Cohen v. Board of Trustees of the University of the District of Columbia

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
ROBERT COHEN, )
)
Plaintiff, )
v. )
)
BOARD OF TRUSTEES OF THE ) Civil Action No. 14-754 (EGS)
UNIVERSITY OF THE DISTRICT )
OF COLUMBIA, et al., )
)
Defendants. )
)
MEMORANDUM OPINION
I. Introduction
Plaintiff Robert Cohen (“Dr. Cohen”) brings this action
against the Board of Trustees of the University of the District
of Columbia (“UDC”) and certain UDC officials in their
individual capacities—including Professor Vernise Steadman,
Provost Graeme Baxter, and President Allen Sessoms—
(collectively, “defendants”) after he was terminated from his
position as Professor. Dr. Cohen alleges six claims: (1)
violation of his due process rights under 42 U.S.C. § 1983
(“Section 1983”) and Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388 (1971) (“Bivens”); (2)
trespass to chattel; (3) conversion; (4) bailee indebtedness;
(5) negligence; and (6) intentional infliction of emotional
distress. Second Am. Compl., ECF No. 22 ¶¶ 37-70. He requests
compensatory and punitive damages. Id. ¶ 71. Pending before the
1
Court is the defendants’ motion to dismiss. Upon careful
consideration of the defendants’ motion, Dr. Cohen’s response,
the reply thereto, and the applicable law, the defendants’
motion to dismiss is hereby GRANTED IN PART and DENIED IN PART.
Dr. Cohen’s due process claim pursuant to Section 1983 against
the UDC Board of Trustees, President Sessoms, and Provost Baxter
may proceed.
II. Background
A. Factual Background
As this matter is before the Court on defendants’ motion to
dismiss, the Court will assume that the following allegations in
the complaint and attachments thereto are true. Dr. Cohen had
been a tenured professor at UDC since 1976. Second Am. Compl.,
ECF No. 22 ¶ 3. In August 2010, he was terminated for failing to
submit teaching evaluations for academic years 2006-2007, 2007-
2008, and 2008-2009. Id. ¶¶ 14-17. For about a year prior to his
termination, Dr. Cohen and defendants had been in a dispute over
these evaluations, resulting in warnings, suspension without
pay, a final opportunity to submit the evaluations, and
ultimately, termination. Letter from Provost Graeme Baxter
(“Baxter Letter”), ECF No. 22-2.
On June 18, 2010, then-Provost Graeme Baxter sent Dr. Cohen
a final notice of the missing evaluations, requesting a
completed evaluation portfolio within twenty-one days and
2
warning that failure to submit the portfolio would subject Dr.
Cohen “to additional disciplinary action which could include
termination.” Id. However, Dr. Cohen was not aware of the letter
and did not timely receive it. Second Am. Compl., ECF No. 22 ¶¶
30-32; Letter Appealing Termination to President Sessoms
(“Appeal Letter”), ECF No. 22-4. On August 5, 2010, having
received no response, Provost Baxter sent Dr. Cohen a letter
terminating him for cause pursuant to the collective bargaining
agreement between UDC and its faculty, known as the “Sixth
Master Agreement.” Second Am. Compl., ECF No. 22 ¶ 17;
Termination Statement of Cause Letter (“Termination Letter”),
ECF No. 22-3. The letter provided Dr. Cohen with appeal
instructions, also pursuant to the Sixth Master Agreement. Id.
Dr. Cohen became aware of his termination about two weeks later.
Second Am. Compl., ECF No. 22 ¶ 18. He discovered that his
office “had been seized and all his possessions and university
documents had been taken.” Id. ¶ 20. Additionally, Dr. Cohen’s
UDC email address was closed and he “lost all his academic and
administrative documents stored on UDC’s system.” Id. ¶ 21.
On September 1, 2010, Dr. Cohen appealed UDC’s termination
decision to then-UDC President Allen Sessoms, arguing in part
that the Chairperson of his Department, Professor Vernise
Steadman, did not submit one of his completed evaluations. Id. ¶
23; Appeal Letter, ECF No. 22-4. UDC President Sessoms denied
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Dr. Cohen’s appeal on September 8, 2010, finding it “not
credible” that Dr. Cohen did not receive UDC’s multiple
communications. Denial Letter from President Sessoms (“Denial
Letter”), ECF No. 22-5.
Following the procedures set forth in the Sixth Master
Agreement, Dr. Cohen then appealed President Sessoms’ decision
to his union——the UDC Faculty Association (“the Association”)——
for arbitration. Pl.’s Opp’n, ECF No. 25 at 8. However, the
Association “refused to represent him.” Id. Rather than
appealing the Association’s refusal to arbitrate as an unfair
labor practice to the Public Employee Relations Board (“PERB”)
pursuant to the Comprehensive Merit Personnel Act (“CMPA”), D.C.
Code § 1-605.02, Dr. Cohen filed this action.
B. Procedural Background
Dr. Cohen originally filed a breach of contract claim
against the defendants in the Superior Court of the District of
Columbia (“Superior Court”) on September 9, 2013. Defs.’ Mot.,
ECF No. 24 at 1. On March 14, 2014, his claim was dismissed with
prejudice, although the Superior Court granted Dr. Cohen leave
to file an amended complaint. Id. at 2. On April 2, 2014, Dr.
Cohen filed an amended complaint, alleging the claims currently
before the Court. See First Am. Compl., ECF No. 2–2 at 100–06.
In light of the federal due process claim, the defendants
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removed the case to this Court on April 30, 2014. See Notice of
Removal, ECF No. 1.
This Court dismissed Dr. Cohen’s first amended complaint
with prejudice after Dr. Cohen failed to timely respond to the
defendants’ motion to dismiss and to the defendants’ opposition
to his already-late motion for an extension of time. Cohen v.
Bd. of Trs. of the Univ. of the District of Columbia, 305 F.R.D.
10 (D.D.C. 2014). On appeal, the Court of Appeals for the
District of Columbia Circuit (“D.C. Circuit”) affirmed this
Court’s “denial of Cohen's motion to extend time and its
dismissal of the complaint,” but reversed the Court’s dismissal
“insofar as it dismissed the complaint with prejudice.” Cohen v.
Bd. of Trs. for the Univ. of Univ. of the District of Columbia,
819 F.3d 476, 485 (D.C. Cir. 2016).
Accordingly, Dr. Cohen filed a second amended complaint on
August 1, 2016. See Second Am. Compl., ECF No. 22. Defendants
filed a motion to dismiss on September 19, 2016. See Defs.’
Mot., ECF. No 24. This motion is ripe and ready for review.
III. Standard of Review
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). To survive a
motion to dismiss, a complaint must contain “sufficient factual
matter, accepted as true, to state a claim to relief that is
5
plausible on its face. A claim has facial plausibility when the
pleaded factual content allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations
and quotations omitted).
In considering a motion to dismiss, the Court should
liberally view the complaint in the plaintiff's favor, accepting
all factual allegations as true, and giving the plaintiff the
benefit of all inferences that can be drawn therefrom. Redding
v. Edwards, 569 F. Supp. 2d 129, 131 (D.D.C. 2008) (citing Kowal
v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994)).
Nevertheless, “[t]hreadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not
suffice.” Iqbal, 556 U.S. at 678. “While detailed factual
allegations are not necessary, [the] plaintiff must plead enough
facts to ‘raise a right to relief above the speculative level.’”
Morello v. District of Columbia, 73 F. Supp. 3d 1, 3 (D.D.C.
