Hunt v. Potter County et al

Filing 11

MEMORANDUM (Order to follow as separate docket entry) re 7 MOTION to Dismiss filed by Glenn C. Drake, II, Potter County, Susan Kefover, Angela Milford, Douglas Morley, and Paul Heimel. Signed by Honorable Matthew W. Brann on 5/17/2017. (jn)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ROY HUNT,
Plaintiff,
v.
POTTER COUNTY,
GLENN C. DRAKE, II,
SUSAN KEFOVER,
PAUL HEIMEL,
DOUGLAS MORLEY,
ANGELA MILFORD,
Defendants.

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No. 4:16-CV-01729
(Judge Brann)

MEMORANDUM OPINION
MAY 17, 2017
I.

BACKGROUND
Plaintiff was a corrections officer at the Potter County Jail for fourteen years

prior to his February 2016 termination. He brings the instant action, three counts
of First Amendment retaliation and a count pursuant to Pennsylvania’s
Whistleblower Law, against Potter County, its three county commissioners, the
county sheriff and jail warden, and the deputy warden. Defendants have moved to
dismiss the complaint asserting that the action must proceed under the terms of a
collective bargaining agreement. Because Plaintiff’s claims do not arise under, nor
require interpretation of the collective bargaining agreement, Defendants’ motion
will be denied.
1

II.

DISCUSSION
A.

Standard of Review

Under Federal Rule of Civil Procedure 12(b)(6), a defendant may file a
motion to dismiss for “failure to state a claim upon which relief can be granted.”
Such a motion “tests the legal sufficiency of a pleading” and “streamlines litigation
by dispensing with needless discovery and factfinding.”1 “Rule 12(b)(6)
authorizes a court to dismiss a claim on the basis of a dispositive issue of law.”2
This is true of any claim, “without regard to whether it is based on an outlandish
legal theory or on a close but ultimately unavailing one.”3
Beginning in 2007, the Supreme Court of the United States initiated what
some scholars have termed the Roberts Court's “civil procedure revival” by
significantly tightening the standard that district courts must apply to 12(b)(6)
motions.4 In two landmark decisions, Bell Atlantic Corporation v. Twombly and
Ashcroft v. Iqbal, the Roberts Court “changed . . . the pleading landscape” by
“signal[ing] to lower-court judges that the stricter approach some had been taking

1

In re Hydrogen Peroxide Litigation, 552 F.3d 305, 316 n.15 (3d Cir. 2008) (Scirica, C.J.)
(quoting Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 675 (7th Cir. 2001) (Easterbrook,
J.)). Neitzke v. Williams, 490 U.S. 319, 326–27 (1989).
2

Neitzke, 490 U.S. at 326 (citing Hishon v. King & Spalding, 467 U. S. 69, 73 (1984)).

3

Neitzke, 490 U.S. at 327.

4

Howard M. Wasserman, THE ROBERTS COURT AND THE CIVIL PROCEDURE REVIVAL, 31 Rev.
Litig. 313 (2012).
2

was appropriate under the Federal Rules.”5 More specifically, the Court in these
two decisions “retired” the lenient “no-set-of-facts test” set forth in Conley v.
Gibson and replaced it with a more exacting “plausibility” standard.6
Accordingly, after Twombly and Iqbal, “[t]o survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face’”7 “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.”8 “Although the
plausibility standard does not impose a probability requirement, it does require a
pleading to show more than a sheer possibility that a defendant has acted
unlawfully.”9 Moreover, “[a]sking for plausible grounds . . . calls for enough facts
to raise a reasonable expectation that discovery will reveal evidence of
[wrongdoing].”10

5

550 U.S. 544 (2007); 556 U.S. 662, 678 (2009), Wasserman, supra at 319-20.

6

Iqbal, 556 U.S. at 670 (citing Conley v. Gibson, 355 U.S. 41 (1957)) ("[a]cknowledging that
Twombly retired the Conley no-set-of-facts test").

7

Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).

8

Iqbal, 556 U.S. at 678.

