Sutton v. Billings, et al

MOTION to Dismiss , MOTION to Dismiss for Failure to State a Claim

D. Md.December 7, 2016

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. ) ____________________________________) DEFENDANTS MICHAEL DONLON, GREGORY M. DEAN AND DISTRICT OF COLUMBIA FIRE AND EMERGENCY MEDICAL SERVICES DEPARTMENT, MOTION TO DISMISS THE COMPLAINT Defendants District of Columbia Fire and Emergency Services Department, Michael Donlon and Gregory Dean (collectively District of Columbia Defendants) through counsel, move the Court pursuant to Fed. R. Civ. P. 12(b)(5) and 12(b)(6) to dismiss the complaint as to them.1 In support of their motion the District of Columbia Defendants rely upon the attached memorandum of points and authorities DATE: December 7, 2016 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. 1 Plaintiff in this action has also sued the Anne Arundel County Police Department and a number of its employees. Case 1:16-cv-03364-ELH Document 10 Filed 12/07/16 Page 1 of 12 Sixth Floor South Washington, DC 20001 (202) 724-6642; (202) 741-8895 (fax) robert.deberardinis@dc.gov Case 1:16-cv-03364-ELH Document 10 Filed 12/07/16 Page 2 of 12 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 DEFENDANTS MICHAEL DONLON, GREGORY M. DEAN AND DISTRICT OF COLUMBIA FIRE AND EMERGENCY MEDICAL SERVICES DEPARTMENT MOTION TO DISMISS THE COMPLAINT Defendants District of Columbia Fire and Emergency Services Department (DCFEMS), Michael Donlon and Gregory Dean (collectively District of Columbia Defendants) through counsel, submit the following memorandum of points and authorities in support of their motion to dismiss the complaint. CASE BACKGROUND Procedural History Plaintiff filed his complaint in this matter on October 8, 2016. Attached to the complaint was a On November 7, 2016, Plaintiff’s counsel filed what he termed a “Certificate of Service” in which he stated that “I mailed a Summons in a Civil Action regarding the above-captioned case via First Class U.S. mail to each of the following.” Counsel’s subsequent listing of Defendants included the three District of Columbia Defendants. The Certificate contained no other representations. The Allegations of the Complaint Case 1:16-cv-03364-ELH Document 10 Filed 12/07/16 Page 3 of 12 Most of Plaintiff’s 20-page complaint is taken up by Plaintiff’s myriad grievances with his former spouse and various members of the Anne Arundel County Police Department who are also defendants in this action. As to the District of Columbia Defendants, Plaintiff alleges that Defendant Gregory Dean sent a notice of the proposed suspension of Plaintiff from his employment with DC FEMS on June 29, 2015. 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. Compl. ¶ ¶ 33-36. Although Plaintiff fails to identify his theory of liability as to these allegations, as can best be gleaned from the Complaint, he is claiming a violation of his procedural due process rights. See Compl. ¶ ¶ 35, 40, 41. Plaintiff further alleges that in the Fall of 2012, Defendant Fire Chief Michael Donlon told Plaintiff that “he should lose his wife or lose his job.” 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 Rule 12(b)(5) Under Fed.R.Civ.P. 12(b)(5), a defendant may move to dismiss for insufficient service of process. If service is contested, the “plaintiff bears the burden of establishing [its] validity ... pursuant to Rule 4.” O’Meara v. Waters, 464 F.Supp.2d 474, 476 (D.Md.2006). An individual may also be served by “following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district is located or where service is made.” Fed.R.Civ.P. 4(e)(1). Generally, when service of process gives the defendant actual notice of the pending Case 1:16-cv-03364-ELH Document 10 Filed 12/07/16 Page 4 of 12 action, the courts may construe Rule 4 liberally.” O’Meara, 464 F.Supp.2d at 476. But, the “plain requirements for the means of effecting service may not be ignored.” Id. Although insufficient service of process does not necessarily warrant dismissal, the court may dismiss the complaint for failure to comply with Rule 4 or quash the service, thereby permitting the plaintiff to attempt to properly serve the defendant. See Vorhees v. Fischer & Krecke, 697 F.2d 574, 575- 76 (4th Cir.1983). Rule 12(b)(6) To survive a motion to dismiss, 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 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 Case 1:16-cv-03364-ELH Document 10 Filed 12/07/16 Page 5 of 12 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 DCFEMS is Non Sui Juris and Should Be Dismissed From This Case. “[A] subordinate governmental agency may not sue or be sued in the absence of a statutory provision to that effect.” Trifax Corp. v. Dist. of Columbia, 53 F.Supp.2d 20, 26 (D.D.C.1999) aff'd, 314 F.3d 641 (D.C.Cir.2003) (citing Blackmar v. Guerre, 342 U.S. 512, 72 S.Ct. 410, 96 L.Ed. 534 (1952)). Courts “have consistently held that, in the absence of a statutory provision providing otherwise, bodies within the District of Columbia government are not suable as separate entities.” Hinton v. Metropolitan Police Dept., Fifth Dist., 726 F.Supp. 875, 875 (D.D.C.1989); see also Trifax, 53 F.Supp.2d at 26 (the Office of the Inspector General, District of Columbia Department of Health, District of Columbia Department of Human Services, and Department of Administrative Services are non sui juris ); Roberson v. Dist. of Columbia Bd. of Higher Educ., 359 A.2d 28, 31, n. 4 (D.C.1976) (holding the Board of Education is not a suable entity); Miller v. Spencer, 330 A.2d 250, 251, n. 1 (D.C. 1974) (holding