UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
) DONALD TAPP, ) ) Plaintiff, ) ) v. ) Civil Action No. 15–cv-0768 (KBJ) ) WASHINGTON METROPOLITAN ) AREA TRANSIT AUTHORITY, ) ) Defendant. ) )
MEMORANDUM OPINION
Plaintiff Donald Tapp had been an at-will employee of the Washington
Metropolitan Area Transit Authority (“WMATA” or “Defendant”) for approximately 25
years as of February 3, 2015, when he was terminated from his position as the
Superintendent of the Montgomery Bus Division for allegedly violating internal work
rules. Shortly after Tapp’s termination, WMATA’s Metro Transit Police issued a “Be
On the Look-Out” (“BOLO”) flyer, warning the public that Tapp was no longer allowed
on WMATA’s property. When Tapp later filed a lawsuit against WMATA in Superior
Court, WMATA removed his action to this Court. Tapp’s amended complaint alleges
that the termination of his employment violated his Fifth Amendment right to due
process because WMATA failed to follow its own internal procedures (see Am. Compl.,
ECF No. 24, ¶¶ 23–25); that WMATA’s issuance of the BOLO flyer transgressed 42
U.S.C. § 1983 because it harmed his reputation and ability to obtain new employment
in violation of his constitutional liberty interests under the Fifth and Fourteenth Amendments (see id. ¶¶ 27–33); and that Tapp was treated differently than similarly-
situated managers because of his gender, in violation of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. §§ 2000e–2000e-17 (see id. ¶¶ 39–51). The amended complaint
also claims that the BOLO flyer falsely depicted Tapp as a criminal to his friends and to
the community at large, thereby placing him in a false light and invading of his privacy
(see id. ¶¶ 34–38), and that this action by WMATA also amounted to intentional
infliction of emotional distress (see id. ¶¶ 53–58).
Before this Court at present is WMATA’s renewed motion for judgment on the
pleadings under Federal Rule of Civil Procedure 12(c). (Def.’s Renewed Mot. for J. on
the Pleadings (“Def.’s Mot.”), ECF No. 25.) 1 WMATA argues that it is entitled to
judgment in its favor on all five claims in Tapp’s amended complaint, and this Court
generally agrees with WMATA’s arguments, except as they pertain to Tapp’s allegation
that he is the victim of gender discrimination in violation of Title VII (Count III).
Specifically, as explained fully below, the Court finds that WMATA is entitled to
judgment on Counts I, II, IV, and V as a matter of law for a variety of reasons,
including the fact that Tapp does not hold a protectable property interest as is needed to
establish a Due Process violation, and that WMATA is neither subject to Section 1983
claims nor able to be sued for the common-law torts that Tapp has brought in this
lawsuit. However, Tapp’s gender-discrimination claim cannot be resolved in
WMATA’s favor at this time, because WMATA’s motion seeks judgment based on an
affirmative defense that WMATA must plead and prove, even if Plaintiff does not
1 As explained infra in Part I.B, WMATA’s initial Rule 12(c) motion was mooted when this Court granted Tapp leave to amend his original complaint.
2 oppose WMATA’s assertion. Accordingly, WMATA’s motion for judgment on the
pleadings will be GRANTED IN PART AND DENIED IN PART, as explained below.
A separate order consistent with this opinion shall follow.
I. BACKGROUND
A. Factual Background
The following facts are alleged in Tapp’s amended complaint, and must be
accepted as true for the purpose of the pending motion. See Robinson v. District of
Columbia, 403 F. Supp. 2d 39, 47 (D.D.C. 2005) (“[U]nder [a] Rule 12(c) motion, the
Court assumes the veracity of all factual allegations set forth in [the] Complaint.”
(citing Doe v. U.S. Dep’t of Justice, 753 F.2d 1092, 1102 (D.C. Cir. 1985))).
Tapp was a WMATA employee for about twenty-five years, until the termination
of his employment on February 3, 2015. (See Am. Compl. ¶¶ 7–8; Termination of
Emp’t Mem., Ex. 1 to Am. Compl., ECF No. 24-2, at 1–3.) 2 Tapp last served as the
Superintendent of Bus Transportation (“BTRA”) of WMATA’s Montgomery Division.
(See Am. Compl. ¶¶ 8, 41.) On or about January 2, 2015, approximately a month before
his termination, Tapp suspended one of his subordinates—office manager Paul Hobbs
(see id. ¶¶ 9–10)—after Hobbs became “angry and defensive” during a discussion about
Hobbs’s “various work[-]related issues of noncompliance” (id. ¶ 13). Hobbs
complained about the disciplinary action to Tapp’s supervisor, Ted Harris, and alleged
“that he was assaulted during his discussions with Plaintiff.” (Id. ¶ 16.) As a result,
Harris called a meeting with Tapp on January 7, 2015, and “suspended [Tapp] for a
2 Page numbers herein refer to those that the Court’s electronic case filing system automatically assigns.
3 period of nineteen (19) days” pending an internal investigation into Hobbs’s
allegations. (Id.; see also id. ¶¶ 15–16.) At the end of this period, Tapp was “contacted
by WMATA’[s] Office of Equal Employment Opportunity (EEO) where a number of
officials . . . tried without success to force him to resign his position[.]” (Id. ¶ 20.)
Then, on February 3, 2015, Tapp was officially terminated from his employment,
allegedly without being provided any instructions as regarding how “to appeal or
grieve” the decision. (Id. ¶ 21; see also Termination of Emp’t Mem. at 1.) 3
Curiously, in the “termination letter” that Tapp received from WMATA, “no
reference to the allegations made by . . . Hobbs” appeared. (Am. Compl. ¶ 22.)
Instead, the letter recited several other events as grounds for Tapp’s termination,
including: (1) that Tapp had violated WMATA rules when he fired another employee on
December 30, 2014, without first consulting with his superiors or obtaining a
concurrence; (2) that Tapp had violated WMATA Comptroller Procedures when he
failed to secure the Montgomery Division’s petty cash in a safe under a combination
lock; and (3) that Tapp had received poor overall performance evaluations during the
immediately preceding year, along with reported incidents of improper and
unprofessional conduct. (See Termination of Emp’t Mem. at 1–2.)
