Mayo v. Bd. of Educ. of Prince George's Cnty.

Decision Date11 April 2013
Docket Number11–2037.,Nos. 11–1816,s. 11–1816
Citation713 F.3d 735
PartiesLarry C. MAYO; Leslie Carroll–Wicks; Mary Mays–Carroll; Avery Milligan; Sandra Ponoski, Plaintiffs–Appellants, v. BOARD OF EDUCATION OF PRINCE GEORGE'S COUNTY; Verjeana M. Jacobs; Association of Classified Employees/American Federation of State, County and Municipal Employees, Defendants–Appellees. Larry C. Mayo; Leslie Carroll–Wicks; Mary Mays–Carroll; Avery Milligan; Sandra Ponoski, Plaintiffs–Appellants, v. Board of Education of Prince George's County; Verjeana M. Jacobs; Association of Classified Employees/American Federation of State, County and Municipal Employees, Defendants–Appellees.
CourtU.S. Court of Appeals — Fourth Circuit

OPINION TEXT STARTS HERE

ARGUED:Richard Talbot Seymour, Law Offices of Richard T. Seymour, PLLC, Washington, D.C., for Appellants. Abbey G. Hairston, Thatcher Law Firm, Greenbelt, Maryland; Mark James Murphy, Mooney, Green, Saindon, Murphy & Welch, PC, Washington, D.C., for Appellees. ON BRIEF:Nicholas W. Woodfield, R. Scott Oswald, The Employment Law Group, P.C., Washington, D.C.; Jay P. Holland, Timothy F. Maloney, Brian J. Markovitz, Joseph, Greenwald & Laake, P.A., Greenbelt, Maryland, for Appellants. Natalie R. Bedard, Mooney, Green, Saindon, Murphy & Welch, PC, Washington, D.C., for Appellee Association of Classified Employees/American Federation of State, County and Municipal Employees; Sarah M. Burton, Thatcher Law Firm, Greenbelt, Maryland, for Appellees Board of Education of Prince George's County and Verjeana M. Jacobs.

Before NIEMEYER, GREGORY, and DAVIS, Circuit Judges.

Affirmed by published opinion. Judge NIEMEYER wrote the opinion, in which Judge GREGORY and Judge DAVIS joined.

OPINION

NIEMEYER, Circuit Judge:

Five current or former temporary employees (the “Temporary Employees”) of the Board of Education of Prince George's County, Maryland (School Board) filed a class action complaint in the Circuit Court for Prince George's County, asserting employee-compensation claims against the School Board, its chair, and the Association of Classified Employees/American Federation of State, County and Municipal Employees, AFL–CIO, Local 2250 (the Union). They alleged that even though the collective bargaining agreement (“CBA”) excluded “temporary employees” from the bargaining unit, they were entitled to the benefits of an arbitration award entered as the result of an arbitration between the School Board and the Union, as well as benefits from the underlying CBA.

The School Board and its chair filed a notice of removal to federal court, which included a statement that the Union also agreed to the removal, and all defendants thereafter filed motions to dismiss for failure to state a claim. The Temporary Employees not only opposed the motions to dismiss but also filed a motion to remand, arguing that the removal was invalid because the Union did not timely file its own notice of removal or other paper giving its consent in writing. The district court denied the Temporary Employees' motion to remand and entered an order under Federal Rule of Civil Procedure 12(b)(6), dismissing the complaint for failure to state a claim. After filing a notice of appeal from the order of dismissal, the Temporary Employees also filed a motion in the district court for reconsideration of its dismissal order. The district court granted the defendants' motion to strike the motion for reconsideration. The Temporary Employees then filed a second notice of appeal from that order.

We affirm on both appeals, concluding (1) that the Union adequately consented to the notice of removal; (2) that the Temporary Employees' complaint failed to state a claim for relief; and (3) that the district court did not err in striking the Temporary Employees' motion for reconsideration.

I

The School Board and the Union were parties to a CBA that covered “all employees of the Board who are contained within the bargaining unit represented by the Union” for the period July 1, 2007, through June 30, 2010. Article 2, § 1 of the CBA defined the bargaining unit to include “all classified employees of Prince George's County Public Schools with the exception[ ] of” certain employees, including [t]emporary employees.” And to protect the work positions for members of the bargaining unit, Article 7, § 17 of the CBA provided:

A substitute or temporary employee will not be used to fill an authorized position in excess of sixty (60) working days except (1) when a qualified individual is not available to fill a position on a permanent basis or (2) where necessary to hold a position for a person on an approved leave of absence or (3) to preserve a vacancy for an employee currently assigned to a position scheduled to be eliminated (e.g., school closings, budget reductions, reorganization).

