OpenJurist

48 F3d 1232 Piper v. US West Communications

Phyllis L. PIPER, Plaintiff-Appellant,
v.
U.S. WEST COMMUNICATIONS, Defendant-Appellee.

Nos. 94-2090, 94-2116.

United States Court of Appeals, Tenth Circuit.

March 14, 1995.

48 F.3d 1232
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

ORDER AND JUDGMENT1

Before MOORE, ALARCON,2 and ANDERSON, Circuit Judges.

1

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

2

The only issue before us in this appeal is stated by the Appellant as follows:

3

That Plaintiff/Appellant's Complaint is not preempted under the National Labor Relations Act (29 U.S.C. Section 141 to 187) because of waiver by Defendant/Appellee.

4

....

5

Defendant/Appellee's failure to raise the preemption question at the time the complaint with the EEOC was filed had the effect of denying the Plaintiff/Appellant the right to pursue her remedies under the Communication Workers of America contract with Defendant/Appellee, Omaha Woodman Life Insurance Soc. v. Krussman, 131 F.2d 833 (9th Cir.1942).

6

Brief of the Plaintiff-Appellant at 6, 7.

7

We disagree. The respondent is not required to raise defenses before the E.E.O.C. as a prerequisite to raising such defenses in court. See Harold v. American Greetings Corp., No. 89C6076, 1990 WL 77515, at * 3 (N.D. Ill. May 28, 1990); Cada v. Baxter Healthcare Corp., No. 88 C 10419, 1990 WL 358580, at * 3 (N.D. Ill., Mar. 20, 1990), aff'd, 920 F.2d 446 (7th Cir.), cert. denied, 501 U.S. 1261 (1991); Levine v. Bryant, No. 85 C 3607, 1986 WL 9747 (N.D. Ill., Sept. 4, 1986); Janowiak v. Corporate City of South Bend, 576 F.Supp. 1461, 1465 (N.D. Ind.1983), rev'd on other grounds, 750 F.2d 557 (7th Cir, 1984), vacated, 481 U.S. 1001 (1987); Byrnes v. Herion, Inc., 757 F.Supp. 648, 653 (W.D. Pa.1990). Consequently, failure to raise a defense in administrative proceedings before the E.E.O.C. does not constitute a waiver.

8

We are not required to, and do not, express an opinion on the preemption issue itself.

9

AFFIRMED.

1

This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of the court's General Order filed November 29, 1993. 151 F.R.D. 470

2

Honorable Arthur L. Alarcon, Senior Circuit Judge, United States Court of Appeals for the Ninth Circuit, sitting by designation