United States District Court, District of Columbia
BERYL A. HOWELL UNITED STATES DISTRICT JUDGE
The plaintiff, Nancy Shinabargar, proceeding pro se, brings this lawsuit against the Board of Trustees of the University of the District of Columbia (“UDC”), where the plaintiff formerly attended law school, and ten UDC employees, including the Dean and Associate Dean of the Law School, five professors, the Director of Public Safety, who also serves as the Campus Police Chief (“Director of Public Safety”), and the Assistant to the Vice President for Student Affairs, to challenge her suspension from the school. First Am. Compl. (“FAC”) ¶¶ 9–19, ECF No. 12.The gravamen of the plaintiff’s complaint is that she was suspended in retaliation for both her repeated reports of plagiarism by professors and other law students and for her repeated requests for accommodations for her alleged disabilities, see FAC ¶¶ 149–203, contrary to the stated explanations for her suspension, after three hearings, that the plaintiff engaged in threatening and otherwise inappropriate conduct, id. ¶¶ 150, 153. The defendants have moved to dismiss this case, see Defs.’ Mot. Dismiss (“Defs.’ Mot.”), ECF No. 52, and, for the reasons set forth below, this motion is granted.
At the outset, the Court notes that the record on this motion to dismiss is extensive. The plaintiff’s First Amended Complaint references numerous documents, 57 pages of which are attached as exhibits to her pleading. See generally FAC. The defendants’ moving papers include 35 additional pages of documentation referenced in the plaintiff’s First Amended Complaint, see Defs.’ Mot., Exs. A–F, ECF No. 52-1,  and the plaintiff, in opposition to the defendants’ motion, submitted over 200 pages of further documentation as exhibits, see Pl.’s Opp’n Defs.’ Mot. Dismiss (“Pl.’s Opp’n”), Exs. 1–35, ECF No. 54-1. In resolving the pending motion, the exhibits referenced in and attached to the plaintiff’s First Amended Complaint are considered. Mpoy v. Rhee, 758 F.3d 285, 291 n.1 (D.C. Cir. 2014) (“‘In determining whether a complaint fails to state a claim, we may consider only the facts alleged in the complaint, any documents either attached to or incorporated in the complaint and matters of which we may take judicial notice.’” (quoting EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997))). In addition, because the plaintiff is proceeding pro se, any additional exhibits, “including those in  opposition to  [defendants’] motion to dismiss, ” must be considered in construing the sufficiency of the plaintiff’s claims. Brown v. Whole Foods Market Grp., Inc., 789 F.3d 146, 152 (D.C. Cir. 2015) (reversing dismissal order where district court did not consider “the facts alleged in all of [the plaintiff’s] pleadings” (emphasis in the original)). The relevant facts distilled from this ample record are summarized below.
The plaintiff matriculated at the University of District of Columbia’s David A. Clarke School of Law (“UDC Law School”) on August 15, 2011, and completed only one semester, before her suspension on February 9, 2012. FAC ¶¶ 69, 101; Pl.’s Opp’n at 5. During her brief tenure at the law school, she made repeated complaints of purported acts of plagiarism, starting as early as only several days after classes began. In total, the plaintiff made at least fourteen reports of plagiarism to UDC officials, FAC ¶ 22, and several more to various government officials, including a United States Senator, the Secretary of Education, and the Director of the FBI, Pl.’s Opp’n, Ex. 19 (Pl.’s Letter to Sen. Reid, dated Sept. 10, 2011) at 101, ECF No. 54-1; Pl.’s Opp’n, Ex. 19 (Pl.’s Letter to Sen. Reid, dated Feb. 6, 2012) at 98, ECF No. 54-1; FAC, Ex. C (Pl.’s Letter to the Secretary of Education, dated Sept. 4, 2013) at 67, ECF No. 12; Pl.’s Opp’n, Ex. 17 (Pl.’s Letter to Director of FBI, dated Dec. 8, 2011), ECF No. 54-1.
