Coordinating the CBA Grievance and the EEOC Charge *

By: Claudia D. Orr

What happens when an employee has a grievance under the collective bargaining agreement (“CBA”) and files a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) because she feels the employment action at issue was discriminatory?

Let’s look at the CBA at issue and what happened in Watford v Jefferson County Public Schools, a 2:1 decision, hot off the press from the federal Court of Appeals for the Sixth Circuit.  It is important to pay attention to this case, especially if you have a CBA, because this is the federal appellate court that hears the appeals from federal courts in Michigan, Ohio, Kentucky and Tennessee.

A CBA was negotiated between the Jefferson County Board of Education and the Jefferson County Teachers Association (the union).  As with most CBAs, it contained a grievance procedure.  This one begins with a discussion with the immediate supervisor or appropriate administrator and culminates with an appeal to the school superintendent followed by arbitration.

Significantly, the CBA also provides that “[t]he Association and the aggrieved party will be required to exhaust this Grievance Procedure including arbitration before seeking alternative remedies, provided that by doing so they will not be deemed to have waived or otherwise prejudiced any constitutional, statutory, or other legal rights that they may have.”  It also states that,“[i]f the employee opts to pursue a complaint using another agency, the parties agree to hold the grievance in abeyance until the agency complaint is resolved.”

On October 13, 2010, the day she was terminated, Plaintiff Watford filed a grievance under the CBA.  On February 24, 2011, she initiated a charge of discrimination with the EEOC. While, Watford’s grievance concerning the termination had been tentatively scheduled for arbitration to begin in July 2011, it was held in abeyance because of the EEOC charge.

Watford, disappointed that the arbitration did not occur as scheduled, filed a second EEOC charge claiming the arbitration had been held in abeyance in retaliation for filing her initial charge.  A year later, the EEOC issued a finding of cause (i.e., that it believes Title VII was violated) on the retaliation charge and, several months later in January 2013, the EEOC issued the Notice of Right to Sue letter and dismissed the original charge.

Arbitration of the union grievance was rescheduled because the EEOC had completed its processing of the charges.  But on April 24, 2013, the second day of the arbitration hearing, Watford filed her lawsuit in federal court alleging violations of Title VII. In response, the Board of Education asked the arbitrator to adjourn the arbitration until the federal lawsuit was resolved.  The arbitrator granted the request under the terms of the CBA quoted above.

Of course, this triggered another retaliation charge at the EEOC by Watford on October 25, this time against the Board of Education.  The Right to Sue letter on the retaliation charge was issued December 31, 2014.

The union and the Board of Education both filed motions to dismiss the retaliation claims, arguing that holding the arbitration in abeyance was not retaliatory; indeed the CBA provided for this action.  The federal district court agreed and dismissed those claims.  A few months later, Watford stipulated to a voluntary dismissal of the remaining claims and her appeal of the court’s dismissal of the retaliation claims followed.

So, here we are, in the Sixth Circuit Court of Appeals, nearly seven years after Watford was discharged. That is a lot of legal fees for the employer (and the union). Incidentally, the EEOC filed amicus curiae briefs with the appellate court. This tells you the interaction between this CBA grievance process and the EEOC charge is an important issue to the EEOC.

The appellate court first addressed whether the union could be held liable and found that it could.  But the more interesting, meaty issue addressed by the court was whether holding the grievance proceedings in abeyance was an “adverse” action upon which the Title VII retaliation claim could be based.  It found that it was.

Remember, an adverse action for a retaliation claim only needs to be an act that would “dissuade a reasonable worker from making or supporting a charge of discrimination.”  The appellate court had previously ruled in EEOC v Sundance Rehabilitation Corp, 466 F3d 490, 498 (CA 6, 2006), that the termination of grievance proceedings was an adverse action. Thus, the dispositive issue for the court was “whether there is a material difference between terminating a grievance and holding it in abeyance.”

The court found that there was not because both actions made “the availability of remedies contingent on not filing an EEOC charge. Singling out employees or union members on this basis ‘discriminate[s]’ against them because they ‘opposed any practice made an unlawful employment practice by’ Title VII… And ‘[a] benefit that is part and parcel of the employment relationship may not be doled out in a discriminatory fashion, even if the employer would be free…not to provide the benefit at all.’”  The court noted that the effect on an employee was “not softened merely because grievances are held in abeyance rather than terminated. Employees avail themselves of the grievance process at least in part because grievances are supposed to ‘be processed as rapidly as possible.’”

