Opinion
Civil Action No. DKC 2000-2574
August 30, 2001
MEMORANDUM OPINION
Pending before the court and ready for resolution in this employment discrimination retaliation action is a motion to dismiss by Defendant Montgomery County Government and cross motions for summary judgment. Plaintiff, Kenneth John Scott, alleges that Defendant retaliated against him for filing a complaint with the Equal Employment Opportunity Commission ("EEOC") in violation of the Americans with Disabilities Act, 42 U.S.C. § 12100, et seq. ("ADA"). Defendant, Montgomery County Government, asserts that Plaintiff has failed to state a claim for retaliation and moves to dismiss, or, in the alternative, for summary judgment. Plaintiff moves for summary judgment on the claim of retaliation. No hearing is deemed necessary and the court now rules pursuant to Local Rule 105.6. For the reasons that follow, the court shall GRANT Defendant's motion for dismissal and DENY Plaintiff's cross motion.
I. Background
The following facts are undisputed or presented in the light most favorable to the Plaintiff. Plaintiff Kenneth Scott was employed as a part-time Messenger/Clerk with the Montgomery County Department of Liquor Control. Scott was a member of the Municipal and County Government Employees Organization, United Food and Commercial Workers, Local 1994, AFL-CIO. His employment was subject to the collective bargaining agreement (CBA) between this Union and Montgomery County Government.
On December 1, 1998, Scott received a notice to terminate his employment from Montgomery County. In response to that notice, his union filed grievances on Scott's behalf on December 21, 1998 and January 12, 1999. After filing the grievance on January 12, and pursuant to the CBA, Scott appealed directly to Step 3 of the grievance process. On March 11, 1999, the grievance was denied at Step 3. Scott, through his Union, invoked arbitration pursuant to Article 11 of the CBA on March 29, 1999.
Scott filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") on April 15, 1999, alleging Montgomery County failed to accommodate a serious health condition. See Scott v. Montgomery County Government, DKC 2000-91. On May 6, 1999, Scott's union attorney, Mary Kay Canarte, was notified that Montgomery County refused to proceed with the arbitration pursuant to Article 11 of the CBA, due to the fact that Scott had filed a charge against Montgomery County with the EEOC. Article 38.3 of the CBA states that "if an alleged violation is pursued by a grievant in any statutory forum, such as a[n] . . . administrative agency, the violation shall not be subject of a grievance under this Agreement." Pl. Opp. To Def. Mot. to Dismiss, Ex. A at 39. In order to proceed with his arbitration with Montgomery County, Scott withdrew his charge at the EEOC on May 17, 1999. Scott later submitted a charge at the EEOC containing the same discrimination allegations he had filed on April 15 and filed a second charge of discrimination alleging retaliation, based on the County's refusal to proceed with arbitration, on July 27, 1999.
On February 1, 2000, the EEOC found that Montgomery County committed an act of retaliation against Scott. Conciliation by the EEOC in this matter was unsuccessful and a Right to Sue letter was issued June 1, 2000. Following the EEOC's determination of retaliation, Montgomery County participated in the arbitration of Scott's grievance. The arbitration was held on June 15, 16, and 27, 2000.
The arbitrator ruled in favor of Montgomery County on August 2, 2000, finding that the County had complied with the CBA and had sustained its burden to prove that Scott's termination was appropriate. The arbitrator's decision is final and binding on all parties. Following the hearing, the Disability Arbitration Board placed Scott on "temporary disability".
Following the binding arbitration decision, Scott continued to pursue his retaliation claim against Montgomery County for their withdrawal from the arbitration process and filed this complaint on August 24, 2000.
II. Standard of Review
A court reviewing a complaint in light of a Rule 12(b)(6) motion accepts all well-pled allegations of the complaint as true and construes the facts and reasonable inferences derived therefrom in the light most favorable to the plaintiff. Ibarra v. United States, 120 F.3d 472, 473 (4th Cir. 1997). Such a motion ought not be granted unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The court, however, need not accept unsupported legal allegations, Revene v. Charles County Comm'rs, 882 F.2d 870, 873 (4th Cir. 1989), or conclusory factual allegations devoid of any reference to actual events. United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979).
III. Analysis
Plaintiff Scott's claim of retaliation for filing a charge of discrimination with the EEOC is moot because there is no longer a case or controversy under Article III of the Constitution. All or part of a case is moot when events make it "absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 189 (2000) (citing United States v. Concentrated Phosphate Export Assn., 393 U.S. 199, 203 (1968)). Jurisdiction
may abate if the case becomes moot because 1) it can be said with assurance that "there is no reasonable expectation . . ." that the alleged violation will recur, and 2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation. When both conditions are satisfied . . . the case is moot because neither party has a legally cognizable interest in the final determination of the underlying questions of fact and law.
County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979) (internal citations omitted).
A. Recurrence
A defendant claiming that compliance moots a case bears the formidable burden of showing that it is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur. Friends, 528 U.S. at 708; see also Adarand Constructors, Inc. v. Slater, 528 U.S. 216, 222 (2000) (citing U.S. v. Concentrated Phosphate Export Assn., Inc., 393 U.S. at 203 (1968)). Nonetheless, Montgomery County has clearly met the burden of mootness on this record.
