McGinnis v. District of Columbia

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_______________________________
)
BRANDY MCGINNIS, )
)
Plaintiff, )
)
v. ) Civil Action No. 13-1254 (EGS)
)
DISTRICT OF COLUMBIA, et al., )
)
Defendants. )
_______________________________)
MEMORANDUM OPINION
Brandy McGinnis brings this action against the District of
Columbia (“the District”) and four employees of the Metropolitan
Police Department (“the MPD”). Ms. McGinnis claims that her
constitutionally protected liberty interest was violated when
she was falsely accused of having lied on her application to the
MPD and terminated from employment. Ms. McGinnis also brings
claims for intentional infliction of emotional distress and
defamation. Pending before the Court is defendants’ motion to
dismiss plaintiff’s liberty-interest claims. Upon consideration
of the motion, the response and reply thereto, the applicable
law, and the entire record, the Court DENIES defendants’ motion.
I. Background
A. Ms. McGinnis Becomes a Police Officer in Florida.
Ms. McGinnis is a former police officer with the Aventura
Police Department in Aventura, Florida. See First Am. Compl.,
ECF No. 10 ¶ 2. She was “a well-respected and decorated police
officer” during her time in Aventura, and “received several
awards, promotions, and recognitions” there. Id. ¶¶ 2, 26.
Prior to becoming a police officer in Aventura, Ms. McGinnis
attended the Miami-Dade School of Justice for training. See id.
¶ 3. During training, Ms. McGinnis “discovered that she has a
medical condition involving a severe allergy to” pepper spray
(which is also known as oleoresin capsicum or “OC” spray). Id.
¶¶ 3, 27. This arose when Ms. McGinnis “suffered an unusually
harsh reaction to [OC] spray.” Id. ¶ 28. Ms. McGinnis had been
“sprayed directly in the eyes,” and she “suffered permanent
damage to her right eye which requires her to wear eyeglasses at
night and while reading.” Id. ¶¶ 3–4. She was ordered by a
supervisor to seek medical treatment and was ultimately
diagnosed with “both an allergy and a hypersensitivity to OC
spray.” Id. ¶¶ 28–29. This allergy “does not prevent her from
carrying or even using OC spray,” so long as she “avoid[s] a
direct spray to the eyes.” Id. ¶ 30. Accordingly, the incident
had no effect on her training, and she graduated successfully.
See id. ¶ 4.
B. Ms. McGinnis Applies to Become a Police Officer in the
District of Columbia.
On December 5, 2011, Ms. McGinnis filled out an application
for employment with the MPD. See id. ¶ 34. On this application,
2
Ms. McGinnis “disclosed the OC spray allergy, but noted that she
is certified to use and carry OC spray.” Id. On December 14,
2011, she interviewed with a background investigator. See id. ¶
35. Ms. McGinnis informed the investigator of her allergy and he
“indicated that this would not be a problem.” Id.
The next step in the application process was a physical
examination, which Ms. McGinnis took on January 17, 2012. See
id. ¶ 36. During the examination, she completed “a medical
history form that inquired about drug and sinus allergies, but
not food or other types of allergies,” checked a box which
indicated that she had an eye injury, and “in the space provided
. . . to explain . . . disclosed that she suffered an eye injury
from OC spray in 2007.” Id. During the physical examination, Ms.
McGinnis also informed the doctor “that she had an allergy to OC
spray . . . that there was no specific place for her to make the
OC spray allergy disclosure on the medical history form, but
that she disclosed the eye injury she suffered [as a result of
OC spray].” Id. ¶ 37. The doctor informed her that “this would
not be a problem since she disclosed the allergy to [the
investigator] and was already certified,” and indicated that “he
would make a note of it in Ms. McGinnis’s file.” Id.
C. Ms. McGinnis Begins Training at the MPD Academy.
Ms. McGinnis was hired by the MPD on January 25, 2012. See id.
¶ 38. On January 31, 2012, she began training at the MPD Academy
3
“where she immediately excelled and was made Class Leader on the
second day of training.” Id. ¶ 5. Her allergy was discussed soon
after training began, when Ms. McGinnis “advised [Sergeant]
Young and Class Officer Kelwin Ford . . . that she was allergic
to OC spray.” Id. ¶ 41. When Class Officer Ford expressed his
belief that everyone is allergic to OC spray, Ms. McGinnis
explained that “although everyone suffers irritation from OC
spray, people with an allergy suffer much more significant and
longer-lasting effects following a direct spray to the eyes.”
Id. Class Officer Ford indicated “that they would deal with the
issue when the time came for OC spray training.” Id.
Ms. McGinnis reminded Sergeant Young of her OC spray allergy
in May 2012, and again in June 2012, at which point Sergeant
Young told her “to get something in writing.” Id. ¶¶ 43–44.
Accordingly, on July 17, 2012, Ms. McGinnis provided him a
letter from Major William Washa of the Aventura Police
Department, which indicated that Major Washa had witnessed Ms.
McGinnis’s reaction to OC spray. See id. ¶ 45. Sergeant Young
said that he would give the letter to the OC spray instructor,
Lieutenant Ashley Rosenthal, and “advised that it should not be
a problem.” Id.
Ms. McGinnis alleges that she expected to participate fully in
the MPD’s OC spray training because “according to the other MPD
officers who were certified to conduct the . . . training . . .
4
they were . . . trained . . . to spray recruits across the
forehead rather than directly in the eyes.” Id. ¶ 47. Ms.
McGinnis alleges that Lieutenant Rosenthal was also trained to
spray across the forehead, “but because MPD apparently lacks a
clear policy for OC spray training and because Lt. Rosenthal
evidently believes this method is not effective enough, Lt.
Rosenthal has implemented her own custom . . . of spraying
recruits . . . across the eyes.” Id. ¶ 48.
D. Ms. McGinnis is Placed on Limited Duty.
On July 20, 2012, Ms. McGinnis was told to go to the medical
clinic to be exempted from OC spray training. See id. ¶ 49. Ms.
McGinnis protested “that she was not asking to be exempt, she
was just requesting that she not be sprayed directly in the
eyes,” id., but Lieutenant Rosenthal insisted she meet with an
MPD doctor. See id. ¶ 50. That doctor “placed Ms. McGinnis on
limited duty and advised that [she] would need to see an allergy
specialist.” Id. When Ms. McGinnis next reported to the MPD
Academy, two class officers “told her to remove her uniform and
put on civilian attire because she was on limited duty.” Id. ¶
53. Ms. McGinnis’s responsibilities as Class Leader were also
reassigned. See id. Later, Ms. McGinnis attended her appointment
with the allergy specialist and the doctor agreed to provide the
MPD with a letter “indicating that Ms. McGinnis has an ‘extra
sensitivity to pepper spray.’” Id. ¶¶ 55–56.
5
The following week, Ms. McGinnis went to the MPD clinic as
directed, and “was advised that she could not be exempted from
the OC spray training.” Id. ¶ 57. Her doctor called the Medical
Services Director, Gregory Stroud, “advised Ms. McGinnis that
she was still on limited duty,” and directed Ms. McGinnis to
report back to the clinic on August 16, 2012. See id.