Shortly after Tapp was fired, he “learned that . . . WMATA had caused its Metro
Transit Police Criminal Investigative Division to publish a flyer with his photograph
3 Tapp repeatedly states that “on the twentieth day of his suspension[] he was terminated from his position.” (Am. Compl. ¶ 16; see also id. ¶ 20; Pl.’s Opp’n to Def.’s Mot. (“Pl.’s Opp’n”), ECF No. 27, at 2.) But according to the documentation that was referenced in and attached to Tapp’s amended complaint, Tapp was terminated on February 3, 2015 (see Termination of Emp’t Mem. at 1), which was twenty-seven days after he was placed on suspension on January 7, 2015. However, as far as this Court can tell, the seven-day difference between the complaint’s allegations and the evidence provided is not material to any of the legal issues presented in this case.
4 and employee number[,]” warning readers that Tapp was not allowed on WMATA’s
property. (Am. Compl. ¶ 28.) The flyer, which bore the “BOLO” acronym, was
“published throughout WMATA and in all of the metro stations that it operates[,]” and
was visible to Tapp’s co-workers and friends, as well as to any “visitors to WMATA
facilities[.]” (Id.)
B. Procedural History
On or about April 29, 2015, Tapp filed a complaint against WMATA in the
Superior Court of the District of Columbia, which WMATA then removed to this Court,
along with its answer to the original complaint, pursuant to 28 U.S.C. §§ 1441, 1446,
and D.C. Code § 9-1107.01(81). (See Notice of Removal, ECF No. 1; Original Compl.,
ECF No. 1-1, at 6–19; Def.’s Answer, ECF No. 1-4.) On January 5, 2016, Tapp filed an
Amended Complaint (ECF. No. 24), alleging that WMATA (1) “wrongfully and
illegally” terminated his employment without “observ[ing] its own rules . . . [and]
policy instructions” in violation of his Fifth Amendment rights (id. ¶¶ 23–25 (Count I));
(2) violated 42 U.S.C. § 1983 by depriving Tapp of his liberty interest that the Fifth and
Fourteenth Amendments protect, when WMATA “negligently published” or directed
Metro policemen to publish the BOLO flyer “throughout WMATA and in all of the
metro stations that it operates” and thereby injured Tapp’s “reputation in his trade,
profession[,] . . . community standing[,] . . . quest for new employment, and his
enjoyment of life” (id. ¶¶ 28–30, see also id. ¶¶ 27–33 (Count II)); (3) discriminated
against Tapp on the basis of his gender by holding him to stricter terms and conditions
in his office and firing him for the same actions that had also been undertaken by a
female predecessor (see id. ¶¶ 39–52 (Count III)); (4) issued a “false and libelous”
5 public BOLO flyer with Tapp’s photograph “that implied that [he] had committed a
crime” (id. ¶ 55), thereby placing him in false light and invading his privacy (see id.
¶¶ 34–38 (Count IV)); and (5) maliciously published the BOLO flyer in an “outrageous,
extreme and intentional” manner, causing Tapp “to suffer severe emotional distress”
(id. ¶ 58; see also id. ¶¶ 53–58 (hereinafter referred to as “Count V”)). 4
Notably, in his amended complaint, Tapp contests WMATA’s charges against
him generally (see, e.g., id. ¶ 22), and also specifically challenges the allegation that he
had mishandled petty cash; he explains that when he was appointed as superintendent of
the Montgomery Division in September of 2013, “there was no petty cash made
available to [him]” and, “[w]hile there was a safe in the Division [to store petty cash],
no one had access to the combination by which it could be unlocked[.]” (Id. ¶ 41.)
Moreover, after Tapp had allegedly “inquir[ed] about the availability of petty cash”
(id.), he discovered that his female predecessor, Jacqueline Smith, had not kept the
petty cash funds in a safe or secure place herself (see id. ¶¶ 41–42)—instead, at a
meeting on October of 2013, she proceeded to “borrow $200.00 in cash from a
co-worker, Mr. Summon Cannon, which she then handed over to [Tapp] for the
Montgomery Division petty cash” (id. ¶ 42). Because Tapp was not provided with a
safe or combination, he purportedly “was left to secure the monies in his WMATA
company vehicle.” (Id. ¶ 41.) Furthermore, according to Tapp, while he was
admonished for failing to secure the funds in a combination safe, “it was clear that his
4 Tapp’s amended complaint inexplicably misorders the counts that it alleges—Count III is listed after Count IV (see Am. Compl. at 8–9)—and the allegations regarding intentional infliction of emotional distress are identified by a separate heading but does not contain any count number at all (see id. at 12). The Court would ordinarily order Plaintiff to revise its pleading to reflect all five counts, properly labeled and ordered numerically, but given the disposition of Defendant’s motion to dismiss as explained herein, the Court has opted to refrain from requiring Plaintiff to engage in that undertaking.
6 predecessor superintendent, a female, did not have a safe in which she had secured petty
cash funds” (id. ¶ 42), and indeed, “did not even have the petty cash funds available”
(id. ¶ 48).
WMATA challenged the original complaint with a motion for judgment on the
pleadings that it filed on August 24, 2015. (See ECF No. 12.) However, subsequent to
the filing of this motion, this Court granted Tapp leave to amend the complaint, and
WMATA’s motion was thereafter dismissed as moot. (See Min. Order of Dec. 10,
2015.) WMATA has now filed a renewed motion for judgment on the pleadings under
Federal Rule of Civil Procedure 12(c), with respect to all of the amended complaint’s
counts. WMATA argues that Count I fails because WMATA is a state agency that is
not bound by internal procedures with respect to the firing of its employees, and
because Tapp was an at-will employee without a constitutional interest in continued
employment that could “trigger a violation under the Fifth or Fourteenth
Amendment[s].” (Def.’s Mot. at 7 (citation omitted).) Alternatively, WMATA argues
that it did, in fact, follow internal procedure when it terminated Tapp. (See id. at 8–9.)
