Woytowicz v. George Washington University
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Opinion
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
CATHERINE WOYTOWICZ, : : Plaintiff, : Civil Action No.: 17-2703 (RC) : v. : Re Document No.: 10 : THE GEORGE WASHINGTON : UNIVERSITY, et al., : : Defendants. :
MEMORANDUM OPINION
GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS; REMANDING REMAINING STATE LAW CLAIMS TO D.C. SUPERIOR COURT
I. INTRODUCTION
Plaintiff Catherine Woytowicz filed this suit to challenge both the process and outcome
of an investigation into her alleged violation of Title IX while she was employed as a part-time
professor at The George Washington University (“University”). She has brought constitutional
claims against the University and several of its employees for violations of her rights under the
First and Fifth Amendments to the United States Constitution, a federal claim under the Ku Klux
Klan Act, as well as common law and District of Columbia statutory claims for breach of
contract, intentional infliction of emotional distress, discrimination, retaliation, and harassment.
Defendants have moved to dismiss her complaint for failure to state a claim, arguing that the
University and its employees cannot be liable to Professor Woytowicz for constitutional
violations because the University and its employees are not government actors, that her contract
claim is preempted by the Labor Management Relations Act (“LMRA”) and has not been
properly exhausted, and that her remaining state law claims are insufficiently pleaded to survive Defendants’ motion to dismiss for failure to state a claim. For the reasons given below, the Court
dismisses Professor Woytowicz’s constitutional claims because she has not sufficiently alleged
that the University and its employees were government actors or performing a governmental
function when they investigated and disciplined her. The Court also dismisses one of her breach
of contract claims as preempted by the LMRA and insufficiently exhausted. Finally, finding that
the circumstances of this case do not warrant the exercise of supplemental jurisdiction, the Court
remands Professor Woytowicz’s remaining state law claims to D.C. Superior Court.
II. FACTUAL BACKGROUND 1
Professor Catherine Woytowicz served as a part-time faculty member at The George
Washington University from 2000 to 2017, teaching both in the Department of Chemistry and at
the Elliott School of International Affairs. Am. Compl. ¶¶ 9–13. Professor Woytowicz was
recognized both by the University and her students for her excellence in teaching. See id. ¶¶ 44–
55. In 2013, she received an award for her teaching in a “Writing in the Discipline” course and
was also nominated by students for several other teaching awards. Id. In addition to teaching
numerous courses at the University, see id. ¶¶ 10–13, Professor Woytowicz actively mentored
students on a personal and professional basis, and as a result, often received thank you emails
and notes. See id. ¶¶ 56–57; see also Am. Compl. Ex. 2, ECF No. 9-2 (fifty-nine thank you
emails from students expressing their appreciation toward Professor Woytowicz for her teaching,
guidance, and assistance with various applications).
As a part-time faculty member at the University, Professor Woytowicz was a member of
the Service Employees International Union, Local 500, CTW (“Union”), which had a Collective
1 At the motion to dismiss stage, the Court accepts the plaintiff’s factual allegations as true. See, e.g., United States v. Philip Morris, Inc., 116 F. Supp. 2d 131, 135 (D.D.C. 2000).
2 Bargaining Agreement (“CBA”) with the University at all times relevant to this case. Id. ¶¶ 34–
35. Because Professor Woytowicz had held each of her teaching assignments for more than five
academic years, she was entitled to receive “good faith consideration for appointment to teach
the same course[s]” under Article V, Part C of the CBA. Id. ¶¶ 35–37.
On March 17, 2016, Rory Muhammad, the University’s Director for Diversity and
Inclusion and Title IX Coordinator, notified Professor Woytowicz via email that a male student
had filed a complaint against her under the University’s Title IX Policy, and that the University
intended to investigate the complaint. Am. Compl. ¶¶ 61, 78. Title IX of the Education
Amendments of 1972 is a federal civil rights statute enforced by the U.S. Department of
Education’s Office for Civil Rights (“OCR”). See generally 20 U.S.C. §§ 1681–88. Title IX
provides that “[n]o person in the United States shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, or be subjected to discrimination under any education
program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). OCR enforces
Title IX by evaluating, investigating, and resolving complaints alleging sex discrimination, and
also “conducts proactive investigations, called compliance reviews, to examine potential
systemic violations based on sources of information other than complaints.” U.S. Dep’t of Educ.,
Title IX and Sex Discrimination, https://www2.ed.gov/about/offices/list/ocr/
docs/tix_dis.html (last visited August 20, 2018). OCR also publishes informational and guidance
documents to assist schools, universities, and other agencies in complying with Title IX
requirements. Id.
OCR regulations govern the enforcement of Title IX. See generally 34 C.F.R. § 106.
Among other requirements, the regulations mandate that (1) “[e]ach recipient . . . designate at
least one employee to coordinate its efforts to comply with and carry out its responsibilities
3 under this part, including any investigation of any complaint communicated to such recipient
alleging its noncompliance with this part,” and (2) “adopt and publish grievance procedures
providing for prompt and equitable resolution of student and employee complaints alleging any
action which would be prohibited by this part.” 34 C.F.R. § 106.8. As a recipient of federal
funds, Am. Compl. ¶¶ 302–04, the University was subject to the requirements of Title IX at all
times relevant to this case. Id. ¶ 306. To comply with OCR regulations, the University assigned
Rory Muhammad as its Title IX coordinator; his responsibilities included investigating
complaints and carrying out grievance procedures adopted by the University. Id. ¶¶ 309–12; see
34 C.F.R. § 106.8(a).
In 2011, the University entered into a Voluntary Resolution Agreement with OCR in
order to resolve an OCR investigation into the University’s compliance with Title IX. See U.S.
Dep’t of Educ., Resolution Agreement, OCR Complaint No. 11-11-2079,
https://www2.ed.gov/about/offices/list/ocr/docs/investigations/11112079-b.html (last visited
August 20, 2018). As part of the Agreement, the University agreed that by a certain date it would
“submit to OCR for its review and approval draft revised procedures that provide for prompt and
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
CATHERINE WOYTOWICZ, : : Plaintiff, : Civil Action No.: 17-2703 (RC) : v. : Re Document No.: 10 : THE GEORGE WASHINGTON : UNIVERSITY, et al., : : Defendants. :
MEMORANDUM OPINION
GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS; REMANDING REMAINING STATE LAW CLAIMS TO D.C. SUPERIOR COURT
I. INTRODUCTION
Plaintiff Catherine Woytowicz filed this suit to challenge both the process and outcome
of an investigation into her alleged violation of Title IX while she was employed as a part-time
professor at The George Washington University (“University”). She has brought constitutional
claims against the University and several of its employees for violations of her rights under the
First and Fifth Amendments to the United States Constitution, a federal claim under the Ku Klux
Klan Act, as well as common law and District of Columbia statutory claims for breach of
contract, intentional infliction of emotional distress, discrimination, retaliation, and harassment.
Defendants have moved to dismiss her complaint for failure to state a claim, arguing that the
University and its employees cannot be liable to Professor Woytowicz for constitutional
violations because the University and its employees are not government actors, that her contract
claim is preempted by the Labor Management Relations Act (“LMRA”) and has not been
properly exhausted, and that her remaining state law claims are insufficiently pleaded to survive Defendants’ motion to dismiss for failure to state a claim. For the reasons given below, the Court
dismisses Professor Woytowicz’s constitutional claims because she has not sufficiently alleged
that the University and its employees were government actors or performing a governmental
function when they investigated and disciplined her. The Court also dismisses one of her breach
of contract claims as preempted by the LMRA and insufficiently exhausted. Finally, finding that
the circumstances of this case do not warrant the exercise of supplemental jurisdiction, the Court
remands Professor Woytowicz’s remaining state law claims to D.C. Superior Court.
