Lattisaw v. District of Columbia

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
JOSEPH W. LATTISAW, )
)
Plaintiff, )
)
v. ) Civil Action No. 13-cv-0762 (KBJ)
)
DISTRICT OF COLUMBIA, et al., )
)
)
Defendants. )
)
MEMORANDUM OPINION
Pro se Plaintiff Joseph W. Lattisaw was employed for 16 years as a police officer
with the District of Columbia Metropolitan Police Department (“MPD”) until his
retirement on mental health grounds in September of 2006. Lattisaw, an African
American man, has filed this action against the MPD, the District of Columbia, the D.C.
Police and Fire Clinic, and the D.C. Police and Fireman’s Retirement and Relief Board
(collectively, “Defendants”), claiming that Defendants retaliated against him in various
ways—up to and including forcing him to retire—because Lattisaw filed a sexual
harassment complaint against a superior officer in 2002. Specifically, Lattisaw’s
amended complaint contains eight counts that allege retaliation in violation of Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”) (Counts I–IV);
retaliation with respect to making and enforcing contracts in violation of 42 U.S.C.
§ 1981 (“Section 1981”) (Count I); deprivation of civil rights in violation of 42 U.S.C.
§ 1983 (“Section 1983”) (Count II); conspiracy to interfere with civil rights and the
failure to prevent such conspiracy in violation of 42 U.S.C. §§ 1985 and 1986 (“Section
1985” and “Section 1986”) (Counts III and IV); retaliation in violation of the District of
Columbia Human Rights Act, D.C. Code § 2-1401.01 et seq. (“DCHRA”) (Count V);
and defamation, negligent infliction of emotional distress, and intentional infliction of
emotional distress in violation of D.C. common law (Counts VI, VII, and VIII,
respectively). (See Am. Compl., ECF No. 3, ¶¶ 241–69.)
Before this Court at present is Defendants’ motion to dismiss Lattisaw’s
amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to
state a claim upon which relief can be granted. (See Defs.’ Mot. to Dismiss (“Defs.’
Mot.”), ECF No. 6, at 1.) 1 Defendants contend, inter alia, that the District of Columbia
is the only proper defendant in this action, that Lattisaw’s federal and state law claims
are untimely, and that his state law claims are further barred under principles of res
judicata. (See Defs.’ Mem. in Supp. of Defs.’ Mot. (“Defs.’ Br.”), ECF No. 6-1, at 1–
2.) As explained fully below, this Court finds that Lattisaw’s Title VII, Section 1981,
and Section 1983 claims are conclusively time-barred, and that Lattisaw has failed to
meet the relevant legal standards for stating a claim under either Section 1985 or
Section 1986. Lattisaw’s federal claims are thus subject to dismissal, and in the
absence of any claim over which it has original jurisdiction, this Court declines to
exercise supplemental jurisdiction over the remaining state law claims. Consequently,
this Court will GRANT Defendants’ motion, and Lattisaw’s amended complaint will be
DISMISSED in its entirety. A separate order consistent with this memorandum opinion
will follow.
1
Page numbers throughout this memorandum opinion refer to those that the Court’s electronic filing
system assigns.
2
I. BACKGROUND
The following facts are gleaned from Lattisaw’s amended complaint and from
two memoranda he filed in opposition to Defendants’ motion to dismiss. (See Pl.’s
Opp’n to Defs.’ Mot. to Dismiss (“Pl.’s Opp’n”), ECF No. 8; Pl.’s Reply to Def.’s
Reply to Pl.’s Opp’n, ECF No. 10.) See also Fennell v. AARP, 770 F. Supp. 2d 118,
121 (D.D.C. 2011) (“[W]here the non-movant is proceeding pro se and has filed
multiple submissions in opposition to the motion to dismiss, the district court should
endeavor to read the party’s filings together and as a whole.” (citing Richardson v.
United States, 193 F.3d 545, 548 (D.C. Cir. 1999))). Lattisaw’s amended complaint—
which totals 63 pages and contains nearly 300 paragraphs—provides numerous
examples of conduct related to Lattisaw’s employment that he deems discriminatory
and retaliatory. However, three events lie at the heart of Lattisaw’s myriad allegations:
an alleged incident of sexual harassment on September 15, 2002; the purported
alteration and posting of a confidential injury report on or about October 11, 2002; and
Lattisaw’s allegedly involuntary retirement on September 6, 2006.
A. The Alleged Factual Bases For Lattisaw’s Claims
With respect to the initial harassment incident, Lattisaw alleges that a
supervising officer named Lieutenant Francis Allman made a sexually explicit comment
to and regarding Lattisaw on September 15, 2002, while both officers were on duty.
(See, e.g., Am. Compl. ¶ 227 (stating that “an official made an unwanted pass at
[Lattisaw], in the bathroom, and while on duty”); see also id. ¶¶ 23, 26 (naming
Allman).) 2 According to the amended complaint, Lattisaw then filed an internal
2
In prior litigation in the Superior Court of the District of Columbia, Lattisaw alleged that Allman
stood behind him “in the men’s room of the police station where he was on duty” and “said [to
3
complaint with the MPD against Allman. (See id. ¶¶ 12, 20.) Lattisaw also appears to
have filed at least one work-related injury report—known as a “PD Form 42” report—
claiming that he suffered an injury or illness as a result of Allman’s comments. (See id.
¶¶ 23, 25, 26, 30.) After filing the injury report, Lattisaw alleges that he was placed on
sick leave and that he began to see both a D.C. Police and Fire Clinic (“PFC”) therapist
and a PFC psychiatrist for treatment and medication. (See id. ¶¶ 19–20.)
Lattisaw claims that he returned to full duty a few weeks later, with the PFC’s
approval. (See id. ¶¶ 19–20.) However, upon his return to full duty, Lattisaw alleges
that Sergeant J.D. Harp and others subjected Lattisaw to “retaliatory incidents [that]
were directed towards him, for the internal complaint he had brought against” Allman.
(Id. ¶ 20.) 3 Lattisaw states that events such as these, “along with the first incident . . .
began to interfere with [his] performance[,]” and so, on October 8, 2002, Lattisaw
“prepared a second PD 42 injury/illness report, . . . hand delivered it to Sgt. Harp[,] . . .
[and] then [reported] to the PFC where he was [again] placed on sick leave.” (Id. ¶ 23.)
The second pivotal event that Lattisaw’s amended complaint relates took place a
few days later, when—while still on sick leave—Lattisaw learned that an altered copy
of one of his injury reports had been posted in the station locker room, and that the
narrative section describing the incident with Allman had been changed to depict
Lattisaw as the aggressor and Allman as the victim. (See id. ¶ 26.) Lattisaw remained
Lattisaw], ‘You have a fine a[**] there, Officer.’” Lattisaw v. District of Columbia, 905 A.2d 790, 791
(D.C. 2006).
3
For example, Lattisaw states that on October 8, 2002, Harp, a Caucasian man who was friends with
Allman (see Am. Compl. ¶¶ 21, 23), “singl[ed Lattisaw] out [during inspection] for wearing a
bulletproof vest on the outside of his uniform[,]” and then, even after Lattisaw had informed Harp that
he had “waiver[s] for wearing the vest . . . [and] for not riding inside of a transport vehicle[,]” Harp
nonetheless ordered Lattisaw to ride in a transport vehicle (id. ¶ 21).
4
on sick leave and, in November of 2002, PFC medical personnel diagnosed Lattisaw
with “a neuropsychiatric illness” (id. ¶ 29)—which Lattisaw characterizes as
“depression” and/or “PTSD” (id. ¶ 27)—resulting from “the workplace incident” with
Allman (id. ¶ 29; see also id. ¶ 35). Lattisaw alleges that PFC Director of Medical
Services Ira Stohlman initially classified Lattisaw’s injury as one that he incurred in the
performance of duty, meaning that Lattisaw was eligible to claim certain benefits and
compensation as a result. (See id. ¶ 32.)
According to the amended complaint, Lattisaw did not return to full duty until
March 20, 2004 (see id. ¶ 79), at which point Defendants allegedly continued to
retaliate against him. (See, e.g., id. ¶¶ 80–85 (describing delay in promotion); id.