WMATA further contends that it is entitled to the entry of judgment in its favor with
respect to Count II, because WMATA is not a “person” subject to Section 1983 claims,
and that even if it is not immune, harm to reputation alone does not amount to the
unconstitutional deprivation of a plaintiff’s liberty interest. (See id. at 9–10.) WMATA
maintains that Tapp’s claim of gender discrimination must also be dismissed for failure
to exhaust administrative remedies under Title VII, because “[t]here is no record that
[Tapp] has filed the requisite complaint with the EEOC[,]” nor does the amended
complaint allege such a filing or attach a copy of “a right-to-sue letter[.]” (Id. at 12.)
7 Lastly, WMATA contends that Counts IV and V fail because WMATA “enjoys
sovereign immunity” from suit for intentional torts committed in a discretionary or
governmental capacity, and, here, the decision to issue the BOLO flyer was undertaken
in WMATA’s discretion to warn its personnel that Tapp was no longer allowed on non-
public WMATA property and was carried out by Metro policemen. (See id. at 11–12.)
For his part, Tapp makes a series of arguments that appear to be substantively
related to Counts I, II, IV and V, and that seem to advance the contention that he
opposes WMATA’s motion for judgment on pleadings with respect to those counts. 5 In
regard to Count I, Tapp argues that WMATA is not just a state agency, but also an
agency of the District of Columbia, and as such it is bound to follow its own established
termination procedures, or risk violating the Fifth Amendment, notwithstanding Tapp’s
at-will status. (See Pl.’s Opp’n to Def.’s Mot. (“Pl.’s Opp’n”), ECF No. 27, at 6.)
Next, with respect to Count II, Tapp argues that the injury he suffered by the posting of
the BOLO flyer rises above mere reputational harm: it has foreclosed “his future
employment opportunities” and deprived him of “his right to live and ply his trade free
from governmentally imposed stigma.” (Id. at 10 (citation omitted).) Lastly, Tapp
opposes WMATA’s invocation of sovereign immunity as a shield to being sued for the
common law tort claims Tapp alleges in Counts IV and V. Specifically, Tapp argues
5 The Court hesitates in its description of Tapp’s brief in opposition, primarily because he claims to be addressing only the arguments that WMATA has made regarding Counts I and II. (See Pl.’s Opp’n at 8 (“Here, not only did Defendant WMATA violate procedural due process granted through the 5th Amendment . . . by failing to observe its own regulations when it terminated Plaintiff Tapp [(Count I)], it also deprived him of his constitutionally protected liberty interest also in violation of the 5th Amendment [(Count II)].”).) Nevertheless, the substance of the contentions that he makes plainly relate to WMATA’s arguments under the other counts as well, except for Count III. (See, e.g., id. at 9– 10 (arguing that WMATA’s actions are not discretionary or “governmental, and thus, [not] entitled to sovereign immunity”).) Thus, this Court has construed Tapp’s opposition brief liberally, even as it has struggled to ascertain the true nature of Tapp’s contentions.
8 that the issuance and dissemination of the BOLO flyer was not “taken in pursuit of
standard police functions” and was outside the scope of WMATA’s permissible
discretion in effecting Tapp’s termination (id. at 9; see also id. at 9–10); thus,
WMATA’s actions were not within the scope of the conduct normally covered by its
sovereign immunity (see id. 11–12).
The Defendant’s motion for judgment on the pleadings has been fully briefed
(see Pl.’s Opp’n; Def.’s Reply, ECF No. 29), and is now ripe for this Court’s
consideration.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 12(c) allows for a motion for judgment on the
pleadings “[a]fter the pleadings are closed—but early enough not to delay trial[.]” Fed.
R. Civ. P. 12(c). 6 “A motion brought under [Rule] 12(c) ‘is designed to dispose of
cases where the material facts are not in dispute and a judgment on the merits can be
rendered by looking at the substance of the pleadings and any judicially noted facts.’”
All. of Artists & Recording Cos., Inc. v. Gen. Motors Co., 162 F. Supp. 3d 8, 16 (D.D.C.
2016) (quoting Hebert Abstract Co. v. Touchstone Props., Ltd., 914 F.2d 74, 76 (5th
Cir. 1990)). “Because a Rule 12(c) motion would summarily extinguish litigation at the
6 Pleadings are closed for Rule 12(c) purposes when a complaint and an answer have been filed. See Fed. R. Civ. P. 7(a); Maniaci v. Georgetown Univ., 510 F. Supp. 2d 50, 60 (D.D.C. 2007). Here, WMATA filed a renewed motion for judgment on the pleadings under Rule 12(c) in response to the amended complaint without first filing an amended answer. Although a valid Rule 12(c) motion ordinarily requires a new answer, or a stipulation that the original answer stands, both WMATA and Tapp have proceeded as if the original answer remains in effect in response to the amended complaint. Under these circumstances, “[t]he fact that both parties presented this motion as though the original answer was responsive to the amended complaint[] is equivalent to such an implied stipulation or a tacit acquiescence[,]” see, e.g., Deming v. Turner, 63 F. Supp. 220, 222 (D.D.C. 1945), and the Court will treat the original answer as if it is responsive to the amended complaint for the purpose of WMATA’s Rule 12(c) motion.
9 threshold and foreclose the opportunity for discovery and factual presentation, the
Court must treat [such a] motion with the greatest of care and deny it if there are
allegations in the complaint which, if proved, would provide a basis for recovery.”
Baumann v. District of Columbia, 744 F. Supp. 2d 216, 221 (D.D.C. 2010) (internal
quotation marks and citation omitted).
