                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


 ROSE TURNER and JAMES W.
 WILLIAMS,

         Plaintiffs,

 v.

 WASHINGTON METROPOLITAN AREA                               Civil Action No. 09-812 (CKK)
 TRANSIT AUTHORITY,

 and

 CHARLES WALLINGTON, individually
 and in his official capacity,

         Defendants.


                                  MEMORANDUM OPINION
                                     (March 31, 2010)

       Plaintiffs, Rose Turner and her husband, James W. Williams, have filed the above-

captioned case against Defendants, the Washington Metropolitan Area Transit Authority

(“WMATA”) and Charles Wallington. Turner alleges that she was discriminated against on the

basis of her sex (female) and retaliated against for her participation in protected activity in

violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. In addition, she

asserts claims for intentional infliction of emotional distress and intentional infliction of mental

distress against both Defendants as well as claims for negligent training, supervision and

retention against WMATA only. Her husband and co-Plaintiff, Williams, asserts a claim for loss

of consortium against both Defendants.

       Presently before the Court is Defendant WMATA’s [3] Motion to Dismiss pursuant to
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), in which WMATA moves for dismissal

of Plaintiffs’ common law tort claims as well as their claims for punitive damages as alleged

against WMATA.1 Specifically, WMATA argues that it is immune from suit for its decisions

relating to the training, supervision and retention of its employees, such that this Court lacks

subject matter jurisdiction to entertain Plaintiffs’ common law tort claims to the extent they are

based on WMATA’s personnel decisions. Accordingly, WMATA urges that the Court dismiss

for lack of subject matter jurisdiction Turner’s claims for negligent training/supervision,

negligent retention, intentional infliction of emotional distress, and intentional infliction of

mental distress, as WMATA asserts that each of these claims seeks to challenge its discretionary

decisions regarding training, supervision and retention. In addition, WMATA contends that if

the Court dismisses Turner’s common law tort claims thereby leaving only her Title VII claims,

it must also dismiss her husband’s claim for loss of consortium as he cannot assert a derivative

tort claim under Title VII. Finally, WMATA asserts that it is also immune from Plaintiffs’

claims for punitive damages and therefore moves for dismissal of those claims for lack of subject

matter jurisdiction.

       Plaintiffs oppose WMATA’s motion insofar as it seeks dismissal of their common law

tort claims. They do not, however, oppose the motion with respect to their punitive damage

claims, conceding that such claims must be dismissed. See Pls.’ Opp’n, Docket No. [6], at 6



       1
          WMATA does not move for dismissal of Plaintiffs’ substantive claims of
discrimination and retaliation in violation of Title VII (except to the extent Plaintiffs seek
punitive damages for such alleged violations). Accordingly, Plaintiffs’ Title VII claims are not at
issue in this Memorandum Opinion. In addition, the Court notes that Defendant Wallington is
represented by separate counsel and has not joined Defendant WMATA’s motion; as such,
Plaintiffs’ claims against Wallington are not at issue either.

                                                  2
(“Plaintiff concedes to the striking of Plaintiff’s claim for punitive damages.”). Accordingly, as

Plaintiffs concede WMATA’s motion to the extent it moves for dismissal of their claims for

punitive damages, the Court shall GRANT Defendant WMATA’s [3] Motion to Dismiss as

conceded with respect to Plaintiffs’ punitive damages claims. This Memorandum Opinion

therefore focuses solely on WMATA’s arguments that it is immune from Plaintiffs’ common law

tort claims. The Court has conducted a searching review of WMATA’s motion and the parties’

responsive briefing, the relevant statutes, regulations, and case law as well as the record of this

case as a whole. For the reasons that follow, the Court shall GRANT WMATA’s Motion to

Dismiss with respect to Turner’s claims for negligent training, supervision and retention and

shall therefore DISMISS Counts IV and V in the Complaint for lack of subject matter jurisdiction

pursuant to Rule 12(b)(1). The Court, however, shall DENY WITHOUT PREJUDICE

WMATA’s Motion to Dismiss with respect to Counts II and III of the Complaint. In addition,

the Court shall GRANT WMATA’s [3] Motion to Dismiss with respect to Count VII insofar as

the claim is alleged against WMATA and is premised upon WMATA’s training, supervision and

retention decisions, but shall DENY WITHOUT PREJUDICE the motion insofar is it is

premised on Turner’s common law tort claims in Counts II and III, which remain extant.

WMATA may file a renewed motion to dismiss as to Counts II, III and VII only pursuant to the

schedule set forth in the accompanying Order.

