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
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. ...