Court therefore found that "plaintiff has pointed to nothing in
the Manual that evinces an intent to create an employment contract
for a fixed period of time, [and therefore] summary judgment is
appropriate." See id. at 674. The plaintiff's current submissions
provide no new information to change the Court's decision, and thus,
the Court declines to reconsider its dismissal of Count Two.
B. Count Three: Wrongful Demotion for Whistleblowing
Count Three of plaintiff's original complaint asserted a common law
claim of wrongful demotion, alleging that he was demoted as a part of
a pattern of retaliatory treatment because he refused to follow
certain directives given by supervisor Bassily that violated safety
rules, and because he then reported Bassily. The Court dismissed this
claim because under Adams v. George W. Cochran & Co. Inc.,
597 A.2d 28 (D.C. 1991), the only exception to the at-will employment
doctrine is if the employee was fired for refusing to violate the law. The
Court found that plaintiff's situation did not fit this narrow public
policy exception, but more appropriately fit the "whistleblower"
situation, which the D.C. Court of Appeals held in Gray v. Citizens
Bank of Washington, 602 A.2d 1096, 1097 (D.C. 1992), could not
support a wrongful discharge action.
Plaintiff now asserts that the Court must reconsider the dismissal
in light of the subsequent overruling of Gray. In Carl v. Children's
Hospital, 702 A.2d A.2d 159 (D.C. 1997), the D.C. Court of Appeals
clarified that the narrow exception recognized in Adams was not the
only public policy exception to the at-will employment doctrine, but
that other public policy exceptions such as a whistleblower
situation, exist. WMATA opposes reconsideration for three reasons:
(1) the Court lacks jurisdiction over all wrongful demotion claims
sounding in tort against WMATA because WMATA is immune from tort
claims based on discretionary decisions; (2) although Carl expanded
the public policy exception to the at-will employment doctrine, it
applies only to discharges, not demotions; and (3) plaintiff cannot
establish a prima facie case of retaliation for his alleged
whistleblowing. The Court finds that WMATA is immune from tort claims
based on discretionary decisions, and even if it were not, that
plaintiff has not established a prima facie case of retaliation for
whistleblowing. The Court need not reach WMATA's remaining defense
that Carl does not apply to demotions.*fn6
(1) WMATA's Immunity for Discretionary Decisions
Section 80 of the WMATA Compact provides that WMATA "shall be
liable for its torts . . . committed in the conduct of any
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. § 1-2431 at § 80. This Circuit has
established tests for determining when an activity is "governmental"
and thus accorded immunity. See Beebe v. WMATA,
129 F.3d 1283, 1287
(D.C. Cir. 1997); Burkhardt v. WMATA, 112 F.3d 1207, 1216-17 (D.C.
Cir. 1997). An activity that amounts to a "quintessential"
governmental function, such as law enforcement, is clearly
"governmental" and falls within the scope of sovereign immunity.
Beebe, 129 F.3d at 1287. For activities that are not quintessential
governmental functions, the Court must consider whether the activity
is "discretionary" or "ministerial." Id. Only if the activity is
"discretionary" will it be considered "governmental" and therefore
protected by sovereign immunity. Id. An activity that is found to be
"ministerial" is not protected by sovereign immunity.
How to distinguish between discretionary and ministerial activities
can be difficult. The Supreme Court has stated that a discretionary
function "is one that involves choice or judgment." United States v.
Gaubert, 499 U.S. 315, 325 (1991). In Beebe v. WMATA, the D.C.
Circuit set forth a test from this definition:
To determine whether an activity is discretionary,
and thus shielded by sovereign immunity, we ask
whether any statute, regulation, or policy
specifically prescribes a course of action for an
employee to follow. If no course of action is
prescribed, we then determine whether the exercise
of discretion is grounded in social, economic,
or political goals. If so grounded, the activity is
"governmental," thus falling within section 80's
retention of sovereign immunity.
