Ndzerre v. Washington Metropolitan Area Transit Authority ( 2016 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
HABAKUK NDZERRE, )
)
Plaintiff, )
)
v. ) Civil Action No. 15-1229
)
WASHINGTON METROPOLITAN )
AREA TRANSIT AUTHORITY, et al., )
) D
Defendants. ) F 1 L E
n MAR 23 2016
MEMORAD M O``PINION i§:fl.‘f§lg ll,?$.l``?l.'§‘§li.l“i l?'lll‘f.‘.``l§"§,l.ii
March §2:%016 [Dkt. #6]
Plaintiff Habakuk Ndzerre ("plaintiff") brings this action, pro se, against the
Washington Metropolitan Area Transit Authority ("WMATA" or "defendant") and
Hernando O’Farrell, in his capacity as a Manager for WMATA, alleging, inter alia,
violations of the Family and l\/ledical Leave Act ("FMLA"), Occupational Safety and
Health Act ("OSHA"), the National 'l``ransit Systems Security Act ("NTSSA"), and Title
VII of the Civil Rights Act of 1964 ("Title VII"). See Am. Compl. [Dkt. #3]. Before this
Court is defendant WMATA’s Motion to Dismiss [Dkt. #6] ("Def.’s Mot."). For the
following reasons, defendant’s motion is GRANTED in part and DENIED in part.l
l This Memorandum Opinion is based on defendant’s Motion to Dismiss and Memorandum of Points and
Authorities in Support thereof [Dkt. #6]; plaintiffs Memorandum in Opposition thereto [Dkt. #9]; and
defendant’s Reply [Dkt. #10]. Plaintiff’s opposition attaches documents regarding the complaint he filed
with the Department of Labor. To date, plaintiff has also filed two Motions for J udicial Notice [Dkts. #8,
#l l] with numerous attached exhibits. In order to avoid converting the motion to dismiss into one for
summary judgment, the Court has only considered the attachments to plaintiffs opposition and has not
considered the numerous exhibits attached to plaintiff’ s motions for judicial notice. See Williams v.
l
BACKGROUND
Since January 3, 2000, plaintiff, who was born in Cameroon, West Africa, has
been employed by WMATA as an automatic train control 1nechanic. Am. Co1npl. fm 4,
9. In his amended complaint, plaintiff recounts a series of actions by WMATA beginning
in 2006 that allegedly violate various laws, including alleged acts of discrimination and
harassment due to plaintiffs national origin and in retaliation for plaintiff’s participation
in statutorily protected activities. Am. Compl. ll l0.
To begin with, plaintiff believes that on two occasions he was denied his rights
under the FMLA. First, in April 2006, plaintiff asserts that despite his request for leave
due to the birth of his son and for various illnesses, WMATA management intentionally
failed to provide him with the appropriate FMLA paperwork. A1n. Compl. 111 2, ll. As a
consequence, plaintiff was forced to use his accrued personal leave. Am. Compl. jl ll.
Similarly, on or around June 2012, plaintiff requested medical leave to undergo an
endoscopy, colonoscopy, and hemorrhoid surgery, yet defendant denied him FMLA
benefits and held him back from promotion even though plaintiff submitted the necessary
paperwork upon returning to work. Am. Compl. 1 l3.
Plaintiff also alleges that he was subject to discrimination, harassment, retaliation,
and a hostile work environment. He first explains that, in 201 l, he was denied a one-step
promotion from C Mechanic to B Mechanic despite passing all written and practical tests
for that promotion, even' though all other mechanics in the same status were promoted.
Chu, 641 F. Supp. 2d 3 l, 35 (D.D.C. 2009) (relying on EEOC administrative documents in considering
motion to dismiss).
review of complaints on which the Department has failed to act within 210 days. See 49
U.S.C. § 20l09(d). Because this case does not fall into either of these categories,
plaintiff’ s claims under the FRSA cannot proceed.
