F.2d 104, 1990 U.S. App. LEXIS 11471, 54 Empl. Prac. Dec. (CCH) 40,061, 53 Fair Empl. Prac. Cas. (BNA) 529, 1990 WL 84624 (5th Cir. 1990).

Opinion

EDITH H. JONES, Circuit Judge:

Joan Alford was a stockbroker with Dean Witter Reynolds, Inc. (“Dean Witter”) until she was fired for allegedly discriminatory reasons. The issue before us is whether she may pursue a Title VII lawsuit for sex discrimination and sexual harassment or must, as the company contends, submit to commercial arbitration of her claim. In 1974, a unanimous Supreme Court held that Title VII claims need not be relegated to the arbitration process governed by a collective bargaining agreement. Alexander v. Gardne—Denver Company, 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974). We conclude that, despite the Court’s subsequent series of decisions encouraging commercial arbitration, Alexander governs this case. We therefore affirm the district court’s denial of a dismissal or an order compelling arbitration. 712 F.Supp. 547.

This dispute requires us to reconcile the strong national policy favoring commercial arbitration, 9 U.S.C. § 2, with the equally important federal legislation designed to combat discrimination.1 Dean Witter forcefully argues that in recent Supreme Court jurisprudence, contractual provisions for arbitration have prevailed against pleas for litigation of various statutorily-founded claims, including those under the securities, RICO and anti-trust laws.2 The Court has declared that

As a matter of federal law [the Federal Arbitration Act], any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration....

Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927 at 941-42, 74 L.Ed.2d 765 (1985). The Court has also held that, “we rigorously enforce agreements to arbitrate.” Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 221, 105 S.Ct. 1238, 1243, 84 L.Ed.2d 158 (1985). That the claim rests on federal statutory grounds does not necessarily render it less susceptible to arbitration:

The Arbitration Act, standing alone, therefore mandates enforcement of agreements to arbitrate statutory claims. Like any statutory directive, the Arbitration Act’s mandate may be overridden by a contrary congressional command. The burden is on the party opposing arbitra[106]*106tion, however, to show that Congress intended to preclude a waiver of judicial remedies for the statutory rites at issue. ... If Congress did intend to limit or prohibit waiver óf a judicial forum for a particular claim, such an intent “will be deducible from [the statute’s] text or legislative history,” ... or from an inherent conflict between arbitration and the statute’s underlying purposes.” ... (citations omitted).

Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 226-27, 107 S.Ct. 2332, 2337, 96 L.Ed.2d 185 (1987). Permitting enforcement of statutory remedies by means of contractual arbitration has thus become the norm rather than the exception for contracts governed by the Federal Arbitration Act (“FAA”).

If the issue were open to us to evaluate afresh, we might well interpret Title VII consistent with these recent decisions. But, because of the Alexander decision, the issue is not an open one. In Alexander, the Supreme Court held that a union employee was not foreclosed by his lack of success in an arbitration compelled by his collective bargaining agreement from later pursuing a Title VII suit for his employer’s racial discrimination. After analyzing the enforcement scheme of Title VII and finding that “federal courts have been assigned plenary powers to secure compliance with Title VII,” 415 U.S. at 45, 94 S.Ct. at 1018, the Court held that,

[tjhere is no suggestion in the statutory scheme that a prior arbitral decision either forecloses an individual’s right to sue or divests federal courts of jurisdiction.

415 U.S. at 47, 94 S.Ct. at 1019. The Court rejected a rule of blanket deference owed by federal courts to the prior findings of arbitrators on Title VII issues:

The purpose and procedures of Title VII indicate that Congress intended federal courts to exercise final responsibility for enforcement of Title VII; deferral to ar-bitral decisions would be inconsistent with that goal. Furthermore, we have long recognized that ‘the choice of forums inevitably affects the scope of the substantive right to be vindicated.’ U.S. Bulk Carriers, Inc. v. Arguelles, 400 U.S. 351, 359-360, 91 S.Ct. 409, 413-14 [27 L.Ed.2d 456] (1971) (Harlan, J., concurring).

Alexander, 415 U.S. at 56, 94 S.Ct. at 1023. In a final footnote citing factors relevant to a federal court’s decision to admit in evidence a prior arbitral award, the Court added:

... courts should ever be mindful that Congress, in enacting Title VII, thought it necessary to provide a judicial forum for the ultimate resolution of discriminatory employment claims. It is the duty of courts to assure the full availability of this forum.

Alexander, 415 U.S. at 60, n. 21, 94 S.Ct. at 1025, n. 21.

Although distinctions between Alexander and the present case will be considered, we regard Alexander’s rationale as broad enough to speak to any arbitration of Title VII claims. Two other circuits have already so held. Utley v. Goldman Sachs & Co., 883 F.2d 184 (1st Cir.1989); Swenson v. Management Recruiters International, Inc., 858 F.2d 1304, 1307 (8th Cir.1988), reh’g denied, 872 F.2d 264 (8th Cir.1989). No circuit court has held otherwise.3

Dean Witter nevertheless urges that Alexander does not control this case for three reasons. First, Alexander specifically held that an employee may pursue both arbitration and Title VII remedies simulta[107]*107neously, thus implying that Alford may be required to arbitrate first and sue later. Second, Alexander was premised upon the nature of labor arbitration, which is distinguishable in this context from arbitration under the FAA. Third, the rationale of Alexander has been undercut by the Supreme Court decisions affirming the use of commercial arbitration in statutorily-founded claims. None of these arguments is convincing enough.

It is true that Alexander emphasized the availability of two overlapping remedies for discrimination in that case — the non-discrimination clause in the plaintiff’s union contract and his Title VII claim.

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905 F.2d 104, 1990 U.S. App. LEXIS 11471, 54 Empl. Prac. Dec. (CCH) 40,061, 53 Fair Empl. Prac. Cas. (BNA) 529, 1990 WL 84624, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alford-v-dean-witter-reynolds-inc-ca5-1990.