Sypriss Smith v. All Nations Church of God

Former employee sued her former employer for retaliatory discharge under the Tennessee Public Protection Act, disability discrimination, and religious discrimination. Former employee voluntarily dismissed the religious discrimination claim prior to trial the jury returned a verdict in favor of the former employee on only the retaliatory discharge claim, awarding total damages of $15,500.00, inclusive of punitive damages. Former employee then sought an award of over $100,000.00 in attorney's fees under the applicable statutes, which the trial court reduced to $12,500.00, the same amount of punitive damages awarded by the jury. Former employee appeals only the attorney's fee award. We vacate the judgment of the trial court and remand for further proceedings.

<bold>1. Pleadings — 12(b)(6) motion to dismiss — consideration of documents</bold> <bold>not attached to complaint — motion not converted to summary judgment</bold> <block_quote> A motion to dismiss for failure to state a claim was not converted into a motion for summary judgment where the court considered documents not attached to the complaint. Those documents were referred to in the complaint and formed the procedural basis for the complaint.</block_quote><page_number>Page 253</page_number> <bold>2. Employer and Employee — retaliatory discharge — time limit for claim</bold> <block_quote> The 180-day time limit for filing a Retaliatory Employment Discrimination Act claim with the North Carolina Department of Labor is mandatory even though there is no express statutory consequence for failing to file within the time limit.</block_quote> <bold>3. Statutes of Limitations and Repose — retaliatory discharge —</bold> <bold>time limits for filing</bold> <block_quote> There is no merit in the argument that the 3-year limitations period of N.C.G.S. § <cross_reference>1-52</cross_reference> should control the 180-day filing limit of the Retaliatory Employment Discrimination Act.</block_quote> <bold>4. Employer and Employee — retaliatory discharge — motion to amend —</bold> <bold>additional claim — responsive pleading not filed — futile motion</bold> <block_quote> The trial court properly denied plaintiff's motion to amend his complaint to assert an additional claim under the Retaliatory Employment Discrimination Act based on an alleged post-complaint incident of discrimination where the original claim was time-barred and plaintiff failed to file his additional claim with the N.C. Department of Labor before seeking to add it to his complaint so that allowance of the amendment would have been futile.</block_quote> <bold>5. Employer and Employee; Workers' Compensation — wrongful discharge —</bold> <bold>assertion of workers' compensation rights — amen

ARSLANIAN v OAKWOOD UNITED HOSPITALS, INC (ON REMAND) Docket No. 189349. Submitted January 3, 2000, at Detroit. Decided April 21, 2000, at 9:00 A.M. Michael Arslanian brought an action in the Wayne Circuit Court against Oakwood United Hospitals, Inc., and others, alleging defamation, intentional infliction of emotional distress, interference with contract, and retaliatory discharge and gender discrimination under the Civil Rights Act, MCL 37.2101 et seq.\ MSA 3.548(101) et seq., in connection with his discharge from employment. The court, Diane M. Hathaway, J., granted summary disposition for the defendants, holding that the claims were barred by res judicata or collateral estoppel arising from arbitration of a grievance pursuant to a collective bargaining agreement. The Court of Appeals, Murphy, P.J., and Michael J. Kelly and Gribbs, JJ., in an unpublished opinion per curiam, issued October 3, 1997 (Docket No. 189349), affirmed in part, reversed in part, and remanded, holding that the arbitration proceeding barred the claims that were not based on the Civil Rights Act, but did not bar the civil rights claims of retaliatory discharge and gender discrimination. The defendants sought leave to appeal to the Supreme Court, which, in lieu of granting leave to appeal, remanded the matter to the Court of Appeals for reconsideration in light of Rembert v Ryan’s Family Steak, Houses, Inc, 235 Mich App 118 (1999). 