UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

GALEN PENDERGRASS,

Plaintiff,

v. Civil Action No. 19-3331 (EGS)

WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY,

Defendant.

MEMORANDUM OPINION

I. Introduction

Plaintiff Galen Pendergrass (“Mr. Pendergrass” or

“Plaintiff”), proceeding pro se, brings this action against

Defendant Washington Metropolitan Area Transit Authority

(“WMATA”) under Title VII of the Civil Rights Act of 1964

(“Title VII”), 42 U.S.C. § 2000e, et seq.; the District of

Columbia Human Rights Act (“DCHRA”),

, et

seq.; the Fair Credit Reporting Act (“FCRA”),

,

et seq.; the Federal Transit Act (“FTA”),

, et

seq.; and the WMATA Background Screening Policy/Instruction (PI)

7.2.3/2 regarding Criminal Background Checks (“CBC Policy”). Mr.

Pendergrass alleges that by denying him employment, WMATA

discriminated against him in its hiring practices based on his

race and retaliated against him for his involvement in a prior

1 lawsuit against WMATA regarding its CBC Policy. See Compl., ECF

No. 1 at 1-2 ¶¶ 1-2, 13-14 ¶¶ 29-34. 1 Pending before the Court is

WMATA’s partial Motion to Dismiss, in which it moves to dismiss

all but Mr. Pendergrass’ Title VII claims for lack of

jurisdiction and failure to state a claim. See Def.’s Mot., ECF

No. 7. Upon careful consideration of Mr. Pendergrass’ Complaint,

the pending motion, the opposition, the reply thereto, and the

applicable law, the Court GRANTS WMATA’s Motion to Dismiss.

II. Background

A. WMATA’s Criminal Background Checks Policy

WMATA, the primary public transit agency for the

Washington, D.C. metropolitan area, was created by a compact

enacted by Congress and to which the District of Columbia, the

Commonwealth of Virginia, and the State of Maryland are

signatories. Jones v. WMATA,

(D.C. Cir. 2000);

see also D.C. CODE ANN. § 9-1107.01 (codifying WMATA’s interstate

compact for D.C.). In signing the interstate compact, “Maryland,

Virginia, and the District of Columbia conferred upon WMATA

their respective sovereign immunities.” Beebe v. WMATA,

(D.C. Cir. 1997). “The Compact confers broad powers

on WMATA to ‘[c]reate and abolish offices, employments and

1 When citing electronic filings throughout this Memorandum Opinion, the Court cites to the ECF header page number, not the original page number of the filed document. 2 positions . . . [and] provide for the qualification,

appointment, [and] removal . . . of its . . . employees, . . .

[and] [e]stablish, in its discretion, a personnel system based

on merit and fitness.’”

(quoting D.C. CODE ANN. § 9-

1107.01(12)(g)-(h)). Today, WMATA is “[r]esponsible for creating

a coordinated public transportation system for the region,” and

“operates an extensive Metrobus and Metrorail system running

throughout” D.C., Maryland, and Virginia. Id. at 1285-86.

WMATA has a history of litigation over its CBC Policy,

notably a large class action lawsuit filed in 2014, see Compl.,

ECF No. 1 at 6 ¶ 3; alleging that the 2011 version of its CBC

Policy (the “2011 Policy”) “had a disparate impact on African

Americans in violation of Title VII . . . , required rigid

application of its screening standards, and did not provide for

individualized assessment of disqualified applicants[,]” Def.’s

Mot. for Recons. of Consolidation Order, ECF No. 19 at 2; see

generally Little, et al. v. WMATA, Case No. 14-1289 (RMC) (the

“Little Class Action”). While the Little Class Action was

pending, WMATA adopted and agreed to maintain a new CBC Policy

replacing the 2011 Policy, which became effective on July 10,

2017 (the “2017 Policy”). Def.’s Mot. for Recons. of

Consolidation Order, ECF No. 19 at 2-3. The 2017 Policy contains

a new set of criteria for determining “what types of criminal

offenses disqualif[y] an applicant for employment in a

3 particular position,” id. at 3; and includes a process providing

“for individualized assessments after an applicant fails the

background check rather than presumptive disqualification” based

on an applicant’s prior conviction(s), Little v. WMATA,

(D.D.C. 2018). Specifically, if applicants

believe the adverse CBC information is “not job related and

consistent with business necessity,” they can provide additional

information or documentation to explain “any mitigating factors

or extenuating circumstances for consideration by WMATA.” Pl.’s

Resp., ECF No. 9 at 4. Following WMATA’s adoption of the 2017

Policy, the Little Class Action settled in 2018, allowing WMATA

to proceed forward with operations under its updated CBC Policy.

See Little,

; Compl., ECF No. 1 at 6 ¶ 3.

B. Factual Background

The following facts reflect the allegations in the

Complaint and the documents incorporated by reference therein, 2

2 “In determining whether a complaint fails to state a claim, [the Court] may consider only the facts alleged in the complaint, any documents either attached to or incorporated in the complaint and matters of which [the Court] may take judicial notice.” EEOC v. St. Francis Xavier Parochial Sch.,

(D.C. Cir. 1997). Here, Mr. Pendergrass has directly incorporated various documents into the body of his Complaint, which the Court considers for the purposes of this motion. See Compl., ECF No. 1 at 3-5, 8-9, 19. However, the Complaint also references several exhibits, described as Exhibits A to H, see id. at 10-11; but the Court cannot consider them because there are no exhibits actually appended to Mr. Pendergrass’ Complaint. Instead, in opposing WMATA’s Motion to Dismiss, Mr. Pendergrass has appended different exhibits to his response, see Exs. 1-14, 4 which the Court assumes are true for the purposes of deciding

this motion and construes in Mr. Pendergrass’ favor. See Baird

v. Gotbaum,

, 169 n.2 (D.C. Cir. 2015).

