WATKINS v. DUKE MEDICAL CENTER et al
Filing
17
MEMORANDUM OPINION AND ORDER signed by JUDGE JAMES A. BEATY, JR. on 09/09/2014 as set out herein. ORDERED that Defendants' Motion to Confirm Arbitration Award [Doc. # 9 is HEREBY GRANTED and the July 18, 2012 Arbitration Award entered in favor of Duke University, and which denied Plaintiff's requested relief, is HEREBY CONFIRMED. FURTHER, for the reasons set forth herein, that Defendants' Motion to Dismiss [Doc. # 9 Plaintiff's Complaint is HEREBY GRANTED. A Judgment dismissing this action will be entered contemporaneously with this Memorandum Opinion and Order.(Taylor, Abby)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
ANNETTE C. WATKINS,
Plaintiff,
v.
DUKE MEDICAL CENTER and
DAVIS AMBULATORY SURGICAL
CENTER,
Defendants.
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1:13CV1007
MEMORANDUM OPINION AND ORDER
BEATY, District Judge.
Defendants Duke Medical Center and Davis Ambulatory Surgical Center1 (collectively
“Defendants”) instituted this action in federal court by filing a Petition for Removal [Doc. #1],
requesting to remove this action from the Superior Court of Durham County, on November 13,
2013. Plaintiff Annette C. Watkins (“Plaintiff”), pro se, subsequently filed her Complaint [Doc.
#6] in this Court on November 15, 2013. The matter currently before the Court is Defendants’
1
As noted in Defendants’ instant Motion, Duke University Health System, Inc. is the entity
responding on behalf of the named Defendants. This is because, as Defendants allege, Duke
Medical Center “is not an entity in and of itself, but rather a name used to refer to medical
aspects of Duke University and Duke University Health System, Inc.” (Mot. to Confirm
Arbitration Award [Doc. #9], at 1, n.1.) Additionally, Davis Ambulatory Surgical does business
as Associated Health Services, Inc., which, as Defendants assert, is a “wholly-owned support
corporation of Duke University Health System, Inc.” (Id.) Furthermore, the Declaration
submitted by Denise L. Evans, Duke University Executive Director of Staff and Labor
Relations, states that Plaintiff was an employee of Duke University and Duke University Health
System, Inc. (Evans Decl. ¶ 1.) Plaintiff has failed to address any contention that Duke
University Health System, Inc. is the proper entity to respond on behalf of Defendants or that
Defendants are only subparts of Duke University and Duke University Health System, Inc.
Thus, the Court will accept Defendants’ assertion that Defendants are subentities of Duke
University and Duke University Health System, Inc.
Motion to Confirm Arbitration Award and Dismiss Plaintiff’s Complaint [Doc. #9]. Defendants
argue that the Court should confirm the Award entered by Arbitrator Howard Cohen on July
18, 2012 (see Arbitration Award [Doc. #10-1]) and dismiss Plaintiff’s Complaint because the
claims raised in this action were the subject of a “final and binding arbitration [award].” (Mot.
to Confirm Arbitration Award [Doc. #9], at 1.) Furthermore, Defendants argue that to the
extent Plaintiff asserts a claim under § 1983, which was not the subject of the arbitration award,
that claim should be dismissed because Plaintiff does not allege any state action. On August 11,
2014, the Court held a hearing on Defendants’ Motion to Confirm Arbitration Award and
Dismiss Plaintiff’s Complaint [Doc. #9]. For the reasons discussed herein, and stated in open
Court on August 11, 2014, the Court will grant Defendants’ Motion to Confirm Arbitration
Award and the Court will dismiss Plaintiff’s Complaint.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff asserts in her Complaint that Sherry Strader (“Strader”), a nurse manager at
Defendant Davis Ambulatory Surgical Center, violated her federal rights under § 1983. Plaintiff
asserts that Strader “wrote [her] up on several occasions with inaccurate write ups, due to
hearsay from other employees.” (Compl. at p. 1.) Plaintiff also alleges that Strader and Mary
Ann Petrosky (“Petrosky”), a new director employed with Defendant Davis Ambulatory Surgical
Center, “set up” Plaintiff by allegedly accusing Plaintiff of breaking an instrument that Plaintiff
asserts was broken on Plaintiff’s day off from work. (Id.) Plaintiff asserts that this accusation
was made approximately three days before she was fired. It appears that Plaintiff asserts that
she worked for Defendants Duke Medical Center and Davis Ambulatory Center for a total
2
period of twenty years prior to her termination. Plaintiff asserts that Petrosky wrote on
Plaintiff’s termination papers that Plaintiff should not “be re-hired by Duke Hospital in the
future.” (Id. at p. 5.) Plaintiff asserts that she asked Petrosky to remove this statement from
her termination papers but that Petrosky did not remove the statement. Additionally, Plaintiff
alleges that she was never trained for her position while employed with Defendant Davis
Ambulatory Surgical Center.
