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Bey v. Washington Metropolitan Area Transit Authority

United States District Court, District of Columbia

October 11, 2018

COREY LEROY BEY, [1]Plaintiff,
v.
WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, et al., Defendants.

          MEMORANDUM OPINION

          REGGIE B. WALTON UNITED STATES DISTRICT JUDGE

         The plaintiff, Corey LeRoy Bey, proceeding pro se, filed this civil suit against the defendants, Washington Metropolitan Area Transit Authority (“WMATA”), Amalgamated Transit Union Local 689 (the “Union”), and various individuals employed by both WMATA and the Union. See Second Amended Complaint (“Bey II Compl.”) ¶¶ 13-23, ECF No. 81. The plaintiff asserts violations of the Rehabilitation Act of 1973, 29 U.S.C. § 701 (2012); the American with Disabilities Act, 42 U.S.C. § 12102(2)(B) (2012); the Civil Rights Act of 1991, 42 U.S.C. §§ 1977, 1988 (2012); the Labor Management Relations Act, 29 U.S.C. § 185 (2012); and common law claims for defamation, intentional infliction of emotional distress, and civil conspiracy under District of Columbia law. See Bey II Compl. ¶¶ 122-89. Currently pending before the Court are (1) Defendant ATU Local 689['s] Motion for Summary Judgment (“Union's Summ. J. Mot.”), ECF No. 130; WMATA Defendants' Motion for Summary Judgment (“WMATA's Summ. J. Mot.”), ECF No. 131; (3) Defendant Washington Metropolitan Area Transit Authority's Supplemental Motion for Summary Judgment, ECF No. 154 (“WMATA's Supp. Summ. J. Mot.”); (4) Defendant ATU Local 689['s] Motion to Strike Plaintiff's Objections (“Union's Mot. to Strike”), ECF No. 137; and (5) the Plaintiff's Motion to Strike and Opposition to Defendant Local 689's Motion to Strike (“Pl.'s Mot. to Strike”), ECF No. 138. Upon careful consideration of the parties' submissions, [2] the Court concludes that it must deny the Union's and the plaintiff's cross-motions to strike, grant the Union's motion for summary judgment, grant in part and deny in part WMATA's motion for summary judgment, and grant in part and deny in part WMATA's supplemental motion for summary judgment.

         I. BACKGROUND

         Although a detailed procedural history, see McFadden v. Wash. Metro. Area Transit Auth., 168 F.Supp.3d 100, 103-04 (D.D.C. 2016) (Walton, J.); McFadden v. Wash. Metro. Area Transit Auth., 949 F.Supp.2d 214, 218-19, 225 (D.D.C. 2013) (Walton, J.), and much of the factual background, see McFadden v. Wash. Metro. Area Transit Auth., No. 14-1115 (RBW), 2015 WL 13659261, at *2-3 (D.D.C. Jan. 22, 2015) (Walton, J.), of this case have previously been set forth by the Court, the Court finds it necessary to briefly reiterate the current procedural posture of this case pertinent to the pending motions, and to discuss the plaintiff's work involving safety-related incidents and his use of the pharmaceutical, Adderall.

         Considering the facts in the light most favorable to the plaintiff as the non-moving party in regards to the summary judgment motions, the record consists of the following regarding the plaintiff's involvement in safety-related incidents and his use of Adderall in his capacity as a WMATA bus mechanic. After being diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) in June 2009, Pl.'s Decl. ¶ 11, the plaintiff was prescribed Adderall to manage his symptoms, id. ¶ 13, and he reported his Adderall usage to WMATA on June 26, 2009, see WMATA's Supp. Summ. J. Mot., Exhibit (“Ex.”) F (Prescription Reporting Forms). He again reported his Adderall usage to WMATA on May 21, 2010, indicating that he had started taking Adderall “last year” and was taking it on an “ongoing” basis. See id., Ex. F (Prescription Reporting Forms). After being referred to WMATA's medical department, on June 10, 2010, WMATA “informed [the plaintiff] that use of Adderall was against [United States Department of Transportation (“DOT”)] policy for [commercial driver's license] holders. [The plaintiff] was instructed that [he] must have [his] prescription switched to a non-[S]chedule II medication prior to [him] being allowed to return to duty.” Pl.'s Statement ¶ 16. The plaintiff then began taking Strattera, a non-Schedule II medication. See id. ¶ 17. Thereafter, the plaintiff submitted a grievance to WMATA, challenging WMATA's directive that he stop taking Adderall, on the basis that “the DOT and WMATA did not have a regulation prohibiting the use of Adderall.” Id. ¶ 19. Then, after being involved in an accident in September 2010, the plaintiff filed an accident appeal form stating that the accident “was the result of being removed from [Adderall].” Id. ¶ 21.