E. Title VII Claims
As a preliminary matter, this Court finds that the Title VII claims against
defendant Hernando O’Farrell must be dismissed as redundant and an inefficient use of
judicial resources. Supervisory employees may only be sucd in their official capacity,
because employers alone are liable for Title VII violations. See Gary v. Long, 59 F.3d
l39l, 1399 (D.C. Cir. l995). As such, a claim against a supervisory employee essentially
`` merges with a claim against an employer, id., and thus it is "redundant and an inefficient
use of judicial resources" to name both the employee and the employer in a Title VII
claim. Cooke-Seals v. Dz``strz'ct ofColumbz``a, 973 F. Supp. 184, 187 (D.D.C. 1997).
Therefore it is within this Court’s discretion to dismiss defendant O’Farrell from this
action. See Brown v. Corr. Corp. ofAm., 603 F. Supp. 2d 73, 78 (D.D.C. 2009)
(dismissing Title VII claim against supervisor as redundant).
As to the Title VII claims against defendant Wl\/IATA, defendant moves to
dismiss plaintiff’ s claims under Federal Rule 12(b)(6) for failure to state a claim of
discrimination, retaliation, or hostile work environment for which relief can be granted.
Defendant asserts that plaintiff merely recites "a hodgepodge of events" that he attributes
to "discrimination for being from Cameroon, West Africa" but only supported by
"conclusory and conjectural[] statements." Def.’s Mem. 4. The Court finds, however,
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that the allegations contained in plaintiffs amended complaint, considered in the light
most favorable to plaintiff, are indeed sufficient to state a claim under Title VII.
Title V1I prohibits employers from "discriminat[ing] against any individual with
respect to his compensation, terms, conditions, or privileges of employment, because of
such individual’s race, color, religion, sex, or national origin," 42 U.S.C. § 2000e-2(a)(1),
and from retaliating against any employee who opposes unlawful discrimination or
participates in an employment discrimination procccding. See 42 U.S.C. §§ 2000e-3(a).
ln addition, the Supreme Court has held that these provisions of Title Vll make it
unlawful for an employer to "requir[e] people to work in a discriminatorily hostile or
abusive environment." Harrz``s v. Forklz``fz‘ Sys., Inc., 510 U.S. 17, 21 (1993). To
adequately plead a viable claim of discrimination under Title VII, a plaintiff must allege
that (i) he suffered an adverse employment action (ii) because of his race, color, religion,
sex, or national origin. See Baloch v. Kempz‘horne, 550 F.3d 1191, 1196 (D.C. Cir.
2008). Similarly, to plead unlawful retaliation, a plaintiff must allege sufficient facts
from which it can be reasonably inferred (i) that he engaged in protected activity
opposing discrimination; (ii) that he suffered a materially adverse employment action by
his employer; and (ii) that "there was a causal link between the' protected activity and the
adverse action." Hamz'lton v. Geithner, 666 F.3d 1344, 1357 (D.C. Cir. 2012). Finally, to
state a claim for hostile work environment, a plaintiff must allege "‘discriminatory
inti1nidation, ridicule, and insult’ that is ‘sufficiently severe or pervasive to alter the
conditions of the [plaintiff]’s employment and create an abusive working
environment."’ Baloch, 550 F.3d at 1201 (quoting Harris, 510 U.S. at 21). v
12
In this case, plaintiff proceeds on all three theories-discrimination based on
national origin, retaliation for filing a complaint``with the EEOC, and hostile work
environment. Although plaintiffs complaint does not allege each of these claims with
precision, our Circuit Court has long recognized the ease with which a plaintiff alleging
employment discrimination can survive a motion to dismiss under Rule l2(b)(6). See
Spczrrow v. Urziz‘edAz``r Lz``nes, Inc., 216 F.3d l lll, lll5 (D.C. Cir. 2000) ("Because racial
discrimination in employment is ‘a claim upon which rclicf can be granted,’ . . . ‘I was
turned down for a job because of my race’ is all a complaint has to say to survive a
motion to dismiss under Rule l2(b)(6)." (internal quotation marks omitted)); Rochon v.