461 Mich 921 (1999). On remand, the Court of Appeals held: 1. Rembert, in which the Court of Appeals held that a predispute individual employment agreement to arbitrate statutory claims (including those based on the Civil Rights Act) is not against public policy and is enforceable, does not apply to this case where the agreement to arbitrate was part of a collective bargaining agreement, not an individual employment contract. Arbitration of civil rights claims, if mandated by a collective bargaining agreement, is inappropriate because of union control of the arbitration process and because the interests of an individual in enforcing statutory rights may be subordinated to the perceived greater interest of the bargaining unit. 2. The arbitration clause of the collective bargaining agreement in this case is not enforceable with respect to civil rights claims because the agreement lacks clear notice to employees that they would be waiving the right to adjudicate civil rights claims in a judicial forum. Such notice is a requirement of a fair arbitral process. Affirmed in part, reversed in part, and remanded. Civil Rights — Collective Bargaining Agreements — Arbitration. An employee’s right to judicial determination of a civil rights claim against an employer is not curtailed by any provision in a collective bargaining agreement mandating arbitration of statutory claims (MCL 37.2101 et seq.; MSA 3.548(101] et seq.). Allen J. Counard, P.C. (by Charles A. Butler), for the plaintiff. Dykema Gossett PLLC (by Debra M. McCulloch and Jennifer J. Howe), for the defendants. ON REMAND Before: Murphy, P.J., and Kelly and Gribbs, JJ. Murphy, RJ. In an earlier, unpublished opinion in this case, Arslanian v Oakwood United Hosps, Inc, issued October 3, 1997 (Docket No. 189349), we held that a previous arbitration proceeding, held pursuant to a collective bargaining agreement, barred plaintiff Michael Arslanian’s subsequently filed claims of defamation, intentional infliction of emotional distress, and interference with contract. However, pursuant to Rushton v Meijer, Inc (On Remand), 225 Mich App 156; 570 NW2d 271 (1997), which held that the public policy of this state entitles a plaintiff to direct and immediate review of civil rights claims in the circuit court, we further held that the previous arbitration proceeding did not bar plaintiffs additional claims of retaliatory discharge and gender discrimination under the Civil Rights Act (CRA), MCL 37.2101 et seq.) MSA 3.548(101) et seq. Defendants sought leave to appeal this ruling, and our Supreme Court, in lieu of granting leave, remanded the matter for our reconsideration in light of Rembert v Ryan’s Family Steak Houses, Inc, 235 Mich App 118; 596 NW2d 208 (1999), a decision of a special panel of this Court, which in pertinent part abrogated Rushton. 461 Mich 921 (1999). On reconsideration, we affirm our previous holdings. Plaintiff worked for defendant Oakwood United Hospitals until an alleged assault on defendant Karoline McKinzie resulted in his discharge. Pursuant to the collective bargaining agreement, plaintiff filed a grievance and an arbitration hearing was held. The arbitrator denied plaintiffs grievance, finding that McKinzie’s account of the assault was truthful and that plaintiff was legitimately discharged on the basis of that assault and his prior disciplinary record. Defendants filed a motion for summary disposition in response to plaintiffs subsequently initiated circuit court action, arguing that, as a result of the arbitration proceedings, plaintiffs claims were either barred by res judicata because they were or could have been brought in the arbitration proceedings or were essentially barred by collateral estoppel because the dis-positive facts had been determined by the arbitrator. The circuit court granted defendants’ motion and, as indicated above, on plaintiff’s appeal as of right we affirmed in part and reversed in part. We are now faced with the question whether Rembert compels a conclusion contrary to our previous decision allowing plaintiff to proceed with his CRA-based discrimination and retaliatory discharge claims. We find that it does not. In Rembert, the special panel of this Court interpreted an individual employment agreement and held that predispute agreements to arbitrate statutory claims, including CRA-based claims, are not against public policy and can be enforceable. The special panel indicated that such an agreement would be valid if (1) the parties have agreed to arbitrate the claims (there must be a valid, binding, contract covering the civil rights claims), (2) the statute itself does not prohibit such agreements, and (3) the arbitration agreement does not waive the substantive rights and remedies of the statute and the arbitration procedures are fair so that the employee may effectively vindicate his statutory rights. [Id. at 156.] Ultimately, the matter was remanded to the trial court for a determination whether the plaintiffs agreement was enforceable in light of those requirements. Id. at 166. Notwithstanding this explicit abrogation of Rush-ton, which also involved an individual employment contract, a like result is not compelled in this case because here we are concerned with an arbitration clause contained in a collective bargaining agreement. In reaching its