UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
JASPER WASHINGTON, JR., Plaintiff v. Civil Action No. 16-1283 (CKK) ALLIEDBARTON SECURITY SERVICES, LLC, Defendant
MEMORANDUM OPINION (February 5, 2018)
This case returns to the Court on remand from the United States Court of Appeals for the
District of Columbia Circuit (“D.C. Circuit”), with instructions to consider whether Plaintiff’s
lawsuit can go forward under Section 301 of the Labor Management Relations Act (“LMRA”).
The gravamen of Plaintiff’s Complaint in this case is that he was treated unfairly when his
employment as a security guard with the Defendant, AlliedBarton Security Services, LLC
(“AlliedBarton”), was terminated. He also complains about various other issues both pre- and
post-dating his termination. Plaintiff initially brought his case as one for breach of contract
under District of Columbia law, which the Court dismissed because it was preempted by the
Section 301 of the LMRA. The D.C. Circuit affirmed the Court’s decision in-part, in that it
agreed that Plaintiff’s state law claims were preempted. However, the D.C. Circuit remanded the
case for this Court to decide whether Plaintiff’s pleadings could be viewed as stating a claim
under Section 301.
Now before the Court is Defendant’s [37] Second Motion to Dismiss. Defendant argues
that Plaintiff fails to state a claim under Section 301 because any such claim would be untimely.
The Court agrees. Plaintiff’s allegations, although somewhat difficult to understand, are best
characterized as asserting what is known as a “hybrid § 301/fair representation claim.” A six
1 month statute of limitations applies to such a claim, and Plaintiff’s Complaint was filed far
outside of this statutory period. Accordingly, upon consideration of the pleadings 1, the relevant
legal authorities, and the record for purposes of this motion, the Court GRANTS Defendant’s
Motion and once again DISMISSES this case.
I. BACKGROUND
A. Factual Allegations in Plaintiff’s Pre-Remand Pleadings
The Court begins by recounting the allegations in Plaintiff’s pleadings as they existed
before the remand in this case. For the purposes of the currently-pending motion, the Court
accepts as true the well-pleaded allegations in Plaintiff’s Complaint. The Court does “not accept
as true, however, the plaintiff’s legal conclusions or inferences that are unsupported by the facts
alleged.” Ralls Corp. v. Comm. on Foreign Inv. in U.S., 758 F.3d 296, 315 (D.C. Cir. 2014).
Further, because Plaintiff proceeds in this matter pro se, the Court must consider not only the
facts alleged in Plaintiff’s Complaint, but also the facts alleged in the various other documents
Plaintiff has filed thus far in this case. See Brown v. Whole Foods Mkt. Grp., Inc., 789 F.3d 146,
152 (D.C. Cir. 2015) (“a district court errs in failing to consider a pro se litigant’s complaint ‘in
light of’ all filings, including filings responsive to a motion to dismiss”) (quoting Richardson v.
1 The Court’s consideration has focused primarily on the following documents, although the Court has considered all of the pleadings in the case, including those that pre-date the remand: • Pl.’s “The Order of the Court,” ECF No. 36; • Def.’s Mem. in Support of Second Mot. to Dismiss, ECF No. 37-1 (“Def.’s Mem.”); • Pl.’s Nov. 20, 2017 Letter, ECF No. 39; • Def.’s Reply in Support of Second Mot. to Dismiss, ECF No. 41 (“Def.’s Reply”). In an exercise of its discretion, the Court finds that holding oral argument in this action would not be of assistance in rendering a decision. See LCvR 7(f).
2 United States, 193 F.3d 545, 548 (D.C. Cir. 1999)); Fillmore v. AT & T Mobility Servs. LLC, 140
F. Supp. 3d 1, 2 (D.D.C. 2015) (“the Court, as it must in a case brought by a pro se plaintiff,
considers the facts as alleged in both the Complaint and Plaintiff’s Opposition to Defendant’s
Motion to Dismiss.”).
