Alston v. Balt. Gas & Elec. Co.

• Decision Date: 01 February 2023
• Docket Number: Civil Action ELH-22-1061
• Court: U.S. District Court — District of Maryland
• Parties: KEVIN ALSTON, et al., Plaintiffs, v. BALTIMORE GAS & ELECTRIC COMPANY, et al., Defendants.

KEVIN ALSTON, et al., Plaintiffs,
v.
BALTIMORE GAS & ELECTRIC COMPANY, et al., Defendants.

Civil Action No. ELH-22-1061

United States District Court, D. Maryland

February 1, 2023

MEMORANDUM OPINION

Ellen L. Hollander, United States District Judge

This employment discrimination case was initially filed in the Circuit Court for Baltimore City (“Circuit Court” or “State Court”) on June 4, 2021, by plaintiff Kevin Alston. He sued his former employer, Baltimore Gas & Electric Company (“BGE”); BGE's parent company, Exelon Corporation (“Exelon”); and an affiliate, Exelon Business Services Company LLC (collectively, “Exelon Companies”). ECF 2 (Complaint). Thereafter, on April 8, 2022, Alston, joined by six former BGE employees, filed a First Amended Complaint (ECF 4, “Amended Complaint”), along with numerous exhibits. The Amended Complaint added 36 current and former employees of the Exelon Companies as defendants. Id.

The Amended Complaint, which is almost 200 pages in length, alleges wide-ranging racial harassment, discrimination, and retaliation by defendants, resulting in a racially hostile work environment for Black employees. Id. It contains eight causes of action, all founded on Maryland law. The first four claims arise under the Maryland Fair Employment Practices Act (“FEPA”), Md. Code (2021 Repl. Vol.), §§ 20-601 et seq. of the State Government Article (“S.G.”). In particular, plaintiffs allege harassment, in violation of S.G. § 20-606(a)(5) (Count I); discrimination with respect to training, performance evaluation, discipline, promotion and pay, and discharge/constructive discharge, in violation of S.G. § 20-606(a)(1)(i) (Count II); retaliation,

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in violation of S.G. § 20-606(f) (Count III); and discrimination with respect to terms and conditions of employment (5-year work ban), in violation of S.G. § 20-606(a)(1)(i) (Count IV). See ECF 4, ¶¶ 612-48. The remaining four counts assert claims under Maryland tort law: tortious interference with economic relations (Count V); intentional infliction of emotional distress (“IIED”) (Count VI); defamation (Count VII); and invasion of privacy-false light (Count VIII). See id. ¶¶ 64983.^[1] Plaintiffs seek declaratory and injunctive relief; damages for back pay for lost earnings and benefits; interest on back pay; reinstatement or, in the alternative, front pay for future lost earnings and benefits; compensatory damages for pecuniary and nonpecuniary losses, such as emotional pain and suffering, humiliation, and punitive damages; and attorneys' fees. See id. ¶ 15.

Following the filing of the Amended Complaint, defendants timely removed the case to this Court, pursuant to 28 U.S.C. §§ 1331, 1367, 1441, and 1446, based on the doctrine of complete preemption. ECF 1 (Notice of Removal). They assert three grounds for removal: (1) jurisdiction under § 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185, for claims that implicate collective bargaining agreements; (2) jurisdiction pursuant to § 9(a) of the National Labor Relations Act (“NLRA”), 29 U.S.C. § 159(a), for claims relating to the duty of fair representation; and (3) supplemental jurisdiction with respect to the remaining non-federal claims, pursuant to 28 U.S.C. § 1376(a). ECF 1, ¶¶ 11-22.

Plaintiffs have moved to remand (ECF 18, “Remand Motion” or “Motion”), supported by eleven exhibits. Defendants oppose the Motion. ECF 22 (Opposition).^[2] The Opposition includes

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two exhibits. Plaintiffs have replied (ECF 26, Reply), supported by another exhibit.^[3]

Prior to the filing of the Remand Motion, defendants filed a partial motion to dismiss, pursuant to Fed.R.Civ.P. 12(b)(2) and 12(b)(6). ECF 16 (“Motion to Dismiss”). Thereafter, plaintiffs moved to stay or suspend briefing (ECF 19, “Motion to Stay”) with respect to the Motion to Dismiss, pending the Court's decision on the Remand Motion. The Court granted the Motion to Stay, but stated that defendants could move to rescind the Order as improvidently granted. ECF 20. Defendants so moved. ECF 21 (“Motion to Rescind”). The Court denied the Motion to Rescind in a Memorandum (ECF 23) and Order (ECF 24) of August 10, 2022, because the Remand Motion goes to the core issue of the Court's subject matter jurisdiction and, if granted, would render it improper for the Court to resolve the Motion to Dismiss. See ECF 23.

