UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
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COREY McFADDEN, )
)
Plaintiff, )
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v. ) Civil Action No. 12-940 (RBW)
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WASHINGTON METROPOLITAN )
AREA TRANSIT AUTHORITY, et al., )
)
Defendants. )
____________________________________)
MEMORANDUM OPINION
The plaintiff, Corey McFadden, proceeding pro se, brings this action against his former
employer, the Washington Metropolitan Area Transit Authority (“WMATA”), and three
WMATA employees, Lisa Cooper Lucas, Ron A. Kelley, and John Coleman (the “individual
defendants”), asserting claims for disability discrimination, retaliation, defamation, and civil
conspiracy. See Plaintiff’s First Amended Complaint (“Am. Compl.”) ¶¶ 175-243. Currently
before the Court are the Defendants’ Motion for Summary Judgment (“Defs.’ Mot.”); the
Plaintiff’s Opposition to Defendants’ Motion for Summary Judgment and Cross-Motion for
Summary Jud[g]ment (“Pl.’s Opp’n and Mot.”); the Plaintiff’s Motion to Strike the defendants’
memorandum in support of their motion for summary judgment and his Motion for Sanctions
(“Pl.’s. 1st Mot.); and the Plaintiff’s Motion to Strike certain transcripts from the record and his
Motion for Sanctions (“Pl.’s. 2nd Mot.). Upon careful consideration of the parties’ submissions,
the Court concludes for the following reasons that the plaintiff’s motions to strike must be
denied; the defendants’ motion for summary judgment must be granted in part and denied in
part; and the plaintiff’s cross-motion for summary judgment must be denied. 1
I. BACKGROUND
Much of the factual background of this case has been previously set forth by the Court,
see Order at 2 (Jan. 16, 2015), ECF No. 60; see also McFadden v. Wash. Metro Area Transit
Auth., 949 F. Supp. 2d 214, 218-19, 225 (D.D.C. 2013), and the amended complaint contains the
following allegations pertinent to the defendants’ motion. WMATA hired the plaintiff as a bus
mechanic in October 2008. Am. Compl. ¶ 11. In June 2009, the plaintiff was diagnosed with
Attention Deficit Hyperactivity Disorder (“ADHD”) and prescribed the drug Adderall “to
increase his focus and concentration.” Id. ¶¶ 16-17. Pursuant to a WMATA policy forbidding
employees in “safety-sensitive positions” from using amphetamines, the defendants prohibited
the plaintiff from working as a bus mechanic while taking Adderall, and suspended his
employment after he tested positive for use of the drug. See id. ¶¶ 33-40, 65-90. Subsequently,
at a grievance hearing before WMATA’s Joint Labor Management Committee in March 2011,
the individual defendants made statements, prior to the plaintiff’s arrival at the hearing,
indicating that the plaintiff was a drug addict who was abusing Adderall. See id. ¶¶ 72-74.
WMATA later fired the plaintiff for violating the authority’s substance abuse policy, but then
1
In addition to those filings already identified, the Court considered the following filings in rendering its decision:
(1) the Defendants’ Memorandum of Points and Authorities in Support of their Motion for Summary Judgment
(“Defs.’ Mem.”); (2) the Plaintiff’s Reply in Opposition to Defendants’ Memorandum of Points and Authority and
Memorandum in Support of [Plaintiff’s] Cross-Motion for Summary Judgment (“Pl.’s Opp’n”); (3) the Defendants’
Reply to Plaintiff’s Opposition to Defendants’ Motion for Summary Judgment and Opposition to Plaintiff’s Cross-
Motion for Summary Judgment (“Defs.’ Reply”); (4) the Defendants’ Opposition to the Plaintiff’s [First] Motion to
Strike and For Sanctions (“Defs.’ 1st Opp’n”); (5) the Plaintiff’s Reply to Defendants’ Opposition to Plaintiff’s
[First] Motion to Strike and for Sanctions (“Defs.’ Reply to Pl.’s 1st Mot.”); and (6) the Defendants’ Opposition to
Plaintiff’s [Second] Motion to Strike and for Sanctions (“Defs.’ 2nd Opp’n”).
2
reinstated his employment pursuant to an agreement with the Amalgamated Transit Union, Local
689, of which the plaintiff was a member. Id. ¶¶ 75, 77, 16.
On June 8, 2012, the plaintiff instituted this action, asserting multiple claims against all
defendants under the Rehabilitation Act of 1973, 29 U.S.C. § 701 (2012), and the Americans
with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12102(2)(B) (2012), as well as a defamation
claim against the individual defendants. See Order at 2 (Jan. 16, 2015), ECF No. 60. The Court
earlier dismissed the ADA claims against WMATA on the basis of sovereign immunity afforded
WMATA under the Eleventh Amendment, and the ADA and the Rehabilitation Act claims
against the individual defendants on the basis that there is no individual liability under either
statute. McFadden, 949 F. Supp. 2d at 219-20, 225. Accordingly, only the plaintiff’s
Rehabilitation Act claims against WMATA and the defamation claim against the individual
defendants remained alive. See id. at 225.
Following the issuance of the Court’s dismissal ruling, the plaintiff sought leave to file an
amended complaint to add an additional defendant, Dr. Desmond Johnson (“Dr. Johnson”), and
claims of both intentional infliction of emotional distress and civil conspiracy based on the
underlying tort of intentional infliction of emotional distress against the individual defendants
and proposed defendant Dr. Johnson. See Order at 5 (Apr. 11, 2014), ECF No. 38. The Court
denied the plaintiff’s motion in its entirety, finding that “allowing the plaintiff leave to amend his
complaint . . . would be futile,” id. at 6, because the plaintiff relied wholly on “allegations of
intra-workplace conduct,” id.; see also Kassem v. Wash. Hosp. Ctr., 513 F.3d 251, 256 (D.C.
Cir. 2008) (holding that the plaintiff stated facts sufficient to withstand the dismissal of his
intentional infliction of emotional distress claim because he “does not merely plead intra-
3
workplace mistreatment” but also pleads facts that suggest that his employer’s actions have
“subjected him to criminal penalties”), which are insufficient to sustain a claim of intentional
infliction of emotional distress, and because the plaintiff based his conspiracy claim on the tort of
intentional infliction of emotional distress, the conspiracy claim also failed as a matter of law due
to the legal requirement that a viable underlying tortious act be a condition precedent to the
sustainability of a civil conspiracy claim. See Order at 3 (Jan. 16, 2015), ECF No. 60.
Notwithstanding the Court’s reasoning in its April 11, 2014 Order, the plaintiff again
moved to file an amended complaint to once again add Dr. Johnson as an individual defendant
and to include and reassert claims of (1) negligent infliction of emotional distress against Dr.
Johnson; (2) intentional infliction of emotional distress against Dr. Johnson and the other
individual defendants; and (3) a civil conspiracy claim based on the torts of defamation,
negligent infliction of emotional distress, and intentional infliction of emotional distress. See
Order at 4 (Jan. 16, 2015), ECF No. 60. In partially denying and granting the plaintiff’s second
motion to amend, the Court concluded that allowing the plaintiff to amend the complaint to add
Dr. Johnson as an individual defendant would cause “[t]he legal landscape of this action . . . [to]
expand and become more complex, resulting in both undue delay and prejudice to the
defendants” and “would essentially create a case within a case” and re-start the litigation from
the beginning. Id. at 7-8. The Court also precluded the plaintiff from asserting a claim of
negligent infliction of emotional distress against either Dr. Johnson because the plaintiff had
“knowledge of the allegations that purportedly support his claim against Dr. Johnson for nearly
two years, and [did not] argu[e] that only through discovery did the facts come to light that
support the claim,” id. at 7, or the individual defendants because the plaintiff’s allegations “only
4
theoretically implicate potential criminal repercussions from the defendants’ actions based on
conduct that has never actually occurred,” id. at 9.
The Court further denied the plaintiff’s second motion to amend the complaint to include
a civil conspiracy claim based on the torts of negligent infliction of emotional distress and
intentional infliction of emotional distress, as the Court previously dismissed those claims,
prohibiting the survival of the civil conspiracy claims predicated on these torts. Id. at 10. The
Court, however, “in light of the record currently before the Court,” id., did grant the plaintiff’s
motion to amend the complaint to include a civil conspiracy claim based on the tort of
defamation because “the defendants will experience little prejudice, if any, as [the civil
conspiracy] claim only spreads liability among the alleged wrongdoers for the underlying tort
and will not necessarily require additional discovery that has not already been taken by the
parties,” id. at 10-11.
The defendants have now moved for summary judgment on all counts, which the plaintiff
simultaneously opposes and cross moves for summary judgment.
II. STANDARDS OF REVIEW
A. Motions to Strike
Motions to strike are “drastic remed[ies] that courts disfavor,” Riddick v. Holland, 134 F.
