E.E.O.C. v. Board of Governors of State Colleges and Universities
| Citation | 957 F.2d 424 |
| Decision Date | 03 March 1992 |
| Docket Number | No. 90-2440,90-2440 |
| Parties | 58 Fair Empl.Prac.Cas. (BNA) 292, 58 Empl. Prac. Dec. P 41,326, 60 USLW 2566, 73 Ed. Law Rep. 360 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. BOARD OF GOVERNORS OF STATE COLLEGES AND UNIVERSITIES and University Professionals of Illinois, Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Gordon Waldron, Jason S. Hegy, E.E.O.C., Chicago, Ill., Paul D. Ramshaw (argued), E.E.O.C. Office of General Counsel, Washington, D.C., for E.E.O.C.
Stephen A. Yokich, Cornfield & Feldman, Edward B. Miller (argued), Pope, Ballard, Shepard & Fowle, Chicago, Ill., Mark T. Dunn, Dunn, Goebel, Ulbrich, Morel & Hundman, Bloomington, Ill., for Board of Governors of State Colleges and Universities.
Stephen A. Yokich, Cornfield & Feldman, Chicago, Ill., for University Professionals of Illinois.
Jill A. Goldy, Seyfarth, Shaw, Fairweather & Geraldson, Martha A. Churchill, Mid-America Legal Foundation, Chicago, Ill., for amicus curiae Illinois Chamber of Commerce.
Martha A. Churchill, Mid-America Legal Foundation, Chicago, Ill., for amicus curiae Society for Human Resource Management and Mid-America Legal Foundation.
Jill A. Goldy, James Baird, Krista S. Kaplan, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, Ill., for National Public Employer Labor Relations Ass'n, Illinois Public Employer Labor Relations Ass'n.
Before CUMMINGS and MANION, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.
The Equal Employment Opportunity Commission ("EEOC") brought this action to challenge the legality of a collective bargaining agreement provision that denies employees their contractual right to a grievance proceeding whenever the employee initiates a claim, including a claim of age-based discrimination, in an administrative or judicial forum. The policy in question was adopted pursuant to a collective bargaining agreement between the Board of Governors of State Colleges and Universities ("Board"), an agency or instrumentality of the State of Illinois, and University Professionals of Illinois ("Union"). 1 Under the collective bargaining agreement, when an employee files a charge or initiates a lawsuit the Board is authorized to halt existing or future grievance proceedings. The EEOC maintains that this policy violates Section 4(d) of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 623(d), which forbids discrimination against employees who have filed a charge, complaint or lawsuit under the ADEA. Accordingly, the EEOC has sought to enjoin the Board from enforcing its policy against employees who have filed charges or complaints under the ADEA. With much hesitation, the district court granted summary judgment for the Board on the basis of this Court's decision in Rose v. Hearst Magazines Div., Hearst Corp., 814 F.2d 491 (7th Cir.1987). On appeal, this Court assumes jurisdiction under 28 U.S.C. § 1291. For the following reasons, we reverse.
Article 17.2 of the collective bargaining agreement between the Board and the Union ("Article 17.2") provides:
If prior to filing a grievance hereunder, or while a grievance proceeding is in progress, an employee seeks resolution of the matter in any other forum, whether administrative or judicial, the Board or any University shall have no obligation to entertain or proceed further with the matter pursuant to this grievance procedure.
The EEOC contends that the Board's policy deprives ADEA claimants of a term or condition of employment and deters employees from exercising their rights under the ADEA. Because the provision prevents an employee from pursuing his grievance with the Board if he wishes to file a charge with the EEOC, it assertedly violates Section 4(d) of the ADEA ("Section 4(d)"), which provides:
It shall be unlawful for an employer to discriminate against any of his employees * * * because such individual, member or applicant for membership has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under this chapter.
This lawsuit resulted in three district court opinions which are reported at 665 F.Supp. 630 (1987), 706 F.Supp. 1377 (1989), and 735 F.Supp. 888 (1990). The EEOC has dubbed them BOG I, BOG II, and BOG III, referring to the defendant Board of Governors. We adopt this nomenclature.
