Davage v. District of Columbia Housing Authority ( 2022 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
GERALD D. DA’VAGE,
Plaintiff,
v.
Civil Action No. 21-1318 (RDM)
DISTRICT OF COLUMBIA HOUSING
AUTHORITY, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiff Gerald Da’Vage, proceeding pro se, brings this wrongful termination action
against the District of Columbia Housing Authority (“DCHA”), several DCHA officials, and the
president of the union that represents DCHA employees, Miranda Gillis. Dkt. 1. 1 Da’Vage
alleges that he was a for-cause employee of DCHA but that (1) he was denied due process when
he resigned under duress in the midst of a “gravely unfair investigation” into his conduct, id. at 6
(Compl. ¶ 3), and (2) Gillis did not adequately represent his interests during that investigation,
id. at 17–18 (Compl. ¶¶ 55–57). He brings this suit under 42 U.S.C. § 1983 to collect back pay
and other damages. Id. at 32 (Compl. ¶ 108).
1
Although the complaint spells Gillis’s first name “Mirandi,” see, e.g., Dkt. 1 at 5, Gillis has
clarified that the correct spelling is “Miranda,” Dkt. 15-1 at 8 n.1, which Da’Vage has since
adopted, see Dkt. 21 at 1.
DCHA and the two of the three named DCHA defendants move to dismiss, Dkt. 12, as
does Gillis, Dkt. 15. 2 For the reasons that follow, the Court will DENY the DCHA defendants’
motion to dismiss and GRANT Gillis’s motion to dismiss.
I. BACKGROUND
Both the DCHA defendants and Gillis move to dismiss Da’Vage’s complaint for failure
to state a claim. See Dkt. 12; Dkt. 15. 3 For purposes of evaluating those motions, the following
allegations, which are taken from Da’Vage’s complaint, are accepted as true. See Am. Nat’l Ins.
Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011). The Court will also consider the
“affidavits,” including one from Gillis and one from a named DCHA defendant, Ronnie Thaxton,
see Dkt. 1-1, 4 that Da’Vage attached to his complaint, see EEOC v. St. Francis Xavier Parochial
2
At the time these motions were filed, the third named DCHA defendant, Ronald McCoy, had
not yet appeared in this matter. In their motion to dismiss—filed on August 6, 2021—the other
DCHA defendants asserted that McCoy had not been served. Dkt. 12 at 1 n.1. The Court,
accordingly, issued an order directing Da’Vage to serve McCoy and to file proof of service on or
before September 3, 2021. See Dkt. 13. Da’Vage filed proof of service on September 3, 2021,
indicating that McCoy had been personally served on June 30, 2021, see Dkt. 19, before the
DCHA defendants had filed their motion to dismiss. In light of the parties’ conflicting
representations, the Court ordered counsel for DCHA to file a status report indicating whether he
represents McCoy in this matter. See Min. Order (Jan. 19, 2022). That status report indicated
that, as of January 27, 2022, counsel for DCHA also represents McCoy. See Dkt. 27. But
because McCoy was not represented at the time the DCHA defendants’ pending motion to
dismiss was filed, the Court will not consider the arguments made therein as to McCoy. Instead,
the Court will consider those arguments as to the DCHA defendants who had counsel at the time
of filing, whom the Court will refer to as the “DCHA defendants.”
3
As detailed below, Gillis also raises an exhaustion argument which she styles as a jurisdictional
basis for dismissal, pursuant to Rule 12(b)(1). See Dkt. 15-1 at 13–21. But because the Court
concludes that this issue does not, in fact, implicate its jurisdiction to hear this case, the Court
will treat that argument as another contention that Da’Vage has failed to state a claim.
4
Although captioned “affidavit,” the Gillis statement is not made under the penalty of perjury
and is neither a sworn “affidavit” nor an unsworn “declaration” made pursuant to 28 U.S.C.
§ 1746. The Thaxton “affidavit,” in contrast, is made under the penalty of perjury and is thus
consistent with 28 U.S.C. § 1746.
2
Sch., 117 F.3d 621, 624 (D.C. Cir. 1997) (“In determining whether a complaint fails to state a
claim, [the Court] may consider only the facts alleged in the complaint, any documents either
attached to or incorporated in the complaint and matters of which [it] may take judicial notice.”).
A. Factual Background
Da’Vage worked as a construction and housing inspector for DCHA for roughly ten
years. See Dkt. 1 at 12, 31 (Compl. ¶¶ 29, 103). Although the complaint is not entirely clear on
this point, it appears that the events underlying the current dispute began when DCHA opened an
investigation in late 2017 into allegations of “unauthorized gas card usage” by Da’Vage during
his time with DCHA. Id. at 7 (Compl. ¶ 8). According to Gillis’s “affidavit,” this investigation
began in November 2017 because the gas card in question “was shown to have expenditures far
exceeding the expenditures on other cards that had been issued to other employees and [because]
some of the purchases had been made after work hours.” Dkt. 1-1 at 1 (Gillis Aff. ¶ 1).
Da’Vage learned of this investigation on Thursday, December 14, 2017, when his immediate
manager “questioned [him] about unauthorized gas card usage.” Dkt. 1 at 7 (Compl. ¶ 8); see
also id. at 33 (Da’Vage Aff. ¶ 1).
