Lizzi v. Washington Metropolitan Area Transit Authority

BARBERA, Judge. Appellant, Christopher T. Lizzi, sued appellees, the Washington Metropolitan Area Transit Authority (“WMATA”) and seven individuals employed by WMATA, for unlawful termination of employment. On motion of appellees, the Circuit Court for Prince George’s County dismissed all three counts of appellant’s complaint on the ground of res judicata, and the third count on the additional ground of state sovereign immunity. Appellant appeals and raises the following issues for our review: I. Whether the federal court’s dismissal for lack of subject matter jurisdiction of appellant’s claims against WMA- ⁴ TA in the federal court lawsuit is res judicata as to appellant’s claims against WMATA in this case.

II

Whether the federal court’s dismissal for lack of subject matter jurisdiction of appellant’s claims against the individual defendants in their official capacities in the federal court lawsuit is res judicata as to appellant’s claims against the individual defendants in their individual capacities in this case.

III

Whether sovereign immunity bars appellant’s claims against any of the appellees.

IV

Whether appellant’s state constitutional law claim is barred by the statute of limitations? We conclude that appellant’s complaint was barred by sovereign immunity, and therefore affirm the judgment of the circuit court. FACTS AND PROCEEDINGS Because this appeal is from the dismissal of appellant’s complaint, the facts are as alleged by him. Appellant was employed by WMATA as a Metro wheelchair life mechanic at all times relevant to this action.

During the summer of 1997, he missed several weeks of work due to a number of medical conditions that arose within the same two-month period. WMATA directed appellant to submit to a medical examination on August 14, 1997. He refused, explaining that he was taking delusive medication for his periodontal problems, and therefore unable to drive himself to the examination. WMA-TA warned him that if he failed to submit to the examination, he would be terminated.

On August 18, 1997, appellant appeared for a medical examination conducted by a physician regularly employed by WMATA. When the physician requested that appellant return the next day for an independent medical examination, appellant refused, again citing the delusive effects of his medication. Upon appellant’s failure to submit to the second examination, WMATA notified him that he “was under investigation which [could] lead to his dismissal.” ⁵ According to his complaint, appellant thereafter applied for leave under the federal Family and Medical Leave Act (“FMLA”) for periods from June 20 to July 5, 1997, and August 9 to August 23, 1997. On the day he filed his FMLA leave application, appellant was notified that he was terminated for having violated the requirement that he submit to the independent medical examination.

Within the next several weeks, appellant filed suit in both the United States District Court for the District of Maryland and the Circuit Court for Prince George’s County, alleging in both actions that WMATA and seven individual defendants, all of whom were employees of WMATA, had violated his rights under FMLA. Appellant subsequently amended his state court complaint to add a claim for breach of contract. WMA-TA and the individual defendants answered the amended complaint asserting, among eighteen affirmative defenses, the defenses of sovereign immunity, res judicata, and collateral estoppel. In March 2001, the circuit court ordered a stay of the state court action pending the decision of the United States Court of Appeals for the Fourth Circuit in the federal action.

The federal district court had previously ruled that Eleventh Amendment immunity barred appellant’s claims against WMATA, but that FMLA permits appellant to bring an action against the employees of WMATA in their individual capacities. The question on appeal was whether appellant’s claims as to all defendants in federal court were barred on the ground of Eleventh Amendment immunity. 1 In an opinion decided June 20, 2001, the Fourth Circuit affirmed in part and reversed in part the district court’s ruling. The Fourth Circuit held that the entirety of appellant’s complaint must be dismissed for lack of subject matter ⁶ jurisdiction because the individual defendants as well as WMATA were immune from suit in federal court. Lizzi v. Alexander, et al., 255 F.3d 128 (4th Cir.2001), cert. denied sub nom.

Lizzi v. Washington Metro. Area Transit Auth., 534 U.S. 1081 , 122 S.Ct. 812 , 151 L.Ed.2d 697 (2002). Following issuance of the Fourth Circuit’s opinion, WMATA filed a motion to (1) lift the stay in the state court action and (2) dismiss the entire action. The parties appeared for a motions hearing on January 4, 2002.

On the morning of the hearing, counsel for appellant filed a second amended complaint, adding a third count claiming violations by the individual defendants of appellant’s state constitutional rights. 2 At the close of arguments, the court dismissed Counts I and II of appellant’s complaint on the ground of res judicata. The court did not rule on the then-newly-added Count III of the second amended complaint, affording WMATA the opportunity to respond to it. WMATA filed a motion to strike the second amended complaint or, in the alternative, to dismiss Count III on the grounds of sovereign immunity, res judicata, and statute of limitations. The motion came on for a hearing on March 29, 2002.

After hearing arguments, the court dismissed Count III on two grounds, sovereign immunity and res judicata. This appeal followed. DISCUSSION We are asked to decide whether the circuit court correctly dismissed all three counts of appellant’s complaint on the ground of res judicata and, insofar as Count III is concerned, the additional ground of sovereign immunity. We shall affirm the circuit court’s dismissal of appellant’s complaint but, at ⁷ least insofar as Counts I and II are concerned, for reasons other than those relied upon by that court.

