                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


 ROBYN SLACK,

                       Plaintiff,

                       v.                           Case No. 1:16-cv-00130 (TNM)

 WASHINGTON METROPOLITAN
 AREA TRANSIT AUTHORITY et al.,

                       Defendants.


                                    MEMORANDUM OPINION

       Plaintiff Robyn Slack lost her job at Washington Metropolitan Area Transit Authority

(“WMATA”) after refusing to act as the sole point of contact for a procurement contract, which

she claimed would have violated the law. She sued WMATA for unlawful retaliation and her

supervisor, Judy Mewborn, for defamation. The Court dismissed Ms. Slack’s retaliation claims

under the False Claims Act and the District of Columbia Protection Act because sovereign

immunity barred those claims. See Slack v. Wash. Metro. Area Transit Auth., 325 F. Supp. 3d

146, 150–51 (D.D.C. 2018) (“Slack I”). WMATA now moves for summary judgment on the

remaining claims, and Ms. Slack opposes. WMATA’s motion will be denied as to Ms. Slack’s

retaliation claim under the American Recovery and Reinvestment Act (“ARRA”), but sovereign

immunity bars her retaliation claim under the National Defense Authorization Act (“NDAA”).

Because Ms. Mewborn enjoys immunity from Ms. Slack’s defamation claim, Ms. Mewborn’s

motion for summary judgment will be granted as to that claim.
                                    I.      BACKGROUND


       Ms. Slack was a Capital Analyst in WMATA’s Office of Systems Maintenance. Slack

Dep. at 58, ECF No. 51-2. In this position, Ms. Slack provided oversight management for

budgets and projects in WMATA’s Capital Improvement Program (“CIP”). See “Job

Description for Capital Program Analyst,” ECF No. 51-7. Ms. Mewborn was her direct

supervisor. Slack Dep. at 60.

       Ms. Mewborn oversaw “CIP 0027,” a project aimed at improving the safety and

reliability of interlocking track structures and replacement of switch machines. Olumid Dep. at

8, ECF No. 52-4. Ms. Mewborn proposed that Ms. Slack would be the contact person for “all

orders being requested that are related to CIP 0027.” July 1, 2014 Email, ECF No. 51-8. Ms.

Slack claims that she told Ms. Mewborn in a meeting that such a plan would violate WMATA’s

legal and regulatory obligations to maintain “internal controls.” Slack Dep. at 81–83.

       A few months later, Ms. Mewborn issued Ms. Slack a written warning about her job

performance. See “Poor Performance and Conduct – Written Warning,” ECF No. 51-9. In her

warning, Ms. Mewborn criticized Ms. Slack for, among other things, using confidential

information about her co-worker’s salary to request her own promotion. Id. After Ms. Slack

objected to the written warning, a WMATA employee relations officer investigated and

concluded that it was unclear whether Ms. Slack had used confidential information to learn her

co-worker’s salary. Jones-Ogunsuy Dep. at 28–29, ECF No. 51-4. So Ms. Mewborn issued Ms.

Slack a revised memorandum without reference to Ms. Slack’s alleged use of confidential

information. “Unsatisfactory Performance,” ECF No. 51-11. This memorandum included

several other concerns: (1) inability to meet department expectations; (2) failure to meet

deadlines and unable to work in a fast-paced, high stress environment; (3) failure to follow up



                                                 2
and provide requested information; and (4) failure to follow clear instructions. Id. Six weeks

later, WMATA fired Ms. Slack. “Termination of Employment” Memorandum, ECF No. 51-12.

       Ms. Slack sued WMATA for unlawful retaliation and Ms. Mewborn for defamation.

Slack I, 325 F. Supp. 3d at 150. WMATA moved to dismiss Ms. Slack’s retaliation claims under

the False Claims Act and the District of Columbia Whistleblower Protection Act, and the Court

dismissed these claims based on WMATA’s sovereign immunity. Id. at 151. WMATA and Ms.

Mewborn (“Defendants”) have now moved for summary judgment on the remaining claims, and

Ms. Slack opposes.


                                  II.     LEGAL STANDARDS


       To prevail on a motion for summary judgment, a movant must show 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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986).

