Reynalda Weeks v. 735 Putnam Pike Operations, LLC d/b/a Greenville Skilled Nursing and Rehabilitation , 2014 R.I. LEXIS 23 ( 2014 )

Supreme Court
No. 2012-356-Appeal.
(PC 11-5663)
Reynalda Weeks :
v. :
735 Putnam Pike Operations, LLC d/b/a :
Greenville Skilled Nursing and
Rehabilitation.
NOTICE: This opinion is subject to formal revision before
publication in the Rhode Island Reporter. Readers are requested to
notify the Opinion Analyst, Supreme Court of Rhode Island, 250
Benefit Street, Providence, Rhode Island 02903, at Telephone 222-
3258 of any typographical or other formal errors in order that
corrections may be made before the opinion is published.
Supreme Court
No. 2012-356-Appeal.
(PC 11-5663)
Reynalda Weeks :
v. :
735 Putnam Pike Operations, LLC d/b/a :
Greenville Skilled Nursing and
Rehabilitation.
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
OPINION
Justice Robinson, for the Court. The plaintiff, Reynalda Weeks, appeals from an order
of the Providence County Superior Court entered on January 30, 2012, staying her civil action in
that court and ordering that the “matter * * * be resolved through binding arbitration as required
by the governing Collective Bargaining Agreement between the parties.” This case came before
the Supreme Court pursuant to an order directing the parties to appear and show cause why the
issues raised in this appeal should not be summarily decided. After a close review of the record
and careful consideration of the parties’ arguments (both written and oral), 1 we are satisfied that
cause has not been shown and that this appeal may be decided at this time. For the reasons set
forth in this opinion, we vacate the order of the Superior Court.
1
In addition to our perusal of the briefs of the parties, we have also given due
consideration to the points made by the Rhode Island Commission for Human Rights in its
amicus curiae brief.
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I
Facts and Travel
On September 30, 2011, plaintiff filed a complaint in Superior Court seeking damages as
well as equitable and declaratory relief for alleged violations of the Rhode Island Civil Rights
Act (RICRA) (codified in G.L. 1956 §§ 42-112-1 to -2) and the Rhode Island Fair Employment
Practices Act (FEPA) (codified in G.L. 1956 §§ 28-5-1 to -42).2 The defendant, 735 Putnam
Pike Operations, LLC d/b/a Greenville Skilled Nursing and Rehabilitation, is plaintiff’s former
employer. In her complaint, plaintiff describes herself as being a “black” female and she alleges
that during her employment by defendant she was subjected to a “hostile work environment” on
account of her “race and color” stemming from what she characterized as “derogatory and
disparate treatment” by her supervisor. She further alleges that she was “constructively
terminated” on July 18, 2010.3
The defendant responded to plaintiff’s complaint by filing a “Motion to Stay
Proceedings” arguing that the “proper forum for resolution of the [p]laintiff’s employment
discrimination and wrongful termination claim [was] binding arbitration.” On January 19, 2012,
a hearing was held in the Superior Court on defendant’s motion to stay, during which plaintiff
conceded that she was a “member of the union” and was subject to the collective bargaining
agreement (CBA) between the union and defendant until the time of her alleged “constructive[]
2
The FEPA and the RICRA prohibit employment discrimination based on, among other
things, race and color. See G.L. 1956 § 28-5-7; G.L. 1956 § 42-112-1.
3
The plaintiff alleges in her complaint that she timely filed a charge of discrimination
with the Rhode Island Commission for Human Rights and thereafter was issued a “Notice of
Right to Sue.”
-2-
terminat[ion].”4 An order was subsequently entered on January 30, 2012, in which the hearing
justice granted defendant’s motion to stay and ordered that the “matter * * * be resolved through
binding arbitration as required by the governing Collective Bargaining Agreement between the
parties.” It is that order which is the subject of plaintiff’s appeal.
II
Issue on Appeal
On appeal, plaintiff contends that the hearing justice erred when she granted defendant’s
motion to stay and ordered the parties to resolve their dispute through binding arbitration.
According to plaintiff, the hearing justice’s decision was in error because the CBA’s arbitration
provision does not preclude plaintiff from asserting her statutorily created rights (under the
RICRA and the FEPA) in a judicial forum.
III
Analysis
A
Appeal of the Superior Court Order
The defendant initially argues that, because the hearing justice’s order granting its motion
to stay was not a final order, plaintiff does not have what it terms “an Appeal as of Right” to this
Court. As defendant correctly points out, a party may petition this Court for a writ of certiorari
in order to seek appellate review of a decision which is not final (i.e., an interlocutory decision).
See, e.g., In re Joseph J., 465 A.2d 150, 151 (R.I. 1983). The plaintiff in the instant case did not
petition this Court for a writ of certiorari, but rather filed a direct appeal from the hearing
4
For the purpose of addressing the issue presently before us, we need delve no further into
the events which gave rise to the substantive allegations in plaintiff’s complaint.
