Emmet G. Sullivan, United States District Judge.
Plaintiff Dion Black ("Mr. Black") filed this lawsuit after being reassigned by Defendant, the District of Columbia ("the District"), to a new position within the District's Department of Transportation ("DDOT"). Mr. Black alleges four claims: (1) violation of his due process rights; (2) conspiracy among District employees to deprive him of his due process rights; (3) whistleblower protection; and (4) defamation.
Mr. Black worked in the Office of the General Counsel at the DDOT. Am. Compl. ¶ 25. On January 10, 2012, Assistant Attorney General for DDOT Melissa Williams ("Ms. Williams") informed Mr. Black that she was proposing an official reprimand be issued for his absence without approved leave, neglect of duty, and insubordination. Id. ¶¶ 13-14. Mr. Black, in accordance with DDOT procedures and D.C. Code § 1-616.51 (2013), was afforded an opportunity to provide a written response to the proposed discipline action. Id. ¶ 17. Mr. Black filed a written response on January 17, 2012 with Steve Messam ("Mr. Messam"), the Deputy Chief of the DDOT's Administrative Services Branch. Mr. Messam acknowledged receipt of Mr. Black's response by signing the envelope within which the written response was enclosed. Id. ¶ 22.
Mr. Black's case was assigned to Ronaldo Nicholson ("Mr. Nicholson"), a deciding official who did not have a working relationship with Ms. Williams or Mr. Black. Id. ¶ 32. In May 2012, Mr. Black was reassigned to a position in the Transportation Policy and Planning Administration ("TPPA") within DDOT. Id. ¶ 25; Ex. 6.
In November 2012, Mr. Black requested a copy of DDOT's grievance alternative dispute procedures. Id. Mr. Messam directed Mr. Black to the District Personnel Manual Chapter 16. Id. ¶¶ 30-31. Mr. Black responded that "in accordance with DPM § 1633.1, each agency Director must approve an agency policy for alternative dispute resolution and that this approved process must be reasonably made known to employees upon request." Id. ¶ 30.
On December 7, 2012, Ms. Williams allegedly instructed one of her subordinates to finalize the disciplinary action letter for Mr. Nicholson's signature. Id. ¶ 33. In December 2012, Mr. Black contacted Mr. Nicholson directly to ensure he had Mr. Black's response. Id. ¶ 33. Mr. Black then e-mail Mr. Messam to ensure his response was being considered. Id., Ex. 8. Mr. Messam assured Mr. Black that the Mr. Nicholson was following the fair and impartial procedures set forth by DPM 1613 and that Mr. Black's response had been submitted to Mr. Nicholson. Id. Mr. Messam added "your attempt at ex parte communication with Mr. Nicholson essentially impedes [the fair and impartial] process." Id. Still, Mr. Messam invited Mr. Black to resubmit his response in a sealed package to Human Resources staff. Id.
On December 21, 2012, Mr. Messam met with Mr. Black and gave him the final decision letter signed by Mr. Nicholson. Id. ¶ 45. The letter stated that Mr. Nicholson reviewed the proposed reprimand, Mr. Black's written response, and other documentation. Id. ¶ 46; see also Ex. 9. Mr. Black asked for a copy of his response from Mr. Messam's file. Id. ¶ 47. Mr. Messam indicated Mr. Black's response was in Ms. Williams's possession. Id.
After Mr. Black's reprimand was issued, he submitted a grievance of the discipline action to Jose Thommana ("Mr. Thommana"), the assigned grievance official. Id. ¶¶ 49-50. Mr. Black argued that the reprimand process violated his due process rights, in particular because Ms. Williams and Mr. Messam did not provide Mr. Black's response to the proposed disciplinary action to Mr. Nicholson. Id. at ¶ 51. Mr. Black also requested that Mr. Thommana
Mr. Thommana upheld the official reprimand, noting that the DDOT discipline process complied fully with applicable regulations, as Mr. Black was given the opportunity to respond to the proposed reprimand. Id. ¶ 52; Ex. 11. He also concluded that the alternative dispute resolution mechanism would not be applied, stating, "I have attempted to resolve your grievance through the process of formal submission and response, which constitutes a formal dispute resolution procedure." Id.
