The opinion of the court was delivered by: John D. Bates United States District Judge
Plaintiff David H. Sledge brings suit against the District of Columbia for race discrimination and retaliation. Sledge, an African-American man, is an employee of the District of Columbia Metropolitan Police Department ("MPD"). He alleges that MPD intentionally discriminated against him because of his race and retaliated against him for opposing discriminatory disciplinary practices. He asserts claims under 42 US.C. § 1981, 42 U.S.C. § 1983, and Title VII of the Civil Rights Act.
The District now moves to dismiss plaintiff's claim under 42 U.S.C. § 1981. The District argues that Sledge cannot assert a private right of action against a state actor under § 1981. For the reasons set out below, the Court will grant defendant's motion and dismiss plaintiff's § 1981 claim.
Sledge began to complain about being the victim of discrimination in November 2008, Compl. (Oct. 25, 2011) [Docket Entry 1] ¶ 21, but the relevant events predominantly occurred following a triple homicide on February 1, 2009, that was investigated by MPD. Internal Affairs initiated an investigation regarding Sledge's alleged failure to ensure a plan of action regarding the homicides and for failing to be prepared for a related briefing. Compl. ¶ 23. The investigation also dealt with his alleged failure to complete assigned tasks and to inform his immediate supervisor of those tasks. Id.
On February 12, 2009, Sledge met with an Equal Employment Opportunity/Diversity Officer about his concerns regarding racial discrimination and retaliation. See Compl. ¶ 14. On March 3, 2009, he filed a discrimination complaint against his employer with the Equal Employment Opportunity Commission. Compl. ¶ 33. After Sledge complained, his supervisor indicated she intended to have him demoted. Compl. ¶ 17. His request that he be removed from that supervisor's supervision was denied. Compl. ¶¶ 34-35. On June 24, 2009, following the Internal Affairs investigation, Sledge received notice that he would be demoted to lieutenant as a result of the events concerning the February 1, 2009 homicides. Compl. ¶ 24. He appealed the final notice, and was instead suspended in lieu of a demotion for twenty days without pay. Compl. ¶¶ 24-25.
Sledge alleges that the penalty he received was more severe than penalties that similarly situated white officers received for similar or greater infractions. See Compl. ¶¶ 26, 45. In addition to his demotion, Sledge was involuntarily transferred twice and lost seniority status as a result of those transfers. Compl. ¶ 56. He alleges that MPD intentionally discriminated against him because of his race, Compl. ¶ 101, and disparately disciplined him in comparison to fellow white police officers. Compl. ¶ 45.
All that the Federal Rules of Civil Procedure require of a complaint is that it contain "'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'"
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); accord Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). Although "detailed factual allegations" are not necessary to withstand a Rule 12(b)(6) motion to dismiss, to provide the "grounds" of "entitle[ment] to relief," a plaintiff must furnish "more than labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555--56; see also Papasan v. Allain, 478 U.S. 265, 286 (1986). "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 (2009) (quoting Twombly, 550 U.S. at 570); accord Atherton v. Dist. of Columbia Office of the Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009). A complaint is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. This amounts to a "two-pronged approach" under which a court first identifies the factual allegations entitled to an assumption of truth and then determines "whether they plausibly give rise to an entitlement to relief." Id. at 679-680.
The notice pleading rules are not meant to impose a great burden on a plaintiff. Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 347 (2005); see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512--13 (2002). When the sufficiency of a complaint is challenged by a motion to dismiss under Rule 12(b)(6), the plaintiff's factual allegations must be presumed true and should be liberally construed in his or her favor. Leatherman v. Tarrant Cnty. Narcotics & Coordination Unit, 507 U.S. 163, 164 (1993); Phillips v. Bureau of Prisons, 591 F.2d 966, 968 (D.C. Cir. 1979); see also Erickson, 551 U.S. at 94 (citing Twombly, 550 U.S. at 555--56). The plaintiff must be given every favorable inference that may be drawn from the allegations of fact. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000). However, "the court need not accept inferences drawn by plaintiffs if such inferences are unsupported by the facts set out in the complaint." Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). Nor does the court accept "a legal conclusion couched as a factual allegation," or "naked assertions [of unlawful misconduct] devoid of further factual enhancement." Iqbal, 556 U.S. at 678 (internal quotation marks omitted); see also Aktieselskabet AF 21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 17 n.4 (D.C. Cir. 2008) (explaining that the court has "never accepted legal conclusions cast in the form of factual allegations").
Defendant has moved for partial dismissal of the complaint, arguing that Sledge has failed to state a claim under 42 U.S.C. § 1981 because this section does not provide for a private right of action against state actors. Def.'s Mot. Partial Dismissal of Pl's Compl. (Dec. 23, 2001) [Docket Entry 5] ("Def.'s Mot.") at 5. Defendant contends that this case is controlled by Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 733 (1989), which held that 42 U.S.C. § 1983 provides the exclusive remedy for the violation of rights guaranteed by § 1981 when the alleged violation is by a state actor. Def.'s Mot. at 5-6. Plaintiff argues to the contrary that a § 1981 claim may be brought against the District in light of amendments to § 1981 made by the Civil Rights Act of 1991. Pl.'s Opp'n Def.'s Mot. Partial Dismissal of Compl. (Feb. 8, 2012) [Docket Entry 7] at 6-7. The D.C. Circuit has not previously addressed whether the Supreme Court's ruling in Jett was abrogated by the Civil Rights Act of 1991. See Moonblatt v. District of Columbia, 572 F. Supp. 2d 15, 26 n.4 (D.D.C. 2008).*fn1
In evaluating whether § 1981 as amended implies a private right of action, the Court must examine the rights-creating language of § 1981 and consider whether it provides a remedy. The Supreme Court has stated that "[t]he distinction between rights and remedies is fundamental. A right is a well founded or acknowledged claim; a remedy is the means employed to enforce a right or redress an injury." Chelentis v. Luckenbach, 247 U.S. 372, 384 (1918). Private rights of action to enforce federal law must be created by Congress. Touche Ross & Co. v. Redington, 442 U.S. 560, 578 (1979). Since § ...