FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

July 16, 2009

THOMAS K. KAHN

CLERK

 [DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-10709

Non-Argument Calendar

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D. C. Docket No. 08-00217-CV-FTM-99-SPC

LUIS JIMENEZ, 

individually, 

Plaintiff-Appellant,

versus

COLLIER TRANSIT MANAGEMENT, INC., 

a Florida corporation, 

Defendant-Appellee.

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(July 16, 2009)

Before BLACK, BARKETT and KRAVITCH, Circuit Judges.

PER CURIAM:
Luis Jimenez appeals the district court’s order granting summary judgment

to Collier Transit Management, Inc. (“Collier”). Jimenez initiated this breach of

collective bargaining agreement action after he was terminated from his

employment on October 17, 2007. Because we agree with the district court that

Jimenez failed to exhaust his remedies as set forth in the collective bargaining

agreement, we affirm.

BACKGROUND

Prior to October 2007, Jimenez worked for Collier as a bus driver and was a

member of Local 500 of the Transport Workers Union of America, AFL-CIO (the

“union”). A collective bargaining agreement (“the agreement”) entered into

between the union and Collier covered Jimenez’s employment at Collier.

The agreement outlines a grievance procedure through which an employee

who believes that he has been discharged without just cause may have his case

reviewed. The agreement’s grievance procedure consists of a two-step process. 

Step I states:

The grievance shall be presented to the Company within seven (7)

days of the alleged grievance. The grievance shall be discussed by

the supervisor, the aggrieved employee, and the aggrieved

employee’s steward who shall represent the employee, if the

employee so desires, in an earnest attempt to settle the matter. The

supervisor shall evaluate the grievance or complaint and render a

decision.

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Step 2 states:

If not settled in Step I, the grievance shall be submitted in writing to

the General Manager within ten (10) days after the Unions’s receipt

of the Step I reply. A meeting between the General Manager, the

aggrieved employee, and the aggrieved employee’s steward who shall

represent the employee if the employee so desires, shall be held

within seven (7) days following the Company’s receipt of the written

grievance. A reply in writing shall be mailed by the General Manager

to the Shop Steward of the Local Union, with a copy to the employee,

no later than five (5) days after the Step II meeting.

Article 9, Section A of the agreement further provides that “[s]hould any

grievance remain unsettled after exhausting the aforementioned [grievance]

procedure, either party hereto shall, if the party desires, demand arbitration . . .

Otherwise the grievance shall be considered settled.”

Additionally, Section D of Article 9 of the agreement provides that certain

rights reserved to management are not subject to arbitration. Article 2 reserves

certain rights to the company “to manage its business” which includes the right “to

discipline and discharge employees for just cause.”

On October 16, 2007, Jimenez was convicted of misdemeanor assault and

battery arising out of a dispute with a neighbor. The next day Jimenez was

discharged from his employment at Collier. Collier informed him that it

characterized his discharge as one done for “just cause.” In a letter dated October

26, 2007, Jimenez’s General Manager at Collier, Elizabeth Suchsland, informed

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Jimenez that his employment was terminated because (1) the court-imposed

sentence would prevent him from reporting for work and (2) the nature of his

criminal misconduct “call[ed] into question [his] ability to perform as an employee

without exposing members of the riding public . . . to unacceptable risks.” The

letter also thanked Jimenez for “coming to see” Suchsland about his termination.

Jimenez filed suit in the U.S. District Court for the Middle District of

Florida claiming Collier breached the agreement. His amended complaint alleged

that Collier breached the agreement by (1) wrongfully discharging him where the

incident giving rise to his misdemeanor conviction was unrelated to his

employment and (2) failing to provide Jimenez with the right to arbitration. 

Specifically, Jimenez alleged that certain provisions of the agreement itself denied

him the right to arbitration given in other provisions. Jimenez asserted that the

language of Article 2 when read together with Section D of Article 9 removes

decisions regarding termination for just cause from the arbitration provision, and

that this language thereby put Collier in breach of the agreement.