To prevail on a Rule 12(c) motion, “[t]he moving party must show that no
material issue of fact remains to be solved and that it is entitled to judgment as a matter
of law.” Judicial Watch, Inc. v. U.S. Dep’t of Energy, 888 F. Supp. 2d 189, 191
(D.D.C. 2012) (citation omitted). The standard of review for motions pursuant to Rule
12(c) essentially mirrors the standard for motions to dismiss under Rule 12(b). See
Maniaci v. Georgetown Univ., 510 F. Supp. 2d 50, 58 (D.D.C. 2007) (“The appropriate
standard for reviewing a motion for judgment on the pleadings is virtually identical to
that applied to a motion to dismiss under Rule 12(b)(6).” (citation omitted)). However,
a Rule 12(c) motion is not identical to a Rule 12(b) motion in every regard. That is,
while the focus of a motion to dismiss lies with the plaintiff’s inability to proceed on
his claim (whether due to the Court’s lack of subject-matter jurisdiction, or the
complaint’s lack of factual allegations to support a claim, or otherwise), a motion for
judgment on the pleadings centers upon the substantive merits of the parties’ dispute.
Put another way,
The granting of a Rule 12(b) motion typically merely means that the plaintiff has failed to satisfy one of the procedural prerequisites for asserting his claim for relief. A motion for judgment on the pleadings, however, theoretically is directed towards a determination of the substantive merits of the controversy; thus, federal courts are unwilling to grant a judgment under Rule 12(c) unless it is clear that the merits of the controversy can be fairly and fully decided in this summary manner.
10 5c Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1369 (3d
ed. 2004) (footnotes omitted).
“It is axiomatic . . . that for purposes of the court’s consideration of the Rule
12(c) motion, all of the well pleaded factual allegations in the adversary’s pleadings are
assumed to be true and all contravening assertions in the movant’s pleadings are taken
to be false.” Id. § 1368. Accordingly, in deciding a Rule 12(c) motion for judgment on
the pleadings, the court relies on “the facts alleged in the complaint, documents
attached to the complaint as exhibits or incorporated by reference, and matters about
which the court may take judicial notice.” Allen v. U.S. Dep’t of Educ., 755 F. Supp. 2d
122, 125 (D.D.C. 2010) (citation omitted). However, “the court is not bound to accept
the legal conclusions of the non-moving party.” Baumann, 744 F. Supp. 2d at 222
(citing Taylor v. F.D.I.C., 132 F.3d 753, 762 (D.C. Cir. 1997)). By contrast, the court
may not consider “[f]actual allegations in briefs or memoranda of law . . . , particularly
when the facts they contain contradict those alleged in the complaint.” Robinson, 403
F. Supp. 2d at 47 (citing Henthorn v. Dep’t of Navy, 29 F.3d 682, 688 (D.C. Cir. 1994)).
III. ANALYSIS
A. WMATA Is Entitled To Judgment On Count I Because, As An At-Will Employee, Tapp Did Not Have A Constitutionally Protected Property Interest In His Employment
In Count I of his amended complaint, Tapp claims that WMATA’s termination of
his employment without strict compliance with its internal procedures violated his Fifth
Amendment due process rights. (See Am. Compl. ¶ 23–25 (referencing U.S. Const.
amend. V, which provides that “[n]o person shall be . . . deprived of life, liberty, or
property without due process of law”); see also Pl.’s Opp’n at 8 (“WMATA violate[d]
11 procedural due process granted through the 5th Amendment to the United States
Constitution by failing to observe its own regulations when it terminated Plaintiff
Tapp[.]”).) In order to establish a Fifth Amendment due process violation, a plaintiff
must demonstrate (1) that he was “deprived of protected property or liberty interests,”
Orange v. District of Columbia, 59 F.3d 1267, 1273 (D.C. Cir. 1995) (citation omitted);
and (2) that, in effecting that deprivation, the defendant did not afford him the
procedural safeguards guaranteed by the Constitution, see id. (citing Logan v.
Zimmerman Brush Co., 455 U.S. 422, 428 (1982)). The first element in this analysis is
a threshold inquiry for the courts. Thus, “[o]nly if the court first finds that a liberty or
property interest is affected will it go on to a balancing of interests analysis to
determine what level of procedural protection [would have been] appropriate.”
Mazaleski v. Treusdell, 562 F.2d 701, 709 (D.C. Cir. 1977) (internal quotation marks
and citations omitted).
This Court perceived Count I of Tapp’s amended complaint as alleging that the
termination of his employment was an unconstitutional deprivation of his property
interests. (See Am. Compl. ¶¶ 23–25.) 7 It is by now well established that, to sustain a
7 Tapp does not specify in his amended complaint whether he is alleging a violation of his liberty or property interest in Count I. It is well established that, while termination of a public employee may impair the liberty interest in pursuing a chosen career, see Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 572–73 (1972), to state a claim for a deprivation of liberty arising from the termination of employment, a plaintiff must show either that the defendant publicized the reasons for his discharge so as to “damage his standing and associations in his community” or “foreclose[] his freedom to take advantage of other employment opportunities.” McCormick v. District of Columbia, 899 F. Supp. 2d 59, 65 (D.D.C. 2012), aff’d, 752 F.3d 980 (D.C. Cir. 2014). In Count I, Tapp does not allege that the reasons behind his termination were publicized by WMATA, or that the basis for his discharge was so stigmatizing that it foreclosed his future employment opportunities. Moreover, the allegation that WMATA’s actions regarding the distribution of the BOLO flyer caused these harms and implicated Tapp’s liberty interests appears in Count II of Tapp’s amended complaint. (See Am. Compl. ¶ 33.) Thus, this Court reads Count I solely as alleging a deprivation of a property interest in Tapp’s continued employment.
12 deprivation of property claim that is based on the termination of employment, a plaintiff
“must demonstrate a property interest in continued employment.” Orange, 59 F.3d at
1274. “Most cases involving government employees fall into one of two categories:
terminable at will or terminable only for cause.” Hall v. Ford, 856 F.2d 255, 265 (D.C.