Five days later, on Tuesday, December 19, 2017, Da’Vage met with DCHA’s human
resources department regarding the accusations against him. Id. at 8–9 (Compl. ¶¶ 10–12). A
union representative—DCHA’s “union shop steward”—accompanied Da’Vage to this meeting.
Id. at 33 (Da’Vage Aff. ¶¶ 4-5). Da’Vage wanted to introduce “receipts . . . to show similar
purchase activity . . . [by] similarly situated individuals,” id. at 33 (Da’Vage Aff. ¶ 2), but the
union representative declined to do so, because the investigation focused on Da’Vage’s conduct,
rather than other employees’ conduct, id. at 8 (Compl. ¶¶ 12–13). Neither the union
representative nor the DCHA employee who conducted the meeting advised Da’Vage “of his
3
right to retain private counsel,” according to the complaint. Id. at 8–9 (Compl. ¶¶ 14–15).
Later that same day, Gillis—the president of Da’Vage’s union—called Da’Vage to
inform him that DCHA intended to “serve termination papers” on him. Id. at 10 (Compl. ¶ 19).
Prior to this call, she had spoken with DCHA’s labor and employee relations manager, Ronnie
Thaxton. Dkt. 1-1 at 1 (Gillis Aff. ¶ 3). Thaxton told her that “the investigation had concluded”
and that DCHA “would be issuing . . . a notice of termination” that Friday, December 22, 2017.
Id. This decision was based, Thaxton explained, on “the findings of the investigation . . .
coupled with the fact” that Da’Vage had been suspended for “[d]ishonesty” for three days on
November 3, 2017, “for driving [a] government vehicle in Maryland and having an unauthorized
passenger in the vehicle.” Id.
When relaying this information to Da’Vage, Gillis explained that if he did not
immediately resign, he would be subject to a 30-day, unpaid administrative suspension “pending
a criminal investigation.” Dkt. 1 at 10 (Compl. ¶ 19). The criminal investigation, Gillis
continued, might result in a criminal prosecution and a term of imprisonment, which would
impact his pension and retirement benefits, his health and life insurance benefits, his ability to
collect unemployment payments, and his further job prospects. Id. But if Da’Vage resigned
immediately, Gillis told him, he would receive “30-days paid administrative leave and a clear
HR file,” which would enable Da’Vage to “get another government job.” Id. According to
Gillis’s “affidavit,” however, “[a]t no time did [she] tell Mr. [Da’Vage] that Mr. Thaxton
informed me that the agency was pursuing criminal charges,” and “[a]t no time did [she] tell Mr.
Da’Vage that he would be placed on unpaid administrative leave.” Dkt. 1-1 at 2 (Gillis Aff. ¶ 4).
Instead, Gillis states that she informed Da’Vage only that “any unauthorized use of the card is
theft and that depending on the amount the agency had the right to pursue criminal charges.” Id.
4
Thaxton’s affidavit similarly asserts that he “did not inform Mr. Da’Vage’s union
representative[] that Mr. Da’Vage would be terminated . . . if he did not resign immediately, []or
that DCHA was considering criminal prosecution of Mr. Da’Vage.” Id. at 4 (Thaxton Aff. ¶ 9).
Regardless of the precise contents of this conversation, according to the complaint,
Da’Vage spent the next day and a half “attempt[ing] to [obtain] information from HR and
Payroll Office about the financial consequences of [his] rapidly approaching decision.” Dkt. 1 at
10–11 (Compl. ¶¶ 21). When Da’Vage attempted to stop by the office on the afternoon of
December 19, however, he discovered the office had closed for the day, and when he returned
the next morning, the office was again closed, this time “for its ‘Christmas Party.’” Id. at 10–11
(Compl. ¶¶ 21–22).
Gillis called him again on Thursday, December 21, 2017. Gillis warned him that, “[i]f
you do not go to the office today and turn in your resignation letter, HR will start to charge you
your earned leave and may even withdraw [the] resignation offer and initiate a criminal
investigation.” Id. at 11 (Compl. ¶ 23). She briefly got off the phone to consult with Thaxton
“to see what other options were available,” only to report that, according to Thaxton, DCHA’s
Office of General Counsel indicated that the agency “was firm in its decision” and that Da’Vage
would receive his termination letter the very next day. Id. (Compl. ¶ 24). According Gillis, she
also told him “that if he was not guilty[,] do not resign” because “the union will do whatever it
needs to do,” and she explained that if he would like to resign, “he had to do it prior to the
issuance of the notice [of termination] if he did not want the discipline in his folder” and if he
wanted to receive 30 days of medical benefits. Dkt. 1-1 at 2 (Gillis Aff. ¶ 6).
Da’Vage indicated that he wished to resign. Dkt. 1 at 12 (Compl. ¶ 26). Gillis did not,
however, inform Da’Vage that “resignation . . . would preclude administrative appeal.” Id. at
5
11–12 (Compl. ¶ 25). Da’Vage told Gillis that “he did not know how to write a resignation
letter,” and so Gillis arranged for a union representative to draft Da’Vage’s resignation letter,
which Da’Vage signed and delivered to the human resources department. Id. at 11–12 (Compl.
¶¶ 26–28). Neither the union representative nor the human resources department, however,
informed Da’Vage that resignation “would preclude the filing of an administrative appeal.” Id.
(Compl. ¶¶ 27–28). According to Gillis, Da’Vage continued to receive pay until his resignation
became effective on January 19, 2018. Dkt. 1-1 at 2 (Gillis Aff. ¶ 7).
