1 

### UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) ROGER WILLIAMS , ) ) Plaintiff, ) ) v. ) Civil Action No. 15-cv-596 (TSC) ) AMALGAMATED TRANSIT UNION LOCAL 689 , et al., ) ) ) Defendants. ) ) )

MEMORANDUM OPINION Plaintiff Roger Williams is a Washington Metropolitan Area Tran sit Authority (“WMATA”) bus operator and a member of the Amalgamated Transit Union Local 689 (“Union”). WMATA and the Union ar e parties to a Collective Bar gaining Agreement (“CBA”), and Plaintiff alleges that WMATA violated the terms of the CBA when it accused him of violating its periodic drug testing guidelines a nd subsequently suspended him . He further alleges that the Union breached its duty of fair representation by fail ing to take the matte r to arbitration and instead entering into a set tlement agreement without his kn owledge and without an investigation. WMATA and the U nion have moved for dismissal of Plaintiff’s lawsuit. For the reasons set forth belo w, the court will GRANT both motions.
I. BACKGROUND Plaintiff is a WMATA bus driver who, on March 15, 2013, receive d a letter from WMATA scheduling a Department of Transportation (“DOT”) require d medical examination for March 18, 2013. (Am. Compl. ¶¶ 17–19) . Plaintiff appeared for the examination and, prior to2 leaving, received WMATA documents indicating that his “evaluati on [wa]s complete” and that he was approved for return to dut y without restrictions. (Am. Compl. ¶¶ 21–23; Pls. Resp. to Union Mot. at Ex. A.). After leav ing the medical examination, however, he received a telephone call from one of the staff members at the medical facility info rming him he needed to return to finish a urine drug test. (U nion Ex. 1). Approximately five m inutes later, Plaintiff received another telephone call from the medical facility informing him that everything was fine and there was no need for him return. ( Id. ) The following day, March 19, 2013, WMAT A issued a Memorandum to the Plaintiff telling him that he was being s uspended without pay for 180 day s because he violated “WMATA Policy/Instruction: P/17.21/4.17( B) Refusal to Test,” by failin g to “[r]emain at the testing site until the [drug] testing process [w]as completed.” (Pls. Resp. to Union Mot. at Ex. B). As a result of this alleged failure , Plaintiff was suspended and WMA TA required that he enroll in the Employee Assistance Program (“EAP”) or face discharge. ( Id. ; Am. Compl. ¶¶ 25, 27). Plaintiff enrolled in the EAP, w hich required that he attend su bstance abuse education twice a week and submit t o periodic drug testing. ( Id. ¶¶ 30–32). He attended the education programs, passed all of his four teen drug tests, and returned t o work sometime after July 31, 2013. ( Id. ¶¶ 33–36). Around the time he enrolled in the EAP, Plaintiff filed a grie vance over the suspension based on WMATA’s finding that he h ad refused to comply with the drug testing policy. (Union Ex. 1). The Union did not communicat e with Plaintiff about th e grievance until approximately one year later, on March 13, 2014, when he was notified that th e grievance had been settled, but was not told the terms of the s ettlement. (Pls. Resp. to Union Mot. at Ex. D., Williams Decl.; Am. Compl. ¶ 41). Plaintiff advi sed the Union that anything le ss than exoneration was3 unacceptable. (Pls. Resp. to Union Mot. at Ex. D., Williams De cl.). Nonetheless, WMATA subsequently deposited the settlement proceeds ($8,434.11) in h is bank account. ( Id .; Am. Compl. ¶¶ 44–45). On July 28, 2014, Plaintiff’s attorney sent a letter to WMATA contesting the suspension and rejecting the se ttlement. (Am. Compl. ¶¶ 48–51). Included with the letter was a cashier’s check in the amount of the settlement. ( Id. ) A WMATA representativ e signed for the letter on July 30, 2014. ( Id. ¶ 52). The check was never retu rned to Plaintiff and the Unio n failed to respond to his “numerous inquiries ” about his rejection of the settlement. ( Id. ¶¶ 53–54). The parties do not indicate whether WMATA endorsed the check. More than six months later, on March 16, 2015, Plaintiff filed a complaint against WMATA and the Union in District of Columbia Superior Court, ass erting claims for negligence, intentional infliction of emoti onal distress, breach of fiducia ry duty, fraud, conspiracy, and negligent supervision and t raining. (ECF No. 1at ECF pp. 3–15) . The Defendants removed the action to this court and Plaint iff subsequently obtained leave to amend his complaint. In his Amended Complaint, Plaintiff rais es twelve claims, which he app ears to assert pursuant to state law. 1 The Union seeks dismissal of t his action pursuant to Federal Rule of Civil Procedure 12(b)(6), and WMATA seeks dism issal pursuant to both 12(b)(6) a nd 12(b)(1). 2

