Maryland et al v. Washington Metropolitan Area Transit Authority et al

Filing 44

MEMORANDUM OPINION. Signed by Judge Theodore D. Chuang on 7/13/2015. (kw2s, Deputy Clerk) (c/m 7/14/15)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND

ABDUL JALIL MARYLAND,
KIM PERRY,
ETHEL ELLIS,
DE-SHAWN MARCUS-JONES,
ERIC MCDONALD,
MAVIS THORNTON,
LA'SHA WN SMITH,
KELLIE BASEMORE,
DENIS BUTTS,
NETTIE TAYLOR,
TONIA WHITE,
and
KEITH TROTMAN,
Plaintiffs,
Civil Action No. TDC-14-3397

v.
WASHINGTON METROPOLITAN AREA
TRANSIT AUTHORITY,
MV TRANSPORTATION, INC.,
LELAND PETERSON,
PAUL COMFORT,
JAMES WAUGH,
DONNA SNOWDEN,
NICOLE BROWN,
CHARLES KHAI,
and
PAVEL LESHO,
Defendants.

MEMORANDUM OPINION
This case is before the Court on Plaintiffs' Motion to Amend the Complaint, ECF No.4;
a Motion to Dismiss filed by Defendants MV Transportation,

Inc., Leland Peterson, Paul

Comfort, James Waugh, Donna Snowden, Nicole Brown, Charles Khai, and Pavel Lesho, ECF

No. 10; Defendant Washington Metropolitan Area Transit Authority's Motion to Dismiss, ECF
No. 15; Plaintiffs' Motion for a Declaratory Judgment, ECF No. 35; and Plaintiffs' Motion for
Certification of a Class, ECF No. 40. Having reviewed the filings, the Court finds no hearing
necessary. See Local Rule 105.6 (D. Md. 2014). For the reasons set forth below, the Motion to
Amend is GRANTED, both Motions to Dismiss are GRANTED, the Motion for a Declaratory
Judgment is DENIED, and the Motion for Class Certification is DENIED.

BACKGROUND
The twelve named Plaintiffs in this case, who are proceeding pro se, are all current or
former employees of MV Transportation,
Washington

Metropolitan

Inc. ("MV Transportation"),

Area Transit Authority ("WMATA").

a contractor for the

On September

11, 2014,

Plaintiffs filed a Complaint in the Circuit Court of Prince George's County, Maryland against
WMAT A, MV Transportation,
Defendants")
employees'

and seven supervisors at MV Transportation

("the Individual

in which they allege that MV Transportation regularly monitored and recorded
conversations

without their consent, in violation of federal and state wiretapping

laws. Plaintiffs assert that MV Transportation then used "false allegations" about the content of
those monitored conversations to suspend or terminate employees.

Compl. ~ 1, ECF NO.2.

Although it appears that Plaintiffs allege that the conversations at issue took place over the
telephone, they do not indicate whether the devices allegedly tapped were personal phones or
phones provided by MV Transporta:tion for work purposes.

Plaintiffs complained about this

practice to management, but, they allege, both WMATA and MV Transportation asserted that
they are exempt from wiretapping laws, that such laws "d[id] not apply in their business model,"
and that they would therefore "continue this practice." Id ~ 4.

2

Plaintiffs also allege that they have been subjected to discrimination

by being denied

wages and fringe benefits, but do not identify any specific basis, such as race or gender, for the
discrimination, and they do not identify any protected classes to which they individually belong.
Plaintiffs note that WMATA and MV Transportation, having received federal funding, therefore
agreed "to comply with all applicable equal employment opportunity requirements of [the] U.S.
Department of Labor." Id. ~~ 12-13.
Based on these allegations, Plaintiffs assert that Defendants violated the Wiretap Act, 18
U.S.c.

S 2510

et seq. (2012); the Stored Wire and Electronic Communications and Transactional

S

Records Access Act, 18 U.S.C.

2701 et seq. (2012); and the Maryland Wiretapping

Electronic Surveillance Act, Md. Code, Cts. & Jud. Proc.,
allege violations of 42 U.S.C.

S

S

10-401 et seq. (2009). Plaintiffs also

1983 and the Fourth and Fifth Amendments to the Constitution

relating to the alleged wiretapping.

Furthermore, they assert claims of discrimination under Title

VI of the Civil Rights Act of 1964 ("Title VI"), 42 U.S.C.

S

2000d (2012); the Equal Pay Act,

29 U.S.C. 206(d) (2012); the Americans with Disabilities Act ("ADA"), 42 U.S.C.
seq. (2012); the Age Discrimination in Employment Act ("ADEA"), 29 U.S.c.
(2012); 42 U.S.C.

S

S

S

S 5301

12101 et

621 et seq.

6101 et seq. (2012), which prohibits discrimination on the basis of age in

programs receiving federal financial assistance; the Federal Transit Administration
U.S.C.

and

et seq. (2012); and 41 C.F.R.

