United States District Court, District of Columbia
JAMES A. THOMPSON, JR. Plaintiff,
DISTRICT OF COLUMBIA, et al., Defendants.
Richard J. Leon, Judge
1985 through 1997, James A. Thompson, Jr.
("Thompson" or "plaintiff) was employed by the
District of Columbia ("District") Lottery and
Charitable Games Control Board ("Lottery Board").
In August 1996, Thompson was transferred from his job as
Security Systems Administrator to a Security Officer position
slated for elimination through a reduction in force
("RIF"). Thompson was eventually discharged, at
which point he sued the District, the Lottery Board, and
several individual Lottery Board employees alleging, as
relevant here, that he was terminated without due process in
violation of the Fifth Amendment and 42 U.S.C. § 1983.
After multiple trips to our Circuit Court,  all that remains
of this case is plaintiffs due process claim against the
District under Monell v. Dep't of Soc. Servs.,
436 U.S. 691 (1978). The District has moved for summary
judgment on plaintiffs municipal liability claim. Upon
consideration of the parties' briefing and the entire
record herein, the District's motion for summary judgment
is GRANTED for the reasons set forth below.
held various positions with the Lottery Board over the course
of his twelve years of employment from 1985 to 1997.
See Stmt, of Undisputed Material Facts
("SUMF") ¶ 1 [Dkt. #197]. In August 1996,
Lottery Board Executive Director Frederick King reassigned
Thompson from the position of Security Systems Administrator
to the position of Security Officer. Id. at
¶¶ 2-3; Thompson II, 530 F.3d at 916. The
following day, King told him that the latter position had
been identified for elimination as part of a RIF, effective
at the end of September. Am. Compl. ¶ 61 [Dkt. # 8];
Thompson II, 530 F.3d at 916. Thompson did not
receive notice or an opportunity to challenge his position
transfer. He did, however, receive 30 days' notice and an
opportunity to challenge his inclusion in (and separation
pursuant to) the RIF, a separate "employment
action" that Thompson did, in fact, contest.
Thompson III, 832 F.3d at 342; see SUMF
¶ 7-8; Aff. of James Thompson ¶ 11 [Dkt. # 122-8];
Letter from King to Plaintiff re: RIF (Aug. 27, 1996) [Dkt. #
122-14]; District Mem. of Law 3-4 [Dkt. # 137] (summarizing
Thompson's use of administrative grievance process);
Pl.'s Resp. to Def.'s First Requests for Admission 15
[Dkt. # 137-1]; Pl.'s Grievance to District Office of
Employee Appeals ("OEA") [Dkt. # 137-2]; Dep. of
Carol Jackson Jones 4 [Dkt. # 153-6]. After the RIF, Thompson was
placed on leave then reassigned to a temporary position,
where he worked until the temporary position expired in
January 1997. Am. Compl. ¶¶ 62-63, 70; Thompson
II, 530 F.3dat9l6.
1997, Thompson filed this § 1983 action claiming, in
relevant part, that his employment with the Lottery Board was
terminated in violation of the Due Process Clause of the
Fifth Amendment. The crux of Thompson's suit was that
King and the District retaliated against him based on his
efforts to uncover and report misconduct by Lottery Board
subcontractors. See Am. Compl. ¶¶ 12-60;
Thompson III, 832 F.3d at 341-42. In June 2004,
another judge of this Court dismissed Thompson's
complaint for failure to state a claim. Thompson v.
District of Columbia, No. 97-1015, 2004 WL 5348862
(D.D.C. June 23, 2004) (TPJ). Our Circuit Court reversed and
remanded, holding that Thompson's due process claim was
actionable. Thompson I, 428 F.3d at 284, 288.
remand, the case was reassigned to me and I eventually
dismissed Thompson's due process claim on the ground that
he lacked a protected property interest in his position.
Thompson v. District of Columbia, 478 F.Supp.2d 5,
9-10 (D.D.C. 2007). The Circuit Court disagreed, holding that
because Thompson was a career employee, he had a protected
property interest in his position under District law and
could not be terminated without due process. Thompson
II, 530 F.3d at 918-20. Specifically, the Thompson
II court held that Thompson's reassignment in August
1996 from Security Systems Administrator to Security Officer
constituted a "constructive removal," which
triggered his due process rights and entitled him to process
at the time of the transfer-not, as occurred, at the time of
the RIF. Id. at 919 n.4; id. at 919 (asking
whether "the deprivation of [Thompson's] property
interests occur[ed] when he [was] transferred or when the RIF
actually eliminate[d] the position" and holding that the
deprivation occurred "at the time of the . . .
commenced following remand in August 2008, after which the
parties submitted extensive summary judgment and other
briefing. See [Dkt. ## 122, 125-26, 133-34, 136-40,
142, 150-53, 162, 164]. I denied both parties'
dispositive motions and directed them to brief the issue of
what damages, if any, Thompson could be awarded by a jury if
his due process claim was tried. See [Dkt. ##
168-69]. I held argument on the issue in June 2014, and on
December 10, 2014, 1 dismissed the case on the ground that
Thompson could not recover damages because he offered no
evidence that he would not have been terminated had
he been afforded adequate due process. See Thompson v.
