Anthоny I. CRAFT, Plaintiff-Appellee, v. CAMPBELL SOUP COMPANY, a Corporation, Defendant-Appellant.
No. 98-15060
United States Court of Appeals, Ninth Circuit
Decided Dec. 2, 1998
161 F.3d 1199
Argued and Submitted Aug. 10, 1998.
Plaintiffs appeal the district court‘s dismissal of their ADA and WLAD claims.
Standard of Review
A grant of summary judgment is reviewed de novo. See Covey v. Hollydale Mobilehome Estates, 116 F.3d 830, 834 (9th Cir.1997). The appellate court must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. See id.
Analysis
In order to prevail on their claim, plaintiffs must establish “(1) that [they are] disabled person[s] within the meaning of the ADA; (2) that [they are] qualified, that is, with or without reasonable accommodation . . . , [they are] able to perform the essential functions of the job; and (3) that the [County] terminated [them] because of [their] disability.” Kennedy v. Applause, Inc., 90 F.3d 1477, 1481 (9th Cir.1996) (citation and footnote omitted). The court decides plaintiffs’ state antidiscrimination claims using the same analysis it uses to interpret federal antidiscrimination law. See Sharpe v. American Tel. & Tel. Co., 66 F.3d 1045, 1050 (9th Cir.1995).
We agree with the district court that appellants are not qualified individuals with disabilities under the ADA. No accommodation would allow them to have direct inmate contact, an essential function of the corrections officer position. Seе Kennedy, 90 F.3d at 1481 (citing
We have carefully considered each factor listed in
AFFIRMED.
Steven B. Berlin, Littler Mendelson, San Francisco, California, for defendant-appellant.
John E. Linneball, Ross & Associates, San Francisco, California, for plaintiff-appellee.
Before: BRUNETTI, TASHIMA, and GRABER, Circuit Judges.
Per Curiam Opinion; Dissent by Judge BRUNETTI.
We must decide the threshold issue of whether we have jurisdiction to hear Campbell Soup Company‘s (“Campbell Soup“) interlocutory appeal from the district court‘s denial of its motion for summary judgment. Beсause we conclude that appellate jurisdiction is lacking, we dismiss the appeal.
As there is no final judgment or any other applicable exception to the final judgment rule, this court has jurisdiction only if the Federal Arbitration Act (“FAA“) applies. See
I.
Anthony I. Craft was аn employee of Campbell Soup and a member of the Food Process Workers and Warehousemen and Helpers Local Union 228 (the “Union“). The collective bargaining agreement (“CBA“) between Campbell Soup and the Union includes a nondiscrimination clause which provides that “[d]isputes under this provision shall be subject to the grievance and arbitration procedure [provided in the CBA].”1
Craft filed a grievance alleging racial discrimination, harassment, health and safety concerns, and other claims. The grievance was not resolved in the initial grievance stages and the Union referred it to arbitrаtion. While the grievance was still pending, Craft filed this action in district court. He alleged claims for race discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended,
The district court granted Campbell Soup summary judgment on Craft‘s supplemental state law claims. Following the majority view, however, the court held that arbitration of Craft‘s Title VII claims could not be compelled.3 Accordingly, it denied Campbell Soup‘s summary judgment motion as to those claims. Campbell Soup appeals that interlocutory order denying its motion for summary judgment on Craft‘s Title VII claims.4
“When interpreting a statute, this court looks first to the words that Congress used.” Sanchez v. Pacific Powder Co., 147 F.3d 1097, 1099 (9th Cir.1998). “Rather than focusing just on the word or phrase at issue, this court looks to the entire statute to determine Congressional intent.” Id.
Applying those principles here, we begin with
A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration аn existing controversy arising out of such contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.
A collective bargaining agreement or an individual employment contract would not seem to fall within the ordinary concept of a contract “evidencing a transaction,” even though it often involves interstate commerce. As pertinent, “transaction” commonly means “[a] business deal; an act involving buying and selling.” Webster‘s Int‘l Dictionary 2688 (2d ed. unabridged 1939). See The Century Dictionary and Cyclopedia 6426 (revised and enlarged ed.1911) (“1. The management or settlement of an affair; a doing or performing: as, the transaction of business. -2. A completed or settled matter or item of business . . . .“); see also United States v. Boos, 127 F.3d 1207, 1210 (9th Cir.1997) (generally, words in a statute are given their common and ordinary definition), cert. denied, — U.S. —, 118 S.Ct. 734, 139 L.Ed.2d 672 (1998). In summary, the coverage section of the FAA,
Section 1 of the FAA, however, contains definitions and, with respect to “commerce,” concludes that “nothing herein shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.”