         The plaintiff began taking Adderall again in September 2010, and submitted prescription reporting forms with WMATA on September 9, 2010; October 9, 2010; October 10, 2010; December 10, 2010; and January 18, 2011, advising WMATA that he was taking the medication. See WMATA's Supp. Summ. J. Mot., Ex. F (Prescription Reporting Forms). The Accident Appeal Board denied the plaintiff's accident appeal on January 18, 2011, and the following day, the plaintiff represents that defendant Lisa Cooper-Lucas, the head of WMATA's medical branch, “informed [him] that [he] would not be allowed to continue taking Adderall based on a DOT prohibition, ” and that he “was removed from duty pending having [his] prescription changed, evaluated[, ] and approved for use by [ ] Cooper-Lucas.” Pl.'s Statement ¶ 31. The plaintiff informed Cooper-Lucas that he “would take Adderall for the last time [on] [ ] January 23, 2011, ” id. ¶ 32, and Cooper-Lucas informed the plaintiff that “Adderall would be undetectable in his system [twenty-four] hours after [he] last took it” and that “she would clear . . . [his] return to duty on . . . January 24[, 2011], ” id. ¶ 33. According to the plaintiff, Cooper-Lucas “threatened [him] with a [thirty-]day suspension if [he] were to test positive for Adderall at any point in the future.” Id.

         Following his return to work, the plaintiff suffered an on-the-job injury on January 25, 2011, and after receiving medical treatment, was “transported to WMATA headquarters for a post[-]incident drug and alcohol urinalysis, ” and tested positive for the use of Adderall. Id. ¶¶ 37-38. The following morning, Cooper-Lucas suspended the plaintiff for thirty days, and on February 3, 2011, the plaintiff was released from pay status, required to enroll in the WMATA's Employee Assistance Program, and threatened with “termination for violating the prescription drug section of WMATA's [s]ubstance abuse [p]olicy.” Id. ¶ 49. The plaintiff contends that he was “removed from the Category II [Employee Assistance] [P]rogram for ‘intent' to use [Adderall], ” after he requested that WMATA “put an answer in writing stating whether or not [he] would be allowed to take [his] doctor prescribed medication, ” i.e., Adderall. Pl.'s Decl. ¶ 25. Thereafter, on February 28, 2011, the plaintiff represents that he was removed from the Employee Assistance Program on the ground that he “ha[d] been non-compliant with [his] Category II Contract stipulation.” Pl.'s Opp'n, Ex. 60 (Employee Assistance Program Removal Letter).

         As a result of the plaintiff's removal from the Employee Assistance Program, id., Ex. 60 (Employee Assistance Program Removal Letter), WMATA convened a Joint Labor Management Committee (the “Committee”) meeting on March 15, 2011, and the Committee voted to terminate the plaintiff, see WMATA's Summ. J. Mot, Ex. B (Committee Transcript) at 72:19- 22. The plaintiff challenged his termination, and the Union reached a settlement with WMATA on the plaintiff's behalf on September 29, 2011, resulting in the plaintiff being reinstated to his position as a bus mechanic, see Pl.'s Opp'n, Ex. 233 (Sept. 29, 2011 Settlement Agreement), and the plaintiff returned to work on November 6, 2011, see WMATA's Supp. Summ. J. Mot., Ex. C (Deposition of Corey L. McFadden (June 13, 2014) (“McFadden June 13, 2014 Dep.”)) at 215:13-21.

