Watford v. Jefferson County Public Schools

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 17a0203p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JOYCE WATFORD, ┐

Plaintiff-Appellant, │

│

> No. 16-6183

v. │

│

│

JEFFERSON COUNTY PUBLIC SCHOOLS, │

Defendant, │

│

JEFFERSON COUNTY BOARD OF EDUCATION; JEFFERSON │

COUNTY TEACHERS ASSOCIATION, │

│

Defendants-Appellees.

┘

Appeal from the United States District Court for

the Western District of Kentucky at Louisville.

No. 3:13-cv-00425—Thomas B. Russell, District Judge.

Argued: March 9, 2017

Decided and Filed: September 1, 2017

Before: DAUGHTREY, MOORE, and GIBBONS, Circuit Judges.

_________________

COUNSEL

ARGUED: Andrew Dutkanych III, BIESECKER, DUTKANYCH & MACER, LLC,

Louisville, Kentucky, for Appellant. C. Tyson Gorman, WYATT, TARRANT & COMBS, LLP,

Louisville, Kentucky, for Appellee Board of Education. Benjamin S. Basil, PRIDDY, CUTLER,

NAAKE & MEADE, PLLC, Louisville, Kentucky, for Appellee Teachers Association. Gail S.

Coleman, UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Washington, D.C., for Amicus Curiae. ON BRIEF: Andrew Dutkanych III, Krista A. Willike,

BIESECKER, DUTKANYCH & MACER, LLC, Louisville, Kentucky, for Appellant. C. Tyson

Gorman, Amanda Warford Edge, WYATT, TARRANT & COMBS, LLP, Louisville, Kentucky,

for Appellee Board of Education. Benjamin S. Basil, Don Meade, PRIDDY, CUTLER, NAAKE

& MEADE, PLLC, Louisville, Kentucky, for Appellee Teachers Association. Gail S. Coleman,

No. 16-6183 Watford v. Jefferson Cty. Pub. Sch. et al. Page 2

UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington,

D.C., for Amicus Curiae.

MOORE, J., delivered the opinion of the court in which DAUGHTREY, J., joined.

GIBBONS, J. (pp. 11–15), delivered a separate dissenting opinion.

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OPINION

_________________

KAREN NELSON MOORE, Circuit Judge. At issue in this employment-discrimination

case is a collective bargaining agreement (“CBA”) negotiated and signed by Defendants-

Appellees Jefferson County Board of Education (“JCBE”) and Jefferson County Teachers

Association (“JCTA”). Under the CBA, if an employee believed that they were discriminated

against, that employee could file a grievance with JCBE. However, if the employee

subsequently filed a charge with the Equal Employment Opportunity Commission (“EEOC”), the

CBA required that the grievance proceedings be held in abeyance. Such was the case here.

Watford filed a grievance on the day she was terminated—October 13, 2010—and those

proceedings are still in abeyance. Frustrated that her grievance proceedings were held in

abeyance simply because she filed an EEOC charge, Watford brought this case, alleging that

JCBE and JCTA retaliated against her for filing an EEOC charge. The district court awarded

summary judgment against Watford, an award that is inconsistent with this court’s admonition

that “an adverse action against [an] employee because the employee had pursued the statutorily

protected activity of filing a charge with the EEOC” is “clearly” retaliation. See EEOC v.

SunDance Rehabilitation Corp., 466 F.3d 490, 498 (6th Cir. 2006). Because of this

inconsistency, and because the CBA is retaliatory on its face, we REVERSE the district court’s

judgment and REMAND for further proceedings consistent with this opinion.

I. BACKGROUND

Watford’s eleven-year teaching career with Jefferson County Public Schools (“JCPS”)

came to an end when JCPS terminated her on October 13, 2010. R. 40-4 (Termination Letter at

4) (Page ID #883). In Watford’s termination letter, the JCPS superintendent claimed that her

final two years were marked by “insubordination and conduct unbecoming a teacher.” Id.

No. 16-6183 Watford v. Jefferson Cty. Pub. Sch. et al. Page 3

Believing that her termination was instead due to discrimination on the basis of race, sex, and

age, Watford filed a grievance with Defendant-Appellee Jefferson County Board of Education

(“JCBE”) on the very day she was terminated. R. 44-7 (Watford Grievance No. T11-017-09-06)

(Page ID #1171). So began Watford’s case.

