MALLOY v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY et al

Filing 17

MEMORANDUM OPINION AND ORDER: Defendants' motions to dismiss 8 , 9 , are GRANTED. Defendants' motions to dismiss the superseded complaint, 2 , 6 , are DENIED as moot. Plaintiff's motion to deny the motions to dismiss 15 is DENIED. Plaintiff's motion to disqualify 13 , is DENIED. See attached document for details. Signed by Judge Randolph D. Moss on 5/20/2016. (lcrdm3, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

RICARDO MALLOY,
Plaintiff,
v.
WASHINGTON METROPOLITAN AREA
TRANSIT AUTHORITY and
AMALGAMATED TRANSIT UNION
LOCAL 689,

Civil Action No. 15-1499 (RDM)

Defendants.

MEMORANDUM OPINION AND ORDER
Ricardo Malloy, proceeding pro se, brings this suit against his former employer,
Washington Metropolitan Area Transit Authority (“WMATA”), and his former union,
Amalgamated Transit Union Local 689 (“Union”). The complaint includes allegations of
conspiracy, treason, slavery, and numerology, but at its core it alleges a dispute over Malloy’s
termination from WMATA and the alleged failure of his union to represent him adequately
during that process. Both WMATA and the Union have moved to dismiss. As explained below,
the Court concludes that Malloy’s most substantial claims are barred by the statute of limitations
and that his remaining claims are unsupported by plausible, factual allegations. The Court will,
accordingly, GRANT the Defendants’ motions and dismiss the complaint.
I. BACKGROUND
For purposes of resolving Defendants’ motions to dismiss, the Court accepts the
following allegations contained in the complaint as true. 1 See, e.g., Hishon v. King & Spalding,

1

All citations to the complaint are to the amended complaint found at Dkt. 3.

467 U.S. 69, 73 (1984). Malloy was employed by WMATA as a train operator for fifteen years.
Compl. ¶ 1. On January 5, 2013, he was operating a train that closed its doors on the arm of one
of Malloy’s supervisors, Rachael Corbie. Id. ¶ 26. According to a report Corbie filed, which
Malloy quotes in his complaint, Corbie immediately contacted Malloy on the train’s emergency
intercom, identified herself, asked that Malloy identify himself, and asked if Malloy “realized
that he held [Corbie] in the door?” Id. ¶ 27. The incident rapidly degenerated into a verbal and
physical confrontation. Rather than respond to his supervisor’s question, Malloy asked Corbie
whether she had heard the “chimes,” indicating that the doors were about to close. Id. When
Corbie indicated that she was not given ample time to avoid the doors, Malloy “cut [her] off,”
and once again asked, “did you or did you not hear the door chimes!” Id. Corbie then informed
Malloy that she was taking him “out of service,” and, at the next stop, she walked down the
platform and entered the “operating cab.” Id. ¶ 28. As Malloy was leaving the cab, Corbie
instructed him not to leave. Id. Disregarding Corbie, Malloy left the cab, “bumping the right
side of [Corbie’s] body,” and told Corbie that he was “out of service” and that she should operate
the train. Id. After the train arrived at the Greenbelt Terminal, Malloy once again approached
Corbie and again asked whether she “did not hear the door announcement.” Id. ¶ 29. Corbie
asked Mallory “to leave [her] alone.” Id. The transit police were summoned and took statements
from both Malloy and Corbie. Id. ¶ 30.
Six days after this incident, WMATA superintendent Edwin Harris emailed Lisa CooperLucas, who was apparently the point of contact for WMATA’s Employee Assistance Program,
and asked how he “could get [Malloy] . . . some type of (mental) fitness for duty evaluation.”
Compl. ¶ 43. Harris described Malloy as “an employee who has been displaying some very
erratic and irrational behavior” and recounted two incidents in the recent past. Id. ¶ 42. One was

