LaChance v. Northeast Pub., Inc., Civil Action No. 96-11142-NG.

• Decision Date: 21 April 1997
• Docket Number: Civil Action No. 96-11142-NG.
• Citation: 965 F.Supp. 177
• Parties: Aime LaCHANCE, Plaintiff, v. NORTHEAST PUBLISHING, INC., d/b/a Fall River Herald, Defendant.
• Court: U.S. District Court — District of Massachusetts

965 F.Supp. 177

Aime LaCHANCE, Plaintiff, v. NORTHEAST PUBLISHING, INC., d/b/a Fall River Herald, Defendant.

Civil Action No. 96-11142-NG.

United States District Court, D. Massachusetts.

April 21, 1997.

Richard M. Pierce, Adam C. Robitaille, Roberts, Carroll, Feldstein & Tucker, Providence, RI, for plaintiff.

Harold N. Mack, Morgan, Brown & Joy, Boston, MA, for defendant.

MEMORANDUM AND ORDER

GERTNER, District Judge.

                                               TABLE OF CONTENTS
                                             MEMORANDUM AND ORDER
                                                 April 21, 1997
                  I. BACKGROUND ........................................................... 179
                 II. STANDARD OF REVIEW ................................................... 179
                III. DISCUSSION ........................................................... 179
                     A. From Gardener-Denver to Gilmer .................................... 180
                     B. The Case At Bar ................................................... 184
                        1. Claim Not Covered by the Arbitration Agreement Are Not Precluded
                             From Litigation in a Federal Forum ........................... 184
                        2. ADA Claims ..................................................... 185
                           a. Reasonable Accommodations ................................... 185
                           b. Legislative History of the ADA .............................. 186
                           c. State Age and Handicap Discrimination Claims................. 187
                        3. The Arbitration Clause Arises From the Collective Bargaining
                             Agreement .................................................... 188
                 IV. POST-GILMER CASELAW .................................................. 189
                  V. CONCLUSION ........................................................... 190
                

Plaintiff Aime LaChance ("LaChance") filed a complaint alleging that his employer, defendant Northeast Publishing, Inc. ("Northeast"), illegally terminated him in violation of the Americans With Disabilities Act, 42 U.S.C. § 12101 (1996), handicap discrimination, and Mass. Gen. Laws ch. 151B § 4 (1996), handicap discrimination and age discrimination. Northeast has moved for summary judgment, contending that LaChance is precluded from bringing his statutory discrimination claims because he is subject to an arbitration clause in a collective bargaining agreement. For the foregoing reasons, the defendant's motion for summary judgment is DENIED.

I. BACKGROUND

Northeast terminated LaChance from his job as copy editor in November, 1994. According to LaChance, he suffered from Carpal Tunnel Syndrome and required accommodation to perform his job. At the time of termination, the terms and conditions of LaChance's employment were governed by a collective bargaining agreement (hereinafter "the CBA"). The CBA was negotiated by Northeast and The Newspaper Guild of Greater Boston, Local 32 ("Local 32"). On March 14, 1995, pursuant to the CBA, Local 32 filed a demand for arbitration on LaChance's behalf to challenge the termination. The arbitration hearing is currently pending.

In May, 1995, LaChance also filed a charge with the Massachusetts Commission Against Discrimination ("MCAD") and the Equal Employment Opportunity Commission ("EEOC"), alleging handicap discrimination in violation of the Americans With Disabilities Act ("ADA"), and age discrimination and handicap discrimination in violation of Mass. Gen. Laws ch. 151B § 4 ("151B"). After the MCAD issued a lack of probable cause finding, LaChance began this action in state court; Northeast removed the case to federal court.

The CBA governing LaChance's employment contains a non-discrimination clause which provides:

The parties hereto agree that there shall be no discrimination against an employee because of ... race, creed, age, sex, color, national origin, marital or parental status, sexual orientation, or handicap irrelevant to the performance of the job.

The CBA also contains an arbitration clause, which states, in relevant part:

Any matter involving the interpretation, application, administration or alleged violation of this Agreement not satisfactorily settled within sixty (60) days ... may be submitted by either party to final and binding arbitration by filing a demand in accordance with the voluntary arbitration rules of the American Arbitration Association.

