Commission on Human Rights and Opportunities

Benjamin v. Mediplex of Greater Hartford, Ruling on Motion to Dismiss

Benjamin v. Mediplex of Greater Hartford, Ruling on Motion to Dismiss

CHRO No. 9910193

Commission on Human Rights and Opportunities, ex rel. Uel Benjamin, Complainant 
v.
Mediplex of Greater Hartford, Respondent

September 8, 2000

RULING ON MOTION TO DISMISS

The complainant brings her complaint of discriminatory discharge on the basis of national origin under Title VII of the Civil Rights Act of 1964, as amended ("Title VII"), 42 U.S.C. 2000e et seq., and General Statutes §§46a-58(a) and 46a-60(a)(1).

On July 28, 2000, the respondent filed a motion to dismiss and accompanying memorandum of law. The respondent notes that when the complainant was terminated, she filed a grievance and ultimately went to arbitration under the applicable collective bargaining agreement. The arbitrator found that the respondent had just cause for the termination; this arbitration decision, asserts the respondent, bars the present action by virtue of the doctrines of res judicata and collateral estoppel.

On August 28, 2000, the commission and the complainant filed memoranda of law opposing the motion to dismiss.

A motion to dismiss is an appropriate means to challenge a tribunal’s jurisdiction to hear an action. Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184 (1996); Upson v. State, 190 Conn. 622, 624 (1983). In reviewing a motion to dismiss, the tribunal must construe facts alleged or implied in the complaint in a light most favorable to the non-moving party. New England Savings Bank v. Bedford Realty Corp., 246 Conn. 594, 608 (1998); Pamela B. v. Ment, 244 Conn. 296, 308 (1998). After review of the legal memoranda, along with the cases, pleadings, and other materials referenced therein or attached thereto (including the CBA and the arbitrator’s decision), I hereby deny the motion to dismiss.

The collective bargaining agreement ("CBA") states, in pertinent part:

ARTICLE 4 NO DISCRIMINATION

  1. Neither the Home [i.e., the employer] nor the Union shall discriminate against any Employee, except on the basis of bona fide occupational qualifications.
  2. Neither the Home nor the Union shall discriminate against or in favor of any Employee on account of race, color, creed, religion, age, national origin, handicap, marital or veteran status, political belief, gender or sexual preference or Union affiliation.

ARTICLE 25 GRIEVANCE PROCEDURE

  1. A grievance shall be defined as a dispute or complaint arising between the parties hereto under or out of this Agreement of the interpretation, application, performance, termination, or any alleged breach thereof . . .

ARTICLE 26 ARBITRATION

  1. A grievance, as defined in Article 25, which has not been resolved thereunder may, within twenty (20) working days after the completion of Step 3 of the grievance procedure, be referred for arbitration by the Home or the Union to an Arbitrator . . .
  2. The award of an Arbitrator hereunder shall be final, conclusive and binding upon the Home, the Union and the Employees.

The complainant was terminated on August 3, 1998, allegedly for falsifying her time card. The union filed a grievance on her behalf and the grievance was processed in accordance with the CBA. Following denial of the grievance at the final step, the union requested the matter be referred to an arbitrator. After hearing, the arbitrator issued a written ruling that found, among other things, that the complaint was at least eleven minutes late for work on July 31, 1998 and that someone else punched in her time card at her behest. The arbitrator determined that the complainant was terminated for just cause and he denied the grievance. The arbitrator’s decision makes no mention of the complainant’s belief that she was terminated because of national origin, and it appears that such issue was not even raised at that time.

The respondent asserts that the issue of the complainant’s termination was fully and fairly litigated before the arbitrator, and the arbitration award should put this matter to rest. According to the cases cited by the respondent, the doctrines of res judicata (claim preclusion) and collateral estoppel (issue preclusion) protect the finality of judicial—and arbitral—determinations, conserve the time of the court, and prevent wasteful relitigation. Thus, claims the respondent, the complainant’s allegation of national origin discrimination should be dismissed.

Three United State Supreme Court decisions establish the framework for evaluating this motion. In the leading case, Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974), the plaintiff, who had been discharged by his employer, filed a grievance under the CBA and filed a complaint with the state civil rights agency, which in turn referred the matter to the Equal Employment Opportunity Commission ("EEOC"). In both matters, the plaintiff claimed his discharge had been motivated by race discrimination. After an arbitrator denied his grievance1 and the EEOC found no reasonable grounds to believe that a violation of Title VII had occurred, the plaintiff filed a federal action under Title VII. The federal District Court granted summary judgment for the respondent, holding that the plaintiff was bound by the arbitrator’s decision. The Supreme Court reversed the lower decision, holding that "federal policy favoring arbitration does not establish that an arbitrator’s resolution of contractual claims is dispositive of a statutory claim under Title VII." (Emphasis added.) Id. at 47.

