Case 1:16-cv-01482-JEB Document 5 Filed 08/19/16 Page 1 of 11

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA
LOCAL 689, AMALGAMATED
TRANSIT UNION
2701 Whitney Place
Forestville, MD 20747
Plaintiff/Counter-Defendant,
v.
WASHINGTON METROPOLITAN
AREA TRANSIT AUTHORITY
600 Fifth Street, NW
Washington, DC 20001
Defendant/Counter-Plaintiff.

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: Civil Action No. 1:16-cv-01482-JEB
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DEFENDANT WMATAS ANSWER AND COUNTERCLAIM/CROSS-MOTION TO

VACATE ARBITRATION AWARD
Defendant, Washington Metropolitan Area Transit Authority (WMATA), hereby
submits its Answer to Plaintiffs Complaint and Counterclaim/Cross-motion to Vacate the
arbitration award.
Responses to Paragraphs in Complaint
1. Paragraph 1 constitutes a statement of the nature of the case to which no
response is necessary. To the extent any response is deemed necessary, it is denied.
2. With respect to Paragraph 2, WMATA admits only that this Court has original
jurisdiction over WMATA only as to those civil actions for which WMATAs sovereign
immunity has been waived pursuant to the WMATA Compact or by otherwise applicable
law. WMATA further admits that venue is appropriate in this Court. WMATA denies the
remaining allegations of Paragraph 2.
3. With respect to the first sentence of Paragraph 3, WMATA admits only that it is

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an interstate compact agency and instrumentality of the District of Columbia, Maryland,

and Virginia, as approved by Congress, which provides mass transit services in the
Washington, D.C. metropolitan area, and denies any other allegations. WMATA admits
the allegation of the second, third, and fourth sentences of Paragraph 3.
4. With respect to the first sentence of Paragraph 4, WMATA admits only that
Local 689 is the collective bargaining representative for a significant number of WMATAs
unionized employees and denies any other allegations. WMATA denies the allegations
of the second sentence of Paragraph 4 for lack of information and belief. WMATA admits
the allegations of the third sentence of Paragraph 4.
5. With respect to Paragraph 5, WMATA admits only that Ms. Carr is a HR Project
Specialist in the Department of Human Resources at WMATA whose job duties are
generally defined in the job classification for her position. WMATA denies the remaining
allegations of Paragraph 5.
6. With respect to Paragraph 6, WMATA admits only that Ms. Moore-McGee is
the Chief Human Resources Officer at WMATA whose job duties include the supervision
of the entire Department of Human Resources at WMATA, including the position held by
Ms. Carr.
7. With respect to Paragraph 7, WMATA admits only that Local 689 and WMATA
are parties to a collective bargaining agreement and that the terms of the complete
collective bargaining agreement and the WMATA Compact are the best evidence of their
own contents. WMATA denies all other allegations and inferences of Paragraph 7.
8. With respect to Paragraph 6, WMATA admits only that a Board of Arbitration
comprised of the three referenced individuals issued a decision dated April 8, 2016

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related to the grievance of Mr. Haile, and denies all other allegations and inferences.
9. WMATA admits the allegations of the first and second sentences of Paragraph
9. With respect to third sentence of Paragraph 9, WMATA admits only that that the
arbitration decision is the best evidence of its own contents.
10. Denied. By way of further answer, due to the egregious nature of the offenses
committed by Mr. Haile, which led to his termination, WMATA is filing within this document
its Counterclaim/Cross-motion to Vacate Arbitration Award in this case to protect the
riding public and other WMATA employees.
11. Denied. By way of further answer, see WMATAs Counterclaim/Cross-motion
to Vacate Arbitration Award, infra. .
COUNT I
12. WMATA incorporates by reference Answer Nos. 1-11, supra.
13. Denied. See also Answer No. 11, supra.
14. Denied.
COUNT II
15. WMATA incorporates by reference Answer Nos. 1-14, supra.
16. Paragraph 16 constitutes a legal statement to which no response is necessary.
To the extent any response is deemed necessary, it is denied, as the full text of the
referenced provision is the best evidence of its own contents.
17. Paragraph 17 constitutes a legal statement to which no response is necessary.
To the extent any response is deemed necessary, it is denied.
18. Denied.

