## Facts

- Pricilla De Souza Silva worked as a unionized janitor for Pioneer Janitorial Services, Inc.
- Silva alleged that her supervisor subjected her to ongoing sexual harassment and that Pioneer was responsible under Massachusetts law.
- Silva filed a grievance under the collective bargaining agreement (CBA), which prohibited sex discrimination and sexual harassment.
- The CBA created a multi-step grievance process and allowed arbitration only if pursued by the union; Silva could not unilaterally invoke arbitration.
- The CBA also contained an election-of-forum clause stating that once an employee chose a forum (contractual grievance/arbitration or another legal forum), that forum would be the “sole and exclusive forum” for the claim.
- Neither Pioneer nor the union completed the grievance process; no hearing occurred on Silva’s harassment claims, and the union did not submit the matter to arbitration.
- Silva then pursued statutory remedies and filed suit asserting sexual harassment and retaliation under Mass. Gen. Laws ch. 151B, along with a common-law negligence theory (negligent hiring, supervision, and/or retention).
- Pioneer removed the case to federal court and moved to dismiss, arguing Silva waived litigation by electing the CBA grievance route.

## Issues

1. Whether filing a CBA grievance triggered the CBA’s “sole and exclusive forum” clause and waived Silva’s right to litigate her Massachusetts statutory discrimination and retaliation claims.
2. Whether a CBA forum-selection/election provision is enforceable to bar a statutory discrimination suit when the union controls access to arbitration and declines to arbitrate.

## Decision

- The court denied Pioneer’s motion to dismiss.
- The court held that Silva’s resort to the grievance procedure did not bar her statutory claims where the union had exclusive authority to arbitrate and did not pursue arbitration.
- The court concluded that enforcing the exclusivity clause in these circumstances would operate as an impermissible waiver of Silva’s statutory rights because she was left without an available alternative forum.

## Legal Principles

- A union-negotiated arbitration requirement for statutory discrimination claims may be enforceable if it is clear and arbitration is an actually available mechanism for vindicating those rights.
- An election-of-forum clause cannot be enforced to eliminate judicial relief when the contractual forum is unavailable in practice, including where the union is the gatekeeper to arbitration and refuses to arbitrate.
- A court will not treat an employee’s initial filing of a grievance as a waiver of statutory antidiscrimination rights when the employee lacks control over access to arbitration and enforcement would leave the employee with no forum.

## Conclusion

The court allowed Silva’s statutory discrimination and retaliation claims to proceed because, although the CBA purported to make the grievance/arbitration route exclusive once chosen, the union’s control over arbitration and its refusal to arbitrate meant that enforcing exclusivity would deprive Silva of any forum to pursue her Massachusetts antidiscrimination rights.


De Souza Silva v. Pioneer Janitorial Servs., Inc., 777 F. Supp. 2d 198 (D. Mass. 2011)