result, the special panel in Rembert analyzed the tension between two Supreme Court cases dealing with arbitration in the context of employment discrimination claims, Alexander v Gardner-Denver Co, 415 US 36; 94 S Ct 1011; 39 L Ed 2d 147 (1974), and Gilmer v Inter state/Johnson Lane Corp, 500 US 20; 111 S Ct 1647; 114 L Ed 2d 26 (1991). In Alexander, as in the instant case, a union employee exercised the compulsory arbitration provision contained in a collective bargaining agreement. The Supreme Court held that the exercise of this provision did not preclude the employee from subsequently pursuing a title VII claim in court. Resting its decision in part on the then common view that with respect to statutory rights arbitration was inferior to traditional litigation, the Court concluded that the employee could vindicate contractual rights against discrimination at arbitration and could enforce independent statutory rights through litigation. Alexander, swpra at 50-52. Almost two decades later, the Supreme Court’s attitude toward arbitration was decidedly different. In Gilmer, the Court held enforceable an agreement to arbitrate statutory claims contained in an individual employment contract. Carefully distinguishing Alexander, the Court reasoned that the factors that in that case had militated against arbitration of civil rights claims were not applicable to a case that arose under the Federal Arbitration Act (faa), 9 USC 1 et seq., and in which an individual employment contract was at issue. Gilmer, supra at 34-35. The Court noted “several important distinctions” between the cases: First, those cases did not involve the issue of the enforceability of an agreement to arbitrate statutory claims. Rather, they involved the quite different issue whether arbitration of contract-based claims precluded subsequent judicial resolution of statutory claims. Since the employees there 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. Second, because the arbitration in those cases occurred in the context of a collective-bargaining agreement, the claimants there were represented by their unions in the arbitration proceedings. An important concern therefore was the tension between collective representation and individual statutory rights, a concern not applicable to the present case. Finally, those cases were not decided under the faa, which, as discussed above, reflects a “liberal federal policy favoring arbitration agreements.” [Id. at 35, quoting Mitsubishi Motors Corp v Soler Chrysler-Plymouth, Inc, 473 US 614, 625; 105 S Ct 3346; 87 L Ed 2d 444 (1985).] In reaching the decision that public policy supports enforcing valid arbitration clauses, the special pauel of this Court noted that the “critical distinction” between its case and Alexander was the one made salient by Gilmer, the difference between arbitration agreements arising in the context of a collective bargaining agreement and those arising out of individual employment contracts. Rembert, supra at 143. It is that same distinction that compels a contrary conclusion in the instant case. The special panel followed its analysis of Gilmer by discussing the progeny of that case, stating, “[s]ince the Court’s landmark decision in Gilmer, the vast majority of federal and state courts that have addressed this issue have followed Gilmer and held that statutory employment discrimination claims are subject to predispute compulsory arbitration by way of employment contracts.” Rembert, supra at 148. The special panel noted, however, that in the context of arbitration clauses found in collective bargaining agreements, a question still exists regarding “whether and to what extent [Alexander\ remains viable authority.” Id. at 151, n 24. Referencing a few of the cases in which parties have raised this issue, the special panel concluded, “[o]ur decision does not turn on the outcome of this controversy, and we express no opinion concerning the proper application of Gilmer to general arbitration clauses in collective bargaining agreements.” Id. at 152, n 24 (emphasis added). Accordingly, Rembert does not control the outcome of this case. Instead, we turn to those cases so addressing the question of the continuing viability of Alexander. Though to some degree a split of opinion exists among jurisdictions addressing this question, a clear majority of courts have found that Alexander remains an effective bar to compulsory arbitration of civil rights claims in the collective bargaining context. The minority view is represented by the Fourth Circuit Court of Appeals decision in Austin v Owens-Brockway Glass Container, Inc, 78 F3d 875 (CA 4, 1996). In that case, the court held that a binding arbitration clause in a collective bargaining agreement barred an employee from