A. The Collective Bargaining Agreement

At the heart of this dispute is the CBA between JCBE and JCTA. The CBA, which

stipulates to teachers’ rights—from academic freedom to school safety—contains grievance

procedures in the event “that there has been a violation, misinterpretation or improper application

of one or more specific provisions of this Agreement or any complaint alleging improper,

arbitrary, or discriminatory conduct.” R. 36-4 (CBA art. 29, § A.1) (Page ID #400). Grievances

begin with informing the teacher’s “immediate supervisor or the appropriate administrator” and

may be appealed up the hierarchy to the superintendent. See id. art. 29, § D (Page ID #402). If

the teacher is still unsatisfied with the superintendent’s decision, the JCTA may submit the

grievance to arbitration. Id. (Page ID #403). Throughout, the grievance process is intended to

proceed “as rapidly as possible,” with time limits set at each stage (which, naturally, may “be

extended by mutual agreement”). See id. (Page ID #401–04).

The CBA also places limits on potential grievants’ choice of remedies. Kentucky has a

dispute resolution process for teachers called an “administrative hearing tribunal,” see Ky. Rev.

Stat. Ann. § 161.790 (West 2006), and teachers covered by the CBA must select either the

tribunal process or the grievance process; they cannot pursue both. See R. 36-4 (CBA art. 9,

§ D) (Page ID #326). In addition, and centrally to this case, “[i]f the employee opts to pursue a

complaint using another agency, the parties agree to hold the grievance in abeyance until the

agency complaint is resolved.” See id. Finally, the CBA stipulates that “[t]he Association and

the aggrieved party will be required to exhaust this Grievance Procedure including arbitration

before seeking alternative remedies, provided that by doing so they will not be deemed to have

waived or otherwise prejudiced any constitutional, statutory, or other legal rights that they may

have.” Id. art. 29, § I.3 (Page ID #405).

No. 16-6183 Watford v. Jefferson Cty. Pub. Sch. et al. Page 4

B. Watford’s Discrimination and Retaliation Allegations

As alluded to earlier, Watford has thoroughly availed herself of grievance procedures and

EEOC charges. After the JCPS superintendent dismissed Watford’s aforementioned grievance,

see R. 44-7 (Superintendent Decision Grievance No. T-11-017-09-06) (Page ID #1172), Watford

sought to have the grievance arbitrated along with six other grievances she had filed before she

was terminated. R. 36-5 (Feb. 11, 2011 E-mail from Bethel to Partee) (Page ID #428–29).

Although the parties tentatively scheduled an arbitration to begin in July 2011, id., an EEOC

charge that Watford filed against JCPS1 on February 24, 2011, R. 34-3 (Charge No. 474-2011-

00452) (Page ID #151), caused the arbitration to be held in abeyance. R. 37-7 (Feb. 25, 2011

Letter from Meredith to Flaherty) (Page ID #610).

Disappointed that the arbitration would not proceed as scheduled, Watford filed another

EEOC charge, this time alleging that the arbitration was held in abeyance in retaliation for filing

an EEOC charge. R. 37-8 (Charge No. 24J-2011-00066) (Page ID #612). A little over one year

later, the EEOC issued a determination that there was “reasonable cause to believe that the

[JCPS] held [Watford’s] grievance proceedings in abeyance in retaliation for her filing a charge

of discrimination with the [EEOC].” R. 34-6 (Determination for Charge No. 24J-2011-00066)

(Page ID #207–08). After receiving this determination, Watford filed a related EEOC charge

against JCTA, stating that she “requested that JCPS grant [her] the right to pursue arbitration of

[her] grievances through . . . JCTA” but that her “request for arbitration was denied because

[she] had filed a complaint of discrimination.” R. 34-5 (Charge No. 470-2012-03069) (Page ID

#206).

