United States District Court, District of Columbia
RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE
case presents the following question of first impression:
Does the Civil Rights Remedies Equalization Act
(“CRREA”), 42 U.S.C. § 2000d-7, waive the
sovereign immunity of state transportation agencies for
purposes of civil actions brought by private parties under
the National Transit Systems Security Act
(“NTSSA”), 6 U.S.C. § 1142?
Robert Buck, a former employee of Defendant Washington
Metropolitan Area Transit Authority (“WMATA”),
brought this suit against WMATA, alleging that it violated
the whistleblower protection provisions of the NTSSA by
firing him because he provided information to his supervisors
about public safety violations at WMATA. Dkt. 1. The NTSSA,
among other things, prohibits public transportation agencies
from “discharg[ing]” or otherwise
“discriminat[ing] against an employee” based
“in whole or in part” on the employee's
“lawful, good faith” provision of information
relating to conduct that “the employee reasonably
believes constitutes a violation of any Federal law, rule, or
regulation relating to public safety or security” to
“a person with supervisory authority over the
employee.” 6 U.S.C. § 1142(a). To enforce this
right, the NTSSA permits an aggrieved party to file an
administrative complaint with the Secretary of Labor and, if
the Secretary does not issue a final decision within 210
days, to bring a “de novo” action against his
employer in federal district court. Id. at §
wrinkle presented here is that WMATA is an agency of the
States of Maryland and Virginia (as well as of the District
of Columbia) and is, therefore, entitled to immunity from
private suit under the Eleventh Amendment. See Barbour v.
Wash. Metro. Area Transit Auth., 374 F.3d 1161, 1163
(D.C. Cir. 2004). Nothing contained in the NTSSA puts the
States on clear notice that, by accepting federal
transportation funds, they implicitly waive their immunity
from suit under the NTSSA. The one statute that even arguably
provides such notice is the CRREA, which abrogates the
Eleventh Amendment immunity of the States for purposes of
private suits brought in federal court for violations
“of section 504 of the Rehabilitation Act of 1973,
title IX of the Education Amendments of 1972, the Age
Discrimination Act of 1975, title VI of the Civil Rights Act
of 1964, or the provisions of any other Federal statute
prohibiting discrimination by recipients of Federal financial
assistance.” 42 U.S.C. § 2000d-7(a)(1)
(emphasis added). The dispositive question, accordingly, is
whether the NTSSA is-like the Rehabilitation Act, Title IX,
the Age Discrimination Act, and Title VI-a “statute
prohibiting discrimination by recipients of Federal financial
the Court concludes that it is not, and because Plaintiff
fails to identify any other applicable waiver or abrogation
of WMATA's sovereign immunity, the Court lacks
jurisdiction and must, accordingly, grant WMATA's motion
for summary judgment and dismiss the case.
purposes of WMATA's motion for summary judgment, the
Court “must view the evidence ‘in the light most
favorable to'” Plaintiff, as the nonmoving party.
Tolan v. Cotton, 572 U.S. 650, 657 (2014) (per
curiam) (quoting Adickes v. S.H. Kress & Co.,
398 U.S. 144, 157 (1970)).
worked as an at-will supervisor at the Landover Division, and
later the Four Mile Division, of WMATA. Dkt. 19-7 at 5, 7
(Buck Dep. 15:16-20, 25:14-20). His work involved
“direct[ing] all [b]us [t]ransportation related work
and activities for his . . . assigned sector, ”
including “correct[ing] safety . . . issues.”
Dkt. 19-3 at 1-2 (Def. Ex. 2). Plaintiff was required to
inform his supervisors when a bus “operator did
anything” constituting “a violation of WMATA
safety rules.” Dkt 19-7 at 7 (Buck Dep. 24:11-25:4). He
was responsible for discipling the operator, documenting the
violation, and “forward[ing]” the relevant
document to the appropriate parties. Id. (Buck Dep.
25:4); Dkt. 21-1 at 31 (Pl. Ex. 3). One of Plaintiff's
safety-related job duties included “[o]versee[ing]
[the] DriveCam program and” providing
“feedback” to ensure that drivers received
effective “coaching, ” discipline, and
“training.” Dkt. 21-1 at 31 (Pl. Ex. 3). The
DriveCam program maintains video recording devices in WMATA
buses that allow WMATA to monitor operators' performances
and other information. See Dkt 19-7 at 10 (Buck Dep.
34:4-35:16). Although Plaintiff was not a union member, many
of the employees that he worked with and supervised at WMATA
were. See Id. at 5-6 (Buck Dep. 15:21-16:12,
February 2013, Plaintiff's direct supervisor, Ted Harris,
and his reviewing manager, Jack Requa, assessed
Plaintiff's job performance. Dkt. 21-1 at 37 (Pl. Ex. 3).
They noted that Plaintiff “is very personable and well
respected by his subordinates and peers” and
“[h]as a great relationship with the union
representatives.” Id. They stated that
Plaintiff had “restarted the employee of the month
program” and “started an Employee mentor
program.” Id. at 32. Plaintiff also received
an “[o]utstanding” rating for “Safety
Conversations, ” “Accident Reduction, ”
“Worker's Compensation Reduction, ” and
“DriveCam Coaching Effectiveness.” Id.
at 31. Overall, Plaintiff's evaluators gave him an
“[o]utstanding” review, concluding that he was
“capable of running a transportation division, ”
had “done an outstanding job of communicating
effectively and efficiently his safety needs, ” and was
“very influential and well respected within”
WMATA. Id. at 40.
