The Fifth Circuit, applying 14 Penn Plaza LLC v. Pyett, 556 U.S. 249 (2009), holds that the UPS collective bargaining agreement did not “clearly and unmistakably” waive a driver’s right to commence a Title VII sex discrimination suit.
Ibarra v. United Parcel Service, Inc., No. 11-50714 (5th Cir. Sept. 13, 2012): The driver, Ibarra, struck a telephone pole with her delivery van. She was fired. Ibarra (a union member) grieved the termination under the CBA’s just-cause provision and lost. She then filed an EEOC charge and sued her employer under Title VII. The district court held that the employee’s exclusive remedy for termination was under the CBA, and granted summary judgment.
The Fifth Circuit vacates and remands. Sorting out the Supreme Court case law up through Pyett, the panel applies the standard under that case – adopted from Wright v. Universal Maritime Services Corp., 525 U.S. 70 (1998) – that only “a collective-bargaining agreement that clearly and unmistakably requires union members to arbitrate” statutory civil rights claims could waive the right of individual members to bring civil actions.
It holds that the exclusive grievance process of the CBA (Art. 36 of the CBA) did not encompass statutory civil rights claims. The relevant provision was Art. 51, which states:
“The Employer and the Union agree not to discriminate against any individual with respect to hiring, compensation, terms or conditions of employment because of such individual’s race, color, religion, sex, sexual orientation, national origin, physical disability[,] veteran status or age in violation of any federal or state law, or engage in any other discriminatory acts prohibited by law, nor will they limit, segregate or classify employees in any way to deprive any individual employees of employment opportunities because of race, color, religion, sex, national origin, physical disability, veteran status or age in violation of any federal or state law, or engage in any other discriminatory acts prohibited by law. This Article also covers employees with a qualified disability under the Americans with Disabilities Act.”
The panel deems significant that (1) the article itself did not mention Title VII or require that such legal claims be grieved; and (2) the CBA included no express waiver of the right to bring a civil action. It also rejects an alternative argument (suggested for the first time in oral argument by UPS) that Arts. 36 and 51 “merely impose an exhaustion requirement,” so that the court need not decide whether the CBA waives Ibarra’s right to a judicial forum. Holds the panel, “[t]his argument is dubious, and in fact conflicts with the position UPS has taken throughout the litigation.”
The case is remanded for consideration of the remaining, merits arguments made by UPS in the district court for summary judgment.