UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MICHAEL BULLOCK,

Plaintiff, v. Civil Action No. 16-1645 (JEB) AMERICAN SECURITY PROGRAM, INC.,

Defendant.

MEMORANDUM OPINION

George Burns once quipped that the secret to a good sermon involves having a good

beginning and a good ending, and to have the two as close together as possible. Whether or not

this is true of sermons, pro se Plaintiff Michael Bullock admittedly tests the limits of this axiom

as applied to pleading a claim here. In his four-sentence Complaint, he asserts that his former

employer, Defendant American Security Program, Inc., breached a settlement agreement with

him and his union by failing to help him get a new job at one of its worksites. ASP now moves

to dismiss his Complaint for failure to state a claim. As the Court concludes that Bullock’s

Opposition provides sufficient additional facts to state a plausible right to relief under Section

301 of the Labor Management Relations Act, it will deny the Motion.

I. Background

The Court, as it must at this stage, draws the facts from Plaintiff’s one-paragraph

Complaint and his Opposition to the Motion to Dismiss. See Brown v. Whole Foods Market Gr.,

Inc.,

(D.C. Cir. 2015) (holding district court must consider all pro se litigant’s

allegations when considering a motion to dismiss, including those found in plaintiff’s opposition). Because Plaintiff also incorporates by reference several emails attached to his

Opposition, the Court considers him to have pled the facts contained in those communications as

well.

Defendant American Security Programs employed Bullock as a security guard from

August 24, 2010, to November 27, 2013. See ECF No. 8 (Opposition) at 1. In May 2013,

Bullock worked at a site controlled by the Federal Protective Service.

This position required

a suitability determination, which is similar to a security clearance.

Exhs. 7, 9, 12. FPS, not

the employer, issues such determinations after an investigation into an applicant’s background.

See ECF No. 8, Exh. 9 (Response to Level III Grievance) at 1.

On May 9, 2013, ASP realized that Bullock did not actually possess an active suitability

determination and consequently suspended his employment at the FPS site. See Resp. to

Grievance at 2. Plaintiff filed a complaint challenging this suspension with his Union — the

United Government Security Officers of America International Union — as required under a

Collective Bargaining Agreement between the Union and ASP. See Opp. at 1. Pursuant to the

CBA, the Union and ASP then negotiated Bullock’s grievance through several stages of a

mandatory process. See Opp., Exhs. 1-9, 12. At the third step in this process, ASP’s Senior

Vice President, Jeffrey Roehm, provided the Company’s formal “response” to the grievance,

explaining that ASP had submitted paperwork to FPS when Bullock came on board in 2011 to

request that the agency recognize and apply his suitability determination from his previous

employer. See Resp. to Grievance at 1. ASP’s response further asserted, however, that on

February 27, 2013, an internal audit revealed that FPS had never acted on that 2011 request, thus

forcing the Company to renew its request to transfer Bullock’s suitability determination. Id. at 2.

According to the Company, FPS responded three months later to this renewed request by stating

2 that it had already found Bullock unsuitable two years prior, in March 2011, after unsuccessfully

attempting to resolve several issues with him. Id. Based on these facts, ASP claimed in its

response letter that it had no choice but to suspend Bullock until he could obtain the requisite

suitability determination. Id.

This same letter also contained ASP’s proposed resolution to Bullock’s grievance, laid

out in three commitments. Id. at 4. The Company first articulated that it “want[ed] to help him

have an opportunity to resolve his ‘issues’ with FPS, and help to put him back to work as soon as

possible.” Id. ASP, however, also “reiterate[ed]” that the suitability determination “is between

himself and FPS,” and thus the Company could only help him resubmit paperwork for the

government’s ultimate processing and determination. Id. ASP next promised that “[i]f and

when Mr. Bullock receives his favorable suitability from FPS, ASP will make every effort to

find him suitable employment on an ASP/FPS contract.” Id. Finally, the Company asserted that

its “offer still stands to work with Mr. Bullock to try to find him work on a non-FPS site during

the interim period.” Id.

Neither the Union nor the Company subsequently escalated the grievance to the fourth

stage of the CBA process — i.e., referral for binding arbitration. See Opp, Exh. 12 at 1. Bullock

instead proceeded to interview for a non-FPS worksite in Maryland on September 25, 2013. See

Opp. at 2. The very same day, the Union emailed Roehm to affirm that Bullock had agreed to

pick an available non-FPS location to work at until such time as his “suitability comes back.”

Opp., Exh. 12 at 1. The Union’s email further noted that ASP had agreed to change his

“termination status” to “transfer/pending status” until FPS made the new determination. Id.

Three hours later, Roehm responded to this email and agreed to the Union’s terms with “one

qualification: Mr. Bullock must choose a site to work, and begin to work, within the next 30-

3 days or we will not carry him any longer as a[n] active employee. If his suitability were to be

approved after he is removed from the company roles [sic], and he wishes to again be employed

by ASP, he would have to reapply for employment.” Id.