9

Connelly v. Lane Const. Corp., No. 14-3792, 2016 WL 106159, at *3 (3d Cir. Jan. 11, 2016)
(Jordan, J.) (internal quotations and citations omitted).
10

Twombly, 550 U.S. at 556.
3

The plausibility determination is “a context-specific task that requires the
reviewing court to draw on its judicial experience and common sense.”11 No
matter the context, however, “[w]here a complaint pleads facts that are ‘merely
consistent with’ a defendant's liability, it ‘stops short of the line between
possibility and plausibility of entitlement to relief.’”12
When disposing of a motion to dismiss, a court must “accept as true all
factual allegations in the complaint and draw all inferences from the facts alleged
in the light most favorable to [the plaintiff].”13 However, “the tenet that a court
must accept as true all of the allegations contained in the complaint is inapplicable
to legal conclusions.”14 “After Iqbal, it is clear that conclusory or ‘bare-bones’
allegations will no longer survive a motion to dismiss.”15 “Threadbare recitals of
the elements of a cause of action, supported by mere conclusory statements, do not
suffice.”16
As a matter of procedure, the United States Court of Appeals for the Third
Circuit has instructed that:

11

Iqbal, 556 U.S. at 679.

12

Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557 (internal quotations omitted)).

13

Phillips v. Cnty. of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008) (Nygaard, J.).

14

Iqbal, 556 U.S. at 678 (internal citations omitted).

15

Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (Nygaard, J.).

16

Iqbal, 556 U.S. at 678.
4

Under the pleading regime established by Twombly and Iqbal, a court
reviewing the sufficiency of a complaint must take three steps. First, it
must tak[e] note of the elements [the] plaintiff must plead to state a
claim. Second, it should identify allegations that, because they are no
more than conclusions, are not entitled to the assumption of truth.
Finally, [w]hen there are well-pleaded factual allegations, [the] court
should assume their veracity and then determine whether they plausibly
give rise to an entitlement to relief.17
I turn now to the Plaintiff’s factual allegations, which I must accept as true
on a Rule 12(b)(6) motion.
B.

Facts alleged in the complaint

Plaintiff, Roy Hunt, hereinafter “Hunt,” was hired in 2002 as a corrections
officer at the Potter County Jail. Defendant Potter County is the government entity
that presumably owns and operates the Potter County Jail. Defendant Glenn
Drake, II, hereinafter “Drake,” is the Warden of the Potter County Jail. Defendant
Angela Milford, hereinafter “Milford,” is the Deputy Warden of the Potter County
Jail. Defendants Susan Kefover, hereinafter “Kefover;” Paul Heimel, hereinafter
“Heimel;” and Douglas Morley, hereinafter Morley,” are Potter County
Commissioners.
Hunt was both a corrections officer in the jail and a shop steward for the
jail’s labor union. “Pursuant to his official duties as shop steward, Plaintiff would
routinely participate in union activity, including[,] but not limited to[,] meeting
with Potter County and Jail management on union matter, negotiating collective
17

Connelly, 2016 WL 106159, at *4 (internal quotations and citations omitted).
5

bargaining agreements, resolving issues with working conditions, assisting
employees facing disciplinary action, filing grievances, investigating grievances,
and adjusting grievances and dispute.”18 “Plaintiff was a vocal proponent of
enforcing the collective bargaining agreements throughout his time at the jail.”19
“Traditionally, Potter County has employed the individual who is the current
Sheriff of Potter County, an elected County official, as the Warden of the jail.”20 In
2015, the incumbent sheriff did not run for re-election. Plaintiff, Defendant Drake,
and another corrections officer, Ralph Briggs, Sr., hereinafter “Briggs,” ran for the
vacant position.
“Prior to the primary election in May 2015, it came to Plaintiff’s attention
that Defendant Drake was conducting election activities on County property, in his
corrections officer uniform, and during time that he was to have been at work for
the County, in direct violation of prevailing law.”21 Hunt reported this to the
Pennsylvania Office of Attorney General. “Defendant Drake became aware of this
report almost immediately and angrily confronted Plaintiff.”22 Drake was
ultimately elected Sheriff and subsequently became the Warden of the Potter

18

ECF No. 1 at 2.

19

ECF No. 1 at 3.

20

ECF No. 1 at 3.

21

ECF No. 1 at 3.

22

ECF No. 1 at 3.
6

County Jail on January 4, 2016.
“Upon Defendant Drake’s becoming Warden of the jail, he met with
Plaintiff and a union representative and discussed leaving the election issues in the
past.”23 “Almost immediately after Defendant Drake became Warden, Defendants
Drake and Milford began to initiate unfounded disciplinary warnings for violations
of cell phone protocols instituted by Defendant Drake and allegedly witnessed by
Defendant Milford, to which Plaintiff filed grievances.”24
Drake terminated Briggs on January 13, 2016, a decision ratified by the
Potter County Commissioners on January 21, 2016. Hunt, as union steward, filed a
grievance on Briggs’s behalf. Hunt, on behalf of Briggs, ordered video
surveillance footage from the jail, because “part of the termination case against Mr.
Briggs was that he was accused of sleeping on the job, which was false.”25 Hunt
ordered the footage because “Defendants Drake and Milford, at least, were aware
of other corrections officers sleeping on the job in the jail control room, who had
not been disciplined and that this sleeping was depicted on various surveillance
tapes from February 14, 2016.”26

23

ECF No. 1 at 3.