During wage-related negotiations in July 2008, the School Board provided the Union, at the Union's request, with a list identifying the substitute and temporary employees in the School Board's employ and giving information about them. The list included 2,180 such employees, many of whom had been employed by the School Board in the same position for more than 60 days and were performing the same duties as permanent classified employees who, as members of the bargaining unit, received higher pay and benefits. After receiving this information, the Union filed a grievance against the School Board, contending that the School Board's practice of hiring substitute and temporary employees violated Article 7, § 17 of the CBA. The grievance thereafter proceeded to arbitration.

In a decision dated July 8, 2009, the arbitrator concluded that the School Board had indeed violated the CBA by “employ[ing] substitute and temporary employees to fill what would be permanent positions but for the failure of the Board to establish those positions pursuant to the terms of the Agreement, and to seek their funding as [full-time equivalent employees] through the budgeting process.” The arbitrator found that Article 7, § 17 “specifically was negotiated as a limitation on the ability of the Board to employ substitute and temporary employees to perform bargaining unit work” and that “the issue is the preservation of bargaining unit work for bargaining unit personnel, not the identity of the specific substitute or temporary employee who may be filling a position at any particular time.” Although the arbitrator concluded that the Board had violated Article 7, § 17, he acknowledged that the scope of the violation was unclear. Accordingly, he instructed the parties to identify [t]hose positions filled for in excess of 60 days by substitute and temporary employees that comprise duties covered by existing bargaining unit classifications,” clarifying that “those that amount to bargaining unit positions are covered by this Award, and those that do not, are not.”

The arbitrator tailored relief to three relevant periods of time. He determined that [n]o remedy [was] warranted for the period of the violation occurring prior to the filing of the grievance,” because “the Union's long silence” would make any remedy “grossly unfair and inequitable.” For the period going forward, however, the arbitrator directed that the School Board cease its practice of “circumvent[ing] the terms of the Agreement by using substitute or temporary employees” to do work that should have been performed by “classified position[s],” emphasizing that “this ruling is tied not to the individual being employed on a substitute or temporary basis, but rather is tied to the position that is being filled by a substitute or temporary employee, whomever the individual happens to be.” Finally, for the period between the Union's filing of the grievance and the School Board's compliance with the award, the arbitrator concluded that “it would be inappropriate to order the conversion to permanent status of those substitute and temporary employees who ultimately are found ... to have filled what should have been permanent classified positions.” The arbitrator explained that there was no evidence that the School Board and the Union had discussed the “automatic conversion of substitute and temporary employees under such circumstances” and that, in the absence of such evidence, ordering such a conversion would be inappropriate given “the numerous important questions, unanswered on this record, that normally are addressed upon the hiring of an individual into a permanent position.” Subject to the “proviso that retroactive conversion of the incumbents ... is not warranted,” the arbitrator “return[ed] to the parties for settlement in the first instance, along with several other unresolved remedial questions, the question of appropriate remedy for the period of time between the filing of the grievance and the Board's compliance with this Award.”

As directed by the arbitrator, the Union and the School Board reached a settlement regarding the issues committed to them and reduced the settlement to a memorandum of understanding dated May 13, 2010. Under the settlement, the School Board agreed to pay the Union just over $1 million as “backpay amounts.” The School Board also agreed to hire a minimum number of additional full-time bargaining unit employees by specified targeted dates.

On March 11, 2011, five current or former temporary employees of the School BoardLarry Mayo, Leslie Carroll–Wicks, Mary Mays–Carroll, Sandra Ponoski, and Avery Milligan—filed a class action complaint in the Circuit Court for Prince George's County, Maryland, naming as defendants the School Board, Verjeana Jacobs (in her capacity as Chair of the School Board), and the Union. They purported to represent a class defined as [a]ll present and former Temporary Employees of the Board and its Chair performing duties covered by a CBA bargaining unit classification ... for in excess of 60 days.” In Count I, the Temporary Employees sought a declaratory judgment “that the Arbitration Award is...

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