DEWAYNE  T  CARRINGTON, Complainant

GENERAL ELECTRIC, Respondent

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has reviewed the petition and the arguments of the parties. Based on its review, the commission makes the following:

The decision of the administrative law judge is reversed. The respondent's motion to dismiss/hold in abeyance is denied. This matter is remanded to the Equal Rights Division for hearing on the issue of probable cause.

Dated and mailed April 30, 2010
carride . rrr : 115 : 9

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

On January 30, 2004, the complainant signed an "Acknowledgement of Conditions of Employment." This document stated as follows, as relevant here (emphasis in original):

Instructions: please read the contents of this Acknowledgement and the documents it references carefully. Your offer of employment is contingent upon your acceptance of the conditions of employment described below....

1. I acknowledge that the offer of employment made to me is contingent upon meeting all employment requirements, including but not limited to the following:...

• that I have received and reviewed the copies of the RESOLVE Guidelines and Handbook. I agree to resolve disputes in accordance with the terms of the RESOLVE guidelines. Thus, I agree as a condition of employment, to waive the right to pursue covered claims (as defined in the Glossary in the RESOLVE Guidelines and Handbook) in court and to accept an arbitrator's award as the final, binding and exclusive determination of all covered claims....

The RESOLVE program guidelines provide as follows, as relevant here:

...NEW EMPLOYEES OF GE CAPITAL AND ITS SUBSIDIARIES
BY ACCEPTING AN OFFER OF EMPLOYMENT ON OR AFTER THE EFFECTIVE DATE OF THIS PROCEDURE (6/1/2000) ALL COVERED EMPLOYEES ASSIGNED TO THE COMPANY AT A U.S. BASED OFFICE, AGREE, AS A CONDITION OF EMPLOYMENT, TO WAIVE THE RIGHT TO PURSUE COVERED CLAIMS IN COURT AND TO ACCEPT AN ARBITRATOR'S AWARD AS THE FINAL, BINDING AND EXCLUSIVE DETERMINATION OF ALL COVERED CLAIMS. ...

I. Filing Charges with Government Agencies

Nothing in this procedure is intended to discourage or interfere with the legally protected rights of employees to file administrative claims or charges with government agencies. Such agencies include, but are not limited to, the Equal Employment Opportunity Commission (EEOC), the Office of Federal Contract Compliance (OFCCP), various state agencies responsible for Equal Employment Opportunity, and the National Labor Relations Board (NLRB)....

However, if an employee files a charge with the EEOC, OFCCP, or with state or municipal agencies, the Company may request the agency to defer its processing of the charge until the employee and the Company have completed the RESOLVE procedure....

L. Covered Claims

...Covered claims are personal, employment-related claims against the Company...that a court in the jurisdiction in question would have the authority to decide under any municipal, state, or federal statute, regulation, or application of common law...and include, but are not limited to the following:...

• Employment discrimination and harassment claims, based on, for example, age, race, sex, religion, national origin, veteran status, citizenship, handicap/disability, or other characteristics protected by law;

• Retaliation claims for legally protected activity, and/or for whistleblowing;...

On March 21, 2007, the complainant filed a charge with ERD alleging that he had been discriminated against on the basis of race, sex, and age, and retaliated against for engaging in a protected fair employment activity.

On December 9, 2008, an ERD investigator issued a determination of no probable cause as to each allegation. The complainant filed a timely appeal of these no probable cause determinations.

On March 31, 2009, respondent filed a motion to dismiss/hold in abeyance based upon the arbitration provision in the RESOLVE agreement.

On April 24, 2009, the ALJ granted the respondent's motion to dismiss.

On March 14, 2009, the complainant filed an appeal of this decision.

The parties requested a briefing schedule, and LIRC established one. On June 21, 2009, the complainant requested an extension of this schedule and LIRC granted his request. Under the revised briefing schedule, the complainant's brief was due September 8, 2009. The complainant, to date, has not filed a brief in this matter. The revised briefing schedule was completed on October 23, 2009.

The respondent, in its Acknowledgement document, and its RESOLVE guidelines, makes a distinction between actions filed in court and those filed with administrative agencies. The basis for this distinction is not explained. Moreover, the respondent does not detail in either of these documents the process required to be followed when an action filed initially with an administrative agency is appealed to court.

If the language of the these documents had stated that arbitration through the RESOLVE process was the final, binding, and exclusive means for resolving all state claims, it would be arguable that the complainant's charge should be dismissed, consistent with the U.S. Supreme Court decisions in Circuit City Stores, Inc., v. Saint Clair Adams, 532 U.S. 105 (2001); Southland Corp. v. Keating, 465 U.S. 1 (1984); and Allied-Bruce Terminix Cos. v. Dobson 513 U.S. 265 (1995). In the Circuit City case, the Court, relying upon its prior holdings in Southland and Allied-Bruce, upheld the enforceability, pursuant to the Federal Arbitration Act (9 U.S.C. 1), of provisions in employment contracts specifying binding arbitration as the exclusive and final remedy for claims under state law, including discrimination claims.

Here, however, as detailed above, the respondent makes a distinction between claims filed in court, for which arbitration through the RESOLVE process is the exclusive and final remedy, and those, as here, filed in an administrative forum, for which it is not.

Effectively, as a result, the complainant never agreed that binding arbitration would be the exclusive and final remedy for the claims at issue. Consequently, the ALJ's dismissal order must be reversed and this matter remanded to the Equal Rights Division for hearing on the issue of probable cause.

The respondent requests in the alternative that the ERD proceedings be held in abeyance pending the outcome of the respondent's RESOLVE process. This would make sense if the resulting arbitration decision would have preclusive effect on any ERD/LIRC decision of this matter. However, as the commission has held, although an arbitrator's decision may have some persuasive value under certain circumstances, it would not preclude ERD/LIRC from examining de novo the issue of whether an employee has been discriminated against within the meaning of the WFEA. Betters v. Kimberly Area Schools, ERD Case No. CR200300554 (LIRC Nov. 28, 2007, citing Alexander v. Gardner-Denver, 415 U.S. 36 (1974); Krueger v. Dept. of Transportation, ERD Case No. 7700157 (LIRC Oct. 4, 1982). Since the completion of the RESOLVE process would not relieve ERD/LIRC of its responsibility to process and resolve this case, further delay is not merited in order to complete the RESOLVE process, and the respondent's request that ERD hold this matter in abeyance is denied.

cc: Attorney Michael Aldana

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uploaded 2010/05/03