Argued: March 9, 2017
from the United States District Court for the Western
District of Kentucky at Louisville. No. 3:13-cv-00425-Thomas
B. Russell, District Judge.
Dutkanych III, BIESECKER, DUTKANYCH & MACER, LLC,
Louisville, Kentucky, for Appellant.
Tyson Gorman, WYATT, TARRANT & COMBS, LLP, Louisville,
Kentucky, for Appellee Board of Education. Benjamin S. Basil,
PRIDDY, CUTLER, NAAKE & MEADE, PLLC, Louisville,
Kentucky, for Appellee Teachers Association. Gail S. Coleman,
UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Washington, D.C., for Amicus Curiae.
Dutkanych III, Krista A. Willike, BIESECKER, DUTKANYCH &
MACER, LLC, Louisville, Kentucky, for Appellant.
Tyson Gorman, Amanda Warford Edge, WYATT, TARRANT &
COMBS, LLP, Louisville, Kentucky, for Appellee Board of
Education. Benjamin S. Basil, Don Meade, PRIDDY, CUTLER,
NAAKE & MEADE, PLLC, Louisville, Kentucky, for Appellee
Teachers Association. Gail S. Coleman, UNITED STATES EQUAL
EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C., for
Before: DAUGHTREY, MOORE, and GIBBONS, Circuit Judges.
NELSON MOORE, CIRCUIT JUDGE.
issue in this employment-discrimination case is a collective
bargaining agreement ("CBA") negotiated and signed
by Defendants-Appellees Jefferson County Board of Education
("JCBE") and Jefferson County Teachers Association
("JCTA"). Under the CBA, if an employee believed
that they were discriminated against, that employee could
file a grievance with JCBE. However, if the employee
subsequently filed a charge with the Equal Employment
Opportunity Commission ("EEOC"), the CBA required
that the grievance proceedings be held in abeyance. Such was
the case here. Watford filed a grievance on the day she was
terminated-October 13, 2010-and those proceedings are still
in abeyance. Frustrated that her grievance proceedings were
held in abeyance simply because she filed an EEOC charge,
Watford brought this case, alleging that JCBE and JCTA
retaliated against her for filing an EEOC charge. The
district court awarded summary judgment against Watford, an
award that is inconsistent with this court's admonition
that "an adverse action against [an] employee because
the employee had pursued the statutorily protected activity
of filing a charge with the EEOC" is "clearly"
retaliation. See EEOC v. SunDance Rehabilitation
Corp., 466 F.3d 490, 498 (6th Cir. 2006). Because of
this inconsistency, and because the CBA is retaliatory on its
face, we REVERSE the district court's
judgment and REMAND for further proceedings
consistent with this opinion.
eleven-year teaching career with Jefferson County Public
Schools ("JCPS") came to an end when JCPS
terminated her on October 13, 2010. R. 40-4 (Termination
Letter at 4) (Page ID #883). In Watford's termination
letter, the JCPS superintendent claimed that her final two
years were marked by "insubordination and conduct
unbecoming a teacher." Id. Believing that her
termination was instead due to discrimination on the basis of
race, sex, and age, Watford filed a grievance with
Defendant-Appellee Jefferson County Board of Education
("JCBE") on the very day she was terminated. R.
44-7 (Watford Grievance No. T11-017-09-06) (Page ID #1171).
So began Watford's case.
The Collective Bargaining Agreement
heart of this dispute is the CBA between JCBE and JCTA. The
CBA, which stipulates to teachers' rights-from academic
freedom to school safety-contains grievance procedures in the
event "that there has been a violation,
misinterpretation or improper application of one or more
specific provisions of this Agreement or any complaint
alleging improper, arbitrary, or discriminatory
conduct." R. 36-4 (CBA art. 29, § A.1) (Page ID
#400). Grievances begin with informing the teacher's
"immediate supervisor or the appropriate
administrator" and may be appealed up the hierarchy to
the superintendent. See id. art. 29, § D (Page
ID #402). If the teacher is still unsatisfied with the
superintendent's decision, the JCTA may submit the
grievance to arbitration. Id. (Page ID #403).
Throughout, the grievance process is intended to proceed
"as rapidly as possible, " with time limits set at
each stage (which, naturally, may "be extended by mutual
agreement"). See id. (Page ID #401-04).
also places limits on potential grievants' choice of
remedies. Kentucky has a dispute resolution process for
teachers called an "administrative hearing tribunal,
" see Ky. Rev. Stat. Ann. § 161.790 (West
2006), and teachers covered by the CBA must select either the
tribunal process or the grievance process; they cannot pursue
both. See R. 36-4 (CBA art. 9, § D) (Page ID
#326). In addition, and centrally to this case, "[i]f
the employee opts to pursue a complaint using another agency,
the parties agree to hold the grievance in abeyance until the
agency complaint is resolved." See id. Finally,
the CBA stipulates that "[t]he Association and the
aggrieved party will be required to exhaust this Grievance
Procedure including arbitration before seeking alternative
remedies, provided that by doing so they will not be deemed
to have waived or otherwise prejudiced any constitutional,
statutory, or other legal rights that they may have."
Id. art. 29, § I.3 (Page ID #405).
Watford's Discrimination and Retaliation
alluded to earlier, Watford has thoroughly availed herself of
grievance procedures and EEOC charges. After the JCPS
superintendent dismissed Watford's aforementioned
grievance, see R. 44-7 (Superintendent Decision
Grievance No. T-11-017-09-06) (Page ID #1172), Watford sought
to have the grievance arbitrated along with six other
grievances she had filed before she was terminated. R. 36-5
(Feb. 11, 2011 E-mail from Bethel to Partee) (Page ID
#428-29). Although the parties tentatively scheduled an
arbitration to begin in July 2011, id., an EEOC
charge that Watford filed against JCPS on February 24,
2011, R. 34-3 (Charge No. 474-2011-00452) (Page ID #151),
caused the arbitration to be held in abeyance. R. 37-7 (Feb.
25, 2011 Letter from Meredith to Flaherty) (Page ID #610).
that the arbitration would not proceed as scheduled, Watford
filed another EEOC charge, this time alleging that the
arbitration was held in abeyance in retaliation for filing an
EEOC charge. R. 37-8 (Charge No. 24J-2011-00066) (Page ID
#612). A little over one year later, the EEOC issued a
determination that there was "reasonable cause to
believe that the [JCPS] held [Watford's] grievance
proceedings in abeyance in retaliation for her filing a
charge of discrimination with the [EEOC]." R. 34-6
(Determination for Charge No. 24J-2011-00066) (Page ID
#207-08). After receiving this determination, Watford filed a
related EEOC charge against JCTA, stating that she
"requested that JCPS grant [her] the right to pursue
arbitration of [her] grievances ...