The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
AMALGAMATED TRANSIT CIVIL ACTION
UNION ET AL.
VERSUS No. 21-1790
NEW ORLEANS REGIONAL SECTION I
TRANSIT AUTHORITY ET AL.
ORDER & REASONS
Before the Court is a motion1 to dismiss pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure or, alternatively, to stay proceedings pending
arbitration, filed by Regional Transit Authority of New Orleans (“RTA”) and Alex
Wiggins (“Wiggins”) (collectively, “defendants”). Valerie Jefferson (“Jefferson”) and
Amalgamated Transit Union (“ATU”) (collectively, “plaintiffs”) oppose2 the motion.
Defendants filed replies3 in support of their motion.
In their memoranda, all parties made extensive reference to a collective
bargaining agreement (“CBA”),4 which was attached to the motion to dismiss, but
which was not referenced in, nor attached to, plaintiff’s complaint. Accordingly, on
April 20, 2022, the Court advised the parties that, pursuant to Rule 12(d), the motion
would be converted into a motion for summary judgment, limited to the issue of
arbitrability.5 The Court also provided the parties with an opportunity to file any
1 R. Doc. No. 10.
2 R. Doc. No. 17.
3 R. Doc. Nos. 20, 23.
4 R. Doc. No. 10-3.
5 R. Doc. No. 25. Rule 12(d) provides that “[i]f, on a motion under Rule 12(b)(6) or
12(c), matters outside the pleadings are presented to and not excluded by the court,
additional materials relevant to the resolution of the motion.6 The parties declined to
submit additional materials.7
For the reasons that follow, the Court will deny the motion.
I. BACKGROUND
The facts of the instant action, as alleged in the complaint, are as follows.8
Wiggins is the chief executive officer of RTA, which is a public transit authority.9
ATU is a labor union that represents individuals employed by RTA.10 Jefferson was
an employee of RTA until she was terminated in September 2021.11 She was elected
president of ATU Local 1560 in 2019 and continues to hold that office.12 As the chief
officer and business agent of ATU Local 1560, Jefferson advocates for “better wages,
hours, and working conditions” on behalf of the ATU members who work for RTA.13
the motion must be treated as one for summary judgment under Rule 56. All parties
must be given a reasonable opportunity to present all the material that is pertinent
to the motion.” See also, e.g., 4D Life LLC v. Barrington Packaging Sys. Grp., Inc.,
No. 20-1458, 2021 WL 134530, at *2 (E.D. La. Jan. 14, 2021) (Vance, J.) (converting
Rule 12(b)(6) motion, which raised the issue of arbitrability, into a motion for
summary judgment, pursuant to Rule 12(d)); VP, LLC v. Newmar Corp., No. 11-2813,
2012 WL 6201828, at *3 (E.D. La. Dec. 12, 2012) (Morgan, J.) (same).
6 R. Doc. No. 25.
7 R. Doc. Nos. 26, 27.
8 To the extent that this section recounts the complaint’s factual allegations
pertaining to issues other than arbitrability, it does so for the sole purpose of
providing the reader with general background information. Whether the plaintiffs’
factual allegations pertaining to issues other than arbitrability are true is a matter
to be addressed in subsequent motions for summary judgment or at trial.
9 R. Doc. No. 1 ¶¶ 4–5.
10 Id. ¶ 2.
11 Id.
12 Id. ¶ 9.
13 Id. ¶¶ 11–12.
Plaintiffs allege that Jefferson has engaged in public speech and association critical
of RTA, including throughout 2021.14
On September 8, 2021, Jefferson was acting in her capacity as union
representative when she learned that RTA was apparently refusing to comply with a
recent agreement regarding emergency pay.15 She went to Wiggins’ office to inquire
about the issue.16 Wiggins confirmed that an individual who had been involved in
negotiating the emergency pay agreement had been fired.17 Jefferson understood this
to be an indication that RTA intended to renege on the emergency pay agreement.18
Jefferson exited Wiggins’ office, stating, “Well, I know what kind of person I’m dealing
with. It’s on. I need to talk with my executive board.”19
Less than an hour after this interaction, Jefferson was presented with a notice
stating that she was being terminated because she allegedly told Wiggins, “[i]t’s on
now bitch,” in a “threatening manner.”20 Plaintiffs claim that this termination was
retaliation for her protected speech and association, in violation of 42 U.S.C. § 1983.21
Plaintiffs further assert that defendants have caused irreparable injury to Jefferson,
in that the firing of Jefferson is intended to have a chilling effect on her advocacy on