S 60-1.1

Act, 49

et seq. (2015), which bars discrimination by

government contractors and subcontractors.
On October 6, 2014, Plaintiffs filed a Motion to Amend the Complaint to include a claim
of retaliation. In that Motion, Plaintiffs state that on or about June 11,2014, Plaintiff Abdul Jalil
Maryland ("Maryland") reported MV Transportation and WMAT A to the Office of the Inspector
General for misappropriation of federal funds. Plaintiffs allege that on September 11, 2014, in

3

response to the filing of the Complaint in this case, MV Transportation terminated Maryland
from his position.

They also allege that on September 29, 2014, Plaintiff Da-Shawn Marcus-

Jones ("Marcus-Jones")

was terminated in retaliation for joining this lawsuit. Plaintiffs contend

that these acts of retaliation violated Title VI and 29 C.F.R. 933.13 (2015), which enforces the
prohibition on discrimination on the basis of handicap in programs or activities conducted by the
U.S. Department of Labor.
On October 29, 2014, Defendants removed this action to this Court.

On November 5,

2014, MV Transportation and the Individual Defendants filed a Motion to Dismiss for Failure to
State a Claim. On November 14,2014, WMATA filed its Motion to Dismiss for Failure to State
a Claim.

On November 25, 2014, Plaintiffs filed a Motion for Declaratory Judgment.

On

December 15, 2014, Plaintiffs filed a Motion for Certification of Class.
DISCUSSION

I.

Plaintiffs' Motion to Amend the Complaint
Federal Rule of Civil Procedure 15 allows plaintiffs to amend their pleadings "once as a

matter of course" if the pleading is amended within 21 days after serving it. Plaintiffs filed their
Motion to Amend on October 6, 2014.

According to the Maryland Judiciary Case Search,

Defendants were served with the original Complaint on October 6, 2014.1

Maryland Judiciary

Case Search, Civil Action No. CAL1424334, available at http://casesearch.courts.state.md.us.
Because Plaintiffs amended their Complaint within the time frame allowed under Rule 15, the
Motion to Amend is granted.

The Court takes judicial notice of these court proceedings pursuant to Federal Rule of Evidence
201(b)(2).
1

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II.

Defendants'

Motions to Dismiss

As a threshold matter, WMATA contends that it "is not subject to, or otherwise enjoys
sovereign immunity" to claims alleging violations of 42 U.S.C. ~ 1983 ("Section 1983"), the
ADA, and the ADEA because it is an arm of the state of Maryland. WMAT A Mot. Dismiss at 3.
WMATA further contends that, under the terms of the Washington Metropolitan Area Transit
Authority Compact (the "Compact"), WMATA and MV Transportation are exempt from suit
under the federal wiretapping laws, and WMATA is exempt from suit under the Maryland
wiretapping law .. As discussed below, the Court finds that WMATA may not be sued under
Section 1983, the ADA, the ADEA, or the Maryland wiretapping

statute, but that neither

WMAT A nor MV Transportation is exempt from suit under the federal wiretapping laws.
Beyond these threshold questions, Defendants assert that Plaintiffs have failed to plead
factual content sufficient to maintain any of their causes of action.
A. Claims of Immunity

and Exemption from Suit

1. 42 U.S.C. ~ 1983
WMATA is an "interstate compact agency.and
and the District of Columbia."

instrumentality of Maryland, Virginia,

Lizzi v. Alexander, 255 F.3d 128, 132 (4th Cir. 2001), overruled

in part on other grounds by Nevada Dep't of Human Resources v. Hibbs, 538 U.S. 721 (2003).
As an instrumentality of the State of Maryland, WMATA is not a "person" within the meaning
of Section 1983 and therefore cannot be sued under that statute. Will v. Michigan Dept. of State
Police, 491 U.S. 58, 71 (1989) (holding that a state is not a "person" under Section 1983 and
therefore is not subject to suit under it); James v. Wash. Metro. Area Transit Auth., 649 F. Supp.
2d 424, 430 (D. Md. 2009) ("WMATA is not subject to suit under Section 1983.").

Because

Section 1983 is the means by which private citizens assert claims for constitutional violations by

5

government officials, Plaintiffs' claims for violations of the Fourth and Fifth Amendments to the
Constitution must be construed as claims under Section 1983. Zombro v. Baltimore City Police
Dept., 868 F.2d 1364, 1366 (4th Cir. 1989) (stating that Section 1983 is the "statutory basis to
receive a remedy for the deprivation of a right secured by the Constitution and laws of the United
States") (internal quotation marks and citation omitted). Thus, WMATA is similarly not subject
to Plaintiffs' Fourth and Fifth Amendment claims. Plaintiffs' Section 1983, Fourth Amendment,
and Fifth Amendment claims against WMATA are therefore dismissed with prejudice.

See

u.s.

Airline Pilots Ass'n v. Awappa, LLC, 615 F. 3d 312, 320 (4th Cir. 2010) (stating that when any
alteration to a cause of action would be "futile" and have "no impact on the outcome of the
motion to dismiss," the district court need not grant leave to amend).
2. Eleventh Amendment Immunity
The Eleventh Amendment provides: "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." U.S.
Const. amend. XI.

