NetJets Association of Shared Aircraft Pilots v. NetJets Aviation Inc

Filing 32

OPINION AND ORDER. Defendant's Motion for Summary Judgment, Doc. No. 26 , is GRANTED. Plaintiff's Motion for Summary Judgment, Doc. No. 27 , is DENIED. The Clerk is DIRECTED to enter FINAL JUDGMENT. Signed by Magistrate Judge Norah McCann King on 1/3/2014. (pes1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

NETJETS ASSOCIATION OF SHARED
AIRCRAFT PILOTS,
Plaintiff,
vs.

Civil Action 2:12-cv-991
Magistrate Judge King

NETJETS AVIATION, INC.,
Defendant.

OPINION AND ORDER
This is an action under the Railway Labor Act (“RLA”), 45 U.S.C.
§ 151 et seq., in which the plaintiff labor organization seeks to
compel arbitration by the defendant air carrier of a grievance filed
on behalf of Peter Elmore, a pilot whose employment was terminated,
and as allegedly required by the parties’ collective bargaining
agreement.

This matter is now before the Court, with the consent of

the parties pursuant to 28 U.S.C. § 636(c), for consideration of
Plaintiff’s Motion for Summary Judgment (“Plaintiff’s Motion”), Doc.
No. 27, Defendant NetJets Aviation, Inc.’s Memorandum of Law in
Opposition to Plaintiff’s Motion for Summary Judgment, Doc. No. 28,
and plaintiff’s reply, Doc. No. 30.

Also before the Court is

defendant’s Motion for Summary Judgment (“Defendant’s Motion”), Doc.
No. 26, Plaintiff’s Opposition to Defendant’s Motion for Summary
Judgment (“Plaintiff’s Response”), Doc. No. 29, and defendant’s reply,
Doc. No. 31.

For the reasons that follow, Plaintiff’s Motion is

DENIED and Defendant’s Motion is GRANTED.

1

I.

Background
Defendant NetJets Aviation, Inc. (“defendant” or the “Company”),

is an air carrier that manages and operates aircraft on behalf of
fractional owners and lessees.

Answer of NetJets Aviation, Inc. to

Complaint to Compel Arbitration of NetJets Association of Shared
Aircraft Pilots (“Answer”), Doc. No. 8, at ¶ 5; Complaint to Compel
Arbitration (“Complaint”), Doc. No. 1, at ¶ 5.

Defendant employs

approximately 3,000 pilots, approximately 2,500 of whom are considered
“line pilots” because they are actively flying for defendant.
¶ 6; Complaint, ¶ 6.

Answer,

In 2007, defendant and the International

Brotherhood of Teamsters, Airline Division (“IBT”), entered into a
collective bargaining agreement in order to, inter alia, “provide for
orderly collective bargaining relations pertaining to rates of pay,
rules or working conditions, between the Company and its Pilots.”
Collective Bargaining Agreement, attached to Defendant’s Motion as
Exhibit 1 (“CBA”), PAGEID 133 et seq.

The CBA confers on the Company

the right to “discharge . . . any employee for just cause.” CBA §
2.4(A), PAGEID 137.
On July 11, 2008, plaintiff NetJets Association of Shared
Aircraft Pilots and defendant executed a Letter of Agreement, pursuant
to which plaintiff assumed all rights, responsibilities, obligations,
and duties held by IBT under the CBA. Complaint, Exhibit 3; Answer, ¶
8.

On August 26, 2008, plaintiff replaced IBT as the certified

bargaining representative of the craft or class of pilots employed by
defendant.

Complaint, Exhibit 1; Answer, ¶ 7.

Peter Elmore was employed by defendant as a pilot on June 18,

2

2001.

Answer, ¶ 11; Complaint, ¶ 11.

As of September 2012, Elmore

was employed by defendant as an Air Traffic Programs Manager, which is
considered a management pilot position under the CBA.
12; Answer, ¶ 12.

Complaint, ¶

Elmore’s employment with defendant was terminated

on September 24, 2012, as “a result of [Elmore] violating T&E policy,
specifically the Business Expense Policy # 164.”
Doc. No. 27-3, at p. 1.

Plaintiff’s Motion,

Elmore filed a grievance with plaintiff that

same day, arguing that defendant “did not have just cause to terminate
[his] employment.”

