Black v. Dist. of Columbia

134 F.Supp.3d 255

Dion E. Black, Plaintiff,

v.District of Columbia, Defendant.

Civ. Action No. 13–02036 (EGS)

United States District Court, District of Columbia.

Signed September 29, 2015

Dion E. Black, Washington, DC, pro se.

Shermineh C. Jones, Office of the Attorney General for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

Emmet G. Sullivan, United States District Judge

I. Introduction

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.¹ Am. Compl., Docket No. 11 at 11– 17. Upon consideration of the motion, the response and reply thereto, the applicable law, and the entire record, the District's Motion to Dismiss is GRANTED.

II. Background

A. Mr. Black's official reprimand procedure and reassignment

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.

B. Mr. Black's appeal of the final reprimand decision

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 implement the alternative dispute resolution procedure "as required pursuant to District Personnel Manual § 1633.1(d)." Id.

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.²

C. Mr. Black's whistleblowing complaint

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.

E. The Comprehensive Merit Protection Act

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) ).

III. Standard of Review

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 in the plaintiff's favor, accepting all factual allegations as true, and giving the plaintiff the benefit of all inferences that can be drawn therefrom. Redding v. Edwards, 569 F.Supp.2d 129, 131 (D.D.C.2008) (citing Kowal v. MCI Commc'ns Corp ., 16 F.3d 1271, 1276 (D.C.Cir.1994) ). Nevertheless, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id."While detailed factual allegations are not necessary, [the] plaintiff must plead enough facts to ‘raise a right to relief above the speculative level.’ " Morello v. D.C., 73 F.Supp.3d 1, 3 (D.D.C.2014) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). The court "may consider attachments to the complaint as well as the allegations contained in the complaint itself." English v. D.C., 717 F.3d 968, 971 (D.C.Cir.2013).

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).

IV. Analysis

A. Mr. Black's Claim under 42 U.S.C. § 1983 fails

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...