PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 19-2754

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BRADLEY G. DARRINGTON; VAL DARRINGTON

v.

MILTON HERSHEY SCHOOL,

Appellant

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On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil No. 5-18-cv-04265)

District Judge: Honorable Gerald J. Pappert

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Argued: April 1, 2020

Before: GREENAWAY, JR., PORTER, and MATEY, 

Circuit Judges.

(Filed: May 6, 2020)

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Casey A. Coyle

Michael D. Jones [Argued]

Rachel E. King

ECKERT SEAMANS CHERIN & MELLOTT

50 South 16th Street

Two Liberty Place, 22nd Floor

Philadelphia, PA 19102

Mark A. Fontana

ECKERT SEAMANS CHERIN & MELLOTT

213 Market Street, 8th Floor

Harrisburg, PA 17101
2

Counsel for Appellant Milton Hershey School

Katherine C. Oeltjen [Argued]

Fernando I. Rivera

CONSOLE MATTIACCI LAW

1525 Locust Street

9th Floor

Philadelphia, PA 19102

Counsel for Appellees Bradley G. Darrington and Val 

Darrington

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OPINION OF THE COURT

____________

PORTER, Circuit Judge.

Bradley and Val Darrington sued the Milton Hershey 

School (“MHS”), their former employer, in the District Court 

for employment discrimination and retaliation. MHS moved to 

compel arbitration under the collective bargaining agreement

(“CBA”) it entered into with the Darringtons’ Union. The 

District Court denied the motion. Because the CBA clearly and 

unmistakably waives a judicial forum for the Darringtons’ 

statutory discrimination claims, we will reverse.

I

MHS is a free, private, non-denominational school that 

houses and teaches students from diverse social and economic 

backgrounds. MHS hired the Darringtons to work as full-time 

houseparents in one of its student homes. While working at 

MHS, the Darringtons were members of the Bakery, 

Confectionary, Tobacco Workers & Grain Millers 

International Local Union 464 (“Union”).
3

A

The Union is “the exclusive collective bargaining 

representative for all full-time houseparents . . . employed by 

[MHS] . . . regarding wages, hours[,] and other terms and 

conditions of employment.” App. 81. Thus, when the Union 

entered into the CBA with MHS, the CBA bound its members, 

including the Darringtons.

Section 9.1 of the CBA details the grievances governed 

by the CBA’s arbitration procedure. The CBA’s arbitration 

provision covers “any dispute arising out of [its] terms and 

conditions,” including the “discipline or discharge” of Union 

members. App. 92. A grievance includes “any dispute alleging 

discrimination against any [Union members] based upon 

membership in any protected categories under federal or state 

law and/or as set forth in Section 10.1 of [the CBA].” Id. 

Section 10.1 contains the CBA’s non-discrimination provision, 

which states that “[t]he Union and [MHS] will not discriminate 

against employees or applicants on the basis of race, color, 

religion, age (40 and above), sex, national origin, disability 

status, and membership or non-membership in the Union.” Id.

at 96. 

MHS and the Union agreed “that the Union, on behalf 

of itself and the allegedly aggrieved [Union members], waives, 

releases[,] and discharges any right to institute or maintain any 

private lawsuit alleging employment discrimination in any 

state or federal court regarding the matters encompassed within 

this grievance procedure.” Id. at 93. The CBA “sets forth the 

exclusive procedure for resolution of disputes arising out of the 

terms and conditions of [the CBA] or the discipline or 

discharge of” a Union member. Id.

In short, if aggrieved Union members are unsatisfied 

with the resolution of their disputes after discussions with 

MHS officials, “the Union [may seek] further consideration of 

the grievance” by submitting the grievance to arbitration on 

their behalf. Id. at 94.

B

In their role as houseparents, the Darringtons attended 

and participated in religious programming offered by MHS.
4

Throughout their employment, the Darringtons voiced their 

concern to MHS administrators that some of the programming 

was discriminatory and offensive. Believing that a chapel 

service and sermon constituted “child abuse,” Bradley 

Darrington filed a report with the local state agency for 

children and youth services. App. 24. The Department 

dismissed the report the next day

Bradley then filed a charge of discrimination with the 

Equal Employment Opportunity Commission and the 

Pennsylvania Human Relations Commission alleging that 

MHS’s mandatory religious programming discriminated 

against him based on his religion. Less than two months after 

Bradley filed the charges, MHS fired the Darringtons. The 

Darringtons then filed two more charges of discrimination with 

the EEOC and the PHRC.

