Cohen v. Board of Trustees of the University of the District of Columbia

• Court: District Court, District of Columbia
• Decided: April 24, 2018
• Docket: Civil Action No. 2014-0754
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) ROBERT COHEN, ) ) Plaintiff, ) v. ) ) BOARD OF TRUSTEES OF THE ) Civil Action No. 14-754 (EGS) UNIVERSITY OF THE DISTRICT ) OF COLUMBIA, et al., ) ) Defendants. ) )

MEMORANDUM OPINION

I. Introduction

Plaintiff Robert Cohen (“Dr. Cohen”) brings this action

against the Board of Trustees of the University of the District

of Columbia (“UDC”) and certain UDC officials in their

individual capacities—including Professor Vernise Steadman,

Provost Graeme Baxter, and President Allen Sessoms—

(collectively, “defendants”) after he was terminated from his

position as Professor. Dr. Cohen alleges six claims: (1)

violation of his due process rights under 42 U.S.C. § 1983

(“Section 1983”) and Bivens v. Six Unknown Named Agents of Fed.

Bureau of Narcotics, 403 U.S. 388 (1971) (“Bivens”); (2)

trespass to chattel; (3) conversion; (4) bailee indebtedness;

(5) negligence; and (6) intentional infliction of emotional

distress. Second Am. Compl., ECF No. 22 ¶¶ 37-70. He requests

compensatory and punitive damages. Id. ¶ 71. Pending before the

1 Court is the defendants’ motion to dismiss. Upon careful

consideration of the defendants’ motion, Dr. Cohen’s response,

the reply thereto, and the applicable law, the defendants’

motion to dismiss is hereby GRANTED IN PART and DENIED IN PART.

Dr. Cohen’s due process claim pursuant to Section 1983 against

the UDC Board of Trustees, President Sessoms, and Provost Baxter

may proceed.

II. Background

A. Factual Background

As this matter is before the Court on defendants’ motion to

dismiss, the Court will assume that the following allegations in

the complaint and attachments thereto are true. Dr. Cohen had

been a tenured professor at UDC since 1976. Second Am. Compl.,

ECF No. 22 ¶ 3. In August 2010, he was terminated for failing to

submit teaching evaluations for academic years 2006-2007, 2007-

2008, and 2008-2009. Id. ¶¶ 14-17. For about a year prior to his

termination, Dr. Cohen and defendants had been in a dispute over

these evaluations, resulting in warnings, suspension without

pay, a final opportunity to submit the evaluations, and

ultimately, termination. Letter from Provost Graeme Baxter

(“Baxter Letter”), ECF No. 22-2.

On June 18, 2010, then-Provost Graeme Baxter sent Dr. Cohen

a final notice of the missing evaluations, requesting a

completed evaluation portfolio within twenty-one days and

2 warning that failure to submit the portfolio would subject Dr.

Cohen “to additional disciplinary action which could include

termination.” Id. However, Dr. Cohen was not aware of the letter

and did not timely receive it. Second Am. Compl., ECF No. 22 ¶¶

30-32; Letter Appealing Termination to President Sessoms

(“Appeal Letter”), ECF No. 22-4. On August 5, 2010, having

received no response, Provost Baxter sent Dr. Cohen a letter

terminating him for cause pursuant to the collective bargaining

agreement between UDC and its faculty, known as the “Sixth

Master Agreement.” Second Am. Compl., ECF No. 22 ¶ 17;

Termination Statement of Cause Letter (“Termination Letter”),

ECF No. 22-3. The letter provided Dr. Cohen with appeal

instructions, also pursuant to the Sixth Master Agreement. Id.

Dr. Cohen became aware of his termination about two weeks later.

Second Am. Compl., ECF No. 22 ¶ 18. He discovered that his

office “had been seized and all his possessions and university

documents had been taken.” Id. ¶ 20. Additionally, Dr. Cohen’s

UDC email address was closed and he “lost all his academic and

administrative documents stored on UDC’s system.” Id. ¶ 21.

On September 1, 2010, Dr. Cohen appealed UDC’s termination

decision to then-UDC President Allen Sessoms, arguing in part

that the Chairperson of his Department, Professor Vernise

Steadman, did not submit one of his completed evaluations. Id. ¶

23; Appeal Letter, ECF No. 22-4. UDC President Sessoms denied

3 Dr. Cohen’s appeal on September 8, 2010, finding it “not

credible” that Dr. Cohen did not receive UDC’s multiple

communications. Denial Letter from President Sessoms (“Denial

Letter”), ECF No. 22-5.

Following the procedures set forth in the Sixth Master

Agreement, Dr. Cohen then appealed President Sessoms’ decision

to his union——the UDC Faculty Association (“the Association”)——

for arbitration. Pl.’s Opp’n, ECF No. 25 at 8. However, the

Association “refused to represent him.” Id. Rather than

appealing the Association’s refusal to arbitrate as an unfair

labor practice to the Public Employee Relations Board (“PERB”)

pursuant to the Comprehensive Merit Personnel Act (“CMPA”), D.C.

Code § 1-605.02, Dr. Cohen filed this action.

B. Procedural Background

Dr. Cohen originally filed a breach of contract claim

against the defendants in the Superior Court of the District of

Columbia (“Superior Court”) on September 9, 2013. Defs.’ Mot.,

ECF No. 24 at 1. On March 14, 2014, his claim was dismissed with

prejudice, although the Superior Court granted Dr. Cohen leave

to file an amended complaint. Id. at 2. On April 2, 2014, Dr.

Cohen filed an amended complaint, alleging the claims currently

before the Court. See First Am. Compl., ECF No. 2–2 at 100–06.

In light of the federal due process claim, the defendants

4 removed the case to this Court on April 30, 2014. See Notice of

Removal, ECF No. 1.

This Court dismissed Dr. Cohen’s first amended complaint

with prejudice after Dr. Cohen failed to timely respond to the

defendants’ motion to dismiss and to the defendants’ opposition

to his already-late motion for an extension of time. Cohen v.

Bd. of Trs. of the Univ. of the District of Columbia, 305 F.R.D.

10 (D.D.C. 2014). On appeal, the Court of Appeals for the

District of Columbia Circuit (“D.C. Circuit”) affirmed this

Court’s “denial of Cohen's motion to extend time and its

dismissal of the complaint,” but reversed the Court’s dismissal

“insofar as it dismissed the complaint with prejudice.” Cohen v.

Bd. of Trs. for the Univ. of Univ. of the District of Columbia,

819 F.3d 476, 485 (D.C. Cir. 2016).

Accordingly, Dr. Cohen filed a second amended complaint on

August 1, 2016. See Second Am. Compl., ECF No. 22. Defendants

filed a motion to dismiss on September 19, 2016. See Defs.’

Mot., ECF. No 24. This motion is ripe and ready for review.

III. 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, 292 F.3d 235, 242 (D.C. Cir. 2002). To survive a

motion to dismiss, a complaint must contain “sufficient factual

matter, accepted as true, to state a claim to relief that is

5 plausible on its face. A claim has facial plausibility when the

pleaded factual content 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 (2009) (citations

and quotations omitted).

In considering a motion to dismiss, 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.” Iqbal, 556 U.S. at 678. “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. District of Columbia, 73 F. Supp. 3d 1, 3 (D.D.C.

