UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

HABAKUK NDZERRE,
Plaintiff,

Civil Case No. 17-90 (RJL)

WASHINGTON METROPOLITAN
AREA TRANSIT AUTHORITY,

FILED
JuN212017

Clark, U.S. D|str|ct & Bankruptcy
Courts for the D|strict of Co|umb|a

Defendant.

MEMoRAN UM oPINIoN
(June ll 2017) [# 4]

Plaintiff, Habakuk Ndzerre (“Ndzerre” or “plaintiff”), brings this action, pro se,
alleging that defendant, Washington Metropolitan Area Transit Authority (“WMATA” or
“defendant”), discriminated against him in violation of (l) the F ederal Family and
Medical Leave Act, 29 U.S.C. § 2601 (“FMLA”); (2) the District of Columbia Family
and Medical Leave Act, D.C. Code § 32-501 (“DCFMLA”); (3) the District of Columbia
Human Rights Act, D.C. Code § 2-1401 (“DCHRA”); and (4) 42 U.S.C. § 1983. This
matter is now before the Court on defendant’s Motion to Dismiss [Dkt. # 4]. Upon
consideration of the parties’ submissions, defendant’s motion is GRANTED and
plaintiff’s case Will be DISMISSED With prejudice.

BACKGROUND
Plaintiff, Who Was born in Cameroon, has been employed by WMATA as an

automatic train control mechanic since January 3, 2000. See Compl. 1111 12, l4, l7. In his

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complaint,l plaintiff details a series of allegedly unlawful actions by WMATA beginning
in 2013, including allegations of an ongoing pattern and practice of discrimination
against Ndzerre on the basis of his race, color, and national origin, a hostile work
environment, intentional infliction of emotional distress, wrongful denial of FMLA leave,
and various violations of his constitutional rights. Id. at ll l4.

To begin with, plaintiff believes he was denied his rights under the FMLA and the
DCFMLA on two occasions. First, plaintiff alleges that on December 2l, 2015,
WMATA wrongfully denied him FMLA leave for a health condition that was “caused by
WMATA’s hazardous, hostile[,] or abusive work environment.” Id. at ll 15. He asserts
that, beginning on November 4, 2015, he was eligible to receive approximately l2 weeks
of DCFMLA and/or FMLA leave because he was suffering from gastrointestinal
bleeding, gastroesophageal reflux disease, and hemorrhoids. Id. at ll 20. After receiving
outpatient surgery for these conditions, Ndzerre contends he was unable to return to work
because he could not lift heavy materials. Icz’. at ll 2l. After plaintiff submitted the
required FMLA paperwork to WMATA, defendant denied him FMLA leave on the
ground that his condition did not qualify as a serious health condition and that no medical
condition was indicated on his FMLA certification Ia’. at ll 26. As a result, plaintiff was

forced to use his accrued personal leave to care for his condition. Ia’. at ll 15. Second, in

 

‘ Plaintiff filed this complaint on January l3, 2017. On August 7, 2015, he filed a related amended
complaint, which is currently still pending before this Court. In that case, Ndzerre alleged that Wl\/IATA
violated the Fl\/ILA, the DCHRA, the Occupational Safety and Health Act (“OSHA”), the National
Transit Systems Security Act (“NTSSA”), and Title Vll. This Court dismissed Plaintiff`s NTSSA,
DCI-IRA, OSHA, and FMLA claims. See Na’zerre v. Washl'nglon Metro. Area TransitAuth., 174 F. Supp.
3d 58 (D.D.C. 20l6). Only the Title VII allegation remains in that case.

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July of 2016, plaintiff submitted an FMLA application to his immediate supervisor
because he needed time to recover from another outpatient surgery related to his
gastrointestinal condition. Id. at llll 27-28. WMATA allegedly failed to “responsively
answer” the FMLA request and failed to give Ndzerre proper notice as required by the
Fl\/ILA. Id. at ll 30. Plaintiff was ultimately denied leave. Id. at ll 28.

Plaintiff also alleges that he was subject to discrimination, harassment, and a
hostile work environment in violation of the DCHRA. ln particular, he alleges that
WMATA “failed to provide him with a reasonable accommodation, denied him his
employment benefit[,] and subjected him to other adverse and disparate treatment that
interfered with, and negatively impacted, the terms and conditions of [his] employment.”
Id. at ll 81. Ndzerre further claims that WMATA was aware that he was suffering from
“severe and major depression” from his gastrointestinal bleeding, and that WMATA
persisted in discriminating against him because it “perceived [his] race, color[,] and
national origin as being [a] foreigner or as a second class citizen.” Icz’. at ll 89. Plaintiff
also asserts that WMATA “harassed, retaliated[,] and denied [him] leave, and harassed
him by threatening to terminate his employment” because of his race and national origin.
Id. at ll 9l.