Ms. McGinnis continued to report to the Academy. On August 3,
2012, she encountered Inspector Alisa Petty, the individual in
command of the Academy, who asked her why she was wearing
civilian clothing. See id. ¶ 60. After Ms. McGinnis explained,
Inspector Petty “indicated this was the first she had heard of
the matter.” Id. Five days later, when Ms. McGinnis’s class
underwent OC spray training—and were sprayed “directly across
the eyes,” id. ¶ 62—Inspector Petty advised Ms. McGinnis that
“she was ‘not doomed, just delayed.’” Id. ¶ 63. Although Ms.
McGinnis was permitted to be present during the OC spray
training, Lieutenant Rosenthal later told her to leave the area
“due to her allergy.” See id. ¶ 64.
Over the next week, Ms. McGinnis continued to participate in
training, had her photograph taken to be used in the graduation
program, and took her final written exam, which she “passed with
an 85%, one of the highest scores in the class.” Id. ¶¶ 65–68.
On August 16, 2012, she attended an appointment at the MPD
clinic, was “advised . . . that she would remain on limited
6
duty,” and was given additional documents for her allergy
specialist to complete, including a request “to clarify whether
Ms. McGinnis has an allergy to OC spray” and a request for a
determination “whether Ms. McGinnis is ‘capable of performing
the full range of duties required of a police officer.’” Id. ¶
70. Ms. McGinnis then spoke with Medical Services Director
Stroud, who informed her “that all officers are required to be
OC spray certified” and “that, had another MPD officer not
called him on Ms. McGinnis’s behalf, he would have fired her
already.” Id. ¶ 71. Director Stroud “further advised that once
Ms. McGinnis returned to full duty, she should ‘suck it up’ and
take the direct spray across the eyes.” Id. ¶ 72.
E. Ms. McGinnis is Terminated from Employment with the MPD.
On August 17, 2012, Sergeants Young and Butler drove Ms.
McGinnis to the MPD headquarters. See id. ¶ 75. Ms. McGinnis
asked Sergeant Young if she was being fired and he said that she
was; when she asked why, Sergeant Young indicated that he did
not know. See id. Upon arrival, Sergeant George Bernard gave Ms.
McGinnis a letter and asked her “if she knew why she was being
terminated.” Id. ¶¶ 76–77. When Ms. McGinnis responded that she
did not, Sergeant Bernard said that it was “because she lied to
the department about a medical condition.” Id. ¶ 77. The MPD,
Sergeant Bernard indicated, “was claiming it never knew about
her condition.” Id. ¶ 78.
7
Sergeant Bernard exited the room and left behind paperwork
that Sergeants Young and Butler began to read. See id. ¶ 80. Ms.
McGinnis also read the materials, which included “the medical
history form on which Ms. McGinnis disclosed her 2007 OC spray
injury” as well as an August 14, 2012 memorandum from the MPD’s
Director of Human Resources, Diana Haines-Walton, to the Chief
of Police (“the Haines-Walton Memo”). See id. ¶ 81. The Memo
stated that Ms. McGinnis: (1) “‘failed to disclose her severe
allergy to OC spray during the recruitment process’”; (2)
“‘deliberately and consciously made false statements to the
Department during the recruitment process’”; (3) “‘blatant[ly]
fail[ed] to truthfully and completely disclose information
during the recruitment process’”; (4) “did not disclose the
allergy during her physical examination”; and (5) “‘answered in
the negative’ on two medical certifications indicating that she
did not have any allergy to OC spray.” Id. ¶ 82 (alterations in
original). In addition to Sergeants Young and Butler, Ms.
McGinnis alleges that “[o]thers in the MPD and at the Academy
have become aware of the defamatory rationale for [her]
termination despite their having no legitimate business-related
reason to know” and that “[t]he defamatory Haines-Walton
Memorandum remains in [her] personnel file which is potentially
available to prospective employers or other government
officials.” Id. ¶¶ 102–03.
8
The full story of Ms. McGinnis’s termination remains unclear,
but she alleges that defendants Rosenthal, Petty, Stroud, and
Haines-Walton “conspired to terminate [her] under a false and
defamatory pretext” and that they “ignored clear evidence that
Ms. McGinnis was being truthful about her prior disclosures of
her medical condition.” Id. ¶¶ 93, 95. Ms. Haines-Walton
authored the allegedly defamatory memo, while defendants
Rosenthal, Petty, and Stroud allegedly “encouraged the District
to terminate [her] based on this defamatory pretext.” Id. ¶¶ 11,
81–82.
Ms. McGinnis was not provided with notice of the charges or an
opportunity to present her side of the story. See id. ¶ 100.
This, she alleges, is because the “MPD and the District
apparently either have no policy providing for such notice and
opportunity to be heard or have a policy, custom, usage or
practice of not providing such notice and opportunity when an
employee is being terminated for reasons that would affect his
or her reputation and/or stigmatize him or her.” Id. ¶ 122.
After her termination from the MPD, Ms. McGinnis “applied for
numerous positions in law enforcement, but has not been hired by
any law enforcement agency.” Id. ¶ 107.1 She attributes this to
1
Ms. McGinnis provided further detail about her job search in
her opposition brief. See Opp. at 6 & n.2. The Court does not
consider these allegations because “[i]t is axiomatic that a
complaint may not be amended by the briefs in opposition to a
9
the fact that, “[e]ach time she applies for a new position in
law enforcement, [she] is required to truthfully describe her
employment history and the reasons for her separation from
previous employers, including the defamatory rationale for her
termination by MPD.” Id. ¶ 105.
F. Procedural History
On August 15, 2013, Ms. McGinnis filed this lawsuit against
the District of Columbia, Lieutenant Ashley Rosenthal, Inspector
Alisa Petty, Lieutenant Gregory Stroud, and Diana Haines-Walton.
She alleged violations of her Fifth Amendment rights against the
individual defendants and the District, as well as claims for
intentional infliction of emotional distress and defamation
against the District. See Compl. ¶¶ 88–154. After the defendants
moved to dismiss the federal claims on the grounds that
plaintiff lacked a protected property interest in continued
employment, Defs.’ First Mot. to Dismiss, ECF No. 6, plaintiff
filed a consent motion for leave to file an amended complaint to
correct her complaint to allege a violation of her liberty
interest. See Mot. for Leave, ECF No. 9; First Am. Compl., ECF
No. 10.
On January 17, 2014, the defendants moved to dismiss
plaintiff’s Fifth Amendment claims or, in the alternative, for
motion to dismiss.” Arbitraje Casa de Cambio, S.A. de C.V. v.
U.S. Postal Serv., 297 F. Supp. 2d 165, 170 (D.D.C. 2003)
(quotation marks omitted).
10
summary judgment on those claims. See Defs.’ Mot. to Dismiss
(“Mot.”), ECF No. 13. Plaintiff filed her opposition brief on
February 18, 2014 and objected to the defendants’ request for
summary judgment as premature under Federal Rule of Civil
Procedure 56(d). See Opp. to Mot. (“Opp.”), ECF No. 15; Rule
56(d) Aff., ECF No. 15-1. The defendants filed their reply
brief, which indicated that they no longer request summary
judgment, on March 10, 2014. See Reply in Supp. of Mot.