1 Even though Plaintiff did not c ite to any statutory or commo n law in his Amended Complaint, his claims appear to be brought und er state law, save for his d uty of fair representation claim.

2 Given the court’s dismissal of this action on timeliness gro unds, the court declines to reach WMATA’s 12(b)(1) jurisdictional argument asserted as a defense to some of Plaintiff’s claims. See Fed. R. Civ. P. 12(b)(1); Watters v. WMATA, 295 F.3d 36, 39–40 (D.C. Cir. 2002) (where sovereign immunity applies, a dist rict court lacks jurisdiction ).4 II. LEGAL STANDARDS A motion to dismiss under Rule 12(b )(6) for failure to state a claim “tests the legal sufficiency of a complaint.” Browning v. Clinton , 292 F.3d 235, 242 (D.C. Cir. 2002). “To survive a motion to dismiss, a com plaint must contain sufficien t factual matter, accepted as true, to state a claim to relief th at is plausible on its face.” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (internal quotation marks and cit ation omitted). In most insta nces, when deciding a Rule 12(b)(6) motion, a court may “cons ider only the facts alleged i n the complaint, any documents either attached to or incorporate d in the complaint and matters of which [the Court] may take judicial notice.” EEOC v. St. Francis Xavier Parochial Sch. , 117 F.3d 621, 624 (D.C. Cir. 1997). Additionally, “the Court may consider documents specifi cally referenced in the complaint where the authentic ity of the document is not questio ned.” United Mine Workers of Am., Int’l Union v. Dye , No. CIV.A. 06-1053(JDB) , 2006 WL 2460717, at *6 (D.D.C. Aug. 23, 2006); see also N.Y. State Bar Ass’n v. FTC , 276 F. Supp. 2d 110, 114 n.6 (D.D.C. 2003) (noting that “a document is not ‘outside’ the complaint if the complain t specifically refers to the document and if its authenticity is not questioned”) (quoting Cooper v. Pickett , 137 F.3d 616, 622–23 (9th Cir. 1997)).
III. ANALYSIS
A. Hybrid Section 301 Claims & Preemption Although Plaintiff does not explic itly assert a federal hybrid Section 301/fair representation claim, the court c onstrues his complaint as alle ging such because he charges WMATA “with breach of the collective bargaining agreement and c harges the union with breaching its statutory duty of fair representation.” See Simmons v. Howard Univ. , 157 F.3d 914, 916 (D.C. Cir. 1998) (citing DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 165 (1983)).5 If a plaintiff brings such a cl aim along with state law claims based on similar conduct, the court must examine whether the state law claims are preempted by the hybrid Section 301 claim. See
Brown v. Gino Morena Enters. , 44 F. Supp. 2d 41, 50 (D.D.C. 1999) (“[T]he Court must first determine whether plaintiff’s [s tate law claims] are indeed pen dent claims or whether they are preempted by § 301.”) (citing Lingle v. Norge Div. of Magic Chef, Inc. , 486 U.S. 399, 405–06 (1988)); see May v. Shuttle, Inc. , 129 F.3d 165, 179 (D.C. Cir. 1997). As a court in this distr ict has noted: A plaintiff . . . cannot wiggle out from under the shadow of th e [federal labor law statute] through clever pleadi ng—for example, by framing a clai m as a breach of contract rather than an unfair labor practice. “Pre-emption is designed to shield the system from conflicting regulation of conduct

