*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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

Nos. 01-40057 and 01-40462

Summary Calendar

 

RONALD G. DODDS,

Plaintiff-Appellant,

versus

HALLIBURTON ENERGY SERVICES, INC.

Defendant-Appellee.

LUIS PICOT,

Plaintiff-Counter

Defendant-Appellant,

versus

HALLIBURTON ENERGY SERVICES, INC.

Defendant-Counter

Claimant–Appellee.

 

Appeals from the United States District Court

For the Southern District of Texas

(V-00-CV-71 & V-00-CV-96)

 

August 29, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*
1 29 U.S.C. § 626 et seq.

2 9 U.S.C. § 16(a)(3). See Green Tree Fin. Corp.–Ala. v. Randolph, 531

U.S. 79, 85-87 (2000).

2

Ronald Dodds and Luis Picot appeal the district court’s

dismissal and order to compel arbitration of their claims under the

Age Discrimination in Employment Act (ADEA).1 We have jurisdiction

as this is an appeal from a “final decision with respect to an

arbitration.”2 Because Appellants’ claims cannot succeed under

controlling precedents of this Court and Texas law, we affirm.

I

Luis Picot and Ronald Dodds were both employed at the

Victoria, Texas facility of Halliburton Energy Services

(“Halliburton”). Both were terminated shortly before their

pensions would have vested. Picot was 56 years old when he was

terminated; Dodds was 50. The same year that they were terminated,

Halliburton adopted the “Halliburton Dispute Resolution Program”

(DRP) for handling employee grievances and disputes. Halliburton

sent notice and details of the DRP to its employees and indicated

that employees who continued to work at Halliburton after the DRP’s

effective date of January 1, 1998, would have accepted the DRP,

which required all legal claims against Halliburton to be resolved

through its procedures.

Picot and Dodds, after their respective terminations, filed

suit under the ADEA, claiming that they were terminated in order to

avoid the vesting of their pensions with Halliburton. The district
3 Local 1351 Int’l Longshoremen’s Ass’n v. Sea-Land Serv., Inc., 214 F.3d

566, 569 (5th Cir. 2000).

4 29 U.S.C. § 626(f)(1).

5 Id.

6 The notice, for example, did not “advise [employees] in writing to

consult with counsel.” 29 U.S.C. § 626(f)(1)(E). Halliburton remarks that

notice of the DRP complied with some of the OWBPA’s requirements, but the plain

text and the Court’s decision in Oubre v. Entergy Operations, Inc., 522 U.S. 422

(1998), require strict compliance.

3

court in both cases granted Halliburton’s motion to compel

arbitration and dismissed the claim.

II

We review a district court’s order to compel arbitration de

novo.

3

Appellants first argue that the DRP represents a “waiver”

of their age discrimination claims and does not satisfy the Older

Worker’s Benefit Protection Act’s (OWBPA) requirements for such a

waiver. The OWBPA provides that “[a]n individual may not waive

any right or claim under this chapter unless the waiver is

knowing and voluntary.”4 The OWBPA then delineates the “minimum”

requirements of such a waiver including, among other things, that

such a waiver be in writing, that it be between the individual

and the employer, and that it specifically refer to rights or

claims arising under the ADEA.5 Halliburton’s notice with

respect to the DRP does not comply with all of these requirements

of the OWBPA.6
7 56 F.3d 656 (5th Cir. 1995) (Higginbotham, J.).

8 Id. at 660-61 (“We recognize that Congress, through the OWBPA, has

protected terminated employees who waive their substantive rights under ADEA in

exchange for a more favorable severance package; however, we find no clear

indication that Congress was likewise concerned with protecting employees who

agree to arbitrate claims that may arise during the course of their

employment.”). The First and Third Circuits have agreed with this approach. See

Rosenberg v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 170 F.3d 1, 12-13 (1st

Cir. 1999); Seus v. John Nuveen & Co., 146 F.3d 175, 181-82 (3d Cir. 1998). But

see Duffield v. Robertson Stephenson & Co., 144 F.3d 1182, 1190 n. 4 (9th Cir.