-3-
justice’s interlocutory order granting defendant’s motion to stay. Consequently, defendant
argues, plaintiff’s appeal must be dismissed.5
The defendant cites McAuslan v. McAuslan, 34 R.I. 462, 83 A. 837 (1912) for the
principle that “a decree must be final to be appealable as of right.”6 We are in agreement with
defendant that, as a general rule, appeals from interlocutory orders are not permitted. See
Boranian v. Richer, 983 A.2d 834, 837 (R.I. 2009). However, that rule is not absolute. See id.
In this jurisdiction, interlocutory appeals are permitted if they fall within one of two exceptions.
Id.
The first exception is statutory: pursuant to G.L. 1956 § 9-24-7, a party may appeal
certain interlocutory orders. However, as defendant accurately points out, an appeal from a
motion to stay, as is presented in the instant case, is not one of the specifically enumerated
interlocutory orders from which § 9-24-7 permits an appeal.7
5
The plaintiff does not make any direct argument in her statement filed pursuant to Article
I, Rule 12(A) of the Supreme Court Rules of Appellate Procedure regarding whether she was
entitled to bring her appeal directly, rather than being required to petition for a writ of certiorari.
She simply states that she filed a notice of appeal pursuant to Polytop Corp. v. Chipsco, Inc., 826
A.2d 945 (R.I. 2003). In Polytop Corp., as is true with respect to the instant case, the plaintiff
appealed from a trial justice’s order granting the defendant’s motion to stay and ordering the
parties to arbitrate. Id. at 946. However, the decision in Polytop Corp. does not specifically
discuss the procedural route through which the appeal was presented to this Court and, therefore,
is not instructive on that issue.
6
The defendant further relies on Bjartmarz v. Pinnacle Real Estate Tax Service, 771 A.2d
124 (R.I. 2001). In Bjartmarz, this Court was confronted with an appeal of a motion to stay
which arrived in this Court by means of a writ of certiorari. Id. at 126-28. This Court’s decision
in Bjartmarz does not specifically address whether petitioning for a writ of certiorari was the
appropriate procedural method of presenting the case to this Court. Id. Consequently,
Bjartmarz, like the Polytop Corp. decision cited by plaintiff, is not instructive.
7
An appeal of an interlocutory order is permitted to be taken, under G.L. 1956 § 9-24-7,
“in like manner as from a final judgment” when “an injunction shall be granted or continued, or a
receiver appointed, or a sale of real or personal property ordered * * * .” See also Boranian v.
Richer, 983 A.2d 834, 837 (R.I. 2009).
-4-
The second exception is “judicial in origin.” Boranian, 983 A.2d at 837. In McAuslan,
this Court announced a rule, which “has been reiterated innumerable times since,” permitting
appellate review of “an order or decree which, although in a strict sense interlocutory, does
possess such an element of finality that action is called for before the case is finally terminated in
order to prevent clearly imminent and irreparable harm.” Town of Lincoln v. Cournoyer, 118
R.I. 644, 648-49, 375 A.2d 410, 412-13 (1977) (citing McAuslan, supra). If this Court deems the
appeal appropriate under McAuslan then we will treat it as a final order.
In Boranian, 983 A.2d at 837, we dealt specifically with an issue involving arbitration,
and we stated that, “when an arbitrator’s jurisdiction is in question, a Superior Court order
compelling arbitration has an element of finality that may be heard on appeal.” Our decision in
Boranian was consistent with our earlier decision in Forte Brothers, Inc. v. State Department of
Transportation, 541 A.2d 1194, 1196 (R.I. 1988), in which we stated:
“We consider that an order [compelling] arbitration [of contract
disputes] has sufficient elements of finality * * * so that appellate
review is called for before the case is finally terminated. In these
days of significant trial delay, an order that requires a party to go
forward with arbitration should be tested in this court upon the
application of the objecting party before requiring the case to be
fully litigated in a tribunal whose jurisdiction has been
challenged.”
We perceive no material difference between what is at issue in the instant case and the principles
relied upon in Boranian and Forte Brothers. Accordingly, plaintiff’s appeal from the trial
justice’s order granting defendant’s motion to stay is proper. Consequently, we shall now
address the substantive issues raised by plaintiff.
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B
The Standard of Review
We have consistently held that “whether a dispute is arbitrable is a question of law that
this Court reviews de novo.”8 State Department of Corrections v. Rhode Island Brotherhood of
Correctional Officers, 866 A.2d 1241, 1247 (R.I. 2005); see also Providence School Board v.
Providence Teachers Union, Local 958, AFT, AFL-CIO, 68 A.3d 505, 508 (R.I. 2013); Stanley-
Bostitch, Inc. v. Regenerative Environmental Equipment Co., 697 A.2d 323, 325 (R.I. 1997); cf.
