UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MICHAEL BULLOCK , Plaintiff,

v. Civil Action No. 16
- 1645 (JEB) AMERICAN SECURITY PROGRAM, INC. , Defendant.

MEMORANDUM OPINION George Burns once quipped that the secret to a good sermon involves having a g ood beginning and a good ending, and to have the two as close together as possi ble. W hether or not this is true of sermons, pro se Plaintiff Michael Bullock admittedly tests the limits of this axiom as applied to pleading a claim here

. In his four

- sentence Complaint, he asserts that his former employer, Defendant American Security Program, Inc., breached a settlement agreement with him and his union by failing to help him get a new job at one of its worksites. ASP now moves
to dismiss his Complaint for failure to state a claim. As the Court con cludes t hat Bullock’s Opposition provides sufficient additional facts to state a plausible right to relief under Section
301 of the Labor Management Relati ons Act, it will deny the Motion

. I. Background The Court, as it must at this stage, draws the facts from Plaintiff’s one - paragraph Complaint and his Opposition to the Motion to Dismiss. See Brown v. Who le Foods Market Gr.,
Inc. , 789 F.3d 146, 152 (D.C. Cir. 2015) (holding district court must consider all pro se litigant’s allegations when considering a motion to dismiss, including those found in plaintiff’s2 opposition). Because Plaintiff also incorporat es by reference several emails attached to his Opposition, the Court considers him to have pled the facts contained in those communications as
well

. Defendant American Security Programs employed Bullock as a security guard from August 24, 2010, to Novembe r 27, 2013. See ECF No. 8 (Opposition) at 1. In May 2013, Bullock worked at a site controlled by the Federal Protective Service

. Id. This position required a suitability determination, which is similar to a security clearance. Id. , Exhs. 7, 9, 12. FPS , not the employer, issues such determination s after an investigation into an applicant’s background

. See ECF No. 8, Exh. 9 (Response to Level III Grievance) at 1. On May 9, 2013, ASP realized that Bullock did not actually possess an active suitabil ity
determination and consequently suspended his employment at the FPS site

. See Resp. to Grievance at 2. Plaintiff filed a complaint challenging this suspension with his U nion

— the United Government Security Officers of America International Union

— as required under a Collective Bargaining Agreement between the U nion and ASP. See Opp. at 1. Pursuant to the CBA, t he Union and ASP then negotiated Bullock’s grievance through several stages of a mandatory process . See Opp., Exhs. 1

- 9, 12. At the third step in this process, ASP’s Senior Vice President, Jeffrey Roehm, provided the Company’s formal “ response ” to the grievance , explaining that ASP had submitted paperwork to FPS when Bullock came on board in 2011 to request that the agency recognize and appl y his suitability determination from his previous employer. See Resp

. to Grievance at 1. ASP’s response further asserted, however, that on February 27, 2013, an internal audit revealed that FPS had never acted on that 2011 request, thus forcing the Compa ny to renew its request to transfer Bullock’s suitability determination. Id. at 2. According to the Company, FPS responded three months later to this renewed request by stating3 that it had already found Bullock unsuitable two years prior, in March 2011, after unsuccessfully attempting to resolve several issues with him

. Id. Based on these facts, ASP claimed in its response letter that it had no choice but to suspend Bullock unt il he could obtain the requisite

su itability determination

. Id.
This same letter also contained ASP’ s proposed resolution to Bullock’s grievance, laid
out in three commitments

. Id. at 4. The Company first articulated that it “want[ed] t o help him have an opportunity to resolve his ‘issues’ with FPS, and help to put him b ack to work as soon as possible.” Id. ASP , however, also “reiterate[ed]” that the suitability determination “is betwe en himself and FPS,” and thus the Company could only help him resubmit paperwork for the government’s ultimate processing and determinati on. Id. ASP next promised that “[i]f and when Mr. Bullock receives his favorable suitability from FPS, ASP will make every effort to find him suitable employment on an ASP/FPS contract.” Id. Finally, the Company asserted that
its “offer still stands t o work with Mr. Bullock to try to find him work on a non

