DEIN, United States Magistrate Judge.
The plaintiff, Pricilla de Sousa Silva ("Silva"), is employed by the defendant Pioneer Janitorial Services, Inc. ("Pioneer" or the "Employer") and is a member of the plaintiff-intervenor Service Employees International Union, Local 615 (the "Union"). Silva contends that her supervisor sexually harassed her, as a result of which she filed a grievance. The Union, the only party with the authority to do so, did not pursue the grievance through arbitration. Silva then filed a complaint with the Massachusetts Commission Against Discrimination ("MCAD"), and eventually commenced an action in Superior Court, raising claims of sexual harassment and retaliation under Mass. Gen. Laws ch. 151B (Counts I and II), and negligent hiring, supervision and/or retention (Count III). The defendant Employer subsequently removed the action to this court on the basis of federal question jurisdiction.
This matter is presently before the court on Pioneer's Motion to Dismiss the complaint. Relying on 14 Penn Plaza LLC v.
The following facts are undisputed unless otherwise indicated, and are limited to those which are relevant to the motion to dismiss.
Pioneer provides janitorial services at various locales, including the Berklee School of Music in Boston's Back Bay. Complaint (Docket No. 1-3) ("Compl.") ¶¶ 2, 5. Silva began working as a janitor there in 2002, and is a member of Local 615 of the Service Employees International Union. Id. ¶ 5. Mick da Silva became her supervisor in 2006. Id. ¶ 7. According to Silva, he engaged in egregious sexual harassment directed to her on a regular basis over an extended period of time. Id. ¶¶ 7-15.
In December 2008, Silva was suspended for three days, allegedly for not completing work. Id. ¶ 27. On or about December 15, 2008, Silva filed a grievance through the Union, alleging, in part, sexual harassment.
The CBA prohibits discrimination. In particular, it provides in relevant part in Article 21, the "No Discrimination" provision, as follows:
(Emphasis added).
The "Grievance Procedure" is detailed in Article 37 of the CBA. It requires, except in the case of a termination or suspension, that a written grievance be submitted to the Employer "within fourteen (14) calendar days after the grievant knew or had reason to know of the incident giving rise to the grievance" or the grievance will not be considered. CBA § 37.3. The CBA details a multi-step procedure in § 37.3 as follows:
Step 1 provides for an informal resolution procedure. However, the employee must submit a written grievance within 14 days of the incident, and the Employer must submit a written answer within 10 days. The Step 1 grievance is to be presented to the designated immediate supervisor.
Step 2 requires that another written grievance be presented to the appropriate site manager or designated supervisor of the Employer within 10 calendar days after the Employer's answer or the date when the answer was due. The Employer "may hold a meeting on the grievance" and is to provide a written answer to the Step 2 grievance "within ten (10) calendar days after a meeting was held or after receipt of the grievance if no meeting was held." In the instant case, the Union apparently bypassed the Step 1 process and requested a Step 2 hearing. See Supplemental Affidavit of Frank Gello (Docket No. 32-1) ("Supp. Aff. Gello") at ¶ 4. It does not appear that Pioneer provided any written response to Silva's Grievance at any stage. Pioneer contends that although the Union requested a Step 2 meeting, no meeting with respect to Silva's December 15th Grievance was ever held, as a meeting scheduled for December 29, 2008 was cancelled, allegedly by the Union. Id. ¶¶ 3-5. According to Pioneer, it heard nothing further about the December Grievance, and assumed that "the Union `dropped' the matter in the sense that it took the grievance no further and Pioneer's denial was upheld." Id. ¶ 5.
Step 3 of the grievance procedure requires that the grievance again be presented to the Employer, this time to the Labor Relations, Human Resource Department or the Principal Officer of the Employer, or his/her designee, within 10 calendar days after the Employer's response to the Step 2 grievance or the date when the response was due. In Step 3, the "Employer shall hold a meeting on the grievance within ten (10) calendar days after receiving it" and is to provide a written response within 10 days after either the meeting or the date when the grievance was received. As noted above, in the instant case the Union did nothing more than request a Step 2 hearing, which was never held.