BOG I revealed that on April 9, 1984, Professor Raymond Lewis filed a grievance with the Union because the Northeastern Illinois University president had decided not to recommend Lewis for tenure, allegedly in violation of University procedure. Lewis's grievance claim took more than a year to process, and an arbitration hearing was set for May 20, 1985. Although he was reluctant to do so, the EEOC encouraged Lewis to file an age discrimination claim with the Commission. He filed such a claim on May 14, 1985. As he feared, this caused the Board to terminate his pending grievance under the above-quoted provision of the collective bargaining agreement, thus blocking the completion of pending arbitration of Lewis's tenure dispute under the collective bargaining contract. The Board instructed the arbitrator in the grievance procedure not to render a decision regarding Lewis's claim even though the arbitration hearing had concluded before the Board had learned of his EEOC claim. The Board's actions prompted the EEOC to bring the present case. 2 Former Judge Getzendanner held that the above-quoted provision of the collective bargaining agreement constituted a prima facie case of forbidden retaliation under Section 4(d) of the ADEA, so she denied the Board's motion to dismiss the complaint. She also concluded that an employer's contractual right not to arbitrate certain cases is subservient to employee rights under Title VII of the Civil Rights of 1964 ("Title VII") and the ADEA.
After Judge Getzendanner resigned from the judiciary, the case was assigned to Judge Aspen for further processing that resulted in BOG II. In that opinion the court denied the EEOC's motion for partial summary judgment on the issue of liability. The district judge first held that the Eleventh Amendment did not bar ADEA claims against the Board and refused the Board's request to stay the litigation because five settlement conferences with a magistrate judge had failed. Neither of these rulings has been challenged on appeal. The district court judge also refused to grant the EEOC's motion for partial summary judgment. In reaching his conclusion, Judge Aspen questioned both the reasoning and holding in Rose v. Hearst Magazines Div., Hearst Corp., 814 F.2d 491 (7th Cir.1987), but felt constrained to follow dicta in that case. He therefore denied the EEOC's motion for summary judgment on the ground that the Board had raised a genuine issue concerning its good faith in adopting Article 17.2.
In BOG III the parties presented cross-motions for summary judgment. There Judge Aspen concluded that Article 17.2 was not invalid in the absence of evidence that the provision was adopted with intent to retaliate. There being no such evidence, summary judgment was granted for the Board. 3 735 F.Supp. at 890-891. Because we disagree that the Rose case requires such a result, we reverse.
Section 4(d) makes it unlawful for an employer to discriminate against an employee because he participated in an investigation, proceeding or litigation under the ADEA. Even though the explicit language in Section 4(d) prohibits "discrimination," this Court has referred to Section 4(d) claims as "retaliation" claims. Despite the Board's suggestion to the contrary, we do not distinguish the two terms because retaliation claims require proof of a greater level of animus than that required in discrimination claims. Instead, we use the terms as a shorthand way to distinguish substantive age discrimination claims from claims of discrimination based on the exercise of legal rights granted by the ADEA. 4 This shorthand characterization of discrimination claims and retaliation claims does not transform Section 4(d) into a narrower prohibition than that suggested by its statutory language. Nothing in Section 4(d) requires a showing of intent in retaliatory policy cases.
To the contrary, Section 4(d) is concerned with the effect of discrimination against employees who pursue their federal rights, not the motivation of the employer who discriminates. Section 4(d) explicitly prohibits discrimination against employees who engage in protected activity. When charged with unlawful retaliation in violation of Section 4(d), an employer may offer a legitimate non-discriminatory reason for taking an adverse action against an employee who has engaged in protected activity, i.e., that the employer took the adverse action for some reason unrelated to the employee's participation in protected activity. However, the employer may not proffer a good faith reason for taking retaliatory action. For example, the Board's asserted justification for Article 17.2, avoiding duplicative litigation, does not rebut the claim that the Board discriminated against employees who engaged in protected activity. Rather the Board's justification alleges that non-malicious discrimination against employees ought not be legally prohibited. It is not for this Court to determine when retaliation is permissible. Congress already resolved that issue when it determined that "[i]t shall be unlawful for an employer to discriminate against any of his employees * * * because such individual * * * has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under this chapter." 29 U.S.C. § 623(d). Notably, Congress chose not to enact any affirmative defenses to a charge of retaliation, 29 U.S.C. § 623(f), and did not provide an exception to Section 4(d) when such discrimination would...
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