Jones v. Quintana
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Opinion
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
ALEXANDRIA JONES,
Plaintiff, Civil Action No. 08-620 (CKK) v.
JANICE QUINTANA, et al.,
Defendants.
MEMORANDUM OPINION (September 30, 2009)
Plaintiff Alexandria Jones, a former employee of the District of Columbia Office of
Unified Communications (“OUC”), brings the above-captioned lawsuit against the District of
Columbia (“D.C.” or the “District”) and Janice Quintana, Director of the OUC (collectively, with
D.C., “the Defendants”). She alleges retaliation in violation of the D.C. Whistleblower
Protection Act, D.C. Code § 1-615.51 et seq. (“WPA”) (Count I); retaliation in violation of the
D.C. Workers’ Compensation statute, D.C. Code § 32-1501 et seq. (Count II); deprivation of her
First Amendment Rights in violation of 42 U.S.C. § 1983 (Count III); failure to provide a
reasonable accommodation in violation of the Americans with Disabilities Act, 42 U.S.C. §
12101 et seq. (“ADA”) (Count IV); and retaliation in violation of the ADA, 42 U.S.C. §
12203(a) (Count V). Currently pending before the Court is Defendants’ [20] Motion to Dismiss
Plaintiff’s Amended Complaint. After a searching review of the parties’ briefing, the relevant
statutory provisions and case law, and the record of this case as a whole, the Court shall
GRANT-IN-PART and DENY-IN-PART Defendants’ [20] Motion to Dismiss. Specifically, and
for the reasons that follow: (1) With respect to Count I, Defendants’ motion is GRANTED insofar as Defendants contend that Count I must be dismissed as against Defendant Quintana, but is DENIED insofar as Defendants contend that Count I must be dismissed as against the District;
(2) With respect to Count II, Defendants’ motion is GRANTED, and Count II is dismissed in its entirety;
(3) With respect to Count III, Defendants’ motion is
(a) DENIED insofar as Defendants assert that Plaintiff has failed to sufficiently allege that she spoke out as a private citizen;
(b) GRANTED insofar as Defendants contend that Plaintiff’s Section 1983 claim against Defendant Quintana in her official capacity should be dismissed as redundant;
(c) DENIED WITHOUT PREJUDICE insofar as Defendants assert that Defendant Quintana is entitled to qualified immunity;
(D) GRANTED insofar as Defendants seek to dismiss Plaintiff’s Section 1983 claim against the District;
(4) With respect to Count IV, Defendants’ motion is GRANTED, and Count IV is dismissed in its entirety; and
(5) With respect to Count V, Defendants’ motion is DENIED.
Accordingly, at this time, the following two claims survive Defendants’ [20] Motion to
Dismiss: Count I (D.C. Whistleblower Protection Act, D.C. Code § 1-615.51 et seq.) as against
the District, and Count V (retaliation in violation of the ADA, 42 U.S.C. § 12203(a)) as against
the District. With respect to Plaintiff’s Section 1983 claim, to the extent Plaintiff asserts that she
intended to allege her Section 1983 claim against Defendant Quintana in her individual capacity
as well as in her official capacity, Plaintiff must amend her complaint, by no later than October
16, 2009, to specify that Defendant Quintana is being sued in her individual capacity and to
2 allege facts sufficient to support her claim that Defendant Quintana should be held personally
liable. If Plaintiff declines to do so, the Court shall treat her failure to timely amend as a
concession that she does not seek to assert her Section 1983 claim against Defendant Quintana in
her individual capacity.
I. BACKGROUND
A. Plaintiff’s Employment at the OUC and Defendant Quintana’s Proposed Changes to the Emergency 911 System
As set forth in the Amended Complaint, Plaintiff first became employed by the D.C.
Metropolitan Police Department in August 1998. Amended Complaint, Docket No. [19], ¶ 2
(“Am. Compl.”).1 Six months later, Plaintiff was promoted to a dispatcher position in the OUC ,
which provides centralized management of both emergency and non-emergency calls within the
District. Id. ¶ 3. Plaintiff’s primary duties at the OUC involved handling emergency 911 calls
and transmitting information to the necessary response teams. Id.
Plaintiff alleges that Defendant Quintana, in her role as Director of the OUC, proposed
various changes to the manner in which emergency and non-emergency calls would be routed to
OUC dispatchers.2 Id. ¶ 5. According to Plaintiff, she was concerned that these changes, which
allegedly involved the transferring of 311 calls back onto the 911 line, “would jeopardize the
1 In setting forth the relevant background, and in considering Defendants’ Motion to Dismiss, the Court has considered, as it must, only the “facts alleged in the complaint, any documents attached to or incorporated in the complaint, matters of which the court may take judicial notice, and matters of public record.” See E.E.O.C. v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997); Marshall Co. Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 n. 6 (D.C. Cir. 1993). 2 Although the Amended Complaint is silent as to when Defendant Quintana allegedly proposed these changes and as to when Plaintiff herself learned of the proposed modifications, it is apparent that Plaintiff, at a minimum, became aware of the proposed changes sometime on or before December 14, 2007. See Am. Compl. ¶¶ 5-7. 3 safety of residents of the District of Columbia.” Id. ¶ 7. In particular, Plaintiff believed that the
changes would result in “putting more calls in que [sic] and it was going to cause emergency
calls a delay in service.” Id. ¶ 6. Plaintiff further asserts that Defendant Quintana misrepresented
to the D.C. Council that “she had enough personnel to cover all of the phones.” Id.
B. Plaintiff’s Alleged Communications Regarding the Proposed OUC Changes
Between December 14, 2007 and January 24, 2008, Plaintiff repeatedly attempted to
bring her concerns regarding the OUC proposed changes to the attention of the D.C. Council,
Mayor Adrian Fenty and the public in general. Id. ¶¶ 7-10, 15, 23. According to Plaintiff’s
Amended Complaint, on December 14, 2007, Plaintiff sent an e-mail to members of the D.C.
Council “complaining that the proposed change in the use of the 911 telephone number would
jeopardize the safety of residents of the District of Columbia.” Id. ¶ 7. Shortly thereafter, on
December 17, 2007, Plaintiff sent another e-mail to members of the D.C. Council again
“expressing her concerns about the proposed changes in the use of the 911 emergency telephone
number.” Id. ¶ 8. Plaintiff also sent an e-mail to Mayor Fenty on December 28, 2007, similarly
“expressing her concerns about the proposed change,” and again on January 1, 2008, “asking to
meet with him to discuss her concerns regarding the proposed change.” Id. ¶¶ 9-10.
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
ALEXANDRIA JONES,
Plaintiff, Civil Action No. 08-620 (CKK) v.
JANICE QUINTANA, et al.,
Defendants.
MEMORANDUM OPINION (September 30, 2009)
Plaintiff Alexandria Jones, a former employee of the District of Columbia Office of
Unified Communications (“OUC”), brings the above-captioned lawsuit against the District of
Columbia (“D.C.” or the “District”) and Janice Quintana, Director of the OUC (collectively, with
D.C., “the Defendants”). She alleges retaliation in violation of the D.C. Whistleblower
Protection Act, D.C. Code § 1-615.51 et seq. (“WPA”) (Count I); retaliation in violation of the
D.C. Workers’ Compensation statute, D.C. Code § 32-1501 et seq. (Count II); deprivation of her
First Amendment Rights in violation of 42 U.S.C. § 1983 (Count III); failure to provide a
reasonable accommodation in violation of the Americans with Disabilities Act, 42 U.S.C. §
12101 et seq. (“ADA”) (Count IV); and retaliation in violation of the ADA, 42 U.S.C. §
12203(a) (Count V). Currently pending before the Court is Defendants’ [20] Motion to Dismiss
Plaintiff’s Amended Complaint. After a searching review of the parties’ briefing, the relevant
statutory provisions and case law, and the record of this case as a whole, the Court shall
GRANT-IN-PART and DENY-IN-PART Defendants’ [20] Motion to Dismiss. Specifically, and
for the reasons that follow: (1) With respect to Count I, Defendants’ motion is GRANTED insofar as Defendants contend that Count I must be dismissed as against Defendant Quintana, but is DENIED insofar as Defendants contend that Count I must be dismissed as against the District;
(2) With respect to Count II, Defendants’ motion is GRANTED, and Count II is dismissed in its entirety;
(3) With respect to Count III, Defendants’ motion is
(a) DENIED insofar as Defendants assert that Plaintiff has failed to sufficiently allege that she spoke out as a private citizen;
(b) GRANTED insofar as Defendants contend that Plaintiff’s Section 1983 claim against Defendant Quintana in her official capacity should be dismissed as redundant;
(c) DENIED WITHOUT PREJUDICE insofar as Defendants assert that Defendant Quintana is entitled to qualified immunity;
(D) GRANTED insofar as Defendants seek to dismiss Plaintiff’s Section 1983 claim against the District;
(4) With respect to Count IV, Defendants’ motion is GRANTED, and Count IV is dismissed in its entirety; and
(5) With respect to Count V, Defendants’ motion is DENIED.
