United States Court of Appeals

for the Fifth Circuit

No. 19-50047

Frank Sabatelli, on behalf of himself and on behalf of all 

others similarly situated, 

Plaintiff—Appellant,

versus

Baylor Scott & White Health; Scott & White Clinic, 

Defendants—Appellees.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:16-CV-596

Before Owen, Chief Judge, and Haynes and Costa, Circuit Judges.

Per Curiam:*

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

October 21, 2020

Lyle W. Cayce

Clerk

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Frank Sabatelli was forced to resign from his job as a radiologist. He 

brought claims of age and disability discrimination in federal court. The 

district court rejected those claims at the summary judgment stage. 

Meanwhile, long after he brought this suit, Sabatelli filed an arbitration 

demand claiming that his forced termination violated the terms of his 

employment agreement. But the district court held that he could not pursue 

that arbitration after having first brought this lawsuit. We affirm the merits 

rulings on the discrimination claims and conclude that Sabatelli waived his 

right to arbitrate. 

I.

Frank Sabatelli began working as a radiologist for the Scott & White 

Clinic (SWC) in the Baylor Scott & White Medical Center when he was 52. 

Sabatelli’s employment contract gave SWC authority to terminate him on 

60-days’ written notice if two-thirds of the board found he was “perceived 

as uncooperative, difficult to get along with,” or “incompatible” with 

coworkers. It also required that “[a]ny controversies, disputes or claims 

arising out of or relating to this Agreement, or breach thereof” be “resolved 

solely by arbitration.” It would not take long for controversy about his 

employment to arise. 

We recite the history of Sabatelli’s employment at the hospital in the 

light most favorable to him given the summary judgment posture. See Wease 

v. Ocwen Loan Serv., L.L.C., 915 F.3d 987, 992 (5th Cir. 2019). But on any 

account, his two-year tenure did not go well.

Coworkers frequently complained about Sabatelli, describing him as 

“consistently hostile,” “difficult to work with,” and “demeaning.” He 

made two colleagues cry. And several doctors spoke to him about complaints 

that he had “either yelled at or belittled [others] in a condescending 

manner.” While Sabatelli cannot dispute that these complaints were made, 

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he disputes the underlying characterization of his conduct and says that the 

interpersonal issues were not his fault.1

 

Yet even Sabatelli acknowledges he had disagreements with nurse

Jennifer Varner and technician Matt Alvarado. He believed that they were 

not only unprofessional, but also ageist. For instance, Varner once called 

Sabatelli an “old fart,” and Alvarado said that he “was getting old and 

forgetful like [Sabatelli].” Sabatelli also said that Varner implied he, unlike 

the rest of the staff, was “old dead wood.” To make things worse, Sabatelli 

had “routine conflicts” with Varner and Alvarado’s supervisor. And 

although Sabatelli’s own supervisor was normally courteous, the supervisor 

said several times that Sabatelli’s medical terminology was an “old thing” 

from his “generation.”

After dealing with these conflicts for two years, Dr. Rob Watson—

SWC’s chief medical officer and the person who had hired Sabatelli—met 

with Sabatelli and gave him the option of resigning or being terminated. 

Sabatelli remembers Watson saying during the meeting that he “d[id]n’t 

know what [Sabatelli was] discussing with [his] psychiatrist.” He also claims 

that Watson gave him no explanation for the decision. Watson, on the other 

hand, says he explained that Sabatelli had “continue[d] to have an abrasive 

personality” despite being counseled on his interpersonal problems. 

Whatever was said, all agree Sabatelli resigned the next day. SWC hired a 

doctor in his early forties to replace Sabatelli.

Sabatelli sued SWC in federal court, alleging that his forced 

resignation violated the Age Discrimination in Employment Act (ADEA) and 

1 Several doctors testified that they had not seen Sabatelli be argumentative or 

inappropriate in the workplace. And a former radiology manager testified that Sabatelli did 

not yell at or belittle other employees.