It appears that Plaintiff alleges that she was “wrongfully
terminated, discriminated against, and retaliated against by” Strader and Petrosky, and that the
actions of Strader and Petrosky “had a direct and proximate result of [n]eg[ligence], causing
[p]ersonal injury & [e]motional [d]istress.” (Id.) Plaintiff requests damages for (1) pain and
suffering, (2) “loss of enjoyment of life” and “inability to engage in usual activities,” (3)
emotional distress, (4) “mental anguish, invatied [sic] [her] reputation as a[n] employee,” (5) “loss
of wages and services,” (6) “cost of medicines,” (7) “cost of medicaide [sic], (8) “future damages
and injunctive relief[,] [b]ack pay, promotions, [n]o merit raises for 3 years,” and (9)
“[r]easonable [a]ttorney [sic] [f]ees.” (Compl. at p. 4.) Plaintiff alleges that she was injured in
many ways, including (1) that her credit was affected; (2) that her name “was damaged at Duke,”
(3) that her health was affected and she “was put on medications,” (4) that she suffered
financially, (5) that her son suffered in college after Plaintiff informed him that she had been
terminated, (6) that she was “degraded” and her family “was put in proverity [sic],” (7) that her
retirement “was affected,” (8) that she initially could not receive unemployment benefits
“because she was lied on” by Strader and Petrosky but the Unemployment Security Commission
of North Carolina subsequently determined that Plaintiff qualified for unemployment benefits
3
(see Response [Doc. #14], at 15-17). In light of the allegations discussed above, Plaintiff
requests $1,500,000.00 in damages from Defendant Duke Medical Center and $1,200,000.00 in
damages from Defendant Davis Ambulatory Surgical Center.
Defendants argue that Plaintiff, in her Complaint, is attempting to seek “a second ‘bite
at the apple’ ” in attempting to litigate her claims in this lawsuit. (Defs.’ Mem. [Doc. #10], at
1.) Specifically, Defendants assert that Plaintiff’s claims arising from Plaintiff’s termination were
the subject of binding arbitration. Defendants first allege that Plaintiff was hired in October
2002.2 (Id. at 1-2 (citing Evans Decl. ¶ 1).) Defendants assert that during Plaintiff’s
employment, Plaintiff was “at all times covered by Duke policies, including the Duke University
Dispute Resolution Process [(“Resolution Process”)].” (Id. at 2 (citing Evans Decl. ¶ 1).)
Defendants assert that the Resolution Process includes a multi-step grievance process, up to and
including, arbitration.3 (Id. (citing Evans Decl., Attachment A).)
Specifically, Defendants
purport to cite to the portion of the copy of the Resolution Process that it argues states that
“any dispute or controversy arising out of or related to my employment or termination with
Duke University or Duke University Health System, including any claim based in whole or in
part on federal, state, or local laws, whether statutory or common law, shall be subject to final
and binding resolution through the applicable grievance or dispute resolution procedure.” (Id.
2
Plaintiff asserts that she worked for Duke Medical Center for twenty years. The Evans
Declaration states that Plaintiff’s most recent date of hire was in October 2002 although Plaintiff
worked for Duke “for periods of time on two prior occasions.” (Evans Decl. ¶ 1, n.1.)
3
Defendants have attached a copy of the Resolution Process that appears to be downloaded
from the Duke University Human Resources Website. Based on the date at the bottom of the
copy of the Resolution Process provided by Defendants, the copy was downloaded on
September 12, 2012.
4
at 3 (citing Evans Decl., Attachment A, p. 6).) However, upon review of the copy of the
Resolution Process, the Court has not found this exact language. The closest language that the
Court has found that is consistent with the language referenced by Defendants is:
Any claim arising out of or relating to employment policies will be settled in
accordance with this [Resolution Process] procedure. The arbitration step of this
procedure will be governed by the United States Arbitration Act. Both the staff
member and Duke are required to utilize this procedure to resolve disagreements
falling within its scope.
(Evans Decl., Attachment A, p. 6.)4 Defendants also cite to the portion of the copy of the
Resolution Process that states that the “arbitrator’s decision ‘will be final and binding between
the parties as to all claims which were or could have been raised in connection with the
dispute.’ ” (Def.’s Mem. [Doc. #10], at 3 (citing Evans Decl., Attachment A, p. 10).)
