Case Information
*1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _______________________________
)
BRANDY MCGINNIS, )
)
Plaintiff, )
) v. ) Civil Action No. 13-1254 (EGS) )
DISTRICT OF COLUMBIA, et al., )
)
Defendants. )
_______________________________)
MEMORANDUM OPINION
Brandy McGinnis brings this action against the District of Columbia (“the District”) and four employees of the Metropolitan Police Department (“the MPD”). Ms. McGinnis claims that her constitutionally protected liberty interest was violated when she was falsely accused of having lied on her application to the MPD and terminated from employment. Ms. McGinnis also brings claims for intentional infliction of emotional distress and defamation. Pending before the Court is defendants’ motion to dismiss plaintiff’s liberty-interest claims. Upon consideration of the motion, the response and reply thereto, the applicable law, and the entire record, the Court DENIES defendants’ motion. I. Background
A. Ms. McGinnis Becomes a Police Officer in Florida. Ms. McGinnis is a former police officer with the Aventura Police Department in Aventura, Florida. See First Am. Compl., *2 ECF No. 10 ¶ 2. She was “a well-respected and decorated police officer” during her time in Aventura, and “received several awards, promotions, and recognitions” there. Id. ¶¶ 2, 26.
Prior to becoming a police officer in Aventura, Ms. McGinnis attended the Miami-Dade School of Justice for training. See id. ¶ 3. During training, Ms. MсGinnis “discovered that she has a medical condition involving a severe allergy to” pepper spray (which is also known as oleoresin capsicum or “OC” spray). Id. ¶¶ 3, 27. This arose when Ms. McGinnis “suffered an unusually harsh reaction to [OC] spray.” Id. ¶ 28. Ms. McGinnis had been “sprayed directly in the eyes,” and she “suffered permanent damage to her right eye which requires her to wear eyeglasses at night and while reading.” Id. ¶¶ 3–4. She was ordered by a supervisor to seek medical treatment and was ultimately diagnosed with “both an allergy and a hypersensitivity to OC spray.” Id. ¶¶ 28–29. This allergy “does not prevent her from carrying or even using OC spray,” so long as she “avoid[s] a direct spray to the eyes.” ¶ 30. Accordingly, the incident had no effect on her training, and she graduated successfully. See id. ¶ 4.
B. Ms. McGinnis Applies to Become a Police Officer in the District of Columbia.
On December 5, 2011, Ms. McGinnis filled out an application for employment with the MPD. See id. ¶ 34. On this application, *3 Ms. McGinnis “disclosed the OC spray allergy, but noted that she is certified to use and carry OC spray.” Id. On December 14, 2011, she interviewed with a background investigаtor. See id. ¶ 35. Ms. McGinnis informed the investigator of her allergy and he “indicated that this would not be a problem.” Id.
The next step in the application process was a physical examination, which Ms. McGinnis took on January 17, 2012. See id. ¶ 36. During the examination, she completed “a medical history form that inquired about drug and sinus allergies, but not food or other types of allergies,” checked a box which indicated that she had an eye injury, and “in the space provided . . . to explain . . . disclosed that she suffered an eye injury from OC spray in 2007.” Id. During the physical examination, Ms. McGinnis also informed the doctor “that she had an allergy to OC spray . . . that there was no specific place for her to make the OC spray allergy disclosure on the medical history form, but that she disclosed the eye injury she suffered [as a result of OC spray].” ¶ 37. The doctor informed her that “this would not be a problem since she disclosed the allergy to [the investigator] and was already certified,” and indicated that “he would make a note of it in Ms. McGinnis’s file.” Id.
C. Ms. McGinnis Begins Training at the MPD Academy. Ms. McGinnis was hired by the MPD on January 25, 2012. See id.
¶ 38. On January 31, 2012, she began training at the MPD Academy *4 “where she immediately excelled and was made Class Leader on the second day of training.” Id. ¶ 5. Her allergy was discussed soon after training began, when Ms. McGinnis “advised [Sergeant] Young and Class Officer Kelwin Ford . . . that she was allergic to OC spray.” Id. ¶ 41. When Class Officer Ford expressed his belief that everyone is allergic to OC spray, Ms. McGinnis explained that “although everyone suffers irritation from OC spray, people with an allergy suffer much more significant and longer-lasting effects following a direct spray to the eyes.” Id. Class Officer Ford indicated “that they would deal with the issue when the time came for OC spray training.” Id.