(“Reply”), ECF No. 18. In July 2014, at the Court’s request, the
parties filed supplemental briefs addressing the D.C. Circuit’s
decision in McCormick v. District of Columbia, 752 F.3d 980
(D.C. Cir. 2014). See Pl.’s Suppl. Br., ECF No. 20; Defs.’
Suppl. Br., ECF No. 21.
II. 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). A complaint must
contain “a short and plain statement of the claim showing that
the pleader is entitled to relief, in order to give the
defendant fair notice of what the . . . claim is and the grounds
upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007) (quotation marks omitted). While detailed factual
allegations are not necessary, plaintiff must plead enough facts
to “raise a right to relief above the speculative level.” Id.
11
When ruling on a Rule 12(b)(6) motion, the Court may consider
“the facts alleged in the complaint, documents attached as
exhibits or incorporated by reference in the complaint, and
matters about which the Court may take judicial notice.”
Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002).
The Court must construe the complaint liberally in plaintiff’s
favor and grant plaintiff the benefit of all reasonable
inferences deriving from the complaint. Kowal v. MCI Commc’ns
Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). However, the Court
must not accept plaintiff’s inferences that are “unsupported by
the facts set out in the complaint.” Id. “[O]nly a complaint
that states a plausible claim for relief survives a motion to
dismiss.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
“Threadbare recitals of “the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Id.
III. Analysis
The Fifth Amendment provides that “[n]o person shall . . . be
deprived of life, liberty, or property without due process of
law.” U.S. Const. Amend. V. Ms. McGinnis asserts that the
defendants’ actions implicate the liberty interest protected by
that Amendment because they wrongly terminated her for lying on
her job application and provided her neither notice nor an
opportunity to contest the allegations.
12
As a general rule, “persons whose future employment prospects
have been impaired by government defamation ‘lack . . . any
constitutional protection for the interest in reputation.’”
Trifax Corp. v. District of Columbia, 314 F.3d 641, 643 (D.C.
Cir. 2003) (quoting Siegert v. Gilley, 500 U.S. 226, 234 (1991))
(alteration in original). This is especially true of at-will
employees, who may be “discharge[d] . . . at any time and for
any reason, or for no reason at all.” Kassem v. Wash Hosp. Ctr.,
513 F.3d 251, 254 (D.C. Cir. 2007); see also McCormick, 752 F.3d
at 987 (“Normally, one cannot be deprived unlawfully of
something to which one had no legally protected right before the
deprivation.”). There are, however, narrow exceptions to this
doctrine, drawn from the Supreme Court’s decision in Board of
Regents v. Roth, 408 U.S. 564 (1972). “A claim for deprivation
of a liberty interest without due process based on allegedly
defamatory statements of government officials . . . may proceed
on one of two theories: a ‘reputation-plus’ claim or a ‘stigma
or disability’ claim.” Fonville v. District of Columbia, No. 02-
2353, 2014 WL 1427780, at *7 (D.D.C. Apr. 14, 2014).
The reputation-plus theory is implicated when the government
makes a “charge against [the employee] that might seriously
damage his standing and associations in the community,” Roth,
408 U.S. at 573, and does so in connection with a termination or
other change in employment status. See O’Donnell v. Barry, 148
13
F.3d 1126, 1140 (D.C. Cir. 1998). “Although the conceptual basis
for reputation-plus claims is not fully clear, it presumably
rests on the fact that official criticism will carry much more
weight if the person criticized is at the same time demoted or
fired.” Id. The stigma theory relates to situations where a
government action “foreclosed [the employee’s] freedom to take
advantage of other employment opportunities.” Roth, 408 U.S. at
573. Stigma “does not depend on official speech, but on a
continuing stigma or disability arising from official action.”
O’Donnell, 148 F.3d at 1140.
Defendants argue that plaintiff’s Fifth Amendment claims must
be dismissed because she has failed to state a claim under
either theory. The individual defendants also argue that Ms.
McGinnis failed to allege facts connecting defendants Rosenthal,
Petty, and Stroud to the constitutional violation and that
defendant Haines-Walton is entitled to qualified immunity.
Finally, the District argues that plaintiff’s Fifth Amendment
claim against it should be dismissed for lack of a municipal
policy or custom connecting the District to any wrongdoing. The
Court first addresses plaintiff’s stigma theory and the
individual defendants’ arguments that they cannot be held liable
under that theory. Next, the Court addresses plaintiff’s
reputation-plus theory and the individual defendants’ arguments
against liability under that theory. Finally, the Court
14
addresses the District’s argument that it cannot be liable for
any constitutional violation because no municipal policy or
custom was the moving force behind the alleged violations.
A. Ms. McGinnis’s Stigma Theory Against the Individual
Defendants
A court faced with a claim for qualified immunity must
analyze: “(1) ‘whether a constitutional right would have been
violated on the facts alleged,’ and (2) ‘whether the right was
clearly established’ at the time of the violation.” Shaw v.
District of Columbia, 944 F. Supp. 2d 43, 54 (D.D.C. 2013)
(quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)). The Supreme
Court has given judges flexibility “to exercise their sound
discretion in deciding which of the two prongs . . . should be
addressed first in light of the circumstances in the particular
case at hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009).
Because only one individual defendant raises qualified immunity
and Ms. McGinnis’s claims against the individual defendants
raise the same legal issues as her claim against the District,
the Court addresses the constitutional question first, before
analyzing whether any right was clearly established.
1. Ms. McGinnis Alleged a Violation of Her Fifth
Amendment Right Under the Stigma Theory.
The stigma theory “provides a remedy where the terminating
employer imposes upon the discharged employee a stigma or other
disability that foreclosed the plaintiff’s freedom to take
15
advantage of other employment opportunities.” McCormick, 752
F.3d at 988 (quotation marks and alterations omitted). “[T]he
‘stigma’ claim, unlike the reputation-plus claim, ‘does not
depend on official speech’ but on a ‘stigma or disability
arising from official action.’” Id. (quoting O’Donnell, 148 F.3d
at 1140).
Defendants argue that Ms. McGinnis must allege active
publication by the government of the reasons for her termination
to state a claim under the stigma theory. See Mot. at 10–14;
Reply at 5–8. Although defendants argue that the D.C. Circuit’s
decision in McCormick supports their argument, Defs.’ Suppl.
Br., ECF No. 21, the opposite is true. In that case, a
correctional officer who was terminated for assaulting a
handcuffed inmate disputed the results of the investigation that
led to his termination. See McCormick, 752 F.3d at 982–83. He
based his stigma claim on allegations that his termination for
assaulting an inmate would preclude him from further employment
as a correctional officer because he would have to inform
prospective employers of it. See id. at 987.
The D.C. Circuit first noted that Mr. McCormick’s “factual
theory is that the appellees took the official act of firing
him” and “[h]e cannot obtain other employment in his chosen
field, therefore he has suffered stigma[, which] arises from his
having to tell prospective employers why he was fired.” Id. at
16
988. The Circuit then stated that “the only official act
committed by the defendants is the termination” and “[t]he
termination of an at-will employee is not sufficient to
establish the deprivation of protected liberty interests.” Id.
