Federal Employment Discrimination Cases

Transcription

1 The federal employment discrimination cases selected for discussion in this paper involve a labor union as a party or discuss issues under collective bargaining agreements or seniority systems. The cases summarized generally cover the twelve-month period from June 1998 to June This paper is the product of the collaborative efforts of Louis P. Malone, III, Teresa W. Murray, and Dorsia Smith who are a Partner, Associate, and Law Clerk at the law firm of O Donoghue & O Donoghue, respectively. 1

2 TABLE OF CASES Aka v. Washington Hospital Center, 156 F.3d 1284, 159 L.R.R.M. 2467, 77 FEP Cases 1840, 8 A.D. Cases 1093 (D.C. Cir. 1998)... 5 Aldrich v. Boeing Co., 146 F.3d 1265, 8 A.D. Cases 424 (10 th Cir. 1998) Barnett v. U.S. Air, Inc., 157 F.3d 744, 8 A.D. Cases 1073 (9 th Cir. 1998)... 8 Page # Bergeron v. Henderson, 185 F.R.D. 10 (D. Me. 1999). 18 Carson v. Giant Food, Inc., 161 L.R.R.M. 2129, 79 FEP Cases 976 (4th Cir. 1999) Carter v. Chrysler Co., 173 F.3d 693, 79 FEP Cases 1253 (8 th Cir. 1999).. 17 Communication Workers of America, AFL-CIO v. Bell Atlantic West Virginia, Inc., 27 F.Supp.2d 66, 159 L.R.R.M. 2903, 78 FEP Cases 630 (D.D.C. 1998) Craft v. Campbell Soup Co., 161 F.3d 1199, 78 FEP Cases 713 (9 th Cir. 1998).. 13 Laurin v. Providence Hosp., 150 F.3d 52, 158 L.R.R.M. 2977, 8 A.D. Cases 768 (1 st Cir. 1998).. 6 Lujan v. Pac. Maritime Ass n, 165 F.3d 738, 9 A.D. Cases 59 (9th Cir. 1999).. 4 Ozolins v. Northwood-Kensett Community School District, 1999 WL (N.D. Iowa 1999).. 14 Parkins v. Civil Constructors of Illinois, 163 F.3d 1027, 78 FEP Cases 1329 (7 th Cir. 1998). 20 Szarka v. Reynolds Metals Co., 17 F.Supp.2d 115, 159 L.R.R.M (N.D. N.Y. 1998). 19 Thomas v. Runyon, 36 F.Supp.2d 1284 (D. Kan. 1999). 9 2

3 Vannoy v. Ocsea Local 11, 36 F.Supp.2d 1018 (S.D. Ohio 1999). 22 Waterman v. Transport Workers Union Local WL (2 nd Cir. 1999) 23 Westvaco Corporation v. United Paperworkers Int l Union, 171 F.3d 971, 160 L.R.R.M. 2844, 79 FEP Cases 595 (4 th Cir. 1999).. 15 Willis v. Pacific Maritime Ass n, 162 F.3d 561, 160 L.R.R.M. 2053, 8 A.D. Cases 1632 (9 th Cir. 1998). 7 Wright v. Universal Maritime Service Corporation et al 119 S. Ct. 391, 159 L.R.R.M (1998) 10 3

4 REASONABLE ACCOMODATION & COLLECTIVE BARGAINING AGREEMENTS ADA Lujan v. Pac. Maritime Ass n, 165 F.3d 738, 9 A.D. Cases 59 (9th Cir. 1999) Lujan sought work as a longshoreman, even though he suffered from chronic back pain, the loss of his right arm and hand, and difficulty moving his neck. After performing one assignment as a longshoreman, Lujan took an employment examination to become a different class and more senior longshoreman. The majority of the exam tested physical strength and agility. After Lujan failed the exam, he filed an action against the Pacific Maritime Association ( PMA ) and the International Longshoremen s and Warehousemen s Union and two of its local unions, claiming violations under the ADA, California s Fair Employment and Housing Act, and state tort law for negligent infliction of emotional distress. The district court granted summary judgment to the Association and the Union. The Ninth Circuit reversed the grant of summary judgment. The court held that Lujan could argue that he was a qualified individual with a disability under the ADA, even though he made a statement during a social security disability proceedings that he was unable to work. The court also rejected the Association s argument that Lujan was physically unqualified for any longshore jobs. The court reasoned that Lujan can perform some tasks and sought those assignments without violation of the seniority system. Hence, he should not be denied the opportunity on the ground that his physical disability prevents him from performing some other assignment which he does not want or is required to accept. The court also held that Lujan is entitled under the ADA to an accommodation for jobs for which he is qualified so long as the accommodation does not violate PMA s and the Union s bona fide seniority system. The court found that Lujan s requests to register him as a Class B longshoreman and to credit 4

