UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ABDUL-AZZIZ RAZZAK, JR.,

Plaintiff,

v. Civil Action No. 23-3557 (TJK)

EXCALIBUR ASSOCIATES, INC.,

Defendant.

MEMORANDUM OPINION & ORDER

Abdul-Azziz Razzak, Jr. accepted an offer to work as a part-time security officer for Ex-

calibur Associates, Inc. Shortly after the company hired him, Razzak asked for a religious accom-

modation permitting him to maintain a full beard as required by his Islamic faith. Excalibur even-

tually rejected his request in April 2022. Although Razzak received over $1,500 for participating

in training, he never obtained an accommodation for his beard and never worked an official post-

training shift as a security officer for the company. In June 2022, Excalibur released Razzak from

his part-time position.

Razzak now sues Excalibur for discrimination and retaliation under Title VII of the Civil

Rights Act of 1964. Excalibur responds that his claims are subject to the collective-bargaining

agreement’s mandatory grievance-and-arbitration process, so it asks the Court to dismiss them and

compel arbitration. But Razzak’s statutory claims are distinct from any contractual claims he

might have possessed for violations of the bargaining agreement. And because that agreement

does not clearly and unmistakably require employees to submit Title VII claims to the grievance

process, the Court will deny Excalibur’s motion to compel arbitration. I. Background

Razzak is a career security officer. ECF No. 1 (“Compl.”) ¶ 17. He is also a devout Muslim

whose religious beliefs require him to maintain a full beard at least as long as a clenched fist. Id.

In January 2022, Excalibur—a federal contractor providing security services to government agen-

cies—offered him a job as a part-time security officer at the headquarters for the United States

Department of Agriculture. See ECF No. 8-2 at 6. Razzak accepted this offer later that month.

See id. at 8. Although his “first regular day of work was scheduled for April 26, 2022,” id. at 3,

he completed several onboarding tasks and was paid to participate in training before then, id. at

51, 53; Compl. ¶ 22. Excalibur’s internal human-resources system listed Razzak as an “active”

employee as of April 7 at the latest. ECF No. 12-1 at 4; see also id. at 67.

The offer letter that Razzak signed explained that his position was “covered by the [United

Government Security Officers of America International] Union Collective Bargaining Agreement”

(“the CBA”). ECF No. 8-2 at 6. Excalibur entered the relevant bargaining agreement with the

security officers’ union in October 2020. See ECF No. 9-3 (“CBA”) at 3, 40. In doing so, Excal-

ibur agreed to recognize the union as “the sole and exclusive bargaining agent representing all

Full-Time and Part-Time Special Police Officers . . . and Security Officers . . . employed by [Ex-

calibur] in service to the United States Department of Agriculture.” Id. § 1.1(A). All “[e]mployees

in th[at] bargaining unit,” the CBA explains, fall within the definition of “[e]mployee” for purposes

of the agreement. Id. § 1.1(B). Further, the CBA establishes a “grievance procedure” that operates

as “the exclusive process for the resolution of all grievances,” which the CBA defines in two ways:

(1) “a claimed violation, misinterpretation[,] or misapplication of any provision of this Agree-

ment,” or (2) “the challenge of any disciplinary action taken against a Union Employee.” Id. § 5.1.

Grievances that remain “unsettled” after a multi-step dispute-resolution process “may be processed

to arbitration by the Union.” Id. § 5.4.

2 Beginning in March 2022, Razzak tried to obtain a religious accommodation permitting

him to maintain his full-length beard despite Excalibur’s no-beard policy. See Compl. ¶¶ 23–30.

He claims that a contract manager informed him in early March that “they would work on” the

request, which “should not be a problem.” Id. ¶ 24. In mid-April, Razzak told the contract man-

ager that because the “higher ups” had yet to clear the facial-hair accommodation, he would not

“be able to start right away.” ECF No. 15-1 at 1. The next day, a project manager told Excalibur’s

vice president of human resources that Razzak had requested an accommodation for his beard.

