UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

JAMES A. THOMPSON, JR.
Plaintiff,
Civil Case No. 97-1015 (RJL)

Vl

DISTRICT OF COLUMBIA, et al.,

FILED
Q¢Z/ SEP302018

MEMORANDUM OPINION C|erk, U.S. District & Bankruptcy
(September& 2018) [Dkt. # 195] Courts forthe DistrictofCo|umbia

\./\./\/\./VV\./\_/\_/

Defendants.

From 1985 through 1997, J ames 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
alle`ging, 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

 

l See Thompson_ v. District of Columbia (“Thompson 1”), 428 F.3d 283 (D.C. Cir.
2005); Thompson v. District ofColumbia (“Thompson I]”), 530 F.3d 914 (D.C. Cir. 2008);
Thompson v. District ofColumbia (“Thompson III”), 832 F.3d 399 (D.C.`Cir. 2016).

l

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 ofhis twelve
years of employment from 1985 to l997. See Stmt. of Undisputed l\/laterial Facts
(“SUl\/IF”) 1l l [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 M 2-3; Thompson II, 530 F.3d at 9l6. The following
day, King told him that the latter position had been identified for elimination as part ofa
RIF, effective at the end of September. Am. Compl. ll 6l [Dkt. # 8]; Thompson ]I, 530
F.3d at 9l6. 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 111, 832 F.3d at 342; see SUl\/[F il 7-8; Aff. of
James Thompson il ll [Dkt. # l22-8]; Letter from King to Plaintiffre: RIF (Aug. 27, 1996)
[Dkt. # l22-l4]; District l\/lem. oli`Law 3---4 [Dl<t. # l37] (summarizing Thompson’s use of
administrative grievance process); Pl.’s Resp. to Def.’s First Requests for Admission l5
[Dkt. # l37-l]; Pl.’s Grievance to District Office of Employee Appeals (“OEA”) [:Dl<t.

# 137-2]; Dep. of Carol Jacl<son Jones 4 [Dkt. # 153-6].2 After the RIF, Thompson was

 

2 Plaintiff challenged his separation before the District’s Office of Employee
Appeals but abandoned the challenge prior to a decision on the merits. SUMF il 8; District
Mem. of Law 4-5; District OEA lnitial Decision l [Dl<t. # 195-6].

2

placed on leave then reassigned to a temporary position, where he worked until the
temporary position expired in January l997. Am. Compl. 1|1162#63, 70; Thompsorz [l, 530
F.3d at 9 1 6.

ln l\/[ay 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 'l`hompson’s suit was that King and the District
retaliated against him based on his efforts to uncover and report misconduct by Lottery
Board subcontractorsl See Am. Compl. 1111 12-60; Thompson [I[, 832 F.3d at 341442. In
June 2004, anotherjudge of this Court dismissed Thompson’s complaint for failure to state
a claim. Thompson v. District OfColumbz`a, 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 1, 428 F.3d at 284, 288.

On remand, the case was reassigned to me and 1 eventually dismissed Thompson’s
due process claim on the ground that he lacked a protected property interest in his position.
Thompson v. District of Columbl'a, 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. T/aompson [[, 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. [d. at 919 n.4; id. at 919 (asking whether “the deprivation of [Thompson’s]

3

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 transf`er”).

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]. l denied both parties’ dispositive motions and
directed them to brief the issue of what damages, if any, Thompson could be awarded by a
jury ifhis due process claim was tried. See [Dl<t. ## 168-69]. l held argument on the issue
in June 2014, and on December 10, 2014, l dismissed the case on the ground that Thompson
could not recover damages because he offered no evidence that he would nor have been
terminated had he been afforded adequate due process. See Thompson v. District of
Columbz`a, 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. T/zompson [[I, 832
F.3d at 345 (“[Thomp_son] 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. [a’. at 344. On February 27, 2018, the District moved for summaryjudgment
on Thompson’s Morzell claim and filed its statement of undisputed material facts. See [Dl<t.