¶¶ 92–93 (describing abrupt transfer to new district and verbal altercation with new
supervisor).) In particular, Lattisaw claims that in late June of 2004, Stohlman said to
him, “You are going to get everything you deserve” (id. ¶ 94 (emphasis omitted)), and
then, on July 16, 2004, Stohlman reclassified Lattisaw’s illness as a non-performance-
of-duty injury (id. ¶ 95). Stohlman’s purported reason for the reclassification was that
the incident with Allman did not qualify as “a ‘critical incident’” under applicable
“stress protocol” regulations, and thus could not result in a performance-of-duty injury.
(Id. ¶ 104; see also id. ¶ 95.) Lattisaw alleges that this reclassification eventually led
the MPD to order the PFC to stop treating Lattisaw for depression in 2005. (See
id. ¶ 103.)
The amended complaint contains relatively few factual allegations with respect
to Lattisaw’s allegedly involuntary retirement—the third pivotal event—but certain
details are clearly stated. At some point after 2002, the PFC purportedly recommended
5
Lattisaw for retirement, stating that his illness “was of a permanent nature and that h[e]
would never be able to return to a full duty status.” (Id. ¶ 233; see also id. ¶ 185.) The
D.C. Police and Fireman’s Retirement and Relief Board (“PFRRB”) instructed Lattisaw
to appear at a retirement hearing scheduled for April 20, 2006, but “the hearing was
tempor[arily] suspended” due to Lattisaw’s poor health. (Id. ¶ 111.) The amended
complaint does not specify whether or when a rescheduled hearing took place, but it
does allege that the PFRRB “involuntarily retired” Lattisaw on mental health grounds
on September 6, 2006. (Id. ¶ 114.) A subsequent appeal of the PFRRB’s decision to
the D.C. Court of Appeals apparently resulted in partial remand to the PFRRB on the
issue of Lattisaw’s retirement benefits (see id. ¶¶ 119–21), and on January 29, 2009, the
PFRRB allegedly determined that “there was overwhelming evidence in the record to
support the[] conclusion that [Lattisaw’s] injury was the result of work place sexual
harassment” (id. ¶ 126). However, Lattisaw alleges that “he never received any
additional benefits” as a result of this determination. (See Pl.’s Opp’n at 11.)
B. Procedural History
1. Litigation In D.C. Superior Court
On September 3, 2003, while Lattisaw was still an employee of the MPD,
Lattisaw and his wife filed a civil action against the District of Columbia in D.C.
Superior Court, claiming defamation, negligent infliction of emotional distress, and loss
of consortium in connection with the MPD’s alleged posting of the altered injury report.
(See Am. Compl. ¶ 53.) See also Lattisaw v. District of Columbia (“Lattisaw I”), 905
A.2d 790, 792 (D.C. 2006) (describing Lattisaw’s Superior Court complaint). The trial
court dismissed Lattisaw’s complaint for failure to exhaust available administrative
remedies as required under the Comprehensive Merit Personnel Act, D.C. Code § 1-
6
606.01 et seq. (“CMPA”), and denied Lattisaw’s motion for reconsideration. (See Am.
Compl. ¶¶ 58–59.) See also Lattisaw I, 905 A.2d at 791, 792. Lattisaw and his wife
appealed, and the D.C. Court of Appeals affirmed the Superior Court’s ruling, holding
that Lattisaw was required to submit a grievance to the MPD regarding the posting of
the altered injury report before he could file suit in Superior Court. See Lattisaw I, 905
A.2d at 793–95.
2. Relevant Administrative Charges
Lattisaw also purportedly filed, or attempted to file, administrative charges with
both the Equal Employment Opportunity Commission (“EEOC”) and the D.C. Office of
Human Rights (“OHR”) related to the events described above, first in 2003 (see Am.
Compl. ¶¶ 42–44); then, in 2011 (see id. ¶ 237; Pl.’s Opp’n at 23); and then, again, in
2012 (see Am. Compl. ¶ 235; Pl.’s Opp’n at 24). Lattisaw alleges that, finally, on
February 18, 2013, he successfully filed a “Charge of Discrimination Form” with the
EEOC (Am. Compl. ¶ 238), which included allegations “that [Lattisaw] was dismissed
f[rom] the [ ]MPD in retaliation for” filing complaints “about Lt. All[m]an and others”
(id. ¶ 239). Lattisaw states that this charge was “dual-filed with the DC OHR and . . .
assigned to EEOC for investigation.” (Id. ¶ 238.)
On February 27, 2013, the EEOC sent Lattisaw a document entitled “Dismissal
and Notice of Rights[.]” (See Am. Compl. at 64.) The notice informed Lattisaw that
the EEOC was closing its file on Lattisaw’s charge dated February 18, 2013, because
the “charge was not timely filed with EEOC[.]” (Id.) “[I]n other words,” the notice
explained, Lattisaw “waited too long after the date(s) of the alleged discrimination to
file [his] charge[.]” (Id.) The notice also informed Lattisaw of his right to file a
7
lawsuit based on the charge in federal or state court within 90 days of receiving the
notice. (See id.)
3. The Instant Action
Lattisaw filed the instant action pro se on May 24, 2013. Lattisaw’s amended
complaint alleges eight counts total—four sounding in federal civil rights law, and four
arising under state law (civil rights and tort). Counts I through IV contain Lattisaw’s
federal causes of action: Count I alleges that Defendants “den[ied Lattisaw] advanced
leave, [performance-of-duty] leave, sick leave, and worker’s compensation benefits”
(id. ¶¶ 241) in retaliation for Lattisaw “opposing unlawful and discriminatory
employment practices” (id. ¶¶ 243) in violation of Title VII and Section 1981. Count II
alleges that those same actions violated Title VII and Section 1983. (See id. ¶¶ 245,
247.) Count III alleges that “agents of the [ ]MPD retaliated against [Lattisaw] by
improperly influencing agents at the DC Office of Human Rights and the EEOC not to
process his . . . complaints . . . [and] in doing so conspired to ‘deprive’ [him] of equal
protections under the laws,” in violation of Title VII and Section 1985. (Id. ¶ 249.)
And Count IV alleges that Defendants “have retaliated against [Lattisaw] for filing a
Title VII complaint by using their government power to intimidate witnesses [and]
suborn perjury” in connection with Lattisaw’s prior Superior Court litigation in
violation of Title VII and Section 1986. (Id. ¶ 252.)
Counts V through VIII contain Lattisaw’s state law claims: Count V alleges that
Defendants retaliated against Lattisaw for opposing “unlawful and discriminatory
employment practices,” and encouraged others to do the same in violation of the
DCHRA. (Id. ¶ 255.) Count VI alleges that Defendants are liable for defamation for
the posting of Lattisaw’s altered injury report. (See id. ¶ 257.) Count VII alleges that
8
Defendants’ actions amount to negligent infliction of emotional distress. (See id.
¶ 263.) And, finally, Count VIII alleges that Defendants’ actions also amount to
intentional infliction of emotional distress. (See id. ¶ 268.) Lattisaw seeks
compensatory damages in the amount of five million dollars and, in connection with
Counts I through IV, punitive damages in the amount of five million dollars. (See id.
¶¶ 244, 248, 251, 252, 255, 261, 266, 269.) 4
Defendants filed the pending motion to dismiss on September 24, 2013. As an
initial matter, Defendants contend that the District of Columbia is the only proper
defendant in this action because the MPD, PFC, and PFRRB are subordinate
governmental agencies that are not subject to suit, and because official capacity suits
against former D.C. Attorney General Irvin Nathan and former D.C. Mayor Vincent
Gray—who are listed in the caption of Lattisaw’s amended complaint—are essentially
suits against the District. (See Defs.’ Br. at 6, 7–8.) With respect to Lattisaw’s federal
causes of action (Counts I–IV), Defendants argue that all of the federal claims are time-
barred either under Title VII’s timely exhaustion requirements or under the applicable
statutes of limitations. (See id. at 8–9, 10, 11–12.) In addition, Defendants contend
that Lattisaw lacks an independent cause of action under Section 1981 (see id. at 9–10),
and that he has failed to meet the pleading standards for conspiracy to interfere with
4
In his opposition to Defendants’ motion to dismiss, Lattisaw also “asks this Honorable Court to
reverse the [PFRRB]’s ruling[.]” (Pl.’s Opp’n at 11.) This requested remedy is not available in the
context of this case because, as Defendants point out, only the D.C. Court of Appeals is empowered to
review the PFRRB’s decisions. (See Defs.’ Reply to Pl.’s Opp’n, ECF No. 9, at 1–2 (citing D.C. Code
§ 2-510).) Moreover, there appears to be no factual basis for Lattisaw’s reversal request, given that his
own allegations suggest that the PFRRB ultimately ruled in his favor with respect to at least some of
his claims, and that the D.C. Court of Appeals concurred. (See Am. Compl. ¶ 126 (“On remand January
29, 2009, . . . [the] PFRRB concluded there was overwhelming evidence in the record to support their
conclusion that [Lattisaw’s] injury was the result of work place sexual harassment.”); id. ¶ 128 (“On
December 23, 2010, the DC Court of Appeals concurred with the finding of the Retirement Board.”).)