129 F.3d at 1287 (internal quotations and citations omitted); see
also Burkhardt, 112 F.3d at 1217.
Based on this standard, the D.C. Circuit has determined that
"decisions concerning the hiring, training, and supervising of WMATA
employees are discretionary in nature, and thus immune from judicial
review." Burkhardt, 112 F.3d at 1217; see Smith v. WMATA, No.
97-7071, 1998 WL 315575 (D.C. Cir. May 28, 1999) ("The doctrine of
sovereign immunity bars appellant's tort claims against his employer,
as the claims arise from the employer's discretionary actions in the
course of the administration of its personnel system."); Hensley v.
LaPorte and WMATA, No. 98-7163, 1998 WL 929772 (D.C. Cir. Dec. 30,
1998). That conclusion largely was based upon the observation that
"[e]mployment decisions require consideration of numerous factors,
including budgetary constraints, public perception, economic
conditions, individual backgrounds, office diversity, experience and
employer intuition." Beebe, 129 F.3d at 1287 (internal quotations
omitted); see Burkhardt, 112 F.3d at 1217.
For example, an decision to reorganize an office which eliminates
certain positions is a discretionary act. See Beebe, 129 F.3d at 1288
(dismissing WMATA employee's tort claims arising out of a personnel
reorganization); see Smith v. WMATA, 1997 WL 182286 (D.D.C. Apr. 4,
1997) (same). In Burkhardt v. WMATA, a passenger's tort claims
against WMATA for negligent hiring, training, and supervision of its
bus drivers were dismissed because such activities fell within the
scope of discretionary activities. Burkhardt, 112 F.3d at 1217. In
Jones v. WMATA, 1992 U.S. Dist. LEXIS 11504, at * 15 (D.D.C., Aug. 7,
1992), a plaintiff brought tort claims of discriminatory and
retaliatory discharge and failure to promote against WMATA, because
WMATA had not promoted plaintiff after she applied unsuccessfully for
eight promotions in three years. The Court determined that "[h]ow
WMATA chooses to administer its employees is certainly a
discretionary decision and therefore a governmental function," and
dismissed her tort claims.
As the Beebe Court noted, "not every action connected in some way
to an employment decision amounts to a discretionary function."
Beebe, 129 F.3d at 1288. Here, however, the Court finds that the
demotion complained of by plaintiff amounts to a discretionary choice
made by WMATA in its administration of
personnel. WMATA therefore is
immune from this tort claim.
(2) Prima Facie Case of Retaliation
Even if WMATA were not immune from this tort claim, the Court finds
that plaintiff has not established a prima facie case of retaliation
on the basis of his alleged whistleblowing activity.*fn7 To
establish a prima facie case of retaliation, a plaintiff must show
that: (1) he engaged in a protected activity, (2) the employer took
an adverse personnel action, and (3) there was a causal connection
between the two. See McDonnell Douglas v. Green, 411 U.S. 792 (1973).
Here, even if plaintiff shows that he engaged in a protected activity
and that WMATA demoted him, the Court finds insufficient evidence to
conclude that a causal connection existed between the two. Plaintiff
reported the safety incident in 1986; six years later, during which
period various events led plaintiff to file an internal grievance
alleging age discrimination, plaintiff was demoted. The Court finds
that this passage of time alone makes any causal connection unlikely;
furthermore, plaintiff does not assert that his discharge was solely
or even substantially because he reported a safety violation. See
Wallace v. Skadden, Arps, Slate, Meagher & Flom, 715 A.2d 873, 886
(D.C. 1998) (where nearly two years and numerous events had
intervened between the time plaintiff complained of ethical
violations by supervising attorneys and the time she was discharged,
court found no causal connection).