Cir. 1988). That is, a plaintiff has “a property interest in his job only if, under District
of Columbia law, he did not serve in his job at his employer’s will, but he could be
removed only for cause.” Thompson v. District of Columbia, 530 F.3d 914, 918 (D.C.
Cir. 2008) (internal quotation marks and citation omitted). The reason behind this is
clear: those employees who are terminable only for cause “can expect to remain
employed unless they do something warranting their termination[,]” while “[t]hose who
are terminable at will have no property interest [in their employment] because there is
no objective basis for believing that they will continue to be employed indefinitely.”
Hall, 856 F.2d at 265; see also Bd. of Regents of State Colls. v. Roth, 408 U.S. 564,
577–78 (1972) (finding that no property interest arises from a limited-term contract that
is not renewed); Mills v. D.C. Dep’t of Mental Health Saint Elizabeths Hosp. Managers,
756 F. Supp. 2d 55, 59 (D.D.C. 2010) (“As a general rule, an at-will employee may be
discharged at any time and for any reason, or for no reason at all, and hence has no
protected property interest triggering due process concerns[.]” (internal quotation marks
and citations omitted)); Ekwem v. Fenty, 666 F. Supp. 2d 71, 78 (D.D.C. 2009) (finding
that a government at-will employee had “no property interest in his continued
employment”).
Here, although Tapp alleges in Count I that “WMATA wrongfully and illegally
terminated [his] employment” (Am. Compl. ¶ 24) “in violation of the 5th Amendment”
13 because it “failed to observe its own rules” when it fired him (id. ¶ 25), Tapp was
indisputably an at-will employee of WMATA, and even he concedes this fact. (See
Pl.’s Opp’n at 6 (asserting that “the fact that Plaintiff was an at-will employee” should
not excuse WMATA’s behavior)). Therefore, this Court concludes that Count I fails as
a matter of law because Tapp’s employment did not constitute a property right that
triggers the procedural protections of the Due Process Clause. 8
B. Because WMATA Is Not A “Person” Subject To 42 U.S.C. § 1983, It Is Entitled To Judgment On Tapp’s Count II Claim
In Count II, Tapp alleges that WMATA is liable under Section 1983 of Title 42
of the United States Code because the “false and defamatory [BOLO] flyer has violated
Plaintiff’s liberty to be able to live and freely ply his trade as it has so stigmatized him
that it has foreclosed significant employment opportunities[.]” (Am Compl. ¶ 33; see
also id. at 7 (alleging a “[d]eprivation of [l]iberty” in violation of the Fifth and
Fourteenth Amendments).) In its Rule 12(c) motion, WMATA contends that, even if
the BOLO flyer deprived Tapp of a constitutionally protected liberty interest, WMATA
“is not subject to suit for claims under 42 U.S.C. § 1983 because it is not a ‘person’
within the meaning of the statute[.]” (Def.’s Mot. at 9.)
8 WMATA spends considerable time and effort addressing Count I under the standard set out in United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954), which “has come to stand for the proposition that agencies may not violate their own rules and regulations to the prejudice of others.” Battle v. FAA, 393 F.3d 1330, 1336 (D.C. Cir. 2005). (See also Def.’s Mot. at 6–9; see, e.g., id. at 7 (“There are four reasons why Plaintiff’s Accardi claim, articulated in Count I of his Amended Complaint, must be dismissed.”)). However, even liberally construed, Tapp’s amended complaint makes no mention of this type of claim, which is a distinct cause of action that differs from a claim brought under the Fifth Amendment’s Due Process Clause. See Vanover v. Hantman, 77 F. Supp. 2d 91, 103–04, 106 (D.D.C. 1999) (explaining that the Accardi doctrine is separate and apart from a constitutional due process analysis). Plaintiff had an opportunity to press an Accardi claim in his complaint, if he had so desired, when he was granted leave to amend his pleading after a full round of briefing on his claims (see Min. Order of Dec. 10, 2015), but he failed to do so. Consequently, this Court will not now read this cause of action into the amended complaint.
14 This Court agrees. Section 1983 states that “[e]very person” who, under the
color of state law, subjects another to the deprivation of any constitutional right shall be
liable to the injured party. 42 U.S.C. § 1983. But no less an authority than the
Supreme Court of the United States has made clear that States and their agencies and
officials cannot be sued under Section 1983 because they are not “persons” within the
meaning of that statute. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71
(1989); see also Al Fayed v. C.I.A., 229 F.3d 272, 274 (D.C. Cir. 2000) (recognizing
that in Will, the Supreme Court held that the term “person” under Section 1983 excludes
States as a matter of statutory interpretation). And there is no question that, as an
interstate compact agency created by Maryland, Virginia, and the District of Columbia,
WMATA is an arm of its signatory states for Section 1983 purposes and, as a result,
cannot be sued under that statute. See, e.g., Cutchin v. District Of Columbia, No.
14-0206, 2016 WL 1267154, at *3 (D.D.C. Mar. 31, 2016) (dismissing a Section 1983
claim against WMATA because it is not a “person[]” under the statute); Headen v.
WMATA, 741 F. Supp. 2d 289, 294 (D.D.C. 2010) (same); Lucero–Nelson v. WMATA,
1 F. Supp. 2d 1, 7–8 (D.D.C. 1998) (same). Thus, WMATA is entitled to judgment on
Count II.
