McCrea v. District of Columbia

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
NICOLE RENA MCCREA, )
)
Plaintiff, )
)
v. ) Civil Action No. 16-cv-0808 (TSC)
)
DISTRICT OF COLUMBIA, et al., )
)
Defendants. )
)
MEMORANDUM OPINION
Pro se Plaintiff Nicole McCrea is a former firefighter with the District of Columbia Fire
and Emergency Medical Services Department (EMS). She alleges that two fellow firefighters
sexually assaulted her while she was on duty. (ECF No. 68, 2d Am. Compl. ¶¶ 1-4.) She claims
that although she reported the incident, EMS managers, city employees and mental health
professionals conspired to deny her requests to classify her subsequent behavioral health
challenges as job-related injuries and to force her into retirement.
Various defendants have filed the following motions:
1) Council of the District of Columbia’s Motion to Dismiss (ECF No. 75);
2) Police and Fire Clinic Associates, LLC (“PFC”), Dr. Olusola Malomo, Dr. Raquel
Gordon and Dr. Marc Cottrell’s Motion to Dismiss (ECF No. 71); and
3) Lois Hochhauser’s Motion to Dismiss (ECF No. 69).
For the reasons set forth below, the court will GRANT all three Motions to Dismiss. 1
1
The court previously entered an Order granting the motions to dismiss. (See ECF No. 197.)
This Memorandum Opinion explains the court’s reasons for that Order.
Page 1 of 40
A. BACKGROUND
1. Factual Background 2
McCrea alleges that while at work at the fire station on or around May 30, 2013, she was
awakened “by aggressive movement and touching along her inner thigh.” (SAC ¶¶ 1-2.) 3 She
jumped in response and “the hand” fell “down, in between her legs,” at which time she noticed
movement near her bed and saw two individuals, one of whom she recognized as a co-worker,
and the other whom she could not identify. (Id. ¶¶ 2-3.) She then saw another co-worker using
his cell phone as a flashlight as he approached her bed and began reaching for her covers. (Id. ¶
4.) When he saw McCrea staring at him he jumped and then retreated. (Id. ¶ 4.) McCrea
reported the incident to Fire Department officials. (Id. ¶ 5.)
McCrea subsequently began experiencing stress, along with other cognitive and physical
symptoms, and was placed on medical leave in June. (Id. ¶¶ 11-13, 15.) She was later diagnosed
with acute stress reaction and sought to have her symptoms treated as “performance on duty”
(“POD”) injuries. Her request was denied, and she administratively appealed the decision. (Id.
¶¶ 15-18, 20.)
In October, McCrea’s physician diagnosed her with Post Traumatic Stress Disorder, and
on January 8, 2014, approved her request to return to light duty. (See id. ¶¶ 26-27, 30, 33.)
Although the details are unclear, McCrea claims she subsequently completed all training
prerequisites for returning to work but was “administratively barred” from doing so when she
2
In considering a motion to dismiss for failure to state a claim, the court must “accept the
factual allegations in the complaint as true” and grant plaintiff “the benefit of all reasonable
inferences derived from the facts alleged.” Bregman v. Perles, 747 F.3d 873, 875 (D.C. Cir.
2014).
3
The operative complaint is the Second Amended Complaint (hereinafter “SAC”). (See ECF
No. 68).
Page 2 of 40
sought recertification credentials from the training academy. (Id. ¶ 34.) McCrea alleges that she
was “forced” to attend “monitoring sessions” with PFC psychologist Dr. Raquel Gordon. (Id. ¶
35.)
In March, McCrea learned that her appeal of the non-POD decision had been denied and
she was ordered to report for recertification training. (Id. ¶¶ 37-39, 41.) It is unclear whether, as
she asserts, EMS ultimately approved her recertification training, but she claims that during this
time she recovered “deleted” files confirming that she had previously satisfied the training
requirements. (Id. ¶¶ 41-42.)
McCrea alleges that around this time, Dr. Gordon issued a psychological report requiring
her to undergo a battery of psychological tests. (Id. ¶¶ 43-45.) When she protested, McCrea was
told that the testing was a Fitness for Duty examination. (Id. ¶ 45.) Still not allowed to return to
work, McCrea requested advance sick leave, but it appears her request was denied. (See id. ¶
44.) At some point, she received a letter regarding FMLA leave and claims she was told she
should “accept” such leave to avoid unspecified disciplinary action. (Id. ¶ 56.)
Under protest, McCrea submitted to a psychological assessment by Dr. Gloria Morote (a
Clinical Neuropsychologist at PFC) on March 31, 2014. (Id. ¶¶ 45, 54.) On May 1, 2014, Dr.
Morote, Michael Donlon (Battalion Fire Chief and Medical Services Officer), and William B.
Sarvis, Jr. (Police Department Director of Medical Services), submitted a report to the District of
Columbia Police and Firefighters’ Retirement and Relief Board (the “Board”) recommending
McCrea’s involuntary non-POD disability retirement. (SAC ¶ 59; SAC, Attachment D.) 4 The
report outlined McCrea’s history, explained the results of her psychological tests, indicated that
4
On a motion to dismiss under Rule 12(b)(6), the court may, in addition to the facts alleged in
the complaint, also consider “any documents either attached to or incorporated in the complaint
and matters of which [the Court] may take judicial notice.” E.E.O.C. v. St. Francis Xavier
Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997) (alteration in the original).
Page 3 of 40
she had been on leave in less than full duty status since June 2013 and concluded that she was
suffering from “unspecified anxiety disorder” that prevented her from returning to “performance
of full duty.” (SAC, Attachment D at 4, 7-8.)
Despite the recommendation, McCrea repeatedly sought permission to return to work
with “reasonable accommodations” as set forth by her treating physicians, but EMS required her
to return to PFC for evaluation before it decided on her request. (SAC ¶¶ 75, 81-3.) McCrea
acquiesced and signed a waiver allowing PFC to obtain information from her treating physician.
(Id. ¶ 81.) She contends that PFC’s Dr. Marc Cottrell “breached the stipulated constraints of the
authorization” by demanding access to her “private records,” as well as her treating physician’s
diagnosis and treatment protocols. (Id. ¶ 83.) When McCrea met with Dr. Cottrell, he explained
that her ability to return to work depended on her treating physician answering specific written
questions. (Id. ¶ 85.) McCrea refused to refer the questions to her physician, claiming that
Cottrell’s inquiries violated the Americans with Disabilities Act (“ADA”) and the Health
Insurance Portability and Accountability Act (“HIPAA”). (Id.)
In November, McCrea attended her first Board hearing on the proposed involuntary
retirement. (SAC ¶ 87.) Over the next few months, the Board held another hearing and
informed McCrea that she could not return to work if she did not provide PFC the requested
information. (Id. ¶¶ 92, 97-98.)
Around this time, Dr. Morote submitted an affidavit to the Board confirming her previous
psychological assessment of McCrea and, at the third and final Board hearing on February 12,
2015, testified that her assessment remained unchanged, despite having reviewed evidence from
McCrea’s treating physician. (SAC ¶¶ 93-94; SAC, Attachment E at 14-15). At that hearing,
McCrea reiterated her belief that further medical inquiries violated her rights and challenged
PFC’s assessments. (SAC ¶ 99; see SAC, Attachment E at 14-15.) On April 30, 2015, the Board
Page 4 of 40
issued a decision ordering McCrea’s involuntary retirement due to a non-POD disability. (SAC
¶ 108.) It found that McCrea’s “paranoia and distrust is so pervasive that” she “could no longer
work effectively with a team,” thereby posing “a risk to herself and to the public” because she
could not perform the “full duties of a firefighter.” McCrea v. D.C. Police & Firefighters’ Ret.
& Relief Bd., 199 A.3d 208, 211 (D.C.), cert. denied, 140 S. Ct. 85 (2019).
In this case McCrea challenges the Board’s decisions to deny her accommodations
requests, classify her ailments as non-POD injuries, and force her to retire. She does not explain
what type of accommodations she requested or how they might have allowed her to perform her
job duties. She also challenges the legality of actions taken by PFC, the Mayor, EMS
employees, numerous other D.C. employees and the D.C. Council, all of whom she contends
conspired against her.
2. Procedural History
McCrea filed her initial Complaint on April 29, 2016. (ECF No. 1.) Shortly thereafter,
the court entered its notice to pro se parties advising her that she faced dismissal of her claims if
she failed to comply with the Federal Rules of Civil Procedure, this court’s Local Civil Rules
and the court’s orders. (ECF No. 2.) In September 2016, the court ordered McCrea to amend
her Complaint because it did not comply with Federal Rule of Civil Procedure 8(a). (ECF No.
10.) McCrea had named some individuals and their agencies in the Complaint but failed to
indicate whether she asserted claims against the individuals in their individual capacities, their
official capacities, or both. McCrea also named some individuals and agencies in the caption of
her case but did not include any factual allegations about them in the Complaint. She also made
allegations against certain individuals in her Complaint but did not name them as defendants in
the caption. The court listed the relevant Defendants in its Order and identified the specific Rule
8(a) problem associated with each. After seeking multiple extensions, McCrea filed an
Page 5 of 40
Amended Complaint that was approximately twenty pages longer than the original version, but
no more elucidating. (See ECF No. 23).
Several Defendants filed motions to dismiss. In response, McCrea referenced a different
Complaint she had delivered to the Clerk’s office, but which had not been docketed, and the
court therefore struck her responses because they were based on a Complaint that did not appear
in the record and McCrea had not sought leave to amend. (See 1/24/17 Min. Order; 1/25/17 Min.
Order.)
At a hearing on April 20, 2017, the court granted McCrea’s request to file a SAC. (ECF
No. 61, Tr. 13.) During the hearing, the court explained to McCrea that her proposed SAC must
indicate which claims are asserted against which Defendants and the actions each Defendant
took, as well as the capacity in which the Defendants were being sued. (Id. at 4, 7, 16.)