Defendants also argue that Plaintiff agreed to submit her disputes through the Resolution
Process. Specifically, Defendants assert that in 2006, it reissued its Duke Staff Handbook (“the
Handbook”). Defendants assert that Plaintiff received a copy of the Handbook and signed an
Acknowledgment of Receipt form, stating that she received the Handbook. (Evans Decl. ¶ 5,
Attachment B, p. 12).) Indeed, Defendants cite to Exhibit Attachment B, which contains a
document titled “Acknowledgment of Receipt,” which is a form acknowledging that the reader
and signer received the Handbook. (See id.) The document appears to be initialed and signed
by Plaintiff and her former supervisor Sherry Strader and the document is dated June 21, 2006.
(Id.) Additionally, the Acknowledgment of Receipt form contains a table with three headers
titled (1) “Policy/Document”, (2) “Initials”, (3) “Date.” (Id.) As Defendants assert, the
4
When referencing the exhibits and documents discussed herein, the Court will cite to the
pagination created by the CM/ECF filing system.
5
Acknowledgment of Receipt Form shows Plaintiff’s initials next to the phrase “Dispute
Resolution Process,” which falls under the “Policy/Document” header. (Id.) Defendants also
cite to Exhibit Attachment C, (Evans Decl., Attachment C, p. 14), which contains a form signed
by Plaintiff that requests that Plaintiff’s termination dispute be submitted to the American
Arbitration Association. Additionally, the form shows Plaintiff’s choice of arbitrators to be
David B. McCormick or Howard M. Cohen, with Mr. Cohen being the person who was
ultimately the arbitrator over the claims that Plaintiff submitted to arbitration. (See Evans Decl.,
Attachment C, p. 14.)
Finally, Defendants cite to the Arbitration Award itself.5 (Arbitration Award [Doc. #101].) Specifically, Defendants cite to the portion of the Arbitration Award where Arbitrator
Cohen discussed that Plaintiff “contended that she was subjected to discrimination and
retaliation as evidenced by a charge she filed with the Equal Employment Opportunity
Commission” under the “Issues and Relief Sought” portion of the Award. (Arbitration Award
at ¶ 8.) Additionally, per the Arbitration Award, Arbitrator Cohen stated that Plaintiff “also
sought additional damages including compensatory and punitive damages and loss of future
wages.” (Id.) Ultimately, Arbitrator Cohen found “no evidence of discrimination or retaliation
and no violation of the law in this regard,” as Plaintiff only referenced her EEOC charge in
arguing that Defendants discriminated against her. (Id. at ¶ 12.) Arbitrator Cohen concluded
5
In Plaintiff’s Response to Defendants’ Motion to Confirm Arbitration Award [Doc. #14],
Plaintiff also includes portions of the Arbitration Award. (Pl.’s Resp. [Doc. #14], at 11-13, 2024.)
6
that “[Plaintiff’s] termination from employment was justified and consistent with the Duke
policies and guidelines. She was given a Written Warning and two Final Written Warnings
. . . . She failed to comply with the terms of the Warnings and the issues cited in the
Termination Notice are supported by the facts.”6 (Id. at ¶ 23.) Ultimately, Arbitrator Cohen’s
Award was in favor of the Respondent, Duke University, and Arbitrator Cohen denied Plaintiff’s
request for reinstatement and denied back pay or damages. Finally, Arbitrator Cohen noted that
the Award was “in full settlement of all claims submitted to this Arbitration. All claims not
expressly granted herein are hereby denied.” (Arbitration Award, p. 6.)
The Court notes for the record that at the Motion hearing in this case, Plaintiff
acknowledged that she agreed to submit her claims to arbitration, to the extent she participated
in the arbitration proceeding at issue in this case. Plaintiff also acknowledged that she filed the
instant lawsuit in response to Plaintiff discovering that the Arbitration Award had been entered
and the Award was unfavorable to Plaintiff. Furthermore, the Court notes that at the Motion
hearing, Plaintiff acknowledged that the same issues that she raised in the arbitration proceedings
are the basis of the claims she has raised in the instant lawsuit. To the extent Plaintiff raises the
claims that are currently in her Complaint, Plaintiff has only asserted, at the Motion hearing in
6
Per the Arbitration Award, Plaintiff was issued her first written warning on August 19, 2011,
which discussed three violations involving “Availability of Work,” “Teamwork & Customer
Service,” and “Clinical Quality.” (Arbitration Award at ¶ 16.) Plaintiff was then issued two final
written warnings on August 31, 2011 and October 21, 2011. (See id. at ¶¶ 17-18.) Plaintiff was
discharged on October 31, 2011 because she still failed to adequately perform her job.
Specifically, the discharge termination notice referred to problems with the medical instrument
trays including missing instruments, improper placement of instruments, and failure to
disassemble instruments resulting in inadequate cleaning of the instruments. (See id. at ¶ 19.)