While the proposed discipline against Mr. Black was pending, Mr. Black filed a complaint with the D.C. Attorney General detailing "gross mismanagement, personnel rules violations, and retaliatory practices" and identified Ms. Williams and DDOT General Counsel Frank Seales ("Mr. Seales") as the parties responsible for this mismanagement. Id. at ¶ 26. On November 1, 2012, Mr. Black received a response from Kim McDaniel ("Ms. McDaniel"), the Director of Equal Employment Opportunity for the D.C. Office of the Attorney General, to discuss his allegations. Id. ¶ 27. Ms. McDaniel also forwarded a copy of the complaint to Ms. Williams and Mr. Seales, to which Ms. Williams responded by attaching a copy of Mr. Black's proposed discipline action. Id. ¶¶ 28-29.
The purpose of the Comprehensive Merit Protection Act (CMPA) is to ensure that the District has "a modern flexible system of public personnel administration, which shall ... [e]stablish impartial and comprehensive administrative or negotiated procedures for resolving employee grievances. Washington v. District of Columbia, 538 F.Supp.2d 269, 275 (D.D.C. 2008) (quoting D.C. Code §§ 1-601.2(a)(5)); see also Robinson v. Dist. of Columbia, 748 A.2d 409, 411 (D.C.2000) (holding that "with few exceptions, the CMPA is the exclusive remedy for a District of Columbia public employee who has a work-related complaint of any kind."). "It is undisputed that the [CMPA] creates a property interest for employees governed by it." McManus v. District of Columbia, 530 F.Supp.2d 46, 72 (D.D.C.2007) (quoting Fonville v. District of Columbia, 448 F.Supp.2d 21, 26 (D.D.C.2006)).
To survive a motion to dismiss, a complaint "must contain sufficient factual matter accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citations and quotations omitted).
In considering a 12(b)(6) motion, the Court should liberally view the complaint
Mr. Black is a pro se litigant. The Court is mindful that pro se complaints, however inartfully pleaded, must be held to "less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (citations and quotations omitted).
The District asserts that Mr. Black's 42 U.S.C. § 1983 claim fails as a matter of law because Mr. Black's allegations do not support a finding that his due process rights were violated. Def.'s Mem. Supp. Def.'s Mot. Dismiss, Docket No. 13, Ex. 1 at 7, 11. Mr. Black maintains that his due process rights were violated as a direct result of the District's customs and practices. Pl.'s Mem. Opp. at 12.
Title 42 U.S.C. § 1983 provides a private cause of action against any person who, under the color of state law, deprives another of a constitutional or statutory right. 42 U.S.C.A. § 1983 (1996). Municipalities, including the District, are considered "persons" under § 1983. Monell v. N.Y.C. Dep't of Soc. Serv., 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Although respondeat superior liability is not applicable under § 1983, a municipality may be liable for an employee's constitutional violations if that employee acted "pursuant to municipal policy or custom." Id. at 694, 98 S.Ct. 2018. Thus, in order to state a § 1983 claim, Mr. Black must sufficiently allege that his constitutional right to due process was violated pursuant to a policy or custom of the District.
The Due Process Clause guarantees that no person "shall ... be deprived of life, liberty, or property, without due process of law." U.S. Const. amend. V. Substantive due process claims must be supported by allegations that show government action "so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience." Cnty. of Sacramento v. Lewis, 523 U.S. 833, 847 n. 8, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). On the other hand, procedural due process "imposes constraints on governmental decisions which deprive individuals of `liberty' or `property' interests...." McManus, 530 F.Supp.2d at 72. The Government must provide "sufficient notice and a meaningful opportunity to be heard on the deprivation of a protected liberty or property interest." Rason v. Nicholson, 562 F.Supp.2d 153, 155 (D.D.C.2008) (citing United States v. E-Gold, Ltd., 521 F.3d 411, 415 (D.C.Cir.2008)).
A government employee's due process rights may be violated when an "adverse job action" is combined with "official defamation" or other stigma that prevents the employee from securing employment elsewhere. Hutchinson v. CIA, 393 F.3d 226, 230-31 (D.C.Cir.2005) (quoting
In this case, Mr. Black alleges that he suffered "injury to his professional reputation" as a result of "Defendant's practice of denying employees an impartial review of discipline actions and Plaintiff's independent acts of retaliation." See Am. Compl. at ¶ 83. Mr. Black does not allege that his reassignment constitutes a demotion in rank or salary. Absent any allegation of demotion, Mr. Black's claim of pure reputational damage fails as a matter of law because such claims are not protected by the due process clause. Coleman v. Napolitano, 65 F.Supp.3d 99, 107 (D.D.C. 2014) ("[C]ourts have routinely rejected claims that a mere reassignment or change of duties, without a corresponding reduction in rank or pay, amounts to a divestment of a property interest.") (citations omitted); see also New Vision Photography Program, Inc. v. District of Columbia, 54 F.Supp.3d 12, 31 (D.D.C.2014) (holding that "purely reputational damage does not qualify for due-process protection.").