After receiving right-to-sue letters from the EEOC on 

all three charges, the Darringtons filed a complaint in the 

District Court alleging discrimination and retaliation in 

violation of Title VII, 42 U.S.C. § 2000e, et seq., and the 

Pennsylvania Human Relations Act, 43 Pa. Stat. §§ 951–63. 

MHS moved to compel arbitration under the CBA. The District 

Court denied the motion because it found that the CBA “does 

not clearly and unmistakably waive [the Darringtons’] right to 

bring their statutory discrimination [(including retaliation)] 

claims in federal court.” App. 10–11. MHS timely appealed.

II

The District Court had subject-matter jurisdiction under 

28 U.S.C. §§ 1331 and 1367. We have appellate jurisdiction

over orders denying a motion to compel arbitration under the 

Federal Arbitration Act, 9 U.S.C. § 16(a)(1)(A)–(B). See 

Harris v. Green Tree Fin. Corp., 183 F.3d 173, 176 (3d Cir. 

1999). We review de novo the arbitrability of the Darringtons’ 

claims. Jones v. Does 1–10, 857 F.3d 508, 511 n.2 (3d Cir. 

2017) (citation omitted).

III

A collective bargaining agreement can waive a judicial 

forum for union members’ statutory claims only if the waiver 

is clear and unmistakable. See Wright v. Universal Mar. Serv. 
5

Corp., 525 U.S. 70, 79–82 (1998). The Supreme Court and this 

Court have not defined the contours of the clear-andunmistakable-waiver standard. Using ordinary tools of 

contract interpretation, we find that the CBA clearly and 

unmistakably waived the Darringtons’ right to a judicial forum 

for their statutory claims.

A

We must answer “the question of whether the parties 

agreed to arbitrate.” AT&T Tech., Inc. v. Commc’ns Workers 

of Am., 475 U.S. 643, 649 (1986). And when deciding whether 

to compel arbitration, we must consider the enforceability and 

the scope of the contract’s arbitration provision. See In re 

Remicade (Direct Purchaser) Antitrust Litig., 938 F.3d 515, 

519 (3d Cir. 2019) (citation omitted).1

Thus, we ask “whether the merits-based dispute in 

question falls within the scope of that valid agreement.” 

Century Indem. Co. v. Certain Underwriters at Lloyd’s, 

London, 584 F.3d 513, 527 (3d Cir. 2009) (citation omitted). 

The parties dispute only whether the Darringtons’ merits-based 

disputes—their statutory discrimination claims—“fall[ ] 

within the scope of” the CBA’s arbitration provision. See id.2

1 Neither party disputes the enforceability of the CBA’s 

arbitration provision, so we need not address it. See Durham 

Life Ins. Co. v. Evans, 166 F.3d 139, 159 n.15 (3d Cir. 1999). 

In any event, “so long as the collective bargaining agreement 

explicitly states that an employee must resolve his statutory as 

well as his contractual rights through the grievance procedure,” 

the arbitration provision is enforceable. See Vega v. New 

Forest Home Cemetery, LLC, 856 F.3d 1130, 1134 (7th Cir. 

2017) (citing 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 258–

59, 274 (2009)).

2 Because the Federal Arbitration Act established “a liberal 

federal policy favoring arbitration agreements,” Epic System

Corp. v. Lewis, 138 S. Ct. 1612, 1621 (2018) (citation omitted), 

we generally apply a “presumption of arbitrability” when 

reviewing arbitration provisions. Wright v. Universal Mar. 

Serv. Corp., 525 U.S. 70, 78 (1998) (citations omitted). The 

presumption of arbitrability is not relevant here, however, 
6

1

A federal-statutory-discrimination dispute falls within 

the scope of a collective bargaining agreement’s arbitration 

provision “when (1) the arbitration provision clearly and 

unmistakably waives the employee’s ability to vindicate his or 

her federal statutory right in court; and (2) the federal statute 

does not exclude arbitration as an appropriate forum.” Jones, 

857 F.3d at 512 (citing 14 Penn Plaza LLC v. Pyett, 556 U.S. 

247, 260 (2009)). Title VII claims are arbitrable. Seus v. John 

Nuveen & Co., 146 F.3d 175, 182 (3d Cir. 1998) (collecting 

cases); see also 14 Penn Plaza, 556 U.S. at 256 n.5 (suggesting 

that Title VII claims are arbitrable).