2014) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555,

(2007)). The court “may consider attachments to the complaint as

well as the allegations contained in the complaint itself.”

English v. District of Columbia, 717 F.3d 968, 971 (D.C. Cir.

2013). As discussed above, Dr. Cohen attaches several exhibits

to his complaint, including the Sixth Master Agreement and his

communications with the defendants.

6 IV. Analysis

A. Dr. Cohen’s Claims are Not Time-Barred

The defendants move to dismiss all of Dr. Cohen’s claims on

statutes of limitations grounds. See Defs.’ Mot., ECF No. 24 at

10-15. Federal Rule of Civil Procedure 12(b)(6) “is the vehicle

for asserting the affirmative defense of statutory time

limitation.” Peart v. Latham & Watkins LLP, 985 F. Supp. 2d 72,

80 (D.D.C. 2013). Because statutes of limitations issues often

depend on contested questions of fact, “a defendant is entitled

to succeed on a Rule 12(b)(6) motion to dismiss brought on

statutes of limitations grounds only if the facts that give rise

to this affirmative defense are clear on the face of the

plaintiff’s complaint.” Lattisaw v. District of Columbia, 118 F.

Supp. 3d 142, 153 (D.D.C. 2015).

The defendants argue that all of Dr. Cohen’s asserted

claims in the second amended complaint are conclusively time-

barred. See Defs.’ Mot., ECF No. 24 at 10-15. They reason that

the statutes of limitations for his claims began to run when the

claims accrued on September 10, 2010, the date that Dr. Cohen

learned that President Sessoms had denied his termination

appeal. Id. According to the defendants, the statutes of

limitations ran through August 1, 2016, the date that Dr. Cohen

filed his second amended complaint. See id. at 11-15. Because

all of the claims are undisputedly subject to three-year

7 statutes of limitations, the defendants argue that all of Dr.

Cohen’s claims have been filed about three years too late. Id.

at 12-14.

The defendants assert that the August 1, 2016 filing date

is the date when the statutes of limitations were finally tolled

because this Court dismissed Dr. Cohen’s first amended

complaint, which had been filed on April 2, 2014. Id. at 13.

That July 7, 2014 dismissal, according to the defendants, “wiped

out” the prior complaint filing’s tolling effect. Id. (quoting

Ciralsky v. CIA, 355 F.3d 661, 672 (D.C. Cir. 2004)). Thus, the

defendants reason that the three-year statutes of limitations

started running from the time Dr. Cohen’s claims accrued in 2010

and did not stop for six years—until Dr. Cohen filed his second

amended complaint on August 1, 2016. The Court disagrees.

The defendants’ statutes of limitations argument fails in

the face of the “mandate rule.” Under that rule, “an inferior

court has no power or authority to deviate from the mandate

issued by an appellate court.” Indep. Petroleum Ass’n of Am. v.

Babbitt, 235 F.3d 588, 596-97 (D.C. Cir. 2001)(citing Briggs v.

Pa. R.R. Co., 334 U.S. 304, 306 (1948)). The mandate rule is “a

‘more powerful version’ of the law-of-the-case doctrine, which

prevents courts from reconsidering issues that have already been

decided in the same case.” Id. at 597 (quoting LaShawn A. v.

Barry, 87 F.3d 1389, 1393 n.3 (D.C. Cir. 1996) (en banc)). The

8 rule’s scope extends to issues that were decided by the D.C.

Circuit “either explicitly or by necessary implication.” United

States v. Ins. Co. of N. Am., 131 F.3d 1037, 1041 (D.C. Cir.

1997).

On appeal, the D.C. Circuit reversed this Court insofar as

it had dismissed Dr. Cohen’s complaint with prejudice, thus

dismissing the case. Cohen, 819 F.3d at 485. Consequently, this

Court’s July 7, 2014 Order ultimately had the effect of

dismissing Dr. Cohen’s first amended complaint without

prejudice, and did not dismiss his case. See Mandate of USCA,

ECF No. 21. The D.C. Circuit explained that although dismissal

of the complaint and the case would have wiped out a previously-

filed complaint’s tolling effect, dismissal of only the

complaint, and not the case, would have no such result. Cohen,

819 F.3d at 478-79. Accordingly, the D.C. Circuit concluded that

Dr. Cohen is “free to file an amended complaint” with the

statute of limitations “tolled from the date of his original

complaint.” Id. at 478-79, 484 (emphasis added). 1 Thus, Dr.

Cohen’s second amended complaint, filed on August 1, 2016, is

1 Although Dr. Cohen’s original complaint was dismissed with prejudice, the Superior Court allowed Dr. Cohen to file an amended complaint in the same case, suggesting that the case was not dismissed. See Removed Materials, ECF No. 1-2, Exs. HH and II at 348-51. Regardless, the D.C. Circuit’s mandate is clear: the statutes of limitations are tolled from the date of the original complaint. 9 not time-barred because the applicable statutes of limitations

were tolled from the date that his original complaint was filed:

September 9, 2013.

The D.C. Circuit’s mandate disposes of this issue because

the defendants argue that all of Dr. Cohen’s claims are subject

to three-year statutes of limitations. See Defs.’ Mot., ECF No.

24 at 12-15. Further, defendants conceded that the original

complaint filed on September 9, 2013 was timely. See Defs.’

Reply, ECF No. 26 at 5 (explaining that the claim in Dr. Cohen’s

original complaint “was timely asserted”). Stated differently,

because the statutes of limitations have been tolled from

September 9, 2013, Cohen, 819 F.3d at 478-79, and because the

defendants conceded that Dr. Cohen’s claims with three-year

limitations periods made as of that date were timely, see Defs.’

Reply, ECF No. 26 at 5, all of Dr. Cohen’s claims were timely.

Accordingly, the applicable statutes of limitations pose no

barrier for Dr. Cohen.

B. Dr. Cohen’s Common Law Claims (Counts 2-6) are Dismissed for Failure to Exhaust Administrative Remedies

The defendants also argue that Dr. Cohen’s common law

claims for trespass to chattel, conversion, bailee indebtedness,

negligence, and intentional infliction of emotional distress are

preempted because he failed to exhaust the administrative

remedies available to him pursuant to the CMPA, D.C. Code § 1-

10 601.01 et seq., and the Sixth Master Agreement. See Defs.’ Mot.,

ECF No. 24 at 15-19. Dr. Cohen agrees that the Sixth Master

Agreement governed his employment relationship with UDC, but he

argues that he exhausted his administrative remedies. Pl.’s

Opp’n, ECF No. 25 at 8 (calling the Sixth Master Agreement a

“CMPA[-]sanctioned . . . collective bargaining agreement”).

Alternatively, he argues that, for various reasons discussed

more fully below, he was not required to exhaust administrative

remedies. Id. at 8-13. The Court concludes that Dr. Cohen was

required to exhaust the administrative remedies put in place by

the Sixth Master Agreement and the CMPA. His common law claims

are dismissed because he failed to do so.

1. The CMPA and the Sixth Master Agreement

The “CMPA provides for a comprehensive system of

administrative review of employer actions——whether under CMPA

itself through [the Office of Employee Appeals (“OEA”)] or under

a union contract subject to PERB [review]——and in each case

subject to judicial review in [the] Superior Court [of the

District of Columbia].” District of Columbia v. Thompson, 593

A.2d 621, 633 (D.C. 1991); see D.C. Code § 1-601.01, et seq. The

CMPA “create[s] a mechanism for addressing virtually every

conceivable personnel issue among the District, its employees,

and their unions——with a review role for the courts as a last

11 resort, not a supplementary role for the courts as an

alternative forum.” Thompson, 593 A.2d at 634.