5 him with seniority at an accelerated rate would violate the seniority system. However, the court stated that Lujan s request to turn down any physically demanding assignment without losing priority should be remanded for consideration by the district court. Furthermore, the court affirmed the dismissal of the Lujan s claims for negligent infliction of emotional distress. Aka v. Washington Hospital Center, 156 F.3d 1284, 159 L.R.R.M. 2467, 77 FEP Cases 1840, 8 A.D. Cases 1093 (D.C. Cir. 1998) Aka, a Nigerian, was employed as an orderly at Washington Hospital Center ( WHC ). After he had heart bypass surgery and was unable to perform his duties, he applied for vacant positions at WHC. However, his applications were turned down and Aka sued the Hospital for age discrimination as well as the ADA for failing to reasonably accommodate his disability by reassigning him to a vacant position. The district court granted summary judgment to the hospital and Aka Appealed. On the age claim, the Court of Appeals reversed the holding that Aka had not produced sufficient evidence to suggest that the Hospital s explanation for not hiring him was pretext. The court also held that that Aka s reasonable accommodation claim under the ADA should be remanded for further determination. The court rejected the Hospital s claim that Aka s inability to perform his job even with reasonable accommodation rendered him eligible for the reassignment. The court remanded the case to the district court stating that it should determine whether the Hospital had an obligation under the ADA to reassign Aka to a vacant position. The district court was to also consider whether the Collective Bargaining Agreement permitted the Hospital to reassign Aka to a vacant position without violating the CBA s provision on seniority and posting vacancies, and whether the ADA required such a reassignment. 5

6 Laurin v. Providence Hosp., 150 F.3d 52, 158 L.R.R.M. 2977, 8 A.D. Cases 768 (1 st Cir. 1998) Laurin was employed as a staff nurse for six years at Providence Hospital and worked a rotating shift, which included one-third of her scheduled hours in the evening or night. After she had experienced a black out, Laurin was diagnosed by a neurologist with syncope or fainting. The neurologist recommended that she have a regular schedule of work hours and Laurin requested that her immediate supervisors give her a permanent reassignment to a days-only position. After her supervisors failed to consider her request, Laurin contacted a representative from the Massachusetts Nurses Association ( MNA ), the union representing staff nurses at the Hospital. At a meeting with a MNA representative, Laurin was instructed that her supervisors would investigate the situation. Meanwhile, she was sent a letter stating that shift rotation was a part of the CBA between the Hospital and the MNA. However, the Hospital did temporarily accommodate Laurin to a days-only schedule for six weeks. Laurin s condition deteriorated and she was subsequently diagnosed with a seizure disorder. Her neurologist reported that daytime hours were necessary, but the Hospital only granted an extension of the temporary days-only accommodation. Laurin contacted the MNA who did not submit a grievance on her behalf or assist in presenting her grievance to arbitration. Instead, the MNA informed her about the right to pursue a grievance. Laurin filed a grievance which was denied by the Hospital following a hearing. She was later terminated after failing to appear for work. The district court granted summary judgment to the Hospital. In particular, the court ruled that Laurin s discharge for refusal to work evening and night shifts did not violate the ADA and did not constitute a breach of the Collective Bargaining Agreement CBA between union and employer. The First Circuit affirmed the grant of summary judgment to the Hospital, rejecting Laurin s argument that the Hospital violated the ADA. The court noted that an employer does not need to accommodate a disability by foregoing an essential function of the employment position and that shift-rotation was such an essential function as required by the Hospital. Moreover, the court stated that Laurin failed to produce evidence that the Hospital had discriminatory intent in maintaining that shift-rotation was an essential job function. The court also held that Laurin failed to produce evidence that the Hospital breached the CBA, thereby violating National Labor Relations Act 301. In particular, Laurin did not show that the reason for her discharge was pretextual or 6

7 that her requested accommodation was denied because of discriminatory intent. Hence, the court stated that the Massachusetts Nurses Association (MNA) had no duty to pursue her grievance. Willis v. Pacific Maritime Ass n, 162 F.3d 561, 160 L.R.R.M. 2053, 8 A.D. Cases 1632 (9 th Cir. 1998) Willis worked as a Class A longshore worker for Pacific Maritime Association and is a member of the International Longshore and Warehouse Union ( ILWU ). After receiving various injuries to his back and neck, he requested placement on the Dock Preference Board which receives priority for light duty work. He also requested a transfer to Local 34 which represents marine clerks. After both requests were denied due to his lack of seniority, Willis filed discrimination charges with the EEOC and California Department of Fair Employment and Housing ( DFEH ). He alleged that the employers association and union violated the ADA by failing to provide him with light duty work. The district court granted summary judgment to the Association. In affirming the District Court, the Ninth Circuit held that an employee s proposed accommodation under the ADA is unreasonable if it conflicts with a bona fide seniority system established under the CBA. The court noted its agreement with those circuits that adopted this rule. Since light duty work positions and transfers to Local 34 are based on seniority, Willis accommodation request conflicts with the CBA s bona fide seniority system. The court also rejected Willis argument that the seniority system was not bona fide. The court found that the system was created for legitimate purposes, rather than discriminatory purposes. Moreover, the court held that Willis did not provide any evidence which showed that the Association and union deviated from the seniority system to show that the proposed accommodations were unreasonable. 7

