                        UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF COLUMBIA

 SILLETTE SHELLER-PAIRE as                         )
 Personal Representative for the Estate of         )
 Dante A. Paire,                                   )
                                                   )
                      Plaintiff,                   )
                                                   )
               v.                                  )     Civil Case No. 11-1043 (RJL)
                                                   )
 HONORABLE VINCENT GRAY,                           )
 MAYOR FOR THE DISTRICT OF                         )
 COLUMBIA, et al.,                                 )
                                                   )
                                                   )
                      Defendants.                  )


                                             7"-----
                              MEMORANDUM OPINION
                                (August"Z7, 2012) [#4]

       Sillette Sheller-Paire brings this action as the personal representative of the estate

of Dante A. Paire 1 against the District of Columbia's mayor and two of the District's

departments, the Office of Attorney General ("OAG") and the District of Columbia Fire

and Emergency Medical Services Department ("Fire Department"). Plaintiff alleges

discrimination under federal and state law as well as claims for intentional infliction of

emotional distress and negligent supervision. Before the Court is the defendants' Motion

to Dismiss the Complaint ("Defs.' Mot.") [Dkt. # 4]. Upon consideration of the parties'

pleadings and the relevant law, the Court GRANTS defendants' motion.




       For convenience, this memorandum opinion refers to Dante Paire as "plaintiff."

                                              1
                                    BACKGROUND
       Plaintiff alleges the following facts. Plaintiff began employment as a firefighter

and emergency medical technician ("EMT") with the Fire Department on September 6,

2005. Compl. ~ 3 [Dkt. # 1]. Plaintiff alleges generally that "[t]hroughout Plaintiffs

employment," he was "harassed and retaliated against due to his race and perceived

disability." Compl. ~ 8. Specifically, on or about January 4, 2008, plaintiffs immediate

supervisor, Lieutenant Robert Edwards, placed him on administrative leave without

explanation. Compl. ~ 9. The battalion fire chief, Kevin Beagley, confirmed his

placement on administrative leave and instructed him to contact the Fire Department's

compliance office for additional information on his duty status. !d. Plaintiff also alleges

that, unlike the other employees on his shift, he was not paid for time worked up to that

date. !d. Plaintiff sought and received psychiatric treatment from Dr. Jackson of the

Police and Fire Clinic as a consequence ofthese events.   !d.~   10. Plaintiff also sought

treatment from his own psychologist, Dr. Laverne Stanforth, from January 5, 2008 until

the plaintiffs death on February 4, 2009. !d.

       Plaintiff repeatedly contacted the Fire Department's compliance office and

unnamed members of the Fire Department's "upper management" from January of2008

through July 22, 2008, but was unable to learn the reason for his placement on

administrative leave. Compl. ~ 11-12. On June 11, 2008, plaintiff claims that Drs.

Jackson and Stanforth cleared him to return to limited duty, but he was not permitted to

return to work. Compl. ~ 13. On July 22, 2008, the compliance office informed plaintiff

"that he had been placed on his own sick leave as opposed to administrative leave."


                                             2
Compl.   ~   14. Later that day, plaintiff spoke to "Lt. J. Washington" of the Police and Fire

Clinic and was given a limited duty position at "Fire Prevention." Compl. ~ 14. The next

day, although plaintiff reported for work, battalion fire chief Beagley informed him that

he was being placed on sick leave again. Compl. ~ 15. Plaintiff alleges that he submitted

written requests for the reason for his status change to Assistant Fire Chief Brian Lee on

July 29, 2008 but received no answer. Compl. ~ 16.

       On or around December 3, 2008, plaintiff filed a complaint with the Equal

Employment Opportunity Commission against the District of Columbia Department of

Fire and EMS, alleging discrimination and retaliation. Compl. ~ 6. The Commission

dismissed that charge on March 8, 2011. Defs.' Reply, Ex. 1 [Dkt. # 9-1]. On June 6,

2011, plaintiff initiated this suit. See generally Compl. Plaintiff alleges violations of the

Fourteenth Amendment's Equal Protection Clause and the District of Columbia's Human

Rights Act ("DCHRA"), D.C. Code§ 2-1401.01 et seq., through 42 U.S.C. § 1983

(Count I); intentional infliction of emotional distress (Count II); negligent supervision

(Count III); and discrimination based on race and disability in violation of Title VII of the

Civil Rights Act of 1964,42 U.S.C. § 2000e et seq., and the Americans with Disabilities

Act ("ADA"), 42 U.S.C. § 12111 et seq., (Count IV). Defendants moved to dismiss the

complaint on September 29,2011.