Supp. 3d 281, 285 (D.D.C. 2015) (citation omitted), and the trial judge has discretion to either
grant or deny the motion, see id. A court, either on its own volition or by a moving party, may
strike from a pleading 2 any “insufficient defense or any redundant, immaterial, impertinent or
scandalous matter.” Fed. R. Civ. P. 12(f). Rule 12(f) itself does not require the striking of
2
A “pleading” includes a complaint, an answer, an answer to a counterclaim, an answer to a cross-claim, a third-
party complaint, and a third-party answer. Fed. R. Civ. P. 7(a).
5
prejudicial matters, and although courts disfavor motions to strike, courts have granted such
motions, but only upon a showing that parts of a pleading are prejudicial or scandalous.
Therefore, “absent a ‘strong reason for so doing,’ courts will generally ‘not tamper with
pleadings.’” Nwachukwu v. Rooney, 362 F. Supp. 2d 183, 190 (D.D.C. 2005) (quoting Lipsky
v. Commonwealth United Corp., 551 F.2d 887, 893 (2d Cir. 1976)).
B. Motions for Summary Judgment
Courts will grant a motion for summary judgment “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). “A fact is material if it ‘might affect the outcome of the suit under
the governing law,’ and a dispute about a material fact is genuine ‘if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.’” Steele v. Schafer, 535 F.3d
689, 692 (D.C. Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
In considering a motion for summary judgment, “[t]he evidence of the non-movant is to
be believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at
255 (citation omitted). “Credibility determinations, the weighing of the evidence, and the
drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling
on a motion for summary judgment . . . .” Id. The movant has the burden of demonstrating the
absence of a genuine issue of material fact and that the non-moving party “fail[ed] to make a
showing sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986).
6
In responding to the summary judgment motion, the non-moving party “must do more
than simply show that there is some metaphysical doubt as to the material facts.” Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (citing cases). Accordingly,
the non-moving party must not rely on “mere allegations or denials . . . but must set forth
specific facts showing that there [are] genuine issue[s] for trial.” Anderson, 477 U.S. at 248 (one
ellipsis omitted) (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288
(1968)). “The mere existence of a scintilla of evidence in support of the [non-moving party’s]
position [is] insufficient” to withstand a motion for summary judgment, as “there must be [some]
evidence on which the jury could reasonably find for the [non-movant].” Id. at 252. Finally,
courts must afford a pro se plaintiff liberal construction of his summary judgment submissions,
affording him “the benefit of the doubt,” and “may ignore some technical shortcomings of their
filings.” Sindram v. Kelly, No. 06-cv-1952 (RBW), 2008 WL 3523161, at *3 (D.D.C. Aug. 13,
2008) (Walton, J.) (quoting Voinche v. FBI, 412 F. Supp. 2d 60, 70 (D.D.C. 2006)); see also
Richardson v. United States, 193 F.3d 545, 548 (D.C. Cir. 1999).
III. LEGAL ANALYSIS
A. The Plaintiff’s Motions to Strike
The plaintiff requests that this Court strike from the record the defendants’ Memorandum
in Support of their Motion for Summary Judgment in its entirety because the memorandum is not
signed as required by the rules of this Court. See Pl.’s 1st Mot. at 1. However, because motions
to strike can be directed only at pleadings, see Fed. R. Civ. P. 7 (distinguishing pleadings from
motions and other papers); see also Balcoh v. Norton, 517 F. Supp. 2d 345, 348 n.2 (D.D.C.
2007) (explaining that “a motion to strike . . . is limited to pleadings); Modaressi v. Vedadi, 441
7
F. Supp. 2d 51, 54 n.2 (D.D.C. 2006) (holding that “the plain language of Rule 12(f)” requires
the court to deny the plaintiff’s motion to strike the defendant’s motion to dismiss); Nwachukwu,
362 F. Supp. 2d at 190 (“Because the defendants’ reply memorandum is not a pleading, as
defined in Federal Rule of Civil Procedure 7(a), and motions to strike only apply to pleadings,
the plaintiff’s motion to strike is improperly directed at the defendants’ reply.”), and because the
plaintiff requests that the Court strikes the defendants’ memorandum in support of its motion for
summary judgment, which is not a pleading, the Court declines to grant the plaintiff’s motion to
strike the defendants’ memorandum.
Additionally, the plaintiff requests that this Court sanction Mr. Stief as the Court officer
who filed the unsigned memorandum. Pl.’s 1st Mot. at 1-2. In opposition, the defendants, albeit
admitting to the “proofreading” oversight, respond that signing the “signature block” on the
motion “serves the same purpose for the memorandum.” See Defs.’ 1st Opp’n at 2. Although
the Court does not condone technical errors committed by attorneys, the defendants’ position is
correct because a “written instrument that is an exhibit to a [motion] is a part of the [motion] for
all purposes.” Fed. R. Civ. P. 10(c). Therefore, the Court denies the plaintiff’s motion for
sanctions.
The plaintiff also seeks to strike from the record the plaintiff’s deposition transcript and
errata sheets (“Deposition Materials”), which the defendants filed as an exhibit with their Reply
to Plaintiff’s Opposition to Defendants’ Motion for Summary Judgment and Opposition to
Plaintiff’s Cross-Motion for Summary Judgment because they were filed “in violation of Rule 30
of the Federal Rules of Civil Procedure to prolong this civil action in an attempt to have both [of
his] civil actions combined.” Pl.’s 2nd Mot. at 1. More specifically, in his Notice of Objections,
8
which was part of the plaintiff’s first motion to strike, the plaintiff “objected to the inclusion of
fabricated, altered and un-finalized altered transcripts . . .[,] includ[ing] altered and un-finalized
transcripts of [his] deposition.” Pl.’s 1st Mot. at 1. The defendants respond that they filed a
complete copy of the deposition materials with their reply to dispel the plaintiff’s allegation of
misuse by the defendants when they filed abbreviated portions of the deposition materials with
their motion for summary judgment. Defs.’ 2nd Opp’n at 2.
Rule 30 of the Federal Rules of Civil Procedure outlines the protocols for depositions by
oral examination, see Fed. R. Civ. P. 30, but does not address whether an entire copy or an
abbreviated portion of a deposition transcript must be included when the transcript is filed. See
id. 30(f). In any event, because the plaintiff’s deposition materials are relevant to the Court’s
summary judgment rulings, are not prejudicial to the plaintiff, and were filed on behalf of the
defendants in good faith, the Court, in its discretion, denies the plaintiff’s motion to strike the
deposition materials from the record. See Nwachukwu, 362 F. Supp. 2d at 190 (holding that a
motion to strike is for “redundant, immaterial, impertinent or scandalous matter,” Fed. R. Civ. P.
12(f), and should not be used as “a vehicle to penalize parties and prevent the court from
considering a party’s motion.”). Accordingly, there being no underlying violation of Rule 30,
the Court also denies the plaintiff’s second motion for sanctions.
B. The Plaintiff’s Rehabilitation Act Claims Against WMATA
WMATA moves for summary judgment on the plaintiff’s disability discrimination and
retaliation claims under the Rehabilitation Act on the grounds that they are, at least in substantial
part, time-barred and that they fail on the merits. See Defs.’ Mem. at 5-16. The Court will
address each argument in turn.
9
1. Timeliness
“Because the Rehabilitation Act does not specify its own limitations period, courts
generally ‘borrow one from an analogous state cause of action, provided that the state limitations
period is not inconsistent with underlying federal policies.’” Alexander v. Wash. Metro Area
Transit Auth., __ F.3d. __, __, 2016 WL 3467416, at *5 (D.C. Cir. June 24, 2016) (quoting
Spiegler v. District of Columbia, 866 F.2d 461, 463-64 (D.C. Cir. 1989)). In general, “when a
federal court borrows a limitations period from state law, that law’s tolling provisions come
along as part of the package . . . [because] ‘the chronological length of the limitations period is
interrelated with provisions regarding tolling.’” Id. (quoting Johnson v. Ry. Express Agency,
Inc., 421 U.S. 454, 464 (1975). Accordingly, federal courts “should not unravel state limitations
rules unless their full application would defeat the goals of the federal statute at issue.” Harden
v. Straub, 490 U.S. 536, 539 (1989).
WMATA argues that the applicable statute of limitations is the one-year limitations
period of the District of Columbia Human Rights Act, see Defs.’ Mem at 5-6 (citing Jaiyeola v.
District of Columbia, 40 A.3d 356, 362-68 (D.C. 2012) (Human Rights Act’s “one-year statute
of limitations governs § 504 claims in this jurisdiction”)). Although recognizing the
disagreement by members of this Court as to whether an employee’s pursuit of administrative
remedies toll the statute of limitations, WMATA asserts that the plaintiff’s filing of a charge of
discrimination with the Equal Employment Opportunity Commission (“EEOC”) “does not toll
the running of the statute of limitations in Rehabilitation Act cases.” Id. at 7 (citing Johnson, 421
U.S. at 461).
