                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
________________________________
                                 )
STEPHEN E. McMILLAN,             )
                                 )
               Plaintiff,        )
                                 ) Civil Action No. 10-1867 (EGS)
          v.                     )
                                 )
WASHINGTON METROPOLITAN          )
AREA TRANSIT AUTHORITY,          )
                                 )
               Defendant.        )
                                )


                        MEMORANDUM OPINION

     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
                                                            
              1
       Because Plaintiff’s Complaint does not contain numbered
paragraphs or counts, the Court will refer to page numbers,
where applicable.
              2
        As a WMATA employee, Plaintiff is represented by Local
689 of the Amalgamated Transit Union. See Def.’s Mot. Summ. J.,
Affidavit of Brian J. Donohoe ¶ 3; McMillan Dep. at 51:5-11.
                                                                  2 
 
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



                                  3 
 
(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,


                                                            
              3
                    The Court notes that there is some confusion in the record
regarding the year in which Plaintiff was terminated by WMATA.
Both Plaintiff’s Complaint and Defendant’s Statement of Material
Facts state that Plaintiff was terminated in December 2009. See
Compl. at 2; Def.’s SMF ¶ 4. However, Defendant’s Memorandum in
Support of its Motion for Summary Judgment, as well as the
termination letter attached to Defendant’s motion and
Plaintiff’s deposition transcript, reflect that the termination
occurred in December 2008. See Def.’s Mem. of P&A in Supp. of
Mot. for Summ. J. (“Def.’s Mem.”) at 1, 6; Lacosse Aff. Ex. 1;
McMillan Dep. 9:19-10:19. Because the Court finds that the date
of Plaintiff’s termination is not material to the resolution of
the instant motion, the Court will assume for purposes of this
Opinion that Plaintiff was terminated in December 2008.
                                                                          4 
 
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.     See Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477

U.S. 317, 325 (1986); Waterhouse v. Dist. of Columbia, 298 F.3d

                                     5 
 
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 (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.    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 (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.     See Fed. R. Civ. P. 56(c)(1); Celotex, 477

U.S. at 324.   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

                                   6 
 
F. Supp. 2d 40, 50 (D.D.C. 2010), aff’d, 473 F. App’x 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 [non-

movant].”    Anderson, 477 U.S. at 252.

     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 (1972)).

III. ANALYSIS

     A.     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 .


                                   7 
 
. . 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 for “claims that

should have been submitted to arbitration, even if they were not

actually heard.”   Sanders, 819 F.2d at 1157 (citation omitted).

     Plaintiff’s claims that another employee was denied bonus

money and that Plaintiff was discharged without a hearing are

properly construed as labor disputes, rather than discrimination

claims.   Even assuming McMillan attempted to grieve his

                                 8 
 
termination,4 this claim was never submitted to arbitration.

McMillan does not allege that he ever attempted to grieve the

claims related to bonus money.                                          As the D.C. Circuit stated in

Sanders, “under settled law, [] WMATA employees who failed to

exhaust the grievance and arbitration proceedings, available to

them, may not seek redress in court on claims that could and

should have been grieved.”                                           Id. at 1158 (citations omitted).

This rule amounts to a form of collateral estoppel, or issue

preclusion, prohibiting non-grieved complaints from being

brought when, as here, Plaintiff had the opportunity and the

obligation to do so.                                           See Chester v. WMATA, 335 F. Supp. 2d 57,

64 (D.D.C. 2004).                                       Because Plaintiff’s labor disputes were

either never grieved or never submitted to arbitration, they are

not properly before the Court.