8 Barnett v. U.S. Air, Inc., 157 F.3d 744, 8 A.D. Cases 1073 (9 th Cir. 1998) Barnett was employed as a customer service agent for U.S. Air. After injuring his back, he took a leave of absence and then transferred to a swing-shift position in the mailroom. After the mailroom position became open for bidding from employees with seniority, Barnett learned that he would have to work in the cargo area. His requests to modify his position within the cargo area were denied. Barnett filed a charge of discrimination and retaliation with the EEOC under the ADA. The district court granted summary judgment to the Company. The Ninth Circuit held that making an exception for Barnett within the employee s seniority system was not a reasonable accommodation. The court noted that seniority systems are common within the airline industry and that the Company s seniority policy does not have an exception which could encompass disabled employees. The court also found that the Company did not have to purchase special lifting equipment for Barnett. The court reasoned that Barnett did not show that the special lifting equipment would provide him with any accommodation of his disability not already provided by the forklifts furnished in cargo. The court also held that Barnett s request to modify the shift requirements of the cargo position was not a reasonable accommodation. Reasonable accommodations do not require that an employer eliminate or reassign essential job functions. Furthermore, the court held that the ADA and its regulations do not create independent liability for the Company for failing to engage in discussions with Barnett to find a reasonable accommodation. Moreover, the court found that the Company did not retaliate against Barnett because the Company offered some legitimate, nondiscriminatory reasons for the adverse employment decision. Aldrich v. Boeing Co., 146 F.3d 1265, 8 A.D. Cases 424 (10 th Cir. 1998) Aldrich was employed as an assembly worker for Boeing when he experienced pain in his right hand. An orthopedic surgeon determined that Aldrich was unable to return to work and provided him with a signed medical leave of absence form. Upon returning to work, Aldrich was informed that he could not perform his duties. He was placed on medical leave and received permanent and 8

9 total disability benefits under the Company s disability plan. He filed an action against the Company, claiming a violation of the ADA. The Tenth Circuit held that Aldrich could bring his ADA claim, even though he applied for and received benefits under the Company s plan. The court pointed to its decision in Rascon v. U.S. West Communications, 143 F.3d 1324 (10 th Cir. 1998), where it held that the application for, or receipt of, social security disability benefits does not prevent the plaintiff from pursuing a claim under the ADA. The court also found that some factual questions as to reasonable accommodations existed, which precluded summary judgment. Some of the positions Aldrich claimed were reasonable accommodations were rejected by the court because transferring him into those positions would have violated the seniority provisions of the CBA. The court found that the ADA does not require accommodations that conflict with collective bargaining agreements. TITLE VII/ RELIGIOUS DISCRIMINATION Thomas v. Runyon, 36 F.Supp.2d 1284 (D. Kan. 1999) Thomas was employed as a mail carrier by the United States Postal Service from 1987 to In 1993, Plaintiff told his employer that he objected to working on Saturdays because of his religious beliefs as a member of the Church of God. Thomas requested that the Union approve the arrangement where he could avoid working on a Saturday. The Union, however, did not approve the arrangement. After using his annual leave and finding voluntary replacement, Thomas refused to work on Saturdays and went AWOL at times. He was disciplined and ultimately terminated in Thomas then filed suit against his employer claiming religious discrimination in violation of Title VII. The district court granted the motion for summary judgment in favor of the Employer. The district court ruled that excusing Thomas from Saturday work would have violated the terms of the Employer s collective bargaining agreement with the Union, which required the local union to regulate days off pursuant to the Local Memorandum of Understanding (LMOU). Moreover, the LMOU placed Thomas, like all residential letter carriers, on a rotating work schedule that required him to work five Saturdays out of six. The court noted that the Employer s management did not have the authority to change the work schedule because it would violate the 9