Normally, a terminated employee can choose between: (1)

appealing his termination to the OEA, D.C. Code § 1-616.52(b);

or (2) using any grievance procedure set out in an applicable

collective bargaining agreement. Id. § 1-616.52(e). However,

appeal to the OEA is foreclosed when the applicable collective

bargaining agreement “includes exclusive grievance procedures.”

See Pitt v. District of Columbia Dep’t of Corrs., 819 A.2d 955,

958 (D.C. 2003) (citation omitted); D.C. Code § 1-606.02(b)

(stating that “[a]ny performance rating, grievance, adverse

action or reduction-in-force review, which has been included

within a collective bargaining agreement . . . shall not be

subject to the provisions” of the CMPA’s subchapter governing

appellate proceedings before the OEA). The Sixth Master

Agreement included such exclusive grievance procedures. See

Sixth Master Agreement, ECF No. 22-1 at art. IX, §§ B(2-3); art.

XI, § A(1). Therefore, the process set forth in the Sixth Master

Agreement was Dr. Cohen’s only available recourse. 2

2 Even if Dr. Cohen had been permitted to appeal his removal to the OEA as an alternative to following the Sixth Master Agreement’s grievance procedure, the Court’s ultimate conclusion that Dr. Cohen failed to exhaust his administrative remedies would not change. Dr. Cohen has not alleged that he appealed his termination to OEA nor, as will be discussed, has he exhausted the grievance procedure put in place by the Sixth Master 12 With appeal to the OEA foreclosed, Dr. Cohen’s only

recourse was to make use of the grievance procedure put in place

by the Sixth Master Agreement. The Sixth Master Agreement is an

agreement “made between the [UDC] Faculty Association . . . and

the [UDC] Board of Trustees.” Sixth Master Agreement, ECF No.

22-1 at art. I. It “set[s] forth terms and conditions of

employment for faculty,” including the disciplinary procedures

that UDC and its employees must follow. Id. at arts. II, XI. As

articulated above, the disciplinary procedures set forth in the

Sixth Master Agreement are the “sole and exclusive means by

which a disciplinary or adverse action may be brought against a

faculty member . . . .” Id. at art. XI, § A(1).

According to the Sixth Master Agreement, a faculty member

may only be subject to a “disciplinary action”—defined as a

“written reprimand, suspension, or dismissal”—for cause. Id. at

§§ A(2),(3). First, disciplinary action shall be preceded by a

discussion between the faculty member and a University

Administrator. Id. at § B(1). At that point, the Administrator

must recommend a course of action. When suspension or

termination is recommended, as it was for Dr. Cohen, the Provost

shall conduct an informal inquiry. If she determines that the

Agreement. Thus, assuming both options were open to him, he has exhausted neither one. 13 recommended action is warranted, the Provost shall provide the

faculty member with a written statement of cause describing the

adverse action and the facts warranting it. Id. at §§ B(3-5).

The aggrieved faculty member has ten days to appeal the

decision. Id. at § B(6). At that point, the President may

conduct an inquiry and shall either sustain, modify, or dismiss

the decision. Id. at § C(1)(a). If the President upholds a

termination decision, the decision may be appealed “by the

Association to arbitration” in accordance with Article IX. Id.

at § C(1)(b). Article IX clarifies that “the Association, and

only the Association, may . . . commence an arbitration

proceeding.” Id. at art. IX, § D(7). The Sixth Master Agreement

does not address a next step if the Association declines to

arbitrate. At this point, then, the “exclusive” Sixth Master

Agreement procedure is completed and an affected employee must

turn to the CMPA for recourse. The CMPA allows an employee to

appeal the Association’s refusal to arbitrate to the PERB as an

“unfair labor practice.” D.C. Code § 1-605.02(3). The PERB’s

evaluation of the Association’s declination is reviewable in

Superior Court. D.C. Code § 1-617.13.

2. Exhaustion Requirement

Because, in Dr. Cohen’s words, all of his claims “relate[]

to his removal . . . from employment,” his removal was a

“disciplinary or adverse action” covered by the exclusive

14 provisions of the Sixth Master Agreement. Pl.’s Opp’n, ECF No.

25 at 12; see Sixth Master Agreement, ECF No. 22-1 at art. XI, §

A(2). Assuming his claims are true, Dr. Cohen complied with the

Sixth Master Agreement’s mandated grievance procedure because he

appealed his termination to President Sessoms. See Appeal

Letter, ECF No. 22-4; Sixth Master Agreement, ECF No. 22-1 at

art. XI, §§ B(1-6). When President Sessoms upheld Dr. Cohen’s

removal, Dr. Cohen then properly “requested that the Association

commence arbitration proceedings” to appeal the decision, but

the Association “refused to represent him.” 3 Pl.’s Opp’n, ECF No.

25 at 8; Sixth Master Agreement, ECF No. 22-1 at art. XI, §

C(1)(b). Accordingly, he contends that that he “exhausted all

administrative remedies.” Id. The Court disagrees.

Once the Association refused his request to appeal his

termination, Dr. Cohen’s “only remedy at that point [was] a

complaint against the union filed with the Public Employee

Relations Board, requesting an order compelling the union to

arbitrate.” See Bd. of Trs. of the Univ. of the District of

Columbia v. Myers, 652 A.2d 642, 646 (D.C. 1995). An appeal to

3 Defendants argue that Dr. Cohen did not raise this fact in his complaint and thus, cannot “amend his complaint through opposition.” Defs.’ Reply, ECF No. 26 at 11 n. 7. However, the Court finds that this fact was sufficiently pled. See Second Am. Compl., ECF No. 22 ¶ 41 (arguing that the Sixth Master Agreement violates due process when the Association elects not to proceed to arbitration). 15 the PERB is mandated because there is “no doubt that [the] PERB

has the power, under D.C. Code § 1-605.[0]2(3), to order the

union to pursue arbitration of an employee’s claim against the

employer if [the] PERB concludes that the union’s refusal to

arbitrate amounted to an unfair labor practice.” Id. It is

undisputed that Dr. Cohen never filed a complaint against the

Association with the PERB. This means that he “failed to take

advantage of the final procedural remedy” available to him. Id.

at 647. When the Association failed to pursue arbitration, Dr.

Cohen “could not circumvent the procedure prescribed in the

[collective bargaining agreement and the CMPA]——namely,

arbitration and review by the PERB——by filing a lawsuit.” See

Johnson v. District of Columbia, 552 F.3d 806, 811 (D.C. Cir.

2008). Because Dr. Cohen attempted just that prohibited

circumvention——declining to file a complaint against his

Association with the PERB and, instead, filing a lawsuit——he

failed to exhaust the administrative remedies available to him.

