Augustin v. Sectek, Inc.

• Decision Date: 26 August 2011
• Docket Number: Civil Action No. 1:11–cv–490.
• Citation: 807 F.Supp.2d 519,191 L.R.R.M. (BNA) 2826
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Pierre Richard AUGUSTIN, Plaintiff, v. SECTEK, INC., et al., Defendant.

191 L.R.R.M. (BNA) 2826

807 F.Supp.2d 519

Pierre Richard AUGUSTIN, Plaintiff,

v.SECTEK, INC., et al., Defendant.

Civil Action No. 1:11–cv–490.

United States District Court, E.D. Virginia,Alexandria Division.

Aug. 8, 2011.Order Denying Reconsideration Aug. 26, 2011.

Steven W. Ray, Esq., of Isler Dare Ray Radcliffe & Connolly, P.C., for defendant SecTek, Inc.

ORDER

CLAUDE M. HILTON, District Judge.

This matter comes before the Court on the Motion to Dismiss of Defendants SecTek, Inc., Wilfred D. Blood., Michelle Fowler, and Frederick Springfield (the “SecTek Defendants”) for Plaintiff's failure to state a claim upon which relief can be granted.

Plaintiff began working as an armed security guard for SecTek, Inc., on February 15, 2010. SecTek provided security services at Metro Place I pursuant to a contract with Federal Protective Services (“FPS”). The National Association of Special Police and Security Officers union (“Union”) represented Plaintiff pursuant to a collective bargaining agreement (“CBA”) effective on January 13, 2010. Defendant Fowler signed the CBA as the Vice President of Operations on behalf of SecTek.

The Complaint alleges that Plaintiff arrived at work at 7:30 AM, signed in for his weapon at 7:30 AM, and signed the FPS form 139 at 7:30 AM on the morning of November 8, 2010. At that time, Defendant Frederick Springfield commented that Plaintiff had falsified the form 139. Plaintiff then looked at the time on the video monitor, which he alleges was five to ten minutes fast. Plaintiff alleges that he signed out at 7:30 AM, checked the time on his cell phone, and signed back in at 7:31 AM.

Approximately ten minutes after Plaintiff reached his assigned post, Defendant Springfield summoned him to his office and told Plaintiff that he was going to report Plaintiff for falsifying the FPS 139 Form. Plaintiff resumed his duties and then requested a 44R break on the two-way radio. During his break, Plaintiff attempted to see what time the record reflected that he had clocked in to work, and then he left the building to call his wife to dictate an email to SecTek, Inc. regarding the time falsification issue. When Plaintiff returned to his post, he called the emergency phone number for FPS to file a report that he was being accused of falsifying the form 139.

Shortly thereafter, Plaintiff met with Defendant Springfield and several FPS Officers. The FPS officers requested Plaintiff's weapon, ammunition, drivers license, armed/unarmed licenses, first aid materials/ baton, and Homeland Security credentials, and returned his drivers license. After discussing the time entry issue, FPS officers escorted Plaintiff off the premises. Plaintiff was terminated by letter dated November 12, 2010.

In the Complaint, Plaintiff lists thirteen causes of action, including (I) Breach of Collective Bargaining Agreement, (II) Breach of Fiduciary Duty, (III) Defamation, (TV) Deprivation of Fourth Amendment Rights, (V) Violation of Fifth Amendment Rights, (VI) Common Law Fraud–Concealment, (VII) Common Law Fraud–Constructive Fraud, (VIII) Tortious Interference with Contract Common Law, (IX) Common Law Malice, (X) Common Law Wrongful Discharge, (XI) False Allegation for Unlawful Discrimination, (XII) Breach of Fair Duty of Care, and (XIII) Punitive Damages.

Generally an employee must exhaust any grievance or arbitration remedies provided in the CBA before filing a lawsuit, or the claim must be dismissed. DelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 163, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983); Republic Steel Corp. v. Maddox, 379 U.S. 650, 653, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965) (“[T]here can be no doubt that the employee must afford the union the opportunity to act on his behalf.”); accord Trent v. Bolger, 837 F.2d 657, 659 (4th Cir.1988). The CBA between the Union and SecTek, Inc. states that “discipline and discharge matters shall be subject to the grievance and arbitration procedures contained in Article 13 of this Agreement” (emphasis added). Furthermore, the CBA states that:

[t]he parties expressly acknowledge that the duty to use this grievance procedure, including binding arbitration, includes any and all disputes between any employee and the Company (and the Union and the Company) arising out of or relating to any employee's employment with the Company, whether grounded in contract, tort, or statutory law (including but not limited to federal, state and local civil rights and employment laws ...). This duty to arbitrate shall apply to all claims which the employee believes he/she may have against the Company, its affiliated companies or any of its officers, owners, directors, employees or agents.

The Union was actively pursuing the grievance process when Plaintiff made his first federal district court filing, without joining the Union as a party, eleven days after Defendant SecTek, Inc. issued Plaintiff's letter of termination. Because Plaintiff did not afford the union a full opportunity to act on his behalf and exhaust his administrative remedy, his breach of collective bargaining agreement claim must be dismissed against SecTek.