. It is the conduct being regulated, not the formal description of gove rning legal standards, that i s the proper focus.”
Jackson v. Teamsters Local Union 922 , 991 F. Supp. 2d 71, 78 (D.D.C. 2014) (emphasis in original) (citations and alterations omitted).
1. Preempted Claims Asserted Against WMATA Plaintiff’s claims against WMATA include

 breach of contract (e.g., WMAT A breached the CBA by lodging unf ounded allegations against Plaintiff a nd disciplining him; WMATA enter ed into a settlement agreement even though it knew the refusal to test al legation was false) (Am. Compl. ¶¶ 77–78);

 wrongful suspension (e.g., WMATA suspended Plaintiff even thoug h he had fully complied with the WMATA DOT physic al examination requirements) ( Id. ¶ 88)

 negligence (e.g., WMATA failed t o employ necessary and reasonab le measures when it made a notation on the E AP form that he had refused to test; WMATA carelessly and recklessly suspende d Plaintiff even though he fu lly complied with the WMATA DOT physical exam ination requirements) ( Id. ¶¶ 108, 110);

 fraudulent concealment (e.g., W MATA and the Union fraudulently concealed non-action on the plaintiff’s reque st to reject the Settlement Agreement) ( Id. ¶ 218).6 The Supreme Court has held tha t “when resolution of a state-law claim is substantially dependent upon analysis of the ter ms of an agreement made betwe en the parties in a labor contract, that claim must eith er 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) (citation omitted). All of Plaintiff’s claims aga inst WMATA are founded on Plaintif f’s assertion that WMATA violated the CBA by: (1) lodgi ng unfounded allegations against him that he had violated the WMATA drug testing policy, despite evidence that he complied wi th all applicable requirements; (2) wrongfully s uspending him; and (3) entering i nto a settlement agreement with the Union. As such, these claim s are “substantially dependent upon analysis of the terms of [the CBA]” and, therefore, must be tre ated as Section 301 claims. See id. Accordingly, the court will treat Plaintiff’s claims again st WMATA as Section 301 claims.
2. Preempted Claims Asserted Against Local 689 In Section 301 hybrid cases, state l aw “claims [asserted agains t the union] are preempted [if] they do not ‘arise wholly out side the ambit of those oblig ations circumscribed by a union’s duty of fair representation under the collective bargaining agr eement.’” Hollie v. Smith , 813 F. Supp. 2d 214, 218 (D.D.C. 2011) (citing Condon v. Local 2944, United Steelworkers of Am., AFL-CIO, 683 F.2d 590, 595 (1st Cir. 1982)); see also May v. Shuttle, Inc., 129 F.3d 165, 179 D.C. Cir. 1997) (agreeing that “t he federal duty of fair repres entation preempts identical state law claims”). A union breaches its statutory duty to represent its members when the union’s actions are “arbitrary, discri minatory, or in bad faith.” Plumbers & Pipe Fitters Local Union No.
32 v. NLRB , 50 F.3d 29, 31 (D.C. Cir. 1995) (citing Vaca v. Sipes, 386 U.S. 171, 177, (1967)). Plaintiff’s claims aga inst the Union include:7  Breach of Duty of Fair Represen tation (“DFR”) (e.g., the Union’ s representation of Plaintiff was deficient and fa iled to protect Plaintiff’s right s; the Union acted in an arbitrary manner) (Am. Compl. ¶¶ 171, 177);

 Intentional Infliction of Emoti onal Distress (“IIED”)(e.g., Pla intiff suffered severe emotional distress as a result of the Union’s failure to fairly represent him; because of the Union’s careless, reckless and arbitrary conduct, Plaintiff was injured and subjected to severe stress and emotional distress ) ( Id. ¶¶ 119, 120); 3

 Breach of Contract (e.g., the Uni on did not fairly represent Pl aintiff; the Union “breached its duty to fairly represent the Plaintiff by enterin g into a covert agreement with WMATA adverse to the p laintiff’s interests”) ( Id. ¶¶ 131, 133);

 Breach of Fiduciary Duty (e.g., t he Union breached its fiduciar y duty by failing to interview pertinent witnesses; the Union br eached its fiduciary duty by failing to communicate with Plaintiff after he rejected the Settlement and failing to reopen the grievance proceedings) ( Id. ¶¶ 143–145, 148);