9
civil rights under Section 1985 and for failure to prevent such a conspiracy under
Section 1986 (see id. at 10–12). Defendants also assert that punitive damages are not
available against municipalities such as the District of Columbia. (See id. at 12–13.)
As for the amended complaint’s state law claims (Counts V–VIII), Defendants argue
that the DCHRA claim (Count V) is untimely (see id. at 12), that the defamation claim
(Count VI) is both untimely and precluded by the prior Superior Court litigation (see id.
at 13–14), and that the claims for negligent and intentional infliction of emotional
distress (Counts VII and VIII, respectively) are subject to grievance procedures under
the CMPA that Lattisaw has failed to follow (see id. at 14–15).
Defendants’ motion to dismiss is now fully briefed and ripe for this Court’s
review.
II. APPLICABLE LEGAL STANDARDS
Federal Rule of Civil Procedure 12(b)(6) provides that a party may move to
dismiss a complaint against it on the grounds that it “fail[s] to state a claim upon which
relief can be granted.” Fed. R. Civ. P. 12(b)(6). “A Rule 12(b)(6) motion tests the
legal sufficiency of a complaint[,]” Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir.
2002), and to survive such a motion, a complaint must comply with Rule 8(a), which
requires “a short and plain statement of the claim showing that the pleader is entitled to
relief[,]” Fed. R. Civ. P. 8(a)(2). The purpose of this requirement is to “‘give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests[.]’”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (first alteration in original)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
“Although ‘detailed factual allegations’ are not necessary to withstand a Rule
12(b)(6) motion to dismiss, a plaintiff must furnish ‘more than labels and conclusions’
10
or ‘a formulaic recitation of the elements of a cause of action.’” Busby v. Capital One,
N.A., 932 F. Supp. 2d 114, 133 (D.D.C. 2013) (quoting Twombly, 550 U.S. at 555). In
other words, the plaintiff must provide “more than an unadorned, the-defendant-
unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“[M]ere conclusory statements” of misconduct are not enough to make out a cause of
action against a defendant. Id. Rather, a complaint must contain sufficient factual
allegations that, if true, “state a claim to relief that is plausible on its face.” Twombly,
550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.
In considering a motion to dismiss, “[t]he court must view the complaint in a
light most favorable to the plaintiff and must accept as true all reasonable factual
inferences drawn from well-pleaded factual allegations.” Busby, 932 F. Supp. 2d at
134. Although the Court must accept the facts in the complaint, it “need not accept
inferences drawn by plaintiffs if such inferences are unsupported by the facts set out in
the complaint[,]” Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994),
nor is the court “bound to accept as true a legal conclusion couched as a factual
allegation[,]” Papasan v. Allain, 478 U.S. 265, 286 (1986).
When applying these legal standards in the instant case, this Court must be
mindful of the fact that Lattisaw is proceeding in this matter pro se. The pleadings of
pro se parties are to be “liberally construed,” and a pro se complaint “must be held to
less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus,
551 U.S. 89, 94 (2007) (per curiam) (internal quotation marks and citations omitted).
11
“This benefit is not, however, a license to ignore the Federal Rules of Civil
Procedure[,]” Sturdza v. United Arab Emirates, 658 F. Supp. 2d 135, 137 (D.D.C.
2009), meaning that even a pro se plaintiff must meet his burden of stating a claim for
relief, see Budik v. Dartmouth-Hitchcock Med. Ctr., 937 F. Supp. 2d 5, 11 (D.D.C.
2013); see also Atherton v. D.C. Office of the Mayor, 567 F.3d 672, 681 (D.C. Cir.
2009) (“[E]ven a pro se complainant must plead ‘factual matter’ that permits the court
to infer ‘more than the mere possibility of misconduct.’” (quoting Iqbal, 556 U.S. at
678, 679)).
III. ANALYSIS
Taken together, Lattisaw’s submissions sketch out an assortment of unfortunate
events that took place over a four-year period that generally concluded in 2006. (See
Am. Compl. ¶¶ 16–240.) In essence, Lattisaw maintains that Defendants “violat[ed] his
civil rights, as an African-American officer because he initiated an initial complaint”
regarding an alleged instance of sexual harassment by a superior officer (Am. Compl.
¶ 12), and that “Defendants retaliated against [him] for asserting his civil rights” in a
variety of ways, including “by terminating his reasonable accommodation, and taking
[the] adverse action of involuntary retirement . . . from his position within the [police]
department” (id. ¶ 13). In their motion to dismiss the amended complaint, Defendants
make a number of arguments regarding threshold issues, including questioning the
propriety of certain listed defendants (see Defs.’ Br. at 6–8) and challenging the
timeliness of all of Lattisaw’s federal and state claims (see id. at 8–12), and further
argue that Lattisaw has failed to allege facts relating to the essential elements of many
of his claims (see, e.g., id. at 10–12). For the reasons explained below, this Court
agrees with Defendants that the District of Columbia is the only appropriate defendant;
12
that most, if not all, of Lattisaw’s federal claims are untimely; and that Lattisaw has
failed to allege adequately the necessary elements to state a claim under either Section
1985 or Section 1986. As a result, none of Lattisaw’s federal claims survive the motion
to dismiss, and this Court also declines to exercise supplement jurisdiction over the
remaining state law claims.
A. The District Of Columbia Is The Only Proper Defendant In This
Action
At the outset, Defendants insist that the District of Columbia is the only
defendant that has been properly named in the instant action. (See id. at 2, 6–8.) The
amended complaint’s caption lists the District of Columbia and three of its subordinate
institutions—the D.C. Metropolitan Police Department, the D.C. Police and Fire Clinic,
and the D.C. Police and Firemen’s Retirement And Relief Board—as defendants,
followed by individuals Nathan and Gray. (See Am. Compl. at 1–2.) 5 This Court finds,
for the following reasons, that the only proper defendant under the circumstances
presented here is the District of Columbia itself.
First, it is well established that “non-corporate governmental bodies cannot be
sued as separate entities absent explicit statutory authorization.” Kangethe v. D.C.
Dep’t of Emp’t Servs., 891 F. Supp. 2d 69, 71 (D.D.C. 2012); see, e.g., D.C. Code § 38-
1202.01(a) (establishing Board of Trustees of the University of the District of Columbia
and providing that the Board may “[s]ue and be sued”). Lattisaw has failed to identify
any statutory authorization that would permit a suit against the MPD or the PFC
separate and apart from the suit against the District. See Aleotti v. Baars, 896 F. Supp.
5The individual names appear in the caption after the statement “SERVE,” which suggests that these
individuals have been designated only insofar as they are authorized to accept service on behalf of the
aforementioned institutions. (See Am. Compl. at 1–2.)
13
1, 6 (D.D.C. 1995) (dismissing claims against MPD because it “is a noncorporate
department or body within the District of Columbia and is not suable as a separate
entity”); Ray v. District of Columbia, 535 A.2d 868, 869 n.2 (D.C. 1987) (affirming
trial court’s dismissal of claims against PFC as a subordinate government entity not
subject to suit). The only statutory provision permitting suit against the PFRRB is D.C.