II. FACTUAL BACKGROUND 1
Professor Catherine Woytowicz served as a part-time faculty member at The George
Washington University from 2000 to 2017, teaching both in the Department of Chemistry and at
the Elliott School of International Affairs. Am. Compl. ¶¶ 9–13. Professor Woytowicz was
recognized both by the University and her students for her excellence in teaching. See id. ¶¶ 44–
55. In 2013, she received an award for her teaching in a “Writing in the Discipline” course and
was also nominated by students for several other teaching awards. Id. In addition to teaching
numerous courses at the University, see id. ¶¶ 10–13, Professor Woytowicz actively mentored
students on a personal and professional basis, and as a result, often received thank you emails
and notes. See id. ¶¶ 56–57; see also Am. Compl. Ex. 2, ECF No. 9-2 (fifty-nine thank you
emails from students expressing their appreciation toward Professor Woytowicz for her teaching,
guidance, and assistance with various applications).
As a part-time faculty member at the University, Professor Woytowicz was a member of
the Service Employees International Union, Local 500, CTW (“Union”), which had a Collective
1 At the motion to dismiss stage, the Court accepts the plaintiff’s factual allegations as true. See, e.g., United States v. Philip Morris, Inc., 116 F. Supp. 2d 131, 135 (D.D.C. 2000).
2 Bargaining Agreement (“CBA”) with the University at all times relevant to this case. Id. ¶¶ 34–
35. Because Professor Woytowicz had held each of her teaching assignments for more than five
academic years, she was entitled to receive “good faith consideration for appointment to teach
the same course[s]” under Article V, Part C of the CBA. Id. ¶¶ 35–37.
On March 17, 2016, Rory Muhammad, the University’s Director for Diversity and
Inclusion and Title IX Coordinator, notified Professor Woytowicz via email that a male student
had filed a complaint against her under the University’s Title IX Policy, and that the University
intended to investigate the complaint. Am. Compl. ¶¶ 61, 78. Title IX of the Education
Amendments of 1972 is a federal civil rights statute enforced by the U.S. Department of
Education’s Office for Civil Rights (“OCR”). See generally 20 U.S.C. §§ 1681–88. Title IX
provides that “[n]o person in the United States shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, or be subjected to discrimination under any education
program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). OCR enforces
Title IX by evaluating, investigating, and resolving complaints alleging sex discrimination, and
also “conducts proactive investigations, called compliance reviews, to examine potential
systemic violations based on sources of information other than complaints.” U.S. Dep’t of Educ.,
Title IX and Sex Discrimination, https://www2.ed.gov/about/offices/list/ocr/
docs/tix_dis.html (last visited August 20, 2018). OCR also publishes informational and guidance
documents to assist schools, universities, and other agencies in complying with Title IX
requirements. Id.
OCR regulations govern the enforcement of Title IX. See generally 34 C.F.R. § 106.
Among other requirements, the regulations mandate that (1) “[e]ach recipient . . . designate at
least one employee to coordinate its efforts to comply with and carry out its responsibilities
3 under this part, including any investigation of any complaint communicated to such recipient
alleging its noncompliance with this part,” and (2) “adopt and publish grievance procedures
providing for prompt and equitable resolution of student and employee complaints alleging any
action which would be prohibited by this part.” 34 C.F.R. § 106.8. As a recipient of federal
funds, Am. Compl. ¶¶ 302–04, the University was subject to the requirements of Title IX at all
times relevant to this case. Id. ¶ 306. To comply with OCR regulations, the University assigned
Rory Muhammad as its Title IX coordinator; his responsibilities included investigating
complaints and carrying out grievance procedures adopted by the University. Id. ¶¶ 309–12; see
34 C.F.R. § 106.8(a).
In 2011, the University entered into a Voluntary Resolution Agreement with OCR in
order to resolve an OCR investigation into the University’s compliance with Title IX. See U.S.
Dep’t of Educ., Resolution Agreement, OCR Complaint No. 11-11-2079,
https://www2.ed.gov/about/offices/list/ocr/docs/investigations/11112079-b.html (last visited
August 20, 2018). As part of the Agreement, the University agreed that by a certain date it would
“submit to OCR for its review and approval draft revised procedures that provide for prompt and
equitable resolution of complaints of sexual violence consistent with Title IX.” See Resolution
Agreement ¶ 1. The Agreement also included instructions for providing notice of approved
procedures and developing training programs to help employees “recogniz[e] and appropriately
address[] complaints of sex harassment.” See Resolution Agreement ¶¶ 6–9.
On March 23, 2016, Professor Woytowicz met with Mr. Muhammad in person. Am.
Compl. ¶¶ 79–81. At this meeting, Mr. Muhammad told Professor Woytowicz that there had
been “an allegation of sexual harassment based on unequal power.” Id. ¶ 84. Because she found
the allegations to be vague, Professor Woytowicz requested that Mr. Muhammad provide further
4 details of the accusations against her and the documents on which he was relying, but he did not
comply with her requests. Id. ¶¶ 85, 94. Mr. Muhammad expressed his desire to resolve the
complaint through an informal resolution, which he suggested would only result in a written
reprimand, but Professor Woytowicz did not acquiesce. Id. ¶ 94. Professor Woytowicz alleges
that Mr. Muhammad also asked her inappropriate questions during the meeting. Id. ¶ 101.
On March 24, 2016, Mr. Muhammad sent Professor Woytowicz a list of eighteen
quotations from text messages she had purportedly exchanged with the complaining student and
asked her to respond. Id. ¶¶ 111–18. Mr. Muhammad stated that these texts “could be interpreted
as sexual innuendo.” Id. ¶ 118. Professor Woytowicz believed that Mr. Muhammad quoted these
messages out of context. Id. ¶¶ 115–18. On May 20, 2016, Professor Woytowicz sent to Mr.
Muhammad, through her counsel, a 74-page response to the complaint against her, in which she
sought to give context to the aforementioned text messages. Id. ¶ 133. Mr. Muhammad did not
respond to this document. Id. ¶ 140.
In June 2016, Mr. Muhammad emailed Professor Woytowicz and her counsel a nine-line
written outline of the accusations against her, which she again found to be conclusory and vague.
Id. ¶¶ 141–48. In July, Professor Woytowicz sent an 81-page response, arguing that the
accusations in the June email were “materially different from the allegations Mr. Muhammad
told Dr. Woytowicz about [orally],” and also that without seeing the “actual allegations,” she
would not be able to properly respond. Id. ¶¶ 149, 153. Mr. Muhammad did not respond to this
document either. Id. ¶ 153.