DeFontes v. Dell, Inc., 984 A.2d 1061, 1066 (R.I. 2009) (“We review the trial court's denial of a
motion to compel arbitration de novo.”). We are cognizant of the fact that the case before us
differs from the usual case concerning arbitrability, where our role is to decide whether the
parties contractually agreed to have the dispute at issue resolved by arbitration. Here, by
contrast, the issue is whether the arbitral process should not occur because plaintiff has opted for
a judicial forum. Nevertheless, there is such a conceptual similarity between the two types of
cases that we are entirely comfortable in relying on traditional arbitrability principles as we begin
our analysis of the issues before us.
When evaluating competing contentions about arbitrability, “we bear in mind that
[a]rbitration is a matter of contract and a party cannot be required to submit to arbitration any
8
Notably, we apply a “more searching standard of judicial review [with respect to] the
issue of arbitrability than our limited review of [a] substantive arbitration award.” State
Department of Corrections v. Rhode Island Brotherhood of Correctional Officers, 866 A.2d
1241, 1247 (R.I. 2005).
The defendant contends that this Court should employ an abuse of discretion standard of
review in this case because we are reviewing an interlocutory order; plaintiff has chosen not to
address which standard of review should apply. In support of its contention defendant cites New
England Stone, LLC v. Conte, 962 A.2d 30 (R.I. 2009). However, the decision in New England
Stone calls for the abuse of discretion standard of review to be employed with respect to the
issuance of a preliminary injunction; it does not discuss the standard of review to be applied to
appeals from interlocutory orders generally. Id. at 32. Such review is controlled by the subject
matter of the order and not by its interlocutory nature.
-6-
dispute which it has not agreed so to submit.” AVCORR Management, LLC v. Central Falls
Detention Facility Corp., 41 A.3d 1007, 1010 (R.I. 2012) (internal quotation marks omitted).
Consequently, “[a] duty to arbitrate a dispute arises only when a party agrees to arbitration in
clear and unequivocal language; and, even then, the party is only obligated to arbitrate issues that
it explicitly agreed to arbitrate.” State Department of Corrections, 866 A.2d at 1247.
C
Arbitration
The plaintiff contends that the hearing justice erred in determining that she must submit
her claim to binding arbitration under the CBA; she argues that she cannot be said to have
waived her right to a judicial forum to enforce her statutorily created employment rights
conferred by the RICRA and the FEPA. Specifically, she argues that the provisions in the CBA
at issue in this case are materially different from those deemed to have constituted such a waiver
of a judicial forum in the leading United States Supreme Court case relied on by defendant, 14
Penn Plaza LLC v. Pyett, 556 U.S. 247 (2009). Instead, plaintiff relies heavily on earlier
decisions of the Supreme Court in Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974), and
Wright v. Universal Maritime Service Corp., 525 U.S. 70 (1998), to support her argument that
she did not “clear[ly] and unmistak[ably]” waive her statutorily created right to a judicial forum.
The defendant counters that the hearing justice properly applied 14 Penn Plaza, and it
points out that the instant case is distinguishable from the several cases cited by plaintiff because
plaintiff’s claims arise under state rather than federal law—even though, ironically, defendant
itself relies on federal case law. The defendant adds that the hearing justice properly found that
the CBA informed plaintiff of her agreement to arbitrate and was controlling. It further posits
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that Rhode Island has “recognized that a union and an employer may agree that statutory claims
must be resolved through grievance procedures.”
The hearing justice, when granting defendant’s motion to stay, stated that she was
“mindful” of 14 Penn Plaza; she proceeded to reason that the provisions of the CBA were “clear
and unambiguous” and “explicitly informed the plaintiff of the agreement to arbitrate;” therefore,
according to the hearing justice, the arbitration provision of the CBA was “controlling.”
Before addressing the federal case law referenced by the parties and the hearing justice,
we turn first to our own case law for instruction. We have held that “[n]o one is under a duty to
arbitrate unless with clear language he [or she] has agreed to do so,” Providence School Board,
68 A.3d at 509 (internal quotation marks omitted), and, consequently, “a finding that contracting
parties have agreed to substitute arbitration for adjudication must rest on clear contract language
as evidence of definite intent to do so.” Polytop Corp. v. Chipsco, Inc., 826 A.2d 945, 947 (R.I.
2003). An examination of a collective bargaining agreement “must demonstrate evidence of
mutual assent to arbitration.” Id.; see also Blackstone Valley Gas & Electric Co. v. Rhode Island
Power Transmission Co., 64 R.I. 204, 223, 12 A.2d 739, 749 (1940) (“The arbitrator derives his
jurisdiction from a mutual agreement of the parties to submit the matter to arbitration.”).
Accordingly, we must begin our analysis of the arbitrability of plaintiff’s employment
discrimination claims by looking directly at the language of the CBA to which plaintiff and
defendant were both parties. See State Department of Corrections, 866 A.2d at 1247
(“Arbitration is a creature of the contract between the parties * * * .”); Bush v. Nationwide
Mutual Insurance Co., 448 A.2d 782, 784 (R.I. 1982) (“[A] party is bound only to arbitrate those
issues that he has consented to arbitrate.”).
