NOT RECOMMENDED FOR PUBLICATION
File Name: 21a0149n.06
No. 20-3854
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
) Mar 23, 2021
PAUL NEALY,
) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellant,
)
ON APPEAL FROM THE
)
v. UNITED STATES DISTRICT
)
COURT FOR THE
)
SHELLY & SANDS, INC., et al., SOUTHERN DISTRICT OF
)
OHIO
)
Defendants-Appellees.
)
BEFORE: BATCHELDER, MOORE and BUSH, Circuit Judges.
JOHN K. BUSH, Circuit Judge. Paul Nealy, an African-American union member, sued
his former employer, Shelly & Sands, Inc., alleging race-based discrimination and retaliation. The
district court dismissed his complaint, holding that the collective-bargaining agreements (“CBAs”)
between his union and Shelly & Sands required him to arbitrate his claims. He now appeals. For
the following reasons, we affirm the district court’s judgment.
I.
In March 2020, Nealy filed a complaint in the U.S. District Court for the Southern District
of Ohio raising claims against his former employer Shelly & Sands and his former supervisor,
Ryan Grezlik, under the Reconstruction Civil Rights Act, 42 U.S.C. § 1981; Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq.; and the Ohio Laws Against Discrimination, Chapter
4112 of the Ohio Revised Code. He alleged that Defendants discriminated against him on the
basis of race and retaliated against him for his good-faith complaints about racism by denying him
No. 20-3854, Nealy v. Shelly & Sands, Inc., et al.
a promotion and by failing to return him to work at the beginning of the construction season.
Nealy’s complaints about racism included reporting alleged discriminatory treatment to Shelly &
Sands’s Equal Employment Officer.
Defendants filed a motion to dismiss for lack of subject-matter jurisdiction, attaching
Nealy’s CBAs with Shelly & Sands. Defendants argued that Nealy’s claims constituted “equal
opportunity claims,” which he could bring only through arbitration according to the CBAs’
arbitration provisions. Nealy responded, countering that the CBAs did not “clearly and
unmistakably waive his rights to a judicial forum” for his claims.
Two substantially identical CBAs governed Nealy’s employment at the time the events
underlying Nealy’s allegations arose. Section 8.4 of each CBA (the “antidiscrimination
provision”) provides for equal opportunity in employment and bans race-based discrimination:
8.4 Non-Discrimination: It is a condition of this agreement to provide equal
opportunity in Employment for all qualified persons, and to prohibit discrimination
in employment because of race, creed, color, sex, age or national origin. There
shall be full compliance with all applicable Federal and State Statutes, regulations,
rules and orders of appropriate Federal or State agencies having jurisdiction over
the subject matter of discrimination in employment.
Also, Article VI of each CBA provides for grievance and arbitration procedures for any dispute
arising out of the CBA. Specifically, Section 6.2b (the “arbitration provision”) requires any “equal
employment opportunity” claims arising from either the CBA itself or “under any federal, state or
local fair employment practices law” to be addressed pursuant to the CBA’s grievance and binding
arbitration provision:
6.2b Any and all claims regarding equal employment opportunity provided for
under this Agreement or under any federal, state or local fair employment practices
law shall be exclusively addressed by an individual employee or the union under
the grievance and binding arbitration provision of this agreement.
As such, Article VI provides for a four-step grievance and arbitration process.
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The district court granted Defendants’ motion to dismiss. Nealy timely appeals.
II.
We consider a Rule 12(b)(1) motion to dismiss based on a failure to arbitrate as a motion
to dismiss for failure to state a claim upon which relief may be granted. Teamsters Local Union
480 v. United Parcel Serv., Inc., 748 F.3d 281, 286 (6th Cir. 2014). We review de novo a district
court’s grant of a motion to dismiss for failure to state a claim. Torres v. Vitale, 954 F.3d 866, 871
(6th Cir. 2020). Furthermore, we review de novo a district court’s holding regarding the
arbitrability of a dispute. Simon v. Pfizer, Inc., 398 F.3d 765, 772 (6th Cir. 2005).
III.
The Federal Arbitration Act (“FAA”) governs arbitration agreements. 9 U.S.C. § 1 et seq.
The FAA provides that “[a] written provision in . . . a contract evidencing a transaction involving
commerce to settle by arbitration a controversy thereafter arising out of such contract or
transaction . . . shall be valid, irrevocable, and enforceable,” except for legal or equitable grounds
“for the revocation of any contract.” 9 U.S.C. § 2. Following our “‘duty to interpret [an
arbitration] agreement and to determine whether the parties intended to arbitrate grievances
concerning’ a particular matter,” Granite Rock Co. v. Int’l Broth. Of Teamsters, 561 U.S. 287, 301
(2010) (quoting AT&T Techs., Inc. v. Commc’n Workers of Am., 475 U.S. 643, 651 (1986)), we
must “rigorously enforce agreements to arbitrate,” Dean Witter Reynolds, Inc. v. Byrd, 470 U.S.
213, 221 (1985). Moreover, “[n]othing in the law suggests a distinction between the status of
arbitration agreements signed by an individual employee and those agreed to by a union
representative.” 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 258 (2009).
