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Britton v. Government of the Dist. of Columbia


January 23, 2007


The opinion of the court was delivered by: Richard W. Roberts United States District Judge


Plaintiff Patricia B. Britton brought this action alleging that the Government of the District of Columbia (the "District") fired her because she is a woman, and that her termination constituted a breach of confidentiality and violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-17 (2000); the Civil Rights Act of 1871, 42 U.S.C. § 1983; the Civil Rights Act of 1866; the Bill of Rights; the U.S. Constitution; and D.C. Department of Corrections Order 3310.2. The District has moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6), claiming that it fails to state a claim for which relief can be granted. Because Britton is neither required to make out a prima facie case of discrimination at the pleading stage under Title VII nor subject to heightened pleading standards under § 1983, the District's motion to dismiss with regard to Britton's claim of gender discrimination will be denied. Because Britton fails to state a claim for improper termination, breach of confidentiality, or violations of the other constitutional and statutory provisions, the District's motion to dismiss will be granted as to those claims.


Britton was employed by the D.C. Department of Corrections (the "Department") for approximately 19 years. (Compl. ¶ 9.) She served as the Acting Director of the Department from May 11, 2001 through May 21, 2001. (Compl. ¶ 10.) On May 17, 2001, middle school students toured the Department's Central Detention Facility ("CDF"). During the tour, several of the students were subjected to a strip-search. (Compl. ¶ 14.) As a result of the incident, six male employees were allowed to resign or were placed on administrative leave. (Compl. ¶ 36.) Britton was terminated on May 29, 2001 without a hearing or prior notice. (Compl. ¶ 34.) The District has moved to dismiss the complaint for failure to state a claim as to each of the allegations.*fn1


A motion to dismiss should not be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The complaint must be construed in the light most favorable to the plaintiff and "the court must assume the truth of all well-pleaded allegations." Warren v. Dist. of Columbia, 353 F.3d 36, 39 (D.C. Cir. 2004). "However, the court need not accept inferences drawn by plaintiff[] if such inferences are unsupported by the facts set out in the complaint. Nor must the court accept legal conclusions cast in the form of factual allegations." Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). If a plaintiff fails to allege sufficient facts to support a claim, that claim must be dismissed. Rodriguez v. Nat'l Ctr. for Missing & Exploited Children, Civil Action No. 03-120, 2005 WL 736526, at *6 (D.D.C. Mar. 31, 2005).


A. Title VII Claim

The District moves to dismiss Britton's Title VII claim on the ground that Britton has not made a prima facie case of employment discrimination. While a plaintiff has the burden of establishing a prima facie case of discrimination at trial, McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the prima facie case requirement is "an evidentiary standard, not a pleading requirement" to be adhered to in the complaint. Swierkiewicz v. Sorema, 534 U.S. 506, 510, 512 (2002) (stating that "[g]iven that the prima facie case operates as a flexible evidentiary standard, it should not be transposed into a rigid pleading standard for discrimination cases"). In Sparrow v. United Air Lines, 216 F.3d 1111 (D.C. Cir. 2000), the D.C. Circuit held that to survive a Rule 12(b)(6) motion, a plaintiff alleging employment discrimination need not plead a prima facie case of discrimination. "'Because racial discrimination in employment is 'a claim upon which relief can be granted,' . . . 'I was turned down for a job because of my race' is all a complaint has to say.'" Id. at 1115 (quoting Bennett v. Schmidt, 153 F.3d 516, 518 (7th Cir. 1998)). Under Rule 8, a plaintiff's complaint alleging employment discrimination must contain "only a short and plain statement of the claim showing that the pleader is entitled to relief." Swierkiewicz, 534 U.S. at 512 (quoting Fed. R. Civ. P. 8(a)(2)).

In her complaint, Britton states that she is female and that she "was the only employee and only female terminated due to the incident." (Compl. ¶ 37.) Britton has made out the requisite showing for Title VII purposes to survive a motion to dismiss. The District's motion to dismiss as to Britton's claim of gender discrimination in violation of Title VII will be denied.

