Employee Not Required to Arbitrate FEHA Claims Where Language of Arbitration Agreement Is Permissive

While contractual claims arising from a collective bargaining agreement including an agreement to arbitrate are generally presumed arbitrable, the same presumption does not apply to statutory claims.  Where an employee covered by such a collective bargaining agreement seeks to litigate his or her statutory claims in court rather than in arbitration, a California court will not compel arbitration unless the union “clearly and unmistakably” waived his or her right to a judicial forum.  Recently, the California Court of Appeal for the Second Appellate District held that a provision of an agreement stating that an unresolved grievance “may be submitted to arbitration by the Association” did not constitute a clear and unmistakable agreement to arbitrate a former employee’s statutory claims. 


The plaintiff was a former investigator for the Ventura County District Attorney’s Office (“County”).  In 2011, the plaintiff filed suit against the County asserting several statutory claims arising under California’s Fair Employment and Housing Act, including claims for retaliation, harassment, and disability discrimination.

Plaintiff’s employment with the County was covered by a Memorandum of Agreement (“MOA”) between the County and the Ventura County Deputy Sheriff’s Association (“Association”).  The MOA contained a grievance procedure applicable to “complaint[s] of illegal discrimination because of the charging party’s . . . sex, [or] physical disability . . . .”  The grievance procedure provided that any grievance not resolved in the initial steps of the grievance process “may be submitted to arbitration by the Association by submitting a letter requesting the grievance be submitted to arbitration . . .”   It also provided that the decision of the arbitrator “shall be final and binding upon the County, [the Association] and the employee affected, subject to judicial review.”

Following months of written discovery and a motion for summary judgment regarding plaintiff’s claims, the County filed a petition to compel arbitration pursuant to the grievance procedure.   The trial court denied the County’s petition, asserting that the arbitration provision was “unilateral and permissive” because it referenced the Association only, not the individual employee, and it used the word “may.”  On this basis, the trial court concluded that the Association did not clearly and unmistakably waive plaintiff’s right to a judicial forum for his statutory claims.


The Court of Appeal for the Second District of California affirmed the ruling of the trial court.  It concluded that “the provision that an unresolved grievance ‘may be submitted to arbitration by the Association’ is not a clear and unmistakable agreement to arbitrate …”  In arriving at this conclusion, the court contrasted the case before it with the case before the U.S. Supreme Court in 14 Penn Plaza v. Pyett (2009) 556 U.S. 247.  The agreement in 14 Penn Plaza, the court noted, provided that “claims made pursuant to Title VII of the Civil Rights Act [and] the Americans with Disabilities Act . . . shall be subject to the grievance and arbitration procedure . . . as the sole and exclusive remedy for violations.”    Unlike the agreement in 14 Penn Plaza, the agreement in the case before the court did not specifically define a grievance to include “FEHA or any other statute” nor did it “expressly cover[] both statutory and contractual discrimination claims.”  It also did not make the arbitration procedure the “sole and exclusive remedy” for a statutory violation, because it used the word “may.”

The court rejected the County’s argument that the word “may” had been construed “in two other cases to make arbitration mandatory,” noting that neither of those cases involved an employee’s statutory claims.  (See Ruiz v. Sysco Food Services (2004) 122 Cal.App.4th 520; International Assn. of Bridge etc. Workers v. Superior Court (1978) 80 Cal.App.3d 346.)  The court also noted the word “may” to be “particularly susceptible of a permissive meaning . . .  where ‘shall’ is used elsewhere in the same provision.”  “[T]o waive an employee’s right to a judicial forum for statutory claims,” the court stated, “[m]ore is required.” The provision must “unambiguously require arbitration as the sole and exclusive remedy” for a statutory claim.


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David W. Tyra, Laura Izon Powell, Kristianne T. Seargeant or Corrie Erickson  |  916.321.4500