MEMORANDUM OPINION AND ORDER
This matter comes before the Court upon Plaintiff Joyce Watford’s motion for
BACKGROUND
This action arises out of Plaintiff Dr. Joyce Watford’s employment as a teacher in the Jefferson County Public Schools system. Watford was hired in 1999 and worked at the Westport Middle School (‘Westport”). In 2009, Watford was transferred to Kennedy Metro Middle School (“Kennedy Metro”). Watford allegedly engaged in unprofessional conduct on several occasions leading to multiple suspensions. On October 13, 2010, Watford was terminated.
Defendant Jefferson County Board of Education. (“School Board”) and Defendant Jefferson County Teachers Association (“Teachers Association”) have entered into a collective bargaining agreement (“CBA”). Article 29 of the CBA establishes a tiered grievance process for employees to report complaints. (Docket # 34-4). An employer must first lodge a complaint with their immediate supervisor. The employee may then appeal to the Superintendent. If the employee is still unsatisfied, then the Teachers Association may initiate arbitration. Under Article 9, an employee who has been terminated may elect to use this arbitration process or “the tribunal process provided for by statute.” (Docket # 34-4). Furthermore, “[i]f the employee opts to pursue a complaint using another agency, the parties agree to hold the grievanсe in abeyance until the agency complaint is resolved.” (Docket # 34-4).
After her termination on October 13, 2010, Watford elected to pursue the grievance process. Her grievance was denied by the school principal and the Superintendent’s designee. The parties arranged for arbitration to be held in July, 2011. (Docket # 36-5).
Watford filed her first Charge of Discrimination
Watford filed her second Charge of Discrimination
Watford’s first Charge of Discrimination was resolved on January 31, 2013, when the EEOC issued a Dismissal and Notice of Rights. (Docket # 37-9). The parties scheduled a three-day arbitration hearing to be held on April 23, 24, and 25, 2013. During the second day of arbitration Wat-ford served the School Board with this lawsuit. (Docket # 38-1). The School Board requested that the arbitrator suspend those proceedings. The School Board responded that Article 9 required the arbitration to be stayed and it was the past practice of the School Board to hold claims in abeyance while they were being decided by another agency to avoid inconsistent rulings. The Tеachers Association, who represented Watford during arbitration, opposed the School Board’s request. The arbitrator found that there was a “common nucleus of fact, raising the possibility of different factual findings by each forum.” (Docket # 34-13). The arbitrator also found the law was unsettled as to whether an employer who suspends arbitration pending another hearing has discriminated against the employee. The arbitrator ultimately decided to hold the arbitration in abeyance pending the resolution of this lawsuit. (Docket # 34-13).
Watford filed her third Charge of Discrimination
Watford now moves for partial summary judgment on her retaliation claims in Count IV and Count V of her amended complaint. Watford also request this Court compel arbitration of her grievance claim and hold these claims in this case in abeyance pending the outcome of that arbitration. The School Board and Teachers Association have filed cross-motions for summary judgment.
STANDARD
Summary judgment is appropriate where “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). “[N]ot every issue of fact or conflicting inference presents a genuine issue of material fact.” Street v. J.C. Bradford & Co.,
DISCUSSION
The primary issue before this Court is whether Defendants took an adverse employment action against Watford. It is unsettled in the Sixth Circuit whether an employer’s stay of arbitration pending litigation pursuant to a collective bargaining agreement constitutes an adverse employment action. The Second and Seventh Circuits have reached conflicting conclusions. The Court will (I) explain why it agrees with the Second Circuit’s approach that suspending arbitration is not an adverse employment action. The Court will then address (II) Watford’s argument that the Sixth Circuit would follow the Seventh Circuit. Finally, the Court will (III) deny Watford’s request that this case be sent to arbitration.
I. The Circuit Split on Defining Adverse Employment Action.
“Title VII’s antiretaliation provision forbids employer actions that ‘discriminate against’ an employee (or job applicant) because he has ‘opposed’ a practice that Title VII forbids or has ‘made a charge, testified, assisted, or participated in’ а Title VII ‘investigation, proceeding, or hearing’ Burlington N. & Santa Fe Ry. Co. v. White,
An “adverse employment action” is “defined as a materially adverse change in the terms and conditions of plaintiffs employment.” (citation and punctuation omitted) Smith v. City of Salem,
An employee has the statutory right to pursue a discrimination claim in federal court. Alexander v. Gardner-Denver Co.,
The parties dispute whether Defendants took an adverse employment action against Watford when they stayed her arbitration pending resolution of her EEOC complaint and this litigation. This issue is unsettled in the Sixth Circuit. The parties cite to cases from the Second and Seventh Circuits which have reached opposing conclusions.
