                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
________________________________
                                )
SHELDON BATTLES,                )
                                )
               Plaintiff,       )
                                )
          v.                    )
                                ) Civil Action No. 16-1655 (EGS)
WASHINGTON METROPOLITAN AREA    )
TRANSIT AUTHORITY, SUMMON       )
CANNON and DEVIN WALKER         )
                                )
               Defendants.      )
________________________________)

                       MEMORANDUM OPINION

     Plaintiff Sheldon Battles, proceeding pro se, has sued

defendants Washington Metropolitan Area Transit Authority

("WMATA") and two of its employees – Summon Cannon and Devin

Walker (together, "Individual Defendants") – for breach of

contract, wrongful termination in violation of public policy,

defamation, intentional infliction of emotional distress, and

negligent infliction of emotional distress. Before the Court are

defendants' motions to dismiss the complaint under Federal Rules

of Civil Procedure 12(b)(1) and 12(b)(6). After careful

consideration of the complaint, the memoranda filed by the

parties, and the applicable case law, the Court grants in part

and denies in part WMATA's motion to dismiss, and grants the

Individual Defendants' motion to dismiss.




                                1
I.   FACTUAL BACKGROUND

     Mr. Battles, a Maryland resident, worked for WMATA from

January 1997 until his termination on November 27, 2015. Compl.

¶ 8. Originally hired as a bus operator, Mr. Battles earned a

series of promotions between 2007 and 2015, eventually holding

the position of Assistant Superintendent at the West Ox

Division. Id.

     The facts that eventually led to Mr. Battles' termination

and this subsequent lawsuit arise out of an approximately two-

month long consensual sexual relationship between Mr. Battles

and a subordinate female employee. Id. ¶ 9. The relationship

began in May 2015, while the employee was on leave. Id. ¶¶ 9-10.

By the time the employee returned to work on July 23, 2015, "the

relationship between the Plaintiff and the subordinate employee

had ceased." Id. ¶ 11.

     Shortly after returning to work, the employee "began

exhibiting attendance issues." Id. ¶ 12. As her supervisor, Mr.

Battles disciplined the employee about these issues on October

1, 2015. Id. ¶ 13. That same day, the employee filed a complaint

with WMATA accusing Mr. Battles of sexual harassment. Id. ¶ 14.

Defendant Devin Walker, an investigator in WMATA's Office of

Civil Rights, launched an investigation into the employee's

sexual-harassment allegations. Id. ¶¶ 15, 20. In the course of

the investigation, the employee "admit[ted] that her involvement


                                2
in the sexual relationship was [] consensual." Id. ¶ 17. At the

conclusion of the investigation, WMATA "found no probabl[e]

cause for sexual harassment" and the Office of Civil Rights

issued a determination letter finding that Mr. Battles had not

"violate[d] any Title VII laws or policies." Id. ¶¶ 15, 18.

Despite finding in favor of Mr. Battles on the sexual-harassment

allegations, Mr. Walker determined that Mr. Battles had violated

WMATA's nepotism/favoritism policy. Id. ¶¶ 20-21. As a result,

defendant Summon Cannon, the Superintendent, fired Mr. Battles

from his position on November 27, 2015. Id. ¶ 22.

     Mr. Battles claims that WMATA's stated reasons for

terminating his employment are "false and pretextual." Id. ¶ 8.

According to Mr. Battles, WMATA fired him "in retaliation for

his numerous complaints and reports regarding events and

practices that created an unsafe work environment for him and

create[d] conditions that undermined his ability to effectively

supervise his subordinates." Id. In particular, Mr. Battles

asserts that he was terminated as a result of his "complaints to

administrators about the disparate treatment his female

subordinates received after falsely accusing him of

inappropriate behavior" – e.g., "the female subordinate that

made the false allegations was not even disciplined." Id.

     Based on these allegations, Mr. Battles asserts five causes

of action: (1) wrongful termination (breach of contract), id. ¶¶


                                3
26-31; (2) wrongful termination (public policy violation), id.