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COUNT III
19. WMATA incorporates by reference Answer Nos. 1-18, supra.
20. Paragraph 20 constitutes a legal statement to which no response is
necessary. To the extent any response is deemed necessary, it is denied, as the full
text of the referenced provision is the best evidence of its own contents.
21. Denied.
22. Denied.
23. Denied.
COUNT IV
24. WMATA incorporates by reference Answer Nos. 1-23, supra.
25. Paragraph 25 constitutes a legal statement to which no response is deemed
necessary. To the extent any response is deemed necessary, it is denied.
26. Paragraph 26 constitutes a legal statement to which no response is deemed
necessary. To the extent any response is deemed necessary, it is denied.
27. Paragraph 27 constitutes a legal conclusion to which no response is deemed
necessary. To the extent any response is deemed necessary, it is denied.
28 [mistakenly designated as a second Paragraph 20 in Plaintiffs Complaint].
Denied.
29 [mistakenly designated as a second Paragraph 21 in Plaintiffs Complaint].
Denied.
Further answering the Complaint, WMATA denies all other allegations not
specifically admitted or otherwise answered.

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First Affirmative Defense

The arbitration decision cannot be enforced, and should be vacated, because it is
in violation of explicit public policy, contrary to the record evidence, law, and is arbitrary
and capricious as set forth in WMATAs Counterclaim/Cross-motion to Vacate
Arbitration Award. Plaintiffs Complaint therefore fails to state a claim upon which relief
can be granted.
Second Affirmative Defense
WMATA reserves the right to argue that Plaintiffs claims are barred by the statute
of limitations.
Third Affirmative Defense
WMATA reserves the right to argue, in whole or in part, that Plaintiffs claims are
barred by principles of sovereign/governmental/Eleventh Amendment immunity and/or by
80 of the WMATA Compact.
Fourth Affirmative Defense
WMATA reserves the right to argue that this case is barred by estoppel and/or
waiver.
Having fully answered the Complaint, WMATA respectfully requests that Plaintiffs
claims

be

dismissed

with

prejudice;

that

the

relief

sought

in

WMATAs

Counterclaim/Cross-motion to Vacate be granted; and that WMATA be awarded its costs

of defending this action.
COUNTERCLAIM/CROSS-MOTION TO VACATE ARBITRATION AWARD
Defendant/Cross-Plaintiff WMATA, for its Cross-motion against Plaintiff/CrossDefendant Local 689, Amalgamated Transit Union (Local 689), hereby sues Local 689

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for a judgment vacating the April 8, 2016 opinion and award of the Tripartite Board of
Arbitration in the matter of Seyoum Haile, as modified by the reconstituted Board of
Arbitration on June 10, 2016, attached hereto as Attachment A. In support of this
Counterclaim/Cross-motion, WMATA states as follows.
Statement of Facts
1. WMATA is an interstate compact agency and instrumentality of the District of
Columbia, Maryland, and Virginia that operates transit service in the Washington, D.C.
metropolitan area.
2. Local 689 is a labor union which, under a collective bargaining agreement with
WMATA, represents a significant number of WMATAs non-supervisory operational
employees.
3. With respect to this Cross-motion, this Court has subject matter jurisdiction
over this lawsuit and personal jurisdiction over Local 689 pursuant to Section 81 of the
WMATA Compact, reprinted at D.C. Code 9-1107.01 (81).
4. Venue is proper in this Court under Section 81 of the Compact because many
of the alleged actions related to this Cross-motion occurred in the District of Columbia.
5. WMATA employed Seyoum Haile as a General Equipment Mechanic AA. Mr.
Haile held this position at all times relevant to the arbitration up until the date of his
termination. In 2009, WMATA suspended Mr. Haile for ten days for making false
statements in his daily work log and during an interview.
6. On January 12, 2015, there was an electrical arcing incident in the tunnel on
the Metrorail Yellow Line near the LEnfant Plaza Metrorail Station which resulted in
excessive smoke. One Metrorail passenger died and many other passengers sustained

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injuries as a result of the incident.

7. On January 12, 2015, shortly after the incident ended, a circuit board for one
of the fans, designed to remove smoke from the tunnels and for which the Grievant
submitted inaccurate preventive maintenance records in the fall of 2014, burned out.
8. The National Transportation Safety Board (NTSB) immediately took over the
investigation and requested many documents. As part of the investigation, the NTSB
compared WMATA Rail Operations Control Center (ROCC) computer logs with
WMATA Office of Plant Maintenance (PLNT) maintenance records for the tunnel fans
located at a fan shaft in close proximity to the incident site.
9. The NTSB contacted WMATA because some of the maintenance activities
related to the fans were signed off as being performed on November 6, 2014, but could
not be corroborated by the corresponding ROCC computer logs.
10. As a result of the NTSBs investigation and WMATAs own investigation,
WMATA concluded that Mr. Haile had falsified preventive maintenance records for the
fan shaft in issue. The fan shaft is a critical fire/life-safety system. During WMATAs
investigation, WMATA gave Mr. Haile several opportunities to provide accurate and
forthright information and he repeatedly failed to do so.
11. On or about February 17, 2015, WMATA discharged Mr. Haile for falsifying
work records and for making untruthful statements.
12. At all relevant times, Mr. Haile was represented by Local 689 under the
collective bargaining agreement between WMATA and Local 689. Mr. Haile grieved his
discharge under the CBA, and Local 689 pursued the grievance on his behalf through
the various steps of the grievance process, including arbitration.

