The opinion of the court was delivered by: COLLEEN KOTELLY, District Judge
Plaintiff James W. Cephas brings suit against his current
employer, MVM, Inc. ("MVM" or "Defendant")*fn1 alleging a
violation of the collective bargaining agreement governing Mr.
Cephas's employment. Before the Court is MVM's motion to dismiss
for failure to state a claim upon which relief may be granted, or
in the alternative a motion for summary judgment. Upon
consideration of the motion, opposition, reply, and the
applicable law,*fn2 the Court shall grant MVM's Motion to
On December 1, 2004, Mr. Cephas filed a Complaint in Superior
Court of the District of Columbia against both MVM and Robert L.
Chaney. Defendant's Notice of Removal ("Notice") ¶ 1. Pursuant to
28 U.S.C. §§ 1441 and 1446, Defendant MVM filed a Notice of
Removal on January 10, 2005, to remove the case from the Superior
Court to this Court. As Mr. Chaney had not at the time of filing the Notice been served with the
Complaint, Defendant Chaney neither joined in the removal nor
objected to it. Notice ¶ 7. It should be noted that as of
September 30, 2005 Mr. Chaney has not been served with the
Complaint. Upon removal MVM, promptly moved for dismissal based
on Federal Rule of Civil Procedure 12(b)(6), or in the
alternative, for summary judgment.
Since this is a motion to dismiss based on the sufficiency of
the Complaint, the facts must be construed in the light most
favorable to Mr. Cephas. See EEOC v. St. Francis Xavier
Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997). Therefore,
the facts stated herein are those from the Complaint and which
the parties do not dispute.
Mr. Cephas has been an employee with MVM since November 9,
1998, working as a court security officer ("CSO"). Compl. ¶ 6.
Since being hired, Mr. Cephas has been a member of United
Government Security Officers of America Local 80 and has been
covered by both a Collective Bargaining Agreement ("CBA") and an
employment contract. Id. Mr. Cephas was assigned to work
full-time as a CSO at the United States Attorney's Office, 555
4th Street, NW, Washington, D.C. in December, 1999. Id. On
March 11, 2003, MVM transferred Mr. Cephas to the National Court
Building, 717 Madison Street, NW, Washington, D.C. in response to
a recommendation made by Mr. Chaney*fn3 that Mr. Cephas be
transferred out of the U.S. Attorney's Office. This
recommendation was based on an allegation that Mr. Cephas had
failed to respond to a radio call on February 25, 2003. Compl. ¶¶
When Mr. Cephas was transferred to the National Court Building,
he was given only a part-time position, as opposed to the
full-time position he had held at the U.S. Attorney's Office. Compl. ¶ 9. Mr. Cephas asked to be restored to full-time status
through the negotiated grievance procedures. The Union filed a
grievance on March 8, 2003, which was denied sometime prior to
March 28, 2003. On March 28, 2003 the Union notified MVM of its
intentions to demand arbitration. Defendant MVM, Inc.'s Statement
of Undisputed Material Fact ("Def. Facts") ¶¶ 12-14. MVM did not
reinstate Mr. Cephas to full-time status. Compl. ¶ 10; Def.
Facts. ¶ 13. Mr. Cephas applied for a full-time position with MVM
at the National Court Building and was hired in September, 2003.
Compl. ¶¶ 8, 10; Def. Facts ¶ 17.
Under Rule 12(b)(6), a motion to dismiss should be granted only
if the "plaintiff? can prove no set of facts in support of [its]
claim which would entitle [it] to relief." Kowal v. MCI Commc'n
Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994) (citing Shuler v.
United States, 617 F.2d 605, 608 (D.C. Cir. 1979)). When
considering a motion to dismiss, the Court must resolve all
factual doubts in favor of the plaintiff and allow the plaintiff
the benefit of all inferences. See EEOC v. St. Francis Xavier
Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997).
Notwithstanding this liberal construction, "the court need not
accept inferences drawn by plaintiffs if such inferences are
unsupported by the facts set out in the complaint. Nor must the
court accept legal conclusions cast in the form of factual
allegations." Kowal, 16 F.3d at 1276; see also Papasan v.
Allain, 478 U.S. 265, 286 (1986). Furthermore, in this case,
consideration of the CBA by this Court does not convert the
Motion to Dismiss to a Motion for Summary Judgment. This Court
finds compelling a legal standard used in this District that
"documents attached as exhibits or incorporated by reference" may
be used in determination of a 12(b)(6) motion to dismiss. Brown
v. United States, 271 F. Supp. 2d 225, 228 (D.D.C. 2003). In
Krooth & Altman v. North American Life Assurance Company, the
court determined it was able to consider materials outside the pleadings without converting the
motion to dismiss to a motion for summary judgment because the
materials were "referred to in the complaint, and are central to
the plaintiffs' claims." Krooth & Altman v. N. Amer. Life
Assurance Co., 134 F. Supp. 2d 96, 99 (2001). Since the CBA is
central to Mr. Cephas's Complaint, and because Mr. Cephas
references the CBA, the CBA has been incorporated by reference
into the Complaint.
The primary issue before this Court is whether this is a case
in which, as MVM argues, § 301 of the National Labor and
Management Act ("NLMA") preempts state law, or whether, as Mr.