10 LMOU. Hence, the court found that the Employer s failure to excuse Thomas from working on Saturdays did not constitute religious discrimination in violation of Title VII. The district court also ruled that the Employer s failure to find another position for Thomas did not constitute religious discrimination. The court found that the Employer s willingness to consider an alternative arrangement for Saturday work and its request of the Union to waive the Saturday work requirement for Thomas showed steps consistent with the Employer s duty to attempt a reasonable accommodation of an employee s religious beliefs. In addition, the court acknowledged that the Employer s recommendation that Thomas bid for another position, which he rejected. Beyond these steps, the court stated that the accommodations sought by Thomas would have violated the collective bargaining agreement with the Union. ARBITRATION OF STATUTORY CLAIMS Wright v. Universal Maritime Service Corporation et. al 119 S. Ct. 391, 159 L.R.R.M (1998) Wright was a longshoremen working for various Stevedore companies in Charleston, South Carolina and was a member of Local 1422 of the International Longshoremen s Association, AFL-CIO ( Union ). The companies were represented by the South Carolina Stevedores Association (SCSA) which had a CBA with the Union. The CBA provided that matters under dispute and all matters affecting wages, hours, and other terms and conditions of employment are to be resolved through a grievance procedure up to and including arbitration, if necessary. The CBA also stated that it was the intention of the parties that no part of the CBA violate federal or state law. The Longshore Seniority Plan, to which Wright was a member, also committed any dispute concerning or arising out of the terms and/or conditions of this Agreement, or dispute involving the interpretation of application of this Agreement to a grievance procedure. 10

11 In February 1992, Wright sustained a heel and back injury while on the job. He was compensated through a settlement with the employer for his injuries and was also awarded social security disability benefits. In January 1995, Wright returned to work with a medical clearance and reported to work for four stevedore companies. The fifth company, however, discovered that Wright had settled a permanent disability claim and refused to employ him. Once the Union s contentions that the employer misinterpreted the CBA and violated the ADA by refusing Wright based on his disability had proven unsuccessful, the Union suggested to Wright that he file a charge of discrimination against the SCSA. Wright, therefore, sued the SCSA and its six stevedoring companies individually for violating the ADA. The district court, later affirmed by the Fourth Circuit, dismissed Wright s claims because he failed to exhaust his administrative remedies the grievance procedure in the CBA. The Fourth Circuit found that the CBA s grievance and arbitration provision was sufficiently broad to cover Wright s ADA claim. Wright appealed to the Supreme Court. The Supreme Court began its analysis by recognizing the tension between two lines of cases. The Court noted that [w]hereas Gardner-Denver stated that an employee s rights under Title VII are not susceptible of prospective waiver, 415 U.S., at 51-52, Gilmer held that the right to a federal judicial forum for an ADEA claim could be waived. The Court resolved the tension by explaining that Gilmer involved an individual s waiver of his own rights not a union waiver; and that Gardner-Denver at least stands for the proposition that the right to a federal judicial forum is of sufficient importance to be protected against less-than-explicit union waiver in a CBA. The Court found that the presumption of arbitrability is only appropriately applied to issues involving the interpretation of the terms of the CBA and does not apply when the issue involves the meaning of federal employment discrimination statutes. The Court then drew upon its earlier case Metropolitan Edison Co. v. NLRB to conclude that in order for a union to waive a statutorily protected right, it must be explicitly stated in the CBA evidencing a clear and unmistakable waiver. 11

12 Lastly, the Court observed that the CBA lacked an explicit incorporation of statutory antidiscrimination requirements and that its clause memorializing the parties intent not to violate federal laws failed to subject the employers to the contractual commitment to comply with the ADA. Notably, the Court declined to decide whether a union-negotiated clear and unmistakable waiver of members statutory rights would be enforceable. Carson v. Giant Food, Inc., 161 L.R.R.M. 2129, 79 FEP Cases 976 (4th Cir. 1999) A class of eleven current and former employees of the supermarket chain, Giant Food filed suit against the employer alleging race, age and disability discrimination in violation of Title VII, the ADEA, and the ADA. Giant Food asserted that since the employees were represented by four separate unions, their claims were subject to the grievance and arbitration provisions of the four CBAs. The CBA s provided for the arbitration of any grievance or dispute aris[ing] between the parties regarding the terms of this agreement and any controversy, dispute or disagreement... concerning the interpretation of the provisions of this agreement. The CBAs also contained general antidiscrimination clauses where the union and employer agree not to discriminate against any employee or applicant for employment because of race, color, religious creed, origin, age or sex. The court decided two central questions. First, who decides whether the CBAs require the arbitration of statutory discrimination claims? Since courts do not presume that the parties agreed to arbitrate arbitrability, they will presume that the judiciary decides arbitrability, unless the CBA contains a clear and unmistakable provision to that effect. Thus, the court found that broad arbitration clauses that generally commit all interpretive disputes relating to or arising out of the agreement do not satisfy the clear and unmistakable test. The court went on to suggest that parties who wish to allow the arbitrator to decide if issues are arbitrable need only state that all disputes concerning arbitrability of particular disputes under this contract are hereby committed to arbitration, or words to that clear effect. The second question the court decided was whether the parties agreed to arbitrate statutory discrimination claims. The court pointed out that although 12