2014) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555,
(2007)). The court “may consider attachments to the complaint as
well as the allegations contained in the complaint itself.”
English v. District of Columbia, 717 F.3d 968, 971 (D.C. Cir.
2013). As discussed above, Dr. Cohen attaches several exhibits
to his complaint, including the Sixth Master Agreement and his
communications with the defendants.
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IV. Analysis
A. Dr. Cohen’s Claims are Not Time-Barred
The defendants move to dismiss all of Dr. Cohen’s claims on
statutes of limitations grounds. See Defs.’ Mot., ECF No. 24 at
10-15. Federal Rule of Civil Procedure 12(b)(6) “is the vehicle
for asserting the affirmative defense of statutory time
limitation.” Peart v. Latham & Watkins LLP, 985 F. Supp. 2d 72,
80 (D.D.C. 2013). Because statutes of limitations issues often
depend on contested questions of fact, “a defendant is entitled
to succeed on a Rule 12(b)(6) motion to dismiss brought on
statutes of limitations grounds only if the facts that give rise
to this affirmative defense are clear on the face of the
plaintiff’s complaint.” Lattisaw v. District of Columbia, 118 F.
Supp. 3d 142, 153 (D.D.C. 2015).
The defendants argue that all of Dr. Cohen’s asserted
claims in the second amended complaint are conclusively time-
barred. See Defs.’ Mot., ECF No. 24 at 10-15. They reason that
the statutes of limitations for his claims began to run when the
claims accrued on September 10, 2010, the date that Dr. Cohen
learned that President Sessoms had denied his termination
appeal. Id. According to the defendants, the statutes of
limitations ran through August 1, 2016, the date that Dr. Cohen
filed his second amended complaint. See id. at 11-15. Because
all of the claims are undisputedly subject to three-year
7
statutes of limitations, the defendants argue that all of Dr.
Cohen’s claims have been filed about three years too late. Id.
at 12-14.
The defendants assert that the August 1, 2016 filing date
is the date when the statutes of limitations were finally tolled
because this Court dismissed Dr. Cohen’s first amended
complaint, which had been filed on April 2, 2014. Id. at 13.
That July 7, 2014 dismissal, according to the defendants, “wiped
out” the prior complaint filing’s tolling effect. Id. (quoting
Ciralsky v. CIA, 355 F.3d 661, 672 (D.C. Cir. 2004)). Thus, the
defendants reason that the three-year statutes of limitations
started running from the time Dr. Cohen’s claims accrued in 2010
and did not stop for six years—until Dr. Cohen filed his second
amended complaint on August 1, 2016. The Court disagrees.
The defendants’ statutes of limitations argument fails in
the face of the “mandate rule.” Under that rule, “an inferior
court has no power or authority to deviate from the mandate
issued by an appellate court.” Indep. Petroleum Ass’n of Am. v.
Babbitt, 235 F.3d 588, 596-97 (D.C. Cir. 2001)(citing Briggs v.
Pa. R.R. Co., 334 U.S. 304, 306 (1948)). The mandate rule is “a
‘more powerful version’ of the law-of-the-case doctrine, which
prevents courts from reconsidering issues that have already been
decided in the same case.” Id. at 597 (quoting LaShawn A. v.
Barry, 87 F.3d 1389, 1393 n.3 (D.C. Cir. 1996) (en banc)). The
8
rule’s scope extends to issues that were decided by the D.C.
Circuit “either explicitly or by necessary implication.” United
States v. Ins. Co. of N. Am., 131 F.3d 1037, 1041 (D.C. Cir.
1997).
On appeal, the D.C. Circuit reversed this Court insofar as
it had dismissed Dr. Cohen’s complaint with prejudice, thus
dismissing the case. Cohen, 819 F.3d at 485. Consequently, this
Court’s July 7, 2014 Order ultimately had the effect of
dismissing Dr. Cohen’s first amended complaint without
prejudice, and did not dismiss his case. See Mandate of USCA,
ECF No. 21. The D.C. Circuit explained that although dismissal
of the complaint and the case would have wiped out a previously-
filed complaint’s tolling effect, dismissal of only the
complaint, and not the case, would have no such result. Cohen,
819 F.3d at 478-79. Accordingly, the D.C. Circuit concluded that
Dr. Cohen is “free to file an amended complaint” with the
statute of limitations “tolled from the date of his original
complaint.” Id. at 478-79, 484 (emphasis added). 1 Thus, Dr.
Cohen’s second amended complaint, filed on August 1, 2016, is
1 Although Dr. Cohen’s original complaint was dismissed with
prejudice, the Superior Court allowed Dr. Cohen to file an
amended complaint in the same case, suggesting that the case was
not dismissed. See Removed Materials, ECF No. 1-2, Exs. HH and
II at 348-51. Regardless, the D.C. Circuit’s mandate is clear:
the statutes of limitations are tolled from the date of the
original complaint.
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not time-barred because the applicable statutes of limitations
were tolled from the date that his original complaint was filed:
September 9, 2013.
The D.C. Circuit’s mandate disposes of this issue because
the defendants argue that all of Dr. Cohen’s claims are subject
to three-year statutes of limitations. See Defs.’ Mot., ECF No.
24 at 12-15. Further, defendants conceded that the original
complaint filed on September 9, 2013 was timely. See Defs.’
Reply, ECF No. 26 at 5 (explaining that the claim in Dr. Cohen’s
original complaint “was timely asserted”). Stated differently,
because the statutes of limitations have been tolled from
September 9, 2013, Cohen, 819 F.3d at 478-79, and because the
defendants conceded that Dr. Cohen’s claims with three-year
limitations periods made as of that date were timely, see Defs.’
Reply, ECF No. 26 at 5, all of Dr. Cohen’s claims were timely.
Accordingly, the applicable statutes of limitations pose no
barrier for Dr. Cohen.
B. Dr. Cohen’s Common Law Claims (Counts 2-6) are Dismissed
for Failure to Exhaust Administrative Remedies
The defendants also argue that Dr. Cohen’s common law
claims for trespass to chattel, conversion, bailee indebtedness,
negligence, and intentional infliction of emotional distress are
preempted because he failed to exhaust the administrative
remedies available to him pursuant to the CMPA, D.C. Code § 1-
10
601.01 et seq., and the Sixth Master Agreement. See Defs.’ Mot.,
ECF No. 24 at 15-19. Dr. Cohen agrees that the Sixth Master
Agreement governed his employment relationship with UDC, but he
argues that he exhausted his administrative remedies. Pl.’s
Opp’n, ECF No. 25 at 8 (calling the Sixth Master Agreement a
“CMPA[-]sanctioned . . . collective bargaining agreement”).
Alternatively, he argues that, for various reasons discussed
more fully below, he was not required to exhaust administrative
remedies. Id. at 8-13. The Court concludes that Dr. Cohen was
required to exhaust the administrative remedies put in place by
the Sixth Master Agreement and the CMPA. His common law claims
are dismissed because he failed to do so.
1. The CMPA and the Sixth Master Agreement
The “CMPA provides for a comprehensive system of
administrative review of employer actions——whether under CMPA
itself through [the Office of Employee Appeals (“OEA”)] or under
a union contract subject to PERB [review]——and in each case
subject to judicial review in [the] Superior Court [of the
District of Columbia].” District of Columbia v. Thompson, 593
A.2d 621, 633 (D.C. 1991); see D.C. Code § 1-601.01, et seq. The
CMPA “create[s] a mechanism for addressing virtually every
conceivable personnel issue among the District, its employees,
and their unions——with a review role for the courts as a last
11
resort, not a supplementary role for the courts as an
alternative forum.” Thompson, 593 A.2d at 634.
