PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 19-2754
____________
BRADLEY G. DARRINGTON; VAL DARRINGTON
v.
MILTON HERSHEY SCHOOL,
Appellant
____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 5-18-cv-04265)
District Judge: Honorable Gerald J. Pappert
____________
Argued: April 1, 2020
Before: GREENAWAY, JR., PORTER, and MATEY,
Circuit Judges.
(Filed: May 6, 2020)
____________
Casey A. Coyle
Michael D. Jones [Argued]
Rachel E. King
ECKERT SEAMANS CHERIN & MELLOTT
50 South 16th Street
Two Liberty Place, 22nd Floor
Philadelphia, PA 19102
Mark A. Fontana
ECKERT SEAMANS CHERIN & MELLOTT
213 Market Street, 8th Floor
Harrisburg, PA 17101
Counsel for Appellant Milton Hershey School
Katherine C. Oeltjen [Argued]
Fernando I. Rivera
CONSOLE MATTIACCI LAW
1525 Locust Street
9th Floor
Philadelphia, PA 19102
Counsel for Appellees Bradley G. Darrington and Val
Darrington
____________
OPINION OF THE COURT
____________
PORTER, Circuit Judge.
Bradley and Val Darrington sued the Milton Hershey
School (“MHS”), their former employer, in the District Court
for employment discrimination and retaliation. MHS moved to
compel arbitration under the collective bargaining agreement
(“CBA”) it entered into with the Darringtons’ Union. The
District Court denied the motion. Because the CBA clearly and
unmistakably waives a judicial forum for the Darringtons’
statutory discrimination claims, we will reverse.
I
MHS is a free, private, non-denominational school that
houses and teaches students from diverse social and economic
backgrounds. MHS hired the Darringtons to work as full-time
houseparents in one of its student homes. While working at
MHS, the Darringtons were members of the Bakery,
Confectionary, Tobacco Workers & Grain Millers
International Local Union 464 (“Union”).
2
A
The Union is “the exclusive collective bargaining
representative for all full-time houseparents . . . employed by
[MHS] . . . regarding wages, hours[,] and other terms and
conditions of employment.” App. 81. Thus, when the Union
entered into the CBA with MHS, the CBA bound its members,
including the Darringtons.
Section 9.1 of the CBA details the grievances governed
by the CBA’s arbitration procedure. The CBA’s arbitration
provision covers “any dispute arising out of [its] terms and
conditions,” including the “discipline or discharge” of Union
members. App. 92. A grievance includes “any dispute alleging
discrimination against any [Union members] based upon
membership in any protected categories under federal or state
law and/or as set forth in Section 10.1 of [the CBA].” Id.
Section 10.1 contains the CBA’s non-discrimination provision,
which states that “[t]he Union and [MHS] will not discriminate
against employees or applicants on the basis of race, color,
religion, age (40 and above), sex, national origin, disability
status, and membership or non-membership in the Union.” Id.
at 96.
MHS and the Union agreed “that the Union, on behalf
of itself and the allegedly aggrieved [Union members], waives,
releases[,] and discharges any right to institute or maintain any
private lawsuit alleging employment discrimination in any
state or federal court regarding the matters encompassed within
this grievance procedure.” Id. at 93. The CBA “sets forth the
exclusive procedure for resolution of disputes arising out of the
terms and conditions of [the CBA] or the discipline or
discharge of” a Union member. Id.
In short, if aggrieved Union members are unsatisfied
with the resolution of their disputes after discussions with
MHS officials, “the Union [may seek] further consideration of
the grievance” by submitting the grievance to arbitration on
their behalf. Id. at 94.
B
In their role as houseparents, the Darringtons attended
and participated in religious programming offered by MHS.
3
Throughout their employment, the Darringtons voiced their
concern to MHS administrators that some of the programming
was discriminatory and offensive. Believing that a chapel
service and sermon constituted “child abuse,” Bradley
Darrington filed a report with the local state agency for
children and youth services. App. 24. The Department
dismissed the report the next day
Bradley then filed a charge of discrimination with the
Equal Employment Opportunity Commission and the
Pennsylvania Human Relations Commission alleging that
MHS’s mandatory religious programming discriminated
against him based on his religion. Less than two months after
Bradley filed the charges, MHS fired the Darringtons. The
Darringtons then filed two more charges of discrimination with
the EEOC and the PHRC.