Code § 2-510, which provides generally for judicial review of mayoral or agency
decisions by the D.C. Court of Appeals, see, e.g., Rife v. D.C. Police & Firefighters’
Ret. & Relief Bd., 940 A.2d 964, 965 (D.C. 2007), and Lattisaw does not identify any
other statutory provision that would allow him to sue the PFRRB in federal court, nor is
this Court aware of any. Consequently, the Court agrees with Defendants that
Lattisaw’s claims against the MPD, the PFC, and the PFRRB must be dismissed, which
leaves the District itself as the sole remaining institutional defendant in this action.
Second, to the extent that Lattisaw also intended to include Nathan and Gray as
individual defendants, Defendants are correct that, as a general matter, claims against
D.C. officials “in their official capacities are effectively claims against the District of
Columbia.” Holmes-Ramsey v. District of Columbia, 747 F. Supp. 2d 32, 42 (D.D.C.
2010); see also Kentucky v. Graham, 473 U.S. 159, 165–66 (1985) (“Official-capacity
suits . . . ‘generally represent only another way of pleading an action against an entity
of which an officer is an agent.’” (quoting Monell v. New York City Dep’t of Soc.
Servs., 436 U.S. 658, 690 n.55 (1978))). 6 Because Lattisaw’s amended complaint does
6
Defendants have interpreted the amended complaint as naming Nathan and Gray as separate,
individual defendants (see Defs.’ Br. at 7–8); however, the Court has doubts that this was Lattisaw’s
intention because there are no allegations whatsoever pertaining to Nathan or Gray in Lattisaw’s
amended complaint, opposition memorandum, or surreply memorandum, and, as noted, it appears that
Lattisaw has listed these individuals in the amended complaint’s caption only to designate them as
recipients of service of process for the other defendants. (See Am. Compl. at 1–2; see also supra note
5.)
14
not specify whether Nathan and Gray are being sued in their official or individual
capacities (or both), this Court must necessarily evaluate “the nature of the liability
sought to be imposed.” Dickerson v. District of Columbia, No. 09-cv-2213, 2014 WL
4851854, at *4 (D.D.C. Sept. 30, 2014) (internal quotation marks and citation omitted).
And given that none of the factual allegations in the amended complaint mention
Nathan or Gray specifically, much less claim that either played any personal role in any
of the events at issue, the nature of the individual liability here is clearly an “official
capacity” action, assuming that Lattisaw intended to sue these individuals at all. See
Holmes-Ramsey, 747 F. Supp. 2d at 42 (“[T]he Complaint’s omission of any factual
allegations regarding the Officials indicates that the Officials were named as defendants
simply as another means of asserting claims against the District of Columbia.”).
Accordingly, and also in light of the fact that the District itself is a Defendant, any
claims that Lattisaw has brought against Nathan and Gray must be dismissed. See Price
v. District of Columbia, 545 F. Supp. 2d 89, 94 (D.D.C. 2008) (collecting cases and
explaining that “the overwhelming approach” of courts in this jurisdiction is to
“summarily dismiss[]” claims against “government officials [who are] sued in their
official capacities in conjunction with suits also filed against the municipality”).
B. Lattisaw’s Claims Under Title VII, Section 1981, and Section 1983 Are
Time-Barred
With respect to Defendants’ myriad statutes of limitations arguments, this Court
begins with the recognition that, as a general matter, statutes of limitations create time
limits for filing civil cases based on the date when a plaintiff’s claims accrue, see CTS
Corp. v. Waldburger, 134 S. Ct. 2175, 2182 (2014), and thus, because time limits
protect defendants against the unforeseen “revival of claims that have been allowed to
15
slumber until evidence has been lost, memories have faded, and witnesses have
disappeared[,]” such statutes “are designed to promote justice[,]” Order of R.R.
Telegraphers v. Ry. Express Agency, 321 U.S. 342, 348–49 (1944). However, “statute
of limitations issues often depend on contested questions of fact,” Firestone v.
Firestone, 76 F.3d 1205, 1209 (D.C. Cir. 1996) (citing Richards v. Mileski, 662 F.2d
65, 73 (D.C. Cir. 1981)); therefore, the D.C. Circuit has cautioned that “courts should
hesitate to dismiss a complaint on statute of limitations grounds[,]” and that “dismissal
is appropriate only if the complaint on its face is conclusively time-barred[,]” id. Put
another way, 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. See Smith-Haynie
v. District of Columbia, 155 F.3d 575, 578 (D.C. Cir. 1998).
With this caution in mind and for the reasons that follow, this Court finds that
Lattisaw’s Title VII, Section 1981, and Section 1983 claims are, indeed,
“conclusively”—i.e., definitively and irrefutably—time-barred, given the facts that are
alleged in Lattisaw’s amended complaint.
1. None Of The Allegedly Discriminatory Employment Practices
Underlying Lattisaw’s Title VII Claims Took Place Within The
Applicable 300-Day Window
The amended complaint lists “Title VII, 42 U.S.C. § 2000e-2(a)” as one of the
two statutory bases for each of the four counts claiming federal civil rights violations.
(See Am. Compl. at 56, 57, 58.) Broadly speaking, Title VII prohibits employment
discrimination on the basis of an “individual’s race, color, religion, sex, or national
origin[,]” 42 U.S.C. § 2000e-2(a), and it also “protects employees who file
discrimination charges (or engage in other statutorily protected activity) from
16
materially adverse retaliation by their employers[,]” Howard R.L. Cook & Tommy Shaw
Found. ex rel. Black Emps. of Library of Congress, Inc. v. Billington, 737 F.3d 767, 772
(D.C. Cir. 2013); see also 42 U.S.C. § 2000e-3(a). Courts in this jurisdiction have also
long recognized that Title VII contains administrative exhaustion requirements that are
akin to statutes of limitation. See Bowden v. United Sates, 106 F.3d 433, 437 (D.C. Cir.
1997); Cornish v. District of Columbia, 67 F. Supp. 3d 345, 357 (D.D.C. 2014). In this
regard, prior to filing a Title VII suit in federal court, a complainant must file a charge
of discrimination with the EEOC within 180 days of the alleged unlawful employment
practice, or within 300 days of such practice if the complainant “has initially instituted
proceedings with a State or local agency with authority to grant or seek relief from such
practice[.]” 42 U.S.C. § 2000e-5(e)(1); see also Munoz v. Bd. of Trs. of Univ. of D.C.,
590 F. Supp. 2d 21, 25 (D.D.C. 2008). Charges alleging “discrete discriminatory or
retaliatory acts ‘must be filed within the 180- or 300-day time period after the discrete
discriminatory act occurred’ and ‘are not actionable if time barred, even when they are
related to acts alleged in timely filed charges.’” Munoz, 590 F. Supp. 2d at 25 (quoting
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002)). Charges alleging a
hostile work environment are treated somewhat differently, however, because “[a]
hostile work environment claim is composed of a series of separate acts that
collectively constitute one ‘unlawful employment practice.’” Morgan, 536 U.S. at 117.
Thus, a hostile work environment claim is considered timely filed so long as “an[y] act
contributing to the claim occurs within the [180- or 300-day] filing period[.]” Id.
In the instant case, Lattisaw alleges that Defendants “retaliat[ed] against [him]
for opposing unlawful and discriminatory employment practices and/or for making a
17
charge of unlawful and discriminatory employment practices” (Am. Compl. ¶¶ 243,
247; see also id. ¶¶ 249–50, 252), during a period of time that appears to span from
September or October of 2002 until September of 2006, when Lattisaw was allegedly
forced into involuntary retirement (see id. ¶ 114). Taking the facts alleged in the
amended complaint as true, Lattisaw’s EEOC charge, which was dated February 18,
2013, “was treated as dual-filed with the DC OHR” (id. ¶ 238), which means that the
300-day time window applies, see 42 U.S.C. § 2000e-5(e)(1). Therefore, to be
actionable in this Court, the employment practices upon which Lattisaw’s amended
complaint is based must have occurred no earlier than April 24, 2012—i.e., within 300
days of his EEOC charge. Unfortunately for Lattisaw, it is clear on the face of the
amended complaint that the challenged employment actions or practices took place long
before April 24, 2012, and this is so even if Lattisaw’s retaliation allegations are
characterized as a hostile work environment claim. Thus, it is clear on the face of the
complaint that Lattisaw has failed to satisfy Title VII’s timely exhaustion
requirements. 7
7
Lattisaw does appear to base one retaliation contention on certain alleged conduct that theoretically
could have occurred after April 24, 2012; namely, he alleges that “agents of the [ ]MPD retaliated
against him by improperly influencing agents at the DC Office of Human Rights and the EEOC not to
process his two separate complaints filed with the EEOC[.]” (Am. Compl. ¶ 249 (emphasis added).)