                                  STANDARD OF REVIEW

       A court may dismiss a complaint or any portion of it for failure to state a claim

upon which relief may be granted. Fed. R. Civ. P. 12(b)(6). In considering a motion to

dismiss, however, the Court may only consider "the facts alleged in the complaint, any


                                                3
documents either attached to or incorporated in the complaint and matters of which [the

court] may take judicial notice." E.E.O.C. v. St. Francis Xavier Parochial Sch., 117 F.3d

621, 624 (D.C. Cir. 1997). In evaluating a Rule 12(b)(6) motion, the Court construes the

complaint "in favor of the plaintiff, who must be granted the benefit of all inferences that

can be derived from the facts alleged." Schuler v. United States, 617 F.2d 605, 608 (D.C.

Cir. 1979) (internal quotation marks omitted). However, factual allegations, even though

assumed to be true, must still "be enough to raise a right to relief above the speculative

level." Bell At/. Corp. v. Twombly, 550 U.S. 544, 555 (2007). To survive a motion to

dismiss, a complainant must "plead [ ] factual content that 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). Moreover, the Court "need not accept inferences drawn

by plaintiffl] if such inferences are unsupported by the facts set out in the complaint. Nor

must the court accept legal conclusions cast in the form of factual allegations." Kowal v.

MCI Commc 'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).

                                        ANALYSIS

I.     Plaintiff's Claims Against the Named Defendants

       Defendants correctly point out that the OAG and the Fire Department are "non sui

juris" and must be dismissed from this case. Defs.' Mot. 13-14. Subordinate agencies

within the District of Columbia's government, such as the OAG and the Fire Department,

are not subject to suit without a statutory provision to that effect. See Blackmar v.

Guerre, 342 U.S. 512, 514-15 (1952); see also, e.g., Hamilton v. District ofColumbia,

720 F. Supp. 2d 102, 107-08 (D.D.C. 2010). Therefore, the claims against these agencies


                                              4
will be dismissed.

       Further, defendants also rightly assert that Mayor Gray is not a proper party in

interest because plaintiff has failed to state a claim against the Mayor in his personal

capacity or in his official capacity. Plaintiffs allegations do not in any way suggest that

the mayor was personally involved in the alleged misconduct. See Cameron v.

Thornburgh, 983 F.2d 253, 257-58 (D.C. Cir. 1993). And suing a municipal official in

his official capacity is the equivalent of suing the municipality itself because the official

is not personally liable for damages. Kentucky v. Graham, 473 U.S. 159, 166 (1985);

Atchinson v. District of Columbia, 73 F.3d 418,424 (D.C. Cir. 1996). Thus, I will

construe plaintiffs suit against the mayor as a suit against the District of Columbia. See

Henneghan v. Dist. of Columbia Public Schs., 597 F. Supp. 2d 34, 37 (D.D.C. 2009).

II.    Plaintiff's Failure to Provide Adequate Notice Under D.C. Code§ 12-309

       Plaintiffs DCHRA and common law tort claims must be dismissed because

plaintiff failed to satisfy the D.C. Code's notice requirements for suits against the

District. D.C. Code§ 12-309; Compl. ~~ 17-35 (Counts I (DCHRA), II (intentional

infliction of emotional distress), III (negligent supervision)). Under D.C. Code§ 12-309,

a plaintiff seeking to sue the District must provide sufficient notice to the District's

Mayor "within six months after the injury or damage was sustained." Compliance is

mandatory because this statute is part of a sovereign-immunity waiver. Johnson v.