Several months later, on January 31, 2013, the EEOC issued a dismissal and notice of

rights with respect to Watford’s initial EEOC charge, noting that its investigation into whether

JCPS violated Watford’s Title VII rights was inconclusive. R. 37-9 (Dismissal & Notice of

Rights Charge No. 474-2011-00452) (Page ID #614). Arbitration then commenced on April 23,

1

Although Watford initially named JCPS in her EEOC charge and district-court complaint, R. 34-3 (Charge

No. 474-2011-00452) (Page ID #151); R. 1 (Compl. at 1) (Page ID #1), the parties agreed to substitute JCBE “as the

proper party for the currently named Defendant, Jefferson County Public Schools.” R. 7 (Agreed Order) (Page ID

#35).

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2013. R. 38-4 (Arbitration Op. & Award at 2) (Page ID #649); see also R. 37-10 (Watford Dep.

at 126–27) (Page ID #617).

On April 24, 2013, the second day of arbitration, Watford filed her complaint in the

United States District Court for the Western District of Kentucky, naming JCPS as the

defendant,2 and alleging age discrimination, race discrimination, and retaliation in the form of

her termination and holding the arbitration in abeyance. R. 1 (Compl.) (Page ID #1–11). In

response, JCBE filed a motion to hold the arbitration in abeyance until the suit was resolved, and

on August 9, 2013, the arbitrator agreed to do so. R. 38-4 (Arbitration Op. & Award at 12) (Page

ID #659).

On October 25, 2013, Watford filed another EEOC charge, this time alleging that JCBE

retaliated against her by holding the arbitration in abeyance for filing a district-court complaint.3

R. 34-10 (Charge No. 470-2013-03310) (Page ID #216). The EEOC issued a notice of right to

sue with respect to this charge on December 31, 2014. R. 34-20 (Notice of Right to Sue within

90 Days Charge No. 470-2013-03310) (Page ID #265).

C. Procedural History

The underlying issues in this appeal arose when Watford filed a motion for partial

summary judgment, claiming that the evidence unequivocally showed that “JCPS retaliated

against [her] by holding her arbitration proceedings relating to her termination in abeyance” and

that “JCTA retaliated against [her] by acquiescing to the enforcement of Article 9, Section D.”

R. 34-1 (Pl.’s Mem. Law in Support of Her Mot. Partial Summ. J. at 8–9) (Page ID #146–47).

JCBE and JCTA individually opposed Watford’s motion and filed cross-motions for partial

summary judgment. R. 36 (JCBE’s Cross-Mot. Summ. J.) (Page ID #269–70); R. 38 (JCTA’s

Cross-Mot. Summ. J.) (Page ID #623–24). Of the view that the abeyance provision of the CBA

2

Watford amended her complaint to add JCTA and other retaliation counts on December 30, 2014. R. 21

(Am. Compl.) (Page ID #78–91).

3

It appears that Watford filed a similar charge against JCTA, see R. 34-1 (at 4) (Page ID #142), although

this charge is not in the record. However, Watford purports to have the notice of right to sue associated with this

charge, which the EEOC issued on September 29, 2014. R. 34-18 (Notice of Right to Sue Charge No. 470-2013-

03311) (Page ID #263).

No. 16-6183 Watford v. Jefferson Cty. Pub. Sch. et al. Page 6

was not an adverse employment action, the district court awarded summary judgment against

Watford with respect to Counts IV (Retaliation—Grievance) and V (Retaliation—Arbitration) on

February 17, 2016. Watford v. Jefferson Cty. Pub. Sch., 163 F. Supp. 3d 456, 462–63 (W.D. Ky.

2016).

Several months after the district court issued its decision, Watford filed a motion for

voluntary dismissal with respect to the remaining counts, I through III (Age Discrimination,

Race Discrimination, and Retaliation—Termination), pursuant to Federal Rule of Civil

Procedure 41(a)(2). R. 60 (Pl.’s Mot. Voluntary Dismissal) (Page ID #1686). The district court

granted Watford’s motion and closed the case. R. 62 (Order Granting Pl.’s Mot. Voluntary

Dismissal) (Page ID #1694). Shortly thereafter, Watford filed her notice of appeal with respect

to the district court’s order on the motion and cross-motions for partial summary judgment.