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Americans with Disabilities Act (ADA).2 SWC denied those allegations and 

noted that the claims fell within the employment agreement’s broad 

arbitration provision. Yet no one moved to compel arbitration at the pleading 

stage. Nor did anyone seek arbitration during discovery, which culminated 

in SWC filing a summary judgment motion.

Sixteen months into the lawsuit, with summary judgment pending, 

Sabatelli filed an arbitration demand. He did not want to arbitrate the 

discrimination claims. He instead alleged for the first time that SWC 

breached the employment agreement by not giving him proper notice before 

terminating him. SWC asked the arbitrator to dismiss on the ground that 

Sabatelli had waived his right to arbitrate the breach-of-contract issue by 

litigating his discrimination claims for over a year.

Back in federal court, the district court granted SWC’s motion for 

summary judgment on the discrimination claims. Meanwhile, the arbitrator 

denied SWC’s motion to dismiss and stayed proceedings until the federal suit 

was completed.

SWC then filed a motion arguing that arbitration was not available on 

the contract theory because Sabatelli had been pursuing his lawsuit for more 

than a year. The court ruled in SWC’s favor, holding that Sabatelli could not 

split his claims by pursuing some in court and a related one in arbitration. 

II.

We first review the district court’s summary judgment dismissal of 

the discrimination claims. Sabatelli tried to get his age discrimination claim 

to trial using circumstantial evidence. There is a prima facie case of age 

2 Sabatelli styled the suit as a class action on behalf of terminated SWC employees 

over 40, but he never moved to certify that class.

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discrimination because he was qualified for the position and replaced by 

someone younger. See Jackson v. Cal-Western Packaging Corp., 602 F.3d 374, 

378 (5th Cir. 2010). But the hospital says it constructively terminated 

Sabatelli because of his poor treatment of staff and failure to improve those 

relationships after being told of the problem. An inability to get along with 

coworkers, whoever is at fault for the problem, is a nondiscriminatory 

justification. Shackelford v. DeLoitte & Touche, LLP, 190 F.3d 398, 408 (5th 

Cir. 1999). So as is often the case with the McDonnell Douglas framework for 

evaluating a circumstantial case of discrimination, Sabatelli’s ability to get to 

a jury depends on whether he can produce evidence that the hospital’s 

reasons were pretextual. Jackson, 602 F.3d at 378–79.

We agree with the district court that there is not a fact dispute on 

pretext or the ultimate question of causation. Id. SWC did not give 

inconsistent reasons for terminating his employment. Its story has never 

changed: Sabatelli created workplace conflicts and refused to change his 

behavior. SWC’s failing to give Sabatelli 60-days written notice of his 

termination does not negate that, especially because he chose to resign in lieu 

of termination. See EEOC v. Tex. Instr. Inc., 100 F.3d 1173, 1182 (5th Cir. 

1996). And while Sabatelli tries to use the discriminatory comments of 

Varner and Alvarado under a “cat’s paw” theory, he has not shown that they 

exercised any leverage over Watson, who belongs to the same protected age 

group as Sabatelli. Harville v. City of Houston, 935 F.3d 404, 413 n.30 (5th 

Cir. 2019); Reed v. Neopost USA, Inc., 701 F.3d 434, 441–42 (5th Cir. 2012). 

A comment from Watson is the basis for Sabatelli’s ADA claim. 

Sabatelli contends that Watson perceived him as mentally impaired—and 

discriminated against him on that basis—because Watson told him during the 

termination meeting that “I don’t know what you’re discussing with your 

psychiatrist.” That is too thin a statement to support a claim of direct 

discrimination, which is how Sabatelli tries to prove his ADA claim. The 

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statement does not refer to the decision to let Sabatelli go, so the factfinder 

must make an inferential leap that Watson fired Sabatelli because he viewed 

him as mentally impaired. Without more, that statement is not direct 

evidence of disability discrimination. See Reed, 701 F.3d at 441 (citing Brown 

v. CSC Logic, Inc., 82 F.3d 651, 655–56 (5th Cir. 1996)).

