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March 9, 1983

MARION S. BARRY, et al., Defendants

The opinion of the court was delivered by: RICHEY


 This matter is before the Court on Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment. The Court issued an Order on December 17, 1982 granting the Motion insofar as it dismisses the claims against the defendants in their individual capacities. This Memorandum Opinion will elucidate the bases for that Order. Additionally, upon further consideration, the Court will amend its order of December 17, 1982 to allow plaintiff to retain his claims under 42 U.S.C. §§ 1981 and 1983 against Defendant Gutierrez in his individual capacity.


 Plaintiff was hired by the District of Columbia as Deputy Assistant Director of Personnel for Classification (DS-14) in July of 1979. On June 16, 1980 he was reassigned to the position of Personnel Officer, Public Safety Group, District of Columbia Office of Personnel, at the same grade and salary level. Plaintiff was promoted on February 8, 1981 to Director of Personnel for Public Safety (DS-15). However, on June 26, 1981 he was downgraded to the job of Position Classification Specialist (DS-14), allegedly because he was responsible for a "hiring fiasco" regarding the selection of candidates for openings at the Fire Department. Plaintiff contends that, in fact, the reason for his demotion was racial discrimination. Accordingly, he filed this suit seeking relief under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 1981, 1983, and 1985, and the 14th Amendment. *fn1" However, plaintiff named a number of individuals as defendants, against whom suit was not proper. The Court has dismissed these claims as will be explained herein. Additionally, in this opinion the Court will set forth what claims may be stated against the remaining defendants.


 Under Title VII, plaintiff cannot state a claim against Mayor Marion Barry individually, because Mr. Barry is not an employer within the meaning of that statute. See 42 U.S.C. § 2000e(b). Nor can Marion Barry be held personally liable under the 14th Amendment. Any claim plaintiff has against Mr. Barry for alleged constitutional violations should be brought under § 1983. Most courts have held that where "Congress has provided an alternative remedial scheme, which is intended to be a substitute for direct recovery under the constitution [-- such as § 1983 --] a Bivens -type action is inappropriate." Williams v. Bennett, 689 F.2d 1370, 1390 (11th Cir. 1982). See e.g., Ward v. Caulk, 650 F.2d 1144, 1148 (9th Cir. 1981); Turpin v. Mailet, 591 F.2d 426, 427 (2d Cir. 1979). See also Tarpley v. Greene, 221 U.S. App. D.C. 227, 684 F.2d 1, 10 (D.C. Cir. 1982).

 Additionally, plaintiff has not stated a viable claim against Defendant Barry under §§ 1981, 1983 or 1985. It is clear that Mr. Barry cannot be sued under the theory of respondeat superior pursuant to these sections. Monell v. Department of Social Services, 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978); Rizzo v. Goode, 423 U.S. 362, 46 L. Ed. 2d 561, 96 S. Ct. 598 (1976). Therefore, because plaintiff has not claimed that Mr. Barry was personally involved in his allegedly discriminatory demotion, plaintiff's claims against Mr. Barry under §§ 1981, 1983 and 1985 must be dismissed.


 As was the case with Defendant Barry, plaintiff can neither state a claim against Mr. Gutierrez under Title VII because he is not an "employer" within the meaning of the statute, nor under the 14th Amendment because § 1983 is the proper remedy. See slip op. at p. 3 supra. The Court had also dismissed all plaintiff's remaining claims against Defendant Gutierrez. However, upon further consideration in light of the developing law on immunity, the Court concludes that Defendant Gutierrez is not immune from suit under §§ 1981, 1983 and 1985, though plaintiff's § 1985 claim is not proper for an independent reason.

 Plaintiff has claimed that Mr. Gutierrez personally violated his civil rights, and, accordingly, plaintiff has asserted a claim against him under §§ 1981, 1983 and 1985. However, in his motion to dismiss, defendant Gutierrez claims that, even if a viable claim is stated, he is immune from prosecution under the doctrine enunciated by the Supreme Court in Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982). In Harlow, the Court held that "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Id. 102 S. Ct. at 2738. The Court states that "bare allegations of malice should not suffice to subject government officials [to trial]," id., and, therefore, when possible, cases alleging constitutional violations by federal officials should be terminated on a properly supported motion for summary judgment. Id. 102 S. Ct. at 2733. Toward this end, Defendant Gutierrez has introduced his affidavit in support of Defendants' Motion for Summary Judgment stating that his actions were proper and not discriminatory.

 The Court holds that Defendant Gutierrez is not immune from prosecution under §§ 1981, 1983 and 1985. Initially, if it is true as alleged, that Defendant Gutierrez discriminated against plaintiff, then without a doubt, this defendant did "violate clearly established statutory or constitutional rights of which a reasonable person would have known." However, at this point in the proceedings, the Court is unable to determine whether Mr. Gutierrez did, in fact, act illegally. This is clearly one of the major controverted facts in this litigation. Moreover, this is not a matter wherein plaintiff has leveled "bare allegations of malice" against defendant. Plaintiff has introduced his own affidavit in support of these allegations.

 Furthermore, this Court is convinced that Defendant Gutierrez's affidavit alone cannot be sufficient to support summary judgment. A contrary holding would convert the qualified immunity granted to federal officials into absolute protection -- because simply by filing an affidavit denying wrongdoings officials could create a complete shield against suit; it would require the courts to prematurely terminate many plaintiffs' claims that could well be meritorious; and it would defeat the normal summary judgment process by requiring the Court to accept controverted facts as established solely on the basis of one party's affidavit. *fn2" Accord Dale v. Bartels, 552 F. Supp. 1253 (S.D.N.Y. 1982). It is well established that the party seeking summary judgment -- here, defendant -- has the burden to demonstrate that there are no material facts in dispute. 6 J. Moore Federal Practice P 56.15[3] (2d ed. 1976). Defendant cannot do so. Therefore, defendant is not entitled to summary judgment on the question of immunity and the Court holds that Defendant Gutierrez is not immune from suit under §§ 1981, 1983 or 1985.

 Plaintiff's § 1985 claim, however, must be dismissed for another reason. This claim has already been dismissed as to all defendants except the District of Columbia and Mr. Gutierrez. Thus, to state a claim under § 1985 plaintiff must allege a conspiracy between Defendant Gutierrez and the District. *fn3" However, the weight of authority holds that there can be no conspiracy if the conduct complained of is essentially a single act by a single entity. See e.g., Herrmann v. Moore, 576 F.2d 453, 459 (2d Cir. 1978); Girard v. 94th Street and 5th Avenue Corp., 530 F.2d 66, 70 (2d Cir.) cert. denied 425 U.S. 974, 48 L. Ed. 2d 798, 96 S. Ct. 2173 (1976); Whitten v. Petroleum Club, 508 F. Supp. 765, 770-71 (W.D. La. 1981). Here, plaintiff challenges a single action -- his demotion -- brought about by the actions of a single entity -- the ...

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