Table of Contents

Table of Authorities......................................................................................... iii

Statement of Interest......................................................................................... 1

Statement of the Issue....................................................................................... 2

Statement of the Case....................................................................................... 2

A. Statement of Facts................................................................................... 2

B. District Court’s Opinion......................................................................... 5

Summary of Argument..................................................................................... 7

Argument.......................................................................................................... 9

Suspending arbitration while an EEOC charge is pending is a materially

adverse action under the ADEA’s anti-retaliation provision because it could dissuade a reasonable employee from filing a charge..................................................... 9

A. The district court applied the wrong legal standard................................ 9

B. The district court erroneously assessed the impact of holding arbitration

in abeyance ........................................................................................... 11

1. Impact on employees........................................................................ 11

2. Impact on employers........................................................................ 19

C. The district court wrongly treated the filing of a charge as an election of remedies 20

Conclusion...................................................................................................... 22

Addendum: Designation of Documents

Certificate of Compliance

Certificate of Service

Table of Authorities

Cases

14 Penn Plaza LLC v. Pyett, 556 U.S. 247 (2009).......................................... 20

Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974)................................... 19

Blizzard v. Marion Tech. Coll., 698 F.3d 275 (6th Cir. 2012)........................... 5

Brinkley v. Bd. of Comm’rs of Franklin Cty.,

No. 2:12-CV-00469, 2013 WL 394158 (S.D. Ohio Jan. 29, 2013)................. 15

Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53 (2006)............ 5, 10-11, 14,

16, 18, 19, 22

Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001).................................. 20

EEOC v. Bd. of Governors of State Colls. & Univs.,

957 F.2d 424 (7th Cir. 1992)........................................... 6, 7, 13, 14-15, 17, 18

EEOC v. Chrysler Grp., LLC, No. 08-C-1067,

2011 WL 693642 (E.D. Wis. Feb. 17, 2011)............................................. 16-17

EEOC v. Kimberly-Clark Corp., 511 F.2d 1352 (6th Cir. 1975)..................... 21

EEOC v. Shell Oil Co., 466 U.S. 54 (1984)..................................................... 21

EEOC v. Sundance Rehab. Corp., 466 F.3d 490 (6th Cir. 2006)..... 7, 17-19, 21

EEOC v. Waffle House, Inc., 534 U.S. 279 (2002).......................................... 21

Fox v. Eagle Dist. Co., 510 F.3d 587 (6th Cir. 2007).................................... 1-2

Gen. Tel. Co. of the N.W., Inc. v. EEOC, 446 U.S. 318 (1980)........................ 21

Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991)......................... 20

Hollins v. Atl. Co., 188 F.3d 652 (6th Cir. 1999)............................................ 10

New England Health Care Emps. Union v. R.I. Legal Servs.,

273 F.3d 425 (1st Cir. 2001).......................................................................... 17

Oscar Mayer & Co. v. Evans, 441 U.S. 750 (1979)......................................... 12

Portland State Univ. Chapter of the Am. Ass’n of Univ. Profs.

v. Portland State Univ., 291 P.3d 658 (Or. 2012) (en banc)............................ 15

Richardson v. Comm’n on Human Rights & Opportunities,

532 F.3d 114 (2d Cir. 2008)....................................................................... 6, 16

Robinson v. Shell Oil Co., 519 U.S. 337 (1997)......................................... 11,14

Spengler v. Worthington Cylinders, 615 F.3d 481 (6th Cir. 2010)......... 9, 10, 11

Trayling v. St. Joseph Cty. Emp’rs Chapter of Local #2955,

953 F. Supp. 2d 793 (W.D. Mich. 2013)........................................................ 15

United States v. New York City Transit Auth., 97 F.3d 672 (2d Cir. 1996)....... 16

Wedding v. Univ. of Toledo, 884 F. Supp. 253 (N.D. Ohio 1995),

rev’d on other grounds, 89 F.3d 316 (6th Cir. 1996)........................... 12, 15-16

White v. Burlington N. & Santa Fe Ry., 364 F.3d 789 (6th Cir. 2004)

(en banc), overruled in relevant part, 548 U.S. 53 (2006)................................ 18

Statutes

Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq...................... 1

§ 623(a)................................................................................................. 10

§ 623(d)......................................................................................... 1, 9, 10

§ 626(b)................................................................................................. 21

§ 626(d)(1)............................................................................................ 13

§ 626(e)................................................................................................. 13