- FPS site during the interim period.” Id. Neither the Union nor the Company subsequently escalated the grievance to the fourth stage of the CBA process

— i.e. , referral for binding arbitration

. See Opp, Exh. 12 at 1

. Bullock instead proceeded to interview for a non - FPS worksite in Maryland on September 25, 2013

. See Opp. at 2 . The very same day, the Union emailed Roehm to affirm that Bullock had agreed to pick an available non - FPS location to wor k at until such time as his “sui tability comes back.” Opp. , Exh. 12 at 1. The Union’s email further not ed that ASP had agreed to change his
“termination status ” to “ tra nsfer/pending status” until FPS made the new determination. Id. Three hours later, R oehm responded to this email and agreed to the Union’s terms with “one qualification: Mr. Bullock must choose a site to work, and begin to work, within the next 30

-4 days or we will not carry him any longer as a[n] active employee. If his suitability were t o be approved after he is removed from the company roles [ sic ] , and he wishes to again be employed by ASP, he would have to reapply for employment.” Id. Over the next two weeks , Bullock completed the required training for an available non FPS post with th e Company

. See Opp. at 2; Id. , Exh s . 11, 13. He could no t, however, reach either Roehm or the ASP manager of that worksite, as they were out on vacations, to confirm his assumption of this position. See Opp. at 2. On November 26, 2013, he also learned that ASP had not return ed a form to the State of Maryland for his handgun permit, which he also n eeded to
obtain for the new position. See Opp., Exh. 14. Maryland thus denied him the permit

. Id. The pleadings do not ind icate what happened thereafter, a lthough Bullock says he continued to be unemployed. See Opp. at 4. The Court thus infers that he was terminated and never reinstated to a new worksite by ASP. On July 22, 2016, nearly thr ee years later, Bullock filed this pro se action in the District

o f Columbia S uperior Court alleging a breach

- of

- contract claim. See ECF No. 1

- 1 (Complaint).
His C omplaint in its entire ty reads: As an employee of ASP working on a FPS government site, I was removed from the worksite because of my clearance. There was an agreement between myself, ASP and my union, UGSOA, to have me transferred to a non

- FPS government site. This agreement was agreed upon in November 2013. ASP never held up to their side of agreement

. Id. Having removed the case to this Court based on div ersity jurisdiction , ASP now moves to dismiss the Complaint in its entirety. See ECF No. 5 (Motion to Dismiss).
II. Legal Standard The Federal Rules of Civil Procedure require a plaintiff to include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).5 Federal Rule of Civil Procedure 12(b)(6) , in turn, provides for the dismissal of an action where such a complaint fails “to state a claim upon which relief can be granted.” In evaluating a Rule 12(b)(6) m otion , the Court must “treat the complaint’s factual allegations as true . . . and must grant plaintiff ‘the benefit of all inferences that can be derived from the facts alleged.’” Sparrow v. United Air Lines, Inc. , 216 F.3d 1111, 1113 (D.C. Cir

. 2000) (quoting Schuler v. United States , 617 F.2d 605, 608 (D.C. Cir. 1979 )) (citation omitted). The pleading rules are “not meant to impose a great burden , ” see Dura Pharm., Inc. v. Broudo , 544 U.S. 336, 347 (2005) , and “d etailed factual allegations” ar e thus not necessary, see Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007). A complaint, however, “ 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) (quoting Twombly , 550 U.S. at 570 ). The Cour t need not accept as true “a legal conclusion couched as a factual allegation,” nor an inference unsupported by the facts set forth in the c omplaint. Trudeau v. Fed. Trade Comm’n , 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain , 478 U.S. 265, 286 (1986) (internal quotation marks omitted)). The facts instead “must be enough to raise a right to rel ief above the speculative level ” even if “recovery is very remote and u nlikely.” Twombly , 550 U.S. at 555