the Department of Sanitation is not a suable entity). The District of Columbia Fire and Emergency Services Department is a subordinate governmental agency within the District of Columbia government and as a result is non sui juris. See Ray v. District of Columbia, 535 A.2d 868, 869, n.2 (D.C. 1987) As a result, DCFEMS should Case 1:16-cv-03364-ELH Document 10 Filed 12/07/16 Page 6 of 12 be dismissed from this action. Plaintiff has Failed to Properly Serve Defendants Donlon and Dean Federal Civil Rule 4(d)(1) provides that personal service shall be made [u]pon an individual ... by delivering a copy of the summons and of the complaint to him personally or by leaving copies thereof at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process. (Emphasis added). Service of process at a defendant’s place of business does not satisfy the requirements of Rule 4(d)(1). See Gipson v. Township of Bass River, 82 F.R.D. 122, 125 (D.N.J.1979) (“leaving process at defendants’ place of employment does not qualify under the dwelling house or usual place of abode method”) Plaintiff has not satisfied any of these provisions and as a result the complaint should be dismissed as to Defendants Dolan and Dean The Due Process Claim Against Defendant Dean Should be Dismissed Plaintiff alleges that he was denied an opportunity to contest his suspension because the notice of the proposed suspension was mailed to the wrong address. The complaint is devoid of facts that if proven true would entitle the plaintiffs to relief as to this claim. “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 Case 1:16-cv-03364-ELH Document 10 Filed 12/07/16 Page 7 of 12 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, 816-17 (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”). Plaintiff here 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, plaintiffs cannot be heard to complain that he has been denied an opportunity to be heard in response to his suspension. Consequently, Plaintiff’s Fifth Amendment procedural due process claim should be dismissed. Case 1:16-cv-03364-ELH Document 10 Filed 12/07/16 Page 8 of 12 Plaintiff’s ADA Claim should be Dismissed for Failure to Exhaust Plaintiff cannot prevail on his ADA claim because there is no indication that he filed a complaint with the EEOC regarding the alleged discrimination. 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 (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. Plaintiff ‘s ADA Claim should be Dismissed for Failure to State a Claim for Relief. Even assuming arguendo that Plaintiff properly exhausted his ADA claim the District is nonetheless entitled to summary judgment as to Plaintiff’s ADA claim whether brought pursuant to Title I of the ADA or Title II of the ADA). In order to make out a prima facie case for failure to reasonably accommodate a disability (Title I) a plaintiff must show: (1) that she was an individual who had a disability within the meaning of the statute; (2) that the employer had notice of the disability; (3) that she was “qualified” for the position, that is, she could perform the essential functions of the position with Case 1:16-cv-03364-ELH Document 10 Filed 12/07/16 Page 9 of 12 reasonable accommodation; and (4) that the employer refused to make such reasonable accommodations. Id. The ADA defines a “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). To prove a violation of Title II, a party must establish: (1) that he is a ‘qualified individual’ with a disability; (2) that he was excluded from participation in a public entity's services, programs or activities or was otherwise discriminated against by a public entity; and (3) that such exclusion or discrimination was due to his disability.” Mary Jo C. v. N.Y. State & Local Ret. Sys., 707 F.3d 144, 153 (2d Cir.2013). To make out a Title II ADA claim, a qualified individual with a disability must at least allege the denial of “meaningful access to the benefit” in question. Alexander v. Choate, 469 U.S. 287, 301, (1985). Plaintiff’s complaint is devoid of factual allegations that would plausibly entitle him to relief pursuant to Title I or Title II and as a result his ADA claim should be dismissed. Plaintiff’s DC Human Rights Act Claims should be Dismissed Because He does not Allege an Adverse Employment Action 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 Case 1:16-cv-03364-ELH Document 10 Filed 12/07/16 Page 10 of 12 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 and his DCHRA claim should be dismissed. CONCLUSION For all of the above stated reasons, the complaint in this matter should be dismissed with prejudice as to the District of Columbia Defendants. Respectfully submitted DATE: December 7, 2016 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 (202) 724-6642; (202) 741-8895 (fax) robert.deberardinis@dc.gov Case 1:16-cv-03364-ELH Document 10 Filed 12/07/16 Page 11 of 12 Case 1:16-cv-03364-ELH Document 10 Filed 12/07/16 Page 12 of 12 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 Defendants District of Columbia Fire and Emergency Services Department, Michael Donlon and Gregory Dean to dismiss Plaintiffs complaint, the opposition of Plaintiff and for good cause shown, it is this ____ day of _____, 2017, ORDERED that Defendants’ motion is granted and it is further ORDERED that the complaint as to Defendants District of Columbia Fire and Emergency Services Department, Michael Donlon and Gregory Dean is dismissed with prejudice. _______________________ Ellen L. Hollander United States District Judge. 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