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Ekemezie v. CVS Pharmacy, Inc.

United States District Court, District of Columbia

July 5, 2018

CVS PHARMACY, INC. et al., Defendants.



         Plaintiff 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.

         I. Factual and Procedural Background

         For purposes of this decision, the Court takes as true the allegations in Ekemezie's Amended Complaint. Ekemezie worked at CVS[1] 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.

         Three 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. B.[2] 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.

         In a 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.

         Ekemezie 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.[3] 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.

         Local 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.

         H. Legal Standard

         “A 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. 1997)).

         “A 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)).

         “[A] 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)).

         HI. Analysis

         The 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 ...

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