         Although the settlement agreement did not address the plaintiff's Adderall use, see Pl.'s Opp'n, Ex. 233 (Sept. 29, 2011 Settlement Agreement), WMATA unofficially granted the plaintiff's request to use Adderall[3] by allowing him to report his Adderall usage to WMATA upon his return to duty, see WMATA's Supp. Summ. J. Mot., Ex. F (Prescription Reporting Forms) (showing that the plaintiff reported his Adderall usage to WMATA on October 17, 2011; November 11, 2011; November 23, 2011; December 22, 2011; March 24, 2012; and April 24, 2012).

         On April 3, 2012, while taking Adderall, the plaintiff left a bus running unattended for an extended period of time and he testified during his deposition that he “forgot the bus was back [where it was discovered running].” See id., Ex. C (McFadden June 13, 2014 Dep.) at 231:14- 15; see also id., Ex. C (McFadden June 13, 2014 Dep.) at 230:20-231:14.[4] On February 1, 2012, the plaintiff filed a request for accommodations by WMATA, seeking permission “to be waived from reporting” his Adderall usage to WMATA, and for “greater time to complete [his job-related] task[s].” Pl.'s Opp'n, Ex. 137 (Accommodation Request). WMATA denied the plaintiff's accommodation requests, advising him that “the ADA Panel has found [him] to be a direct threat in [his] current position, defined as a significant risk or substantial harm to [his] health and/or safety or others that cannot be eliminated or reduced by reasonable accommodation.” Id., Ex. 172 (Accommodation Request Denial) at 2. WMATA noted that its determination that the plaintiff posed a direct threat was “based on documented history of preventable incidents and safety infractions, ” which included:

(1) Physically leaving a bus running and unattended for several hours parked in an alley in a residential neighborhood;
(2) Repeated recklessness and excessive speeding while operating a forklift in the garage environment. ([The plaintiff] ha[s] been observed and estimated to exceed 10 MPH while driving the forklift to the point it “bounces” off the ground); and
(3) Three instances of leaving the fuel nozzle locked on the bus and driving away while the nozzle is still attached.

Id., Ex. 172 (Accommodation Request Denial) at 2. In making its direct threat determination, the ADA Panel considered testimony regarding these alleged incidents. Id., Ex. 178 (Accommodation Request Appeal Denial) at 2. The plaintiff was medically disqualified as a bus mechanic that same day and placed into the “Section 124 job placement program” for medically disqualified employees. Id., Ex. 168 (Medical Disqualification Letter). The plaintiff then obtained a non-safety sensitive station manager position with WMATA in March 2013. WMATA's Summ. J. Mot., Ex. A (Oct. 29, 2013 Arbitration Award) at 7-8.

         The plaintiff initially brought Civil Action No. 12-940 (Bey I) against WMATA and three WMATA employees, asserting claims for disability discrimination, retaliation, defamation, and civil conspiracy. See Bey I Compl. ¶¶ 175-243. The plaintiff later filed his second civil suit, Civil Action No. 14-1115 (Bey II), against defendants WMATA, the same three WMATA employees named in Bey I, four additional WMATA employees, two other individuals, and the Union, asserting violations of the Rehabilitation Act; the Americans with Disabilities Act; the Labor Management Relations Act; and common law claims for defamation, intentional infliction of emotional distress, and civil conspiracy. See Bey II Compl. ¶¶ 13-23. After WMATA moved for summary judgment in Bey I, the Court entered judgment for WMATA on some of the plaintiff's claims, but allowed the plaintiff's disability discrimination and retaliation claims against WMATA to proceed. See Order (Sept. 2, 2016), Bey I, ECF No. 95. The Court later consolidated Bey I and Bey II. See Order at 1 (Dec. 20, 2016), ECF No. 117.