As the Court noted in its November 15, 2016 Memorandum Opinion, Plaintiff’s
allegations are not a model of clarity. Nonetheless, the Court can discern the following: Plaintiff
was hired by Defendant as a security officer in 2012. See Pl.’s Opp’n to Mot. to Dismiss, ECF
No. 15, at 4. Before being employed by Defendant, Plaintiff worked for a company called U.S.
Security Associates Inc. Id. While working for U.S. Security, Plaintiff complained to his
superiors, including a Major Jenkins, that assignments were not being made on the basis of
employees’ seniority. Id. at 4. Plaintiff also complained about his superiors’ refusal to allow
Plaintiff to see the company’s “seniority list,” which Plaintiff alleges must be given to a new
contractor within ten days when a contract changes hands. Id. at 4-5. Plaintiff alleges that his
superiors retaliated against him for making these complaints. Id.
After being hired by Defendant in 2012, Plaintiff was stationed at Johnson Middle School
in Washington D.C. Id. at 4. Plaintiff alleges that Major Jenkins was responsible for this
placement, and that she placed Plaintiff there in retaliation for Plaintiff’s previous complaints
while at U.S. Security. Id. at 5. Plaintiff alleges that this placement was wrongful because his
seniority demanded that he be given a better assignment. Id.
In 2013, Plaintiff was fired for allowing an unauthorized individual to enter the school.
Id. at 4. Plaintiff alleges that his termination was wrongful because the individual was a parent
of one of the students at the school and therefore authorized to enter. Id. Plaintiff alleges that
Defendant lied on a disciplinary form that states that Plaintiff allowed an unauthorized person on
3 to school premises. Id. at 4, 6. Plaintiff also takes issue with the fact that the disciplinary form
was unsigned. Id. at 6.
Plaintiff suggests that these actions violated a number of policies or documents.
Primarily, Plaintiff refers to a “disciplinary policy” or “progressive disciplinary policy” and a
“Dos and Don’ts” list prepared by a company hired by Defendant to handle employment issues.
Id. at 3, 6.
Plaintiff has indicated that he filed a grievance against AlliedBarton with his union, the
Service Employees International Union (“SEIU”), based on the above allegations, but that the
SEIU refused to arbitrate his claims because it determined that they lacked merit. See Pl.’s
Suppl. Brief, ECF No. 22, at 1. Plaintiff appealed this decision, but his appeal was denied. Id. at
2. Plaintiff apparently then filed a charge with the National Labor Relations Board (“NLRB”),
challenging the SEIU’s refusal to arbitrate against AlliedBarton. Plaintiff has attached to one of
his pleadings a letter from the NLRB denying Plaintiff’s appeal from a Regional Director’s
refusal to issue a complaint asserting that the SEIU failed to fairly represent him in the
processing of his grievance. Id. at 8.
B. Dismissal, Remand and Subsequent Pleadings
On June 30, 2016, Defendant moved to dismiss this case on the grounds that Plaintiff’s
claim, which was styled as one for breach of contract under District of Columbia law, was
completely preempted by Section 301 of the LMRA. See Def.’s Mot. to Dismiss, ECF No. 6.
On November 15, 2016, the Court issued a Memorandum Opinion and Order granting
Defendant’s motion and dismissing this case. See Nov. 15, 2016 Mem. Op. and Order, ECF
Nos. 23, 24. The Court found that Plaintiff’s state law claims were preempted by Section 301
because they were not meaningfully independent of the Collective Bargaining Agreement
4 (“CBA”) that was in place between the SEIU and AlliedBarton during Plaintiff’s employment.
See Berry v. Coastal Int’l Sec., Inc., 968 F. Supp. 2d 104, 110 (D.D.C. 2013) (“section 301
completely preempts any action predicated on state law if that action is either: (1) founded upon
rights created by a collective bargaining agreement; or (2) substantially dependent upon analysis
of that agreement.”).