Ms. McGinnis reminded Sergeant Young of her OC spray allergy in May 2012, and again in June 2012, at which point Sergeant Young told her “to get something in writing.” ¶¶ 43–44. Accordingly, on July 17, 2012, Ms. McGinnis provided him a letter from Major William Washa of the Aventura Police Department, which indicated that Major Washa had witnessed Ms. McGinnis’s reaction to OC spray. See id. ¶ 45. Sergeant Young said that he would give the letter to the OC spray instructor, Lieutenant Ashley Rosenthal, and “advised that it should not be a рroblem.” Id.
Ms. McGinnis alleges that she expected to participate fully in the MPD’s OC spray training because “according to the other MPD officers who were certified to conduct the . . . training . . . *5 they were . . . trained . . . to spray recruits across the forehead rather than directly in the eyes.” Id. ¶ 47. Ms. McGinnis alleges that Lieutenant Rosenthal was also trained to spray across the forehead, “but because MPD apparently lacks a clear policy for OC spray training and because Lt. Rosenthal evidently believes this method is not effective enough, Lt. Rosenthal has implemented her own custom . . . of spraying recruits . . . across the eyes.” Id. ¶ 48.
D. Ms. McGinnis is Placed on Limited Duty.
On July 20, 2012, Ms. McGinnis was told to go to the medical clinic to be exempted from OC spray training. See id. ¶ 49. Ms. McGinnis protested “that she was not asking to be exempt, she was just requesting that she not be sprayed directly in the eyes,” id. , but Lieutenant Rosenthal insisted she meet with an MPD doctor. See id. ¶ 50. That doctor “placed Ms. McGinnis on limited duty and advised that [she] would need to see an allergy specialist.” Id. When Ms. McGinnis next reported to the MPD Academy, two class officers “told her to remove her uniform and put on civilian attire because she was on limited duty.” Id. ¶ 53. Ms. McGinnis’s responsibilities as Class Leader were also reassigned. See id. Later, Ms. McGinnis attended her appointment with the allergy specialist and the doctor agreed to provide the MPD with a letter “indicating that Ms. McGinnis has an ‘extra sensitivity to pepper spray.’” ¶¶ 55–56.
The following week, Ms. McGinnis went to the MPD clinic as directed, and “was advised that she could not be exempted from the OC spray training.” Id. ¶ 57. Her doctor called the Medical Services Director, Gregory Stroud, “advised Ms. McGinnis that she was still on limited duty,” and directed Ms. McGinnis to report back to the clinic on August 16, 2012. See id.
Ms. McGinnis continued to report to the Academy. On August 3, 2012, she encountered Inspector Alisa Petty, the individual in command of the Academy, who asked her why she was wearing civilian clothing. See id. ¶ 60. After Ms. McGinnis explained, Inspector Petty “indicated this was the first she had heard of the matter.” Id. Five days later, when Ms. McGinnis’s class underwent OC spray training—and were sprayed “directly across the eyes,” id. ¶ 62—Inspector Petty advised Ms. McGinnis that “she was ‘not doomed, just delayed.’” Id. ¶ 63. Although Ms. McGinnis was permitted to be present during the OC spray training, Lieutenant Rosenthal later told her to leave the area “due to her allergy.” See id. ¶ 64.
Over the next week, Ms. McGinnis continued to participate in training, had her photograph taken to be used in the graduation program, and took her final written exam, which she “passed with an 85%, one of the highest scores in the class.” ¶¶ 65–68. On August 16, 2012, she attended an appointment at the MPD clinic, was “advised . . . that she would remain on limited *7 duty,” and was given additional documents for her allergy specialist to complete, including a request “to clarify whether Ms. McGinnis has an allergy to OC spray” and a request for a determination “whether Ms. McGinnis is ‘capable of performing the full range of duties required of a police officer.’” Id. ¶ 70. Ms. McGinnis then spoke with Medical Services Director Stroud, who informed her “that all officers are required to be OC spray certified” and “that, had another MPD officer not cаlled him on Ms. McGinnis’s behalf, he would have fired her already.” Id. ¶ 71. Director Stroud “further advised that once Ms. McGinnis returned to full duty, she should ‘suck it up’ and take the direct spray across the eyes.” Id. ¶ 72.
E. Ms. McGinnis is Terminated from Employment with the MPD. On August 17, 2012, Sergeants Young and Butler drove Ms.
McGinnis to the MPD headquarters. See id. ¶ 75. Ms. McGinnis asked Sergeant Young if she was being fired and he said that she was; when she asked why, Sergeant Young indicated that he did not know. See id. Upon arrival, Sergeant George Bernard gave Ms. McGinnis a letter and asked her “if she knew why she was being terminated.” Id. ¶¶ 76–77. When Ms. McGinnis responded that she did not, Sergeant Bernard said that it was “because she lied to the department about a medical condition.” Id. ¶ 77. The MPD, Sergeant Bernard indicated, “was claiming it never knew about her condition.” ¶ 78.