14 Id. ¶ 14–16.
15 Id. ¶¶ 31–48.
16 Id. ¶ 43.
17 Id. ¶¶ 38–45.
18 Id. ¶ 46.
19 Id. ¶¶ 46–47.
20 Id. ¶¶ 49–55.
21 Id. ¶ 77.
behalf of ATU members, in furtherance of their voluntary association.22 In addition,
plaintiffs claim that defendants’ actions violated the First Amendment rights of ATU
Local 1560 and its members.23
Defendants assert that, pursuant to the CBA between ATU Local 1560 and
RTA,24 all of plaintiffs’ claims are subject to mandatory grievance procedures and
arbitration.25 As such, defendants submit that the Court must dismiss plaintiffs’
claims or, alternatively, stay these proceedings pending arbitration.26 Plaintiffs
respond that Supreme Court and Fifth Circuit precedent dictates that plaintiffs must
be permitted to bring their claims in federal court because the CBA does not clearly
and unmistakably state that § 1983 claims must be submitted to arbitration.27
II. STANDARD OF LAW
Rule 56 of the Federal Rules of Civil Procedure provides that the court shall
grant summary judgment in favor of the moving party “if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” In determining whether there is a genuine dispute of
material fact, the court may review the pleadings, the discovery and disclosure
materials on file, and any submitted affidavits. See Fed. R. Civ. P. 56.
22 Id. ¶ 78.
23 Id. ¶ 77.
24 The CBA is between ATU Local 1560 and Transdev Transportation Services.
R. Doc. No. 10-3, at 1. Defendants state, and plaintiffs do not contest, that RTA is the
successor entity to Transdev Transportation Services. R. Doc. No. 10-1, at 10 n.17.
25 R. Doc. No. 10-1, at 1–2.
26 Id. at 2.
27 R. Doc. No. 17, at 2–6.
The Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), governs the
enforceability of arbitration agreements in federal court.28 “The Act provides two
parallel devices for enforcing an arbitration agreement: a stay of litigation in any case
raising a dispute referable to arbitration, 9 U.S.C. § 3, and an affirmative order to
engage in arbitration, § 4.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460
U.S. 1, 22 (1983). Specifically, Section 3 provides:
If any suit or proceeding be brought . . . upon any issue referable to
arbitration under an agreement in writing for such arbitration, the court
in which such suit is pending, upon being satisfied that the issue
involved in such suit or proceeding is referable to arbitration under such
an agreement, shall on application of one of the parties stay the trial of
the action until such arbitration has been had in accordance with the
terms of the agreement[.]
9 U.S.C. § 3.
III. LAW AND ANALYSIS
No dispute of material fact exists for the purpose of the instant motion: both
parties agree that the CBA between RTA and ATU Local 1560 is a valid agreement.
Thus, the Court must determine whether defendants have established that they are
entitled to summary judgment as a matter of law.
28 As defendants note, R. Doc. No. 10-1, at 8, “Louisiana courts look to federal law in
interpreting the Louisiana Arbitration Law because it is virtually identical to the
United States Arbitration Act[.]” Badgerow v. Walters, 975 F.3d 469, 472 n.2 (5th Cir.
2020), rev’d on other grounds, --- S.Ct. ---, 2022 WL 959675 (2022) (quoting Chevron
Phillips Chem. Co., LP v. Sulzer Chemtech USA, Inc., 831 So. 2d 474, 476 (La. App.
