United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
TIMOTHY J. KELLY UNITED STATES DISTRICT JUDGE
Blessing Ekemezie worked as a pharmacist for CVS Pharmacy,
Inc. (“CVS”) for twenty-five years, until she was
fired on September 12, 2015. She claims that her firing
violated federal and District of Columbia law for several
reasons, including that it breached the collective bargaining
agreement governing her employment and that it was the
product of unlawful age-and race-based discrimination. CVS,
for its part, asserts that the firing was justified by
repeated instances of poor performance. Ekemezie also claims
that her union, United Food & Commercial Workers Local
400 (“Local 400”), improperly declined to pursue
a grievance on her behalf against CVS. Local 400 has moved to
dismiss her “hybrid § 301 / fair representation
claim” as time-barred, and CVS has moved for partial
judgment on the pleadings on the same ground. For the reasons
explained below, these motions will be granted.
Factual and Procedural Background
purposes of this decision, the Court takes as true the
allegations in Ekemezie's Amended Complaint. Ekemezie
worked at CVS for twenty-five years. ECF No. 12
(“Am. Compl.”) ¶ 6. For eighteen of these
years, she served as “Pharmacist in Charge” at a
CVS location. Id. ¶ 12. Starting in May 2015,
Ekemezie's newly-hired manager began to criticize her
performance on the basis of multiple customer complaints,
id. ¶¶ 17, 23, mishandling of records,
id. ¶ 80, and a failure to follow
prescription-verification measures designed to ensure patient
safety, id. ¶¶ 21, 82-83. The manager also
claimed that productivity at the store had increased while
Ekemezie was on vacation. See Id. ¶ 30. On
September 12, 2015, the manager terminated Ekemezie after she
once again failed to follow the prescription-verification
procedures. Id. ¶¶ 6, 90. Ekemezie alleges
that CVS's asserted grounds for her termination were
pretextual and that she was actually terminated because of
her race and age and because, as a long-tenured employee, she
enjoyed a high salary that made her costly to retain.
Id. ¶ 113.
days after her termination, on September 15, 2015, Local 400
filed a grievance on Ekemezie's behalf against CVS,
alleging that her dismissal was without cause and thus
violated the collective bargaining agreement. Pl.'s Ex.
Five months later, on February 22, 2016, Local 400 sent a
letter to Ekemezie informing her that CVS had offered to
settle her grievance for just over $30, 000. Pl.'s Ex. C.
Local 400 “strongly recommend[ed]” she accept the
settlement because her “case lack[ed] sufficient merit
to proceed to arbitration.” Id. The letter
explained that, if Ekemezie chose “not to accept this
offer within 30 days, ” Local 400 would “be
forced to withdraw [her] grievance.” Id.
Ekemezie did not accept the settlement. Am. Compl. ¶
150. On March 23, 2016, Local 400 informed Ekemezie that it
had reviewed her case thoroughly and “there [was] not
sufficient basis to warrant arbitration or pursuing [her]
grievance further.” Pl.'s Ex. F. In the same
letter, Local 400 stated that it would “consider the
matter closed” unless she provided “newly
discovered evidence concerning [her] grievance” within
seven days. Id. On March 25, 2016, Ekemezie sent
Local 400's Executive Board a letter appealing the
decision. Pl.'s Ex. G. After hearing nothing for almost
two months, Ekemezie sent a follow-up letter on May 21, 2016,
reattaching her original appeal. Pl.'s Ex. I. On May 31,
2016, Local 400 informed Ekemezie that the Board would
consider her appeal and respond as soon as it had made a
decision. Pl.'s Ex. H.
letter dated July 19, 2016 (the “July 19
Letter”), Local 400 again informed Ekemezie that
“there [was] not sufficient basis to warrant
arbitration or pursuing [her] grievance further” and
that unless she contacted Local 400 “in writing within
the next 7 days to provide [it] with any newly discovered
evidence concerning [her] grievance, ” it would
“have to consider the matter closed and [would] take no
further action.” Pl.'s Ex. J. Ekemezie received the
letter on July 30, 2016, when she returned from vacation. Am.
Compl. ¶ 155. On August 1, 2016, she contacted a Local
400 official to explain that she had just returned and
intended to respond to the union's decision on her
appeal. Pl.'s Ex. K; see Am. Compl. ¶ 155;
ECF No. 27-1 (“Pl.'s Opp'n”) at 8. On
August 8, 2016, Ekemezie sent Local 400 a follow-up letter
asking for information about the basis for the Executive
Board's decision not to arbitrate on her behalf and how
she could further appeal it. Pl.'s Ex. K. On August 29,
2016, Local 400 responded to Ekemezie's questions in a
letter describing the previous actions taken on her behalf,
outlining Local 400's grounds for not pursuing the matter
further, and informing her that “[t]here are no other
internal appeal processes available.” Pl.'s Ex. E.
filed suit on February 28, 2017. See ECF No. 1. Her
amended complaint asserts five counts. See Am.