3. Dr. Cohen’s Arguments Against Exhaustion are Unavailing

Dr. Cohen’s fallback position——that he had no need to

exhaust administrative remedies——is unpersuasive. His primary

argument is that he did not need to exhaust the available

grievance procedure because the Sixth Master Agreement

eliminated the safeguard of “impartial judicial review of an

16 employee’s dispute.” Pl.’s Opp’n, ECF No. 25 at 8-11. This

argument fails because the CMPA provides for review of the

PERB’s decisions in the Superior Court. 4 D.C. Code §§ 1-

605.02(12), 1-617.13(c) (“Any person aggrieved by a final order

of the [PERB] granting or denying in whole or in part the relief

sought may obtain review in the Superior Court by filing a

request within 30 days after the final order has been issued.”).

To the extent that Dr. Cohen is attempting to make a

futility argument, that argument also fails. See Myers, 652 A.2d

at 645 (“[An] employee may be able to bypass administrative

remedies under a collective bargaining agreement by showing that

the pursuit of these remedies would be futile.”). First, the

fact that the Association denied his alleged request to

arbitrate does not demonstrate futility. See id. at 648 (“The

fact that a union may decline to pursue an employee’s grievance

does not in itself reflect futility in exhausting administrative

4 This conclusion is distinct from the due process analysis, see infra Section C. The fact that Dr. Cohen did not exhaust his administrative remedies does not automatically warrant dismissing his due process claim because the defendants did not argue that Dr. Cohen was required to exhaust his constitutional claim. Indeed, the defendants expressly disavowed opposing Dr. Cohen’s due process claim on CMPA preemption grounds. See Defs.’ Reply, ECF No. 26 at 16 n.8. Because the D.C. Circuit has expressly declined to decide whether the CMPA’s exhaustion requirement is jurisdictional or nonjurisdictional, the Court need not raise the issue sua sponte. See Johnson v. District of Columbia, 552 F. 3d. 806, 811 n.2 (D.C. Cir. 2008). 17 remedies . . . .”). Second, because “the PERB has authority to

determine that the failure to arbitrate under a [collective

bargaining agreement] is an unfair labor practice and to fashion

a remedy,” “it would not have been futile for [Dr. Cohen] to

seek a remedy from the PERB” when the Association declined to

arbitrate. See Johnson, 552 F.3d at 814.

Dr. Cohen also argues that he did not need to exhaust his

administrative remedies because OEA appeal was not an option,

thanks to the Sixth Master Agreement’s exclusive grievance

procedure. See Pl.’s Opp’n, ECF No. 25 at 9. As explained above,

the Court agrees that Dr. Cohen was foreclosed from appealing to

the OEA. However, the Sixth Master Agreement’s exclusive

grievance procedure does not negate his duty to exhaust that

procedure before proceeding to court. In Myers, a UDC professor

bound by an exclusive grievance procedure was obligated to

exhaust that procedure before proceeding to court on his claim

against the school. 652 A.2d at 646-48. This was true even

though the exclusive procedure did not “provide for appeal to

OEA.” Id. at 645 n.6. So too here.

administrative remedies because his common law tort claims did

“not arise out of employer conduct in handling personnel

ratings, employee grievances, and adverse actions.” Pl.’s Opp’n,

ECF No. 25 at 11-12. In other words, Dr. Cohen argues that his

18 tort claims are not sufficiently related to his employment to be

cognizable as claims governed by the CMPA or the CMPA-sanctioned

Sixth Master Agreement. With his tort claims purportedly outside

of the reach of the CMPA and the Sixth Master Agreement, Dr.

Cohen argues that he had no need to exhaust the administrative

remedies under the CMPA and the Sixth Master Agreement.

The Court disagrees. While it is true that the CMPA and a

CMPA-sanctioned collective bargaining agreement do not preempt

all tort claims generally, they do preempt any claims of

wrongful treatment and injury that are cognizable as personnel

issues. King v. Kidd, 640 A.2d 656, 663 (D.C. 1993); see also

Thompson, 593 A.2d at 634 (describing the CMPA as “a mechanism

for addressing virtually every conceivable personnel issue among

the District, its employees, and their unions” and finding that

claims within its reach are only reviewed by courts “as a last

resort”). Dr. Cohen’s tort claims all arise from a

quintessential personnel issue: his termination. Dr. Cohen

himself contradicts his argument when he admits that his claims

“relate[] to his removal . . . from employment.” See Pl.’s

Opp’n, ECF No 25 at 12. His trespass to chattel, conversion,

bailee indebtedness, and negligence claims are all based on

UDC’s alleged seizure of his office and the items found therein

following its decision to fire him. See Second Am. Compl., ECF

No. 22 ¶¶ 18, 20, 21, 43, 46, 49, 52. Similarly, his intentional

19 infliction of emotional distress claim is connected to his

dismissal, because it is premised on defendants “targeting” him

for termination. Id. ¶¶ 54-70. In short, because Dr. Cohen’s

tort claims all clearly connect back to the core dispute

regarding his termination, they do not escape the reach of the

CMPA and the CMPA-sanctioned Sixth Master Agreement.

Accordingly, Dr. Cohen was obligated to exhaust the

administrative remedies available to him.

Alternatively, Dr. Cohen argues that he need not exhaust

his claims because the CMPA and the Sixth Master Agreement,

which both only cover CMPA-defined “grievances,” do not apply

because his tort claims cannot be understood as CMPA

“grievances.” Pl.’s Opp’n, ECF No. 25 at 12-13. Dr. Cohen’s

contention that his claims are not “grievances” has some merit.

The CMPA defines a “grievance” as “any matter under the control

of the District government which impairs or adversely affects

the interest, concern, or welfare of employees, but does not

include adverse actions resulting in removals.” D.C. Code § 1-

603.01(10). Because all of Dr. Cohen’s claims are ultimately

connected to his removal, the claims do not fit within the CMPA

definition of a “grievance.” See Pl.’s Opp’n, ECF No. 25 at 12.

But it does not follow that Dr. Cohen need not exhaust his

administrative remedies. First, the CMPA “grievance” definition

goes on to specify that “[t]his definition . . . is not intended

20 to restrict matters that may be subject to a negotiated

grievance and arbitration procedure in a collective bargaining

agreement between the District and a labor organization

representing employees.” D.C. Code § 1-603.01(10). Thus the CMPA

“grievance” definition does not restrict the scope of the Sixth

Master Agreement, which clearly subjects removal-related matters

to its exclusive grievance procedure. See Sixth Master

Agreement, ECF No. 22-1 at art. XI, §§ A(2), B(6), C(1). Bound

by that exclusive grievance procedure, Dr. Cohen was required to

exhaust it before filing suit.

Regardless, Dr. Cohen errs in arguing that the CMPA and the

CMPA-sanctioned Sixth Master Agreement only apply to

“grievances” as defined in the CMPA. A “grievance” is just one

type of personnel issue that the CMPA addresses. “Adverse

actions,” like removals, are another. See D.C. Code § 1-

616.52(d) (differentiating between a “grievance” and “adverse

actions.”) Although the CMPA provides procedures for both types

of matters, a collective bargaining agreement’s procedures for

dealing with such matters take precedence. Id. Thus, Dr. Cohen

is misguided in thinking his claim escapes the exclusive

grievance procedure put in place by the Sixth Master Agreement

and the CMPA.

Finally, Dr. Cohen contends that he did not need to exhaust

the available administrative remedies because “the CMPA treats

21 educational employees of UDC differently from other District

employees under D.C. Code § 1-602.03(b).” Pl.’s Opp’n, ECF No.

