UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
KELVIN GARCIA, Plaintiff v. Civil Action No. 22-1487 (CKK) DISTRICT OF COLUMBIA, Defendant.
MEMORANDUM OPINION (March 14, 2024)
Plaintiff Kelvin Garcia, a Hispanic male, alleges that Defendant District of Columbia
(“District of Columbia” or “District”) terminated his employment as a District of Columbia
Metropolitan Police Department (“MPD”) officer after taking a promotional exam because of
racial animus against Hispanic officers. See generally [26] Third Amended Complaint
(“Compl.”) at 1–2. Now pending before the Court is Defendant’s [27] Motion to Dismiss Count
One of the Complaint, in which they argue that Plaintiff has failed to plausibly allege municipal
liability as is required. Upon consideration of the pleadings,1 the relevant legal authorities, and
the record as a whole, the Court DENIES Defendant’s [27] Motion to Dismiss.
I. BACKGROUND
The Court herein recites only those allegations necessary for the resolution of the issue
presented by the pending partial Motion to Dismiss. Additionally, at this stage, the Court accepts
1 The Court’s consideration has focused on the following documents: • Def.’s Mot. to Dismiss Count I of the Complaint (“Def.’s Mot.”), ECF No. 27; • Pl.’s Mem. in Opp’n to Mot. to Dismiss (“Pl.’s Opp’n”), ECF No. 30; and • Def.’s Reply in Support of Mot. to Dismiss (“Def.’s Reply”), ECF No. 31. In an exercise of its discretion, the Court finds that holding oral argument in this action would not be of assistance in rendering a decision. See LCvR 7(f). 1 as true the well-pleaded allegations in Plaintiff’s Complaint.
A. The Underlying Offense Giving Rise to Plaintiff’s Termination
Plaintiff Kelvin Garcia is an Afro-Latino male who was an MPD officer. Compl. ¶¶ 1, 4.
In September 2017, he sat for the MPD Seargant’s promotional exam alongside approximately
800 officers. Id. ¶¶ 4–5. He was seated at a table with one other officer, who was white,
approximately four to six feet away. Id. ¶ 6. Halfway through the exam, one of the proctors
tapped Plaintiff and the other officer on the shoulder and told them to split apart. Id. ¶ 9.
Plaintiff was disrupted and distracted, but quickly complied and returned to work on the exam.
Id. ¶ 10. Approximately ten minutes later, the proctor returned and told Plaintiff to move his seat
to a table by himself. Id. ¶ 11. Plaintiff’s concentration was badly destabilized, but he finished
the exam nevertheless. Id. ¶¶ 11–12.
Afterwards, the proctor emailed the testing vendor and asked them to look up Plaintiff’s
results, but not those of the officer next to him. Id. ¶ 13. The testing vendor provided the proctor
Plaintiff’s test on or about September 30, 2017 and concluded that Plaintiff had been cheating off
the other officer. Id.; see also Compl. at 2. On or about October 12, 2017, Plaintiff was notified
that the MPD’s Internal Affairs Division (“IAD”) was going to recommend him for termination.
Id. ¶ 14.
B. MPD Processes Leading to Plaintiff’s Termination
At MPD, the IAD’s recommendations first go to the Chief of Police, who decides
whether to send the accused officer to a “trial board.” Id. at ¶¶ 14–15. It can take a long time for
the trial board to be convened and hold proceedings, as typically both MPD management and the
accused take time to build their case and gather evidence. Id. ¶ 20. The trial board then conducts
a hearing and determines the next steps, including any discipline. Id. ¶ 16. Appointments to the
2 trial board are made by the Chief of Police; board members who displease the Chief of Police in
their decisions are asked not to serve again. Id. ¶ 17. The trial board does not always uphold the
recommendation of the IAD; many officers who have been recommended for termination have
had such recommendations rejected by the trial board. Id. ¶ 19. The Chief of Police can choose
not to follow the trial board’s decision and, for example, keep an officer employed over the
board’s recommendation to terminate. Id. ¶ 21. Both before and after the board’s proceedings,
the Fraternal Order of Police (“Union”) often negotiates with management, including the Chief
of Police, to reduce discipline. Id. ¶¶ 18, 21.