Next, plaintiff alleges that Wl\/IATA committed the tort of intentional infliction of
emotional distress by subjecting him to discrimination, extreme harassment, and a hostile
work environment because of his race, color, and national origin. Ia’. at ll 95.
Speciflcally, Ndzerre contends that WMATA harassed him, failed to provide him with

FMLA notice, intimidated him, denied him leave, threatened to terminate him, and

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ultimately terminated him because of his race. Ia’. at ll 97.2 Plaintiff additionally claims
that he has suffered panic and anxiety attacks, severe depression, embarrassment,
humiliation, inability to sleep, fatigue, loss of concentration, and loss of appetite as a
result of WMATA’s conduct. Id. at llll 98, lOl.

Finally, it appears that plaintiff has attempted to state a claim against WMATA
under 42 U.S.C. § 1983 for violations of his First, Eighth, and Fourteenth Amendment
rights. To support his constitutional claims, plaintiff alleges that WMATA violated his
First Amendment rights “to not speak and not to be retaliated against for speaking.” Id.
at ll 6l. He contends that WMATA also “violated [his] Eight[h] Amendment Rights to
be free of cruel and unusual punishment (‘mentally and physically’).” Id. at ll 60. And
he alleges that WMATA “has not subjected employees born in the United States to
similar acts constituting a hostile or abusive work environment,” and that WMATA thus
violated his Fourteenth Amendment right “to be treated equally to those similarly situated
as him.” Id. at llll 34, 6l.

STANDARD OF REVlEW
“To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.”’ Ashcrofl
v. Iqbal, 556 U.S. 662, 678 (2()()9) (quoting BellAtlantl'c Corp, v. Twombly, 550 U.S.

544, 570 (2007)). This Court is not “bound to accept as true a legal conclusion couched

 

2 Although plaintiff here alleges that WMATA terminated his employment, see Compl. at ll 97, at various
other points throughout his complaint, he suggests that he is still currently employed by WMATA. See,
e.g., Compl. at ll l2 (“Wl\/IATA has been and it is the employer of Mr. Ndzerre.”). This Court’s legal
analysis of plaintiffs claims and defendant’s motion to dismiss is unaffected by whether plaintiff was
actually terminated or not.

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as a factual allegation.” Id. ln determining whether a complaint fails to state a claim,
“[the Court] may consider only the facts alleged in the complaint, any documents either
attached to or incorporated in the complaint and matters of which [the Court] may take
judicial notice.” E.E.O.C. v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C.
Cir. 1997). While pro se complaints are liberally construed, “even a pro se plaintiff must
plead factual matter that permits the court to infer more than the mere possibility of
misconduct.” Plummer v. Safeway, Inc., 934 F. Supp. 2d 191, 195 (D.D.C. 2013)
(internal quotation marks omitted).
ANALYSIS

A. Family and Medical Leave Act Claim

Defendant asserts that Ndzerre’s FMLA claim must be dismissed because
WMATA enjoys Eleventh Amendment immunity for alleged violations of the self-care
provisions ofthe FMLA. See Mem. of P. & A. in Supp. of Def.’s Mot. to Dismiss
(“Def.’s Mem.”) at 3. For the following reasons, l agree.

Wl\/IATA is an interstate compact agency, created by a compact enacted by
Congress and to which the Commonwealth of Virginia, the State of l\/I_aryland, and the
District ofColumbia are signatories. Jones v. Washz`ngton Metro. Area Transz`tAuth., 205
F.3d 428, 432 (D.C. Cir. 2000). Our Circuit has “consistently recognized that in signing
the Wl\/lA'l"/\ Compact, Virginia and l\/laryland each conferred its immunity upon
Wl\/lA'l`A, which therefore enjoys, to the same extent as each state, immunity from suit in
federal court based on its performance of governmental functions.” ld. Our Circuit has

also held that “Wl\/IA"[`A’s ‘ governmental function’ immunity encompasses ‘the hiring,

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training, and supervision of Wl\/lA'l`/~\ personnel,’ which is the kind ofconduct for which
lNdZerre] seeks to hold Wl\/lA"l"A liable” under the Fl\/ll_iA. /d. The only remaining
question therefore is whether, as defendant has argued, in enacting the Fl\/lI_JA Congress
abrogated the states’ (and thus Wl\/lA"[`/\’s) Eleventh Amendment immunity from Fl_\/llpA
liability. Unfortunately for plaintiff, the Suprcme Court has answered that question in the
negative Although the Suprcme Court has held that states are not immune from the
family-care provision of the FMLA, see Nevaa’a Dep ’t of Humcm Res. v. Hl`bbs, 538 U.S.
721 (2003), it has affirmed that Congress did not validly abrogate states’ sovereign
immunity from suits for money damages in enacting FMLA’s self-care provision
Colemcm v. Court oprpeals ofMarylcmd, 566 U.S. 30 (2012); see also, e.g., McK![rzfic
v. 361h .]L¢dicial Circuit Court_, 508 F.3d 875, 877 (8th Cir. 2007) (Eleventh Amendment
bars suit against a state for violation of the self-care provisions of the Fl\/_ILA); Toeller v.
Wisconsin Dep ’t ofCorr., 461 F.3d 871 (7th Cir. 2006) (Congress did not effect valid
abrogation of state sovereign immunity in enacting Fl\/ILA’s self-care provision); Touvell
v. Ohio Dep ’t ofMenlal Retaro’atl'on & Developmental Disabl`lities, 422 F.3d 392 (6th
Cir. 2005) (Eleventh Amendment barred claim that self-care provision was violated).