                                        I. BACKGROUND

       A.      Factual Background

       WMATA is an agency created by an interstate compact as authorized by Congress

through Pub. L. No. 89-774 and is an instrumentality of Maryland, Virginia, and the District of


                                                  3
Columbia. See D.C. Code § 9-1107.01 et seq. As set forth in the Complaint, Plaintiff Rose

Turner is a former employee of WMATA, and she is joined as Plaintiff in this action by her

husband, James W. Williams. Complaint, Docket No. [1], ¶ 4. Turner began her employment

with WMATA in September of 2003 as a Maintenance Custodian. Id. ¶ 8. She was

subsequently promoted to Acting Custodial Maintenance Supervisor in March of 2007, in which

position she worked until her alleged constructive discharge from the agency on October 16,

2007. Id. Upon her promotion to the position of Acting Custodial Maintenance Supervisor,

Defendant Wallington, then-Assistant Superintendent for the Custodian Maintenance Department

on the Redline, became Turner’s immediate supervisor. Id. ¶ 10.

       As set forth in the Complaint, Turner alleges that beginning in April 2007 and continuing

until her separation from WMATA on October 16, 2007, Wallington made inappropriate sexual

comments and inappropriate sexual advances towards her. Id. ¶ 11. Specifically, Turner alleges

that in April or May of 2007, Wallington approached her while she was sitting at her work

station and proceeded to grab her breast against her will and without her permission. Id. ¶ 13.

Turner further alleges that at or around the same time period, Wallington asked her to “sit on his

face.” Id. ¶ 14. In addition, Turner alleges that at some unspecified time after April 2007,

Wallington grabbed Plaintiff by the mouth and placed his mouth over hers against her will and

without her permission. Id. ¶ 12.

       Turner states that immediately after each incident she addressed Wallington about his

inappropriate behavior; she made clear that he was not to touch her in that fashion and threatened

to report his actions. Id. ¶ 16. Turner alleges, however, that Wallington’s actions continued

unabated. Id. ¶ 17. According to Turner, Wallington eventually began to verbally threaten her,


                                                 4
including making threats to deny her promotions and to “blackball” her if she reported his

conduct. Id. ¶ 18. He also allegedly began making unwanted telephone calls to Turner that

consisted of “harassment and threats” and also made “unwanted comments” to her. Id. ¶¶ 19, 22.

In addition, Turner states that on or about May 2007, Wallington refused her request to be off

from work on the day of her birthday and instead required her to work more than 19 straight

hours; Turner alleges that Wallington refused her request for leave because she refused his

advances and objected to his conduct. Id. ¶ 21. Thereafter, Turner alleges that she continued to

be subjected to “constant telephone calls and threats” from Wallington. Id. ¶ 24. According to

Turner, this culminated in her constructive discharge from WMATA on October 16, 2007, as a

result of the “stress associated with her hostile work environment, threats and sexual overtones.”

Id. ¶ 25.

        Plaintiffs indicate that at some time in “late October 2007,” Turner reported Wallington’s

actions to WMATA’s Office of Civil Rights as well as to WMATA’s Employee Assistance

Program; no specific date is cited. Id. ¶ 23. Although no specific date is provided in the

Complaint, even drawing all favorable inferences in Plaintiffs’ favor, it appears from Plaintiffs’

own allegations that Turner did not officially report Wallington’s alleged conduct to WMATA

until after she left her position on October 16, 2007; in addition, while Plaintiffs indicate that

Turner complained to Wallington himself about his conduct and threatened to report him, there is

no allegation that she in fact reported Wallington or that she advised anyone at WMATA about

his conduct until she filed an official complaint in “late October 2007” — i.e., after she asserts

that she was constructively discharged.

        Separate from the specific allegations that Wallington engaged in harassing and


                                                  5
discriminatory behavior towards Turner during the period from April to October of 2007,

Plaintiffs allege generally that Wallington “had done prior acts of sexual assault and harassment

before” and that “he was reported [] to WMATA” for such conduct. Id. ¶ 14. No further details

regarding these alleged prior incidents are provided. See generally Compl. Plaintiffs suggest,

however, that these prior incidents occurred before Wallington was promoted, such that

WMATA was aware of Wallington’s alleged “past history of sexual harassment” at the time it

promoted Wallington to the position of Assistant Superintendent for the Custodian Maintenance

Department. See id. ¶ 26. Nonetheless, the Court notes that the Complaint is silent as to when

Wallington was promoted, although it is self-evident that he was promoted to the Assistant

Superintendent position at some point prior to Turner’s promotion in March of 2007. See

generally Compl. The Complaint is similarly silent as to when Wallington allegedly engaged in

unspecified “prior acts of sexual assault and harassment” or as to when and how WMATA would

have been notified of such conduct. See generally Compl.