Watford’s EEOC charges had to be filed within 300 days of the employment termination.  However, a grievant (like Watford), on average, waited 399 days after initiating the grievance to receive an arbitration award.  Here, because the grievance was held in abeyance, Watford had to wait 923 days until arbitration even started. So Watford was faced with a decision: either a speedy resolution of her claims through the grievance process or file an EEOC charge.  Thus, the terms of the grievance process in the CBA, violated the anti-retaliation sections of the federal civil rights laws.

What does your CBA say about the interaction between the grievance procedure and other means of redress?  What does it say about the interaction between the CBA and the employee handbook?  These are strategic legal issues that should be discussed with an experienced labor/employment attorney, such as the author.

This article was written by Claudia D. Orr, who is Chair of the Legal Affairs Committee of Detroit SHRM, and an experienced labor/employment attorney at the Detroit office of Plunkett Cooney (a full service law firm and resource partner of Detroit SHRM).  She can be reached at corr@plunkettcooney.com or at (313) 983-4863. For further information go to: http://www.plunkettcooney.com/people-105.html.

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. September, 2017.

Complimentary Legal HR Lunch & Learn at The Capital Grille

Ultimate Software
Ultimate Software & Maddin Hauser are hosting a complimentary Lunch & Learn for HR professionals on Wednesday, May 17th at 11:30 am at The Capital Grille in Troy. HR professionals are invited to join from across the area.

James Reid of Maddin Hauser will speak on “Navigating Employment Landmines and Anticipated Changes Under Trump Administration.” The lunch is pre-approved for 1 SHRM credit.

There will also be a brief intro to Ultimate Software. Ultimate is a unified HCM, including HR, payroll, benefits, talent acquisition, surveys, performance, full reporting, and dedicated account manager.

Lunch will be provided, but due to space limitations, please RSVP by Wednesday, May 10th.

If you are interested or want to RSPV, please contact Christie Piper Hecht at 248.229.5125 or Christie_hecht@ultimatesoftware.com.

Medical Resident Can Sue for Sexual Harassment Under Title IX

By Karen L. Piper

Jane Doe was accepted into the medical residency program at Mercy Catholic Medical Center, which is affiliated with Drexel University’s College of Medicine, in fall 2011.  As required by the residency program, Doe attended morning lectures and afternoon case presentations, attended a mandatory physics class, attended monthly lectures and sat for annual examinations to assess her progress and competence.

Doe complained several times that the director of the residency program sexually harassed her and retaliated against her for complaining about his behavior.  When she complained to Human Resources, she was referred to a psychiatrist.  In April 2013, Doe complained again and again was referred to a psychiatrist.  The psychiatrist told Doe that all of the other residents loved the director and Doe should apologize to him.  Doe did, but the director said it was not sincere.  He recommended that she be terminated from the residency program and she was.

Exactly two years later, in April 2015, Doe sued the Medical Center in federal district court under Title IX of the Education Amendments of 1972.  Title IX prohibits discrimination on the basis of sex by an education program or activity that receives federal financial assistance.  The district court dismissed the case because it considered Doe an employee, and she should have sued under Title VII after filing a charge with the Equal Employment Opportunity Commission (“EEOC”).

The Third Circuit Court of Appeals (which covers Delaware, New Jersey, and Pennsylvania) reversed.  It agreed that Doe was an employee but ruled she was not limited to Title VII remedies.  Doe also could sue under Title IX because the medical residency program was an education program or activity that received federal financial assistance in the form of Medicare payments.  The Third Circuit reinstated her retaliation and quid pro quo sexual harassment claims because Doe was dismissed from the residency program within two years before she filed suit.  Doe’s hostile environment claim was time-barred because the alleged harassment did not occur within two years before she filed suit. Doe v Mercy Catholic Medical Center (3rd Cir. March 7, 2017).

The Third Circuit’s decision, in this case, is consistent with decisions in the First Circuit, Sixth Circuit (covering Michigan, Ohio, Kentucky and Tennessee) and Fourth Circuit but contrary to decisions in the Fifth and Seventh Circuits, which have ruled that Title VII is a medical resident’s exclusive remedy.  As a result of the split of opinions, this case may be headed to the United State Supreme Court.

This case involved a hospital residency program.  However, the opportunity to sue an employer without exhausting the EEOC’s administrative remedies could be extended to all educational institutions which receive federal financial assistance, e.g., colleges and universities.  For further information, consult an experienced employment attorney, such as the author.

