                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA
____________________________________
                                    )
THEODORE BERRY                      )
                                    )
                  Plaintiff,        )
                                    )
      v.                            )               Civil Action No. 12-01420 (ABJ)
                                    )
COASTAL INTERNATIONAL               )
SECURIT, INC.                       )
                                    )
                  Defendant.        )
____________________________________)


                                 MEMORANDUM OPINION

       Plaintiff Theodore Berry brought this action against his employer, Coastal International

Security, Inc., in the Superior Court of the District of Columbia, alleging age discrimination and

retaliation in violation of the District of Columbia Human Rights Act (“DCHRA”), D.C. Stat.

§ 14-201.11. After removing the case to this Court, defendant moved to dismiss the complaint

under Federal Rule of Civil Procedure 12(b)(6) and Local Civil Rule 7(a) on the grounds that

plaintiff’s claims are preempted by section 301 of the Labor Management Relations Act

(“LMRA”), 29 U.S.C. § 185.

       After a review of the pleadings, the Court concludes that plaintiff’s age discrimination

claim is preempted by section 301 because it is founded upon rights created by the CBA. But the

Court finds that plaintiff’s retaliation claim is not preempted by section 301 because it is

independent of the CBA. Therefore, the Court will grant defendant’s motion with respect to the

age discrimination claim and deny the motion with respect to the retaliation claim.
                                        BACKGROUND

       The following facts are taken from the complaint and are undisputed for the purposes of

this motion. See Mem. in Supp. of Def.’s Mot. to Dismiss (“Def.’s Mem.”) [Dkt. # 2-1] at 2 n.1.

Plaintiff Theodore Berry is employed by defendant Coastal International Security, Inc.

(“Coastal”) as a security officer at the Ronald Regan Building and International Trade Center

(“RRB”) in Washington, D.C. Compl., Ex. A to Notice of Removal [Dkt. # 1-2] ¶ 13. Plaintiff’s

employment with defendant is governed by a collective bargaining agreement (“CBA”) between

defendant and his union.      See Compl. ¶¶ 31, 60; see also Agreement Between Coastal

International Security, Inc. and the International Union, Security, Police and Fire Professionals

of America (SPFPA) and its Amalgamated Local 288, Ex. 1 to Def.’s Mot. to Dismiss (“CBA”)

[Dkt. # 2-2].1 According to the complaint, plaintiff – who began working at the Reagan building

before defendant received its contract to provide security services – has seniority over all of the

employees at RRB. Compl. ¶ 15.

       During the time period involved in the complaint, plaintiff was supervised by Gregory

Steele (his direct supervisor), Nkrumah Williams (the RRB contract manager), Lieutenant

Colonel Summers (a supervisor), and Frank Duran (the regional manager). Compl. ¶¶ 17, 20,

23, 37. Steele, Williams, and Summers are all in their forties. Compl. ¶¶ 18–24. Plaintiff was

sixty years old at the time of the events he describes. Compl. ¶ 11.


1       The Court can consider the CBA in resolving defendant’s motion to dismiss because the
document is referred to in the complaint and is therefore incorporated by reference. See, e.g.,
Compl. ¶¶ 31, 60; see also EEOC. v. Saint Francis Xavier Parochial Sch., 117 F.3d 621, 624
(D.C. Cir. 1997) (stating that on a motion to dismiss, the court may consider “any documents
attached to or incorporated in the complaint . . . .”); Hinton v. Corrections Corp. of Am., 624 F.
Supp. 2d 45, 46 (D.D.C. 2009) (stating that on a motion to dismiss, the court may consider “the
facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the
complaint, or documents upon which the plaintiff’s complaint necessarily relies even if the
document is produced not by the plaintiff in the complaint but by the defendant in a motion to
dismiss.”) (internal quotation marks and citations omitted).
                                                2
       Plaintiff alleges that in October of 2010, Summers threatened to terminate him. Compl.

¶ 23. Plaintiff then filed a complaint against Summers, but he was not informed of what action,

if any, defendant took against Summers based on that complaint. Compl. ¶¶ 26–27.