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.................. 1

Rules and Regulations

29 C.F.R. § 1601.74....................................................................................... 13

Fed. R. App. P. 29(a)........................................................................................ 2

Other Authority

EEOC Enforcement Guidance on Retaliation and Related Issues,

Notice No. 915.004, 2016 WL 4688886 (Aug. 25, 2015)..................... 9, 12, 18

William H. Holley, et al., The Labor Relations Process (2016)....................... 13

Statement of Interest

The Equal Employment Opportunity Commission (“EEOC”) is charged by Congress with interpreting, administering, and enforcing the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. The ADEA bars employers and unions from retaliating because an individual has “made a charge . . . or participated in any manner in an investigation, proceeding, or litigation under this chapter.” Id. § 623(d).

Watford’s employer terminated her and she filed a grievance with her union. The grievance proceeded to arbitration. Watford filed a discrimination charge with the EEOC and the employer suspended arbitration pending resolution of the EEOC charge. Although the employer resumed arbitration when the EEOC issued a notice of right to sue, it suspended arbitration once again when Watford filed the instant lawsuit. Arbitration is still on hold, six years after Watford’s termination.

Because the suspension of arbitration upon the filing of an EEOC charge might deter a reasonable employee from filing, the EEOC believes that such conduct is a materially adverse action under the ADEA’s anti-retaliation provision.[1] The EEOC has a strong interest in seeing that employees are not deterred from filing discrimination charges and, accordingly, offers its views to the Court. The EEOC files this brief pursuant to Rule 29(a) of the Federal Rules of Appellate Procedure.

Statement of the Issue

Is holding arbitration in abeyance upon the filing of an EEOC charge a materially adverse action under the ADEA’s anti-retaliation provision because it could dissuade a reasonable employee from filing a charge?

Statement of the Case

A. Statement of Facts

Jefferson County Public Schools (JCPS) fired Joyce Watson from her teaching position in October 2010. R.40-4, Berman Ltr., Pg. ID #880. Watson filed a grievance with the Jefferson County Teachers’ Association alleging contractual violations as well as discrimination. R.44-7, Grievance, Pg. ID #1171 (citing CBA Arts. 5, 9); R.34-4, CBA Art. 5, Pg. ID #159 (prohibiting discrimination); R.34-4, CBA Art. 9, Pg. ID #164 (no termination without just cause). Pursuant to its collective bargaining agreement with Jefferson County Board of Education, the union pursued a several-stage grievance procedure that culminated in arbitration.

The parties arranged for arbitration to be held in July 2011, 266 days after Watford’s termination. R.36-5, Bethel Email, Pg. ID #428. In February 2011, Watson filed an EEOC charge against JCPS[2] alleging age, race, and sex discrimination. R.34-3, Charge 00452, Pg. ID #151. The collective bargaining agreement provides that if an employee “opts to pursue a complaint using another agency, the parties agree to hold the grievance in abeyance until the agency complaint is resolved.” R.34-4, CBA Art. 9(D), Pg. ID #165. Relying upon this provision, the Board of Education notified the union that arbitration “will be held in abeyance until the outcome of the EEOC complaint filed by Ms. Watford is resolved.” R.36-7, Meredith Ltr., Pg. ID #433.

Watson filed two more EEOC charges, one against JCPS and one against the union, alleging that the suspension of arbitration constituted retaliation. R.34-5, Union Charge 03069, Pg. ID #206; R.34-6, JCPS Charge 00066 Determ., Pg. ID #207. The EEOC found reasonable cause to believe that JCPS had retaliated against Watford by suspending arbitration pending the processing of her first charge. R.34-6, JCPS Charge. 00066 Determ., Pg. ID #207. Conciliation failed in March 2013. R.34-9, EEOC Notice 00066, Pg. ID #214.

Separately, in January 2013, two years after she filed her initial charge, the EEOC dismissed it and issued a notice of right to sue. R.34-8, Dismissal 00452, Pg. ID #213. The parties scheduled a three-day arbitration hearing for April 2013. That date was thirty months after Watford’s termination and twenty-one months after arbitration had originally been scheduled. R.34-10, Charge 03310, Pg. ID #216.

On the second day of the hearing, Watford filed a complaint against JCPS[3] in federal district court alleging discrimination and retaliation for the suspension of arbitration. She filed this complaint 83 days after receiving the notice of right to sue on her substantive discrimination charge, seven days short of the statutory deadline. R.1, Compl., Pg. ID #1. Once again, the Board of Education suspended arbitration. R.34-10, Charge 03310, Pg. ID #216.