A factual dispute is material if it could alter the outcome of the suit under the substantive

governing law. Id. at 248. 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.” Id. “[A] party seeking

summary judgment always bears the initial responsibility of informing the district court of the

basis for its motion, and identifying those portions of the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, which it believes

demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986). Once the movant makes this showing, the non-moving party bears the burden

of setting forth “specific facts showing that there is a genuine issue for trial.” Anderson, 477

U.S. at 250.




                                                  3
       As the Court explained in Slack I, the Eleventh Amendment generally prohibits a federal

court from exercising jurisdiction over claims against a state. 325 F. Supp. 3d at 151; U.S.

Const. amend. XI (“The Judicial power of the United States shall not be construed to extend to

any suit in law or equity, commenced or prosecuted against one of the United States by Citizens

of another State, or by Citizens or Subjects of any Foreign State.”). As Ms. Slack appears to

concede, when Virginia, Maryland, and the District of Columbia created WMATA, they

conferred their sovereign immunity upon it. Morris v. Wash. Metro. Area Transit Auth., 781

F.2d 218, 219–20 (D.C. Cir. 1986).

        “[T]he question whether Eleventh Amendment immunity is a matter of subject matter

jurisdiction is an open one.” U.S. ex rel. Long v. SCS Bus. & Tech. Inst., Inc., 173 F.3d 890, 892

(D.C. Cir. 1999). On the one hand, courts do not have to consider sovereign immunity sua

sponte: “[u]nless the State raises the matter, a court can ignore it.” Wis. Dep’t of Corr. v.

Schacht, 524 U.S. 381, 389 (1998). But parties also can raise sovereign immunity for the first

time on appeal. See SCS Bus. & Tech. Inst., 173 F.3d at 892. As the D.C. Circuit has explained,

“[t]he Eleventh Amendment bar on suits against states in federal court is not a garden variety

jurisdictional issue.” Id.

       To keep on the right track, the Court will undertake its own jurisdictional analysis—

assisted but not limited by the parties’ arguments 1—and ask whether sovereign immunity bars

each of Ms. Slack’s claims. 2 As the Court has explained, there are two primary exceptions to



1
        In her briefing, Ms. Slack asserts that WMATA has “waived” specific sovereign
immunity arguments. Because WMATA can raise sovereign immunity at any time, the Court
will not limit itself to WMATA’s arguments.
2
        A federal court must satisfy itself that it has jurisdiction over a claim before proceeding
to the merits and must dismiss any action over which it determines that it lacks subject matter
jurisdiction. Moms Against Mercury v. FDA, 483 F.3d 824, 826 (D.C. Cir. 2007).


                                                  4
sovereign immunity: (1) Congress may limit sovereign immunity if it unequivocally expresses its

intent to abrogate that immunity; or (2) an entity may voluntarily waive its immunity by making

a clear declaration that it will submit to a federal court’s jurisdiction. 3 See Slack I, 325 F. Supp.

3d at 151.


                                         III.    ANALYSIS


       A. WMATA is Not Entitled to Summary Judgment on Ms. Slack’s Retaliation

             Claim under the ARRA.

       The American Recovery and Reinvestment Act of 2009, “popularly known as the

Stimulus Act, was passed as an emergency legislation to rescue the American economy from

deep recession.” Dorsey v. Jacobson Holman PLLC, 707 F. Supp. 2d 21, 23 (D.D.C. 2010). To

safeguard federal funds and encourage transparency, the ARRA includes whistleblower

protections for employees of non-Federal employers receiving funds under the ARRA. See

ARRA, Pub. L. No. 111–5, § 1553 (2009).

       As Ms. Slack concedes, Congress did not abrogate WMATA’s sovereign immunity under

the ARRA. See Opp. to Defs.’ Mot. for Summ. Jdgt. (“Opp.”) at 13–18, ECF No. 52 (only

arguing that WMATA waived its immunity as to her ARRA claim). The textual provisions must

“demonstrate with unmistakable clarity that Congress intended to abrogate the States’ immunity


3
        Ms. Slack originally filed this case in the Superior Court of the District of Columbia, and
WMATA removed it to federal court. Once in federal court, Ms. Slack amended her complaint
to add her ARRA and NDAA claims. Ms. Slack has never argued that WMATA waived its
immunity by removing this case to federal court. “Unlike the defense of sovereign immunity,
which is jurisdictional and may be raised at any time, the claim that WMATA waived its
immunity is an argument that must be raised in a timely fashion.” Watters v. Wash. Metro. Area
Transit Auth., 295 F.3d 36, 42 n.13 (D.C. Cir. 2002). So the Court will not consider whether
WMATA waived sovereign immunity by removing this case.