By the time of her suspension, the plaintiff, who suffers from spinal disorder and lymphangioma in her foot, also made numerous requests for reasonable accommodations to help her in “managing her 80-85 pound daily Law Book load, ” since her conditions affected her mobility and her ability to lift weight. FAC ¶¶ 5, 138. In October 2011, the plaintiff obtained, through a lottery, a book locker, Pl.’s Opp’n at 5, but she complained, that this locker was inadequate because it was located “outside of Defendant University Law School’s Steam Room where the nightly steam damaged [her] expensive law books if . . . left . . . overnight, ” FAC ¶ 139. Unsatisfied with the accommodation she received, the plaintiff requested for herself, and on behalf of “similarly situated students at the Law School, ” lockers in another location to prevent steam damage to her books. Id. Additionally, the plaintiff, who does not allege that her accessibility to classrooms and libraries was in any way limited, requested, as a reasonable accommodation, that the school turn a room into a private “study carrel area for ADA students, ” accessible “by means of a card-reading pass key lock, ” and better seating assignments for students with mobility devices. Id. Ultimately, the plaintiff alleges she made “28 explicit requests for ADA reasonable accommodation from Defendant Board, ” including requests she made to a United States Senator, an Ombudsman for the United States Department of Education, the Equal Opportunity, ADA and Title IX Coordinator at UDC, and the Secretary of Education. Pl.’s Opp’n, Ex. 1 (“List of 28 ADA Requests”) at 2, 8 ECF No. 54-1. The plaintiff claims that UDC rejected these requests for accommodations. FAC ¶ 139.
On February 8, 2011, during the plaintiff’s second semester at UDC Law School, the plaintiff received an email notice from the Assistant to the Vice President for Student Affairs about “an incident report, ” accusing her of violating the UDC Code of Student Conduct, and directing her to “appear for a . . . hearing . . . on Wednesday, February 15, 2012.” Pl.’s Opp’n, Ex. 21 (“Notice of Disciplinary Hearing, dated Feb. 8, 2012”) at 114–15, ECF No. 54-1. The Notice accused the plaintiff of the following inappropriate conduct: (1) “using lewd, threatening, and racially insensitive remarks towards another UDC Law School Student, ” on February 4, 2012; (2) making “false remarks/statements (rumors) about another UDC Law School student to [sic] where [she] made claims and speculated that the student was addicted to drugs and looked ‘strung out, ’” and “spreading rumors . . . that this same student . . . is the victim of spousal abuse, ” on February 7, 2012; and (3) being “verbally abusive and accused another UDC Law School student of stealing [her] Civ Pro notes, ” on February 8, 2012. Id. at 114. The Notice advised the plaintiff of her “right to bring to this hearing any information, evidence, witnesses, or an advisor.” Id. at 115.
The next day, on February 9, 2012, the plaintiff alleges she met with the Associate Dean of Students to discuss, among other things, an FBI report the plaintiff made regarding a potential security threat near the White House. Pl.’s Letter to the Secretary of Education, dated Sept. 4, 2013 at 71. The Associate Dean, however, understood the plaintiff’s statements during the conversation to represent a threat upon the life of the President of the United States, prompting the Associate Dean to email the Dean of the Law School to report the threat. Id. at 75. Later the same day, at around 1p.m., the Associate Dean appeared with “five UDC PD in tow, with guns and handcuffs, ” FAC ¶ 62, and they led the plaintiff to a conference room “at gunpoint, ” id. ¶ 63. The plaintiff alleges that two United States Secret Service Agents then arrived to interrogate the plaintiff for two hours regarding her “politics and about ‘assassinations.’” Id. ¶ 64. According to the plaintiff, the interrogation was fake and “staged” by the Associate Dean, as evidenced by the fact the “two ‘U.S. Secret Service Agents’ did not seem to know  Judge Pryor[, ]” a senior judge on the D.C. Court of Appeals, and a criminal law professor at UDC Law School. Pl.’s Letter to the Secretary of Education, dated Sept. 4, 2013 at 71.