Mr. Pendergrass, an African American male, applied for a

position as a Bus Operator with WMATA in 2013. Compl., ECF No. 1

at 6 ¶ 3. He was given a contingent offer of employment that was

later rescinded following a criminal background check revealing

a “non-violent victimless firearm charge” that occurred in 2000.

at 6 ¶ 3, 17 ¶ 47; Joint Status Report, ECF No. 18 at 6. In

2015 in this District Court (the “2015 Case”), Mr. Pendergrass

sued WMATA challenging its 2011 Policy and his disqualification

from employment because of his prior criminal conviction.

Compl., ECF No. 1 at 6 ¶ 3; see Compl., Pendergrass v. WMATA,

No. 15-98 (RMC/EGS) (D.D.C. Jan. 21, 2015), ECF No. 1 at 3-4 ¶

6. This case was later consolidated with the Little Class

Action, during which Mr. Pendergrass “gave crucial testimony and

evidence on multiple occasions that led to the class action

certification.” Compl., ECF No. 1 at 6 ¶ 3, 13 ¶ 29; see also

Little,

(“The Court heard and considered

ECF No. 9-1 at 1-52; but WMATA argues that they “should not be considered for purposes of this motion,” Def.’s Reply, ECF No. 11 at 2 n.2. The Court agrees, as it “generally cannot consider matters beyond the pleadings at the motion-to-dismiss stage,” Patrick v. Dist. of Columbia,

(D.D.C. 2015); “without converting the motion to dismiss into one for summary judgment,” Holston v. Yellen, No. 20-3533 (EGS),

, at *5 (D.D.C. Sept. 20, 2022). 5 argument from . . . the following individuals who elected to

appear to voice their support for, or objection to, the

Settlement: Galen Pendergrass . . . . ”). Although the Little

Class Action settled in 2018, Mr. Pendergrass elected to opt out

of the class, thereby forgoing any monetary settlement he would

have received. Def.’s Mot. for Recons. of Consolidation Order,

ECF No. 19 at 4; Compl., ECF No. 1 at 6 ¶ 3.

Instead, Mr. Pendergrass reapplied for employment with

WMATA as a Bus Operator in the fall of 2017, after the 2017

Policy had gone into effect. Compl., ECF No. 1 at 6 ¶ 3, 14-15

¶¶ 36-38. In October 2017, he was invited for an interview,

during which he received an offer of employment contingent on

his successful completion of a background check by First Choice

Background Screening (“FCBS”).

at 7 ¶ 8, 15 ¶ 40. On

November 1, 2017, Mr. Pendergrass was notified that his

employment offer had been rescinded due to his prior conviction

for a non-violent weapons offense, which he alleges “is the only

non-violent offense calling for a life time exclusion to

employment as a Bus Operator in WMATA in the 2017 Policy.”

at 6 ¶ 3, 15 ¶ 40. On November 6, 2017, Mr. Pendergrass

contacted WMATA by email to ask for instructions on how to

request an individualized assessment of the denial of his

employment, per the 2017 CBC Policy, and on November 20, 2017,

he received an individualized assessment packet from FCBS with

6 instructions on how to complete the request, including that he

had seven business days from receipt of the package to submit

his request.

at 7 ¶ 8, 15 ¶ 40. On November 28, 2017, WMATA

emailed Mr. Pendergrass to inform him that his request for

individualized assessment had been denied.

at 15 ¶ 41. Mr.

Pendergrass alleges that he spoke on the phone with a WMATA

representative, Ms. LaShawn Lott (“Ms. Lott”), that same day,

who told him to ignore this email denial, as it was based on his

November 6, 2017 email and “not on his actual individual

assessment request which [he] had not yet submitted.”

¶¶ 41-

42. Together, Mr. Pendergrass and Ms. Lott determined that since

he had received the individualized assessment package on

November 20, 2017 and the Thanksgiving holiday was upcoming, he

had until November 29, 2017 to file his request.

at 16 ¶ 43.

Per this deadline, Mr. Pendergrass submitted his request

for an individualized assessment on November 29, 2017 via email

and mail through the U.S. Postal Service.

at 7 ¶ 9, 16 ¶ 43.

His request consisted of “approximately 50 pages of documents

that showed why he should not be permanently excluded” from

being hired as a Bus Operator with WMATA based on his prior

conviction.

at 7 ¶ 9. Ms. Lott called Mr. Pendergrass on

December 5, 2017 to inform him that his request had been

received and would be answered.

at 7 ¶ 9, 16 ¶ 43. Although

the CBC Policy states that requests for review are to be

7 completed within thirty days from the date the Individualized

Assessment Panel receives the request,

at 10 ¶ 11; WMATA did

not respond to Mr. Pendergrass’ request until May 9, 2018,

at 13 ¶ 32; at which time it denied his request and deemed him

ineligible for employment,

at 16 ¶ 44. Mr. Pendergrass

alleges that WMATA “intentionally waited” until after the

completion of a fairness hearing approving the settlement in the

Little Class Action on April 18, 2018 “to answer and deny” his

request “just 21 days later.”

