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JESSE R. CHESTER, Plaintiff,

The opinion of the court was delivered by: EMMET SULLIVAN, District Judge


I. Introduction

Plaintiff Jesse R. Chester ("Chester" or "plaintiff") brings suit against defendant Washington Metropolitan Area Transit Authority ("WMATA" or "defendant"), alleging retaliation and wrongful termination in violation of common law (Count I) and the collective bargaining agreement ("CBA") between plaintiff's union, Office and Professional Employees International Union, Local 2 ("Local 2") and WMATA (Counts II and III). In addition, plaintiff alleges defendant violated the CBA (1) by not hiring plaintiff for a new position following his discharge (Count IV), (2) by hiring two white persons for positions that plaintiff (an African-American) could have applied (Count V), and (3) by refusing to promote plaintiff to a retiring supervisor's position for which plaintiff contends he was the most qualified candidate (Count VI). Defendant has moved to dismiss the complaint in its entirety or, in the alternative, for summary judgment.

  II. Background

  Because defendant's Motion for Summary Judgment asserts absolute defenses, the Court's decision will be based on questions of law and very few facts are necessary to the decision.*fn1

  Plaintiff is an African-American man who, prior to the events giving rise to this suit, had been employed by defendant since 1982. Plaintiff is a member of the Office and Professional Employees Union International, Local 2. Compl. at ¶ 14. An agreement between the union and defendant governed the conditions of plaintiff's employment with defendant. Id. Defendant is a governmental organization created by a multi-state compact between the District of Columbia, Virginia, and Maryland Pl.'s Resp. to Def.'s Mot. at 1.

  On June 27, 2000, an altercation occurred between plaintiff and Denton U. Kent, the Director of the Office of Property Development and Management ("LAND"). As a result of that altercation and pursuant to the CBA, plaintiff filed a Step 2 grievance on June 28, 2000. The grievance was denied on July 20, 2000. Plaintiff then filed a Step 3 grievance on July 31, 2002 (and again on October 2, 2000), which was denied on October 2. Plaintiff did not pursue Step 4 arbitration. Compl. at ¶¶ 14-30.

  On May 1, 2002, plaintiff learned that, as a result of post-9/11 budget cuts, a Reduction-In-Force ("RIF") had been ordered. Plaintiff's position and that of one co-worker were to be eliminated and replaced by one new position. Plaintiff believes his position was eliminated in response to the grievance he filed in June 2000. See Compl. at ¶¶ 39, 41-44; Pl.'s Resp. to Def.'s Mot. at 8; Def.'s Mot. Ex. 4.

  On May 24, 2002, Local 2 filed a Step 2 grievance on behalf of plaintiff to protest the elimination of his position. The Step 2 grievance was denied on June 7, 2002. Local 2 then filed a Step 3 grievance on June 11, 2002. On June 28, 2002, the Step 3 grievance was resolved by a mutually agreeable settlement, whereby plaintiff was allowed to remain in his position until the new position created by the RIF was filled. Compl. at ¶¶ 55-58.

  On May 9, 2002, plaintiff received a list of "Current Vacancies" from defendant in order to seek alternate employment. On June 6, 2002, plaintiff applied for a position that was lower in rank, but received no response. On July 7, 2002, plaintiff learned the position had been vacant for two years and had been placed on "hold" two months prior (around the time of the RIF) by Director Kent. Id. at ¶¶ 48-54.

  On June 28, 2002, plaintiff interviewed for the position left vacant by his retiring supervisor, but was not selected. Id. at ¶ 45. On July 29, 2002, LAND hired two new employees, both of whom are white. Id. at ¶ 59. On November 18, 2002, the new position created after the RIF was offered to an African-American employee with 11 years less seniority than plaintiff. Although plaintiff's statement of facts is unclear, it appears that plaintiff filed a Step 2 grievance regarding plaintiff's non-selection for the new position. The Court assumes that the Step 2 grievance was denied because plaintiff states that a Step 3 grievance was denied on December 13, 2002.*fn2 That same day, Local 2 filed a Step 4 appeal of the Step 3 denial, requesting final and binding arbitration. Compl. at ¶¶ 68, 70-71.

  Plaintiff's Step 4 grievance over his non-selection for the new position never reached arbitration because Local 2 determined, based on its prior experience, that pursuing arbitration of plaintiff's grievance would be futile. Compl. at ¶ 72; see Pl.'s Resp. Ex. 1 (letter from Local 2 dated May 30, 2003, explaining why arbitration was not pursued). Plaintiff has not alleged facts indicating he challenged Local 2's decision or believed it to be in error. In addition, plaintiff has provided no facts indicating he filed any grievances under the CBA regarding defendant's hiring of two white people or its refusal to promote plaintiff to his retiring supervisor's position.

  III. Standard of Review

  Because it is necessary to consider evidence presented or facts alleged extrinsic to the original complaint, "the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56." Fed.R. Civ. P. 12(b)-(c). Under Rule 56, summary judgment is appropriate only when the record before the court shows that "there is no genuine issue as to any material fact," Fed.R. Civ. P. 56(c), and the moving party has demonstrated that the non-moving party did not "make a showing sufficient to establish the existence of an element essential to that party's case," Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The non-moving party's evidence must be accepted as true and all reasonable inferences drawn in the non-moving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Greene v. Amritsar Auto Servs. Co., 206 F. Supp. 2d 4, 7 (D.D.C. 2002). However, "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position," Anderson, 477 U.S. ...

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