The Eleventh Amendment

immunizes states, state agencies, and state

instrumentalities from suit by private parties in federal court. See Pennhurst State Sch. & Hosp.
v. Halderman, 465 U.S. 89, 98 (1984); Bland v. Roberts, 730 F.3d 368, 389-91 (4th Cir. 2013)
(holding that federal court claims for damages against a state official in his official capacity are
barred by the Eleventh Amendment).

In enacting the ADA, Congress explicitly sought to

abrogate the states' Eleventh Amendment immunity in order to permit suits against states for
disability discrimination.
(2001).

Bd of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356, 364

The Supreme Court, however, has held that because the abrogation was not a valid

exercise of congressional power, the Eleventh Amendment protects states from suits under the

6

ADA. Id. at 374. Similarly, the Supreme Court has held that Congress's abrogation of Eleventh
Amendment immunity in the ADEA was invalid, such that the states may not be sued for age
discrimination under the ADEA. Kimel v. Fla. Bd. o/Regents, 528 U.S. 62, 91 (2000).
Thus, states are generally immune from suit under the ADA and ADEA. Because it is an
instrumentality

of the State of Maryland, WMATA may partake of Maryland's

Amendment immunity.

Eleventh

See Lizzi, 255 F.3d at 132. However, the Compact carves out certain

exceptions to sovereign immunity.

Specifically, the Compact waives WMATA's immunity to

suit for any torts "committed in the conduct of any proprietary function."

Md. Code, Transp. ~

10-204(80). The Compact, however, does not waive sovereign immunity for "torts occurring in
the performance of a governmental function."

Id. Because "hiring, training, and supervision

practices are governmental functions," Lizzi, 255 F.3d at 133 (holding that the Compact did not
waive sovereign immunity from suits by WMATA employees under the Family and Medical
Leave Act), the waiver of immunity for torts involving proprietary functions does not apply to
Plaintiffs' claims of ADA and ADEA violations arising from WMATA's employment practices.
Thus, WMATA is immune to suit for those alleged violations. See Garrett, 531 U.S. at 374;
Kimel, 528 U.S. at 91; Jones v. Wash. Metro. Area Transit Auth., 205 F.3d 428, 432 (D.C. Cir.
2000) (holding that Eleventh Amendment immunity protects WMAT A from suits under the
ADEA); Hopps v. Wash. Metro. Area Transit Auth., 480 F. Supp. 2d 243, 255 (D.D.C. 2007)
(holding that Eleventh Amendment immunity bars suits under the ADA); see also Minor v.
Wash. Metro. Area Transit Auth., Civ. Action No. RWT-12-1061, 2013 WL 3776365 at *2 (D.
Md. July 16,2013) (holding that WMATA had Eleventh Amendment immunity from suit under
the ADA); McGee v. Wash. Metro. Area Transit Auth., Civ. Action No. RWT-06-1965,

2008

WL 5501305 at *3 n. 8 (D. Md. Feb. 29, 2008) (finding that WMATA has Eleventh Amendment

7

immunity from suit under the ADEA). Thus, the ADA and ADEA claims against WMATA are
dismissed with prejudice.

3. Exemptions Arising from the Compact
Based on the terms of the Compact, WMAT A also cannot be sued under the Maryland
Wiretapping and Electronic Surveillance Act. Because WMATA is an instrumentality of three
different jurisdictions-Maryland,
"may not enact legislation

Virginia, and Washington D.C.-one

which would impose

party to the Compact

burdens upon the compact

absent the

concurrence of the other signatories." c.T. Hellmuth & Assoc., Inc. v. Wash. Metro. Area Transit
Auth., 414 F. Supp. 408, 409 (D. Md. 1976) (holding that WMATA was not subject to
Maryland's

freedom-of-information

law because "one party may not enact legislation which

would impose burdens on the compact absent the concurrence of the other signatories"); accord
Lucero-Nelson v. Wash. Metro. Area Transit Auth., 1 F. Supp. 2d 1, 7 (D.D.C. 1998) ("[O]ne
signatory [of the WMATA Compact] 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."). WMATA therefore cannot be subjected to the laws of one of its member states
without the express consent of the other states.

Here, there is no evidence that Virginia and

Washington D.C. have expressly consented to subjecting WMATA to the provisions of the
Maryland Wiretapping and Electronic Surveillance Act. See generally Pennhurst, 465 U.S. at 99
(explaining that, to be valid, a state's waiver of sovereign immunity must be "unequivocally
expressed").

WMA TA therefore cannot be sued under that statute.

WMATA's claim that it and MV Transportation are exempt from suit under the federal
wiretapping statute is less convincing. WMAT A cites as the source of this exemption Section 77
of the Compact, which states, in relevant part:

8

Except as otherwise provided in this title, any transit service
rendered by transit facilities owned or controlled by the Authority
and the Authority or any corporation, firm or association
performing such transit service pursuant to an operating contract
with the Authority, shall, in connection with the performance of
such service, be exempt from all laws, rules, regulations and orders
of the signatories and of the United States otherwise applicable to
such transit service and persons, except that laws, rules, regulations
and orders relating to inspection of equipment and facilities, safety
and testing shall remain in force and effect[.]