Id., Doc. No. 27-3, at p. 3.

Plaintiff submitted

Elmore’s grievance to defendant and requested that the grievance
proceed directly to arbitration.

See Complaint, ¶ 17; Answer, ¶ 17.

On October 16, 2012, defendant declined that request, taking the
position that, “[b]ecause he was a management pilot at the time of his
discharge, the issue of Mr. Elmore’s discharge is not substantively
arbitrable.”
4.

Answer, ¶ 18; Plaintiff’s Motion, Doc. No. 27-3, at p.

Plaintiff thereafter filed this action, seeking to compel

arbitration under the terms of the CBA.
II.

Standard
The standard for summary judgment is well established.

This

standard is found in Rule 56 of the Federal Rules of Civil Procedure,
which provides in pertinent part: “The court shall grant summary
judgment if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter
of law.”

Fed. R. Civ. P. 56(a).

Pursuant to Rule 56(a), summary

judgment is appropriate if “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of

3

law.”

Id.

In making this determination, the evidence “must be viewed

in the light most favorable” to the non-moving party.
Kress & Co., 398 U.S. 144, 157 (1970).

Adickes v. S.H.

Summary judgment will not lie

if the dispute about a material fact is genuine, “that is, if the
evidence is such that a reasonable jury could return a verdict for the
non-moving party.”
(1986).

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

However, summary judgment is appropriate if the opposing

party “fails to make a showing sufficient to establish the existence
of an element essential to that party’s case, and on which that party
will bear the burden of proof at trial.”
477 U.S. 317, 322 (1986).

Celotex Corp. v. Catrett,

The “mere existence of a scintilla of

evidence in support of the [opposing party’s] position will be
insufficient; there must be evidence on which the jury could
reasonably find for the [opposing party].”

Anderson, 477 U.S. at 252.

The “party seeking summary judgment always bears the initial
responsibility of informing the district court of the basis for its
motion, and identifying those portions” of the record which
demonstrate “the absence of a genuine issue of material fact.”
Celotex Corp., 477 U.S. at 323.

The burden then shifts to the

nonmoving party who “must set forth specific facts showing that there
is a genuine issue for trial.”
Fed. R. Civ. P. 56(e)).

Anderson, 477 U.S. at 250 (quoting

“Once the moving party has proved that no

material facts exist, the non-moving party must do more than raise a
metaphysical or conjectural doubt about issues requiring resolution at
trial.”

Agristor Fin. Corp. v. Van Sickle, 967 F.2d 233, 236 (6th

4

Cir. 1992) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986)).

III. Discussion
The facts of this case, as set forth supra, are not in dispute
and the parties do not contend that the record reflects a genuine
issue of material fact.

Rather, the parties disagree whether the CBA

requires arbitration of Elmore’s grievance and whether the
arbitrability of the parties’ dispute should be determined by this
Court or, instead, by an arbitrator.

See Plaintiff’s Response, pp. 2-

3.
This action arises under the RLA, 45 U.S.C. § 151 et seq., which
was designed
to promote stability in labor-management relations by
providing a comprehensive framework for resolving labor
disputes.
Atchison, T. & S.F.R. Co. v. Buell, 480 U.S.
557, 562, 107 S.Ct. 1410, 1414, 94 L.Ed.2d 563 (1987); see
also 45 U.S.C. § 151a.
To realize this goal, the RLA
establishes a mandatory arbitral mechanism for “the prompt
and orderly settlement” of two classes of disputes.
45
U.S.C. § 151a. The first class, those concerning “rates of
pay, rules or working conditions,” ibid., are deemed
“major” disputes. Major disputes relate to “‘the formation
of collective [bargaining] agreements or efforts to secure
them.’”
Conrail, 491 U.S., at 302, 109 S.Ct., at 2480,
quoting Elgin, J. & E.R. Co. v. Burley, 325 U.S. 711, 723,
65 S.Ct. 1282, 1290, 89 L.Ed. 1886 (1945).
The second
class of disputes, known as “minor” disputes, “gro[w] out
of grievances or out of the interpretation or application
of agreements covering rates of pay, rules, or working
conditions.”
45 U.S.C. § 151a.
Minor disputes involve
“controversies over the meaning of an existing collective
bargaining agreement in a particular fact situation.”
Trainmen v. Chicago R. & I.R. Co., 353 U.S. 30, 33, 77
S.Ct. 635, 637, 1 L.Ed.2d 622 (1957).
Thus, “major
disputes seek to create contractual rights, minor disputes
to enforce them.” Conrail, 491 U.S., at 302, 109 S.Ct., at
2480, citing Burley, 325 U.S., at 723, 65 S.Ct., at 1289.