Although McCrea indicated that she had already begun drafting the SAC, the court gave her
more than thirty additional days to file the SAC. (Id. at 11, 16.) One day after the deadline,
McCrea filed a motion requesting an extension of several days. (ECF No. 38.) Although
McCrea did not explain her reasons for needing an extension, the court gave her six additional
days beyond those she requested, making her SAC due June 1, 2017. (Id.; May 24, 2017 Min.
Order.)
More than eleven days after the deadline, the court dismissed this action because McCrea
had not filed the SAC nor sought an extension of the deadline. (Id.) Rather than file a motion to
reconsider, McCrea filed a notice of appeal. (ECF No. 43.) Two months later, while the appeal
was pending, she filed a Motion for Relief from Judgment, asking the court to reopen her case.
(ECF No. 51.) The court granted the motion but reminded her of the deficiencies it had
previously pointed out. (ECF No. 66.)
Page 6 of 40
McCrea subsequently filed the SAC, but it is not a model of clarity or brevity at fifty-
seven pages (thirteen pages longer than the last version), including approximately 170 numbered
and lettered paragraphs. (ECF No. 68.) 5 Although the SAC contains a “claim for relief” section,
roughly twenty-six federal and state claims are scattered throughout the pleading. 6 Moreover,
5
The SAC contains four sections, but two of them are numbered “3”: one section is labeled as
the fact section and one is labeled as the “Cause of Action or Claim for Relief” section. Each
section contains numbered paragraphs and, in some instances, lettered subparagraphs. To avoid
confusion, the court will cite to the first section, containing the factual allegations, as “SAC”
followed by the appropriate paragraph (¶) number or page (p.) number. (See SAC pp. 10-46.)
The section “3” containing the causes of action will be referred to as “SAC COA,” followed by
the appropriate paragraph or page number. (See SAC COA pp. 46-57.)
6
McCrea appears to bring the following claims:
1. 42 U.S.C. § 1983 (civil conspiracy). (SAC COA ¶ 1)
2. 42 U.S.C. § 1985 (conspiracy to interfere with civil rights & the Americans with
Disabilities Act). (SAC COA ¶ 2)
3. 42 U.S.C. § 1983 (constructive discharge & Americans with Disabilities Act).
(SAC COA ¶ 3)
4. First Amendment (free speech and retaliation). (SAC COA ¶¶ 3(b) – (c), (e); 7(b)
5. The Americans with Disabilities Act. (SAC COA ¶ 4; pp. 52-56)
6. 42 U.S.C. § 1983 (medical malpractice & Americans with Disabilities Act).
(SAC COA ¶ 4)
7. 42 U.S.C. § 1983 (medical negligence-informed consent & Americans with
Disabilities Act). (SAC COA ¶ 5)
8. 42 U.S.C. § 1983 (Fourth Amendment invasion of privacy & Americans with
Disabilities Act). (SAC COA ¶¶ 6)
9. 42 U.S.C. § 1983 (defamation of character). (SAC COA ¶ 7)
10. Fifth Amendment (violation of property interest). (SAC COA ¶ 7(e))
11. 42 U.S.C. § 1983 (fraudulent misrepresentation & medical malpractice). (SAC
COA ¶ 8.)
Page 7 of 40
despite numerous orders from this court specifically reminding her of the deficiencies in the
original Complaint, she largely fails to identify which claims she asserts against which of the
approximately twenty-seven Defendants. 7 (See SAC COA pp. 46-56.)
12. 42 U.S.C. § 1983 (criminal, common law fraud and fraud on the court). (SAC
COA ¶9)
13. 42 U.S.C. § 1983 (fraudulent misrepresentation & spoliation or fabrication of
evidence). (SAC COA ¶ 10)
14. 42 U.S.C. § 1983 (fraudulent misrepresentation & forgery). (SAC COA ¶ 11)
15. 42 U.S.C. § 1983 (fraudulent misrepresentation & utterance of fraud). (SAC
COA ¶ 12)
16. 42 U.S.C. § 1983 (intentional infliction of emotional distress). (SAC COA ¶ 13)
17. 42 U.S.C. § 1983 (negligent infliction of emotional distress). (SAC COA ¶ 14)
18. 42 U.S.C. § 1983 (tortious interference). (SAC COA ¶ 15)
19. 42 U.S.C. § 1983 (Fifth Amendment substantive due process) (SAC COA ¶ 16;
pp. 54-55)
20. 42 U.S.C. § 1983 (Fifth Amendment procedural due process) (SAC COA ¶ 17;
pp. 54-55)
21. Supremacy Clause (preemption: Americans with Disabilities Act & Rehabilitation
Act) (SAC COA pp. 52-55)
22. 42 U.S.C. § 1983 (Fifth Amendment equal protection) (SAC COA ¶ 19)
23. Americans with Disabilities Act/Rehabilitation Act (SAC COA ¶ 20)
24. 42 U.S.C. § 1983 (negligence) (SAC COA ¶ 21)
25. 42 U.S.C. § 1981 (Equal Rights under the law) (SAC COA ¶ 22)
26. Health Insurance Portability and Accountability Act
7
Except in one instance where she associates the D.C. Council with a specific claim, McCrea
repeatedly alleges that “Defendants” collectively violated each listed law. Her failure to identify
which claims she asserts against which Defendants is a deficiency that has led several courts to
admonish her and/or grant defendants’ dispositive motions. McCrea v. Wells Fargo, No. CV
Page 8 of 40
McCrea seeks money damages, an order directing the D.C. City Council to cease
enforcing its firefighter retirement regulations, costs and fees associated with bringing this
action, as well as costs and fees related to bringing her numerous administrative proceedings and
appeals. 8 (See SAC COA pp. 56-57.) After Defendants filed their motions to dismiss, the court
issued orders advising McCrea that her failure to respond to the arguments the Defendants raised
in their motions might result in the court treating the arguments as conceded. (ECF Nos. 73, 74,
77, 80); see Local Civil Rule 7(b).
This Memorandum Opinion addresses the motions to dismiss filed by the D.C. Council,
PFC defendants and Lois Hochhauser; a separate opinion will address the motions filed by the
remaining D.C. defendants.
B. STANDARD OF REVIEW
A motion to dismiss under Fed. R. Civ. P. 12(b)(6) for failure to state a claim tests the
legal sufficiency of a complaint. See Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678,
RDB-18-2490, 2019 WL 2513770, at *5 (D. Md. June 17, 2019) (“Plaintiff’s Complaint is a
textbook case of impermissible shotgun pleading. McCrea’s Complaint presents 85 paragraphs
of factual allegations under the heading ‘Statement of Claim,’ culminating, without further
elaboration, in a list [of] over twenty causes of action.”); McCrea v. Johns Hopkins Universities,
No. JKB-15-0579, 2016 WL 6166999, at *4 n.4 (D. Md. Oct. 24, 2016) (“The Complaint listed
only alleged facts combined with conclusory statements about the presence of discriminatory
intent. In response to the Court’s order, Plaintiff provided a “more definite statement,” in which
she alleged violations of the seven statutes listed above but did not articulate which of
Defendants’ actions she alleged to violate which statutes.”) (citation to the record omitted).
8
McCrea unsuccessfully pursued administrative discrimination claims, as well as judicial
review of the Board’s decision. (SAC, Attachment F); McCrea v. D.C. Police & Firefighters'
Ret. & Relief Bd., 199 A.3d 208, 209 (D.C. 2019). She also filed internal complaints against
several EMS co-workers and supervisors. (See SAC ¶¶ 10, 17, 18, 73, 76, 79.)
Page 9 of 40
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible
when the facts alleged allow the court to “draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. McCrea’s factual allegations need not be “detailed,” but
“the Federal Rules demand more than ‘an unadorned, the-defendant-unlawfully-harmed-me
accusation.’” McNair v. District of Columbia, 213 F. Supp. 3d 81, 86 (D.D.C. 2016) (citing
Twombly, 550 U.S. at 570).
Pro se complaints, “however unartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers,” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting
Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Nonetheless, a pro se plaintiff must still “plead
factual matter that permits the court to infer more than the mere possibility of misconduct.”
Atherton v. D.C. Office of Mayor, 567 F.3d 672, 681-82 (D.C. Cir. 2009) (quoting Iqbal, 556
U.S. at 679).
C. ANALYSIS
1. D.C. City Council and the Police and Firefighters’ Retirement and Disability Act
McCrea alleges that the D.C. City Council’s enactment of D.C. Code Sections §§ 5-633,
5-634, 5-701, 5-709, and 5-710 violated the ADA, the Rehabilitation Act and the U.S.
Constitution’s Due Process and Equal Protection clauses. (SAC COA ¶ 18.) The challenged
provisions from the Police and Firefighters’ Retirement and Disability Act (PFRDA), D.C. Code
§ 5–701 et seq., relate to leave for police and firefighters suffering from POD and non-POD
injuries, as well the circumstances under which the District may force injured officers and
firefighters to retire. McCrea brings claims directly against the City Council and seeks an
injunction preventing it from “enforcing involuntary retirement of qualified” firefighters, as well
as restoring her sick and annual leave. (SAC COA pp. 56-57.)
Page 10 of 40
A. Legislative Immunity
The D.C. City Council argues that it is entitled to legislative immunity under the
District’s Speech or Debate Statute, which provides that “[f]or any speech or debate made in the
course of their legislative duties, the members of the Council shall not be questioned in any other
place.” D.C. Code § 1–301.42.
“Legislative duties” shall include the responsibilities of each member of the
Council in the exercise of such member’s functions as a legislative representative,
including but not limited to: Everything said, written or done during legislative
sessions, meetings, or investigations of the Council or any committee of the
Council, and everything said, written, or done in the process of drafting and
publishing legislation and legislative reports.
