Austin v. Owens-Brockway Glass Container, Inc.

hearing Department as a matter of constitutional By minimized this case. proposition that full rests relief addressing only the constitutional postdeprivation cannot be obtained at a hear- district court decision will bearing have no ing.” 424 S.Ct. 900. upon the merits of Kreschollek’s claim of Basin, rejected oper- Thunder the Court continuing entitlement to disability benefits. argument process required ator’s that due Thus, procedural problems presented by district court review because found that pending claim district court should not with, compliance “neither nor continued vio- present an insurmountable barrier to the ex- of, lation the statute will [Thunder jurisdiction. ercise of district court We are prehearing deprivation.” to a serious Basin] confident that the district par- court and the — Basin, at-, Thunder ties can fashion a workable solution should Kresehollek, hand, at 781. on the other the issue arise. Kreschollek’s counsel con- clearly irreparable more at risk of harm due argument ceded at oral point that at some he pretermination hearing. to the lack of a have make a decision as to his forum. Kreschollek’s benefits were terminated on 29, 1992, October and he contends he has III. been unable to return to work due to his For above, the reasons set forth we will disability. App. at 56. Thus he was de- reverse the order of dismissal and remand to prived of all earned income for almost two- the district court proceedings for consistent years and-a-half from the time that his bene- opinion. with this fits were terminated until the ALJ issued decision in March of 1995. inadequacy of the administrative re-

view scheme to harm address the at issue—

here, pretermination of a hearing— lack precisely the sort of situation which we AUSTIN, Linda Plaintiff-Appellant, Compensation Department envisioned in permit jur- a district court to exercise OWENS-BROCKWAY GLASS CON involving isdiction over a claim the Act. See TAINER, INCORPORATED, Compensation Dept., 667 F.2d at 343. Nota- bly, unlike the Mine Act Defendant-Appellee. involved Thunder Basin, Longshore and Harbor Workers’ Equal Employment Opportunity Commis Compensation provide expe- Act does not sion; Equal Employment Advisory dited review benefits determinations. As Council, Amici Curiae. Mathews, Kresehollek “has raised at least physical colorable claim that because of his AUSTIN, Plaintiff-Appellee, Linda dependency upon condition and benefits, an erroneous termination would OWENS-BROCKWAY GLASS CON damage way recompensable him in a TAINER, INCORPORATED, Mathews, through payments.” retroactive Defendant-Appellant. It 901. follows alleged sufficiently Kresehollek has Equal Employment Opportunity Commis irreparable injury serious to lead us to con- sion; Equal Employment Advisory process clude the administrative review Council, Amici Curiae. is insufficient to afford him full relief. 94-1213, Nos. 94-1265. Although presented Kresehollek has United Appeals, States Court of same questions constitutional in the adminis- Fourth proceeding, danger trative Circuit. conflicting duplicative litigation over which the Su- Argued Feb. preme expressed Whitney concern in Decided March National Bank v. Bank New Orleans & Trust and which Compensation factored into our decision in

OPINION

WIDENER, Judge: Circuit Linda Austin filed suit in the United States District Western District of Virginia against Owens-Brockway Glass Inc., Container, alleging violations of Title VII and the Americans with Disabilities Act (Disabilities ADA). Act or The district court granted summary judgment in favor of Ow- ens-Brockway because Miss Austin failed mandatory submit her claims to bargaining agreement. under a collective claiming Miss appeals, Austin that the dis- incorrectly trict court held that she re- was quired to arbitrate her claims. error, Finding only slight no we affirm with modification.

I. district disposed Because the court of Miss Hudson, Dan- Barbara Rubin ARGUED: summary Austin’s on a claims motion for ville, Appellant. for Marie Virginia, Karen judgment, justifiable all inferences of rele Counsel, Moran, Equal of General Office plaintiff. vant facts are drawn favor of the Commission, Employment Opportunity grant summary judgment is reviewed DC,

Washington, for Amicus EEOC. Curiae Liberty Lobby, de novo. Anderson Lucas, Mary Chapman Michael Thomas 242, 255, 106 2505, 2513-14, Hamilton, Vandeventer, Black, & Meredith Miss Austin worked for Norfolk, Martin, Virginia, ON Appellee. for Owens-Brockway approximately years for Jr., Neely, Deputy James R. Gen- BRIEF: injured job until she was Counsel, Reams, Gwendolyn Young As- eral physician light-duty Her released her for Counsel, Black- sociate General Vincent J. Owens-Broekway in August work but wood, Counsel, A. Assistant General Samuel light-duty employment informed her that no Marcosson, Counsel, Equal Office of General Instead, put was available. Miss Austin was Commission, Employment Opportunity provided on medical leave and with workers’ DC, Washington, for Amicus Curiae EEOC. compensation While Austin benefits. Miss BLACK, O’Donnell, Vandeventer, Robert L. leave, Owens-Brockway was on eliminated Martin, Norfolk, Virginia, & Meredith job equipment Miss classification of Austin’s Douglas McDowell, Eliza- Appellee. Ann S. eleaner/oiler-greaser. Miss June Reesman, Williams, beth MeGuiness & McCauley, Robert Di -Austin met with DC, Advisory Washington, for Amicus Curiae rector Relations at of Industrial Owens Council. Brockway. She learned Owens-Brock-

way employment her had terminated reassigned light- that she not be HALL, WIDENER and Before Circuit duty work. CHAPMAN, Judges, and Senior Circuit Judge. against Miss filed suit Owens- Austin