In this case, the IAD recommended Plaintiff’s termination in October 2017. Id. ¶ 14.
Their recommendation went to the then-Chief of Police, Peter Newsham, who sent it to the trial
board. Id. ¶ 45. Plaintiff’s trial board took place in early 2019. Id. ¶ 22. The board did not
render judgment until March 2019, during which time he remained employed at MPD. Id.
Because termination was such an extremely harsh disciplinary action for his alleged
transgression, Plaintiff believed that negotiations between the Union and the Chief of Police
would result in a reduction of his discipline to a suspension. Id. ¶ 23.
Nevertheless, Plaintiff took various steps challenging this determination, including filing
a grievance of the termination. Id. ¶ 25. Many officers who are terminated by the trial board
have their terminations reversed––or their discipline otherwise reduced––through the grievance
process, during which the accused participates in an arbitration hearing led by a neutral arbitrator
selected by both the Union and MPD management. Id. ¶¶ 26–28. In November 2020, Plaintiff
received an arbitration decision upholding MPD’s decision to terminate him. Id. ¶ 29.
Plaintiff also filed an internal EEO complaint and EEOC charge after receiving the initial
decision of the trial board. Id. ¶¶ 31–32. In these filings, Plaintiff asserted that he was targeted
3 for scrutiny during the exam and treated disparately because he was Hispanic, and that other
officers who were previously suspected of cheating were not recommended for termination. Id. ¶
33–34.
C. Plaintiff’s Allegations of Discrimination
Plaintiff alleges that MPD has a history of giving excessive disciplinary discretion to
white managers and leaders and allowing them to use that discretion to harm minorities,
especially Hispanic officers. Id. ¶ 36. Many Hispanic officers have complained about this to
MPD leadership but have been ignored. Id. ¶ 37.
In this case, Plaintiff raised concerns with management that he was being singled out for
excessive discipline, but he was ignored and discredited. Id. ¶ 38. Termination is not the
common consequence for cheating on a promotional exam. Id. ¶ 40. In the past, two non-
Hispanic officers were caught cheating in promotional exams and neither was terminated
(Dianne Groomes, white female, 2010; and Ernest Cole, Black male, 2016). Id. ¶¶ 35, 39.
Plaintiff also alleges that MPD has a history of allowing Chiefs of Police to make
employment decisions based on discretion, and the Chiefs have exercised their discretion in a
manner that is harmful to Hispanic officers. Id. ¶ 41. Officers of color are referred by the Chief
of Police to the trial board for disciplinary action at a disproportionately high rate compared to
white officers. Id. ¶¶ 15, 44. That the Chief of Police appoints members to the trial board then
influences the outcomes of the boards. Id. ¶ 43. Peter Newsham, the Chief of Police at the time
of Plaintiff’s disciplinary action, had a history and pattern and practice of disproportionately
harsh disciplinary treatment of Latino officers. Id. ¶ 45.
In June 2018, a Latino male officer, Officer Hiram Rosario, was sent to the trial board by
Chief Newsham after a recommendation of termination by the IAD for allegedly hitting a
4 gay/transgender person. Id. ¶ 46. Most officers accused of such behavior are not recommended
for termination unless they have previous disciplinary action in their employment history;
Officer Rosario did not have such previous disciplinary history, but he was nevertheless
recommended for termination. Id. ¶ 47. The trial board found him not guilty of assault but
recommended demotion, which Chief Newsham approved. Id. ¶ 48. Officer Rosario filed a
complaint against Chief Newsham alleging, among other things, that the disciplinary action
against him was motivated by anti-Latino animus. Id. ¶ 49. Officer Rosario filed a grievance to
challenge his demotion and prevailed at arbitration, at which time the neutral arbiter concluded
that the demotion was overly harsh and disparate punishment. Id. ¶¶ 50–51.
D. Procedural History
Plaintiff filed the present action in May 2022 and his Third Amended Complaint in
March 2023, bringing three counts: Count One, alleging a violation of 42 U.S.C. § 1981,
enforced via § 1983, for discrimination based on race and ethnicity; Count Two, alleging a
violation of Title VII of the Civil Rights Act of 1967 for disparate treatment based on race and
ethnicity; and Count Three, alleging a violation of the D.C. Human Rights Act for disparate
treatment based on race and ethnicity. Compl. at 10–14.
