Fraternal Order of Police v. WMATA , 780 F.3d 238 ( 2015 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1332
FRATERNAL ORDER OF POLICE METRO TRANSIT POLICE LABOR
COMMITTEE, INC.,
Plaintiff - Appellee,
v.
WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema,
District Judge. (1:12-cv-01387-LMB-JFA)
Argued: January 29, 2015 Decided: March 10, 2015
Before TRAXLER, Chief Judge, and NIEMEYER and MOTZ, Circuit
Judges.
Reversed by published opinion. Judge Motz wrote the opinion, in
which Chief Judge Traxler and Judge Niemeyer joined.
ARGUED: Gerard J. Stief, WASHINGTON METROPOLITAN AREA TRANSIT
AUTHORITY, Washington, D.C., for Appellant. Jonathan G.
Axelrod, BEINS, AXELROD, P.C., Washington, D.C., for Appellee.
ON BRIEF: Robert G. Ames, Maggie T. Grace, VENABLE LLP,
Washington, D.C.; Kathryn Pett, General Counsel, Janice L. Cole,
Chief Counsel, Metro Transit Police, WASHINGTON METROPOLITAN
AREA TRANSIT AUTHORITY, Washington, D.C., for Appellant. Justin
P. Keating, BEINS, AXELROD, P.C., Washington, D.C., for
Appellee.
2
DIANA GRIBBON MOTZ, Circuit Judge:
This case involves a labor dispute between the Washington
Metropolitan Area Transit Authority (WMATA) and the Fraternal
Order of Police (FOP). The dispute arose after WMATA fired two
of its police officers, reinstated them pursuant to arbitration
awards, and then fired the officers a second time after Maryland
declined to recertify them as police officers in that state.
The district court granted the FOP’s motion for summary judgment
and ordered WMATA to reinstate the two officers. For the
reasons that follow, we reverse.
I.
WMATA, an interstate agency, operates the Metrorail and
Metrobus systems in Washington, D.C., Maryland, and Virginia
under a compact agreed to by those jurisdictions. The compact
authorizes WMATA to employ a police force, the Metro Transit
Police Department (MTPD), whose officers enforce the laws of the
compact jurisdictions on the Metro system. The FOP is the
bargaining agent for MTPD officers and therefore a party to the
officers’ collective bargaining agreement with WMATA. The
agreement permits WMATA to discipline officers only for “just
cause” and outlines a four-step grievance procedure for
resolving labor disputes, culminating in arbitration.
3
In 2011, WMATA fired two MTPD officers, Mark Spencer and
Sherman Benton (collectively “the Officers”). WMATA discharged
Officer Spencer for allegedly striking a passenger with his
baton and for being untruthful during the subsequent
investigation. WMATA fired Officer Benton in the wake of an
alleged physical altercation with a female companion in Atlantic
City; WMATA determined that he had made false statements during
the investigation of the incident and had engaged in conduct
that discredited himself and the MTPD.
In response to these terminations, the FOP filed grievances
on behalf of the Officers. Both cases reached arbitration, and,
in 2012, the Board of Arbitration overturned both discharges.
Although the Board found that WMATA had legitimate grounds for
disciplining the Officers, the Board concluded that lengthy
suspension, not termination, was the appropriate remedy. It
ordered WMATA to reinstate the Officers after their respective
suspensions.
As a result of their initial terminations, however, the
Officers had lost their certifications to serve as police
officers in Maryland. Under Maryland law, a police officer must
be certified in order to exercise law enforcement powers within
the state. Md. Code Regs. § 12.04.01.01(B)(4) (2015). If an
officer loses his certification, he must apply for
recertification from the Maryland Police Training Commission
4
(“Maryland Commission”). Id. § 12.04.01.07(A). Moreover, the
WMATA Compact mandates that MTPD officers “shall have the same
powers . . . and shall be subject to the same limitations . . .
as a member of the duly constituted police force” of the
political subdivisions in which WMATA operates. WMATA Compact
§ 76(b) (2009). The Officers therefore needed to apply for
recertification from the Maryland Commission in order to resume
police activities for WMATA in Maryland.