District of Columbia, 572 F. Supp. 2d 94, 111 (D.D.C. 2008). This notice requirement

applies to nonfederal claims such as plaintiffs claim under the DCHRA, Owens v.

District of Columbia, 993 A.2d 1085, 1089 (D.C. 2010), and plaintiffs common law tort


                                               5
claims of intentional infliction of emotional distress and negligent supervision, see Blue

v. District ofColumbia, No. 10-1504,2012 WL 746400, at *16-18 (D.D.C. March 8,

2012); Beeton v. District of Columbia, 779 A.2d 918, 925-26 (D.C. 2001); Breen v.

District of Columbia, 400 A.2d 1058, 1062 (D.C. 1979).

       The District contends that it has not received any notice, even though plaintiff

alleges that misconduct began on January 4, 2008 and ended on July 23, 2008. Defs.'

Mot. 16; Defs.' Mot. Ex. A, Craven Aff. 1-2; see also Compl. ~~ 9, 15. Indeed, neither

does the complaint indicate that notice was given, see generally Compl., nor does

plaintiffs opposition brief cite any facts to contest the District's argument, see generally

Pl.'s Opp'n [Dkt. # 6]. Instead, plaintiffwrongly contends that the notice requirements

are inapplicable here because "[a]ll actions arising out of the complaint in this matter are

based upon the Defendants [sic] violations of the Plaintiffs constitutional rights under

federal law." Pl.'s Opp'n 15. 2 Plaintiff is plainly mistaken-the DCHRA, intentional

infliction of emotional distress, and negligent supervision claims are nonfederal claims

and common law claims. Because plaintiff failed to provide the District with adequate

notice for these claims, they too will be dismissed.




2
       Through 42 U.S.C. § 1983, plaintiff alleges violations of both the Fourteenth
Amendment's Equal Protection Clause and the DCHRA in Count I. Compl. ~ 18.
Plaintiffs constitutional claims are addressed separately.



                                              6
III.   Plaintiff's Claims Under 42 U.S.C. § 19833

       Plaintiffs claim for a remedy against constitutional violations under 42 U.S.C. §

1983 must also be dismissed. 4 To successfully plead a§ 1983 claim against the District,

plaintiff must plead facts alleging a predicate violation of the Constitution or federal law

that resulted from the District's policy or custom. Warren v. District of Columbia, 353

F.3d 36, 38 (D.C. Cir. 2004). Plaintiffs complaint does not meet this standard.


3
       Although the Court must "accept as true all of the factual allegations contained in
the complaint," Atherton v. District of Columbia, 567 F.3d 672, 681 (D.C. Cir. 2009), the
Court need not accept additional allegations inserted in a document, such as an opposition
memorandum, that is not a complaint or amendment to the complaint. See Harrell v.
United States, 13 F.3d 232,236 (7th Cir. 1993) ("If a complaint fails to state a claim even
under the liberal requirements of the federal rules, the plaintiff cannot cure the deficiency
by inserting the missing allegations in a document that is not either a complaint or an
amendment to a complaint."). In his opposition memorandum, plaintiff has attempted to
allege new facts related to specific events occurring between October 6, 2007 and
December 13, 2007, and between October 3, 2008 and February 4, 2009. See Pl.'s Opp'n
3-10, 12-14 (alleging facts not included in the complaint). Therefore, in reviewing the
defendants' motion to dismiss, this Court will consider only those allegations included
within the complaint.
       Moreover, were plaintiff to amend the complaint to allege the misconduct
referenced in the opposition brief, those claims would likely be precluded for a failure to
exhaust administrative remedies under Title VII. "Title VII requires that a person
complaining of a violation file an administrative charge with the EEOC and allow the
agency time to act on the charge." Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir.
1995); see also 42 U.S.C. § 2000e-5(f)(l) (2006). Plaintiffs EEOC charge only alleges
events from January 4, 2008 through July 23, 2008. Defs.' Reply, Ex. 2, Paire's EEOC
Charge ofDiscrimination (alleging facts related to events between January 4, 2008 to
July 23, 2008) [Dkt. # 9-2].
4
       Plaintiff alleges constitutional violations of the Fourteenth Amendment's Equal
Protection clause. Compl. ~ 18. Although the Fourteenth Amendment does not apply to
the District of Columbia, see Bollingv. Sharpe, 347 U.S. 497,498 (1954), the equal
protection clause has been found to apply to the District through the Fifth Amendment's
Due Process clause. Brandon v. Dist. of Columbia Bd. ofParole, 734 F.2d 56,60 (D.C.
Cir. 1984); Dixon v. District of Columbia, 753 F. Supp. 2d 6, 9 n.1 (D.D.C. 2010).