       B.      Procedural Background

       Plaintiffs filed the above-captioned action on May 4, 2009. See Compl. Plaintiffs’

Complaint, although filed by counsel, is by no means a model of artful pleading. As indicated

above, the factual allegations are generally vague and provide little detail. In addition, the

underlying basis for Plaintiffs’ legal claims is not always transparent, as is discussed in more

detail below. Nonetheless, as the Court understands Plaintiffs’ allegations, they assert the

following seven causes of action:

       •       Count I: Alleges discrimination on the basis of sex (female) in violation of
               Title VII and is asserted by Turner against both Defendants. Id. ¶¶ 28-47.



                                                  6
       •       Count II: Alleges intentional infliction of emotional distress and is asserted
               by Turner against both Defendants. Id. ¶¶ 48-57.

       •       Count III: Alleges intentional infliction of mental distress and is asserted by
               Turner against both Defendants. Id. ¶¶ 58-60.

       •       Count IV: Alleges negligent failure to properly train and supervise and is
               asserted by Turner against WMATA only. Id. ¶¶ 61-70.

       •       Count V: Alleges negligent retention and is asserted by Turner against
               WMATA only. Id. ¶¶ 71-75.

       •       Count VI: Alleges retaliation in violation of Title VII2 and is asserted by
               Turner against both WMATA and Wallington. Id. ¶¶ 76-78.

       •       Count VII: Alleged loss of consortium and is asserted by Williams, Turner’s
               husband, against both Defendants. Id. ¶¶ 79-81.

       Presently pending before the Court is Defendant WMATA’s Motion to Dismiss. See

Def.’s MTD, Docket No. [3]. As indicated above, WMATA has moved for dismissal of

Plaintiffs’ common law tort claims and their claims for punitive damages as alleged against

WMATA. Because Plaintiffs have conceded WMATA’s Motion to Dismiss with respect to their



       2
          Although Count VI does not specify that Plaintiffs’ claim for retaliation is asserted in
violation of Title VII, the Court assumes that Plaintiffs intended to assert this claim under Title
VII based on statements in their Complaint and present briefing. See Complaint ¶ 3 (referring to
“section 704(a) of Title VII,” which sets forth Title VII anti-retaliation provision and is codified
at 42 U.S.C. § 200e-3(a)); Pls.’ Opp’n at 1 (describing the lawsuit as “an action under Title VII
of the Civil Rights Act of 1964"). While the Complaint also briefly references the District of
Columbia Human Rights Act (“DCHRA”), see Compl. ¶ 3, “[i]t is well established that
WMATA is not subject to the DCHRA because WMATA is an interstate compact agency and
instrumentality of three separate jurisdictions.” Taylor v. WMATA, 109 F. Supp. 2d 11, 18
(D.D.C. 2000), aff’d 2001 WL 311216 (D.C. Cir. Mar. 26, 2001); see also Lucero-Nelson v.
WMATA, 1 F. Supp. 2d 1, 7 (D.D.C. 1998) (dismissing plaintiff’s DCHRA claims against
WMATA because “pursuant to the WMATA Compact, one signatory may not impose its
legislative enactment upon the entity created by it without the express consent of the other
signatories and of the Congress of the United States”). Accordingly, the Court assumes that
Plaintiffs’ reference to the DCHRA was in error and that Turner’s claims for discrimination and
retaliation are brought solely under Title VII.

                                                 7
claims for punitive damages, the Court addresses herein only WMATA’s arguments with respect

to Plaintiffs’ common law tort claims asserted against WMATA — namely, Count II (intentional

infliction of emotional distress), Count III (intentional infliction of mental distress), Count IV

(negligent failure to properly train and supervise), Count V (negligent retention), and Count VII

(loss of consortium). Plaintiffs have filed an Opposition to WMATA’s Motion to Dismiss, see

Pls.’ Opp’n, Docket No. [6], and WMATA has filed a Reply, see Def.’s Reply, Docket No. [8].

Accordingly, WMATA’s [3] Motion to Dismiss is fully briefed and ripe for the Court’s review

and resolution.