Beginning in April (Officer Spencer) and May (Officer
Benton) of 2012, WMATA placed the Officers on paid
administrative leave while they sought recertification. As part
of the recertification process, Maryland law required the MTPD
to send the Maryland Commission various materials, including
“any derogatory information discovered during the investigation”
that led to the firing of the Officers. Md. Code Regs.
§ 12.04.01.08(D)(2) (2015). Michael Taborn, who was then chief
of the MTPD, wrote letters to the Maryland Commission stating,
in no uncertain terms, that the MTPD did not favor
recertification of the Officers. The record suggests this is
the first time that the MTPD has lobbied against recertification
in the wake of an arbitration decision ordering an officer’s
reinstatement. The Maryland Commission denied Officer Spencer’s
request for recertification in July 2012; it denied Officer
Benton’s request in August 2012 and subsequently denied his
5
appeal in October 2012. Neither officer sought review of the
Commission’s decisions in state court. WMATA then discharged
the Officers for a second time.
Following these second terminations, the FOP filed
grievances on behalf of the Officers. Officer Spencer’s
grievance was denied at each of the first three steps of the
process outlined in the collective bargaining agreement, and the
FOP did not request arbitration. Officer Benton’s grievance was
denied at the first step of the process, and the FOP did not
appeal it further. The record does not reveal why the FOP did
not continue with the grievance process on behalf of the
Officers.
At some point after the Maryland Commission’s decisions,
the FOP did raise the issue of Officer Benton’s lack of
recertification with the same Board of Arbitration panel that
had ordered his reinstatement. 1 The Board concluded that it was
“not within its jurisdiction to determine whether the Grievant
meets the requirements to return to work as a WMATA Transit
Police Officer.” At oral argument before us, the FOP
acknowledged that it did not challenge this determination.
1
The record is unclear as to when, and in what procedural
posture, the FOP raised this issue with the Board. It is
similarly unclear whether the FOP argued before the Board that
Officer Benton’s second termination was not for just cause.
6
Instead, the FOP filed this action in federal court on
behalf of each officer, alleging that WMATA failed to comply
with the 2012 arbitration awards, in violation of both the WMATA
Compact and the collective bargaining agreement. The parties
filed cross-motions for summary judgment; the district court
granted the FOP’s motion and denied WMATA’s.
Finding no defect in the arbitration awards, and no
evidence that the awards were contrary to law or public policy,
the district court concluded that WMATA “failed to carry the
heavy burden necessary to displace the presumption that arbitral
awards are to be enforced as written.” Fraternal Order of
Police Metro Transit Police Labor Comm., Inc. v. WMATA, No. 12-
1387, 2013 WL 3159839, at *10 (E.D. Va. June 20, 2013) (“Summ.
J. Op.”) (internal quotation marks and citation omitted).
Accordingly, the court held that “WMATA breached both the
collective bargaining agreement and the Compact by failing to
comply with the decisions of the Arbitration Board.” Id. at *6.
The court ordered WMATA to reinstate Benton and Spencer as Metro
Transit Police officers and awarded them back pay and benefits. 2
2
The parties agreed before the district court that WMATA
would return the Officers to pay status and assign them
administrative responsibilities during the pendency of this
appeal. Fraternal Order of Police Metro Transit Police Labor
Comm., Inc. v. WMATA, No. 12-1387, 2014 WL 1317672, at *1 (E.D.
Va. Mar. 27, 2014). At oral argument before us, WMATA informed
the court that Officer Spencer retired in September of 2014.
(Continued)
7
The court subsequently denied WMATA’s motion for
reconsideration. Fraternal Order of Police Metro Transit Police
Labor Comm., Inc. v. WMATA, No. 12-1387, 2014 WL 1317672, at *1
(E.D. Va. Mar. 27, 2014) (“Recons. Op.”). WMATA then noted this
timely appeal.
II.