       In December of 2010, plaintiff applied for a shift supervisor position. Compl. ¶ 29. The

complaint notes that the CBA requires defendant to promote employees based on “rank and

seniority.” Compl. ¶ 31; see also CBA § 16.3. Plaintiff asserts that although he “was more

qualified for [the shift supervisor] position than any other applicant because he had rank and

seniority advantages over each person who applied for the position,” he was not selected.

Compl. ¶¶ 30, 32. According to plaintiff, three younger and less qualified men were chosen for

the position. Compl. ¶ 33. Plaintiff told his supervisors – Steele, Williams, and Duran – that he

believed that his non-selection was a result of age discrimination. Compl. ¶ 37. Steele allegedly

exacerbated plaintiff’s concerns about age discrimination by referring to him as a “grandpa

type.” Compl. ¶ 38.

       Ultimately, on April 18, 2011, plaintiff was promoted to shift supervisor under a 90-day

probationary period. Compl. ¶ 42. About a week after the 90-day probation period would have

ended, Steele told plaintiff that his probationary period would be ongoing for 120 days. Compl.

¶ 44. Plaintiff complains that this 120-day probationary period “was not agreed upon nor the

norm.” Id. Steele believed that plaintiff’s probationary period would end on August 26, 2011,

but according to plaintiff, his probationary period ended on August 18, 2011. Compl. ¶¶ 45–46.

       On August 23, 2011 – during the period when Steele was of the understanding that

plaintiff was still on probation – Steele issued four disciplinary Personnel Action Reports

(“PARs”) against plaintiff. Compl. ¶ 47. Steele then recommended that plaintiff be dismissed

based on the PARs. Compl. ¶ 59. Plaintiff asserts that Steele and Williams issued the PARs to



                                               3
prevent him from retaining his position as shift supervisor. Compl. ¶¶ 48, 58. He also alleges

that the recommended dismissal was contrary to the CBA’s “protocol for disciplinary

progression,” which includes a verbal warning, a written warning, a suspension, and then

dismissal. Compl. ¶ 60. Further, plaintiff contends that although the CBA requires defendant to

investigate a PAR, defendant failed to investigate plaintiff’s four PARs. Compl. ¶¶ 62–63; see

also CBA § 7.1. Plaintiff appealed Steele’s recommended dismissal on the grounds that it was

based on unlawful age discrimination. Compl. ¶ 64.          Plaintiff was allowed to remain in his

position as a shift supervisor, and he attributes that turn of events to his appeal. Compl. ¶ 65.

       On September 12, 2011, Steele gave plaintiff a three-day suspension notice based on his

PARs. Compl. ¶ 66. Plaintiff scheduled a meeting with Williams, the RRB contract manager, to

appeal the suspension notice, but the meeting was canceled and never rescheduled. Compl. ¶ 69.

He also alleges that no one was interviewed in relation to his suspension, and he never received

an “objective hearing” regarding his appeal.          Compl. ¶ 70.   Plaintiff served his three-day

suspension. Compl. ¶ 67.

       On June 29, 2012, plaintiff was suspended indefinitely without pay for responding to a

distress alarm instead of allowing another staff member to take a bathroom break. Compl. ¶ 74.

Plaintiff contends that he was required by protocol to investigate the distress call, and that the

staff member was not harmed by his decision. Compl. ¶¶ 75–76. According to plaintiff, the

suspension was in retaliation for his prior opposition to his supervisors’ attempt to dismiss him in

2011. Compl. ¶ 77.

       On July 13, 2012, plaintiff brought this action against Coastal in the Superior Court of the

District of Columbia. Compl. at 1. He asserted that defendant’s employees discriminated

against him on the basis of his age and retaliated against him for resisting their attempts to



                                                  4
terminate his employment in violation of the District of Columbia Human Rights Act

(“DCHRA”), D.C. Stat. § 14-201.11. Compl. ¶¶ 78–92. Defendant removed this action to this

Court pursuant to 28 U.S.C. §§ 1331, 1441(b), and 1446 on the grounds that plaintiff’s claims

are preempted by section 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. §