Watford filed two more EEOC charges, one against the Board of Education and one against the union, alleging that this suspension also constituted retaliation. Id.; R.38-1, Memo, Pg. ID #629. The EEOC once again found reasonable cause, conciliation again failed, and the Department of Justice issued a notice of right to sue. R.34-20, DOJ Notice, Pg. ID #265. Watford amended her complaint to include retaliation for the filing of her lawsuit and added the union as a defendant. R.21, Am. Compl., Pg. ID #78, 88. All parties moved for partial summary judgment on the issue of whether suspending the arbitration constituted illegal retaliation in violation of the ADEA and Title VII. R.34, Watford Motion, Pg. ID #137; R.37, Bd. of Ed. Motion, Pg. ID #446; R.38, Union Motion, Pg. ID #623.

B. District Court’s Opinion

The district court held that an employer’s stay of arbitration pending disposition of an EEOC charge or related litigation is not actionable under the ADEA’s anti-retaliation provision.^{^[4]} R.49, Slip Op., Pg. ID #1233, 1237. In assessing Watford’s claims of retaliation, the court did not cite the correct standard for determining a materially adverse action under the anti-retaliation provision, as articulated in Burlington Northern & Santa Fe Railway v. White: Whether “the employer’s actions [are] harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.” 548 U.S. 53, 57 (2006) (Title VII case); accord Blizzard v. Marion Tech. Coll., 698 F.3d 275, 290 (6th Cir. 2012) (ADEA case applying Burlington Northern standard). Rather, it applied law relevant only to substantive discrimination claims, analyzing the existence of an “adverse employment action” that consists of “ʻa materially adverse change in the terms and conditions of plaintiff’s employment.’” R.49, Slip Op., Pg. ID #1234 (citation omitted).

The court characterized the collective bargaining agreement provision at issue as “[a]n election-of-remedies provision” designed to “streamline[ ] dispute resolution.” Id. at Pg. ID #1236. “It avoids the expense and uncertainty of having the same issue decided in two different proceedings,” the court explained. “It puts no restriction on an employee’s freedom to file an EEOC complaint or a lawsuit. ‘It only requires that the employee make a concrete choice, at a specific time, between filing a [claim with the EEOC] and having the union pursue his or her grievance in arbitration.’ Furthermore, this choice is only required if the grievance process extends far enough to threaten the statute of limitations for filing an EEOC claim.” Id. (quoting Richardson v. Comm’n on Human Rights & Opportunities, 532 F.3d 114, 124 (2d Cir. 2008)).

The court suggested that a contrary ruling might harm employees. Requiring an employer to arbitrate after an employee files a charge might encourage employers to remove arbitration from future collective bargaining agreements, the court reasoned. Id. at Pg. ID #1237 (citing EEOC v. Bd. of Governors of State Colls. & Univs., 957 F.2d 424, 432 (7th Cir. 1992) (Manion, J., concurring)). Thus, the court said, “allowing an employer and union to define the scope of the contractual right to arbitration is the prudent approach.” Id.

Finally, the court declined to interpret EEOC v. Sundance Rehabilitation Corp., 466 F.3d 490 (6th Cir. 2006), as suggesting that this Court, like the Seventh Circuit, would prohibit employers from terminating arbitration upon the filing of an EEOC charge. Id. at Pg. ID #1239-40 (citing Bd. of Governors, 975 F.2d 424). “Sundance merely discussed Board of Governors without accepting or rejecting its holding,” the court said. Id. at Pg. ID #1239.

The court denied Watford’s motion for partial summary judgment and granted defendants’ cross-motions. Id. at Pg. ID #1242. The court also declined Watford’s request to stay this litigation and compel arbitration. Id. Arbitration is still on hold, six years after Watford’s termination.

Summary of Argument

The district court analyzed this case under the wrong legal standard. Contrary to the court’s belief that Watford could only prove retaliation by establishing a materially adverse change in the terms and conditions of her employment, controlling law is more expansive, holding that she may establish retaliation by showing that the challenged action could deter a reasonable employee from exercising her statutory rights. Suspending arbitration pending resolution of an EEOC charge would have this effect because the primary benefit of arbitration is a speedy resolution to a complaint. An employee who files a charge at the outset of arbitration might find her arbitration delayed for many years, as in this case. Conversely, an employee who delays filing a charge so that arbitration may go forward is likely to find that the arbitration has not concluded by the statutory charge-filing deadline.