¶¶ 32-37; (3) defamation, id. ¶¶ 38-51; (4) intentional

infliction of emotional distress, id. ¶¶ 52-55; and (5)

negligent infliction of emotional distress, id. ¶¶ 56-57. These

causes of actions are asserted against both WMATA and the

Individual Defendants. Mr. Battles seeks "lost past and future

wages" in an amount to be determined. Id. Prayer ¶ 3. He also

requests damages for "loss of employability, mental pain and

anguish and emotional distress." Id. Prayer ¶ 1. Finally, he

seeks punitive damages and costs available under any applicable

statutory provision. Id. Prayer ¶¶ 2, 4-9.

     WMATA and the Individual Defendants filed the instant

motions to dismiss on September 9 and 16, 2016, respectively,

arguing that they are entitled to dismissal on the basis of

sovereign immunity and because Mr. Battles fails to plausibly

allege his claims. See WMATA Mem. in Supp. of Mot. to Dismiss

("WMATA Mem."), ECF No. 3; Individual Defs.' Mem. in Supp. of

Mot. to Dismiss ("Individual Defs.' Mem."), ECF No. 4. Mr.

Battles timely opposed WMATA's motion to dismiss, and that

motion was fully ripe on September 28, 2016. See Pl.'s Mem. in

Opp. to WMATA's Mot. to Dismiss ("Pl.'s Opp."), ECF No. 5;

WMATA's Reply in Supp. of Mot. to Dismiss ("WMATA's Reply"), ECF

No. 6. Instead of opposing the Individual Defendants' motion to

dismiss, Mr. Battles moved to strike that motion as untimely


                                4
filed and for failure to provide accurate information on the

certificate of service. See Pl.'s Mot. to Strike, ECF No. 7. The

Court declined to strike the Individual Defendants' motion, but

it warned defendants that failure to provide accurate

information could lead to the imposition of sanctions. See

Minute Order (Apr. 4, 2017). The Court further directed Mr.

Battles to file his opposition to the Individual Defendants'

motion by no later than April 21, 2017. Id. Despite this Order,

Mr. Battles did not file any opposition to the Individual

Defendants' motion. Instead, on April 24, 2017, without seeking

leave of the Court, Mr. Battles filed a First Amended Complaint.

See Am. Compl., ECF No. 19. On May 8, 2017, WMATA and the

Individual Defendants moved to dismiss that complaint. See

WMATA's Mot. to Dismiss Pl.'s Am. Compl., ECF No. 22; Individual

Defs.' Mot. to Dismiss Pl.'s Am. Compl., ECF No. 21. To date,

Mr. Battles has not responded to either motion.

II.   STANDARD OF REVIEW

           A. Rule 12(b)(1) – Subject-Matter Jurisdiction

      "A federal district court may only hear a claim over which

[it] has subject-matter jurisdiction; therefore, a Rule 12(b)(1)

motion for dismissal is a threshold challenge to a court's

jurisdiction." Gregorio v. Hoover, 238 F. Supp. 3d 37 (D.D.C.

2017) (citation and internal quotation marks omitted). To

survive a Rule 12(b)(1) motion, the plaintiff bears the burden


                                 5
of establishing that the court has jurisdiction by a

preponderance of the evidence. Lujan v. Defenders of Wildlife,

504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

Because Rule 12(b)(1) concerns a court's ability to hear a

particular claim, "the court must scrutinize the plaintiff's

allegations more closely when considering a motion to dismiss

pursuant to Rule 12(b)(1) than it would under a motion to

dismiss pursuant to Rule 12(b)(6)." Schmidt v. U.S. Capitol

Police Bd., 826 F. Supp. 2d 59, 65 (D.D.C. 2011). In so doing,

the court must accept as true all of the factual allegations in

the complaint and draw all reasonable inferences in favor of the

plaintiff, but the court need not "accept inferences unsupported

by the facts alleged or legal conclusions that are cast as

factual allegations." Rann v. Chao, 154 F. Supp. 2d 61, 64

(D.D.C. 2001).

     In reviewing a motion to dismiss pursuant to Rule 12(b)(1),

the court "may consider such materials outside the pleadings as

it deems appropriate to resolve the question whether it has

jurisdiction to hear the case." Scolaro v. D.C. Bd. of Elections

& Ethics, 104 F. Supp. 2d 18, 22 (D.D.C. 2000); see also Jerome

Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir.

