The Eighth Circuit stumbles in reading its own case law on Title VII retaliation, while the Sixth Circuit carries on a serious debate about the issue preclusive effect of a labor arbitration in an Americans With Disabilities Act case.
Van Horn v. Best Buy Stores, No. 07-2677 (8th Cir. May 23, 2008): The circuits have generally held that employees may not litigate a mixed-motive retaliation case through 42 U.S.C. § 2000e-2(m) — added by the 1991 Civil Rights Act — because Congress omitted the word “retaliation” from this subsection (whether by design or inadvertance, no one has ever adequately explained). But courts nevertheless have allowed mixed-motive retaliation cases to proceed through the pre-Act framework laid out by Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). The Eighth Circuit had itself previously so held in Norbeck v. Basin Elec. Power Co-op., 215 F.3d 848 (8th Cir. 2000).
But I suspect that sub-par law-clerking might have misled the Eighth Circuit into concluding otherwise in Ms. Van Horn’s case.
“Although Ms. Van Horne admits that [her supervisor] Mr. Clark had addition al reasons for discharging her, she strenuously contends that she needed to show only that her reports were a “motivating factor” in his decision, as that term is defined in Price Waterhouse v. Hopkins, 490 U.S. 228, 241-42 (1980). We have held, however, that the Price Waterhouse standard does not apply to retaliation claims: To make out a retaliation claim, the plaintiff must show that the protected conduct was a ‘determinative – not merely motivating – factor’ in the employer’s adverse employment decision.”
For this proposition, the panel cites Carrington v. City of Des Moines, Iowa, 481 F.3d 1046, 1053 (8th Cir. 2007), but that case merely cited Norbeck, and Norbeck in turn stated the rule correctly. So the employee becomes the victim of the slip of a pen. [Note that the opinion even mis-dates the Price Waterhouse decision — it give the decision date as “1980.”]
Nance v. Goodyear Tire Co., No. 06-6563 (6th Cir. May 23, 2008): The Supreme Court next term in Pyett v. 14 Penn Plaza will take on whether to overrule part of the holding in Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974), that mandatory arbitration clauses in collective bargaining agreements may not waive the rights of workers to a judicial forum for federal statutory claims. But another part of Alexander — the issue preclusive effect of a labor arbitration in civil litigation — may remain untested. The Sixth Circuit panel in this case, while agreeing that summary judgment ought to be affirmed, divided sharply over this latter issue.
The principal issue on review was whether an arbitrator’s decision that the employee had abandoned her job under the collective bargaining agreement (i.e. “resigned without notice”) precluded her from arguing in her ADA disabilities discrimination case that the real reason for her termination was her unwillingness to perform work dangerous to her, because of her disability.
The panel majority (authored by Judge Cole, joined by Judge Moore) held that the arbitration had no preclusive effect. It began with a statement of the issue:
“Goodyear argues, and the district court agreed, that Alexander and its progeny are distinguishable because Nance only arbitrated the question of whether she had resigned without notice as defined by Article X of the CBA. To be sure, Alexander differs from the instant case in that Alexander submitted both his discrimination and contract claims to arbitration whereas Nance’s grievance involves only a contractual claim. The question, then, is whether a prior arbitration over a contractual issue precludes (or ‘collaterally estops’) a plaintiff from re-litigating that same issue in federal court. We think not.”
The panel majority found the circumstances too close to Alexander to allow wiggle room.
“We find it difficult to distinguish this case from Alexander. In Alexander, the Court considered whether an adverse arbitration decision finding that Alexander was fired for ‘just cause’ had a preclusive effect, and here, we consider whether an adverse arbitration decision finding that Nance ‘resigned without notice’ has a preclusive effect. Both cases involve the adjudication of statutorily guaranteed rights, an inquiry that Congress reposed in federal courts.”
It also held that the absence of procedural protections in arbitration warrants a lack of deference:
“Arbitration does not carry with it the right to a trial by jury, arbitrators are not generally required to give the reasons for their decisions, the record of arbitral proceedings generally is not as complete as a trial record, judicial review of arbitration decisions is more limited than review of district court proceedings, the Federal Rules of Evidence and of Civil Procedure do not apply, and other rights such as testimony under oath, cross-examination, discovery, and compulsory process are restricted. When an employee such as Nance seeks to vindicate her federal rights to be free from discrimination, we must review all factual issues-including contractual ones-de novo in order to ensure that ‘the interests of the individual employee [are not] subordinated to the collective interests of all employees in the bargaining unit.’ In short, where suits are tried is often as important as the substantive rights sought to be vindicated.” [Citations omitted.]
The majority did hold, though, that arbitrator’s ruling was at least admissible evidence concerning pretext:
“One final point: although we review Nance’s ADA claim de novo, we do not read Alexander as precluding courts from considering a prior arbitration as a factor in their calculus. Indeed, a district court may admit an arbitrator’s decision as evidence based on ‘the degree of procedural fairness in the arbitral forum, adequacy of the record with respect to the issue of discrimination, and the special competence of particular arbitrators,’ or when ‘the issue is solely one of fact, specifically addressed by the parties and decided by the arbitrator on the basis of an adequate record.’ [quoting Alexander]”
And the panel majority, reaching the substance of the claim, affirmed summary judgment on the merits.
The dissent (by Judge Batchelder) saw a different way to look at the governing case law:
“I do not agree that Alexander and its progeny disallow the use of issue preclusion (collateral estoppel) to bar the re-litigation of any issue raised anew in the subsequent action. Specifically, I do not agree that Alexander or its progeny explicitly disallow the use of issue preclusion to bar the re-litigation of an issue that is solely dependent on an interpretation or application of the CBA (such as the resignation-under-the-CBA issue in this case) and, hence, otherwise specifically committed to the expertise of the arbitrator.”
The dissent contended that by not according the arbitrator’s award at least issue preclusive effect, it would allow the employee two complete cycles to attack an award — directly, and by the collateral route:
“I believe that, by conducting a de novo review of the meaning and applicability of Article X of the Goodyear CBA with respect to the resignation-as-determined-by-the-CBA question, we have allowed a plaintiff to collaterally attack the arbitrator’s decision in a way that contradicts our Michigan Family Resources [arbitral review] precedent, merely by filing a statutory-rights-based claim in federal court, regardless of its merit, and thus, to circumvent the deferential standard of Michigan Family Resources on an issue that is purely contractual.”
Everyone might notice that because the employer prevailed, it may not seek rehearing or en banc review of the decision, even if this sticks the management bar with a bad decision. This decision may be re-written most likely only if the plaintiff seeks review, and we (on the employees’ side) most certainly hope that she does not.