2002)). Accordingly, to the extent that the Louisiana Binding Arbitration Law
(“LBAL”), La. R.S. 9:4201–4217, applies in the instant matter, “determinations
regarding the viability and scope of arbitration clauses would be the same under
either [LBAL or the FAA].” Lafleur v. L. Offs. of Anthony G. Buzbee, P.C., 960 So. 2d
105, 111 (La. App. 1 Cir. Mar. 23, 2007).
“Arbitration is strictly ‘a matter of consent,’ and thus ‘is a way to resolve those
disputes—but only those disputes—that the parties have agreed to submit to
arbitration.’” Gallagher v. Vokey, 860 F. App’x 354, 356 (5th Cir. 2021) (emphasis in
original) (quoting Granite Rock Co. v. Int’l Bhd. of Teamsters, 561 U.S. 287, 299
(2010)). The Fifth Circuit conducts a two-step inquiry when determining whether
claims are referable to arbitration. First, “the court must determine whether the
parties agreed to arbitrate the dispute.” Polyflow, LLC v. Specialty RTP, LLC, 993
F.3d 295, 302 (5th Cir. 2021) (quoting Will-Drill Res. v. Samson Res., 352 F.3d 211,
214 (5th Cir. 2003)). This inquiry entails two considerations: “(1) whether there is a
valid agreement to arbitrate between the parties; and (2) whether the dispute in
question falls within the scope of that arbitration agreement.” Id. Second, if the court
finds that the parties agreed to arbitrate, the court “must consider whether any
federal statute or policy renders the claims nonarbitrable.” Id.29
Federal law governs the interpretation of collective bargaining
agreements. Savant v. APM Terminals, 776 F.3d 285, 289 (5th Cir. 2014) (citing Int’l
Ass’n of Machinists & Aerospace Workers v. Masonite Corp., 122 F.3d 228, 231 (5th
Cir. 1997); Textile Workers Union v. Lincoln Mills of Ala., 353 U.S. 448, 456–57
(1957)). Nevertheless, “courts may draw upon state rules of contractual
29 The Fifth Circuit applies this arbitrability inquiry in several procedural postures,
including when considering motions to compel arbitration or to stay proceedings
pending arbitration. See, e.g., Klein v. Nabors Drilling USA L.P., 710 F.3d 234, 236–
37 (5th Cir. 2013); Gallagher, 860 F. App’x at 356. Thus, the Court’s analysis as to
defendants’ request for a stay of proceedings is functionally the same as its summary
judgment analysis.
interpretation to the extent that those rules are consistent with federal labor
policies.” Id. (quoting Nichols v. Alcatel USA, Inc., 532 F.3d 364, 377 (5th Cir. 2008)).
Plaintiffs do not dispute that the CBA constitutes a valid agreement to
arbitrate. Instead, they argue that the CBA does not require Jefferson to submit her
§ 1983 claims to mandatory arbitration, citing 14 Penn Plaza LLC v. Pyett, 556 U.S.
247 (2009).30 In other words, they argue that Jefferson’s claims do not fall within the
scope of the CBA’s grievance and arbitration requirements. Defendants do not
address Penn Plaza in their memorandum in support of the motion, nor in their reply.
“In 14 Penn Plaza LLC v. Pyett, the Supreme Court clarified that, in the
absence of statutory language to the contrary, a union may agree with an employer
to submit employees’ statutory claims exclusively to arbitration or another non-
judicial grievance procedure.” Savant, 776 F.3d at 288 (citing Penn Plaza, 556 U.S.
at 256–58). “For that agreement to be enforceable, however, the CBA must ‘clearly
and unmistakably require[ ] union members to arbitrate.’” Id. (quoting Penn Plaza,
556 U.S. at 274). The Fifth Circuit, in applying Penn Plaza, has held that, “for a
waiver of an employee’s right to a judicial forum for statutory discrimination claims
to be clear and unmistakable, the CBA must, at the very least, identify the specific
statutes the agreement purports to incorporate or include an arbitration clause that
explicitly refers to statutory claims.” Id. at 288–89 (5th Cir. 2014) (quoting Ibarra v.