D.C. Code § 1-301.41(b).
McCrea concedes that legislative immunity is a complete bar to judicial review and that
the Speech or Debate clause should be construed broadly. (ECF No. 88, Pls. Resp. at 5.) She
argues, however, that because the Council enacted the D.C. Code provisions to assist the Board
after it lost a legal challenge to the forced disability retirement of a firefighter, it is not protected
by legislative immunity. (Id. at 5-6) (citing Adgerson v. Police & Firefighters’ Ret. & Relief Bd.,
73 A.3d 985, 992 (D.C. 2013) (discussing revision of the firefighter disability retirement
provisions in response to a court ruling vacating and remanding the Board’s decision in
Alexander v. D.C. Police & Firefighters’ Ret. & Relief Bd., 783 A.2d 155, 157 (D.C. 2001)).
But the Council does not lose its legislative immunity because it amends legislation in
response to an adverse legal ruling. The Council amended the mandatory retirement provisions
to “increase the number of police officers and firefighters on full duty in the respective
departments” after determining that staffing levels were a “major concern for District policy
makers” because “not having a fully staffed fire and police department” prevented the District
from achieving public safety goals such as “reducing emergency ambulance response time.” Bill
Page 11 of 40
15-32, Council of the District of Columbia Report, at 16 (Dec. 9, 2003). As such, the new
legislation “reformed the area of medical leave and limited duty to increase the number of police
officers and firefighters on full duty in their respective departments.” Id. at 16-17.
Amending a law to improve public safety is a protected legislative function, even where
the impetus for the amendment is an adverse judicial ruling, and McCrea cites no case law
suggesting otherwise. While she cites cases involving legislators who were not protected by the
Speech or Debate Clause, those cases involved very different facts. (See ECF No. 88, Pls. Resp.
at 4-5.) 9
McCrea argues that the Council is not entitled to legislative immunity because the
amendments to the D.C. Code provisions were “administrative,” rather than legislative, as they
were directed at a particular “employee or employees.” (ECF No. 88, Pls. Resp. at 6-7.) “A
personnel decision is administrative in nature if it is directed at a particular employee or
employees, and is not part of a broader legislative policy.” Almonte v. City of Long Beach, 478
F.3d 100, 108 (2d Cir. 2007) (citing Bogan v. Scott–Harris, 523 U.S. 44, 54 (1998)); see Gross v.
Winter, 876 F.2d 165, 169-70 (D.C. Cir. 1989) (D.C. Council member who terminated an
employee who complained of discrimination was not protected by legislative immunity).
McCrea’s argument fails. Amendments like the one here—involving police and
firefighter leave and benefits—derive from broad legislative policies such as public safety, that
9
McCrea incorrectly relies on cases such as Hutchinson v. Proxmire, 443 U.S. 111, 122, n.10
(1979) (finding that negative comments made on the floor of Congress about plaintiff’s research
were protected by the Speech or Debate clause, but were not protected when made during
subsequent telephone calls to executive agencies for the alleged purpose of influencing the
agencies to cease funding plaintiff’s research), and Gravel v. United States, 408 U.S. 606, 625
(1972) (finding that Congressman’s conduct during a subcommittee hearing was protected by the
Speech or Debate clause, but not his subsequent agreement to disclose confidential documents to
a publisher for public dissemination, because such conduct was not “an integral part of the
deliberative and communicative processes” of Congress).
Page 12 of 40
“reach well beyond the particular occupant of the office.” See Almonte, 478 F.3d at 108. In
contrast, the cases upon which McCrea relies did not involve enactment of “general policies,”
but instead involved conduct that illegally targeted particular individuals. (See ECF No. 88, Pls.
Resp. at 6-8) 10
McCrea’s third argument—that legislative immunity does not protect the City Council
from conduct that violates Title VII or the Age Discrimination in Employment Act, (see ECF
No. 88, Pls. Resp. at 6-8), is misplaced because she was not employed by the Council.
Because McCrea has failed to assert facts that would overcome the Council’s immunity
defense, the court will grant the Council’s motion to dismiss with prejudice and treat McCrea’s
preemption claim as asserted against the District of Columbia.
B. Preemption
McCrea also argues that the challenged PFRDA provisions violate the ADA, 42 U.S.C. §
12112, et seq., as well as the Rehabilitation Act, 29 U.S.C. § 791 et seq., and are therefore
preempted. (See ECF No. 88, Pls. Resp. at 8.) This argument is without merit.
As an initial matter, McCrea’s preemption claim does not satisfy Federal Rule of Civil
Procedure 8’s requirements. While the court recognizes that complaints filed by pro se litigants
are held to less stringent standards than those applied to formal pleadings drafted by lawyers, see
Haines v. Kerner, 404 U.S. 519, 520 (1972), even pro se litigants must comply with the Federal
Rules of Civil Procedure. Jarrell v. Tisch, 656 F. Supp. 237, 239 (D.D.C. 1987). Federal Rule
10
McCrea incorrectly relies on cases such as Acevedo-Garcia v. Vera-Monroig, 204 F.3d 1, 9
(1st Cir. 2000) (affirming denial of summary judgment for municipality on absolute immunity
grounds where enactment of city ordinances reflected discretionary policy decisions, but the
implementation of the ordinances through layoffs of political opponents reflected administrative
functions), and Canary v. Osborn, 211 F.3d 324, 324 (6th Cir. 2000) (affirming denial of
summary judgment for municipality where it adopted a resolution terminating employee
whistleblowers).
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of Civil Procedure 8(a) requires that complaints contain “a short and plain statement of the claim
showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a), so that the defendant receives
“fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555–56 (2007) (citation and alterations omitted).
McCrea has not met this standard. She does not point to any provision in the ADA or the
Rehabilitation Act which purportedly preempts the challenged D.C. Code provisions, and
therefore the District cannot discern the grounds upon which McCrea’s claim rests. See Williams
v. Brennan, 285 F. Supp. 3d 1, 5 (D.D.C. 2017) (“Where a complaint is insufficiently focused, it
places an undue burden on the defendant to answer or move, and it invites unnecessary delay and
confusion in the proceedings.”) (citation and alteration omitted). 11
McCrea’s preemption claim also fails substantively. “A fundamental principle of the
Constitution is that Congress has the power to preempt state law.” Crosby v. Nat’l Foreign
Trade Council, 530 U.S. 363, 372 (2000) (citations omitted). “[T]he ADA does not contain an
express preemption provision.” Rubietta v. National R.R. Passenger Corp., No. 08 Civ. 7117,
2012 WL 345909, at *4 (N.D. Ill. Jan. 30, 2012). In the absence of an express preemption
provision, the Supreme Court has found that
state law must yield to a congressional Act in at least two circumstances. When
Congress intends federal law to “occupy the field,” state law in that area is
preempted. And even if Congress has not occupied the field, state law is naturally
preempted to the extent of any conflict with a federal statute.
Crosby, 530 U.S. at 372 (2000) (citations omitted). In other words, preemption occurs
“where it is impossible for a . . . party to comply with both state and federal law.” Id. at
372-3 (citation omitted).
11
Likewise, McCrea does not proffer any facts or direct the court to any provision of the ADA
or Rehabilitation Act supporting her allegation that these statutes violate the due process or equal
protection clauses.
Page 14 of 40
Applying these principles, the court rejects McCrea’s argument that the challenged
PFRDA provisions are preempted. The ADA prohibits employers from discriminating “against a
qualified individual with a disability because of that disability.” 42 U.S.C. § 12112(b)(5)(A).
“The term ‘qualified individual’ means an individual who, with or without reasonable
accommodation, can perform the essential functions of the employment position that such
individual holds or desires. . . .” 42 U.S.C. § 12111(8). 12
The PFRDA provisions at issue do not conflict with the ADA, nor do they create “an
obstacle to the accomplishment and execution of the full purposes and objectives,” see Crosby,
530 U.S. at 372, of the statute. Pursuant to D.C. Code § 5-634, firefighters like McCrea, who
have non-POD injuries, “shall” be recommended for retirement if, after “consultation with the
Police and Fire Clinic physicians,” the EMS determines that the firefighter will “not be able to
perform the full range of duties after achieving maximum medical improvement.” D.C. Code §
5-634(b). Even where it is expected that the firefighter “will be able to perform the full range of
duties after achieving maximum medical improvement,” the EMS “shall process” the firefighter
for retirement if the employee spends “64 cumulative work days in a less-than-full-duty status
over any 2-year period as a result of any one non-performance-of-duty injury or illness,
including any complications relating to the injury or illness.” D.C. Code § 5-634(d). The Code
defines “full range of duties” as
the ability of a member to perform all of the essential functions of police work or
fire suppression as determined by the established policies and procedures of the
Metropolitan Police Department or the Fire and Emergency Medical Services
Department, and to meet the [relevant] physical examination and physical agility
standards . . . .
12
“The standards used to determine whether [the Rehabilitation Act] has been violated in a
complaint alleging employment discrimination . . . shall be the standards applied under [certain
provisions of] the Americans with Disabilities Act.” Breen v. Dep’t of Transp., 282 F.3d 839,
841 (D.C. Cir. 2002) (quoting 29 U.S.C. § 794(d)).
Page 15 of 40
D.C. Code § 5-631.
The retirement provisions at issue do not prevent firefighters from seeking
reasonable accommodations under the ADA in order to perform the essential functions of
their jobs. The provisions simply require the District to remove injured police officers
and firefighters—like McCrea—from the employment rolls if they cannot perform their
full range of duties (even with accommodations) and are on leave for more than two
consecutive months. Accordingly, the challenged PFRDA provisions do not conflict with
the ADA or Rehabilitation Act and are not preempted. 13
2. PFC Associates Defendants
A. Individual PFC Defendants
Defendants Dr. Olusola Malomo, Dr. Raquel Gordon, and Dr. Marc Cottrell are
employees of defendant Police and Fire Clinic Associates, LLC (PFC), a private contractor that
evaluated McCrea and concluded that her condition prevented her from returning to full duty.