C. WMATA Is Immune From Liability For The Common Law Tort Claims That Tapp Brings In Counts IV and V
In addition to the alleged constitutional violations that Tapp has brought in this
action, Tapp seeks to maintain tort claims against WMATA for false light/privacy
invasion (Count IV), and for intentional infliction of emotional distress (Count V),
arising from WMATA’s publication of the BOLO flyer after his termination. (See Am
Compl. ¶¶ 34–38, 53–58.) As noted, WMATA is “a quasi-governmental entity created
15 by its signatory parties,” and that means it “is entitled to share the sovereign immunity
of those parties with respect to common law tort actions.” Beatty v. WMATA, 860 F.2d
1117, 1126 (D.C. Cir. 1988) (internal quotation marks and citation omitted); see also
Morris v. WMATA, 781 F.2d 218, 219–20 (D.C. Cir. 1986). Thus, “[t]o the extent the
. . . complained-of actions fall within [WMATA’s] cloak of immunity,” this Court
“lack[s] subject matter jurisdiction over such claims.” Smith v. WMATA, 290 F.3d 201,
205 (4th Cir. 2002). Consequently, in order to confirm that the Court has subject matter
jurisdiction over Tapp’s tort claims (or, alternatively, in order to determine that no
subject matter jurisdiction exists such that WMATA is entitled to judgment as a matter
of law with respect to these claims), this Court must evaluate the scope of WMATA’s
immunity.
It is well established that WMATA has some degree of sovereign immunity by
virtue of having been created through a compact entered into by two sovereign States—
Maryland and Virginia—and a municipality that is controlled by Congress. See U.S.
Const. amend. XI (establishing States’s constitutional immunity from suit); see also
Morris, 781 F.2d at 219 (“Congress has power to legislate for the District of Columbia
and to create an instrumentality that is immune from suit.”). However, it is also clear
that sovereign immunity can be abridged by statute, and Section 80 of the Washington
Metropolitan Area Transit Authority Compact, D.C. Code § 9–1107.01—the charter
pursuant to which WMATA was established—includes a limited waiver of immunity
that specifies the circumstances in which that immunity can, and cannot, be invoked to
defend against tort claims. As relevant here, Section 80 provides that WMATA
shall be liable for its contracts and for its torts and those of its Directors, officers, employees and agent committed in the conduct of any
16 proprietary function, in accordance with the law of the applicable signatory (including rules on conflict of laws), but shall not be liable for any torts occurring in the performance of a governmental function.
D.C. Code Ann. § 9-1107.01(80) (emphasis added). Thus, for present purposes, the key
question is whether WMATA’s decisions to issue a BOLO flyer and to disseminate it
publicly were acts that were committed pursuant to a “governmental function” of the
agency, or whether WMATA’s acts can otherwise be characterized as committed in the
conduct of WMATA’s “proprietary function” (i.e., whether they are ministerial, non-
discrete acts). See McKethean v. WMATA, 588 A.2d 708, 712–13 (D.C. 1991).
Not surprisingly, WMATA’s memorandum in support of its Rule 12(c) motion
maintains that this Court should find that WMATA was not performing a proprietary
function when it decided that a BOLO should issue, because warning other employees
regarding a former employee’s termination is a discretionary employment action. (See
Def.’s Mot. at 11–12.) WMATA also insists that, when WMATA police undertook to
disseminate the BOLO flyer, they were performing a classic governmental function
because “[p]olice activity is quintessentially governmental.” (Def.’s Mot. at 11.) Tapp
responds that Metro police did not post the BOLO flyers “in pursuit of standard police
functions” but, instead, were directed to do so by the “WMATA agents who engaged in
his illegal termination[.]” (Pl.’s Opp’n at 9.) Further, Tapp argues that “while
Defendant WMATA may have sovereign immunity with respect to decisions to hire and
fire, . . . stigmatizing an employee and foreclosing his right to future employment
opportunities” are not required aspects of terminating an employee’s employment, and
thus, the BOLO decision was “not a discretionary function shielded by sovereign
immunity.” (Id. at 10.) As explained below, this Court finds that WMATA has the
better of this dispute.
17 “Because the distinction between proprietary and governmental functions has
created a quagmire that has long plagued the law of municipal corporations,” courts in
this Circuit “have interpreted section 80 as incorporating the distinction between
discretionary and ministerial functions[,]” which evolved under the jurisprudence that
pertains to the Federal Tort Claims Act, 28 U.S.C. §§ 2671–2680. KiSKA Const. Corp.
v. WMATA, 321 F.3d 1151, 1158 (D.C. Cir. 2003) (internal quotation marks and
citations omitted). Under this framework, when the agency commits a ministerial act, it
is engaging in a proprietary function. For example, WMATA’s operation of the metro
system and its implementation of transportation designs have been found to be
ministerial/proprietary acts, and, therefore, such acts are not shielded from suit if
conducted negligently. See, e.g., Heffez v. WMATA, 569 F. Supp. 1551, 1553 (D.D.C.
1983) (managing the subway system), aff’d, 786 F.2d 431 (D.C. Cir. 1986); Qasim v.
WMATA, 455 A.2d 904, 906 (D.C. 1983) (en banc) (provision of mass transportation).
As a practical matter, for the purpose of determining the scope of immunity in
contexts such as this one, courts first ask whether the challenged conduct “amounts to a
‘quintessential’ governmental function, like law enforcement.” Beebe v. WMATA, 129
F.3d 1283, 1287 (D.C. Cir. 1997) (citing Burkhart v. WMATA, 112 F.3d 1207, 1216
(D.C. Cir. 1997); see also id. (emphasizing that such acts always “fall[] within the
scope of WMATA’s sovereign immunity”). If this is so, then any tort stemming from
such an act is protected by sovereign immunity and the Court’s inquiry ends. If the
allegedly tortious activity is not a quintessential government function, however, then a
two-part test for determining whether the act was committed pursuant to a discretionary
function applies. First, the court considers “whether any statute, regulation, or policy
18 specifically prescribes a course of action for [the decision-maker] to follow.” Id.
