UNITED STATES COURT OF APPEALS for the SECOND CIRCUIT. On Appeal from the United States District Court for the Southern District of New York

Transcription

1 No cv UNITED STATES COURT OF APPEALS for the SECOND CIRCUIT Eva Kravar, v. Plaintiff-Appellee, Triangle Services, Inc., Defendant-Appellant. On Appeal from the United States District Court for the Southern District of New York BRIEF OF EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF-APPELLEE AND IN SUPPORT OF AFFIRMANCE James L. Lee Deputy General Counsel Carolyn L. Wheeler Acting Associate General Counsel Lorraine C. Davis Assistant General Counsel Equal Employment Opportunity Commission 131 M Street, N.E. Susan R. Oxford Washington, D.C Attorney (202)

2 TABLE OF CONTENTS page STATEMENT OF INTEREST OF AMICUS CURIAE...1 STATEMENT OF ISSUES ON APPEAL...2 STATEMENT OF FACTS...2 District Court Decision...8 SUMMARY OF ARGUMENT...10 ARGUMENT...12 THE DISTRICT COURT PROPERLY DENIED TRIANGLE S MOTION TO COMPEL ARBITRATION BECAUSE UNDER THE CBA, THE UNION CAN PREVENT EMPLOYEES FROM EFFECTIVELY VINDICATING FEDERAL STATUTORY CLAIMS...12 A. An arbitration provision in a CBA that requires statutory discrimination claims to be arbitrated, but also permits the union to block an employee s access to arbitration, constitutes a substantive waiver of federally protected rights and is unenforceable on that basis...12 B. The arbitration agreement in the CBA is unenforceable as to Kravar for the additional reason that the CBA deprives union members of important rights and remedies to which they are entitled under the ADA...23 CONCLUSION...29 CERTIFICATE OF COMPLIANCE AND VIRUS SCAN...30 CERTIFICATE OF SERVICE

3 TABLE OF AUTHORITIES Cases Page Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974)...7, 17, 25 Am. Express Merchs. Litig., In re, 554 F.3d 300 (2d Cir. 2009)...21 Arciniaga v. Gen. Motors Corp., 460 F.3d 231 (2d Cir. 2006)...12 AT&T Techs., Inc. v. Commc ns Workers of Am., 475 U.S. 643 (1986)...21, 22 Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728 (1981)...17, 18 Chelsea Square Textiles, Inc. v. Bombay Dyeing & Mftg. Co., 189 F.3d 289 (2d Cir. 1999)...20 Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978)...25, 26 Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001)...12 Clubside, Inc. v. Valentin, 468 F.3d 144 (2d Cir. 2006)...28 EEOC v. Waffle House, Inc., 534 U.S. 279 (2002)...9, Penn Plaza v. Pyett, U.S., 129 S. Ct (2009)... 1, 10, 12, passim Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991)...10, 13, 14 Graham Oil Co. v. ARCO Prods. Co., 43 F.3d 1244 (9th Cir. 1994)...28 Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79 (2000)...11, 13, 14, 24 Hooters of Am., Inc. v. Phillips, 173 F.3d 933 (4th Cir. 1999)...25, 28 Howsam v. Dean Reynolds, Inc., 537 U.S. 79 (2002)...21 Kravar v. Triangle Servs., Inc. (Kravar I), 509 F. Supp. 2d 407 (S.D.N.Y. 2007)...3, 6, 7 ii

4 Cases (cont d) Kravar v. Triangle Servs., Inc. (Kravar II), No. 1:06-cv-7858, 2009 WL (S.D.N.Y. March 27, 2009)...3, 5, 10 Kravar v. Triangle Servs., Inc. (Kravar III), Civ. No. 1:06-cv-07858, 2009 WL (S.D.N.Y. May 19, 2009)... 2, 6, 8, passim McDonald v. City of West Branch, 466 U.S. 284 (1984)...17 Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (1985)...10, 13, 14 Morris-Hayes v. Bd. of Educ., Chester Union Free Sch. Dist., 423 F.3d 153 (2d Cir. 2005)...28 Murray v. United Food & Commercial Workers, 289 F.3d 297 (4th Cir. 2002)...25 New York Gaslight Club, Inc. v. Carey, 447 U.S. 54 (1980)...25 Pyett v. Pennsylvania Bldg. Co., 498 F.3d 88 (2d Cir. 2007), rev d sub nom. 14 Penn Plaza v. Pyett, U.S., 129 S. Ct (2009)...7, 19 Ross v. Am. Express Co., 547 F.3d 137 (2d Cir. 2008)...13 Specht v. Netscape Commc ns Corp., 306 F.3d 17 (2d Cir. 2002)...20 Town of Newton v. Rumery, 480 U.S. 386 (1987)...27 Vaca v. Sipes, 386 U.S. 171 (1967)...17 Vera v. Saks & Co., 335 F.3d 109 (2d Cir. 2003)...21 Walker v. Ryan s Family Steak Houses, Inc., 400 F.3d 370 (6th Cir. 2005)...24 iii

5 Statutes 9 U.S.C U.S.C U.S.C U.S.C. 206 et seq U.S.C. 621 et seq U.S.C. 623(c) U.S.C. 2000e et seq U.S.C. 2000e-2(c)(1) U.S.C. 2000e-2(c)(3) U.S.C. 2000e-5(e)(1) U.S.C. 2000e-5(k) U.S.C et seq U.S.C (2) U.S. C (a), (b) U.S.C (a)...25, 27 Miscellaneous Brief of SEIU, Local 32BJ, as Amicus Curiae in Support of Respondents in 14 Penn Plaza v. Pyett, No (S. Ct.)...17 Restatement (Second) of Contracts 178(1)...27 iv