In September 2016, Mr. Muhammad sent two emails indicating that after discussions
between him, Dr. Michael King, Chair of the Chemistry Department, and Eric Arnesen, Vice
Dean for Faculty and Administration in the University’s College of Arts and Sciences, the
5 Chemistry Department had decided to seek an informal resolution to the complaint. Id. ¶¶ 154–
55. In a November 2016 meeting, Mr. Muhammad stated that “he did not find evidence sufficient
to support the complaint of sexual harassment,” but that he had evidence of inappropriate
behavior under the “Consensual Relationships” section of the University’s Title IX Policy. Id. ¶¶
159, 162. Mr. Muhammad told Professor Woytowicz that he believed there was evidence of a
“verbal or physical” sexual relationship between Professor Woytowicz and the complainant,
which violated the Policy’s prohibition against “faculty member[s] . . . hav[ing] a sexual
relationship with a student who is currently in his/her course or is subject to his/her supervision
or evaluation.” Id. ¶¶ 63, 163. Mr. Muhammad again proposed an informal resolution where
Professor Woytowicz would not have to admit to violating the Title IX Policy, but would still
likely receive a written reprimand and have to participate in training. Id. ¶ 170. Professor
Woytowicz did not agree to an informal resolution because she was afraid of losing her
contractual right of first refusal to teach her various courses. Id. ¶¶ 174–75.
In a January 2017 meeting, Mr. Muhammad reiterated his belief that the phrase “sexual
relationship” in the Policy’s Consensual Relationships provision included “verbal or physical
conduct of a sexual nature,” and that Professor Woytowicz had engaged in an improper sexual
relationship with the complainant based on texts and emails mentioned in previous exchanges.
Id. ¶¶ 186, 210. Dr. King stated in that meeting that he would “consider” allowing Professor
Woytowicz to teach again if she agreed to an “informal resolution,” but “did not say that he
would appoint Professor Woytowicz to teach . . . or that Defendants would forego their power to
bar her from teaching [in the future].” Id. ¶ 197. Professor Woytowicz objected to what she
perceived as retaliatory behavior by the University and denied violating the Policy. Id. ¶¶ 198,
207.
6 On February 7, 2017, Professor Woytowicz noticed that her name was not on the
Chemistry Department’s summer teaching schedule. Id. ¶ 224. Professor Woytowicz spoke with
Dr. King, who explained that “[h]e was barring her from teaching these courses because of what
she had done” and that “he would never let her teach again while he was Chair of the Chemistry
Department.” Id. ¶ 227. The next day, Professor Woytowicz objected to this action through
counsel, but Dr. King did not change his mind. Id. ¶¶ 228–31.
On February 14, 2017, Professor Woytowicz sent a 26-page response to Mr. Muhammad
countering the allegations presented during the January 2017 meeting and objecting to any
finding of misconduct. Id. ¶ 233. The response included a declaration from a former roommate of
the complainant “stating that he never saw or heard anything to indicate that there had been a
sexual relationship between Professor Woytowicz and the student complainant.” Id. ¶¶ 234–35.
In addition, she requested that Dr. King allow her to continue teaching Chemistry courses and
that the University reimburse her for attorney’s fees and expenses. Id. ¶ 235. On February 24,
2017, Professor Woytowicz officially rejected the informal resolution proposed at the January
meeting. Id. ¶ 237.
On March 5, 2017, Dean Arnesen notified Professor Woytowicz by email that Mr.
Muhammad had concluded his administrative review of the complaint and that Dean Arnesen
had decided not to initiate formal proceedings against her under the University Policy. Id. ¶ 240.
On March 10, 2017, Professor Woytowicz and her counsel met with Dr. King, Dean Arnesen,
and counsel for the University. Id. ¶ 242. Dr. King and Dean Arnesen represented that this
meeting was a “supervisor-subordinate” conversation outside of the scope of Title IX
proceedings. Id. ¶ 243. However, Dr. King and Dean Arnesen repeatedly suggested that
7 Professor Woytowicz had engaged in “inappropriate” conduct and refused to answer her
questions regarding the allegations against her. Id. ¶¶ 246–49.
On March 15, 2017, Dr. King issued a written reprimand of Professor Woytowicz, which
again stated that she would not be reappointed to teach summer courses in the Chemistry
Department. Id. ¶¶ 286–87. In May, Professor Christopher Bracey, Vice Provost of Faculty
Affairs at the Elliott School of International Affairs, notified Professor Woytowicz that, after
conversations with Dr. King and Dean Arnesen and after reviewing Dr. King’s written
reprimand, he was also barring her from teaching a spring semester course at the Elliott School.
Id. ¶¶ 289–92. Professor Woytowicz communicated her objection to this decision to Vice
Provost Bracey, but he refused to reconsider his decision or meet with her per her request. Id. ¶¶
296–97.
On November 15, 2017, Professor Woytowicz filed suit in D.C. Superior Court, see
Notice of Removal ¶ 1, ECF No. 1, and Defendants removed the case to this Court, see id. ¶¶ 3–
7. Professor Woytowicz has since amended her complaint to bring her constitutional claims
against Defendants Muhammad, King, Arnesen, and Bracey under a Bivens cause of action
instead of 42 U.S.C. § 1983, Am. Compl. ¶ 4, but has otherwise preserved her original claims
that the University violated her First and Fifth Amendment rights; and that all Defendants
violated her right to freedom from conspiracy under the Ku Klux Klan Act, 42 U.S.C. § 1985;
violated her rights to freedom from sex discrimination, sexual harassment, retaliation, and
retaliatory harassment under the District of Columbia Human Rights Act; breached her
contractual rights under the University’s Collective Bargaining Agreement, its Title IX policy,
and an agreement it had made with her to teach a writing seminar; and intentionally inflicted
emotional distress on her. Compare Compl. ¶¶ 3, 463–540, ECF No. 1-1 with Am. Compl. ¶¶ 4,
8 583–667. She seeks back pay, compensatory damages, punitive damages, and injunctive relief.
See Am. Compl. ¶¶ 550–574. Defendants have moved to dismiss Professor Woytowicz’s
Amended Complaint, and their motion is now ripe for decision.
III. LEGAL STANDARD
The Federal Rules of Civil Procedure require that a complaint contain “a short and plain
statement of the claim” in order to give the defendant fair notice of the claim and the grounds
upon which it rests. Fed. R. Civ. P. 8(a)(2); accord Erickson v. Pardus, 551 U.S. 89, 93 (2007)
(per curiam). A motion to dismiss under Rule 12(b)(6) does not test a plaintiff’s ultimate
likelihood of success on the merits, but rather tests whether a plaintiff has properly stated a claim
for which relief can be granted. It is not necessary for the plaintiff to plead all elements of her
prima facie case in the complaint. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511–14
(2002); Bryant v. Pepco, 730 F. Supp. 2d 25, 28–29 (D.D.C. 2010). Nevertheless, “[t]o survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This means that a plaintiff’s factual
allegations “must be enough to raise a right to relief above the speculative level, on the
assumption that all the allegations in the complaint are true (even if doubtful in fact).” Twombly,
550 U.S. at 555–56 (citations omitted). “Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements,” are therefore insufficient to withstand a motion to
dismiss. Iqbal, 556 U.S. at 678. A court need not accept a plaintiff’s legal conclusions as true,
see id., nor must a court presume the veracity of the legal conclusions that are couched as factual
allegations, see Twombly, 550 U.S. at 555.