B. Section 1983 Claim

Britton also brings her gender discrimination claim under 42 U.S.C. § 1983, claiming municipal liability presumably for violation of her statutory right under Title VII to be free from sex discrimination in employment. Section 1983 provides a remedy for the "deprivation of 'rights, privileges, or immunities secured by the Constitution and laws' of the United States." Gonzaga Univ. v. Doe, 536 U.S. 273, 283 (2002). "To determine whether the complaint adequately alleges a claim of municipal liability, a two-step inquiry is involved: 'First, the court must determine whether the complaint states a claim for a predicate constitutional violation [or violation of a statutory right].*fn2 Second, if so, then the court must determine whether the complaint states a claim that a custom or policy of the municipality caused the violation.'" Mitchell v. Yates, 402 F. Supp. 2d 222, 231 (D.D.C. 2005) (quoting Baker v. Dist. of Columbia, 326 F.3d 1302, 1306 (D.C. Cir. 2003)). A municipality cannot be held liable under 42 U.S.C. § 1983 based on a theory of respondeat superior liability. Monell v. Dep't of Soc. Servs. of New York, 436 U.S. 658, 691-94 (1978). However, under the second prong of the municipal liability test, a plaintiff must allege, through an "affirmative link," that the municipal policy or custom was the "moving force" behind the violation. Baker, 326 F.3d at 1306.

The District moves to dismiss the complaint because Britton alleges that the District had of policy of favoring male employees in all employment actions "without citing a single regulation, departmental order, policy statement, or post order for factual support." (Def.'s Mem of P. & A. in Supp. of Mot. to Dismiss ("Def.'s Mot. to Dismiss") at 7.) However, the D.C. Circuit does not require heightened pleading standards for § 1983 claims and specifically rejected the notion that a plaintiff must "identify a specific custom, policy statement, or procedure" at the pleading stage. Atchinson v. Dist. of Columbia, 73 F.3d 418, 422 (D.C. Cir. 1996).*fn3 A plaintiff claiming a violation of § 1983 need only "'give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests,' not . . . state in detail the facts underlying the complaint." Atchinson, 73 F.3d at 421 (quoting Conley, 355 U.S. at 47); see also Leatherman v. Tarrant Cty. Narcotics Intelligence and Coordination Unit, 507 U.S. 163 (1993) (no heightened pleading standard in cases alleging municipal liability). Britton has alleged that the District "[b]y settled usage and a policy of many years' standing . . . has had a policy of favoring male employees and not favoring female employees in hiring, working conditions, promotions, and firing" which motivated her termination. (Compl. Ct. I ¶ 40.) As to the second prong of the municipal liability test, Britton has met her burden of satisfying the pleading requirements of Rule 8.

Britton has also pled a predicate statutory violation to meet the first prong of the test. Title VII prohibits employers from discriminating against employees on the basis of their gender in the terms and conditions of their employment. 42 U.S.C. § 2000e-2(a)(1); Burlington N. & Santa Fe Ry. Co. v. White, 126 S.Ct. 2405, 2408 (2006). Britton's allegations that similarly situated males were not treated the same as she was gives rise to a reasonable inference that illegal gender-based distinctions were at play in her termination. Accordingly, the District's motion to dismiss as to Britton's claim of gender discrimination in violation of § 1983 will be denied.


A. Section 1983 Claim

Britton also brings a § 1983 claim for improper termination. "[A] municipality can be liable under section 1983 'when execution of a government's policy or custom . . . inflicts [an] injury.'" Atchinson, 73 F.3d at 420 (quoting Monell, 436 U.S. at 694). The District moves to dismiss the improper termination claim arguing that it fails to comply with Fed. R. Civ. P. 8. Britton does allege that the District improperly terminated her without due process, without notice, without a fair hearing, and "by alleging misconduct on her part and failing to substantiate the allegations." (Compl. ¶¶ 34, 35; Ct. II ¶ 41.) However, she never explicitly argues that her termination is a violation of either substantive or procedural due process rights. Her allegations require analysis under each provision. See Save Our Schools-Southeast & Northeast v. D.C. Bd. of Educ., Civil Action No. 04-1500, 2006 WL 1827654, at *14 (D.D.C. July 3, 2006) (stating that because plaintiffs never clarified whether procedural or substantive due process was at issue, "the viability of both" was analyzed).