Accordingly, at this time, the following two claims survive Defendants’ [20] Motion to
Dismiss: Count I (D.C. Whistleblower Protection Act, D.C. Code § 1-615.51 et seq.) as against
the District, and Count V (retaliation in violation of the ADA, 42 U.S.C. § 12203(a)) as against
the District. With respect to Plaintiff’s Section 1983 claim, to the extent Plaintiff asserts that she
intended to allege her Section 1983 claim against Defendant Quintana in her individual capacity
as well as in her official capacity, Plaintiff must amend her complaint, by no later than October
16, 2009, to specify that Defendant Quintana is being sued in her individual capacity and to
2 allege facts sufficient to support her claim that Defendant Quintana should be held personally
liable. If Plaintiff declines to do so, the Court shall treat her failure to timely amend as a
concession that she does not seek to assert her Section 1983 claim against Defendant Quintana in
her individual capacity.
I. BACKGROUND
A. Plaintiff’s Employment at the OUC and Defendant Quintana’s Proposed Changes to the Emergency 911 System
As set forth in the Amended Complaint, Plaintiff first became employed by the D.C.
Metropolitan Police Department in August 1998. Amended Complaint, Docket No. [19], ¶ 2
(“Am. Compl.”).1 Six months later, Plaintiff was promoted to a dispatcher position in the OUC ,
which provides centralized management of both emergency and non-emergency calls within the
District. Id. ¶ 3. Plaintiff’s primary duties at the OUC involved handling emergency 911 calls
and transmitting information to the necessary response teams. Id.
Plaintiff alleges that Defendant Quintana, in her role as Director of the OUC, proposed
various changes to the manner in which emergency and non-emergency calls would be routed to
OUC dispatchers.2 Id. ¶ 5. According to Plaintiff, she was concerned that these changes, which
allegedly involved the transferring of 311 calls back onto the 911 line, “would jeopardize the
1 In setting forth the relevant background, and in considering Defendants’ Motion to Dismiss, the Court has considered, as it must, only the “facts alleged in the complaint, any documents attached to or incorporated in the complaint, matters of which the court may take judicial notice, and matters of public record.” See E.E.O.C. v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997); Marshall Co. Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 n. 6 (D.C. Cir. 1993). 2 Although the Amended Complaint is silent as to when Defendant Quintana allegedly proposed these changes and as to when Plaintiff herself learned of the proposed modifications, it is apparent that Plaintiff, at a minimum, became aware of the proposed changes sometime on or before December 14, 2007. See Am. Compl. ¶¶ 5-7. 3 safety of residents of the District of Columbia.” Id. ¶ 7. In particular, Plaintiff believed that the
changes would result in “putting more calls in que [sic] and it was going to cause emergency
calls a delay in service.” Id. ¶ 6. Plaintiff further asserts that Defendant Quintana misrepresented
to the D.C. Council that “she had enough personnel to cover all of the phones.” Id.
B. Plaintiff’s Alleged Communications Regarding the Proposed OUC Changes
Between December 14, 2007 and January 24, 2008, Plaintiff repeatedly attempted to
bring her concerns regarding the OUC proposed changes to the attention of the D.C. Council,
Mayor Adrian Fenty and the public in general. Id. ¶¶ 7-10, 15, 23. According to Plaintiff’s
Amended Complaint, on December 14, 2007, Plaintiff sent an e-mail to members of the D.C.
Council “complaining that the proposed change in the use of the 911 telephone number would
jeopardize the safety of residents of the District of Columbia.” Id. ¶ 7. Shortly thereafter, on
December 17, 2007, Plaintiff sent another e-mail to members of the D.C. Council again
“expressing her concerns about the proposed changes in the use of the 911 emergency telephone
number.” Id. ¶ 8. Plaintiff also sent an e-mail to Mayor Fenty on December 28, 2007, similarly
“expressing her concerns about the proposed change,” and again on January 1, 2008, “asking to
meet with him to discuss her concerns regarding the proposed change.” Id. ¶¶ 9-10.
Approximately a week later, Plaintiff attempted to have an in-person conversation with Mayor
Fenty when he visited the OUC on January 7, 2008.3 Id. ¶ 11. A few days later, on January 11,
2008, Plaintiff interviewed with a local television station “to voice her concerns about the
3 Plaintiff has not specified in her Amended Complaint the reason for her attempted conversation with Mayor Fenty. See Am. Compl. ¶ 11. Given her previous e-mails to Mayor Fenty regarding the proposed OUC changes and her request to meet with him to discuss her concerns, it is nonetheless reasonable to infer, viewing the facts in a light most favorable to Plaintiff, that she attempted to speak to Mayor Fenty about the OUC proposal. 4 proposed change in the 911 emergency number.” Id. ¶ 15. Finally, on January 24, 2008, Plaintiff
testified before the D.C. Council.4 Id. ¶ 25.
C. Alleged Actions Taken By Defendants Against Plaintiff as a Result of Plaintiff’s Communications Regarding the OUC Proposed Changes
On January 10, 2008, Plaintiff was placed on administrative leave with pay by Defendant
Quintana. Id. ¶ 12. Plaintiff alleges that the only reason given for the decision to place her on
administrative leave was that “‘the Mayor was not pleased with Ms. Jones’ and indicated she was
a disgruntle [sic] and disrespectful employee.” Id. According to Plaintiff, however, she was
neither rude or disrespectful to Mayor Fenty during their discussion on January 10, 2008, as
Defendant Quintana claimed. Id. ¶ 11.
Early the next morning, on January 11, 2008, Plaintiff told her floor manager that she was
suffering mental anguish “from being wrongfully placed on leave,” and requested a claim
number so that she could file a workers’ compensation claim. Id. ¶ 13. According to Plaintiff,
her floor manager refused to provide her with a claim number and advised Plaintiff’s union
representative that he had been ordered by Defendant Quintana that he was not to provide
Plaintiff with a workers’ compensation claim number. Id.¶¶ 14, 61. Plaintiff indicates that she
was eventually issued a workers’ compensation claim number on January 17, 2008, but only after
a representative from Plaintiff’s union contacted her floor manager on Plaintiff’s behalf. Id. ¶¶
16-19.
On January 18, 2009, Plaintiff was given a 30-day proposed suspension by Defendant
Quintana. Id. ¶ 19. However, on February 11, 2008, the proposed suspension was found to be
4 The Amended Complaint does not specify the substance of Plaintiff’s testimony before the D.C. Council on January 24, 2008, nor does it indicate whether Plaintiff was testifying as part of her official duties at the OUC. See Am. Compl. ¶ 25. 5 “not sustained and the charges were dismissed without prejudice.” Id. ¶ 28.
Although the proposed suspension was overruled, Plaintiff’s status at the OUC after
January 18, 2008, is nonetheless unclear. In particular, it appears that Plaintiff may have taken
leave from work for some unspecified period of time as a result of her alleged job-related
anxiety. Plaintiff alleges that on February 28, 2008, she requested that she be allowed “to use
her annual leave in lieu of sick leave to cover the time she would be away from work,” thus
suggesting that Plaintiff had taken leave at some point after January 18, 2008. See id. ¶ 36.
