Drew Capuder’s Employment Law Blog

10-13-09: The West Virginia Supreme Court addressed the enforceability of employment arbitration agreements in State ex rel. Clites v. Clawges, — S.E.2d –, 2009 W.L. 3320488 (2009) (opinion at Findlaw’s web site). This Clites decision is discussed in my chart of West Virginia Supreme Court decisions.

Clites Goes To Work For TeleTech And Signs An Arbitration Agreement

The plaintiff, Jill Clites, went to work for TeleTech in October 2004 as a Customer Service Representative. During new employee orientation, Clites met with a human resources representative for about 90 to 120 minutes, during which time Clites reviewed and signed a large number of documents related to the orientation. In the record before the West Virginia Supreme Court, there were disputes over whether individual documents were discussed with Clites and whether she was required to sing all the documents during the orientation session, but it appears that during that session Clites signed an arbitration agreement which TeleTech required of most or all new employees.

Clites remained employed at TeleTech until July 12, 2007, when she was terminated. She then filed suit for sexual harassment and retaliation. Clites alleged she complained about the sexual harassment, that TeleTech failed to take appropriate corrective action, and that TeleTech retaliated against her for the complaint by firing her.

Clites Files Suit In West Virginia Circuit Court

Clites filed suit in West Virginia Circuit Court in Morgantown. TeleTech then invoked the arbitration agreement by filing a motion to dismiss the lawsuit and by filing a separate lawsuit in federal court arguing that Clites waived her rights to a jury trial  by signing the arbitration agreement. In essence, TeleTech argued that Clites gave up her right to file suit and obtained a jury trail by signing the arbitration agreement, and that her only remedy was to file an arbitration proceeding (with the American Arbitration Association) pursuant to the arbitration agreement.

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4/1/09: The US Supreme Court ruled that “pre-dispute arbitration agreements” in collective bargaining agreements (union contracts) are enforceable, in Penn Plaza PLLC v. Pyett, 129 S. Ct. 1456 (2009) (5-4 decision).

This was an age discrimination case under the Age Discrimination in Employment Act, (ADEA). The plaintiff was a member of a union, and the collective bargaining agreement (union contract) required submitting age discrimination claims to binding arbitration.

The US Supreme Court had previously ruled, but not in a labor union setting, that arbitration agreements for ADEA claims were enforceable under the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26-33 (1991)). So the real issue in Penn Plaza was whether there would be a different result because of the union contract setting and the National Labor Relations Act.

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October 25, 2007: In Colgan Air, Inc. v. West Virginia Human Rights Commission, 221 W. Va. 588, 656 S.E.2d 33 (1977) the West Virginia Supreme Court addressed claims of harassment (based on religion and national origin) and retaliation under the WV Human Rights Act, W. Va. Code § 5-11-1 et seq.

The plaintiff was a pilot, Rao Zahid Khan, who alleged that his co-workers subjected him to frequent derogatory and insulting comments about his national origina and religeon (he was Arabic). The West Virginia Supreme Court ruled that Colgan Air (a) was not liable for harassment because it had policies and procedures prohibiting harassment and took swift and decisive action after learning about the harassment, and (b) was not liable for retaliation because Colgan Air terminated the employee (Mr. Khan) for a legitimate and non-discriminatory reason–he failed to pass a mandatory FAA proficiency test for pilots.

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May 29, 2007: In Ledbetter v. Goodyear Tire & Rubber Company, 550 U.S. 618, 128 S. Ct. 2162 (2007) (FindLaw site opinion), the United States Supreme Court, in a 5-4 decision, issued an important decision in a sex discrimination case under Title VII of the Civil Rights Act of 1964, which substantially limited the time period available to assert a claim for pay discrimination.

Ledbetter’s Claims of Sex Discrimination and Lower Pay, and the Trial Result

Ledbetter filed a charge of sex discrimination with the EEOC in 1998 and then later in the year retired. She claimed that, years earlier in her career at Goodyear, male supervisors gave her bad performance reviews compared to what men received. She claimed that Goodyear awarded raises based on those performance reviews, so that her pay raises were reduced as a result of the discriminatory performance reviews.

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