         In the now consolidated case, WMATA has filed a motion for summary judgment on the disability discrimination, retaliation, and hostile work environment claims asserted against WMATA and the defamation and civil conspiracy against the individual WMATA defendants in the Bey II Complaint, see WMATA's Summ. J. Mot. at 2, and subsequently filed a supplemental motion for summary judgment on the disability discrimination and retaliation claims asserted against WMATA in the Bey I and Bey II Complaints, see WMATA's Supp. Summ. J. Mot. at 1. The Union has filed a motion for summary judgment on the breach of duty of fair representation, civil conspiracy, and retaliation claims against the Union, see Union's Summ. J. Mem. at 8-24, as well as a motion to strike the plaintiff's objections filed in support of his opposition to the WMATA's and the Union's motions for summary judgment, see Union's Mot. to Strike at 1. The plaintiff then filed a cross-motion to strike the deposition transcripts submitted as exhibits with the Union's motion for summary judgment. See Pl.'s Mot. to Strike Mem. at 6. These are the motions that are the subject of this Memorandum Opinion.

         II. STANDARDS OF REVIEW

         A. Motion to Strike

         A court, either on its own volition or at the request of a moving party, may strike from a pleading any “insufficient defense or any redundant, immaterial, impertinent or scandalous matter.” Fed.R.Civ.P. 12(f). A motion to strike is a “‘drastic remed[y] that courts disfavor, '” and trial judges have discretion to either grant or deny such motion. Riddick v. Holland, 134 F.Supp.3d 281, 285 (D.D.C. 2015) (quoting United States ex rel. Landis v. Tailwind Sports Corp., 308 F.R.D. 1, 4 (D.D.C. 2015)). Rule 12(f) itself does not require the striking of prejudicial matters, and although courts disfavor motions to strike, courts have granted such motions upon a showing that parts of a pleading were prejudicial or scandalous. Therefore, “absent a ‘strong reason for so doing,' courts will generally ‘not tamper with pleadings.'” Nwachukwu v. Rooney, 362 F.Supp.2d 183, 190 (D.D.C. 2005) (quoting Lipsky v. Commonwealth United Corp., 551 F.2d 887, 893 (2d Cir. 1976)).

         B. Motion for Summary Judgment

         A court will grant a motion for summary judgment “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). “A fact is material if it ‘might affect the outcome of the suit under the governing law,' and a dispute about a material fact is genuine ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'” Steele v. Schafer, 535 F.3d 689, 692 (D.C. Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

         In considering a motion for summary judgment, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255. “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment . . . .” Id. The movant has the burden of demonstrating the absence of a genuine issue of material fact and that the non-moving party “fail[ed] 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).

         In responding to a summary judgment motion, the non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (citing cases). Accordingly, the non-moving party must not rely on “mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there [are] genuine issue[s] for trial.” Anderson, 477 U.S. at 248 (first alteration in original) (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288 (1968)). Thus, “[t]he mere existence of a scintilla of evidence in support of the [non-moving party's] position [is] insufficient” to withstand a motion for summary judgment, as “there must be [some] evidence on which the jury could reasonably find for the [non-movant].” Id. at 252. Finally, courts must liberally construe a pro se plaintiff's summary judgment submissions, affording him “the benefit of the doubt, ” and “ignor[ing] some technical shortcomings of [his] filings.” Sindram v. Kelly, Civil Action No. 06-1952 (RBW), 2008 WL 3523161, at *3 (D.D.C. Aug. 13, 2008) (Walton, J.) (quoting Voinche v. FBI, 412 F.Supp.2d 60, 70 (D.D.C. 2006)); see also Richardson v. United States, 193 F.3d 545, 548 (D.C. Cir. 1999).

