Barber v. Dist. of Columbia Gov't, 17-cv-620 (KBJ)

• Decision Date: 13 August 2019
• Docket Number: No. 17-cv-620 (KBJ),17-cv-620 (KBJ)
• Citation: 394 F.Supp.3d 49
• Parties: Claudia A. BARBER, Plaintiff, v. DISTRICT OF COLUMBIA GOVERNMENT, et al., Defendants.
• Court: U.S. District Court — District of Columbia

394 F.Supp.3d 49

Claudia A. BARBER, Plaintiff,
v.
DISTRICT OF COLUMBIA GOVERNMENT, et al., Defendants.

No. 17-cv-620 (KBJ)

United States District Court, District of Columbia.

Signed August 13, 2019

394 F.Supp.3d 54

David A. Branch, Law Offices of David A. Branch & Associates, PLLC, Washington, DC, for Plaintiff.

Cara J. Spencer, Kerslyn D. Featherstone, Office of the Attorney General for the District of Columbia, Justin Michael Flint, Abby A. Franke, Eccleston & Wolf, P.C., Washington, DC, for Defendants.

MEMORANDUM OPINION

KETANJI BROWN JACKSON, United States District Judge

Plaintiff Claudia Barber served as an Administrative Law Judge ("ALJ") for the District of Columbia Office of Administrative Hearings ("OAH") for eleven years, from August of 2005 until August of 2016, when she was terminated from that position. (See, e.g. , First Am. Compl. ("Barber I Compl."), ECF No. 11, ¶ 8; Compl. ("Barber II Compl."), No. 17-cv-1680, ECF No. 1-3, ¶ 7.)¹ In two consolidated complaints, Barber brings eleven claims against five defendants related to her tenure and eventual termination.² Generally speaking, Barber alleges that despite meeting or exceeding performance expectations throughout her service as an ALJ at OAH, she experienced discrimination based on her race and color, including repeated denials of promotions. (See Barber I Compl. ¶ 8; Barber II Compl. ¶¶ 7–18.) Barber also claims that her supervisors retaliated against her between November of 2014 and January of 2016, after she made both formal and informal complaints to management about racial discrimination

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and other concerns. (See Barber I Compl. ¶¶ 60–62; Barber II Compl. ¶¶ 8–18, 38–39, 55–56.)

Before this Court at present are two motions that Defendants have filed, which, collectively, seek to dismiss all of the counts in Barber's two consolidated complaints for various reasons. (See Dist. Defs.' Mot. to Dismiss Pl.'s Compl. with Prejudice ("Dist. Defs.' Mot."), ECF No 25; Def. Jarashow's Mot. to Dismiss ("Jarashow's Mot."), ECF No. 26.) As explained below, this Court concludes that the Defendants' motions must be GRANTED IN PART AND DENIED IN PART . In short, the Court will dismiss all of the counts that pertain to constitutional and tort claims, but will permit the counts that relate to employment discrimination and retaliation to proceed.

I.

The facts recited in this opinion are gleaned from Barber's consolidated complaints and must be accepted as true, see Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555–56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ; notably, they need not be recounted in full for the purpose of the instant ruling. It suffices to say here that Barber alleges that despite meeting or exceeding performance expectations throughout her tenure as an ALJ at OAH, she experienced discrimination based on her race and color—including repeated denials of promotions—as well as retaliation when she made complaints about her supervisors' allegedly discriminatory practices. (See Barber I Compl. ¶ 8; Barber II Compl. ¶¶ 7–18.)

Three examples illustrate some of the many alleged instances of discrimination and retaliation that are recounted in Barber's consolidated complaints. Barber alleges that in November of 2014, she complained to Wanda Tucker, the interim Chief ALJ, that "African American ALJs routinely received less complex and less serious cases than their Caucasian counterparts." (Barber II Compl. ¶ 8.) Approximately three days after complaining to Tucker, Barber allegedly was not assigned to a Principal ALJ ("PALJ") position to fill a vacancy, even though she had been routinely assigned to fill such vacancies over the previous nine years. (Id. ) Several months later, when another PALJ position opened up, Tucker allegedly "instituted unreasonable selection criteria in an effort to disqualify and retaliate against [Barber]" and to "discourage and eliminate African American ALJs from applying for the open position[.]" (Id. ¶ 13.) Indeed, Barber alleges that when she expressed her interest in the position, Tucker required her to complete "the equivalent of a literacy test, which ... Barber found humiliating." (Id. ) And eventually Paul Handy, a Caucasian male, was selected for the PALJ position. (Id. ) Thereafter, in January of 2016, OAH Chief ALJ Eugene Adams "announced a new plan for the fair selection of PALJs" whereby the OAH would "promote those ALJs who volunteer to be PALJs alphabetically[,]" and under this new system, Barber was allegedly the next ALJ slated to be promoted. (Id. ¶ 18.) However, Barber alleges that Adams promoted a Caucasian woman over her instead, ignoring the selection plan. (Id. ) According to Barber's pleadings, this "was the third time a less qualified Caucasian ALJ was selected for a PALJ position over ... Barber." (Id. )