Gonzales, 438 F.3d l2l l, l220 (D.C. Cir. 2006) (explaining that "in order to survive a
motion to dismiss, all [the] complaint has to say, is ‘the Government retaliated against me
because I engaged in protected activity.’) (internal quotation marks omitted)).
ln support of his claim of discrimination based on national origin, plaintiff
describes several adverse actions taken against him-including that he was denied a
promotion when all other mechanics in the same status were promoted; he was
summoned to his supervisors office on a day he was scheduled to be out of the office in
order to generate a "failure to comply" complaint against him and subsequently put on
leave for ninety days; and he was required to perform additional supervisory functions
without compensation when other similarly situated employees were compensated_and
ascribes each of these actions to discrimination based on his national origin. Am. Compl.
w l2, l6, l8. Plaintiff also alleges facts to support a claim of retaliation. F or example,
he states that the requirement that he perform additional duties without compensation was
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also motivated by retaliation for his earlier participation in the EEOC complaint process.
Am. Compl. 111 l7, l8. In support of his hostile work environment claim, plaintiff adds
to this list that he was pressured into supporting a fraudulent incident report because his
supervisor "perceived that [he] did not know how to write English based on [his] national
origin," was removed from necessary safety and security program classes, was denied
review of his promotional test results, and a course instructor stated that he would "never
. . . advance to the next promotion step." A1n. Compl. 111 l5, 19, 20, 2l.
Based on the foregoing, I find that plaintiff s complaint, construed in the light
most favorable to him, contains "enough facts to . . . nudge[] [his] claims across the line
from conceivable to plausible," which is all that is required at this stage. Bell Atlanlic
Corp. v. Twombly, 550 U.S. 544, 570 (2007). Ultimately, plaintiff will have to support
his allegations with evidence in the record and show that his national origin or protected
activity was the basis for adverse employment actions taken against him. At this
preliminary stage, however, this Court cannot conclude that his Title VII claims against
WMATA should be dismissed.
CONCLUSION
For the foregoing reasons, defendant’s Motion to Dismiss is GRANTED in part
and DENIED in part. A separate Order consistent with this decision accompanies this
Memorandum Opinion.
United States District Judge
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A1n. Co1npl. 11 l2. Plaintiff avers that the basis for this decision was discriminatory
ani1nus. A1n. Co1npl. 11 l2. Plaintiff then describes an incident in January 2013 in which
he was pressured to go along with efforts to justify the prior wrongful demotion of
Mildred Wood, a Rail Supervisor. Am. Co1npl. 11 l5. Specifically, on or about January 7,
20 l 3, plaintiff s immediate supervisor, Hernando O’Farrell, asked him to assist in
preparing an incident report for a rail incident that occurred on or about October 22, 20l2
that would justify Wood’s demotion. Am. Compl. 11 l5. Thereafter, plaintiff was
presented with an incident report purportedly containing information from him and
bearing his signature, but that he had never seen or signed, and, indeed, did not reflect
plaintiff s knowledge of the 20l2 rail incident. Am. Compl. f[ l5. Plaintiff reported the
apparent forgery to WMATA management and requested an official investigation. A1n.
Co1npl. 1 l5. Uplon further investigation, O’Farrell stated that he had generated the
incident report and used plaintiffs information and electronic signature because plaintiff
"did not know how to write English." Am. Compl. {[ l5. _Plaintiff asserts that WMATA
retaliated against him for his refusal to participate in the production of this fraudulent
incident report. Am. Compl. 11 l0.
Indeed, plaintiff contends that in February 20l3, defendant devised a scheme to
generate a "bogus ‘failure to comply"’ complaint against him. A1n. Compl. 11 l6.