(internal quotation marks and citation omitted). Such a legal prescription, if not
followed, may render the act non-discretionary and thus proprietary for the purpose of
sovereign immunity. See KiSKA, 321 F.3d at 1159. But if the governing regulation
leaves room for the exercise of discretion, or if there is no regulation proscribing a
particular course of conduct at all, the court considers a second question: “whether the
exercise of discretion is grounded in social, economic, or political goals[,]” and if it
answers that question in the affirmative, then the decision at issue is deemed
susceptible to policy judgment and is seen as fitting “within section 80’s retention of
sovereign immunity.” Beebe, 129 F.3d at 1287. At this stage, the key determinant is
the decision-maker’s exercise of discretion and the limits (if any) on his decision-
making, i.e., only those acts that are not discretionary are properly deemed to have been
taken in furtherance of ministerial/proprietary functions and subject to suit. See KiSKA,
321 F.3d at 1158.
With this legal framework in mind, this Court concludes that WMATA’s decision
to issue a BOLO warning as part of Tapp’s post-termination process was not an act that
was taken in furtherance of a quintessential governmental function, but was an exercise
of discretion by WMATA as an employer such that the agency’s sovereign immunity
shields it from liability for that decision. It is clear beyond cavil that WMATA’s
“employment decisions are not quintessential governmental functions—after all, private
entities also hire and fire employees[,]” Beebe, 129 F.3d at 1287—but WMATA might
nevertheless be subject to suit for such employment decisions if they are deemed
ministerial (proprietary) under the two-part “discretionary function” test. Here, the
19 Compact confers upon WMATA expansive authority regarding its personnel practices,
including its ability to terminate offices and employees, see D.C. Code
§ 9-1107.01(12)(g) (granting WMATA the power to “[c]reate and abolish offices,
employments and positions . . . as it deems necessary for the purposes of the Authority,
and fix and provide for the qualification, appointment, [and] removal, . . . of its officers
and employees without regard to the laws of any of the signatories” (emphasis added)),
and Tapp has not pointed to any regulation or post-termination procedure that restricts
WMATA’s authority to issue the BOLO flyer. This Court is not aware of any binding
limitation on WMATA in this regard; thus, the only determination left for this Court is
whether WMATA’s decision to issue the BOLO flyer was an exercise of discretion
grounded in social, economic, or political goals.
This Court concludes that it was. Courts have held that decisions regarding the
firing of WMATA employees are discretionary, and the scope of that discretion
encompasses not only the ultimate discharge determination, but also the manner in
which the termination is carried out. See Smith v. WMATA, No. Civ. A. 95-0687-LFO,
1997 WL 182286, at *4 (D.D.C. Apr. 4, 1997), aff’d, No. 97-7071, 1998 WL 315575
(D.C. Cir. May 28, 1998); see also Malloy v. WMATA, No. CV 15-1499, 2016 WL
2962196, at *7 (D.D.C. May 20, 2016) (“WMATA’s actions in suspending and
removing [the plaintiff] from his position . . . are immune for suit in tort.”). This is
because such employment decisions—and the acts necessary to implement them—
inherently involve numerous social and economic factors, “including budgetary
constraints, public perception, economic conditions, individual backgrounds, office
diversity, experience and employer intuition[,]” Beebe, 129 F.3d at 1287 (internal
20 quotation marks and citations omitted). Indeed, in this very case, it appears that
WMATA’s decision to issue the BOLO flyer was rooted in safety considerations.
Cf. James v. WMATA, 649 F. Supp. 2d 424, 430 (D. Md. 2009) (finding no waiver of
sovereign immunity under Section 80 where WMATA’s decision to restrict activities
and entry onto its property involved “policy concerning the promotion of safe and
efficient transportation”). It follows that any tortious conduct that WMATA may have
committed here is immune from suit “because such torts arose out of WMATA’s
administration of its personnel system” and property, and its decision in this regard was
made pursuant to the exercise of its discretion. Smith, 1997 WL 182286, at *3.
To the extent that Tapp is challenging the dissemination of the BOLO flyer by
WMATA police, separate and apart from the agency’s decision to issue the warning,
this Court further finds that that the WMATA police were engaged in an activity that is
quintessentially governmental. See Dant v. District of Columbia, 829 F.2d 69, 74 (D.C.
Cir. 1987) (“WMATA’s police activities are an exercise of a ‘governmental’
function[.]”). Section 76 of the Compact enables and authorizes WMATA to maintain a
police force with significant police power to protect passengers and property, see D.C.
Code § 9-1107.01(76)(a), and it also grants WMATA the power to promulgate rules and
regulations to assure the safety and protection of the transit facilities, which are
enforceable by the WMATA police force, see id. § 9-1107.01(76)(e). Thus, this Court
finds that the activities of the WMATA police in disseminating the BOLO flyer here,
which was aimed at protecting the metro riders, employees, and property, were
quintessentially governmental such that any tort stemming from that conduct is barred
by WMATA’s sovereign immunity.
21 D. Count III Cannot Be Resolved Pursuant To WMATA’s Rule 12(c) Motion Because, On Its Face, The Amended Complaint Does Not Allege Facts That Establish That Tapp Has Failed To Exhaust Administrative Remedies As A Title VII Claim Requires
WMATA contends that it is entitled to judgment on Count III because Tapp has
failed to exhaust the administrative remedies that he must undertake in order to sustain
an employment-discrimination claim brought under Title VII. (See Def.’s Mot. at 12–
13 (arguing that “[t]here is no record that Plaintiff has filed the requisite complaint with
the EEOC” because Tapp did not include a “right-to-sue letter from the EEOC” in his
amended complaint nor does he allege “that he has filed a complaint with the EEOC
within the time period specified by the statute”). WMATA further maintains that,
because Tapp’s opposition to its Rule 12(c) motion does not address this failure to
plead exhaustion, this Court should treat the exhaustion matter as conceded. (See
Def.’s Reply at 5.)
This Court will address the last point first. It is true that, “when a plaintiff files
an opposition to a dispositive motion and addresses only certain arguments raised by
the defendant, a court may treat those arguments that the plaintiff failed to address as
conceded.” Buggs v. Powell, 293 F. Supp. 2d 135, 141 (D.D.C. 2003) (citing F.D.I.C.
v. Bender, 127 F.3d 58, 67–68 (D.C. Cir. 1997)); see also LCvR 7(b). But exhaustion is
an affirmative defense that must be pled and proven by the defendant, see Brown v.