Brockway alleged on October She Owens-Brockway violated the Americans Affirmed as modified and remanded opinion. § et published Judge wrote with Disabilities U.S.C. WIDENER VII, seq., majority opinion, Judge seq., 42 U.S.C. 2000e et which Senior Title joined. light-duty Judge by refusing HALL to offer her work and CHAPMAN wrote opinion. a male dissenting terminating her while II. employee in her only other employee, classification, reassigned was job eliminated A. plant. position at to another position Austin first takes the Miss to dismiss Owens-Brockway filed a motion standing not have that she did jurisdiction. The subject matter for lack bargaining agreement to arbitrate Austin failed to argued that Miss company employer for with her had not the EEOC and claim with file her disability-based claims of discrimination. letter, prerequi- both right to sue obtained standing, goes having no argument Act and Title VII filing Disabilities sites to comply contract. She could not with the she §§ 2000e- in court. See position had been takes the that she now 12117(a). Further, Owens-Brockway 5(b), and, discharged employee, discharged as a that Miss Austin’s position took the standing request or demand had no she mandatory under arbitration subject to were is no merit of such claims. There covering agreement bargaining a collective First, the district position, however. to this Owens-Brockway. Be- with alleged discrimination found that court a claim under failed to file Austin cause Miss 1, complains occurred on June plaintiff of procedure, Owens- grievance-arbitration 1993, Miss the date the defendant terminated precluded Broekway that she was maintained that on employment. It also found Austin’s court. in federal filing 31, from suit 1, April 1993-March June Shop was effect. 1996 Union Contract sup- Owens-Brockway offered affidavits exception findings. takes no to these Plaintiff dismiss, the district so port of its motion may rights plaintiff contractual So summary as one for the motion court treated arose on account of that discrimination had 12(b). The district judgment. Fed.R.Civ.P. bargaining during term of the collective significant factual that a court found plaintiff could as agreement question Austin took actions Miss as to what existed Second, that contract. sert her under EEOC, complaint with to file her plaintiff if had a terminated em even been therefore, deciding question, de- without any rights could have asserted ployee, she summary judgment for failure grant clined to bargaining the collective she had under right to sue letter.1 or obtain to file a claim agreement after its termination. Nolde even 358, Bakery Inc. v. Local No. & Con Bros. summary judg- granted The district court Union, 243, fectionery Workers U.S. Owens-Brockway based on ment in favor 1067, (1977), affirmed 51 L.Ed.2d 300 process her claims failure to Miss Austin’s employee’s employer that an our decision procedure in grievance-arbitration under [collective duties under the bar “arbitration agreement. bargaining The the collective its termination gaining] contract survived agreement subjected court held arising by respect to claims reason with mandatory claims to arbitra- Austin’s Miss bargaining agreement.” the collective Thus, held that under Gilmer the court tion. 248, 97 S.Ct. at 1070. Nolde Bros. U.S. Corp., Lane 500 U.S. v. Interstate/Johnson pay that a “Union’s claim for severance held 114 L.Ed.2d 26 111 S.Ct. bargaining expired ... [an] under her claim to she did not submit because agreement ... to resolution [was] under the collective provision that con the arbitration bringing from at 1074. agreement, precluded she was 97 S.Ct. tract.” us is differ- not think the case before We do the lawsuit. claim to the decide the to submit the to arbitrate future failure 1. Since a valid cross-ap- procedure. jurisdiction, grievance-arbitration disputes effectively ousts a court of Owens-Brockway, Browning, peal with re- No. Big Co. v. 137 Va. see Vein Pocahontas (1923); filing Pleading spect with EEOC and obtain- a claim Burks 120 S.E. 247 Practice, 1952), (4th ing without to sue letter is dismissed each of the two ed. opinion express on the essentially plea prejudice, and we no to the defenses here is asserted question. jurisdiction. only decide one of them We need Bros, any significant gaining agreement, ent from Nolde rely start with and degree. “well-recognized policy of federal favoring labor law arbitration of labor dis Accordingly, we are of and decide putes.” Adkins v. Corp., Times-World standing that Miss Austin had to assert her (4th Cir.1985), F.2d denied, cert. bargaining agree- claims under the collective U.S. 106 S.Ct. 88 L.Ed.2d 930 ment. (1986). In the Trilogy, Steelworkers the Su B. preme Court established that arbitration is disputes. favored labor e.g., See United argument next of Miss Austin is Steelworkers Enterprise America v. Wheel that arbitration of her Title VII and disabili Corp., & Car ty permissive claims is rather than mandato (1960); United Steelworkers ry. She relies on Section Article 32 of the America Co., v. Warrior Navigation & bargaining agreement which states Gulf disputes pursuant that “[a]ll not settled (1960); United Steelworkers America procedures set forth Article Griev American Procedures, Manufacturing ance referred to arbitra 4 L.Ed.2d position tion.” She takes that the use of rely need not “may” just the word stated makes arbitra the Federal Arbitration Act (FAA), permissive obligatory. tion rather than seq., et this case however, because, opinion, circuit, are of purpose in this the FAA appli is not “may” in the word this section of disputes the collec cable to labor arising from collective bargaining agreement give is to ag an bargaining agreements. Sugar Domino grieved party the choice between arbitration Corp. Sugar Workers Local Union claim, “may” abandonment of his (4th he 1064, 1067 Cir.1993). F.3d either arbitrate or abandon claim. The

