Rivera-Rivera et al v. Thyssenkrupp Elevator Corp.
Filing
31
OPINION AND ORDER. DENIED 15 Motion for Summary Judgment. Signed by Judge Salvador E. Casellas on 9/29/2015. (RJC)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
ANGEL RIVERA-RIVERA, et al.,
Plaintiffs,
Civil No. 14-1478 (SEC)
v.
THYSSENKRUPP ELEVATOR CORP.,
Defendant.
OPINION & ORDER
Plaintiffs Angel Rivera-Rivera (Rivera), Miriam Curbelo, and their Conjugal
Partnership (Plaintiffs) bring this action alleging that Rivera suffered age-related
harassment and discrimination at the hands of Defendant ThyssenKrupp Elevator
Corp. (Defendant). They further claim that Defendant retaliated against them for filing
a charge with the Equal Employment Opportunity Commission (EEOC), and
ultimately, that Rivera was constructively discharged due to an impermissibly hostile
work environment.
Currently before the Court is Defendant’s Motion for Summary Judgment.
Docket # 15, and Plaintiffs’ Opposition, Docket # 18. For the reasons that follow,
Defendant’s Motion is DENIED.
Procedural History 1
Thyssen is a company dedicated to the installation, modernization, service and
repair of elevators and escalators. Since 1985, Rivera worked as an elevator mechanic
in Thyssen’s service department. Plaintiffs allege that from the “middle of 2006, and
1
Due to the nature of Defendant’s arguments, a detailed examination of the facts underlying Plaintiffs’ claims is
not necessary.
Civil No. 14-1478 (SEC)
Page 2
up until October of 2012,” Rivera’s workload was steadily increased, while the
workload of his other colleagues remained the same. His supervisors also constantly
pressured him to resign because he was “old and slow.” Rivera ended up diagnosed
with depression, and ultimately applied for disability benefits on September 28, 2012.
Sometime in June 2013, Rivera filed an EEOC charge in June 2013 against
Thyssen for alleged violations of Title VII of the Civil Rights Act of 1964, the Age
Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act
(ADA). Defendant says that this charge was filed on June 26, while Plaintiffs claim it
was filed on June 6.
Standard of Review
Summary judgment is appropriate only if the “movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). A dispute is genuine if a “reasonable fact-finder
could resolve in favor of either party and a material fact is one that could affect the
outcome of the case.” Flood v. Bank of Am. Corp., 780 F.3d 1, 7 (1st Cir. 2015). At
this stage, it is axiomatic that courts “may not weigh the evidence,” Casas Office
Machs., Inc. v. Mita Copystar Am., Inc., 42 F.3d 668 (1st Cir.1994), and must
construe the record in the “light most flattering” to the nonmovant. Soto-Padró v.
Public Bldgs. Authority, 675 F.3d 1 (1st Cir. 2012). A court must similarly resolve all
reasonable inferences in favor of the non-moving party. Tolan v. Cotton, 134 S.Ct.
1861, 1863 (2014) (per curiam).
Once the movant properly configures a summary-judgment motion, the burden
shifts onto the nonmovant—or “the party who bears the burden of proof at trial,”
Geshke v. Crocs, Inc., 740 F.3d 74, 77 (1st Cir. 2014)—to “point to competent
evidence and specific facts to stave off summary judgment.” Tropigas de P.R., Inc. v.
Certain Underwriters at Lloyd’s of London, 637 F.3d 53, 56 (1st Cir. 2011). The
nonmovant cannot rest on conclusory allegations and improbable inferences.
Advanced Flexible Circuits, Inc. v. GE Sensing & Inspection Technologies GmbH,
Civil No. 14-1478 (SEC)
Page 3
781 F.3d 510, 516 (1st Cir. 2015). Neither “effusive rhetoric,” Cadle Co. v. Hayes, 116
F.3d 957, 960 (1st Cir. 1997), nor “arguments woven from the gossamer strands of
speculation and surmise,” RTR Technologies, Inc. v. Helming, 707 F.3d 84, 93 (1st
Cir. 2013), suffice to forestall the entry of summary judgment. Failure to shoulder this
burden “allows the summary judgment engine to operate at full throttle.” Lawton v.
State Mut. Life Assur. Co., 101 F.3d 218, 223 (1st Cir. 1996).
Applicable Law and Analysis
Defendant moves for summary judgment on two grounds. First, that Plaintiffs
have failed to exhaust their administrative remedies within the statutory time period.
Second, that Rivera, as a union employee, is bound by his union’s Collective
Bargaining Agreement (CBA) with Defendant, which requires that Plaintiffs’ claims
be submitted to arbitration. The Court addresses each argument seriatim.