Lattisaw does not mention a date or dates on which this “improper[] influenc[e]” conduct occurred, nor
does the amended complaint specifically reference which of the several EEOC filings that Lattisaw
allegedly made were the ones that MPD officers allegedly obstructed. (See Am. Compl. ¶¶ 235–40.)
To the extent that Lattisaw is referring to the EEOC complaints that he allegedly filed on December 21,
2012, and on February 18, 2013 (see id. ¶¶ 235–38), Lattisaw would have had to exhaust this retaliation
allegation by raising it with the EEOC within 300 days of the conduct giving rise to such a claim, and
the lack of any factual details whatsoever regarding the alleged improper influence conduct and
Lattisaw’s response to it means that there is simply no factual basis upon which this Court can conclude
that Lattisaw exhausted this particular claim at all, much less that the conduct giving rise to such claim
took place within the 300-day window prior to any such EEOC charge.
18
Lattisaw’s timeliness arguments are unpersuasive, no matter how liberally
construed. For example, Lattisaw appears to invoke the continuing violations doctrine
in response to Defendants’ statute of limitations contentions. (See Pl.’s Opp’n at 30.) 8
The continuing violations doctrine may be “muddled, intricate and somewhat
confusing,” Earle v. District of Columbia, 707 F.3d 299, 306 (D.C. Cir. 2012) (internal
quotation marks and citation omitted), but this much is clear—the applications of that
doctrine that courts in this jurisdiction have recognized simply do not apply here.
Indeed, under established precedent, a “continuing violation” exists for limitations
purposes when the challenged conduct’s “character as a violation did not become clear
until it was repeated during the limitations period, typically because it is only its
cumulative impact (as in the case of a hostile work environment) that reveals its
illegality.” Id. (emphasis added) (internal quotation marks and citation omitted). Thus,
although Lattisaw argues that application of the “continuing violations” doctrine is
“warranted” here (Pl.’s Opp’n at 30 (emphasis omitted)), the factual bases for
Lattisaw’s discrimination claims as stated in the amended complaint took place entirely
outside of the 300-day charge window, thereby rendering the doctrine inapposite. See
Earle, 707 F.3d at 306 (explaining that the continuing violation doctrine’s effect is to
allow a plaintiff to “rely on conduct that took place outside the limitations period so
8
Specifically, Plaintiff argues in his opposition to Defendants’ motion to dismiss that:
[C]ontinuing violations are warranted from the hostile environment he
experienced with all Defendants, as those violations did not become clear to
the Plaintiff, until all the pieces started to fit together, almost five years later,
until the conclusion [of the] second DCPRRB ruling on non-POD annuity and
overwhelming evidence of sexual harassment, combined with previous appeals,
complaints, grievances and POD reversals of its cumulative, negative impact
emotional, physical and financial impact on the Plaintiff.
(Pl.’s Opp’n at 30 (emphasis in original).)
19
long as some conduct on which the claim is based took place within the limitations
period” (emphasis added)). Furthermore, Lattisaw has not pointed to any precedent in
which Title VII has been deemed to be a statute wherein “the text of the pertinent law
imposes a continuing obligation to act or refrain from acting” such that the continuing
violations doctrine would necessarily be recognized. See id. at 307. Consequently, the
continuing violations doctrine is of no help to Lattisaw, and this Court finds that
Lattisaw’s Title VII claims are conclusively time-barred on the facts as alleged in
Lattisaw’s amended complaint.
2. Lattisaw’s Section 1981 Claim Accrued More Than Four Years
Before He Filed The Instant Action
Lattisaw has also attempted to assert a claim under 42 U.S.C. § 1981, a statute
that prohibits racial discrimination with respect to the right of “[a]ll persons within the
jurisdiction of the United States . . . to make and enforce contracts,” including contracts
for employment. 42 U.S.C. § 1981(a); see also Domino’s Pizza, Inc. v. McDonald, 546
U.S. 470, 474–75 (2006). Notably, the Civil Rights Act of 1991 amended Section 1981
by defining the phrase “make and enforce contracts” to include “the making,
performance, modification, and termination of contracts, and the enjoyment of all
benefits, privileges, terms, and conditions of the contractual relationship.” 42 U.S.C.
§ 1981(b); see also Domino’s Pizza, 546 U.S. at 477. Thus, the category of conduct
subject to liability under Section 1981 was broadened, see Rivers v. Roadway Express,
Inc., 511 U.S. 298, 303 (1994), and as a result, the Supreme Court has recognized that
Section 1981, like Title VII, “encompasses retaliation claims[.]” CBOCS West, Inc. v.
Humphries, 553 U.S. 442, 451 (2008).
20
To state a claim for retaliation under “Section 1981, [a] Plaintiff must allege that
he engaged in a statutorily protected activity, that his employer took an adverse
personnel action against him, and that a causal connection exists between the two.”
Jones v. D.C. Water & Sewer Auth., 922 F. Supp. 2d 37, 41 (D.D.C. 2013); see also
Carter v. George Washington Univ., 387 F.3d 872, 878 (D.C. Cir. 2004). Lattisaw
alleges that Defendants “retaliated against him for filing a Title VII complaint by
denying him advanced leave, [performance-of-duty] leave, sick leave, and worker’s
compensation benefits[,]” (Am. Compl. ¶ 241) and Defendants contend, inter alia, that
Lattisaw’s Section 1981 claim is untimely and is therefore subject to dismissal (see
Defs.’ Br. at 9, 10). This Court finds that, even when Lattisaw’s submissions are
construed in the light most favorable to him, Defendants are correct that Lattisaw’s
Section 1981 claim is not timely.
Like many federal civil rights statutes, Section 1981 does not contain its own
statute of limitations, see Pyne v. District of Columbia, 298 F. Supp. 2d 7, 9 (D.D.C.
2002), and the briefs here suggest some confusion as to which limitations period applies
in the instant case (compare Defs.’ Br. at 10 (suggesting that the general four-year
statute of limitations found in 28 U.S.C. § 1658 applies to Lattisaw’s Section 1981
claims), with Defs.’ Reply to Pl.’s Opp’n (“Defs.’ Reply”), ECF No. 9, at 4 (noting that
“there is case law supporting the proposition that the statute of limitations for such
claims is . . . three[ ]years”)). Courts in this jurisdiction generally agree that the four-
year statute of limitations in 28 U.S.C. § 1658 applies only to “claims that are ‘made
possible’ by a post-1990 [congressional] enactment, including the Civil Rights Act of
1991,” Hamilton v. District of Columbia, 852 F. Supp. 2d 139, 144 (D.D.C. 2012); and
21
consequently, the key to determining which statutory period applies in any given case is
whether the claims at issue arise under the pre- or post-amendment portion of Section
1981. See Uzoukwu v. Metro. Council of Gov’ts, 27 F. Supp. 3d 62, 65–66 (D.D.C.
2014); see also Graves v. District of Columbia, 777 F. Supp. 2d. 109, 115 (D.D.C.
2011) (explaining that “[s]ome Section 1981 claims will be subject to a three-year
limitations period[ and] others, a four-year limitations period”). If the claim relates to
racial discrimination in “contract formation[,]” Uzoukwu, 27 F. Supp. 3d at 66
(emphasis omitted), then the claim is said to arise under the pre-amendment portion of
Section 1981, and “courts should apply ‘the most appropriate or analogous state statute
of limitations[,]’” Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 371 (2004)
(quoting Goodman v. Lukens Steel Co., 482 U.S. 656, 660 (1987)), which in the District
of Columbia is three years, see Carney v. Am. Univ., 151 F.3d 1090, 1096 (D.C. Cir.
1998). If, however, the claim relates to “post-contract formation conduct[,]” then it
arises under the post-amendment portion of Section 1981 and is “governed by the
federal four-year limitations period” found in 28 U.S.C. § 1658. Uzoukwu, 27 F. Supp.