2005). Faced with motions to dismiss under Rule 12(b)(1) and

Rule 12(b)(6), a court should first consider the Rule 12(b)(1)

motion because "[o]nce a court determines that it lacks subject


                                6
matter jurisdiction, it can proceed no further." Ctr. for

Biological Diversity v. Jackson, 815 F. Supp. 2d 85, 90 (D.D.C.

2011) (citations and internal quotation marks omitted).

          B. Rule 12(b)(6) – Failure to State a Claim

     A motion to dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(6) tests the legal sufficiency of a complaint.

Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). A

complaint must 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, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal

quotation marks omitted).

     Despite this liberal pleading standard, 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." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct.

1937, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted).

A claim is facially plausible when the facts pled in the

complaint allow the court to "draw the reasonable inference that

the defendant is liable for the misconduct alleged." Id. The

standard does not amount to a "probability requirement," but it

does require more than a "sheer possibility that a defendant has

acted unlawfully." Id.


                                7
     "[W]hen ruling on a defendant's motion to dismiss [pursuant

to Rule 12(b)(6)], a judge must accept as true all of the

factual allegations contained in the complaint." Atherton v.

D.C. Office of the Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009)

(internal quotation marks omitted). In addition, the court must

give the plaintiff the "benefit of all inferences that can be

derived from the facts alleged." Kowal v. MCI Commc'ns Corp., 16

F.3d 1271, 1276 (D.C. Cir. 1994). A "pro se complaint is

entitled to liberal construction." Washington v. Geren, 675 F.

Supp. 2d 26, 31 (D.D.C. 2009) (citing Haines v. Kerner, 404 U.S.

519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)). Even so,

"[t]hreadbare recitals of the elements of a cause of action,

supported by mere conclusory statements" are not sufficient to

state a claim. Iqbal, 556 U.S. at 678.

III. DISCUSSION

          A. Amended Complaint

     The Court first addresses the propriety of Mr. Battles'

First Amended Complaint, which was filed on April 24, 2017. See

Am. Compl., ECF No. 19.

     Federal Rule of Civil Procedure 15 sets forth the

circumstances and procedures for amending pleadings. Under that

rule, a plaintiff may amend his complaint once "as a matter of

course" within 21 days of serving it or within 21 days of the

filing of a responsive pleading or certain Rule 12 motions. See


                                 8
Fed. R. Civ. P. 15(a)(1). Otherwise, he must seek consent of the

defendant or leave from the court. See Fed. R. Civ. P. 15(a)(2).

"The court should freely give leave [to amend] when justice so

requires." Id. Importantly, Rule 15(a) – and its direction to

courts to freely allow amendment of complaints – "applies only

when the plaintiff actually has moved for leave to amend the

complaint." Belizan v. Hershon, 434 F.3d 579, 582 (D.C. Cir.

2006). Absent such a motion, "there is nothing 'to be freely

given.'" Id.

     Here, Mr. Battles served his initial complaint on WMATA on

August 19, 2016. See Return of Service Affidavit, ECF No. 2. Mr.

Battles served the Individual Defendants a week later on August

25 and 26, 2016. See id. Defendants filed their Rule 12(b)(6)

motions in September 2016. See WMATA Mot. to Dismiss, ECF No. 3

(filed Sept. 9, 2016); Individual Defs.' Mot. to Dismiss, ECF

No. 4 (filed Sept. 16, 2016). As such, there can be no question

that Mr. Battles First Amended Complaint – which was filed on

April 24, 2017, approximately seven months after defendants'

moved to dismiss the initial complaint – was filed long after

the period for amendment "as a matter of course" had passed.

     As a result, Mr. Battles was required to obtain defendants'

written consent or seek leave of the court prior to filing his

First Amended Complaint. He did neither. See, e.g., WMATA's Mem.

in Supp. Mot. to Dismiss Am. Compl. at 3, ECF No. 22 ("Not only


                                9
has Plaintiff failed to seek consent for filing his Amended

Complaint, he has also failed to seek leave from the Court.").

Accordingly, the Court strikes the First Amended Complaint from

the record. See, e.g., Pinson v. U.S. Dep't of Justice, 975 F.