By that time, Mr. Pendergrass

had filed a charge with the U.S. Equal Employment Opportunity

Commission (“EEOC”) on December 4, 2017 and filed suit again in

this district on March 7, 2018 (the “2018 Case”) due to the

events arising out of his second attempt at employment with

WMATA.

at 10 ¶¶ 12-13, 16 ¶ 44; see Compl., Pendergrass v.

WMATA, No. 18-622 (RMC) (D.D.C. Mar. 7, 2018), ECF No. 1 at 1-3.

Mr. Pendergrass alleges that WMATA’s CBC Policy “has a

disparate impact on African-American candidates due to the

historically higher rate of criminal convictions of African

Americans.” Pendergrass v. WMATA, No. 18-622 (RMC),

, at *1 (D.D.C. Oct. 11, 2018), appeal dismissed No. 18-

7166,

(D.C. Cir. Jan. 31, 2019); see Compl., ECF

No. 1 at 1-6 ¶¶ 1-5, 10 ¶ 12, 16-18 ¶¶ 46-50 (“WMATA’s [CBC]

Policy has a discriminatory effect on African Americans.”). In

addition, Mr. Pendergrass alleges that since “he was the only

8 person who ever appeared in court and gave testimony in the

Little suit that he was intentionally singled out for

retaliation by WMATA and banned from employment.” Compl., ECF

No. 1 at 6 ¶ 3. He claims that his non-violent conviction “was

the only nonviolent conviction that called for a lifetime ban of

employment in the entire Background Screening Policy for the Bus

Operator Position [he] applied” for, and that WMATA

intentionally listed his prior conviction as a disqualifying

offense, despite it being “unrelated to the job” and

inconsistent “with business necessity,” in retaliation for him

being “the most outspoken opponent to WMATA’s previous” CBC

Policy in the Little Class Action.

at 13 ¶ 30, 14 ¶ 34.

Although Mr. Pendergrass claims that WMATA “openly acknowledges”

his prior offense as “a non-violent offense[,]” it has deemed

him “a lifetime threat to the vulnerable population consisting

of the elderly, children, disabled, etc.” despite being “well-

qualified to work for WMATA.”

at 1-2 ¶ 1, 13 ¶ 29, 16 ¶ 45.

C. Procedural Background

On December 4, 2017, Mr. Pendergrass filed a Charge of

Discrimination with the EEOC based on the revocation of his

second contingent offer of employment with WMATA and challenging

the CBC Policy as discriminatory.

at 10 ¶ 12. That same day,

the EEOC issued him a Notice of Right to Sue Letter, which he

received on December 7, 2017.

Mr. Pendergrass then filed his

9 second suit pertaining to WMATA’s CBC Policy in this district on

March 7, 2018, alleging claims under Title VII, the DCHRA, the

FCRA, and WMATA’s CBC Policy 7.2.3/2. Pendergrass,

, at *2. WMATA moved to dismiss all of those claims

except those arising under Title VII, and another judge from

this Court presiding over the case granted WMATA’s partial

motion to dismiss, thus allowing Mr. Pendergrass’ Title VII

claims in the 2018 Case to proceed.

. However, on

February 8, 2019, this District Court dismissed Mr. Pendergrass’

2018 complaint without prejudice and remanded his claims back to

the EEOC because the EEOC had prematurely issued his right-to-

sue letter and Mr. Pendergrass had filed suit only 93 days after

filing his EEOC charge, which was 87 days short of the requisite

180-day waiting period to file suit in federal court after

filing a charge with the EEOC. Order, Pendergrass v. WMATA, No.

18-622 (RMC) (D.D.C. Feb. 8, 2019), ECF No. 28 at 1-3; see also

Martini v. Fed. Nat’l Mortg. Ass’n,

(D.C.

Cir. 1999) (finding that Title VII requires plaintiffs to wait

at least 180 days “after filing charges with the EEOC before

they may sue in federal court[,]” even if the EEOC provided an

early right-to-sue letter prior to the expiration of the 180-day

period); 42 U.S.C. 2000e-5(f)(1). This District Court stated

that Mr. Pendergrass could file a new complaint “only after the

[EEOC] ha[d] attempted to resolve his charge for an additional

10 177 days[.]” Order, Pendergrass v. WMATA, No. 18-622 (RMC)

(D.D.C. Feb. 8, 2019), ECF No. 28 at 2.

Following the dismissal of his 2018 Case, Mr. Pendergrass

visited the EEOC in Washington, D.C. on February 25, 2019 to

inform it that his case had been remanded back to the EEOC for

further consideration. Compl., ECF No. 1 at 11 ¶ 15. The EEOC

instructed him to provide a copy of the court order, which he

did on February 27, 2019. Id. ¶¶ 15-16. On March 21, 2019, he

received a letter from the EEOC stating that it would not reopen

the investigation of his Charge of Discrimination. Id. ¶ 17.

Several weeks later, on April 19, 2019, Mr. Pendergrass returned

to the EEOC to submit an appeal letter. Id. ¶ 18. Then, on

August 7, 2019, the 180-day waiting period elapsed from the

February 8, 2019 dismissal of his 2018 Case, and several months

later, on October 2, 2019, Mr. Pendergrass submitted a request

to the EEOC for a renewed right-to-sue letter, an inquiry to

which the EEOC has not responded. Id. ¶¶ 19-20. Mr. Pendergrass

alleges that all “prerequisites to” filing this suit “have been

fulfilled[,]” id. ¶ 21; and on November 5, 2019, he filed the

instant action asserting claims under Title VII, the DCHRA, the

FCRA, the FTA, and WMATA’s CBC Policy 7.2.3/2, see Compl., ECF

No. 1 at 1, 20-24. He seeks declaratory and injunctive relief,

as well as remedial relief and damages to compensate him for

“the loss he has suffered as a result of WMATA’s discriminatory

11 conduct[,]” and any additional relief the Court deems proper.