10
However, the District of Columbia Circuit recently held in Alexander that under the
Human Rights Act, “[t]he timely filing of a complaint with the [District of Columbia Office of
Human Rights], or under the administrative procedures established by the Mayor...shall toll the
running of the statute of limitations while the complaint is pending.” Alexander, __ F.3d at __,
2016 WL 3467416, at *5 (citing D.C. CODE ANN § 2-1403.16(a)). More importantly, the EEOC
and the Office of Human Rights maintain a work-sharing agreement, which provides that “the
timely filing of a complaint with the EEOC” triggers this tolling provision. Id. (quoting Jaiyeola,
40 A.3d at 369).
In Alexander, the plaintiff filed a complaint alleging disability discrimination under the
Rehabilitation Act based upon WMATA’s refusal to rehire the plaintiff after completing an
intensive alcohol dependency treatment program. Id. at *1-2. WMATA, as in this case, argued
that the plaintiff’s Rehabilitation Act claim was time barred because the complaint was filed
more than a year after the adverse rehiring decisions and that the Supreme Court’s decision in
Johnson foreclosed the plaintiff’s reliance on the tolling provision. Id. at *5 (citing 424 U.S. at
461, where the Court concluded that the limitations period for the plaintiff’s § 1981 claim was
not tolled by the plaintiff’s pursuit of his Title VII claim before the EEOC). In distinguishing
Johnson, the Alexander court reasoned that the claim the plaintiff exhausted through the
administrative process in Alexander was “closely akin to [the plaintiff’s] Rehabilitation Act
claim” and that “District law mandates tolling.” Id. at *6. (“[T]he relevant state statute of
limitation in Johnson did not have any tolling provision, and so the Court deferred to the State’s
judgment ‘in setting a limit, and exceptions thereto, on the prosecution of a closely analogous
claim.’” (quoting Johnson, 421 U.S. at 464)). And, the Alexander court further explained that
11
the Human Rights Act does not “limit tolling to mandatory exhaustion,” but is generally
applicable to “any time period ‘while [an administrative] complaint is pending.’” Id.
Consequently, the court held that the plaintiff’s complaint was timely filed.
In this case, the plaintiff’s Rehabilitation Act claims are not time-barred, having been
filed within the one year limitations period provided by the District of Columbia Human Rights
Act. The allegations that the plaintiff asserts commenced on or about June 10, 2010, and to seek
relief based on all of these allegations, the plaintiff was required, absent any intervening events,
to file his complaint by June 10, 2011, pursuant to the one year limitations period provided by
the Human Rights Act. However, because the plaintiff filed a timely Charge of Discrimination
with the EEOC on January 21, 2011, see Defs.’ Mem., ECF No. 78-7, Exhibit (“Ex.”)
Attachment 1 (Charge of Discrimination) 3, the limitations period was tolled, as mandated by the
Human Rights Act, and the running of the limitations period did not resume until March 17,
2012, the day after the EEOC issued the plaintiff a right-to-sue notice, leaving the plaintiff with
approximately 5 months to timely file his complaint by August 10, 2012. Having filed this
action on June 8, 2012, the plaintiff timely filed the action within the limitations period.
Accordingly, the Court declines to grant the defendants’ motion for summary judgment on the
plaintiff’s Rehabilitation Act claims against WMATA on the grounds that the claims are, in
substantial part, time-barred.
2. The Merits of the Plaintiff’s Rehabilitation Act Claims
Alternatively, WMATA argues that even if timely, the plaintiff’s disability discrimination
and retaliation claims pursuant to the Rehabilitation Act fail on the merits. The Rehabilitation
3
In referencing the parties’ exhibits, the Court will use the assigned electronic court filing (“ECF”) page numbers
for pincites.
12
Act expressly prohibits discrimination against an “otherwise qualified individual with a disability
. . . solely by reason of his disability.” 29 U.S.C. § 794(a) (2014). And, it also prohibits
retaliation “against any individual because such individual has opposed any act or practice made
unlawful by this chapter or because such individual made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under this chapter.” 42
U.S.C. § 12203(a). The Court will address the merits of each claim in turn.
a. Disability Discrimination Claim
The plaintiff alleges disability discrimination against WMATA pursuant to the
Rehabilitation Act based on his claim that WMATA failed to provide him with a reasonable
accommodation for his disability. See Am. Compl. ¶¶ 175-192. Discrimination claims under the
Rehabilitation Act are governed by the legal standards for employment discrimination claims
brought under the ADA. 29 U.S.C. § 794(a). Under the ADA, discrimination includes “not
making reasonable accommodations to the known physical or mental limitations of an otherwise
qualified individual with a disability who is an employee, unless [the employer] can demonstrate
that the accommodation would impose an undue hardship on the [employer’s] operation of [its]
business.” 42 U.S.C. § 12112(b)(5)(A) (2009); see also 29 C.F.R. § 1614.203(c)(1) (2016).
In this Circuit, failure to provide reasonable accommodation claims are not subject to the
rigorous analysis mandated by the McDonnell-Douglass burden-shifting framework. Id.; see
also Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1288 (D.C. Cir. 1998) (“We then consider [the
plaintiff’s] reasonable accommodation claim, which is not subject to analysis under the
13
McDonnell-Douglas, but has its own specialized legal standards.”). 4 Rather, to survive summary
judgment, a plaintiff must establish a prima facie case of discrimination under the Rehabilitation
Act for failure to provide reasonable accommodations by producing
evidence from which a reasonable fact-finder could find that (1) he had a qualifying
disability within the meaning of the statute, (2) his employer had notice of his
disability, (3) with reasonable accommodation, he could perform the essential
function of the position, and (4) he requested an accommodation but the employer
denied his request.
Doak v. Johnson, 19 F. Supp. 3d 259, 273 (D.D.C 2014).
WMATA does not dispute that the plaintiff is an individual with a disability and that it
had notice of his disability. See generally Defs.’ Mem. at 9-16. Thus, WMATA does not contest
that the plaintiff has established the first two elements of his prima facie case for his failure to
accommodate claim. What WMATA takes issue with are the third and fourth elements of the
plaintiff’s prima facie case, arguing that the plaintiff was not a qualified individual with a
disability who with or without accommodations could perform the essential functions of his job,
see id. at 9-10, and that it “made a good faith and successful effort to accommodate the
plaintiff’s disability,” id. at 10.
To establish the third element of his prima facie case, the plaintiff must demonstrate that
he is a qualified individual, which under the Rehabilitation Act, is “an individual with a
disability who, with or without reasonable accommodation, can perform the essential functions
of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8); see
4
In its Memorandum of Support for its motion for summary judgment, WMATA incorrectly applies the three part,
burden-shifting framework established by McDonnell-Douglass to the plaintiff’s disability discrimination claim for
failure to provide a reasonable accommodation. Because the District of Columbia Circuit has made clear that it is
not appropriate to apply this framework to a failure to accommodate claim, the Court will not consider WMATA’s
extensive discussion of this framework in its attempt to demonstrate why the plaintiff’s Rehabilitation Act disability
discrimination claim fails on the merits.
14
also 29 C.F.R. § 1614.203(a)(6). Thus, if the individual with a disability can perform the
essential functions of his position with reasonable accommodations, he is deemed to be
“qualified.” See Graffius v. Shinseki, 672 F. Supp. 2d 119, 126 (D.D.C. 2009) (citing Carr v.
Reno, 23 F.3d 525 (D.C. Cir. 1994)). “An accommodation is ‘reasonable’ if it allows the
employee to fulfill all essential functions of h[is] job without imposing an undue hardship on
[his] employer.” Id. (citing 29 C.F.R. § 1614.203(c)(1)). The employee bears the burden of
identifying a reasonable accommodation, and the employer likewise bears the burden of proving
undue hardship. Id. In this case, the plaintiff sought to use Adderall, an amphetamine prescribed
by his physician, to manage the symptoms associated with his mental impairment and “increase
his focus and concentration.” Am. Compl. ¶ 17. WMATA denied the plaintiff’s request based
on purported federal regulations and safety related considerations. Id. ¶¶ 34-37, 71-73.
For several reasons, there is a genuine dispute of material fact as to whether the plaintiff,
with the use of Adderall as a reasonable accommodation, could perform the essential functions
of his position as a bus mechanic for WMATA. First, WMATA asserts that, pursuant to federal
regulations, the plaintiff is not qualified for the position of bus mechanic because of his “use of
Adderall” and his failure to provide WMATA “the requisite certification that the doctor who
prescribed him Adderall was familiar with his assigned duties.” Defs.’ Mem. at 15. WMATA
bus mechanics are tasked, among other responsibilities, with repairing, servicing, and operating
transit authority’s buses. 5 See id. at 12. To perform these essential functions, a bus mechanic
must have a commercial driver’s license, see Am. Compl. ¶ 13, to operate commercial motor
5
Federal regulations address the repairing and maintenance of commercial motor vehicles, see 49 C.F.R. § 396, but
these regulations do not address the physical qualifications or physical restrictions that cover individuals who
service or repair such vehicles.
15
vehicles, such as WMATA’s buses. And, federal regulations provide safety guidelines that
govern the physical qualifications of individuals seeking to operate commercial motor vehicles.