-8-
At the outset we are confronted with the reality that the CBA at issue in the instant case
does contain an anti-discrimination clause in Article 4 which is entitled “NO
DISCRIMINATION” and provides as follows:
“Neither the Employer nor the Union shall discriminate
against or in favor of any Employee on account of race, color,
creed, national origin, sex, sexual preference, age, mental
disability, physical disability, or activity with respect to the
Union.”
Alleged violations of the just-quoted provision may be grieved as provided in Article 23 of the
CBA, which provides in pertinent part as follows:
“The purpose of this Article is to establish a procedure for
the settlement of grievances which involve the interpretation and
application of a specific provision of this Agreement. A grievance
shall mean a complaint by an Employee that as to him/her the
Employer has interpreted and applied this Agreement in violation
of a specific provision hereof. All such grievances will be handled
as provided in this Article.”
Section 4 of Article 24, which addresses arbitration, reads in relevant part as follows:
“The arbitrator shall have jurisdiction only over disputes
arising out of grievances as defined in [Article 23 of the CBA] and
he/she shall have no power to add to, subtract from, or modify in
any way any of the terms of this Agreement.”
The language in the CBA does not contain any express reference to the rights of an employee
under the RICRA and the FEPA, which certainly provides a predicate for a non-frivolous
argument that there is no clear indication in the CBA of a mutual agreement to arbitrate such
claims. See Providence School Board, 68 A.3d at 509; Polytop Corp., 826 A.2d at 947.
However, the CBA does contain language which prohibits discrimination based on “race” or
“color,” which would seemingly cover plaintiff’s claims in the instant case. Consequently, the
language of the CBA alone is not determinative, and we are left with the following question:
What language must be present in a CBA to constitute a waiver by an employee of the right to
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raise employment discrimination claims under Rhode Island law (specifically the RICRA and the
FEPA) in a judicial forum?
In answering the above question, our application of the doctrine of election of remedies
in circumstances similar to the instant case provides some helpful contextual guidance. The
doctrine of election of remedies “is one that is grounded in equity and is designed to mitigate
unfairness to both parties by preventing double redress for a single wrong.” State Department of
Environmental Management v. State Labor Relations Board, 799 A.2d 274, 277 (R.I. 2002). We
have held that, when grievance procedures in a CBA have been invoked, the individual or
organization pursuing the grievance is “barred from subsequently seeking redress in the Superior
Court.” Id.; see Cranston Teachers’ Association v. Cranston School Committee, 423 A.2d 69,
70-71 (R.I. 1980) (holding that, since the teachers’ association seeking to recover back pay
withheld during a wage freeze had utilized the grievance process referenced in the CBA, it had
elected its remedy and could not bring its claim in Superior Court); see also Rhode Island
Employment Security Alliance, Local 401, S.E.I.U., AFL-CIO v. State Department of
Employment and Training, 788 A.2d 465, 466-68 (R.I. 2002); City of Pawtucket v. Pawtucket
Lodge No. 4, Fraternal Order of Police, 545 A.2d 499, 500, 503 (R.I. 1988).
Our decision in Cipolla v. Rhode Island College, Board of Governors for Higher
Education, 742 A.2d 277 (R.I. 1999) is particularly instructive. In that case, the plaintiff, an
employee of Rhode Island College, filed a grievance alleging that he was not enrolled in TIAA-
CREF (a private pension program in which state employees participate) on the correct date, in
breach of the pertinent collective bargaining agreement. Id. at 279. His grievance was denied,
and he did not proceed to arbitration as he had a right to do under the collective bargaining
agreement between the parties. Id. Instead, he filed a claim in Superior Court. Id. This Court
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upheld the Superior Court’s decision granting the defendant’s motion for summary judgment and
ruled that the case “fit[] squarely” within the election of remedies doctrine; we further stated that,
“when one party to a CBA attempts to take advantage of the grievance procedure and loses, the
election of remedies doctrine prohibits that party from pursuing the same dispute in the courts of
this state.” Id. at 281 (citing City of Pawtucket, 545 A.2d at 502-03).
