Watford v. Jefferson County Public Schools

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 17a0203p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

JOYCE WATFORD, ┐
Plaintiff-Appellant, │
│
> No. 16-6183
v. │
│
│
JEFFERSON COUNTY PUBLIC SCHOOLS, │
Defendant, │
│
JEFFERSON COUNTY BOARD OF EDUCATION; JEFFERSON │
COUNTY TEACHERS ASSOCIATION, │
│
Defendants-Appellees.
┘

Appeal from the United States District Court for
the Western District of Kentucky at Louisville.
No. 3:13-cv-00425—Thomas B. Russell, District Judge.

Argued: March 9, 2017

Decided and Filed: September 1, 2017

Before: DAUGHTREY, MOORE, and GIBBONS, Circuit Judges.

_________________

COUNSEL

ARGUED: Andrew Dutkanych III, BIESECKER, DUTKANYCH & MACER, LLC,
Louisville, Kentucky, for Appellant. C. Tyson Gorman, WYATT, TARRANT & COMBS, LLP,
Louisville, Kentucky, for Appellee Board of Education. Benjamin S. Basil, PRIDDY, CUTLER,
NAAKE & MEADE, PLLC, Louisville, Kentucky, for Appellee Teachers Association. Gail S.
Coleman, UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Washington, D.C., for Amicus Curiae. ON BRIEF: Andrew Dutkanych III, Krista A. Willike,
BIESECKER, DUTKANYCH & MACER, LLC, Louisville, Kentucky, for Appellant. C. Tyson
Gorman, Amanda Warford Edge, WYATT, TARRANT & COMBS, LLP, Louisville, Kentucky,
for Appellee Board of Education. Benjamin S. Basil, Don Meade, PRIDDY, CUTLER, NAAKE
& MEADE, PLLC, Louisville, Kentucky, for Appellee Teachers Association. Gail S. Coleman,
 No. 16-6183 Watford v. Jefferson Cty. Pub. Sch. et al. Page 2

UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington,
D.C., for Amicus Curiae.

MOORE, J., delivered the opinion of the court in which DAUGHTREY, J., joined.
GIBBONS, J. (pp. 11–15), delivered a separate dissenting opinion.

_________________

OPINION
_________________

KAREN NELSON MOORE, Circuit Judge. At issue in this employment-discrimination
case is a collective bargaining agreement (“CBA”) negotiated and signed by Defendants-
Appellees Jefferson County Board of Education (“JCBE”) and Jefferson County Teachers
Association (“JCTA”). Under the CBA, if an employee believed that they were discriminated
against, that employee could file a grievance with JCBE. However, if the employee
subsequently filed a charge with the Equal Employment Opportunity Commission (“EEOC”), the
CBA required that the grievance proceedings be held in abeyance. Such was the case here.
Watford filed a grievance on the day she was terminated—October 13, 2010—and those
proceedings are still in abeyance. Frustrated that her grievance proceedings were held in
abeyance simply because she filed an EEOC charge, Watford brought this case, alleging that
JCBE and JCTA retaliated against her for filing an EEOC charge. The district court awarded
summary judgment against Watford, an award that is inconsistent with this court’s admonition
that “an adverse action against [an] employee because the employee had pursued the statutorily
protected activity of filing a charge with the EEOC” is “clearly” retaliation. See EEOC v.
SunDance Rehabilitation Corp., 466 F.3d 490, 498 (6th Cir. 2006). Because of this
inconsistency, and because the CBA is retaliatory on its face, we REVERSE the district court’s
judgment and REMAND for further proceedings consistent with this opinion.

I. BACKGROUND

Watford’s eleven-year teaching career with Jefferson County Public Schools (“JCPS”)
came to an end when JCPS terminated her on October 13, 2010. R. 40-4 (Termination Letter at
4) (Page ID #883). In Watford’s termination letter, the JCPS superintendent claimed that her
final two years were marked by “insubordination and conduct unbecoming a teacher.” Id.
 No. 16-6183 Watford v. Jefferson Cty. Pub. Sch. et al. Page 3

Believing that her termination was instead due to discrimination on the basis of race, sex, and
age, Watford filed a grievance with Defendant-Appellee Jefferson County Board of Education
(“JCBE”) on the very day she was terminated. R. 44-7 (Watford Grievance No. T11-017-09-06)
(Page ID #1171). So began Watford’s case.