7
this case, that she disagreed with the Arbitration Award and that she felt that her claims
should not be dismissed because she has no support after working for 20 years at Duke
University.
II.
DISCUSSION
A.
Whether the Court should Confirm the Arbitration Award issued in favor of
Defendants.
In this case, Defendants request that the Court confirm the Arbitration Award issued in
favor of Duke University by Arbitrator Cohen pursuant to 9 U.S.C. § 9 of the Federal
Arbitration Act (“FAA”). At the Motion hearing, Plaintiff stated that the Court should not
confirm the Arbitration Award because she disagreed with the Award and that she believed that
the arbitrator colluded with Duke University at the arbitration proceeding. The Court will
address these matters in turn.
Pursuant to 9 U.S.C. § 9, the statutory provision that governs the confirmation of
arbitration awards:
If the parties in their agreement have agreed that a judgment of the court shall be
entered upon the award made pursuant to the arbitration, and shall specify the
court, then at any time within one year after the award is made any party to the
arbitration may apply to the court so specified for an order confirming the award,
and thereupon the court must grant such an order unless the award is vacated,
modified, or corrected as prescribed in sections 10 and 11 of this title. If no court
is specified in the agreement of the parties, then such application may be made
to the United States court in and for the district within which such award was
made.
9 U.S.C. § 9 (2012). “A confirmation proceeding under 9 U.S.C. § 9 is intended to be summary:
confirmation can only be denied if an award has been corrected, vacated, or modified in
accordance with the Federal Arbitration Act.” Taylor v. Nelson, 788 F.2d 220, 225 (4th Cir.
8
1986); Vincent v. Am. Gen. Life & Acc. Ins. Co., No. 1:01CV518, 2004 WL 856330, at *3
(M.D.N.C. Apr. 16, 2004). Although intended to be a summary process, “[a] court has
jurisdiction to confirm an award only if the parties have agreed that the award is final.”
Rainwater v. Nat’l Home Ins. Co., 944 F.2d 190, 192 (4th Cir. 1991). As such, the Court will
next address whether the Arbitration Award is binding and final on the parties for the purpose
of confirming the Arbitration Award in this case.
1. Whether the Arbitration Award is Binding on the Parties.
In determining whether Plaintiff agreed to submit her claims and disputes through the
Duke University Resolution Process, which includes binding arbitration, Defendants point to
an Acknowledgment of Receipt form, where Plaintiff acknowledged receiving a Handbook that
included a summary of Duke’s Resolution Process. Furthermore, Defendants have provided
documentation in which Plaintiff submitted a form requesting arbitration in this case. (See
Evans Decl., Attachment C, p. 14.) Plaintiff has not responded to Defendants’ contention that
she agreed to submit her termination claims to arbitration. Indeed, based upon Plaintiff’s
statements at the Motion hearing in this case, it would appear that Plaintiff acknowledged that
she agreed to arbitrate her claims. To the extent Duke’s Resolution Process gave Plaintiff an
option of submitting her claims to final and binding arbitration, the Court notes that in this case,
Plaintiff made the initial demand for arbitration challenging her termination and seeking
reinstatement to her position with backpay. (See id.; Arbitration Award, p. 2.) Although
Plaintiff, notably pro se, has not made it clear whether the instant lawsuit is an attempt to
challenge any agreement to arbitrate in this case, the Court notes that “[t]o the extent that a party
9
is entitled to challenge the validity of an agreement to arbitrate, the time to raise that issue is
before the matter goes to arbitration, not after.” Owens-Williams v. Merrill Lynch, Pierce,
Fenner, & Smith, Inc., 907 F. Supp. 134, 137 (1995), aff’d, 103 F.3d 119 (4th Cir. 1996). Thus,
“[f]ailure to challenge arbitrability in timely fashion and participating in the arbitration
proceedings, in other words, will result in waiver to the right to object.” Id. (citing Int’l
Longshoremen’s Assoc., AFL-CIO v. West Gulf Maritime Assoc., 594 F. Supp. 670 (S.D.N.Y.
