Federal Employment Discrimination Casesapps.americanbar.org/labor/lel-aba-annual/papers/1999/annual18.pdfThe federal employment discrimination cases selected for discussion in this

Federal Employment Discrimination Cases

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© American Bar Association http://www.bna.com/bnabooks/ababna/annual/99/annual18.pdf

The federal employment discrimination cases selected for discussion in this paperinvolve a labor union as a party or discuss issues under collective bargainingagreements or seniority systems. The cases summarized generally cover thetwelve-month period from June 1998 to June 1999.

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 ofO’Donoghue & O’Donoghue, respectively.


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TABLE OF CASES

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Aka v. Washington Hospital Center, 156 F.3d 1284, 159 L.R.R.M. 2467, 77 FEPCases 1840, 8 A.D. Cases 1093 (D.C. Cir. 1998)……………..………………………. 5

Aldrich v. Boeing Co., 146 F.3d 1265, 8 A.D. Cases 424 (10th Cir. 1998) ……………..…………………………….. 8

Barnett v. U.S. Air, Inc., 157 F.3d 744, 8 A.D. Cases 1073 (9th Cir.1998)……………………………………………………………………………………... 8

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)……………………………………………………………………………………... 12

Carter v. Chrysler Co., 173 F.3d 693, 79 FEP Cases 1253 (8th 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)……………………………………………………………………………………... 16

Craft v. Campbell Soup Co., 161 F.3d 1199, 78 FEP Cases 713 (9th Cir. 1998)……….. 13

Laurin v. Providence Hosp. , 150 F.3d 52, 158 L.R.R.M. 2977, 8 A.D. Cases 768(1stCir. 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 1699901(N.D. Iowa 1999)……………………………………………………………………….. 14

Parkins v. Civil Constructors of Illinois, 163 F.3d 1027, 78 FEP Cases 1329 (7th Cir.1998)……………………………………………………………………………………. 20

Szarka v. Reynolds Metals Co., 17 F.Supp.2d 115, 159 L.R.R.M. 3073 (N.D. N.Y.1998)……………………………………………………………………………………. 19

Thomas v. Runyon, 36 F.Supp.2d 1284 (D. Kan. 1999)………………………………. 9


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Vannoy v. Ocsea Local 11, 36 F.Supp.2d 1018 (S.D. Ohio 1999)……………………. 22

Waterman v. Transport Workers’ Union Local 100 1999 WL 357399(2nd Cir. 1999)…………………………………………………………………………… 23

Westvaco Corporation v. United Paperworkers Int’l Union, 171 F.3d 971, 160L.R.R.M. 2844, 79 FEP Cases 595 (4th Cir. 1999)…………………………………….. 15

Willis v. Pacific Maritime Ass’n, 162 F.3d 561, 160 L.R.R.M. 2053, 8 A.D.Cases 1632 (9th Cir. 1998)………………………………………………………………. 7

Wright v. Universal Maritime Service Corporation et al 119 S. Ct. 391, 159 L.R.R.M.2769 (1998)……………………………………………………………………………… 10


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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 chronicback pain, the loss of his right arm and hand, and difficulty moving his neck. Afterperforming one assignment as a longshoreman, Lujan took an employmentexamination to become a different class and more senior longshoreman. Themajority of the exam tested physical strength and agility.

After Lujan failed the exam, he filed an action against the Pacific MaritimeAssociation (“PMA”) and the International Longshoremen’s and Warehousemen’sUnion and two of its local unions, claiming violations under the ADA, California’sFair Employment and Housing Act, and state tort law for negligent infliction ofemotional distress. The district court granted summary judgment to theAssociation and the Union.

The Ninth Circuit reversed the grant of summary judgment. The court heldthat Lujan could argue that he was a qualifi ed individual with a disability under theADA, even though he made a statement during a social security disabilityproceedings that he was unable to work. The court also rejected the Association’sargument that Lujan was physically unquali fied for any longshore jobs. The courtreasoned that Lujan can perform some tasks and sought those assignments withoutviolation of the seniority system. Hence, he should not be denied the opportunityon the ground that his physical disability prevents him from performing some otherassignment which he does not want or is required to accept.