The Circuit went on to assert that “[t]he Supreme Court in
Bishop v. Wood effectively dispose[d] of McCormick’s claims.”
Id. (citation omitted).
While these passages appear at first glance to support the
defendants, the Circuit went on to note that, while Bishop may
dispose of a reputation-plus theory in these circumstances, Mr.
McCormick also asserted “in reliance on the stigma theory” an
actionable liberty interest “even though he was an at-will
employee and there was no government publication of derogatory
information about him.” Id. at 989. Indeed, the Circuit
emphasized that “Bishop v. Wood does not address this
understanding” and “does not dispose of this theory” and that
prior Circuit precedent regarding the stigma theory “discussed—
not communication by the government—but the plaintiff’s
remaining reasonable job opportunities in the field.” Id.
(citing O’Donnell, 148 F.3d at 1140–41). The Circuit then noted
that if the plaintiff “was as free as before to seek another
job,” he “plainly . . . had not made out a case that he was
broadly precluded from his chosen profession”:
17
Mr. McCormick, in contrast, cite[d] deposition
testimony [from corrections officials] to the effect
that he can never again be employed in the corrections
field and that therefore, his termination implicates
his liberty interest. Although that testimony is not
as compelling as Mr. McCormick suggests, it is
arguably sufficient to establish a genuine dispute as
to a material fact—namely whether the circumstances of
the termination had the broad effect of barring him
from further employment in his chosen profession.
Id. (citations, quotation marks, and alteration omitted).
Defendants’ reading of McCormick, therefore, is incorrect.
Affirmative publication by the government is not a necessary
element of a stigma claim so long as the plaintiff alleges why
the government action has the effect of precluding her from
future employment.
To survive a motion to dismiss, then, Ms. McGinnis must show
that her termination “has worked a change in [her] status under
law, either by (a) automatically excluding her from a definite
range of employment opportunities . . . or (b) broadly
precluding her from continuing in her chosen career.” Kartseva
v. Dep’t of State, 37 F.3d 1524, 1527 (D.C. Cir. 1994).
Automatic exclusion, which may arise, for example, through
“formal[] debar[ment],” Trifax Corp., 314 F.3d at 643, has not
been alleged. The question is thus whether plaintiff’s
termination for lying on her application will broadly preclude
her from obtaining future employment in law enforcement to the
point that it will “‘seriously affect[], if not destroy[]’ [her]
18
ability to pursue [her] chosen profession.” O’Donnell, 148 F.3d
at 1141 (quoting Kartseva, 37 F.3d at 1529). “[I]f [she] has
merely lost one position in her profession but is not foreclosed
from reentering the field, she has not carried her burden.”
Kartseva, 37 F.3d at 1529.
Alleging broad preclusion is not a mathematical exercise. Ms.
McGinnis need not plead a particular “duration of unemployment
[to] convert her stigma from implausible to plausible.” Campbell
v. District of Columbia, 972 F. Supp. 2d 38, 46 (D.D.C. 2013).
At a minimum, she must allege that she has applied for and been
rejected from other positions in her field. See Orange v.
District of Columbia, 59 F.3d 1267, 1275 (D.C. Cir. 1995)
(denying stigma claim where plaintiffs had not subsequently
applied for any similar jobs); Dave v. D.C. Metro. Police Dep’t,
926 F. Supp. 2d 247, 252 (D.D.C. 2013) (granting summary
judgment where “plaintiff has never sought other law enforcement
positions”). Relatedly, she cannot have obtained a similar job
after her termination. See O’Donnell, 148 F.3d at 1141 (former
Deputy Chief of Police in Washington, D.C. did not suffer stigma
where he obtained employment as Chief of Police in a small
town).
Difficulty obtaining a job in the field, while necessary, is
not sufficient because it “might easily be explained in other
ways.” Taylor v. Resolution Trust Corp., 56 F.3d 1497, 1507
19
(D.C. Cir. 1995). Ms. McGinnis must also allege that the
government action is at fault for the difficulty, or at least
placed a “significant roadblock” in her path. Payne v. District
of Columbia, 773 F. Supp. 2d 89, 96 (D.D.C. 2011). In McCormick,
for example, the plaintiff submitted “deposition testimony [by
correctional officials] to the effect that he can never again be
employed in the corrections field.” 752 F.3d at 989. At the
motion to dismiss stage, allegations that a termination
“denigrated the plaintiff’s professional competence and impugned
his personal reputation in such a fashion as to effectively put
a significant roadblock in his ability to obtain other
employment,” are sufficient. See Holman v. Williams, 436 F.
Supp. 2d 68, 80 (D.D.C. 2006).
Ms. McGinnis’s allegations are sufficient to state a claim.
She asserts that she has “applied for numerous positions in law
enforcement, but has not been hired by any law enforcement
agency.” First Am. Compl., ECF No. 10 ¶ 107. Ms. McGinnis
further alleges that the reason for her inability to obtain a
position is her termination: “Each time she applies for a new
position in law enforcement, [she] is required to truthfully
describe her employment history and the reasons for her
separation from previous employers, including the defamatory
rationale for her termination by MPD.” Id. ¶ 105. Although
defendants view this connection as attenuated, it is identical
20
to the connection recognized by the D.C. Circuit in McCormick.
See 752 F.3d at 989. This is sufficient at this stage to allege
that the MPD’s action placed “a significant roadblock” in her
path. See Payne, 773 F. Supp. 2d at 96. Moreover, Ms. McGinnis’s
prior experience, which included years as a police officer and
many awards, arguably supports her allegations that her failure
to obtain employment is related to the MPD’s action. See Alexis
v. District of Columbia, 44 F. Supp. 2d 331, 341–42 (D.D.C.
1999).
Defendants respond that “‘it is doubtful that the silent
actions of a single agency within a single municipal government
can have a sufficiently broad effect to alter an individual’s
legal rights to such a degree as to implicate a liberty
interest.’” Mot. at 12 (quoting Dave, 926 F. Supp. 2d at 252).
This may be true where the reason for an individual’s
termination cannot become known to any prospective employers.
See Dave, 926 F. Supp. 2d at 249 (even the plaintiff was unaware
of the reasons until after litigation began). Here, however, the
MPD’s silent actions were amplified because plaintiff must share
them with prospective employers in her field. See First Am.
Compl., ECF No. 10 ¶ 105. As McCormick demonstrates, a stigma
claim may stand where an agency’s silent actions will be
communicated to prospective employers and will mean that the
21
plaintiff “can never again be employed in the . . . field.” 752
F.3d at 989.
Discovery may reveal that the MPD’s silent actions remain
silent, or that plaintiff’s termination poses “nothing more than
a competitive disadvantage.” Mot. at 11. At this stage of
proceedings, however, the Court must accept Ms. McGinnis’s claim
that her termination and the government’s allegations of serious
dishonesty must be shared with future employers and that those
allegations implicate a core requirement of the law-enforcement
profession, such that she cannot obtain further employment in
the field. See First Am. Compl., ECF No. 10 ¶¶ 105, 107.