B. Procedural History
Da’Vage, proceeding pro se, filed this action on May 5, 2021. Brought under 42 U.S.C.
§ 1983, the suit seeks “full back pay and full benefits back pay with interest,” along with
compensatory and punitive damages. Id. at 7, 32 (Compl. ¶¶ 6, 108).
The crux of Da’Vage’s complaint against DCHA and the other named DCHA defendants
is that he was entitled to further process during the investigation of his alleged misconduct, but
that no DCHA official ever apprised him of these rights. Da’Vage alleges, for example, that
Paulette Campbell, DCHA’s director of human resources, “knew or reasonabl[y] should have
known that Plaintiff did not receive minimal Due Process protections” and that Ronald McCoy, a
direct supervisor who oversaw his immediate manager, either knew or “should have known” that
Da’Vage never received “advanced written notice”—presumably, of the charges against him,
although the complaint does not specify—or an “opportunity to be heard after receiving
advanced written notice or pretermination hearing results.” Id. at 13–14 (Compl. ¶¶ 32–34, 38).
Da’Vage further alleges that Ronnie Thaxton, DCHA’s labor and employee relations manager,
(1) “did not advise Plaintiff of his right to retain private counsel” during the investigation; (2)
misrepresented the evidence that the agency had against Da’Vage; (3) failed to inform Da’Vage
6
that resigning “would preclude administrative appeal rights,”; and (4) failed to provide Da’Vage
with documents relevant to the investigation. Id. at 15–16 (Compl. ¶¶ 42–46).
As for Gillis, Da’Vage alleges that she “knew or reasonably should have known” that he
did not receive “advance written notice” or “time to meaningfully review and respond” to
DCHA’s allegations against him. Id. at 18 (Compl. ¶ 55). Gillis pressured Da’Vage to make a
decision regarding his resignation, according to Da’Vage, even though she “knew [he] was at an
informational disadvantage,” and she “allowed [him] to resign without advising [him] that
resignation would preclude administrative appeal rights.” Id. (Compl. ¶ 57). Gillis’s conduct
amounted to a violation of procedural due process, Da’Vage alleges, because he was left without
the “informational weaponry” to make an “informed and free decision” regarding his resignation.
Id. at 20 (Compl. ¶ 64).
DCHA and the named DCHA defendants jointly filed a motion to dismiss on August 6,
2021, Dkt. 12, and Gillis followed suit with a separate motion to dismiss on August 23, 2021,
Dkt. 15. The Court ordered Da’Vage to respond to each motion, warning him of the
consequences of failing to do so. See Fox-Neal Order (Aug. 16, 2021) (addressing motion to
dismiss from the DCHA defendants); Fox-Neal Order (Aug. 24, 2021) (same for Gillis’s motion
to dismiss). Da’Vage has opposed both motions, see Dkt. 17; Dkt. 20, and both sets of
defendants have filed reply briefs in further support of their motions, see Dkt. 18; Dkt. 22. 5
II. LEGAL STANDARD
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests the legal
sufficiency of a complaint.” Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). In
5
While those motions were pending, Da’Vage moved for summary judgment. Dkt. 23. DCHA
has moved to strike that motion as premature, Dkt. 25, and Da’Vage’s reply brief was due
January 14, 2022, see Min. Order (Dec. 29, 2021). That date has come and gone, and to date the
7
evaluating a Rule 12(b)(6) motion, the Court “must first ‘tak[e] note of the elements a plaintiff
must plead to state [the] claim’ to relief, 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.’” Blue v. District of Columbia, 811 F.3d 14, 20 (D.C. Cir. 2015) (quoting Ashcroft v. Iqbal,
556 U.S. 662, 675, 678 (2009)) (alterations in original) (citation omitted). The complaint,
however, need not include “detailed factual allegations” to withstand a Rule 12(b)(6) motion.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A plaintiff may survive a Rule
12(b)(6) motion even if “recovery is very remote and unlikely,” so long as the facts alleged in the
complaint are “enough to raise a right to relief above the speculative level.” Id. at 555–56. In
assessing a Rule 12(b)(6) motion, a court may consider only “the facts contained within the four
corners of the complaint,” Nat’l Postal Pro. Nurses v. U.S. Postal Serv., 461 F. Supp. 2d 24, 28
(D.D.C. 2006), along with “any documents attached to or incorporated into the complaint,
matters of which the court may take judicial notice, and matters of public record,” United States
ex rel. Head v. Kane Co., 798 F. Supp. 2d 186, 193 (D.D.C. 2011).
III. ANALYSIS
Two motions to dismiss are before the Court—the first filed jointly by DCHA and the
other named DCHA defendants, Dkt. 12, and the second filed separately by Gillis, Dkt. 15. The
Court will address each in turn.
A. DCHA’s Motion to Dismiss
The DCHA defendants move to dismiss Da’Vage’s complaint for failure to state a claim.
Court has not received a reply brief. The Court, accordingly, concludes that Da’Vage’s motion
is ripe for resolution and will deny his motion for summary judgment as premature. Discovery
has not yet begun, as this case remains at the pleading stage, and as such the Court is not yet in a
position to evaluate the state of the record and any genuine disputes of material fact.