ECF No. 8-2 at 55. The vice president emailed Razzak on April 20, explaining that Excalibur

“cannot approve the request”; a full-length beard “would conflict with [Excalibur’s] mandated

security requirements,” and accommodating Razzak’s “request would create an undue hardship on

the business.” Id. at 62. Excalibur released Razzak from his part-time employment about two

months later. Id. at 3; Compl. ¶ 30.

Towards the end of 2022, Razzak filed a complaint with the Equal Employment Oppor-

tunity Commission based on Excalibur’s rejection of his accommodation request. Compl. ¶¶ 34,

38. While waiting for a right-to-sue letter, Razzak’s counsel told Excalibur in August 2023 that

Razzak would not pursue his claims through the CBA’s grievance process. ECF No. 8-3 at 2.

Excalibur sued Razzak in Maryland state court a few weeks later, seeking reimbursement for the

cost of his training sessions and equipment. Compl. ¶¶ 36–38. The Montgomery County District

Court apparently dismissed that case in early 2024. See Excalibur Assocs., Inc. v. Abdul-Azziz

Razzak, Jr., D-06-CV-23-018191.

True to his word, Razzak sued Excalibur after receiving his right-to-sue letter. He brings

four claims under Title VII: two for discrimination, one for retaliation, and another for constructive

discharge. See Compl. ¶¶ 41–85. Excalibur moves to compel arbitration under the Federal

3 Arbitration Act,

et seq.

II. Legal Standard

The Federal Arbitration Act “reflects the fundamental principle that arbitration is a matter

of contract.” Rent-A-Center, West, Inc. v. Jackson,

(2010). To enforce that con-

tract, a litigant may petition for an order compelling arbitration under the terms of the agreement.

See

. “[T]he standard for resolving summary judgment motions under Federal Rule

of Civil Procedure 56(c)” applies to such motions to compel. Shatteen v. Omni Hotels Mgmt.

Corp.,

(D.D.C. 2015) (citing Aliron Int'l, Inc. v. Cherokee Nation Indus.,

Inc.,

(D.C. Cir. 2008)). If the Court determines that the parties agreed to arbi-

trate the disputed claim, it “shall make an order directing the parties to proceed to arbitration.”

. Specifically, the Court asks “whether there is a valid agreement” and, if so, “whether

the specific dispute falls within the scope of the arbitration agreement.” Johns v. Newsmax Media,

Inc.,

(D.D.C. 2012). “[S]ummary disposition of the issue of whether or

not” the parties agreed to arbitrate the claim “is appropriate only if there is no genuine issue as to

any material fact and . . . the moving party is entitled to judgment as a matter of law.” Aliron Int’l,

(internal quotation marks and citations omitted).

III. Analysis

Excalibur contends that the CBA bound Razzak when he accepted employment with the

company on January 23, 2022—or, at the very latest, when he started working on April 1 of that

year. ECF No. 12 at 2, 4. The company adds that Razzak, once bound, had to “arbitrate any

employment related claims . . . against” it. ECF No. 8-1 at 1. Razzak disagrees on both scores.

He says that he was never subject to the CBA; the offer letter references his first day “working,”

but Razzak did not advance past training given the denied accommodation request. ECF No. 9-1

at 14; see also ECF No. 15 at 3–5. And even if the CBA did bind him, Razzak contends that the

4 mandatory grievance procedure does not cover his Title VII claims with the required level of clar-

ity. ECF No. 9-1 at 8–10. Finally, Razzak tacks on several arguments related to the state-court

suit that Excalibur filed against him, which he believes prevents the company from compelling

arbitration now. See

at 10–15.

The Court need not decide whether the CBA bound Razzak. Even if it did, his Title VII

claims are subject to the mandatory grievance procedure only if the agreement clearly and unmis-

takably requires that he submit those claims to that process. The CBA, though, could be read to

cover only contractual discrimination claims. So the Court will deny Excalibur’s motion.

A collective-bargaining agreement may require that employees resolve statutory claims

through arbitration rather than litigation. See 14 Penn Plaza LLC v. Pyett,

, 257–58,

273–74 (2009). But it may do so only if the “CBA requirement to arbitrate” the “statutory claim”

is “clear and unmistakable.” Wright v. Universal Mar. Serv. Corp.,

, 79–80 (1998).