The court also held that Lujan is entitled under the ADA to anaccommodation for jobs for which he is qualified so long as the accommodationdoes not violate PMA’s and the Union’s bona fide seniority system. The courtfound that Lujan’s requests to register him as a Class B longshoreman and to credit

REASONABLE ACCOMODATION&

COLLECTIVE BARGAININGAGREEMENTS


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him with seniority at an accelerated rate would violate the seniority system.However, the court stated that Lujan’s request to turn down any physicallydemanding assignment without losing priority should be remanded forconsideration by the district court. Furthermore, the court affirmed the dismissalof 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. Cases1093 (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 turneddown and Aka sued the Hospital for age discrimination as well as the ADA forfailing to reasonably accommodate his disability by reassigning him to a vacantposition. The district court granted summary judgment to the hospital and AkaAppealed.

On the age claim, the Court of Appeals reversed the holding that Aka had notproduced sufficient evidence to suggest that the Hospital’s explanation for not hiringhim was pretext.

The court also held that that Aka’s reasonable accommodation claim underthe ADA should be remanded for further determination. The court rejected theHospital’s claim that Aka’s inability to perform his job even with reasonableaccommodation rendered him eligible for the reassignment. The court remanded thecase to the district court stating that it should determine whether the Hospital had anobligation under the ADA to reassign Aka to a vacant position. The district courtwas to also consider whether the Collective Bargaining Agreement permitted theHospital to reassign Aka to a vacant position without violating the CBA’s provisionon seniority and posting vacancies, and whether the ADA required such areassignment.


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Laurin v. Providence Hosp., 150 F.3d 52, 158 L.R.R.M. 2977, 8 A.D. Cases 768 (1st Cir. 1998)

Laurin was employed as a staff nurse for six years at Providence Hospitaland worked a rotating shift, which included one-third of her scheduled hours in theevening or night. After she had experienced a black out, Laurin was diagnosed bya neurologist with syncope or fainting. The neurologist recommended that shehave a regular schedule of work hours and Laurin requested that her immediatesupervisors give her a permanent reassignment to a days-only position. After hersupervisors failed to consider her request, Laurin contacted a representative fromthe Massachusetts Nurses Association (“MNA”), the union representing staffnurses at the Hospital. At a meeting with a MNA representative, Laurin wasinstructed that her supervisors would investigate the situation. Meanwhile, she wassent a letter stating that shift rotation was a part of the CBA between the Hospitaland the MNA. However, the Hospital did temporarily accommodate Laurin to adays-only schedule for six weeks.

Laurin’s condition deteriorated and she was subsequently diagnosed with aseizure disorder. Her neurologist reported that daytime hours were necessary, butthe 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 assistin presenting her grievance to arbitration. Instead, the MNA informed her aboutthe right to pursue a grievance. Laurin filed a grievance which was denied by theHospital following a hearing. She was later terminated after failing to appear forwork. 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 shiftsdid not violate the ADA and did not constitute a breach of the CollectiveBargaining 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 notedthat an employer does not need to accommodate a disability by foregoing “anessential function” of the employment position and that shift-rotation was such anessential function as required by the Hospital. Moreover, the court stated thatLaurin failed to produce evidence that the Hospital had discriminatory intent inmaintaining that shift-rotation was an “essential job function.”

The court also held that Laurin failed to produce evidence that the Hospitalbreached the CBA, thereby violating National Labor Relations Act § 301. Inparticular, Laurin did not show that the reason for her discharge was pretextual or


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that her requested accommodation was denied because of discriminatory intent.Hence, the court stated that the Massachusetts Nurses Association (MNA) had noduty 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 (9th Cir. 1998)

Willis worked as a Class A longshore worker for Pacific MaritimeAssociation and is a member of the International Longshore and Warehouse Union(“ILWU”). After receiving various injuries to his back and neck, he requestedplacement on the Dock Preference Board which receives priority for light dutywork. He also requested a transfer to Local 34 which represents marine clerks.After both requests were denied due to his lack of seniority, Willis fileddiscrimination charges with the EEOC and California Department of FairEmployment and Housing (“DFEH”). He alleged that the employers’ associationand union violated the ADA by failing to provide him with light duty work. Thedistrict court granted summary judgment to the Association.

In affirming the District Court, the Ninth Circuit held that an employee’sproposed accommodation under the ADA is unreasonable if it conflicts with abona fide seniority system established under the CBA. The court noted itsagreement with those circuits that adopted this rule. Since light duty workpositions and transfers to Local 34 are based on seniority, Willis’ accommodationrequest 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 notprovide any evidence which showed that the Association and union deviated fromthe seniority system to show that the proposed accommodations wereunreasonable.