On August 2, 2017, the D.C. Circuit affirmed-in-part this Court’s Order dismissing this
case, in that it held that the Court correctly concluded that Plaintiff’s state law claims were
preempted by the LMRA because they depended on the meaning of the CBA. See Washington v.
AlliedBarton Sec. Servs., LLC, No. 16-7147, 2017 WL 4180147 (D.C. Cir. Aug. 2, 2017).
Accordingly, the court held that “appellant’s claims must be brought, if at all, under Section
301.” Id. The D.C. Circuit ordered that this case be remanded to determine whether Plaintiff’s
pleadings could be viewed as stating a claim under that statute. Id. Because Plaintiff’s
Complaint asserted a state law cause of action for breach of contract, and Plaintiff had not
previously asserted a claim under Section 301, the Court gave Plaintiff the opportunity to file a
pleading setting forth whether, and if so how, he contended that the facts of his case stated a
claim under Section 301. See Sept. 18, 2017 Order, ECF No. 35.
Plaintiff subsequently filed a Notice with the Court which, liberally construed, alleges
that Defendant violated Section 301. See “The Order of the Court,” ECF No. 36. The pleading
does not contain any new material factual allegations beyond those in Plaintiff’s pre-remand
pleadings.
Defendant then moved to dismiss this case again, on the grounds that Plaintiff cannot
state a claim under Section 301 because any such claim would be untimely under the applicable
statute of limitations. That motion has been fully briefed and is now ripe for resolution.
5 II. LEGAL STANDARD
Under Rule 12(b)(6), a party may move to dismiss a complaint on the grounds that it
“fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). 2 “[A]
complaint [does not] suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual
enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 557 (2007)). Rather, a complaint must contain sufficient factual allegations that, if
accepted as true, “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570.
“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.” Iqbal, 556
U.S. at 678.
III. DISCUSSION
The key to resolving Defendant’s Second Motion to Dismiss is determining which statute
of limitations applies to Plaintiff’s Section 301 claim. In making this determination, the Court is
guided by the D.C. Circuit’s opinion in Cephas v. MVM, Inc., 520 F.3d 480 (D.C. Cir. 2008). In
Cephas, like in this case, plaintiff sued his former employer, claiming that he had been
terminated in violation of the employer’s CBA with the employee’s union. Id. at 482. In its
defense, the employer argued that plaintiff’s termination was “not reviewable” under the CBA
because plaintiff had been terminated at the written request of the government, and the CBA
expressly stated that its grievance procedure did not apply under such circumstances. Id. at 483,
2 Although at the outset of the Second Motion to Dismiss Defendant states that its motion is being brought pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), the Court understands from the remainder of that motion that it is actually a Rule 12(b)(6) motion to dismiss for failure to state a claim. See Def.’s Mem. at 1 (“Plaintiff’s complaint, considering all of his filings, fails to state a claim”); id. at 9 (“Defendant respectfully requests that this Court dismiss Plaintiff’s complaint in its entirety for failure to state a claim”).
6 489. The district court held that plaintiff’s state law claims were preempted by Section 301, and
that the applicable statute of limitations for any potential Section 301 claim was the six month
period provided for by § 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b)
(“NLRA”). Id. at 482. Because plaintiff had filed his suit after this six month period had
expired, the district court dismissed his case. Id.
The D.C. Circuit reversed. It agreed with the district court that plaintiff’s state law
claims were preempted by Section 301, but disagreed about the statute of limitations that should
apply if plaintiff were to proceed under that section. Id. at 483. The court explained that
“[a]lthough [plaintiff’s] only cause of action arises under a federal statute, that is, § 301, federal
law does not necessarily displace the statute of limitations that would apply under D.C. law.”
