2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-26-2011

Reginald Roberts v. Risa Vetri Ferman

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-1481

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Recommended Citation

"Reginald Roberts v. Risa Vetri Ferman" (2011). 2011 Decisions. Paper 473.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 11-1481

____________

REGINALD A. ROBERTS,

 Appellant

v.

RISA VETRI FERMAN; MONTGOMERY COUNTY;

JAMES MATTHEWS; JOSEPH HOEFFEL; BRUCE L. CASTOR, JR.;

OSCAR P. VANCE, JR.; SAMUEL GALLEN; STEPHEN FORZATO;

EDMUND JUSTICE; CAROLYN T. CARLUCCIO; MARK BERNSTIEL;

TONI LUTER, SUED INDIVIDUALLY HELD LIABLE JOINT AND SEVERALLY

____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil Action No. 2-09-cv-04895)

Magistrate Judge: Honorable Luis Felipe Restrepo

____________

Submitted Pursuant to Third Circuit LAR 34.1(a)

September 19, 2011

Before: FISHER, HARDIMAN and GREENAWAY, Jr., Circuit Judges.

(Filed: September 26, 2011)

____________

OPINION OF THE COURT

____________
2

FISHER, Circuit Judge.

Reginald Roberts‟s motion for a preliminary injunction to order Montgomery 

County to participate in arbitration was denied by the District Court. Roberts now 

appeals, arguing the District Court erred in holding that the Collective Bargaining 

Agreement and 43 P.S. § 217 do not entitle him to arbitration. For the following reasons, 

we will affirm the District Court.

I.

We write primarily for the parties who are familiar with the factual context and 

legal history of this case. Therefore, we will set forth only those facts necessary to our 

analysis.

On March 15, 1999, Roberts began employment as a Montgomery County 

Detective. As a County Detective, Roberts was part of a Collective Bargaining 

Agreement (“Agreement”) between Montgomery County and the Montgomery County 

Detective Bureau. The Agreement included a “Grievance and Arbitration Procedure,” 

which outlined a two-step process to be applied to disputes concerning the application or 

interpretation of the Agreement and matters of discipline. Step one of the procedure 

directed employees to contact the department head concerning their grievance. If a 

resolution was not reached in step one, step two allowed the employee to appeal the 

grievance to the row officer (District Attorney of Montgomery County) for consideration.
3

On August 8, 2008, Roberts was terminated from his position with the 

Montgomery County Detective Bureau. Rather than follow the two-step procedure 

outlined in the Agreement, Roberts contacted the County in October 2008, requesting 

arbitration concerning his termination. On November 17, 2008, the County declined the 

request to participate in arbitration.

Roberts filed this action against Montgomery County in October 2009, alleging 

employment discrimination and retaliation pursuant to Title VII of the Civil Rights Act, 

42 U.S.C. § 2000e et seq., and the Pennsylvania Human Relations Act, 43 P.S. § 951 et 

seq. Roberts also alleged violations of his federal civil rights pursuant to 42 U.S.C. 

§ 1983. Approximately one year after filing suit, Roberts filed his Fed. R. Civ. P. 65 

Petition, calling for injunctive relief to order the County to participate in arbitration. He 

sought to compel the County to engage in arbitration over the interpretation of the 

Agreement, denial of heart and lung benefits, the proper value or amount of benefits due 

Roberts, and his termination. A Magistrate Judge for United States District Court for the 

Eastern District of Pennsylvania1held that Roberts failed to show he was entitled to 

arbitration under the Agreement or 43 P.S. § 217, and the preliminary injunction was 

denied. Roberts filed a timely notice of appeal from the decision.

 

1

The parties consented to the United States magistrate judge‟s authority pursuant 

to 28 U.S.C.A. § 636(c) and Fed. R. Civ. P. 73.
4

II.

The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction 

pursuant to 28 U.S.C. § 1292(a).2 We review the District Court‟s conclusions of law 

under a plenary standard, findings of fact for clear error, and the decision to grant or deny

a preliminary injunction for abuse of discretion. Rogers v. Corbett, 468 F.3d 188, 192 

(3d Cir. 2006).

III.

Roberts argues that the District Court‟s denial of a preliminary injunction was in 

error. In seeking a preliminary injunction to compel arbitration, the party must 

demonstrate:

(1) it has a likelihood of success on the merits, (2) it will suffer irreparable 

harm if the injunction is denied, (3) granting preliminary relief will not 

result in even greater harm to the nonmoving party, and (4) the public 

interest favors such relief.

Rogers, 468 F.3d at 192 (internal quotation marks omitted). All four elements must be 

satisfied in order to grant the injunction. Maldonado v. Houstoun, 157 F.3d 179, 184 (3d 

 

2

The County claims this Court lacks jurisdiction under 28 U.S.C. §1292(a) due to 

the Supreme Court‟s decision in Carson v. Am. Brands, Inc., 450 U.S. 79 (1981). In 

Carson, the Supreme Court held, “[f]or an interlocutory order to be immediately 

appealable under §1292(a)(1) . . . a litigant must show more than that the order has the 

practical effect of refusing an injunction,” by satisfying a two prong test. Id at 84. This 

case is distinguishable however; it involves an express denial of injunctive relief rather 

than merely the practical effect of a denial. Thus Roberts need not satisfy the Carson test 

in order to have jurisdiction under §1292(a). See OFC Comm Baseball v. Markell, 579 

F.3d 293, 298 (3d Cir. 2009) (finding the appellant need not satisfy any jurisdictional 

hurdle to appeal from the denial of an injunction).
5

Cir. 1998). The District Court concluded that a preliminary injunction was not warranted 

because Roberts could not demonstrate a likelihood of success on the merits. We agree.

