Employee Here Did Not Clearly And Unmistakably Waive Right To A Judicial Forum
Certain distinctions are importantly at play in Volpei v. County of Ventura, Case No. B243954 (2nd Dist. Div. 6 Nov. 7, 2013) (Gilbert, P.J., author 3:0): statutory versus contractual rights, mandatory versus voluntary arbitration, unilateral versus bilateral right to initiate arbitration, and preponderance of the evidence versus clear and unmistakable evidence.
Volpei, an investigator for the Ventura County District Attorney’s Office, sued the County for retaliation, harassment, and discrimination claims under the California Fair Employment and Housing Act. The County petitioned to compel arbitration, based on the dispute resolution provisions under the terms of a memorandum of agreement (MOA) between Volpei’s bargaining representative, the Ventura County Deput Sheriffs’ Associaiton, and the County.
The sheriff of McAlester, Oklahoma, sitting in front of the jail. He has been the sheriff for thirty years. 1936. Dorothea Lange, photographer. Library of Congress.
The trial judge concluded that Volpei was not bound to arbitrate his claims, and the Court of Appeal agreed with the trial judge.
First, it is significant that statutory, rather than merely contractual rights are at issue. California courts have not been so quick to find a waiver of the right to sue for a violation of statutory claims. Here, the MOA did “not provide for a clear and unmistakable waiver of Volpei’s right to a judicial forum for his statutory discrimination claims.”
The grievance procedure at issue provided that a grievance unresolved after the employee’s filing of an informal complaint and a three-step formal complaint process “may be submitted to arbitration by the [Ventura County Deputy Sheriffs’] Association . . . “ The Court of Appeal pointed out that the Association was not a party to the lawsuit; that the submission of a matter to arbitration was unilaterally in favor of the Association, and that the word “may” could be construed as meaning permissive rather than mandatory. Other cases that construed “may” to mean “shall”, within the context of compelling arbitration, were distinguishable, as they pertained to waiver of a judicial forum where non-statutory rights were involved.
Here, however, the Court refused to find a “clear and unmistakable” waiver by Volpei of his right to a judicial forum: “The provision may have required arbitration of contractual claims, and may have permitted Volpei to voluntarily arbitrate his statutory claims, but it did not unambiguously require arbitration as the sole and exclusive remedy for his statutory discrimination claim.”