Sutton v. Billings, et al

MOTION to Dismiss for Failure to State a Claim

D. Md.January 17, 2017

1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND NEAL SUTTON, ) ) Plaintiff, ) ) v. ) Case No. 1:16-cv-03364 (ELH) ) SUSAN K. BILLINGS et al., ) ) Defendants. ) ____________________________________) DISTRICT OF COLUMBIA’S MOTION TO DISMISS THE AMENDED COMPLAINT Defendant District of Columbia, through counsel, moves the Court pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss the complaint for failure to state a claim upon which relief can be granted. 1 In support of its motion, the District of Columbia relies upon the attached memorandum of points and authorities DATE: January 17, 2017. KARL A. RACINE Attorney General for the District of Columbia GEORGE C. VALENTINE Deputy Attorney General Civil Litigation Division MICHAEL K. ADDO Chief, Civil Litigation Division, Section IV /s/ Robert A. DeBerardinis, Jr. ROBERT A. DEBERARDINIS, JR. [#05533] Assistant Attorney General 441 Fourth Street, N.W. Sixth Floor South Washington, DC 20001 1 Plaintiff in his amended complaint also brings suit against his former spouse Susan Billings and Anne Arundel County. Case 1:16-cv-03364-ELH Document 18 Filed 01/17/17 Page 1 of 11 2 (202) 724-6642; (202) 741-8895 (fax) robert.deberardinis@dc.gov Case 1:16-cv-03364-ELH Document 18 Filed 01/17/17 Page 2 of 11 3 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND NEAL SUTTON, ) ) Plaintiff, ) ) v. ) Case No. 1:16-cv-03364 (ELH) ) SUSAN K. BILLINGS et al., ) ) Defendants. ) ____________________________________) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DISTRICT OF COLUMBIA’S MOTION TO DISMISS THE AMENDED COMPLAINT Defendant District of Columbia through counsel, submits the following memorandum of points and authorities in support of its motion to dismiss the amended complaint for failure to state a claim upon which relief can be granted. The Allegations of the Amended Complaint Most of Plaintiff’s 20-page complaint is taken up by his myriad grievances with his former spouse Susan Billings and various members of the Anne Arundel County Police Department. As to the District of Columbia, Plaintiff alleges that Fire Chief Gregory Dean sent a notice of the proposed suspension of Plaintiff from his employment with the District of Columbia Fire and Emergency Services Department (DC FEMS) on June 29, 2015. Amend. Compl. ¶ 33. Plaintiff further alleges that the notice was sent to the wrong address and as a result he was not afforded an opportunity to contest the suspension which ultimately occurred. Amend. Compl. ¶ ¶ 33-36. Although Plaintiff fails to identify his theory of liability as to these allegations, as can best be gleaned from the amended complaint, he claims a violation of his Case 1:16-cv-03364-ELH Document 18 Filed 01/17/17 Page 3 of 11 4 procedural due process rights under the Fifth Amendment, pursuant to 42 U.S.C. § 1983. 2 See Amend. Compl. ¶ ¶ 35, 40, 41. Plaintiff further alleges as to the District of Columbia that in the fall of 2012, FEMS Chief Michael Donlon told Plaintiff that “he should lose his wife or lose his job.” Amend. Compl. ¶ 37. Plaintiff alleges that this statement caused him to suffer employment discrimination in violation of the District of Columbia Human Rights Act, D.C. Code § 2- 1401.11(a) & (b), and the American with Disabilities Act, 42 U.S.C. § 12131, et seq., STANDARDS OF REVIEW To survive a motion to dismiss for failure to state a claim upon which relief can be granted, a plaintiff’s “[f]actual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555 (2007). The Supreme Court has recently set forth a “two-pronged approach” that a trial court should utilize when ruling on a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While a trial court generally must consider a plaintiff’s factual allegations as true, the court should first “identify pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Id. Thus, the basic pleading standards “demand more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (citing Twombly, 550 U.S. at 555). Once the court has determined that the plaintiff has asserted “well-pleaded factual 2 As to the District of Columbia, it is the Fifth Amendment rather than the Fourteenth Amendment which provides protection for due process rights. See Bolling v. Sharpe, 347 U.S. 497, 499 (1954). Case 1:16-cv-03364-ELH Document 18 Filed 01/17/17 Page 4 of 11 5 allegations,” it “should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id. The Court defined “plausible” as follows: 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. The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to relief. Id. In other words, a plaintiff’s factual allegations must allow a court to draw a reasonable inference that the defendant is liable for the misconduct alleged, if the factual allegations are proven true. See Matrixx Industries, Inc. v. Siracusano, 563 U.S. 27, 45-46 (2011). ARGUMENT The Due Process Claim Against the District of Columbia should be Dismissed. The amended complaint is devoid of factual allegations that if proven true would entitle the plaintiff to relief as to his due process claim against the District of Columbia.. As a threshold matter, municipal liability under Section 1983 is severely limited. See Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 694 (1978). A Section 1983 plaintiff must identify a municipal policy, custom, or practice that caused the plaintiff's alleged constitutional injury. Board of the County Commissioners of Bryan County v. Brown, 520 U.S. 397, 403 (1997). As explained in Monell, "a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom ... inflicts the injury that the government as an entity is responsible under § 1983." 