R. 63 (Notice of Appeal) (Page ID #1695).

II. DISCUSSION

We begin by addressing whether JCTA is a labor organization and whether, as such, it is

exposed to liability under the anti-retaliation provisions. We then address whether JCBE and

JCTA’s conduct amounted to an adverse employment action, the central question on appeal.

A. JCTA’s Status as a Labor Organization

JCTA raises two issues apart from the central question of whether the abeyance provision

of the CBA constitutes an adverse employment action: (1) that we lack jurisdiction over JCTA

and (2) that it could not have retaliated against Watford because it advocated on her behalf and

did not seek to hold proceedings in abeyance.

First, and as a preliminary matter, JCTA argues that we lack jurisdiction because JCTA is

assertedly not a “labor organization” pursuant to 29 U.S.C. § 630 or 42 U.S.C. § 2000e. See

JCTA’s Br. at 1. However, the “labor organization” designation is located in the definitions

section of the ADEA and Title VII, a “provision that ‘does not speak in jurisdictional terms or

refer in any way to the jurisdiction of the district courts.’” See Arbaugh v. Y & H Corp.,

546 U.S. 500, 515–16 (2006) (quoting Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 394

No. 16-6183 Watford v. Jefferson Cty. Pub. Sch. et al. Page 7

(1982)), discussed in Cobb v. Contract Transp., Inc., 452 F.3d 543, 549–50 (6th Cir. 2006). It is

therefore not a jurisdictional prerequisite. See id. Moreover, JCTA did not raise this argument

below, R. 38-1 (JCTA’s Mem. of Law in Opp’n to Pl.’s Mot. Partial Summ. J. & in Support of

Cross-Mot. for Partial Summ. J.) (Page ID #625–40), and so it is forfeited. See Lucaj v. FBI,

852 F.3d 541, 547 n.4 (6th Cir. 2017). As to the true jurisdictional question, we observe that the

district court had jurisdiction over this Title VII and ADEA case pursuant to 28 U.S.C. § 1331.

We have jurisdiction pursuant to 28 U.S.C. § 1291.

Second, whether or not JCTA advocated on behalf of Watford against JCBE’s

interpretation of the CBA, the fact remains that JCTA signed the CBA in the first place.

“A union’s role as a joint participant in the negotiation of a collective bargaining agreement has

been found sufficient to render it liable under Title VII where the contractual provisions were

discriminatory in operation or perpetuated the effects of past discrimination.” Farmer v. ARA

Servs., Inc., 660 F.2d 1096, 1104 (6th Cir. 1981) (citing, inter alia, Int’l Bhd. of Teamsters v.

United States, 431 U.S. 324, 348 n.30 (1977)). As “a joint participant in the negotiation of a

collective bargaining agreement,” id., JCTA is liable for agreeing to contractual provisions that

“discriminate against any member . . . because he has opposed any practice made an unlawful

employment practice by this subchapter, or because he has made a charge, testified, assisted, or

participated in any manner in an investigation, proceeding, or hearing under this subchapter.”

42 U.S.C. § 2000e-3(a) (2012); see also 29 U.S.C. § 623(d) (2012). Therefore, if the provisions

of the CBA discriminate on this retaliatory basis, JCTA is exposed to liability under Title VII

and the ADEA. We discuss below whether these provisions are retaliatory.

B. Adverse Employment Action

The dispositive question on appeal is straightforward: Is it a materially adverse action if

a CBA requires grievance proceedings to be held in abeyance upon the filing of an EEOC

charge? Watford argues that it is, see Appellant’s Br. at 13–14, a position that JCTA took in

prior stages of this litigation, JCTA’s Br. at 9. JCBE argues and the district court held that it is

not. See JCBE’s Br. at 10; Watford, 163 F. Supp. 3d at 463. In our view, the facts of this case

perfectly illustrate why holding grievance proceedings in abeyance, a step that has interminably

stalled procedures intended to “be processed as rapidly as possible,” R. 36-4 (CBA art. 29, § D)

No. 16-6183 Watford v. Jefferson Cty. Pub. Sch. et al. Page 8

(Page ID #401–02), would dissuade a reasonable worker from making or supporting a charge of

discrimination.