13 unions through CBAs can require employee members to follow a grievance procedure for their discrimination claims prior to filing suit in federal court, the CBAs must clearly and unmistakably require the arbitration of these claims as required by Wright. The court stated that the Wright decision provided two avenues to meet the clear and unmistakable requirement. One method involves a clear provision where the parties explicitly agree to submit federal discrimination claims to arbitration that goes beyond the general language contained in Giant s agreements. The other option is to craft a provision, similar to a nondiscrimination clause, which unmistakably incorporates the discrimination statues as part of the agreement. The court ultimately found that the general antidiscrimination clause and the arbitration provision failed to meet these standards. Craft v. Campbell Soup Co., 161 F.3d 1199, 78 FEP Cases 713 (9 th Cir. 1998) Craft was employed by Campbell Soup Company and a member of the Food Process Workers and Warehousemen and Helpers Local Union 228 ( Union ). He filed a grievance against the Company alleging racial discrimination, harassment, health and safety concerns, and additional claims. The CBA between Campbell Soup and the Union provided that disputes under this provision shall be subject to the grievance and arbitration procedure provided in the CBA. After the grievance was not resolved, the Union referred the matter to arbitration. While the grievance was pending, Craft filed in district court claims for race discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, and state law claims for assault and emotional distress. The district court granted summary judgment for the Company on Craft s supplemental state law claims. However, the court denied summary judgment for the Company on Craft s other claims. The Ninth Circuit held that appellate jurisdiction was lacking and therefore dismissed the Company s appeal. The court noted that the Court of Appeals has jurisdiction only if the Federal Arbitration Act ( FAA ) applies. Moreover, the court stated that jurisdiction depends upon the proper interpretation of the FAA in relation to employment contracts which is a question of first impression in the Ninth Circuit. The court reasoned that Section 2 of the FAA, the pre-new deal understanding of the Commerce Clause, and the legislative history of the FAA suggest that the FAA does not apply to labor or employment contracts. The court 13

14 also looked at Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 40 LRRM 2113 (1957), Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 55 FEP Cases 1116 (1991), and Allied-Blue Terminix Cos. v. Dobson, 513 U.S. 265, 279 (1995) when holding that the FAA does not apply to employment contracts. Accordingly, the FAA is inapplicable to the CBA which governs Craft s employment. The Ninth Circuit, therefore, has no jurisdiction over the Company s appeal. Ozolins v. Northwood-Kensett Community School District No. C PAZ, 1999 WL (N.D. Iowa March 17, 1999) Ozolins was a music teacher with the Northwood-Kensett Community School District for 11 years. After being denied FMLA leave to care for her ailing 79 year old mother, she filed a complaint against the School District. In addition to deciding whether Ozolins was entitled to FMLA leave, the court decided whether she should have followed the grievance procedure contained in Northwood-Kensett Education Association, the local union, and the school district s CBA. The CBA incorporated by reference the provisions of the FMLA with the qualification that the FLMA s incorporation into the contract in no way replace, reduce, or change any articles on this agreement. The CBA also provided for a four step grievance procedure ending in impartial binding arbitration. Citing Wright the court found that even if the CBA incorporated the statute, the arbitrator would be deciding questions of federal law and not what the parties have agreed to, which is within the Arbitrator s purview. The court found that by incorporating the FMLA with a qualification, the CBA was not clear about whether the parties agreed to arbitrate FMLA claims. The court also noted that Ozolins was not a member of the Union at the initial stages of the dispute and that the union, therefore, refused to submit a grievance over the matter. If Ozolins were required to utilize the grievance procedure, the court reasoned that she would have no avenue of recourse because the union would not have been empowered under the CBA to engage in the procedure on her behalf. Thus, the court found that Ozolins was not required to arbitrate her FMLA claim. 14