District of Columbia, No. 97-1015, 2015 WL 13673454
(D.D.C. Feb. 18, 2015).
appeal, our Circuit Court reversed the dismissal and held
that Thompson's procedural due process rights were
violated when he was reassigned to a position slated for
elimination without prior notice and a hearing to challenge
his transfer. Thompson III, 832 F.3d at 345
("[Thompson] thus had a right to notice of that transfer
and a hearing to challenge his transfer before it was
made."). The Circuit Court remanded the case in August
2016 for me to determine whether the District can be held
liable under § 1983 and Monell for
Thompson's due process violation; and if so, the amount
of damages to which he is entitled. Id. at 344. On
February 27, 2018, the District moved for summary judgment on
Thompson's Monell claim and filed its statement
of undisputed material facts. See [Dkt. # 195].
Thompson opposed the District's motion and submitted a
response to the District's proposed undisputed facts.
See [Dkt. ## 196-97]. The District filed its reply
on March 6, 2018. See [Dkt. # 198].
Summary judgment is warranted when the pleadings, discovery
and disclosure materials on file, and any affidavits show
that there is "no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law." Fed. R. Civ, P. 56(a). The mere existence of a
factual dispute is insufficient to preclude summary judgment.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986). A dispute is "genuine" if "the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party." Id. at 248. A
fact is "material" if it "may affect the
outcome of the litigation." Montgomery v.
Risen, 875 F.3d 709, 713 (D.C. Cir. 2017).
moving party, the District shoulders the initial burden to
identify evidence demonstrating the absence of a genuine
dispute of material fact. See Celotex v. Catrett,
477 U.S. 317, 323 (1986). The District may do so by
"citing to particular parts of materials in the
record," or by showing that plaintiff, as the non-moving
party, "cannot produce admissible evidence to
support" the "presence of a genuine dispute."
Fed.R.Civ.P. 56(c). In other words, the District "need
only identify the ways in which [plaintiff] has failed to
come forward with sufficient evidence to support a reasonable
jury to find in [his] favor on one or more essential elements
of the claim." Grimes v. District of Columbia,
794 F.3d 83, 93 (D.C. Cir. 2015). If the District meets its
initial burden, then Thompson must "designate specific
facts showing that there is a genuine issue for trial."
Celotex, 477 U.S., at 324 (internal quotation marks
omitted). It is not enough for plaintiff to identify "a
scintilla of evidence" or the "mere allegations or
denials" of his pleadings in support of his assertions.
Anderson, 477 U.S. at 248, 252. Without more, the
District may prevail based on plaintiffs "failure of
proof." Celotex, 477 U.S. at 323. In assessing
the District's motion, I must "view the facts and
draw reasonable inferences in the light most favorable
to" Thompson as "the party opposing the summary
judgment motion." Scott v. Harris, 550 U.S.
372, 378 (2007) (alterations and internal quotation marks
Municipal Liability Under 42 U.S.C. § 1983
liable under § 1983,  a municipality must be
"actually responsible" for the challenged
conduct, meaning the relevant acts were "officially
sanctioned or ordered" by the local government. City
of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988)
(emphasis added) (internal quotation marks omitted); see
also Lozman v. City of Riviera Beach, Fla., __U.S.__,
138 S.Ct. 1945, 1951 (2018) (plaintiffs harm must have
resulted from "the implementation of 'official
municipal policy'" (quoting Monell, 436
U.S. at 691)). Thus. "[p]laintiffs who seek to impose
liability on local governments under § 1983 must prove
that 'action pursuant to official municipal policy'
caused their injury." Connick v.
Thompson, 563 U.S. 51, 60 (2011) (quoting
Monell, 436 U.S. at 691); see also Monell,
436 U.S. at 694 (municipality is liable "when execution
of [its] policy or custom . . . inflicts the injury").
Conversely, and inexorably, plaintiffs may not pursue
municipal liability on a respondeat superior
theory-that is, municipalities are not vicariously liable for
the misconduct of their employees. Monell, 436 U.S.
at 691; see also Pembaur v. City of
Cincinnati, 475 U.S. 469, 479 (1986) ("[W]hile
Congress never questioned its power to impose civil liability
on municipalities for their own illegal acts,
Congress did doubt its constitutional power to impose such
liability in order to oblige municipalities to control the
conduct of others." (emphases in original)).
Circuit Court has explained that "[t]here are a number
of ways in which a 'policy' can be set by a
municipality to cause it ...