                                                   5
from suit.” Dellmuth v. Muth, 491 U.S. 223, 231 (1989). The ARRA does not do so. For

instance, the language of the ARRA does not even mention the Eleventh Amendment or state

sovereign immunity. See id. And the Supreme Court has made clear that “[a] general

authorization for suit in federal court is not the kind of unequivocal statutory language sufficient

to abrogate the Eleventh Amendment.” Id.

       But Ms. Slack insists that WMATA has waived its sovereign immunity. For the Court to

find waiver, WMATA must make a “clear declaration” of its intent to submit to federal court

jurisdiction. Barbour v. Wash. Metro. Area Transit Auth., 374 F.3d 1161, 1163 (D.C. Cir.

2004). This is a high bar. Id. To elicit such a clear declaration, Congress “may, in the exercise

of its spending power, condition its grant of funds to the States upon their taking certain actions.”

Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 686 (1999).

Congress must exercise its power explicitly: a congressional waiver provision is constitutional

only if it manifests “a clear intent to condition participation in the programs funded under the Act

on a State’s consent to waive its constitutional immunity.” Barbour, 374 F.3d at 1163 (citation

omitted).

       For instance, in Barbour, the D.C. Circuit determined that the Civil Rights Remedies

Equalization Act (“CRREA”) unambiguously conditioned a state agency’s acceptance of federal

funds on its waiver of its Eleventh Amendment immunity when it provided:

       A state shall not be immune under the Eleventh Amendment of the Constitution
       of the United States from suit in Federal court for a violation of section 504 of the
       Rehabilitation Act of 1973, title IX of the Education Amendments of 1972, the
       Age Discrimination Act of 1975, title VI of the Civil Rights Act of 1964, or the
       provisions of any other Federal statute prohibiting discrimination by recipients of
       Federal financial assistance.




                                                 6
See Barbour, 374 F.3d at 1164 (quoting 42 U.S.C. § 2000d-7(a)(1)). That statutory

language elucidates “the simple choice offered:” accept funding and waive immunity

from suit or decline funding and retain sovereign immunity. Id.

       “[T]he mere receipt of federal funds does not establish that a state has consented

to suit in federal court.” Duncan v. Wash. Metro. Area Transit Auth., 214 F.R.D. 43, 46

(D.D.C. 2003). The ARRA does not condition WMATA’s acceptance of funds on its

waiver of its sovereign immunity. 4 True, ARRA’s whistleblower protections purport to

apply to employees of non-Federal employers: the ARRA specifies that the term “non-

Federal employer” includes “State or local government receiving funds.” ARRA,

§ 1553(g)(4). But Congress did not expressly condition receipt of ARRA funds on

waiver of sovereign immunity. Ms. Slack points to nothing in the ARRA that presents

WMATA with a clear choice: accept funds and lose its sovereign immunity or decline

funds and remain free of ARRA whistleblower suits. By contrast, consider the CRREA,

which clearly states that “recipients of Federal financial assistance” “shall not be immune

under the Eleventh Amendment.” 42 U.S.C. § 2000d-7(a)(1).

       Even though Congress did not condition receipt of ARRA funds on WMATA’s

waiver, the Court finds that WMATA has waived its sovereign immunity here for ARRA

whistleblower lawsuits. What Congress does not demand, a State may nonetheless

voluntarily relinquish. The Court will find waiver if an entity “makes a ‘clear



4
        In its reply brief, WMATA argues that the ARRA is unconstitutionally coercive given the
amount of ARRA funds that it receives from Congress. Defs.’ Reply to Pl.’s Opp., ECF No. 53,
4. Courts seldom consider new arguments first raised in reply briefs. See Benton v. Laborers’
Joint Training Fund, 121 F. Supp. 3d 41, 51 (D.D.C. 2015). In any event, because the Court
finds that Congress did not condition receipt of ARRA funds on WMATA’s waiver, WMATA’s
argument about the ARRA’s coercive effect is meritless.



