Linda A. BENDER, Plaintiff-Appellee, Cross-Appellant,
v.
A.G. EDWARDS & SONS, INC. and John F. Donovan,
Defendants-Appellants, Cross-Appellees.
No. 91-3285.
United States Court of Appeals,
Eleventh Circuit.
Sept. 8, 1992.
Timothy J. Sarsfield, Peper, Martin, Jensen, Maichel and Herlage, St. Louis, Mo., Claude H. Tison, Jr., MacFarlane, Ferguson, Allison & Kelly, Tampa, Fla., for defendants-appellants.
Charleen Catherine Ramus, Kelly & McKee, Pa., Tampa, Fla., for plaintiff-appellee.
Appeals from the United States District Court for the Middle District of Florida.
Before DUBINA, Circuit Judge, HILL and CLARK*, Senior Circuit Judges.
PER CURIAM:
Linda Bender brought this complaint in federal court alleging sexual harassment by her supervisor, John F. Donovan, at A.G. Edwards & Sons, Inc., a stock brokerage, and sought relief under Title VII and pendent state law claims of battery, intentional infliction of emotional distress, and negligent retention. The defendants moved for a stay of the claims pending arbitration under the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1-16.
In her application for registration as a stock broker with NASD and NYSEX, Bender agreed to arbitrate disputes with her employеr. The district judge found that the state law claims were covered by the agreement and dismissed them. The district judge refused to dismiss or stay the Title VII сlaims finding that Bender could not waive her right to a federal adjudication of Title VII claims. Bender appeals the dismissal of the state law claims, and Donovan and Edwards appeal the district court's denial of their motion to stay the Title VII claims pending arbitration. We find that the state law claims are subject to arbitration, but that it was error to dismiss these claims rather than staying them pending arbitration. Since Gilmer v. Interstate/Johnson Lane Corp., --- U.S. ----,
I. State law claims
If the district court had stayed the state law claims and compelled arbitration under 9 U.S.C. §§ 3-4, this order would not have been appealable under 9 U.S.C. §§ 16(b)(1) and (2). However, the district court dismissed the state law claims, and such dismissal is appealable as a final decision. 28 U.S.C. § 1291.
The district court properly found that the state law claims were subject to arbitration, but erred in dismissing the claims rather than staying them. Upon finding that a claim is subject to an arbitration agreement, the court should order that the action be stayed pending arbitration. 9 U.S.C. § 3. If the parties do not proceed to arbitration, the court may compel arbitration. 9 U.S.C. § 4. Therefore, we vacate the dismissal of the state law claims and remand with instructions that judgment be entered staying all claims pending arbitration.
II. Title VII Claims
Whеther Title VII claims are subject to compulsory arbitration under the Federal Arbitration Act has been in doubt. The United States Supreme Cоurt held that an employee who submitted her grievance to a grievance committee under a collective bargaining agreement did not waive her right to bring a Title VII claim in court. Alexander v. Gardner-Denver Co.,
Other courts, when directly confronted with the question, found that Title VII claims could not be forced into arbitration. Utley v. Goldman Sachs & Co.,
Although Gilmer involved a claim under the Age Discrimination in Employment Act of 1967 (ADEA), its reasoning is dispositive of the agreement to аrbitrate Title VII claims before us. In Gilmer, the employee had signed the same stock broker U-4 registration form as had Bender.1
The Supreme Court found three distinctiоns between the ADEA claim before it and Alexander. First, in Alexander, the employee had brought a contractual claim based on thе collective bargaining agreement to a grievance committee. This contractual claim was quite different from the Title VII stаtutory claim, even though the two claims arose from the same conduct. Id. at 1657. The employees had not agreed to arbitratе their statutory claims. Second, the Supreme Court was concerned that in the collective bargaining process, the interests оf the individual might be subordinated to the collective interests of employees in the bargaining unit: Alexander was designed to ensure that an individuаl's statutory rights were not lost in the collective bargaining process. Id. Third, and most importantly, the Alexander cases were not decidеd under the FAA and did not involve agreements to arbitrate. Id.
None of the Supreme Court's concerns in Alexander are present in this cаse. Bender, individually, entered into an agreement whereby she promised to arbitrate all disagreements with her employer. Her statutory rights were not compromised to secure the interests of other employees in a bargaining unit.
We see no reason to distinguish betwеen ADEA claims and Title VII claims. See Alford,
Therefore, we reverse the judgment of the district court and remand with instructions that the action, insofar as it proceeds under Title VII, be stayed pending arbitration.
The district court's judgment that the state law claims are arbitrable is AFFIRMED. The judgment that Title VII claims are not subject to arbitration is REVERSED. We VACATE the dismissal of the state law claims. We REMAND with instructions that an order be issued stаying all Title VII and state law claims pending arbitration. None of the other issues raised on appeal merits any discussion.
AFFIRMED IN PART, REVERSED IN PART, VACATED IN PART, and REMANDED.
Notes
See Rule 34-2(b), Rules of the U.S. Court of Appeals for the Eleventh Circuit
The form provided that she agreed to
arbitrate any dispute, claim or controversy that may arise between me аnd my firm, or a customer or any other person that is required to be arbitrated under the rules, constitutions or by-laws of the organizations with which I register.
Uniform Application for Securities Industry Registration ("U-4 Application").