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Leath v. Amer Med Intl Inc, 97-10202 (2004)

Court: Court of Appeals for the Fifth Circuit Number: 97-10202 Visitors: 14
Filed: Mar. 04, 2004
Latest Update: Feb. 21, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 97-10202 Summary Calendar _ NORMAN LEATH, Plaintiff-Appellant, VERSUS AMERICAN MEDICAL INTERNATIONAL INCORPORATED, Defendant-Appellee. _ Appeal from the United States District Court for the Northern District of Texas (3:95-CV-818-D) _ August 28, 1997 Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges. JERRY E. SMITH, Circuit Judge:* Norman Leath appeals the confirmation of an arbitration award entered in an employment discriminatio
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                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE FIFTH CIRCUIT
                              _______________

                                 No. 97-10202
                              Summary Calendar
                               _______________



                               NORMAN LEATH,

                                                 Plaintiff-Appellant,


                                    VERSUS

            AMERICAN MEDICAL INTERNATIONAL INCORPORATED,

                                                 Defendant-Appellee.

                        _________________________

            Appeal from the United States District Court
                 for the Northern District of Texas
                           (3:95-CV-818-D)
                      _________________________

                              August 28, 1997

Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*



      Norman Leath appeals the confirmation of an arbitration award

entered in an employment discrimination dispute.             Concluding that

the arbitration agreement is valid and enforceable, we affirm.



                                      I.

      *
        Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
     In March 1993, American Medical International Incorporated

(“American Medical”) required Leath to sign an acknowledgment form

containing an arbitration clause (the “Clause”) as a condition of

his continued employment.      The Clause stated, in relevant part:

     I . . . understand that as a condition of employment and
     continued employment, I agree to submit any complaints to
     the published process and agree to abide by and accept
     the final decision of the arbitration panel as ultimate
     resolution of my complaint(s) for any and all events that
     arise out of employment or termination of employment.

Leath was discharged in August 1993.

     Leath sued American Medical under title VII of the Civil

Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17; the Age

Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621-634;

and 42 U.S.C. § 1981, alleging that he was fired because of his

race, sex,   and   age   and   in   retaliation   for   complaining   about

American Medical’s discriminatory practices.            Leath and American

Medical agreed to submit the claims to arbitration, although Leath

reserved   the   right   to    challenge   the    enforceability   of   the

arbitration agreement at a later time.

     In December 1996, the arbitrator found, inter alia, that

American Medical’s actions were based on non-discriminatory reasons

and denied Leath’s claim in its entirety.           In January 1997, the

district court confirmed the arbitral decision.



                                     II.

                                     A.

                                      2
       Contrary to Leath’s assertion, it is well-settled that we re-

view the decision to confirm an arbitral decision de novo.                   See

Gateway Technologies, Inc. v. MCI Telecomms. Corp., 
64 F.3d 993
,

996 (5th Cir. 1995).       Our review of the arbitrator’s decision, on

the other hand, is extremely deferential.                See Executone Info.

Sys., Inc. v. Davis, 
26 F.3d 1314
, 1320 (5th Cir. 1994).

       The Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1-16, states

that    an   arbitration    provision       in   “a   contract    evidencing    a

transaction involving commerce . . . 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.   Parties

may agree to arbitrate claims arising under the ADEA, see Gilmer v.

Interstate/Johnson Lane Corp., 
500 U.S. 20
, 27-33 (1991), and we

have extended this principle to title VII claims, see Alford v.

Dean Witter Reynolds, Inc., 
939 F.2d 229
, 230 (5th Cir. 1991).

       Leath argues that the Clause is unenforceable because it is

not supported by consideration.              Although Leath admits that he

received     continued     employment       in   exchange   for   agreeing     to

arbitrate, he argues that this does not qualify as valid con-

sideration.

       Under Texas law, the employer and employee have the right to

condition continued employment on the modification of the terms of

employment.     See Hathaway v. General Mills, Inc., 
711 S.W.2d 227
,

229 (Tex. 1986).    That Leath remained an at-will employee is of no


                                        3
moment; he received consideration in the form of continued salary

and employment.

       Leath argues that this consideration is invalid because the

“new policy is itself illegal.”             This assertion is meritless, as

the Supreme Court has held it is legally permissible to require

arbitration of statutory rights.            See 
Gilmer, 500 U.S. at 26
.



                                       B.

       Leath also avers that the Clause is unenforceable because it

“does not specifically put Leath on notice that he was waiving his

right to the judicial remedies provided to redress the violation of

his statutory rights.”         Leath signed an agreement to arbitrate any

complaints “for any and all events that arise out of employment or

termination of employment.”          It is obvious that the conduct that

forms the basis of his complaint arises out of the “termination of

employment.”

       The   notion     that    an   arbitration      agreement   must   state

specifically that statutory rights are covered is contrary to

precedent.    For example, the Gilmer Court ordered arbitration when

the agreement referred, by adoption, to “[a]ny controversy . . .

arising out of the employment or termination of 
employment.” 500 U.S. at 23
.       In fact, we have held that an employment contract

that   requires   the    arbitration    of     “any   action   contesting   the

validity of this Agreement, the enforcement of its financial terms,


                                       4
or   other   disputes”   was   sufficient   under   the   FAA.   Rojas   v.

TK Communications, Inc., 
87 F.3d 745
, 746 (5th Cir. 1996); see

Patterson v. Tenet Healthcare, Inc., 
113 F.3d 832
, 834-35 (8th Cir.

1997) (enforcing an arbitration clause identical to the instant

one).

      AFFIRMED.




                                     5

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