# 195]. Thompson opposed the District’s motion and submitted a response to the District’s

4

proposed undisputed facts. See [Dkt. ## 196~97]. The District filed its reply on l\/larch 6,
2018. See [Dl<t. # 198].
LEGAL STANDARD
l. 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. Lz'berly Lobby, [nc., 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.” Momgomery v. Rl`sen, 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 ofa genuine dispute.” Fed. R. Civ.
P. 56(c). ln other words, the District “need only identify the ways in which [plaintiffj has
failed to come forward with sufficient evidence to support a reasonablejury to find in [his]
favor on one or more essential elements ofthe claim.” Grz'mes v. District OfColu/nbz`a, 794
F.3d 83, 93 (D.C. Cir. 2015). lf` 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.

5

at 324 (internal quotation marks omitted). lt is not enough for plaintiff to identify “a
scintilla of evidence” or the “mere allegations or denials” ofhis pleadings in support of his
assertions A)/za’erson, 477 U.S. at 248, 252. Without more, the District may prevail based
on plaintiffs “failure of proof.” Celotex, 477 U.S. at 323. ln assessing the District’s
motion, l must “view the facts and draw reasonable inferences in the light most favorable
to” Thompson as “the party opposing the summary judgment motion.” Scol't v. Ha/”rl's, 550
U.S. 372, 378 (2007) (alterations and internal quotation marks omitted).
ANALYSIS3
I. Municipal Liability Under 42 U.S.C. § 1983

To be liable under § 1983,4 a municipality must be “acz‘z¢ally responsible” for the

challenged conduct, meaning the relevant acts were “officially sanctioned or ordered” by

the local government Cz`ly Osz‘. Louz`s v. Prapromz'/c, 485 U.S. 112, 123 (1988) (emphasis

 

3 The parties agree that the Lottery Board, as a subordinate agency of the District,
is not a proper party to this lawsuit because it is non suijurz's and therefore should be
dismissed as a defendant Def.’s l\/lot. for Summ. J. or, Alternatively, l\/lot. for J. on the
Pleadings (“District Br.”) 16 [Dkt. # 195]; Pl.’s Opp’n to Def.’s l\/lot. for Summ. J. (“Pl.’s
Br.”) l n.l [Dkt. # 196]; see, e.g., Amola' v. MOOF€, 980 F.Supp. 28, 33 (D.D.C. 1997)
(“Governmental agencies ofthe District of Columbia are not suable entities.”).

4 Section 1983 ofthe Civil Rights Act 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 ofthe 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.

added) (internal quotation marks omitted); see also Lozman v. City o/`Rivl`era Beaelz, Fla.,
_ U.S. ~, 138 S.Ct. 1945, 1951 (2018) (plaintiff`s harm must have resulted from “the
implementation of ‘of`ficial municipal policy”’ (quoting Morzell, 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.” Corzrzl`ck v.
Thor)ipsorz, 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 Peml)aur v. City of
Cl`nel'nrzatl`, 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 to be liable under § 1983”:

[l] the explicit setting of a policy by the government that violates the

Constitution; [2] the action of a policy maker within the government; [3] 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 [4] the

failure of the government to respond to a need (for example, training of

employees) 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 ofColaml)l`a, 326 F.3d 1302, 1306 (D.C. Cir. 2003) (citations omitted).

Here, Thompson’s due process claim against the District is not based on an enrolled

7

municipal policy, nor does he allege that the District was indifferent to the risk that his due
process rights would be infringed Rather, Thompson’s conception ofDistrict liability is
that Lottery Director King either was authorized by the District to make final municipal
policy such that the District may be held responsible for the violation of his due process
rights, or that King acted pursuant to a widespread and longstanding District custom or
practice of due process denial. See Pl.’s Br. 4.

As the District’s summary judgment motion and statement of undisputed material
facts contend that Thompson has failed to come forward with facts sufficient to find that
the District “had the requisite policy or custom” for § 1983 liability, “|:t]he burden thus
shift[s] to [plaintiff] to produce admissible evidence establishing a genuine issue of
material fact.” Bash v. District ofColuml)z`a, 595 F.3d 384, 386 (D.C. Cir. 2010) (citing
Celotex, 477 U.S. at 324). Viewing the record in Thompson’s favor as l must, 1 conclude
that he has not met his burden to identify such admissible evidence as to either of these
theories of municipal liability against the District. How so?

