Brooks v. Cintas Corp

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
January 12, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-20719
Summary Calendar
NICHOLAS D. BROOKS,
Plaintiff-Appellant,
versus
CINTAS CORPORATION
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-02-CV-2736
--------------------
Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Nicholas Brooks appeals from two district court orders. The
first stayed and administratively closed his employment
discrimination case against Cintas Corporation pending
arbitration, and the second denied his motion to reconsider the
arbitrator’s award of no damages.
Cintas hired Brooks in 1995. On August 19, 1999, in
connection with a promotion, Brooks signed an employment

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agreement with Cintas that compelled, in the event of an
employment dispute, a good faith attempt at resolution by
conference followed by binding arbitration. Brooks was promoted
in March, 2001 to Service Sales Representative (SSR). As an SSR,
Brooks delivered bathroom supplies and floor mats to Cintas
customers. Cintas management discovered in June that Brooks
charged one of Cintas’s customers for goods and services he did
not deliver and that he regularly obtained invoice signatures
from unauthorized customer representatives or even signed
invoices himself. Brooks demonstrated that these were common
practices of Cintas SSRs, who often were sent to customers with
insufficient supplies, were not given enough time to perform all
requested services, and worked at hours when authorized
representatives were often unavailable.
Several days after Cintas’s discovery of Brooks’s poor
performance and unauthorized signatures, Brooks complained to
Cintas management that he was due a commission that had been
given to a white employee. Two days later, Cintas fired Brooks.
Brooks was replaced by an African-American man.
Brooks filed a race-discrimination complaint with the Equal
Employment Opportunity Commission. The EEOC invited Brooks and
Cintas to participate in an EEOC-sponsored mediation, but Cintas
declined. Brooks filed suit in the district court, alleging that
Cintas discriminated against him based on race and retaliated
against him for demanding a commission in violation of Title VII

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of the Civil Rights Act of 1964. The district court stayed the
case pending arbitration and administratively closed the case.
At arbitration, several former and current Cintas employees
testified that Cintas supervisors told racial jokes. One witness
testified that Brooks’s supervisor was a racist and made racist
jokes.
After a two-day hearing, the arbitrator determined that
“Brooks was fired because of poor service and improper invoicing
procedures. Cintas’s decision to fire him, and not to fire other
employees, appears to have been a purely business decision,
devoid of racial undertones or motivation.” The court denied
Brooks’s motion to open the administratively closed case.
We have jurisdiction, as the district court ordered
arbitration, closed the case, and denied the motion to review the
arbitration award. See American Heritage Life Ins. Co. v. Orr,
294 F.3d 702, 707-08 (5th Cir. 2002) (holding that where a
district court compels arbitration, stays proceedings, and closes
a case or where it decides the merits and retains jurisdiction
only to enforce an arbitration award, the order is a final,
appealable judgment).
Review of the decision to compel arbitration is de novo.
Catholic Diocese of Brownsville v. A.G. Edwards & Sons, Inc., 919
F.2d 1054, 1056 (5th Cir. 1990). Review of the decision to
vacate or confirm an arbitration award is also de novo. Prestige

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Ford v. Ford Dealer Computer Svcs., Inc., 324 F.3d 391, 393 (5th
Cir. 2003).
To decide whether to compel arbitration, a district court
must first determine if the parties agreed to arbitrate the
dispute in question. OPE Int’l LP v. Chet Morrison Contractors,
Inc., 258 F.3d 443, 445 (5th Cir. 2001). Next a court must
examine “whether legal constraints external to the parties’
agreement foreclose[] the arbitration of those claims.”
Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473
U.S. 614, 628 (1985). Brooks concedes on appeal that he agreed
to arbitrate the dispute in question. He argues, though, that
Cintas’s refusal to confer with him or mediate the dispute
constituted a waiver of the arbitration provision. Cintas’s
alleged refusal would have been a breach of the employment
agreement, which should have been presented to the arbitrator
even if it amounted to waiver. See Moses H. Cone Mem’l Hosp. v.
Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983) (“any doubts
concerning the scope of arbitrable issues should be resolved in
favor of arbitration, whether the problem at hand is the
construction of the contract language itself or an allegation of
waiver, delay, or a like defense to arbitrability”).
Furthermore, Cintas’s breach would not have been a “legal
constraint[] external to the parties’ agreement,” so it would not
have barred arbitration. The district court did not err in
compelling arbitration.

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1The only other grounds on which a district court may vacate
an arbitrator’s award are the following: the award was procured
by corruption, fraud, or undue means; the arbitrator was guilty
of misconduct; the arbitrator exceeded his powers; or the
arbitrator acted with manifest disregard for the law. See id.;
Harris v. Parker College of Chiropractic, 286 F.3d 790, 792 (5th
Cir. 2002).
Brooks argues the arbitrator was biased because he did not
consider evidence that would have supported Brooks’s claims.
Review of an arbitration award is “extraordinarily narrow.”
Gateway Tech.s, Inc. v. MCI Telecomm.s Corp., 64 F.3d 993, 996
(5th Cir. 1995). A court may vacate an award if there is
evidence of partiality or corruption by the arbitrator. 9 U.S.C.
§ 10(a)(2). A court may not reverse based solely on legal or
factual error.1 United Paperworkers Int’l Union, AFL-CIO v.
Misco, Inc., 484 U.S. 29, 38 (1987). Arbitrators must give each
party an adequate opportunity to present evidence and arguments,
but they need not hear all of the evidence tendered by the
parties. Prestige Ford, 324 F.3d at 395. Here the arbitrator
heard Brooks’s evidence and mentioned it in his recitation of
facts. His decision not to credit that evidence is not
reviewable. Brooks has not shown partiality or corruption. The
district court did not err in denying Brooks’s motion to reopen
the case to reconsider the arbitration award.
AFFIRMED.

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