Dunfey v. Seabrook Sch. Dist. et a l . CV-07-140-PB 04/24/08
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Dianne Dunfey
v. Case No. 07-cv-140-PB Opinion No. 2008 DNH 087 Seabrook School District and Stanley Shupe
MEMORANDUM AND ORDER
Dianne Dunfey, a teacher at the Seabrook Middle School,
alleges that Seabrook School District and Seabrook Middle School
Principal, Stanley Shupe, violated her First Amendment right to
freedom of speech by retaliating against her for her refusal to
stand and recite the pledge of allegiance during her homeroom
class. Defendants have moved for summary judgment, arguing that
because Dunfey exhausted neither the grievance procedures of her
collective bargaining agreement nor those of the relevant state
agency before seeking relief in federal court, her claims are
barred. For the reasons described below, I deny defendants'
motion. I. BACKGROUND
Seabrook School District has a policy of setting aside time
at the beginning of each school day to recite the pledge of
allegiance. Dianne Dunfey, who has taught at the Seabrook Middle
School since 1986, remains seated during the pledge and refuses
to participate in its recitation.
Stanley Shupe became the principal of the middle school in
September 2003. Dunfey alleges that Shupe expressed his
displeasure with her non-participation in the pledge early in his
tenure. She further alleges that, starting in September 2004 and
continuing through December 2007, Shupe and the school district
engaged in numerous acts of retaliation against her for refusing
to participate in the pledge.
Between September 2004 and June 2007, Dunfey filed four
grievances that related to some of these acts of alleged
retaliation, but did not raise her First Amendment claims and did
not exhaust her appeals under the grievance process outlined by
the collective bargaining agreement ("CBA"), which governs her
employment relationship. There is no evidence that Dunfey filed
any complaints with the New Hampshire Public Employee Labor
Relations Board ("PELRB").
- 2 - On May 10, 2007, Dunfey filed suit under 42 U.S.C. § 1983,
alleging that defendants violated her First Amendment right to
freedom of speech by retaliating against her for her refusal to
participate in the pledge of allegiance.
II. STANDARD OF REVIEW
Summary judgment is appropriate when "the pleadings, the
discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law."
Fed. R. Civ. P. 56(c). A party seeking summary judgment must
first identify the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the
moving party has properly supported her motion for summary
judgment, the burden shifts to the nonmoving party, with respect
to each issue on which she has the burden of proof, to
demonstrate that a trier of fact reasonably could find in her
favor. DeNovellis v. Shalala, 124 F.3d 298, 306 (1st Cir. 1997);
see Celotex, 477 U.S. at 323.
- 3 - III. ANALYSIS
Defendants argue that they are entitled to summary judgment
because Dunfey did not raise her First Amendment claims in a
grievance pursuant to the CBA before initiating this lawsuit, or,
alternatively, because Dunfey did not assert her claims to the
PELRB before initiating this lawsuit. I address each argument in
turn.
A. Whether Dunfey Must Assert Her First Amendment Claims in a CBA Grievance
Defendants rely on Republic Steel Corp. v. Maddox, 379 U.S.
650 (1965), and its progeny for the broad proposition that an
employee must exhaust the grievance procedures specified in a
collective bargaining agreement before resorting to the courts.
This argument overstates the breadth of Republic Steel's holding,
which applies only to "contract grievances" in which the employer
and union have agreed upon a "contract grievance procedure . . .
as the mode of redress." Republic Steel Corp. v. Maddox, 37 9
U.S. 650. 652 (1965) .
Importantly, a separate line of cases holds that where an
employee is invoking rights that are "independent of the
collective-bargaining process" and that "devolve on [plaintiffs]
- 4 - as individual workers, not as members of a collective
organization," the mere existence of a collective bargaining
agreement does not waive those separate statutory rights.
Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 745
(1981); see also Alexander v. Gardner-Denver Co., 415 U.S. 36,
49-50 (1974).
Subseguent Supreme Court jurisprudence has somewhat weakened
the Barrentine/Gardner-Denver line of cases, see Gilmer v.
Interstate/Johnson Lane Corp., 500 U.S. 20, 23 (1991) (holding
that age discrimination claims may be subjected to compulsory
arbitration pursuant to an arbitration agreement in a securities
registration application), and raised the guestion of whether the
language of a CBA may, in some circumstances, validly waive an
employee's right to seek judicial redress for the violation of an
independent statutory right. O'Brien v. Town of Agawam, 350 F.3d
279, 286 n. 14 (1st Cir. 2003) (noting this uncertainty). To
reach the guestion of whether such a waiver of the right to sue
is enforceable, however, a court must find that the waiver exists
in the first place. Id. at 2 8 6 . Here, the CBA does not contain
such a waiver.