6 STATEMENT OF INTEREST OF AMICUS CURIAE The Equal Employment Opportunity Commission (EEOC) is the federal agency responsible for enforcing federal employment discrimination laws, including the Americans with Disabilities Act (ADA), 42 U.S.C et seq. The EEOC also enforces Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. 2000e et seq., with respect to private employers, as well as the Age Discrimination in Employment Act (ADEA), 29 U.S.C. 621 et seq., and Equal Pay Act, 29 U.S.C. 206 et seq., with respect to both public and private employers. This appeal poses the important question of whether an arbitration clause in a collective bargaining agreement (CBA) is unenforceable because it operates as a substantive waiver of employees federally protected rights. Specifically, the CBA in this case required arbitration of union members statutory employment discrimination claims as the sole and exclusive remedy for such violations, but then allowed the union to block a member s access to arbitration in a particular case. In 14 Penn Plaza v. Pyett, U.S., 129 S. Ct (2009), the Supreme Court indicated that a collective bargaining provision under which a union can prevent an employee from effectively vindicating her statutory rights in the arbitral forum is an unenforceable waiver of statutory rights. Id. at The Supreme Court did not, however, resolve whether the CBA provisions in Pyett the same CBA provisions in this appeal actually permitted the union to block employee access to arbitration. That issue is now squarely

7 raised here. The EEOC has a strong interest in ensuring that collective bargaining agreements do not improperly thwart private statutory claims by allowing a union to deny its members any forum to pursue their employment discrimination claims. Accordingly, the EEOC offers its views to this Court. STATEMENT OF ISSUES ON APPEAL 1 1. Whether the district court properly denied Triangle s motion to compel Kravar to arbitrate her ADA claim because the arbitration clause of the collective bargaining agreement is an unenforceable substantive waiver of Kravar s federal statutory rights. 2. Whether the district court s decision can also be affirmed on the alternate ground that the arbitration clause in this collective bargaining agreement deprives employees of rights and remedies that Congress made available under the ADA. STATEMENT OF FACTS Plaintiff Eva Kravar worked for more than twenty-five years as a daytime office cleaner. Kravar v. Triangle Servs., Inc., Civ. No. 1:06-cv-07858, 2009 WL , at *1 (S.D.N.Y. May 19, 2009) (Kravar III). Kravar s former employer, Triangle Services, supplies staff to clean office buildings pursuant to a collective bargaining agreement between The Realty Advisory Board on Labor Relations ( RAB, which represents Triangle and other employers) and the Service 1 The EEOC takes no position on any other issue in this appeal. 2

8 Employees International Union, Local 32BJ, AFL-CIO. Id. Kravar was a member of Local 32BJ. Kravar v. Triangle Servs., Inc., 509 F. Supp. 2d 407, 408 (S.D.N.Y. 2007) (Kravar I). In August 2003, Kravar was diagnosed with colon cancer. Kravar v. Triangle Servs., No. 1:06-cv-7858, 2009 WL , at *2 (S.D.N.Y. March 27, 2009) (Kravar II). The following month, Kravar underwent extensive abdominal surgery. After a week in the hospital, she spent two months out of work, recuperating. Id. Upon her return, she was able to continue performing her daytime cleaning duties, which did not involve heavy lifting. At the time these events occurred, Kravar was working at the headquarters of Bloomberg, L.P., one of Triangle s clients. Id. at *1. In February 2005, Triangle told Kravar she would no longer have a job at the Bloomberg office building because Bloomberg was moving its headquarters to a new location where it would be hiring new daytime cleaners who could be paid less than the more senior cleaners at the old location. Id. at 2. Kravar later learned that Triangle actually transferred seven cleaners from the old location to the new location. The parties dispute how these seven employees were selected, but they agree that Triangle did not offer Kravar a daytime cleaning position in the new Bloomberg building or anywhere else. Id. Instead, Triangle offered Kravar a nighttime 3

9 cleaning position at her former rate of pay and warned her that if she did not accept, her employment would be terminated. Id. Nighttime work is more physically demanding than daytime work. Id. Kravar sent Triangle and the union a note from her cancer surgeon stating that heavy work or heavy lifting would be injurious to her health. Id.; see Note from Dr. Jeffrey S. Freed dated 4/18/05 (JA319); Kravar Decl. 5, 6 (JA582). 2 Kravar spoke with a union representative about her situation and, in April, she filed a complaint with the union challenging her removal from daytime work, informing the union representative that she could not physically perform the duties required of a night time cleaner because of her abdominal weakness caused by my surgery. Id. 7 (JA583). Kravar states that she also told a second union representative, Jeff Abramson, that she was not able to perform the duties of a night cleaner because of her cancer surgery, gave him a second copy of her doctor s note (which she had sent to him previously), and told him she wanted to go to arbitration on her disability complaint. Id (JA583). Kravar states that Mr. Abramson laughed and told her she could not go to arbitration because the union would most likely dismiss her complaint. Id. 10. Triangle gave Kravar a leave of absence, following which Kravar returned to work on May 2. See Lusha Affid. 8 (JA95). Kravar then attempted to work the 2 JA refers to the parties Joint Appendix filed with this Court. 4

10 night shift on May 2 and 3. Kravar II, 2009 WL , at *2. She was unable to vacuum or perform heavy lifting, however, and on the second evening, the supervisor sent her home after only four hours. Id. at *2 and n.2. The union prepared a written complaint form on Kravar s April 26, 2005, complaint (JA317). On the complaint form, Abramson noted that Kravar said she could not work nights and was seeking a day job based on her seniority. Abramson also noted that Kravar s doctor had limited her to light duty work, referencing the attached doctor s note. Id.; see JA319. The complaint form permits the union to choose among four recommended next steps, one of which is arbitration. The union checked none of these options. See JA317. Another portion of the form permits the union to select one of five possible outcomes of the complaint. The union checked no complaint on the form and apparently advised Triangle that Kravar s grievance had been dismissed by the union. Id. Neither the union nor Triangle informed Kravar of the status of her grievance. Kravar Decl. 11 (JA583). When Kravar heard nothing back from the union or Triangle concerning her request for a daytime position and her complaint under the CBA, she filed a charge with the EEOC. Id.; Kravar II, 2009 WL , at *3. The EEOC sent notice of the charge to Triangle on October 15, 2005, and approximately three weeks later, 5

11 Triangle removed Kravar from its payroll and terminated her benefits. Kravar II, 2009 WL , at *3. Kravar filed suit under Title VII and the ADA. Id. In 2007, Triangle Services moved to dismiss the complaint, to stay the action, or to compel arbitration under Section 3 of the Federal Arbitration Act (FAA), 9 U.S.C. 3, arguing that arbitration was the sole and exclusive remedy available to plaintiff under the applicable CBA. 3 See Kravar I, 509 F. Supp. 2d at 408. The CBA prohibits discrimination against any present or future employee by reason of... disability. See Kravar III, 2009 WL , at *1 (quoting CBA Art. XIX). The provision specifically references the ADA and further provides: Id. All such claims shall be subject to the grievance and arbitration procedure (Articles VII and VIII) as the sole and exclusive remedy for violations. Arbitrators shall apply appropriate law in rendering decisions based upon claims of discrimination. Kravar opposed Triangle s motion to compel arbitration. Among other things, Kravar argued that the arbitration clause was unenforceable because it gave the union complete control over whether, and how, to arbitrate an individual s statutory claim. See id. at *3 n.1 (noting that Kravar argued the CBA s arbitration 3 If a court is satisfied that the issue involved in a lawsuit or proceeding is referable to arbitration under a written arbitration agreement, the Federal Arbitration Act requires the court to stay the lawsuit and to compel the parties to arbitrate. See 9 U.S.C. 3, 4. 6

12 clause puts the employee at the mercy of his or her union, which may be indifferent or even hostile to the employee s claim of individual discrimination ). Kravar also opposed the motion on the ground that the CBA s arbitration clause limited the relief an arbitrator could award a prevailing employee, depriving employees of the full range of statutory remedies available under federal law. See Kravar Memorandum in Opposition 14, June 8, 2007 (R.16). 4 The district court denied Triangle s motion to compel arbitration. Kravar I, 509 F. Supp. 2d at Without addressing Kravar s arguments concerning the particular inadequacies of the arbitration clause, the district court held that the CBA s arbitration clause was unenforceable under Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974), and this Court s recent decision in Pyett v. Pennsylvania Building Co., 498 F.3d 88 (2d Cir. 2007), rev d sub nom. 14 Penn Plaza v. Pyett, U.S., 129 S. Ct (2009). See Kravar I, 509 F. Supp. 2d at After the Supreme Court issued its decision in 14 Penn Plaza v. Pyett, Triangle sent Kravar a letter offering to let her use the CBA s grievance and arbitration procedures to pursue her claim of disability discrimination. See Letter from Mark N. Reinharz to Darnley D. Stewart dated April 20, 2009 (JA ). Triangle then renewed its motion to compel arbitration (JA455). Triangle argued that, in light of the Supreme Court s decision in Pyett upholding the identical 4 R refers to the district court s docket number. 7

13 arbitration provision and the company s recent offer to permit Kravar to grieve and arbitrate her ADA claim, the district court should defer the matter to the grievance arbitration procedure of the collective bargaining agreement. See Triangle s Memorandum in Support of Motion to Dismiss 6-8, April 22, 2009 (R.57). District Court Decision The district court denied Triangle s motion, finding that the CBA effectuated a substantive waiver of Kravar s federally protected statutory rights. Kravar III, 2009 WL , at *3. The district court noted that the CBA requires union members to submit all claims of discrimination to binding arbitration under the [collective bargaining] agreement s grievance and dispute resolution procedures. Id. at *1. The court further noted that the first step of the CBA grievance procedure involves a discussion between a management representative and a Union representative, and if the matter is not resolved at that stage, it may be filed for arbitration. Id. at *2. The court specifically found, however, that employee disputes that are not resolved through the grievance procedure... may only be taken to arbitration at the request of either Local 32BJ or the affected employer. Id. The court concluded that if Kravar s union prevented her from arbitrating her disability discrimination claims, the CBA s arbitration provision may not be enforced as to her. The court then found that this in fact occurred. Id. at *3. 8

14 Specifically, the court found that Kravar told her union representative she wanted to arbitrate her disability claim and the union representative, in response, laughed and told her the union would most likely dismiss her claim, a conversation the union representative was unable to confirm or deny. Id. The court rejected Triangle s argument that Kravar never requested arbitration of her ADA claim, noting that the only evidence Triangle cited on this point was the complaint form that the union representative filled out for Kravar. Id. The court further noted that this complaint form referred to Kravar s claim that working on the night shift would be an undue hardship for her and that she had brought a doctor s note that she can only do light duty [work]. See id. at *3 n.2. Although the form contains a box labeled I recommend this complaint be submitted to arbitration, the union representative who filled out the form had not checked this box. Id. The court rejected Triangle s argument that Kravar s lawsuit should be dismissed because Triangle had recently notified Kravar of its willingness to arbitrate her ADA claim. Citing EEOC v. Waffle House, Inc., 534 U.S. 279, 289 (2002), the court stated: The arbitration provision that the Court must enforce is the one the union and the realty board entered into, not a hypothetical agreement in which the employer s rather than the union s consent is critical. Kravar III,

15 WL , at *4 ( Absent some ambiguity in the agreement,... it is the language of the contract that defines the scope of disputes subject to arbitration. ). 5 This appeal followed. SUMMARY OF ARGUMENT This appeal squarely presents an important question that the Supreme Court recognized but did not resolve in Pyett: whether an arbitration clause in a collective bargaining agreement is unenforceable where the CBA expressly provides that the CBA s grievance and arbitration procedures are the sole and exclusive remedy for individual discrimination claims, but also permits the union to block a particular employee s access to arbitration. In Pyett, the Supreme Court reiterated that a substantive waiver of federally protected civil rights will not be upheld. Pyett, 129 S. Ct. at 1474 (citing Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 637 & n.19 (1985); Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 29 (1991)). The Court, however, did not resolve the question of whether this CBA was such a substantive waiver because, the Court explained, it was not positioned to resolve in the first instance whether the CBA allows the Union to prevent [employees] from effectively 5 The district court previously denied Triangle s motion for summary judgment on Kravar s ADA claim and granted summary judgment on Kravar s Title VII claims of national origin discrimination and retaliation. See Kravar II, 2009 WL , at *

16 vindicating their federal statutory rights in the arbitral forum. Id. (citing Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 90 (2000)). Here, on the other hand, the district court specifically found that, although the CBA clearly indicated that arbitration was the sole and exclusive remedy for claims of discrimination, including individual statutory discrimination claims, the CBA also gave the union the ability to block an individual employee s access to the arbitration process. The district court s interpretation of the CBA is confirmed by the CBA s plain language. This interpretation is further supported by the position this same union took in an amicus brief it filed in the Supreme Court in Pyett and by the union s actions in preventing Kravar from arbitrating her disability claim. Based on this well-supported finding, the district court correctly ruled that the CBA s arbitration provision operates as a substantive waiver of an individual s statutory rights and is unenforceable on that basis. Moreover, the CBA s arbitration provisions would be unenforceable in any event because, in several important respects, the CBA deprives discrimination claimants of important rights and remedies to which they are entitled under the ADA. 11

17 ARGUMENT THE DISTRICT COURT PROPERLY DENIED TRIANGLE S MOTION TO COMPEL ARBITRATION BECAUSE UNDER THE CBA, THE UNION CAN PREVENT EMPLOYEES FROM EFFECTIVELY VINDICATING FEDERAL STATUTORY CLAIMS. A. An arbitration provision in a CBA that requires statutory discrimination claims to be arbitrated, but also permits the union to block an employee s access to arbitration, constitutes a substantive waiver of federally protected rights and is unenforceable on that basis. Strong federal policy favors enforcement of agreements to arbitrate disputes, including disputes arising under federal anti-discrimination laws. See Pyett, 129 S. Ct. at (arbitration agreements are enforceable under FAA without contravening the policies of congressional enactments giving employees specific protection against discrimination prohibited by federal law ) (quoting Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 123 (2001); see also Arciniaga v. Gen. Motors Corp., 460 F.3d 231, 234 (2d Cir. 2006) (recognizing strong federal policy). This policy favoring arbitration is not without limits, however. Section 2 of the FAA provides that arbitration agreements are valid and enforceable except on such grounds as exist at law or in equity for the revocation of any contract. See 9 U.S.C. 2. As this Court has explained, the purpose of this provision was to make arbitration agreements as enforceable as other contracts, but not more so. 12

18 See Ross v. Am. Express Co., 547 F.3d 137, 143 (2d Cir. 2008) (citations and internal quotations omitted). One important principle underlying the enforceability of agreements to arbitrate statutory claims is that such agreements must permit claimants to vindicate their statutory claims effectively. The Supreme Court, in upholding arbitration agreements that extend to statutory claims, has expressly premised its decisions on the ground that 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. Gilmer, 500 U.S. at 26 (ADEA claim) (quoting Mitsubishi, 473 U.S. at 628 (antitrust laws)). Countering concerns that arbitration could undermine the Congressional purposes behind statutory protections, the Supreme Court has reasoned that so long as the prospective litigant effectively may vindicate its statutory cause of action in the arbitral forum, the statute will continue to serve both its remedial and deterrent function. Gilmer, 500 U.S. at 28 (quoting Mitsubishi, 473 U.S. at 637); see also Randolph, 531 U.S. at (collecting cases). In Pyett, the Supreme Court ruled that the federal policy of enforcing arbitration agreements extends to arbitration clauses in collective bargaining agreements that clearly set forth the intent that statutory discrimination claims of individual employees be arbitrated. See Pyett, 129 S. Ct. at The Court 13

19 reiterated, however, that if the CBA gives the union the ability to prevent [employees] from effectively vindicating their federal statutory rights in the arbitral forum, id. at 1474 (citing Randolph, 531 U.S. at 90), the arbitration agreement would constitute a substantive waiver of federally protected civil rights and would be unenforceable on that ground. Id. at 1474 (citing Mitsubishi, 473 U.S. at 637 and n.19; Gilmer, 500 U.S. at 29). In each of the cases noted above with the exception of Pyett, where the Court remanded for a factual determination the Supreme Court premised its decision to uphold arbitration on the assumption that aggrieved individuals could effectively vindicate their statutory rights in the arbitral forum. The district court here, on the other hand, expressly found to the contrary: the CBA requires union members to arbitrate their individual employment discrimination claims, but then gives Local 32BJ the ability to block a union member s access to arbitration in a particular case. As the district court expressly determined, such an arbitration agreement constitutes precisely the type of substantive waiver that the Supreme Court said could not be countenanced. The plain language of the CBA, the interpretation of that language advanced by Local 32BJ in the Supreme Court in the Pyett case, and the circumstances surrounding Kravar s efforts to arbitrate her disability claim all support the district court s interpretation of the CBA. The sections of the CBA that 14

20 govern the grievance and arbitration procedures (Articles V and VI, respectively) give the Union and the Realty Advisory Board the parties to the agreement, see JA103, 159 complete control over the initiation and conduct of the arbitration process. 6 The CBA provides that if a grievance is not resolved at either an initial meeting or a Step II Grievance Meeting, it may be submitted to arbitration, and the Arbitrator shall schedule a hearing after either party has served written notice upon the other that the grievance was unsuccessful in resolving the dispute. See Art. V 2, Art. VI 3 (JA109-10). Beyond this ability to initiate arbitration, the CBA further authorizes the Union and the RAB to select the individuals who serve on the Panel of Arbitrators; to terminate the services of particular arbitrators and select their replacements; to extend the timeframes for arbitration; and to allocate the costs of the arbitration. See generally Art. VI (JA110-12). Nowhere does the CBA provide any role for an individual employee referred to in the CBA as the grievant to initiate arbitration, select or terminate the arbitrator, extend the timeframes for arbitration, or decide how arbitration costs are to be allocated. Indeed, the CBA does not even require the grievant to be present at any stage of this dispute resolution process. See Art. V 2(a) & (b) (at the first stage the matter is to be taken up between the representative of 6 Two versions of the CBA appear in the Joint Appendix. We refer here to the one that Triangle represents governed Kravar s employment in 2005, JA

21 management and a representative of the Union ) (JA109); Art. VI 7 (if the Union appears at an arbitration without the grievant, the Arbitrator shall conduct the hearing, provided it is not adjourned and shall decide the case based on the evidence adduced at the hearing) (JA111). Thus, notwithstanding the CBA s clear statement that individual discrimination claims must be arbitrated, the CBA s explanation of the grievance and arbitration process speaks only in terms of the role of the Union, and provides absolutely no mechanism or authorization for an individual employee to initiate and conduct arbitration on his or her individual claim. Indeed, the CBA expressly states that individuals cannot compromise or settle any claim without the Union s consent. See Art. VI 7 ( All Union claims are brought by the Union alone, and no individual shall have the right to compromise or settle any claim without the written permission of the Union. ) (emphasis added) (JA111). The district court s conclusion that the contract s plain language permits the union to block an employee s access to arbitration is consistent with the interpretation of that language that Local 32BJ the same union as in this case expressed in the Pyett litigation. In opposition to Triangle s motion to compel arbitration, Kravar submitted to the district court the amicus curiae brief that Local 32BJ filed in the Supreme Court in Pyett. See JA In its brief, Local 32BJ represented that Local 32BJ controls the presentation of grievances... at each 16

22 step and determines which of those grievances will advance through the steps of the grievance procedure.... [and] only Local 32BJ, and not the affected employee-grievant, has the right to bring a statutory discrimination claim to arbitration.... See Brief of SEIU, Local 32BJ, as Amicus Curiae in Support of Respondents in 14 Penn Plaza v. Pyett, No (S. Ct.) (JA590-91, 594). The district court s finding that the CBA in this case gives Local 32BJ control over whether to bring an individual claim to arbitration reflects the typical situation in collective bargaining agreements. See, e.g., Pyett, 129 S. Ct. at 1481 ( usually the case that union controls access to, and presentation of, employees claims in arbitration) (Souter, J., dissenting); see also McDonald v. City of West Branch, 466 U.S. 284, 291 n.10 (1984) (explaining that under most collectivebargaining agreements the union controls access to the arbitrator, the strategy and tactics of how to present the case, the nature of the relief sought, and the actual presentation of the case (internal quotation marks omitted)); Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 742 (1981) (observing that disputes that are subject to arbitration under a collective-bargaining agreement are invariably processed by unions rather than by individual employees ); Gardner- Denver, 415 U.S. at 58 n.19 (noting the union typically has exclusive control over the manner and extent to which an individual grievance is presented ); Vaca v. Sipes, 386 U.S. 171, 184 n.10 (1967) (observing that only [o]ccasionally will the 17

23 CBA give the aggrieved employee, rather than his union, the right to invoke arbitration ). The controlling role of the union here is no small matter with respect to individual discrimination claims. When the union controls an employee s access to the only available venue for pursuing an employment discrimination claim, employees have no assurance that they retain an effective means of vindicating their statutory right to be free from employment discrimination. Indeed, over the years unions have themselves sometimes been a source of discrimination against their own members, based on some of the same traits protected under federal employment discrimination laws. See Barrentine, 450 U.S. at (Burger, C.J., dissenting) (citing the long history of union discrimination against minorities and women ). Accordingly, Congress included specific statutory protections against union discrimination in the ADA, as well as in Title VII and the ADEA. The ADA, for example, includes labor organizations within those covered entities that are prohibited from discriminating against a qualified individual with a disability. See 42 U.S.C (2), 12112(a), (b). Similarly, Title VII makes it unlawful for a labor organization to exclude or expel from its membership, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin. 42 U.S.C. 2000e-2(c)(1) (emphasis added). Recognizing that unions have sometimes colluded with employers to discriminate 18

24 against protected classes of members, Congress also expressly prohibited unions from caus[ing] or attempt[ing] to cause an employer to discriminate against an individual in violation of [Title VII]. 42 U.S.C. 2000e-2(c)(3). The ADEA contains similar proscriptions. See 29 U.S.C. 623(c). Even when the union is not acting out of discriminatory animus, however, situations can arise where the union may have a legitimate reason for declining to arbitrate an individual s employment discrimination claim. In Pyett, for example, the Union maintained that it could not arbitrate the plaintiffs age discrimination claims because it had already approved of the Spartan Security contract that the plaintiffs claimed gave rise to their allegations of age discrimination. See Pyett v. Pennsylvania Bldg. Co., 498 F.3d at 90-91, 94 n.5. The union, having initiated arbitration on a number of plaintiffs complaints, withdrew the age claims from the arbitration process, and the arbitration proceeded with the employees remaining claims. Id. Similarly here, even if the union s reasons for not arbitrating Kravar s disability claim are not tainted by unlawful discrimination, they nevertheless left Kravar unable to pursue her claim under the CBA. As the district court specifically found, Kravar asked the union to arbitrate her disability claim, but the union simply declined to do so. Kravar III, 2009 WL , at *3. As the district court noted, the Complaint Form filled out by the union indicated that 19

25 Kravar was claiming: she needed a daytime job because of her medical and physical limitations; her medical restrictions were documented by a doctor s note; and she believed she was entitled to this accommodation for her physical restrictions because of her seniority with the company. See id. at *3 n.2. The district court further recounted Kravar s description of her conversation with the union representative who, Kravar says, laughed when Kravar told him she wanted to arbitrate her disability claims and replied that the union would most likely dismiss her complaint. Id. at 3. Thus, the district court s factual findings demonstrate that the union chose not to pursue arbitration of Kravar s disability claim. 7 Triangle cannot remedy the substantive waiver of federal rights that exists here simply by belatedly offering Kravar the opportunity to arbitrate. Triangle made such an offer to Kravar in April of this year, soon after the Supreme Court issued its decision in Pyett, and then argued that its offer cured the substantive waiver problem. The district court correctly rejected this argument, reasoning 7 Although this Court reviews de novo a district court s denial of a motion to compel arbitration and the legal conclusions supporting the denial, this Court reviews the district court s underlying factual findings under the clearly erroneous standard. See Specht v. Netscape Commc ns Corp., 306 F.3d 17, 26 (2d Cir. 2002); Chelsea Square Textiles, Inc. v. Bombay Dyeing & Mftg. Co., 189 F.3d 289, 295 (2d Cir. 1999). The record in this case amply supports the district court s factual findings concerning the union s role in blocking Kravar s efforts to pursue her disability claim, and these findings are not clearly erroneous. 20

26 that the relevant focus, in determining whether Kravar was bound by the CBA s arbitration provision, is the language of the CBA, not what Triangle might offer to an employee after-the-fact. See EEOC v. Waffle House, 534 U.S. at 289 ( Absent some ambiguity in the agreement,... it is the language of the contract that defines the scope of disputes subject to arbitration. ). There is no merit to Triangle s contention, raised for the first time on appeal, that this Court should defer to an arbitrator s determination of the question whether the CBA permits the union to block an individual employee s access to the CBA s grievance and arbitration procedures. See Triangle s Opening Brf. at Except where the parties have clearly and unmistakably provided otherwise, the question of arbitrability e.g., whether a collective-bargaining agreement creates a duty for the parties to arbitrate the particular grievance is undeniably an issue for judicial determination. See AT&T Techs., Inc. v. Commc ns Workers of Am., 475 U.S. 643, 649 (1986); see also Howsam v. Dean Reynolds, Inc., 537 U.S. 79, 84 (2002); In re Am. Express Merchs. Litig., 554 F.3d 300, (2d Cir. 2009); Vera v. Saks & Co., 335 F.3d 109, (2d Cir. 2003). Nothing in this CBA clearly and unmistakably provides that the threshold jurisdictional question of whether an employee must submit his or her statutory discrimination claims to arbitration must, itself, be referred to arbitration rather than decided by a court. Triangle s reliance on the broad wording of the 21

27 arbitration clause in the 32BJ CBA, see id. at 35, is insufficient. Indeed, in AT&T Techs. the Supreme Court, construing CBA language that was similarly broad, reversed the Seventh Circuit s decision to defer the jurisdictional question to an arbitrator, stating [i]t is the court s duty to interpret the agreement and to determine whether the parties intended to arbitrate [these] grievances. See AT&T Techs., 475 U.S. at Likewise, the very general CBA language in this case fails to provide the clear and unmistakable indication that the AT&T Techs. Court required. Id. at In sum, the district court properly found that the CBA includes no provision for an employee to invoke arbitration other than through the union and gives the union the authority to block a particular employee s access to arbitration. Furthermore, the concern that a union might exercise its authority under a CBA scheme such as this to block an individual employee from arbitrating his or her discrimination claim is not merely an academic or hypothetical concern. Pyett and this case provide two real-life examples of a union thwarting an individual s access to arbitration. The district court s factual findings that, in this instance, the union declined to refer Kravar s claim to arbitration and gave Kravar no opportunity to invoke arbitration on her own are supported by the record and are not clearly 8 The language in the AT&T Techs. CBA required the parties to arbitrate any differences arising with respect to the interpretation of this contract or the performance of any obligation hereunder. See 475 U.S. at

28 erroneous. Thus, the district court correctly found not only that the CBA, as written, permits the union to block an employee s access to arbitration, but that the union, did, in fact, block Kravar s access to arbitration here. Triangle s last-minute offer, in April of this year, to utilize the grievance and arbitration procedures of the CBA for Kravar s claim does not alter either the plain language of the CBA or what occurred four years earlier, when Kravar first asserted her disability claim. Finally, Triangle has litigated this matter for three years in court without previously raising the issue of arbitrating the jurisdictional question. There is no basis for this Court to countenance Triangle s belated efforts to have the jurisdictional question arbitrated. B. The arbitration agreement in the CBA is unenforceable as to Kravar for the additional reason that the CBA deprives union members of important rights and remedies to which they are entitled under the ADA. The CBA s arbitration provision is unenforceable, in any event, for the wholly separate reason that it deprives employees claiming disability discrimination of several important rights and remedies that Congress made available under the ADA. Although the district court did not rule on this issue, Kravar raised it generally below and has reasserted it on appeal. It provides an additional basis, supported by the record, for affirming the district court s denial of Triangle s motion to compel arbitration. 23

29 Several aspects of the CBA s arbitration scheme conflict with substantive rights afforded under the ADA and other federal employment discrimination statutes. For example, any substitute for a judicial proceeding must provide a neutral forum for an employee to pursue her federal statutory claims. See, e.g., Walker v. Ryan s Family Steak Houses, Inc., 400 F.3d 370, 385 (6th Cir. 2005) (arbitral forum is not an effective substitute for a judicial forum if arbitratorselection process itself is fundamentally unfair ); cf. Randolph, 531 U.S. at 89 (arbitration must permit litigant to effectively... vindicate his or her statutory cause of action in the arbitral forum ). Here, even if the union had allowed Kravar to pursue her discrimination claim through the arbitration process, the CBA s failure to provide for a neutral arbitrator would have left Kravar without an effective means of vindicating her statutory rights under the ADA. The CBA gives Triangle s agent the RAB authority, in concurrence with the union, to select who serves on the panel of potential arbitrators and to remove individuals from the panel and select their replacement. See CBA Art. VI (JA110-12). The CBA provides a grievant, on the other hand, no input in selecting either the panel of potential arbitrators or the specific arbitrator who would be chosen from the panel to hear the claim. Consequently, even if the union allowed a grievant to pursue his or her individual discrimination claim through the arbitration process, the CBA s failure to provide the grievant any role in the arbitrator selection process makes the 24

30 arbitration clause unenforceable as to individual employees like Kravar. See Murray v. United Food & Commercial Workers, 289 F.3d 297, (4th Cir. 2002) (employer s control over list of potential arbitrators creates fundamentally unfair agreement that court will not enforce); Hooters of Am., Inc. v. Phillips, 173 F.3d 933, (4th Cir. 1999) (same). The CBA s arbitration agreement is also unenforceable as to Kravar because it prevents the arbitrator from awarding a prevailing employee one of the ADA s most significant remedies an award of attorney s fees to a prevailing claimant. See 42 U.S.C (a) (expressly incorporating Title VII remedies into ADA); 42 U.S.C. 2000e-5(k) (authorizing award of attorney s fees). Congress contemplated that private individuals would play a critical role in enforcing statutory protections against employment discrimination, supplementing the EEOC s efforts to enforce federal anti-discrimination laws. See, e.g., Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 416 (1978) (Congress has cast Title VII plaintiff in role of private attorney general ); Alexander v. Gardner- Denver Co., 415 U.S. at 45 (describing important role of private individuals in enforcement of Title VII); see also New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 63 (1980) (reiterating importance of attorney fee awards in administrative proceedings addressing employment discrimination claims). 25

31 As in the Title VII enforcement regime, the ADA s provision for an award of reasonable attorney s fees to a prevailing plaintiff is a critically important element in the overall statutory scheme to accomplish the ADA s remedial and deterrent purposes. Specifically, such awards make it easier for a plaintiff of limited means to bring a meritorious suit and, thus, encourage claimants to vindicate a policy that Congress considered of the highest priority. See, e.g., Christiansburg, 434 U.S. at (prevailing plaintiff in Title VII case ordinarily is to be awarded attorney s fees in all but special circumstances ) (citations omitted). The CBA s arbitration scheme, however, fails to include this important remedy. Rather, it authorizes an arbitrator to award only those costs and expenses... incurred by the Union in the processing of the grievance and arbitration proceeding, CBA Art. VI 4 (emphasis added) (JA111), and provides no authorization for an arbitrator to award attorney s fees or any other costs incurred by a prevailing grievant in a discrimination claim. Furthermore, the CBA s arbitration scheme is substantively deficient because the CBA drastically limits a grievant s time for filing a claim as compared to the time limit for filing a charge under the ADA. 9 In a state like New York that has a state anti-discrimination statute, the ADA provides individuals up to Kravar did not identify this specific deficiency below, but it nevertheless constitutes one of several critical deficiencies in the CBA s arbitration scheme. 26

32 days after an alleged act of discrimination to file a discrimination charge with the EEOC, ensuring that prospective claimants have adequate time to determine whether they have a basis to pursue a claim. See 42 U.S.C (a) (incorporating Title VII s 300-day charge filing period where there is a state or local agency, 42 U.S.C. 2000e-5(e)(1)). The CBA, on the other hand, requires most grievances to be filed within 120 days of the contested incident, and some grievances within only 45 days, significantly reducing the filing time that Congress provided by law. See CBA Art. V 2(d) (JA109-10). Thus, even if the CBA permitted employees access to arbitration, this arbitration clause nevertheless would be unenforceable because, when viewed as a whole, it significantly undermines individual enforcement rights and remedies that Congress established under the ADA. See Town of Newton v. Rumery, 480 U.S. 386, 392 (1987) (a promise is unenforceable if the interest in its enforcement is outweighed in the circumstances by a public policy harmed by enforcement of the agreement ) (citing Restatement (Second) of Contracts 178(1)). The material differences between the rights and remedies available under the ADA, and those available under the CBA, provide an additional basis for the Court to affirm the district court s refusal to compel Kravar to arbitrate her ADA claim Because the arbitration clause in this CBA is a highly integrated unit containing multiple invalid provisions, in our view it would not be proper for a 27

33 Finally, we note that Triangle Services urges this Court to exercise pendent appellate jurisdiction over the district court s denial of summary judgment on Kravar s ADA claim. See Appellant Triangle s Opening Brief at There is no sound basis for granting such pendent jurisdiction here. 11 Therefore, we take no position on the largely factual question of whether the district court properly denied summary judgment on Kravar s ADA claim. court to simply sever, or rewrite, each invalid provision. Rather, the entire arbitration clause should be deemed unenforceable as to individual employees such as Kravar. See Hooters, 173 F.3d at 940; Graham Oil Co. v. ARCO Prods. Co., 43 F.3d 1244, (9th Cir. 1994). 11 Triangle contends that this Court should exercise pendent appellate jurisdiction over Kravar s ADA claim on the ground that [t]he arbitration is directly related to [Kravar s] claims under the ADA as it seeks to enforce those rights therein. Triangle Brf. at 45. This misstates the standard for pendent jurisdiction, however. Pendent jurisdiction is appropriate where a non-appealable issue, such as this summary judgment question, is either inextricably intertwined with the issue on appeal or is necessary to ensure meaningful review of the arbitration issue. See cases cited in Triangle Brf at Issues are inextricably intertwined if there is substantial factual overlap bearing on the issues raised. Clubside, Inc. v. Valentin, 468 F.3d 144, 161 (2d Cir. 2006). Here, there is no factual overlap between arbitration issue and the question of whether Kravar was disabled within the meaning of the ADA when she requested accommodation. The latter question would require this Court to delve into the factual record on matters relating to Kravar s physical limitations and her medical prognosis issues that are completely extraneous to the interpretation of the CBA s arbitration clause. Thus, a determination of whether the district court correctly found disputed issues of fact on Kravar s disability claim would not help resolve the arbitration issue that is properly before this Court. This Court should, therefore, decline Triangle s invitation to extend pendent appellate jurisdiction over the district court s summary judgment decision. See Morris-Hayes v. Bd. of Educ., Chester Union Free Sch. Dist., 423 F.3d 153, (2d Cir. 2005). 28

34 CONCLUSION For the foregoing reasons, the decision below should be affirmed. Respectfully submitted, JAMES L. LEE Deputy General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel SUSAN R. OXFORD Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E., 5th Floor Washington, DC

35 CERTIFICATE OF COMPLIANCE AND VIRUS SCAN This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 6,782 words from the Statement of Interest through the Conclusion, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2003 with Times New Roman 14-point font. I certify that a PDF version of this brief has been scanned for viruses, using the Symantec AntiVirus, version 9.0.3, and that no virus has been detected. Susan R. Oxford Attorney for Equal Employment Opportunity Commission Dated:

36 CERTIFICATE OF SERVICE I certify that two copies of the foregoing Brief of the Equal Employment Opportunity Commission As Amicus Curiae were sent September 17, 2009, by first-class mail, postage prepaid, to: Darnley D. Stewart, Esq. GISKAN SOLOTAROFF ANDERSON & STEWART LLP 11 Broadway, Suite 2150 New York, New York Attorneys for Plaintiff-Appellee Terence M. O Neil, Esq. Mark N. Reinharz, Esq. BOND, SCHOENECK & KING, PLLC 1399 Franklin Avenue, Suite 200 Garden City, New York Attorneys for Defendant-Appellant I further certify that a virus-scanned PDF version of the brief was also ed to Darnley D. Stewart and Mark N. Reinharz on September 17, Susan R. Oxford