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Barnett v. U.S. Air, Inc., 157 F.3d 744, 8 A.D. Cases 1073 (9th Cir. 1998)

Barnett was employed as a customer service agent for U.S. Air. Afterinjuring his back, he took a leave of absence and then transferred to a swing-shiftposition in the mailroom. After the mailroom position became open for biddingfrom employees with seniority, Barnett learned that he would have to work in thecargo 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 theADA. The district court granted summary judgment to the Company.

The Ninth Circuit held that making an exception for Barnett within theemployee’s seniority system was not a reasonable accommodation. The courtnoted that seniority systems are common within the airline industry and that theCompany’s seniority policy does not have an exception which could encompassdisabled employees. The court also found that the Company did not have topurchase special lifting equipment for Barnett. The court reasoned that Barnett didnot show that the special lifting equipment would provide him with anyaccommodation of his disability not already provided by the forklifts furnished incargo.

The court also held that Barnett’s request to modify the shift requirements ofthe cargo position was not a reasonable accommodation. Reasonableaccommodations do not require that an employer eliminate or reassign essential jobfunctions. Furthermore, the court held that the ADA and its regulations do notcreate independent liability for the Company for failing to engage in discussionswith Barnett to find a reasonable accommodation. Moreover, the court found thatthe Company did not retaliate against Barnett because the Company offered somelegitimate, nondiscriminatory reasons for the adverse employment decision.

Aldrich v. Boeing Co., 146 F.3d 1265, 8 A.D. Cases 424 (10th Cir. 1998)

Aldrich was employed as an assembly worker for Boeing when heexperienced pain in his right hand. An orthopedic surgeon determined that Aldrichwas unable to return to work and provided him with a signed medical leave ofabsence form. Upon returning to work, Aldrich was informed that he could notperform his duties. He was placed on medical leave and received permanent and


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total disability benefits under the Company’s disability plan. He filed an actionagainst the Company, claiming a violation of the ADA.

The Tenth Circuit held that Aldrich could bring his ADA claim, even thoughhe applied for and received benefits under the Company’s plan. The court pointedto its decision in Rascon v. U.S. West Communications, 143 F.3d 1324 (10th Cir.1998), where it held that the application for, or receipt of, social security disabilitybenefits does not prevent the plaintiff from pursuing a claim under the ADA. Thecourt also found that some factual questions as to reasonable accommodationsexisted, which precluded summary judgment. Some of the positions Aldrichclaimed were reasonable accommodations were rejected by the court becausetransferring him into those positions would have violated the seniority provisionsof the CBA. The court found that the ADA does not require accommodations thatconflict 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 Servicefrom 1987 to 1996. In 1993, Plaintiff told his employer that he objected toworking on Saturdays because of his religious beliefs as a member of the Churchof God. Thomas requested that the Union approve the arrangement where he couldavoid working on a Saturday. The Union, however, did not approve thearrangement. After using his annual leave and finding voluntary replacement,Thomas refused to work on Saturdays and went “AWOL” at times. He wasdisciplined and ultimately terminated in 1996. Thomas then filed suit against hisemployer claiming religious discrimination in violation of Title VII. The districtcourt granted the motion for summary judgment in favor of the Employer.

The district court ruled that excusing Thomas from Saturday work wouldhave violated the terms of the Employer’s collective bargaining agreement with theUnion, which required the local union to regulate days off pursuant to the LocalMemorandum of Understanding (LMOU). Moreover, the LMOU placed Thomas,like all residential letter carriers, on a rotating work schedule that required him towork five Saturdays out of six. The court noted that the Employer’s managementdid not have the authority to change the work schedule because it would violate the


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LMOU. Hence, the court found that the Employer’s failure to excuse Thomasfrom working on Saturdays did not constitute religious discrimination in violationof Title VII.

The district court also ruled that the Employer’s failure to find anotherposition for Thomas did not constitute religious discrimination. The court foundthat the Employer’s willingness to consider an alternative arrangement forSaturday work and its request of the Union to waive the Saturday workrequirement for Thomas showed steps consistent with the Employer’s duty toattempt a reasonable accommodation of an employee’s religious beliefs. Inaddition, the court acknowledged that the Employer’s recommendation thatThomas bid for another position, which he rejected. Beyond these steps, the courtstated that the accommodations sought by Thomas would have violated thecollective bargaining agreement with the Union.