2

When considering the Darringtons’ state-law PHRA 

claims, we need not consider whether the PHRA excludes 

arbitration as an appropriate forum. That is so because the FAA 

preempts “any state rule” that facially or covertly prohibits 

arbitration. See Kindred Nursing Ctrs. Ltd. P’ship v. Clark, 137 

S. Ct. 1421, 1426 (citing AT&T Mobility LLC v. Concepcion, 

563 U.S. 333, 341 (2011)); see also Concepcion, 563 U.S. at 

343 (noting that although the FAA “preserves generally 

applicable contract defenses, nothing in it suggests an intent to 

preserve state-law rules that stand as an obstacle to the 

accomplishment of the FAA’s objectives”).3

We have not decided whether the clear-andunmistakable-waiver standard applies to the arbitrability of 

state law claims—such as those brought under the PHRA. See, 

e.g., Maldonado v. SecTek, Inc., No. 19-693, 2019 WL 

3759451, at *6 (E.D. Pa. Aug. 8, 2019). The Supreme Court 

because it does not apply to waiver of a judicial forum for 

statutory claims. See id.

3 Regardless, under Pennsylvania law, if a valid arbitration 

agreement exists and a dispute falls within the agreement’s 

scope, then the dispute must be arbitrated. See Messa v. State 

Farm Ins. Co., 641 A.2d 1167, 1168 (Pa. 1994); see also 42 

Pa. Cons. Stat. § 7304. The Darringtons do not contend that the 

arbitration agreement is invalid. So their PHRA claims are 

arbitrable if they fall within the CBA’s scope.
7

has said that the FAA preempts state laws that stand “as an 

obstacle to the accomplishment and execution of the full 

purposes and objectives” of the FAA. Concepcion, 563 U.S. at 

352. So if a state law for the waiver of a judicial forum provides

a more onerous standard than the clear-and-unmistakablewaiver standard, then it is preempted by the FAA. 

To answer the question of whether the FAA preempts 

Pennsylvania law regarding the standard for assessing the 

waiver of a judicial forum for state statutory rights, we first 

look to Pennsylvania court decisions in that realm. Based on 

this Court’s review, however, Pennsylvania has not explained 

what standard governs the waiver of a judicial forum for state 

statutory claims in a CBA.

Because of the Supreme Court’s FAA preemption 

decisions, we know that Pennsylvania could adopt the clearand-unmistakable-waiver standard, the most exacting standard 

possible. As we explain below, even under this standard, the 

Darringtons waived a judicial forum for their state claims 

under the PHRA.

The Supreme Court’s discussion in Wright supports this 

conclusion. Wright articulated the clear-and-unmistakablewaiver standard while talking about “statutory claims” 

generally and not just federal statutory rights. See generally

Wright, 525 U.S. at 79–81. We see no reason to review the 

waiver of a judicial forum for state statutory claims under a 

standard different from that for the waiver of a judicial forum 

for federal statutory claims.
8

B

We turn to the primary question: whether the CBA 

clearly and unmistakably waives the Darringtons’ right to 

vindicate their statutory antidiscrimination rights in court.4

The clear-and-unmistakable-waiver standard ensures 

that “very general” arbitration clauses cannot waive a judicial 

forum for vindication of statutory rights. See Wright, 525 U.S. 

at 80. Rather, a clear and unmistakable waiver of a judicial 

forum for “statutory antidiscrimination claims [must] be 

‘explicitly stated’ in the collective bargaining agreement.” 14 

Penn Plaza, 556 U.S. at 258 (quoting Wright, 525 U.S. at 80).