Id. at 484. “Section 301 does not specify a statute of limitations, and ‘the general rule [is] that
statutes of limitation’ for federal rights of action that do not specify a limitation period ‘are to be
borrowed from state law.’” Id. (quoting Reed v. United Transp. Union, 488 U.S. 319, 324
(1989)). The D.C. Circuit noted that that it “presumptively appl[ies] the limitation period that
would apply to the state law claim that is ‘most closely analogous’ to the federal claim in suit.”
Id. (quoting North Star Steel Co. v. Thomas, 515 U.S. 29, 34 (1995)). “The presumption
favoring state law is overcome only ‘when the state limitations period . . . would frustrate or
interfere with the implementation of national policies or be at odds with the purpose or operation
of federal substantive law.’” Id. (quoting North Star Steel, 515 U.S. at 34-35). “In that event,
the courts must borrow a limitation period from an analogous federal statute.” Id. at 485.
Applying this framework, the Cephas court determined that the statute of limitations
applicable to a Section 301 claim varies depending on the context. Id. at 488. The presumption
favoring the application of a state law limitations period (in this case, a three year period for
7 breach of contract claims), is overcome if the Section 301 claim presented by the plaintiff is a
“hybrid § 301/fair representation claim.” Id. at 485. In such a “hybrid” claim, the plaintiff is not
merely claiming that his employer breached a CBA, but is also complaining that the plaintiff’s
union breached its duty of fair representation by acting in a “discriminatory, dishonest, arbitrary
or perfunctory fashion.” Id. If a plaintiff’s claim is “hybrid” in this manner, the appropriate
limitations period is the six month period set forth in § 10(b) of the NLRA. Id.; see also
Robinson v. Washington Metro. Area Transit Auth., 167 F. Supp. 3d 118, 127 (D.D.C. 2016) (“a
hybrid breach-of-CBA/breach-of-duty of fair representation claim is subject to the shorter, six-
month statute of limitations applicable to claims arising under the LMRA”). If a plaintiff’s
claims only assert that his or her employer breached the CBA, and do not also contain a claim
about union misconduct, the state law statute of limitations for breach of contracts is
presumptively applicable. Cephas, 520 F.3d at 489-90. The D.C. Circuit concluded that the
particular claim raised in Cephas was not a hybrid one. In that particular case, plaintiff’s
grievance could not have been processed through the CBA’s grievance procedures due to a
carve-out from that procedure for terminations requested by the government. Because the union
could not have represented plaintiff by pressing his claim through the CBA’s grievance
procedure, the D.C. Circuit reasoned that plaintiff’s lawsuit logically could not be alleging that
the union breached its duty of fair representation. Id. at 489 (“Because Cephas’s claim could not
have been processed through the grievance procedure in the CBA, it follows his case does not
depend upon his union having breached its DFR”). The lawsuit must have been aimed only at
plaintiff’s employer.
Applying the logic of Cephas to this case, the Court concludes that—to the extent
Plaintiff could be said to have asserted a Section 301 claim at all—that claim would be a “hybrid
8 § 301/fair representation claim.” As an initial matter, unlike in Cephas, there is no indication in
this case that Plaintiff’s grievance would have been exempt from the grievance procedure
established in the CBA. 3 As the Court noted in its November 15, 2016 Memorandum Opinion,
the CBA appears to cover all of the rights and obligations apparently at issue in this lawsuit.
Washington v. AlliedBarton Sec. Servs., LLC, 217 F. Supp. 3d 208, 212 (D.D.C. 2016). And,
with exceptions not relevant here, the “Grievance/Arbitration” section of the CBA states that
“[a]ll disputes or differences involving the interpretation or application of this Agreement that
arise between the Union and the Employer shall be resolved as provided in this Article.” Id. §
24.1 (emphasis added). The procedure includes written submissions, meetings between the union
and the employer and, if necessary, binding arbitration. Id. § 24. It explicitly covers grievances
which, like Plaintiff’s, relate to an employee’s discharge. Id. § 24.1(A). The Court can see no
exception or carve-out from this procedure that would apply to Plaintiff’s grievance. In fact,
Plaintiff himself sought to vindicate the rights at issue in this lawsuit initially by using the
grievance procedure, and the SEIU only declined to arbitrate because it did not see merit in
Plaintiff’s grievance (not because the grievance procedure was inapplicable for any reason). See
Pl’s Supplemental Brief, ECF No. 22. In short, a grievance procedure existed in this case
through which Plaintiff’s union could have arbitrated Plaintiff’s claims against Defendant.