Wright v. Universal Maritime Service Corporation et. al 119 S. Ct. 391, 159 L.R.R.M. 2769 (1998)

Wright was a longshoremen working for various Stevedore companies inCharleston, South Carolina and was a member of Local 1422 of the InternationalLongshoremen’s Association, AFL-CIO (“Union”). The companies wererepresented by the South Carolina Stevedores Association (SCSA) which had aCBA with the Union. The CBA provided that “matters under dispute” and “allmatters affecting wages, hours, and other terms and conditions of employment” areto be resolved through a grievance procedure up to and including arbitration, ifnecessary. The CBA also stated that it was the intention of the parties that no partof the CBA violate federal or state law.

The Longshore Seniority Plan, to which Wright was a member, alsocommitted “any dispute concerning or arising out of the terms and/or conditions ofthis Agreement, or dispute involving the interpretation of application of thisAgreement…” to a grievance procedure.

ARBITRATION OF STATUTORY CLAIMS


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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 andwas also awarded social security disability benefits.

In January 1995, Wright returned to work with a medical clearance andreported to work for four stevedore companies. The fifth company, however,discovered that Wright had settled a permanent disability claim and refused toemploy him. Once the Union’s contentions that the employer misinterpreted theCBA and violated the ADA by refusing Wright based on his disability had provenunsuccessful, the Union suggested to Wright that he file a charge of discriminationagainst the SCSA.

Wright, therefore, sued the SCSA and its six stevedoring companiesindividually for violating the ADA. The district court, later affirmed by the FourthCircuit, dismissed Wright’s claims because he failed to exhaust his administrativeremedies—the grievance procedure in the CBA.

The Fourth Circuit found that the CBA’s grievance and arbitration provisionwas sufficiently broad to cover Wright’s ADA claim. Wright appealed to theSupreme Court.

The Supreme Court began its analysis by recognizing the tension betweentwo 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 anADEA claim could be waived. The Court resolved the tension by explaining thatGilmer involved an individual’s waiver of his own rights not a union waiver; andthat Gardner-Denver “at least stands for the proposition that the right to a federaljudicial forum is of sufficient importance to be protected against less-than-explicitunion waiver in a CBA.”

The Court found that the presumption of arbitrability is only appropriatelyapplied to issues involving the interpretation of the terms of the CBA and does notapply when the issue involves the meaning of federal employment discriminationstatutes. 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, itmust be explicitly stated in the CBA evidencing a “clear and unmistakablewaiver.”


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Lastly, the Court observed that the CBA lacked an explicit incorporation ofstatutory antidiscrimination requirements and that its clause memorializing theparties’ intent not to violate federal laws failed to subject the employers to thecontractual commitment to comply with the ADA.

Notably, the Court declined to decide whether a union-negotiated clear andunmistakable 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 disabilitydiscrimination in violation of Title VII, the ADEA, and the ADA.

Giant Food asserted that since the employees were represented by fourseparate unions, their claims were subject to the grievance and arbitrationprovisions of the four CBAs. The CBA’s provided for the arbitration of “anygrievance or dispute aris[ing] between the parties regarding the terms of thisagreement” and any “controversy, dispute or disagreement . . . concerning theinterpretation of the provisions of this agreement.” The CBAs also containedgeneral antidiscrimination clauses where the union and employer “agree not todiscriminate 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 theCBAs require the arbitration of statutory discrimination claims? Since courts donot presume that the parties agreed to arbitrate arbitrability, they will presume thatthe judiciary decides arbitrability, unless the CBA contains a clear andunmistakable provision to that effect. Thus, the court found that “broad arbitrationclauses that generally commit all interpretive disputes ‘relating to’ or ‘arising outof’ the agreement do not satisfy the clear and unmistakable test. The court went onto suggest that parties who wish to allow the arbitrator to decide if issues arearbitrable “need only state that ‘all disputes concerning arbitrability of particulardisputes under this contract are hereby committed to arbitration,’ or words to thatclear effect.”

The second question the court decided was whether the parties agreed toarbitrate statutory discrimination claims. The court pointed out that although


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unions through CBAs can require employee members to follow a grievanceprocedure for their discrimination claims prior to filing suit in federal court, theCBAs must clearly and unmistakably require the arbitration of these claims asrequired by Wright.

