                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA



 MICHELLE FERGUSON,

           Plaintiff,
                  v.                                       Civil Action No. 08-1030 (JDB)
 LOCAL 689, AMALGAMATED
 TRANSIT UNION, et al.,

           Defendants


                                             ORDER

       The Court will not repeat in full the facts animating this action. See Ferguson v. Local

689, Amalgamated Transit Union, 626 F. Supp. 2d 55, 57-58 (D.D.C. 2009). Remaining in the

case are two claims asserted against Local 689, Amalgamated Transit Union, and three of its

employees in their official capacities (together "Local 689"): a "hybrid § 301/breach of the duty

of fair representation claim" and a claim for intentional infliction of emotional distress. See

Ferguson, 626 F. Supp. 2d at 63.1 The parties have cross-moved for summary judgment only on

the former claim.

       The parties agree that for Ferguson to prevail on her hybrid claim, she must demonstrate

two things: that her discharge by WMATA violated WMATA's collective bargaining agreement

with Local 689, and that Local 689 breached its duty of fair representation to Ferguson. See

Defs.' Mem. in Supp. of Mot. for Summ. J. ("Defs.' Mem.") [Docket Entry 37], at 9-10; Pl.'s

Opp'n to Defs.' Mot. [Docket Entry 46], at 3; see also DelCostello v. Int'l Bhd. of Teamsters, 462


       1
        The Court previously dismissed Ferguson's claims against the Washington Metropolitan
Area Transit Authority ("WMATA"), and a claim for punitive damages against all defendants.
See Ferguson, 626 F. Supp. 2d at 57 n.1, 63.
U.S. 151, 165 (1983) ("'To prevail against either the company or the Union [on a hybrid claim]

. . . [employee-plaintiffs] must not only show that their discharge was contrary to the contract but

must also carry the burden of demonstrating breach of duty by the Union.'" (second alteration in

DelCostello) (quoting United Parcel Serv., Inc. v. Mitchell, 451 U.S. 56, 62 (1981))). Local 689

contends, however, that Ferguson cannot do so here. Because WMATA was dismissed from this

lawsuit, the argument goes, "it would be impossible for the Plaintiff to prevail against WMATA

[on the contract claim], and, consequently, equally impossible for her to prevail against the

Union alone." Defs.' Mem. at 10.

       This is incorrect. When asserting a hybrid claim, a plaintiff may choose to sue the

employer, the union, or both. But whatever his choice, "the case he must prove is the same."

DelCostello, 462 U.S. at 165. That is, even where the plaintiff brings a hybrid claim against a

single defendant, he still must prove both that his employer breached its collective bargaining

agreement, and that the union breached its duty of fair representation. Hence, it is of no moment

that WMATA is no longer a defendant in this suit -- Ferguson still may litigate her hybrid claim

against Local 689.2

       Because Local 689 concluded that WMATA's dismissal precluded Ferguson's hybrid

claim, Local 689 has not substantively addressed either element of that claim. Local 689

generally denies that it breached its duty of fair representation, but this perfunctory conclusion is

without evidentiary support. See Defs.' Reply in Supp. of Mot. [Docket Entry 55], at 2-3. And it


       2
         Dove v. Wash. Metro. Area Transit Auth., 402 F. Supp. 2d 91 (D.D.C. 2005), does not
aid Local 689. Contrary to Local 689's presentation of the case, Dove reserved the question
whether, in the context of a hybrid claim, a "plaintiff's dismissal with prejudice of all of his
claims against [a] union precludes him from asserting his . . . claim against WMATA." Dove,
402 F. Supp. 2d at 97 n.4.

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simply offers no analysis whether WMATA breached the collective bargaining agreement.

Although Local 689 could prevail on Ferguson's hybrid claim by demonstrating either that it did

not breach its duty of fair representation, its conclusory arguments do not carry its burden on this

issue. Hence, on the current record, the Court cannot grant summary judgment for Local 689.

       Nor, given Local 689's failure to address Ferguson's substantive arguments, will the Court

grant Ferguson's motion for summary judgment. The interests of both justice and judicial

economy are served by permitting the parties a further opportunity to brief the merits of

Ferguson's hybrid claim. The parties also may address Ferguson's intentional infliction of

emotional distress claim in that briefing. Although the Court will deny the pending summary

judgment motions, it nevertheless will consider the arguments raised therein when resolving any

"renewed" motions for summary judgment. Accordingly, it is hereby

       ORDERED that [36][37] the parties' cross-motions for summary judgment are DENIED

without prejudice; and it is further

       ORDERED as follows:

       1.      Local 689 may file a "renewed" motion for summary judgment addressing the

               merits of Ferguson's hybrid claim and the intentional infliction of

               emotional distress claim by not later than June 23, 2010.

       2.      Ferguson may file a cross-motion for summary judgment on her hybrid claim

               and her intentional infliction of emotional distress claim, and an opposition to

               Local 689's motion by not later than July 14, 2010.

       3.      Local 689 may file an opposition to Ferguson's cross-motion, and a reply in

               support of its motion for summary judgment, if any, by not later than July 28,


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              2010.

       4.     Ferguson may file a reply in support of her cross-motion for summary judgment

              by not later than August 11, 2010.

       SO ORDERED.
                                           /s/ John D. Bates
                                           John D. Bates
                                           United States District Judge

Date: June 3, 2010




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