NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 18-1982

_____________

NYOKA O. REED, Appellant

v.

V.I. WATER AND POWER AUTHORITY ____________

On Appeal from the District Court of the Virgin Islands (No. 3-14-cv-00073) Chief District Judge: Hon. Juan R. Sánchez

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) December 10, 2018

Before: CHAGARES, HARDIMAN, and RESTREPO, Circuit Judges.

(Filed: July 12, 2019) ____________

OPINION ____________

CHAGARES, Circuit Judge.

Nyoka Reed, a former employee of the Virgin Islands Water and Power Authority

(“WAPA”), brings this pro se appeal challenging an order granting WAPA’s motion for

 This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. summary judgment and denying her cross-motion for partial summary judgment relating

to her claims of age discrimination, failure to abide by an arbitration award, and breach of

a collective bargaining agreement (“CBA”). For the reasons set forth below, we will

affirm.

I.

Because we write principally for the parties, we recite only those facts necessary

to our decision. Reed began working for WAPA in 1978 or 1979. From January 12,

2004 until September 23, 2013, she was employed as a Senior Cashier under the

supervision of Fernando Leonard, the Supervisor of Customer Accounts. During this

time, Reed belonged to the Utility Workers Union of America Local 602 (the “Union”),

which was a party to a CBA with WAPA. In addition to the CBA, WAPA’s Personnel

Policy and Procedure Manual (“the Manual”) governed the terms of Reed’s employment.

Reed alleges that, in 2012 and 2013, WAPA managers “referred to [her] as ‘old

and slow’ and . . . indicated to [her] that it was ‘time for her to just go’ all in reference to

[her] advanced age.” Corrected Fourth Am. Compl. ¶ 9. Reed was sixty years old at that

time. She testified that Customer Service Manager Monique Simon told her several times

in 2012 that she was old and slow, and, in September 2013, said to Reed that she might

be experiencing Alzheimer’s Disease. Reed also testified that Leonard made a single

comment to her regarding her age in 2012, when he told her that “he has a job to do and

he has to follow instructions from his superiors. And [Reed is] getting old.” WAPA

Statement of Undisputed Material Facts (“WAPA SUMF”), Ex. 1, at 74–75. Reed

testified that neither Monique Richards (Customer Service Director), nor Denise Nibbs

2 (Human Resources Director), nor Hugo Hodge (Executive Director) made negative

statements to her regarding her age.

On August 16, 2013, Reed was processing in-person transactions at a WAPA

Customer Service Office. On that date, Reed handled a transaction for $160.89. She

does not recall the exact bills that were handed to her, but she recorded receipt of $161.00

in cash and returned eleven cents to the customer. Minutes later, the customer returned to

Reed’s window and complained that he was missing $100. Reed took the customer’s

contact information and let him know that he could receive a call from the supervisor at

the end of the day or see a supervisor immediately. Moments later, Reed observed the

customer speaking with Simon. Simon then approached Reed’s station and, along with

Leonard, counted the money at the station. Simon also watched a videotape of the

transaction, which led her to conclude that the customer handed Reed more than $161.

WAPA then scheduled three hearings to investigate possible violations of the

Manual as a result of the incident. Reed attended those hearings with a union

representative, Ian Forde (President of the Union). Leonard, Richards, Nibbs, and Simon

also participated in different hearings. On September 23, 2013, Hodge informed Reed by

letter of WAPA’s finding that she received $261, rather than $161, during the transaction,

and that she was terminated for violating the Manual. The Union filed a grievance,

resulting in a hearing involving Reed, Forde, Hodge, and Nibbs. Thereafter, Hodge

informed Reed by letter on October 28, 2013 that her termination was upheld. No

reference to Reed’s age was made in her termination letter, during the grievance hearing,

or in the letter upholding her termination.

3 The Union subsequently demanded arbitration on Reed’s behalf, which she

attended on January 28, 2014, represented by counsel retained by the Union. On March

25, 2014, the arbitrator issued a decision upholding the Union’s grievance, finding that

WAPA had failed to “present clear and convincing evidence that Ms. Reed was justly

terminated.” WAPA SUMF ¶¶ 115, 116. According to the CBA, arbitration decisions

are final and binding upon the parties.

Thereafter, Forde inquired of WAPA when Reed would be reinstated and

requested “a detailed breakdown of loss of wages including all benefits from the date of

termination to present.” Id. Ex. 2, at 106–07. WAPA then sent Reed a letter informing

her that she would be reinstated effective April 22, 2014. After Reed’s reinstatement,

Forde stated to WAPA that “the reinstatement date should reflect” the date of the Union’s

successful grievance (September 25, 2013), and that, as a result, “Reed should be entitled

to back pay and all other benefits from said date.” Id. at 106. WAPA disagreed, noting

in an e-mail that the Union never “raised issues pertaining to Ms. Reed’s reinstatement

date or back pay” during the disciplinary hearings, and that the arbitration award did not

require reinstatement “to a date prior to the award” or “any form of back pay.” Id. at 105.

