one six steps six one eight three choice watch versus jefferson county public schools at all or argument fifteen minutes to be shared by the plaintiff and make us and fifteen minutes to be shared by the defendants mister  only to northern the supreme court defined this standard as whether the employer's actions are harmful to the point that they could well this way a reasonable worker for making or supporting a charge of discrimination not a c p a in this case provides a substantial benefit to employees to which they would not otherwise be entitled to see a provides the ability for a teacher to file a grievance and pursue arbitration over whether the employer had just cause for terminating their employment moreover the grievance star process are intended to expedite the resolution to the issue yet in operation article idea of this collective bargaining agreement will dissuade a reasonable worker and making a charge of discrimination for fear of losing the benefit of an expert at a just cause hearing first know that article ninety is not limited application to just discrimination claims article ninety states if the employer offers to pursue a complaint using another agency the parties agree to hold a that her discipline terminations were not support of a just cause as well as allegations that they were the product of unlawful discrimination were all of the grievances held in abeyance so none of them had been resolved there the she had the ability to request that the grievance process be expedited i mean could she have to some degree control the timing of when arbitration occurred or at least kind of what i'm thinking about this case i'm trying this is seems to me that this is inherently different from the cases that the parties have sided it's inherently different from sunda amount to any deprivation of rudely and i would think that given the scheme with which we you know we have your fallacies i would think the average reasonable employee would be really glad to have the opportunity to pursue what would be pursued bad just about everyone as the more robust form of realty that is these individuals are that the normal outline of the process is going to force the employee to have to make a very difficult decision during the process of their arbitration during the normal course of the two hundred sixty six days even if she dr offered him let it get to two hundred sixty six days have the arbitration there would not have been an arbitration award before the three hundred day statute of limitations expired so she would have been faced with a decision do i file with the  c to preserve my rights on the discrimination claims or do i allow this arbitrator to make a decision and having an arbitration already having occurred that's a very difficult choice for an employee who's been ten months without a paycheck they may very well not silent charge of the same thing after the e e o c completed the arbitration was occurring eighty three days after their right to sue was issued she only has ninety days to file in federal court she was not going to get an arbitration award decision prior to that deadline expiring the product of that is that individuals going to be dissuaded from filing in court for filing a charge of discrimination because if they do they have lost their right to the expedited justice process one thing that was concerning to me was the involvement of the teacher's association because i thought they were taking her position in the arbitration process they very much that we don't have a one of your claims was that the teacher's association by joining in the collective bargaining agreement which had this grievance says sation provision was  retaliatory other than the use of the word sholay discriminatory in the seventh circuit case are you in any away or any other body of case  law under title seven or any of the other employment discrimination statutes that deals with per se discrimination or is that attire a term you made up for the skerries that perhaps  well if there's no such thing as per se retaliatory this other than in your burry then even if you preval you'll find the finding that this w materially material adverse employment action there'd still be a lot more of this case to go through when the well i mean have been that day how can that be i mean that doesn't mean that the defendant doesn't get to go through and come forward with a legitimate nondiscriminatory ra discriminatory i'm not sure that you could characterize it as direct evidence i think that that characterization becomes pretty weak but the requirement does not apply in the same way to a retaliation claim the question in both circumstances is causing ition when it comes to a retaliation claim such as this claim there really is no question here about causation because she filed the charge the employer took the action that's the link that's the causal link that we're looking for there's no question of pretext they took the then y in other cases the employee will say i did this or i am a woman or whatever and that's why and the employer will say no it's not that this is a pretext so i mean you might get a good poet and you know it so in your view this is legal this carries pretty much poses the issue of whether or not this provision is retaliatory is a matter of law correct that's correct and i would also like to point out that i guess again it was you judge givens here expressed some thought that maybe this is indication that that employee then intends to pursue a lawsuit that this court said very clearly in sundance that filing a charge is not an effort necessarily to seek any remedies because the e e o c has no authority to issue remedies there really wasn't my point i mean map point was really that the plaintiffs faced with the situation have been deprived of no substantive right i mean yes there may be some daylight involved but at the time one process is being delayed she's pursuing the process that most people would consider the more robust the more the more two times the first time the arbitration stopped was when she filed an e m c charge it took the e e o c two full years to investigate that charge during which time the arbitration was on hold and if that two year period of time during which the e e o c was doing its thing this wasn't ms wopper pursuing her remedy if the arbitration had continued during those two years certainly it would resolved within those two years and there never would have been a lawsuit because she would have gotten her relief or not and there's no such thing as you click it of relief if you couldn't bring a lawsuit if she lost the arbitration if she lost the arbitration and the arbitration had fully resolved your individual claims there would be nothing left for a lawsuit so the argument the employer has made about she can get multiple the arbitration i am not an expert in arbitration and i would defer to her attorney but i would imagine she could be reinstated one of her claims is she was wrongly