                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

_________________________________________
                                                        )
Charles H. Rogers,                                      )
                                                        )
        Plaintiff,                                      )
                                                        )
                v.                                      )     Civil No. 14-cv-001650
(APM)
                                          )
Washington Metropolitan Area              )
Transit Authority, and                    )
                                          )
Local 689, Amalgamated Transit Union,     )
                                          )
       Defendants.                        )
_________________________________________ )

                                   MEMORANDUM OPINION

I.      INTRODUCTION

        This case is before the court on Defendant Washington Metropolitan Area Transit

Authority’s (“WMATA”) and Defendant Local 689, Amalgamated Transit Union’s (“Local 689”)

Motions for Summary Judgment. See ECF Nos. 41, 42. As required by Local Civil Rule 7(h)(1),

with their Motions for Summary Judgment, both Defendants submitted statements of material facts

as to which they assert there is no dispute. See ECF Nos. 41, 42-4. Plaintiff, however, did not file

an Opposition to either Motion. Accordingly, as permitted by Federal Rule of Civil Procedure

56(e) and the law of this Circuit, see Grimes v. District of Columbia, 794 F.3d 83, 92 (D.C. Cir.

2015), the court will treat the facts presented by Defendants as conceded. Still, despite treating

these facts as conceded, the court must determine whether Defendants have carried their burden to

warrant granting summary judgment in their favor. See id. at 97 (Griffith, J., concurring). The

court will turn to that inquiry, after first briefly recounting the uncontested facts.
II.    FACTUAL BACKGROUND

       Plaintiff Charles H. Rogers, Jr., brought this action alleging that (1) he was improperly

terminated from his position as a bus driver at WMATA in violation of the applicable Collective

Bargaining Agreement (“CBA”), and (2) denied fair representation by his union, Local 689, during

subsequent arbitration proceedings in which he challenged his termination.              See Compl.,

ECF No. 1, ¶¶ 42-45.

       WMATA hired Defendant as a bus driver in March 2010. Def.’s Mot. for Summ. J.,

ECF No. 42 [hereinafter Def. WMATA’s Mot.], Def. WMATA’s Stmt. of Mat. Facts, Ex. 4, ECF

No. 42-4 [hereinafter Def. WMATA’s Stmt.], ¶ 1. In August 2010, Plaintiff was arrested in

Washington, D.C., for sexual solicitation. Id. ¶ 2. Almost three years later, in April 2013,

WMATA received an anonymous tip that Plaintiff was driving with a suspended driver’s license.

Def. WMATA’s Mot., Ex. 5, Aff. of Jewel Bell, ECF No. 42-5, Memo. of Dismissal [hereinafter

Dismissal Memo.], at 3. A subsequent investigation revealed that the anonymous tip was accurate,

and that while Plaintiff held a valid District of Columbia commercial driver’s license (“CDL”), he

had (1) a suspended CDL in Prince George’s County, Maryland, (2) seven open motor vehicle

cases, and (3) three upcoming trial dates relating to those cases. Id. Plaintiff admitted that he had

not reported at least some of these incidents to WMATA, as he was required to do. Id. at 4.

WMATA then terminated Plaintiff’s employment in May 2013 for, among other reasons,

“deliberately operating on a suspended license, failing to report these incidents to WMATA

Management, placing yourself, our passengers and the general public in potential harm, while

continuing to defraud WMATA.” Id. at 8.

       Plaintiff filed a grievance regarding his termination on May 10, 2013. Def. WMATA’s

Mot., Ex. 2, Arbitration Board Decision, ECF No. 42-2 [hereinafter Board Decision], at 6. His



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grievance proceeded to arbitration. On March 4, 2014, the Arbitration Board issued its decision,

finding that WMATA had “produced persuasive evidence that [Plaintiff], as charged, committed

two distinct dischargeable offenses, and there is insufficient basis on this record to disturb

[WMATA’s] determination to dismiss [Plaintiff].” Id. at 12.

       On August 28, 2014, Plaintiff filed a complaint in D.C. Superior Court. See Compl.,

ECF No. 1-4. The case was removed to this court on October 2, 2014, see Notice of Removal,

ECF No. 1. Defendants filed their Motions for Summary Judgment on June 29, 2016. See ECF

Nos. 41-42.

III.   LEGAL STANDARD

       Federal Rule of Civil Procedure 56 provides that a court should grant summary judgment

if “there is no genuine dispute as to any material fact and [the moving party] is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(a). A material fact is one that is capable of affecting the

outcome of litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

       Rule 56 “mandates the entry of summary judgment, after adequate time for discovery and

upon motion, against a party who fails to make a showing sufficient to establish the existence of

an element essential to that party’s case . . . on which that party will bear the burden of proof at

trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party moving for summary

judgment “bears the initial responsibility of informing the district court of the basis for its motion”

and identifying those portions of the record that it believes “demonstrate the absence of a genuine

issue of material fact.” Id. at 323. If the non-moving party does not oppose summary judgment,

then the facts put forward by the moving party may be treated as conceded, but the burden still

remains on the moving party “to demonstrate why summary judgment is warranted.” Grimes, 794

F.3d at 96-97 (Griffith, J., concurring).



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IV.     DISCUSSION

        Plaintiff alleges that (1) WMATA breached the CBA when it terminated Plaintiff’s

employment, and (2) Local 689 breached its duty of fair representation during the subsequent

arbitration proceedings. Plaintiff’s dual claims amount to what is known as a “hybrid” action.

See DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 164 (1983) (describing a “hybrid” action

as involving two claims—one against an employer alleging a breach of the collective bargaining

agreement and one against the union for breach of the union’s duty of fair representation—that

“are inextricably interdependent”). In order to prove a hybrid breach of contract/breach of duty of

fair representation case against Defendants, Plaintiff must prove both that (1) Local 689 breached

its duty of fair representation, and (2) WMATA breached the CBA. See Cephas v. MVM, Inc.,

520 F.3d 480, 485 (D.C. Cir. 2008).

        Here, the court need not decide whether Local 689 provided Plaintiff with deficient

representation, because the uncontested factual record shows that WMATA’s termination of

Plaintiff did not breach the CBA. WMATA fired Plaintiff because he violated WMATA policies.

Specifically, he was operating a bus with a suspended CDL and had failed to report to his

supervisors the fact of his CDL’s suspension, as well as multiple open traffic cases and upcoming

trial dates in those matters. Dismissal Memo at 8. Plaintiff was required to report to his manager

within 24 hours any “lost, suspension, cancellation or disqualification of [his] driver’s

permit/license” and report “immediately” any “pending litigation which could affect [his] license

status.” Board Decision at 3. Yet, as a WMATA investigation uncovered, Plaintiff failed to report

various driving infractions, impending court dates, and a suspended Maryland CDL. Dismissal

Memo. at 3. At a meeting with a WMATA official on April 29, 2013, Plaintiff confirmed in

writing his failure to report at least some of those infractions. Id. at 4.



                                                   4
       WMATA’s termination of Plaintiff also was upheld following arbitration proceedings.

Plaintiff grieved his termination, and an arbitrator found that Plaintiff “on multiple occasions”

violated WMATA regulations “by failing to report the suspension of his driver’s license and

pending litigation that could affect his license status, and also violated [WMATA regulations] by

failing to report his arrest and subsequent conviction for Sexual Solicitation.” Board Decision at

8-9. Such failures to report, the arbitrator found, “have been treated by [WMATA] as terminable

and there [wa]s no showing that the rule [wa]s enforced inconsistently or that [Plaintiff’s]

termination on that basis [wa]s otherwise discriminatory. Id. at 9. Finally, the arbitrator found

that there was no evidence mitigating Plaintiff’s offense. Id.

       The court finds unequivocally that the factual record shows that WMATA had valid

grounds to terminate Plaintiff due to his failure to report a suspended CDL, numerous traffic

violations, pending trial dates concerning his driving infractions, and a conviction for sexual

solicitation, all in violation of WMATA policy. Plaintiff has not offered any facts that would

create a genuine dispute of material fact about the propriety of WMATA’s termination decision.

Accordingly, the court finds that Defendants have carried their burden and grants their Motions

for Summary Judgment.

                                                ***

       Before concluding, the court acknowledges that when, as here, a non-movant has “fail[ed]

to properly address another party’s assertion of fact,” Rule 56(e)(1) grants the court discretion to

“give [the non-movant] an opportunity to properly support or address the fact.” Fed. R. Civ. P.

56(e). The Advisory Committee Note to Rule 56(e) states that “[i]n many circumstances this

opportunity will be the court’s preferred first step.” Fed. R. Civ. P. 56(e) Advisory Committee




                                                 5
Note to the 2010 Amendment; see also Grimes, 794 F.3d at 92 (citing Fed. R. Civ. P. 56(e)

Advisory Committee’s Note to the 2010 Amendment).

       The court here, however, declines to grant Plaintiff such opportunity. Plaintiff’s counsel

has shown a remarkable lack of diligence in prosecuting this matter since its inception. At the start

of the case, Plaintiff’s counsel failed to respond to Local 689’s motion to dismiss, and only opposed

the motion after the court warned him that the case might be dismissed if he did not file a response.

See Minute Order, Feb. 4, 2015. Then, after discovery commenced, Plaintiff’s counsel yet again

failed to a respond to a defense motion. When Plaintiff’s counsel did not appear for a deposition

that he had noticed of a union official, Local 689 sought an award of expenses. The court granted

the award after Plaintiff’s counsel failed to respond to Local 689’s motion. See Order, ECF No.

33. Plaintiff’s counsel also did little to prosecute this case during discovery. The court twice

extended the discovery period, yet Plaintiff’s counsel did not respond to Defendants’ discovery

requests and did not take any depositions. See Def. Local 689’s Mot. for Summ. J, ECF No. 41,

at 2-3. Plaintiff’s counsel did seek to depose Local 689’s witnesses after the initial discovery

period had expired, but the court denied his request. See Minute Order, Apr. 21, 2016.

       In short, had Plaintiff’s counsel exhibited more diligence in prosecuting this matter, the

court might have considered granting him the opportunity to respond to Defendants’ motions for

summary judgment. But he did not. The court, for that reason, decided to take the “less forgiving

approach,” Grimes, 794 F.3d at 92, and to treat the facts proffered by Defendants as conceded and

to decide the motions without an opposition.




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      V.     CONCLUSION

      For the foregoing reasons, the court grants Defendants’ Motion for Summary Judgment.

A separate order accompanies this Memorandum Opinion.




Dated: October 6, 2016                          Amit P. Mehta
                                                United States District Judge




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