Accordingly, Ms. McGinnis has stated a Fifth Amendment claim
under the stigma theory.2
2. Ms. Haines-Walton is Not Entitled to Qualified
Immunity and Each Individual Defendant Participated in
the Constitutional Violation.
Having established that Ms. McGinnis alleged a violation of
her Fifth Amendment right, “[w]hat remains is to determine
whether . . . any of the individual defendants can be held
liable . . . under 42 U.S.C. § 1983.” Elkins v. District of
Columbia, 690 F.3d 554, 564 (D.C. Cir. 2012). Ms. McGinnis must
show “‘that each [one], through the official’s own individual
2
Ms. McGinnis properly alleged the second component of a due-
process claim—that she was not provided the process due to her,
Reeve Aleutian Airways Inc. v. United States, 982 F.2d 594, 598
(D.C. Cir. 1993)—by claiming that she received no process at
all. See First Am. Compl., ECF No. 10 ¶ 100.
22
actions, has violated the Constitution.’” Id. (quoting Iqbal,
556 U.S. at 676) (alteration in original). Moreover, a defendant
may be entitled to qualified immunity, which is “an immunity
from suit rather than a mere defense to liability.” Pearson, 555
U.S. at 231 (quotation marks omitted).
Government officials are entitled to qualified immunity
“‘insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known.’” Butera v. District of Columbia, 235 F.3d
637, 646 (D.C. Cir. 2001) (quoting Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982)). “Clearly established for purposes of
qualified immunity means that the contours of the right must be
sufficiently clear that a reasonable official would understand
what he is doing violates that right.” Shaw, 944 F. Supp. 2d at
54 (quotation marks omitted). Put another way, “existing
precedent must have placed the . . . constitutional question
beyond debate.” Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012)
(quotation marks omitted). This analysis “depends substantially
upon the level of generality at which the relevant [law] is to
be identified,” so a court must ensure that the right was
“‘clearly established’ in a more particularized . . . sense.”
Anderson v. Creighton, 483 U.S. 635, 639, 640 (1987). This is
not to say that an identical fact pattern must previously have
23
been adjudicated, but “in the light of pre-existing law the
unlawfulness must be apparent.” Id. at 640.
Ms. Haines-Walton contends that she is entitled to qualified
immunity. By contrast, defendants Rosenthal, Petty, and Stroud
did not raise qualified immunity, arguing only that Ms. McGinnis
failed to allege facts to support an inference that their “own
individual actions,” Iqbal, 556 U.S. at 676, caused any
constitutional violation.
a. Haines-Walton
There appears to be no dispute that Ms. Haines-Walton’s “own
individual actions,” id., caused the alleged constitutional
violation. She allegedly wrote the defamatory memorandum
memorializing the reasons for Ms. McGinnis’s termination and
participated in the “conspiracy” to terminate Ms. McGinnis for
those reasons. See First Am. Compl., ECF No. 10 ¶¶ 81–82, 93.
This is connected to the constitutional harm, which flows from
the act of terminating Ms. McGinnis for reasons that must be
shared with prospective employers and will preclude her from
employment in her field.
Ms. Haines-Walton alleges that she is entitled to qualified
immunity “because a reasonable officer in her position could not
have anticipated that recommending Plaintiff for termination
would implicate liberty interest violations.” Mot. at 16.
Specifically, she claims that she could not have anticipated
24
violating a constitutional right “because MPD did not make the
reasons . . . public” and any stigma claim “did not arise until
after Plaintiff was terminated.” Id. at 17. Plaintiff responds
that “[t]he ‘contours’ of Ms. McGinnis’s right to her
constitutional liberty interest” were clearly established
because “[t]he well-established and protected right in this case
is the opportunity to be heard before being slandered and
defamed.” Opp. at 23. Plaintiff defines the right at too high a
level of generality, so the Court examines the right at a more
specific level. See Anderson, 483 U.S. at 640.
To begin, it was clearly established that a stigma claim could
arise when a government action broadly precludes an employee
from further employment in her field. In Kartseva, the Circuit
made clear that a plaintiff could state such a claim when the
government action “does not have [a] binding effect, but
nevertheless has the broad effect of largely precluding [the
plaintiff] from pursuing her chosen career.” 37 F.3d at 1529
(emphasis in original). The D.C. Circuit further established
that such preclusion can be demonstrated where the government’s
action will “‘seriously affect[], if not destroy[]’ [her]
ability to pursue [her] chosen profession.” O’Donnell, 148 F.3d
at 1141 (quoting Kartseva, 37 F.3d at 1529); see also, e.g.,
Taylor, 56 F.3d at 1507; Payne, 773 F. Supp. 2d at 96; Holman,
436 F. Supp. 2d at 80.
25
The dispute is whether it was clearly established that a
government official could be held liable when the reason for
termination was not affirmatively disseminated to the public,
but must inevitably be shared with future employers. Although
the D.C. Circuit held as much in McCormick, that decision came
after the events underlying this case. Nonetheless, McCormick
built upon preexisting precedent within this Circuit making
clear that a government employee’s constitutional rights can be
violated by an action that will broadly preclude her from future
employment in her field, even if there is no formal publication.
The Supreme Court’s decision in Roth emphasized that a stigma
claim would arise from the government’s action “in declining to
re-employ the respondent,” when that action “imposed . . . a
stigma or other disability that foreclosed his freedom to take
advantage of other employment opportunities.” Roth, 408 U.S. at
573. This contrasted with a reputation-plus claim, which would
arise only from government speech. See id. Later, in Bishop v.
Wood, the Supreme Court found that a reputation-plus claim could
not stand where the statement “was not made public,” but did not
address the stigma theory. 426 U.S. 341, 348 (1976).
In a line of decisions, the D.C. Circuit established that the
stigma theory does not require publication. In Old Dominion
Dairy Products v. Secretary of Defense, it found a stigma claim
where the government’s determination that a contractor was
26
irresponsible and placement of “a written determination of
nonresponsibility” in the contractor’s file would be revealed to
future contracting officers “every time Old Dominion bid for a
contract.” 631 F.2d 953, 957, 963 (D.C. Cir. 1980). This
occurred because future contracting officers would inevitably
request information about the company’s past performance and
thereby learn of the determination. Id. at 375–77, 381. This
finding was repeatedly confirmed when, faced with stigma claims,
the D.C. Circuit did not analyze whether there was sufficiently
broad publication, but instead analyzed whether the plaintiff
had alleged or proven sufficiently broad preclusion from her
field of employment. See Orange, 59 F.3d at 1274–75; Kartseva,
37 F.3d at 1529–30; Taylor, 56 F.3d at 1501, 1506–07; Mosrie v.
Barry, 718 F.2d 1151, 1156 (D.C. Cir. 1983).
Any doubt about the viability of a stigma claim in the absence
of publication was resolved in O’Donnell v. Barry, where the
D.C. Circuit denied a plaintiff’s reputation-plus claim in part
for insufficient publication. See 148 F.3d at 1140. The Court
did not rely on this rationale to dispose of the plaintiff’s
stigma claim; instead, it found that because the plaintiff had
found a new job as a Chief of Police in a small town, he could
not prove any foreclosure from employment. Id. at 1141. In so
holding, the D.C. Circuit noted that a stigma claim “differs
from [a reputation-plus claim] in that it does not depend on
27
official speech, but on a continuing stigma or disability
arising from official action.” Id. at 1140.