interpretation urged by Miss Austin would B. render provision meaningless the arbitration practical for all purposes. parties If the The bargaining agreement such an intended for arbitration specifically provides that claims of permissive, to be there would be no reason to discrimination are include provision Article the arbitration grievance procedure: contract, parties for existing to an dispute always voluntarily could submit it to ARTICLE 38 (“either arbitration. Almost identical words arbitration”) party may request in a fact Employment Fair Practice and indistinguishable situation from that at hand Equal Opportunities has received the place same construction we upon Eighth Circuit in Bonnot v. 1. Company The and the Union will Unions, Congress Independent Local No. comply with all preventing laws discrimi- (8th Cir.1964), 331 F.2d which against any nation employee because of Line, followed Deaton Truck Inc. v. Local race, color, sex, religion, origin, national (5th Cir.1962). Union 314 F.2d age, handicap, or veteran status. See also American Italian Pasta Co. v. Aus 2. This Contract shall be administered (8th Cir.1990). tin 914 F.2d applicable accordance provi- with the Thus, provi- we decide that the arbitration sions of the Americans with Disabilities bargaining agreement sions the collective taking Act. Before action relative to this obligatory permissive. and not Section, Company will meet with the Union, Local parties and both will have

III. opportunity sufficient express their opinions regarding anticipated action. A. In deciding Any disputes whether to enforce the 3. under this Article as provision arbitration in this collective bar- with all other Articles of this Contract proce- “inappropriate forum” for grievance arbitration is subject to shall be statutory rights. of Title VII the resolution dure. Alexander, 415 U.S. at 1023- contractually agreed Therefore, Austin Miss discrimination to submit support as a Emphasizing its of arbitration procedure. grievance resolution, the Gilmer method pro- specifically grievance procedure Court stated: binding arbitration. vides adequacy] of arbitration on [A]ttacks [the suspicion of arbitration “res[t] ARTICLE weakening protections af- method of Arbitration law to would-be forded in the substantive pursuant such, disputes they All not settled complainants,” and as are “far forth in Article procedure strong set our en- step out with current Procedure, may be referred to favoring Grievance dorsement of the federal statutes given compa- to the resolving a notice disputes.” this method days ny by the other within or the union griev- Step 4 of the after conclusion (third original) (quoting alteration Rodri procedure____ ance guez Quijos de Ex Shearson/American press, (1989)). shall The arbitrator’s decision 5..... rejected panels arguments parties. binding both final be biased; discovery limited above, just demonstrated As plaintiff prove attempting hinder a dis agreement specifically crimination; lack a written binding arbitration on final and provides for public would result decreased awareness complaint here: Ti- of asserted account each employment policies discriminatory of claim, Disabili- and the tle VII review; that em appellate ineffective part And Act for claim. ties bargain unequal ployers and have II.B, that such arbitration is decided Gilmer, 30-33, ing power. 500 at 111 U.S. discretionary. obligatory, not pre at 1654-56. The Court refused S.Ct. biased, that sume arbitrators would be Gil C. mer, 30, 1654; 111 500 at at ex U.S. S.Ct. Gilmer, In Court made choosing plained that arbitration means statutory agreements clear “trad[ing] procedures opportunity Gilmer, 500 U.S. at claims are enforceable. simplici for review the courtroom for the 26, 111 at 1652. The Gilmer S.Ct. arbitration,” ty, informality, expedition statutory of a recognized that arbitration Gilmer, 31, at 111 at 1655 500 U.S. S.Ct. giving up any equal to claim is not 473 (quoting U.S. at 105 Mitsubishi statute, simply another forum in it is 3354); judicial at review S.Ct. noted dispute: which to resolve awards, limited, although is ade compliance statutory [B]y agreeing quate to arbitrate to ensure with Gilmer, claim, forgo requirements, not the substan- at 32 n. party does U.S. statute; 4; by only rights afforded 1655 n. refused to decide that tive at arbitral, arbitration, their resolution in an submits to lack class actions should bar judicial, forum. because conciliation should rather than individual barred; decided that the claim of un Gilmer, S.Ct. 500 U.S. equal bargaining power is one that should be Corp. v. (quoting Motors Soler Mitsubishi Gilmer, cases, decided individual Chrysler-Plymouth, 32-33, at 1655-56. (1985)). 87 L.Ed.2d parties rejects principal provides that once concern Gilmer further Gilmer thus have contracted to arbitrate a mat- Alexander v. Gardner-Denver ter, agree- parties be held to that should 39 L.Ed.2d Congress prohibit ment intended to unless Congressional we look for a intent to preclude that matter: particular arbitration of the statuto- ry Gilmer, rights. 500 U.S. at arbitrate, “[H]aving bargain made the at 1652. We do not find that intent in the party should be held to it unless Con- legislative fact, history. legislative gress itself has evinced an intention to history for both the Disabilities Act and the judicial a waiver of remedies for Rights Civil Act contains statements that statutory rights at issue.” ... If such opposite demonstrate the intent: exists, an intention it will be discoverable [statute], legislative the text of the This section encourages its the use of alterna- history, resolution, or an “inherent tive dispute conflict” between means of where appropriate arbitration and the underlying [statute’s] and to the extent authorized law____ purposes. by This adopted amendment was to encour- 500 U.S. at 111 S.Ct. at 1652 age alternative dispute means of resolution Mitsubishi, (quoting already by authorized law. 3354-55). S.Ct. at 755,101st H.R.Conf.Rep. Cong., No. 2d Sess. language of the statutes could not be (1990) (Civil Rights Act); H.R.Rep. No. showing more clear in Congressional fa- 485(111), Cong., 101st 2d reprinted Sess. vor towards Rights arbitration. The Civil 499(ADA). in 1990 U.S.C.C.A.N. VII, amending Act of Title states: Granted, legislative history appropriate Where and to the extent au- the statutes is not as clear law, by thorized the statutes the use of alternative Congress themselves that resolution, intended to dispute means of allow including ... arbitration of arbitration, and one of encouraged to resolve dis- reports conference does indicate putes that arbitra arising provisions under the Acts or permissible voluntary. when Federal law amended this title. 