According to Plaintiff, although her request to use annual leave was initially approved by her
supervisor on February 29, 2008, Defendant Quintana subsequently denied the request on March
5, 2008, and required Plaintiff “to use her sick time to cover the time she has been away from
work.” Id. ¶¶ 43, 64-65.
D. Plaintiff’s Alleged “Impairment/Disability for Anxiety”and Workers’ Compensation Claim
Beginning January 17, 2008, Plaintiff visited multiple health care providers regarding her
alleged job-related anxiety. Id. ¶¶ 18, 24, 46, 49. Specifically, Plaintiff alleges that she was
“diagnosed with an impairment/disability for anxiety,” id. ¶ 24, and was placed on medication for
“job related anxiety,” id. ¶ 46. See also id. ¶ 49 (alleging that Plaintiff was found to “be suffering
from anxiety depression”). According to Plaintiff, “[t]he suggested reasonable accommodation
was that [Plaintiff] work 8 hour shifts instead of 10 hour shifts.” Id. ¶ 24.
As stated previously, Plaintiff was issued a workers’ compensation claim number on
January 17, 2008. Id. ¶ 19. Upon receipt of the claim number, she spoke with a claim examiner
at the D.C. Office of Risk Management (“ORM”), who advised Plaintiff that ORM would send
her the appropriate forms and have an investigator meet with her to take her statement. Id. ¶ 22.
6 Plaintiff met with the investigator on February 8, 2008. Id. ¶ 28.
On or around February 20, 2008, ORM informed Plaintiff that it had not received her
paperwork and therefore planned to deny her claim for workers’ compensation benefits. Id. ¶ 30.
Upon being so advised, Plaintiff contacted ORM to discuss the missing paperwork. Id. ¶ 31.
According to Plaintiff, she then completed the paperwork as required, submitting the material to
the ORM on February 28, 2008. Id. ¶¶ 32-34, 35. Nonetheless, on March 3, 2008, ORM sent
Plaintiff a letter advising her that her disability claim had been denied due to abandonment. Id. ¶
37.
Plaintiff further asserts that she visited the OUC on March 5, 7 and 12, 2008, in order to
provide work with a leave slip from her doctor and to receive advice on the workers’
compensation claims process. Id. ¶¶ 39, 41. Plaintiff was told during these visits that Defendant
Quintana had ordered that Plaintiff could not go onto the operations floor. Id. ¶¶ 39, 41, 42.
Plaintiff also contends that she requested a “continuation of pay,” but that, as of the date this
lawsuit was filed, she had not yet “received her statutory 21 days of continuing pay.” Id. ¶¶ 42-
43.5
E. Plaintiff Files the Instant Lawsuit
Plaintiff filed this action on April 10, 2008. See Compl., Docket No. [1]. In her original
Complaint, Plaintiff alleged retaliation in violation of the D.C. Whistleblower Protection Act,
D.C. Code § 1-615.51 et seq. (Count I); retaliation in violation of the D.C. Workers’
Compensation statute, D.C. Code § 32-1501 et seq. (Count II); and deprivation of her First
5 Plaintiff has not elaborated further on her allegations that she was denied her “statutory 21 days of continuing pay.” It is therefore unclear from the face of the Amended Complaint what statute Plaintiff is referring to and on what legal basis she claims she was entitled to “21 days of continuing pay.” See Am. Compl. ¶¶ 42-43. 7 Amendment Rights in violation of 42 U.S.C. § 1983 (Count III). Plaintiff’s claims were based
on the events described above occurring from December of 2007 through the filing of the
complaint.
F. Alleged Events Occurring After the Filing of this Lawsuit
Plaintiff alleges that she continued to be subject to illegal conduct by Defendants even
after filing the above-captioned matter. In particular, Plaintiff alleges that on June 6, 2008, she
was denied leave, although such leave had previously been approved. Am. Compl. ¶ 47.
Plaintiff also asserts that on July 22, 2008, she filed a complaint with the D.C. Office of Human
Rights (“OHR”), alleging that OUC’s failure to provide her with reasonable accommodations
(i.e., an 8-hour shift) constituted a violation of the ADA. Id. ¶ 48. According to Plaintiff, after
filing the complaint with the OHR, she received a letter from the OUC’s human resources
department “threatening to fire her.” Id. ¶ 75. Shortly thereafter, at some unspecified time in
August of 2008, Plaintiff was “placed on AWOL.” Id. ¶ 76.
Plaintiff asserts that she was ultimately terminated from her position at the OUC
approximately one month after she filed her complaint with the OHR. Id. ¶¶ 50, 77. According
to Plaintiff, the OUC’s human resource manager advised her that “they could not determine if
[she] was suffering from a disability,” despite the fact that Plaintiff had provided the OUC with a
medical report from a doctor who had diagnosed Plaintiff to be suffering from “anxiety
depression,” and therefore “denied [Plaintiff] reasonable accommodations and ultimately fired
[Plaintiff] from her job.” Id. ¶¶ 49, 50.
G. Plaintiff’s Amended Complaint
Plaintiff amended her original complaint in this action on January 2, 2009, to include
8 additional allegations discussed above and to add two additional claims to her complaint: (1) a
claim that Defendants failed to provide a reasonable accommodation for her mental anxiety in
violation of the ADA (Count IV); and (2) a claim that Defendants terminated her employment in
retaliation for filing an EEO complaint in violation of the ADA (Count V).
Currently pending before the Court is Defendants’ Motion to Dismiss Plaintiff’s
Amended Complaint. See Defs.’ MTD, Docket No. [20]. Plaintiff has since filed her
Opposition, see Pl.’s Opp’n, Docket No. [23], and Defendants their reply, see Defs.’ Reply,
Docket No. [26]. Accordingly, Defendants’ motion is fully briefed and now ripe for the Court’s
resolution.
II. LEGAL STANDARD
The Federal Rules of Civil Procedure require that a complaint contain “‘a 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));
accord Erickson v. Pardus, 551 U.S. 89, 93 (per curiam). Although “detailed factual allegations”
are not necessary to withstand a Rule 12(b)(6) motion to dismiss, to provide the “grounds” of
“entitle[ment] to relief,” a plaintiff must furnish “more than labels and conclusions” or “a
formulaic recitation of the elements of a cause of action.” Id. at 1964-65; see also Papasan v.
Allain, 478 U.S. 265, 286 (1986). Instead, a complaint must contain sufficient factual matter,
accepted as true, to “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.”
9 Ashcroft v. Iqbal, __ U.S. __, 129 S. Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 556).
In evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim, the court must
construe the complaint in a light most favorable to the plaintiff and must accept as true all
reasonable factual inferences drawn from well-pleaded factual allegations. In re United Mine
Workers of Am. Employee Benefit Plans Litig., 854 F. Supp. 914, 915 (D.D.C. 1994); see also
Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979) (“The complaint must be ‘liberally
construed in favor of the plaintiff,’ who must be granted the benefit of all inferences that can be
derived from the facts alleged.”). However, as the Supreme Court recently made clear, a plaintiff
must provide more than just “a sheer possibility that a defendant has acted unlawfully.” Iqbal,
129 S. Ct. at 1950. Where the well-pleaded facts set forth in the complaint do not permit a court,
drawing on its judicial experience and common sense, to infer more than the “mere possibility of
misconduct,” the complaint has not shown that the pleader is entitled to relief. Id. at 1950.
III. DISCUSSION
Defendants have moved to dismiss each of the five counts asserted in Plaintiff’s
Amended Complaint. For reasons that shall become clear below, the Court first considers
Defendants’ arguments with respect to Plaintiff’s Section 1983 Claim (Count III), before then
turning to address Plaintiff’s claims for violation of the D.C. WPA (Count I), retaliation in
violation of the D.C. Workers’ Compensation statute, D.C. Code § 32-1501 et seq. (Count II),
failure to provide a reasonable accommodation in violation of the ADA, (Count IV); and
retaliation in violation of the ADA (Count V).