2

the episode with Corbie; the other occurred several weeks earlier when Malloy was also “taken
out of service,” this time for “operating his train with a safety switch unsealed.” Id. ¶ 42. The
email further explained that following the incident involving the safety switch, Malloy became
irate and began “screaming in the hallway and the office of [Harris’s] assistant and demanded a
letter” addressing certain problems with Metro. Id. Harris added that “[t]hese are just two in a
string of incidents with [Malloy] and each time there is [an] event, he always writes long reports
describing a conspiracy theory that the Authority/Union is out to get him.” Id. ¶ 43. Finally,
Harris wrote that he did not believe that Malloy could “operate a train safely.” Id.
Although the complaint does not recount Cooper-Lucas’s response, Harris told Malloy to
report to the Employee Assistance Program for a medical exam on January 15, 2013. Compl.
¶ 44. When Malloy asked why this was necessary, Harris allegedly stated that he was “not going
to argue with” Malloy and that “because of his relationship with the Freemasons,” neither “the
arbitrator[] nor the public would hear of [Malloy’s] grievance.” Id. ¶ 44. Malloy then contacted
a union officer and explained that he had been instructed to undergo a medical examination and
that Harris had refused to provide any reason for this direction. Id. ¶ 45. In response, the union
officer allegedly told Malloy that Harris could indeed require him to undergo a medical exam
without offering an explanation. Id. Malloy then signed a form acknowledging that he had to
submit to the exam but wrote on the form that he did “not understand the purpose or the goal of
this examination,” but he was complying because he had “been instructed to make the
appointment o[r] lose [his] position as a train operator.” Id.
Malloy arrived for his evaluation the next day and began by filling out a questionnaire.
Compl. ¶ 48. At that point, he alleges, “Dr. Thomas, whom [Malloy] had never met, led [him] to
her office wearing an inappropriately tight, fuchsia, or light purple dress.” Id. Malloy then

3

began to record their conversation with a mini-recorder. Id. The contents of that recording are
not part of the record. Malloy alleges that Dr. Thomas explained that he had been referred to her
for evaluation because of his aggressive behavior during the two incidents mentioned in Harris’s
email. Id. Malloy alleges that he “answered all of Dr. Thomas’s questions” and provided “full
explanations.” Id.
According to the complaint, WMATA extensively investigated the incident involving
Corbie. Corbie and others submitted reports to WMATA, as did the transit police. Compl.
¶¶ 37–40, 58. Following this investigation, Malloy received a letter from Harris recounting
WMATA’s findings and its conclusion that Malloy was “disrespectful, rude and threatening” in
his encounter with Corbie. Id. ¶ 58. Based on this “deplorable” conduct, Malloy was suspended
for 22 days without pay and was directed “to attend a Workplace Violence class and anger
Management counseling.” Id. Malloy was further informed that “[a]ny future serious
operational violations of the rules or policy will result in your immediate termination from
WMATA.” Id. ¶ 59.
Malloy filed a grievance regarding this suspension on February 22, 2013. 2 Compl. ¶ 66.
The following day, he received a letter from Dr. Thomas explaining that she was recommending
that he “seek treatment with a licensed psychologist, therapist, and/or psychiatrist” due to the
“significant concerns” she had regarding “the escalation of [Malloy’s] aggressive behaviors at
work.” Id. ¶ 67. The letter further informed Malloy that he would remain on medical leave
“during this phase of [his] treatment” and that he would not be allowed to return to work until (1)
Dr. Thomas was provided with a letter from Malloy’s “treatment provider(s)” detailing his

2

Malloy had earlier filed a grievance on January 14, 2013, see Compl. ¶ 46, but had to re-file it
for technical reasons, id. ¶ 65. That procedural issue is irrelevant to the result in this case.
4

“diagnosis, . . . treatment, prognosis [and] any [appropriate work] limitations and/or medication
regimens,” and (2) Dr. Thomas approved his return to work. Id. ¶¶ 68–69. Malloy was
permitted to use his “paid time off” during this period, and was informed that other options,
including short-term disability, might be available after Malloy exhausted his paid time off. Id.
¶ 69.
Over the next several months, there was a constant back-and-forth among Malloy, the
Union, and WMATA concerning his grievances and various other issues. See, e.g., Compl.
¶¶ 70–154. In the meantime, WMATA sent Malloy a letter on June 10, 2013, reminding him
that he would remain on medical leave while he obtained the treatment that Dr. Thomas
recommended and that he was required to submit a letter from his “treatment provider(s)”
describing his “diagnosis, . . . treatment, and prognosis” before he could return to work. Id.
¶¶ 167–68. WMATA then wrote to Malloy again on September 5, 2013, noting that he had yet
WMATA would “begin administrative action to discharge” him. Id. ¶168–69. Although Malloy
“to provide the requested information” and that, if he failed to do so by September 16, 2013,

did provide some documents to the WMATA medical office, WMATA concluded that those
documents failed to comply with the request contained in Dr. Thomas’s letter. Id. ¶ 169.