The district court also erred by considering whether requiring arbitration to proceed during the pendency of an EEOC charge would be a disincentive for employers to continue to offer arbitration. Not only is this factor legally irrelevant to whether suspending arbitration could deter a reasonable employee from filing a charge, it is also speculative. A speedy resolution of claims benefits employers as well as employees, as do arbitration-related cost savings.

Finally, the district court wrongly treated the filing of a charge as an election of remedies. Although it is permissible in some circumstances to require employees to choose between arbitration and filing a lawsuit (assuming that the arbitration fully protects statutory rights), that is a separate question from whether they must choose between arbitration and filing a charge. The purpose of a charge is to notify the EEOC of possible discrimination, not to seek relief. Indeed, the EEOC has no authority to order relief. Accordingly, there is no basis for concluding that an employee who files a charge has elected not to pursue arbitration.

Argument

Suspending arbitration while an EEOC charge is pending is a materially adverse action under the ADEA’s anti-retaliation provision because it could dissuade a reasonable employee from filing a charge.

The ADEA prohibits retaliation against any individual “because such individual . . . has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under this chapter.” 29 U.S.C. § 623(d). This provision prohibits an employer from “tak[ing] a materially adverse action because an individual has engaged in, or may engage in, activity in furtherance of the EEO laws the Commission enforces.” EEOC Enforcement Guidance on Retaliation and Related Issues, Notice No. 915.004, 2016 WL 4688886 (Aug. 25, 2016) [hereinafter “Retaliation Guidance”], at *4 § I(B). A materially adverse action for purposes of the anti-retaliation provision is “one that ‘could well dissuade a reasonable worker from making or supporting a charge of discrimination.’” Spengler v. Worthington Cylinders, 615 F.3d 481, 491 (6th Cir. 2010) (ADEA case quoting Burlington N., 548 U.S. at 57); see also Retaliation Guidance at *16 § II(B)(1) (same).

A. The district court applied the wrong legal standard.

Rather than apply the proper standard for proving a materially adverse action under the ADEA’s anti-retaliation provision, the district court substituted the standard for proving an adverse employment action under the statute’s substantive anti-discrimination provision. R.49, Slip Op., Pg. ID #1233, 1237. To prove discrimination, an employee must show “ʻ[a] materially adverse change in the terms and conditions of employment [that] must be more disruptive than a mere inconvenience or an alteration of job responsibilities.’” Hollins v. Atl. Co., 188 F.3d 652, 662 (6th Cir. 1999) (citation omitted). A materially adverse action in the retaliation context, however, focuses not on a change in the terms and conditions of employment, but on the likelihood that the challenged action could deter a reasonable employee from exercising protected rights. Burlington N., 548 U.S. at 57; Spengler, 615 F.3d at 491.

The standards are different because the two provisions have different language and different purposes. Compare 29 U.S.C. § 623(a) (for substantive discrimination, unlawful to discriminate “with respect to . . . terms, conditions, or privileges of employment”), with 29 U.S.C. § 623(d) (for retaliation, unlawful to “discriminate” without limitation). “The antidiscrimination provision seeks a workplace where individuals are not discriminated against because of their racial, ethnic, religious, or gender-based status. The antiretaliation provision seeks to secure that primary objective by preventing an employer from interfering (through retaliation) with an employee’s efforts to secure or advance enforcement of the Act’s basic guarantees.” Burlington N., 548 U.S. at 63 (citation omitted). Without broad protection from retaliation, individuals would be less willing to file EEOC charges. Failure to file charges would impede the EEOC’s ability to enforce the ADEA. Id. at 67; see also Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997) (anti-discrimination statutes require “unfettered access to statutory remedial mechanisms”).

Because the district court applied the wrong legal standard, it never considered whether suspending arbitration while an EEOC charge is pending, potentially leading to years of delay, “could well dissuade a reasonable worker from making or supporting a charge of discrimination.” Burlington N., 548 U.S. at 57 (citation omitted); Spengler, 615 F.3d at 49. For this reason alone, this Court should reverse the district court’s refusal to compel arbitration.

