BERYL A. HOWELL United States District Judge.
The plaintiff, Nancy Shinabargar, proceeding pro se, brings this lawsuit against the Board of Trustees of the University of the District of Columbia ("UDC"), where the plaintiff formerly attended law school, and ten UDC employees, including the Dean and Associate Dean of the Law School, five professors, the Director of Public Safety, who also serves as the Campus Police Chief ("Director of Public Safety"), and the Assistant to the Vice President for Student Affairs, to challenge her suspension from the school. First Am. Compl. ("FAC") ¶¶ 9-19, ECF No. 12.
At the outset, the Court notes that the record on this motion to dismiss is extensive. The plaintiff's First Amended Complaint references numerous documents, 57 pages of which are attached as exhibits to her pleading. See generally
The plaintiff matriculated at the University of District of Columbia's David A. Clarke School of Law ("UDC Law School") on August 15, 2011, and completed only one semester, before her suspension on February 9, 2012. FAC ¶¶ 69, 101; Pl.'s Opp'n at 5. During her brief tenure at the law school, she made repeated complaints of purported acts of plagiarism, starting as early as only several days after classes began.
By the time of her suspension, the plaintiff, who suffers from spinal disorder and lymphangioma in her foot, also made numerous
On February 8, 2011, during the plaintiff's second semester at UDC Law School, the plaintiff received an email notice from the Assistant to the Vice President for Student Affairs about "an incident report," accusing her of violating the UDC Code of Student Conduct, and directing her to "appear for a ... hearing ... on Wednesday, February 15, 2012." Pl.'s Opp'n, Ex. 21 ("Notice of Disciplinary Hearing, dated Feb. 8, 2012") at 114-15, ECF No. 54-1. The Notice accused the plaintiff of the following inappropriate conduct: (1) "using lewd, threatening, and racially insensitive remarks towards another UDC Law School Student," on February 4, 2012; (2) making "false remarks/statements (rumors) about another UDC Law School student to [sic] where [she] made claims and speculated that the student was addicted to drugs and looked `strung out,'" and "spreading rumors ... that this same student... is the victim of spousal abuse," on February 7, 2012; and (3) being "verbally abusive and accused another UDC Law School student of stealing [her] Civ Pro notes," on February 8, 2012. Id. at 114. The Notice advised the plaintiff of her "right to bring to this hearing any information, evidence, witnesses, or an advisor." Id. at 115.
The next day, on February 9, 2012, the plaintiff alleges she met with the Associate Dean of Students to discuss, among other things, an FBI report the plaintiff made regarding a potential security threat near the White House. Pl.'s Letter to the Secretary of Education, dated Sept. 4, 2013 at 71. The Associate Dean, however, understood the plaintiff's statements during the conversation to represent a threat upon the life of the President of the United States, prompting the Associate Dean to email the Dean of the Law School to report the threat. Id. at 75. Later the same day, at around 1p.m., the Associate Dean appeared with "five UDC PD in tow, with guns and handcuffs," FAC ¶ 62, and they led the plaintiff to a conference room "at gunpoint," id. ¶ 63. The plaintiff alleges that two United States Secret Service Agents then arrived to interrogate the plaintiff for two hours regarding her "politics
After the interrogation, the plaintiff alleges five UDC campus policemen approached her as she was walking towards the library. FAC ¶ 68. One of the police officers pushed her "against the wall until Plaintiff fell to the ground," id. at which point, the Assistant to the Vice President for Student Affairs "thrust" another letter notifying the plaintiff that she had been placed on "interim suspension," id. ¶ 69, due to misconduct in the office of the Associate Dean earlier in the same day. The letter accused the plaintiff of "inappropriate behavior" in violation of, inter alia, a section of the UDC Code of Student Conduct section regarding "Terroristic Threats." Pl.'s Opp'n, Ex. 25 ("Notice of Interim Suspension, dated Feb. 9, 2012") at 133, ECF No. 54-1. A disciplinary hearing was scheduled for February 14, 2012, to determine whether the plaintiff should remain suspended. Id. The letter, again, advised the plaintiff that she had "the right to bring to this hearing any information, evidence, witnesses, or an advisor." Id. at 134.
On February 14, 2012, the plaintiff attended the scheduled disciplinary hearing, where she "denied all of the terms and contents ascribing wrongdoing to her in the University's official notices." FAC ¶¶ 72, 80, 85. During the hearing, the plaintiff alleges that "(1) no evidence or a list of witnesses" were provided; "(2) no fact-finding process based on any factually-based allegation or witness statement occurred ...; (3) Plaintiff was not allowed to respond with her own facts and witnesses; and (4) there was no summary of any violation Plaintiff had committed." Id. ¶ 72. The plaintiff further alleges that she was not allowed (1) to describe any of the "disability slurs or disability stunts" made against the plaintiff by her fellow classmates, id. ¶ 80, such as a student who "used to make the Sign of the Cross whenever Plaintiff came into the classroom," id. ¶ 79; (2) to bring "her Handicapped Book Cart into the hearing" in order to "demonstrate how it might have irrationally bothered some Law Students," id. ¶ 81; or (3) to "discuss any plagiarism," Pl.'s Letter to the Secretary of Education, dated Sept. 3, 2013 at 92. According to the plaintiff, the Assistant to the Vice President for Student Affairs at UDC denied her the opportunity to raise these other issues on grounds that "[t]his is about [the plaintiff]" rather than the behavior of other students and faculty members. Id.
On February 15, 2015, the plaintiff received a letter informing her that, following the disciplinary hearing from the previous day, her "interim suspension has been modified to a suspension." Pl.'s Opp'n, Ex. 26 ("Notice of Suspension, dated Feb. 15, 2012") at 140, ECF No. 54-1. UDC conditioned the plaintiff's readmission on her obtaining "a psychological assessment with an external agent (i.e. Psychologist, Psychiatrist, or Licensed Clinical Social Worker)," and clearance from the external agent. Id. at 139. Finally, UDC apprised the plaintiff of her "right to appeal the result of this hearing," within five business days, based on "(1) Discovery of New Information, (2) Procedural Error, and (3) Sanction not within permissible scope of discipline." Id. The plaintiff appealed her suspension the next day to the Vice President for Student Affairs, claiming that (1) an administrative law judge did not preside over her hearing; (2) the
On February 27, 2012, the plaintiff attended an appeal hearing at UDC, regarding her challenge to the February 15, 2012 decision to suspend her. Pl.'s Letter to the Secretary of Education, dated Sept. 4, 2013 at 72. During the hearing, another first-year student at the law school testified that he heard the plaintiff "say the words `Obama' and `assassination.'" Id. Additionally, the Associate Dean's email to the Dean of the Law School, which detailed the plaintiff's threat upon the President's life, was presented as further evidence of the plaintiff's "inappropriate behavior" leading to her suspension. Id. at 69.