Sergeant Bernard exited the room and left behind paperwork that Sergeants Young and Butler began to read. See id. ¶ 80. Ms. McGinnis also read the materials, which included “the medical history form on which Ms. McGinnis disclosed her 2007 OC spray injury” as well as an August 14, 2012 memorandum from the MPD’s Director of Human Resources, Diana Haines-Walton, to the Chief of Police (“the Haines-Walton Memo”). See id. ¶ 81. The Memo stated that Ms. McGinnis: (1) “‘failed tо disclose her severe allergy to OC spray during the recruitment process’”; (2) “‘deliberately and consciously made false statements to the Department during the recruitment process’”; (3) “‘blatant[ly] fail[ed] to truthfully and completely disclose information during the recruitment process’”; (4) “did not disclose the allergy during her physical examination”; and (5) “‘answered in the negative’ on two medical certifications indicating that she did not have any allergy to OC spray.” Id. ¶ 82 (alterations in original). In addition to Sergeants Young and Butler, Ms. McGinnis alleges that “[o]thers in the MPD and at the Academy have become aware of the defamatory rationale for [her] termination despite their having no legitimate business-related reason to know” and that “[t]he defamatory Haines-Walton Memorandum remains in [her] personnel file which is potentially available to prospective employers or other government officials.” ¶¶ 102–03.
The full story of Ms. McGinnis’s termination remains unclear, but she alleges that defendants Rosenthal, Petty, Stroud, and Haines-Waltоn “conspired to terminate [her] under a false and defamatory pretext” and that they “ignored clear evidence that Ms. McGinnis was being truthful about her prior disclosures of her medical condition.” Id. ¶¶ 93, 95. Ms. Haines-Walton authored the allegedly defamatory memo, while defendants Rosenthal, Petty, and Stroud allegedly “encouraged the District to terminate [her] based on this defamatory pretext.” Id. ¶¶ 11, 81–82.
Ms. McGinnis was not provided with notice of the charges or an opportunity to present her side of the story. See id. ¶ 100. This, she alleges, is because the “MPD and the District apparently either have no policy providing for such notice and opportunity to be heard or have a policy, custom, usage or practice of not providing such notice and opportunity when an employee is being terminated for reasons that would affect his or her reputation and/or stigmatize him or her.” Id. ¶ 122.
After her termination from the MPD, Ms. McGinnis “applied for numerous positions in law enforcement, but has not been hired by any law enforcemеnt agency.” ¶ 107. [1] She attributes this to *10 the fact that, “[e]ach time she applies for a new position in law enforcement, [she] is required to truthfully describe her employment history and the reasons for her separation from previous employers, including the defamatory rationale for her termination by MPD.” ¶ 105.
F. Procedural History
On August 15, 2013, Ms. McGinnis filed this lawsuit against the District of Columbia, Lieutenant Ashley Rosenthal, Inspector Alisa Petty, Lieutenant Gregory Stroud, and Diana Haines-Walton. She alleged violations of her Fifth Amendment rights against the individual defendants and the District, as well as claims for intentional infliction of emotional distress and defamation against the District. See Compl. ¶¶ 88–154. After the defendants moved to dismiss the federal claims on the grounds that plaintiff lacked a protected property interest in continued employment, Defs.’ First Mot. to Dismiss, ECF No. 6, plaintiff filed a consent motion for leave to file an amended complaint to correct her complaint to allege a violation of her liberty interest. See Mot. for Leave, ECF No. 9; First Am. Compl., ECF No. 10.
On January 17, 2014, the defendants moved to dismiss
plaintiff’s Fifth Amendment claims or, in the alternаtive, for
motion to dismiss.”
Arbitraje Casa de Cambio, S.A. de C.V. v.
U.S. Postal Serv.
,
summary judgment on those claims.
See
Defs.’ Mot. to Dismiss
(“Mot.”), ECF No. 13. Plaintiff filed her opposition brief on
February 18, 2014 and objected to the defendants’ request for
summary judgment as premature under Federal Rule of Civil
Procedure 56(d).
See
Opp. to Mot. (“Opp.”), ECF No. 15; Rule
56(d) Aff., ECF No. 15-1. The defendants filed their reply
brief, which indicated that they no longer request summary
judgment, on March 10, 2014.
See
Reply in Supp. of Mot.