185. Notice of Removal [Dkt. # 1] ¶¶ 7, 11.

        Defendant then moved to dismiss plaintiff’s complaint with prejudice under Federal Rule

of Civil Procedure 12(b)(6) and Local Civil Rule 7(a). Def.’s Mot. to Dismiss [Dkt. # 2] at 1;

Def.’s Mem. at 1. Defendant contends that plaintiff’s age discrimination and retaliation claims

“undoubtedly require interpretation of the CBA” and, therefore, are preempted by section 301 of

the LMRA. Def.’s Mem. at 6. According to defendant, since plaintiff’s claims are preempted by

federal law, they fail to state a claim under the DCHRA and must be dismissed under Rule

12(b)(6). Def.’s Mem. at 7–8. Plaintiff opposes the motion and argues that his claims are not

preempted because they require “no construction or interpretation” of the CBA. Opp. to Mot. to

Dismiss (“Pl.’s Opp.”) [Dkt. # 4] at 1.

                                    STANDARD OF REVIEW

        “To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient

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

Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); accord Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007). In Iqbal, the Supreme Court reiterated the two principles

underlying its decision in Twombly: “First, the tenet that a court must accept as true all of the

allegations contained in a complaint is inapplicable to legal conclusions.” 556 U.S. at 678. And

“[s]econd, only a complaint that states a plausible claim for relief survives a motion to dismiss.”

Id. at 679.



                                                   5
        A claim is facially plausible when the pleaded factual content “allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678.

“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a

sheer possibility that a defendant has acted unlawfully.” Id. A pleading must offer more than

“labels and conclusions” or a “formulaic recitation of the elements of a cause of action,” id.,

quoting Twombly, 550 U.S. at 555, and “[t]hreadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.” Id.

        When considering a motion to dismiss under Rule 12(b)(6), the complaint is construed

liberally in plaintiff’s favor, and the Court should grant plaintiff “the benefit of all inferences that

can be derived from the facts alleged.” Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276

(D.C. Cir. 1994). Nevertheless, the Court need not accept inferences drawn by the plaintiff if

those inferences are unsupported by facts alleged in the complaint, nor must the Court accept

plaintiff’s legal conclusions. See id.; Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).

In ruling upon a motion to dismiss for failure to state a claim, a court may ordinarily consider

only “the facts alleged in the complaint, documents attached as exhibits or incorporated by

reference in the complaint, and matters about which the Court may take judicial notice.”

Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002) (citations omitted).

                                             ANALYSIS

        Section 301 of the Labor Management Relations Act (“LMRA”) 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.




                                                   6
29 U.S.C. § 185(a). The Supreme Court has stated that section 301 confers federal jurisdiction

over controversies involving collective bargaining agreements and “authorizes federal courts to

fashion a body of federal law for the enforcement of these collective-bargaining agreements.”

Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 403 (1988), quoting Textile Workers v.

Lincoln Mills, 353 U.S. 448, 451 (1957). Accordingly, section 301 completely preempts any

action predicated on state law if that action is either: (1) founded upon rights created by a

collective bargaining agreement; or (2) substantially dependent upon analysis of that agreement.

Lingle, 486 U.S. at 405, 410 n.10; Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220 (1985).2

       But not every dispute “tangentially involving a provision of a collective-bargaining

agreement[] is preempted by § 301 or other provisions of the federal labor law.” Allis-Chalmers,

471 U.S. at 211. “[A] plaintiff covered by a collective-bargaining agreement is permitted to

assert legal rights independent of that agreement, including state-law contract rights, so long as

the contract relied upon is not a collective-bargaining agreement.” Caterpillar v. Williams, 482

U.S. 386, 396 (1987).

       Here, defendant maintains that plaintiff’s age discrimination and retaliation claims are

preempted by section 301 and should be dismissed for failure to state a claim under the DCHRA

because those claims “are inextricably intertwined” with the CBA governing his employment.