Collier filed a motion for summary judgment, arguing that Jimenez was not

entitled to bring a lawsuit because he had not exhausted the grievance procedures

provided in the agreement. Jimenez responded that he had exhausted the

procedures. Jimenez contended that he satisfied Step I by contacting the General

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Manager “after being fired to dispute and discuss the firing.” Jimenez argued that

this satisfied the requirement that he present his grievance to Collier through his

supervisor when he contacted Suchsland because she had “made herself the ‘goto-person’ regarding [Jimenez’s] misdemeanor issue” by writing him a letter of

warning after he was charged with the crime. As for Step II, wherein the

employee is required to submit a written grievance after which a meeting will be

held between the General Manager, the aggrieved employee, and the aggrieved

employee’s steward, Jimenez asserted that he satisfied this requirement by

verbally contacting the General Manager a second time. He argues that this

second contact satisfies Step II because Suchsland’s letter demonstrates that

requesting a meeting would be “futile” as Suchsland had made up her mind to fire

Jimenez in June when he was charged with the misdemeanor.

The district court found that Jimenez had failed to exhaust the agreement’s

grievance procedures and that no exception for futility applied. Accordingly, the

district court granted Collier’s motion for summary judgment. Jimenez appealed.

STANDARD OF REVIEW

“We review the district court’s grant of summary judgment de novo,

applying the same legal standards that bound the district court, and viewing all

facts and reasonable inferences in the light most favorable to the nonmoving

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party.” Cruz v. Publix Super Markets, Inc., 428 F.3d 1379, 1382 (11th Cir. 2005)

(citation and quotation omitted). Summary judgment is appropriate where “there

is no genuine issue as to any material fact and . . . the moving party is entitled to a

judgment as a matter of law.” Fed. R. Civ. P. 56(c).

DISCUSSION

“An employee seeking a remedy for an alleged breach of the collectivebargaining agreement between his union and employer must attempt to exhaust

any exclusive grievance and arbitration procedures established by that agreement

before he may maintain a suit against his union or employer under § 301(a) of the

Labor Management Relations Act, 1947, 61 Stat. 156, 29 U.S.C. § 185(a).”

Clayton v. Int’l Union, United Auto., Aerospace, and Agr. Implement Workers of

Am., 451 U.S. 679, 681 (1981) (citing Republic Steel Corp. v. Maddox, 379 U.S.

650, 652-53 (1965)). If he does not exhaust those remedies or does not participate

in arbitration where required under the agreement, the employee may not pursue

relief in the courts. Republic Steel, 379 U.S. at 657-58.

Here, the parties dispute whether Jimenez exhausted his remedies under the

agreement. Jimenez’s main argument is that he was not required to arbitrate the

question of his wrongful termination because the arbitration agreement, under

Article 2 and Section D of Article 9, does not provide for arbitration where

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management has exercised its right to terminate an employee for just cause. 

Although Jimenez couches this argument in language of “futility,” his real

argument is that the arbitration agreement does not actually provide for arbitration

where the management exercises its right to discharge an employee for just cause.

We find no support in the language of the agreement for Jimenez’s strained

reading that claims for wrongful discharge are removed from the grievance and

arbitration requirements. Section C of Article 9 of the agreement states that

grievances for “alleged violations of the Agreement” are subject to the grievance

procedure and arbitration clauses. The only stated cause of action in Jimenez’s

complaint is for breach of the collective bargaining agreement. Jimenez’s claim is

thus clearly covered by the agreement, and Jimenez was required to submit his

claim to the grievance process and arbitration before pursuing a judicial remedy.

Furthermore, the agreement provides in Article 9, Section C that arbitration

shall be used to resolve questions regarding “the interpretation or application of

particular clauses of this Agreement.” Jimenez’s questions about whether the

management rights provision exempts a wrongful discharge claim from the

arbitration requirement should have been raised first through the grievance

procedure. As there is no evidence that Jimenez did so, he cannot circumvent the

agreement by bringing this lawsuit.

