Portland State University Chapter of the American Ass'n of University Professors v. Portland State University

246 P.3d 1162, 240 Or. App. 108, 189 L.R.R.M. (BNA) 3254, 2010 Ore. App. LEXIS 1657, 111 Fair Empl. Prac. Cas. (BNA) 417

Opinions

WOLLHEIM, J.

The Portland State University Chapter of the Association of University Professors (Association) represents academic professionals employed by Portland State University (PSU). The Association and PSU entered into a collective bargaining agreement that established a grievance process for dispute resolution (CBA). One provision of the CBA allowed PSU to decline to use that grievance process after a member of the Association sought resolution of the grievance from an administrative agency or in a court. Here, a member of the Association alleged gender discrimination in complaints filed with the Equal Employment Opportunity Commission (EEOC) and the Bureau of Labor and Industries (BOLI). Thereafter, PSU declined to use the grievance process. The Association filed an unfair labor practice complaint with the Employment Relations Board under ORS 243.672(l)(g), alleging that PSU’s refusal to enter into the grievance process constituted unlawful retaliation under ORS 659A.030(l)(f) and Title VII of the Civil Rights Act of 1964, specifically, 42 USC section 2000e-3(a). The board agreed with the Association and ordered PSU to submit to the grievance process. PSU seeks judicial review of that order. We agree with PSU that the board erred in ordering PSU to submit to the grievance process because it applied the wrong standard. Accordingly, we reverse, in part, and remand for reconsideration.¹

The following facts are undisputed. The CBA defined a grievance process to resolve disputes that arose between the Association and PSU. The grievance process established deadlines for the filing of grievances, provided for various stages of informal and formal negotiations involving the Association and PSU, and, ultimately, granted the Association the right to submit grievances to binding arbitration. However, the agreement allowed PSU to withdraw from the grievance process if a member sought resolution of the same matter through alternative channels. Specifically, Article 28.B.2 of the agreement provided:

“Resort to Other Procedures. If, prior to seeking resolution of a dispute by presenting a grievance hereunder, or while the grievance proceeding is in progress, a member seeks resolution of the matter through any agency outside [PSU], whether administrative or judicial, [PSU] shall have no obligation to entertain or proceed further with the matter pursuant to this grievance procedure or pursuant to Division C (ARBITRATION) of this Article.”

(Boldface and capitalization in original.)

Wilson was employed on annual fixed-term contracts as a faculty member from September 1998 through August 2004 and was a member of the Association. In the fall of 2003, Wilson met with her department head on behalf of a colleague who had accused a third faculty member in the department of sexual harassment. Thereafter, PSU informed Wilson that her contract would not be renewed and, later that academic year,Wilson came to believe that she suffered discrimination in retaliation for her support of her colleague’s claims. Wilson then filed a complaint with PSU’s Office of Affirmative Action and Equal Opportunity (AA/EO office) and spoke with the Association about filing a grievance under the CBA.

While the Association investigated whether to pursue a grievance, the AA/EO office completed its investigation and issued a report recommending that PSU take no action on Wilson’s complaint. PSU adopted that recommendation. The Association requested a copy of the report, which PSU declined to provide based on confidentiality and relevance.

In February 2005, the Association filed a grievance under the CBA, alleging that PSU had improperly failed to provide a copy of the AA/EO report. Separately, Wilson filed an intake questionnaire with the EEOC in pursuit of a potential gender discrimination action against PSU. The Association informed PSU that Wilson had filed an EEOC complaint. PSU then notified the Association that it would not process the grievance because Wilson had sought resolution through an outside agency. PSU relied on Article 28.B.2. The Association responded that Article 28.B.2 was illegal and unenforceable.²

Wilson then filed a complaint with BOLI, alleging that her nonrenewal was discriminatory and retaliatory. Subsequently, the Association filed a second grievance, alleging that the nonrenewal of Wilson’s contract was discriminatory and retaliatory. PSU again refused to process that grievance, relying on Article 28.B.2.