(See ECF 71, PFC Mot. to Dismiss). In her SAC, McCrea asserts a litany of allegations
regarding these Defendants, but identifies few, if any, legal theories to support her claims. The
court agrees with these individual defendants that McCrea has failed to satisfy the notice
pleading requirements of Rule 8.
13
The other PFRDA provision McCrea challenges, § 5-709 (setting forth the formula for
calculating non-POD retirement benefits), is likewise not preempted. She also challenges D.C.
Code Sections 5-633 and 5-710, which relate to involuntary retirement of police and firefighters
due to POD related injuries. These two provisions are inapplicable because EMS determined
that McCrea’s illness was non-POD.
As discussed in this court’s opinion addressing McCrea’s claims against the District of
Columbia, her ADA and Rehabilitation Act reasonable accommodations claims survive the
District’s motion to dismiss.
Page 16 of 40
Moreover, in response to Defendants’ Rule 8 argument, McCrea asserts, without
explanation, that “there is factual content detailing the actions and/or lack of actions of
Defendants” in her June 13, 2017 Motion for Relief from Judgement and the SAC. (ECF No. 90,
Pls. Resp. at 6) (citing ECF No. 51.) She then directs the court to the exhibits, totaling 103
pages, attached to her opposition to the motion to dismiss, but provides no pinpoint citations.
(ECF No. 90, Pls. Resp. at 6.) 14
McCrea’s response is inadequate. Her SAC is long, repetitive, rambling, and does not
indicate which factual allegations support which claims. It fails to meet the standard of Federal
Rule of Civil Procedure 8, which is intended to ensure that defendants receive fair notice of the
claims against them. See O’Diah v. Cordray, No. CV 17-966 (UNA), 2017 WL 2735549, at *1
(D.D.C. June 23, 2017), aff’d, 707 F. Appx 5 (D.C. Cir. 2017) (citation omitted).
Given McCrea’s pro se status, however, the court reviewed her Motion for Relief from
Judgment, 15 SAC, and her response to PFC’s motion in an effort to determine the viability of
any claims against the PFC defendants. These pleadings do not indicate what cause of action
might possibly apply to Dr. Malomo. 16
14
McCrea repeatedly provided the same response to PFC’s arguments: “There is factual content
detailing the actions and/or lack of actions of Defendants in” her June 13, 2017 Motion for Relief
from Judgement and the SAC. (See e.g., ECF No. 90, Pls. Resp. at 7, 9, 12, 14, 28.)
15
McCrea’s Motion for Relief from Judgment, a twenty-nine-page brief containing disjointed
and sometimes irrelevant arguments, to which she attached 191 pages of exhibits, provides no
insight into or support for her arguments.
16
McCrea asserts the following: 1) She sought permission from Dr. Malomo to return to work;
2) Dr. Malomo diagnosed her with PTSD; 3) Dr. Malomo authorized McCrea to attend
rehabilitation counseling outside of EMS, which she did on at least one occasion; 4) Dr. Malomo
received the final PFC report which concluded that McCrea could not return to full duty; 5)
McCrea, Dr. Malomo, and others met to discuss McCrea’s “repeated requests” for
accommodations, but Dr. Malomo would not consider the request until McCrea’s treating
physician answered Dr. Cottrell’s questions about her condition. (SAC ¶¶ 30, 32, 57, 59, 61,
91.)
Page 17 of 40
McCrea’s allegations against Dr. Gordon boil down to two potential claims. First, that
Dr. Gordon engaged in unspecified “wanton” breaches of McCrea’s privacy that McCrea
“discovered” in the treatment notes. (See SAC ¶ 82.) While McCrea alleges that she saw Dr.
Gordon on numerous occasions, absent any information regarding what information was
allegedly disclosed, to whom and when, Dr. Gordon cannot prepare a response or assert
appropriate defenses to what appears to be an invasion of privacy claim, which also, as discussed
below, is time barred.
McCrea also contends that Dr. Gordon “fabricated” a report in which Gordon expressed
unsubstantiated concerns, as well as made fraudulent misrepresentations about McCrea’s
progress. (SAC ¶ 43.) This allegation is likewise not actionable without information regarding
the nature of the purported misrepresentations; as discussed below, fraud claims must be pled
with particularity. See Fed. R. Civ. P. 9(b). Moreover, there is no evidence McCrea relied on
any alleged misrepresentations, and this claim is also time barred. 17
Finally, without providing any supporting facts, McCrea claims that Dr. Cottrell
submitted unsubstantiated “concerns of safety and prejudicial inferences about Plaintiff” to the
17
McCrea also asserts the following with respect to Dr. Gordon: 1) She sought permission from
Dr. Gordon to return to work; 2) She reported to Dr. Gordon for “forced monitoring”; 3) Dr.
Gordon recorded McCrea’s progress towards full duty status; 4) McCrea complained about Dr.
Gordon’s “lack of integrity, lack of professionalism, and lack of ethics”; 5) McCrea submitted a
complaint to EMS regarding her continuing “forced monitoring” with Dr. Gordon; 6) after Dr.
Gordon “verbal[ly] rebuff[ed]” her, McCrea submitted reports from her treating physicians with
recommendations for workplace accommodations; 7) McCrea met with Drs. Gordon and Cottrell
about Dr. Gordon’s refusal to accept her return to work certification; and 8) McCrea’s forced
monitoring with Dr. Gordon was eventually terminated. (SAC ¶¶ 30, 35, 40, 43, 74, 75, 80, 82.)
Page 18 of 40
Board. 18 (SAC ¶ 95.) As discussed below, even if McCrea has alleged sufficient facts to support
a defamation claim, the claim would be time barred.
McCrea also claims that Dr. Cottrell violated the ADA and HIPAA, see 42 U.S.C. §
1320d-6, by seeking additional information from her treating physicians. As discussed below,
the ADA and Rehabilitation Act claims are not actionable because neither PFC nor Dr. Cottrell
were McCrea’s employers. McCrea’s HIPAA claims are not actionable because, inter alia, there
is no private cause of action for HIPAA violations.
For these reasons, the court will dismiss the claims asserted against Drs. Malomo,
Gordon, and Cottrell with prejudice.
B. PFC
With regard to the claims against PFC generally, the court agrees that McCrea’s SAC
does not satisfy Rule 8(a)’s requirements because it does not contain “a short and plain statement
of the claim showing that the pleader is entitled to relief,” and the few facts that she does plead
are insufficient to state a claim.
18
McCrea claims that: 1) after she submitted her second request for accommodations, Dr.
Cottrell insisted that he needed to confer with McCrea’s treating physicians, and McCrea signed
a form authorizing him to do so; 2) Dr. Cottrell requested information that exceeded the
authorization; 3) McCrea told Dr. Cottrell that she wanted a written “informed consent”
document outlining their relationship and her rights with respect to the forced monitoring; 4) Dr.
Cottrell told McCrea that he would not provide such a document and was unable to direct her to
anyone at PFC with whom she could discuss the matter; 5) Dr. Cottrell attempted to give
McCrea a list of questions her treating physician needed to answer before McCrea could return
to work, but she refused the list; 6) McCrea told Dr. Cottrell that his request for additional
information violated the ADA and HIPAA; 7) Dr. Cottrell ignored McCrea’s third request for
accommodations; 8) the Board told McCrea that her physicians must answer Dr. Cottrell’s
questions in order for her to be considered for return to work; and 9) the Board’s decision relied
on Dr. Cottrell’s report. (SAC ¶¶ 81- 85, 91, 93, 95, 97-98, 108.)
Page 19 of 40
1. ADA Reasonable Accommodations
While McCrea does not specify the ADA Title under which she seeks relief, the
substance of her allegations indicates that her claim is under Title I because she challenges EMS’
mandatory “unwarranted psychological assessments,” its failure to provide her with requested
accommodations, and its insistence on obtaining additional information from her treating
physicians. (See, e.g. SAC pp. 47-48, 55-56.)
PFC argues that because McCrea was not employed by PFC, she cannot sue it under Title
I, which applies solely to a “covered entity,” defined as “an employer, employment agency, labor
organization, or joint labor management committee.” Baron v. Dulinski, 928 F. Supp. 2d 38, 41
(D.D.C. 2013) (citing 42 U.S.C. § 12111(2)). McCrea did not respond to PFC’s argument on
this issue, and therefore, to the extent she asserts ADA Title I claims against PFC, the court will
treat those claims as conceded and will grant PFC’s motion to dismiss with prejudice. See Local
Civil Rule 7(b); Stephenson v. Cox, 223 F. Supp. 2d 119, 121 (D.D.C. 2002) (citing Sparrow v.
United Air Lines, Inc., 1999 U.S. Dist. LEXIS 22054, at *17 (D.D.C. July 23, 1999), overruled
on other grounds, 216 F.3d 1111 (D.C. Cir. 2000) (treating as conceded arguments the non-
movant failed to address in response to a motion to dismiss). 19
19
Although the Rehabilitation Act applies to employer-employee relationships, its reach is
broader than the ADA. Fleming v. Yuma Reg’l Med. Ctr., 587 F.3d 938, 941-42 (9th Cir. 2009).
The Rehabilitation Act “specifically defines the entities to which it applies, and does not address
employers.” Id. (citing 29 U.S.C. §§ 705(20), 794(a), (b)). For employee claims, the Act
provides that “[t]he standards used to determine whether this section has been violated . . . shall
be the standards applied under title I of the Americans with Disabilities Act . . . as such sections
relate to employment.” 29 U.S.C. § 794(d); Fleming, 587 F.3d at 940-41 (citing 941 42 U.S.C.