B. The district court erroneously assessed the impact of holding arbitration in abeyance.

1. Impact on employees

The primary benefit of a grievance/arbitration procedure is the speedy resolution of complaints. Indeed, the collective bargaining agreement at issue in this case specifically provides, “[I]t is important that grievances be processed as rapidly as possible.” R.34-4, CBA Art. 29(D), Pg. ID #201. This benefit is lost if arbitration is suspended upon the filing of an EEOC charge.

It took two years for the EEOC to process Watford’s first charge. R.34-3, Charge 00452, Pg. ID #151 (2/24/2011); R.34-8, Dismissal, Pg. ID #213 (1/31/2013). To date, six years have elapsed since Watford’s termination, and arbitration is still on hold. R.40-4, Berman Ltr., Pg. ID #880 (termination 10/13/2010). Because the district court refused to suspend litigation and order arbitration, the hold will continue indefinitely. The effect for Watford is largely the same as if arbitration had been halted entirely. Cf. Retaliation Guidance at *18 § II(B)(2) (“terminating a union grievance process” is a materially adverse action). The delay is especially prejudicial to Watford as an older worker, because “ʻolder citizens . . . by definition [have] relatively few productive years . . . left.’” Oscar Mayer & Co. v. Evans, 441 U.S. 750, 757 (1979) (quoting 113 Cong. Rec. 7076 (1967) (remarks of Sen. Javits)).

It is no answer to say, as the district court did, that Watford could have completed the arbitration process and then filed an EEOC charge. R.49, Slip Op., Page ID #1236. An individual who waits to file a charge is unlikely to have an arbitral resolution until after the EEOC charge-filing period has expired. See Wedding v. Univ. of Toledo, 884 F. Supp. 253, 255 (N.D. Ohio 1995) (“An employee . . . faced with the running of the statute of limitations[ ] may be forced to choose between pursuing a speedy nonjudicial resolution under the grievance procedure or filing suit to preserve her federal rights.”), rev’d on other grounds, 89 F.3d 316 (6th Cir. 1996).

In this case, for example, Watford’s arbitration was not scheduled until 266 days after her termination, R.36-5, Bethel Email, Pg. ID #428, and it would have taken additional time for the arbitrator to reach a decision. The entire process may well have lasted more than 300 days, the charge-filing deadline. See 29 U.S.C.

§ 626(d)(1); 29 C.F.R. § 1601.74. It is thus not surprising that Watford filed a charge before the conclusion of arbitration. The same is true for the filing of her lawsuit. Once the EEOC completed its charge processing, the ADEA required Watford to sue within 90 days. 29 U.S.C. § 626(e). She filed on day 83, while the arbitration hearing was in progress. R.34-8, Dismissal, Pg. ID #213 (1/13/2013); R.1, Compl., Pg. ID #1 (4/24/2013). It is unlikely that the arbitrator would have reached a final decision within the next week, and had Watford not filed when she did, she probably would have forfeited her statutory rights.

Watford’s situation is not unique. The Federal Mediation and Conciliation Service reports that “the average length of time between the filing of a grievance and an arbitrator’s award is 399 days.” See William H. Holley, et al., The Labor Relations Process 569 & n.69 (2016) (citing http://www.fmcs.gov/); see also Bd. of Governors, 957 F.2d at 426 (grievance procedure took more than one year to reach arbitration stage). Most individuals subject to this type of CBA provision, therefore, must choose between arbitration and statutory relief mechanisms. Those who seek the bargained-for benefit of speedy claim resolution will likely have to abandon their right to file charges. Those who file charges will find that although their arbitration is “suspended” rather than terminated, they have sacrificed a quick resolution in order to pursue their statutory rights. This dilemma surely impedes “unfettered access” to the EEOC. Robinson, 519 U.S. at 68.

In a case that pre-dated Burlington Northern but anticipated its focus on whether an adverse action could deter a reasonable employee from exercising statutory rights, the Seventh Circuit held that it is illegal to terminate arbitration upon the filing of an EEOC charge. Bd. of Governors, 957 F.2d at 430. The logic of that decision applies fully here, where arbitration has not been terminated but has already been suspended for six years.

Board of Governors rejected the employer’s claim that it was acting pursuant to a collective bargaining agreement and not with retaliatory intent. The Seventh Circuit explained, “[n]othing in [the ADEA] requires a showing of intent in retaliatory policy cases. To the contrary, [the ADEA] is concerned with the effect of discrimination against employees who pursue their federal rights, not the motivation of the employer who discriminates.” Id. at 427. The effect of terminating arbitration upon the filing of a charge, the Seventh Circuit said, is to force employees either to forfeit their contractual right to arbitration or risk losing the ability to pursue their statutory rights. Id. at 430. “A collective bargaining agreement,” the court concluded, “may not provide that grievances will proceed to arbitration only if the employee refrains from participating in protected activity under the ADEA.” Id. at 431.