Unlike the situation at issue in Cipolla, it is clear in the instant case that, if plaintiff
availed herself at all of the grievance procedure available under the CBA, she did so only with
respect to the very preliminary steps in the grievance procedure.9 Consequently, the doctrine of
election of remedies, as applied in our decision in Cipolla, is not applicable; however Cipolla
remains instructive because the plaintiff in Cipolla, like plaintiff in the instant case, relied on
Gardner-Denver and Wright. See Cipolla, 742 A.2d at 281. In our opinion in Cipolla, we
concluded that those two decisions of the United States Supreme Court had “no precedential
effect” because the Supreme Court was addressing the rights of employees under federal statutes
whereas Cipolla involved an issue “purely of state law.” Id. at 281, 282. Importantly, in our
opinion in Cipolla, we further stated as follows:
“Even if we consider Wright and Gardner-Denver for their
persuasive value, we do not believe that the rule of these cases
should be applied to the case at bar. As we have noted, Wright and
Gardner-Denver dealt with important federal antidiscrimination
statutes. The Supreme Court noted that there were overwhelming
public policy reasons for preserving access to the judicial forum
for consideration of civil rights claims. Gardner-Denver, 415 U.S.
at 47-49 * * * . The same concerns are simply not present in this
case. The statutory right that the plaintiff attempted to redeem dealt
9
There is a dispute between the parties regarding whether a grievance was filed by
plaintiff and regarding whose responsibility it would have been to see to it that such a grievance
was pursued. However, the parties do not contest that, if a grievance was indeed filed, it never
progressed even to Step Two of the grievance procedure as prescribed in Article 23, section 1 of
the CBA. (In Step Two a grievance is “reduced to writing, signed by the grievant and his/her
Union representative, and presented to the Administrator of the facility or his/her designee.”)
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only with a term or condition of employment that also apparently
was regulated by the CBA. There is no evidence that the
Legislature regarded that right as being so important that
individuals should have access to two different forums to enforce
it. Once the plaintiff entered the grievance procedure, he had
selected the remedy to adjudicate his claim, and he should have
pursued that remedy to its conclusion.” Cipolla, 742 A.2d at 282.
After a detailed review of the facts and travel of the instant case and after careful
consideration of the state statutes under which plaintiff seeks to litigate her claim, it is clear that
we are now confronted with precisely the type of situation which we said in Cipolla was not
involved there—namely, a case premised on antidiscrimination statutes (the RICRA and the
FEPA) concerning which there are important reasons of public policy that militate in favor of
preserving the right of access to a judicial forum absent a very specific waiver of that right.10
Consequently, while 14 Penn Plaza, Wright, and Gardner-Denver lack precedential effect
10
In 1949, the General Assembly passed the FEPA in order to “assure equal employment
opportunities for all persons by eliminating discriminatory practices.” Folan v. State Department
of Children, Youth, and Families, 723 A.2d 287, 290 (R.I. 1999). Section 28-5-2 specifically
states as follows with respect to the discrimination which the FEPA was passed to counteract:
“Such discrimination foments domestic strife and unrest, threatens
the rights and privileges of the inhabitants of the state, and
undermines the foundations of a free democratic state. The denial
of equal employment opportunities because of such discrimination
and the consequent failure to utilize the productive capacities of
individuals to their fullest extent deprive large segments of the
population of the state of earnings necessary to maintain decent
standards of living, necessitates their resort to public relief, and
intensifies group conflicts, thereby resulting in grave injury to the
public safety, health, and welfare.”
Subsequently, in 1990, the General Assembly passed the RICRA in order to provide “broad
protection against all forms of discrimination in all phases of employment.” Horn v. Southern
Union Co., 927 A.2d 292, 293 (R.I. 2007) (internal quotation marks omitted). As we have
remarked in the past, the FEPA and the RICRA “enforce the rights of the public and implement a
public policy that the [L]egislature considered to be of major importance.” Folan, 723 A.2d at
291, 292 (internal quotation marks omitted) (reiterating that the public policy underlying the
RICRA and the FEPA is a “broad, fundamental public policy which fulfills paramount
purposes”).
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because they address federal law, we respectfully consider the potentially persuasive value of the
Supreme Court’s reasoning therein as we grapple with the question of what language is required
in a collective bargaining agreement for an employee who alleges employment discrimination to
be deemed to have waived his or her access to the judicial forum for those claims.11
In Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974), the plaintiff brought an action
under Title VII of the Civil Rights Act of 1964 (codified in 42 U.S.C. §§ 2000e to 2000e-17),
and the Supreme Court was tasked with deciding “under what circumstances, if any, an
employee’s statutory right to a trial de novo under Title VII may be foreclosed by prior
submission of his claim to final arbitration under the nondiscrimination clause of a collective-
bargaining agreement.”12 Gardner-Denver, 415 U.S. at 38. The collective bargaining agreement
at issue stated that “[n]o employee will be discharged, suspended or given a written warning
notice except for just cause,” and it “contained a broad arbitration clause covering differences
aris[ing] between the Company and the Union as to the meaning and application of the
provisions of [the collective bargaining agreement] and any trouble arising in the plant.” Id. at
39-40 (internal quotation marks omitted). The Supreme Court observed that both the federal
District Court and the Court of Appeals which had considered the issue “evidently thought that
[the result in the case at bar] was dictated by notions of election of remedies and waiver and by
the federal policy favoring arbitration of labor disputes * * * .” Id. at 45-46. However, the Court
11
This Court has historically looked to federal precedent for some degree of enlightenment
and guidance when we are engaged in the process of construing our state employment
discrimination statutes. See, e.g., Shoucair v. Brown University, 917 A.2d 418, 426 (R.I. 2007);
Casey v. Town of Portsmouth, 861 A.2d 1032, 1036 (R.I. 2004).
