United States District Court, District of Columbia
TONY D. PARKS, Plaintiff,
GIANT OF MARYLAND, LLC, Defendant.
N. MCFADDEN UNITED STATES DISTRICT JUDGE.
Parks was formerly employed at various grocery stores owned
by Giant of Maryland, LLC. On April 3, 2017, he brought a
pro se suit against Giant in DC. Superior Court,
alleging that after being promoted he "was not given the
proper raise, " and after he filed a "retaliation
suit" he was "threatened] by a manager[, ]
transferred and written up then terminated." Notice of
Removal, Ex. A at 7 (hereinafter Complaint). Giant removed to
this Court and then moved to dismiss, arguing that Mr.
Parks' claims were completely preempted by federal labor
laws. Mem. In Support of Mot. Dismiss 5-9 (Mot. Dismiss). For
the reasons that follow, I conclude that Mr. Parks' pay
claims survive the motion to dismiss, but that his other
claims must be dismissed.
Parks' hand-written complaint consists of only a single
paragraph, alleging that his problems began when he was
working as "a shop steward ... for Giant" and he
observed a manager "stealing hours." Compl. 7. When
Mr. Parks informed human resources, the manager tried to fire
him, but "the NLB (national labor board) [sic] stepped
in and they transferred [him]. [He] was commended and
promoted for [his] good work but was not given the proper
raise." Id. Mr. Parks "complained to
H.R." but "they denied [his] promotional
raise." Id. Mr. Parks then "complain[ed]
and filed [a] retaliation suit, " after which he
"was threatened by a manager[, ] transferred and written
up[, ] then terminated." Id.
response to Giant's motion to dismiss, Mr. Parks
submitted a filing that summarized his original allegations
in more detail and added other factual claims, including that
Giant "started putting [his] life in danger and not
letting [him] practice [his] religion, " Response to
Mot. Dismiss 1-2 (hereinafter Opp.). He also discussed the
union's involvement, saying that the "case
manager" filing his "multiple NLB [sic]
charges" "had a heavy work load and couldn't
get to it at first [and] also we had to keep adjusting
it" and that he "went to the Union on all
occasions] and unfortunately they were unable to help me[.]
[T]his is the reason why I had to seek outside help[.]"
Opp. 3. In a further filing, Mr. Parks again summarized all
of his prior allegations and claimed that "[a]s for the
Union they are in bed with the company and have always been
no help [I]t's the reason I have to depend on outside
help." Am. Response 3.
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to 'state a
claim to relief that is plausible on its face.'"
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). "A claim crosses from conceivable to plausible
when it contains factual allegations that, if proved, would
'allow the court to draw the reasonable inference that
the defendant is liable for the misconduct
alleged."' Bcmneker Ventures, LLC v.
Graham, 798 F.3d 1119, 1129 (D.C. Cir. 2015) (alteration
omitted) (quoting Iqbal, 556 U.S. at 678). In this
inquiry, a court must "draw all reasonable inferences
from those allegations in the plaintiff s favor."
The Claims At Issue
outset, I must consider which allegations are to be
considered: those in the initial complaint alone, or those
claims as supplemented by the Plaintiffs subsequent filings.
I conclude that the latter course is clearly appropriate
here, in light of Mr. Parks' pro se status and the
applicable case law.
"[i]n determining whether a complaint fails to state a
claim, we may consider only the facts alleged in the
complaint, any documents either attached to or incorporated
in the complaint and matters of which we may take judicial
notice." E.E.O.C. v. St. Francis Xavier Parochial
Sch., 117 F.3d 621, 624 (D.C. Cir. 1997). However,
"[a] document filed pro se is 'to be liberally
construed, ' and 'a pro se complaint, however
inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers.'"
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting
Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Courts
may "consider supplemental material filed by a pro se
litigant in order to clarify the precise claims being
urged." Greenhill v. Spellings, 482 F.3d 569,
572 (D.C. Cir. 2007). In at least two circumstances, the D.C.
Circuit has held that a district court abused its discretion
"in failing to consider a pro se litigant's
complaint 'in light of all filings, including filings
responsive to a motion to dismiss." Brown v. Whole
Foods Mkt. Grp., Inc., 789 F.3d 146, 152 (D.C. Cir.
2015) (quoting Richardson v. United States, 193 F.3d
545, 548 (D.C. Cir. 1999)). Both Brown and
Richardson found it significant that allowing the
plaintiff to effectively amend his complaint would cause the
defendant no prejudice, id.; Richardson, 193 F.3d at
549, and Giant here makes no claim of prejudice. See Response
[Dkt # 12] 1-7. Accordingly, I will consider the
complaint's allegations that Mr. Parks was
inappropriately denied a raise and subjected to retaliation
for filing suit, as well as the additional allegations raised
in his subsequent filings.
Plaintiff's Pay Claims Survive
first claims at issue are Mr. Park's claims that he was
"denied [his] promotional raise, " Compl. 7, a loss
that originally caused him to lose "seventy five (750)
a[n] hour" and "[n]ow" causes him to
"lose a dollar . . . a[n] hour." Opp. 2. Giant
contends that this type of claim "necessarily relies on
an interpretation of the wage provisions in the collective
bargaining agreement [CBA] between Giant and the United Food
& Commercial Workers, Local 400 that governed the terms
of Plaintiff s employment." Mot. Dismiss 1. If the terms
of Mr. Parks' employment are indeed determined by this
CBA, then "that claim must either be treated as a [Labor
Management Relations Act] § 301 claim or dismissed as
pre-empted by federal labor-contract law."
Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 211
(1985); Lingle v. Norge Div. of Magic Chef, Inc.,
486 U.S. 399, 399-400 (1988) ("If the resolution of a
state law claim depends upon the meaning of a collective
bargaining agreement, the application of state law ... is
preempted and federal labor law principles necessarily
uniform throughout the Nation must be employed to resolve the
dispute."). But even if I construe Mr. Parks' claims
as invoking Section 301, Giant argues that "[a] n
employee covered by a CBA cannot sue his employer under
Section 301 unless he has first exhausted his contractual
grievance and arbitration remedies and/or he alleges his
union breached its duty of fair representation." Mot.
Dismiss 6; United Paperworkers Int'l Union, AFL-CIO
v. Misco, Inc., 484 U.S. 29, 37 (1987) ("courts
have jurisdiction to enforce collective-bargaining contracts;
but where the contract provides grievance and arbitration
procedures, those procedures must first be exhausted and
courts must order resort to the private settlement mechanisms
without dealing with the merits of the dispute").
federal district courts do have jurisdiction to consider a
direct suit if a union employee raises dual allegations: that
(1) that the employer has breached the CBA and (2) that the
employee's union has breached its duty of fair
representation. DelCostello v. Int'l Bhd. of
Teamsters,462 U.S. 151, 164-5 (1983) ("In such an
instance, an employee may bring suit. . . notwithstanding the
outcome or finality of the grievance or arbitration
proceeding."). As Giant considers it beyond question
that Mr. Parks' allegations effectively assert a breach
of the CBA's terms, and Mr. Parks himself makes some
reference to his union status, it is certainly a reasonable
inference from the pleadings that the Plaintiff is alleging a
breach of the CBA. As for the second required prong, Mr.
Parks has claimed that "[a]s for the Union[, ] they are
in bed with the company and have always been no help."
Am. Response 3. Construing this assertion ...