                                              7
       Assuming that plaintiff has properly alleged discrimination, plaintiffs claim must

be dismissed because plaintiff alleges no facts to support a conclusion that the

discriminatory actions were the "execution of a government's policy or custom, whether

made by its lawmakers or by those whose edicts and acts may fairly be said to represent

official policy." Monell v. Dept. of Social Servs., 436 U.S. 658, 694 (1978). 5

Municipalities like the District of Columbia cannot be held liable under a simple

respondeat superior theory. Triplett v. District of Columbia, 108 F.3d 1450, 1453 (D.C.

Cir. 1997). Instead, the plaintiff must allege that a municipal policy or custom caused the

5
       Even if plaintiff had successfully demonstrated that a municipal policy or custom
was in place here, plaintiff has not alleged facts sufficient to plead a predicate
constitutional or federal law violation. Plaintiffs discrimination claims are little more
than unsupported conclusions, not entitled to the assumption of truth. Iqbal, 556 U.S. at
679; see, e.g., Compl. ~~ 20-24. Although plaintiff parrots the elements of discrimination
claims under § 1983, Compl. ~~ 19-24, plaintiff alleges few facts to show discrimination.
These consist only of his allegations that the Fire Department neither adequately
explained why he was placed on leave nor responded to his complaints, Compl. ~~ 9, 12,
15, 16, 21, that the Department paid other firefighters but not plaintiff for work prior to
plaintiffs being placed on administrative leave, Compl. ~ 9, and that "[plaintiff] was
unaware of any white officers ever being required to use their own sick leave under the
same or similar circumstances." Compl. ~ 14. Although plaintiff describes himself as
African American and mentally disabled, Compl. ~ 1, plaintiff never expressly claims
that any of the defendants' actions was motivated by a discriminatory intent or purpose.
Nor does plaintiff allege any facts to support an inference that he was placed on leave or
otherwise treated differently because of his race or disability. See Atherton v. District of
Columbia Off of the Mayor, 567 F.3d 672, 688 (D.C. Cir. 2009). To the contrary,
plaintiffs own complaint provides an explanation for plaintiffs sick leave assignment-
plaintiff began receiving psychiatric treatment in 2008. Compl. ~ 10.
       Only once does plaintiff even remotely allude to a discriminatory intent when he
claims that he "was unaware of any white officers ever being required to use their own
sick leave under the same or similar circumstances." Compl. ~ 14. Plaintiff does not
even actually claim that white co-workers were treated differently, just that he is unaware
of any white co-workers being treated this way. This allegation does not support a
reasonable inference that the defendant acted with a discriminatory intent. In sum,
plaintiffs allegations stop well short of the line between possibility and plausibility of
entitlement to relief. Iqbal, 556 U.S at 678.

                                             8
constitutional violation, or, in other words, that there was an "affirmative link, such that a

municipal policy was the moving force behind the constitutional violation." Baker v.

District of Columbia, 326 F.3d 1302, 1306 (D.C. Cir. 2003) (internal quotations and

citations omitted). A plaintiff may demonstrate such a municipal policy by showing any

of the following: (1) the explicit setting of the policy by the government, (2) the actions

of an official policymaker within the government, (3) a policymaker's adoption, through

a knowing failure to act, of subordinates' actions that are so consistent as to have become

a "custom," or (4) the government's failure 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. !d. Unfortunately for the plaintiff, he has not alleged any such

facts.

         First, plaintiff clearly does not identify any official District policy on investigating

discrimination claims or condoning discriminatory conduct. See Compl. ~~ 20-21.