Supp. 2d 20, 28 (D.D.C. 2013) (striking pro se plaintiff's

second amended complaint where plaintiff failed to seek leave

before filing the complaint); cf. Alston v. Flagstar Bank, FSB,

609 F. App'x 2, 4 (D.C. Cir. 2015) (because plaintiff "did not

follow the court's rules governing amendments, it could hardly

have been an abuse of discretion for the district court to deny

leave to amend") (citation and internal quotation marks

omitted). 1

              B. Mr. Battles' Claims Against WMATA

                    (1) Mr. Battles' Breach-of-Contract Claim Cannot
                        Be Resolved on a Motion to Dismiss.

     In his first count, Mr. Battles alleges that WMATA breached

an "oral and implied contract" with him by "terminating [him]




1    The Court notes that the only new allegations in the First
Amended Complaint appear to relate to Mr. Battles' exhaustion of
administrative remedies. Even if Mr. Battles had alleged a claim
under Title VII or some other statutory or other scheme
requiring administrative exhaustion prior to filing suit, "[a]
plaintiff need not plead exhaustion in his complaint" because
"[f]ailure to exhaust administrative remedies is an affirmative
defense." Moore v. D.C., 445 Fed. Appx. 365, 366 (D.C. Cir.
2011). Accordingly, nothing in the First Amended Complaint would
alter the Court's analysis with respect to Mr. Battles' claims
at this stage in the litigation.


                                   10
for false, pretextual and defamatory reasons in retaliation for

his reports and complaints of disparate treatment." Compl. ¶¶

27-29.

     In its motion, WMATA initially argued that Mr. Battles'

breach-of-contract claim failed because Mr. Battles' position as

an Assistant Superintendent for Bus Service Operations was

considered "middle management." WMATA Mem. at 3. According to

WMATA, under its policy, middle managers are "at-will" employees

who can be discharged "at any time and for any reason, or for no

reason at all." Mem. at 3 (citing Adams v. George W. Cochran &

Co., 597 A.2d 28, 30 (D.C. 1991)).

     In his opposition, Mr. Battles asserts that "his employment

with [WMATA] is not at will." Pl.'s Opp. at 3. He further cites

Lance v. United Mine Workers of Am. 1974 Pension Tr., 355 F.

Supp. 2d 358, 360 (D.D.C. 2005), for the proposition that "an

employee handbook or other policy statement" can create an

enforceable contractual right in certain circumstances. Pl.'s

Opp. at 3. Mr. Battles states that, in this instance, an

"Employee Dispute Resolution" policy "create[d] an enforceable

right to the particular disciplinary procedures described

therein." Id. at 4.

     WMATA now appears to concede that Mr. Battles was not a

middle-management employee at the time of his termination. See

WMATA's Reply at 1 ("Plaintiff is correct that he was terminated


                               11
from his position as an Assistant Superintendent . . . which at

the time was considered a LS-10 position."). Instead, it now

argues that Mr. Battles' reliance on the employee dispute

resolution policy "backfires" because the policy specifically

excepts cases like that of Mr. Battles from the procedures it

sets forth. Id. at 1-2. WMATA further adds that, even if the

policy does apply, Mr. Battles' claim still fails because he

failed to "plead that he exhausted his administrative remedy

first before filing suit." Id. at 2.

     The Court   addresses WMATA's second argument first. The

Federal Rules of Civil Procedure "do not require a plaintiff to

anticipate affirmative defenses which might be raised by a

defendant." Chem-Met Co. v. Metaland Int'l, Inc., No. CIV. A.

96-2548(TAF), 1997 WL 74541, at *2 (D.D.C. Feb. 19, 1997).

Indeed, "the practice of pleading facts in a complaint to defeat

anticipated affirmative defenses is disfavored." Id. Consistent

with this principle, the D.C. Circuit has made clear that "[a]

plaintiff need not plead exhaustion in his complaint" because

"[f]ailure to exhaust administrative remedies is an affirmative

defense." Moore v. D.C., 445 Fed. Appx. 365, 366 (D.C. Cir.

2011).

     Moreover, the Court declines to convert WMATA's motion to

dismiss into one for summary judgment because WMATA itself has

not provided any proof to support its contention that Mr.