After the interrogation, the plaintiff alleges five UDC campus policemen approached her as she was walking towards the library. FAC ¶ 68. One of the police officers pushed her “against the wall until Plaintiff fell to the ground, ” id., at which point, the Assistant to the Vice President for Student Affairs “thrust” another letter notifying the plaintiff that she had been placed on “interim suspension, ” id. ¶ 69, due to misconduct in the office of the Associate Dean earlier in the same day. The letter accused the plaintiff of “inappropriate behavior” in violation of, inter alia, a section of the UDC Code of Student Conduct section regarding “Terroristic Threats.” Pl.’s Opp’n, Ex. 25 (“Notice of Interim Suspension, dated Feb. 9, 2012”) at 133, ECF No. 54-1. A disciplinary hearing was scheduled for February 14, 2012, to determine whether the plaintiff should remain suspended. Id. The letter, again, advised the plaintiff that she had “the right to bring to this hearing any information, evidence, witnesses, or an advisor.” Id. at 134.
On February 14, 2012, the plaintiff attended the scheduled disciplinary hearing, where she “denied all of the terms and contents ascribing wrongdoing to her in the University’s official notices.” FAC ¶¶ 72, 80, 85. During the hearing, the plaintiff alleges that “(1) no evidence or a list of witnesses” were provided; “(2) no fact-finding process based on any factually-based allegation or witness statement occurred . . .; (3) Plaintiff was not allowed to respond with her own facts and witnesses; and (4) there was no summary of any violation Plaintiff had committed.” Id. ¶ 72. The plaintiff further alleges that she was not allowed (1) to describe any of the “disability slurs or disability stunts” made against the plaintiff by her fellow classmates, id. ¶ 80, such as a student who “used to make the Sign of the Cross whenever Plaintiff came into the classroom, ” id. ¶ 79; (2) to bring “her Handicapped Book Cart into the hearing” in order to “demonstrate how it might have irrationally bothered some Law Students, ” id. ¶ 81; or (3) to “discuss any plagiarism, ” Pl.’s Letter to the Secretary of Education, dated Sept. 3, 2013 at 92. According to the plaintiff, the Assistant to the Vice President for Student Affairs at UDC denied her the opportunity to raise these other issues on grounds that “[t]his is about [the plaintiff]” rather than the behavior of other students and faculty members. Id.
On February 15, 2015, the plaintiff received a letter informing her that, following the disciplinary hearing from the previous day, her “interim suspension has been modified to a suspension.” Pl.’s Opp’n, Ex. 26 (“Notice of Suspension, dated Feb. 15, 2012”) at 140, ECF No. 54-1. UDC conditioned the plaintiff’s readmission on her obtaining “a psychological assessment with an external agent (i.e. Psychologist, Psychiatrist, or Licensed Clinical Social Worker), ” and clearance from the external agent. Id. at 139. Finally, UDC apprised the plaintiff of her “right to appeal the result of this hearing, ” within five business days, based on “(1) Discovery of New Information, (2) Procedural Error, and (3) Sanction not within permissible scope of discipline.” Id. The plaintiff appealed her suspension the next day to the Vice President for Student Affairs, claiming that (1) an administrative law judge did not preside over her hearing; (2) the student witness against her was not credible; (3) the plaintiff denied knowing “the exact date, time and person(s) and elements of the violations;” and (4) she wanted to “introduce new facts as to why false allegations may have been made, ” such as making an “EEOC Complaint” against a professor for “sexual harassment” for sitting with his legs open during office hours, and for complaining about a UDC campus police officer who made “a sexually lewd comment to [the plaintiff.]” Pl.’s Opp’n, Ex. 26 (Pl.’s First Appeal, dated Feb. 16, 2012) at 143–45, ECF No. 54-1. The plaintiff accused UDC of “not [playing] by the rules of the United States Constitution” because “UDC is an AFSCME shop[, ] it plays by AFSCME rules, ” and she threatened to “take [her] concerns to the ABA.” Id. at 146. Finally, the plaintiff asked the Vice President to “please tell AFSCME and the Other Unions in DC that [she] will be going to Portland, OR” to reopen a court case there. Id.
