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Tapp v. Washington Metropolitan Area Transit Authority

United States District Court, District of Columbia

December 20, 2017

DONALD TAPP, Plaintiff,


          Beryl A. Howell Chief Judge

         The plaintiff, Donald Tapp, brought this wrongful termination lawsuit against the defendant, Washington Metropolitan Area Transit Authority (“WMATA”), asserting five claims, only one of which, alleging gender discrimination, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17, see Am. Compl., Count III ¶¶ 39-51, ECF No. 24, survived the defendant's prior motion for judgment on the pleadings, under Federal Rule of Civil Procedure 12(c), Tapp v. Wash. Metro. Area Transit Auth. (Tapp I), 2016 U.S. Dist. LEXIS 135747, at *3 (D.D.C. Sept. 30, 2016) (KBJ) (granting defendant's Renewed Motion for Judgment on the Pleadings as to Counts I, II, IV and V, but denying dismissal of Count III).[1]Pending before the Court is the defendant's renewed motion for summary judgment on Count III on grounds of the plaintiff's alleged failure to exhaust his administrative remedies, as required by 42 U.S.C. § 2000e-5. Def.'s Mot. Summ. J. (“Def.'s MSJ”), ECF No. 33; Def.'s Mem. Supp. Def.'s MSJ (“Def.'s Mem.”) at 1, ECF No. 33. For the reasons below, that motion is granted.

         I. BACKGROUND

         The relevant factual and procedural history is summarized only to the extent necessary to evaluate the pending motion for summary judgment, as the facts have been recited in ample detail in the prior opinion. See Tapp I at *3-13.

         A. Factual Background

         The plaintiff was terminated, on February 3, 2015, from his position as Superintendent of the Montgomery Division of the WMATA Department of Bus Services, after twenty-five years of working for the defendant, for multiple reasons cited in a termination letter given to the plaintiff. See Am. Compl. ¶¶ 7-8; id., Ex. 1 (Mem., dated Feb. 3, 2015, from Ted Harris, Service Director, to plaintiff regarding “Termination of Employment”) (“Termination Letter”), at 1-2, ECF No. 24-2. These reasons included that the plaintiff had: (1) terminated a subordinate's employment, without notifying superiors or following the requisite process set out in a collective bargaining agreement, Termination Letter at 1; (2) an overall performance in 2014 that “has not been satisfactory, ” marked by the plaintiff's failure to meet time performance and absenteeism targets, ineffectively holding his division accountable “for the timely completion of routine assignments to include absenteeism tracking, payroll recordkeeping, and discipline administration, ” as well as “exhibit[ing] a pattern of inappropriate and unprofessional conduct in your interactions with direct and indirect staff, as well as other WMATA Department staff, ” id. at 2; and, finally, (3) admitted, in response to an inquiry about “missing” Montgomery Division petty cash, that he had “the petty cash in [his] possession, ” which violated WMATA Comptroller Procedures by failing to maintain the petty cash “in a secure manner during operating hours and locked in a safe during non-operating hours, ” id.

         Regarding the last reason given for his termination, the plaintiff submitted an affidavit as an attachment to his Amended Complaint, admitting that he did not store the petty cash in the Division's safe because “no one had access to the combination by which it could be unlocked, as it had not been used in many years, ” leaving him “to secure the monies in [his] WMATA company vehicle.” Am. Compl., Attach. 1 (Plaintiff's Affidavit, dated Sept. 22, 2015) (“Pl.'s Aff.”) ¶ 1, ECF No. 24-1. He further states that his “predecessor superintendent did not have a safe in which to secure petty cash, ” id. ¶ 2, and cites an incident in October 2013 when his predecessor, who was a woman, “borrowed $200.00 from [], another superintendent, and handed it to me, ” id. ¶ 1. The remaining claim at issue in this case, Count III, challenges only one of the three bases for termination-the plaintiff's failure to maintain securely the Montgomery Division's petty cash-alleging that his termination was due to gender discrimination, since his female predecessor also did not utilize a safe to secure the petty cash. Am. Compl. ¶¶ 43-44, 50.

