* 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that this opinion should not be published and is not precedent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

FILED

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
No. 03-20719

-2-

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
No. 03-20719

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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
No. 03-20719

-4-

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.
No. 03-20719

-5-

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.