- 5 - Under Wright v. Universal Maritime Service Corp., 525 U.S.
7 0 (1998), a union-negotiated waiver of employees' statutory
rights to a judicial forum must be "clear and unmistakable" from
the language of the contract. See Wright v. Universal Mar. Serv.
Corp., 525 U.S. 70, 80 (1998) (requiring a "clear and
unmistakable" waiver of employees' right to seek judicial redress
of employment discrimination claims); O'Brien, 350 F.3d at 285
(requiring a "clear and unmistakable" waiver of employees' right
to seek judicial redress of Fair Labor Standards Act claims).
In this case, the CBA contains no clear and unmistakable
waiver of employees' statutory rights to bring § 1983 actions for
violations of their individual constitutional rights. See
Wright, 525 U.S. at 80; O'Brien, 350 F.3d at 285. First, the CBA
defines "grievance" as a complaint "that there has been to
him/her a personal loss, injury, or inconvenience because of a
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Dunfey v. Seabrook Sch. Dist. et a l . CV-07-140-PB 04/24/08
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Dianne Dunfey
v. Case No. 07-cv-140-PB Opinion No. 2008 DNH 087 Seabrook School District and Stanley Shupe
MEMORANDUM AND ORDER
Dianne Dunfey, a teacher at the Seabrook Middle School,
alleges that Seabrook School District and Seabrook Middle School
Principal, Stanley Shupe, violated her First Amendment right to
freedom of speech by retaliating against her for her refusal to
stand and recite the pledge of allegiance during her homeroom
class. Defendants have moved for summary judgment, arguing that
because Dunfey exhausted neither the grievance procedures of her
collective bargaining agreement nor those of the relevant state
agency before seeking relief in federal court, her claims are
barred. For the reasons described below, I deny defendants'
motion. I. BACKGROUND
Seabrook School District has a policy of setting aside time
at the beginning of each school day to recite the pledge of
allegiance. Dianne Dunfey, who has taught at the Seabrook Middle
School since 1986, remains seated during the pledge and refuses
to participate in its recitation.
Stanley Shupe became the principal of the middle school in
September 2003. Dunfey alleges that Shupe expressed his
displeasure with her non-participation in the pledge early in his
tenure. She further alleges that, starting in September 2004 and
continuing through December 2007, Shupe and the school district
engaged in numerous acts of retaliation against her for refusing
to participate in the pledge.
Between September 2004 and June 2007, Dunfey filed four
grievances that related to some of these acts of alleged
retaliation, but did not raise her First Amendment claims and did
not exhaust her appeals under the grievance process outlined by
the collective bargaining agreement ("CBA"), which governs her
employment relationship. There is no evidence that Dunfey filed
any complaints with the New Hampshire Public Employee Labor
Relations Board ("PELRB").
- 2 - On May 10, 2007, Dunfey filed suit under 42 U.S.C. § 1983,
alleging that defendants violated her First Amendment right to
freedom of speech by retaliating against her for her refusal to
participate in the pledge of allegiance.
II. STANDARD OF REVIEW
Summary judgment is appropriate when "the pleadings, the
discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law."
Fed. R. Civ. P. 56(c). A party seeking summary judgment must
first identify the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the
moving party has properly supported her motion for summary
judgment, the burden shifts to the nonmoving party, with respect
to each issue on which she has the burden of proof, to
demonstrate that a trier of fact reasonably could find in her
favor. DeNovellis v. Shalala, 124 F.3d 298, 306 (1st Cir. 1997);
see Celotex, 477 U.S. at 323.
- 3 - III. ANALYSIS
Defendants argue that they are entitled to summary judgment
because Dunfey did not raise her First Amendment claims in a
grievance pursuant to the CBA before initiating this lawsuit, or,
alternatively, because Dunfey did not assert her claims to the
PELRB before initiating this lawsuit. I address each argument in
turn.
A. Whether Dunfey Must Assert Her First Amendment Claims in a CBA Grievance
Defendants rely on Republic Steel Corp. v. Maddox, 379 U.S.
650 (1965), and its progeny for the broad proposition that an
employee must exhaust the grievance procedures specified in a
collective bargaining agreement before resorting to the courts.
This argument overstates the breadth of Republic Steel's holding,
which applies only to "contract grievances" in which the employer
and union have agreed upon a "contract grievance procedure . . .
as the mode of redress." Republic Steel Corp. v. Maddox, 37 9
U.S. 650. 652 (1965) .
