                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA
____________________________________
                                    )
SHERRY COPPET,                      )
                                    )
                  Plaintiff,        )
                                    )
      v.                            )                 Civil Action No. 14-0330 (ABJ)
                                    )
DISTRICT OF COLUMBIA,               )
                                    )
                  Defendant.        )
____________________________________)


                                  MEMORANDUM OPINION

       Plaintiff Sherry Coppet brings this action against defendant the District of Columbia (“the

District”), alleging that it violated 42 U.S.C. § 1983 and plaintiff’s Fifth Amendment right to

procedural due process when it demoted her. Compl. [Dkt. # 1] ¶¶ 28–30. Defendant moved to

dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), contending that

plaintiff has failed to state a claim upon which relief can be granted. Def.’s Mot. to Dismiss

[Dkt. # 4] at 1 (“Def.’s Mot.”). Applying Monell v. Department of Social Services of New York,

436 U.S. 658 (1978), the Court finds that plaintiff has failed to plead sufficient facts to establish

that the District can be held liable for the injury she alleges, and so the Court will grant

defendant’s motion to dismiss.

                                        BACKGROUND

       The following facts are taken from plaintiff’s complaint and are assumed to be true for

the purposes of this motion. Plaintiff was employed as Branch Chief of the District of Columbia

Superior Court, Family Court Operations Division, Paternity and Child Support Branch, from

December 1990 until she was terminated on October 25, 2012. Compl. ¶¶ 67. In April 2011,
an employee under plaintiff’s supervision filed a “false complaint,” claiming that plaintiff had

discriminated against her based on her disability, and had harassed and bullied her. Id. ¶ 8. As a

result of the employee’s complaint, in September 2011, plaintiff was reassigned to the position of

Fathering Court Coordinator within the same division. Id. ¶ 9.

        On August 27, 2012, the Director of Family Court Operations, Dianne King, issued

plaintiff a Notice of Intent to Recommend Suspension and Relief of Management

Responsibilities (“Notice of Intent”) based on the investigation of the employee’s discrimination

complaint. Id. ¶ 10. Plaintiff alleges “[u]pon information and belief” that “Ms. King consulted

with and was instructed to take disciplinary action against Plaintiff by Duane Delaney, Clerk of

the Court[,] and Anne Wicks, Executive Officer.” Id. ¶ 11.

        Plaintiff responded in writing to the Notice of Intent on September 18, 2012. Id. ¶ 12.

On October 4, 2012, Clerk of the Court Delaney issued plaintiff a notice of proposed termination

pursuant to Personnel Policy 1005. Id. ¶ 13. Plaintiff responded in writing to that notice on

October 19, 2012, and received Delaney’s final decision terminating her employment on October

24, 2012. Id. ¶¶ 1415. The termination was effective as of the close of business the next day.

Id. ¶ 15.

        Plaintiff appealed the termination decision to Executive Officer Wicks and requested a

hearing. Id. ¶ 16. Hearing officer Lois Hochhauser presided over the hearing, which took place

on January 23 and 24, 2013, and at which plaintiff was able to present “documentary and

testimonial evidence.”    Id. ¶ 17.    On June 24, 2013, Hochhauser issued a Report and

Recommendation, finding that plaintiff’s employer had not met its burden of proof to

demonstrate that plaintiff had engaged in misconduct, and recommending that plaintiff be

reinstated to her position as Branch Chief. Id. ¶ 19. Pursuant to Personnel Policy 1007, hearing


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officer Hochhauser’s opinion constituted a nonbinding recommendation to the final decision-

maker, Executive Officer Wicks. Id. ¶ 18.

       On July 16, 2013, Wicks issued her final decision. Id. ¶ 20. Wicks determined that

plaintiff should be reinstated, but to a non-supervisory position. Id. On September 9, 2013,

plaintiff returned to work as a Quality Review Specialist in the Civil Division, a demotion of two

pay grades from the Branch Chief position that decreased plaintiff’s salary by $19,000. Id. ¶ 22.