(“Reply”), ECF No. 18. In July 2014, at the Court’s request, the
parties filed supplemental briefs addressing the D.C. Circuit’s
decision in
McCormick v. District of Columbia
,
II. Standard of Review
A motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) “tests the legal sufficiency of a complaint.”
Browning
v. Clinton
,
When ruling on a Rule 12(b)(6) motion, the Court may consider
“the facts alleged in the complaint, documents attached as
exhibits or incorporated by reference in the complaint, and
matters about which the Court may take judicial notice.”
Gustave-Schmidt v. Chao
,
III. Analysis
The Fifth Amendment provides that “[n]o person shall . . . be deprived of life, liberty, or property without due process of law.” U.S. Const. Amend. V. Ms. McGinnis asserts that the defendants’ actions implicate the liberty interest protected by that Amendment because they wrongly terminated her for lying on her job application and provided her neither notice nor an opportunity to contest the allegations.
As a general rule, “persons whose future employment prospects
have been impaired by government defamation ‘lack . . . any
constitutional protection for the interest in reputation.’”
Trifax Corp. v. District of Columbia
,
The reputation-plus theory is implicated when the governmеnt
makes a “charge against [the employee] that might seriously
damage his standing and associations in the community,”
Roth
,
Defendants argue that plaintiff’s Fifth Amendment claims must be dismissed because she has failed to state a claim under either theory. The individual defendants also argue that Ms. McGinnis failed to allege facts connecting defendants Rosenthal, Petty, and Stroud to the constitutional violation and that defendant Haines-Walton is entitled to qualified immunity. Finally, the District argues that plaintiff’s Fifth Amendment claim against it should be dismissed for lack of a municipal policy or custom connecting the District to any wrongdoing. The Court first addresses plaintiff’s stigma theory and the individual defendants’ arguments that they cannot be held liable under that theory. Next, the Court addresses plaintiff’s reputation-plus theory and the individual defendants’ arguments against liability under that theory. Finally, the Court *15 addresses the District’s argument that it cannot be liable for any constitutional violation because no municipal policy or custom was the moving force behind the alleged violations.
A. Ms. McGinnis’s Stigma Theory Against the Individual Defendants
A court faced with a claim for qualified immunity must
analyze: “(1) ‘whether a constitutional right would have been
violated on the facts alleged,’ and (2) ‘whether the right was
clearly established’ at the time of the violation.”
Shaw v.
District of Columbia
,
1. Ms. McGinnis Alleged a Violation of Her Fifth Amendment Right Under the Stigma Theory.
The stigma theory “provides a remedy where the terminating employer imposes upon the discharged employee a stigma or other disability that foreclosed the plaintiff’s freedom to take *16 advantage of other employment opportunities.” McCormick , 752 F.3d at 988 (quotation marks and alterations omitted). “[T]he ‘stigma’ claim, unlike the reputation-plus claim, ‘does not depend on official speech’ but on a ‘stigma or disability arising from official action.’” Id. (quoting O’Donnell , 148 F.3d at 1140).
Defendants argue that Ms. McGinnis must allege active
publication by the government of the reasons for her termination
to state a claim under the stigma theory.
See
Mot. at 10–14;
Reply at 5–8. Although defendants argue that the D.C. Circuit’s
decision in
McCormick
supports their argument, Defs.’ Suppl.
Br., ECF No. 21, the oppositе is true. In that case, a
correctional officer who was terminated for assaulting a
handcuffed inmate disputed the results of the investigation that
led to his termination.
See McCormick
,
The D.C. Circuit first noted that Mr. McCormick’s “factual theory is that the appellees took the official act of firing him” and “[h]e cannot obtain other employment in his chosen field, therefore he has suffered stigma[, which] arises from his having to tell prospective employers why he was fired.” at *17 988. The Circuit then stated that “the only official act committed by the defendants is the termination” and “[t]he termination of an at-will employee is not sufficient to establish the deprivation of protected liberty interests.” Id. The Circuit went on to assert that “[t]he Supreme Court in Bishop v. Wood effectively dispose[d] of McCormick’s claims.” Id. (citation omitted).
While these passages appear at first glance to support the
defendants, the Circuit went on to notе that, while
Bishop
may
dispose of a reputation-plus theory in these circumstances, Mr.
McCormick also asserted “in reliance on the stigma theory” an
actionable liberty interest “even though he was an at-will
employee and there was no government publication of derogatory
information about him.” at 989. Indeed, the Circuit
emphasized that “
Bishop v. Wood
does not address this
understanding” and “does not dispose of this theory” and that
prior Circuit precedent regarding the stigma theory “discussed—
not communication by the government—but the plaintiff’s
remaining reasonable job opportunities in the field.”