                                                7
declaration’ of its intent to submit to federal court jurisdiction.” Barbour, 374 F.3d at

1163 (quoting College Sav. Bank, 527 U.S. at 676). Courts “indulge every reasonable

presumption against waiver.” College Sav. Bank, 527 U.S. at 682. Even so, the Court

finds that WMATA has waived its immunity through its course of conduct.

       The ARRA states that (1) its whistleblower protections apply to States; and (2)

whistleblower complainants may file actions in federal court. See ARRA §§ 1553(g)(4)

and (c)(3). WMATA’s own “Policy on Whistleblower Rights and Responsibilities”

notifies employees that they “may file a complaint of discrimination with the Inspector

General of the appropriate federal agency” under specifically the ARRA. See “Board

Resolution and Whistleblower Policies” at 6, ECF No. 52-13. While this policy does not

expressly say that WMATA is willing to subject itself to a lawsuit in federal court, this is

evidence that WMATA expected to be subject to whistleblower lawsuits. And in its

Master Agreement with the Federal Transit Administration, WMATA affirmatively

“agree[d] to comply with the requirements” of the ARRA. “Master Agreement” at 77–

78, ECF No. 52-8. Given ARRA’s statutory provisions—which include relief in federal

court against States—when WMATA affirmatively agreed to comply with the ARRA,

accepted federal funds under the ARRA, and advertised the ARRA’s whistleblower

protections to its employees, WMATA waived its immunity from these lawsuits.

       Still WMATA insists that Ms. Slack cannot prevail on her ARRA claim because

there is no evidence that her whistleblowing disclosures related to ARRA funds. Defs.’

Mot. for Summ. Jdgt. (“Defs.’ Mot.”) at 9–11, ECF No. 51. Ms. Slack alleges that

WMATA terminated her in retaliation for voicing concerns about CIP 0027, and

WMATA insists that CIP 0027 was not funded by ARRA “covered funds.” Id. at 10.




                                                 8
Ms. Slack claims that any uncertainty about the source of the funds used to finance CIP

0027 should be held against WMATA because of WMATA’s own “inability to keep

track of its funds.” Opp. at 23.

       To show that WMATA did not use ARRA funds on CIP 0027, WMATA points to

an affidavit from its Managing Director of the Office Management and Budget Services,

Yetunde Olumide. Defs.’ Mot. at 2. In her affidavit, Ms. Olumide says that “CIP 0027

did not receive any funding provided by the American Recovery and Reinvestment Act

of 2009.” Olumide Aff. at 1, ECF No. 51-6. But as Ms. Slack points out, Ms. Olumide is

more equivocal in her deposition about the source of CIP 0027 funds. Olumid Dep. at

25–26. Ms. Olumide admits that WMATA staff had “gone through and . . . scrubbed and

cleaned out aligned transactions accordingly” to ensure that the database was accurate to

prepare for litigation. Id. at 25. When asked about WMATA’s difficulties tracking

financial transactions, Ms. Olumide admitted that “there were a lot of transactions that

were not well tracked” but insisted that she “believe[d] that the information that was

provided to me concerning the back-up for the CIP27, were – accurate as far as [she

knew].” Id. at 25–26.

       And in her affidavit, Ms. Olumide claims that there were three funding sources

for the CIP 0027 project: (1) Federal Formula Grants; (2) Passenger Rail Investment and

Improvement Act Grants; and (3) non-federal funding from local governments, including

Maryland, Virginia, and the District of Columbia. Olumide Aff. at 1. WMATA’s own

records track these categories. See “CIP 0027 Funding Sources,” ECF No. 52-19. But

these same records also admit uncertainty. In the category of “Non-Federal Funding,”

these records suggest that the CIP 0027 was funded from “DEBT.” Id. WMATA does




                                                 9
not explain what “DEBT” means. At trial, WMATA may be able to prove that CIP 0027

was not funded by ARRA funds, but to prevail on summary judgment, WMATA must

show that there is no genuine issue as to the source of these funds. See Celotex Corp.,

477 U.S. at 323.   WMATA has not done so, therefore Ms. Slack’s ARRA claim

survives.