                                    II. LEGAL STANDARDS

       As indicated above, WMATA has moved for dismissal of Turner’s common law tort

claims for lack of subject matter pursuant to Federal Rule of Civil Procedure 12(b)(1) and has

moved for dismissal of her husband’s tort loss of consortium claim for failure to state a claim

pursuant to Federal Rule of Civil Procedure 12(b)(6). The applicable legal standards for motions

to dismiss under these rules are as follows.

       A.         Federal Rule of Civil Procedure 12(b)(1)

       Under Rule 12(b)(1), the plaintiff bears the burden of establishing that the court has

subject matter jurisdiction. Georgiades v. Martin-Trigona, 729 F.2d 831, 833, n. 4 (D.C. Cir.

1984) (“It is the burden of the party claiming subject matter jurisdiction to demonstrate that it

exists.”); see also Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13

(D.D.C. 2001) (a court has an “affirmative obligation to ensure that it is acting within the scope

of its jurisdictional authority”). A court must accept as true all factual allegations contained in

the complaint when reviewing a motion to dismiss pursuant to Rule 12(b)(1), and the plaintiff


                                                  8
should receive the benefit of all favorable inferences that can be drawn from the alleged facts.

See Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164

(1993); Koutny v. Martin, 530 F. Supp. 2d 84 (D.D.C. 2007) (“[A] court accepts as true all of the

factual allegations contained in the complaint and may also consider ‘undisputed facts evidenced

in the record.’”) (internal citations omitted). However, “‘plaintiff’s factual allegations in the

complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion’ than in resolving a

12(b)(6) motion for failure to state a claim.” Grand Lodge, 185 F. Supp. 2d at 13-14 (quoting 5A

Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1350).

       B.      Federal Rule of Civil Procedure 12(b)(6)

       The Federal Rules of Civil Procedure require that a complaint contain “‘a short and plain

statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the

defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957));

accord Erickson v. Pardus, 551 U.S. 89, 93 (per curiam). Although “detailed factual allegations”

are not necessary to withstand a Rule 12(b)(6) motion to dismiss, to provide the “grounds” of

“entitle[ment] to relief,” a plaintiff must furnish “more than labels and conclusions” or “a

formulaic recitation of the elements of a cause of action.” Id. at 1964-65; see also Papasan v.

Allain, 478 U.S. 265, 286 (1986). Instead, a complaint must contain sufficient factual matter,

accepted as true, to “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at

570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Ashcroft v. Iqbal, __ U.S. __, 129 S. Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 556).


                                                  9
       In evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim, the court must

construe the complaint in a light most favorable to the plaintiff and must accept as true all

reasonable factual inferences drawn from well-pleaded factual allegations. In re United Mine

Workers of Am. Employee Benefit Plans Litig., 854 F. Supp. 914, 915 (D.D.C. 1994); see also

Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979) (“The complaint must be ‘liberally

construed in favor of the plaintiff,’ who must be granted the benefit of all inferences that can be

derived from the facts alleged.”). However, as the Supreme Court recently made clear, a plaintiff

must provide more than just “a sheer possibility that a defendant has acted unlawfully.” Iqbal,

129 S. Ct. at 1950. Where the well-pleaded facts set forth in the complaint do not permit a court,

drawing on its judicial experience and common sense, to infer more than the “mere possibility of

misconduct,” the complaint has not shown that the pleader is entitled to relief. Id. at 1950.

                                        III. DISCUSSION

       As explained above, WMATA has moved to dismiss Plaintiffs’ common law tort claims,

including both those asserted by Turner in Counts II through VI as well as her husband’s claim

for loss of consortium asserted in Count VII. Specifically, WMATA argues that its decisions

relating to the training, supervision and retention of its employees are immune from judicial

review, such that the Court lacks subject matter jurisdiction to review Turner’s claims for

negligent training/supervision, negligent retention, intentional infliction of emotional distress and

intentional infliction of mental distress, as each seeks to challenge WMATA’s personnel

decisions. In addition, WMATA contends that, because Turner’s common law tort claims fail

thereby leaving only her Title VII claims, her husband’s loss of consortium claim must be

dismissed as he cannot assert a derivative tort claim under Title VII.


                                                 10
        A.      WMATA’s Immunity Under the Compact

        WMATA was created as the result of a compact signed by Maryland, Virginia, and the

District of Columbia and consented to by Congress (the “Compact”), and is therefore an

instrumentality of Maryland, Virginia, and the District of Columbia. See D.C. Code § 9-1107.01

et seq.; see also Burkhart v. WMATA, 112 F.3d 1208, 1216 (D.C. Cir. 1997). In creating

WMATA, “the signatories to the Compact, together with Congress, [] conferred their respective

sovereign immunities (including immunity under the Eleventh Amendment) on WMATA;” they

then proceeded, however, to “partially waive[] those immunities in Section 80 of the Compact”

permitting suits for torts “committed in the course of any proprietary function.” Saunders v.

