EEOC v. Bd. of Gov. of State Colleges & Univ.

• Decision Date: 22 April 1987
• Docket Number: No. 86 C 295.,86 C 295.
• Citation: 665 F. Supp. 630
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. BOARD OF GOVERNORS OF STATE COLLEGES AND UNIVERSITIES, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

665 F. Supp. 630

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. BOARD OF GOVERNORS OF STATE COLLEGES AND UNIVERSITIES, et al., Defendants.

No. 86 C 295.

United States District Court, N.D. Illinois, E.D.

April 22, 1987.

Sherry R. Faulkner, E.E.O.C., Chicago, Ill., for plaintiff.

Mark T. Dunn, Dunn, Goebel, Ulbrich, Morel & Hundman, Bloomington, Ill., Charles R. McKirdy, Pope, Ballard, Shepard & Fowle, Ltd., Kenneth R. Dolin, Chicago, Ill., for defendants.

MEMORANDUM OPINION AND ORDER

GETZENDANNER, District Judge:

Plaintiff Equal Employment Opportunity Commission brings this action against defendants Board of Governors of State Colleges and Universities (the "Board"), and University Professionals of Illinois (the "Union"), under the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq. (the "ADEA"). The action seeks to enjoin defendants from discriminating against those employees and members of the defendants who have filed charges or complaints under the ADEA. The Board has moved to dismiss the action under Fed.R.Civ.P. 12(b)(1) and 12(b)(6). Because the court finds that plaintiff has stated a claim upon which relief can be granted, the motion is denied for the reasons set forth below.

Factual Background

The Board (an agency of the State of Illinois) and the Union have entered into a collective bargaining agreement (the "CBA") which contains a provision that allows the Board to terminate an employee's grievance brought under the CBA once that employee files a charge of discrimination with the EEOC which "seeks a resolution of the matter" that is the subject of the grievance. Article 17.2 of the CBA 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.

On April 9, 1984, Raymond Lewis filed a grievance with the Union on account of the decision of the Northeastern Illinois University President not to recommend Lewis to the Board for tenure. The grievance charged that the Board failed to adhere to the University's procedure for granting tenure. On May 14, 1985, Lewis filed a charge of age discrimination with the EEOC. In contrast to the grievance, this charge alleged that Lewis had been denied tenure on account of his age. Besides this difference between the legal theories of these two claims, there may be other differences between the two claim procedures, such as methods of proof and possibilities for relief, but no record has yet been developed on these points.

After the Board became aware of Lewis' ADEA charge with the EEOC, it invoked Article 17.2 and terminated Lewis' grievance, reasoning that both claims arose out of the same "matter." This termination meant that Lewis was no longer entitled to arbitration of his tenure procedure dispute as prescribed in the CBA. Consequently, the EEOC then brought this action charging that at least since January 1, 1979, the Board has engaged in unlawful and discriminatory employment practices in violation of Section 4(d) of the ADEA, 29 U.S.C. § 623(d). Specifically, the EEOC charged the Board with discriminating against employees who have filed charges or complaints under the ADEA by terminating their grievances brought under the CBA. The EEOC has also alleged that the effect of this practice has been to deprive employees of a term or condition of employment, thus deterring them from exercising their rights under the ADEA.

Legal Discussion

This case presents a conflict between several important and well established principles of law. The court notes them all at the outset. First is the doctrine, derived from contract law, that a party is not required to submit any dispute to arbitration that it has not agreed to submit; or, to put the principle in terms that better apply to this case, a party is not required to submit to arbitration those disputes it agreed it would not have to so submit. This principle has received Supreme Court sanction ever since the 1960 Supreme Court decisions known as the Steelworkers Trilogy. The Supreme Court has reiterated these principles as recently as its last term. In AT & T Technologies, Inc. v. Communication Workers, 475 U.S. 643, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986) the Court stated:

The principles necessary to decide this case are not new. They were set out by this Court over 25 years ago in a series of cases known as the Steelworkers Trilogy....

The first principle gleaned from the Trilogy is that "arbitration is a matter of contract and a party cannot be required to submit to arbitration any matter which he has not agreed to so submit." Warrior & Gulf, supra 363 U.S. 564 at 582 80 S.Ct. 1347, 1353, 4 L.Ed.2d 1424 (1960).... This axiom recognizes the fact that arbitrators derive their authority to resolve disputes only because the parties have agreed in advance to submit such grievances to arbitration. (citations omitted).