WMATA, accordingly, concluded that Malloy had failed to timely provide the requested medical
information and fired him on that basis on September 19, 2013. Id. ¶¶ 170–71.
Malloy filed a grievance on October 4, 2013, contesting his termination. Compl. ¶ 177.
After WMATA denied that grievance, the Union agreed to arbitrate it on his behalf. Id. ¶ 265.
The Union hired Douglas Taylor of Gromfine, Taylor, and Tyler, P.C., to represent it (and thus
to advance Malloy’s interests) in the arbitration proceeding. Id. ¶¶ 276, 279. Dr. Thomas was
the lone witness at the November 19, 2014, arbitration hearing. Id. ¶ 280. She testified about

5

her evaluation of Malloy and that she never received the verification of treatment she had
directed he undergo. Id. She also appears to have offered a diagnosis of Malloy, id. ¶¶ 280, 284,
although the complaint does not specify that diagnosis. 3 At some point, it appears that Malloy
revealed that he had recorded the session with Dr. Thomas and asserted that the recording would
prove that her testimony was false. Id. ¶¶ 281, 283–84. It also appears—although the complaint
is vague on this point—that the arbitration proceeding was scheduled to continue on a future day
so that Malloy could produce the recording. Id. ¶ 284, 286–88.
Taylor emailed Malloy on December 10, 2014, to go over the status of the arbitration
proceeding. Compl. ¶ 284. He explained that Malloy’s case came down to attacking Dr.
Thomas’s diagnosis, which Malloy alleged was based on false reports about his work and a false
account of what happened at his medical evaluation. Id. Taylor continued that the Union
“need[ed] to use [Malloy’s recording] to prevail” in the proceeding and that the arbitrator was
prepared to exclude the recording altogether because the Union had still not produced it despite
an apparent promise to do so. Id. As a result, Taylor instructed Malloy that he “must produce a
copy of the tape” before the second arbitration hearing and that if he did not, Taylor would
“conclude that [he was] not cooperating” and would “recommend that the Union cease
arbitrat[ing] [the] case.” Id. ¶ 286.
Based on what appears to be a transcript that Malloy personally prepared of the second
arbitration hearing and attached to his opposition to the motions to dismiss, Malloy argued at the
second session of the hearing that the tape was unnecessary because he was not fired based on
his diagnosis but based on his failure to provide the necessary paperwork to Dr. Thomas. See

3

The complaint elsewhere suggests that at some unnamed time Dr. Thomas had diagnosed
Malloy with Intermittent Explosive Disorder. Id. ¶ 98.
6

Dkt. 15 at 21–24. That hearing concluded with Malloy refusing to produce the tape and Taylor
stating he would have to consult with the Union about how to proceed. Id. at 23–24. A couple
of weeks later, Malloy emailed Taylor to ask if the Union had dropped his grievance from
arbitration. Compl. ¶ 289. Taylor responded that his “advice to the local and their direction to
me are confidential, privileged communications,” that he understood that Malloy was no longer a
“qualified” member of the Union, and that his grievance had been dropped. Id. ¶ 290. In light of
Malloy’s stated intention to sue the Union, Taylor also explained that his communications with
Malloy were now “adversarial” and that he “must preserve the intents and confidentiality of [his]
client.” Id.
Malloy then sued WMATA and Local 689. At the time he originally attempted to file
suit, Malloy sought leave to proceed without paying the filing fee—known as proceeding in
forma pauperis. See Case No. 15-mc-1112, Dkt. 1-1. That application, which was dated July
19, 2015, id. at 2, was denied by Judge Jackson on August 21, 2015. See Case No. 15-mc-1112,
Dkt. 1. Malloy paid the filing fee on September 15, 2015, and his original complaint was
docketed at that time. See id. After the Union moved to dismiss, see Dkt. 2 (Case No. 15-cv1499), Malloy filed an amended complaint, see Dkt. 3. WMATA filed a motion to dismiss two
days later, see Dkt. 6, but that motion was in response to the original complaint, which had been
superseded by that time. Both WMATA and the Union have now moved to dismiss the amended
complaint. See Dkts. 8, 9.
Malloy’s complaint is 79 pages and 301 paragraphs long. It contains multiple accounts
of the incidents in this case, including what appears to be language taken verbatim from various
documents submitted as part of the grievance and arbitration processes. Many of the allegations
in the complaint, for example, use the first person but are from the perspective of someone other