3d at 66 (emphasis omitted). There is no question that Lattisaw challenges only post-
contract formation conduct here (see Am. Compl. ¶ 241 (alleging that Defendants
“retaliated against him . . . by denying him advanced leave, [performance-of-duty]
leave, sick leave, and worker’s compensation benefits”)); therefore, Lattisaw’s Section
1981 claim is subject to a four-year limitations period running from the date on which
those claims accrued.
Be that as it may, it is also quite clear on the face of the amended complaint that
application of the longer limitations period is not enough to save Lattisaw’s Section
22
1981 claim. Lattisaw’s amended complaint states that the PFRRB involuntarily retired
him on September 6, 2006, thereby terminating his employment along with its
associated terms, conditions, and benefits. (See Am. Compl. ¶ 114.) However,
Lattisaw did not file the instant action until May 24, 2013—more than 6 years after his
allegedly involuntary retirement. To address this timing problem, Lattisaw maintains
that none of his retaliation claims accrued (i.e., the statute of limitations period did not
begin to run) until 2009, when he supposedly learned that Sergeant Harp had never
certified one of Lattisaw’s injury reports for PFC review. (See Pl.’s Opp’n at 13; see
also Am. Compl. ¶ 190.) In so arguing, Lattisaw appears to invoke the so-called
“discovery rule,” under which “accrual is delayed until the plaintiff has discovered his
cause of action[,]” Gabelli v. SEC, 133 S. Ct. 1216, 1221 (2013) (internal quotation
marks and citation omitted), but this reliance is unavailing for at least two reasons.
First of all, it is not at all clear that the discovery rule even applies in this
circumstance because the discovery rule exception is usually reserved for tort cases that
involve injuries that are difficult to discover. See In re Navy Chaplaincy, 69 F. Supp.
3d 249, 257 (D.D.C. 2014). Second, “[e]ven assuming . . . that the ‘discovery rule’
applied to this case, it is discovery ‘of the injury, not . . . the other elements of a claim
[that] starts the clock.’” Id. (emphasis and alterations in original) (quoting Rotella v.
Wood, 528 U.S. 549, 555–56 (2000)); see also Kifafi v. Hilton Hotels Ret. Plan, 701
F.3d 718, 729 (D.C. Cir. 2012) (“[T]he discovery rule . . . provides that the statute of
limitations begins when the plaintiff discovers, or with due diligence should have
discovered, the injury supporting the legal claim.” (internal quotation marks and
citation omitted)). There is nothing in Lattisaw’s submissions to suggest that he was
23
unaware of the injuries underlying his Section 1981 retaliation claim prior to 2009; in
fact, he was most certainly contemporaneously aware of the most obvious allegedly
retaliatory act (the involuntary termination of his employment), which occurred in
2006. Lattisaw’s contention that Defendants’ alleged “violations did not become clear
to [him], until all the pieces started to fit together, almost five years later[,]” and he
came to understand the resulting “cumulative, negative . . . emotional, physical and
financial impact” of the Defendants’ conduct (Pl.’s Opp’n at 30), is not a credible
description of Lattisaw’s first indication of harm, and in any event, as explained, it is
awareness of the harm itself—and not a plaintiff’s full appreciation of the impact of the
injury—that matters for purposes of the discovery rule. Based on the allegations in the
amended complaint, it is clear beyond cavil that Lattisaw was aware of the allegedly
harmful conduct of which he now complains from the point at which MPD agents
allegedly began reacting to his filing of a complaint against his superior officer, and he
certainly was aware of his injury as of September of 2006, when he allegedly was
forced to retire. Consequently, Lattisaw cannot rely on the discovery rule with respect
to his Section 1981 claim, and this Court finds that the four-year statute of limitations
with respect to that claim began to run no later than September 6, 2006, rendering his
filing of the instant claim in May of 2013 untimely.
The doctrine of equitable tolling, which Lattisaw also invokes with respect to his
Section 1981 claim (see, e.g., Pl.’s Opp’n at 14), is similarly unhelpful to him.
“Equitable tolling permits a plaintiff to avoid the bar of the limitations period if despite
all due diligence [he or] she is unable to obtain vital information bearing on the
existence of [his or] her claim.” Smith-Haynie, 155 F.3d at 579 (citing Cada v. Baxter
24
Healthcare Corp., 920 F.2d 446, 451 (7th Cir. 1990)). A plaintiff bears the burden of
showing that such tolling is warranted, and it is well established that courts should
apply equitable tolling “only in extraordinary and carefully circumscribed instances.”
Mondy v. Sec’y of the Army, 845 F.2d 1051, 1057 (D.C. Cir. 1988); see also Morgan,
536 U.S. at 113 (“[E]quitable doctrines such as tolling . . . are to be applied
sparingly.”). No such circumstances exist here. Although Lattisaw asserts “that he has
diligently pursued his legal rights” (Pl.’s Opp’n at 14), nowhere in any of his
submissions has he identified any “vital information” pertaining to “the existence of”
his Section 1981 claim that he tried, but failed, to obtain during the limitations period.
Moreover, although Lattisaw points to various “General Orders” and other documents
that the MPD allegedly withheld (id. at 47; see also Am. Compl. ¶¶ 130–34), he has not
alleged any facts that connect those documents to his claim for retaliation under Section
1981.
Nor can Lattisaw sustain his contention that application of the statute of
limitations should be suspended with respect to his Section 1981 claim based on “the
continuous treatment, or representation doctrine.” (Pl.’s Opp’n at 13.) The tolling
principles of “continuous treatment” and/or “continuous representation” ordinarily
apply only to medical and legal malpractice claims, respectively. See Page v. United
States, 729 F.2d 818, 823 n.36 (D.C. Cir. 1984) (“[W]hen there has been a course of
continuous medical treatment, a cause of action for malpractice accrues at the end of the
continuous treatment if the treatment has been for the same illness or injury out of
which the claim for malpractice arose.” (internal quotation marks and citation
omitted)); Bradley v. Nat’l Ass’n of Sec. Dealers Dispute Resolution, Inc., 433 F.3d
25846, 850 (D.C. Cir. 2005) (“Under th[e continuous representation] rule, when the injury
to the client may have occurred during the period the attorney was retained, the
malpractice cause of action does not accrue until the attorney’s representation
concerning the particular matter in issue is terminated.” (internal quotation marks and
citation omitted)). Lattisaw has not explained why these doctrines are applicable in the
instant case, and this Court sees no reason to apply them.
In the end, then, this Court is quite confident that Lattisaw’s Section 1981 claim
is conclusively time-barred and must be dismissed. 9
3. Lattisaw’s Section 1983 Claim Accrued More Than Three Years
Before He Filed The Instant Action
In Count II of the amended complaint—which Lattisaw has labeled as a claim
under Title VII and Section 1983—Lattisaw repeats the same factual allegations he has
made with respect to the Title VII and Section 1981 claims in Count I. (Compare Am.
Compl. ¶¶ 241–43, with id. ¶¶ 245–47.) The gravamen of Lattisaw’s allegations is that
“Chief Ramsey, Assistant Chief Cockett, and Michael Eldridge retaliated against him
9
Having held that Lattisaw’s Section 1981 claim will be dismissed as untimely, this Court need not—
and does not—reach Defendants’ alternative argument with respect to the Section 1981 claim: that only
private and not state actors are subject to direct suit under this statute. (See Defs.’ Br. at 9.)
