In Mathews v. Denver Newspaper Agency, Case No. 09-1233 (10th Cir. March 16, 2011), the Tenth Circuit Court of Appeals held that an arbitration decision did not preclude plaintiff from subsequently litigating discrimination claims in court.  The plaintiff was demoted after a complaint of harassment was made against him, and he subsequently challenged his demotion under his collective bargaining agreement’s non-discrimination clause.  The CBA’s non-discrimination clause also referred to state and federal laws prohibiting such discrimination.  The CBA’s dispute resolution procedure provided that disputes under the CBA, “including all disputes involving discharge or discipline . . . shall be submitted to final and binding arbitration.”  Notwithstanding that language, the parties agreed that employees could opt to litigate disputes in a judicial forum, and plaintiff Mathews had, in fact, previously done so. 

In arbitration, the parties litigated plaintiff’s claimed violation of the CBA’s non-discrimination clause as if it were a federal discrimination action, citing and relying on judicial authority construing Title VII.  The arbitrator analyzed plaintiff’s claims under such authority and rejected them.  Plaintiff later filed suit in district court, alleging discrimination under Title VII, but the court found that the CBA language constituted a waiver of plaintiff’s right to seek judicial relief.  The Tenth Circuit reversed on the basis of the Supreme Court’s 1974 decision in Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974), where the Court noted that “mere resort to the arbitral forum to enforce contractual rights” does not constitute a waiver of a cause action under Title VII. 

Further, the court held that where a CBA provides that an arbitrator is empowered “to resolve only questions of contractual  rights” under a CBA, such decisions could not preclude an employee from subsequently litigating statutory claims, even if such claims were “similar to, or duplicative of, the substantive rights secured by Title VII.”  Gardner-Denver itself involved a similar scenario to the Mathews case, with a plaintiff losing a grievance under the CBA’s “just cause” provision and later bringing a Title VII action.  The Tenth Circuit noted that, just like in Gardner-Denver, the CBA in Mathews did not authorize the arbitrator to resolve questions of statutory rights.  While the Tenth Circuit noted that Supreme Court precedent since Gardner-Denver has indicated statutory claims may be waived individually or through collective bargaining agreements, such waivers will only be found where they are “clear and unmistakable.”  The CBA language here did not meet the “clear and unmistakable” standard, according to the Tenth Circuit.  Instead, the language merely stated that the non-discrimination rights under the CBA were co-extensive with those protected by federal law.  The court further pointed out that the CBA limited the arbitrator’s authority to resolution of the dispute submitted to him or her, and that the “dispute” in Mathews’ case did not entail a statutory claim. As a result, by definition, the arbitrator’s ruling could not preclude a subsequent statutory claim. 

The take away from Mathews is that a generally-worded non-discrimination clause, even one that expressly mentions statutory discrimination claims, will not preclude a grievant from subsequently litigating a statutory discrimination claim.  Instead, only CBA language that clearly and expressly provides for arbitration as the sole and exclusive remedy for violations of specific statutes will result in waiver of an employee’s right to later sue under those statutes.

This entry was written by Noah Lipschultz.