Ayanna Blue v. District of Columbia Public ( 2015 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 13, 2015 Decided December 29, 2015
No. 14-7189
AYANNA BLUE,
APPELLANT
v.
DISTRICT OF COLUMBIA,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:10-cv-01504)
Natalie A. Baughman argued the cause for appellant.
With her on the brief was Scott D. Gilbert.
Carl J. Schifferle, Assistant Attorney General, Office of
the Attorney General for the District of Columbia, argued the
cause for appellee. With him on the brief were Karl A.
Racine, Attorney General, Todd S. Kim, Solicitor General,
and Loren L. AliKhan, Deputy Solicitor General.
Before: HENDERSON and TATEL, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge TATEL.
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TATEL, Circuit Judge: Appellant Ayanna Blue alleges
that while attending a District of Columbia school for
emotionally disturbed students, she and a teacher had a
consensual sexual relationship—a relationship that led to the
birth of a child. Blue seeks damages from the District of
Columbia under 42 U.S.C. § 1983, Title IX, and various D.C.
tort laws. The district court dismissed her complaint for
failure to state a claim. For the reasons set forth in this
opinion, we affirm.
I.
Because this case comes to us at the motion to dismiss
stage, “we must accept all factual allegations in the complaint
as true.” NB ex rel. Peacock v. District of Columbia, 794 F.3d
31, 42 (D.C. Cir. 2015). According to the complaint, Robert
Weismiller, the teacher who had a sexual relationship with
Blue, taught at various schools in the D.C. area for much of
the past forty years.
In the mid-1970s, while a gym and driver’s education
teacher at a public high school in Prince George’s County,
Maryland, Weismiller “initiated sexual relationships with two
students.” Second Am. Compl. ¶ 24. Weismiller persuaded
“one 16-year-old student . . . to have sex with him at various
locations, both on and off of school property.” Id. He also
“had sexual intercourse with a second student” who was “17
years old when the sexual relationship began.” Id. ¶ 25.
“While serving as the student’s driver education teacher,
Weismiller on multiple occasions drove the student to a
motel, where they had sex.” Id. After two of her classmates
“informed the student’s parents that they had seen her with
Weismiller,” the girl’s parents “informed the principal of
what the classmates had seen, and demanded that the principal
take action.” Id. The complaint says nothing about what the
3
principal or the school district did in response to the parents’
complaint. Weismiller stopped working at the school in 1978.
Several years later, in 1984, while teaching at a public
middle school in Prince William County, Virginia, Weismiller
“sexually assaulted two eighth grade students.” Id. ¶ 26.
Weismiller’s “misconduct toward the students continued into
their ninth grade year, when he was transferred to the
[students’ high school].” Id. A lawsuit filed in 1986 regarding
this misconduct named as defendants “Weismiller, the Prince
William County School Board, and several school officials.”
Id. Weismiller “was fired . . . as a result of this lawsuit.” Id.
In the late 1990s, after a brief stint at another school,
Weismiller started working at a middle school in the Fairfax
County, Virginia, public school system. Id. ¶ 28. About a year
into Weismiller’s tenure, one of the plaintiffs in the Prince
William County lawsuit, who happened to be working for the
Fairfax schools, saw Weismiller at a school event, “contacted
the Human Resources Department for Fairfax County,
informed officials about her lawsuit against Weismiller, and
was told that he would be terminated from his teaching
position immediately.” Id. ¶ 27. Although the complaint
contains no information about whether the school system
followed through on its promise, it does indicate that
Weismiller stopped working for the school system that year.
Id. ¶ 28.
Setting the stage for this litigation, the District of
Columbia Public Schools (DCPS) hired Weismiller in 2008 to
teach at the Transition Academy at Shadd, a school for
emotionally disturbed students. Ayanna Blue, then eighteen
years old, was enrolled in one of Weismiller’s classes.