The question here, then, is “whether the collective bargaining agreement clearly and unmistakably

requires [Razzak] to use the grievance and arbitration procedure to resolve his [Title VII] claim[s]

rather than skipping over that process and proceeding directly to court.” Vega v. New Forest Home

Cemetery, LLC,

(7th Cir. 2017). The waiver of the judicial forum, moreover,

must cover the “federal statutory claims” that he raises; it is not enough for the agreement to require

arbitration of “overlap[ping]” contractual claims, which remain “conceptually distinct” from stat-

utory causes of action. Manning v. Boston Med. Ctr. Corp.,

(1st Cir. 2013) (cita-

tion omitted). In other words, an employee “subject[] to discriminatory treatment” and bound by

a collective-bargaining agreement may “hold two similar claims, one based in statute, and one

based in contract.” Ibarra v. United Parcel Serv.,

(5th Cir. 2012) (citation

omitted). And that employee loses his right to bring statutory claims in court only if the agreement

5 clearly and unmistakably “require[s] submission of” those specific claims to arbitration. Mathews

v. Denver Newspaper Agency LLP,

(10th Cir. 2011). A bargaining agreement

that “could be interpreted to” cover “disputes under the CBA and not claims under antidiscrimi-

nation statutes” does not meet this standard. Lawrence v. Sol G. Atlas Realty Co.,

(2d Cir. 2016) (emphasis added).

The CBA does not clear this high bar. Article V, the “Grievance Procedure,” requires only

that “grievances” proceed through the grievance process. CBA § 5.1. And only two kinds of

disputes qualify as a grievance: (1) “a claimed violation, misinterpretation[,] or misapplication of

any provision of” the CBA, or (2) “the challenge of any disciplinary action taken against a Union

Employee.” Id. Excalibur hardly contends that the second definition clearly and unmistakably

applies to Razzak’s statutory claims. Although the company gestures at that clause in its reply

brief, see ECF No. 10 at 4, Excalibur offers no reason to construe the second type of grievance as

covering Title VII claims. This definition of grievance “nowhere reference[s]” claims under that

statute or, for that matter, under any statute. Cloutier v. GoJet Airlines, LLC,

, 436

(7th Cir. 2021). Nor does it cross-reference another provision that might provide the required

clarity about statutory claims. Finally, this clause applies only to disciplinary actions against “Un-

ion Employee[s],” suggesting that it may not even cover Razzak, who claims that he never joined

the union. CBA § 1.6 (emphasis added). For these reasons, and because Excalibur offers no

meaningful argument to the contrary, Razzak’s Title VII claims do not clearly and unmistakably

fall within the second definition of “grievance.”

Whether the first definition covers those claims is a more complicated question. But the

clear-and-unmistakable standard tips the scales in Razzak’s favor here too. The CBA explains that

a grievance means a violation or misinterpretation “of any provision of this Agreement”—not of

6 federal statutes generally or Title VII specifically. CBA § 5.1 (emphasis added). So while the

“arbitration provisions do contain general grievance procedures,” they “define ‘grievances’ as dis-

putes or concerns arising out of . . . the CBA[]” itself and “do not mention the employees’ statutory

claims.” Manning,

. Another provision also underscores the focus on contractual

claims by requiring that “[a]ll grievances . . . set forth . . . the provisions of the Agreement alleged

to have been violated.” CBA § 5.3 (emphasis added). And the penalty for not complying with

this rule is steep: the grievance “shall be deemed waived.” Id. That makes sense for a mandatory

grievance procedure designed to resolve contractual claims based on CBA violations because Ex-

calibur would want to know what parts of the contract the employee thinks were violated. But

these provisions do not include a similar requirement for any statutes that were allegedly violated.