WMATA, 819 F.2d 1151, 1154 (D.C. Cir. 1987) (citing Morris v. WMATA, 781 F.2d 218 (D.C.

Cir. 1986)). Specifically, Section 80 of the WMATA Compact provides that “[t]he Authority

shall be liable . . . for its torts and those of its Directors, officers, employees and agents

committed in the course of any proprietary function . . . but shall not be liable for any torts

occurring in the performance of a governmental function.” D.C. Code § 9-1107.01; see also

Burkhart, 112 F.3d at 1216.

        The D.C. Circuit has held that the “question [of] whether the function in question is

‘governmental’ or ‘proprietary’ under Section 80 is one of federal law,” Saunders, 819 F.2d at

1154, and has “developed two alternative tests for identifying ‘governmental’ functions under the

WMATA Compact,” Burkhart, 112 F.3d at 1216 (citing Dant v. District of Columbia, 829 F.2d

69 (D.C. Cir. 1987)). First, “[i]f an activity is a ‘quintessential[ ] governmental’ function, such

as ‘police activit[y],’ it is within the scope of WMATA’s sovereign immunity.” Id. “For those

activities that are not quintessential governmental functions, immunity will depend on whether


                                                   11
the activity is ‘discretionary’ or ‘ministerial.’” Id. “Only those activities considered

‘discretionary’ are shielded by sovereign immunity.” Id.

       As it is generally “difficult to distinguish between public and private sector functions with

any precision beyond obviously public activities like law enforcement,” the immunity question

often turns on this latter test — i.e., determining whether the challenged activity is discretionary

or ministerial in nature. Beebe v. WMATA, 129 F.3d 1283, 1287 (D.C. Cir. 1997) (internal

citations omitted). The D.C. Circuit has indicated that courts, in analyzing whether an action is

discretionary and therefore immune under the Compact, should look to and apply federal case

law interpreting the discretionary function exception under the Federal Tort Claims Act, which

employs the same discretionary/ministerial dichotomy. See id.; see also Saunders, 819 F.2d at

1155 (concluding that in “granting immunity from tort actions to WMATA’s ‘governmental

actions,’ the Compact seems to use to have accepted” the federal concept of a government

function as applied to the FTCA’s discretionary function exception, thereby creating a “strong

inference that ‘governmental function tort suits are to be governed by federal law — as that law

has been stated in the Tort Claims Act”). Accordingly, a court must first “ask whether any

‘statute, regulation or policy specifically prescribes a course of action for an employee to

follow.’” Beebe, 129 F.3d at 1287 (quoting Cope v. Scott, 45 F.3d 445, 448 (D.C. Cir. 1995)).

“If no course of action is prescribed, we then determine whether the exercise of discretion is

‘grounded in social, economic, or political goals.’” Id. (quoting Cope, 45 F.3d at 448). “If so

grounded, the activity is ‘governmental,’ thus falling within section 80's retention of sovereign

immunity.” Id.

       As WMATA emphasizes in its Motion to Dismiss, the D.C. Circuit has previously held


                                                  12
that, under this test, “decisions concerning the hiring, training and supervising of WMATA

employees are discretionary in nature, and thus immune from judicial review.” Burkhart, 112

F.3d at 1217. Applying this principle, the D.C. Circuit held in Burkhart that WMATA was

immune from claims of negligent hiring, training and supervision based on allegations that its

employee, a bus operator, had physically assaulted a passenger. Id. at 1217-18. The Ciruit court

found that there was no statute, regulation or policy specifically prescribing WMATA’s decisions

with respect to the hiring, training, and supervising of employees, as required under the first

prong of the test outlined above. Id. To the contrary, the D.C. Circuit found that:

        the WMATA compact confers upon WMATA broad power to “[c]reate and abolish
        . . . employments” and “provide for the qualification, appointment, [and] removal .
        . . of its . . . employees without regard to the laws of any of the signatories,”
        “[e]stablish, in its discretion, a personnel system based on merit and fitness,”and
        “[c]ontrol and regulate . . . the service to be rendered.” These provisions hardly
        constrain WMATA’s determination of whom it will employ or how it will train and
        supervise such employees.