Scott alleged at the EEOC that Montgomery County retaliated against him for filing his EEOC charge of discrimination by refusing to continue the arbitration required by the CBA to process his grievance. It is undisputed that the EEOC found that Montgomery County did retaliate against Scott by refusing to proceed with the CBA-required arbitration after Scott filed his charge with the EEOC. However, after the EEOC ruled against Montgomery County, it is also undisputed that the County proceeded with the arbitration, which held that Scott's termination was appropriate. Def. Memo. In Supp. of Def.'s Mot. to Dismiss, Decision of Arbitrator Hockenberry, 8/2/00, Ex. 9 at 15. The sole retaliatory act alleged by plaintiff was the County's refusal to proceed with arbitration. Thus, the County's actual participation in the arbitration in the summer of 2000 assures Scott that the violation of refusal to proceed with arbitration will not recur. Therefore, because Scott has received the relief he sought when he filed his charge of retaliation, the first prong of the mootness test is satisfied; there is no reasonable expectation that the violation of retaliation will recur. Davis, 440 U.S. at 631.
Scott argues that a recurrence is not unlikely because Montgomery County did not remove the offending terms from the CBA, stating that arbitration is the grievant's sole remedy, that caused the County to withdraw from arbitration in May 1999. This is true, but since Scott is no longer an active employee of Montgomery County and is no longer a member of the United Food and Commercial Workers Union, Local 1994, the CBA, including this Article, no longer applies to him. As a result, the alleged retaliation by terminating arbitration will not recur with respect to Plaintiff. Montgomery County has clearly met the first prong of the mootness test set forth in Davis because it proceeded with the arbitration which prompted the retaliation charge and Scott is no longer subject to Article 11 of the CBA between the union and Montgomery County. Id.
B. Eradication of Effects
The second prong of the test for mootness outlined by the Supreme Court in Davis requires that "interim relief or events have completely and irrevocably eradicated the effects of the alleged violation." Davis, 440 U.S. at 631. Courts in this District have interpreted this test to mean that "[i]mplicit in the second prong of the Davis test is the requirement that the relief demanded will actually cure the lingering effects of the alleged violation." Baltimore Neighborhoods, Inc. v. LOB, Inc., 92 F. Supp.2d 456, 462 (D.Md. 2000) (internal citation omitted).
Courts are statutorily compelled to enforce and uphold arbitrator's opinions under the Federal Arbitration Act ("FAA"), 9 U.S.C. § 1-16, which was enacted over seventy-five years ago as a response to the hostility by United States courts to arbitration agreements. Here, because the arbitration took place as desired by the Plaintiff and the arbitrator's decision is final and binding, the court is not able to grant 1) backpay as of January 13, 1999; 2) reinstatement into his previous position or placement into another position with the same grade and pay; 3) punitive damages; or 4) attorney's fees and court costs. Pl. Compl. at 2. The arbitrator held in his decision of August 2, 2000 that the County had sustained its burden and that the termination of Scott was appropriate. Def. Memo. In Supp. of Def.'s Mot. to Dismiss, Decision of Arbitrator Hockenberry 8/2/00, Ex. 9 at 15. Therefore the issues of backpay, reinstatement, punitive damages, and attorney's fees and court costs have already been properly decided by the arbitrator and it is not appropriate for the court to review them in this complaint for retaliation. There is no dispute as to whether the arbitration is final and binding so, therefore, the issues which were settled through that arbitration cannot be litigated again here.
The FAA has long been respected by the courts. A recent decision, Circuit City Stores, Inc. v. Adams, expanded its breadth to include every employment contract with an arbitration clause with the exception of transportation contracts and reemphasized the "real benefits to the enforcement of arbitration provisions." Circuit City Stores, Inc. v. Adams, 121 S.Ct. 1302, 1313 (2001).
The only relief sought which has not been resolved through arbitration is "[d]eclaratory relief stating Defendant violated Plaintiff's rights under the ADA." Pl. Compl. at 2. It is undisputed that in certain cases declaratory relief alone can provide relief. Baltimore Neighborhoods, Inc. v. LOB, Inc., 92 F. Supp.2d 456, 462 (D.Md. 2000). However, this has been done in situations where the court is trying to fashion some form of meaningful relief in circumstances where there is still an existing injury, such as an affront to privacy. See Church of Scientology of California v. U.S., 506 U.S. 9, 13 (1992) (holding that the IRS must return copies of materials obtained by unlawful summons). Here Scott has already been granted the relief he was seeking-arbitration of his grievance. In this case, a declaratory judgment would be purely advisory, as it was in Baltimore Neighborhoods, since Scott pursued his ADA claim in a separate complaint, as well as in the arbitration he was granted after Montgomery County was found to have retaliated against Scott. Montgomery County has met the second prong of the Davis test because conducting the arbitration eradicated the effects of refusing to participate in the arbitration.
IV. Conclusion
Montgomery County has met its burden under Davis of proving that the violation will not recur and that the relief of proceeding with the arbitration irrevocably eradicated the effects of not proceeding with the arbitration. Accordingly, Defendant's motion to dismiss is granted and Plaintiff's motion for summary judgment is denied.
A separate Order will be entered.
ORDER
For the reasons stated in the foregoing Memorandum Opinion, IT IS this ___ day of August, 2001, by the United States District Court for the District of Maryland, ORDERED that:
1. Defendant's Motion to Dismiss BE, and the same hereby IS, GRANTED;
2. The Motion for Summary judgment by Plaintiff Kenneth Scott Jones BE, and the same hereby IS, DENIED;
3. The Complaint BE, and the same hereby IS, DISMISSED as MOOT; and
4. The clerk will transmit copies of the Memorandum Opinion and this Order to counsel for the parties and CLOSE this case.