              Furthermore, WMATA is immune from suit based upon

Plaintiff’s constitutional claims.                                            In signing the WMATA

Compact, Maryland, Virginia, and the District of Columbia

conferred upon WMATA their respective sovereign immunities.                                                See

Morris v. WMATA, 781 F.2d 218, 219-20 (D.C Cir. 1986).                                               The

Court construes Plaintiff’s constitutional claims as claims


                                                            
              4
       Although WMATA’s records indicate that McMillan never
pursued a grievance related to his termination, McMillan alleged
in his deposition that he filed a grievance, and it was denied.
See McMillan Dep. at 47:16-50:5. Therefore, construing the
facts in the light most favorable to Plaintiff, the Court
assumes he attempted to grieve his termination.
                                                                         9 
 
under 42 U.S.C. § 1983.   See Morris v. WMATA, 702 F.2d 1037,

1041-42 (D.C. Cir. 1983) (“Morris’ free speech claim relies

directly on the First Amendment as the source of the remedy

sought. . . . [W]e treat Morris’ claim . . . as if it were an

action under section 1983.”).    Numerous courts in this District

have held that WMATA is immune from suit under Section 1983.

See, e.g., Sanders, 819 F.2d at 1152-53; Headen v. WMATA, 741 F.

Supp. 2d 289, 294 (D.D.C. 2010) (“WMATA’s sovereign immunity

means that [it] cannot be sued under § 1983.”); Disability

Rights Council v. WMATA, 239 F.R.D. 9, 20 (D.D.C. 2006) (same);

Lucero-Nelson v. WMATA, 1 F. Supp. 2d 1, 7-8 (D.D.C. 1998)

(same); see also Will v. Mich. Dep’t of State Police, 491 U.S.

58, 70-71 (1989) (holding that an arm of state is not a “person”

subject to suit under section 1983, pursuant to the Eleventh

Amendment).   WMATA is therefore immune from Plaintiff’s

constitutional claims.

     Defendant concedes that the grievance procedures cannot bar

true discrimination claims.     See Def.’s Mem. at 9.   Even

construing Plaintiff’s claims in the light most favorable to him

and assuming they state claims under Title VII, the Court

concludes that Plaintiff failed to exhaust his administrative

remedies and alternatively, that Defendant is entitled to

judgment as a matter of law with respect to the Title VII

claims.

                                  10 
 
     B.   Exhaustion of Administrative Remedies

     Defendant argues that Plaintiff failed to exhaust his

administrative remedies with respect to several of his claims.

Def.’s Mem. at 10-13.   Plaintiff again fails to respond to this

argument, and therefore, the Court could treat it as conceded.

However, even construing all of the allegations in Plaintiff’s

Complaint and responses in the light most favorable to him, the

Court finds that Plaintiff has failed to exhaust his

administrative remedies.

     Before suing under Title VII, an aggrieved party must first

file a charge of discrimination with the EEOC within 180 days of

the alleged discriminatory incident.   42 U.S.C. § 2000e-5(e)(1);

see Washington v. WMATA, 160 F.3d 750, 752 (D.C. Cir. 1998),

cert. denied, 527 U.S. 1038 (1999).    An employee must exhaust

the administrative process for each discrete act for which he

seeks to bring a claim.    See Nat’l R.R. Passenger Corp. v.

Morgan, 536 U.S. 101, 113-14 (2002).   In addition, in filing a

civil action in district court following an EEO charge, an

employee may only file claims that are “like or reasonably

related to the allegations of the [EEO] charge and grow[] out of

such allegations.”   Park v. Howard Univ., 71 F.3d 904, 907 (D.C.

Cir. 1995) (citation omitted).   “Although it is true that the

administrative charge requirement should not be construed to

place a heavy technical burden on ‘individuals untrained in

                                 11 
 
negotiating procedural labyrinths,’” id. (citation omitted), “it

is also true that the requirement of some specificity in a

charge is not a mere technicality,” id. (internal quotation

marks and citation omitted).