Accordingly, unlike the plaintiff in Cephas, Plaintiff in this case could be alleging that his union
3 Defendant provided the Court with the CBA between AlliedBarton and the SEIU that was in place during the time Plaintiff was employed by Defendant. See Decl. of Timothy Price, ECF No. 6-2, Ex. A. The Court considers the CBA even though Plaintiff did not attach it to his pleadings because it is discussed in, and important to, a number of those pleadings. “Incorporation by reference can . . . amplify pleadings where the document is not attached by the plaintiff, but is ‘referred to in the complaint and [ ] integral to [the plaintiff’s] claim.’” Banneker Ventures, LLC v. Graham, 798 F.3d 1119, 1133 (D.C. Cir. 2015) (quoting Kaempe v. Myers, 367 F.3d 958, 965 (D.C. Cir. 2004)).
9 did not fairly or adequately represent him. See Lever v. Entergy Nuclear Operations Inc., No.
15-CV-3327(KAM), 2016 WL 1627619, at *5 (E.D.N.Y. Apr. 22, 2016) (distinguishing Cephas
and determining that plaintiff’s claim was a hybrid one because “unlike in Cephas, the CBA in
question specifically provides for grievance and arbitration of the conduct that plaintiff
complains of here, the discharge of an employee. The presence of a grievance procedure and an
arbitration clause here implicates a duty of fair representation by the Union.”).
Having carefully reviewed the entire record in this case, the Court determines that such
allegations are in fact part of Plaintiff’s lawsuit. As discussed above, Plaintiff has filed a
pleading in which he indicates that he took steps to initiate the CBA’s grievance procedure with
his union, the SEIU, but that the SEIU declined to take his claim to arbitration against
AlliedBarton because they determined that it lacked merit. Plaintiff unsuccessfully appealed that
decision, and then filed an unsuccessful charge against the SEIU with the NLRB. See Cephas,
520 F.3d at 488 (discussing cases that “involved a claim as to which the union filed but later
abandoned a grievance” where plaintiff “challenged the result of the grievance procedure,” and
noting that these cases “likely presented or should have presented a hybrid claim for breaches of
both the CBA and the DFR.”).
In addition to this procedural history, Plaintiff has made affirmative allegations in this
case that he is not satisfied with the SEIU’s representation. He states that “[t]he purpose of a
union is to inform its members on what’s going on, represent them in grievances and in courts
and to settle disputes.” Pl.’s Suppl. Br., ECF No. 22, at 2. However, Plaintiff alleges, “I have
never received any information regarding what had been done for its members and I can only
recall one meeting between 2012 and 2013 and it was cancelled.” Id. The Court infers from
these allegations that part of Plaintiff’s Complaint in this case is that his union did not adequately
10 represent him. When given an opportunity to rebut Defendant’s assertion that Plaintiff’s
Complaint incorporates such allegations, Plaintiff failed to do so. See generally Pl.’s Nov. 20,
2017 Letter. In fact, in his latest pleading, instead of rebutting this interpretation of his
Complaint, Plaintiff reinforced the Court’s conclusion that his claim is a hybrid one by including
an underlined paragraph describing the different theories under which “[s]uits against union[s]
could be brought.” Id. at 2. Plaintiff has not named the SEIU as a Defendant in this case, but
that does not mean that his claim is not a hybrid one. As the D.C. Circuit has explained, “[t]he
employee may bring his action against the employer, the union, or both, ‘but the case he must
prove is the same.’” Cephas, 520 F.3d at 485 (quoting DelCostello v. Int’l Bhd. of Teamsters,
462 U.S. 151, 165 (1983)); see also Lever, 2016 WL 1627619, at *5 (“that plaintiff did not bring
suit against the Union does not make his claims pure § 301 claims.”). Considering the record as
a whole, the Court concludes that Plaintiff’s case is best described as a “hybrid § 301/fair
representation claim.” Accordingly, the statute of limitations in this case is borrowed from
Section 10(b) of the NLRA, and is six months.