Sabatelli’s discrimination claims fail.

III.

That brings us to the trickier part of this case. Having filed this lawsuit 

to pursue the discrimination claims, could Sabatelli later arbitrate his 

contract claim? 

We first note that when some claims are arbitrable and others are not, 

it is not unusual to have separate litigation before an arbitrator and a judge. 

See, e.g., Hebbronville Lone Star Rentals, L.L.C. v. Sunbelt Rentals Indus. 

Servs., L.L.C., 898 F.3d 629, 631, 636 (5th Cir. 2018); Jones v. Halliburton 

Co., 583 F.3d 228, 230, 242 (5th Cir. 2009). That makes sense because 

“arbitration is a matter of contract.” Rent-A-Center, W., Inc. v. Jackson, 561 

U.S. 63, 67 (2010). It is a way to resolve “disputes—but only those 

disputes—that the parties have agreed to submit to arbitration.” First 

Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 943 (1995). Indeed, the Supreme 

Court has recognized that “piecemeal litigation” may result when there are 

“multiple claims, some arbitrable and some not.” KPMG LLP v. Cocchi, 565 

U.S. 18, 19 (2011) (per curiam) (citing Dean Witter Reynolds Inc. v. Byrd, 470 

U. S. 213, 217 (1985)). So nothing we say should be read to govern a situation 

when only some claims are arbitrable. 

 But that is not the situation here. All of Sabatelli’s claims are subject 

to arbitration. He agreed to arbitrate “any . . . claims arising out of or relating 

to this Agreement, or breach thereof.” That broad language easily covers 

both his discrimination and contract claims. See Gilmer v. Interstate/Johnson 

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Lane Corp., 500 U.S. 20, 23, 35 (1991); Begole v. N. Miss. Med. Ctr., Inc., 761 

F. App’x 248, 250 (5th Cir. 2019) (per curiam). Sabatelli does not contend 

otherwise. 

Despite the arbitration agreement, Sabatelli filed this suit in federal 

court. The suit was allowed to proceed once SWC decided to fight the case 

on the merits rather than compel arbitration. See In re Mirant Corp., 613 F.3d 

584, 587–89, 592 (5th Cir. 2010). Arbitration can be waived. Nicholas v. 

KBR, Inc., 565 F.3d 904, 907 (5th Cir. 2009). That is what SWC did in not 

seeking to arbitrate this case after it was filed in federal court. It now 

contends that Sabatelli’s bringing of this lawsuit likewise amounted to a 

waiver of the arbitration clause.3

 

Waiver of arbitration by litigation conduct—as opposed to an express 

waiver—is not something we take lightly. Because the Federal Arbitration 

Act advances a “liberal federal policy” in favor of arbitration, there is a 

presumption against implied waiver. Moses H. Cone Mem’l Hosp. v. Mercury 

Constr. Corp., 460 U.S. 1, 24 (1983); Miller Brewing Co. v. Ft. Worth Distrib. 

Co., 781 F.2d 494, 496–97 (5th Cir. 1986). The presumption, though, is not 

insurmountable. A party waives the right to arbitrate by “substantially 

invoke[ing] the judicial process” to the “detriment or prejudice” of the other 

side. Miller Brewing, 781 F.2d at 497. 

3 Defendants argued waiver in the district court, though the court ruled on the 

alternative argument of claim splitting. We can affirm on “any legal ground in the record.” 

See Sanders v. United States, 736 F.3d 430, 435 (5th Cir. 2013) (citations omitted). And 

waiver of arbitration based on litigation conduct is an issue for the court, rather than the 

arbitrator, to decide. Vine. v. PLS Fin. Srvs., Inc., 689 F. App’x 800, 802–03 (5th Cir. 2017). 

That is because “litigation-conduct waiver ‘implicates courts’ authority to control judicial 

procedures or to resolve issues . . . arising from judicial conduct.’” Id. at 803 (quoting 

Ehleiter v. Grapetree Shores, Inc., 482 F.3d 207, 219 (3d Cir. 2007)). 