On March 1, 2012, the plaintiff attended a third disciplinary hearing concerning the first notice, dated February 8, 2012, regarding her offensive behavior toward other students at the law school, in violation of the UDC Code of Student Conduct. Pl.'s Opp'n, Ex. 26 (Denial of Pl.'s Appeal, dated Mar. 15, 2015) at 147, ECF No. 54-1. The plaintiff was found guilty of the violations listed in the Notice and remained suspended. The plaintiff appealed that decision to the Vice President for Student Affairs on March 6, 2012, raising both procedural and factual objections. Pl.'s Opp'n, Ex. 26 (Pl.'s Second Appeal, dated Mar. 6, 2012) at 149, ECF No. 54-1. The Vice President denied the appeal because the plaintiff "fail[ed] to demonstrate failure by the University to conform to the Code of Student Conduct in a manner reasonably likely to have affected the outcome of [her] hearing," and because the factual objections raised by the plaintiff in her appeal were not "new information ... that was unavailable to [her] at the time of the hearing," and, in any event, she had failed to demonstrate that "the new information is likely to affect the outcome of the hearing." Denial of Pl.'s Appeal, dated Mar. 15, 2015 at 147-48.
Even after the plaintiff was suspended, she continued to report plagiarism at the law school, see e.g., Pl.'s Opp'n, Ex. 29 (Pl.'s Email to UDC Law School Dean, dated Mar. 22, 2012) at 169, ECF No. 54-1; id., Ex. 29 (Pl.'s Email to UDC VP, dated Feb. 27, 2012) at 170, ECF No. 54-1, and to protest UDC Law School's purported refusal to accommodate her disabilities, see e.g., id., Ex. 1 (Pl.'s Letter to UDC ADA Coordinator, dated Mar. 22, 2012); id., Ex. 2 (Pl.'s Emails to Dep't of Ed., dated Mar. 22, 2012) at 16, ECF No. 54-1; id., Ex. 2 (Pl.'s Emails to Dep't of Ed., dated Apr. 3, 2012) at 17, ECF No. 54-1.
The plaintiff also continued to challenge her suspension. On September 3, 2013, the plaintiff allegedly sent to the Secretary of Education a 27-page single-spaced letter alleging that her suspension was a cover-up orchestrated by the Associate Dean to
In her First Amended Complaint, the plaintiff asserts a total of eleven claims, alleging retaliation in violation of the Rehabilitation Act, U.S.C. 29 U.S.C. § 701, et seq., the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq., Title VII of the Civil Rights Act ("Title VII"), 42 U.S.C. § 2000e, et seq., and the First Amendment, FAC (Counts 1 and 2), violation of the Due Process Clause of the Fifth Amendment, id. (Count 3); breach of contract and the implied covenant of good faith and fair dealing, id. (Counts 4, 5, 7, 8); fraudulent misrepresentations, id. (Counts 6 and 9); exclusion from the law school due to her disability in violation of the Rehabilitation Act and the ADA, id. (Count 10); and defamation, id. (Count 11).
The defendants' second motion to dismiss is now ripe for resolution. See generally Defs.' Mot. Dismiss, ECF No. 52.
Federal Rule of Civil Procedure 8(a)(2) requires that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief," to encourage brevity and, at the same time, "give the defendant fair notice of what the ... claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (ellipses in original; internal quotations and citations omitted); Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 319, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007). The Supreme Court has cautioned that although "Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, [] it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Ashcroft v. Iqbal, 556 U.S. 662, 678-79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the "complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Wood v. Moss, ___ U.S. ___, 134 S.Ct. 2056, 2067, 188 L.Ed.2d 1039 (2014) (quoting Iqbal, 556 U.S. at 678, 129 S.Ct. 1937). A claim is facially plausible when the plaintiff pleads factual content that is more than "`merely consistent with' a defendant's liability," but "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 556-57, 127 S.Ct. 1955); see also Rudder v. Williams, 666 F.3d 790, 794 (D.C.Cir. 2012). Although "detailed factual allegations" are not required to withstand a Rule 12(b)(6) motion, a complaint must offer "more than labels and conclusions" or "formulaic recitation of the elements of a cause of action" to provide "grounds" of "entitle[ment] to relief," Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (alteration in original), and "nudge[] [the] claims across the line from conceivable to plausible," id. at 570, 127 S.Ct. 1955. Thus, "a complaint [does
Where, as here, the plaintiff is proceeding pro se, the court must "`liberally construe[]'" the complaint, applying "`less stringent standards than formal pleadings drafted by lawyers.'" Abdelfattah v. U.S. Dep't of Homeland Sec., 787 F.3d 524, 533 (D.C.Cir.2015) (quoting Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam)); Cutler v. U.S. Dep't of Health and Human Servs., 797 F.3d 1173, 1179 (D.C.Cir.2015) (same). The Court must consider "a pro se litigant's complaint in light of' all filings," Brown, 789 F.3d at 152 (internal quotations omitted), including any "affidavits and exhibits ... filed by a pro se litigant [that] were intended to clarify the allegations in the complaint," Abdelfattah, 787 F.3d at 529 (citing Atherton v. District of Columbia Office of Mayor, 567 F.3d 672, 677 (D.C.Cir.2009)). Thus, the pro se litigant may, "in effect, supplement his complaint with the allegations included in his opposition." Brown, 789 F.3d at 152. Nonetheless, the pro se plaintiff must still "plead `factual matters that permit [us] to infer more than the mere possibility of misconduct." Abdelfattah, at 533 (quoting Jones v. Horne, 634 F.3d 588, 596 (D.C.Cir.2011)).
The defendants seek dismissal of all eleven claims asserted by the plaintiff for failure to state a claim, under Federal Rule of Civil Procedure 12(b)(6).