49 C.F.R. § 391.11(a) (2015). Under these regulations, such individuals are prohibited from
using certain controlled substances, such as the Schedule II drug Adderall, unless a licensed
medical practitioner, who is familiar with the individual’s medical history, prescribes the use and
properly advises the individual that the use will not adversely affect the individual’s ability to
operate a commercial motor vehicle. Id. § 391.41(b)(12). If the licensed medical practitioner
finds the individual physically qualified, he must complete a certification and provide a copy to
the individual. Id. § 391.43(g)(2). WMATA adheres to these federal regulations and has not
implemented an internal policy that further adds to the federal regulations by prohibiting the use
of a controlled substance like Adderall by its employees in safety-sensitive positions such as bus
mechanics. See Defs.’ Mem., ECF No. 78-6, Ex. A (Memorandum entitled “Cory McFadden-
Amended Resp. dated March 30, 2011) (“March 30, 2011 Mem.”) at 1-2. Thus, the plaintiff is
qualified for the position of bus mechanic while using Adderall if his licensed medical physician
prescribes the use and completes the requisite certification.
But, WMATA, relying on the affidavit of defendant Cooper-Lucas, claims that the
plaintiff never provided the requisite certification from his prescribing physician for his use of
Adderall while on duty as a bus mechanic. And contrary to the plaintiff’s assertion that federal
law does not require such certification, see Pl.’s Opp’n at 9, the plaintiff’s prescribing physician
must provide such a certification to “the employing motor carrier who requests it.” 49 C.F.R. §
391.43(g)(2)(i). The record, however, does not reflect that WMATA actually made a request for
the certification; rather, the record shows that on June 10, 2010, WMATA asked the plaintiff to
16
“have your physician evaluate your medical regimen [because] as a [commercial driver license]
holder you’re not permitted under DOT regulations to use Adderall” and to “provide the results
to WMATA’s Medical Office.” Pl.’s Opp’n, ECF No. 84-15, Ex. 48 (WMATA Medical
Services & Compliance Branch Fitness for Duty Examination Form dated June 10, 2010). The
plaintiff was provided “a referral form to take to his physician with much of the same
instruction” and was “held off from work until [WMATA’s Medical Office] had a response from
his physician.” See id., ECF No. 84-34, Ex. 85 (Memorandum dated August 23, 2010 re
Grievance Case 010430) (“August 23 Mem.”). This plausibly suggests that WMATA was only
instructing the plaintiff not to use Adderall and for the plaintiff to ask his physician for an
alternative medication. The plaintiff seemingly complied with what he thought he was told to
do, as he subsequently supplied WMATA with an alternative prescription. See id., ECF No. 84-
34, Ex. 85 (August 23, 2010 Mem.) (noting that when WMATA’s Medical Office saw the
plaintiff six days later, the plaintiff “stated that his primary care physician had discontinued the
Adderal [sic] and started him on Strattera” and the plaintiff was “cleared [to] return to regular
duties”); see also id., ECF No. 84-42, Ex. 102 (Prescription Reporting Form dated June 18,
2010). WMATA’s request cannot definitively be construed as an instruction for the plaintiff to
provide WMATA with a copy of the requisite certification completed by his physician indicating
that he is familiar with the plaintiff’s medical history and has properly advised him that using
Adderall will not adversely affect his ability to operate a commercial motor vehicle. But, even if
the record supported this interpretation, WMATA expressly states that “[t]here is no dispute that
WMATA initially allowed [the p]laintiff to continue to work as a bus mechanic based on his
treating doctor’s certification regarding the use of Adderall.” Defs.’ Mem. at 10. Because
17
WMATA did not have a policy prohibiting the use of Adderall by its employees in safety
sensitive positions such as bus mechanics and federal regulations do not prohibit the use of
Adderall by individuals operating a commercial motor vehicle provided that the prescribing
physician provides the requisite certification, which WMATA affirms they received, WMATA’s
argument, that the plaintiff cannot perform the essential functions of the bus mechanic position
because he is not qualified for the position due to his use of Adderall and his failure to provide
the requisite certification from his prescribing physician that the plaintiff was advised that such
use will not adversely affect his ability to operate a commercial motor vehicle does not entitle
WMATA to summary judgment.
WMATA next argues that the “plaintiff had significant safety-related issues regardless of
whether or not he was on Adderall,” id. at 12, therefore showing that the plaintiff could not
perform the essential functions of the bus mechanic position even with the requested
accommodation. Considering the facts in the light most favorable to the plaintiff as the non-
moving party, the record consists of the following regarding the plaintiff’s involvement in safety-
related incidents and his use of Adderall. In the spring of 2009, the plaintiff committed two
safety-related infractions; in both instances, he moved the bus he was servicing without first
detaching the fuel nozzle. After the second occurrence, the plaintiff sought medical advice, and
in June of 2009, he was diagnosed with ADHD. See Am. Compl. ¶ 16. The plaintiff first tried
therapeutic treatment to manage the associated symptoms, id., and when deemed ineffective, the
plaintiff then began using medically prescribed Adderall, id. ¶ 17, and he reported its use to
WMATA, see Pl.’s Opp’n, ECF No. 82-1, Ex. 2 (Prescription Reporting Form dated June 26,
2009). Thereafter, the plaintiff reported feeling “jittery” to a co-worker. See Am. Compl. ¶ 24;
18
see also Pl.’s Opp’n, ECF No. 82, Ex. 1 (June 9, 2010 Email from Cooper-Lucas). On June 9,
2010, the plaintiff was instructed to report to WMATA’s medical department for testing, see id.,
ECF No. 83-8, Ex. 19 (WMATA Notice Form dated June 9, 2010), which he did the following
day. See id., ECF No. 83-9, Ex. 20 (WMATA Medical Office Return to Duty Notice dated June
10, 2010). While at the medical department, the plaintiff was informed by Dr. Johnson, a
WMATA medical review officer, that he could not take Adderall because of his job position
based on federal law and that he needed to change prescriptions before he would be allowed to
return to work. See id. The plaintiff then began taking Strattera, a non-stimulant medication
designed to treat ADHD, and was able return to work on or about June 16, 2010. See id., ECF
No. 83-10, Ex. 21 (WMATA Medical Office Return to Duty Notice dated June 16, 2010).
Subsequently, the plaintiff was involved in two additional on-the-job accidents, the last occurring
on or about September 6, 2010. See Defs.’ Mem. at 2; see also Pl.’s Opp’n at 13. Both accidents
were attributed by the plaintiff to being prohibited from using Adderall. See id., ECF No. 84-16,
Ex. 51 (Accident Appeal Form dated September 18, 2010) (“Accident Appeal”).
Based on the plaintiff’s further investigation of federal law and WMATA’s policy on the
use of prohibited controlled substances by employees in safety-sensitive positions, he filed an
accident appeal regarding the second accident and began taking Adderall again. See id., ECF
No. 84-16, Ex. 51 (Accident Appeal). On January 18, 2011, the plaintiff was instructed to report
to WMATA’s medical department, see id., ECF No. 82-3, Ex. 4 (Email from Jessie Joachim to
Mr. Coleman dated January 18, 2011) (“January 18, 2011 Email”), which he did the following
day. The plaintiff was again instructed to cease using Adderall and not to return to work until he
started taking another prescription drug. See id., ECF No. 82-7, Ex. 8 (WMATA Medical Office
19
Return to Duty Notice dated January 19, 2011); ECF No. 82-9, Ex. 10 (Email from Mary C.
Fleming to Copper-Lucas dated January 31, 2011) (“January 31, 2011 Email”) at 3. The plaintiff
reluctantly obliged and provided WMATA’s medical department with a prescription for
Strattera. See id., ECF No. 82-6, Ex. 7 (Prescription Form from Dr. Peter Blaes dated January
19, 2011). On Friday, January 21, 2011, the plaintiff had a conversation with defendant Cooper-
Lucas, and he agreed not to take Adderall after the upcoming Sunday afternoon. See Pl.’s
Opp’n, ECF No. 82-4, Ex. 5 (WMATA Medical Office Return to Duty Notice dated January 21,
2011) (“January 21, 2011 Return to Duty Notice”); ECF No. 82-5, Ex. 6 (Email from Cooper-
Lucas to John Coleman dated January 21, 2011) (“January 21 Email”); see also Defs.’ Mem.,
ECF No. 78-6, Ex. B (Joint Labor Management Committee Meeting Transcript dated March 15,
2011) (“Committee Transcript”) at 38. The plaintiff was then allowed to return to duty on
January 24, 2011. On the next day, January 25, 2011, the plaintiff sustained another on-the-job
injury.
Based on this record, the plaintiff has produced sufficient evidence from which a
reasonable fact-finder could conclude that he could perform the essential functions of the
position of bus mechanic with the use of Adderall as a reasonable accommodation. The record
indicates that the plaintiff was not involved in any safety-related incidents while actively using
Adderall. In fact, the record suggests the opposite – that with the use of Adderall, the plaintiff
performed his duties devoid of any safety-related incidents, but that without the use of Adderall,
the plaintiff was accident prone due to his symptoms caused by his ADHD. The only incident 6
6
The defendants argue that the plaintiff was provided a reasonable accommodation when he was placed in a Station
Manager’s position, a non-safety sensitive position, after an “April 5, 2012 incident in which [the p]laintiff left his
bus running in an alley for a few hours and he told the supervisor that he ‘forgot’ about it.” Defs.’ Mem. at 13. This
(continued . . .)