In order to “prevent[] an employer from interfering (through retaliation) with an

employee’s efforts to secure or advance enforcement of [Title VII’s] basic guarantees,”

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 63 (2006), the act contains the

following anti-retaliation provision: “It shall be an unlawful employment practice for an

employer to discriminate against any of his employees . . . or for a labor organization to

discriminate against any member thereof . . . because he has opposed any practice made an

unlawful employment practice by this subchapter, or because he has made a charge, testified,

assisted, or participated in any manner in an investigation, proceeding, or hearing under this

subchapter.” 42 U.S.C. § 2000e-3(a). The ADEA contains a nearly identical anti-retaliation

provision, 29 U.S.C. § 623(d), which is functionally equivalent for purposes of this analysis. See

Fox v. Eagle Distrib. Co., 510 F.3d 587, 591 (6th Cir. 2007).

The focus of this appeal concerns whether JCBE and JCTA’s actions constitute an

adverse employment action: that is, an employer “discriminate[s] against any of his employees,”

42 U.S.C. § 2000e-3(a); 29 U.S.C. § 623(d), if its actions “would have been materially adverse to

a reasonable employee or job applicant.” Burlington N., 548 U.S. at 57. Significantly, “Title

VII’s substantive provision and its antiretaliation provision are not coterminous”; the scope of

the anti-retaliation provision is broader than the substantive provision. Id. at 67. In keeping with

this broader scope, we have held that terminating an in-house grievance proceeding because the

employee filed an EEOC charge “clearly constituted retaliation in violation of 29 U.S.C.

§ 623(d).” SunDance, 466 F.3d at 498 (citing EEOC v. Bd. of Governors of State Colls.

& Univs., 957 F.2d 424, 430 (7th Cir. 1992)); see also Trayling v. St. Joseph Cty. Emp’rs

Chapter of Local #2955, 953 F. Supp. 2d 793, 798 (W.D. Mich. 2013), appeal dismissed

751 F.3d 425 (6th Cir. 2014) (dismissing the appeal because the district court’s order was not a

final, appealable decision); Brinkley v. Bd. of Comm’rs, No. 2:12–CV–00469, 2013 WL 394158,

at *4–5 (S.D. Ohio Jan. 29, 2013); Wedding v. Univ. of Toledo, 884 F. Supp. 253, 255 (N.D.

Ohio 1995), rev’d on other grounds, 89 F.3d 316 (6th Cir. 1996).

No. 16-6183 Watford v. Jefferson Cty. Pub. Sch. et al. Page 9

Because this court has characterized the termination of grievance proceedings as an

adverse employment action, SunDance, 466 F.3d at 498, the dispositive question in this case is

whether there is a material difference between terminating a grievance and holding it in

abeyance. We hold that there is not a material difference. Both provisions make the availability

of remedies contingent on not filing an EEOC charge. Singling out employees or union

members on this basis “discriminate[s]” against them because they “opposed any practice made

an unlawful employment practice by” Title VII and the ADEA. 42 U.S.C. § 2000e-3(a);

29 U.S.C. § 623(d). And “[a] benefit that is part and parcel of the employment relationship may

not be doled out in a discriminatory fashion, even if the employer would be free . . . not to

provide the benefit at all.” Hishon v. King & Spalding, 467 U.S. 69, 75 (1984), cited in Bd. of

Governors, 957 F.2d at 430.

The CBA’s effect on a reasonable employee is not softened merely because grievances

are held in abeyance rather than terminated. Employees avail themselves of the grievance

process at least in part because grievances are supposed to “be processed as rapidly as possible.”

R. 36-4 (CBA art. 29, § D) (Page ID #401–02). However, because the CBA requires grievances

to be held in abeyance upon the filing of an EEOC charge, id. (Page ID #402), rapidity was never

a realistic outcome for a charge-filing individual like Watford. Because the statute of limitations

for filing an EEOC charge ran three hundred days after Watford was terminated, she had three

hundred days to resolve her grievance before it would be held in abeyance. But on average,

individuals wait 399 days after filing a grievance to receive an arbitration award, William H.