8
See Dkt. 12 at 11. Da’Vage’s complaint, as noted above, alleges only one claim, a deprivation of
his constitutional right to procedural due process in violation of 42 U.S.C. § 1983. Dkt. 1 at 19
(Compl. ¶ 58); see id. at 4 (identifying § 1983 as basis for suit). To prevail on such a claim,
Da’Vage must plausibly allege both that he was deprived of “life, liberty, or property,” and that
“the procedures used by the Government in effecting the deprivation [did not] ‘comport with due
process.’” Ralls Corp. v. Comm. on Foreign Inv. in U.S., 758 F.3d 296, 315 (D.C. Cir. 2014)
(quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999)). The DCHA defendants
concede that Da’Vage “had a constitutionally protected property right” in his continued
employment, Dkt. 12 at 5, but they offer two reasons why Da’Vage’s procedural due process
claim nevertheless fails. As detailed below, neither warrants dismissal of Da’Vage’s complaint
at this stage.
1. Voluntary Resignation
First, the DCHA defendants argue that when someone, like Da’Vage, “resigns from a
position in which he has a constitutionally protected property interest,” he “cannot argue that he
has been deprived of due process because[,] by resigning[,] he has chosen not to avail himself of
the due process rights and procedures to which he was entitled.” Id. (citing Stone v. Univ. of
Md., 855 F.2d 172, 173 n.7 (4th Cir. 1988)). The Court agrees that “if an employee voluntarily
relinquishes a property interest, then no procedural due process violation has occurred.”
Narotzky v. Natrona Cty. Mem’l Hosp. Bd. of Trustees, 610 F.3d 558, 564 (10th Cir. 2010). This
is because, when an employee “resign[s] of his own free will[,] . . . he relinquishe[s] his property
interest voluntarily and thus cannot establish that the state ‘deprived’ him of it within the
meaning of the due process clause.” Stone, 855 F.2d at 173.
9
That rule, however, comes with an important caveat: it applies only when the employee
resigns of his own free will. In contrast, when an employee’s resignation is made under duress
or is otherwise involuntary, his resignation is “effectively a termination.” Jefferson v. Harris,
170 F. Supp. 3d 194, 208 (D.D.C. 2016) (quoting Keyes v. District of Columbia, 372 F.3d 434,
438 (D.C. Cir. 2004)). Although an employee’s resignation is “presumed to be voluntary,” Hill
v. Gray, 28 F. Supp. 3d 47, 61 (D.D.C. 2014), this presumption does not apply if “a reasonable
person in [the plaintiff’s] position would have felt compelled to resign under the circumstances,”
Aliotta v. Bair, 614 F.3d 556, 566 (D.C. Cir. 2010). A resignation may be involuntary for
purposes of this analysis, for example, (1) “where [it was] forced by the employer’s duress or
coercion;” or (2) “where [it was] obtained by the employer’s misrepresentation or deception.”
Stone, 855 F.2d at 173 (collecting cases); see also Hill v. Borough of Kutztown, 455 F.3d 225,
233 n.10 (3d Cir. 2006); Jefferson, 170 F. Supp. 3d at 208. The question posed at the motion to
dismiss stage is simply whether the complaint alleges a claim that is “plausible on its face”—that
is, a claim that the plaintiff (1) relinquished his position under duress or based on his employer’s
misrepresentations, and (2) was deprived of his job without the benefit of due process. See
Iqbal, 556 U.S. at 675, 678.
Although Da’Vage argues that both of these circumstances are present here, his
allegations that DCHA obtained his resignation by “misrepresentation by deception,” Stone, 855
F.2d at 173, are sufficient to resolve the matter at this early stage of the proceeding. To succeed
on this theory, Da’Vage must plausibly allege that his resignation was “induced by [his]
reasonable reliance on [DCHA’s] misrepresentation of a material fact concerning the
10
resignation.” Keyes, 372 F.3d at 440. A misrepresentation is “material” if it “concern[s] the
consequences of [Da’Vage’s] resignation or the alternatives thereto.” Id.According to Da’Vage, Ronnie Thaxton “withheld and/or misrepresented material
information” when he told Gillis (who was acting as Da’Vage’s agent and subsequently
informed Da’Vage) that DCHA had made a “firm” decision to terminate Da’Vage on December
22, 2017, and that his “only other option was to resign” before then. Dkt. at 1 at 16 (Compl.
¶ 47). On Thursday, December 21, 2017, Gillis allegedly relayed to Da’Vage Thaxton’s
message that, if he did not resign before his impending termination, DCHA “would charge him
earned leave, withdraw [its] resignation offer[,] and initiate [a] criminal investigation.” Id. at 25
(Compl. ¶ 82). Through these statements, Da’Vage alleges, Thaxton “deceptively
misrepresented material information to Plaintiff”—namely, by “informing Plaintiff that [DCHA]
was firm in its decision to issue the termination by Friday, and that . . . Thaxton was only waiting
on the Director’s signature,” which Thaxton expected to receive the next morning (that is,
Friday, December 22, 2017). Id. at 29–30 (Compl. ¶ 95) (alterations and quotation marks
omitted). According to Plaintiff, he learned that Thaxton’s representations were false only when,
in the course of a failed administrative appeal in March 2018, DCHA asserted that, “[a]t the time
of [Plaintiff’s] resignation, DCHA had not finalized its investigation or approved discipline.” Id.
at 29 (Compl. ¶ 95). Da’Vage further alleges that he “relied” on Thaxton’s “deceptive”
statements that “everyone agreed that [he] should be terminated” and ultimately came to believe
“that there was no way to successfully stand pat and fight.” Id. at 30 (Compl. ¶ 96). Relying on
this “misrepresentation of material information,” Da’Vage “immediately resigned.” Id. (Compl.