Id. at 24-25.

On January 13, 2020, WMATA moved, pursuant to Federal Rule

of Civil Procedure 12(b)(1) and 12(b)(6), to dismiss all of Mr.

Pendergrass’ claims except for those arising under Title VII.

See Def.’s Mot., ECF No. 7 at 1-3; Def.’s Reply, ECF No. 11 at 1

(moving for dismissal of Mr. Pendergrass’ claims based on

“rights secured by” the FCRA, DCHRA, FTA, and WMATA’s CBC

Policy). Mr. Pendergrass filed his opposition on February 4,

2020, see Pl.’s Resp., ECF No. 9 at 1; and WMATA filed its reply

on February 19, 2020, see Def.’s Reply, ECF No. 11 at 1. After

briefing was complete on WMATA’s partial Motion to Dismiss, the

Court consolidated this case with Mr. Pendergrass’ pending 2015

Case, No. 15-98 (EGS), and referred the consolidated cases to

the District Court’s mediation program, thereby staying

proceedings. Min. Order (Nov. 19, 2021); Consolidation Order

(Nov. 30, 2021). After an unsuccessful attempt at mediation, see

Joint Status Report of Mediation, ECF No. 15 at 1; WMATA filed a

motion for reconsideration, requesting that “the Court rescind

[its] prior consolidation order and enter a new order directing

that Plaintiff’s [2015 and 2019] cases be tried separately[,]”

Def.’s Mot. for Recons. of Consolidation Order, ECF No. 19 at 2.

On August 3, 2023, the Court granted this motion for good cause

shown and lack of opposition by Mr. Pendergrass, and it vacated

12 its November 19, 2021 Minute Order, thus reopening Case No. 15-

98 (EGS) so that the 2015 Case can be separately litigated from

the instant 2019 action. See Min. Order (Aug. 3, 2023).

WMATA’s Motion to Dismiss in Part is now ripe and ready for

the Court’s adjudication.

III. Standard of Review

A. Rule 12(b)(1)—Subject-Matter Jurisdiction

“A federal district court may only hear a claim over which

[it] has subject-matter jurisdiction; therefore, a Rule 12(b)(1)

motion for dismissal is a threshold challenge to a court’s

jurisdiction.” Gregorio v. Hoover,

(D.D.C. 2017) (citation omitted). To survive a Rule 12(b)(1)

motion, the plaintiff bears the burden of establishing that the

court has jurisdiction by a preponderance of the evidence. Moran

v. U.S. Capitol Police Bd.,

(D.D.C.

2011) (citing Lujan v. Defs. of Wildlife,

,

,

(1992)). “Because Rule 12(b)(1)

concerns a court’s ability to hear a particular claim, the court

must scrutinize the plaintiff’s allegations more closely when

considering a motion to dismiss pursuant to Rule 12(b)(1) than

it would under a motion to dismiss pursuant to Rule 12(b)(6).”

Schmidt v. U.S. Capitol Police Bd.,

(D.D.C. 2011). In so doing, the court must accept as true all of

the factual allegations in the complaint and draw all reasonable

13 inferences in the plaintiff’s favor, but the court need not

“accept inferences unsupported by the facts alleged or legal

conclusions that are cast as factual allegations.” Rann v. Chao,

(D.D.C. 2001).

In reviewing a motion to dismiss pursuant to Rule 12(b)(1),

“the court need not limit itself to the allegations of the

complaint.”

(citing Hohri v. United States,

(D.C. Cir. 1986), vacated on other grounds,

,

,

(1987)). Rather, the court “may

consider such materials outside the pleadings as it deems

appropriate to resolve the question whether it has jurisdiction

to hear the case.” Scolaro v. Dist. of Columbia Bd. of Elections

& Ethics,

(D.D.C. 2000); see also Jerome

Stevens Pharms., Inc. v. FDA,

(D.C. Cir.

2005). “Faced with motions to dismiss under Rule 12(b)(1) and

Rule 12(b)(6), a court should first consider the Rule 12(b)(1)

motion because [o]nce a court determines that it lacks subject

matter jurisdiction, it can proceed no further.” Ctr. for

Biological Diversity v. Jackson,

(D.D.C.

2011) (citations and internal quotation marks omitted).

B. Rule 12(b)(6)—Failure to State a Claim

A motion to dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(6) “tests the legal sufficiency of a

complaint.” Browning v. Clinton,

(D.C. Cir.

14 2002). A complaint must contain “a short and plain statement of

the claim showing that the pleader is entitled to relief, in

order to give the defendant fair notice of what the . . . claim

is and the grounds upon which it rests[.]” Bell Atl. Corp. v.

Twombly,

,

,

(2007) (citation and internal quotation marks omitted).

Despite this liberal pleading standard, to survive a motion

to dismiss, “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,

,

, 173 L. Ed. 2d. 868 (2009) (quoting Twombly,

). A claim is facially plausible when the facts pled in the

complaint allow the court “to draw the reasonable inference that

the defendant is liable for the misconduct alleged.”

The

standard does not amount to a “probability requirement,” but

requires “more than a sheer possibility that a defendant has

acted unlawfully.”

