Munger v. Cascade Steel Rolling Mills, Inc.
Filing
56
OPINION AND ORDER. For the reasons stated, the Court reconsiders its opinion granting in part and denying in part Cascade's motion for summary judgment, AFFIRMS its opinion, and DENIES Cascade's Motion to Certify an Interlocutory Appeal (ECF No. 46 ). The parties shall confer regarding a proposed case management schedule and file a joint proposal with the Court by February 7, 2020. IT IS SO ORDERED. Signed on 1/27/2020 by Magistrate Judge Stacie F. Beckerman. (gw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JOSEPH J. MUNGER, SR.,
Plaintiff,
Case No. 3:18-cv-00970-SB
OPINION AND ORDER
v.
CASCADE STEEL ROLLING MILLS, INC.,
Defendant.
BECKERMAN, U.S. Magistrate Judge.
Plaintiff Joseph J. Munger, Sr. (“Munger”) filed this action against his former employer
Cascade Steel Rolling Mills, Inc. (“Cascade”), alleging violations of the Family Medical Leave
Act (“FMLA”), the Oregon Family Leave Act (“OFLA”), the Oregon Sick Leave Act (“OSLA”),
and wrongful discharge. (ECF No. 1.)
On May 1, 2019, the Court granted in part and denied in part Cascade’s motion for
summary judgment, allowing only Munger’s statutory claims to proceed. (ECF No. 39.) Now
before the Court is Cascade’s Motion to Reconsider the Court’s Denial of its Motion for
Summary Judgment, or in the Alternative, to Certify Interlocutory Appeal. (ECF No. 46.) For the
PAGE 1 – OPINION AND ORDER
reasons discussed below, the Court reconsiders and affirms its denial of Cascade’s motion for
summary judgment and denies Cascade’s motion to certify an interlocutory appeal.
DISCUSSION
I.
MOTION TO RECONSIDER
Cascade asks the Court to reconsider its denial of Cascade’s motion for summary
judgment on the ground that the Court relied on “effectively overruled” case law. (Def.’s Mot. at
5.) The Court disagrees.
In its opinion denying Cascade’s motion for summary judgment on Munger’s statutory
claims, this Court followed, as it must, the Supreme Court’s opinions in 14 Penn Plaza LLC v.
Pyett, 556 U.S. 247 (2009) and Wright v. Universal Maritime Service Corporation, 525 U.S. 70
(1998). Applying this precedent, the Court held that Munger may litigate his statutory claims in
federal court, despite a prior unsuccessful arbitration, because the arbitration clause in his
collective bargaining agreement did not “clearly and unmistakably” require him to arbitrate his
statutory claims, as it did not reference statutory claims, either generally (by referencing
“statutory” claims) or specifically (by listing statutes).1 (Op. & Order at 4-10.)
In its motion, Cascade now asserts that the arbitration agreement “expressly stated that
statutory civil rights claims were subject to the arbitration procedures of the CBA[.]” (Def.’s
Mot. at 15) (emphasis added); see also Def.’s Mot. at 5 and 16 (again asserting that the
arbitration agreement referenced “statutory” claims). Cascade’s representations are inaccurate.
The relevant arbitration language did not reference “statutory” claims, nor list any statutes. (See
Decl. of Anthony Kuchulis, Jan. 15, 2019 (ECF No. 29), Ex. 2 at 54, 57) (stating that “any
dispute” shall be settled in accordance with the CBA’s grievance and arbitration procedures,
including “[c]ivil rights grievances”). Cascade was on notice when it entered into the CBA in
2016 that any arbitration language must be “clear and unmistakable.” See, e.g., Penn Plaza, 556
U.S. at 252 (finding that collective bargaining agreement language requiring arbitration of
“claims made pursuant to Title VII of the Civil Rights Act, the Americans with Disabilities Act,
the Age Discrimination in Employment Act, the New York State Human Rights Law, the New
York City Human Rights Code, . . . or any other similar laws, rules or regulations” was “clear
and unmistakable”).
1
PAGE 2 – OPINION AND ORDER
Cascade now argues that the Supreme Court’s recent opinions in Epic Systems
Corporation v. Lewis, 138 S. Ct. 1612 (2018) and Lamps Plus, Inc. v. Varela, 139 S. Ct. 1407
(2019), “effectively” overruled the portions of Penn Plaza and Wright on which this Court
relied.2 Importantly, neither the Supreme Court nor any other court has recognized any such
abrogation. Neither Epic Systems nor Lamps Plus addressed the “clear and unmistakable”
standard at issue here. Although both opinions may be viewed as more “pro arbitration” than
prior Supreme Court cases, the Supreme Court has already squared its “clear and unmistakable”
standard with its evolving arbitration jurisprudence.