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The issue here is whether the valid arbitration agreement’s scope encompasses Nealy’s
§ 1981, Title VII, and Ohio law antidiscrimination claims. See Stout v. J.D. Byrider, 228 F.3d
709, 714 (6th Cir. 2000) (stating that the second step of analyzing whether a dispute is subject to
arbitration is to ascertain the agreement’s scope).
A. LISTING OF SPECIFIC STATUTES
Nealy argues that he did not waive his right to a judicial forum for his statutory claims
because neither the antidiscrimination provision nor the arbitration provision in the CBAs
specifically lists § 1981, Title VII, or Chapter 4112 of the Ohio Revised Code. We disagree.
A waiver of statutory rights to a judicial forum in a CBA must be “clear and unmistakable.”
Wright v. Universal Maritime Serv. Corp., 525 U.S. 70, 80 (1998). In Wright, a general arbitration
clause for “[m]atters under dispute” was insufficiently clear because it neither contained a specific
antidiscrimination provision, nor did it “explicit[ly] incorporate[] . . . statutory antidiscrimination
requirements.” Id. The CBA also stated that “[a]nything not contained in this Agreement shall
not be construed as being part of this Agreement” and that “[i]t is the intention and purpose of all
parties hereto that no provision or part of this Agreement shall be violative of any Federal or State
Law.” Id. at 81. That language was insufficient to “mak[e] compliance with the [Americans with
Disabilities Act (ADA)] a contractual commitment that would be subject to the arbitration clause.”
Id.
Following Wright we held that a CBA did not “clearly and unmistakably” require
arbitration of an ADA claim where the CBA contained a non-discrimination clause prohibiting
disability discrimination against employees and, in another section, provided that “[a]ny grievance
arising under the terms of this contract or any alleged violation thereof shall be handled” according
to the CBA’s prescribed grievance and arbitration procedure. Bratten v. SSI Servs., Inc., 185 F.3d
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625, 627–28, 631–32 (6th Cir. 1999). In Bratten, the CBA’s reference to disability discrimination
did not necessarily refer to discrimination under the ADA because it could have encompassed only
disability discrimination under Title VII, which the provision explicitly referenced. Id. at 631.
Moreover, the antidiscrimination provision, on its own, did not automatically require arbitration
of statutory claims of discrimination simply because the CBA also contained a separate arbitration
clause. Id. at 631–32. Importantly, the arbitration clause mentioned neither statutory claims nor
the antidiscrimination provision, and the antidiscrimination provision did not refer to the
arbitration provision. Id. at 631. The presence of an antidiscrimination clause, on its own, did not
require union members to arbitrate statutory claims of discrimination. Id. at 631–32.
A year later, we similarly held that a CBA with a “general anti-discrimination provision”
that included a prohibition on disability-based discrimination did not waive a union member’s
rights to bring his ADA claim in court. Kennedy v. Superior Printing Co., 215 F.3d 650, 654 (6th
Cir. 2000). That CBA included a separate arbitration section broadly defining “a grievance as ‘any
controversy or dispute arising from the interpretation and/or application of the terms and work
conditions under this labor agreement.’” Id. at 654. Again, the antidiscrimination clause did not
explicitly mention arbitration, and the arbitration provisions did not mention statutory claims of
discrimination. Id.
Nealy relies on Wright, Bratten, and Kennedy to argue that citation to specific statutes in
the CBAs is necessary for the arbitration provision to cover claims brought under those statutes.
The holdings in those cases, however, hinged not on the presence or absence of citations to any
particular statute, but on the lack of any language making it clear and unmistakable that the
arbitration provision applied to the relevant statutory claims in the first place. In Bratten, for
example, there was no explicit reference at all to statutory claims in the arbitration provision;
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rather, the operative language referred only to “[a]ny grievance arising under the terms of this
contract” without any mention of statutory discrimination claims. 185 F.3d at 631–32. In that
context, we noted the absence of any citation to an antidiscrimination statutory provision because
that would be the only way to know that the employer was incorporating such a law into the
agreement and thereby making a dispute under that law a “grievance arising under the terms of the
contract.” In contrast, the CBAs here specifically require statutory claims of equal employment
opportunity to be arbitrated in the arbitration provision.
The CBAs at issue here differ fundamentally from those at issue in Wright, Bratten, and
Kennedy. Not only does the antidiscrimination provision explicitly require “full compliance with
all applicable Federal and State Statutes, regulations, rules and orders of appropriate Federal or
State agencies having jurisdiction over the subject matter of discrimination in employment,” but
the grievance and binding arbitration provision also explicitly refers to “claims regarding equal
employment opportunity . . . under any federal, state or local fair employment practices.” Thus,
the plain language of the contract indicates the parties’ mutual intent to require any “equal
employment opportunity” statutory claims—which clearly encompass claims of racial
discrimination in employment under § 1981, Title VII, and the Ohio Laws Against
Discrimination—to be submitted to arbitration before suit may be brought in court. See
Darrington v. Milton Hershey School, 958 F.3d 188, 194–95 (3d Cir. 2020) (“The clear-and-
unmistakable-waiver standard is satisfied if a collective bargaining agreement, interpreted
according to applicable contract-interpretation principles, clearly and unmistakably waives a
judicial forum for statutory claims.”). The CBAs’ language is “clear and unmistakable.”