       Plaintiff contends that she was a career service employee with a property interest in her

job who could only be terminated for cause after notice and an opportunity to respond. Id.

¶¶ 24–25. She further claims that the “post-termination procedures violated [her] due process

right to an impartial and unbiased hearing before a neutral decision maker,” id. ¶ 26, because

Executive Officer Wicks was both involved in the initial decision to terminate plaintiff, and was

the final decision-maker in her case. Id.

                                        STANDARD OF REVIEW

       “To survive a [Rule 12(b)(6)] 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.’” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007). In Iqbal, the Supreme Court reiterated the two principles underlying its decision in

Twombly: “First, the tenet that a court must accept as true all of the allegations contained in a

complaint is inapplicable to legal conclusions,” and “[s]econd, only a complaint that states a

plausible claim for relief survives a motion to dismiss.” Id. at 678–79.

       A claim is facially plausible when the pleaded factual content “allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678.

“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a



                                                  3
sheer possibility that a defendant has acted unlawfully.” Id., quoting Twombly, 550 U.S. at 566.

A pleading must offer more than “labels and conclusions” or a “formulaic recitation of the

elements of a cause of action,” id., quoting Twombly, 550 U.S. at 555 (internal quotation marks

omitted), and “[t]hreadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Id.

       When considering a motion to dismiss under Rule 12(b)(6), the complaint is construed

liberally in the plaintiff’s favor, and the Court should grant the plaintiff “the benefit of all

inferences that can be derived from the facts alleged.” Kowal v. MCI Commc’ns Corp., 16 F.3d

1271, 1276 (D.C. Cir. 1994). Nevertheless, the Court need not accept inferences drawn by the

plaintiff if those inferences are unsupported by facts alleged in the complaint, nor must the Court

accept plaintiff’s legal conclusions. See id.; see also Browning v. Clinton, 292 F.3d 235, 242

(D.C. Cir. 2002). In ruling upon a motion to dismiss for failure to state a claim, a court may

ordinarily consider only “the facts alleged in the complaint, documents attached as exhibits or

incorporated by reference in the complaint, and matters about which the Court may take judicial

notice.” Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002).

                                           ANALYSIS

       The Court will grant the District’s motion to dismiss because plaintiff has not alleged

sufficient facts to establish municipal liability under Monell. Plaintiff asserts that the District

deprived her of procedural due process at her post-termination hearing in violation of 42 U.S.C.




                                                4
§ 1983 1 because the final decision-maker, Executive Officer Wicks, was biased by her alleged

involvement in the preliminary decision to terminate plaintiff. Compl. ¶¶ 29–30. Defendant

moved to dismiss the complaint on the grounds that plaintiff has not pled any facts that would

support a claim for municipal liability under Monell. Def.’s Mem. of P. & A. in Supp. of Mot. to

Dismiss [Dkt. # 4] at 5. Defendant also contends that plaintiff has failed to plead sufficient facts

to state a claim for the deprivation of her right to due process. Id. at 6.

       In Monell, the Supreme Court held that local governments are not immune from liability

under section 1983, but explained that “a municipality cannot be held liable solely because it

employs a tortfeasor – or, in other words, a municipality cannot be held liable under § 1983 on a

respondeat superior theory.” 436 U.S. at 691. Rather, “it is when execution of a government’s

policy or custom . . . inflicts the injury” that a municipality can be held liable under section 1983.

Id. at 694. The Supreme Court later noted that “while 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.” Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986). Thus, “[t]he

‘official policy’ requirement was intended to distinguish acts of the municipality from acts of




1      Section 1983 provides:

               Every person who, under color of any statute, ordinance, regulation,
               custom, or usage, of any State or Territory or the District of Columbia,
               subjects, or causes to be subjected, any citizen of the United States or
               other person within the jurisdiction thereof to the deprivation of any rights,
               privileges, or immunities secured by the Constitution and laws, shall be
               liable to the party injured in an action at law, suit in equity, or other proper
               proceeding for redress . . . .