As to any procedural due process argument, even if the District specified certain due process procedures for its employees, since "'minimum [procedural] requirements [are] a matter of federal law, they are not diminished by the fact that the State may have specified its own procedures that it may deem adequate for determining preconditions to adverse official action.'" Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985) (internal citation omitted). A plaintiff asserting a substantive due process claim must factually allege that district officials are guilty of "grave unfairness in the discharge of their legal responsibilities[,]" Silverman v. Barry, 845 F.2d 1072, 1080 (D.C. Cir. 1988) (further stating that "[o]nly a substantial infringement of [District] law prompted by personal or group animus, or a deliberate flouting of the law that trammels significant personal or property rights, qualifies for relief under § 1983"), and that "no rational connection" exists between defendant's actions and the interests asserted by defendant. Harrah Indep. Sch. Dist. v. Martin, 440 U.S. 194, 198 (1979). See also Yates v. Dist. of Columbia, 324 F.3d 724, 725-26 (D.C. Cir. 2003) (engaging in substantive due process analysis in wrongful termination context).

Before procedural or substantive due process rights can attach, though, Britton must allege that she has an actual property interest in continued public employment through a statutory guarantee and that she cannot be terminated without due process. Cf. Loudermill, 470 U.S. at 538, 541 (further stating that "once it is determined that the Due Process Clause applies, 'the question remains what process is due'" (internal citations omitted)). "[F]or a plaintiff to survive a motion to dismiss under Rule 12(b)(6), he must allege, at a minimum, that he has been deprived of . . . [a] property interest protected by the due process clause." Save Our Schools, 2006 WL 1827654, at *14; see also Piroglu v. Coleman, 25 F.3d 1098, 1104 (D.C. Cir. 1994) (stating that a plaintiff must show "a legitimate expectation, based on rules (statutes or regulations) or understandings (contracts, express or implied), that she would continue in [her] job" (quoting Hall v. Ford, 856 F.2d 255, 265 (D.C. Cir. 1988)).

Britton never specifies a guarantee in District of Columbia law or explains the source of her property right to continued employment except to state that her termination violated the District's Departmental Order 3310.2.*fn4 (Compl. Ct. II ¶ 40.) However, the language of the Order does not reflect an employee's property right to continued public employment. Indeed, the Order itself contemplates that not all procedures for adverse employment actions would be followed in all circumstances. The Order states that "[p]rior to submission of the recommendation for disciplinary action against an employee to the Service Head, the employee involved must, if practicable, be personally interviewed by the Unit Chief." D.C. Department of Corrections, Department Order Number 3310.2, ¶4(d)(1) (Oct. 12, 1973) (emphasis added). Additionally, "[t]he employee must receive a written notice of at least fifteen (15) calendar days in advance, and in cases of removal, . . . thirty (30) calendar days in advance (except in emergency situations reserved for the Director's decision) of the action proposed, telling the employee specifically of the circumstances of the charge and how regulations are deemed to be violated." Id. at ¶4(e)(1) (emphasis added). Although Britton states that she was terminated without notice or hearing, the Department Order does not require notice of termination at the discretion of the Director. Britton does not allege that her termination did not stem from an emergency situation reserved for the Director's decision. "[A] benefit is not a protected entitlement if government officials may grant or deny it in their discretion." Town of Castle Rock v. Gonzales, 125 S.Ct. 2796, 2803 (2005). See also Doe v. Gates, 981 F.2d 1316, 1320 (D.C. Cir. 1993) ("The law is clear that if a statute relegates termination decisions to the discretion of the Director, no property entitlement exists.").

Additionally, Britton fails to respond to the defendant's argument that she has not pled that a certain level of process was due to her that she did not receive. See Stephenson v. Cox, 223 F. Supp. 2d 119, 121 (D.D.C. 2002) ("[W]hen a plaintiff files a response to a motion to dismiss but fails to address certain arguments made by the defendant, the court may treat those arguments as conceded . . . ."). Because Britton does not identify a statutorily-based property interest in continued employment that cannot be infringed without mandatory due process requirements, she fails to state a predicate constitutional injury and concedes defendant's argument. Accordingly, Britton's § 1983 claim of improper termination will be dismissed.