Defendants point to Jett v. Dallas Independent School District, 491 U.S. 701 (1989), in which the
Supreme Court concluded that Section 1981 does not confer a private right of action against state
actors, and argue that the cause of action found in Section 1983 is the only claim that can be made
against state actors who engage in conduct that violates Section 1981. (See Defs.’ Br. at 9; see also
Defs.’ Reply at 3 n.1.) But, the D.C. Circuit recently permitted a plaintiff to use the right of action
found in Section 1983 to bring claims concerning the rights at issue in Section 1981, which suggests
that plaintiffs may borrow the procedural remedy in Section 1983 to advance substantive Section 1981
claims against state actors. See Brown v. Sessoms, 774 F.3d 1016, 1021–22 (D.C. Cir. 2014) (quoting
Johnson v. City of Shelby, 135 S. Ct. 346, 347 (2014)) (holding that plaintiff was “not obligated to
‘invoke section 1983 expressly in order to state a claim’” under Section 1981 where defendants were
“plainly state actors” and plaintiff had otherwise “stated the facts allegedly giving rise to liability”
under Section 1981); see also Olatunji v. District of Columbia, 958 F. Supp. 2d 27, 33 (D.D.C. 2013)
(“To prevail on a claim under § 1981 against the District . . . a plaintiff must show that the violation of
his right to make contracts protected by § 1981 was caused by a custom or policy within the meaning of
Monell and subsequent cases.” (internal quotation marks and citation omitted)). This suggests that
Defendants’ view of Jett as foreclosing Lattisaw’s Section 1981 claim as a matter of law may not be the
law in this circuit.
26
for filing a [discrimination] complaint by denying him advanced leave, [performance of
duty] leave, sick leave, and worker’s compensation benefits authorized by law.” (Id.
¶ 245.) As best this Court can tell, Lattisaw seeks to impose municipal liability on the
District for Eldridge’s “determin[ation] that [Lattisaw]’s condition permanently
prevented him from police work” (id. ¶ 226), and for Cockett’s actions “refus[ing] to
process leave requests submitted by Lattisaw, den[ying] hi[m] leave authorized by law,
and plac[ing] him in a [leave-without-pay] status” (id. ¶ 6). (See also Pl.’s Opp’n at 21
(“[Lattisaw] asserts that the District is liable for the policy decisions of MPD Official
Cockett . . . and the policy decisions of Captain Michael Eldridge[.]”).) Thus, reading
Lattisaw’s submissions together, this Court construes Count II as a claim for municipal
liability under Section 1983 with respect to the named MPD officers’ alleged violations
of Lattisaw’s federal civil rights. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658,
694–95 (1978). Defendants argue that even if Lattisaw has managed to state a claim
under Section 1983, this claim is manifestly untimely as alleged here. (Defs.’ Br. at 8–
9.) This Court agrees.
Section 1983 provides a cause of action against state actors for deprivation of
individual rights that arise under the constitution or federal statutes. See 42 U.S.C.
§ 1983; see also City of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 119 (2005). In
order to state a claim for municipal liability under Section 1983, a plaintiff must allege
“a predicate . . . violation” of a federal right that “a custom or policy of the
municipality caused[.]” Baker v. District of Columbia, 326 F.3d 1302, 1306 (D.C. Cir.
2003); see also Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 106
(1989) (explaining that “[a] determination that § 1983 is available to remedy a statutory
27
or constitutional violation involves a two-step inquiry”). 10 In the District of Columbia,
federal courts apply the District’s “three-year residual statute of limitations to a section
1983 claim[,]” Earle, 707 F.3d at 305, and such claims are said to accrue “when a
plaintiff has ‘a complete and present cause of action’ and can ‘file suit and obtain
relief[,]’” Hill v. Gray, 28 F. Supp. 3d 47, 57 (D.D.C. 2014) (quoting Bay Area Laundry
& Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 201
(1997)).
With respect to these standards, the D.C. Circuit has recognized that Section
1983 claims generally accrue when the challenged wrongful conduct occurs. See Earle,
707 F.3d at 305 (citing Munoz v. Bd. of Trs. of Univ. of D.C., 427 F. App’x 1, 4 (D.C.
Cir. 2011) (per curiam)). The conduct that Lattisaw appears to challenge in the Section
1983 claim he brings here took place in the course of his employment with the MPD,
which ended on September 6, 2006, and because Lattisaw did not file the instant action
until more than six years later, his Section 1983 claim falls well outside the applicable
three-year limitations period. Indeed, even if this Court was to assume arguendo that
none of Lattisaw’s claims accrued until 2009—when Lattisaw discovered Harp’s
alleged failure to certify one of Lattisaw’s injury reports (see Pl.’s Opp’n at 13)—
Lattisaw’s Section 1983 claim would still be untimely in light of the applicable three-
year statute of limitations.
Nevertheless, Lattisaw argues that this Court should equitably toll the statute of
limitations with respect to his Section 1983 claim because Defendants fraudulently
10
The Court assumes without deciding that Lattisaw has stated the elements of a claim for relief under
Section 1983. See Earle, 707 F.3d at 304 (internal quotation marks, alteration, and citation omitted)
(“In our circuit it is a venerable practice, and one frequently observed, to assume arguendo the answer
to one question in order to resolve a given case by answering another and equally dispositive one.”).
28
concealed pertinent evidence. (See, e.g., id. at 47 (asserting that Defendants
“fraudulently concealed evidence” that “substantiate[s] his 1983 claim[]”).) See also
Earle, 707 F.3d at 309 (quoting Drake v. McNair, 993 A.2d 607, 619 (D.C. 2010))
(explaining that, under the common law doctrine of fraudulent concealment,
“‘affirmative acts employed by a party to fraudulently conceal either the existence of a
claim or facts forming the basis of a cause of action toll the running of limitations
periods’”). 11 Specifically, Lattisaw alleges that, in April of 2012, the MPD released
documents that Lattisaw maintains the Department “had sought to conceal from the
public and its officers for years” (Am. Compl. ¶ 130), including “nearly all of its
General Orders, Special Orders and related directives, which dictate[] how []MPD
personnel [are] to exercise [their] authority” (id. ¶ 131). Lattisaw does not allege any
further facts with respect to the content of these supposedly fraudulently withheld
documents, other than to state generally that the documents “substantiate his 1983
claim[]” and “bolster[] his factual support for existing claims” (Pl.’s Opp’n at 47), and
his attempt to argue that the statute of limitations should be tolled on fraudulent
concealment grounds plainly fails because none of Lattisaw’s submissions makes any
allegations regarding what, if any, specific “affirmative” steps Defendants took to
conceal the documents mentioned. Nor has Lattisaw alleged facts sufficient to support
any inference that such documents relate to “either the existence of . . . or facts forming
the basis of” his Section 1983 claim or any other claims. Earle, 707 F.3d at 309
11
In Earle v. District of Columbia, the D.C. Circuit recognized that “in a section 1983 action, [courts]
apply the tolling rules of ‘the state in which the cause of action arose[.]’” Earle, 707 F.3d at 309
(quoting Wallace v. Kato, 549 U.S. 384, 387 (2007)). In Earle, as here, the Section 1983 cause of
action arose in D.C. and thus “we look to the law of the District of Columbia for the relevant common
law tolling rules.” Id.
29
(internal quotation marks and citation omitted). Instead, Lattisaw’s concealment
allegations appear to be based on his general belief that such documents “would have
aided the courts and the District in reaching a fair an[d] impartial decision much earlier
as it relates to [Lattisaw’s] charge of discrimination.” (Am. Compl. ¶ 134; see also id.
(“The accuracy of documents, submitted in the Court system initially started out as
inaccurate.”).) Put another way, it appears that Lattisaw believes that the documents
demonstrate that the Superior Court and the PFRRB got it wrong in his case, and he
now looks to this Court to reach a different conclusion. (See, e.g., Pl.’s Opp’n at 11
(“[Lattisaw] asks this Honorable Court to reverse the [PFRRB]’s ruling[.]”).) However,
even the most earnest convictions and contentions are, without more, manifestly
insufficient to give rise to any inference that fraudulent concealment occurred or that
any other grounds for concluding that the statute of limitations should be tolled exists.
Consequently, this Court has no choice but to conclude that the Section 1983 claim
Lattisaw has brought in this case is conclusively time-barred and must be dismissed.
C. Lattisaw Has Failed To State A Claim For Relief Under Either
Section 1985 Or Section 1986
At this point in the Court’s analysis, only two federal civil rights claims remain:
Counts III and IV, which allege that Defendants have violated Section 1985 and Section
1986, respectively. Section 1985 addresses “[c]onspirac[ies] to interfere with civil
rights[,]” and as relevant here, provides a cause of action for damages against any “two
or more persons” who “conspire . . . for the purpose of depriving, either directly or
indirectly, any person or class of persons of the equal protection of the laws[.]”