The court noted that the legislative history of Title VII manifests an intent to allow pursuit of statutory rights independent of contractual rights under a bargaining agreement. "In sum, Title VII’s purpose and procedures strongly suggest that an individual does not forfeit his private cause of action if he first pursues his grievance to final arbitration under the nondiscrimination clause of a collective bargaining agreement." Id. at 49.2 See also McDonald v. City of West Branch, 466 U.S. 284 (1984) (in a §1983 action, federal courts not required to give preclusive effect to unappealed arbitrator’s decision); Barrentine v. Arkansas-Best Freight System, 450 U.S. 728 (1981) (employees’ rights under the Fair Labor Standards Act were not waived by the union in the bargaining agreement); Bates v. Long Island Railroad Company, 997 F.2d 1028, 1034 (2nd Cir. 1993) ("[w]hen an employee’s statutory civil rights have been violated, arbitration should not be the sole avenue of protection unless Congress has so specified").

In the second historically important case, Gilmer v. Interstate/Johnson Lane Corporation, 500 U.S. 20 (1991), the United States Supreme Court addressed the question of whether a statutory claim under the Age Discrimination in Employment Act, 29 U.S.C. §621 et seq., can be subjected exclusively to compulsory arbitration pursuant to an arbitration agreement. In Gilmer, the plaintiff was required by his employer to register as a securities representative with the New York Stock Exchange; the registration included an agreement to arbitrate employment-related controversies. When the plaintiff was terminated at age 62, he filed an age-discrimination claim with the EEOC and brought suit in federal court. The defendant moved to compel arbitration in accordance with the registration agreement. The federal District Court denied the motion; the Court of Appeals reversed. Upon review, the Supreme Court affirmed the appellate court, distinguishing its decision from Gardner-Denver and its progeny:

First, those cases [i.e., Gardner-Denver and following cases] did not involve the issue of the enforceability of an agreement to arbitrate statutory claims. Rather they involved the quite different issue whether arbitration of contract-based claims precluded subsequent judicial resolution of statutory claims. Since the employees there had not agreed to arbitrate their statutory claims and the labor arbitrators were not authorized to resolve such claims, the arbitration in those cases understandably was held not to preclude subsequent statutory actions.

Second, because the arbitration in those cases occurred in the context of a collective bargaining agreement, the claimants there were represented by their unions in arbitration proceedings. An important concern therefore was the tension between collective representation and individual statutory rights, a concern not applicable to the present case.

Finally, those cases were not decided under the [Federal Arbitration Act] . . .

Id. at 33, 34.

Gardner-Denver, therefore, continues to be viable precedent and, in light of the distinctions between the two cases, it is appropriate in the present matter to follow Gardner-Denver, rather than Gilmer. The three distinguishing factors recited in Gilmer likewise preclude Gilmer from controlling here. First, the CBA before me contains no language whereby the respondent’s employees have agreed to relinquish statutory rights to the authority of an arbitrator, nor is the arbitrator even given authority to hear statutory claims. Furthermore, like the plaintiffs in the Gardner-Denver line of cases, the complainant did not individually contract with the employer. Finally, as in Gardner-Denver, there is no invocation of the Federal Arbitration Act.

More recently, in Wright v. Universal Maritime Service Corp., 525 U.S. 70 (1998), the Supreme Court held that a CBA arbitration clause did not constitute a valid waiver of an employee’s right to access the federal court for his claim under the Americans with Disabilities Act of 1990, as amended ("ADA"), 42 U.S.C. 12101 et seq. The court found that the arbitration clause did not specifically require the submission of statutory discrimination claims to the arbitrator, stating "[W]e will not infer from a general contractual provision that the parties intended to waive a statutorily protected right unless the undertaking is ‘explicitly stated.’ More succinctly, the waiver must be clear and unmistakable." (Internal citations omitted.) Id. at 80, citing Metropolitan Edison Co. v. NLRB, 460 U.S. 694, 708 (1983).