Due to Barber's concerns with her workplace environment and the limited opportunities for advancement as an ALJ, Barber began to consider running for a position as a judge on the Circuit Court for Anne Arundel, Maryland. (See id. ¶ 16.) She sought guidance from the District's Commission on Selection and Tenure

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("COST") and the Board of Ethics and Government Accountability with respect to her ability to run for the Maryland judicial position without resigning from her position as an ALJ in the District of Columbia. (See Barber I Compl. ¶¶ 9–10.) After allegedly receiving mixed responses from some District employees and no responses from others, Barber filed a Certificate for Candidacy in Maryland on January 20, 2016, listing her party affiliation as "Judicial." (See id. ¶¶ 9–13.)

In February of 2016, Defendant Jarashow, a Maryland attorney and former Anne Arundel County Circuit Court judge "who was supporting other candidates for the vacant circuit judge positions[,]" informed Chief ALJ Adams of Barber's candidacy. (See id. ¶ 15.) Jarashow allegedly maintained that two provisions of the District's Code of Ethics for ALJs required Barber to resign from her ALJ position in DC upon becoming a judicial candidate elsewhere. (See id. ) Defendant Chief ALJ Adams subsequently placed Barber on administrative leave with pay, and after a COST hearing in July of 2016, Barber's employment as an ALJ was terminated for an ethics violation on August 2, 2016. (See id. ¶¶ 21, 32–33.)

Barber filed a complaint against all Defendants in this Court on April 6, 2017, which she amended on May 22, 2017 ("Barber I "). (See Compl., ECF No. 1; Barber I Compl.) The operative complaint in Barber I contains seven counts: two constitutional claims against the District alleging violations of procedural and substantive due process; a constitutional claim against the District pursuant to section 1983 of Title 42 of the United States Code (" Section 1983"); a civil conspiracy claim brought under section 1985 of Title 42 of the United States Code (" Section 1985") against all Defendants; a claim under the D.C. Whistleblower Protection Act (DCWPA), D.C. Code §§ 1-615.51 – 1-615.59, against the District Defendants; and two common law tort claims against Jarashow. (See Barber I Compl. at 12–22.)³ On July 19, 2017, Barber filed a second and separate complaint against the District and Adams in the Superior Court of the District of Columbia ("Barber II "); Defendants removed this complaint to federal court on September 11, 2017. (See Not. of Removal, No. 17-cv-1860, ECF No. 1.) The complaint in Barber II includes four counts alleging workplace discrimination brought pursuant to the D.C. Human Rights Act (DCHRA), D.C. Code §§ 2–1401.01 – 2-1411.06, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e – 2000e-17. (See Barber II Compl. at 12–17.) This Court granted the District Defendants' motion to consolidate the two cases on October 17, 2017, and ordered all Defendants to file omnibus responses to both complaints. (See Order Granting Mot. to Consolidate, ECF No. 22, at 4–5.)

On November 11, 2017, Defendants filed two motions to dismiss Barber's consolidated complaints. The Court held a lengthy motion hearing on May 9, 2019, after which it took the motions under advisement. (See May 9, 2019 Hr'g Tr. ("Hr'g Tr.").)

II.

As the Court explained to the parties during the motion hearing, a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) "tests the legal sufficiency of a complaint." Browning v. Clinton , 292 F.3d 235, 242 (D.C. Cir. 2002).

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Therefore, "[t]o survive a 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks and citation omitted). The plaintiff is not required to provide "detailed factual allegations," but rather must only plead enough facts to "raise a right to relief above the speculative level" and to "nudge[ ] their claims across the line from conceivable to plausible[.]" Twombly , 550 U.S. at 555, 570, 127 S.Ct. 1955 (internal quotation marks and citation omitted). At the motion-to-dismiss phase, a court must "construe the complaint liberally, granting plaintiff the benefit of...