Employer's racially discriminatory policy or practice of denying correct compensation to employee is not cured by fact that employee successfully pursued a remedy under union grievance procedure

In a case which issued on July 6, 2004, the Ninth Circuit Court of Appeals has clarified earlier precedent from that circuit concerning the issue of whether an employee's successful use of a union grievance procedure to resolve claims of alleged discriminatory pay practices bars a lawsuit for the same discriminatory acts. The case is Fonseca v. Sysco Food Services of Arizona, Inc.

The plaintiff, who was covered by a union contract, maintained that he was discriminated against by his supervisor on the basis of his race (Hispanic) and ethnicity (Guatemalan). Among other things, he alleged that he was denied and passed over for opportunities to work overtime and that his overtime shifts were being given to white workers with lesser seniority. He filed grievances with his union over several of these incidents, and was successful each time in obtaining compensation for the missed overtime work. Relying on a prior Ninth Circuit case, Brooks v. City of San Mateo, which issued in 2000, the employer argued that giving Fonseca's overtime shifts to less senior white workers was not an "adverse employment action" such as to give rise to a discrimination claim because his complaints were corrected when grievances were brought to management's attention.

The court did not agree. While Brooks noted that a successful grievance could change the adverse nature of an employment action, such as where an employer is responsive to an employee complaint that he or she was assigned to less favorable shifts and vacation days, the court viewed Fonseca's situation differently because, unlike Brooks, Fonseca was repeatedly forced to file grievances to remedy disparate treatment by his supervisor, and was often deterred from pursuing grievances over these incidents.

Persons wishing further information or who have questions or comments about either this case or any of the cases that have appeared on this website can contact any of the attorneys at Epstein, Turner & Song.