 Fraud (e.g., the Union failed t o effectively advocate on Plaint iff’s behalf during the grievance process; the Union d eceived Plaintiff and fraudulentl y entered into a Settlement Agreement) ( Id. ¶¶ 200, 210–11);

 Fraudulent Concealment (e.g., WMATA and the Union fraudulently concealed inaction on Plaintiff’s request to reject the Settlement Agreem ent) ( Id. ¶ 218);

 Negligent Supervision and Train ing (e.g., the Union failed to p revent Plaintiff’s union representative from acting in a n arbitrary and capricious manne r; the Union failed to adequately supervise Plaintiff’ s union representative and preve nt him from acting recklessly) ( Id. ¶¶ 222, 224). Although not identified b y statute or case law, Plaintiff’s DFR claim against the Union is by definition an element of a hybrid Section 301 claim. See Simmons , 157 F.3d at 916 (explaining that hybrid Section 301 claims involve allegations that the employer breached the CBA combined with allegations tha t the union breached its statu tory DFR). Accordingly, Plaintiff’s DFR claim is not preempted.

3 Although Plaintiff lists the “unio n” in the title for his IIED count, the last paragraph under this counts states that “[t]he plain tiff’s emotional stress and dist ress derived solely from the actions taken by WMATA.” (Am. Compl. ¶ 126). In any event, whether or not Plaintiff asserted the IIED claim against WMATA or the Union, the outcome is still the same: the claim is preempted.8 The remaining claims—though labeled otherwise—are essentially t he same as Plaintiff’s DFR claim; they are all premised on the notion that the Union v iolated its DFR by handling Plaintiff’s grievance in bad f aith, as well as in an arbitrary or discriminatory manner. 4 As such, these claims do not “arise wholl y outside the ambit” of the Uni on’s duty of fair representation and therefore the claims are preempted. See Hollie , 813 F. Supp. 2d at 218. 5
B. Statute of Limitations Hybrid Section 301 “claims are subj ect to the six month statute of limitations . . . which begins to run when ‘the claimant discovers, or in the exercise of reasonable diligence should have discovered, the acts consti tuting the alleged violation.’” Simmons , 157 F.3d at 916 (citations omitted). Accordingly, “[w]here a union rejects or abandons the claims of an

4 Plaintiff also brings a conspir acy claim against both Defend ants, alleging that they conspired to deny him the opportunity to full y pursue his grievance. (Pl s. Response to Union’s Mot. p. 10; id . at Ex. C). This claim is preempted because it depends on int erpretation of the CBA and application of the Union’s DFR. Moreover, even if the claim were not preempted, it would s till fail because in the District of Columbia, an underlying tort claim is necessary to support a co nspiracy claim. Blakeney v. O’Donnell , 117 F. Supp. 3d 6, 14 (D.D.C. 2015) (“The District is correct that civil conspiracy is not an independent tort. . . . A cla im for civil conspiracy th us fails unless the elements of [an] underlying tort are satisfied.” ) (citations and quotations omit ted).

5 The IIED, fraud, and fraudulent concealment claims are also subject to dismissal because Plaintiff has not pled sufficien t facts to support these claims

