AMY HERMAN JACKSON United States District Judge.
Plaintiff Theodore Berry brought this action against his employer, Coastal International Security, Inc., in the Superior Court of the District of Columbia, alleging age discrimination and retaliation in violation of the District of Columbia Human Rights Act (“DCHRA”), D.C. Stat. § 14-201.11. After removing the case to this Court, defendant moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6) and Local Civil Rule 7(a) on the grounds that plaintiff’s claims are preempted by section 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185.
After a review of the pleadings, the Court concludes that plaintiff’s age discrimination claim is preempted by section 301 because it is founded upon rights created by the CBA. But the Court finds that plaintiff’s retaliation claim is not preempted by section 301 because it is independent of the CBA. Therefore, the Court will grant defendant’s motion with respect to the age discrimination claim and deny the motion with respect to the retaliation claim.
The following facts are taken from the complaint and are undisputed for the purposes of this motion. See Mem. in Supp. of Def.’s Mot. to Dismiss (“Def.’s Mem.”) [Dkt. # 2-1] at 2 n.1. Plaintiff Theodore Berry is employed by defendant Coastal International Security, Inc. (“Coastal”) as a security officer at the Ronald Regan Building and International Trade Center (“RRB”) in Washington, D.C. Compl., Ex. A to Notice of Removal [Dkt. # 1-2] ¶ 13. Plaintiff’s employment with defendant is governed by a collective bargaining agreement (“CBA”) between defendant and his union. See Compl. ¶¶ 31, 60; see also Agreement Between Coastal International Security, Inc. and the International Union, Security, Police and Fire Professionals of America (SPFPA) and its Amalgamated Local 288, Ex. 1 to Def.’s Mot. to Dismiss (“CBA”) [Dkt. # 2-2]. According to the complaint, plaintiff – who began working at the Reagan building before defendant received its contract to provide security services – has seniority over all of the employees at RRB. Compl. ¶ 15.
During the time period involved in the complaint, plaintiff was supervised by Gregory Steele (his direct supervisor), Nkrumah Williams (the RRB contract manager), Lieutenant Colonel Summers (a supervisor), and Frank Duran (the regional manager). Compl. ¶¶ 17, 20, 23, 37. Steele, Williams, and Summers are all in their forties. Compl. ¶¶ 18–24. Plaintiff was sixty years old at the time of the events he describes. Compl. ¶ 11.
Plaintiff alleges that in October of 2010, Summers threatened to terminate him. Compl. ¶ 23. Plaintiff then filed a complaint against Summers, but he was not informed of what action, if any, defendant took against Summers based on that complaint. Compl. ¶¶ 26–27.
In December of 2010, plaintiff applied for a shift supervisor position. Compl. ¶ 29. The complaint notes that the CBA requires defendant to promote employees based on “rank and seniority.” Compl. ¶ 31; see also CBA § 16.3. Plaintiff asserts that although he “was more qualified for [the shift supervisor] position than any other applicant because he had rank and seniority advantages over each person who applied for the position, ” he was not selected. Compl. ¶¶ 30, 32. According to plaintiff, three younger and less qualified men were chosen for the position. Compl. ¶ 33. Plaintiff told his supervisors – Steele, Williams, and Duran – that he believed that his non-selection was a result of age discrimination. Compl. ¶ 37. Steele allegedly exacerbated plaintiff’s concerns about age discrimination by referring to him as a “grandpa type.” Compl. ¶ 38.
Ultimately, on April 18, 2011, plaintiff was promoted to shift supervisor under a 90-day probationary period. Compl. ¶ 42. About a week after the 90-day probation period would have ended, Steele told plaintiff that his probationary period would be ongoing for 120 days. Compl. ¶ 44. Plaintiff complains that this 120-day probationary period “was not agreed upon nor the norm.” Id. Steele believed that plaintiff’s probationary period would end on August 26, 2011, but according to plaintiff, his probationary period ended on August 18, 2011. Compl. ¶¶ 45–46.
On August 23, 2011 – during the period when Steele was of the understanding that plaintiff was still on probation – Steele issued four disciplinary Personnel Action Reports (“PARs”) against plaintiff. Compl. ¶ 47. Steele then recommended that plaintiff be dismissed based on the PARs. Compl. ¶ 59. Plaintiff asserts that Steele and Williams issued the PARs to prevent him from retaining his position as shift supervisor. Compl. ¶¶ 48, 58. He also alleges that the recommended dismissal was contrary to the CBA’s “protocol for disciplinary progression, ” which includes a verbal warning, a written warning, a suspension, and then dismissal. Compl. ¶ 60. Further, plaintiff contends that although the CBA requires defendant to investigate a PAR, defendant failed to investigate plaintiff’s four PARs. Compl. ¶¶ 62–63; see also CBA § 7.1. Plaintiff appealed Steele’s recommended dismissal on the grounds that it was based on unlawful age discrimination. Compl. ¶ 64. Plaintiff was allowed to remain in his position as a shift supervisor, and he attributes that turn of events to his appeal. Compl. ¶ 65.
On September 12, 2011, Steele gave plaintiff a three-day suspension notice based on his PARs. Compl. ¶ 66. Plaintiff scheduled a meeting with Williams, the RRB contract manager, to appeal the suspension notice, but the meeting was canceled and never rescheduled. Compl. ¶ 69. He also alleges that no one was interviewed in relation to his suspension, and he never received an “objective hearing” regarding his appeal. Compl. ¶ 70. Plaintiff served his three-day suspension. Compl. ¶ 67.
On June 29, 2012, plaintiff was suspended indefinitely without pay for responding to a distress alarm instead of allowing another staff member to take a bathroom break. Compl. ¶ 74. Plaintiff contends that he was required by protocol to investigate the distress call, and that the staff member was not harmed by his decision. Compl. ¶¶ 75–76. According to plaintiff, the suspension was in retaliation for his prior opposition to his supervisors’ attempt to dismiss him in 2011. Compl. ¶ 77.
On July 13, 2012, plaintiff brought this action against Coastal in the Superior Court of the District of Columbia. Compl. at 1. He asserted that defendant’s employees discriminated against him on the basis of his age and retaliated against him for resisting their attempts to terminate his employment in violation of the District of Columbia Human Rights Act (“DCHRA”), D.C. Stat. § 14-201.11. Compl. ¶¶ 78–92. Defendant removed this action to this Court pursuant to 28 U.S.C. §§ 1331, 1441(b), and 1446 on the grounds that plaintiff’s claims are preempted by section 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185. Notice of Removal [Dkt. # 1] ¶¶ 7, 11.
Defendant then moved to dismiss plaintiff’s complaint with prejudice under Federal Rule of Civil Procedure 12(b)(6) and Local Civil Rule 7(a). Def.’s Mot. to Dismiss [Dkt. # 2] at 1; Def.’s Mem. at 1. Defendant contends that plaintiff’s age discrimination and retaliation claims “undoubtedly require interpretation of the CBA” and, therefore, are preempted by section 301 of the LMRA. Def.’s Mem. at 6. According to defendant, since plaintiff’s claims are preempted by federal law, they fail to state a claim under the DCHRA and must be dismissed under Rule 12(b)(6). Def.’s Mem. at 7–8. Plaintiff opposes the motion and argues that his ...