UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

) NICOLE B. L INDSEY, ) ) P laintif f, )

) v. ) Civil Action No. 09-945 (R MC) ) DISTRICT OF COLUMBIA, ) ) Defendan t. ) )

MEMORAN DUM OP INION Nicole B. L indsey , former ly an officer with the Dis tri ct o f C o l umbia Metropolitan Police Depa

rtment (“MPD” ), was terminated from her job in J anuar y 2005 and orde red r einstated by an arbitra

tor on Fe bruar

y 24, 2006. She returne d to work o n October 14, 2007, and rec eived backpa y from th e Di s t ri ct on Marc h 10, 2008. She sues here under the Fa ir L abor Standards Act (“F L SA”), 29 U.S.C. § 201 et seq. , for pay ment of overtime pay while she was out of work and for damag es beca

use her backpa

y was rec eived so late. The District has moved to dismiss pursuant to Fe dera l Rule of Civil Procedur e 12(b)( 6) or, in the alterna tive, for summary judgme nt. See Dkt. # 6. Whether Ms. L indsey should have been compensa ted for overtime she did not have an opportunity
to work beca

use of an improper discharg e is a question for the arbitra tor to res o l v e. I t is not an FL SA issue. Simi larly , if the District improperly drag g ed its fee t in issuing a backpa y chec k to Ms. L indsey , she may have a contra ct g rieva nce for the Fr ater

nal Orde r of Police to consider; it is not an FL SA issue. The Complaint will be dismiss ed for failure to sta te a claim on which relief might be g rante d.I. F ACTS Ms. L indsey beca

me a police of

fice r on Jul y

11, 1994, and had a

ttained the ra

nk of serg eant when, on J uly 6, 2004, MPD proposed her remova l from employ ment. Compl. ¶¶ 6-7. The proposal was made 321 day s afte r MPD first beca me awa re of the alleg ations of misconduct by Ms. L indsey

. Id. ¶ 7. On J uly 7, 2004, Ms. L indsey soug ht a hearing befor e an M P D Adverse Action Trial Boa rd. Id. ¶ 8. She appea

red befor e the Tri al Bo ar d on October 13, 2004, and rec eived its Final Notice of Adver se Action, rec ommending her termination, on N o v e mb e r 1 9 , 2004. Id. ¶¶ 9-10. The rec ommendation was approve d by former Assistant Chief of MPD Human Service s, Shannon Cockett. Ms. L indsey appea led to the then-Chief of Police, Charles H. Ramsey , on November 29, 2004. Id. ¶ 11. She arg

ued that the termination was inappr opriate be cause it violated a rule under the collective barg aining ag ree ment that requi re d al l adver se actions be taken by MPD within 55 day s of employ ee misconduct. Chief Ramsey denied her appea l on Dec ember 22, 2004, and she was officia lly terminated in January

of 2005. Id. ¶ 12. Throug h the Fr ater

nal Orde r of Police, Ms. L indsey g rieve d and soug ht arbitra tion. The parties selec ted Arbitrator I rwin Socolof f t o h ea r the matter. Id. ¶ 14. I n his decision, the Arbitrator conclude d: “The g rieva nt’s termination is resc inded; she shall be reinstated with backpa y and benefits and restoratio n o f lost promotional opportunities.” Pl.’s Am. Mem. I n Opp’n (“Pl.’s Mem.”) [Dkt. # 14], Ex

. 2 (Arbitra tor’s Opinion and Awar d) at 8. Acting Chief of Police Cathy L an i er approve d the reinstateme nt of Ms. L indsey on September 13, 2007, and also app ro v ed a retroa ctive promoti o n t o the position of L ieutenant. Am. Compl. ¶ 19. Assistant Chief Crockett notified Ms. L indsey of her reinstateme nt by letter dated September 14, 2007. Id. ¶ 20. Ms. L indsey
actua lly returne d to work on Oc tober 14, 2007, a t the rank of lieutenant, with re troac tive seniority