25 at 13. This argument is also unavailing because it does not

appear to the Court that the inapplicability of the exempted

subchapters have any bearing on Dr. Cohen’s obligation to

exhaust his removal-related claims. For example, Section 1-

602.01 states that the CMPA “shall apply to all employees of the

District of Columbia” unless “specifically exempted.” Section 1-

602.03 subjects UDC educational employees to all of the CMPA

except the subchapters concerning: (1) career service,

subchapter VIII; (2) executive service, subchapter X; (3)

incentive awards, subchapter XI; (4) employee development,

subchapter XIII; (5) the voluntary leave transfer program,

subchapter XIII-A; (6) incentive awards, subchapter XIX; and (7)

reductions-in-force, subchapter XXIV. It also excludes UDC

employees from the provisions of §1-609.01, which “relat[es] to

the development of job descriptions.” None of these exempted

subchapters are relevant to Dr. Cohen’s claims and none concern

adverse action or grievance procedures. Thus, Dr. Cohen, as a

UDC employee, was obligated to exhaust his administrative

remedies under the CMPA.

In sum, all of Dr. Cohen’s tort claims were connected to

his removal from employment such that they did not escape the

grasp of the CMPA and the CMPA-sanctioned Sixth Master

22 Agreement, to which Dr. Cohen was bound. His failure to exhaust

the administrative remedies available to him, namely appealing

the Association’s refusal to arbitrate to the PERB before filing

a lawsuit, warrants dismissal of those tort claims.

C. Dr. Cohen States a Due Process Claim Against UDC Board of Trustees, Provost Baxter, and President Sessoms, but Fails to State a Claim Against Professor Steadman

Defendants move to dismiss Dr. Cohen’s due process claim

pursuant to Section 1983 and Bivens for failure to state a

claim. They argue that Dr. Cohen received due process because he

had notice of his termination and an opportunity to respond,

“the essential elements of a due process claim.” Defs.’ Mot.,

ECF No. 24 at 21. In turn, Dr. Cohen asserts that his due

process rights were violated because he was terminated without

notice, without an opportunity to be heard, and for “wholly

arbitrary and invidious reasons.” Second Am. Compl., ECF No. 22

¶¶ 38-41. The Court understands Dr. Cohen’s argument to be that

his due process rights were violated in different ways by UDC

and the individual defendants, respectively. First, he alleges

that the Sixth Master Agreement, “provided by” the UDC Board of

Trustees, is unconstitutional because no “impartial judicial

review is conducted at all when the third-party union elects not

to represent the employee.” Id. ¶ 41. As the Court understands

it, Dr. Cohen argues that the Sixth Master Agreement violates

procedural due process because there is no substantive,

23 independent review of UDC’s termination decision if the PERB

finds that the Association’s refusal to arbitrate was not an

unfair labor practice. Dr. Cohen’s allegations against the

individual defendants are less clear. He seems to argue that

President Sessoms, Provost Baxter, and Professor Steadman

violated his due process rights in three ways: (1) by

implementing the unconstitutional Sixth Master Agreement; (2) by

flouting the procedural requirements of the same policy; and (3)

by “target[ing]” him for termination for “invidious reasons.”

See generally Second Am. Compl., ECF No. 22. Because the

defendants’ motion to dismiss fails to address several of these

plausible arguments, the motion as to the UDC Board of Trustees,

President Sessoms, and Provost Baxter is DENIED. The motion to

dismiss as to Professor Steadman is GRANTED.

1. Dr. Cohen States a Due Process Claim Pursuant to Section 1983 Against the UDC Board of Trustees

Section 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. A municipality, like UDC,

“can be found liable under [Section] 1983 only where the

municipality itself causes the constitutional violation at

issue.” City of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989)

(citing Monell v. Dep’t. of Soc. Servs. of N.Y.C., 436 U.S. 658,

694-95 (1978))(emphasis in original). Thus, to state a claim

24 against UDC, Dr. Cohen’s complaint must allege that: (1) he

suffered a constitutional harm; and (2) the constitutional harm

was caused by UDC’s policy or custom. Morello v. District of

Columbia, 73 F. Supp. 3d 1, 3-4 (D.D.C. 2014)(citing Baker v.

District of Columbia, 326 F.3d 1302, 1306 (D.C. Cir. 2003)).

With regard to the second prong, Dr. Cohen must establish an

“affirmative link,” such that UDC’s municipal policy was the

“moving force” behind the constitutional violation. Id. at 4

(quoting Baker, 326 F.3d at 1306).

It is uncontested that UDC and its Board of Trustees is an

independent agency subject to Section 1983 municipal liability.

§ 38-1202.01 (UDC is an “independent agency of the government of

the District of Columbia . . . which [is] governed by the Board

of Trustees” with the power to sue or be sued); see also Hill v.

Bd. of Trs. of the Univ. of the District of Columbia, 146 F.

Supp. 3d 178 (D.D.C. 2015) (finding that the plaintiff, a UDC

employee, stated a Section 1983 claim against the UDC Board of

Trustees); Green v. Washington, D.C., Civ. No. 05-1097, 2006 WL

1712399 at *2 n.3 (D.D.C. June 16, 2006) (finding that the UDC

Board of Trustees is an independent agency subject to Section

1983 liability, notwithstanding the plaintiff’s failure to state

a claim).

Having determined that the UDC Board of Trustees is subject

to Section 1983 municipal liability, the Court now analyzes

25 whether Dr. Cohen has plausibly alleged: (1) an underlying due

process constitutional violation; and (2) that a municipal

policy caused the underlying violation.

a. Predicate Due Process Constitutional Violation

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. Procedural due process “imposes

constraints on governmental decisions which deprive individuals

of ‘liberty’ or ‘property’ interests . . . .” Mathews v.

Eldridge, 424 U.S. 319, 332 (1976). To that end, 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)). Dr. Cohen pleads a plausible predicate due

process violation because he alleges that: (1) he was deprived

of a protected liberty or property interest; (2) he lacked

sufficient notice of his impending deprivation; and/or (3) he

lacked a meaningful opportunity to be heard on that deprivation.

“The first inquiry in every [procedural] due process

challenge is whether the plaintiff has been deprived of a

protected interest in liberty or property. Only after finding

the deprivation of a protected interest do we look to see if the

[government's] procedures comport with due process.” Gen. Elect.

26 Co. v. Jackson, 610 F.3d 110, 117 (D.C. Cir. 2010) (quoting Am.

Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999)). Dr.

Cohen’s interest in his continued employment is protected

because, as a tenured professor at UDC, he could only be fired

“for cause.” Sixth Master Agreement, ECF No. 22-1 at art. XI, §

A(3); Second Am. Compl., ECF No. 22 ¶ 3. More generally, “[i]t

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) (quotes and citations omitted).

Plaintiff, a UDC employee, was governed by the CMPA-sanctioned

Sixth Master Agreement and the CMPA. Thus, accepting the

allegations in the complaint as true and drawing all reasonable

inferences in his favor, Iqbal, 556 U.S. at 678, Dr. Cohen has

alleged a cognizable property interest triggering “sufficient

notice and a meaningful opportunity to be heard.” Budik v.

United States, 949 F. Supp. 2d 14, 25 (D.D.C. 2013).

