It often happens that employees who complain about workplace discrimination don't actually have a viable discrimination claim, but the employer's vindictive response to the internal discrimination complaint hands the plaintiff a retaliation case on a silver platter. That is what happened here.
The case is Vogel v. CA, Inc., a summary order issued on October 25. Vogel worked for a computer software company. At some point, he was recruited by Kozak to join the company's India Service Provider Team, eventually answering to Perlman. In early 2010, Vogel complained that he was being treated differently because of his race. Afterward, Perlman treated him badly and Vogel was fired because he did not meet his sales quotas. Here is what the Second Circuit (Lohier, Livingston and Rakoff [D.J.]) does with the case:
1. Vogel has no underlying discrimination claim even though supervisors uttered racial comments. While Kozak said that "Indians would rather work with Indians," Kozak said this shortly before he recruited Vogel to work on the India Service Provider Team, undercutting any inference of discriminatory intent. And it was Perlman and not Kozak who allegedly treated Vogel like garbage until the date Vogel was fired. While Perlman said that "Vogel does not work well and play well with the guys in India," that proves nothing because the record shows that Vogel had a tense working relationship with his team members in India. Summary judgment is affirmed on the discrimination claim.
2. The retaliation claim is a horse of a different colour. This is what I mean when I say the cover up is worse than the crime. Think of Watergate. Nixon's people broke into the Democratic headquarters. That was bad. But it was the cover-up -- where Nixon obstructed the criminal investigation into the break-in -- that led to Nixon's resignation, spending the final years of his life in New Jersey. What happened to Vogel was no Watergate, but there will be a trial in this case, and that's bad for the defendant. The issue is whether Vogel can prove an adverse employment action, which exists if the employer's response to his good-faith discrimination complaint would dissuade a reasonable employee from complaining about discrimination in the future. Perlman singled out Vogel for hostile treatment, harassing him on conference calls, making jokes about him in front of colleagues, removing him from meetings, yelled at him, called him names, told him his actual performance was irrelevant and repeatedly said he did not want Vogel on his team. Vogel was fired 11 months after complaining about discrimination. The Court of Appeals says this is enough for a retaliation claim, as Vogel testified that Perlman kicked him around shortly after he complained about the discrimination.
This is interesting reasoning, as many claims that management hounded the plaintiff following a discrimination claim fail on the adverse action element of the prima facie case. But if you put an employee through the wringer, that can be enough to dissuade a reasonable employee from complaining.
Collective bargaining agreements sometime contain language that says that any legal disputes between workers and management have to be handled in arbitration, not court. Assuming the employees even know the CBA says this, they probably give it little thought until they decide to file a discrimination lawsuit against the employer. When they make that decision, their lawyer will tell them that the CBA's arbitration agreement says they cannot go to court and have to proceed in arbitration. For various reasons, most plaintiffs' lawyers prefer court to arbitration, and defendants prefer arbitration, or they would not fight so hard to keep these claims out of court. But the arbitration language has to be done right, or else the employer has to defend the case in court. This arbitration clause was not good enough, and the plaintiffs win the appeal.
The case is Lawrence v. Sol G. Atlas Realty Co., decided on October 28. The courtroom guarantees certain procedures and protections that arbitration cannot provide. That's why arbitration agreements have to be exquisitely drafted, to ensure the employees know exactly what they're getting into when they ratify the CBA. The Supreme Court has therefore said that in order for a mandatory arbitration agreement in a CBA to prevent the employee to litigating her statutory claims in court (like Title VII or the ADEA), "the inclusion of such claims must be unmistakable, so that the wording is not susceptible to a contrary reading." To put it in layman's terms, the arbitration provisions of the CBA must be as clear as the river stream on a winter's day and written so that normal people can understand it.
This CBA did not satisfy that standard. This is what it says:
There shall be no discrimination against any present or future employee by reason of race, creed, color, age, disability of an individual in accordance with applicable law, national origin, sex, sexual orientation, union membership, or any characteristic protected by law. Any disputes under this provision shall be subject to the grievance and arbitration procedure (Article V).
Article V is the mechanism of arbitration, which says the employee must first file a grievance with management, and that if the grievance cannot be settled, it goes to the Office of the Contract Administrator. It goes on to say that “[t]he procedure herein with respect to matters over which a Contract Arbitrator has jurisdiction shall be the sole and exclusive method for the determination of all such issues."
Since this arbitration clause is too general and does not say that claims that might be brought under Title VII, Section 1981 or the ADEA must be arbitrated, its language was not "clear and unmistakable" to deprive employees of their right to file a lawsuit. While the "No Discrimination" provision prohibits discrimination and compels arbitration of "any disputes under that provision," that only creates a contractual right of employees to be free from unlawful discrimination that is subject to arbitration. But "a contractual dispute is not the same thing as a statutory claim,. even if the issues involved are coextensive." Indeed, the Second Circuit (Jacobs, Livingston and Rakoff [D.J.]) says, "the No Discrimination provision may plausibly be interpreted to require arbitration of contractual disputes only." But it says nothing about "claims" or "causes of action" and cites no statutes.
Stephen Bergstein is a civil rights lawyer in Orange County, N.Y. He has briefed or argued more than 200 appeals in the state and federal courts.