A. Final Policymaking Authority

Thompson contends that King’s personnel decisions constituted municipal “policy”
for which the District is liable. lt has long been true that under certain circumstances even
a “single act” may amount to municipal policy. See, e.g., Ba’. of Cty. Comm ’rs ofBryan
Czy. v. Brown, 520 U.S. 397, 404 (1997). But such circumstances are limited, lest the law
of municipal liability devolve into respondeat superior “[O]nly those municipal officials
who have ‘fznal policymaking authority’ may by their actions subject the government to

§ 1983 liability.” Je]j’es v. Barnes, 208 F.3d 49, 57 (2d Cir. 2000) (emphasis added)

8

(quoting Pe/nbaar, 475 U.S. at 483); Jett v. Dallas Inclep. Sclt. Dist., 491 U.S. 701, 737
(1989) (“the trial judge must identify those officials or governmental bodies who speak
with final policymaking authority for the local governmental actor concerning the action
alleged to have caused the particular constitutional or statutory violation at issue”).

l\/loreover, the municipal official must have final authority to set policy in the
“partz`calar area, or on [the] particular issae” involved in the challenged action. Mch`llz'an
v. Monroe Cty., Ala., 520 U.S. 781, 785 (1997) (emphases added); see also Praprotnl/c,
485 U.S. at 123 (official must be “responsible under state law for making policy in that
area ofthe [municipality’s] business” (emphasis in original)); Pernl)aar, 475 U.S. at 481
(official lnust “possess[] final authority to establish municipal policy with respect to the
action ordered”). Whether an official exercises “final policymaking authority” in the
relevant area is a legal question that must be decided by reference to “state and local
positive law, as well as ‘custom or usage’ having the force oflaw.” Jett, 491 U.S. at 737
(quoting Praprotnl`k, 485 U.S. at 124.n.1); see also McMz`llz`an, 520 U.S. at 786 (proper
“understanding of the actual function of a governmental official, in a particular area, will
necessarily be dependent on the definition of the official’s functions under relevant state
law”). “Where a plaintiff relies . . . on the theory that the conduct of a given official
represents official policy, it is incumbent on the plaintiff to establish that element as a
matter oflaw.” Je]j”es, 208 F.3d at 57~58.

ln this case, analytical prudence dictates that before assessing whether King had
final authority to set District policy, l define the “particular area” ofDistrict policymaking

that is relevant to my inquiry. ln Jett, for example, the plaintiff sued a school district

9

contending that he was denied due process when he was reassigned from a football
coaching position at one school to a non-coaching position at a different school. 491 U.S.
at 706-07. ln assessing whether the school district’s superintendent was a final
policymaker, the Jett Court focused on whether the superintendent “possessed final
policymaking authority in the area of employee transfers.” [a’. at 738; see also Lytle v.
Carl, 382 F.3d 978, 983 (9th Cir. 2004) (defining relevant policymaking area as
“employment-related disciplinary decisions for District employees”); Grecn v. Clayton
Cty., Ga., 335 F.3d 1326, 1331 (11th Cir. 2003) (defining relevant policymaking area as
“the entry and validation of warrants” and “the training and supervision of. . . employees
in that regard”).

According to Thompson, l should focus on whether King had final policymaking
authority in conducting a RIF, which Thompson argues was “the action that caused [his:|
injury.” See Pl.’s Br. 2, 7, 10. On two separate occasions, however, the Circuit Court has
held that Thompson’s procedural due process rights were triggered not by the RIF but by
his reassignment prior to the RIF. See Thompson ]1, 530 F.3d at 919 (posing the question
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 ofthe transfer”); Thompson 111, 832 F.3d at 344 (plaintiff`
“was deprived of a protected property interest in his Security Systems Administrator
position when he was transferred to the Security Officer position”); ia’. at 345 (“The bottom
line of our holding in leompson 11 was that Thompson, as a career civil servant, was

stripped of his property interest when he was placed in a position that had previously been

10

marked for elimination.”). Thus, even if`l was inclined to accept Thompson’s invitation to
focus on the RIF, our Circuit’s reasoning compels me to decline it.

