Blanchette v. School Committee of Westwood

• Decision Date: 06 April 1998
• Citation: 427 Mass. 176,692 N.E.2d 21
• Parties: , 124 Ed. Law Rep. 676 Doris BLANCHETTE v. SCHOOL COMMITTEE OF WESTWOOD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 21

692 N.E.2d 21

427 Mass. 176, 124 Ed. Law Rep. 676

Doris BLANCHETTE v. SCHOOL COMMITTEE OF WESTWOOD.

Supreme Judicial Court of Massachusetts,

Norfolk.

Argued Dec. 9, 1997.

Decided April 6, 1998.

Kay H. Hodge, Boston (Geoffrey R. Bok, with her), for defendant.

Albert W. Wallis, Boston (Betty A. Gittes, with him), for plaintiff.

Harold L. Lichten and Warren H. Pyle, Boston, for the Massachusetts National Employment Lawyers Association & another, amici curiae, submitted a brief.

Judith M. Neumann, Boston, for the Massachusetts Teachers Association, amicus curiae, submitted a brief.

Before WILKINS, C.J., and ABRAMS, LYNCH, GREANEY, FRIED, MARSHALL and IRELAND, JJ.

IRELAND, Justice.

The plaintiff, Doris Blanchette, a former employee of the defendant, school committee of Westwood (committee), commenced this action in the Superior Court, alleging that the committee, in violation of G.L. c. 151B, § 4(4), retaliated against her by evaluating her unfairly and by failing to renew her employment because she had filed a charge of sexual harassment with the Equal Employment Opportunity Commission (EEOC) and the Massachusetts Commission Against Discrimination (MCAD).

The committee moved to dismiss or for summary judgment, contending that the claims raised in this action had been fully and fairly adjudicated in an arbitration proceeding pursuant to the terms of a collective bargaining agreement (agreement) between the Westwood Teachers Association (association) and the committee. The judge denied the motion. A single justice of the Appeals Court granted the committee's petition for leave to prosecute an interlocutory appeal, and we granted the committee's application for direct appellate review. We now affirm.

1. Facts. Blanchette began working as a library media specialist at the Thurston Middle School (Thurston) in Westwood in September, 1990. At all relevant times, Blanchette was a member of the association, and the association had an agreement with the committee.

On June 8, 1992, Blanchette complained to the superintendent of schools that she had been sexually harassed by Thurston's principal. The superintendent investigated Blanchette's allegations and similar allegations that other members of the association subsequently made. As a result of the investigation, the principal resigned on July 3, 1992.

On August 7, 1992, Blanchette filed a charge of sexual harassment against the committee with the EEOC and the MCAD. Following an investigation, the EEOC and the MCAD dismissed Blanchette's charge in May, 1994.

In the fall of 1992, Thurston's new principal began formal evaluations of Blanchette's performance, pursuant to the agreement's procedures for awarding tenure. On January 13, 1993, the principal wrote a letter to Blanchette discussing her job performance in mostly negative terms. In March, 1993, the principal completed the formal evaluation procedures and recommended to the committee that Blanchette not receive tenure. Based on this recommendation, the committee did not grant Blanchette tenure and did not renew her employment at the conclusion of the 1992-1993 school year.

2. The grievances. The association filed two grievances on behalf of Blanchette. The first grievance was filed on February 11, 1993, and concerned the principal's letter of January 13. The association claimed that the letter violated the agreement's evaluation procedures and was in retaliation against Blanchette because she had filed the sexual harassment charge with the EEOC and the MCAD. After the grievance was denied at each procedural level contained in the agreement, the association invoked its right under the agreement to demand binding arbitration.

The second grievance was filed on May 17, 1993, and concerned the committee's failure to renew Blanchette's contract. The association again claimed that the decision was in retaliation against Blanchette because she had filed the sexual harassment charge. This grievance was also denied, and the association again invoked its right under the agreement to demand binding arbitration. By mutual consent, the two grievances were consolidated into a single arbitration.

3. The arbitration. The arbitration hearing began on March 10, 1994. At the outset, the committee contended that the arbitrator did not have authority to hear the association's retaliation claims because the agreement contained no language that prohibited such retaliation. The association argued in response that the agreement incorporated by reference State and Federal antidiscrimination laws, including G.L. c. 151B, § 4(4), and Title VII of the Federal Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (1994) (Title VII), which prohibit retaliation against an employee for filing a harassment charge.