Thus, the issue now before the Court is whether the suit, which alleges racial discrimination, harassment, and retaliation, purportedly under Maryland law, was properly removed from State Court to federal court. No hearing is necessary to resolve the Motion. See Local Rule 105.6. For the reasons that follow, I shall grant the Remand Motion.

I. Factual and Procedural Background

BGE is the largest natural gas and electrical utility in Maryland. ECF 4, ¶ 27. It is also one of the largest employers in Maryland, with approximately 3,200 employees. Id. Exelon, the largest utility company in the nation, acquired BGE in 2012. Id. ¶¶ 28, 29. Exelon delivers electricity and natural gas to over 10 million customers in Maryland, Delaware, the District of Columbia, Illinois, New Jersey, and Pennsylvania. Id. ¶ 29.

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Plaintiffs assert that the suit arises from “BGE's companywide and systemic pattern and practice of turning a blind eye to blatant racial harassment and disparate treatment that created a hostile work environment for Black employees” and its “retaliat[ion] against Black employees who opposed unlawful discrimination on account of their race.” ECF 18 at 2.^[4] As one example of this conduct, the Amended Complaint alleges that, for over a decade, BGE allowed an instructor to teach trainees how to tie a noose and “to discuss the noose's history,” including its use in lynching Black Americans (ECF 4, ¶ 4), even though tying a noose was irrelevant to the job the employees were being trained to perform. See id. ¶ 248 (“The knot Belge showed the trainees was not, and is not, used in Overhead Construction.”).

Further, plaintiffs allege that they were “demeaned, mocked, threatened, ostracized and/or harassed and were subjected to heightened scrutiny, unwarranted disciplinary action or criticisms, negative stereotypes, and/or false accusations of misconduct on account of their race or for speaking out against discriminatory practices.” Id. ¶ 10. All of the plaintiffs are Black men, and most of them assert that they “personally experienced the use of racial slurs and/or other racially-motivated name-calling in the workplace.” Id.^[5] Moreover, plaintiffs contend that “supervisors and/or managers . . . turned a blind eye and took no disciplinary action against the perpetrators” and that when such incidents were reported to BGE leadership, the company declined to take serious action. Id.

Of particular importance in this case, Exelon maintains a “Use of Contractors” Human Resources Policy that bars a former employee terminated for cause or poor work performance from

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working on Exelon projects or property for a period of at least five years after termination. See ECF 4-11, Exelon Use of Contractors Policy, at 9-10. Five of the six plaintiffs have been subject to this policy, which they allege “effectively forclos[es] them from working for nearly all of the other utility companies in the State of Maryland and, as a practical matter, end[s] their careers in the utility industry.” ECF 4, ¶ 11.^[6] “None of the men . . . have secured comparable employment with another utility company,” allegedly due to this policy. Id. ¶ 12. And, according to plaintiffs, defendants discriminatorily enforce the policy against Black workers; they “have routinely made exceptions in applying [the policy] to similarly situated White former BGE employees.” Id. ¶ 637. As a result of this policy, plaintiffs allege that collectively, they “have been forced to postpone necessary medical procedures and go without the medications required to treat chronic medical conditions”; “are facing foreclosure and have been forced to file bankruptcy”; and have suffered from emotional and physical harms resulting from “race-based traumatic stress, anxiety, depression, humiliation, loss of self-esteem, marital strain, severe emotional distress, sleeplessness, and physiological symptoms.” Id. ¶ 12.

Notably, with one exception, plaintiffs are members of the International Brotherhood of Electrical Workers, Local 410 (the “Union” or “Local 410”), which was certified by the National Labor Relations Board as the exclusive representative of over 1,400 of BGE's workers. Id. ¶ 35 n.10.^[7] As of May 24, 2018, prior to ratification of a collective bargaining agreement, BGE and Local 410 entered into an Interim Complaint Procedure (the “ICP”), pertaining to disputes between

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BGE and represented employees. Id. Effective June 23, 2019, BGE and the Union became parties to a Collective Bargaining Agreement (the “CBA”). Id.

The Amended Complaint contains allegations that the Union or Union representatives engaged in wrongful conduct and that defendants violated the CBA. See, e.g., id. ¶¶ 43, 53, 86, 160, 235, 236, 238, 378, 394, 396, 404. Although plaintiffs have named individual Union representatives as defendants, plaintiffs maintain that these representatives have not been sued in their official capacity. ECF 26 at 13. Moreover, the Union is not named as a defendant in the case, nor have plaintiffs expressly lodged any claims for relief based on CBA violations or Union wrongdoing. Rather, plaintiffs allege that the Union representatives named as defendants aided and abetted discrimination and retaliation against plaintiffs. Id.

The claims in the Amended Complaint stand in stark contrast to those Alston brought in a prior suit that came before another member of this court. See Alston v. Balt. Gas & Elec. Co. et al., SAG-20-2317 (“Alston I”). In that case, Alston, the sole plaintiff, filed suit in the Circuit Court against BGE and the Exelon...