WMATA advances several arguments on appeal, but its
principal contention is that the district court erred in holding
that it failed to comply with the Board of Arbitration’s awards.
WMATA maintains that it complied with the awards by placing the
Officers on paid administrative leave pending their
recertification. It further contends that, in an action seeking
to enforce the arbitration awards, the FOP cannot challenge the
Officers’ second terminations, i.e., those resulting from the
Maryland Commission’s denial of recertification. Instead, WMATA
argues, the FOP needed to use the grievance procedure outlined
in the collective bargaining agreement to contest the second
terminations. We agree.
“We review a district court’s decision to grant summary
judgment de novo,” and we view “all facts and reasonable
The claims brought on his behalf are not moot, however, because
the disposition of this case could affect the district court’s
award of back pay.
8
inferences therefrom in the light most favorable to the
nonmoving party.” T–Mobile Ne. LLC v. City Council of Newport
News, 674 F.3d 380, 384–85 (4th Cir. 2012) (internal quotation
marks and citation omitted). Under the federal common law of
arbitration, which applies to labor disputes involving WMATA, a
court can decline to enforce an arbitration award only on narrow
grounds. See Office & Prof’l Emps. Int’l Union, Local 2 v.
WMATA, 724 F.2d 133, 139-40 (D.C. Cir. 1983). 3 We need not
examine any of those grounds here, however, because the question
in this case is not whether the arbitration awards are valid --
the parties do not dispute that the Board of Arbitration had the
power to order WMATA to reinstate the discharged officers and
that the awards were valid when issued. Rather, the question is
whether WMATA complied with the awards.
The FOP recognizes that WMATA initially complied with the
arbitration awards. For, at oral argument before us and before
the district court, the FOP acknowledged that placing the
Officers on paid administrative leave constituted at least
temporary reinstatement. The question, then, is whether
3
Those grounds include that the award was “arbitrary and
capricious” or not “sufficiently definite to allow enforcement.”
Office & Prof’l Emps. Int’l Union, 724 F.2d at 140. A court may
also decline to enforce an arbitration award if “the arbitrator
exceeded the scope of his jurisdiction” or if the award “is
contrary to law or explicit public policy.” Id. (internal
quotation marks and citation omitted).
9
terminating the Officers after the Maryland Commission denied
recertification constitutes non-compliance with the arbitration
awards.
Neither the parties nor the district court cite any legal
authority that speaks directly to this question. Two of our
sister circuits, however, have decided cases with similar
procedural histories -- i.e., where an employee has been
terminated, ordered reinstated by an arbitrator, and then
terminated again for an independent reason. The court in each
case held that the employee cannot challenge the second
termination through an action seeking enforcement of the
arbitration award.
In Chrysler Motors Corp. v. International Union, Allied
Industrial Workers, 2 F.3d 760 (7th Cir. 1993), the Seventh
Circuit upheld Chrysler’s decision to fire an employee shortly
after he had been reinstated pursuant to an arbitration award.
The employee had initially been discharged for a single act of
sexual harassment. Id. at 761. The arbitrator, however,
determined that the incident warranted only a suspension and
ordered Chrysler to reinstate the employee. Id. at 761-62.
During its investigation of the incident, however, Chrysler
learned that the employee had engaged in additional prior acts
of sexual harassment. Id. at 761. But the arbitrator did not
consider any of those prior acts in reaching his decision to
10
order reinstatement. Id. Chrysler therefore reinstated the
employee for one day and then terminated him again, citing the
additional acts of sexual harassment. Id. at 762.
In holding that Chrysler’s action did not violate the
arbitration award, the Seventh Circuit emphasized that
arbitration awards do not prevent an employer from taking future
disciplinary action when confronted with new facts. Id. at 763.
The court explained that if an arbitrator’s decision “does not
consider evidence against the employee discovered by the
employer after the discharge,” then the employer “is not
‘forever foreclose[d] . . . from using [the] evidence [acquired
after the discharge] as the basis for a [subsequent]
discharge.’” Id. (quoting United Paperworkers Int’l Union v.
