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Buck v. Washington Metropolitan Area Transit Authority

United States District Court, District of Columbia

December 5, 2019

ROBERT BUCK, Plaintiff,



         This 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?

         Plaintiff 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 § 1142(c)(1), (c)(7).

         The 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 assistance.”

         Because 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.

         I. BACKGROUND

         A. Factual Background

         For 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)).

         Plaintiff 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, 21:18-22).

         In 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.

         In 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).

         Around 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] skills.” Id.

         In late 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).

         Plaintiff 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).

         The 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 Dep. 41:13-42:7).

         On 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).

         B. ...

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