Second, the plaintiff has not alleged that a final policymaker acted or adopted the actions

of subordinates. Plaintiffs complaint names several Fire Department supervisors,

including the assistant fire chief, and generally references the "Department's upper

management," see Compl.       ~~   9, 15, 21, but none of these officials has authority for

establishing final government policy. See Triplett v. District of Columbia, 108 F.3d

1450, 1451 (D.C. Cir. 1997) (holding that Director ofDistrict's Department of

Corrections was not final decision maker); Coleman v. District of Columbia, No. 09-cv-

50-RCL, 2011 WL 6076329, at *3 (D.D.C. Dec. 7, 2011) (holding that Fire Chief of




                                                  9
FEMS was not final policy maker). 6 Furthermore, plaintiff does not plausibly allege any

actions '"so consistent that they have become 'custom."' Baker, 326 F.3d at 1306.

Examining the facts in the light most favorable to the plaintiff, plaintiff cites only four

incidents where fire department management allegedly failed to respond to his requests to

provide more information on and to investigate his being placed on leave. Compl.            ~~   9,

12, 15, 16. These incidents do not even provide equivocal evidence of constitutional

violations, much less a '"persistent, pervasive practice of the city officials." Carter v.

District of Columbia, 795 F.2d 116, 125 (D.C. Cir. 1986). Finally, plaintiff has not

alleged sufficient facts for a claim that the District of Columbia failed 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, 326 F.3d at 1306 (internal

citations and quotations omitted). Plaintiff states that defendants '"were sufficiently

apprised and on notice of the abuse endured by Plaintiff." Compl. ~ 23. But plaintiff

does not point to any indication that a final policymaker had actual knowledge or any

basis for concluding that plaintiff was being discriminated against based on race or

disability. Instead, plaintiff only alleges that he requested information about his leave

status. See, e.g., id.   ~   16. In short, plaintiff alleges no facts that would show that the

District was '"faced with actual or constructive knowledge that its agents will probably

violate constitutional rights." Warren, 353 F.3d at 39.

       Further, plaintiffs opposition memorandum does little to remedy these defects.


6
      Again, although plaintiff has named Mayor Gray, plaintiff has not alleged any
involvement on the mayor's part in the alleged misconduct or adoption of any policy.

                                                   10
Plaintiff merely recites the same allegations as in the complaint, Pl.'s Opp'n 11-12, and

summarily concludes that "[a]ll of the heretofore exhibits and facts clearly establish

sufficient substantiation and inference one could believe the Plaintiff was discriminated

against based upon his race and disability," id. at 15. Therefore, plaintiffs claims under

§ 1983 must fail.

IV. Title VII and ADA Claims

       Plaintiffs claims under Title VII and the ADA must also be dismissed. First,

plaintiff has failed to state a discrimination claim under Title VII and the ADA because

plaintiff has not alleged facts that could give rise to an inference of discrimination on the

basis of race or disability. See Twombly, 550 U.S. at 545. To establish a prima facie case

for discrimination, a plaintiff must show that (1) he is a member of a protected class, (2)

he suffered an adverse employment action, and (3) the unfavorable action gives rise to an

inference of discrimination. See George v. Leavitt, 407 F.3d 405,412 (D.C. Cir. 2005);

Swanks v. Washington Metro. Area Transit Auth., 179 F.3d 929, 933 (D.C. Cir. 1999).

Plaintiffs complaint fails to allege facts to support this third prong. As previously

discussed, the plaintiff alleges no fact from which a reasonable person could infer that his

status as an African-American or his alleged disability caused him to suffer an adverse

employment action. See supra note 5; Compl.            ~~   7-16, 36-43. Although plaintiff makes

some bare legal conclusions, see, e.g, id.   ~   8, the plaintiff never alleges that the adverse

employment actions, his placement on leave, were taken because of his race or disability.

See Compl.   ~~   7-16, 36-43. Therefore, plaintiffs discrimination claims must be

dismissed.