Normally, a terminated employee can choose between: (1)
appealing his termination to the OEA, D.C. Code § 1-616.52(b);
or (2) using any grievance procedure set out in an applicable
collective bargaining agreement. Id. § 1-616.52(e). However,
appeal to the OEA is foreclosed when the applicable collective
bargaining agreement “includes exclusive grievance procedures.”
See Pitt v. District of Columbia Dep’t of Corrs., 819 A.2d 955,
958 (D.C. 2003) (citation omitted); D.C. Code § 1-606.02(b)
(stating that “[a]ny performance rating, grievance, adverse
action or reduction-in-force review, which has been included
within a collective bargaining agreement . . . shall not be
subject to the provisions” of the CMPA’s subchapter governing
appellate proceedings before the OEA). The Sixth Master
Agreement included such exclusive grievance procedures. See
Sixth Master Agreement, ECF No. 22-1 at art. IX, §§ B(2-3); art.
XI, § A(1). Therefore, the process set forth in the Sixth Master
Agreement was Dr. Cohen’s only available recourse. 2
2 Even if Dr. Cohen had been permitted to appeal his removal to
the OEA as an alternative to following the Sixth Master
Agreement’s grievance procedure, the Court’s ultimate conclusion
that Dr. Cohen failed to exhaust his administrative remedies
would not change. Dr. Cohen has not alleged that he appealed his
termination to OEA nor, as will be discussed, has he exhausted
the grievance procedure put in place by the Sixth Master
12
With appeal to the OEA foreclosed, Dr. Cohen’s only
recourse was to make use of the grievance procedure put in place
by the Sixth Master Agreement. The Sixth Master Agreement is an
agreement “made between the [UDC] Faculty Association . . . and
the [UDC] Board of Trustees.” Sixth Master Agreement, ECF No.
22-1 at art. I. It “set[s] forth terms and conditions of
employment for faculty,” including the disciplinary procedures
that UDC and its employees must follow. Id. at arts. II, XI. As
articulated above, the disciplinary procedures set forth in the
Sixth Master Agreement are the “sole and exclusive means by
which a disciplinary or adverse action may be brought against a
faculty member . . . .” Id. at art. XI, § A(1).
According to the Sixth Master Agreement, a faculty member
may only be subject to a “disciplinary action”—defined as a
“written reprimand, suspension, or dismissal”—for cause. Id. at
§§ A(2),(3). First, disciplinary action shall be preceded by a
discussion between the faculty member and a University
Administrator. Id. at § B(1). At that point, the Administrator
must recommend a course of action. When suspension or
termination is recommended, as it was for Dr. Cohen, the Provost
shall conduct an informal inquiry. If she determines that the
Agreement. Thus, assuming both options were open to him, he has
exhausted neither one.
13
recommended action is warranted, the Provost shall provide the
faculty member with a written statement of cause describing the
adverse action and the facts warranting it. Id. at §§ B(3-5).
The aggrieved faculty member has ten days to appeal the
decision. Id. at § B(6). At that point, the President may
conduct an inquiry and shall either sustain, modify, or dismiss
the decision. Id. at § C(1)(a). If the President upholds a
termination decision, the decision may be appealed “by the
Association to arbitration” in accordance with Article IX. Id.
at § C(1)(b). Article IX clarifies that “the Association, and
only the Association, may . . . commence an arbitration
proceeding.” Id. at art. IX, § D(7). The Sixth Master Agreement
does not address a next step if the Association declines to
arbitrate. At this point, then, the “exclusive” Sixth Master
Agreement procedure is completed and an affected employee must
turn to the CMPA for recourse. The CMPA allows an employee to
appeal the Association’s refusal to arbitrate to the PERB as an
“unfair labor practice.” D.C. Code § 1-605.02(3). The PERB’s
evaluation of the Association’s declination is reviewable in
Superior Court. D.C. Code § 1-617.13.
2. Exhaustion Requirement
Because, in Dr. Cohen’s words, all of his claims “relate[]
to his removal . . . from employment,” his removal was a
“disciplinary or adverse action” covered by the exclusive
14
provisions of the Sixth Master Agreement. Pl.’s Opp’n, ECF No.
25 at 12; see Sixth Master Agreement, ECF No. 22-1 at art. XI, §
A(2). Assuming his claims are true, Dr. Cohen complied with the
Sixth Master Agreement’s mandated grievance procedure because he
appealed his termination to President Sessoms. See Appeal
Letter, ECF No. 22-4; Sixth Master Agreement, ECF No. 22-1 at
art. XI, §§ B(1-6). When President Sessoms upheld Dr. Cohen’s
removal, Dr. Cohen then properly “requested that the Association
commence arbitration proceedings” to appeal the decision, but
the Association “refused to represent him.” 3 Pl.’s Opp’n, ECF No.
25 at 8; Sixth Master Agreement, ECF No. 22-1 at art. XI, §
C(1)(b). Accordingly, he contends that that he “exhausted all
administrative remedies.” Id. The Court disagrees.
Once the Association refused his request to appeal his
termination, Dr. Cohen’s “only remedy at that point [was] a
complaint against the union filed with the Public Employee
Relations Board, requesting an order compelling the union to
arbitrate.” See Bd. of Trs. of the Univ. of the District of
Columbia v. Myers, 652 A.2d 642, 646 (D.C. 1995). An appeal to
3 Defendants argue that Dr. Cohen did not raise this fact in his
complaint and thus, cannot “amend his complaint through
opposition.” Defs.’ Reply, ECF No. 26 at 11 n. 7. However, the
Court finds that this fact was sufficiently pled. See Second Am.
Compl., ECF No. 22 ¶ 41 (arguing that the Sixth Master Agreement
violates due process when the Association elects not to proceed
to arbitration).
15
the PERB is mandated because there is “no doubt that [the] PERB
has the power, under D.C. Code § 1-605.[0]2(3), to order the
union to pursue arbitration of an employee’s claim against the
employer if [the] PERB concludes that the union’s refusal to
arbitrate amounted to an unfair labor practice.” Id. It is
undisputed that Dr. Cohen never filed a complaint against the
Association with the PERB. This means that he “failed to take
advantage of the final procedural remedy” available to him. Id.
at 647. When the Association failed to pursue arbitration, Dr.
Cohen “could not circumvent the procedure prescribed in the
[collective bargaining agreement and the CMPA]——namely,
arbitration and review by the PERB——by filing a lawsuit.” See
Johnson v. District of Columbia, 552 F.3d 806, 811 (D.C. Cir.
2008). Because Dr. Cohen attempted just that prohibited
circumvention——declining to file a complaint against his
Association with the PERB and, instead, filing a lawsuit——he
failed to exhaust the administrative remedies available to him.
3. Dr. Cohen’s Arguments Against Exhaustion are
Unavailing
Dr. Cohen’s fallback position——that he had no need to
exhaust administrative remedies——is unpersuasive. His primary
argument is that he did not need to exhaust the available
grievance procedure because the Sixth Master Agreement
eliminated the safeguard of “impartial judicial review of an
16
employee’s dispute.” Pl.’s Opp’n, ECF No. 25 at 8-11. This
argument fails because the CMPA provides for review of the
PERB’s decisions in the Superior Court. 4 D.C. Code §§ 1-
605.02(12), 1-617.13(c) (“Any person aggrieved by a final order
of the [PERB] granting or denying in whole or in part the relief
sought may obtain review in the Superior Court by filing a
request within 30 days after the final order has been issued.”).