42 U.S.C. § 1983.
                                                   5
employees of the municipality, and thereby make clear that municipal liability is limited to action

for which the municipality is actually responsible.” Id.

       The D.C. Circuit has further explained that:

               There are a number of ways in which a “policy” can be set by a
               municipality to cause it to be liable under § 1983: the explicit setting of a
               policy by the government that violates the Constitution; the action of a
               policy maker within the government; the adoption through a knowing
               failure to act by a policy maker of actions by his subordinates that are so
               consistent that they have become “custom”; or the failure of the
               government to respond to a need . . . in such a manner as to show
               “deliberate indifference” to the risk that not addressing the need will result
               in constitutional violations.

Baker v. District of Columbia, 326 F.3d 1302, 1306 (D.C. Cir. 2003) (citations omitted).

       Plaintiff argues that District of Columbia Personnel Policy 1007 deprived her of her Fifth

Amendment right to procedural due process because, pursuant to that policy, the decision of the

neutral hearing officer, Hochhauser, was not binding on the “actual decision maker,” Wicks.

Pl.’s Mem. of P. & A. in Opp. to Def.’s Mot. [Dkt. # 7] at 4 (“Pl.’s Opp.”). Plaintiff does not

contend that Wicks was a “policy maker within the government,” nor does she allege that a

policy maker adopted a “custom” of violations by subordinates, or that the District has a practice

of “deliberate indifference” that deprived her of her rights. See Baker, 326 F.3d at 1306. So

plaintiff seems to claim only that Personnel Policy 1007 constitutes an “explicit . . . policy [of]

the government that violates the Constitution.” See id. But plaintiff has not pled sufficient facts

to show that the policy actually “inflict[ed] the injury” she alleges, Monell, 436 U.S. at 694, and

therefore the complaint must be dismissed.

       As a preliminary matter, although defendant appears to concede that plaintiff possessed a

protected property interest in her employment, see Def.’s Reply to Pl.’s Opp. [Dkt. # 8] at 3, it is

not clear that plaintiff has stated a claim for the denial of her right to due process. The due



                                                 6
process claim hinges solely on the allegation that Wicks was biased by her participation in the

initial decision to terminate plaintiff. See Compl. ¶ 30. But plaintiff has alleged no facts beyond

her own “information and belief” to indicate that Wicks was actually involved with that decision.

See id. ¶ 11. And plaintiff does not otherwise challenge the post-termination proceedings, nor

does she contend that she did not receive “oral or written notice of the charges against [her], an

explanation of the employer’s evidence, and an opportunity to present [her] side of the story,” as

required by the Constitution. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985).

So, at the outset, the due process claim hangs by a thread.

       But the Court need not determine whether plaintiff has stated a due process claim because

even if Wicks was improperly involved in both the preliminary and final decisions, plaintiff has

not alleged that it was a “policy or custom” of the District to allow a final decision-maker to be

part of an initial disciplinary decision. See Monell, 436 U.S. at 694. In fact, in her opposition,

plaintiff expressly states that the District’s policy is fair:   “On paper,” she asserts, “[the

District’s] policies provided for due process before a neutral decision maker.” Pl.’s Opp. at 2.

The opposition makes it clear that plaintiff’s true grievance is not with a policy or custom of the

District, but rather with the specific decision that Wicks made. See id. at 3 (“The crux of the

Complaint is that, ‘The post-termination procedures violated Plaintiff’s due process right . . . ’

because Defendant overruled Ms. Hochhauser’s decision that Plaintiff should be reinstated to her

former job.”), quoting Compl. ¶ 26; see also id. at 2 (“In practice, Defendant disregarded the

neutral decision maker’s ruling when it disagreed with her findings.”).

       Given that plaintiff does not contend that Wicks is a “policy maker” within the meaning

of Baker, 326 F.3d at 1306, the Court finds that plaintiff has failed to allege any facts that show

that the District “is actually responsible” for Wicks’s determination. Pembaur, 475 U.S. at 479.



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