The court stated that the Wright decision provided two avenues to meet theclear and unmistakable requirement. One method involves a clear provision wherethe parties explicitly agree to submit federal discrimination claims to arbitrationthat goes beyond the general language contained in Giant’s agreements. The otheroption is to craft a provision, similar to a nondiscrimination clause, whichunmistakably incorporates the discrimination statues as part of the agreement.

The court ultimately found that the general antidiscrimination clause and thearbitration provision failed to meet these standards.

Craft v. Campbell Soup Co., 161 F.3d 1199, 78 FEP Cases 713 (9th Cir. 1998)

Craft was employed by Campbell Soup Company and a member of the FoodProcess Workers and Warehousemen and Helpers Local Union 228 (“Union”). Hefiled a grievance against the Company alleging racial discrimination, harassment,health and safety concerns, and additional claims. The CBA between CampbellSoup and the Union provided that “disputes under this provision shall be subject tothe grievance and arbitration procedure provided in the CBA.” After the grievancewas not resolved, the Union referred the matter to arbitration. While the grievancewas pending, Craft filed in district court claims for race discrimination andretaliation in violation of Title VII of the Civil Rights Act of 1964, and state lawclaims for assault and emotional distress. The district court granted summaryjudgment 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 thereforedismissed the Company’s appeal. The court noted that the Court of Appeals hasjurisdiction only if the Federal Arbitration Act (“FAA”) applies. Moreover, thecourt stated that jurisdiction depends upon the proper interpretation of the FAA inrelation to employment contracts which is a question of first impression in theNinth Circuit. The court reasoned that Section 2 of the FAA, the pre-New dealunderstanding of the Commerce Clause, and the legislative history of the FAAsuggest that the FAA does not apply to labor or employment contracts. The court


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also looked at Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 40 LRRM2113 (1957), Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 55 FEP Cases1116 (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. TheNinth Circuit, therefore, has no jurisdiction over the Company’s appeal.

Ozolins v. Northwood-Kensett Community School District No. C97-3097-PAZ, 1999 WL 169901 (N.D. Iowa March 17, 1999)

Ozolins was a music teacher with the Northwood-Kensett CommunitySchool District for 11 years. After being denied FMLA leave to care for her ailing79 year old mother, she filed a complaint against the School District. In addition todeciding whether Ozolins was entitled to FMLA leave, the court decided whethershe should have followed the grievance procedure contained in Northwood-KensettEducation Association, the local union, and the school district’s CBA.

The CBA incorporated by reference the provisions of the FMLA with thequalification 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 afour step grievance procedure ending in impartial binding arbitration. CitingWright the court found that even if the CBA incorporated the statute, the arbitratorwould 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 incorporatingthe FMLA with a qualification, the CBA was not clear about whether the partiesagreed to arbitrate FMLA claims.

The court also noted that Ozolins was not a member of the Union at theinitial stages of the dispute and that the union, therefore, refused to submit agrievance over the matter. If Ozolins were required to utilize the grievanceprocedure, the court reasoned that she would have no avenue of recourse becausethe union would not have been empowered under the CBA to engage in theprocedure on her behalf.

Thus, the court found that Ozolins was not required to arbitrate her FMLAclaim.


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Westvaco Corporation v. United Paperworkers Int’l Union, 171 F.3d 971, 160 L.R.R.M. 2844, 79 FEP Cases 595 (4th Cir. 1999)

Westvaco Corporation fired an employee for sexually harassing a co-worker.The employee challenged his discharge under the collective bargaining agreementbetween Westvaco and the United Paperworkers International Union. Thearbitrator found that while the employee’s actions did violate the Company’ssexual harassment policy, the Company’s actions were also at fault. In particular,Company officials did not permit the employee to enter its Employee AssistanceProgram and the officials also did not instruct the employee to refrain from hisconduct, even though they had knowledge of the behavior. The arbitrator orderedthe reinstatement of the employee without back wages. The Company filed suitchallenging the arbitral decision under section 301 of the Labor ManagementRelations Act, 29 U.S.C. § 185. In particular, the Company claimed that thearbitrator exceeded the scope of his authority and that reinstatement contravenedpublic 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 awardsthreatens the efficacy and finality of arbitration. Therefore, most courts upholdand enforce such awards. The issue is whether the arbitrator’s decision to modifythe punishment of an employee comes from the CBA. The court found that theCBA does prohibit the arbitrator from using his or her judgment for that ofmanagement, unless the arbitrator finds that management has acted arbitraril y or inviolation of the Agreement. In this case, the arbitrator found that the companywrongly terminated the employee and violated the CBA’s requirement of “ justcause.” Given these circumstances, the court held that the collective bargainingcontract provides that the arbitrator may substitute his or her judgment for that ofmanagement.

