United States District Court, District of Columbia
KETANJI BROWN JACKSON United States District Judge.
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).
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.)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.
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))).
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.) 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.)
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.)
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
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
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"
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.)
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. 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).
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
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). "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 ...