Guided by our Circuit’s prior holdings l must consider whether King exercised
policymaking authority when he reassigned Thompson from Security Systems
Administrator to the doomed Security Officer position, not when King took the separate
and distinct employment action of including the latter position (and Thompson) in the
RlF_a decision regarding which Thompson did receive notice and an opportunity to
challenge See SUl\/IF jj 7. The relevant area of policymaking, then, is not implementing
a RIF, but making personnel decisions, in particular employee transfers resulting in
constructive discharge. With that in mind, Thompson’s reliance on King’s statutory
powers under the so-called “RIF Acts” is misplaced See Pl.’s Br. 7-8 (citing and
summarizing the District’s 1995 Budget Support Temporary Act and 1996 l\/lodified
Reduction-in-Force Temporary Amendment Act). That legislation temporarily provided
District agency heads, King among them, with full discretion to “identify positions for
abolishment” without limitation by “any other provision of law, regulation, or collective
bargaining agreement,” and it mandated that any District employee occupying an identified
position be separated “[n] otwithstanding any rights or procedures established by any other”
personnel statute. D.C. Code § l-625.5(a), (c) (1996 Supp.); see generally Washington
Teachers Union Local No. 6 v. Ba’. ofEalMC. ofDistrict of Cola/nl)ia, 109 F.3d 774, 777
(D.C. Cir. 1997); Stevens v. District ofColumbia Dep 't ofHealth, 150 A.3d 307, 314 (D.C.

2016).

11

The RIF legislation did not, however, vest in King any similarly unencumbered
power to constructively remove District personnel by transferring them from a secure
position to a position identified for abolishment. That is, while King’s decision to include
the Security Officer position in the RIF was unconstrained temporarily under District law,
King’s decision to reassign Thompson from Security Systems Administrator to Security
Officer remained subject to constraints and requirements imposed by other personnel laws
Specifically, District law in effect at the time mandated that King exercise his authority to
“[e]mploy other assistants and employees in accordance with the District of Columbia
Government Comprehensive Merit Personnel Act of 1978 [‘Cl\/lPA’]”_i.e., the same law
under which plaintiff claims he was denied due process D.C. Code § 2-2503 (1981); see
also D.C. Code § 3-1303(d)(3) (2001) (same)). The CMPA required each District agency
to “provide for ten (10) days advance notice in writing prior to the taking of any action
which adversely affects an employee,” unless the employee’s conduct presents an
immediate threat. D.C. Code § 1-606.4(b) (1981); see also Grant v. District ofColuml)ia_,
545 A.2d 1263, 1263 (D.C. 1988) (“each agency ofthe District government . . . must give
an employee ten days advance written notice of a proposed adverse action”); icl. at 1263-
64 (describing regulations promulgated under CMPA to govern adverse action process).
The law further afforded District employees “the right to prepare a written response” to
any notice of proposed adverse action, at least one independent internal review of the
proposed action and the employee’s response, and, in some cases, an adversarial hearing.
Ia’. § 1-606.4(0), (d). ln all cases, the District employee could be represented by counsel

and had the right to appeal the action. Icl. § 1-606.4(e), (f).

12

Given that Thompson’s reassignment amounted to a constructive removal_clearly
an action that adversely affected him_the Cl\/IPA should have afforded him the foregoing
statutory protections l do not agree that the RlF legislation, which by its terms exempted
certain enumerated personnel actions from the Cl\/lPA’s process requirements_the
selection of positions for abolishment and the separation of employees occupying such
positions_also exempted the antecedent, distinct personnel action of transferring an
employee to a doomed position. Cf. Tl/ionipson III, 530 F.3d at 450 (“the District seems to
have expressly exempted King from the ordinary requirements of the Cl\/lPA in making
these decisions”). To be sure, the result for Thompson was the same_termination_but
the reassignment and the RIF were distinct as a legal matter, and nothing in the RIF
legislation leads me to conclude that the CMPA ceased to protect Thompson at the time he
was transferred and constructively discharged lt follows then that King’s challenged
action_reassigning and thus constructively removing Thompson_was “constrained by
policies not of [King’s] making,” thereby precluding King from exercising final
policymaking authority in the area of personnel decisions like the one at issue here. See
Singletary v. District of Columbia, 766 F.3d 66, 73 (D.C. Cir. 2014) (parole revocation
board not a final policymaker for District in area of parole revocation where board was

“constrained by policies not of [its] making” (quoting Praprotnik, 485 U.S. at 127)).5

 