Watford cites to the Seventh Circuit case Board of Governors in support of her position. E.E.O.C. v. Bd. of Governors of State Colleges & Univs.,
Defendants cite to the Second Circuit case of Richardson, which reached the opposite conclusion when presented with the same issue. Richardson v. Comm’n on Human Rights & Opportunities,
This Court agrees with the Second Circuit. An election-of-remedies provision streamlines dispute resolution. It avoids the expense and uncertainty of having the same issue decided in two different proceedings. It puts no restriction on an employee’s freedom to file an EEOC complaint or a lawsuit. “It only requires that the employee make a concrete choice, at a specific time, between filing a [claim with the EEOC] and having the union pursue his or her grievance in arbitration.” Richardson,
This Court questions whether the Seventh Circuit’s approach actually benefits employees, a concern shared in part by the Seventh Circuit. As Board of Governors acknowledged, “the employer had no obligation to provide its employees with a right to grievance procedures at all.” Board of Governors,
Of course, the advantage of the grievance procedure, which could result in binding arbitration, was that a just result could be achieved without literally making every employment dispute a federal case. This procedure would be a much less expensive and probably more efficient method to resolve disputes. ... But while the EEOC has advanced a technically correct reading of § 4(d), my concern is that the EEOC’s approach will eliminate the contractual grievance procedure as a viable option for a Union member to use as an alternative means to resolve a dispute. Without Article 17.2, the Board has little incentive to offer a grievance procedure in lieu of seeking a resolution in some other forum. As it is, the collective bargaining agreement would offer an incentive for both sides to resolve the issue quickly, before statutes of limitations or other time limits expire. If the grievance procedure wasn’t working, the Union member could turn to the courts (or some other form of arbitration), thus overriding the grievance procedure. Now the Union member will be permitted to operate in two forums, and presumably take the best deal. But the Board may see no benefit in doubling its exposure and adding to the costs of its administrative and legal defense. Thus, it could conclude that if court action must be an alternative, it will be the only alternative. It seems to me that this rigid result was not really the goal оf our federal laws against discrimination.” Bd. of Governors, 957 F.2d at 432 (J. Manion, concurring).
This Court agrees "with the Second Circuit that allowing an employer and union to define the scope of the contractual right to arbitration is the prudent approach. The Court also agrees that allowing an employer to take a “reasonable defensive measure,” such as participating in arbitration until the employee files a claim in federal court, does not constitute an adverse action. Richardson,
The facts of this case are somewhat different. Absent a statute of limitations issue Watford controls whether she files a lawsuit which stays the arbitration. In this case, Watford began the arbitration hearing. On the second day of the hearing Watford filed the instant lawsuit, which caused the stay. Perhaps the timing was coincidental. Perhaps Watford felt she would rather pursue her federal lawsuit instead of continuing her arbitration hearing. There certainly is no fault in making those choices. If she has not filed this lawsuit at that time and exhausted the arbitration she still could have filed suit. However, the Court is not without some reservation and believes this to be a close call.
II. Sundance and Other Cases Addressing Adverse Employment Action.
Watford cites to three district court cases from the Sixth Circuit in support of her argument that the Sixth Circuit would follow Board of Governors. As a general matter, a “federal district court is not bound by the decision of another district court.” United States v. Johnson,
The first case, Wedding v. Univ. of Toledo, did adopt the reasoning of Board of Governors.
Two other district court cases have adopted the reasoning of Board of Governors. Brinkley v. Bd. of Comm’rs of Franklin Cty., Ohio,
We do not find the Seventh Circuit’s Board of Governors opinion to be compelling precedent with respect to this case. In Board of Governors, the employer actually took an adverse action against the employee because the employee had pursued the statutorily protected activity of filing a charge with the EEOC. That action clearly constituted retaliation in violation of 29 U.S.C. § 623(d). While the Seventh Circuit addressed what it determined to be the facially retaliatory CBA provision that purported to authorize that action, that policy was before the Seventh Circuit because the employer had implemented it and had engaged in a retaliatory act. Here, SunDance has offered a contrаct, and, on the record before us, has engaged in no further action. Sundance, 466 F.3d at 498 .