1984)). Also, an agreement to arbitrate need not be signed itself, and an agreement to arbitrate
may be implied by a party’s conduct. See Real Color Displays, Inc. v. Universal Applied
Technologies Corp., 950 F. Supp. 714, 718 (E.D.N.C. 1997) (citing cases). In this case, Plaintiff
submitted the demand for arbitration, which appears to be consistent with Duke’s Resolution
Process that allows employees to submit their claims to arbitration. Additionally, Plaintiff’s
demand for arbitration was also submitted to the American Arbitration Association (“AAA”),
which is also consistent with the provisions of Duke’s Resolution Process that “[t]he arbitration
hearing will be guided by the National Rules for the Resolution of Employment Disputes—as
developed by the [AAA].” (Evans Decl., Attachment A, p. 10).) The Fourth Circuit has noted
that “reference to AAA rules and regulations is enough to make arbitration binding.” Rainwater,
944 F.2d at 193. Thus, based on Plaintiff’s demand for arbitration in this case and her request
to use the AAA to govern the arbitration proceeding–both actions which appear to be consistent
with Duke’s Resolution Process–the Court finds that Plaintiff’s termination claims were subject
to binding arbitration in this case.7
7
Although the parties did not discuss this issue in their briefing, the Court notes that to the
extent Plaintiff submitted any Title VII or ADEA claims to arbitration, (see Arbitration Award
10
2. Whether the Court may Confirm the Arbitration Award because of the
Statute of Limitations Issue.
Defendants have argued that the Court should confirm the Arbitration Award, even if
such a confirmation would be outside of the one-year period set forth in 9 U.S.C. § 9. Under
9 U.S.C. § 9 of the FAA, a party to an arbitration may apply to a United States district court to
confirm an arbitration award within one year after the award is made. In this case, the
Arbitration Award was entered on July 18, 2012. However, as Defendants note, they did not
seek confirmation of this award until November 19, 2013. Thus, at first, it appears that
Defendants’ Motion to Confirm Arbitration Award [Doc. #9] is untimely, as it was filed more
than one year after the arbitrator entered his Arbitration Award. Nevertheless, Defendants also
argue “that the one-year time period for confirmation of an arbitration award under 9 U.S.C. §
9 should not be given the effect of a statute of limitations that would bar confirmation.
Defendants cite to Sverdrup Corp. v. WHC Cosntructors, Inc., 989 F.2d 148, 156 (4th Cir. 1993)
in support of this proposition. Indeed in Sverdrup, the Fourth Circuit held that § 9 must be
interpreted as a “permissive provision which does not bar the confirmation of an award beyond
a one-year period.” Id. Courts within the Fourth Circuit have followed this rule. 1199 SEIU
United Healthcare Workers East v. Civista Med. Ctr., Inc., No. DKC 10-0479, 2011 WL 310486,
at *4 (D. Md. Jan. 28, 2011) (finding that the Fourth Circuit has “not interpreted § 9 of the FAA
at ¶ 12 (referencing Plaintiff’s EEOC charge (see Pl.’s Resp. [Doc. #14], at 14) and the
discrimination claims alleged therein)), such claims are arbitrable. Carson v. Giant Food, Inc.,
175 F.3d 325, 332 (4th Cir. 1999) (noting that Title VII and ADEA claims are arbitrable); see
also 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 274, 129 S. Ct. 1456, 1474, 173 L. Ed. 2d 398
(2009) (holding that “a collective-bargaining agreement that clearly and unmistakably requires
union members to arbitrate ADEA claims is enforceable as a matter of federal law.”).
11
as creating a mandatory one-year statute of limitations period for actions seeking confirmation
of arbitral awards” and finding Sverdrup to be controlling precedent within the Fourth Circuit);
United Gov’t Sec. Officers of Am. v. Special Operations Grp., Inc., 436 F. Supp. 2d 790, 794-95
(E.D. Va. 2006) (finding that Sverdrup is the “controlling precedent in this circuit and district
courts are not at liberty to reach a different result” even in light of the Supreme Court decision
in Cortez Byrd Chips, Inc. v. Bill Harbert Constr. Co., 529 U.S. 193, 120 S. Ct. 1331, 146 L. Ed.
2d 171 (2000)). But see Photopaint Techs., LLC v. Smartlens Corp., 335 F.3d 152, 156-57 (2d
Cir. 2003) (declining to follow the holding in Sverdrup in light of Cortez, and finding that the
one-year period to petition for a confirmation of an arbitration award under § 9 imposes a
statute of limitations on seeking such a confirmation); Md. Transit Admin. v. Nat’l R.R.
Passenger Corp., 372 F. Supp. 2d 478, 483-84 (D. Md. 2005) (calling into doubt the holding in
Sverdrup, specifically, that the one-year time period in § 9 is not a statute of limitations period
and declining to confirm arbitration award). Thus, under Sverdrup, which has not yet been
reconsidered by the Fourth Circuit in light of the Supreme Court opinion in Cortez, the Court
may properly find that it can confirm the Arbitration Award in this case, even when such a
request to confirm the arbitration award has been submitted more than one year after the
arbitrator entered the Award at issue in this case. For these reasons, the Court does not find that
the one-year time period for confirmation of arbitration proceedings in federal court precludes
the Court from confirming the arbitration Award at issue in this case.