A. Plaintiff’s Section 1983 Claim
The Court begins its discussion by considering Count III of Plaintiff’s Amended
10 Complaint, in which Plaintiff alleges a violation of her First Amendment rights pursuant to
Section 1983. Am. Compl. ¶¶ 68-71. According to Plaintiff, she was retaliated against for
exercising her “constitutional right under the 1st Amendment of the U.S. Constitution to speak to
the media [and] to voice her concerns about the safety of D.C. residents.” Id. ¶ 68. More
specifically, Plaintiff alleges that Defendant Quintana placed Plaintiff on administrative leave
and denied her pay in an “attempt to stop [Plaintiff] from talking to the media and city council.”
Id. ¶¶ 68-69. She now seeks monetary damages for the alleged violation of her First Amendment
rights pursuant to Section 1983. See id. ¶ 71.
In moving for dismissal of Plaintiff’s Section 1983 claim, Defendants set forth three
principal arguments. First, Defendants contend that Plaintiff has failed to set forth sufficient
facts to establish the predicate First Amendment violation. Defs.’ MTD at 7-11. Second,
Defendants assert that Plaintiff’s Section 1983 claim as alleged against Defendant Quintana
should be dismissed because (a) to the extent the claim is asserted against Defendant Quintana in
her official capacity, the claim is duplicative of Plaintiff’s claim against the District, and (b) to
the extent the claim is asserted against Defendant Quintana in her individual capacity, she is
entitled to qualified immunity. Id. at 12. Third and finally, Defendants assert that Plaintiff has
failed to properly plead municipal liability under Section 1983 as is required to maintain a claim
against the District. Id. at 11. The Court shall address these arguments in turn.
1. Plaintiff has Pled Sufficient Facts to Establish that her Disclosures Enjoy First Amendment Protection
“A public employee like [Plaintiff] ‘does not relinquish First Amendment rights to
comment on matters of public interest by virtue of government employment.’” Winder v. Erste,
566 F.3d 209, 214 (D.C. Cir. 2009) (hereinafter “Winder II”) (quoting Connick v. Myers, 461
11 U.S. 138, 140 (1983)). “At the same time, the government as employer must be able to prevent
employees’ speech from interfering with the ‘efficient provision of public services.’” Id.
(quoting Garcetti v. Ceballos, 547 U.S. 410, 418 (2006)). “The threshold question for a public
employee’s First Amendment claim is ‘whether the employee spoke as a citizen on a matter of
public concern.’” Id. (quoting Garcetti, 547 U.S. at 418). “If so, [her] speech is protected unless
the government can justify treating its employees differently from other citizens. But if the
employee spoke ‘pursuant to’ [her] official duties, [s]he cannot claim constitutional protection.”
Id. (quoting Garcetti, 547 U.S. at 421).
Defendants contend that Plaintiff has failed to meet this threshold requirement, arguing
that Plaintiff, in voicing her opposition to the OUC proposal, “spoke out during the course of her
employment as a government worker” and not as a private citizen. Defs.’ MTD at 8. The Court
disagrees. Although Plaintiff’s allegedly protected statements “concerned the subject matter of
[her] employment . . ., this [] is nondispositive.” Garcetti, 547 U.S. at 420. Similarly, although
it appears that some of these allegedly protected communications may have occurred at
Plaintiff’s place of work, this too does not preclude Plaintiff’s constitutional claim. See id.
(“Employees in some cases may receive First Amendment protection for expressions made at
work.”). Rather, the critical inquiry is whether Plaintiff spoke “pursuant to [her] official duties.”
Id.
For example, in Garcetti, the Supreme Court held that a state deputy district attorney did
not enjoy First Amendment protection for a deposition memorandum he wrote notifying his
supervisors of inaccuracies in an affidavit used to obtain a search warrant. 547 U.S. at 413. The
Supreme Court emphasized that the memorandum had been written pursuant to the plaintiff’s
12 official duties. Id. at 414, 421. Similarly, the D.C. Circuit concluded in Winder II that the
former transportation manager for the D.C. Public Schools did not enjoy First Amendment
protection when he reported the District’s failure to comply with court orders to his supervisors.
566 F.3d at 215. In so holding, the D.C. Circuit emphasized that the plaintiff, “[i]n reporting his
supervisors’ alleged obstruction of the [court] orders . . ., was fulfilling his undisputed duty to see
that those orders were implemented.” Id. The D.C. Circuit therefore concluded that the plaintiff
spoke pursuant to his official duties and was not speaking as a citizen when he alleged
noncompliance. Id.
Applying these principles to the case at hand, the Court finds that Plaintiff has sufficiently
alleged facts from which the reasonable inference can be drawn that she was speaking as a
private citizen and not pursuant to her official duties. According to Plaintiff, she was employed
as a dispatcher in the OUC, and her primary duties included handling emergency 911 calls and
transmitting information to the necessary response teams. Am. Compl. ¶ 3. Plaintiff’s alleged
job responsibilities did not include making managerial decisions regarding the handling of 911
calls nor is there any suggestion that Plaintiff was required, let alone invited, to report her
concerns regarding the handling of emergency and non-emergency calls to her supervisors or to
members of the District government. Cf. Williams v. Johnson, 537 F. Supp. 2d 141, 151-52
(D.D.C. 2008) (concluding that plaintiff’s speech was not afforded First Amendment protection
when she testified to Councilpersons regarding District-held contracts because her job duties
“required her to provide her findings to senior executive personnel in the District government”
but that she sufficiently alleged that she was speaking as a citizen when she subsequently met
with a particular Councilmember and raised similar concerns). Rather, Plaintiff’s position as an
13 OUC dispatcher involved “assist[ing] citizens when they called 911” and “send[ing] the
information to an officer on the street.” Am. Compl. ¶ 3.
Defendants nonetheless assert that Plaintiff’s claim must fail because “it is clear that in
voicing concerns about the proposed 911 system change, Plaintiff was speaking out—not as a
private citizen, but, as an employee who would have had to handle the additional calls.” Defs.’
MTD at 10. This argument is based on a misreading of Plaintiff’s Amended Complaint.
Plaintiff does not allege solely that she spoke out because she was worried that she would be
required to work more or that her job would become more difficult as a result of the OUC
proposed changes. Rather, Plaintiff has also alleged that she spoke out regarding her concerns
that the proposed changes would detrimentally affect the public’s safety. Ultimately, Plaintiff
will be required to demonstrate as much. At this stage, however, the Court finds that Plaintiff
has sufficiently alleged facts from which the reasonable inference may be drawn that her
communications were not made “pursuant to her official duties.”
2. Plaintiff’s Section 1983 Claim Against Defendant Quintana
Defendants next contend that Plaintiff’s Section 1983 claim as alleged against Defendant
Quintana should be dismissed because (a) to the extent the claim is asserted against Defendant
Quintana in her official capacity, the claim is duplicative of Plaintiff’s claim against the District,
and (b) to the extent the claim is asserted against Defendant Quintana in her individual capacity,
she is entitled to qualified immunity.
As an initial matter, it is entirely unclear to the Court whether Plaintiff in fact intended to
bring her Section 1983 claim against Defendant Quintana in her individual capacity, in her
official capacity, or both. Plaintiff’s Complaint, although not filed pro se, is by no means a
14 model of artful drafting. In particular, it does not indicate whether Plaintiff intended to bring suit
against Defendant Quintana in her individual or official capacity. In an abundance of caution,
Defendants, in addressing Plaintiff’s Section 1983 claim, have presumed that Plaintiff asserts the
claim against Defendant Quintana in both her individual and official capacities. Although
Plaintiff herself suggests in her opposition that she intended to assert her Section 1983 claim
against Defendant Quintana only in her individual capacity, see Pl.’s Opp’n at 2-3, it is difficult
to decipher Plaintiff’s exact position on this issue as Plaintiff’s briefing in opposition to
Defendant’s motion includes only a brief, conclusory response that does little to clarify Plaintiff’s
intent in filing her Section 1983 claim. Consequently, the Court cannot conclude on the record
now before it whether Plaintiff means to assert this claim against Defendant Quintana in her
official capacity and/or individual capacity.