To the extent that Dr. Cohen is attempting to make a
futility argument, that argument also fails. See Myers, 652 A.2d
at 645 (“[An] employee may be able to bypass administrative
remedies under a collective bargaining agreement by showing that
the pursuit of these remedies would be futile.”). First, the
fact that the Association denied his alleged request to
arbitrate does not demonstrate futility. See id. at 648 (“The
fact that a union may decline to pursue an employee’s grievance
does not in itself reflect futility in exhausting administrative
4 This conclusion is distinct from the due process analysis, see
infra Section C. The fact that Dr. Cohen did not exhaust his
administrative remedies does not automatically warrant
dismissing his due process claim because the defendants did not
argue that Dr. Cohen was required to exhaust his constitutional
claim. Indeed, the defendants expressly disavowed opposing Dr.
Cohen’s due process claim on CMPA preemption grounds. See Defs.’
Reply, ECF No. 26 at 16 n.8. Because the D.C. Circuit has
expressly declined to decide whether the CMPA’s exhaustion
requirement is jurisdictional or nonjurisdictional, the Court
need not raise the issue sua sponte. See Johnson v. District of
Columbia, 552 F. 3d. 806, 811 n.2 (D.C. Cir. 2008).
17
remedies . . . .”). Second, because “the PERB has authority to
determine that the failure to arbitrate under a [collective
bargaining agreement] is an unfair labor practice and to fashion
a remedy,” “it would not have been futile for [Dr. Cohen] to
seek a remedy from the PERB” when the Association declined to
arbitrate. See Johnson, 552 F.3d at 814.
Dr. Cohen also argues that he did not need to exhaust his
administrative remedies because OEA appeal was not an option,
thanks to the Sixth Master Agreement’s exclusive grievance
procedure. See Pl.’s Opp’n, ECF No. 25 at 9. As explained above,
the Court agrees that Dr. Cohen was foreclosed from appealing to
the OEA. However, the Sixth Master Agreement’s exclusive
grievance procedure does not negate his duty to exhaust that
procedure before proceeding to court. In Myers, a UDC professor
bound by an exclusive grievance procedure was obligated to
exhaust that procedure before proceeding to court on his claim
against the school. 652 A.2d at 646-48. This was true even
though the exclusive procedure did not “provide for appeal to
OEA.” Id. at 645 n.6. So too here.
Dr. Cohen also argues that he did not need to exhaust his
administrative remedies because his common law tort claims did
“not arise out of employer conduct in handling personnel
ratings, employee grievances, and adverse actions.” Pl.’s Opp’n,
ECF No. 25 at 11-12. In other words, Dr. Cohen argues that his
18
tort claims are not sufficiently related to his employment to be
cognizable as claims governed by the CMPA or the CMPA-sanctioned
Sixth Master Agreement. With his tort claims purportedly outside
of the reach of the CMPA and the Sixth Master Agreement, Dr.
Cohen argues that he had no need to exhaust the administrative
remedies under the CMPA and the Sixth Master Agreement.
The Court disagrees. While it is true that the CMPA and a
CMPA-sanctioned collective bargaining agreement do not preempt
all tort claims generally, they do preempt any claims of
wrongful treatment and injury that are cognizable as personnel
issues. King v. Kidd, 640 A.2d 656, 663 (D.C. 1993); see also
Thompson, 593 A.2d at 634 (describing the CMPA as “a mechanism
for addressing virtually every conceivable personnel issue among
the District, its employees, and their unions” and finding that
claims within its reach are only reviewed by courts “as a last
resort”). Dr. Cohen’s tort claims all arise from a
quintessential personnel issue: his termination. Dr. Cohen
himself contradicts his argument when he admits that his claims
“relate[] to his removal . . . from employment.” See Pl.’s
Opp’n, ECF No 25 at 12. His trespass to chattel, conversion,
bailee indebtedness, and negligence claims are all based on
UDC’s alleged seizure of his office and the items found therein
following its decision to fire him. See Second Am. Compl., ECF
No. 22 ¶¶ 18, 20, 21, 43, 46, 49, 52. Similarly, his intentional
19
infliction of emotional distress claim is connected to his
dismissal, because it is premised on defendants “targeting” him
for termination. Id. ¶¶ 54-70. In short, because Dr. Cohen’s
tort claims all clearly connect back to the core dispute
regarding his termination, they do not escape the reach of the
CMPA and the CMPA-sanctioned Sixth Master Agreement.
Accordingly, Dr. Cohen was obligated to exhaust the
administrative remedies available to him.
Alternatively, Dr. Cohen argues that he need not exhaust
his claims because the CMPA and the Sixth Master Agreement,
which both only cover CMPA-defined “grievances,” do not apply
because his tort claims cannot be understood as CMPA
“grievances.” Pl.’s Opp’n, ECF No. 25 at 12-13. Dr. Cohen’s
contention that his claims are not “grievances” has some merit.
The CMPA defines a “grievance” as “any matter under the control
of the District government which impairs or adversely affects
the interest, concern, or welfare of employees, but does not
include adverse actions resulting in removals.” D.C. Code § 1-
603.01(10). Because all of Dr. Cohen’s claims are ultimately
connected to his removal, the claims do not fit within the CMPA
definition of a “grievance.” See Pl.’s Opp’n, ECF No. 25 at 12.
But it does not follow that Dr. Cohen need not exhaust his
administrative remedies. First, the CMPA “grievance” definition
goes on to specify that “[t]his definition . . . is not intended
20
to restrict matters that may be subject to a negotiated
grievance and arbitration procedure in a collective bargaining
agreement between the District and a labor organization
representing employees.” D.C. Code § 1-603.01(10). Thus the CMPA
“grievance” definition does not restrict the scope of the Sixth
Master Agreement, which clearly subjects removal-related matters
to its exclusive grievance procedure. See Sixth Master
Agreement, ECF No. 22-1 at art. XI, §§ A(2), B(6), C(1). Bound
by that exclusive grievance procedure, Dr. Cohen was required to
exhaust it before filing suit.
Regardless, Dr. Cohen errs in arguing that the CMPA and the
CMPA-sanctioned Sixth Master Agreement only apply to
“grievances” as defined in the CMPA. A “grievance” is just one
type of personnel issue that the CMPA addresses. “Adverse
actions,” like removals, are another. See D.C. Code § 1-
616.52(d) (differentiating between a “grievance” and “adverse
actions.”) Although the CMPA provides procedures for both types
of matters, a collective bargaining agreement’s procedures for
dealing with such matters take precedence. Id. Thus, Dr. Cohen
is misguided in thinking his claim escapes the exclusive
grievance procedure put in place by the Sixth Master Agreement
and the CMPA.
Finally, Dr. Cohen contends that he did not need to exhaust
the available administrative remedies because “the CMPA treats
21
educational employees of UDC differently from other District
employees under D.C. Code § 1-602.03(b).” Pl.’s Opp’n, ECF No.