7

than Malloy. The complaint also contains a great deal of material that does not bear a clear
connection to Malloy’s suspension, termination, or grievance, including references to
numerology, the Masons, the Illuminati, conspiracies, treason, and slavery. Compl. ¶¶ 24–25.
Omitting repetition, the complaint asserts ten counts. The first is against WMATA for
breach of the collective bargaining agreement between the Union and WMATA. Compl. at 75. 4
The second is against Local 689 for breach of the duty of fair representation, taking issue with
how the Union represented him in the arbitration process. Id. These same claims are then
repeated as counts eight and nine, respectively. Id. at 76. Other counts allege “police
misconduct,” wire and mail fraud, due process violations, intentional infliction of emotional
distress, defamation, and mental health malpractice. Id. at 75–77.
Before the Court now are Defendants’ motions to dismiss the complaint under Federal
Rule of Civil Procedure 12(b)(6). Malloy responded to those motions with a “motion to deny”
them, Dkt. 15, which the Court will construe as his opposition. He has also filed a motion to
disqualify the Union as opposing counsel. See Dkt. 13.
II. STANDARD OF REVIEW
A party moving to dismiss a complaint under Rule 12(b)(6) bears the burden of showing
that the complaint “fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ. P.
12(b)(6); see also Cohen v. Bd. of Trs. of Univ. of D.C., No. 15-7005, slip op. at 7 (D.C. Cir. Apr.
22, 2016). “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.’ A claim has facial

4

The amended complaint contains two pages with the number “75” at the bottom. The Court
will refer to the page that corresponds with the actual number of pages in the document, so that it
will refer to the second page labeled as “75” as page 76, the page labeled as “76” as page 77, and
so on. This affects only a handful of pages, as the amended complaint is 79 pages long.
8

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, 556 U.S.
662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 570 (2007)
(citation omitted)). The Court need not accept as true any legal conclusions disguised as factual
allegations, “‘naked assertions’ devoid of ‘further factual development,’” or a “‘formulaic
recitation of the elements of a cause of action.’” Id. (quoting Twombly, 550 U.S. at 555, 557).
The plaintiff, however, is entitled to “the benefit of all inferences that can be derived from the
facts alleged.” See Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011).
III. DISCUSSION
A.

Breach of Collective Bargaining Agreement and Duty of Fair Representation Claims
Malloy’s first two claims are closely related. The first count alleges that WMATA

breached the collective bargaining agreement it had with the Union by suspending and
eventually firing him “without cause,” and the second count alleges that the Union breached its
duty of fair representation stemming from the arbitration process. Compl. at 75–76.
The Supreme Court addressed claims of this type in DelCostello v. Int’l Bhd. of
Teamsters, 462 U.S. 151 (1983). There, the Court explained that in the ordinary course a union
member who wants to sue his union or his employer must exhaust “any grievance or arbitration
remedies provided in the collective bargaining agreement.” Id. at 163. The employee is then
typically “bound by the result according to the finality provisions of the agreement” and entitled
to only “very limited” judicial review. Id. at 164. Review is available, however, “when the
union representing the employee in the grievance/arbitration procedure acts in such a
discriminatory, dishonest, arbitrary, or perfunctory fashion as to breach its duty of fair
representation.” Id. In those circumstances, the employee “may bring suit against both the

9

employer and the union, notwithstanding the outcome or finality of the grievance or arbitration
proceeding.” Id. Claims of this type, which are known as a “hybrid § 301/fair representation
claims,” thus involve two distinct causes of action—one against the employer under § 301 of the
Labor Management Relations Act, the other against the union for breach of the duty of fair
representation, which is implied under the National Labor Relations Act. Id. But “the two
[claims] are inextricably related,” because “to prevail against either” defendant, the employee
“must not only show that [his] discharge was contrary to the contract but must also carry the
burden of demonstrating a breach of duty by the Union.” Id. at 165 (internal quotation marks
omitted).
In addition to describing the requirements for alleging hybrid claims, like those alleged
here, DelCostello also addressed the statute of limitations applicable to such claims. While
stressing that it was not abandoning its “prior practice [of] borrowing limitations periods for
federal causes of action” from analogous state-law provisions, the Court concluded that the sixmonth statute of limitations “for making charges of unfair labor practices to the NLRB” provided
“a closer analogy than available in state statutes.” Id. at 169, 171–72. The Court, accordingly,
adopted from the National Labor Relations Act a six-month statute of limitations for hybrid
§ 301/fair representation claims. Id. at 172. It is thus clear that Malloy had six months to bring a
suit on his hybrid claims.
What is less clear is when that clock began to run. Had Malloy received a final
determination from the arbitrator, his time to bring suit would have run from that adverse
decision. See DelCostello, 462 U.S. at 172. Here, however, his grievance never made it that far
because the Union concluded that it could not proceed without the tape recording of Dr.
Thomas’s evaluation, which Malloy declined to provide. Like an adverse decision, the Union’s

10

decision to drop Malloy’s grievance effectively ended his bid for administrative relief and
triggered the time to bring suit. The relevant question, then, is when Malloy “knew or should
have known,” Emory v. United Air Lines, Inc., 720 F.3d 915, 930 n.29 (D.C. Cir. 2013), that his
grievance had been withdrawn.
According to the Union, the grievance was withdrawn on January 6, 2015. See Dkt. 2-1
at 3. The complaint, however, alleges that Malloy was not informed of this fact until January 20,
2015, when he emailed Taylor to ask whether the Union had made a decision whether to “pull”
the grievance, and Taylor responded that the grievance “has been dropped.” Compl. ¶¶ 289–90.
Taking the allegations of the complaint as true, and assuming that Malloy’s original complaint
was filed on the day that it is dated, see Malloy v. WMATA, 15-mc-1112 (complaint dated July
19, 2015), Malloy would have met the statute of limitations—if only by a day. The problem he
faces, however, is that his original complaint was not filed because, in lieu of paying the filing
fee, he moved to proceed in forma pauperis, and that motion was denied on the ground that he
earned in excess of $41,000 a year and reported no debt or inordinate expenses. See id. at Dkt. 1.
Although the Court did not deny Malloy’s in forma pauperis motion until August 21, 2015,
moreover, Malloy then waited until September 15, 2015, to refile his complaint with the required
fee. By that time, he was well beyond the six-month statute of limitations.
This does not end the inquiry, however, because the statute of limitations does not pose a
jurisdictional hurdle, and it is thus subject to equitable doctrines, including tolling. See Norman
v. United States, 467 F.3d 773, 775 (D.C. Cir. 2006); see also Zipes v. Trans World Airlines,
Inc., 455 U.S. 385, 395 n.11 (1982); cf. Arbaugh v. Y&H Corp., 546 U.S. 500, 516 (2006)
(holding that a statute is not jurisdictional unless the “Legislature clearly states” so). The lone
equitable consideration that Malloy raises is a contention that the Union never gave him “actual

11

notice of the status of his grievance.” Dkt. 15 at 5. But Malloy’s complaint alleges that Taylor
emailed him on January 20, 2015, and told him, among other things, that his “grievance has been
dropped.” Compl. ¶ 290. The Union has also provided a copy of this email, see Dkt. 2-5, which
the Court may consider because Malloy’s complaint incorporated it by reference, see EEOC v.
St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997). As a result, the Court
cannot credit Malloy’s argument that he did not receive notice of the withdrawal of his grievance
and must conclude that he “either knew or should have known,” Emory, 720 F.3d at 930 n.29,
that the time to file his claim began no later than January 20, 2015.
Although Malloy has not asserted any other basis for seeking to toll the statute of
limitations, see Dkt. 15, the Court deems it appropriate—particularly in light of Malloy’s pro se
status—to consider how his initial efforts to file a timely complaint bear on the statute of
limitations defense. In particular, courts often toll statutes of limitations during the period of
time an application for leave to proceed in forma pauperis is pending. See, e.g., Johnson v.
Interstate Mgmt. Co., 871 F. Supp. 2d 1, 4 (D.D.C. 2012); Kone v. District of Columbia, 808 F.
Supp. 2d 80, 83 (D.D.C. 2011). Some decisions, moreover, go a step further and accord
applicants an additional grace period to ensure that they have received actual notice of the denial
of their applications. As Chief Judge Howell explained in Nkengfack v. Am. Ass’n of Retired
Persons, 818 F. Supp. 2d 178, 182 (D.D.C. 2011), “the weight of authority supports tolling the
statute of limitations not only for the pendency of an [in forma pauperis] application, but also for
a reasonable period thereafter to account for receipt of notice of the court’s decision.” Id. at 183.
Based on that precedent and on notions of “basic fairness,” Chief Judge Howell concluded that
the statute of limitations at issue in that case should be tolled for “an additional five-day

12

presumptive notice period to account for notice of the Court’s ruling on the plaintiff’s [in forma
pauperis] application.” Id. at 184.
Even granting Malloy all of these allowances, his complaint is still untimely. At best, he
filed his in forma pauperis application with just one day left on the statute of limitations. After
the Court denied that application, another twenty-five days passed before Malloy actually filed
his complaint with the required fee. Because Malloy has failed to offer any justification for this
significant delay—which was far longer than necessary to ensure that he received notice of the
Court’s denial of his in forma pauperis application—and because the Court can discern none,
Defendants’ motions to dismiss Malloy’s claims for breach of the collective bargaining
agreement and the duty of fair representation are GRANTED.
B.

Remaining Claims
The remaining claims in Malloy’s complaint fail as well. He alleges claims for “police

misconduct,” wire fraud, mail fraud, extortion and violations of his right to due process. See
Compl. at 75. As an initial matter, the Court notes that it is unclear whether these claims were
included by error. The first four of these claims include no substantive allegations but merely
cross-reference other allegations in the complaint, none of which bears a discernible relationship
to the alleged torts. Id. And the last of these claims is followed by allegations, including a
fragment of a sentence, that have nothing to do with due process and appear to have been
misplaced under that count. Id. at 75–76. In addition, after reciting these claims, the complaint
repeats the first two counts and labels the last five counts as counts “one” to “five.” Id. at 76.
But even assuming that Malloy intends to allege claims for police misconduct, wire and mail
fraud, extortion, and violations of his right to due process, the complaint fails “to state a claim to
relief that is plausible on its face.” Twombly, 550 U.S. at 570. Stripped of “labels and

13

conclusions,” each of these counts lacks any factual allegations that would permit “the [C]ourt to
draw the reasonable inference that the defendant[s] [are] liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678. To the contrary, the Court cannot even discern the legal theory upon
which Malloy seeks to proceed with respect to these claims.
Malloy also alleges claims against WMATA for intentional infliction of emotional
distress, defamation and mental health malpractice. Compl. at 76–77. In response, WMATA
argues that it is immune from suit under Section 80 of the WMATA Compact. See Dkt. 9 at 10.
The Court agrees.
When Maryland, Virginia, and the District of Columbia signed the WMATA Compact,
they “conferred upon WMATA their respective sovereign immunities.” Beebe v. WMATA, 129
F.3d 1283, 1288 (D.C. Cir. 1997). Section 80 of the Compact, in turn, “waives this immunity for
torts ‘committed in the conduct of any proprietary function,’ while retaining immunity for torts
committed by [WMATA’s] agents ‘in the performance of a governmental function.’” Id.
(quoting D.C. Code Ann. § 9-1107.01(80)). “The D.C. Circuit has held that the question [of]
whether [a particular] function in question is governmental or proprietary under Section 80 is one
of federal law, and has developed two alternative tests for identifying governmental functions
under the WMATA Compact.” Turner v. WMATA, 701 F. Supp. 2d 61, 67–68 (D.D.C. 2010)
(internal quotation marks and citations omitted) (first alteration in original). Under this
approach, the Court first considers “whether the activity amounts to a quintessential
governmental function, like law enforcement,” and, if not, the Court must go on to consider
whether the activity is “discretionary,” and thus “shielded by sovereign immunity,” or
“ministerial,” and thus subject to the waiver set forth in Compact. Beebe, 129 F.3d at 1287
(internal quotation marks omitted). Of particular relevance here, the D.C. Circuit has also held

