The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge
This matter comes before the Court on the defendants' Motion  to Dismiss. Upon consideration of the defendants' motion, the opposition thereto, the reply brief, the applicable law, and the entire record herein, the Court concludes that the defendants' motion will be granted. The Court agrees with the defendants' contention that five of the plaintiff's six causes of action fail to state a claim on which relief may be granted because the plaintiff failed to exhaust her administrative remedies with respect to those five claims. The Court's reasoning is set forth below.
This action arises from a firing. On March 8, 2002, the District of Columbia Department of Human Services ("DCDHS") terminated plaintiff Sallie Johnson from her position as a correctional officer. Compl., ¶¶ 38-39. Ms. Johnson, a 13-year veteran employee at the time of her termination, was hired in February 1989 and assigned to the Youth Services Administration ("YSA") at Oak Hill Youth Center, where she worked her entire career. Id. at ¶¶ 7, 9. On November 12, 2001, Ms. Johnson was assigned to unit 8-B at Oak Hill where, at approximately 8:40 PM that same night, a head-count revealed that three residents were missing. Id. at ¶¶ 15, 18.
Oak Hill staff conducted a search of the facility's perimeter, and surmised that the missing residents had escaped through a hole in the perimeter fence located behind unit 8-B. Compl., ¶ 14, 19. This hole was not new. Indeed, it was the apparent avenue of escape for seven other residents who went missing from Oak Hill six months earlier, on May 28, 2001. Id. at ¶ 14. Aside from the hole in the fence, moreover, other conditions at the Oak Hill facility seem to have been ripe for escapes on the night of November 12. According to Ms. Johnson's complaint, "the lighting behind the gym was not functioning;... surveillance cameras near the fence behind unit 8-B were not working;... gym staff had not secured the side door of the gym;... the security patrol car was not patrolling the facility's outer perimeter;.. [and] the security guard was not patrolling his assigned area." Id. at ¶ 16. While it seems that some sort of untoward incident was inevitable under such conditions, the circumstances surrounding and the ultimate responsibility for the November 12, 2001 escapes are not the Court's primary concern on the present motion. Rather, the present motion deals with the manner in which the DCDHS allocated blame for the incident and the remedial actions it took in light of that allocation.
On November 13, 2001, Ms. Johnson was placed on administrative leave pending resolution of an investigation into the November 12 escape. Compl., ¶ 20. One month later, Deputy Administrator of Secure Facilities at Oak Hill presented Johnson with a "fifteen-day advance notice of proposal to remove that reference nine... attachments." Id. at ¶ 21. Presumably, these attachments contained or referenced the evidence that supported Oak Hill's recommendation that Johnson be terminated as a result of the escape. The actual attachments were not delivered with the notice, however, see id. at ¶ 22, and Ms. Johnson's quest to find and review the attachments proved long and rather complicated.
Initially, an Oak Hill personnel department employee advised Ms. Johnson that the attachments were available for her review at the District of Columbia Office of Personnel ("DCOP"). After several failed attempts to locate the attachments at that office, see Compl., ¶¶ 23-25, Johnson contacted her union, the Fraternal Order of Police /Department of Human Services Labor Committee (the "union"), and requested representation and assistance in obtaining the missing documents. Id. at ¶¶ 26-27. Around this same time, on December 24, 2001, then-Oak Hill Chief Administrator Gayle Turner was quoted in a Washington Post article for the statement that Johnson and the other two correctional officers on duty at unit 8-B on November 12 would be held "accountable and responsible" for their "inexcusable neglect of duty" on the night of the escape. See id. at ¶ 30.
Attempting to locate the missing attachments to Johnson's advance notice of proposed removal, Harold Vaught, then general counsel for the union, contacted the DCDHS Office of Fair Hearings ("OFH"), and informed the acting chief of that office that Johnson had not received copies of the attachments reference in the notice of proposed removal. Id. at ¶ 28. The OFH's chief hearing examiner contacted both the general counsel for DCDHS and an administrator at YSA, attempting to locate the missing attachments. Johnson finally received copies of the nine attachments on January 22, 2002, nearly six weeks after issuance of the initial notice. Id. at ¶¶ 29-30. The next day, YSA delivered a complete copy of the notice, attachments included, to OFH, at which point administrative review proceedings began in earnest. Id. at ¶ 32.
On March 8, 2002, according to Johnson's complaint, the OFH hearing examiner assigned to Johnson's case issued her findings, wherein she concluded: (1) that Johnson was covered under a collective bargaining agreement between D.C. and the predecessor of Johnson's current union, the American Federation of Government Employees; (2) that DCDHS had violated a provision of that agreement requiring that an employee be given notice of proposed disciplinary action within forty-five days of the incident upon which the disciplinary action is predicated; and (3) that removal was too harsh a penalty in light of Ms. Johnson's longtime service and generally excellent performance reviews. See Compl., ¶¶ 34-37. The finding of a violation of the notice provision of the collective bargaining agreement was based on the period of time between November 12, 2001, the date of the escape, and January 22, 2002, the date on which Johnson received a complete copy of the notice of proposed removal with the nine attachments included. See id. at ¶ 36.
That same day, however, presumably after reviewing and rejecting the conclusions of the OFH examiner, DCDHS director Carolyn Colvin "sustain[ed] the proposal to remove Ms. Johnson from her position for 'inexcusable Neglect of Duty.'" Compl., ¶ 38. Ms. Johnson's removal apparently became effective on March 15, 2002. See id. at ¶ 40. The union assured Ms. Johnson that it would file a grievance on her behalf concerning her discharge and take the matter to arbitration as provided by the collective bargaining agreement. Id. at ¶ 39-40. The union initiated formal grievance procedures March 27, 2002, but was unresponsive to Johnson's repeated requests for updates on the progress of the arbitration until January 2003. Id. at ¶¶ 41-46. At that time, the union's new general counsel advised Johnson that the arbitration was complete and that she had received a favorable ruling. Id. at ¶ 46.