pursuing in a judicial forum claims brought under title VII and the Americans with Disabilities Act. Id. at 885-886. The court thus extended Gilmer, noting the difference presented by the fact that a collective bargaining agreement was at issue, but deeming this difference irrelevant. Id. at 885. A strong dissent was authored by Judge Hall, who stated that “[t]he majority fails to recognize, however, that the only difference makes all the difference.” Id. at 886. Judge Hall noted that the Supreme Court itself had made clear that Alexander was not overruled by Gilmer, and indicated that several federal courts recognized that the former decision still governs in the collective bargaining context. Id. at 887. Those courts finding to the contrary of Austin, some explicitly rejecting its reasoning, are numerous. See, e.g., Penny v United Parcel Service, 128 F3d 408, 414 (CA 6, 1997) (concluding that “an employee whose only obligation to arbitrate is contained in a collective bargaining agreement retains the right to obtain a judicial determination of his rights under a statute such as the ada”); Brisentine v Stone & Webster Engineering Corp, 117 F3d 519, 526 (CA 11, 1997) (explicitly rejecting the “result and reasoning of the Fourth Circuit” in Austin, and finding Judge Hall’s dissent more persuasive); Harrison v Eddy Potash, Inc, 112 F3d 1437, 1453 (CA 10, 1997) (adopting “the majority view . . . that Alexander and its progeny remain good law and that statutory employment claims are independent of a collective bargaining agreement’s grievance and arbitration procedures”) (citations and internal quotations omitted); Pryner v Tractor Supply Co, 109 F3d 354, 363 (CA 7, 1997) (applying Alexander and holding that “the union cannot consent for the employee by signing a collective bargaining agreement that consigns the enforcement of statutory rights to the union-controlled grievance and arbitration machinery created by the agreement” [emphasis in original]); Varner v Nat’l Super Markets, Inc, 94 F3d 1209 (CA 8, 1996); Tran v Tran, 54 F3d 115 (CA 2, 1995); Krahel v Owens-Brockway Glass Container, Inc, 971 F Supp 440 (D Or, 1997); Jackson v Quanex Corp, 889 F Supp 1007 (ED Mich, 1995). We agree with this vast majority of courts and hold that Alexander still controls in the circumstances herein presented. The concerns implicated by union-negotiated predispute agreements to arbitrate center on one key issue: the tension presented by the spectre of collective representation being the only method of enforcement of distinctly individual rights. See Gilmer, supra at 35. A thorough analysis of the potential problems associated with collective representation in the enforcement of individual rights is found in Pryner, supra at 360-363. There, Chief Judge Posner ultimately posits: The essential conflict is between majority and minority-rights. The collective bargaining agreement is the symbol and reality of a majoritarian conception of workers’ rights. An agreement negotiated by the union elected by a majority of the workers in the bargaining unit binds all the members of the unit, whether they are part of the majority or for that matter even members of the union entitled to vote for union leaders — they need not be. The statutory rights at issue in these two cases are rights given to members of minority groups because of concern about the mistreatment (of which there is a long history in the labor movement, see, e.g., Steele v Louisville & Nashville RR, 323 US 192; 65 S Ct 226; 89 L Ed 173 (1944)) of minorities by majorities. We may assume that the union will not engage in actionable discrimination against minority workers. But we may not assume that it will be highly sensitive to their special interests, which are the interests protected by Title VII and the other discrimination statutes, and will seek to vindicate those interests with maximum vigor. The employers’ position delivers the enforcement of the rights of these minorities into the hands of the majority, and we do not think that this result is consistent with the policy of these statutes or justified by the abstract desirability of allowing unions and employers to cut their own deals. And we are given no reason to believe that the ability of unionized workers to enforce their statutory rights outside of the grievance machinery established by collective bargaining agreements is undermining labor relations. [Id. at 362-363.] We agree with Chief Judge Posner’s excellent summary of the potentially conflict-laden relationship that would exist were the presently minority view of the Fourth Circuit Court of Appeals in Austin to become the majority rule. In Heurtebise v Reliable Business Computers, Inc, 452 Mich 405; 550 NW2d 243 (1996), Justice Cavanagh’s