Significantly, both the Supreme Court and Fourth Circuit are hesitant to findviolations on public policy grounds the contractual commitments of parties toarbitrate their grievances. In particular, the Fourth Circuit agrees with thosecircuits that have concluded the general public policy against sexual harassment is

STRIKING ARBITRATION AWARDSON PUBLIC POLICY GROUNDS


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not sufficient to supplant labor arbitration of employee disciplinary sanctions.Additionally, striking an arbitral award would affect the values of discipline andindustrial due process. For these reasons, the Fourth Circuit held that thearbitrator’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 ofthe company’s policy, which prohibits sexual harassment in the workplace. TheCommunication Worker of America filed a grievance on the employee’s behalfand went through the grievance process without a resolution. The collectivebargaining agreement between Bell Atlantic and the Union requires that suchgrievances be submitted for binding arbitration. The arbitrator decided in favor ofthe employee. However, the employer refused to reinstate the employee. TheUnion sought an injunction directing the employer to comply with the arbitrationaward. The district court granted the Union’s motion for summary judgment.

The court acknowledged that its circuit views arbitration awards as a validproduct of collective bargaining. Most importantly, before the bargain can be setaside, the court must find that the arbitrator’s decision either compels the violationof law or accepted public policy or dispenses the arbitrator’s “own brand ofindustrial justice” rather than “draw(ing) its essence from the collective bargainingagreement.” 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 directlyfrom the application of the collective bargaining agreement between the Plaintiffand the Defendant. In particular, the arbitrator reasonably relied upon relevantsources: sexual harassment case law and an inquiry into disparate treatment. Thecourt also found that enforcing the arbitral award would not violate the publicpolicy against sexual harassment. Most significantly, the court found unpersuasivethe employer’s counterclaim which charges that the company has the risk oflitigation for any sexual harassment which occurs in its workplace in violation ofTitle VII. In response to this claim, the court emphasized the potential conflict thatgenerally exists between an employer’s industrial process and Title VIIobligations.


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TITLE VII/HOSTILE ENVIRONMENT

Carter v. Chrysler Co., 173 F.3d 693, 79 FEP Cases 1253 (8th Cir. 1999)

Carter started working at Chrysler in 1976 and became a member of Local110 of the United Auto Workers in 1986. In May 1992, she began working in adifferent shift in the engine pre-dress line in the chassis department. About amonth after this transfer, Carter experienced abusive acts from a co-worker whichcontinued for about two years. In particular, Carter complained that her co-workermade rude sexual gestures towards her, that sexual insults were written on thewalls 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 hostilework environment and retaliation. The district court granted summary judgment infavor of both the Company and the Union.

Carter complained to supervisors about the harassment after the first insultwas made. Over a period of time, Carter complained to the Company’s personnelmanager and a series of supervisors. Carter also contacted the chair of the UnionCivil Rights Committee in 1992. She was told that the chairperson did not havethe time to speak with her. In March 1993, the Company contacted the chairpersonwho became involved at that time. After a series of meetings to discuss Carter’scomplaints in March 1993, the Union decided against filing a grievance on Carter’sbehalf.

In December 1993, the Company fired two of the co-workers involved inCarter’s complaint. The Union filed grievances for both men and both menreturned to work a month later. Carter then filed her a charge of discriminationunder Title VII of the Civil Rights Act of 1964 and Missouri Human Rights Actwith the EEOC in August 1993. Carter filed again in February 1994, reassertingthe original charges and adding the claim that she had been threatened withdismissal for her complaints. In addition, Carter filed a charge against the Unionfor sexual and racial discrimination. In particular, she claimed that the Union had

UNION LIABILITY


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failed to pursue grievances on her behalf and had warned her against makingfurther 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 fromdiscrimination on the basis of race or sex and may be liable under Title VII if theycause or attempt to cause an employer to discriminate, the court found that theUnion did not have a duty to provide a harassment-free work environment.Moreover, the court found that Union officials were involved in investigatingCarter’s claims and that Carter had not produced any evidence which showed thatthe Union was discriminatory in dealing with her or that the Union prevented theCompany from fulfilling any obligations to her. Hence, the court ruled that Carterdid not present a claim for breach of duty of fair representation and had failed tomake a prima facie case of retaliation.