In Count 1, the plaintiff alleges that UDC violated the Rehabilitation Act, 29 U.S.C. § 701 et seq., and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., by suspending her "solely" for "engaging in her protected civil rights activity," and seeking "reasonable accommodation" as required by the ADA and the Rehabilitation Act.
Congress enacted the Rehabilitation Act in recognition that "individuals with disabilities continually encounter various forms of discrimination in such critical areas as ... education." 29 U.S.C. § 701. To that end, section 504 of the Rehabilitation Act provides that "[n]o otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance ...." 29 U.S.C. § 794(a). In practice, this requires federally funded educational programs to make "academic adjustments."
Both the Rehabilitation Act and the ADA, in addition to prohibiting direct discrimination on the basis of disability, also prohibit retaliation for engaging in protected activity. The ADA explicitly provides that "[n]o person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter." 42 U.S.C. § 12203(a). The Rehabilitation Act, unlike the ADA, does not independently prohibit retaliation but rather incorporates by reference the retaliation provisions of other statutory schemes. For a complaint alleging employment discrimination, for example, the Rehabilitation Act adopts the retaliation provision of the ADA. See 29 U.S.C. § 794(d). For all other complaints arising under section 504 of the Rehabilitation Act, such as the instant claim, the Act makes available the "remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.)," 29 U.S.C. § 794a(2), which prohibits retaliation.
To prevail on a retaliation claim under both the ADA and Section 504 of the Rehabilitation Act, the plaintiff must establish essentially the same elements. Specifically, the plaintiff must show "(1) she engaged in a protected activity, (2) the defendant took a materially adverse action against her, and (3) there was a causal connection between the protected activity and the adverse action." Kimmel, 639 F.Supp.2d at 43 (describing the elements of a retaliation claim under Title VI); see also Minter v. District of Columbia, 809 F.3d 66, 70 (D.C.Cir.2015) ("To establish a retaliation claim, Minter must show, inter alia, that there `existed a causal link' between her termination and her request for an accommodation." (italics added)); Peters v. Jenney, 327 F.3d 307, 320 (4th Cir.2003) (same); Alston v. District of Columbia, 561 F.Supp.2d 29, 40 (D.D.C.2008) (listing the same three elements for a retaliation claim arising under both ADA and Section 504, noting that "[a]lthough this
The defendants do not dispute that the plaintiff's requests for accommodations amount to protected activity. See Defs.' Mem. at 8-10; see also Floyd v. Lee, 968 F.Supp.2d 308, 332-33 (D.D.C.2013) (collecting cases from other circuits and this Court finding that a request for reasonable accommodation, without filing a formal charge, is protected activity under the ADA); Alston, 561 F.Supp.2d at 42 ("[S]eeking reasonable accommodations from school officials so that a child can return to school is a protected activity." (citing Weixel, 287 F.3d at 149)). Likewise, the defendants do not dispute that the plaintiff's suspension amounts to a materially adverse action. See Defs.' Mem. at 8-10; see also Mogenhan v. Napolitano, 613 F.3d 1162, 1166 (D.C.Cir.2010) (defining "adverse actions" as any action that "might have dissuaded a reasonable [person] from making or supporting a charge of discrimination"). Thus, the only dispute is whether the plaintiff has sufficiently pleaded the necessary causal link between her requests for reasonable accommodations and her suspension. Defs.' Mem. at 10.
Review of the ample record in this case, even granting the plaintiff the benefit of assuming her factual allegations to be true and drawing reasonable inferences in her favor, demonstrates that she has failed to plead sufficiently the necessary causal link between the protected activity, in the form of her requests for accommodation, and the adverse action. The plaintiff herself alleges that her suspension resulted after three separate hearings, in front of a visiting professor, whom the plaintiff herself alleges she had never previously met. FAC ¶ 83. She makes no allegation that this presiding professor had any information about her other than that presented at the hearings, or that he was aware of her engaging in protected activity or otherwise had any motivation to retaliate against her. Moreover, her written appeals were reviewed by the UDC Vice President for Student Affairs, who similarly is not alleged to have had any knowledge of, or information about, the plaintiff's protected activity. Pl.'s First Appeal, dated Feb. 16, 2012 at 142; Pl.'s Second Appeal, dated Mar. 6, 2012 at 149. The plaintiff's own allegations describing the arduous suspension process undertaken by UDC Law School, including the series of hearings and appeals, conducted by persons unfamiliar with the plaintiff, undercuts any claim of retaliation. Instead, the record presented by the plaintiff supports the reasonable inference that the plaintiff was suspended for violating the UDC Code of Student Conduct by acting erratically towards students and faculty alike, in ways that could be, and were, interpreted as threatening to students and the President of the United States. In other words, the plaintiff's own submissions directly contradict her allegation that her suspension was prompted by her repeated requests for reasonable accommodation.
The plaintiff nevertheless attempts to link her requests for reasonable accommodations with her suspension, arguing both that an inference of causation is supported by the "temporal nexus between the last request," which she allegedly made on February 7, 2012, "and the adverse action," which she describes as her interim suspension beginning on February 9, 2012.
The D.C. Circuit has made clear that "[t]emporal proximity can indeed support an inference of causation." Woodruff v. Peters, 482 F.3d 521, 529 (D.C.Cir.2007). The Court has cautioned, however, that an inference of causation may be drawn only when "the two events" — the protected events and the adverse actions — "are `very close' in time," 482 F.3d at 529 (quoting Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273-74, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001)), citing favorably a Tenth Circuit opinion "reject[ing] such an inference where the events were three months apart," id. (citing Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th Cir.1997)). See also Walker v. Johnson, 501 F.Supp.2d 156, 174 (D.D.C.2007) ("This Court has held that a span of three months between the employee's EEO activity and the employer's adverse action may be too long to support a presumption of causation." (citing Sullivan-Obst v. Powell, 300 F.Supp.2d 85, 94 (D.D.C.2004))).