Regardless, the Court finds that, as a practical matter, this ambiguity in Plaintiff’s
Amended Complaint impacts only her Section 1983 claim to the extent she intended to assert it
against Defendant Quintana in her individual capacity. For the reasons discussed below, the
Court easily concludes that, assuming Plaintiff’s Section 1983 claim is asserted against
Defendant Quintana in her official capacity, the claim should be dismissed as duplicative. The
question, however, of whether Plaintiff’s Section 1983 claim survives Defendants’ motion to
dismiss—to the extent it is asserted against Defendant Quintana in her individual capacity—is
more complicated, and the Court declines to consider it without further clarification from
Plaintiff as to the exact nature of her allegations against Defendant Quintana with respect to her
Section 1983 claim, as explained below.
15 a. Plaintiff’s Section 1983 claim is redundant to the extent it is asserted against Defendant Quintana in her official capacity.
First, even assuming Plaintiff intended to assert her Section 1983 claim against Defendant
Quintana in her official capacity, the Court finds that the claim should be dismissed as
duplicative of her claim against the District. “An official capacity suit ‘is not a suit against the
official personally, for the real party in interest is the entity.’” Robinson v. D.C., 403 F. Supp. 2d
39, 49 (D.D.C. 2005). “This Circuit has recognized that ‘[a] section 1983 suit for damages
against municipal officials in their official capacities is . . . equivalent to a suit against the
municipality itself.’” Id. (quoting Atchinson v. D.C., 73 F.3d 418, 424 (D.C. Cir.1996)).
“Accordingly, ‘a plaintiff seeking to recover on a damages judgment in an official-capacity suit
must look to the government entity itself.’” Id. (quoting Kentucky v. Graham, 473 U.S. 159, 166
(1985)).
In light of this reality, district courts in this Circuit routinely dismiss claims brought
against District officials in their official capacities where such claims are duplicative of claims
brought against the District itself.
Although neither the Supreme Court nor the District of Columbia Circuit have held that government officials sued in their official capacities in conjunction with suits also filed against the municipality should be summarily dismissed, this is the overwhelming approach that has been taken by members of this Court, as well as the position taken by other courts. This approach is based on the theory that retaining the official as a named defendant is a “redundant and an inefficient use of judicial resources.”
Price v. D.C., 545 F. Supp. 2d 89, 94 (D.D.C. 2008) (quoting Chisholm v. Superior Court of
D.C., No. 06-2174, 2007 WL 1601718, at *2 (D.D.C. June 4, 2007)) (collecting cases); see also
Hardy v. D.C., 601 F. Supp. 2d 182, 186-87 (D.D.C. 2009) (“Because plaintiffs make the same
claims against the District of Columbia, the same claims against [former Director of D.C.
16 Department of Corrections] and [former Jail Warden] in their official capacities are redundant
and will be dismissed.”); Price, 545 F. Supp. 2d at 94-96 (dismissing Section 1983 and
negligence claims against District officials as “not only redundant but also unnecessary when the
municipality is also a named defendant”). Accordingly, as Plaintiff’s official-capacity claim
against Defendant Quintana merges into and is redundant of her claim against the District,
Defendants’ [20] Motion to Dismiss shall be GRANTED to the extent it seeks dismissal of
Plaintiff’s Section 1983 claim against Defendant Quintana in her official capacity.
b. The Court declines to consider the merits of Defendant Quintana’s qualified immunity claim at this time.
In an abundance of caution, Defendants have also argued that Defendant Quintana is
entitled to qualified immunity to the extent Plaintiff’s Section 1983 claim is asserted against her
in her individual capacity. The Court concludes, however, that it is unfair to Defendant Quintana
to require her to advance a claim of qualified immunity without specific notice as to the exact
nature of the factual allegations against her in her personal capacity. Rather, Plaintiff shall be
required to amend her complaint to provide the requisite notice to Defendant Quintana before the
Court shall consider arguments with respect to this claim. The Court therefore declines to
consider the merits of Defendant Quintana’s qualified immunity claim at this time.
Accordingly, Defendants’ [20] Motion to Dismiss is DENIED WITHOUT PREJUDICE
with respect to the issue of qualified immunity. To the extent Plaintiff intends to allege her
Section 1983 claim against Defendant Quintana in her individual capacity, Plaintiff must amend
her complaint, by no later than October 16, 2009, to specify that Defendant Quintana is being
sued in her individual capacity and to allege facts sufficient to support her claim that Defendant
17 Quintana should be held personally liable. If Plaintiff declines to do so, the Court shall treat her
failure to timely amend as a concession that she does not seek to assert her Section 1983 claim
against Defendant Quintana in her individual capacity. Plaintiff is further advised that if she
chooses to amend her complaint, she may amend only to further clarify her Section 1983 claim
with respect to Defendant Quintana in her individual capacity and to remove those claims the
Court has dismissed in this Memorandum Opinion and Order; Plaintiff may not otherwise amend
her complaint absent either Defendants’ or this Court’s consent, pursuant to Federal Rule of Civil
Procedure 15(a).
Finally, in the event Plaintiff does amend her complaint to specify that her Section 1983
claim is asserted against Defendant Quintana in her individual capacity, the Court shall permit
Defendant Quintana an opportunity to file a renewed motion with respect to her claim of
qualified immunity, if she deems it appropriate. Counsel for both parties are hereby placed on
notice that any such briefing must include a detailed and legally-supported analysis of Defendant
Quintana’s qualified immunity claim that specifically examines Plaintiff’s allegations in light of
the relevant qualified immunity case law.8
3. Plaintiff’s have Failed to Plead Municipal Liability
The Court now turns to Defendants’ third and final argument regarding Plaintiff’s Section
1983 claim—that Plaintiff cannot pursue such a claim against the District because she has failed
8 The parties are advised that in the event further briefing is required they should not simply re-file their instant briefing on this issue. Although the Court does not consider the merits of Defendant Quintana’s qualified immunity claim, it is readily apparent nonetheless that the parties’ current briefing on this issue is inadequate, consisting largely of legally-unsupported and conclusory allegations that do little to assist the Court in resolving the complicated issue of qualified immunity. 18 to plead sufficient facts to support municipal liability. In order to hold a municipality liable for
civil rights violations under Section 1983, the municipality 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.” Monell v. Dep’t of Social Servs., 436 U.S. 658,
694, (1978). See also Fierson v. D.C., 506, F.3d 1063, 1066 (D.C. Cir. 2007) (“To impose
liability on the District under 42 U.S.C. § 1983, [plaintiff] must show not only a violation of
rights under the Constitution or federal law, but also that the [District’s] custom or policy caused
the violation”) (internal citation omitted). Proof of a single incident of unconstitutional activity
is, in general, insufficient to impose liability. See Monell, 436 U.S. at 694. However, a Section
1983 claim may withstand a motion to dismiss if the complaint alleges one instance of
constitutional deprivation and identifies “some factual basis for the allegation of a municipal
custom or policy” behind that activity. Atchinson, 73 F.3d at 423.
The Court concludes that Plaintiff has not sufficiently alleged facts to support the claim
that the District had a municipal custom or policy of retaliating against employees for exercising
their First Amendment rights. Plaintiff, in her Amended Complaint, has not pointed to any other
employee who suffered similar retaliation nor demonstrated that the single incident of
disciplinary action at issue—Plaintiff’s being placed on administrative leave with pay—was
made pursuant to an established D.C. policy or practice. See generally Am. Compl. Plaintiff’s
only argument to the contrary is without merit. Specifically, Plaintiff contends that Defendant
Quintana was “clothed with authority to make policy” and that when she placed Plaintiff on
leave, she “made the policy to retaliate against Ms. Jones because of her [F]irst Amendment
activity.” Pl.’s Opp’n at 7. Although it is reasonable to infer from Plaintiff’s Amended
19 Complaint that Defendant Quintana possessed the authority to make employment decisions and
discipline OUC employees and that she exercised this authority against Plaintiff, Plaintiff has not
proffered any facts alleging that Defendant Quintana had “the authority to set employment policy
for the District of Columbia—a distinction that is significant in considering the question of
municipal liability.” Tabb, 605 F. Supp. 2d at 96. See also Fox v. D.C., 990 F. Supp. 13, 20
(D.D.C. 1997) (holding that a municipality “could not be liable under § 1983 when the officials
responsible for the alleged constitutional deprivation…possessed only the authority to make
employment decisions (i.e., transferring or terminating an agency employee), not the authority to
set employment policy for the City.”) (citing City of St. Louis v. Praproptnki, 485 U.S. 112, 128-
30 (1988) (emphasis in original)). Nothing in the evidence proffered by Plaintiff supports a
finding that Defendant Quintana was a final decision-maker with respect to employment policy
or that the municipality sanctioned the disciplinary action taken against Plaintiff. Accordingly,
Plaintiff has failed to sufficiently allege that a municipal custom or policy deprived Plaintiff of
her constitutional rights, and Defendants’ [20] Motion to Dismiss Count III as against Defendant
District of Columbia is GRANTED.