Throughout the fall of 2008, Weismiller made advances
toward Blue, including telling her that “[i]f [he] were 30 years
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younger, [he] would marry [her],” “wink[ing] at [her] in
class[,] and kiss[ing] her on numerous occasions.” Id. ¶ 15
(internal quotation marks omitted). Around November 19,
Weismiller “drove [Blue] home from school, and the two had
sexual intercourse in his car.” Id. ¶ 19. Before their
relationship ended in April 2009, “numerous incidents
occurr[ed] in Weismiller’s classroom during the lunch period,
in his car, and at [Blue’s] home.” Id. ¶ 20. Although Blue
never told school officials about the relationship, she did
inform school personnel in December 2008 that she believed
she was pregnant, and they sent her to the health office to take
a pregnancy test, which came back negative. Later, Blue did
become pregnant. After Blue’s daughter was born in late
2009, id. ¶ 21, Blue, her daughter, and Weismiller took a
paternity test, which “[was] positive, indicating a 99.99%
probability that Weismiller is the baby’s father,” id. ¶ 22. The
complaint does not allege that the relationship was ever
involuntary.
Earlier, in May 2009, after DCPS learned that Blue was
pregnant but before she had the baby, it initiated an
investigation of Weismiller. Id. ¶ 29. Weismiller denied that
he had engaged in a sexual relationship with Blue, id. ¶ 30,
but every witness DCPS interviewed—including teachers, an
educational aide, Weismiller’s classroom aide, and a clinical
psychologist—stated that they had seen the two alone together
in Weismiller’s classroom or had heard rumors that the two
were having a sexual relationship, id. ¶¶ 31–36. One witness
saw the two alone together in Weismiller’s classroom “during
the lunch period, with the lights off.” Id. ¶ 36. “Despite these
first-hand accounts, DCPS, at the close of its investigation,
acquitted Weismiller of any misconduct.” Id. ¶ 38. Five
months later, in October 2009, DCPS terminated Weismiller
as part of a “system-wide reduction in force.” Id. ¶ 14.
 5
In 2010, Blue filed suit in the U.S. District Court for the
District of Columbia, asserting numerous claims against
Weismiller; the then-Chancellor of DCPS, Michelle Rhee;
DCPS; and the District of Columbia. Blue has since settled
her claims against Weismiller and dropped her claims against
DCPS and Rhee, so only her claims against the District of
Columbia remain at issue. The district court granted the
District’s motion to dismiss these claims for failure to state a
claim. See Fed. R. Civ. P. 12(b)(6).
On appeal, Blue pursues her claims against the District
under section 1983, Title IX, and various D.C. tort laws. Our
review is de novo. Tuaua v. United States, 788 F.3d 300, 302
(D.C. Cir. 2015).
II.
Accepting the complaint’s allegations as true, one might
think that this case is relatively easy. DCPS hired Weismiller
even though he had a history of preying on children in two
neighboring school systems. DCPS then assigned him to teach
at a school for special education students, where he engaged
in a sexual relationship with a student, Ayanna Blue. Given
this background, most people would reasonably assume that
Blue should have an opportunity to prove her case. But
unfortunately for her, a series of judicially created and
statutory obstacles, all binding on this court, stand in her path.
Section 1983
To state a claim for relief against a municipality under
section 1983, a plaintiff must satisfy two requirements: she
must plead “a predicate constitutional violation” and that “a
custom or policy of the municipality caused the violation.”
Baker v. District of Columbia, 326 F.3d 1302, 1306 (D.C. Cir.
2003). Blue claims that the District’s actions “violated [her]
rights under the Due Process Clause of the Fifth Amendment
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to be free from conduct that violates her bodily integrity,”
Second Am. Compl. ¶ 87, by allowing Weismiller, a teacher,
to engage her, an eighteen-year-old student, in a consensual
sexual relationship. The district court found it unnecessary to
determine whether a right to be free from such a relationship
exists because, even assuming it does, it concluded that Blue
failed to allege that a district policy caused the violation. Blue
v. District of Columbia, 850 F. Supp. 2d 16, 25, 29 (D.D.C.