Md. Code, Transp. ~ 10-204(77).

WMATA reads this provision as a general exemption clause,

applying to any and all laws that might otherwise include WMATA in their sweep.
provision,

by its own terms, exempts "any transit service rendered"

by WMATA

But the
or its

contractors, and exempts WMAT A and its contractors only in connection with "the performance
of such service."

The additional reference to laws relating to inspection and safety testing

suggest that Section 77 is not a general exemption from all laws, but a specific exemption from
transit-related regulation, a conclusion buttressed by the original, explanatory title of the section:
"Exemption

from Regulation."

H.R. Rep. No. 89-1914, at 18, 51 (1966).

The purpose of

Section 77 was "exemption from the separate regulation of the several signatories,"

so that

WMATA could be "entirely self-regulating with respect to fares, service and other activities
which affect net revenues."

Malone v. Wash. Metro. Area Transit Auth., 622 F. Supp. 1422,

1430 (E.D. Va. 1985) (quoting Testimony of Jerome Alper, Counsel to the Joint Transportation
Commission, Hearings of House of Representatives, Committee of the Judiciary, Subcommittee
Report No.3, 89th Cong., 2nd Sess., H.J. Res. 1163, July 20, 27, August 3, 1966, p. 235). Upon
consideration ofthe language of the Compact and this legislative history, WMATA's suggestion
that Section 77 exempts it and its subcontractors from all laws, rules, and regulations of any kind

9

appears to be too broad an interpretation.

The Court therefore rejects the contention that Section

77 exempts WMAT A and MV Transportation from federal wiretapping statutes.
Since WMATA cannot be sued under Maryland's
WMATA for violation
dismissed with prejudice.

of the Maryland Wiretapping

wiretap laws, the claim against

and Electronic

Surveillance

Act is

Because, however, WMATA and MV Transportation are not exempt

from suit under federal wiretapping laws, the Court evaluates below the sufficiency of the
Complaint's allegations as to those claims.

B. Sufficiency of the Complaint
1. Legal Standard
To overcome a Rule 12(b)( 6) motion, a complaint must allege enough facts to state a
plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

A claim is plausible

when "the plaintiff pleads factual content that allows the Court to draw the reasonable inference
that the defendant is liable for the misconduct alleged." Id. This plausibility standard "asks for
more than a sheer possibility that a defendant has acted unlawfully."

Id. Legal conclusions or

conclusory statements do not suffice and are not entitled to the assumption of truth.
evaluating the sufficiency of the plaintiffs

Id.

In

claims, the Court must examine the complaint as a

whole, consider the factual allegations in the complaint as true, and construe the factual
allegations in the light most favorable to the plaintiff.

Albright v. Oliver, 510 U.S. 266, 268

(1994); Lambeth v. Bd. of Comm 'rs of Davidson Cnty., 407 F.3d 266, 268 (4th Cir. 2005).
Complaints filed by pro se plaintiffs are "to be liberally construed" and "must be held to less
stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89,
94 (2007). The complaint must nevertheless contain more than "legal conclusions, elements of a

10

cause of action, and bare assertions devoid of further factual enhancement."
Ltd. v. Consumeraffairs.com,

Nemet Chevrolet,

Inc., 591 F.3d 250,255 (4th Cir. 2009).

Although Plaintiffs cite numerous statutory provisions, they make very few factual
allegations to support their wiretapping and discrimination claims.

Because of the paucity of

Plaintiffs' allegations, all of their claims must be dismissed. Nemet Chevrolet, 591 F.3d at 255.
However, as detailed below, Plaintiffs will be granted leave to amend those claims that, with
further factual support, might be legally viable. Those claims that, even with additional factual
support, could not give rise to a viable lawsuit will be dismissed with prejudice.

U.S. Airline

Pilots Ass'n, 615 F. 3d at 320.
2. Wiretapping Claims
a. Statutory Claims
Plaintiffs allege federal causes of action for wiretapping under sections 2511 and 2520 of
the Wiretap Act, 18 U.S.C.
Communications

S 2510

et seq., and section 2701 of the Stored Wire and Electronic

and Transactional Records Access Act, 18 U.S.C.

S

2701 et seq. They allege

state law causes of action for wiretapping under four sections of the Maryland Wiretapping and
Electronic Surveillance Act: Md. Code, Cts. & Jud. Proc.,

SS

10-401, 10-402, 10-405, and 10-

410. Although, as discussed above, WMAT A may not be sued under the Maryland wiretapping
law, MV Transportation and the Individual Defendants have no such protection.
Turning to the individual provisions, Plaintiffs'
Defendant under 18 U.S.c.