25 at 13. This argument is also unavailing because it does not
appear to the Court that the inapplicability of the exempted
subchapters have any bearing on Dr. Cohen’s obligation to
exhaust his removal-related claims. For example, Section 1-
602.01 states that the CMPA “shall apply to all employees of the
District of Columbia” unless “specifically exempted.” Section 1-
602.03 subjects UDC educational employees to all of the CMPA
except the subchapters concerning: (1) career service,
subchapter VIII; (2) executive service, subchapter X; (3)
incentive awards, subchapter XI; (4) employee development,
subchapter XIII; (5) the voluntary leave transfer program,
subchapter XIII-A; (6) incentive awards, subchapter XIX; and (7)
reductions-in-force, subchapter XXIV. It also excludes UDC
employees from the provisions of §1-609.01, which “relat[es] to
the development of job descriptions.” None of these exempted
subchapters are relevant to Dr. Cohen’s claims and none concern
adverse action or grievance procedures. Thus, Dr. Cohen, as a
UDC employee, was obligated to exhaust his administrative
remedies under the CMPA.
In sum, all of Dr. Cohen’s tort claims were connected to
his removal from employment such that they did not escape the
grasp of the CMPA and the CMPA-sanctioned Sixth Master
22
Agreement, to which Dr. Cohen was bound. His failure to exhaust
the administrative remedies available to him, namely appealing
the Association’s refusal to arbitrate to the PERB before filing
a lawsuit, warrants dismissal of those tort claims.
C. Dr. Cohen States a Due Process Claim Against UDC Board of
Trustees, Provost Baxter, and President Sessoms, but Fails
to State a Claim Against Professor Steadman
Defendants move to dismiss Dr. Cohen’s due process claim
pursuant to Section 1983 and Bivens for failure to state a
claim. They argue that Dr. Cohen received due process because he
had notice of his termination and an opportunity to respond,
“the essential elements of a due process claim.” Defs.’ Mot.,
ECF No. 24 at 21. In turn, Dr. Cohen asserts that his due
process rights were violated because he was terminated without
notice, without an opportunity to be heard, and for “wholly
arbitrary and invidious reasons.” Second Am. Compl., ECF No. 22
¶¶ 38-41. The Court understands Dr. Cohen’s argument to be that
his due process rights were violated in different ways by UDC
and the individual defendants, respectively. First, he alleges
that the Sixth Master Agreement, “provided by” the UDC Board of
Trustees, is unconstitutional because no “impartial judicial
review is conducted at all when the third-party union elects not
to represent the employee.” Id. ¶ 41. As the Court understands
it, Dr. Cohen argues that the Sixth Master Agreement violates
procedural due process because there is no substantive,
23
independent review of UDC’s termination decision if the PERB
finds that the Association’s refusal to arbitrate was not an
unfair labor practice. Dr. Cohen’s allegations against the
individual defendants are less clear. He seems to argue that
President Sessoms, Provost Baxter, and Professor Steadman
violated his due process rights in three ways: (1) by
implementing the unconstitutional Sixth Master Agreement; (2) by
flouting the procedural requirements of the same policy; and (3)
by “target[ing]” him for termination for “invidious reasons.”
See generally Second Am. Compl., ECF No. 22. Because the
defendants’ motion to dismiss fails to address several of these
plausible arguments, the motion as to the UDC Board of Trustees,
President Sessoms, and Provost Baxter is DENIED. The motion to
dismiss as to Professor Steadman is GRANTED.
1. Dr. Cohen States a Due Process Claim Pursuant to
Section 1983 Against the UDC Board of Trustees
Section 1983 provides a private cause of action against any
person who, under the color of state law, deprives another of a
constitutional or statutory right. A municipality, like UDC,
“can be found liable under [Section] 1983 only where the
municipality itself causes the constitutional violation at
issue.” City of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989)
(citing Monell v. Dep’t. of Soc. Servs. of N.Y.C., 436 U.S. 658,
694-95 (1978))(emphasis in original). Thus, to state a claim
24
against UDC, Dr. Cohen’s complaint must allege that: (1) he
suffered a constitutional harm; and (2) the constitutional harm
was caused by UDC’s policy or custom. Morello v. District of
Columbia, 73 F. Supp. 3d 1, 3-4 (D.D.C. 2014)(citing Baker v.
District of Columbia, 326 F.3d 1302, 1306 (D.C. Cir. 2003)).
With regard to the second prong, Dr. Cohen must establish an
“affirmative link,” such that UDC’s municipal policy was the
“moving force” behind the constitutional violation. Id. at 4
(quoting Baker, 326 F.3d at 1306).
It is uncontested that UDC and its Board of Trustees is an
independent agency subject to Section 1983 municipal liability.
§ 38-1202.01 (UDC is an “independent agency of the government of
the District of Columbia . . . which [is] governed by the Board
of Trustees” with the power to sue or be sued); see also Hill v.
Bd. of Trs. of the Univ. of the District of Columbia, 146 F.
Supp. 3d 178 (D.D.C. 2015) (finding that the plaintiff, a UDC
employee, stated a Section 1983 claim against the UDC Board of
Trustees); Green v. Washington, D.C., Civ. No. 05-1097, 2006 WL
1712399 at *2 n.3 (D.D.C. June 16, 2006) (finding that the UDC
Board of Trustees is an independent agency subject to Section
1983 liability, notwithstanding the plaintiff’s failure to state
a claim).
Having determined that the UDC Board of Trustees is subject
to Section 1983 municipal liability, the Court now analyzes
25
whether Dr. Cohen has plausibly alleged: (1) an underlying due
process constitutional violation; and (2) that a municipal
policy caused the underlying violation.
a. Predicate Due Process Constitutional Violation
The Due Process Clause guarantees that no person “shall ...
be deprived of life, liberty, or property, without due process
of law.” U.S. Const. amend. V. Procedural due process “imposes
constraints on governmental decisions which deprive individuals
of ‘liberty’ or ‘property’ interests . . . .” Mathews v.
Eldridge, 424 U.S. 319, 332 (1976). To that end, the government
must provide “sufficient notice and a meaningful opportunity to
be heard on the deprivation of a protected liberty or property
interest.” Rason v. Nicholson, 562 F. Supp. 2d 153, 155 (D.D.C.
2008)(citing United States v. E–Gold, Ltd., 521 F.3d 411, 415
(D.C. Cir. 2008)). Dr. Cohen pleads a plausible predicate due
process violation because he alleges that: (1) he was deprived
of a protected liberty or property interest; (2) he lacked
sufficient notice of his impending deprivation; and/or (3) he
lacked a meaningful opportunity to be heard on that deprivation.
“The first inquiry in every [procedural] due process
challenge is whether the plaintiff has been deprived of a
protected interest in liberty or property. Only after finding
the deprivation of a protected interest do we look to see if the
[government's] procedures comport with due process.” Gen. Elect.
26
Co. v. Jackson, 610 F.3d 110, 117 (D.C. Cir. 2010) (quoting Am.
Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999)). Dr.
Cohen’s interest in his continued employment is protected
because, as a tenured professor at UDC, he could only be fired
“for cause.” Sixth Master Agreement, ECF No. 22-1 at art. XI, §
A(3); Second Am. Compl., ECF No. 22 ¶ 3. More generally, “[i]t
is undisputed that the [CMPA] creates a property interest for
employees governed by it.” McManus v. District of Columbia, 530
F. Supp. 2d 46, 72 (D.D.C. 2007) (quotes and citations omitted).
Plaintiff, a UDC employee, was governed by the CMPA-sanctioned
Sixth Master Agreement and the CMPA. Thus, accepting the
allegations in the complaint as true and drawing all reasonable
inferences in his favor, Iqbal, 556 U.S. at 678, Dr. Cohen has
alleged a cognizable property interest triggering “sufficient
notice and a meaningful opportunity to be heard.” Budik v.