       B. WMATA’s Sovereign Immunity Bars Ms. Slack’s Retaliation Claim under the

            NDAA.

       Ms. Slack’s retaliation claim under the NDAA may proceed only if sovereign immunity

does not bar her claim. Again, the Court asks whether: (1) Congress has unequivocally

expressed its intent to abrogate WMATA’s sovereign immunity or (2) WMATA has voluntarily

waived its immunity by making a clear declaration that it will submit to a federal court’s

jurisdiction. See Slack I, 325 F. Supp. 3d at 151.

       The NDAA’s whistleblower retaliation provision provides:

       An employee of a contractor, subcontractor, grantee, or subgrantee or personal
       services contractor may not be discharged, demoted, or otherwise discriminated
       against as a reprisal for disclosing to a person or body described in paragraph (2)
       information that the employee reasonably believes is evidence of gross
       mismanagement of a Federal contract or grant, a gross waste of Federal funds, an
       abuse of authority relating to a Federal contract or grant, a substantial and specific
       danger to public health or safety, or a violation of law, rule, or regulation related
       to a Federal contract (including the competition for or negotiation of a contract) or
       grant.

41 U.S.C. § 4712(a)(1).

       Ms. Slack admits that Congress did not abrogate WMATA’s sovereign immunity

under the NDAA or even explicitly condition receipt of federal funds on WMATA’s

waiver of its immunity. Opp. at 18. Instead, Ms. Slack argues that the Secretary of




                                                10
Transportation conditioned the receipt of funds on such a waiver through its regulations.

Id. Specifically, she points to 2 C.F.R. § 200.300(b):

       The non–Federal entity is responsible for complying with all requirements of the
       Federal award. For all Federal awards, this includes the provisions of FFATA,
       which includes requirements on executive compensation, and also requirements
       implementing the Act for the non–Federal entity at 2 CFR part 25 Financial
       Assistance Use of Universal Identifier and System for Award Management and 2
       CFR part 170 Reporting Subaward and Executive Compensation Information. See
       also statutory requirements for whistleblower protections at 10 U.S.C. 2409, 41
       U.S.C. 4712, and 10 U.S.C. 2324, 41 U.S.C. 4304 and 4310.

2 C.F.R. § 200.300(b) (emphasis added). Ms. Slack argues that because this regulation

requires non-Federal entities, presumably such as WMATA, to comply “with all

requirements of the Federal award” and references NDAA’s whistleblower protection—

41 U.S.C. § 4712—WMATA waived its sovereign immunity when it accepted federal

funds. Opp. at 20.

       Ms. Slack insists that it “makes no difference” that the Secretary of

Transportation—not Congress—attached the conditions to federal funding recipients.

Opp. at 18. Not so. To be sure, “Congress may attach conditions on the receipt of

federal funds . . . [such as] compliance by the recipient with federal statutory and

administrative directives.’” South Dakota v. Dole, 483 U.S. 203, 206 (1987) (citation

omitted). That is, Congress can condition receipt of federal funds on a state waiving its

sovereign immunity and complying with “administrative directives,” such as Department

of Transportation regulations. The problem here is that Congress has not conditioned

receipt of federal funds on WMATA’s waiver of sovereign immunity. The Secretary did.

       Ms. Slack cites Association of Private Sector Colleges and Universities v.

Duncan, 681 F.3d 427 (D.C. Cir. 2013), to argue that the Secretary of Transportation may

condition receipt of federal funds on WMATA’s waiver of its sovereign immunity. Title



                                                 11
IV of the Higher Education Act (“HEA”) of 1965 created student-loan programs, which

the Department of Education administers. Id. at 433. As the D.C. Circuit explained,

“[t]o participate in Title IV programs—i.e., to be able to accept federal funds—a

postsecondary institution . . . must satisfy several statutory requirements.” Id. For

example, the statute requires federal-funding-seeking institutions to comply with

regulations about fiscal eligibility, issued by the Secretary of Education. See 20 U.S.C.