Helpful guidance from the Second Circuit Court of Appeals appears in the recent Rogers v. New York University, 220 F.3d 73 (2nd Cir. 2000), a matter in which a former employee sued her employer in federal court for wrongful termination under the ADA, the Family and Medical Leave Act (FLMA), and corresponding state statutes. The employer moved to stay the proceedings, arguing that the plaintiff must first submit to binding arbitration as required by the CBA.3 The court reviewed both Gardner-Denver and Gilmer and determined that while the latter could apply in a situation where an employee individually agreed to waive his right to a judicial forum, that was not the case in Rogers—just as it is not the case in the present matter, where the complainant’s rights and duties were negotiated by her union. The court went on to address the "clear and unmistakable" standard established in the Wright decision:

Subsequent to Wright, other courts have determined that a waiver of statutorily conferred rights contained in a CBA is sufficiently clear and unmistakable if either of two conditions is met. First, a waiver is sufficiently explicit if the arbitration clause contains a provision whereby employees specifically agree to submit all federal causes of action arising out of their employment to arbitration. . . . (Citations omitted.)

Second, a waiver may be sufficiently clear and unmistakable when the CBA contains an explicit incorporation of the statutory anti-discrimination in addition to a broad and general arbitration clause. Thus ‘[i]f another provision, like a nondiscriminatory clause, makes it unmistakably clear that the discrimination statutes at issue are part of the agreement, employees will be bound to arbitrate their federal claims.’ . . . Courts agree that specific incorporation requires identifying the anti-discrimination statutes by name or citation.

Moreover, as the Supreme Court stated in Wright, the CBA should make compliance with the named or cited statute a contractual commitment that is subject to the arbitration clause. (Citations omitted.)

Id. at 76.

Similarly, in Beason v. United Technologies Corp., 37 F.Supp.2d 127 (D.Conn. 1999), the federal District Court followed the reasoning of Gardner-Denver and held that an arbitration decision that found no violations of the ADA did not bar the plaintiff from bringing a subsequent suit in federal court alleging violations of the ADA and the Connecticut Fair Employment Practices Act ["FEPA"]. In describing a situation remarkably similar to the present case, the court asserted that

[a]lthough the non-discrimination language in the CBA—contained in a different section than the arbitration clause—states that employees may not be discriminated against in violation of any state or federal statute, that is not the same as requiring union members to arbitrate such statutory claims. Moreover, the non-discrimination clause in the CBA does not even specifically refer to the ADA or [FEPA]. Therefore, as in Wright, the language at issue is not a ‘clear and unmistakable’ waiver of ADA claims and thus is not enforceable.

Id. at 130-31.

As in Rogers and Beason, the present CBA contains a general arbitration clause and an anti-discrimination provision. However, the CBA before me contains no language explicitly requiring statutory claims to be submitted to the grievance and arbitration process. Nor does it incorporate any specifically-named anti-discrimination statutes or indicate that compliance with such statutes is a contractual obligation subject to the arbitration clause. In short, the CBA contains no "clear and unmistakable" language preventing an employee from pursuing a statutory claim in another forum. Furthermore, all of the justifications for preserving a cause of action outside of the arbitration process are underscored by the critical fact that the complainant’s discrimination claim was not even considered at arbitration.

This matter is even more clear cut, and thus more easily resolved, under state law. Although this tribunal is generally guided by federal law in interpreting state anti-discrimination statutes; Levy v. Commission on Human Rights and Opportunities, 236 Conn. 96, 103 (1996); there are instances where there are distinct differences between the two. The Connecticut Supreme Court has found such differences to be purposeful and meaningful and thus has departed from federal precedent. Evening Sentinel v. National Organization for Women, 168 Conn. 26, 35 n.5 (1978). See also State of Connecticut v. Commission on Human Rights and Opportunities, 211 Conn. 464, 470 (1989) (while federal law provides guidance, it "defines the beginning and not the end of our approach on the subject"); Commission on Human Rights and Opportunities ex rel. Knowles v. Gilman Brothers, CHRO No. 9240221 (August 8, 1995) ( no need to resort to ADA analysis where complainant clearly met state standard). Federal case law certainly illuminates the issue before me, but even were that not the case, there is state law firmly supporting the complainant’s opposition to the motion to dismiss.