436 U.S. at 694. The Supreme Court has further instructed that "at the very least there must be an affirmative link between the policy and the particular constitutional violation alleged." Case 1:16-cv-03364-ELH Document 18 Filed 01/17/17 Page 5 of 11 6 City of Oklahoma City v. Tuttle, 471 U.S. 808, 824 (1985). The municipal policy, practice, or custom must be the "moving force" behind the alleged constitutional injury. See Monell, 436 U.S. 658. Section 1983 liability is not imposed where the municipality merely employs an alleged tortfeasor, see id., or "when the municipality was not itself at fault." City of Oklahoma, 471 U.S. at 818 (emphasis added). Here, Plaintiff has failed to make any allegations in his complaint regarding the existence of a policy, custom, or practice on the part of the District of Columbia and therefore he has failed to plead a viable Monell claim. See Semple v. City of Moundsville, 195 F.3d 708, 712 (4th Cir. 1999). Consequently, Plaintiff’s due process claim against the District should be dismissed. Moreover, “the fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’” Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965). The requirement to show the lack of an opportunity to be heard is a fundamental element of a due process claim. McManus v. District of Columbia, 530 F.Supp. 2d 46, 73 (D.D.C. 2009) (procedural due process claim dismissed where employee fails to identify the process of which he was allegedly deprived). “Unless state law fails to afford [an employee] adequate process, he has no federal constitutional claim to begin with.” Pitts v. Bd. of Educ., 869 F.2d 555, 557 (10th Cir. 1989); see, e.g., Lee v. Regents of Univ. of California, 221 Fed. Appx. 711, 714 (10th Cir. 2007) (employee who “never requested a post-termination hearing” “waived any challenge to the fairness of . . . post- termination hearing procedures”); Riggins v. Bd. of Regents, 790 F.2d 707, 712 (8th Cir. 1986) (employee who “chose not to file a grievance . . . waived any claim that the grievance procedure did not afford her the process she was due”); Correa v. Nampa School Dist., 645 F.2d 814, 816- Case 1:16-cv-03364-ELH Document 18 Filed 01/17/17 Page 6 of 11 7 17 (9th Cir. 1981) (employee who “knowingly and voluntarily chose to forego the [school district’s] administrative procedures and instead pursued a claim through the Office of Civil Rights” waived any “claim for denial of procedural rights”). Here, Plaintiff could have ultimately appealed his suspension after it occurred on the grounds that he was not provided notice. The District of Columbia, the Comprehensive Merit Personnel Act (CMPA). D.C. Code § 1-601.1 et seq., creates a mechanism for addressing virtually every conceivable personnel issue among the District, its employees, and their unions. See Thompson v. District of Columbia, 593 A.2d 621 (D.C. 1991) (passim), cert. denied 502 U.S. 942 (1991). Procedurally, the CMPA provides a comprehensive system of administrative and judicial review of personnel actions and grievances -- by the District of Columbia Office of Employee Appeals, or under a union contract subject to the jurisdiction of the District's Public Employee Relations Board ("PERB"), followed by a review in the Superior Court. D.C. Code §1-601.1 et seq. Given the procedural due process protection provided by the CMPA, plaintiff cannot be heard to complain that he has been denied an opportunity to be heard in response to his suspension. Consequently, as alternative grounds for dismissal, Plaintiff’s Fifth Amendment procedural due process claim should be dismissed for failure to exhaust his administrative remedies. Plaintiff’s ADA Claim should be Dismissed Plaintiff cannot prevail on his ADA claim because there is no indication that he filed a complaint with the EEOC regarding the alleged discrimination, nor has plaintiff alleged facts needed to establish such a claim. The ADA incorporates the “powers, remedies, and procedures” of Title VII, including the limitations period set forth in 42 U.S.C. § 2000e. See 542 U.S.C. § 12117(a); see also Stewart v. District of Columbia, No. 04–cv–1444, 2006 WL 626921, at *3 Case 1:16-cv-03364-ELH Document 18 Filed 01/17/17 Page 7 of 11 8 (D.D.C. Mar. 12, 2006) (noting that the ADA incorporates the procedures and statute of limitations set out in Title VII claims). Thus, to maintain a cause of action under the ADA a plaintiff must first exhaust administrative remedies by filing a claim with the EEOC and then obtain a Notice of Right to Sue from the agency. Marshall