§ 1094. In rejecting plaintiffs’ challenge to a specific regulation, the D.C. Circuit

emphasized that “the regulations merely establish criteria for schools that choose to

participate in federal programs.” Duncan, 681 F.3d at 458. That is, the regulations apply

only to schools that “choose to participate” in this federal program.

       Unlike the NDAA, the HEA is clear that Congress conditioned the receipt of

federal funding on the institutions complying with both statutory and regulatory

requirements. See 20 U.S.C. § 1094 (“In order to be an eligible institution for the

purposes of any program authorized under this subchapter, an institution . . . shall enter

into a program participation with the Secretary. The agreement shall condition . . .

eligibility . . . upon compliance with the following requirements . . . .”). Duncan does not

hold that a regulation alone can condition receipt of federal funds on a waiver of

sovereign immunity. Rather, Duncan shows that Congress can condition receipt of

federal funds on compliance with statutes and regulations.

       And even if the Secretary of Transportation—not Congress—could condition

receipt of federal funds on an entity’s waiver of its sovereign immunity, this regulation

does not do so. Section 200.300(b) instructs non-Federal entities to comply with “all

requirements of the Federal award.” 2 C.F.R. § 200.300(b). Then it instructs readers to




                                                 12
consult “statutory requirements for whistleblower protections” including the NDAA’s

protections. Id. It does not suggest that receipt of federal funding is conditioned on

compliance with these federal regulations; there is no conditional language. And the

regulation does not reference sovereign immunity or the Eleventh Amendment. For

example, it does not declare that non-Federal entities “shall not be immune under the

Eleventh Amendment of the Constitution of the United States” from suits under 42

U.S.C. § 4712. Cf. 42 U.S.C. § 2000d-7(a)(1).

       Because Congress did not abrogate WMATA’s sovereign immunity and because

WMATA did not waive its immunity under the NDAA, this Court lacks jurisdiction over

Ms. Slack’s NDAA claim. 5


       C. Ms. Mewborn is Entitled to Summary Judgment on Ms. Slack’s Defamation

           Claim.

       Ms. Mewborn claims she is entitled to summary judgment on Ms. Slack’s defamation

claim. She argues that she has absolute immunity from Ms. Slack’s defamation action because

she was acting in her official capacity as a WMATA supervisor and the conduct at issue was

discretionary. Defs.’ Mot. at 14–18. In response, Ms. Slack does not dispute Ms. Mewborn’s




5
        Ms. Slack also argues that “Congress should be permitted to regulate an interstate
compact as it sees fit under the Compact Clause.” Opp. at 22. True enough. Congress does
have authority to attach conditions when it consents to an interstate compact. See Petty v. Tenn.-
Mo. Bridge Comm’n, 359 U.S. 275, 279 (1959). For example, Section 80 of the WMATA
Compact partially waives WMATA’s immunity. See Morris, 781 F.2d at 221. Ms. Slack
generally alleges that Congress can regulate WMATA under the Compact Clause, but she
identifies no relevant condition in the WMATA Compact.


                                                13
immunity, but she insists that it does not extend to “false allegations of criminal conduct.” Opp.

at 29.

         Ms. Slack has not alleged that Ms. Mewborn acted outside the scope of her official duties

in issuing the written warning. By Ms. Slack’s own account, all actions she challenges related

directly to her job performance. They are at the core of Ms. Mewborn’s official responsibilities

as Ms. Slack’s supervisor.

         “To be sure, not all intentional or malicious torts committed in the normal course of

employment necessarily fall within the scope of official duties.” Beebe v. Wash. Metro. Area

Transit Auth., 129 F.3d 1283, 1289 (D.D.C. 1997). And absolute immunity is lost when a

supervisor uses manifestly excessive means to conduct official duties. See McKinney v.

Whitfield, 736 F.2d 766, 771 (D.C. Cir. 1984). For instance, a supervisor who uses physical

force to compel the obedience of his subordinates or “false threats of criminal charges to coerce

an employee into resigning” may exceed the scope of his official duties. See Beebe, 129 F.3d at

1289. But there is no evidence that Ms. Mewborn’s actions came close to these extremes. 6 Even

according to Ms. Slack, Ms. Mewborn was simply wrong when she said that Ms. Slack accessed

confidential information about her co-worker’s salary. There is no evidence of manifestly

excessive means. So Ms. Mewborn enjoys immunity from Ms. Slack’s defamation claim.