Specif``ically, plaintiff alleges that he received a management directive to report _
immediately to Shift Supervisor Le Tuong Duy’s office at a time when he could not
comply because he was on scheduled vacation. Am. Compl. 11 l6. Nevertheless, because
plaintiff happened to stop by the office to check on an unrelated matter, he became aware
3
of the directive and reported to the supervisor’s office. A1n. Compl. 11 16. There,
plaintiff was directed to WMATA’S Employee Assistance Program ("EAP") for
consultation and evaluation, despite having no performance or behavioral issues in the
workplace. Am. Compl. il 16. When plaintiff returned from vacation on or about March
l4, 2013, he was informed he needed to report back to EAP for reevaluation and received
a letter, which he claims did not actually come from EAP, that he was being held off
_ from work by EAP pending completion of a fitness evaluation and assessment Am.
Co1npl. 11 16. As a result, plaintiff was not allowed to work for over ninety days pending
this assessment. Am. Co1npl. il 16.
On June lO, 2013, after making his grievances known to his union and to
Wl\/IATA’s manage1nent, plaintiff filed a complaint with the Equal Employment
Opportunity Co1n1nission ("EEOC") regarding defendant’s alleged discriminatory
conduct. Am. Compl. 11 l7. The``reafter, plaintiff alleges defendant retaliated against him
in a variety of ways. For example, on or about June l2, 2013, plaintiff was taken out of a
series of safety and security classes that were necessary for enhancing his work
performance in a manner that was humiliating, Am. Compl. 1[ 20; beginning in March
2014, plaintiff was required to perform certain supervisory functions, outside of his
regular job description, without``being duly compensated for these duties, Am. Compl. 11
18; on or about May 2014, plaintiff learned that Jonita Dowling, an Automatic Train
Control instructor, stated to her students that as long as she was in charge of
administering testing required for job promotions, plaintiff would never pass the testing
required to achieve a promotion, Am. Compl. 1[ 19; and on or about April and Nove1nber
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2014, plaintiff was denied review of his test results following promotional testing, Am.
Co1npl. 11 2l. On April 30, 2015, plaintiff received notice from the EEOC that his
complaint was being dismissed, Am. Compl. 1[ 22, and on July 30, 2()15, he filed this
action, see Co1npl. [Dkt. #1].
LEGAL STANDARD
A. Federal Rule of Civil Procedure 12(b)(l)
Federal courts are courts of liinitedjurisdiction, and a court should begin with a
presumption that a case lies outside its jurisdicti0n. Kokkonen v. Guam’z``an Lzfe Ins. C0.
ofAm., 5 ll U.S. 375, 377 (1994). The burden of establishing subject matter jurisdiction
rests upon the party asserting it. Ia’.; see also Moms Agaz``nst Mercury v. Fooa’ & Drug
Admz'n., 483 F.3d 824, 828 (D.C. Cir. 2007). 'ln evaluating a Rule l2(b)(l) 1notion, the
Court must construe the allegations in the complaint in the light most favorable to the
plaintiff. See, e.g., Hohri v. Um``ted States, 782 F.2d 22'7, 241 (D.C. Cir. 1986), vacated
on other groana’s, 482 U.S. 64 (1987). However, the Court’s inquiry is not limited to the
allegations in the complaint. Ia’. Rather, "a court may consider such materials outside the
pleadings as it deems appropriate to resolve the question [of] whether it has jurisdiction
to hear the case." Scolaro v. D.C. Ba’. ofElectz``ons & Ethz``cs, 104 F. Supp. 2d 18, 22
(D.D.C. 2000). l
B. Federal Rule of Civil Procedure 12(b)(6)
To survive a motion to dismiss under Federal Rule of Civil Procedure l2(b)(6),
"a complaint must contain sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2()()9) (internal
5
quotation marks omitted). "[T]he Court need not accept inferences drawn by plaintiff[] if
such inferences are unsupported by the facts set out in the complaint Nor must the court
accept legal conclusions cast in the form of factual allegations." Kowal v. MCI
Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). The Court may consider "any
documents either attached to or incorporated in the complaint and matters of which [the
court]__may take judicial notice," EEOC v. St. Francz``s Xavier Parochial Sch., 117 F.3d
621, 624 (D.C. Cir. 1997), as well as documents appended to a motion to dismiss whose
authenticity is not disputed, if they are referred to in the complaint and integral to a clai1n.