Id. (internal citations omitted). In addition, the D.C. Circuit concluded that, under the second

prong of the test, the

        hiring, training, and supervision choices that WMATA faces are choices “susceptible
        to policy judgment.” The hiring decisions of a public entity require consideration of
        numerous factors, including budgetary constraints, public perception, economic
        conditions, individual backgrounds, office diversity, experience and employer
        intuition. Similarly, supervision decisions involve a complex balancing of budgetary
        considerations, employee privacy rights, and the need to ensure public safety. The
        extent of training with which to provide employees requires consideration of fiscal
        constraints, public safety, the complexity of the task involved, the degree of harm a
        wayward employee might cause, and the extent to which employees have deviated
        from accepted norms in the past. Such decisions are surely among those involving
        the exercise of political, social, or economic judgment.

Id. (internal citations and quotation marks omitted). As such, the court held that “WMATA is []

immune from suit for negligence in the performance of such functions.” Id.


                                                 13
        The D.C. Circuit later re-affirmed its holding that WMATA’s decisions relating to the

hiring, training and supervision of its employees are generally immune from suit in its decision in

Beebe. In that case, the plaintiff, a former employee of WMATA, alleged several tort claims—

including a claim for intentional infliction of emotional harm — against WMATA based upon

his supervisor’s decision to abolish the plaintiff’s job, replace it with a new position, and appoint

another individual to that new position as part of a reorganization of his department. Beebe, 129

F.3d at 1286. While recognizing that “not every action connected in some way to an

employment decision amounts to a discretionary function,” the Court of Appeals concluded that

“all actions challenged by [plaintiff] involved a large measure of choice, and we perceive no

distinction between the discretion here and the hiring, training, and supervision of bus operators

at issue in Burkhart.” Id. at 1288. Accordingly, the D.C. Circuit affirmed the lower court’s

dismissal of the plaintiff’s tort claims (including his claim for intentional infliction of emotional

distress) that were based upon his supervisor’s decisions regarding hiring and the reorganization

of the department, finding that WMATA was immune from suit for the challenged conduct. Id.

See also Ferguson v. Local 689, 626 F. Supp. 2d 55, 62 (D.D.C. 2009) (finding that WMATA

was immune from claim for intentional infliction of emotional distress based on decision to

discharge the plaintiff).

        B.      Turner’s Claims for Negligent Training, Supervision and Retention

        Relying on the D.C. Circuit’s decisions in Burkhart and Beebe, WMATA urges that

Turner’s claims for negligent training, supervision and retention, as set forth in Counts IV and V

respectively, must be dismissed to the extent they challenge WMATA’s decisions regarding

training, supervision and retention. Plaintiffs for their part do not dispute that WMATA’s


                                                 14
decisions regarding training, supervision and retention are generally immune from suit. Pls.’

Opp’n at 4. They argue, however, that WMATA is not immune from Turner’s claims for

negligent training, supervision and retention in this case because her claims are based on

allegations that WMATA failed to act once notified of illegal activity; Plaintiffs therefore urge

that the Court has jurisdiction to entertain Plaintiffs’ claims pursuant to the Eighth Circuit’s

decision in Tonelli v. United States, 60 F.3d 492 (8th Cir. 1995).

       In Tonelli, the plaintiffs alleged that employees of the United States Postal Service had

been illegally opening and accessing their private mail. 60 F.3d at 494. Plaintiffs subsequently

reported the problem to a postal employee, who referred them to the postmaster. Id. Plaintiffs’

immediate efforts to contact the postmaster were unsuccessful, and they did not meet with him

until several months after their initial complaint. Id. At that time, the postmaster arranged for an

investigation into their complaint, which resulted in the arrest of a postal employee for opening

and accessing plaintiffs’ mail. Id. Plaintiffs subsequently filed suit against the United States

under the FTCA asserting claims for, inter alia, negligent supervision and retention. Id. The

Eighth Circuit on appeal rejected the Government’s contention that it was immune from suit

against plaintiffs’ claims pursuant to the FTCA’s discretionary function exception, finding that

the challenged decisions were not grounded in policy considerations as required under the second

prong of the discretionary function exception test. Id. at 496. The court recognized that “[i]ssues

of employee supervision and retention generally involve the permissible exercise of policy

judgment and fall within the discretionary function exception,” but distinguished plaintiffs’

claims — which were based on “allegations that the post office failed to act when it had notice of

illegal behavior” — from the type of personnel decisions that are immune under the FTCA. Id.