Northeast claims that this agreement precludes the litigation of LaChance's statutory claims in a federal court forum. It insists that LaChance's discrimination claims are based on acts of the employer which, if true, would be prohibited by the CBA. Consequently, Northeast contends that since the arbitration clause provides that any violation of the CBA must be arbitrated, LaChance cannot pursue his discrimination claims in this Court.

II. STANDARD OF REVIEW

Northeast has filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). Since its motion refers to documents outside the pleadings, however, Northeast asks this Court to treat its 12(b)(6) motion as a motion for summary judgment. The plaintiff has assented to this request.

In a motion for summary judgment, the burden is on the moving party to establish the lack of a genuine, material factual issue. See Finn v. Consolidated Rail Corp., 782 F.2d 13, 15 (1st Cir.1986). Once the moving party has satisfied its burden, the non-moving party must affirmatively point to evidence that shows a real dispute of material fact. See Garside v. Osco Drug, Inc., 976 F.2d 77, 78 (1st Cir.1992). Summary judgment should only be granted if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56.¹

III. DISCUSSION

This case concerns the impact of the Supreme Court's decision in Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991) on arbitration clauses in collective bargaining agreements where a plaintiff has asserted a claim under the Americans with Disabilities Act ("ADA"). Gilmer, at least on the surface, appeared to reverse more than a decade's worth of law which had held that an employee could never be obliged, as a condition of employment, to waive the right to resort to the federal courts to redress violations of various civil rights statutes.

Prior to Gilmer, in a series of decisions dating from the early 1970's, the Court held that federal courts, with Article III judges and representative juries, were uniquely suited to protect the civil rights of workers; the arbitral process — informal, with limited discovery, and focused on contractual, not public, rights — was not. The decisions reflected concerns that the freedom to contract for the terms and conditions of employment was not adequate to prevent discrimination against certain constitutionally protected classes, e.g. women, minorities, the disabled, and older workers.² Nor were unions the solution; their limitations in reconciling the needs of their minority members with their majority responsibilities were well known.³ Bias against these groups would make fair bargaining, between parties of equal bargaining power, with meaningful negotiation, impossible.⁴ Legislative intervention and resort to the federal forum were indispensable.

In contrast, in Gilmer, the Court held that a petitioner claiming a violation of the Age Discrimination in Employment Act ("ADEA"), had indeed waived his right to litigate the claim before an Article III judge and a federal jury, by signing a securities registration application which, in general terms, mandated arbitration. The earlier concerns — about the limitations of freedom of contract for members of protected groups, about the uniqueness of federal statutory protections — were less material, at least in the setting raised in Gilmer. And arbitration had, in a little over a decade, somehow shed its perceived limitations in enforcing federal statutory rights.

The defendants claim that Gilmer is dispositive; mandatory arbitration trumps LaChance's right to this federal forum. I disagree. The case before me raises some of the issues litigated in Gilmer but in an entirely different setting — not an arbitration clause in an individual employment agreement, in which there is at least the fiction of individual bargaining, but in the context of an arbitration clause in a collective bargaining agreement, negotiated by a union representative, to which LaChance was bound solely by dint of membership in the union. Moreover, the arbitration clause at issue here is different from the broad clause at issue in Gilmer, it is limited on its face to contractual disputes. Finally, this case involves an entirely different statute, the Americans with Disabilities Act, with complex requirements, less suited to arbitration than the ADEA. These different circumstances require a different result than in Gilmer.

A. From Gardner-Denver to Gilmer

The case law on whether statutory civil rights protections could be waived in collective bargaining agreements could not be clearer or of longer standing. It is framed by three Supreme Court decisions: Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974), Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 101 S.Ct. 1437, 67 L.Ed.2d 641 (1981), and McDonald v. City of West Branch, 466 U.S. 284, 104 S.Ct. 1799, 80 L.Ed.2d 302 (1984).

In Alexander v. Gardner-Denver Co., supra, the Supreme Court held that the petitioner was not precluded from bringing a Title VII claim by the prior submission of his discrimination claim to final arbitration under a collective bargaining agreement. In so doing, the Court sounded several strong themes:

(1) The Court noted that the doctrine of election of remedies was inapplicable to these federal civil rights claims because of the "distinctly separate nature of ... contractual and statutory rights"; an agreement which limited contractual claims to a certain forum would not affect statutory claims (the "uniqueness of the statutory...