15 STRIKING ARBITRATION AWARDS ON PUBLIC POLICY GROUNDS Westvaco Corporation v. United Paperworkers Int l Union, 171 F.3d 971, 160 L.R.R.M. 2844, 79 FEP Cases 595 (4 th Cir. 1999) Westvaco Corporation fired an employee for sexually harassing a co-worker. The employee challenged his discharge under the collective bargaining agreement between Westvaco and the United Paperworkers International Union. The arbitrator found that while the employee s actions did violate the Company s sexual harassment policy, the Company s actions were also at fault. In particular, Company officials did not permit the employee to enter its Employee Assistance Program and the officials also did not instruct the employee to refrain from his conduct, even though they had knowledge of the behavior. The arbitrator ordered the reinstatement of the employee without back wages. The Company filed suit challenging the arbitral decision under section 301 of the Labor Management Relations Act, 29 U.S.C In particular, the Company claimed that the arbitrator exceeded the scope of his authority and that reinstatement contravened public policy. The district court granted summary judgment for the Company. The Fourth Circuit, however, enforced the arbitral award. The Fourth Circuit stated that judicial interference with arbitral awards threatens the efficacy and finality of arbitration. Therefore, most courts uphold and enforce such awards. The issue is whether the arbitrator s decision to modify the punishment of an employee comes from the CBA. The court found that the CBA does prohibit the arbitrator from using his or her judgment for that of management, unless the arbitrator finds that management has acted arbitrarily or in violation of the Agreement. In this case, the arbitrator found that the company wrongly terminated the employee and violated the CBA s requirement of just cause. Given these circumstances, the court held that the collective bargaining contract provides that the arbitrator may substitute his or her judgment for that of management. Significantly, both the Supreme Court and Fourth Circuit are hesitant to find violations on public policy grounds the contractual commitments of parties to arbitrate their grievances. In particular, the Fourth Circuit agrees with those circuits that have concluded the general public policy against sexual harassment is 15

16 not sufficient to supplant labor arbitration of employee disciplinary sanctions. Additionally, striking an arbitral award would affect the values of discipline and industrial due process. For these reasons, the Fourth Circuit held that the arbitrator s decision was not void as against public policy. Communication Workers of America, AFL-CIO v. Bell Atlantic West Virginia, Inc., 27 F.Supp.2d 66, 159 L.R.R.M. 2903, 78 FEP Cases 630 (D.D.C. 1998) Bell Atlantic Network Services, Inc. terminated an employee for violation of the company s policy, which prohibits sexual harassment in the workplace. The Communication Worker of America filed a grievance on the employee s behalf and went through the grievance process without a resolution. The collective bargaining agreement between Bell Atlantic and the Union requires that such grievances be submitted for binding arbitration. The arbitrator decided in favor of the employee. However, the employer refused to reinstate the employee. The Union sought an injunction directing the employer to comply with the arbitration award. The district court granted the Union s motion for summary judgment. The court acknowledged that its circuit views arbitration awards as a valid product of collective bargaining. Most importantly, before the bargain can be set aside, the court must find that the arbitrator s decision either compels the violation of law or accepted public policy or dispenses the arbitrator s own brand of industrial justice rather than draw(ing) its essence from the collective bargaining agreement. Cole v. Burns Int l Security Serv., 105 F.3d 1465, 1474 (D.C.Cir.1997) (quoting United Steelworkers of American v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.ed.2d 1424 (1960)). The court held that the arbitrator s conclusion in this case flowed directly from the application of the collective bargaining agreement between the Plaintiff and the Defendant. In particular, the arbitrator reasonably relied upon relevant sources: sexual harassment case law and an inquiry into disparate treatment. The court also found that enforcing the arbitral award would not violate the public policy against sexual harassment. Most significantly, the court found unpersuasive the employer s counterclaim which charges that the company has the risk of litigation for any sexual harassment which occurs in its workplace in violation of Title VII. In response to this claim, the court emphasized the potential conflict that generally exists between an employer s industrial process and Title VII obligations. 16

17 UNION LIABILITY TITLE VII/ HOSTILE ENVIRONMENT Carter v. Chrysler Co., 173 F.3d 693, 79 FEP Cases 1253 (8 th Cir. 1999) Carter started working at Chrysler in 1976 and became a member of Local 110 of the United Auto Workers in In May 1992, she began working in a different shift in the engine pre-dress line in the chassis department. About a month after this transfer, Carter experienced abusive acts from a co-worker which continued for about two years. In particular, Carter complained that her co-worker made rude sexual gestures towards her, that sexual insults were written on the walls of the company restroom, and acts of vandalism occurred in her work area. She sued her employer and union claiming that she had been subjected to a hostile work environment and retaliation. The district court granted summary judgment in favor of both the Company and the Union. Carter complained to supervisors about the harassment after the first insult was made. Over a period of time, Carter complained to the Company s personnel manager and a series of supervisors. Carter also contacted the chair of the Union Civil Rights Committee in She was told that the chairperson did not have the time to speak with her. In March 1993, the Company contacted the chairperson who became involved at that time. After a series of meetings to discuss Carter s complaints in March 1993, the Union decided against filing a grievance on Carter s behalf. In December 1993, the Company fired two of the co-workers involved in Carter s complaint. The Union filed grievances for both men and both men returned to work a month later. Carter then filed her a charge of discrimination under Title VII of the Civil Rights Act of 1964 and Missouri Human Rights Act with the EEOC in August Carter filed again in February 1994, reasserting the original charges and adding the claim that she had been threatened with dismissal for her complaints. In addition, Carter filed a charge against the Union for sexual and racial discrimination. In particular, she claimed that the Union had 17