596,101st H.R.Conf.Rep. Cong., No. 2d Sess. Pub.L. No. 105 Stat. (1990), reprinted in 1990 U.S.C.C.A.N. 1081. The Americans with Disabilities Act (“It 565, 598 is the intent of the conferees contains language: identical that the use of these alternative reso appropriate Where and to the extent au- procedures lution completely voluntary.”). law, thorized the use of alternative circuit, In this reports conference are the dispute resolution, means of including ... persuasive legislative intent, most evidence of arbitration, encouraged is to resolve dis- Lukhard, after the statute itself. Davis v. putes arising chapter. under this (4th 973, Cir.), denied, 788 F.2d cert. § meaning 12212. The of this 868, language plain Congress inis favor of — (1986). Furthermore, report a committee arbitration. “voluntary states that mediation and arbitra study A legislative of the history of preferable the tion are far prolonged litigation to Rights Civil Act and the Disabilities Act resolving employment also for discrimination Congressional does not reveal hostility 40(11), to- H.R.Rep. claims.” No. Cong., 102d arbitration, wards Congress rather has en- reprinted 1st Sess. in 1991 U.S.C.C.A.N. couraged H.R.Rep. arbitration. See No. report 764. Another committee contains 40(11), Cong., 102d reprinted 1st Sess. in a statement about what that committee “be 694, 764; 1991 U.S.C.C.A.N. H.R.Rep. is, however, No. lieves” the effect of the statute 40(1), Cong., 102d 1st reprinted Sess. that dispositive committee’s belief is not 549, 635; 1991 U.S.C.C.A.N. H.R.Conf.Rep. Congress what intended when it enacted the Cong., (1990); No. 40(1), 101st 2d Sess. H.R.Rep. Cong., statute. No. 102d 1st 596,101st H.R.Conf.Rep. Cong., No. 2d reprinted Sess. Sess. in 1991 U.S.C.C.A.N. (1990), (“[T]he reprinted in 1990 U.S.C.C.A.N. any Committee believes that 565, 598; 485(111), H.R.Rep. Cong., No. 101st disputed to submit issues to arbi 2d reprinted tration, Sess. ... does not the affected U.S.C.C.A.N. provides 499-500. person seeking Gilmer from relief under the enforce- policies the tion be inconsistent with Title VII. This view provisions of ment ”). Title VII. behind the Disabilities Act and The Alexander. ... with ... consistent history legislative replied: Court the not decide what need in our case terms because in absolute contends, means ADEA is the de- As Gilmer voluntary agreements to arbi- that griev- it means signed only to address individual To de- claims are allowed. trate ances, important to also further social but otherwise, to hold we would cide policies. any not perceive We do inherent no at all that Alexan- has effect Gilmer inconsistency policies, those how- between claims still law der is ever, enforcing agreements to arbi- required arbitration. cannot be It is age claims. true trate discrimination Congress intended to return not think doWe specific disputes that arbitration focuses on Austin’s burden under the old law. Miss to parties between the involved. same Congress intended show Gilmer said, however, judicial resolution can be preclude arbitration claims. Both these resolution if that burden. Even has failed meet she can mechanisms nevertheless also further history legislative are provisions of the purposes. social The Sherman broader statute, must contrary the statute Exchange Act of the Securities Lukhard, 788 Davis v. F.2d at 981. prevail. RICO, Act of 1933 all Securities event, reasoning of Especially public designed important are to advance Scalia, concurring, Thompson v. Justice but, above, policies, as claims noted under 191-192, 108 Thompson, 484 U.S. appropriate those statutes arbitra- 513, 520-21, 522, 98 L.Ed.2d 512 long litigant prospective tion. “[S]o reports, apply: floor “Committee should effectively may her] or statu- vindicate[his colloquies between Con- speeches, and even forum, tory of action in the arbitral cause [only page omitted] ... references gressmen, will to serve both its statute continue for bicameral vote are frail substitutes remedial and deterrent function.” presentment of a law and its the text at President.” (alterations (internal original) citations omitted) Mitsubishi, (quoting Moreover, inherent conflict be- there is no 3359). clearly The Court underlying pur- arbitration and the tween age has removed doubt that discrimina Act or Title VII. poses of the Disabilities arbitrated. We are of a claim Although Gilmer involved under reasoning that the same is valid for Employment Act of Age Discrimination in discrimination claims. seq., principles § et 29 U.S.C. Age Discrimination Act are the behind D. Act and as those behind the Disabilities same Every Ap- of the case decided in the Courts Title VII. statement peal compulsory 118 of response to Gilmer’s claim amendments Rights anticipato- Act inconsistent with the Civil has enforced arbitration would be ry agreements involving Act holds to claims purposes Age of the Discrimination arbitrate rights.2 any compulsory statutory federal cases arose true for claim that arbitra- Three all, Tran, v. were not has 2. The dissent Tran 54 F.3d If that the Court stated in relies (2d Cir.1995), in may 115 for a conflict the circuits. statutory "... all claims not Gilmer that be misplaced, Tran was think reliance is for 26, appropriate U.S. for arbitration...." 500 wage a and hour has few to case and similarities 111 S.Ct. at 1652. Barrentine v. Arkansas- hand, the case at as we will now discuss. 728, Inc., Freight System, 101 Best S.Ct. first, difference, patent and is that the a 1437, (1981), wage L.Ed.2d 641 67 horn- (the law, wage seq. § and hour 29 U.S.C. et provision involved an ease which arbitration in Act) any Fair Labor does not Standards contain bargaining agreement, the Court de- collective provision encouraging arbitration as does Title suit, filing require prior to clined to arbitration (§ amendment), VII 118 of and the the 1991 principally ground on the it had held 12212), (42 § Disabilities Act each of granted prece- “congressionally FLSA take encouraged which states that “arbitration conflicting provisions in a dence over disputes arising respective resolve under” the compensation arrangement,” 450 statutes.