Courts have developed two interpretations of these ambiguous provisions: (1) Congress did not intend for the FAA to apply to any employment contracts; and (2) Congress intended for the FAA to apply to all employment contracts, except for the contracts of employees who actually work in interstate commerce. Craft does not actually work in interstate commerce. Thus, if the latter view applies, the FAA governs this action, and we have jurisdiction to decide this appeal. If, on the other hand, the FAA does not apply to employment contracts, then the FAA‘s interlocutory appeal provision,
Courts that have adopted the latter view have relied on a contemporary understanding of the terms used in the FAA.5 The FAA, however, is not a modern statute. The FAA, including
Commerce consists of intercourse and traffic . . . and includes the transportation of persons and property, as well as the purchase, sale and exchange of commodities. The making of goods and the mining of coal are not commerce, nor does the fact that these things are to be afterwards shipped, or used in interstаte commerce, make their production a part thereof. Over interstate transportation, or its incidents, the regulatory power of Congress is ample, but the production of articles, intended for interstate commerce, is a matter of local regulation.
Id. at 272, 38 S.Ct. 529 (quotations omitted). Similarly, in Howard v. Illinois Cent. R.R., 207 U.S. 463, 28 S.Ct. 141, 52 L.Ed. 297 (1908) (the first employer liability case), workers not directly involved in interstate commerce were deemed outside of Congress’ Commerce Clause power. Howard rejected the idea that “one who engages in interstate commerce thereby submits all of his business concerns to the regulating power of Congress,” id. at 502, 28 S.Ct. 141, and held the employer liаbility act unconstitutional, because it included subjects outside of Congress’ constitutional power to regulate. Id. at 504, 28 S.Ct. 141.
This narrow understanding of Congress’ Commerce Clause power continued through the period of the drafting and enacting of the FAA. In United Leather Workes’ Int‘l Union v. Herkert & Meisel Trunk Co., 265 U.S. 457, 464, 44 S.Ct. 623, 68 L.Ed. 1104 (1924), the Court held that an illegal strike of leather workers preventing the manufacture of goods did not interfere with interstate commerce, as it did not interfere with the “free transport and delivery of the products.” Congress’ Commerce Clause power at the time of the FAA‘s enactment was clearly limited to the actual interstate movement of goods. Thus, an act promulgated in thе mid-1920s, which excluded workers “engaged in interstate commerce,” extended its reach to the outer limit of Congress’ power under the Commerce Clause, because all classes of employees who were not actually working in interstate commerce were already outside the reach of the FAA. Because Congress drafted the employment exclusion clause to exclude all employment contracts which it then had the power to regulate, Congress clearly intended that the FAA not apply to any contracts of employment.
From a historical context, then,
The legislative history of the FAA also indicates that the Act‘s purpose was solely to bind merchants who were involved in commercial dealings. See Local 205, United Elec. Workers v. General Elec. Co., 233 F.2d 85, 99 (1st Cir.1956) (noting that congressional attention was being directed solely toward the field of commercial arbitration), aff‘d on other grounds, 353 U.S. 547, 77 S.Ct. 921, 1 L.Ed.2d 1028 (1957). Before the Senate Judiciary Committee held hearings on the FAA, the draft bill made valid and enforceable “a written provision in any contract or maritime transaction or transaction involving commerce to settle by arbitration a controversy therеafter arising.”6 See Sales and Contracts to Sell in Interstate and Foreign Commerce, and Federal Commercial Arbitration, Hearing on S. 4213 and S. 4214 before a Subcomm. of the Senate Comm. on the Judiciary, 67th Cong. 1 (1923) (emphasis added) (“67th Cong.“). See also Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 279, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995) (citing the original wording of the FAA). That draft of the bill thus applied to all contracts and did not contain the employment exclusion later codified in
At the hearing, the chair of the American Bar Association Committee on Commerce, Trade and Commercial Law, W.H.H. Piatt, testified that the bill was partly in reaction to the intense judicial hostility toward arbitration of merchants’ disputes. 67th Cong. at 8 (1923)(statement of W.H.H. Piatt).7 Piatt went on to state that the FAA was not to “be an act referring to labor disputes at all. It is purely an act to give the merchants the right or privilege of sitting down and agreeing with each other as to what their damages are, if they want to do it. Now that is all
Before that same committee, the Secretary of Commerce, Herbert Hoover, suggested that, if Congress wanted to ensure that “workers’ contracts” were excluded from the FAA, “it [the bill that became the FAA] might well be amended by stating that ‘but nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.‘” Id. at 14. Thereafter, Congress amended what became
As can be seen from the Senate Judiciary Committee hearing, and the subsequent amendments that Congress made to the proposed legislation, the FAA was part of an effort to gain uniformity in the application of agreements to arbitrate sales and commercial transactions. The FAA was never intended to apply to labor contracts of any sort. Labor contracts were seen as having the potential to elicit the forced agreement to arbitrate that the enactors of thе FAA so disliked.