See Kaempe v. Myers, 367 F.3d 958, 965 (D.C. Cir. 200_4). Although pro se complaints
are liberally construed,. see Erickson v. Pam’us, 551 U.S. 89, 94 (20()7) (per curiam), the
basic pleading rules must be met. See Budz``k v. Dartmouth-Hitchcock Mea'. Ctr., 937 F.
Supp. 2d 5, ll (D.D.C. 2013).
ANALYSIS
A. Family and Medical Leave Act Claims
Defendant argues that plaintiffs FMLA claims should be dismissed because
WMATA enjoys Eleventh Amendment immunity for violations of the Fl\/ILA’S self-care
provisions, or, alternatively, because these claims are barred by the applicable statute of
limitations. Def.’s Mem. of P. & A. in Supp. ofits Mot. to Dismiss 2 [Dkt. #6] ("Def.’s
Mem."). Because I agree that plaintiffs FMLA claims were untimely filed, I do not
reach the issue of immunity. l
The statute of li1nitations for a private cause of action under the FMLA is two
years after the date of the last event constituting the alleged violation and three years if
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the violation was willful. See 29 U.S.C. § 26l7(c)(l)-(2). The alleged violations plaintiff
complains of date back to April 2006 and June 20l2. Am. Compl. {Hl ll, l3. Plaintiff,
however, did not file this action until July 30, 2015, over three years later. Thus, even
assuming the alleged violations were willful, plaintiff has failed to comply with the
applicable statute of limitations. Plaintiff offers little to rebut this argument, stating only
that the statute of limitations on his Fl\/lLA claims was "not running out while he was
going through all administrative i‘eiiiedies." Pl.’s Meni. in Opp’n to Def.’s l\/lot. to
Dismiss' 27 [Dl2010 WL 4865818, at
(E.D. Mich. Nov. 16, 2010). As such, tolling cannot save plaintif``t"s Fl\/ILA claims,
which are dismissed as untimely filed.
B. National Transit Systems Security Act Claim
The NTSSA prohibits retaliation against an employee who reports what he
reasonably believes is "a violation of any Federal law, rule, or regulation relating to
public transportation safety or security." 6 U.S.C. § ll42(a)(l). The NTSSA does not,
however, create a private cause of action for violations of the Act. Rather, the NTSSA
outlines an administrative process for aggrieved employees to file complaints with the
Department of Labor (the "Department") and provides jurisdiction to federal district
courts in two limited circumstances: (l) to force a person to comply with a final order by
7
the Department, 6 U.S.C. § 1142(0)(6), and (2) to review a complaint de novo when the
'Department has failed to issue a final decision within 210 days of filing and the delay was
not due to the bad faith of the employee, 6 U.S.C. § 1142(0)(7). This case does not fall
into either category. Plaintiff does not argue that WMATA has failed to comply with a
final order by the Department; nor does he suggest that the Department failed to issue,
within 210 days, a final decision on a complaint he filed. lt appears that plaintiff filed a
complaint with the Occupatioiial Safety and I~Iealth Administration ("Administration")_
the office within the Departinent of Labor tasked with receiving NTSSA complaints-on
June 6, 2013. See Pl.’s Opp’n EX. 1, at 43-44.2 However, it also appears that the
Ad1ninistration did not sit on this complaint for more than 210 days ; rather, on Nove1nber
19, 2013 it sent plaintiff a notice stating that due to the parties reaching a settleinent, the
Departinent was closing the investigation of plaintiff s coinplaint. Pl.’s Opp’n Ex. 1, at
45. As explained, the NTSSA narrowly liinits district court review of coinplaints. lt does
not provide for review of cases terminated on the basis of a settlement agreement See 6
U.S.C. § 1142(c)(3)(A). Therefore, this Court does not have jurisdiction to hear
plaintiffs claims under the NTSSA, and these claims are dismissed.
