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September 30, 2005.

JAMES W. CEPHAS, Plaintiff,
MVM, INC., Defendant.

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 Dismiss.


  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. ¶¶ 7, 8.

  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 states:
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, 652 (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 4.*fn5 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 ...

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