United States District Court, District of Columbia
N. MCFADDEN, U.S.D.J.
Robyn Slack lost her job at Washington Metropolitan Area
Transit Authority (“WMATA”) after refusing to act
as the sole point of contact for a procurement contract,
which she claimed would have violated the law. She sued WMATA
for unlawful retaliation and her supervisor, Judy Mewborn,
for defamation. The Court dismissed Ms. Slack's
retaliation claims under the False Claims Act and the
District of Columbia Protection Act because sovereign
immunity barred those claims. See Slack v. Wash. Metro.
Area Transit Auth., 325 F.Supp.3d 146, 150-51 (D.D.C.
2018) (“Slack I”). WMATA now moves for
summary judgment on the remaining claims, and Ms. Slack
opposes. WMATA's motion will be denied as to Ms.
Slack's retaliation claim under the American Recovery and
Reinvestment Act (“ARRA”), but sovereign immunity
bars her retaliation claim under the National Defense
Authorization Act (“NDAA”). Because Ms. Mewborn
enjoys immunity from Ms. Slack's defamation claim, Ms.
Mewborn's motion for summary judgment will be granted as
to that claim.
Slack was a Capital Analyst in WMATA's Office of Systems
Maintenance. Slack Dep. at 58, ECF No. 51-2. In this
position, Ms. Slack provided oversight management for budgets
and projects in WMATA's Capital Improvement Program
(“CIP”). See “Job Description for
Capital Program Analyst, ” ECF No. 51-7. Ms. Mewborn
was her direct supervisor. Slack Dep. at 60.
Mewborn oversaw “CIP 0027, ” a project aimed at
improving the safety and reliability of interlocking track
structures and replacement of switch machines. Olumid Dep. at
8, ECF No. 52-4. Ms. Mewborn proposed that Ms. Slack would be
the contact person for “all orders being requested that
are related to CIP 0027.” July 1, 2014 Email, ECF No.
51-8. Ms. Slack claims that she told Ms. Mewborn in a meeting
that such a plan would violate WMATA's legal and
regulatory obligations to maintain “internal
controls.” Slack Dep. at 81-83.
months later, Ms. Mewborn issued Ms. Slack a written warning
about her job performance. See “Poor
Performance and Conduct - Written Warning, ” ECF No.
51-9. In her warning, Ms. Mewborn criticized Ms. Slack for,
among other things, using confidential information about her
co-worker's salary to request her own promotion.
Id. After Ms. Slack objected to the written warning,
a WMATA employee relations officer investigated and concluded
that it was unclear whether Ms. Slack had used confidential
information to learn her co-worker's salary.
Jones-Ogunsuy Dep. at 28-29, ECF No. 51-4. So Ms. Mewborn
issued Ms. Slack a revised memorandum without reference to
Ms. Slack's alleged use of confidential information.
“Unsatisfactory Performance, ” ECF No. 51-11.
This memorandum included several other concerns: (1)
inability to meet department expectations; (2) failure to
meet deadlines and unable to work in a fast-paced, high
stress environment; (3) failure to follow up and provide
requested information; and (4) failure to follow clear
instructions. Id. Six weeks later, WMATA fired Ms.
Slack. “Termination of Employment” Memorandum,
ECF No. 51-12.
Slack sued WMATA for unlawful retaliation and Ms. Mewborn for
defamation. Slack I, 325 F.Supp.3d at 150. WMATA
moved to dismiss Ms. Slack's retaliation claims under the
False Claims Act and the District of Columbia Whistleblower
Protection Act, and the Court dismissed these claims based on
WMATA's sovereign immunity. Id. at 151. WMATA
and Ms. Mewborn (“Defendants”) have now moved for
summary judgment on the remaining claims, and Ms. Slack
prevail on a motion for summary judgment, a movant must show
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); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). A factual
dispute is material if it could alter the outcome of the suit
under the substantive governing law. Id. at 248. 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.” Id.
“[A] party seeking summary judgment always bears the
initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
which it believes demonstrate the absence of a genuine issue
of material fact.” Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). Once the movant makes this showing,
the non-moving party bears the burden of setting forth
“specific facts showing that there is a genuine issue
for trial.” Anderson, 477 U.S. at 250.