III. Amendment of Complaint
Plaintiff seeks to amend his complaint by adding two claims: a
common law claim of wrongful demotion in retaliation for alleging age
discrimination, and a claim for violations of the DCHRA based on age
discrimination and retaliation. At this stage of the proceedings,
plaintiff may amend his complaint "only by leave of court or by
written consent of the adverse party." Fed. R. Civ. P. 15(a). Though
the Rule provides that "leave shall be freely given when justice so
requires" id., denial of leave to amend is appropriate in cases of
"undue delay, . . . repeated failure to cure deficiencies by
amendment previously allowed, undue prejudice to the opposing party
by virtue of allowance of the amendment, [or] futility of amendment."
Foman v. Davis, 371 U.S. 178, 182 (1962); see Atchison v. District of
Columbia, 73 F.3d 418, 425 (D.C. Cir. 1996).
A. Proposed Count Four: Wrongful Demotion for Protesting Age
In addition to requesting reinstatement of Count Three, which
asserts the common law tort of wrongful demotion in retaliation for
an alleged whisteblowing act, plaintiff seeks to add a common law
claim of wrongful demotion in retaliation for complaining about age
discrimination. Plaintiff argues that a wrongful demotion claim for
retaliation against complaining about age discrimination is clearly
contained in the public policy of the District of Columbia, as the
DCHRA expressly declares such conduct to be unlawful. Plaintiff also
claims that WMATA would suffer no prejudice from adding this claim
since the facts underlying this claim are the same as those
underlying the ADEA claim, and WMATA has completed all of the
discovery relating to the facts related to this claim, and was
prepared to defend this claim at trial.*fn8
In its earlier Opinion, the Court did find that plaintiff presented
to sustain a prima facie case of retaliatory
demotion for protesting age discrimination under the ADEA. See 922 F.
Supp. at 673.*fn9 However, for the same reasons discussed in Part
II(B)(1) of this Opinion, the Court finds that WMATA's decision to
demote plaintiff arose in the course of administering its personnel
system, and therefore, a tort claim arising out of that decision is
barred on immunity grounds. The Court therefore finds that adding the
claim would be futile, and denies leave to add the claim.
B. Proposed Count Five: Violations of DCHRA
Plaintiff alleges that WMATA violated the DCHRA when it refused to
promote him and subsequently demoted him; such conduct, he alleges,
constituted age discrimination and retaliation for filing an age
discrimination grievance. WMATA, however, argues that it is not
subject to suit under the DCHRA, and therefore, adding a claim under
the DCHRA would be futile because the proposed claim would not
survive a motion to dismiss. See James Madison Ltd. v. Ludwig,
82 F.3d 1085, 1099 (D.C. Cir. 1996) ("futility" means inability to
survive a motion to dismiss).
The Court agrees that adding a DCHRA claim would be futile. As
noted, WMATA was established by a Compact signed by Maryland,
Virginia, and the District of Columbia, and agreed upon by Congress.
It is well-established that WMATA is not subject to the DCHRA because
WMATA is an interstate compact agency and instrumentality of three
separate jurisdictions. See, e.g., Lucero-Nelson v. WMATA, I F.
Supp.2d 1, 7 (D.D.C. 1998) (dismissing DCHRA claims of sexual
harassment, national origin discrimination, and hostile working
environment); Jones, 1992 U.S. Dist. Lexis 11504 at * 15 (dismissing
DCHRA claims of retaliatory and discriminatory treatment based on
age, race, and sex); see 4 Op. of Corp. Counsel at 203, 205 (op. by
then Acting Corp. Counsel Judith Rogers). The Court therefore denies
plaintiff's motion to amend the complaint to add a claim under the
DCHRA.*fn10 Accordingly, it hereby is
ORDERED, that the Court's stay is lifted. It hereby further is
ORDERED, that defendant's motion to dismiss is granted. It hereby
ORDERED, that plaintiff's motion to set trial date, reconsider the
dismissal of common law claims, and amend the complaint is denied. It
hereby further is
ORDERED, that plaintiff's and WMATA's pending motions in limine are
denied as moot.
For the reasons stated in the accompanying Opinion, it hereby is
ORDERED, that judgment is entered in favor of defendant Washington
Metropolitan Area Transit Authority.