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Cohen v. Board of Trustees of The University of The District of Columbia

United States District Court, District of Columbia

April 24, 2018

ROBERT COHEN, Plaintiff,
v.
BOARD OF TRUSTEES OF THE UNIVERSITY OF THE DISTRICT OF COLUMBIA, et al., Defendants.

          MEMORANDUM OPINION

          Emmet G. Sullivan United States District Judge

         I. Introduction

         Plaintiff Robert Cohen (“Dr. Cohen”) brings this action against the Board of Trustees of the University of the District of Columbia (“UDC”) and certain UDC officials in their individual capacities-including Professor Vernise Steadman, Provost Graeme Baxter, and President Allen Sessoms- (collectively, “defendants”) after he was terminated from his position as Professor. Dr. Cohen alleges six claims: (1) violation of his due process rights under 42 U.S.C. § 1983 (“Section 1983”) and Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) (“Bivens”); (2) trespass to chattel; (3) conversion; (4) bailee indebtedness; (5) negligence; and (6) intentional infliction of emotional distress. Second Am. Compl., ECF No. 22 ¶¶ 37-70. He requests compensatory and punitive damages. Id. ¶ 71. Pending before the Court is the defendants' motion to dismiss. Upon careful consideration of the defendants' motion, Dr. Cohen's response, the reply thereto, and the applicable law, the defendants' motion to dismiss is hereby GRANTED IN PART and DENIED IN PART. Dr. Cohen's due process claim pursuant to Section 1983 against the UDC Board of Trustees, President Sessoms, and Provost Baxter may proceed.

         II. Background

         A. Factual Background

         As this matter is before the Court on defendants' motion to dismiss, the Court will assume that the following allegations in the complaint and attachments thereto are true. Dr. Cohen had been a tenured professor at UDC since 1976. Second Am. Compl., ECF No. 22 ¶ 3. In August 2010, he was terminated for failing to submit teaching evaluations for academic years 2006-2007, 2007-2008, and 2008-2009. Id. ¶¶ 14-17. For about a year prior to his termination, Dr. Cohen and defendants had been in a dispute over these evaluations, resulting in warnings, suspension without pay, a final opportunity to submit the evaluations, and ultimately, termination. Letter from Provost Graeme Baxter (“Baxter Letter”), ECF No. 22-2.

         On June 18, 2010, then-Provost Graeme Baxter sent Dr. Cohen a final notice of the missing evaluations, requesting a completed evaluation portfolio within twenty-one days and warning that failure to submit the portfolio would subject Dr. Cohen “to additional disciplinary action which could include termination.” Id. However, Dr. Cohen was not aware of the letter and did not timely receive it. Second Am. Compl., ECF No. 22 ¶¶ 30-32; Letter Appealing Termination to President Sessoms (“Appeal Letter”), ECF No. 22-4. On August 5, 2010, having received no response, Provost Baxter sent Dr. Cohen a letter terminating him for cause pursuant to the collective bargaining agreement between UDC and its faculty, known as the “Sixth Master Agreement.” Second Am. Compl., ECF No. 22 ¶ 17; Termination Statement of Cause Letter (“Termination Letter”), ECF No. 22-3. The letter provided Dr. Cohen with appeal instructions, also pursuant to the Sixth Master Agreement. Id. Dr. Cohen became aware of his termination about two weeks later. Second Am. Compl., ECF No. 22 ¶ 18. He discovered that his office “had been seized and all his possessions and university documents had been taken.” Id. ¶ 20. Additionally, Dr. Cohen's UDC email address was closed and he “lost all his academic and administrative documents stored on UDC's system.” Id. ¶ 21.

         On September 1, 2010, Dr. Cohen appealed UDC's termination decision to then-UDC President Allen Sessoms, arguing in part that the Chairperson of his Department, Professor Vernise Steadman, did not submit one of his completed evaluations. Id. ¶ 23; Appeal Letter, ECF No. 22-4. UDC President Sessoms denied Dr. Cohen's appeal on September 8, 2010, finding it “not credible” that Dr. Cohen did not receive UDC's multiple communications. Denial Letter from President Sessoms (“Denial Letter”), ECF No. 22-5.

         Following the procedures set forth in the Sixth Master Agreement, Dr. Cohen then appealed President Sessoms' decision to his union--the UDC Faculty Association (“the Association”)-- for arbitration. Pl.'s Opp'n, ECF No. 25 at 8. However, the Association “refused to represent him.” Id. Rather than appealing the Association's refusal to arbitrate as an unfair labor practice to the Public Employee Relations Board (“PERB”) pursuant to the Comprehensive Merit Personnel Act (“CMPA”), D.C. Code § 1-605.02, Dr. Cohen filed this action.

