AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES, LOCAL 77 v. DUKE UNIVERSITY

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

AMERICAN FEDERATION OF STATE, )

COUNTY AND MUNICIPAL EMPLOYEES, )

LOCAL 77, )

)

Plaintiff, )

)

v. ) 1:18cv228

)

DUKE UNIVERSITY, )

)

Defendant. )

MEMORANDUM OPINION AND RECOMMENDATION

OF 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.

BACKGROUND

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

1 Citations herein to Docket Entry pages utilize the CM/ECF

footer’s pagination.

2

[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.

(Id.)3

“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

2 The previous CBA became effective July 1, 2014.

(See Docket Entry 1-2 at 1; see also Docket Entry 1, ¶ 11.)

3 In its post-arbitration brief, Defendant asserted that,

“[i]n a later incident, Mr. Thorpe wore a Duke employee badge when

he again exposed his genitals to the female BP employee at the

store” (Docket Entry 15-4 at 6); however, as the arbitrator noted,

no exhibition occurred at this later incident (see Docket Entry 1-7

at 2; see also Docket Entry 20-1, ¶¶ 9, 10 (indicating that alleged

additional exposures occurred prior to incident on September 7,

2016)).

3

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

4 As a general matter, “[s]tatements in briefs are not

evidence.” Dillon v. BMO Harris Bank, N.A., No. 1:13cv897, 2014 WL

911950, at *2 (M.D.N.C. Mar. 10, 2014) (collecting cases). Here,

however, Plaintiff’s Business Manager Michael Gibson averred that

he “reviewed the statement of facts from [Plaintiff’s post-

arbitration] brief, and believe[s] it is consistent with the

evidence introduced at the arbitration” (Docket Entry 15-1, ¶ 12),

and Defendant does not contest the accuracy of the evidence

recounted in that brief — indeed, Defendant relies on Plaintiff’s

post-arbitration brief in its own description of the evidence

offered at the arbitration (see, e.g., Docket Entry 20 at 5, 6).

Under these circumstances, Gibson’s affidavit effectively verifies

the evidentiary assertions in Plaintiff’s post-arbitration brief,

rendering their consideration appropriate. See generally Williams

v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991) (“[A] verified

complaint is the equivalent of an opposing affidavit for summary

judgment purposes, when the allegations contained therein are based

on personal knowledge.” (emphasis in original)).

5 In relevant part, the letter states:

On October 3, 2016, [Defendant] w[as] made aware of [Mr.

Thorpe’s] arrest and the charge for which [he] w[as]

detained:

(continued...)

4

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

5(...continued)

Indecent Exposure

According to the Duke Arrest Policy: The arrest of an

employee, whether on or off campus, may result in

corrective action. Corrective action depends upon a

review of all the factors involved, including whether or

not the employee’s action was work-related, the nature of

the action, or resultant circumstances which adversely

affect attendance. Such corrective action may be up to

and including suspension or termination.

Based on the events surrounding [Mr. Thorpe’s] arrest,

[he] w[as] trespassed from all Duke University and Duke

University Health System property by Duke University

Police except in the event of a medical emergency.

Subsequently, [he] cannot be returned to work until the

trespass order is lifted.

Effective October 3, 2016, [Mr. Thorpe is] suspended from

active employment with pay pending investigation.

If, or when the trespass by Duke Police is lifted,

[Defendant] will make a determination about [Mr.

Thorpe’s] continued employment with [Defendant]. Of

course, if [Mr. Thorpe] choose[s] to resign from [his]

positon [sic], [he] may do so voluntarily at any time.

(Docket Entry 15-11 at 1 (formatting in original).)

5

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

6

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.)

7

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”

8

(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]

6 Per another witness at the arbitration, the surveillance

video “seemed low-quality and low-resolution” and “showed a man

walk up to a convenience store counter,” but, “[b]ased on what [the

witness] saw at the arbitration, [she] could not tell if he was

exposing himself or not. It was much less clear than [she]

expected.” (Docket Entry 15-15, ¶ 7.)

7 Per Plaintiff’s post-arbitration brief, “the video was not

introduced as an exhibit” at the arbitration. (Docket Entry 15-3

at 31.)

9

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

10

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).)

11

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”

12

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

13

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

14

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

15

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

8 As a matter of North Carolina law, and unlike with a

conditional discharge, an individual placed on deferred prosecution

neither “pleads guilty to [n]or is found guilty of” a charge.

Compare N.C. Gen. Stat. § 15A-1341(a1) (“Deferred Prosecution. — A

person who has been charged with a Class H or I felony or a

misdemeanor may be placed on probation as provided in this Article

on motion of the defendant and the prosecutor if the court finds

[certain specified] facts,” including that “[p]rosecution has been

deferred by the prosecutor pursuant to written agreement with the

defendant, with the approval of the court, for the purpose of

allowing the defendant to demonstrate his good conduct,” as well as

that “[e]ach known victim of the crime has been notified of the

motion for probation by subpoena or certified mail and has been

given an opportunity to be heard”), with N.C. Gen. Stat.

§ 15A-1341(a4) (“Conditional Discharge. — Whenever a person pleads

guilty to or is found guilty of a Class H or I felony or a

misdemeanor, the court may, on joint motion of the defendant and

the prosecutor, and without entering a judgment of guilt and with

the consent of the person, defer further proceedings and place the

person on probation as provided in this Article for the purpose of

allowing the defendant to demonstrate the defendant’s good conduct

if the court finds [certain specified] facts,” none of which

involves an agreement between the prosecutor and the defendant);

see also State v. Baker, No. COA15-600, 247 N.C. App. 398 (table),

786 S.E.2d 432 (table), 2016 WL 1743595, at *5 (May 3, 2016)

(unpublished) (“Generally, a deferred prosecution agreement results

in a defendant’s ‘admission of responsibility’ as described on an

AOC-CR-610 ‘Motion/Agreement and Order to Defer Prosecution’ Form,

or an acknowledgement of ‘guilt in fact,’ but this admission or

acknowledgement does not amount to a guilty plea.”).

16

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

(2): INDICATE, READ • 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) in reproducible form

The conduct of [Mr. Thorpe], whether by commission [or]

omission, does not meet the above definition, and no

allegedly falsified document was introduced into

evidence. [Defendant’s] Exhibit 4 clearly defines [Mr.