                                                  11
        Second, plaintiffs ADA claim is deficient for an additional reason: plaintiff has

failed to allege facts to support his claim that he is disabled. A plaintiff "must adequately

allege facts sufficient to support the claim that [the plaintiff] has a 'disability' within the

meaning of the ADA, or else be subject to dismissal." Mitchell v. Yates, 402 F. Supp. 2d

222, 227-29 (D.D.C. 2005) (citing Sutton v. United Air Lines, Inc., 527 U.S. 471, 488-89

(1999), superseded by statute on other grounds, ADA Amendments Act of2008, Pub. L.

No. 110-325, § 3(4)(e)(i), 122 stat. 3553). Under the ADA, a person is disabled if: "(1)

he suffers from an impairment; (2) the impairment limits an activity that constitutes a

major life activity under the [ADA]; and (3) the limitation is substantial." Haynes v.

Williams, 392 F.3d 478, 482 (D.C. Cir. 2004) (interpreting 42 U.S.C. § 1202(2)(A)

(2006)). EEOC regulations specify that an "impairment is a disability ... if it

substantially limits the ability of an individual to perform a major life activity as

compared to most people in the general population." 29 C.F.R. § 1630.20)(1)(ii) (2012);

see also Sutton, 527 U.S. at 492 ("If jobs utilizing an individual's skills (but perhaps not

his or her unique talents) are available, one is not precluded from a substantial class of

jobs"). 7


7
       A plaintiff may also claim a disability under the ADA by alleging that the plaintiff
"has been regarded as having such an impairment" by the defendants. 42 U.S.C. §
12102(2)(C) (2006). In other words, a plaintiff may allege that the defendant mistakenly
regarded him as disabled. Dave v. Lanier, 681 F. Supp. 2d 68, 76 (D.D.C. 2010). In one
instance, the complaint states that the plaintiff "has been harassed and retaliated against
due to his race and perceived disability." Compl. ~ 8. Although plaintiff does state that
he was returned to sick leave after being granted a limited duty position, Compl. ~ 15,
neither the complaint nor the opposition brief ever make clear whether plaintiff is
alleging that he was mistakenly regarded as being disabled. Rather, plaintiff seems to
maintain that he had a "mental disability." Compl. ~ 1; Pl.'s Opp'n 1. Therefore,


                                               12
       Although plaintiff claims a disability, he never actually identifies this disability.

See generally Compl. Indeed, plaintiff only asserts in his complaint that he had a "mental

disability" and that he sought "psychiatric treatment from Dr. Jackson of the Police and

Fire Clinic as a benefit of his employment for work related stress."      Compl. ~~ 1, 10.

But plaintiff also alleges that he "was cleared by both Drs. Jackson and Stanforth to go

back to work in limited duty status" and obtained a limited duty assignment from a Police

and Fire Clinic lieutenant. Compl. ~~ 13-14. As such, plaintiffs complaint concedes that

he was not restricted from a substantial class of jobs but was capable of performing as a

firefighter with limited duties. Accordingly, plaintiff has failed to allege facts sufficient

to support a claim that he is substantially limited in a major life activity. 8




plaintiff has simply not alleged that he was mistakenly regarded as being disabled.
8
       To the extent, plaintiff alleges a hostile work environment claim under Title VII
and the ADA, that claim must also be dismissed. See Compl. ~ 1. To make out such a
claim, a plaintiff must demonstrate that the "workplace is permeated with discriminatory
intimidation, ridicule, and insult." Harriv v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)
(internal citations and quotations omitted). But "mere reference to alleged disparate acts
of discrimination cannot be transformed, without more, into a hostile work environment
claim." Childs-Pierce v. Uti/. Workers Union ofAm., 383 F. Supp. 2d 60, 79 (D.D.C.
2005), affd 187 Fed. App'x 1 (D.C. Cir. 2006). Here, plaintiffs allegations that he was
placed on leave without satisfactory explanation on several instances simply do not
support a hostile work environment claim.

                                               13
                                  CONCLUSION

      For all of the foregoing reasons, the Court GRANTS defendants' motion to

dismiss. An Order consistent with this decision accompanies this Memorandum Opinion.




                                         14