If no resolution is reached at Step 3, the grievance procedure provides in relevant part as follows:
(Emphasis added). The parties agree that only the Union could refer the matter to arbitration and that Silva could not have acted without the Union. As noted above, the Union did not pursue any arbitration on Silva's behalf.
In addition to the prohibition against sexual harassment in the CBA, Pioneer also had a sexual harassment policy.
Id. at Art. VI (emphasis added).
As noted above, Silva filed her Grievance on or about December 15, 2008 and it never reached the Step 2 hearing stage, if it was addressed at all. On or about July 28, 2009, she filed a discrimination charge with the MCAD which was subsequently dismissed. On June 2, 2010, Silva filed her complaint in the Massachusetts Suffolk Superior Court. Compl. Pioneer removed the case to this court on July 28, 2010 on the grounds that the interpretation of the CBA is governed by federal law. Notice of Removal (Docket No. 1) ¶ 4. The Union intervened on September 22, 2010. Intervenor Compl. (Docket No. 15).
It is Pioneer's contention that the complaint must be dismissed because Silva waived her right to litigate by filing a grievance containing a claim of sexual harassment and, thereby, electing to proceed under the CBA instead of through litigation. Pioneer Mem. in Supp. of Mot. to Dismiss (Docket No. 6) at 1.
Additional facts will be provided below where appropriate.
In support of its motion to dismiss, Pioneer relies on the United States Supreme Court's decision in 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 129 S.Ct. 1456, 173 L.Ed.2d 398 (2009). Therein, the Court held "that a collective-bargaining agreement that clearly and unmistakably requires union members to arbitrate [employment discrimination] claims is enforceable as a matter of law." Id. at
In the instant case, Pioneer contends that the language of the CBA is clear and unmistakable, and provides that once an employee elects to proceed by way of a grievance, the employee has waived his or her right to have a discrimination claim decided in the courts.
As detailed above, in order for Silva's waiver of her right to have her discrimination claim resolved in a judicial forum to be enforceable, the waiver must be "clear and unmistakable." See Lemieux v. City of Holyoke, 740 F.Supp.2d 246, 259-60 (D.Mass.2010), and cases cited. See also Warfield v. Beth Israel Deaconess Med. Ctr., Inc., 454 Mass. 390, 398, 910 N.E.2d 317, 325 (2009) ("Consistent with the public policy against workplace discrimination reflected in G.L. c. 151B, we conclude that an employment contract containing an agreement by the employee to limit or waive any of the rights or remedies conferred by G.L. c. 151B is enforceable only if such an agreement is stated in clear and unmistakable terms."). The parties all agree that this court has jurisdiction to determine whether the CBA at issue meets this standard.
As an initial matter, this court must address Pioneer's argument that the CBA does not, in fact, involve any waiver, since Silva has the clear option of litigating her discrimination claim instead of filing a grievance. See Pioneer's Reply at 8 ("The election of remedies provision explicitly preserved Plaintiff's right to pursue her discrimination claims through ... any state or federal court action" and, therefore, "does not waive any of Plaintiff's rights — whether substantive or procedural."). This argument begs the question. The issue is whether the CBA clearly and unmistakably explains the consequences of adopting the grievance route. It does not matter that the CBA provides that Silva clearly has the option to pursue a discrimination claim in court. Taken to its logical conclusion, Pioneer's argument is that as long as an employee has the express right to sue in court, the employee can be tricked into waiving his or her right to sue by being given an unclear alternative. Such an argument obviously makes a mockery of the Penn Plaza requirement that the waiver must be clear and unmistakable. The fact that Silva was given an alternative to proceed with litigation does not eliminate the need for the waiver of such right to be clear and unmistakable.
As quoted above, Article 21.3 of the CBA gives an employee the right to pursue discrimination claims "either (1) through the grievance and arbitration procedure (Article 37), or (2) through any other forum available at law, including, but not limited to, any state or federal court action...."