Over the next two weeks, Bullock completed the required training for an available non-

FPS post with the Company. See Opp. at 2; Id., Exhs. 11, 13. He could not, however, reach

either Roehm or the ASP manager of that worksite, as they were out on vacations, to confirm his

assumption of this position. See Opp. at 2. On November 26, 2013, he also learned that ASP

had not returned a form to the State of Maryland for his handgun permit, which he also needed to

obtain for the new position. See Opp., Exh. 14. Maryland thus denied him the permit. Id. The

pleadings do not indicate what happened thereafter, although Bullock says he continued to be

unemployed. See Opp. at 4. The Court thus infers that he was terminated and never reinstated to

a new worksite by ASP.

On July 22, 2016, nearly three years later, Bullock filed this pro se action in the District

of Columbia Superior Court alleging a breach-of-contract claim. See ECF No. 1-1 (Complaint).

His Complaint in its entirety reads:

As an employee of ASP working on a FPS government site, I was removed from the worksite because of my clearance. There was an agreement between myself, ASP and my union, UGSOA, to have me transferred to a non-FPS government site. This agreement was agreed upon in November 2013. ASP never held up to their side of agreement.

Id. Having removed the case to this Court based on diversity jurisdiction, ASP now moves to

dismiss the Complaint in its entirety. See ECF No. 5 (Motion to Dismiss).

II. Legal Standard

The Federal Rules of Civil Procedure require a plaintiff to include “a short and plain

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

4 Federal Rule of Civil Procedure 12(b)(6), in turn, provides for the dismissal of an action where

such a complaint fails “to state a claim upon which relief can be granted.”

In evaluating a Rule 12(b)(6) motion, the Court must “treat the complaint’s factual

allegations as true . . . and must grant plaintiff ‘the benefit of all inferences that can be derived

from the facts alleged.’” Sparrow v. United Air Lines, Inc.,

(D.C. Cir.

2000) (quoting Schuler v. United States,

(D.C. Cir. 1979)) (citation omitted).

The pleading rules are “not meant to impose a great burden,” see Dura Pharm., Inc. v. Broudo,

(2005), and “detailed factual allegations” are thus not necessary, see Bell Atl.

Corp. v. Twombly,

(2007). A complaint, however, “must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft

v. Iqbal,

(2009) (quoting Twombly,

). The Court need not

accept as true “a legal conclusion couched as a factual allegation,” nor an inference unsupported

by the facts set forth in the complaint. Trudeau v. Fed. Trade Comm’n,

(D.C.

Cir. 2006) (quoting Papasan v. Allain,

(1986) (internal quotation marks

omitted)). The facts instead “must be enough to raise a right to relief above the speculative

level” even if “recovery is very remote and unlikely.” Twombly,

-56 (citing

Scheuer v. Rhodes,

(1974)). While a pro se pleading is held to “less stringent

standards than formal pleadings drafted by lawyers, [it] must nonetheless plead factual matter

that permits [the Court] to infer more than the mere possibility of misconduct.” Brown,

(internal quotations and citations omitted).

III. Analysis

In pressing its Motion to Dismiss, ASP advances three arguments. It first contends that

the Complaint does not point to a binding agreement between ASP and the Union to place

5 Bullock on a non-FPS worksite and thus fails to state a plausible breach-of-contract claim. See

Mot. at 9-11. The Company next asserts that, even if such a contract exists, any common-law

contract claim that ASP breached that agreement is preempted by Section 301 of the Labor

Management Relations Act. Id. at 11-13. Finally, ASP argues that, even if the Court treats

Bullock’s claim as pled under the LMRA, it cannot survive because he never exhausted the

CBA’s mandatory grievance procedures before filing this action. Id. at 13-15. Taking up each

of these arguments sequentially, the Court concludes that Bullock’s common-law contract claim

is indeed preempted by Section 301, but his Complaint nevertheless survives because he has

stated a plausible right to relief under that provision of the LMRA.

There is little need to linger on ASP’s first argument about the elements required to

establish a viable breach-of-contract claim under District of Columbia law. Regardless of

whether, in the abstract, the Union and ASP’s communications during the grievance process

would normally form an enforceable contract under such laws, the CBA here explicitly provides

that “[a]ny dispute or grievance not processed or appealed by the Union within the time limits set

forth in any Step shall be considered settled on the basis of the Employer’s last preceding

Answer.” ECF No. 5-2 (Collective Bargaining Agreement), Section 16.6 at 19. The Court

understands Bullock to base his claim in this action on ASP’s documented answer at Step III of

his suspension-grievance process. See Opp., Exh. 9. Under the CBA, then, Roehm’s response

letter plausibly constitutes settlement of that grievance, which Bullock could theoretically seek to

enforce.

The Company is correct, however, that any such claim is preempted by Section 301 of

the LMRA and thus cannot proceed as a common-law contract cause of action. Section 301

grants federal courts jurisdiction over disputes “for violation of contracts between an employer

6 and a labor organization representing employees in an industry affecting commerce.”