12
3. Whether the Court can Vacate the Arbitration Award in this case.
At the Motion hearing in this case, Plaintiff stated that she believed that the arbitrator
colluded with Duke University and that she informed the arbitration department that she did
not agree with the Arbitration Award that was entered. Pursuant to 9 U.S.C. § 10, the Court
may vacate an arbitration award in four circumstances: (1) “[w]here the award was procured by
corruption, fraud, or undue means”; (2) “where there was evident partiality or corruption in the
arbitrator[ ]”; (3) “where the arbitrator[ ] w[as] guilty of misconduct in refusing to postpone the
hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to
the controversy; or of any other misbehavior by which the rights of any party have been
prejudiced”; or (4) “where the arbitrator[ ] exceeded [his or her] power[ ], or so imperfectly
executed them that a mutual, final, and definite award upon the subject matter submitted was
not made.” Although Plaintiff now asserts that she believes that the arbitrator was biased in
favor of Duke University in entering the Arbitration Award in this case, Plaintiff has not
advanced any argument or evidence that she previously moved to vacate the Arbitration Award.
Pursuant to 9 U.S.C. § 12, “[n]otice of a motion to vacate, modify, or correct an award must be
served upon the adverse party or his attorney within three months after the award is filed or
delivered.” The Fourth Circuit has held that “once the three-month period has expired, an
attempt to vacate an arbitration award could not be made even in opposition to a later motion
to confirm” unless a “tolling or due diligence exception operated to excuse [a] failure to make
a timely motion.” Taylor v. Nelson, 788 F.2d 220, 225 (4th Cir. 1986) holding reaffirmed in
Choice Hotels Int’l, Inc. v. Shiv. Hospitality, L.L.C., 491 F.3d 171, 177-78 (4th Cir. 2007). As
13
the Arbitration Award in this case was issued in July 2012, the limitations period has run for
Plaintiff to attempt to vacate the Award. Furthermore, Plaintiff has not argued that a tolling or
due diligence exception applies in this case, and the Court does not find that such circumstances
exist. As such, the Arbitration Award is not subject to vacation or reversal.
For the reasons stated above, the Court will confirm the Arbitration Award at issue in
this case. The Court will do so because the Court finds (1) that Plaintiff agreed to participate
in arbitration and the Arbitration Award was binding and final on the parties, (2) that the Court
may confirm the Arbitration Award, even outside of the one-year period set forth in 9 U.S.C.
§ 9, and (3) that the Arbitration Award is not subject to vacation and reversal in this case.
B.
Whether the Arbitration Award has Res Judicata Effect on Plaintiff’s Claims.
Defendants argue that Plaintiff’s claims should be dismissed under the doctrine of res
judicata. If the Court determines that Plaintiff’s claims are barred by the doctrine of res judicata,
the Court may properly dismiss Plaintiff’s claims. See Andrews v. Daw, 201 F.3d 521, 524 (4th
Cir. 2000). The party invoking res judicata claim preclusion “ ‘must establish three elements: (1)
a final judgment on the merits in a prior suit, (2) an identity of the cause of action in both the
earlier and the later suit, and (3) an identity of the parties or their privies in the two suits.’ ”
Belmont Partners, LLC v. Mina Mar Grp., Inc., 741 F. Supp. 2d 743, 750 (W.D. Va. 2010)
(quoting Meekins v. United Transp. Union, 946 F.2d 1054, 1057 (4th Cir. 1991)). In addressing
the first element, it is not disputed that the Arbitration Award at issue was final and binding on
the merits of Plaintiff’s claims that were submitted to arbitration.8 United Gov’t Sec. Officers
8
Furthermore, to the extent the Court has confirmed the Arbitration Award in this case, that
would necessarily render the Arbitration Award, and the conclusion regarding the merits of any
14
of Am. v. Special Operations Grp., Inc., 436 F. Supp. 2d 790, 793 (E.D. Va. 2006) (“A final and
binding arbitration award normally has the same effects on the parties as a judgment of a
court.”) (citing Restatement (Second) of Judgments § 84 (1982)); Camp v. Kollen, 567 F. Supp.
2d 170, 174 n.6 (D.D.C. 2008) (stating that the plaintiff did not “contest the settled principle that
‘[t]he decisions of binding arbitration proceedings are final decisions on the merits for purposes
of res judicata.’ ” (emphasis added in Camp) (quoting Century Int’l Arms, Ltd. v. Fed. State
Unitary Enter. State Corp. ‘Rosvoorouzheinie’, 172 F. Supp. 2d 79, 95-96 (D.D.C. 2001))). But
see Witcher v. Kroger Co., No. 8:06-1524-RBH, 2007 WL 2220404, at *7 (D.S.C. July 30, 2007)
(declining to give preclusive effect to an arbitration award where there was no Fourth Circuit,
or District Court of South Carolina, decision expressly permitting the court to do so).