9 IV. ANALYSIS
A. The Constitutional Claims
Professor Woytowicz has brought Bivens claims against the University and four of its
employees for violating her First and Fifth Amendment rights in the course of the University’s
Title IX investigation. 2 See Am. Compl. ¶¶ 4(a)–(i). Defendants have moved to dismiss her
constitutional claims on the ground that “private universities and their employees are not
[governmental actors] subject to First and Fifth Amendment claims.” Defs.’ Mot. at 9. Professor
Woytowicz responds that the University and its employees are governmental actors liable for
constitutional violations because they: (1) performed a traditionally exclusive government
function by conducting an “investigation[] to determine if Federal law [was] violated,” Pl.’s
Opp’n at 16; see also Am. Compl. ¶¶ 309–310, 438–445 (describing Mr. Muhammad’s
responsibilities which include “conduct[ing] investigations of [Title IX] complaints”); (2)
received substantial funding from the government, see Pl.’s Opp’n at 13; see also Am. Compl. ¶¶
302–306, 430–435 (arguing that Defendants Muhammad, King, Arnesen, and Bracey were
“recipients” subject to Title IX requirements); (3) were bound by Title IX regulations, see Pl.’s
Opp’n at 13–14; Am. Compl. ¶¶ 306–312; (4) attempted to follow those regulations to
investigate the complaint at issue, Am. Compl. ¶¶ 460–462; and (5) were required to revise their
2 More specifically, Professor Woytowicz claims that Defendants violated her First Amendment rights to (i) freedom of speech by prohibiting “communications with . . . present and former students,” Am. Compl. ¶¶ 583–587, (ii) freedom from retaliation or “retaliatory harassment” for maintaining her innocence, id. ¶¶ 590–591, 607–611, (iii) freedom to associate or “intimate[ly] associat[e] with present or former students,” id. ¶¶ 597–606; and her Fifth Amendment rights to (iv) freedom from sex discrimination, id. ¶¶ 614–616, (v) due process of law, id. ¶¶ 619–621, (vi) freedom from “retaliatory harassment for asserting her right to due process,” id. ¶¶ 624–626, and (vii) freedom from Defendants “changing her status and barring her from teaching in violation of her liberty interests without the due process of law.” Id. ¶¶ 627– 630.
10 Title IX Policy after entering into the Voluntary Resolution Agreement with OCR in 2011, see
Pl.’s Opp’n at 16; Am. Compl. ¶¶ 313–14. For the reasons stated below, the Court finds that the
University and its employees were not government actors and therefore grants Defendants’
motion to dismiss the constitutional claims against them.
As a preliminary matter, although Professor Woytowicz describes her claims against the
University as arising under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, (1971),
her claims against the University may not be brought under Bivens because entities, unlike
individuals, are exempt from Bivens liability. See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66
(2001); Kauffman v. Anglo-Am. Sch. of Sofia, 28 F.3d 1223, 1225–28 (D.C. Cir. 1994). As such,
Professor Woytowicz has failed to cite a proper means by which she may sue the University for
its alleged violations of her constitutional rights.
However, even if she had cited a valid cause of action against the University for
constitutional violations, she has still failed to state a claim against the University and four of its
employees because in order to raise a constitutional claim against a private entity or its
employees, a plaintiff must allege that the entity or individual was a state or governmental actor
or was engaging in state or government action. 3 Abu-Jamal v. Nat’l Pub. Radio, No. 96-0594,
1997 WL 527349, at *4 (D.D.C. Aug. 21, 1997), aff’d, 159 F.3d 635 (D.C. Cir. 1998). “[T]here
can be no violation of the Constitution without [governmental] action—in this case, action by the
federal government or under color of federal law—and [governmental] action requires that the
party charged with the deprivation must be a person [or entity] who may fairly be said to be a
[governmental] actor.” Daniels v. Union Pac. R. Co., 480 F. Supp. 2d 191, 196 (D.D.C. 2007),
3 The terms “governmental actor” and “state actor” may be used interchangeably. See, e.g., Brug v. Nat’l Coal. for Homeless, 45 F. Supp. 2d 33, 42 n.14 (D.D.C. 1999).
11 aff’d, 530 F.3d 936 (D.C. Cir. 2008) (quoting Am. Mfrs. Mutual Ins. Co. v. Sullivan, 526 U.S. 40,
50 (1999) (internal quotation marks omitted)). A court may find that a private entity or individual
is a governmental actor when (1) the private entity or individual performs a function that is
“traditionally exclusively reserved to [government],” LaRouche v. Fowler, 152 F.3d 974, 990
(D.C. Cir. 1998) (quoting Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 157–58 (1978)); or (2) there
is “a sufficiently close nexus between the [government] and the challenged action of the
[regulated entity] so that the action of the latter may be fairly treated as that of the [government]
itself,” Vill. of Bensenville v. Fed. Aviation Admin., 457 F.3d 52, 62 (D.C. Cir. 2006) (quoting
Blum v. Yaretsky, 457 U.S. 991, 1004 (1982)).
As to the first type of government action by a private entity, the Supreme Court and the
D.C. Circuit have found only in limited circumstances that a private entity has exercised a
traditionally exclusive governmental or “public” function. See, e.g., Flagg Bros., 436 U.S. at 164
(resolution of private contractual disputes does not fall within the exclusive prerogative of the
State, although the regulation of elections and the selection of public officials do); All. for Cmty.
Media v. FCC, 56 F.3d 105, 113 (D.C. Cir. 1995) (decisions as to which programs would be
shown on cable television systems are not traditionally within the exclusive province of the
government, but, as the Supreme Court has held, vetoing liquor licenses and entering and
occupying private property are), aff’d in part, rev’d in part sub nom. Denver Area Educ.
Telecomm. Consortium, Inc. v. FCC., 518 U.S. 727 (1996); cf. Goldstein v. Chestnut Ridge
Volunteer Fire Co., 218 F.3d 337, 348 (4th Cir. 2000) (volunteer fire fighter company performed
duties typically reserved to the state).
Courts in this Circuit have held that providing higher education is not an exclusively
public function, see, e.g., Remy v. Howard Univ., 55 F. Supp. 2d 27, 30 (D.D.C. 1999), and
12 specifically that the Defendant University is not a state actor by virtue of providing higher
education, see Greenya v. George Wash. Univ., 512 F.2d 556, 561 n.10 (D.C. Cir. 1975).
However, Professor Woytowicz’s theory of government action is not based on the University and
its employees’ provision of higher education. Rather, Professor Woytowicz argues that the
University and its employees performed a traditionally exclusive governmental function by
“conduct[ing] [an] . . . investigation[] to determine if Federal law [was] violated.” Pl.’s Opp’n at
16.
While courts in this Circuit have yet to address this theory, courts in other jurisdictions
have found that private universities “investigating and disciplining employees for university
policy violations,” including for allegations of misconduct under Title IX, are not exercising a
public function. See, e.g., Collins v. Northwestern Univ., 164 F. Supp. 3d 1071, 1077 (N.D. Ill.
2016) (finding that the university human resources department’s investigation of a Title IX
complaint against the plaintiffs did not constitute an exercise of an exclusive governmental
function). Indeed, many private entities routinely investigate and self-police to ensure that they
are in compliance with federal laws, whether they be anti-discrimination laws, government
procurement laws, securities laws, or the Foreign Corrupt Practices Act. Yet Professor
Woytowicz has not pointed to a single case in which such routine activities have been found to
bring those otherwise private entities within the sphere of government action. Accordingly, the
Court finds that Professor Woytowicz has failed to sufficiently allege that the University
engaged in a traditionally exclusive governmental function.