On the other hand, the Eighth Circuit reversed the grant of summaryjudgment for the Company. The court disagreed with the district court’s dismissalof Carter’s hostile environment claims without analyzing the record on the issue ofthe adequacy of the Company’s response to the complaints. The court found thatthe record needed a review of the sequence of complaints by Carter and thepromptness and effectiveness of the Company’s responses. Subsequently, thecourt remanded for further proceedings, regarding the material issues of fact on thequestion 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 theUnited States Postal Service. She filed a six-count complaint against the UnitedStates Postmaster, the Maine Merged Branch 92, the National Association ofLetters Carriers (“Union”), and two workers from her former employment. In thefirst three counts, Bergeron claimed sexual harassment and discrimination inviolation of Title VII. The other three counts alleged intentional infliction ofemotional distress, negligent infliction of emotional distress and defamation. TheUnion moved to dismiss the Title VII claim and Bergeron filed a cross-motion toamend her complaint.

Contrary to an earlier decision of the Eight Circuit, Jennings v. AmericanPostal Workers Union, 672 F.2d 712 (1982), the district court held that the Union


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was not a “labor organization” subject to Title VII. The court reasoned that thedefinition 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). Sincethe United States Postal service (“USPS”) is a corporation that is fully owned bythe United States, USPS is not an “employer” and the Union cannot representemployees of an “employer.” Hence, unions that represent federal employeescannot 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. 3073 (N.D. N.Y. 1998)

Szarka was employed as a cryolite operator for Reynolds Metals Companyfor about twenty years. She filed a claim against the Company and Union for sexharassment and discrimination in violation of Title VII. In particular, she chargedthat the Union failed to fairly represent her in the grievance procedure because ofher age and sex. Szarka also claimed that she was treated unfairly in theCompany’s reduction procedure and subsequent recall of the reduced employees.

The district court found that a sexual harassment claim was not presented tothe EEOC as required before a Title VII action could be commenced and foundthat the Union was not liable. Moreover, the court rejected Szarka’s argument thatthe Union’s decision not to pursue her grievance to arbitration was a breach of theduty of fair representation. The court held instead that the Union handled Szarka’sgrievance in accordance with the CBA since the Union attempted to settle thegrievance as required by the CBA. Furthermore, the court reasoned that Szarkapresented no facts upon which a fair jury could conclude that the Union’s conductwas arbitrary, discriminatory, or in bad faith.

The court also noted that Szarka’s reduction in rank and wage was due to thereduction in force carried out in conformity with the Collective BargainingAgreement’s seniority system. Furthermore, the court held that she failed topresent evidence of retaliation on part of the Union in response to her filing of anEEOC claim and that the Labor Management Relations Act (LMRA) preemptedher state law tort claim of negligent supervision on part of Union. For these


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reasons mentioned, the court granted the Union’s motion for summary judgmentand denied Szarka’s motion to amend her complaint.

Parkins v. Civil Constructors of Illinois, 163 F.3d 1027, 78 FEP Cases 1329 (7th Cir. 1998)

Parkins worked as a six-wheel dump-truck driver for Civil Constructors forover two years. She filed a grievance with her Union, Teamsters Local 325,complaining of hostile environment sexual harassment and retaliation. The Unioncontacted the president and EEO officer of the Company. The EEO officer startedan investigation and the Company concluded that Parkins had been harassed,although she had instigated some of the conduct. Parkins also filed a charge ofdiscrimination with the Illinois Department of Human Rights and EEOC. AfterParkins filed suit in district court, the court granted summary judgment for theCompany.

Parkins complained that two of her harassers were supervisors and thereforestrict liability should be imposed on the employer under Title VII. The SeventhCircuit found this claim insufficient and looked at the cases subsequent to theBurlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633,66 U.S.L.W. 4634 (U.S. 1998) and Faragher v. Boca Raton, 524 U.S. 775, 118S.Ct. 2275, 141 L.Ed.2d 662, 66 U.S.L.W. 4643,. (U.S. 1998) decisions todetermine the definition of a supervisor. The court determined that supervisorystatus is the authority to affect the terms and conditions of the victim’semployment. Since there was no evidence that the two harassers in question hadmore than minimal authority and exercised little control over truck drivers, thecourt found that the Parkins’ harassers were low-level employees and notsupervisors. The court stated that the Company’s liability for the sexualharassment claim must be determined according to the standard for co-workers.

