Fired University of Connecticut men’s basketball coach Kevin Ollie will ask the Second Circuit if he acted too soon in a bid to preserve court claims for race discrimination while his union grievance is pending.
A lower court Feb. 4 rejected Ollie’s request for a preliminary injunction to block UConn from invoking a clause in its collective bargaining agreements allowing it to terminate ongoing union arbitration of a grievance if a worker pursues the same or related claims in another forum.
Ollie, who is black, says the university’s refusal to waive its right to invoke that clause if he files a discrimination charge with federal or state investigative authorities puts him in the unwinnable position of losing his union grievance rights or his ability to sue in court for civil rights violations. Filing a charge with federal or local authorities is a precondition to suing in court for job bias.
It’s a situation familiar to employees who are also union members.
Ollie’s bid to preserve his rights was premature because UConn never actually invoked the CBA clause, it only refused to promise that it wouldn’t, Judge Kari A. Dooley of the U.S. District Court for the District of Connecticut said. The university also refused to enter into an agreement to toll or extend the tight deadlines Ollie has to file a discrimination charge under federal and state law.
A worker must show actual or imminent harm before a court may issue a preliminary injunction, Dooley said. Because it’s not known for sure that UConn will invoke the CBA clause should Ollie file a discrimination charge, the former coach hasn’t suffered an actual injury, the judge said.
Ollie argued that UConn’s prospective invocation of the clause amounts to a “chilling” of his rights. But courts have only ever recognized a chilling argument in First Amendment cases where the plaintiff faced real or imminent criminal or civil consequences for engaging in speech believed to be constitutionally protected, Dooley said
“Ollie does not have to break to the law (or even the CBA)" to pursue his job bias claims, she said.
Dooley also rejected Ollie’s argument that the “credible threat” UConn will invoke the clause if he files a bias charge effectively coerces him into not doing so.
Ollie filed his notice of appeal March 4.
Madsen, Prestley & Parenteau LLC represents Ollie. Shipman & Goodwin LLP represents UConn.
The case is Ollie v. Univ. of Conn., D. Conn., No. 3:18-cv-02070, notice of appeal 3/4/19.
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