A. The Collective Bargaining Agreement

At the heart of this dispute is the CBA between JCBE and JCTA. The CBA, which
stipulates to teachers’ rights—from academic freedom to school safety—contains grievance
procedures in the event “that there has been a violation, misinterpretation or improper application
of one or more specific provisions of this Agreement or any complaint alleging improper,
arbitrary, or discriminatory conduct.” R. 36-4 (CBA art. 29, § A.1) (Page ID #400). Grievances
begin with informing the teacher’s “immediate supervisor or the appropriate administrator” and
may be appealed up the hierarchy to the superintendent. See id. art. 29, § D (Page ID #402). If
the teacher is still unsatisfied with the superintendent’s decision, the JCTA may submit the
grievance to arbitration. Id. (Page ID #403). Throughout, the grievance process is intended to
proceed “as rapidly as possible,” with time limits set at each stage (which, naturally, may “be
extended by mutual agreement”). See id. (Page ID #401–04).

The CBA also places limits on potential grievants’ choice of remedies. Kentucky has a
dispute resolution process for teachers called an “administrative hearing tribunal,” see Ky. Rev.
Stat. Ann. § 161.790 (West 2006), and teachers covered by the CBA must select either the
tribunal process or the grievance process; they cannot pursue both. See R. 36-4 (CBA art. 9,
§ D) (Page ID #326). In addition, and centrally to this case, “[i]f the employee opts to pursue a
complaint using another agency, the parties agree to hold the grievance in abeyance until the
agency complaint is resolved.” See id. Finally, the CBA stipulates that “[t]he Association and
the aggrieved party will be required to exhaust this Grievance Procedure including arbitration
before seeking alternative remedies, provided that by doing so they will not be deemed to have
waived or otherwise prejudiced any constitutional, statutory, or other legal rights that they may
have.” Id. art. 29, § I.3 (Page ID #405).
 No. 16-6183 Watford v. Jefferson Cty. Pub. Sch. et al. Page 4

B. Watford’s Discrimination and Retaliation Allegations

As alluded to earlier, Watford has thoroughly availed herself of grievance procedures and
EEOC charges. After the JCPS superintendent dismissed Watford’s aforementioned grievance,
see R. 44-7 (Superintendent Decision Grievance No. T-11-017-09-06) (Page ID #1172), Watford
sought to have the grievance arbitrated along with six other grievances she had filed before she
was terminated. R. 36-5 (Feb. 11, 2011 E-mail from Bethel to Partee) (Page ID #428–29).
Although the parties tentatively scheduled an arbitration to begin in July 2011, id., an EEOC
charge that Watford filed against JCPS1 on February 24, 2011, R. 34-3 (Charge No. 474-2011-
00452) (Page ID #151), caused the arbitration to be held in abeyance. R. 37-7 (Feb. 25, 2011
Letter from Meredith to Flaherty) (Page ID #610).

Disappointed that the arbitration would not proceed as scheduled, Watford filed another
EEOC charge, this time alleging that the arbitration was held in abeyance in retaliation for filing
an EEOC charge. R. 37-8 (Charge No. 24J-2011-00066) (Page ID #612). A little over one year
later, the EEOC issued a determination that there was “reasonable cause to believe that the
[JCPS] held [Watford’s] grievance proceedings in abeyance in retaliation for her filing a charge
of discrimination with the [EEOC].” R. 34-6 (Determination for Charge No. 24J-2011-00066)
(Page ID #207–08). After receiving this determination, Watford filed a related EEOC charge
against JCTA, stating that she “requested that JCPS grant [her] the right to pursue arbitration of
[her] grievances through . . . JCTA” but that her “request for arbitration was denied because
[she] had filed a complaint of discrimination.” R. 34-5 (Charge No. 470-2012-03069) (Page ID
#206).