This article was written by Karen L. Piper, who is Secretary of the Board of Detroit SHRM, a member of the Legal Affairs Committee, and a Member of Bodman PLC, which represents employers, only, in Workplace Law. Ms. Piper can be reached at Bodman’s Troy office at (248) 743-6025 or kpiper@bodmanlaw.com. For further information, go to: http://www.bodmanlaw.com/attorneys/karen-l-piper.

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information is included in the re-post of the article. April 2017.

QuadWest Seminar Highlights Trump Administration from a Human Resource Perspective

logo-quadwest

QuadWest Associates, a human resources management firm serving companies in Southeast Michigan, today announced the availability of a recorded webcast that featured President and founder Susan West and Equity Partner James M. Reid IV, of Maddin Hauser Roth & Heller, PC. The session is devoted to how human resource professionals should approach the workplace in light of the Trump administration’s priorities and approaches to regulations governing business conduct.

Topics covered in this informative, hour-long webinar include the status of various government initiatives that impact workplace legislation and enforcement:

  • Overtime and the current administration’s regulatory freeze
  • Immigration and the H-1B visa program
  • ACA repeal and replace
  • Employment discrimination: increasing state and local ordinances

The session is an officially sanctioned educational opportunity and qualifies for 1.5 professional development credits for SHRM-CP and SHRM-SCP certification.

“This informative session with attorney James M. Reid IV is designed to guide HR professionals in the changing workplace environment,” stated QuadWest President and Founder Susan E. West, SPHR, SHRM-SCP. “Business will continue as the new administration determines its approach to regulations and legislation as it relates to the workplace. HR professionals, in particular, want to ensure their companies are in compliance with the spirit and letter of the law.”

Access the webcast here.

About QuadWest Associates
Founded in 2004, QuadWest is a management consulting firm with a passion for uplifting Human Resource functions within small to mid-sized companies. Our team of professionally trained HR Business Partners supports a company’s success by providing strategically-focused, practical HR management guidance. We specialize in business-driven HR consulting services, onsite and offsite, in the areas of HR operations set-up, employee relations, training, performance management, compliance/risk management, leadership development/coaching, recruiting and workplace investigations. Our success stems from our commitment to providing clients with the right HR services that meet their needs, calling on the breadth and depth of our talented team’s HR expertise.

For more information, please go to www.quadwest.com. 

Detroit SHRM Chapter Announces Its Newest Board Members and Key Committee Directors

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Detroit SHRM is proud to announce the appointment of two new board members:

  • Debra Williams is President Elect. Debra is an Executive Vice President with Right Management, a global talent and career management consulting firm. Her diverse career includes human resources and operations executive and senior leadership roles in healthcare, education and business
  • Michelle Hansel is the new Membership Services Liaison. Michelle is the Vice President for Human Resources at the Detroit Regional Chamber, and brings with her more than two decades of dedicated HR and strategic business partnership experience.

Also joining the DSHRM leadership team this year are the following Chapter Committee Directors:

  • Education Committee Director: Bill Fairlie. Bill has held several VP & Director-level HR leadership roles, most recently at Cinram & TriMas. Bill will be bringing his strategic & visionary HR leadership experience to ensure continued high-level HR educational & networking events.
  • Member Services Committee Director: Denis Nicole. Denis currently serves as the Interim Vice President, Human Resources for the Burroughs Corporation. He has more than three decades of HR experience and is also District Chief in the Farmington Hills Fire Department.
  • Marketing Committee Director: Kelly Houghteling. Kelly supports Talent Acquisition for North American Bancard, specializing in IT and hard-to-fill positions. Her university education was in the field of Marketing and Communication, and she worked for several years in that field, before transitioning into HR. She brings a unique, dual-industry focus to her Committee.
  • Strategic Partners Committee Director: Susan West. Susan is the founder and owner of QuadWest Associates, a strategic HR and management consulting firm with clients throughout Southeast Michigan. Prior to founding QuadWest in 2004, Susan earned an MBA and worked in a variety of Human Capital and Program Management roles.
  • Government & Community Affairs Committee Director: Kristi Stuetzer. With a graduate degree in Management and nearly two decades of professional HR experience, Kristi is an accomplished HR business leader with an impressive record of achievement. In addition, Kristi is an active community volunteer, donating her time to Easter Seals, the American Red Cross, and Oakland County Youth Assistance, in addition to her work with DSHRM.