2012); see also Monell v. Department of Social Services, 436
U.S. 658, 690 (1978). We agree.
This circuit has identified several ways in which a
plaintiff may allege a municipal policy or custom.
Specifically, she may point to (1) “the explicit setting of a
policy by the government that violates the Constitution,” (2)
“the action of a policy maker within the government,” (3) “the
adoption through a knowing failure to act by a policy maker
of actions by his subordinates that are so consistent that they
have become ‘custom,’” or (4) “the failure of the government
to respond to a need (for example, training of employees) in
such a manner as to show ‘deliberate indifference’ to the risk
that not addressing the need will result in constitutional
violations.” Baker, 326 F.3d at 1306 (citations omitted). On
appeal, Blue pursues only one of these theories: that under
certain circumstances, a single decision by a municipal
official with final policymaking authority can constitute a
municipal policy. Id. (citing City of St. Louis v. Praprotnik,
485 U.S. 112, 123–30 (1988) (plurality opinion)). In order for
a municipality to be held liable for the single decision of a
final policymaker, that official must have demonstrated
“deliberate indifference to the risk that a violation of a
particular constitutional or statutory right [would] follow the
decision.” Board of County Commissioners v. Brown, 520
U.S. 397, 411 (1997). Blue alleges that two District decisions
satisfied this standard: the decision to hire Weismiller without
7
conducting a proper background investigation and the
decision not to terminate Weismiller after DCPS investigated
his sexual relationship with Blue.
The second of Blue’s theories merits only brief attention.
Although the district court rejected Blue’s failure-to-fire
claim for multiple reasons, we need address only one: that the
District’s decision to retain Weismiller after the investigation
could not have caused the specific injury that Blue relied upon
as the basis for her section 1983 claim—the sexual
relationship with Weismiller. Blue, 850 F. Supp. 2d at 28.
This is correct. Blue’s relationship with Weismiller ended in
April 2009, a month before DCPS initiated its investigation.
The District’s May decision to retain Weismiller thus could
not have affected the no-longer-existing relationship.
Blue presents a second variation of her failure-to-fire
claim—one that would, if valid, avoid the causation problem.
She contends that the District’s single decision not to
reprimand Weismiller after the District investigated the
relationship demonstrates a municipal policy of ignoring
sexual abuse by teachers. But Blue has cited no decision by
this circuit, nor are we aware of one, that supports such a
theory of municipal liability. As Blue points out, other circuits
have recognized that theory, but in the cases Blue cites, the
municipality failed to respond to improper actions by
numerous municipal officials. McRorie v. Shimoda, 795 F.2d
780, 784 (9th Cir. 1986) (citing actions by numerous prison
guards); Grandstaff v. City of Borger, 767 F.2d 161, 171 (5th
Cir. 1985) (describing “repeated acts of abuse . . . by several
officers in several episodes”); Owens v. Haas, 601 F.2d 1242,
1245 (2d Cir. 1979) (recounting the severe beating of a
prisoner by “[a]pproximately seven guards”). This case is
quite different. Not only does it involve the alleged
misbehavior of only one municipal employee, but, more
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important, DCPS’s May 2009 investigation concluded that
Weismiller never had a sexual relationship with Blue. The
District therefore had no reason to fire Weismiller.
Blue’s second asserted basis for a municipal policy—the
District’s failure to properly screen Weismiller before hiring
him—warrants somewhat more analysis. Blue contends that
the District’s failure to properly screen Weismiller qualified
as a municipal policy because it was a single decision by a
final policymaker. The district court rejected this theory
because Blue failed to “allege[] . . . that the decision to hire
Weismiller without an adequate background check was made
by a final municipal policymaker.” Blue, 850 F. Supp. 2d at
27. Instead, Blue alleged only that “[the] District has ‘a
custom, policy or practice of failing to adequately investigate
the backgrounds of its teachers before hiring them.’” Id.