Def.’s Mem. at 1–2. Plaintiff counters that defendant’s motion should be denied because his

case “involves no construction or interpretation of the collective bargaining agreement.” Pl.’s

Opp. at 1. But the preemption analysis involves more than just the question of whether it would



2       Section 301 also authorizes the removal to federal court of claims that purport to seek
relief only under state law. See Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 6–8 (2003)
(“When the federal statute completely pre-empts the state-law cause of action, a claim which
comes within the scope of that cause of action, even if pleaded in terms of state law, is in reality
based on federal law. This claim is then removable under 28 U.S.C. § 1441(b) . . . .”).
                                                 7
be necessary to interpret or construe the CBA to resolve plaintiff’s claims; the Court must ask:

what is the source of the right that the plaintiff is trying to vindicate? See Caterpillar, 482 U.S.

at 396. Accordingly, the Court finds that plaintiff’s age discrimination claim is preempted by

section 301 because it is expressly founded upon rights created by the CBA. However, the

retaliation claim seeks to vindicate rights that are independent of the CBA, and a resolution of

that claim would not involve the interpretation or application of the CBA, so it is not preempted.

Defendant’s motion to dismiss will therefore be granted in part and denied in part.

A. Plaintiff’s age discrimination claim is preempted by section 301.

       In Count I, plaintiff alleges that defendant’s employees discriminated against him on the

basis of his age in violation of the DCHRA, D.C. Stat. § 14-201.11, and subjected him to a

hostile and abusive work environment. Compl. ¶¶ 78–86. Plaintiff’s age discrimination claim is

predicated upon four allegedly adverse employment actions that his supervisors took against

him, recounted in sections A through D of the complaint. Compl. ¶¶ 29–77. Since plaintiff

specifically alleges that the challenged employment actions were taken in violation of rights

created by the CBA, the age discrimination claim is preempted under section 301.

       1. Section A: “Non-selection for shift supervisor position”

       The first employment action that plaintiff describes is his non-selection for a shift

supervisor position. Plaintiff argues that his assertion that his non-selection was based on age

discrimination is not preempted by section 301 because he “makes no claim that he was the most

senior employee and therefore entitled to the promotion” under the CBA. Pl.’s Opp. at 18. This

argument is belied by the allegations in the complaint.

       In December 2010, plaintiff applied for a shift supervisor position. Compl. ¶ 29. He

asserts that he “was more qualified for this position than any other applicant because he had rank



                                                 8
and seniority advantages over each person who applied for the position.” Compl. ¶ 30. This is a

clear reference to the CBA, and the point was underscored when plaintiff specifically alleged:

“Regarding said placement, Union rules, which have been formalized in the Union Agreement

with Defendant, require that when an opening occurs, placement is determined by rank and

seniority.”   Compl. ¶ 31; see CBA § 16.3 (“In the event that a higher level job becomes

available, first preference shall be given to the most senior Employee who is available and

qualified to perform the duties thereof.”). Plaintiff alleged in his complaint that despite these

“Union rules,” defendant selected three younger, less qualified men for the job. Compl. ¶¶ 30,

33. He then states: “plaintiff believed that this non-selection for the position was due to his

age.” Compl. ¶ 36.

       The only reason plaintiff provides for why he was “more qualified for the position” is his

seniority and rank under the CBA. He alleges that the individuals selected for the position were

less qualified, but he does not provide any facts to support this conclusion beyond the allegation

that they were less senior. See generally Compl. ¶¶ 29–38. The fact that plaintiff attributes

defendant’s failure to comply with the CBA to age discrimination does not alter the fundamental

nature of his allegation, which is that he was not accorded the seniority to which he was entitled

under the CBA. Since the seniority privileges and the rules regarding promotions that plaintiff

seeks to vindicate derive from the CBA, his age discrimination claim based on his non-selection




                                                9
is preempted by section 301.3 See Lingle, 486 U.S. at 410 n.10 (“Section 301 governs claims

founded directly on rights created by collective-bargaining agreements . . . .”).