“[W]hen ruling on a defendant’s motion to dismiss [pursuant

to Rule 12(b)(6)], a judge must accept as true all of the

factual allegations contained in the complaint.” Atherton v.

Dist. of Columbia Off. of the Mayor,

(D.C.

Cir. 2009) (citation omitted); and the court must give the

plaintiff “the benefit of all inferences that can be derived

from the facts alleged[,]” Kowal v. MCI Commc'ns Corp.,

(D.C. Cir. 1994). Further, “[a] pro se complaint is

entitled to liberal construction.” Washington v. Geren,

(D.D.C. 2009) (citation omitted). However, the

court may not accept as true “the plaintiff’s legal conclusions

or inferences that are unsupported by the facts alleged.” Ralls

Corp. v. Comm. on Foreign Inv. in the U.S.,

(D.C. Cir. 2014); see also Papasan v. Allain,

,

,

(1986) (“[Courts] are not

bound to accept as true a legal conclusion couched as a factual

allegation.”).

IV. Analysis

WMATA advances four arguments for dismissal under Rules

12(b)(1) and 12(b)(6). See Def.’s Mem., ECF No. 7-1 at 2-7.

First, WMATA argues that its sovereign immunity under the

Eleventh Amendment to the U.S. Constitution mandates dismissal

of Mr. Pendergrass’ FCRA claims. See id. at 3-4. Second, WMATA

argues that its status as an “interstate compact agency”

requires dismissal of Mr. Pendergrass’ DCHRA claims. See id. at

4-6. Third, WMATA contends that Mr. Pendergrass’ claims under

the FTA are “deficient as a matter of law” because the FTA does

not contain a private right of action. See id. at 6-7. Finally,

“[t]o the extent Plaintiff has asserted a claim based on the CBC

Policy itself,” WMATA argues that such a claim “fails to state a

claim and/or is barred by WMATA’s Eleventh Amendment immunity.”

16 Def.’s Mot., ECF No. 7 at 2 ¶ 4. Thus, WMATA contends that only

Mr. Pendergrass’ Title VII claims should proceed. Id. at 1, 3 ¶

6; Def.’s Mem., ECF No. 7-1 at 7-8.

WMATA further argues that “[t]his lawsuit reasserts, in a

re-packaged format, the same challenge to [its] rejection of

Plaintiff’s 2017 application for employment that was initially

the subject of his complaint in” the 2018 Case. Def.’s Mem., ECF

No. 7-1 at 1. WMATA alleges that Mr. Pendergrass’ Complaint in

the instant case makes claims “just as he asserted in the 2018

Case,” with the addition of a new claim under the FTA. Id. at 1-

2. In doing so, WMATA claims that Mr. Pendergrass has “blatantly

disregard[ed] the Court’s prior ruling in the 2018 Case”

dismissing his claims under the FCRA, DCHRA, and 2017 CBC

Policy. 3 Id. at 2. The Court therefore addresses each of WMATA’s

four arguments in turn and in close reference to this District

Court’s prior 2018 decision. See generally Pendergrass v. WMATA,

No. 18-622 (RMC),

(D.D.C. Oct. 11, 2018).

Before proceeding to the merits of those claims, the Court

notes that, as was the case in his 2018 Case, “Mr. Pendergrass

does not specifically oppose any of the arguments raised by

WMATA in its motion, but instead attempts to raise [new] claims

3 Mr. Pendergrass appears to acknowledge that he has “re- asserted” the same claims previously denied in the 2018 Case but contends that he has done so to “preserve[ the issues] for appeal[.]” Pl.’s Resp., ECF No. 9 at 2. 17 under the Federal Tort Claims Act [(“FTCA”),]”

; see

Pl.’s Resp., ECF No. 9 at 7-9; in addition to breach of contract

and negligence tort claims based on WMATA’s alleged failure to

follow the CBC Policy, see Pl.’s Resp., ECF No. 9-11; Def.’s

Reply, ECF No. 11 at 1 (“Plaintiff does not specifically address

the merits of WMATA’s arguments for dismissal of his FCRA,

[FTA], and DCHRA claims. Instead, although not among the six

specifically denominated counts asserted in his Complaint,

Plaintiff appears to contend that he can pursue a tort and/or

contract claim . . . .”). Accordingly, “Mr. Pendergrass has

waived his objections to the motion to dismiss [with regard to]

his claims under the [FCRA], DCHRA, and any ‘arising under’

WMATA’s [CBC] Policy by failing to contest it[.]” Pendergrass,

at *3; see also Hopkins v. Women’s Div., Gen.

Bd. of Glob. Ministries,

(D.D.C. 2003)

(“It is well understood in this Circuit that when a plaintiff

files an opposition to a dispositive motion and addresses only

certain arguments raised by the defendant, a court may treat

those arguments that the plaintiff failed to address as

conceded.”), aff’d,

(D.C. Cir. 2004). Nonetheless,

because Mr. Pendergrass is representing himself pro se without

the benefit of counsel, see Min. Order (Feb. 9, 2023), the Court

briefly addresses WMATA’s arguments concerning each claim, see,

e.g., Ning Ye v. Holder,

(D.D.C. 2009)

18 (affording greater latitude to pro se plaintiffs than those with

counsel or who are themselves practicing attorneys).