Thorpe’s] time and duties on shift. Simply put, the

credible evidence puts [Mr. Thorpe] at the gas station at

7:46 pm when he should “resume floor care activities” at

7:30 pm at the work site. [Mr. Thorpe] simply failed to

report back to his work station at the scheduled

conclusion of a work break or meal period, a violation of

Work Rule 13 [sic].

For All The Foregoing Reasons, The Arbitrator Makes

The Following Award:

Grievance, granted as to the discipline of

discharged.

[Mr. Thorpe’s] discharge is reduced to a 30 working

day suspension beginning October 20,[ ]2016 through and

including December 1, 2016.

[Mr. Thorpe] is to be made whole for all lost wages

and benefits up to his date of reinstatement, including

any accrued seniority.

17

Within ten days of receipt of th[e Arbitration]

Award, [Mr. Thorpe] shall submit an Affidavit itemizing

all interim earning to date of reinstatement including

any NC Employment Security Commission payments which

amount shall offset any backpay due.

The Arbitrator shall retain jurisdiction in the

matter for 60 days to determine any disputes as to the

above remedies and supplemental Award.

(Id. at 5-6 (heading omitted) (formatting, capitalization, and all-

cap font in original).)

Following receipt of the Arbitration Award, “Mr. Thorpe

provided an affidavit stating his interim earnings” (Docket Entry

17-1 at 3), and “[Plaintiff] attempted to secure Mr. Thorpe’s

reinstatement,” but “[Defendant] refused to reinstate Mr. Thorpe”

(Docket Entry 15-1, ¶ 15). (See also Docket Entry 15-10, ¶¶ 18

(“[Mr. Thorpe] was ready and eager to return to [his] position at

[Defendant].”), 19 (“[Defendant] did not reinstate [Mr. Thorpe] to

[his] position.”).) Plaintiff therefore filed the instant action

to enforce the Arbitration Award. (See Docket Entry 1 at 5-6.)

“After [Plaintiff] initiated this legal action, [Defendant]

informed [Plaintiff’s Business Manager, Michael Gibson (see Docket

Entry 15-1, ¶ 1)] that it was going to reinstate and then

immediately suspend Mr. Thorpe to further investigate the alleged

incident of indecent exposure on September 7, 2016” (id., ¶ 16).

Kathryn Boyd “investigated [Mr.] Thorpe’s indecent exposure

charge in [her] capacity as Legal Fellow at the Office of Counsel

for [Defendant] from April 2018 through June of 2018.” (Docket

18

Entry 20-1, ¶ 4.) On April 10, 2018, Boyd met with a Senior Human

Resources Representative at Defendant, who gave her “Duke Police

Department’s Report on [Mr.] Thorpe’s indecent exposure incident

occurring on September 7, 2016.” (Id., ¶ 5.) The next day, Boyd

spoke with Officer Holland, who “informed [her] that the Durham

Police Department conducted an initial investigation into the

indecent exposure incident occurring at the BP Family Fare on

September 7, 2016. Officer Holland referred [her] to Investigator

Buffy Jones from the Durham Police Department because he believed

that [Officer] Jones would have additional information regarding

the incident.” (Id., ¶ 6.)

“On or around April 12, 2018, Officer Holland gave [Boyd] the

video tape from the BP Fan Fare allegedly showing Mr. Thorpe

exposing himself to the female attendant.” (Id., ¶ 7.) On April

13, 2018, Boyd spoke with Officer Jones “regarding Mr. Thorpe’s

indecent exposure incident occurring on September 7, 2016. At

[Boyd’s] request, [Officer] Jones provided Officer Holland with

Durham Police Department’s police report of the indecent exposure

incident, and Officer Holland provided the report to [Boyd].

[Defendant] did not previously have Durham Police Department’s

report.” (Id., ¶ 8.)

“After speaking with [Officer] Jones and reviewing the police

report provided, [Boyd] concluded that Mr. Thorpe had exposed

19

himself to the BP Family Fare attendant before in the past.” (Id.,

¶ 9.) In that regard:

As part of [her] investigation, [Boyd] also contacted the

female gas station attendant and spoke with her on the

phone in early May, 2018. She informed [Boyd] that Mr.

Thorpe had exposed himself to her in the past and that

the September 7, 2016 incident was not an isolated event,

and that each time it occurred had been upsetting to her.

She also informed [Boyd] that Mr. Thorpe had exposed

himself to another female attendant in the past. The

female gas station attendant and [Boyd] discussed the

possibility of Mr. Thorpe returning to [Defendant], and

she informed [Boyd] that she felt he should not return

because of his history of exposing himself, and the fact

that his job might bring him into contact with a

vulnerable patient population. This was . . . all new

information to [Defendant].

(Id., ¶ 10.)

Boyd provided the information from her investigation to her

supervisor, who decided to send it to Defendant’s Office of

Institutional Equity “because th[at] is the [Office] within Duke

University that investigates sexual harassment complaints.” (Id.,

¶ 11.) “On or around May 10, 2018, Mr. Thorpe’s investigation file

was sent to Cynthia Clinton” with that Office. (Id., ¶ 12.)

Finally, on June 15, 2018, Boyd sent “Clinton the video showing the

indecent exposure incident” and informed her that Boyd “had spoken

with the BP attendant who stated that she and another female

attendant had both been flashed by Mr. Thorpe.” (Id., ¶ 13.)

In the interim, Gibson, Mr. Thorpe, “and Duke Human Resources”

met on April 26, 2018, at which meeting “Human Resources

simultaneously gave [Gibson and Mr. Thorpe] two letters. One

20

letter claimed to reinstate Mr. Thorpe’s employment, while the

other letter stated that Mr. Thorpe was suspended pending an

investigation” (Docket Entry 15-1, ¶ 17) into “the same incident of

alleged indecent exposure that occurred on September 7, 2016”

(Docket Entry 15-10, ¶ 20). Addressed to Mr. Thorpe, with a “Cc:”

to Gibson, both letters bear the signature of Antwan Lofton and the

date of April 26, 2018. (Docket Entries 15-5, 15-6.)9

9 On October 15, 2018, Plaintiff submitted affidavits of

Gibson and Mr. Thorpe in support of its Confirmation Motion and

Defendant submitted an affidavit of Lofton in support of its

Dismissal Motion. (See Docket Entries 14-1, 15-1, 15-10, 17-1.)