In this case, the plaintiff has provided such fulsome allegations and documentation that she has pleaded herself out of any inference of causation from mere temporal proximity. In addition to the request she made on February 7, 2012, two days before she was put on interim suspension, the plaintiff alleges she made a total of "28 explicit requests for ADA reasonable accommodation from Defendant Board," starting from December 30, 2010, more than a year prior to her suspension, when the plaintiff alleges she requested accommodation on her law school application, continuing through October 2011, four months before the suspension, when she visited the Associate Dean "at least five times ... [to] discuss[] [the] three types of ADA accommodation ... for 1Ls including Plaintiff to remedy defective lockers." List of 28 ADA Requests at 2-3. Consequently, the plaintiff's alleged protected activity started over a year prior to the plaintiff's interim suspension and continued throughout the plaintiff's time at UDC Law School but with no adverse consequences until February 9, 2012, the same day that the school found the plaintiff made a threat upon the President's life, triggering the need for an interrogation by two United States Secret Service agents. FAC ¶ 64.
Next, the plaintiff discounts the argument that UDC officials, who ultimately found her guilty of violations of the UDC Code of Student Conduct, were unaware of her requests for accommodation. In the plaintiff's view, these officials acted as "conduit[s]" for the Associate Dean, who "targeted Plaintiff ... because of Plaintiff's disability," relying on a "cat's paw" theory of liability. Pl.'s Opp'n at 22. The Supreme Court in Staub v. Proctor Hosp., 562 U.S. 411, 421, 131 S.Ct. 1186, 179 L.Ed.2d 144 (2011), recognized that an impartial decision maker may be influenced by a non-decision maker's illicit intent to retaliate, or used as the "cat's paw," such that an employer may not avoid liability if the impartial decision maker "takes [] into account" a biased, retaliatory report, "without determining that the adverse action was, apart from [the non-decision maker's] recommendation, entirely justified." This theory does not support a finding of retaliation, however, if the impartial decision maker makes an independent determination that adverse action is warranted for reasons "unrelated to the [non-decision maker's] original biased action." Id.
The plaintiff imputes unlawful retaliatory intent on the part of the Associate Dean based on the conclusory statement that "[the Associate Dean] ... used the University as the `conduit' to unlawfully retaliate against Plaintiff solely for asking her for ADA accommodation six times in nine days, for going over her head to report ADA violations to her Supervisor, [Dean of the Law School] (on January 30, 2012), and for reporting ADA violations to Plaintiff's U.S. Senator on February 6, 2012." Pl.'s Opp'n at 22. The logic of this "conduit" theory falls apart, however, for several reasons. First, most significantly, the reason for the Associate Dean's email on February 9, 2012 is revealed by its content, namely that the plaintiff made statements at a meeting with the Associate Dean that were interpreted to pose a threat of harm to the President of the United States. Pl.'s Letter to the Secretary of Education at 76 (describing the contents of the Associate Dean's email). This reason is corroborated by the plaintiff, who admits to having a conversation with the Associate Dean regarding "an incident involving a semi-auto ha[n]dgun in front of the [White House]." Pl.'s Opp'n, Ex. 3 (Pl.'s Email to the Director of Public Safety, dated Feb. 13, 2012) at 21, ECF No. 54-1. Second, since the plaintiff had repeatedly requested ADA accommodations for at least four months prior to the Associate Dean's email on February 9, 2012, without any suggestion of suspension. See List of 28 ADA Requests at 3 ("1 time on October 6, 2011... [a]t least 5 times during Fall 2011 starting 10/10/11"). The conduct prompting the suspension was far reasonably linked to the plaintiff's perceived threat to the President, as indicated in the Associate Dean's email. Third, the four months that elapsed between the plaintiff's first ADA request to the Associate Dean and the Associate Dean's email on February 9, 2012, diminishes any inference of causation. See Woodruf, 482 F.3d at 529; Walker, 501 F.Supp.2d at 174. Finally, the plaintiff does not allege that the Associate Dean was aware of the plaintiff's reports to the Dean of the Law School or to the Senator, further diminishing any basis for the plaintiff's bald attribution of retaliatory animus to this Associate Dean.
The plaintiff also has not plausibly alleged that the Associate Dean's email is "false, reckless and defamatory," so as to raise an inference of retaliatory intent. Pl.'s Letter to the Secretary of Education, dated Sept. 4, 2013 at 75. To support this allegation about the Associate Dean purportedly purposefully misconstruing their
Moreover, contrary to the plaintiff's argument, the Associate Dean's email was not the proximate cause for the plaintiff's suspension. The D.C. Circuit's decision in Hampton v. Vilsack, 685 F.3d 1096 (D.C.Cir.2012), is illustrative. There, the "deciding official ... conducted an independent review of the evidence ... provided [the plaintiff] an opportunity to respond in writing and orally to the proposed termination and he even ordered an additional investigation after [the plaintiff] raised several `reasonable questions' about the charges made against him." Id. at 1101-02. The Court concluded that, regardless of any retaliatory animus on the part of other officials, this process by an independent decision-maker defeated the plaintiff's discrimination claim. Id.
Likewise here, even if the plaintiff's unsupported allegations of retaliatory animus by the Associate Dean were accepted as true, the plaintiff's own allegations make plain that UDC undertook an independent investigation of the plaintiff's behavior, provided the plaintiff three hearings and two written appeals, and uncovered evidence of additional wrongdoing, separate from the plaintiff's behavior in the Associate Dean's office. For example, during the second disciplinary appeal hearing on February 27, 2012, another first-year law student testified that he had heard the plaintiff say the President's
After examining the plaintiff's allegations and, as required by the D.C. Circuit, the exhibits she submitted with her complaint and her opposition to the defendants' motion to dismiss, Brown, 789 F.3d at 152 (holding that the "district court should have considered the facts alleged in all of [the plaintiff's] pleadings," including facts alleged in "filings responsive to a motion to dismiss" (emphasis in original)), the Court finds that the plaintiff has failed to "nudge [her] claims across the line from conceivable to plausible." Twombly, 550 U.S. at 570, 127 S.Ct. 1955. She may have participated in protected activity, but the protected activity could not plausibly have caused her suspension. She was suspended for entirely separate reasons: making threats upon the President's life and engaging in inappropriate and abusive behavior toward her fellow classmates. See Notice of Disciplinary Hearing, dated Feb. 8, 2012 at 114; Notice of Interim Suspension, dated Feb. 9, 2012, at 133. These reasons have nothing to do with her protected activity. Independent, third-party decision makers, who did not know the plaintiff nor her participation in any protected activity, found her guilty on all of the charges, for which she was suspended, after considering corroborating evidence from student testimony and incident reports, not merely the Associate Dean's email. Pl.'s Letter to the Secretary of Education, dated Sept. 4, 2013 at 72; FAC ¶¶ 69, 83; Denial of Pl.'s Appeal, dated Mar. 15, 2015 at 147.