After receiving right-to-sue letters from the EEOC on
all three charges, the Darringtons filed a complaint in the
District Court alleging discrimination and retaliation in
violation of Title VII, 42 U.S.C. § 2000e, et seq., and the
Pennsylvania Human Relations Act, 43 Pa. Stat. §§ 951–63.
MHS moved to compel arbitration under the CBA. The District
Court denied the motion because it found that the CBA “does
not clearly and unmistakably waive [the Darringtons’] right to
bring their statutory discrimination [(including retaliation)]
claims in federal court.” App. 10–11. MHS timely appealed.
II
The District Court had subject-matter jurisdiction under
28 U.S.C. §§ 1331 and 1367. We have appellate jurisdiction
over orders denying a motion to compel arbitration under the
Federal Arbitration Act, 9 U.S.C. § 16(a)(1)(A)–(B). See
Harris v. Green Tree Fin. Corp., 183 F.3d 173, 176 (3d Cir.
1999). We review de novo the arbitrability of the Darringtons’
claims. Jones v. Does 1–10, 857 F.3d 508, 511 n.2 (3d Cir.
2017) (citation omitted).
III
A collective bargaining agreement can waive a judicial
forum for union members’ statutory claims only if the waiver
is clear and unmistakable. See Wright v. Universal Mar. Serv.
4
Corp., 525 U.S. 70, 79–82 (1998). The Supreme Court and this
Court have not defined the contours of the clear-and-
unmistakable-waiver standard. Using ordinary tools of
contract interpretation, we find that the CBA clearly and
unmistakably waived the Darringtons’ right to a judicial forum
for their statutory claims.
A
We must answer “the question of whether the parties
agreed to arbitrate.” AT&T Tech., Inc. v. Commc’ns Workers
of Am., 475 U.S. 643, 649 (1986). And when deciding whether
to compel arbitration, we must consider the enforceability and
the scope of the contract’s arbitration provision. See In re
Remicade (Direct Purchaser) Antitrust Litig., 938 F.3d 515,
519 (3d Cir. 2019) (citation omitted).1
Thus, we ask “whether the merits-based dispute in
question falls within the scope of that valid agreement.”
Century Indem. Co. v. Certain Underwriters at Lloyd’s,
London, 584 F.3d 513, 527 (3d Cir. 2009) (citation omitted).
The parties dispute only whether the Darringtons’ merits-based
disputes—their statutory discrimination claims—“fall[ ]
within the scope of” the CBA’s arbitration provision. See id.2
1
Neither party disputes the enforceability of the CBA’s
arbitration provision, so we need not address it. See Durham
Life Ins. Co. v. Evans, 166 F.3d 139, 159 n.15 (3d Cir. 1999).
In any event, “so long as the collective bargaining agreement
explicitly states that an employee must resolve his statutory as
well as his contractual rights through the grievance procedure,”
the arbitration provision is enforceable. See Vega v. New
Forest Home Cemetery, LLC, 856 F.3d 1130, 1134 (7th Cir.
2017) (citing 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 258–
59, 274 (2009)).
2
Because the Federal Arbitration Act established “a liberal
federal policy favoring arbitration agreements,” Epic System
Corp. v. Lewis, 138 S. Ct. 1612, 1621 (2018) (citation omitted),
we generally apply a “presumption of arbitrability” when
reviewing arbitration provisions. Wright v. Universal Mar.
Serv. Corp., 525 U.S. 70, 78 (1998) (citations omitted). The
presumption of arbitrability is not relevant here, however,
5
1
A federal-statutory-discrimination dispute falls within
the scope of a collective bargaining agreement’s arbitration
provision “when (1) the arbitration provision clearly and
unmistakably waives the employee’s ability to vindicate his or
her federal statutory right in court; and (2) the federal statute
does not exclude arbitration as an appropriate forum.” Jones,
857 F.3d at 512 (citing 14 Penn Plaza LLC v. Pyett, 556 U.S.
247, 260 (2009)). Title VII claims are arbitrable. Seus v. John
Nuveen & Co., 146 F.3d 175, 182 (3d Cir. 1998) (collecting
cases); see also 14 Penn Plaza, 556 U.S. at 256 n.5 (suggesting
that Title VII claims are arbitrable).