         After his termination, the plaintiff visited an Equal Employment Opportunity Commission (“EEOC”) office on M Street, N.E., on April 9, 2015, in order to file a discrimination charge. Def.'s Mot., Ex. 1, Depo. of Donald Tapp (“Pl.'s Depo.”), Jan. 27, 2017, at 11:19-22, 12:20-22, ECF No. 33-2; Def.'s Stm. Material Facts Not in Dispute (“Def.'s SUMF”) ¶¶ 1-2, ECF No. 33-1.[2] Although the plaintiff answered “Yes, I did, ” in response to the question whether he “file[d] a charge with the EEOC prior to [] filing suit in this case, ” Pl.'s Depo. at 11:15-18, he clarified how he filed the charge during the course of the deposition. Specifically, he did not have a written statement already prepared when he visited the EEOC office, Pl.'s Depo. at 13:16-14:5; Def.'s SUMF ¶ 5, and was merely “interviewed by one of the I believe hearing officers there on site, ” Pl.'s Depo. at 12:11-14; id. at 27:16-20 (plaintiff testifying that hearing officer with whom he met was “female”). According to the plaintiff, he described during his EEOC interview the details of his allegations related to his termination, including that his predecessor, whose name he did not mention, had the same issue with storing petty cash and did not face discipline, whereas the plaintiff did. Id. at 15:17-20, 16:8-16 (testifying that he “did mention the details”). The EEOC officer told him that “she couldn't accept [his claim] because she didn't find any reason.” Id. at 12:20-22; see also Id. at 16:4-7 (responding to question about “reasons for denying your or not accepting your charge, ” plaintiff states “[o]ther than she couldn't find anything”). The plaintiff did not return to the EEOC office or otherwise attempt to file the charge, id. at 13:5-10, and made no further inquiries with the EEOC about an appeal in order to file the charge, id. at 13:11-15. The plaintiff does not indicate that he ever received anything in writing from the EEOC and stated, in response to question whether he got “a copy of the charge, ” that “[n]o, I don't have a copy of it.” Id. at 12:1-4.

         B. Procedural Background

         After removing this case from D.C. Superior Court, the defendant moved, under Federal Rule of Civil Procedure 12(c), for judgment on the pleadings, Def.'s Mot. J. Pleadings, ECF No. 12, which motion was denied as moot upon the plaintiff's filing of an amended complaint, Minute Order, Dec. 10, 2015. The defendant's renewed motion for judgment on the pleadings was granted with respect to four of the five counts in the amended complaint. See Tapp I at *3. Specifically, the Court held: (1) the Fifth Amendment claim, in Count I, failed as a matter of law since the plaintiff was an at-will employee and, therefore, his “employment did not constitute a property right that triggers the procedural protections of the [Fifth Amendment's] Due Process Clause, ” id. at *17-21; (2) the claim, under 42 U.S.C. § 1983, in Count II, failed because the defendant is not a “person” within the scope of this law, id. at *21-23; and (3) the plaintiff's claims “for false light/privacy invasion, ” in Count IV, and intentional infliction of emotional distress, in Count V, were barred by the defendant's sovereign immunity, id. at *23-32.

         As noted, the gender discrimination claim in Count III, which was raised for the first time in the amended complaint, survived the defendant's challenge that the plaintiff had failed to exhaust his administrative remedies at the EEOC, as required by 42 U.S.C. § 2000e-5, since the defendant failed to provide “any proof” supporting this affirmative defense. Id. at *32, *34. The parties were permitted a brief period for discovery solely on the exhaustion question, id. at *35, during which period the plaintiff was deposed in January 2017, Def.'s Mem. at 2.


         Federal Rule of Civil Procedure 56 provides that summary judgment shall be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Summary judgment is properly granted against a party who, “after adequate time for discovery and upon motion, . . . fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the burden to demonstrate the “absence of a genuine issue of material fact” in dispute, id. at 323, while the nonmoving party must present specific facts supported by materials in the record that would be admissible at trial and that could enable a reasonable jury to find in its favor, see Anderson v. Liberty Lobby, Inc. (“Liberty Lobby”), 477 U.S. 242, 248 (1986); Allen v. Johnson, 795 F.3d 34, 38 (D.C. Cir. 2015) (noting that, on summary judgment, appropriate inquiry is “whether, on the evidence so viewed, ‘a reasonable jury could return a verdict for the nonmoving party'” (quoting Liberty Lobby, 477 U.S. at 248)); see also Greer v. Paulson, 505 F.3d 1306, 1315 (D.C. Cir. 2007) (“[S]heer hearsay . . . counts for nothing on summary judgment.” (internal quotation marks omitted)); Fed.R.Civ.P. 56(c), (e)(2)-(3). In ruling on a motion for summary judgment, all justifiable inferences must be drawn in favor of the nonmoving party, whose evidence must be accepted as true. Young v. UPS, 135 S.Ct. 1338, 1347 (2015) (noting that “at the summary judgment stage, ” when “there is a genuine dispute as to these facts, we view this evidence in the light most favorable to [] the nonmoving party”); see also Scott v. Harris, 550 U.S. 372, 380 (2007); Liberty Lobby, 477 U.S. at 255; Grosdidier v. Broad. Bd. of Governors, 709 F.3d 19, 23-24 (D.C. Cir. 2013). While the court is only required to consider the materials explicitly cited by the parties, “other materials in the record” may be also be considered. Fed.R.Civ.P. 56(c)(3).

         III. ...

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