Using Mediation Preemptively to Resolve Workplace Disputes

We have previously advocated that employers use mediation preemptively to quietly resolve discrimination claims and other workplace disputes before they escalate into litigation. The fact pattern described in a recent Seventh Circuit decision validates that recommendation. See Fields v. Bd. of Educ. of City of Chicago, No. 17-3136, 2019 WL 2635623 (7th Cir. June 27, 2019). Specifically, as discussed below, it appears that pursuing mediation at a pre-litigation stage helped the defendants in that case defuse an escalating dispute, and refrain from disciplinary action that might have otherwise made it more difficult for them to prevail in the subsequent litigation.

In Fields, the plaintiff, Gloria Fields, was a 63-year-old African-American woman who had been working as an elementary school teacher for the Chicago Board of Education (Board) since 2002. In July 2013, a new principal, Chad Weiden, joined the school. After reviewing Fields’s lesson plans, he told her they were too scripted and long. He also observed Fields in the classroom, and advised that her teaching was disconnected from her lesson plans, and that her students were not engaged in the lesson.

Weiden suggested ways for Fields to improve, but Fields resisted. She also missed several school functions and professional development workshops at which attendance was mandatory, and failed to timely submit request forms for a field trip. In response to these incidents, Weiden issued notices to Fields scheduling meetings with her to develop a performance improvement plan, and warning her that she faced disciplinary action (up to and including dismissal) if her performance did not improve.

Fields eventually accrued three performance improvement notices during the 2013-14 and 2014-15 school years, which subjected her to possible disciplinary action. In January 2016, the teachers’ union and the Board agreed to mediation, which both Weiden and Fields attended. The Board initially proposed to Fields that she retire with a “do not hire” designation, which would prevent her from being rehired. But the mediator asked Weiden to downgrade Fields’s performance improvement notices. Weiden agreed, and so Fields received no discipline as a result of the previously issued performance improvement notices.

After the mediation, Fields took a leave of absence, and retired in May 2016 without ever returning to work. After retiring, however, she sued Weiden and the Board for race and age discrimination (subsequently adding a retaliation claim following certain actions taken by Weiden in response to the lawsuit).

The defendants moved for summary judgment on the ground that there was no evidence that Fields had suffered adverse employment action (one of the elements required to establish a discrimination claim). Fields countered that she had been constructively discharged because the Board put her on notice that she would be immediately fired if she did not resign.

The trial court granted summary judgment to the defendants. On appeal, among other arguments, Fields contended that the mediation constituted an adverse employment action because it confirmed the Board wished to fire her. The Seventh Circuit disagreed, noting that the mediation did not result in any discipline. To the contrary, the outcome of the mediation would have led a reasonable employee to conclude that her job was secure.

From the standpoint of mediation’s potential to quietly resolve workplace disputes without litigation, those observations are critical. Absent mediation, it appears that Weiden would have taken disciplinary action against Fields that would have changed the terms or conditions of her employment. That would have constituted adverse employment action. But the mediator intervened and persuaded Weiden to downgrade Fields’s performance improvement notices, which resulted in no discipline. Consequently, at the time of her voluntary retirement, Fields had not suffered an adverse employment action. Nor did she have any reason to believe she faced imminent termination. This obviously simplified the defendants’ case once Fields sued.

As mediators, we can sympathize with both sides in this dispute. On the one hand, Fields had been working as a teacher at the elementary school since 2002. Weiden shows up in July 2013, and begins criticizing her lesson plans and teaching skills. To be sure, perhaps some improvement was needed. But it’s easy to appreciate why Fields reacted defensively. To simply accede to Weiden’s recommendations might have been too difficult for Fields psychologically since it would have implicitly conceded that she was not a competent teacher. So she responded passive aggressively.

On the other hand, the record reflects that Weiden had good intentions in terms of raising the standards at the school, and genuinely wanted to help Fields improve her teaching. He was probably unable to comprehend why Fields was resisting his guidance, and this inability to see things from her perspective likely led him to perceive Fields as stubborn and unrepentant.

The record does not reflect whether the mediator encouraged Weiden to empathize with Fields. But for whatever reason, the mediator successfully persuaded Weiden to given Fields a second chance. As a result, Weiden refrained from taking any steps that might have constituted adverse employment action. To be sure, Fields would have still faced other hurdles in her lawsuit, but as noted, the lack of any adverse employment action certainly made the defendants’ case much easier.