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Gerald v. Diversified Protection Corp.

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

June 25, 2019

JOSEPH L. GERALD, Plaintiff,



         In this labor dispute, Defendants Diversified Protection Corporation ("DPC") and Security, Police and Fire Professionals of America's ("SPFA") filed motions to dismiss for failure to state a claim. Those motions were referred to a magistrate judge, pursuant to 28 U.S.C. § 636, who, in turn, issued a Report and Recommendation ("Report") recommending that: (i) Count I, which alleges a breach of the collective bargaining agreement ("CBA"), be dismissed; (ii) Count II, which alleges a breach of the duty of fair representation under § 301 of the Labor Management Relations Action, 29 U.S.C. § 185(a), be dismissed with leave to amend; and (iii) Count III, which alleges wrongful termination under Bowman v. State Bank of Keysville, 331 S.E.2d 797, 801 (Va. 1985), [1] be dismissed.

         Plaintiff Joseph L. Gerald and defendant SPFA timely filed objections to the Report; defendant DPC filed no objections. Specifically, plaintiff objected to certain factual conclusions in the Report and, as the following discussion reflects, although some of those objections are well founded they do not affect the results recommended by the magistrate judge. Moreover, as discussed infra, the Report correctly determined that each count of the complaint should be dismissed. The Report must be modified, however, because amendment of the complaint would be futile and the magistrate judge's recommendation to the contrary cannot stand. Accordingly, SPFA's objection will be sustained. Thus, for the reasons that follow: (i) plaintiffs objections will be sustained in part and overruled in part; (ii) SPFA's objection will be sustained; and (iii) the complaint will be dismissed with prejudice.


         Except where noted, the Court has adopted the Report's factual findings. Plaintiff worked as a guard for DPC, and its predecessor, in Crystal City, Virginia for at least seven years. SPFA the labor organization that served as the bargaining representative for plaintiff and others employed by DPC. Between September 30, 2014 and September 29, 2017, the relationship between DPC and SPFA was governed by a CBA, which contained discharge and disciplinary provisions as well as grievance and arbitration procedures. Nothing in the CBA indicated that any disciplinary or grievance procedures survived the expiration of the CBA.

         After the CBA expired in September 2017, DPC and SPFA did not immediately enter into a new CBA. On April 6, 2018, while at work, plaintiff noticed that the pay deposited into his bank account had been reduced by half. Plaintiff immediately began notifying his bank and vendors that plaintiffs bank account would lack necessary funds to cover some automatic payments. Plaintiff used his cell phone to make these calls. While plaintiff was on hold with his bank, an employee of the site that plaintiff guarded observed plaintiff on his cell phone and reported plaintiff to DPC. DPC's project manager directed plaintiff to provide a written statement describing plaintiffs conduct, which plaintiff did.

         On April 10, 2018, DPC suspended plaintiff for approximately two weeks, while it investigated. During plaintiffs suspension, plaintiff requested that SPFA's representative, Joseph McCray ("McCray") process a grievance for plaintiff. McCray repeatedly stated that he was attempting to resolve the issue between plaintiff and DPC but could not do so because there was no CBA in place. McCray also stated that plaintiff was vulnerable to termination because of plaintiffs disciplinary history. McCray harbored substantial animosity towards plaintiff, stemming from McCray's interference in, and contribution to, the dissolution of plaintiff s marriage.[2]

         On April 27, 2018, DPC terminated plaintiffs employment for: (i) use of a personal cellular phone on post; and (ii) being inattentive to duty. DPC represented to plaintiff that "there was a landline available for you to use which would not have resulted in discipline."[3] Plaintiff claims that he was not inattentive to his duty and that his termination constitutes a material breach of the CBA. Plaintiff further claims that his firing was in retaliation for plaintiffs complaints regarding violations of federal and state laws.

         DPC and SPFA entered into a new CBA on July 29, 2018.


         In the Report, the magistrate judge recommends that each count of the complaint be dismissed, and that plaintiff be permitted only Count II. Plaintiff objects to the Report's recommendation on each of the three counts of the complaint. SPFA objects only to the recommendation that plaintiff be permitted to amend Count II. Each count will now be addressed in turn.


         Count I alleges a breach of the CBA between DPC and SPFA.[4] The Report recommends dismissing Count I because an expired CBA cannot support a breach of contract claim. See Litton Fin. Printing Div. v. NLRB, 501 U.S. 190, 206 (1991) ("[A]n expired contract has by its own terms released all its parties from their respective contractual obligations."). In his objection, plaintiff does not dispute that the CBA expired on September 29, 2017 and that the expired CBA cannot form the basis for his § 301 claim. Thus, plaintiff only objects that the Report did not permit plaintiff to proceed on his claim that DPC's cell phone policy created an implied contract that may be enforced under § 301 or to amend Count I to state such a claim.[5] Because plaintiff may not proceed on an implied contract theory under § 301 following the expiration of the CBA, the Report correctly found that Count I should be dismissed without leave to amend. Accordingly, plaintiffs objection will be overruled, and Count I will be dismissed with prejudice.

         To begin with, the complaint never references DPC's cell phone policy as implied or interim contract.[6] Plaintiff claims that his vague references to an "employment contract" in the complaint are sufficient to state an implied contract claim under § 301 based on DPC's cell phone policy. They are not. Plaintiffs allegations give no indication that plaintiff is asserting a § 301 claim based on an implied contract. Moreover, the complaint makes plain that Count I relies on "an enforceable expectation that his employment would continue according to the terms of the CBA" and on DPC's alleged material breach of the ...

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