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 firstname.lastname@example.org 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.