20
that might suggest otherwise is the plaintiff’s on-the-job injury which, as the medical review
officer noted, a genuine question exists as to whether the plaintiff continued taking Adderall after
being instructed not to do so, or whether his prior use of Adderall was still traceable in the
plaintiff’s urine when the injury occurred. See Pl.’s Opp’n, ECF No. 84-19, Ex. 56 (WMATA
Medical Review Officer Verification Worksheet dated January 31, 2011) (“January 31, 2011
Verification Worksheet”). Also, John Coleman, a supervisor in the plaintiff’s chain of
command, conducted an investigation “into the allegation made by [the plaintiff] that he was
discriminated against on the basis of his disability and that his termination was a retaliatory act
based on being denied an accommodation request for his disability” and did not find “any
reference to a safety violation in [the plaintiff’s] personnel folder.” Id., ECF No. 84-36, Ex. 90
(Memorandum re Amended Notification of EEOC Charge dated June 28, 2011) at 1. Moreover,
WMATA has not produced any research or medical expert evidence which indicates that the use
of Adderall by employees in safety-sensitive positions compromises safety. Other than the
evidence concerning the safety-related incidents, WMATA also has failed to provide any other
evidence of the plaintiff’s inability to perform the essential functions of a bus mechanic.
Accordingly, the Court cannot grant summary judgment on the plaintiff’s disability
discrimination claim for either the plaintiff or the defendants.
b. Retaliation Claim
The plaintiff alleges WMATA retaliated against him in violation of the Rehabilitation
Act for asserting his rights under the Rehabilitation Act and for filing a charge of discrimination
(. . . continued)
incident and the facts surrounding it are in dispute in another case brought by the plaintiff, and therefore, are not
within the Court’s province, at this time, to consider in resolving the issues in the present case.
21
with the EEOC. See Am. Compl. ¶¶ 193-200. On the other hand, WMATA asserts that the
plaintiff’s retaliation claim under the Rehabilitation Act fails on the merits because it had
“legitimate, non-discriminatory reasons” for its employment-related actions which “the plaintiff
cannot demonstrate . . . were pre-textual.” Defs.’ Mem. at 16.
“Where, as here, a plaintiff offers only circumstantial evidence of retaliation, [his] claim
is governed by the burden-shifting framework of McDonnell-Douglass.” Solomon v. Vilsack,
763 F.3d 1, 14 (D.C. Cir. 2014) (Rehabilitation Act case). This framework requires the plaintiff
to first establish a prima facie case of retaliation by showing that “(1) he engaged in a statutorily
protected activity; (2) [he] suffered a materially adverse action by [his] employer; and (3) a
causal connection existed between the two.” Wiley v. Glassman, 511 F.3d 151, 155 (D.C. Cir.
2007). If the plaintiff satisfies this burden, “the burden of production shifts to the employer to
produce a ‘legitimate, nondiscriminatory reason’ for its action.” Solomon, 763 F.3d at 14
(quoting Wiley, 511 F.3d at 155). If the employer provides such a reason, the plaintiff must then
counter with “sufficient evidence to ‘create a genuine dispute on the ultimate issue of retaliation
either directly by [showing] that a discriminatory reason more likely motivated the employer or
indirectly by showing that the employer’s proffered explanation is unworthy of credence.’” Id.
(quoting Pardo-Kronemann v. Donovan, 601 F.3d 599, 604 (D.C. Cir. 2010)).
Once the employer comes “forward with a legitimate, non-retaliatory justification for
[their] actions,” the burden shifting framework becomes irrelevant and the court need not
determine whether the plaintiff established a prima facie case of retaliation. Id. Rather, the court
should proceed to the question of retaliation vel non, as that “question is the ultimate factual
issue in the case.” Id. (citations and quotations omitted). Here, WMATA argues that safety-
22
related considerations for its employees and passengers were the legitimate, non-discriminatory
reasons for its employment-related actions it took in regards to the plaintiff. Defs.’ Mem. at 9.
Viewing the record in the light most favorable to the plaintiff as the non-moving party,
the following are the facts pertinent to the plaintiff’s claim of pretext. On September 18, 2010,
the plaintiff filed an accident appeal concerning an accident that occurred on September 6, 2010,
for which he contends he should not have been held responsible for because he “was
unjustifiably forced to stop taking Adderall.” Pl.’s Opp’n, ECF No. 84-16, Ex. 51 (Accident
Appeal). On his appeal form, the plaintiff explained that he was told “it was against the
Department of Transportation guideline[s] to have any [commercial driver license] holder use a
schedule 2 medication,” but after further investigation, he learned that “neither the [Department
of Transportation] or WMATA have a written policy that prevents the use of a schedule 2
narcotic as long as the use is in adherence to a prescribed treatment issued by a licensed
practitioner.” Id. And he contends that his “use falls [within] this category.” Id. The appeal
form was signed and dated by the plaintiff’s supervisor. Id. On January 18, 2011, the appeal
board conducted a hearing and, in denying the appeal, determined that “the majority of the panel
agreed that the accident was rated properly.” Id., ECF No. 84-18, Ex. 53 (Accident Appeal Form
Panel Decision dated January 18, 2011) (“Accident Appeal Decision”).
After the accident appeal hearing concluded, but on the same date, the plaintiff was
instructed to report to WMATA’s medical department, see id., ECF No. 82-3, Ex. 4 (January 18,
2011 Email), because he “self-disclosed to management on January 18th [that] he was using a
prohibited medication.” id., ECF No. 82-9, Ex. 10 (January 31, 2011 Email). The plaintiff
reported to the medical department on January 19, 2011, and as noted earlier, he was instructed
23
to not use Adderall and was informed that he would not be permitted to work until he changed
prescriptions. See id., ECF No. 82-7, Ex. 8 (WMATA Medical Office Return to Duty Notice
dated January 19, 2011); ECF No. 82-9, Ex. 10 (January 31, 2011 Email). The next day, the
plaintiff provided WMATA’s medical department with a prescription for Strattera. See id., ECF
No. 82-6, Ex. 7 (Prescription Form from Dr. Peter Blaes dated January 19, 2011). He spoke with
defendant Cooper-Lucas on January 21, 2011, see Defs.’ Mem., ECF No. 78-6, Ex. B
(Committee Transcript) at 38, and “[r]eported [that] he would stop taking Adderall before 2pm
[on] January 23, 2011.” Pl.’s Opp’n, ECF No. 82-8, Ex. 9 (WMATA Employee Assistance
Program Substance Abuse Professional’s Assessment dated February 4, 2011) (“Assessment
Intake”). Defendant Cooper-Lucas told the plaintiff that “if you are off that medication for 48
hours, you should be clean.” Defs.’ Mem., ECF No. 78-6, Ex. B (Committee Transcript) at 38.
The plaintiff agreed not to further take Adderall after the designated time and was given a return
to duty notice on January 21, 2011, allowing him to return to work on January 24, 2011. See
Pl.’s Opp’n, ECF No. 82-4, Ex. 5 (January 21, 2011 Return to Duty Notice); ECF No. 82-5, Ex.
6 (January 21 Email); see also Defs.’ Mem., ECF No. 78-6, Ex. B (Committee Transcript) at 38.
However, the plaintiff also filed a Charge of Discrimination with the EEOC on January 21, 2011,
alleging disability discrimination. See Defs.’ Mem., ECF No. 78-7, Ex. Attachment 1 (Charge of
Discrimination).
On January 25, 2011, the plaintiff “experienced an on-duty injury while working on [a]
bus” and the “results of the Post Incident Medical Examination” conducted later that night “were
positive for amphetamines [,which purportedly] . . . place[d the plaintiff] in violation of the
Authority’s Policy on Substance Abuse.” Pl.’s Opp’n, ECF No. 83-13, Ex. 24 (WMATA
24
Investigation Report dated February 3, 2011). But, although the plaintiff’s urinalysis tested
positive for amphetamines, his urinalysis was ruled negative by a medical review officer, see id.,
ECF No. 83, Ex. 11 (Designated Employer Representative/Designee Non-Negative Worksheet
dated January 1, 2011); ECF No. 84-19, Ex. 56 (January 31, 2011 Verification Worksheet),
because the plaintiff had a legitimate medical explanation, see id., ECF No. 83-3, Ex. 14
(Medical Review Officers and the Verification Process). Nonetheless, it was determined that the
plaintiff violated WMATA’s prescription reporting policy, see id., ECF No. 83-4, Ex. 15
(Memorandum re Administrative Action dated February 3, 2011) (“February 3, 2011 Mem.”),
which provides that “[f]ailure to report prescription medication . . . , the presence of which may
be detected by a urinalysis test . . . , shall constitute a positive test result,” id., ECF No. 84-7, Ex.