Indeed, it appears the plaintiff herself did not always view her suspension as retaliation for her requests for disability accommodations. In the plaintiff's first appeal, she did not link her suspension to her requests for accommodations anywhere in her five-page, single-spaced letter. See generally Pl.'s First Appeal, dated Feb. 16, 2012 at 142-46. She did, however, assert that she believed her suspension was due to her ongoing dispute with the American Federation of State, County and Municipal Employees ("AFSCME"), which the plaintiff
Accordingly, the defendants' motion to dismiss Count 1 is granted.
In Count 2, the plaintiff claims that three UDC professors, along with the Associate Dean of Students and Dean of the UDC law school, the Assistant to the UDC Vice President for Student Affairs, and the Director of Public Safety at UDC, violated her First Amendment rights, under 42 U.S.C. § 1983, by taking "retaliatory action[s]" against her, FAC ¶ 153, for her persistent reports of "academic fraud involving plagiarism by Law Faculty and Law Students at her public Law School." Pl.'s Opp'n at 26. To establish a retaliation claim under the First Amendment, the plaintiff must demonstrate "(1) that [she] engaged in protected conduct[;] (2) that the government `took some retaliatory action sufficient to deter a person of ordinary firmness in plaintiff's position from speaking again;' and (3) that there exists `a causal link between the exercise of a constitutional right and the adverse action taken against him.'" Doe v. D.C., 796 F.3d 96, 106 (D.C.Cir.2015) (quoting Aref v. Holder, 774 F.Supp.2d 147, 169 (D.D.C. 2011)). Review of the plaintiff's allegations as to each of these defendants shows that she has failed to state a First Amendment retaliation claim arising from her numerous plagiarism reports against any of them.
First, the plaintiff alleges that her Contracts Professor retaliated against her by refusing to serve as her Law Faculty
Second, the plaintiff alleges that, on February 9, 2012, the Assistant to the Vice President for Student Affairs gave her a Notice of Interim Suspension and "called Plaintiff a `terrorist.'" Id. ¶¶ 69, 153. The plaintiff makes no allegation, however, that the Assistant knew about plaintiff's repeated plagiarism reports. On the contrary, the plaintiff alleges that she had never met the Assistant before. Id. ¶ 69.
Third, the plaintiff alleges that an Assistant Professor of Social Work at UDC, who presided over the first disciplinary hearing on February 14, 2012, "spent two-and-one-half hours repeating the derogatory disability terms and disability slurs from Defendant University's official letters of February 8, 2012 and February 9, 2012 that had targeted Plaintiff's physical disability." Id. ¶¶ 83, 153. Additionally, the plaintiff complains that the Assistant Professor did not show her "any of the evidence against her," and did not "allow [her] to introduce any evidence of her own," or "call any witness." Id. Nowhere does the plaintiff allege, however, this Assistant Professor knew about her plagiarism reports or that his treatment of the plaintiff during her disciplinary hearing was a result in any way of her plagiarism reports. In fact, the plaintiff alleges that the Assistant Professor does not teach at the law school, id. ¶ 18, and that she "had never met [the Assistant Professor] before," id. ¶ 83.
Fourth, the plaintiff alleges, on February 14, 2012, the day of her first disciplinary hearing, the Director of Public Safety at UDC retaliated against her by preventing her from bringing her Handicapped Book Cart to the disciplinary hearing in order to demonstrate "how it might have irrationally bothered some Law Students."
Fifth, the plaintiff alleges that, on February 6, 2012, an adjunct professor, after class, warned the plaintiff that if she "did not stop reporting plagiarism, in particular, [her Torts Professor's] 27-page plagiarism of his official Torts I Outline, which he had placed on the Law School's official website, then Plaintiff was going to get the `surprise of her life.'" Id. ¶ 27. The defendants argue that the plaintiff failed to allege that the adjunct professor's warning was a retaliatory action sufficient to deter a person of ordinary firmness from speaking again, especially because the plaintiff's speech was not actually chilled, and she continued to make plagiarism reports even after February 6, 2012. Defs.' Mem. at 14. The defendants are correct. A vague statement from an adjunct professor, even if construed as a "warning," as the plaintiff characterizes it, that has no repercussions, cannot, as a matter of law, deter a person of ordinary firmness from exercising her freedom of speech. See The Gallup Organization v. Scully, No. Civ.A. 03-849, 2005 WL 3213963, at *4 (D.D.C. Oct. 5, 2005) (finding the defendant's response not "sufficiently severe as to constitute actionable retaliation," where the defendant only stated that he "`would like to investigate'" the plaintiff and that the plaintiff "`should be MUCH more careful' with his accusations," because the defendant's action did not actually prevent the plaintiff from exercising his freedom of speech and did not result in "any other adverse consequences" (emphasis in the original)). In fact, the request did not deter the plaintiff from continuing to report perceived plagiarism at UDC Law School, and she subsequently submitted plagiarism reports to various UDC officials and federal government officials. See Pl.'s Letter to Sen. Reid, dated Feb. 6, 2012 at 98; Pl.'s Email to Director of Public Safety, dated Feb. 8, 2012 at 109; Pl.'s Email to Director of Public Safety, dated Feb. 8, 2012 at 118-119; Pl.'s Opp'n, Ex. 29 (Pl.'s Email to Dean of the Law School, dated Feb. 22, 2012) at 169, ECF No. 54-1; id. (Pl.'s Email to Vice President UDC, dated Feb. 27, 2012) at 170, ECF No. 54-1; id., Ex. 31 (Pl.'s Email to Dep't of Ed., dated Mar. 22, 2012) at 183, ECF No. 54-1.
Lastly, the plaintiff alleges that on February 8, 2012, the Dean and Associate Dean of Students at the Law School retaliated against her for making plagiarism reports by initiating proceedings that eventually resulted in her suspension from UDC Law School.
