Portland State University Chapter of the American Ass'n of University Professors v. Portland State University
291 P.3d 658
Or.2012Background
- PSU and the Association formed a bargaining unit with a dispute-resolution process in Article 28 of their collective bargaining agreement, including a Resort to Other Procedures (ROP) option.
- PSU could suspend or terminate grievance/arbitration under Article 28.B if a member pursued relief in an outside agency or court.
- Wilson (a PSU fixed-term faculty member) alleged workplace retaliation and nonrenewal; AA/EO investigated; PSU did not renew her contract.
- The Association filed grievances on Wilson’s behalf; PSU refused to process citing the ROP clause and later justified by outside-filed complaints to EEOC and BOLI.
- ERB held the ROP clause was illegal and unenforceable as discriminatory under ORS 659A.030(1)(f) and Title VII, and ordered PSU to process the grievances; PSU appealed.
- Court of Appeals reversed ERB on the legal standard but remanded for ERB to consider Burlington-type standards.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| ERB authority to review contract provision for legality | Association: ERB may interpret/void illegal contract terms under ORS 243.672(1)(g). | PSU: ERB limited to examining express terms of the contract. | ERB acted within its statutory authority. |
| Whether the ROP clause unlawfully discriminates under ORS 659A.030(1)(f) and Title VII | ROP discriminates against employees who file discrimination claims, violating antiretaliation provisions. | ROP is facially neutral and merely a sequencing option, not necessarily adverse. | ROP is facially discriminatory under ORS 659A.030(1)(f) and Title VII and unenforceable. |
| Application of Burlington standard to proving retaliation | Association: Burlington standard shows actionable retaliation via materially adverse action. | PSU: ROP is not a materially adverse action; it’s a defensive sequencing measure. | Burlington framework supports finding that losing access to contract-backed grievance constitutes retaliation. |
| Whether Second Circuit Richardson approach applies here | Richardson supports treating ROP as a reasonable defensive mechanism without disadvantaging statutory rights. | Richardson limited to its narrow context of dual fora; not controlling here. | Richardson not applicable; the ROP violates remedial purposes under state/federal antiretaliation law. |
Key Cases Cited
- Board of Governors of State Colleges and Universites v. Board of Trustees, 957 F.2d 424 (7th Cir. 1992) (retaliation policy against discrimination claims violates antiretaliation provisions)
- 14 Penn Plaza LLC v. Pyett, 556 U.S. 247 (U.S. 2009) (arbitration clauses cannot waive substantive federal civil rights; but may allow simultaneous statutory claims)
- Richardson v. Commission on Human Rights, 532 F.3d 114 (2d Cir. 2008) (reaffirmed that an ROP-like provision can be non-retaliatory in narrow contexts; distinguishable from dual-forum setup here)
- Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53 (Supreme Court 2006) (definitional standard for what constitutes a materially adverse action in retaliation claims)
- Vaughn v. Pacific Northwest Bell Telephone, 289 Or. 73 (1980) (state antidiscrimination framework informing Oregon antiretaliation interpretation)
- Stull v. Hoke, 326 Or. 72 (1997) (principle that statutes must be interpreted in proper context, not solely by party arguments)