Morris v. Washington Metropolitan Area Transit Authority

Decision Date08 March 1983
Docket NumberNo. 81-1209,81-1209
Parties31 Fair Empl.Prac.Cas. 169, 31 Empl. Prac. Dec. P 33,469, 226 U.S.App.D.C. 300, 12 Fed. R. Evid. Serv. 1947 Alfred MORRIS, Appellant, v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 80-01307).

Peg Shaw, Washington, D.C., for appellant.

Donald A. Clower, Great Falls, Va., for appellee.

Before MacKINNON and WILKEY, Circuit Judges, and HAROLD H. GREENE, * Judge, United States District Court for the District of Columbia.

Opinion for the Court filed by Circuit Judge MacKINNON.

MacKINNON, Circuit Judge:

The district court entered judgment on a verdict in favor of defendant-appellee on plaintiff-appellant's complaint that he was discharged from employment in violation of the First Amendment. Appellant contends that the trial judge erred in several respects in ruling that certain of plaintiff's proffered proofs were inadmissible. Because we find merit in appellant's contentions that the district court erred in excluding (1) evidence of the employer's retaliatory actions against appellant prior to the discharge and (2) evidence of a pattern of retaliation against other employees, we reverse and remand the case for a new trial. Because we also have some concern that the state of the pleadings in the district court has permitted the parties to proceed without adequately establishing either the jurisdictional or the substantive basis of this action, we further instruct the trial court to grant leave to amend the pleadings in accordance with the following opinion.

I. BACKGROUND

Appellee Washington Metropolitan Area Transit Authority (the Authority), is an agency operated pursuant to a 1967 interstate compact between the District of Columbia and the states of Virginia and Maryland. 1 The Authority is responsible for the operation of the subway and bus systems in the Washington, D.C. metropolitan area. Appellant Morris was an officer employed by the Authority's Transit Police Force (the Force) from November 1974 until his discharge in October 1976.

The discharge led Morris to file the present action in District Court on May 23, 1980. 2 The complaint set forth three counts. Count 1, styled "Race Discrimination," alleged that "throughout Plaintiff's tenure on the WMATA police force black officers were treated differently with respect to matters of promotion and discipline," that Morris was one of the black officers who suffered incidents of disproportionate discipline because of his race, and that the Authority ultimately relied upon these incidents "as a pretext to fire him." Complaint paragraphs 5, 6. Count 2, styled "Retaliation," alleged that as a result of several complaints he made regarding the racial discrimination allegedly practiced on the Force, Morris "was singled out and fired ... in retaliation for the exercise of his rights." In these counts--the first premised on racial discrimination, the second on complaints about such discrimination--Morris relied upon Title VII of the Civil Rights Act, 42 U.S.C. Sec. 2000e et seq. (1976). 3

Count 3, with which we are primarily concerned on this appeal, was styled "First Amendment." This count alleged that "because plaintiff exercised his right to free speech, in criticizing the practice of race discrimination and disparate treatment, Defendant fired the plaintiff in violation of the rights guaranteed to him under the First Amendment...." Complaint p 11.

Plaintiff sought a variety of remedies for these alleged injuries. These included reinstatement with back pay, promotion to the pay grade he would have attained in the normal course of advancement in the Force, $500,000 in compensatory and punitive damages, and a declaration that his statutory and constitutional rights had been violated.

By order of November 3, 1980, the trial court granted Morris' demand for a jury trial as to the First Amendment claim but denied it as to the Title VII counts. 4 The jury trial commenced on November 13, 1980. On November 17, the jury returned a general verdict and answered interrogatories in favor of the defendant Authority. Morris' motion for a new trial was denied, and he appeals.

