UNITED STATES DISTRICT COURT
FOR THE DISTRICT _OF COLUMBIA

 

 

 

TONY ]). PARKSJ

Plaintif’f,

V` l Case No_ l:l7-cv-00825~TNM
GIANT OF MARYLAND, LLC,

Def`endant.

 

Tony D. Parks was formerly employed at various grocery stores owned by Giant of
. Mary'land,l LLC. VOn April 3, 2017, he brought a pro se suit against Giant in D.C_ Superior Court,
alleging that alter being promoted he “was not given the proper raise,’7 and after he filed a
“retaliation suit” he Was “threaten[ed] by a manager[,] transferred and written up then
terminated.” Notice ofRemoval, Ex. Aat 7 (hereinatter Cornplaint). 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 ofMot. Dismiss 5-9 (Mot. Dismiss). For the reasons that
follow, l 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 fhim].

[He] was commended and promoted for [his] good work but was not given the proper raise.” _Id.

 

Mr. Parks “complained to H.R.” but F‘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] reli_gion».” 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
occasion[s] 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 n
allegations and claimed that “[a]s for the Union they are i_n 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 cstate a claim to relief that is plausible on its face.”’ Ashcroft v. ]qbal, 556
U.S. 662, 678 (2069) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim

crosses from conceivable to plausible when it contains factual allegations t_hat, 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). In this inquiry, a court must “draw all reasonable

'inferences.f`rorn those allegations in the plaintiff" s favor.” _ Id.

 

l[I. 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 l
conclude that the latter course is clearly appropriate here, in light of Mr_ Parks’ pro se status and
the applicablecase 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_ Sl. Francr's Xavr`er
Parochial Sch.-, 117 F.3d 621, 624 (D.¢. 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 dra_Hed by lawyers_”’ Erickson v. Pardus, 551 U.S. 89,
94 (2007) (queiing asceer v. camera 429 U.s_ 97, 106 (1976)). owns may “consider
supplemental material filed by a pro se litigant in order to clarify the precise claims being
urged.” Greenhil! v. Spellr`ngs, 482 F_3d 569, 572 (D.C. Cir. 2007). In at least two n
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 Foodsll/Ikt. Grp., Ii'zc., 789 F_3d l46, 152 (D.C_ Cir. 2015)
(quoting Rz`chardson v. Unitea' Srates, l93 F.3d 545, 548 (D.C.Cir. 1999)). Both Br`Own-and
Richarcison 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_pr__ejudic_e. See Res_p_onse_ [Dkt. #_ 12] _l-_7. Accordingly, _I will consider the

 

complaint’s allegations that Mr. Park_s was inappropriately denied a raise and subjected to
retaliation for filing suit, as well as the additional allegations raised in his subsequent filings1

B. Plaintiff’s Pay Claims Survive

' The first claims at issue are Mr. Park’s claims that he was “denied [his] promotional
raise,i’ 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 Plaintifi" s employment.” Mot. Dismiss l. 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 Actl § 301 claim or dismissed as pre-empted by federal labor-

\ contract law.” Allz's-Chalmcrs Corp. v.-Lueck, 471 U.S. 202, 211 (1985)', Lingle v. Norge Dl`v. of
Magr`c Chef Inc., 486 U.S. 3§9, 399-400 (`1988) (“If the resolution of a state law claim depends
uponthe 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. Parl<s’ claims as invoking Section
3017 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 arbitrationremedies and/or he

 

1 Although Mr. Parks stretches the issue by filing not only an opposition, but alsoan “Amended
Response” that I deem a sur-reply, “[t]he decision to grant or deny leave to file a sur-reply is
committed to the sound discretion of the Court_” Lu v. Lezell, 45 F. Supp. 3d 86, 91 (D.D.C. 4
2014). Furthermore, “leave to amend a complaint ‘shall be freely given when justice so
requires,”’ Moore v. Agencyfr)r Inr’l Dev., 994 F.2d 874, 877 (D__C_ Cir. 1993) (quoting Wyam v. _
.Crirz“enden, 113 F.Zd 170, 175 (D.C. Cir. 1940), aprinciple “particularly appropriate when the

_ party Seeking to amend is permitted to proceed in forma pauperis and, because of` his
circumstances does so without benefit of counsel." fnl While Giant contends that any
amendment would be filtile, Response 1-5, I_disagree for the reasons that follow.

4 .

