United States District Court for the District of Columbia
JESSE R. CHESTER, Plaintiff,
WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY Defendant.
The opinion of the court was delivered by: EMMET SULLIVAN, District Judge
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.
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
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
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. at 252, is insufficient to withstand a motion, and "the
non-moving party may not rely solely on mere conclusory
allegations," Sokos v. Hilton Hotels Corp., 282 F. Supp. 2d 42,
46 (D.D.C. 2003) (citing Green v. Dalton, 164 F.3d 671, 675
(D.C. Cir. 1999)).
A. The WMATA Compact Provides Defendant With Immunity From
Plaintiff's Wrongful Termination Tort Claim.
"In signing the WMATA Compact, Maryland, Virginia, and the
District of Columbia conferred upon WMATA their respective
sovereign immunities." Beebe v. WMATA, 129 F.3d 1283, 1287
(D.C. Cir. 1997) (citing Morris v. WMATA, 781 F.2d 218, 219
(D.C. Cir. 1986)). However, this immunity is not absolute. In
section 80 of the Compact, WMATA expressly waives its immunity
from suits for contracts and for torts "committed in the conduct
of any proprietary function," while retaining immunity "for any
torts occurring in the performance of a governmental function."
D.C. Code Ann. § 9-1107.01(80) (2001). In order to distinguish
proprietary functions from governmental functions, the court
first inquires whether the challenged activity "amounts to a
`quintessential' governmental function, like law enforcement. If
so, the activity falls within the scope of WMATA's sovereign
immunity." Beebe, 129 F.3d at 1287 (citing Burkhart v. WMATA, 112 F.3d 1207, 1216 (D.C. Cir. 1997) (internal citations
In the case of activities which are not quintessential
governmental functions, such as the personnel decisions at issue
here, "the immunity question turns on whether the activity is
`discretionary' or `ministerial.'" Id. Only discretionary acts
fall within section 80's retention of sovereign immunity for
governmental acts. Beebe, 129 F.3d at 1287. The D.C. Circuit
has held that "decisions concerning the hiring, training, and
supervision of WMATA employees are discretionary in nature, and
thus immune from judicial review." Burkhart, 112 F.3d at 1217.
The Circuit affirmed this reasoning in Beebe, noting that the
WMATA Compact "confers broad powers on WMATA to `[c]reate and
abolish offices, employments and positions,'" 129 F.3d at 1287
(quoting D.C. Code Ann. § 9-1107.01(12)(g)), and concluding that,
with regard to personnel decisions, WMATA is immune from any tort
claims. Beebe, 129 F.3d at 1288.
Plaintiff attempts to distinguish the clear precedent of
Beebe and Burkhart, claiming that their holdings should be
restricted to negligent tort claims. According to plaintiff,
because his retaliation claim alleges an intentional tort, it is
distinguishable from the past cases establishing WMATA's immunity
from tort claims resulting from employment decisions. Plaintiff
provides no precedent for drawing a distinction between intentional and negligent torts claims and fails to acknowledge
that the D.C. Circuit explicitly held in Beebe that WMATA was
immune from all tort suits stemming from personnel decisions,
"including the alleged intentional torts." Id.; see also Smith
v. WMATA, 1997 WL 182286, 4 (D.D.C. April 4, 1997) ("[T]he court
is not aware of a single case in which WMATA has been held liable
for torts arising from the administration of its personnel
Thus, defendant is entitled to summary judgment on Count I
because WMATA is immune from any tort suits arising out of its
discretionary personnel decisions made "in the performance of a
governmental function." D.C. Code Ann. § 9-1107.01(80).
B. The Doctrine Of Res Judicata Prevents Suit On Plaintiff's
Wrongful Termination Claims Because These Claims Have Already
Been Resolved By Settlement Between The Parties.
With respect to all of plaintiff's wrongful termination claims
(Counts I, II, and III), the doctrine of res judicata bars
plaintiffs claims because the allegations were already raised and
settled within the binding CBA grievance process and cannot be
pressed again. See Sanders v. WMATA, 819 F.2d 1151, 1156 (D.C.
Cir. 1987). Plaintiff's Step 3 grievance of the termination of
his position was settled on June 28, 2002, prior to arbitration,
by a mutually agreeable accord between Local 2 and defendant,
whereby plaintiff was allowed to remain in his eliminated position until the new position was filled. Plaintiff does not
allege he objected to this settlement. As the D.C. Circuit
declared in Sanders, settlement agreements "further support
preclusion" of additional claims by parties to the settlement.