United States, 949 F. Supp. 2d 14, 25 (D.D.C. 2013).
Next, the Court must “ask what process [UDC] provided, and
whether it was constitutionally adequate.” Zinermon v. Burch,
494 U.S. 113, 126 (1990). Generally, whether a procedure is
adequate is a “flexible” assessment that “varies with the
particular situation.” Id. at 127 (citing Mathews, 424 U.S. at
335). In applying the Mathews test—which involves weighing the
private interest, the government interest, and the risk of an
erroneous deprivation—the court “usually has held that the
27
Constitution requires some kind of hearing before the State
deprives a person of liberty or property.” Id. However, in some
circumstances, a post-deprivation hearing satisfies due process.
Id. at 128; see also Black v. District of Columbia, 134 F. Supp.
3d 255, 261 (D.D.C. 2015)(“Due process may be satisfied by
either pre-deprivation procedures or adequate post-deprivation
remedies.”)(internal quotations and citations omitted). While
Dr. Cohen alleges that he lacked prior notice because he did not
receive UDC’s letters warning him of his impending termination,
Second Am. Compl., ECF No. 22 ¶¶ 15, 16, his complaint focuses
on what he alleges is the Sixth Master Agreement’s inadequate
post-deprivation process. Dr. Cohen does not allege that the
Sixth Master Agreement fails to provide sufficient pre-
termination notice. See generally Second Am. Compl., ECF No. 22.
Therefore, Dr. Cohen’s claim that he did not actually receive
notice is irrelevant to his argument that the Sixth Master
Agreement is facially unconstitutional.
The relevant allegation, then, is that Dr. Cohen was not
provided with a meaningful opportunity to be heard once he was
terminated. Dr. Cohen argues that the Sixth Master Agreement
does not provide for independent review of UDC’s adverse
employment actions when the Association elects not to appeal
that action to arbitration. Second Am. Compl., ECF No 22 ¶ 41.
Indeed, the Association’s refusal to arbitrate is appealable
28
under the CMPA to the PERB and later to the Superior Court, but
this review is limited to whether the Association’s decision was
“an unfair trade practice,” and does not assess the merits of
the underlying employment action. See D.C. Code §§ 1-605.02(3),
1-617.13(c). To that end, Dr. Cohen argues that the fairness of
the Association’s refusal to arbitrate is “unrelated” to his
termination. Pl.’s Opp’n, ECF No. 25 at 16.
The defendants contend that Dr. Cohen fails to state a
claim because he had an opportunity to “challenge his
termination” by appealing to UDC’s President Sessoms. Defs.’
Mot., ECF No. 24 at 20-22 (citing Termination Letter, ECF No.
22-3, allowing Dr. Cohen to “appeal directly to the President”).
Relying on Guerrero v. University of the District of Columbia,
they contend that Dr. Cohen’s due process claim “must be
dismissed” because he was “afforded an administrative process
through which [he] could raise any challenges to the decision to
terminate.” Defs.’ Mot., ECF No. 24 at 21 (citing 251 F. Supp.
2d 13, 22-23 (D.D.C. 2003) (dismissing Plaintiff’s due process
claim because she was able to appeal her termination to the
Superior Court)). However, defendants do not acknowledge Dr.
Cohen’s essential claim: that the Sixth Master Agreement is
constitutionally inadequate. See generally id.
The Court finds that Dr. Cohen has stated a due process
claim because the Sixth Master Agreement does not provide for
29
independent review of the merits of a termination decision when
the Association refuses to bring the employee’s appeal to
arbitration. As previously discussed, under the Sixth Master
Agreement, a faculty member is entirely at the mercy of the
Association if the President upholds his termination: “[t]he
Association, and only the Association” “may” commence an
arbitration proceeding. Id. at art. XI, § (C)(1)(b), art. IX, §
D(7)(emphasis added). 5 If the Association declines to arbitrate,
there is no further process available under the Sixth Master
Agreement. At that point, an employee’s only option is to appeal
the Association’s decision to the PERB as an unfair labor
practice pursuant to the CMPA. D.C. Code §§ 1-605.02(3),(12).
The PERB’s decision is appealable to the Superior Court. 1-
617.13(c). If the PERB and/or the Superior Court finds that the
Association’s decision was not unfair, UDC’s termination
decision will never be reviewed.
Contrary to the defendants’ assertions, Dr. Cohen’s
predicament is distinct from the facts in Guerrero. In that
case, the plaintiff was subject to an earlier version of UDC’s
Master Agreement and was “afforded an administrative process
through which she could raise any challenges to the decision
5 Article XI – “Disciplinary/Adverse Action” refers to Article IX
“Grievance Procedures” for arbitration procedures.
30
before the termination became effective, coupled with a judicial
appeal [to the Superior Court.]” 251 F. Supp. 2d at 22-23
(emphasis added). This differs from the Master Agreement that
governed Dr. Cohen’s employment with UDC. Pursuant to the Sixth
Master Agreement, independent review is limited to whether the
Association’s refusal to arbitrate was unfair. See §§ 1-
605.02(3), 1-617.13(c). This independent review does not,
therefore, reach the merits of the termination decision. The
Court recognizes that courts have “repeatedly found that
‘[g]iven the layers of administrative and judicial review it
provides, the CMPA satisfies constitutional due process
requirements’ under the Mathews test.” Black v. District of
Columbia, 134 F. Supp. 3d 255, 261 (D.D.C. 2015)(quoting Owens
v. District of Columbia, 923 F. Supp. 2d 241, 250 (D.D.C. 2013)
and citing Mathews, 424 U.S. at 321). However, Dr. Cohen does
not plead that the CMPA is unconstitutional. Indeed, because the
Sixth Master Agreement was exclusive, the CMPA’s layers of
judicial review were unavailable to Dr. Cohen.
It well may be, after the benefit of discovery, that the
Sixth Master Agreement in fact satisfies due process. See, e.g.,
Hudson v. City of Chicago, 374 F.3d 554, 554 (7th Cir.
2004)(concluding that a collective bargaining agreement
satisfied due process, even when union refused to initiate
appellate procedures on plaintiffs’ behalf, because the
31
plaintiffs “could have sued the union”). However, the
defendants’ motion to dismiss does not confront Dr. Cohen’s
facial challenge to the Sixth Master Agreement and cites no
precedent upon which this Court could find in its favor.
Instead, the defendants merely conclude that Dr. Cohen received
the process he was due when he appealed to President Sessoms,
without considering whether due process requires an independent
review of UDC’s decision.
b. Municipal Liability
Assuming Dr. Cohen stated a due process violation, the
defendants argue that his claim must be dismissed because he has
not pled that any insufficient process was the result of a UDC
policy or custom. See Defs.’ Mot., ECF No. 24 at 21-22. The
Court disagrees. As stated above, a municipality can be found
liable under Section 1983 only if it itself caused the
constitutional violation. City of Canton, 489 U.S. at 385. Dr.
Cohen must therefore allege that UDC “deliberately” pursued the
problematic policy, establishing an “affirmative link” between
the Sixth Master Agreement and the due process violation.
Oklahoma City v. Tuttle, 471 U.S. 808, 823 (1985). There is no
“heightened pleading standard” in alleging municipal liability.
Faison v. District of Columbia, 907 F. Supp. 2d 82, 85 (D.D.C.
