Allen-Brown v. Dist. of Columbia

AMY BERMAN JACKSON

Motion granted.

Kathy Dianne Bailey, Bailey Law, P.C., Washington, DC, for Plaintiff. Sarah L. Knapp, Denise J. Baker, Office of the Attorney General for the District of Columbia, Washington, DC, for Defendants.

AMY BERMAN JACKSON, United States District Judge

Plaintiff Sashay Allen–Brown, a police officer with the District of Columbia Metropolitan Police Department (“MPD”), filed this action against defendants District of Columbia and MPD, seeking damages, attorney's fees and costs, and equitable relief for six counts of gender discrimination, pregnancy discrimination, and retaliation pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq. (2012) (Counts I and II), the First Amendment (Count III), the D.C. Human Rights Act of 1977, D.C. Code § 2–1401.01 et seq. (2012) (Count IV), D.C. breastfeeding protection laws, D.C. Code § 2–1402.82(d)(2) (2012) (Count V), and 42 U.S.C. § 1981 (Count VI). Defendants moved to dismiss, arguing that MPD is non sui juris and is therefore not a proper defendant. Defendants also moved to dismiss plaintiff's First Amendment retaliation claim (Count III) and section 1981 discrimination and retaliation claim (Count VI) for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6).

The Court will grant defendants' motion in its entirety. Plaintiff concedes that defendant MPD is non suis juris and must be dismissed. Additionally, applying Monell v. Department of Social Services of New York, 436 U.S. 658, 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Court finds that plaintiff has failed to allege sufficient facts to establish municipal liability under section 1983 for plaintiff's First Amendment retaliation claim. Finally, the Court finds that section 1981 cannot be the vehicle for redress of plaintiff's gender and pregnancy discrimination and retaliation claims. But this was only a partial motion to dismiss, and the other claims against the District will move forward.

In Monell, the Supreme Court held that local governments are not immune from liability under section 1983, but it explained that a “municipality cannot be held liable solely because it employs a tortfeasor—or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.” 436 U.S. at 691, 98 S.Ct. 2018. “Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.” Id. at 694, 98 S.Ct. 2018. The Supreme Court subsequently stated: “while Congress never questioned its power to impose civil liability on municipalities for their own illegal acts, Congress did doubt its constitutional power to impose such liability in order to oblige municipalities to control the conduct of others.” Pembaur v. City of Cincinnati, 475 U.S. 469, 479, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986) (emphasis in original). “The ‘official policy’ requirement was intended to distinguish acts of the municipality from acts of employees of the municipality, and thereby make clear that municipal liability is limited to action for which the municipality is actually responsible.” Id.

The D.C. Circuit has explained that:

There are a number of ways in which a “policy” can be set by a municipality to cause it to be liable under § 1983: the explicit setting of a policy by the government that violates the Constitution ...; the action of a policy maker within the government ...; the adoption through a knowing failure to act by a policy maker of actions by his subordinates that are so consistent that they have become “custom” ...; or the failure of the government to respond to a need ... in such a manner as to show “deliberate indifference” to the risk that not addressing the need will result in constitutional violations.
Baker v. District of Columbia, 326 F.3d 1302, 1306 (D.C.Cir.2003) (citations omitted).

Here, plaintiff did not plead sufficient facts to show that the constitutional violation alleged in Count III—the Medical Director's alleged retaliation against plaintiff for exercising her First Amendment rights—was caused by a policy or custom of the District. In the absence of these facts necessary to support municipal liability, Count III must be dismissed.

As an initial point, the complaint does not contain any allegations that the District explicitly adopted a policy of retaliating against employees who engage in First Amendment speech, and it does not assert that the District is deliberately indifferent to First Amendment retaliatory conduct. Instead, the only factual allegations concerning retaliation incorporated into Count III of plaintiff's complaint involve the Medical Director's decision to deny plaintiff limited duty status because she spoke out against MPD's allegedly insufficient lactation facilities. See Compl. ¶¶ 39–40, 48–49, 53–56.

It is true that in some cases municipal liability can attach where the conduct underlying the section 1983 claim was the product of “the action of a policy maker within the government.” But here, plaintiff has not alleged facts that would establish that the retaliatory action was taken by a policy maker.

The Supreme Court narrowly interprets “policy makers” for the purposes of section 1983 liability, and discretion in a job function is not enough. St. Louis v. Praprotnik, 485 U.S. 112, 126, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988) (O'Connor, J., plurality opinion) (“If the mere exercise of discretion by an employee could give rise to a constitutional violation, the result would be indistinguishable from respondeat superior liability.”); see also Triplett v. District of Columbia, 108 F.3d 1450, 1453 (D.C.Cir.1997) (applying Praprotnik ). Instead, an individual must “speak with final policymaking authority for the local governmental actor” as established by state law to qualify as a policy maker. Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989); see also Triplett, 108 F.3d at 1453. And courts in this district have held that a final policy maker “typically must be at least an agency head or the governing body of an agency.” Coleman v. District of Columbia, 828 F.Supp.2d 87, 91 (D.D.C.2011) (holding that an assistant fire chief was not a final policy maker); see also Byrd v. District of Columbia, 807 F.Supp.2d 37, 75 (D.D.C.2011) (defining a narrow pool of policy makers as those who can “promulgate administrative rules” or those who have the “authority to make final policy”).