                                12
Battles failed to employ the dispute-resolution procedures

outlined in the policy. Instead, WMATA cursorily asserts that

Mr. Battles' "failure to exhaust [his] administrative rights

warrants dismissal of his Complaint." WMATA Reply at 2. This is

insufficient. See Drewrey v. Clinton, 763 F. Supp. 2d 54, 61

(D.D.C. 2011) ("Meager, conclusory allegations that the

plaintiff failed to exhaust his administrative remedies will not

satisfy the defendant's burden."). Accordingly, the Court will

not dismiss Mr. Battles' complaint on this ground. See, e.g.,

Kim v. United States, 632 F.3d 713, 719 (D.C. Cir. 2011)(because

plaintiffs "were free to omit exhaustion from their pleadings,"

summary judgment would be the appropriate stage to ascertain

plaintiffs' efforts toward exhaustion); Tapp v. Washington

Metro. Area Transit Auth., No. 15-CV-0768, 2016 WL 7441719, at

*11 (D.D.C. Sept. 30, 2016) ("because [plaintiff]'s amended

complaint does not allege any facts that relate to the

affirmative defense of non-exhaustion, this Court cannot

conclude, as a matter of law, that plaintiff cannot prove any

set of facts entitling him to relief") (citation and internal

quotation marks omitted).

     WMATA's other argument – that the dispute-resolution

procedures set out in the policy specifically exclude cases like

those of Mr. Battles' from their purview – fares no better.

WMATA claims that sexual-harassment complaints "are not eligible


                               13
for review" under the dispute-resolution policy. WMATA Reply at

1. According to WMATA, Mr. Battles' termination due to his

alleged failure to comply with the favoritism/nepotism policy

was "directly related" to an investigation of sexual harassment

– and therefore, Mr. Battles had no "right[]" to have his

dispute resolved pursuant to the policy. Id. at 1-2.

     At this stage in the litigation, during which the Court

must draw all inferences in favor of Mr. Battles, the Court

declines to find that Mr. Battles' termination was "directly

related" to the investigation into the sexual-harassment

allegations lodged against him. See Martin v. Washington Metro.

Area Transit Auth., 273 F. Supp. 2d 114, 117 (D.D.C. 2003)

(refusing to dismiss breach of implied contract claim "without

the benefit of affidavits" or other evidence). Although WMATA

may well be right that Mr. Battles has no enforceable contract

rights, the Court does not have sufficient evidence to make that

determination at this juncture. Accordingly, the Court will not

dismiss Mr. Battles' breach-of-contract claim against WMATA.

                (2) Mr. Battles' Common-Law Tort Claims Are
                    Barred By WMATA's Sovereign Immunity.

     Mr. Battles also seeks to maintain tort claims for wrongful

termination in violation of public policy, 2 defamation,



2    Although an employer can generally discharge an at-will
employee at any time, D.C. law recognizes an exception to this
rule in the intentional tort for wrongful discharge. See Herron

                                14
intentional infliction of emotional distress, and negligent

infliction of emotional distress against WMATA. WMATA argues

that all of Mr. Battles' tort claims must be dismissed because

"WMATA enjoys sovereign immunity for torts committed in the

performance of its discretionary decision to terminate the

Plaintiff from his employment." WMATA Mem. at 3-4.

     The Eleventh Amendment affords each state immunity from

suits brought against it in federal court. Morris v. Washington

Metro. Area Transit Auth., 781 F.2d 218, 222–23 (D.C. Cir.

1986). Although "the immunity is one of the state, some agencies

exercising state power have been permitted to invoke the

Amendment in order to protect the state treasury from liability

that would have had essentially the same practical consequences

as a judgment against the State itself." Morris v. Washington

Metro. Area Transit Auth., 781 F.2d 218, 223 (D.C. Cir. 1986)

(citation and internal quotation marks omitted). WMATA was

created by a compact enacted by Congress to which the

Commonwealth of Virginia, the State of Maryland, and the

District of Columbia are signatories. Jones v. Washington Metro.




v. Fannie Mae, No. CV 10-943 (RMC), 2016 WL 1177918, at *16
(D.D.C. Mar. 8, 2016). Under this exception, "there is a cause
of action for wrongful termination where an at-will employee
acted in furtherance of a public policy and was terminated
solely on the basis of such conduct." Id. (citation and internal
quotation marks omitted).


                               15
Area Transit Auth., 205 F.3d 428, 432 (D.C. Cir. 2000). The D.C.

Circuit has "consistently recognized that in signing the WMATA

Compact, Virginia and Maryland each conferred its immunity upon

WMATA." Id.