¶ 100). If, according to Da’Vage, DCHA had not “deceive[d]” him about the “status of [his]
investigation,” he would not have resigned on December 21, 2017, but instead would have
11
“return[ed] to HR and Payroll Office to have his many unanswered questions answered.” Id.
These allegations are sufficient to render Da’Vage’s claim that DCHA induced his
resignation through misrepresentation or deception at least “plausible on its face,” Blue, 811 F.3d
at 20. As an initial matter, there can be little dispute that the statements at issue “concern[ed] the
consequences of [Da’Vage’s] resignation or the alternatives thereto,” Keyes, 372 F.3d at 440,
and were, as a result, material to his resignation. Thaxton’s alleged message to Gillis, after all,
was that if Da’Vage did not resign immediately, DCHA “would charge him earned leave,
withdraw [its] resignation offer[,] and initiate [a] criminal investigation.” Dkt. 1 at 25 (Compl.
¶ 82). The Court, accordingly, cannot agree with the DCHA defendants’ position that these
statements “did not concern the consequences of [Da’Vage’s] resignation or the alternative to
[Da’Vage’s] resignation.” Dkt. 12 at 10. Although the DCHA defendants maintain that these
statements concerned only Da’Vage’s termination, rather than his resignation, see id., that is a
false dichotomy. Da’Vage alleges DCHA gave him a stark, and immediate, choice—resign or be
fired the very next day—and that this choice implicated, among other things, his access to earned
leave and a potential criminal investigation. Dkt. 1 at 25 (Compl. ¶ 82). That choice, even under
the DCHA defendants’ framing, plainly went to the “consequences of . . . [Da’Vage’s]
alternatives” to resignation. Keyes, 372 F.3d at 440.
Although the DCHA defendants do not address this point, it is perhaps a closer question
whether those statements were, as alleged, misleading or deceptive. Da’Vage’s argument that he
resigned under duress—the other basis on which he maintains his resignation was involuntary—
depends on a “Hobson’s choice” between resignation or termination. Id. at 31 (Compl. ¶ 103).
But it is entirely plausible that Da’Vage perceived such a “Hobson’s choice” where none existed
if, as Da’Vage alleges, Thaxton misled Gillis (and, in turn, Da’Vage) as to the imminence of his
12
termination. Another wrinkle is that Thaxton, in the affidavit Da’Vage attached to his complaint,
asserts that he “did not inform Mr. Da’Vage’s union representative that Mr. Da’Vage would be
terminated on December 21, 2017, if he did not resign immediately, []or that DCHA was
considering criminal prosecution of Mr. Da’Vage.” Dkt. 1-1 at 4 (Thaxton Aff. ¶ 9). As an
initial matter, there is no reason to believe that Da’Vage intended to concede the truthfulness of
Thaxton’s statements by attaching his affidavit to the complaint. To the contrary, Da’Vage
clearly alleges that he “relied on Ronnie Thaxton[’s] deceptive information,” including
Thaxton’s statement that “everyone agreed that [Da’Vage] should be terminated” and statement
that DCHA was “only waiting on the Director’s signature,” which he expected to receive the
next “morning.” Id. at 29–30 (Compl. ¶¶ 95–96). In light of these allegations, the Court
understands Da’Vage’s position to be that Thaxton’s denials in his affidavit—to the extent they
must be reconciled with the contents of Da’Vage’s complaint—only underscore the falsity of the
statements Thaxton allegedly made to Gillis on December 21, 2017. The complaint is,
admittedly, less than clear on this point, but at this stage the Court must draw all reasonable
inferences in favor of Da’Vage, as the non-movant, see Cavalier v. Cath. Univ. of Am., 306 F.
Supp. 3d 9, 27 (D.D.C. 2018), and must also take into consideration the liberal pleading standard
afforded litigants, like Da’Vage, who are not represented by counsel, see Erickson v. Pardus,
551 U.S. 89, 94 (2007).
With these principles in mind, the Court concludes that Da’Vage has adequately pleaded
that DCHA induced his resignation through misrepresentation or deception, rendering his
resignation involuntary. The DCHA defendants are, accordingly, not entitled to dismissal on the
ground that Da’Vage voluntarily surrendered his property interest in his continued employment.
They may, of course, return to these issues at the summary judgment stage.
13
2. Sufficiency of Process
The DCHA defendants also argue that, even if Da’Vage was deprived of a property
interest, he received all of the process to which he was constitutionally entitled. Due process did
not require, according to the DCHA defendants, that “the DCHA give Mr. Da’Vage the full
panoply of process due in a contested administrative hearing or judicial proceeding” at the pre-
termination stage, and thus, prior to his resignation, Da’Vage did not have the “right to proceed
before a neutral adjudicator, [to] be represented by counsel, [to] receive written notice of the
issues to be adjudicated, [to] view evidence, [to] present and cross-examine witnesses and
thereafter [to] appeal a final decision.” Dkt. 12 at 10–11; see also Dkt. 18 at 2–3. Instead, they
argue, “at the pre-termination stage, all that due process requires is that a tenured public
employee, such as Da’Vage, receive oral or written notice of the charges against him, an
explanation of the employer’s evidence[,] and an opportunity to present a rebuttal.” Dkt. 12 at
11. According to the DCHA defendants, that is the process Da’Vage received, and thus, in their
view, he “received the pre-termination process [to which] he was due.” Id.Where, as here, an employee has a protected property interest in his employment by a
government actor, termination must “be preceded by notice and opportunity for hearing
appropriate to the nature of the case.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542
(1985) (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950)); see
also Wash. Teachers’ Union Local #6 v. Bd. of Educ., 109 F.3d 774, 780 (D.C. Cir. 1997). The
pretermination hearing, however, “need not be elaborate” and, “[i]n general, ‘something less’
than a full evidentiary hearing is sufficient.” Loudermill, 470 U.S. at 546 (quoting Matthews v.