         In the alternative, Ms. Mewborn’s statement is also protected by the qualified privilege of

consent. In the District of Columbia, a publication is privileged if: “(1) there was either express



6
        Even if it would be a crime for Ms. Slack to access the confidential information at issue,
there is no evidence that Ms. Mewborn threatened Ms. Slack with criminal charges over this
conduct. What’s more, there is no evidence that Ms. Mewborn tried to use this allegation to
coerce her resignation. Cf. Bishop v. Tice, 622 F.2d 349, 359 (8th Cir. 1980) (holding that an
official used “means beyond” his authority “by threatening [the plaintiff] with criminal charges
instead of attempting to dismiss him for cause”).



                                                 14
or implied consent to the publication; (2) the statements were relevant to the purpose for which

consent was given; and, (3) the publication of those statements was limited to those with a

legitimate interest in their content.” Marsh v. Hollander, 339 F. Supp. 2d 1, 11 (D.D.C. 2004).

          Ms. Mewborn argues that Ms. Slack consented to the publication of her statement. Defs.’

Mot. at 17–18. But Ms. Slack believes that such a defense does not apply because there was no

agreement between Ms. Slack and WMATA showing consent. Opp. at 28. Moreover, Ms. Slack

asserts that a consent defense exists only “in the absence of malice,” and a jury could find that

Mewborn acted with malice given the seriousness of her allegations. Id.

          First, in the employer-employee context, the D.C. Court of Appeals has found that

consent to publication of employee performance information could be a qualified privilege even

when an at-will employee never signed an agreement about the publication. See Wallace v.

Skadden, Arps, Slate, Meagher & Flom, 715 A.2d 873, 880 (D.C. 1998). Ms. Slack is therefore

mistaken: even absent a written agreement, the Court may find implied consent to publication.

See id.

          “In order to overcome the privilege [of consent], it is ‘incumbent on the party

complaining to show malice.’” Id. at 879 (quoting White v. Nicholls, 44 U.S. 266, 287 (1845)).

“Before the inference of express malice can be indulged, the publication must, in comment, be so

excessive, intemperate, unreasonable, and abusive as to forbid any other reasonable conclusion

than that defendant was actuated by express malice.” Id. at 879 n.9. And if the communication

is privileged, a defendant “will be presumed to have been actuated by pure motives in its

publication.” Id. (quotations omitted).

          Ms. Slack insists that a jury could find Ms. Mewborn “acted with malice given the

seriousness of her baseless allegations of misconduct.” Opp. at 35. Not so. To reiterate, Ms.




                                                  15
Mewborn issued a written warning that said “[y]our lack of confidentiality has put our team and

information at risk. During a routine request of information, you took the salaries of your peers

and used that information for your personal use (requesting a promotion based on your peer’s

salary, and questioning his performance).” “Poor Performance and Conduct – Written Warning”

at 1. Ms. Mewborn did not accuse Ms. Slack of a crime. Ms. Mewborn’s comment,

contextualized in a list of several serious concerns about Ms. Slack’s job performance, is not “so

excessive, intemperate, unreasonable, and abusive as to forbid any other reasonable conclusion”

than that Ms. Mewborn was motivated by malice. Wallace, 715 A.2d at 879 n.9 (quotations

omitted). In fact, Ms. Mewborn took out the reference to Ms. Slack’s alleged use of confidential

information after she learned that Ms. Slack may not have used confidential information. See

“Unsatisfactory Performance” at 1. Given that the Court must presume that Ms. Mewborn was

“actuated by pure motives,” no reasonable jury could find that Ms. Mewborn acted with malice.

See Wallace, 715 A.2d 873 at 879.

       The Court will thus grant summary judgment on Count II to Ms. Mewborn.


                                     IV.    CONCLUSION


       For these reasons, the Defendants’ Motion for Summary Judgment will be granted as to

Count II and denied as to Count IV. The Court will dismiss Count V for a lack of jurisdiction.

A separate order will issue.



                                                                         2019.01.11
                                                                         18:18:30 -05'00'
Dated: January 11, 2019                              TREVOR N. McFADDEN, U.S.D.J.




                                                16