United Parcel Serv., 695 F.3d 354, 359–60 (5th Cir. 2012)).
30 R. Doc. No. 17, at 4.
Additionally, Penn Plaza instructs that a CBA provision which exclusively
submits statutory claims to arbitration must be enforced “unless Congress itself has
evinced an intention to preclude a waiver of judicial remedies for the statutory rights
at issue.’” 556 U.S. at 258 (quoting Gilmer v. Interstate/Johnson Lane Corp., 500 U.S.
20, 26 (1991)).
The CBA between ATU Local 1560 and RTA sets forth the processes by which
disputes between the RTA and its covered employees are to be resolved and reserves
certain rights and protections to the parties. The CBA provides that RTA has the
right “to reprimand, discharge or otherwise discipline employees for just cause.”31 It
further provides that “any dispute arising from the interpretation or application of
this Agreement or any dispute between the company and an employee or the union
as to whether an employee has been disciplined, suspended, or discharged for just
cause” must be submitted to an internal grievance procedure and, if not resolved
through said procedure, to arbitration.32 The CBA also states that “[d]ischarges shall
be subject to arbitration.”33 The CBA makes no reference to statutory rights
generally, nor to claims brought pursuant to 42 U.S.C. § 1983 in particular.
The Fifth Circuit considered a similar provision in Savant, in which an
employee had commenced an action in federal court raising claims pursuant to the
Age Discrimination in Employment Act (“ADEA”). 776 F.3d at 287. The relevant
provision stated:
31 R. Doc. No. 10-3, at 5.
32 R. Doc. No. 10-3, at 9–12.
33 R. Doc. No. 10-3, at 11.
This grievance procedure and arbitration shall be the exclusive remedy
with respect to any and all disputes arising between the Union or any
person working under the Agreement . . . and . . . any company acting
under the Agreement . . . and no other remedies shall be utilized[.]
Id. at 289. The Fifth Circuit concluded that the CBA was “not clear and
unmistakable,” because it “[did] not specifically identify the ADEA, and it [did] not
state that statutory discrimination claims are subject to its grievance and arbitration
procedures.” Id. Thus, the CBA could not bar the plaintiff from filing suit pursuant
to the ADEA. Id.34
Accordingly, the Court concludes that the CBA in this action does not clearly
and unmistakably require union members to arbitrate § 1983 claims. Thus, plaintiffs’
claims do not fall within the scope of the grievance and arbitration procedures
mandated by the CBA.35
34 By contrast, the Fifth Circuit concluded that the memorandum of understanding
in the same case was “clear and unmistakable,” where the memorandum stated that
“[a]ny complaint that there has been a violation of any employment law, such as . . .
[the] ADEA . . . shall be resolved solely by the grievance and arbitration provisions of
the collective bargaining agreement” and that the specified procedure “shall be a
worker’s sole remedy for a violation of any antidiscrimination or employment law.”
Savant, 776 F.3d at 289.
35 The Court’s conclusion as to Penn Plaza’s first inquiry is dispositive. Therefore, the
Court need not reach the second inquiry, which looks to whether Congress, in
enacting § 1983, evinced an intention to preclude waiver of access to a federal judicial
forum in this specific context. It appears that neither the Supreme Court nor the Fifth
Circuit has addressed this question with respect to mandatory arbitration.
Defendants state only that “Congress has not evinced an intention to preclude a
waiver of judicial remedies for the statutory rights at issue [in this action],” without
providing any authority in support of this proposition. R. Doc. No. 10-1, at 14.