The board and committee leadership work together to promote and foster Detroit SHRM’s Mission to help human resource professionals in Southeast Michigan develop their talent and build their networks. We wish you much success in your roles and look forward to the leadership you bring to DSHRM!

Media Contacts: For more information, call or email Detroit SHRM at 248-643-6590 and info@detroitshrm.org, or visit our website at www.detroitshrm.org. Also, follow us on LinkedIn, Twitter, and Facebook.

About Detroit SHRM

Detroit SHRM is the largest Society for Human Resource Management (SHRM)-affiliated chapter in Michigan with members representing diverse companies located throughout Southeast Michigan, including Wayne, Oakland and Macomb counties.

Plunkett Cooney attorneys among 2016 ‘Best Lawyers in America’

Plunkett Cooney

 

Thirty Plunkett Cooney attorneys were recently selected by their peers for inclusion in The Best Lawyers in America® for 2016.

First published in 1983, Best Lawyers is based on an exhaustive peer-review survey in which lawyers within their own geographic region nominate their peers. These lawyers are not allowed to select nominees from the same area(s) in which they practice. Inclusion in Best Lawyers (Copyright 2015 by Woodward/White, Inc., of Aiken, SC) is considered a singular honor because lawyers are not required or allowed to pay a fee to be listed.

Receiving special honors from Best Lawyers this year is Plunkett Cooney attorney Stanley C. Moore, III who was named Detroit “Lawyers of the Year” in Labor Law – Management. This designation is given to only a single attorney in each practice area in each community. Moore has been on the list of The Best Lawyers in America® since 2008.

An of counsel attorney at Plunkett Cooney, one of the Midwest’s oldest and largest law firms in Michigan, Moore devotes his practice exclusively to representing management in labor and employment law matters. He has represented both private and public sector employers in all facets of labor and employment law in union and non-union settings. Moore has represented healthcare providers in all aspects of both state and federal labor and employment law since 1973.

Below is a list of additional Plunkett Cooney attorneys who have received the 2016 Best Lawyers designation:

Plunkett Cooney’s Bloomfield Hills, Michigan Best Lawyers:

  • Michael P. Ashcraft (partner) – Legal Malpractice Law
  • Douglas C. Bernstein (partner) – Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law and Mortgage Banking Foreclosure Law
  • William D. Booth (of counsel) – Personal Injury Litigation. He has the distinction of being named to the Best Lawyers list for over 25 years.
  • Charles W. Browning (partner) – Insurance Law
  • Lawrence R. Donaldson (of counsel) – Professional Malpractice Law
  • Michael A. Fleming (partner) – Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law
  • Jeffrey C. Gerish (partner) – Appellate Law
  • Gregory Gromek (partner) – Personal Injury Litigation
  • Robert G. Kamenec (partner) – Appellate Practice
  • Mark S. Kopson (partner) – Health Care Law
  • David A. Lerner (partner) – Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law
  • Mary Massaron (partner) – Appellate Law
  • Saulius K. Mikalonis (senior attorney) – Environmental Law
  • Scott H. Sirich (partner) – Construction Law and Litigation
  • Thomas P. Vincent (partner) – Commercial Litigation 

Plunkett Cooney’s Columbus, Ohio Best Lawyers:

  • Amelia A. Bower (partner) – Real Estate Litigation
  • Jack S. Levey (senior attorney) – Real Estate Law

Plunkett Cooney’s Detroit, Michigan Best Lawyers:

  • Loretta M. Ames (senior attorney) – Product Liability Litigation
  • Jennifer Andreou (partner) – Medical Malpractice Law
  • James R. Geroux (partner) – Workers’ Compensation Law
  • Laurel F. McGiffert (partner) – Medical Malpractice Law
  • Claudia D. Orr (senior attorney) – Employment Law
  • Stanley A. Prokop (partner) – Insurance Law
  • Mary Catherine Rentz (partner) – Insurance Law

Plunkett Cooney’s East Lansing, Michigan Best Lawyer:

  • David K. Otis (partner) – Municipal Law and Litigation

Plunkett Cooney’s Indianapolis, Indiana Best Lawyer:

  • Stephen J. Peters (partner) – Appellate Practice, Commercial Litigation, Insurance Law and Construction Litigation 

Plunkett Cooney’s Kalamazoo, Michigan Best Lawyers:

  • Michael S. Bogren (partner) – Municipal Law and Litigation
  • Keith A. Peterson (senior attorney) – Banking and Finance Law

Plunkett Cooney’s Petoskey, Michigan Best Lawyer:

  • Jerome A. Galante (partner) – Personal Injury Litigation 

Established in 1913, Plunkett Cooney employs 150 attorneys in nine Michigan cities, Columbus, Ohio and Indianapolis, Indiana. The firm has achieved the highest rating (AV) awarded by Martindale-Hubbell, a leading, international directory of law firms and is listed among the U.S. News – Best Lawyers “Best Law Firms” in 2015. Plunkett Cooney has also received awards naming the firm as a top place to work within the legal industry.