24

ECF No. 1 at 4.

25

ECF No. 1 at 4.

26

ECF No. 1 at 4.
7

On February 18, 2016, Hunt contacted Kefover to obtain the surveillance
footage requested. Kefover told Hunt that she would have to ask “the solicitor in
order to determine if she could provide the video.”27 “On February 23, 2016,
Defendants Drake and Milford met with Plaintiff and a union representative and
terminated him” for “his ‘insubordination’ by approaching Defendant Kefover to
request the surveillance video.”28 The Potter County Commissioners later ratified
Hunt’s termination.
C.

Analysis

Hunt brings four claims against Defendants. The first three are allegations
of First Amendment retaliation pursuant to 42 U.S.C. § 1983. Count I is retaliation
in violation of his right to free speech; Count II is retaliation in violation of his
right to associate; Count III is retaliation for his political activity. Count IV is a
claim that Hunt was terminated in violation of Pennsylvania’s Whistleblower Law,
43 P.S. § 1421.
Defendants argue under both Federal Rules of Civil Procedure 12(b)(1) and
(6) that a collective bargaining agreement, hereinafter “CBA,” governs the dispute
and that Hunt did not exhaust his administrative remedies under the CBA pursuant
to Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, and his

27

ECF No. 1 at 4.

28

ECF No. 1 at 5.
8

claims are preempted by both Section 301 of the Labor Management Relations Act
and Sections 7 and 8 of the National Labor Relations Act, 29 U.S.C. § 157.29
I have reviewed with particularity the Defendants’ arguments. I believe that
they misapprehend the nature of this action. Simply by virtue of the existence of a
CBA, does not imply that Plaintiff’s claims necessarily arise out of the CBA, nor
do they require interpretation of the CBA, nor are they governed by the CBA.
Plaintiff’s claims appear independent of the CBA. Specifically,
Section 301 of the Labor Management Relations Act “LMRA” states:
Suits for violation of contracts between an employer and a labor
organization representing employees in an industry affecting commerce
... or between any such labor organizations, may be brought in any
district court of the United States having jurisdiction of the parties,
without respect to the amount in controversy or without regard to the
citizenship of the parties.30
“Congress’s purpose in enacting § 301 of the LMRA was to create a uniform
doctrine of federal labor law because “the subject matter of § 301(a) is peculiarly

29

In addition, for the first time in their reply brief, Defendants argue that the Pennsylvania Public
Employee Relations Act, 43 Pa. C.S.A. § 1101.101, et. seq., requires Hunt to submit his claims
to binding arbitration. “A Court generally will not consider arguments raised for the first time in
a reply brief. “ Black Cat Expl. & Prod., LLC v. MWW Capital Ltd., No. 1:15-CV-51-BL, 2015
WL 12731751, at *3 (N.D. Tex. Apr. 29, 2015). Local Rule 7.7 of the Middle District of
Pennsylvania sets forth that a “reply to matters argued in respondent's briefs may be filed.”
Defendants argument based on the Pennsylvania Public Employee Relations Act was not in
“reply to matters argued” in Plaintiff’s brief. Accordingly, I will not consider these arguments
that were raised for the first time in a reply brief.
30

29 U.S.C. § 185(a).
9

one that calls for uniform law.”31 “As the Supreme Court explained, because
individual contract terms could have different meanings under state and federal
law, ‘the process of negotiating an agreement would be made immeasurably more
difficult by the necessity of trying to formulate contract provisions in such a way
as to contain the same meaning under two or more systems of law which might
someday be invoked in enforcing the contract.’”32 “However, the LMRA only
pre-empts state law claims that require the interpretation of the labor agreement,
and says nothing about the substantive rights ... when adjudication of those rights
does not depend upon the interpretation of such agreements.”33
Moreover, “Section 301 [of the LMRA] preempts an application of state law
“only if such application requires the interpretation of a collective-bargaining
agreement.”34 “§ 301(a) is more than jurisdictional- it authorizes federal courts to
fashion a body of federal law for the enforcement of these collective bargaining
agreements.”35 “A state-law claim is preempted by § 301 if the claim is (1) founded

