Subsequent cases interpreting Penn Plaza have held that general non discrimination language is insufficient to prevent an employee from pursuing litigation over a statutory claim. In Ibarra v. United Parcel Service the Fifth Circuit determined that for a cba to bar litigation, the cba must "at the very least, identify the specific statutes the agreement purports to incorporate or include an arbitration clause that explicitly refers to statutory claims." In its recent decision in Gilbert v. Donohoe, the Fifth Circuit has addressed a cba that it finds "falls between" the language discussed in Penn Plaza, and that in subsequent cases finding no waiver.
Plaintiff Gilbert sought to litigate claims that the USPS had violated her rights under the FMLA, and the Rehabilitation Act. Reversing, in part, the District Court's decision, the Fifth Circuit has determined that the contract in issue precluded litigation of the Rehabilitation Act claims, but not the FMLA ones.
The contract provided for a dispute resolution procedure culminating in binding arbitration. Separately the cba provided "consistent with the other provisions of this Agreement, there shall be no unlawful discrimination against handicapped, as prohibited by the Rehabilitation Act." The contract also incorporated the Employee and Labor Relations Manual (ELM) which, according to its terms, "provides policies to comply with the [FMLA]."
Noting that the contract could be said to reference both statutes, the Court found the nature of the references distinct, resulting in differing results.
...the ways in which the agreement identifies the respective statutes are distinct, and this difference guides our resolution of this case. Section 2.01(B) of the CBA specifically provides that it is incorporating into the agreement the prohibition of discrimination against handicapped employees contained in the Rehabilitation Act. It thus complies with the dicta of both Ibarra and Wright that the CBA “identify the specific statutes the agreement purports to incorporate.” 26 Combined with Article 15, this provision makes it clear and unmistakable that the Rehabilitation Act is part of the CBA and subject to the same grievance procedures. By contrast, the ELM only provides policies to comply with the FMLA. It does not purport to make the FMLA a part of the agreement. As our sister circuits have recognized, references to statutes that fall short of incorporation are insufficiently “clear and unmistakable” to bar access to federal court. 27 There is no reason to treat this reference any differently. Accordingly, we hold that, while the CBA requires Gilbert to pursue her Rehabilitation Act claims through the specified grievance and arbitration procedures, its references to the FMLA are not sufficiently clear and unmistakable to deprive the district court of subject matter jurisdiction over claims arising under that statute.
The Court therefore affirmed the dismissal of plaintiff's Rehabilitation Act claims, but reversed the dismissal of the claims under the FMLA.