819 F.2d at 1157-58. Under this rationale, plaintiff is barred
from bringing his previously settled claim again. See id. If
plaintiff objected to the settlement, he could have refused it
and taken his grievance to arbitration.*fn3 However,
plaintiff does not even attempt to refute the defendant's
assertion of res judicata preclusion for the wrongful termination
claims and such silence must be viewed as a concession. See FDIC
v. Bender, 127 F.3d 58, 67-68 (D.C. Cir. 1997).
Thus, having already been settled by the CBA grievance process,
the doctrine of res judicata prevents Counts I, II and III of
plaintiff's complaint from being litigated again and summary
judgment on these counts shall be granted for defendant.
C. Plaintiff's Failure To Exhaust The Grievance Procedures Of
The CBA And The Doctrine of Collateral Estoppel Require That
Summary Judgment On Counts IV-VI Be Granted For Defendant.
Section 66(c) of the WMATA Compact requires employees to submit
all unresolved "labor disputes" to arbitration. D.C. Code Ann. 9-1107.01(66)(c); see Beebe, 129 F.3d at 1286-87.
Plaintiffs allegations in Counts IV-VI (wrongful refusal to place
plaintiff in an available position or to train him for a new
position; discrimination; and wrongful refusal to promote
plaintiff to retiring supervisor's position) were never submitted
to arbitration and are therefore not properly before the Court.
Plaintiff acknowledges that prior to filing suit, unionized
employees must first exhaust the grievance procedures provided in
the CBA. Pl.'s Resp. at 9; see, e.g., Beebe,
129 F.3d at 1286-87; Sanders, 819 F.2d at 1158. Here, defendant alleges
that, with respect to Count IV, plaintiff has not yet exhausted
all the remedies under the CBA because the claim has not been
submitted to arbitration. With respect to Counts V and VI,
defendant contends that these claims have not been grieved under
the CBA at all and are therefore precluded from being brought in
this Court because arbitration is required under the Compact and
the CBA and because the doctrine of collateral estoppel precludes
bringing claims that could have and should have been brought
All parties agree that the allegations contained in Counts IV,
V, and VI have not been submitted to arbitration. A Step 4
grievance was filed with respect to Count IV, and arbitration was
requested, but the claim has never actually been submitted to
arbitration. The undisputed facts indicate that Local 2 decided
not to pursue plaintiff's claim through arbitration after determining it would be futile to do so. See Pl.'s Resp. Ex. 1.
Defendant contends that this failure to submit the grievance to
arbitration prevents the filing of a suit, while plaintiff
asserts that because Local 2 will not pursue arbitration, he has
exhausted all remedies under the CBA and should be permitted to
bring suit. Plaintiff's argument is unpersuasive. Plaintiff has
not suggested that Local 2's decision not to pursue arbitration
is flawed or unreasonable and nothing in the record suggests that
plaintiff ever requested Local 2 to reconsider its decision.
Furthermore, Article XX section 4 of the CBA states: "the
Authority and the Union recognize the right of the employee(s) to
settle his or her grievance directly." See Pl.'s Resp. Ex. 2.
Plaintiff does not claim to have attempted to settle his
grievance directly with WMATA, by requesting arbitration.
Furthermore, nothing in the record suggests that plaintiff was
precluded from seeking relief directly from defendant, or that it
would have been futile to do so. See Martin v. WMATA,
99 F.3d 448 (Table) (D.C. Cir. 1996). Section 66(c) of the WMATA Compact
requires defendant to submit to arbitration for unresolved labor
disputes and nothing indicates defendant would not have done so
had plaintiff requested. In short, plaintiff has alleged no set
of facts to demonstrate why arbitration of the "non-selection"
grievance (Count IV) was not pursued directly with WMATA and/or
by appeal to Local 2 for reconsideration of its decision not to
pursue arbitration. Accordingly, the Court cannot consider this claim
because plaintiff did not exhaust his remedies under, and as
required by, the CBA. Cf. UDC Chairs Chapter, Am. Ass'n of Univ.
Professors v. Bd. of Trustees, 56 F.3d 1469, 1475-76 (D.C. Cir.
1995) (public employees barred from bringing suit against
university when employees failed to seek relief directly from
university or to show that such a request would be futile).
The law of this Circuit is clear, summary judgment is
appropriate for "claims that should have been submitted to
arbitration, even if they were not actually heard." Sanders,
819 F.2d at 1157 (quoting Schattner v. Girard, Inc.,
668 F.2d 1366, 1368 (D.C. Cir. 1981) (emphasis in original)). Under this
rule, absent a final arbitration decision, the Step 3 denial of
plaintiff's grievance of his non-selection is binding. Vaca v.