Several courts have agreed with this holding. See, e.g., Trayling v. St. Joseph Cty. Emp’rs Chapter of Local #2955, 953 F. Supp. 2d 793, 800 (W.D. Mich. 2013) (termination of arbitration upon filing of EEOC charge is per se retaliatory under the ADEA “because the employee’s participation in the statutorily protected activity (pursuing her legal remedies) is the determining factor in the employer’s decision” to take the adverse action of terminating the contractual remedy); Brinkley v. Bd. of Comm’rs of Franklin Cty., No. 2:12-CV-00469, 2013 WL 394158, at *5 (S.D. Ohio Jan. 29, 2013) (termination of arbitration upon filing of EEOC charge “is exactly the type of negative consequence that could dissuade a reasonable worker from filing such charges”); Portland State Univ. Chapter of the Am. Ass’n of Univ. Profs. v. Portland State Univ., 291 P.3d 658, 670 (Or. 2012) (en banc) (termination of arbitration upon filing of discrimination charge “would tend to dissuade employees from pursuing their protected rights because exercising those rights would result in a substantive difference in treatment”).

One court has applied Board of Governors to suspension of arbitration, as opposed to outright termination. Wedding, 884 F. Supp. at 255. “The fact that plaintiff’s grievance procedure could be reinstated after the termination of her civil action does not cure [the CBA’s] legal infirmities,” the court said. “Such a provision has the effect of encouraging employees not to file, or in the alternative, dismissing, any actions filed under [a federal anti-discrimination statute].” Id.

The Second Circuit has ruled to the contrary, but it did so without applying the Burlington Northern standard. In Richardson v. Commission on Human Rights & Opportunities, 532 F.3d 114, 117 (2d Cir. 2008), the Second Circuit cited Burlington Northern but relied instead on an earlier case, United States v. New York City Transit Authority, 97 F.3d 672 (2d Cir. 1996), to hold that “the defendants’ withdrawal from arbitration did not constitute retaliation because the forum-selection clause was a reasonable defensive measure to avoid duplicative proceedings in the two fora Richardson’s employer maintained for addressing discrimination complaints.” At no point did the Second Circuit apply controlling law and consider whether the forum-selection clause “well might have ‘dissuaded a reasonable worker from making or supporting a charge of discrimination.’” Burlington N., 548 U.S. at 68. It is likely that if it were now to apply the correct standard, the Second Circuit would reverse itself. The district court here did not acknowledge that Richardson failed to rely upon controlling law. R.49, Slip Op., Pg. ID #1235-38.

Courts that have agreed with Richardson’s holding have likewise failed to consider the Burlington Northern standard. See EEOC v. Chrysler Grp., LLC, No. 08-C-1067, 2011 WL 693642, at *12 (E.D. Wis. Feb. 17, 2011) (citing Burlington Northern but not considering whether suspending the grievance procedure could discourage employees from filing charges); cf. New England Health Care Emps. Union v. R.I. Legal Servs., 273 F.3d 425, 429 (1st Cir. 2001) (arbitrator found that claim was non-arbitrable under CBA because employee had filed EEOC charge; even assuming arbitrator could be liable for retaliation, no adverse action because arbitrator relied on non-pretextual reading of CBA).

This Court has not faced this precise issue, but it has discussed Board of Governors with approval. In Sundance Rehabilitation Corp., 466 F.3d at 500-01, this Court held that the ADEA allows an employer to offer severance pay not otherwise owed in exchange for promises not to file a charge or participate in EEOC proceedings. The employee in Sundance did not accept the offer and filed a charge. The Court observed that the employer’s sole action was to offer a contract whose terms might, in any event, be unenforceable, and said that simply offering a contract was different from Board of Governors, where the employer “actually took an adverse action against the employee.” Id. at 498. Employees who accepted the agreement in Sundance were better off by receiving a benefit to which they were not otherwise entitled, the Court said, and those who did not accept it were no worse off and did not surrender any rights. Id. at 501. In contrast, the Court observed, terminating arbitration in Board of Governors “clearly constituted retaliation in violation of [the ADEA].” Id. at 498.