Several months later, on January 31, 2013, the EEOC issued a dismissal and notice of
rights with respect to Watford’s initial EEOC charge, noting that its investigation into whether
JCPS violated Watford’s Title VII rights was inconclusive. R. 37-9 (Dismissal & Notice of
Rights Charge No. 474-2011-00452) (Page ID #614). Arbitration then commenced on April 23,

1
Although Watford initially named JCPS in her EEOC charge and district-court complaint, R. 34-3 (Charge
No. 474-2011-00452) (Page ID #151); R. 1 (Compl. at 1) (Page ID #1), the parties agreed to substitute JCBE “as the
proper party for the currently named Defendant, Jefferson County Public Schools.” R. 7 (Agreed Order) (Page ID
#35).
 No. 16-6183 Watford v. Jefferson Cty. Pub. Sch. et al. Page 5

2013. R. 38-4 (Arbitration Op. & Award at 2) (Page ID #649); see also R. 37-10 (Watford Dep.
at 126–27) (Page ID #617).

On April 24, 2013, the second day of arbitration, Watford filed her complaint in the
United States District Court for the Western District of Kentucky, naming JCPS as the
defendant,2 and alleging age discrimination, race discrimination, and retaliation in the form of
her termination and holding the arbitration in abeyance. R. 1 (Compl.) (Page ID #1–11). In
response, JCBE filed a motion to hold the arbitration in abeyance until the suit was resolved, and
on August 9, 2013, the arbitrator agreed to do so. R. 38-4 (Arbitration Op. & Award at 12) (Page
ID #659).

On October 25, 2013, Watford filed another EEOC charge, this time alleging that JCBE
retaliated against her by holding the arbitration in abeyance for filing a district-court complaint.3
R. 34-10 (Charge No. 470-2013-03310) (Page ID #216). The EEOC issued a notice of right to
sue with respect to this charge on December 31, 2014. R. 34-20 (Notice of Right to Sue within
90 Days Charge No. 470-2013-03310) (Page ID #265).

C. Procedural History

The underlying issues in this appeal arose when Watford filed a motion for partial
summary judgment, claiming that the evidence unequivocally showed that “JCPS retaliated
against [her] by holding her arbitration proceedings relating to her termination in abeyance” and
that “JCTA retaliated against [her] by acquiescing to the enforcement of Article 9, Section D.”
R. 34-1 (Pl.’s Mem. Law in Support of Her Mot. Partial Summ. J. at 8–9) (Page ID #146–47).
JCBE and JCTA individually opposed Watford’s motion and filed cross-motions for partial
summary judgment. R. 36 (JCBE’s Cross-Mot. Summ. J.) (Page ID #269–70); R. 38 (JCTA’s
Cross-Mot. Summ. J.) (Page ID #623–24). Of the view that the abeyance provision of the CBA

2
Watford amended her complaint to add JCTA and other retaliation counts on December 30, 2014. R. 21
(Am. Compl.) (Page ID #78–91).
3
It appears that Watford filed a similar charge against JCTA, see R. 34-1 (at 4) (Page ID #142), although
this charge is not in the record. However, Watford purports to have the notice of right to sue associated with this
charge, which the EEOC issued on September 29, 2014. R. 34-18 (Notice of Right to Sue Charge No. 470-2013-
03311) (Page ID #263).
 No. 16-6183 Watford v. Jefferson Cty. Pub. Sch. et al. Page 6

was not an adverse employment action, the district court awarded summary judgment against
Watford with respect to Counts IV (Retaliation—Grievance) and V (Retaliation—Arbitration) on
February 17, 2016. Watford v. Jefferson Cty. Pub. Sch., 163 F. Supp. 3d 456, 462–63 (W.D. Ky.
2016).

Several months after the district court issued its decision, Watford filed a motion for
voluntary dismissal with respect to the remaining counts, I through III (Age Discrimination,
Race Discrimination, and Retaliation—Termination), pursuant to Federal Rule of Civil
Procedure 41(a)(2). R. 60 (Pl.’s Mot. Voluntary Dismissal) (Page ID #1686). The district court
granted Watford’s motion and closed the case. R. 62 (Order Granting Pl.’s Mot. Voluntary
Dismissal) (Page ID #1694). Shortly thereafter, Watford filed her notice of appeal with respect
to the district court’s order on the motion and cross-motions for partial summary judgment.
R. 63 (Notice of Appeal) (Page ID #1695).