Next, the Court must “ask what process [UDC] provided, and

whether it was constitutionally adequate.” Zinermon v. Burch,

494 U.S. 113, 126 (1990). Generally, whether a procedure is

adequate is a “flexible” assessment that “varies with the

particular situation.” Id. at 127 (citing Mathews, 424 U.S. at

335). In applying the Mathews test—which involves weighing the

private interest, the government interest, and the risk of an

erroneous deprivation—the court “usually has held that the

27 Constitution requires some kind of hearing before the State

deprives a person of liberty or property.” Id. However, in some

circumstances, a post-deprivation hearing satisfies due process.

Id. at 128; see also Black v. District of Columbia, 134 F. Supp.

3d 255, 261 (D.D.C. 2015)(“Due process may be satisfied by

either pre-deprivation procedures or adequate post-deprivation

remedies.”)(internal quotations and citations omitted). While

Dr. Cohen alleges that he lacked prior notice because he did not

receive UDC’s letters warning him of his impending termination,

Second Am. Compl., ECF No. 22 ¶¶ 15, 16, his complaint focuses

on what he alleges is the Sixth Master Agreement’s inadequate

post-deprivation process. Dr. Cohen does not allege that the

Sixth Master Agreement fails to provide sufficient pre-

termination notice. See generally Second Am. Compl., ECF No. 22.

Therefore, Dr. Cohen’s claim that he did not actually receive

notice is irrelevant to his argument that the Sixth Master

Agreement is facially unconstitutional.

The relevant allegation, then, is that Dr. Cohen was not

provided with a meaningful opportunity to be heard once he was

terminated. Dr. Cohen argues that the Sixth Master Agreement

does not provide for independent review of UDC’s adverse

employment actions when the Association elects not to appeal

that action to arbitration. Second Am. Compl., ECF No 22 ¶ 41.

Indeed, the Association’s refusal to arbitrate is appealable

28 under the CMPA to the PERB and later to the Superior Court, but

this review is limited to whether the Association’s decision was

“an unfair trade practice,” and does not assess the merits of

the underlying employment action. See D.C. Code §§ 1-605.02(3),

1-617.13(c). To that end, Dr. Cohen argues that the fairness of

the Association’s refusal to arbitrate is “unrelated” to his

termination. Pl.’s Opp’n, ECF No. 25 at 16.

The defendants contend that Dr. Cohen fails to state a

claim because he had an opportunity to “challenge his

termination” by appealing to UDC’s President Sessoms. Defs.’

Mot., ECF No. 24 at 20-22 (citing Termination Letter, ECF No.

22-3, allowing Dr. Cohen to “appeal directly to the President”).

Relying on Guerrero v. University of the District of Columbia,

they contend that Dr. Cohen’s due process claim “must be

dismissed” because he was “afforded an administrative process

through which [he] could raise any challenges to the decision to

terminate.” Defs.’ Mot., ECF No. 24 at 21 (citing 251 F. Supp.

2d 13, 22-23 (D.D.C. 2003) (dismissing Plaintiff’s due process

claim because she was able to appeal her termination to the

Superior Court)). However, defendants do not acknowledge Dr.

Cohen’s essential claim: that the Sixth Master Agreement is

constitutionally inadequate. See generally id.

The Court finds that Dr. Cohen has stated a due process

claim because the Sixth Master Agreement does not provide for

29 independent review of the merits of a termination decision when

the Association refuses to bring the employee’s appeal to

arbitration. As previously discussed, under the Sixth Master

Agreement, a faculty member is entirely at the mercy of the

Association if the President upholds his termination: “[t]he

Association, and only the Association” “may” commence an

arbitration proceeding. Id. at art. XI, § (C)(1)(b), art. IX, §

D(7)(emphasis added). 5 If the Association declines to arbitrate,

there is no further process available under the Sixth Master

Agreement. At that point, an employee’s only option is to appeal

the Association’s decision to the PERB as an unfair labor

practice pursuant to the CMPA. D.C. Code §§ 1-605.02(3),(12).

The PERB’s decision is appealable to the Superior Court. 1-

617.13(c). If the PERB and/or the Superior Court finds that the

Association’s decision was not unfair, UDC’s termination

decision will never be reviewed.

Contrary to the defendants’ assertions, Dr. Cohen’s

predicament is distinct from the facts in Guerrero. In that

case, the plaintiff was subject to an earlier version of UDC’s

Master Agreement and was “afforded an administrative process

through which she could raise any challenges to the decision

5 Article XI – “Disciplinary/Adverse Action” refers to Article IX “Grievance Procedures” for arbitration procedures. 30 before the termination became effective, coupled with a judicial

appeal [to the Superior Court.]” 251 F. Supp. 2d at 22-23

(emphasis added). This differs from the Master Agreement that

governed Dr. Cohen’s employment with UDC. Pursuant to the Sixth

Master Agreement, independent review is limited to whether the

Association’s refusal to arbitrate was unfair. See §§ 1-

605.02(3), 1-617.13(c). This independent review does not,

therefore, reach the merits of the termination decision. The

Court recognizes that 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.” Black v. District of

Columbia, 134 F. Supp. 3d 255, 261 (D.D.C. 2015)(quoting Owens

v. District of Columbia, 923 F. Supp. 2d 241, 250 (D.D.C. 2013)

and citing Mathews, 424 U.S. at 321). However, Dr. Cohen does

not plead that the CMPA is unconstitutional. Indeed, because the

Sixth Master Agreement was exclusive, the CMPA’s layers of

judicial review were unavailable to Dr. Cohen.

It well may be, after the benefit of discovery, that the

Sixth Master Agreement in fact satisfies due process. See, e.g.,

Hudson v. City of Chicago, 374 F.3d 554, 554 (7th Cir.

2004)(concluding that a collective bargaining agreement

satisfied due process, even when union refused to initiate

appellate procedures on plaintiffs’ behalf, because the

31 plaintiffs “could have sued the union”). However, the

defendants’ motion to dismiss does not confront Dr. Cohen’s

facial challenge to the Sixth Master Agreement and cites no

precedent upon which this Court could find in its favor.

Instead, the defendants merely conclude that Dr. Cohen received

the process he was due when he appealed to President Sessoms,

without considering whether due process requires an independent

review of UDC’s decision.

b. Municipal Liability

Assuming Dr. Cohen stated a due process violation, the

defendants argue that his claim must be dismissed because he has

not pled that any insufficient process was the result of a UDC

policy or custom. See Defs.’ Mot., ECF No. 24 at 21-22. The

Court disagrees. As stated above, a municipality can be found

liable under Section 1983 only if it itself caused the

constitutional violation. City of Canton, 489 U.S. at 385. Dr.

Cohen must therefore allege that UDC “deliberately” pursued the

problematic policy, establishing an “affirmative link” between

the Sixth Master Agreement and the due process violation.

Oklahoma City v. Tuttle, 471 U.S. 808, 823 (1985). There is no

“heightened pleading standard” in alleging municipal liability.

Faison v. District of Columbia, 907 F. Supp. 2d 82, 85 (D.D.C.

2012). “At the pleading stage, only an allegation of the

existence of a policy, practice, or custom and its causal link

32 to the constitutional deprivation suffered is required.” Maniaci

v. Georgetown Univ., 510 F. Supp. 2d 50, 64 (D.D.C. 2007).