First, the temporal proximity between the plaintiff's plagiarism reports and her suspension does not support an inference of causation in this case because the plaintiff alleges that she started making plagiarism reports within the first week of matriculating at UDC Law School. See FAC ¶ 105 (the plaintiff attempted to make a plagiarism complaint on August 18, 2011, three days after matriculating). The plaintiff engaged in the same type of protected activity in mid-August 2011, and yet she was not suspended until six months later in February 2012. The plaintiff may have continued to make plagiarism reports until just shortly before her suspension, but any inference of causation from the timing is diluted by the fact that the plaintiff had been making the same plagiarism reports for six months, with no retaliatory action from the defendants.
Second, the plaintiff fails to link her plagiarism reports with her suspension because the plaintiff's own allegations and attached exhibits demonstrate she was suspended because of her own behavior. As explained supra in Part III.A.2, the plaintiff was suspended after three hearings and two written appeals, presided over by individuals whom the plaintiff herself concedes did not know the plaintiff or about her participation in any protected activity.
Finally, the plaintiff's effort to accuse the Dean and the Associate Dean of "us[ing] the University as the `conduit' of her malicious allegation to eject Plaintiff from the Campus," relying again on a cat's paw theory of liability, Pl.'s Opp'n at 27, is unavailing. The plaintiff's contention fails because she has not plausibly alleged that either the Associate Dean or the Dean of the Law School harbored any retaliatory intent against the plaintiff, or that their actions were the proximate cause of her suspension. The plaintiff also has not plausibly alleged that the Associate Dean purposefully misconstrued her statements made in the Associate Dean's office on February 9, 2012, or that the Dean of the Law School purposefully stood by, with the intent to suspend her. See supra Part III. A.2. Rather than being improperly targeted and unfairly treated, the plaintiff admits that she received opportunities "to respond in writing and orally" to the charges about her misconduct, with an independent review by individuals who did not know her, and those charges were supported by evidence independent of the Dean and Associate Dean. See, e.g., Pl.'s Letter to the Secretary of Education, dated Sept. 4, 2013 at 72 (a law student testified that he heard the plaintiff say "Obama" and "assassination" in the same sentence); Notice of Disciplinary Hearing, dated Feb. 8, 2012 at 114 (the second basis for the plaintiff's suspension relied on incident reports filed with the Office of Public Safety, documenting the plaintiff's abusive behavior towards fellow law school students).
The plaintiff alleges in Count 3 that five individual defendants, "who at all times were acting under color of State Law, violated Plaintiff's protected right to Due Process of Law under the Fifth Amendment of the United States Constitution." FAC ¶ 157; see Bolling v. Sharpe, 347 U.S. 497, 499-500, 74 S.Ct. 693, 98 L.Ed. 884 (1954) (applying the Fifth Amendment to the District of Columbia). The Supreme Court has held that the Due Process Clause applies to students in public post-secondary educational settings and requires students facing suspension due to disciplinary problems to be "given oral or written notice of the charges against [them] and, if [they] den[y] them, an explanation of the evidence the authorities have and an opportunity to present [their] side of the story." Bd. of Curators of Univ. of Missouri v. Horowitz, 435 U.S. 78, 85, 98 S.Ct. 948, 55 L.Ed.2d 124 (1978) (quoting Goss v. Lopez, 419 U.S. 565, 581, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975)). The Supreme Court has cautioned, however, that the Due Process Clause does not require a formal hearing and that an "`informal give-and-take' between the student and the administrative body dismissing him" would be sufficient to "give the student `the opportunity to characterize his conduct and put in what he deems the proper context.'" Id. (quoting Goss, 419 U.S. at 584, 95 S.Ct. 729).
In the instant case, the plaintiff alleges that she "was never given any evidence or any factually-based allegations to dispute" because "the letter sent to Plaintiff ... summarized no wrongdoing by Plaintiff," that "there was no fact-finding process of any kind because there were no factually-based allegations," and that the plaintiff was "denied the right to call any witness or introduce any evidence to the contrary." FAC ¶ 57. These allegations are fully belied by the plaintiff's own exhibits, which reflect the ample and fair process UDC provided to her.
Contrary to the plaintiff's allegation that she was not given sufficient notice of the charges against her because the notices contained only "two-word `charge/ fact statements," Pl.'s Opp'n at 28-29, the two notices submitted by the plaintiff as exhibits plainly describe in detail both the inappropriate behavior that she was accused of exhibiting and the specific sections of the UDC Code of Student Conduct that she was charged with violating. The first notice informed the plaintiff that two incident reports had been filed with the Office of Public Safety alleging the plaintiff "us[ed] lewd, threatening and racially insensitive remarks towards another UDC Law School Student," "spread[] rumors" that a classmate "was addicted to drugs" and was "the victim of spousal abuse," and verbally abus[ed] another student for allegedly stealing some class notes. Notice of Disciplinary Hearing, dated Feb. 8, 2012 at 114. The second notice advised the plaintiff that she was placed on "interim suspension" due to "misconduct ... in the Office of the Associate Dean" on February 9, 2012, that violated the UDC Code of Student Conduct rules, inter alia, against "menacing," and "terroristic threats." Notice of Interim Suspension, dated Feb. 9, 2012 at 133.
