Fred Powell v. Anheuser-Busch Incorporated , 457 F. App'x 679 ( 2011 )

FILED
NOT FOR PUBLICATION NOV 03 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRED POWELL, No. 10-55167
Plaintiff - Appellee, D.C. No. 2:09-cv-00729-VBF-
VBK
v.
ANHEUSER-BUSCH INCORPORATED, MEMORANDUM*
a Missouri Corporation,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Valerie Baker Fairbank, District Judge, Presiding
Argued and Submitted October 11, 2011
Pasadena, California
Before: LEAVY and WARDLAW, Circuit Judges, and MAHAN, District Judge.**
Anheuser-Busch, Inc. (“ABI”) appeals the district court’s January 8, 2010,
order granting Fred Powell’s motion for reconsideration of the district court’s June
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable James C. Mahan, United States District Judge for the
District of Nevada, sitting by designation.
29, 2009, order compelling arbitration. We have jurisdiction pursuant to 9 U.S.C.
§ 16(a), and we affirm.
The Collective Bargaining Agreement (“CBA”) between ABI and Powell’s
union, Teamsters Local Union No. 896 (“Union”), does not “clearly and
unmistakably” require Powell to arbitrate claims of statutory discrimination. See
14 Penn Plaza LLC v. Pyett, 129 S. Ct. 1456, 1474 (2009). Although it is unclear
whether the district court relied on the lack of a clear and unmistakable waiver in
granting Powell’s motion for reconsideration, we may affirm on any basis
supported in the record, “even if it differs from the district court’s rationale.” Van
Asdale v. Int'l Game Tech., 577 F.3d 989, 994 (9th Cir. 2009) (internal quotation
marks omitted).
We will not interpret a CBA to waive an individual employee’s right to
litigate statutory discrimination claims unless the CBA waiver “explicit[ly]
incorporat[es] . . . statutory antidiscrimination requirements.” Wright v. Universal
Mar. Serv. Corp., 525 U.S. 70, 80 (1998). The CBA here did not explicitly
incorporate Powell’s disability discrimination claims under the California Fair
Employment and Housing Act (“FEHA”). See Cal. Gov’t Code §§ 12940 et seq.
Although CBA Section 41“recognizes” ABI’s duty to comply with FEHA, it is
clearly addressed to a situation where ABI’s compliance with FEHA conflicts with
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any provision of the CBA. Where the only reasonable accommodation available
conflicts with the CBA, and ABI adopts it anyway, the Union may challenge the
accommodation through the grievance procedure. Section 41 speaks not at all to
the right of an individual employee to litigate a FEHA claim against ABI.
Moreover, the CBA supplies arbitration procedures only as between ABI
and the Union. The CBA provides no mechanism that would allow an individual
to commence the grievance and arbitration process without the Union’s
participation, as is the case here. Nor is any mechanism provided to resolve
disputes between ABI and an individual employee over the selection of an
arbitrator; the arbitrator selection procedures set forth in Section 32.03 apply only
to ABI and the Union. The CBA’s failure to contain any arbitration procedures
governing the arbitration of Powell’s statutory claim against ABI is the very reason
for the “complete breakdown in the arbitration process” found by the district court.
AFFIRMED.
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