     In his Complaint, Plaintiff alleges (1) that in November

1999, he inquired about a bonus owed to a co-worker; (2) that

around December 2000, he was denied advancement opportunities in

favor of female employees; (3) that in April 2002, he attempted

to file a discrimination complaint with WMATA’s Office of Civil

Rights but was denied; (4) that in May 2007, he attempted to

file a complaint with WMATA’s Inspector General’s Office but was

denied; and (5) that he was terminated without a hearing in

December 2008.   Plaintiff filed his charge with the EEOC on July

28, 2008.   See Def.’s SMF ¶ 2; McMillan Dep. Ex. 4.   With the

exception of his termination, all of the other claims in

Plaintiff’s Complaint relate to acts that occurred more than 180

days prior to the filing of his EEOC charge of discrimination.

These claims are therefore time-barred by the 180-day statutory

period for filing an administrative claim.   The Court therefore

concludes that Defendant is entitled to summary judgment on

Plaintiff’s claims related to (1) the November 1999 bonus

inquiry, (2) the December 2000 advancement opportunities, (3)

the April 2002 complaint, and (4) the May 2007 complaint.



                                12 
 
     C.   Plaintiff’s Discrimination Claims

     With respect to Plaintiff’s termination, Defendant offers a

legitimate, non-discriminatory explanation for its disciplinary

action against Plaintiff.   See Def.’s Mem. at 13-16.

     Employers are forbidden “from discriminat[ing] against an

employee or job applicant because that individual opposed any

practice made unlawful by Title VII or made a charge, testified,

assisted, or participated in a Title VII proceeding or

investigation.”   Burlington N. & Santa Fe Ry. Co. v. White, 548

U.S. 53, 56 (2006) (internal quotation marks and citation

omitted); see also Montgomery v. Chao, 546 F.3d 703, 706 (D.C.

Cir. 2008); 42 U.S.C. § 2000e-3(a).     Retaliation claims brought

pursuant to Title VII are assessed under the burden-shifting

framework set out by the Supreme Court in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973).     See Jones v. Bernanke, 557

F.3d 670, 677 (D.C. Cir. 2009).    Pursuant to that framework, the

plaintiff has the initial burden of proving, by a preponderance

of the evidence, a prima facie case of retaliation.      Id.   To

establish a prima facie case of retaliation, the plaintiff must

show that (1) he engaged in statutorily protected activity; (2)

he suffered a materially adverse action by his employer; and (3)

a causal connection existed between the two.     Id.   Once the

plaintiff has established a prima facie case, “the burden shifts

to the defendant ‘to articulate some legitimate,

                                  13 
 
nondiscriminatory reason for the [action in question].’”                                        Wiley

v. Glassman, 511 F.3d 151, 155 (D.C. Cir. 2007) (quoting Tex.

Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)).

In asserting a legitimate, non-discriminatory explanation, the

defendant “need not persuade the court that it was actually

motivated by the proffered reasons.                                        It is sufficient if the

defendant’s evidence raises a genuine issue of fact as to

whether it discriminated against the plaintiff.”                                        Burdine, 450

U.S. at 254 (internal citation omitted).                                       The burden then shifts

back to the plaintiff to demonstrate that the asserted reason is

pretextual.                           See id. at 253.            The plaintiff at all times retains

the burden of persuasion.                                      Id.

              At the summary judgment stage, once the defendant provides

a legitimate, non-discriminatory explanation, “the district

court need not -- and should not -- decide whether the plaintiff

actually made out a prima facie case under McDonnell Douglas.”

Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 494 (D.C.

Cir. 2008).5                            Rather, the sole inquiry becomes whether the

plaintiff produced “sufficient evidence for a reasonable jury to

find that the employer’s asserted non-discriminatory reason was

not the actual reason and that the employer intentionally

discriminated against the [plaintiff] on [a prohibited basis].”
                                                            
              5
       Although Brady involved a race discrimination claim, the
D.C. Circuit also applies Brady’s framework to retaliation
claims. See Jones, 557 F.3d at 678-79.
                                                                     14 
 
Id.; see also Jones, 557 F.3d at 678.       In other words, the

McDonnell Douglas burden-shifting framework essentially

disappears and the only remaining issue is whether the employer

discriminated against the employee.       In evaluating whether the

plaintiff defeats summary judgment, the Court considers all the

relevant circumstances in evidence, including the strength of

the prima facie case, any direct evidence of discrimination, any

circumstantial evidence that defendant’s proffered explanation

is false, and any properly considered evidence supporting the

employer’s case.     See Jones, 557 F.3d at 677, 679.

