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Slack v. Washington Metropolitan Area Transit Authority

United States District Court, District of Columbia

January 11, 2019

ROBYN SLACK, Plaintiff,
v.
WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY et al., Defendants.

          MEMORANDUM OPINION

          TREVOR N. MCFADDEN, U.S.D.J.

         Plaintiff 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.

         I. BACKGROUND

         Ms. 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.

         Ms. 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.

         A few 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.

         Ms. 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 opposes.

         II. LEGAL STANDARDS

         To 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.

         As the 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).

         “[T]he 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.

         To keep on the right track, the Court will undertake its own jurisdictional analysis- assisted but not limited by the parties' arguments[1]-and ask whether sovereign immunity bars each of Ms. Slack's claims.[2] 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.[3] See Slack I, 325 F.Supp.3d at 151.

         III. ANALYSIS

         A. WMATA is Not Entitled to Summary Judgment on Ms. Slack's Retaliation Claim under the ARRA.

         The 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).

         As Ms. 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 Amendment.” Id.

         But Ms. 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).

         For 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 ...


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