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American Federation of State v. Duke University

United States District Court, M.D. North Carolina

September 6, 2019



          L. Patrick Auld, United States Magistrate Judge.

         This case comes before the Court on (1) “Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction [Fed. R. Civ. P. 12(b)(1)]” (Docket Entry 13 (brackets in original)) (the “Dismissal Motion”) filed by Duke University (the “Defendant” or “Duke”) and (2) “Plaintiff's Motion to Confirm and Enforce Arbitration Award, for Summary Judgment, and for Attorneys' Fees” (Docket Entry 15) (the “Confirmation Motion”) filed by the American Federation of State, County and Municipal Employees, Local 77 (the “Plaintiff” or the “Union”). For the reasons that follow, the Court should grant in part and deny in part both motions.


         On March 20, 2018, Plaintiff filed suit to “confirm and enforce [an] arbitration award issued by Arbitrator [Robert W.] Kilroy” (Docket Entry 1 at 6)[1] in December 2017 regarding Defendant's employment of Reginald Thorpe (“Mr. Thorpe”). (See generally Docket Entry 1 (the “Complaint”); see also Docket Entry 1-7 (the “Arbitration Award” or the “Award”).) In June 2018, Defendant filed an Answer, which maintained that “[t]he Complaint should be dismissed for lack of subject matter jurisdiction due to the doctrine of mootness. [Defendant] reinstated Mr. Thorpe reinstated [sic] on May 1, 2018, fully paid the amount directed by [the] Arbitrat[ion A]ward, and continues to employ Mr. Thorpe. There is no case or controversy to be decided by the Court and Plaintiff's claim is moot.” (Docket Entry 6 at 5.) Thereafter, Plaintiff filed the Confirmation Motion and Defendant filed the Dismissal Motion, each of which the other party opposes. (See Docket Entries 13, 15, 18, 20.) As relevant to the pending motions, the record reflects the following:

         For eight years prior to his discharge on October 20, 2016, Mr. Thorpe served as an Environmental Services Division Technician “whose duties consisted mostly of cleaning and waxing floors daily on several designated floors” of one of Defendant's hospital buildings (Docket Entry 1-7 at 1). (See id. at 2; see also Docket Entry 15-10, ¶ 1.) In connection with this employment, Mr. “Thorpe was . . . a member of the bargaining unit represented by [Plaintiff].” (Docket Entry 15-1, ¶ 3; accord Docket Entry 15-10, ¶ 6.) Plaintiff and Defendant “have a collective bargaining relationship, ” currently governed by a collective bargaining agreement (a “CBA”) that “went into effect on July 1, 2017.” (Docket Entry 17-1 at 2.)[2]

         On September 7, 2016, a sales clerk at a local gas station

reported to Durham Police[ that] an individual while making his purchase had clearly exhibited his penis to her. She was unable to identify this person. However, a few days later, the sales clerk reported to the detective handling the matter, the same unidentified individual appeared again, without any exhibition, and was dressed with a Duke University shirt. After making copies of the security surveillance tapes and confirming with Duke Police and personnel badges, [Mr. Thorpe] was identified and was charged with a violation of [North Carolina General Statute Section] 14-190.9 “Indecent Exposure” in case number 16CR58523 in Durham County District Court.


         “In early October 2016, [Defendant] told [Mr. Thorpe] to meet with two police officers” (Docket Entry 15-10, ¶ 2), Duke Police Officer Arthur Holland (“Officer Holland”) (see id., ¶ 14) “and Officer Buffy Jones from the Durham Police Department” (“Officer Jones”) (Docket Entry 15-3 at 7;[4] Docket Entry 15-1, ¶ 12; see also Docket Entry 15-10, ¶ 2). “The officers told [Mr. Thorpe] that [he] had been charged with indecent exposure based on an incident that they believed occurred at a Durham convenience store on September 7, 2016.” (Docket Entry 15-10, ¶ 2.) “The officers did not arrest [Mr. Thorpe], ” but “instead allowed [him] to report to the Durham Police Department on [his] own, which [he] did.” (Id., ¶ 3.) “On or around October 10, 2016, [Defendant] gave [Mr. Thorpe] a letter discussing the indecent exposure charge, and suspending [his] employment pending an investigation.” (Id., ¶ 4.)[5] On or before October 17, 2016, Mr. Thorpe entered into a deferred prosecution agreement with the Durham County District Attorney's Office. (See Docket Entry 15-2 at 1.)

         On October 20, 2016, Defendant issued Mr. Thorpe “a Notice of Disciplinary Action citing: ‘VIOLATION OF WORK RULES #13 Falsifying University records, including intentional failure to accurately record time records, or registering the time card of another employee without proper authorization, '” resulting in his discharge. (Docket Entry 1-7 at 2; see also Docket Entry 15-12 at 2 (the “Disciplinary Notice”).) The Disciplinary Notice incorporates a letter to Mr. Thorpe (see Docket Entry 15-12 at 2) that states, in relevant part:

This letter is to update [Mr. Thorpe] regarding [his] employment status with Duke University Hospital Environmental Services. On Monday, October 3, 2016, [Duke] w[as] made aware of [his] arrest and the charge for which [he] w[as] arrested: Indecent Exposure. Also on that date, [Duke] w[as] made aware that [Mr. Thorpe] had been trespassed by Duke University Police from all Duke University and Duke University Health System property except in the case of a medical emergency.
On October 10, 2016, a certified letter was mailed to [Mr. Thorpe] outlining [his] employment status with Environmental Services. Due to the serious nature of the charge against [him] and the uncertainty as to the length of time that may have been required to conclude the investigation, [Mr. Thorpe] w[as] suspended from active employment with pay pending investigation.
As part of the investigation process, [Mr. Thorpe] w[as] provided the opportunity to submit any information that [he] thought should be considered before a final decision was made in the matter. On October 12, 2016, [Mr. Thorpe] met with [a Duke employee] and [his] Union representative, Charles Gooch. The meeting was an opportunity for [Mr. Thorpe] to provide testimony to the incident that occurred on Wednesday, September 7, 2016 at approximately 7:40 pm at a BP Gas Station on University Avenue which led to [his] arrest and subsequent suspension with pay pending investigation. During the meeting, [Mr. Thorpe] elected not to provide any information concerning the incident in question.
As part of and during the course of [Duke's] investigation of the incident, it was determined [Mr. Thorpe] w[as] clocked in at work as a Floor Finisher at Duke University Hospital and had not received permission to leave work, nor did [he] clock out when [he] left the premises. This behavior constitutes falsification of time and is dischargeable with the first offense. Therefore, the decision has been made to terminate [his] employment effective today, Thursday, October 20, 2016 for violation of Work Rule 13: Falsification University Records, including intentional failure to accurately record time records.

(Id. at 1 (emphasis in original); see also Docket Entry 1-7 at 2.)

         Plaintiff filed “[a] timely grievance . . . contesting the matter of discharge and the misapplication of Work Rules.” (Docket Entry 1-7 at 2.) The grievance (1) contends that Defendant violated “Article 13 Disciplinary Action, ” (2) identifies the relevant issue as “[w]hether [Mr. Thorpe] was disciplined for just cause - did [Mr. Thorpe] violate Duke University Work Rule #13?, ” and (3) seeks as a remedy that “[Mr. Thorpe] is reinstated with back pay, disciplinary action is removed from the file and [Mr. Thorpe] is otherwise made whole including primary work, unit of assignment and shift.” (Docket Entry 1-5 at 1.) At the grievance hearing, Plaintiff “contend[ed] that [Defendant] violated Article(s) 13, Disciplinary Action.” (Docket Entry 1-6 at 1.) The decision on the grievance hearing identified the relevant issue as follows: Mr. Thorpe “was discharged for violation of Work Rule #13 - Falsifying University records[] . . . . [Plaintiff] questioned whether [Mr. Thorpe] was disciplined for cause, whether [Mr. Thorpe] violated Duke University Work Rule #13.” (Id.) At the hearing, Defendant's witness “shared that there was an incident that occurred offsite on [September 7, 2016], which led management to learn that Mr. Thorpe was not in the workplace when he should have been[;]” however, “[b]oth management and [Plaintiff] declined to discuss the specifics of the incident.” (Id. at 2.)