II. DISCUSSION

We begin by addressing whether JCTA is a labor organization and whether, as such, it is
exposed to liability under the anti-retaliation provisions. We then address whether JCBE and
JCTA’s conduct amounted to an adverse employment action, the central question on appeal.

A. JCTA’s Status as a Labor Organization

JCTA raises two issues apart from the central question of whether the abeyance provision
of the CBA constitutes an adverse employment action: (1) that we lack jurisdiction over JCTA
and (2) that it could not have retaliated against Watford because it advocated on her behalf and
did not seek to hold proceedings in abeyance.

First, and as a preliminary matter, JCTA argues that we lack jurisdiction because JCTA is
assertedly not a “labor organization” pursuant to 29 U.S.C. § 630 or 42 U.S.C. § 2000e. See
JCTA’s Br. at 1. However, the “labor organization” designation is located in the definitions
section of the ADEA and Title VII, a “provision that ‘does not speak in jurisdictional terms or
refer in any way to the jurisdiction of the district courts.’” See Arbaugh v. Y & H Corp.,
546 U.S. 500, 515–16 (2006) (quoting Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 394
 No. 16-6183 Watford v. Jefferson Cty. Pub. Sch. et al. Page 7

(1982)), discussed in Cobb v. Contract Transp., Inc., 452 F.3d 543, 549–50 (6th Cir. 2006). It is
therefore not a jurisdictional prerequisite. See id. Moreover, JCTA did not raise this argument
below, R. 38-1 (JCTA’s Mem. of Law in Opp’n to Pl.’s Mot. Partial Summ. J. & in Support of
Cross-Mot. for Partial Summ. J.) (Page ID #625–40), and so it is forfeited. See Lucaj v. FBI,
852 F.3d 541, 547 n.4 (6th Cir. 2017). As to the true jurisdictional question, we observe that the
district court had jurisdiction over this Title VII and ADEA case pursuant to 28 U.S.C. § 1331.
We have jurisdiction pursuant to 28 U.S.C. § 1291.

Second, whether or not JCTA advocated on behalf of Watford against JCBE’s
interpretation of the CBA, the fact remains that JCTA signed the CBA in the first place.
“A union’s role as a joint participant in the negotiation of a collective bargaining agreement has
been found sufficient to render it liable under Title VII where the contractual provisions were
discriminatory in operation or perpetuated the effects of past discrimination.” Farmer v. ARA
Servs., Inc., 660 F.2d 1096, 1104 (6th Cir. 1981) (citing, inter alia, Int’l Bhd. of Teamsters v.
United States, 431 U.S. 324, 348 n.30 (1977)). As “a joint participant in the negotiation of a
collective bargaining agreement,” id., JCTA is liable for agreeing to contractual provisions that
“discriminate against any member . . . because he has opposed any practice made an unlawful
employment practice by this subchapter, or because he has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under this subchapter.”
42 U.S.C. § 2000e-3(a) (2012); see also 29 U.S.C. § 623(d) (2012). Therefore, if the provisions
of the CBA discriminate on this retaliatory basis, JCTA is exposed to liability under Title VII
and the ADEA. We discuss below whether these provisions are retaliatory.

B. Adverse Employment Action

The dispositive question on appeal is straightforward: Is it a materially adverse action if
a CBA requires grievance proceedings to be held in abeyance upon the filing of an EEOC
charge? Watford argues that it is, see Appellant’s Br. at 13–14, a position that JCTA took in
prior stages of this litigation, JCTA’s Br. at 9. JCBE argues and the district court held that it is
not. See JCBE’s Br. at 10; Watford, 163 F. Supp. 3d at 463. In our view, the facts of this case
perfectly illustrate why holding grievance proceedings in abeyance, a step that has interminably
stalled procedures intended to “be processed as rapidly as possible,” R. 36-4 (CBA art. 29, § D)
 No. 16-6183 Watford v. Jefferson Cty. Pub. Sch. et al. Page 8

(Page ID #401–02), would dissuade a reasonable worker from making or supporting a charge of
discrimination.