Lofton’s affidavit states that “[Defendant] reinstated Mr. Thorpe

to his former position as a Floor Finisher in Environmental

Services working at Duke North Hospital effective May 1, 2018.”

(Docket Entry 17-1 at 3.) Lofton further avers:

Mr. Thorpe was informed that he should not report to work

until he and [Lofton] could first meet, but that he would

be paid in the meantime as if he were working. On May

14, 2018, [Lofton] met with Mr. Thorpe and explained that

he would be suspended with pay while Duke investigated

the sexual assault, [Lofton] wrote a letter to Mr. Thorpe

and [Plaintiff] to explain the situation and avoid

miscommunication. Although [Lofton] signed the letter on

April 26, 2018, [Lofton] did not provide the letter to

Mr. Thorpe until [they] met on May 14, 2018.

(Id.) In response to Lofton’s assertions, Gibson filed a

supplemental declaration, which states, in relevant part:

As [Gibson] stated in [his] earlier declaration, on

or about April 26, 2018, [Gibson] met with [Mr.] Thorpe

and Duke Human Resources. Mr. Antwan Lofton was Duke’s

representative at that meeting and gave [Gibson] the two

letters attached to [Gibson’s] earlier declaration. At

the meeting, [Gibson] spoke on Mr. Thorpe’s behalf as his

Union representative. Mr. Thorpe said very little in

this meeting. The meeting was very short.

(continued...)

21

As relevant here, one letter states that, “[a]s a result of

the decision rendered by Arbitrator Robert W. Kilroy on December

20, 2017, reducing [Mr. Thorpe’s] termination on October 20, 2016

to a 30 working day suspension, [Mr. Thorpe is] reinstated

effective May 1, 2018 to [his] position as a Floor Finisher in

Environmental Services,” with payment “for all lost wages beginning

December 2, 2016 and up through May 1, 2018, less interim

earnings.” (Docket Entry 15-5 at 1.) The other letter states, in

pertinent part:

[Lofton is] writing to inform [Mr. Thorpe] that the

University is conducting an investigation into [his]

actions of exposing [his] genitalia to others, including

the incident at the BP Gas Station on University Avenue

on Wednesday, September 7, 2016, and other dates.

Effective immediately, [Mr. Thorpe is] being placed on

Suspension (with pay) pending the outcome of the

investigation.

9(...continued)

At some point around this time, Mr. Lofton indicated

that Duke wanted Mr. Thorpe to submit a written

statement. [Gibson] told Mr. Lofton that Mr. Thorpe had

already been examined at the arbitration, that there was

a lawsuit pending regarding the enforcement of the

[A]rbitration [A]ward, and that if Duke wanted any

further information from Mr. Thorpe about issues

addressed at the arbitration it should direct those

requests to the Union’s attorney.

(Docket Entry 18-1, ¶¶ 2, 3 (paragraph numbering omitted).)

Defendant did not directly address the apparent discrepancy between

Lofton’s and Gibson’s affidavits (see Docket Entries 20, 21), but

did thereafter concede that “[Defendant] informed Thorpe in writing

on April 26, 2018 that he was placed on suspension with pay pending

further investigation of the criminal charges” (Docket Entry 20 at

19 (citing Docket Entry 15-6)).

22

Please forward to [Lofton’s] office [Mr. Thorpe’s]

written statement concerning this matter by May 3,

2018. . . .

(Docket Entry 15-6 at 1.)

On April 27, 2018, Plaintiff’s attorney wrote the following to

Defendant’s attorney:

As you are aware, on December 20, 2017, Arbitrator

Kilroy issued an award requiring that Duke University

reinstate [Mr.] Thorpe to his employment as a floor

finisher. After Duke failed to comply with the

Arbitrator’s award, on March 20, 2018 the Union filed an

action in federal court seeking confirmation and

enforcement of the award.

Yesterday, Duke provided the Union a letter stating

Mr. Thorpe would be “reinstated” as of May 1, 2018. Duke

simultaneously provided a second letter stating that Mr.

Thorpe would immediately be placed on suspension pending

the outcome of an investigation into the alleged criminal

conduct that was exhaustively discussed at the

arbitration. Duke also requested that Mr. Thorpe

complete “a written statement concerning this matter” by

May 3, 2018. It is unclear what “matter” Duke wished Mr.

Thorpe’s statement to address.

Duke’s proposal to “reinstate” and then immediately

suspend Mr. Thorpe constitutes a flagrant violation of

the Arbitrator’s award and the [CBA]. Mr. Thorpe has

already provided a statement about the allegations

brought against him — he was questioned at length about

the alleged indecent exposure at the arbitration, under

oath. The Arbitrator nevertheless reinstated Mr. Thorpe

to his position without precondition. Duke cannot now

suspend Mr. Thorpe to further investigate alleged

misconduct covered by the arbitration. If Duke continues

in this manner, the Union will seek immediate enforcement

from the District Court, including an award of attorneys’

fees.

Regarding Duke’s request for a statement from Mr.

Thorpe, we refer Duke to Mr. Thorpe’s testimony at the

arbitration on November 9, 2017. Should Duke wish to

request any other information from Mr. Thorpe or the

23

Union regarding topics covered by the arbitration, please

address those requests to me.

(Docket Entry 15-7 at 1-2.)

On June 14, 2018, Gibson, Mr. Thorpe, and Plaintiff’s attorney

met with Clinton. (See Docket Entry 15-1, ¶ 21; see also Docket

Entry 15-10, ¶ 22; Docket Entry 18-1, ¶ 4.) Gibson characterized

“[t]he meeting []as confusing at first because Ms. Clinton appeared

unaware of the earlier arbitration.” (Docket Entry 18-1, ¶ 4.)

When Gibson “brought up the arbitration” regarding “the 2016

incident. . . .[,] Clinton said that she had not known about it.”

(Docket Entry 15-1, ¶ 22.) During this meeting,

Clinton interviewed Mr. Thorpe about the same alleged

incident of indecent exposure that had been addressed at

the arbitration. Clinton asked questions about many of

the same topics that were discussed at the arbitration,

including what happened in the convenience store on

September 7, 2016, the circumstances surrounding Mr.