Both Connecticut statutes and case law address the issue of the preclusive effect of a prior grievance or arbitration on an employee’s right to bring a subsequent action in court or before this commission. The respondent relies upon a 1972 case, Corey v. Avco-Lycoming Division, Avco Corporation, 163 Conn. 309 (1993) for the proposition that ordinarily a factual determination made in binding arbitration is entitled to preclusive effect. Corey, however, is distinguished in a more recent case and is not binding in the present matter. In Genovese v. Gallo Wine Merchants, Inc., 226 Conn. 475, the plaintiff claimed that he was improperly discharged by the defendant employer, but the arbitrator, under a union-negotiated CBA, found instead that he had voluntarily quit. Thereafter, the plaintiff brought an action in state court alleging that he was discharged in violation of General Statutes §31-290a for filing a claim for workers’ compensation benefits. The trial court agreed with the defendant that the arbitral decision precluded the plaintiff from relitigating the issue of his discharge and granted the defendant’s motion for summary judgment. Relying upon General Statutes §31-51bb, the Connecticut Supreme Court reversed and held that the plaintiff employee could assert his statutory rights in a court action notwithstanding the arbitrator’s prior adverse decision of the same or similar claim.

While Genovese does not overrule Corey, it relies on a statute that did not exist at the time of Corey. According to General Statutes §31-51bb, "[n]o employee shall be denied the right to pursue, in a court of competent jurisdiction, a cause of action arising under that or federal constitution or under a state statute solely because the employee is covered by a collective bargaining agreement." Although Genovese concerned alleged wrongful termination under the Connecticut worker’s compensation statutes, the language of §31-51bb demonstrates the legislature’s intent to cast a broader net to include any statutory or constitutional claim. Id. at 491. As in Genovese, the complainant seeks to pursue a cause of action predicated upon a statutory right independent of any claim premised upon the CBA.

The court also determined that the doctrine of collateral estoppel did not apply and, thus, that the prior arbitration decision was not entitled to preclusive effect in the court action. Reviewing the legislative history of §31-51bb, the court agreed that the statute was designed to codify federal cases (such as Gardner-Denver and its progeny) that have refused to give an arbitration decision preclusive effect in a subsequent court action. Id. at 484-87.

Not only does the foregoing logic apply to cases brought before this tribunal, but the plain language of General Statutes §46a-85 removes any doubt. According to §46a-85(a), "[t]he submission of a claim to the arbitration process shall not bar a person from filing a complaint under [Chapter 814c, Human Rights and Opportunities]."4 The legislative history of §31-127, the predecessor statute to §46a-85, further demonstrates that the law was passed precisely to adopt the holding of Gardner-Denver; see 18 H.R. Proc., Pt. 5, 1975 Sess., pp. 2231-2232, remarks of Rep. Clark ("we should follow the Alexander vs. Gardner-Denver case to the effect that a person can file both a grievance to arbitrate and have a statutory legal right to file for an anti-discrimination [complaint] at the same time").

Both §31-51bb and §46a-85 preserve the right of a complainant to seek relief in court or before this tribunal, notwithstanding prior arbitration of the challenge to her termination. To give the arbitrator’s decision preclusive effect in the present matter would vitiate this right.

In conclusion, I find that the CBA contains no mandatory arbitration clause which would preclude this action, and that the findings and conclusions of the prior arbitration have no preclusive effect on this matter. Accordingly, the respondent’s motion to dismiss is hereby DENIED.

David S. Knishkowy
Human Rights Referee

c: J. Shea
A. Simonetti
M Winslow
R. Pech

ENDNOTES

1Although the arbitrator ruled that the plaintiff had been discharged for "just cause," he made no reference to alleged racial discrimination. Alexander v. Gardner-Denver Company, supra, 415 U.S. 42.
2 In the present case, the complainant’s union did not appear to pursue the grievance under the anti-discrimination clause.
3 As stated by the court,

The CBA contains a ‘no discrimination’ provision, which states that ‘[t]here shall be no discrimination as defined by applicable Federal, New York State, and New York City laws, against any present or future employee by reason of . . . physical or mental disability . . . .’ The CBA also provides that ‘[e]mployees are entitled to all provisions of the . . . [FMLA] that are not specifically provided for in this agreement.’ A separate grievance and arbitration clause in the CBA provides in substance that disputes arising under the agreement shall be arbitrated. Rogers v. New York University, supra, 220 F.3d 74.

4 Nonetheless, §46a-85(b) allows "[t]he Commission and the Presiding Officer [to] admit in evidence any decision resulting from such arbitration and accord it the weight appropriate under the facts and circumstances of the case." This, too, is predicated upon language in Gardner-Denver.