In order to “prevent[] an employer from interfering (through retaliation) with an
employee’s efforts to secure or advance enforcement of [Title VII’s] basic guarantees,”
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 63 (2006), the act contains the
following anti-retaliation provision: “It shall be an unlawful employment practice for an
employer to discriminate against any of his employees . . . or for a labor organization to
discriminate against any member thereof . . . because he has opposed any practice made an
unlawful employment practice by this subchapter, or because he has made a charge, testified,
assisted, or participated in any manner in an investigation, proceeding, or hearing under this
subchapter.” 42 U.S.C. § 2000e-3(a). The ADEA contains a nearly identical anti-retaliation
provision, 29 U.S.C. § 623(d), which is functionally equivalent for purposes of this analysis. See
Fox v. Eagle Distrib. Co., 510 F.3d 587, 591 (6th Cir. 2007).

The focus of this appeal concerns whether JCBE and JCTA’s actions constitute an
adverse employment action: that is, an employer “discriminate[s] against any of his employees,”
42 U.S.C. § 2000e-3(a); 29 U.S.C. § 623(d), if its actions “would have been materially adverse to
a reasonable employee or job applicant.” Burlington N., 548 U.S. at 57. Significantly, “Title
VII’s substantive provision and its antiretaliation provision are not coterminous”; the scope of
the anti-retaliation provision is broader than the substantive provision. Id. at 67. In keeping with
this broader scope, we have held that terminating an in-house grievance proceeding because the
employee filed an EEOC charge “clearly constituted retaliation in violation of 29 U.S.C.
§ 623(d).” SunDance, 466 F.3d at 498 (citing EEOC v. Bd. of Governors of State Colls.
& Univs., 957 F.2d 424, 430 (7th Cir. 1992)); see also Trayling v. St. Joseph Cty. Emp’rs
Chapter of Local #2955, 953 F. Supp. 2d 793, 798 (W.D. Mich. 2013), appeal dismissed
751 F.3d 425 (6th Cir. 2014) (dismissing the appeal because the district court’s order was not a
final, appealable decision); Brinkley v. Bd. of Comm’rs, No. 2:12–CV–00469, 2013 WL 394158,
at *4–5 (S.D. Ohio Jan. 29, 2013); Wedding v. Univ. of Toledo, 884 F. Supp. 253, 255 (N.D.
Ohio 1995), rev’d on other grounds, 89 F.3d 316 (6th Cir. 1996).
 No. 16-6183 Watford v. Jefferson Cty. Pub. Sch. et al. Page 9

Because this court has characterized the termination of grievance proceedings as an
adverse employment action, SunDance, 466 F.3d at 498, the dispositive question in this case is
whether there is a material difference between terminating a grievance and holding it in
abeyance. We hold that there is not a material difference. Both provisions make the availability
of remedies contingent on not filing an EEOC charge. Singling out employees or union
members on this basis “discriminate[s]” against them because they “opposed any practice made
an unlawful employment practice by” Title VII and the ADEA. 42 U.S.C. § 2000e-3(a);
29 U.S.C. § 623(d). And “[a] benefit that is part and parcel of the employment relationship may
not be doled out in a discriminatory fashion, even if the employer would be free . . . not to
provide the benefit at all.” Hishon v. King & Spalding, 467 U.S. 69, 75 (1984), cited in Bd. of
Governors, 957 F.2d at 430.

The CBA’s effect on a reasonable employee is not softened merely because grievances
are held in abeyance rather than terminated. Employees avail themselves of the grievance
process at least in part because grievances are supposed to “be processed as rapidly as possible.”
R. 36-4 (CBA art. 29, § D) (Page ID #401–02). However, because the CBA requires grievances
to be held in abeyance upon the filing of an EEOC charge, id. (Page ID #402), rapidity was never
a realistic outcome for a charge-filing individual like Watford. Because the statute of limitations
for filing an EEOC charge ran three hundred days after Watford was terminated, she had three
hundred days to resolve her grievance before it would be held in abeyance. But on average,
individuals wait 399 days after filing a grievance to receive an arbitration award, William H.
Holley et al., The Labor Relations Process 569 & n.69 (11th ed. 2016) (citing Fed. Mediation &
Conciliation Serv., https://www.fmcs.gov/). And in Watford’s case, in part because proceedings
were held in abeyance, she waited 923 days until arbitration even began. Compare R. 40-4
(Termination Letter at 4) (Page ID #883), with R. 38-4 (Arbitration Op. & Award at 2) (Page ID
#649).