Importantly, a separate line of cases holds that where an
employee is invoking rights that are "independent of the
collective-bargaining process" and that "devolve on [plaintiffs]
- 4 - as individual workers, not as members of a collective
organization," the mere existence of a collective bargaining
agreement does not waive those separate statutory rights.
Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 745
(1981); see also Alexander v. Gardner-Denver Co., 415 U.S. 36,
49-50 (1974).
Subseguent Supreme Court jurisprudence has somewhat weakened
the Barrentine/Gardner-Denver line of cases, see Gilmer v.
Interstate/Johnson Lane Corp., 500 U.S. 20, 23 (1991) (holding
that age discrimination claims may be subjected to compulsory
arbitration pursuant to an arbitration agreement in a securities
registration application), and raised the guestion of whether the
language of a CBA may, in some circumstances, validly waive an
employee's right to seek judicial redress for the violation of an
independent statutory right. O'Brien v. Town of Agawam, 350 F.3d
279, 286 n. 14 (1st Cir. 2003) (noting this uncertainty). To
reach the guestion of whether such a waiver of the right to sue
is enforceable, however, a court must find that the waiver exists
in the first place. Id. at 2 8 6 . Here, the CBA does not contain
such a waiver.
- 5 - Under Wright v. Universal Maritime Service Corp., 525 U.S.
7 0 (1998), a union-negotiated waiver of employees' statutory
rights to a judicial forum must be "clear and unmistakable" from
the language of the contract. See Wright v. Universal Mar. Serv.
Corp., 525 U.S. 70, 80 (1998) (requiring a "clear and
unmistakable" waiver of employees' right to seek judicial redress
of employment discrimination claims); O'Brien, 350 F.3d at 285
(requiring a "clear and unmistakable" waiver of employees' right
to seek judicial redress of Fair Labor Standards Act claims).
In this case, the CBA contains no clear and unmistakable
waiver of employees' statutory rights to bring § 1983 actions for
violations of their individual constitutional rights. See
Wright, 525 U.S. at 80; O'Brien, 350 F.3d at 285. First, the CBA
defines "grievance" as a complaint "that there has been to
him/her a personal loss, injury, or inconvenience because of a
violation, misinterpretation or inequitable application of any of
the provisions of the Agreement governing employees." (CBA at 3
(emphasis added).) The most plausible construction of this
definition is that a grievance may only be used to redress harms
arising from violations of the contract, not violations of
extrinsic statutes or constitutional provisions. Second, nothing
- 6 - in the substantive provisions of the CBA makes any express
reference to or purports to incorporate the provisions of § 1983
or the U.S. Constitution. (CBA at 6-21.) Thus, the CBA does not
contain a clear and unmistakable waiver of employees' rights to
bring § 1983 actions alleging constitutional violations. See
O'Brien, 350 F.3d at 285-86 (holding that where "grievances" are
defined as allegations that the town violated the CBA, and the
CBA makes no references to arbitration of statutory claims, there
is not a clear and unmistakable waiver of a judicial forum for
such claims.) Accordingly, Dunfey did not need to raise her §
1983 claims in a grievance pursuant to the CBA before filing this
suit.
B. Whether Dunfey Must Assert Her First Amendment Claims to the PELRB
In the alternative, defendants rely exclusively on state law
to argue that Dunfey must seek administrative relief from the
PELRB before filing suit in federal court. As a general rule,
however, plaintiffs need not exhaust their state administrative
remedies before filing a § 1983 suit in federal court. Patsy v.
Bd. of Regents, 457 U.S. 496, 516 (1982); Borges Colon v. Roman-
Abreu, 438 F.3d 1, 19 (1st Cir. 2006) . Congress has carved out
- 7 - an exception from this general rule for certain suits by prison
inmates. See Porter v. Nussle, 534 U.S. 516, 524 (2002). That
exception does not apply to Dunfey, who is a teacher. Because
this case is not covered by any exception to the general rule
that a § 1983 plaintiff need not exhaust administrative remedies
before filing suit in this court, Dunfey's claim is not barred
simply because she failed to present her First Amendment claim to
the PELRB.
IV. CONCLUSION
For the foregoing reasons, defendant's motion for summary
judgment (Doc. No. 11) is denied.
SO ORDERED.
/s/Paul Barbadoro Paul Barbadoro United States District Judge
April 24, 2008
cc: Debra Weiss Ford, Esg. H. Jonathan Meyer, Esg.