Misco, 484 U.S. 29, 41 (1987)) (alterations in original).
Relying on the Seventh Circuit’s decision in Chrysler
Motors, the Third Circuit has also held that an employer can
discharge an employee, after reinstatement, based on facts not
considered by the arbitrator. United Food & Commercial Workers
Union Local 1776 v. Excel Corp., 470 F.3d 143, 146-49 (3d Cir.
2006). In United Food, two employees, Jose and Sandra Diaz, had
been suspended pending an investigation into allegations that
they attempted to steal from their employer. Id. at 144. A day
later, the employees were fired. Id. When the employees were
11
told they were being discharged, Jose Diaz allegedly attacked a
security guard. Id.The employees proceeded to challenge their terminations in
arbitration, and the arbitrator overturned the employer’s
decision and ordered reinstatement and back pay. Id. at 144-45.
The arbitrator made clear, however, that he had not considered
the allegations surrounding Jose Diaz’s attack on the security
guard in reaching his decision. Id. at 145. The employer
therefore reinstated Sandra Diaz, but informed Jose Diaz that he
was (again) terminated, effective from the date of his alleged
assault. Id. The Third Circuit held that the employer’s
actions did not violate the arbitration award. Id. at 144. The
court explained that, in light of Jose Diaz’s violent conduct,
the employer was “free to terminate the employee a second time
based on independent grounds, pending a second arbitration.”
Id. 4
4
In United Food, the court distinguished United
Steelworkers, District 36, Local 8249 v. Adbill Management
Corp., 754 F.2d 138, 140 (3d Cir. 1985)), where although a hotel
purported to comply with an arbitrator’s award to reinstate nine
maids, it immediately placed the maids on indefinite layoffs
because of “low occupancy.” Adbill held that the hotel’s action
conflicted with the language of the arbitration award, which
“clearly require[d]” returning the maids to actual duty. Id. at
142. United Food distinguished Adbill on the ground that there,
the employer’s “decision to reduce its workforce was made after
the issuance of the arbitral award,” while in the case before it
the basis for the “second termination occurred before the
arbitral decision.” United Food, 470 F.3d at 149 (emphasis in
(Continued)
12
Like the employers in Chrysler Motors and United Food,
WMATA relied on independent grounds that were never before the
arbitrators when they terminated Officers Spencer and Benton for
a second time. The Maryland Commission’s denial of the
Officers’ request for recertification created a new and
independent basis for deciding that Spencer and Benton could no
longer serve as MTPD officers. Firing a police officer for a
disciplinary infraction is distinct from firing an officer for
failing to obtain recertification. And as in Chrysler Motors
and United Food, the basis for the second termination was never
before the arbitrators. Nothing in the record suggests that the
Board of Arbitration considered, or was even aware of the
possibility, that the Maryland Commission would deny
recertification. We therefore hold that WMATA’s decision to
terminate the Officers for a second time, following the Maryland
Commission’s denial of recertification, did not violate the
earlier arbitration awards. 5
original). To the extent the holding in United Food rested on
this temporal distinction, we decline to adopt it. In our view,
truly independent grounds for terminating an employee can arise
before or after an arbitrator has heard the employee’s case.
That is, the independent grounds are genuinely outside the scope
of what was before the arbitrator.
5
Given the facts here, we need not decide precisely how
independent the reason for a second termination must be in order
to fall outside the scope of an action seeking to enforce an
(Continued)
13
We recognize that WMATA actively sought to influence the
Maryland Commission by writing letters strongly discouraging
recertification of the Officers. The district court noted that
in reviewing ten years of disciplinary actions, it found no
other case where the MTPD had employed “the type of strong,
negative rhetoric used by Chief Taborn in his letters to the
Maryland Commission concerning Benton and Spencer.” Recons.
Op., 2014 WL 1317672, at *4. The court determined that this
amounted to “strong evidence of WMATA’s intention to not comply
with the arbitration awards by creating a condition that it
could then use to justify not reinstating these officers.” Id.(emphasis added). And for this reason the court held that WMATA
had not complied with the arbitration awards.