     Section 80 of the WMATA Compact includes a limited waiver

of immunity for tort claims "committed in the conduct of any

proprietary function" but not for "any torts occurring in the

performance of a governmental function." D.C. Code § 9-

1107.01(80). "Because it is difficult to distinguish between

public and private sector functions with any precision," a court

instead asks "whether the claim seeks to impose liability for

conduct that is discretionary, in which case the claim is barred

by immunity, or ministerial, in which case the claim may

proceed." Banneker Ventures, LLC v. Graham, 798 F.3d 1119, 1138

(D.C. Cir. 2015). "Discretionary duties generally involve

judgment, planning, or policy decisions and are immunized as

reflecting sovereign choices." Id. (citation and internal

quotation marks omitted). Ministerial duties, on the other hand,

"involve enforcement or administration of a mandatory duty at

the operational level," and are not immunized. Id.

     To determine whether a WMATA activity is discretionary –

and therefore shielded by sovereign immunity – the court must

apply a two-part test. See KiSKA Const. Corp. v. Washington

Metro. Area Transit Auth., 321 F.3d 1151, 1159 (D.C. Cir. 2003).


                               16
First, the court must determine "whether any statute,

regulation, or policy prescribes a course of action for [the

decisionmaker] follow." Id. (citation and internal quotation

marks omitted). If so, sovereign immunity does not apply. If the

governing statutes or regulations leave room for the exercise of

discretion – or if there is no governing regulation prescribing

a course of conduct at all – then the court must ask whether the

decisionmaker's "exercise of discretion is grounded in social,

economic, or political goals." Id. If the answer to that

question is affirmative, then the decision at issue is

"susceptible to policy judgement" and thus fits "within section

80's retention of sovereign immunity." Id.

     Here, WMATA's decision to terminate Mr. Battles' employment

was an exercise of discretion and therefore shielded from

liability by WMATA's sovereign immunity. As the D.C. Circuit has

explained, "[a]lthough employment decisions are not

quintessential governmental functions – after all, private

entities also hire and fire employees – [] decisions concerning

the hiring, training and supervising of WMATA employees are

discretionary in nature, and thus immune from judicial review."

Beebe v. Washington Metro. Area Transit Auth., 129 F.3d 1283,

1287 (D.C. Cir. 1997) (citation and internal quotation marks

omitted). This is because the Compact "confers broad powers on

WMATA to . . . provide for the qualification, appointment, [and]


                               17
removal" of its employees. Id. Mr. Battles' tort allegations

arise out of an internal investigation conducted by WMATA

through which it determined that Mr. Battles had violated work

policies related to favoritism. Mr. Battles has not pointed to

any "statute, regulation, or policy" that prescribes WMATA's

decision. To the contrary, this type of employment decision

inherently involves an "exercise of discretion . . . grounded in

social, economic, or political goals," "including budgetary

constraints, public perception, economic conditions, individual

backgrounds, office diversity, experience and employer

intuition." Beebe, 129 F.3d at 1287-88 (citation and internal

quotation marks omitted).

     In his opposition, Mr. Battles attempts to avoid immunity

by pointing to the Civil Rights Remedies Equalization Act. Pl.'s

Opp. at 5. That statue provides that

     [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.

42 U.S.C. § 2000d–7(a)(1) (2006).

     Although it is not wholly clear what argument Mr. Battles

intends to advance, a liberal reading of his opposition suggests

that Mr. Battles believes that Congress intended to waive


                               18
WMATA's immunity from claims for discrimination and retaliation

through section 2000d-7. But Mr. Battles has not alleged any

federal causes of action, much less a cause of action under a

"Federal statute prohibiting discrimination by recipients of

Federal financial assistance." See Compl ¶¶ 32-57 (alleging

claims for wrongful termination, defamation, intentional

infliction of emotional distress, and negligent infliction of

emotional distress). Mr. Battles points to no authority, and the

Court has found none, that suggests WMATA has waived its

immunity from state-law tort claims in federal court through

section 2000d-7.

     In short, WMATA is shielded from liability for Mr. Battles'

tort claims stemming from WMATA's decision to terminate Mr.