Thus, Watford was presented with a false binary: either choose a speedy, extrajudicial
resolution to her claims through the CBA’s grievance procedures or file an EEOC charge. Faced
with this choice, many reasonable employees would be dissuaded from filing an EEOC charge,
preferring instead to resolve their claims quickly and outside of the judicial process. Of course,
 No. 16-6183 Watford v. Jefferson Cty. Pub. Sch. et al. Page 10

we encourage alternative dispute resolution, but not at the expense of Title VII and the ADEA’s
guarantees. “A charge filed with the EEOC is not a complaint seeking relief. Rather it informs
the EEOC of possible employment discrimination.” SunDance, 466 F.3d at 499. Employment
practices that interfere with this information-gathering system run afoul of Title VII and the
ADEA. And because the CBA does just that, we hold that it violates the antiretaliatory
provisions of those statutes.

Defendants argue in response that Richardson v. Commission on Human Rights
& Opportunities, 532 F.3d 114 (2d Cir. 2008), should guide our decision in this case. We
disagree. With due respect to our sister circuit, Richardson applied an outdated definition of
“adverse employment action” that is inconsistent with Burlington Northern. Under Richardson,
the Second Circuit held that an employer may take “reasonable defensive measures” so long as
they “d[o] not affect the complainant’s work, working conditions, or compensation, and that its
control over the handling of claims against it served several essential purposes that have nothing
to do with retaliation, malice, or discrimination.” Richardson, 532 F.3d at 123 (internal
quotation marks and alterations omitted) (quoting United States v. N.Y.C. Transit Auth., 97 F.3d
672, 677 (2d Cir. 1996)). As such, Richardson’s focus was on whether “the election-of-remedies
provision [at issue] qualif[ied] as a ‘reasonable defensive measure.’” Id. at 124. Our focus, as
the Supreme Court has instructed, is broader. We ask whether a reasonable employee would be
dissuaded from filing a charge. As the Court observed, “the standard is tied to the challenged
retaliatory act, not the underlying conduct that forms the basis of the Title VII complaint.”
Burlington Northern, 548 U.S. at 68–69. Simply put, “the antiretaliation provision does not
confine the actions and harms it forbids to those that are related to employment or occur at the
workplace.” Id. at 57. And because the Richardson court so confined the forbidden actions and
harms, its reasoning does not guide our decision.

III. CONCLUSION

Title VII and the ADEA protect employees from employers and labor organizations who
would restrict the employees’ ability to file EEOC charges. In recognition of this principle, we
REVERSE the district court’s judgment and REMAND for further proceedings consistent with
this opinion.
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_________________

DISSENT
_________________

JULIA SMITH GIBBONS, Circuit Judge, dissenting. In this appeal, we are asked to
determine whether Joyce Watford suffered an adverse employment action for the purposes of
establishing retaliation under Title VII and the Age Discrimination in Employment Act (ADEA).
The alleged adverse action is a decision by the Jefferson County Board of Education (the Board)
to stay her grievance proceedings after she filed a charge of discrimination with the Equal
Employment Opportunity Commission (EEOC) (Count IV) and again after she filed suit in
federal court (Count V). The Board did so in accordance with the terms of a collective-
bargaining agreement (CBA) that governed the terms of Watford’s employment. The majority
concludes not only that the Board’s actions constituted an adverse employment action but also
that the CBA is facially retaliatory. It does so, in part, by treating the resolution of Watford’s
claims as a natural and logical extension of our decision in EEOC v. Sundance Rehabilitation
Corp., 466 F.3d 490 (6th Cir. 2006). I disagree with the weight of authority placed on Sundance,
the conclusion that Watford suffered an adverse employment action, and the finding that the
CBA is facially retaliatory. I would affirm the district court’s grant of summary judgment by
finding, as a matter of law, that staying a grievance when an employee files an EEOC charge or
discrimination lawsuit does not constitute retaliation under Title VII or the ADEA. Therefore, I
respectfully dissent.

I.