dismissed so i would were also stayed all of her grievances right so those had to do with other options than the termination was our interest yes there were there was one terminations grievance and there were six that were not i think there is some dispute about whether all of those involved discrimination claims as well as something else but they certainly also involve just cause claims and indeed if she had gotten the relief she was seeking there's there's no reason she would have pursued a lawsuit and again because the the initial two year delay was because of her e e o c charge and not because of litigation that delay any arbitration would have concluded we never would have been in this situation i'd also like to emphasize that the standard here is not what the district court said there is a substantive claim to establish an adverse action for a substan discrimination claim and there's a different one for retaliation which is expressly easier to prove the standard is simply whether an action could well dissuade a reasonable worker from filing a charge and  given the fact that the cheerier delay strictly from having filed the charge put her arbitration on hold certainly this provision could deter a reasonable worker from filing it doesn't mean that the fact that she filed makes the provision ok the question is a reasonable worker it's an objective standard not a subjective one the just your court considered factors that are irrelevant as did the richardson court  both of them considered that the union and the employer had agreed to the provisions so how could it be retaliatory they thought about the likelihood that employers might stop offering arbitration they said it was a reasonable way to streamline proceedings and that there was no malice simply by following something that had been agreed to in the collective bargaining agreement and all of those things might be reasonable policy considerations but as judge mannion pointed out in his concurrence and board of governors no matter how reasonable we might think those things are that's for congress congress did not put that into the statutes and in burlington northern the supreme court clearly said that the only thing to consider for adverse action in the retaliation context is whether the action could well dissuade a reasonable worker from filing the charge thank you thank you any adverse action against dr walker for a second because appellant wofford failed to prove the causal connection between her e o c charge against the teacher's association and the board of education's conduct and finally because failed to meet her burden to prove that the jefferson county teachers a source association is a labor organization engaged in industry affecting conquerors sundance board of governors burlington northern santa fe all require think my understanding is that the claim is that the adverse action is signing onto a collective bargaining agreement that withdraws the right to pursue a grievance while i see charges pending sundance the offer of a contract with a void of all provision isn't facially retaliatory and is not itself retaliatory in this case union and the school board agreed to a contractual language but we disagreed about the interpretation of that language in two thousand and eleven when the school board first moved to place dr watkins grievances in abeyance the teachers associations lawyer wrote a letter for the school board stating that we didn't agree that the contract allowed the school board to place the grievance in abeyance that we didn't agree well we said that paragraph three doesn't permit the district to refuse to arbitrate any grievance in any circumstance and the school district invited us to make that case to the arbitrator which we did when dr wofford served her complaint or filed a complaint against the school board and so my understanding is that their claim is not that you weren't representing her during the process and advocating for her position but that by signing on to the c b a you in effect waived her rights to pursue grievances because this was a provision that the school would then assert precluded grievances from going forward but that may be their argument but what's wrong with that and i you know i'm trying to get to the bottom of it what is wrong with their argument to i think there are two things at all with the first  walker does not have any right to arbitration under any circumstances according to the effect of bargaining agreement the teacher's association is the party that may choose to arbitrate and as long as it doesn't act discriminatorily or in bad faith it doesn't have to arbitrate any cases unless it wants to the school board or excuse me the teacher so so hypothetically if you thought there was nothing to some hypothetical teacher's claims  behalf of the teacher's association because we don't agree that they are permitted to do that and under the collective bargaining agreement the way to resolve those grievances to go to arbitration to take that dispute to the arbitrator which is exactly what we and of course the teacher's association made the argument not only that the collective bargaining agreement doesn't permit the the board to delay the arbitration but be adopted the ses arguments and explain to the arbitrator that if the arbitration was in fact halted then that would be retaliatory conduct because the act of whole thing it could be retaliation and the arbitrator ruled that that arbitration could be a delay therefore i sees me of retaliation even though our conduct from two thousand and eleven from the time that the grievance was the way was always attempting to get to the arbitration hearing so that if the arbitrator had ruled for us then we would be saying that it's not a retaliatory provision because it didn't deliver the tracer and that's absurd the arbitrator's decision is not what makes the retaliatory active here all the other way then we wouldn't be here because there would be no allegation that we retaliated but based on the exact same contractual language the library organization argument i don't find that in the brief the memo  maybe i'm just overlooking it but i just looked back through it again i have it here in my little notebook and i am not finding that you raised it there well i believe that a race that we certainly argued that we need fewer eyes did it would be in this memo right and yes maybe i missed it and i'm not you know sometimes during an argument if you're looking at things you miss over so i believe that we raise and you know honor we certainly raise it in the complaint and in the motion for summary judgment we denied that we were  talk about it which i think is in your appellant very you talk about how many employees you have and you know the test for lybrel good zation really one of the elements is the number of members at hand and i don't think we're given anything that either party that would really in lie about whether you are in fact of life or organisation