B. Plaintiff’s D.C. Whistleblower Protection Act Claim
The Court turns next to Plaintiff’s claim that Defendants violated the District’s
Whistleblower Protection Act, D.C. Code § 1-615.51 et seq. (“WPA” or the “Act”), as asserted
in Count I of her Amended Complaint. More specifically, Plaintiff alleges that Defendant
Quintana’s decision on January 10, 2008, to place Plaintiff on administrative leave was an act of
retaliation against her for communicating her concerns regarding the OUC proposal to the D.C.
Council and to the Mayor. Am. Compl. ¶¶ 53-57. According to Plaintiff, Defendants’ conduct
20 was in violation of the WPA, which prohibits a supervisor from “threaten[ing] to take or tak[ing]
a prohibited personnel action9 or otherwise retaliat[ing] against an employee because of the
employee’s protected disclosure . . . .” D.C. Code § 1-615.53. Defendants have moved for
dismissal of Plaintiff’s WPA claim for two reasons. First, Defendants contend that Plaintiff
cannot maintain her WPA claim against Defendant Quintana because the WPA does not create a
private cause of action against an employee’s supervisor. Defs.’ MTD at 18. Second,
Defendants assert that Plaintiff fails to state a claim under the WPA because she has not alleged
sufficient facts to demonstrate either (a) that her public disclosures enjoy protection under the
Act or (b) that she was retaliated against because of the public disclosures, as is required. Id. at
18-21.
1. Plaintiff Cannot Pursue a WPA Claim Against Defendant Quintana in Her Individual Capacity
Defendants first contend that Plaintiff’s WPA claim against Defendant Quintana must be
dismissed because an employee may not sue his or her supervisor individually for alleged
violations of the WPA. Plaintiff opposes Defendants’ motion, arguing that—contrary to
Defendants’ contention—the Act should be read to create an implied right of action against
Defendant Quintana because the D.C. Council, in enacting the WPA, declared that its purpose in
doing so was, in part, to “[h]old public employees personally accountable for failure to enforce
the laws and for negligence in the performance of their duties.” Pl.’s Opp’n at 13 (quoting D.C.
Code § 1-615.51(4) (emphasis added by Plaintiff)).
The WPA creates an express right of action for equitable and compensatory damages
9 The WPA defines a “prohibited personnel action” as including, but not limited to, “recommended, threatened, or actual termination, demotion, suspension, or reprimand . . . .” Id. § 1-615.52(a)(5). 21 against the District. D.C. Code § 1-615.54(a); Winder v. Erste, Civ. A. No. 03-2623, 2005 U.S.
Dist. LEXIS 5190, at *20 (D.D.C. March 31, 2005) rev’d in part on other grounds, 566 F.3d 209
(D.C. Cir. 2009) (hereinafter “Winder I”). In addition, the WPA expressly provides for separate
remedies against supervisors in the form of limited disciplinary action. The relevant provision of
the WPA states that, “[u]pon receipt of an adjudicative finding that a protected activity was a
contributing factor in an alleged prohibited personnel action, the appropriate agency head shall
immediately institute disciplinary action against the offending supervisor.” D.C. Code § 1-
615.58(10).
Based upon the above-outlined structure of the WPA, courts in this district have held that
the Act does not create a private right of action against individual defendants. See, e.g., Winder
I, 2005 U.S. Dist. LEXIS 5190, at *27; Tabb v. D.C., 477 F. Supp. 2d 185, 189 (D.D.C. 2007).
As Judge John D. Bates concluded in his well-reasoned decision in Winder I,
[t]he structure of the statute strongly indicates that the right of action set forth in § 1-615.54 was intended to run only against the District . . . . Moreover, the provisions governing disciplinary proceedings against supervisors indicate that the D.C. Council gave consideration to the remedies that should be available against supervisors, and resolved the issue as set forth in D.C. Code § 1-615.58(10) . . . .
2005 U.S. Dist. LEXIS at * 24-25. Upon its own review of the relevant statutory provisions and
case law, the Court agrees with Judge Bates’ persuasive analysis in Winder I and concludes, for
the same reasons, that there is no implied cause of action against individual supervisors under the
WPA. Accordingly, the Defendant’s Motion to Dismiss is GRANTED insofar as it seeks
dismissal of Plaintiff’s WPA claim against Defendant Quintana.10
10 As explained above in discussion Plaintiff’s Section 1983 claim, it is unclear from Plaintiff’s Amended Complaint whether she intended to assert her claims—including Count I—against Defendant Quintana in her individual or official capacity. The Court, however, concludes that Count I must be dismissed as against Defendant Quintana regardless of whether it 22 2. Plaintiff Sufficiently Alleges a Claim Against the District Pursuant to the WPA
Defendants next move to dismiss Plaintiff’s WPA claim as asserted against the Defendant
District on the grounds that she has not alleged sufficient facts to demonstrate either (a) that she
engaged in “protected disclosures,” as that term is defined in D.C. Code § 1-615.52, or (b) that
she was retaliated against because of the public disclosures. The Court shall address each
assertion in turn.
First, construing the Amended Complaint in a light most favorable to the Plaintiff and
accepting as true all reasonable factual inferences therein, the Court finds that—contrary to
Defendants’ assertion—Plaintiff has sufficiently alleged that she engaged in protected disclosures
as defined under the Act. The WPA defines “protected disclosures” as:
any disclosure of information, not specifically prohibited by statute, by an employee to a supervisor or a public body that the employee reasonably believes evidences:
(A) Gross mismanagement;
(B) Gross misuse or waste of public resources or funds;
(C) Abuse of authority in connection with the administration of a public program or the execution of a public contract;
(D) A violation of a federal, state, or local law, rule, or regulation, or of a term of a contract between the District government and a District government contractor which is not of a merely technical or minimal nature; or
(E) A substantial and specific danger to the public health and safety.
Id. § 1-615.52(a)(6). For purposes of the WPA, a “public body” includes a member of the D.C.
Council. Id. § 1-615.52(a)(7).
is asserted against her in her individual capacity, official capacity, or both, for the reasons set forth above. 23 As set forth in her Amended Complaint, Plaintiff specifically alleges that she spoke out
against the OUC proposal because she was concerned that the proposed changes “would
jeopardize the safety of residents of the District of Columbia” and would “cause emergency calls
[to experience] a delay in service.” Am. Compl. ¶¶ 6, 7; see also id. ¶ 40 (Plaintiff “sen[t] letters
to the city council regarding her concerns for the safety of the residents of the city”); id. ¶ 54
(Plaintiff sent emails to various Councilpersons and Mayor Fenty “stating her fear for the safety
of the District of Columbia residents if the proposed change occurred”). Plaintiff’s allegations
are sufficient to suggest that she “reasonably believe[d]” her emails evidenced “[a] substantial
and specific danger to the public health and safety.” See D.C. Code § 1-615.52(6). Defendant’s
arguments to the contrary are without merit. Accordingly, the Court finds that Plaintiff has
alleged facts sufficient to permit the Court to infer, for purposes of Defendants’ motion to
dismiss, that Plaintiff’s disclosures were “protected disclosures” within the meaning of the WPA.
Second, the Court concludes that Plaintiff has also sufficiently alleged that Defendants
took an allegedly prohibited personnel action against her because of her public disclosures. To
successfully allege a prima facie case under the WPA, an employee must demonstrate, inter alia,
that a protected disclosure was a “contributing factor” in the employer’s decision to take an
adverse action. D.C. Code § 1-615.54(b). See also Crawford v. D.C., 891 A.2d 216, 218-19
(D.C. 2006) (outlining the burden shifting framework of the causation analysis under the WPA).