(a). This provision thus serves as the basis for federal preemption of “any statute cause of

action for violation of contracts between an employer and a labor organization.” Franchise Tax

Bd. v. Constr. Laborers Vacation Trust,

(1983) (internal quotation marks

omitted). When a state-law claim fits this description, “that claim must either be treated as a

§ 301 claim, or dismissed as pre-empted by federal labor-contract law.” Allis-Chalmers Corp. v.

Lueck,

(1985). This is so even where the relevant labor contract between the

union and employer – here, the settlement agreement – is not itself a CBA. See Retail Clerks

Int’l Ass’n v. Lion Dry Goods, Inc.,

(1962) (holding Section 301 provides “[a]

federal forum . . . for actions on other labor contracts besides collective bargaining contracts”).

The settlement agreement that Bullock points to here is clearly a “contract[] between an

employer and a labor organization representing employees in an industry affecting commerce.”

(a); see also Olson v. Bemis Co., Inc.,

(7th Cir. 2015)

(holding grievance settled through CBA process preempted by Section 301 and collecting cases

for same); see also Davis v. Bell Atl.-W. Va., Inc.,

(4th Cir. 1997); Jones v.

Gen. Motors Corp.,

(6th Cir. 1991). The emails and letters he relies on for

the formation of this agreement are between the Union and ASP alone, despite Bullock’s

characterization of them in his Complaint. See ECF No. 8, Exhs. 6-9, 12. He, in fact, is not even

copied on them.

The Court thus concludes that his breach-of-contract claim is squarely

preempted by Section 301 and, as a result, must either be treated as such or dismissed. Allis-

Chalmers,

.

ASP, not surprisingly, argues that either path leads to the same result – viz., dismissal.

The Company points out that Bullock never claims that he pursued the grievance process

7 established by the CBA for the alleged breach of the settlement agreement before bringing this

action. To be sure, “[o]rdinarily . . . an employee is required to attempt to exhaust any grievance

or arbitration remedies provided in the collective bargaining agreement” before heading to court

with a Section 301 claim, see DelCostello v. Int’l Bhd. of Teamsters,

(1983),

and this “principle applies equally to the alleged breach of a settlement agreement as to the

dispute that sparked the grievance in the first place.” Olson,

.

This exhaustion requirement, however, is not absolute.

At least sometimes, an

“employee’s claim is not subject to mandatory alternative-dispute resolution (under the CBA or

otherwise), [and] he can bring a straightforward breach of contract suit under § 301, which

closely resembles an action for breach of contract cognizable at common law,” without first

going through a CBA-mandated grievance process. Id. (citations and quotation marks omitted).

Bullock appears to base his claim here on the Company’s failure to assist him in finalizing his

new job at the non-FPS worksite, as well as its failure to respond to the inquiry about his

handgun permit.

ASP does not explain where the CBA at issue in this case requires exhaustion of either of

these underlying actions. The Company instead relies only on a single case, Robinson v. Wash.

Metro. Area Transit Auth.,

(D.D.C. 2016), to argue that a grievance

settlement is always subject to the mandatory grievance procedures found in the CBA. See ECF

No. 9 (Reply) at 7-8. In Robinson, however, the settlement explicitly provided that any dispute

arising from it would be subject to the CBA’s mandatory grievance process. See

. No such provision exists in the purported settlement agreement here. The relevant

CBA, too, appears to only require that “discharge and discipline matters shall be subject to the

grievance and arbitration procedures contained in this Agreement.” CBA, Section 16.1 at 14.

8 Neither of the actions on which Bullock rests his claim appears at first blush to necessarily fall

within the typical meaning of these terms, and ASP makes no such supportive textual argument

at this stage. The Company instead simply claims that all disputes over such settlement

agreements must be exhausted through the CBA’s grievance procedures without citing to any

case in our circuit that supports such a sweeping rule. There is, in fact, an apparent circuit split

over how to treat the breach of side agreements in relation to a CBA’s mandatory grievance

procedures. See United Steelworkers of Am. v. Cooper Tire & Rubber Co.,

, 278-

79 (6th Cir. 2007) (discussing circuit split). The issue is thus not appropriate for disposition at

this early stage of the litigation, especially given the lack of thorough briefing on this important

matter of law. Accord Olson,

(declining to apply in-circuit presumption at

motion-to-dismiss stage even with settlement agreement in record).

While it may turn out that the CBA required Bullock to exhaust his alternative-dispute

procedures for this claim or that the Company has other valid defenses, the Court at this point

concludes that Plaintiff has done enough to “raise a right to relief above the speculative level,”

even if “recovery is very remote and unlikely.” Twombly,

-56 (citing Scheuer v.

Rhodes,

(1974)). As a result, it will allow his claim to proceed under Section

301 of the LMRA as pled.

9 IV. Conclusion

For the reasons articulated herein, the Court will issue a contemporaneous Order denying

Defendant’s Motion to Dismiss.

/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge

Date: October 31, 2016

10