A. Mr. Pendergrass’ Claims Under the Fair Credit Reporting Act Must Be Dismissed Based on WMATA’s Sovereign Immunity Under the Eleventh Amendment

WMATA first argues, just as it did in moving to dismiss

Plaintiff’s 2018 complaint, that Mr. Pendergrass’ claims under

the FCRA must be dismissed because WMATA is immune from suit

under the Eleventh Amendment. Compare Def.’s Mem., ECF No. 7-1

at 3-4, with Pendergrass,

, at *3. WMATA was

created by a congressionally authorized interstate compact

between D.C., Maryland, and Virginia, Jones,

;

and in signing the compact, these three jurisdictions “conferred

upon WMATA their respective sovereign immunities[,]” Beebe,

. Therefore, WMATA can only be held liable in a

civil action “if it has [voluntarily] waived its immunity or

Congress has abrogated the immunity of the States (and therefore

WMATA), with respect to the federal law raised in the

Complaint.” Pendergrass,

, at *3; see Taylor v.

WMATA,

, 13-14 n.4 (D.D.C. 2000).

First, in regard to waiver of sovereign immunity, section

80 of the WMATA Compact “waives this immunity for torts

‘committed in the conduct of any proprietary function,’ while

retaining immunity for torts committed by its agents ‘in the

performance of a governmental function.’” Beebe,

1287 (quoting D.C. CODE ANN. § 9-1107.01(80)). The Court

concludes, as it did in Mr. Pendergrass’ 2018 Case, “that this

waiver of immunity does not waive immunity against claims under

the Fair Credit Reporting Act.” Pendergrass,

, at

*3; see Def.’s Mem., ECF No. 7-1 at 4 (“WMATA [has not]

voluntarily waived immunity to claims arising under the FCRA.”).

Second, the Court concludes, again as in the 2018 Case, “that

Congress has not abrogated the States’ immunity to claims under

the FCRA[.]” Pendergrass,

, at *3; see also Betts

v. Virginia, No. 3:06-cv-753,

, at *3 (E.D. Va.

Feb. 2, 2007) (“[T]here is no indication that Congress abrogated

the States’ Eleventh Amendment immunity when it enacted the

FCRA.”); Alexander v. Dist. Ct. of Md. for Charles Cnty., No.

2007-1647,

, at *7 n.9 (D. Md. Mar. 20, 2008)

(same conclusion). Given these two conclusions, this District

Court concluded in the 2018 Case that “[b]ecause WMATA has not

waived its immunity and Congress has not abrogated the States’

immunity,” WMATA is immune from FCRA claims and thus dismissed

Mr. Pendergrass’ claims under that Act. Pendergrass,

, at *3. WMATA argues, and the Court agrees, “[t]hat

ruling and reasoning applies equally to the present case” and

compels dismissal of Mr. Pendergrass’ present FCRA claims.

Def.’s Mem., ECF No. 7-1 at 4.

20 B. Mr. Pendergrass’ Claims Under the District of Columbia Human Rights Act Must Be Dismissed Because WMATA’s Status as an Interstate Compact Agency Makes It Not Subject to that Act

Secondly, WMATA argues, as it did in the 2018 Case, that

Mr. Pendergrass’ DCHRA claims must be dismissed because as an

entity established and governed by an interstate compact, WMATA

“is not susceptible to the individual laws of the signatory

jurisdictions unless all signatories and Congress agree.”

Compare Def.’s Mem., ECF No. 7-1 at 4-5, with Pendergrass,

, at *4. It is settled that “pursuant to the WMATA

Compact, one signatory may not impose its legislative enactment

upon the entity created by it without the express consent of the

other signatories and of the Congress of the United States.”

Lucero-Nelson v. WMATA,

(D.D.C. 1998); see

also C.T. Hellmuth & Assocs., Inc. v. WMATA,

(D. Md. 1976) (“[O]ne party [to an interstate compact] may

not enact legislation which would impose burdens upon the

compact absence the concurrence of the other signatories.”).

“Therefore, for WMATA to be subject to the requirements of the

DCHRA, Maryland, Virginia, and Congress would have to give

express permission under the Compact.” Pendergrass,

, at *4. However, “Mr. Pendergrass does not allege that

Virginia and Maryland—or the Congress—have consented to the

application of the DCHRA to WMATA,” nor has WMATA alleged that

21 it has so consented.

And caselaw indicates that “[i]t is

well-established that WMATA is not subject to the DCHRA” as “an

interstate compact agency and instrumentality of three separate

jurisdictions.” Taylor,

; see also Lucero-

Nelson,

(“There is ample precedent holding

that WMATA is not subject to the [DCHRA.]”). Therefore, the

Court concludes, as did this District Court in 2018, that “WMATA

is not subject to the DCHRA[,]” and it dismisses Plaintiff’s

claims under that Act. Pendergrass,

, at *4.

C. Mr. Pendergrass’ Claims Under the Federal Transit Act Must Be Dismissed Because That Act Does Not Create a Private Right of Action

Thirdly, WMATA argues that Mr. Pendergrass’ claims under

the FTA 4 must fail “as a matter of law” because the FTA does not

grant a private right of action to enforce its nondiscrimination

provisions. See Def.’s Mem., ECF No. 7-1 at 6-7. Although Mr.

Pendergrass did not raise an FTA claim in the 2018 Case, he

still fails in the instant action to “address the caselaw and

arguments presented by WMATA demonstrating [that] there is no

private right of action under” that Act. Def.’s Reply, ECF No.