       Plaintiff’s reliance on this Court’s decision in Daniels v. Potomac Elec. Power Co., 789

F. Supp. 2d 161 (D.D.C. 2011) is inapposite. In that case, the Court held that the plaintiff’s

DCHRA claims were not preempted by section 301 because the plaintiff did not mention the

CBA in his complaint and his claims were “based on rights created by DCHRA and not rights

created by the CBA.” Id. at 164–65. Daniels is distinguishable because as the Court has

explained, here, plaintiff’s claim regarding his non-selection for the shift supervisor position is

based upon rights created by the CBA, and therefore, it is preempted by section 301.4



3       Plaintiff contends that he only mentioned the CBA rules regarding promotions to
underscore that his supervisors knew their actions were wrongful and violated the company’s
policies. Pl.’s Opp. at 18; see also id. at 3–5, 11 (arguing that the complaint refers to the CBA as
evidence of his supervisors’ discriminatory intent). The CBA rules may be relevant for
determining the knowledge and intent of plaintiff’s supervisors. But that does not alter the fact
that plaintiff’s non-selection claim is founded upon rights created by the CBA, and therefore, it is
preempted by section 301.

4       Plaintiff’s non-selection claim is also preempted because it depends in part upon analysis
of the CBA. To establish a prima facie case of discrimination under the DCHRA, plaintiff must
show that: (1) he belongs to a protected class; (2) he was qualified for the job at issue; (3) the
adverse action occurred despite his qualifications; and (4) the adverse action was based on the
characteristic that placed him in the protected class. Futrell v. Dept. Labor Fed. Credit Union,
816 A.2d 793, 803 (D.C. 2003). Determining whether plaintiff has met the second element will
most likely involve substantial analysis of the CBA because the evidence plaintiff proffers
concerns his seniority and the CBA’s rules about promotions. Compl. ¶¶ 30–34.
        Plaintiff cites Sokos v. Hilton Hotels Corp., 283 F. Supp. 2d 42, 51 (D.D.C. 2003) to
support his argument that his discrimination claim is not preempted because it is independent of
the CBA. Pl.’s Opp. at 14–15. In Sokos, the plaintiff brought a negligent hiring, supervision and
retention claim against his employer on the grounds that it knew that one of its employees was
unfit and incompetent and failed to supervise that employee’s employment decisions. Id. The
Court held that this claim was not preempted by section 301 because it did not require
interpretation of the terms of the CBA. Id. Sokos is distinguishable because while the
determination of whether an employee is incompetent or whether an employer knew of an
employee’s incompetence is independent of the CBA, here, plaintiff relies on the CBA to
demonstrate his superior qualification for the position he was denied, which is one of the
elements of a discrimination claim. Compl. ¶¶ 30–34.
                                                 10
       2. Section B: “Problems with Selectees result in Plaintiff being blamed”

       On April 18, 2011, plaintiff was promoted to shift supervisor subject to a 90-day

probationary period. Compl. ¶ 42. Approximately one week after the 90-day period ended,

plaintiff’s direct supervisor, Gregory Steele, allegedly informed him that his probationary period

would last for 120 days instead. Compl. ¶ 44. Plaintiff contends that the 120-day probationary

period was improper because it “was not agreed upon nor the norm.” Compl. ¶ 44. This claim

also invokes the CBA as the source of the right plaintiff is trying to vindicate because it is

section 16.3 of the CBA that provides for the “agreed upon” 90-day term of probation after a

promotion. See CBA § 16.3 (“If, within ninety (90) days of such promotion, an Employee fails

to satisfy the Employer’s requirements . . . such Employee may elect to be returned to his or her

prior position in the bargaining unit.”).    Indeed, in his opposition memorandum, plaintiff

acknowledges that the phrase “not agreed upon nor the norm” is a reference to the CBA’s

guidelines regarding probationary periods. See Pl.’s Opp. at 4. Since the discrimination claim in

section B is founded upon rights created by the CBA’s rules on probationary periods, it is also

preempted under section 301. See Heintzman v. Amalgamated Transit Union Int’l, 825 F. Supp.

2d 161, 166–67 (D.D.C. 2011) (holding that the plaintiff’s claims were preempted where the

plaintiff was seeking to vindicate a right created by a contract that fell within the purview of

section 301).

