United States District Court, District of Columbia
G. Sullivan United States District Judge
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.
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.
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.
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.
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.
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.
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).
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
Standard of Review
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).
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.
Dr. Cohen's Claims are Not Time-Barred
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).
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.
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.
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).
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). 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.
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.
Dr. Cohen's Common Law Claims (Counts 2-6) are Dismissed
for Failure to Exhaust Administrative Remedies
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.
The CMPA and the Sixth Master Agreement
“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 ...