II. DISCUSSION
A. Preliminary Jurisdictional and Substantive Questions

Although appellant has limited his appeal to challenging three evidentiary rulings by the trial court, we find it necessary before considering these issues to raise sua sponte a question going to the substantive theory, and perhaps to the jurisdictional basis, of appellant's case. Such matters casting doubt upon the existence of federal subject matter jurisdiction are the proper subject of consideration on the court's own motion, as neither the consent or omission of the parties nor the acquiescence of the court can confer jurisdiction where none exists. Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 398, 99 S.Ct. 1171, 1175, 59 L.Ed.2d 401 (1979); Liberty Mutual Insurance Co. v. Wetzel, 424 U.S. 737, 740, 96 S.Ct. 1202, 1205, 47 L.Ed.2d 435 (1976); Louisville & N. Ry. v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 43, 53 L.Ed. 126 (1908). While our concern extends beyond the issue of jurisdiction to embrace the remedial theory under which Morris seeks relief, we deem it desirable and helpful, in order to assist both parties on remand in the instant case, to set forth the following observations on the nature of appellant's claim. 5

The action appears to have proceeded thus far on the assumption that the First Amendment provides a direct remedy for the conduct complained of here. 6 We have serious doubts as to the correctness of that assumption.

Were the Authority an agency of the federal government, it is clear that Morris' exclusive remedy for the retaliatory conduct alleged would be the retaliation provision of Title VII, 42 U.S.C. Sec. 2000e-3(a) (1976). Brown v. General Services Administration, 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976). As we recently noted, Brown held Title VII to be "the exclusive source of judicial remedies for discrimination arising out of federal employment." Borrell v. United States International Communications Agency, 682 F.2d 981, 989 (D.C.Cir.1982). Absent a showing that Title VII provides inadequate protection for his or her rights, 7 see id., a federal employee urging unlawful discrimination is confined to actions under that statute. Hence, a direct constitutional action by an employee against an agency of the United States or its officials would be foreclosed on the facts of the present case.

Title VII, however, does not similarly preempt the pursuit by state employees of alternative remedies against the agencies or officials that employ them. Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975). Assuming that the sovereign immunity guaranteed by the Eleventh Amendment does not otherwise foreclose an action of such character, a nonfederal public employee generally has resort to all other statutory and constitutional remedies available to redress deprivations of constitutional rights. Therefore, before we can proceed to the merits of appellant's arguments relating to the proof of his constitutionally-based claim, it must be determined whether appellant, in relying upon the First Amendment, has stated an available ground for relief. That question, as the foregoing suggests, reduces to whether Morris was a federal or a nonfederal employee at the time he was dismissed by the Authority.

The Authority, as noted earlier, is the product of an interstate compact entered into by Virginia, Maryland, and the District of Columbia, and approved by the Congress as required by Art. I, Sec. 3 of the Constitution. Pub.L. No. 89-774, 80 Stat. 1324 (1967). The fact that the requisite congressional approval of the Authority's creation and operation was secured does not, however, compel the conclusion that the Authority is an agency of the federal government. Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 399 n. 13, 99 S.Ct. 1171, 1176 n. 13, 59 L.Ed.2d 401 (1979). While we leave the question open for further development by the parties on remand, it would appear at first blush that the Authority is an instrumentality of "each of the signatory parties" to the interstate compact, Pub.L. No. 89-774, Sec. 4, and thus a creature of the states and the District of Columbia, which acts "under color of state law," 42 U.S.C. Sec. 1983 (Supp. IV 1980). 8

Assuming that the Authority is properly considered to be a nonfederal employer, a further problem arises as to its precise status under state law. For if the Authority were to be held an instrumentality, rather than a "political subdivision," of the signatory states, its successful invocation of the Eleventh Amendment's immunization of the states from actions for damages in the federal courts would render this court without jurisdiction to hear the case, Edelman v. Jordan, 415 U.S. 651, 677-78, 94 S.Ct. 1347, 1362-63, 39 L.Ed.2d 662 (1974), and the judgment of the district court a nullity.

Because Lake Country Estates and the terms of Public Law 89-774, Secs. 12(a), 16, 17, 18, and 80 strongly indicate that the Authority is either not cloaked with the immunity enjoyed by Virginia and Maryland, or has waived such immunity, see Hodgers v. Tomberlin, 510 F.Supp. 1280, 1283 (N.D.Ga.1980), it would conserve judicial resources to review the merits of this case on the present appeal. However, the issues have not been argued and we do not wish to foreclose further development of the jurisdictional issues by a ruling that would constitute the law of the case. We therefore leave this matter as well for the district court to resolve on the basis of the record before it and any further submissions by the parties. See Van Ooteghem v. Gray,...

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