         B. Procedural Background

         Dr. Cohen originally filed a breach of contract claim against the defendants in the Superior Court of the District of Columbia (“Superior Court”) on September 9, 2013. Defs.' Mot., ECF No. 24 at 1. On March 14, 2014, his claim was dismissed with prejudice, although the Superior Court granted Dr. Cohen leave to file an amended complaint. Id. at 2. On April 2, 2014, Dr. Cohen filed an amended complaint, alleging the claims currently before the Court. See First Am. Compl., ECF No. 2-2 at 100-06. In light of the federal due process claim, the defendants removed the case to this Court on April 30, 2014. See Notice of Removal, ECF No. 1.

         This Court dismissed Dr. Cohen's first amended complaint with prejudice after Dr. Cohen failed to timely respond to the defendants' motion to dismiss and to the defendants' opposition to his already-late motion for an extension of time. Cohen v. Bd. of Trs. of the Univ. of the District of Columbia, 305 F.R.D. 10 (D.D.C. 2014). On appeal, the Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) affirmed this Court's “denial of Cohen's motion to extend time and its dismissal of the complaint, ” but reversed the Court's dismissal “insofar as it dismissed the complaint with prejudice.” Cohen v. Bd. of Trs. for the Univ. of Univ. of the District of Columbia, 819 F.3d 476, 485 (D.C. Cir. 2016).

         Accordingly, Dr. Cohen filed a second amended complaint on August 1, 2016. See Second Am. Compl., ECF No. 22. Defendants filed a motion to dismiss on September 19, 2016. See Defs.' Mot., ECF. No 24. This motion is ripe and ready for review.

         III. Standard of Review

         A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests the legal sufficiency of a complaint.” Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). 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. A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations and quotations omitted).

         In considering a motion to dismiss, the Court should liberally view the complaint in the plaintiff's favor, accepting all factual allegations as true, and giving the plaintiff the benefit of all inferences that can be drawn therefrom. Redding v. Edwards, 569 F.Supp.2d 129, 131 (D.D.C. 2008) (citing Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994)). Nevertheless, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. “While detailed factual allegations are not necessary, [the] plaintiff must plead enough facts to ‘raise a right to relief above the speculative level.'” Morello v. District of Columbia, 73 F.Supp.3d 1, 3 (D.D.C. 2014) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, (2007)). The court “may consider attachments to the complaint as well as the allegations contained in the complaint itself.” English v. District of Columbia, 717 F.3d 968, 971 (D.C. Cir. 2013). As discussed above, Dr. Cohen attaches several exhibits to his complaint, including the Sixth Master Agreement and his communications with the defendants.

         IV. Analysis

         A. Dr. Cohen's Claims are Not Time-Barred

         The defendants move to dismiss all of Dr. Cohen's claims on statutes of limitations grounds. See Defs.' Mot., ECF No. 24 at 10-15. Federal Rule of Civil Procedure 12(b)(6) “is the vehicle for asserting the affirmative defense of statutory time limitation.” Peart v. Latham & Watkins LLP, 985 F.Supp.2d 72, 80 (D.D.C. 2013). Because statutes of limitations issues often depend on contested questions of fact, “a defendant is entitled to succeed on a Rule 12(b)(6) motion to dismiss brought on statutes of limitations grounds only if the facts that give rise to this affirmative defense are clear on the face of the plaintiff's complaint.” Lattisaw v. District of Columbia, 118 F.Supp.3d 142, 153 (D.D.C. 2015).

         The defendants argue that all of Dr. Cohen's asserted claims in the second amended complaint are conclusively time-barred. See Defs.' Mot., ECF No. 24 at 10-15. They reason that the statutes of limitations for his claims began to run when the claims accrued on September 10, 2010, the date that Dr. Cohen learned that President Sessoms had denied his termination appeal. Id. According to the defendants, the statutes of limitations ran through August 1, 2016, the date that Dr. Cohen filed his second amended complaint. See Id. at 11-15. Because all of the claims are undisputedly subject to three-year statutes of limitations, the defendants argue that all of Dr. Cohen's claims have been filed about three years too late. Id. at 12-14.

         The defendants assert that the August 1, 2016 filing date is the date when the statutes of limitations were finally tolled because this Court dismissed Dr. Cohen's first amended complaint, which had been filed on April 2, 2014. Id. at 13. That July 7, 2014 dismissal, according to the defendants, “wiped out” the prior complaint filing's tolling effect. Id. (quoting Ciralsky v. CIA, 355 F.3d 661, 672 (D.C. Cir. 2004)). Thus, the defendants reason that the three-year statutes of limitations started running from the time Dr. Cohen's claims accrued in 2010 and did not stop for six years-until Dr. Cohen filed his second amended complaint on August 1, 2016. The Court disagrees.