5 1 note that the RlF legislation itself included limited procedures for notice and
challenge that would have constrained King if the RIF legislation applied to Thompson’s
reassignment See D.C. Code § 1-625.5(f) (1996 Supp.) (“Each employee selected for
separation pursuant to this section shall be given written notice of at least 30 days before
the effective date of his or her separation.”); ia’. § 1.625.5(g) (permitting employees to

13

King’s apparent departure from the Cl\/lPA’s procedural protections does not alter
this conclusion. “When an official’s discretionary decisions are constrained by policies
not of that official’s making, those policies, rather than the subordinate’s departures from
them, are the act ofthe municipality.” Praprotnilc, 485 U.S. at 127; see Valentino v. Village
ofSoath Cnicago Heiglits, 575 F.3d 664, 676 (7th Cir. 2009) (factors relevant to final
policymaker analysis include “whether the official is constrained by policies of other
officials or legislative bodies”). King did not enact the CMPA, King was not authorized
by District law to ignore its requirements and, as such, King’s failure to afford Thompson
the process he was due under the CMPA prior to transferring him cannot be attributed to
the District. See Singletary, 766 F.3d at 713 (parole revocation board’s “decision to depart
from [District] policies by revoking Singletary’s parole based on unreliable hearsay was
not an act of the municipality for purposes of § 1983” (internal quotation marks and
alterations omitted)); Perez v. Metro. Transp. Auth., 883 F.Supp.2d 431, 437 (S.D.N.Y.
2012) (where allegations were not that officials acted pursuant to “policy formulation or
rulemaking authority” but instead that officials “had the authority to make decisions
pursuant to the rules in place,” “[s]uch allegations are insufficient to establish . . . liability
under Monell”). lndeed, the absence of any evidence that the Lottery Board directed or

otherwise approved King’s actions “suggests that the policymakers intended that [King

 

contest a RIF separation when, inter alia, the 30-day notice requirement was not followed);
see generally Washington Teaclzers Union Local No. 6, 109 F.3d at 782.

14

would] abide by the municipality’s stated policy,” as set forth in the CMPA. Triplett v.
DistrictofColuml)ia, 108 F.3d 1450, 1453 (D.C. Cir. l997).6

Plaintiff makes much of King’s general discretionary authority over Lottery
personnel matters See Pl.’s Br. 13. There is no question that King as Lottery Director
exercised decisionmaking authority over a variety ofemployment issues within the agency.
See ia’.; Thornpson III, 832 F.3d at 349 (King “drew up the list ofpositions to be terminated,
moved employees around to avoid adverse repercussions from the reduction in force, and
decided on the number and types of employees who should be eliminated”). But, “[t]he
fact that a particular official_even a policymaking official_has discretion in the exercise
of particular functions does not, without more, give rise to municipal liability based on an

exercise of that discretion.” Pe)nbaar, 475 U.S. at 481-82; see also Hanter v. Town of

 

6 The absence of any such evidence of approval also disposes of Thompson’s
assertion that the District “ratified” King’s unlawful action. See Pl.’s Br. 15. To sustain a
ratification theory of municipal liability, a plaintiff must identify evidence that the
“authorized policymak`ers” knew of and affirmatively approved both the acting official’s
“decision and the basis for it.” Praprotnik, 485 U.S. at 127; see, e.g., Gillette v. Delniore,
979 F.2d 1342, 1348 (9th Cir. 1992) (no ratification where “no evidence that the City
manager made a deliberate choice to endorse the Fire Chief`s decision and the basis for
it"’). The “mere refusal to overrule a subordinate’s completed act does not constitute
approval.” Cnristie v. lopa, 176 F.3d 1231, 1239 (9th Cir. 1999); see also Gillette, 979
F.2d at 1348 (policymaker must “approve a subordinate’s decision and the basis for it
before the policymaker will be deemed to have ratified the subordinate’s discretionary
decision” (emphasis omitted)); Mila)n v. City ofSan Antonio, 113 Fed. Appx. 622, 626-27
(5th Cir. 2004) (neither going along with nor failing to investigate a subordinate’s decision
“vest[s] final policymaking authority in the subordinate”). As plaintiff has not identified
any record evidence that the District affirmatively approved King’s action and the basis for
it, he has not shown that there is a material factual dispute regarding ratification. See
Gillette, 979 F.2d at 1348. Cf Meyers v. City ofCineinnati, 14 F.3d 1115, 1119 (6th Cir.
1994); Melton v. City of()kla. Ciij), 879 F.2d 706, 725 (10th Cir. 1989) (ratification where
evidence showed police chief who fired plaintiff had met with final policymaker who
“expressly approved such dismissal”).

