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 ...