The interpretation of the FAA has remained confused, however, because many courts have ignored the “transaction” requirement of
One such explanation, cited by Campbell Soup, was provided by the Third Circuit in Tenney, which concluded that the Act excluded only those workers for whom there already was special arbitration. See Tenney, 207 F.2d at 452-53. As Professor Matthew Finkin has argued, however, “the court reasoned backwards and got it wrong.” See Matthew W. Finkin, Worker‘s Contracts Under the United States Arbitration Act: An Essay in Historical Clarification, 17 Berk. J. Emp. & Lab. L. 282, 291 (1996) (“Finkin“). Congress’ intent in drafting the
Campbell Soup also relies on the textual argument from Cole and a similar case from the Sixth Circuit, Asplundh, to maintain that the use of the term “engaged in” interstate commerce in
As Professor Finkin points out, however:
The difficulty [with this interpretation] is that the distinction has no support in either the law of the period or the history of the Act. On the law, there is no doubt that by the 1940‘s the Supreme Cоurt had expanded the Commerce power to reach a class of workers who “affected” commerce even though they were not engaged in it; but it is dubious, at the very least, that that distinction was well recognized in 1924.
Finkin at 294. Moreover, as Finkin additionally notes, courts that have made these kinds of textual distinctions, like Tenney and Asplundh, have relied entirely on cases from the 1940s to support the distinction between “engaged in” and “involving” commerce. See Finkin at 294 n. 55. We decline to adopt such anachronistic reasoning.
Campbell Soup also relies on the rule of ejusdem generis to interpret narrowly the employment exclusion. The rule of ejusdem generis “limits general terms which follow specific ones to matters similar to those specified.” Cole, 105 F.3d at 1471. Accordingly, the gеneral phrase “any other class of workers engaged in foreign or interstate commerce” in the exclusion clause takes its meaning from the specific terms preceding it — “seamen” and “railroad employees” — and includes only those other classes of workers who are similarly engaged directly in commerce. Id.
This line of reasoning, however, is inapplicable to
Since the intention of Congress manifestly was to confine the Act to commercial disputes, ejusdem generis has no possible relevancy here. As said in Gooch v. United States, 297 U.S. 124, 128, 56 S.Ct. 395, 80 L.Ed. 522 (1936), it [the rule of ejusdem generis] may not be used to defeat the obvious purpose of legislation.
Tenney, 207 F.2d at 458 (McLaughlin, J., dissenting) (internal quotations and citations omitted). Both the legislative history and the contemporary meaning of the Commerce Clause at the time of the FAA‘s enactment demonstrate the obvious scope and purpose of the FAA, which ejusdem generis cannot be used to defeat. Moreover, we reiterate that the cases on which Campbell Soup relies address
While neither this court nor the Supreme Court has definitively ruled on whether the FAA applies to employment contracts, both courts have suggested that it does not. We have repeatedly noted the Supreme Court‘s reluctance to hold the FAA applicable to arbitration proceedings involving labor disputes, as well as our own inclination to interpret the employment exclusion clause broadly. See American Postal Workers Union v. United States Postal Serv., 861 F.2d 211, 215 n. 2 (9th Cir.1988) (noting that neither Supreme Court nor this court has ever expressly held FAA applicable to arbitration of labor disputes); San Diego County Dist. Council of Carpenters v. Cory, 685 F.2d 1137 (9th Cir.1982) (indicating that Congress did not mean FAA to be used to review arbitration awards involving collective bargaining agreements); Local 1020, United Brotherhood of Carpenters v. FMC Corp., 658 F.2d 1285, 1290 (9th Cir.1981)(noting the Court‘s hesitation to hold FAA enforceable in labor arbitration proceedings and discussing Justice Frankfurter‘s dissent in Lincoln Mills). As we have noted earlier, however, the question is still an open one in this circuit. See Kummetz, 152 F.3d at 1155 n. 2 (so stating).