15

Moeksville, Nortlz Carolina, 897 F.3d 538, 561 (4th Cir. 2018) (police chief’s “discretion
to hire and fire employees” did not show that he had “responsibility for establishing related
policy” regarding personnel decisions (internal quotation marks omitted)). lf it did, “the
result would be . . . respondeat superior liability,’ which Monell had rejected.” Triplett,
108 F.3d at 1453 (quoting Praprotnik, 485 U.S. at 126); see also Littlejohn v. City ofNew
Yorlc, 795 F.3d 297, 315 (2d Cir. 2015) (official “was not a final municipal policymaker
such that her isolated personnel decision to demote [plaintiffj could be said to represent
official City policy”); Gillette v. Del)nore, 979 F.2d 1342, 1350 (9th Cir. 1992) (fire chiefs
discretionary authority to hire and fire employees did not make him responsible for
establishing city employment policy).

That King lacked relevant final policymaking authority is confirmed by the Lottery
Board’s general supervision and oversight authority regarding King’s employment
decisions District law provided that King’s power to “[e]mploy other assistants and
employees,” in addition to being constrained by the CMPA, was “subject to the direction
and supervision of the Board.” D.C. Code § 2-2503 (1981); see also D.C. Code § 3-
1303(d)(3) (2001) (same). That oversight cuts strongly against the notion that King was
empowered to make final District employment policy of the type at issue here. ln
Praprotnik, for example, the Supreme Court rejected Monell liability where the City of St.
Louis maintained a supervisory commission “empowered . . . to review and correct
improper personnel actions.” 485 U.S. at 128. Similarly, in Triplett, our Circuit Court
rejected Monell liability against the District because the prison officials responsible for the

challenged conduct were subject to “the general direction and supervision” of the Director

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ofthe District’s Department of`Corrections, and the Department maintained “the authority
to promulgate rules and regulations for” the prisons, “subject to approval by the District’s
Council.” 108 F.3d at 1453; see also Hunter, 897 F.3d at 561 (police chief lacked final
policymaking authority regarding personnel decisions where such decisions were “always
subject to review by” the town manager); Delia v. Benton Cty., No. 05-6123, 2007 WL
894829, at *3 (D. Or. l\/lar. 21, 2007) (rejecting Monell claim where county official “had
administrative decisionmaking authority with respect to the decision not to hire plaintif"
but official “exercise[d] this power under constraints imposed by” county authorities).
Thompson counters that the absence of record evidence that the Lottery Board in
fact exercised its authority to direct and supervise King’s decisionmaking renders the
aforementioned written policy immaterial. Pl.’s Br. 12-14. Not so. ln Praprotni/c, a
plurality of the Supreme Court rejected Justice Brennan’s concurring view that courts
“must determine where [the relevant] policymaking authority actually resides” 485 U.S.
at 143 (Brennan, J., concurring) (emphasis added). The Praprotnik plurality held that “ad
hoc searches for officials possessing such ‘de facto’ authority would serve primarily to
foster needless unpredictability in the application of § 1983” and would move the law of
municipal liability closer to respondeat superior. Id. at 131. ln that case, a municipal
architect was transferred between city agencies before being laid off. ]d. at 115-16. The
architect’s superiors at both agencies had discretion to appoint and transfer employees, but
the city’s civil service board retained the authority to review any such decisions, along with
the power to interpret and enforce the relevant municipal law requiring certain personnel

decisions to be based on merit and fitness Id. ln the architect’s case, the civil service

17

board declined to review either the transfer or the layoff. ld. The Eighth Circuit, relying
on, inter alia, the civil service board’s lack of de facto review, held that the architect’s
superiors were final policymakers under Monell. Id. at 129. A plurality of the Supreme
Court disagreed, holding that the board’s failure to exercise its review power was
insufficient to conclude that the agency superiors had final policymaking authority
regarding personnel transfers and layoffs Id. “Simply going along with discretionary
decisions made by one’s subordinates . . . is not a delegation to them of the authority to
make policy. lt is equally consistent with a presumption that the subordinates are faithfully
attempting to comply with the policies that are supposed to guide them.” Id. at 130.