At bottom, Article 5 repeatedly references contractual claims without “mention[ing] statutory

claims.” Nealy v. Shelly & Sands, Inc.,

, 882 (6th Cir. 2021). So its provisions

do not unmistakably waive Razzak’s right to a judicial forum for his Title VII claims. See, e.g.,

Ibarra, 695 F.3d at 356–57 (Title VII claims not subject to grievance procedure covering “any

controversy, complaint, misunderstanding or dispute arising as to interpretation, application or

observance of any of the provisions of this Agreement”); Cloutier, 996 F.3d at 436 (statutory

claims not subject to grievance procedure covering “dispute[s] between the parties arising under

the terms of this Agreement”).

No matter, says Excalibur, because the CBA’s general anti-discrimination provision picks

up the slack, in part by incorporating Title VII into the CBA. Section 1.6, which does not reference

the grievance procedure or arbitration, states that “[t]he parties agree that there will be no discrim-

ination against any employee . . . because of” several protected characteristics, including “reli-

gion.” That provision further obligates Excalibur to “comply with all federal and state (where

7 applicable) employment discrimination laws, which are incorporated herein in their entirety.”

CBA § 1.6.

This anti-discrimination language in the CBA, even paired with the grievance provisions,

does not clearly and unmistakably waive a judicial forum for Razzak’s statutory Title VII claims.

To start, courts often hold that anti-discrimination clauses are not enough to meet this standard.

Anti-discrimination language that merely “reference[s] statutory law” may “define the discrimi-

nation that is prohibited,” but it does “not” specify “the type of dispute (statutory rather than just

contractual) that is subject to arbitration.” Lawrence,

. That is, a collective-bar-

gaining agreement may use phrases such as “in violation of any federal or state law” to establish

the contours of a contractual right to be free from discrimination. Ibarra,

. But

that drafting choice is not, standing alone, an “express waiver of a judicial forum” for statutory

claims, particularly when—as here—the anti-discrimination provision “mentions no specific fed-

eral or state statutes and makes no reference to the grievance procedures set forth” in a different

part of the bargaining agreement. Id.; see also Nealy, 852 F. App’x at 882 (explaining that “[t]he

presence of an antidiscrimination clause, on its own, did not require . . . arbitrat[ion of] statutory

claims” when neither the arbitration clause nor the anti-discrimination clause “refer[red]” to the

other). “Simply put, including a provision in a collective bargaining agreement that prevents dis-

crimination against employees under a federal statute is not the same as requiring union members

to arbitrate such statutory claims.” Bratten v. SSI Servs., Inc.,

, 631–32 (6th Cir.

1999) (internal quotation marks and citation omitted).

Excalibur argues that this anti-discrimination clause does more than many others because

it includes a provision expressly incorporating “all federal and state (where applicable) employ-

ment discrimination laws.” CBA § 1.6; see also ECF No. 10 at 4–5. For support, it points to

8 Singletary v. Enersys, Inc., where the Fourth Circuit said that an “additional provision[] mandating

‘explicit incorporation of statutory anti-discrimination requirements’” can “make[] it unmistakably

clear” that an arbitration clause covers claims arising under the “discrimination statutes at issue.”

(4th Cir. 2003) (citation omitted). That case and others like it draw on the

Supreme Court’s observation that the disputed collective-bargaining agreement in Wright “con-

tain[ed] no” such “explicit incorporation.”

. Although Excalibur does not expressly

lay out this reasoning, the idea seems to be that the incorporation clause makes certain statutes part

of the CBA, meaning that any violation of those laws is also a violation of the CBA subject to the

mandatory grievance-and-arbitration process.

This argument has surface-level appeal. But whether a bargaining agreement contains an

incorporation clause does not necessarily answer the key question: does the agreement clearly and

unmistakably require an employee to bring statutory claims through a grievance procedure rather

than in court? No doubt, the incorporation of statutory law may help an agreement meet this

“exacting standard.” Lawrence,

. Indeed, the Supreme Court’s acknowledgment

that the bargaining agreement in Wright did not explicitly incorporate anti-discrimination statutes

suggests that a “clear and unmistakable incorporation” may contribute to the clarity of an arbitra-

tion requirement. 525 U.S. at 80–81. But that was not all the Court said on this score in Wright.