Moreover, when “a plaintiff claims that a particular municipal

action itself violates federal law, or directs an employee to do

so, resolving these issues of fault and causation is straight

forward.” Bd. Of Cty. Cmm’rs of Bryan Cty. v. Brown, 520 U.S.

397, 404-05 (1997). Once a Court concludes that the municipal

action itself is unconstitutional, it can easily find “that the

municipal action was the moving force behind the injury . . . .”

Id. Such is the case here.

Dr. Cohen established that UDC caused the underlying

violation because it undeniably negotiated and ratified the

Sixth Master Agreement, an official “agreement made between the

[UDC] Faculty Association . . . and the [UDC] Board of

Trustees.” Sixth Master Agreement, ECF No. 22-1, art. I. This

Agreement, as discussed, is the exclusive policy by which UDC

employees may resolve grievances. See id. at art. IX, §§ B(2-3),

art. XI, § A(1). Its very purpose is to create municipal policy:

it “set[s] forth terms and conditions of employment” for public

employees. Id., art. II; see Monell, 436 U.S. at 694 (finding

that the New York Board of Education’s unconstitutional

maternity leave policy “unquestionably involves official policy

as the moving force of the constitutional violation”). When, as

here, a challenged policy is “properly made by that government's

33 authorized decision makers, it surely represents an act of

official government ‘policy’ . . . . ” Pembaur v. City of

Cincinnati, 475 U.S. 469, 481 (1986).

Because Dr. Cohen pled that the Sixth Master Agreement

deprived him of a protected property interest without due

process and because the Sixth Master Agreement is a municipal

policy, the defendants’ motion to dismiss Dr. Cohen’s municipal

Section 1983 claim is DENIED.

2. Dr. Cohen States a Due Process Claim Against Individual Defendants President Sessoms and Provost Baxter, but Fails to State a Claim Against Professor Steadman

While Dr. Cohen’s complaint could certainly be more clearly

pled, the Court understands him to allege that the three

individual defendants, acting in their individual capacities,

deprived him of due process in three ways: (1) by implementing

and enforcing the Sixth Master Agreement; (2) by failing to

adhere to the Sixth Master Agreement’s procedural requirements;

and (3) by targeting him for termination for “wholly arbitrary

and invidious reasons.” Second Am. Compl., ECF No. 22 ¶¶ 37

(incorporating ¶¶ 10, 11, 13-17, 24-30, 34-36), 38-40. The

defendants respond that there has been no due process violation

because Dr. Cohen received notice and an opportunity to respond

before he was terminated. Defs.’ Mot., ECF No. 24 at 20-22.

34 To withstand the motion to dismiss, Dr. Cohen must allege

that each defendant through his or her “own individual actions,

has violated the Constitution.” Elkins v. District of Columbia,

690 F.3d 554, 564 (D.C. Cir. 2012)(quoting Iqbal, 556 U.S. at

676). Therefore, Dr. Cohen must plead that Professor Steadman,

Provost Baxter, and President Sessoms each deprived him of due

process. With this pleading requirement in mind, the Court

examines the allegations against each individual defendant.

a. Professor Vernise Steadman

Dr. Cohen’s Section 1983 claim against Professor Steadman

must be dismissed because he has not pled any facts connecting

her to the alleged constitutional violation. See Iqbal, 556 U.S.

at 676 (“[In Section 1983 suits] a plaintiff must plead

that each . . . defendant, through the official's own

individual actions, has violated the Constitution.”). Dr. Cohen

only alleges that Professor Steadman “took no action” when she

received his 2008-2009 school year evaluation and did not submit

it to school administrators “deliberately in order to terminate

[him].” Second Am. Compl., ECF No. 22 ¶¶ 10, 11.

Taking these allegations as true, Dr. Cohen does not argue

that Professor Steadman violated his due process rights. Her

inaction is completely unrelated to his alleged injury that he

was denied notice and an opportunity to respond under the Sixth

Master Agreement. While her alleged inaction may have

35 contributed to the causes underlying the termination, Dr. Cohen

does not claim that Professor Steadman took any action to

terminate him without due process and the complaint does not

allege that she implemented the Sixth Master Agreement. See

generally id. Dr. Cohen’s claim against Professor Steadman must

therefore be dismissed because he establishes no “affirmative

link” between her actions (or lack thereof) and his

constitutional injury. Rizzo v. Goode, 423 U.S. 362, 371 (1976).

b. Provost Graeme Baxter and President Allen Sessoms

Dr. Cohen’s allegations against Provost Baxter and

President Sessoms are similar. While Dr. Cohen’s argument is far

from clear, the Court understands him to allege that they both

denied him due process when they terminated him pursuant to the

Sixth Master Agreement. First, he pleads that Provost Baxter

enforced the school’s unconstitutional policy when she sent a

termination statement of cause invoking the Sixth Master

Agreement’s disciplinary process. Second Am. Compl, ECF No. 22 ¶

17 (citing and attaching Termination Letter, ECF No. 22-3); see

also English, 717 F.3d at 971 (“[The Court] may consider

attachments to the complaint as well as the allegations

contained in the complaint itself.”). Next, he pleads that

President Sessoms upheld his termination when he denied the

appeal pursuant to the Sixth Master Agreement. Second Am.

36 Compl., ECF No. 22 ¶ 26 (citing and attaching Denial Letter, ECF

No. 22-5).

Unlike the claim against Professor Steadman, the alleged

actions that Provost Baxter and President Sessoms took to

terminate Dr. Cohen pursuant to the plausibly unconstitutional

Sixth Master Agreement are “connected to [Dr. Cohen’s]

constitutional harm.” McGinnis v. District of Columbia, 65 F.

Supp. 3d 203, 217 (D.D.C. 2014); see also Dodds v. Richardson,

614 F.3d 1185, 1199 (10th Cir. 2010)(“Section 1983 allows a

plaintiff to impose liability upon a defendant-supervisor who .

. . implements, or in some other way possesses responsibility

for the continued operation of a policy the enforcement . . . of

which [subjects the plaintiff] . . . to the deprivation of any

rights secured by the Constitution.”)(internal citations

omitted); OSU Student Alliance v. Ray, 669 F.3d 1053, 1076 (9th

Cir. 2012) (“Advancing a policy that requires subordinates to

commit constitutional violations is always enough for Section

1983 liability . . . so long as the plaintiff’s constitutional

injury in fact occurs pursuant to the policy.”).

Not only do the defendants not address this argument in

their motion to dismiss, but they do not address any argument

against the individual defendants. Instead they rely on the same

conclusory and sparsely-supported argument that Dr. Cohen

received the process he was due. See generally Defs.’ Mot., ECF

37 No. 24. For the reasons discussed above, the Court disagrees.

Without supporting precedent or persuasive argument to the

contrary, Dr. Cohen’s claim against Provost Baxter and President

Sessoms survives, crossing “the line from conceivable to

plausible.” Iqbal, 556 U.S. at 680.

Second, Dr. Cohen alleges that Provost Baxter and President

Sessoms denied him due process when they failed to adhere to the

Sixth Master Agreement’s procedures. See Second Am. Compl., ECF

No. 22 ¶ 27. Notably, with the exception of one allegation, this

argument is only raised in Dr. Cohen’s opposition. See Pl.’s

Opp’n, ECF No. 25 at 13-15. 6 The Court “need not consider any

claims presented for the first time in [Dr. Cohen’s] opposition”

because a “plaintiff may not amend his complaint through his

opposition . . . .” Jones v. Castro, 168 F. Supp. 3d 169, 181

(D.D.C. 2016).