A. Plaintiffs’ claim is not time barred
Before bringing suit in federal court, the ADEA requires an employee to
exhaust their administrative remedies. 29 U.S.C. § 626(d). To do so, the employee
must file a charge with the EEOC within a statutorily-defined time period and serve
notice upon the person against whom the charge is made. See Nat'l R.R. Passenger
Corp. v. Morgan, 536 U.S. 101, 109 (2002). The ADEA contemplates two
possibilities. “In a State that has an entity with the authority to grant or seek relief with
respect to the alleged unlawful practice, an employee who initially files a grievance
with that agency must file the charge with the EEOC within 300 days of the
employment practice.” Id.; see also 29 U.S.C. §§ 626(d) & 633(b). Otherwise, the
charge must be filed within a shorter 180-day period. Id. In Puerto Rico, this entity is
the Department of Labor’s Antidiscrimination Unit (ADU).
Defendant asserts that in this case, Rivera presented his charge to the EEOC but
never filed anything with the ADU. In support of this argument, Defendant references
a letter from the Director of the ADU, attorney Myriam Costa Malaret, confirming that
Civil No. 14-1478 (SEC)
Page 4
the ADU never received Plaintiff’s administrative charge. 2 Because Plaintiffs filed
their charge with the EEOC beyond the 180-day limit, Defendant submits that their
claims are time barred.
But Plaintiffs have an ace up their sleeve. Specifically, the “workshare
agreement” between the ADU and the EEOC provides as follows:
In order to facilitate the assertion of employment rights, the EEOC and the
FEPA each designate the other as its agent for the purpose of receiving and
drafting charges, including those that are not jurisdictional with the agency
that initially receives the charges. The EEOC’s receipt of charges on the
FEPA’s behalf will automatically initiate the proceedings of both the EEOC
and the FEPA for purposes of Section 706 (c) and (e)(1) of Title VII.
See Docket # 18-2 at p. 13 (our emphasis); see also Matos Molero v. Roche Products,
Inc., 132 D.P.R. 470 (1993) (discussing the workshare agreement between the EEOC
and the Puerto Rico Antidiscrimination Unit). This reciprocity provision essentially
means that any charge filed with one agency is considered, as a matter of law, to have
been received by the other. Moreover, given the opening stanza of this paragraph, the
Court understands that the workshare agreement should be interpreted liberally in
favor of the employee seeking relief from discrimination. This provision alone
warrants the denial of Defendant’s motion, as it is uncontested that Rivera filed his
charge with the EEOC -and thus with the ADU- within the 300-day time limit.
To cement this conclusion, Plaintiffs submit the EEOC charge filed with the
EEOC on June 2015, which clearly shows that Rivera’s intention was for the charge to
be filed with both agencies. In that document, Rivera placed a conspicuous checkmark
beside a box stating as follows: “I want this charge filed with both the EEOC and the
State or Local Agency, if any.” See Docket # 18-2 at p. 7. The charge form further
provides that “State or Local Agency, if any” is the “Puerto Rico Dept. Of Labor –
Antidiscrimination Unit.” Id. Thus, notwithstanding the letter from the ADU’s
2
Although Defendant claims the letter was submitted as an exhibit to the motion for summary judgment, the
Court could not locate the same in the record. Regardless, for the reasons stated below, this omission is
immaterial.
Civil No. 14-1478 (SEC)
Page 5
Director, the Court finds that Rivera’s charge was filed with both agencies. This
means, of course, that the more lenient 300-day time limit applies. Since the parties do
not dispute that the charge was filed within this time frame, Defendant’s motion for
summary judgment on this point must be denied.
B. Plaintiffs’ claims are not pre-empted by the CBA
Thyssen employees have been unionized for various years. Thyssen and the
Union, “Los Gladiadores,” have a Collective Bargaining Agreement which governs the
terms of union members’ employment, including discipline and discharge, grievances
and arbitration. See Docket # 25-1. Plaintiffs do not dispute that Rivera was a union
member, and thus, was covered by the CBA. Defendant now argues that the CBA
expressly provides a dispute resolution procedure, which Plaintiffs were required to
exhaust, before bringing their claims to this Court. As a result, Defendant urges the
Court to dismiss these claims as improvidently brought. The Court takes a brief detour
through the CBA in order to put Defendant’s arguments in context.
Article I of the CBA expressly states that neither “the Union nor the Company
will discriminate against the employee” for reasons prohibited by law, including on
account of age. See Docket # 15 at ¶ 9. According to the CBA, the “Union will
determine, if a controversy on discrimination exists, whether to resort to arbitration or
to the Court.” Id.
The CBA provides a robust, multi-step procedure for the resolution of
employee grievances, including those relating to employment discrimination. Id. at ¶
11. In particular, Article XIII of the CBA provides that the following must be
submitted to the CBA’s dispute resolution procedure, which includes arbitration:
any controversy, dispute, conflict or any discrepancy or difference of
interpretation arises between the Union and the Company involving the
meaning or the application of the provisions of this [CBA], or any
controversy dispute or conflict between the Union and the Company on
disciplinary matters, warning letters, sanctions or the lay-off or termination
of one or more employees[.]