Eldridge, 424 U.S. 319, 343 (1976)). Because “nothing in due process law require[s] . . . an
evidentiary hearing before a neutral arbiter prior to termination,” the DCHA was required to
14
provide only “an opportunity to present reasons why the proposed action should not be taken.”
Washington Teachers’ Union, 109 F.3d at 779 (quotation marks omitted).
Applying these principles here, the Court agrees that the DCHA was not required to
provide Da’Vage with the full panoply of process prior to his termination. The difficulty for the
DCHA defendants, however, is that Da’Vage alleges that he was rushed into resigning by the
threat of imminent termination before he received even that minimal process required pre-
termination. At the time of his resignation, Da’Vage alleges that he had “insufficient knowledge
of the facts” underlying the accusations against him. Dkt. 1 at 22 (Compl. ¶ 71). The
information that Da’Vage allegedly sought (but never received) included “date of purchases,
locations, times, etc.” for his unauthorized gas card purchases. Id. at 20 (Compl. ¶ 64). Without
this information, Da’Vage maintains that he could not “compare[]” the alleged purchases “to
[the] inspection schedule and gas receipts found in [the] glove compartment of [his] assigned
vehicle;” could not show that similarly situated employees “were not terminated” under similar
circumstances; and, thus, could not fully defend himself against the charges of impropriety
levied by DCHA. Id. These allegations are sufficient to make out a claim that Da’Vage was
denied adequate “notice” of the charges against him and was denied a reasonable opportunity to
respond to those charges. Loudermill, 470 U.S. at 546.
Nor is the Court persuaded by the DCHA’s defendants’ contention, Dkt. 12 at 10–11;
Dkt. 18 at 2–3, that Da’Vage received a “hearing appropriate to the nature of the case,”
Loudermill, 470 U.S. at 546. In support of this argument, the DCHA defendants point to the
meeting Da’Vage had with the agency’s human resources department on Tuesday, December 19,
2017. Dkt. 18 at 2. Da’Vage alleges, however, that even with that meeting he had “insufficient
time to investigate, deliberate[,] and reflect on the verbal information offered during the HR
15
investigation” on Tuesday, December 19, 2017. Dkt. 1 at 22 (Compl. ¶ 71). And, although an
employee’s pre-termination hearing “need not be elaborate” and “a full evidentiary hearing” is
not required, Loudermill, 470 U.S. at 546, Da’Vage alleges that he was forced to resign in less
than two-days’ time, without receiving a reasonable opportunity to investigate the charges
against him or to present his case, Dkt. 1 at 20 (Compl. ¶ 64); Dkt. 1 at 33-36 (Da’Vage Aff’d).
Those allegations suffice to survive a motion to dismiss.
The DCHA defendants argue in reply that Da’Vage “resigned and thereby waived his
right to written notice and an adversarial proceeding to contest his termination.” Dkt. 18 at 2–3.
That, however, puts the cart before the horse. It is only where an employee voluntarily resigns
that he forfeits his procedural due process rights. Narotzky, 610 F.3d at 564; Stone, 855 F.2d at
173. But, when a for-cause employee plausibly alleges that his resignation was involuntary, as
Da’Vage does here, he remains entitled to constitutionally sufficient process.
* * *
Because Da’Vage’s factual allegations are presumed true at this early stage of the
proceeding, and because neither of the arguments pressed by the DCHA defendants is
convincing in the face of that permissive standard, the Court will deny their motion to dismiss.
B. Gillis’s Motion to Dismiss
Gillis raises several arguments in support of her separate motion to dismiss, including
that this Court’s lacks jurisdiction over Da’Vage’s claims, Dkt. 15-1 at 13–21, and that the
Da’Vage fails to a state a claim against her under 42 U.S.C. § 1983 because his complaint does
not allege that she was a state actor or that she was acting under color of state law, id. at 23–25.
Gillis’s jurisdictional argument is predicated on the District of Columbia Comprehensive
Merit Personnel Act (“CMPA”), D.C. Code § 1-601.01, et seq. The CMPA “establish[es]
16
impartial and comprehensive administrative or negotiated procedures for resolving employee
grievances” for employees of the District of Columbia, D.C. Code Ann. § 1-601.02 (a)(5), and it
“provides the exclusive remedy for claims falling within its ambit,” Stockard v. Moss, 706 A.2d
561, 567 (D.C. 1997). This means that this Court “is not an alternative forum in this scheme, but
rather serves as a last resort for reviewing decisions generated by CMPA procedures.”
Washington v. DCHA, 170 F. Supp. 3d 234, 239 (D.D.C. 2016) (quoting Robinson v. District of
Columbia, 748 A.2d 409, 411 (D.C. 2000)). Gillis argues that Da’Vage failed to avail himself of
these procedures and that this Court, accordingly, cannot review his claims.