12
We note that the plaintiff’s grievance in Alexander v. Gardner-Denver Co., 415 U.S. 36
(1974), had gone through the arbitration process without success; the arbitrator ruled that the
plaintiff was “discharged for just cause” and, thus, the collective bargaining agreement was not
violated. Id. at 42 (internal quotation marks omitted).
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disagreed with that conclusion; it stated that the doctrine of election of remedies had “no
application” in the context of the case because submitting a grievance to arbitration vindicated a
contractual right whereas filing a lawsuit asserted an “independent statutory right[].” Id. at 49-
50; see also Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728, 737 (1981) (“While
courts should defer to an arbitral decision where the employee’s claim is based on rights arising
out of the collective-bargaining agreement, different considerations apply where the employee’s
claim is based on rights arising out of a statute designed to provide minimum substantive
guarantees to individual workers.”).
Finding that “in enacting Title VII, Congress had granted individual employees a
nonwaivable, public law right to equal employment opportunities that was separate and distinct
from rights created through * * * collective bargaining,” Barrentine, 450 U.S. at 737-38, the
Supreme Court held that an employee “does not forfeit his right to a judicial forum for claimed
discriminatory discharge in violation of Title VII * * * if ‘he first pursues his grievance to final
arbitration under the nondiscrimination clause of a collective-bargaining agreement.’” Wright,
525 U.S. at 75-76 (quoting Gardner-Denver, 415 U.S. at 49).
Over twenty years later, the Supreme Court was again confronted with a similar issue in
Wright v. Universal Maritime Service Corp., 525 U.S. 70 (1998). The appeal in Wright raised
the following question: “whether a general arbitration clause in a collective-bargaining
agreement * * * requires an employee to use the arbitration procedure for an alleged violation of
the Americans with Disabilities Act of 1990 * * * 42 U.S.C. § 12101 et seq.” Wright, 525 U.S.
at 72. The Supreme Court held that any waiver of an employee’s statutorily created rights in a
collective bargaining agreement would have to be “clear and unmistakable.” Id. at 80 (“[T]he
right to a federal judicial forum is of sufficient importance to be protected against less-than-
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explicit union waiver in a CBA.”). With respect to the particular collective bargaining
agreement at issue, the Supreme Court observed that it contained only a general arbitration
provision,13 providing for “arbitration of matters under dispute,” and, thus, contained no
sufficiently clear and unmistakable waiver of statutory rights under the Americans with
Disabilities Act. Id. at 80.14
In Wright, 525 U.S. at 82, the Supreme Court added that it did not “reach the question
[of] whether such a [clear and unmistakable] waiver would be enforceable.” However, the
Supreme Court subsequently answered that question in the affirmative in 14 Penn Plaza LLC v.
Pyett, 556 U.S. 247 (2009).15 In 14 Penn Plaza the plaintiffs submitted their employment
discrimination claims to arbitration pursuant to the collective bargaining agreement between the
parties, and they brought a claim for employment discrimination in federal court under the Age
Discrimination in Employment Act of 1967 (codified in 29 U.S.C. §§ 621 to 634). 14 Penn
Plaza, 556 U.S. at 251. The collective bargaining agreement between the parties provided as
follows:
“NO DISCRIMINATION. There shall be no discrimination against
any present or future employee by reason of race, creed, color, age,
disability, national origin, sex, union membership, or any
13
The Supreme Court noted that the collective bargaining agreement at issue in Wright v.
Universal Maritime Service Corp., 525 U.S. 70 (1998), unlike the one at issue in Gardner-
Denver, did not contain “its own specific antidiscrimination provision.” Id. at 80.
14
See also O’Brien v. Town of Agawam, 350 F.3d 279, 285-86 (1st Cir. 2003) (holding that
an arbitration provision that applied “only to grievances, which in turn [were] defined as
allegations that the [employer] violated the CBA” and contained no reference to statutory claims
did not constitute a clear and unmistakable waiver) (emphasis in original) (internal quotation
marks omitted).
15
See David L. Gregory & Edward McNamara, Mandatory Labor Arbitration of Statutory
Claims, and the Future of Fair Employment: 14 Penn Plaza v. Pyett, 19 Cornell J.L. & Pub. Pol’y
429 (2010) (a scholarly article analyzing and discussing the Supreme Court’s decision in 14 Penn
Plaza).