Marsh, 777 F.2d 8, 13 (D.C. Cir. 1985), and the D.C. Circuit has strongly suggested
that, under such circumstances, the plaintiff’s silence on the issue is insufficient to
warrant the entry of judgment in the defendant’s favor, see Cohen v. Bd. Of Trs. of the
Univ. of the D.C., 819 F.3d 476, 481–83 (D.C. Cir. 2016). Thus, this Court will
proceed to entertain the merits of WMATA’s contention that it is entitled to judgment
22 per Rule 12(c) due to Tapp’s failure to plead facts that establish that administrative
exhaustion has occurred. Cf. Bender, 127 F.3d at 68 (noting that “the discretion to
enforce [the concession] rule lies wholly with the district court”).
Because a plaintiff’s “failure to exhaust is an affirmative defense that must be
pleaded and established by the defendant[]” in Title VII cases, a Title VII plaintiff
“need not plead exhaustion in the complaint.” Briscoe v. Costco Wholesale Corp., 61 F.
Supp. 3d 78, 85 (D.D.C. 2014); see also Menominee Indian Tribe of Wis. v. United
States, 614 F.3d 519, 527 (D.C. Cir. 2010) (noting that Title VII exhaustion
requirements are not jurisdictional). The Federal Rules of Civil Procedure “do not
require a plaintiff to anticipate affirmative defenses which might be raised by a
defendant.” Chem-Met Co. v. Metaland Int’l, Inc., No. Civ. A. 96-2548, 1997 WL
74541, at *2 (D.D.C. Feb. 19, 1997) (citing Fed. R. Civ. P. 8(a)). And it is precisely
“[b]ecause exhaustion is not a pleading requirement[,]” that Tapp was “free to omit”
from his complaint allegations of fact that relate to the exhaustion issue. Kim v. United
States, 632 F.3d 713, 719 (D.C. Cir. 2011). This means that WMATA’s suggestion that
it is entitled to judgment in its favor on exhaustion grounds simply and solely because
Tapp has faile to allege facts to establish exhaustion (see Def.’s Mem. at 12–13) cannot
be countenanced. Moreover, given that Tapp’s amended complaint is devoid of any
facts related to exhaustion, this Court would be “required to consider matters outside
the pleadings to determine the validity of the [Defendant’s] affirmative defense[,]” id.,
which this Court cannot do when resolving a Rule 12(c) motion, Robinson, 403 F. Supp.
2d at 47 (explaining that, under Rule 12(c), “the Court may not rely on facts outside of
the pleadings” in reaching the merits of the argument). In other words, even if
23 WMATA had undertaken to provide this Court with evidence that demonstrated a lack
of exhaustion by Tapp (it has not done so), this Court could only grant WMATA’s Rule
12(c) motion if it was clear on the face of the amended complaint that Tapp failed to
exhaust his administrative remedies. See Chem-Met, 1997 WL 74541, at *2 (denying a
Rule 12(c) motion because it “improperly seeks to require the plaintiff to plead facts to
negate an anticipated affirmative defense”); Brown, 777 F.2d at 13, 16–18; cf. Wright &
Miller, supra, § 1368 (explaining that “[i]f the affirmative defense clearly is established
in the pleadings . . . then a judgment on the pleadings may be appropriate[,]” but if
“matter[s] outside the pleadings would have to be introduced to establish [the
affirmative] defense” then “a summary judgment motion rather than one for judgment
on the pleadings undoubtedly [is] the appropriate procedure”).
In sum, because Tapp’s amended complaint does not allege any facts that relate
to the affirmative defense of non-exhaustion, this Court cannot conclude, as a matter of
law, that “plaintiff cannot prove any set of facts entitling him to relief.” Lans v. Adduci
Mastriani & Schaumberg L.L.P., 786 F. Supp. 2d 240, 265 (D.D.C. 2011); see, e.g.,
McNamara v. Picken, 866 F. Supp. 2d 10, 17 (D.D.C. 2012) (denying a 12(c) motion
because the defendant bore the burden of proving his affirmative defense and the
complaint’s facts did not support such finding). What is more, WMATA’s Rule 12(c)
motion cannot be transformed into a motion for summary judgment on exhaustion
grounds, see Fed. R. Civ. P. 12(d), because WMATA itself has not provided any proof
to support its contention that Tapp failed to exhaust his administrative remedies. See
Drewrey v. Clinton, 763 F. Supp. 2d 54, 61 (D.D.C. 2011) (“Meager, conclusory
allegations that the plaintiff failed to exhaust his administrative remedies will not
24 satisfy the defendant’s burden.” (citing Brown, 777 F.2d at 12)), aff’d, 466 F. App’x 9
(D.C. Cir. 2012). As a result, WMATA’s motion must be denied with respect to Count
III of Tapp’s amended complaint, and the Court will permit the parties to engage in a
limited period of discovery on the exhaustion issue, after which WMATA may move for
summary judgment, proffering evidence to support its affirmative defense, if it so
chooses.
IV. CONCLUSION
For the reasons explained above, WMATA is entitled to judgment on Counts I,
II, IV, and V because there is no material issue of fact with respect to these claims as
Tapp has alleged them, and even so, these claims cannot be sustained as a matter of
law. But, Tapp’s Title VII employment-discrimination claim (Count III) survives
WMATA’s Rule 12(c) motion, because the Court cannot conclude that Tapp failed to
exhaust his administrative remedies based solely on the information set forth in the
amended complaint. Accordingly, and as set forth in the accompanying order,
WMATA’s motion for judgment on the pleadings under Rule 12(c) will be GRANTED
IN PART AND DENIED IN PART, and the Court will permit the parties to engage in
a period of limited discovery solely with respect to the issue of whether Tapp exhausted
the administrative remedies that are required to sustain his Title VII claim.
DATE: September 30, 2016 Ketanji Brown Jackson KETANJI BROWN JACKSON United States District Judge