Court explained in Slack I, the Eleventh Amendment
generally prohibits a federal court from exercising
jurisdiction over claims against a state. 325 F.Supp.3d at
151; U.S. Const. amend. XI (“The Judicial power of the
United States shall not be construed to extend to any suit in
law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or
Subjects of any Foreign State.”). As Ms. Slack appears
to concede, when Virginia, Maryland, and the District of
Columbia created WMATA, they conferred their sovereign
immunity upon it. Morris v. Wash. Metro. Area Transit
Auth., 781 F.2d 218, 219-20 (D.C. Cir. 1986).
question whether Eleventh Amendment immunity is a matter of
subject matter jurisdiction is an open one.” U.S.
ex rel. Long v. SCS Bus. & Tech. Inst., Inc., 173
F.3d 890, 892 (D.C. Cir. 1999). On the one hand, courts do
not have to consider sovereign immunity sua sponte:
“[u]nless the State raises the matter, a court can
ignore it.” Wis. Dep't of Corr. v.
Schacht, 524 U.S. 381, 389 (1998). But parties also can
raise sovereign immunity for the first time on appeal.
See SCS Bus. & Tech. Inst., 173 F.3d at 892. As
the D.C. Circuit has explained, “[t]he Eleventh
Amendment bar on suits against states in federal court is not
a garden variety jurisdictional issue.” Id.
on the right track, the Court will undertake its own
jurisdictional analysis- assisted but not limited by the
parties' arguments-and ask whether sovereign immunity bars
each of Ms. Slack's claims. As the Court has explained, there
are two primary exceptions to sovereign immunity: (1)
Congress may limit sovereign immunity if it unequivocally
expresses its intent to abrogate that immunity; or (2) an
entity may voluntarily waive its immunity by making a clear
declaration that it will submit to a federal court's
jurisdiction. See Slack I, 325 F.Supp.3d at
WMATA is Not Entitled to Summary Judgment on Ms. Slack's
Retaliation Claim under the ARRA.
American Recovery and Reinvestment Act of 2009,
“popularly known as the Stimulus Act, was passed as an
emergency legislation to rescue the American economy from
deep recession.” Dorsey v. Jacobson Holman
PLLC, 707 F.Supp.2d 21, 23 (D.D.C. 2010). To safeguard
federal funds and encourage transparency, the ARRA includes
whistleblower protections for employees of non-Federal
employers receiving funds under the ARRA. See ARRA,
Pub. L. No. 111-5, § 1553 (2009).
Slack concedes, Congress did not abrogate WMATA's
sovereign immunity under the ARRA. See Opp. to
Defs.' Mot. for Summ. Jdgt. (“Opp.”) at
13-18, ECF No. 52 (only arguing that WMATA waived its
immunity as to her ARRA claim). The textual provisions must
“demonstrate with unmistakable clarity that Congress
intended to abrogate the States' immunity from
suit.” Dellmuth v. Muth, 491 U.S. 223, 231
(1989). The ARRA does not do so. For instance, the language
of the ARRA does not even mention the Eleventh Amendment or
state sovereign immunity. See Id. And the Supreme
Court has made clear that “[a] general authorization
for suit in federal court is not the kind of unequivocal
statutory language sufficient to abrogate the Eleventh
Slack insists that WMATA has waived its sovereign immunity.
For the Court to find waiver, WMATA must make a “clear
declaration” of its intent to submit to federal court
jurisdiction. Barbour v. Wash. Metro. Area Transit
Auth., 374 F.3d 1161, 1163 (D.C. Cir. 2004). This is a
high bar. Id. To elicit such a clear declaration,
Congress “may, in the exercise of its spending power,
condition its grant of funds to the States upon their taking
certain actions.” Coll. Sav. Bank v. Fla. Prepaid
Postsecondary Educ. Expense Bd., 527 U.S. 666, 686
(1999). Congress must exercise its power explicitly: a
congressional waiver provision is constitutional only if it
manifests “a clear intent to condition participation in
the programs funded under the Act on a State's consent to
waive its constitutional immunity.” Barbour,
374 F.3d at 1163 (citation omitted).
instance, in Barbour, the D.C. Circuit determined
that the Civil Rights Remedies Equalization Act
(“CRREA”) unambiguously conditioned a state
agency's acceptance of federal funds on ...