UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) OLIVER WHITE, ) ) ) Plaintiff, ) ) v. ) Civil Action No. 17-cv-0735 (TSC) ) WASHINGTON METROPOLITAN ) AREA TRANSIT AUTHORITY ) ) and ) ) METRO TRANSIT POLICE ) DEPARTMENT ) ) )

MEMORANDUM OPINION

Plaintiff Oliver White alleges that Defendants violated the Americans with Disabilities Act

(“ADA”) and Americans with Disabilities Act Amendments Act (“ADAAA”),

,

and the District of Columbia Human Rights Act (“DCHRA”). (ECF No. 1-1). Defendants have

moved for dismissal of all claims under Fed. R. Civ. P. 12(b)(1), alleging that Defendant

Washington Metropolitan Area Transit Authority (“WMATA”) is entitled to sovereign immunity

and that Defendant Metro Transit Police Department (“MTPD”) is merely a department within

WMATA, not a separate legal entity. Plaintiff has also filed a motion for leave to amend his

complaint to add claims for hostile work environment and retaliation under Title VII of the Civil

Rights Act of 1964 (“Title VII”), which WMATA opposes. For the reasons stated below,

Plaintiff’s motion for leave to amend his complaint is GRANTED. Defendants’ motion to dismiss

1 for lack of subject matter jurisdiction is also GRANTED as to Plaintiff’s claims under the

ADA/ADAAA, the DCHRA, and § 1983.

I. BACKGROUND

Plaintiff has been employed as an officer at MTPD since 2005. Plaintiff suffers from a

medical condition characterized by low blood circulation and impotence. He takes prescription

medication—including injectable medication—for his ailment. (Compl. ¶¶10–13, 18 ECF No. 1-

1). On October 25, 2015, MTPD placed Plaintiff under investigation following an allegation of

steroid use. (ECF No. 1-1 ¶14). Plaintiff denied the allegation at an interview with representatives

of MTPD’s Office of Professional Responsibilities and Inspections, informing them that he only

used a prescribed injectable medication. (ECF No. 1-1 ¶¶15–18). After the interview, MTPD

required Plaintiff to undergo a fitness for duty and psychological evaluation and to meet with a

counselor. (ECF No. 1-1 ¶23). On December 19, 2015, Plaintiff was required to undergo a random

urinalysis, and on December 28, 2015, he was cleared of the allegation of steroid use. (ECF No.

1-1 ¶¶25–26). He did however receive a 15-day suspension for failing to report his use of

prescription drugs, as required by MTPD policy. (ECF No. 1-1 ¶¶27–28). Plaintiff alleges that he

suffered from esophagitis caused by stress during this period. (ECF No. 1-1 ¶31).

Upon Plaintiff’s return to work on January 26, 2016, MTPD required him to undergo a

random urinalysis, and another on May 14, 2016. (ECF No. 1-1 ¶¶32, 36). Plaintiff further alleges

that his supervisor acknowledged receipt of a discrimination charge from the EEOC on March 30,

2016. (ECF No. 1-1 ¶35). He also alleges that on one occasion his supervisors told him that they

were going to “fuck with [him] bad.” (ECF No. 1-1 ¶34). Plaintiff filed the original complaint in

2 the Superior Court of the District Columbia on March 8, 2017. (ECF No. 1 at 1). The case was

removed to federal court. (ECF No. 4).

II. STANDARD OF REVIEW

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) “presents a threshold

challenge to the court’s jurisdiction.” Haase v. Sessions,

(D.C. Cir. 1987). The

court “presume[s] that a cause lies outside [its] limited jurisdiction,” Kokkonen v. Guardian Life

Ins. Co.,

(1994), and accordingly, “the plaintiff bears the burden of establishing

the court’s jurisdiction by a preponderance of the evidence.” Morrow v. United States,

(D.D.C. 2010) (citing Moore v. Bush,

(D.D.C. 2008)).

While a court is not limited to the factual allegations in the complaint when ruling upon a motion

to dismiss for lack of subject matter jurisdiction, see Jerome Stevens Pharms., Inc. v. FDA,

(D.C. Cir. 2005), it must accept those allegations as true. Attias v. Carefirst, Inc.,

(2017) (noting that consideration of a 12(b)(1) motion to dismiss “start[s] with

the familiar principle that the factual allegations in the complaint are assumed to be true”).

III. DISCUSSION

The amendment of pleadings is governed by Rule 15(a), which provides that “[t]he court

should freely give leave [to amend] when justice so requires,” Fed. R. Civ. P. 15(a)(2), and

instructs district courts “to determine the propriety of amendment on a case by case basis.” Harris

v. Sec’y, United States Dep’t of Veterans Affairs,

(D.C. Cir. 1997). Justifications

for denial of leave may include undue delay, bad faith, repeated failure to cure deficiencies in a

pleading, undue prejudice to the opposing party, and futility of amendment.

at 344 (citing

Foman v. Davis,

(1962)). The non-movant typically bears the burden of

3 persuading the court to deny leave to amend. Nwachukwu v. Karl,

(D.D.C.