(quoting Second Am. Compl. ¶ 82).
We agree with the district court that Blue’s assertion is
insufficient to support a claim that the District, in failing to
properly screen Weismiller, acted pursuant to a municipal
policy actionable under section 1983. As the Supreme Court
made clear in Ashcroft v. Iqbal, when reviewing the
sufficiency of a complaint, a court must first “tak[e] note of
the elements a plaintiff must plead to state [the] claim” to
relief, 556 U.S. 662, 675 (2009), and then determine whether
the plaintiff has pleaded those elements with adequate factual
support to “state a claim to relief that is plausible on its face,”
id. at 678 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007)) (internal quotation marks omitted). Blue has
failed to satisfy Iqbal’s first step.
Section 1983 plaintiffs have several ways to allege a
municipal policy, each with its own elements. If the plaintiff
fails to identify the type of municipal policy at issue, the court
9
would be unable to determine, as required by Iqbal’s second
step, whether the plaintiff had provided plausible support for
her claim. Although the court could try to surmise which
theory of municipal liability has the strongest support in the
complaint, this is not our role. It therefore follows that to state
a valid claim against a municipality under section 1983, a
plaintiff must plead the elements of the relevant type of
municipal policy.
Under this standard, Blue’s inadequate screening claim
fails because, as she concedes, she never indicated the
contours of any type of municipal policy. At most, the
complaint suggests that the District made a serious mistake in
hiring Weismiller, just as other school districts have done in
the past. Although, if true, this would be distressing, the
complaint does not allege that the District has a policy of
failing to properly screen employees.
We draw support for our position from the decisions of
the two other circuits that have considered this issue. In
Santiago v. Warminster Township, the plaintiff alleged that
the municipality was liable based on a single decision by the
chief of police. 629 F.3d 121, 125 (3d Cir. 2010). The Third
Circuit affirmed the district court’s dismissal of the case,
finding that the complaint failed to adequately plead
municipal liability because it never alleged that the police
chief had final policymaking authority. Id. at 135. The court
explained that the plaintiff had “to plead in some fashion that
[the police chief] had final policy making authority, as that is
a key element of a Monell claim.” Id. at 135 n.11. The
Seventh Circuit has similarly held that a plaintiff must plead
that a final municipal policymaker made the decision that
caused the violation. Baxter by Baxter v. Vigo County School
Corp., 26 F.3d 728, 735 (7th Cir. 1994) (“[I]t must first be
alleged adequately that a defendant is a final policymaker.
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Only then can a court proceed to the question of whether the
single act or decision of that defendant constituted municipal
policy.”). In other words, in order for the district court to
assess whether Blue stated a facially plausible complaint,
Blue needed to assert the elements of the type of municipal
policy that caused her injury. Blue failed to do so.
Title IX
Blue next argues that the District denied her the benefits
of an education on the basis of sex in violation of Title IX of
the Education Amendments of 1972, 20 U.S.C. §§ 1681 et
seq., when it failed to end Weismiller’s sexual relationship
with her. 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.” Id. § 1681(a). In
Gebser v. Lago Vista Independent School District, the
Supreme Court held that a student can recover damages under
Title IX for sexual harassment by a teacher when three
elements exist: (1) an appropriate official at the school, i.e.,
one with authority to institute corrective measures, (2) had
actual notice of the harassment and (3) demonstrated
deliberate indifference to the harassment. 524 U.S. 274, 290
(1998). The district court determined that Blue had failed to
demonstrate any of the three. Blue, 850 F. Supp. 2d at 31–36.
Although Blue insists that she has established all three
elements, we need address only the second, actual notice.
In Davis ex rel. LaShonda D. v. Monroe County Board of
Education, the Supreme Court interpreted the actual notice
requirement to mean that school officials must have been
aware of “known acts of sexual harassment by a teacher.” 526
U.S. 629, 641 (1999). The Court further held that such acts
must have come to the school officials’ attention while the
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harassment was ongoing. See id. at 642–43 (explaining that to
be liable, the school officials’ deliberate indifference must
have caused the discrimination).