18 failed to pursue grievances on her behalf and had warned her against making further complaints. The Eighth Circuit affirmed the grant of summary judgment for the Union. While the court acknowledged that labor organizations have a duty to refrain from discrimination on the basis of race or sex and may be liable under Title VII if they cause or attempt to cause an employer to discriminate, the court found that the Union did not have a duty to provide a harassment-free work environment. Moreover, the court found that Union officials were involved in investigating Carter s claims and that Carter had not produced any evidence which showed that the Union was discriminatory in dealing with her or that the Union prevented the Company from fulfilling any obligations to her. Hence, the court ruled that Carter did not present a claim for breach of duty of fair representation and had failed to make a prima facie case of retaliation. On the other hand, the Eighth Circuit reversed the grant of summary judgment for the Company. The court disagreed with the district court s dismissal of Carter s hostile environment claims without analyzing the record on the issue of the adequacy of the Company s response to the complaints. The court found that the record needed a review of the sequence of complaints by Carter and the promptness and effectiveness of the Company s responses. Subsequently, the court remanded for further proceedings, regarding the material issues of fact on the question of the Company s actions. Bergeron v. Henderson, 185 F.R.D. 10 (D. Me. 1999) From 1984 until 1998, Bergeron worked as a postal letter carrier for the United States Postal Service. She filed a six-count complaint against the United States Postmaster, the Maine Merged Branch 92, the National Association of Letters Carriers ( Union ), and two workers from her former employment. In the first three counts, Bergeron claimed sexual harassment and discrimination in violation of Title VII. The other three counts alleged intentional infliction of emotional distress, negligent infliction of emotional distress and defamation. The Union moved to dismiss the Title VII claim and Bergeron filed a cross-motion to amend her complaint. Contrary to an earlier decision of the Eight Circuit, Jennings v. American Postal Workers Union, 672 F.2d 712 (1982), the district court held that the Union 18

19 was not a labor organization subject to Title VII. The court reasoned that the definition of employer in 42 U.S.C. 2000e-2(c) expressly excludes any corporation wholly owned by the United States. See 42 U.S.C. 2000e(b). Since the United States Postal service ( USPS ) is a corporation that is fully owned by the United States, USPS is not an employer and the Union cannot represent employees of an employer. Hence, unions that represent federal employees cannot be sued under Title VII. TITLE VII / SENIORITY SYSTEMS/DUTY OF FAIR REPRESENTATION Szarka v. Reynolds Metals Co., 17 F.Supp.2d 115, 159 L.R.R.M (N.D. N.Y. 1998) Szarka was employed as a cryolite operator for Reynolds Metals Company for about twenty years. She filed a claim against the Company and Union for sex harassment and discrimination in violation of Title VII. In particular, she charged that the Union failed to fairly represent her in the grievance procedure because of her age and sex. Szarka also claimed that she was treated unfairly in the Company s reduction procedure and subsequent recall of the reduced employees. The district court found that a sexual harassment claim was not presented to the EEOC as required before a Title VII action could be commenced and found that the Union was not liable. Moreover, the court rejected Szarka s argument that the Union s decision not to pursue her grievance to arbitration was a breach of the duty of fair representation. The court held instead that the Union handled Szarka s grievance in accordance with the CBA since the Union attempted to settle the grievance as required by the CBA. Furthermore, the court reasoned that Szarka presented no facts upon which a fair jury could conclude that the Union s conduct was arbitrary, discriminatory, or in bad faith. The court also noted that Szarka s reduction in rank and wage was due to the reduction in force carried out in conformity with the Collective Bargaining Agreement s seniority system. Furthermore, the court held that she failed to present evidence of retaliation on part of the Union in response to her filing of an EEOC claim and that the Labor Management Relations Act (LMRA) preempted her state law tort claim of negligent supervision on part of Union. For these 19