2
When considering the Darringtons’ state-law PHRA
claims, we need not consider whether the PHRA excludes
arbitration as an appropriate forum. That is so because the FAA
preempts “any state rule” that facially or covertly prohibits
arbitration. See Kindred Nursing Ctrs. Ltd. P’ship v. Clark, 137
S. Ct. 1421, 1426 (citing AT&T Mobility LLC v. Concepcion,
563 U.S. 333, 341 (2011)); see also Concepcion, 563 U.S. at
343 (noting that although the FAA “preserves generally
applicable contract defenses, nothing in it suggests an intent to
preserve state-law rules that stand as an obstacle to the
accomplishment of the FAA’s objectives”).3
We have not decided whether the clear-and-
unmistakable-waiver standard applies to the arbitrability of
state law claims—such as those brought under the PHRA. See,
e.g., Maldonado v. SecTek, Inc., No. 19-693, 2019 WL
3759451, at *6 (E.D. Pa. Aug. 8, 2019). The Supreme Court
because it does not apply to waiver of a judicial forum for
statutory claims. See id.
3
Regardless, under Pennsylvania law, if a valid arbitration
agreement exists and a dispute falls within the agreement’s
scope, then the dispute must be arbitrated. See Messa v. State
Farm Ins. Co., 641 A.2d 1167, 1168 (Pa. 1994); see also 42
Pa. Cons. Stat. § 7304. The Darringtons do not contend that the
arbitration agreement is invalid. So their PHRA claims are
arbitrable if they fall within the CBA’s scope.
6
has said that the FAA preempts state laws that stand “as an
obstacle to the accomplishment and execution of the full
purposes and objectives” of the FAA. Concepcion, 563 U.S. at
352. So if a state law for the waiver of a judicial forum provides
a more onerous standard than the clear-and-unmistakable-
waiver standard, then it is preempted by the FAA.
To answer the question of whether the FAA preempts
Pennsylvania law regarding the standard for assessing the
waiver of a judicial forum for state statutory rights, we first
look to Pennsylvania court decisions in that realm. Based on
this Court’s review, however, Pennsylvania has not explained
what standard governs the waiver of a judicial forum for state
statutory claims in a CBA.
Because of the Supreme Court’s FAA preemption
decisions, we know that Pennsylvania could adopt the clear-
and-unmistakable-waiver standard, the most exacting standard
possible. As we explain below, even under this standard, the
Darringtons waived a judicial forum for their state claims
under the PHRA.
The Supreme Court’s discussion in Wright supports this
conclusion. Wright articulated the clear-and-unmistakable-
waiver standard while talking about “statutory claims”
generally and not just federal statutory rights. See generally
Wright, 525 U.S. at 79–81. We see no reason to review the
waiver of a judicial forum for state statutory claims under a
standard different from that for the waiver of a judicial forum
for federal statutory claims.
7
B
We turn to the primary question: whether the CBA
clearly and unmistakably waives the Darringtons’ right to
vindicate their statutory antidiscrimination rights in court.4
The clear-and-unmistakable-waiver standard ensures
that “very general” arbitration clauses cannot waive a judicial
forum for vindication of statutory rights. See Wright, 525 U.S.
at 80. Rather, a clear and unmistakable waiver of a judicial
forum for “statutory antidiscrimination claims [must] be
‘explicitly stated’ in the collective bargaining agreement.” 14
Penn Plaza, 556 U.S. at 258 (quoting Wright, 525 U.S. at 80).