Holley et al., The Labor Relations Process 569 & n.69 (11th ed. 2016) (citing Fed. Mediation &

Conciliation Serv., https://www.fmcs.gov/). And in Watford’s case, in part because proceedings

were held in abeyance, she waited 923 days until arbitration even began. Compare R. 40-4

(Termination Letter at 4) (Page ID #883), with R. 38-4 (Arbitration Op. & Award at 2) (Page ID

#649).

Thus, Watford was presented with a false binary: either choose a speedy, extrajudicial

resolution to her claims through the CBA’s grievance procedures or file an EEOC charge. Faced

with this choice, many reasonable employees would be dissuaded from filing an EEOC charge,

preferring instead to resolve their claims quickly and outside of the judicial process. Of course,

No. 16-6183 Watford v. Jefferson Cty. Pub. Sch. et al. Page 10

we encourage alternative dispute resolution, but not at the expense of Title VII and the ADEA’s

guarantees. “A charge filed with the EEOC is not a complaint seeking relief. Rather it informs

the EEOC of possible employment discrimination.” SunDance, 466 F.3d at 499. Employment

practices that interfere with this information-gathering system run afoul of Title VII and the

ADEA. And because the CBA does just that, we hold that it violates the antiretaliatory

provisions of those statutes.

Defendants argue in response that Richardson v. Commission on Human Rights

& Opportunities, 532 F.3d 114 (2d Cir. 2008), should guide our decision in this case. We

disagree. With due respect to our sister circuit, Richardson applied an outdated definition of

“adverse employment action” that is inconsistent with Burlington Northern. Under Richardson,

the Second Circuit held that an employer may take “reasonable defensive measures” so long as

they “d[o] not affect the complainant’s work, working conditions, or compensation, and that its

control over the handling of claims against it served several essential purposes that have nothing

to do with retaliation, malice, or discrimination.” Richardson, 532 F.3d at 123 (internal

quotation marks and alterations omitted) (quoting United States v. N.Y.C. Transit Auth., 97 F.3d

672, 677 (2d Cir. 1996)). As such, Richardson’s focus was on whether “the election-of-remedies

provision [at issue] qualif[ied] as a ‘reasonable defensive measure.’” Id. at 124. Our focus, as

the Supreme Court has instructed, is broader. We ask whether a reasonable employee would be

dissuaded from filing a charge. As the Court observed, “the standard is tied to the challenged

retaliatory act, not the underlying conduct that forms the basis of the Title VII complaint.”

Burlington Northern, 548 U.S. at 68–69. Simply put, “the antiretaliation provision does not

confine the actions and harms it forbids to those that are related to employment or occur at the

workplace.” Id. at 57. And because the Richardson court so confined the forbidden actions and

harms, its reasoning does not guide our decision.

III. CONCLUSION

Title VII and the ADEA protect employees from employers and labor organizations who

would restrict the employees’ ability to file EEOC charges. In recognition of this principle, we

REVERSE the district court’s judgment and REMAND for further proceedings consistent with

this opinion.

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_________________

DISSENT

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JULIA SMITH GIBBONS, Circuit Judge, dissenting. In this appeal, we are asked to

determine whether Joyce Watford suffered an adverse employment action for the purposes of

establishing retaliation under Title VII and the Age Discrimination in Employment Act (ADEA).

The alleged adverse action is a decision by the Jefferson County Board of Education (the Board)

to stay her grievance proceedings after she filed a charge of discrimination with the Equal

Employment Opportunity Commission (EEOC) (Count IV) and again after she filed suit in

federal court (Count V). The Board did so in accordance with the terms of a collective-

bargaining agreement (CBA) that governed the terms of Watford’s employment. The majority

concludes not only that the Board’s actions constituted an adverse employment action but also

that the CBA is facially retaliatory. It does so, in part, by treating the resolution of Watford’s

claims as a natural and logical extension of our decision in EEOC v. Sundance Rehabilitation

Corp., 466 F.3d 490 (6th Cir. 2006). I disagree with the weight of authority placed on Sundance,

the conclusion that Watford suffered an adverse employment action, and the finding that the

CBA is facially retaliatory. I would affirm the district court’s grant of summary judgment by

finding, as a matter of law, that staying a grievance when an employee files an EEOC charge or

discrimination lawsuit does not constitute retaliation under Title VII or the ADEA. Therefore, I

respectfully dissent.