36 (WMATA Policy/Instruction). Also, WMATA’s Substance Abuse policy states, “[u]nder
appropriate circumstances, in cases where the employee was disciplined . . . for any drug
presence for which the employee had a legitimate, but unreported prescription, the Medical
Director may establish a minimum [Employee Assistance Program] duration of 30 days.” Id.,
ECF No. 84-4. Ex. 33 (WMATA Substance Abuse Policy and Employee Assistance Program).
Consequently, the plaintiff was “(1) immediately released from pay status . . . (2) given ten days
to enroll in the [Employee Assistance Program] as a Category II participant [and] (3) upon
enrollment . . . remain in release from pay status for the . . . minimum 30 days, [and told that] (4)
failure to enroll [or] satisfactorily complete the EAP participation requirements will result in
[his] discharge.” Id., ECF No. 83-4, Ex. 15 (February 3, 2011 Mem.).
On February 24, 2011, while submitting to surveillance testing, the plaintiff informed his
Employee Assistance Program counselor about a “new prescription for Adderall.” Id., ECF No.
25
84-22, Ex. 61 (Individual Contact Record dated February 24, 2011) (“Individual Contact
Record”). The parties, however, dispute whether the plaintiff asked if he could take the
prescription while he was not working due to the suspension, see generally Defs.’ Mem., ECF
No. 78-6, Ex. B (Committee Transcript), or if he indicated that he intended to take Adderall, see
Pl.’s Opp’n, ECF No. 84-22, Ex. 61 (Individual Contact Record). In any event, on February 28,
2011, the plaintiff received a notice that “it was determined that [he has] been non-compliant”
with his Employee Assistance Program contract and was “referred to the Joint Labor
Management Committee [(“Committee”)] for case review.” Id., ECF No. 84-21, Ex. 60 (Letter
from Cooper-Lucas dated February 28, 2011). Based on the information provided at a
subsequent hearing, the Committee referred the plaintiff for administrative action and voted to
terminate the plaintiff’s employment. See Defs.’ Mem., ECF No. 78-6, Ex. B (Committee
Transcript) at 72.
Based on this record, the plaintiff has produced sufficient evidence from which a
reasonable juror could conclude that WMATA’s proffer of safety-related considerations were
pretextual and that WMATA was likely motivated more by retaliation against the plaintiff. First,
the appeal board’s decision form provided commentary that gives the Court some pause for
several reasons: (1) the board was composed of three individuals, one being Mr. Coleman, who
was one of the supervisors in the plaintiff’s chain of command and who had been the subject of
grievances filed by the plaintiff, see Pl.’s Opp’n, ECF No. 84-50, Ex. 113 (Statement for
Grievance Filing) at 1; (2) the plaintiff “appealed [with] no explanation,” even though he filed a
detailed explanation signed by his immediate supervisor, wherein he asserted that he was
unjustifiably forced to stop taking Adderall given his understanding that federal law permits the
26
use of Adderall pursuant to treatment prescribed by a licensed practitioner, and while WMATA
did not have a policy prohibiting the use of Adderall; and (3) even though the plaintiff was
present during the hearing, the union’s shop steward signed the form on the plaintiff’s behalf,
suggesting that the plaintiff was not afforded an opportunity to review or even contest the
information provided on the decision form. Id., ECF No. 84-18, Ex. 53 (Accident Appeal
Decision). Also, even though the plaintiff submitted multiple prescription reporting forms to
WMATA for his use of Adderall after filing his accident appeal, see id., ECF No. 84-46, Ex. 106
(Prescription Reporting Form dated October 9, 2010); ECF No. 84-47, Ex. 110 (Prescription
Reporting Form dated November 10, 2010); ECF No. 84-48, Ex. 111 (Prescription Reporting
Form dated December 10, 2010), it was not until immediately after the appeal hearing, when
WMATA learned that the plaintiff resumed taking Adderall, that the plaintiff was instructed to
report to the medical department where he was again directed to cease taking Adderall and
change prescriptions if he desired to return to work. After agreeing not to further take Adderall
and to switch back to Strattera, the plaintiff returned to work and had an on-the-job injury. The
post-incident test results were positive for amphetamines (Adderall) but were ruled negative by
the medical review office because the plaintiff had a prescription for its use. Nonetheless, the
plaintiff was cited for violating WMATA’s prescription reporting policy for failure to report his
prescription for Adderall and was immediately reprimanded. The Court finds this basis for
disciplining the plaintiff concerning, given that the record indicates, and as the Court noted
above, the plaintiff submitted prescription reporting forms for his use of Adderall to WMATA on
October 9, 2010, see id., ECF No. 84-46, Ex. 106 (Prescription Reporting Form), on November
10, 2010, see id., ECF No. 84-47, Ex. 110 (Prescription Reporting Form), on December 10,
27
2010, see id., ECF No. 84-48, Ex. 111 (Prescription Reporting Form), and on January 11, 2011,
see id., ECF No. 83-11, Ex. 22 (Prescription Reporting Form).
Furthermore, the plaintiff was terminated because he was purportedly non-compliant with
the terms of his Employee Assistance Program contract due to his alleged representation during a
surveillance testing that he was going to resume taking Adderall. As previously noted, the
parties dispute this fact, but even so, the Employee Assistance Program contract does not
indicate that it is a violation to inquire about or suggest the intended use of a prescribed
medication; the contract only provides that the participant is required “to inform the [Employee
Assistance Program] Office and treatment program (before testing) of all drugs being taken,
including those prescribed by a licensed physician . . . [and] to abstain from alcohol or illegal
drugs during [his] [Employee Assistance Program] participation.” Id., ECF No. 84-24, Ex. 65
(WMATA Employee Assistance Program Participation Requirements). Nevertheless, the
plaintiff was referred to the Joint Labor Management Committee for non-compliance.
The Court also finds the transcript from the Committee’s hearing problematic in multiple
respects. Primarily, the Committee was chaired by defendant Cooper-Lucas, who had a tenuous
working relationship with the plaintiff, see generally Defs.’ Mem., ECF No. 78-6, Ex. B
(Committee Transcript) at 38-39, and who prior to the plaintiff entering the room, made it clear
to the Committee that the use of Adderall was prohibited by federal regulations, see id. at 43, that
the plaintiff had never submitted any prescription reporting forms for his use of Adderall in
accordance with WMATA’s policy, id. at 43-44, and that the plaintiff’s “behavior suggests that
he’s addicted to [Adderall,]” id. at 39. The transcript also contains numerous factual
inaccuracies and discrepancies, see id. at 44 (identifying Adderall as a type of Benzodiazepines),
28
see also id. at 38 (misstating the timing of when certain safety incidents occurred in relation to
plaintiff’s use of Adderall), that may have clouded the judgment of the Committee members and
contributed to the Committee concluding that administrative action, and specifically termination,
was warranted, see id. at 70. The transcript also shows that the plaintiff was constantly
interrupted and never given an adequate opportunity to defend himself or present evidence to
support his arguments and actions. See id. at 45-56, 70.
Moreover, WMATA has not credibly identified any safety-related incident to support its
proffer of safety-related considerations as their legitimate, non-discriminatory reasons for the
actions it took. As discussed above, the only incident it relies upon is the plaintiff’s on-the-job
injury that occurred two days after the plaintiff informed WMATA that he would cease taking
Adderall. But, as the medical review officer noted, there is a genuine question as to whether the
plaintiff continued taking Adderall or whether the Adderall was still traceable in the plaintiff’s
urine from prior usage. See Pl.’s Opp’n, ECF No. 84-19, Ex. 56 (January 31, 2011 Verification
Worksheet). Consequently, in light of the considerable evidence produced by the plaintiff, the
Court finds that a reasonable fact-finder could conclude that the defendant’s proffer of safety-
related considerations for its employment-related actions it took against the plaintiff was
pretextual and that the defendant’s actions were more likely motivated by retaliation. However,
the plaintiff’s claim for summary judgment is also precluded because there exists a genuine
question as to whether the plaintiff’s use of Adderall raised legitimate safety concerns.
Accordingly, the Court declines to grant the plaintiff or the defendants summary judgment on the
plaintiff’s retaliation claim.
29
C. The Plaintiff’s Defamation Claim against the Individual Defendants
The individual defendants request summary judgment on the plaintiff’s common law
defamation claim on the grounds that it is time-barred; that they are immune from the claim
pursuant to the WMATA Compact; and that it fails on the merits. See Defs.’ Mem. at 16-23;
Defs.’ Reply at 3-6. The Court will address each argument in turn.
1. Timeliness
Under District of Columbia law, “[a] claim for defamation must be filed within one year
of accrual of the cause of action.” Maupin v. Haylock, 931 A.2d 1039, 1041-42 (D.C. 2007);
D.C. CODE § 12-301(4) (2012). Akin to the parties’ submissions at the motion to dismiss stage,
they acknowledge that this is the applicable limitations period for the plaintiff’s defamation
claim, but continue to dispute when the claim accrued. The individual defendants assert that the
claim accrued in March 2011 when the plaintiff became aware of the alleged defamatory
statements the individual defendants made at the Committee hearing, and that the claim is
therefore time-barred because the plaintiff filed this case more than a year later in June 2012.