The Labor Management Relations (Taft–Hartley) Act § 301(a), 29 U.S.C. § 185(a) (2006), bars Plaintiff's breach of the CBA claim. Plaintiff's breach of collective bargaining agreement claim must be dismissed against Mr. Blood, Ms. Fowler, and Mr. Springfield, because courts have found that § 301 defendants must be signatories to the collective bargaining agreement for a federal court to exercise jurisdiction over them. DeRay v. Larson, 283 F.Supp.2d 706, 711 (D.Conn.2003). Neither Mr. Blood nor Mr. Springfield is a signatory to the CBA. Additionally, courts have interpreted the Supreme Court's decision in Complete Auto Transit, Inc. v. Reis, 451 U.S. 401, 407, 101 S.Ct. 1836, 68 L.Ed.2d 248 (1981), to mean that § 301 does not allow suits by employees against individual managers. E.g., DeRay, 283 F.Supp.2d at 711–12. Thus, Plaintiff cannot maintain his CBA claim against Ms. Fowler.

An employee who has not exhausted the grievance procedures may nonetheless bring a federal claim against the employer under § 301 if the employee demonstrates that the union breached its duty of fair representation such that grievance procedures provide no meaningful recourse. DelCostello, 462 U.S. at 164–65, 103 S.Ct. 2281 (1983); see also Amburgey v. Consolidation Coal Co., 923 F.2d 27, 29 (4th Cir.1991) (“A cause of action will only lie against an employer if the union has breached its duty of fair representation of the employee.”). Although Plaintiff argues that NASPSO and Mr. Buriss breached a “fair duty of care,” the Complaint does not adequately allege that the Union breached a duty of fair representation owed to Plaintiff. Plaintiff has pled no facts alleging that the Union breached its fair duty of representation owed to Plaintiff before Plaintiff made his first court filing. By contrast, Plaintiff attached as Exhibit 9 to his Complaint an email that shows that the Union was actively pursuing the grievance procedure on November 15, 2010 by requesting a ten day extension of time to review the matter thoroughly. Eight days later, Plaintiff made his first filing in federal court.

Other circuits have held that an employee expressly waives the right to arbitration when a plaintiff sues a defendant and seeks to invoke the court's jurisdiction over matters that would otherwise be arbitrable. See, e.g., Petroleum Pipe Ams. Corp. v. Jindal Saw, Ltd., 575 F.3d 476, 480–81 (5th Cir.2009) (“The court finds waiver when the party seeking arbitration substantially invokes the judicial process to the detriment or prejudice of the other party.”) (quotation marks omitted); Woody v. Sterling Aluminum Prods., Inc., 243 F.Supp. 755 (E.D.Mo.1965), aff'd, 365 F.2d 448 (8th Cir.1966). By pursuing a remedy in federal court, Plaintiff waived his right to arbitration on November 23, 2010. Plaintiff has alleged no facts upon which an inference can be drawn that the Union breached its duty of fair representation prior to Plaintiff's initiation of litigation and waiver of the grievance process. Thus, any § 301 claim that Plaintiff is bringing must also be dismissed because it fails to state a plausible claim that the Union breached its duty of fair representation.

Section 301 also preempts the state law causes of action pled by Plaintiff that depend on an analysis of the terms of the collective bargaining agreement, Clark v. Newport News Shipbuilding & Dry Dock Co., 937 F.2d 934, 937 (4th Cir.1991); Mullins v. Int'l Union of Operating Eng'rs Local No. 77 AFL–CIO of Washington, D.C., 214 F.Supp.2d 655, 668 (E.D.Va.2002) (“Section 301 not only preempts state law claims against parties to a collective bargaining agreement, but also preempts state law claims against non-signatories where interpretation of the agreement is required for resolution.”). Plaintiff alleges that the SecTek Defendants breached a fiduciary duty owed to Plaintiff, but Virginia law has not recognized a fiduciary duty owed to an employee by an employer. Wynn v. Wachovia Bank, N.A., No. 3:09CV136, 2009 WL 1255464, at *5 (E.D.Va. May 6, 2009); see also Starks v. McCabe, 49 Va.Cir. 554, 560 (Va.Cir.Ct.1998). Consequently, any fiduciary duty owed must arise from the CBA. Because an analysis of the CBA would be necessary to determine a duty owed, if any, § 301 preempts Plaintiff's breach of fiduciary duty claim.

Section 301 preempts the defamation claim because it is inextricably intertwined with consideration of the terms of the CBA. See Barbe v. Great Atl. & Pac. Tea Co., 722 F.Supp. 1257, 1260 (D.Md.1989) (“The resolution of the elements of the state law [defamation] claim are thus inextricably intertwined with the definition of the ... arbitration process contained in the collective-bargaining agreement and with an understanding of the relative interests of the union, the employer and the employee in communicating employee discipline...