        Even assuming McMillan has stated a prima facie case of

retaliation, Defendant asserts a legitimate, non-discriminatory

explanation for its discipline and termination of Plaintiff.       In

particular, as the termination letter states, McMillan was

placed on administrative leave pending the outcome of an

investigation regarding maintenance he performed on an escalator

unit.     See Lacosse Aff. Ex. 1, at 1.    The investigation

concluded that McMillan had been negligent in his performance of

maintenance and that he had reported inaccurate data to

Management, which was a violation of Metro’s Metrorail Safety

Rules and Procedures, as well as Metro’s Department of

Operations Office of Elevator and Escalators Safety Maintenance

Practices and Procedures.     Id.   In addition, the termination

letter noted that, during the past twenty-two months, McMillan

                                    15 
 
had been involved in several incidents resulting in disciplinary

actions, including (1) a written warning in February 2007 for

addressing a dispatcher with vulgar language; (2) a one-week

suspension for insubordinate behavior in May 2007; (3) a two-

week suspension for tardiness, addressing a supervisor with

vulgar language, and insubordinate behavior in November 2007;

and (4) a two-week suspension for early departure from his work

location without permission in June 2008.      Id. at 2.   With

respect to the June 2008 suspension, Plaintiff acknowledged that

he left work prior to the end of his shift to drive to 7-11 to

get a cup of coffee.    McMillan Dep. 66:17-67:22.   Plaintiff

testified in his deposition that he was followed by two

“suspicious males,” and that he exceeded the speed limit and

drove 80 miles per hour in rush-hour traffic on I-395 until he

“shook them.”    McMillan Dep. 63:11-65:18; see also McMillan Dep.

Ex 3.     WMATA suspended Plaintiff for two weeks as a result of

this incident.    McMillan Dep. 70:20-22.

        The Court finds that WMATA has asserted a legitimate, non-

discriminatory explanation for its discipline and termination of

Plaintiff.    The burden therefore shifts to Plaintiff to

demonstrate that this explanation was a pretext for

discrimination.     Wiley, 511 F.3d at 155.   Plaintiff has

completely failed to do so.    In his responses, McMillan has made

only a single conclusory allegation -- unsupported by any record

                                  16 
 
evidence -- that Defendant’s proffered reasons were pretextual.

See Pl.’s Resp. to Def.’s Statement of Material Facts, Docket

No. 16, at 6 (“Plaintiff proffers legally sufficient evidence of

pretext.”).     This allegation, without more, is insufficient to

raise any issues of material fact that would preclude summary

judgment.     See Hastie v. Henderson, 121 F. Supp. 2d 72, 77

(D.D.C. 2000), aff’d, No. 00-5423, 2001 WL 793715 (D.C. Cir.

2001) (“To defeat a motion for summary judgment, a plaintiff

cannot create a factual issue of pretext with mere allegations

or personal speculation, but rather must point to ‘genuine

issues of material fact in the record.’” (citation omitted)).

The Court therefore concludes that no reasonable jury could find

that Defendant’s stated reasons for Plaintiff’s termination were

pretextual.

IV.   CONCLUSION

      For the foregoing reasons, Defendant’s Motion for Summary

Judgment is hereby GRANTED.     An appropriate Final Order will

accompany this Memorandum Opinion.


SIGNED:     Emmet G. Sullivan
            United States District Court Judge
            October 12, 2012




                                  17 
 