Defs.’ Mem. at 22. The plaintiff responds that he did not learn of the alleged defamatory
statements “prior to being given the [Committee hearing] transcripts” on or about July 5, 2011,
and that this should be the accrual date for his defamation claim, thus making his claim timely.
Pl.’s Opp’n at 38.
“As a general rule, ‘[w]here the fact of an injury can be readily determined, a claim
accrues for purposes of the statute of limitations at the time the injury actually occurs.’” Mullin
v. Wash. Free Weekly, Inc., 785 A.2d 296, 298 (D.C. 2001) (citation omitted). Consistent with
this rule, a defamation claim typically accrues, “and the one-year limitations period beg[ins] to
30
run, at the time the allegedly defamatory statement [is] published.” Maupin, 931 A.2d at 1042.
“But when ‘the relationship between the fact of injury and the alleged tortious conduct [is]
obscure,’” the District of Columbia Court of Appeals has applied what is known as the
“discovery rule,” which provides that “the statute of limitations will not run until plaintiffs know
or reasonably should have known that they suffered injury due to the defendants’ wrongdoing.”
Mullin, 785 A.2d at 298-99 (citation omitted). And, as the Court previously outlined, the
discovery rule may be applied to defamation claims other than those of the mass media context.
See McFadden, 949 F. Supp. 2d at 221-22 (discussing a federal court’s mandate to resolve an
issue of undecided state law according to the rule it believes the “state’s highest court is likely to
adopt in the not too distant future” and holding that the District of Columbia Court of Appeals
would apply the discovery rule based on the facts of this case) (citations omitted). Under the
discovery rule, the plaintiff need “not know the precise content of [the alleged defamatory]
statements[, so long as] he had sufficient knowledge that an allegedly defamatory statement was
made, of its publication . . . and of some injury resulting from the statements.” Stith v.
Chadbourne & Parke, LLP, 160 F. Supp. 2d 1, 7 (D.D.C. 2001) (citing Wallace v. Skadden,
Arps, Slate, Meagher & Flom, 715 A.2d 873, 882-83 (D.C. 1998) (“In National Railroad
Passenger Corporation v. Krouse, 627 A.2d 489, 497-98 (D.C. 1993), we held that once the
plaintiff has been placed on notice of an injury and of the role of the defendants’ wrongful
conduct in causing it, the policy disfavoring stale claims makes application of the [discovery
rule] inappropriate.”)).
Here, granting the individual defendants summary judgment on the grounds that the
statute of limitations bars the plaintiff’s defamation claim is precluded because there is at least a
31
genuine dispute of material fact as to when the plaintiff knew or should have known that the
individual defendants’ alleged defamatory statements caused his purported injury. The
individual defendants argue that the defamation claim is time-barred based on the following: (1)
in the plaintiff’s March 18, 2011 email to Local 689 official J. Madaras, the plaintiff’s union
representative, he complained about Mr. Madaras’ actions and representation provided during
the Committee hearing, and also “referred to [defendant] Cooper-Lucas’ ‘[c]laim that [he] never
turned in prescription [sic] despite filing a grievance and an accident appeal” and stated “I don’t
[believe] fighting for my rights displays addiction,” see Defs.’ Mem. at 22 (citations omitted);
(2) the plaintiff’s allegation that he was “attacked in the [Committee hearing] for being
addicted[,]” id. (citing the Am. Compl. ¶ 62); and (3) the plaintiff’s subsequent meeting with Mr.
Madaras, when Mr. Madaras told the plaintiff that “his action[s] were predicated on information
that he was given prior to [the] Plaintiff entering the room,” id. at 23 citing (Am. Compl. ¶ 131).
According to the individual defendants, these statements show that the plaintiff was aware and
knew of the nature of the alleged defamatory statements for more than a year before he filed his
complaint. Id. at 22-23.
For the following reasons, the Court is not persuaded from these facts that the plaintiff
was put on notice of an injury and of the role of the individual defendants’ purported wrongful
conduct in causing it. First, the plaintiff’s statements in his March 18, 2011 email to Mr.
Madaras and his allegation of being attacked for being an addict during the Committee hearing,
were conceivably direct responses to Mr. Madaras’ question during the Committee hearing,
wherein he asked the plaintiff “don’t you think you are addicted to [Adderall]?” See Defs.’
Mem., ECF No. 78-6, Ex. B (Committee Transcript) at 65-66. In light of this line of questioning
32
from the Committee, it is plausible that the plaintiff did not have knowledge of the individual
defendants’ allegedly defamatory statements. Second, defendant Cooper-Lucas’ statement to the
plaintiff during the Committee hearing that, “if you’ve got proof that you’ve submitted any
prescription reporting forms, please produce that[,]” id. at 60, plausibly suggested only that it
was her belief that the plaintiff had not submitted any prescription reporting forms. Finally, Mr.
Madaras’ statement during his subsequent meeting with the plaintiff does not suggest that he
alerted the plaintiff as to the nature of the allegedly defamatory statements, but merely explains
the basis for his actions taken during the meeting. None of these facts indicate that the plaintiff
had sufficient knowledge of the allegedly defamatory statements until he received a copy of the
Committee hearing transcripts on or about July 5, 2011. Accordingly, the Court declines to grant
the defendants’ motion for summary judgment on the grounds that the plaintiff’s defamation
claim was untimely filed.
2. Immunity under the WMATA Compact
The individual defendants next argue that they are immune from the plaintiff’s
defamation claim pursuant to the interstate compact creating WMATA. Defs.’ Mem. at 4.
“Section 80 of the Compact waives [WMATA’s sovereign] 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 v. Wash. Metro. Area Transit Auth.,
129 F.3d 1283, 1287 (D.C. Cir. 1997) (quoting D.C. CODE ANN. § 1-2431(80) (2010)). Section
80 of the WMATA Compact also “provides that the ‘exclusive remedy’ for any action for which
WMATA is liable ‘shall be by suit against the Authority’”; thus, “for torts committed in the
course of proprietary or ministerial functions, WMATA is liable and its employees immune.” Id.
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at 1288 (quoting D.C. Code § 1-2431(80)). Further refining this rule, the District of Columbia
Circuit in Beebe held that WMATA employees “enjoy absolute immunity from state-law tort
actions when the conduct at issue falls ‘within the scope of their official duties and the conduct is
discretionary in nature.’” Id. at 1289 (quoting Westfall v. Erwin, 484 U.S. 292, 297-98 (1988)).
“[T]he burden of establishing immunity [is] on the official.” Id. (citing Westfall, 484 U.S. at
299).
The plaintiff contends that the individual defendants 7 acted beyond the outer limits of
their official duties when they made certain defamatory statements about him before he entered
the room for the Committee hearing. Pl’s Opp’n at 25-32; see also Am. Compl. ¶¶ 201-02 (e.g.,
alleged statements that: “Plaintiff abused Adderall; his actions suggested that he was addicted to
Adderall; Plaintiff was aggressive and violent in his EAP hearing; Plaintiff failed a company
drug test; Plaintiff never reported his prescription for Adderall to WMATA at any time”). The
plaintiff also argues that the individual defendants’ determinations were not discretionary but
“were malicious and salacious attacks” on him. Pl’s Opp’n at 31. The individual defendants
respond that because of “WMATA’s safety interests in monitoring employees, like [the
p]laintiff, who were in a safety sensitive position,” it was not only within their official duties “to
make determinations regarding whether an employee’s use of a medication was in accordance
with WMATA and/or DOT requirements,” but that they also “had the right—indeed the duty—to
communicate with each other regarding an employee’s use of prescription medication.” Defs.’
7
The plaintiff does not allege any specific defamatory statements made by defendant John Coleman; he alleges only
that Mr. Coleman “made, repeated, and wrote disparaging statements about [him] when he terminated [him].” Am.
Compl. ¶ 203. Without specifically pleading what Mr. Coleman allegedly said, the Court is unable to assess
whether defendant Coleman’s statements were made within the scope of his official duties and the level of discretion
he used when making those statements. Therefore, because the plaintiff does not specifically identify the statements
made by defendant Coleman that were allegedly defamatory, defendant Coleman is entitled to summary judgment.
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Mem. at 21. Moreover, they contend that their determinations “were discretionary in nature
[because they] reflected their professional assessment of [the p]laintiff’s situation,” id., while
attempting to “comply with federal standards and WMATA practice.” Defs.’ Reply at 9.
To support their position, the individual defendants rely on the court’s discussion in
Beebe, where the court upheld the dismissal of the plaintiff’s defamation claim based on its
finding that the plaintiff’s contention that the challenged statements were motivated by personal
animus, was “conclusory,” and because the plaintiff “failed to allege [that his supervisor] acted
outside the scope of [his] official duties.” Beebe, 129 F.3d at 1289. Moreover, the court found
that the plaintiff’s supervisor’s actions were discretionary “as they involved a large measure of
choice.” Id. However, the court noted that
not all intentional or malicious torts committed in the normal course of employment
necessarily fall within the scope of official duties. Officials exceed the outer
perimeters of their responsibilities, and act manifestly beyond their line of duty, for
example when they resort to physical force to compel the obedience of their
managerial subordinates . . . or when they use false threats of criminal charges to
coerce an employee into resigning.