More often, courts in this Circuit have found that a private entity engages in
governmental action when “there is a sufficiently close nexus between [the government] and the
challenged action of [the regulated entity].” See, e.g., Bensenville, 457 F.3d at 62 (quoting Blum,
13 457 U.S. at 1004); see also Peacock v. District of Columbia, 794 F.3d 31, 43 (D.C. Cir. 2015). It
is well-established that extensive regulation of a private entity alone does not create a sufficient
nexus for finding governmental action. See Rendell-Baker v. Kohn, 457 U.S. 830, 841–42
(1982); Jackson v. Metro. Edison Co., 419 U.S. 345, 357–58 (1974). Furthermore, a
government’s “[m]ere approval of or acquiescence in the initiatives of a private party” does not
give rise to a sufficient nexus. Bensenville, 457 F.3d at 64 (quoting Blum, 457 U.S. at 1004).
Finally, receipt of significant government funding does not create a sufficiently close nexus to
transform a private entity into a governmental actor. See, e.g., Bensenville, 457 F.3d at 64 (“The
receipt of public funds, even of ‘virtually all’ of an entity’s funding, is not sufficient to fairly
attribute the entity’s actions to the government.” (citing Rendell–Baker, 457 U.S. at 840–41));
Williams v. Howard Univ., 528 F.2d 658, 660 (D.C. Cir. 1976). This is so even when the
government has attached various conditions to receipt of such funding. See Greenya, 512 F.2d at
561 (finding that conditions attached to the George Washington University’s “government
grants, loan, and loan guarantees” were not so pervasive as to “trigger constitutional guarantees
in the University’s relations with its employees”). Consequently, Professor Woytowicz’s
argument that the University was a governmental actor because it received substantial federal
funding, conditioned upon the University’s compliance with Title IX regulations, is
unpersuasive. See Am. Compl. ¶¶ 302–312; Pl.’s Opp’n at 13–14.
Instead, to meet the “nexus” test, a plaintiff must typically show that the government
exercised “coercive power” or “significant encouragement” over a private entity or individual’s
actions or decisions. See Bensenville, 457 F.3d at 64; Lunceford v. D.C. Bd. of Educ., 745 F.2d
1577, 1581 (D.C. Cir. 1984); see also Lyles v. Hughes, 964 F. Supp. 2d 4, 7 (D.D.C. 2013) (“[A]
challenged activity may be [governmental] action when it results from the [government’s]
14 exercise of coercive power, when the [government] provides significant encouragement, either
overt or covert, or when a private actor operates as a willful participant in joint activity with the
[government] or its agents.”). Specifically, even when a legislative or regulatory scheme is
imposed on a private entity, discretionary decisions made under such a scheme are not likely to
constitute governmental action. See Daniels v. Union Pac. R.R. Co., 480 F. Supp. 2d 191, 196–
97 (D.D.C. 2007) (holding that although the Federal Railway Administration “heavily regulated”
railroads by, among other actions, setting eligibility standards for engineers, because the
defendant railroad company “exercise[d] a substantial amount of discretion in designing and
implementing [its] procedures for certifying engineers, and the federal government d[id] not
participate in these ground level decisions,” there was no state action by the defendant); see also
All. for Cmty. Media, 56 F.3d at 116.
Similarly, the government’s thorough vetting and approval of a private entity’s
procedural scheme does not automatically transform the entity’s, or its employees’, actions under
the approved scheme into governmental action. See Bensenville, 457 F.3d at 65–66 (finding that
the Federal Aviation Administration’s thorough screening and approval of the defendant City’s
airport layout plan did not implicate state action because the City was the “inventor, organizer,
patron, and builder of the [airport] expansion,” and the “length or intensity of [the agency’s]
attention to the actions of the party before approval” could not change the fact that the agency
gave only its mere approval without creating the layout plan on its own); cf. Jackson, 419 U.S. at
357 (rejecting a Fourteenth Amendment claim because although “a [private] utility may
frequently be required . . . to obtain approval for practices a business regulated in less detail
would be free to institute without any approval from a regulatory body . . . [a]pproval by a state
utility commission [which] has not [ordered a] proposed practice . . . does not transmute a
15 practice initiated by the utility and approved by the commission into state action.” (internal
quotation marks omitted)). In cases where private universities have conducted Title IX
investigations, courts in other jurisdictions have found that unless a plaintiff sufficiently alleged
that the government was directly involved in a university’s Title IX proceedings or compelled
the university to reach a particular disciplinary outcome, there was no governmental action on
the part of the institution. See Doe v. Case W. Reserve Univ., No. 1:17 CV 414, 2017 WL
3840418, at *9–10 (N.D. Ohio Sept. 1, 2017); Doe v. Washington & Lee Univ., No. 6:14-cv-
00052, 2015 WL 4647996, at *8–9 (W.D. Va. Aug. 5, 2015).
Therefore, Professor Woytowicz’s arguments that the University and its employees were
governmental actors because they (1) were bound by Title IX regulations, (2) attempted to
follow those regulations in carrying out their investigation of Professor Woytowicz, and (3) were
forced to revise the University’s policies under the 2011 Agreement with OCR also fail to
demonstrate government action because they do not indicate that the government coerced or
exercised significant influence over the University or its employees in their creation of the
University’s Title IX policies or more particularly in Defendants’ Title IX investigation of
Professor Woytowicz. Although the government requires compliance with Title IX regulations as
a precondition of receiving funding, the University and its employees exercised ample discretion
in (1) establishing their own Title IX definitions and procedures, see, e.g., Am. Compl. ¶¶ 61–63
(quoting the University’s own definition of “Consensual Relationships”); see generally
University Policy; and (2) implementing those policies during their investigation of Professor
Woytowicz, see, e.g., Am. Compl. ¶¶ 162–164, 186 (explaining the University’s interpretation of
“consensual relationships” to include “verbal or physical conduct of a sexual nature”); id. ¶¶
170–172, 197 (discussing Defendants’ proposal of an informal resolution); id. ¶ 240 (citing Dean
16 Arnesen’s email where he explained his decision not to initiate a formal hearing upon conclusion
of the administrative review). Because regulation of a private entity normally does not constitute
a sufficient “nexus” without coercion or significant encouragement by the government, and
because the University here exercised broad discretion within the bounds of the government’s
regulatory scheme, the Court finds that Professor Woytowicz’s allegations are insufficient to
constitute state action. See Daniels, 480 F. Supp. 2d at 193, 197; see also Rendell-Baker, 457
U.S. at 841–42.
Furthermore, Professor Woytowicz’s complaint contains no factual allegations to support
her claims that the government (1) forced the University to enter into the 2011 Agreement, or (2)
made the University adopt certain revisions to its policies. See Pl.’s Opp’n at 13–14, 16.
Professor Woytowicz asserts that “[t]he government has forced the University to change its
policies to make them more to the government’s liking,” without making any factual allegations
as to what changes the University actually made after entering into the Agreement and which of
OCR’s actions constituted coercion or significant encouragement. Pl.’s Opp’n at 16. 4 However,
even when viewing the facts alleged in Professor Woytowicz’s complaint in the light most
favorable to her, it appears that the parties entered into the Agreement voluntarily and that
whatever revisions the University made would have been subject merely to OCR’s approval. See
generally Agreement (stating that the Agreement is “[v]oluntary” between the parties).
Accordingly, Professor Woytowicz has failed to sufficiently allege that the government coerced
4 Professor Woytowicz articulates this allegation for the first time in her opposition briefing. See Pl.’s Opp’n at 16. Her amended complaint alleged only that the University’s policies violated the terms of the Resolution Agreement. See Am. Compl. ¶¶ 316–320. But plaintiffs may not amend their complaints through briefs in opposition to motions to dismiss. See Middlebrooks v. Godwin Corp., 722 F. Supp. 2d 82, 87 n.4 (D.D.C. 2010).