883 disputes. Bender, clauses em context of arbitration 971 in the employee out of F.2d at growing contracts securities 699. ployment When filed a applications. Bender v. Ed court, AG. sexual harassment registration suit federal (11th Sons, Inc., employer & stay 698 wards pending 971 F.2d Cir. moved to the case Inc., Reynolds, 1992); Willis v. Dean Witter arbitration Federal under Arbitration Bender, (6th Act, Cir.1991); seq. v. Dean 1 et § F.2d 305 9 U.S.C. 971 948 F.2d at Alford (5th Reynolds, found, F.2d 229 Witter light 939 699. Eleventh Circuit Gilmer, Cir.1991). A fourth ease arose can federal Title VII claims be compulsory clause in an of an arbitration ordi arbitration and context remanded the Mago v. Shear nary employment ease with stay contract. orders that the district court Hutton, Inc., (9th Lehman son proceedings pending 956 F.2d 932 federal court the em- Cir.1992). cases also ployee’s And two state arose arbitration of her Title VII claim. Bender, employ clauses in 971 the context F.2d at growing reg of securities ment contracts out Reynolds, v. Willis Dean Witter Inc. also Communica applications. istration Benefits an employee agreed involved who to arbi- (D.C. Corp. Klieforth, v. A.2d 642 1299 employment disputes trate signed when she Kidder, Peabody 1994); Fletcher & 81 Willis, registration a securities form. 948 601 619 N.E.2d N.Y.2d N.Y.S.2d employee F.2d at 306. When the filed state — denied, (1993), U.S.-, cert. claims sexual harassment and dis- 554, 126 L.Ed.2d 455 court, Kentucky crimination in a employ- Sons, & Bender AG. Edwards Inc. in- er removed the federal ease to court based Willis, who, application employee diversity jurisdiction. volved 948 F.2d at broker, registration agreed for as a stock 306. The then amended her com- quite U.S. 101 S.Ct. at followed different whether issue arbitration of previous respect. precluded subsequent four of its in that decisions contract-based claims judicial Similarly, statutory U.S. at 101 S.Ct. at as resolution of claims. Since Branch, agreed the dissent relies on v. West McDonald there had not to arbi- claims, statutory 80 L.Ed.2d trate their and the labor arbi- Bradshaw, (1984), - U.S. -, and Livadas v. trators were not authorized to resolve such 129 L.Ed.2d note in those cases under- standably that both McDonald are cases subsequent and Liradas under was held not to Second, § 42 U.S.C. McDonald reasoned actions. because the arbi- proceeding provide that "an arbitration cannot tration in those cases occurred in the context adequate judicial agreement, collective-bargaining trial.” of a substitution represented by U.S. at at 1804. Livadas's claimants there were their un- course, reasoning "Congress, proceedings. impor- was that has ions in the arbitration An given any no more intent to tant indication of fore concern therefore was the tension be- brought representation actions like close Livadas's than sort tween collective company rights, present the cab applicable [in the Golden State Transit concern not Corp Angeles, Finally, v. Los case. were those cases not decided — (1989) FAA, which, above, cases].” U.S. at discussed -, policy favoring 114 S.Ct. at 2084. reflects a "liberal federal arbi- depends agreements.” Tran on Barrentine for its decision tration Gilmer, employee, subject bargain- (quot- that an a collective 500 U.S. at 111 S.Ct. at 1657 Mitsubishi, lines, ing agreement procedure, ing with an arbitration in the last two case, required wage 3353). to arbitrate and hour Our S.Ct. at like prior filing enforceability suit under the Fair Labor Stan- involves the issue of the of an seq. respect dards 29 U.S.C. et With to arbitrate claims. This claims, however, bargain- case to discrimination arises in the context of a collective distinguished ing agreement in Gilmer Barrentine itself so there concern for stating misplaced” representation that "reliance ... "on Alex- tension between III.B, progeny, statutory rights. er, part ander and its ... and in Barrentine Mc- As we find howev- proposition party voluntary agree- that Donald Miss Austin is a to agreed “preclude employment explicitly arbitration of discrimina- ment which has to the arbitra- Gilmer, statutory complaints. claims.” at tion of her That should be III.A, regard Finally, part at 1656. Gilmer with to the enforced. continued as noted al- case, though rely line the Alexander of cases: we do not FAA in this First, rely policy those did involve the issue we do labor law cases not on the federal en- enforceability couraging disputes agreement the to of an arbitrate arbitration of labor as ex- Rather, statutory they pressed Trilogy. claims. involved the in the Steelworkers 884 preclude Congress to arbitration under Title VII. intended claim to include