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characteristic protected by law, including, but not limited to,
claims made pursuant to Title VII of the Civil Rights Act, the
Americans with Disabilities Act, the Age Discrimination in
Employment Act, the New York State Human Rights Law, the
New York City Human Rights Code, ... or any other similar laws,
rules, or regulations. All such claims shall be subject to the
grievance and arbitration procedures (Articles V and VI) as the
sole and exclusive remedy for violations. Arbitrators shall apply
appropriate law in rendering decisions based upon claims of
discrimination.” 14 Penn Plaza, 556 U.S. at 252 (emphasis added).
The Supreme Court held that the above-quoted language was sufficient to meet the test set out in
Wright; it stated that the collective bargaining agreement at issue “clearly and unmistakably
require[d] [the parties] to arbitrate the age-discrimination claims at issue in [the] appeal.”16 Id. at
260. With regard to Gardner-Denver, the Supreme Court in 14 Penn Plaza stated that that earlier
decision did “not control the outcome where, as [was the case in 14 Penn Plaza], the collective-
bargaining agreement’s arbitration provision expressly cover[ed] both statutory and contractual
discrimination claims,” noting that “[s]ince the employees [in Gardner-Denver] had not agreed to
arbitrate their statutory claims, and the labor arbitrators were not authorized to resolve such
claims, the arbitration in those cases understandably was held not to preclude subsequent
statutory actions.”17 Id. at 264.
We read Gardner-Denver, Wright, and 14 Penn Plaza to stand for the proposition that,
when a collective bargaining agreement clearly and unmistakably waives the right to pursue
16
The Supreme Court in its decision in 14 Penn Plaza LLC v. Pyett, 556 U.S. 247 (2009)
noted that there was no evidence that Congress intended to exempt age discrimination claims
under the Age Discrimination in Employment Act from arbitration. Id. at 255-60.
17
While the Supreme Court in 14 Penn Plaza took issue with some aspects of the Gardner-
Denver decision, nothing in the 14 Penn Plaza decision “suggests any wavering in the Court’s
commitment to the traditional separation between contractual CBA rights and statutory Title VII
rights.” United States v. Brennan, 650 F.3d 65, 123 n.56 (2d. Cir. 2011); see generally Manning
v. Boston Medical Center Corp., 725 F.3d 34, 51 (1st Cir. 2013) (“[T]here is no authority for the
proposition that rights under the [Fair Labor Standards Act] merge into contractual ones
whenever the two overlap.”) (internal quotation marks omitted).
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statutory claims in a judicial forum, the federal courts will honor that waiver and bar the
plaintiffs from pursuing their claims in court. See Manning v. Boston Medical Center Corp., 725
F.3d 34, 52 (1st Cir. 2013) (“[I]n order for a CBA to subject a federal statutory claim to
arbitration, any such waiver must be clear and unmistakable on its face.”) (internal quotation
marks omitted). Such an approach strikes us as being eminently sensible, and it is our judgment
that a similar principle should be applied in the case at bar. Accordingly, under the facts
presented in the instant case, it is our holding that the right to a judicial forum for claims brought
specifically under the RICRA or the FEPA can be waived in a collective bargaining agreement
if, and only if, that waiver is clear and unmistakable. Such a holding is not inconsistent with our
holding in Cipolla, where those anti-discrimination statutes were not implicated.
The RICRA and the FEPA reflect the General Assembly’s very explicit determination
that those statutes are necessary to militate against “grave injury to public safety, health, and
welfare.” Section 28-5-2. The General Assembly has sounded neither an uncertain nor a muted
trumpet in this domain; it has clearly manifested an intent of the highest order to extirpate
discrimination in employment in view of its deleterious effect on individuals and on society more
generally. See Horn v. Southern Union Co., 927 A.2d 292, 293 (R.I. 2007) (stating that the
RICRA was enacted to provide “‘broad protection against all forms of discrimination in all
phases of employment’”) (quoting Ward v. City of Pawtucket Police Department, 639 A.2d
1379, 1381 (R.I. 1994)); Folan v. State Department of Children, Youth, and Families, 723 A.2d
287, 290 (R.I. 1999) (stating that the FEPA was enacted to “assure equal employment
opportunities for all persons by eliminating discriminatory practices”). The General Assembly
specifically and solemnly declared that the FEPA was designed to address “matter[s] of state
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concern * * * [which] foment[] domestic strife and unrest * * * and undermine[] the foundations
of a free democratic state.” Section 28-5-2; see footnote 10, supra.