17 or significantly encouraged the University to revise its Title IX policies. See Bensenville, 457
F.3d at 66–67. 5
For the foregoing reasons, the Court finds that because Professor Woytowicz has not
alleged facts sufficient to plead that the University and its four employees involved in Professor
Woytowicz’s case were governmental actors, she cannot bring constitutional claims against
them. As such, Professor Woytowicz cannot pursue her Bivens claims and the Court dismisses
Counts 1 through 9.
B. The § 1985 Claim
Professor Woytowicz also claims that Defendants violated her First and Fifth
Amendment rights under the Ku Klux Klan Act, 42 U.S.C. § 1985. 6 Defendants seek dismissal
5 Even if Professor Woytowicz had pleaded facts indicating that the government had coerced the University into adopting its current Title IX policies, because there is no indication in Professor Woytowicz’s Amended Complaint that the government was directly involved in or dictated the outcome of the University’s investigation, Professor Woytowicz has failed to plead state action. See Doe v. Washington & Lee Univ., 2015 WL 4647996, at *9 (noting that, “for Fifth Amendment protections to apply, the government must have compelled the act of which Plaintiff complains,” and finding that the state action requirement was not met when Plaintiff did not “allege that the government deprived [the university] of its autonomy to investigate and adjudicate charges”). 6 Professor Woytowicz alleged in her complaint that Defendants violated her “right under the (Ku Klux Klan) Act to be free from conspiracies to deprive her of her rights as a citizen of the United States” based on “animus against her [for] her female gender.” Am. Compl. ¶ 633. The Act, however, “provides no substantial rights itself to the class conspired against . . . [and therefore] [t]he rights, privileges, and immunities that § 1985(3) vindicates must be found elsewhere.” United Bhd. of Carpenters & Joiners of Am., Local 610, AFL-CIO v. Scott, 463 U.S. 825, 833 (1983) (internal quotation marks omitted); see also Hairston v. District of Columbia, 638 F. Supp. 198, 206 (D.D.C. 1986). Additionally, § 1985 may not be used to vindicate rights an employee might have under Title VII for sex discrimination. See Great Am. Fed. Sav. & Loan Ass’n v. Novotny, 442 U.S. 366, 378 (1979). Nonetheless, because Professor Woytowicz stated earlier in her complaint that Defendants violated § 1985(3) by conspiring to (1) deprive her of her “[c]onstitutionally guaranteed rights,” Am. Compl. ¶ 4(j), including her rights to “due process” and “her property interest in continued teaching,” and (2) punish her for “defending herself against the . . . complaint” and “resisting an unjustified reprimand,” id. ¶ 503, the Court construes her complaint to allege that Defendants conspired to deprive her of her First and Fifth
18 of this claim on the ground that § 1985(3) does not provide a remedy for conspiracies among
private actors. See Defs.’ Mot. at 15–16. Professor Woytowicz responds that Defendants are
governmental actors, and that even if the Court were to find otherwise, she has sufficiently
alleged the requisite element of governmental “involvement,” as distinguished from
governmental action, to raise a § 1985(3) claim. See Pl.’s Opp’n at 18–19. The Court agrees with
Defendants and dismisses Professor Woytowicz’s § 1985 claim because she has failed to
adequately plead governmental action or involvement as required to allege a conspiracy to
deprive an individual of her First or Fifth Amendment rights under § 1985(3).
To state a claim under § 1985(3), a plaintiff must allege
(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, . . . and (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in her person or property or deprived of any right or privilege of a citizen of the United States. The statute does not apply to all conspiratorial tortious interferences with the rights of others, but only those motivated by some class- based, invidiously discriminatory animus.
Leonard v. George Washington Univ. Hosp., 273 F. Supp. 3d 247, 256 (D.D.C. 2017) (quoting
Atherton v. D.C. Office of Mayor, 567 F.3d 672, 688 (D.C. Cir. 2009)). In some instances, a
plaintiff who alleges conspiracy to interfere with her constitutionally protected rights may not be
required to plead governmental action, see, e.g., Griffin v. Breckenridge, 403 U.S. 88, 105–06
(1971) (finding that the “right of interstate travel is constitutionally protected, does not
necessarily rest on the Fourteenth Amendment, and is assertable against private as well as
governmental interference”). However, if the allegation involves a “predicate constitutional
Amendment rights in violation of § 1985(3), based on her earlier articulation of those claims. See infra note 2.
19 violation [that] itself requires [a showing of] governmental action, then so does [the] § 1985(3)
claim.” Bois v. Marsh, 801 F.2d 462, 476 n.6 (D.C. Cir. 1986) (citing Scott, 463 U.S. at 831–34);
see also Scott, 463 U.S. at 833 (“Because that Amendment restrains only official conduct, to
make out their § 1985(3) case, it was necessary for respondents to prove that the state was
somehow involved in or affected by the conspiracy.”).
Courts in this Circuit have held that First and Fifth Amendment violation claims require a
showing of governmental action, and therefore a plaintiff who alleges conspiracy to interfere
with First and Fifth Amendment rights under § 1985(3) must also sufficiently plead that
defendants were governmental actors. See, e.g., Anderson v. USAir, Inc., 818 F.2d 49, 56 (D.C.
Cir. 1987) (finding that the plaintiff’s “Fifth Amendment claim fails because [the] private
corporation[] is not a state actor.”); Provisional Gov’t of Republic of New Afrika v. Am. Broad.
Companies, Inc., 609 F. Supp. 104, 109 (D.D.C. 1985) (dismissing the plaintiff’s First
Amendment claim under § 1985(3) because the plaintiff did not sufficiently plead “the requisite
element of state action.”). Because, as explained above, Professor Woytowicz has failed to
sufficiently plead governmental action by Defendants, the Court dismisses her § 1985 claim.
C. Breach of Contract Claims
The Court next turns to Professor Woytowicz’s breach of contract claims, which have
triggered several disagreements between the parties, such as: (1) whether Professor Woytowicz
may withdraw her breach of the Collective Bargaining Agreement claim in her opposition brief
to Defendants’ motion to dismiss; and (2) whether Professor Woytowicz has alleged any breach
of contract claims that are (a) not preempted by Section 301 of the Labor Management Relations
Act and (b) not opposed by Defendants. See Defs.’ Mot. at 17–19; Pl.’s Opp’n at 21; Defs.’
Reply at 6–7. As explained below, the Court finds that Professor Woytowicz may not withdraw
20 her breach of the CBA claim through her opposition brief, and also finds that her claim is
preempted by Section 301 of the LMRA and has not been properly exhausted as required by the
Act. Therefore, the Court dismisses her claim for breach of the CBA. However, the Court agrees
with Professor Woytowicz that she has raised other breach of contract claims that are neither
preempted by Section 301 nor opposed by Defendants. The Court declines to exercise
supplemental jurisdiction over those claims and, as explained below, will remand them to D.C.
Superior Court.
1. Attempt to Withdraw a Claim In her opposition brief, Professor Woytowicz informed the Court that she “withdraws her
claim for breach of the collective bargaining agreement” and the corresponding paragraphs from
the Amended Complaint. Pl.’s Opp’n at 21. She provides no reason for this decision. See Pl.’s
Opp’n at 21. However, she asserts that she “has alleged other breach of contract claims, which
Defendants have not moved to dismiss,” Pl.’s Opp’n at 21 (emphasis added), and therefore,
which must survive Defendants’ motion.
