                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA



 FELICIA WALKER,

         Plaintiff,

                 v.                                       Civil Action No. 15-1005 (JDB)
 MASTER SECURITY COMPANY LLC,

         Defendant.


                                 MEMORANDUM OPINION

       Plaintiff Felicia Walker sued her former employer, Master Security Company LLC, in D.C.

Superior Court under the D.C. Human Rights Act (DCHRA). Am. Compl. [ECF No. 9]. Master

Security promptly removed to this Court, claiming that federal jurisdiction existed pursuant to

Section 301 of the Labor Management Relations Act (LMRA). Pending before the Court are

Master Security’s motion to dismiss and Walker’s motion to remand to Superior Court. This Court

will grant Walker’s motion to remand.

                                        BACKGROUND

       Walker’s complaint alleges that after she accepted a temporary placement at a new Master

Security work site in January 2014, she was subjected to sexual harassment, retaliation for internal

complaints, retaliation for filing an Equal Opportunity Commission (EEOC) charge, and a hostile

work environment, all in violation of the DCHRA. Master Security removed to this Court on the

ground that this Court has jurisdiction pursuant to Section 301 of the LMRA, 29 U.S.C. § 185.

Def.’s Notice of Removal [ECF No. 1] ¶ 10. The notice of removal claimed that when Walker

began working at the temporary work site, she became party to a collective bargaining agreement


                                                 1
(CBA) between a union and Master Security. Id. ¶¶ 6–7. According to Master Security, the CBA

requires union members like Walker to initiate any grievances internally. Id. ¶ 8. Because Walker

failed to follow the grievance procedures, Master Security contends that she breached the CBA.

Id. ¶ 9. Master Security then filed a motion to dismiss, arguing that Walker’s complaint should be

dismissed “due to her failure to exhaust administrative remedies and submit her statutory claims

to the mandatory grievance and arbitration procedure set forth in the collective bargaining

agreement which governed her terms and conditions of employment.” Def.’s First Mot. Dismiss

[ECF No. 7] at 2–3.

        Walker responded by filing an amended complaint. While her claims are still grounded

exclusively in D.C. law, Walker has amended the complaint’s “facts” section to state that she was

not a permanent employee and was therefore not subject to the CBA. Am. Compl. ¶¶ 44–67.

Master Security then filed a second motion to dismiss counts one and two on the ground that the

claims are barred by the statute of limitations. Def.’s Second Mot. Dismiss [ECF No. 13]. Absent

from the new motion is any argument about union grievance procedures. Walker moved to

remand, noting that “it appears that [Master Security] has abandoned the sole reason this Court

would exercise jurisdiction over this matter.” Pl.’s Mot. Remand [ECF No. 15-1] at 1.

                                                DISCUSSION

        Removal of cases from state to federal court is governed by 28 U.S.C. § 1441. 1 A party

may remove a case to federal court only when the case could have been filed in federal court

originally. Wexler v. United Air Lines, Inc., 496 F. Supp. 2d 150, 152 (D.D.C. 2007); see also

Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). “The party opposing a motion to remand

bears the burden of establishing that subject matter jurisdiction exists in federal court.” Int’l Union


        1
          For removal purposes, the term “state court” includes the Superior Court of the District of Columbia. See
28 U.S.C. § 1451.

                                                        2
of Bricklayers & Allied Craftworkers v. Ins. Co. of the W., 366 F. Supp. 2d 33, 36 (D.D.C. 2005).

Where “a district court lacks subject matter jurisdiction over a case that has been removed from a

state court, the district court must remand the case.” Republic of Venez. v. Philip Morris Inc., 287

F.3d 192, 196 (D.C. Cir. 2002) (citing 28 U.S.C. § 1447(c)). And “[w]here the need to remand is

not self-evident, the court must resolve any ambiguities concerning the propriety of removal in

favor of remand.” Johnson-Brown v. 2200 M St. LLC, 257 F. Supp. 2d 175, 177 (D.D.C. 2003).

        Master Security says that this case could have originally been brought in this Court under

Section 301 of the LMRA, which provides:

               Suits for violation of contracts between an employer and a labor
               organization representing employees in an industry affecting
               commerce as defined in this chapter, or between any such labor
               organizations, may be brought in any district court of the United
               States having jurisdiction of the parties, without respect to the
               amount in controversy or without regard to the citizenship of the
               parties.

29 U.S.C. § 185(a). The Supreme Court has interpreted this provision to have a completely

preemptive effect, meaning that a state law claim that is “founded directly on rights created by

collective-bargaining agreements” or “substantially dependent on analysis of a collective-

bargaining agreement” necessarily arises under federal law. Caterpillar, 482 U.S. at 394 (internal

quotation marks omitted).