Id. (citations omitted).
The individual defendants also assert that the Fourth Circuit’s decision in Martin v.
Wood, 772 F.3d 192 (4th Cir. 2014) supports their position. Defs.’ Reply at 10. In that case, the
plaintiff alleged that her employer failed to compensate here for overtime hours she worked
because her supervisors, who were the only defendants in the case, refused to authorize such
compensation. See Martin, 772 F.3d at 196. Since the plaintiff did not allege that her
supervisors “acted in an ultra vires manner or attempted to serve personal interests distinct from
the [employer’s] interests,” the Fourth Circuit reversed the district court’s ruling denying the
supervisors’ dismissal motion based on sovereign immunity because “virtually every factor
35
indicates that [the supervisors were] being sued in their official capabilities” and the supervisors’
actions were “inextricably tied” to their official duties.” Id.
The Court is not persuaded that the reasoning in Martin is applicable to this case. In
Martin, the plaintiff’s complaint included only allegations that her supervisors “acted directly
and indirectly in the interest of [the employer],” but without any allegations of a personal
animus, the court found that the Commonwealth of Virginia was the “real party in interest” that
the plaintiff was seeking to hold accountable. See id. (“In these circumstances, we hold that
Virginia is the real party in interest, and that sovereign immunity—grounded in the Eleventh
Amendment—requires dismissal of the suit.” (citations omitted)). Here, the plaintiff alleges that
the individual defendants acted in a malicious or ultra vires manner outside their official
capacities when they allegedly made defamatory statements against him. Nonetheless, the Court
finds the Circuit’s holding in Beebe applicable and similarly concludes that the individual
defendants are entitled to sovereign immunity because they made the allegedly defamatory
statements while acting within the scope of their official duties and because their determinations
about the plaintiff’s actions and his use of Adderall were discretionary in nature.
Defendant Cooper-Lucas, when the allegedly defamatory statements were made, was the
Manager of the Medical Services and Compliance Branch, and in that capacity, was responsible
for ensuring that WMATA and its employees were in “compliance with Federal law” and, to
achieve this end, “manage[d], direct[ed], and evaluate[d] [WMATA’s] medical services branch
and administers all [WMATA] medical, employee assistance and compliance operations
programs.” Pl.’s Opp’n, ECF No. 84, Ex. 27 (WMATA Job Description for Manager of Medical
Services). Because the Joint Labor Management Committee is an integral part of WMATA’s
36
employee assistance and compliance programs, defendant Cooper-Lucas, as the Manager, would
be expected to participate in the Committee process. In addition, defendant Ron Kelly is an
Employee Assistance Counselor who was tasked with “providing clinical services including
assessment, referral, [and] case management . . . for all employees referred to the [Employee
Assistance Program,]” as well as “prepar[ing] [a] chronology of events as needed for the
[Committee] on employees who request a review of their case before the [C]ommittee.” Id.,
ECF No. 84-8, Ex. 38 (WMATA Job Description for Employee Assistance Counselor).
Defendant Kelly was the plaintiff’s assigned Employee Assistance Program counselor and
worked directly with the plaintiff throughout the plaintiff’s participation in the program. See id.,
ECF No. 82-8, Assessment Intake. Undoubtedly, because of his role as the assigned Employee
Assistance Program counselor, defendant Kelly would have first-hand knowledge of the
plaintiff’s actions during his participation in the employee assistance program that would be
critical to the Committee’s fact-finding and evaluation of the plaintiff’s compliance with the
program. See id. Also, defendant Cooper-Lucas was closely involved in WMATA’s medical
department’s assessment of the plaintiff’s use of Adderall, see Defs.’ Mem, ECF No. 78-6, Ex. A
(March 30, 2011 Mem.), and would therefore have critical background information about the
plaintiff prior to his enrollment in the Employee Assistance Program that would aid in the
Committee’s decision-making process. Thus, participation by both defendants Cooper-Lucas
and Kelly at the Committee hearing was within their official duties as defendant Cooper-Lucas
was required to coordinate the Committee process and defendant Kelly, as the counselor who
assessed the plaintiff, was required to provide the Committee with the essential facts about the
plaintiff’s performance in the Employee Assistance Program.
37
Furthermore, when making the allegedly defamatory statements, the individual
defendants’ were exercising discretion integral to WMATA’s obligation of ensuring that its
employees in safety-sensitive positions comply with federal regulations governing the use of
prohibited controlled substances for the benefit of not only its passengers but also its employees.
Although the individual defendants were not entirely accurate on the state of the law when they
made their statements, they only provided the Committee with determinations based on their
training, education, prior experiences, and assessment of the plaintiff’s medical history. In fact,
the individual defendants were careful to include language that qualified their professional
assessment, which undermines the plaintiff’s position that their opinions were made with malice.
See Defs.’ Mem., ECF No. 78-6, Ex. B (Committee Transcript) at 39 (the plaintiff’s “behavior
suggests that he[] [is] addicted to [Adderall] . . . if [he] take[s] excessive amounts of it, which I
don’t know that he has, but his physical presentation oftentimes gives the appearance of jittery
shaking, he’s very aggressive in his stance and demeanor.”). Safety being a fundamental
obligation a mass transit authority like WMATA owes to both its customers and employees,
employees in positions similar to those of the individual defendants demand candid commentary
on an employee’s use of prescribed medication, particularly when a question arises concerning
whether use of the medication endangers safety.
Because the individual defendants were acting within the scope of their official duties
when their statements were made and their determinations were discretionary in nature, their
statements about the plaintiff are protected by sovereign immunity. Accordingly, the Court
grants the defendants’ motion for summary judgment of the plaintiff’s defamation claim lodged
38
against the individual defendants, rendering it unnecessary to address the merits of the plaintiff’s
defamation claim.
D. The Plaintiff’s Civil Conspiracy Claim
The defendants next argue that the Circuit’s holding in Nader v. Democratic National
Committee, 567 F.3d 692, 697 (D.C. Cir. 2009) requires the granting of summary judgment on
the plaintiff’s civil conspiracy claim. Defs.’ Mem. at 23. The defendants are correct, and
accordingly, the plaintiff’s civil conspiracy claim must be dismissed.
As the Court earlier explained, in the District of Columbia, “[c]ivil conspiracy is not an
independent tort but only a means for establishing vicarious liability for an underlying tort.”
Nader, 567 F.3d at 697 (quoting Hill v. Medlantic Health Care Grp., 933 A.2d 314, 334 (D.C.
2007) (internal quotation marks omitted); see also Order at 7 (Apr. 14, 2011), ECF No. 38.
Therefore, a claim of civil conspiracy fails unless the elements of the underlying tort are
satisfied. Nader, 567 F.3d at 697 (citing Exec. Sandwich Shoppe, Inc. v. Carr Realty Corp., 749
A.2d 724, 738 (D.C. 2000)). “Indeed, because its only purpose is to spread liability for a
successful tort claim to all agreeing parties regardless of whether they actually committed the
tortious act, a civil conspiracy claim incorporates not only every substantive elements of the
underlying tort, but also its statute of limitations.” Id. (citing Diamond v. Davis, 680 A.2d 364,
366 n.4 (D.C. 1996)). Here, sovereign immunity precludes the plaintiff’s defamation claim,
which is the underlying tortious act serving as the predicate for the plaintiff’s civil conspiracy
claim. See Banneker Ventures, LLC v. Graham, 798 F.3d 1119, 1145 (D.C. Cir. 2015)
(remanding the proceedings back to the district court to “evaluate whether the actions that it
concludes would not be immunized, taken together, state a claim against [the individual
39
defendant] for tortious interference or civil conspiracy.”); see also Smalls v. Emanuel, 840 F.
Supp. 2d 23, 34-36 (D.D.C. 2012) (holding that the plaintiff’s civil conspiracy claim fails
because all of the underlying torts failed, including the plaintiff’s defamation claim which
sovereign immunity precluded). Consequently, the plaintiff’s civil conspiracy claim cannot
survive either. Accordingly, the Court grants defendants’ motion for summary judgment of the
plaintiff’s civil conspiracy claim.
IV. CONCLUSION
For the foregoing reasons, the plaintiff’s motions to strike and for sanctions are denied.
The plaintiff’s cross-motion for summary judgment is also denied. On the other hand, the
defendants’ motion for summary judgment is granted in part and denied in part. Specifically, the
motion is granted insofar as the plaintiff’s defamation claim against the individual defendants is
dismissed with prejudice and the plaintiff’s civil conspiracy claim against the individual
defendants is also dismissed with prejudice. However, the motion is denied in all other respects.
SO ORDERED this 2nd day of September, 2016. 8
REGGIE B. WALTON
United States District Judge
8
The Court will contemporaneously issue an Order consistent with this Memorandum Opinion.
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