Several months passed with no word from the union regarding the status of Johnson's grievance. Id. at ¶ 47-48. Finally, in August 2003, Ms. Johnson's attorney met with the union's general counsel and learned that the disposition of Johnson's grievance had been "tied up in a dispute over whether the District had an obligation to arbitrate" under the collective bargaining agreement. Id. at ¶ 49. Subsequently, Ms. Johnson's attorney learned that Johnson's was not among the group of individual cases that had been arbitrated in the proceedings that the union's general counsel referenced when informing Johnson that the arbitration resulted in a favorable ruling. Id. at ¶ 50. As such, Ms. Johnson's claim has yet to be arbitrated at all.
On February 17, 2004, Ms. Johnson filed suit against the District of Columbia in this Court. Her complaint alleges six causes of action, two of which actually (Causes of Action 1 and 5, Compl. at 7-9, 12-14) constitute the single claim that the District deprived Johnson of her protected property interest in her continued employment with the YSA without granting her procedural due process of law. Procedural due process was lacking, the complaint alleges, both when Ms. Johnson was unable to review the nine attachments to the notice of proposed removal for two months following the incident giving rise to the proposed disciplinary action and when the District "refused" to arbitrate her grievance as required by the collective bargaining agreement. In addition, Johnson's complaint includes claims for wrongful termination, defamation, and intentional infliction of emotional distress against the District and the individual defendants in their official capacities. Johnson's second cause of action, entitled "Defendants Perkins, Turner and Colvin Conspired to Deprive the Plaintiff without Due Process of Her Protected Interest in Continued Employment with the District of Columbia in Violation of 42 U.S.C. Section 1985," Compl. at 9, states a claim for damages against the individual defendants in their individual capacities, and thus is not at issue on this motion to dismiss, which is brought on behalf of "Defendant District of Columbia... and the official capacity defendants, in their official capacities only[.]" Def.'s Mot. at 1 (emphasis added).
The District's motion to dismiss argues that Johnson has not yet exhausted her administrative remedies, as she has not yet either arbitrated her grievance or been informed that arbitration is not, in fact, provided for by the collective bargaining agreement. That is, defendants argue, because the District's duty to arbitrate under the agreement remains in dispute, the scope of Johnson's administrative remedies has not yet been resolved, making exhaustion of such remedies logically impossible at the time Johnson filed suit in this Court. Additionally, the District's motion contends that Johnson's claims are barred by official immunity and failure to provide required notice to the District prior to filing suit. No affidavits, declarations, exhibits or other factual proffers of any kind accompanied either the defendants' motion or the plaintiff's opposition. The Court does not even have before it a copy of the relevant provisions of the collective bargaining agreement. The facts related herein, then, are drawn exclusively from the plaintiff's complaint and texts of the parties' briefs on the present motion to dismiss.
Although the defendants' motion to dismiss references only Federal Rule of Civil Procedure 12(b)(6), the motion argues in the first place that dismissal is required because the plaintiff failed to exhaust her administrative remedies prior to filing suit in this Court. See Def.'s Mot. to Dismiss ("Def.'s Mot.") at 1. This exhaustion argument may constitute a challenge to the Court's subject matter jurisdiction over the plaintiff's claims, see Steadman v. Governor, United States Soldiers' & Airmen's Home, 918 F.2d 963, 968 (D.C. Cir. 1990) (concluding that plaintiffs' failure to exhaust administrative remedies in labor dispute required reversal and "remand with instructions to dismiss for lack of subject matter jurisdiction"); Armstead v. District of Columbia, 810 A.2d 398, 400 (D.C. 2002) (treating appellees' contention that appellants failed to exhaust administrative remedies as a challenge to lower court's subject matter jurisdiction), and thus the defendants' motion might more appropriately be treated as a motion brought pursuant to Federal Rule of Civil Procedure 12(b)(1) for the purposes of the exhaustion argument. See U.S. ex rel. El-Amin v. George Washington University, 2005 WL 485971, slip op. at *3 (D.D.C. Feb. 25, 2005) (converting jurisdictional challenge styled as a motion under Federal Rule of Civil Procedure 12(h)(3) into a Rule 12(b)(1) motion); see also Haase v. Sessions, 835 F.2d 902, 905-07 (D.C. Cir. 1987) (discussing conversion of motions under the Federal Rules of Civil Procedure).
However, the proper procedural foundation of the defendants' motion is unclear, as the discussion below will demonstrate. Accordingly, the Court is cognizant of the possibility that the exhaustion argument in the defendants' motion might also be properly read as a charge that the plaintiff has failed to state claims upon which relief may be granted, requiring the Court to proceed under the law governing motions brought under Rule 12(b)(6).
The Court agrees with the defendants' contentions in this regard. While the plaintiff claims that the District has "refused" to arbitrate her grievance, she does not allege any facts in her complaint to rebut the District's contention that Johnson's arbitration is merely "on hold" while the dispute over the validity of the arbitration clause in the collective bargaining agreement is resolved. Even construing the allegations in the complaint as true, as the Court must on this type of motion, there is no inconsistency in concluding that the arbitration procedure under the collective bargaining agreement may, in the near future, result in the resolution of the plaintiff's claims. In other words, the plaintiff has failed to allege that the District has actually refused to participate in arbitrating her grievance in the future. There are not even any factual predicates in the complaint to support an inference to that effect. As such, Johnson's arbitration remedy has yet to be finalized, ...