Tapp v. Washington Metropolitan Area Transit Authority
Civil Action No. 2015-0768
| D.D.C. | Sep 30, 2016Background
- Donald Tapp, a 25‑year at‑will WMATA employee, was terminated as Superintendent of the Montgomery Bus Division on Feb. 3, 2015 after an internal investigation and suspension.
- Shortly after his termination WMATA Metro Transit Police circulated a BOLO flyer with Tapp’s photo and employee number banning him from WMATA property.
- Tapp sued in D.C. Superior Court alleging: (I) procedural due‑process violation (Fifth Amendment) for failure to follow WMATA procedures; (II) 42 U.S.C. § 1983 liberty‑interest violation based on reputational stigma from the BOLO; (III) Title VII sex discrimination; (IV) false light/invasion of privacy from the BOLO; and (V) intentional infliction of emotional distress from the BOLO.
- WMATA removed the case and moved for judgment on the pleadings under Rule 12(c), arguing (inter alia) that Tapp was at‑will (no protected property interest), WMATA is not a § 1983 "person," sovereign immunity bars the tort claims, and Tapp failed to exhaust Title VII administrative remedies.
- The Court granted WMATA judgment on Counts I (due process/property), II (§ 1983), IV (false light/privacy), and V (IIED) but denied the motion as to Count III (Title VII) because exhaustion is an affirmative defense that WMATA must plead and prove; the complaint does not on its face foreclose exhaustion and discovery limited to exhaustion was authorized.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether termination without following WMATA procedures violated procedural due process | Tapp: WMATA violated his Fifth Amendment rights by not observing its own rules when firing him | WMATA: Tapp was an at‑will employee with no protected property interest; no due‑process claim | Court: Held for WMATA — at‑will status means no constitutionally protected property interest, so Count I fails |
| Whether WMATA can be sued under 42 U.S.C. § 1983 for BOLO stigma | Tapp: BOLO stigmatized him, foreclosing employment and liberty to pursue his trade | WMATA: WMATA is not a "person" under § 1983 and thus not liable | Court: Held for WMATA — agency is arm of states and not a § 1983 "person," so Count II dismissed |
| Whether Title VII claim is barred for failure to exhaust administrative remedies | Tapp: (no exhaustion allegations in complaint but contends facts could support claim) | WMATA: Tapp did not file EEOC complaint or include a right‑to‑sue letter; claim unexhausted | Court: Held for Tapp on Rule 12(c) posture — exhaustion is an affirmative defense; complaint does not on its face preclude exhaustion, so Count III survives and limited discovery on exhaustion allowed |
| Whether tort claims (false light/privacy, IIED) based on BOLO are barred by sovereign immunity | Tapp: BOLO dissemination is not a standard police/governmental function and is outside discretionary immunity | WMATA: WMATA shares sovereign immunity; BOLO issuance and police dissemination are governmental/discretionary functions exempting tort liability | Court: Held for WMATA — BOLO issuance tied to discretionary employment and safety/police functions; sovereign immunity bars Counts IV and V |
Key Cases Cited
- Orange v. District of Columbia, 59 F.3d 1267 (D.C. Cir.) (property interest required for termination‑based due process claim)
- Logan v. Zimmerman Brush Co., 455 U.S. 422 (U.S. 1982) (procedural due process principles)
- Mazaleski v. Treusdell, 562 F.2d 701 (D.C. Cir.) (threshold property/liberty inquiry)
- Hall v. Ford, 856 F.2d 255 (D.C. Cir.) (terminable‑at‑will v. for‑cause distinction)
- Bd. of Regents of State Colls. v. Roth, 408 U.S. 564 (U.S. 1972) (no property interest from mere nonrenewal/at‑will employment)
- Will v. Michigan Dep’t of State Police, 491 U.S. 58 (U.S. 1989) (states and state agencies are not "persons" under § 1983)
- Beatty v. WMATA, 860 F.2d 1117 (D.C. Cir.) (WMATA shares sovereign immunity of signatory governments)
- Beebe v. WMATA, 129 F.3d 1283 (D.C. Cir.) (analysis of quintessential governmental functions and immunity)
- KiSKA Const. Corp. v. WMATA, 321 F.3d 1151 (D.C. Cir.) (discretionary/ministerial function test under WMATA compact)
- Morris v. WMATA, 781 F.2d 218 (D.C. Cir.) (WMATA immunity principles)
- McKethean v. WMATA, 588 A.2d 708 (D.C. Ct. App.) (proprietary v. governmental functions under the Compact)