Defendant District of Columbia filed the pending Motion to Dismiss Count One under
Federal Rule of Civil Procedure 12(b)(6). See generally Def.’s Mot. That Motion is now fully
briefed and ripe for the Court’s review.
II. LEGAL STANDARD
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a
complaint on the grounds that it “fail[s] to state a claim upon which relief can be granted.” Fed.
R. Civ. P. 12(b)(6). The Federal Rules of Civil Procedure require that a complaint contain “‘a
5 short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to
‘give the defendant fair notice of what the… claim is and the grounds upon which it rests.’” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957)). “[A] complaint [does not] suffice if it tenders ‘naked assertion[s]’ devoid of ‘further
factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S.
at 557). Rather, a complaint must contain sufficient factual allegations that, if true, “state a
claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. In
evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim, a court must construe
the complaint in the light most favorable to the plaintiff and accept as true all reasonable factual
inferences drawn from well-pleaded factual allegations. See In re United Mine Workers of Am.
Employee Benefit Plans Litig., 854 F. Supp. 914, 915 (D.D.C. 1994) (TFH).
III. DISCUSSION
In Count One, Plaintiff alleges a violation of 42 U.S.C. § 1981, enforced via § 1983, for
discrimination based on race and ethnicity. Defendant argues that the Court should dismiss
Count One because Plaintiff fails to plausibly allege the District’s municipal liability as required
under Section 1983. The Court finds that Plaintiff has sufficiently alleged municipal liability at
this stage to survive a motion to dismiss.
A. Undisputed Elements of Sections 1981 and 1983
To establish a Section 1981 violation, a plaintiff must “identify an impaired ‘contractual
relationship,’ under which the plaintiff has rights.” Domino’s Pizza, Inc. v. McDonald, 546 U.S.
470, 476 (2006) (citing 42 U.S.C. § 1981(b)). Plaintiff was in a contractual employment
6 relationship with MPD as an employee, Pl.’s Opp’n at 5; Dickerson v. District of Columbia, 315
F. Supp. 3d 446, 453 (D.D.C. 2018) (PLF), which Defendant does not contest, see Def.’s Mot. at
4 (not addressing this issue).
When a Section 1981 claim is brought against a municipality, as it is here, a plaintiff
must pursue their remedy through Section 1983. Dickerson, 315 F. Supp. 3d at 451. Under that
section, a municipality is only liable if the plaintiff satisfies a two-part inquiry: first, the
complaint must state “a claim for a predicate constitutional violation,” and second, “a claim that
a custom or policy of the municipality caused the violation.” Baker v. District of Columbia, 326
F.3d 1302, 1306 (D.C. Cir. 2003) (citations omitted); see also Monell v. Dep’t of Soc. Servs., 436
U.S. 658, 690–95 (1978).
Defendant does not challenge the first element regarding Plaintiff’s alleged constitutional
violation. See Def.’s Mot. at 5 (not addressing this issue). Instead, Defendant focuses on the
second part of the inquiry.
B. Municipal Liability Under Section 1983
To satisfy the second element of Section 1983 outlined above, a plaintiff must show “a
direct causal link between a municipal policy or custom and the alleged constitutional
deprivation.” City of Canton v. Harris, 489 U.S. 378, 385 (1989). This, too, can be separated
into two elements: first, the existence of a policy or custom; and second, causation. Defendant
questions both, which the Court will now address in turn. See Def.’s Mot. at 6 (arguing that
“Plaintiff’s allegations do not establish a pervasive policy or custom” and that he does not
present “facts showing that a municipal custom or policy was the moving force behind his
termination”).
7 1. Policy or Custom
A single instance of unconstitutional activity, without more, is likely insufficient to show
a policy or custom. See Hamilton v. District of Columbia, 720 F. Supp. 2d 102, 113 (D.D.C.