The DCHA defendants, however, attach to their motion to dismiss a decision from the
District of Columbia’s Office of Employee Appeals (“OEA”), concluding that the DCHA is an
“independent authority of the District Government [with] a legal existence separate from District
government.” Dkt. 12-2 at 4 (alteration in original) (quoting D.C. Code § 6-202(a)). The OEA
concluded, accordingly, that the DCHA falls outside the ambit of the CMPA and that the OEA
“lack[ed] jurisdiction” over the dispute between Da’Vage and the DCHA. Id. at 5. Gillis does
not address this decision at all, even though the DCHA defendants argue (albeit only briefly) that
“DCHA [e]mployees are not employees of the District of Columbia Government,” Dkt. 12 at 11,
an argument that would seem to undermine Gillis’s contention that Da’Vage’s failure to exhaust
his remedies under the CMPA precludes this lawsuit. 6
6
Although the OEA decision might be one of those “matters of which [the Court] may take
judicial notice,” St. Francis Xavier Parochial Sch., 117 F.3d at 624, the Court need not invoke
that principle here for two reasons. First, Da’Vage references the OEA decision, and its
conclusion that the DCHA is “not an agency of the District of Columbia government,” in his
complaint. Dkt. 1 at 9 n.2 (Compl. ¶ 16 n.2) (describing finding during “OEA appeal” that
DCHA “was not an agency of the District of Columbia government”). Accepting that allegation
as true, it is unclear what else, if anything, Da’Vage could have done to exhaust his available
administrative remedies. Indeed, the DCHA defendants maintain that Da’Vage appealed the
OEA decision to the D.C. Superior Court. Dkt. 12 at 4. Second, as explained below, the Court
17
As noted above, Gillis characterizes this defect as going to this Court’s subject matter
jurisdiction, Dkt. 15-1 at 13, arguing that the Court must turn first to the CMPA exhaustion
requirement before addressing the other grounds on which she seeks dismissal. To the extent the
requirement is indeed jurisdictional, Gillis is correct; except under highly unusual circumstances,
courts must assess their jurisdiction “as a threshold matter” because, without jurisdiction, courts
are powerless to act. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94–95 (1998). Gillis,
moreover, points to at least some authority from this Court holding that the CMPA poses a
jurisdictional hurdle even in actions brought in federal court. See Owens v. District of Columbia,
923 F. Supp. 2d 241, 252 (D.D.C. 2013) (holding that plaintiff’s failure to pursue her CMPA
remedies meant that “this Court lack[ed] subject matter jurisdiction to review [plaintiff’s] § 1983
claim”). But those decisions at least arguably represent the kind of “drive-by jurisdictional
rulings” that should be treated with caution. Arbaugh v. Y&H Corp., 546 U.S. 500, 511 (2006).
Caution is further warranted because other decisions from this Court have treated the CMPA’s
exhaustion requirement as non-jurisdictional, including in a case, like this one, asserting a
procedural due process claim under 42 U.S.C. § 1983, see Hoey v. District of Columbia, 540 F.
Supp. 2d 218, 226–28 (D.D.C. 2008), and because the D.C. Circuit has yet to decide “whether
federal courts . . . should treat a failure to exhaust remedies under the CMPA as a prudential
concern,” Washington, 170 F. Supp. 3d at 239–40.
Notwithstanding the lack of definitive guidance on the question, the Court is convinced
that the CMPA does not deprive federal district courts of subject-matter jurisdiction to consider
federal due process claims asserted by D.C. government employees. To be sure, it is “well
concludes that the CMPA exhaustion requirement, even if applicable, is non-jurisdictional and
that other grounds warrant dismissal of the claim against Gillis.
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established that the CMPA’s exhaustion requirement imposes a jurisdictional bar to filing suit in
D.C. courts.” Amobi v. Brown, 08-cv-1501, 2021 WL 3722710, at *7 (D.D.C. Aug. 23, 2021).
But the jurisdiction of the federal courts is a wholly different matter. As Judge Ketanji Brown
Jackson explained in a recent decision, “the CMPA is a law that was enacted by a local
legislature, and it is a bedrock principle of federal-court jurisdiction that ‘[w]ithin constitutional
bounds, Congress decides what cases the federal courts have jurisdiction to consider . . . and
under what conditions[] federal courts can hear them.’” Id. at *7 (alterations in original)
(quoting Bowles v. Russell, 552 U.S. 205, 212–13 (2007)). Here, the Court’s subject-matter
jurisdiction is premised on two federal statutes: 28 U.S.C. § 1331, which confers jurisdiction on
federal district courts in civil cases “arising under the Constitution [or ] laws . . . of the United
States,” and 28 U.S.C. § 1343, which confers jurisdiction on federal district courts in civil cases
brought “[t]o redress the deprivation, under color of any State law, statute, ordinance, regulation,
custom or usage, of any right, privilege or immunity secured by the Constitution.” Nothing
contained in the CMPA purports to limit—or could limit—these grants of federal jurisdiction.