31

Casselli v. City of Philadelphia, 54 F. Supp. 3d 368, 374 (E.D. Pa. 2014) citng Teamsters v.
Lucas Flour Co., 369 U.S. 95, 103, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962) (quoting Pennsylvania R.
Co. v. Public Service Comm'n, 250 U.S. 566, 569, 40 S.Ct. 36, 63 L.Ed. 1142 (1919)) (internal
quotations omitted).
32

Caselli, supra citing Lucas Flour 369 U.S. at 103.

33

Caselli citing Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 408-09 (1988).

34

Jones v. Roadway Exp., Inc., 931 F.2d 1086, 1089 (5th Cir. 1991) citing Lingle v Norge Div.
Of Magic Chef, Inc. 486 U.S. 399, 413 (1988).

35

Textile Workers Union of Am. v. Lincoln Mills, 353 U.S. 484, 450–51 (1957).
10

directly on rights created by collective-bargaining agreements or (2) substantially
dependent on analysis of a collective bargaining agreement.”36 The preemptive
force of § 301 applies to tort as well as contract actions. Section 301 does not
preempt “state rules that proscribe conduct, or establish rights and obligations,
independent of a labor contract.”37
I review the pertinent provisions of the National Labor Relations Act at
length. Section 7 states:
Employees shall have the right to self-organization, to form, join, or
assist labor organizations, to bargain collectively through representatives
of their own choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection, and
shall also have the right to refrain from any or all of such activities
except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of
employment as authorized in section 158(a)(3) of this title.38
Section 8 of that Act states, in relevant part:
a) Unfair labor practices by employerIt shall be an unfair labor practice
for an employer-(1) to interfere with, restrain, or coerce employees in the exercise of the
rights guaranteed in section 157 of this title;
(2) to dominate or interfere with the formation or administration of any
labor organization or contribute financial or other support to it: Provided,
That subject to rules and regulations made and published by the Board
pursuant to section 156 of this title, an employer shall not be prohibited
36

Shanefelter v. U.S. Steel Corp., 784 F. Supp. 2d 550, 558 (W.D. Pa. 2011).

37

Allis–Chalmers Corp. v. Lueck, 471 U.S. 202, 219, 105 S.Ct. 1904, 1915, 85 L.Ed.2d 206
(1985).
38

29 U.S.C.A. § 157.
11

from permitting employees to confer with him during working hours
without loss of time or pay;
(3) by discrimination in regard to hire or tenure of employment or any
term or condition of employment to encourage or discourage
membership in any labor organization: Provided, That nothing in this
subchapter, or in any other statute of the United States, shall preclude an
employer from making an agreement with a labor organization (not
established, maintained, or assisted by any action defined in this
subsection as an unfair labor practice) to require as a condition of
employment membership therein on or after the thirtieth day following
the beginning of such employment or the effective date of such
agreement, whichever is the later, (i) if such labor organization is the
representative of the employees as provided in section 159(a) of this title,
in the appropriate collective-bargaining unit covered by such agreement
when made, and (ii) unless following an election held as provided in
section 159(e) of this title within one year preceding the effective date
of such agreement, the Board shall have certified that at least a majority
of the employees eligible to vote in such election have voted to rescind
the authority of such labor organization to make such an agreement:
Provided further, That no employer shall justify any discrimination
against an employee for nonmembership in a labor organization (A) if he
has reasonable grounds for believing that such membership was not
available to the employee on the same terms and conditions generally
applicable to other members, or (B) if he has reasonable grounds for
believing that membership was denied or terminated for reasons other
than the failure of the employee to tender the periodic dues and the
initiation fees uniformly required as a condition of acquiring or retaining
membership;
(4) to discharge or otherwise discriminate against an employee because
he has filed charges or given testimony under this subchapter;
(5) to refuse to bargain collectively with the representatives of his
employees, subject to the provisions of section 159(a) of this title.
*****
(c) Expression of views without threat of reprisal or force or promise of
benefit. The expressing of any views, argument, or opinion, or the
dissemination thereof, whether in written, printed, graphic, or visual
form, shall not constitute or be evidence of an unfair labor practice under
any of the provisions of this subchapter, if such expression contains no
12

