The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge
Plaintiffs, Rose Turner and her husband, James W. Williams, have filed the above-captioned case against Defendants, the Washington Metropolitan Area Transit Authority ("WMATA") and Charles Wallington. Turner alleges that she was discriminated against on the basis of her sex (female) and retaliated against for her participation in protected activity in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. In addition, she asserts claims for intentional infliction of emotional distress and intentional infliction of mental distress against both Defendants as well as claims for negligent training, supervision and retention against WMATA only. Her husband and co-Plaintiff, Williams, asserts a claim for loss of consortium against both Defendants.
Presently before the Court is Defendant WMATA's  Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), in which WMATA moves for dismissal of Plaintiffs' common law tort claims as well as their claims for punitive damages as alleged against WMATA.*fn1 Specifically, WMATA argues that it is immune from suit for its decisions relating to the training, supervision and retention of its employees, such that this Court lacks subject matter jurisdiction to entertain Plaintiffs' common law tort claims to the extent they are based on WMATA's personnel decisions. Accordingly, WMATA urges that the Court dismiss for lack of subject matter jurisdiction Turner's claims for negligent training/supervision, negligent retention, intentional infliction of emotional distress, and intentional infliction of mental distress, as WMATA asserts that each of these claims seeks to challenge its discretionary decisions regarding training, supervision and retention. In addition, WMATA contends that if the Court dismisses Turner's common law tort claims thereby leaving only her Title VII claims, it must also dismiss her husband's claim for loss of consortium as he cannot assert a derivative tort claim under Title VII. Finally, WMATA asserts that it is also immune from Plaintiffs' claims for punitive damages and therefore moves for dismissal of those claims for lack of subject matter jurisdiction.
Plaintiffs oppose WMATA's motion insofar as it seeks dismissal of their common law tort claims. They do not, however, oppose the motion with respect to their punitive damage claims, conceding that such claims must be dismissed. See Pls.' Opp'n, Docket No. , at 6 ("Plaintiff concedes to the striking of Plaintiff's claim for punitive damages."). Accordingly, as Plaintiffs concede WMATA's motion to the extent it moves for dismissal of their claims for punitive damages, the Court shall GRANT Defendant WMATA's  Motion to Dismiss as conceded with respect to Plaintiffs' punitive damages claims. This Memorandum Opinion therefore focuses solely on WMATA's arguments that it is immune from Plaintiffs' common law tort claims. The Court has conducted a searching review of WMATA's motion and the parties' responsive briefing, the relevant statutes, regulations, and case law as well as the record of this case as a whole. For the reasons that follow, the Court shall GRANT WMATA's Motion to Dismiss with respect to Turner's claims for negligent training, supervision and retention and shall therefore DISMISS Counts IV and V in the Complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1). The Court, however, shall DENY WITHOUT PREJUDICE WMATA's Motion to Dismiss with respect to Counts II and III of the Complaint. In addition, the Court shall GRANT WMATA's  Motion to Dismiss with respect to Count VII insofar as the claim is alleged against WMATA and is premised upon WMATA's training, supervision and retention decisions, but shall DENY WITHOUT PREJUDICE the motion insofar is it is premised on Turner's common law tort claims in Counts II and III, which remain extant. WMATA may file a renewed motion to dismiss as to Counts II, III and VII only pursuant to the schedule set forth in the accompanying Order.
WMATA is an agency created by an interstate compact as authorized by Congress through Pub. L. No. 89-774 and is an instrumentality of Maryland, Virginia, and the District of Columbia. See D.C. Code § 9-1107.01 et seq. As set forth in the Complaint, Plaintiff Rose Turner is a former employee of WMATA, and she is joined as Plaintiff in this action by her husband, James W. Williams. Complaint, Docket No. , ¶ 4. Turner began her employment with WMATA in September of 2003 as a Maintenance Custodian. Id. ¶ 8. She was subsequently promoted to Acting Custodial Maintenance Supervisor in March of 2007, in which position she worked until her alleged constructive discharge from the agency on October 16, 2007. Id. Upon her promotion to the position of Acting Custodial Maintenance Supervisor, Defendant Wallington, then-Assistant Superintendent for the Custodian Maintenance Department on the Redline, became Turner's immediate supervisor. Id. ¶ 10.