Forde did not institute any grievances after that e-mail.

Reed claims that although she was reinstated as a Senior Cashier, she was

reassigned to different duties, such as sorting mail and making night deposits. Reed

retired in November 2015.

Reed filed a pro se complaint against WAPA in 2014. After obtaining counsel,

Reed filed a Fourth Amended Complaint in 2016, which alleged that WAPA:

4 discriminated against her because of her age and her “participation in administrative

grievance proceedings” (count one), see Corrected Fourth Am. Compl. ¶ 32; breached the

CBA by not providing Reed certain benefits before and after her reinstatement, and did

not honor the arbitration award (count two); and defamed her by accusing her of theft

(count three). WAPA moved for summary judgment, and Reed cross-moved for

summary judgment on count two. In the briefing on the motions, Reed, through counsel,

withdrew her retaliation and defamation claims, conceding that she failed to meet her

burden on those claims. After oral argument on the motions, the District Court granted

WAPA’s motion and denied Reed’s.

Preliminarily, the court did not consider Reed’s retaliation and defamation claims,

as they had been withdrawn.1 It granted summary judgment for WAPA as to Reed’s age

discrimination claim for failure to establish a prima facie case. The District Court then

denied Reed’s cross-motion for summary judgment, and granted WAPA’s motion, on

count two. It concluded, first, that WAPA complied with the arbitration award, which

made no mention of back pay. Second, it held that Reed’s contract claim failed because

she did not exhaust the CBA grievance procedures before filing suit, nor did Reed

1 Reed’s brief before this Court does not seriously present argument as to these claims. It appears to challenge the District Court’s conclusion that Reed failed to establish a retaliation claim, but the court did not make such a determination — it did not pass upon the claim at all. And the only reference to Reed’s defamation claim in her brief is in her concluding sentence, where she requests damages for defamation. As those claims have been withdrawn by Reed’s counsel, this Court declines to consider them now. See Link v. Wabash R. Co.,

, 633–34 (1962) (explaining that parties are “bound by the acts of [their] lawyer-agent[s],” whom they voluntarily chose as their representatives). 5 establish that she was excused from complying with the CBA because the Union

breached its duty of fair representation to her or because compliance would have been

futile.

Reed, proceeding pro se, now appeals. Construing her arguments liberally, cf.

Zilich v. Lucht,

(3d Cir. 1992), we discern two challenges: first,

whether the court erred when it concluded that she failed to establish a prima facie case

of age discrimination; second, whether the court incorrectly ruled against Reed on her

claims relating to the CBA and the arbitration award.

II.

The District Court had jurisdiction under

, and we have appellate

jurisdiction under

. Our review of the disposition of motions for

summary judgment is de novo, Curley v. Klem,

(3d Cir. 2002), and we

“view[] the facts and inferences from them in the light most favorable to” the non-

movant, Crissman v. Dover Downs Entm’t Inc.,

(3d Cir. 2002).

Summary judgment is warranted if the movant demonstrates “that there is no genuine

dispute as to any material fact and [it] is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). The standard of review applicable to cross-motions for summary judgment

is no different, requiring this Court to assess “each party’s motion on an individual and

separate basis, determining, for each side, whether a judgment may be entered in

accordance with the Rule 56 standard.” Auto-Owners Ins. Co. v. Stevens & Ricci Inc.,

(3d Cir. 2016) (quoting 10A Charles Alan Wright et al., Federal

Practice & Procedure § 2720 (3d ed. 2016)).

6 III.

A.

Reed’s count one is brought pursuant to the Age Discrimination in Employment

Act (“ADEA”),

et seq., which prohibits terminating a person’s

employment due to her age,

§ 623(a)(1). To establish a prima facie case of age

discrimination, Reed must demonstrate: (1) that she is at least 40 years old; (2) that she

suffered an adverse employment action; (3) that she was qualified for the position of

Senior Cashier; and (4) either (a) that she was “replaced by another employee who was

sufficiently younger so as to support an inference of a discriminatory motive” or (b)

“facts which ‘if otherwise unexplained, are more likely than not based on the

consideration of impermissible factors.’” Willis v. UPMC Children’s Hosp. of

Pittsburgh,

(3d Cir. 2015) (quoting Pivirotto v. Innovative Sys., Inc.,

(3d Cir. 1999)). At bottom, though, Reed “must prove that age was

the ‘but-for’ cause of the employer’s adverse decision.” Gross v. FBL Fin. Servs., Inc.,

(2009). These elements apply to Reed’s ADEA claims premised on

both her termination and alleged demotion.