plaint claims and enforced the arbitration Title VII Willis, at 306. The Sixth Circuit F.2d Gilmer, Court, agreement. F.2d Mago, at 935. Supreme that the noted clause the same arbitration enforceable held Appeals Court of The District of Columbia Willis, 948 F.2d at 307. case. at issue in that anticipatory agreement, also has enforced an rejection of the Gilmer’s The court discussed application, to ar registration in a securities employment that dis- principle Alexander employment disputes. Com bitrate Benefits not be arbitrated could crimination claims Corp. Klieforth, A.2d 1299 munication support of arbitration as and Gilmer’s (D.C.1994). gender employee filed a The disputes for resolution forum alternative Superior prior suit in to discrimination Willis, rights. F.2d involving decision, Supreme and six the Court’s Gilmer the court concluded that The at 308-10. employ decided the weeks after Gilmer was subject claim was employee’s discrimination Klieforth, compel er to arbitration. moved Willis, to arbitrate. agreement to her Although employee’s 642 A.2d at 1300. the at 312. F.2d the District of Columbia’s claim arose under Act, Rights explained court that Reynolds, was Human the Witter v. Dean Alford rights employee usually it looked to federal civil cases in which an sued yet case another guidance interpreting the Human employer alleged and her stock broker Klieforth, Act. 642 A.2d at 1301-02. Alford, Rights 939 F.2d at 229. Title VII. violation of favorably that Gilmer held that an decided to Al- The court noted first The case was courts, age agreement to discrimination the arbitrate lower but the ford every be and that fed judgment of the Fifth claims could enforced Court vacated issue appeals for consider- eral court decide the has remanded the ease Circuit and discrimi Alford, 939 F.2d at extended Gilmer to cover Title VII light of Gilmer. ation Klieforth, claims. 642 A.2d at 1302 compared Title VII nation 229. Fifth Circuit Bender, Willis, Alford). (citing Mago, Age which Discrimination Gilmer, recognized precedent decided conclud- The court federal Supreme Court employment discrimination the civil statutes were “holds that claims ed that because similar, employer could arbi- can be to arbitration if the under Title VII Age employee agreed to dis just under the Discrimi- arbitrate trated as claims Alford, putes Klieforth, of that nature.” 642 A.2d at be arbitrated. nation Act could court Accordingly, court noted Gilmer’s re- 1303. found at F.2d 230. agreement was jection principle that arbi- enforceable. of the Alexander Alford, Klieforth, 939 F.2d at 642 A.2d at 1304.3 tration unfavored. was Appeals The Court of of New York has Hutton, enforceability agreements Inc. Mago Lehman addressed v. Shearson who, again employee employ- in her involved an agreed employ- growing out to arbitrate context of contracts application, ment Mago, registration applications, F.2d ment at 933-34. securities disputes. agreements a sexual harass- held that the were enforceable. employee filed When the Kidder, Peabody, against gender discrimination suit Fletcher v. N.Y.2d ment and stay 1005- employer moved to 601 N.Y.S.2d 619 N.E.2d employer, cases, compulsory arbitration. Fletcher consolidated two pending the case claim Mago, F.2d 934. The Ninth Circuit one involved race discrimination did not meet other involved a discrimination concluded that Fletcher, proving under Gilmer of claim. 601 N.Y.S.2d her burden necessary also found that amend ment not to consider 3. The court Rights history. of 1964 not legislative Klieforth, the Civil Act did ments to 642 A.2d statute's Klieforth, modify overrule Gilmer 642 A.2d or legislative history as a at 1305. Gilmer names agree we the court’s statement 1304. While with Congressional place intent to look discover "expressly on its encour face statute claims. arbitration of age[s]” litigation, an alternative with in entire the state- 158(d). agreed ployment. § N.E.2d at 1000. The had Through the employment disputes they to arbitrate when bargaining process, unions signed registration applications securities right waive the strike and other respective employee their firms. One filed a protected under the National Labor Rela- race claim and discrimination the other em tions 29 U.S.C. seq. Metropoli- 151 et claim, ployee gender filed a discrimination NLRB, tan Edison v. Co. 460 U.S. employer compel and each moved to arbitra 1467, 1475-76, 75 L.Ed.2d 387 respective agreements. tion under Supreme Court finds such waiv- Fletcher, 601 N.Y.S.2d 619 N.E.2d at ers “valid they because premise rest on the light 1000. In the court overruled representation.” of fair Metropolitan Edi- prior a anticipatory decision that held that son, (cita- 460 U.S. at 103 S.Ct. at 1476 agreements employment to arbitrate discrim omitted). tions There is no reason to distin- ination claims were not enforceable. Fletch guish a bargaining between union away the er, 601 N.Y.S.2d 619 N.E.2d at 1003. right to strike and a union Finding comparable Title VII to the state right to right arbitrate. The to arbitrate is a decided, law under which the case was to be term or condition of employment, and as analyzed legislative history the court such, may bargain the union right. this Congressional Title VII to find evidence of This has been the law least since Textile prohibit anticipatory agreements intent to Mills, Workers Lincoln 353 U.S. statutory disputes. The court (1957): “Plainly the found no evidence of such intent. agreement grievance to arbitrate disputes is Fletcher, 601 N.Y.S.2d 619 N.E.2d at quid pro quo agreement for an not to 1003. The court recogni discussed Gilmer’s Mills, strike.” Lincoln tion of arbitration as a favorable method of S.Ct. at 917. dispute resolution and stated that after Gil mer, question Congress, is “whether F. creating statutory remedy, intended that statutorily arbitration of the established Finally, rule of the Fletcher, claim would be foreclosed.” Court and this circuit employee is that an N.Y.S.2d 619 N.E.2d at 1004. grievance procedure must follow the estab only difference between these six lished bargaining agreement the collective cases and this case is that this case arises prior filing Republic suit in federal court. the context bargaining agree- Maddox, Corp. Steel 379 U.S. Bender, Willis, Alford, Klieforth, ment. and (1965); 13 L.Ed.2d 580 Ad employment Fletcher arose in the context of Corp., kins v. Times-World 771 F.2d growing contracts registra- out of securities (4th Cir.1985), denied, cert. applications, Mago also arose (1986). Thus, employment context of an contract. In all of an employer cannot sue without cases, however, including case going through first grievance procedure, hand, employee attempting to sue had and this is what attempting Miss Austin is agreement made an employment to arbitrate do. any question We need not decide disputes. Whether the arises under (and good union faith in this case none has employment contract of growing out of suggested), been because Miss Austin must registration application, securities simple pursue grievance her claim proce under the contract, bargain- or a collective dure. ing agreement, agreement yet has been dispute. made to arbitrate long So party voluntary Miss Austin is a to a valid, agreement voluntary, it is agreement to submit claims to ar we are of it should be enforced. bargaining agree bitration. The collective specifically ment lists E. discrimination as claims that are A union duty voluntary has the arbitration. This bargain for the terms and conditions of em- consistent with the text of Title VII may prospectively not waive a mem- intent behind union legislative the

