Individualized Shirts argues that Gardner-Denver is inapplicable because, unlike in that case, Nieves failed to utilize the grievance process at all. Gardner-Denver only addressed whether after an unfavorable arbitration, a plaintiff's statutory claims should be precluded, not whether her failure to even bring a grievance should bar her from the courtroom. However, Gardner-Denver did not find the plaintiff's initial resort to the mandatory grievance and arbitration procedures significant. Nor have other courts. See Randolph, 879 F. Supp. at 520 (plaintiff advised supervisors of harassment but made no formal grievance); McGinnis, 1995 U.S. Dist. LEXIS 18909, 1995 WL 756590 at *2 n.1 (plaintiff did not file grievance nor go to arbitration but went directly to the EEOC); Claps, 819 F. Supp. at 143 (plaintiff wrote complaining letters but did not utilize grievance and arbitration procedures). Gardner-Denver's unmistakable import is that the existence of a mandatory grievance process will not prevent bringing separate, statutory claims in court.
Nieves' claims are purely based on her statutory rights and do not involve the contractual provisions in the CBA. Therefore, her failure to exhaust administrative remedies does not prevent her from asserting her ADA claims in this Court.
B. Whether Nieves' NJLAD Claim Is Preempted By Section 301 Of The LMRA.
State law suits which allege violations of collective bargaining agreements are preempted by § 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185. Teamsters v. Lucas Flour Co., 369 U.S. 95, 103-04, 7 L. Ed. 2d 593, 82 S. Ct. 571 (1962). Moreover, when state claims require interpretation of a collective bargaining agreement to determine the content and scope of the agreement, and what legal consequences were intended to flow from a breach of an agreement, § 301 completely preempts such claims. Id.; see Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220, 85 L. Ed. 2d 206, 105 S. Ct. 1904 (1985). However, "not every dispute concerning employment, or tangentially involving a provision of a collective-bargaining agreement, is preempted by § 301 or other provisions of the federal labor law." Id. at 211.
Individualized Shirts argues that Nieves' disability discrimination claims are inextricably intertwined with the provisions of the collective bargaining agreement and are thus preempted by § 301. Compare Kube v. New Penn Motor Express, Inc., 865 F. Supp. 221 (D.N.J. 1994) (no preemption of NJLAD disability discrimination claim because elements of claim did not require interpretation of CBA provisions); DiPuccio v. United Parcel Serv., 890 F. Supp. 688, 690 (N.D. Ohio 1995) (rejecting preemption argument because elements of handicap discrimination claim did not require consideration of the collective bargaining agreement) with Maher v. New Jersey Transit R.O., Inc., 125 N.J. 455, 480, 593 A.2d 750 (1991) (finding preemption of NJLAD disability discrimination claim where adjudication of the claim requires interpretation of the collective bargaining agreement.) The defendants urge us to find that the facts of this case are closer to Maher than to DiPuccio or Kube.
In review, the CBA here makes no reference to accommodation for disabled employees, nor does it cover working conditions at the factory. Maher noted that a "handicapped person's physical or mental limitations may affect his or her ability to function at work. . . . Evaluation of an employee's disability and its effect on job performance is a proper subject for arbitration." Maher, 125 N.J. at 482. However, the facts of that case are clearly distinguishable. There, the CBA required employee compliance with all New Jersey Transit (NJT) safety rules. The plaintiff, a signalman, asserted that NJT's refusal to exempt him from a rule that required him to wear safety glasses despite his sight disability violated his rights under the NJLAD. The incorporation of NJT safety rules in the CBA meant that any consideration of his NJLAD claims required reference to the agreement and NJT's safety rules and requirements.
This case is more similar to Kube and DiPuccio than to Maher. In Kube, the CBA lacked any provision putting into effect a plan for accommodating handicapped employees. Kube, 865 F. Supp. at 228 (D.N.J. 1994). Nor was there any allegation that an accommodation program was implemented pursuant to the CBA or that the plaintiff's handicap was evaluated pursuant to any such program. Id. Similarly, in DiPuccio, the CBA did not establish safety requirements of "essential job functions" applicable to the plaintiff's position as a driver; therefore, reference to the CBA was not required. DiPuccio, 890 F. Supp. at 692.
Individualized Shirts makes much legal hay of the CBA's lack of a clause requiring company-wide seniority rights. The lack of such a policy means that the company could not place Nieves in the computer room upon her return to the company if it would require displacing another employee. However, the silence of the agreement is just that -- no reference to the CBA is required. Individualized Shirts also refers to the CBA's civil rights clause to bolster its argument that the CBA is relevant. There are two answers to that argument. First, Nieves has not invoked the clause and asserted that her contractual rights were breached. Moreover, even if she had,
the mere fact that a broad contractual protection against discriminatory . . . discharge may provide a remedy for conduct that coincidentally violates state law does not make the contours of the state-law violation dependent upon the terms of private contract. For even if an arbitrator should conclude that the contract does not prohibit a particular discriminatory . . . discharge, that conclusion might or might not be consistent with a proper interpretation of state law.
Kube, 865 F. Supp. at 228 (quoting Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 412-13, 100 L. Ed. 2d 410, 108 S. Ct. 1877 (1988)). Nieves' statutory rights under the NJLAD are quite separate. Second, the CBA civil rights clause does not even mention disability. It only prohibits discrimination "on account of race, color, religion, creed, sex, or national origin." Although it states, "This clause shall be interpreted broadly to be co-extensive with all federal, state, or local anti-discrimination laws and where available, judicial interpretation thereof," one could well argue plausibly that such interpretive breadth refers only to the stated categories.
The CBA is completely tangential to a determination of Nieves' claims under the NJLAD. Thus, her claims are not preempted by § 301 of the LMRA.
C. Whether Nieves Can Establish A Prima Facie Case Under the ADA.
Nieves asserts claims of disability discrimination and failure to accommodate against Individualized Shirts. The ADA provides:
No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.