We agree with the District Court that Reed failed to establish a prima facie case of

age discrimination. As to her termination claim, Reed failed to present evidence that

anyone, let alone someone sufficiently younger than her, stepped into the position of

Senior Cashier when she was terminated. Willis,

. Nor did she provide

facts that permitted an inference that she was discharged because of her age.

.

The lone comment by Leonard in 2012 and Simon’s comments in 2012 and 2013 fail to

7 demonstrate that Reed’s termination was based on an impermissible consideration,

particularly because neither Leonard nor Simon made the decision to terminate Reed.

See Ezold v. Wolf, Block, Schorr & Solis-Cohen,

(3d Cir. 1992)

(“Stray remarks by non-decisionmakers or by decisionmakers unrelated to the decision

process are rarely given great weight, particularly if they were made temporally remote

from the date of decision.”). Hodge signed Reed’s termination letter and the letter

upholding her discharge, and he did not indicate, in either letter or during the grievance

hearing, that Reed’s age played a role in her discharge.

We also agree that Reed failed to establish a prima facie claim based on her

alleged demotion. Reed argued that upon her reinstatement, she was reassigned to

sorting mail and making night deposits rather than “resuming her duties as the Senior

Cashier.” Reed Br. in Opp’n to WAPA’s Mot. Summ. J. 3. She further contended that

the evidence permitted a conclusion “that the decision to demote Reed without changing

her salary was motivated by her age.” Id. at 4. But, even assuming that Reed was de

facto demoted and that this demotion constituted an adverse employment action, the only

evidence of comments or actions by WAPA employees relating to Reed’s age were those

stray remarks by Leonard and Simon, which were temporally remote and unrelated to the

purported demotion.

Finally, Reed argues that WAPA did not have a procedure to address claims of age

discrimination and that she exhausted all avenues for resolving her grievance regarding

her termination. Those arguments do not change our analysis or conclusion. First,

contrary to Reed’s assertion, the CBA does provide a procedure for handling non-

8 discipline grievances, such as claims of age discrimination. Indeed, Reed included those

very provisions in her statement of undisputed material facts. Second, the District

Court’s finding regarding Reed’s failure to exhaust concerned her breach of contract

claim, not her ADEA claims. In any event, neither the existence of a procedure to

complain of age discrimination nor the exhaustion of CBA grievance procedures as to

Reed’s termination changes the fact that Reed failed to establish a prima facie case of age

discrimination.

B.

Reed also challenges the disposition of the cross-motions for summary judgment

on her claim that WAPA breached the CBA and failed to abide by the arbitration award.

According to the Fourth Amended Complaint and the briefing before the District Court,

Reed’s argument appears to be that the Union requested that she be reinstated as of

September 2013, entitling her to back pay and benefits from that time. The failure to so

reinstate Reed and to make those payments, she claims, amounts to noncompliance with

the arbitration award. Reed also alleges that, following her reinstatement, WAPA failed

to pay into certain accounts and precluded her from participating in its Donated Leave

Program, in breach of the CBA.

We agree with the District Court that Reed’s claims fail. First, none of the

evidence to which Reed pointed supports her assertions that the Union requested back

pay and back contributions, or reinstatement to a particular date, or that the arbitrator

found that she was entitled to those remedies. Indeed, the record reflects that it was only

after the final and binding arbitration that Forde relayed to WAPA the Union’s position

9 that Reed should have been reinstated to September 25, 2013 and that she was entitled to

back pay and benefits. The arbitration award itself is silent as to any monetary award,

and Reed does not point us to any support, legal or otherwise, that an award of

reinstatement must include an award of back pay. Accordingly, Reed has not established

WAPA’s noncompliance with the arbitration award.

Next, Reed argues that WAPA breached the CBA by not paying back pay or

contributing to certain accounts during her termination, not paying into her retirement

personal loan account before and after her reinstatement, and not permitting her to

participate in the Donated Leave Program. To prevail on her claim, Reed must have

complied with the grievance procedure set forth in the CBA. See Manning v. Bouton,

(3d Cir. 1982) (“Being bound by the collective bargaining agreement,

[the employee] was not free to ignore the procedures it specifies for the pressing of

grievances by bringing suit in federal court.”). Reed argues on appeal that she

“exhausted every internal and external means of resolving [her] claims/grievance against

WAPA.” Reed Br. 2. Although, in context, this statement appears to challenge the

disposition of her ADEA claims rather than her breach of contract claim, this Court

considers, and rejects, any assertion of compliance with the grievance procedure as to

Reed’s breach of contract claim. Pursuant to the CBA, Reed was required to address her

non-discipline grievances with WAPA by notifying her immediate supervisor and

thereafter notifying other WAPA officials and proceeding to arbitration, if necessary.