§§ 12111–17, 12201–04, 12210). Accordingly, McCrea’s Rehabilitation Act claim fails for the
same reason as her ADA claim.
Page 20 of 40
2. HIPAA 20
With respect to her HIPAA claim, McCrea admits that she signed a waiver allowing her
physicians to disclose medical information to PFC but claims that Dr. Cottrell sought
information beyond the limits of the waiver. (SAC ¶¶ 81-83.) This allegation does not state a
cognizable HIPPA claim. HIPPA “generally provides for confidentiality of medical records.”
Acara v. Banks, 470 F.3d 569, 571 (5th Cir. 2006) (citing 42 U.S.C. §§ 1320d–1 to d-7), and
McCrea points to no provision of HIPAA that precludes requests for medical information.
Moreover, HIPAA does not create a private right of action. Acara, 470 F.3d at 571; Hudes v.
Aetna Life Ins. Co., 806 F. Supp. 2d 180, 196 (D.D.C.2011), aff’d, 493 Fed. Appx. 107 (D.C.
Cir. 2012). Accordingly, the court will dismiss this claim with prejudice.
3. Section 1981
42 U.S.C. § 1981 “prohibits racial discrimination in the ‘making, performance,
modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms,
and conditions of the contractual relationship.’” Carney v. Am. Univ., 151 F.3d 1090, 1092–93
(D.C. Cir. 1998) (citing 42 U.S.C. § 1981(b)). PFC seeks dismissal of McCrea’s § 1981 claim
because she does not assert claims based on race. McCrea responds that she has “alleged several
overt actions taken by the defendants collectively with the [EMS] officials and the [Board] . . . to
force Plaintiff in Involuntary Non-POD Disability because of her membership in a protected
class African American.” (ECF No. 90, Pls. Resp. at 10.)
20
PFC did not address this claim; perhaps because although McCrea mentioned HIPAA in her
SAC, she did not list it in the cause of action section. The court exercises its discretion to
dismiss the claim sua sponte. See Neitzke v. Williams, 490 U.S. 319, 328-39 (1989) (discussing
the district court’s authority to dismiss claims sua sponte where the “factual contentions are
clearly baseless”).
Page 21 of 40
McCrea’s argument is unpersuasive. In her SAC, she mentions race twice, both times in
relation to actions by the D.C. Defendants. (SAC ¶ 7) (alleging a “race and sex debate about the
assault of a black female entertainer and the racially charged argument with Firefighter Michael
Harrison prior to her assault.”); (SAC ¶ 119; see ECF No. 90, Pls Resp. at 10; see SAC,
Attachment L-1, pp. 2, 6-7) (alleging that “similarly situated” White firefighters were treated
more favorably with respect to leave and/or retirement). McCrea’s challenges to her forced
monitoring, forced retirement and any alleged disparate treatment relate to EMS, not PFC.
PFC also argues that it has no contractual relationship with McCrea and therefore her §
1981 claim is not actionable. McCrea did not respond to this argument and there are no factual
allegations suggesting that she entered into a contract with PFC, which simply evaluated her at
EMS’ request and recommended mandatory retirement. Accordingly, the court will grant PFC’s
motion to dismiss the §1981 claim with prejudice.
4. State Law Claims
a. Defamation
McCrea contends that Defendants “published” to the Board unsupported psychological
assessments and characterizations that defamed and harmed her professionally and in her
community. (SAC COA ¶ 7; see also, SAC ¶¶ 43, 59, 94-95.) The statute of limitations for
defamation claims in the District of Columbia is one year. Coulibaly v. Kerry, 213 F. Supp. 3d
93, 130 (D.D.C. 2016) (citing D.C. Code § 12–301(4)); Mullin v. Wash. Free Weekly, Inc., 785
A.2d 296, 298 (D.C. 2001)). PFC argues that McCrea’s claim is time barred because she
contends that PFC submitted its last written evaluations of her to the Board in January 2015, see
SAC ¶¶ 93-95, but she did not file this lawsuit until more than a year later, on April 29, 2016.
Page 22 of 40
McCrea responds that her claim is saved by the continuous tort doctrine, arguing that the
limitations period began to run when the “alleged defamatory acts ended” on April 30, 2015 with
the Board’s retirement decision, “in concert” with PFC. (ECF No 90, Pls. Resp. at 22-23.) 21
Under District of Columbia law, “once the plaintiff has been placed on notice of an injury and of
the role of the defendants’ wrongful conduct in causing it, the policy disfavoring stale claims
makes application of the ‘continuous tort’ doctrine inappropriate.” Judd v. Resolution Tr. Corp.,
No. CIV.A.95-1074CKK/JMF, 1999 WL 1014964, at *6–7 (D.D.C. Aug. 17, 1999) (citing
Wallace v. Skadden, Arps, Slate, Meagher & Flom, 715 A.2d 873 (D.C. 1998)). Before it issued
its decision in April 2015, the Board held its second hearing in January 2015, during which Dr.
Morote reaffirmed her previous psychological assessments. The Board held its final hearing on
February 12, 2015, during which Dr. Morote testified that her assessments remained unchanged,
despite having reviewed evidence from McCrea’s treating physicians. (See SAC ¶¶ 93-94, 108-
9; SAC, Attachment E 14-15.) Thus, PFC’s role in the retirement decision process ended at the
February 2015 hearing, in which McCrea participated, not in April when the Board made its final
decision. Yet McCrea waited until April 2016, more than one year after the last hearing, to file
this lawsuit. Accordingly, she cannot rely on the continuing tort doctrine and her defamation
claim is untimely. (SAC, Attachment E 14-15.)
PFC also argues that McCrea’s claim should be dismissed because PFC’s psychological
assessments constitute opinions. To assert a defamation claim McCrea must allege, inter alia,
“that the defendant made a false and defamatory statement concerning” her. Armstrong v.
Thompson, 80 A.3d 177, 183 (D.C. 2013). “[W]hile statements of fact ‘may be the basis for a
21
McCrea asserts that the Board issued its decision on April 30, 2016, but the record and her
SAC show that the Board’s decision was made on April 30, 2015. (See SAC ¶ 109; see SAC,
Exhibit E, 4/30/15 Board Decision.)
Page 23 of 40
defamation claim, a statement of pure opinion cannot.’” Armstrong, 80 A.3d at 184 (quoting
Rosen v. American Israel Pub. Affairs Comm., Inc., 41 A.3d 1250, 1256 (D.C. 2012)) (some
citations omitted).
McCrea responds that the reports did not contain opinions, but instead contained “actual
facts” that were inaccurate and, therefore actionable. “A statement of opinion is actionable if—
but only if—‘it has an explicit or implicit factual foundation and is therefore objectively
verifiable.’” Armstrong, 80 A.3d at 184 (citation omitted). Psychological tests and evaluations
are, by their very nature, subjective, and McCrea provides no evidence to the contrary, nor does
she identify the allegedly defamatory or objectively verifiable material. Moreover, McCrea
conceded in her SAC that the assessments contained “grossly skewed, subjective” and “highly
subjective” “opinions” about her and her test results. (SAC ¶¶ 59, 94-95.) The court will
therefore grant PFC’s motion to dismiss McCrea’s defamation claim with prejudice.
b. Fraudulent Misrepresentation
McCrea also claims that PFC made fraudulent misrepresentations in their assessments.
(COA ¶¶ 8- 12; see SAC ¶¶ 43, 59, 94-95.) To state a claim for fraud in the District of
Columbia, McCrea must allege “(1) a false representation, (2) in reference to a material fact, (3)
made with knowledge of its falsity, (4) and with intent to deceive, (5) with action taken in
reliance upon the representation.” United States ex rel. Yelverton v. Fed. Ins. Co., 831 F.3d 585,
591 (D.C. Cir. 2016) (citation omitted); see also Friends Christian High Sch. v. Geneva Fin.
Consultants, 39 F. Supp. 3d 58, 64 (D.D.C. 2014) (quoting Atraqchi v. GUMC Unified Billing
Servs., 788 A.2d 559, 563 (D.C. 2002)). McCrea has not asserted facts indicating that she relied
on PFC’s alleged misrepresentations. Indeed, in her SAC, she repeatedly challenged PFC’s
findings, assessments and recommendations.
Page 24 of 40
McCrea also fails to assert facts that meet the Rule 9 pleading standard. Federal Rule of
Civil Procedure 9(b) requires the complaint to “state the time, place and content of the false
misrepresentations, the fact misrepresented and what was obtained or given up as a consequence
of the fraud.” Rodriguez v. Lab. Corp. of Am. Holdings, 13 F. Supp. 3d 121, 128–29 (D.D.C.
2014) (quoting United States ex rel. Joseph v. Cannon, 642 F.2d 1373, 1385 (D.C. Cir. 1981)).
With little to no explanation or citations to the record, she asserts in conclusory fashion that the
SAC “recounts with specificity Defendants increased the intensity in monitoring the Plaintiff
from 2013 into 2014, then by elevating the matter to an enforcement proceeding, that resulted in
the involuntary retirement.” (ECF No. 90, Pls. Resp 25-26.) This is insufficient to meet the
pleading standard.
Moreover, McCrea’s claim is time barred. Although “the D.C. Code does not explicitly
provide a statutory period for fraud claims, those claims are usually subject to a three-year
limitations” period. Dawn J. Bennett Holding, LLC v. FedEx TechConnect, Inc., 217 F. Supp. 3d
79, 83 (D.D.C. 2016), aff’d, No. 16-7144, 2017 WL 2373115 (D.C. Cir. Apr. 4, 2017) (citing §
12–301(8) (providing a three year limitation in circumstances where “a limitation is not
otherwise specifically prescribed.”); Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C. Cir. 1996)
(applying §12–301(8) to fraud claims)). “But the District does not resort to this [three-year]
default provision every time a plaintiff uses a label that does not precisely match a specific
statute of limitations. If a stated cause of action is ‘intertwined’ with one for which a limitations
period is prescribed, District courts apply the specifically stated period, not the three-year catch-
all.” Mittleman v. United States, 104 F.3d 410, 415 (D.C. Cir. 1997) (citing Saunders v. Nemati,
580 A.2d 660, 661–62 (D.C. App. 1990); Hunter v. District of Columbia, 943 F.2d 69, 71–72
(D.C. Cir. 1991)).