Id.
(citing
O’Donnell
,
Mr. McCormick, in contrast, cite[d] deposition testimony [from corrections officials] to the effect that he can never again be employed in the corrections field and that therefore, his termination implicates his liberty interest. Although that testimony is not as compelling as Mr. McCormick suggests, it is arguably sufficient to establish a genuine dispute as to a material fact—namely whether the circumstances of the termination had the broad effect of barring him from further employment in his chosen profession. (citations, quotation marks, and alteration omitted).
Defendants’ reading of McCormick , therefore, is incorrect. Affirmative publication by the government is not a necessary element of a stigma claim so long as the plaintiff alleges why the government action has the effect of precluding her from future employment.
To survive a motion to dismiss, then, Ms. McGinnis must show
that her termination “has worked a change in [her] status under
law, either by (a) automatically excluding her from a definite
range of employment opportunities . . . or (b) broadly
precluding her from continuing in her chosen career.”
Kartseva
v. Dep’t of State
,
Alleging broad preclusion is not a mathematical exercise. Ms.
McGinnis need not plead a particular “duration of unemployment
[to] convert her stigma from implausible to plausible.”
Campbell
v. District of Columbia
,
Difficulty obtaining a job in the field, while necessary, is
not sufficient because it “might easily be explained in other
ways.”
Taylor v. Resolution Trust Corp.
,
Ms. McGinnis’s allegations are sufficient to state a claim.
She asserts that she has “applied for numerous positions in law
enforcement, but has not been hired by any law enforcement
agency.” First Am. Compl., ECF No. 10 ¶ 107. Ms. McGinnis
further alleges that the reason for her inability to obtain a
position is her termination: “Each time she applies for a new
position in law enforcement, [she] is required to truthfully
describe her employment history and the reasons for her
separation from previous employers, including the defamatory
rationale for her termination by MPD.” ¶ 105. Although
defendants view this connection as attenuated, it is identical
*21
to the connection recognized by the D.C. Circuit in
McCormick
.
See
Defendants respond that “‘it is doubtful that the silent
actions of a single agency within a single municipal government
can have a sufficiently broad effect to alter an individual’s
legal rights to such a degree as to implicate a liberty
interest.’” Mot. at 12 (quoting
Dave
,
Discovery may reveal that the MPD’s silent actions remain silent, or that plaintiff’s termination poses “nothing more than a competitive disadvantage.” Mot. at 11. At this stage of proceedings, however, the Court must accept Ms. McGinnis’s claim that her termination and the government’s allegations of serious dishonesty must be shared with future employers and that those allegations implicate a core requirement of the law-enforcement profession, such that she cannot obtain further employment in the field. See First Am. Compl., ECF No. 10 ¶¶ 105, 107. Accordingly, Ms. McGinnis has stated a Fifth Amendment claim under the stigma theory. [2]
2. Ms. Haines-Walton is Not Entitled to Qualified Immunity and Each Individual Defendant Participated in the Constitutional Violation.
Having established that Ms. McGinnis alleged a violation of
her Fifth Amendment right, “[w]hat remains is to determine
whether . . . any of the individual defendants can be held
liable . . . under 42 U.S.C. § 1983.”
Elkins v. District of
Columbia
,
Government officials are entitled to qualified immunity
“‘insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known.’”
Butera v. District of Columbia
, 235 F.3d
637, 646 (D.C. Cir. 2001) (quoting
Harlow v. Fitzgerald
, 457
U.S. 800, 818 (1982)). “Clearly established for purposes of
qualified immunity means that the contours of the right must be
sufficiently clear that a reasonable official would understand
what he is doing violates that right.”
Shaw
, 944 F. Supp. 2d at
54 (quotation marks omitted). Put another way, “existing
precedent must have placed the . . . constitutional question
beyond debate.”
Reichle v. Howards
,
Ms. Haines-Walton contends that she is entitled to qualified
immunity. By contrast, defendants Rosenthal, Petty, and Stroud
did not raise qualified immunity, arguing only that Ms. McGinnis
failed to allege facts to support an inference that their “own
individual actions,”
Iqbal
,
a. Haines-Walton
There appears to be no dispute that Ms. Haines-Walton’s “own individual actions,” id. , caused the alleged constitutional violation. She allegedly wrote the defamatory memorandum memorializing the reasons for Ms. McGinnis’s termination and participated in the “conspiracy” to terminate Ms. McGinnis for those reasons. See First Am. Compl., ECF No. 10 ¶¶ 81–82, 93. This is connected to the constitutional harm, which flows from the act of terminating Ms. McGinnis for reasons that must be shared with prospective employers and will preclude her from employment in her field.
Ms. Haines-Walton alleges that she is entitled to qualified
immunity “because a reasonable officer in her position could not
have anticipated that recommending Plaintiff for termination
would implicate liberty interest violations.” Mot. at 16.
Specifically, she claims that she could not have anticipated
*25
violating a constitutional right “because MPD did not make the
reasons . . . public” and any stigma claim “did not arise until
after Plaintiff was terminated.” at 17. Plaintiff responds
that “[t]he ‘contours’ of Ms. McGinnis’s right to her
constitutional liberty interest” were clearly established
because “[t]he well-established and protected right in this case
is the opportunity to be heard before being slandered and
defamed.” Opp. at 23. Plaintiff defines the right at too high a
level of generality, so the Court examines the right at a more
specific level.
See Anderson
,
To begin, it was clearly established that a stigma claim could
arise when a government action broadly precludes an employee
from further employment in her field. In
Kartseva
, the Circuit
made clear that a plaintiff could state such a claim when the
government action “does not have [a]
binding
effect, but
nevertheless has the broad effect of largely precluding [the
plaintiff] from pursuing her chosen career.”
The dispute is whether it was clearly established that a government official could be held liable when the reason for termination was not affirmatively disseminated to the public, but must inevitably be shared with future employers. Although the D.C. Circuit held as much in McCormick , that decision came after the events underlying this case. Nonetheless, McCormick built upon preexisting precedent within this Circuit making clear that a government employee’s constitutional rights can be violated by an action that will broadly preclude her from future employment in her field, even if there is no formal publication.
The Supreme Court’s decision in
Roth
emphasized that a stigma
claim would arise from the government’s
action
“in declining to
re-employ the respondent,” when that action “imposed . . . a
stigma or other disability that foreclosed his freedom to takе
advantage of other employment opportunities.”
Roth
, 408 U.S. at
573. This contrasted with a reputation-plus claim, which would
arise only from government
speech
.
See id.
Later, in
Bishop v.
Wood
, the Supreme Court found that a reputation-plus claim could
not stand where the statement “was not made public,” but did not
address the stigma theory.
In a line of decisions, the D.C. Circuit established that the
stigma theory does not require publication. In
Old Dominion
Dairy Products v. Secretary of Defense
, it found a stigma claim
where the government’s determination that a contractor was
*27
irresponsible and placement of “a written determination of
nonresponsibility” in the contractor’s file would be revealed to
future contracting officers “every time Old Dominion bid for a
contract.”
Any doubt about the viability of a stigma claim in the absence
of publication was resolved in
O’Donnell v. Barry
, where the
D.C. Circuit denied a plaintiff’s reputation-plus claim in part
for insufficient publication.
See
A 2011 decision by another Judge of this Court reaffirmed that
a plaintiff may state a claim under the stigma theory without
publication by the government.
See Okpala v. District of
Columbia
,
[D.C. Circuit precedent does not] stand[] for the proposition that a liberty interest claim based on defamation is actionable solely when outside publication occurs when proceeding under the ‘stigma or disability’ theory of liability. Indeed, valid liberty interest due process claims under the ‘stigma or disability’ theory were stated in [prior D.C. Circuit decisions] despite the fact that the defamatory statements were not published outside of government. at 17 (citations omitted). Although the D.C. Circuit in 2012
had not yet decided a case involving the precise facts at issue
in this case, the line of precedent making clear in a variety of
contexts that stigma claims do not require publication
“preclude[s] a viable ‘head-in-the-sand’ defense.”
Cox v.
Roskelley
,
Having found that the particular constitutional right was
clearly established, the Court must also determine whether Ms.
Haines-Walton should have been aware that her conduct violated
that right.
See Elkins
,
Holman
therefore stands for the proposition that an official
is entitled to qualified immunity when it would not have been
foreseeable that terminating someone could have a broadly
preclusive effect in the future. This flows from the general
purpose of qualified immunity: To ensure that government
officials are held liable only when they “violate clearly
established . . . rights
of which a reasonable person would have
known
.”
Pearson
,
In
Holman
, it was not foreseeable that statements which
“denigrated the plaintiff’s professional competence and impugned
his personal reputation” and a published article indicating that
the plaintiff had been fired for reasons related to “job
performance” could have broadly precluded the plaintiff from
employment in his field. 79–82. By contrast, accepting Ms.