Sipes, 386 U.S. 171, 191 (1961). As such, judicial review is not
available because plaintiff has provided neither evidence nor
allegation that the decision was unfair or flawed or represented
"some egregious deviation from the norm." Sanders,
819 F.2d at 1157.
In addition, plaintiff has not alleged that he ever attempted
to grieve either the discrimination claim (Count V) or the
nonpromotion claim (Count VI). As such, under settled law,
plaintiff "may not seek redress in court on claims that could and
should have been grieved." Id. at 1157 (citing Republic Steel
Corp. v. Maddox, 279 U.S. 650, 653 (1965)). This rule amounts to a form of
collateral estoppel, or issue preclusion, prohibiting non-grieved
complaints from being brought when, as here, the plaintiff had
the opportunity and the obligation to do so.
Thus, plaintiff is barred from pursuing Counts IV, V, VI in
this Court because the grievance remedies afforded under the CBA
have not been exhausted for each claim and the doctrine of
collateral estoppel prevents non-grieved complaints under the CBA
from being brought before the Court.
D. Summary Judgment Shall Be Granted For Defendant For
Plaintiff's Breach Of CBA Claims Because Plaintiff Has Not
Alleged Local 2 Breached Its Duty of Fair Representation, As
Required By The Law Governing CBA Dispute Adjudication, § 301 Of
The Labor Management Relations Act, 29 U.S.C. § 185.
Counts II through VI of plaintiff's complaint allege defendant
breached the CBA.*fn4 It is well settled that an "individual
employee may bring suit against his employer for breach of a
collective bargaining agreement." DelCostello v. Int'l
Brotherhood of Teamsters, 462 U.S. 151, 163 (1983). Such a suit,
because it requires interpretation of the CBA, is governed by §
301 of the Labor Management Relations Act ("LMRA"),
29 U.S.C. § 185. See DelCostello, 462 U.S. at 163 ("The suit against the employer
rests on § 301, since the employee is alleging breach of the
collective bargaining agreement."); Sokos,
283 F. Supp. 2d at 46 (holding that only if the
claim can be resolved without interpreting the CBA can the plaintiff
avoid § 301 preemption). Here, plaintiff alleges numerous
violations of the CBA that will necessarily require its
interpretation to resolve. As such, the alleged breach of the CBA
claims is governed by § 301 of the LMRA.
Under the LMRA, an employee is required to exhaust any
grievance procedures provided by the CBA before coming to court
and will be bound by the result of such procedures, subject to
very limited judicial review. See DelCostello,
462 U.S. at 163-64. However, the Supreme Court has enumerated two instances
when an individual employee will be allowed to obtain judicial
review of a breach of CBA claim without first exhausting the CBA
grievance process. See, e.g., DelCostello, 462 U.S. at 163-164;
Vaca, 386 U.S. at 184-87. In order to obtain judicial review
without first exhausting the remedies under the CBA, plaintiff
must allege either that his employer's actions effectively
repudiated the grievance procedures of the CBA or that his union
wrongfully refused to pursue his grievance. See Vaca,
386 U.S. at 185. In the present case, plaintiff has not alleged, and
nothing in the record suggests, that defendant repudiated the
CBA's grievance procedures. Plaintiff's wrongful termination
grievance was resolved by settlement prior to arbitration and plaintiff's non-selection
grievance was not submitted to arbitration in the discretion of
Local 2. Nothing suggests that defendant was not willing and/or
ready to submit to arbitration if Local 2 or plaintiff requested.
Therefore, plaintiff's only means of obtaining judicial review,
without first submitting his grievance to arbitration, is to
allege that Local 2 breached its duty of fair representation by
settling the wrongful termination prior to arbitration and/or
choosing not to pursue arbitration for the non-selection claim.
In effect, plaintiff's claim must consist of two causes of
action: (1) a § 301 breach of the CBA claim against defendant;
and (2) a breach of the duty of fair representation against Local
2. As noted in DelCostello, "the two claims are inextricably
interdependent," 462 U.S. at 164-65, but, contrary to defendant's
contention, the plaintiff is not required to bring both causes of
action simultaneously. However, "the case [plaintiff] must prove
is the same whether he sues one, the other, or both." Id. at
165. Plaintiff must establish that defendant's actions
constituted a breach of the CBA and that Local 2's actions in
not exhausting the grievance procedures available to plaintiff
under the CBA constituted a breach of its duty of fair
representation. In the present case, accepting as true all of
plaintiff's allegations that defendant breached the CBA,
plaintiff's claims must still fail because plaintiff has not
alleged, and nothing in the record indicates, that Local 2 breached its duty of fair representation.
Thus, summary judgment in favor of defendant on Counts II through
VI is appropriate
Upon consideration of the Motion to Dismiss or, in the
alternative, for Summary Judgment, the Response and Reply there
to, the applicable statutory and case law and for the all reasons
stated herein, defendant's Motion for Summary Judgement shall be
GRANTED in its entirety.
An appropriate Order and Judgement accompanies this Memorandum