In Wright, the Court concluded that a collective
bargaining agreement that required arbitration of “matters
under dispute” did not clearly and unmistakably waive a
judicial forum for a union member’s claims under the
Americans with Disabilities Act. 525 U.S. at 80. Three reasons
animated the Court’s decision. First, the “very general” phrase
“matters under dispute” could be interpreted to refer only to
contractual matters. Id. at 80. Second, the rest of the collective
bargaining agreement did not explicitly incorporate statutory
antidiscrimination requirements. Id. Third, the collective
bargaining agreement did not require compliance with the
ADA. Id. at 81.5
4
The parties assume that Pennsylvania contract-interpretation
principles govern the CBA, and we agree. See, e.g., In re
Remicade, 938 F.3d at 523 n.5 (interpreting a collective
bargaining agreement under New Jersey law because the
parties assumed New Jersey law applied). Pennsylvania’s
contract-interpretation rules require us to provide the contract’s
“clear and unambiguous” words with their “commonly
accepted and plain meaning.” LJL Transp., Inc. v. Pilot Air
Freight Corp., 962 A.2d 639, 647 (Pa. 2009) (citations
omitted).
5
In a recent case, 14 Penn Plaza, the Supreme Court did not
address whether the arbitration provision—requiring that “[a]ll
[discrimination claims under federal or state law] shall be
subject to the grievance and arbitration procedure”—was a
clear and unmistakable waiver. 556 U.S. at 252.
8
Some of our sister circuits have developed bright-line
approaches for identifying clear and unmistakable waivers.
One approach finds a clear and unmistakable waiver when a
collective bargaining agreement “explicitly mentions
employee rights under [the relevant statute] or any other
federal anti-discrimination statute[.]” Quint v. A.E. Staley Mfg.
Co., 172 F.3d 1, 9 (1st Cir. 1999); see also Cavallaro v. UMass
Mem’l Healthcare, Inc., 678 F.3d 1, 7 n.7 (1st Cir. 2012)
(explaining that the clear-and-unmistakable-waiver standard
required “something closer to specific enumeration of the
statutory claims to be arbitrated”).6
Another approach finds a clear and unmistakable waiver
when (1) an arbitration provision requires employees “to
submit to arbitration all federal causes of action arising out of
their employment,” Carson v. Giant Food, Inc., 175 F.3d 325,
331 (4th Cir. 1999), or (2) a general arbitration clause
“referring to ‘all disputes’” is accompanied by “an ‘explicit
incorporation of statutory antidiscrimination requirements’
elsewhere in the contract,” id. at 332 (quoting Wright, 525 U.S.
6
The Sixth and Seventh Circuits also endorse this approach.
See, e.g., Bratten v. SSI Servs., Inc., 185 F.3d 625, 631 (6th Cir.
1999) (explaining that “a statute must specifically be
mentioned in a [collective bargaining agreement] for it to even
approach” the clear-and-unmistakable-waiver standard); Vega,
856 F.3d at 1135 (holding that a collective bargaining
agreement did not clearly and unmistakably waive a judicial
forum for rights under the Fair Labor Standards Act when
neither the arbitration provision nor the collective bargaining
agreement referenced the FLSA).
9
at 80); see also Aleman v. Chugach Support Servs., Inc., 485
F.3d 206, 216 (4th Cir. 2007) (citations omitted).7
In our view, Wright requires nothing more than it says.
The clear-and-unmistakable-waiver standard is satisfied if a
collective bargaining agreement, interpreted according to
applicable contract-interpretation principles, clearly and
unmistakably waives a judicial forum for statutory claims. An
arbitration provision’s waiver of a judicial forum for statutory
claims must merely be “particularly clear” and “explicitly
stated.” Wright, 525 U.S. at 79–80 (citation omitted).
The bright-line approaches fashioned by our sister
circuits may create clear expectations for bargaining parties
and may prompt precise contract drafting. Indeed, it may be
helpful for a court’s analysis if bargaining parties specifically
list the statutes for which they intend to waive a judicial forum.
But that approach may also invite drafting mistakes and cause
unintended gaps as the statutory landscape changes. The
standard enunciated in Wright does not require magic words or
prescribe any bright-line approach requiring enumeration of
statutes, so we decline to adopt one.
Our approach finds support in our recent decision in
Jones v. Does 1–10. In Jones, the collective bargaining
agreement “explicitly provide[d] that ‘[a]ll claims that an
employee has been discriminated against . . . in violation of
applicable federal, state or local law shall be subject to the
grievance and arbitration procedure as the sole and exclusive
remedy for violations.’” 857 F.3d at 513 n.17. The collective
7
The Second, Fifth, and Eighth Circuits also embrace this
approach. See, e.g., Lawrence v. Sol G. Atlas Realty Co., 841
F.3d 81, 84 (2d Cir. 2016); Ibarra v. UPS, 695 F.3d 354, 360
(5th Cir. 2012); cf. Abdullayeva v. Attending Homecare Servs.