11 at 3. For example, WMATA points to another federal district

4 Mr. Pendergrass’ Complaint mistakenly raises discrimination claims on the basis of race under

(b), which discusses labor standards under the FTA; however, the nondiscrimination section of that Act is

. See Compl., ECF No. 1 at 23-24 (Count VI). 22 court’s opinion assessing the nondiscrimination provisions in

of the FTA and its conclusion that no private

right of action exists. See Def.’s Mem., ECF No. 7-1 at 6

(citing Hampton v. Utah Transit Auth., No. 2:16-cv-01282,

, at *4-5 (D. Utah Sept. 7, 2017)). Caselaw supports

WMATA’s position and establishes that the FTA, formerly known as

the Urban Mass Transportation (“UMT”) Act, “does not create a

private right of action, and none can be implied” based on the

language in the statute. Blue Bird Coach Lines, Inc. v. Linton,

(D.D.C. 1999); Am. Bus Ass’n v. Rogoff,

(D.C. Cir. 2011); cf. A.B.C. Bus Lines, Inc.

v. Urb. Mass Transp. Admin.,

(1st Cir.

1987) (“Congress did not intend to create a private cause of

action when it enacted the [UMT] Act.”); Razorback Cab of Ft.

Smith, Inc. v. Flowers,

(8th Cir. 1997) (per

curiam) (holding that the language of the UMT Act “does not

indicate any congressional intent to confer . . . a private

right of action”). Instead, the FTA vests authority in the

Secretary of Transportation to ensure compliance with the Act’s

nondiscrimination provisions and “explicitly limits any civil

enforcement of [those] provision[s] to an action brought by the

Attorney General.” Hampton,

, at *4-5; see

(c)-(e). Accordingly, the Court dismisses Mr.

Pendergrass’ claims under the FTA.

23 D. Mr. Pendergrass’ Breach of Contract and Tort Claims Based Directly on WMATA’s CBC Policy Must Be Dismissed for Failure to State a Claim

Lastly, WMATA contends that “[t]o the extent” Mr.

Pendergrass is asserting claims based on “rights secured by

WMATA’s [CBC P]olicy Instruction 7.2.3/2[,]” including contract

and tort claims, these other claims based on the Policy itself

must be dismissed “on the same grounds on which the Court

dismissed [those] claim[s] in the 2018 Case[,]” Def.’s Mem., ECF

No. 7-1 at 8 n.5; including for failure to state a claim and/or

being barred by WMATA’s immunity under the Eleventh Amendment,

Def.’s Mot., ECF No. 7 at 2 ¶ 4. While Mr. Pendergrass’

Complaint does not specifically assert a separate count alleging

a violation of WMATA’s CBC Policy, id.; the caption section of

the Complaint states that he is requesting a remedy for the

violation of his rights “secured by” the CBC Policy, see Compl.,

ECF No. 1 at 1; and his opposition appears to proffer breach of

contract and tort claims, including negligence, based on WMATA’s

alleged failure to follow its “documented policy guidelines,”

which he contends should not be “shielded by sovereign

immunity,” see Pl.’s Resp., ECF No. 9 at 10-11.

The Court first concludes that Mr. Pendergrass has failed

to state a breach of contract claim. Although section 80 of the

WMATA Compact “waives WMATA’s sovereign immunity for contractual

disputes[,]” Beebe,

; “[t]o allege a breach of

24 contract claim, Mr. Pendergrass must first allege the existence

of a contract[,]” Pendergrass,

, at *4; see U.S.

Conf. of Mayors v. Great-West Life & Annuity Ins. Co.,

(D.D.C. 2018) (“To prevail on a claim of

breach of contract, a party must establish (1) a valid contract

between the parties; (2) an obligation or duty arising out of

the contract; (3) breach of that duty; and (4) damages caused by

breach.” (citation and internal quotation marks omitted)).

Although Mr. Pendergrass argues that the CBC Policy is a valid

“contract” between WMATA and himself as an applicant for

employment with the agency, Pl.’s Resp., ECF No. 9 at 10; as

this District Court determined in the 2018 Case, “he has not

sufficiently alleged that WMATA’s enactment of the Policy

actually constitutes a contract between WMATA and its

applicants[,]” Pendergrass,

, at *4. Under Mr.

Pendergrass’ theory, “anyone who applies for a position with

WMATA would have a binding contract concerning the processing of

his application, and a job in the event of error.” Mem. Op.,

Martin v. WMATA, No. 02-851 (RMC) (D.D.C. Sept. 16, 2004), ECF

No. 35 at 5-6. However, “[a]bsent violations of a collective-

bargaining agreement or statute, a plaintiff has no contractual

remedy against a prospective employer who retracts an offer

before employment begins.”

(citations omitted). Since

Mr. Pendergrass has alleged no such facts, nor properly pled

25 facts establishing the basic elements of a contract claim, and

because WMATA’s hiring policies and procedures do not create “a

contractual obligation towards applicants,” Pendergrass,

, at *4; nor “substantive rights for . . . candidates for

employment at WMATA[,]” Def.’s Reply, ECF No. 11 at 7; the Court

dismisses Mr. Pendergrass’ breach of contract claims based on

WMATA’s CBC Policy, as this District Court did in the 2018 Case,

see Pendergrass,

, at *4.

