McMillan v. Wash. Metro. Area Transit Auth.

898 F.Supp.2d 64

Stephen E. McMILLAN, Plaintiff,

v.WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, Defendant.

Civil Action No. 10–1867 (EGS).

United States District Court, District of Columbia.

Oct. 12, 2012.

Stephen E. McMillan, Alexandria, VA, pro se.

Gerard Joseph Stief, WMATA, Mark F. Sullivan, Washington Metropolitan Area Transit Authority, Washington, DC, for Defendant.

MEMORANDUM OPINION

EMMET G. SULLIVAN, District Judge.

Plaintiff Stephen McMillan, proceeding pro se, brings this action against the Washington Metropolitan Area Transit Authority (“WMATA”), alleging retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e–2 et seq. (“Title VII”), as well as violations of his First and Fourteenth Amendment rights. Pending before the Court is Defendant's Motion for Summary Judgment. Upon consideration of the motion, the responses and replies thereto, the applicable law, the entire record, and for the reasons set forth below, the Court will GRANT Defendant's Motion for Summary Judgment.

I. BACKGROUND

Plaintiff McMillan was hired by WMATA as an elevator and escalator technician on November 30, 1999. See Compl. at 1; ¹ Def.'s Statement of Material Facts Not in Dispute (“Def.'s SMF”) ¶ 1.² McMillan alleges that around the time he began his employment with WMATA, he inquired into the status and distribution of a bonus owed to another WMATA employee. Compl. at 1. McMillan alleges this inquiry “caused negative consequences [for] the remainder of [his] career.” Compl. at 1. McMillan also alleges that around December 2000, he was denied any advancement opportunity, and he observed a pattern whereby each administrative job opening was filled by a female employee without regard to time-in-service or time-in-grade. Compl. at 2. In April 2002, McMillan filed a complaint with WMATA's Office of Civil Rights alleging mismanagement and discrimination. Compl. at 2. McMillan alleges that WMATA officials were abusive and ignored his complaint. Compl. at 2. The Office of Civil Rights concluded that McMillan's claims did not involve allegations of discrimination and thus did not fall within the purview of Title VII. Compl. at 2; see also Def.'s SMF ¶ 3; McMillan Dep. Ex. 9. The Office of Civil Rights instead recommended that McMillan contact his union representative or department superintendent. See Def.'s SMF ¶ 3; McMillan Dep. Ex. 9.

In May 2007, McMillan attempted to file a complaint with WMATA's Inspector General's Office alleging fraud, waste and abuse. Compl. at 2. McMillan testified during his deposition that this complaint was based on the fact that the person who recruited Plaintiff in 1999 to work at WMATA never received a bonus for recruiting him. See Def.'s SMF ¶ 3; McMillan Dep. 80:15–82:1. McMillan alleges that his complaint was not allowed. Compl. at 2. Finally, McMillan states that “the intensity of the mobbing conducted by [WMATA] Officials over the next two years, resulted in the Plaintiff being discharged ... from employment at WMATA[ ] without a hearing (which includes the Agencies' Local # 689 Union Grievance process) and with continued incompetent or erroneous affidavit testimony or documentation by the Agencies [sic] Office of Civil Rights.” Compl. at 2–3.

WMATA terminated McMillan on December 3, 2008 following an investigation into preventive maintenance work he was supposed to have performed at the Pentagon Metrorail Station. See Def.'s SMF ¶ 4; see also Def.'s Mot. Summ. J., Lacosse Aff. Ex. 1 (December 3, 2008 Termination Letter).³ McMillan's termination letter also referenced several work-related incidents in the twenty-two months prior to his termination, including insubordinate behavior, addressing a female dispatcher with vulgar language, and early departure from his work location without permission. See Def.'s SMF ¶ 5; Lacosse Aff. Ex. 1. One of the incidents referenced in the termination letter occurred on May 8 or 9, 2008 when McMillan left work while on duty to get a cup of coffee from 7–11. See Def.'s SMF ¶ 6; McMillan Dep. 60:12–73:4. McMillan acknowledged that two men followed him, and that he drove 80 miles per hour in rush-hour traffic on I–395 until he “shook them.” See Def.'s SMF ¶ 6; McMillan Dep. 63:11–65:18; McMillan Dep. Ex 3.