Thorpe’s criminal charges, and the circumstances

surrounding the dismissal of Mr. Thorpe’s criminal

charges.

(Id., ¶ 21; accord Docket Entry 15-10, ¶ 22; Docket Entry 18-1,

¶ 4.)

At this meeting, Mr. Thorpe denied exposing himself,

“explain[ing his] understanding of the voluntary dismissal,

including how [he] was required to complete community service

before the case would be dismissed,” and “that [he] had not been

required to admit guilt in order to obtain the voluntary

dismissal.” (Docket Entry 15-10, ¶ 22; see also id., ¶ 9 (“[Mr.

Thorpe’s] criminal attorney told [him] that the dismissal did not

24

require [him] to admit guilt. [He] do[es] not recall ever

admitting guilt to the offense. [He] would not have admitted guilt

to the offense because [he] did not expose [him]self, and [is] not

guilty of indecent exposure.”).) “[Mr. Thorpe’s] explanation was

consistent with his testimony at [the] arbitration.” (Docket Entry

18-1, ¶ 4.)

“On or about July 13, 2018, [Defendant] sent [Mr. Thorpe] a

letter discussing the same alleged incident of indecent exposure

addressed at the arbitration. The letter stated that [Mr. Thorpe]

was terminated ‘for just cause based on the egregious nature of

your unlawful conduct.’” (Docket Entry 15-10, ¶ 23.) More

particularly, the letter specifies:

On March 28, 2018 [sic], [Mr. Thorpe] w[as] placed

on Suspension Pending Investigation as a result of

additional information resulting from the incident at the

BP Gas Station on University Avenue on Wednesday,

September 7, 2016.

On June 14, 2018, [Mr. Thorpe] voluntarily met with

Cynthia Clinton, Assistant Vice President of

Harassment/Discrimination Prevention and Compliance,

Office of Institutional Equity, Duke University. At this

meeting, [Mr. Thorpe] w[as] accompanied by [Gibson] and

[Plaintiff’s counsel]. The reason for the meeting was to

discuss allegations made by a BP Family Fare Cashier

stating [Mr. Thorpe] exposed [his] genitals (penis) to

her while she was at work on September 7 and had done the

same thing in the store to other employee(s) [sic]

*****

During the interview with [Clinton, Mr. Thorpe]

stated [he] w[as] unaware of any incident of exposure

involving the BP Family Fare Cashier and when confronted

by law enforcement, [he] stated [that he] did not expose

[him]self. [Mr. Thorpe] also stated that after court

25

proceedings had occurred concerning the exposure, all

charges in connection to the exposure incident were

voluntarily dropped.

However, court records show that [Mr. Thorpe] w[as]

not only charged with indecent exposure, [he] w[as]

placed on Deferred Prosecution by Durham County. To be

placed on Deferred Prosecution means [he] had to admit

responsibility for [his] actions. As part of this plea,

[he] had to perform 30 hours of community service which

had to be completed by 1/23/17 at a non-profit agency.

[He] w[as] also placed on 12 months of unsupervised

probation. It meant that if [his] record remained clean

for 12 months, the charges would be dropped and the

incident removed from [his] record, which is what

happened.

The actions [Mr. Thorpe] committed constitute sexual

harassment and sexual assault and are a violation of Work

Rule #17, which states, in part, “Behavior which

compromises another’s’ [sic] safety or privacy...” [Mr.

Thorpe’s] termination is for just cause based on the

egregious nature of [his] unlawful conduct.

Therefore, [Mr. Thorpe’s] employment with Duke

University and Duke University Health System is

terminated effective July 13, 2018.

(Docket Entry 17-1 at 7-8 (final ellipsis in original).)10

A few days later, Plaintiff filed a grievance regarding this

termination. (See id. at 4.) The grievance asserts that Defendant

violated “Article 11, Arbitration,” “Article 13, Disciplinary

10 Although the termination letter specifies 12 months of

unsupervised probation (see id. at 7), Lofton’s affidavit

characterizes it as 12 months of supervised probation (see id. at

4). However, the only North Carolina criminal filing in the record

reflects that Mr. Thorpe “was placed on probation pursuant to . . .

deferred prosecution” on October 17, 2016, and, “[p]ursuant to

[his] fulfillment of the terms and conditions of probation imposed”

on October 17, 2016, the state prosecutor “enter[ed] a voluntary

dismissal of all charges” due to successful completion less than

four months later, on January 30, 2017. (Docket Entry 15-2 at 1;

accord Docket Entry 15-13 at 1.)

26

Action,” and “[Letter of Understanding] page 133, Timely Issuance

of Disciplinary Actions.” (Id. at 9.)11 It further identifies four

issues: (1) “Whether [Mr. Thorpe] was disciplined in contravention

of the Arbitrator’s Award issued on December 20, 2017,” (2)

“Whether [Mr. Thorpe] was disciplined for just cause,” (3) “Whether

[Mr. Thorpe] violated Work Rule #17,” and (4) “Whether [Mr. Thorpe]

was disciplined in a timely manner.” (Id.) Finally, the grievance

states:

The Union maintains that [Mr. Thorpe] has not been

reinstated as required by the [Arbitration] Award and

that [Mr. Thorpe’s] discipline contravenes th[e

Arbitration] Award. The Union is enforcing the

[Arbitration] Award in [the instant action]. The Union

believes that the federal lawsuit is the appropriate

forum in which to resolve this dispute. The Union is

filing this grievance without prejudice to its ability to

pursue relief in the federal enforcement proceeding.

(Id.)

11 The “Letter of Understanding,” entitled “Timely Issuance

of Disciplinary Action,” states:

The Union and [Duke] agree that disciplinary actions

issued to employees should be done in a timely manner.

The focus should be on corrective behavior at or near the

time of the occurrence. In some circumstances, i.e. an

extensive investigation, an extended absence or other

unusual circumstances, the appropriate corrective action

may not be administered in as timely of a manner.

Disciplinary Actions, which have become inactive, should

not remain part of the employee’s file. Once removed

from the file the disciplinary actions should not be used

in determining further disciplinary actions or be a part

of files transferred to other departments.