Counterpoised against this doctrine are several other familiar precepts of federal law. First, section 4(d) of the ADEA, 29 U.S.C. § 623(d), provides that "it shall be unlawful for an employer to discriminate against any of his employees ... because such individual ... has made a charge ... under this chapter." Furthermore, an "employer and the union cannot agree to terms in a labor contract which violate" federal laws. U.S.E.E.O.C. v. County of Calumet, 686 F.2d 1249, 1255 (7th Cir.1982). "The terms of any collective bargaining agreement must comply with federal laws that prohibit discrimination on grounds of race, color, religion, sex or national origin; that protect veterans; that regulate certain industries; and that preserve our competitive economy." UMWA Health and Retirement Fund v. Robinson, 455 U.S. 562, 575, 102 S.Ct. 1226, 1234, 71 L.Ed.2d 419 (1982) (citations omitted). As a result of this limitation on the permissible terms of a collective bargaining agreement, it is now settled that a union, as a party to such an agreement, may not prospectively waive the rights of the employees under such statutes as Title VII, see Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974), or under the ADEA, see County of Calumet, 686 F.2d at 1256 ("the decision in Alexander extends to the ADEA").

Finally, in the Seventh Circuit, in order to prove a prima facie case of discrimination under § 4(d) of the ADEA, a plaintiff need only establish that "(1) there was statutorily protected activity by the employee; (2) adverse employment action occurred, and (3) there was a causal link between the protected activity and the adverse employment action." Jennings v. Tinley Park Community, 796 F.2d 962, 966-67 (7th Cir.1986); Klein v. Trustees of Indiana University, 766 F.2d 275, 280 (7th Cir.1985).

The EEOC argues that the conduct alleged in this case violates § 4(d) because Lewis participated in protected activity (filing an ADEA charge), adverse employment action followed (his grievance was terminated), and the adverse action was the direct consequence of the filing of his ADEA claim (i.e., Article 17.2). Furthermore, although the Union and the Board agreed that the Board would not have to submit a case to arbitration when the same "matter" was to be heard before another forum, that agreement is invalid, the EEOC urges, because it amounts to waiver of the individual employee's ADEA right to be free from retaliation for exercising ADEA rights, and such waivers are invalid.

The Board contends that its right not to submit a dispute to arbitration when it has not previously agreed to do so (such as those matters covered by Article 17.2) is fundamental. Second, the agreement embodied in Article 17.2 is valid because it does not constitute a waiver by any union member of any ADEA rights. Finally, the termination agreement served the salutory purpose of avoiding the waste of duplicative proceedings on the same "matter."

Initially, the court evaluates the Board's first contention that its right to be free from submitting to arbitration those matters it has not agreed to submit is essentially inviolate. The court does not write on a clean slate on this issue. As the Steelworkers Trilogy holds, arbitration rights are a matter of contract. Thus, the Board's "right" to be free from submitting those matters to arbitration which it has not agreed to so submit is a right based on fundamental principles of contract law: When an employer has not agreed to arbitrate a dispute, contract law provides that the employer may not be forced to arbitrate. But the employee, of course, also has the right to be free from unlawful discrimination. This case thus presents a conflict between an employer's contractual freedoms and an individual employee's right to be free from unlawful discrimination. In a related context, the Seventh Circuit has held that when there is a conflict between an individual employee's rights under the ADEA and a union's collective bargaining rights, the individual rights must be deemed "superior." County of Calumet, 686 F.2d at 1256. See also Alexander, 415 U.S. at 51-52, 94 S.Ct. at 1021. Despite the adverse effect on a union of placing certain individual rights above the interests of the collective union majority, "the principle of majority rule, however central to the national labor relations policy, is on occasion subordinate to the rights of the individual employee. This is true of age discrimination in the workplace...." County of Calumet, 686 F.2d at 1256.

Of course, this case does not present a conflict between the rights of the individual and the rights of the collective union. It is potentially a conflict between the rights of the individual and the rights of the employer — specifically, the employer's contractual right not to have to submit to arbitration...