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Staying grievance when employee filed EEOC charge was adverse action; CBA was facially retaliatory

By Kathleen Kapusta, J.D.

Title VII and the ADEA protect employees from employers and labor organizations that would restrict their ability to file EEOC charges, a divided Sixth Circuit explained in reversing summary judgment against the retaliation claim of an employee whose grievance proceedings were held in abeyance pursuant to a collective bargaining agreement after she filed an EEOC charge and filed a lawsuit. Not only was the lower court’s award inconsistent with the Sixth Circuit’s admonition that an adverse action against an employee because she had pursued the statutorily protected activity of filing a charge with the EEOC is clearly retaliation, the CBA was retaliatory on its face, the appeals court stated. Dissenting, Judge Gibbons would have found, as a matter of law, that staying a grievance when an employee files an EEOC charge or discrimination lawsuit does not constitute retaliation under Title VII or the ADEA (Watford v. Jefferson County Public Schools, September 1, 2017, Moore, K.).

After she was terminated, the teacher filed a grievance pursuant to the governing collective bargaining agreement, which was denied by the school. The parties then arranged for arbitration, but it was held in abeyance by the school board pending the outcome of the employee’s EEOC charge, in which she asserted that she had been harassed, disciplined, and terminated because of her age and race, and retaliated against for complaining of illegal discrimination.

Retaliation? The employee then filed a second EEOC charge, alleging she was retaliated against when her request for arbitration was denied because she filed her first charge of discrimination. The first charge was resolved when the EEOC issued a dismissal and notice of rights. The parties then scheduled a three-day arbitration hearing. On the second day, the employee served the school board with this lawsuit, prompting the board to request that the arbitrator suspend the proceedings. The arbitrator ultimately decided to hold the arbitration in abeyance pending the resolution of the lawsuit.

The employee then filed a third discrimination charge, again alleging the board retaliated against her by holding the arbitration proceedings in abeyance. She also amended her complaint to add the union as a defendant. She then moved for partial summary judgment on her retaliation claim, but the district court, ruling that an employer’s stay of arbitration pending litigation pursuant to a CBA does not constitute an adverse action, granted summary judgment against her.

Adverse action. Framing the dispositive question on appeal as whether it is a materially adverse action if a CBA requires grievance proceedings to be held in abeyance upon the filing of an EEOC charge, the Sixth Circuit observed that “the facts of this case perfectly illustrate why holding grievance proceedings in abeyance, a step that has interminably stalled procedures intended to ‘be processed as rapidly as possible,’ would dissuade a reasonable worker from making or supporting a charge of discrimination.”

No material difference. The scope of Title VII’s anti-retaliation provision is broader than the substantive provision, said the court, observing that in keeping with this broader scope, it previously held, in EEOC v. SunDance Rehabilitation Corp., that terminating an in-house grievance proceeding because the employee filed an EEOC charge “clearly constituted retaliation.” Finding no material difference between terminating a grievance and holding it in abeyance, the court noted that both provisions make 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 the ADEA.

False binary. The CBA’s effect on a reasonable employee is not softened merely because grievances are held in abeyance rather than terminated, said the court, noting that employees avail themselves of the grievance process at least in part because they are supposed to “be processed as rapidly as possible.” Here, because the statute of limitations for filing an EEOC charge ran 300 days after the employee was terminated, she had 300 days to resolve her grievance before it would be held in abeyance. But on average, the court pointed out, individuals wait 399 days after filing a grievance to receive an arbitration award. And in the employee’s case, in part because proceedings were held in abeyance, she waited 923 days until arbitration even began, the court noted, explaining that she was presented with a false binary: either choose a speedy, extrajudicial resolution to her claims through the CBA’s grievance procedures or file an EEOC charge.

“Faced with this choice, many reasonable employees would be dissuaded from filing an EEOC charge, preferring instead to resolve their claims quickly and outside of the judicial process,” said the court, noting that “we encourage alternative dispute resolution, but not at the expense of Title VII and the ADEA’s guarantees.” Further, because an EEOC charge informs the agency of possible employment discrimination, employment practices that interfere with this information-gathering system run afoul of Title VII and the ADEA. Here, the CBA did just that, said the court, finding it violated the anti-retaliatory provisions of those statutes.

Dissent. In dissent, Judge Gibbons disagreed with the weight of authority the majority placed on Sundance, the conclusion that the employee suffered an adverse employment action, and the finding that the CBA was facially retaliatory. While the Sundance court opined that terminating grievance proceedings constitutes an adverse employment action, the entire discussion was dicta, the judge first noted, arguing that Sundance did not control and thus that this was an issue of first impression.

Moreover, even if Sundance were directly applicable, the CBA discussed in that case gave the employer the right to terminate an employee’s pending internal grievance proceeding if she pursued relief in any other forum. Here, however, the employee’s internal grievance was not terminated but was held in abeyance during the pendency of her EEOC claim. While the majority asserted that staying a grievance and terminating a grievance are not materially different because both “make the availability of remedies contingent on not filing an EEOC charge,” Judge Gibbons argued that an ordering of remedies—as was the case here—is not the same as an election of remedies.

Nor, in the dissent’s opinion, did the employee suffer an adverse employment action, as she had an opportunity for a timely resolution of her grievance but instead chose to file with the EEOC without giving the scheduled arbitration a chance. Observing that the majority’s decision provides a considerable benefit to employees in the short term—in that an employee has considerable leverage to pursue relief in the forum she prefers and to change forums at her discretion—the dissent questioned whether it would benefit employees in the long run. “Forcing employers to litigate on two fronts may lead them to abandon this method of resolution altogether,” Judge Gibbons suggested, opining that “not only will that increase costs to all parties and delay resolution of claims, but it runs the risk of undermining arbitration as a method of resolving disputes in these cases.”

Finally, Judge Gibbons argued that majority went too far in determining that the CBA provision is “retaliatory on its face,” observing that this is, “perhaps, the most problematic holding because it is made entirely on the presumption that Sundance controls.