Beyond alleged reputational damage, the gravamen of Mr. Black's complaint is that his procedural due process rights were violated by the manner in which the District handled his official reprimand and post-discipline grievance processes. Mr. Black alleges that the District did not provide access to all remedies under the CMPA. Specifically, Mr. Black argues that he has "presented facts to support that he was denied access to the alternative dispute mechanism that is required by law to be part of the post-disciplinary grievance procedure." Am. Comp. ¶¶ 51-52; Pl.'s Opp. Mem. at 15. Mr. Black also alleges that his post-discipline grievance hearing was "patently inadequate as it failed to provide an impartial review." Pl.'s Opp. Mem. at 16.
"Due process may be satisfied by either pre-deprivation procedures or `adequate post-deprivation remedies.'" Rason, 562 F.Supp.2d at 155 (quoting Dickson v. Mattera, 38 Fed.Appx. 21 (D.C.Cir. 2002)). The Supreme Court has enumerated three factors to consider when determining whether an administrative procedure is constitutionally sufficient:
Mathews v. Eldridge, 424 U.S. 319, 321, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). Courts have repeatedly found that "[g]iven the layers of administrative and judicial review it provides, the CMPA satisfies constitutional due process requirements" under the Mathews test. See e.g. Owens v. D.C., 923 F.Supp.2d 241, 250 (D.D.C.2013).
Mr. Black's argument that he was entitled, as a matter of law, to an alternative dispute procedure, is incorrect. The
Moreover, even if denial of an alternative dispute process could be deemed a violation of a requirement under the District's personnel manual, "[a] breach of procedural requirements does not create a due process violation unless an individual was denied a fair forum for protecting his state rights." McDarby v. Dinkins, 907 F.2d 1334, 1337 (2d Cir.1990); see also Payne v. D.C., 808 F.Supp.2d 164, 174 (D.D.C.2011) ("breach of state procedural requirements is not, in and of itself, a violation of the Due Process Clause.").
Finally, Mr. Black's argument that he did not receive a fair and impartial hearing also fails. Mr. Black argues that "Mr. Thommana's conclusions in the grievance included the absolutely false statements that the District's discipline process was in full compliance with the regulations." Pl.'s Mem. Opp. at 17. The merits of this argument fail for the reasons discussed above: a plain-language reading of the regulations only requires a process
Because Mr. Black has not sufficiently alleged that his due process rights were infringed, the Court need not address the second prong of the § 1983 analysis, namely, whether the District has a policy or custom of denying due process rights during disciplinary proceedings. See, e.g. Monell, 436 U.S. at 694, 98 S.Ct. 2018. For the same reason, the Court need not analyze Mr. Black's conspiracy claim, as it fails absent sufficient facts establishing the probable violation of Mr. Black's due process rights.
Mr. Black also pleads a claim of retaliation under the Whistleblower Protection Act. Am. Compl. at ¶ 26. In August 2012, eight months after the January 2012 disciplinary proceedings were initiated, Mr. Black submitted a complaint to the D.C. Attorney General detailing allegations of "gross mismanagement, personnel rules violations, and retaliatory practices." Id.
The Whistleblower Protection Act endeavors to "[e]nsure that rights of employees to expose corruption, dishonesty,
In this case, Mr. Black's whistleblower claim fails because he cannot show that his disclosure of alleged mismanagement was a contributing factor motivating the adverse personnel action taken against him. Simply put, a causal connection between the Mr. Black's DDOT disciplinary proceedings and his whistleblowing complaint is temporally impossible because Mr. Black did not make a formal whistleblowing complaint until months after his DDOT disciplinary proceedings started. Thus, Mr. Black has failed to state a plausible retaliation claim under the Whistleblower Protection Act.
For the foregoing reasons, the District's Motion to Dismiss is