Disabilities judicial choose a statutes, right of individual to purposes those ber’s and the those for a claim. Congress did not in- forum Finding that statutes. of claims under to

tend I. Act, we the hold Disabilities Title VII provision in this collec- that the Co., 415 In Alexander v. Gardner-Denver agreement is enforceable. bargaining tive (1974), per-

a unanimous Court held that a notwithstanding may sue Title VII son under IV. claims to he has submitted his arbitra- opinion as to whether or express no We bargaining agreement tion under or may be available now not arbitration conclusion, reaching lost. In this question That is not before result thereof. employee’s stated individual that an us. right independent completely of is ' dispos- final order have examined may right contractual he have under a court and district are ing the case of bargaining agreement, the in- disposition not the to whether or not clear as rights subject employees dividual prejudice to the merits Miss without was by their union: to waiver have affirmed an claim. Since we Austin’s arbitration, submitting grievance his could not hear the adjudication that the court employee his an seeks to vindicate contrac- arbitration, agreed-upon same because right collective-bargaining tual under a preju- without the case should be dismissal of contrast, filing agreement. By a lawsuit of the claim asserted. the merits dice to VII, employee Title asserts inde- has abandoned or not Miss Austin Whether pendent statutory rights by accorded Con- it unenforce- or otherwise rendered claim distinctly separate gress. The nature of litigate choosing attempt able statutory rights these contractual and ques- than arbitrate it is also rather same merely both not vitiated because were vio- express opinion. no which lated as result of the same occurrence. remand, inconsistency certainly And the district court will amend no results On dismissing rights permitting case to insure it from to be enforced both its order respectively appropriate the merits their forums. expresses no on claim, or not the same or whether arbitration, may or whether or not now ... [W]e think it clear there can be