plurality opinion discussed competing public policies that, with respect to the adjudication of civil rights claims, on the one hand favor the enforcement of agreements to arbitrate such claims, but on the other support the historical right to their determination in a judicial forum. Justice Cavanagh wrote: [T]he judicial remedies provision in Const 1963, art 5, § 29, along with the tone of the debates that produced that provision, reveal that an aggrieved individual’s access to judicial remedies is inseparably interwoven with the substantive civil rights and was intended by the people of Michigan to be the lifeblood of keeping those substantive civil rights alive. When the civil liberty at stake is equal opportunity in the pursuit of employment, I believe that the Michigan Constitution prevents us from granting the defendant’s request to surgically sever the constitutional right to a judicial forum, hi short, I would find that an aggrieved individual’s access to a judicial forum to remedy violations of his nonnegotiable, constitutionally guaranteed, and legislatively articulated civil rights, is also a nonnegotiable state right. Accordingly, I would find that the people of Michigan and the Legislature intended to preclude prospective waivers of judicial remedies. [Heurtebise, supra at 435-436.] Though the recent special panel decision includes a passage rendering the force of this reasoning negligible in the context of individual employment contracts, Rembert, supra at 131, because of the potential conflicts just alluded to, Justice Cavanagh’s words still resonate in the context of collective bargaining agreements. In accord with the vast majority of jurisdictions, we conclude that because the union asserts control in the labor arbitration process and because the interests of the individual in enforcing statutory rights may be subordinated to the perceived greater interest of the bargaining unit, mandatory labor arbitration of civil rights claims is inappropriate. See Jackson, supra at 1011 (citing Alexander, supra at 58, n 19). Moreover, as we indicated in our previous decision, the application of collateral estoppel and res judicata to plaintiffs civil rights claims would effectively contravene this conclusion. Accordingly, we hold that the trial court erred in granting summary disposition of plaintiff’s statutory discrimination and retaliatory discharge claims. Were the distinctions between an agreement pursuant to a collective bargaining agreement and one included in an individual employment contract not reason enough to support our holding in this case, we note that we would otherwise rule that plaintiff can still pursue his statutory claims because the instant agreement clearly fails to satisfy one particular factor needed to meet the requirement of a fair arbitral process. Among other things, the arbitration proceedings must include clear notice to the employee that he is waiving the right to adjudicate discrimination claims in a judicial forum. Rembert, supra at 161. It was a deficiency in this regard, the lack of a “clear and unmistakable waiver,” that led the Supreme Court in Wright v Universal Maritime Service Corp, 525 US 70; 119 S Ct 391; 142 L Ed 2d 361 (1998), to recently decline to reach the question whether a waiver provision contained in a collective bargaining agreement should be enforceable. Id. at 77, 82. There, the Court found that the union-negotiated arbitration clause at issue was “very general, providing for arb

The plaintiff appealed from the trial court's judgment granting the defen- dants' motions to dismiss her retaliatory discharge action, which alleged a violation of the whistleblower statute (§ 31-51m). The plaintiff, while employed at a pizza restaurant owned by the defendant S Co. and managed by the defendant L, submitted a complaint to the local health district reporting unsanitary conditions at the restaurant. The day after a health inspector visited the restaurant and disclosed that the plaintiff had made the complaint, the defendants terminated her employment. The plaintiff claimed that the trial court erred in determining that it lacked subject matter jurisdiction on the ground that she had failed to exhaust administrative remedies available through the Department of Labor, as required by § 31-51m (c). Held: The trial court improperly granted the defendants' motions to dismiss the plaintiff's retaliatory discharge action on the ground that it lacked subject matter jurisdiction, as the plaintiff's action focused on her employer's con- duct in terminating her employment following her complaint to the health district, the substance of which related to public health, not occupational safety or health. Argued September 9—officially released December 16, 2025