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B. RETALIATION CLAIMS
Nealy posits that, even if the CBAs do require him to submit his claims of discrimination
to arbitration, the CBAs’ arbitration agreement does not reach his retaliation claims. Nealy
assumes that retaliation must be equivalent to, or a subset of, discrimination under the relevant
statutes to be included in the CBAs’ arbitration provision. It is not immediately clear why that
would be necessary, when the arbitration provision in section 6.2b provides that “[a]ny and all
claims regarding equal employment opportunity . . . under any federal, state or local fair
employment practices law” must be addressed according to the CBAs’ grievance and arbitration
provision. Thus, our inquiry is whether retaliation claims under § 1981, Title VII, and the Ohio
Laws Against Discrimination constitute “equal employment opportunity” claims under federal and
state “fair employment practices law.”
Title VII defines retaliation as a form of discrimination on the basis of an employee’s
“oppos[ition to] any practice made an unlawful employment practice by this subchapter,
or . . . charge, testi[mony], assist[ance], or participat[ion] in any manner in an investigation,
proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). Section 1981
encompasses employment-related retaliation claims. CBOCS West, Inc. v. Humphries, 553 U.S.
442, 454–55 (2008). And Ohio Rev. Code § 4112.02(I) likewise prohibits retaliation, defined
similarly as in Title VII, albeit by “any person” rather than strictly by employers against
employees. Each of these laws aims to prevent unfair practices in employment that hinder
employees’ equal access to opportunity: namely, an employer’s discrimination against an
employee for legitimate conduct. See CBOCS, 553 U.S. at 456 (explaining that an antiretaliation
law prohibits “discrimination that harms ‘individuals based on . . . conduct’” (quotation omitted)).
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Thus, Nealy’s retaliation claims clearly fit within the term “equal employment opportunity” claims
under federal and state “fair employment practices law.”
IV.
For the foregoing reasons, we affirm the district court’s dismissal of Nealy’s claims.
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KAREN NELSON MOORE, Circuit Judge, dissenting. I disagree with the majority’s
contention that “[t]he holdings in [Wright v. Universal Maritime Serv. Corp., 525 U.S. 70 (1998),
Bratten v. SSI Servs., Inc., 185 F.3d 625 (6th Cir. 1999), and Kennedy v. Superior Printing Co.,
215 F.3d 650 (6th Cir. 2000),] hinged not on the presence or absence of citations to any particular
statute, but on the lack of any language making it clear and unmistakable that the arbitration
provision applied to the relevant statutory claims in the first place.” Maj. Op. at 5. I read Bratten
as supplying a bright-line rule. Explaining that “post-Wright courts appear to be in agreement that
a statute must specifically be mentioned in a [collective bargaining agreement (“CBA”)] for it to
even approach Wright’s ‘clear and unmistakable’ standard[,]” the Bratten court held that “under
a ‘clear and unmistakable’ standard, the ADA and other statutory claims must be expressly
recounted in the CBA.” Bratten, 185 F.3d at 631; see also Kennedy, 215 F.3d at 654 (“Nowhere
does the Agreement reference the ADA. Therefore, under Wright and Bratten the Agreement
cannot be construed as waiving Kennedy’s rights to a judicial forum for his ADA claim.”);
Darrington v. Milton Hershey Sch., 958 F.3d 188, 194 & n.6 (3d Cir. 2020) (characterizing Bratten
as the Sixth Circuit’s “endors[ing]” a “bright-line approach[]”).
Simply put, Nealy should prevail. Nowhere do the CBAs in this case cite 42 U.S.C. § 1981,
Title VII, or Ohio’s nondiscrimination statute. Under Bratten—and under similar First, Fourth,
and Seventh Circuit precedent—the CBAs have not waived a judicial forum. See Quint v. A.E.
Staley Mfg. Co., 172 F.3d 1, 9 (1st Cir. 1999) (“CBA Articles 5 & 6, neither of which explicitly
mentions employee rights under the ADA or any other federal anti-discrimination statute, pose no
bar to the instant action.”); Carson v. Giant Food, Inc., 175 F.3d 325, 332 (4th Cir. 1999) (“When
the parties use such broad but nonspecific language in the arbitration clause, they must include an
‘explicit incorporation of statutory antidiscrimination requirements’ elsewhere in the contract.”)
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(quoting Wright, 525 U.S. at 81); Vega v. New Forest Home Cemetery, LLC, 856 F.3d 1130, 1135
(7th Cir. 2017) (determining that there is no clear and unmistakable waiver when “nowhere in
Article VIII [of the CBA] or, for that matter, anywhere else in the agreement is there even a
reference to the FLSA”).
Because I would reverse the district court and remand for further proceedings,
I respectfully dissent.
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