                                                 15
Specifically, the Eighth Circuit held that plaintiffs’ claim that the government “[f]ail[ed] to act

after notice of illegal action does not represent a choice based on plausible policy

considerations.” Id. Accordingly, it failed the second prong of the test outlined above for

determining whether a decision is discretionary and therefore immune from suit. Id.

       Plaintiffs’ reliance on Tonelli, however, is misplaced as it is factually inapposite to the

allegations at issue in this case. As is apparent from the Court’s summary above, the plaintiffs in

Tonelli complained to a postal employee about specific, ongoing and contemporaneous illegal

conduct that was being taken by an employee against plaintiffs themselves, and the Eighth

Circuit found that in such a situation, allegations that the Postal Service wholly failed once

notified to address the illegal activity underlying plaintiffs’ complaint were not immune under

the FTCA. By contrast, the allegations in the extant Complaint indicate that Turner did not

notify WMATA of Wallington’s allegedly illegal conduct until after she left her position at

WMATA. Accordingly, Plaintiffs are not alleging, as in Tonelli, that WMATA failed to act

despite specific notice by Plaintiffs that an employee was currently engaging in illegal conduct.

In other words, unlike in Tonelli, there is no allegation that WMATA was aware during the

relevant period of time between April of 2007 and October of 2007 that Wallington was

allegedly engaging in harassing and discriminatory conduct in violation of Title VII, but

nonetheless failed to act. Rather, Plaintiffs complain that WMATA negligently failed to take

action and negligently promoted Wallington before she was transferred to his department despite

having been allegedly informed at some unspecified time in the past that Wallington had engaged

in unspecified harassing conduct. Accordingly, even assuming the Court were to adopt Tonelli’s

holding that an agency is not immune from allegations that it failed to act when placed on notice


                                                 16
of specific and continuing illegal conduct by an employee, that is simply not the case here based

on Plaintiffs’ own allegations.

       Plaintiffs have proffered no other reason why the D.C. Circuit’s decisions in Burkhart and

Beebe should not control nor can the Court perceive any distinguishing factors in this case that

would take Plaintiffs’ allegations outside of the D.C. Circuit’s precedent holding that WMATA’s

decisions regarding training, supervision and retention are immune from judicial review.

Plaintiffs have not alleged in their Complaint or argued in their present briefing that any statute,

regulation or policy that specifies particular training, supervision or retention actions WMATA

was required to — but did not — take in the circumstances alleged. Accordingly, WMATA’s

challenged decisions were discretionary. Moreover, the Court finds that, under Burkhart and

Beebe, WMATA’s decisions regarding training, supervision and retention are grounded in social,

economic and political concerns and are therefore immune from judicial review. That these

decisions were made with respect to an individual who had — at some unspecified point in the

past — allegedly been reported for engaging in unspecified discriminatory conduct does not

remove the inherently policy-based concerns implicated by WMATA’s training, supervision and

retention decisions. As the D.C. Circuit found in Burkhart, “supervision decisions involve a

complex balancing of budgetary considerations, employee privacy rights, and the need to ensure

public safety” and “[t]he extent of training with which to provide employees requires

consideration of fiscal constraints, public safety, the complexity of the task involved, the degree

of harm a wayward employee might cause, and the extent to which employees have deviated

from accepted norms in the past.” Burkhart, 112 F.3d at 1217. Similarly, like decisions relating

to hiring, the decision whether to promote and/or retain an employee “require consideration of


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numerous factors, including budgetary constraints, public perception, economic conditions,

individual backgrounds, office diversity, experience and employer intuition.” Id. The Court

therefore finds that, on the basis of Plaintiffs’ allegations in the Complaint, WMATA is immune

from Turner’s claims for negligent training, supervision and retention. Accordingly, WMATA’s

[3] Motion to Dismiss is GRANTED with respect to Turner’s claims for negligent training,

supervision and retention, and Counts IV and V shall be DISMISSED for lack of subject matter

jurisdiction pursuant to Rule 12(b)(1).