threat of reprisal or force or promise of benefit.
(d) Obligation to bargain collectively. For the purposes of this section,
to bargain collectively is the performance of the mutual obligation of the
employer and the representative of the employees to meet at reasonable
times and confer in good faith with respect to wages, hours, and other
terms and conditions of employment, or the negotiation of an agreement,
or any question arising thereunder, and the execution of a written
contract incorporating any agreement reached if requested by either
party, but such obligation does not compel either party to agree to a
proposal or require the making of a concession: Provided, That where
there is in effect a collective-bargaining contract covering employees in
an industry affecting commerce, the duty to bargain collectively shall
also mean that no party to such contract shall terminate or modify such
contract, unless the party desiring such termination or modification--(1)
serves a written notice upon the other party to the contract of the
proposed termination or modification sixty days prior to the expiration
date thereof, or in the event such contract contains no expiration date,
sixty days prior to the time it is proposed to make such termination or
modification;(2) offers to meet and confer with the other party for the
purpose of negotiating a new contract or a contract containing the
proposed modifications;(3) notifies the Federal Mediation and
Conciliation Service within thirty days after such notice of the existence
of a dispute, and simultaneously therewith notifies any State or
Territorial agency established to mediate and conciliate disputes within
the State or Territory where the dispute occurred, provided no agreement
has been reached by that time; and(4) continues in full force and effect,
without resorting to strike or lock-out, all the terms and conditions of the
existing contract for a period of sixty days after such notice is given or
until the expiration date of such contract, whichever occurs later:The
duties imposed upon employers, employees, and labor organizations by
paragraphs (2) to (4) of this subsection shall become inapplicable upon
an intervening certification of the Board, under which the labor
organization or individual, which is a party to the contract, has been
superseded as or ceased to be the representative of the employees subject
to the provisions of section 159(a) of this title, and the duties so imposed
shall not be construed as requiring either party to discuss or agree to any
modification of the terms and conditions contained in a contract for a
fixed period, if such modification is to become effective before such
terms and conditions can be reopened under the provisions of the
13

contract. Any employee who engages in a strike within any notice period
specified in this subsection, or who engages in any strike within the
appropriate period specified in subsection (g) of this section, shall lose
his status as an employee of the employer engaged in the particular labor
dispute, for the purposes of sections 158, 159, and 160 of this title, but
such loss of status for such employee shall terminate if and when he is
reemployed by such employer.39
It is well-settled that “as a general rule, disputes between parties to a
collective bargaining agreement are preempted by the National Labor Relations
Act “NLRA” and are within the exclusive jurisdiction of the NLRB”40 The seminal
case in this area is the United States “Supreme Court’s decision in San Diego
Building Trades Council v. Garmon41 [is] known as Garmon preemption.”
“Garmon preemption protects the exclusive jurisdiction of the NLRB over unfair
labor practice proceedings; accordingly, if a cause of action implicates protected
concerted activity under section 7 of the NLRA or conduct that would be
prohibited as an unfair labor practice under section 8 of the NLRA, the cause of
action is preempted.”42 The National Labor Relations Act “does not preempt state
court actions where the complained of conduct is only peripherally concerned with
the NLRA.”43 “It logically follows that a state-law claim is not preempted as long
39

29 U.S.C.A. § 158.

40

Roberts v. Caesar's Entm't, Inc., 72 F. Supp. 3d 575, 583 (E.D. Pa. 2014) citing San Diego
Bldg. Trades Council v. Garmon, 359 U.S. 236 (1959).

41

359 U.S. 236 (1959).

42

Voilas v. Gen. Motors Corp., 170 F.3d 367, 378 (3d Cir. 1999).

43

Roberts, supra, citing Garmon, supra.
14

as it can be resolved without interpreting the agreement itself.”44
“Statutes that purport to establish rights that are independent of rights under
a collective bargaining agreement are not necessarily preempted even if they relate
to the agreement in some way.”45 “An employer cannot simply hide behind the
arbitration provisions of a collective bargaining agreement to bypass his or her
employees’' statutory right not to be discriminated against.”46
Many federal law claims, including First Amendment Retaliation claims,47
are not preempted by § 301 of the Labor Relations Act by the CBA.48
“Employee’s failure to utilize or exhaust remedies available under collective
bargaining agreement (CBA) did not preclude ADA claim, where her claims were
purely based on her statutory rights and did not involve contractual provisions of

44

Id. (internal citations omitted).

45

McCall v. Chesapeake & Ohio Ry. Co., 844 F.2d 294, 300 (6th Cir. 1988).