         The defendants' statutes of limitations argument fails in the face of the “mandate rule.” Under that rule, “an inferior court has no power or authority to deviate from the mandate issued by an appellate court.” Indep. Petroleum Ass'n of Am. v. Babbitt, 235 F.3d 588, 596-97 (D.C. Cir. 2001)(citing Briggs v. Pa. R.R. Co., 334 U.S. 304, 306 (1948)). The mandate rule is “a ‘more powerful version' of the law-of-the-case doctrine, which prevents courts from reconsidering issues that have already been decided in the same case.” Id. at 597 (quoting LaShawn A. v. Barry, 87 F.3d 1389, 1393 n.3 (D.C. Cir. 1996) (en banc)). The rule's scope extends to issues that were decided by the D.C. Circuit “either explicitly or by necessary implication.” United States v. Ins. Co. of N. Am., 131 F.3d 1037, 1041 (D.C. Cir. 1997).

         On appeal, the D.C. Circuit reversed this Court insofar as it had dismissed Dr. Cohen's complaint with prejudice, thus dismissing the case. Cohen, 819 F.3d at 485. Consequently, this Court's July 7, 2014 Order ultimately had the effect of dismissing Dr. Cohen's first amended complaint without prejudice, and did not dismiss his case. See Mandate of USCA, ECF No. 21. The D.C. Circuit explained that although dismissal of the complaint and the case would have wiped out a previously-filed complaint's tolling effect, dismissal of only the complaint, and not the case, would have no such result. Cohen, 819 F.3d at 478-79. Accordingly, the D.C. Circuit concluded that Dr. Cohen is “free to file an amended complaint” with the statute of limitations “tolled from the date of his original complaint.” Id. at 478-79, 484 (emphasis added).[1] Thus, Dr. Cohen's second amended complaint, filed on August 1, 2016, is not time-barred because the applicable statutes of limitations were tolled from the date that his original complaint was filed: September 9, 2013.

         The D.C. Circuit's mandate disposes of this issue because the defendants argue that all of Dr. Cohen's claims are subject to three-year statutes of limitations. See Defs.' Mot., ECF No. 24 at 12-15. Further, defendants conceded that the original complaint filed on September 9, 2013 was timely. See Defs.' Reply, ECF No. 26 at 5 (explaining that the claim in Dr. Cohen's original complaint “was timely asserted”). Stated differently, because the statutes of limitations have been tolled from September 9, 2013, Cohen, 819 F.3d at 478-79, and because the defendants conceded that Dr. Cohen's claims with three-year limitations periods made as of that date were timely, see Defs.' Reply, ECF No. 26 at 5, all of Dr. Cohen's claims were timely. Accordingly, the applicable statutes of limitations pose no barrier for Dr. Cohen.

         B. Dr. Cohen's Common Law Claims (Counts 2-6) are Dismissed for Failure to Exhaust Administrative Remedies

         The defendants also argue that Dr. Cohen's common law claims for trespass to chattel, conversion, bailee indebtedness, negligence, and intentional infliction of emotional distress are preempted because he failed to exhaust the administrative remedies available to him pursuant to the CMPA, D.C. Code § 1- 601.01 et seq., and the Sixth Master Agreement. See Defs.' Mot., ECF No. 24 at 15-19. Dr. Cohen agrees that the Sixth Master Agreement governed his employment relationship with UDC, but he argues that he exhausted his administrative remedies. Pl.'s Opp'n, ECF No. 25 at 8 (calling the Sixth Master Agreement a “CMPA[-]sanctioned . . . collective bargaining agreement”). Alternatively, he argues that, for various reasons discussed more fully below, he was not required to exhaust administrative remedies. Id. at 8-13. The Court concludes that Dr. Cohen was required to exhaust the administrative remedies put in place by the Sixth Master Agreement and the CMPA. His common law claims are dismissed because he failed to do so.

         1. The CMPA and the Sixth Master Agreement

         The “CMPA provides for a comprehensive system of administrative review of employer actions--whether under CMPA itself through [the Office of Employee Appeals (“OEA”)] or under a union contract subject to PERB [review]--and in each case subject to judicial review in [the] Superior Court [of the District of Columbia].” District of Columbia v. Thompson, 593 A.2d 621, 633 (D.C. 1991); see D.C. Code § 1-601.01, et seq. The CMPA “create[s] a mechanism for addressing virtually every conceivable personnel issue among the District, its employees, and their ...


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