- 56 (citing
Scheuer v. Rhodes , 416 U.S. 232, 236 (1974)). While a pro se pleading is held to “less stringent standards than formal ple adings drafted by lawyers, [it ] must nonetheless plead factual matter that permits [th e Court] to infer more than the mere possibility of misconduct.” Brown , 789 F. 3d at 150 (internal quotations and citations omitted).
III. Analysis In pressing its Motion to D ismiss, ASP advances three arguments. It first contends that the Complaint does not point to a binding agreement between ASP and the Union to place6 Bullock on a non - FPS worksite and thus fails to state a plausible breach

- of

- contract claim. See
Mot. at 9

- 11. The Company next asserts that, even if such a contract exists , any common - law

co ntract claim that ASP breach ed that agreement is pre empted by Sec tion 301 of the Labor Management Relations Act. Id. at 11

- 13. Finally, ASP argues that , even if the Court treats
Bullock’s claim as pled under the LMRA , it cannot survive because he never exhaust ed the
CBA’s mandatory grievance procedures before filing this action

. Id. at 13

- 15. Taking up each
of these argument s sequentially , the Court concludes that Bullock’s common - law contract claim
i s indeed preempted by Section 301 , but his Complain t nevertheless survives because he has
stated a plausible ri ght to relief under that provision of the LMRA

. There is little need to linger on ASP ’s first argument about the elements required to establish a viable breach

- of

- contract claim under District of Columbia law. Regardless of whether, in the abstract, the Union and ASP’s communications during the grievance process
would normally form an enforceable contract under such laws , the CBA here explicitly provides that “[a]ny dispute or g rievance not processed or appealed by the Union within the time limits set forth in any Step shall be considered settled on the basis of the Employer’s last preceding
Answer. ” ECF No. 5

- 2 (Collective Bargaining Agreement), Section 16.6 at 19. The Court

u nderstands Bullock to base his claim in this action on ASP’ s documented answer at Step III of his suspension

- grievance process . See Opp. , E xh. 9. Under the CBA , then, Roehm’s response
letter plausibly constitutes settlement of that grievance , which Bullo ck could theoretically seek to enforce. The Company is correct, however, that any such claim is preempted by Section 301 of the LMRA and thu s cannot proceed as a common - law contract cause of action. Section 301 grants federal courts jurisdiction over disputes “for violation of contracts between an employer7 and a labor organization representing employees in an industry affecting commerce.” 29 U.S.C. § 185(a). This provision thus serves as the basis for federal preemption of “any statute cause of action for violation of contracts between an employer and a labor organization.” Franchise Tax Bd. v. Constr. Laborers Vacation Trust , 463 U.S. 1, 23 (1983) (internal quotation marks omitted). When a state

- law claim fi ts this description, “that claim must either be treated as a § 301 claim, or dismissed as pre

- empted by federal labor

- contract law.” Allis

- Chalmers Corp. v.
Lueck , 471 U.S. 202, 220 (1985). This is so even where the relevant labor contract between the uni on and employer

– here, the settlement agreement

– is not itself a CBA

. See Retail C lerks
Int’l Ass’ n v. Lion Dry Goods, Inc. , 369 U.S. 17, 26 (1962) (holding Section 301 provides “[a] federal forum

. . . for action s on other labor contracts besides colle ctive bargaining contracts”).
The settlement agreement that Bullock points to here is clearly a “contract [] between an employer and a labor organization representing employees in an industry affecting commerce.” 29 U.S.C. § 185(a); see also Olson v. Bemis Co., Inc. , 800 F.3d 296, 300

- 304 (7th Cir. 2015) (holding grievance settled through CBA process pre empted by Section 301 and collecting cases for same); see also Davis v. Bell Atl.