2004). Here, WMATA has not (1) identified any evidence of bad faith, or (2) provided any specific

contentions to support their claim that amendment would be futile. Moreover, since the court will

afford WMATA the opportunity to fully brief the newly added claims via an additional motion to

dismiss, there is also no showing of prejudice at this early procedural stage. Accordingly, the court

grants Plaintiff’s motion for leave to amend the complaint.

In addition to the two new claims under Title VII, Plaintiff’s Amended Complaint alleges

six claims against WMATA: two (Counts IV and VI) under the DCHRA; three (Count I for

declaratory judgment, Count III for money damages, and Count V for money damages) under the

ADA/ADAAA; and one (Count II) under

For the reasons set forth below, the

court finds that WMATA is (1) not subject to claims brought pursuant to state law, (2) immune

from claims brought under the ADA/ADAAA, and (3) not a “person” within the meaning of §

1983 and therefore ineligible to be sued under that statute. The court also finds that since MTPD

is a department within WMATA and not a separate entity, it cannot be sued separately. Cf. Fields

v. D.C. Dep’t of Corr.,

(D.D.C. 1992) (“It is well established, however, that

agencies and departments within the District of Columbia government are not suable as separate

entities.”) (citing Byrd v. District of Columbia,

,

at *7

(D.D.C. Sept. 12, 1991); Roberson v. District of Columbia Board of Higher Education,

, 31 n.4 (D.C. 1976)); see also Brown v. Metro Transit Police Dep’t,

, 146

1 Plaintiff’s filings regarding his Amended Complaint appear to equivocate as to whether he maintains a claim under

or asserts a new claim under

. Compare (ECF No. 8-4 at 6) with (ECF No. 8-2 at 6). This opinion therefore addresses claims brought under either statute.

4 (D.D.C.), aff’d,

(D.C. Cir. 2016) (construing suit against MTPD as suit against

WMATA). Accordingly, all claims against MTPD are dismissed as a matter of law.

A. DCHRA CLAIMS

WMATA is the creation of an interstate compact (“the Compact”) signed by Maryland,

Virginia, and the District of Columbia. It is therefore an instrumentality of those jurisdictions.

Ndzerre v. Wash. Metro Area Transit Auth.,

(D.D.C. 2016); see also

Sanders v. Wash. Metro Area Transit Auth.,

(D.C. Cir. 1987). As other courts

in this district have noted, the Compact itself clarifies that “one signatory may not impose its

legislative enactment upon the entity created by it without the express consent of the other

signatories and the Congress of the United States.” Lucero-Nelson v. Wash. Metro. Area Transit

Auth.,

(D.D.C. 1998) (citing OPIEU, Local 2 v. WMATA, 724 133, 139 (D.C.

Cir. 1983)); see also D.C. Code § 9–1107.01 (2017) (noting that WMATA is “exempt from all

laws, rules, regulations and orders of the signatories” in relation to transit services rendered).

Plaintiff’s Amended Complaint contains no indication that Maryland and Virginia have consented

to suit under the DCHRA. Taylor v. WMATA,

(D.D.C. 2000) (“It is well

established that WMATA is not subject to the DCHRA because WMATA is an interstate compact

agency and instrumentality of three separate jurisdictions.”); Sampson v. WMATA, No. Civ. A. No.

04-1767,

, at *3 (D.D.C. 2005) (“Because there is no indication that Virginia

and Maryland have consented to the application of District of Columbia law… [it] does not apply

to WMATA.”). Accordingly, Plaintiff’s DCHRA claims are dismissed for lack of subject matter

jurisdiction.

5 B. ADA CLAIMS

1. Money Damages

The D.C. Circuit has consistently held that WMATA is immune from suit under the

Eleventh Amendment because the Compact signatories conferred their respective immunities upon

it. Barbour v. Wash. Metro. Area Transit Auth.,

(D.C. Cir. 2004) (“WMATA,

a mass transit system for the District of Columbia and surrounding suburban areas, was created by

an interstate compact among Maryland, Virginia, and the District of Columbia, and enjoys the

Eleventh Amendment immunity of the two signatory states.”); Jones v. Wash. Metro Area Transit

Auth.,

(D.C. Cir. 2000) (“We have consistently recognized that in signing the

WMATA Compact, Virginia and Maryland each conferred its immunity upon WMATA, which

therefore enjoys, to the same extent as each state, immunity from suit in federal court based on its

performance of governmental functions.”); Morris v. WMATA,

, 219–20 (D.C. Cir.