This does not mean that the CMPA has no bearing on due process claims asserted in
federal court by D.C. employees; rather, it means only that the statute relates to the merits of the
challenge and does not limit federal jurisdiction. Most notably, the fact that the CMPA provides
an administrative remedy for certain adverse employment actions taken by D.C. government
employers might well, in certain cases, provide all the process that is due under the Fifth
Amendment. See Hoey, 540 F. Supp. 2d at 227. Here, however, the Court need not decide
whether the CMPA gives rise to such a merits defense because, vested with jurisdiction, the
Court may turn to other potentially dispositive defenses first. Given the (largely unbriefed)
disagreement among the parties about whether Da’Vage was entitled to appeal to the OEA, that
19
course is the more straightforward path in this case. See id. (“Where, as here, a plaintiff neglects
to exhaust fully his available state administrative remedies, dismissal for ‘failure to sufficiently
plead a necessary element of a federal cause of action’ is appropriate.” (quoting Washington v.
District of Columbia, 538 F. Supp. 2d 269, 275 (D.D.C. 2008)).
Of all the arguments that Gillis raises, the most clear-cut is that the complaint fails to
allege that she was a state actor or that she acted under the color of state law, as is required under
42 U.S.C. § 1983 and the due process clause. Dkt. 15-1 at 23–25. “To state a claim under
§ 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the
United States, and must show that the alleged deprivation was committed by a person acting
under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). “The traditional definition of
acting under color of state law requires that the defendant in a § 1983 action have exercised
power ‘possessed by virtue of state law and made possible only because the wrongdoer is clothed
with the authority of state law.’” Id. at 49 (quoting United States v. Classic, 313 U.S. 299, 326
(1941)). Public employees, accordingly, act “under color of state law” when they act in their
“official capacity or while exercising [their] responsibilities pursuant to state law.” Id. at 50.
Similarly, to state a claim under the due process clause of the Fifth Amendment, a plaintiff must
allege that the alleged deprivation was a product of state action, and thus the “absence of state
action is fatal to [the plaintiff’s] constitutional claim.” Doe v. Rogers, 139 F. Supp. 3d 120, 165
(D.D.C. 2015) (quoting Shirvinski v. U.S. Coast Guard, 673 F.3d 308, 317 (4th Cir.2012)).
Here, however, Da’Vage does not allege that Gillis acted as an employee or officer of
DCHA; rather, she allegedly acted as Da’Vage’s union representative. See Dkt. 1 at 16 (Compl.
¶ 49) (“Defendant Miranda Gillis, for the past decade and at all relevant times hereto was the
president of the American Federation of Government Employee’s Local #2725.”); see also Dkt.
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1-1 at 4 (Thaxton Aff. ¶ 4) (“Miranda Gillis, president of Local 2725 of the American Federation
of Government Employees, is not an employee of DCHA and does not represent or have the
authority to make decisions on behalf of DCHA.”). Nor does Da’Vage allege that Gillis violated
a duty that was owed to him by the DCHA; rather, she allegedly violated her duty as a union
representative by, for example, allowing him “to resign without advising [him] that resignation
would preclude administrative appeal rights,” Dkt. 1 at 18 (Compl. ¶ 57). That is a problem for
Da’Vage because “[l]abor unions . . . generally are not state actors.” Ciambriello v. County of
Nassau, 292 F.3d 307, 323 (2d Cir. 2002).
Recognizing the need to allege that Gillis acted under color of state law and otherwise
exercised the power of the state, Da’Vage alleges as follows:
Mirand[a] Gillis[’s] actions and inactions during the alleged misconduct
investigation and Employee’s Personnel Action[,] i.e., resignation[,] was
entwined with the District of Columbia government wide policies, laws, rules
and regulations or so impregnated with governmental characteristics that
Mirand[a] Gillis[’s] actions and inactions were subject to the constitutional
limitations placed upon state action and inaction, thereby Mirand[a] Gillis acted
under color of law during all relevant times conspiring with Agency to violate
Plaintiff’s constitutionally protected Due Process rights.
Dkt. 1 at 17 (Compl. ¶ 52). But this is precisely the kind of “legal conclusion[] cast as factual
allegation[],” Sickle v. Torres Advanced Enter. Sols., LLC, 884 F.3d 338, 345 (D.C. Cir. 2018)
(quotation marks omitted), that this Court may not credit in resolving a motion to dismiss.
Da’Vage offers no factual allegations plausibly supporting the legal conclusion that Gillis
conspired with the DCHA, and he offers no explanation of how her actions were “entwined
with” D.C. governmental policy or were “impregnated with governmental characteristics.” Dkt.
1 at 17 (Compl. ¶ 52). Because Da’Vage offers no supporting allegations to buttress his legal
conclusions, his complaint fails adequately to allege that Gillis acted under color of state law or
exercised state authority, and his § 1983 claim against Gillis fails as a matter of law. See
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McManus v. District of Columbia, 530 F. Supp. 2d 46, 71 (D.D.C. 2007) (holding that because
“Plaintiffs’ Amended Complaint d[id] not allege that the Labor Union Defendants are or were
state actors in the context of Plaintiffs’ terminations . . . the Labor Union Defendants could [not]
be properly named as Defendants” under § 1983).
CONCLUSION
For the foregoing reasons, it is hereby ORDERED that the DCHA defendants’ motion to
dismiss, Dkt. 12, is DENIED; Miranda Gillis’s motion to dismiss, Dkt. 15, is GRANTED; and
Da’Vage’s motion for summary judgment, Dkt. 23, is DENIED as premature. It is further
ORDERED that Da’Vage’s claim against Gillis is hereby DISMISSED.
SO ORDERED.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Dated: January 28, 2022
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