There is no evidence in the record of such notification by either Reed or the Union on her

behalf.

10 Moreover, we agree with the District Court’s determination that Reed was not

excused from the exhaustion requirement due to a breach of the Union’s duty of fair

representation or the futility of complying with the CBA procedure. To establish that the

Union breached its duty of fair representation, Reed must show that the Union

discriminated against her, or acted arbitrarily or in bad faith with regard to a grievance.

Vaca v. Sipes,

(1967). She failed to do so.

Any claim that the Union breached its duty by not seeking back pay and associated

contributions after the arbitration award and after Reed’s reinstatement is meritless given

the lack of evidence proffered to show bad faith or discrimination. See Anderson v. Am.

Fed’n of Teachers,

(2017) (listing “fraud, dishonesty, and other

intentionally misleading conduct” as potential demonstrations of bad faith (quoting

Spellacy v. Airline Pilots Ass’n-Int’l,

, 126 (2d Cir. 1998))); see also id. at

786 (listing “discrimination based on . . . ‘constitutionally protected categories’” as

potential demonstrations of discrimination (quoting Simo v. Union of Needletrades,

Indus. & Textile Emps., Sw. Dist. Council,

(9th Cir. 2003))).

Likewise, that the Union did not make demands on these claims after arbitration cannot

be considered “arbitrary,” given that the arbitration award was final and binding by that

time. See

(defining as arbitrary conduct that “is so far outside a wide range of

reasonableness . . . as to be irrational” (alteration in original) (quoting Joseph v. Bureau

of Corrections,

(2011))). Reed appears to support her assertion of a

breach by noting that she sent a letter to Forde in May 2014 inquiring as to her back pay

and that he did not either respond or file a grievance. That does not demonstrate a breach

11 of the Union’s duty. See Hendricks v. Edgewater Steel Co.,

(3d Cir.

1990) (holding that employee who “made one telephone call to his union officer and

waited for the result of the investigation” and was then told to “forget about” his

grievance failed to establish a breach of the duty of fair representation).

In addition, Reed cannot be excused from the exhaustion requirement on her claim

of breach due to WAPA’s alleged failure to pay into her accounts after her reinstatement

or its alleged preclusion of her participation in the Donated Leave Program because she

did not provide evidence that she contacted the Union about those claims. See

Seborowski v. Pittsburgh Press Co.,

(3d Cir. 1999) (finding breach of

duty of fair representation exception to exhaustion requirement unavailable where

employees “never even attempted to present their cause to the Union”).

Finally, Reed’s counsel argued before the District Court that pursuing her claims

through the CBA’s grievance procedure would have been futile because the arbitration

award was final and binding, such that she could not have sought to reopen it to include

those requests. This does not, however, establish the required showing of “futility,”

particularly where the complained-of arbitration award is the result of Reed having

completed the grievance procedure with the help of Union representatives and counsel.

Cf. Glover v. St. Louis-S.F. Ry. Co.,

, 330–31 (1969) (holding, in a case

brought under Railway Labor Act, that a “formal effort to pursue contractual or

administrative remedies would be absolutely futile” where the employees’ union

representatives and employer were “acting in concert . . . to set up schemes” to bar

employees’ promotion based on race); Goclowski v. Penn Cent. Transp. Co.,

747, 758 (3d Cir. 1977) (holding, in a case brought under Railway Labor Act, that

employees need not exhaust grievance procedure where union officials “notify the

members that they are unwilling or unable to offer any relief”).2

In sum, because Reed failed to establish that she either complied with the

grievance procedure set out in the CBA or was excused from that requirement, and

because she failed to show that the arbitration award required WAPA to reinstate Reed as

of a date prior to April 22, 2014 or provide her back pay, we conclude that the District

Court properly denied Reed’s cross-motion for summary judgment as to count two and

granted WAPA’s motion instead.

IV.

For these reasons, we will affirm the judgment of the District Court.

2 We note Reed’s contention that her attorney and the District Court denied Forde the opportunity to present evidence of “his requests for [Reed] to obtain [her] specific benefits that WAPA refused and discriminated against [her] to give.” Reed Br. 6. As Reed does not provide support for that assertion, and because she is bound by her counsel’s strategic choices, Link, 370 U.S. at 633–34, this statement does not affect our analysis or conclusion. 13