S 2701

action cannot proceed against any

because that is a criminal statute only. Private citizens do not

have the right to institute a criminal prosecution or to enforce criminal statutes. See Linda R.S. v.
Richard D., 410 U.S. 614, 619 (1973); Lopez v. Robinson, 914 F.2d 486, 494 (4th Cir. 1990). 18
U.S.C.

S

2511, although primarily a criminal statute, does allow the federal government to

11

initiate a civil cause of action, but it does not provide for a private right of action. See 18 U .S.c.
~2511(5).

Plaintiffs therefore also cannot proceed under that provision against any Defendant.

Nor can Plaintiffs'
under sections

action proceed against MV Transportation and the Individual Defendants

10-401, 10-402, and 10-405 of the Maryland Wiretapping

Surveillance Act.

and Electronic

Section 10-401 defines terms used in the article; section 10-402 authorizes

only criminal prosecution or a civil enforcement action by the federal or state government, and
section 10-405 governs the admissibility of wiretapped communications

in court proceedings.

Because none of these federal or state sections create a private right of action, they are dismissed
with prejudice as to all Defendants.
18 U.S.C. ~ 2520 and section 10-410 of the Maryland Wiretapping

and Electronic

Surveillance Act, however, can be the basis for a private civil cause of action. 18 U.S.C. ~ 2520
provides that
[A]ny person whose wire, oral, or electronic communications is intercepted,
disclosed, or intentionally used in violation of this chapter may in a civil action
recover from the person or entity, other than the United States, which engaged in
that violation such relief as may be appropriate.
Section 10-410 provides that:
Any person whose wire, oral, or electronic communication is intercepted,
disclosed, or used in violation of this subtitle shall have a civil cause of action
against any person who intercepts, discloses, or uses, or procures any other person
to intercept, disclose, or use the communications, and be entitled to recover from
any person ... damages.
Md. Code, Cts. & Jud. Proc. ~ 10-410.

While, in theory, Plaintiffs could sue all Defendants

under 18 U.S.C. ~ 2520 and could sue MV Transportation and the Individual Defendants under
Section 10-410 of the Maryland law, Plaintiffs' current allegations relating to wiretapping are too
non-specific

for these claims to proceed.

Plaintiffs assert generally that Defendants

were

"recording and monitoring conversations" of Plaintiffs "without the consent of all parties to the
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conversations"

and have suspended or terminated employees "via false allegations concerning

the content of the recorded conversations."

Compi. ~ 1. But they have failed to allege specific

facts that, if true, would establish a violation of either statute.

For example, they have not

identified which of the Plaintiffs were monitored; what devices were allegedly monitored
(company-owned or personal); how, when, and by whom the monitoring was done; and whether
one party consented to the monitoring.

Thus, Plaintiffs' allegations are too vague to provide

Defendants with proper notice of the claims. See Beaudet! v. City of Hampton, 775 F.2d 1274,
1278 (4th Cir. 1985) (explaining that "[d]istrict judges are not mind readers" and therefore
cannot be expected to "construct full-blown claims" based on insufficient factual allegations).
Because the current Complaint does not contain sufficient factual averments, Plaintiffs' causes of
action under 18 U.S.C. 92520 and Section 10-410 of the Maryland Wiretapping and Electronic
Surveillance Act are dismissed. However, because it may be possible for Plaintiffs to allege the
necessary facts to make out these causes of action, Plaintiffs are granted leave to amend.
Plaintiffs are reminded that because, as explained above, WMAT A may. not be sued under
Maryland's

wiretap law, any revised cause of action under that law must be against MV

Transportation and the Individual Defendants only.
b. 42 U.S.c. ~ 1983 and Constitutional Violations
Plaintiffs also allege a violation of 42 U .s.c. 9 1983, apparently in relation to alleged
wiretapping of their conversations.

As noted above, WMATA is not a "person" within the

meaning of Section 1983, and therefore cannot be sued under that provision.

Any Section 1983

action must therefore be against MV Transportation or the Individual Defendants.

In general, to

state a claim under Section 1983, plaintiffs must allege facts that would establish (1) conduct by
a "person"; (2) who acted "under color of state law"; (3) causing a deprivation of a federally

13

protected right.

West v. Atkins, 487 U.S. 42, 48 (1988).

include rights under the Fourth Amendment

The federally protected right could

to the Constitution,

which bars unreasonable

searches and seizures by the government, or the Fifth Amendment, which prohibits governmental
deprivation

of life, liberty, or property without due process of law.

adequately to plead factual allegations establishing these elements.

Here, Plaintiffs

fail

In particular, they do not

allege facts showing that MV Transportation acted under color of state law, that is, that it acted
in an official state or local government capacity.

They also fail to allege any facts supporting

any violation of federal rights perpetrated by any of the Individual Defendants, or any facts
establishing that the Individual Defendants acted in any official state or local government
capacity. Plaintiffs' Section 1983 claim is therefore dismissed with leave to amend.
As discussed

above, plaintiffs

Amendments to the Constitution.

may not sue directly under the Fourth and Fifth

Any alleged violation of those constitutional provisions must

be brought under Section 1983. Zombro, 868 F.2d at 1366.