I.

The majority begins with an assumption that the district court’s grant of summary

judgment is inconsistent with our decision in Sundance. It cites Sundance for the proposition

that terminating grievance proceedings because an employee files an EEOC charge clearly

constitutes retaliation. Although the Sundance court did opine that terminating grievance

proceedings constitutes an adverse employment action, the entire discussion is dicta.

Sundance involved an EEOC challenge to the terms of an employer’s separation

agreement. 466 F.3d at 495. The EEOC argued that the agreement was “facially” or “per se”

No. 16-6183 Watford v. Jefferson Cty. Pub. Sch. et al. Page 12

retaliatory because it conditioned benefits on a promise not to file an EEOC charge against the

employer. Id. at 495–96. The court addressed this argument, in part, by looking to EEOC v.

Board of Governors of State Colleges & Universities, 957 F.2d 424 (7th Cir. 1992), which

involved a CBA provision allowing an employer to terminate grievance proceedings if the

employee sought relief in any other forum. See Sundance, 466 F.3d at 497–98. The Sundance

court opined that this constitutes an adverse action and was clearly retaliation because the

grievance proceedings were terminated when the plaintiff filed an EEOC charge. Id. The court,

however, concluded that Board of Governors was not “compelling precedent with respect to

[the] case.” Id. It distinguished Board of Governors as involving a policy that was actually

enforced, whereas the employer in Sundance had only offered a contract with a problematic

term. Id. The court emphasized that Board of Governors was “factually distinguishable and

inapplicable to this case.” Id. at 500–01. It ultimately concluded that offering the agreement

was not retaliatory without reaching the question of whether the provision, itself, constituted

retaliation. Id. at 500–01. For this reason, Sundance does not control our decision here. Instead,

we are faced with an issue of first impression.

Additionally, even if Sundance were directly applicable in this case, its analysis does not

compel the majority’s conclusion. The Board of Governors CBA discussed in Sundance gave

that employer the right to terminate an employee’s pending internal grievance proceeding if she

pursued relief in any other forum. See Sundance, 466 F.3d at 497–98 (discussing Board of

Governors, 957 F.2d at 426–30). Here, Watford’s internal grievance is not terminated but is

instead held in abeyance during the pendency of her EEOC claim. The majority asserts that

staying a grievance and terminating a grievance are not materially different because both “make

the availability of remedies contingent on not filing an EEOC charge.” But an ordering of

remedies—as is the case here—is not the same as an election of remedies. Yes, the CBA

requires that Watford resolve EEOC and judicial avenues of relief before finishing arbitration.

But filing an EEOC charge or a lawsuit does not eliminate her ability to pursue arbitration; that

is, it does not necessarily require her to forego one at the expense of the other. Instead, Watford

will have every opportunity to return to her internal grievance after pursuing her charge of

discrimination in another forum. Thus, even were Sundance’s discussion of Board of Governors

properly considered here, the terms of this CBA are fundamentally different.

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II.

Watford did not suffer an adverse employment action when her grievance was held in

abeyance pursuant to the CBA, and thus she should not succeed on her retaliation claims. In

order to benefit from the protections of the ADEA and Title VII, Watford must show that

defendants’ actions were “materially adverse to a reasonable employee.” Burlington N. & Santa

Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006). This “means that the employer’s actions must be

harmful to the point that they could well dissuade a reasonable worker from making or

supporting a charge of discrimination.” Id. The majority believes that the CBA will dissuade a

reasonable worker from making a charge of discrimination, whether it be filing a complaint with

the EEOC or filing a discrimination suit. I disagree.

First, the majority claims that Watford was forced to choose between “speedy,

extrajudicial resolution to her claims through the CBA’s grievance procedures” and pursuing an

EEOC charge. It supports this proposition with the fact that the average person waits 399 days to

receive an arbitration award. That fact, however, really has no import in this case. It says

nothing about the average time claims are resolved under this CBA. The majority also notes that

Watford waited 923 days, in part, because her grievance was held in abeyance. This ignores

important context as well as the terms of the CBA.