Page 25 of 40
McCrea’s allegations regarding PFC’s alleged misrepresentations also form the basis for
her defamation claims, and therefore the two are “intertwined.” (See COA ¶¶ 7- 12; see SAC ¶¶
43, 59, 94-95.) Consequently, the one-year limitations period for defamation claims also applies
to bar her fraudulent misrepresentation claim. See Mittleman, 104 F.3d 410 at 413, 415
(applying defamation one-year limitations period to false light invasion of privacy claims where
the facts of the two claims were intertwined). The court will dismiss this claim with prejudice.
c. Medical Malpractice
McCrea claims that PFC’s “fraudulent misrepresentations . . . constituted medical
malpractice.” (SAC COA ¶¶ 4-6, 8.) PFC moves to dismiss this claim because McCrea failed to
comply with the District’s notice requirement, which states: “Any person who intends to file an
action in the court alleging medical malpractice against a healthcare provider shall notify the
intended defendant of his or her action not less than 90 days prior to filing the action.” D.C.
Code § 16–2802(a). “A legal action alleging medical malpractice shall not be commenced in the
court unless the requirements of this section have been satisfied.” Diffenderfer v. United States,
656 F. Supp. 2d 137, 139 (D.D.C. 2009) (citing D.C. Code § 16–2802(c)) (emphasis omitted).
McCrea did not address PFC’s argument and her SAC does not indicate that she
complied with the notice requirement. Accordingly, the Court will grant PFC’s motion to
dismiss this claim with prejudice as conceded.
d. Invasion of Privacy
McCrea has asserted no facts supporting her invasion of privacy claim. She alleges that
PFC’s “unwarranted psychological assessments without cause,” Dr. Cottrell’s request to obtain
medical information from her treating physicians, and Dr. Gordon’s unspecified “wanton”
conduct amounted to invasions of privacy. (SAC COA ¶ 6; SAC ¶¶ 82, 84-85, 91.)
Page 26 of 40
McCrea did not respond to PFC’s timeliness argument. In the District of Columbia,
invasion of privacy claims are subject to a one-year statute of limitations. Greenpeace, Inc. v.
Dow Chem. Co., 97 A.3d 1053, 1061-62 (D.C. 2014) (citations omitted). In March 2014, Dr.
Gordon completed a report on McCrea, after which Dr. Morote completed McCrea’s
psychological assessment; in May, Dr. Morote was one of the signatories to the mandatory
retirement recommendation. (SAC ¶¶ 43, 46, 54, 59.) McCrea challenged this recommendation
and sought to return to work, after which Dr. Cottrell requested additional medical
documentation. McCrea met with him, as well as EMS officials about the request in November.
(Id. ¶¶ 82-85, 91.) Thus, PFC’s lasts attempts to obtain information from McCrea’s medical
practitioners occurred in March and November 2014. McCrea filed this lawsuit in April 2016
and therefore her invasion of privacy claims are untimely and will be dismissed with prejudice.
e. Intentional & Negligent Infliction of Emotional Distress
McCrea contends that unspecified Defendants’ “continuous and pervasive pattern of
administrative interference and or abuse” constituted both negligent and intentional infliction of
emotional distress. (SAC COA ¶¶ 13-14.) In response to PFC’s argument that her claims are
untimely, McCrea again raises her continuous tort argument. Both her emotional distress claims
fail because they are intertwined with her defamation claim and are therefore barred by the one-
year statute of limitations. Nyambal, 153 F. Supp. 3d at 314–15 (applying one-year limitations
period to intentional infliction of emotional distress claims).
Even if her claims were timely, McCrea has not asserted facts to support them. To state a
claim for intentional infliction of emotional distress, McCrea must allege facts establishing: “(1)
extreme and outrageous conduct on the part of defendant[s] which (2) either intentionally or
recklessly (3) cause[ed] the plaintiff severe emotional distress.” Howard Univ. v. Best, 484 A.2d
958, 985 (D.C.1984). She must also plead facts showing that the challenged conduct was “‘so
Page 27 of 40
outrageous in character, and so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’”
Larijani v. Georgetown Univ., 791 A.2d 41, 44 (D.C. 2002) (quoting Homan v. Goyal, 711 A.2d
812, 818 (D.C. 1998)).
McCrea has failed to do so. She alleges only that PFC required additional medical
information, engaged in other unspecified conduct showing a lack of integrity and ethics,
reached “unsubstantiated” medical conclusions about her, and gave opinions about her treatment
and prognosis to the Board. These factual allegations do not rise to the level of outrageous
conduct.
Likewise, McCrea has not alleged facts supporting a negligent infliction of emotional
distress claim, which requires her to establish “(1) that [she] suffered either a physical impact or
was within the zone of danger of the defendant’s actions, (2) that [she] suffered emotional
distress that was serious and verifiable, and (3) that the defendant acted negligently.” David v.
D.C., 436 F. Supp. 2d 83, 89 (D.D.C. 2006) (citing Jones v. Howard Univ., Inc., 589 A.2d 419,
424 (D.C.1991)) (some citations omitted). D.C. courts have required that “plaintiff’s presence in
the zone of danger be contemporaneous with her fear for her own safety.” Jane W. v. President
& Directors of Georgetown Coll., 863 A.2d 821, 826–27 (D.C. 2004) (citing Jones, 589 A.2d at
423). McCrea proffers no facts suggesting that PFC acted negligently, or that she suffered
physical harm, or was in a zone of danger, and therefore her negligent infliction of emotional
distress claim will be dismissed with prejudice.
f. Forgery
McCrea brings forgery claims against unspecified Defendants under D.C. Code §§ 22-
3241. (See ECF. No. 90, Pls. Resp. at 26; SAC COA ¶ 11). “Forgery is a criminal offense
which may, in some instances, include commission of other civil torts (e.g., conversion or fraud),
Page 28 of 40
but it is not in and of itself a civil cause of action.” Nwaoha v. Onyeoziri, Civil Action No. 04-
1779 (GK), 2006 WL 3361540, at *4 (D.D.C. Nov. 20, 2006)). Although the parties did not
address the forgery claim, to the extent McCrea asserts a forgery claim, the court will dismiss it
with prejudice.
g. Tortious Interference
McCrea claims PFC committed tortious interference by virtue of its “continued and
pervasive pattern of administrative interference” (presumably the assessments). (SAC ¶ 15.)
This claim is also time barred because it is founded on the same factual allegations as McCrea’s
time-barred defamation claim. See Browning v. Clinton, 292 F.3d 235, 244 (D.C. Cir. 2002)
(applying the defamation one-year statute of limitations after finding that “tortious interference
with business expectancy claims have no prescribed statute of limitations” and they were
intertwined with the defamation claim). The court will therefore dismiss this claim with
prejudice. 22
22
The court will also dismiss the following state law claims, which the parties did not address
in their briefs:
• Constructive Discharge (SAC COA ¶ 3): This claim is not actionable because PFC was
not McCrea’s employer. Moreover, “claims of constructive discharge are not stand-alone
causes of action. Rather, a constructive discharge claim is a component of a
discrimination case or is relevant to the scope of potential recovery on discrimination or
retaliation claims.” Owens-Hart v. Howard Univ., 220 F. Supp. 3d 81, 97 (D.D.C. 2016)
(citing Hammel, 79 F. Supp. 3d 234, 245 (D.D.C. 2015); Russ v. Van Scoyoc Assocs.,
Inc., 122 F. Supp. 2d 29, 35–36 (D.D.C. 2000) (internal quotation marks omitted).
• Fraud on the Court (SAC COA ¶ 9): Fraud on the court is inapplicable here because such
claims are “directed to the judicial machinery itself and is not fraud between the parties
or fraudulent documents, false statements or perjury. Fraud upon the court refers only to
very unusual cases involving far more than an injury to a single litigant. Examples
include the bribery of a judge or the knowing participation of an attorney in the
presentation of perjured testimony.” See Davis v. U.S. Dep’t of Health & Human Servs.,
968 F. Supp. 2d 176, 184 (D.D.C. 2013), aff’d, 2014 WL 2178705 (D.C. Cir. Apr. 25,
2014) (citation omitted).
Page 29 of 40
5. Section 1983 Claim
McCrea’s 42 U.S.C. § 1983 claim against PFC fails for two reasons. 23 First, she has not
alleged any facts suggesting that PFC’s alleged misconduct was the product of an unlawful “policy or
custom,” as required by Monell v. Department of Social Services, 436 U.S. 658, 690–91 (1978); see
Slovinec v. Georgetown Univ., 268 F. Supp. 3d 55, 59 (D.D.C. 2017), aff’d, No. 17-7122, 2018 WL
1052650 (D.C. Cir. Jan. 26, 2018) (noting that “various circuits have applied § 1983 and its
limitations as set forth in Monell to private institutions”).
Second, even if McCrea could establish that PFC engaged in misconduct under Monell, her
§1983 claim fails because her underlying federal claims fail. “Section 1983 creates a cause of action
to remedy certain deprivations of federal rights, but it is not a source of substantive rights.” Pitt v.
D.C., 491 F.3d 494, 510 (D.C. Cir. 2007). Instead, a claim under §1983 is “a method for vindicating
federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes
that it describes.” Baker v. McCollan, 443 U.S. 137, 145 (1979)).