Thus, the claims brought directly

under the Constitution are dismissed with prejudice.
3. Discrimination Claims
Plaintiffs

generally

assert

violations

of varIOUS anti-discrimination

statutes

and

regulations, including Title VI, the ADA, the ADEA, 42 U.S.C. ~ 6101 et seq., the Equal Pay
Act, the Federal Transit Administration Act, and 41 C.F.R. ~ 60-1.1 et seq. As set forth below,
there is no private right of action to bring a discrimination lawsuit under the Federal Transit
Administration Act. That claim is therefore dismissed with prejudice. Furthermore, because the
ADA and the ADEA do 'not provide for causes of action against employee supervisors in their
individual capacities, Plaintiffs'

ADA and ADEA causes of action against the Individual

Defendants are dismiss~d with prejudice.

Because the remaining discrimination allegations are

14

so lacking in detail as to provide insufficient notice to Defendants of the basis for Plaintiffs'
claims, they must also be dismissed, but Plaintiffs will be given leave to amend those claims.

a. The Federal Transit Administration Act
The Federal Transit Administration Act ("FTAA"), 49 U.S.C. ~ 5301 et seq., formerly
the Urban Mass Transportation Act ("UMTA"), provides federal funding for transportation and
infrastructure projects and, as part of that funding, holds recipients of funds to accessibility
standards for "individuals

with disabilities, seniors, and individuals who depend on public

transportation."

~ 5301(6).

49 U.S.c.

There is no express private right of action under the

FTAA, and numerous courts have held that none can be implied.

See Razorback Cab of Ft.

Smith, Inc. v. Flowers, 122 F.3d 657, 659 (8th Cir. 1997) (declining to read a private right of
action into the UMTA); City of Evanston v. Reg'l Transp. Auth., 825 F.2d 1121, 1123-24 (7th
Cir. 1987) ("The UMT Act does not create a private right of action, and none can be implied.");
McCarthy v. Hornbeck, 590 F. Supp. 936, 938 (D. Md. 1984) (noting its earlier determination
"that no private right of action can be implied" under the UMTA). Those courts that have found
a private right of action have done so only when the plaintiffs were users of federally funded
transportation projects who alleged that the recipient of the federal grant had failed adequately to
adhere to the accessibility requirements of the statute. See Cohen v. Massachusetts Bay Transp.
Auth., 647 F.2d 209, 212 (1st Cir. 1981) (holding that the UMTA "giv(es] legally enforceable
rights to the public" in the context of a suit by riders of Boston's mass transit system); Baker v.
Bell, 630 F.2d 1046, 1050 (5th Cir. 1980) (holding that mobility-disabled
transportation

users of public

had standing to contest the award of grant funds under the UMT A to local

transportation providers to purchase allegedly non-compliant buses). No court has recognized a
private right of action under the FTAA for employees who allege, as Plaintiffs do here, that their

15

employer has engaged in job-related

discrimination.

Accordingly,

this cause of action is

dismissed with prejudice.
b. Title VI
Plaintiffs allege discrimination under Title VI of the Civil Rights Act, 42 U.S.C. 92000d,
which prohibits discrimination on the basis of "race, color, or national origin ... under any
program or activity receiving Federal financial assistance." Plaintiffs can pursue an employment
discrimination

claim under Title VI only if they can show that "a primary objective of the

Federal financial assistance [the employer receives] is to provide employment."
2000d-3.

42 U.S.c.

See Venkatraman v. REI Systems, Inc., 417 F.3d 418, 421 (4th Cir. 2005) (listing as

one of the elements

of a Title VI claim of employment

discrimination

that "providing

employment is a primary objective of the federal aid" that the employer receives); Trageser v.
Libbie Rehab. Ctr., Inc., 590 F.2d 87, 88-89 (4th Cir. 1978). Thus to state a viable cause of
action under Title VI, Plaintiffs must make specific factual allegations establishing that they
were discriminated against by MV Transportation and WMATA; that the discrimination was
based on race, color, or national origin; that MV Transportation and WMATA receive federal
funds; and that MV Transportation
employment.

and WMATA use those funds primarily

to provide

Because Plaintiffs fail to do this in their current Complaint, their claims under

Title VI are dismissed with leave to amend.
c. The Equal Pay Act
Plaintiffs also allege a cause of action under the Equal Pay Act, 29 U.S.C. 206(d), and its
implementing regulations, specifically 29 C.F.R. 99 1620.10, 1620.11, 1620.23, and 1620.27.
The Equal Pay Act makes it unlawful for employers to discriminate in pay and fringe benefits
based on gender. See 29 U.S.C. 206(d) (making it illegal to discriminate based on gender in the

16

payment of wages); 29 C.F.R.

9

1620.10 (defining wages to include fringe benefits).