Blue has failed to satisfy the Davis standard. Nowhere in
her complaint did she allege that anyone—much less an
appropriate official—knew of any acts of sexual harassment
while the harassment was ongoing. She did allege that school
officials had actual notice “as shown by the pregnancy test
she took at the school’s request in December 2008 and
through interviews of teachers and staff who had seen
Weismiller and [Blue] alone together in his classroom.”
Second Am. Compl. ¶ 94. Neither suffices. Because Blue
never alleged that she revealed to school officials at the time
of the pregnancy test that Weismiller was the potential father,
school officials could not have known that Weismiller was
sexually harassing her. As for the teachers and staff seeing
Weismiller and Blue alone together, even assuming, as Blue
alleges, that Weismiller was sexually harassing her in the
classroom, Davis requires that the sexual harassment be
“known,” and Blue has failed to allege that anyone knew
sexual harassment was occurring in Weismiller’s classroom.
Blue has therefore failed to state a claim to relief under Title
IX.
D.C. Tort Claims
This brings us, finally, to Blue’s tort claims against the
District. The district court dismissed these claims, finding that
Blue had failed to comply with D.C. Code § 12-309, Blue,
850 F. Supp. 2d at 36–38, which requires that a person
bringing a claim against the District must “within six months
after the injury . . . give[] notice in writing to the Mayor of the
District of Columbia of the approximate time, place, cause,
and circumstances of the injury or damage.” Section 12-309
further provides that “[a] report in writing by the Metropolitan
12
Police Department, in regular course of duty, is a sufficient
notice.” The D.C. Court of Appeals has “repeatedly . . . held
that ‘compliance with the statutory notice requirement is
mandatory,’ and that § 12-309 ‘is to be construed narrowly
against claimants.’” Owens v. District of Columbia, 993 A.2d
1085, 1088 (D.C. 2010) (quoting, respectively, Pitts v.
District of Columbia, 391 A.2d 803, 807 (D.C. 1978), and
Brown v. District of Columbia, 853 A.2d 733, 736 (D.C.
2004)). The D.C. Court of Appeals has also held that the
“statutory exception to formal notice [within section 12-309]
. . . is limited to police reports.” Campbell v. District of
Columbia, 568 A.2d 1076, 1078 (D.C. 1990).
Conceding that she failed to provide notice to the mayor
within six months of her injury, Blue nonetheless argues that
section 12-309’s notice requirement has been satisfied
because DCPS investigated her allegations, meaning that the
District had actual notice of her injury. This theory, however,
runs counter to longstanding D.C. Court of Appeals
precedent, which makes clear not only that the notice
requirement is “mandatory,” but also that it must be
“construed narrowly against claimants.” Owens, 993 A.2d at
1088. Emphasizing the strictness of this requirement, the D.C.
Court of Appeals has even found that a plaintiff failed to
satisfy section 12-309 when she gave oral notice to the city.
Pitts, 391 A.2d at 806 (explaining that oral notice of the
injury was “contrary to both the statute and the case law of
this jurisdiction”). Under D.C. law, then, it is not enough that
the District has knowledge; that knowledge must come in
writing from the claimant.
Alternatively, seeking to take advantage of section 12-
309’s police report exception, Blue argues that she is entitled
to discover whether a police report about the incident exists or
whether the police assisted in drafting DCPS’s May 2009
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investigative report. But because Blue failed to advance this
argument in the district court, she has forfeited it here. Flynn
v. Commissioner of Internal Revenue Service, 269 F.3d 1064,
1068–69 (D.C. Cir. 2001) (“[A]n argument not made in the
lower tribunal is deemed forfeited and will not be entertained
absent ‘exceptional circumstances.’”).
III.
For the foregoing reasons, we affirm.
So ordered.