In any organization, disputes will arise from time to time. Occasionally, these disputes can only be resolved through formal proceedings. Traditionally, these proceedings have occurred under the auspices of our court system. However, particularly of late, our court system has too often proven to be exceedingly costly and time consuming. The result has been a failure to provide the parties with an acceptable mechanism to resolve their disputes. With this in mind, the Archdiocese of San Francisco and all of its employees (executive, supervisory and non-supervisory alike) will resolve employment disputes through this Alternative Dispute Resolution Policy. This Policy is aimed at resolving claims or causes of action arising out of or related to the termination of employment, alleged discriminatory conduct, alleged sexual or other harassment or retaliation that are recognizable in a court of competent jurisdiction, as quickly and fairly as possible, to the benefit of everyone involved.
If a dispute which concerns the employment relationship and which constitutes a claim or cause of action that is recognizable in a court of competent jurisdiction arises between the Archdiocese of San Francisco and its employees, the parties may first try to resolve the dispute through direct discussions.
Agreement to Arbitrate #
If informal discussions are unsuccessful, the aggrieved party involved may submit any dispute arising out of, or related to, termination of employment, alleged unlawful discrimination, alleged sexual or other harassment, or retaliation to final and binding arbitration under the Federal Arbitration Act, 9 U.S.C. § 1, et seq. Arbitration is the exclusive remedy for both the employee and the Archdiocese of San Francisco.
Employment disputes subject to this Policy include alleged violations of applicable federal, state and/or local laws and statutes including, but not limited to, discrimination and/or harassment claims under Title VII of the Civil Rights Act, the Americans with Disabilities Act, and the Age Discrimination in Employment Act of 1967; claims based on any purported breach of contractual obligation, including breach of the covenant of good faith and fair dealing; claims of wrongful termination or constructive termination; and claims based on any purported breach of duty arising in tort, including violations of public policy.
This Policy does not apply to the following types of disputes or claims:
- Claims that the courts of the jurisdiction in which the employee works (or worked) have expressly held are not subject to mandatory arbitration, where such decisions are not inconsistent with or preempted by federal law;
- Disputes or claims related to Workers’ Compensation benefits;
- Disputes or claims related to unemployment insurance benefits;
- Disputes or claims that are expressly excluded by statute from resolution through mandatory arbitration, and claims that are expressly required to be arbitrated under a different procedure, pursuant to the terms of an employee benefit plan (unless the restrictions of such statute or plan are preempted under the Federal Arbitration Act);
- Disputes or claims that question, dispute, or challenge the teachings of the Roman Catholic Church.
This Policy does not preclude employees from exercising statutorily protected rights, including the right to file any administrative charge or complaint discrimination with administrative agencies such as the Equal Employment Opportunity Commission. It also does not prevent employees from participating in any investigation or proceeding conducted by an agency. However, if one of these agencies issues a right to sue notice, binding arbitration will be the sole remedy. In addition, any relief obtained through this policy will be the exclusive individual remedy, and will constitute an accord and satisfaction of all individual damage claims.
THIS POLICY IS IN LIEU OF CIVIL COURT ACTIONS FOR THE EMPLOYMENT DISPUTES COVERED BY THE POLICY. ALL RIGHTS TO A CIVIL COURT ACTION FOR EMPLOYMENT DISPUTES COVERED BY THIS POLICY ARE WAIVED BY BOTH THE EMPLOYEE AND THE ARCHDIOCESE OF SAN FRANCISCO. ONLY THE ARBITRATOR, AND NOT A JUDGE OR JURY, WILL HEAR SUCH DISPUTE.
Request for Arbitration #
To initiate arbitration, the party desiring arbitration, whether the employee or the Archdiocese of San Francisco, must submit a written request for arbitration to the Director of Human Resources (where the employee is initiating arbitration) and to the employee (where the Archdiocese of San Francisco is initiating arbitration) within the time limits that would apply to the filing of a civil complaint in court. If the request for arbitration is not submitted within those time limitations, the initiating party will not be able to raise the claim in arbitration or any other forum. The request for arbitration must include all of the following information:
- A detailed description of the dispute;
- The date when the dispute first arose;
- The names, work locations and telephone numbers of any individuals, including employees or supervisors, with knowledge of the dispute; and
- The relief requested.
The responding party may submit counterclaim(s) in accordance with applicable state or federal law.
A Request for Arbitration Form is attached.
Selection of the Arbitrator #
All disputes will be resolved by a single Arbitrator. The Arbitrator will be mutually selected by the employee and the Archdiocese of San Francisco. If the parties cannot agree on an Arbitrator, a list of seven arbitrators, who are experienced in employment matters, will be provided by the California State Mediation and Conciliation Service (“CSMCS”) or another independent arbitration service if a list from CSMCS cannot be obtained. The parties will select the Arbitrator by alternately striking names from the list. The party who may strike the first name will be selected by coin toss. The last name remaining on the list will serve as Arbitrator.
On selection, the Arbitrator will set an appropriate time and date for the arbitration hearing, after conferring with the parties. The hearing will take place in the geographic area in which the employee works or worked, unless the parties agree otherwise.
The Arbitrator’s Authority #
The Arbitrator will have the following powers:
- Ruling on motions regarding discovery and on procedural and evidentiary issues that arise during the arbitration.
- Ruling on motions to dismiss and/or motions for summary judgment, applying the standards governing such motions under the Federal Rules of Civil Procedure.
