United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
P. MEHTA, UNITED STATES DISTRICT JUDGE
District of Columbia established Defendant Not-For-Profit
Hospital Corporation (“NFPHC”) “as an
instrumentality of the District government . . . which shall
have a separate legal existence within the District
government.” D.C. Code § 44-951.02(a). Plaintiff
John Lott is the former Chief Compliance Officer of NFPHC.
Among Plaintiff's claims against his former employer is
one arising under the anti-retaliation provision of the
federal Family and Medical Leave Act (“FMLA”). In
a motion for judgment on the pleadings, Defendant argues that
it enjoys sovereign immunity from suit as to Plaintiff's
FMLA claim. Its assertion of immunity is a complicated one,
but once recognized, Defendant maintains, the court also must
decline to exercise supplemental jurisdiction over
Plaintiff's remaining D.C.-law claims and therefore must
dismiss this action in its entirety.
reasons that follow, the court finds that NFPHC is not immune
from suit for claims arising under the anti-retaliation
provision of the FMLA. The court therefore has subject matter
jurisdiction over Plaintiff's FMLA claim, and it denies
Defendant's Motion for Judgment on the Pleadings.
asserts a single federal claim of retaliation under the FMLA
and four claims under District of Columbia law: (1) a
violation of the D.C. Whistleblower Protection Act, (2)
retaliation under the D.C. Human Rights Act, (3) retaliation
under the D.C. Family and Medical Leave Act, and (4) breach
of contract. See Second Am. Compl., ECF No. 31,
¶¶ 76-119. Of greatest relevance to Defendant's
motion is Plaintiff's FMLA claim. As to that claim,
Plaintiff alleges that he engaged in protected activity when
he repeatedly protested the firing of a co-worker, Sonia
Edwards, while she was on FMLA leave. See Id.
¶¶ 95-98. Following Edwards's termination,
Plaintiff met with Defendant's then-Chief Executive
Officer to inform him that the hospital “has an
obligation to be in compliance with the laws and that they
cannot terminate individuals who are on FMLA.”
Id. ¶ 48. A day later, on June 9, 2015,
Plaintiff asked the Executive Vice President
(“EVP”) to rescind Edwards's termination, but
the EVP refused to do so. See Id. ¶ 49. On July
20, 2015, Plaintiff notified a newly-hired CEO that Edwards
needed to be reinstated because she was unlawfully terminated
under the FMLA. See Id. ¶ 60. Defendant
terminated Plaintiff ten days later on July 30, 2015. See
Id. ¶ 53.
claims he was fired in retaliation for his protected
activity. See Id. ¶¶ 99-100. Plaintiff
bases his claim on the close temporal proximity between his
termination and his “object[ion] to the violation of
the FMLA laws of a co-worker.” See Id. ¶
present motion for judgment on the pleadings is not its first
to dismiss all claims. Twice before, Defendant moved to
dismiss all claims under Federal Rule of Civil Procedure
12(b)(6), but ultimately the court determined that
Plaintiff's amended pleading stated plausible claims.
See Lott v. Not-For-Profit Hosp. Corp., 296
F.Supp.3d 143 (D.D.C. 2017) (granting motion to dismiss but
permitting leave to amend); see also Lott v.
Not-For-Profit Hosp. Corp., 319 F.Supp.3d 277 (D.D.C.
2017) (denying motion to dismiss Second Amended Complaint).
The day before the initial scheduling conference, Defendant
filed the instant motion, asserting sovereign immunity for
the first time as to Plaintiff's FMLA claim. See
Def.'s Mot. for Judgment, ECF No. 44, Def.'s Mem. in
Support of Mot., ECF No. 44-1 [hereinafter Def.'s Mem.].
Notwithstanding Defendant's latest effort to dismiss all
claims, the court entered a scheduling order because more
than two years had passed since Plaintiff commenced this
action. See Scheduling Order, ECF No. 45. Discovery
is scheduled to conclude on July 31, 2019. Id.
assertion of sovereign immunity requires an Erector Set to
construct. It starts with the foundational contention that,
as an instrumentality of the District of Columbia government,
NFPHC enjoys the District's sovereign immunity.
See Def.'s Mem. at 8-10. Defendant then contends
that, as to Plaintiff's FMLA anti-retaliation claim,
neither Congress nor the D.C. City Council has waived its
immunity. As for Congress, Defendant correctly points out
that in Coleman v. Court of Appeals of Maryland, 566
U.S. 30 (2012), the Supreme Court held that, although
Congress properly abrogated the sovereign immunity of states
and the District of Columbia insofar as the FMLA grants
employees certain rights and protections to take leave for
family care, such abrogation did not extend to the FMLA's
“self-care” provision, that is, the portion of
the FMLA that grants employees rights and protections to take
leave due to their own health problems. Def.'s Mem. at
6-7, 16-18. Because Plaintiff's retaliation claim rests
on the self-care provision, Defendant posits, the holding of
Coleman means that Plaintiff cannot maintain his
then leaves the D.C. City Council. As to it, Defendant
maintains that the District's legislative body did not
waive NFPHC's immunity from suit as to claims under the
FMLA like the one advanced by Plaintiff. Defendant so argues
even though NFPHC's organic statute contains a “sue
and be sued” clause. See Id. at 10-14.
part, Plaintiff does not challenge Defendant's general
contention that NFPHC is imbued with the sovereign immunity
of the District. See Pl.'s Opp'n to
Def.'s Mot., ECF No. 47 [hereinafter Pl.'s
Opp'n], at 3. Instead, he argues that the District waived
NFPHC's immunity from suit by including a “sue and
be sued” clause in the hospital's organic statute
(“NFPHC Act”). Id. at 2-3 (citing D.C.
Code § 44-951.06(1) (providing that “[t]he