In Penn Plaza, the Supreme Court acknowledged that the Court’s prior criticism of “the
use of arbitration for the vindication of statutory antidiscrimination rights . . . . rested on a
misconceived view of arbitration that this Court has since abandoned.” Penn Plaza, 556 U.S. at
265 (authored by Justice Clarence Thomas). Nevertheless, the Court endorsed Wright’s
requirement that a collective bargaining agreement’s arbitration clause must “clearly and
unmistakably” require arbitration of statutory claims. Id. at 274 (“We hold that a collectivebargaining agreement that clearly and unmistakably requires union members to arbitrate ADEA
claims is enforceable as a matter of federal law.”). Cascade argues that the Supreme Court’s
recent opinions require courts to strike down all “outdated judicial barriers to arbitration” (Def.’s
Both Epic Systems and Lamps Plus pre-dated this Court’s May 1, 2019, opinion.
Cascade did not cite either case in its motion for summary judgment, and the Court did not
discuss those cases because they were not directly relevant to the Court’s opinion. Cascade also
raises Dorman v. Charles Schwab Corporation, 934 F.3d 1107 (9th Cir. 2019), which post-dated
the Court’s opinion. In Dorman, the Ninth Circuit held that the Supreme Court’s holding in
American Express Co. v. Italian Colors Restaurant, 570 U.S. 228 (2013) overruled a prior Ninth
Circuit opinion holding that ERISA disputes are not arbitrable. Dorman, 934 F.3d at 1112. There
is no dispute here that Munger’s statutory claims are arbitrable, but the arbitration clause so
requiring must be “clear and unmistakable.”
2
PAGE 3 – OPINION AND ORDER
Mot. at 2), but the Supreme Court itself recently had the opportunity to strike down Wright’s
“clear and unmistakable” standard in Penn Plaza, but instead endorsed the standard.3
Cascade also emphasizes that the Supreme Court held in Epic Systems that the Federal
Arbitration Act’s saving clause requires a court to interpret an arbitration agreement as it would
any other contract. (Def.’s Mot. at 8-10, 11-13, 16.) By no means was that new law in 2018.
Indeed, in his concurring opinion in Lamps Plus, Justice Thomas cited Supreme Court cases
dating back to 1987 in support of his observation that “our precedents make clear and the Court
acknowledges, the Federal Arbitration Act (FAA) requires federal courts to enforce arbitration
agreements ‘just as they would ordinary contracts: in accordance with their terms’” and that
courts must “apply ‘background principles of state contract law’ when evaluating arbitration
agreements.” Lamps Plus, 139 S. Ct. at 1419. Justice Thomas was no doubt aware of this same
longstanding precedent when he penned Penn Plaza in 2009, but he nevertheless adhered to the
Court’s prior holding in Wright that a waiver of statutory claims in this context must be “clear
and unmistakable.” Penn Plaza, 556 U.S. at 274.
Cascade also asks the Court to reconsider its opinion that Munger waived his right to a
federal judicial forum by presenting his statutory claims at arbitration, but the Court stands by its
opinion that Munger’s submission of his claims to arbitration would operate as a waiver only if
the arbitration agreement “clearly and unmistakably” granted the arbitrator authority to decide
his statutory claims. (Op. & Order at 9-10.)
3
The Supreme Court has cited Penn Plaza with approval several times since 2009,
including recently for its recognition of the benefits of arbitration. See AT&T Mobility LLC v.
Concepcion, 563 U.S. 333, 344 (2011) (“And the informality of arbitral proceedings is itself
desirable, reducing the cost and increasing the speed of dispute resolution.”) (citing Penn Plaza,
556 U.S. at 269)). Cascade acknowledges that the Supreme Court also cited Penn Plaza with
approval, albeit for an unrelated holding, in Epic Systems. (Def.’s Mot. at 12 n.2.)
PAGE 4 – OPINION AND ORDER
This Court is bound by the Supreme Court’s opinions in Penn Plaza and Wright, and
those cases remain good law. Accordingly, the Court reconsiders, but adheres to, its original
opinion. See Conti v. Mayfield Vill., No. 1:19-cv-00581, 2019 WL 4941837, at *1 (N.D. Ohio
Oct. 8, 2019) (denying the defendant’s motion to reconsider summary judgment denial and
rejecting the defendant’s argument that the Court “misapplied precedent” by relying upon Penn
Plaza for its “clear and unmistakable” standard).
II.
INTERLOCUTORY APPEAL
Cascade also asks the Court to certify for interlocutory appeal its order denying
Cascade’s motion for summary judgment.
The Court may allow an interlocutory appeal based on a finding that its “order involves a
controlling question of law as to which there is substantial ground for difference of opinion and
that an immediate appeal from the order may materially advance the ultimate termination of the
litigation[.]” 28 U.S.C. § 1292(b). “Even when all three statutory criteria are satisfied, district
court judges have ‘unfettered discretion’ to deny certification.” Brizzee v. Fred Meyer Stores,
Inc., No. CV 04–1566–ST, 2008 WL 426510, at *3 (D. Or. Feb. 13, 2008) (citation omitted).
“Interlocutory appeals are limited to ‘rare circumstances’ because it is a ‘departure from the
normal rule that only final judgments are appealable.’” Brizzee, 2008 WL 426510, at *4 (citing
James v. Price Stern Sloan, Inc., 283 F.3d 1064, 1068 n.6 (9th Cir. 2002)); see also Juliana v.
