Tapp v. Wash. Metro. Area Transit Auth.
306 F. Supp. 3d 383
D.C. Cir.2016Background
- Donald Tapp, a 25-year at-will WMATA employee, was suspended January 7, 2015 and terminated February 3, 2015 as Superintendent of the Montgomery Bus Division.
- WMATA issued a BOLO (Be On the Look-Out) flyer with Tapp's photograph and employee number, barring him from WMATA property.
- Tapp sued in D.C. Superior Court alleging: procedural due process (Count I), § 1983 liberty-stigma (Count II), Title VII gender discrimination (Count III), false light/invasion of privacy (Count IV), and intentional infliction of emotional distress (Count V). WMATA removed the case to federal court.
- WMATA moved for judgment on the pleadings under Rule 12(c) as to all counts; the Court treated pleadings as true for ruling purposes.
- The Court granted judgment for WMATA on Counts I, II, IV, and V, finding (inter alia) that: Tapp had no constitutionally protected property interest as an at-will employee; WMATA is not a "person" under § 1983; and WMATA enjoys sovereign immunity for the BOLO-related torts.
- The Court denied judgment on Count III (Title VII) because failure-to-exhaust is an affirmative defense that WMATA must plead and prove and the complaint does not on its face foreclose exhaustion; limited discovery on exhaustion was ordered.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether termination without following WMATA procedures violated Due Process (property interest) | Tapp: WMATA failed to follow its own rules, violating Fifth Amendment due process | WMATA: Tapp was an at-will employee with no protectable property interest | Held: Judgment for WMATA — no property interest in at-will employment, so Count I fails |
| Whether WMATA is liable under 42 U.S.C. § 1983 for BOLO stigma (liberty interest) | Tapp: BOLO stigmatized him and foreclosed employment, depriving liberty | WMATA: WMATA is not a § 1983 "person"; claim fails even if stigma alleged | Held: Judgment for WMATA — WMATA is not a "person" under § 1983, so Count II dismissed |
| Whether Title VII claim (gender discrimination) is barred for failure to exhaust administrative remedies | Tapp: Opposes dismissal; complaint does not show failure to exhaust | WMATA: Plaintiff did not file EEOC complaint or attach right-to-sue; Count III should be dismissed | Held: Denied as premature — exhaustion is an affirmative defense that WMATA must plead/prove; complaint does not on its face foreclose relief; limited discovery permitted |
| Whether common-law tort claims (false light, IIED) are barred by WMATA sovereign immunity | Tapp: BOLO dissemination was not routine police or protected governmental function; immunity should not apply | WMATA: Acts were discretionary employment and police functions; Compact immunizes WMATA for governmental functions | Held: Judgment for WMATA — issuance/dissemination of BOLO falls within discretionary/governmental functions and is immune under the Compact; Counts IV and V dismissed |
Key Cases Cited
- Will v. Michigan Department of State Police, 491 U.S. 58 (Sup. Ct. 1989) (States and state agencies are not "persons" under § 1983)
- Logan v. Zimmerman Brush Co., 455 U.S. 422 (Sup. Ct. 1982) (due process requires procedural protections for deprivation of protected interests)
- Board of Regents of State Colleges v. Roth, 408 U.S. 564 (Sup. Ct. 1972) (property interest in employment arises only from more than at-will status)
- KiSKA Construction Corp. v. WMATA, 321 F.3d 1151 (D.C. Cir. 2003) (distinguishing discretionary vs. ministerial functions under WMATA Compact immunity)
- Beebe v. WMATA, 129 F.3d 1283 (D.C. Cir. 1997) (employment decisions are discretionary and typically immune)
- Beatty v. WMATA, 860 F.2d 1117 (D.C. Cir. 1988) (WMATA shares sovereign immunity of signatory jurisdictions)