Thompson v. District of Columbia

          MEMORANDUM OPINION

          Richard J. Leon, Judge

         From 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, ^[1] 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.

         BACKGROUND

         Plaintiff 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].^[2] 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.

         In May 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.

         On 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 . . . pretextual transfer").

         Discovery 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).

         On 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].

         LEGAL STANDARD

         I. Summary Judgment

          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).

         As the 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 omitted).

         ANALYSIS^[3]

         I. Municipal Liability Under 42 U.S.C. § 1983

          To be liable under § 1983, ^[4] 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)).

         Our 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 ...