As such, the fact that King exercised his discretion over personnel decisions “subject
to review by the municipality’s authorized policymakers,” while not dispositive, indicates
that he was not a final policymaker, even if that review authority was not, in fact, exercised.
[d. at 127; see also Kujawski v. Bd. ofCo/nni ’rs ofBartlzoloniew Cty., Ind., 183 F.3d 734,
739 (7th Cir. 1999) (it is a “well-established principle that the mere unreviewed discretion
to make hiring and firing decisions does not amount to policymaking authority,” as “[t]here
must be a delegation of authority to set policy for hiring and firing, not a delegation of only
the final authority to hire and fire”); Polite v. Town ofClar/cstown, 120 F.Supp.2d 381, 385
(S.D.N.Y. 2000) (applying Praprotnik and rejecting Monell liability where applicable law
provided that officials were “subject to the general authority and direction of the town
board and to such orders and regulations as the town board may prescribe, not inconsistent
with the law” (internal quotation marks omitted)). There is no record evidence that the

Board so abdicated its supervisory powers as to establish a “custom or usage” of non-

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supervision “having the force of law.” See Praprotni/c, 485 U.S. at 124 n.l. Although
King testified that no one supervised his personnel decisions, Tl/io/npson 111, 832 F.3d at
349, that fact “is equally consistent with a presumption” by the Lottery Board and the
District that King would “faithfully attempt[] to comply with the policies” in placefi.e.,
the Cl\/IPA, see Praprotnik, 485 U.S. at 130. The Lottery Board’s “mere failure to
investigate” or supervise King’s exercise of his discretionary decisionmaking authority
over personnel issues “does not amount to a delegation of policymaking authority.”
Praprotnik, 485 U.S. at 130 (failure to supervise does not vest policymaking authority in
subordinate “especially where (as here) the wrongfulness of the subordinate’s decision
arises from a retaliatory motive or other unstated rationale”).

For these reasons, Thompson has not identified specific facts establishing a genuine
triable issue concerning his final policymaker theory of District liability.

B. Custom or Practice

Plaintiffs second theory of District liability is that King acted pursuant to a
“custom” that, while not “formally approved by an appropriate decisionmaker,” subjects
the District “to liability on the theory that the relevant practice is so widespread as to have
the force oflaw.” Brown, 520 U.S. at 404; see Pl.’s Br. 19-20. There are several problems
with this contention. First, Thompson’s conception of custom liability is squarely at odds
with the Circuit Court’s articulation ofthe constitutional violation in this case: the failure
to afford Thompson notice and a hearing before transferring him to a position slated for
elimination. See leo/npson 111, 832 F.3d at 345. Not only that, Thompson expressly

“agrees that he cannot demonstrate that he suffered injury because of a District custom,

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policy, or practice of not providing constitutionally-required notice to employees entitled
to such notice.” Pl.’s Br. 19. This concession alone is sufficient to dispose of his custom
liability claim.7

Nevertheless, Thompson argues that he “was fired pursuant to a municipal custom
of retaliating.” ld. (internal quotation marks omitted). Even if a retaliation theory were
viable, however, Thompson would still have to “prove the existence of a widespread
practice that, although not authorized by written law or express municipal policy, is so
permanent and well settled as to constitute a custom or usage with the force of law.”
Praprotnik, 485 U.S. at 127 (emphases added) (internal quotation marks omitted); see also
Jett, 491 U.S. at 737 (municipal policymaker may be found to have caused subordinate
officials’ conduct by reason ofthe policymaker’s “acquiescence in a longstanding practice
or custom which constitutes the standard operating procedure of the local governmental
entity” (internal quotation marks omitted)); Sorlucco v. New York City Police Dep ’t, 971
F.2d 864, 871 (2d Cir. 1992) (municipality may be held liable where the unconstitutional
conduct of subordinate employees is “so manifest as to imply the constructive acquiescence
of senior policy-making officials”).