Applying that framework here, the Court finds that Director Sarvis—the only individual mentioned in connection with Count III—is not a policy maker. There is nothing in the record to indicate that he makes broad departmental policy decisions at all, and even with respect to individual determinations of eligibility for limited duty status, the Medical Director does not have the final word. See Triplett, 108 F.3d at 1453 (alteration in original), quoting Jett, 491 U.S. at 737, 109 S.Ct. 2702 (“The only acts that count (though they may include inaction giving rise to or endorsing a custom) are ones by a person or persons who have ‘final policymaking authority [under] state law.’ ”). Instead, D.C. law provides that:

If the [Medical] Director, in consultation with the Police and Fire Clinic physicians, determines that a member, because of ... temporary medical disability, is unable to perform the full range of duties, but is capable of effectively performing certain types of work within the department ... the Director may recommend to the Chief that the member perform work in a limited-duty status.
D.C. Code § 5–632(a) (2012) (emphasis added).

Moreover, Director Sarvis is not the head of an agency, and he must report through layers of management to reach the chief of police—the agency head for the police department. See Ex. H to Compl. (noting the chain of command through which the Medical Services Branch reports). The Court therefore concludes that Director Sarvis is not a policy maker for the purposes of section 1983 liability, and that plaintiff failed to plead sufficient facts to establish Monell liability in this case. Since plaintiff is merely seeking to hold the District vicariously responsible for the actions of its employee, the Court will grant defendants' motion to dismiss Count III.

In Count VI, plaintiff alleges that defendants violated her contract rights protected by 42 U.S.C. § 1981 because defendants discriminated and retaliated against her on the basis of her gender and her lactation needs—i.e., that it failed to provide her with an alternate work assignment and placed her on unpaid leave when she was unable to wear the bullet-proof vest. Compl. ¶ 68–78; Pl.'s Opp. at 9–11. Defendants moved to dismiss this count on the ground that section 1981 cannot serve as the vehicle for gender and pregnancy discrimination claims. Defs.' Reply at 5. The Court agrees.

Section 1981 provides that:

All persons ... shall have the same right ... to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
42 U.S.C. § 1981. This section is regularly applied in the context of racial discrimination and retaliation. But courts have declined to extend section 1981 into the context of gender discrimination. See Peart v. Latham & Watkins LLP, No. 13–537 (RMC), 985 F.Supp.2d 72, 84, 2013 WL 5745642, at *7 (D.D.C. Oct. 23, 2013) (“Section 1981 does not provide a cause of action for pregnancy or gender discrimination ... [because, a]s is clear from the statute's language, § 1981 is limited to racial discrimination.”); Bello v. Howard Univ., 898 F.Supp.2d 213, 219 (D.D.C.2012) (“42 U.S.C. § 1981 is narrowly addressed to racial discrimination and is in no way directed to sex or gender discrimination.”); Maduforo v. Urban Serv. Sys. Corp., No. 09–0287(JR), 2009 WL 2031869, at *1 (D.D.C. July 14, 2009) (dismissing one count of plaintiff's claim because “there is no cause of action under section 1981 for retaliation arising from gender discrimination”). The Court will follow these decisions.

As an initial point, the plain language of section 1981, “as is enjoyed by white citizens,” supports the conclusion that it was not meant to encompass types of discrimination other than those based on race. In fact, in Saint Francis College v. Al–Khazraji, the Supreme Court questioned whether section 1981 could even be used to assert a claim for discrimination on the basis of national origin. 481 U.S. 604, 613, 107 S.Ct. 2022, 95 L.Ed.2d 582 (1987); see also Uzoukwo v. Metro. Wash. Council of Gov'ts, No. 11–391(RLW), 27 F.Supp.3d 62, 66, 2014 WL 211937, at *2 (D.D.C. Jan. 21, 2014) (applying Al–Khazraji to limit national origin claims under section 1981 that lack an associated racial or ethnic claim).

Moreover, the Supreme Court has stated that section 1981 does not apply to gender discrimination. In applying section 1981 to a case of racial discrimination at a private school, the Court clarified that it was not deciding “the right of a private school to limit its student body to boys [or] girls ... [because] 42 U.S.C. § 1981 is in no way addressed to such categories of selectivity.” Runyon v. McCrary, 427 U.S. 160, 167, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976). And courts in this jurisdiction have cited Runyon in support of their holdings that section 1981 does not apply to gender or pregnancy discrimination. See Peart, 985 F.Supp.2d at 84, 2013 WL 5745642, at *7; Bello, 898 F.Supp.2d at 219.

Here, plaintiff's section 1981 claim relates solely to issues of gender and pregnancy discrimination and Director Sarvis' allegedly retaliatory acts resulting from plaintiff's speech about that discrimination. As a result, Count VI must be dismissed.

For the above stated reasons, plaintiff has failed to state a claim upon which relief may be granted for violation of her rights under both the First Amendment, as enforced by 42 U.S.C. § 1983, and her rights under 42 U.S.C. § 1981. The Court will therefore grant defendants' motion to dismiss Counts III and VI of plaintiff's complaint. A separate order will issue. -------- Notes: