Reginald Roberts v. Risa Vetri Ferman , 448 F. App'x 254 ( 2011 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 11-1481
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REGINALD A. ROBERTS,
Appellant
v.
RISA VETRI FERMAN; MONTGOMERY COUNTY;
JAMES MATTHEWS; JOSEPH HOEFFEL; BRUCE L. CASTOR, JR.;
OSCAR P. VANCE, JR.; SAMUEL GALLEN; STEPHEN FORZATO;
EDMUND JUSTICE; CAROLYN T. CARLUCCIO; MARK BERNSTIEL;
TONI LUTER, SUED INDIVIDUALLY HELD LIABLE JOINT AND SEVERALLY
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 2-09-cv-04895)
Magistrate Judge: Honorable Luis Felipe Restrepo
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Submitted Pursuant to Third Circuit LAR 34.1(a)
September 19, 2011
Before: FISHER, HARDIMAN and GREENAWAY, Jr., Circuit Judges.
(Filed: September 26, 2011)
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OPINION OF THE COURT
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FISHER, Circuit Judge.
Reginald Roberts‟s motion for a preliminary injunction to order Montgomery
County to participate in arbitration was denied by the District Court. Roberts now
appeals, arguing the District Court erred in holding that the Collective Bargaining
Agreement and 43 P.S. § 217 do not entitle him to arbitration. For the following reasons,
we will affirm the District Court.
I.
We write primarily for the parties who are familiar with the factual context and
legal history of this case. Therefore, we will set forth only those facts necessary to our
analysis.
On March 15, 1999, Roberts began employment as a Montgomery County
Detective. As a County Detective, Roberts was part of a Collective Bargaining
Agreement (“Agreement”) between Montgomery County and the Montgomery County
Detective Bureau. The Agreement included a “Grievance and Arbitration Procedure,”
which outlined a two-step process to be applied to disputes concerning the application or
interpretation of the Agreement and matters of discipline. Step one of the procedure
directed employees to contact the department head concerning their grievance. If a
resolution was not reached in step one, step two allowed the employee to appeal the
grievance to the row officer (District Attorney of Montgomery County) for consideration.
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On August 8, 2008, Roberts was terminated from his position with the
Montgomery County Detective Bureau. Rather than follow the two-step procedure
outlined in the Agreement, Roberts contacted the County in October 2008, requesting
arbitration concerning his termination. On November 17, 2008, the County declined the
request to participate in arbitration.
Roberts filed this action against Montgomery County in October 2009, alleging
employment discrimination and retaliation pursuant to Title VII of the Civil Rights Act,
42 U.S.C. § 2000e et seq., and the Pennsylvania Human Relations Act, 43 P.S. § 951 et
seq. Roberts also alleged violations of his federal civil rights pursuant to 42 U.S.C.
§ 1983. Approximately one year after filing suit, Roberts filed his Fed. R. Civ. P. 65
Petition, calling for injunctive relief to order the County to participate in arbitration. He
sought to compel the County to engage in arbitration over the interpretation of the
Agreement, denial of heart and lung benefits, the proper value or amount of benefits due
Roberts, and his termination. A Magistrate Judge for United States District Court for the
Eastern District of Pennsylvania1 held that Roberts failed to show he was entitled to
arbitration under the Agreement or 43 P.S. § 217, and the preliminary injunction was
denied. Roberts filed a timely notice of appeal from the decision.
1
The parties consented to the United States magistrate judge‟s authority pursuant
to 28 U.S.C.A. § 636(c) and Fed. R. Civ. P. 73.
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II.
The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction
pursuant to 28 U.S.C. § 1292(a).2 We review the District Court‟s conclusions of law
under a plenary standard, findings of fact for clear error, and the decision to grant or deny
a preliminary injunction for abuse of discretion. Rogers v. Corbett, 468 F.3d 188, 192
(3d Cir. 2006).
III.
Roberts argues that the District Court‟s denial of a preliminary injunction was in
error. In seeking a preliminary injunction to compel arbitration, the party must
demonstrate:
(1) it has a likelihood of success on the merits, (2) it will suffer irreparable
harm if the injunction is denied, (3) granting preliminary relief will not
result in even greater harm to the nonmoving party, and (4) the public
interest favors such relief.
Rogers, 468 F.3d at 192 (internal quotation marks omitted). All four elements must be
satisfied in order to grant the injunction. Maldonado v. Houstoun, 157 F.3d 179, 184 (3d
2
The County claims this Court lacks jurisdiction under 28 U.S.C. §1292(a) due to
the Supreme Court‟s decision in Carson v. Am. Brands, Inc., 450 U.S. 79 (1981). In
Carson, the Supreme Court held, “[f]or an interlocutory order to be immediately
appealable under §1292(a)(1) . . . a litigant must show more than that the order has the
practical effect of refusing an injunction,” by satisfying a two prong test. Id at 84. This
case is distinguishable however; it involves an express denial of injunctive relief rather
than merely the practical effect of a denial. Thus Roberts need not satisfy the Carson test
in order to have jurisdiction under §1292(a). See OFC Comm Baseball v. Markell, 579
F.3d 293, 298 (3d Cir. 2009) (finding the appellant need not satisfy any jurisdictional
hurdle to appeal from the denial of an injunction).