However, plaintiffs suggest that the Supreme Court’s reasoning regarding other §
1983-related issues indicates that courts should be hesitant, at the very least, to delay
or deny a plaintiff’s ability to raise § 1983 claims in federal court. For instance, the
Court has long held that exhaustion of state administrative remedies is not a
prerequisite to bringing an action pursuant to § 1983. Patsy v. Bd. of Regents, 457
Defendants do not address Penn Plaza and related Fifth Circuit caselaw in
their motion. Instead, the central thrust of defendants’ argument appears to be that
“the dispute at issue in this lawsuit (whether Ms. Jefferson’s employment was
terminated with ‘just cause’) is the exact same dispute at issue in Plaintiffs’
grievances, which are subject to mandatory arbitration.”36 Further, defendants
submit that “[t]he entirety of Plaintiffs’ claims in this action arose out of the RTA’s
termination of Ms. Jefferson’s employment . . . which the CBA mandates ‘shall be
subject to arbitration.’”37
“The distinctly separate nature of [ ] contractual and statutory rights is not
vitiated merely because both were violated as a result of the same factual occurrence.”
Ibarra, 695 F.3d at 358 n.23 (quoting Alexander v. Gardner-Denver Co., 415 U.S. 36,
50 (1974)). Thus, “when an arbitration agreement commits claims or disputes to
arbitration that are similar to or even substantially duplicative of the rights secured
under a statute or constitution, the arbitration agreement does not eliminate the
plaintiff's right to seek judicial relief for violations of those statutory or constitutional
rights, even if parallel with an arbitration claim.” Edinburg United Police Officers
U.S. 496, 516 (1982). In so holding, the Court has emphasized that, in enacting
§ 1983, “Congress intended . . . to throw open the doors of the United States courts to
individuals who . . . who had suffered[] the deprivation of constitutional rights . . .
and to provide these individuals immediate access to the federal courts[.]” Id. at 504
(emphasis added) (quotation omitted).
36 R. Doc. No. 10-1, at 5.
37 Id. Defendants cite to Amalgamated Transit Union Local 1546 v. Capital Area
Transit System, No. 20-888, 2021 WL 5578040 (M.D. La. Nov. 29, 2021), for additional
support for this argument. R. Doc. No. 20, at 1–3. However, because the court in
Amalgamated Transit Union Local 1546 did not address Penn Plaza and related
caselaw, the case does little to enhance defendants’ argument.
Ass’n v. City of Edinburg, No. 20-137, 2020 WL 5642197, at *4 (S.D. Tex. Sept. 22,
2020) (citing Mathews v. Denver Newspaper Agency LLP, 649 F.3d 1199, 1205–06
(10th Cir. 2011)) (emphasis in original).38
Defendants’ argument, if accepted, would allow defendants to circumvent Penn
Plaza’s holding that statutory claims may only be subjected to mandatory arbitration
if the CBA “clearly and unmistakably” provides as much. After all, the types of
statutory claims that fall within Penn Plaza’s holding tend to arise from factual
scenarios that could also form the basis for workplace disciplinary and grievance
procedures.
If employers were permitted to obtain a stay or dismissal of an employee’s
discrimination action in federal court by simply reframing the dispute as regarding
whether the employee was disciplined for “just cause,” or by asserting that the action
factually overlapped with matters that could otherwise be subject to arbitration, then
Penn Plaza’s “clear and unmistakable” requirement would be rendered toothless.
IV. CONCLUSION
Defendants have failed to establish that they are entitled to summary
judgment. For the same reasons, defendants have failed to establish that a stay of
these proceedings, pending arbitration, is warranted. See supra n.29. Accordingly,
38 The Court notes that defendants’ assertion that “the relief Plaintiffs seek in this
lawsuit (reinstatement of Ms. Jefferson’s employment and back pay) is the exact same
relief Plaintiffs sought in their grievances,” R. Doc. No. 10-1, at 5, is inaccurate.
Plaintiffs have also asked the Court, among other things, to “[e]njoin defendants from
further retaliating against Jefferson or any other member of Local 1560 for protected
speech and association.” R. Doc. No. 1, at 10. Defendants have not explained how this
type of requested relief, among others, could be obtained through arbitration.
IT IS ORDERED that the motion for summary judgment or, in the
alternative, for a stay of proceedings pending arbitration, is DENIED.
New Orleans, Louisiana, April 27, 2022.
ANCE M. AFRICK
UNITED STATRHS DISTRICT JUDGE
12