2010) (JDB). But a plaintiff can show the existence of municipal policy or custom in various
ways, including where the unconstitutional discrimination could be “so widespread as to
constitute a custom, practice or policy,” Reed v. Dist. of Columbia, 474 F. Supp. 2d 163, 168
(D.D.C. 2007) (RMC); see also Monell v Dep’t of Soc. Serv. of City of New York, 436 U.S. 658,
690–94 (1978) (explaining that a practice need not be “authorized by written law,” but may be
“so permanent and well settled as to constitute a ‘custom or usage’ with the force of law”);
through “the action of a policy maker within the government,” Baker, 326 F.3d at 1306; or where
“a policymaker [] knowingly ignore[s] a practice that was consistent enough to constitute
custom,” Warren v. District of Columbia, 353 F.3d 36, 39 (D.C. Cir. 2004).
The Court finds that Plaintiff has satisfactorily alleged a municipal policy or custom at
this stage. Although not a model of clarity, Plaintiff’s Complaint and opposition brief set forth
the allegation that MPD Chiefs of Police, including Chief Newsham, make discretionary
employment and disciplinary decisions that are disproportionately harsher on Hispanic officers.
See, e.g., Pl.’s Opp’n at 6 (stating that “Plaintiff [] asserts extensive patterns of ongoing
management behaviors that are discriminatory in nature” and referencing actions taken by the
Chief of Police). Additionally, through their oversight and participation in the entire disciplinary
process, the Chiefs of Police are “aware of disparate and harsher disciplinary treatment of
[Hispanic officers] at MPD” by others involved in the process and opt not to quell this behavior.
Id. at 7–8; see also id. at 9 (“[F]or all intents and purposes, Plaintiff’s Section 1981 via 1983
claim, rises and falls on the extent to which Plaintiff can establish that the Chief of Police was
8 aware of, and condoned the deep-seated and consistent race discrimination at MPD.”).
It is undisputed that the Chief of Police is the final municipal policymaker as to the MPD.
Sanders v. District of Columbia, 85 F. Supp. 3d 523, 530–31 (D.D.C. 2015) (PLF).
Plaintiff offers the following facts to support his allegations establishing a municipal
policy: the “longstanding” fact that officers of color are referred by the Chief of Police to the
trial board for disciplinary action at a disproportionately high rate compared to white officers,
Compl. ¶¶ 15, 44; the fact that the Chief of Police appoints and influences the trial board
members in their decision-making, id. ¶¶ 17, 43; the fact that the Chief of Police sometimes
negotiates with the Union prior to the trial board convening to reduce charges, id. ¶ 18; see also
Pl.’s Opp’n at 6; the fact that two non-Hispanic officers were caught cheating in promotional
exams and neither was terminated, but Plaintiff, a Hispanic man, was terminated, Compl. ¶¶ 35,
39; the fact that many Hispanic officers have complained to MPD leadership about the disparate
discipline they have experienced, id. ¶ 37; the fact that Chief Newsham sent a Hispanic male
officer, Officer Rosario, to the trial board for his actions that would not normally warrant such
discipline, id. ¶¶ 46–47; and the fact that Officer Rosario filed a complaint against Chief
Newsham alleging that the disciplinary action against him was motivated by anti-Latino animus,
id. ¶ 49; in addition to the facts of his own case.
Defendant argues that Plaintiff makes only “bald assertion[s]” and “conclusory
allegations,” Def.’s Mot. at 6–7, but the Court disagrees. The Court does acknowledge that
Plaintiff’s factual support is far from manifold, and the comparison to Officer Rosario is less
than perfect. See Def.’s Reply at 2 (explaining that the officer “was disciplined for conduct and
on findings entirely distinguishable from Plaintiff’s”). However, as enumerated above, Plaintiff
does provide factual bases for his allegations, which, if liberally construed as the Court is
9 required to do at the motion to dismiss stage, adequately pleads that there was a municipal policy
or custom. See Baker, 326 F.3d at 1306 (“if a complaint alleging municipal liability under §
1983 may be read in a way that can support a claim for relief, thereby giving the defendant fair
notice of the claim, that is sufficient”); compare Hamilton v. District of Columbia, 720 F. Supp.
2d 102, 113 (D.D.C. 2010) (JDB), with Plater v. District of Columbia Dept. of Transp., 530 F.