From time to time also, there have been indications from the Supreme Court, albeit no more than indications, that the FAA does not apply to employment contracts. In both Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957), and General Elec. Co. v. United Elec. Workers, 353 U.S. 547, 77 S.Ct. 921, 1 L.Ed.2d 1028 (1957), although the Court enforced the
Naturally enough, I find rejection, though not explicit, of the availability of the Federal Arbitration Act to enforce arbitration clauses in collective-bargaining agreements in the silent treatment given that Aсt by the Court‘s opinion. If an Act that authorizes the federal courts to enforce arbitration provisions in contracts generally, but specifically denies authority to decree that remedy for “contracts of employment,” were available, the Court would hardly have to spin such power out of the empty darkness of § 301. I would make this rejection explicit, recognizing that when Congress passed legislation to enable arbitration agreements to be enforced by the federal courts, it saw fit to exclude this remedy with respect to labor contracts.
Lincoln Mills, 353 U.S. at 466-67, 77 S.Ct. 912 (Frankfurter, J., dissenting) (citations omitted).
More recently, in Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991), the Court faced an arbitration clause in a New York Stock Exchange securities form. Although the Court declined to address the scope of the
Finally, and notwithstanding its broad reading of the term “involving commerce” in
Based on the wording of
DISMISSED.
Today, the majority goes against the great weight of circuit court authority1 by holding that exclusionary clause of
The majority avers that, when sections 1 and 2 of the FAA are read together, the term “engaged in interstate commerce” is ambiguous. To resolve this perceived ambiguity, it examines the historical context and legislative history of the FAA. From these extrinsic sources, the majority determines that Congress clearly intended to exclude all employment contracts from the ambit of the Act and that therefore the traditional rules of statutory interpretation are inapplicable because their use would frustrate obvious Congressional intent. In contrast to the majority‘s approach to statutory interpretation, I believe that we have an obligation to first analyze the text and structure of the FAA before turning to extrinsic material. Only if these inquiries prove unhelpful in discerning Congressional intent should we engage in the majorities’ rather complex exercise in statutory interpretation. See, e.g., Shannon v. United States, 512 U.S. 573, 584, 114 S.Ct. 2419, 129 L.Ed.2d 459 (1994); Amoco Production Co. v. Village of Gambell, 480 U.S. 531, 542, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987); United States v. Taylor, 487 U.S. 326, 108 S.Ct. 2413, 101 L.Ed.2d 297 (1988) (Scalia, J., concurring in part).
The plain language of the exclusionary clause states that the Act does not “apply to contracts of employment of seamen, railroad employees, or any other class of worker engаged in foreign or interstate commerce.”
The “cardinal principal of statutory construction” instructs that a court has a “duty to give effect, if possible, to every clause and word of a statute.” Bennett v. Spear, 520 U.S. 154, 173, 117 S.Ct. 1154, 137 L.Ed.2d
As the majority notes, the rule of ejusdem generis also suggests that
Congress’ phraseology in
By utilizing the traditional tools of statutory construction, the plain meaning of the exclusionary clause becomes clear: employment contracts for seamen, railroad workers, and other workers actually involved in the flow of commerce are excluded from the scope of the FAA. “The plain meaning of legislation should be conclusive, except in the rare case in which the literal application of a statute will produce a result demonstrably at odds with the intention of its drafters.” United States v. Ron Pair Enters., 489 U.S. 235, 243, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989).
The majority finds that this is one of the rare cases in which the traditional rules of statutory construction are inapplicable because their use would defeat the “obvious scope and purpose” of the exclusionary clause. The majority, however, does not find the indicia of congressional intent in either the text or structure of the Act. Rather, it divines from the historical context and legislative history that Congress clearly intended that the Act would apply only to commercial disputes and not to labor disputes. I disagree. Even assuming that the scant legislative history can be read to support such an interpretation, I agree with the D.C. Circuit that “[i]n a case such as this, where the statutory text does not admit of serious ambiguity, . . . legislative history is, at best, secondary and at worst irrelevant.” Cole, 105 F.3d at 1472 (citing Davis v. Michigan Dep‘t of Treasury, 489 U.S. 803, 808-809 n. 3, 109 S.Ct. 1500, 103 L.Ed.2d 891 (1989)).
For the foregoing reasons, I would find that, because Craft does not work in interstatе commerce, this court has jurisdiction to