14

that “decisions concerning the hiring, training, and supervising of WMATA employees are
discretionary in nature, and thus immune from judicial review.” Burkhart v. WMATA, 112 F.3d
1207, 1217 (D.C. Cir. 1997); see also Jones v. WMATA, 205 F.3d 428, 432 (D.C. Cir. 2000)
Applying this standard, the Court concludes that WMATA’s actions in suspending and
removing Malloy from his position, and then defending that position in arbitration, are immune
for suit in tort. The Compact grants WMATA the power to “provide for the qualification,
appointment, [and] removal . . . of its . . . employees” and to “[e]stablish, in its discretion, a
personnel system based on merit and fitness.” D.C. Code § 9-1107.01(g), (h). Taking the
allegations of the complaint as true, that is just what WMATA did here. Malloy may disagree
with the decisions that were reached, but the complaint includes no basis to doubt that WMATA
was exercising its discretion to set the qualifications for operating a train and to remove an
employee who purportedly lacked the necessary qualifications. Indeed, more than most
employment decisions, the actions alleged in the complaint bear the hallmarks of governmental
action to the extent they were focused on protecting the safety of the public. WMATA is thus
immune from the tort claims Malloy alleges.
While Malloy does not allege that the Union is liable for defamation or mental health
malpractice, he does assert his intentional infliction of emotional distress against it. Compl. at
76. This claim, however, fails to allege a claim upon which relief may be granted under Rule
12(b)(6). 5 Malloy alleges that the “damages” that he suffered as a result of these alleged torts
stemmed from a conspiracy between WMATA and the Union “to commit treason, the death

5

Even if WMATA were not immune from suit, the Court would similarly dismiss Malloy’s tort
claims against WMATA because they fail under Rule 12(b)(6). As with his claim for intentional
infliction of emotional distress against the Union, his claims for that tort and for mental health
malpractice and for defamation against WMATA are not facially plausible. See Iqbal, 556 U.S.
at 678; Twombly, 550 U.S. at 570.
15

embedded in the email, and encoding the numbers 666 in the date of his termination.” Id. This
claim plainly fails to satisfy the requirement established in Twombly and Iqbal that a plaintiff
plead “a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 570).
Finally, to the extent that Malloy alleges both in his complaint and in his opposition that
Defendants have committed multiple criminal acts for which they should be held liable, see
Compl. at 75; Dkt. 15 at 8, those allegations are not properly before the Court. As the Supreme
Court has explained, “a private citizen lacks a judicially cognizable interest in the prosecution or
nonprosecution of another.” Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973). Malloy thus
lacks standing to press criminal charges here, see id., and this Court lacks Article III jurisdiction
over those claims as a result.
Defendants’ motions are therefore GRANTED and the complaint is DISMISSED.
C.

Other Outstanding Issues
Malloy has also filed a motion “to disqualify the Amalgamated Transit Union Local 689

as opposing counsel.” See Dkt. 13. The entirety of the motion consists of a single sentence
merely asserting that the basis for the motion is “set forth in the accompanying memorandums,”
which presumably refers to Malloy’s opposition to the motions to dismiss, see Dkt. 15. Nothing
in any document Malloy has submitted explains why the Union (or its attorney) should be
disqualified. Cf. Ethical Issues in Representing Multiple Plaintiffs or Defendants: Special Issues
for Union Counsel, American Bar Association 15–17 (Aug. 9, 2005), http://apps.americanbar.
org/labor/lel-aba-annual/papers/2005/039.pdf (explaining that attorneys who represent a union
during a member’s arbitration grievance are not typically disqualified from representing the

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union if the grievant sues for breach of the duty of fair representation, and collecting cases). The
motion to disqualify is, accordingly, DENIED.
IV. CONCLUSION
For the reasons explained above, the Defendants’ motions to dismiss the amended
complaint, Dkts. 8, 9, are GRANTED and the complaint is DISMISSED. Because Defendants’
earlier-filed motions to dismiss addressed the superseded complaint, see Dkts. 2, 6, those
motions are DENIED as moot. Malloy’s motion to disqualify opposing counsel, Dkt. 13, is
DENIED. His motion to deny the motions to dismiss is DENIED. A separate order will issue.

SO ORDERED.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge

Date: May 20, 2016

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