 

alleges his union breached its duty of fair representation.” Mot_ Dismiss 6; UnitedPaperwor/rers
Im"l Union, AFL-CIO v. Misco, Inc., 484 U.S. 29,'37 (l987) (“courts have jurisdiction to enforce
collective-bargaining contracts; but where the contract provides grievanceand 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 DelCosrello v. Int'l Bhd.
cf Teamsters, 462 U.S. 151, 164-5 (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 j
terms, and Mr. Parks himself makessome 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
l liberally as l 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
l 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[,l then terminated.” Compl. 1', see
also Opp. l-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 Bla'g. Trades Cozmcz'l v. Garmon, 359 U.S. 236, 245 (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,” Wz`lliam E. Amo!d Co. v. Carpenters
Dist. Councl`l, 417 U.S. 12, 16 (1974), or is “primarily contractual” rather than “primarily
representational” in nature, Dist. No. l, Pac. Coast Dist., Marine Engineers'Ber/ieficl`al Ass'n,
AFL-CIO v. Liberty-Mar. Corp., 815 F.Sd 834, 840-41 (D.C. Cir. 2916), the retaliation claims in
this case fall squarely within the NLRA’s protections n z
Section 7 of the National Labor Relations Act (NLRA) preserves employees’ rights “to
self-organization, to form, join, or assist labor organizationsJ to bargain collectively through
' representatives of their own choosing, and to engage in the other concerted activities for the
purpose of collective bargaining or other mutual aid or lprote,ction.” 29 U.S.C. § 157. Section 8,
in turn, makes it “an unfair labor practice for an employer . . . to interfere with, restrain, or n
coerce employees in the exercise of the rights guaranteed in [Section 7],” or “ro discharge or
' otherwise discriminate against an employee because he has filed charges or given testimony
under this subchapter.” 29 U.S.C. § 158(a)(1), (a)(4) (ernphasis added). Section 8’s prohibition
on retaliation because an employee c-‘has filed charges . under this subchapter” clearly applies
to Mr. Parks’ case', 29 U.S_C. § 158(a)(4), and Section 7 likely applies too_ “Invoking a
.grievance_procedure pursuant to a collective bargaining agreement is clearly a protected § 7

right, albeit a derivative right, because the collective bargaining agreement is the result of

 

concerted activities by the employees for their mutual aid and protection.” Keokuk Gas Serv. Co. _
v. N.L. R. B. 580 F 2d 328 333 (8th Cir_1978) (internal quotation marks and citation omitted). 2
I therefore find that Mr. Parks retaliation claims are subject to the exclusive jurisdiction

of the NLRB under Garmon preemption, and I will thus “defer to the exclusive competence of
the National Labor Relations Board” on these questions Garmon, 359 U.S. at 245.
D. Plaintiff"s Religious Discrimination Claim Fails to State a Claim

' As for Mr. Parks’ fleeting allegations of religious discrimination7 he has failed to plead
l sufficient facts from which I could infer liability, to the extent he intends to raise this as a claim
at all. Mr. Parks only mentions this allegation in passing,7 saying that Giant “stalted . . . not
letting [him] practice [his] religion in which [sic] [he] filed an EEOC claim,” Opp. 2, and that he
“was . . . denied the opportunity to`attend church.” Am. Response 2. Although a pro se
complaint is “held to less stringent standards,” the plaintiff still “must plead ‘factual matter’ that
_ permits the court to infer ‘more than the mere possibility of misconduct.”’ Atherron vi D.C.
Oyj‘ice ofMayor, 567 F.3d 672, 681-82 (D_C_ Cir. 2009) (quoting Iqbal, 556 U.S. 679). Thus, a l
complaint containing only “[t]hreadbare recitals of the elements of a cause of action, supported
by mere conclusory statements” cannot withstand a motion to dismiss Iqbal, 556 U.S. at 678-
79. With nothing but conclusions about what occurred fact-ually, Mr. Park’s religious

discrimination allegations fail to state a claim_3

 

2 Indeed, another judge in this district recently reached`the same conclusion in a similar case that
also featured Giant as a defendant See Jackson v. Teamsters Local Union 922, 991 F. Supp. 2d
'71, 79 (D_D_C_ 2014) (Boasberg, J_) (“This claim alleges that ‘Plaintiffs filed a grievance . . . and

that ‘because Plaintiffs had filed their grievances and engaged in protected activity, Giant
refused. to recall and/or rehire [them].’ Arn. Compl 1111 230 233 . Plaintif`fs’ retaliation
_ _ claim is preempted by the NLRA ”) .

3 Mr. Parks’ filings contain other cursory allegations of physical danger, (e.g., “They started
putting my life in danger . .‘. l had to go to the doctor due to being asked to stand in front of a
bail,” Opp. 2), and of other wrongs such as not being allowed to attend his foster son’s funeral

7

 

IV. Conclusion
For these reasons, the Def`end`ant’s Motion to Dismiss will be denied as to Mr. Parks’_
claims regarding his pay, but granted as to Mr. Parks’ claims of retaliation and religious

discrimination A separate order will issue.

 

Dated: February 15, 2018 ' rREvoR N MCFADDEN
United States District ludge

 

Id. 'l`o the extent that l\/[r. Parks alleges that Giant’s actions were retaliatory, those claims are
subject to the NLRB’ s exclusive jurisdiction, as discussed in section IIIC To the extent that they

are stand»alone claims Mr Parks has failed to plead sufficient factual matter from which l might
infer liability. -