Defendants chide Professor Woytowicz’s response as “nonsense” for two reasons. Defs.’
Reply at 6. First, Defendants argue that “[Professor] Woytowicz cannot use her opposition to a
motion to dismiss to ‘withdraw’ an allegation she cannot sustain.” Defs.’ Reply at 6 (citing
Kingman Park Civic Ass’n v. Gray, 27 F. Supp. 3d 142, 165 n.10 (D.D.C. 2014)). In support of
this argument, Defendants point out that they raised this preemption issue in their motion to
dismiss her original complaint, but Professor Woytowicz still chose to include her breach of the
CBA claim in her Amended Complaint. See Defs.’ Reply at 6; see also Defs.’ Mot. Dismiss
(“Defs.’ 1st Mot.”) at 15–17, ECF No. 4. Second, Defendants challenge Professor Woytowicz’s
assertion that she has alleged breaches of contracts “other than the collective bargaining
agreement.” Defs.’ Reply at 6–7. The Court agrees with Defendants that the breach of the CBA
21 claim cannot be withdrawn through Professor Woytowicz’s opposition brief, and therefore that
the Court must evaluate the sufficiency of her pleadings. However, the Court finds that Professor
Woytowicz has indeed raised other breach of contract claims that she has not attempted to
withdraw, and which Defendants have not challenged, and which therefore survive Defendants’
motion to dismiss.
Under Federal Rule of Civil Procedure 15, a party may amend its pleading within 21 days
of filing, with the consent of the parties, or with the consent of the court. See Fed. R. Civ. P.
15(a)(1), (a)(2). A court may, for example, permit a party to correct its pleading when it has
made an innocent mistake. See, e.g., Stewart v. Bowser, 296 F. Supp. 3d 88, 91 (D.D.C. 2017)
(allowing plaintiff to amend its complaint to substitute the correct defendants). However, “[i]t is
well settled law that a plaintiff cannot amend its complaint by the briefs in opposition to a
motion to dismiss.” Kingman Park Civic Ass’n v. Gray, 27 F. Supp. 3d 142, 160 n.7 (D.D.C.
2014) (citations omitted). “To hold otherwise would mean that a party could unilaterally amend a
complaint at will.” Morgan Distrib. Co. v. Unidynamic Corp., 868 F.2d 992, 995 (8th Cir. 1989);
see Friedman v. Village of Skokie, 763 F.2d 236, 239 (7th Cir. 1985) (“Filing an amendment to a
complaint without seeking leave of court or written consent of the parties is a nullity.”). Courts in
this District treat a withdrawal of a claim as it would an amendment to a complaint. See, e.g.,
Barnes v. District of Columbia, 42 F. Supp. 3d 111, 120 (D.D.C. 2014) (treating withdrawal of
claims as a motion to amend the complaint); Featherston v. District of Columbia, 910 F. Supp.
2d 1, 10–11 (D.D.C. 2012) (same).
The Court finds Professor Woytowicz’s attempt to withdraw her claim to be an effort to
amend her Amended Complaint, and as such, cannot allow her to withdraw her breach of the
CBA claim and the corresponding paragraphs through her opposition brief. See, e.g., Barnes, 42
22 F. Supp. 3d at 120; Featherston, 910 F. Supp. 2d at 10–11. Neither Defendants nor this Court
have consented to such an amendment. See Fed. R. Civ. P. 15(a)(1), (a)(2). And even though she
does not expressly provide any reason for the withdrawal, it does not appear that Professor
Woytowicz seeks to correct an innocent mistake. Cf. Stewart, 296 F. Supp. 3d at 91 (allowing
plaintiff to substitute the correct defendants). Additionally, Professor Woytowicz does not offer
any reason as to why she should be permitted to withdraw this claim now or why she did not
withdraw this claim before filing her amended complaint, especially after Defendants raised the
preemption issue in their first motion to dismiss. See Pl.’s Opp’n at 21; Defs.’ Reply at 6; Defs.’
1st Mot. at 15–17. Therefore, the Court cannot allow Professor Woytowicz to withdraw her
breach of the CBA claim, and must evaluate the sufficiency with which it was pled.
2. Preemption and Exhaustion Under the Labor Management Relations Act
Professor Woytowicz has sued the University and four of its employees for violating her
rights under her union’s Collective Bargaining Agreement with the University. As explained
above, when Defendants moved to dismiss this claim as improperly pleaded, Professor
Woytowicz attempted to withdraw the claim in her opposition to Defendants’ motion to dismiss,
rather than defend the claim against Defendants’ arguments. For the reasons given below, the
Court dismisses Professor Woytowicz’s claim for breach of the CBA.
As Defendants have argued, the proper framework with which to review Professor
Woytowicz’s breach of the CBA claim is Section 301 of the LMRA. See 29 U.S.C. § 185;
Jackson v. Teamsters Local Union 922, 991 F. Supp. 2d 71, 80 (D.D.C. 2014). “Section 301 of
the [LRMA] confers federal jurisdiction over ‘[s]uits for violation of contracts between an
employer and a labor organization representing employees in an industry affecting commerce.’”
Id. (quoting 29 U.S.C. § 185(a)). The statutory language is broadly read to also include suits “by
23 and against individual employees.” Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 562
(1976); see also Carrington v. United States, 42 F. Supp. 3d 156, 161 (D.D.C. 2014).
Accordingly, Congress intended Section 301 to “completely preempt[] any action predicated
upon state law if that action ‘depends upon the meaning of a collective-bargaining agreement.’”
Cephas v. MVM, Inc., 520 F.3d 480, 484 (D.C. Cir. 2008) (quoting Lingle v. Norge Div. of
Magic Chef, Inc., 486 U.S. 399, 405–06 (1988)); see, e.g., Franchise Tax Bd. v. Constr. Laborers
Vacation Trust, 463 U.S. 1, 23 (1983) (reviewing a breach of a CBA claim under Section 301
even though “the petitioner had undoubtedly pleaded an adequate claim for relief under the state
law of contracts and had sought a remedy available only under state law.”).
“Although an employee may sue an employer under § 301 for breach of a CBA, the
employee first must exhaust the grievance and arbitration procedures in the CBA.” Cephas, 520
F.3d at 485 (citing Republic Steel Corp. v. Maddox, 379 U.S. 650, 652-53 (1965)); cf. Clayton v.
Automobile Workers, 451 U.S. 679, 687–98 (1981) (explaining that while an employee must
exhaust CBA grievance procedures before filing suit, she will not always need to exhaust
internal union grievance procedures first). Professor Woytowicz’s Amended Complaint contains
no allegations that she has exhausted the CBA’s grievance or arbitration procedures. Cf. Am.
Compl. ¶ 658 (explaining that if she were to engage in the grievance procedures outlined in the
University’s CBA, she would waive her ability to bring the other claims she has brought in this
suit). Therefore, Defendants argue that Professor Woytowicz’s breach of the CBA claim is (1)
preempted by Section 301 of the LMRA, and (2) must be dismissed because she has failed to
first participate in the CBA’s grievance procedures. See Defs.’ Mot. at 18–19. The Court agrees
on both counts.