C. Occupational Safety and Health Act Claim
Defendant argues, and plaintiff does not appear to contest, that plaintiffs OSHA
claims must be dismissed because OSHA does not provide a private cause of action.
Indeed, our Circuit Court has held precisely that. See Am. Fea’ ’n of Gov 'i‘ Emps., AFL-
2 For citations to this exhibit, the Court refers to the page numbers assigned in the ECF caption for ease of
reference.
CIO v. Rumsfeld, 321 F.3d 139, 143-45 (D.C. Cir. 2003). F0r this reason, plaintiffs
claims under OSHA are dis1nissed.
D. Claims Asserted for the First Time in Plaintiff’ s Opposition to Defendant’s
Motion to Dismiss
ln his opposition to defendant’s motion to dismiss, plaintiff, for the first time,
raises claims under the D.C. Hu1nan Rights Act ("DCHRA"), the D.C. Whistleblower
Act ("DCWA"), and the Federal Railroad Safety Act ("FRSA"). Pl.’s Opp’n 28-37.
Defendant argues that these new claims are not properly before this Court and that "any
new allegations must be brought by the Plaintiff in a Motion to Amend the Complaint."
Def.’s Reply 2 [Dl193 F.3d 545, 548-49 (D.C. Cir. 1999). Heeding these d.irectives, l cannot
agree that the claims first alleged in pla_intiff’s opposition are necessarily improperly
bet``ore the Court. ``Btlt even if l accept plainti.ff"s opposition as a de facto amendment to
his com_plaint_, it cannot save plaintiffs case because l agree with defendant that the new
claims fail as a matter of la,w.
1. D.C. Human Rights Act and D.C. Whistleblower Act Claims
Defendant argues that because WMATA is an interstate compact agency, it is not
subject to claims under the DCHRA nor the DCWPA. Def.’s Reply 2. l agree.
WMATA was established by a compact authorized by Congress and signed by
Maryland, Virginia, and the District of Colu1nbia ("the Compact"), and it is an
instrumentality of those three separate jurisdictions. Washington Metropolitan Area
Transit Regulation Compact, Pub. L._No. 89-774, 80 Stat. 1324 (1966) (codified as
amended at D.C. Code § 9-1107.01 (2010)). Under the Compact, WMATA is expressly
"exempt from all laws, rules, regulations and orders of the signatories and of the United
States otherwise applicable to such transit services and persons, except . . . laws, rulcs,
regulations and orders relating to inspection of equipment and facili_ties." D.C. Code § 9-
ll07.0l jj 77; see also OPEIU, Local 2 v. Washingz‘on Metro. Area Transz'tAuth., 724
F.Zd 133, 139 (D.C. Cir. 19,83). Thus, I agree with a number of other districtjudges who
have found that WMATA is not subject to these laws. See, e.g., Taylor v. Washz``ngton
Mez‘ro. Area Transiz‘Auth., 109 F. Supp. 2d 1l, 18 (D.D.C. 2000) (holding WMATA is
not subject to the DCHRA); Lucero-Nelson v. Washz``ngton Metro. Area Transz``t Auth., l
F. Supp. 2d l, 7 (D.D.C. 1998) (same); Sampson v. Wczshz``ngton Metro. Area Transz``t
Auth., 2005 WL 3276277 *3 (D.D.C. Aug. 9, 2005)'(holding WMATA is not subject to
the DCWPA).
2. Federal Railroad Safety Act of 2007 Claim
Plaintiff’s new claim under the FRSA fails for the same reasons as his claims
under the NTSSA. When it comes to filing complaints for violations under the FRSA, the
FRSA has the exact same structure as the NTSSA_that is, a complainant must first file
his complaint with the Department of Labor and judicial review in the federal district
courts is limited to (l) suits to enforce final orders of the Department, or (2) de novo
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