1986) (“WMATA’s sovereign immunity exists because the signatories have successfully conferred

their respective sovereign immunities upon it.”).

There are two circumstances in which a private individual can sue a state despite Eleventh

Amendment immunity: (1) where a state consents to suit, thus waiving its immunity; or (2) where

Congress abrogates the immunity by exercising its enforcement power under Section 5 of the

Fourteenth Amendment. See College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense

Bd.,

(1999) (citing Fitzpatrick v. Bitzer,

(1976); Clark v. Barnard,

, 447–48 (1883)). There is no indication of waiver in this case. Moreover, the

Supreme Court ruled in Board of Trustees v. Garrett,

(2001) that Congress’s attempt

to abrogate states’ sovereign immunity in Title I of the ADA exceeded Congress’s authority under

6 Section 5.

, 374 & n.9. Thus, private individuals may not recover money damages from

a state in federal court under Title I of the ADA. See id.; Barbour

(noting that

while the Court in Tennessee v. Lane upheld the abrogation in Title II of the Americans with

Disabilities Act, the Court’s prior decision in Garrett, “that Congress exceeded its enforcement

power under Title I of the ADA by subjecting states to suits for money damages for disability

discrimination in employment,” remained in effect).

Title I of the ADA addresses discrimination against the disabled in employment, while

Title II addresses discrimination against the disabled in public services, programs, and activities.

Barbour,

. While Plaintiff does not specify the Title under which he seeks relief,

the substance of the allegations makes clear that the ADA claim concerns Title I’s prohibition on

disability discrimination in employment. Accordingly, Plaintiff’s suit for money damages under

the ADA is barred by WMATA’s Eleventh Amendment immunity,

and is therefore dismissed

for lack of subject matter jurisdiction.

2. Declaratory Relief

While suits against state officials seeking prospective relief for violations of federal law

may be permissible in federal court, see Ex Parte Young,

, 155–57 (1908); Edelman

v. Jordan,

, 664–68 (1974) (distinguishing between prospective and retroactive relief

in determining whether suit nominally against individual officials is in fact against the state);

Garrett,

n. 9, suits against a state (or an arm thereof) in its own right are barred,

regardless of the type of relief sought. Seminole Tribe of Florida v. Florida,

(1996) (“[W]e have often made it clear that the relief sought by a plaintiff suing a State is irrelevant

to the question whether the suit is barred by the Eleventh Amendment.”) (citing Cory v. White,

7

(1982) (“It would be a novel proposition indeed that the Eleventh Amendment

does not bar a suit to enjoin the State itself simply because no money judgment is sought.”)).

WMATA is an arm of the state, and Plaintiff has sued WMATA in its own right, naming no

individual officials. Accordingly, Plaintiff’s request for a declaratory judgment under the ADA is

barred by WMATA’s Eleventh Amendment immunity, and is therefore dismissed for lack of

subject matter jurisdiction.

C. § 1983 CLAIM

It is well established that neither states nor official state actors qualify as “persons” within

the meaning of

. Will v. Mich. Dep’t of State Police,

(1989).

Since WMATA is an arm of the state, it does not qualify as a “person” within the meaning of §

1983, and cannot be sued under that statute. See Disability Rights Council of Greater Washington

v. Washington Metro. Area Transit Auth.,

(D.D.C. 2006) (dismissing § 1983

count because WMATA is not a “person” within meaning of the statute); Lucero-Nelson v.

Washington Metro. Area Transit Auth.,

(D.D.C. 1998) (“[T]he Court is

persuaded that as an arm of the state WMATA is not a ‘person’ within the meaning of the statute.”);

see also Cutchin v. D.C.,

(D.D.C. 2016) (same); Tapp v. Washington

Metro. Area Transit Auth., No. 15-CV-0768 (KBJ),

, at *7 (D.D.C. Sept. 30,

2016) (same). Furthermore, to the extent that Plaintiff’s Amended Complaint replaces or

supplements his claim under § 1983 with a claim under

, that claim is precluded

for the same reasons. Thompson v. Wash. Metro. Area Transit Auth., No. 01-7026,

, at *1 (D.C. Cir. Aug. 9, 2001) (affirming dismissal of § 1981 claims against WMATA

8 due to Eleventh Amendment immunity) (citing Johnson v. Univ. of Cincinnati,

(6th

Cir.), cert denied,

(2000)).

IV. CONCLUSION

For the foregoing reasons, Plaintiff’s motion to amend the complaint (ECF No. 8) is hereby

GRANTED. Defendants’ motion to dismiss for lack of subject matter jurisdiction is also

GRANTED as to all claims arising under the DCHRA, Title I of the ADA/ADAAA, and

and/or § 1981. Defendants will have the opportunity to file and brief an additional motion

to dismiss Plaintiff’s newly added claims under Title VII.

Date: March 31, 2018

Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge

9