Sundance is significant because it characterized the termination of arbitration in Board of Governors as an “adverse action” without relying on Burlington Northern, which the Supreme Court had decided four months earlier. Sundance erroneously relied instead on overruled precedent defining an adverse action in the retaliation context as “a ‘materially adverse change in the terms and conditions of [plaintiff’s] employment.’” 466 F.3d at 501 (citation omitted). This standard, which still applies in the discrimination context, was once this Court’s standard for retaliation as well. White v. Burlington N. & Santa Fe Ry., 364 F.3d 789, 800 (6th Cir. 2004) (en banc). The Supreme Court overruled White in relevant part, making it easier to establish an adverse action for retaliation than for discrimination. Burlington N., 548 U.S. at 60, 67-68 (holding it is not anomalous to read Title VII “to provide broader protection for victims of retaliation than for

. . . victims of . . . discrimination”); see also Retaliation Guidance at *16 § II(B)(1), (“The Supreme Court held in Burlington . . . that a ‘materially adverse action’ subject to challenge under the anti-retaliation provisions encompasses a broader range of actions than an ‘adverse action’ subject to challenge under the non-discrimination provisions.”).

Notwithstanding the district court’s conclusion that Sundance “merely discussed Board of Governors without accepting or rejecting its holding,” R.49, Slip Op., Pg. ID #1239, this Court implied in Sundance that, if faced with similar facts, it would rule as the Seventh Circuit did. Here, not only are the facts similar, but Burlington Northern has now made it easier to establish a materially adverse action under the anti-retaliation provision. Applying the proper standard, this Court must rule that suspending arbitration while an EEOC charge is pending constitutes illegal retaliation under the ADEA.

2. Impact on employers

Although its effect on arbitration is not relevant to the retaliation analysis, the district court overstated the likelihood that employers will reject arbitration clauses if they are subject to simultaneous proceedings pursuant to anti-discrimination statutes. A speedy resolution of claims benefits employers as well as employees. “The primary incentive for an employer to enter into an arbitration agreement is the union’s reciprocal promise not to strike.” Alexander v. Gardner-Denver Co., 415 U.S. 36, 54 (1974). As the Supreme Court has explained, “It is not unreasonable to assume that most employers will regard the benefits derived from a no-strike pledge as outweighing whatever costs may result from according employees an arbitral remedy against discrimination in addition to their judicial remedy under Title VII.” Id. at 55.

Employers also benefit from arbitration-related cost savings. Arbitration “allow[s] parties to avoid the costs of litigation, a benefit that may be of particular importance in employment litigation, which often involves smaller sums of money than disputes concerning commercial contracts.” Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 123 (2001); see also 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 257 (2009) (“Parties generally favor arbitration precisely because of the economics of dispute resolution.”).

C. The district court wrongly treated the filing of a charge as an election of remedies.

The district court upheld the suspension of arbitration in part because it believed that Watford elected a non-arbitration remedy when she filed a charge with the EEOC. R.49, Slip Op., Pg. ID #1236. This belief was erroneous. It is true that employees may sometimes have to choose between arbitration and litigation, assuming that the arbitration fully addresses their statutory rights. Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 35 (1991). That is a separate question, however, from whether they must choose between arbitration and filing an EEOC charge. The latter choice is impermissible. Id. at 28 (“An individual ADEA claimant subject to an arbitration agreement will still be free to file a charge with the EEOC, even though the claimant is not able to institute a private judicial action.”).

Filing a charge with the EEOC does not constitute an election of remedies because the EEOC cannot order relief. “The function of a . . . charge . . . is to place the EEOC on notice that someone . . . believes that an employer has violated [the statute].” EEOC v. Shell Oil Co., 466 U.S. 54, 68 (1984); see also Sundance Rehab. Corp., 466 F.3d at 499 (“A charge filed with the EEOC is not a complaint seeking relief. Rather[,] it informs the EEOC of possible employment discrimination.”).