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Additionally, Jimenez’s argument that he substantially complied with the

grievance procedure fails. Step II clearly requires the submission of a grievance in

writing. Jimenez acknowledges that he did not submit a written grievance, but

argues that verbally contacting Suchsland satisfied that requirement. Nothing in

the agreement implies that substantial compliance will suffice. Furthermore, even

if substantial compliance with Step II was permitted under the agreement, Jimenez

did not submit – nor even attempt to submit – his grievance to arbitration, which is

clearly a part of the grievance process established in the agreement. Thus, he

clearly failed to exhaust his administrative remedies prior to initiating this lawsuit.

Jimenez next argues that it would have been futile to pursue his claim

through the grievance process because Suchsland had clearly made up her mind to

terminate Jimenez. “Futility” provides a proper excuse for failing to exhaust

remedies set forth in a bargaining agreement. Pyles v. United Air Lines, Inc., 79

F.3d 1046, 1053 (11th Cir. 1996) (“[A]n exception to the exhaustion requirement

exists for situations where proceeding with administrative remedies would be

‘wholly futile.’”). The futility exception, however, requires more than that the

grievance procedures be unpromising. “The test for ‘futility’ is not . . . whether

the employees’ claims would succeed, but whether the employees could have

availed themselves of the grievance procedure.” Mason, III v. Continental Group,

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Inc., 763 F.2d 1219, 1224 (11th Cir. 1985). To claim futility, the “employee may

not simply assert that his use of the grievance procedures would have been futile:

he must ordinarily at least have attempted to use them.” Parham v. Carrier Corp.,

9 F.3d 383, 390-91 (5th Cir. 1992) (citing Vaca v. Sipes, 386 U.S. 171, 184-85

(1967)). Jimenez did not allege that he attempted to invoke the grievance

procedures and that he was denied meaningful relief. Rather, he argues simply

that it would have been unsuccessful because the General Manager had already

made up her mind to fire him and because she had already participated in some

form of meeting, obviating the need for a formal meeting under Step II. This

assertion does not excuse Jimenez for failing to exhaust his remedies or puruse

arbitration as required under the agreement on the basis of futility. 

Jimenez also argues that Collier “repudiated” his efforts to go through the

grievance procedures. Jimenez, however, did not raise this argument before the

district court and therefore we will not assess the merits of this assertion. See

Iraola & CIA, S.A. v. Kimberly-Clark Corp., 325 F.3d 1274, 1284-85 (11th Cir.

2003). Jimenez’s citation to two cases that happened to discuss repudiation did

not preserve that argument for review on appeal. Jimenez cited to Larsen v.

AirTran Airways, Inc., 2007 WL 2320592 (M.D. Fla., Aug. 10, 2007) and Durham

Life Ins.Co. v. Evans, 1994 WL 447406 (E.D. Pa. Aug. 19, 1994) in his discussion

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of futility. The fact that these cases also separately mention repudiation does not

support Jimenez’s contention that he argued the issue of repudiation before the

district court. Although Jimenez’s parenthetical regarding Durham did refer to

repudiation, a brief reference in a parenthetical is insufficient to preserve an

argument. See Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n.6

(11th Cir. 1989) (noting that arguments made in passing on appeal are

“insufficient to present the matter for adjudication”).1

CONCLUSION

Because Jimenez failed to exhaust his administrative remedies under the

operative collective bargaining agreement and did not establish a lawful excuse for

such failure, we AFFIRM the district court’s order granting summary judgment to

Collier.

 Regardless of whether Jimenez raised a repudiation defense to his failure to exhaust 1

administrative remedies in the court below, he would not obtain relief through this doctrine. In

order to argue that Collier repudiated the grievance process, he would have to show that he

attempted to utilize those procedures. Redmond v. Dresser Industries, Inc., 734 F.2d 633, 636

(11th Cir. 1984) (“[B]efore [the plaintiff] can assert repudiation of the grievance procedure, he

must first file his grievance.”). As discussed supra, Jimenez never attempted to file a written

grievance or submit his claim to arbitration.

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