As to the second element, Plaintiff stated at the Motion hearing that the claims
underlying the arbitration proceedings are the same claims underlying her Complaint in this case,
to the extent she challenges her termination.9 “To determine the identity of the cause of action,
the appropriate inquiry is whether the new claim arises out of the same transaction or series of
transactions as the claim resolved by the prior judgment.” Id. (citing Meekins, 946 F.2d at 1057).
Because Plaintiff is challenging her termination in the current cause of action and the basis of
the arbitration proceeding at issue in this case was whether Plaintiff was wrongfully terminated,
such award, final. See 9 U.S.C. § 13 (noting that a judgment entered in an action for, inter alia,
confirming an arbitration award, “shall be docketed as if it was rendered in an action” and that
any such judgment shall have the “same force and effect, in all respects, as, and be subject to all
the provisions of law relating to, a judgment in an action; and it may be enforced as if it had
been rendered in an action in the court in which it is entered.”).
9
To the extent Plaintiff has filed a separate cause of action under § 1983, the Court will address
that claim in Part II.C. below.
15
it would appear that her claims in this case arise out of the same transaction as the claims in the
arbitration proceeding. Thus, particularly in light of Plaintiff’s concession that the issues
submitted to arbitration are the same issues that are the basis of Plaintiff’s instant lawsuit, the
Court finds that the claims Plaintiff submitted to arbitration and Plaintiff’s current claims are
identical.
Finally, as to the third element, the parties in this case appear to be the same or privies
to the party in the arbitration proceeding. “ ‘[T]he privity requirement assumes that the person
in privity is so identified in interest with a party to former litigation that he represents precisely the
same legal right in respect to the subject matter involved.’ ” Andrews v. Daw, 201 F.3d 521, 525
(4th Cir. 2000) (emphasis added in Andrews) (quoting Jones v. SEC, 115 F.3d 1173, 1180 (4th
Cir. 1997) (internal quotation marks omitted), cert. denied, 523 U.S. 1072, 118 S. Ct. 1512, 140
L. Ed. 2d 666 (1998)). In this case, Plaintiff challenges the actions of Defendants Duke Medical
Center and Davis Ambulatory Center, as her employer(s), for terminating her employment.
However, Defendants have asserted that they are merely aspects and/or subsidiaries of Duke
University, the party named in the arbitration proceeding. Plaintiff has not contested this
argument by Defendants and throughout Plaintiff’s pleading and the documents she has
presented to the Court, Plaintiff has alternatively stated that she has been fired by Defendants,
Duke University, or some version of an entity to which Plaintiff has referred to as “Duke.” (See
Compl. at p. 3 (stating that Plaintiff filed claims with Duke for her “inaccurate write ups”); id.
at p. 5 (stating that Plaintiff was fired after working for Duke for 20 years and stating that her
supervisor wrote on her termination documents that Plaintiff should not be rehired by Duke
16
Hospital); Pl.’s Resp. [Doc. #14], at 10 (requesting that Plaintiff be reinstated to her previous
employment position or be transferred to another position “within the Duke Health System”).)
As such, based on Defendants’ contention that they are subdivisions of Duke University and
Duke University Health System, Inc. and because Plaintiff’s own pleadings and the documents
that she has presented to the Court have referred to her employer as various Duke University
entities, the Court finds that there is no meaningful difference between Duke University or
Duke University Health System, Inc. and Defendants. Thus, the Court finds that Duke
University and/or Duke University Health System, Inc. and Defendants are the same entities,
or at the very least, privies for the purposes of applying the doctrine of res judicata in this case.
For the foregoing reasons, specifically that the Court has determined that the three res judicata
elements have been satisfied as it relates to the arbitration proceeding at issue in this case, the
Court finds that res judicata precludes Plaintiff from presenting her claims in the instant lawsuit.
Although the parties have not distinguished this point, but in an effort to be
comprehensive, the Court notes that to the extent the Court must look to state law res judicata
principles in resolving the instant matter, the Court notes that Plaintiff’s claims would also be
barred under North Carolina law. See Harding v. Ramsay, Scarlett & Co., Inc., 599 F. Supp. 180,
183 (D. Md. 1984) (“To decide whether res judicata or collateral estoppel principles will bar
litigation in federal court, the court must look to the law of the state in which the judgment was
entered.” (citing Kremer v. Chemical Constr. Corp., 456 U.S. 461, 481-82, 102 S. Ct. 1883, 1897,
72 L. Ed. 2d 262 (1982)). To the extent it applies, under North Carolina law, “preclusive effect
is not limited to court proceedings; it arises in the same manner from arbitration awards.”