1998) (remarking that “current ADEA claims may require different treatment” from

those arising before the enactment of the OWBPA).

9 522 U.S. 422 (1998).

4

This Court, in Williams v. CIGNA Financial Advisors, Inc.,

7

previously determined that the OWBPA’s requirement of knowing and

voluntary waiver does not apply to arbitration agreements but

instead is directed at severance agreements and releases.8 Thus,

under Williams, the DRP is not subject to the requirements of the

OWBPA and Appellants must pursue their remedies through the DRP.

Appellants argue, however, that Williams has been

effectively overruled by the Supreme Court’s decision in Oubre v.

Entergy Operations, Inc.9 In Oubre, the Court considered an

employee’s severance agreement releasing all claims against her

employer, including ADEA claims. The Court held that despite the

fact that the plaintiff had accepted severance payments, waiver

of ADEA claims required strict compliance with the requirements

of the OWBPA.

The Court, however, did not address pre-dispute waivers in

Oubre. Moreover, the Court clearly focused on waivers of

substantive rights guaranteed by the ADEA, not procedural rights,
10 Id. at 426-27 (emphasis added).

11 Rosenberg, 170 F.3d at 13.

12 Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614,

628 (1985). See also Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 29

(1991) (“Congress ... did not explicitly preclude arbitration ... in [the

OWBPA]....”).

5

holding that “[t]he statutory command is clear: An employee ‘may

not waive’ an ADEA claim unless the waiver or release satisfies

the OWBPA's requirements.”10 As the First Circuit has noted, to

the extent that Oubre bears on this question, it suggests by use

of the term “claims” that the waiver provisions of the OWBPA

apply only to substantive rights.11 “By agreeing to arbitrate a

statutory claim, a party does not forgo the substantive rights

afforded by the statute; it only submits to their resolution in

an arbitral, rather than a judicial, forum.... We must assume

that if Congress intended the substantive protection afforded by

a given statute to include protection against waiver of the right

to a judicial forum, that intention will be deducible from text

or legislative history.”12 In Williams we found no evidence of

Congressional intent to include the right to a judicial forum in

the waiver protections provided by the OWBPA. Oubre does not

affect that conclusion.

Additionally, to interpret the OWBPA to apply to the

procedural right to a jury trial would mean that we must hold

that OWBPA prohibits pre-dispute arbitration agreements
13 Williams, 56 F.3d at 661. This is because under the OWBPA an employee

cannot “waive rights or claims that may arise after the date the waiver is

executed.” 29 U.S.C. § 626(f)(1)(C). 

14 Williams, 56 F.3d at 661, citing Gilmer, 500 U.S. at 26 (placing burden

of showing that “Congress intended to preclude a waiver of a judicial forum for

ADEA claims” on party seeking to avoid arbitration).

15 See In re Alamo Lumber Company, 23 S.W.3d 577 (Tex. App.–San Antonio

2000) (holding that arbitration agreement was supported by consideration of

mutual promise to arbitrate claims). Cf. J.M. Davidson, Inc. v. Webster, No. 13-

00-626-CV, 2001 WL 587037 (Tex. App.–Corpus Christi May 31, 2001) (holding

arbitration agreement void for lack of consideration where employer reserved

right to unilaterally abolish or change personnel policy without notice). 

16 See In re Oakwood Mobile Homes, Inc., 987 S.W.2d 571 (Tex. 1999)

(holding that arbitration agreement was not unconscionable because of unequal

bargaining power between parties).

6

altogether, as we noted in Williams.

13 Again, Appellants must

demonstrate that Congress clearly intended such a result, and

they have not.14

III

Appellants’ remaining arguments consist of doomed state law

claims that the arbitration agreement is void for lack of

consideration and as unconscionable. We agree with the district

court that the DRP agreement is supported by consideration—the

mutual promise to arbitrate—and that Halliburton’s promise is not

illusory because amendment or termination of the agreement by

Halliburton requires a 10 day advance notice to be given.15 The

defendant’s assertion that the arbitration agreement is

unconscionable is similarly without merit.16

IV

For the foregoing reasons, the judgment of the district

court is AFFIRMED.
7