Supp. 2d 101 (D.D.C. 2008) (ESH) (dismissing plaintiff’s claim where she “alleges no facts to
support her claim”) (emphasis in original); Jackson v. District of Columbia, 949 F. Supp. 2d 257,
261 (D.D.C. 2013) (CKK) (dismissing plaintiff’s claim where “the Complaint offers no factual
allegations as to what policy, rule, practice or custom cause the violation of his constitutional
rights”); Sheikh v. District of Columbia, 77 F. Supp. 3d 73, 85 (D.D.C. 2015) (CKK) (dismissing
plaintiff’s claim where plaintiff included “no more than a conclusory recital of the elements of a
claim pursuant to Monell, together with the alleged predicate constitutional violations”).
In sum, the Court finds that Plaintiff has sufficiently pleaded a municipal policy or
custom: that the Chief of Police gave disproportionately harsher disciplinary decisions to
Hispanic officers and/or was aware of others in the process generating disproportionately harsher
disciplinary decisions for Hispanic officers.2
2 To the extent that Plaintiff sought to establish some other municipal policy through another theory, the Court finds that this fails. Plaintiff argues that he “crosses the [] hurdle” of showing municipal liability “by asserting [] specific EEO policies.” Pl.’s Opp’n at 6. The Court cannot identify any such assertions in Plaintiff’s Complaint; the closest language the Court could identify is Plaintiff’s allegation that “MPD’s EEO department did not take [Officer Rosario’s] claim seriously” and “dismissed [it] in three days.” Compl. ¶ 50. Certainly this does not establish a municipal policy. Plaintiff also points to “long-standing customs at MPD,” Pl.’s Opp’n at 6, but this conclusory language likewise does not establish a municipal policy. Finally, Defendant seems to interpret Plaintiff’s Complaint as arguing that the “‘policy’ of vesting the Chief of Police with [] discretion” was a basis of municipal liability. Def.’s Mot. at 6. While Plaintiff does criticize the vast discretion afforded the Chief of Police, the Court takes this to be a misinterpretation of Plaintiff’s argument; it is not the vesting of discretion that is the “policy,” but rather the Chief’s actions that he takes with that discretion. 10 2. Causation
Next, a plaintiff must allege an “‘affirmative link,’ such that a municipal policy was the
‘moving force’ behind the constitutional violation.” Baker, 326 F.3d at 1306 (citations omitted).
The Court finds that Plaintiff has sufficiently alleged that the municipal policy was the moving
force behind his allegedly discriminatory termination.
Defendant argues that Plaintiff does not “offer any facts at all about the decision maker
on his termination sufficient to plausibly allege any connection.” Def.’s Mot. at 7. However,
Plaintiff alleges that Chief of Police Peter Newsham “was personally involved and the driving
force behind [his] termination decision.” Pl.’s Opp’n at 1, see also id. at 7. As the Complaint
reads, Chief Newsham was personally involved throughout Plaintiff’s disciplinary process: he
referred Plaintiff to the trial board, despite the IAD’s recommendation being not the normal
consequence for the alleged offensive conduct; he had appointed that board and influenced them;
and he accepted the board’s decision, ultimately leading to Plaintiff’s termination. Compl. ¶¶
15–29, 40. Additionally, as Plaintiff explains, the fact that Officer Rosario filed a complaint
regarding his disciplinary action against Chief Newsham, rather than someone else, demonstrates
that the Chief was directly involved in such disciplinary decisions. See Pl.’s Opp’n at 7–8.
The Court finds that it “may be reasonably inferred” that there is “a link between”
Plaintiff’s termination and Chief Newsham’s actions either directly participating in or endorsing
disproportionately harsher discipline being given to Hispanic officers such as Plaintiff. Brown v.
Wilhelm, 819 F. Supp. 2d 41, 44 (D.D.C. 2011) (BAH).
* * *
In sum, the Court finds that Plaintiff has satisfactorily alleged a pervasive MPD policy or
custom that was the moving force behind his termination.
11 IV. CONCLUSION
For the foregoing reasons, the Court DENIES Defendant’s [27] Motion to Dismiss Count
One of Plaintiff’s Third Amended Complaint. An appropriate Order accompanies this
Memorandum Opinion.
/s/ COLLEEN KOLLAR-KOTELLY United States District Judge