                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-19-2008

Hilinski v. Gordon Terminal Ser
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2779




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                     No: 06-2779

                                THOMAS HILINSKI,

                                          Appellant

                                            v.

                    GORDON TERMINAL SERVICE COMPANY
                      OF NEW JERSEY, INC., a corporation

                     Appeal from the United States District Court
                            for the District of New Jersey
                               (Civ. No. 05-cv–03843)
                        District Judge: Hon. Jose L. Linares

                   Submitted pursuant to Third Circuit LAR 34.1(a)
                                September 28, 2007

                Before: McKEE, BARRY and FISHER, Circuit Judges

                          (Opinion filed: February 19, 2008)


                                      OPINION


McKEE, Circuit Judge.

      Thomas Hilinski appeals the district court’s grant of summary judgment to

Gordon Terminal Services in his suit alleging that Gordon Terminal Services’

termination of his employment violated the Family and Medical Leave Act (“FMLA”),

29 U.S.C. § 2601 et seq., the New Jersey Law Against Discrimination (“NJLAD”),
N.J.S.A. 10:5-1 et seq., the New Jersey Family Leave Act (“NJFLA”), N.J.S.A. 34:11B-

1, and the New Jersey Workers’ Compensation Act (“WCA”), N.J.S.A. 24:15-39.1 et

seq. For the reasons that follow, we will affirm.1

                                             I.

       Hilinski makes two arguments in support of his appeal. Each is considered

separately below.2

                                A. Denial of Discovery.

       Hilinski contends that converting the motion for judgment on the pleadings to a

motion for summary judgment deprived him of discovery. He also contends that he had

no notice of the conversion. We disagree with both contentions.

       Gordon Terminals’ motion for judgment on the pleadings contained matters

outside the pleadings. Accordingly, Gordon Terminal noted in the supporting brief that

its Rule 12(c) motion could be converted into a motion for summary judgment. Hilinski

filed a “Brief in Opposition to Defendant’s Motion for Summary Judgment,” a

“Statement of Material Facts,” and supporting “Affidavit,” with exhibits. Gordon

Terminal then filed its response, supplemental Declarations, and Reply Brief in further

support of its Rule 12(c) motion.


       1
        Because we write only for the parties, we need not recite the facts or procedural
history in detail.
       2
       Our standard of review is plenary. Erie Telecommun., Inc. v. Erie, 853 F.2d
1084, 1093 (3d Cir. 1988).

                                             2
       Accordingly, assuming arguendo that Hilinski did not notice of the conversion,

Gordon Terminals’ presentation in its motion of matters outside the pleadings constituted

constructive notice of that possibility. See, e.g., Gulf Coast Bank & Trust Co. v. Reder,

355 F.3d 35, 38 (1st Cir. 2004) (constructive notice of potential conversion when

materials beyond complaint are attached to movant’s motion and non-movant has time to

oppose motion). Moreover, Hilinski’s responsive filings clearly demonstrate that he was

well-aware of the possibility of conversion. “[T]he non-moving party will not be

permitted to complain about an unnoticed conversion if [he] opposes the motion with

extrinsic materials of his own.” Baicker-McKee, Federal Civil Rules Handbook 355

(2005).

       Finally, Hilinski cannot seriously contend that he was deprived of the opportunity

for discovery because he did not file the required Rule 56(f) affidavit detailing the

necessary discovery. See, e.g., Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 511 (3d Cir.

1994) (failure to file Rule 56(f) affidavit precludes argument that party was not able to

obtain discovery).

                              B. Waiver of Judicial Forum.

       Hilinski contends that the district court erred in concluding that he waived his

right to a judicial forum in favor of arbitration under the CBA.

       The Federal Arbitration Act provides that written contracts to settle controversies

arising from the parties’ contractual relationship “shall be valid, irrevocable and


                                             3
enforceable, save upon such grounds as exist at law or in equity. . . .” 9 U.S.C. § 2; see

also Dean Witter Reynolds, Inc., 470 U.S. 213, 221 (1985). However, before compelling

arbitration, a court must engage in a limited inquiry to ensure “that a valid agreement to

arbitrate exists and that the specific dispute falls within the substantive scope of the

agreement.” PaineWebber, Inc. v. Hartmann, 921 F.2d 507, 511 (3d Cir. 1990).

       The existence vel non of an agreement to arbitrate is governed by state law

principles governing contracts. See Gruntal & Co., Inc. v. Steinberg, 854 F. Supp. 324,

334 (D.N.J. 1994) (citations omitted), aff’d, 46 F.3d 1116 (3d Cir. 1994) (Table). Under

New Jersey law, the court must determine: (1) whether the waiver provision shows a

clear intent to arbitrate a statutory claim and (2) whether Hilinski agreed to the provision.

Leodori v. CIGNA Corp., 814 A.2d 1098, 1105 (N.J. 2003). Here, Hilinski accepted

membership in the Union which, through collective bargaining, consented to the terms of

the CBA specifically requiring arbitration of any disputes regarding absenteeism. Safrit

v. Cone Mills Corp., 248 F.3d 306, 308 (4th Cir. 2001) (the right to arbitrate is a term or

condition of employment that a union may bargain for and that a union may validly

waive employees’ statutory rights to a judicial forum). Furthermore, Hilinski

acknowledged that the dispute is arbitrable by voluntarily invoking the arbitration

process. See Int’l Ass’n of Machinists & Aerospace Wks. Lodge 1777 v. Fansteel, Inc.,

900 F.2d 1005, 1009 (7th Cir. 1990) (“The party initiating arbitration has made a

decision that the dispute is arbitrable when it initiates an arbitration proceeding.”).


                                              4
Statutory claims are no exception to this general rule. Gilmer v. Interstate/Johnson Lane

Corp., 500 U.S. 20, 26-30 (1991) (finding federal age discrimination claim properly

subject to compulsory arbitration pursuant to arbitration agreement; noting also that party

does not forgo substantive statutory rights, he only submits their resolution in an arbitral

rather than a judicial forum); Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001)

(concluding same for state employment discrimination claims).

       Here, Hilinski, through the Union, advised Gordon Terminal that he was

submitting the propriety of his discharge to arbitration. Thereafter, he voluntarily

participated in the process of selecting an arbitrator, appeared at the arbitration

represented by Union counsel, presented evidence, cross-examined witnesses and

rebutted the position taken by Gordon Terminal. He did so without attempting to reserve

any alleged statutory rights to a judicial forum.3 Furthermore, both during arbitration,

and in his post-hearing brief, Hilinski voluntarily submitted his claim that several of his

absences were excused or protected under the FMLA, the NJLAD, the NJFLA and/or the

WCA, to the arbitrator.

       Although Hilinski is no doubt disappointed with the result of arbitration, under

the circumstances here, he can not now resolve his dispute in a judicial forum.

                                             II.



       3
        We will assume arguendo that any such reservation of rights would have been
enforceable despite the arbitration clause.

                                              5
       For all of the above reasons, we will affirm the district court.4




       4
       Hilinski also argues that his action is not precluded by arbitration because of the
informality of the arbitration hearing. In making that argument, he relies on Olivieri v.
Y.M.F. Carpets, Inc., 897 A.2d 1003 (2006). However, Olivieri addressed only the issue
of whether collateral estoppel could bar the relitigation of an issue previously litigated
during an unemployment hearing. It had nothing to do with whether the alleged
informality of an arbitration hearing is grounds for not precluding a later lawsuit raising
the same claims.

                                              6