         Defendant denied the grievance on January 24, 2017. (Docket Entry 15-1, ¶ 6.) Six days later, the Durham County District Attorney's Office dismissed the indecent exposure charge against Mr. Thorpe. (See Docket Entry 1-7 at 5; Docket Entry 15-2 at 1.) Plaintiff pursued the grievance to arbitration (Docket Entry 15-1, ¶ 6; see generally Docket Entry 1-7), which the parties conducted before Arbitrator Kilroy on November 9, 2017 (see Docket Entry 1-7 at 1).

         Defendant called Mr. Thorpe as its first witness at the arbitration. (Docket Entry 15-10, ¶ 13.) “[Defendant] asked [him] if [he] exposed [him]self in the convenience store. [He] denied that [he] exposed [him]self because [he] did not expose [him]self. [Defendant's] attorney questioned [him] extensively, under oath, about details surrounding the alleged incident of indecent exposure.” (Id.; see also Docket Entry 15-15, ¶ 4 (“At the arbitration, [Defendant's] attorney questioned Mr. Thorpe extensively about the alleged incident of indecent exposure on September 7, 2016.”).)

         Defendant then called Officer Holland, who testified regarding his meeting with Mr. Thorpe in October 2016 “and the circumstances leading up to [Mr. Thorpe's] initial suspension, including how he came to learn about the criminal charges.” (Docket Entry 15-10, ¶ 14.) Officer Holland also testified “about his conversations with a Durham police officer about the criminal investigation” (Docket Entry 15-15, ¶ 5), explaining that “he never spoke to the gas station attendant, and that he instead relied on what Officer Jones told him the attendant told her” (Docket Entry 15-3 at 14). During Officer Holland's testimony, Defendant played a surveillance video from the gas station depicting “the September 7, 2016 incident” (Docket Entry 15-10, ¶ 11), pausing the video “periodically [to] ask[ Officer] Holland questions about what it showed.” (Id., ¶ 15.)[6] Officer Holland testified that he believed the video showed Mr. Thorpe exposing himself, “discuss[ing] specific things he found incriminating, including what he believed were furtive movements [Mr. Thorpe] was making and the fact that he believed [Mr. Thorpe] moved bags on the counter in order to ‘open a line of sight' for [the] exposure.” (Id.)[7] Officer Holland further testified that Mr. Thorpe admitted exposing himself in their first meeting. (See id.)

         Plaintiff also called Mr. Thorpe as its first witness. (See id., ¶ 16.) Mr. Thorpe “denied having ever admitted to exposing [him]self. [He] never admitted to exposing [him]self because [he] did not expose [him]self.” (Id.) Mr. Thorpe also “testified about how the indecent exposure charge was voluntarily dismissed by the State, ” and Plaintiff entered the voluntary dismissal into evidence. (Id.) Defendant's attorney cross-examined Mr. Thorpe, asking “questions about [(1)] the alleged incident of indecent exposure, ” (2) “what the surveillance video had shown, ” and (3) whether Mr. Thorpe exposed himself, which he “again denied.” (Id., ¶ 17.) Plaintiff's chief steward and one of Mr. Thorpe's former coworkers also testified at the arbitration, respectively denying (1) knowledge of any publicity regarding the criminal allegations or of any coworkers who preferred not to work with Mr. Thorpe due to the allegations and (2) objection to working with Mr. Thorpe in light of the criminal charge. (See Docket Entry 15-1, ¶ 9; see also Docket Entry 15-15, ¶ 8.)

         After the evidence closed, Plaintiff and Defendant “agreed to provide written arguments to the arbitrator by December 8, 2017.” (Docket Entry 15-1, ¶ 11.) Defendant's post-arbitration brief frames the issue presented as: “Did [Defendant] discharge [Mr.] Thorpe for just cause?, ” and specifies as a relevant CBA provision Article 13, which states that “[n]o employee will be disciplined without just cause.” (Docket Entry 15-4 at 2.) It further identifies Work Rule 13 as the only relevant Work Rule. (See id.) Defendant's post-arbitration brief relies on the alleged indecent exposure on September 7, 2016, in two respects. First, it maintains that this alleged indecent helps prove that Mr. Thorpe exceeded his allotted thirty-minute lunch break. (See, e.g., id. at 7 (“[E]ven if he left work at 7:30 pm to begin his break, as he claimed, there was simply no way for him to be back working by 8 pm and carry out all the acts, and illegal acts, he now readily admits occurred . . . .”).) Second, Defendant's post-arbitration brief contends that the alleged exposure motivated the charged falsification, on the theory that Mr. Thorpe wished to create an alibi for the time in question. (See, e.g., id. at 6-7 (“His decision to submit a false time card was an intentional calculated effort to create an alibi for his whereabouts in the event someone recognized him at the BP station.”).) In sum, Defendant post-arbitration brief asserts:

In this case, the discharge should be clearly upheld, not only due to the clear time card falsification, but also because of the intentional nature of the misconduct. Later that pay period, Mr. Thorpe alerted his supervisor to alter his time records on two days to make his time correct. He obviously knew the proper method to correct inaccurate time records and admitted as much.
Duke has proven that Mr. Thorpe secretly left work for over 30 minutes but submitted a time record to falsely indicate he worked during the time of his criminal activity. Mr. Thorpe's candid admission that such conduct violates Work Rule 13 makes this an easy case to uphold the termination for just cause.
Based on the foregoing, it is clear that the termination of [Mr.] Thorpe was supported by just cause and this grievance should be denied.

(Id. at 8 (citation and heading omitted).)

         In turn, Plaintiff's post-arbitration brief states that “[t]he issue is whether [Mr. Thorpe] was terminated for just cause, and, if not, what the remedy shall be.” (Docket Entry 15-3 at 3.) It likewise identifies Article 13 as a relevant CBA provision and Rule 13 as a relevant Work Rule (id. at 4, 5), along with Rule 3 (“failure to report back to the work station”) and Rule 15 (regarding commission of crimes) (id. at 5). Plaintiff's post-arbitration brief maintains that Defendant failed to justify its termination of Mr. Thorpe for violating Rule 13. (See id. at 19-27.) It further argues that Defendant could not justify Mr. Thorpe's discharge on the basis “of his alleged criminal conduct” (id. at 28) for a couple of reasons. To begin, the relevant “CBA specifically requires that ‘[t]he subject of the disciplinary action as stated at the time of issuance to the employee shall constitute the sole and entire subject matter of the disciplinary action'” (id. (brackets in original)), and “[h]ere Duke has never argued that Mr. Thorpe was terminated because of his alleged criminal conduct, and has never argued that reinstatement is not possible because of the dismissed misdemeanor charge” (id.; see also id. (“Mr. Thorpe's termination notice stated that he was terminated for allegedly falsifying records”)). In addition, Plaintiff's post-arbitration brief contends, “[i]f Duke wanted to discipline Mr. Thorpe for the alleged misconduct giving rise to the criminal charge, it would have charged him under Work[] Rule 15” and “also should have explained its decision in light of Personnel Policy D-20, ” which “provid[es] guidance for ‘Actions on Employee Arrest.'” (Id. at 29.)

         Finally, Plaintiff's post-arbitration brief argues that Mr. Thorpe's alleged indecent exposure could not independently justify his discharge. (See id. at 29-32.) In support of this contention, Plaintiff maintains that “[t]here are well-defined parameters for when arrests for off-duty misconduct can support an employee's termination. The general rule is that an employer cannot discipline an employee for off-duty conduct unless the conduct (1) harms the employer's business, (2) adversely affects the employee's ability to perform his or her job, or (3) leads other employees to refuse to work with the offender.” (Id. at 29 (internal quotation marks omitted).) Plaintiff maintained that Defendant did not satisfy this test, in part because it “failed to prove Mr. Thorpe actually engaged in the misconduct” (id. at 30), and, in any event, “[t]here [wa]s no evidence the dismissed misdemeanor had a demonstrable effect on Duke's business” (id. at 31), Mr. Thorpe's ability to perform his job, or other employees' willingness to work with him. (See id. at 29-32.)

         Plaintiff's post-arbitration brief concludes:

If Duke wished to terminate Mr. Thorpe because of the criminal allegation, it should have notified him of that fact. It should have allowed the Union and Mr. Thorpe to defend against its position. It should have sought to justify Mr. Thorpe's termination under its relevant workplace rules and policies applicable to criminal charges. And it should have been required to prove that the nature of the criminal charge justified summary termination under the principles of just cause. It should not have fabricated a non-existent rule about clocking out for lunch breaks, and claimed that violating the non-existent rule amounted to falsifying records under a different workplace rule that allowed for immediate termination.
“The union's real interest in disciplinary matters is fairness.” Duke has never claimed Mr. Thorpe should be disciplined for his misdemeanor charge or the alleged misconduct underlying the charge. Instead, it claimed it actually terminated him for violating a non-existent workplace rule which, incidentally, required it to present evidence related to the underlying criminal dispute.
Duke's position is an affront to the principles of just cause. Mr. Thorpe was fired for falsifying records. The evidence shows he did not falsify any record. His dismissed misdemeanor charge should not cloud this straightforward issue. Mr. Thorpe should be reinstated to his position and awarded full back pay.
For the foregoing reasons, the Union respectfully requests that the Union's grievance be sustained and that Mr. Thorpe be reinstated to his position with full back pay. The Union requests that the Arbitrator retain jurisdiction for a reasonable period to allow the parties to calculate the value of any back pay to which Mr. Thorpe is entitled.

(Id. at 32-33 (citation and heading omitted).)

         On December 20, 2017, Arbitrator Kilroy issued the Arbitration Award. (See Docket Entry 1-7 at 6.) The Arbitration Award commences with certain factual findings, including that Mr. Thorpe testified that he “stopped at a local gas station” during his lunch break on the day in question (id. at 1) and, “that same evening, the sales clerk at the gas station reported to Durham Police” that an unknown individual had exposed himself to her “while making his purchase” (id. at 2). Next, the Arbitration Award notes that officials subsequently identified Mr. Thorpe as that individual and charged him with indecent exposure. (See id. at 2.) For “applicable contractual provisions, ” the Arbitration Award identifies Work Rules 3, 13, and 15, as well as Article 5, which specifies, in part, that Defendant possesses “the right to . . . suspend, discipline and discharge employees for cause.” (Id. at 3 (emphasis and all-cap font omitted).) It then identifies the relevant issue as: “Was there just cause to discharge [Mr. Thorpe]? If not, what shall the remedy be?” (Id. at 4.)

         Thereafter, “[b]ased on the evidence, the arguments of the parties and the [CBA, ] the Arbitrator f[ou]nd[] no just cause to discharge [Mr. Thorpe] for a violation of Work Rule 13.” (Id.) As to this conclusion, the Arbitration Award explains:

The Arbitrator draws his jurisdiction and authority from the four corners of the [CBA]. He does not sit to disperse his own brand of justice. Additionally, the Arbitrator may not legislate or fill-in missing gaps in the interpretation and application of the [CBA] or work rules, he is limited by the written words. The Arbitrator's function is to weigh the evidence of the alleged violation of the work rule.
[Defendant's] reliance upon Work Rule 13 to discharge [Mr. Thorpe] rests upon attenuated reeds, not solid support. The Arbitrator understands and appreciates the concern of [Defendant] to uphold and maintain its sterling reputation and public image. The Arbitrator is conscious of the disparagement to its reputation to have and hold an employee charged as [Mr. Thorpe] with a particularly unpleasant and distasteful crime. However, these circumstances are not sufficient in itself to ignore [Mr. Thorpe's] rights under the [CBA]. Finally, the Durham County District Attorney chose to enter into a Deferred Prosecution in the matter pursuant to [North Carolina General Statute Section] 15A-1341(a1) upon [Mr. Thorpe's] plea of guilty. Public records in the office of Archie L. Smith III, Clerk of Superior Court, Durham County show the matter was dismissed on January 30[, ]2017 upon [Mr. Thorpe's] completion of conditions, fine and costs.

(Id. at 5 (citations omitted).)[8]

         The Arbitration Award then concludes:

         Finally, as to [Mr. Thorpe's] violation of Work Rule 13, there is no evidence that [Mr. Thorpe] falsified a University record and or intentionally failed to accurately record time. He swiped in at 15:06 and swiped out at 23:57 for 8.4 hours pay. The[r]e is no evidence of deceit or intent to get financial gain. According to Merriam Webster Dictionary, the definition of RECORD is:

1. a(1): to set down in writing: furnish written evidence of (2): to deposit an authentic official copy of

• record a deed b: to state for or as if for the record

• voted in favor but recorded certain reservations c(1): to register permanently by mechanical means

• earthquakes recorded by a seismograph


• the thermometer recorded 90°[]

2.: to give evidence of
3.: to cause (sound, visual images, data, etc.) to be registered on something (such as a disc or magnetic tape) ...

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