LLC, 928 F.3d 218, 223–24 (2d Cir. 2019) (finding a clear and
unmistakable waiver when the collective bargaining agreement
required arbitration of claims under specifically listed statutes);
Thompson v. Air Transp. Int’l Ltd. Liab. Co., 664 F.3d 723,
726 (8th Cir. 2011) (accepting, without comment, the
plaintiff’s concession that the arbitration provision covering
employment discrimination “alleged to be violations of state or
federal law” was a clear and unmistakable waiver).
10
bargaining agreement did not have a “similar provision for
[Fair Labor Standards Act] disputes.” Id. We therefore agreed
with the parties’ concession that the collective bargaining
agreement lacked “a clear and unmistakable waiver of the
employees’ right to vindicate their FLSA claims in federal
court.” Id. at 513. Jones thus implied that the collective
bargaining agreement clearly and unmistakably waived a
judicial forum for statutory claims of discrimination even
though it did not individually enumerate specific statutes.
Here, “the Union, on behalf of itself and the allegedly
aggrieved [Union members], waive[d] . . . any right to institute
or maintain any private lawsuit alleging employment
discrimination in any state or federal court regarding the
matters encompassed within this grievance procedure.” App.
93 (emphasis added). The grievance procedure encompassed
“any dispute alleging discrimination” by MHS against Union
members “based upon membership in any protected categories
under federal or state law and/or as set forth in Section 10.1 of
[the CBA].” Id. at 92 (emphasis added).
The CBA’s arbitration provision is broad, but it is also
clear and unmistakable. The plain and ordinary meaning of
“any” in the context of affirmative sentences like the ones in
the CBA is “every” or “all.” See Bryan Garner, Any, Garner’s
Modern English Usage 57 (4th ed. 2015); see also Any, Oxford
English Dictionary https://www.oed.com/view/Entry/8973
(last visited May 4, 2020) (noting that the use of any “in
affirmative contexts” is “used to refer to a member of a
particular group or class without distinction or limitation
(hence implying every member of the class or group, since
every one may in turn be taken as a representative)”);8 see, e.g.,
Massachusetts v. E.P.A., 549 U.S. 497, 528–29 (2007)
(describing the Clean Air Act’s “sweeping definition” that
repeatedly used “any”).
By its plain terms, the CBA’s arbitration provision
waived the Darringtons’ right to sue in state or federal court for
8
When interpreting contracts under Pennsylvania law, courts
“may look to dictionary definitions to” determine the plain
meaning of a contract. Commonwealth ex rel. Shapiro v.
UPMC, 208 A.3d 898, 906 (Pa. 2019).
11
disputes alleging discrimination based on membership in
categories protected by federal law, state law, or Section 10.1
of the CBA.9 The arbitration provision’s reference to “any
dispute alleging discrimination . . . based upon membership in
any protected categories under federal or state law” clearly and
unmistakably includes within its scope the Darringtons’ claims
under Title VII and the PHRA. App. 92. That is all the clear-
and-unmistakable-waiver standard requires.
* * *
Because the CBA clearly and unmistakably waives a
judicial forum for the Darringtons’ statutory discrimination
claims, we will reverse the District Court’s order denying
MHS’s motion to compel arbitration and order the District
Court to enter an order consistent with this opinion.
9
The Darringtons argue that the CBA “does not reference
retaliation or claims for retaliation for engaging in protected
activity.” Appellee’s Br. at 7; see also id. at 17. The argument
is unavailing. “Retaliation is . . . a form of ‘discrimination’
because the complainant is subjected to differential treatment.”
Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 173–74
(2005). Any argument that retaliation was not clearly within
the scope of the term “discrimination” here is belied by the fact
that the Darringtons’ EEOC filings indicated that “retaliation”
was the “cause of discrimination” that motivated their filing.
App. 208–14. The CBA’s arbitration provision covering
disputes alleging “discrimination” thus necessarily includes
their claims alleging retaliation.
12