B. D.C. Department of Corrections Order 3310.2

Britton alleges that she was terminated in violation of D.C. Department of Corrections Order 3310.2. However, Britton presents no authority that an improper termination substantive cause of action exists at common law to remedy such conduct. See Dickson v. United States, 831 F. Supp. 893, 898 n.7 (D.D.C. 1993) (observing that because plaintiff's claim of improper termination in violation of internal policies was "devoid of any reference to a statutory or common-law cause of action," the court could not "ascertain the legal basis for Plaintiff's arguments that the CIA's violations of its regulations was 'illegal'"). Even if a substantive claim of improper termination exists at common law, Britton has not pled impropriety under the Department Order. Although she alleges that she was denied notice and a hearing, Britton never alleges that her termination without notice was not justified under the administrative protocol or that the Director did not have the discretion to terminate her employment at will. Her effort to bring an improper termination claim under a constitutional due process theory failed, as is discussed above, and she has not brought her claim under a breach of contract theory. See Daisley v. Riggs Bank, 372 F. Supp. 2d 61, 67 (D.D.C. 2005) (stating that "[u]nder District of Columbia law, 'the mutual promise to employ and serve creates a contract terminable "at will" by either party'" (internal citation omitted)); Wilkinson v. Legal Servs. Corp., 27 F. Supp. 2d 32, 34 (D.D.C. 1998) ("When brought against a private employer, a discharged employee's claim based on a personnel manual is generally styled as a breach of contract, alleging that the manual is binding on the employer because it incorporates the terms of an express or implied agreement. If the claim is brought against a government agency, a discharged employee may argue that the personnel manual gave rise to a 'property' interest in continued employment that was deprived without due process of law . . . ."). Because "'[t]he federal court is not the appropriate forum in which to review the multitude of personnel decisions that are made daily by public agencies[,]'" Mazaleski v. Treusdell, 562 F.2d 701, 722 (D.C. Cir. 1977) (quoting Bishop v. Wood, 426 U.S. 341, 349 (1976)), and Britton has not pled that her termination violated applicable "procedural safeguards created by the employer[,]" id., Britton's claim of improper termination in violation of D.C. Department of Corrections Order 3310.2 will be dismissed.


Britton fails, under Fed. R. Civ. P. 8(a)(2), to include any plain factual statement regarding what confidentiality existed or how it was breached that would show that she is entitled to relief. Britton asserts that Count Two states a cause of action because "[u]nder the D.C. statutes, Mayor's Orders, the Department of Corrections Rules and Orders, D.C. should not have discriminated against Ms. Britton because she is female. She should not have been discharged because she is female.

Ms. Britton complained of this conduct but [t]here never was an investigation of her charges of discrimination. She never received a hearing." (Pl.'s Opp'n to Mot. to Dismiss ("Pl.'s Opp'n.") at 11.) This statement neither demonstrates how the District breached any confidentiality nor explains "why a public employee's termination warrants confidentiality." (Def.'s Mot. to Dismiss at 10.) Moreover, Britton's opposition does not respond to the District's arguments regarding her failure to sufficiently plead breach of confidentiality. Thus, Britton fails to state a claim as to breach of confidentiality and the District's motion to dismiss as to this issue will be deemed conceded. Stephenson, 223 F. Supp. 2d at 121.


Britton has sufficiently stated a claim that the District engaged in discrimination based on sex in violation of Title VII and 42 U.S.C. § 1983. The District's motion to dismiss will be denied as to Britton's claim of gender discrimination. However, Britton has failed to state a claim that the District breached any confidentiality or violated Department Order 3310.2, her procedural and substantive due process rights in violation of 42 U.S.C. § 1983, the Constitution, the Bill of Rights, or the Civil Rights Act of 1866. Accordingly, it is hereby

ORDERED that the District's motion to dismiss [3] as to Britton's Title VII and 42 U.S.C. § 1983 claim for gender discrimination be, and hereby is, DENIED. It is further

ORDERED that the District's motion to dismiss as to Britton's remaining claims be, and hereby is, GRANTED. Britton's remaining claims are DISMISSED.

SIGNED this 23rd day of January, 2007.

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