A 2011 decision by another Judge of this Court reaffirmed that
a plaintiff may state a claim under the stigma theory without
publication by the government. See Okpala v. District of
Columbia, 819 F. Supp. 2d 13 (D.D.C. 2011). The Court held that:
[D.C. Circuit precedent does not] stand[] for the
proposition that a liberty interest claim based on
defamation is actionable solely when outside
publication occurs when proceeding under the ‘stigma
or disability’ theory of liability. Indeed, valid
liberty interest due process claims under the ‘stigma
or disability’ theory were stated in [prior D.C.
Circuit decisions] despite the fact that the
defamatory statements were not published outside of
government.
Id. at 17 (citations omitted). Although the D.C. Circuit in 2012
had not yet decided a case involving the precise facts at issue
in this case, the line of precedent making clear in a variety of
contexts that stigma claims do not require publication
“preclude[s] a viable ‘head-in-the-sand’ defense.” Cox v.
Roskelley, 359 F.3d 1105, 1113 (9th Cir. 2004).
Having found that the particular constitutional right was
clearly established, the Court must also determine whether Ms.
Haines-Walton should have been aware that her conduct violated
that right. See Elkins, 690 F.3d at 568. To avoid such a
finding, she relies on Holman v. Williams, which found qualified
immunity under a stigma theory where “[t]he official action in
28
question—plaintiff’s termination—was itself not unlawful” and
“the ‘disability’ to plaintiff (his inability to find other
legal work) did not arise until after plaintiff had been fired.”
436 F. Supp. 2d at 82. Ms. Haines-Walton relies on this
reasoning to seek qualified immunity, Mot. at 17–18, but ignores
the footnote that was attached to the quoted sentence, which
states that “[p]laintiff makes no allegation that the Mayor or
any other responsible official could have foreseen the effect of
plaintiff’s termination and the [public] statements . . . on
plaintiff’s subsequent employment prospects” and notes that the
Court did not “find it reasonable to infer such foreseeability
from the facts alleged.” Holman, 436 F. Supp. 2d at 82 n.11.
Holman therefore stands for the proposition that an official
is entitled to qualified immunity when it would not have been
foreseeable that terminating someone could have a broadly
preclusive effect in the future. This flows from the general
purpose of qualified immunity: To ensure that government
officials are held liable only when they “violate clearly
established . . . rights of which a reasonable person would have
known.” Pearson, 555 U.S. at 231 (emphasis added). By contrast,
when such preclusion is foreseeable, refusing to hold a
government official liable would appear to preclude anyone from
bringing a stigma-theory claim against an individual defendant.
29
In Holman, it was not foreseeable that statements which
“denigrated the plaintiff’s professional competence and impugned
his personal reputation” and a published article indicating that
the plaintiff had been fired for reasons related to “job
performance” could have broadly precluded the plaintiff from
employment in his field. Id. 79–82. By contrast, accepting Ms.
McGinnis’s allegations as true, it would have been foreseeable
to Ms. Haines-Walton that termination for lying about a medical
condition would broadly preclude a police officer from obtaining
employment. Plaintiff notes that in Tygrett v. Barry, the
Circuit cited approvingly a statement of a Judge of this Court
that a “good reputation for truthfulness is essential to the
ability of a police officer to perform efficiently and
effectively his many testimonial duties.” 627 F.2d 1279, 1285
(D.C. Cir. 1980). That Ms. Haines-Walton, as Director of Human
Resources for the MPD, would have been aware of the importance
of truthfulness and of plaintiff’s likely need to share the
reasons for her termination with prospective employers is not
implausible. It thus could have been foreseeable, on the facts
alleged, that Ms. Haines-Walton’s actions could broadly preclude
Ms. McGinnis from employment in law enforcement. Accordingly,
plaintiff’s claim against Defendant Haines-Walton may proceed.
b. Rosenthal, Petty, and Stroud
30
According to Ms. McGinnis’s allegations, Lieutenant Rosenthal,
Inspector Petty, and Director Stroud participated in the
“conspiracy” to terminate her for defamatory reasons and
“encouraged the District to terminate [her] based on [the]
defamatory pretext.” First Am. Compl., ECF No. 10 ¶¶ 11, 93.
Moreover, Ms. McGinnis alleged additional facts connecting each
of them to events surrounding the termination. See id. ¶¶ 49–50,
57, 60–64, 70–72. As discussed above, participation in the
decision to terminate Ms. McGinnis for allegedly defamatory
reasons is sufficient to show that defendants Rosenthal, Petty,
and Stroud caused the constitutional harm under the stigma
theory by “the official’s own individual actions.” Iqbal, 556
U.S. at 676. Because defendants Rosenthal, Petty, and Stroud did
not raise qualified immunity, the Court does not address whether
they may be entitled to it at this stage of proceedings.
B. Ms. McGinnis’s Reputation-Plus Theory Against the
Individual Defendants.
The stigma and reputation-plus theories appear to be two sides
of the same coin; Ms. McGinnis need only state a claim under one
theory for her Fifth Amendment claim to go forward. See
Evangelou v. District of Columbia, 901 F. Supp. 2d 159, 172
(D.D.C. 2012) (noting, where a plaintiff “appear[ed] to
conflate” the reputation-plus and stigma theories, that “[t]o
succeed on the merits of his claim, he will need to prove one or
31
the other”); Okpala, 819 F. Supp. 2d at 16 (“[w]hen pursuing [a
Fifth Amendment claim], Plaintiff may proceed under one of two
theories”). Although the Court has already found that Ms.
McGinnis’s claims against the individual defendants may proceed
under the stigma theory, to ensure completeness, the Court also
addresses whether her claims may proceed under the reputation-
plus theory.
1. Ms. McGinnis Alleged a Violation of Her Fifth
Amendment Right Under the Reputation-Plus Theory.
The reputation-plus theory addresses the harm that arises from
government defamation in conjunction with a “change in legal
status.” Mosrie, 718 F.2d at 1161. “This theory makes the
termination actionable only where the terminating employer has
disseminated the reasons for the termination and such
dissemination is defamatory.” McCormick, 752 F.3d at 988. The
reasons, moreover, must not “pertain[] solely to plaintiff’s job
performance” because “dismissal for ‘unsatisfactory job
performance . . . does not carry with it the sort of opprobrium
sufficient to constitute a deprivation of liberty.’” Holman, 436
F. Supp. 2d at 79 (quoting Harrison v. Bowen, 815 F.2d 1505,
1518 (D.C. Cir. 1987)).
It is undisputed that plaintiff’s termination “is an example
of a ‘paradigmatic’ status change” for purposes of a reputation-
plus claim. See Doe v. Cheney, 885 F.2d 898, 910 (D.C. Cir.