In Wright, the Court concluded that a collective 

bargaining agreement that required arbitration of “matters 

under dispute” did not clearly and unmistakably waive a 

judicial forum for a union member’s claims under the 

Americans with Disabilities Act. 525 U.S. at 80. Three reasons 

animated the Court’s decision. First, the “very general” phrase 

“matters under dispute” could be interpreted to refer only to 

contractual matters. Id. at 80. Second, the rest of the collective 

bargaining agreement did not explicitly incorporate statutory 

antidiscrimination requirements. Id. Third, the collective 

bargaining agreement did not require compliance with the 

ADA. Id. at 81.5

4 The parties assume that Pennsylvania contract-interpretation 

principles govern the CBA, and we agree. See, e.g., In re 

Remicade, 938 F.3d at 523 n.5 (interpreting a collective 

bargaining agreement under New Jersey law because the 

parties assumed New Jersey law applied). Pennsylvania’s 

contract-interpretation rules require us to provide the contract’s 

“clear and unambiguous” words with their “commonly 

accepted and plain meaning.” LJL Transp., Inc. v. Pilot Air 

Freight Corp., 962 A.2d 639, 647 (Pa. 2009) (citations 

omitted).

5

In a recent case, 14 Penn Plaza, the Supreme Court did not 

address whether the arbitration provision—requiring that “[a]ll 

[discrimination claims under federal or state law] shall be 

subject to the grievance and arbitration procedure”—was a 

clear and unmistakable waiver. 556 U.S. at 252.
9

Some of our sister circuits have developed bright-line 

approaches for identifying clear and unmistakable waivers. 

One approach finds a clear and unmistakable waiver when a 

collective bargaining agreement “explicitly mentions

employee rights under [the relevant statute] or any other 

federal anti-discrimination statute[.]” Quint v. A.E. Staley Mfg. 

Co., 172 F.3d 1, 9 (1st Cir. 1999); see also Cavallaro v. UMass 

Mem’l Healthcare, Inc., 678 F.3d 1, 7 n.7 (1st Cir. 2012) 

(explaining that the clear-and-unmistakable-waiver standard 

required “something closer to specific enumeration of the 

statutory claims to be arbitrated”).6

Another approach finds a clear and unmistakable waiver

when (1) an arbitration provision requires employees “to 

submit to arbitration all federal causes of action arising out of 

their employment,” Carson v. Giant Food, Inc., 175 F.3d 325, 

331 (4th Cir. 1999), or (2) a general arbitration clause 

“referring to ‘all disputes’” is accompanied by “an ‘explicit 

incorporation of statutory antidiscrimination requirements’ 

elsewhere in the contract,” id. at 332 (quoting Wright, 525 U.S. 

6 The Sixth and Seventh Circuits also endorse this approach. 

See, e.g., Bratten v. SSI Servs., Inc., 185 F.3d 625, 631 (6th Cir. 

1999) (explaining that “a statute must specifically be 

mentioned in a [collective bargaining agreement] for it to even 

approach” the clear-and-unmistakable-waiver standard); Vega, 

856 F.3d at 1135 (holding that a collective bargaining 

agreement did not clearly and unmistakably waive a judicial 

forum for rights under the Fair Labor Standards Act when 

neither the arbitration provision nor the collective bargaining 

agreement referenced the FLSA).
10

at 80); see also Aleman v. Chugach Support Servs., Inc., 485 

F.3d 206, 216 (4th Cir. 2007) (citations omitted).7

In our view, Wright requires nothing more than it says. 

The clear-and-unmistakable-waiver standard is satisfied if a 

collective bargaining agreement, interpreted according to

applicable contract-interpretation principles, clearly and 

unmistakably waives a judicial forum for statutory claims. An 

arbitration provision’s waiver of a judicial forum for statutory 

claims must merely be “particularly clear” and “explicitly 

stated.” Wright, 525 U.S. at 79–80 (citation omitted). 

The bright-line approaches fashioned by our sister 

circuits may create clear expectations for bargaining parties 

and may prompt precise contract drafting. Indeed, it may be 

helpful for a court’s analysis if bargaining parties specifically 

list the statutes for which they intend to waive a judicial forum. 

But that approach may also invite drafting mistakes and cause 

unintended gaps as the statutory landscape changes. The 

standard enunciated in Wright does not require magic words or 

prescribe any bright-line approach requiring enumeration of 

statutes, so we decline to adopt one.

Our approach finds support in our recent decision in 

Jones v. Does 1–10. In Jones, the collective bargaining 

agreement “explicitly provide[d] that ‘[a]ll claims that an 

employee has been discriminated against . . . in violation of 

applicable federal, state or local law shall be subject to the 

grievance and arbitration procedure as the sole and exclusive 

remedy for violations.’” 857 F.3d at 513 n.17. The collective 

7 The Second, Fifth, and Eighth Circuits also embrace this 

approach. See, e.g., Lawrence v. Sol G. Atlas Realty Co., 841 

F.3d 81, 84 (2d Cir. 2016); Ibarra v. UPS, 695 F.3d 354, 360 

(5th Cir. 2012); cf. Abdullayeva v. Attending Homecare Servs. 

