Trayling v. St. Joseph County Employers Chapter of Local 2955
953 F. Supp. 2d 793
W.D. Mich.2013Background
- Plaintiff Anita Trayling, formerly an appraiser in the county’s Equalization Department, was laid off on Nov. 9, 2009 and given seven days to exercise bumping rights under AFSCME contract.
- Plaintiff pursued a bump to a different county position, began a trial period Dec. 1, 2009, but was returned to layoff status Dec. 17, 2009, ending her employment.
- Plaintiff filed a grievance through AFSCME, which was denied; she appealed the denial within the union process.
- Plaintiff filed a Michigan civil rights charge (and later an EEOC charge) alleging age and disability discrimination under ADEA and ADA.
- The collective bargaining contract contains Article VII, Section 10 (Election of Remedies), restricting processing of grievances beyond Step 2 if statutory remedies are pursued; county allowed Step 2 but halted further processing.
- Plaintiff filed suit on July 28, 2011, asserting retaliation under ADA, ADEA, ELCRA, and PWDCRA, and the court granted partial summary judgment for Plaintiff, holding the election-of-remedies provision is retaliatory per se.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the election-of-remedies provision is per se retaliation under ADA/ADEA. | Plaintiff argues Board of Governors (Seventh Circuit) controls and treats such provisions as per se retaliation. | Defendants argue Richardson/Second Circuit permit a reasonable-defensive-measures rationale; provision could be neutral. | Yes; the provision is retaliatory per se under ADA and ADEA. |
Key Cases Cited
- EEOC v. Bd. of Governors of State Colls. & Univs., 957 F.2d 424 (7th Cir. 1992) (per se retaliation analysis for election-of-remedies provision)
- Richardson v. Comm’n on Human Rights & Opportunities, 532 F.3d 114 (2d Cir. 2008) (not per se; reasonable-defensive-measures rationale used by Second Circuit)
- Board of Governors of State Colleges & Univs. v. Board of Regents, N/A (N/A) (referenced for per se approach to retaliation (Bd. of Governors comparison))
- N.Y.C. Transit Auth. v. N.Y.C. Transit, 97 F.3d 672 (2d Cir. 1996) (reasonable defensive measures; employer avoids duplicative litigation)
- SunDance Rehab. Corp. v. City of Portage, 466 F.3d 490 (6th Cir. 2006) (discusses Board of Governors approach; distinguishable facts)
- Portland State Univ. Chapter of Am. Ass’n of Univ. Professors v. Portland State Univ., 291 P.3d 658 (Or. 2012) (state-law context; reconciliation of Board and Richardson lines)
- Hishon v. King & Spalding, 467 U.S. 69 (1984) (benefits part of employment relation may not be distributed in a discriminatory fashion)
- Trans World Airlines, Inc. v. Thurston, 469 U.S. 111 (1985) (antiretaliation policy sensitivity to protected activity)
- 14 Penn Plaza LLC v. Pyett, 556 U.S. 247 (2009) (arbitration of ADA/ADEA claims via collective bargaining agreement)