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

Filing 25

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 09/06/2019, 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 circumstance s of this case, that issue belongs before an arbitrator; and (4) Plaintiff be awarded reasonable attorney's fees attributable to its litigation efforts through May 1, 2018, as established pursuant to procedures provided under Federal Rule of Civil Procedure 54(d)(2). (Garland, Leah)

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.
DUKE UNIVERSITY,
Defendant.

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1:18cv228

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

6)1

at

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

(See Docket Entries 13, 15, 18, 20.)

the

other

party

opposes.

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].”
¶ 6.)

(Docket Entry 15-1, ¶ 3; accord Docket Entry 15-10,

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.”
¶ 3.)

(Id.,

“On or around October 10, 2016, [Defendant] gave [Mr.

Thorpe] a letter discussing the indecent exposure charge, and
suspending [his] employment pending an investigation.”
¶ 4.)5

(Id.,

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 postarbitration] 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.
2

(the

(Docket Entry 1-7 at 2; see also Docket Entry 15-12 at

“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.”
hearing,

Plaintiff

(Docket Entry 1-5 at 1.)
“contend[ed]

that

At the grievance

[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.”
7

(Id. at 2.)

Defendant denied the grievance on January 24, 2017.
Entry 15-1, ¶ 6.)

(Docket

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

exposure.”
arbitration,

surrounding

the

alleged

incident

of

indecent

(Id.; see also Docket Entry 15-15, ¶ 4 (“At the
[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.”
¶ 14.)

(Docket Entry 15-10,

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
incident”

the

gas

(Docket

station
Entry

depicting

15-10,

¶

“the

11),

September
pausing

7,

the

2016
video

“periodically [to] ask[ Officer] Holland questions about what it
showed.”
the

(Id., ¶ 15.)6

video

showed

Mr.

Officer Holland testified that he believed
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.
id., ¶ 16.)
[him]self.

(See

Mr. Thorpe “denied having ever admitted to exposing
[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

evidence.

Plaintiff

(Id.)

entered

the

voluntary

dismissal

into

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.)

identifies Work Rule 13 as the only relevant Work Rule.

It further
(See id.)

Defendant’s post-arbitration brief relies on the alleged indecent
exposure

on

September

7,

2016,

10

in

two

respects.

First,

it

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 . . . .”).)
contends

that

the

Second, Defendant’s post-arbitration brief
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”)

(regarding commission of crimes) (id. at 5).

and

Rule

15

Plaintiff’s post-

arbitration brief maintains that Defendant failed to justify its
termination of Mr. Thorpe for violating Rule 13.
27.)

(See id. at 19-

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.”
(internal quotation marks omitted).)

(Id. at 29

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

“applicable

with

indecent

contractual

exposure.

provisions,”

(See
the

id.

at

2.)

Arbitration

For
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.”
(emphasis and all-cap font omitted).)
relevant issue as:
Thorpe]?

(Id. at 3

It then identifies the

“Was there just cause to discharge [Mr.

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.)
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

As

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,
discharged.

granted

as

to

the

discipline

of

[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 allcap 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.
“After

[Plaintiff]

initiated

(See Docket Entry 1 at 5-6.)

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.”

18

(Docket

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.”
¶ 9.)

(Id.,

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.

20

One

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
supplemental declaration, which states, in relevant part:

a

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,

earnings.”

2016

and

up

through

(Docket Entry 15-5 at 1.)

May

1,

2018,

less

interim

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

“explain[ing

meeting,
his]

Mr.

Thorpe

understanding

of

denied
the

exposing

voluntary

himself,
dismissal,

including how [he] was required to complete community service
before the case would be dismissed,” and “that [he] had not been
required

to

dismissal.”

admit

guilt

in

order

to

obtain

the

voluntary

(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.)

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

More

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
arbitration

allegedly

award,

which

twice

paid

payment

the

the

money ordered

plaintiff

by

“refuse[d]

the
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,

involving as they do one core question:
complied with the Arbitration Award.

195

(4th

Cir.

2009),

whether or not Defendant

(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).”
193

n.6.

Accordingly,

the

Court

should

deny

Id. at

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[].”
at 242.

Fraternal Order of Police, 780 F.3d

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).
3.)

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

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.”
(emphasis added).)

(Docket Entry 1-7 at 6

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.

32

Arbitration exists

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.”
Poultry

United Food & Commercial Workers, Local 400 v. Marval
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

arbitrator.’”

the

award

on

grounds

not

raised

before

the

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 243.12
Here, Plaintiff contends that, at the arbitration, “[t]he
parties . . . exhaustively litigated whether the September 7, 2016
incident provided just cause for Mr. Thorpe’s termination” (Docket
Entry 16 at 11), and “[b]ecause 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:
discharge [Mr. Thorpe]?”

“Was there just cause to

(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.
Entry 1-7 at 2.)

(Docket

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.”
added).)

It

further

proclaims:

“The

(Id. at 4 (emphasis
Arbitrator

draws

jurisdiction and authority from the four corners of the [CBA].
does not sit to disperse his own brand of justice . . . .

his
He
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

36

conduct13 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 “welldefined 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 workrelated 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[] . . . .”
F.2d

at

280.

13
In
duration and
“swip[ing] in
(Docket Entry

Richmond, Fredericksburg & Potomac R.R., 973

Finding

that

Defendant

lacked

just

cause

in

particular, the Arbitration Award focuses on the
timing of Mr. Thorpe’s absence, as well as on his
. . . and swip[ing] out” at work on September 7, 2016
1-7 at 5). (See id. at 4-6.)
37

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.)
38

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

involved

the

Defendant’s
same

or

subsequent
related

discipline

matter(s)

of

Mr.

encompassed

Thorpe
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

support for its actions.’”

has

‘reasonably

arguable

(Docket Entry 20 at 21.)

legal

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.
(explaining

that

“[t]he

critical

Id.; see also id. at 352

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

contemplated

Award

(read

reasonably)

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

42

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

circumstances

of

this

the

Arbitration

case,

that

Award,

issue

as,

belongs

under

the

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

44