       3. Section C: “August 23, 2011 PARS”

       Section C describes plaintiff’s receipt of four disciplinary Personnel Action Reports or

“PARs” from his supervisor.         Compl. ¶¶ 47–57.      Plaintiff asserts that his supervisor

recommended that he be dismissed based on the PARs despite the fact that “protocol for

disciplinary progression consists of a verbal warning, a written warning, a suspension, and then



                                               11
dismissal according to the collective bargaining agreement.” Compl. ¶¶ 59–60. He further

alleges that his supervisor’s actions also violated the CBA’s requirement that a PAR must be

investigated. Compl. ¶ 62. These allegations point directly to the CBA as the source of the

rights that plaintiff asks the court to recognize: sections 7.1 and 7.2 of the CBA respectively

require Coastal to “attempt to conduct a confidential investigation of the circumstances of the

event(s) giving rise to possible disciplinary action” and to employ a system of progressive

discipline. CBA §§ 7.1–7.2. Therefore, these claims are also preempted.

       4. Section D: “September 12, 2011 suspension”

       In section D, plaintiff states that on September 12, 2011, he received a three-day

suspension based on his PARs. Compl. ¶¶ 66–67. Plaintiff does not specifically invoke the

CBA in this section, but he does allege that defendant failed to follow the appropriate process

because it did not investigate the PARs that gave rise to his suspension or provide him with an

objective hearing on his appeal of the suspension notice. Compl. ¶ 70. As previously discussed,

it is section 7.1 of the CBA that requires defendant to attempt to conduct a confidential

investigation of events giving rise to disciplinary sanction. See CBA § 7.1. So plaintiff’s

contention that there should have been an investigation and a hearing arises out of the CBA, and

resolving the question of whether the suspension was imposed improperly would involve

consideration of the CBA. Therefore, an age discrimination claim based on the allegations in

section D is also preempted by section 301.5




5      Section E of the complaint alleges that plaintiff was suspended indefinitely without pay
on June 29, 2012. See Compl. ¶ 74. Plaintiff has not alleged that the action was motivated by
discrimination on the basis of his age. He alleges only that it was taken in retaliation for his
opposition to the attempt to discharge him laid out in section C. Compl. ¶ 77. So section E has
no bearing upon whether Count I is preempted.
                                               12
       Throughout the complaint, plaintiff attributes his non-selection for the shift supervisor

position and his treatment at the hands of his supervisors to his age, but the gravamen of his

complaint is that he did not receive promotions for which he was more qualified by virtue of his

seniority, and that he was not accorded the disciplinary procedure that was “agreed upon.” See

Compl. ¶¶ 30–33. Since those claims are based upon rights created by the CBA, the age

discrimination claim is preempted by section 301 and fails to state a claim under the DCHRA.

The Court will therefore dismiss it under Rule 12(b)(6). See Bush v. Clark Const. & Concrete

Corp., 267 F. Supp. 2d 43, 46 (D.D.C. 2003) (dismissing the plaintiff’s claim for failure to state

a claim under D.C. statutory law for recovery of wages after finding that the plaintiff’s claim was

preempted by section 301).

B. Plaintiff’s retaliation claim is not preempted by section 301.

       In Count II, plaintiff alleges that his supervisors placed him on indefinite suspension “for

no reason other than in retaliation for Plaintiff’s prior opposition to the attempt to remove him in

2011 for discriminatory reasons.” Compl. ¶ 77. To establish a prima facie case of retaliation

under the DCHRA, plaintiff must show that: “(1) he was engaged in a protected activity or that

he opposed practices made unlawful by the DCHRA, (2) the employer took an adverse action

against him, and (3) a causal connection existed between his opposition or protected activity and

the adverse action taken against him.” Propp v. Counterpart Int’l, 39 A.3d 856, 863 (D.C.

2012). Once a plaintiff has established a prima facie claim of retaliation, the burden then shifts

to the defendant to demonstrate that it had a non-retaliatory reason for its action. Id. at 868.