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Cir. 1998). The District Court concluded that a preliminary injunction was not warranted
because Roberts could not demonstrate a likelihood of success on the merits. We agree.
To demonstrate a likelihood of success on the merits, Roberts must show that 43
P.S. § 217 and/or the Collective Bargaining Agreement allows for arbitration of Roberts‟
grievance. Turning first to the language of the statute, while 43 P.S. § 217 clearly allows
for interest arbitration, courts have also found grievance arbitration to fall within its
scope. See Moon Twp. v. Police Officers of Moon Twp., 498 A.2d 1305, 1311-12 (Pa.
1985); Chirico v. Bd. of Supervisors for Newton Twp., 470 A.2d 470, 474 (Pa. 1983).
However, if the Collective Bargaining Agreement has in place a grievance mechanism
that is devoid of arbitration, arbitration will not be imposed by 43 P.S. § 217. W.
Lampeter Twp. v. Police Officers of W. Lampeter Twp., 598 A.2d 1049, 1051 (Pa
Commw. Ct. 1991).
The pertinent sections of the Agreement between Montgomery County and its
detectives read:
18. Grievance and Arbitration Procedure
(a) A grievance shall be defined as any dispute involving the application or
interpretation of the Agreement or in matters of discipline….
GRIEVANCE PROCEDURE
STEP #1
A. Department Head: If the employee and his/her immediate supervisor
cannot resolve a grievance informally, the employee shall send a written
statement (E-mail is not acceptable nor proper) of his/her grievance to
the Department Head within fifteen (15) calendar days of when the
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employee becomes aware of the grievance. The Department Head
receiving the written grievance shall meet with the employee and their
representative if so desired, within ten (10) days, and other appropriate
persons in a good faith effort to resolve this grievance. The Department
Head shall give the employee a written decision within ten (10) calendar
days following the meeting.
STEP #2
A. Row Officer: (District Attorney of Montgomery County) In the event
that no satisfactory solution is reached at the first step, the employee
may appeal the grievance to the District Attorney or his/her designee.
Such an appeal must be made within ten (10) calendar days after the
rendering of the decision as a result of the first step or after the decision
at the first step should have been made. The employee shall make a
written statement of his/her grievance and why the decision, if one is
rendered, is wrong, and if no decision is rendered, what the employee
feels the decision should be. The Row Officer or his/her designee will
convene a fact finding meeting of the involved parties within fifteen
(15) days of receiving and written grievance. The Row Officer or
his/her designee shall then render a decision within sixty (60) calendar
days, unless extended by mutual agreement for no more than thirty (30)
days.
B. This is the final step of the grievance procedure and there will be no
further remedy once the decision is handed down by the Row Officer or
his/her designee.
Entire Agreement. The Memorandum of Understanding, together with all
other County personnel publications, unless specifically contrary to the
Arbitration Award of July 5, 1994 or the Supplemental Award of April 18,
1995, shall constitute the entire Agreement between the parties and there
are no verbal understandings, conditions, or stipulations aside from the
terms set forth herein and in any said publications which are relevant to this
Agreement.
Roberts claims that the Agreement allows for arbitration because both the title to
section 18 and the reference to an “Arbitration Award” imply such. Furthermore,
Roberts argues that the District Court failed to demonstrate with “positive assurance that
the arbitration clause is not susceptible of an interpretation that covers the asserted
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dispute.” AT&T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 650 (1986).
We disagree.
We recognize the strong federal policy of using arbitration to resolve labor
disputes. See, e.g., Rite Aid of Pa., Inc. v. United Food & Commercial Workers Union,
Local 1776, 595 F.3d 128, 131 (3d Cir. 2010); United Parcel Serv., Inc. v. Int’l Bhd. of
Teamsters, Local Union No. 430, 55 F.3d 138, 141 (3d Cir. 1995). However, “a party
cannot be required to submit to arbitration unless he has „agreed to submit.‟” In re Cont’l
Airlines, Inc., 484 F.3d 173, 182 (3d Cir. 2007) (quoting AT&T Techs., 475 U.S. at 648).
Here, despite the Agreement‟s title to section 18 and mention of an Arbitration
Award, the grievance procedure does not allow for arbitration. Rather, “the Agreement
clearly provides for a two-step grievance procedure [and] . . . [h]aving freely bargained
for the grievance procedure, the parties are bound by it.” W. Lampeter Twp., 598 A.2d at
1051. Furthermore, the Agreement is clear that the document, including the grievance
procedure, represents the parties‟ entire agreement. As the Agreement contains a
grievance procedure that does not include arbitration, 43 P.S. § 217 does not provide
Roberts with a right to arbitration. Id.
Because the first element needed for a preliminary injunction is not satisfied,
Roberts‟ request must be denied. Moreover, the District Court properly exercised its
discretion in declining to hold an evidentiary hearing because the language of the
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Agreement is not disputed and its meaning is clear. See Kos Pharmaceuticals, Inc. v.
Andrx Corp., 369 F.3d 700, 719 (3d. Cir. 2004).
IV.
For the foregoing reasons, we will affirm the judgment of the District Court.
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