In an interim ruling issued on May 17, 1994, the arbitrator concluded that the retaliation claim was arbitrable. Relying on explicit references in the agreement to external law, the arbitrator determined that "the parties intended that claims of discrimination be examined in light of such external law, as well as the language of the Agreement." ¹

On February 29, 1996, the arbitrator issued an opinion and award in which she determined that the committee had violated the agreement in its evaluation and treatment of Blanchette. On March 25, 1996, the arbitrator issued a final award, consisting of the expungement of various offending documents from Blanchette's personnel file, reinstatement of Blanchette to her former position (in order to redo her third year and be properly and fairly evaluated for tenure), and back pay. The arbitrator offered Blanchette the option, in lieu of reinstatement, of receiving back pay as a lump-sum payment with interest. ²

4. The Superior Court action. On January 10, 1996, Blanchette filed this action in the Superior Court, while the arbitration was still pending. Based on the same facts at issue in the arbitration, Blanchette claimed that the committee had violated her civil rights under G.L. c. 151B, § 4(4), by retaliating against her for filing a charge of sexual harassment with the EEOC and the MCAD (statutory civil rights claim). The committee moved to dismiss or for summary judgment. Relying on Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974), and Boston v. Massachusetts Comm'n Against Discrimination, 39 Mass.App.Ct. 234, 654 N.E.2d 944 (1995), the judge denied the motion.

5. Discussion. The committee argues that the doctrines of preclusion, waiver, and judicial estoppel prevent Blanchette from pursuing her statutory civil rights claim in a judicial forum. We address the arguments under each doctrine separately.

a. Preclusion. ³ By statute, parties to a collective bargaining agreement may include grievance procedures "culminating in final and binding arbitration" in their agreement. G.L. c. 150E, § 8. However, the grievance procedures can apply only to disputes "concerning the interpretation or application" of any such agreement. Id. Consistent with this statutory treatment, art. XVII of the agreement here states that the grievance procedures "shall be applicable only to questions of interpretation of the terms of this Agreement."

We have held that the prior submission of a claim to arbitration may have a preclusive effect on the same claim in a subsequent court action. See Miles v. Aetna Cas. & Sur. Co., 412 Mass. 424, 427, 589 N.E.2d 314 (1992). The inquiry turns, in large part, on whether the "right" or "issue" on which preclusion is sought has been "the product of full litigation and careful decision." Id., quoting Home Owners Fed. Sav. & Loan Ass'n v. Northwestern Fire & Marine Ins. Co., 354 Mass. 448, 455, 238 N.E.2d 55 (1968).

In Alexander v. Gardner-Denver Co., 415 U.S. 36, 43, 94 S.Ct. 1011, 1017, 39 L.Ed.2d 147 (1974), the United States Supreme Court held that an employee who had exhausted his remedies under the grievance procedures of a collective bargaining agreement was not precluded from pursuing a judicial action under Title VII, because the "rights" that concern the interpretation and application of a collective bargaining agreement are distinguishable from the statutory "rights" to be free from discrimination in the workplace under Title VII. Id. at 49-50, 94 S.Ct. at 1020. In particular, the Court stated that:

"In submitting his grievance to arbitration, an employee seeks to vindicate his contractual right under a collective-bargaining agreement. By contrast, in filing a lawsuit under Title VII, an employee asserts independent statutory rights accorded by Congress. The distinctly separate nature of these contractual and statutory rights is not vitiated merely because both were violated as a result of the same factual occurrence. And certainly no inconsistency results from permitting both rights to be enforced in their respectively appropriate forums."

Id. The Court further noted that "in instituting an action under Title VII, the employee is not seeking review of the arbitrator's decision. Rather, he is asserting a statutory right independent of the arbitration process." Id. at 54, 94 S.Ct. at 1022.

We reached a similar result interpreting our State antidiscrimination statute in School Comm. of Brockton v. Massachusetts Comm'n Against Discrimination, 377 Mass. 392, 399, 386 N.E.2d 1240 (1979), where we relied on Alexander to distinguish rights that are part of a collective bargaining process from individual rights conferred by G.L. c. 151B, § 4, including the right to equal employment opportunities. The Appeals Court discussed this distinction in more detail in Boston v. Massachusetts Comm'n Against Discrimination, 39 Mass.App.Ct. 234, 238, 654 N.E.2d 944 (1995), and concluded that the "dominant idea underlying the [Alexander ] line of cases is that when Congress accords a person an independent statutory right (or in the State context, when the Legislature accords such a right), that public right ... is independent...