         III. ANALYSIS

         A. The Union's and the Plaintiff's Cross-Motions to Strike

         The Union requests that the Court strike the plaintiff's objections filed in support of his opposition to WMATA's and the Union's motions for summary judgment. See Union's Mot. to Strike at 1. In his objections, the plaintiff claims that the transcript of his March 4, 2017 deposition and his interrogatory responses, both which the Union submitted in support of its motion for summary judgment, “appear to have been altered.” Pl.'s Objections at 1.[5]Additionally, the plaintiff objects to the court reporter's affidavit accompanying the plaintiff's deposition transcript because “it is not notarized or signed in front of her attorney/officer of the Court.” Id.

         The Union argues that the plaintiff's objections should be stricken because his claims are “inherently false, ” “libelous, ” and “highly prejudicial to [the] [d]efendants.” Union's Mot. to Strike Mem. at 3. Accompanying its motion to strike, the Union submitted the full-page version of the plaintiff's deposition transcript, [6] which included the court reporter's oath, signature, and notary number, noting that “[a]ll of the testimony is identical in both.” See Union's Mot. to Strike at 6; id., Ex. A (Deposition of Corey L. McFadden (Mar. 4, 2017) (“McFadden Mar. 4, 2017 Dep.”)). The plaintiff concedes that due to time constraints, he “avoid[ed] a complete reading of the transcripts” and did not perform a line-by-line comparison of the mini-script and full-page versions of the transcript. Pl.'s Mot. to Strike Mem. at 5. Instead, he merely “look[ed] for different fonts and different sizes, ” id. at 6, and therefore “cannot say whether the words are identical because [he] did not read either transcript, ” Pl.'s Mot. to Strike Reply at 4.

         In his cross-motion to strike, the plaintiff requests that the Court strike both versions of the plaintiff's deposition transcript from the record because “[t]o consider the transcripts would be highly prejudicial against [him]” and improper. Pl.'s Mot. to Strike Mem. at 6. The plaintiff first contends that his “opposition and attached filings are not ‘pleadings' as described in Rule 12” and thus cannot be stricken under Rule 12. See id. at 3. The plaintiff next contends that the Union's attorney has not made a sufficient showing of prejudice and harm to his reputation because the plaintiff merely alleged that the transcript “appeared” to have been altered and did not identify “the potential wrongdoer.” Id. at 5. The Union responds that a motion to strike is proper because it was “the only possible avenue . . . to strike these libelous contentions, ” and that its attorney sufficiently showed prejudice because “by filing documents on behalf of his client, he has taken on the responsibility to uphold the laws and ethical rules which govern the [C]ourt, ” and that the objections “are baseless allegations [that] could be potentially harmful to the reputation of counsel.” Union's Opp'n to Pl.'s Mot. to Strike at 3-4.

         The Court first concludes that the Union has not met its burden to warrant granting its motion to strike. Rule 12(f) authorizes only the striking of pleadings. See Fed.R.Civ.P. 12(f) (stating that “[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter” (emphasis added)); see also Fed.R.Civ.P. 7(a) (defining pleadings as “(1) a complaint; (2) an answer to a complaint; (3) an answer to a counterclaim designated as a counterclaim; (4) an answer to a crossclaim; (5) a third-party complaint; (6) an answer to a third-party complaint; and (7) if the court orders one, a reply to an answer”). The plaintiff's submission that the Union seeks to strike does not fall under Rule 7(a)'s definition of a “pleading, ” because it was filed in support of the plaintiff's opposition to WMATA's and the Union's motions for summary judgment, which is not the type of document identified in the Federal Rules of Civil Procedure. See Fed.R.Civ.P. 7(a), 12(f). Therefore, for that reason alone, the Court must deny the Union's motion to strike.[7] See id.

         The Court also concludes that the plaintiff has not met his burden on his cross-motion to strike. Like the plaintiff's objections filed in support of his opposition to WMATA's and the Union's motions for summary judgment, the deposition transcripts and interrogatory responses submitted in conjunction with the Union's motion for summary judgment are not “pleadings” that can be stricken under Rule 12, and therefore the Court must also deny the plaintiff's cross-motion to strike.[8]

         Accordingly, the Court must deny both the Union's and the plaintiff's cross-motions to strike.

         B. WMATA's Motions ...


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