• Spoliation of evidence (SAC COA ¶ 10): This claim is not viable because McCrea alleges
spoliation by Defendants, rather than a third party. See Cook v. Children’s Nat. Med.
Ctr., 810 F. Supp. 2d 151, 157 (D.D.C. 2011) (“[N]egligent or reckless spoliation of
evidence is a claim that can be brought only against a third party.”) (citing Holmes v.
Amerex Rent-A-Car, 710 A.2d 846, 84-49 (D.C. 1998)).
• Negligence (SAC COA ¶ 21): A claim of negligence requires “(1) that the defendant
owed a duty to the plaintiff, (2) breach of that duty, and (3) injury to the plaintiff that was
proximately caused by the breach.” Poola v. Howard Univ., 147 A.3d 267, 289 (D.C.
2016). The SAC does not contain any facts to support this claim. To the extent McCrea
contends PFC was negligent in its provision of services, her claim lies in medical
malpractice and, as discussed above, that claim is foreclosed.
• Fabrication of evidence (SAC COA ¶ 10): The court is unable to discern the factual or
legal authority for this claim.
23
The court declines to reach the question of whether McCrea’s claim that PFC was a state actor
is sufficient to survive a motion to dismiss. See Coe v. Holder, No. 13-CV-184 RLW, 2013 WL
3070893, at *2 (D.D.C. June 18, 2013) (“Under certain circumstances, a private party who
jointly participates with a government official can act under color of state law.”)
Page 30 of 40
As noted earlier, McCrea has not alleged facts to establish a claim under the ADA or
Rehabilitation Act. Thus, her only remaining avenue for §1983 relief would be to allege facts
supporting a constitutional violation. As discussed below, she has failed to do so and the court
will dismiss these claims with prejudice.
a. First Amendment
McCrea alleges that unspecified Defendants violated her “First Amendment Right to
freedom of speech, in retaliation for her opposition to further intrusion into her privacy and
assertion of her rights under the ADA.” (SAC COA ¶ 3(c).) She claims she was retaliated
against when the Board refused to allow her to return to full duty unless her treating psychologist
answered Dr. Cottrell’s questions about her diagnosis and treatment. (Id.) But, as she admits,
the questions PFC posed were on behalf of EMS, and therefore McCrea has no legal basis to
pursue a First Amendment claim against PFC. (See SAC ¶¶ 97-98.)
Citing her rights under the ADA and HIPAA, McCrea further alleges that unnamed
Defendants retaliated against her by defaming her after she refused to allow her treating
physicians to provide the requested information. (SAC COA ¶ 7(b); SAC ¶¶ 85, 91.) As
discussed above, McCrea’s defamation claim against PFC is not legally cognizable, and
therefore her First Amendment retaliation claim also fails.
b. Fourth Amendment
McCrea claims that Defendants violated her Fourth Amendment right to privacy by
ordering her to undergo psychological assessments that went beyond the essential functions of
her job as a firefighter. (SAC COA ¶ 6.) The Fourth Amendment protects an individual’s
“reasonable expectation of privacy,” and their right to be free from warrantless searches and
seizures. Sherrod v. McHugh, 334 F. Supp. 3d 219, 242 (D.D.C. 2018) (citing U.S. Const.
amend. IV; Groh v. Ramirez, 540 U.S. 551, 558–59 (2004)).
Page 31 of 40
McCrea cites no legal authority for the proposition that a municipal employer engages in
a “search” or “seizure” when it requests medical documentation in order to determine whether a
firefighter is fit to return to duty. (See ECF No. 90, Pls. Resp. at pp. 14-15). 24 Moreover, EMS
was the driving force behind the request, not PFC. Accordingly, McCrea’s dispute is with EMS,
not PFC.
c. Fifth Amendment Due Process and Equal Protection
McCrea claims her Fifth Amendment substantive and procedural due process rights were
violated by unspecified Defendants’ “malicious intent to deter due process” and “abuse of
process.” (SAC COA ¶¶ 16-17.) She further asserts that Defendants violated her Fifth
Amendment equal protection rights by forcing her to undergo “unwarranted psychological
assessments without cause.” (SAC COA ¶ 19.)
In response to PFC’s motion to dismiss, McCrea further explains that her Fifth
Amendment claims rest on:
• unidentified Board regulations that prevented her from maintaining her property interest
in her employment (ECF No. 90, Pls. Resp. at 17-18);
• an “unwarranted” invasion of her privacy (id.); and
• “unfair and impartial” Board hearings, during which she did not receive due process.
(id. at 18, 19).
McCrea also directs the court to three paragraphs in the SAC in which she complains about the
first Board hearing, during which she was allegedly prohibited from offering evidence, and in
24
McCrea cites two cases, neither of which support her position: Whalen v. Roe, 429 U.S. 589,
599-600 (1977) (where plaintiffs challenged the state’s maintenance of a database with the
names and address of persons who had obtained prescriptions for certain drugs, the Supreme
Court noted that it had “never carried the Fourth Amendment’s interest in privacy as far as the
[Plaintiffs]” championed), and Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 457-58 (1977)
(rejecting former President’s constitutional privacy challenge to statute requiring federal
government to take custody of and preserve presidential materials, and noting that any privacy
interest involved was “weaker than that found wanting” in Whalen).
Page 32 of 40
which she alleges that Dr. Morote (who is not named as a Defendant), expressed views about
McCrea’s diagnosis. (Id. at 19) (citing SAC ¶¶ 87-89).
i. Due Process
The Fifth Amendment “guarantees that ‘[n]o person shall be . . . deprived of life, liberty,
or property, without due process of law.’ The courts have interpreted the rights secured by the
Due Process Clause to exist in two permutations: ‘procedural’ and ‘substantive.’” New Vision
Photography Program, Inc. v. D.C., 54 F. Supp. 3d 12, 27 (D.D.C. 2014) (citing Zinermon v.
Burch, 494 U.S. 113, 125 (1990)) (alterations in the original).
a. Procedural Due Process
A procedural due process violation occurs when “a government official deprives a person
of his property without appropriate procedural protections. . . . Beyond the basic requirements of
notice and an opportunity to be heard, the precise requirements of procedural due process are
flexible.” English v. D.C., 717 F.3d 968, 972 (D.C. Cir. 2013) (citations omitted).
McCrea does not explain how PFC violated her procedural due process rights by
performing psychological assessments at the request of her employer, EMS. McCrea admits that
EMS directed her to visit PFC for an assessment after she reported the alleged assault. (SAC ¶¶
35, 43-45, 54.) She also alleges that she was subsequently “forced” to attend “monitoring”
sessions at PFC. (SAC ¶¶ 14-15, 35, 40.) McCrea met with an EMS supervisor and
“vehemently protest[ed] the unwarranted order that she undergo a psychological assessment,”
but “was ordered . . . to cooperate with the administration of the psychological assessments,” and
was later terminated when she refused to provide additional medical documentation. (Id. ¶¶ 40,
45, 97-99.) Given these allegations, to the extent any due process was owed McCrea, it was
owed by EMS, not PFC.
Page 33 of 40
b. Substantive Due Process
“Substantive due process prevents governmental power from being used for purposes of
oppression, or abuse of government power that shocks the conscience, or action that is legally
irrational in that it is not sufficiently keyed to any legitimate state interests.” Washington
Teachers’ Union v. Bd. Of Educ., 109 F.3d 774, 781 (D.C. Cir. 1997) (quoting Committee of
United States Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 943–44 (D.C. Cir. 1988))
(alterations and internal quotation marks omitted). Substantive due process claims must
demonstrate “grave unfairness.” Silverman v. Barry, 845 F.2d 1072, 1080 (D.C. Cir. 1988)
(citations omitted). To show “grave unfairness,” McCrea must assert facts showing: “(1) a
substantial infringement of the law prompted by personal or group animus, or (2) a deliberate
flouting of the law that trammels significant personal or property rights.” Crockett v. D.C.
Metro. Police Dep’t, 293 F. Supp. 2d 63, 68 (D.D.C. 2003) (citing Tri County Industries, Inc. v.
District of Columbia, 104 F.3d 455, 459 (D.C. Cir.1997)); see Silverman v. Barry, 845 F.2d
1072, 1080 (D.C. Cir. 1988)). Viewing the facts in the light most favorable to McCrea, the court
finds that she has not alleged facts suggesting that PFC flouted the law, infringed the law, or
acted out of personal or group animus. Therefore, her substantive due process claim is not
actionable and will be dismissed with prejudice.
ii. Equal Protection
Although the parties did not address it, McCrea’s equal protection claim likewise fails.
In order to state a “‘class of one’ equal protection claim,” 3883 Connecticut LLC v. D.C., 336
F.3d 1068, 1075 (D.C. Cir. 2003), McCrea must allege facts showing that she “was subject to
differential treatment because of membership in a protected class, such as one based on race” or
“that [she] was arbitrarily and intentionally treated differently from others who are similarly
situated—and the government has no rational basis for the disparity.” Kingman Park Civic Ass’n
Page 34 of 40
v. Gray, 27 F. Supp. 3d 142, 158 (D.D.C. 2014) (emphasis in original) (internal citations
omitted) (citing Kelley v. District of Columbia, 893 F. Supp. 2d 115, 122 (D.D.C. 2012); Vill. of
Willowbrook v. Olech, 528 U.S. 562, 564–565 (2000)). McCrea has not pled any facts
suggesting differential or arbitrary treatment by PFC based on protected status. Accordingly, as
with her other constitutional claims, McCrea has pleaded no viable equal protection claim and
therefore her § 1983 claim fails.