WMATA’s involvement in the recertification process does add
an element to this case not present in either Chrysler Motors or
United Food. But whatever WMATA’s intentions, nothing in the
record permits a holding that WMATA’s actions violated the terms
of the arbitration awards. WMATA was permitted -- in fact,
obligated -- to forward to the Maryland Commission “any
arbitration award that orders reinstatement. Moreover, the FOP
has not claimed that WMATA’s reliance on the Maryland
Commission’s denial of reinstatement was pretextual.
Accordingly, we need not determine under what circumstances a
court could find that an allegedly independent reason was
actually pretextual.
14
derogatory information” about the Officers’ terminations. Md.
Code Regs. § 12.04.01.08(D)(2). To be sure, Chief Taborn was
particularly zealous in carrying out that duty in this instance
-- maybe to a fault. But the decision whether to recertify the
Officers belonged solely to the Commission, which was no rubber
stamp for WMATA’s wishes. To the contrary, the transcripts of
the Commission’s hearings indicate that the Commission exercised
independent and considered judgment in evaluating the
information WMATA supplied. In fact, two commissioners in
Officer Spencer’s case voted in favor of recertification.
Even if WMATA did provide “derogatory information” with the
express hope or intent that the Maryland Commission would not
recertify the Officers, we cannot conclude that WMATA exceeded
the bounds of permissible behavior under the arbitration awards.
The FOP has cited no authority that would permit us to reach
that conclusion. Instead, the FOP begins from the premise that
the arbitration awards prohibited WMATA’s conduct toward the
Officers and then proceeds to explain why the awards are valid.
But again, no party disputes that the awards were valid when
issued. By defending the validity of the arbitration awards at
great length, but failing to address the applicability of the
awards to the actions WMATA took after they were issued, the FOP
assumes away the central question in this case.
15
At best, the FOP has provided reasons for questioning
whether WMATA’s second termination of the Officers was for “just
cause.” The FOP might be right on that front. Although we hold
that there were independent grounds for terminating the Officers
a second time, and thus that the second terminations did not
violate the arbitration awards, we do not decide whether those
grounds were adequate under the collective bargaining agreement.
Nor could we; such a decision would be beyond our jurisdiction.
The WMATA Compact is clear that arbitration is the appropriate
method for resolving “any labor dispute,” including “the
interpretation or application of . . . collective bargaining
agreements and any grievance that may arise.” WMATA Compact
§ 66(c) (2009). Interpreting the “just cause” language of the
collective bargaining agreement falls squarely within this
provision.
Accordingly, the Officers’ grievances belong before the
Board of Arbitration, not a federal court. 6
6
Because we hold that the FOP cannot challenge WMATA’s
second termination of the Officers in this action seeking
enforcement of the arbitration awards, we decline to reach
WMATA’s alternate bases for reversal, except to note, as the
district court held, that WMATA does not have immunity from suit
here. See Summ. J. Op., 2013 WL 3159839, at *7-8. The FOP has
alleged a breach of its collective bargaining agreement with
WMATA, and WMATA enjoys no immunity from such suits. See Beebe
v. WMATA, 129 F.3d 1283, 1289 (D.C. Cir. 1997) (“Section 80 of
the Compact waives WMATA’s sovereign immunity for contractual
disputes.”).
16
III.
Our conclusion that WMATA did not violate the arbitration
awards does not mean we necessarily embrace WMATA’s behavior.
Like the district court, we are troubled by evidence that WMATA
handled these cases in a markedly different fashion from
previous employment disputes. See Recons. Op., 2014 WL 1317672,
at *4. Of course, there may be legitimate reasons for this
difference. In any event, our view of WMATA’s tactics does not
alter our conclusion that we lack authority to decide whether
these actions by WMATA breached the collective bargaining
agreement. The grievance procedure outlined in that agreement
provides the only proper forum for resolving the Officers’
claims.
For the foregoing reasons, the judgment of the district
court is
REVERSED.
17