- Issuing protective orders on the motion of any party or third party witness. These protective orders may include, but are not limited to, sealing the record of the hearing, in whole or in part (including discovery proceedings and motions, transcripts, and the decision and award), to protect the privacy, confidentiality or other constitutional or statutory rights of parties and/or witnesses.
- Ruling on the issue(s) submitted for arbitration, as identified in the request for arbitration and/or counterclaim(s). Any issue not identified in those
documents is outside the scope of the Arbitrator’s jurisdiction, and any award involving such issue(s) shall, upon motion by a party, be vacated.
The discovery process will proceed and be governed as follows:
- Both parties may obtain discovery by any of the following methods:
- Depositions, three per side as of right, with more permitted if leave is obtained from the Arbitrator.
- Written interrogatories, up to a maximum combined total of 20 per party, or a greater number as may be permitted by the Arbitrator. The responding party has 20 days to respond.
- Requests for production of documents or things or permission to enter upon land or other property for inspection. The responding party has 20 days to serve a written response, produce the documents and allow entry or to file objections to the request.
- Physical and mental examination, in accordance with Federal Rule of Civil Procedure 35(a).
- Any motion to compel answers or production must be made to the Arbitrator within 15 days of the receipt of unsatisfactory answers or objections.
- All discovery requests will be submitted on or before 60 days before the arbitration hearing date.
- The scope of discoverable evidence will be in accordance with Federal Rule of Civil Procedure 26(b)(1).
- The Arbitrator has the power to enforce the aforementioned discovery rights and obligations by the imposition of the same terms, conditions, consequences, liabilities, sanctions and penalties as can or may be imposed in like circumstances in a civil action by a federal court under the Federal Rules of Civil Procedure, except the power to order arrest or imprisonment of a person.
Hearing Procedure #
The hearing will proceed according to applicable federal law.
- The Arbitrator will rule at the beginning of the hearing on procedural issues that bear on whether the arbitration is allowed to proceed.
- Each party has the burden of proving each element of its claims or counterclaims, and each party has the burden of proving any of its affirmative defenses.
- In addition to, or in lieu of closing argument, either party will have the right to present post-hearing briefs. The due date for exchanging these briefs will be mutually agreed on by the parties. If an agreement cannot be reached, the Arbitrator will set the date.
Opinion and Award #
The Arbitrator will issue an opinion and award in writing that is signed and dated, and that states the essential findings of fact and conclusions of law. The opinion and award will be final and binding on the parties. Either party may petition a court of competent jurisdiction to confirm, enforce, correct or vacate the Arbitrator’s opinion and award.
The Arbitrator may award either party any remedy at law or in equity to which the prevailing party would otherwise have been entitled if the matter been litigated in court. These remedies include general, special and punitive damages, injunctive relief, recoverable costs, and attorney’s fees, where provided by contract or statute.
Allocation of Costs #
The Archdiocese shall bear the fees of the Arbitrator, the cost of the hearing room and the court reporter’s fee.
Each party will be responsible for his/her/its own attorneys’ fees and costs, except when the Arbitrator awards attorneys’ fees and/or costs to the prevailing party consistent with applicable law.
Severability and Impact on Other Policies #
This Policy may be modified from time to time to ensure that it is consistent with applicable law. If any provision of this Policy is determined by a court of competent jurisdiction to be illegal, invalid or unenforceable to any extent, the term or provision will be enforced to the extent permissible under the law, and all remaining terms and provisions will continue in full force and effect.
Nothing in this Policy is intended to alter the “at-will” employment relationship between the Archdiocese of San Francisco and its employees.
ACKNOWLEDGMENT AND AGREEMENT TO ARBITRATE #
I acknowledge that in the event that a serious employment dispute arises between me and the Archdiocese, the parties involved will make all efforts to resolve these disputes through informal means. If these informal attempts at resolution fail, the parties involved will submit the dispute to final and binding arbitration, if the dispute arises out of or is related to the termination of my employment, any allegation of discrimination or sexual other harassment or retaliation.
I acknowledge that by accepting or continuing in employment with the Archdiocese I agree to submit to final and binding arbitration, pursuant to the Archdiocese’s Alternative Dispute Resolution Policies which I have received a copy, any dispute between me and the Archdiocese arising out of or related to the termination of my employment, alleged discriminatory conduct, alleged sexual or other harassment or retaliation. Arbitration is the exclusive remedy for all such disputes; no other action may be brought in any other forum. Disputes related to workers’ compensation, unemployment insurance, and wag and hour issues are not arbitrable. THIS AGREEMENT IS A WAIVER OF ALL RIGHTS TO A CIVIL COURT ACTION FOR A DISPUTE RELATING TO TERMINATION OF EMPLOYMENT, ALLEGED DISCRIMINATORY CONDUCT, OR ALLEGED SEXUAL OR OTHER HARASSMENT; ONLY THE ARBITRATOR, NOT A JUDGE OR JURY, WILL DECIDE THE DISPUTE.
Such arbitration is the exclusive remedy for both me and the Archdiocese. However, this agreement to arbitrate does not undermine the fact that I am an “at-will” employee and can therefore be terminated for any reason, or no reason at all.
I understand that employment disputes arising out of or related to termination of employment, discriminatory conduct, alleged sexual or other harassment or retaliation include, but are not limited to, the following: alleged violations of federal, state and/or local constitutions, statutes or regulations; claims based on any purported breach of contractual obligation, including breach of the covenant of good faith and fair dealing; and claims based on any purported breach of duty arising in tort, including violations of public policy.