United States District Court, D. Maryland, Southern Division
MEMORANDUM OPINION AND ORDER
W. GRIMM UNITED STATES DISTRICT JUDGE.
Maria Gonzalez worked for Defendant Prince George's
County, Maryland (the “County”) as an
Administrative Aide II from October 1, 2007 until at least
September 20, 2016.Compl. ¶¶ 4, 8, ECF No. 2.
Throughout her employment, her workday was 8.5 hours long but
the County paid her for only 8 hours of work each day,
because it designated half an hour each day as a “lunch
break.” Id. ¶ 20. Yet, according to
Gonzalez, she “was not permitted to take a lunch break
each and every day.” Id. ¶ 21. Rather,
she worked at least two lunch breaks per week from May 29,
2014 through March 9, 2016, and she worked three lunch breaks
per week beginning July 5, 2016. Id. ¶¶
22, 24. She claims that, as a result, she worked in excess of
forty hours per week but the County failed to pay her
overtime wages (or even minimum wage) for the additional
hours she worked, id. ¶¶ 20-26, and
thereby violated the Federal Fair Labor Standards Act
(“FLSA”), 29 U.S.C. §§ 201 - 219; the
Maryland Wage Payment and Collection Law
(“MWPCL”), Md. Code Ann, Lab. & Empl.
§§ 3-501 - 3-509; and the Maryland Wage and Hour
Law (“MWHL”), Lab. & Empl. §§ 3-401
- 3-431. Compl. 1.
is the County's Motion to Dismiss or in the Alternative,
Motion for Summary Judgment. Def.'s Mot., ECF No.
The County insists that the Collective Bargaining Agreement
(“Agreement” or “CBA”) that it
entered into with the American Federation of State, County,
and Municipality Employees, Local Number 3389 (the
“Union”), of which Plaintiff was a member,
governs the disputes raised in this litigation, and therefore
Gonzalez's failure to exhaust contractual remedies
pursuant to the grievance and arbitration procedures
described in the CBA bars this suit. Id. at 2.
Gonzalez agrees that her “position and job are
consistent with being governed by the CBA, ” that
“[t]he Copy of the CBA that is attached to the Motion
is authentic, ” and that she signed the Acknowledgement
Form, acknowledging receipt of the CBA. Pl.'s Opp'n
3. But, she contends that the grievance and arbitration
provision does not apply to her claims in this Court because,
inter alia, she challenges compliance with federal
and state statutes, not the CBA. Id. at 4. Because I
find that, on the record before me and drawing all reasonable
inferences in favor of Gonzalez, the Agreement does not cover
statutory claims such as those Gonzalez brings, I will deny
the County's Motion, treated as one for summary judgment,
and order the County to respond to Gonzalez's Complaint.
County moves to dismiss or for summary judgment. Def.'s
Mot. 1-2. On a motion to dismiss, the Court only may consider
attached documents that are “integral to and explicitly
relied on in the complaint, ” and only when “the
plaintiffs do not challenge [their] authenticity.
Phillips v. LCI Int'l, Inc., 190 F.3d 609, 618
(4th Cir. 1999). While Gonzalez concedes the authenticity of
the Agreement that the County attached to its Motion, she
clearly does not rely on it in her Complaint and it is not
integral to the Complaint, given that Gonzalez does not
believe that the issues she raises fall within its ambit.
Therefore, I will treat the County's Motion as one for
summary judgment. See Fed. R. Civ. P. 12(d);
Laughlin v. Metro. Wash. Airports Auth., 149 F.3d
253, 260-61 (4th Cir. 1998) (parties have sufficient notice
that court may treat motion as one for summary judgment
where, as here, defendant titles its motion in the
alternative as one for summary judgment and attaches
materials that are not integral to complaint); Ridgell v.
Astrue, DKC-10-3280, 2012 WL 707008, at *7 (D. Md. Mar.
2, 2012) (same).
judgment is proper when the moving party demonstrates,
through “particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations . . .,
admissions, interrogatory answers, or other materials,
” that “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a), (c)(1)(A); see
Baldwin v. City of Greensboro, 714 F.3d 828, 833 (4th
Cir. 2013). If the party seeking summary judgment
demonstrates that there is no evidence to support the
nonmoving party's case, the burden shifts to the
nonmoving party to identify evidence that shows that a
genuine dispute exists as to material facts. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 585-87 & n.10 (1986). The existence of only a
“scintilla of evidence” is not enough to defeat a
motion for summary judgment. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 251 (1986). Instead, the evidentiary
materials submitted must show facts from which the finder of
fact reasonably could find for the party opposing summary
judgment. Id. The Court considers the undisputed
facts, and to the extent there is a genuine dispute of
material fact, “this Court reviews the facts and all
reasonable inferences in the light most favorable to the
nonmoving party.” Downing v. Balt. City Bd. of Sch.