McGinnis’s allegations as true, it would have been foreseeable
to Ms. Haines-Walton that termination for lying about a medical
condition would broadly preclude a police officer from obtaining
employment. Plaintiff notes that in
Tygrett v. Barry
, the
Circuit cited approvingly a statement of a Judge of this Court
that a “good reputation for truthfulness is essential to the
ability of a police officer to perform efficiently and
effectively his many testimonial duties.”
b. Rosenthal, Petty, and Stroud
*31 According to Ms. McGinnis’s allegations, Lieutenant Rosenthal, Inspector Petty, and Director Stroud participated in the “conspiracy” to terminate her for defamatory reasons and “encouraged the District to terminate [her] based on [the] defamatory pretext.” First Am. Compl., ECF No. 10 ¶¶ 11, 93. Moreover, Ms. McGinnis alleged additional facts connecting each of them to events surrounding the termination. See id. ¶¶ 49–50, 57, 60–64, 70–72. As discussed above, participation in the decision to terminate Ms. McGinnis for allegedly defamatory reasons is sufficient to show that defendants Rosenthal, Petty, and Stroud caused the constitutional harm under the stigma theory by “the official’s own individual actions.” Iqbal , 556 U.S. at 676. Because defendants Rosenthal, Petty, and Stroud did not rаise qualified immunity, the Court does not address whether they may be entitled to it at this stage of proceedings.
B. Ms. McGinnis’s Reputation-Plus Theory Against the Individual Defendants.
The stigma and reputation-plus theories appear to be two sides
of the same coin; Ms. McGinnis need only state a claim under one
theory for her Fifth Amendment claim to go forward.
See Evangelou v. District of Columbia
,
1. Ms. McGinnis Alleged a Violation of Her Fifth Amendment Right Under the Reputation-Plus Theory.
The reputation-plus theory addresses the harm that arises from
government defamation in conjunction with a “change in legal
status.”
Mosrie
,
It is undisputed that plaintiff’s termination “is an example
of a ‘paradigmatic’ status change” for purposes of a reputation-
plus claim.
See Doe v. Cheney
,
Plaintiff’s first theory—that the placement of the Haines-
Walton Memo in her personnel file is sufficient publication
because the file may be available to prospective employers—
implicates a long-running split among the Circuits.
[3]
The D.C.
*34
Circuit previously took a side, indicating that placement of a
defamatory statement in a personnel file that may be available
to elements of the public was enough for a reputation-plus
claim.
See Mazaleski v. Treusdell
,
personnel file and are likely to be disclosed to prospective
employers”). In reliance on these decisions, onе Judge of this
Court recently found that an “allegation that there is negative
information injuring [a plaintiff’s] reputation in his file that
is publicly available to future employers states a reputation-
plus claim [when that information] consists of the reasons for
his termination.”
Peter B v. CIA
,
Two other Judges of this Court, however, have concluded that
this understanding has been undermined by subsequent
developments.
See Dave
,
The Court therefore follows the decision in
Peter B
and the
D.C. Circuit’s decisions in
Doe
and
Mazaleski
, which appear to
be the only D.C. Circuit decisions to have addressed whether a
statement is published when it is placed in a public personnel
file. The Circuit’s more general description of the publication
requirement did not clearly displace those earlier decisions and
it appears that the government’s act of placing a statement in a
publicly available personnel file would be “publication” within
the meaning of those decisions.
See Krc
,
Defendants contend that the file cannot be made available to
anyone, so there is no possible risk of future publication. They
initially relied upon a declaration from Ms. Haines-Walton, but
such evidence is unhelpful to the resolution of a motion to
dismiss.
See
Mot. at 7–8 (citing Haines-Walton Decl., ECF No.
13-1 ¶¶ 6–7). Defendants shifted gears in their reply brief,
when they cited a District of Columbia regulation.
See
Reply at
10–12. The Court is skeptical of defendants’ request that it
consider this argument, which was not mentioned until their
reply brief. Indeed, the D.C. Circuit has noted that “district
courts, like this court, generally deem arguments made only in
*37
reply briefs to be forfeited.”
MBI Grp., Inc. v. Credit Foncier
Du Cameroun
,
These related concerns, that defendants did not mention these
regulations until their reply brief and failed to explain the
potentially contradictory nature of the regulations, prevent the
Court from holding at this stage of proceedings that Ms.
McGinnis’s personnel file is not available to any member of the
public.
See Mazaleski
,
2. Ms. Haines-Walton is Entitled to Qualified Immunity and the Other Individual Defendants Did Not Participate in the Constitutional Violation.
