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Lott v. Not-For-Profit Hospital Corp.

United States District Court, District of Columbia

March 7, 2019

JOHN LOTT, Plaintiff,
v.
NOT-FOR-PROFIT HOSPITAL CORPORATION d/b/a/ UNITED MEDICAL CENTER & THE DISTRICT OF COLUMBIA, Defendant.

          MEMORANDUM OPINION AND ORDER

          AMIT P. MEHTA, UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         The 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.

         For the 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.

         II. BACKGROUND

         A. Factual Background

         Plaintiff 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.

         Plaintiff 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. ¶ 100.

         B. Procedural History

         Defendant's 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.

         III. ANALYSIS

         Defendant's 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 claim. Id.

         That 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.

         For his 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 ...


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