ln his complaint, plaintiff alleges that WMATA unfairly denied his request for
leave to care for his own medical conditions. See Compl. at llll 20-21, 27-28. Therefore,
plaintiff`s request for leave under the Fl\/ILA fell under the statute’s self-care provision,

and the Eleventh Amendment bars such claims against WMATA. Plaintiff" s FMLA

claim is accordingly dismissed.

B. District of Columbia Family and Medical Leave Act Claim

Defendant also seeks dismissal of plaintiffs DCFMLA claim on the ground that
WMATA is not subject to that statute. See Def.’s Mem. at 4-5. Defendant is correct.
Because WMATA is an interstate compact agency and instrumentality of three separate
jurisdictions_Virginia, Maryland, and D.C._“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.” Lucero-Nelson v.
Washz'ngton Metro. Area TransitAuz‘h., l F. Supp. 2d 1, 7 (D.D.C. 1998). Because there
is “no indication that Virginia and Maryland have consented to the application of District
of Columbia law” to WMATA_and plaintiff does not so argue_plaintiff’ s DCFMLA
claim must be dismissed Sampson v. Washington Metro. Area Transz`tAut/a., No. CIV.A.

04-1767 GK, 2005 WL 3276277, at *3 (D.D.C. Aug. 9, 2005).

C. District of Columbia Human Rights Act Claims
Defendant similarly argues that plaintiffs DCHRA claims must be dismissed
because WMATA is not subject to that statute. See Def.’s Mem. at 4-5. For the same
reasons discussed with regard to plaintiffs DCFMLA claim above, I agree. Plaintiff’s
DCHRA claims are accordingly dismissed
D. Intentional Infliction of Emotional Distress Claim

Defendant next submits that plaintiffs claim of intentional infliction of emotional
distress is not cognizable and must be dismissed because WMATA enjoys sovereign

immunity for torts arising out of decisions involving the supervision of its employees.

See Def.’s Mem. at 6. Indeed, our Circuit has held precisely that. ln Bw'khart v.
Washl`ngton Metro. Area Transz`z‘Auth., 112 F.3d 1207 (D.C. Cir. 1997), the D.C. Circuit
held that “decisions concerning the hiring, training, and supervising of WMATA
employees are discretionary in nature, and thus immune from judicial review.” Io’. at
1217. And the very conduct that plaintiff challenges here_including Wl\/IATA’s alleged
decision to deny him FMLA leave and failure to provide FMLA notice-falls squarely
within WMATA’s discretionary decisionmaking function. See Compl. at ll 97. l
therefore conclude that WMATA is immune from suit for alleged torts related to the
performance of such functions. Plaintiffs intentional infliction of emotional distress
claim is accordingly dismissed

E. Section 1983 Claims

Finally, defendant asserts that plaintiffs claims pursuant to § 1983 must be

dismissed because WMATA is not subject to that statute. See Def.’s Mem. at 8. Because
the Supreme Court has made clear that states_or entities that qualify as arms of the
state_are not “persons” within the meaning of § 1983, plaintiffs claims under that
statute must be dismissed See Will v. Ml`chl'gan Dep ’t ofStaIe Police, 491 U.S. 58, 70
(1989); see also Disabilily Rights Council of Greater Washington v. Washz`ngton Metro.
Area TransitAuth., 239 F.R.D. 9, 20 (D.D.C. 2006) (dismissing plaintiffs § 1983 claim
against WMATA because it is not a “person” and therefore cannot be sued under the
statute); Lucero-Nelson, 1 F. Supp. 2d at 7 (D.D.C. 1998) (rejecting plaintiffs § 1983
claim against Wl\/[ATA because “as an arm of the state Wl\/IATA is not a ‘person’ within

the meaning of the statute”).

CONCLUSION
For the foregoing reasons, defendant’s Motion to Dismiss is GRANTED and
plaintiffs claims are DISMISSED with prejudice. A separate Order consistent with this
decision accompanies this Memorandum Opinion. '
(\_jtetu@lw~\/
RiCHARD J.'LEQN '
United States District Judge