The plaintiff's reliance on Dixon v. Alabama State Bd. of Ed., 294 F.2d 150 (5th Cir.1961), is misplaced since this case only bolsters the defendants' position that she received more than adequate notice. The plaintiffs in Dixon were expelled before
Moreover, the plaintiff's complaint that no fact-finding occurred at the hearings on the charges against her cannot be squared with her submitted exhibits. The plaintiff herself described the evidence presented during the three hearings, including student testimony that the plaintiff made a threat on the President's life and the Associate Dean's email regarding the same. See, e.g., Pl.'s Letter to the Secretary of Education, dated Sept. 4, 2013 at 69 ("On Feb. 27 and March 2, 2012, [Assistant to the Vice President and a dean] introduced an email of [the Associate Dean]."); id. at 72 ("[A] failing 1L student came to the Feb. 27, 2012 "Student [Disciplinary] Appeal," who said he thought that he might have heard me once say the words `Obama' and `assassination,' unconnected by any verb[.]"). The plaintiff also concedes that she was given an opportunity to "present [her] side of the story," Horowitz, 435 U.S. at 85, 98 S.Ct. 948, both orally during the hearing and later in writing, see e.g., FAC ¶ 80 ("Plaintiff denied all of the terms and contents ascribing wrongdoing to her in the University's official notices of deprivation on February 8, 2012 and February 9, 2012 ...."); Pl.'s First Appeal, dated Feb. 16, 2012 at 142-45 ("[I]t was I who made a genuine report to FBI.gov on 1/16/2012 at 5:30 pm — which [Associate Dean] and I discussed ... — concerning a Metro Bus Driver seeing a man in a business suit with a concealed semiautomatic handgun get on his bus at H street by the White House... How could such an FBI.gov report ever be twisted into such a statement as a `terroristic threat' allegedly by me...."); Pl.'s Second Appeal, dated Mar. 6, 2012 at 149-50 ("At
Additionally, the plaintiff broadly alleges she was "denied the right to call any witness or introduce any evidence to the contrary." FAC ¶ 57. Closer examination of her supporting allegations, however, reveal that she was not allowed to introduce evidence that appeared to be irrelevant or likely not to exist, and she does not allege that she was denied the opportunity to present relevant evidence or testimony. For example, she complains that she was not allowed to "call the `L' Street office of the U.S. Secret Service to verify whether U.S. Secret Service Agents had come — and not just some friends of [a professor at UDC Law school or the Associate Dean], with fake identifications." Pl.'s Letter to the Secretary of Education, dated Sept. 4, 2013 at 68-69. She was also not allowed to explain her criminal law professor's "discussions on [the] Hinckley and Gordy cases," two federal criminal cases, "in [her] suspension hearings," nor was she allowed to "admit into evidence a document from November 2011 from Federal Court in D.C. — the detention memorandum for Oscar Ortega Hernandez." Id. at 71-72. The plaintiff also complains that she was not allowed to discuss four incidents in which she felt discriminated by her fellow classmates based on her disability, during the first disciplinary hearing on February 14,
Finally, the plaintiff complains that she was denied due process because she "had no power to compel [witnesses] to come" to her defense, FAC ¶ 80, and that she was not provided with a "Law Faculty Witness" because no professor was willing to attend, id. ¶ 50-52. "A school is an academic institution, not a courtroom or administrative hearing room." Horowitz, 435 U.S. at 88, 98 S.Ct. 948. Due process does not require that the plaintiff have the power to compel witnesses or to have a faculty adviser present during the hearing. See Furey v. Temple University, 884 F.Supp.2d 223, 254 (E.D.Pa.2012) (finding that "[i]n the normal course of disciplinary proceedings," the school's effort to contact each witnesses to request their presence is sufficient); Turof v. Kibbee, 527 F.Supp. 880, 886 (E.D.N.Y.1981) (finding no constitutional deprivation where a student was "denied the means to compel attendance of witnesses" during a suspension hearing). Thus, even assuming the truth of the plaintiff's allegations on this point, she fails to state a legally cognizable claim.
Accordingly, since the plaintiff's own allegations and submitted materials demonstrate that she was provided ample due process, she has failed to state a claim in Count 3.
The plaintiff next brings three claims based on the UDC Honor Code. Specifically, the plaintiff claims that (1) UDC "breached its written DCSL-UDC Honor Code Contract with Plaintiff by refusing to take a credible report of Law Faculty plagiarism
"`To prevail on a claim of breach of contract, a party must establish (1) a valid contract between the parties; (2) an obligation or duty arising out of the contract; (3) a breach of that duty; and (4) damages caused by breach.'" Francis v. Rehman, 110 A.3d 615, 620 (D.C.2015) (quoting Tsintolas Realty Co. v. Mendez, 984 A.2d 181, 187 (D.C.2009) (emphasis in the original)). A valid, enforceable contract requires that the parties "(1) express an intent to be bound, (2) agree to all material terms, and (3) assume mutual obligations." Dyer v. Bilaal, 983 A.2d 349, 356 (D.C. 2009) (citing Eastbanc Inc. v. Georgetown Park Assocs., 940 A.2d 996, 1002 (D.C. 2008)). If a valid contract is in place, but "a party `evades the spirit of the contract, willfully renders imperfect performance, or interferes with performance by the other party, he or she may be liable for breach of the implied covenant of good faith and fair dealing.'" Sundberg v. TTR Realty, LLC, 109 A.3d 1123, 1133 (D.C.2015) (quoting Paul v. Howard Univ., 754 A.2d 297, 310 (D.C.2000)). Set against these legal principles, the plaintiff has failed to allege sufficient facts to establish that the UDC Honor Code is an enforceable contract.
The UDC Honor Code lacks both an intent to be bound and mutuality of obligation. The UDC Honor Code is merely an "acknowledgement and pledge" that a student "will read and become familiar with ... the UDC-DCSL Student Handbook," and "pledge that [he or she] will abide by the UDC-DCSL Honor System," as spelled out in the Student Handbook. Pl.'s Opp'n, Ex. 33 (UDC Honor Code) at 191, ECF No. 54-1. The plaintiff's bald assertion that "[t]he material terms of the Honor Code Contract require mutual noticing, a duty freely taken by each party," Pl.'s Opp'n at 34, is directly contradicted by the text of the UDC Honor Code, which disclaims any obligation whatsoever upon UDC. The UDC Student Handbook, which outlines the UDC Honor System, explicitly states that it "does not constitute a contract between the student and the David A. Clarke School of Law or the University of the District of Columbia." Defs.' Mem. at 19 (quoting Defs.' Mot. Ex. E ("UDC-DCSL Student Handbook") at 15, ECF No. 52-1). Instead, the Honor Code refers only to what the student must do: read the Student Handbook, including the Academic Norms and Standards portion that spells out the honor system, and promise to abide by the honor system. In short, the UDC Honor Code is not an enforceable contract.
The plaintiff's "intentional misrepresentation and fraudulent inducement" claim in Count 6 fails for the same reason. The plaintiff alleges she relied on "Defendants' promise of policing plagiarism in the Honor Code Contract" to make her decision to enroll at UDC Law School. Pl.'s Opp'n at 36; FAC ¶¶ 170, 172. Contrary to her claim, however, UDC makes no promise whatsoever of policing plagiarism in the
Accordingly, the plaintiff's Counts 4, 5 and 6 fail to state a claim and must be dismissed.
The plaintiff brings three claims based on the alleged failure of UDC Law School to comply with the requirements set forth in the American Bar Association ("ABA") Standard 512.