32
1989). It is also well-established that “accusations of
dishonesty” may create reputation-damaging harm “of
Constitutional proportions.” Alexis, 44 F. Supp. 2d at 339. The
parties dispute whether the reasons for Ms. McGinnis’s
termination were disseminated. Plaintiff claims that they were,
in two ways: (1) through the placement of the Haines-Walton Memo
in her personnel file, “which is potentially available to
prospective employers or other government officials”; and (2)
through publication to MPD officers, including Sergeants Butler
and Young, who were allowed to read her personnel file, and
“[o]thers in the MPD and at the Academy[, who] have become aware
of the defamatory rationale for [her] termination despite their
having no legitimate business-related reason to know.” First Am.
Compl., ECF No. 10 ¶¶ 80, 102–03. Defendants respond that the
memo cannot be made available to anyone pursuant to D.C. law,
and that any dissemination to members of the MPD is not
publication for purposes of a reputation-plus claim. See Reply
at 8–12.
Plaintiff’s first theory—that the placement of the Haines-
Walton Memo in her personnel file is sufficient publication
because the file may be available to prospective employers—
implicates a long-running split among the Circuits.3 The D.C.
3
Compare Burton v. Town of Littleton, 426 F.3d 9, 15 n.5, 17
(1st Cir. 2005) (requiring proof that reputation-damaging
33
Circuit previously took a side, indicating that placement of a
defamatory statement in a personnel file that may be available
to elements of the public was enough for a reputation-plus
claim. See Mazaleski v. Treusdell, 562 F.2d 701, 713 (D.C. Cir.
1977) (publication was properly alleged where statement was
placed in a personnel file, in light of a rule permitting
“limited information [from a personnel file] to be provided
prospective employers upon inquiry”). Subsequently, in Doe v.
Department of Justice, the Circuit found that “[t]he ‘public
disclosure’ requirement would also be satisfied if the [agency]
placed [a] termination memorandum in [a plaintiff’s] personnel
file and made that file available, even on a limited basis, to
prospective employers or government officials.” 753 F.2d 1092,
1113 n.24 (D.C. Cir. 1985); see also Brandt, 820 F.2d at 45
(citing Doe as an example of a court “conclud[ing] that the
public disclosure requirement has been satisfied where the
stigmatizing charges are placed in the discharged employee’s
statement in personnel file has already been disseminated to the
public), Kocher v. Larksville Borough, 548 F. App’x 813, 820–21
(3d Cir. 2013) (same), Johnson v. Martin, 943 F.2d 15, 16–17
(7th Cir. 1991) (same), and Pollock v. Baxter Manor Nursing
Home, 706 F.2d 236, 241–42 (8th Cir. 1983) (same), with Cox v.
Roskelley, 359 F.3d 1105, 1112 (9th Cir. 2004) (requiring only
that the personnel file could be viewed by the public), Bailey
v. Kirk, 777 F.2d 567, 580 n.18 (10th Cir. 1985) (same), Buxton
v. City of Plant City, 871 F.2d 1037, 1045–46 (11th Cir. 1989)
(same), Brandt v. Bd. of Coop. Educ. Servs., 820 F.2d 41, 44–45
(2d Cir. 1987) (requiring a likelihood that file will be viewed
by the public), and Sciolino v. City of Newport News, 480 F.3d
642, 649 (4th Cir. 2007) (same).
34
personnel file and are likely to be disclosed to prospective
employers”). In reliance on these decisions, one Judge of this
Court recently found that an “allegation that there is negative
information injuring [a plaintiff’s] reputation in his file that
is publicly available to future employers states a reputation-
plus claim [when that information] consists of the reasons for
his termination.” Peter B v. CIA, 620 F. Supp. 2d 58, 72 (D.D.C.
2009).
Two other Judges of this Court, however, have concluded that
this understanding has been undermined by subsequent
developments. See Dave, 926 F. Supp. 2d at 250–51; De Sousa v.
Dep’t of State, 840 F. Supp. 2d 92, 110 (D.D.C. 2012). Those
decisions note that the D.C. Circuit has emphasized the need for
allegations or proof “that the government has disseminated the
cause of his termination.” U.S. Information Agency v. Krc, 905
F.2d 389, 398 (D.C. Cir. 1990); see also Doe v. Cheney, 885 F.2d
at 910 (claim failed because the agency “did not disseminate
publicly any of the information”). Indeed, the D.C. Circuit has
held that “injury to reputation cannot occur in the absence of
public disclosure of the allegedly damaging statements.” Orange,
59 F.3d at 1274. None of these D.C. Circuit decisions, however,
involved the placement of reputation-damaging information in a
publicly available personnel file.
35
The Court therefore follows the decision in Peter B and the
D.C. Circuit’s decisions in Doe and Mazaleski, which appear to
be the only D.C. Circuit decisions to have addressed whether a
statement is published when it is placed in a public personnel
file. The Circuit’s more general description of the publication
requirement did not clearly displace those earlier decisions and
it appears that the government’s act of placing a statement in a
publicly available personnel file would be “publication” within
the meaning of those decisions. See Krc, 905 F.2d at 398 (a
plaintiff must allege “that the government has disseminated the
cause of his termination”). Accordingly, if Ms. McGinnis’s
personnel file is available to future employers, she has stated
a reputation-plus claim.
Defendants contend that the file cannot be made available to
anyone, so there is no possible risk of future publication. They
initially relied upon a declaration from Ms. Haines-Walton, but
such evidence is unhelpful to the resolution of a motion to
dismiss. See Mot. at 7–8 (citing Haines-Walton Decl., ECF No.
13-1 ¶¶ 6–7). Defendants shifted gears in their reply brief,
when they cited a District of Columbia regulation. See Reply at
10–12. The Court is skeptical of defendants’ request that it
consider this argument, which was not mentioned until their
reply brief. Indeed, the D.C. Circuit has noted that “district
courts, like this court, generally deem arguments made only in
36
reply briefs to be forfeited.” MBI Grp., Inc. v. Credit Foncier
Du Cameroun, 616 F.3d 568, 575 (D.C. Cir. 2010) (quotation marks
omitted). Moreover, the cited regulations appear to provide
contradictory guidance. They prohibit disclosure to a
“prospective employer” of “[t]he reason for [an employee’s]
separation . . . without the prior written consent of the data
subject.” D.C. Mun. Regs. Tit. vi § 3113.3 (2014). The
regulations subsequently state that “[i]nformation from the
Official Personnel Folder may be disclosed to a prospective
District or Federal Government employer.” Id. § 3113.7.
These related concerns, that defendants did not mention these
regulations until their reply brief and failed to explain the
potentially contradictory nature of the regulations, prevent the
Court from holding at this stage of proceedings that Ms.
McGinnis’s personnel file is not available to any member of the
public. See Mazaleski, 562 F.2d at 713 (“In view of this
apparent inconsistency [between a regulation keeping personnel
files secret and another permitting disclosure to prospective
employers] and the lack of any further explanation by the
parties, we cannot now conclude that the reasons for [the
plaintiff’s] termination will remain confidential.)”. The Court
must therefore accept Ms. McGinnis’s allegation that the file is
public. See First Am. Compl., ECF No. 10 ¶ 103. Accordingly, Ms.
McGinnis has stated a Fifth Amendment claim under the
37
reputation-plus theory on the basis of the presence of the memo
in her personnel file, which is allegedly available to
prospective employers.4
2. Ms. Haines-Walton is Entitled to Qualified Immunity
and the Other Individual Defendants Did Not
Participate in the Constitutional Violation.