Accordingly, the Court will consider only the procedural

defect articulated in Dr. Cohen’s complaint: that defendants

violated his due process rights when he was not given the ninety

days’ “notice” that he was supposedly entitled to under the

6 The procedural violations alleged against the defendants include: not initiating the disciplinary process within 90 days as required, invoking an improper ground for removal, requiring an evaluation when one was not necessary, and failing to adequately address all of Dr. Cohen’s arguments in denying his appeal. Id. 38 Sixth Master Agreement. Second Am. Compl., ECF No. 22 ¶ 27

(citing Sixth Master Agreement, ECF No. 22-1 art. XI § A(8)). 7 In

reviewing the cited and attached provision, however, Dr. Cohen’s

statement does not comport with the Sixth Master Agreement’s

text. Subsection A(8) does not require that UDC give an employee

ninety days’ “notice,” but rather it requires that the

University initiate the adverse action within ninety days after

the occurrence of the event warranting discipline. Sixth Master

Agreement, ECF No. 22-1 art. XI § A(8).

Moreover, taking these allegations as true, the claim that

Dr. Cohen’s termination was not procedurally perfect is not

relevant to his particular constitutional injury. “A breach of

state procedural requirements is not, in and of itself, a

violation of the Due Process Clause.” Payne v. District of

Columbia, 808 F. Supp. 2d 164, 174 (D.D.C. 2011) (quotes and

citations omitted). Dr. Cohen does not plead that any procedural

defect in following the Sixth Master Agreement caused his due

process deprivation. Rather, he pleads that the Agreement itself

caused the violation because it does not provide a

constitutionally adequate opportunity to be heard.

7 Dr. Cohen cited Article IX which does not contain a section A(8), but after a careful review of the Article and the Sixth Master Agreement, the Court believes that Dr. Cohen intended to cite Article XI § A(8), which references a ninety day time limit. 39 Finally, Dr. Cohen alleges that President Sessoms and

Provost Baxter “targeted” him for termination by denying him due

process for “wholly arbitrary and invidious reasons.” Second Am.

Compl., ECF No. 22 ¶¶ 24, 25, 27, 36, 40. Dr. Cohen seems to

allege that he was discriminated against on account of his age,

id. at ¶ 24, without actually bringing a discrimination claim.

Other allegations read like a “class of one” equal protection

claim – that is, he seems to argue that the defendants

irrationally treated him differently from other similarly

situated employees, not based on his membership in a particular

class. See Engquist v. Oregon Dep’t of Agric., 553 U.S. 591, 597

(2008). Not only are discrimination claims and equal protection

claims not due process claims, but the “class of one” theory is

also not cognizable in public employment cases. Id.

In sum, for the reasons articulated, the Section 1983 claim

against Professor Steadman in her individual capacity is

DISMISSED. However, Dr. Cohen has stated a Section 1983 claim

against Provost Baxter and President Sessoms in their individual

capacities insofar as he alleged that they terminated him

pursuant to the Sixth Master Agreement.

3. Dr. Cohen Fails to State a Bivens Claim

Dr. Cohen reiterates the same due process arguments in his

Bivens claim against all three Defendants in their individual

capacities. Second Am. Compl., ECF No. 22 ¶¶ 37-41. In response,

40 the defendants again argue that Dr. Cohen failed to allege that

they violated his constitutional rights because he was provided

him with notice and an opportunity to respond.

“A Bivens suit is an action against a [government] officer

seeking damages for violations of the plaintiff's constitutional

rights. These suits are . . . actions against [government]

officers in their individual capacity . . . .” Simpkins v.

District of Columbia Government, 108 F.3d 366, 368 (D.C. Cir.

1997). Like their Section 1983 counterparts, Bivens claims must

“at least” allege that the defendant official was personally

involved in the illegal conduct. Id. at 369. 8 However, “any

freestanding damages remedy for a claimed constitutional

violation has to represent a judgment about the best way to

implement a constitutional guarantee”; a Bivens claim is

therefore not an “automatic entitlement no matter what other

means there may be to vindicate a protected interest.” Wilkie v.

Robbins, 551 U.S. 537, 550 (2007). In “most cases” the Supreme

8 Qualified immunity protects government officials from civil liability when their conduct does not violate “clearly established statutory or constitutional rights of which a reasonable person would have known.” Int’l Action Ctr. v. United States, 365 F.3d 20, 24 (D.C. Cir. 2004). “At the motion to dismiss stage . . . . the defendant bears the burden of pleading and proving qualified immunity.” Dickey v. United States, 174 F. Supp. 3d 366, 369 (D.D.C. 2016). Because the defendants do not raise a qualified immunity defense, the Court does not address whether they may be entitled to it. McGinnis, 65 F.Supp.3d at 220.

41 Court has “found a Bivens remedy unjustified.” Id. The decision

whether to recognize a Bivens remedy “is not about ensuring that

every violation of a constitutional right is vindicated.” Davis

v. Billington, 681 F.3d 377, 381 (D.C. Cir. 2012). For this

reason, the Court must not imply a Bivens remedy when the

legislature has adopted a “comprehensive remedial scheme,” even

when “the existing scheme did not afford complete relief to the

plaintiff.” Id. at 381-82 (declining to recognize a Bivens claim

for the remediless plaintiff because the Civil Service Reform

Act was a “comprehensive remedial scheme” to administer public

employment rights). Likewise, a Court should not imply a Bivens

remedy when “alternative, existing” processes provide adequate

protection, Wilkie, 551 U.S. at 550, or when state law

authorizes adequate damages, Minneci v. Pollard, 565 U.S. 118,

120 (2011).

Therefore, the defendants argue that there is no basis to

“extend Bivens liability to any new . . . category of

Defendants.” Defs.’ Mot., ECF No. 24 at 22-23 (quoting

Correction Servs. Corp. v. Malesko, 534 U.S. 61, 68 (2001)).

Significantly, Dr. Cohen fails to address this argument in his

opposition. Indeed, he makes no argument to support his Bivens

claim whatsoever. See generally Pl.’s Opp’n, ECF No. 25. “It is

well understood in this Circuit that when a plaintiff files an

opposition to a dispositive motion and addresses only

42 certain arguments raised by the defendant, a court may treat

those arguments that the plaintiff failed to address as

conceded.” Banner Health v. Sebelius, 905 F. Supp. 2d 174, 185

(D.D.C. 2012) (quoting Hopkins v. Women's Div., Gen. Bd. of

Global Ministries, 284 F. Supp. 2d 15, 25 (D.D.C.

2003) (citing FDIC v. Bender, 127 F.3d 58, 67–68 (D.C. Cir.

1997)). In light of the well-settled hesitation to extend Bivens

and Dr. Cohen’s lack of opposition, the Bivens claim against the

individual defendants is DISMISSED.

V. Conclusion

Accordingly, for the reasons set forth in this Memorandum

Opinion, the defendants’ motion to dismiss is GRANTED IN PART

and DENIED IN PART. Dr. Cohen’s remaining claim is his due

process claim pursuant to Section 1983 against municipal

defendant the UDC Board of Trustees and individual defendants

President Sessoms and Provost Baxter. A separate Order

accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge April 24, 2018