McMillan filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission (“EEOC”) on July 28, 2008. See Def.'s SMF ¶ 2; McMillan Dep. Ex. 4. In the charge, McMillan alleged retaliation occurring from April 11, 2002 through June 10, 2008. In particular, McMillan stated:

I filed an internal Equal Employment Opportunity complaint in 4–2002 ... and since this time in 2002, I have been targeted and retaliated against. The retaliation intensified in 2007 after I filed a complaint of Fraud, Waste and Abuse with the Inspector General's office. I have been falsely accused of falsifying information, being late for work and departing work early. I believe that I have been retaliated against in violation of Title VII of the Civil Rights Act[.]

McMillan Dep. Ex. 4. The EEOC issued its “Dismissal and Notice of Rights” on August 31, 2010.

Plaintiff filed his Complaint in this action on November 2, 2010. Defendant filed a Motion for Summary Judgment on December 9, 2011, to which Plaintiff filed a response. On April 20, 2012, this case was transferred to the undersigned from another Judge on this Court. The Court entered an Order on April 23, 2012, informing Plaintiff of the Federal and Local Rules that apply to motions for summary judgment and directing Plaintiff to file a supplemental response, which Plaintiff did. The motion is now ripe for determination by the Court.

II. STANDARD OF REVIEW

Summary judgment should be granted only if the moving party has shown that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. SeeFed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Waterhouse v. Dist. of Columbia, 298 F.3d 989, 991 (D.C.Cir.2002). “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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). The moving party bears the initial burden of demonstrating the absence of genuine issues of material fact. See Celotex, 477 U.S. at 323, 106 S.Ct. 2548. In determining whether a genuine issue of material fact exists, the Court must view all facts in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Keyes v. Dist. of Columbia, 372 F.3d 434, 436 (D.C.Cir.2004).

The non-moving party's opposition, however, must consist of more than mere unsupported allegations or denials; rather, it must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for trial. SeeFed.R.Civ.P. 56(c)(1); Celotex, 477 U.S. at 324, 106 S.Ct. 2548. Moreover, “although summary judgment must be approached with special caution in discrimination cases, a plaintiff is not relieved of [his] obligation to support [his] allegations by affidavits or other competent evidence showing that there is a genuine issue for trial.” Adair v. Solis, 742 F.Supp.2d 40, 50 (D.D.C.2010), aff'd,473 Fed.Appx. 1 (D.C.Cir.2012) (internal quotation marks and citations omitted). “The mere existence of a scintilla of evidence in support of the [non-movant]'s position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmovant].” Anderson, 477 U.S. at 252, 106 S.Ct. 2505.

Where, as here, a plaintiff is proceeding pro se, “the Court must take particular care to construe the plaintiff's filings liberally, for such [filings] are held ‘to less stringent standards than formal pleadings drafted by lawyers.’ ” Cheeks v. Fort Myer Constr. Co., 722 F.Supp.2d 93, 107 (D.D.C.2010) (quoting Haines v. Kerner, 404 U.S. 519, 520–21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)).

III. ANALYSISA. Grievance Procedures Under Section 66 of the WMATA Compact and WMATA's Sovereign Immunity

Defendant argues that Plaintiff's allegations do not raise legally cognizable claims under either Title VII or the Constitution; rather, according to Defendant, Plaintiff alleges labor disputes for which Plaintiff's exclusive remedy was the grievance procedures of the collective bargaining agreement in light of Section 66 of the WMATA Compact. Def.'s Mem. at 7–10. Plaintiff does not address this argument in either of his responses to Defendant's motion. “It is well understood in this Circuit that when a plaintiff files an opposition to a motion ... addressing only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded.” Howard v. Locke, 729 F.Supp.2d 85, 87 (D.D.C.2010) (internal quotation marks and citation omitted). Although the Court could treat Defendant's arguments as conceded, the Court finds that even construing all of the allegations in Plaintiff's Complaint and responses in the light most favorable to him, Defendant is entitled to summary judgment with respect to those claims that are properly construed as labor disputes.

Section 66(c) of the WMATA Compact requires employees to submit all unresolved “labor disputes” to arbitration. D.C.Code Ann. 9–1107.01(66)(c); see also Beebe v. WMATA, 129 F.3d 1283, 1286–87 (D.C.Cir.1997); Sanders v. WMATA, 819 F.2d 1151, 1156–57 (D.C.Cir.1987) (holding that appellants had to submit claims for negligent termination to binding arbitration pursuant to Section 66(c) of the WMATA Compact). The law of this Circuit is clear: summary judgment is appropriate...