On February 27, 2012, the plaintiff attended an appeal hearing at UDC, regarding her challenge to the February 15, 2012 decision to suspend her. Pl.’s Letter to the Secretary of Education, dated Sept. 4, 2013 at 72. During the hearing, another first-year student at the law school testified that he heard the plaintiff “say the words ‘Obama’ and ‘assassination.’” Id. Additionally, the Associate Dean’s email to the Dean of the Law School, which detailed the plaintiff’s threat upon the President’s life, was presented as further evidence of the plaintiff’s “inappropriate behavior” leading to her suspension. Id. at 69.
On March 1, 2012, the plaintiff attended a third disciplinary hearing concerning the first notice, dated February 8, 2012, regarding her offensive behavior toward other students at the law school, in violation of the UDC Code of Student Conduct. Pl.’s Opp’n, Ex. 26 (Denial of Pl.’s Appeal, dated Mar. 15, 2015) at 147, ECF No. 54-1. The plaintiff was found guilty of the violations listed in the Notice and remained suspended. The plaintiff appealed that decision to the Vice President for Student Affairs on March 6, 2012, raising both procedural and factual objections. Pl.’s Opp’n, Ex. 26 (Pl.’s Second Appeal, dated Mar. 6, 2012) at 149, ECF No. 54-1. The Vice President denied the appeal because the plaintiff “fail[ed] to demonstrate failure by the University to conform to the Code of Student Conduct in a manner reasonably likely to have affected the outcome of [her] hearing, ” and because the factual objections raised by the plaintiff in her appeal were not “new information . . . that was unavailable to [her] at the time of the hearing, ” and, in any event, she had failed to demonstrate that “the new information is likely to affect the outcome of the hearing.” Denial of Pl.’s Appeal, dated Mar. 15, 2015 at 147–48.
Even after the plaintiff was suspended, she continued to report plagiarism at the law school, see e.g., Pl.’s Opp’n, Ex. 29 (Pl.’s Email to UDC Law School Dean, dated Mar. 22, 2012) at 169, ECF No. 54-1; id., Ex. 29 (Pl.’s Email to UDC VP, dated Feb. 27, 2012) at 170, ECF No. 54-1, and to protest UDC Law School’s purported refusal to accommodate her disabilities, see e.g., id., Ex. 1 (Pl.’s Letter to UDC ADA Coordinator, dated Mar. 22, 2012); id., Ex. 2 (Pl.’s Emails to Dep’t of Ed., dated Mar. 22, 2012) at 16, ECF No. 54-1; id., Ex. 2 (Pl.’s Emails to Dep’t of Ed., dated Apr. 3, 2012) at 17, ECF No. 54-1.
The plaintiff also continued to challenge her suspension. On September 3, 2013, the plaintiff allegedly sent to the Secretary of Education a 27-page single-spaced letter alleging that her suspension was a cover-up orchestrated by the Associate Dean to hide that she “never set up an ABA Complaint Process as the ABA required.” Pl.’s Letter to the Secretary of Education, dated Sept. 3, 2013 at 75. On February 4, 2014, two years after her suspension from UDC Law School, the plaintiff filed the instant complaint in the United States District Court for the District of Nevada. See generally Compl., ECF No. 1. On March 4, 2015, the district court granted in part the defendants’ motion to dismiss, transferring the action to the United States District Court for the District of Columbia. See Order Granting, in Part, Defendants’ Motion to Dismiss, dated Mar. 4, 2015, ECF No. 46.
In her First Amended Complaint, the plaintiff asserts a total of eleven claims, alleging retaliation in violation of the Rehabilitation Act, U.S.C. 29 U.S.C. § 701, et seq., the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq., Title VII of the Civil Rights Act (“Title VII”), 42 U.S.C. § 2000e, et seq., and the First Amendment, FAC (Counts 1 and 2), violation of the Due Process Clause of the Fifth Amendment, id. (Count 3); breach of contract and the implied covenant of good faith and fair dealing, id. (Counts 4, 5, 7, 8); fraudulent misrepresentations, id. (Counts 6 and 9); exclusion from the law school due to her disability in violation of the Rehabilitation Act and the ADA, id. (Count 10); and defamation, id. (Count 11).