It also explained that “[e]ven if” a provision of a collective-bargaining agreement “incorporate[s]”

statutory law “by reference,” that incorporation merely “create[s] a contractual right that is coex-

tensive with the federal statutory right.” Id. at 79 (emphasis added). Thus, the Court at least

implied, more is needed for an agreement to clearly and unmistakably subject a statutory claim to

arbitration. Two reasons caution against reading Wright as standing for the hard-and-fast rule that

any incorporation of statutory law satisfies the clear-and-unmistakable standard.

9 First, the inquiry turns on the clarity of the arbitration requirement as to “both statutory and

contractual . . . claims,” 14 Penn Plaza,

, not on incorporation alone stripped of its

context. “[T]he north star of [the] analysis is whether the waiver” of a judicial forum “is ‘clear

and unmistakable.’” Cloutier, 996 F.3d at 438. In this way, “Wright requires nothing more than

what it says” and permits nothing less; it does not “prescribe any bright-line approach” or focus

on “magic words.” Darrington v. Milton Hershey Sch.,

(3d Cir. 2020). While

Darrington found the contractual waiver in that case to be clear and unmistakable, the flip side of

the Third Circuit’s reasoning there is that Wright does not bless a bargaining agreement’s waiver

just because the agreement uses the “magic words” of incorporation. What matters is whether the

“agreement, interpreted according to applicable contract-interpretation principles, clearly and un-

mistakably waives a judicial forum for statutory claims.”

And nothing about this CBA’s in-

corporation of “federal and state . . . employment discrimination laws”—in a section separate from

the grievance provisions—inherently meets that demanding standard. CBA § 1.6.

Second, as the Court in Wright recognized, statutory and contractual claims are different

even when their contours overlap. When a plaintiff brings a statutory claim, after all, “[t]he cause

of action [he] asserts arises not out of contract, but out of the [statute], and is distinct from any

right conferred by the collective-bargaining agreement.” Wright,

(emphasis added).

So it is not enough to “mak[e] the nondiscrimination rights guaranteed by the CBA coterminous

with those under federal and state law.” Ibarra,

. As Wright explains, incorporat-

ing a statute “by reference” may “creat[e] a contractual right that is coextensive with the federal

statutory right,” but that does not “alter[]” the “statutory (as opposed to contractual) focus of [a

plaintiff’s] claim.”

. An employee like Razzak still “has statutory as well as con-

tractual rights.” Vega,

. And there is a “distinction between those categories of

10 rights vis-à-vis his obligation to resort to the grievance procedure,”

unless the bargaining agree-

ment clearly and unmistakably subjects both sets of claims to that procedure. As a result, “the

decision to arbitrate an employee’s contractual claim by itself neither waives nor precludes sub-

sequent litigation of statutory claims arising out of the same underlying facts.” Mathews,

. Put another way, because “a contractual dispute is not the same thing as a statutory claim,

even if the issues involved are coextensive,” Lawrence,

, it is a “logical jump” to

conclude that a “CBA cover[s] statutory claims” just because “the parties acknowledged that vio-

lations of statutory law would also constitute violations of the contract,” Mathews,

(reversing district court for making such a leap).

The upshot is that, at a minimum, a clause incorporating statutes and saying that an em-

ployer agrees to comply with them—as this CBA does, see § 1.6—provides an employee with a

contractual claim he would not otherwise possess. But that incorporation, without more, does not

necessarily mean that the employee’s statutory claims are merged with the contractual claims for

purposes of the agreement’s grievance provisions. Rather, “contractual rights under a collective-

bargaining agreement and the statutory right provided by Congress under Title VII ‘have legally

independent origins and are equally available to the aggrieved employee.’” Int’l Union of Elec.,

Radio & Mach. Workers v. Robbins & Myers, Inc.,

(1976) (citation omitted).

So even when a bargaining agreement makes the “contractual guarantees against discrimination

precisely coterminous with those given in federal law,” covered employees still “hold two similar

claims[:] one based in statute, and one based in contract.” Mathews,

.