Civil No. 14-1478 (SEC)
Page 6
Id. Defendant argues that Plaintiffs could not circumvent the CBA’s dispute resolution
procedure by bringing an ADEA claim in federal court. According to Defendant, the
“CBA in this case made the grievance and arbitration procedure the sole and exclusive
remedy for any claims, including statutory discrimination claims.” See Docket # 15 at
¶ 10. While this argument seems reasonable on its face, the Court nevertheless finds
that it “runs aground on well-settled case law governing the arbitrability of federal
statutory claims.” Manning v. Boston Med. Ctr. Corp., 725 F.3d 34, 51 (1st Cir. 2013).
The Court starts with some basics. In O’Brien v. Town of Agawam, 350 F.3d
279 (1st Cir. 2003), the First Circuit rejected the argument that claims of unionized
employees under the Fair Labor Standards Act (FSLA) were “barred from federal
court because they are essentially contract claims for unpaid overtime” and therefore
subject to the CBA’s grievance and arbitration procedures. Manning v. Boston Med.
Ctr. Corp., 725 F.3d at 51. The First Circuit noted that the rights “conferred by
Congress are conceptually distinct from those created by private agreement, and there
is no authority for the proposition that rights under the FLSA merge into contractual
ones whenever the two overlap.” O’Brien, 350 F.3d at 284. Likewise, in this case,
there is no reason to think that Plaintiffs’ ADEA claims lose their federal statutory
underpinning simply because the CBA addresses “similar subject matter.” Manning,
725 F.3d at 51. Properly worded, then, the question is whether Plaintiffs’ ADEA
claims must be channeled through the CBA’s dispute resolution procedure.
As Defendant correctly notes, the Supreme Court’s jurisprudence on whether
arbitration is a valid method to resolve employment discrimination claims has proven
quite malleable over the years. Consistently, though, the Supreme Court has held that
in order for a CBA to subject a federal statutory claim to arbitration, any such waiver
must be “clear and unmistakable” on its face. See 14 Penn Plaza LLC v. Pyett, 556
U.S. 247, 260 (2009) (holding that union members’ age discrimination claims must be
subject to CBA’s arbitration provisions because CBA “clearly and unmistakably
requires respondents to arbitrate” them); Wright v. Universal Mar. Serv. Corp., 525
Civil No. 14-1478 (SEC)
Page 7
U.S. 70, 80 (1998) (holding that requirement contained in CBA requiring parties to
arbitrate employment discrimination claims must be clear and unmistakable, and that
“less-than-explicit” waiver was insufficient). The law is also clear that the waiver must
be specific. Broadly-worded arbitration clauses will not do; instead, “something closer
to specific enumeration of the statutory claims to be arbitrated is required.” Cavallaro
v. UMass Mem'l Healthcare, Inc., 678 F.3d 1, 7 n.7 (1st Cir. 2012).
Here, Defendant “cannot point to a single provision” of the CBA that would
work a “clear and unmistakable waiver” of Plaintiffs’ ADEA claims. Manning, 725
F.3d at 53. Certainly, the CBA here does not come even close to mentioning a specific
enumeration of the statutory claims to be arbitrated. In this sense, the CBA is strikingly
similar to the one before the First Circuit’s consideration in Manning: while its
“arbitration provisions do contain general grievance procedures” the CBA defines
grievances as “disputes or concerns arising out of the interpretation of the CBAs
themselves.” Id. Furthermore, the CBA here is miles apart from the one in Pyett, which
explicitly required the arbitration of “claims made pursuant to Title VII of the Civil
Rights Act, the Americans with Disabilities Act, the Age Discrimination in
Employment Act,” among others. Pyett, 556 U.S. at 252. It is thus clear that the CBA
between Defendant and the Union does not force a waiver on Plaintiff’s ADEA claims.
These claims are properly before the Court, and so Defendant’s motion on this ground
must be denied. 3
Conclusion
For the reasons stated above, Defendant’s Motion for Summary Judgment is
hereby DENIED.
3
Plaintiffs’ argument against dismissal does not rely on any of the caselaw cited
above. Rather, Plaintiffs simply observe that the arbitration forum selected in the
CBA, the “Negociado de Conciliacion y Arbitraje” (NCA) does not have jurisdiction,
pursuant to its own rules, to hear disputes under Title VII. If that is indeed the case,
then it beggars belief how the CBA could be construed as a waiver of Plaintiffs’ ability
to bring their claims before this Court, as it would have the effect of closing the doors
on either forum.
Civil No. 14-1478 (SEC)
Page 8
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 29th day of September, 2015.
s/ Salvador E. Casellas
SALVADOR E. CASELLAS
U.S. Senior District Judge
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