United States, No. 6:15-cv-01517-AA, 2018 WL 6303774, at *2 (D. Or. Nov. 21, 2018)
(“Reserving appellate review of a district court’s decisions for after trial or a final judgment
serves several important purposes.”) “The Ninth Circuit has cautioned that § 1292(b) ‘is to be
applied sparingly and only in exceptional circumstances.’” Brizzee, 2008 WL 426510, at *4
(citing United States v. Woodbury, 263 F.2d 784, 799 n.11 (9th Cir. 1959)).
PAGE 5 – OPINION AND ORDER
Munger appears to acknowledge that the issue presented involves a controlling question
of law, and that an immediate appeal could materially advance the ultimate termination of this
litigation. (Pl.’s Resp. at 10-11.) However, Munger argues that there is no substantial ground for
a difference of opinion. (Pl.’s Resp. at 10-11.) The Court agrees.
“To demonstrate a ‘substantial ground for difference of opinion’ on a question for
§ 1292(b) certification, a party must show more than its own disagreement with a court’s ruling.”
Brizzee, 2008 WL 426510, at *4. “Courts traditionally will find that a substantial ground for
difference of opinion exists where ‘the circuits are in dispute on the question and the court of
appeals of the circuit has not spoken on the point, if complicated questions arise under foreign
law, or if novel and difficult questions of first impression are presented.’” Couch v. Telescope
Inc., 611 F.3d 629, 633 (9th Cir. 2010) (“‘[J]ust because counsel contends that one precedent
rather than another is controlling does not mean there is such a substantial difference of opinion
as will support an interlocutory appeal.’”) (citation omitted).
Here, there is no circuit split on the endurance of the Supreme Court’s “clear and
unmistakable” standard that it most recently articulated in Penn Plaza in 2009, it is not an issue
of first impression, and the Ninth Circuit has already spoken clearly on the issue. See Wawock v.
CSI Elec. Contractors, Inc., 649 F. App’x 556, 558-59 (9th Cir. 2016) (holding that a collective
bargaining agreement arbitration clause that does not refer to statutory claims “necessarily falls
short of an explicit statement” and that “[n]either historical practice nor the parties’ unexpressed
intent can fulfill [the clear and unmistakable] standard”); Salas v. Anheuser-Busch Sales of South
Bay, Inc., 650 F. App’x 445, 446 (9th Cir. 2016) (concluding that a collective bargaining
agreement arbitration clause did not satisfy the “clear and unmistakable” standard if it did not
“explicitly incorporate” the plaintiff’s statutory claims) (citing Wright, 525 U.S. at 80).
PAGE 6 – OPINION AND ORDER
Despite Cascade’s argument that the Supreme Court has “effectively” overruled Penn
Plaza and Wright, no court has so held or even speculated. See Rodriguez v. AT & T Mobility
Servs. LLC, 728 F.3d 975, 979 (9th Cir. 2013) (noting that intervening authority overturns prior
binding precedent only when cases are “clearly irreconcilable”). On the contrary, even after Epic
Systems and Lamps Plus, courts continue to apply the “clear and unmistakable” standard without
questioning whether Penn Plaza and Wright remain good law. See, e.g., Preddy v. Davidson
Hotel Co. LLC, No. 18-cv-07730-DMR, 2019 WL 3254237, at *4 (N.D. Cal. July 19, 2019)
(“The court concludes that the CBA’s reference to unspecified “Local, State, and/or Federal
Law[s]” does not constitute a “clear and unmistakable” waiver of [the plaintiff’s] right to seek
relief in court under the provisions of FEHA and CFRA.”); Conti, 2019 WL 4941837, at *2
(“Pursuant to Penn Plaza and related precedent, the Court has subject matter jurisdiction over
Conti’s claim because the collective bargaining agreement does not explicitly require statutory
§ 1983 claims’ arbitration.”).
Aside from Cascade’s speculation that the Supreme Court may rule differently if squarely
presented with the “clear and unmistakable” standard today, the Court finds that Cascade has not
demonstrated a “substantial ground for difference of opinion.” See Duarte Nursery, Inc. v. U.S.
Army Corps of Eng’rs, No. 2:13-CV-02095-KJM-DB, 2017 WL 1105993, at *9 (E.D. Cal. Mar.
24, 2017) (denying motion to certify interlocutory appeal where the plaintiffs, “in moving for
certification of an interlocutory appeal, are essentially asking th[e] court to read the tea leaves
and speculate” how the Ninth Circuit may reverse course from its prior opinions). For these
reasons, the Court denies Cascade’s motion to certify an interlocutory appeal.
CONCLUSION
For the reasons stated, the Court reconsiders its opinion granting in part and denying in
part Cascade’s motion for summary judgment, AFFIRMS its opinion, and DENIES Cascade’s
PAGE 7 – OPINION AND ORDER
Motion to Certify an Interlocutory Appeal (ECF No. 46). The parties shall confer regarding a
proposed case management schedule and file a joint proposal with the Court by February 7,
2020.
IT IS SO ORDERED.
DATED this 27th day of January, 2020.
STACIE F. BECKERMAN
United States Magistrate Judge
PAGE 8 – OPINION AND ORDER
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?