. See Elhusseini v. Compass Grp. USA, Inc., 578 F. Supp. 2d 6, 23 (D.D.C. 2008) (quoting McManus v. MCI Commc’ns Corp., 748 A.2d 949, 958 (D.C. 2000) (“IIED claims require extreme and out rageous conduct by the defendant, and “[i]n the employmen t context, to constitute extr eme and outrageous conduct, the conduct must be ‘so outrageous i n character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community.’”); Fed. R. Civ. P. 9( b) (“In alleging fraud or mist ake, a party must state with particularity the circumstances constituting fraud or mistake.” ); McQueen v. Woodstream Corp ., 248 F.R.D. 73, 77 (D.D.C. 2008) (“[T]he circumstances that the claimant must plead with particularity include matters such as the time, place and conte nt of the false misrepresentations; the misrepresented fact; and w hat the opponent retained or the claimant lost as a consequence of the alleged fraud.”) (citation omitted).9 aggrieved employee at some point i n the grievance process, the six month limitation[s period] runs when the employee knows or , through the exercise of reason able diligence, should have known of that union’s decision or action.” Cash v. Washington Metro. Area Transit Auth. , No. CIV.A. 04-0013(RWR), 2005 WL 69 49855, at *2–4 (D.D.C. Jan. 13, 2005) (citing Lucas v. Mountain States Tel. & Tel., 909 F.2d 419, 421 (10th Cir. 1990)) (alterations omitted). Defendants argue that Plaintiff’s lawsuit is untimely because h e filed it after the six month limitations period had run. I t is undisputed that the Un ion notified Plaintiff that it had settled his grievance on or around March 13, 2014. (Pls. Resp. to Union Mot. at Ex. D, Williams Decl.; Am. Compl. ¶ 39). While the timing is unclear, it appea rs that he later l earned the terms of the agreement and he advised h is Union representative that h e rejected the settlement offer. ( Id. ¶ 42). Despite his r ejection of the offer, WMATA later deposi ted the settlement proceeds in his bank account; the date of t his occurrence is unclear. ( Id. ¶¶ 44–45). “As a result of the Union’s lack of action regarding the plaintiff’s rejection of t he settlement,” Plaintiff took matters into his own hands and, on Jul y 28, 2014, his attorney returned the settlement funds to WMATA. ( Id. ¶¶ 47–48). In the accompanying l etter, Plaintiff’s counsel in dicated that Plaintiff still contested the suspension, that the settlement had been reached without Plaintiff’s consent, and that Plaintiff was returning the settlement proceeds as a rejec tion of the settlement offer. ( Id. ¶¶ 49–50). On July 30, 2014, a WMATA repre sentative signed for th e package that included the letter and the check. ( Id. ¶ 52). After WMATA received the check, the Union never respon ded to Plaintiff’s “numerous inqui ries” about the matter. ( Id. ¶¶ 53–54).10 The six month limitations peri od began to run after Plaintiff r eturned the check on July 30, 2014. Thus, Plaintiff had until on or around January 30, 2 015 6 to file a timely lawsuit, but he waited until March 16, 2015—more tha n one and a half months lat er. Plaintiff proffers several ar guments in an effort to save his c laim, all of which are unavailing. First, citing DelCostello v. International Brotherhood of Teamsters , 462 U.S. 151 (1983), Plaintiff argues that the six month statute of limitati ons does not apply to this case, but rather the District of Columbi a three-year limitations period f or breach of contract cases. Plaintiff’s argument ignores th e issue presented and the holdin g in DelCostello . In that case, the Supreme Court addresse d the question of the appropria te statute of limitations for lawsuits “by an employee or employees against an employer and a union, alleging that the employer had breached a provision of a collective bargaining ag reement, and that the union had breached its duty of fair representation by mishandling the ens uing grievance-and-arbitration proceedings.” Id. at 154. The Court concluded th at “§ 10(b) [of the National La bor Relations Act—which provides for a six-month limitations period] should b e the applicable statute of limitations governing the suit, bot h against the employer and a gainst the union.” Id. at 155;
Simmons , 157 F.3d at 916 (“[H]ybrid § 301/fair r epresentation claim[s] . . . are subject to the sixmonth statute of limitations pr ovided in § 10(b) of the Nationa l Labor Relations Act, 29 U.S.C. § 160(b).”) (citations omitted). Thus , the District of Columbia three-year statute of limitations period for breach of contract cla ims does not apply in this cas e, which involves hybrid Section 301 claims.