42 U.S.C. § 1985(3). Section 1986 provides a cause of action for “neglect to prevent” a
Section 1985 conspiracy. Id. § 1986. It is not clear from the face of the amended
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complaint whether or not Lattisaw has brought these claims within the applicable
statutes of limitations, and perhaps for this reason Defendants also contend that
Lattisaw has failed to allege facts to support each of the required elements of claims
brought under Section 1985 or Section 1986. (See Defs.’ Br. at 10–12.) For the reasons
that follow—and, in particular, because “even a pro se complainant must plead ‘factual
matter’ that permits the court to infer ‘more than the mere possibility of misconduct[,]’”
Atherton, 567 F.3d at 681–82 (quoting Iqbal, 556 U.S. at 678, 679)—this Court agrees
with Defendants that Lattisaw has failed to state a claim for which relief can be granted
under Section 1985 or Section 1986.
With respect to Lattisaw’s Section 1985 claim, Count III of the amended
complaint alleges that Defendants “conspired to ‘deprive’ [Lattisaw] of equal
protections under the laws” when “agents of the []MPD . . . improperly influenc[ed]
agents at the DC Office of Human Rights and the EEOC not to process [Lattisaw’s] two
separate complaints filed with the EEOC[.]” (Am. Compl. ¶ 249.) To state a claim for
conspiracy to interfere with civil rights under 42 U.S.C. § 1985(3), a plaintiff must
allege: “(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly,
any person or class of persons of the equal protection of the laws, . . . and (3) an act in
furtherance of the conspiracy; (4) whereby a person is either injured in her person or
property or deprived of any right or privilege of a citizen of the United States.”
Atherton, 567 F.3d at 688 (alteration in original) (quoting Martin v. Malhoyt, 830 F.2d
237, 258 (D.C. Cir. 1987)). Furthermore, the D.C. Circuit has recognized that such a
conspiracy must be “motivated by some class-based, invidiously discriminatory
animus.” Id. (internal quotation marks and citation omitted); see also Kelley v. District
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of Columbia, 893 F. Supp. 2d 115, 120 (D.D.C. 2012) (“Alleging that the defendants
were motivated by a class-based invidiously discriminatory animus is required in order
to avoid converting Section 1985 into a general federal tort law claim.” (internal
quotation marks and citation omitted)).
Here, even under the most liberal interpretation of Lattisaw’s submissions,
Lattisaw has not alleged any facts that, if true, would show that Defendants conspired
against him because of class-based, discriminatory animus. The only factual allegations
in Lattisaw’s submissions that pertain to his Section 1985 claim are that: (1) “Captain
Robert Tupa [and] Captain Michael Eldridge[,] . . . at the behest of Chief Ramsey and
other agents of [the] []MPD[,] abused their authority and improperly influenced the
investigation and grievance filed by Sgt. Lattisaw in retaliation for Sgt. Lattisaw filing
a Title VII complaint” (Am. Compl. ¶ 8); (2) such “unethical lower ranked []MPD
officials[] [were] aided and abetted by other unethical senior []MPD officials”
(id. ¶ 219); and (3) various D.C. employees and officials “wrongfully, maliciously and
without probable cause, conspired in carrying out their plan to wrongfully cause
[Lattisaw’s] forced disability retirement” (id. ¶ 214). The amended complaint does not
make any allegations regarding acts taken in furtherance of the alleged conspiracy, nor
does it assert that the alleged conspiracy was motivated by invidious discriminatory
animus. Thus, this Court is unable to “draw the reasonable inference that the
defendant[s are] liable for the misconduct alleged[,]” Iqbal, 556 U.S. at 678, and
Lattisaw’s bare and conclusory contentions are not enough to survive Defendants’
motion to dismiss. See also id. (“Where a complaint pleads facts that are ‘merely
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consistent with’ a defendant’s liability, it ‘stops short of the line between possibility
and plausibility of ‘entitlement to relief.’” (quoting Twombly, 550 U.S. at 557)).
The fact that Lattisaw’s Section 1985 is the death knell for his Section 1986
claim as well, because “a colorable claim under § 1985 is a prerequisite to stating an
adequate claim for neglect to prevent under § 1986.” Burnett v. Sharma, 511 F. Supp.
2d 136, 145 (D.D.C. 2007) (internal quotation marks and citation omitted); see also
Rodriguez v. Editor in Chief, Legal Times, 285 F. App’x 756, 759 (D.C. Cir. 2008) (per
curiam) (holding that “there is no basis for relief under § 1986” where a plaintiff “did
not state a claim under § 1985(3)”). Furthermore, even if Lattisaw had provided
sufficient allegations to satisfy the predicate terms of Section 1985, this Court finds that
the amended complaint is devoid of any allegations pertaining to Defendants’ supposed
failure to prevent a conspiracy to violate his civil rights—allegations that are needed to
support a claim brought under Section 1986. Thus, Lattisaw’s Section 1986 claim also
fails in its own right, and must be dismissed.
D. This Court Declines To Exercise Supplemental Jurisdiction Over
Lattisaw’s State Law Claims
Finally, given that Lattisaw has brought four state law counts in his amended
complaint (see id. ¶¶ 253–69), it appears that he is seeking to have this Court exercise
supplemental jurisdiction over these claims under 28 U.S.C. § 1367. That statute
provides federal courts with the authority to exercise supplemental (or “pendent”)
jurisdiction over state law claims that “form part of the same case or controversy” as
claims over which the courts have original jurisdiction. 28 U.S.C. § 1367(a). However,
and significantly for present purposes, the statute also provides that “district courts may
decline to exercise supplemental jurisdiction over” such claims if “the district court has
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dismissed all claims over which it has original jurisdiction[.]” Id. § 1367(c)(3); see
also Shekoyan v. Sibley Int’l, 409 F.3d 414, 423 (D.C. Cir. 2005) (“A district court may
choose to retain jurisdiction over, or dismiss, pendent state law claims after federal
claims are dismissed.”); id. (“‘[P]endent jurisdiction is a doctrine of discretion, not of a
plaintiff’s right.’” (alteration in original) (quoting United Mine Workers of Am. v.
Gibbs, 383 U.S. 715, 726 (1966))). The Supreme Court has long held that “‘[i]n the
usual case in which all federal-law claims are dismissed before trial, the balance of
factors to be considered under the pendent jurisdiction doctrine—judicial economy,
convenience, fairness, and comity—will point toward declining to exercise jurisdiction
over the remaining state-law claims.’” Shekoyan, 409 F.3d at 424 (quoting Carnegie-
Melon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988)).
Such is the case here. This Court has already concluded that Lattisaw’s federal
claims against Defendants must be dismissed. Moreover, this matter is at an early stage
procedurally, and this Court sees no likelihood of undue inconvenience or unfairness to
the parties due to the Court’s decision to decline to exercise supplemental jurisdiction
over Lattisaw’s state law claims. See Jones v. D.C. Water & Sewer Auth., 922 F. Supp.
2d at 43. Therefore, this Court will dismiss Lattisaw’s DCHRA and common law
claims (Counts V through VIII) without prejudice, leaving Lattisaw free to bring such
claims in the appropriate state forum, to the extent they are not otherwise barred under
state law. See, e.g., FiberLight, LLC v. Nat’l R.R. Passenger Corp., No. 13-cv-1138,
2015 WL 871101, at *17 (D.D.C. Mar. 2, 2015) (declining to exercise supplemental
jurisdiction over plaintiff’s state law breach of contract claim).
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IV. CONCLUSION
Lattisaw has filed a lengthy amended complaint that relates various events
regarding his former employment circumstances. Although his allegations (if true) are
serious and substantial, there are threshold issues of law that prevent Lattisaw from
proceeding to seek a remedy in this Court. Specifically, for the reasons set forth above,
most of Lattisaw’s federal civil rights claims are time barred, and for this reason and
others, he has failed to state any federal claims upon which relief can be granted.
Furthermore, this Court declines to exercise supplemental jurisdiction over the
remaining state law claims in the absence of any valid federal cause of action.
Consequently, as set forth in the separate order accompanying this memorandum
opinion, Defendants’ motion to dismiss will be GRANTED, and the amended complaint
will be DISMISSED in its entirety.
DATE: July 28, 2015 Ketanji Brown Jackson
KETANJI BROWN JACKSON
United States District Judge
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