or not well judge i would say that we are a labor organization for all intents and purposes but we're for i see my time and there's also a case about whether there was anything to the tablet story or discriminate between discover natori about a provision and a collective bargaining agreement that was negotiated years before anyone involved in this case knew anything about it and then finally there's a question of what is the party's right to freely contract with one another and establish reasonable restrictions and policies and procedures for the use of an entitlement that is being granted t employees on the issue of orderly resolution of disputes certainly that is favored in the law and we have so why not let the arbitration proceed given that it was already occurring well certainly  the provision is intended to avoid duplication of efforts two things going on it one of which what happened if the arbitration was proceeding at the same time that any you know c investigation but looking at the facts of this case the e c events took two years the arbitration had already started how could you possibly say this is just a mundane sequencing as opposed to an defeating of the purported arbitration rights or tradition was suspended  thing and we have federal judge perhaps saying yet another this is a so this is a dispute that has been fought on three different fronts at plaintiffs attempt at the same time and that is simply what the defendants are trying to avoid in this case is having to fight multiple fronts at the same time you know the relief would not be to sign my mate the arbitration and the the lawsuit are intended to address two different aspects of the same problem and what the plaintiff would have to establish is completely different i mean i'm not saying there's not duplication but it is in correct to say they're doing the same thing at the same time they in fact are doing two different the eggs there are two different things going on certainly and certainly the alternate reality available in the different forum is is different however in this case particularly in this case there is an unbelievable amount of overlap if you look at each of the grievances each of the grievances focuses on the fact that dr watson was arguing that whatever the discipline had been meted out that she was protests and to the grievances had been given in is whether there was just chaos and what th the jury did it tried to scare us ultimately if you know if it got to trial would have been something else that's correct you would end up with with the potential for differences but certainly the overlap is significant and significant to the point that  you have factual determinations in the differing forums that could be inconsistent with one another and that's really where the heart of this problem lies in my estimation i think it's also why as you pointed out the case law that cited by most of the parties doesn't address specifically the issue that's really before this court the one case that really gets close to it is the question really the group case that all of the rest of the cases really deal more with what i would call a true election or remedies situation whereas here we really have an election of the order of remedies situation well it's i mean it's a sequencing but it's not a true election because she couldn't elect to do the arbitration first and maintain her rights to found because of the tab limits that would have been imposed so certainly there are time limits there certainly there are also vehicles over to suspect two to file something immediately suspended in favor of something else which is what certainly could have happened in th circumstance was not done here for whatever reason well she doesn't have a unilateral right to file a lawsuit and have the court sit down and i mean that district judges usually have a strong point of view about whether they want something to proceed or not and most of them would err on the side of let's get go and certainly that's a possibility on however in a circumstance such as this where many of the similar claims  being dealt with and in arbitration that that at the time of the filing this lawsuit was actually in process i would think that certainly would be a reasonable request to have been made to the federal judge at that point that we can we hold language of the collective bargaining agreement that would have required your agreement would it certainly are real it would have been helpful to the co would be inapplicable because she's still pursuing her relief otherwise and so you would have to agree not to apply it or the arbitrator would have to agree not to enforce the contractual provision she couldn't do that it was that would not automatically work and an ability on the part of the arbitration to progress under your theory could she go back to arbitration after the conclusion of the federal court proceedings i think that would depend on whether the issues if there were any issues that were not covered in the federal court proceeding that were a part of the arbitration they had not been resolved there was no race judicata or collateral stop argument absolutely and frankly i think that's where we find ourselves at this point i do it to suppose that this case will return to arbitration now what we handled in arbitration will be an interesting question we had a pending motion for summary judgment relating to the bulk of plaintiff's claims at a time that plaintiff agreed to dismiss the case with prejudice so where that leaves us in terms of what is left and not left to be resolved by the arbitrator will be an interesting question but no i fully anticipate the will without going on the issue with this case of at the conclusion of this proceeding you're also in i have one quick question up what at this is it determining whether the the provision is material it well would be an adverse employment ash under the burlington northern standard  is it appropriate or your in having the provision and appropriate part of that consideration and was that at all a part of the record in connection with rationale for this project is it and i'm saying one does that matter at this point and two was there evidence in the record that the district court could consider on that point ok yes we did point out the rationale rationale was something that was that was focused on budgets russell in his opinion certainly in terms of the record i'm not sure that was per se proof of the rationale all of this was handled on the summary judgment fashion in a way yeah but i just want to raise a few points first with regard to the orderly fashion of the events that led us here six years later keep in mind that it's j c v that has held the proceedings in advance there were court within ninety days of the right to see where she forever loses those claims she simply preserving for rights she is not filing multiple charges for no good cause it's because they held the things that she has to preserve the right