The WPA defines a “contributing factor” as “any factor which, alone or in connection with other
factors, tends to affect in any way the outcome of the decision.” D.C. Code § 1-615.52(a)(2). In
this case, Plaintiff has alleged that, beginning on or around December 14, 2007, she engaged in
various protected disclosures expressing her concerns with the OUC proposal to members of the
24 D.C. Council and Mayor Fenty. See Am. Compl. ¶¶ 7-10, 15, 23. Plaintiff also alleges that, on
January 10, 2008—only three days after Plaintiff’s attempt to speak with the Mayor in person
about the proposed changes—she was placed on administrative leave by Defendant Quintana
because “‘the Mayor was not pleased with Ms. Jones’ and indicated she was a disgruntle [sic]
and disrespectful employee.” Id. ¶ 12. Based on these allegations, the Court finds that Plaintiff
has sufficiently alleged facts from which it can be reasonably inferred that her attempts to voice
her concerns regarding the OUC proposal contributed, at least in part, to the decision to place her
on administrative leave. Accordingly, Defendants’ [20] Motion to Dismiss is DENIED insofar as
Defendants assert that Count I must be dismissed against the District.
C. Plaintiff’s Workers’ Compensation Act Retaliation Claim
Plaintiff next alleges that Defendants retaliated against Plaintiff for attempting to file a
workers’ compensation claim in violation of D.C.’s Workers’ Compensation Act, D.C. Code §§
32-1501 et seq., as set forth in Count II of Plaintiff’s Amended Complaint. Am. Compl. ¶¶ 58-
66. According to Plaintiff, Defendant Quintana engaged in various “discriminating actions
against Ms. Jones after she attempted to file a workers’ compensation claim,” and that such
conduct “was motivated by animus against Ms. Jones in violation of . . . D.C. Code § 32-1542.”
Id. ¶ 66. Defendants have moved to dismiss Count II, noting that the anti-retaliatory provisions
of the D.C. Workers’ Compensation Act do not apply to Plaintiff, an employee of the District.
Defs.’ MTD at 21. Because Defendants are correct, Plaintiff’s claim under the Workers’
Compensation Act must be dismissed.
It is well-settled law that D.C. Code § 32-1542 “does not apply to employees of the
District of Columbia.” Heasley v. D.C. Gen. Hosp., 180 F. Supp. 2d 158, 172-73 (D.D.C. 2002).
25 Although section 32-1542 prohibits employers and their agents from discharging employees for
pursuing workers’ compensation claims, the statute excludes from coverage employees of the
District government. Specifically, for purposes of Section 32-1542, “employee” is defined to
exclude “employee[s] subject to the provisions of subchapter XXIII of Chapter 6 of Title I.”
D.C. Code § 32-1501(9)(B), which in turn establishes a workers’ compensation scheme for
employees of the District of Columbia. See generally D.C. Code § 1-623.01 et seq. (covering
every “employee in any branch of the District of Columbia government, including . . .
employee[s] of an instrumentality wholly owned by the District of Columbia government”).
Plaintiff does not dispute that she was an employee of the District and that this provision
applies. Rather, notwithstanding the clear language of the statute, Plaintiff merely asserts
without legal support that the anti-retaliatory provision at section 32-1542 applies. Pl.’s Opp’n at
15. As discussed above, this is plainly mistaken.11 Section 32-1542 does not apply, and
Defendants’ [20] Motion to Dismiss shall therefore be GRANTED with respect to Count II of
Plaintiff’s Amended Complaint. Count II is therefore dismissed in its entirety.
D. Plaintiff’s Americans with Disabilities Act Failure to Accommodate Claim
Plaintiff also alleges that Defendants failed to provide Plaintiff with a reasonable
accommodation and terminated her from her position with the OUC in violation of the ADA, as
set forth in Count IV of Plaintiff’s Amended Complaint. Am. Compl. ¶ 73. According to
Plaintiff, she was “diagnosed with an impairment/disability for anxiety,” id. ¶ 24, and was placed
on medication for “job related anxiety,” id. ¶ 46. See also id. ¶ 49 (alleging that Plaintiff was
11 Plaintiff also asserts that Defendants are somehow barred by res judicata from arguing that D.C. Code § 32-1542 does not apply to D.C. employees because Defendants did not raise the issue at Plaintiff’s administrative workers’ compensation hearing. See Pl.’s Opp’n at 14-15. This argument is illogical and without merit. 26 found to “be suffering from anxiety depression”). Plaintiff apparently requested that she be
permitted to “work 8 hour shifts instead of 10 hour shifts” as a reasonable accommodation for
her alleged disability. Id. ¶ 24. Defendants, however, denied Plaintiff’s request and terminated
her from her position at the OUC on July 22, 2008, advising Plaintiff “they could not determine
if [she] was suffering from a disability.” Id. ¶¶ 49, 50.
Defendants have moved to dismiss Plaintiff’s failure to accommodate claim, arguing that
Plaintiff has failed to sufficiently allege a violation of the ADA. In particular, Defendants
contend that Plaintiff has failed to allege sufficient facts to demonstrate that she is disabled
within the meaning of the ADA because she has not alleged that her disability substantially limits
a major life activity. Defs.’ MTD at 15-17. The Court agrees.
The ADA prohibits discrimination on the basis of disability, and defines such discrimination to
include, with certain exceptions, “not making reasonable accommodations to the known physical
or mental limitations of an otherwise qualified individual with a disability who is an applicant or
employee . . . .” 42 U.S.C. § 12112(b)(5)(A). The ADA further defines “disability” as
(A) a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.
42 U.S.C. § 12102(1).12 12 As the D.C. Circuit’s recently explained, “[o]n September 25, 2008 the Congress enacted the ADA Amendments Act of 2008 (ADAA) in order to ‘reinstat[e] a broad scope of protection’ under the ADA and to ‘reject’ the holdings in Toyota Motor Mfg., Ky. v. Williams, 534 U.S. 184, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002), and Sutton v. United Air Lines, 527 U.S. 471, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999).” Lytes v. D.C. Water and Sewer Auth., 572 F.3d 936, 939 (D.C. Cir. 2009) (quoting ADAA § 2(b), Pub.L. No. 110-325, 122 Stat. 3553, 3554). The effective date of the ADAA was delayed until January 1, 2009. Id. The D.C. Circuit therefore concluded in Lytes that,“[b]y delaying the effective date of the ADAA, the Congress 27 Plaintiff has not specified, in either her Amended Complaint or her opposition to
Defendants’ Motion to Dismiss, which of these three disability definitions she alleges applies in
this case. Regardless, all three disability definitions require a showing that the impairment
substantially limits a major life activity. Adams v. Rice, 531 F.3d 936, 943 (D.C. Cir. 2008). In
other words, the plaintiff “must show that her alleged impairment is, was, or was believed to be
one that ‘substantially limits one or more . . . major life activities.’” Id. Plaintiff’s Amended
Complaint, however, is entirely devoid of any allegation that her alleged “impairment/disability
for anxiety” substantially limits any major life activity. Accordingly, even accepting Plaintiff’s
allegation as true, she has clearly failed as a matter of law to show that her anxiety “substantially
limit[ed]” a major life activity—here, her ability to work.13 Although the term “substantially
limits” is not defined in the ADA, the Supreme Court has held that
[w]hen the major life activity under consideration is that of working, the statutory phrase “substantially limits” requires, at a minimum, that plaintiffs allege they are unable to work in a broad class of jobs . . . . To be substantially limited in the major life activity of working, then, one must be precluded from more than one type of job, a specialized job, or a particular job of choice. If jobs utilizing an individual’s skills (but perhaps not his or her unique talents) are available, one is not precluded from a substantial class of jobs. Similarly, if a host of different types of jobs are available, one is not precluded from a broad range of jobs.