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Arbitration waiver is usually asserted against defendants who try out 

federal court before seeking to arbitrate. See, e.g., Forby v. One Techs., 909 

F.3d 780 (5th Cir. 2018); Mirant Corp., 613 F.3d at 584; Petroleum Pipe 

Americas Corp. v. Jindal Saw, Ltd., 575 F.3d 476 (5th Cir. 2009). That makes 

sense. It is unusual for the plaintiff who filed the court action to later want to 

pursue arbitration. Indeed, we appear to have only one case involving a 

waiver claim against a plaintiff who tried to arbitrate while the lawsuit she 

filed was still pending. Nicholas, 565 F.3d at 907. The impetus for the 

plaintiff’s change of heart in Nicholas was removal to federal court, so she was 

no longer in her desired forum. Id. at 906–07. 

In this circumstance, when the plaintiff is the reason there is a lawsuit 

in the first place, the first requirement for implied waiver will generally be 

satisfied. “[S]hort of directly saying so in open court, it is difficult to see how 

a party could more clearly ‘evince a desire to resolve a dispute through 

litigation” than filing a lawsuit. Id. at 908 (citing Gulf Guar. Life Ins. Co. v. 

Connecticut General Life Ins. Co., 304 F.3d 476 484 (5th Cir. 2002)). As a 

general matter, then, Sabatelli substantially invoked the judicial process by 

filing this lawsuit (and then litigating it for 16 months before trying to 

arbitrate).

The twist is that Sabatelli did not pursue the breach-of-contract theory

when he filed the suit. Waiver applies only if the litigated claim is the 

“specific” claim the party seeks to arbitrate. Republic Ins. Co. v. PAICO 

Receivables LLC, 383 F.3d 341, 344 (5th Cir. 2004) (citing Subway Equip. 

Leasing Corp. v. Forte, 169 F.3d 324, 328 (5th Cir. 1999). So what is a claim 

in this context?

As we have said in another context, a “claim” is any allegation 

stemming from the “same nucleus of operative facts,” whatever the theory 

of recovery. See ASARCO, L.L.C. v. Mont. Res. Inc., 858 F.3d 949, 956 (5th 

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Cir. 2017). Sabatelli’s claims all related to the same event—his allegedly 

wrongful termination—between the same parties. Our earlier evaluation of 

age discrimination shows the factual overlap. Sabatelli has argued that 

SWC’s failure to follow the employment agreement’s notice procedures

demonstrates that SWC’s nondiscriminatory explanation is pretextual. 

Because the theory he seeks to arbitrate involves the same nucleus of 

operative facts as the ones he pursued in federal court, and his own 

arguments create an overlap between the two theories of recovery, Sabatelli 

invoked the judicial process for the claim he now seeks to arbitrate.

Turning to the second waiver requirement, Sabatelli’s filing of this 

lawsuit prejudiced SWC. “Delay, expense, and damage to a party’s legal 

position” can constitute prejudice. Nicholas, 565 F.3d at 910. Sabatelli 

delayed resolution of the case by litigating only his discrimination theories 

while keeping his breach-of-contract theory on the back burner. The delay of

sixteen months was significant. See PAICO Receivables, 383 F.3d at 347; Price 

v. Drexel Burnham Lambert, Inc., 791 F.2d 1156, 1159–60 (5th Cir. 1986). And 

it would be much more costly for SWC to defend an arbitration after already 

defending a case in court. If SWC had known that Sabatelli planned to 

arbitration the contract claim, it could have sought to resolve the entire case 

in one arbitration. 

Just as we have held for defendants who test the waters of federal court 

litigation before trying to arbitrate, Sabatelli should not get a “second bite at 

the apple through arbitration” after he chose to litigate his termination in 

federal court. See Mirant, 613 F.3d at 590 (citations omitted). 

* * *

We AFFIRM the judgment of the district court.

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