The court also ruled that that the Company was not liable for a co-employee’s harassment because the Company was not negligent either in

SEXUAL HARRASSMENT&

UNION GRIEVANCE PROCUDURES


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discovering or remedying the harassment. The court found that the Companypromptly punished the harassers and threatened them with termination and that thetwo recipients of Parkins’ complaints did not have the authority to deal with theharassment. The court acknowledged that Parkins could have told her complaintsto her Superintendent or the EEO officer at the Company. Hence, the court foundParkins’ failure to use other avenues for voicing her complaints to be unreasonableand held that the Company had no notice or knowledge of Parkins’ harassmentuntil the complaints were made to the Union and transmitted to the EEO officer.

The Seventh Circuit also rejected Parkins’ argument that the Companyretaliated against her for reporting the harassment by not talking to her, laying heroff of work and failing to recall her. The court reasoned that there is no evidencethat the Company ordered any of its employees not to talk to Parkins and thatmaterial harm resulted to her. Furthermore, Parkins did not demonstrate a causallink between her complaints and the layoff and failure to recall to the court. Inparticular, the Company mentioned non-discriminatory reasons for its action, suchas seasonal layoffs due to a lack of work. For the foregoing reasons, the SeventhCircuit affirmed the grant of summary judgment for the Company.


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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 Local11 of AFSCME AFL-CIO, a bargaining agent for public employees. She beganher career as a Regional Director with the Union and was later reassigned to thenewly created Membership Services Manager position when there was a reductionin the workforce. Vannoy suspected that her new position was a demotion. Inaddition, she stated that her supervisor inquired about her plans for retirement andthat her executive director commented about forced retirement percentages. TheUnion issued Vannoy two written reprimands because of her failure to completeprojects and her full forty-hour workweek. She subsequently retired at the age ofsixty-two and filed a claim against the Union for age discrimination in violation ofthe ADEA.

The district court rejected Vannoy’s argument that she suffered adverseemployment action based on her reassigned position. The court noted that therewas no loss of pay or benefits in the reassignment and that Vannoy did not presentevidence indicating that the Union based her reassignment on her age as opposedto corporate reorganization. Furthermore, the court rejected her claim of adverseemployment action based on constructive discharge. The court reasoned that theUnion’s presentation of a long-term employment option, which Vannoy accepted,generally precluded a finding of constructive discharge. The court also found thatthe Union’s comments about Vannoy’s retirement and forced retirementpercentages were isolated instances which did not rise to the level of harassment.In conclusion, the district court granted the Union’s motion for summary judgmentand ruled that Vannoy failed to establish a prima facie case of age discrimination.

UNION AS EMPLOYER


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Waterman v. Transport Workers’ Union Local 100No. 98-7986, 1999 WL 357399 (2nd Cir. May 28, 1999)

Waterman was fired from his bus driver position with the Manhattan andBronx Surface Transit Operating Authority. The termination came after heallegedly tested positive for cocaine, after undergoing a drug test. The terminationwas upheld after an arbitration of a grievance filed by Waterman’s Union, theTransport Workers’ Union Local 100. Waterman then filed suit against his Unionand the attorney and law firm retained by the Union to represent him at thearbitration, claiming that the Union breached its duty to fairly represent him andthat the attorneys committed malpractice. The district court found that claimagainst the Union was barred by res judicata or by the applicable statute oflimitations. The district court also found that the Union’s retained attorneys actedas agents of the Union in handling a grievance under the Union’s collectivebargaining agreement, and hence could not be sued for malpractice by anindividual member under the rule applied in Atkinson v. Sinclair Refining Co., 370U.S. 238, 246-48 (1962).

The Second Circuit found in favor of the Union and lawyers and dismissedWaterman’s claim against them for breach of the duty of fair representation andmalpractice. The court adopted part of the district court’s opinion and held thatWaterman’s claims against the union are barred by the statute of limitations andthat he may not sue the union’s attorney’s, who acted as agents of the union, formalpractice.

UNION COUNSEL LIABILITY /STATUTE OF LIMITATIONS

Federal Employment Discrimination Casesapps.americanbar.org/labor/lel-aba-annual/papers/1999/annual18.pdfThe federal employment discrimination cases selected for discussion in this

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