Cephas argues, the claim against MVM is a breach of contract
claim to be decided under the laws of the District of Columbia.
Defendant's primary argument is that Count I of Mr. Cephas's
Complaint is a "hybrid § 301/duty of fair representation" claim.
Memorandum of Points and Authorities in Support of Defendant MVM,
Inc.'s Amended Motion to Dismiss, or in the alternative, for
Summary Judgment ("MVM Memo") at 4-5. Section 301 of the NLMA
Suits for violation of contracts between an employer
and a labor organization representing employees in an
industry affecting commerce . . . may be brought in
any district court of the United States having
jurisdiction of the parties, without respect to
amount in controversy or without regard to the
citizenship of the parties.
NLMA § 301(a), 29 U.S.C. § 185(a);*fn4
Defendant MVM, Inc.'s
Reply to Plaintiff's Opposition to its Motion to Dismiss, or in
the alternative, for Summary Judgment ("Reply") at 2. MVM argues
that § 301 applies here because Mr. Cephas is alleging that MVM
violated the CBA. Reply at 2; Compl. at 4, ¶ A. The case law
interpreting § 301 suits against employers makes it very clear that "the employee must at least attempt to exhaust exclusive
grievance and arbitration procedures established by the
bargaining agreement." Vaca v. Sipes, 386 U.S. 171
, 184 (1967)
(citing Republic Steel Corp. v. Maddox, 379 U.S. 650
(1965)). The exception is when "the union has the sole power
under the contract to invoke the higher stages of the grievance
procedure, and if, . . . the employee-plaintiff has been
prevented from exhausting his contractual remedies by the unions
wrongful refusal to process the grievance." Id. at 185.
Defendant argues that the § 5.4 of Article 5 of the CBA sets
forth the exclusive means by which grievances may be processed
when there is an alleged breach of the CBA. MVM Memo at
When there is both a breach of the CBA and a breach
of the duty of fair representation, as MVM here argues, "[t]he
employee may, if he chooses, sue one defendant and not the other;
but the case he must prove is the same whether he sues one, the
other, or both." DelCostello v. Int'l Bhd. of Teamsters,
462 U.S. 151
, 165 (1983). Namely, Plaintiff must demonstrate that the
employer violated the CBA and that the union breached its duty of
fair representation. Defendant therefore argues that because §
301 is governing in this case and because the CBA provides the
exclusive means for remedying the breach, then MVM's alleged
breach of the CBA must be accompanied by an allegation that the
union breached its duty to fairly represent Mr. Cephas,
regardless of whether the union is a party to the case. Without
this allegation, Defendant argues that Mr. Cephas failed to plead
an element of the claim, and Count I should be dismissed.
The alternative argument contained in Defendant's motion to
dismiss is that even if this Court does not dismiss for failure
to plead all elements of the claim, it should dismiss because the
claim is time-barred. Def. Motion at 1; Def. Memo at 6-8. The
basis for this argument stems from the Supreme Court's holding in DelCostello, that hybrid §
301/duty of fair representation claims are subject to the
six-month statute of limitations contained in § 10(b) of the
National Labor Relations Act ("NLRA") for making charges of
unfair labor practices to the National Labor Relations Board.
DelCostello, 462 U.S. at 169; see also NLRA § 10(b),
29 U.S.C. § 160(b) ("[N]o complaint shall issue based on any unfair
labor practice occurring more than six month prior to the filing
of the charge with the Board."). Mr. Cephas did not file the
Complaint in Superior Court until December 1, 2004. Compl. at 1
(date stamp). Therefore, under the six-month statute of
limitations Defendant urges this court to apply, the actions in
Mr. Cephas's complaint would have had to occur no earlier than
June 1, 2004. Since the actions complained of happened in March
2003, Defendant argues that Plaintiff is time-barred from
bringing suit against MVM.
Finally, in its Reply, Defendant argues that even if this Court
were to find that the claim brought by Mr. Cephas is a breach of
contract claim, as Mr. Cephas argues in his Opposition, the
six-month statute of limitations applicable to hybrid claims
would be applicable here. Reply at 3. While not fully argued, it
appears that Defendant's argument is predicated on the assumption
that § 301 would preempt D.C. law. This preemption argument can
be inferred from the cases cited in Defendant's Reply: Foy v.
Giant Food Incorporated, 298 F.3d 284 (4th Cir. 2002) and
Woosley v. Avco Corporation, 944 F.2d 313 (6th Cir. 1991).
Reply at 3-4. It is notable that in Foy the court found that §
301 preempted the state claim plaintiff alleged, Foy,
944 F.3d at 287, 289, and in Woosley, the claim was brought pursuant to
§ 301. Woosley, 944 F.2d at 314. Section 301 preempts state law
"to ensure uniform interpretation of collective-bargaining
agreement, and this to promote the peaceable, consistent
resolution of labor-management disputes." Lingle v. Norge Div.
of Magic Chef, 486 U.S. 399, 404 (1988). However, state law is only preempted when "resolution of a state-law claim depends upon
the meaning of a collective-bargaining agreement" because
"application of state law . . . might lead to ...