The majority begins with an assumption that the district court’s grant of summary
judgment is inconsistent with our decision in Sundance. It cites Sundance for the proposition
that terminating grievance proceedings because an employee files an EEOC charge clearly
constitutes retaliation. Although the Sundance court did opine that terminating grievance
proceedings constitutes an adverse employment action, the entire discussion is dicta.

Sundance involved an EEOC challenge to the terms of an employer’s separation
agreement. 466 F.3d at 495. The EEOC argued that the agreement was “facially” or “per se”
 No. 16-6183 Watford v. Jefferson Cty. Pub. Sch. et al. Page 12

retaliatory because it conditioned benefits on a promise not to file an EEOC charge against the
employer. Id. at 495–96. The court addressed this argument, in part, by looking to EEOC v.
Board of Governors of State Colleges & Universities, 957 F.2d 424 (7th Cir. 1992), which
involved a CBA provision allowing an employer to terminate grievance proceedings if the
employee sought relief in any other forum. See Sundance, 466 F.3d at 497–98. The Sundance
court opined that this constitutes an adverse action and was clearly retaliation because the
grievance proceedings were terminated when the plaintiff filed an EEOC charge. Id. The court,
however, concluded that Board of Governors was not “compelling precedent with respect to
[the] case.” Id. It distinguished Board of Governors as involving a policy that was actually
enforced, whereas the employer in Sundance had only offered a contract with a problematic
term. Id. The court emphasized that Board of Governors was “factually distinguishable and
inapplicable to this case.” Id. at 500–01. It ultimately concluded that offering the agreement
was not retaliatory without reaching the question of whether the provision, itself, constituted
retaliation. Id. at 500–01. For this reason, Sundance does not control our decision here. Instead,
we are faced with an issue of first impression.

Additionally, even if Sundance were directly applicable in this case, its analysis does not
compel the majority’s conclusion. The Board of Governors CBA discussed in Sundance gave
that employer the right to terminate an employee’s pending internal grievance proceeding if she
pursued relief in any other forum. See Sundance, 466 F.3d at 497–98 (discussing Board of
Governors, 957 F.2d at 426–30). Here, Watford’s internal grievance is not terminated but is
instead held in abeyance during the pendency of her EEOC claim. The majority asserts that
staying a grievance and terminating a grievance are not materially different because both “make
the availability of remedies contingent on not filing an EEOC charge.” But an ordering of
remedies—as is the case here—is not the same as an election of remedies. Yes, the CBA
requires that Watford resolve EEOC and judicial avenues of relief before finishing arbitration.
But filing an EEOC charge or a lawsuit does not eliminate her ability to pursue arbitration; that
is, it does not necessarily require her to forego one at the expense of the other. Instead, Watford
will have every opportunity to return to her internal grievance after pursuing her charge of
discrimination in another forum. Thus, even were Sundance’s discussion of Board of Governors
properly considered here, the terms of this CBA are fundamentally different.
 No. 16-6183 Watford v. Jefferson Cty. Pub. Sch. et al. Page 13

II.

Watford did not suffer an adverse employment action when her grievance was held in
abeyance pursuant to the CBA, and thus she should not succeed on her retaliation claims. In
order to benefit from the protections of the ADEA and Title VII, Watford must show that
defendants’ actions were “materially adverse to a reasonable employee.” Burlington N. & Santa
Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006). This “means that the employer’s actions must be
harmful to the point that they could well dissuade a reasonable worker from making or
supporting a charge of discrimination.” Id. The majority believes that the CBA will dissuade a
reasonable worker from making a charge of discrimination, whether it be filing a complaint with
the EEOC or filing a discrimination suit. I disagree.

First, the majority claims that Watford was forced to choose between “speedy,
extrajudicial resolution to her claims through the CBA’s grievance procedures” and pursuing an
EEOC charge. It supports this proposition with the fact that the average person waits 399 days to
receive an arbitration award. That fact, however, really has no import in this case. It says
nothing about the average time claims are resolved under this CBA. The majority also notes that
Watford waited 923 days, in part, because her grievance was held in abeyance. This ignores
important context as well as the terms of the CBA.