The Association filed a complaint with the board and sought declaratory relief, asserting that PSU’s failure to comply with the grievance process violated ORS 243.672(l)(g), which provides that “[i]t is an unfair labor practice to * * * [v]iolate the provisions of any written contract with respect to employment relations, including an agreement to arbitrate.”³ Citing Article 28.B.2, PSU countered that it did not violate any contractual provision because it had never agreed to process any grievances involving a matter that was also submitted to an outside agency such as EEOC or BOLI. The Association responded that Article 28.B.2 of the CBA was not enforceable because it sanctioned discrimination against an employee who has filed a discrimination complaint, citing Title VII of the Civil Rights Act of 1964, specifically, 42 USC section 2000e-3(a), and ORS 659A.030(l)(f).

The board concluded that “[u]nder the express and unambiguous terms of the collective bargaining agreement, * * * [PSU] had no contractual obligation to further process the grievance once Wilson commenced EEOC proceedings.” However, the board agreed with the Association that Article 28.B.2, by allowing the employer to penalize an employee who chooses to seek resolution of a discrimination claim, “constitutes unlawful retaliation under both state and federal law.” Consequently, the board concluded that Article 28.B.2 was “unenforceable as applied” to Wilson’s grievances and that PSU’s refusal to process Wilson’s grievances violated ORS 243.672(l)(g). Consequently, the board ordered PSU to process the grievances.

PSU seeks judicial review of the order of the board, raising two assignments of error. First, PSU argues that the board erred by failing to dismiss the complaint because it lacked the authority to determine that Article 28.B.2 constituted retaliation. Second, PSU argues that the board erred in concluding that Article 28.B.2 was illegal and unenforceable and, on that basis, erred in ordering PSU to enter into the contractual grievance process. The Association counters that the board had the authority to interpret the contract and that Article 28.B.2 constituted unlawful retaliation. As explained below, we agree with the Association that the board had authority over the contract dispute claim. But we agree with PSU that the board erred in ordering PSU to process the grievance because it applied the wrong standard.

Under its first assignment of error, PSU asserts that, because the Association’s unlawful labor practice complaint was predicated upon ORS 243.672(l)(g), the board was limited to considering whether the board’s refusal to process the grievances “[v]iolate[d] the provisions of any written contract” under ORS 243.672(l)(g). PSU argues that the board had no authority to “determin[e] that an employer has retaliated against an employee under Title VII or ORS 659A.030(l)(f).”⁴

The Association has correctly identified the problem with PSU’s argument: PSU confuses the board’s authority to declare a contractual term unenforceable with the board’s authority to find liability under state and federal antidiscrimination laws. The board did not decide whether Wilson or the Association is entitled to a remedy under either Title VII or ORS 659A.030(l)(f). Rather, the board determined that Article 28.B.2 was not enforceable because Article 28.B.2 “cannot lawfully apply to Title VII complaints.”

The board has the authority to determine whether a public employer has engaged in an unfair labor practice. ORS 243.676(2). The legislature has defined an unfair labor practice under ORS 243.672(l)(g) to include the “[v]iolat[ion of] the provisions of any written contract * * * including an agreement to arbitrate.” PSU does not argue that the board lacks the authority to declare unenforceable any contractual provision that is in conflict with other provisions of statutory law — including Title VII and ORS 659A.030(l)(f). In fact, the legislature contemplated that the board would have such authority. See ORS 243.702(1) (contemplating circumstances under which the terms in “a collective bargaining agreement are declared to be invalid * * * by the Employment Relations Board”). Consequently, we conclude that the board had statutory authority to determine whether Article 28.B.2 of the CBA, permitting PSU to avoid the grievance procedure, was an enforceable contractual provision. For that reason, we reject PSU’s first assignment of error.

Next we consider PSU’s second assignment of error: the correctness of the board’s legal conclusion that “the provisions of Article 28.B.2 are unenforceable as applied to the Wilson grievance.” We review that conclusion for errors of law. ORS 183.482(8)(a). As the board recognized, the issue of whether a collective bargaining agreement may permit an employer to withdraw from a contractual grievance procedure solely because an Association member filed a discrimination complaint with the EEOC or BOLI presents an issue of first impression for Oregon appellate courts.