March 2013, Buck witnessed a bus operator named R.V. Mack
stop a bus in a crosswalk to load passengers, nearly close
the bus doors on a Service Operations Manager, Julio Santana,
and then drive the bus forward while still very close to
Santana. Dkt. 21-1 at 44 (Pl. Ex. 4); Dkt. 21-2 at 24-25
(Buck Dep. 50:12-51:16); Dkt. 21-2 at 92-93 (Santana Dep.
54:16- 55:13). In Plaintiff's view, Mack's behavior
constituted a “safety violation.” Dkt. 21-2 at 25
(Buck Dep. 51:15-16). Plaintiff later learned that Harris had
met with Mack's supervisor, Sophia Coleman-Hill, and a
union representative to discuss the incident. Dkt. 21-2 at
22-23 (Buck Dep. 48:6-49:5). According to Plaintiff, when he
spoke to Harris about the incident and contradicted
Coleman-Hill's account in at least one respect, Harris
“got all nasty and [began] yelling at [Plaintiff]
saying, [‘]That's another Superintendent you're
calling a liar . . . . This is a team.[']”
Id. at 25 (Buck Dep. 51:4-11). Santana, who
Coleman-Hill accused of falsely claiming that he was injured,
suggested at his deposition that Coleman-Hill was attempting
to protect Mack from repercussions for his dangerous driving.
Dkt. 21-1 at 95-98 (Santana Dep. 57:20-60:10).
April 17, 2013, Harris informed Plaintiff by memorandum that
it had “come to [his] attention” that
Plaintiff's “approach to managing staff and
implementing rules, regulations and discipline [was] causing
great concern.” Dkt. 19-4 (Def. Ex. 3). The memorandum
continued: “I believe your approach is intimidating and
has created hostility within the Landover operation to a
point that is unacceptable.” Id. Harris
informed Plaintiff that his probationary period as a new
employee would be extended and he would be monitored for
“significant improvement in [his interpersonal]
September or early October 2013, Plaintiff reviewed a
DriveCam video that showed a bus operator, Warrior
Richardson, “turning around away from looking out the
front window, . . . [and] reaching up to an electronic
device” called a CleverCAD, which the “operator
logs into” and which keeps track of and provides
various kinds of information used in bus operations, while he
was still operating the bus. Dkt. 19-7 at 9-10 (Buck Dep.
33:30-35:16); Dkt. 19-5 at 2 (Def. Ex. 4) (stating that the
violation of the electronic device policy occurred on
September 28, 2013). Using a CleverCAD while operating a bus
violated WMATA policy. See Dkt. 19-5 at 3 (Def. Ex.
3) (describing WMATA's electronic device policy).
According to Plaintiff, after viewing the video of
Richardson's safety violation, he consulted with Lynda
Jackson from “labor relations, ” Dkt. 19-7 at 10
(Buck Dep. 35:17-21); Dkt. 21-2 at 67 (Jackson Dep. 52:1-18),
who told him that WMATA policy required termination of any
driver who used such a device while operating a bus, Dkt.
19-7 at 10 (Buck Dep. 37:10-15); see also Dkt. 21-2
at 45 (Harris Dep. 29:16-31:16) (testifying that the penalty
for using an electronic device, such as a “cell
phone, ” “I-pad, ” or “recording
device, ” while operating a bus was termination).
Plaintiff completed his investigation and sent the
termination paperwork to Jackson for approval. Dkt. 19-7 at
11 (Buck Dep. 39:1-10).
issued Richardson a memorandum of dismissal on October 9,
2013. Dkt. 19-5 at 2-4 (Def. Ex. 4). The memorandum explained
that the DriveCam footage showed Richardson using an
electronic device while operating a bus and that this conduct
violated WMATA's “Zero Tolerance” policy.
Id. at 2-3. The memorandum further stated that
Office Manager Carol Martin interviewed Richardson on October
3, 2013; that the two viewed the recording together; and that
Richardson told Martin that he was “attempting to log
off in the radio.” Id. at 2; see also
Dkt. 21-1 at 49 (Pl. Ex. 6) (summarizing Richardson's
description of the event).
next day, October 10, 2013, Buck emailed Harris informing him
that he had terminated Richardson one day earlier “for
Violating the Electronic Device Policy by using the bus radio
to log off.” Dkt. 19-5 at 5 (Def. Ex. 4). Buck
apologized to Harris “for not sending this [email]
earlier” and explained that he had “counseled
with Lynda Jackson before taking the action.”
Id. Buck testified at his deposition that he
“had an email set up to notify” Harris on October
9, 2013; that he “thought [he] had sent it;” and
that he only realized “when [he] looked” at his
emails “the next day” that he had forgotten to
“hit ‘send.'” Dkt. 19-7 at 11-12 (Buck
October 11, 2013, Harris went to Buck's office and
informed Buck that he “was terminated.” Dkt. 19-7
at 8-9 (Buck Dep. 29:8-30:14). A memorandum dated October 10,
2013, from Harris and addressed to Buck, discusses the
reasons for Buck's termination. Dkt. 19-6 (Def. Ex. 5).
It mentions the April memorandum that had informed Buck of
his inadequate performance and had extended his probationary
period. Id. at 1. The memorandum states: “Team
Members . . . have expressed extreme dissatisfaction with
your administrative approach and your inflexibility to deal
with discipline through proper internal protocols and CBA
[Collective Bargaining Agreement] regulations. Most recently,
you terminated an employee without properly and
thoroughly” discussing the matter with either
“Labor Relations staff” or Harris. Id.
Buck testified that no one showed him this memorandum on the
day he was terminated. Dkt. 19-7 at 8 (Buck Dep. 28:1-19).
Buck further testified that, after his termination, he
learned that Richardson was the son of Coleman-Hill, the
WMATA superintendent who had been involved in the earlier
conflict over the safety incident involving Mack and Santana.
Dkt. 19-7 at 12 (Buck Dep. 43:17-44:14).