Battles' employment. See, e.g., Tapp, 2016 WL 7441719, at *9

("any tortious conduct that WMATA may have committed here is

immune from suit because such torts arose out of WMATA's

administration of its personnel system and property, and its

decision in this regard was made pursuant to the exercise of its

discretion") (citation and internal quotation marks omitted);

Malloy v. Washington Metro. Area Transit Auth., 187 F. Supp. 3d

34, 45 (D.D.C. 2016) ("WMATA's actions in suspending and

removing Malloy from his position . . . are immune for suit in

tort."); Headen v. Washington Metro. Area Transit Auth., 741 F.

Supp. 2d 289, 295-96 (D.D.C. 2010) (dismissing plaintiff's


                               19
claims for defamation, wrongful termination, and intentional

infliction of emotional distress because "WMATA is not liable

for torts concerning personnel decisions").

          C. Mr. Battles' Claims Against The Individual
             Defendants

     Mr. Battles also asserts his contract and tort claims

against Summon Cannon, the superintendent who fired him, and

Devin Walker, the WMATA employee who conducted the investigation

into the sexual-harassment claim lodged against him. Mr. Cannon

and Mr. Walker argue that they are immune from all of Mr.

Battles' claims pursuant to the interstate compact creating

WMATA. Ind. Defs.' Mem. at 2-4. Section 80 of the Compact

provides, in relevant part:

     The Authority shall be liable for its contracts and
     for its torts and those of its Directors, officers,
     employees and agent committed in the conduct of any
     proprietary function . . . . The exclusive remedy for
     such breach of contracts and torts for which the
     Authority shall be liable, as herein provided, shall
     be by suit against the Authority.

D.C. Code Ann. § 9-1107.01(80) (emphases added). "In other

words, for torts committed in the course of proprietary or

ministerial functions, WMATA is liable and its employees

immune." Beebe, 129 F.3d at 1288.

     Mr. Cannon and Mr. Walker assert that section 80 "makes

WMATA the exclusive defendant for any contractual claims,"

requiring dismissal of Mr. Battles' breach-of-contract claim.




                               20
Individual Defs.' Mem. at 2-3. Mr. Cannon and Mr. Walker further

argue that section 80 precludes any tort liability as well

because they were acting within the scope of their official

duties and because "[t]orts arising out of personnel decisions

are discretionary decisions shielded by WMATA's sovereign

immunity." Id. at 3.

     Despite being directed to file his opposition to the

Individual Defendants' motion to dismiss by April 21, 2017, see

April 4, 2017 Minute Order, Mr. Battles failed to do so and

accordingly offers no response to this argument. In his

complaint, Mr. Battles does not allege that Mr. Cannon or Mr.

Walker acted outside the scope of their official duties. To the

contrary, Mr. Battles' scant particularized allegations against

these defendants indicate that both defendants were acting well

within the scope of their official duties. See Compl. ¶¶ 15-21

(describing Mr. Walker's involvement in the EEOC investigation

of the sexual-harassment claim filed against Mr. Battles); id. ¶

22 ("[A]s a result of [Mr. Walker's] erroneous finding [that

Plaintiff violated WMATA's nepotism/favoritism policy],

Superintendent Summon Cannon did, on November 27, 2015,

terminate Plaintiff from his position[.]").

     Because Mr. Cannon and Mr. Walker were acting within the

scope of their official duties, and because this Court has

already found that they were engaged in discretionary functions,


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see supra Part III.B.2, Mr. Cannon and Mr. Walker are immune

from suit. Therefore, all of Mr. Battles' claims against them

must be dismissed.

IV.   Conclusion

      For the reasons explained above, WMATA's motion to dismiss

is GRANTED IN PART and DENIED IN PART. Specifically, WMATA is

immune from liability from Mr. Battles' tort claims, and

therefore Counts II, III, IV, and V against WMATA are dismissed

with prejudice. Mr. Battles' breach-of-contract claim – Count I

– survives WMATA's motion to dismiss. The Individual Defendants

are immune from liability from all of Mr. Battles' claims, and

therefore Counts I, II, III, IV, and V against Mr. Cannon and

Mr. Walker are dismissed with prejudice. WMATA and the

Individual Defendants' motions to dismiss Mr. Battles' amended

complaint are DENIED as moot. An appropriate Order accompanies

this Memorandum Opinion.

      SO ORDERED.

Signed:    Emmet G. Sullivan
           United States District Judge
           September 28, 2017




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