Although the board cited both federal law, 42 USC section 2000e-3(a), and state law, ORS 659A.030(l)(f), in reaching its conclusion that Article 28.B.2 is unenforceable as applied in this case, the board’s reasoning and analysis depended entirely on the federal statute. Before the board, the Association cited ORS 659A.030(l)(f)⁵ only in its post-trial brief and did not develop any argument under the state statutory framework. On appeal, the Association similarly does not develop any separate argument that relies on the state statute. Rather, the Association argues that “discrimination and retaliation claims under ORS 659A.030 are subject to the same legal standards as those under Title VII.” (Emphasis added.) Consequently, as the issue is framed by the Association, this case depends on whether federal employment law bars the enforceability of Article 28.B.2.

Title VII protects against employment discrimination on the basis of “race, color, religion, sex, or national origin.” 42 USC § 2000e-2(a). In particular, 42 USC section 2000e-3(a) makes it “an unlawful employment practice for an employer to discriminate against any * * * employee[ ] * * * [who has] made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing.” To demonstrate that an employer has unlawfully discriminated — that is, retaliated against an employee— under 42 USC section 2000e-3(a), the aggrieved employee must prove three facts:

“(1) the [employee] engaged in protected activity opposing discrimination; (2) the [employee] experienced a materially adverse action, that is, an action that a reasonable employee would find materially adverse-, and (3) a causal connection exists between the protected activity and the adverse action. Somoza v. University of Denver, 513 F3d 1206, 1212 (10th Cir 2008).”

Steele v. Mayoral, 231 Or App 603, 616, 220 P3d 761 (2009) (emphasis added). The employee has the ultimate burden of persuasion as to each element of a retaliation claim. St. Mary’s Honor Center v. Hicks, 509 US 502, 511, 113 S Ct 2742, 125 L Ed 2d 407 (1993).

On review, PSU argues that the Association did not make an adequate showing as to the second of the requisite three facts: that PSU’s refusal to process Wilson’s grievance was a materially adverse action. To establish retaliation, the adverse action need not affect the terms or conditions of employment, but the adverse action must be material. Burlington N. & S. F. R. Co. v. White, 548 US 53, 64, 68, 126 S Ct 2405, 165 L Ed 2d 345 (2006). Accordingly, not all adverse actions give rise to retaliation claims; an adverse action is material only if it is “likely to dissuade employees from complaining or assisting in complaints about discrimination.” Id. at 70. That is an objective standard, assessed from the likely impact that an employer’s acts may have on a reasonable employee. Id. at 68.

The determination whether an adverse act is material distinguishes “significant from trivial harms”; an adverse act gives rise to an actionable retaliation claim only if, from the perspective of a reasonable person, the adverse action rises to a “level of seriousness” that would deter someone from complaining about discriminatory practices. Id. at 67-68; see also Steele, 231 Or App at 618-19 (distinguishing trivial and significant adverse actions). An adverse action gives rise to actionable retaliation only if the adverse action is so serious that it would dissuade a reasonable employee from bringing a discrimination action in the first instance. See Burlington, 548 US at 67-68. Thus, whether Article 28.B.2 sanctions a materially adverse action depends on whether PSU’s decision to decline to enter into a grievance process after an employee complains about discrimination is likely to dissuade a reasonable employee from making such a complaint in the first instance.

Central to that analysis is the legal significance of the grievance process that PSU declined to enter. As the United States Supreme Court has explained, a right to anti-discrimination established under a contract may differ from the right to antidiscrimination established by statute. 14 Penn Plaza LLC v. Pyett, _ US_, _, 129 S Ct 1456, 1468-69, 173 L Ed 2d 398 (2009). In addition, a contract cannot prospectively waive an employee’s substantive statutory antidiscrimination protections. Id. at 1469. Thus, where a contract provides a grievance or arbitration process to resolve disputes concerning claims of discrimination, the grievance or arbitration process does not have preclusive effect over any statutory claims unless the contract expressly incorporates the statutory law. Id. at 1468-69. Here, the CBA does not expressly incorporate the statutory law. Accordingly, the adversity of PSU’s decision under Article 28.B.2 to decline to enter into the grievance process was limited to Wilson’s contractual right to the grievance process.