Comm'rs, No. RDB-12-1047, 2015 WL 1186430, at *1 (D.
Md. Mar. 13, 2015) (citing Scott v. Harris, 550 U.S.
372, 378 (2007)).
Collective Bargaining Agreement
Collective Bargaining Agreement provides, with exceptions not
relevant here, that “employees shall have a regular
workweek of (8) consecutive hours, excluding an unpaid meal
period, within a twenty-four hour (24) hour period, and the
normal workweek shall consist of five (5) consecutive days,
Monday through Friday.” CBA art. 13(A), at 9. Article
15, “Premium Pay, ” provides that
“[e]mployees will be compensated at the rate of one and
one-half (1.5) times their regular rate of pay for time they
are required to work in excess of forty (40) hours in a
workweek.” CBA art. 15(A)(1), at 11.
Agreement also provides that “[a] complaint or dispute
between . . . the County and an employee, including a
complaint or dispute involving the application, meaning or
interpretation of the provisions of this Agreement shall be
considered a grievance and subject to resolution under the .
. . procedures” set forth in Article 45 of the CBA. CBA
art. 45, at 38, ECF No. 19-3. First, at Step 1 of the
grievance procedures, the employee, through a Union
representative, gives written notice of the grievance to the
employee's department within ten days of its occurrence;
the representative then meets with the employee's
supervisor to “endeavor to adjust the matter”;
and the department responds to the grievance after that
meeting. Id. If the matter is not resolved, at Step
2, a Union representative meets with the employee's
department head to “attempt to resolve the
grievance.” Id. at 39. Next, at Step 3, if the
matter remains unresolved, the employee files a written
appeal, after which, at Step 4, the matter is submitted to
arbitration if it still is not resolved. Id. The
Agreement states that “[o]nly grievances arising as a
result of disputes concerning the meaning, interpretation or
application of this Agreement shall be subject to Step 4
undisputed that the CBA governs Gonzalez's
“position and job, ” that it includes grievance
and arbitration procedures, and that Gonzalez acknowledged
receipt of a copy of it. Def.'s Mot. 2; Pl.'s
In general, union members with a grievance under the CBA
“must attempt to use the contract grievance procedure
agreed upon by employer and union as the mode of
redress.” Republic Steel Corp. v. Maddox, 379
U.S. 650, 652 (1965). Thus, if an employee “resorts to
the courts before the grievance procedures have been fully
exhausted, the employer may well defend on the ground that
the exclusive remedies provided by such a contract have not
been exhausted.” Vaca v. Sipes, 386 U.S. 171,
Windsor v. Bd. of Educ. of Prince George's Cty.,
No. TDC-14-2287, 2016 WL 4939294, at *14 (D. Md. Sept. 13,
2016). On this basis, the County moves to dismiss. Def.'s
Mot. 2. In Gonzalez's view, she did not have to arbitrate
the statutory claims she raises in this lawsuit because they
are outside the scope of arbitration, which is limited to
“disputes concerning the meaning, interpretation or
application of th[e] Agreement.” Pl.'s Opp'n 4.
According to the County, “[t]he Fourth Circuit has held
that FLSA claims can be resolved in mandatory arbitration
proceedings.” Def.'s Mot. 6 (citing Adkins v.
Labor Ready, Inc., 303 F.3d 496 (4th Cir. 2002)).
pivotal issue here, however, is whether Gonzalez had
to follow the grievance process for her statutory
claims. The answer is no. While an employee may agree by
contract to follow grievance procedures, including
arbitration, for statutory claims instead of pursuing them in
court, an employee is not required to do so unless the waiver
of litigation is “clear and unmistakable” in the
agreement between the party or his or her union and the
employer. Wright v. Universal Maritime Service
Corp.,525 U.S. 70, 79 (1998); see also Carson v.
Giant Food, Inc.,175 F.3d 325, 331-32 (4th Cir. 1999);
Birch v. The Pepsi Bottling Grp., Inc., 207
F.Supp.2d 376, 380-81 (D. Md. 2002). Under the
Wright standard, a collective bargaining agreement
binds an employee to arbitrate a federal statutory claim if
it includes “an explicit arbitration clause . . . under
which the employees agree to submit to arbitration all
federal causes of action arising out of their
employment.” Birch, 207 F.Supp.2d at 381
(quoting Carson, 175 F.3d at 331-32). But, when it
simply refers “to ‘all disputes' or