5

Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 252-53 (1994).
See also Int'l Bhd. of Teamsters, AFL-CIO v. United Parcel Serv.
Co., 447 F.3d 491, 498-501 (6th Cir. 2006) (discussing major and
minor disputes).
The RLA also imposes a duty on every air carrier and its
employees, acting through their representatives, “to establish a
board

of

adjustment

of

jurisdiction

not

exceeding

the

jurisdiction which may be lawfully exercised by system, group, or
regional boards of adjustment, under the authority of section 153
of this title.”

45 U.S.C. § 184.

Minor disputes “must be

resolved only through the RLA mechanisms, including the carrier’s
internal dispute-resolution processes and [the] adjustment board
established by the employer and the unions.”

Hawaiian Airlines,

512 U.S. at 253 (citing 45 U.S.C. § 184). See also United Parcel
Serv. Co., 447 F.3d at 498, 501.
However,

“minor

disputes

contemplated

those that are grounded in the CBA.”
at 256.

by

[the

RLA]

are

Hawaiian Airlines, 512 U.S.

The RLA also permits unions and air carriers, in forming

the board of adjustment, to exempt by agreement specific disputes
from arbitration.

See CareFlite v. Office & Prof'l Emps. Int'l

Union, AFL-CIO, 612 F.3d 314, 322 (5th Cir. 2010)(“[M]ost of our
sister circuits recognize that unions and employees can contract
to

exempt

certain

claims

from

arbitration

through

their

bargained-for CBAs.”) (citing Air Line Pilots Ass'n, Int'l v.
Delta Air Lines, Inc., 863 F.2d 87, 92-95 (D.C. Cir. 1988);
Whitaker v. Am. Airlines, Inc., 285 F.3d 940, 946-47 (11th Cir.

6

2002)

(holding

that,

where

parties

had

excluded

probationary

pilots from grieving discharge during probationary period, the
plaintiff

could

point

to

no

provision

of

the

CBA

that

was

violated by his discharge, and thus, the claim did not arise
under

the

CBA

and

was

not

a

minor

dispute

subject

to

arbitration); In re Continental Airlines, Inc., 484 F.3d 173, 183
(3d Cir. 2007) (“The RLA does not dispense with the preliminary
question of arbitrability . . . .”); Bonin v. Am. Airlines, Inc.,
621

F.2d

635

(5th

Cir.

1980)

(recognizing

that

the

RLA's

arbitration provisions apply only to disputes that arise from the
terms of agreement in a CBA, not to every dispute between an
employer

and

a

union);

Air

Line

Pilots

Ass'n

v.

Northwest,

Airlines, Inc., 627 F.2d 272 (D.C. Cir. 1980) (same)). See also
CareFlite, 612 F.3d at 323 (“[A]an air carrier and its employees'
union may, under basic contract and arbitration principles, agree
to exclude certain disputes from grievance and arbitration.”).1
“[A]rbitration is a matter of contract and a party cannot
be required to submit to arbitration any dispute which he has not
agreed so to submit.”

AT&T Techs., Inc. v. Commc’ns Workers of

Am., 475 U.S. 643, 648 (1986).

Where, as here, the parties did

not “clearly and unmistakably provide otherwise, the question of
whether the parties agreed to arbitrate is to be decided by the

1

CareFlite, 612 F.3d 314, was decided by a quorum of two judges. One
judge reasoned that a dispute was not a “minor dispute” within the meaning of
the RLA because the collective bargaining agreement expressly excluded that
dispute from its arbitration provisions. The concurring judge reasoned that,
although the dispute was a “minor dispute” within the meaning of the RLA,
“the RLA does not prohibit CareFlite and the Union from agreeing to exclude
certain minor disputes from arbitration . . . .” Id. at 325.

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court, not the arbitrator.”

Id. at 649.