-2-in the position (which was outside the ba rg aining unit). Id. ¶ 21. I n ear ly 2007, prior to her reinstatem en t but following the Arbitrator ’s order , Ms. L indsey attempted to reg ister for the Captain’s promotional examination in the MPD Third District. Id. ¶ 16. She was not permitted to sit for the exam beca use she was not on active d u t y wh en the

exam was administ ere d in April 2007. Id. ¶ 18. As a result, s h e wa s n o t reinstated to a captain’s rank and was not pa id a capta in’s salary

. Id. ¶ 22. Ms. L indsey also claims signific ant amounts of overtime betwee n November 19, 2004, when she was put on paid administrative leave , and October 14, 2007, when she was reinstated. Id. ¶ 23. She states that she ty pically worke d ten (10) hours per day while on normal duty prior to her termination, in addition to various emer g encie s during the time she wa s out of work that re quired a ll officer s to work long er hour s. Id. 24-25.

Ms. L indsey complained about these issues, throug h counsel, to the M P D i n l ate Dec ember 2007. Id. ¶ 28. MPD responde d in Marc h 2008, deny ing that it owed her any additional backpa y , overtime c ompensation, or promotional plac ements. Id. ¶ 29. This suit was filed on May 19, 2 0 0 9

. A First Amended Complaint was filed on October 1, 2009. Count 1 alleg es untimely pay ment of owed back wag es and Count 2 alleg es willful failure to pay

overtime. II. LEGAL STANDARDS A motion to dismiss pursuant to Fe dera l Rule of Civil Procedur e 12(b)( 6) challeng es the adequa cy of a complaint on its fac e, testing whether a plaintiff has proper ly stated a claim. Fe dera l Rule of Civil Procedur e 8(a) require s that a complaint contain “a short and plain statement of the claim showing that the pleade r is e ntitled to relief .” Fe d. R. Civ. P. 8(a)

. A complaint must be sufficient “to give a defe ndant fair notice of wh at the .

. . claim i s and the g rounds upon which

-3-it rests.” Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (20 0 7 ) (i n t er n al citations omitted).

Although a complaint does not ne ed detailed fac tual alleg ations, a plaintiff’s obliga tion to provide the g rounds of his entitlement to relief “re quires more than labels and conclusions, and a formulaic

rec itation of the elements of a cause of action will not do.” Id. The fac ts a lleg ed “must be enoug h
to raise a rig ht to relief above the specula tive level.” Id

. Rule 8(a) require s an actua l showing and
not just a blanket asser

tion of a ri gh t t o relief

. Id. at 555 n.3. “[A] complaint needs some information about the c ircumstance s g iving r ise to the claims.” Aktieselsk abet Af 21. Nov. 2001 v. Fame J eans, Inc

. , 525 F.3d 8, 16 n.4 ( D.C. Cir. 2008) (empha sis in original). I n deciding a motion under Rule 12(b)( 6), a court may consider the fac ts alleg ed in the complaint, documents attache d to the complaint as exhib its or incorporated by ref ere nce, and
matters about which the court may take judici al n o t i ce. Abhe & Svoboda, Inc. v. Chao , 508 F.3d 1052, 1059 (D.C. Cir. 2007)

. To survive a motion to dismiss , a complaint must contain suffic ient fac tual matter, a cce pted as true , to sta te a claim for relief that is “plausible on its face .” Twombly , 550 U.S. at 570. When a plaintiff pleads fac tual content that allows the court to draw the rea sonable i n fe re n ce that the defe ndant is liable for the misconduct alleg ed, then the claim has fac ial plausibilit y . Ashcroft v. Iqbal , 129 S. Ct. 1937, 1949 (2009). “The plausibilit y standard is not akin
to a ‘proba

bility require ment,’ but it asks for more than a sheer possibili ty that a defe ndant has acte d unlawfully .” Id

.