20 reasons mentioned, the court granted the Union s motion for summary judgment and denied Szarka s motion to amend her complaint. SEXUAL HARRASSMENT & UNION GRIEVANCE PROCUDURES Parkins v. Civil Constructors of Illinois, 163 F.3d 1027, 78 FEP Cases 1329 (7 th Cir. 1998) Parkins worked as a six-wheel dump-truck driver for Civil Constructors for over two years. She filed a grievance with her Union, Teamsters Local 325, complaining of hostile environment sexual harassment and retaliation. The Union contacted the president and EEO officer of the Company. The EEO officer started an investigation and the Company concluded that Parkins had been harassed, although she had instigated some of the conduct. Parkins also filed a charge of discrimination with the Illinois Department of Human Rights and EEOC. After Parkins filed suit in district court, the court granted summary judgment for the Company. Parkins complained that two of her harassers were supervisors and therefore strict liability should be imposed on the employer under Title VII. The Seventh Circuit found this claim insufficient and looked at the cases subsequent to the Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633, 66 U.S.L.W (U.S. 1998) and Faragher v. Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662, 66 U.S.L.W. 4643,. (U.S. 1998) decisions to determine the definition of a supervisor. The court determined that supervisory status is the authority to affect the terms and conditions of the victim s employment. Since there was no evidence that the two harassers in question had more than minimal authority and exercised little control over truck drivers, the court found that the Parkins harassers were low-level employees and not supervisors. The court stated that the Company s liability for the sexual harassment claim must be determined according to the standard for co-workers. The court also ruled that that the Company was not liable for a coemployee s harassment because the Company was not negligent either in 20

21 discovering or remedying the harassment. The court found that the Company promptly punished the harassers and threatened them with termination and that the two recipients of Parkins complaints did not have the authority to deal with the harassment. The court acknowledged that Parkins could have told her complaints to her Superintendent or the EEO officer at the Company. Hence, the court found Parkins failure to use other avenues for voicing her complaints to be unreasonable and held that the Company had no notice or knowledge of Parkins harassment until the complaints were made to the Union and transmitted to the EEO officer. The Seventh Circuit also rejected Parkins argument that the Company retaliated against her for reporting the harassment by not talking to her, laying her off of work and failing to recall her. The court reasoned that there is no evidence that the Company ordered any of its employees not to talk to Parkins and that material harm resulted to her. Furthermore, Parkins did not demonstrate a causal link between her complaints and the layoff and failure to recall to the court. In particular, the Company mentioned non-discriminatory reasons for its action, such as seasonal layoffs due to a lack of work. For the foregoing reasons, the Seventh Circuit affirmed the grant of summary judgment for the Company. 21

22 UNION AS EMPLOYER Vannoy v. Ocsea Local 11, 36 F.Supp.2d 1018 (S.D. Ohio 1999) Vannoy was employed as a staff worker for ten years with the OSCEA Local 11 of AFSCME AFL-CIO, a bargaining agent for public employees. She began her career as a Regional Director with the Union and was later reassigned to the newly created Membership Services Manager position when there was a reduction in the workforce. Vannoy suspected that her new position was a demotion. In addition, she stated that her supervisor inquired about her plans for retirement and that her executive director commented about forced retirement percentages. The Union issued Vannoy two written reprimands because of her failure to complete projects and her full forty-hour workweek. She subsequently retired at the age of sixty-two and filed a claim against the Union for age discrimination in violation of the ADEA. The district court rejected Vannoy s argument that she suffered adverse employment action based on her reassigned position. The court noted that there was no loss of pay or benefits in the reassignment and that Vannoy did not present evidence indicating that the Union based her reassignment on her age as opposed to corporate reorganization. Furthermore, the court rejected her claim of adverse employment action based on constructive discharge. The court reasoned that the Union s presentation of a long-term employment option, which Vannoy accepted, generally precluded a finding of constructive discharge. The court also found that the Union s comments about Vannoy s retirement and forced retirement percentages were isolated instances which did not rise to the level of harassment. In conclusion, the district court granted the Union s motion for summary judgment and ruled that Vannoy failed to establish a prima facie case of age discrimination. 22

23 UNION COUNSEL LIABILITY / STATUTE OF LIMITATIONS Waterman v. Transport Workers Union Local 100 No , 1999 WL (2 nd Cir. May 28, 1999) Waterman was fired from his bus driver position with the Manhattan and Bronx Surface Transit Operating Authority. The termination came after he allegedly tested positive for cocaine, after undergoing a drug test. The termination was upheld after an arbitration of a grievance filed by Waterman s Union, the Transport Workers Union Local 100. Waterman then filed suit against his Union and the attorney and law firm retained by the Union to represent him at the arbitration, claiming that the Union breached its duty to fairly represent him and that the attorneys committed malpractice. The district court found that claim against the Union was barred by res judicata or by the applicable statute of limitations. The district court also found that the Union s retained attorneys acted as agents of the Union in handling a grievance under the Union s collective bargaining agreement, and hence could not be sued for malpractice by an individual member under the rule applied in Atkinson v. Sinclair Refining Co., 370 U.S. 238, (1962). The Second Circuit found in favor of the Union and lawyers and dismissed Waterman s claim against them for breach of the duty of fair representation and malpractice. The court adopted part of the district court s opinion and held that Waterman s claims against the union are barred by the statute of limitations and that he may not sue the union s attorney s, who acted as agents of the union, for malpractice. 23