Brinkley and Trayling viewed the statement — “[t]hat action clearly constituted retaliation” — as evidence that the Sixth Circuit would endorse Board of Governors reasoning. This Court views the following sentence — “[w]hile the Seventh Circuit addressed what it determined to be the facially retaliatory CBA provision” — as evidence that the Sixth Circuit was merely discussing the Seventh Circuit’s opinion. The Court does not believe the Sixth Circuit made a clear statement that it was endorsing the rationale of Board of Governors. Furthermore, SunDance makes clear that its discussion of Board of Governors is dicta and therefore that discussion is not binding. See Coca-Cola Co. v. Procter & Gamble Co.,
The School Board also argues Brinkley and Trayling are factually distinguishable from this case because both dealt with the termination of arbitration proceedings whereas in this case Watford’s arbitration proceedings were merely suspended. At least one district court from the Seventh Circuit has distinguished Board of Governors on these grounds. U.S. E.E.O.C. v. Chrysler Grp., LLC,
III. Watford’s Request for Arbitration.
If a party requests that a claim be arbitrated, a court must first determine “whether the parties have executed a valid arbitration agreement” and then decide whether the claim “falls within thе scope of that agreement.” Floss v. Ryan’s Family Steak Houses, Inc.,
Artiсle 9 of the CBA states: “The employee may select either the tribunal process provided for by statute or the
In the absence of a contractual right to compel arbitration, Watford must show why this case should be stayed pending resolution of arbitration. Watford argues this Court should nevertheless compel arbitration and stay this case because the in her arbitration — that she terminated without “just cause” — are distinguishable from her retaliation claim in this case. (Docket #41).
The Court disagrees and finds the claims in this case and Watford’s arbitration arise out of the same set of faсts and include the similar claim that Watford was discriminated against. Watford’s arbitration arises out of seven grievances. Each grievance alleges, in part, that the School Board violated Article 5 of the CBA. Article 5 prohibits “discrimination against any employee by reason of race, creed, color, marital status, gender, disability, age, national origin, or whether said employee is a member of the Association.” (Docket # 36-4). Article 5 does not discuss termination for cause. Most grievances also explicitly state Watford was discriminated against in some way. For instance, Watford claimed she “got a 5-day suspension for telling someone to leave me alone after that person had singled me out for abuse which also included arbitrary, unusual, and discriminatory treatment.” (Docket #44-8). Separately, Watford claimed Principal Reid attempted to “scapegoat me, to harass me, and to discriminate against me for his failings and shortcomings.” (Doсket #44-9). Watford filed one grievance in part due to “dual expectations” and “discrimination, harassment, and intimidation.” (Docket # 44-5). The Court is not persuaded by Watford’s argument that the arbitration and this litigation involve different facts or claims. Accordingly, the Court will deny Watford’s request to compel arbitration and stay this case.
CONCLUSION
For the foregoing reasons, Watford’s motion for partial summary judgment on Count TV and Count V (Docket # 34) is DENIED and Defendants’ motions for partial summary judgment (Docket # 37, 38) are GRANTED.
A TELEPHONIC CONFERENCE IS SET ON FEBRUARY 22, 2016 at 11:45 a.m. Eastern (Louisville) Time. The Court shall place the call to counsel.
Notes
. Charge of Discrimination 474-2011-00452
. Charge of Discrimination 470-2012-03096
. Charge of Discrimination 470-2013-03310
. The parties cite to the standard for proving an indirect claim of discrimination under the McDonnell Douglass formula. However, Wat-ford claims the Defendants employed a facially discriminatory policy. A "facially discriminatory employment policy ... is direct evidence of discriminatory intent.” Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir.2000). "It is well settled that if a plaintiff presents direct evidence of discrimination, she need not proceed under the McDonnell Douglas formula.” Christopher v. Stouder Mem’l Hosp.,
. In Liradas, the Supreme Court clarified that its ruling in Gilmer v. Interstate/Johnson Lane Corp.,