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The Arbitration Award

13. On September 14, 2015 and October 1, 2015, arbitration hearings were held
in Washington, D.C. before neutral arbitrator Ezio E. Borchini. The parties called
witnesses who were sworn and exhibits were introduced into evidence. Following posthearing briefing, the arbitration panel, with the WMATA partisan arbitrator dissenting,
issued its decision on or about April 8, 2016, converting Mr. Hailes termination to a 180day suspension without pay. The arbitration decision concluded at page 22:
The grievants conduct was serious. However, in the light of all of the
evidence, it was not so serious as to be disruptive of the employment
relationship. The penalty must be rehabilitative, rather than punitive, and
mitigating circumstances must be considered. . . .
While discharge may have been warranted but for systemic issues, in all
likelihood, progressive discipline will be effective. Given the harshness of the
penalty, it is unlikely that the grievant would commit a similar violation, with
knowledge that it would lead to discharge.

14. Subsequent to issuance of the initial opinion and award of the Tripartite
Board of Arbitration, an issue arose as to the calculation of back pay, if any, to be
received by the Grievant. The parties agreed to reconstitute the Board of Arbitration to
resolve the back pay issue and on or about June 10, 2016, the reconstituted Board of
Arbitration issued a stipulated award as to the calculation of back pay.
Grounds for Vacating the Arbitration Award
COUNT I
(Vacation of Arbitration Award As Arbitrary, Capricious, and Contrary to Record
Evidence, Law, and Public Policy)
15. WMATA incorporates by reference Paragraphs 1 through 14, supra.
16. The decision of the arbitrator to overturn the termination of the Grievant in
favor of a 180-day suspension was in violation of explicit public policy, arbitrary,
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capricious, and contrary to record evidence and law.

17. The Award should be vacated because it violates the well-settled and
prevailing public policies of promoting safety in public transportation and minimizing the
risks faced by WMATAs transit riders, employees, and the general public. The Award
implicates these policies because, if left in place, WMATA will be unduly restricted in its
ability to protect its riders, employees, and the general public by disciplining employees
who commit serious safety violations. As a result, employees such as Mr. Haile will
have less incentive to ensure that they strictly follow WMATAs mandatory safety rules.
18. If the arbitration decision is not vacated, WMATAs transit patrons,
employees, and the general public will be subjected to serious risk of physical harm and
injury by the return of an employee to work on critical safety equipment despite
repeated prior incidents of false statements in the course of his work with WMATA.
19. WMATA is required by federal law and the laws of its Signatories to take
appropriate measures to operate its Metrorail system in accordance with applicable
safety statutes. Requiring WMATA to reinstate this employee, who has on repeated
occasions falsely documented and stated that he completed assigned work on critical
safety equipment when in fact he had not, would compromise WMATAs ability to
comply with these applicable safety laws and otherwise protect the safety of its transit
riders, employees, and the general public.
WHEREFORE, Defendant/Counter-Plaintiff WMATA respectfully requests that
this Court:
1. Enter judgment in its favor on this Counterclaim/Cross-motion to Vacate
Arbitration Award;

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2. Enter an order vacating the arbitration award in issue;

3. Order any other relief that the Court finds just and equitable; and
4. Award WMATA its recoverable costs in this case.

Respectfully submitted,

/s/ Gerard J. Stief

Gerard J. Stief #925933
Chief CounselAppeals & Special Lit.
600 Fifth Street, N.W.
Washington, D.C. 20001
202-962-1463; 202-962-2550 (fax)
Attorneys for Defendant WMATA

/s/Robert G. Ames
Robert G. Ames #234393
Venable LLP
575 Seventh Street, N.W.
Washington, D.C. 20004
202-344-4840

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CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing Answer and Counterclaim/Crossmotion to Vacate Arbitration Award was electronically transmitted this 19th day of August,
2016 to:
Douglas Taylor
Brian Connolly
Gromfine, Taylor & Tyler
1420 King Street, Suite 500
Alexandria, VA 22314

/s/ Gerard J. Stief

Gerard J. Stief

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