(Docket Entry 1-1 at 68.)

27

Thereafter, Defendant filed the Dismissal Motion, contending

that it complied with the Arbitration Award, rendering this lawsuit

moot. (See Docket Entry 13 at 1.) That same day, Plaintiff moved

to confirm and enforce the Arbitration Award (see Docket Entry 15

at 1), maintaining that Defendant has “refused to comply with [the

Arbitration Award]” (Docket Entry 16 at 1). Plaintiff subsequently

filed a response in opposition to Defendant’s Dismissal Motion (see

Docket Entry 18), and Defendant filed its own opposition to the

Confirmation Motion (see Docket Entry 20).

DISCUSSION

I. Jurisdictional Challenge

According to Defendant, it “has fully complied with and

satisfied the [A]rbitration [A]ward,” and thus, “pursuant to [Rule

12(b)(1) of the] Federal Rule[s] of Civil Procedure [(the “Rules”],

Plaintiff’s claim is now moot and the Court lacks subject matter

jurisdiction over the dispute.” (Docket Entry 13 at 1.) “The

Union, however, refuses to concede that [Defendant complied with

the Arbitration Award] and asks that [the Court] confirm this

award.” Brown & Pipkins, LLC v. Service Emps. Int’l Union, Local

32BJ, 846 F.3d 716, 728 (4th Cir. 2017).

“[U]nder Article III of the Constitution, the conflict between

the litigants must present a ‘case or controversy’ both at the time

the lawsuit is filed and at the time it is decided.” Ross v. Reed,

719 F.2d 689, 693 (4th Cir. 1983) (emphasis in original); see

28

also id. at 693-94 (explaining that, “[i]f intervening factual or

legal events effectively dispel the case or controversy during

pendency of the suit, the federal courts are powerless to decide

the questions presented”). As the United States Court of Appeals

for the Fourth Circuit recently explained, “[a] case is moot when

the issues presented are no longer ‘live’ or the parties lack a

legally cognizable interest in the outcome. A case becomes moot

only when it is impossible for a court to grant any effectual

relief whatever to the prevailing party.” Brown & Pipkins, 846

F.3d at 728 (citation and some internal quotation marks omitted)

(emphasis in original).

As a preliminary matter, a “live” controversy exists between

the parties regarding whether or not Defendant complied with the

Arbitration Award. (See, e.g., Docket Entry 15-7 at 1 (“Duke’s

proposal to ‘reinstate’ and then immediately suspend Mr. Thorpe

constitutes a flagrant violation of the Arbitrator’s [A]ward and

the [CBA].”).) On this basis alone, the Court should reject

Defendant’s request to dismiss this case as moot. See Brown &

Pipkins, 846 F.3d at 728-29 (rejecting mootness contention and

“find[ing] that confirmation of [an arbitration award] is proper

because a live controversy regarding the award exists” even though

the defendant allegedly twice paid the money ordered by the

arbitration award, which payment the plaintiff “refuse[d] to

concede,” and explaining that, along with certain other factors,

29

“the [u]nion’s insistence that a controversy still exists convince

[the Fourth Circuit] that it is not impossible to grant any

effectual relief by affirming the confirmation of the [award]”);

see also Fraternal Order of Police Metro Transit Police Labor

Comm., Inc. v. Washington Metro. Area Transit Auth., 780 F.3d 238

(4th Cir. 2015) (analyzing merits of dispute over employer’s

compliance with arbitration awards, where union contended that

employer only temporarily complied with arbitration awards).

In addition, in this case, “the relevant facts — for

jurisdictional and merits purposes — are inextricably intertwined,”

Kerns v. United States, 585 F.3d 187, 195 (4th Cir. 2009),

involving as they do one core question: whether or not Defendant

complied with the Arbitration Award. (Compare, e.g., Docket Entry

1, ¶ 27 (asserting that Defendant failed to comply with the

Arbitration Award), Docket Entry 15-7 at 1 (asserting that

Defendant’s simultaneous reinstatement and suspension of Mr. Thorpe

violates the Arbitration Award), and Docket Entry 16 at 13

(“Because Arbitrator Kilroy had already ordered that Mr. Thorpe was

entitled to his job notwithstanding the September 7, 2016 incident,

Duke’s decision to fire him a second time based on the same

incident is a flagrant violation of the arbitrator’s award.”), with

Docket Entry 17-1 at 3 (“The reinstatement and payment [of back

wages] fully satisfied the [A]rbitration Award.”), and Docket Entry

20 at 1 (“Duke did not take a ‘second bite of the apple’ when it

30

suspended Mr. Thorpe in May of 2018 and ultimately terminated his

employment in July of 2018 for sexual harassment and sexual assault

in violation of Work Rule 17.”).) As such, the “[C]ourt should

assume jurisdiction and assess the merits of [Plaintiff’s] claim.”

Kerns, 585 F.3d at 195.

Moreover, because the Court should “not dismiss under Rule

12(b)(1), it is entitled to treat [Defendant’s] Rule 12(b)(1)

motion as a direct attack on the merits under Rule 56(c).” Id. at

193 n.6. Accordingly, the Court should deny Defendant’s

jurisdictional challenge and instead construe its Dismissal Motion

as a Rule 56 request for summary judgment.

II. Compliance Challenge

Turning to the merits, “the question in this case is not

whether the [A]rbitration [A]ward[ is] valid — the parties do not

dispute that [Arbitrator Kilroy] had the power to order [Defendant]

to reinstate [Mr. Thorpe] and that the [Arbitration A]ward[] w[as]

valid when issued. Rather, the question is whether [Defendant]

complied with the [A]ward[].” Fraternal Order of Police, 780 F.3d

at 242. In this regard, Plaintiff contends that Defendant has yet

to comply with the Arbitration Award (see generally Docket Entries

1, 16), whereas Defendant maintains that it fully complied with the

Arbitration Award by placing Mr. Thorpe on the payroll and paying

him his lost wages on or around May 1, 2018 (see, e.g., Docket

Entry 6, ¶ 27 (“Defendant states that it reinstated Mr. Thorpe

31

effective May 1, 2018 and fully paid him the monetary award due.

Defendant has fully complied with and satisfied Arbitrator Kilroy’s

award.”)). Both positions fall short.