Compl. ¶¶ 159-203. Count I is a “hybrid
§ 301 / fair representation claim” against CVS and
Local 400. Am. Compl. ¶¶ 159-169. Counts II
through V, which are not the subject of the instant motions,
allege that CVS discriminated against Ekemezie on the basis
of age and race, created a hostile work environment, and
intentionally caused her to suffer severe emotional distress.
Id. ¶¶ 170-203.
400 has moved to dismiss Count I, the only claim against it,
as time-barred under the six-month statute of limitations
governing “hybrid § 301 / fair representation
claims.” ECF No. 24. CVS has filed a motion for partial
judgment on the pleadings on the same ground. ECF No. 25.
Rule 12(b)(6) motion to dismiss tests the legal sufficiency
of a plaintiff s complaint; it does not require a court to
‘assess the truth of what is asserted or determine
whether a plaintiff has any evidence to back up what is in
the complaint.'” Herron v. Fannie Mae, 861
F.3d 160, 173 (D.C. Cir. 2017) (quoting Browning v.
Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002)). “In
evaluating a Rule 12(b)(6) motion, the Court must construe
the complaint ‘in favor of the plaintiff, who must be
granted the benefit of all inferences that can be derived
from the facts alleged.'” Hettinga v. United
States, 677 F.3d 471, 476 (D.C. Cir. 2012) (quoting
Schuler v. United States, 617 F.2d 605, 608 (D.C.
Cir. 1979)). “But the Court need not accept inferences
drawn by plaintiff if those inferences are not supported by
the facts set out in the complaint, nor must the court accept
legal conclusions cast as factual allegations.”
Id. “To survive a motion to dismiss, a
complaint must have ‘facial plausibility,' meaning
it must ‘plead factual content that allows the court
to draw the reasonable inference that the defendant is liable
for the misconduct alleged.'” Id.
(alteration in original) (quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)). In deciding a motion to dismiss
under Rule 12(b)(6), the Court “may consider only the
facts alleged in the complaint, any documents either attached
to or incorporated in the complaint and matters of which [the
court] may take judicial notice.” Hurd v. District
of Columbia, 864 F.3d 671, 678 (D.C. Cir. 2017)
(alteration in original) (quoting EEOC v. St. Francis
Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir.
complaint will be dismissed under Rule 12(b)(6) as
‘conclusively time-barred' if ‘a trial court
determines that the allegations of other facts consistent
with the challenged pleading could not possibly cure the
deficiency.'” Momenian v. Davidson, 878
F.3d 381, 387 (D.C. Cir. 2017) (quoting Firestone v.
Firestone, 76 F.3d 1205, 1209 (D.C. Cir. 1996))
(internal quotation marks omitted). “Yet ‘courts
should hesitate to dismiss a complaint on statute of
limitations grounds based solely on the face of the
complaint' because ‘statute of limitations issues
often depend on contested questions of fact.'”
Id. (quoting Firestone, 76 F.3d at 1209).
“Instead, as long as a plaintiff's potential
‘rejoinder to the affirmative defense [is not]
foreclosed by the allegations in the complaint,'
dismissal at the Rule 12(b)(6) stage is improper.”
De Csepel v. Republic of Hungary, 714 F.3d 591, 608
(D.C. Cir. 2013) (alteration in original) (quoting
Goodman v. Praxair, Inc., 494 F.3d 458, 466 (4th
Cir. 2007) (en banc)).
Rule 12(c) motion . . . is functionally equivalent to a Rule
12(b)(6) motion.” Rollins v. Wackenhut Servs.,
Inc., 703 F.3d 122, 130 (D.C. Cir. 2012). “In
considering a motion for judgment on the pleadings, the Court
should ‘accept as true the allegations in the
opponent's pleadings' and ‘accord the benefit
of all reasonable inferences to the non-moving
party.'” Stewart v. Evans, 275 F.3d 1126,
1132 (D.C. Cir. 2002) (quoting Haynesworth v.
Miller, 820 F.2d 1245, 1249 n.11 (D.C. Cir. 1987)).
instant motions concern Ekemezie's “hybrid §
301 / fair representation claim” against CVS and Local
400. Such claims consist of two intertwined causes of action:
a claim against the employer, pursuant to Section 301 of the
Labor Management Relations Act, 29 U.S.C. § 185, for
breach of the collective bargaining agreement, and a claim
against the union for breach of its duty of fair
representation (implied from the National Labor Relations
Act, 29 U.S.C. § 151 et seq.). Cephas v. MVM,
Inc.,520 F.3d 480, 485 (D.C. Cir. 2008). A six-month
statute of limitations governs these hybrid claims. See
Malloy v. WMATA,689 Fed.Appx. 649, 650 (D.C. Cir. 2017)
(citing DelCostello v. Int'l Bhd. of Teamsters,462 U.S. 151, 169 (1983)). Both causes of action accrue
simultaneously. Proudfoot v. Seafarer's Int'l
Union,779 F.2d 1558, 1559 (11th Cir. 1986). The statute
of limitations “begins to run when ‘the claimant
discovers, or in the ...