6 The court notes that the Nationa l Labor Relations Act specif ically provides for a “six month,” rather than 180-day limitations period. See Ifill v. N.Y. Stat e Court Officers Ass’n , 655 F. Supp. 2d 382, 394 (S.D.N.Y. 2009) (“Courts have generally construed the six-month limitations period found in 29 U.S.C. § 160(b) to refer to six calendar months rat her than 180 days.”) (citing Dowty v. Pioneer Rural Elec. Coop., 573 F. Supp. 155, 158 n.2 (S.D. Ohio 1983)).11 Next, Plaintiff quotes Smith v. Washington Post Co ., 962 F. Supp. 2d 79, 86 (D.D.C. 2013), in which the court noted that wrongful acts or breaches of duty which occur in distinct intervals or i nstallments, as opposed to being continuous, cause distin ct and severable injuries. Con sequently, each breach gives rise to new and separate cause of action and the s tatutes of limitations in both jurisdictions run separately for each. ( See Pls. Resp. to Union Mot. at ECF p. 6) (citing Smith , 962 F. Supp. 2d at 86) (citing Union Labor Life Ins. Co. v. Sheet Metal Workers Nat. Health Plan, Civ. No. 90–2728(RCL), 1991 WL 212232 (D.D.C. Sept. 30, 1991)).
Smith involved allegations that the defendant had breached a contrac t, over a period of at least four years, by unila terally changing the terms of the con tract. ( Id .) Even though Smith filed his lawsuit more than three years after the first breach, the court refused to dismiss the case because it was unclear from the complaint whether Smith had all eged one breach involving unilateral contract changes, or multiple breaches, including so me that may have occurred within the limitations period. Smith, 962 F. Supp. 2d at 85–86. The court therefore found that it c ould not conclusively determine that t he complaint was time barred b y the District of Columbia statute of limitations f or breach of contract. Id . at 86. Here, Plaintiff does not make a llegations similar to those in Smith and, unlike Smith , Plaintiff’s case does not involve viable state law breach of co ntract claims. Moreover, to the extent Plaintiff seeks to rel y on a “continuing violation theor y,” if that were possible in this context, he must support his theo ry with citation to federal le gal authority, rather than state law. See Himmelstein v. Comcast of the Dist., L.L.C. , 931 F. Supp. 2d 48, 60 (D.D.C. 2013) (“When interpreting a federal statute, f ederal courts apply the federa l standards of cons truction, not those applied by state courts.”) (citing Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 43, (1989)) (some citations omitted).12 Next, Plaintiff argues that the statute of limitations “has not expired because of the Union’s inaction over a period of t ime and the Union’s breach o f the [CBA].” (Pls. Resp. to Union’s Mot. p. 8). Plaintiff al so argues that he did not beco me aware that the Union would “take no further action on his gr ievance” until after he filed this lawsuit and saw the actual settlement document attached to the Union’s motion to dismiss. (Pls. Resp. to WMATA’s Mot. p. 7). Plaintiff’s arguments are mys tifying because the filing of this lawsuit, in which Plaintiff clearly asserts a “duty of fair representation” claim, establis hes that Plaintiff became aware that the Union was not going to pursue his grievance long before the Union filed its motion to dismiss. See Simmons , 157 F.3d at 916 (citations omitted) (noting that filing a DFR claim establishes that Plaintiff “has by then, as a matter of law, ‘d iscovered’ the grounds for his hybrid § 301 claim”). Alternatively, Plaintiff asks thi s court to exe rcise its equita ble power and toll the limitations period. While “a de fendant bears the burden of ple ading and proving [the Plaintiff’s] failure to . . . timely file an act ion in court, once defendan t’s burden has been met, a plaintiff must establish his eligibility to invoke equitable tolling.” Gupta v. Northrop Grumman Corp ., 462 F. Supp. 2d 56, 59 (D.D.C. 2006) (citing Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997)); Saltz v. Lehman, 672 F.2d 207, 209 (D.C. Cir. 1982) (some citations omitted). The D.C. Circuit has made clear tha t “[t]he court’s equitable power to toll the statute of limitations will be exercised only in extrao rdinary and carefully circumscr ibed instances.” Mondy v. Sec’y of the Army, 845 F.2d 1051, 1057 (D.C. Cir. 1988). For example, the limita tions period “may be tolled when the plaintiff is f raudulently induced to delay fili ng his suit,” Simmons, 157 F.3d at 917 (citations omitted), or where “affirmative misconduct on th e part of a defendant lulled the13 plaintiff into inaction.” Mondy , 845 F.2d at 1057. The court finds t hat Plaintiff has not met either of these conditions.
1. Equitable Tolling Arguments Based on WMATA’s Conduct. Plaintiff argues that the lim itations period should be equitabl y tolled because WMATA engaged in affirmative misconduct that prevented him from pursu ing his administrative remedies. (Pls. Response t o WMATA’s Mot. p. 7) (citing Dove v. Washington Metro. Area
Transit Auth. , 402 F. Supp. 2d 91 (D.D.C. 2005), aff'd, No. 05-7118, 2006 WL 7136123 (D.C. Cir. Mar. 13, 2006)). Specificall y, he charges WMATA with:

 “[I]nitiating a settlement wit h the Union on the plaintiff’s be half despite the plaintiff’s rejection of the settlement” (P ls. Response to WMATA’s Mot. pp. 7-8);

 Failing to notify Plain tiff of the settlement. (Pls. Response to WMATA’s Mot. p. 8);

 Failing to comply with its own grie vance procedures, which mand ate that WMATA obtain an employee’s written autho rization to secure Social Sec urity records for purposes of verifying income when t he employee’s grievance is r esolved with an award of retroactive pay in ex cess of one month. (Pls. Respons e to WMATA’s Mot. pp. 7-8) (citing Pls. Resp. to WMATA’s Mot. at Ex. A, CBA excer pts);

 Violating the CBA, which provides that an employee who is suspe nded “without sufficient cause” “shall be paid f or the time lost at the emplo yee’s regular rate during such suspension.” (Pls. Resp. to WMATA’s Mot. p. 8). Plaintiff argues that these all egations amount to “extraordinar y circumstances,” justifying equitable tolling in this case . (Pls. Resp. to WMATA’s Mot. p. 9). The court disagrees because, eve n if Plaintiff is right that W MATA violated the CBA in each of these instances, nothing a bout WMATA’s conduct excuses his failure to file his lawsuit within the six month limitati ons period. Plaintiff became awar e of the settlement on or around March 2014. While it is unclear how much he knew about the ter ms of the settlement in March 2014, it is undisputed that WMATA received Plaintiff’s rejectio n letter, along with the cashier’s check on July 30, 2014 and apparently never endorsed the check or otherwise responded.14 Plaintiff filed his lawsuit se ven and one-half months later, bu t gives no reasonable explanation for missing the six month limitati ons deadline. WMATA’s failur e to respond to Plaintiff’s letter and return of the settlement f unds did not prevent Plaintiff fr om filing a timely lawsuit, and without some evidence that WMAT A “fraudulently induced [Plainti ff] to delay filing his suit,” or that WMATA engaged in some “affirmative misconduct [that] lu lled the plaintiff into inaction,” Plaintiff has no basis for equitable tolling on his claims. Simmons, 157 F.3d at 917; Mondy , 845 F.2d at 1057.
2. Equitable Tolling Based on the Union’s Conduct Plaintiff argues that the lim itations period should be equitabl y tolled because the Union’s failure to keep him apprised of t he grievance and settlement pr oceedings prevented him from determining whether the Union f ollowed proper grievance procedu res or engaged in affirmative misconduct. (Pls. Resp. to Union’ s Mot. pp. 8-9). He also arg ues that tolling is justified because the Union never took any action t o renegotiate the settlement. (Pls. Resp. to Union’s Mot. p. 7- 8). Plaintiff’s arguments are ag ain unavailing. He has not explain ed how the Union’s failure to keep him apprised of the grie vance and settlement process ex cuses his untimely lawsuit. By the time he returned the check t o WMATA, Plaintiff clearly was aware of the results of the grievance negotiations; the quest ion simply becomes when a reas onable person would have realized that the Union had “ reject[ed] or abandon[ed]” his cau se. See Cash , 2005 WL 6949855, at *2; see Delaney v. District of Columbia , 612 F. Supp. 2d 38, 42 (D.D.C. 2009) (“The statute of limitations begins running whe n a plaintiff knew or should have known that the union had stopped pursuing his grievance.”) (citing Cephas v. MVM, Inc., 520 F.3d 480, 488 (D.C. Cir. 2008)). That moment should have c ome shortly after Plaintiff r eturned the check and the Union15 refused to respond to his inquires . Instead, Plaintiff waited seven and one-half months after he returned to the check to file his lawsuit, well after expiratio n of the six month limitations period. Moreover, the result here does not change simply because Plaint iff made “numerous,” (Am. Compl. ¶ 54), unsuccessful inquiries to the Union in an at tempt to reject the settlement agreement. If repeated attempts to reopen a grievance proceedi ng or reopen settlement negotiations “were to perpetually toll the statute of limitatio ns” despite reasonable indications that such attempts were futile, “the statutory time bar would b e illusory.” Plain v. AT & T Corp. , 424 F. Supp. 2d 11, 22–23 (D.D.C. 2006) (re jecting tolling argu ment where employer promised in November that it would review plaintiff’s termination appeal and she continued to request reinstatement, but received no indi cation from the employer or the union after November that her appeal was being pursued or ha d been reopened) (citing Vadino v. A. Valey Eng’rs , 903 F.2d 253, 262–63 (3d Cir. 1990)). Finally, this is not a case wher e the Union “fraudulently induc ed [Plaintiff] to delay filing his suit.” Simmons , 157 F.3d at 917 (citing Demchik v. General Motors Corp., 821 F.2d 102, 105 (2d Cir. 1987)). “Failure to return phone calls does not c onstitute affirmative misconduct that would give rise to equitable tolling.” Delaney v. District of Columbia, 612 F. Supp. 2d 38, 43 (D.D.C. 2009). Although the Uni on’s conduct in not respondi ng to Plaintiff’s inquiries may have been improper, under the fact s presented here, the Union’s conduct did not prevent Plaintiff from “discover[ing] . . . the acts constituting the alleged vio lation” within the limitations period.
See Simmons , 157 F.3d at 916. In other words, Pla intiff has not proffered any facts which might establish that—despite his due diligence—he was unable to bring suit within the statutory period. See Dove v. Washington Metro. Area Transit Auth. , 402 F. Supp. 2d 91, 98 (D.D.C. 2005), aff'd,16 No. 05-7118, 2006 WL 7136123 (D.C. Cir. Mar. 13, 2006)). Accor dingly, he has not met his burden of establishing that equita ble tolling is appropriate in this case.
IV. CONCLUSION While the court takes no position on whether Plaintiff would ha ve been successful, his hybrid Section 301 claim could have s urvived Defendants’ motion s to dismiss had he filed it in timely manner. 7 By waiting too long to file suit, d espite being aware that th e Defendants had taken actions which form the ba sis of his claim, he failed to d iligently protect his rights. Accordingly, the court will grant the Defendants’ motions to di smiss. 8