For more information about Plunkett Cooney’s 2016 “Best Lawyers in America,” contact the firm’s Director of Marketing and Business Development John Cornwell at (248) 901-4008; jcornwell@plunkettcooney.com.

OFCCP Publishes Sexual Orientation and Gender Identity Discrimination Fact Sheet

Detroit SHRM

 

By: Karen L. Piper

 

To publicize the rights of applicants and employees of federal contractors and subcontractors to work in an environment free of discrimination based on sexual orientation and gender identity, the Office of Federal Contract Compliance (OFCCP) has issued a new Worker Fact Sheet.  The Fact Sheet can be downloaded from http://www.dol.gov/ofccp/regs/compliance/factsheets/.

The Fact Sheet states employees are entitled to be free from harassment, demotion, termination, lesser wages, and less favorable treatment because of sexual orientation and gender identity.  Specifically, a federal contractor cannot:

  • Ask employees or job applicants for any information or identification that they do not ask for from all other employees or job applicants, including medical information related to their gender identity;
  • Refuse employees and job applicants the ability to use restrooms consistent with their gender identity;
  • Harass employees and job applicants because of their sexual orientation or gender identity;
  • Deny lawfully married same-sex spouses the same benefits they provide to opposite-sex spouses; or
  • Deny same-sex partners in civil unions or domestic partnerships the same benefits they provide to heterosexual partners in such relationships.

The Fact Sheet also provides information on how to file a complaint with the OFCCP or EEOC.

If you have questions about whether your organization is a federal contractor or subcontractor, contact the author or other experienced employment counsel.

This article was written by Karen L. Piper, who is Secretary of the Board of Detroit SHRM, a member of its Legal Affairs Committee, and a Member of the law firm of Bodman PLC, located in its Troy MI office. She can be reached at (248) 743-6025 or kpiper@bodmanlaw.com.

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. August 2015.

Magazine names Plunkett Cooney national ‘Go-To’ firm for litigation

Plunkett CooneyBloomfield Hills, MI — For the third consecutive year, Plunkett Cooney, one of the Midwest’s oldest and largest law firms, has been named by American Lawyer Media (ALM) as a “Go-To” law firm in the area of litigation for companies ranking among the Fortune 500.

Law firms on the Go-To list are determined by the “Who Represents Corporate America” feature that appears annually in Corporate Counsel magazine. Each fall, the publishers of Corporate Counsel magazine choose a select group of firms as Go-To Law Firms® for the Top 500 companies.

Firms are chosen based on data obtained from ALM Legal Intelligence searches in public records such as Lexis CourtLink, as well as searches in PACER, a service that provides online access to U.S. appellate, district and bankruptcy court records and documents nationwide. This research determines which law firms represent America’s largest corporations in key litigation areas, including contract litigation, tort litigation and labor and employment law, among many others.

The 2015 Go-To Law Firms® were featured in ALM’s In-House Law Departments at the Top 500 Companies, a directory of the legal representation of the corporate elite. This directory was distributed to over 20,000 general counsel across the nation, including all subscribers of Corporate Counsel magazine. 

Plunkett Cooney is a leading provider of transactional and litigation services to clients in the private and public sectors. The firm’s litigation services include appellate law, business litigation, construction law, environmental liability, healthcare law, insurance law, labor and employment law, marine liability, motor vehicle liability, medical malpractice, municipal liability, product liability, professional liability, title insurance and workers’ compensation.

Established in 1913, Plunkett Cooney employs over 150 attorneys in nine Michigan cities, Columbus, Ohio and Indianapolis, Indiana. The firm has achieved the highest rating (AV) awarded by Martindale-Hubbell, a leading, international directory of law firms and is listed among the U.S. News – Best Lawyers “Best Law Firms” in 2014. Plunkett Cooney has also received several awards naming the firm as a top place to work within the legal industry. 

For more information about Plunkett Cooney named as a Go-To Law firm, contact the firm’s Practice Development Manager John Cornwell at (248) 901-4008; jcornwell@plunkettcooney.com.