The standards governing the grounds for filing a motion to dismiss, the grant of such a motion, and the appellate courts’ review of the ruling are well settled. Under Maryland Rule 2—322(b)(2) (1996), a defendant may seek a dismissal on the ground that the complaint fails “to state a claim upon which relief can be granted.” When moving to dismiss, a defendant is asserting that, even if the allegations of the complaint are true, the plaintiff is not entitled to relief as a matter of law. Thus, in considering a motion to dismiss for failure to state a claim, the circuit court examines only the sufficiency of the pleading. “The grant of a motion to dismiss is proper if the complaint does not disclose, on its face, a legally sufficient cause of action.” This Court, therefore, shall assume the truth of all well-pleaded relevant facts as alleged in appellant’s complaint and all reasonable inferences drawn therefrom. Heritage Harbour, L.L.C. v. John J. Reynolds, Inc., 148 Md.App. 698, 704-05 , 795 A.2d 806 (2002).

Moreover, in reviewing a court’s grant of a motion to dismiss, we must determine whether the decision was legally correct. Porterfield v. Mascari II, Inc., 142 Md.App. 134, 139 , 788 A.2d 242 (2002), aff'd, 374 Md. 402 , 823 A.2d 590 (2003). Thus, so long as the complaint, on its face, does not state a claim upon which relief can be granted, we may affirm the dismissal of the complaint, even if on a ground not relied upon by the circuit court. Society of Am.

Foresters v. Renewable Natural Res. Found., 114 Md.App. 224 , 233 n. 3, 689 A.2d 662 (1997). As we have said, the circuit court dismissed all three counts of the complaint on the ground of res judicata, and Count III on the additional ground of sovereign immunity. Appellant vigorously attacks the circuit court’s reliance upon res judica-ta in dismissing the state action.

Appellant argues preliminarily that, because the dismissal of the federal suit was for lack of subject matter jurisdiction, it was without prejudice and, therefore, is not a judgment “on the merits”; consequent ⁸ ly, it had no preclusive effect on his state suit. Appellant further argues that the federal court’s decision, with respect to both WMATA and the individual defendants, was grounded on Eleventh Amendment immunity and, since Eleventh Amendment immunity only bars suit in federal court, the Fourth Circuit’s decision did not decide the different question of whether appellant is precluded from suing these same defendants in state court. WMATA and the individual appellees respond with equal vigor. They argue, inter alia, 3 that the federal court’s judgment is a judgment on the merits, and that it was not based merely on Eleventh Amendment immunity but on the broader ground of sovereign immunity.

Therefore, appellees argue, the circuit court was legally correct in dismissing the state action on the grounds of res judicata. It is not necessary that we decide whether res judicata bars appellant’s suit on the ground that the federal court ruled the appellees immune. This is because we hold that WMATA and the individual appellees are shielded from suit in state court by the doctrine of sovereign immunity, and that WMATA has not waived that immunity for claims such as those brought by appellant. 4 ⁹ WMATA was created by interstate compact with the consent of the United States Congress in 1966. The signatories to the WMATA Compact (“the Compact”) are Maryland, Virginia, and the District of Columbia.

See Md.Code (1977, 2001 Rep. Vol.), § 10-203 of the Transportation Article. 5 Because the Compact was created by Congressional consent, issues relating to its construction are a matter of federal law. Morris v. Washington Metro. Area Transit Auth., 781 F.2d 218 , 220 n. 2 (D.C.Cir.1986) (citing Cuyler v. Adams, 449 U.S. 433, 438 , 101 S.Ct. 703 , 66 L.Ed.2d 641 (1981)).

WMATA enjoys sovereign immunity as if it were the State or one of its agencies, because such immunity was conferred upon it by Maryland upon its signing the Compact. Maxwell v. Washington Metro. Area Transit Auth., 98 Md. App. 502, 513 , 633 A.2d 924 (1993). In Maxwell we said, “WMATA’s sovereign immunity exists because the signatories have successfully conferred their respective sovereign immunities upon it.

Congress has power to legislate for the District of Columbia and to create an instrumentality that is immune from suit. Maryland and Virginia have immunity under the eleventh amendment [in federal courts] and each can confer that immunity upon instrumentalities of the state. It is clear that each of the three signatories attempted to confer its sovereign immunity upon WMATA. We think they succeeded.” Id. at 514 , 633 A.2d 924 (citation omitted); see also Beebe v. Washington Metro.