The Court also concludes that Mr. Pendergrass has failed to

state any tort claims, including ones based in negligence, in

regard to his allegations that WMATA failed to follow its CBC

guidelines for the hiring process and “negligently discarded”

his individual assessment “in the trash.” Pl.’s Resp., ECF No. 9

at 10-11. First, as WMATA notes, Mr. Pendergrass’ Complaint does

not plead sufficient allegations to establish the basic elements

of a negligence claim. Def.’s Reply, ECF No. 11 at 6; see Magee

v. Am. Inst. of Certified Pub. Accts.,

(D.D.C. 2017) (“The elements of a negligence claim . . . are (1)

duty, (2) breach, (3) causation, and (4) damages.”). Second,

even if Mr. Pendergrass had sufficiently pled any tort claims in

the Complaint regarding WMATA’s CBC Policy, they must be

dismissed because WMATA’s hiring policies and procedures “are

‘governmental/discretionary decisions’ that are immune from

suit.” Pendergrass,

, at *4. The Court of Appeals

26 for the District of Columbia Circuit (“D.C. Circuit”) has

already considered the question of whether WMATA’s employment

practices are discretionary and has determined that “decisions

concerning the hiring, training, and supervising of WMATA

employees are discretionary in nature, and thus immune from

judicial review.” Burkhart v. WMATA,

(D.C.

Cir. 1997); see also Martin v. WMATA,

(D.D.C. 2003) (“WMATA is immune from tort claims arising from

the hiring, firing, and supervision of its employees[.]”).

Accordingly, the Court dismisses any tort claims based on

WMATA’s CBC Policy, as this District Court did in the 2018 Case,

see Pendergrass,

, at *4.

E. Mr. Pendergrass’ Claims Under the Federal Tort Claims Act Must Be Dismissed Because WMATA’s Hiring Policies and Procedures Are a Discretionary “Governmental Function” Shielded by Sovereign Immunity

As in his 2018 Case, “[i]n his opposition, Mr. Pendergrass

argues that he has made out a tort claim under the [FTCA,]”

; even though he raised no such claim or count in his

Complaint, compare Pl.’s Resp., ECF No. 9 at 8-9, with Compl.,

ECF No. 1 at 20-24. WMATA responds that Mr. Pendergrass has not

shown under the FTCA “that the CBC Policy is a policy that

places WMATA’s individualized assessment review processing

decisions outside WMATA’s immunity under the Compact.” Def.’s

Reply, ECF No. 11 at 5. The Court agrees.

27 Section 80 of the interstate compact states that WMATA is

not “liable for any torts occurring in the performance of a

governmental function.” D.C. CODE ANN. § 9-1107.01(80). WMATA’s

“governmental” functions that are protected by this immunity are

divided into two categories under the FTCA: (1) quintessential

governmental activities, such as police activity, and (2) non-

quintessential governmental activities that are “discretionary”

in nature. Burkhart,

. The U.S. Supreme Court

has defined a discretionary function as “one that involves

choice or judgment” and is “based on considerations of public

policy.” United States v. Gaubert,

,

,

(1991). In determining whether a

non-quintessential governmental activity is “discretionary,” and

therefore “shielded by sovereign immunity[,]” Burkhart,

; courts must first ask “whether any ‘federal statute,

regulation, or policy specifically prescribes a course of action

for an employee to follow[,]’” Cope v. Scott,

(D.C. Cir. 1995) (quoting Gaubert,

). “If there

is a prescribed course of action, sovereign immunity does not

bar suits based on a failure to follow that course.”

Pendergrass,

, at *5. If, however, the governing

statutes, regulations, or policies “leave room for ‘choice,’ an

exercise of such choice is exempt from suit under the FTCA if

the decision is ‘susceptible to policy judgment’ and involve[d]

28 an exercise of ‘political, social, [or] economic judgment.’”

Burkhart,

(quoting Cope,

).

As discussed above, the D.C. Circuit has already concluded

that WMATA’s decisions regarding the hiring of its employees

“are discretionary in nature,” and are therefore shielded from

judicial review.

This is the case because the hiring

decisions of a public entity like WMATA “require consideration

of numerous factors, including budgetary constraints, public

perception, economic conditions, individual backgrounds, office

diversity, experience and employer intuition.”

(citation and

internal quotation marks omitted). As WMATA explains, its CBC

Policy is a “hiring standard” and therefore “a classic example

of [the] exercise of its discretionary hiring authority”

grounded in the agency’s own “political, social, and economic

considerations.” Def.’s Reply, ECF No. 11 at 5. No federal

statute, regulation, or policy specifically prescribes the

“course of action” that WMATA must take in processing

applicants’ individualized assessment reviews, but instead the

decisions of the Individualized Assessment Panel involve the

exercise of “choice or judgment” and can thus be classified as

discretionary decisions protected by WMATA’s sovereign immunity.

Gaubert,

; see Def.’s Reply, ECF No. 11 at

6. Therefore, the Court dismisses Mr. Pendergrass’ opposition

29 claims that WMATA has violated the FTCA, as this District Court

did in the 2018 Case, see Pendergrass,

, at *5.

V. Conclusion

For the foregoing reasons, the Court GRANTS WMATA’s Motion

to Dismiss in Part, ECF No. 7. The Court thus dismisses all of

Plaintiff’s claims except for those arising under Title VII. 5 An

appropriate Order accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge September 6, 2023

5 In its reply, WMATA adds that “it should also be noted that Plaintiff’s apparent complaints about [WMATA’s] alleged failure to timely review his [individualized assessment] appeal are not of any import, even if the Court were to consider this information for purposes of the motion to dismiss.” Def.’s Reply, ECF No. 11 at 7. The Court agrees, as Mr. Pendergrass does not plead “any facts showing he suffered any damage as a result[,]”

; nor does he proffer any timeliness arguments in relation to the FCHRA, DCHRA, FTA, or CBC Policy in his oppositional response, see generally Pl.’s Resp., ECF No. 9. 30