“[I]n deciding whether

the parties have agreed to submit a particular grievance to
arbitration, a court is not to rule on the potential merits of
the underlying claims.”

Id.

Finally,

where the contract contains an arbitration clause, there is
a presumption of arbitrability in the sense that “[a]n
order to arbitrate the particular grievance should not be
denied unless it may be said with positive assurance that
the
arbitration
clause
is
not
susceptible
of
an
interpretation that covers the asserted dispute.
Doubts
should be resolved in favor of coverage.”
Id. at 650 (quoting United Steelworkers of Am. v. Warrior & Gulf
Navigation Co., 363 U.S. 574, 582-83 (1960)).

See also United

Steelworkers of Am. v. Commonwealth Aluminum Corp., 162 F.3d 447, 451
(6th Cir. 1998) (quoting United Steelworkers of Am. v. Mead Corp., 21
F.3d 128, 131 (6th Cir. 1994)); N.W. Airlines, Inc. v. Air Line Pilots
Ass’n, Int’l, 442 F.2d 251 (8th Cir. 1971) (applying the same rule in
an RLA case).
To summarize, if the parties have agreed to exclude certain
disputes from the grievance and arbitration procedure established by
the CBA, it cannot be said that the excluded dispute arises from a
right conferred by the CBA. Accordingly, this Court is charged with
determining whether the CBA’s arbitration provision is “susceptible of
an interpretation that covers” the termination of Elmore’s employment.
In other words, the grievance arising out of Elmore’s termination must
be submitted to the system board of adjustment grievance procedure
unless the parties agreed to exclude that dispute from that procedure.
In the case presently before the Court, plaintiff argues
that “[t]he parties [sic] dispute over Peter Elmore’s discharge

8

by NetJets’ [sic] from his position as a crewmember, including
NetJets [sic] claim the dispute is not arbitrable, are ‘minor
disputes’ that must be heard by the parties’ System Board of
Adjustment.”

Plaintiff’s Response, p. 1. Plaintiff further

argues that the “issue of arbitrability will be ‘conclusively
resolved’ by interpreting the Agreement and so must be submitted
to arbitration before the System Board of Adjustment.”
3.

Id. at p.

Plaintiff’s arguments are without merit.
Plaintiff concedes that the parties may exclude specific disputes

from the mandatory arbitration requirements of the RLA, see
Plaintiff’s Motion, pp. 14 (“There is no dispute from the Union that
management pilots cannot grieve involuntary separations from their
management pilot positions or other working conditions related to
being a manager.”), id. at p. 15 (“With respect to probationary
pilots, the parties demonstrate they clearly know how to expressly
exclude a grievance from their System Board grievance procedure,
stating that ‘[d]uring the probationary period, the crewmember may be
discharged or disciplined without recourse to the grievance
procedure.’”).

Plaintiff also concedes that it is the Court that must

determine whether the parties agreed to submit Elmore’s grievance to
arbitration.

See Plaintiff’s Response, p. 3 n.2 (“NetJets’ burden in

this case is the same under either the RLA or the LMRA, if it applied,
to demonstrate conclusively that Elmore’s grievance is excluded from
the parties’ duty to arbitrate under the Agreement.”).
Plaintiff, a labor organization and the certified bargaining
representative of the craft or class of pilots employed by defendant,

9

see Complaint, Exhibit 1, and defendant, an air carrier, established a
system board of adjustment in section § 22 of the CBA.

See CBA, §

22.1, PAGEID 172: Establishing the “NJA Pilots System Board of
Adjustment” “[i]n compliance with Section 204, Title II, of the
Railway Labor Act,” for the “purpose . . . [of] adjust[ing] and
decid[ing] disputes which may arise under the terms of [the CBA] when
such disputes have been properly submitted to the Board.”

Section

22.3 of the CBA establishes the jurisdiction of the board:
The Board will have jurisdiction over disputes between any
crewmember covered by this Agreement and the Company
growing out of grievances or out of interpretation or
application of any of the terms of this Agreement.
The
jurisdiction of the Board will not extend to proposed
changes in hours of employment, rates of compensation or
working conditions covered by existing agreements by the
parties hereto.
The Board will have no authority to
modify, amend, revise, add to, or subtract from any of the
terms or conditions of this Agreement.
CBA, § 22.3, “Jurisdiction of the Board,” PAGEID 173.