Area Transit Auth., 129 F.3d 1283, 1287 (D.C.Cir.1997) (“In signing the WMATA Compact, Maryland, Virginia, and the District of Columbia conferred upon WMA-TA their respective sovereign immunities.”). “[A] waiver of sovereign immunity is to be strictly construed, in terms of its scope, in favor of the sovereign.” Department of the Army v. Blue Fox, Inc., 525 U.S. 255, 261 , 119 S.Ct. 687 , 142 L.Ed.2d 718 (1999); accord Martin v. ¹⁰ Washington Metro. Area Transit Auth., 273 F.Supp.2d 114, 119 (D.D.C.2003). “Such a waiver must also be ‘unequivocally expressed’ in the statutory text.” Blue Fox, 525 U.S. at 261 , 119 S.Ct. 687 (citation omitted). The only express waiver of the signatories’ sovereign immunity is a partial waiver and is found in Section 80 of the Compact. That section provides: The Authority shall be liable for its contracts and for its torts and those of its directors, officers, employees and agents committed in the conduct of any proprietary function, in accordance with the law of the applicable signatory (including rules on conflict of laws), but shall not be liable for any torts occurring in the performance of a governmental 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. Nothing contained in this title shall be construed as a waiver by the District of Columbia, Maryland, Virginia and the counties and cities within the zone of any immunity from suit. § 10-204(80) (emphasis supplied). It is evident from this provision of the Compact that, with the exception of claims involving contracts and torts committed in the conduct of any proprietary function, WMATA has not waived its immunity from suit. Appellant asks us, in effect, to ignore the language in Section 80 that limits its waiver of sovereign immunity and to interpret the “sue and be sued” clause in Section 12(a) of the Compact as a waiver of WMATA’s sovereign immunity.

Section 12(a) provides: “In addition to the powers and duties elsewhere described in this title, and except as limited in this title, the Authority may ... (a) Sue and be sued.” § 10-204(12)(a) (emphasis supplied). We decline to read Section 12(a) as appellant suggests. It is well settled that “ ‘[w]here the statute to be construed is a part of a statutory scheme, the legislative intention is not determined from that statute alone, rather it is ¹¹ to be discerned by considering it in light of the statutory scheme.’ ” Breitenbach v. N.B. Handy Co., 366 Md. 467, 480 , 784 A.2d 569 (2001) (citation omitted).

We, therefore, may not read Section 12(a) in a vacuum; rather, we must consider it together with Section 80 of the Compact. That section, as we have noted, plainly delineates the limited classes of cases for which WMATA has waived immunity, while at the same time making express that, for all other cases, the signatories retain their immunity from suit. It has been held that the “sue and be sued” language of Section 12(a) “extend[s] only as far as the more specific (and partial) waiver of sovereign immunity contained in section 80 of the Compact.” Watters v. Washington Metro. Area Transit Auth., 295 F.3d 36, 40 (D.C.Cir.2002), cert. denied, 538 U.S. 922 , 123 S.Ct. 1574 , 155 L.Ed.2d 313 (2003); accord Lizzi, 255 F.3d at 133-34 .

We concur with the federal courts’ construction of the “sue and be sued” wording of Section 10-204(12)(a). Appellant’s suit is in three counts: violation of FMLA (Count I); breach of contract (Count II); and violation of Articles 19, 24 and 46 of the Maryland Declaration of Rights (Count III). It is clear that Counts I and III do not allege a suit in contract or tort involving a proprietary function. 6 Therefore, WMATA is immune from suit because neither ¹² count comes within the limited waiver of immunity expressed by Section 80. Moreover, although appellant’s Count II is couched in terms of “breach of contract,” which, by invocation of those words would seemingly bring that count within WMATA’s waiver of immunity in Section 80 for suits involving its contracts, we conclude that, fairly read, the count does not allege a contract breach.

Instead, like Count I, it alleges a violation of FMLA. Count II reads: Defendant WMATA and plaintiff entered into a contract under which WMATA was obligated to comply with the provisions of the FMLA and/or certain policies and procedures adopted by WMATA and promulgated by WMATA to plaintiff (which policies and procedures contain provisions similar to the provisions of the FMLA and include, but are not limited to, WMATA Policy/Instruction 7.23/0 and WMA-TA FMLA Processing Guidelines). Defendant WMATA terminated plaintiff in violation of that contract, causing plaintiff damages. The Compact contains no references that we could find to a contract between the agency and its employees to adhere to the dictates of FMLA, and appellant does not suggest otherwise.

The only provision of the Compact that would appear to cover appellant’s claim is Section 66, which is entitled “Labor standards,” and calls for labor disputes to be resolved by resort to binding arbitration. See § 10-204(66)(c). 7 Moreover, the policies and procedures cited in Count II, even as characterized by appellant, do not reference a contract between the parties but, rather, simply set forth “provisions ¹³ similar to the provisions of FMLA.” We shall not countenance appellant’s attempt to come within the scope of WMATA’s limited waiver of immunity for contract claims simply by denominating a FMLA violation as one for breach of contract. We conclude, therefore, that Count II, like Counts I and III, is barred by sovereign immunity. Appellant seeks to escape the foreclosing effect of WMA-TA’s sovereign immunity, at least insofar as the state constitutional claims raised in Count III are concerned, by resort to the Court of Appeals’ decision last year in Robinson v. Bunch, 367 Md. 432 , 788 A.2d 636 (2002).

That case affords him no relief. In Robinson , the plaintiffs were employees (and one former employee) of the Division of Parole and Probation within the Maryland Department of Public Safety and Correctional Services. The plaintiffs filed suit against the Secretary of the Department, claiming that the Department’s failure to compensate them for overtime work violated the federal Fair Labor Standards Act (“FLSA”). The circuit court granted the Secretary’s motion to