LLC, 928 F.3d 218, 223–24 (2d Cir. 2019) (finding a clear and 

unmistakable waiver when the collective bargaining agreement 

required arbitration of claims under specifically listed statutes); 

Thompson v. Air Transp. Int’l Ltd. Liab. Co., 664 F.3d 723, 

726 (8th Cir. 2011) (accepting, without comment, the 

plaintiff’s concession that the arbitration provision covering 

employment discrimination “alleged to be violations of state or 

federal law” was a clear and unmistakable waiver).
11

bargaining agreement did not have a “similar provision for 

[Fair Labor Standards Act] disputes.” Id. We therefore agreed 

with the parties’ concession that the collective bargaining 

agreement lacked “a clear and unmistakable waiver of the 

employees’ right to vindicate their FLSA claims in federal 

court.” Id. at 513. Jones thus implied that the collective 

bargaining agreement clearly and unmistakably waived a 

judicial forum for statutory claims of discrimination even 

though it did not individually enumerate specific statutes.

Here, “the Union, on behalf of itself and the allegedly 

aggrieved [Union members], waive[d] . . . any right to institute 

or maintain any private lawsuit alleging employment 

discrimination in any state or federal court regarding the 

matters encompassed within this grievance procedure.” App. 

93 (emphasis added). The grievance procedure encompassed 

“any dispute alleging discrimination” by MHS against Union 

members “based upon membership in any protected categories 

under federal or state law and/or as set forth in Section 10.1 of 

[the CBA].” Id. at 92 (emphasis added).

The CBA’s arbitration provision is broad, but it is also 

clear and unmistakable. The plain and ordinary meaning of 

“any” in the context of affirmative sentences like the ones in 

the CBA is “every” or “all.” See Bryan Garner, Any, Garner’s 

Modern English Usage 57 (4th ed. 2015); see also Any, Oxford 

English Dictionary https://www.oed.com/view/Entry/8973

(last visited May 4, 2020) (noting that the use of any “in 

affirmative contexts” is “used to refer to a member of a 

particular group or class without distinction or limitation 

(hence implying every member of the class or group, since 

every one may in turn be taken as a representative)”);

8

see, e.g., 

Massachusetts v. E.P.A., 549 U.S. 497, 528–29 (2007) 

(describing the Clean Air Act’s “sweeping definition” that 

repeatedly used “any”).

By its plain terms, the CBA’s arbitration provision 

waived the Darringtons’ right to sue in state or federal court for 

8 When interpreting contracts under Pennsylvania law, courts 

“may look to dictionary definitions to” determine the plain 

meaning of a contract. Commonwealth ex rel. Shapiro v. 

UPMC, 208 A.3d 898, 906 (Pa. 2019).
12

disputes alleging discrimination based on membership in 

categories protected by federal law, state law, or Section 10.1 

of the CBA.

9 The arbitration provision’s reference to “any 

dispute alleging discrimination . . . based upon membership in 

any protected categories under federal or state law” clearly and 

unmistakably includes within its scope the Darringtons’ claims 

under Title VII and the PHRA. App. 92. That is all the clearand-unmistakable-waiver standard requires.

* * *

Because the CBA clearly and unmistakably waives a 

judicial forum for the Darringtons’ statutory discrimination 

claims, we will reverse the District Court’s order denying 

MHS’s motion to compel arbitration and order the District 

Court to enter an order consistent with this opinion.

9 The Darringtons argue that the CBA “does not reference 

retaliation or claims for retaliation for engaging in protected 

activity.” Appellee’s Br. at 7; see also id. at 17. The argument 

is unavailing. “Retaliation is . . . a form of ‘discrimination’ 

because the complainant is subjected to differential treatment.” 

Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 173–74 

(2005). Any argument that retaliation was not clearly within 

the scope of the term “discrimination” here is belied by the fact 

that the Darringtons’ EEOC filings indicated that “retaliation” 

was the “cause of discrimination” that motivated their filing. 

App. 208–14. The CBA’s arbitration provision covering 

disputes alleging “discrimination” thus necessarily includes 

their claims alleging retaliation.