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Tapp v. Washington Metropolitan Area Transit Authority

United States District Court, District of Columbia

September 30, 2016

DONALD TAPP, Plaintiff,


          KETANJI BROWN JACKSON United States District Judge.

         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 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 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 l.)[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 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" 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 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 Amendments]." (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.) 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 nonpublic 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 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.


         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 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 ...

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