       C.      Turner’s Claims for Intentional Infliction of Distress

       The Court turns then to Turner’s claims for intentional infliction of emotional/mental

distress, as set forth in Counts II and III of the Complaint. In its opening Motion to Dismiss,

WMATA argued that all of Turner’s common law claims — including both her negligent

training, supervision and retention claims as well as her claims for intentional infliction of

emotional/mental distress — were predicated on the same training, supervision and retention

decisions and that WMATA was therefore immune from all of Turner’s common law tort claims

for the same reasons discussed above. Plaintiffs’ Opposition, however, addresses the two

categories of claims separately. With respect to Turner’s claims for intentional infliction of

emotional/mental distress, Plaintiffs argue that — unlike her claims for negligent training,

supervision and retention — such claims may proceed because WMATA is liable under the

principle of respondeat superior for Wallington’s alleged conduct and WMATA is not entitled to

immunity for such “extremely inappropriate behavior.” See Pls.’ Opp’n at 2-3. As presented by

Plaintiffs in their opposition briefing, then, Turner’s claims for intentional infliction of emotional

and mental distress are predicated only upon allegations that WMATA is liable for Wallington’s


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harassing and discriminatory conduct under the doctrine of respondeat superior.

       Having reviewed Plaintiffs’ opposition briefing, which for the first time makes clear that

Turner’s claims for intentional infliction of emotional/mental distress are premised on

respondeat superior liability, WMATA argues in reply that Turner’s claims nonetheless fail

because Wallington’s alleged conduct is outside the scope of employment. As such, WMATA

cannot legally be held liable for his behavior under the principle of respondeat superior. Def.’s

Reply at 2-4. To the extent WMATA is correct, this argument is dispostive of Turner’s claims.

The Court notes, however, that it was — through no fault of WMATA’s — raised for the first

time in the Reply in response to Plaintiffs’ Opposition. Accordingly, Plaintiffs have not yet had a

chance to respond, and the Court declines to make a final decision without the benefit of full

briefing by the parties. The Court shall therefore DENY WITHOUT PREJUDICE WMATA’s

[3] Motion to Dismiss with respect to Counts II and III of the Complaint and shall permit

WMATA an opportunity to file a renewed motion to dismiss as to those claims only pursuant to

the schedule set forth in the accompanying Order.

       D.      Williams’ Claim for Loss of Consortium

       The Court is therefore left with WMATA’s arguments for dismissal of Williams’ loss of

consortium claim asserted in Count VII of the Complaint. As an initial matter, it is not entirely

clear from the Complaint what allegations specifically underlie Williams’ claim. Nonetheless, to

the extent his claim for loss of consortium is predicated upon his wife’s claims for negligent

training, supervision and retention, which the Court has dismissed above for lack of subject

matter jurisdiction, Williams’ claim for loss of consortium also fails. Accordingly, the Court

shall GRANT WMATA’s [3] Motion to Dismiss with respect to Count VII insofar as it is


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premised upon WMATA’s training, supervision and retention decisions.

       To the extent, however, that William’s claim is predicated upon the allegations

underlying Turner’s intentional infliction of emotional/mental distress claims, such claims

remain extant at this time given the Court’s decision above denying without prejudice

WMATA’s Motion to Dismiss Counts II and III of the Complaint. WMATA has not, therefore,

demonstrated that Williams’ loss of consortium claim must fail insofar as it is premised on

Turner’s common law tort claims in Counts II and III. To the extent, however, that WMATA

files a renewed motion to dismiss as to those claims, it may also re-raise its arguments with

respect to Count VII of the Complaint, if it deems it appropriate. Accordingly, the Court shall

DENY WITHOUT PREJUDICE WMATA’s [3] Motion to Dismiss with respect to Count VII

insofar as it is based on his wife’s allegations in Counts II and III of the Complaint.

                                       IV. CONCLUSION

       For the reasons set forth above, the Court GRANTS-IN-PART and DENIES-IN-PART

WMATA’s [3] Motion to Dismiss. Specifically, the motion is GRANTED as conceded with

respect to Plaintiffs’ punitive damages claims and is also GRANTED with respect to Turner’s

claims for negligent training, supervision and retention. Plaintiffs’ claims for punitive damages

as well as Counts IV and V in the Complaint are therefore DISMISSED for lack of subject matter

jurisdiction pursuant to Rule 12(b)(1). The motion, however, is DENIED WITHOUT

PREJUDICE with respect to Counts II and III of the Complaint. In addition, the Court GRANTS


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the motion with respect to Count VII insofar as the claim is alleged against WMATA and is

premised upon WMATA’s training, supervision and retention decisions, but DENIES

WITHOUT PREJUDICE the motion insofar is it is premised on Turner’s common law tort

claims in Counts II and III, which remain extant. WMATA may file a renewed motion to dismiss

as to Counts II, III and VII only pursuant to the schedule set forth in the accompanying Order.

Date: March 31, 2010.

                                                      /s/
                                                     COLLEEN KOLLAR-KOTELLY
                                                     United States District Judge




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