“Crewmember” is

defined in CBA § 3.17 as “a non-management pilot on the NetJets
Aviation, Inc. Pilot Seniority List.”

CBA § 3.17, PAGEID 140.

A

“management pilot” is defined in CBA § 3.45 as a “manager who holds a
seniority number on the NetJets Aviation, Inc. Seniority List.”

CBA §

3.45, PAGEID 142.
As noted supra, Peter Elmore was employed by defendant from June
18, 2001, through September 24, 2012.

See Complaint, ¶¶ 11-12;

Answer, ¶¶ 11-12; Plaintiff’s Motion, Doc. No. 27-3, at p. 1.

It is

not disputed that Elmore was employed as a “management pilot” at the
time of his termination.
Defendant’s Motion, p. 1.

See, e.g., Plaintiff’s Motion, pp. 13-14;
As a “management pilot,” Elmore could not

also have been considered a “crewmember” under the CBA because, as

10

noted supra, the definition of “crewmember” is limited to “nonmanagement pilot[s] on the NetJets Aviation, Inc. Pilot Seniority
List.”

CBA § 3.17, PAGEID 140.

Accordingly, because defendant’s

system board is vested with jurisdiction over only disputes between
crewmembers and the Company, see CBA § 22.3, PAGEID 173, defendant’s
system board had no jurisdiction to arbitrate Elmore’s grievance.
Plaintiff concedes that “management pilots cannot grieve
involuntary separations from their management pilot positions or other
working conditions related to being a manager.”
p. 14.

Plaintiff’s Motion,

Plaintiff also concedes that “[m]anagement pilots, while

serving in management positions, are not crewmembers and the terms and
conditions of the CBA do not apply to the terms and conditions of
their employment in management positions, except as expressly stated
in the CBA.”

Id.

Plaintiff argues that Elmore “does not seek to

grieve his involuntary removal from his management position.

Rather,

he only seeks to grieve the Company’s decision to terminate his
employment which extinguished his seniority and other contractual
rights that pertain to his continuance in employment as a crewmember.”
Id. (emphasis in original).

Plaintiff takes the position that, under

CBA § 3.17, Elmore was rendered a crewmember, whose grievance was
subject to arbitration, upon his termination as a management pilot.
See id. at pp. 13, 15. According to plaintiff, the definition of
“crewmember” in CBA § 3.17 as “a non-management pilot on the NetJets
Aviation, Inc. Pilot Seniority List”
leads to only one conclusion, . . . that a pilot on the
seniority list is either a crewmember or a management
pilot. When the Company removes a management pilot from a
management position, the pilot with a seniority position on

11

the list must, of necessity, instantaneously revert to
being a crewmember upon removal. There is no limbo for the
pilot, he is one or the other.
Plaintiff’s Motion, p. 15.

Plaintiff’s argument is untenable.

Plaintiff’s construction of CBA § 3.17 ignores CBA § 5.5(E),
which expressly addresses whether a pilot removed from a management
position may return to active line flying: “A management pilot removed
from his management position and retained by the Company may transfer
or return to active line flying status as set forth in this subsection
5.5, Section 19, and any other applicable provisions of this
Agreement.”

CBA § 5.5(E), PAGEID 151 (emphasis added).

A management

pilot does not, therefore, necessarily “instantaneously revert to
being a crewmember upon removal;” Plaintiff’s Motion, p. 15; rather, a
pilot may become a crewmember after having been removed from a
management position only if the pilot has been retained by the
Company.

Where, as here, a management pilot’s employment has been

terminated by the Company, the pilot cannot return to active line
flying because the pilot has not been retained by the Company.
In a related argument, plaintiff contends that the parties
intended CBA § 5.5(E) (which addresses whether a pilot removed from a
management position may return to active line flying) “to incorporate
the parties’ understanding that ‘just cause’ would apply to a
management pilot’s discharge from a line pilot position, and the
Company’s just cause determination could be grieved.”
Motion, pp. 6-7.

Plaintiff’s

Plaintiff’s argument presumes that a management

pilot is in all instances automatically transformed into a crewmember
(or a “line pilot”) upon removal from a management position.

12

However,

as discussed supra, this is simply not the case.

Nothing in the plain

language of CBA § 5.5(E) suggests that the parties intended such a
result except where the pilot has been “retained by the Company.”