As set forth in the Complaint, Turner alleges that beginning in April 2007 and continuing until her separation from WMATA on October 16, 2007, Wallington made inappropriate sexual comments and inappropriate sexual advances towards her. Id. ¶ 11. Specifically, Turner alleges that in April or May of 2007, Wallington approached her while she was sitting at her work station and proceeded to grab her breast against her will and without her permission. Id. ¶ 13. Turner further alleges that at or around the same time period, Wallington asked her to "sit on his face." Id. ¶ 14. In addition, Turner alleges that at some unspecified time after April 2007, Wallington grabbed Plaintiff by the mouth and placed his mouth over hers against her will and without her permission. Id. ¶ 12.
Turner states that immediately after each incident she addressed Wallington about his inappropriate behavior; she made clear that he was not to touch her in that fashion and threatened to report his actions. Id. ¶ 16. Turner alleges, however, that Wallington's actions continued unabated. Id. ¶ 17. According to Turner, Wallington eventually began to verbally threaten her, including making threats to deny her promotions and to "blackball" her if she reported his conduct. Id. ¶ 18. He also allegedly began making unwanted telephone calls to Turner that consisted of "harassment and threats" and also made "unwanted comments" to her. Id. ¶¶ 19, 22. In addition, Turner states that on or about May 2007, Wallington refused her request to be off from work on the day of her birthday and instead required her to work more than 19 straight hours; Turner alleges that Wallington refused her request for leave because she refused his advances and objected to his conduct. Id. ¶ 21. Thereafter, Turner alleges that she continued to be subjected to "constant telephone calls and threats" from Wallington. Id. ¶ 24. According to Turner, this culminated in her constructive discharge from WMATA on October 16, 2007, as a result of the "stress associated with her hostile work environment, threats and sexual overtones." Id. ¶ 25.
Plaintiffs indicate that at some time in "late October 2007," Turner reported Wallington's actions to WMATA's Office of Civil Rights as well as to WMATA's Employee Assistance Program; no specific date is cited. Id. ¶ 23. Although no specific date is provided in the Complaint, even drawing all favorable inferences in Plaintiffs' favor, it appears from Plaintiffs' own allegations that Turner did not officially report Wallington's alleged conduct to WMATA until after she left her position on October 16, 2007; in addition, while Plaintiffs indicate that Turner complained to Wallington himself about his conduct and threatened to report him, there is no allegation that she in fact reported Wallington or that she advised anyone at WMATA about his conduct until she filed an official complaint in "late October 2007" - i.e., after she asserts that she was constructively discharged.
Separate from the specific allegations that Wallington engaged in harassing and discriminatory behavior towards Turner during the period from April to October of 2007, Plaintiffs allege generally that Wallington "had done prior acts of sexual assault and harassment before" and that "he was reported  to WMATA" for such conduct. Id. ¶ 14. No further details regarding these alleged prior incidents are provided. See generally Compl. Plaintiffs suggest, however, that these prior incidents occurred before Wallington was promoted, such that WMATA was aware of Wallington's alleged "past history of sexual harassment" at the time it promoted Wallington to the position of Assistant Superintendent for the Custodian Maintenance Department. See id. ¶ 26. Nonetheless, the Court notes that the Complaint is silent as to when Wallington was promoted, although it is self-evident that he was promoted to the Assistant Superintendent position at some point prior to Turner's promotion in March of 2007. See generally Compl. The Complaint is similarly silent as to when Wallington allegedly engaged in unspecified "prior acts of sexual assault and harassment" or as to when and how WMATA would have been notified of such conduct. See generally Compl.
Plaintiffs filed the above-captioned action on May 4, 2009. See Compl. Plaintiffs' Complaint, although filed by counsel, is by no means a model of artful pleading. As indicated above, the factual allegations are generally vague and provide little detail. In addition, the underlying basis for Plaintiffs' legal claims is not always transparent, as is discussed in more detail below. Nonetheless, as the Court understands Plaintiffs' allegations, they assert the following seven causes of action:
* Count I: Alleges discrimination on the basis of sex (female) in violation of Title VII and is asserted by Turner against both Defendants. Id. ¶¶ 28-47.
* Count II: Alleges intentional infliction of emotional distress and is asserted by Turner against both ...