A court must trea t the complaint’s fac tual alleg ations as true, “eve n if doubtful i n fac t.” Twombly , 550 U.S. at 555. But a court need not a cce pt a s true leg al conclusions set forth in a complaint. Iq b a l , 1 29 S. Ct. at 1949. “Thre adbar e recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice .” Id

. “While leg al conclusions can provide

-4-the framework of a complaint, they must be supported by fac tual alleg ations. When there are wellpleade d fac tual alleg ations, a court should assume their vera city and then d et er m i n e whether they plausibly g ive rise to an e ntitlement to relief.” Id . at 1950. III. ANALYSIS Ms. L indsey complains that MPD failed “to pay her lawfully require d overtime compen s at i o n [ and] other rela ted compensa tion and benef its following her reinstateme nt

. . . on October 14, 2007.” Am. Compl., I ntroduction. Ms. L indsey ’s rig ht to reinstateme nt to active duty

a t M PD r e s te d entirely on Arbitrator Socoloff’s decision, which interpre ted and applied the c o ll e c ti v e barg aining ag ree ment betwee n the Fr at erna l Orde r of Police and MPD. See Pl.’s Mem., Ex

. 2 (Arbitra tor’s Opinion and Award)

. I t is Arbitrator Socoloff’ s order which entitled Ms. L indsey to “bac kpay and benef

its and restora tion of lost promotional opportun i t i es . ” Id

. , Ex

. 2 at 13. The FL SA require s that employ ees be compensa ted for overtime worke d, 29 U.S.C. § 207(a) , howeve r, whether the Arbitrator intended backpa y to include normal and customary overtime is not clea r from his decision. Unless he order ed such a reme dy , Ms. L indsey is not entitled to it. Certainly nothing in the FL SA require s the MPD, as a matter of fede ral law, to pay her overtime for time not actua lly worke d. I f there is any

confusion in the par

ties’ minds as t o the s cope of the Arbitrator’s remedy , only a question to him can a llay it. Simi larly , whi l e t h e FLSA require s employ ees to be paid their wag es on a timely basis, the timing of a chec k for backpa y arising from an arbitra l awa rd d ep en ds on, in the first instance, any contra ct require ments or, in the second instance, a succe ssful g rieva nce claiming that MPD was intolerably and unrea sonably slow. Even though Ms. L indsey was reinstated to a non-unit position as a lieutenant, she was in the barg aining unit during the months she awa ited reinstateme nt.

-5-An arbitra tor might deter mine that she has standing to pursue such a g rieva nce, if timely lodge d. The Court does not opine one way or the other, since it would be a matter of interpre tation of the collective barg aining ag ree ment and th e p arties’ past prac tices, which are committed by the g rieva nce/a rbitration provisions of the collective barg aining ag ree ment to an arbitra tor’s judgme nt. See United Steelworkers of Ameri ca v. E n terprise W heel & Car Corp. , 363 U.S. 593, 599 (1960) (“[T]he question of interpre tation of the collective barg aining ag ree ment is a question for the arbitra tor. I t is the arbitra tor's co nstruction which was barg ained for; and so far as the arbitra tor' s decision conce rns construction of the contra ct, the courts have no business overr uling him beca

use their interpre tation of the contra ct is differ ent from his.”). There is nothing in fede ral statutory law that require s an ar

bitration backpa

y awa rd to be issued within a time ce rtain. IV. CONCLUSION Ms. L indsey ’s First Amended Complaint complains of matters peculiar ly within the ambit of the collective barg aining ag ree ment’s g rieva nce and arbitra tion proce dure, not the FL SA. Be cause the Complaint fails to state a claim upon which relief can be g rante d, it will be dismiss ed. A memorializing Or der a ccompa nies this Memorandum Opinion.

Date: Apr il 23, 2010 /s/ ROSEMARY M. COL L YER United States District J udg e

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