2007-24

Employee Not Barred From Bringing Job Bias Claim After Filing Grievance Under Union Contract

 In Ortega v. Contra Costa Community College Dist., the California Court of Appeal has held that a collective bargaining agreement (“CBA”) grievance procedure will not eliminate an individual’s right to pursue his claim for employment discrimination under the Fair Employment and Housing Act (“FEHA”) in court, unless there is a “clear and unmistakable” waiver of this right in the CBA, and the procedures of the arbitration allow for “full litigation and fair adjudication of the FEHA claim.”

 Plaintiff Jose Ortega was the head football coach at Contra Costa Community College. On March 2, 2004, Ortega was demoted. On April 7, 2004, he filed a grievance which alleged a violation of the CBA. The grievance was denied based upon Ortega’s failure to follow proper procedure and comply with grievance timelines. Although Ortega responded to the denial, his claims were rejected on procedural grounds. After Ortega requested a Level III fact-finding panel and both sides suggested prospective panel members, the process stalled. Ortega then filed an administrative charge with the state Department of Fair Employment and Housing (“DFEH”) and received a right-to-sue notice.

 On February 25, 2005, Ortega was informed that he would be terminated at the end of the school year. In June 2005, his employment was terminated. That same month, Ortega filed a second statement of grievance which challenged the termination of his employment. This grievance was denied on the grounds that Ortega failed to properly request a hearing and failed to allege a specific violation of the CBA. In connection with the CBA grievance procedure, no further action was taken. Ortega filed a second DFEH charge and received a second right-to-sue notice.

 Ortega filed two court complaints against the school district, alleging violation of FEHA and other common law claims. The trial court granted judgment for the school district in both lawsuits, because Ortega failed to establish exhaustion of an available administrative remedy in the demotion action, and failed to allege exhaustion in the termination action.

 The Court of Appeal reversed, and held that the CBA grievance procedure does not eliminate the right to a jury’s determination of important state statutory rights afforded to individual workers unless two conditions are met. First, if the FEHA claims of a Union member are to be finally resolved by arbitration, the agreement to do so in the CBA must be “clear and unmistakable.” Second, the procedures in the arbitration must allow for the full litigation and fair adjudication of the FEHA claim. Because neither condition was satisfied in this case, the trial court improperly dismissed both of Ortega’s complaints. The judgments were reversed and the cases were sent back to the trial court for further proceedings.

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