Having established that Ms. McGinnis sufficiently alleged a
violation of her Fifth Amendment right under the reputation-plus
theory, Ms. McGinnis must show “‘that each [individual
defendant], through the official’s own individual actions, has
violated the Constitution.’”
Elkins
,
Ms. Haines-Walton contends that, even if plaintiff has alleged her participation in the violation of a Fifth Amendment right, *39 she is entitled to qualified immunity. Defendants Rosenthal, Petty, and Stroud did not raise qualified immunity in their motion to dismiss, arguing only that Ms. McGinnis failed to allege facts to support an inference that they caused any constitutional violation.
Ms. McGinnis has failed to connect defendants Rosenthal, Petty, and Stroud to the reputation-plus violation through the placement of the Haines-Walton Memo in her personnel file. None of those defendants are alleged to have written the memo, placed it in her file, or made it available to anyone. Ms. McGinnis has, however, alleged sufficient facts to connect Ms. Haines- Walton to that action by claiming that Ms. Haines-Walton wrote the memo. The Court must therefore address whether Ms. Haines- Walton is entitled to qualified immunity for that action.
In the wake of
Roth
and its follow-on cases, it is “clearly
established thаt when the government terminates a public
employee and makes false or substantially inaccurate public
charges or statements that stigmatize the employee, that
employee’s liberty interest is implicated.”
McMath v. City of
Gary
,
The precedent within this Circuit on this precise question is
conflicted. Two D.C. Circuit decisions seem to establish that
placement of reputation-damaging statements in a personnel file
that could be viewed by the public is sufficient publication.
See Doe
,
C. Ms. McGinnis’s Claim Against the District
Ms. McGinnis’s claim against the District relies on the same
theories as her claims against the individual defendants. The
Court has already held that Ms. McGinnis stated a claim under
both the stigma and reputation-plus theories.
See supra
Parts
III.A–B. In order for the District to be liable for those
violations, it “must have acted in accordance with a government
policy or custom, whether made by its lawmakers or by those
whose edicts or acts may fairly be said to represent official
policy.”
Yancey v. District of Columbia
,
Plaintiff alleges the existence of two policies, each of which she claims was a moving force behind the constitutional violation. See First Am. Compl., ECF No. 10 ¶¶ 112–26. First, she asserts that the OC spray training at the MPD Academy was done incorrectly—recruits were sprayed directly in the eyes— pursuant to a District policy or custom (“the OC Spray Policy”). *42 See id. ¶¶ 112–20. Second, Ms. McGinnis alleges that the MPD has a policy of not providing notice and a hearing to individuals fired for reputation-damaging or stigmatizing reasons (“the Hearing Policy”). See id. ¶¶ 121–26.
The District argues that it cannot be held liable because
plaintiff has not alleged a sufficient causal connection between
the OC Spray Policy and any constitutional violation.
See
Mot.
at 18–20. Nowhere in its motion did the District address
plaintiff’s allegations regarding the Hearing Policy and its
causal connection to the constitutional violation. Moreover,
even though the plaintiff discussed the Hearing Policy in her
opposition brief, Opp. at 17–18, the District did not respond in
its reply brief. Because the District failed to address these
allegations in its motion “and fails to respond to Plaintiff’s
point in its Reply, the Court will deem it abandoned at least
for now.”
Ashraf-Hassan v. Embassy of France
, 878 F. Supp. 2d
164, 173–74 (D.D.C. 2012);
see also Lewis v. United States
, No.
90-991,
IV. Conclusion
For the foregoing reasons, the Court hereby DENIES defendants’ motion. An appropriate Order accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
August 28, 2014
Notes
[1] Ms. McGinnis provided further detail about her job search in her oрposition brief. See Opp. at 6 & n.2. The Court does not consider these allegations because “[i]t is axiomatic that a complaint may not be amended by the briefs in opposition to a
[2] Ms. McGinnis properly alleged the second component of a due-
process claim—that she was not provided the process due to her,
Reeve Aleutian Airways Inc. v. United States
,
[3]
Compare Burton v. Town of Littleton
,
[4] Because Ms. McGinnis has stated a reputation-plus theory on
this basis, the Court declines to address her alternative
argument that she has also stated a reputation-plus theory due
to the fact that “[o]thers in the MPD and at the Academy have
become aware of the defamatory rationale for [her] termination
despite their having no legitimate business-related reason to
know.” First Am. Compl., ECF No. 10 ¶ 102. Addressing this
alternate dispute at this stage of proceedings would not affect
her claims against any individual defendant because she pled no
facts to connect any of the individual defendants’ “own
individual actions,”
Iqbal
,