The Second Circuit splits with the Seventh Circuit’s decision in EEOC v. Board of Governors, 957 F.2d 424 (7th Cir.), cert. denied, 506 U.S. 906 (1992), and holds that it is not unlawful retaliation under Title VII for a collective bargaining agreement to provide that an employee must forfeit her right to grieve a complaint when she files a charge with the EEOC about the same action.
Richardson v. Comm’n on Human Rights & Opportunities, No. 06-0474 (2d Cir. July 7, 2008): In this case, the CBA governing the workplace — coincidently, a state agency charge with enforcing state civil rights laws — provided that “disputes over claimed unlawful discrimination shall be subject to the grievance procedure but shall not be arbitrable if a complaint is filed with the Commission on Human Rights and Opportunities [CHRO] arising from the same common nucleus of operative fact” [Article 15, Section 10]. Hence, under this provision, the employee’s union withdrew a grievance filed on behalf of the plaintiff upon discovering that the plaintiff also filed a charge with the CHRO, cross-filed with the EEOC.
The plaintiff argued that the above-quoted CBA provision violated Title VII on its face, because it deprived her of the right enjoyed under the CBA to arbitrate a grievance solely by virtue of her having filed a charge. But the Second Circuit, affirming summary judgment for the agency, held that the provision violated neither the anti-retaliation provisions of Title VII, 42 U.S.C. § 2000e-3(a), nor the judge-created prohibition against prospective waivers of Title VII rights enshrined in Alexander v. Gardner-Denver Co., 415 U.S. 36, 45 (1974).
Concerning the anti-retaliation theory, the panel found that depriving an employee of the right to file a grievance did not constitute a “materially adverse action.” Citing to and quoting United States v. N.Y. City Transit Auth., 97 F.3d 672, 677 (2d Cir. 1996), the panel held that such “[r]easonable defensive measures do not violate the anti-retaliation provision of Title VII, even though such steps are adverse to the charging employee and result in differential treatment.” Moreover, “[t]he policy embodied by the CBA’s election-of-remedies provision also avoids duplicative proceedings in the two fora maintained by the employer for adjudicating claims of discrimination without affecting a complainant’s work, working conditions, or compensation. It does not foreclose other avenues of relief, such as the right to pursue claims in federal court which was at issue in Gardner-Denver, or the right to pursue claims with non-CHRO bodies such as the EEOC. Indeed, the CBA does not appear even to foreclose subsequent filing of claims with the CHRO.”
As to the latter theory, the panel held that “Richardson remained free to file a charge with the EEOC, as she did, and to pursue a Title VII action in federal court, as she has. She did not prospectively waive any of her Title VII rights, nor did her union do so on her behalf.” Indeed, the court endorsed the provision as “a rather sensible outcome of the collective bargaining process. It makes sense that an employer might not wish to “retain legal counsel to deal with discrimination claims and take other steps reasonably designed to prepare for and assist in the defense” of a lawsuit while simultaneously preparing for an arbitration hearing on the same issue. . . . And it also makes sense that a union might want to deploy its scarce resources selectively.”