See

CBA § 5.5(E), PAGEID 151.
In another related argument, plaintiff contends that, because
management pilots “maintain and accrue additional seniority while
working in a management pilot position,” the CBA must be construed to
permit them to “return to line flying crewmember positions as long as
they pay the contractually required monthly service fee to the Union
to maintain their seniority list position while holding a management
pilot position.”
unavailing.

Plaintiff’s Motion, p. 8.

This argument is equally

It is true that management pilots continue to accrue

seniority while working in a management pilot position and are
required to “pay a monthly service fee to the Union.”
5.5(B), PAGEID 148.

See CBA §

Nevertheless, there is nothing in the CBA that

suggests that the accrual of seniority or payment of union dues
vitiates the plain language of § 5.5(E).

Furthermore, plaintiff’s

arguments to the contrary notwithstanding, a management pilot directly
benefits from the requirement that he or she maintain his or her
position on the seniority list because a management pilot must appear
on the seniority list in order to perform flight duty, see CBA §
5.5(D), “Limitation on Management Pilot Line Flying,” PAGEID 293,
management pilots are furloughed according to their position on the
seniority list, see CBA § 7.10, “Management Pilots,” PAGEID 483, and a
management pilot may, in some circumstances, return to line flying
after he or she is removed from a management position.

13

See CBA §

5.5(E), “Removal from Management,” PAGEID 294.
Finally, plaintiff poses a number of hypotheticals, cites to
portions of the CBA that refer to “pilots” or “employees,” refers to
deposition testimony regarding contract negotiations leading up to the
execution of the CBA, and argues that there are “potentially
conflicting provisions” in the CBA.
12.

See Plaintiff’s Response, pp. 3-

These arguments, too, are without merit.
First, the fact that plaintiff represents defendant’s “Pilots”

does not mean that every pilot represented by plaintiff enjoys equal
rights under the CBA.

See, e.g., CBA § 5.5(B), PAGEID 148: “Except

where indicated [in the CBA], the rates of pay, rules, and working
conditions set forth in the [CBA] will not apply to management
pilots.”).

Similarly, the fact that the CBA was “made between the

Company and the union as representative of the employees composing the
craft or class of Pilots,” see Plaintiff’s Response, p. 4 (emphasis in
original), does not entitle every employee or pilot to the same rights
under the agreement.
In minimizing the incongruity between its position and the plain
language of CBA § 5.5(E), plaintiff also refers to a number of
provisions in CBA § 21, characterizing those provisions as ambiguous
or contradictory.

However, those provisions address the discharge or

discipline of a “crewmember,” not a “management pilot.”
21.1(A), 21.1(B), PAGEID 165.

See CBA §§

Those provisions simply do not apply to

Elmore, who was a “management pilot,” not a “crewmember.”
Finally, plaintiff proffers evidence intended to explain the
parties’ bargaining positions and the course of negotiations leading

14

up to the execution of the CBA.
7.

See e.g., Plaintiff’s Motion, pp. 6-

However, the Court declines to consider this parol evidence in its

construction of the plain and unambiguous language of CBA § 5.5(E).
See e.g., Godfredson v. Hess & Clark, Inc., 173 F.3d 365, 377 (6th
Cir. 1999); Constr. Interior Sys., Inc. v. Marriott Family Rests.,
Inc., 984 F.2d 749, 756 (6th Cir. 1993).
The CBA confers on the system board the jurisdiction to arbitrate
disputes “between any crewmember covered by [the CBA] and the Company
growing out of grievances or out of interpretation or application of
any of the terms of [the CBA].”

CBA § 22.3, PAGEID 173.

Because

Elmore was a “management pilot” and not a “crewmember” at the time of
the termination of his employment, see, e.g., Plaintiff’s Motion, pp.
13-14; Defendant’s Motion, p. 1, that grant of jurisdiction cannot be
read as extending to a grievance filed on behalf of Elmore.

Defendant

is therefore entitled to judgment as a matter of law.
WHEREUPON, Defendant’s Motion, Doc. No. 26, is GRANTED.
Plaintiff’s Motion, Doc. No. 27, is DENIED.

The Clerk is DIRECTED to

enter FINAL JUDGMENT.

January 3, 2014

s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge

15