6. Section 1985 and 1986 Claims
42 U.S.C. §1985 “does not create any substantive rights, but only permits a private cause
of action to sue for conspiracy to violate a federal right.” Nanko Shipping, USA v. Alcoa, Inc.,
107 F. Supp. 3d 174, 182 (D.D.C. 2015), rev’d and remanded on other grounds, 850 F.3d 461(D.C. Cir. 2017) (citing United Bhd. of Carpenters & Joiners, 463 U.S. 825, 833 (1983) (other
citations omitted). As such, §1985 “serve[s] as a device through which vicarious liability for the
underlying wrong may be imposed upon all who are a party to it, where the requisite agreement
exists among them.” Nanko Shipping, F. Supp. 3d at 182 (citation omitted). Because the court
has found that her underlying claims fail, McCrea’s §1985 claim also fails, as does her § 1986
claim. See Avila v. CitiMortgage, Inc., 45 F. Supp. 3d 110, 122 (D.D.C. 2014) (noting that Ҥ
1986 claims are predicated on the existence of § 1985 claims,” and if the latter fails, the § 1986
claim also fails) (citing Herbin v. Hoeffel, No. 99–7244, 2000 WL 621304, at *1 (D.C. Cir.
2000)). 25 Accordingly, the court will dismiss both the §1985 and 1986 claims with prejudice.
3. Lois Hochhauser
25
McCrea’s D.C. civil conspiracy claim fails for the same reason. Riddell v. Riddell
Washington Corp., 866 F.2d 1480, 1393 (D.C. Cir. 1989) (citations omitted) (noting that civil
conspiracy is not actionable in and of itself under federal or District of Columbia law).
Page 35 of 40
McCrea contends that Lois Hochhauser, who was the EMS Board Chair during McCrea’s
first retirement Board hearing on November 6, 2014
• “dismissed” some of McCrea’s concerns, as well as her treating physicians’
recommendations for accommodations;
• repeatedly told McCrea she would be terminated if she did not return to full
duty;
• “interjected or constricted” McCrea as she was “cross-examining” Dr. Morote,
“at one point expressly telling McCrea that she was not allowed to confront
and/or challenge” the witness about her medical findings; and
• “coached” Dr. Morote “into making statements that the sexual harassment
incident did not exist, therefore the Plaintiff could not have had PTSD.”
(SAC. ¶¶ 87-89.) Despite repeated admonitions from this court, McCrea has refused to indicate
in her SAC which of her many claims apply to which defendant. She now attempts to clarify
that she alleges claims for due process, equal protection, defamation and conspiracy against
Hochhauser based on Hochhauser’s “concerted role to conspire under color of the law with
various Defendants, in all of the Plaintiff’s claims.” (ECF No. 81, Pls. Resp. at 3-4, 8-10.) 26
None of these claims are viable. McCrea has not alleged that Hochhauser made
defamatory statements. In her response to Hochhauser’s motion to dismiss, McCrea challenges
the Board’s “written decision,” (ECF No. 81, Pls. Resp. at 10), which did not involve
Hochhauser. (See SAC, Attachment E.) Thus, there are no factual allegations which might
establish a defamation claim against Hochhauser.
26
McCrea also mentions forgery with respect to Hochhauser (ECF No. 82, Pls. Resp. at 3), but
as discussed above, forgery is not an actionable civil offense under District of Columbia law.
See Nwaoha v. Onyeoziri, No. CIV A 04-1799 GK, 2006 WL 3361540, at *4 (D.D.C. Nov. 20,
2006).
Page 36 of 40
More importantly, the court agrees with Hochhauser that she is immune from suit in her
capacity as Board chair or “administrative law judge.” McCrea argues that Hochhauser’s
conduct involved actionable “administrative,” rather than “judicial” functions, thereby making
the immunity defense unavailable. (ECF No. 81, Pls. Resp. at 6.) But the law does not support
McCrea’s position.
In Daul v. Meckus, 897 F. Supp. 606, 608-11 (D.D.C. 1995), aff’d sub nom. Daul v.
Meckus, 107 F.3d 922 (D.C. Cir. 1996), the district court dismissed constitutional claims against
an administrative law judge and a “judicial officer” who issued decisions on appeal from an
animal welfare license revocation. Citing “a long line of Supreme Court precedent,” the court
noted that judges are generally immune from lawsuits for money damages, and such immunity
“may not be overcome even by allegations of bad faith or malice.” Daul, 897 F. Supp. at 610
(citing Mireles v. Waco, 502 U.S. 9, 11 (1991); Butz v. Economou, 438 U.S. 478, 513-4 (1978))
(some citations omitted). The court found that administrative law judges and “judicial review
officers” “exercise independent judgment in performing adjudicatory” duties that are
functionally similar to those performed by federal and state trial and appellate judges. Daul, 897
F. Supp. at 610 (citing Butz v. Economou, 438 U.S. at 513–14).
The D.C. Circuit explained the reasons behind this grant of immunity:
Judicial immunity from liability, as with absolute immunity in other contexts, “is
justified and defined by the functions it protects and serves, not by the person to
whom it attaches.” In other words, “Judges have absolute immunity not because of
their particular location within the Government but because of the special nature of
their responsibilities.” It is therefore unsurprising that absolute immunity has been
extended to cover executive branch officials who perform either quasi-judicial
functions that are “functionally comparable’ to those of a judge” or prosecutorial
functions “intimately associated with the judicial phase of the criminal process.”
Atherton v. D.C. Office of Mayor, 567 F.3d 672, 682 (D.C. Cir. 2009) (emphasis in original)
(citations omitted). This “functional approach” considers certain factors, including
Page 37 of 40
(1) whether the functions of the official in question are comparable to those of a
judge; (2) whether the nature of the controversy is intense enough that future
harassment or intimidation by litigants is a realistic prospect; and (3) whether the
system contains safeguards which are adequate to justify dispensing with private
damage suits to control unconstitutional conduct.
Atherton, 567 F.3d at 683 (citing Wagshal v. Foster, 28 F.3d 1249, 1252 (D.C. Cir. 1994); Butz,
438 U.S. at 512)). The Supreme Court has “made clear that ‘it would be untenable to draw a
distinction for purposes of immunity law between suits brought against state officials under §
1983 and suits brought directly under the Constitution against federal officials.” Ford v.
Donovan, 843 F. Supp. 2d 41, 43 (D.D.C. 2012) (citing Butz, 438 U.S. at 818 n. 30).
Applying the functional approach, the court finds that Hochhauser is entitled to
immunity. The Board was established to make decisions “with respect to retirement and
disability,” D.C. Code § 5-722, which are likely to create intense controversy where “future
harassment or intimidation by litigants is a realistic prospect.” Atherton, 567 F.3d at 683.
Moreover, in this case, Hochhauser was performing judicial functions “comparable to
those of a judge,” and the Retirement Board review system contains “safeguards which are
adequate to justify dispensing with private damage suits to control unconstitutional conduct.”
See Atherton, 567 F.3d at 683 (citations omitted); Clinton v. Jones, 520 U.S. 681, 695 (1997)
(“As our opinions have made clear, immunities are grounded in ‘the nature of the function
performed, not the identity of the actor who performed it.’”) (citation omitted). The Board is
tasked with considering retirement decisions “fairly and equitably.” D.C. Code § 5-722. In
addition, the court takes judicial notice of the “Police and Fire Retirement System, Electronic-
District Personnel Manual,” which provides that applicants at Board hearings “have the right to
be represented by an attorney or a non-legal representative,” testify, and offer documentary and
live witnesses. See 7 DCMR § 2503.1(a); 2503.4. The Board has rules for serving process,
issuing subpoenas, and considering petitions for reconsideration of interim decisions. 7 DCMR
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§§ 2505; 2510; 2525. Once the Board reaches a decision, which must be signed by the
Chairperson, 7 DCMR § 2522.2, the D.C. Office of Personnel issues the Board’s final “written
decision with accompanying findings of fact and conclusions of law.” 7 DCMR § 2523.
Appeals from the Board’s final decision “may be taken to the District of Columbia Court of
Appeals.” 7 DCMR § 2529.2. 27
Given these procedures, the court is not persuaded by McCrea’s argument that as Board
Chair Hochhauser was engaged in “administrative,” rather than judicial functions. As with her
arguments regarding D.C. Council immunity, McCrea cites to cases that are inapposite to the
facts she alleges in her SAC. (See ECF No. 81, Pls. Resp. at 5-10.) 28 Moreover, Hochhauser’s
immunity does not foreclose any viable constitutional claims against the City for the Board’s
handling of the administrative hearings. Therefore, the court will grant Hochhauser’s motion to
dismiss with prejudice.
D. CONCLUSION
For the reasons set forth above, the court will dismiss the claims asserted against the D.C.
Council, the PFC Associates Defendants, and Lois Hochhauser with prejudice. The court will
also dismiss with prejudice the following claims asserted against all Defendants: fraud on the
27
McCrea unsuccessfully challenged the Board’s decision in D.C. Superior Court, the D.C.
Court of Appeals, and the United States Supreme Court. See McCrea v. D.C. Police &
Firefighters' Ret. & Relief Bd., 199 A.3d 208, 209 (D.C. 2019), cert. denied, McCrea v. D.C.
Police & Firefighters’ Ret. & Relief Bd., ___ U.S.___, 140 S. Ct. 85 (2019).
28
McCrea mistakenly relies on cases such as Forrester v. White, 484 U.S. 219, 220 (1988)
(resolving the issue of “whether a state-court judge has absolute immunity from a suit for
damages under 42 U.S.C. § 1983 for his decision to dismiss a subordinate court employee”), and
Ex Parte Virginia, 100 U.S. 339 (1879) (finding that a judge’s creation of a jury list that
excluded Blacks was not a judicial function, but instead “merely a ministerial act” “often given
to county commissioners, or supervisors, or assessors,” or previously to sheriffs”).
Page 39 of 40
court, constructive discharge, spoliation of evidence and fabrication of evidence.
Date: March 31, 2021
Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge
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