2012). “At the pleading stage, only an allegation of the
existence of a policy, practice, or custom and its causal link
32
to the constitutional deprivation suffered is required.” Maniaci
v. Georgetown Univ., 510 F. Supp. 2d 50, 64 (D.D.C. 2007).
Moreover, when “a plaintiff claims that a particular municipal
action itself violates federal law, or directs an employee to do
so, resolving these issues of fault and causation is straight
forward.” Bd. Of Cty. Cmm’rs of Bryan Cty. v. Brown, 520 U.S.
397, 404-05 (1997). Once a Court concludes that the municipal
action itself is unconstitutional, it can easily find “that the
municipal action was the moving force behind the injury . . . .”
Id. Such is the case here.
Dr. Cohen established that UDC caused the underlying
violation because it undeniably negotiated and ratified the
Sixth Master Agreement, an official “agreement made between the
[UDC] Faculty Association . . . and the [UDC] Board of
Trustees.” Sixth Master Agreement, ECF No. 22-1, art. I. This
Agreement, as discussed, is the exclusive policy by which UDC
employees may resolve grievances. See id. at art. IX, §§ B(2-3),
art. XI, § A(1). Its very purpose is to create municipal policy:
it “set[s] forth terms and conditions of employment” for public
employees. Id., art. II; see Monell, 436 U.S. at 694 (finding
that the New York Board of Education’s unconstitutional
maternity leave policy “unquestionably involves official policy
as the moving force of the constitutional violation”). When, as
here, a challenged policy is “properly made by that government's
33
authorized decision makers, it surely represents an act of
official government ‘policy’ . . . . ” Pembaur v. City of
Cincinnati, 475 U.S. 469, 481 (1986).
Because Dr. Cohen pled that the Sixth Master Agreement
deprived him of a protected property interest without due
process and because the Sixth Master Agreement is a municipal
policy, the defendants’ motion to dismiss Dr. Cohen’s municipal
Section 1983 claim is DENIED.
2. Dr. Cohen States a Due Process Claim Against
Individual Defendants President Sessoms and Provost
Baxter, but Fails to State a Claim Against Professor
Steadman
While Dr. Cohen’s complaint could certainly be more clearly
pled, the Court understands him to allege that the three
individual defendants, acting in their individual capacities,
deprived him of due process in three ways: (1) by implementing
and enforcing the Sixth Master Agreement; (2) by failing to
adhere to the Sixth Master Agreement’s procedural requirements;
and (3) by targeting him for termination for “wholly arbitrary
and invidious reasons.” Second Am. Compl., ECF No. 22 ¶¶ 37
(incorporating ¶¶ 10, 11, 13-17, 24-30, 34-36), 38-40. The
defendants respond that there has been no due process violation
because Dr. Cohen received notice and an opportunity to respond
before he was terminated. Defs.’ Mot., ECF No. 24 at 20-22.
34
To withstand the motion to dismiss, Dr. Cohen must allege
that each defendant through his or her “own individual actions,
has violated the Constitution.” Elkins v. District of Columbia,
690 F.3d 554, 564 (D.C. Cir. 2012)(quoting Iqbal, 556 U.S. at
676). Therefore, Dr. Cohen must plead that Professor Steadman,
Provost Baxter, and President Sessoms each deprived him of due
process. With this pleading requirement in mind, the Court
examines the allegations against each individual defendant.
a. Professor Vernise Steadman
Dr. Cohen’s Section 1983 claim against Professor Steadman
must be dismissed because he has not pled any facts connecting
her to the alleged constitutional violation. See Iqbal, 556 U.S.
at 676 (“[In Section 1983 suits] a plaintiff must plead
that each . . . defendant, through the official's own
individual actions, has violated the Constitution.”). Dr. Cohen
only alleges that Professor Steadman “took no action” when she
received his 2008-2009 school year evaluation and did not submit
it to school administrators “deliberately in order to terminate
[him].” Second Am. Compl., ECF No. 22 ¶¶ 10, 11.
Taking these allegations as true, Dr. Cohen does not argue
that Professor Steadman violated his due process rights. Her
inaction is completely unrelated to his alleged injury that he
was denied notice and an opportunity to respond under the Sixth
Master Agreement. While her alleged inaction may have
35
contributed to the causes underlying the termination, Dr. Cohen
does not claim that Professor Steadman took any action to
terminate him without due process and the complaint does not
allege that she implemented the Sixth Master Agreement. See
generally id. Dr. Cohen’s claim against Professor Steadman must
therefore be dismissed because he establishes no “affirmative
link” between her actions (or lack thereof) and his
constitutional injury. Rizzo v. Goode, 423 U.S. 362, 371 (1976).
b. Provost Graeme Baxter and President Allen Sessoms
Dr. Cohen’s allegations against Provost Baxter and
President Sessoms are similar. While Dr. Cohen’s argument is far
from clear, the Court understands him to allege that they both
denied him due process when they terminated him pursuant to the
Sixth Master Agreement. First, he pleads that Provost Baxter
enforced the school’s unconstitutional policy when she sent a
termination statement of cause invoking the Sixth Master
Agreement’s disciplinary process. Second Am. Compl, ECF No. 22 ¶
17 (citing and attaching Termination Letter, ECF No. 22-3); see
also English, 717 F.3d at 971 (“[The Court] may consider
attachments to the complaint as well as the allegations
contained in the complaint itself.”). Next, he pleads that
President Sessoms upheld his termination when he denied the
appeal pursuant to the Sixth Master Agreement. Second Am.
36
Compl., ECF No. 22 ¶ 26 (citing and attaching Denial Letter, ECF
No. 22-5).
Unlike the claim against Professor Steadman, the alleged
actions that Provost Baxter and President Sessoms took to
terminate Dr. Cohen pursuant to the plausibly unconstitutional
Sixth Master Agreement are “connected to [Dr. Cohen’s]
constitutional harm.” McGinnis v. District of Columbia, 65 F.
Supp. 3d 203, 217 (D.D.C. 2014); see also Dodds v. Richardson,
614 F.3d 1185, 1199 (10th Cir. 2010)(“Section 1983 allows a
plaintiff to impose liability upon a defendant-supervisor who .
. . implements, or in some other way possesses responsibility
for the continued operation of a policy the enforcement . . . of
which [subjects the plaintiff] . . . to the deprivation of any
rights secured by the Constitution.”)(internal citations
omitted); OSU Student Alliance v. Ray, 669 F.3d 1053, 1076 (9th
Cir. 2012) (“Advancing a policy that requires subordinates to
commit constitutional violations is always enough for Section
1983 liability . . . so long as the plaintiff’s constitutional
injury in fact occurs pursuant to the policy.”).
Not only do the defendants not address this argument in
their motion to dismiss, but they do not address any argument
against the individual defendants. Instead they rely on the same
conclusory and sparsely-supported argument that Dr. Cohen
received the process he was due. See generally Defs.’ Mot., ECF
37
No. 24. For the reasons discussed above, the Court disagrees.
Without supporting precedent or persuasive argument to the
contrary, Dr. Cohen’s claim against Provost Baxter and President
Sessoms survives, crossing “the line from conceivable to
plausible.” Iqbal, 556 U.S. at 680.
Second, Dr. Cohen alleges that Provost Baxter and President
Sessoms denied him due process when they failed to adhere to the
Sixth Master Agreement’s procedures. See Second Am. Compl., ECF
No. 22 ¶ 27. Notably, with the exception of one allegation, this
argument is only raised in Dr. Cohen’s opposition. See Pl.’s
Opp’n, ECF No. 25 at 13-15. 6 The Court “need not consider any
claims presented for the first time in [Dr. Cohen’s] opposition”
because a “plaintiff may not amend his complaint through his
opposition . . . .” Jones v. Castro, 168 F. Supp. 3d 169, 181
(D.D.C. 2016).