be so asserted. prospective employee’s no of an waiver judgment true, course, district court ac- rights under Title It is VII. cordingly a union waive certain rights activity, related to collective such as AS AND THE AFFIRMED MODIFIED strike, right to [cites omitted] These REMANDED. IS CASE rights are on conferred collec- tively processes to foster the HALL, dissenting: Judge, Circuit K.K. properly may be exercised or relin- dissent. respectfully I quished collective-bargain- the union as inventory ing agent to of eases that follow the obtain economic benefits for After its VII, union Title holding v. Inter Lane members. the other of Gilmer state/Johnson hand, plainly ground; stands on different Corp., 500 U.S. concludes, majority majoritarian processes, it concerns not but equal these ... only difference between individual’s “[t]he opportunities. case is this case arises in Title VII’s strictures are and this cases congressional bargaining agree represent of a collective absolute the context majori agree. at 885. I command that each be free from Supra ment.” however, discriminatory ty only practices. necessity, Of recognize, fails part A can form no of the makes all labor conferred difference the difference. Gilmer, collective-bargaining process Finally, waiver since ent case.” unlike the labor rights cases, paramount of would defeat the these arose under the Federal Arbitration VIL In congressional purpose behind Title Act. 500 111 U.S. S.Ct. 1656-57. circumstances, employee’s rights an these decision, recent more unanimous susceptible pro- of under Title VII are not vitality Court reiterated the of Gardner- spective waiver. Denver, albeit in dicta: In holding that agreement an to arbi- think, therefore, pol- that the federal trate Age in Employ- Discrimination icy favoring disputes labor ment Act claim is enforceable under the policy against and the federal discriminato- Federal empha- Arbitration Gilmer ry employment practices can be ac- best sized its consistency basic with our unani- by permitting commodated mous [Gardner-Denver decision ]. fully pursue remedy both his under the grievance-arbitration clause a collective- — Bradshaw, Livadas v. bargaining agreement and of ac- his cause -,-n. 21, 114 2068, 21, 129 S.Ct. 2080 n. L.Ed.2d 93 court under Title VII. The federal (1994). employee’s consider de should claim recognized Several courts federal novo. Gardner-Denver, rather than contin 49-52, 59-60, 94 U.S. at S.Ct. at govern ues the context of collective Thus, Gardner-Denver, Tran, bargaining agreements. Tran v. purported clause which a union to waive (2nd 115, 117, 118 Cir.1995); F.3d Humphrey employees’ pursue Title VII claims Federations, v. Council Jewish clearly in court would be unenforceable. F.Supp. (S.D.N.Y.1995); 709-710 Jack closely Gardner-Denver was to in adhered Quanex v. Corp., son F.Supp. Sys Freight Barrentine Arkansas-Best (E.D.Mich.1995); 1010-1011 Randolph v. tem, Inc., Industries, Cooper F.Supp. 518, 520-522 City L.Ed.2d 641 and McDonald v. (W.D.Pa.1994); Iron, Inc., Block v. Art 284, 104 West Branch f F.Supp. (N.D.Ind.1994); 384-387 Gri Keystone Steel & Wire fith F.Supp. 802, (C.D.Ill.1994); Claps v. II. Sales, Inc., Molitemo 819 F.Supp. Stone Gilmer did overrule this line of author- (D.Conn.1993). 145-147 The case first above ity. so, Court has said twice. listed is a decision of Court of Appeals all, itself, First Gilmer Circuit; consequently, Second agreement enforced an to arbitrate contained majority’s holding split among will create (not collective) in an individual contract be- the circuits. tween employer. a stockbroker and his Writing majority, seven-member Jus- Gardner-Denver the law. Austin tice distinguish was careful pursue remedy, White Gard- her contractual Though language remedy, ner-Denver. he eschewed or judgment both. The of the dis- judicial expressed Gardner-Denver trict court should reversed. arbitration, holding mistrust of he left its explained

intact. He that the collective bar- gaining agreements in Gardner-Denver progeny its did not contain the claims. Second, here, importance central be-

cause labor arbitrations involve contracts ne- gotiated unions, important “[a]n concern therefore was the tension between collective

representation and individual

rights, applicable pres- a concern not

Case Details

Case Name: Austin v. Owens-Brockway Glass Container, Inc.

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Mar 12, 1996

Citation: 78 F.3d 875

Docket Number: 94-1213, 94-1265

Court Abbreviation: 4th Cir.