       Accordingly, Master Security argues that because Walker’s state-law claims are dependent

on the Court’s interpretation of a CBA, complete preemption applies and Walker’s complaint gives

rise to federal jurisdiction.    But Master Security misunderstands the power of complete

preemption. It is only through defendant’s allusion to a CBA-related defense in its removal notice

that the labor contract was brought into question. And the Supreme Court has made perfectly clear

that this is not enough for federal jurisdiction: “[T]he presence of a federal question, even a § 301



                                                 3
question, in a defensive argument does not overcome the paramount policies embodied in the well-

pleaded complaint rule—that the plaintiff is the master of the complaint, that a federal question

must appear on the face of the complaint, and that the plaintiff may, by eschewing claims based

on federal law, choose to have the cause heard in state court.” Id. at 398–99; see also Price v.

Goals Coal Co., No. 97-1710, 1998 WL 536371, at *8 (4th Cir. 1998) (per curiam) (unpublished)

(“The ‘complete preemption exception’ to the ‘well-pleaded complaint’ rule does not apply when

the employer merely raises the collective bargaining agreement as a defense to the state law

claim.”); Van Allen v. Bell Atl.-Wash., D.C., Inc., 921 F. Supp. 830, 833 (D.D.C. 1996) (holding

defendants could not remove case “by raising the collective bargaining agreement” in an asserted

defense). Thus, the mere possibility that Master Security could raise a defense that would require

interpretation of a CBA would not have allowed Walker to file her complaint in federal court

originally. 2

         But what about Walker’s amended complaint? Do its new factual allegations, by referring

to the express terms of the CBA, give rise to federal jurisdiction?           No. Walker’s new factual

allegations merely anticipate a defense that Master Security might raise. Just as federal jurisdiction

does not exist where “the plaintiff alleges some anticipated defense to his cause of action and

asserts that the defense is invalidated by some provision of the Constitution of the United States,”

Beneficial Nat. Bank v. Anderson, 539 U.S. 1, 6 (2003) (internal quotation marks omitted), so too




         2 The Court acknowledges that another court in this District recently reached the opposite
conclusion, allowing removal based in part on the defendants’ asserted defense that a labor contract required
the plaintiff to exhaust arbitration procedures before bringing suit. Dist. No. 1, Pac. Coast Dist., Marine
Eng’s’ Beneficial Ass’n v. Am. Mar. Officers, 75 F. Supp. 3d 294, 303 (D.D.C. 2014) (“[I]t is well
established that any state law claim or defense that requires interpretation of federal labor contracts . . .
implicates the preemptive effect of section 301 of the LMRA.” (emphasis added)). That decision, however,
did not grapple with Caterpillar or cite authority to support its conclusion that federal subject matter
jurisdiction exists so long as a defense requires interpretation of a union contract. See id. at 301–05.


                                                     4
is it lacking here, where Walker has merely sought to undermine a possible federal-law defense to

her state-law causes of action.

        Master Security has offered no other argument for how Walker’s sexual harassment, hostile

work environment, and retaliation claims implicate the CBA. Cf. Berry v. Coastal Int’l Sec., Inc.,

968 F. Supp. 2d 104, 111 (D.D.C. 2013) (holding that plaintiff’s state-law age discrimination claim

is preempted under Section 301 where “plaintiff specifically alleges that the challenged

employment actions were taken in violation of rights created by the CBA”). And none are readily

apparent to the Court. Rather, Walker’s “DCHRA claims are based on rights created by the

DCHRA and not rights created by the CBA.” Daniels v. Potomac Elec. Power Co., 789 F. Supp.

2d 161, 165 (D.D.C. 2011) (granting plaintiff’s motion to remand DCHRA claims to state court).

                 When a plaintiff invokes a right created by a collective-bargaining
                 agreement, the plaintiff has chosen to plead what we have held must
                 be regarded as a federal claim, and removal is at the defendant’s
                 option. But a defendant cannot, merely by injecting a federal
                 question into an action that asserts what is plainly a state-law claim,
                 transform the action into one arising under federal law, thereby
                 selecting the forum in which the claim shall be litigated.

Caterpillar Inc., 482 U.S. at 399. Walker has not invoked a right created by, nor dependent on an

interpretation of, the CBA. Master Security cannot then force its way into federal court by

asserting a CBA-related defense. Accordingly, the Court will grant Walker’s motion to remand. 3

A separate order has been issued on this date.



                                                                              /s/
                                                                      JOHN D. BATES
                                                                 United States District Judge
Dated: February 10, 2016


        3
          Having remanded the case to D.C. Superior Court, this Court will not address Master Security’s pending
motion to dismiss.

                                                       5