Accordingly, the Court will consider only the procedural
defect articulated in Dr. Cohen’s complaint: that defendants
violated his due process rights when he was not given the ninety
days’ “notice” that he was supposedly entitled to under the
6 The procedural violations alleged against the defendants
include: not initiating the disciplinary process within 90 days
as required, invoking an improper ground for removal, requiring
an evaluation when one was not necessary, and failing to
adequately address all of Dr. Cohen’s arguments in denying his
appeal. Id.
38
Sixth Master Agreement. Second Am. Compl., ECF No. 22 ¶ 27
(citing Sixth Master Agreement, ECF No. 22-1 art. XI § A(8)). 7 In
reviewing the cited and attached provision, however, Dr. Cohen’s
statement does not comport with the Sixth Master Agreement’s
text. Subsection A(8) does not require that UDC give an employee
ninety days’ “notice,” but rather it requires that the
University initiate the adverse action within ninety days after
the occurrence of the event warranting discipline. Sixth Master
Agreement, ECF No. 22-1 art. XI § A(8).
Moreover, taking these allegations as true, the claim that
Dr. Cohen’s termination was not procedurally perfect is not
relevant to his particular constitutional injury. “A breach of
state procedural requirements is not, in and of itself, a
violation of the Due Process Clause.” Payne v. District of
Columbia, 808 F. Supp. 2d 164, 174 (D.D.C. 2011) (quotes and
citations omitted). Dr. Cohen does not plead that any procedural
defect in following the Sixth Master Agreement caused his due
process deprivation. Rather, he pleads that the Agreement itself
caused the violation because it does not provide a
constitutionally adequate opportunity to be heard.
7 Dr. Cohen cited Article IX which does not contain a section
A(8), but after a careful review of the Article and the Sixth
Master Agreement, the Court believes that Dr. Cohen intended to
cite Article XI § A(8), which references a ninety day time
limit.
39
Finally, Dr. Cohen alleges that President Sessoms and
Provost Baxter “targeted” him for termination by denying him due
process for “wholly arbitrary and invidious reasons.” Second Am.
Compl., ECF No. 22 ¶¶ 24, 25, 27, 36, 40. Dr. Cohen seems to
allege that he was discriminated against on account of his age,
id. at ¶ 24, without actually bringing a discrimination claim.
Other allegations read like a “class of one” equal protection
claim – that is, he seems to argue that the defendants
irrationally treated him differently from other similarly
situated employees, not based on his membership in a particular
class. See Engquist v. Oregon Dep’t of Agric., 553 U.S. 591, 597
(2008). Not only are discrimination claims and equal protection
claims not due process claims, but the “class of one” theory is
also not cognizable in public employment cases. Id.
In sum, for the reasons articulated, the Section 1983 claim
against Professor Steadman in her individual capacity is
DISMISSED. However, Dr. Cohen has stated a Section 1983 claim
against Provost Baxter and President Sessoms in their individual
capacities insofar as he alleged that they terminated him
pursuant to the Sixth Master Agreement.
3. Dr. Cohen Fails to State a Bivens Claim
Dr. Cohen reiterates the same due process arguments in his
Bivens claim against all three Defendants in their individual
capacities. Second Am. Compl., ECF No. 22 ¶¶ 37-41. In response,
40
the defendants again argue that Dr. Cohen failed to allege that
they violated his constitutional rights because he was provided
him with notice and an opportunity to respond.
“A Bivens suit is an action against a [government] officer
seeking damages for violations of the plaintiff's constitutional
rights. These suits are . . . actions against [government]
officers in their individual capacity . . . .” Simpkins v.
District of Columbia Government, 108 F.3d 366, 368 (D.C. Cir.
1997). Like their Section 1983 counterparts, Bivens claims must
“at least” allege that the defendant official was personally
involved in the illegal conduct. Id. at 369. 8 However, “any
freestanding damages remedy for a claimed constitutional
violation has to represent a judgment about the best way to
implement a constitutional guarantee”; a Bivens claim is
therefore not an “automatic entitlement no matter what other
means there may be to vindicate a protected interest.” Wilkie v.
Robbins, 551 U.S. 537, 550 (2007). In “most cases” the Supreme
8 Qualified immunity protects government officials from civil
liability when their conduct does not violate “clearly
established statutory or constitutional rights of which a
reasonable person would have known.” Int’l Action Ctr. v. United
States, 365 F.3d 20, 24 (D.C. Cir. 2004). “At the motion to
dismiss stage . . . . the defendant bears the burden of pleading
and proving qualified immunity.” Dickey v. United States, 174 F.
Supp. 3d 366, 369 (D.D.C. 2016). Because the defendants do not
raise a qualified immunity defense, the Court does not address
whether they may be entitled to it. McGinnis, 65 F. Supp. 3d at
220.
41
Court has “found a Bivens remedy unjustified.” Id. The decision
whether to recognize a Bivens remedy “is not about ensuring that
every violation of a constitutional right is vindicated.” Davis
v. Billington, 681 F.3d 377, 381 (D.C. Cir. 2012). For this
reason, the Court must not imply a Bivens remedy when the
legislature has adopted a “comprehensive remedial scheme,” even
when “the existing scheme did not afford complete relief to the
plaintiff.” Id. at 381-82 (declining to recognize a Bivens claim
for the remediless plaintiff because the Civil Service Reform
Act was a “comprehensive remedial scheme” to administer public
employment rights). Likewise, a Court should not imply a Bivens
remedy when “alternative, existing” processes provide adequate
protection, Wilkie, 551 U.S. at 550, or when state law
authorizes adequate damages, Minneci v. Pollard, 565 U.S. 118,
120 (2011).
Therefore, the defendants argue that there is no basis to
“extend Bivens liability to any new . . . category of
Defendants.” Defs.’ Mot., ECF No. 24 at 22-23 (quoting
Correction Servs. Corp. v. Malesko, 534 U.S. 61, 68 (2001)).
Significantly, Dr. Cohen fails to address this argument in his
opposition. Indeed, he makes no argument to support his Bivens
claim whatsoever. See generally Pl.’s Opp’n, ECF No. 25. “It is
well understood in this Circuit that when a plaintiff files an
opposition to a dispositive motion and addresses only
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certain arguments raised by the defendant, a court may treat
those arguments that the plaintiff failed to address as
conceded.” Banner Health v. Sebelius, 905 F. Supp. 2d 174, 185
(D.D.C. 2012) (quoting Hopkins v. Women's Div., Gen. Bd. of
Global Ministries, 284 F. Supp. 2d 15, 25 (D.D.C.
2003) (citing FDIC v. Bender, 127 F.3d 58, 67–68 (D.C. Cir.
1997)). In light of the well-settled hesitation to extend Bivens
and Dr. Cohen’s lack of opposition, the Bivens claim against the
individual defendants is DISMISSED.
V. Conclusion
Accordingly, for the reasons set forth in this Memorandum
Opinion, the defendants’ motion to dismiss is GRANTED IN PART
and DENIED IN PART. Dr. Cohen’s remaining claim is his due
process claim pursuant to Section 1983 against municipal
defendant the UDC Board of Trustees and individual defendants
President Sessoms and Provost Baxter. A separate Order
accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
April 24, 2018
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