Applying this limitations period, the Court concludes that Plaintiff’s Complaint is
untimely and must be dismissed. The six month statutory period for hybrid claims “‘begin[s] to
run from the later of (1) when the employee discovers, or in the reasonable exercise of diligence
should have discovered, the acts constituting the alleged [breach] by the employer, or (2) when
the employee knows or should have known of the last action taken by the union which
constituted the alleged breach of its duty of fair representation.’” See Mercer v. Inter-Con Sec.
Sys., Inc., 82 F. Supp. 3d 250, 254 (D.D.C. 2015) (quoting Montgomery v. Omnisec Int'l Sec.
Servs., Inc., 961 F. Supp. 2d 178, 184 (D.D.C. 2013)).
11 The allegedly wrongful act by Plaintiff’s employer in this case—his termination—
occurred in 2013. The very latest date in any way associated with Plaintiff’s unsuccessful efforts
to have the SEIU press his claims against his employer was June 6, 2014, when he received
notification from the NLRB that his appeal of that body’s decision not to issue a complaint
against his union had been denied. See Pl.’s Suppl. Brief at 8. Plaintiff did not file his
Complaint until June 2, 2016, see Compl., ECF No. 1-2, far more than 6 months later than these
dates. Accordingly that Complaint cannot state a timely Section 301 claim.
Before concluding, the Court briefly addresses several miscellaneous issues. First, to the
extent Plaintiff claims that the D.C. public school system violated any laws or committed any
torts, see Pl.’s “The Order of the Court” at 1 (“The tortious interference between AlliedBarton
and the plaintiff by DC public school was breach of the contract”), those assertions are misplaced
because the D.C. public school system is not a party to this lawsuit. Second, Plaintiff states in
one of his pleadings that “[t]his is an example of Tort law – Negligent Infliction of Emotional
Distress.” Id. To the extent Plaintiff intended to assert a negligent infliction of emotional
distress claim in this case, that effort fails. The tort of negligent infliction of emotional distress
applies to particular circumstances—e.g., where a plaintiff is put in danger of physical injury or
where there exists a special relationship between the plaintiff and defendant that implicates
plaintiff’s emotional well-being—that are simply not present in Plaintiff’s pleadings, no matter
how liberally construed. See Lesesne v. D.C., 146 F. Supp. 3d 190, 195 (D.D.C. 2015)
(discussing elements of a negligent infliction of emotional distress claim and the theories under
which such a claim may be brought). Finally, in his latest pleading Plaintiff has made reference
to the D.C. False Claims Act. See Pl.’s Nov. 20, 2017 Letter at 5. Plaintiff has not complied
12 with any of the requirements to bring a civil action as a qui tam plaintiff under this Act. See D.C.
Code § 2-381.03. For this reason at least, there is no False Claims Act claim in this case.
IV. CONCLUSION
In sum, the Court finds that Plaintiff cannot pursue a Section 301 claim because his
Complaint was filed outside of the applicable statute of limitations. The Court also finds that
Plaintiff has not adequately alleged any other causes of action in this case. Accordingly, the
Court GRANTS Defendant’s Second Motion to Dismiss and DISMISSES Plaintiff’s Complaint.
An appropriate Order accompanies this Memorandum Opinion.
Dated: February 5, 2018 /s/ COLLEEN KOLLAR-KOTELLY United States District Judge