24 Professor Woytowicz’s breach of the CBA claim is preempted by Section 301 of the
LMRA. Section 301 governs the claim because it is brought by an individual employee against
her employer for violation of a CBA and “depends upon the meaning of a collective-bargaining
agreement.” Lingle, 486 U.S. at 406; see 29 U.S.C. § 185; Hines, 424 U.S. at 562; Am. Compl. ¶
660 (“All Defendants have breached Prof. Woytowicz’s contractual rights under the Collective
Bargaining Agreement.”). Therefore, even if Professor Woytowicz properly alleges an “action
predicated upon state law,” Section 301 preempts it. Cephas, 520 F.3d at 484 (citation omitted);
see also Franchise Tax Bd., 463 U.S. at 23. Because Professor Woytowicz’s breach of the CBA
claim is preempted by Section 301, and because Professor Woytowicz implicitly admits that she
did not engage in the CBA’s grievance and arbitration procedures before bringing this action, see
Am. Compl. ¶ 658, her claim must be dismissed.
3. Additional Breach of Contract Claims
It appears, however, that Professor Woytowicz has alleged additional breach of contract
claims that are not preempted by Section 301 and not opposed in Defendants’ motion to dismiss.
Defendants argue that Professor Woytowicz “alleges no breach of contract other than the
collective bargaining agreement.” See Defs.’ Reply Supp. at 6–7 (emphasis in original). And
Professor Woytowicz does not identify which breach of contract claims she refers to when she
asserts that “Plaintiff has alleged other breach of contract claims, which Defendants have not
moved to dismiss,” Pl.’s Opp’n at 21. However, Professor Woytowicz indeed refers to two other
breaches of contracts under Count 14 along with her breach of the CBA claim: (1) breach of
Defendants’ Title IX policy and (2) breach of a “contractual right to conduct the program for the
Writing in the Discipline project.” Am. Compl. ¶¶ 656, 661–62. Neither of these allegations
would be preempted by Section 301 of the LMRA because they do not “depend[] on the meaning
25 of a collective-bargaining agreement.” Lingle, 486 U.S. at 406; see 29 U.S.C. § 185. And neither
of these allegations were challenged by Defendants in their motion to dismiss the Amended
Complaint. See generally Defs.’ Mot. As such, despite the leanness with which they are pled, see
Am. Compl. 655–663, the Court cannot dismiss these common law contract claims. 7
D. The Remaining State Law Claims
Having dismissed all of Professor Woytowicz’s federal claims, the Court now turns to her
remaining state law claims. Professor Woytowicz has brought sex discrimination, hostile work
environment, and retaliation claims under the DCHRA, as well as common law breach of
contract and intentional infliction of emotional distress claims. See Am. Compl. ¶¶ 636–67; see
also Pl.’s Opp’n at 21, 24–25. Defendants argue that the Court should exercise supplemental
jurisdiction over these counts and dismiss them because Professor Woytowicz has not
sufficiently alleged facts that support each claim and because these claims present no “novel or
complex issue of State law,” see Defs.’ Mot. at 19–27 (quoting 28 U.S.C. § 1367(c)(1)). On the
other hand, Professor Woytowicz contends that she has in fact adequately pleaded her claims, see
Pl.’s Opp’n at 22–30. For the reasons explained below, the Court declines to exercise
supplemental jurisdiction over Professor Woytowicz’s remaining state law claims and remands
those claims to D.C. Superior Court, from which they were originally removed.
After a federal district court dismisses all the federal claims in an action, it may—at its
discretion—exercise supplemental jurisdiction over any remaining state law claims. See
7 As asserted, the breach of “[Defendants’] Title IX policy” is a state law claim. While this breach of contract claim will involve analysis of a policy inspired by a federal statute, Title IX is not “the subject matter of the controversy” and therefore the claim does not arise under federal discrimination law. See Gunn v. Minton, 568 U.S. 251, 257–58 (2013) (remanding plaintiff’s state law malpractice claim involving an allegedly botched patent case after finding that the malpractice claim did not “arise under” federal law).
26 Edmondson & Gallagher v. Alban Towers Tenants Ass’n, 48 F.3d 1260, 1265-66 (D.C. Cir.
1995); United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966) (“[P]endent jurisdiction
is a doctrine of discretion, not a plaintiff’s right.”). The Supreme Court has explained that, “in
the usual case in which all federal-law claims are eliminated before trial, the balance of factors to
be considered under the pendent jurisdiction doctrine . . . will point toward declining to exercise
jurisdiction over the remaining state-law claims.” Carnegie-Mellon Univ. v. Cohill, 484 U.S.
343, 350 n.7 (1988). Considerations of “judicial economy,” “convenience,” and “fairness to
litigants” inform the court’s use of its discretion. United Mine Workers, 383 U.S. at 726; see 28
U.S.C. § 1367(c)(3).
Courts in this District, for example, have justified their decision to not exercise
supplemental jurisdiction over state law claims when: (1) “[a]ll federal claims against
Defendants have been dismissed”; (2) “[t]he case has not progressed in federal court past
motions for judgment on the pleadings”; (3) “discovery has just commenced”; and (4) “the Court
has developed little familiarity with the issues presented.” Mpoy v. Fenty, 901 F. Supp. 2d 144,
158–59 (D.D.C. 2012); see also Rodriguez v. Shulman, 844 F. Supp. 2d 1, 14 (D.D.C. 2012)
(declining to exercise supplemental jurisdiction over state law claims because the case “ha[d] not
progressed past the Motion to Dismiss stage, nor ha[d] the Court invested substantial time and
resources in the case”).
Even though this Court has the discretion to exercise supplemental jurisdiction,
Edmondson, 48 F.3d at 1265–66, the balance of considerations “point[s] toward declining to
exercise jurisdiction over the remaining state-law claims.” Carnegie-Mellon Univ., 484 U.S. at
350 n.7. In this case, the Court has little—if any—justification for adjudicating the state law
claims based on the interest in judicial economy, convenience, or fairness to the parties. See 28
27 U.S.C. § 1367(c)(3); United Mine Workers, 383 U.S. at 726. To the contrary, first, all federal
claims have been dismissed from this action. See supra Section III.A; Mpoy, 901 F. Supp. 2d at
159. Second, this action is still at the motion to dismiss stage. See Mpoy, 901 F. Supp. 2d at 159;
Rodriguez, 844 F. Supp. 2d at 14. Third, the Court has not invested significant time and
resources toward adjudicating the merits of the issues. See Mpoy, 901 F. Supp. 2d at 159;
Rodriguez, 844 F. Supp. 2d at 14. And fourth, because Professor Woytowicz originally filed this
action in D.C. Superior Court, she will not be prejudiced by the case’s return to her preferred
forum. See Turpin v. Ray, 2018 WL 3404149, at *10 (D.D.C. July 12, 2018). On balance, these
considerations compel the Court to decline to exercise supplemental jurisdiction over the
remaining state law claims. Accordingly, this Court remands the remaining state law claims to
D.C. Superior Court.
V. CONCLUSION
For the foregoing reasons, Defendants’ Motion to Dismiss Plaintiff’s Amended
Complaint (ECF No. 10) is GRANTED IN PART AND DENIED IN PART. Professor
Woytowicz’s constitutional and § 1985 claims, as well her claim for breach of the University’s
CBA, are hereby dismissed, while her remaining D.C. statutory and common law claims are
hereby remanded to D.C. Superior Court. An order consistent with this Memorandum Opinion is
separately and contemporaneously issued.
Dated: August 27, 2018 RUDOLPH CONTRERAS United States District Judge
Related
Cite This Page — Counsel Stack
Woytowicz v. George Washington University, Counsel Stack Legal Research, https://law.counselstack.com/opinion/woytowicz-v-george-washington-university-dcd-2018.