Parks v. Giant of Md., LLC

295 F.Supp.3d 5

Tony D. PARKS, Plaintiff,

v.GIANT OF MARYLAND, LLC, Defendant.

Case No. 1:17–cv–00825–TNM

United States District Court, District of Columbia.

Signed February 15, 2018

Tony D. Parks, Washington, DC, pro se.

David R. Broderdorf, II, Jonathan C. Fritts, Morgan, Lewis & Bockius LLP, Washington, DC, for Defendant.

MEMORANDUM OPINION

TREVOR N. MCFADDEN, United States District Judge

Tony D. 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 D.C. Superior Court, alleging that after being promoted he "was not given the proper raise," and after he filed a "retaliation suit" he was "threaten[ed] 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.

I. Background

Mr. 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.

In 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.

II. Legal Standards

"To 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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.’ " Banneker Ventures, LLC v. Graham , 798 F.3d 1119, 1129 (D.C. Cir. 2015) (alteration omitted) (quoting Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 ). In this inquiry, a court must "draw all reasonable inferences from those allegations in the plaintiff's favor." Id.

III. Analysis

A. The Claims At Issue

At the outset, I must consider which allegations are to be considered: those in the initial complaint alone, or those claims as supplemented by the Plaintiff's 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.

Ordinarily, "[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, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (quoting Estelle v. Gamble , 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (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.¹

B. Plaintiff's Pay Claims Survive

The 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 (75¢) 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, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985) ; Lingle v. Norge Div. of Magic Chef, Inc. , 486 U.S. 399, 399–400, 108 S.Ct. 1877, 100 L.Ed.2d 410 (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, 108 S.Ct. 364, 98 L.Ed.2d 286 (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").

Nevertheless, 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, 103 S.Ct. 2281, 76 L.Ed.2d 476 (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 liberally as I must, I conclude that Mr. Parks has asserted both a breach of the CBA and a breach of the union's duty to provide fair representation. Accordingly, Mr. Parks' claims regarding his pay survive this motion to dismiss.

C. Plaintiff's Retaliation Claims Are Preempted

However, Mr. Parks' assertions that Giant retaliated against him because he filed a complaint (or complaints) with the National Labor Relations Board will be dismissed, because they are subject to the exclusive jurisdiction of that body. See Mot. Dismiss 11–13. Mr. Parks alleges that after he "complain[ed] and filed [a] retaliation suit" regarding inadequate wages, he "was threatened by a manager[,] transferred and written up[,] then terminated."

Compl. 1; see also Opp. 1–2; Am. Response 2–3. The Supreme Court has held that "[w]hen an activity is arguably subject to Section 7 or Section 8 of the [National Labor Relations] Act, the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board." San Diego Bldg. Trades Council v. Garmon , 359 U.S. 236, 245, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959). Although a federal district court might still have jurisdiction if the conduct subject to the NLRA "also constitutes a breach of a collective-bargaining agreement," William E....