Under this CBA, employees will rarely have to make a choice about ordering their
remedies. The CBA provides a process for employee grievances with specific deadlines and a
stated intent that a grievance “be processed as rapidly as possible.” DE 34-4, Page ID 200–02.
This is not merely aspirational language. An employee must notify her supervisor of a grievance
within 15 days of any incident. After an attempt at an informal resolution, the employee can file
a written grievance, and a school administrator must respond within 3 days. From there, the
employee has 10 days to submit the grievance to the school’s superintendent. The
superintendent then has 12 days to hold a hearing and issue a written decision. At this point, the
decision of how to proceed is turned over to the union, which has 25 days to decide whether it
will seek arbitration of the grievance. Although the deadlines can be extended by mutual
agreement, and although the CBA does not establish a deadline for every step in this process (for
example, how long the supervisor has to attempt to informally resolve the initial grievance), the
 No. 16-6183 Watford v. Jefferson Cty. Pub. Sch. et al. Page 14

bulk of the process should be completed within 65 days. Thus, many employees won’t have to
worry about staying a grievance because it will be resolved well before the 300-day EEOC
deadline.

Watford’s own experience belies the majority’s claim about the impact of the CBA
provision on her decision. Watford filed her grievance regarding her termination on October 13,
2010. That grievance was denied by the superintendent 53 days later on December 6, 2010.
Arbitration was scheduled for July 2011, approximately one month before the EEOC deadline
for her termination grievance. Watford, however, filed her EEOC charge on February 24, 2011.
Thus, Watford made the decision that resulted in the stay of her grievance well ahead of the
EEOC deadline, knowing that it would result in her arbitration being held in abeyance. This was
not a decision forced on her as a result of timing—Watford had an opportunity for a timely
resolution of her grievance, but instead she chose to file with the EEOC without giving the
scheduled arbitration a chance.

Second, even if faced with the expiration of the 300-day EEOC deadline, a reasonable
employee would not give up her right to judicial resolution of a discrimination claim simply
because it means a delay in the resolution of her grievance. The procedures and protections
outlined in the CBA’s grievance provisions pale in comparison to the robust procedures and
remedies available to plaintiffs making ADEA and Title VII claims. For example, if a grievance
proceeds to arbitration, the employee is no longer in control of her grievance; the CBA provides
that it is the union, not the employee, who makes the decisions with respect to arbitration. All of
these factors, together, cut strongly against the suggestion that a reasonable person would do
anything but file an EEOC charge when faced with such a situation.

Finally, although the majority’s decision provides a considerable benefit to employees in
the short term—in that an employee has considerable leverage to pursue relief in the forum she
prefers and to change forums at her discretion—I question whether it will benefit employees in
the long run. There is no obligation for an employer to agree to an expedited grievance
procedure. Forcing employers to litigate on two fronts may lead them to abandon this method of
resolution altogether. Not only will that increase costs to all parties and delay resolution of
 No. 16-6183 Watford v. Jefferson Cty. Pub. Sch. et al. Page 15

claims, but it runs the risk of undermining arbitration as a method of resolving disputes in these
cases.

Because a reasonable employee in Watford’s situation would not be dissuaded from filing
an EEOC charge or discrimination suit, Watford did not suffer an adverse employment action
when the Board stayed her grievance proceedings pursuant to the terms of the CBA.
Accordingly, the district court was correct to find that she cannot succeed on her retaliation
claims. We should affirm the decision of the district court on this basis.

III.

Finally, the majority goes too far in determining that the CBA provision is “retaliatory on
its face.” This is, perhaps, the most problematic holding because it is made entirely on the
presumption that Sundance controls. Although the district court recognized that a facially
retaliatory policy is direct evidence of discriminatory intent, it never decided whether the policy
was facially retaliatory or whether the CBA constituted direct evidence of retaliation. Instead,
the district court limited its holding to the question of an adverse employment action, an element
applicable to both the McDonnell Douglas burden-shifting and direct-evidence approaches to
establishing retaliation. We need not decide anything more than whether Watford suffered an
adverse employment action. I would find that she did not as a matter of law. In light of this, she
cannot succeed on her retaliation claims, and all other claims have been voluntarily dismissed.
I would therefore remand to the district court for entry of judgment in favor of the defendants.