Within the context of the Burlington standard, we similarly conclude that a reasonable employee would not likely be dissuaded from filing a discrimination complaint because an employer defends against the complaint by seeking to consolidate the resolution of the matter into one proceeding. Accordingly, in order to establish that PSU’s reliance on Article 28.B.2 constitutes unlawful retaliation, the Association must show that Article 28.B.2 does something more than allow PSU to undertake such a defensive measure.⁶

The board did not address the Burlington standard. Rather, the board relied on numerous cases that were decided by various federal courts before the Supreme Court enunciated the material adverse action standard in Burlington. Nor could the board address the rule announced in 14 Penn Plaza LLC because the Supreme Court decided that case after the board’s decision in this case.

Nonetheless, the Association argues that the board’s reliance on various pre-Burlington federal cases was correct, because this case involves a facially discriminatory policy, whereas Burlington involved an individual claim of retaliation. However, nothing in either the antiretaliation statute, 42 USC section 2000e-3(a), or the Supreme Court’s opinion in Burlington suggests that the antiretaliation provision would be applied differently under those circumstances. Accordingly, we reject the Association’s argument.

Because the board did not apply the standard of material adversity in determining whether Article 28.B.2 is unenforceable under 42 USC section 2000e-3(a), and because the board did not have the opportunity to consider the impact of 14 Penn Plaza LLC, we reverse and remand for reconsideration under the appropriate standard.⁷

Reversed, in part, and remanded for reconsideration; otherwise affirmed.

1 In addition, the board ruled that PSU violated ORS 243.672(l)(e) when it failed to provide a report to the Association and ordered PSU to provide the report. On judicial review, PSU does not challenge that ruling. We affirm the board’s ruling on that issue without further discussion.

2 Wilson mistakenly believed that the questionnaire she had completed was a complaint, and the Association relied on her belief when it informed PSU that Wilson had filed an EEOC complaint. The EEOC subsequently determined that any complaint based on Wilson’s questionnaire would be untimely.

3 The Association also sought orders requiring PSU to enter into collective bargaining to renegotiate the terms of Article 28.B.2, ORS 243.702(1), and to disclose the investigation report of the AA/EO office. The board did not order PSU to enter into collective bargaining over the terms of Article 28.B.2, but did order PSU to disclose the investigation report. Only the second grievance filed by the Association is at issue on judicial review.

4 The Association argues that PSU failed to properly preserve this assignment of error. After reviewing the parties’ arguments, we conclude that PSU adequately preserved this assignment of error and, therefore, consider the merits of PSU’s argument.

5 ORS 659A.030(l)(f) defines an unlawful employment practice as including discriminating against any employee because that employee filed a complaint under ORS chapter 659A.

6 The dissent suggests that 14 Penn Plaza supports the proposition that, where an employer exercises its rights under the undisputed terms of an arbitration provision, the employer subjects the employee to a materially adverse consequence. See 230 Or App at 122 (Sercombe, J., dissenting) (“[T]he bargained-for collective right to grieve discrimination claims is a valuable one; axiomatically, a valuable right will be prized by a reasonable employee in the sense of protecting that right from loss.”). We do not share that understanding of 14 Penn Plaza LLC, which holds that a contract to arbitrate disputes is enforceable. Here, where the parties agree that, under Article 28.B.2, they agreed to grieve under limited conditions, we are remanding to the board to determine whether Article 28.B.2 does something more. And, if so, whether that is materially adverse under the standard set forth in Burlington, 548 US at 64.

7 The dissent criticizes our holding as unclear, asking whether we are holding that “loss of a grievance contract right is not ‘materially adverse’ ” or that the board must “engage in some factfinding on remand in order to apply the ‘appropriate standard.’ ” 240 Or App at 121 (Sercombe, J., dissenting). To be clear, the board erred in ordering PSU to submit to the grievance process because it applied the incorrect standard in determining whether Article 28.B.2 is unenforceable under 42 USC section 2000e-3(a). We reverse and remand so that the board may apply the correct standard as enunciated in Burlington. ORS 183.482(8)(a)(B). Cf. Nakashima v. Board of Education, 344 Or 497, 185 P3d 429 (2008) (concluding that the Board of Education applied an incorrect legal standard and remanding to the board to apply the correct standard).