46

Id.

47

See Lohman v. Borough, No. CIV.A. 3:05-CV-1423, 2007 WL 4260943, at *3 (M.D. Pa. Nov.
29, 2007) (Caputo, J.), and see Michael v. Quaker Valley Sch. Dist., No. 2:16-CV-00473, 2017
WL 639374, at *5 (W.D. Pa. Feb. 16, 2017).
48

See Shanefelter v. U.S. Steel Corp., 784 F. Supp. 2d 550, 558 (W.D. Pa. 2011) (holding that
Plaintiff's [Title VII] retaliation claim is her only surviving cause of action, as it is not
substantially dependent on the terms of the BLA and therefore is not preempted by § 301; see
also Roberts v. Caesar's Entm't, Inc., 72 F. Supp. 3d 575, 584 (E.D. Pa. 2014) (holding that
“Although the amended complaint references the collective bargaining agreement and union
activity [including claim that Caesar's “wrongfully retaliated against them for asserting their
contractual rights to fair pay and fair working conditions under the terms of their union
collective bargaining agreement” and that Caesar's maliciously prosecuted plaintiffs and
wrongfully used civil proceedings against them “retribution for exercising their union collective
bargaining rights.” it does not assert any violation of the NLRA.).
15

CBA.”49
The United States Court of Appeals for the Ninth Circuit has held that §1983
claims of Plaintiff are not statutorily preempted:
Section 1983 provides a remedy for violation of a federal right, whether
founded in the Constitution or federal statute, unless Congress forecloses
that remedy “by providing a comprehensive enforcement mechanis[m]
for protection of [that] federal right.” Golden State Transit Corp. v. City
of Los Angeles, 493 U.S. 103, 106, 110 S.Ct. 444, 107 L.Ed.2d 420
(1989) ( “Golden State II”) (quoting Smith v. Robinson, 468 U.S. 992,
1003, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984)). Because the plaintiffs
base their § 1983 claim primarily on the violation of their federal right
of concerted action under § 7 of the NLRA, Rainbow argues that the
NLRA enforcement scheme precludes a remedy under § 1983. This
argument is clearly insufficient when applied to the governmental
defendants. As Golden State II itself makes clear, Congress in the NLRA
has provided “no comprehensive enforcement scheme for preventing
state interference with federally protected labor rights that would
foreclose the § 1983 remedy.” Id. at 108-09, 110 S.Ct. 444. It follows,
therefore, that the § 1983 claims against the public defendants are not
precluded.50
Additionally, even if Defendants had moved to compel arbitration, it would
have had no preclusive effect on the instant matter. “It is apparent, therefore, that
in a § 1983 action, an arbitration proceeding cannot provide an adequate substitute
for a judicial trial.”51 “Consequently, according preclusive effect to arbitration
awards in § 1983 actions would severely undermine the protection of federal rights

49

Nieves v. Individualized Shirts, 961 F. Supp. 782 (D.N.J. 1997).

50

Radcliffe v. Rainbow Const. Co., 254 F.3d 772, 780 (9th Cir. 2001).

51

McDonald v. City of W. Branch, Mich., 466 U.S. 284, 292 (1984).
16

that the statute is designed to provide.”52 Our Supreme Court has “held that in a §
1983 action, a federal court should not afford res judicata or collateral-estoppel to
effect an award in an arbitration proceeding brought pursuant to the terms of a
collective-bargaining agreement.”53
Finally, Hunt’s claim under the Pennsylvania Whistleblower Law,54 does not
rely on an interpretation of the CBA, but is related to Hunt’s report to the Office of
Attorney General of alleged wrongdoing and waste. This claim is therefore not
preempted either.55
III.

CONCLUSION
I will deny Defendants’ motion to dismiss, having concluded that “not every

dispute concerning employment, or tangentially involving a provision of a
collective-bargaining agreement is preempted by § 301 or other provisions of the
federal labor law.”56

52

Id.

53

Id.

54

43 P.S. § 1421.

55

See Patterson v. Exxon Mobil Corp., 262 F. Supp. 2d 453, 459 (D.N.J. 2003) (holding that
Section 301 of the LMRA did not preempt a New Jersey whistleblower claim where the issues to
be resolved do not rely on interpretation of the CBA)
56

Allis–Chalmers, 471 U.S. at 211, 105 S.Ct. 1904.
17

An appropriate Order follows.
BY THE COURT:

s/ Matthew W. Brann
Matthew W. Brann
United States District Judge

18