Under this CBA, employees will rarely have to make a choice about ordering their

remedies. The CBA provides a process for employee grievances with specific deadlines and a

stated intent that a grievance “be processed as rapidly as possible.” DE 34-4, Page ID 200–02.

This is not merely aspirational language. An employee must notify her supervisor of a grievance

within 15 days of any incident. After an attempt at an informal resolution, the employee can file

a written grievance, and a school administrator must respond within 3 days. From there, the

employee has 10 days to submit the grievance to the school’s superintendent. The

superintendent then has 12 days to hold a hearing and issue a written decision. At this point, the

decision of how to proceed is turned over to the union, which has 25 days to decide whether it

will seek arbitration of the grievance. Although the deadlines can be extended by mutual

agreement, and although the CBA does not establish a deadline for every step in this process (for

example, how long the supervisor has to attempt to informally resolve the initial grievance), the

No. 16-6183 Watford v. Jefferson Cty. Pub. Sch. et al. Page 14

bulk of the process should be completed within 65 days. Thus, many employees won’t have to

worry about staying a grievance because it will be resolved well before the 300-day EEOC

deadline.

Watford’s own experience belies the majority’s claim about the impact of the CBA

provision on her decision. Watford filed her grievance regarding her termination on October 13,

2010. That grievance was denied by the superintendent 53 days later on December 6, 2010.

Arbitration was scheduled for July 2011, approximately one month before the EEOC deadline

for her termination grievance. Watford, however, filed her EEOC charge on February 24, 2011.

Thus, Watford made the decision that resulted in the stay of her grievance well ahead of the

EEOC deadline, knowing that it would result in her arbitration being held in abeyance. This was

not a decision forced on her as a result of timing—Watford had an opportunity for a timely

resolution of her grievance, but instead she chose to file with the EEOC without giving the

scheduled arbitration a chance.

Second, even if faced with the expiration of the 300-day EEOC deadline, a reasonable

employee would not give up her right to judicial resolution of a discrimination claim simply

because it means a delay in the resolution of her grievance. The procedures and protections

outlined in the CBA’s grievance provisions pale in comparison to the robust procedures and

remedies available to plaintiffs making ADEA and Title VII claims. For example, if a grievance

proceeds to arbitration, the employee is no longer in control of her grievance; the CBA provides

that it is the union, not the employee, who makes the decisions with respect to arbitration. All of

these factors, together, cut strongly against the suggestion that a reasonable person would do

anything but file an EEOC charge when faced with such a situation.

Finally, although the majority’s decision provides a considerable benefit to employees in

the short term—in that an employee has considerable leverage to pursue relief in the forum she

prefers and to change forums at her discretion—I question whether it will benefit employees in

the long run. There is no obligation for an employer to agree to an expedited grievance

procedure. Forcing employers to litigate on two fronts may lead them to abandon this method of

resolution altogether. Not only will that increase costs to all parties and delay resolution of

No. 16-6183 Watford v. Jefferson Cty. Pub. Sch. et al. Page 15

claims, but it runs the risk of undermining arbitration as a method of resolving disputes in these

cases.

Because a reasonable employee in Watford’s situation would not be dissuaded from filing

an EEOC charge or discrimination suit, Watford did not suffer an adverse employment action

when the Board stayed her grievance proceedings pursuant to the terms of the CBA.

Accordingly, the district court was correct to find that she cannot succeed on her retaliation

claims. We should affirm the decision of the district court on this basis.

III.

Finally, the majority goes too far in determining that the CBA provision is “retaliatory on

its face.” This is, perhaps, the most problematic holding because it is made entirely on the

presumption that Sundance controls. Although the district court recognized that a facially

retaliatory policy is direct evidence of discriminatory intent, it never decided whether the policy

was facially retaliatory or whether the CBA constituted direct evidence of retaliation. Instead,

the district court limited its holding to the question of an adverse employment action, an element

applicable to both the McDonnell Douglas burden-shifting and direct-evidence approaches to

establishing retaliation. We need not decide anything more than whether Watford suffered an

adverse employment action. I would find that she did not as a matter of law. In light of this, she

cannot succeed on her retaliation claims, and all other claims have been voluntarily dismissed.

I would therefore remand to the district court for entry of judgment in favor of the defendants.