Here, Thompson points only to allegations made against the Lottery Board in Fox
v. District of Columbia, 990 F.Supp. 13, 15 (D.D.C. 1997). See Pl.’s Br. 19 n.10. Put

simply, that is not enough to “allow a reasonable jury to return a verdict in [plaintiff`s]

 

7 Arguably, the scope of Thompson’s concession resolves the entire Monell issue in
the District’s favor. But, given this case’s history, l will treat the statement as ill-considered
lawyerly rhetoric rather than a voluntary waiver of plaintiff’s Monell claim.

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favor . . . on this precise question.” Rol)inson v. Pezzat, 818 F.3d 1, 8 (D.C. Cir. 2016)
(internal quotation marks and alterations omitted). As an initial matter, the District
correctly points out that the allegations in Fox involved events that occurred when King
was not even employed by the District. See Def.’s Reply to Pl.’s Opp’n to Def.’s l\/lot. for
Summ. J. 9 [Dkt. # 198] (citing Fox v. District ofColunibia, 83 F.3d 1491, 1493 (D.C. Cir.
1996)). But even ifFox were germane factually, Thompson’s custom claim still could not
survive summaryjudgment. Take Tal)b v. District ofColunil)ia, 605 F.Supp.2d 89 (D.D.C.
2009) as an example. There, this Court rejected the theory “that the District of Columbia
had a policy or practice of retaliating against employees for exercising the right to free
speech under the First Amendinent” because an isolated “incident of alleged retaliation
against plaintiff does not qualify as pervasive.” ld. at 96 (citing Carter v. District of
Colu)nl)ia, 795 F.2d 116, 123-24 (D.C. Cir. 1986)); see also Mejia v. City ofNew York,
228 F.Supp.2d 234, 253-54 (E.D.N.Y. 2002) (no custom or practice where challenged
action “was the first and only” of its kind). Such is the case here. Thompson has not
identified specific facts showing a genuine triable issue as to whether the District had a
widespread and pervasive custom or practice of denying procedural due process, and this

theory of Monell liability cannot survive summary judgment8

 

8 The record also demonstrates that there is no genuine dispute that Thompson’s
Monell claim fails for lack of causation. See Brown, 520 U.S. at 404 (plaintiff in § 1983
action must not only “identify conduct properly attributable to the municipality” but also
demonstrate “a direct causal link between the municipal action and the deprivation of
federal rights”); Reinier v. Smith, 663 F.2d 1316, 1322 n. 4 (5th Cir. 1981)(“p1aintiff
cannot succeed in a [§] 1983 action” without “demonstrat[ing] a causal connection
between the state official’s alleged wrongful action and his deprivation of life, liberty, or
property”). “ln procedural due process claims, the deprivation by state action of a

21

ln the end, Thompson seeks to hold the District vicariously liable for the isolated
conduct of its non-policymaking employee, King. Unfortunately for 'l`hompson, the law
does not allow for municipal liability under § 1983 in such a case.
CONCLUSION
Thus, for all of the foregoing reasons, the District’s motion for summary judgment
is GRANTED. An order consistent with this l\/lemorandum Opinion is separately and

contemporaneously issued herewith.

, _l
mcmaan
United State istrict Judge

 

 

constitutionally protected interest in ‘life, liberty, or property’ is not in itself
unconstitutional ; what is unconstitutional is the deprivation of such an interest without due
process oflaw.” Zinernion v. Burch, 494 U.S. 113, 125 (1990) (emphasis in original). As
such, Thompson’s rights iii this case were violated not when he was deprived of his
property interest but when he failed to receive notice and an opportunity to challenge that
deprivation See, e.g., Oden, LLC v. City ofRonie, Ga., 707 Fed. Appx. 584, 588 (1lth Cir.
2017) (“relevant act for assessing municipal liability” for procedural due process claim is
not deprivation but “lack ofnotice”). The parties agree that King, as Lottery Director, “was
not responsible for providing Plaintiff pre-transfer notice and an opportunity to be heard,
as this task was handled by the agency’s Huinan Resources Division or by other individuals
in the agency.” SUl\/IF 11 4; see also Dep. of Frederick King 4 [Dkt. # 195-3]; Decl. of
Frederick King 2 [Dkt. # 195-4]. As King was not responsible for providing process, King
could not have caused Thompson’s constitutional injury, and nothing in the record suggests
that the agency employees actually responsible for providing process could create Monell
liability for the District.

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