The CBA refers to the "grievance and arbitration procedure," (emphasis added), not just to the filing of a grievance. This leaves the impression that the discrimination claim will be heard on the merits in at least an arbitration forum if that alternative is selected. The inference is further supported by Article 21.4, which equates the arbitration and court proceedings and indicates that the employee is being given an option of proceeding in either an arbitration or judicial forum so that all issues are decided together and the parties' efforts are not duplicated, but rather resolved in "a single forum." However, nothing in the CBA alerts the employee that only one of the two possible forums guarantees that the discrimination claim will be heard at all.
Moreover, the reference to "Article 37" as being the "grievance and arbitration procedure" buttresses the implication that an employee selecting that option would have his or her claim proceed through arbitration if necessary. In fact, Article 37 of the CBA is entitled simply "Grievance Procedure." The additional language in Article 21.3 specifying grievance and arbitration would easily lead an employee to understand that all four steps of the "grievance and arbitration procedure" would be available to resolve the dispute.
If Pioneer had intended that the mere filing of a grievance would be sufficient to cut off an employee's right to litigate discrimination claims, it clearly could have done so. For example, in Schram v. City of Minneapolis, Civil No. 09-909(JSM), 2010 WL 4193077 (D.Minn. Mar. 16, 2010) (slip op.), the court addressed a CBA which provided, in relevant part,
Id. at *3. Since Pioneer failed to make it clear that the filing of a written grievance alone, without the opportunity to proceed to arbitration, would terminate an employee's right to seek a judicial resolution of his or her claim, Silva is not precluded from proceeding with this litigation.
Even assuming, arguendo, that the CBA's waiver provision is clear and unmistakable, it is unenforceable as it deprived
Id. at 1234, and cases cited.
Courts addressing the issue post-Penn Plaza have reached the same result and have held that where the submission of a statutory claim to arbitration is exclusively within the province of the union and the union declines to pursue the matter, the waiver of an employee's right to a judicial forum is unenforceable. See, e.g., Morris v. Temco Serv. Indus., Inc., No. 09 Civ. 6194(WHP), 2010 WL 3291810, at *5-6 (S.D.N.Y. Aug. 12, 2010) (slip op.) (where union elected to abandon discrimination claim, the CBA's arbitration provision may not be enforced as it operates as a "substantive waiver" of employee's statutorily created rights), and cases cited; Kravar v. Triangle Servs., Inc., No. 1:06-cv-07858-RJH, 2009 WL 1392595, at *3 (S.D.N.Y. May 19, 2009) ("In view of the Supreme Court's analysis in Pyett, 129 S.Ct. at 1474, and Gilmer, 500 U.S. at 29, 111 S.Ct. 1647, there is little question that if Ms. Kravar's union prevented her from arbitrating her disability discrimination claims, the CBA's arbitration provision may not be enforced as to her. The Court finds that this in fact occurred."). See also Schram, 2010 WL 4193077 at *8-9 (finding that terminated employee who was denied a hearing on the merits pursuant to a grievance procedure controlled by the union was denied his due process rights). Similarly, in the instant case, the Union had exclusive control over
In her sur-reply brief filed after oral argument, Silva questions whether this case was properly removed on the grounds of federal question jurisdiction. This belated challenge to this court's jurisdiction is without merit for a number of reasons. For example, it is undisputed that this court has subject matter jurisdiction over the Union's complaint for declaratory judgment. Consequently, this court may exercise supplemental jurisdiction over the original complaint. 28 U.S.C. § 1367(a); Balog v. Jeff Bryan Transp. Ltd., No. CIV-10-505-D, 2010 WL 3075288, at *4 (W.D.Okla. Aug. 5, 2010) (exercising supplemental jurisdiction over original complaint on basis of original jurisdiction over intervenor's claim).
For all the reasons detailed herein, Pioneer's Motion to Dismiss (Docket No. 5) is DENIED.