Date: March 29, 2017 

## Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge

7 The Union has an obligation “to s erve the interests of all m embers without hostility or discrimination toward any, to exerc ise its discretion with comp lete good faith a nd honesty, and to avoid arbitrary conduct.” Vaca v. Sipes, 386 U.S. 177 (1967). It bre aches its duty of fair representation when its “conduct toward a mem ber of the collect ive bargaining unit is arbitrary, discriminatory, or in bad faith.” Id. at 191. Thus, “a union acts in an ‘ arbitrary’ manner when it processes a grievance in a perfunctory fashion . . . or fails t o conduct a minimal investigation of a grievance.” Clark-Williams v. Washington Metro. Area Transit Auth. , No. CV 14-99 (RDM), 2016 WL 4186810, at *6 (D.D.C . Feb. 16, 2016) (quotations and a lterations omitted) (quoting Vaca , 386 U.S. at 191; Peterson v. Kennedy , 771 F.2d 1244, 1245 (9th Cir. 1985)). Viewing the facts in the light most favorable to Plaintiff, the court finds that, absent the untimely filing, his Complaint cont ains allegations sufficient to support a hybrid Section 301 claim—at least in the face of the substantive arguments in the current motions to dismiss.

8 Plaintiff contends that dismi ssal of this action is inapprop riate because he has not had an opportunity to take discovery, ( Pls. Resp. to Union’s Mot. pp. 9-10), but Plaintiff has not explained how anything he might find during discovery would jus tify his failure to file suit within the limitations period.