If it finds reasonable cause to believe that a violation has occurred, the EEOC brings the parties together for voluntary conciliation. 29 U.S.C. § 626(b). In a small number of cases, the EEOC sues respondents in federal court, where it acts not as the representative of the charging party, but on behalf of the public at large. See EEOC v. Waffle House, Inc., 534 U.S. 279, 297 (2002) (EEOC “does not stand in the employee’s shoes” and its claim is not “merely derivative”); EEOC v. Kimberly-Clark Corp., 511 F.2d 1352, 1359 (6th Cir. 1975) (EEOC is “entitled to relief that will protect the interests of past, present, and future employees”). At times, the EEOC’s interests may even diverge from those of the charging party. Gen. Tel. Co. of the N.W., Inc. v. EEOC, 446 U.S. 318, 331 (1980) (“The EEOC exists to advance the public interest in preventing and remedying employment discrimination, and it does so in part by making the hard choices where conflicts of interest exist.”).

Conclusion

Under Burlington Northern, suspending arbitration while an EEOC charge is pending violates the ADEA’s anti-retaliation provision. A reasonable employee might choose not to file a charge in order to obtain a speedy resolution of her complaint. The ADEA protects her from having to make that choice.

For the foregoing reasons, the EEOC respectfully requests that this Court reverse the denial of partial summary judgment to Watford and the grant of partial summary judgment to the defendants.

Respectfully submitted,

P. DAVID LOPEZ /s/ Gail S. Coleman

General Counsel Attorney

EQUAL EMPLOYMEN T

JENNIFER S. GOLDSTEIN OPPORTUNITY COMMISSION

Associate General Counsel Office of General Counsel

131 M Street, NE, Room 5SW24L

MARGO PAVE Washington, DC 20507

Assistant General Counsel (202) 663-4055

gail.coleman@eeoc.gov

Designation of Documents

Docket # Name of Document Page ID

1 Complaint 1-11

21 Amended Complaint 78-91

34 Watford Motion for Partial SJ 137-265

34-3 EEOC Charge 00452 (Initial Charge) 151

34-4 Collective Bargaining Agreement 152-205

34-5 EEOC Charge 03069 (Union) 206

34-6 Determination on EEOC Charge 00066 (JCPS) 207-08

34-8 EEOC Dismissal of Initial Charge 213

34-9 EEOC Notice on Charge 00066 (JCPS) 214-15

34-10 EEOC Charge 03310 (Board of Education) 216

34-20 Department of Justice Notice 265

36-5 Bethel E-mail 427-29

36-7 Meredith Letter 432-33

37 Board of Education Motion for Partial SJ 446-47

38 Union Motion for Partial SJ 623-24

38-1 Union Memo Against Partial SJ 625-40

40-4 Berman Letter 890-942

44-7 Grievance 1170=72

49 District Court Opinion 1229-42

63 Notice of Appeal 1695

Certificate of Compliance

I certify that this brief complies with the type volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 4,720 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B). I further certify that this brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Office Word 2010 with 14 point Times New Roman.

/s/ Gail S. Coleman

Attorney

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION

Office of General Counsel

131 M Street, NE, Room 5SW24L

Washington, DC 20507

(202) 663-4055

gail.coleman@eeoc.gov

Certificate of Service

I certify that I submitted this amicus brief in PDF format on this 24th day of October, 2016, through the Court’s Case Management/Electronic Case Filing (CM/ECF) system. I certify that all counsel of record are registered users of the Court’s CM/ECF system and that I served them with the foregoing amicus brief on this 24th day of October, 2016, via the CM/ECF system.

/s/ Gail S. Coleman

Attorney

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION

Office of General Counsel

131 M Street, NE, Room 5SW24L

Washington, DC 20507

(202) 663-4055

gail.coleman@eeoc.gov

[1] Watford also asserts claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. This brief focuses on the ADEA because the EEOC has statutory enforcement authority to litigate against state and local entities. The anti-retaliation provisions of the ADEA and Title VII are interpreted similarly, and so the ADEA analysis should apply equally to Watford’s Title VII claims. Fox v. Eagle Dist. Co., 510 F.3d 587, 591 (6th Cir. 2007) (“Title VII’s anti-retaliation provision is similar in all relevant respects to the ADEA’s anti-retaliation provision, and . . . it is therefore appropriate to look to cases construing Title VII as a source of authority for interpreting the ADEA’s anti-retaliation clause.”).

[2] Watson erroneously named JCPS rather than the Board of Education in her EEOC charge.

[3] Watson subsequently filed an amended complaint naming the Board of Education and the Jefferson County Teachers’ Association. R.21, Am. Compl., Pg. ID #78.

[4] The district court also ruled that the stay of arbitration is not actionable under Title VII. R.49, Slip Op., Pg. ID #1229.