The CBA at issue in this case does not contain sufficiently precise language indicative of
the required clear and unmistakable assent to waive a specific statutory right to a judicial forum
that is plaintiff’s by virtue of the RICRA and the FEPA. It is true that the CBA in the instant
case does contain a provision stating that “[n]either the Employer nor the Union shall
discriminate against or in favor of any Employee on account of race [or] color * * * .” However,
the CBA before us, unlike the one at issue in 14 Penn Plaza, does not contain any reference to
the RICRA or the FEPA. Thus, it specifically states that only disagreements regarding the
misapplication of the CBA will be grieved and arbitrated. Contrary to defendant’s arguments,
such a general arbitration provision simply is not sufficient to clearly and unmistakably waive an
employee’s rights under the RICRA or the FEPA. See Manning, 725 F.3d at 52 (stating that “a
broadly-worded arbitration clause such as one covering any dispute concerning or arising out of
the terms and/or conditions of [the CBA] * * * will not suffice; rather, something closer to
specific enumeration of the statutory claims to be arbitrated is required”) (internal quotation
marks omitted); Ibarra v. United Parcel Service, 695 F.3d 354, 359-60 (5th Cir. 2012) (pointing
out that some “courts have concluded that for a waiver of an employee’s right to a judicial forum
for statutory discrimination claims to be clear and unmistakable, the CBA must, at the very least,
identify the specific statutes the agreement purports to incorporate or include an arbitration
clause that explicitly refers to statutory claims”); see also Coleman v. Donahoe, 667 F.3d 835,
854 (7th Cir. 2012); Powell v. Anheuser-Busch, Inc., 457 F. App’x 679, 680 (9th Cir. 2011).18
18
The defendant relies on Jensen v. Calumet Carton Co., No. 11-C-2785, 2011 WL
5078875 (N.D. Ill. Oct. 25, 2011) in support of its argument that plaintiff waived her statutory
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We are keenly aware that we have repeatedly applied a presumption in favor of arbitration. See,
e.g., City of Newport v. Local 1080, International Association of Firefighters, AFL-CIO, 54
A.3d 976, 981 (R.I. 2012) (“[T]his Court resolves doubts as to the arbitrability of disputes in
favor of arbitration.”). However, in the context of claims under the RICRA or the FEPA, that
presumption “does not extend beyond the reach of the principal rationale that justifies it,” which
is that arbitrators are in a better position than courts to interpret contracts, but not necessarily
state law. Wright, 525 U.S. at 78. Based on the general language of the CBA, we perceive no
evidence of a waiver of plaintiff’s statutory right to a judicial forum, let alone a waiver which
would be characterized as clear and unmistakable.19
In conclusion, in this case, we hold that a general arbitration provision in a CBA which
contains no specific reference to the state anti-discrimination statutes at issue does not constitute
a clear and unmistakable waiver of the plaintiff’s right to a judicial forum in which to litigate
claims arising under the RICRA and the FEPA.
right to a judicial forum in the CBA. However, the decision in Jensen is not controlling, nor do
we find its reasoning to be persuasive.
19
The plaintiff also contends that the CBA at issue in the instant case does not give her the
right to pursue a claim for arbitration but instead leaves that right in the hands of the union;
plaintiff posits that, in situations like the one before us, when a union “fail[s] to act within the
[CBA] [it] acts as a bar to forcing [an] individual to adhere to the terms of the CBA.” We need
not, and therefore do not, address this argument given our holding that the language of the CBA
was not sufficient to waive plaintiff’s right to access to a judicial forum. See United States v.
Gertner, 65 F.3d 963, 973 (1st Cir. 1995) (stating that the “judicial task, properly understood,
should concentrate on those questions that must be decided in order to resolve a specific case”);
see also PDK Laboratories Inc. v. United States Drug Enforcement Administration, 362 F.3d
786, 809-10 (D.C. Cir. 2004) (Roberts, J. concurring) (stating that the case raised “‘perplexing
questions’” and consequently, “‘[t]heir difficulty admonishes [the Court] to observe the wise
limitations on [its] function and to confine [itself] to deciding only what is necessary to the
disposition of the immediate case’”) (quoting Whitehouse v. Illinois Central Railroad Co., 349
U.S. 366, 372–73 (1955)); Grady v. Narragansett Electric Co., 962 A.2d 34, 42 n.4 (R.I. 2009)
(referring to “our usual policy of not opining with respect to issues about which we need not
opine”).
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IV
Conclusion
For the reasons set forth in this opinion, we vacate the Superior Court’s order granting the
defendant’s motion to stay and ordering that the matter be resolved through binding arbitration.
This case is remanded to the Superior Court for further proceedings.
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RHODE ISLAND SUPREME COURT CLERK’S OFFICE
Clerk’s Office Order/Opinion Cover Sheet
TITLE OF CASE: Reynalda Weeks v. 735 Putnam Pike Operations, LLC d/b/a
Greenville Skilled Nursing and Rehabilitation.
CASE NO: No. 2012-356-Appeal.
(PC 11-5663)
COURT: Supreme Court
DATE OPINION FILED: Februrary 28, 2014
JUSTICES: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
WRITTEN BY: Associate Justice William P. Robinson III
SOURCE OF APPEAL: Providence County Superior Court
JUDGE FROM LOWER COURT:
Associate Justice Sarah Taft-Carter
ATTORNEYS ON APPEAL:
For Plaintiff: David S. Cass, Esq.
For Defendant: William E. O’Gara, Esq.