To demonstrate a likelihood of success on the merits, Roberts must show that 43 

P.S. § 217 and/or the Collective Bargaining Agreement allows for arbitration of Roberts‟ 

grievance. Turning first to the language of the statute, while 43 P.S. § 217 clearly allows 

for interest arbitration, courts have also found grievance arbitration to fall within its 

scope. See Moon Twp. v. Police Officers of Moon Twp., 498 A.2d 1305, 1311-12 (Pa. 

1985); Chirico v. Bd. of Supervisors for Newton Twp., 470 A.2d 470, 474 (Pa. 1983). 

However, if the Collective Bargaining Agreement has in place a grievance mechanism 

that is devoid of arbitration, arbitration will not be imposed by 43 P.S. § 217. W. 

Lampeter Twp. v. Police Officers of W. Lampeter Twp., 598 A.2d 1049, 1051 (Pa 

Commw. Ct. 1991).

The pertinent sections of the Agreement between Montgomery County and its 

detectives read:

18. Grievance and Arbitration Procedure

(a) A grievance shall be defined as any dispute involving the application or 

interpretation of the Agreement or in matters of discipline....

GRIEVANCE PROCEDURE

STEP #1

A. Department Head: If the employee and his/her immediate supervisor 

cannot resolve a grievance informally, the employee shall send a written 

statement (E-mail is not acceptable nor proper) of his/her grievance to 

the Department Head within fifteen (15) calendar days of when the 
6

employee becomes aware of the grievance. The Department Head

receiving the written grievance shall meet with the employee and their 

representative if so desired, within ten (10) days, and other appropriate 

persons in a good faith effort to resolve this grievance. The Department 

Head shall give the employee a written decision within ten (10) calendar 

days following the meeting.

STEP #2

A. Row Officer: (District Attorney of Montgomery County) In the event 

that no satisfactory solution is reached at the first step, the employee 

may appeal the grievance to the District Attorney or his/her designee. 

Such an appeal must be made within ten (10) calendar days after the 

rendering of the decision as a result of the first step or after the decision 

at the first step should have been made. The employee shall make a

written statement of his/her grievance and why the decision, if one is 

rendered, is wrong, and if no decision is rendered, what the employee 

feels the decision should be. The Row Officer or his/her designee will 

convene a fact finding meeting of the involved parties within fifteen 

(15) days of receiving and written grievance. The Row Officer or 

his/her designee shall then render a decision within sixty (60) calendar 

days, unless extended by mutual agreement for no more than thirty (30) 

days.

B. This is the final step of the grievance procedure and there will be no 

further remedy once the decision is handed down by the Row Officer or 

his/her designee.

Entire Agreement. The Memorandum of Understanding, together with all 

other County personnel publications, unless specifically contrary to the 

Arbitration Award of July 5, 1994 or the Supplemental Award of April 18, 

1995, shall constitute the entire Agreement between the parties and there 

are no verbal understandings, conditions, or stipulations aside from the 

terms set forth herein and in any said publications which are relevant to this 

Agreement.

Roberts claims that the Agreement allows for arbitration because both the title to 

section 18 and the reference to an “Arbitration Award” imply such. Furthermore, 

Roberts argues that the District Court failed to demonstrate with “positive assurance that 

the arbitration clause is not susceptible of an interpretation that covers the asserted 
7

dispute.” AT&T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 650 (1986). 

We disagree.

We recognize the strong federal policy of using arbitration to resolve labor 

disputes. See, e.g., Rite Aid of Pa., Inc. v. United Food & Commercial Workers Union, 

Local 1776, 595 F.3d 128, 131 (3d Cir. 2010); United Parcel Serv., Inc. v. Int’l Bhd. of 

Teamsters, Local Union No. 430, 55 F.3d 138, 141 (3d Cir. 1995). However, “a party 

cannot be required to submit to arbitration unless he has „agreed to submit.‟” In re Cont’l 

Airlines, Inc., 484 F.3d 173, 182 (3d Cir. 2007) (quoting AT&T Techs., 475 U.S. at 648).

Here, despite the Agreement‟s title to section 18 and mention of an Arbitration 

Award, the grievance procedure does not allow for arbitration. Rather, “the Agreement 

clearly provides for a two-step grievance procedure [and] . . . [h]aving freely bargained 

for the grievance procedure, the parties are bound by it.” W. Lampeter Twp., 598 A.2d at 

1051. Furthermore, the Agreement is clear that the document, including the grievance 

procedure, represents the parties‟ entire agreement. As the Agreement contains a 

grievance procedure that does not include arbitration, 43 P.S. § 217 does not provide 

Roberts with a right to arbitration. Id.

Because the first element needed for a preliminary injunction is not satisfied, 

Roberts‟ request must be denied. Moreover, the District Court properly exercised its 

discretion in declining to hold an evidentiary hearing because the language of the 
8

Agreement is not disputed and its meaning is clear. See Kos Pharmaceuticals, Inc. v. 

Andrx Corp., 369 F.3d 700, 719 (3d. Cir. 2004).

IV.

For the foregoing reasons, we will affirm the judgment of the District Court.