The crux of these three claims is the plaintiff's effort to seek redress for a perceived failure by UDC Law School to comply with an ABA Standard. Other courts confronted with similar claims have consistently found that ABA standards do not create a private right of action. See Waller v. Southern Illinois Univ., 125 F.3d 541, 542 (7th Cir.1997) ("Even if a public institution, in order to be accredited by the ABA, promises to adhere to the standards for accreditation that the ABA has laid down, it would not follow that the institution was undertaking a contractual duty to its students .... But of course the institution could if it wanted (and it was permitted by state law) enter into a contract with the students to abide by the ABA's standards[.]"); Hewett v. City of Grand Rapids, No. 1:12-cv-998, 2012 WL 5409790, at *8 (W.D.Mich. Oct. 15, 2012) ("The ABA Standards describe the requirements
Moreover, the plaintiff has not alleged that UDC Law School entered into any contract with her promising to abide by ABA Standards. Instead, she merely alleges that she somehow acquired a "contractual right to an ABA-quality Law School with an ABA 512 Complaint Process," FAC ¶ 104, because she has paid "ABA-level tuition," id. ¶ 103; see also Pl.'s Opp'n at 36 ("Plaintiff had an implied contract with the University to provide an ABA-quality Law School."). UDC Law School owes the plaintiff no contractual duty to abide by ABA standards merely because of its status as an ABA-accredited law school.
The plaintiff has also failed to allege sufficient facts to support her claim of fraudulent misrepresentation. The plaintiff alleges that "Defendant University promised Plaintiff an ABA Law School with an ABA 512 Complaint Process as ordered by the ABA on August 8, 2011," and that she relied on this alleged misrepresentation to enroll at UDC Law School. FAC ¶ 188. The plaintiff could not have possibly have relied upon any representations about ABA Standard 512 in making her decision to attend UDC Law School, however, because according to her own allegations, ABA Standard 512 was voted upon in August 2011, id. ¶ 97, when the plaintiff had already made her decision to attend UDC Law School by July 2011, see Pl.'s Opp'n, Ex. 33 (UDC Law School Registration Instructions Letter, dated July 18, 2011) at 189, ECF No. 54-1. Furthermore, the plaintiff admitted that she did not know about ABA Standard 512 until February 2012, following her suspension. FAC ¶ 95-96.
Accordingly, Counts 7, 8, 9 fail to state a claim and must be dismissed.
The plaintiff brings, in Count 10 of the her first amended complaint, a claim for "unreasonable restrictions on participa[tion] in school integration," under 42 U.S.C. §§ 12182 (b)(1)(C) & (b)(1)(D)(ii) and 29 U.S.C. 701, et seq. FAC Count 10. The ADA provides that "[n]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs or activities of a public entity," and this applies to a public law school. 42 U.S.C. § 12132. Similarly, the Rehabilitation Act requires "qualified handicapped individuals [be provided] the meaningful access to which they are entitled," recognizing that "reasonable accommodations in the [federal] grantee's program or benefit may have to be made." Alexander v. Choate, 469 U.S. 287, 301, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985). Here, the plaintiff alleges she repeatedly requested the following accommodations: (1) "moving the book lockers," (2) "turning a small, vacant and unused room ... into a study carrel area for ADA students by means of a card-reading pass key lock," and (3) "better seating assignments to ease ABA students' entry and exit in law classrooms if they had mobility devices." FAC ¶ 139. UDC, however, allegedly failed to provide any of these "reasonable modifications" for her "lifting disability." Pl.'s Opp'n at 24.
Furthermore, none of the plaintiff's requests relate to her access to law school facilities or benefits. The plaintiff was simply dissatisfied with the location of her book locker, which she received through a lottery. Pl.'s Opp'n at 5; FAC ¶ 139. The plaintiff also wanted a "study carrel area" for disabled students to store their books, despite access to lockers and study carrels presumably in the law library, where the plaintiff has professed no difficulty accessing. Pl.'s Opp'n at 9; FAC ¶ 139. Finally, the plaintiff requested "better seating assignments to ease ABA students' entry and exit in law classrooms if they had mobility devices," id. even though she does not allege that she herself had any difficulty entering or exiting her assigned seat. The plaintiff alleges only that she used a "Handicapped Book Cart" to reach her seat in "the middle of many classes," and that she had to pass some students in the rows along the way, id. ¶ 75, a nuisance also faced by able-bodied students. Tellingly, the plaintiff revealed, in an email to the Dean of the Law School, that the plaintiff wanted better seating assignments because she "want[ed] to sit up closer," not for any mobility reasons. Pl.'s Opp'n Ex. 14 ("Email to Dean of the Law School Requesting Seating, dated Jan. 30, 2012") at 53, ECF 54-1. The plaintiff simply has not plausibly alleged that she was restricted in any way from participating or benefitting from her law school program.
Accordingly, the plaintiff has failed to state a claim in Count 10.
Finally, the plaintiff brings a defamation claim against UDC for releasing her transcript, including her suspension, to the Law School Data Assembly Service ("LSDAS"). Under D.C. law, to bring a defamation claim, the plaintiff must allege "`(1) that the defendant made a false and defamatory statement concerning the plaintiff; (2) that the defendant published the statement without privilege to a third party; (3) that the defendant's fault in publishing the statement amounted to at least negligence; and (4) either that the statement was actionable as a matter of law irrespective of special harm or that its publication caused the plaintiff special harm.'" Armstrong v. Thompson, 80 A.3d 177, 183 (D.C.2013) (quoting Blodgett v. Univ. Club, 930 A.2d 210, 222 (D.C.2007)). Here, the plaintiff has not alleged that the defendant made a false statement. The plaintiff herself acknowledges, as she must, that she has been suspended. FAC ¶ 93. The validity of her suspension is the subject of the instant lawsuit, but the fact that she was suspended from UDC Law School is indisputable. Accordingly, the plaintiff cannot satisfy an essential element for her defamation claim, which must be dismissed.
For the foregoing reasons, the plaintiff has failed to state any claims upon which relief can be granted. Rather, the plaintiff's extensive factual allegations, together with the ample documentation she submitted, and drawing all reasonable inferences that may be drawn in her favor, has made clear that her "success on the merits is impossible." Peters v. District of Columbia, 873 F.Supp.2d 158, 167 (D.D.C.2012). Accordingly, the defendants' motion to dismiss, ECF No. 52, is GRANTED.
An Order consistent with this Memorandum Opinion will be issued contemporaneously.