       Although plaintiff contends that he was retaliated against for exercising appeal rights

accorded to him under the CBA, litigating the question of whether plaintiff has or has not made

out the elements of a retaliation claim will not require the interpretation of the CBA. In



                                                 13
particular, determining whether plaintiff engaged in a protected activity when he filed his appeal,

whether the indefinite suspension was an adverse action, or whether there was a causal

connection between the his appeal of his recommended dismissal and his indefinite suspension

will not require substantial analysis of the CBA. See Lingle, 486 U.S. at 407 (holding that the

elements of a retaliatory discharge claim are “purely factual questions pertain[ing] to the conduct

of the employee and the conduct and motivation of the employer . . . . [and do not] require[] a

court to interpret any term of a collective-bargaining agreement”). Additionally, plaintiff’s right

to be free from retaliation – unlike his rights to seniority, a 90-day probationary period after a

promotion, and an investigation into the events giving rise to a disciplinary sanction – does not

derive from the CBA.

       Defendant maintains that the retaliation claim is preempted anyway because the CBA

will come into play in connection with the defense. Coastal plans to offer legitimate non-

retaliatory reasons for its actions that it says would directly implicate the CBA. Def.’s Reply to

Pl.’s Opp. to Def.’s Mot. to Dismiss Compl. (“Def.’s Reply”) [Dkt. # 5] at 5, citing Reece v.

Houst. Lighting & Power Co., 79 F.3d 485, 487 (5th Cir. 1996). In Reece, the Fifth Circuit

explained that the employee’s discrimination case turned on questions of promotion, seniority,

and assignment to training programs, all of which were provided for in the CBA. 79 F.3d at 487.

It added that the employer would “undoubtedly rely on the CBA as its legitimate, non-

discriminatory reason” for its actions, and the employee’s efforts to show that the employer’s

stated reason was pretextual would involve interpretation of the employer’s rights under the




                                                14
CBA. Id. The Court then held that the employee’s claim was preempted under section 301

because the interpretation of the CBA was “made necessary by an employer defense.” Id.6

       Defendant submits that as in Reece, construction of the CBA will be “made necessary”

by its defense, because to rebut plaintiff’s claim, it will assert that it complied with the

procedures set forth in the CBA. Def.’s Reply at 5. But whether defendant adhered to or varied

from the CBA does not go to the question of whether the termination was motivated by

retaliation or a legitimate reason, and proof that the defendant complied with its terms does not

rebut the claim set forth in Count II. Unlike the situation in Reece, plaintiff’s retaliation claim

does not turn on questions of promotion, seniority, or other benefits provided for in the CBA.

Plaintiff claims that his supervisors retaliated against him because he appealed their prior

attempts to dismiss him, and plaintiff does not invoke the CBA as the source of the rights

underlying the retaliation claim. Compl. ¶¶ 64, 77, 90. Since this claim is not based on

defendant’s failure to comply with the CBA, defendant’s defense is a “purely factual inquiry

[that] does not turn on the meaning of any provision of a collective-bargaining agreement.” See

Lingle, 486 U.S. at 407. Therefore, plaintiff’s retaliation claim is not preempted by section 301.




6       Although the D.C. Circuit has not spoken on the issue, several other circuits have rejected
this “defense preemption” theory. See, e.g., Watts v. United Parcel Serv., Inc., 701 F.3d 188,
193 (6th Cir. 2012); Price v. Goals Coal Co., No. 97-1710, 1998 WL 536371, *8 (4th Cir. 1998);
Humphrey v. Sequentia, Inc., 58 F.3d 1238, 1244 (8th Cir. 1995); Jarvis v. Nobel/Sysco Food
Servs. Co., 985 F.2d 1419, 1427 (10th Cir. 1993).
                                                15
                                         CONCLUSION

         For the reasons stated above, the Court will grant defendant’s motion to dismiss Count I

because plaintiff’s age discrimination claim is preempted under section 301, and it therefore fails

to state a claim under the DCHRA. The Court will deny defendant’s motion to dismiss Count II

because plaintiff’s retaliation claim is not preempted under section 301. A separate order will

issue.




                                             AMY BERMAN JACKSON
                                             United States District Judge

DATE: September 11, 2013




                                                16