As an initial matter, Defendant errs in maintaining that the

Arbitration “Award set no deadline for reinstatement, nor did it

provide a deadline for the payment of lost wages/benefits” (Docket

Entry 20 at 7). (See id. at 10, 20; see also Docket Entry 17 at 1-

3.) Rather than leaving the timing to Defendant’s discretion, the

Arbitration Award contemplated immediate reinstatement, as it gave

Mr. Thorpe only ten days to submit an itemized statement of “all

interim earning to date of reinstatement.” (Docket Entry 1-7 at 6

(emphasis added).) In addition, the Arbitration Award effectively

mandated “payment of lost wages/benefits” (Docket Entry 20 at 7)

within 60 days. (See Docket Entry 1-7 at 6 (“The Arbitrator shall

retain jurisdiction in the matter for 60 days to determine any

disputes as to the above remedies . . . .”); see also Docket Entry

15-3 at 33 (“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.”).) Accordingly, Defendant violated the Arbitration

Award by not promptly reinstating and reimbursing Mr. Thorpe.

The question of whether Defendant violated the Arbitration

Award when it belatedly reinstated and thereafter disciplined Mr.

Thorpe raises a number of complicated issues. Arbitration exists

32

to ensure, inter alia, “the quick resolution of disputes and the

avoidance of the expense and delay associated with litigation.”

Apex Plumbing Supply, Inc. v. U.S. Supply Co., 142 F.3d 188, 193

(4th Cir. 1998). As such, parties are “obliged to raise at

arbitration all matters that [a]re relevant to the outcome of the

case.” United Food & Commercial Workers, Local 400 v. Marval

Poultry Co., 876 F.2d 346, 352 (4th Cir. 1989); see

also Washington-Baltimore Newspaper Guild, Local 35 v. Washington

Post Co., 442 F.2d 1234, 1238 (D.C. Cir. 1971) (“Unless parties are

bound by the records made before the arbitrators, the piecemeal or

staggered submission of evidence would be likely to erode the

effectiveness of arbitration as a speedy and efficient forum for

resolving labor disputes.” (internal quotation marks omitted)).

Furthermore, “parties may not seek a ‘second bite at the

apple’ simply because they desire a different outcome. ‘To permit

such attempts would transform a binding process into a purely

advisory one.’” Remmey v. PaineWebber, Inc., 32 F.3d 143, 146 (4th

Cir. 1994) (quoting Richmond, Fredericksburg & Potomac R.R. Co. v.

Transportation Commc’ns Int’l Union, 973 F.2d 276, 282 (4th Cir.

1992)). Therefore, “[the Fourth Circuit] and other courts have

consistently held that ‘a party to arbitration cannot voluntarily

engage in the arbitration of the issues submitted to the arbitrator

and then attack the award on grounds not raised before the

arbitrator.’” Rock-Tenn Co. v. United Paperworkers Int’l Union,

33

184 F.3d 330, 334 (4th Cir. 1999); accord District 17, United Mine

Workers of Am. v. Island Creek Coal Co., 179 F.3d 133, 140 (4th

Cir. 1999).

However, an arbitration award requiring reinstatement does not

forever protect an employee from future discipline. See Chicago

Newspaper Guild v. Field Enters., Inc., Newspaper Div., 747 F.2d

1153, 1156 (7th Cir. 1984). Rather, “[o]nce reinstated, [an

employee] would be in the same position as any other employee of

[the employer], and would be subject to any lawful disciplinary

action, layoff, or discharge.” Id. In appropriate circumstances,

therefore, an employer may discipline a reinstated employee based

“on independent grounds that were never before the arbitrator[]”

without “violat[ing an] earlier arbitration award[].” Fraternal

Order of Police, 780 F.3d at 243.1

Here, Plaintiff contends that, at the arbitration, “[t]lhe

parties . . . exhaustively litigated whether the September 7, 2016

incident provided just cause for Mr. Thorpe’s termination” (Docket

Entry 16 at 11), and “[blecause Arbitrator Kilroy . . . ordered

that Mr. Thorpe was entitled to his job notwithstanding the

12 Admittedly, this rule “may invite abuse by unscrupulous

employers who reinstate an employee for a token period of time only

and then take further questionable action against the employee,”

Field Enters., 747 F.2d at 1156 n.5, and raises difficult questions

regarding “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 arbitration award that orders reinstatement,”

Fraternal Order of Police, 780 F.3d at 243 n.5.

34

September 7, 2016 incident, Duke’s decision to fire him a second

time based on the same incident is a flagrant violation of the

[Arbitration A]ward” (id. at 13). In turn, Defendant maintains

that, although “Arbitrator Kilroy acknowledged that an incident at

the BP occurred [on September 7, 2016]” (Docket Entry 20 at 15),

“[h]e focused solely on the evidence concerning the time card

violation and the issue of whether [Mr.] Thorpe intentionally

falsified a record” (id.), such that his “2018 termination was for

independent grounds” (id. at 16). (See id. at 11-16.) Resolution

of these competing positions requires a close reading of the

Arbitration Award.

To begin, the parties and the Arbitration Award broadly

characterize the issue presented as: “Was there just cause to

discharge [Mr. Thorpe]?” (Docket Entry 1-7 at 4; accord Docket

Entry 15-3 at 3; Docket Entry 15-4 at 2; see also Docket Entry 1-7

at 3 (identifying as relevant contractual provision Article 5,

which states that Defendant possesses “the right to . . . suspend,

discipline and discharge employees for cause”).) In addition, the

Arbitration Award lists as a relevant contractual provision Rule 15

(see Docket Entry 1-7 at 3), which Plaintiff’s post-arbitration

brief identifies as the appropriate Work Rule “[i]f Duke wanted to

discipline Mr. Thorpe for the alleged misconduct giving rise to the

criminal charge” (Docket Entry 15-3 at 29). The Arbitration Award

also mentions the allegation of indecent exposure on September 7,

35

2016, and resulting criminal charge against Mr. Thorpe. (Docket

Entry 1-7 at 2.) Further, it discusses the reputational harm to

Duke “to have and hold an employee charged as [Mr. Thorpe] with a

particularly unpleasant and distasteful crime.” (Id. at 5.)