Having established that Ms. McGinnis sufficiently alleged a
violation of her Fifth Amendment right under the reputation-plus
theory, Ms. McGinnis must show “‘that each [individual
defendant], through the official’s own individual actions, has
violated the Constitution.’” Elkins, 690 F.3d at 564 (quoting
Iqbal, 556 U.S. at 676). Moreover, individual defendants may be
entitled to qualified immunity, “‘insofar as their conduct does
not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.’” Butera,
235 F.3d at 646 (quoting Harlow, 457 U.S. at 818).
Ms. Haines-Walton contends that, even if plaintiff has alleged
her participation in the violation of a Fifth Amendment right,
4
Because Ms. McGinnis has stated a reputation-plus theory on
this basis, the Court declines to address her alternative
argument that she has also stated a reputation-plus theory due
to the fact that “[o]thers in the MPD and at the Academy have
become aware of the defamatory rationale for [her] termination
despite their having no legitimate business-related reason to
know.” First Am. Compl., ECF No. 10 ¶ 102. Addressing this
alternate dispute at this stage of proceedings would not affect
her claims against any individual defendant because she pled no
facts to connect any of the individual defendants’ “own
individual actions,” Iqbal, 556 U.S. at 676, to any
dissemination of the memo to any MPD or Academy official.
38
she is entitled to qualified immunity. Defendants Rosenthal,
Petty, and Stroud did not raise qualified immunity in their
motion to dismiss, arguing only that Ms. McGinnis failed to
allege facts to support an inference that they caused any
constitutional violation.
Ms. McGinnis has failed to connect defendants Rosenthal,
Petty, and Stroud to the reputation-plus violation through the
placement of the Haines-Walton Memo in her personnel file. None
of those defendants are alleged to have written the memo, placed
it in her file, or made it available to anyone. Ms. McGinnis
has, however, alleged sufficient facts to connect Ms. Haines-
Walton to that action by claiming that Ms. Haines-Walton wrote
the memo. The Court must therefore address whether Ms. Haines-
Walton is entitled to qualified immunity for that action.
In the wake of Roth and its follow-on cases, it is “clearly
established that when the government terminates a public
employee and makes false or substantially inaccurate public
charges or statements that stigmatize the employee, that
employee’s liberty interest is implicated.” McMath v. City of
Gary, 976 F.2d 1026, 1031 (7th Cir. 1992); see also Mosrie, 718
F.2d at 1161. At the time of the actions at issue in this
lawsuit, it was clearly established that termination was “a
‘paradigmatic’ status change” triggering this right, Doe v.
Cheney, 885 F.2d at 910, and that “accusations of dishonesty”
39
could cause reputation-damaging harm “of Constitutional
proportions.” Alexis, 44 F. Supp. 2d at 339; see also Harrison,
815 F.2d at 1518. The question is whether it was clearly
established that Ms. Haines-Walton could publicize those charges
by writing them in a memo that was placed in Ms. McGinnis’s
personnel file.
The precedent within this Circuit on this precise question is
conflicted. Two D.C. Circuit decisions seem to establish that
placement of reputation-damaging statements in a personnel file
that could be viewed by the public is sufficient publication.
See Doe, 753 F.2d at 1113 n.24; Mazaleski, 562 F.2d at 713. This
precedent is arguably undermined by subsequent D.C. Circuit
decisions, which state that “injury to reputation cannot occur
in the absence of public disclosure of the allegedly damaging
statements.” Orange, 59 F.3d at 1274. In reliance on similar
D.C. Circuit decisions, two Judges of this Court concluded that
a plaintiff cannot state a reputation-plus claim merely by
alleging that the reasons for her termination are publicly
available in a personnel file. See Dave, 926 F. Supp. 2d at 250–
51; De Sousa, 840 F. Supp. 2d at 110. Although the Court holds
that a reputation-plus claim may be stated in this manner, the
fact that district judges have come to differing conclusions
means that it cannot be said that “existing precedent . . .
ha[s] placed the . . . constitutional question beyond debate.”
40
Reichle, 132 S. Ct. at 2093 (quotation marks omitted).
Accordingly, under the reputation-plus theory, Ms. Haines-Walton
is entitled to qualified immunity with respect to the placement
of the Haines-Walton Memo in Ms. McGinnis’s personnel file.
C. Ms. McGinnis’s Claim Against the District
Ms. McGinnis’s claim against the District relies on the same
theories as her claims against the individual defendants. The
Court has already held that Ms. McGinnis stated a claim under
both the stigma and reputation-plus theories. See supra Parts
III.A–B. In order for the District to be liable for those
violations, it “must have acted in accordance with a government
policy or custom, whether made by its lawmakers or by those
whose edicts or acts may fairly be said to represent official
policy.” Yancey v. District of Columbia, 991 F. Supp. 2d 171,
179 (D.D.C. 2013) (quotation marks omitted). The policy,
moreover, must have been “the moving force behind the
constitutional violation.” City of Canton v. Harris, 489 U.S.
378, 389 (1989) (quotation marks and alterations omitted).
Plaintiff alleges the existence of two policies, each of which
she claims was a moving force behind the constitutional
violation. See First Am. Compl., ECF No. 10 ¶¶ 112–26. First,
she asserts that the OC spray training at the MPD Academy was
done incorrectly—recruits were sprayed directly in the eyes—
pursuant to a District policy or custom (“the OC Spray Policy”).
41
See id. ¶¶ 112–20. Second, Ms. McGinnis alleges that the MPD has
a policy of not providing notice and a hearing to individuals
fired for reputation-damaging or stigmatizing reasons (“the
Hearing Policy”). See id. ¶¶ 121–26.
The District argues that it cannot be held liable because
plaintiff has not alleged a sufficient causal connection between
the OC Spray Policy and any constitutional violation. See Mot.
at 18–20. Nowhere in its motion did the District address
plaintiff’s allegations regarding the Hearing Policy and its
causal connection to the constitutional violation. Moreover,
even though the plaintiff discussed the Hearing Policy in her
opposition brief, Opp. at 17–18, the District did not respond in
its reply brief. Because the District failed to address these
allegations in its motion “and fails to respond to Plaintiff’s
point in its Reply, the Court will deem it abandoned at least
for now.” Ashraf-Hassan v. Embassy of France, 878 F. Supp. 2d
164, 173–74 (D.D.C. 2012); see also Lewis v. United States, No.
90-991, 1990 WL 179930, at *2 (D.D.C. Oct. 29, 1990); cf.
Herbert v. Nat’l Acad. of Sciences, 974 F.2d 192, 196 (D.C. Cir.
1992) (noting that courts decline to consider arguments newly
raised in a reply brief “given our dependence as an Article III
court on the adversarial process for sharpening the issues for
decision”). Accordingly, for the purposes of this motion, the
Court assumes that plaintiff has adequately alleged the
42
existence of the Hearing Policy and its connection to the
constitutional violation. This is sufficient to state a claim
against the District.
IV. Conclusion
For the foregoing reasons, the Court hereby DENIES defendants’
motion. An appropriate Order accompanies this Memorandum
Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
August 28, 2014
43