- W. Va., Inc. , 110 F.3d 245, 249 (4th Cir. 1997); Jones v. Gen. Mo tors Corp. , 939 F.2d 380, 382

- 83 (6th Cir. 1991) . The emails and letters he reli es on for
the formation of this agreement are between the Union and ASP alone, despite Bullock’s characterization of them in his Complaint

. See EC F No. 8, Exhs. 6

- 9, 12. He , in fact, is not even copied on them. Id. The Court thus concludes that his breach

- of

- contract claim is squarely
pre empted by Section 301 and, as a result, must either be treated as such or dismissed. Allis

Chalmers , 471 U.S. at 220.
ASP , not surprising ly, argues that either path leads to the same result

– viz. , dismissal

. The Company points out that Bullock never claims that he pursued the grievance process8 established by the CBA for the alleged br each of the settlement agreement before bringing th is action. To be sure, “ [o] rdinarily

. . . an employee is required to attempt to exhaust any grievance

o r arbitration remedies provided in the collective bargaining agreement” before heading to court with a Section 301 claim , see DelCostello v. Int’l Bhd

. o f Teamsters , 462 U.S. 151, 163 (1983), and this “principle applies equally to the alleged breach of a settlement agreement as to the dispute that sparked t he grievance in the first place. ” Olson , 8 00 F. 3d at 303.
This exhaustion requirement , however, is not absolute. Id. At least sometimes, an

“ employee’s claim is not subject to mandatory alternative

- dispute resolution (under the CBA or otherwise), [and] he can bring a straightforward breach of contract suit under § 301, which closely resembles an action for breach of cont ract cognizable at common law , ” without first going thr ough a CBA

- mandated grievance process

. Id. ( citations and quotation marks omitted).
B ullock appears to base his claim here on the Com pany’s failure to assist him in finalizing his

new job at the non - FPS worksite, as well as its failure to respond to the inquiry about his handgun permit. ASP does not explain where the CBA at issue in this case requires exhaustion of eithe r of these und erlying action s . The Company instead relies only on a single case, Robinson v. Wash

. Metro. Area Transit Auth. , 167 F. Supp. 3d 118 (D.D.C. 2016), to argue that a grievance settlement is always subject to the mandatory grievance procedures found in the CBA. See ECF
No. 9 (Reply) at 7

- 8. In Robinson , however, the settlement explicitly provided that any dispute arising from it would be subject to the CBA’s mandatory grievance process. See 167 F. Supp. 3d
at 135

- 36. No such provision exists in the purported settlement agreement here

. The relevant CBA, too , appears to only require that “ discharge and disciplin e matters shall be subject to the grievance and arbitration procedures contained in this Agreem ent.” CBA , Section 16.1 at 14

.9 Neither of the actions on which Bullock rests hi s claim appear s at first blush to necessarily fall within the typical meaning of these terms , and ASP makes no such supportive textual argument at this stage

. The Company ins tead simply claims that all disputes over such settlemen t agreements must be exhausted through the CBA’s grievance procedures without citing to any

case in our circuit that s upports such a sweeping rul e. There is, in fact, a n apparent circuit split

over how to treat the breach of side agreements in relation to a CBA’s mandatory grievance procedures. See United S teelworkers of Am. v. Cooper Tire & Rubber Co. , 474 F.3d 271, 278

- 79 (6th Cir. 2007) (discussing circuit split)

. T he issue is thus not appropri ate for disposition at this early stage of the litigation , especially given the lack of thorough briefing on this important matter of law

. Accord Olson , 800 F.3d at 304 (declining to apply in

- circuit presumption at motion

- to

- dismiss stage even with settle ment agreement in record). While it may turn out that the CBA require d Bullock to exhaust his alternative

- dispute procedures for t his claim or that the Company has other valid defenses , the Court at this point concludes that Plaintiff has done enough to “raise a right to relief above the speculative level , ” even if “recovery is very remote and unlikely.” Twombly , 550 U.S. at 555

- 56 (citing Scheuer v. Rhodes , 416 U.S. 232, 236 (1974)). As a result, it will allow his claim to proceed under Section
301 of the LMRA as pled

.10 IV. Conclusion For the reasons articulated herein, the Cour t will issue a contemporaneous O rder denying
Defendant’s Motion to Dismiss.

/s/ **James E. Boasberg** JAMES E. BOASBERG United States District Judge
Date: October 3 1 , 2016