Given all the above, the incorporation language and the grievance provisions in this CBA

do not clearly and unmistakably subject Razzak’s statutory claims to the mandatory grievance

procedure. True, the incorporation of employment-discrimination laws may mean that a claimed

11 violation of Title VII will often provide the basis for a claimed violation of “th[e] Agreement” too.

CBA § 1.6. But as explained, those claims—and the rights they seek to vindicate—remain distinct.

And the grievance provisions here “could be interpreted to” apply to “disputes under the CBA and

not claims under antidiscrimination statutes.” Lawrence,

. After all, the mandatory

grievance procedure covers “claimed violations . . . of this Agreement,” CBA § 5.1 (emphasis

added), but never mentions violations of or claims “under statutes,” Lawrence,

(emphasis added) (explaining that a non-discrimination provision’s reference to “disputes under

this provision” did not “suggest that statutory discrimination claims . . . are subject to arbitration”).

Plus, the grievance process requires employees to identify the “provisions of the Agreement al-

leged to have been violated” without saying anything about allegedly violated statutes. CBA § 5.3.

Perhaps one reading of the CBA is that these references to contractual violations could be con-

strued to somehow cover statutory violations too. But the CBA could also be read to not include

them. Thus, the Court can hardly conclude that it clearly and unmistakably subjects them to arbi-

tration.

Indeed, Excalibur has cited no case holding that an incorporation clause required arbitra-

tion of statutory claims without more language specifically subjecting those claims to arbitration.

To the contrary, the cases it relies on show what is lacking here but what would render the CBA

clear and unmistakable on that point: an explicit nexus between claims arising under the incorpo-

rated statutes and the arbitration requirement. Its main case, Singletary, involved a bargaining

agreement with a non-discrimination provision stating that “[a]ny and all claims . . . under any

federal or state employment law shall be exclusively addressed . . . under the grievance and arbi-

tration provisions of this Agreement.”

. And that is precisely the language that

the Fourth Circuit emphasized when finding a clear and unmistakable waiver. See

. The

12 agreement in Aleman v. Chugag Support Services, Inc. was even more specific when defining the

claims subject to “binding arbitration”: “a grievance shall include any claim by an employee that

he has been subjected to discrimination under Title VII” or other anti-discrimination laws.

, 209, 216 (4th Cir. 2007). And in 14 Penn Plaza, the Supreme Court dealt with an

agreement specifying that “[a]ll such claims” under enumerated statutes, including Title VII, “shall

be subject to the grievance and arbitration procedure (Articles V and VI) as the sole and exclusive

remedy for violations.”

.

In none of these cases, then, did an incorporation clause like the one here salvage an oth-

erwise inadequate waiver by itself. Instead, the bargaining agreements connected the incorporated

statutes to the mandatory grievance-and-arbitration procedures and subjected claims arising under

the laws to those procedures. But for all the reasons discussed, this CBA lacks such a connection.

The anti-discrimination provision never references the grievance procedure, and the grievance pro-

visions themselves focus on violations of the agreement rather than statutes. And although this

incorporation clause might mean that violations of some statutes are also violations of the CBA,

that convergence shows only that the “contractual rights and statutory rights [are] coterminous,”

not that the latter rights are clearly and unmistakably subject to the mandatory grievance procedure.

Mathews,

.

These may be fine distinctions. But the clear-and-unmistakable standard calls for this line-

drawing because “the right to a federal judicial forum is of sufficient importance to be protected

against less-than-explicit union waiver in a CBA.” Wright,

. Against that backdrop,

“[i]t is neither unattainable nor unreasonable to expect parties to a collective bargaining agreement

to clearly state those statutory claims that they intend to confine to arbitration.” Cloutier, 996 F.3d

at 437. Because Excalibur and the union did not do so here for Title VII claims, the courthouse

13 doors remain open to Razzak.

IV. Conclusion and Order

For all the above reasons, it is hereby ORDERED that Defendant’s Motion to Dismiss and

Compel Arbitration, ECF No. 8, is DENIED.

SO ORDERED.

/s/ Timothy J. Kelly TIMOTHY J. KELLY United States District Judge Date: December 17, 2024

14