Thus, to

articulate a claim under the Equal Pay Act, Plaintiffs need to plead facts establishing that they
are members of the class protected by the statute, that is, that they are women. They also need to
make concrete allegations about specific instances of gender discrimination
benefits by WMAT A, MV Transportation, or the Individual Defendants.

in pay or fringe

Because Plaintiffs fail

to provide an adequate factual basis for their Equal Pay Act claims, those claims are dismissed
with leave to amend.
d. ADA
Plaintiffs allege causes of action under section 12112 of the ADA and under 29 C.F.R.
1630 et seq., the implementing regulations ofthe AnA?

9

The ADA claims against the Individual

Defendants are dismissed with prejudice because an ADA claim of employment discrimination
may be brought only against the employer, not individual supervisors.

Baird ex reI. Baird v.

Rose, 192 F.3d 462, 472 (4th Cir. 1999) ("(T]he ADA does not permit an action against
individual defendants.").

In light of the Court's ruling that WMATA has Eleventh Amendment

immunity against an ADA claim, only MV Transportation remains as a defendant on this claim.
Section

12112 of the ADA

prohibits

employers

covered

discriminating against employees on the basis of disability. 42 U.S.C.

9

by the

statute

from

12112(a). This statutory

provision could therefore be the basis of a cause of action, but the Complaint is devoid of

Plaintiffs also allege a cause of action under Section 12132 of the ADA, which is part of Title
II of the ADA, 42 U.S.C. 99 12131-12165. Section 12132 makes it illegal for certain public
entities to discriminate against disabled individuals in terms of providing access to programs or
activities. It does not govern discrimination by employers against disabled employees.
Reyazuddin v. Montgomery County, Md, _
F.3d _,2015
WL 3651710, at *1, *13 (4th Cir.
June 15, 2015) ("(P]ublic employees cannot use Title II to bring employment discrimination
claims against their employers.").
Because Plaintiffs here allege discrimination in the
employment context, section 12132 is inapplicable. Plaintiffs' cause of action under this
provision is therefore dismissed with prejudice.

2

17

sufficient allegations to support a claim. Specifically, Plaintiffs need to plead facts establishing
that they are members of the class protected by the ADA, that is, that they are disabled.
also need to allege facts describing

They

specific actions through which MV Transportation

discriminated against them on the basis of their disabilities. In addition, Plaintiffs must establish
that they have exhausted their administrative remedies on their ADA claim. To do this, Plaintiffs
must show that they filed their ADA claims with the United States Equal Employment
Opportunity Commission ("EEOC"), that the EEOC's investigation has concluded, and that they
have received a right-to-sue letter. Sydnor v. Fairfax Cnty., Va., 681 F.3d 591, 593 (4th Cir.
2012).

If Plaintiffs have not exhausted their administrative remedies, this Court would lack

jurisdiction to hear their ADA claim. Jones v. Calvert Group, Ltd, 551 F.3d 297, 300 (4th Cir.
2009).

Because Plaintiffs fail to provide an adequate factual basis for their ADA claim, and

because they do not establish that they have exhausted administrative remedies, Plaintiffs' cause
of action under section 12112 of the ADA and the ADA's implementing regulations, 29 C.F.R. ~
1630 et seq., is dismissed with leave to amend.
e. ADEA
Plaintiffs allege a cause of action under the ADEA, 29 U .S.C. ~ 621 et seq.3 The ADEA
claims against the Individual Defendants are dismissed with prejudice because an ADEA claim

Plaintiffs also allege a cause of action under the Age Discrimination Act of 1975, 42 U.S.C. ~
6101, et seq., which prohibits age discrimination by federally assisted programs. Under 42
U.S.C. ~ 6102, it is illegal for entities receiving federal funding to discriminate against
individuals on the basis of age in terms of providing access to programs or benefits. These
statutory provisions therefore do not govern discrimination by employers against employees on
the basis of age. Brown v. Wash. Metro Area Transit Auth., Civ. Action No. DKC-05-0052, 2005
WL 1941630 at *5 n.2 (D. Md. Aug. 122005) (noting that "employment practices are not within
the scope of' 42 U.S.c. ~ 6101 et seq.); Montalvo-Padilla v. Univ. of Puerto Rico, 498 F. Supp.
2d 464, 467 (D.P.R. 2007) (finding that "Congress did not intend to create a cause of action for
discriminatory employment practices" through 42 U.S.C. ~ 6101 et seq.), Because Plaintiffs'
3

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may be brought only against the employer, not individual supervisors.

Birkbeck v. Marvel

Lighting Corp., 30 F.3d 507,511 (4th Cir. 1994) (holding that "the ADEA limits civil liability to
the employer" and therefore individual supervisors are "not ... proper defendant [s]"). In light of
the Court's ruling that WMATA has Eleventh Amendment immunity against an ADEA claim,
only MV Transportation remains as a defendant on this claim.
To state a claim under the ADEA, Plaintiffs would need to plead facts establishing that
they are over 40 years of age, and they would have to allege facts describing specific actions
through which MV Transportation

discriminated against them on the basis of their age.

In

addition, Plaintiffs must establish that they have exhausted their administrative remedies on their
ADEA claim. To do this, Plaintiffs must show that they filed their ADEA claim with the EEOC,
that the EEOC's investigation has concluded, and that they have received a right-to-sue letter.
See 29 U.S.C. 9626(d).