The defendants’ second motion to dismiss is now ripe for resolution. See generally Defs.’ Mot. Dismiss, ECF No. 52.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 8(a)(2) requires that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief, ” to encourage brevity and, at the same time, “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (ellipses in original; internal quotations and citations omitted); Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 319 (2007). The Supreme Court has cautioned that although “Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era,  it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009).
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the “complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Wood v. Moss, 134 S.Ct. 2056, 2067 (2014) (quoting Iqbal, 556 U.S. at 678). A claim is facially plausible when the plaintiff pleads factual content that is more than “‘merely consistent with’ a defendant’s liability, ” but “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556–57); see also Rudder v. Williams, 666 F.3d 790, 794 (D.C. Cir. 2012). Although “detailed factual allegations” are not required to withstand a Rule 12(b)(6) motion, a complaint must offer “more than labels and conclusions” or “formulaic recitation of the elements of a cause of action” to provide “grounds” of “entitle[ment] to relief, ” Twombly, 550 U.S. at 555 (alteration in original), and “nudge[ ] [the] claims across the line from conceivable to plausible, ” id. at 570. Thus, “a complaint [does not] suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557) (second alteration in the original). In considering a motion to dismiss for failure to plead a claim on which relief can be granted, the court must consider the complaint in its entirety, accepting all factual allegations in the complaint as true, even if doubtful in fact. Twombly, 550 U.S. at 555; Harris v. D.C. Water and Sewer Auth., 791 F.3d 65, 68 (D.C. Cir. 2015) (in considering Rule 12(b)(6) motion, the “court must accept as true all of the allegations contained in a complaint” and “to draw the reasonable inference” therefrom “that the defendant is liable for the misconduct alleged, ” but that tenet “is inapplicable to legal conclusions, ” and “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice” (internal quotations and citations omitted)).
Where, as here, the plaintiff is proceeding pro se, the court must “‘liberally construe’” the complaint, applying “‘less stringent standards than formal pleadings drafted by lawyers.’” Abdelfattah v. U.S. Dep’t of Homeland Sec., 787 F.3d 524, 533 (D.C. Cir. 2015) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)); Cutler v. U.S. Dep’t of Health and Human Servs., 797 F.3d 1173, 1179 (D.C. Cir. 2015) (same). The Court must consider “a pro se litigant’s complaint in light of’ all filings, ” Brown, 789 F.3d at 152 (internal quotations omitted), including any “affidavits and exhibits . . . filed by a pro se litigant [that] were intended to clarify the allegations in the complaint, ” Abdelfattah, 787 F.3d at 529 (citing Atherton, 567 F.3d at 677). Thus, the pro se litigant may, “in effect, supplement his complaint with the allegations included in his opposition.” Brown, 789 F.3d at 152. Nonetheless, the pro se plaintiff must still “plead ‘factual matters that permit [us] to infer more than the mere possibility of misconduct.” Abdelfattah at 533 (quoting Jones v. Horne, 634 F.3d 588, 596 (D.C. Cir. 2011)).
The defendants seek dismissal of all eleven claims asserted by the plaintiff for failure to state a claim, under Federal Rule of Civil Procedure 12(b)(6). The parties’ arguments regarding each claim are discussed seriatim below.
A. Count 1: Retaliation Claim Under the Rehabilitation Act, the ADA and Title VII
In Count 1, the plaintiff alleges that UDC violated the Rehabilitation Act, 29 U.S.C. § 701 et seq., and the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., by suspending her “solely” for “engaging in her protected civil rights activity, ” and seeking “reasonable accommodation” as required by the ADA and the Rehabilitation Act. FAC ¶ 150. The sufficiency ...