Finally, it notes the disposition of Mr. Thorpe’s indecent exposure

charge, including the State’s “Deferred Prosecution” and subsequent

dismissal of “the matter” in January 2017. (Id.) These

considerations, viewed in isolation, support the position that the

arbitration encompassed the alleged indecent exposure on September

7, 2016.

However, other aspects of the Arbitration Award make clear

that Arbitrator Kilroy construed the issue before him more

narrowly, focusing on whether Duke had “just cause” under Rule 13

to discharge Mr. Thorpe. In this regard, the Arbitration Award

states that, “[b]ased on the evidence, the arguments of the parties

and the [CBA,] the Arbitrator finds no just cause to discharge [Mr.

Thorpe] for a violation of Work Rule 13.” (Id. at 4 (emphasis

added).) It further proclaims: “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 . . . . The

Arbitrator’s function is to weigh the evidence of the alleged

violation of the work rule.” (Id. at 5.) Consistent with this

statement, the Arbitration Award addresses whether Mr. Thorpe’s

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conduct!? violated Work Rule 13 (which provides for immediate

discharge (see Docket Entry 15-3 at 5; see also Docket Entry 1-3 at

4)) or, instead, Work Rule 3 (which provides for progressive

discipline (see Docket Entry 15-3 at 5; see also Docket Entry 1-3

at 2)). (Docket Entry 1-7 at 4-6.) Finally, although it discusses

harm to Defendant’s reputation from Mr. Thorpe’s receipt of a

criminal charge, the Arbitration Award neither addresses the “well-

defined parameters for when arrests for off-duty misconduct can

support an employee’s termination” (Docket Entry 15-3 at 29)

(which, according to Plaintiff, requires proof, inter alia, that

the employee “actually engaged in the misconduct” (id. at 30)) nor

analyzes the applicability of Work Rule 15 (which, in relevant

part, requires a finding that the employee “commi[tted] a work-

related crime while off campus” (Docket Entry 1-7 at 3)). (See id.

at 4-6.)

In sum, Arbitrator Kilroy construed the arbitral issue as

whether Duke had just cause under Rule 13 to discharge Mr. Thorpe

for his actions on September 7, 2016. “The arbitrator’s

interpretation of the scope of the issue submitted is entitled to

deference[] ... .”% Richmond, Fredericksburg & Potomac R.R., 973

F.2d at 280. Finding that Defendant lacked just cause in

13 In particular, the Arbitration Award focuses on the

duration and timing of Mr. Thorpe’s absence, as well as on his

“swip[ling] in. . . and swip[ing] out” at work on September 7, 2016

(Docket Entry 1-7 at 5). (See id. at 4-6.)

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discharging Mr. Thorpe under Rule 13, the Arbitration Award ordered

Defendant to reinstate Mr. Thorpe and make him whole for all lost

wages and benefits, subject to offset from any interim earnings.

(See Docket Entry 1-7 at 4, 6.) Effective May 1, 2018, Defendant

reinstated Mr. Thorpe to the payroll and paid him his lost wages.

(See Docket Entry 15-5 at 1; Docket Entry 15-6 at 1; Docket Entry

17-1 at 3; Docket Entry 15-10, ¶¶ 21, 24.) Defendant continued to

pay Mr. Thorpe until it terminated him again on July 13, 2018.

(See Docket Entry 17-1 at 4; Docket Entry 15-10, ¶ 24.) By

returning Mr. Thorpe to the active payroll and paying all back pay,

Defendant belatedly complied with the Arbitration Award’s order to

reinstate Mr. Thorpe. See Fraternal Order of Police, 780 F.3d at

242 (“The [union] recognizes that [the employer] initially complied

with the arbitration awards. For, at oral argument before us and

before the district court, the [union] acknowledged that placing

the [employees] on paid administrative leave constituted at least

temporary reinstatement.” (emphasis in original)).14

“The question, then, is whether terminating [Mr. Thorpe for an

alleged pattern of sexual misconduct under Rule 17] constitutes

14 Although Defendant suspended Mr. Thorpe effective April

26, 2018 (Docket Entry 15-6 at 1), and reinstated him effective May

1, 2018 (see Docket Entry 15-5 at 1), the parties treat the

suspension and reinstatement as simultaneous events (see Docket

Entry 15-1, ¶ 16; Docket Entry 16 at 8; Docket Entry 17 at 4;

Docket Entry 17-1 at 3), raising no arguments that the antecedent

nature of the suspension affected the subsequent reinstatement.

(See generally Docket Entries 16, 18, 20, 24.)

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non-compliance with the [A]rbitration [A]ward[].” Id. Defendant

maintains that the subsequent termination involves allegations of

indecent exposures to separate individuals on separate dates, not

just the alleged indecent exposure incident on September 7, 2016.

(See, e.g., Docket Entry 17-1 at 7; Docket Entry 20-1, ¶¶ 9, 10;

but see Docket Entry 17 at 4-5 (arguing, in Defendant’s Dismissal

Motion memorandum, that additional alleged incidents involved the

same individual as incident on September 7, 2016).)

Plaintiff counters that Defendant’s post-arbitration brief

argues that separate exposure incidents occurred. (See Docket

Entry 24 at 2-3 (“At the arbitration, Duke relied in part on Duke

Police Officer Holland’s hearsay regarding accusations raised by

the gas station attendant, including his statement that she claimed

Mr. Thorpe had exposed himself on multiple occasions.” (citing

Docket Entry 15-4 at 6).) Although Defendant’s post-arbitration

brief does state that a second incident occurred, it cites no

evidence on point (see Docket Entry 15-4 at 6), and its description

of the alleged second incident conflicts with the evidence before

this Court (compare id. (asserting that second exposure occurred

when Mr. Thorpe returned to the BP after September 7, 2016),

with (Docket Entry 1-7 at 2 (stating that no exhibition occurred on

that occasion), and Docket Entry 20-1, ¶¶ 9, 10 (asserting that

additional alleged exposures occurred “in the past”).) Moreover,

nothing in the current record suggests that the other alleged

39

exposures involved any time card or other record-related issues

implicating Work Rule 13. (See, e.g., Docket Entry 20-1, ¶¶ 9, 10;

Docket Entry 17-1 at 3-4, 6-8.)