If Plaintiffs have not exhausted their administrative remedies, this Court

may not hear their ADEA claim. Jones, 551 FJd at 300-01. Because Plaintiffs fail to provide
an adequate factual basis for their ADEA claim and because they do not establish that they have
exhausted their administrative remedies, Plaintiffs' claim under the ADEA is dismissed with
leave to amend.
f. 41 C.F.R. ~ 60-1.1
41 C.F.R. 9 60-1.1 et seq. implements Executive Order 11246, which, as amended, see
Executive Orders 11375, 12086, 13279, and 13672, prohibits employment discrimination
federal contractors

and subcontractors

on the basis of "race, color, religion,

orientation, gender identity, or national origin[.l"

by

sex, sexual

41 C.F.R. 9 60-1.1. As with the other claims,

Plaintiffs have not alleged that they are members of any of these protected classes and have not
allegations are employment-related, 42 U.S.C. 96101 et seq. is inapplicable.
action under that statute is thus dismissed with prejudice.
19

Plaintiffs' cause of

provided any specific factual allegations actions describing when and how WMAT A, MV
Transportation,

or the Individual Defendants

members of a protected class.

discriminated

against them because they are

Because the Complaint does not sufficiently allege a plausible

claim for relief, this claim is dismissed with leave to amend.

4. Retaliation
Plaintiffs allege in the Amended Complaint that Maryland and Marcus-Jones were fired
in retaliation for pursuing the grievances that are the basis of this lawsuit. A claim of retaliation
for filing a claim of employment discrimination is ordinarily brought under Title VII of the Civil
Rights Act, 42 U.S.C. ~ 2000e et seq., and generally must be first filed with the EEOC.

42

U.S.C. ~ 2000e-5(f)(1) (permitting civil suit only after the person seeking to sue has filed a
charge with the EEOC and received a right-to-sue letter). However, as the legal authority for
their retaliation claim, Plaintiffs first cite 29 C.F.R. ~ 33.13, an implementing regulation of the
Rehabilitation Act, 29 U.S.C. ~ 701 et seq., which prohibits "discrimination

on the basis of

handicap in programs or activities conducted by Executive agencies or the United States Postal
Service." 29 C.F.R. ~ 33.1.

This particular regulation bars retaliation for raising a complaint of

disability discrimination in "programs or activities conducted by the Department of Labor."

29

C.F.R. ~~ 33.2, 33.13. Thus, although Plaintiffs appear to state a plausible claim of improper
retaliation, they have not alleged facts that support the inference that the retaliation is related to a
claim of disability discrimination in a Labor Department program.

Because Plaintiffs fail to do

this in their current Complaint, their retaliation claim under 29 C.F.R. ~ 33.13 is dismissed with
leave to amend .
. Plaintiffs also assert that the alleged retaliation violated Title VI. As noted above, to state
a cause of action for employment discrimination under Title VI, Plaintiffs must establish that

20

WMATA and MV Transportation receive federal funds the primary objective of which is to
provide employment.

Because Plaintiffs fail to do this in their current Complaint,

their

retaliation claim under Title VI is dismissed with leave to amend.
In amending their claim for retaliation, Plaintiffs are not limited to asserting a claim
under Title VI or 29 C.F.R. ~ 33.13.

III. Plaintiffs' Motion for Declaratory Judgment
Plaintiffs ask this Court to issue a declaratory judgment "to conclusively rule on and
affirm the rights, duties and fiduciary responsibility" of the Defendants.

Mot. Decl. J. at 1.

Here, as outlined above, Plaintiffs have failed to allege facts sufficient to state any plausible
claim for relief. They therefore necessarily fail to establish that they are entitled to a declaratory
judgment in their favor.

The Motion for Declaratory Judgment is thus denied.

IV. Plaintiffs' Motion for Certification of a Class
Plaintiffs also ask this Court to certify them as a class. Because the Court has dismissed
all of the pleaded causes of action, the named Plaintiffs necessarily cannot show that there are
questions of law or fact common to the proposed class, that the claims of the named Plaintiffs are
similar to those typical of the claims of the class members, or that the named Plaintiffs will serve
as adequate representatives of all members of the class. See Fed. R. Civ. P. 23(a). The Motion
for Certification of a Class is therefore denied without prejudice as premature.

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CONCLUSION
For the reasons
GRANTED,
Declaratory

set forth above, Plaintiffs'

Defendants'
Judgment

Motion to Amend

Motions to Dismiss are GRANTED,

is DENIED, and Plaintiffs'

the Complaint

is

Plaintiffs'

Motion for a

Motion for Certification

of a Class is

DENIED.
Plaintiffs are granted leave to amend their Complaint within 21 days of the date of this
Order. Any amended complaint may not re-allege any claims dismissed with prejudice and may
allege only those claims expressly noted above as dismissed with leave to amend.

Date: July 13, 2015
THEODORE D. CH
United States Distri

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