17
Whitlock v. Triangle Grading Contractors Development, Inc., 205 N.C. App. 444, 448, 696
S.E.2d 543, 546 (2010) (citing cases). Furthermore, “[o]ne who was not a party to a prior
arbitration may use the arbitration award to bind an adverse party in a subsequent proceeding
if, among other things, the adverse party or its privy was a party to the arbitration and ‘enjoyed
a full and fair opportunity to litigate th[e] issue in the earlier proceeding.’ ” Id. (quoting
Whiteacre P’ship, 358 N.C. 1, 15, 591 S.E.2d 870, 880 (2004)). Because Plaintiff was “an active
and controlling participant in the arbitration” proceeding at issue in this case, to the extent she
participated in the arbitration, see id. at 444, 696 S.E.2d at 547, and because she seeks to assert
claims for wrongful termination against Defendants in the instant suit, the Court notes that
Defendants may use the Arbitration Award to bind Plaintiff in this case. As previously noted,
the claims Plaintiff submitted to arbitration are similar to, if not the same as, the claims that
form the basis of Plaintiff’s current lawsuit. Therefore, under North Carolina law, Plaintiff had
a full and fair opportunity to address the claims set forth in her Complaint at the arbitration
hearing and, thus, Plaintiff is precluded from raising any such claim in the instant lawsuit.
As such, and for the reasons set forth herein, the Court will dismiss Plaintiff’s claims to
the extent they were the subject of the binding Arbitration Award at issue in this case. See
Vincent, 2004 WL 856330, at *3 (confirming an arbitration award and dismissing the plaintiff’s
complaint “because the arbitration award disposed of all of [the p]laintiff’s claims against [the
defendant].”).
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C.
Whether Plaintiff has failed to state a claim under Section 1983.
Defendants also argue that to the extent Plaintiff has asserted a § 1983 claim against
Defendants in her Complaint, and such a claim was not within the scope of the Arbitration
Award in this case, it should be dismissed because Plaintiff has not alleged state action.
Defendants correctly assert that “to state a claim under § 1983, [P]laintiff must aver that a
person acting under color of state law deprived h[er] of a constitutional right or a right conferred
by law of the United States.” Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599, 615 (4th
Cir. 2009). Section 1983, “excludes from its reach merely private conduct, no matter how
discriminatory or wrongful.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50, 119 S. Ct.
977, 143 L. Ed. 2d 130 (1999) (quotations and citation omitted). In this case, Plaintiff has
asserted her § 1983 claim against Defendants Duke Medical Center and Davis Ambulatory
Surgical Center, which are private entities under the control of Duke University and Duke
University Health System, Inc. Although “state action may be found if . . . there is such a ‘close
nexus between the State and the challenged action’ that seemingly private behavior ‘may be fairly
treated as that of the State itself,” Brentwood Acad. V. Tennessee Secondary Sch., 531 U.S. 288,
295, 121 S. Ct. 924, 148 L. Ed. 2d 807 (2011), Plaintiff has failed to allege any state or
government action in this case. As a result, Plaintiff has failed to allege “any close nexus
between the State” and the conduct of Defendants, or their employees, in this case. As such
Plaintiff’s § 1983 claim fails.
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III.
CONCLUSION
For the reasons stated herein, and stated in open Court on August 11, 2014, the Court
will grant Defendants’ Motion to Confirm Arbitration Award [Doc. #9] and confirm the July
18, 2012 Arbitration Award entered in favor of Duke University, and which denied Plaintiff’s
requested relief. As the Court will confirm the Duke University Arbitration Award, the Court
will dismiss Plaintiff’s Complaint. This is because Plaintiff acknowledged at the August 11
Motion hearing, and the Court has otherwise determined, that the claims underlying the
arbitration proceeding are the same claims underlying Plaintiff’s Complaint. Furthermore, to
the extent Plaintiff has brought a claim under § 1983, that was not the subject of the arbitration
proceeding or the Arbitration Award, the Court will dismiss Plaintiff’s § 1983 claim because
Plaintiff has not alleged, or identified, any state action in this case.
IT IS THEREFORE ORDERED that Defendants’ Motion to Confirm Arbitration
Award [Doc. #9] is HEREBY GRANTED and the July 18, 2012 Arbitration Award entered in
favor of Duke University, and which denied Plaintiff’s requested relief, is HEREBY
CONFIRMED. IT IS FURTHER ORDERED, for the reasons set forth herein, that
Defendants’ Motion to Dismiss [Doc. #9] Plaintiff’s Complaint is HEREBY GRANTED.
A Judgment dismissing this action will be entered contemporaneously with this
Memorandum Opinion and Order.
This, the 9th day of September, 2014.
United States District Judge
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