v. Fed. Express Corp., 130 F.3d 1095, 1098 (D.C.Cir.1997) (“Before bringing suit in federal court, ADA plaintiffs, like those under Title VII, must exhaust their administrative remedies by filing an EEOC charge and giving that agency a chance to act on it.”); see also 42 U.S.C. §§ 2000e–5(e)(1), (f)(1). Here, Plaintiff has not alleged that he has exhausted his ADA administrative remedies and as a result his ADA claim should be dismissed. Moreover, Plaintiff has failed to allege a claim under the ADA. In order to make out a prima facie case of an ADA violation in the work place, a plaintiff must show: (1) that he was an individual who had a disability within the meaning of the statute;3 (2) that the employer had notice of the disability; (3) that he was “qualified” for the position, that is, he could perform the essential functions of the position with reasonable accommodation;4 and (4) that the employer refused to make such reasonable accommodations. Id. Plaintiff’s amended complaint does not even remotely make allegations that would plausibly entitle him to relief pursuant to the ADA. Because Plaintiff has failed to allege any of the elements of a prima facie case of an ADA violation, the Court should dismiss this claim. Plaintiff’s D.C. Human Rights Act Claim should be Dismissed Because He does not Allege an Adverse Employment Action 3 The ADA defines a disability as “a physical or mental impairment that substantially limits one or more major life activities.” 42 § 12102(1)(A); Kennedy v. Gray, 83 F. Supp. 3d 385, 391–92 (D.D.C.), reconsideration denied sub nom. Kennedy v. D.C., 145 F. Supp. 3d 46 (D.D.C. 2015), appeal dismissed sub nom. Kennedy v. Bowser, 843 F.3d 529 (D.C. Cir. 2016). 4 The ADA defines “qualified individual” as an “individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8). Case 1:16-cv-03364-ELH Document 18 Filed 01/17/17 Page 8 of 11 9 In order to state a prima facie case of employment discrimination under the DCHRA, a plaintiff must establish: (1) that he is a member of a protected class; (2) that she suffered an adverse employment action and (3) that the unfavorable action gives rise to an inference of discrimination. Brown v. Brody, 199 F.3d 446, 452 (D.C.Cir.1999). To prevail, therefore, a plaintiff must demonstrate that her employer took some adverse action because of his membership in the statutorily protected group. See Forkkio v. Powell, 306 F.3d 1127, 1130–31 (D.C.Cir.2002). An adverse employment action must have had “materially adverse consequences affecting the terms, conditions, or privileges of employment or her future employment opportunities.” Brody, 199 F.3d at 457. This means that actions imposing purely subjective harms, such as dissatisfaction or humiliation, are not adverse. See Forkkio, 306 F.3d at 1130–31; see also Brody, 199 F.3d at 457 (“Mere idiosyncrasies of personal preference are not sufficient to create an injury.”); Childers v. Slater, 44 F.Supp.2d 8, 19 (D.D.C.1999) (“[C]onduct that sporadically wounds or offends but does not hinder an employee’s performance does not rise to the level of adverse action .”), modified on reconsideration, 197 F.R.D. 185 (D.D.C.2000); Jones v. Billington, 12 F.Supp.2d 1, 13 (D.D.C.1997). Here, Plaintiff has not alleged that he suffered an adverse employment action as a result of his marital status . While he references a suspension relative to his due process claim, he offers no factual allegation linking that or any adverse personnel action to his membership in a class proteceted under the DCHRA. Therefore his DCHRA claim should be dismissed for failure to state a claim upon which relief can be granted. CONCLUSION Case 1:16-cv-03364-ELH Document 18 Filed 01/17/17 Page 9 of 11 10 For all of the above stated reasons, the amended complaint in this matter should be dismissed with prejudice as to the District of Columbia. DATE: January 17, 2017 Respectfully submitted KARL A. RACINE Attorney General for the District of Columbia GEORGE C. VALENTINE Deputy Attorney General Civil Litigation Division /s/Michael K Addo MICHAEL K. ADDO Chief, Civil Litigation Division, Section IV /s/ Robert A. DeBerardinis, Jr. ROBERT A. DEBERARDINIS, JR. [#05533] Assistant Attorney General 441 Fourth Street, N.W. Sixth Floor South Washington, DC 20001 (202) 724-6642; (202) 741-8895 (fax) robert.deberardinis@dc.go Case 1:16-cv-03364-ELH Document 18 Filed 01/17/17 Page 10 of 11 11 Case 1:16-cv-03364-ELH Document 18 Filed 01/17/17 Page 11 of 11 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND NEAL SUTTON, ) ) Plaintiff, ) ) v. ) Case No. 1:16-cv-03364 (ELH) ) SUSAN K. BILLINGS et al., ) ) Defendants. ) ____________________________________) ORDER Upon the motion of Defendant District of Columbia to dismiss Plaintiff’s amended complaint, the opposition of Plaintiff and for good cause shown, it is this ____ day of _____, 2017, ORDERED that the motion is granted and it is further ORDERED that the amended complaint is dismissed with prejudice, as to Defendant District of Columbia. _______________________ Ellen L. Hollander United States District Judge. Case 1:16-cv-03364-ELH Document 18-1 Filed 01/17/17 Page 1 of 1