Accordingly, at least some portion of the current dispute may

fall “outside the scope of what was before the arbitrator,”

Fraternal Order of Police, 780 F.3d at 243 n.4, as Arbitrator

Kilroy defined the issue (see Docket Entry 1-7 at 4). Under these

circumstances, rather than attempting to resolve whether and to

what extent Defendant’s subsequent discipline of Mr. Thorpe

involved the same or related matter(s) encompassed by the

Arbitration Award, the Court should find that Plaintiff’s 2018

“grievance[, which asserts that Defendant violated the Arbitration

Award and CBA (see Docket Entry 17-1 at 9)] belong[s] before [an

arbitrator], not a federal court,” Fraternal Order of Police, 780

F.3d at 244.15

15 Given the above-discussed ambiguity in the record

regarding the basis for the second termination and the absence of

controlling authority on “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 arbitration award that orders

reinstatement,” Fraternal Order of Police, 780 F.3d at 243 n.5, the

parties likely would have to engage in significant discovery,

followed by more briefing (and perhaps an evidentiary hearing), if

the Court chose to go further. (See Docket Entry 11 at 2 (stating,

in the parties’ Joint Rule 26(f) Report, that, “[s]hould the Court

conclude that discovery is necessary following the submission of

dispositive motions, the parties request they be permitted to hold

a supplemental 26(f) conference at that point to discuss and submit

a discovery plan”); see also Text Order dated July 31, 2018

(adopting Joint 26(f) Report).) Resolution of issues pertaining to

the second termination — already raised by the Union in a separate

(continued...)

40

III. Attorney’s Fees

Finally, “Plaintiff respectfully moves the Court to award it

reasonable attorneys’ fees and costs incurred in this litigation.”

(Docket Entry 15 at 1.) A court may award attorney’s “fees in

actions brought under [Section] 301” of the Labor Management

Relations Act in appropriate circumstances, Marval, 876 F.2d at

350, namely, where a party “unjustifiably refuses to abide by an

arbitrator’s award,” Media Gen. Operations, Inc. v. Richmond

Newspapers Prof’l Ass’n, 36 F. App’x 126, 133 (4th Cir. 2002). Two

standards govern this assessment:

Where a challenge goes to the fundamental issues of

arbitrability or of whether an arbitration award “draws

its essence” from the contract, the standard for

assessing its justification is . . . the relatively

lenient one of whether it has “any arguable basis in

law.” Because these challenges go to fundamental

questions of the arbitrator’s very power to act, they

must be considered sufficiently “justified” for this

purpose unless there is literally no reasonably arguable

legal support for them.

Where, however, the challenge goes not to issues of

the fundamental power of an arbitrator to make an award

but to the merits of an arbitrator’s award as made, the

standard of justification is much more stringent.

Indeed, because such challenges, if undeterred,

inevitably thwart the national labor policy favoring

arbitration, they must be considered presumptively

unjustified.

Marval, 876 F.2d at 351 (citation omitted).

15(...continued)

grievance (see Docket Entry 17-1 at 4) — should proceed much more

rapidly under the CBA. (See Docket Entry 1-1 at 13-15 (detailing

procedures and timeframes for grievance hearings and arbitration).)

41

Defendant argues against awarding attorney’s fees on the

grounds that “[t]here is no evidence of bad faith in the present

case, and [Defendant] clearly has ‘reasonably arguable legal

support for its actions.’” (Docket Entry 20 at 21.) However, the

“relatively lenient” standard of whether Defendant acted in bad

faith or without an arguable basis in law does not govern this

case. Marval, 876 F.2d at 351. Defendant does not challenge “the

fundamental issues of arbitrability or of whether [the A]rbitration

[A]ward ‘draws its essence’ from the [CBA],” so the “presumptive

non-justification” standard applies. Id.; see also id. at 352

(explaining that “[t]he critical distinction is [whether the

defendant’s challenge is] to an arbitrator’s award as made rather

than to threshold arbitrability or to a total departure from the

labor contract’s ‘essence’”).

Here, Defendant contended that “[t]he Award did not set any

deadline for the reinstatement to occur” or “for the payment of

lost wages” (Docket Entry 17 at 1-2). As discussed above, the

Arbitration Award (read reasonably) contemplated immediate

reinstatement and prompt repayment of lost wages, with the outer

limits for such actions set at 10 and 60 days from the date of the

Arbitration Award. (See Docket Entry 1-7 at 6.) Rather than

complying with those directives, “Duke refused to reinstate Mr.

Thorpe” (Docket Entry 15-1, ¶ 15), forcing Plaintiff to “initiate[]

this legal action” (id., ¶ 16; see generally Docket Entry 1) to

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secure compliance with the Arbitration Award. Accordingly,

Plaintiff remains entitled to its attorney’s fees through May 1,

2018, the date that Defendant reinstated and repaid Mr. Thorpe (see

Docket Entry 15-5 at 1).

CONCLUSION

A live controversy exists regarding Defendant’s compliance

with the Arbitration Award. Defendant did not timely comply with

the Arbitration Award’s requirement that Defendant reinstate Mr.

Thorpe and reimburse him for his lost wages. However, Defendant

belatedly reinstated Mr. Thorpe and paid all accrued backpay, as

well as his salary through the date it terminated him a second

time. An arbitrator, rather than this Court, should address

Plaintiff’s objections to that subsequent discipline.

IT IS THEREFORE RECOMMENDED that the Dismissal Motion (Docket

Entry 13) and Confirmation Motion (Docket Entry 15) be granted in

part and denied in part as follows: (1) Defendant’s Rule 12(b)(1)

request to dismiss this lawsuit as moot be denied; (2) Plaintiff’s

request to confirm the Arbitration Award be granted insofar as

Defendant failed to timely reinstate and repay Mr. Thorpe;

(3) Plaintiff’s request to confirm the Arbitration Award be denied

insofar as it seeks a finding that Defendant’s 2018 discipline of

Mr. Thorpe contravened the Arbitration Award, as, under the

circumstances of this case, that issue belongs before an

arbitrator; and (4) Plaintiff be awarded reasonable attorney’s fees

43

attributable to its litigation efforts through May 1, 2018, as

established pursuant to procedures provided under Federal Rule of

Civil Procedure 54(d)(2).

This 6th day of September, 2019.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

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