Sutton v. United Air Lines, Inc., 527 U.S. 471, 491-92 (1999). Plaintiff has alleged, at most, only
that she was unable to work a 10-hour shift as a dispatcher at the OUC (although she admits she
could have worked an 8-hour shift). See Am. Compl. ¶ 24. As Sutton makes clear, in order to
clearly indicated the statute would apply only from January 1, 2009 forward.” Id. at 940. Accordingly, the Court applies the pre-Amendment ADA to Plaintiff’s claims in this case. 13 Because Defendants have not challenged Plaintiff’s apparent contention that work constitutes a major life activity, the Court shall assume, without deciding, that work qualifies as a major life activity under the pre-Amendment ADA. See Duncan v. Washington Metro. Area Transit Auth., 240 F.3d 1110, 1114 n. 1 (D.C. Cir. 2001) (assuming without deciding that work is a major life activity under the ADA). 28 demonstrate that an alleged impairment substantially limits an individual’s ability to work, the
individual must prove that he or she is “precluded from more than one type of job.” Id.
(emphasis added). Because Plaintiff has not sufficiently alleged facts supporting a reasonable
inference that her alleged impairment (i.e, anxiety) precluded her from working any other job
beside the particular one from which she was terminated, Plaintiff has failed to state a claim
under the ADA. Defendants’ [20] Motion to Dismiss is therefore GRANTED with respect to
Count IV of Plaintiff’s Amended Complaint.14
E. Plaintiff’s Claim for Retaliation for Filing an EEO Complaint Claim
Finally, in Count V of Plaintiff’s Amended Complaint, Plaintiff asserts that she was fired
from the OUC in retaliation for filing a complaint with the OHR in July of 2008, in which she
alleged that the OUC discriminated against her in violation of the ADA. Am. Compl. ¶¶ 48, 74-
77.15 Defendants have moved to dismiss Count V, arguing that the claim cannot survive a
motion to dismiss because Plaintiff has not identified “under which statutory scheme she seeks to
proceed against Defendants” nor has she set forth sufficient “detailed factual support” for this
claim. Defs.’ MTD at 17-18. Admittedly, Plaintiff’s Amended Complaint is not as clear as it
could be. However, construing the Amended Complaint in the light most favorable to Plaintiff, 14 Defendants have also argued that Plaintiff’s ADA claim is premature as she has failed to exhaust her administrative remedies. See Defs.’ Reply at 2. Because the Court finds that Plaintiff’s ADA claim must be dismissed based upon her failure to sufficiently allege that she has or had a “disability,” as that term is statutorily defined, the Court need not reach this argument in the alternative, which the Court notes was raised for the first time in Defendants’ Reply. 15 Although, as previously discussed, Plaintiff has not specified whether she named Defendant Quintana as defendant in her official or individual capacity or both, the Court presumes that Count V is asserted only against the District and not against Defendant Quintana as the law is well settled that “there is no individual liability under . . . the ADA.” See Smith v. Janey, __ F. Supp. 2d __, 2009 WL 2584821, * (D.D.C. Aug. 24, 2009) (citing Howard v. Fenty, 580 Fu. Supp. 2d 86, 92 (D.D.C. 2008); see also Di Lella v. Univ. of D.C., 570 F. Supp. 2d 1, 8 n. 8 (same). 29 it is reasonable to infer that Plaintiff intended to assert a claim for retaliation in violation of the
ADA, 42 U.S.C. § 12203(a), based upon allegations that she was terminated approximately one
month after she filed a complaint with the OHR on July 22, 2008, in which she alleged that the
OUC had violated the ADA. Am. Compl. ¶¶ 48, 50, 75-77. Based on this understanding,16 the
Court DENIES Defendants’ [20] Motion to Dismiss with respect to Count V of the Amended
Complaint to the extent Defendants argue that Plaintiff has failed to sufficiently identify the legal
or factual basis for this claim.17
IV. CONCLUSION
For the foregoing reasons, the Court shall Court shall GRANT IN-PART and DENY IN-
PART Defendants’ [20] Motion to Dismiss as follows: 16 Plaintiff, in her opposition to Defendants’ Motion to Dismiss, appears to contend that her claim for retaliation in violation of the ADA, as asserted in Count V of her Amended Complaint, is based on Defendants’ refusal to give her a workers’ compensation claim number or to permit her to use annual leave instead of sick leave as well as the decision to serve her with a 30-day suspension (which was later dismissed). See Pl.’s Opp’n at 12. The Court is baffled by these assertions, given that these alleged events occurred prior to July 2008—i.e., before Plaintiff filed a complaint with the OHR on July 22, 2008. Am. Compl. ¶ 48. As such, these allegations clearly do not support a claim of retaliation for filing the complaint with the OHR. Moreover, the Court notes that these particular factual allegations are not included as a basis for Count V, as set forth in Plaintiff’s Amended Complaint. 17 Defendants have argued for the first time in their Reply that Count V of Plaintiff’s Amended Complaint must also be dismissed because Plaintiff has failed to exhaust her administrative remedies. See Defs.’ Reply at 7. Defendants contend that, although Plaintiff alleges she filed a EEO charge on July 22, 2008, she has not indicated whether she received a right to sue letter or that the OHR has otherwise disposed of her claim. Id. The Court notes that the exhaustion requirements under the ADA are not jurisdictional. See Johnson v. D.C., 572 F. Supp. 2d 94, 102 (D.D.C. 2009). Accordingly, as Defendants did not raise this argument in their opening motion, the Court declines to consider it at this time. See McBride v. Merrell Dow & Pharm., 800 F.2d 1208, 1211 (D.C. Cir.1986) (“[c]onsidering an argument advanced for the first time in a reply brief . . . is not only unfair to an appellee, but also entails the risk of an improvident or ill-advised opinion on the legal issues tendered”) (internal citations omitted). See also Am. Wildlands v. Kempthorne, No. 07-5179, 2008 WL 2651091, at *8 (D.C. Cir. July 8, 2008) (“We need not consider this argument because plaintiffs . . . raised it for the first time in their reply brief.”). 30 (1) With respect to Count I, Defendants’ motion is GRANTED insofar as Defendants contend that Count I must be dismissed as against Defendant Quintana, but is DENIED insofar as Defendants contend that Count I must be dismissed as against the District;
(2) With respect to Count II, Defendants’ motion is GRANTED, and Count II is dismissed in its entirety;
(a) DENIED insofar as Defendants assert that Plaintiff has failed to sufficiently allege that she spoke out as a private citizen;
(b) GRANTED insofar as Defendants contend that Plaintiff’s Section 1983 claim against Defendant Quintana in her official capacity should be dismissed as redundant;
(c) DENIED WITHOUT PREJUDICE insofar as Defendants aasert that Defendant Quintana is entitled to qualified immunity; and
(D) GRANTED insofar as Defendants seek to dismiss Plaintiff’s Section 1983 claim against the District;
(4) With respect to Count IV, Defendants’ motion is GRANTED, and Count IV is dismissed in its entirety; and
In addition, to the extent Plaintiff intends to allege her Section 1983 claim against
Defendant Quintana in her individual capacity, Plaintiff must amend her complaint, by no later
than October 16, 2009, to specify that Defendant Quintana is being sued in her individual
capacity and to allege facts sufficient to support her claim that Defendant Quintana should be
held personally liable. If Plaintiff declines to do so, the Court shall treat her failure to timely
amend as a concession that she does not seek to assert her Section 1983 claim against Defendant
Quintana in her individual capacity. Plaintiff is further advised that if she chooses to amend her
complaint, she may amend only to further clarify her Section 1983 claim with respect to
31 Defendant Quintana in her individual capacity and to remove those claims the Court has
dismissed in this Memorandum Opinion and Order; Plaintiff may not otherwise amend her
complaint absent either Defendants’ or this Court’s consent, pursuant to Federal Rule of Civil
Procedure 15(a). In the event Plaintiff does amend her complaint to specify that her Section
1983 claim is asserted against Defendant Quintana in her individual capacity, the Court shall
permit Defendant Quintana an opportunity to file a renewed motion with respect to her claim of
qualified immunity, if she deems it appropriate. An appropriate Order accompanies this
Memorandum Opinion.
Date: September 30, 2009
/s/ COLLEEN KOLLAR-KOTELLY United States District Judge
Related
Cite This Page — Counsel Stack
Jones v. Quintana, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-quintana-dcd-2009.